UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NARRAGANSETT INDIAN TRIBE, : ACTING BY AND THROUGH THE : NARRAGANSETT INDIAN TRIBAL : HISTORIC PRESERVATION OFFICE, : : Plaintiff, : Civil Action No.: 20-576 (RC) : v. : Re Document No.: 12 : NICOLE R. NASON in her : official capacity as Deputy Administrator of : the FEDERAL HIGHWAY : ADMINISTRATION, : : Defendant. :

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

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.”

. 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.

(b). Regulations codified at

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.”

(a). Subpart B of this

chapter of the Code of Federal Regulations lays out in detail the normal Section 106 process.

See

.3–800.13. Subpart C discusses program alternatives. See

.14–800.16.

One type of program alternative to the Section 106 process is the development of

programmatic agreements. See

(b). Programmatic agreements “govern the

2 implementation of a particular program or the resolution of adverse effects from certain complex

project situations or multiple undertakings.”

Before implementing a programmatic

agreement, the federal agency must consult with the appropriate stake holders, including state

historical preservation offices and Indian tribes.

§ 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,

(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),

, 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

3 approved programmatic agreement” can satisfy an agency’s Section 106 obligations,

(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,

(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.

4 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

5 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,

, at *2 (D.R.I. Sept. 11, 2017), aff’d,

(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 premised

on RIDOT’s refusal to transfer the land, not any action taken by FHWA, and therefore the court

lacked subject-matter jurisdiction with respect to the claims against the federal agency. Id. On

appeal, the Tribe argued that the NHPA creates a private cause of action that encompassed the

claims against FHWA.

. The First Circuit, assuming without deciding that the

NHPA does create a private cause of action, held that the Tribe failed to allege a violation of the

NHPA by the federal defendants.

. Instead, the court saw the complaint as an attempt to

compel “the federal defendants to participate as parties in a suit . . . arising out of RIDOT’s

alleged breach of contract.”

The court affirmed the dismissal and noted that “[n]othing in the

regulations requires a federal agency to enter into [a programmatic agreement]. And nothing in

the regulations prevents the agency from terminating such an agreement.”

The court passed

on the question of whether the APA’s waiver of sovereign immunity would allow a court to

review final agency action in this case. See

.

6 III. LEGAL STANDARD

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” in order to give the defendant fair notice of the claim and the grounds

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus,

(2007).

A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a complaint” under that

standard; it asks whether the plaintiff has properly stated a claim. Browning v. Clinton,

(D.C. Cir. 2002). A court considering such a motion presumes that the complaint’s

factual allegations are true and construes them liberally in the plaintiff’s favor. See, e.g., United

States v. Philip Morris, Inc.,

(D.D.C. 2000). It is not necessary for the

plaintiff to plead all elements of her prima facie case in the complaint. See Swierkiewicz v.

Sorema N.A.,

, 511–14 (2002); Bryant v. Pepco,

, 28–29 (D.D.C.

2010).

Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief

above the speculative level, on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements,” are

therefore insufficient to withstand a motion to dismiss. Iqbal,

. A court need not

accept a plaintiff’s legal conclusions as true, see

nor must a court presume the veracity of

legal conclusions that are couched as factual allegations, see Twombly,

.

7 IV. ANALYSIS

Under the APA, a plaintiff challenging agency action can prevail if a court finds that the

action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the

law.”

(2)(A). This standard of review encourages courts to defer to the agency’s

expertise. See Motor Vehicle Mfrs. Ass’n of U.S., Inc., v. State Farm Mut. Auto. Ins. Co.,

(1983). Agency action is arbitrary and capricious “if the agency has relied on factors

which Congress has not intended it to consider, entirely failed to consider an important aspect of

the problem, offered an explanation for its decision that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to a difference in view or the product of

agency expertise.” Del. Riverkeeper Network v. FERC,

(D.C. Cir. 2014)

(quoting State Farm,

). Rather than resolving factual issues, the district court’s

role in reviewing agency action “is to determine whether or not as a matter of law the evidence in

the administrative record permitted the agency to make the decision it did.” Bates v. Donley,

(D.D.C. 2013) (quoting Stuttering Found. of Am. v. Springer,

(D.D.C. 2007)). To state a proper claim under the APA, a plaintiff must allege facts

that, if true, plausibly establish that the agency action is arbitrary and capricious. See James V.

Hurson Assocs., Inc. v. Glickman,

(D.C. Cir. 2000); Akpan v. Cissna,

(D.D.C. 2018); XP Vehicles, Inc. v. Dep’t of Energy, 118 F. Supp 3d 38, 78

(D.D.C. 2015).

Defendant argues that APA review is highly deferential, that NITHPO’s disagreement

with the agency reasoning is not sufficient to support a valid claim, and that the “NHPA does not

require federal agencies to enter into programmatic agreements, nor prevents agencies from

terminating such agreements.” Def.’s Mot. Dismiss (“Def.’s Mot.”) at 9, ECF No. 12.

8 Defendant points out that the NHPA only requires that an agency follow certain procedural steps

and does not dictate substantive results; Defendant states that NITHPO’s complaint fails to

allege any failure to act in accordance with the procedures laid out in the NHPA.

9–10.

NITHPO argues that APA review may be deferential, but the standard is applicable only when a

court has the entire administrative record presented for review. Pl.’s Opp’n Mot. Dismiss at 8,

ECF No. 18. NITHPO states that, in light of liberal pleading standards, it has alleged sufficient

facts to support a claim under the APA.

at 8–9. The Complaint, according to NITHPO,

establishes that the project has “resulted in destruction of historic lands,” that the part of the

project “has been completed without adverse effects being addressed,” and that “the termination

of the [programmatic agreement] resulted in a complete failure to address and mitigate the

adverse effects” of the project. Id. at 9.

The Court finds that NITHPO has alleged sufficient facts to survive a motion to dismiss.

Defendant’s arguments about the highly deferential review of agency action under the APA,

while correct, are premature given that the Court does not have the administrative record or,

more importantly, the programmatic agreement at the heart of this dispute. While Defendant is

also correct that the regulations specifically contemplate termination of programmatic

agreements, and, thus, a termination is unlikely to violate the APA as being contrary to law, it

does not follow that termination will always be appropriate and cannot be considered violative of

the APA as arbitrary and capricious. That termination is specifically contemplated by

regulations does not necessarily insulate such termination from judicial review. 1 Defendant’s

arguments, rather than pointing to any failure to meet pleading standards, go to the merits of

1 Defendant originally argued that the Complaint should be dismissed because there had not yet been final agency action. See Def.’s Mot. at 7–8. Defendant has since withdrawn this argument. See Notice of Withdrawal of Arg. at 1–2 n.3, ECF No. 27.

9 whether FHWA acted arbitrarily and capriciously. See Def.’s Mot. at 10 (“the agency clearly

articulated the rationale for is decision”). Without reviewing the terms of the programmatic

agreement, the agency’s actions subsequent to termination pursuant to the Section 106 process,

and the full administrative record, the Court cannot state definitively whether FHWA’s actions

conformed with the procedural requirements of the approved programmatic agreement or Section

106. The Court will await motions for summary judgment with citations to the administrative

record. 2 See Vargus v. McHugh,

(D.D.C. 2015) (“When recourse to the

record is necessary, a court ‘should have before it neither more nor less information than did the

agency when it made its decision.”) (quoting Boswell Memorial Hosp. v. Heckler,

,

792 (D.C. Cir. 1984)); Farrell v. Tillerson,

, 72 n.16 (D.D.C. 2018) (citing

Boswell, 749 F.2d at 793); Swedish American Hosp. v. Sebelius,

(D.D.C.

2010) (denying a motion to dismiss where entire administrative record was not before the court).

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss is DENIED. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: July 22, 2020 RUDOLPH CONTRERAS United States District Judge

2 Defendant also argues that because a court previously ruled that it did not have jurisdiction to review the termination of the programmatic agreement, this Court should dismiss the Complaint under the doctrine of collateral estoppel. See Def.’s Mot. at 11–12. The Court rejects this argument. The previous court dismissed the Tribe’s complaint because it found there was no final agency action and thus no waiver of sovereign immunity. See Narragansett Indian Tribe,

, at *3. Here, the parties now agree that there has been final agency action, and, therefore, the jurisdictional defect noted before is no longer present. Similarly, the First Circuit dismissed the claims against the federal defendants because nothing in the FHWA waived sovereign immunity for the type of claims alleged in that complaint. See Narragansett Indian Tribe,

. Here, to the contrary, the APA provides the requisite waiver of sovereign immunity. See

.

10