UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NARRAGANSETT INDIAN TRIBE, : 

 : 

Plaintiff, : Civil Action No.: 22-2299 (RC)

 : 

 v. : Re Document No.: 42, 43 

 : 

SHAILEN BHATT, Administrator, : 

Federal Highway Administration, : 

 : 

Defendant. : 

MEMORANDUM OPINION

DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S CROSSMOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

 The Narragansett Indian Tribe, acting by and through the Narragansett Indian Tribal 

Historic Preservation Office (the “Tribe”), brings this action against Shailen Bhatt, in his official 

capacity as Administrator of the Federal Highway Administration (the “Agency”) challenging 

the Agency’s actions in connection with a highway bridge-building project in Providence, Rhode 

Island. The National Historic Preservation Act (“NHPA” or the “Act”), codified at 54 U.S.C. 

§ 300101 et seq., requires that federal agencies “take into account” the preservation of historic 

sites when implementing federal projects. The Tribe contends that the Agency violated the 

Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. by failing to comply with the 

requirements set forth in the NHPA. The parties have now filed respective motions for summary 

judgment. See generally Pl.’s Mot. Summ. J. (“Pl.’s MSJ”), ECF No. 42-1; Def.’s Cross Mot. 

Summ. J. (“Def.’s Cross-MSJ”), ECF No. 43-1. For the reasons explained below, the Court 
2 

denies the Tribe’s motion for summary judgment and grants the Agency’s cross-motion for 

summary judgment. 

II. BACKGROUND1

A. Statutory and Regulatory Framework 

The NHPA requires that federal agencies “take into account” the preservation of historic 

sites when implementing federal projects. 54 U.S.C. § 306108 (requiring that any federal agency 

“having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking 

. . . prior to the approval of the expenditure of any Federal funds on the undertaking . . . shall 

take into account the effect of the undertaking on any historic property.”). This requirement is 

often referred to as the “Section 106” process. See 36 C.F.R. §§ 800.3 to 800.13 (titled “the 

Section 106 Process”). The Advisory Council on Historic Preservation (the “Advisory Council”) 

is the agency responsible for issuing regulations that implement the Section 106 process. 36 

C.F.R. § 800.2(b); see United Keetoowah Band of Cherokee Indians in Okla. v. FCC, 933 F.3d 

728, 734 (D.C. Cir. 2019). Those regulations, codified at 36 C.F.R. § 800 et seq., lay out the 

steps an agency must take to comply with the NHPA’s requirement to “take into account the 

effect of the undertaking on any historic property.” 54 U.S.C. § 306108. 

The NHPA’s implementing regulations explain that “[t]he [S]ection 106 process seeks to 

accommodate historic preservation concerns with the needs of Federal undertakings through 

consultation among the agency official and other parties with an interest in the effects of the 

undertaking on historic properties, commencing at the early stages of project planning.” 36 

C.F.R. § 800.1(a). Section 106’s requirements may be satisfied either by a standard consultation 

1

 This section draws heavily on the background section in Narragansett Indian Tribe by 

& through Narragansett Indian Tribal Historic Pres. Off. v. Pollack, No. 22-cv-2299, 2023 WL 

4824733, at *1 (D.D.C. July 27, 2023) (“Narragansett 2023”). 
3 

procedure or certain permitted alternatives called “program alternatives.” See 36 C.F.R. 

§§ 800.3–800.16. 

As relevant here, one program alternative to the standard Section 106 process is the 

development of a “programmatic agreement.” See 36 C.F.R. § 800.14(b). Programmatic 

agreements “govern the implementation of a particular program or the resolution of adverse 

effects from certain complex project situations or multiple undertakings.” Id. Before 

implementing a programmatic agreement, the federal agency must consult with appropriate 

stakeholders, usually including state historical preservation officers and Indian tribes. Id.

§§ 800.14(b)(2)(i), (f). 

 Programmatic agreements take effect when executed by the “appropriate” stakeholders. 

Id. § 800.14(b)(2)(iii). For instance, for a programmatic agreement to take effect on tribal lands, 

“the tribe, or a designated representative of the tribe” must be a “a signatory to the agreement” 

before the agreement can be executed. Id. Relatedly, the “[t]ermination [of a programmatic 

agreement] by [a tribe] shall only terminate the application of a regional programmatic 

agreement within the jurisdiction of the [tribe].” Id. “Compliance with the procedures 

established by an approved programmatic agreement satisfies the agency’s section 106 

responsibilities for all individual undertakings . . . covered by the agreement.” Id. An approved 

programmatic agreement satisfies an agency’s Section 106 responsibilities “until it expires or is 

terminated by the agency . . . or [the Advisory Council].” Id.

Section 106 does not dictate substantive results. Instead, Section 106 is a procedural 

statute requiring a federal agency to take certain steps prior to beginning a project. See Nat’l 

Min. Ass’n v. Fowler, 324 F.3d 752, 755 (D.C. Cir. 2003) (“An essentially procedural statute, 

[S]ection 106 imposes no substantive standards on agencies, but it does require them to solicit 
4 

[the Advisory Council’s] comments and to take into account the effect of [their] undertakings.” 

(cleaned up)); United Keetoowah Band of Cherokee Indians, 933 F.3d at 734 (“The Section 106 

process requires that an agency ‘consider the impacts of its undertaking’ and consult various 

parties, not that it necessarily ‘engage in any particular preservation activities.’” (citation 

omitted)). Thus, provided that an agency fulfills the requirements set forth by Section 106 and 

its attendant regulations, the Agency may choose among reasonable alternatives to achieve its 

desired ends. See generally 36 C.F.R. §§ 800.14(f)(2), 800.16(f) (requiring agencies to consult 

and “where feasible” seek agreement among stakeholders, but not requiring agency to adopt any 

specific result). 

B. Factual and Procedural History

The Court assumes familiarity with the procedural history described in Narragansett 

2023, 2023 WL 4824733, and will relate only those details that are relevant at this stage in the 

proceedings. The facts leading to this case began when the Agency sought to provide funding to 

the State of Rhode Island (the “State” or “Rhode Island”) for the replacement of the I-95 Viaduct 

Bridge located in Providence, Rhode Island. See id. at *2; see also Administrative Record 

(“AR”) at 000968, ECF No. 50.2

 To comply with its obligations under the NHPA, the Agency 

investigated whether the bridge’s construction would affect historic properties. See Narragansett 

2023, 2023 WL 4824733, at *2. The Agency determined that the construction would result in 

adverse effects to historic properties in the Providence Covelands Archaeological District and

decided to pursue a programmatic agreement to mitigate the harms to the historic properties. Id. 

As mitigation for the harmful effects of the bridge construction, the agency’s programmatic 

2

 For ease of reference, the Court cites to the Administrative Record, ECF Nos. 49 and 50 

using the abbreviation “AR” followed by the bates number at the bottom of each page of the 

Administrative Record.
5 

agreement required Rhode Island to transfer to the Tribe ownership of three parcels of land that 

had historic, cultural, and religious significance to the Tribe (the “Mitigation Properties”). Id. 

Construction began on the I-95 Viaduct Bridge project in June 2013. Id. But after the 

southbound lane of the bridge was constructed, the State reneged on the programmatic 

agreement. Id. at *2–3. In short, Rhode Island refused to transfer the Mitigation Properties to 

the Tribe unless the Tribe agreed to waive its sovereign immunity with respect to the Mitigation 

Properties. Id. Although the Agency attempted to convince Rhode Island to transfer the 

Mitigation Properties without the Tribe’s waiver of sovereign immunity, the Agency was 

ultimately unable to force the State to comply with the terms of the programmatic agreement. 

See AR at 001001. The Court notes that the programmatic agreement did not require the Tribe to

waive its sovereign immunity and, as a sovereign nation, the Tribe justifiably refused to do so.3

 

Confronted with this impasse, the Agency eventually terminated the programmatic agreement 

even though construction on the southbound lane had already been completed. See AR at 

001001. 

After receiving and considering comments from the Advisory Council, the Agency

decided to reinitiate the Section 106 consultation process with respect to the I-95 Viaduct Bridge 

construction project and draft a new programmatic agreement. See AR at 001001. When 

drafting the second programmatic agreement, the Agency outlined new mitigation items to 

address the adverse effects of the construction project. See AR at 000970. In lieu of transferring 

3

 The NHPA regulations specify that “Consultation with Indian tribes should be 

conducted in a sensitive manner respectful of tribal sovereignty,” “[n]othing in this part alters, 

amends, repeals, interprets, or modifies tribal sovereignty, any treaty rights, or other rights of an 

Indian tribe, or preempts, modifies, or limits the exercise of any such rights,” and that 

“[c]onsultation with an Indian tribe must recognize the government-to-government relationship 

between the Federal Government and Indian tribes.” See 36 C.F.R. § 800.2(c)(2)(ii)(B)–(C).
6 

the Mitigation Properties to the Tribe for preservation, the second programmatic agreement 

proposed that Rhode Island would implement an academic-level historic context document about 

the Tribe, a video documentary about the Tribe, Section 106 training for the Tribe, a teaching 

curriculum for Rhode Island public schools about the Tribe, and that the State would possess and 

preserve the Mitigation Properties itself. See AR at 000970–000976. 

The Tribe found these mitigation measures offensive and unacceptable and therefore

objected vehemently to the proposed second programmatic agreement. See, e.g., AR at 000272–

000273. In the Tribe’s view, it was insulting for the Agency to suggest that the State’s 

facilitation of a documentary and academic study of the Tribe could be appropriate mitigation 

because the Tribe was already aware of its own history. See Pl.’s MSJ at 7 n.4. The Tribe also 

found the suggestion that the State provide Section 106 training to be insulting given the Tribe’s 

lengthy experience with the Section 106 process. Id. Nevertheless, the Agency ultimately

concluded that these mitigation measures were appropriate to address the harms to the historic 

properties affected by the bridge construction project and finalized a second programmatic 

agreement with these mitigation measures. See AR at 000970–000976. The Tribe ultimately 

chose not to sign onto the second programmatic agreement. See AR at 000970–000976. 

After the second programmatic agreement was executed, the Tribe sued the Agency and 

the State of Rhode Island. See generally Compl., ECF No. 1. Earlier in this litigation the 

defendants moved to dismiss. See generally State of Rhode Island Mot. Dismiss, ECF No. 18; 

Agency Mot. Dismiss, ECF No. 31. The Court granted Rhode Island’s motion to dismiss for 

lack of personal jurisdiction and granted in part and denied in part the Agency’s motion to 

dismiss based on standing. See Narragansett 2023, 2023 WL 4824733. In particular, the Court 

previously held that the Tribe lacked standing to challenge the Agency’s termination of the initial 
7 

programmatic agreement but held that the Tribe had “standing to pursue its claim as to the 

execution of the second [programmatic agreement].” See id. at *9. The Tribe and the Agency

have now filed respective motions for summary judgment and their motions are ripe for review. 

III. LEGAL STANDARD

Summary judgment is ordinarily appropriate when the evidence demonstrates that “there 

is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). But when, as here, the 

Court reviews a final agency action under the Administrative Procedure Act (“APA”), the 

standard set forth in Rule 56(a) does not apply. See Roberts v. United States, 883 F. Supp. 2d 56, 

62–63 (D.D.C. 2012). Instead of reviewing the record for disputed facts that would preclude 

summary judgment, the function of the district court is a more limited one: “to determine 

whether or not as a matter of law the evidence in the administrative record permitted the agency 

to make the decision it did.” Kaiser Found. Hosps. v. Sebelius, 828 F. Supp. 2d 193, 198 

(D.D.C. 2011) (internal quotation marks and citations omitted). This standard of review is 

“narrow,” and a court applying it “is not to substitute its judgment for that of the agency.” Motor 

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 (1983); see 

also Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (when assessing 

motion for summary judgment in APA case “the district judge sits as an appellate tribunal”). 

Under the APA, a reviewing court must set aside agency action that is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law” or undertaken 

“without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). An agency’s 

action is arbitrary and capricious if it “has relied on factors which Congress has not intended it to 

consider, entirely failed to consider an important aspect of the problem, offered an explanation 

for its decision that runs counter to the evidence before the agency, or is so implausible that it 
8 

could not be ascribed to a difference in view or the product of agency expertise.” Desa Grp., 

Inc. v. U.S. SBA., 190 F. Supp. 3d 61, 68 (D.D.C. 2016). This standard requires the agency to 

“examine the relevant [evidence]” and “articulate a satisfactory explanation for its action[,] 

including a rational connection between the facts found and the choice made.” State Farm, 463 

U.S. at 43 (internal quotation marks omitted). But the agency’s explanation need not be “a 

model of analytic precision to survive a challenge.” Coburn v. McHugh, 679 F.3d 924, 934 

(D.C. Cir. 2012) (internal quotation marks omitted). Courts “must uphold a decision of less than 

ideal clarity if the agency’s path may reasonably be discerned.” Am. Radio Relay League, Inc. v. 

FCC, 524 F.3d 227, 248 (D.C. Cir. 2008) (Kavanaugh, J., concurring in part) (emphasis added) 

(internal quotation marks omitted). 

Agency action is also considered arbitrary and capricious if the Agency fails to comply 

with its relevant regulations. See Nat’l Env't Dev. Assoc.’s Clean Air Project v. E.P.A., 752 F.3d 

999, 1009 (D.C. Cir. 2014). And courts “will set aside agency actions that are adopted ‘without 

observance of procedure required by law.’” Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 

781 (9th Cir. 2006); Pharm. Rsch. & Manufacturers of Am. v. Fed. Trade Comm’n, 44 F. Supp. 

3d 95, 113 (D.D.C. 2014) (reviewing court may hold unlawful and set aside agency action 

undertaken “without observance of procedure required by law” (quoting 5 U.S.C. § 706(2)(D)).

IV. ANALYSIS

 The arguments raised in the parties’ cross motions for summary judgment involve two 

primary disputes: (1) whether the Tribe has standing to bring this suit against the Agency, and 

(2) whether the Agency complied with relevant statutory and regulatory requirements in crafting 

and executing the second programmatic agreement. Because standing is a jurisdictional 

question, the Court addresses it first. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 
9 

(1998); see also McBride v. Mnuchin, No. 19-cv-60, 2019 WL 3323412, at *2 (D.D.C. July 24, 

2019) (“Before addressing the merits of a case, a court must confirm that it has subject matter 

jurisdiction.” (internal citation omitted)). 

A. Standing

The Agency argues that the Tribe lacks standing because the Tribe cannot show that the 

Agency caused its injury or that its injury is redressable. See Def.’s Cross-MSJ at 15. Standing 

is “an essential and unchanging part of the case-or-controversy requirement of Article III,” Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 560 (1992), and therefore is “a necessary ‘predicate to any 

exercise of [Article III courts’] jurisdiction.’” Dominguez v. UAL Corp., 666 F.3d 1359, 1361 

(D.C. Cir. 2012) (quoting Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en 

banc)). “[E]ach element of Article III standing must be supported in the same way as any other 

matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of 

evidence required at the successive stages of the litigation.” Bennett v. Spear, 520 U.S. 154, 

167–68 (1997) (quotation marks and citation omitted). Therefore, the Court must ensure that the 

Tribe has standing at the summary judgment stage even if the Court previously concluded that 

the Tribe had standing at the motion to dismiss stage. See Lujan, 504 U.S. at 561. In other 

words, at the summary judgment stage “the plaintiff can no longer rest on . . . ‘mere 

allegations,’” but must instead point to specific facts that are acceptable as evidence at this stage 

of the litigation to prove it has standing. Id. (quotation marks and citation omitted). 

As relevant here, one component of Article III standing is traceability. See Hawkins v. 

Haaland, 991 F.3d 216, 224 (D.C. Cir. 2021). “To establish traceability in a procedural-injury 

case, an adequate causal chain must contain at least two links: (1) a connection between the 

omitted procedure and a government decision and (2) a connection between the government 
10 

decision and the plaintiff’s particularized injury.” Id. (quotation marks and citation omitted); 

Eagle Cnty. v. Surface Transp. Bd., 82 F.4th 1152, 1169 (D.C. Cir. 2023) (holding that party 

asserting procedural injury “must show both (1) that [its] procedural right has been violated, and 

(2) that the violation of that right has resulted in an invasion of [its] concrete and particularized 

interest” (quotation marks and citation omitted)). While a Plaintiff need not demonstrate that 

using the appropriate procedure “would”—as opposed to “could—lead to a different government 

decision,” see Ctr. for Biological Diversity v. EPA, 56 F.4th 55, 68 (D.C. Cir. 2022) (“As to 

causation, a party asserting procedural injury never has to prove that if he had received the 

procedure the substantive result would have been altered.” (quotation marks and citation 

omitted)); Narragansett 2023, 2023 WL 4824733, at *9 (“[I]t is well-established that the 

plaintiff is not required to show that but for the alleged procedural deficiency the agency would 

have reached a different substantive result.” (cleaned up)), a plaintiff must demonstrate that the 

government’s “action was the cause of some redressable injury to the plaintiff,” Hawkins, 991 

F.3d at 225. 

A separate and essential component of Article III standing is redressability. “The 

redressability requirement is relaxed for procedural-rights plaintiffs.” Eagle Cnty., 82 F.4th at 

1171. “Typically, redressability is absent only when the Court’s decision would have ‘no real 

effect’ on the plaintiff's injury.” Cherokee Nation v. United States Dep’t of the Interior, 643 F. 

Supp. 3d 90, 106 (D.D.C. 2022). To satisfy the redressability requirement, a plaintiff must show 

that “correcting the alleged procedural violation could . . . change the substantive outcome in the 

plaintiff’s favor,” but a plaintiff need not show “that it would effect such a change.” 

Narragansett Indian Tribal Historic Pres. Office v. FERC, 949 F.3d 8, 13 (D.C. Cir. 2020) 

(emphasis original). Even if there were a “serious possibility” that the Agency would not change 
11 

its decision if it followed the appropriate process, so long as “there remains at least the 

possibility that it could reach a different conclusion,” the Tribe’s injury is redressable. See Eagle 

Cnty., 82 F.4th at 1171. 

1. Traceability

The Court starts with whether the Tribe’s injury is traceable to the Agency’s actions.

4

 

Here, the Tribe claims a procedural injury from the Agency’s failure to consult it pursuant to 36 

C.F.R. § 800 et seq, and it argues that this procedural injury caused harm to the Tribe’s concrete 

interests in the form of damage to historic, cultural, and religious tribal property. See Pl.’s MSJ 

at 14 (arguing that Agency’s “failure to adequately consult with the Tribe again resulted in 

unmitigated damage to the Viaduct properties affecting concrete interest of the Tribe.”). When 

assessing causation, the Court “must assume” that the Tribe “will prevail on the merits.” Eagle 

Cnty., 82 F.4th at 1170. 

Assuming that the Tribe is correct on the merits that the Agency unlawfully failed to

consult with and obtain the Tribe’s consent prior to the execution of the second programmatic 

4

 Neither party appears to question that the Tribe has an injury-in-fact due to the harm to 

the historic, cultural, and religious properties affected by the I-95 Viaduct Bridge project. And, 

as it concluded in Narragansett 2023, the Court concludes once again that the Tribe has a 

concrete injury—“namely, harm from improper mitigation to ‘historic, tribal properties.’” 2023 

WL 4824733, at *9; c.f. WildEarth Guardians v. Jewell, 738 F.3d 298, 305–06 (D.C. Cir. 2013) 

(finding environmental plaintiffs’ alleged procedural injury from a deficient environmental 

impact report concerning a land lease project sufficiently tethered to “concrete aesthetic and 

recreational interests” in the land subject to increased “local air, water, and land pollution” from 

planned development pursuant to the leases); c.f. Pit River Tribe, 469 F.3d at 779 (holding that 

tribe had standing because it used historic property in question for cultural and religious 

ceremonies); Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 301 F. Supp. 3d 50, 61 

(D.D.C. 2018) (averments of tribe members’ past use of an area combined with averments that a 

federal undertaking would interrupt such use was sufficient to establish injury in fact); Ctr. for 

Biological Diversity v. Mattis, 868 F.3d 803, 816 (9th Cir. 2017) (“A concrete interest implicated 

by a procedural requirement may reflect aesthetic, conservational, and recreational values and 

does not need to be an economic harm.” (quotation marks and citation omitted)). 
12 

agreement, that failure “was plainly connected to” the Agency’s ultimate decision to execute the

second programmatic agreement and the mitigation measures therein. Id. at 1170–71 (cleaned 

up); see also Havasupai Tribe v. Provencio, 906 F.3d 1155, 1162 n. 3 (9th Cir. 2018) 

(concluding that tribe had standing assuming that agency failed to comply with Section 106 

procedure and that failure caused agency decision approving activities that harmed tribe’s 

religious and cultural interests); Mattis, 868 F.3d at 817 (“[T]he question is whether the action 

the Government took . . . satisfied NHPA.”). Had the Agency been required to obtain the Tribe’s 

consent and conduct additional consultation with the Tribe before executing the second 

programmatic agreement, as the Tribe contends was required, the Agency could have arrived at a 

different substantive decision. See Eagle Cnty., 82 F.4th at 1169. For instance, the Agency 

could have determined that alternative mitigation was appropriate to address the harm to the 

historic sites. See Pl.’s Reply at 15–16, ECF No. 46 (arguing that the Agency did not consider 

alternative mitigation options such as preservation of “other historic tribal properties” or funding 

to “restore current historic properties”); see also AR at 000136 (Agency referencing option of 

providing the Tribe funds so that the Tribe could “develop their own methods of mitigation for 

the impacts of the Providence Viaduct construction”). Accordingly, the Court concludes—for 

purposes of assessing standing—that the Tribe has a procedural injury in the form of the 

Agency’s failure to consult it as required by the NHPA’s implementing regulations. 

The second question is whether the Tribe can connect the Agency’s “substantive 

decision” regarding the second programmatic agreement “to [the Tribe’s] particularized injury.” 

Eagle Cnty., 82 F.4th at 1169. Although the Tribe’s briefing is not a model of clarity on this 

issue, the Tribe sufficiently demonstrates that the Agency’s substantive decision is connected to 

its concrete injury. In particular, the Agency’s substantive decision to adopt the mitigation items 
13 

in the second programmatic agreement resulted in the allegedly inadequate mitigation of the 

harm to the Tribe’s interest in the historic properties affected by the construction of the I-95 

Viaduct Bridge. See AR at 000270, 000970. Throughout the administrative record, the Tribe 

informed the Agency that the mitigation measures adopted by the agency in the second 

programmatic agreement do not mitigate the harm caused by the bridge’s construction. See, e.g., 

AR at 000273 (“To say these proposed mitigation items do not respond to the severity of the 

adverse effects that the Viaduct Project has already had on, and will have on the culturally and 

religiously significant Providence Coveland sites is an understatement.”); AR at 000875, 000882. 

“The [Tribe] therefore demonstrates the second causal link, because there is a substantial 

probability that” the bridge’s construction without appropriate mitigation due to the insufficient 

consultation negatively affected the Tribe’s interest in the preservation of its historical, cultural, 

and religious “resources and historic properties.” Eagle Cnty., 82 F.4th at 1171. 

2. Redressability

The Tribe can also show redressability. This is so because the Tribe adequately 

demonstrates that correcting the alleged failure to consult with the Tribe could lead the Agency 

to “reach a different conclusion.” Id.; Narragansett 2023, 2023 WL 4824733, at *9 (holding that 

redressability requires that “correcting the alleged failure to consult with the Tribe could change 

the substance of the second [programmatic agreement’s] mitigation measures”); see also 

Havasupai Tribe, 906 F.3d at 1162 (concluding that tribe’s injury could be redressed by setting 

aside agency approval that harmed tribe’s religious and cultural interest in property); Mattis, 868 

F.3d at 818 (“Plaintiffs alleging procedural injury can often establish redress[a]bility with little 

difficulty, because they need to show only that the relief requested—that the agency follow the 

correct procedures—may influence the agency’s ultimate decision of whether to take or refrain 
14 

from taking a certain action.” (citation omitted)). If the Court requires the Agency to consult 

further and obtain the Tribe’s consent before executing the second programmatic agreement, it 

appears evident that those requirements could lead the Agency to adopt different mitigation 

measures. See Narragansett 2023, 2023 WL 4824733, at *9; see also Pit River, 469 F.3d at 779 

(concluding that tribe’s injury from agencies’ failure to follow appropriate process was 

redressable because court could hold the agencies’ process to be inadequate and “the agencies 

would have to correct the decision-making process.” (cleaned up)); Wishtoyo Found. v. United 

States Fish & Wildlife Serv., No. 19-cv-03322, 2019 WL 8226080, at *7 (C.D. Cal. Dec. 18, 

2019) (concluding that injury was redressable because “[g]iven the detailed procedural 

requirements imposed by the NHPA’s implementing regulations, consulting with interested 

parties . . . could certainly influence the [Agency’s] decision”). For instance, the Agency could 

decide that alternative properties should be managed by the Tribe as mitigation, that the Tribe 

should receive funding to develop its own mitigation measures, or that some other form of 

mitigation is appropriate. After all, the administrative record reveals that the Agency previously 

considered alternative mitigation, such as providing the Tribe with funds so that the Tribe could 

“develop their own methods of mitigation for the impacts of the Providence Viaduct 

construction.” AR at 000136. And the fact that the State refused to transfer the Mitigation 

Properties does not indicate that other properties could not be managed by the Tribe or that 

alternative mitigation strategies are not possible. 

The Agency counters that the Tribe cannot demonstrate redressability because it has not 

identified mitigation measures that could redress the Tribe’s harm. See Def.’s Cross-MSJ at 17–

19. In particular, the agency says that (1) it could not cause the transfer of the properties that the 

Tribe wants transferred, (2) the properties the Tribe wants to preserve are already being 
15 

preserved by the State and the Tribe has not demonstrated that it would do a better job of 

preservation than the State, (3) the Tribe does not suggest other properties for preservation, and 

(4) the preservation of other properties would not mitigate the harm to the historic properties 

affected by the building of the I-95 Viaduct Bridge. See id.

To begin with, the transfer of the Mitigation Properties is not the only alternative 

mitigation possible, so the fact that the Agency cannot cause the transfer of those properties is 

irrelevant. See Narragansett 2023, 2023 WL 4824733, at *9 (explaining that possible mitigation 

measures are not a “closed universe”). As explained above, the Tribe must simply show that 

“correcting the alleged procedural violation could still change the substantive outcome in the 

[Tribe’s] favor.” Narragansett, 949 F.3d at 13. So long as “there remains at least the possibility 

that [the Agency] could reach a different conclusion,” the Tribe’s injury is considered 

redressable. See Eagle Cnty., 82 F.4th at 1171. Here, alternative mitigation could include a 

greater role for the Tribe in preserving the historic properties, even if the State maintains title. 

Alternative mitigation could also include funding for the Tribe to independently pursue its own 

mitigation measures. See AR at 000136 (Agency considering funding Tribe to “develop their 

own methods of mitigation for the impacts of the Providence Viaduct construction.”). Contrary 

to the Agency’s contention, these options are not speculative; their adoption would mitigate the 

Tribe’s injury caused by the I-95 Viaduct Bridge construction because they would provide the 

Tribe with some additional means of preserving its cultural and religious history. And those 

mitigation options show that “correcting the alleged procedural violation could still change the 

substantive outcome in the [Tribe’s] favor.” Narragansett, 949 F.3d at 13. 

As for the Agency’s argument that the Mitigation Properties are already being preserved

and that transferring these or other properties to the Tribes is unnecessary, see Def.’s Cross-MSJ 
16 

at 17; Def.’s Reply at 8, ECF No. 48, the administrative record reflects that there is a substantive

difference between the State’s management of those properties and the Tribe’s management. As 

explained by the Advisory Council, “[g]iven . . . the tribe’s ancestral ties to these properties, the 

tribe is uniquely positioned to interpret these properties and ensure they are maintained and 

protected in a way that ensures their long-term preservation.” See AR at 00175. 

Additionally, the fact that the Tribe has not suggested other properties for preservation is 

not dispositive; the Tribe need only show that correcting the alleged procedural violation could 

change the Agency’s decision in its favor. See Narragansett, 949 F.3d at 13. As the Court 

explained in its earlier opinion, “the Tribe need not show that consultation would result in a 

better outcome, only that it could.” Narragansett 2023, 2023 WL 4824733, at *9 n.8. Because 

the preservation of the Mitigation Properties is not the “only theoretically plausible measure[]

such that reopening consultation with the Tribe could not possibly affect the outcome, the 

persuasiveness of the Tribe’s arguments for or against a particular measure is irrelevant.” Id. 

Indeed, the Agency previously considered preservation of at least one other property to mitigate 

the effects of the bridge project. See AR at 001330 (determining that “Site of the Great Swamp 

Fight Memorial/Monument” was “no longer viable to acquire”). Relatedly, the Agency’s 

argument that the preservation of one property cannot remedy harm to another is misguided. See

Def.’s Cross-MSJ at 17; Def.’s Reply at 4. The Agency’s argument runs counter to the entire 

framework of the Section 106 process, which is designed to remedy harm caused to historic 

properties by providing mitigation measures such as the preservation of alternative historic sites. 

Even if the mitigation provided through the Section 106 process does not undo the damage to the 

original historic property, it can remedy that damage by preserving other historic sites; and that 

“ability to effectuate a partial remedy satisfies the redressability requirement.” Uzuegbunam v. 
17 

Preczewski, 592 U.S. 279 (2021) (internal quotation omitted). The harm to the Tribe here is the 

loss of a historical, cultural, and religious resource; the preservation of a different historical, 

cultural, and religious resource can mitigate, if not completely rectify, that harm. See Cherokee 

Nation, 643 F. Supp. 3d at 106 (“[T]he likelihood of even partial redress is enough to support 

standing.”). And the fact that the Agency itself suggested the preservation of the Mitigation 

Properties to mitigate harms to historic properties affected by the bridge construction 

demonstrates that preservation of other properties can be used to at least mitigate, if not 

completely redress those harms. Accordingly, the Court concludes that the Tribe has 

demonstrated that it has standing with respect to its claim against the Agency for the execution of 

the second programmatic agreement. 

B. Section 106 

The crux of this case turns on the requirements of Section 106 of the NHPA and its 

implementing regulations. As explained above, Section 106 mandates that federal agencies 

undertake a review process for all federally funded and permitted projects that will impact 

certain historic sites. The Tribe contends that the Agency violated Section 106’s requirements in 

two related ways. First, the Tribe argues that the Agency did not sufficiently consult with the 

Tribe as required by Section 106. See Pl.’s MSJ at 2, 14–16, 22. Second, the Tribe contends that 

the Agency did not obtain the Tribe’s consent as a signatory to the second programmatic 

agreement before executing that agreement. See id. at 6–7, 14–15, 30–31, 34. The Court will 

address the Tribe’s signatory requirement argument first. 

1. Signatory Requirement 

The Tribe appears to argue that it was a required signatory party to the second 

programmatic agreement and that under the NHPA’s implementing regulations the second 
18 

programmatic agreement should not have been executed without the Tribe’s consent. See Pl.’s 

MSJ at 3, 6–7, 10, 14–16, 34; Pl.’s Reply at 4–5, 7–8. The Tribe misunderstands the NHPA 

regulations’ requirements for a programmatic agreement as it applies to the Agency’s decisions 

regarding mitigation of the I-95 Viaduct Bridge project. 

Generally speaking, “Section 106 of the Historic Preservation Act is a ‘stop, look, and 

listen’ provision.” Eagle Cnty., 82 F.4th at 1189. That said, the Tribe is correct that 

programmatic agreements, which are one alternative to the standard Section 106 process, do

require execution by certain stakeholders. See 36 C.F.R. § 800.14(b)(2)(iii) (“The programmatic 

agreement shall take effect when executed by the Council, the agency official and the 

appropriate [State Historic Preservation Officers]/[Tribal Historic Preservation Officers].”). But 

the required stakeholders for the execution of a programmatic agreement depend on the location 

of the property mitigated by the programmatic agreement. In particular, both the NHPA’s 

implementing regulations as well as the Advisory Council’s guidelines clarify that tribal 

approval is required for the execution of a programmatic agreement only when the affected

historic site is located on tribal lands. 

The Court starts with the text of 36 C.F.R. § 800.14(b)(2)(iii). The first sentence of that 

provision states that a “programmatic agreement shall take effect when executed by the Council, 

the agency official and the appropriate [State Historic Preservation Officers]/[Tribal Historic 

Preservation Officers] when the programmatic agreement concerns a specific region.” 36 C.F.R. 

§ 800.14(b)(2)(iii) (emphasis added). The first sentence’s reference to a “specific region” 

indicates that the location of the programmatic agreement governs whether the appropriate party 

or parties to a specific programmatic agreement are State or Tribal Historic Preservation

Officers. Id. The second sentence of the provision further sheds light on who the ”appropriate” 
19 

party or parties are—whether that be a State Historic Preservation Officer or a Tribal Historic 

Preservation Officer. This is so because the second sentence explains that “[a] programmatic 

agreement shall take effect on tribal lands only when the [Tribal Historic Preservation Officer], 

Indian tribe, or a designated representative of the tribe is a signatory to the agreement.” Id. § 

800.14(b)(2)(iii) (emphasis added). The regulation’s prohibition on the execution of 

programmatic agreements on tribal land without a tribal representative as a signatory logically

indicates that a tribal signatory is not required where the programmatic agreement does not take 

effect on tribal land. See Nasdaq Stock Mkt. LLC v. SEC, 38 F.4th 1126, 1136–37 (D.C. Cir. 

2022) (applying the expressio unius canon of construction and explaining that “where the context 

shows that the draftsmen’s mention of one thing, like a grant of authority, does really 

necessarily, or at least reasonably, imply the preclusion of alternatives, the canon is a useful 

aide” (cleaned up)). Under the expressio unius canon, the regulation’s expression of an explicit 

limitation on tribal land implies an absence of that limitation on non-tribal land. 

Relatedly, if—as the Tribe contends—a tribe’s role as a signatory were required any time 

a programmatic agreement had the potential to affect “historic properties of religious and cultural 

significance to an Indian tribe,” 36 C.F.R. § 800.14(b)(2)(i), the explicit prohibition on the 

execution of agreements when a programmatic agreement takes place on tribal lands would be 

surplusage. This is so because a Tribe’s agreement would already be required whenever a 

programmatic agreement took affect on tribal land, and therefore, the second sentence would 

have no additional affect. If possible, “a statute ought, upon the whole, to be so construed that, if 

it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” 

Nasdaq, 38 F.4th at 1137 (cleaned up). Here, it is possible to avoid making the second sentence 

of the statute superfluous by interpreting the regulation to require a tribal signatory only when 
20 

the programmatic agreement affects tribal land. Accordingly, both the expressio unius canon 

and the surplusage canon lead to the conclusion that the regulation does not require a tribal

signatory where a programmatic agreement does not affect tribal land. And as the D.C. Circuit 

has observed, “the canon against surplusage and the expressio unius canon are at their zenith 

when they apply in tandem, as they appear to do here.” Id.(internal quotation marks and citation 

omitted).

This reading is further bolstered by the last two sentences of § 800.14(b)(2)(iii). The 

provision specifies that the termination of a programmatic agreement “by an individual [State 

Historic Preservation Officer] / [Tribal Historic Preservation Officer] shall only terminate the 

application of a regional programmatic agreement within the jurisdiction” of that officer. 36 

C.F.R. § 800.14(b)(2)(iii). This sentence means that a tribe only has authority to terminate an 

agreement within the tribe’s jurisdiction—i.e., on tribal lands. By the same token, if a tribe may 

only terminate a programmatic agreement on tribal lands, it stands to reason that a tribe is only 

required for the execution of a programmatic agreement in the first instance if that agreement 

pertains to tribal lands. Relatedly, the final sentence of § 800.14(b)(2)(iii) specifies that if a 

Tribal Historic Preservation Officer “assumes the responsibilities of a [State Historic 

Preservation Officer] pursuant to section 101(d)(2) of the act and the [State Historic Preservation 

Officer] is signatory to [the] programmatic agreement, the [Tribal Historic Preservation Officer]

assumes the role of a signatory, including the right to terminate a regional programmatic 

agreement on lands under the jurisdiction of the tribe.” Id. This sentence implies that either a 

State Historic Preservation Officer or a Tribal Historic Preservation Officer must act as a 

signatory, but that a tribal officer is required as a signatory only where that tribal officer has 

taken the place of the State Historic Preservation Officer. And tribal officers assume the 
21 

responsibilities of state officers only on tribal lands. See 54 U.S.C. § 302702 (“An Indian tribe 

may assume all or any part of the functions of a State Historic Preservation Officer . . . with 

respect to tribal land.”); see also United Keetoowah Band of Cherokee Indians, 933 F.3d at 734 

(explaining that tribes “adopt the responsibilities of State Historic Preservation Officers on Tribal 

lands”). Accordingly, when a programmatic agreement is executed with respect to a historic site 

that is not on tribal land, a Tribal Historic Preservation Officer does not assume the “functions of 

a State Historic Preservation Officer.” See 54 U.S.C. § 302702. Consequently, a Tribal Historic 

Preservation Officer is not a required signatory to a programmatic agreement when that 

programmatic agreement does not affect tribal lands.

The Advisory Council’s guidance also clarifies that a tribal signatory is required only 

when a programmatic agreement affects tribal lands. The Advisory Council’s guidelines explain 

that while agencies have an obligation to consult with tribes who have a historic interest in 

land—wherever that land may be located—agencies only require a tribe’s consent to specific

mitigation when the programmatic agreement covers an undertaking on tribal land. See AR at 

00027–00032 (Advisory Council guidelines distinguishing and detailing agencies’ 

responsibilities with respect to projects on and off tribal lands); AR at 00030 (“[T]he agency 

may, but is not required to, invite an Indian tribe to become a signatory or concurring party when 

the undertaking or affected historic properties are not on tribal lands.”); AR at 00030–00031 

(“Refusal by an Indian tribe to become a signatory or concurring party to [a programmatic 

agreement] for an undertaking on non-tribal lands, however, does not invalidate it. . . . Other 

consulting parties, including Indian tribes, may decline to participate, but they cannot terminate 

consultation.”).
22 

Whether a tribe’s sign-off is required for the execution of a programmatic agreement 

therefore turns on whether the programmatic agreement affects a historic site on tribal lands. 

Thus, to assess whether the Tribe’s sign-off was required here, the Court must determine whether 

the I-95 Viaduct Bridge project affected a historic site on tribal lands. “Tribal lands” is defined 

by the regulation to mean “all lands within the exterior boundaries of any Indian reservation and 

all dependent Indian communities.” Id. § 800.16(x). So far as the Court can tell based on the 

administrative record, the I-95 Viaduct Bridge construction project is located in the city of 

Providence—adjacent to the Rhode Island State House—and not within the Narragansett 

reservation. See AR at 000284; 000977; AR at 001196. Nor does the record support an 

argument that the bridge is located within a “dependent Indian communit[y].” Accordingly, the 

Court concludes that the programmatic agreement does not affect tribal lands and that, therefore, 

the Tribe was not a required signatory to the programmatic agreement.5

5

 At one point in the Tribe’s reply brief, the Tribe implies in passing that the 

programmatic agreement affects tribal property because the Mitigation Properties are located 

within the Tribe’s reservation’s boundaries. See Pl.’s Reply at 7 (“The Agency knew well the 

tribe was opposed to these measures, because the properties to serve as mitigation for the 

Viaduct Project, were significant historic properties to the tribe [and] w[]ere within the Tribe’s 

reservation boundaries.”). But the Tribe does not provide any support in the administrative 

record for the contention that the programmatic agreement affects tribal lands. See id. 

Additionally, “[a]rguments raised for the first time in a reply brief are forfeited,” Fore River 

Residents Against the Compressor Station v. FERC, 77 F.4th 882, 889 (D.C. Cir. 2023), and 

“perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent 

authority, are deemed waived,” Sherrod v. McHugh, 334 F. Supp. 3d 219, 265 (D.D.C. 2018) 

(quotation omitted). Moreover, the text of 36 C.F.R. §§ 800.1(a), 800.2(c)(2), 800.4(d), 800.11, 

& 800.14(b)(2)(iii), (f), all indicate that Section 106 requires that a tribal officer act as a 

signatory only when the “affected” property is on tribal land, not when properties used for 

mitigation are located on tribal lands. See also AR at 00027–00030 (Advisory Council guidance 

stating that “the agency may, but is not required to, invite an Indian tribe to become a signatory 

or concurring party when the undertaking or affected historic properties are not on tribal lands” 

(emphasis added)). Accordingly, even if the Tribe could show that the Mitigation Properties 

were located on tribal land, the Tribe cannot show that the affected historic property—at the site 

of the bridge construction—is on tribal lands and, thus, the regulation does not require a tribal 

signatory to execute the programmatic agreement. 
23 

The Tribe contends that 36 C.F.R. §§ 800.14(b)(3) and 800.6 require a different result. 

See Pl.’s Reply at 2–3, 5–6 (arguing that when a tribe is included in the consultation process, it 

must have authority to execute, amend, or terminate a programmatic agreement). Specifically, 

the Tribe argues that § 800.14(b)(3) requires the agency to comply with § 800.6 and that § 800.6 

requires a tribal signatory to execute an agreement regardless of where the affected historic 

property is located. But §§ 800.14(b)(3) and 800.6 do not require what the Tribe contends they 

require.

To begin with, § 800.14(b)(3) specifies that “[c]onsultation to develop a programmatic 

agreement for dealing with the potential adverse effects of complex projects or multiple 

undertakings shall follow § 800.6.” 36 C.F.R. § 800.14(b)(3). By its own terms, therefore, 

§ 800.14(b)(3) applies only to “complex projects or multiple undertakings.” Id. But not all 

programmatic agreements deal with “complex projects or multiple undertakings”; some 

programmatic agreements are put in place to implement “a particular program.” Id.§ 800.14(b). 

Accordingly, not every programmatic agreement must follow § 800.6. And here, the Tribe does 

not point to anything in the administrative record to indicate that the programmatic agreement 

deals with a “complex project[] or multiple undertakings.” Id. Rather, the programmatic 

agreement appears to deal with a single undertaking—the building of the I-95 Viaduct Bridge. 

See generally AR at 000970–000975. 

Furthermore, even if the programmatic agreement at issue here required the agency to 

follow the procedure detailed in § 800.6, that procedure does not require the Tribe’s signature for 

the execution of a programmatic agreement. The Tribe focuses on the language in § 800.6(c)(1), 

which specifies that for the execution of a memorandum of agreement “the agency official and 

the [State Historic Preservation Officer] / [Tribal Historic Preservation Officer]” must be 
24 

signatories and that the “signatories have sole authority to execute, amend or terminate the 

agreement in accordance with this subpart.” 36 C.F.R. § 800.6(c)(1). What the Tribe fails to 

recognize is that § 800.6(c)(1)—by using a virgule (forward slash) to separate “State Historic 

Preservation Officers” from “Tribal Historic Preservation Officer”—appears to contemplate that 

either a State Historic Preservation Officer or a Tribal Historic Preservation Officer must be a 

signatory; not both. See Knous v. United States, 683 F. App’x 859, 864 (11th Cir. 2017) 

(“Courts have repeatedly recognized that a slash, solidus, or virgule is used to separate 

alternatives.”); see also Virgule, Webster’s II Collegiate Dictionary 1234 (1995) (“A diagonal 

mark (/) used esp. to separate alternatives.”). While it is possible that both a State Historic 

Preservation Officer and a Tribal Historic Preservation Officer could act as signatories, that 

result is not required by the text of § 800.6(c)(1). 

Moreover, the text of § 800.6(c)(2) clarifies that § 800.6(c)(1) does not require a Tribal 

Historic Preservation Officer to be a signatory for a memorandum of agreement when the 

memorandum of agreement does not relate to Tribal Lands. Section 800.6(c)(2) discusses 

“invited signatories.” 36 C.F.R. § 800.6(c)(2). Invited signatories are additional parties that may 

be invited by the Agency to sign a memorandum of agreement and who, by signing the 

agreement, obtain “the same rights with regard to seeking amendment or termination of the 

memorandum of agreement as other signatories.” Id. § 800.6(c)(2)(i). The regulation explains 

that an “agency official may invite an Indian tribe . . . that attaches religious and cultural 

significance to historic properties located off tribal lands to be a signatory to a memorandum of 

agreement concerning such properties.” Id. § 800.6(c)(2)(ii) (emphasis added). If § 800.6(c)(1) 

required a tribal signatory regardless of where a historic site was located, as the Tribe contends, 

§ 800.6(c)(2) would be superfluous because tribes would already be required signatories. 
25 

Accordingly, § 800.6 is best read to permit, but not require, the Agency in this case to invite the 

Tribe to be a signatory because the historic properties affected by the bridge construction project 

are not on tribal lands. See also Coyote Valley Band of Pomo Indians of Cal. v. U.S. Dep’t of 

Transportation, No. 15-cv-04987, 2018 WL 1587212, at *14 (N.D. Cal. Apr. 2, 2018) (noting 

that “[n]othing in that regulation requires the parties to reach an agreement on a memorandum of 

agreement” where the historic property is “located off tribal lands”). 

Similarly, 36 C.F.R. § 800.14(f) does not change the Court’s analysis. Citing 

§ 800.14(f)(2), the Tribe contends that “as a signatory the Tribe’s view and agreement are 

required.” Pl.’s Reply at 1; see also Pl.’s MSJ at 32, 37. But § 800.14(f)(2) requires only that 

when an agency uses the programmatic agreement process, “the agency official shall ensure that 

development of the program alternative includes appropriate government-to-government 

consultation with affected Indian tribes” and that the agency “shall provide summaries of the 

views, along with copies of any written comments, provided by affected Indian tribes . . . to the 

[Advisory] Council as part of the documentation for the proposed” programmatic agreement. 36 

C.F.R. § 800.14(f)(2). Additionally, “[t]he agency official and the Council shall take those views 

into account in reaching a final decision on the proposed program alternative.” Id.

By its plain terms, § 800.14(f)(2) does not require that the Agency obtain the Tribe’s 

agreement or consent before executing a programmatic agreement. Rather, under the regulation, 

the Agency must obtain the Tribe’s views and comments about the programmatic agreement and 

“take those views into account.” Id. The fact that the regulation merely requires the Agency to

“take those views into account” undermines the Tribe’s contention that something more is 

required. Additionally, the Tribe’s contention that the role of a consulting party is equivalent to 

that of a required signatory party is undermined by the regulation’s definition of “consultation.” 
26 

See 36 C.F.R. § 800.16(f) (“Consultation means the process of seeking, discussing, and 

considering the views of other participants, and, where feasible, seeking agreement with them 

regarding matters arising in the [S]ection 106 process.” (emphasis added)). The consultation 

process requires only that an agency seek agreement with consulting parties “where feasible” and 

does not categorically require the Agency to obtain the Tribe’s sign-off before executing a 

programmatic agreement. Accordingly, nothing in the NHPA’s implementing regulations 

requires the Tribe’s consent for the programmatic agreement’s execution. 

The Tribe separately argues that the Agency failed to provide a reasoned explanation for 

the Agency’s different treatment of the Tribe in the first and second programmatic agreements, 

suggesting that the Agency’s decision was arbitrary and capricious. See Pl.’s MSJ at 13–14, 37–

38 (arguing that agency failed to articulate a rationale for changing its position by excluding “the 

Tribe as a Stakeholder/signatory and failing to consult with the tribe in the early development of 

the” second programmatic agreement). “[I]t is axiomatic that an agency adjudication must either 

be consistent with prior adjudications or offer a reasoned basis for its departure from precedent,” 

ConAgra, Inc. v. NLRB, 117 F.3d 1435, 1443 (D.C. Cir. 1997) (quotation marks and citation 

omitted); see also Duke Energy Carolinas, LLC v. FERC, 883 F.3d 923, 926 (D.C. Cir. 2018) 

(“Essentially, the court must look to whether [the Agency] articulated a rational explanation for 

its action and either acted consistent with or offered a reasoned basis for its departure from 

precedent.” (cleaned up)); Safari Club Int’l v. Zinke, 878 F.3d 316, 331 (D.C. Cir. 2017) 

(“[W]hen an agency changes its position regarding a regulatory matter, it must provide reasoned 

explanation for its action.” (quotation marks and citation omitted)). But “an agency is permitted 

to change its policies so long as it provides a reasoned explanation for doing so.” Hosp. 

Menonita de Guayama, Inc. v. NLRB, 94 F.4th 1, 14 (D.C. Cir. 2024). In other words, the 
27 

agency’s action must be “reasonable and reasonably explained.” FCC v. Prometheus Radio 

Project, 592 U.S. 414, 423 (2021). The court cannot supply an explanation that the agency 

failed to give, but it may uphold an agency’s reasoning even where it is “articulated only briefly 

and in a somewhat conclusory fashion.” Chiquita Brands Int’l Inc. v. SEC, 805 F.3d 289, 299 

(D.C. Cir. 2015). 

Here, although the Agency did so in a brief fashion, it did explain why the Tribe was 

treated as a required signatory for the initial programmatic agreement but only as a concurring or 

invited signatory for the second programmatic agreement. As the Tribe acknowledges, the 

Agency sent the Tribe a letter explaining that 

[t]he project’s adverse effects to historic properties are not on Tribal land, thus the 

Rhode Island State Historic Preservation Office (RISHPO) is the official with 

jurisdiction over the historic resource. Also, the mitigation commitments in the 

[second programmatic agreement] do not require any action or responsibility on 

the Tribe. Therefore, [the Agency] is granting the Tribe concurring party status in 

the [second programmatic agreement] as recommended by 36 CFR 800.6(c)(3). 

See Pl.’s MSJ at 31 (quoting AR at 000643–000644). 

The Agency’s first explanation—that the “project’s adverse effects to historic properties 

are not on Tribal land”—does not appear reasoned given that the first programmatic agreement 

similarly did not affect tribal lands. That said, the Agency’s second explanation—that “the 

mitigation commitments in the [second programmatic agreement] do not require any action or 

responsibility on the Tribe”—is a reasoned explanation for the Tribe’s different treatment in the 

second programmatic agreement. Unlike the first programmatic agreement that placed 

responsibility for the management of the Mitigation Properties with the Tribe, the second 

programmatic agreement places responsibility for those properties with the State. Although the 

Tribe understandably disagrees with the change in the way the Agency treated it between the two 

programmatic agreements, the Court will not second guess the Agency’s decision where the 
28 

Agency has provided a reasoned explanation for the change. See Long v. United States Dep’t of 

Health & Hum. Servs., 422 F. Supp. 3d 143, 150 (D.D.C. 2019) (court “will uphold a decision of 

less than ideal clarity if the agency’s path may reasonably be discerned” (citation omitted)); see 

also Barker v. United States, 404 F. Supp. 3d 251, 265 (D.D.C. 2019) (refusing to disturb agency 

decision when decision was “well-reasoned and sufficiently explained”). The Agency’s decision 

to treat the Tribe differently in the second programmatic agreement where that agreement did not 

require the Tribe to take mitigation measures was reasonable and “understandable.” See Sierra 

Club v. Salazar, 177 F. Supp. 3d 512, 532 (D.D.C. 2016) (agency’s “findings and rationales” 

must be “understandable” (citation omitted)). While it made sense to treat the Tribe as a 

signatory in the first programmatic agreement because, in that agreement, the Tribe was required 

to take certain mitigation actions, the second programmatic agreement does not require the Tribe 

to take any mitigation actions, and therefore a lessened role for the Tribe is reasonable and 

understandable. See AR at 00030 (Advisory Council guidance stating that “[i]f a tribe is 

assuming review or other responsibilities under the [programmatic agreement], the agency 

should consider inviting the tribe to become a signatory.” (emphasis added)); see also United 

Keetoowah Band of Cherokee Indians, 933 F.3d at 747 (agency decision reasonable and 

sufficiently explained when agency decision was “consistent with the Advisory Council’s 

preexisting guidance” and “[did] not violate [agency’s] duty to consult with tribes”). Thus, the 

Agency made a reasonable determination based on the information before it. Because the 

Agency has provided a reasoned explanation for its change, the Court concludes that the decision 

was not arbitrary and capricious. 
29 

2. Consultation Requirement 

Beyond its contention that it was required as a signatory to the programmatic agreement, 

the Tribe also argues that the Agency failed to consult with the Tribe as required under Section 

106. See Pl.’s MSJ at 14–16, 31, 35. Section 106 requires that agencies give tribes a reasonable 

opportunity “to identify historic properties, to express concerns regarding those properties, and to 

participate in the resolution of those concerns” but a tribe’s disagreement with an “agency’s 

methodology” does not undermine the reasonableness of the agency’s consultation. See Oglala 

Sioux Tribe v. U.S. Nuclear Regul. Comm’n, 45 F.4th 291, 306 (D.C. Cir. 2022) 

As explained above, “[c]onsultation means the process of seeking, discussing, and 

considering the views of other participants, and, where feasible, seeking agreement with them 

regarding matters arising in the section 106 process.” 36 C.F.R. § 800.16(f). There is a dearth of 

“precedent concerning what standards the agencies must use to comply with their NHPA 

consultation obligations.” Eagle Cnty., 82 F.4th at 1189. However, where a stakeholder 

participates in the agency’s “process of seeking, discussing, and considering the views of 

other[s],” and has a chance to “raise[] its concerns,” that is sufficient to satisfy the consultation 

requirement. Id.; see also United Keetoowah Band of Cherokee Indians, 933 F.3d at 750–51 

(describing consultation as the process of “seek[ing] advice or information of” the tribe and 

finding consultation requirement satisfied where agency “documented extensive meetings it held 

with [t]ribes before it issued” its decision); Standing Rock Sioux Tribe v. U.S. Army Corps of 

Engineers, 205 F. Supp. 3d 4, 27–28 (D.D.C. 2016) (holding that agency was likely to show that 

it satisfied consultation requirement when it sent an early notification to tribes, contacted tribes 

to discuss agency’s plans, and solicited tribes’ input). 
30 

Here, the Agency clearly sought out, discussed, and considered the Tribe’s views. As 

early as June 28, 2018, the Agency informed the Tribe that it was initiating a new programmatic 

agreement. See AR at 000270. On September 10, 2018, the Tribe responded that the mitigation 

proposed in the Agency’s letter was inadequate. See AR at 000270. On October 1, 2018, the 

Agency responded, acknowledged the Tribe’s dissatisfaction with the proposed mitigation

measures, and sought out the Tribe’s further input. See AR at 000267. The Tribe then sent an 

additional letter vehemently opposing the mitigation measures being considered by the Agency. 

See AR at 000272–000273 (“To say these proposed mitigation items do not respond to the 

severity of the adverse effects that the Viaduct Project has already had on, and will have on the 

culturally and religiously significant Providence Coveland sites is an understatement.”). The 

Agency also informed the Advisory Council that it intended to begin a new consultation process 

that included the Tribe. See AR at 000324. And the Agency expressed that it was “considering 

all points of view and all information provided” including information provided on behalf of the 

Tribe. See AR at 000371. On December 12, 2018, the Tribe reiterated its objections to the 

Agency’s proposed draft programmatic agreement. See AR at 000414. 

On December 19, 2018, the Agency sent the Tribe a proposed agreement it had with 

Rhode Island concerning co-management of a particular historic site and requested the Tribe’s 

comment on that agreement. See AR at 000404. On February 13, 2019, the Tribe sent a letter to 

the Agency with a list of questions about the Agency’s process for drafting the second 

programmatic agreement and continuing to object to the mitigation measures in the proposed 

agreement. See AR at 000483–000484. On March 5, 2019, the Agency responded to the Tribe’s 

questions. See AR at 000643–000644. 
31 

Later, the Agency sent the Tribe the proposed second programmatic agreement and the 

Tribe again strenuously objected to that Agreement. See AR at 000705, 000711. The Agency 

also had discussions with the Tribe, where the Tribe had an opportunity to share its objections 

and propose changes to the second programmatic agreement. See AR at 000441–000444, 

000508, 000839. 

Additionally, it appears from the record that a meeting took place between the Tribe and 

other stakeholders to try to come to some agreement with respect to mitigation measures other 

than those proposed in the second programmatic agreement. See AR at 000649–000652 

(correspondence from Tribe regarding consultation meeting on April 17, 2019). In that meeting, 

Rhode Island suggested transferring to the Tribe the Mitigation Properties that the Tribe desired, 

subject to certain conditions, but the Tribe rejected that proposal. Id. It appears that the Tribe 

put forth a counteroffer, that the Agency requested Rhode Island’s response to the counteroffer, 

and that Rhode Island rejected the Tribe’s counteroffer. See AR at 000658. The Tribe again 

proposed mitigation measures on April 25, 2019, see AR at 000835, and the record indicates that 

the Agency continuously took into consideration the Tribe’s proposals, see AR at 000834; AR at 

000900 (“The [Agency], in consultation with all the Section 106 consulting parties has taken into 

consideration all the proposals presented for evaluation, including the [Tribe’s] April 25, 2019 

proposal.”). 

The Tribe’s Historic Preservation Officer also sent the Agency additional emails about 

the proposed mitigation measures on June 12, 2019 and June 26, 2019. See AR at 000711; AR at 

000759. And following up on the Tribe’s emails, the Agency scheduled a meeting with the Tribe 

for June 26, 2019 and also asked the Tribe if it would like to take part in a one-on-one 
32 

consultation with the Agency or otherwise take part in a group consultation with other 

stakeholders on July 17, 2019. See AR at 000775; AR at 000839. 

Throughout the consultation process, the Tribe repeatedly objected that the Agency had 

not consulted with it, even though the Agency repeatedly solicited comments from the Tribe and 

the Tribe appears to have put forward its own mitigation proposals, which the Agency indicated 

it considered. And, in fact, the provisions of the second programmatic agreement did change 

over the course of the consultation process. See AR at 000836 (Tribe’s lawyer describing change 

in proposed management structure of one of the Mitigation Properties). If the Tribe wished for 

the second programmatic agreement to include different provisions, it had the opportunity to 

propose those changes at multiple points in the consultation process. Rather than proposing 

other alternatives, it appears that the Tribe continuously rejected efforts to find alternative 

mitigation measures to those that had been rejected by Rhode Island. See, e.g., AR at 000882. 

The fact that the Tribe is unsatisfied with the Agency’s final decision about the mitigation 

measures in the second programmatic agreement does not mean that the Tribe was not consulted. 

There is no question that the Agency requested the Tribe’s views, that the Tribe expressed its 

views, and that the Agency considered and responded to those views. Accordingly, the Agency 

complied with the consultation requirement set forth in the Act and its regulations. See Eagle 

Cnty., 82 F.4th at 1189. 

The Tribe also argues that the Agency did not consult with it because the Agency was 

predisposed to reject the Tribe’s preferred mitigation measures. See Pl.’s MSJ at 18, 25, 34. The 

fact that the Agency did not believe it would be able to obtain the Tribe’s consent to the second 

programmatic agreement absent the Tribe’s preferred mitigation does not change the fact that the 

Agency sought out and considered the Tribe’s proposals and concerns. The Tribe even 
33 

acknowledges that the Agency reached out to the Tribe and sought the Tribe’s comments. See

Pl.’s MSJ at 17–25 (detailing the many communications between the Tribe and Agency); see 

also Def.’s Cross-MSJ at 5–11 (same). Ultimately—galling to the Tribe as it may be, and as 

explained above—the Agency was not required to obtain the Tribe’s consent to the mitigation 

terms before executing the second programmatic agreement. Given that the Agency consulted 

with the Tribe as required by the NHPA’s implementing regulations, that is sufficient to satisfy 

the Section 106 process in this case. See United Keetoowah Band of Cherokee Indians, 933 F.3d 

at 750 (rejecting Indian tribes’ argument that agency decision had already been made prior to 

consultation where agency “appeared to seek, discuss, and consider the views of the [t]ribes, 

even if it did not ultimately adopt those views” (cleaned up)). Because the Agency fulfilled its 

Section 106 obligations, the Court concludes that the Agency’s execution of the second 

programmatic agreement did not violate the APA.6

V. CONCLUSION

For the foregoing reasons, the Court DENIES the Tribe’s motion for summary judgment 

(ECF No. 42) and GRANTS the Agency’s motion for summary judgment (ECF No. 43). An 

order consistent with this Memorandum Opinion is separately and contemporaneously issued. 

Dated: July 23, 2024 RUDOLPH CONTRERAS

United States District Judge

6

 Because the Tribe’s claim fails and the Court grants summary judgment to the Agency, 

the Court need not discuss the Tribe’s entitlement to relief, including damages.