Narragansett Indian Tribe v. Warwick Sewer Authority

United States Court of Appeals
For the First Circuit

No. 02-2672

NARRAGANSETT INDIAN TRIBE,

Plaintiff, Appellant,

v.

WARWICK SEWER AUTHORITY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, Senior U.S. District Judge]

Before

Lynch, Lipez, and Howard, Circuit Judges.

Douglas J. Luckerman, with whom John F. Killoy, Jr. was
on brief for appellant.

Ian C. Ridlon, with whom Jeffrey S. Brenner and Nixon
Peabody LLP were on brief for appellee.

July 3, 2003
 LYNCH, Circuit Judge. The Narragansett Indian Tribe

appeals from the district court's denial of a preliminary injunction

against the Warwick Sewer Authority. The Tribe claims that the

Authority is proceeding with a sewer construction project which

risks desecration of ancestral burial sites. The Tribe argues that

the Authority failed to consult adequately with the Tribe about the

project, as required by § 106 of the National Historic Preservation

Act (NHPA), 16 U.S.C. § 470f (2000), and its attendant regulations,

36 C.F.R. Pt. 800 (2002).

The district court denied the preliminary injunction. We

affirm, because we find that the Tribe falls far short of the

standards for a preliminary injunction. Indeed, it appears that the

Authority has acted responsibly to comply with the NHPA and to avoid

any adverse impact on important cultural artifacts.

I.

The district court held an evidentiary hearing on the

preliminary injunction motion on November 15, 2002. The following

facts are drawn principally from evidence presented there.

The Authority has undertaken a construction project to

link the eastern portion of Warwick, Rhode Island, to the city's

existing sewer system, requiring some 2.5 miles of sewer line. The

parties agree that the entire project must comply with § 106 of the

NHPA as a condition of federal funding it receives. Section 106 and

its implementing regulations, discussed in greater detail below,

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require sponsors of federally funded undertakings to consider their

impact on historically or archaeologically important areas. The

regulations also require consultation with a state-designated

historic preservation officer and, in some circumstances, with

affected Indian tribes. In early 2000, the Authority retained

Public Archaeology Laboratory, Inc. (PAL), a nonprofit consulting

group founded by five archaeologists formerly associated with Brown

University, to assist in ensuring the sewer project's compliance

with these mandates.

Alan Leveillee, a registered professional archaeologist

and co-founder of PAL, conducted an initial assessment survey of the

project. Leveillee completed a preliminary report based on this

investigation. He determined that most of the proposed sewer lines

would run under existing roads in highly developed suburban areas,

so that excavation was unlikely to encounter any remaining

archaeological material of significance that had not already been

disturbed. For these sections of the project, the report concluded

that it would be sufficient to have archaeologists train

construction supervisors, conduct periodic field checks, and remain

on call in case unexpected materials of potential historical value

were encountered.

However, the report noted that several segments of the

project had potentially greater archaeological sensitivity. Of

particular relevance to this litigation, Leveillee identified a

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stretch of approximately 1,350 feet near the intersection of West

Shore Road and Sandy Lane, adjacent to Buckeye Brook. In this area,

the proposed sewer route ran through a relatively undisturbed

wetlands area rather than under an existing roadway. Because of

this difference, and the fact that Indian artifacts are often found

along watercourses close to Narragansett Bay, such as Buckeye Brook,

the report recommended that archaeologists stay on site to monitor

all construction in this area.

On January 10, 2001, Leveillee mailed copies of the

preliminary report both to Rhode Island's state historic

preservation officer (known under § 106 as the "SHPO") and to the

Tribe's historic preservation officer (the "THPO"). His cover

letters stated: "Please provide any comments or concerns you may

have. If you require additional information, please do not hesitate

to call me at your convenience." The Tribe never responded to this

letter. In contrast, the SHPO wrote back to Leveillee on January

19, and sent copies of its response to the THPO, the Authority, and

the project's chief contractors. The SHPO concurred in most of

Leveillee's conclusions and proposals, but recommended that shovel

test pits should be excavated in two of the more sensitive areas,

including the one near Buckeye Brook, to "determine the presence or

absence of cultural material."

PAL complied with the SHPO's suggestion in the next phase

of its inquiries, excavating nineteen test pits in the Buckeye Brook

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area. South of Buckeye Brook, this "intensive archaeological

survey" found remains of an agricultural homestead that had been

inhabited in the eighteenth and nineteenth centuries. PAL reported

that "Native American cultural materials . . . were recovered in low

densities . . . and represent incidental incursions," indicating

only "limited occupation" of the area by Native Americans. The test

excavations uncovered 225 bone fragments; these were analyzed in the

lab and all were found to be animal bones, most likely from the

homestead's food wastes. Leveillee and other PAL archaeologists

prepared a detailed technical report elaborating on these findings.

Leveillee testified that further investigation would be required to

determine the archaeological significance of the homestead. The

report recommended instead that the sewer should be rerouted to

avoid the homestead site entirely.

The technical report was again sent to both the SHPO and

the THPO in March 2002. The SHPO concurred in the report's

recommendations. The Tribe again did not respond. Based on the

suggestion made by PAL and the SHPO, the Authority altered the sewer

route in April 2002 to avoid the undisturbed area south of Buckeye

Brook where the homestead site lies. The new underground route runs

south down West Shore Road (which is also state highway Route 117),

rather than alongside it, and then turns at the intersection to

proceed west down Sandy Lane. West Shore Road was originally built

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in the early twentieth century and there has been further

construction on it several times since.

Although the Tribe did not comment on either of PAL's

reports, testimony at the hearing by both Leveillee and the Tribe's

deputy THPO, Douglas Harris, indicated that the Tribe did have

contact with the Authority and PAL about the sewer project in both

2001 and 2002. According to Harris, this included a meeting with

the executive director of the Authority early in the consultation

process, and daily cell phone communication with PAL during the test

excavations south of Buckeye Brook.

At the construction site on October 18, 2002, Leveillee

met with representatives of the THPO, the Authority, and the Army

Corps of Engineers to discuss the non-archaeological topic of fish

runs in the brook. After discussing the Tribe's concerns, Harris

suggested that there might be Narragansett Indian burials in the

area south of the brook. This was the first time the Tribe ever

mentioned such a prospect. Harris said that he had been told by an

eyewitness that human remains had been exposed during previous

construction near there, but were immediately covered back up.

Leveillee asked for the name of Harris' informant, but Harris

declined to provide it. Harris also showed Leveillee a mound of

dirt with shell and glass fragments; Harris testified at the hearing

that the mound "could be consistent with a burial." The mound was

located where the homestead lies, so its surroundings had already

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been investigated extensively and the sewer route was already

changed to avoid the area.

The only other evidence the Tribe presented in the case

about burials near West Shore Road was the testimony of Max Brown,

a 77-year-old Tribe member and retired construction worker.1 Brown

said he had once worked on a project where a co-worker uncovered

bones that "looked like an arm and a leg or [a] hand and a leg"; he

did not approach or touch them and he left without finding out what

the bones were or what his coworker did with them. When asked to

identify the time of this incident, Brown stated that it "must have

been the fifties, I guess." As to location, he stated, "Well, I

live down around there. I've worked so many places they all look

the same. I can't remember just which one is which, but I did --

yeah, in them days I had dug up these bones." Eventually, guided

by questioning from the Tribe's counsel, Brown marked a map of East

Warwick with an "X" near the intersection of West Shore Road and

Sandy Lane. Harris also testified that he had spoken to various

other Tribe members about the history of the site, although there

was no evidence about what they told him.2

1
An affidavit was attached to the complaint, but it
contained a vague report based only on inadmissible hearsay, and
neither the affiant nor the alleged declarant testified at the
hearing.
2
Presumably, Brown was the eyewitness Harris spoke of at
the on-site meeting in October 2002, but the record does not make
this clear.

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 Despite the dearth of specific information provided by

the Tribe, Leveillee promptly notified the SHPO and the Authority

of these new contentions in a letter on October 28, 2002. In light

of the new information, he recommended that archaeologists should

be on site to monitor all construction activity along West Shore

Road near Buckeye Brook and Sandy Lane, rather than merely being on

call as was the case elsewhere in the project. The SHPO agreed with

this recommendation and wrote a letter to the Authority the next day

so stating. Since then, construction in the area has been monitored

by on-site PAL archaeologists. In addition, there is a protocol in

place for the entire project, written by Leveillee, which dictates

how supervisors are to deal with unanticipated discoveries of human

remains or other significant materials.

The letter from the SHPO also stated that "monitoring

should be conducted in consultation with the [THPO] as required by

the National Historic Preservation Act." The Authority and the

Tribe held some discussions, including a meeting on November 7,

2002, but they were unable to reach any agreement. The Tribe's

requests were made explicit. The Tribe wanted the Authority to hire

Harris and perhaps other Tribe members to monitor construction. The

Tribe has a standing agreement with the Rhode Island Department of

Transportation under which THPO representatives are paid up to $25

an hour to serve as archaeological monitors, and apparently sought

a similar arrangement with the Authority. The Authority indicated

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its willingness to have monitors from the Tribe in addition to the

PAL archaeologists, but refused to pay them and wanted

indemnification for any injuries a monitor might suffer while at the

construction site.

The meeting ended acrimoniously, and the same day the

Tribe filed a complaint in district court seeking declaratory and

injunctive relief. The complaint relied on both Rhode Island law

and the NHPA, but only the denial of preliminary injunctive relief

under the NHPA is appealed. As the Tribe's counsel explained at the

district court hearing and at oral argument before this court, the

injunctive relief sought is: (1) a requirement that the Authority

consult with the Tribe pursuant to § 106; (2) a requirement that the

Authority use a bucket with a flat blade rather than teeth for

digging; and (3) a requirement that the Authority allow members of

the Tribe to serve as monitors at the construction site, and pay

these monitors for their services.

The district court entered a temporary restraining order

on November 14, 2002, under which the Tribe was permitted to monitor

the project without pay, provided it indemnified the Authority. The

preliminary injunction hearing was the next day, a Friday. On

Monday, November 18, 2002, the district court denied the preliminary

injunction and vacated the temporary restraining order. The Tribe

brought this interlocutory appeal. See 28 U.S.C. § 1292(a)(1)

(allowing interlocutory appeal when injunctions are denied). We

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were informed by counsel at oral argument that construction is

continuing to proceed down West Shore Road.3

II.

The Tribe has the burden to show that a preliminary

injunction should have been granted under the familiar four-part

test, which considers the likelihood of success on the merits, the

potential for irreparable injury, the balance of equities for and

against an injunction, and the effect on the public interest. See

Bercovitch v. Baldwin Sch., 133 F.3d 141, 151 (1st Cir. 1998);

Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.

1991). On appeal, this court affords "considerable deference" to

the "judgment calls" the district court made in applying this test,

while reviewing pure issues of law de novo and factual findings for

clear error. Langlois v. Abington Hous. Auth., 207 F.3d 43, 47 (1st

Cir. 2000); see Bercovitch, 133 F.3d at 151.

Section 106 provides that planners of a federally

supported project must "take into account" its effect on any area

eligible for inclusion in the National Register of Historic Places.

16 U.S.C. § 470f; see id. § 470a(a) (National Register guidelines).

In addition, the NHPA provides that planners "shall consult with any

3
At the request of the court, the parties have since
reported that they intend to meet again to "engage in good faith
efforts to consult," but that they have not resolved the case.

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Indian tribe . . . that attaches religious and cultural importance"

to an eligible affected area. Id. § 470a(d)(6)(B).4

Congress often imposes a consultation requirement in

statutes such as the NHPA, particularly when interaction with tribes

is involved. See D.C. Haskew, Federal Consultation with Indian

Tribes, 24 Am. Indian L. Rev. 21, 21 n.3 (collecting statutes and

regulations requiring consultation with tribes). The bare word

"consult" standing alone, undefined, can lead to differing views and

to conflicting judicial interpretations. See, e.g., Campanale &

Sons, Inc. v. Evans, 311 F.3d 109, 117-19 (1st Cir. 2002); id. at

124-25 (Lynch, J., dissenting); Haskew, supra, at 41-55 (collecting

and analyzing conflicting cases interpreting consultation

requirements).

Fortunately, the NHPA explicitly delegates authority to

the Advisory Council on Historic Preservation (the "Council") to

promulgate regulations interpreting and implementing § 106. 16

U.S.C. § 470s. The Council has issued detailed regulations to give

substance to § 106's consultation requirements. 36 C.F.R. pt. 800;

see 65 Fed. Reg. 77698 (Dec. 12, 2000) (revising regulations). This

"complex consultative process" includes specified steps and time

4
Both the parties and the district court assumed that the
NHPA gives the Tribe a private right of action in this case.
Because this is a statutory question rather than one of Article III
jurisdiction, we may bypass it where the case can otherwise be
resolved in defendant's favor. See Restoration Pres. Masonry, Inc.
v. Grove Europe Ltd., 325 F.3d 54, 59-60 (1st Cir. 2003). We do so
here.

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limits. Save Our Heritage, Inc. v. Fed. Aviation Admin., 269 F.3d

49, 62 (1st Cir. 2001). Of course, we defer to an authorized

administrative agency's reasonable elaboration of an ambiguous

statutory term such as "consultation." Chevron U.S.A., Inc. v.

Natural Res. Def. Council, 467 U.S. 837, 842-44 (1984).

Section 106 is characterized aptly as a requirement that

agency decisionmakers "stop, look, and listen," but not that they

reach particular outcomes. Muckleshoot Indian Tribe v. U.S. Forest

Serv., 177 F.3d 800, 805 (9th Cir. 1999) (per curiam); see Nat'l

Mining Ass'n v. Fowler, 324 F.3d 752, 755 (D.C. Cir. 2003)

(requirements imposed by § 106 are procedural, not substantive); cf.

Conservation Law Found. v. Busey, 79 F.3d 1250, 1271 (1st Cir. 1996)

(characterizing National Environmental Policy Act in similar terms).

Under the Council's regulations, the agency official is responsible

for initiating consultation with tribes. 36 C.F.R. § 800.3(c).5 A

tribe may become a consulting party when it considers a site that

might be affected by the undertaking to have religious or cultural

significance. Id. § 800.2(c)(2)(ii). Such a consulting tribe is

then entitled to:

a reasonable opportunity to identify its concerns about
historic properties, advise on the identification and
evaluation of historic properties, including those of
traditional religious and cultural importance, articulate
its views on the undertaking's effects on such

5
The "agency official" in this case is the head of the
Authority, who has been delegated responsibilities under § 106.
See 36 C.F.R. § 800.16(k).

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 properties, and participate in the resolution of adverse
effects.

Id. § 800.2(c)(2)(ii)(A). Each of these stages of consultation --

initiating the process, advising on identification of properties,

expressing views on assessing the undertaking's effects on them, and

participating in resolving those effects -- is then spelled out in

greater detail. See id. §§ 800.3-800.7.

The Authority dutifully initiated consultation. In

January 2001, the Tribe was provided with PAL's determination that

the project would not affect any significant artifacts or properties

and was invited to comment on that conclusion. Under the

regulations, the Tribe's failure to respond within thirty days

permitted the Authority to proceed. See id. § 800.4(d)(1). From

January 2001 to October 2002, there was no further indication that

the project had any impact on burials or Native American artifacts.

The Tribe was nonetheless kept informed about ongoing investigation,

by means of the March 2002 technical report and other communication.

The Tribe's own deputy THPO testified that he spoke daily with PAL

during its field research in the Buckeye Brook area. Meanwhile, the

Authority, PAL, and the SHPO worked together to identify the

homestead site and reroute the project to avoid affecting it.

The regulations allow the Tribe to take a role in the

consultation process later, but not to turn back the clock. "If the

SHPO/THPO re-enters the Section 106 process, the agency official

shall continue the consultation without being required to reconsider

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previous findings or determinations." Id. § 800.3(c)(4). Even if

the Tribe validly "re-entered" consultation by raising its concerns

at the on-site meeting, it cannot demand a reversal of the prior

finding that the route down West Shore Road would not affect

significant Native American archaeological material.

The evidence that there may be burials under West Shore

Road is gossamer thin. Cf. Guilbert, 934 F.2d at 8 ("[T]here was

no compelling reason to believe that artifacts of historic

significance existed on the . . . property."). The current route

avoids the possible site that Harris pointed out to Leveillee, so

that leaves Brown's vague and uncorroborated testimony as the only

indication of affected burials. PAL's comprehensive analysis points

the other way. Excavation along the route of an existing state

highway, in the wake of previous road construction and utility

installation, is unlikely to uncover previously undisturbed

archaeological materials. Nevertheless, the Authority responded to

the Tribe's eleventh-hour objection with sensitivity. PAL promptly

informed the SHPO of the Tribe's information, and the Authority

initiated the recommended on-site monitoring. Moreover, the Tribe

concedes that consultation has continued since that time, and that

the parties have agreed to meet again.

Where no historic property has been identified, the Tribe

has no basis under the NHPA to demand particular actions by the

Authority. See Morongo Band of Mission Indians v. Fed. Aviation

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Admin., 161 F.3d 569, 582 (9th Cir. 1998) (tribal concurrence not

necessary under NHPA where finding of no possible effect on historic

properties is properly made); Native Ams. for Enola v. U.S. Forest

Serv., 832 F. Supp. 297, 300 (D. Or. 1993), vacated on other

grounds, 60 F.3d 645 (9th Cir. 1995) (regulations do not require

consultation on significance under § 800.4(c) when no historic

properties are found under § 800.4(b)). The Tribe is entitled to

"identify its concerns," to "advise," to "articulate," and to

"participate." 36 C.F.R. § 800.2(c)(2)(ii)(A). But consultation

is not the same thing as control over a project. See Save Our

Heritage, 269 F.3d at 62 ("[T]he choice whether to approve the

undertaking ultimately remains with the agency."); see also Davis

v. Latschar, 202 F.3d 359, 361 (D.C. Cir. 2000) (allowing

undertaking to proceed because substance of objection was given full

consideration).

Because no historic property has been identified, the

NHPA provides no grounds for an injunction regarding the use of a

particular type of digging blade or payment for monitoring

personnel. For these aspects of its requested relief, the Tribe has

no possibility of any success on the merits (much less a likelihood

of success). And because there is no tribal veto, the Tribe suffers

no cognizable injury when its preferred remedy is not adopted (much

less the required irreparable injury). The only remaining

injunctive relief the Tribe requests is an order that consultation

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occur. But the facts show that the Authority has already fulfilled

its consultation responsibilities and continues to do so. The

Tribe's arguments to the contrary are unavailing.

In its appellate brief, the Tribe suggests that there is

no evidence to prove that it actually received the initial January

2001 letter and report that initiated the § 106 process. However,

Leveillee testified that the documents were mailed with return

addresses and were never returned. The SHPO certainly received its

copy. This gives rise to a rebuttable presumption, which the Tribe

does nothing to rebut, that a properly-mailed document was received.

1 J.M. McLaughlin, Weinstein's Federal Evidence § 301.06[5], at 301-

28.5 (2d ed. 2003); cf. Univ. Emergency Med. Found. v. Rapier Invs.,

Ltd., 197 F.3d 18, 21 & n.6 (1st Cir. 1999) (discussing common-law

"mailbox rule").

The Tribe also implies that the Authority acted

impermissibly by hiring PAL to complete the archaeological

assessments. There is no support for this contention, and we think

just the opposite is true.6 The regulations themselves explicitly

contemplate the use of consultants to provide analyses for use in

the § 106 process. 36 C.F.R. § 800.2(a)(3). It is completely clear

from the materials provided to the Tribe that PAL was acting as the

Authority's agent. By retaining experts and following their

6
Ironically, the Tribe itself had hired PAL "quite often"
in the past to help with archaeological projects. There is no
question about PAL's competence in the field.

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recommendations, the Authority demonstrated its commitment to

historic preservation. The Authority retains legal responsibility

for compliance with the NHPA, id., and no one is suggesting

otherwise here.

The Tribe's most plausible argument on the merits relies

heavily on Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir.

1995), for the proposition that "a mere request for information is

not necessarily sufficient to constitute the 'reasonable effort'

section 106 requires." Id. at 860. Even though a request for

information is not necessarily sufficient, it might be, depending

on the circumstances. We would take real inadequacies in the

initial steps of identifying properties seriously, since they

influence all that follows in the § 106 process. See Attakai v.

United States, 746 F. Supp. 1395, 1405-06 (D. Ariz. 1990).

There are no such inadequacies here. Pueblo of Sandia is

quite different from this case. First, the Authority extended more

than a "mere request for information"; it provided the Tribe with

reports on PAL's findings, engaged it in other contact about the

project, and solicited its comments. Second, the surrounding

circumstances in Pueblo of Sandia led the court to conclude that the

agency there, the United States Forest Service, had not engaged in

reasonable or good faith efforts to determine if its undertaking

would affect cultural properties. The Forest Service sent form

letters to tribes asking for very detailed information in specific

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formats but providing no information in return; the tribes responded

with relevant information indicating the presence of cultural

properties, which the Forest Service ignored. 50 F.3d at 860-61.

The Forest Service also withheld significant information from the

SHPO there. Id. at 862. In contrast, the Authority and PAL took

the slimmest evidence from the Tribe very seriously and reported it

to the SHPO here right away.

Even if there were any possibility on the merits that the

Tribe could demonstrate flaws in the consultation process -- an

assumption which we indulge only for the sake of argument -- the

facts do not show that irreparable injury would occur without a

preliminary injunction. The route under West Shore Road avoids the

potentially sensitive area south of Buckeye Brook and proceeds

through one where the discovery of artifacts is unlikely. Both PAL

and the SHPO's principal archaeologist testified that the type of

digging blade used by the Authority is appropriate under the

circumstances. PAL archaeologists are monitoring work and will

continue to do so, and a protocol guides steps to be taken in the

event that significant historic materials come to light.

In sum, the Tribe has failed to carry its burden in two

separate respects, proving neither likelihood of success nor

irreparable injury.

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 III.

The Authority, conscious of its responsibility under the

NHPA and state law to proceed with sensitivity to historic

preservation concerns, sought expert advice from PAL at the very

outset of this project. It adopted recommendations from PAL and the

SHPO at every turn, including the decision to reroute construction

to avoid the homestead site. It kept the Tribe informed. When the

Tribe raised belated objections, they were taken seriously despite

the paucity of evidence supporting them, and the Authority again

adjusted its plans to accommodate them. In short, as the district

court concluded, the Authority's experts "did everything right, and

they continue to do everything right" to comply with both the letter

and the spirit of § 106.

The district court's denial of a preliminary injunction

is affirmed. Costs are awarded to the Authority.

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