Download This PaperA Statute Without Teeth: Is a Private Right of Action in the National Historic Preservation Act Necessary for Meaningful Cultural Resource Protection?
19 Pages Posted: 28 May 2019 Last revised: 7 Apr 2020
Date Written: January 1, 2019
Abstract
The National Historic Preservation Act (NHPA) is the foundation of federal historic preservation. However, the viability of the NHPA as a vehicle for the enforcement of cultural resource preservation was significantly curtailed by the 9th Circuit’s holding in San Carlos Apache Tribe v. United States. In San Carlos, the 9th Circuit split from the 3rd and 5th Circuits and determined that the NHPA did not provide a private right of action.
This article provides a historical overview of the NHPA and juxtaposes its construction to that of other prominent environmental and cultural resources laws. Further, it examines the relevant Supreme Court jurisprudence used in determining the existence, either explicit or implied, of a private right of action in federal statutes. Finally, in light of San Carlos, it considers the value of a private right of action to effectuate the purpose of the NHPA.
Keywords: National Historic Preservation Act, NHPA, circuit split, cultural resource preservation, CRM, NEPA, private right of action
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