NARRAGANSETT INDIAN TRIBE, acting by and through the Narragansett Indian Tribal Historic Preservation Office, Plaintiff, Appellant,
RHODE ISLAND DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; ADVISORY COUNCIL ON HISTORIC PRESERVATION; RHODE ISLAND HISTORICAL PRESERVATION AND HERITAGE COMMISSION, Defendants, Appellees.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND [Hon. William E. Smith, Chief U.S. District
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
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.
Torruella, Kayatta, and Barron, Circuit Judges.
KAYATTA, CIRCUIT JUDGE
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.
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).
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. 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.
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).
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.
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. ...