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Narragansett Indian Tribe v. Rhode Island Department of Transportation

United States District Court, D. Rhode Island

September 11, 2017

NARRAGANSETT INDIAN TRIBE, acting by and through the NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION OFFICE, Plaintiff,
v.
RHODE ISLAND DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; ADVISORY COUNCIL ON HISTORIC PRESERVATION; RHODE ISLAND HISTORICAL PRESERVATION & HERITAGE COMMISSION, Defendants.

          MEMORANDUM AND ORDER

          WILLIAM E. SMITH, Chief Judge.

         Before the Court are two Motions To Dismiss: the first motion (ECF No. 18), filed by Defendants the Federal Highway Administration (“FHWA”) and the Advisory Council on Historic Preservation (“ACHP”) (collectively, “Federal Defendants”), and the second motion (ECF No. 19) filed by the State of Rhode Island Department of Transportation (“RIDOT”) and the Rhode Island Historical Preservation and Heritage Commission (“RIHPHC”) (collectively, “State Defendants”). In response to both Motions, Plaintiff the Narragansett Indian Tribe (“Tribe”), by and through the Narragansett Indian Tribal Historical Preservation Office (“NITHPO”) filed an objection (ECF No. 23). After careful consideration, both Motions To Dismiss are hereby GRANTED for the reasons that follow.

          I. Background

         This case stems from a dispute over an extensive highway project, the Providence Viaduct Bridge No. 578 Replacement Project, [1] and its prospective impact on historically significant land. In relation to the Undertaking, a Programmatic Agreement (“PA”) was executed between Plaintiff, RIDOT, FHWA, and the Rhode Island State Historic Preservation Officer (“RISHPO”) pursuant to Section 106 of the National Historic Preservation Act of 1966, 54 U.S.C. §§ 300101 et seq. (“NHPA”).[2] (Compl. ¶ 10, ECF No. 1.) Effective October 3, 2011, the PA was instituted to govern the Undertaking, primarily to address any impact that it might have on historic land. (Id.) The PA included various stipulations concerning the transfer of land, which the parties later amended, in certain respects, on January 17, 2013. (Id. ¶ 11.)

         Importantly, one such amended[3] stipulation provided that RIDOT must acquire and transfer ownership in various historic properties to the State of Rhode Island jointly with NITHPO “for and on behalf of” the Tribe. (Compl., Ex. B at 2-3.) These “significant Narragansett Indian Tribal cultural” properties (collectively, “Tribal Historical Properties”), located within the “Providence Covelands Archaeological District (RI 935)” included the Salt Pond Archaeological Preserve in Narragansett, the “Providence Boys Club - Camp Davis, ” and the “Chief Sachem Night Hawk property (a.k.a. Philip Peckham property), ” both in Charlestown. (Id.) Included in each stipulation was assurance that “[a]ppropriate covenants that preserve the property and its cultural resources in perpetuity shall be included in the deed for said property.” (Id.)

         Although RIDOT acquired all of the Tribal Historical Properties, on September 16, 2013, it informed NITHPO via letter that it would not transfer the Providence Boys Club - Camp Davis property unless and until the Tribe waived its sovereign immunity with respect to the deed covenants and consented to subject the property to Rhode Island's jurisdiction, and civil and criminal laws.[4] (Compl., Ex. C at 2-3.) Plaintiff, however, refused to agree to RIDOT's proposed conditions, citing the absence of such conditions in both the PA and amendments thereto. (Compl. ¶ 16-17.) Additionally, attempts at resolution by the parties were not successful. (Id. ¶ 18-20.) On February 15, 2017, FHWA and/or RIDOT sought to terminate the PA. (Id. ¶ 21; Compl., Ex. D at 2.) On March 3, 2017, the ACHP advised Plaintiff via letter that because the parties had reached an impasse in resolving any “adverse effects to historic properties, ” the ACHP was required to issue advisory comments to the Secretary of Transportation. (Compl., Ex. D at 2.) The ACHP further acknowledged in the letter that “[b]oth the FHWA and the ACHP concluded that the requirement by RIDOT that the tribe waive its sovereign immunity in order to receive this land was not a requirement of the PA; however, efforts to urge the state to reconsider that condition have been unsuccessful.” (Id. at 3.)

         On March 31, 2017, Plaintiff initiated the instant lawsuit against Federal and State Defendants asserting breach-of-contract claims and seeking declaratory and injunctive relief. (Compl. ¶¶ 26-36.) These motions followed.

         II. Legal Standard

          When construing a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, courts apply a similar standard to the standard for Rule 12(b)(6).[5] In this context, the onus is on Plaintiff to establish that jurisdiction exists.[6]

         To withstand a motion to dismiss under Rule 12(b)(6), a complaint must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”[7]“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”[8]

         III. Discussion

         A. Statutory Background

          The NHPA, 54 U.S.C. §§ 300101-320303, assigns federal agencies procedural responsibilities to contemplate the impact that its projects (i.e., projects federal agencies fund, license, or carry out) have on historic properties. At the core of the NHPA is the goal of ensuring that historical resources are preserved.[9] In relevant part, the NHPA provides that, “prior to the approval of the expenditure of any Federal funds on the undertaking . . ., [a federal agency] shall take into account the effect of the undertaking on any historic property.”[10]

         Congress created the ACHP to oversee the implementation of section 106, and the ACHP has disseminated regulations to this end.[11] Chief among these regulations is the explanation of the “section 106 process” and its purpose.[12] The regulations explain that beginning at the early stages of project planning, section 106 strives “to accommodate historic preservation concerns with the needs of Federal undertakings through consultation among the agency official” and other interested parties.[13] The primary objective of this 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.”[14] Moreover, the regulations permit the ACHP to “negotiate a programmatic agreement to govern the implementation of a particular program or the resolution of adverse effects from certain complex project situations or multiple undertakings.”[15]

         B. Federal Defendants' Motion To Dismiss (12(b)(1))

         Despite the apparent intricacy at play between the NHPA and its corresponding regulations, Plaintiff's claims directed at Federal Defendants must fail for a simpler reason: there has been no waiver of sovereign immunity. When considering, as here, a suit brought against the United States or its agencies, the first step must be to consider whether sovereign immunity has been waived[16] because “[a]bsent express waiver of sovereign immunity, federal courts lack subject matter jurisdiction over suits against the United States.”[17] For the federal government to consent to suit, “waiver of sovereign immunity must be ‘unequivocally expressed' in statutory text.”[18] In this instance, however, no such unequivocal expression of a waiver is present in the NHPA or the Declaratory Judgment Act, and therefore, a right of action can only exist under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (“APA”).[19]

         Yet it seems Plaintiff's citation to the APA is similarly unavailing. Although the APA explicitly provides for a waiver of sovereign immunity, it only permits “judicial review of the final actions taken by federal agencies.”[20] Under well-established administrative law jurisprudence, “‘a final agency action' is one that ‘mark[s] the consummation of the agency's decisionmaking process.'”[21] Here, Plaintiff's claims for declaratory judgment, injunctive relief, and breach of contract, are generally premised on RIDOT's refusal to transfer the Tribal Historic Properties' title to Plaintiff. Indeed, it appears that the only allegation Plaintiff directs at Federal Defendants is that, “FHWA has in its possession or controls funds allocated to fulfill its agreements under the PA.” (Compl. ¶ 25.) Notably, Plaintiff's Complaint is devoid of any assertion that Federal Defendants' final agency action caused Plaintiff harm.[22] Accordingly, Federal Defendants' Motion To Dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure is GRANTED.

         C. State Defendants' Motion To Dismiss

         State Defendants move to dismiss for failure to state a claim upon which relief can be granted based on Rule 12(b)(6) of the Federal Rules of Civil Procedure. (State Defendants' Mot. To Dismiss, ECF No. 19 at 1.) In support of its motion, State Defendants suggest that each of Plaintiff's claims outlined in its Complaint should be dismissed because: (1) a private right of action is not provided by the NHPA; (2) the PA's express ...


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