UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

Transcription

1 Case: Document: Page: 1 Date Filed: 01/16/2018 Entry ID: No UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT NARRAGANSETT INDIAN TRIBE, acting by and through the Narragansett Indian Tribal Historic Preservation Office Plaintiff-Appellant v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; ADVISORY COUNCIL ON HISTORIC PRESERVATION; RHODE ISLAND HISTORICAL PRESERVATION & HERITAGE COMMISSION Defendants-Appellees On Appeal from the United States District Court for the District of Rhode Island BRIEF OF APPELLANT PANNONE LOPES DEVEREAUX & O GARA LLC William P. Devereaux (#26351) 1301 Atwood Avenue, Suite 215 N Johnston, RI (401) (401) wdevereaux@pldolaw.com

2 Case: Document: Page: 2 Date Filed: 01/16/2018 Entry ID: TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii JURISDICTIONAL STATEMENT... 4 STATEMENT OF ISSUES PRESENTED FOR REVIEW... 5 STATEMENT OF THE CASE... 5 SUMMARY OF THE ARGUMENT STANDARD OF REVIEW ARGUMENT The District Court erred in holding that the NHPA simply does not provide for a private right of action The District Court erred in holding that the complaint failed to state a claim against the State Defendants CONCLUSION CERTIFICATE OF COMPLIANCE WITH RULE 32(A)...21 CERTIFICATE OF SERVICE...22 i

3 Case: Document: Page: 3 Date Filed: 01/16/2018 Entry ID: Cases TABLE OF AUTHORITIES Boardhead Corp. v. Erickson, 923 F.2d 1011, 1017 (3rd Cir. 1991)...14 Grable & Sons Metal Prods. v. Darue Eng g & Mfg., 545 U.S. 308, 312 (2005)... 18, 19 Hopkins v. Walker, 244 U.S. 486, 489 (1917)...19 Karst Envtl. Educ. and Prot., Inc. v. EPA, 475 F.3d 1291, 1295 (D.C. Cir. 2007)...14 Klamath Water Users Protective Ass n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 2000)...18 Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)...13 Narragansett Indian Tribe v. R.I. DOT et al., No , 2017 U.S. Dist. LEXIS (D.R.I. Sep. 11, 2017)...5, 15 Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994)...13 San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1099 (9th Cir. 2005)... 14, 15 Town of Barnstable v. O Connor, 786 F.3d 130, 138 (1st Cir. 2015)...13 Tyler v. Cuomo, 236 F.3d 1124 (9th Cir. 2000)... 17, 18 Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994)...13 Vieux Carre Prop. Owners, Residents & Assocs. v. Brown, 875 F.2d 453, 458 (5th Cir. 1989)...14 Statutes 28 U.S.C U.S.C U.S.C ii

4 Case: Document: Page: 4 Date Filed: 01/16/2018 Entry ID: U.S.C U.S.C U.S.C U.S.C U.S.C , 14 Section 1 of the National Historic Preservation Act, Pub. L. No , as amended by Pub. L. No Other Authorities 36 C.F.R C.F.R (a) C.F.R (b)... 8, 9, C.F.R (c)(2)...8, 9 ALI, Study of the Division of Jurisdiction Between State and Federal Courts (1968)...18 Exec. Order No. 13,601, 3 C.F.R. 221 (1997)... 9 Rules Federal Rule of Civil Procedure 12(b)...13 iii

5 Case: Document: Page: 5 Date Filed: 01/16/2018 Entry ID: JURISDICTIONAL STATEMENT This matter arises from the filing of a complaint by the Narragansett Indian Tribe acting by and through the Narragansett Indian Tribal Historic Preservation Office ( NIT ), seeking relief against the Rhode Island Department of Transportation ( RIDOT ), the Federal Highway Administration ( FHWA ), the Advisory Council on Historic Preservation ( ACHP ) (together with the FHWA, the Federal Defendants ), and the Rhode Island Historical Preservation & Heritage Commission ( RIHPHC ) (together with RIDOT, the State Defendants ) for violations of a Programmatic Agreement (the PA ) entered into by the NIT, the FHWA, the RIDOT, and the RIHPHC 1 pursuant to Section 106 of the National Historic Preservation Act of 1966, 54 U.S.C et seq. ( NHPA ). As such, and as discussed more fully below, the United States District Court for the District of Rhode Island (the District Court ) had jurisdiction over NIT s claims. On September 11, 2017, Chief U.S. District Court Judge William E. Smith filed a Memorandum and Order, which granted separate motions to dismiss that had been filed by the Federal Defendants and the State Defendants. Judgment entered for the Federal Defendants and State Defendants on that same day. 1 RIHPHC was represented by the Rhode Island State Historic Preservation Officer. 4

6 Case: Document: Page: 6 Date Filed: 01/16/2018 Entry ID: The Court of Appeals has jurisdiction over this appeal pursuant to 28 U.S.C The final judgment that is being appealed from disposed of all issues in this cause of action. No motion for a new trial or alteration of the judgment, or any other motion that would have tolled the time to appeal, was filed. The Notice of Appeal was timely filed on September 26, STATEMENT OF ISSUES PRESENTED FOR REVIEW i. Whether the District Court erred in determining that it lacked subject matter jurisdiction with respect to the claims against the Federal Defendants due to the absence of an express waiver of sovereign immunity by the Federal Defendants. ii. Whether the District Court erred in determining that the NIT had failed to state a claim against the State Defendants due to its finding that there is no private right of action under the NHPA. STATEMENT OF THE CASE Summary Chief Judge William E. Smith granted two separate motions to dismiss that were filed by the Federal Defendants and the State Defendants in his Memorandum and Order dated September 11, See Narragansett Indian Tribe v. R.I. DOT et al., No , 2017 U.S. Dist. LEXIS (D.R.I. Sep. 11, 2017). NIT 5

7 Case: Document: Page: 7 Date Filed: 01/16/2018 Entry ID: respectfully requests that this Court reverse the holdings in the Memorandum and Order and the subsequently filed Judgment of the District Court. NIT initiated this suit on March 31, In its verified complaint, NIT alleged counts seeking Declaratory Relief, Injunctive Relief, and Breach of Contract regarding the PA that the parties had all agreed to. Also on March 31, 2017, NIT filed a motion for a temporary restraining order. After a chambers conference with Judge Smith on May 3, 2017, the Court denied NIT s motion for a temporary restraining order by way of a Text Order. Both the Federal Defendants and the State Defendants then filed separate motions to dismiss NIT s verified complaint. On June 9, 2017, the Federal Defendants filed a motion to dismiss for lack of jurisdiction and failure to state a claim. On June 19, 2017, the State Defendants filed a motion to dismiss for failure to state a claim. On September 11, 2017, the District Court entered its Memorandum and Order granting both motions to dismiss. The Federal Defendants motion was granted for lack of subject matter jurisdiction while the State Defendants motion was granted for failure to state a claim. 6

8 Case: Document: Page: 8 Date Filed: 01/16/2018 Entry ID: Background Facts The Statutory Scheme The NHPA was enacted by Congress in Included in the Congressional findings, which outlines the purpose of the NHPA, are: that the historical and cultural foundations of the Nation should be preserved ; that historic properties significant to the Nation s heritage are being lost or substantially altered, often inadvertently, with increasing frequency ; that the preservation of this irreplaceable heritage is in the public interest ; that the increased knowledge of our historic resources, the establishment of better means of identifying and administering them, and the encouragement of their preservation will improve the planning and execution of Federal and federally assisted projects ; and that it was necessary and appropriate for the Federal Government to accelerate its historic preservation programs and activities.... See Section 1 of the National Historic Preservation Act, Pub. L. No , as amended by Pub. L. No In order to effectuate these purposes, Congress enacted what is known as the Section 106 process, which provides that prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, [the head of any Federal agency having direct or indirect jurisdiction over a proposed 7

9 Case: Document: Page: 9 Date Filed: 01/16/2018 Entry ID: Federal or federally assisted undertaking] shall take into account the effect of the undertaking on any historic property. 54 U.S.C (emphasis supplied). 2 The NHPA established the ACHP, which is authorized to promulgate rules and regulations to govern the implementation of Section 106. See id. at , The ACHP has enacted regulations pursuant to this grant of authority. See 36 C.F.R According to the regulations, [t]he section 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. See id. at 800.1(a). Additionally, 36 C.F.R requires consultation with Indian tribes on undertakings that effect historic properties of significance to Indian tribes. See id. at 800.2(c)(2)(ii). Furthermore, the regulations recognize that [c]onsultation with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty. Id. at 800.2(c)(2)(ii)(B). In order to resolve adverse effects from complex undertakings, the regulations also permit the development and implementation of programmatic agreements. See id. at (b). Compliance with the terms of a programmatic agreement satisfies an agency s section 106 responsibilities. See id. at (b)(2)(iii). Programmatic 2 In the matter of the Providence Viaduct relocation project, over $200 million in federal funds are expected to be expended. 8

10 Case: Document: Page: 10 Date Filed: 01/16/2018 Entry ID: agreements take effect after appropriate public notice is provided. See id. at (b)(2)(iv). The Underlying Dispute The NIT is a federally recognized sovereign Indian nation. More importantly for the instant dispute, the NIT qualifies as a consulting party due to its status as an Indian nation that attaches religious and cultural significance to the historic properties that may be affected by the project. See 36 C.F.R (c)(2)(ii). As a consulting party, the NIT, along with the FHWA, RIDOT, and RIHPCH entered into the PA on or about October 3, The PA recognized that the FHWA was committed to providing substantial federal funding to the RIDOT to replace the Providence Viaduct Bridge No. 578 which is a large multi-span bridge carrying I-95 through the center of Providence. The Viaduct, constructed in 1964, passes over the Woonasquatucket River and Amtrak rail lines. The Woonasquatucket River was designated an American Heritage River 3 in At one time the Woonasquatucket River was an important transportation route for native peoples, especially for connecting various tribes of the Algonquian Nation. Historic evidence indicates that 3 American Heritage Rivers are designated by the Environmental Protection Agency to receive special attention to further three objectives: (1) natural resource and environmental protection; (2) economic revitalization; and (3) historic and cultural preservation. See Exec. Order No. 13,601, 3 C.F.R. 221 (1997). To date, only fourteen rivers in the United States have received this designation. 9

11 Case: Document: Page: 11 Date Filed: 01/16/2018 Entry ID: native tribes gathered along the Woonasquatucket River for trading and harvest festivals and set camps in the vicinity of the Woonasquatucket River. The Viaduct replacement project was considered an Undertaking pursuant to 54 U.S.C The PA recognized and recited that the Undertaking would, in fact, have adverse effects on the Providence Covelands Archaeological District, which includes the Woonasquatucket River, and that a Phase III archeological data recovery program to mitigate the effects of the Undertaking was not reasonable because of environmental, logistical, and cost factors. As mitigation for the expected adverse effects the Undertaking would have on the Providence Covelands Archaeological District, RIDOT agreed to transfer ownership of certain properties to the NIT. The properties to be transferred pursuant to the PA were amended on January 17, 2013, and included: (1) the Salt Pond Archeological Preserve in Narragansett, Rhode Island; (2) the Providence Boys Club Camp Davis property in Charlestown, Rhode Island; and (3) the Chief Sachem Night Hawk property, also in Charlestown. The PA contemplated that the Salt Pond Archaeological Preserve was to be transferred to the State of Rhode Island and the NIT, jointly, and the parties were to develop a memorandum of agreement addressing ownership and public access. The Providence Boys Club Camp Davis and the Chief Sachem Night Hawk properties which border, or are located near, the NIT s Trust Lands in Charlestown, Rhode Island were to be transferred to the 10

12 Case: Document: Page: 12 Date Filed: 01/16/2018 Entry ID: NIT, solely, and it was agreed that the deeds for said properties would include [a]ppropriate covenants that preserve the property and its cultural resources in perpetuity.... Although never included or required by the PA, RIDOT subsequently dictated to the NIT that RIDOT would not transfer the Providence Boys Club Camp Davis property, and presumably the Chief Sachem Night Hawk property, unless the NIT waived its sovereign immunity with respect to deed covenants and also consented to subject the property to the civil and criminal laws and jurisdiction of the State of Rhode Island. The NIT believed the PA, a carefully calibrated agreement, had adequately addressed all of the parties concerns (otherwise each party s attorneys would not have counselled them to sign it) and therefore the NIT refused to acquiesce to these post agreement demands which were never negotiated as part of the PA. The PA, perhaps envisioning situations where disputes could evolve, also provided that the FHWA would consult with the parties to resolve any objections to specific terms of the PA. If an objection could not be resolved then the matter would be forwarded to the ACHP to provide advice or comment to the FHWA to consider prior to reaching a final decision. Furthermore, the PA provided that any signatory to the PA could terminate the PA for cause. If the PA was terminated, the FHWA and interested parties would then have to comply with the Section 106 process. 11

13 Case: Document: Page: 13 Date Filed: 01/16/2018 Entry ID: Despite the fact that the RIDOT s post agreement demands could not be construed as specific terms in the PA, the parties agreed to submit RIDOT s recently raised issues to the mediation process. Unfortunately, the parties were unsuccessful in their attempts to resolve the jurisdictional impasse triggered by RIDOT s post agreement demands, and on February 15, 2017 the PA was terminated by RIDOT and FHWA. Upon that occurrence, the NIT filed the instant action on March 31, 2017, asserting breach of contract claims and seeking declaratory and injunctive relief. The underlying motions to dismiss followed shortly thereafter. SUMMARY OF THE ARGUMENT The District Court improperly granted both motions to dismiss. As to the Federal Defendants, the District Court erroneously determined that the NHPA did not waive sovereign immunity as to the United States, and therefore the District Court did not have subject matter jurisdiction. However, the NHPA unequivocally provides for an award of attorney s fees to a successful litigant for any civil action brought in any United States district court by any interested person to enforce this division U.S.C (emphasis added). To determine that any civil action is restrained to an agency appeal pursuant to the Administrative Procedures Act ( APA ) is far too limiting; rather, this Court should determine, as have others, that the plain language of the statute evidences an intent to permit a private cause of action to enforce the provisions of the NHPA, and thus constitutes a waiver of the 12

14 Case: Document: Page: 14 Date Filed: 01/16/2018 Entry ID: Federal Government s sovereign immunity for the purposes of including the United States as a party when enforcing the provisions of the NHPA. As to the State Defendants, the District Court was similarly incorrect in determining that a private right of action could not be brought by the NIT. Moreover, even if one could assume that the NHPA does not provide a private right of action, the District Court still maintained subject matter jurisdiction to determine the right to relief pursuant to the breach of contract claim which depends upon the construction and application of the NHPA and thus provides the District Court with inherent federal question jurisdiction. STANDARD OF REVIEW The First Circuit reviews [a] district court s dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) [] de novo. Town of Barnstable v. O Connor, 786 F.3d 130, 138 (1st Cir. 2015) (citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)). Likewise, a dismissal based on a failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. See Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994) (citing Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994)). For purposes of both, the Court must construe the Complaint liberally and treat all wellpleaded facts as true, according the plaintiff[s] the benefit of all reasonable inferences. Town of Barnstable, 786 F.3d at 138 (quoting Murphy, 45 F.3d at 522). 13

15 Case: Document: Page: 15 Date Filed: 01/16/2018 Entry ID: ARGUMENT The District Court erred in holding that the NHPA simply does not provide for a private right of action. The crux of the District Court s decision is that because the NHPA does not specifically state a private right of action, the United States is not amenable to suit because no express waiver of sovereign immunity is provided. Accordingly, the District Court found that it lacked subject matter jurisdiction. This issue is one upon which the First Circuit has not yet ruled but is an issue other circuits have reviewed and have reached differing results. Compare Karst Envtl. Educ. and Prot., Inc. v. EPA, 475 F.3d 1291, 1295 (D.C. Cir. 2007) (determining no private right of action under NHPA); San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1099 (9th Cir. 2005) (determining no private right of action under NHPA) with Boardhead Corp. v. Erickson, 923 F.2d 1011, 1017 (3rd Cir. 1991) (determining NHPA provided private right of action); Vieux Carre Prop. Owners, Residents & Assocs. v. Brown, 875 F.2d 453, 458 (5th Cir. 1989) (determining NHPA provided private right of action). Section of Title 54 of the United States Code logically provides for an implied private right of action against the United States by allowing attorney s fees to be awarded to a successful litigant in any civil action brought to enforce a division of the Code. See Vieux Carre, 875 F.2d at 458 ( Rather than through APA review, a private right of action against an agency arises under 16 U.S.C. 470w-4 14

16 Case: Document: Page: 16 Date Filed: 01/16/2018 Entry ID: [( , the attorney s fee provision)], which provides for the NHPA to be enforced in any civil action brought in any U.S. District Court by any interested person. ). In concluding, in the instant case, that the NHPA does not provide for a private right of the action, the District Court analogized to how the First Circuit has ruled on whether a private right of action exists under the National Environmental Policy Act ( NEPA ). See Narragansett Indian Tribe, 2017 U.S. Dist. LEXIS , at *11 n.32. This same reasoning was utilized by the San Carlos Apache Tribe court, which determined that because NEPA is a close statutory analog to NHPA, and because NEPA did not provide for a private right of action, it therefore followed that the NHPA, likewise, does not provide for a private right of action. See San Carlos Apache Tribe, 417 F.3d at However, upon closer inspection, NEPA and NHPA are not sufficiently analogous to summarily conclude that the lack of a private right of action pursuant to the NEPA statutory scheme automatically forecloses a private right of action under the NHPA. The NHPA specifically requires federal agencies to consider the overall effects of proposed undertakings on historic places while the NEPA requires agencies to consider purely environmental effects. While both acts require federal agencies to consider potential effects of proposed actions (here, major construction), the actual consultation requirements of the two acts differ dramatically. In stark 15

17 Case: Document: Page: 17 Date Filed: 01/16/2018 Entry ID: contrast to the consultation requirements of the NHPA, under NEPA the responsible federal official is not required to consult with any non-federal party, such as an Indian nation or a preservation organization that might be effected by the undertaking. See 42 U.S.C The fact that Congress, in enacting the NHPA, mandated close consultation with a much broader class of potentially interested parties than it did under NEPA indicates that Congress anticipated and desired greater public participation by stakeholders under the NHPA consultation procedures. The District Court s narrow interpretation that civil actions to enforce the terms of NHPA can only be brought by way of the APA, as is the case under NEPA, is not consistent with the expansive public involvement and consultation that Congress mandated pursuant to the NHPA, in comparison to the limited involvement provided within NEPA. It would be illogical for Congress to set up a regulatory scheme mandating close consultation with affected parties; propose that the parties enter into programmatic agreements; provide for attorney s fees to be awarded to parties who successfully litigate to enforce the NHPA; but then find that the United States cannot be a party to any such action because it has not waived sovereign immunity; and also determine there can be no claim against a state agency for breaching a contract by unilaterally attempting to modify the terms of the programmatic agreement. 16

18 Case: Document: Page: 18 Date Filed: 01/16/2018 Entry ID: Since the NHPA logically provides a private right of action, the District Court does indeed have subject matter jurisdiction over the claims brought against the Federal Defendants. Similarly, and more importantly, the complaint does state claims against the State Defendants due to the availability of a private right of action to enforce under the NHPA. The District Court erred in holding that the complaint failed to state a claim against the State Defendants. Even assuming, for the sake of rebuttal, that the NHPA does not provide for a private right of action, the complaint against the State Defendants still states a claim upon which relief could be granted. The breach of contract claim made against the State Defendants is controlled by and involves the construction and application of federal law. See Tyler v. Cuomo, 236 F.3d 1124, 1134 (9th Cir. 2000). In Tyler, a memorandum of agreement ( MOA ) was entered into by and between the United States Department of Housing and Urban Development ( HUD ), the City and County of San Francisco ( City, the ACHP, and the California State Historic Preservation Officer ( SHPO ). The MOA was consummated pursuant to the NHPA and its purpose was to minimize the potential adverse impacts on certain historic properties. Id. at A group of homeowner plaintiffs later brought suit alleging that the City had breached the MOA because it did not properly consider, and consult with, objecting members of the public as was required by the MOA. The Tyler court concluded that the homeowner plaintiffs had actual standing to bring a breach of 17

19 Case: Document: Page: 19 Date Filed: 01/16/2018 Entry ID: contract claim against the City for alleged violations of the MOA. Id. at The Circuit Court specifically noted that [f]ederal law controls the MOA s interpretation because it was entered into pursuant to a federal scheme and HUD is a party. Id. at 1134 (citing Klamath Water Users Protective Ass n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 2000)). The Supreme Court has also stated that there exists the commonsense notion that a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues[.] Grable & Sons Metal Prods. v. Darue Eng g & Mfg., 545 U.S. 308, 312 (2005) (citing ALI, Study of the Division of Jurisdiction Between State and Federal Courts (1968)). Here, the breach of contract claim clearly implicates substantial questions of federal law, including interpretation and construction of not only the NHPA but also the regulations adopted pursuant thereto. See Tyler, 236 F.3d at In fact, 36 C.F.R (b) provides the authority for programmatic agreements; when such agreements become effective; and available actions if the terms of a programmatic agreement are not adhered to. When this is compared with the terms of the PA in this case, which provides for termination only with cause, a court reviewing this matter will necessarily have to delve into an interpretation of the NHPA and the 18

20 Case: Document: Page: 20 Date Filed: 01/16/2018 Entry ID: regulations adopted thereunder, and whether the State Defendants by insisting after the fact on certain jurisdictional guarantees that were never bargained for when it signed the PA, had sufficient cause to terminate the agreement. Accordingly, it is plain that a controversy respecting the construction and effect of the [federal] laws is involved and is sufficiently real and substantial to warrant exercise of federal question jurisdiction. Grable & Sons Metal Prods., 545 U.S. at 316 (quoting Hopkins v. Walker, 244 U.S. 486, 489 (1917). Accordingly, the District Court has jurisdiction over the breach of contract claim brought against the State Defendants as any resolution of that claim turns on a substantial inquiry into the federal statutory scheme provided for within the NHPA. CONCLUSION WHEREFORE, the Narragansett Indian Tribe acting by and through the Narragansett Indian Tribal Historic Preservation Office respectfully requests that this Honorable Court reverse the Judgment of the District Court and remand this matter thereto for consideration of the merits of its claims. 19

21 Case: Document: Page: 21 Date Filed: 01/16/2018 Entry ID: Respectfully submitted, NARRAGANSETT INDIAN TRIBE BY AND THROUGH THE NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION OFFICE By its Attorneys, /s/ William P. Devereaux William P. Devereaux (#26351) PANNONE LOPES DEVEREAUX & O GARA LLC 1301 Atwood Avenue, Suite 215 N Johnston, RI (401) (401) (fax) wdevereaux@pldolaw.com 20

22 Case: Document: Page: 22 Date Filed: 01/16/2018 Entry ID: CERTIFICATE OF COMPLIANCE WITH RULE 32(A) Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 3,688 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Word in 14 point font, Times New Roman. /s/ William P. Devereaux Appellant Narragansett Indian Tribe acting by and through the Narragansett Indian Tribal Historic Preservation Office 21

23 Case: Document: Page: 23 Date Filed: 01/16/2018 Entry ID: CERTIFICATE OF SERVICE I hereby certify that I have on this 12 th day of January, 2018 electronically filed NARRAGANSETT INDIAN TRIBE acting by and through the NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION OFFICE BRIEF OF APPELLANT in this case with the Clerk of this Court using the CM/ECF System. The following are CM/ECF System participants in this case eligible to receive notice of the filing of such paper(s) electronically: Neil F.X. Kelly Mariana Ormonde Department of Attorney General 150 South Main Street Providence, RI Michael T. Gray U.S. Dept. of Justice, ENRD Appellate 701 San Marco Blvd. Jacksonville, FL Richard B. Myrus Donald Campbell Lockhart U.S. Attorney s Office 50 Kennedy Plaza, 8 th Floor Providence, RI /s/ William P. Devereaux 22

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