Narragansett Indian Tribe v. Warwick Sewer Auth., 02-2672.

• Decision Date: 03 July 2003
• Docket Number: No. 02-2672.,02-2672.
• Parties: NARRAGANSETT INDIAN TRIBE, Plaintiff, Appellant, v. WARWICK SEWER AUTHORITY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

334 F.3d 161

NARRAGANSETT INDIAN TRIBE, Plaintiff, Appellant, v. WARWICK SEWER AUTHORITY, Defendant, Appellee.

No. 02-2672.

United States Court of Appeals, First Circuit.

Heard June 6, 2003.

Decided July 3, 2003.

Douglas J. Luckerman, with whom John F. Killoy, Jr. was on brief for appellant.

Ian C. Ridlon, with whom Jeffrey S. Brenner and Nixon Peabody LLP were on brief for appellee.

Before LYNCH, LIPEZ, and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

The Narragansett Indian Tribe appeals from the district court's denial of a preliminary injunction against the Warwick Sewer Authority. The Tribe claims that the Authority is proceeding with a sewer construction project which risks desecration of ancestral burial sites. The Tribe argues that the Authority failed to consult adequately with the Tribe about the project, as required by § 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f (2000), and its attendant regulations, 36 C.F.R. Pt. 800 (2002).

The district court denied the preliminary injunction. We affirm, because we find that the Tribe falls far short of the standards for a preliminary injunction. Indeed, it appears that the Authority has acted responsibly to comply with the NHPA and to avoid any adverse impact on important cultural artifacts.

I.

The district court held an evidentiary hearing on the preliminary injunction motion on November 15, 2002. The following facts are drawn principally from evidence presented there.

The Authority has undertaken a construction project to link the eastern portion of Warwick, Rhode Island, to the city's existing sewer system, requiring some 2.5 miles of sewer line. The parties agree that the entire project must comply with § 106 of the NHPA as a condition of federal funding it receives. Section 106 and its implementing regulations, discussed in greater detail below, require sponsors of federally funded undertakings to consider their impact on historically or archaeologically important areas. The regulations also require consultation with a state-designated historic preservation officer and, in some circumstances, with affected Indian tribes. In early 2000, the Authority retained Public Archaeology Laboratory, Inc. (PAL), a nonprofit consulting group founded by five archaeologists formerly associated with Brown University, to assist in ensuring the sewer project's compliance with these mandates.

Alan Leveillee, a registered professional archaeologist and co-founder of PAL, conducted an initial assessment survey of the project. Leveillee completed a preliminary report based on this investigation. He determined that most of the proposed sewer lines would run under existing roads in highly developed suburban areas, so that excavation was unlikely to encounter any remaining archaeological material of significance that had not already been disturbed. For these sections of the project, the report concluded that it would be sufficient to have archaeologists train construction supervisors, conduct periodic field checks, and remain on call in case unexpected materials of potential historical value were encountered.

However, the report noted that several segments of the project had potentially greater archaeological sensitivity. Of particular relevance to this litigation, Leveillee identified a stretch of approximately 1,350 feet near the intersection of West Shore Road and Sandy Lane, adjacent to Buckeye Brook. In this area, the proposed sewer route ran through a relatively undisturbed wetlands area rather than under an existing roadway. Because of this difference, and the fact that Indian artifacts are often found along watercourses close to Narragansett Bay, such as Buckeye Brook, the report recommended that archaeologists stay on site to monitor all construction in this area.

On January 10, 2001, Leveillee mailed copies of the preliminary report both to Rhode Island's state historic preservation officer (known under § 106 as the "SHPO") and to the Tribe's historic preservation officer (the "THPO"). His cover letters stated: "Please provide any comments or concerns you may have. If you require additional information, please do not hesitate to call me at your convenience." The Tribe never responded to this letter. In contrast, the SHPO wrote back to Leveillee on January 19, and sent copies of its response to the THPO, the Authority, and the project's chief contractors. The SHPO concurred in most of Leveillee's conclusions and proposals, but recommended that shovel test pits should be excavated in two of the more sensitive areas, including the one near Buckeye Brook, to "determine the presence or absence of cultural material."

PAL complied with the SHPO's suggestion in the next phase of its inquiries, excavating nineteen test pits in the Buckeye Brook area. South of Buckeye Brook, this "intensive archaeological survey" found remains of an agricultural homestead that had been inhabited in the eighteenth and nineteenth centuries. PAL reported that "Native American cultural materials ... were recovered in low densities ... and represent incidental incursions," indicating only "limited occupation" of the area by Native Americans. The test excavations uncovered 225 bone fragments; these were analyzed in the lab and all were found to be animal bones, most likely from the homestead's food wastes. Leveillee and other PAL archaeologists prepared a detailed technical report elaborating on these findings. Leveillee testified that further investigation would be required to determine the archaeological significance of the homestead. The report recommended instead that the sewer should be rerouted to avoid the homestead site entirely.

The technical report was again sent to both the SHPO and the THPO in March 2002. The SHPO concurred in the report's recommendations. The Tribe again did not respond. Based on the suggestion made by PAL and the SHPO, the Authority altered the sewer route in April 2002 to avoid the undisturbed area south of Buckeye Brook where the homestead site lies. The new underground route runs south down West Shore Road (which is also state highway Route 117), rather than alongside it, and then turns at the intersection to proceed west down Sandy Lane. West Shore Road was originally built in the early twentieth century and there has been further construction on it several times since.

Although the Tribe did not comment on either of PAL's reports, testimony at the hearing by both Leveillee and the Tribe's deputy THPO, Douglas Harris, indicated that the Tribe did have contact with the Authority and PAL about the sewer project in both 2001 and 2002. According to Harris, this included a meeting with the executive director of the Authority early in the consultation process, and daily cell phone communication with PAL during the test excavations south of Buckeye Brook.

At the construction site on October 18, 2002, Leveillee met with representatives of the THPO, the Authority, and the Army Corps of Engineers to discuss the non-archaeological topic of fish runs in the brook. After discussing the Tribe's concerns, Harris suggested that there might be Narragansett Indian burials in the area south of the brook. This was the first time the Tribe ever mentioned such a prospect. Harris said that he had been told by an eyewitness that human remains had been exposed during previous construction near there, but were immediately covered back up. Leveillee asked for the name of Harris' informant, but Harris declined to provide it. Harris also showed Leveillee a mound of dirt with shell and glass fragments; Harris testified at the hearing that the mound "could be consistent with a burial." The mound was located where the homestead lies, so its surroundings had already been investigated extensively and the sewer route was already changed to avoid the area.

The only other evidence the Tribe presented in the case about burials near West Shore Road was the testimony of Max Brown, a 77-year-old Tribe member and retired construction worker.¹ Brown said he had once worked on a project where a co-worker uncovered bones that "looked like an arm and a leg or [a] hand and a leg;" he did not approach or touch them and he left without finding out what the bones were or what his coworker did with them. When asked to identify the time of this incident, Brown stated that it "must have been the fifties, I guess." As to location, he stated, "Well, I live down around there. I've worked so many places they all look the same. I can't remember just which one is which, but I did — yeah, in them days I had dug up these bones." Eventually, guided by questioning from the Tribe's counsel, Brown marked a map of East Warwick with an "X" near the intersection of West Shore Road and Sandy Lane. Harris also testified that he had spoken to various other Tribe members about the history of the site, although there was no evidence about what they told him.²

Despite the dearth of specific information provided by the Tribe, Leveillee promptly notified the SHPO and the Authority of these new contentions in a letter on October 28, 2002. In light of the new information, he recommended that archaeologists should be on site to monitor all construction activity along West Shore Road near Buckeye Brook and Sandy Lane, rather than merely being on call as was the case elsewhere in the project. The SHPO agreed with this recommendation and wrote a letter to the Authority the next day so stating. Since then, construction in the area has been monitored by on-site PAL archaeologists. In addition, there is a protocol in place for the entire project, written by Leveillee, which dictates how supervisors are to deal with unanticipated discoveries of human remains or other significant materials.

The letter from the SHPO also stated that "monitoring should be conducted in consultation with the [THPO] as required by the National Historic Preservation Act." The Authority and the Tribe held some discussions,...