Narragansett Indian Tribe v. RI Dep't of Transportation

United States Court of Appeals
For the First Circuit
No. 17-1951
NARRAGANSETT INDIAN TRIBE, acting by and through the
Narragansett Indian Tribal Historic Preservation Office,
Plaintiff, Appellant,
v.
RHODE ISLAND DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY
ADMINISTRATION; ADVISORY COUNCIL ON HISTORIC PRESERVATION; RHODE
ISLAND HISTORICAL PRESERVATION AND HERITAGE COMMISSION,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, Chief U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
William P. Devereaux, with whom Pannone Lopes Devereaux &
O'Gara LLC was on brief, for appellant.
Mariana E. Ormonde, Special Assistant Attorney General, with
whom Peter F. Kilmartin, Attorney General, and Neil F.X. Kelly,
Assistant Attorney General, were on brief, for Rhode Island
appellees.
Michael T. Gray, Attorney, Appellate Section, Environment and
Natural Resources Division, United States Department of Justice,
with whom Jeffrey H. Wood, Acting Assistant Attorney General, and
Eric Grant, Deputy Assistant Attorney General, were on brief, for
federal appellees.
August 30, 2018
KAYATTA, Circuit Judge. 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
2A 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.
III.
We affirm the dismissal of the Tribe's complaint.
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