Narragansett Indian Tribe v. Rhode Island Department of Transportation et al
MEMORANDUM AND ORDER granting 18 Motion to Dismiss for Lack of Jurisdiction; granting 19 Motion to Dismiss for Failure to State a Claim- So Ordered by Chief Judge William E. Smith on 9/11/2017. (Barletta, Barbara)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
NARRAGANSETT INDIAN TRIBE, acting )
by and through the NARRAGANSETT
INDIAN TRIBAL HISTORIC
C.A. No. 17-125 WES
RHODE ISLAND DEPARTMENT OF
TRANSPORTATION; FEDERAL HIGHWAY
ADMINISTRATION; ADVISORY COUNCIL
ON HISTORIC PRESERVATION; RHODE
ISLAND HISTORICAL PRESERVATION &
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court are two Motions To Dismiss: the first motion
Preservation (“ACHP”) (collectively, “Federal Defendants”), and
the second motion (ECF No. 19) filed by the State of Rhode Island
(collectively, “State Defendants”).
In response to both Motions,
Plaintiff the Narragansett Indian Tribe (“Tribe”), by and through
the Narragansett Indian Tribal Historical Preservation Office
consideration, both Motions To Dismiss are hereby GRANTED for the
reasons that follow.
This case stems from a dispute over an extensive highway
Project, 1 and its prospective impact on historically significant
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
The PA included various stipulations
concerning the transfer of land, which the parties later amended,
in certain respects, on January 17, 2013.
(Id. ¶ 11.)
A project of this sort is referred to as an “Undertaking”
in the relevant federal regulations.
The Court adopts this
The NHPA was previously codified at 16 U.S.C. § 470 et seq.
amended 3 stipulation
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.)
(collectively, “Tribal Historical Properties”), located within the
“Providence Covelands Archaeological District (RI 935)” included
“Providence Boys Club – Camp Davis,” and the “Chief Sachem Night
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
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
The relevant amended stipulation, Stipulation No. 3, struck
in its entirety and replaced the original Stipulation No. 3 in the
(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-
Additionally, attempts at resolution by the parties were not
(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
(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
(Id. at 3.)
On March 31, 2017, Plaintiff initiated the instant lawsuit
against Federal and State Defendants asserting breach-of-contract
The Court notes that it is unclear whether RIDOT’s condition
applied solely to the Providence Boys Club property or if it
encompassed each of the Tribal Historical Properties. The letter
only mentions the Providence Boys Club; however, Plaintiff’s
Complaint speaks of this condition with respect to each of the
Tribal Historical Properties discussed in the Amendment to the PA,
which this Court will accept as true for purposes of this motion.
(Compl. ¶ 12.)
claims and seeking declaratory and injunctive relief.
These motions followed.
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
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
Menge v. N. Am. Specialty Ins. Co., 905 F. Supp. 2d 414,
416 (D.R.I. 2012).
Id.; see also Murphy v. United States, 45 F.3d 520, 522 (1st
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)).
Twombly, 550 U.S. at 555 (internal citations omitted).
A. Statutory Background
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
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
See Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of
Interior, 608 F.3d 592, 609 (9th Cir. 2010).
54 U.S.C. § 306108 (“section 106”). Additionally, section
106 contemplates that the federal agency head shall allow the ACHP
“a reasonable opportunity to comment with regard to the
Id.; see also 36 C.F.R. § 800.6(e), (g).
complete text of section 106 provides:
The head of any Federal agency having
direct or indirect jurisdiction over a
undertaking in any State and the head of any
Federal department or independent agency
having authority to license any undertaking,
prior to the approval of the expenditure of
any Federal funds on the undertaking or prior
to the issuance of any license, shall take
into account the effect of the undertaking on
any historic property. The head of the Federal
agency shall afford the Council a reasonable
opportunity to comment with regard to the
54 U.S.C. § 306108.
Congress created the ACHP to oversee the implementation of
section 106, and the ACHP has disseminated regulations to this
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
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
implementation of a particular program or the resolution of adverse
See 54 U.S.C. §§ 304101, 304108; 36 C.F.R. § 800.
36 C.F.R. § 800.1.
Id. § 800.1(a).
Id. § 800.14(b).
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:
no waiver of sovereign immunity.
there has been
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
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
It is indeed ironic that at the heart of this dispute is
Plaintiff’s refusal to waive its own sovereign immunity (Compl. ¶
16-18), and the absence of any express waiver of sovereign immunity
by Federal Defendants ultimately defeats Plaintiff’s claim.
See Limar Shipping Ltd. v. United States, 324 F.3d 1, 6
(1st Cir. 2003); see also FAA v. Cooper, 566 U.S. 284, 290 (2012);
Puerto Rico v. United States, 490 F.3d 50, 57 (1st Cir. 2007) (“It
is long settled law that, as an attribute of sovereign immunity,
the United States and its agencies may not be subject to judicial
proceedings unless there has been an express waiver of that
immunity.”) (quoting EPA v. Gen. Elec. Co., 197 F.3d 592, 597 (2d
Cooper, 566 U.S. at 290 (quoting Lane v. Pena, 518 U.S.
187, 192 (1996)).
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
Although the APA explicitly provides for a waiver of
sovereign immunity, it only permits “judicial review of the final
administrative law jurisprudence, “‘a final agency action’ is one
that ‘mark[s] the consummation of the agency’s decisionmaking
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
See San Carlos Apache Tribe v. United States, 417 F.3d
1091, 1096 (9th Cir. 2005) (“NHPA offers no basis to infer a waiver
of sovereign immunity.”); see also Muirhead v. Mecham, 427 F.3d
14, 17 n.1 (1st Cir. 2005) (“[T]he Declaratory Judgment Act, 28
U.S.C. § 2201 . . . plainly does not operate as an express waiver
of sovereign immunity.”).
Baillargeon v. Drug Enf’t Admin., 638 F. Supp. 2d 235, 242
(D.R.I. 2009); see also Franklin v. Massachusetts, 505 U.S. 788,
796 (1992) (“The APA provides for judicial review of ‘final agency
action for which there is no other adequate remedy in a court.”)
(quoting 5 U.S.C. § 704).
Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38,
46 (1st Cir. 2009) (quoting Whitman v. Am. Trucking Ass’ns, 531
U.S. 457, 478 (2001)).
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.
Dismiss, ECF No. 19 at 1.)
(State Defendants’ Mot. To
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 terms
demonstrated a clear entitlement to injunctive relief.
This Court need not delve into the merits of State Defendants’
jurisdictional roadblock. 23
Plaintiff’s claims pursuant to the
Indeed, Plaintiff’s claim against Federal Defendants is
deficient for the additional reason that Plaintiff “did not plead
an APA claim in a separate count or as a cause of action, but only
asserted jurisdiction under the APA.” Town of Portsmouth v. Lewis,
813 F.3d 54, 63 (1st Cir. 2016).
I briefly pause to acknowledge that State Defendants moved
to dismiss Plaintiff’s claim for failure to state a claim based on
Rule 12(b)(6) of the Federal Rules of Civil Procedure. Despite
not moving under 12(b)(1) for lack of subject matter jurisdiction,
Declaratory Judgment Act must fail because “[t]he Declaratory
Judgment Act does not in itself confer subject matter jurisdiction;
In other words, to survive a motion to dismiss,
jurisdiction on some other basis.” 25
jurisdiction, that is, the federal questions from which this
dispute emanates, are the APA and the NHPA.
with respect to the APA is easily disposed of, however, because
“the APA only provides for review of federal agency action . . .
. It does not provide a right of action against a state agency.” 26
This obviates Plaintiff’s reliance on the APA as a jurisdictional
I begin addressing jurisdictional hurdles Plaintiff faces because
“[w]hen a requirement goes to subject-matter jurisdiction, courts
are obligated to consider sua sponte issues that the parties have
disclaimed or have not presented . . . . Subject matter
jurisdiction can never be waived or forfeited.”
Thaler, 565 U.S. 134, 141 (2012).
Ernst & Young v. Depositors Econ. Prot. Corp., 862 F. Supp.
709, 713 (D.R.I. 1994) aff’d, 45 F.3d 530 (1st Cir. 1995); see
also Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 67172 (1950) (explaining that although the Declaratory Judgment Act
expanded “the range of remedies” one may seek in federal court, it
did not enlarge federal courts’ jurisdiction).
Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530,
534 (1st Cir. 1995).
Town of Portsmouth, 813 F.3d at 64.
hook in asserting claims against RIDOT and RIHPHC — both stateagency defendants.
Knocking out Plaintiff’s reliance on the APA, the Court must
still consider whether Plaintiff could be entitled to relief
pursuant to the NHPA. 27
As an initial matter, the Court notes that
the crucial inquiry in this respect, i.e., whether Section 106 of
the NHPA confers a private right of action, is one that the First
Circuit Court of Appeals has not yet answered. 28
this Court is ultimately persuaded by the reasoning of courts that
have answered this question in the negative. 29
In Karst Environmental Education and Protection, Inc. v. EPA,
475 F.3d 1291, 1295 (D.C. Cir. 2007), and San Carlos Apache Tribe
v. United States, 417 F.3d 1091, 1099 (9th Cir. 2005), the D.C.
Circuit Court of Appeals and the Ninth Circuit Court of Appeals
held that Section 106 of the NHPA confers no private right of
I note that, despite some murkiness in the law as to whether
dismissal based on the absence of a private right of action should
be for failure to state a claim or lack of jurisdiction, I am
confident that such a claim is properly disposed of by way of a
Rule 12(b)(6) motion.
See Arroyo-Torres v. Ponce Fed. Bank,
F.B.S., 918 F.2d 276, 280 (1st Cir. 1990).
See, e.g., Narragansett Indian Tribe v. Warwick Sewer
Auth., 334 F.3d 161, 166 n.4 (1st Cir. 2003) (assuming, without
deciding, that NHPA bestows private right of action).
See, e.g., Karst Envtl. Educ. and Prot., Inc. v. EPA, 475
F.3d 1291, 1295 (D.C. Cir. 2007); San Carlos Apache Tribe v. United
States, 417 F.3d 1091, 1099 (9th Cir. 2005); Friends of Hamilton
Grange v. Salazar, No. 08 Civ. 5220, 2009 WL 650262, at *20
Central to the Ninth Circuit’s holding in San Carlos
Apache Tribe was its reliance on the United States Supreme Court’s
decision in Alexander v. Sandoval, 532 U.S. 275 (2001), in which
the Court held that § 602 of Title VI of the Civil Rights Act of
1964 did not confer a private right of action.
Sandoval, the Supreme Court declared that, “[s]tatutes that focus
on the person regulated rather than the individuals protected
particular class of persons.’” 30
In gleaning no congressional
intent to create a private right of action with respect to § 602
of Title VI of the Civil Rights Act, the Court added:
602 is yet a step further removed: It focuses neither on the
individuals protected nor even on the funding recipients being
regulated, but on the agencies that will do the regulating.” 31
Ninth Circuit in San Carlos Apache Tribe relied on this very
distinction and held that, like § 602 of Title VI of the Civil
Rights Act, “[t]he thrust of § 106 is not directed to individuals
dictates, but rather, . . . to the persons regulated.” 32
532 U.S. at 289 (quoting California v. Sierra Club, 451
U.S. 287, 294 (1981)).
Id. (emphasis added).
San Carlos Apache Tribe, 417 F.3d at 1095.
bolster its conclusion that the NHPA does not confer a private
right of action, the Ninth Circuit analogized the NHPA to its
The Court is satisfied, then, that § 106 of the NHPA does not
confer a private right of action. 33
Therefore, because the NHPA
does not provide a private right of action and thus Plaintiff
Plaintiff’s additional arguments. Plaintiff fails to state a claim
upon which relief can be granted such that State Defendants’ Motion
To Dismiss is hereby GRANTED.
“close statutory analog,” the National Environmental Policy Act
(“NEPA”), 42 U.S.C. §§ 4321-4370. Id. at 1097-98. Distilled to
its essence, the Ninth Circuit emphasized that like NEPA, NHPA’s
“stop, look, and listen” obligation is imposed upon government
agencies, rather than private persons, which militates against
implying a private right of action.
Notably, the First
Circuit Court of Appeals recently reaffirmed its express holding
that “NEPA provides no right of action at all.”
Portsmouth, 813 F.3d at 62.
This Court acknowledges that certain courts have disagreed
with this conclusion, having found that the NHPA confers a private
right of action. See, e.g., Boarhead Corp. v. Erickson, 923 F.2d
1011, 1017 (3rd Cir. 1991); Vieux Carre Prop. Owners, Residents &
Assocs. v. Brown, 875 F.2d 453, 458 (5th Cir. 1989).
decisions came before the Supreme Court’s guidance in Sandoval,
which casts a shadow over them. Indeed, more recently the Fifth
Circuit Court of Appeals, while noting it was bound by its prior
decision, acknowledged that, “the Supreme Court’s recent
jurisprudence casts serious doubt on the continued viability of
the private right of action under the NHPA.” Friends of St. Xavier
Cabrini Church v. FEMA, 658 F.3d 460, 466 n.2 (5th Cir. 2011).
Accordingly, Federal Defendants’ Motion To Dismiss (ECF No.
18) and State Defendants’ Motion To Dismiss (ECF No. 19) are hereby
IT IS SO ORDERED.
William E. Smith
Date: September 11, 2017
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