Case Law Updates on the Environment (CLUE)
Case Law Update Details
Narragansett Indian Tribe v Rhode Island DOT
U.S. Court of Appeals - 1st Circuit
Providence Viaduct Replacement
The project involved replacing a viaduct for I-95 in downtown Providence, Rhode Island. The project was carried out by the Rhode Island DOT (RIDOT) with funding from FHWA. The Narragansett Indian Tribe, FHWA, RIDOT, the Advisory Council on Historic Preservation (ACHP), and the Rhode Island Historical Preservation and Heritage Commission (RIHPHC) entered into a Programmatic Agreement (PA) to address any impacts that the project might have on historically significant land. The PA required RIDOT to transfer ownership of certain historic properties to the Tribe. RIDOT later insisted that it would not transfer the land to the Tribe unless the Tribe waived its sovereign immunity on the property and agreed that Rhode Island’s civil and criminal laws would apply on the property. The tribe refused. After the parties were unable to resolve the dispute, FHWA and RIDOT terminated the PA.
This case arose from the dispute between the Tribe and RIDOT over RIDOT’s conditions to the land transfer that was required by the PA. The Tribe filed this lawsuit against FHWA, ACHP, RIDOT, and the RIHPHC, asserting breach of contract claims and seeking declaratory and injunctive relief. In 2017, a federal district court dismissed the case, and the Tribe appealed. The U.S. Court of Appeals for the First Circuit affirmed the district court’s dismissal.
Section 106 of the National Historic Preservation Act
Enforceability of Programmatic Agreement Against FHWA. The court ruled that the Tribe could not sue FHWA and ACHP to enforce the PA because the federal agencies were entitled to sovereign immunity. The Tribe argued that the NHPA waived the federal government’s sovereign immunity for a lawsuit to enforce a PA, but the court disagreed. The court explained that the NHPA did not require a federal agency to enter into a PA nor prevent a federal agency from terminating a PA. Thus, even if the NHPA created a private right of action for plaintiffs to sue a federal agency for violating the NHPA (a question that the court did not decide), that right would not provide a basis for suing a federal agency to enforce a PA.
“In short, this is not an action to enforce the statute, nor is it even an action to enforce a regulation. Rather, it is an attempt to require the federal defendants to participate as parties in a suit arising out of RIDOT’s alleged breach of a contract. Nothing in the statute, either expressly or implicitly, waives the federal government’s sovereign immunity to such a suit.”
Enforceability of Programmatic Agreement Against State. The court also ruled that the Tribe could not bring a lawsuit in federal court against RIDOT and the RIHPHC for violating the PA because federal courts lacked subject matter jurisdiction over the claims. The court explained that although the PA “arose under the auspices of the NHPA,” the case essentially involved only issues of state contract law. Moreover, the Tribe could not bring a lawsuit against state agencies to enforce the NHPA because the NHPA is directed at federal agencies and does not impose duties on state agencies.