No IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 1 No. 18-2089 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT, et al., Plaintiffs-Appellants, vs. RYAN ZINKE, et al., Defendants-Appellees, and ENDURING RESOURCES, LLC, et al. Intervenors-Defendants-Appellees On Appeal from the United States District Court for the District of New Mexico Civil Action No. 1:15-cv-00209-JB-SCY, The Honorable Judge James O. Browning UNCITED PRELIMINARY BRIEF (DEFERRED APPENDIX APPEAL) OF AMICI CURIAE ALL PUEBLO COUNCIL OF GOVERNORS AND NATIONAL TRUST FOR HISTORIC PRESERVATION, IN SUPPORT OF APPELLANTS 00 (Oral Argument Not Requested) Jeanette Wolfley, Esq. Ann Berkley Rodgers, Esq. Gabriel Pacyniak, Esq. Chestnut Law Offices, P.A. Clifford Villa, Esq. 121 Tijeras, NE, Suite 2001 Brandon Ilgen, clinical law student Albuquerque, NM 87102 Sabina Gaynor, clinical law student TEL: (505) 842-5864 Paul Roybal, clinical law student All Pueblo Council of Governors Nicole Sanchez, clinical law student Diego Trujillo, clinical law student Elizabeth S. Merritt, Esq. Ryan Vetter, clinical law student Sharee Williamson, Esq. University of New Mexico School of Law National Trust for Historic Preservation 1117 Stanford Drive, NE 2600 Virginia Avenue NW, Ste.1100 Albuquerque, NM 87131 Washington, DC 20037 TEL: (505) 277-6559 TEL: (202) 588-6035 All Pueblo Council of Governors National Trust for Historic Preservation ATTORNEYS FOR AMICI CURIAE

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 2 TABLE OF CONTENTS TABLE OF CONTENTS... ii CORPORATE DISCLOSURE STATEMENT... iii TABLE OF AUTHORITIES... iv IDENTITY AND INTERESTS OF AMICI CURIAE... 1 RULE 29(A)(4) STATEMENT... 3 SUMMARY OF ARGUMENT... 4 BACKGROUND... 7 ARGUMENT... 8 I. BLM DID NOT MEET NHPA REQUIREMENTS AND TRUST DUTY OBLIGATIONS FOR GOVERNMENT-TO-GOVERNMENT TRIBAL CONSULTATION PRIOR TO GRANTING APDS... 8 A. The 2014 Protocol Cannot be Used to Abrogate Tribal Consultation Requirements Mandated by Section 106 and other Federal Laws.... 11 B. Section 106 Requires Extensive, Reasonable, Good Faith Consultation, and BLM did Not Engage in Such Consultation with the Pueblos Prior to Granting APDs.... 13 II. DUE TO LACK OF CONSULTATION, BLM UNLAWFULLY RELIED ON STANDARD APES THAT DID NOT TAKE INTO ACCOUNT POTENTIAL INDIRECT AND CUMULATIVE ADVERSE EFFECTS ON PUEBLO TCPS... 20 A. Tribal Consultation is Essential to Identifying Historic Properties, Understanding the Characteristics, and Properly Defining the APE under NHPA... 22 B. Even If The 2014 Protocol Governed The APE Determination, Tribal Consultation Was Still Required In Drawing The APE.... 27 CONCLUSION... 29 CERTIFICATE OF COMPLIANCE... 33 CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS... 34 CERTIFICATE OF SERVICE... 35 ii

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 3 CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1(a), Amici All Pueblo Council of Governors and the National Trust for Historic Preservation make the following disclosures: 1. For non-governmental corporate parties please list all parent corporations: None. 2. For non-governmental corporate parties list all publicly held companies that hold 10% or more of the party s stock: There is no such corporation. Dated: September 7, 2018 /s/ Jeanette Wolfley Jeanette Wolfley, Esq. University of New Mexico School of Law 1117 Stanford Drive, NE Albuquerque, NM 87131 (505) 277-3010 wolfley@law.unm.edu iii

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 4 TABLE OF AUTHORITIES Cases Page(s) Cheyenne-Arapahoe v. U.S., 966 F.2d 583 (10th Cir. 1992)... 10 Coal. of Concerned Citizens to Make Art Smart v. Fed. Transit Admin., 843 F.3d 886 (10th Cir. 2016)... 9 Comanche Nation v. United States, 2008 WL 4426621 (W.D. Okla. Sept. 23, 2008)... 15, 16, 17, 19, 20, 25, 26 HRI, Inc. v. EPA, 198 F.3d 1224 (10th Cir. 2000)... 10 Mobile Oil Expl. & Producing Southeast, Inc. v. U.S., 530 U.S. 604 (2000)... 11 Oglala Sioux Tribe v. Andrus, 603 F.2d 707 (8th Cir. 1970)... 15 Oneida County v. Oneida Indian Nation, 470 U.S. 226 (1985)... 10 Pueblo of Sandia v. U.S., 50 F.3d 856 (10th Cir. 1995)... 15, 16, 19 Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dep't of Interior, 755 F. Supp. 2d 1104 (S.D. Cal. 2010)... 5, 14, 15, 20 Southern Utah Wilderness Alliance v. Burke, 981 F. Supp. 2d 1099 (D. Utah 2013)... 9 Tyler v. Cuomo, 236 F.3d 1124 (9th Cir. 2000)... 11 Statutes 5 U.S.C. 706(2)(A)... 29 54 U.S.C. 302706... 12 54 U.S.C. 302706(a)... 4, 10 54 U.S.C. 302706(b)... 4, 8, 10 54 U.S.C. 302706(b)(1)... 13 54 U.S.C. 306108... 4, 8 54 U.S.C. 304101(8)... 3 54 U.S.C. 304108(a)... 3 54 U.S.C. 312102(a)... 3 Pub. L. No. 102 575, 4006(a)(2), 106 Stat. 4755 (1992)... 7 iv

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 5 Regulations 36 C.F.R. 60.4... 23 36 C.F.R. 800.1(a)... 10 36 C.F.R. 800.2... 10 36 C.F.R. 800.2(b)(1)... 15 36 C.F.R. 800.2(c)(2)(ii)(A)... 14 36 C.F.R. 800.2(ii)(A)... 13 36 C.F.R. 800.3... 28 36 C.F.R. 800.3(f)(2)... 5, 9 36 C.F.R. 800.4(a)... 5, 9 36 C.F.R. 800.4(a)(3)... 15 36 C.F.R. 800.4(a)(4)... 14 36 C.F.R. 800.4(b)(1)... 5, 15, 19, 20 36 C.F.R. 800.5... 5, 9 36 C.F.R. 800.5(a)(1)... 23, 24 36 C.F.R. 800.5(a)(2)(v)... 25 36 C.F.R. 800.6... 5, 9 36 C.F.R. 800.8(c)... 28 36 C.F.R. 800.14... 28 36 C.F.R. 800.14(b)... 11 36 C.F.R. 800.16(d)... 5, 9 36 C.F.R 800.3 to 800.7... 28 Other Authorities Exec. Order No. 13175, 65 Fed. Reg. 67249 (Nov. 9, 2000)... 14, 15 John W. Ragsdale, Jr., The Rise and Fall of the Chacoan State, 64 UMKC L. Rev. 485, 487 (1996)... 7 U.S. Dep t of Interior, Nat l Park Serv., Cultural Res., Nat l Register, Federal Register Bulletin 15, How to Apply The National Criteria For Evaluation 44 (1990)... 23, 24, 25 U.S. Dep t of Interior, Nat l Park Serv., Cultural Res., Nat l Register, Federal Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties 1 (1998)... 23, 24, 25 v

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 6 IDENTITY AND INTERESTS OF AMICI CURIAE Amici are the All Pueblo Council of Governors ( APCG ) and the National Trust for Historic Preservation in the United States ( National Trust ). APCG promotes, fosters, protects and encourages the social, cultural, and traditional well-being of nineteen (19) Pueblo Nations in New Mexico and one (1) Pueblo Nation in Texas. 1 This case is of special significance to the APCG because it concerns the use and protection of a vast cultural landscape, the Chaco Canyon National Historic Park and the region surrounding it, known as the Greater Chaco Landscape, which is sacred to the APCG Pueblos. The APCG Pueblos are the direct descendants of and heirs to the cultures of the first inhabitants of the Greater Chaco Landscape. APCG asserts that the oil and gas permits in this matter will adversely affect the cultural and natural resources of APCG s member Pueblos. Accordingly, APCG has a profound interest in ensuring that the review of permits take into account concerns expressed by the Pueblos through required forms of consultation. 1 The twenty tribal governments in alphabetical order are: Acoma; Cochiti; Isleta; Jemez; Laguna; Nambe; Ohkay Owingeh; Picuris; Pojoaque; Sandia; San Felipe; San Ildefonso; Santa Ana; Santa Clara; Santo Domingo; Taos; Tesuque; Ysleta Del Sur; Zia; and Zuni. 1

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 7 APCG has recently filed protests against leasing certain parcels in the area for oil and gas development. The National Trust is a private nonprofit organization chartered by Congress in 1949 to facilitate public participation in the preservation of our nation's heritage, and to further the historic preservation policy of the United States. See 54 U.S.C. 312102(a). With more than one million members and supporters around the country, the National Trust works to protect significant historic sites and to advocate for historic preservation as a fundamental value in programs and policies at all levels of government. In addition, the National Trust has been designated by Congress as a member of the Advisory Council on Historic Preservation, which is responsible for working with federal agencies to implement compliance with Section 106 of the National Historic Preservation Act ( NHPA ). Id. 304101(8), 304108(a). The National Trust has also been engaged in efforts to protect the historic resources of the Greater Chaco Landscape for years, including participating as a consulting party in Section 106 reviews and filing protests against oil and gas leasing proposals. Increasing threats to cultural resource preservation caused by energy development associated with the Mancos-Gallup Shale formation in northwest New Mexico led the National Trust to include the Greater Chaco Landscape on its list of America s 11 Most Endangered Historic Places in 2011. 2

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 8 RULE 29(A)(4) STATEMENT Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), Amici certify that their Counsel authorized the brief in whole, no party or party s counsel contributed money that was intended to fund preparing or submitting the brief, and no person other than Amici contributed money that was intended to fund preparing or submitting the brief. 3

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 9 SUMMARY OF ARGUMENT The Bureau of Land Management ( BLM ) failed to conduct adequate consultation with the Pueblos or the New Mexico State Historic Preservation Officer ( NM SHPO ) in the approval of Applications for Permits to Drill ( APDs ). Amici wish to provide this Court with greater context for understanding BLM s consultation requirements under the NHPA, NHPA s implementing regulations, and the 2014 Protocol, a programmatic agreement between BLM and the NM SHPO ( 2014 Protocol ). Section 106 of the NHPA requires federal agencies to take into account the effects of their undertaking on historic properties, 54 U.S.C. 306108, including potential adverse effects on Tribal traditional cultural properties ( TCPs ), Id. 302706(b). 2 Federal agencies are required to (1) identify any interested Tribes and consulting parties; (2) gather information from Tribes and others to identify potentially affected historic properties, including TCPs, and identify an area of potential effects ( APEs ) for the undertaking; (3) determine whether the undertaking would have adverse effects on the historic properties; and (4) consider 2 The NHPA uses the term property of traditional religious and cultural importance to an Indian tribe. 54 U.S.C. 302706(a). Traditional cultural property, or TCP, is now widely used as a term of art to describe the same types of properties. TCP will be used in this brief. 4

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 10 ways to avoid, minimize or mitigate such adverse effects. 36 C.F.R. 800.3(f)(2); 800.4(a); 800.5; 800.6; 800.16(d). In this case, BLM failed at the first and second step, when the agency did not consult with the Pueblos and, because of that lack of consultation, also failed to take into account how approving the APDs could adversely affect Pueblo TCPs. NHPA s Section 106 and its implementing regulations require extensive tribal consultation to inform both the federal agency and the NM SHPO, because often only Tribes have the specialized knowledge required to identify TCPs that could be adversely affected by federal undertakings. Agencies are required to make reasonable and good faith efforts to achieve meaningful consultation with Tribes, and to give special consideration to the information received. 36 C.F.R. 800.4(b)(1); Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dep't of Interior, 755 F. Supp. 2d 1104, 1109 (S.D. Cal. 2010). Unfortunately, the record does not reflect meaningful consultation with the Pueblos in this matter. As a result, BLM could not and did not meet its legal responsibilities to identify historic resources because the agency lacked the independent expertise and information to identify historic sites that are significant to the Pueblos. This necessarily resulted in a failure to properly define the APE and to adequately consider adverse effects to Pueblos TCPs, thus violating the NHPA. 5

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 11 Instead of consulting with the Pueblos to identify historic resources and determine the appropriate APEs, BLM unlawfully relied on a standard APE for well sites developed in an agreement between BLM and NM SHPO. This 2014 State Protocol Between Bureau of Land Management and the New Mexico State Historic Preservation Officer Regarding the Manner in which BLM will Meet its Responsibilities Under the National Historic Preservation Act in New Mexico established processes for conducting Section 106 consultation for all of BLM s undertakings in the state. The Pueblos are not a party to the agreement, and it cannot be used to undermine statutory Tribal rights to consultation under the NHPA. Moreover, even if the 2014 Protocol is applied in this case, it explicitly requires Tribal and NM SHPO consultation in defining the APEs because the matter is complicated and controversial by the Protocol s own terms. BLM s issuance of APDs without tribal consultation and narrowly drawing the APEs without considering indirect and cumulative adverse effects on Pueblo TCPs was arbitrary and capricious, an abuse of discretion, and not in accordance with law. Amici urge this Court to remand with a requirement that the Pueblos and all affected Tribes be meaningfully consulted. 6

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 12 BACKGROUND The Pueblo people trace their ancestry to the civilizations that existed in the Greater Chaco Landscape since the tenth century. See John W. Ragsdale, Jr., The Rise and Fall of the Chacoan State, 64 UMKC L. Rev. 485, 487 (1996). The Pueblos are place-based societies who maintain ongoing, living spiritual connections to ancestral lands within the Greater Chaco Landscape. The Pueblos worldview often emphasizes movement between and among significant locations. This includes sacred routes between Hovenweep on the Utah/Colorado border; the Bears Ears Region, Utah; Mesa Verde, Colorado; the Aztec ruins; Chaco Canyon, New Mexico; and the locations of the Pueblos today. Chaco Canyon and the surrounding landscape contains prime examples of the kind of TCPs that Congress sought to safeguard in its 1992 amendments to the NHPA. See National Historic Preservation Act Amendments of 1992, Pub. L. No. 102 575, 4006(a)(2), 106 Stat. 4755 (1992). These amendments made properties of traditional religious and cultural importance to an Indian tribe eligible for inclusion on the National Register of Historic Places ( National Register ), and also required that federal agencies consult with any Indian tribe that attaches religious and cultural significance to these properties prior to any federal 7

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 13 undertaking that could result in adverse effects under the framework established by Section 106 of the NHPA. 54 U.S.C. 302706(b); 306108. The connection to the Greater Chaco Landscape serves to orient Pueblos in time and place, connecting them to their rich history, and providing a source of important cultural continuity. The significance of these sacred sites is often safeguarded through traditional, unwritten practices within Pueblo communities, and formal written recordation is often culturally inappropriate. The religious and cultural importance of the Greater Chaco Landscape can only be understood through meaningful dialogue and consultation between the Pueblos and the federal agencies who risk unintentionally disrespecting these areas through uninformed actions. ARGUMENT I. BLM DID NOT MEET NHPA REQUIREMENTS AND TRUST DUTY OBLIGATIONS FOR GOVERNMENT-TO-GOVERNMENT TRIBAL CONSULTATION PRIOR TO GRANTING APDS Under Section 106 of the NHPA, BLM was required to consult with the Pueblos on a government-to-government basis when considering granting the APDs. Only through such consultation could BLM have been informed about potential adverse effects on TCPs. The location and attributes of TCPs should have been used to correctly designate APEs for the APDs within the Greater Chaco Landscape. Only then could BLM satisfy its obligation to identify and assess 8

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 14 possible adverse effects on historic properties within the APEs, and develop a plan with the Pueblos and NM SHPO to avoid, minimize, or mitigate those effects. Section 106 of the NHPA requires government agencies to stop, look and listen before proceeding when their action will affect national historical assets. Coal. of Concerned Citizens to Make Art Smart v. Fed. Transit Admin., 843 F.3d 886 (10th Cir. 2016); see also Southern Utah Wilderness Alliance v. Burke, 981 F. Supp. 2d 1099, 1107 (D. Utah 2013). Section 106 regulations therefore require Tribal consultation at every step. These implementing regulations require federal agencies to (1) identify any interested Tribes and consulting parties, 36 C.F.R. 800.3(f)(2); (2) gather information from Tribes and others to identify potentially affected historic properties, including TCPs, and define an APE that considers direct, indirect, and cumulative effects of the undertaking, id. 800.4(a); see also 800.16(d) (defining APE); (3) determine whether the undertaking would have adverse effects on the historic characteristics of the properties, id. 800.5; and (4) consider ways to avoid, minimize or mitigate such adverse effects, id. 800.6. An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that make it eligible for listing in the National Register. Id. 800.5. 9

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 15 The regulations require federal agencies to consult with the NM SHPO, Tribes, and other interested parties. Id. 800.2. The goal of consultation is to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties. Id. 800.1(a). Properties of traditional religious and cultural importance to Indian tribes TCPs are eligible for listing on the National Register. 54 U.S.C. 302706(a). Federal agencies shall consult with any Indian tribe that attaches religious and cultural significance to a property potentially adversely affected by a federal undertaking under Section 106. Id. 302706(b) (emphasis added). Additionally, the trust duty must have a substantive bearing on federal agencies addressing statutes or regulations of general applicability in situations affecting Tribal interests. See, e.g., HRI, Inc. v. EPA, 198 F.3d 1224, 1246 (10th Cir. 2000). Under the trust duty, [t]he federal government bears a special trust obligation to protect the interests of Indian tribes, including protecting tribal property and jurisdiction, Id. at 1245 (citing Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247 (1985)), and serves as a fiduciary for the tribes, Id.; see also Cheyenne-Arapahoe v. U.S., 966 F.2d 583, 590 (10th Cir. 1992) (finding breach of fiduciary trust duty under oil and gas statutes). 10

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 16 A. The 2014 Protocol Cannot be Used to Abrogate Tribal Consultation Requirements Mandated by Section 106 and other Federal Laws. For efficient NHPA consultations, Section 106 can be satisfied, in whole or in part, by a programmatic agreement or PA. 36 C.F.R. 800.14(b). Under the NHPA, a PA is a legal contract binding the parties to its terms. See Tyler v. Cuomo, 236 F.3d 1124, 1134 (9th Cir. 2000) (holding that a Memorandum of Agreement ( MOA ) entered into by a city is a contract and that the City is bound by its terms where the city entered into the MOA to satisfy its NEPA and NHPA requirements); Mobile Oil Expl. & Producing Southeast, Inc. v. U.S., 530 U.S. 604, 607 (2000) (holding that when the United States enters into contractual relations, its rights and duties therein are governed by the law applicable to contracts between private individuals). There is a nationwide PA between BLM, the Advisory Council of Historic Preservation, and the National Conference of SHPOs. 3 In 2014, the BLM revised such an agreement with the NM SHPO. 2014 Protocol [App. at.]. The Protocol governs the manner in which the New Mexico BLM and the [NM] 3 Programmatic Agreement Among the Bureau of Land Management, the Advisory Council on Historic Preservation, and the National Conference of State Historic Preservation Officers Regarding the Manner in which the BLM Will Meet Its Responsibilities Under the National Historic Preservation Act (2012), https://www.blm.gov/sites/blm.gov/files/national%20programmatic%20agreement.pdf. 11

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 17 SHPO will interact and cooperate for all BLM undertakings across New Mexico. Id. In reaching its decision, the District Court relied on an agreement between BLM and the NM SHPO the 2014 Protocol to justify BLM s failure to adequately analyze indirect and cumulative effects. See District Court Memorandum Opinion and Amended Order, Dkt. 129 at 8-9, 50 ( Order ). While the 2014 Protocol is a binding contract between the parties to the Protocol BLM and the NM SHPO the Pueblos are not parties to the Protocol. 4 See id. at [App. at.]. Therefore Section 106 and its implementing regulations not the Protocol govern BLM s obligations to consult with the Pueblos and to use information learned in making Section 106 determinations. The Pueblos right to consultation under the NHPA stems from the statutory command that a federal agency shall consult with any Indian Tribe that attaches religious and cultural significance to a property, 54 U.S.C. 302706, and is reinforced by the federal government s trust responsibility. The 2014 Protocol does not purport to override the duties owed to the Pueblos under federal law. See 2014 Protocol, [App. at.] ( [T]his Protocol governs compliance with the NHPA 4 The Protocol asserts that BLM consulted with Tribes in developing the 2014 Protocol; this is a far cry from being a party to an agreement. See 2014 Protocol [App. at.]. The Tribes cannot be held to have waived rights granted under Section 106 merely because they were consulted in the 2014 Protocol development. 12

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 18 and in no way supersedes the BLM s other treaty, trust, and consultation responsibilities to Indian tribes under multiple other authorities. ). The 2014 Protocol itself requires extensive Tribal Consultation: The BLM shall assure that Indian tribes have the opportunity to identify historic property concerns and to participate as consulting parties in all aspects of consultation for projects that are of interest to them. [App. at.]. B. Section 106 Requires Extensive, Reasonable, Good Faith Consultation, and BLM did Not Engage in Such Consultation with the Pueblos Prior to Granting APDs. Section 106 and its implementing regulations require federal agencies to make extensive, reasonable and good faith efforts in government-to-government consultation with any Indian Tribe that attaches religious and cultural significance to a property whose characteristics may be adversely impacted by a federal undertaking. See 54 U.S.C. 302706(b)(1) (setting out tribal consultation requirements under NHPA); see also 36 C.F.R. 800.2(ii)(A) (establishing reasonable and good faith requirements). The minimal record of tribal consultation in this case fell short of the level and quality required under Section 106. Tribal consultation is required to inform both the federal agency and the NM SHPO, because these entities work together to make Section 106 determinations. In areas like the Greater Chaco Landscape, which includes TCPs known only to the Pueblos, agencies cannot identify all properties and the historical 13

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 19 characteristics potentially adversely affected by federal undertakings without Pueblo consultation. Only then can the agency, in consultation with the NM SHPO and Tribal Historic Preservation Officer ( THPO ), properly define an APE, capturing any potential direct, indirect, and cumulative adverse effects on TCPs needing further evaluation under Section 106. In identifying potentially affected properties, the federal agency must explicitly [g]ather information from Tribes about TCPs including those located off tribal lands, and provide findings to the NM SHPO to determine the site s National Register eligibility and thus warrant NHPA protection. 36 C.F.R. 800.4(a)(4). The agency shall ensure the Section 106 process provides interested Tribes a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties articulate its views on the undertaking s effects on such properties, and participate in the resolution of adverse effects. Id. 800.2(c)(2)(ii)(A). These requirements highlight that federal agencies must consult extensively with Tribes before a project approval, and any information provided by Tribes is given special consideration. Quechan Tribe, 755 F. Supp. 2d at 1109. Moreover, Tribal consultation cannot be treated as a pro forma requirement, but rather must be meaningful. Exec. Order No. 13175, 65 Fed. Reg. 67249 (Nov. 14

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 20 9, 2000) (directing federal agencies to have an accountable process to ensure meaningful and timely input by tribal officials ); Oglala Sioux Tribe v. Andrus, 603 F.2d 707, 721 (8th Cir. 1970) (meaningful opportunity must be afforded where the federal government has established an expectation through policy); see also Quechan Tribe, 755 F. Supp. 2d at 1118-19 ( pro-forma recitals are not meaningful consultation as required by Section 106). In particular, the Section 106 regulations require that agencies make a reasonable and good faith effort to identify potentially affected properties, including TCPs of Tribes. 36 C.F.R. 800.2(b)(1). Determining what constitutes a reasonable effort to identify traditional cultural properties depends in part on the likelihood that such properties may be present. Pueblo of Sandia v. U.S., 50 F.3d 856, 861 (10th Cir. 1995). Such efforts may include background research, consultation, oral history interviews, sample field investigation, and field surveys. 36 C.F.R. 800.4(b)(1). An agency makes a reasonable, good faith effort to consult when it [s]eek[s] information from Tribes likely to have knowledge of, or concerns with, historic properties in the area and identifies issues relating to the undertaking's potential effects on historic properties. Comanche Nation v. United States, No. CIV-08-849-D, 2008 WL 4426621, at *19 (W.D. Okla. Sept. 23, 2008) (citing 36 C.F.R. 800.4(a)(3)). 15

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 21 In Pueblo of Sandia this Court found that merely mailing letters requesting information and addressing meetings was not sufficient to meet the reasonable efforts requirements. 50 F.3d at 860. The Forest Service sent letters to Tribes and Tribal members requesting detailed information about TCPs. Id. While withholding cultural confidences, the Tribes responded with sufficient evidence to indicate a likelihood of NHPA protected properties within the Las Huertas Cañon. Id. at 861. This Court held that the Forest Service s actions did not amount to reasonable efforts because the agency failed to engage in further investigations, especially in light of regulations warnings that tribes might be hesitant to divulge the type of information sought. Id. at 860. In Comanche Nation, the federal Western District of Oklahoma court held that defendants violated the NHPA by relying on technical compliance with Section 106, and not seeking good faith consultation on how Tribal TCPs would potentially be adversely affected. 2008 WL 4426621 at *19. The Comanche Nation registered concerns that a proposed building project could impair viewscapes near Medicine Bluffs, a sacred site. Id. at *6-7, *19. Despite the Tribe s concerns, the agency sent out letters where details of the project were buried in technical attachments, and the consulting parties were left to ferret out for themselves the adverse impact on viewscapes then known by Defendants to exist. Id. at *18. Instead of fulfilling the NHPA requirements to stop, look, and listen, the 16

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 22 defendants merely paused, glanced, and turned a deaf ear to warnings of adverse impact. Id. at *19. Here, BLM clearly failed to engage in extensive consultations with Pueblos who all have a spiritual connection with the Greater Chaco Landscape. There is nothing in the record reflecting that BLM made reasonable, good faith efforts to provide meaningful consultation prior to the grant of the APDs. BLM is well aware that Pueblo cultures attach great religious and cultural significance to Chaco Park and the Greater Chaco Landscape: Without a doubt the pre-columbian archaeological sites of the San Juan Basin and elsewhere are culturally affiliated with several pueblos (e.g., Acoma, Zuni, Hopi) and representatives from those pueblos have made it very clear that those sites and their environment are of traditional religious and cultural importance to them. 5 Bureau of Land Management, Environmental Assessment for the October 2014 Competitive Oil and Gas Lease Sale, DOI-BLM-NM-F010-2014- 0154-EA. [App. at.] ( Oil and Gas Lease Sale EA ). 6 Further, in developing its 2003 Farmington Resource Management Plan ( 2003 RMP ), which guides all oil and gas development in the APD region, BLM contacted 20 Pueblos, demonstrating that it understood that all Pueblos had 5 The Hopi Tribe is not a member of the APCG. 6 BLM points to a previous study that attempted to identify TCPs in the area through engagement with 20 pueblos that was characterized as generally unproductive, but acknowledges that the study did not determine whether the lack of response was merely a polite way of safeguarding sensitive information. 2014 Environmental Assessment on an October 2014 Oil and Gas Lease Sale, [App at.]. 17

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 23 important ties to the region. BLM, Farmington Resource Management Plan with Record of Decision 1-16 (2003); see also Order at 14 (discussing relationship of resource management plan and leases to APDs). The record here does not reflect any meaningful engagement with Pueblos prior to the grant of the APDs. The only potential Pueblo consultation found in the record by Amici is in a file titled All Tribal Consultation that includes four letters sent to the Pueblos of Acoma, Jemez, Zia and Zuni in May 2014 requesting input on the October 14 oil and gas lease sale. 7 See Letters [App. at.] from BLM to Zuni Pueblo, May 21, 2014, [App. at.app. at BLM015939]; Letter from BLM to Zia Pueblo, May 21, 2014 [App. at.app. at BLM015941]; Letter from BLM to Jemez Pueblo, May 23, 2014, [App. at.app. at BLM015941]; Letter from BLM to Acoma Pueblo, May 23, 2014 [App. at.app. at BLM015967]. Yet the leasing of these parcels is not the undertaking at issue here. The undertaking at issue is BLM s separate action granting APDs. See, e.g., Letter from BLM to Zuni Pueblo, May 21, 2014, [App. at.] (Collectively Letters ) ( Leasing does not authorize any specific action. ); c.f. 7 The four letters also reference prior letters mailed March 17 and 19, 2014, but those letters are not included. 18

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 24 Order at 16 (APD process provides site specific analysis and approval before permitting ). Even if these letters were relevant, they would not meet the consultation requirements under Section 106. At best, the record does not demonstrate that BLM contacted the majority of the Pueblos that BLM knew had connections to the landscape. Next, there is no evidence in the record that BLM made reasonable, good faith efforts to meaningfully consult with Tribes as required by Pueblo of Sandia and Comanche Nation. BLM acknowledged in 2014 that the Greater Chaco Landscape and its environment are of traditional religious and cultural importance to at least some Pueblos. Oil and Gas Lease Sale EA [App. at.] As in Sandia, this should have been sufficient to put BLM on notice that further investigation was warranted, 50 F.3d at 860, for example by using oral history and interviews, techniques identified as appropriate in the regulations, 36 C.F.R. 800.4(b)(1). No such consultation is reflected in the record. To the extent that the four letters represent some attempt at consultation, they do not even identify that Pueblo TCPs may be affected in the text, instead they bury the fact that Chaco Canyon is nearby in an attached map. E.g., Letter from BLM to Zuni Pueblo, May 21, 2014, [App. at.] (no mention of Chaco 19

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 25 Canyon or Greater Chaco Region). This is analogous to the way federal defendants in Comanche Nation buried details about development in technical attachments. 2008 WL 4426621 at *18. Section 106 and its implementing regulations require extensive tribal consultation to inform the federal agency and NM SHPO because often only Tribes have the specialized knowledge required to identify TCPs vulnerable to adverse effects of undertakings. The federal agency must make reasonable and good faith efforts to implement meaningful consultation, and give special consideration to the information received. 36 C.F.R. 800.4(b)(1); Quechan Tribe, 755 F. Supp. 2d at 1109. A programmatic agreement to which the Pueblos were not a party cannot, and does not purport to, supersede these federal requirements. The record does not reflect anything like meaningful consultation with all of the APCG Pueblos. II. DUE TO LACK OF CONSULTATION, BLM UNLAWFULLY RELIED ON STANDARD APES THAT DID NOT TAKE INTO ACCOUNT POTENTIAL INDIRECT AND CUMULATIVE ADVERSE EFFECTS ON PUEBLO TCPS The BLM improperly defined the APEs for this undertaking. BLM relied on the 2014 Protocol, prescribing a predetermined, narrow standard APE for well sites limiting the surface area and construction zone around a proposed well pad, plus 100 feet on all sides. [App. at.]. BLM s lack of meaningful consultation with Pueblos also led to a narrow focus on potential adverse effects to 20

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 26 archaeological properties. BLM ignored historical sites of importance to the Pueblos that could be eligible for the National Register as TCPs. These TCPs have historic characteristics such as setting, feeling, or association that are more susceptible to the cumulative or indirect effects of issued APDs; BLM should have considered this in determining APEs under Section 106. The District Court erroneously upheld this action by accepting the 2014 Protocol s use of formulaic, narrowly drawn APE for these undertakings. As discussed above, the 2014 Protocol does not supersede the agency s responsibilities and the Pueblos rights to consultation under Section 106. Moreover, even under the 2014 Protocol, the narrow, standard APE did not apply. The 2014 Protocol acknowledges that for complicated or controversial undertakings, BLM will consult with the NM SHPO instead of using the standard APE [App. at.], yet no such consultation is reflected in the record.. The Pueblos deep, living relationship with the Greater Chaco Landscape means that their perspectives were and still are essential to identifying historic properties and defining a proper APE for the APDs at issue. 21

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 27 A. Tribal Consultation is Essential to Identifying Historic Properties, Understanding the Characteristics, and Properly Defining the APE under NHPA The Pueblos living connection with the Greater Chaco Landscape conveys generations of passed-down, specialized knowledge about the land. While archaeological sites where ancestors lived are important in Puebloan culture, locations such as mountain peaks, springs and cultural landscapes are equally important. These types of resources are likely eligible for the National Register as TCPs because of the Pueblos historic and ongoing connections to them. TCPs are commonly determined eligible for listing under the more expansive Criteria A, B, and C of the National Register, not solely as archaeological sites under Criterion D. Information about TCPs can only be obtained through meaningful consultation with the Pueblos. Had BLM conducted tribal consultation, TCPs that could be adversely affected would have been identified. Section 106 regulations would then have required BLM to define an APE that adequately assessed the potential adverse effects of the APDs on the setting, feeling, and association characteristics of the Pueblos TCPs. A TCP is eligible for the National Register where it is associated "with cultural practices or beliefs of a living community that (a) are rooted in that community's history, and (b) are important in maintaining the continuing cultural 22

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 28 identity of the community." U.S. Dep t of the Interior, Nat l Park Serv., Cultural Res., Nat l Register, Federal Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties 1 (1998) [ TCP Bulletin ]. A historic property must fit within one of four criteria to be eligible for the National Register. 36 C.F.R. 60.4. The four criteria are properties that: (a) are associated with events that have made a significant contribution to the broad patterns of our history; or (b) are associated with the lives of persons significant in our past; or (c) embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values; or (d) have yielded, or may be likely to yield, information important in prehistory or history. Id. An eligible property must exhibit historical significance through aspects relevant to the criterion it is eligible under. U.S. Dep t of the Interior, Nat l Park Serv., Cultural Res., Nat l Register, Federal Register Bulletin 15, How to Apply The National Criteria For Evaluation 44 (1990) ( Criteria Bulletin ). These aspects include location, design, setting, materials, workmanship, feeling, and association. Id. Adverse effects to an eligible property exist when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. 36 C.F.R. 800.5(a)(1). 23

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 29 A property eligible under one criterion may therefore be susceptible to very different adverse effects under the NHPA than a property eligible under a different criterion. For example, Tribal TCPs may be eligible because they are associated with events that have made a significant contribution to the broad patterns of Tribal history criterion (a) or because they are associated with the lives of persons significant in the Tribe s past criterion (b). See TCP Bulletin at 12-13. Under these criteria, a TCP s setting, defined as the character of the place in which the property played its historical role could be important to maintaining its integrity. See Criteria Bulletin at 45, 48. The feeling of a TCP, defined as a property's expression of the aesthetic or historic sense of a particular period of time, can also be significant to its integrity. Id. A TCP s association, defined as the direct link between an important historic event or person and a historic property can also be an aspect of its integrity. Id. In the Greater Chaco Landscape, setting, feeling, and association are likely to be significant characteristics of a TCP that render them eligible for listing in the National Register. This reflects the value of viewscape, air quality, quietude, and continued connections to ancestral lifeways to the Pueblos and other Tribes. In contrast, a property determined eligible solely because of its archaeological value under Criterion D is assessed based upon the property's potential to yield specific data that addresses important research questions. 24

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 30 Criteria Bulletin at 46, 49. [S]etting and feeling may not have direct bearing on the property's ability to yield important information. Id. at 49. But plainly, changes to setting, feeling, and association are not considered to cause adverse effects to properties that are determined eligible solely under Criterion D. This is because these resources are eligible solely for the data that they may provide. Considerations of indirect and cumulative effects to viewscape, air quality, or quietude on Criterion D resources are thus not regularly considered. The contrast between the required assessment of adverse effects for properties determined eligible for the National Register solely under Criterion D versus Criteria A, B, and C underscores why Tribal consultation is essential to correctly defining the APE. Had BLM consulted with the Pueblos, it would have gathered information about TCPs potentially eligible under Criteria A, B, or C that were significant because of their setting, feeling, and association. Adverse effects on historic properties include [i]ntroduction of visual, atmospheric or audible elements that diminish the integrity of the property s significant historic features. 36 C.F.R. 800.5(a)(2)(v). BLM would then have been required to define the APE necessary to assess any indirect or cumulative adverse effects to these characteristics. Comanche Nation highlights the importance of Tribal information in assessing indirect and cumulative effects of federal undertakings. 2008 WL 25

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 31 4426621, at *6-9. The Comanche Nation believed certain unobstructed views of the bluffs as central to a spiritual experience. Id at *7. Even though the Comanche Nation resisted disclosure of specific sites, the court recognized that the general area was considered sacred by the Comanche people. Id. The court stated that the defendants blatantly ignored the Tribe s concerns regarding indirect effects, such as obstruction of bluff views, during consultation. See id. at *18. Furthermore, the court found that the defendants failed to apprise the Tribe of the cumulative effect of proposed future projects. Id. at *19. The court ruled that NHPA required the defendant to consider indirect effects to the bluffs. See id. Meaningful consultation with Tribes is essential to defining the APE to include potential impacts to TCPs. Only through Tribal consultation can an agency identify these properties and understand their significance and eligibility for the National Register, and therefore be able to assess how any relevant property qualities may be altered by the federal undertaking. Consultation must include reasonable, good faith efforts recognizing that Pueblo members often transmit knowledge about sacred spaces through oral and symbolic cultural traditions. Here, BLM used a standard APE identified in the 2014 Protocol and analyzed only direct and indirect effects on known archaeological sites. Order at 121. Because BLM did not engage in required consultation with the Pueblos, BLM could not and did not gather information about potentially eligible TCPs that could 26

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 32 be adversely affected by the APDs. Had BLM engaged in required consultation, BLM likely could have gathered information about TCPs potentially eligible under Criteria A, B, or C, whose historic significance relies on the integrity of the setting, feeling and association of these properties. BLM would have then been required to define the APE to include cumulative and indirect effects that could adversely affect these characteristics. BLM s failure to consult with the Tribes and its reliance on the 2014 Protocol to establish narrow, standard APE in this case, violated the NHPA. B. Even If The 2014 Protocol Governed The APE Determination, Tribal Consultation Was Still Required In Drawing The APE. Assuming arguendo that the 2014 Protocol governed the APE under Section 106, meaningful tribal consultation would still be required under the protocol. See [App. at.]. The 2014 Protocol states that: [i]n defining the APE the BLM will consider potential direct indirect and cumulative effects to historic properties and their associated settings when setting is an important aspect of integrity as applicable. The introduction of physical, visual, audible or atmospheric elements has the potential to affect the historic setting or use of historic properties including but not limited to properties of religious and cultural significance to Indian tribes, and the BLM will take this into account in defining the limits of an APE for indirect effects. [App. at.]. 27

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 33 Notwithstanding this clear language, BLM failed to gather information from the Pueblos or consult with the NM SHPO in setting the APE. Instead, BLM relied on the narrow, standard APE in the 2014 Protocol appendix for well sites. Order at 113. The District Court erroneously found this permissible because it ignored the Protocol s provision creating an exemption. The 2014 Protocol allows BLM to use standard APEs unless special circumstances warrant NM SHPO consultation. [App. at.]. One circumstances is where defining the APE is complicated or controversial. [Id.]. The 2014 Protocol explicitly provides an example of complicated or controversial undertakings involving multiple Indian tribes. [Id.]. Here, multiple Tribes, including the twenty Pueblos, would be affected by these undertakings. The record shows that BLM engaged four Pueblos, in addition to other non-pueblo Tribes prior to leasing the oil and gas rights to the related parcels. See Letters [App. at,,,.]. By the 2014 Protocol s language, this undertaking was complicated or controversial, requiring BLM to consult the NM SHPO to determine the APE for indirect effects. Further, the 2014 Protocol states that [t]he regulations at 36 CFR 800.3 through 800.7, 800.8(c), and 800.14 will be followed in lieu of this Protocol when the undertakings are determined by the BLM or NM SHPO to be subject to 28

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 34 unusual public attention or involve strongly opposing viewpoints. [App. at.]. Oil and gas development within the Greater Chaco Landscape with likely indirect and cumulative adverse effects on Tribal TCPs has been subject to substantial public attention and certainly involves strongly opposing viewpoints. The Pueblos feel strongly that, at a minimum, meaningful tribal consultation was required, and is conspicuously absent from the record. Here, BLM violated the 2014 Protocol when it failed to consult with the NM SHPO in a complicated and controversial undertaking to determine the APE and when it failed to consult with the Pueblos to identify potentially affected significant cultural and religious properties in defining the APE. CONCLUSION BLM s granting of the APDs without tribal consultation, and without NM SHPO consultation on tribal issues, was arbitrary and capricious, an abuse of discretion, and not in accordance with law. See 5 U.S.C. 706(2)(A). Section 106 and its implementing regulations create clear, extensive requirements for meaningful, good-faith tribal consultation, reinforced by the federal trust duty. The record barely reflects any communication with Pueblos, much less the extensive, good-faith consultation required with all affected Tribes. 29

Appellate Case: 18-2089 Document: 010110049176 Date Filed: 09/07/2018 Page: 35 The Section 106 implementing regulations make clear that an APE must be defined so as to consider potential adverse indirect and cumulative effects on Tribal TCPs that are potentially eligible for the National Register. Information required for defining the APE may only be acquired by meaningful consultation. In this case the APE for each APD could not be defined appropriately without gathering information from all affected Tribes, including the Pueblos. The 2014 Protocol cannot be used to undermine these Tribal statutory rights to participate in and inform, through meaningful consultation, the Section 106 process. Even if this Court finds that the 2014 Protocol should govern the Section 106 process, the terms of the 2014 Protocol itself required Tribal and NM SHPO consultation to define the APE, especially for consideration of indirect and cumulative effects. BLM s approval of the APDs was therefore arbitrary and capricious. Amici urge this Court to remand with a requirement that the Pueblos and all affected Tribes are meaningfully consulted. Respectfully submitted, Counsel for Amici Curiae By: /s/ Jeanette Wolfley Jeanette Wolfley, Esq. Natural Resources and Environmental Law Clinic 30