Narragansett Indian Tribe v. Hendrickson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NARRAGANSETT INDIAN TRIBE, :
ACTING BY AND THROUGH THE :
NARRAGANSETT INDIAN TRIBAL : Civil Action No.: 20-576 (RC)
HISTORIC PRESERVATION OFFICE, :
: Re Document Nos.: 47, 53, 55, 58, 59,
Plaintiff, : 63, 70
:
v. :
:
STEPHANIE POLLACK, :
Acting Administrator, Federal Highway :
Administration, et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING STATE DEFENDANTS’ MOTION TO DISMISS (ECF NO. 47);
GRANTING IN PART AND DENYING IN PART AGENCY’S MOTION TO DISMISS AND MOTION FOR
SUMMARY JUDGMENT (ECF NO. 63);
DENYING NARRAGANSETT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 53);
DENYING NARRAGANSETT’S MOTION TO COMPEL ADMINISTRATIVE RECORD (ECF NO. 55);
GRANTING THE AGENCY’S MOTION FOR EXTENSION OF TIME (ECF NO. 58);
DENYING NARRAGANSETT’S MOTION FOR SANCTIONS (ECF NO. 59);
DENYING NARRAGANSETT’S MOTION TO AMEND/CORRECT (ECF NO. 70)

I. INTRODUCTION

The Narragansett Indian Tribe, acting by and through the Narragansett Indian Tribal

Historic Preservation Office (“Narragansett” or “Tribe”), brings this action against Stephanie

Pollack, who is Acting Administrator of the Federal Highway Administration (“Agency”), and

several Rhode Island defendants—the state itself, its Department of Transportation, and Claire

Richards, Executive Counsel at the Rhode Island Office of the Governor (“State Defendants”)—

challenging actions taken regarding 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. Narragansett argues that the defendants acted unlawfully when they terminated a

programmatic agreement that was formed pursuant to NHPA and federal regulations which was

meant to fulfill the NHPA statutory requirement. The State Defendants move to dismiss the

Amended Complaint as it pertains to them on several grounds, including personal jurisdiction.

The Agency moves to dismiss for lack of standing and for summary judgment as to the Agency.

The Court holds that Narragansett has not demonstrated personal jurisdiction over the State

Defendants nor standing as to the claim against the Agency and therefore grants both motions to

dismiss.

II. FACTUAL BACKGROUND

A. Statutory and Regulatory Framework 1

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

1
This section is drawn from the Court’s earlier opinion in this case. See Narragansett
Indian Tribe by & Through Narragansett Indian Tribal Historic Pres. Off. v. Nason, No. CV 20-
576 (RC), 2020 WL 4201633, at *1–2 (D.D.C. July 22, 2020).

2
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 id. §§ 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 stakeholders, 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

3
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. History Up to Previous Opinion 2

As pled in the initial Complaint, FHWA has provided substantial funding for the

replacement of the I-95 Providence Viaduct Bridge. Compl. ¶ 12, ECF No. 1. 3 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 Narragansett,

2
This section is largely drawn from the Court’s earlier opinion in this case. See
Narragansett, 2020 WL 4201633, at *2–3.
3
Narragansett originally filed this case with the U.S. District Court for the District of
Rhode Island and subsequently moved to transfer to this Court. See Mem. & Order at 2–3, ECF
No. 23 (granting Narragansett’s motion for reconsideration and, on reconsideration, granting
motion to transfer to the District of Columbia).

4
the Rhode Island State Historic Preservation Office, 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

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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. Narragansett

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. Off. v. R.I. 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

6
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.

C. Subsequent Procedural History

The Court denied the Agency’s earlier motion to dismiss in this case, holding that

Narragansett “has alleged sufficient facts to survive a motion to dismiss” premised on the

Administrative Procedure Act’s prohibition on arbitrary and capricious action, and stating that

the Court would “await motions for summary judgment with citations to the administrative

record.” Narragansett Indian Tribe by & Through Narragansett Indian Tribal Historic Pres.

Off. v. Nason, No. CV 20-576 (RC), 2020 WL 4201633, at *4 (D.D.C. July 22, 2020). After that

opinion was issued, Narragansett filed an Amended Complaint adding the State Defendants and a

claim for a Fourteenth Amendment violation. See Am. Compl., ECF No. 43.

The State Defendants moved to dismiss the Amended Complaint on many grounds: lack

of personal jurisdiction, improper venue, improper process and service of process, lack of subject

matter jurisdiction, and failure to state a claim. State Defs.’ Mem. L. Supp. Mot. Dismiss (“R.I.

Mem.”) at 1–2, ECF No. 47-1; Pl.’s Mem. P. & A. in Opp’n State Defs.’ Mot. Dismiss (“R.I.

Opp’n”), ECF No. 49; State Defs.’ Reply Mem. Supp. Mot. Dismiss (“R.I. Reply”), ECF No. 50.

7
Narragansett moved for summary judgment that the Agency’s actions were arbitrary and

capricious and not in accordance with law. 4 Mem. P. & A. Supp. Pl.’s Mot. Summ. J. (“Fed.

Mem.”), ECF No. 53-1. The Agency opposed, moved to dismiss for lack of standing, and cross-

moved for summary judgment. Mem. P. & A. Supp. Fed. Def.’s Opp’n Pl.’s Mot. Summ. J,

Mot. Dismiss for Lack of Subject Matter Jurisdiction, & Cross-Mot. Summ. J. on Count I (“Fed.

Opp’n & Mem.”), ECF Nos. 63 & 64; Pl.’s Resp. Def.’s Opp’n Pl.’s Mot. Summ. J, & Pl.’s

Opp’n Def.’s Mot. Dismiss & Cross Mot. Summ. J. & Pl.’s Request to Correct/Complete or

Suppl. R. (“Fed. Reply & Opp’n”), ECF Nos. 66, 69 & 70; Fed. Def.’s Reply Supp. Mot.

Dismiss for Lack of Subject-Matter Jurisdiction & Cross-Mot. Summ. J. on Count I (“Fed.

Reply”), ECF No. 68.

After Narragansett filed its motion for summary judgment, but before the Agency’s

response, Narragansett filed a motion to compel completion and amendment of the

administrative record. Mem. Supp. Pl.’s Mot. Compel Completion & Amendment of Admin. R.,

ECF No. 55-1. After moving for, and receiving, an extension on its response deadline, the

Agency moved for a second extension of time, which therein noted Narragansett’s opposition.

4
The State Defendants filed a short opposition to Narragansett’s motion for summary
judgment stating that they “construe Plaintiff’s Motion for Summary Judgment as only moving
for summary judgment regarding the claims against the Federal Defendant.” State Defs.’ Resp.
Regarding Pl.’s Mot. Summ. J. &/or State Defs.’ Mot. Stay Briefing as to State Defs.’ at 2, ECF
No. 54. According to the State Defendants, their counsel had reached out to Narragansett’s
counsel to clarify that the motion was against only the Agency, but Narragansett’s counsel
provided no clarification. Id. at 2–3. Narragansett did not file a reply in response to the State
Defendants’ opposition. The motion does bear some indication that it applies only to the
Agency. See, e.g., Fed. Mem. at ii (major headings in table of contents referring only to arbitrary
and capricious action taken by the Agency). Given that Narragansett did not dispute the State
Defendants’ assertion that this motion does not apply to them, either with a reply brief or
informally to State Defendants’ counsel, the Court construes the motion to move for summary
judgment against only the Agency. Even if Narragansett’s motion for summary judgment also
applied to the State Defendants, it would fail against them because they are dismissed on
personal-jurisdiction grounds per the Court’s ruling below.

8
Fed. Def.’s 2d Mot. Extension of Time to Respond to Pl.’s Mot. Suppl. Admin. R., ECF No. 58.

Rather than file an opposition, Narragansett filed a motion for sanctions. Pl.’s Mem. Supp. Mot.

Sanctions, ECF No. 59-1. The Agency filed an opposition to the motion for sanctions and later

filed its opposition to the motion to compel on the same day that it filed its opposition to

Narragansett’s motion for summary judgment, motion to dismiss, and cross-motion for summary

judgment. Fed. Def.’s Opp’n Pl.’s Mot. Sanctions, ECF No. 61; Fed. Def.’s Partial Opp’n Pl.’s

Mot. Suppl. Admin. R., ECF No. 62. Narragansett’s reply and opposition brief regarding the

motion to dismiss and motions for summary judgment also included a request to correct,

complete, or supplement the record, which the Agency opposed in its final reply brief. See Fed.

Reply & Opp’n at 18–22; Fed. Reply at 11–14.

III. LEGAL STANDARD

Rule 12(b)(2) of the Federal Rules of Civil Procedure allows a court to dismiss an action

when the court lacks personal jurisdiction over the defendant. The plaintiff bears the burden of

establishing that a court has personal jurisdiction over each defendant. Erwin-Simpson v.

AirAsia Berhad, 985 F.3d 883, 888 (D.C. Cir. 2021). “Personal jurisdiction may be satisfied by

either specific or general jurisdiction.” Brit UW, Ltd. v. Manhattan Beachwear, LLC, 235 F.

Supp. 3d 48, 54 (D.D.C. 2017) (citing D’Onofrio v. SFX Sports Grp., Inc., 534 F. Supp. 2d 86,

90 (D.D.C. 2008)). While factual discrepancies in the record must be resolved in favor of the

plaintiff, see Livnat v. Palestinian Auth., 851 F.3d 45, 57 (D.C. Cir. 2017), a court is not required

to accept as true a plaintiff’s “conclusory statements” or “bare allegations” regarding the

defendants’ actions when conducting the personal jurisdiction analysis, GTE New Media Servs.

Inc. v. BellSouth Corp., 199 F.3d 1343, 1349 (D.C. Cir. 2000). The court may “receive and

weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts.”

9
United States v. Philip Morris, Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000) (citation

omitted).

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of an

action for lack of subject matter jurisdiction. Constitutional standing is a jurisdictional issue

because “the defect of standing is a defect in subject matter jurisdiction.” Haase v. Sessions, 835

F.2d 902, 906 (D.C. Cir. 1987). “The court must address the issue of jurisdiction as a threshold

matter, because absent jurisdiction the court lacks the authority to decide the case on any other

grounds.” Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 91 (D.D.C. 2000). “The party

invoking federal jurisdiction bears the burden of establishing” standing. Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992). When assessing standing at the motion to dismiss stage, the

Court will “accept the well-pleaded factual allegations as true and draw all reasonable inferences

from those allegations in the plaintiff’s favor,” but will “not assume the truth of legal

conclusions, nor . . . accept inferences that are unsupported by the facts set out in the complaint.”

Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (internal quotation marks and citations

omitted). “[B]ecause subject-matter jurisdiction relates to the Court’s power to hear the claim,

the Court must give the plaintiff’s factual allegations closer scrutiny when resolving a Rule

12(b)(1) motion than would be required for a Rule 12(b)(6) motion.” Am. Fed’n Gov’t Emps. v.

Sec’y Air Force, 841 F. Supp. 2d 233, 235–36 (D.D.C. 2012). “[W]here necessary, the court

may consider the complaint supplemented by undisputed facts evidenced in the record, or the

complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”

Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

10
 IV. ANALYSIS

A. State Defendants’ Motion to Dismiss

The State Defendants move for dismissal on several grounds: lack of personal

jurisdiction, improper venue, improper process and service of process, lack of subject matter

jurisdiction, and failure to state a claim. R.I. Mem. at 2. However, it is unnecessary to address

any of them other than personal jurisdiction given the clear success of the State Defendants’

motion on that ground. See Erwin-Simpson v. AirAsia Berhad, 985 F.3d 883, 888 (D.C. Cir.

2021) (“[A] court ‘does not abuse its discretion by turning directly to personal jurisdiction’ when

it ‘has before it a straightforward personal jurisdiction issue presenting no complex question of

state law, and the alleged defect in subject-matter jurisdiction raises a difficult and novel

question.’” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999))).

“Federal courts ordinarily follow state law in determining the bounds of their jurisdiction

over persons.” Erwin-Simpson, 985 F.3d at 888 (quoting Daimler AG v. Bauman, 571 U.S. 117,

125 (2014)). There are two types of personal jurisdiction: general and specific. Shatsky v.

Palestine Liberation Org., 955 F.3d 1016, 1036 (D.C. Cir. 2020). General jurisdiction “sets a

high bar,” requiring a defendant to have “continuous and systematic” contacts with the forum

state, but then permitting the forum to adjudicate any claims brought against the defendant.

D’Onofrio v. SFX Sports Grp., Inc., 534 F. Supp. 2d 86, 90 (D.D.C. 2008). Specific jurisdiction

requires that the suit “arise out of or relate to the defendant’s contacts with the forum.” Bristol-

Myers Squibb Co. v. Superior Ct. of Cal., 137 S. Ct. 1773, 1780 (2017). “This requires

determining both that (i) jurisdiction is permissible under the forum state’s long-arm statute, and

(ii) the exercise of personal jurisdiction comports with the Due Process Clause.” Urquhart-

Bradley v. Mobley, 964 F.3d 36, 44 (D.C. Cir. 2020).

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 The State Defendants argue that they are not subject to either general or specific personal

jurisdiction of this Court. Regarding general personal jurisdiction, the State Defendants argue

that none of them reside in the District of Columbia and there is no other reason to conclude that

any of them are at “home” in the District. See R.I. Mem. at 11 (citing affidavit of Defendant

Claire Richards, which states that Richards resides in Rhode Island and has never resided in the

District). Regarding specific personal jurisdiction, the State Defendants argue that neither the

District’s long-arm statute nor the requirements of the Due Process Clause are met. They argue

that none of the State Defendants “have the necessary connections with the District of Columbia

to implicate any of the grounds enumerated in the District of Columbia’s long-arm statute” nor

the “minimum contacts that would satisfy due process” because the allegations concern a

construction project in Rhode Island, potential transfer of land in Rhode Island, and actions

allegedly taken by Richards while she was employed by Rhode Island. R.I. Mem. at 13–14.

They also cite authority that the District’s long-arm statute does not apply to states, meaning all

State Defendants except Richards in her personal capacity do not fall under the long-arm statute

for that additional reason. Id. at 13.

Narragansett gives almost no response to these arguments. It makes no reference to

whether it asserts general or specific personal jurisdiction, nor is there a reference to any

provision of D.C.’s long-arm statute. All Narragansett says about personal jurisdiction in its

opposition to the State Defendants’ motion is that the State Defendants’ waiver of sovereign

immunity gives this Court personal jurisdiction, R.I. Opp’n at 2, and that the “unique facts and

circumstances give ‘rise’ to federal subject matter and personal jurisdiction,” id. at 5. But

Narragansett does not cite any authority for the proposition that waiver of sovereign immunity

would necessarily give this Court personal jurisdiction over the State Defendants. The “unique

12
facts and circumstances” discussed by Narragansett also seem directed at subject matter

jurisdiction. Narragansett cites Grable in support of this proposition, but that case concerned

only subject matter jurisdiction. Id.; see Grable & Sons Metal Prod., Inc. v. Darue Eng’g &

Mfg., 545 U.S. 308, 311–12 (2005) (addressing whether “a federal cause of action” is always “a

condition for exercising federal-question jurisdiction” under 42 U.S.C. § 1331).

Given the lack of citation to any facts or authority, the Court holds that Narragansett has

not met its burden to demonstrate that this Court has personal jurisdiction over the State

Defendants. 5 The State Defendants argue that dismissal is the appropriate remedy as opposed to

transferring back to Rhode Island. See R.I. Mem. at 14–17; R.I. Reply at 3. The Court agrees,

largely because Narragansett has not even made such a request for transfer in response to the

State Defendants’ suggestion. The State Defendants’ motion to dismiss is therefore granted and

the Amended Complaint is dismissed without prejudice as to the State Defendants.

B. Motion to Dismiss and Motions for Summary Judgment Relating to Agency

The Agency moves to dismiss for lack of subject matter jurisdiction because Narragansett

lacks standing and moves for summary judgment on Count I of the Amended Complaint. Fed.

Opp’n & Mem. at 2. Narragansett moves for summary judgment that the Agency acted

arbitrarily and capriciously. Fed. Mem. at 1. For the reasons given below, the Court holds that

Narragansett has not demonstrated that it has standing to assert Count I against the Agency and

5
The Court hesitates to go beyond the parties’ briefs, but notes that the State Defendants’
contacts with the District seem to consist of negotiations with the federal government over the
programmatic agreement and Section 106 process, and these negotiations may fall under the
“government contacts” exception to the District’s long-arm statute. See Alkanani v. Aegis Def.
Servs., LLC, 976 F. Supp. 2d 13, 25 (D.D.C. 2014) (holding that contract “negotiated with the
Department of Defense cannot serve as a ‘business transaction’ upon which specific jurisdiction
may be predicated”). Of course, the Court would be more confident about the applicability of
this exception if Narragansett had explained its asserted basis for personal jurisdiction by citing
relevant authority and facts.

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therefore grants the Agency’s motion to dismiss and denies both motions for summary judgment

as moot. “Due to the Court’s finding that Plaintiff[] lack[s] constitutional standing, the Court

does not reach the remainder of [the Federal] Defendant[’s] arguments.” Tanner-Brown v.

Jewell, 153 F. Supp. 3d 102, 107 (D.D.C. 2016), aff’d sub nom. Tanner-Brown v. Zinke, 709 F.

App’x 17 (D.C. Cir. 2017).

“The ‘irreducible constitutional minimum of standing contains three elements’: injury in

fact, causation, and redressability.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). “Injury in fact is the ‘invasion of a legally

protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not

conjectural or hypothetical.’” Id. (quoting Lujan, 504 U.S. at 560) (alteration in original). “The

‘causal connection between the injury and the conduct complained of’ must be ‘fairly traceable

to the challenged action of the defendant, and not the result of the independent action of some

third party not before the court.’” Id. (quoting Lujan, 504 U.S. at 561). Finally, “it must be

‘likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision.’” Id. (quoting Lujan, 504 U.S. at 561).

The Agency appears to argue primarily that Narragansett has failed to plead the latter two

elements: causal connection and redressability. 6 The Agency does not seem to challenge that

there is an alleged injury in fact, characterizing the injury as either “harm to particular land not

transferred or preserved” or being deprived “of the benefits of the land transfers or other

provisions included in the Programmatic Agreement.” Fed. Opp’n & Mem. at 11. Regarding

causal connection and redressability, the Agency argues that the alleged injuries are “fairly

6
The Agency makes at least some other arguments, such as that this case should be
dismissed under the political question doctrine. See Fed. Opp’n & Mem. at 13 n.4. It is not
necessary to address these other arguments given the Court’s holding on standing.

14
traced to the dispute between the Rhode Island DOT and Plaintiff,” not traced to the Agency. Id.

at 13. In other words, the Agency argues that the State Defendants caused the alleged injuries by

insisting on the sovereign immunity waiver and failing to transfer the properties, and that the

injuries would therefore be redressable only through the State Defendants. See id. at 14. The

Agency cites case law for the proposition that it is difficult to show standing where “causation or

redressability hinges on the action of third parties.” Id. at 14–15; see, e.g., Nat’l Wrestling

Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004) (“When a plaintiff’s

asserted injury arises from the Government’s regulation of a third party that is not before the

court, it becomes ‘substantially more difficult’ to establish standing.”), abrogation on other

grounds recognized by Perry Cap. LLC v. Mnuchin, 864 F.3d 591 (D.C. Cir. 2017); Haitian

Refugee Ctr. v. Gracey, 809 F.2d 794, 802 (D.C. Cir. 1987) (“[C]ausation is extremely unlikely

if the causal chain involves a prediction about the independent actions of third parties.”).

Narragansett barely addresses standing in its opposition. First, Narragansett states that

standing is no longer at issue now that there is final agency action. Fed. Reply & Opp’n at 2.

This seems to be referencing the Court’s earlier opinion denying the Agency’s motion to dismiss,

but that opinion only addressed whether Narragansett failed to state a claim, not standing. See

Narragansett, 2020 WL 4201633. Next, Narragansett states that it has “standing as the historic

tribe that suffered harm to its historic tribal properties,” citing 5 U.S.C. § 702. Fed. Reply &

Opp’n at 2 n.1. But this does not explain how Narragansett meets the constitutional standing

requirements beyond identifying an injury in fact, which the Agency does not dispute. Finally,

Narragansett addresses the Agency’s main argument—that Narragansett lacks standing because

“injury traces to the State of RI.” Id. at 5. But all Narragansett says on this point is that the

Agency is being inconsistent because, in the Agency’s Answer to the Amended Complaint, the

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Agency supposedly “admit[ed] there was no harm to” Narragansett “by either [the Agency] or

the State of RI because the Section 106 process was completed by the new PA.” Id. It is not

clear why this supposed inconsistency is relevant. Parties are expected to accept allegations for

purposes of motions to dismiss even while denying those allegations. Cf. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (“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).” (cleaned up)). Narragansett does not address the substance of the

Agency’s arguments about how there is no causation or redressability for the Agency due to the

State Defendants’ involvement, i.e., refusal to transfer land without waiver of sovereign

immunity.

In its Amended Complaint under the heading for standing, Narragansett also references

“the Tribe’s rights to be consulted on undertakings pursuant to the NHPA, such that historical

sites have been disturbed with no adequate remedy provided as per the PA and as required

pursuant to the NHPA.” Am. Compl. ¶ 4 (emphasis added). It is not clear whether Narragansett

is asserting a constitutional injury-in-fact of failure to consult. Narragansett did not provide

explanation in its briefing and, importantly, failed to dispute the Agency’s characterization of the

alleged injuries as being harm to the land itself and deprivation of the land. 7 See Fed. Opp’n &

7
The Agency’s third-party argument seems to focus on the termination of the first
programmatic agreement rather than formation of the second. See, e.g., Fed. Opp’n & Mem. at
11 (arguing that Narragansett does not allege that the Agency’s adoption of the new mitigation
items caused harm). But the third-party issue would remain even if focusing on the formation of
the second programmatic agreement as long as the relevant injuries-in-fact are harms to the land
or deprivation of the land because any remedy to those would still need to run through the State
Defendants. One exception to this might be a theory that harm to the land could be redressed by
implementing other mitigation items different from both those in the original programmatic
agreement or the second programmatic agreement. Even if this theory were otherwise legally
sound—which the Court will not opine on without hearing from both sides—Narragansett did
not ask for this remedy in their complaint. See Am. Compl. at 11–12 (requesting, among other

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Mem. at 11. If Narragansett did intend to pursue this theory, it has not addressed whether such a

failure to consult could itself suffice as a redressable injury-in-fact independent from any

causation or redressability issues relating to third parties. 8

Given the State Defendants’ role in the relevant conduct and Narragansett’s failure to

squarely address the Agency’s arguments, the Court cannot clearly discern how the alleged harm

would be redressed by a determination that the Agency acted arbitrarily and capriciously as

required to show constitutional standing. Such a connection might exist; for example, “courts

occasionally find the elements of standing to be satisfied in cases challenging government action

on the basis of third-party conduct.” Nat’l Wrestling Coaches Ass’n, 366 F.3d at 940. But it is

far from clear based on the Amended Complaint and Narragansett’s briefing whether this is such

a case. Given the case law’s guidance about the difficulty of showing standing when a third

party is involved, the Court hesitates to speculate about how standing can be shown when

Narragansett declined the opportunity to try and distinguish the Agency’s cases or more fully

explain how it has standing. See Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013)

(“It is not the obligation of this Court to research and construct the legal arguments available to

things, that Defendants be “[e]njoined . . . from taking any action to transfer or facilitate the
transfer of the Mitigation Properties contrary to the PA” and damages for harm to “sites of
cultural and religious significance,” but not requesting alternative mitigation items).
8
Even assuming that a failure to consult is an injury sufficient to confer standing,
Narragansett does not elaborate in its briefs on how exactly the Agency failed to consult with
Narragansett. In other words, Narragansett does not lay out what level of consultation is
required by regulation and what level occurred. See, e.g., Fed. Mem. at ii (arguing only that “the
termination of the Programmatic Agreement (PA) by FHWA was arbitrary and capricious and in
Violation of the APA and Federal Law,” but not that the Agency failed to consult while creating
the second programmatic agreement); id. at 18 (explaining only that the new mitigation items
were decided “without agreement of the Tribe”); Fed. Reply & Opp’n at 3–4 (stating, without
further support, that the Agency terminated the programmatic agreement without Narragansett’s
consent and over its objection and that the new programmatic agreement failed to include
reasonable mitigation measures, but not otherwise mentioning consultation with Narragansett).

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the parties. To the contrary, perfunctory and undeveloped arguments, and arguments that are

unsupported by pertinent authority, are deemed waived.” (cleaned up)).

Adopting any of the hypothetical arguments or interpretations discussed by the Court in

this opinion regarding standing would have required an uncomfortable level of speculation. And

in failing to directly address the Agency’s arguments, the Court was deprived of seeing what, if

any, responses the Agency would give. Even pro se plaintiffs are required to explain how they

have standing to avoid such judicial speculation. See Curran v. Holder, 626 F. Supp. 2d 30, 33

(D.D.C. 2009) (“While pro se complaints are held to a less stringent standard than other

complaints, even a pro se plaintiff bears the burden of establishing that the Court has subject-

matter jurisdiction.” (citations and internal quotations omitted)). Narragansett’s briefs laid out

too few breadcrumbs about standing for the Court to follow them with confidence, which in turn

left too many questions unanswered. Accordingly, the Court must hold that Narragansett has not

sufficiently demonstrated standing to survive the Agency’s motion to dismiss. Narragansett’s

Amended Complaint is dismissed without prejudice as to the Agency. If Narragansett decides to

try again, the Court strongly encourages Narragansett to address—separately and clearly—each

of the Agency’s arguments.

C. Motions to Correct or Supplement and Motion for Sanctions

Both of Narragansett’s motions regarding the administrative record are denied as moot in

light of the Court granting defendants’ motions to dismiss. See Beyond Pesticides/Nat’l Coal.

Against Misuse of Pesticides v. Whitman, 360 F. Supp. 2d 69, 70–72 (D.D.C. 2004) (denying

motion to compel production of administrative record as moot after granting partial motion to

dismiss). With those motions denied as moot, the Agency’s delay in responding to the first

motion to supplement is harmless. The Agency’s motion for extension of time to respond to the

18
first motion to compel is therefore granted. See Fed. R. Civ. P. 6(b)(1) (permitting extension of

time “for good cause”). Narragansett’s motion for sanctions is also denied; there is no violation

to form the basis of sanctions now that the Court has granted the Agency’s motion for extension

of time. To the extent Narragansett seeks to serve a further amended complaint to cure the

deficiencies explained in this opinion, the Court encourages the parties to resolve issues

regarding the completeness of the administrative record, either by agreement or motion, before

filing motions that depend on that. Any motions by Narragansett to correct, amend, or

supplement the administrative record must clearly explain how the relevant legal tests are met to

justify such correction, amendment, or supplementation.

V. CONCLUSION

For the foregoing reasons, the parties’ motions are decided as follows:

• The State Defendants’ Motion to Dismiss (ECF No. 47) is GRANTED. The

Amended Complaint is dismissed WITHOUT PREJUDICE as to the State

Defendants.

• The Agency’s Motion to Dismiss and Cross-Motion for Summary Judgment (ECF

No. 63) is GRANTED as to the motion to dismiss and otherwise DENIED AS

MOOT. The Amended Complaint is dismissed WITHOUT PREJUDICE as to

the Agency.

• Narragansett’s Motion for Summary Judgment (ECF No. 53) is DENIED AS

MOOT.

• Narragansett’s Motion to Compel Administrative Record (ECF No. 55) is

DENIED AS MOOT.

• The Agency’s Motion for Extension of Time (ECF No. 58) is GRANTED.

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 • Narragansett’s Motion for Sanctions (ECF No. 59) is DENIED.

• Narragansett’s Motion to Amend/Correct (ECF No. 70) is DENIED AS MOOT.

An order consistent with this Memorandum Opinion is separately and contemporaneously

issued.

Dated: March 15, 2022 RUDOLPH CONTRERAS
United States District Judge

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