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Narragansett Indian Tribe v. Rhode Island Department of Transportation

United States Court of Appeals, First Circuit

August 30, 2018

NARRAGANSETT INDIAN TRIBE, acting by and through the Narragansett Indian Tribal Historic Preservation Office, Plaintiff, Appellant,
v.
RHODE ISLAND DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; ADVISORY COUNCIL ON HISTORIC PRESERVATION; RHODE ISLAND HISTORICAL PRESERVATION AND HERITAGE COMMISSION, Defendants, Appellees.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. William E. Smith, Chief U.S. District Judge]

          William P. Devereaux, with whom Pannone Lopes Devereaux & O'Gara LLC was on brief, for appellant.

          Mariana E. Ormonde, Special Assistant Attorney General, with whom Peter F. Kilmartin, Attorney General, and Neil F.X. Kelly, Assistant Attorney General, were on brief, for Rhode Island appellees.

          Michael T. Gray, Attorney, Appellate Section, Environment and Natural Resources Division, United States Department of Justice, with whom Jeffrey H. Wood, Acting Assistant Attorney General, and Eric Grant, Deputy Assistant Attorney General, were on brief, for federal appellees.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          KAYATTA, CIRCUIT JUDGE

         The Narragansett Indian Tribe (the "Tribe") appeals the district court's dismissal of its complaint against a handful of federal and Rhode Island agencies concerning a highway bridge reconstruction over historic tribal land. At base, the Tribe contends that the state of Rhode Island broke a promise made to the Tribe. Because this is not the type of claim federal courts may adjudicate, we affirm the district court's dismissal of the complaint.

         I.

         We take the facts as described by the Tribe in its complaint. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 5 (1st Cir. 2011). The Tribe's grievance stems from an agreement reached between the Tribe and state and federal agencies under the auspices of the National Historic Preservation Act, 54 U.S.C. § 300101 et seq. (the "NHPA" or the "Act"). The NHPA requires federal agencies overseeing major projects that involve the expenditure of federal funds to "take into account the effect of" that project on historic properties, including some tribal lands. 54 U.S.C. § 306108; see also Narragansett Indian Tribe v. Warwick Sewer Auth., 334 F.3d 161, 166 (1st Cir. 2003). One way a federal agency can meet its NHPA obligations is by following the so-called "section 106" process, which requires federal agencies to consult with key stakeholders in what we have described as a "stop, look, and listen" process. Warwick Sewer Auth., 334 F.3d at 166; see 36 C.F.R. §§ 800.3-800.13. Alternatively, it can develop and implement a programmatic agreement between the agency and the affected parties spelling out how the parties will address the expected adverse effects of the project. See 36 C.F.R. § 800.14(b).

         In this case, the Tribe foresaw that a proposed I-95 bridge replacement project in Providence, Rhode Island, overseen by the Federal Highway Administration, would adversely affect the Providence Covelands Archaeological District, a historic property under the NHPA and a site of importance to the Tribe. The Tribe, the Federal Highway Administration, the Rhode Island Department of Transportation ("RIDOT"), and two historic preservation agencies (the federal Advisory Council on Historic Preservation and the Rhode Island Historical Preservation and Heritage Commission) reached an agreement signed by all parties in 2011 and amended in 2013.[1] As mitigation for the expected negative impact of the bridge renovation on the Providence Covelands Archaeological District, RIDOT agreed to give the Tribe three parcels of land.

         When it later came time to transfer the parcels to the Tribe, the state insisted that the Tribe waive any claim of sovereign immunity on those lands and agree that Rhode Island civil and criminal laws apply. The Tribe refused. After unsuccessful efforts to resolve the dispute in accordance with the terms of the agreement, the Federal Highway Administration and RIDOT terminated the agreement in its entirety. This left the Federal Highway Administration to follow the standard NHPA process to meet its statutory obligation. See 36 C.F.R. § 800.3-800.13 (requiring, e.g., identification of historic properties, assessment of adverse effects, and consultation with designated parties).

         The Tribe subsequently filed suit in federal district court alleging breach of contract (count III) and seeking declaratory and injunctive relief (counts I and II, respectively). The Tribe sought both a declaration that the agreement remains in effect and a court order directing RIDOT to transfer the properties to the Tribe in accordance with the Tribe's interpretation of the agreement.

         The district court granted the various defendants' motions to dismiss the case. As to the federal defendants, the district court concluded that none of the three statutes identified in the complaint -- the Declaratory Judgment Act, 28 U.S.C. § 2201, the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"), and the NHPA -- waived the federal government's sovereign immunity to the Tribe's claims. Narragansett Indian Tribe v. R.I. Dep't of Transp., No. 17-125 WES, 2017 WL 4011149, at *3 (D.R.I. Sept. 11, 2017). That ruling left the question of whether the district court also lacked subject matter jurisdiction to hear the claims involving the state defendants. Reasoning that the APA provides no cause of action against state agencies and that the Declaratory Judgment Act does not itself confer federal subject matter jurisdiction, the district court proceeded to assess whether the NHPA provides a federal cause of action against the state defendants. Id. at *4. Recognizing a lack of circuit precedent on the question and relying on guidance from the United States Supreme Court that "[s]tatutes that focus on the person regulated rather than the individuals protected create 'no implication of an intent to confer rights on a particular class of persons, '" Alexander v. Sandoval, 532 U.S. 275, 289 (2001) (quoting California v. ...


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