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

MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim

D.R.I.June 9, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND NARRAGANSETT INDIAN TRIBE ACTING BY AND THROUGH THE NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION OFFICE v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; ADVISORY COUNCIL ON HISTORIC PRESERVATION; RHODE ISLAND HISTORICAL PRESERVATION & HERITAGE COMMISSION C.A. No. 17-125-S-LDA FEDERAL DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and for the reasons set forth in the accompanying memorandum of law, the Federal Highway Administration and the Advisory Council on Historic Preservation hereby move to dismiss Plaintiff’s Complaint. Respectfully submitted, STEPHEN G. DAMBRUCH Acting United States Attorney /s/ Richard B. Myrus RICHARD B. MYRUS Assistant U.S. Attorney U.S. Attorney’s Office 50 Kennedy Plaza, 8th Floor Providence, RI 02903 Tel.: (401) 709-5000 Fax: (401) 709-5017 Email: richard.myrus@usdoj.gov JEFFREY H. WOOD Acting Assistant Attorney General Environment and Natural Resources Division Case 1:17-cv-00125-S-LDA Document 18 Filed 06/09/17 Page 1 of 2 PageID #: 97 2 /s Barbara M.R. Marvin BARBARA M.R. MARVIN (DC Bar No. 456496) United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, D.C. 20004 Telephone: (202) 305-0240 Fax: (202) 305-0506 E-mail: barbara.marvin@usdoj.gov Case 1:17-cv-00125-S-LDA Document 18 Filed 06/09/17 Page 2 of 2 PageID #: 98 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND NARRAGANSETT INDIAN TRIBE ACTING BY AND THROUGH THE NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION OFFICE v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; ADVISORY COUNCIL ON HISTORIC PRESERVATION; RHODE ISLAND HISTORICAL PRESERVATION & HERITAGE COMMISSION C.A. No. 17-125-S-LDA MEMORANDUM IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT Plaintiff, the Narragansett Indian Tribe (“Plaintiff” or “the Tribe”) challenges the implementation by the Rhode Island Department of Transportation (“RIDOT”) of a project for replacement of the I-95 Providence Viaduct. The Federal Highway Administration (“FHWA”) agreed to provide financial assistance for this undertaking,1 and together with the Tribe, acting through its Tribal Historic Preservation Officer (the “NITHPO”), the Rhode Island State Historic Preservation Office (“the RISHPO”), and RIDOT, it entered into a Programmatic Agreement to govern implementation of the project. In this lawsuit, Plaintiff contends that RIDOT has acquired certain Tribal Historic Properties, but that, contrary to the terms of the Programmatic Agreement, RIDOT has not transferred title to these properties to the Tribe. Plaintiff also alleges, “upon 1 An “undertaking” within the meaning of the National Historic Preservation Act (“NHPA”), 54 U.S.C. §§ 300101-320303, is “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including . . . those carried out with Federal financial assistance . . . .” 54 U.S.C. § 300320. Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 1 of 13 PageID #: 99 2 information and belief,” that RIDOT and the FHWA “have in [their] possession or controls funds allocated to fulfill [their] agreements” under the Programmatic Agreement. Compl. ¶¶ 24, 25, ECF No. 1. Plaintiff requests that the Court declare the Programmatic Agreement to be valid and enforceable, and that title to the Tribal Historic Properties at issue be transferred to the NITHIPO and the Tribe pursuant to the terms of the Programmatic Agreement. Id. ¶¶ 28, 29. In addition, Plaintiff asks the Court to enjoin any transfer of the subject Tribal Historic Properties except to the NITHPO or the Tribe, id. ¶ 33, and it seeks specific performance and enforcement against RIDOT as a remedy for RIDOT’s alleged breach of the Programmatic Agreement. Id., ¶¶ 34-36. The challenged action or refusal to act is not a final agency action by the FHWA or the ACHP (collectively “Federal Defendants”) that is sufficient to meet the terms of the waiver of the United States’ sovereign immunity under the Administrative Procedure Act (“APA”). The Court therefore lacks subject matter jurisdiction, and Plaintiff’s claims against the Federal Defendants should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). In addition, Plaintiff’s claims are properly subject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) because Plaintiff fails to allege any facts sufficient to state a plausible claim against the Federal Defendants upon which relief can be granted. I. STATUTORY BACKGROUND 1. The National Historic Preservation Act The National Historic Preservation Act (“NHPA”), amended and codified at 54 U.S.C. §§ 300101-320303, imposes procedural obligations on federal agencies to consider the effects of projects carried out, funded by, or licensed by federal agencies on historic properties. The “fundamental purpose of the NHPA is to ensure the preservation of historical resources.” Te- Moak Tribe of W. Shoshone of Nev. v. U.S. Dep't of Interior, 608 F.3d 592, 609 (9th Cir. 2010). Section 106 of the NHPA provides that, “prior to the approval of the expenditure of any Federal Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 2 of 13 PageID #: 100 3 funds on the undertaking or prior to the issuance of any license, [a federal agency] shall take into account the effect of the undertaking on any historic property.” 54 U.S.C. § 306108 (Section 106); 36 C.F.R. § 800.16(e). Congress created the Advisory Council on Historic Preservation (“ACHP”) to administer the NHPA, see 54 U.S.C. §§ 304101, 304108, and the ACHP has promulgated regulations that govern the implementation of Section 106. See 36 C.F.R. pt. 800. The regulations establish an orderly process to comply with Section 106, pursuant to which the relevant agency is required to consult with a number of specified parties to identify historic properties, assess the adverse effects that the proposed project would have on those properties, and “seek ways to avoid, minimize or mitigate any adverse effects.” Id. § 800.1(a). The Section 106 regulations authorize, but do not require, the negotiation of a “programmatic agreement to govern the implementation of a particular program or the resolution of adverse effects from certain complex project situations or multiple undertakings,” Id. § 800.14(b).2 The implementation of a programmatic agreement “evidences the agency official's compliance with section 106 . . . and shall govern the undertaking and all of its parts.” Id. § 800.6(c); see also § 800.14(b)(3). If a signatory to a programmatic agreement determines that the terms of the agreement cannot be, or are not being, carried out, the regulations require the signatories to consult and seek amendment of the agreement. If an amendment is not agreed upon, any signatory may terminate the agreement, and the agency official shall then either execute a memorandum of agreement with 2 When an undertaking may result in an adverse effect to a historic property, the federal agency has to “consult … to develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize or mitigate adverse effects on historic properties.” 36 C.F.R. § 800.6(a). However, if, for whatever reason, an agreement to resolve such effects is not reached (through a Programmatic Agreement for instance), the federal agency then discharges its Section 106 responsibilities through requesting and responding the ACHP’s comments. See id. § 800.7. Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 3 of 13 PageID #: 101 4 signatories pursuant to section 800.6 (c)(1) of the regulations or request the comments of the ACHP pursuant to section 800.7(a). Id. § 800.6(c)(8). 2. The Administrative Procedure Act Because the NHPA does not provide for a private right of action, the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, provides for judicial review of challenges to final agency actions under the NHPA. Brodsky v. U.S. Nuclear Regulatory Comm'n, 704 F .3d 113, 119 (2d Cir. 2013); Karst Envtl. Educ. & Prot., Inc. v. EPA, 475 F.3d 1291, 1295 (D.C. Cir. 2007) (“[B]ecause NHPA, like NEPA, contains no private right of action, . . . NHPA actions must also be brought pursuant to the APA.”). The APA provides that any “person . . . aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof.” Cohen v. Rice, 800 F. Supp. 1006, 1009 (D. Me. 1992) aff’d, 992 F.2d 376 (1st Cir. 1993) (citing 5 U.S.C. § 702). Pursuant to the APA, the reviewing court must “set aside agency action . . . found to be . . . arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law; . . . contrary to constitutional right . . . ; [or] without observance of the procedure required by law.” Id. (citing 5 U.S.C. § 706(2)). Judicial review under the APA is “available only for review of ‘final agency action for which there is no other adequate remedy in a court.’” Id. (citing 5 U.S.C. § 704) (emphasis added). II. FACTUAL AND PROCEDURAL BACKGROUND The ACHP’s Section 106 regulations allow a programmatic agreement to be employed in certain, specific circumstances, including cases in which “effects on historic properties cannot be fully determined prior to approval of an undertaking.” 36 C.F.R. § 800.14(b)(ii). Pursuant to this regulation, in the Programmatic Agreement, effective on October 3, 2011, concerning the Viaduct Project undertaking, FHWA, the NITHPO, the RISHPO, and RIDOT agreed that “in order to take into account the foreseen and unforeseen future effects of the Undertaking on historic properties,” Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 4 of 13 PageID #: 102 5 the Viaduct Project would be implemented in accordance with certain stipulations. Programmatic Agreement at 2, Compl. Ex. A. The Programmatic Agreement was amended in January 2013. The amendment struck Stipulation 3 in the October 3, 2011, Programmatic Agreement in its entirety and replaced it with an amended stipulation. In the amended stipulation, RIDOT agreed to acquire and transfer ownership of one Tribal Historic Property, the Salt Pond Archaeological Preserve in the Town of Narragansett, “to the State of Rhode Island jointly with the NITHPO for and on behalf of the . . . Tribe,” Amendment No.1, p. 1, attached as Exhibit 1,3and to acquire and transfer ownership of two other “significant Narragansett Indian Tribal cultural propert[ies][,]” the “so-called ‘Providence Boys Club-Camp’” and the “so called ‘Chief Sachem Night Hawk property,’” both in the Town of Charlestown, to the NITHPO for and on behalf of the Tribe. Since entering into the January 2013 amendment to the Programmatic Agreement, RIDOT has acquired title to each of the Tribal Historic Properties. It has not transferred ownership of the properties to the Tribe, however, and it has informed the NITHPO that it will not do so unless the Tribe passes a resolution authorizing the NITHPO to waive the Tribe’s sovereign immunity by executing “covenant(s) within the deed(s) that the Tribal Historic Properties shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.” See Letter from Director of RIDOT to the Tribe and the NITHPO dated September 16, 2013, Compl. Ex. C. The NIHTPO and the Tribe have refused to agree to this condition or to execute any deed or agreement waiving the Tribe’s sovereign immunity. Since September 2013, the Tribe, the NHTPO, and RIDOT have attempted to resolve their dispute about the transfer of ownership in the Tribal Historic Properties pursuant to the terms of 3 In its Complaint, Plaintiff mistakenly cites to the January 2013 Amendment as being attached as Exhibit B, but it instead attached a second copy of a September 2013 letter from the Director of RIDOT to the Tribe and the NITHPO, which is identical to Exhibit C. Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 5 of 13 PageID #: 103 6 Paragraph 7 (“Dispute Resolution”) of the Programmatic Agreement. The Federal Defendants have participated in these efforts in accordance with FHWA’s consultation requirements under the Programmatic Agreement and Section 106 of the NHPA. Ultimately, however, despite their extensive efforts, see letter from ACHP to NITHPO, dated March 3, 2017, Compl. Ex. D, the parties have been unable to agree on the transfer of title to the Tribal Historic Properties. Accordingly, on January 19, 2017, FHWA terminated the agreement and referred the matter to the ACHP for comment as required by the ACHP’s Section 106 regulations and the termination provision in the Programmatic Agreement. See 36 C.F.R. §§ 800.6(c)(8); 800.7(a)(1), (c); Programmatic Agreement, ¶ 9.4 On May 3, 2017, the ACHP provided its comments to FHWA, due to the termination of the agreement, noting that the FHWA is required to take the comments into account and respond prior to making a final decision on the project. III. STANDARDS OF REVIEW A. Rule 12(b)(1) Pursuant to Federal Rule of Civil Procedure 12(b)(1), a complaint, or any claims therein, may be dismissed for lack of subject matter jurisdiction. Jurisdiction is a threshold issue, which should be addressed prior to any consideration of the merits. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94 (1998). “[A] motion to dismiss based on the sovereign immunity of [a] named defendant is an attack on the court's subject matter jurisdiction . . . .” Lawson v. U.S. 4 The termination provision of the agreement states that “[i]f the PA is terminated for any reason, the FHWA shall comply with subpart B of 36 CFR § 800 (800.3-800.13).” As explained above, under those regulations, when parties fail to reach an agreement on resolving adverse effects (as the parties had in this case, despite their efforts since September 2013), the federal agency then discharges its Section 106 responsibilities by requesting, considering, and responding to the ACHP’s comments. See 36 C.F.R. § 800.7. Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 6 of 13 PageID #: 104 7 Internal Revenue Servs., No. 15-499ML, 2016 WL 4179790, at *4 (D.R.I. July 8, 2016), report and recommendation adopted, No. CV15-499ML, 2016 WL 4179886 (D.R.I. Aug. 5, 2016). In considering a motion to dismiss a claim against an agency of the United States based on sovereign immunity, the court's task is to seek evidence that the federal defendant expressly waived sovereign immunity or consented in any way to be sued in the case. If there is no waiver, the complaint must be dismissed. Id. (citing Menge v. N. Am. Specialty Ins. Co., 905 F. Supp. 2d 414, 416-17 (D.R.I. 2012)). B. Rule 12(b)(6) Dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6) is “proper . . . where the plaintiff has failed to state a claim upon which relief can be granted.” Mills v. U.S. Postal Serv., 977 F. Supp. 116, 119 (D.R.I. 1997). “[T]o survive a motion to dismiss, a plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’” Greene v. United States, No. 10–246 ML, 2011 WL 116829, at *4 (D.R.I. Jan. 13, 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Gianfrancesco v. Town of Wrentham, 712 F.3d 634, (1st Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Accord Mills, 977 F. Supp. at 119, (D.R.I. 1997) (“While a complaint need only set out a generalized statement of facts, there must be enough information to outline the elements of the pleaders' claim.” (quoting Kadar Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir.1977))). In assessing a motion under Rule 12(b)(6), “[a]lthough the plaintiff is entitled to all reasonable inferences, ‘bald assertions, unsupportable conclusions, . . . and the like need not be credited.’” Hatch v. Pitney Bowes, Inc., 485 F. Supp. 2d 22, 35-36 (D.R.I. 2007) (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)). As the Supreme Court has explained, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions [and] [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 7 of 13 PageID #: 105 8 IV. ARGUMENT Plaintiff’s claims against the Federal Defendants should be dismissed for two reasons. First, the action or the refusal to act on which Plaintiff bases its complaint, and from which any alleged injuries flow, does not constitute final agency action under the APA. Moreover, the action or refusal to act about which Plaintiff complains is an action taken (or not taken) by RIDOT, not the Federal Defendants. Therefore, there is no waiver of sovereign immunity applicable to Plaintiff’s claims and no legal basis under which Plaintiff’s factual allegations can be reviewed. Accordingly, the Court lacks subject matter jurisdiction. Moreover, Plaintiff has entirely failed to state a claim against the Federal Defendants. A. Plaintiff Has Not Alleged a Final Agency Action Sufficient to Invoke the APA’s Waiver of Sovereign Immunity. “The Federal Government cannot be sued without its consent[,]” United States v. Navajo Nation, 556 U.S. 287, 289 (2009), and it is axiomatic that, absent a waiver of sovereign immunity, the United States, its agencies, and employees cannot be sued in any court. See FDIC v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted); United States v. Mitchell, 463 U.S. 206, 212 (1983); Muirhead v. Mecham, 427 F.3d 14, 17 (1st Cir. 2005) (“It is beyond cavil that, as the sovereign, the United States is immune from suit without its consent.”). Because only Congress can waive sovereign immunity, a suit against the United States or its agencies may proceed only under such conditions as Congress may impose. United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Sherwood, 312 U.S. 584, 586-88 (1941). Neither the NHPA nor the Declaratory Judgment Act, the statutes upon which Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 8 of 13 PageID #: 106 9 Plaintiff bases its claims, provide a waiver of sovereign immunity,5 and therefore Plaintiff must instead rely on the waiver of sovereign immunity provided in the APA. Where claims are based on agency action or inaction, the United States’ waiver of sovereign immunity is limited by the APA’s final agency action requirement. See Baillargeon v. DEA, 638 F. Supp. 2d 235, 242 (D.R.I. 2009) (citing 5 U.S.C. § 702). “Only after an agency's final action may courts review the agency's decision.” Omnipoint Holdings, Inc. v. City of Cranston¸586 F.3d 38, 46 (1st Cir. 2009) (citing 5 U.S.C. § 704; Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 659 (2007)). As the Supreme Court has held, The well-settled rule in administrative law is that a ‘final agency action’ is one that ‘mark[s] the consummation of the agency’s decisionmaking process. It means a ‘final determination’ in a case by an administrative agency; that is, whether the agency ‘rendered its last word on the matter.’ Omnipoint Holdings, 586 F.3d at 46 (citing Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 478 (2001); Harrison v. PPG Indus., 446 U.S. 578, 586 (1980)). In determining finality, “[t]he core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.” Franklin v. Massachusetts, 505 U.S. 788, 797 (1992). Here, Plaintiff seeks declaratory and injunctive relief, and enforcement or specific performance of the Programmatic Agreement as a contract with RIDOT. These claims are premised on RIDOT’s failure to transfer title to the Tribal Historic Properties to Plaintiff. Plaintiff does not allege any action by Federal Defendants that caused or contributed to this result, 5 See Karst Envtl. Educ. & Prot., Inc., 475 F.3d at 1295 (because the NHPA does not create private right of action, “NHPA actions must . . . be brought pursuant to the APA.” (citng San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1099 (9th Cir. 2005))); Muirhead, 427 F.3d at 17, n.1 (Declaratory Judgment Act “plainly does not operate as an express waiver of sovereign immunity.”(citing Progressive Consumers Fed. Credit Union v. United States, 79 F.3d 1228, 1230 (1st Cir. 1996))). Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 9 of 13 PageID #: 107 10 let alone any final agency action regarding the transfer of title to the property. Instead, Plaintiff merely speculates that FHWA “has in its possession or controls . . . funds allocated to fulfill its agreements” under the Programmatic Agreement, Compl., ¶25, and on that basis, it requests a declaration that any such funds are due and payable to the Tribe, acting by and through the NITHPO. Id. ¶ 30. “Rights or obligations” are not determined by hypothetical or presumed actions, however, and accordingly, Plaintiff has not alleged any final actions sufficient to invoke the APA’s waiver of sovereign immunity. In sum, because Plaintiff has not alleged that there has been any agency action whatsoever, let alone any final action by Federal Defendants, and there is no applicable waiver of sovereign immunity, Plaintiff’s claims should be dismissed for lack of subject matter jurisdiction. B. Plaintiff Fails to State Any Claim Against Federal Defendants. The gravamen of Plaintiff’s Complaint is that RIDOT has refused to transfer title to the Tribal Historic Properties to the Tribe in violation of the terms of the Programmatic Agreement. Compl. ¶¶ 14, 17. These allegations are the basis for the majority, if not all, of the declaratory, injunctive, and contractual relief Plaintiff seeks. As explained above, however, Plaintiff’s sole allegation against Federal Defendants is that, “[u]pon information and belief, FHWA has in its possession or controls, funds allocated to fulfill its agreements under the P[rogrammatic] A[greement],” Compl. ¶ 25 (emphasis added), and on that basis, Plaintiff requests a declaration that any such funds are due and payable to the Tribe, acting by and through the NITHPO. Id. ¶ 30. Plaintiff’s allegation against the Federal Defendants is based only on speculation and is thus entirely “devoid of . . . factual enhancement” or basis, see Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Accordingly, the Court need not accept the allegations as true, Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 10 of 13 PageID #: 108 11 and therefore, Plaintiff’s Complaint does not “contain sufficient factual matter . . . to state a claim [against] the Federal Defendants that is plausible on its face[.]’” Gianfrancesco, 712 F.3d at 638 (quoting Iqbal, 556 U.S. at 678). ). In other words, although the Plaintiff alleges breach of contract against the RIDOT and seeks declaratory and injunctive relief requiring RIDOT to transfer title to the subject Tribal Historic Properties to the NITHPO for the Tribe, Plaintiff fails to state any claim whatsoever against the Federal Defendants. V. CONCLUSION For the foregoing reasons, Federal Defendants request that Plaintiff’s Complaint be dismissed. Dated this 9th day of June, 2017. Respectfully submitted, STEPHEN G. DAMBRUCH Acting United States Attorney /s/ Richard B. Myrus RICHARD B. MYRUS Assistant U.S. Attorney U.S. Attorney’s Office 50 Kennedy Plaza, 8th Floor Providence, RI 02903 Tel.: (401) 709-5000 Fax: (401) 709-5017 Email: richard.myrus@usdoj.gov JEFFREY H. WOOD Acting Assistant Attorney General Environment and Natural Resources Division /s Barbara M.R. Marvin BARBARA M.R. MARVIN (DC Bar No. 456496) United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, D.C. 20004 Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 11 of 13 PageID #: 109 12 Telephone: (202) 305-0240 Fax: (202) 305-0506 E-mail: barbara.marvin@usdoj.gov Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 12 of 13 PageID #: 110 13 CERTIFICATE OF SERVICE I hereby certify that on the 9th day of June, 2017, I electronically filed the within Defendant Federal Highway Administration’s Motion to Dismiss Plaintiff’s Complaint and supporting Memorandum with the Clerk of the United States District Court for the District of Rhode Island using the CM/ECF System. The following participant has received notice electronically: John F. Killoy, Jr., Esq. LAW OFFICE OF JOHN F. KILLOY, JR., LLC 887 Boston Neck Road, Suite One Narragansett, RI 02882. /s/ Barbara M.R. Marvin Case 1:17-cv-00125-S-LDA Document 18-1 Filed 06/09/17 Page 13 of 13 PageID #: 111 ~'1-~1-~,c_1,.,r~er~- ~~ AMENDMENT NO.1 to the PROGRAMMATIC AGREEMENT AMONG THE FEDERAL HIGHWAY ADMIlVISTRATION, THE RHODE ISLAND STATE HISTORIC PRESERVATION OFFICER, THE NARRAGANSETT INDIAN TRIBAL ffiSTORIC PRESERVATION OFFICER, AND THE RHODE ISLAND DEPARTMENT OF TRANSPORTATION REGARDING THE PROVIDENCE VIADUCT BRIDGE NO.578 REPLACEMENT PROJECT PROVIDENCE, RHODE ISLAND WHEREAS, pursuant to 36 CFR Part 800 regulations implementing Section 106 of the National Historic Preservation Act of 1966, as amended, the U.S. Department of Transportation, Federal Highway Administration ("FHWA"), the Rhode Island State Historic Preservation Officer ("RISHPO"), the Narragansett Indian Tribal Historic Preservation Officer ("NI'THPO") and the State of Rhode Island, acting by and through the Rhode Island Department of Transportation ("RIDOT") executed a Programmatic Agreement ("2011 PA") in October 2011 regarding the Providence Viaduct Bridge No. 578 Replacement Project (the "Undertaking") to ensure that potential effects on historic properties are taken into account and to satisfy FHWA's Section 106 responsibility for the Undertaking; and, WHEREAS, the FHVJA, RISHPO, NITHPO and RIDOT agreed that the Undertaking shall be implemented in accordance with the Stipulations Nos. 1 through 11 as identified in the executed 2011 PA; and, WHEREAS, included in the Stipulations is Stipulation No. 3 that serves to mitigate the effects of the Undertaking on the Providence Covelands Archaeological District (RI 935); and WHEREAS, the FHWA, RISHPO, NTTHPO and RIDOT have determined that Stipulation No. 3 needs to be amended. NOW THEREFORE, FHWA, RISHPO, NTTHPO and RIDOT agree that the 2011 PA for the Undertaking shall be amended as follows: The existing Stipulation No. 3 is stricken in its entirety from the 2011 PA and replaced as follows: 3. Providence Covelands Archaeological District (RI 93~ The FHWA in coordination with RIDOT shall ensure that the following stipulations will be carried out as mitigation for the effects of the Undertaking on the Providence Covelands Archaeological District (RI 935): a. RIDOT shall acquire and transfer ownership of the Salt Pond Archaeological Preserve (RI 1 10), a National Register eligible historic property and significant Narragansett Indian Tribal cultural property located in the Town of Narragansett, Rhode Island to the State of Rhode Island jointly with the Narragansett Indian Tribal Historic Preservation Office for and on behalf of the Narragansett Indian Tribe. Details of the ownership and public access shall be detailed in a Memorandum of Agreement between the RISHPO and NITHPO developed in consultation with FHWA and RIDOT. Said Salt Pond Archaeological Preserve (RI-110) comprises Town of Narragansett's Tax Assessor's Plat W, Lot 81, Lot 82/Subdivision Lots 27-79 and Lot 82/Subdivision Lots A (portion), B, C, E (portion), F, G, H, I, J and K. RIDOT shall consult with the signatories to develop and implement appropriate covenants that preserve the property and its cultural resources and, provide reasonable and controlled public access in perpetuity, which shall be included in the deed for said Salt Pond Archaeological Preserve (RI 110). Case 1:17-cv-00125-S-LDA Document 18-2 Filed 06/09/17 Page 1 of 3 PageID #: 112 Amendment No. 1 to Programmatic Agreement Providence Viaduct Bridge No. 578 Replacement Project b. RIDOT shall acquire and transfer ownership of the so-called "Providence Boys Club —Camp Davis" (a 105+/- acre parcel), a significant Narragansett Indian Tribal cultural property located in Charlestown, Rhode Island, to the Narragansett Indian Tribal Historic Preservation Office for and/on behalf of the Narragansett Indian Tribe. Said property comprises Town of Charlestown's Tax Assessor's Plat 19, Lot 75. Appropriate covenants that preserve the property and its cultural resources in perpetuity shall be included in the deed for said property. c. RIDOT shall acquire and transfer ownership of the so called "Chief Sachem Night Hawk property (a.k.a. Philip Peckham property)", a significant Narragansett Indian Tribal cultural property located a 4553 South County Trail (Tax Assessor's Plat 22, Lot 9-1) in the Town of Charlestown, Rhode Island to the Narragansett Indian Tribal Historic Preservation Office for and/on behalf of the Narragansett Indian Tribe. Appropriate covenants that preserve the property and its cultural resources in perpetuity shall be included in the deed for said property. d. RIDOT and FHWA shall reallocate the sum of $450,000 currently available for the so-called "Crandall Farm Transportation Enhancement Project" toward the acquisition costs delineated in paragraphs (a),(b) and (c) above provided that the Archaeological rditigation Agreement for the Crandall Farm Transportation Enhancement Project (attached hereto as Exhibit A) is rescinded by all the parties in accordance herewith. Pursuant to 36 CFR §800.6(c)(7), the signatories of the 2011 PA agree that it is appropriate to amend the 2011 PA in order to revise Stipulation No. 3 in accordance herewith. All other Stipulations set forth in the 2011 PA shall remain unchanged. SIGNATORIES: FEDERAL HIGHWAY AD STRATION By: -~ ~~ Date: l ! ~~ 2n 13 Division Admin' for Rhode Island Division Office-Federal Highway Administration RHODE LSLAND STAT TORIC PRESERVATION OFFICER By: Date: 4~"t~ Edward F. Sanderson Rhode Island State Historic Preservation Officer 2 Case 1:17-cv-00125-S-LDA Document 18-2 Filed 06/09/17 Page 2 of 3 PageID #: 113 Amendment No. 1 to Programmatic Agreement Providence Viaduct Bridge No. 578 Replacement Project NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION OFFICER BY' ~/~-~'--- Date:_/_Z7~-~ 20~ Z„ rown gansett Indian Tribal Historic Preservation Officer RHODE ISLAND DTPARTMENT OF TRANSPORTATION Michae~i wi Director Rhode I nd ep ent of Transportation Date: \ 11 13 Case 1:17-cv-00125-S-LDA Document 18-2 Filed 06/09/17 Page 3 of 3 PageID #: 114