Narragansett Indian Tribe v. Rhode Island Department of Transportation et al

Filing 28

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
)
PRESERVATION OFFICE,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 17-125 WES
)
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),

Administration

filed

by

(“FHWA”)

and

Defendants
the

the

Advisory

Federal

Council

on

Highway
Historic

Preservation (“ACHP”) (collectively, “Federal Defendants”), and
the second motion (ECF No. 19) filed by the State of Rhode Island
Department
Historical

of

Transportation

Preservation

and

(“RIDOT”)
Heritage

(collectively, “State Defendants”).

and

the

Rhode

Commission

Island

(“RIHPHC”)

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.)

1

A project of this sort is referred to as an “Undertaking”
in the relevant federal regulations.
The Court adopts this
terminology here.
2

The NHPA was previously codified at 16 U.S.C. § 470 et seq.
2

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.
“significant

Narragansett

(Compl., Ex. B at 2-3.)

Indian

Tribal

cultural”

These

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

Charlestown.

(a.k.a.
(Id.)

Philip

Peckham

property),”

both

in

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.”
Although

(Id.)
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

3

The relevant amended stipulation, Stipulation No. 3, struck
in its entirety and replaced the original Stipulation No. 3 in the
PA.
3

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.
17.)

(Compl. ¶ 16-

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

(Compl., Ex. D at 2.)

to

the

Secretary

of

Transportation.

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

unsuccessful.”

state

to

reconsider

that

condition

have

been

(Id. at 3.)

On March 31, 2017, Plaintiff initiated the instant lawsuit
against Federal and State Defendants asserting breach-of-contract

4

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.)
4

claims and seeking declaratory and injunctive relief.
26-36.)
II.

(Compl. ¶¶

These motions followed.

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

5

Menge v. N. Am. Specialty Ins. Co., 905 F. Supp. 2d 414,
416 (D.R.I. 2012).
6

Id.; see also Murphy v. United States, 45 F.3d 520, 522 (1st
Cir. 1995).
7

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)).
8

Twombly, 550 U.S. at 555 (internal citations omitted).
5

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.
NHPA

is

the

preserved. 9

goal

of

ensuring

that

At the core of the

historical

resources

are

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

9

See Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of
Interior, 608 F.3d 592, 609 (9th Cir. 2010).
10

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
undertaking.”
Id.; see also 36 C.F.R. § 800.6(e), (g).
The
complete text of section 106 provides:
The head of any Federal agency having
direct or indirect jurisdiction over a
proposed
Federal
or
federally
assisted
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
undertaking.
54 U.S.C. § 306108.
6

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
to

“negotiate

a

Moreover, the regulations permit the ACHP

programmatic

agreement

to

govern

the

implementation of a particular program or the resolution of adverse
effects

from

certain

complex

project

situations

or

undertakings.” 15

11

See 54 U.S.C. §§ 304101, 304108; 36 C.F.R. § 800.

12

36 C.F.R. § 800.1.

13

Id. § 800.1(a).

14

Id.

15

Id. § 800.14(b).
7

multiple

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
suit,

“waiver

of

For the federal government to consent to

sovereign

immunity

expressed’ in statutory text.” 18

must

be

‘unequivocally

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

16

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.
17

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
Cir. 1999)).
18

Cooper, 566 U.S. at 290 (quoting Lane v. Pena, 518 U.S.
187, 192 (1996)).
8

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

19

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.”).
20

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).
21

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)).
9

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
permit

termination

at

any

time;

and

(3)

Plaintiff

demonstrated a clear entitlement to injunctive relief.

has

not

(Id.)

This Court need not delve into the merits of State Defendants’
assertions

because

Plaintiff

jurisdictional roadblock. 23

cannot

clear

a

preliminary

Plaintiff’s claims pursuant to the

22

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).
23

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,
10

Declaratory Judgment Act must fail because “[t]he Declaratory
Judgment Act does not in itself confer subject matter jurisdiction;
it

provides

a

jurisdiction.” 24
Plaintiff’s

remedy

for

disputes

already

having

federal

In other words, to survive a motion to dismiss,

claims

must

“come

within

the

federal

courts’

jurisdiction on some other basis.” 25
The

two

other

bases

that

Plaintiff

cites

to

afford

jurisdiction, that is, the federal questions from which this
dispute emanates, are the APA and the NHPA.

Plaintiff’s averment

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.”
Gonzalez v.
Thaler, 565 U.S. 134, 141 (2012).
24

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).
25

Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530,
534 (1st Cir. 1995).
26

Town of Portsmouth, 813 F.3d at 64.
11

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

Notwithstanding,

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

27

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).
28

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).
29

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
(S.D.N.Y. 2009).
12

action.

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.

Specifically, in

Sandoval, the Supreme Court declared that, “[s]tatutes that focus
on the person regulated rather than the individuals protected
create

‘no

implication

of

an

intent

particular class of persons.’” 30

to

confer

rights

on

a

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:

“Section

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

The

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
or

entities

that

may

be

harmed

through

violation

of

NHPA’s

dictates, but rather, . . . to the persons regulated.” 32

30

532 U.S. at 289 (quoting California v. Sierra Club, 451
U.S. 287, 294 (1981)).
31

Id. (emphasis added).

32

San Carlos Apache Tribe, 417 F.3d at 1095.
To further
bolster its conclusion that the NHPA does not confer a private
right of action, the Ninth Circuit analogized the NHPA to its
13

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
cannot

be

entitled

to

relief,

the

Court

need

not

address

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.
Id.
Notably, the First
Circuit Court of Appeals recently reaffirmed its express holding
that “NEPA provides no right of action at all.”
Town of
Portsmouth, 813 F.3d at 62.
33

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).
These
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).
14

IV.

Conclusion
Accordingly, Federal Defendants’ Motion To Dismiss (ECF No.

18) and State Defendants’ Motion To Dismiss (ECF No. 19) are hereby
GRANTED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: September 11, 2017

15