Narragansett Indian Tribe v. Rhode Island Department of Transportation, et al.

The Narragansett Indian Tribe (the "Tribe") appeals the district

court's dismissal of its complaint against a handful of federal and

Rhode Island agencies concerning a highway bridge reconstruction over

historic tribal land. At base, the Tribe contends that the state of

Rhode Island broke a promise made to the Tribe. Because this is not

the type of claim federal courts may adjudicate, we affirm the district

court's dismissal of the complaint.

I.

We take the facts as described by the Tribe in its

complaint. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 5

(1st Cir. 2011). The Tribe's grievance stems from an agreement

reached between the Tribe and state and federal agencies under the

auspices of the National Historic Preservation Act, 54 U.S.C.

§ 300101 et seq. (the "NHPA" or the "Act"). The NHPA requires

federal agencies overseeing major projects that involve the

expenditure of federal funds to "take into account the effect of"

that project on historic properties, including some tribal lands.

54 U.S.C. § 306108; see also Narragansett Indian Tribe v. Warwick

Sewer Auth., 334 F.3d 161, 166 (1st Cir. 2003). One way a federal

agency can meet its NHPA obligations is by following the so-called

"section 106" process, which requires federal agencies to consult

with key stakeholders in what we have described as a "stop, look,

and listen" process. Warwick Sewer Auth., 334 F.3d at 166; see 36

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C.F.R. §§ 800.3–800.13. Alternatively, it can develop and

implement a programmatic agreement between the agency and the

affected parties spelling out how the parties will address the

expected adverse effects of the project. See 36 C.F.R.

§ 800.14(b).

In this case, the Tribe foresaw that a proposed I-95

bridge replacement project in Providence, Rhode Island, overseen

by the Federal Highway Administration, would adversely affect the

Providence Covelands Archaeological District, a historic property

under the NHPA and a site of importance to the Tribe. The Tribe,

the Federal Highway Administration, the Rhode Island Department of

Transportation ("RIDOT"), and two historic preservation agencies

(the federal Advisory Council on Historic Preservation and the

Rhode Island Historical Preservation and Heritage Commission)

reached an agreement signed by all parties in 2011 and amended in

2013.1 As mitigation for the expected negative impact of the

bridge renovation on the Providence Covelands Archaeological

District, RIDOT agreed to give the Tribe three parcels of land.

When it later came time to transfer the parcels to the

Tribe, the state insisted that the Tribe waive any claim of

1 In this opinion, we refer to the Federal Highway

Administration and the federal Advisory Council on Historic

Preservation as the "federal defendants." We refer to RIDOT and

the Rhode Island Historical Preservation and Heritage Commission

as the "state defendants."

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sovereign immunity on those lands and agree that Rhode Island civil

and criminal laws apply. The Tribe refused. After unsuccessful

efforts to resolve the dispute in accordance with the terms of the

agreement, the Federal Highway Administration and RIDOT terminated

the agreement in its entirety. This left the Federal Highway

Administration to follow the standard NHPA process to meet its

statutory obligation. See 36 C.F.R. § 800.3–800.13 (requiring,

e.g., identification of historic properties, assessment of adverse

effects, and consultation with designated parties).

The Tribe subsequently filed suit in federal district

court alleging breach of contract (count III) and seeking

declaratory and injunctive relief (counts I and II, respectively).

The Tribe sought both a declaration that the agreement remains in

effect and a court order directing RIDOT to transfer the properties

to the Tribe in accordance with the Tribe's interpretation of the

agreement.

The district court granted the various defendants'

motions to dismiss the case. As to the federal defendants, the

district court concluded that none of the three statutes identified

in the complaint -- the Declaratory Judgment Act, 28 U.S.C. § 2201,

the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"),

and the NHPA -- waived the federal government's sovereign immunity

to the Tribe's claims. Narragansett Indian Tribe v. R.I. Dep't of

Transp., No. 17–125 WES, 2017 WL 4011149, at *3 (D.R.I. Sept. 11,

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2017). That ruling left the question of whether the district court

also lacked subject matter jurisdiction to hear the claims

involving the state defendants. Reasoning that the APA provides

no cause of action against state agencies and that the Declaratory

Judgment Act does not itself confer federal subject matter

jurisdiction, the district court proceeded to assess whether the

NHPA provides a federal cause of action against the state

defendants. Id. at *4. Recognizing a lack of circuit precedent

on the question and relying on guidance from the United States

Supreme Court that "[s]tatutes that focus on the person regulated

rather than the individuals protected create 'no implication of an

intent to confer rights on a particular class of persons,'"

Alexander v. Sandoval, 532 U.S. 275, 289 (2001) (quoting California

v. Sierra Club, 451 U.S. 287, 294 (1981)), the district court

reasoned that the NHPA provides no private right of action, as it

solely regulates federal agencies. Narragansett Indian Tribe,

2017 WL 4011149, at *4. Thus, the district court concluded, the

Tribe alleged no basis to support the court's exercise of

jurisdiction. Id. at *5.

II.

The first issue posed on appeal is whether the federal

government has waived its sovereign immunity so as to allow the

Tribe to bring its claims against the federal defendants. In

ordinary course, one might have expected the Tribe to rely on the

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waiver of sovereign immunity contained in the Administrative

Procedure Act, 5 U.S.C. § 702. The Tribe, however, deems that

waiver "too limit[ed]" for its purposes. The Tribe therefore rests

its challenge to federal sovereign immunity upon a single, quite

different argument: It contends that the NHPA itself implicitly

creates a private right of action that is broad enough to encompass

the claims that the Tribe seeks to press against the federal

government, and that the creation of such a cause of action

necessarily waives the federal government's sovereign immunity in

connection with the bringing of such a suit. For the following

reasons we reject such an argument.

A.

We have previously assumed, without deciding, that the

NHPA creates some type of private right of action. See Warwick

Sewer Auth., 334 F.3d at 166 n.4. Such an assumption subsequently

became more tenuous in the wake of the Supreme Court's decision in

Sandoval, 532 U.S. at 289 (casting doubt on whether statutory

language that "focus[es] on the person regulated . . . [or] the

agencies that will do the regulating" "rather than the individual[]

protected" can create by implication a private right of action to

enforce those dictates). The only two courts of appeals to have

since considered whether Congress created by way of the NHPA a

private right for individuals to enforce the Act have found that

it did not. See Karst Envtl. Educ. & Prot., Inc. v. EPA, 475 F.3d

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1291, 1295 (D.C. Cir. 2007); San Carlos Apache Tribe v. United

States, 417 F.3d 1091, 1099 (9th Cir. 2005); see also Coal. of

Concerned Citizens To Make Art Smart v. Fed. Transit Admin. of

U.S. Dep't of Transp., 843 F.3d 886, 901 (10th Cir. 2016) (noting

in dicta that plaintiffs' claims arose under the APA because the

NHPA provides no private right of action). And one circuit court

that previously held otherwise has questioned its pre-Sandoval

ruling. See Friends of St. Francis Xavier Cabrini Church v. FEMA,

658 F.3d 460, 466 n.2 (5th Cir. 2011) ("[T]he Supreme Court's

recent jurisprudence casts serious doubt on the continued

viability of the private right of action under the NHPA.").

The NHPA, though, does have a section authorizing a

successful litigant to recover attorneys' fees "[i]n any civil

action brought . . . to enforce this division," 54 U.S.C. § 307105,

so perhaps our prior assumption that it creates some type of

private right of action is not so tenuous. In any event, we can

continue to indulge this assumption, again without passing on its

correctness, because the Tribe in its complaint does not purport

to bring any claim to enforce the NHPA. Indeed, the Tribe does

not even allege any violation of the NHPA.

Rather, the Tribe in this case brings a breach of

contract claim against RIDOT for allegedly not complying with the

programmatic agreement, and otherwise seeks an injunction

enforcing the agreement wrapped in a declaration that the agreement

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is enforceable. In its twenty-page brief on appeal, the Tribe

never even mentions any violation of the NHPA by the federal

defendants. Neither the complaint nor the brief alleges that the

Federal Highway Administration is not properly taking into account

the effects of any federal undertaking in Rhode Island as to any

historic property. Rather, the Tribe trains its cause of action

on an allegation that RIDOT has breached promises it made in a

programmatic agreement that the Federal Highway Administration

brokered and then terminated when the parties could not mediate a

disagreement on how to implement the agreement.

Even the attorneys' fees clause that the Tribe says

implies the creation of a cause of action refers only to actions

to enforce the NHPA. And while we are willing to assume without

deciding that that clause implies the creation of such a cause of

action, in light of Sandoval we see no basis to stretch further to

find that the NHPA creates causes of action that go beyond

enforcing the terms of the Act. The NHPA itself says nothing about

programmatic agreements. See 54 U.S.C. § 306108. The implementing

regulations merely describe the concept of programmatic agreements

and sketch out bare procedural requirements. See 36 C.F.R.

§ 800.14 (b) & (f) (establishing programmatic agreements as an

alternative means for federal agencies to satisfy their statutory

obligation and creating minimal procedural requirements for them).

Nothing in the regulations requires a federal agency to enter into

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such an agreement. And nothing in the regulations prevents the

agency from terminating such an agreement. 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 in district

court 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.

B.

As for the claims against the state agencies, we agree

that the complaint lacks any basis for federal subject matter

jurisdiction. The APA provides no federal footing for a cause of

action against state actors. Town of Portsmouth, R.I. v. Lewis,

813 F.3d 54, 64 (1st Cir. 2016).2 Nor does the Declaratory Judgment

Act confer subject matter jurisdiction; the nature of the

underlying dispute must provide the basis for the claim to be heard

in federal court. Ernst & Young v. Depositors Econ. Prot. Corp.,

45 F.3d 530, 534 (1st Cir. 1995). Here, the claim is for breach

of contract between parties who are not citizens of different

states. See Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck

Hous. Auth., 207 F.3d 21, 27 (1st Cir. 2000) (tribes are generally

2 A state agency delegated authority pursuant to federal law

to fulfill a federal obligation may present a different case, one

we do not encounter today.

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considered not to be citizens of any state, and they destroy

complete diversity of parties for purposes of 28 U.S.C. § 1332).

Although the purported contract arose under the auspices of the

NHPA, the claim against the state agencies has no substantive basis

in any of the NHPA's dictates. The NHPA is a procedural statute

directed at federal agencies; it provides no toehold to seek

redress against a state agency, as it requires nothing of state

actors except in limited circumstances not applicable here.3 The

Tribe does not contend that any of the state defendants breached

any obligations imposed on them by the NHPA, or that the NHPA

subsumes its breach of contract claim. Even assuming that the

NHPA provides some private right of action, we would still have no

basis to judge the legality of the state defendants' actions absent

some claim that the NHPA also imposed on them a duty that they

breached, as was the case in Warwick Sewer Authority. 334 F.3d at

162 (assuming without deciding that the NHPA provides a private

right of action to enforce the NHPA's requirement of consultation

with the tribe against the local agency). Here, the Tribe asserts

that RIDOT breached a duty it assumed only through the agreement

entered into as a way for the Federal Highway Administration to

meet its statutory obligation to "take into account" the effect of

3 An NHPA regulation allows the head of the federal agency

involved in the project to delegate responsibility for compliance

with the NHPA to a state, local, or tribal government. 36 C.F.R.

§ 800.16(k) (defining "head of the agency").

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the I-95 project on the historic site. 54 U.S.C. § 306108. There

is no claim that the state defendants violated the NHPA.

The Tribe invokes Grable & Sons Metal Prod., Inc. v.

Darue Eng'g & Mfg., 545 U.S. 308 (2005) to argue that the breach

of contract claim nevertheless "arises under" federal law for

jurisdictional purposes because the agreement stems from the NHPA

process. Grable, though, stands for the notion that in rare

instances, a state law cause of action (like breach of contract)

can form the basis for federal "arising under" jurisdiction if the

claim necessarily states a federal issue, which is actually

disputed and substantial, and if a federal forum may entertain the

claim "without disturbing any congressionally approved balance of

federal and state judicial responsibilities." Id. at 312–14. The

Grable factors counsel against finding federal question

jurisdiction here. Because the Tribe does not claim that RIDOT

owed and breached any obligations imposed by the NHPA or any other

federal law, there is no federal issue stated, let alone one that

is actually disputed and substantial. The NHPA does not tell us

whether the state agencies entered into a valid contract. Nor

does the NHPA explain whether RIDOT breached any duty assumed

thereunder. Against a properly waged breach of contract claim in

state court, the state defendants might counter that the Federal

Highway Administration terminated the agreement, and thus no

contract remains. Understanding the validity of the contract might

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therefore require the court to understand that a federal agency

can meet its NHPA obligations either by developing and implementing

a programmatic agreement or by following the standard "section

106" process set forth in 54 U.S.C. § 306108 and its implementing

regulations, 36 C.F.R. §§ 800.1–800.16. But the mere fact that a

claim or defense requires an explanation of a federal statutory

scheme as background does not mean that a complaint "necessarily

raise[s] a stated federal issue." Grable, 545 U.S. at 314.

The disputed federal issue would have to be more apparent

and substantial than it is here in order to say that a breach of

contract claim against a state can form the basis of federal

"arising under" jurisdiction. See, e.g., One & Ken Valley Hous.

Grp. v. Maine State Hous. Auth., 716 F.3d 218, 224 (1st Cir. 2013)

(dispute sufficiently arose under federal law because it involved

federal contractor's implementation of a federal program in which

contracts at issue were drafted and approved by a federal agency

and signed by a federal official and the claim was that the federal

contractor breached by following a guideline promulgated by a

federal agency pursuant to a federal statute); Rhode Island

Fishermen's All., Inc. v. Rhode Island Dep't Of Envtl. Mgmt., 585

F.3d 42, 52 (1st Cir. 2009) (lobstermen could challenge in federal

court a Rhode Island lobster-trap allocation statute that made

exercise of state agency authority dependent on federal law,

requiring interpretation of federal law). The disputed questions

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-- such as whether the state could bind itself in the manner

alleged, whether it did bind itself by signing the programmatic

agreement, or whether it waived sovereign immunity when it did so

-- are all questions of state law best left for the courts of Rhode

Island.

We affirm the dismissal of the Tribe's complaint.