Narragansett Indian Tribe v. Pollack

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NARRAGANSETT INDIAN TRIBE, :
acting by and through the Narragansett :
Indian Tribal Historic Preservation Office, :
: Civil Action No.: 22-2299 (RC)
Plaintiff, :
: Re Document Nos.: 18, 31, 33
:
v. :
:
STEPHANIE POLLACK, :
Acting Administrator, Federal Highway :
Administration, et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING STATE DEFENDANTS’ MOTION TO DISMISS; GRANTING IN PART AND DENYING IN
PART THE AGENCY’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO COMPEL
SUPPLEMENT TO ADMINISTRATIVE RECORD

I. INTRODUCTION

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

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

Pollack, in her capacity as Acting Administrator of the Federal Highway Administration

(“FHWA” or the “Agency”), and several Rhode Island defendants—the state itself, its

Department of Transportation, and Claire Richards, the Executive Counsel of the Rhode Island

Office of the Governor, in her individual capacity (collectively, “State Defendants”)—

challenging actions they allegedly took in connection with 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. This case represents the Tribe’s renewed attempt to press claims
asserted in a previous action that “involve[d] the same parties and claims,” which this Court

dismissed on March 15, 2022. Compl. at 1, see generally Narragansett Indian Tribe v. Pollack,

et al., No. 20-cv-0576, 2022 WL 782410 (D.D.C. Mar. 15, 2022). The Tribe argues that

Defendants acted unlawfully when they terminated and reformulated programmatic agreements

pursuant to the NHPA and related federal regulations. See Compl. at 2–3, ECF No. 1.

State Defendants and the Agency separately move to dismiss. See State Defs.’ Mot.

Dismiss (“State’s Mot.”), ECF No. 18; Agency’s Mot. Dismiss (“Agency’s Mot.”), ECF No. 31.

The Tribe opposes the motions, see Pl.’s Opp’n to State’s Mot., ECF No. 20; Pl.’s Opp’n to

Agency’s Mot., ECF No. 32, and also moves for an order to supplement the administrative

record, see Pl.’s Mot. Suppl. Admin. Rec., ECF No. 33. For the reasons set forth the below, the

Court grants State Defendants’ motion to dismiss, grants in part and denies in part the Agency’s

motion to dismiss, and denies the Tribe’s motion to supplement the administrative record.

II. BACKGROUND 1

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

1
This section draws in significant part from the Court’s explanation in Narragansett,
2022 WL 782410, at *1–4.

2
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 id. §§ 800.14–

800.16.

One program alternative to the Section 106 process is to develop a programmatic

agreement. 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), (f). 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 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 [ACHP].” Id.

§ 800.14(b)(2)(iii).

3
 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 [ACHP’s] comments and to take into account the effect of [their] undertakings.” (internal

quotations and citations omitted)).

B. Factual and Procedural History

The Tribe originally filed a version of this action in the U.S. District Court for the District

of Rhode Island before moving to transfer to this Court. Narragansett, 2022 WL 782410, at *1

n.1. According to the present Complaint, which includes a section titled “General Allegations”

that is substantially identical to that included in the pleadings in the prior action, FHWA has

provided substantial funding for the replacement of the I-95 Providence Viaduct Bridge. Compl

4
¶ 31. 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. ¶ 34.

To address the adverse effects, FHWA developed a programmatic agreement (the “first PA”) in

consultation with Narragansett, the Rhode Island State Historic Preservation Office, and the

Rhode Island Department of Transportation (“RIDOT”). Id. ¶ 36.

The first PA required “FHWA in coordination with RIDOT” to acquire and transfer

ownership of three parcels of land to the Tribe. Id. ¶ 40. The parcels were 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. ¶ 45. The transfer of ownership

was meant to mitigate the negative effects of the highway project. See id. ¶¶ 34–40.

Construction began on the highway project in June 2013, but ownership of the properties

had not yet been transferred to the Tribe. See id. ¶¶ 48–49. 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. See id. ¶ 49. But the

programmatic agreement contained no provision requiring the waiver of sovereign immunity.

See id. ¶ 47. The Tribe thus refused to agree to the condition and RIDOT refused to transfer the

properties absent a waiver. See id. ¶¶ 49–54. 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. See id. ¶¶ 53, 56.

ACHP issued comments on the proposed termination of the programmatic agreement on

May 3, 2017. See id. ¶ 57. ACHP stated that the project should not be delayed, that the Salt

5
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. See id. ¶ 59. After receiving and considering ACHP’s comments, FHWA

determined that it would reinitiate the normal Section 106 consultation process and draft a new

programmatic agreement. See id. ¶ 60. 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. See id. ¶ 61. This second programmatic agreement (the

“second PA”) was executed on September 18, 2019. See id. ¶ 62. Narragansett alleges that the

second PA was negotiated without consulting the Tribe and has “resulted in a complete failure to

address and mitigate the adverse effects of the Viaduct Project, including the destruction of the

site that has resulted from completion of the southbound lane of the Viaduct Project.” Id. ¶¶ 62,

65.

C. Prior Decision

A brief review of the Court’s opinion dismissing the previous action provides relevant

context for its consideration of the present motions. 2 In that action, after the Tribe added State

Defendants in an amended complaint, State Defendants moved to dismiss for lack of personal

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

2
As both parties move to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1),
the Court may “consider such materials outside the pleadings as it deems appropriate to resolve
the [jurisdiction] question[.]” Machie v. Chandonnet, 140 F. Supp. 3d 4, 9 (D.D.C. 2015)
(quoting Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), aff’d,
No. 00-7176, 2001 WL 135857 (D.C. Cir. Jan. 18, 2001)).

6
jurisdiction, and failure to state a claim. See Narragansett, 2022 WL 782410, at *3. The Court

granted the motion to dismiss without prejudice on the ground that it lacked personal jurisdiction

over State Defendants, and therefore did not reach the other asserted grounds for dismissal. Id.

at *5-6. The Court found that the Tribe had “not met its burden to demonstrate that this Court

has personal jurisdiction over the State Defendants” based on its “lack of citation to any facts or

authority,” id. at 6, but it also observed that “State Defendants’ contacts with the District seem to

consist of negotiations with the federal government over the programmatic agreement and

Section 106 process,” id. at *6 n.5. While the Tribe did not allege enough to permit a conclusive

determination, the Court expressed skepticism that these contacts could suffice to create personal

jurisdiction over State Defendants because “these negotiations may fall under the ‘government

contacts’ exception to the District’s long-arm statute.” Id. (citing Alkanani v. Aegis Def. Servs.,

LLC, 976 F. Supp. 2d 13, 25 (D.D.C. 2014)).

The Agency also moved to dismiss for lack of subject jurisdiction, arguing that the Tribe

lacked standing because “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.” Id. at *6. Because the Tribe

“barely addresse[d] standing in its opposition,” and “[g]iven the State Defendants’ role in the

relevant conduct and Narragansett’s failure to squarely address the Agency’s arguments,” as well

as “the case law’s guidance about the difficulty of showing standing when a third party is

involved,” the Court found that the Tribe had not “sufficiently demonstrated standing” and

granted the Agency’s motion to dismiss without prejudice. Id. at *7-8.

7
 III. LEGAL STANDARDS

A. Personal Jurisdiction

The plaintiff bears the burden of establishing that a court has personal jurisdiction over

each defendant. See 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.” United States v. Philip Morris Inc., 116 F. Supp. 2d 116,

120 n.4 (D.D.C. 2000) (citation omitted).

“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) (cleaned up). “This

8
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). The District of Columbia’s

long-arm statute provides, in relevant part, that personal jurisdiction may be exercised “over a

person, who acts directly or by an agent, as to a claim for relief arising from the person’s . . .

transacting any business in the District of Columbia.” D.C. Code § 13-423(a)(1).

B. Standing

Courts address subject-matter jurisdiction as a “threshold matter, ” Steel Co. v. Citizens

for a Better Env’t, 523 U.S. 83, 94–95 (1998), and “[t]he burden of establishing any

jurisdictional facts to support the exercise of the subject matter jurisdiction rests on the plaintiff.”

CFA Inst. v. Andre, 74 F. Supp. 3d 462, 465 (D.D.C. 2014); see also McBride v. Mnuchin, No.

19-cv-60, 2019 WL 3323412, at *2 (D.D.C. July 24, 2019) (“Before addressing the merits of a

case, a court must confirm that it has subject matter jurisdiction.”) (internal citation omitted).

Standing is “an essential and unchanging part of the case-or-controversy requirement of Article

III,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992), and therefore is “a necessary ‘predicate

to any exercise of [Article III courts’] jurisdiction.’” Dominguez v. UAL Corp., 666 F.3d 1359,

1361 (D.D.C. 2012) (quoting Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)

(en banc)). Accordingly, “[e]very plaintiff in federal court bears the burden of establishing the

three elements that make up the ‘irreducible constitutional minimum’ of Article III standing:

injury-in-fact, causation, and redressability.” Id. at 1362 (internal citation omitted). Standing is

“not dispensed in gross;” rather, Plaintiffs must show standing as to each claim. Davis v. FEC,

554 U.S. 724, 734 (2008) (internal quotation omitted).

9
 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 of the 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).

IV. ANALYSIS

A. State Defendants’ Motion to Dismiss

The Complaint names the “State of Rhode Island and agencies including The Rhode

Island Department of Transportation, and Claire Richards, individually,” as State Defendants.

Compl. at 1. Claire Richards is Executive Counsel for the Governor of Rhode Island. See id.;

Richards Aff. at 2, ECF No. 18-3. State Defendants move to dismiss for lack of personal

jurisdiction, for improper venue, for improper service of process, and for failure to state a claim.

See generally State’s Mot. Because the Court finds that it lacks personal jurisdiction over State

Defendants, it does not reach the other asserted grounds for dismissal.

10
 1. General Jurisdiction

As an initial matter, State Defendants argue that it is “beyond peradventure that there is

no general personal jurisdiction over the State Defendants.” State’s Mot. at 11. State

Defendants point to the facts that they do not “reside in the District of Columbia and there is no

basis for concluding that the District of Columbia is ‘home’ for any office, department, or

employee of the State of Rhode Island.” Id. (citing Richards Aff.). The Tribe does not contest

this point. Pl.’s Opp’n to State’s Mot. at 4 (“Plaintiff’s argument is simply that while state

entities are generally not subject to personal jurisdiction, the actions of an individual employee,

attorney Richards can be subject to personal jurisdiction based on minimum contacts . . . .”).

Accordingly, the Court finds that there is no general personal jurisdiction over State Defendants.

2. Specific Jurisdiction as to Rhode Island and RIDOT

Turning to specific jurisdiction, State Defendants first point out that “Plaintiff does not

make any assertions at all concerning any contacts between the State of Rhode Island, its

agencies or RIDOT.” Pl.’s Opp’n to State’s Mot. at 13. And the Tribe concedes that its

argument for personal jurisdiction relies entirely on allegations concerning “the actions of an

individual employee, attorney Richards.” Pl.’s Opp’n to State’s Mot. at 4; see also id. at 8

(“Plaintiff’s Complaint asserts specific personal jurisdiction over attorney Claire Richards in the

District of Columbia . . . .”). The Court therefore has no basis on which to exercise personal

jurisdiction over the State of Rhode Island or RIDOT. 3

3
RIDOT is the only state agency named as a defendant in the complaint, but to the extent
the language of the Complaint implicates any other Rhode Island agency the same holding
obtains.

11
 3. Specific Jurisdiction as to Claire Richards

With respect to Ms. Richards, State Defendants argue (1) that the Complaint does not

allege “connections with the District of Columbia sufficient to meet any of the enumerated

provisions in the District of Columbia’s long-arm statute;” (2) that “there are no minimum

contacts that would satisfy due process,” and (3) that, regardless, the “activities alleged in the

Complaint are precisely the type of activity protected by the government contacts exemption and

cannot serve as the basis for personal jurisdiction.” State’s Mot. at 12–13, 16.

Taking the latter first, the Court agrees that the government contacts exception to the

District of Columbia’s long-arm statute is operative here. “[W]hile contract negotiations

ordinarily constitute business transactions upon which personal jurisdiction may be based for the

purpose of D.C.’s long-arm statute, there is a settled ‘government contacts’ exception to this

general rule.” Alkanani, 976 F. Supp. at 25. Under this exception, “a nonresident’s entry into

the District of Columbia for ‘the purpose of contacting federal government agencies cannot serve

as a basis for personal jurisdiction.’” Id. (quoting Savage v. Bioport, Inc., 460 F. Supp. 2d 55, 62

(D.D.C. 2006); see also United States v. Ferrara, 54 F.3d 825, 831 (D.C. Cir. 1995) (“[C]ontact

with a federal instrumentality located in the District will not give rise to personal jurisdiction.”).

The government contacts exception “finds its source in the unique character of the District as the

seat of national government and in the correlative need for unfettered access to federal

departments and agencies for the entire national citizenry.” Env’t Rsch. Int’l, Inc. v. Lockwood

Greene Eng’rs, Inc., 355 A.2d 808, 813 (D.C. 1976); id. (“To permit our local courts to assert

personal jurisdiction over nonresidents whose sole contact with the District consists of dealing

with a federal instrumentality not only would pose a threat to free public participation in

12
government, but also would threaten to convert the District of Columbia into a national judicial

forum.”).

By the Tribe’s own description, and consistent with the Court’s suspicion in its opinion

dismissing the prior action, see Narragansett, 2022 WL 782410, at *6 n.5, Ms. Richards’s

alleged contacts with D.C. are comprised entirely of her work on the programmatic agreements.

See Pl.’s Opp’n to State’s Mot. at 4 (“[T]he actions of an individual employee, attorney Richards

can be subject to personal jurisdiction based on minimum contacts with the [Agency] as a

fiduciary and her collusion with the [Agency] to violate [the ACHP regulations].”); id. at 14–15

(explaining that the basis for personal jurisdiction consists of “communications and the specific

actions of attorney Claire Richards [that were] part of the decision-making process of the

FHWA”); id. at 15 (“Her activities . . . represented the State and their interests in the transferring

or not transferring properties to the federal Government, as part of the mitigation measure

required to [sic] Section 106 process. . . . On behalf of the State, she was transacting business.”).

Nonetheless, the Tribe presents two arguments as to why the government contacts

exception should not apply. First, the Tribe argues that Ms. Richards’s “business with the

[Agency] was to assert the state’s legal position with regards to the compliance with the NHPA,

not to obtain a contract or grant for Highway program funding.” Pl.’s Opp’n to State’s Mot. at

15. That Ms. Richards was merely making assertions and not negotiating to receive anything is

dubious and contradicted elsewhere in the Tribe’s submission and the Complaint. See id. at 17

(“Her goal was to receive a decision from the FWHA that maintained state control over all the

mitigation measures of the Section 106 process under the NHPA.”); Compl. ¶ 17 (“Claire

Richards . . . was in contact with the FHW, including agency personnel in Washington D.C. The

communication involved negotiations about the first and second PA with the Tribe, FHWA, and

13
the State of Rhode Island.”). Regardless, the distinction is irrelevant, as the government contacts

exception applies well beyond the boundaries of contract or grant negotiation, see, e.g., App

Dynamic ehf v. Vignisson, 87 F. Supp. 3d 322, 327 (D.D.C. 2015) (applying exception to

copyright registration); Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 44 (D.D.C. 2003)

(applying exception to lobbying activity); Mallinckrodt Med., Inc. v. Sonus Pharm., Inc., 989 F.

Supp. 265, 271 (D.D.C. 1998) (applying exception to filing suit against an agency after denial of

an application to approve products); Cellutech, Inc. v. Centennial Cellular Corp., 871 F. Supp.

46, 50 (D.D.C. 1994) (applying exception to making filings with federal agencies), in keeping

with its broad goal to “safeguard free public participation in government.” Sickle v. Torres

Advanced Enter. Sols., LLC, No. 11-2224, 2020 WL 5530357, at *9 (D.D.C. Sept. 14, 2020)

(citation omitted).

Second, the Tribe points to the decision of a panel of the D.C. Court of Appeals in Rose

v. Silver, 394 A.2d 1368 (D.C. 1978), which explained that “the First Amendment provides the

only principled basis” for applying the government contacts exception. Id. at 1374.

Accordingly, the Tribe appears to argue that, because Ms. Richards’s “contacts with the FHWA

attorney do not raise first amendment concerns,” the exception does not apply here. Pl.’s Opp’n

to State’s Mot. at 18. However, the D.C. Circuit has cautioned against applying the Rose panel’s

observation as a limitation on the en banc D.C. Court of Appeals’ “holding against governmental

contacts as a basis for personal jurisdiction in Environmental Research.” Naartex Consulting

Corp. v. Watt, 722 F.2d 779, 786 (D.C. Cir. 1983); see also Shaheen v. Smith, 994 F. Supp. 2d

77, 85 n.7 (D.D.C. 2013) (explaining that “to the extent the Rose ruling causes tension with

14
[Environmental] Research, it is in dicta only”). 4 The D.C. Court Appeals has since noted its

“conflicting messages about the conceptual basis for the [government contacts] doctrine,” but

declined to resolve the conflict one way or the other. Akhmetshin v. Browder, 275 A.3d 290, 293

(D.C. 2022). Thus, as “[i]t is by no means established that the government contacts rule is in fact

limited to activities that implicate the First Amendment,” Robo-Team NA, Inc. v. Endeavor

Robotics, 313 F. Supp. 3d 19, 25 (D.D.C. 2018), the Court follows the D.C. Circuit’s guidance

against reading Rose to apply a categorical First Amendment limitation on the government

contacts exception. See Akhmestshin, 275 A.3d at 294 (noting, without criticizing, the D.C.

Circuit’s decision in Naartex Consulting to apply the “government contacts exception without

considering whether the exercise of jurisdiction based on those contacts would violate

defendants’ First Amendment rights,” notwithstanding Rose). In turn, because the only contacts

between Ms. Richards and D.C. alleged by the Tribe fall squarely within the government

contacts exception, they do not provide a basis for the Court to exercise personal jurisdiction

over her.

4
As indicated supra at 12, Environmental Research articulated the general rule that local
courts may not “assert personal jurisdiction over nonresidents whose sole contact with the
District consists of dealing with a federal instrumentality.” Env’t Rsch. Int’l, 355 A.2d at 813.
The D.C. Circuit, citing a concurrence from the D.C. Court of Appeals’ denial of a petition for
rehearing en banc in Rose, went as far as to suggest that the Rose panel would have been without
authority to materially alter the en banc Environmental Research court’s decision. See Naartex
Consulting Corp., 722 F.2d at 786 (explaining that “a panel of the District of Columbia Court of
Appeals ‘is prohibited from issuing an opinion which conflicts materially with a prior decision of
[the full] court as this may be done only by the court sitting en banc’” (quoting Rose v. Silver,
398 A.2d 787, 787 (D.C. 1979)); see also Rose, 398 A.2d at 787 (Gallagher, J., concurring)
(“The opinion in this case expressly disclaims that it conflicts with our prior en banc decision in
[Environmental Research].”).

15
 B. Agency’s Motion to Dismiss

The Agency moves to dismiss for lack of standing. See Agency’s Mot. at 1. Although

the Complaint includes only one count for violation of the APA, it alleges that the agency

committed two discrete illegal actions: (1) terminating the first PA; and (2) executing the second

PA. See Compl. ¶ 1 (“The termination of the first PA . . . was arbitrary and capricious. . . . The

attempt to form a second PA without tribal consultation by the FHWA was arbitrary and

capricious agency action.”); see also id. ¶¶ 6, 69, 72. The Court addresses the Tribe’s standing

as to each claim in turn.

1. Termination of First PA

The Tribe alleges two injuries from the Agency’s termination of the first PA. Compl. ¶ 8

(explaining the Tribe’s “two-pronged injury”). First, the Tribe alleges that the termination

“frustrated reliance interests the Tribe had in properties that were part of the first PA” to the tune

of $896,250. Id. Second, the Tribe alleges that it “suffered procedural injury-in-fact because of

the first PA due to the failure of the FHWA to follow regulations under the Section 106 process,”

specifically the failure to “provide a proper summary of its reasoning for the termination of the

first PA (to all consulting parties and the public) that satisfied the requirements of 36 C.F.R.

§ 800.7(c)(4).” Id. ¶ 9. The Agency argues that the Tribe “fails to demonstrate either causation

or redressability” as to these injuries. Agency’s Mot. at 8. Specifically, as it did in the prior

action, the Agency argues that “[a]ny injury to the Tribe is traceable only to Rhode Island.” Id.;

see Narragansett, 2022 WL 782410, at *6.

To establish standing, “the injury has to 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.” Lujan v. Defs. of Wildlife, 504 U.S. at 560 (citation and internal alterations omitted).

16
As such, “[w]hen 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.”

Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004), abrogation

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

that situation, “it becomes the burden of the plaintiff to adduce facts showing that [the third

party’s] choices have been or will be made in such manner as to produce causation and permit

redressability of injury.” Id.

The Agency argues that “Rhode Island refused to convey the disputed parcels to the Tribe

unless the Tribe waived sovereign immunity” and that the “agreement’s termination was simply

a concession to the reality that Rhode Island was unwilling to convey the parcels to the Tribe

free and clear.” Agency’s Mot. at 8–9. It also emphasizes, with citation to attached letters from

the Agency to Rhode Island, that starting on September 1, 2016, the Agency attempted to compel

Rhode Island to convey the parcels in accordance with the first PA by “inform[ing] Rhode Island

that it would withhold all project funds to the state due to its defiance of the agreement.”

Agency’s Mot. at 4; see id. Exs. A–B, ECF No. 31-1. The agency terminated the first PA

approximately four and a half months later, on January 19, 2017. Compl. ¶ 56.

The Tribe responds not by disputing that Rhode Island refused to convey the parcels

without a waiver of sovereign immunity, but rather by arguing that the Agency should have done

more to compel it to do so. Specifically, while the Tribe acknowledges that “the FHWA

withheld funding on the Viaduct Project when the State refused to honor the executed

agreement,” it argues that the Agency did not “wait[] a sufficient time to see the result of their

17
threat.” Pl.’s Opp’n to Agency’s Mot. at 13. 5 The Tribe does not identify what length of

withholding would have been “sufficient” or offer any support for its assertion that some longer

duration suddenly would have born fruit. This “‘unadorned speculation’ as to the existence of a

relationship between the challenged government action and the third-party conduct will not

suffice to invoke the federal judicial power.” Scenic Am., Inc. v. U.S. Dep’t of Transp., 836 F.3d

42, 50 (D.C. Cir. 2016) (quoting Na’l Wrestling, 366 F.3d at 938). 6 The Tribe has not carried its

burden to show that the termination of the first PA was caused by the Agency and not the

independent actions of Rhode Island.

2. Execution of Second PA

With respect to the execution of the Second PA, the Tribe claims injury from the

Agency’s failure to consult it pursuant to 36 C.F.R. § 800.14(f). See Compl. ¶ 10. It explains

that this procedural injury caused harm to the Tribe’s concrete interests in the form of

5
The Tribe also makes cryptic references to the idea that the Agency should have simply
taken the properties through “condemnation.” Pl.’s Opp’n to Agency’s Mot. at 5, 7, 9. This
issue is not raised in the Complaint and the Tribe offers no supporting factual allegations, so it
has not met its burden to establish causation. See Compl. ¶ 13 (claiming that the Agency should
have continued to “withhold[] funding from the state” but making no mention of condemnation).
And as to redressability, the Agency cites to substantial authority for the proposition that “an
agency may condemn property only if authorized to do so by Congress.” Agency’s Mot. at 4
(collecting cases).
6
Moreover, with respect to the Tribe’s claimed procedural injury, it has not met its
burden to show redressability. While “[c]laims for procedural violations . . . receive a ‘relaxed
redressability requirement,’” the Tribe still has the burden to show that “correcting the alleged
procedural violation could still change the substantive outcome in the plaintiff’s favor[.]”
Hawkins v. Haaland, 991 F.3d 216, 225 (D.C. Cir. 2021) (cleaned up). The Tribe offers no basis
on which the Court could conclude that ordering a “proper summary” of the Agency’s decision
to terminate the first PA could, at this point, redress the alleged injury to its concrete interests
from the termination. See Narragansett Indian Tribal Historic Preservation Off. v. FERC, 949
F.3d 8, 13 (D.C. Cir. 2020) (“[F]ixing the alleged defect in the Commission’s regulatory
procedures could not possibly prevent or mitigate the harm to the Narragansett Tribe’s cultural or
religious interests.”); W. Coal Traffic League v. Surface Transp. Bd., 998 F.3d 945, 954 (D.C.
Cir. 2021) (“Petitioner must, at least, link a permissible court order to its concrete injury . . . .”).

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“unmitigated damage to the Viaduct properties.” Id. ¶ 11. Consultation, the Tribe alleges,

“could result in alternative mitigation measures that would adequately address harm to the

historic, tribal properties.” Id. ¶ 12. The Agency, in a terse three-sentence argument that the

Tribe lacks standing as to the execution of the second PA, claims that “such bald and conclusory

assertions do not meet the Tribe’s burden to show that consultation would have caused the

agency to adopt alternative mitigation measures that would have adequately mitigated the harm

to the historic properties, or that reopening the new agreement for consultation would adequately

mitigate such harm.” Agency’s Mot. at 10–11. 7

The Agency misstates the Tribe’s burden. To establish causation for purposes of

standing based on a procedural injury, it is well-established that “[t]he plaintiff is not required to

‘show that but for the alleged procedural deficiency the agency would have reached a different

substantive result.’” Hawkins v. Haaland, 991 F.3d 216, 224 (D.C. Cir. 2021) (quoting

WildEarth Guardians v. Jewell, 738 F.3d 298, 306 (D.C. Cir. 2013)). Rather, “[a]ll that is

necessary is to show that the procedural step was connected to the substantive result.” Id. at 224-

25 (citation omitted). Similarly, with respect to the redressability prong of standing, “[c]laims

for procedural violations . . . receive a ‘relaxed redressability requirement’ in which the plaintiff

7
The Agency’s reply in support of its motion also raises for the first time an argument
the Tribe’s interests fall outside the zone of interests protected by Section 106. It construes the
Complaint as “argu[ing] that the Agency should have negotiated measures of greater private
value to the Tribe.” Agency’s Reply and Opp’n at 5, ECF No. 35. From there, it argues that
“enriching the Tribe is not a proper purpose of the Section 106 process,” so the Tribe “has no
‘legally protected interest’ in a mitigation measure’s private’ value to it that can support an
injury in fact.” Id. at 5–6. But the agency only moves to dismiss “for lack of subject-matter
jurisdiction,” Agency’s Mot. at 1, and “the zone of interests test is a merits issue” that “does not
implicate subject-matter jurisdiction,” CSL Plasma, Inc. v. U.S. Customs and Border Protection,
33 F.4th 584, 588 (D.C. Cir. 2022). See Agency’s Reply and Opp’n at 6 (citing Gunpowder
Riverkeeper v. FERC, 807 F.3d 267, 274 (D.C. Cir. 2015) without noting the Circuit’s
explanation on the previous page that the zone of interest test is “[i]n addition to constitutional
standing” and explores whether the plaintiff states a “valid cause of action”).

19
need only show that ‘correcting the alleged procedural violation could still change the

substantive outcome in the [plaintiff’s] favor’ not ‘that it would effect such a change.’” Id.

(quoting Narragansett Indian Tribe Historic Pres. Off. v. FERC, 949 F.3d 8, 13 (D.C. Cir.

2020)).

The Tribe pleads enough here. It adequately alleges a procedural injury in the form of

the Agency’s failure to engage in the required consultation with the Tribe under 36 C.F.R.

§ 800.14(f) in developing the second PA. See Compl. ¶¶ 10–12. It adequately alleges that the

procedural injury is “tethered to some concrete interest adversely affected by the procedural

deprivation,” WildEarth Guardians, 738 F.3d at 305; namely, harm from improper mitigation to

“historic, tribal properties.” Compl. ¶ 12; cf. WildEarth Guardians, 738 F.3d at 305–06 (finding

environmental plaintiffs’ alleged procedural injury from a deficient environmental impact report

concerning a land lease project sufficiently tethered to “concrete aesthetic and recreational

interests” in the land subject to increased “local air, water, and land pollution” from planned

development pursuant to the leases). It adequately alleges that the Agency’s alleged failure to

consult with the Tribe was connected to that harm. See Compl.¶ 11 (“In FHWA’s attempt to

create a second PA, the omission of the Tribe as a stakeholder and FHWA’s failure to adequately

consult with the Tribe resulted in unmitigated damage to the Viaduct properties affecting

concrete interests of the Tribe.”); cf. Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008)

(explaining that plaintiffs may establish standing based on a procedural injury if they live “near

where the federal action would occur and would feel the environmental effects of that action if it

went forward”); Lujan, 504 U.S. at 572 n.7 (“[O]ne living adjacent to the site for proposed

construction of a federally licensed dam has standing to challenge the licensing agency’s failure

to prepare an environmental impact statement, even though he cannot establish with any

20
certainty that the statement will cause the license to be withheld or altered”). Finally, the Tribe

adequately alleges that correcting the alleged failure to consult with the Tribe could change the

substance of the second PA’s mitigation measures. See Compl. ¶ 12 (“If the Tribe were

adequately consulted on the second PA, it could result in alternative mitigation measures that

would adequately address harm to the historic, tribal properties.”); cf. Wildearth Guardians, 738

F.3d at 306 (“Vacatur of the [agency] order would redress [plaintiffs’] injuries because, if the

[agency] is required to adequately consider each environmental concern, it could change its mind

about authorizing the lease offering.”); Lemon, 514 F.3d at 1315 (“[I]f the Secretary had taken

into account the effect of the new . . . redevelopment plan he might have placed conditions on the

transfer of the land . . . that might have ameliorated what plaintiffs see as damage to an historic

site they visit and enjoy”). 8 The Tribe has standing to pursue its claim as to the execution of the

second PA.

C. Motion to Compel Supplement to Administrative Record

The Tribe moves to compel the Agency to supplement the administrative record. See

generally Pl.’s Mot. Suppl. Admin. Rec. The motion is long and difficult to follow, but the

8
While the Agency states that the “viaduct project’s northbound lane opened to traffic on
October 2022,” it does not argue that additional mitigation measures would be impossible such
that consultation with the Tribe could not still address the substantive harm alleged. Instead, the
Agency argues that the Tribe’s assertion that consultation could have resulted in better mitigation
is too speculative because the Tribe did not “even attempt to identify what those alternative
mitigation measures might have been.” Agency’s Mot. at 10; see also Agency’s Reply at 2, ECF
No. 35 (“[The Tribe’s] argument that consulting it in forming a new agreement would have
resulted (or that reopening the new agreement for consultation would result) in greater mitigation
of harm to the historic properties is speculative and conclusory.”). But again, the Tribe need not
show that consultation would result in a better outcome, only that it could. Accordingly, as the
Court does not understand the Agency to imply a closed universe in which the mitigation
measures adopted in the second PA are the only theoretically plausible measures such that
reopening consultation with the Tribe could not possibly affect the outcome, the persuasiveness
of the Tribe’s arguments for or against a particular measure is irrelevant.

21
Court interprets it to press four main arguments: (1) the administrative record compiled by the

Agency should be presumed incomplete based on its limited size, see id. at 9; (2) the

administrative record was inflated by duplicates intentionally included by the Agency to give the

appearance of a more complete record, see id. at 14, 19; (3) the fact that the Tribe identified, and

the Agency subsequently produced, certain records omitted from the administrative record shows

that the Agency is acting in bad faith, see id. at 15–18; and (4) the Agency did not sufficiently

explain redactions applied to eight documents, see id. at 8.

“[T]he designation of the Administrative Record, like any established administrative

procedure, is entitled to a presumption of administrative regularity.” Oceana, Inc. v. Ross, 920

F.3d 855, 865 (D.C. Cir. 2019) (citation omitted). Accordingly, courts “do not allow parties to

supplement the record ‘unless they can demonstrate unusual circumstances justifying a departure

from this general rule.” City of Dania Beach v. F.A.A., 628 F.3d 581, 590 (D.C. Cir. 2010). The

Court may order supplementation “[i]f for some reason, materials that were actually a part of the

agency’s record were not properly included, whether by design or accident,” but it is the

movant’s burden to “overcome [the] strong presumption of regularity by putting forth concrete

evidence that the documents it seeks to ‘add’ to the record were actually before the

decisionmakers.” The Cape Hatteras Access Preserv. Alliance v. U.S. Dep’t of Interior, 667 F.

Supp. 2d 111, 114 (D.D.C. 2009); see id. at 112 (“A court that orders an administrative agency to

supplement the record of its decision is a rare bird.”).

The Tribe fails to carry that heavy burden here. As to its first argument, that the Court

should presume the administrative record incomplete “[o]n its face” based on the Tribe’s

expectation that “a $200 million highway project and a prolonged negotiation over the

termination of a programmatic agreement that lasted nearly a decade” should have a more

22
extensive record, Pl.’s Mot. Suppl. Admin. Rec. at 9, this speculative assertion does not amount

to concrete evidence sufficient to defeat the strong presumption of regularity. See Am. Soc’y for

Prevention of Cruelty to Animals v. Animal and Plant Health Inspection Serv., No. 21-cv-1600,

2023 WL 3073609, at *3 (“Simply asserting that [the agency] ‘necessarily considered’ the

information sought does not, on its own, provide any concrete, non-speculative evidence that it

did so.”). As to the Tribe’s second argument, that the administrative record was inflated by

duplicates, the Agency explains that “nothing requires the Agency to cull such duplicates” and

points out that some redundancy is natural, as “if a document appears at multiple stages of

agency proceedings, then removing the later copies can compromise the record’s integrity.”

Agency’s Reply and Opp’n at 11. As the Tribe cites to no authority for the proposition that an

Agency is required to remove duplicates from the record and points to no concrete evidence to

overcome the presumption that any duplicates were properly included to reflect the Agency’s

consideration, the Court agrees with the Agency that the appearance of duplicates in the record

does not demonstrate either that the administrative record is incomplete or that the Agency acted

in bad faith. 9

The Tribe’s third argument, that certain documents initially were omitted from the

administrative record, has at least some specificity. The Tribe explains that, based on responses

to three document requests it sent to Rhode Island, it identified “fourteen documents that

evidenced interaction with FHWA and ACHP that were also excluded from the Defendant’s

Administrative record[.]” Pl.’s Mot. Suppl. Admin. Rec. at 14. But the Agency explains, with

citation to the certified list of the contents of the administrative record, that it “added all of these

9
This finding is reinforced by the fact that the duplicates apparently only amount to 70
records. See Pl.’s Mot. Suppl. Admin. Rec. at 7.

23
materials to the record as soon as the Tribe pointed out their omission” and “well before the

Tribe moved to compel.” Agency’s Reply and Opp’n at 9 (citing the materials from the Certified

List, ECF No. 30). The Tribe concedes that the relevant documents were added, Reply Supp.

Pl.’s Mot. Suppl. Admin. Rec. at 4–5, ECF No. 37, but disputes that the Agency was prompt or

cooperative in doing so and argues by insinuation that the fact of their addition amounts to

concrete evidence that the record is incomplete, see id. at 22 (referring the omission of the

documents as a “plot” that “could allow the FHWA to hide its reasoning and apparent agreement

with the state that the adverse effects to the properties could be mitigated by a second PA

without the tribe as a stakeholder or consulting party”). 10 But the mere fact that the Agency

voluntarily supplemented the record with additional documents provides no occasion to question

its good faith or to presume the record incomplete. See Sara Lee Corp. v. Am. Bakers Ass’n, 252

F.R.D. 31, 34 (D.D.C. 2008) (“Plaintiff’s implication that because the [agency] has already

agreed to supplement the record with additional documents, including some that were disclosed

only as a result of plaintiff’s FOIA request, other relevant documents that should be added to the

record must exist is simply not enough.”); Pac. Shores Subdivision, Cal. Water Dist. v. U.S.

Army Corps of Eng’rs, 448 F. Supp. 2d 1, 6 (D.D.C. 2006) (finding that the Corps’ voluntary

agreement to supplement the record with three of the nineteen documents requested by the

plaintiff was sufficient, as the plaintiff “cannot meet its burden simply by asserting that the [rest

of the] documents are relevant, were before or in front of the Corps at the time it made its

10
The Tribe asserts that the Agency failed to provide PDFs of the files, so it could not
verify their contents at the time it filed its motion. See Pl.’s Mot. Suppl. Admin. Rec. at 14. The
Agency disputes that, and the Tribe’s own submission also seems to contain indications to the
contrary. See Agency’s Reply and Opp’n at 10; Pl.’s Mot. Suppl. Admin. Rec. at 15 (discussing
the substance of the “excluded” documents). Regardless, there is no dispute that the Tribe is in
possession of the records now, so the dispute over timing is immaterial.

24
decision, and were inadequately considered”); cf. Pub. Citizen v. Dep’t of State, 276 F.3d 634,

645 (D.C. Cir. 2002) (explaining, in the FOIA context, that “we have previously declined to find

subsequent disclosure as evidence of bad faith”).

Finally, the Tribe’s fourth argument, that the Agency did not sufficiently explain

redactions to eight documents, is similarly unsuccessful. The Agency explains that these

materials were redacted “under the attorney-client and deliberative process privileges.”

Agency’s Reply and Opp’n at 12. While the Tribe sees the Agency’s failure to prospectively

provide explanations justifying these redactions as evidence of bad faith, “privileged and

deliberative materials are not part of the administrative record as a matter of law[.]” Stand up for

Cal.! v. U.S. Dep’t of Interior, 71 F. Supp. 3d 109, 123 (D.D.C. 2014). Accordingly, “to obtain a

log of privileged and deliberative materials excluded from the administrative record, plaintiffs

must overcome, with clear evidence, the presumption of regularity in the agency proceedings by

showing bad faith or other exceptional circumstances.” Id. As the Tribe points to no evidence to

overcome the presumption of regularity as to these redactions beyond their mere existence, it has

not overcome the presumption of regularity. See Nat’l Ass’n of Chain Drug Stores v. U.S. Dep’t

of Health and Human Servs., 631 F. Supp. 2d 23, 28 (D.D.C. 2009) (“Since the agency is entitled

to a presumption that it has properly designated the documents, and no bad faith or improper

motive has been alleged or proven, defendants are not required to provide plaintiffs with a

privilege log detailing the documents.”). The Tribe has not established that it is entitled to an

order compelling the Agency to supplement the administrative record.

V. CONCLUSION

For the foregoing reasons, State Defendants’ Motion to Dismiss (ECF No. 18) is

GRANTED, the Agency’s Motion to Dismiss (ECF No. 31) is GRANTED IN PART AND

25
DENIED IN PART, and the Tribe’s Motion to Supplement the Administrative Record (ECF

No. 33) is DENIED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: July 27, 2023 RUDOLPH CONTRERAS
United States District Judge

26