Narragansett Indian Tribe v. Sean McMaster

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 15, 2025 Decided May 22, 2026

No. 24-5193

NARRAGANSETT INDIAN TRIBE, ACTING BY AND THROUGH

THE NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION

OFFICE,

APPELLANT

v.

SEAN MCMASTER, ADMINISTRATOR, FEDERAL HIGHWAY

ADMINISTRATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:22-cv-02299)

Elizabeth T. Walker argued the cause and filed the briefs

for appellant.

Kaitlyn E. Klass was on the brief for amicus curiae United

South and Eastern Tribes Sovereignty Protection Fund in

support of appellant.

2

Dimitar P. Georgiev, Assistant U.S. Attorney, argued the

cause for appellee. On the brief were Jeanine Ferris Pirro,

U.S. Attorney, and Jane M. Lyons and Bradley G. Silverman,

Assistant U.S. Attorneys. Katherine C. Sadeck, Assistant

Attorney General, Office of the Attorney General for the State

of Rhode Island, entered an appearance.

Before: MILLETT, WALKER and PAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: The State of Rhode Island has

been reconstructing a bridge on Interstate 95 in Providence,

Rhode Island for more than a decade. Because the Federal

Highway Administration has provided federal funding for the

construction, the State’s project must comply with the National

Historic Preservation Act (“Preservation Act”), 54 U.S.C.

§ 300101 et seq. The Preservation Act requires federal

agencies funding a state project to “take into account the effect

of the undertaking on any historic property.” Id. § 306108.

Though it was not known at the time I-95 was first built in

the 1950s, the construction disturbed an area that contains

archaeological resources dating back at least 5,000 years and a

site that has cultural and religious significance to the

Narragansett Indian Tribe. That area is now known as the

Providence Covelands Archaeological District (“Covelands”),

a site that is eligible to be listed on the National Register of

Historic Places. J.A. 149.

When Rhode Island sought federal funds to reconstruct

aging parts of the I-95 bridge, the Federal Highway

Administration determined that the project would have

“adverse effects” on the Covelands, and so mitigation efforts

had to be implemented.

3

This case involves a challenge to those mitigation

measures. The Narragansett Tribe alleges that the Highway

Administration’s decision adopting certain mitigation

strategies is (1) contrary to law both because the Tribe was not

adequately consulted and because a tribal official was not

included as a required signatory to the agreement implementing

those strategies, and (2) arbitrary and capricious because the

agency failed to explain changes it had made. The district court

granted summary judgment for the Highway Administration,

and the Tribe has appealed.

We affirm. While the Narragansett Tribe has standing, it

does not succeed on the merits. The Preservation Act’s

implementing regulations do not require that a tribal officer

sign a programmatic agreement when, as here, the affected land

is not tribal land and the mitigation measures take place both

off tribal land and off land that is controlled by or being

transferred to a Tribe. In addition, the Highway Administration

adequately consulted with the Tribe on the development of

mitigation strategies, and it acknowledged and reasonably

explained the changes it made to the final programmatic

agreement.

I

A

Congress enacted the Historic Preservation Act in 1966 to

protect historic sites that would otherwise be threatened by

federally funded development projects. National Historic

Preservation Act, Pub. L. No. 89-665, 80 Stat. 915, 915 (1966).

Congress found that, “in the face of ever-increasing extensions

of urban centers, highways, and residential, commercial, and

industrial developments, [it is] necessary and appropriate for

4

the Federal Government to accelerate its historic preservation

programs and activities[.]” Id.

This case principally concerns Section 106 of the

Preservation Act, 54 U.S.C. § 306108. That Section requires

federal agencies “having direct or indirect jurisdiction over a

proposed Federal or federally assisted undertaking in any

State” to “take into account the effect of the undertaking on any

historic property” before releasing any federal funds. Id.

Relatedly, the Preservation Act requires that, in complying

with Section 106, the federal agency “shall consult with any

Indian tribe * * * that attaches religious and cultural

significance to property” that is “eligible for inclusion on the

National Register [of Historic Places].” 54 U.S.C.

§ 302706(a), (b). To qualify under the statute as “historic,” the

affected properties do not have to be on tribal land, and “may

include Tribal burial grounds, land vistas, and other sites that

Tribal Nations regard as sacred or otherwise culturally

significant” wherever located. United Keetoowah Band of

Cherokee Indians in Oklahoma v. FCC, 933 F.3d 728, 733–734

(D.C. Cir. 2019) (formatting modified). Government-to-

government consultation with affected tribes “is a background

requirement of Section 106 review[.]” Id. at 745.

The Preservation Act tasks the Advisory Council on

Historic Preservation with promulgating regulations that

implement Section 106 review. 54 U.S.C. § 304108(a). These

regulations provide two pathways for an agency to respond

once it has determined that a federally funded project will have

adverse historical impacts. The first option is the formal

“section 106 process[,]” 36 C.F.R. § 800.3, in which a

“memorandum of agreement” dictates certain terms of the

project, aiming to reduce the impact on historic sites as much

as possible, see id. § 800.6(b)–(c).

5

The second option applies when “circumstances warrant a

departure from the normal section 106 process[,]” such as

“[w]hen effects on historic properties cannot be fully

determined prior to approval of an undertaking[.]” 36 C.F.R.

§ 800.14(b)(1)(ii), (v). In that case, the stakeholders can

execute a “programmatic agreement” that provides for

alternative mitigation strategies—known as “program

alternatives”—to remedy any harm done to a historic site. Id.

§ 800.14(b)(2), (f).

As a federal agency is developing program alternatives,

the agency must “ensure * * * appropriate government-to-

government consultation with[,]” among others, “affected

Indian tribes[.]” 36 C.F.R. § 800.14(f). Consultation is defined

as “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.” Id. § 800.16(f). While consultation is a

requirement, neither the Preservation Act nor its implementing

regulations require that an agency “necessarily ‘engage in any

particular preservation activities.’” United Keetoowah Band,

933 F.3d at 734 (quoting CTIA-Wireless Ass’n v. FCC, 466

F.3d 105, 107 (D.C. Cir. 2006)).

A programmatic agreement takes effect when signed by

the Advisory Council, the agency official, and, “when the

programmatic agreement concerns a specific region[,]” the

relevant historic preservation officer(s). 36 C.F.R.

§ 800.14(b)(2)(iii).

B

In 2009, the State of Rhode Island began efforts to

reconstruct portions of an I-95 bridge, known as the

6

“Providence Viaduct,” which runs through Providence, Rhode

Island. Because the project required federal funding, an initial

Section 106 assessment was conducted over the next two years

to determine whether the construction would impact historical

land. See United Keetoowah Band, 933 F.3d at 745 (“Section

106 review comprises four steps: initiation, identification,

assessment [or evaluation], and resolution.”) (quotation marks

omitted). In 2011, the Highway Administration determined

that the reconstruction would have adverse effects on the

Covelands, including on land that is religiously and culturally

significant to the Narragansett Tribe. Because the

Administration “in consultation with” the State of Rhode Island

and the Narragansett Tribe determined that protection and

recovery of the archaeological remains at the Covelands site

were “not feasible due to environmental, logistical, and cost

factors,” the Highway Administration began to negotiate

alternative mitigation measures. J.A. 177.

1

In October 2011, the Administration executed a

programmatic agreement (“First Programmatic Agreement”)

with the Rhode Island State Historic Preservation Officer, the

Rhode Island Department of Transportation, and the

Narragansett Tribe’s Historic Preservation Officer. J.A. 421–

426. This Agreement provided for several mitigation

measures, including that the State would transfer ownership of

two parcels of land to the Narragansett Tribe—the Providence

Boys Club-Camp Davis property and the Chief Sachem Night

Hawk property. The agreement also provided for the State and

the Tribe to share ownership of the Salt Pond Archaeological

Preserve. The Agreement said nothing about the Narragansett

Tribe waiving its sovereign immunity.

7

In January 2013, the Highway Administration permitted

construction on the southbound section of the Providence

Viaduct to proceed.

Eight months later, Rhode Island prepared deeds to

officially transfer the properties identified in the First

Programmatic Agreement to the Narragansett Tribe. The deeds

included a “limited waiver of tribal sovereign immunity[,]”

which stated that the Tribe must “waive [its] sovereign

immunity as to the covenants contained in the deeds[.]” J.A.

125 (capitalization altered). As part of that waiver, the

properties would “be subject to the civil and criminal laws and

jurisdiction of the State of Rhode Island.” J.A. 122. The Tribe

refused to waive its sovereign immunity, and the State, in turn,

refused to transfer the properties without a waiver, which led

to an impasse.

More than three years of unsuccessful negotiations

between the State, the Tribe, and the Highway Administration

ensued. An independent federal agency mediator was brought

in and conducted four mediation sessions, none of which bore

fruit. The Administration also hosted onsite meetings and

published guidance for the State, but to no avail. The Advisory

Council facilitated a meeting on Narragansett tribal land, but

its efforts failed too.

On September 1, 2016, the Highway Administration sent

a letter to Rhode Island stating that the Administration would

not approve any further action related to the Providence

Viaduct unless the State agreed to remove the requirement that

the Tribe waive sovereign immunity. At that point, 90% of the

southbound portion of the Providence Viaduct was complete,

but construction on the northbound portion had not begun.

8

The State refused to budge. As a result of this stalemate,

in January 2017, the Highway Administration terminated the

original programmatic agreement and paused the northbound

project.

2

In June 2018, the Highway Administration issued a letter

to the Advisory Council and affected parties proposing new

mitigation strategies. While the Tribe and Rhode Island would

still share ownership over the Salt Pond Preserve, the State

would not deed any other land to the Tribe. Instead, the State

would provide “an academic-level historic context

document[,]” “a video documentary[,]” and “a teaching

curriculum for Rhode Island public schools” all about the

Tribe. J.A. 186. The State would also conduct “Section 106

training” for tribal members. J.A. 186. The Narragansett Tribe

was deeply dissatisfied with this proposal.

In November 2018, the Highway Administration sent the

Narragansett Tribe a draft of a new programmatic agreement

(“Second Programmatic Agreement”), which included the

terms to which the Tribe had objected, and requested further

comment. J.A. 283. The Administration also explained to the

Tribe that there was a “broad public interest” in permitting the

construction of the Providence Viaduct to go forward because

of the heavy traffic on the I-95 corridor. J.A. 283.

The Narragansett Tribe objected both to the proposed

agreement’s “wholly inadequate” terms and to the drafting

process, which involved “zero consultation or input from the

Tribe.” J.A. 325–326. The Tribe opposed, in particular, the

education initiatives in lieu of land transfer as “insulting” and

“completely unacceptable.” J.A. 326.

9

Over the next few months, the Highway Administration

hosted several telephone calls with the Narragansett Tribe.

One was a Nation-to-Nation consultation—that is, a formal and

individualized conversation between a federal official and a

tribal official. The Administration also conducted two

conference calls with affected parties. Through all of this, the

Tribe continued to voice specific objections, including that the

Tribe’s Historic Preservation Officer had been demoted to a

“Concurring Party” rather than a required “Signatory Party” to

the Agreement. See J.A. 342–343. This change in status meant

that the Tribal Officer’s approval was no longer needed to

execute the agreement. 36 C.F.R. § 800.6(c).

With no signs of a possible compromise and the bridge’s

deterioration posing a safety risk, the Highway Administration

executed the Second Programmatic Agreement. The

Agreement stated that Rhode Island would own the Salt Pond

Preserve, the Providence Boys Club-Camp Davis, and the

Chief Sachem Night Hawk properties. However, the State

would be required to “sign and file preservation covenants for

all three properties * * * that ensure that they will be protected

in perpetuity from any development except for any alterations

agreed upon by all signatories to this agreement.” J.A. 398.

Rhode Island would also ensure that the Narragansett Tribe’s

Historic Preservation Officer and tribal members would have

“continued access to the properties for cultural use.” J.A. 398–

399.

The Second Programmatic Agreement made the Highway

Administration, the Rhode Island State Historic Preservation

Officer, and the Advisory Council required signatories, and it

made the Tribe and the Rhode Island Department of

Transportation “invited signator[ies.]” J.A. 402 (capitalization

omitted). Narragansett’s Tribal Historic Preservation Officer

refused to sign. J.A. 402. Because a programmatic agreement

10

can be executed without invited signatories, see 36 C.F.R.

§ 800.6(c)(2)(iv), the agreement went into effect in September

2019, J.A. 402.

C

This case is the third action pursued by the Narragansett

Tribe involving the Providence Viaduct dispute.

In 2018, after a prior unsuccessful breach of contract suit

against Rhode Island, Narragansett filed suit in the United

Stated District Court for the District of Rhode Island against

the Highway Administration’s Acting Administrator, the

Executive Counsel of the Rhode Island Governor, and the

Rhode Island Department of Transportation. Because the

action involved a federal official, the district court transferred

the case to the United States District Court for the District of

Columbia. 28 U.S.C. § 1404(a). The district court then

dismissed the case against the State defendants without

prejudice for lack of personal jurisdiction. Narragansett

Indian Tribe by & through Narragansett Indian Tribal Historic

Pres. Off. v. Pollack, No. 20-CV-576, 2022 WL 782410, at *5–

6 (D.D.C. Mar. 15, 2022) (“Narragansett I”). The court also

dismissed the case against the federal defendants without

prejudice due to the Tribe’s failure to sufficiently allege

standing. Id. at *7–8.

Five months later, the Narragansett Tribe filed its third

lawsuit against the same defendants. The court again dismissed

the State defendants for lack of personal jurisdiction.

Narragansett Indian Tribe by & through Narragansett Indian

Tribal Historic Pres. Off. v. Pollack, No. 22-CV-2299, 2023

WL 4824733, at *5–7 (D.D.C. July 27, 2023) (“Narragansett

II”).

11

As for the Acting Administrator of the Federal Highway

Administration (“Highway Administration”), the district court

dismissed the Tribe’s claims based on the First Programmatic

Agreement for lack of standing because the court could not

provide relevant redress since it was Rhode Island, not the

Highway Administration, that refused to carry out the land

transfers required by that Agreement. Narragansett II, 2023

WL 4824733, at *7–8. With respect to the Tribe’s claims under

the Second Programmatic Agreement, the district court held

that the Tribe had standing. Id. at *9.

The district court subsequently granted summary

judgment for the Highway Administration. Narragansett

Indian Tribe v. Bhatt, No. 22-CV-2299, 2024 WL 3509491, at

*1 (D.D.C. July 23, 2024) (“Narragansett III”). The court

ruled that the Administration had engaged in adequate

consultation under Section 106 and its implementing

regulations, and that the Narragansett Tribe was not a required

signatory to the Agreement. See id. at *5–15. Finally, the court

rejected the Tribe’s arbitrary and capricious claim, holding that

the Administration had provided an adequate explanation for

its differing treatment of the Tribe in the Second Programmatic

Agreement as compared to the First. Id. at *12.

The Narragansett Tribe timely appealed. 1

1

The Narragansett Tribe did not appeal the district court’s

dismissal of its claim pertaining to the First Programmatic

Agreement. So this appeal involves only the formation and

execution of the Second Programmatic Agreement.

While the appeal was pending, Sean McMaster was confirmed

as the Administrator of the Federal Highway Administration, and he

has been substituted as Appellee. See FED. R. APP. P. 43(c)(2).

12

II

The district court exercised subject matter jurisdiction

under 28 U.S.C. § 1331. This court’s jurisdiction rests on 28

U.S.C. § 1291.

The Highway Administration contends that this court lacks

jurisdiction because the Narragansett Tribe lacks Article III

standing for two reasons. First, the Administration asserts that

the Tribe’s injury was neither caused by the agency nor

redressable, given Rhode Island’s intervening role in the First

Programmatic Agreement’s failure. Second, the

Administration argues that the district court’s first decision on

standing collaterally estops the Tribe from establishing

standing in this case.

The Highway Administration is incorrect on both fronts.

Because the Tribe has pled a procedural injury that is traceable

to the actions of the Highway Administration and redressable

by court order and because the doctrine of collateral estoppel

does not apply here, the Tribe has standing.

A

To demonstrate standing, a plaintiff must have suffered an

injury in fact that is (1) “concrete, particularized, and actual or

imminent”; (2) caused by the defendant; and (3) redressable by

judicial relief. TransUnion LLC v. Ramirez, 141 S. Ct. 2190,

2203 (2021).

1

The Narragansett Tribe has shown that, if the Highway

Administration failed to adequately consult with the Tribe

during the development of the Second Programmatic

13

Agreement, it will have suffered a procedural injury in fact.

Had adequate consultation occurred, the Tribe explains, it

could have obtained better protection over land that has deep

cultural and historical significance for it.

A failure to comply with a statutory consultation

requirement qualifies as an Article III injury. Center for

Biological Diversity v. Zeldin, 171 F.4th 356, 374 (D.C. Cir.

2026) (“An agency’s failure to meet its statutory consultation

requirement is the ‘archetypal procedural injury.’”) (quoting

Center for Biological Diversity v. EPA, 861 F.3d 174, 182

(D.C. Cir. 2017)).

The Highway Administration does not dispute the

existence of an Article III injury to the Narragansett Tribe.

Instead, it argues that the Tribe failed to establish causation

because it was Rhode Island that caused the first agreement to

fall apart by depriving the Tribe of promised land transfers.

The Highway Administration also argues that the Tribe’s injury

is not redressable because, even with further consultation, the

Administration might not have adopted mitigation measures

more amenable to the Tribe. See Admin. Br. 28–29.

To satisfy standing’s causation prong, the Tribe must

connect its lack-of-consultation injury to the Highway

Administration’s adoption of the Second Programmatic

Agreement. Hawkins v. Haaland, 991 F.3d 216, 224 (D.C. Cir.

2021). Under the causation standard for procedural injuries,

the Tribe does not have to show that “but for” the alleged

procedural deficiency, the Highway Administration would

have made a different and more favorable decision for the

Tribe. See id. at 224–225; Lujan v. Defenders of Wildlife, 504

U.S. 555, 572 n.7 (1992). All the Tribe has to show is that the

procedural misstep “was connected to the substantive result”

such that proper consultation could have led to a more

14

favorable outcome. Hawkins, 991 F.3d at 225 (quotation marks

omitted). The Narragansett Tribe has met that standard by

showing that proper consultation could have led to better

protection for lands of historic and cultural concern to the

Tribe. See Tribe Opening Br. 28–29; Center for Biological

Diversity v. EPA, 56 F.4th 55, 68 (D.C. Cir. 2022).

The Highway Administration does not dispute that the

Tribe has met the settled procedural-injury test for causation.

Instead, it argues that normal, stricter standing rules apply

because Rhode Island is a third party “obstacle” to the Tribe

obtaining relief. See Admin. Br. 32 (quoting St. John’s United

Church of Christ v. FAA, 520 F.3d 460, 463 (D.C. Cir. 2008)).

But the Tribe’s challenges to the Second Programmatic

Agreement (which are the only claims on appeal) are distinct

from its dispute over Rhode Island’s actions under the First

Programmatic Agreement. The Tribe’s present objection and

injury focus not on Rhode Island’s failure to deed the land

under the first agreement, but on the Highway Administration’s

failure properly to hew to the Section 106 process and to

meaningfully consult with the Tribe before executing the

second agreement. In other words, the Tribe objects to the

Administration denying it an appropriate seat at the table as the

Second Programmatic Agreement was formulated, which in

turn deprived the Tribe of a fair opportunity to gain culturally

significant land or other benefits, such as funding for

preservation efforts. See Tribe Opening Br. 26–30. Rhode

Island’s past failures have nothing to do with that.

Accordingly, the Narragansett Tribe has adequately shown

both a connection between the alleged lack of adequate

consultation and the Administration’s decision to adopt the

Second Programmatic Agreement’s terms, as well as that

agreement’s adverse impact on the Tribe.

15

2

The Administration also argues that the Narragansett Tribe

has failed to demonstrate redressability because it cannot show

that it would ever have reached an agreement with Rhode

Island on alternate land to be deeded to the Tribe given the

sovereign-immunity Gordian knot. Admin. Br. 29.

That argument is wrong. The Narragansett Tribe has

identified several ways the Highway Administration, were it

ordered by a court to further consult with the Tribe, could adopt

more favorable mitigation terms, which is all that is required

for a procedural injury. See Hawkins, 991 F.3d at 225. For

example, the Administration could “decide that alternative

properties should be managed by the Tribe[.]” Tribe Opening

Br. 30. Alternatively, the Tribe could be given “funding to

develop its own mitigation measures[.]” Id.

The Highway Administration responds that the Tribe’s

“bare assertion that it can use Agency ‘funds’ to ‘develop [its]

own methods of mitigation’ is conclusory[.]” Admin. Br. 33

(quoting Tribe Opening Br. 19) (formatting modified). Yet the

record shows that the Administration and Rhode Island had

previously discussed that very option. See J.A. 157 (“This

letter is to confirm our conversation that it is allowable for

[Rhode Island] to make a payment directly to the Narragansett

Indian tribe to allow them to develop their own methods of

mitigation for the impacts of the Providence Viaduct

construction[.]”).

Because the Narragansett Tribe has identified alternative

mitigation proposals that are both possible and amenable to the

Tribe, it has demonstrated redressability and, with that, has

established Article III standing.

16

B

The Administration argues, in the alternative, that the

doctrine of collateral estoppel, also known as issue preclusion,

bound the district court—and now this court—to the earlier

decision ruling that the Narragansett Tribe had not

demonstrated standing in its first complaint and dismissing that

complaint without prejudice. See Admin Br. 24 (citing

Narragansett I, 2022 WL 782410, at *8). The Administration

is incorrect.

Collateral estoppel means that “a prior judgment

forecloses successive litigation of an issue of fact or law

actually litigated and resolved in a valid court determination

essential to the prior judgment.” Herrera v. Wyoming, 139 S.

Ct. 1686, 1697 (2019) (formatting modified). “The idea is

straightforward: Once a court has decided an issue, it is

‘forever settled as between the parties[.]’” B & B Hardware,

Inc. v. Hargis Indus., Inc., 575 U.S. 138, 147 (2015) (quoting

Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522,

525 (1931)). Said another way, “a losing litigant deserves no

rematch after a defeat fairly suffered.” Id. (quoting Astoria

Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107 (1991)).

Collateral estoppel applies only if the issue was “actually

decided” in a prior case. Lucky Brand Dungarees, Inc. v.

Marcel Fashions Group, Inc., 140 S. Ct. 1589, 1594 (2020).

That did not happen here. The district court never ruled on

whether the Tribe had standing to bring a procedural-injury

claim related to the failure to consult. While the court pointed

to a vague line in the Tribe’s amended complaint about a right

to consultation, the court stated that it is ultimately “not clear”

whether the Tribe was asserting a “failure to consult” injury in

its first complaint. See Narragansett I, 2022 WL 782410, at

*7. After all, the court noted, “Narragansett did not provide

17

explanation” of such an injury “in its briefing[,]” nor did it

dispute the Highway Administration’s “characterization of the

alleged injuries as being harm to the land itself and deprivation

of the land.” Id. The court ultimately determined that the Tribe

had “laid out too few breadcrumbs” and “left too many

questions unanswered” for the court to determine whether the

Tribe was raising a procedural injury theory of standing, let

alone to decide whether the Tribe would have standing under

such a theory. Id. at *8; see also id. (“[T]he Court hesitates to

speculate about how standing can be shown when Narragansett

declined the opportunity to * * * more fully explain how it has

standing.”); id. (“Adopting any of the hypothetical arguments

or interpretations discussed by the Court in this opinion

regarding standing would have required an uncomfortable level

of speculation.”). Nor could the district court divine, based on

the Tribe’s pleading, whether such a procedural injury would

relate to the First Programmatic Agreement or the Second. See

id. at *7 n.7.

Because of all the uncertainties in this record, the district

court expressly invited the Tribe to “try again” should it wish

to assert a procedural injury like the failure-to-consult claim

now pressed by the Tribe. Narragansett I, 2022 WL 782410,

at *8. That discussion by the district court bears little

resemblance to the full and conclusive determination of a legal

issue to which collateral estoppel would apply.

The Highway Administration argues that the Tribe can

establish standing “only if a material change following

dismissal cured the original jurisdictional deficiency.” Admin.

Br. 23 (quoting National Ass’n of Home Builders v. E.P.A., 786

F.3d 34, 41 (D.C. Cir. 2015)). That argument, which invokes

the “curable defect” doctrine, puts the cart before the horse.

The “curable defect” doctrine provides an exception to “the

preclusive effect of issues already fairly and finally determined

18

in prior litigation” when subsequent events render standing

proper. National Ass’n of Home Builders, 786 F.3d at 41–42;

Scahill v. District of Columbia, 909 F.3d 1177, 1182 (D.C. Cir.

2018). Because there was no prior final and conclusive

determination of the Tribe’s standing to procedurally challenge

the formation of the Second Programmatic Agreement, there is

no issue preclusion for which the Tribe needs an exception. 2

For all those reasons, the Tribe has standing in this case.

III

Turning to the merits, the Narragansett Tribe argues that

the Highway Administration acted both contrary to law and

arbitrarily and capriciously when it failed to make the Tribe a

required signatory to the Second Programmatic Agreement and

did not meaningfully consult with the Tribe during the

formation of the Agreement. None of these arguments

succeed.

A

1

The Narragansett Tribe first contends that the

Administration acted contrary to the Section 106 regulations

2

The Highway Administration did not raise the affirmative

defense of collateral estoppel before the district court either in its

motion for summary judgment or its opposition to the Tribe’s cross-

motion for summary judgment. Nevertheless, the Administration

argues that it properly preserved this argument on appeal because it

asserted “[c]laim and/or issue preclusion” as an enumerated defense

in its Answer. Admin Br. 27 (citing J.A. 38). The Tribe does not

argue otherwise. We accordingly assume without deciding that the

Administration preserved this issue.

19

when it failed to make the Tribe a required signatory to the

Second Programmatic Agreement. That argument fails.

The regulations promulgated by the Advisory Council

enumerate three kinds of signatories to programmatic

agreements or memoranda of understanding. See 36 C.F.R.

§ 800.6(c). First, “[s]ignatories”—what we will call “required

signatories” for clarity—are parties that “have sole authority to

execute” an agreement. 36 C.F.R. § 800.6(c)(1). Without each

required signatory, an agreement cannot go into effect.

The second tier is “[i]nvited signatories[,]” who are

“additional parties” that the agency official “may invite” to join

the agreement. 36 C.F.R. § 800.6(c)(2)(i). For example, an

“agency official may invite an Indian tribe * * * that attaches

religious and cultural significance to historic properties located

off tribal lands” to be an invited signatory, and the agency

official also “should invite any party that assumes a

responsibility” under the agreement. Id. § 800.6(c)(2)(ii), (iii)

(emphases added). Invited signatories are not necessary for the

execution of an agreement, but they can “seek[] amendment or

termination” once the agreement is in place. Id.

§ 800.6(c)(2)(i), (iv).

Finally, an agency “may invite all consulting parties to

concur” in an agreement. 36 C.F.R. § 800.6(c)(3). The

signature of concurring parties is not necessary to execute an

agreement, and they do not enjoy the termination and

amendment powers accorded to invited signatories. Compare

id. § 800.6(c)(3), with id. § 800.6(c)(2)(i). 3

3

While 36 C.F.R. § 800.6 governs the formal Section 106

process, an agency may “substitute” a programmatic agreement “for

20

Both the Tribe’s Historic Preservation Officer and the

Rhode Island Department of Transportation were “invited

signatories” to the Second Programmatic Agreement. J.A. 402

(capitalization altered); see 36 C.F.R. § 800.6(c)(1). As an

“invited” signatory, the Tribe’s signature—and by extension its

approval—were not required, and so it could not block the

agreement’s adoption. Compare 36 C.F.R. § 800.6(c)(1), with

id. § 800.6(c)(2)(iv).

Because neither the reconstruction of the Providence

Viaduct nor any of the mitigation strategies included in the

Second Programmatic Agreement affected tribal lands or their

acquisition, nothing in the regulations or agency guidance

obligated the Highway Administration to include the Tribe as

a required signatory.

The governing regulation states, in relevant part:

The programmatic agreement shall take effect when

executed by the Council, the agency official and the

appropriate SHPOs/THPOs [State Historic

Preservation Officers/Tribal Historic Preservation

Officers] when the programmatic agreement concerns

a specific region * * *. A programmatic agreement

shall take effect on tribal lands only when the THPO,

Indian tribe, or a designated representative of the tribe

is a signatory to the agreement. * * * If a THPO

assumes the responsibilities of a SHPO pursuant to

all or part” of the formal process, 36 C.F.R. § 800.14(a). Here, the

Highway Administration has engaged in just such a mix-and-match

of the two processes. For example, the Administration’s inclusion

of “invited signatories” in the final Second Programmatic

Agreement, J.A. 402, derives from the formal Section 106 process,

36 C.F.R. § 800.6(c)(2). So the regulations cast helpful light on the

signature issue pressed by the Tribe.

21

section 101(d)(2) of the act and the SHPO is signatory

to [the] programmatic agreement, the THPO assumes

the role of a signatory, including the right to terminate

a regional programmatic agreement on lands under

the jurisdiction of the tribe.

36 C.F.R. § 800.14(b)(2)(iii).

The crux of the disagreement between the Narragansett

Tribe and the Administration is over the meaning of the

virgule—the forward slash (/)—between “SHPO” (State

Historic Preservation Officer) and “THPO” (Tribal Historic

Preservation Officer) in the opening sentence of the regulation.

The Tribe argues that the virgule means “and” so that both state

and tribal officers are always required signatories. The

Administration counters that the virgule means that one officer

“or” the other is required, not necessarily both, and that the

other sentences in this subsection support that reading.

The Tribe is mistaken in reading the virgule in this context

to always mean “and.”

A virgule is a rare bird in statutory and regulatory language,

perhaps due to “the sloppy ambiguity” it can cause. Quezada-

Daza v. United States, 107 F. App’x 808, 809 (9th Cir. 2004).

Most commonly, the virgule “is used to separate alternatives,”

not as a conjunction. Knous v. United States, 683 F. App’x

859, 864 (11th Cir. 2017); see also id. at 863–864 (rejecting

reading of a virgule to mean “and”); Dynalectron Corp. v.

Equitable Tr. Co., 704 F.2d 737, 739 (4th Cir. 1983) (reading

a virgule as separating alternatives and rejecting an argument

that it meant “and”); Heritage Bank v. Redcom Labs., Inc., 250

F.3d 319, 326 & n.6 (5th Cir. 2001) (same); United States v.

Owens, 904 F.2d 411, 414 (8th Cir. 1990) (same).

22

What precisely the virgule means often depends on

context. And when, as here, neither the undertaking nor the

programmatic agreement affects tribal land, nor did the

agreement involve tribal acquisition of or control over land, the

regulation’s plain meaning requires only the signature of the

State Historic Preservation Officer, and not the Tribal Officer.

Dictionaries around the time of the promulgation of these

regulations corroborate that the virgule usually signifies

alternatives, unless the context dictates otherwise. See

RANDOM HOUSE WEBSTER’S UNABRIDGED DICTIONARY 2125

(def. 1) (2d ed. 1998) (defining “virgule” as “a short oblique

stroke (/) between two words indicating that whichever is

appropriate may be chosen to complete the sense of the text in

which they occur”); THE AMERICAN HERITAGE DICTIONARY OF

THE ENGLISH LANGUAGE, 1995 (def. 1) (3rd ed. 1996) (defining

“virgule” as “[a] diagonal mark ( / ) used especially to separate

alternatives, as in and/or”).

Regulatory context confirms that, in this situation, the

virgule does not mean “and.” The first sentence of the

subsection states that a programmatic agreement will take

effect when signed by “the appropriate SHPOs/THPOs when

the programmatic agreement concerns a specific region[.]” 36

C.F.R. § 800.14(b)(2)(iii) (emphasis added). So the

requirement for execution by either the State or Tribal Officer

is qualified: Which signatures are required depends on what

“specific region” is affected by the project or mitigation

measures. Id. That is, a State Officer’s signature will be

required when the undertaking or mitigation program involve

matters within the geographic control of that State. The same

is true for a Tribal Officer when the affected historic properties

or mitigation measures are located on existing or to-be-

acquired tribal lands or on land otherwise under the Tribe’s

governmental control. Only when the agreement affects both

23

state and tribal lands will the virgule conjunctively require both

officers’ signatures.

The next sentence of the regulation follows from that same

understanding: “A programmatic agreement shall take effect

on tribal lands only when the THPO, Indian tribe, or a

designated representative of the tribe is a [required] signatory

to the agreement.” 36 C.F.R. § 800.14(b)(2)(iii). If the first

sentence of the subsection required a Tribal Officer in all

circumstances, there would be no reason for the Advisory

Council to have included a separate sentence identifying the

more specific circumstances when a tribal representative’s

signature is required. Courts generally read regulations, like

statutes, to avoid superfluity. See National Ass’n of Home

Builders v. Defenders of Wildlife, 551 U.S. 644, 668 (2007).

The last sentence brings the point home: “If a THPO

assumes the responsibilities of a SHPO pursuant to section

101(d)(2) of the [A]ct and the SHPO is signatory to [the]

programmatic agreement, the THPO assumes the role of a

signatory, including the right to terminate a regional

programmatic agreement on lands under the jurisdiction of the

tribe.” 36 C.F.R. § 800.14(b)(2)(iii) (emphasis added). There

would be no reason for the Tribal Officer ever to “assume[] the

role of a signatory” if that person were always a required

signatory. Id.

The sentence’s reference to Section 101(d)(2) of the

Preservation Act makes the same point: “An Indian tribe may

assume all or any part of the functions of a State Historic

Preservation Officer * * *, with respect to tribal land, as those

responsibilities may be modified for tribal programs through

regulations issued by the Secretary[.]” 54 U.S.C. § 302702

(emphases added). This statutory focus on tribal land

underscores that the Tribal Historic Preservation Officer’s

24

signature is required only when the undertaking or

programmatic agreement involves tribal lands, or the

agreement deeds lands to the Tribe or renders them under the

Tribe’s control.

Parallel regulations governing the formal Section 106

process, which regulate memoranda of agreement rather than

programmatic agreements, likewise indicate that a tribal

representative is at most an invited signatory if tribal lands are

not implicated. The regulation is explicit that “[t]he agency

official may”—not must—“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.” 36

C.F.R. § 800.6(c)(2)(ii) (emphasis added). In contrast, the

agency “should invite any party that assumes a responsibility

under a memorandum of agreement to be a signatory.” Id.

§ 800.6(c)(2)(iii) (emphasis added).

Lastly, agency guidance from the Advisory Council—the

agency that promulgated the Section 106 regulations—also

reads the virgule as identifying alternative signatories when

“the undertaking or affected historic properties are not on tribal

lands.” J.A. 98. The Advisory Council’s Handbook on

Consultation with Indian Tribes in the Section 106 Review

Process directly answers the question: “Is the federal agency

obligated to invite an Indian tribe to be a signatory or a

concurring party to an MOA [Memorandum of Agreement] or

PA [Program Alternative]” that is off tribal lands? J.A. 98.

No, 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. * * * Certainly, agencies are

encouraged to invite Indian tribes that attach religious

25

and cultural significance to affected historic

properties to sign the agreement. If a tribe is assuming

review or other responsibilities under the MOA or PA,

the agency should consider inviting the tribe to

become a signatory.

J.A. 98.

In short, the plain text of the implementing regulation, the

surrounding context, and agency guidance establish that the

Tribe was not a required signatory to the Second Programmatic

Agreement because the effects of the Providence Viaduct,

namely, the impact on the Covelands, occur off tribal land, and

the historic sites addressed in the programmatic agreement are

not and will not become tribal land or be controlled by the

Tribe.

2

The Tribe next argues that the Highway Administration

acted contrary to law in failing to consult in good faith with the

Tribe in developing the Second Programmatic Agreement. The

record forecloses that contention.

The Preservation Act mandates that “a Federal agency

shall consult with any Indian tribe * * * that attaches religious

and cultural significance” to historic property threatened by a

federal “undertaking[.]” 54 U.S.C. §§ 302706(b), 306108.

Both sides agree that the consultation requirement applied to

the Highway Administration’s formulation of the Second

Programmatic Agreement. They disagree, however, on what

that requirement entails.

While the Preservation Act imposes a duty to consult, it

does not elaborate on the contours of that duty. Regulations

26

promulgated by the Advisory Council, though, provide helpful

guidance on what, in the Council’s view, constitutes adequate

consultation, see 36 C.F.R. pt. 800. One regulation states, as

relevant here, that an agency must “ensure that consultation in

the section 106 process provides the Indian tribe * * * a

reasonable opportunity to”:

• “identify its concerns about historic properties,”

• “advise on the identification and evaluation of historic

properties, including those of traditional religious and

cultural importance,”

• “articulate its views on the undertaking’s effects on

such properties,”

• “and participate in the resolution of adverse effects.”

36 C.F.R. § 800.2(c)(2)(ii)(A).

In addition, in proposing a program alternative, an agency

must “ensure that development” of that mitigation strategy

includes “appropriate government-to-government consultation

with affected Indian tribes[.]” 36 C.F.R. § 800.14(f). In those

consultations, the agency and Advisory Council must take the

Tribe’s views “into account in reaching a final decision on the

proposed program alternative.” Id. § 800.14(f)(2).

Finally, “consultation” is defined as “the process of

seeking, discussing, and considering the views of other

participants, and, where feasible, seeking agreement with

them[.]” 36 C.F.R. § 800.16(f).

Said more simply, meaningful consultation occurs when

the affected tribes are afforded an opportunity to share their

concerns about a project, participate in the formulation of a

program alternative, and raise concerns regarding a mitigation

proposal. See United Keetoowah Band, 933 F.3d at 750–751.

27

Importantly, Section 106 promises consultation and

consideration, not particular results. As long as agencies

“‘seek[], discuss[], and consider[] the views of’ the Tribes,

even if [they] d[o] not ultimately adopt those views[,]” the

Section 106 consultation requirement is satisfied. Id. at 751

(quoting 36 C.F.R. § 800.16(f)).

The Highway Administration met that consultation

obligation here.

To start, the Highway Administration provided the

Narragansett Tribe with a reasonable opportunity to participate

in the crafting of the Second Programmatic Agreement.

Between October 2018 and July 2019, the Administration sent

five letters to the Tribe explicitly requesting its comments on

various drafts of the Second Programmatic Agreement and

related documents. See J.A. 188 (letter asking for comments

on proposed changes from First Programmatic Agreement);

J.A. 283–290 (letter asking for comments on first draft of

Second Programmatic Agreement); J.A. 328 & 329 (letters

seeking comments on draft deed for the Salt Pond Preserve);

J.A. 362 (letter seeking comments on second draft of the

Second Programmatic Agreement).

The Administration also invited the Narragansett Tribe to

participate in three telephonic conferences to discuss the

Second Programmatic Agreement’s development. See J.A.

281, 313 (conference call with all signatories and Tribe), J.A.

379 (Nation-to-Nation call between Administration and Tribe),

J.A. 371 (call with signatories to which Tribe was invited).

The Narragansett Tribe does not dispute the frequency or

timeliness of the Administration’s communications and

outreach. Its argument, instead, is that the agency had already

made up its mind on the content of the Second Programmatic

28

Agreement before obtaining the Tribe’s views on the new

mitigation strategies.

The record shows otherwise. The Highway

Administration made significant changes to the Second

Programmatic Agreement’s content that responded to the

Tribe’s views and objections.

First, the Highway Administration originally circulated a

draft programmatic agreement that proposed, among other

things, that Rhode Island develop (1) “a professional

publication * * * that compiles and summarizes the available

ethnographic, archaeological, scientific and other literature,

accounts, and studies regarding the history of the Narragansett

Tribe in Rhode Island[,]” (2) “a full-length documentary film

about the Narragansett Indian Tribe in Rhode Island[,]” and (3)

“an educational curriculum * * * regarding the history of the

Narragansett Tribe in Rhode Island.” J.A. 285–287. After the

Tribe called those measures “insulting,” J.A. 326, the Highway

Administration removed them, J.A. 396–402.

Second, the initial draft of the Second Programmatic

Agreement did not even mention the “Providence Boys Club-

Camp Davis” and the “Chief Sachem Night Hawk” properties,

see J.A. 284–290, that the Tribe had hoped to acquire under the

First Programmatic Agreement. After consultation with the

Tribe, the final version of the Second Programmatic

Agreement included “preservation covenants for all three

properties * * * that ensure that they will be protected in

perpetuity from any development except for any alterations

agreed upon by all signatories to this agreement,” which the

Highway Administration had expected would include the

Tribe. J.A. 398. The covenants also mandate that the Tribe’s

Tribal Historic Preservation Officer and Tribal members be

afforded “continued access to the properties for cultural use.”

29

J.A. 398–399. While these changes do not afford the Tribe the

full control offered by the First Programmatic Agreement, the

inclusion of these covenants responded to the Tribe’s

frequently stated concerns about Rhode Island retaining full

control over these lands given their historical and cultural

significance to the Tribe. See, e.g., J.A. 364; J.A. 367.

Third, the Highway Administration upgraded the Tribe’s

signatory status. The first draft of the Second Programmatic

Agreement listed the Tribe’s Historic Preservation Officer as

only a “concurring part[y,]” J.A. 290 (capitalization altered).

After the Tribe objected, the Highway Administration elevated

the tribal officer’s status to an “invited signatory,” J.A. 402

(capitalization altered).

While the Tribe focuses on its desire to receive the land

transfers for which the First Programmatic Agreement had

provided, Section 106 “is a ‘stop, look, and listen’ provision[.]”

Illinois Com. Comm’n v. Interstate Com. Comm’n, 848 F.2d

1246, 1260–1261 (D.C. Cir. 1988). The Act does not require

any specific outcomes. Davis v. Latschar, 202 F.3d 359, 370

(D.C. Cir. 2000).

Having provided the Narragansett Tribe with multiple

opportunities to provide input and having incorporated the

Tribe’s feedback to the extent feasible in a multi-party

agreement, the Highway Administration adequately discharged

its statutory obligation to consult. 4

4

The Narragansett Tribe contends that the district court erred

by impermissibly giving Chevron deference to the Highway

Administration’s interpretation of the Section 106 process given

Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). But

the district court did not defer to the agency’s legal conclusions and

instead conducted its own de novo analysis, as Loper Bright directs.

30

B

In addition to the Narragansett Tribe’s contrary to law

arguments, the Tribe contends that the Highway

Administration’s change in position from the First

Programmatic Agreement to the Second Programmatic

Agreement was an arbitrary and capricious change of policy

without adequate explanation. The Tribe challenges both the

substantive changes between the two Agreements and the

change in the Tribe’s signatory status.

Neither argument succeeds. Agencies may change their

policies if they (1) “display awareness that they are changing

position,” (2) “provide a reasoned explanation for the change,”

and (3) “consider serious reliance interests.” Food & Drug

Admin. v. Wages & White Lion Invs., L.L.C., 145 S. Ct. 898,

918 (2025) (formatting modified). The Highway

Administration has done all three here.

1

The Highway Administration adequately acknowledged

and reasonably explained the substantive changes between the

First and Second Programmatic Agreements, and it addressed

the Tribe’s reliance interests.

On January 19, 2017, the Highway Administration wrote to

all affected parties, including the Narragansett Tribe, advising

that it was terminating the First Programmatic Agreement. J.A.

170. The letter cited to the intractable disagreement between

Rhode Island and the Tribe over the State’s refusal to deed land

See Narragansett III, 2024 WL 3509491, at *8–15. We have done

the same.

31

without a waiver of sovereign immunity. J.A. 170. The

Administration stated that, despite years of effort, it “has not

been able to resolve the impasse.” J.A. 171.

Seventeen months later, the Highway Administration

informed the same parties that it was “reinitiat[ing] the Section

106 consultation for the [Providence Viaduct] project and

draft[ing] a new” programmatic agreement in response to the

comments of the Advisory Council “and all Section 106

consulting parties,” including the Tribe. J.A. 186–187.

The letter then enumerated proposed changes to the

mitigation measures. J.A. 186. The agency laid out what

would stay the same from the First Programmatic Agreement

(joint ownership of the Salt Pond Preserve) and what would

change (no transfer of the other two properties). Id. The

Administration’s acknowledgment of the changes between the

two agreements could hardly have been more explicit.

The Highway Administration also reasonably explained

why it was making the changes. Because Rhode Island

refused to relent on its demand for a waiver of tribal sovereign

immunity, the initial plan for deeding the Providence Boys

Club-Camp Davis and Chief Sachem Night Hawk properties to

the Tribe could not go forward. At the same time, the

imperative concerns for public safety and the pressing

transportation needs in a heavily trafficked area required the

Highway Administration to forge a new programmatic

agreement for the construction project. See J.A. 283.

No serious reliance interests were impacted by this change,

because the Tribe never owned any of the property enumerated

in the First Programmatic Agreement since the land transfers

never occurred. J.A. 170–171.

32

Finally, on July 11, 2019, the Highway Administration

notified the Tribe and other affected parties of the mitigation

terms adopted in the Second Programmatic Agreement after

consultation with the Tribe. J.A. 389. The agency explained

that the agreement would “preserve[]” the properties originally

meant to be deeded to the Tribe, and that “[t]he proposed

transfer of the Salt Pond Archaeological Preserve property to

[Rhode Island],” rather than to the Tribe, “is the result of the

Tribe not accepting the conditions stipulated in the Draft

Bargain and Sales Deed transmitted to the Tribe on December

19, 2018 for review and comments[,]” a conclusion the record

supports. J.A. 389.

In short, the Highway Administration’s execution of the

new agreement was “permissible under the statute,” and the

agency reasonably explained its “conscious change[.]” See

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).

Nothing more was required.

2

The Tribe also labels arbitrary and capricious the

Administration’s change in required signatories. The First

Programmatic Agreement included four required signatories:

the Highway Administration, the State Historic Preservation

Officer, the Tribe’s Historic Preservation Officer, and the

Rhode Island Department of Transportation. J.A. 426. When

the Administration circulated a draft of the Second

Programmatic Agreement to the Tribe in November 2018, the

draft listed the Tribe as a concurring party rather than a

signatory. J.A. 290. But the final version of the Second

Programmatic Agreement elevated the status of the Tribe to an

“invited signatory[,]” while keeping the Advisory Council as a

required signatory and including the Rhode Island Department

33

of Transportation as an invited signatory like the Tribe. J.A.

402 (capitalization altered).

The Highway Administration acknowledged and

adequately explained its initial change in the Tribe’s signatory

status from a required party under the First Programmatic

Agreement to a concurring party in the Second Programmatic

Agreement. The agency reasoned that the Tribe was no longer

a required signatory because “the mitigation commitments in

the [draft programmatic agreement] do not require any action

or responsibility on the Tribe.” J.A. 346 (citing 36 C.F.R.

§ 800.6(c)(3)). More specifically, unlike under the First

Programmatic Agreement, no land was being deeded to the

Tribe under the Second Programmatic Agreement, so it was no

longer a required signatory, see Section III.A.1., supra, and the

Tribe had no duties to perform, so it no longer had to be treated

as an “[i]nvited signator[y,]” 36 C.F.R. § 800.6(c)(2)(iii).

Accordingly, the Highway Administration both acknowledged

the change and reasonably explained it.

It is not clear from the Tribe’s briefing if it also objects to

the elevation in its status from a concurring party to an invited

signatory. That argument would fail regardless. The Highway

Administration elevated the Tribe from concurring party to

invited signatory after extensive consultation with the Tribe,

see Section III.A.2., supra, and after the Tribe specifically

objected to its status as a mere concurring party, see J.A. 313,

326. No further explanation was necessary.

IV

For the foregoing reasons, we affirm the district court’s

grant of summary judgment to the Highway Administration

and its denial of the Narragansett Tribe’s cross-motion for

summary judgment.