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 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
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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
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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.
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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
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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 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. 903 F.3d at 29. 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. Id. at 30. 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.” Id. 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.” Id. 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 id. at 29.
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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, 551 U.S. 89, 93 (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, 292 F.3d
235, 242 (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., 116 F. Supp. 2d 131, 135 (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., 534 U.S. 506, 511–14 (2002); Bryant v. Pepco, 730 F. Supp. 2d 25, 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(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, 556 U.S. at 678. A court need not
accept a plaintiff’s legal conclusions as true, see id., nor must a court presume the veracity of
legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555.
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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.” 5 U.S.C. § 706(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., 463
U.S. 29, 43 (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, 753 F.3d 1304, 1313 (D.C. Cir. 2014)
(quoting State Farm, 463 U.S. at 43). 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, 935
F. Supp. 2d 14, 22-23 (D.D.C. 2013) (quoting Stuttering Found. of Am. v. Springer, 498 F. Supp.
2d 203, 207 (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, 229 F.3d 277, 284 (D.C. Cir. 2000); Akpan v. Cissna, 288 F.
Supp. 3d 155, 165 (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.
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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. Id. 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. Id. 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.
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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, 87 F. Supp. 3d 298, 301 (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, 749 F.2d 788,
792 (D.C. Cir. 1984)); Farrell v. Tillerson, 315 F. Supp. 3d 47, 72 n.16 (D.D.C. 2018) (citing
Boswell, 749 F.2d at 793); Swedish American Hosp. v. Sebelius, 691 F. Supp. 2d 80, 89 (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, 2017 WL 4011149, 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, 903 F.3d at 30. Here, to the contrary, the APA provides the requisite waiver of
sovereign immunity. See 5 U.S.C. § 702.
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