Background
The State of Rhode Island reconstructed a bridge on Interstate ninety-five in Providence, which disturbed the Providence Covelands Archaeological District, a site of cultural and religious significance to the Narragansett Indian Tribe. The Federal Highway Administration determined the project would have adverse effects and negotiated mitigation measures. After an initial agreement failed due to a dispute over tribal sovereign immunity, the Administration executed a Second Programmatic Agreement that offered preservation covenants and educational resources instead of land transfers. The Tribe challenged the agreement, arguing it was not adequately consulted and that its Historic Preservation Officer should have been a required signatory.
The court’s reasoning
The court found that the Tribe had standing because it alleged a procedural injury traceable to the Agency’s failure to consult, which was redressable by further consultation. On the merits, the court held that the Tribe was not a required signatory under the implementing regulations because the project did not affect tribal lands. The court further determined that the Agency adequately consulted with the Tribe, as evidenced by multiple letters, conference calls, and the Agency’s willingness to modify the agreement based on the Tribe’s objections. The court also rejected the arbitrary and capricious claim, finding the Agency provided a reasoned explanation for changing its mitigation strategy.
The Preservation Act mandates that a Federal agency shall consult with any Indian tribe that attaches religious and cultural significance to historic property threatened by a federal undertaking.
54 U.S.C. §§ 302706(b), 306108
What it means going forward
Federal agencies are not required to include Tribal Historic Preservation Officers as mandatory signatories on programmatic agreements when the historic properties involved are located off tribal lands. Agencies must still engage in meaningful government-to-government consultation, but they are not obligated to adopt specific mitigation outcomes or secure tribal consent to execute the agreement.