Narragansett Indian Tribe, Acting B Yand Through the Narragansett Indian Tribal… v. Sean M C Master , Administrator , Federal Highway Administration

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 B Y AND T HROUGH
THE NARRAGANSETT INDIAN TRIBAL HISTORIC P RESERVATION
OFFICE,
APPELLANT
v.
S EAN M C M ASTER , ADMINISTRATOR , F EDERAL 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.

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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: M ILLETT, W ALKER and P AN , Circuit Judges.
Opinion for the Court filed by Circuit Judge M ILLETT.
M ILLETT, 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.

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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

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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).

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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

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“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.

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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.

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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.

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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

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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”).

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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).

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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

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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

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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.

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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.

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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

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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

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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.

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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

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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.

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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).

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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
R ANDOM HOUSE W EBSTER ’S UNABRIDGED D ICTIONARY 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 D ICTIONARY 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

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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

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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

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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

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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.

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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

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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.”

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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.

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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.

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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.

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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

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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.

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