Narragansett Indian Tribe v. Nason

NARRAGANSETT INDIAN TRIBE,ACTING BY AND THROUGH THE NARRAGANSETT INDIAN TRIBALHISTORIC PRESERVATION OFFICE, Plaintiff, v. NICOLE R. NASON in her official capacity as Deputy Administratorof the FEDERAL HIGHWAY ADMINISTRATION, Defendant.

Civil Action No.: 20-576 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 22, 2020

Re Document No.: 12

MEMORANDUM OPINION

DENYING DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

In this case, the Narragansett Indian Tribe (the "Tribe"), acting through the Narragansett Indian Tribal Historic Preservation Office ("NITHPO"), challenges administrative action taken by the Federal Highway Association ("FHWA") with respect to a highway project in Rhode Island. The National Historic Preservation Act ("NHPA"), codified at 54 U.S.C. §§300101 et seq, requires that federal agencies "take into account" the preservation of historic sites when implementing federal projects. NITHPO argues that the termination of a programmatic agreement formed pursuant to NHPA and federal regulations—an agreement formed between FHWA, NITHPO, and Rhode Island state agencies that, by regulation, can fulfill the statutory requirements of NHPA—constitutes arbitrary and capricious agency action under the Administrative Procedure Act ("APA"). Defendant moves to dismiss this case, arguing that NITHPO has failed to plead sufficient facts to state a valid claim. Because the Court finds that Plaintiff has alleged sufficient facts to state a claim under the APA, and for the reasons set forth below, the Court denies Defendant's motion and will await motions for summary judgment with citations to the full administrative record.

II. BACKGROUND

A. Statutory and Regulatory Framework

The NHPA requires that any federal agency "having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking . . . prior to the approval of the expenditure of any Federal funds on the undertaking . . . shall take into account the effect of the undertaking on any historic property." 54 U.S.C. § 306108. This requirement is often referred to as the "Section 106" process. The Advisory Council on Historic Preservation ("ACHP") is the agency responsible for issuing regulations that implement the Section 106 process. 36 C.F.R. § 800.2(b). Regulations codified at 36 C.F.R. § 800 et seq lay out the steps an agency must take to comply with NHPA's requirement to "take into account the effect of the undertaking on any historic property." "The section 106 process seeks to accommodate historic preservation concerns with the needs of Federal undertakings through consultation among the agency official and other parties with an interest in the effects of the undertaking on historic properties, commencing at the early stages of project planning." 36 C.F.R. § 800.1(a). Subpart B of this chapter of the Code of Federal Regulations lays out in detail the normal Section 106 process. See 36 C.F.R. §§ 800.3-800.13. Subpart C discusses program alternatives. See 36 C.F.R. §§ 800.14-800.16.

One type of program alternative to the Section 106 process is the development of programmatic agreements. See 36 C.F.R. § 800.14(b). Programmatic agreements "govern the implementation of a particular program or the resolution of adverse effects from certain complex project situations or multiple undertakings." Id. Before implementing a programmatic agreement, the federal agency must consult with the appropriate stake holders, including state historical preservation offices and Indian tribes. Id. § 800.14(b)(2)(i). Programmatic agreements take effect when executed by the stakeholders. Id. § 800.14(b)(2)(iii). "Compliance with the procedures established by an approved programmatic agreement satisfies the agency's section 106 responsibilities for all individual undertakings . . . covered by the agreement." Id. The regulations state that if the ACHP "determines that the terms of a programmatic agreement are not being carried out, or if such an agreement is terminated, the agency official shall comply with subpart B of this part" with respect to the undertaking covered by the agreement. Id. § 800.14(b)(2)(v). An approved programmatic agreement satisfies an agency's Section 106 responsibilities "until it expires or is terminated by the agency . . . or the [ACHP]." Id. § 800.14(b)(2)(iii).

Because federal regulations state that compliance with programmatic agreements fulfills an agency's Section 106 responsibilities, courts analyze programmatic agreements to determine whether agency action is compliant with their terms. See Dine Citizens Against Ruining Our Env't v. Bernhardt, 923 F.3d 831, 847 (10th Cir. 2019) (stating that the issue to resolve is whether agency violated requirements of a programmatic agreement); Colo. River Indian Tribes v. Dep't of Interior, No. ED CV-1402504 JAK (SPx), 2015 WL 12661945, at *13 (C.D. Cal. June 11, 2015) (explaining that obligations under a programmatic agreement serve as a substitute to compliance with Section 106). Holding an agency to the terms of a programmatic agreement follows from the regulatory language; if "[c]ompliance with the procedures established by an approved programmatic agreement" can satisfy an agency's Section 106 obligations, 36 C.F.R. § 800.14(b)(2)(iii), noncompliance with the terms would not satisfy those obligations.

More generally, Section 106 does not dictate substantive results. Instead, Section 106 is a procedural statute requiring a federal agency to take certain steps prior to beginning a project. See Nat'l Min. Ass'n v. Fowler, 324 F.3d 752, 755 (D.C. Cir. 2003) ("An essentially procedural statute, section 106 imposes no substantive standards on agencies, but it does require them to solicit the [ACHP's] comments and to take into account the effect of [their] undertakings.") (internal quotations and citations omitted).

B. Procedural History

As pled in the Complaint, FHWA has provided substantial funding for the replacement of the I-95 Providence Viaduct Bridge. Compl. ¶ 12, ECF No. 1. In the initial planning phases of the project, FHWA determined that the bridge replacement "would result in adverse effects on the Providence Covelands Archaeological District." Id. ¶ 15. To address the adverse effects, FHWA developed a programmatic agreement in consultation with NITHPO, the Rhode Island State Historic Preservation Office ("RISHPO"), and the Rhode Island Department of Transportation ("RIDOT"). Id. ¶ 17.

The programmatic agreement required "FHWA in coordination with RIDOT" to acquire and transfer ownership of three parcels of land to the Tribe. Id. ¶ 21. The parcels, as identified in the Complaint, are the Salt Pond Archaeological Preserve, the so-called "Providence Boys Club - Camp Davis" property, and the so-called "Chief Sachem Night Hawk" property. Id. The three parcels of land "have inherently historic, cultural, and religious significance to the Tribe." Id. ¶ 26. The transfer of ownership was meant to mitigate the negative effects of the highway project. See id. ¶¶ 15-19.

Construction began on the highway project in June 2013, but ownership of the properties had not yet been transferred to the Tribe. Id. ¶ 29. At this point, the parties to the programmatic agreement reached an impasse. RIDOT refused to transfer title of the Providence Boys Club - Camp Davis and Chief Sachem Night Hawk properties to the Tribe unless the Tribe specifically waived sovereign immunity with respect to those properties. Id. ¶ 30. But the programmatic agreement contained no provision requiring the waiver of sovereign immunity. Id. ¶ 31. The Tribe thus refused to agree to the condition and RIDOT refused to transfer the properties absent a waiver. Confronted with this impasse, FHWA sought to terminate the programmatic agreement even though construction on the southbound lane had already been completed and opened to traffic. Id. ¶¶ 32, 35.

The ACHP issued comments on the proposed termination of the programmatic agreement on May 3, 2017. Id. ¶ 36. The ACHP stated that the project should not be delayed, that the Salt Pond Archaeological Preserve should be preserved under the terms of the original programmatic agreement, and that the other two parcels should be transferred to the Tribe without a waiver of sovereign immunity. Id. ¶ 38. After receiving ACHP's comments and taking them into consideration, FHWA determined it would reinitiate the normal Section 106 consultation process and draft a new programmatic agreement. Id. ¶ 39. FHWA outlined new mitigation items to address the adverse effects of the project, including that in lieu of the land transfers of the Providence Boys Club - Camp Davis and Chief Sachem Night Hawk properties, the programmatic agreement would implement an academic-level historic context document about the Tribe, Section 106 training for the Tribe, a video documentary about the Tribe, and a teaching curriculum for Rhode Island public schools about the Tribe. Id. ¶ 40. NITHPO claims that terminating the original programmatic agreement and "dictating new proposed mitigation items—items that the Tribe was never consulted about—is arbitrary and capricious." Id. ¶ 49.

This is not the first lawsuit the Tribe has filed regarding the Viaduct Bridge project and the impasse reached between the parties. In 2017 and 2018, the District of Rhode Island and the First Circuit Court of Appeals ruled on a lawsuit brought by the Tribe alleging breach-of-contract claims stemming from RIDOT's refusal to transfer the properties. Narragansett Indian Tribe, by and through the Narragansett Indian Tribal Historic Pres. Office v. Rhode Island Dep't of Transp., No. 17-cv-125, 2017 WL 4011149, at *2 (D.R.I. Sept. 11, 2017), aff'd, 903 F.3d 26 (1st Cir. 2018). The district court dismissed the claims against the federal defendants because the Complaint was "devoid of any assertion that Federal Defendants' final agency action caused Plaintiff harm." Id. at *3. The court reasoned that the Tribe's claims were generally...