MEMORANDUM AND ORDER

WILLIAM E. SMITH, Chief District Judge.

Before the Court are two Motions To Dismiss: the first motion (ECF No. 18), filed by Defendants the Federal Highway Administration ("FHWA") and the Advisory Council on Historic Preservation ("ACHP") (collectively, "Federal Defendants"), and the second motion (ECF No. 19) filed by the State of Rhode Island Department of Transportation ("RIDOT") and the Rhode Island Historical Preservation and Heritage Commission ("RIHPHC") (collectively, "State Defendants"). In response to both Motions, Plaintiff the Narragansett Indian Tribe ("Tribe"), by and through the Narragansett Indian Tribal Historical Preservation Office ("NITHPO") filed an objection (ECF No. 23). After careful consideration, both Motions To Dismiss are hereby GRANTED for the reasons that follow.

I. Background

This case stems from a dispute over an extensive highway project, the Providence Viaduct Bridge No. 578 Replacement Project,1 and its prospective impact on historically significant land. In relation to the Undertaking, a Programmatic Agreement ("PA") was executed between Plaintiff, RIDOT, FHWA, and the Rhode Island State Historic Preservation Officer ("RISHPO") pursuant to Section 106 of the National Historic Preservation Act of 1966, 54 U.S.C. §§ 300101 et seq. ("NHPA").2 (Compl. ¶ 10, ECF No. 1.) Effective October 3, 2011, the PA was instituted to govern the Undertaking, primarily to address any impact that it might have on historic land. (Id.) The PA included various stipulations concerning the transfer of land, which the parties later amended, in certain respects, on January 17, 2013. (Id. ¶ 11.)

Importantly, one such amended 3 stipulation provided that RIDOT must acquire and transfer ownership in various historic properties to the State of Rhode Island jointly with NITHPO "for and on behalf of" the Tribe. (Compl., Ex. B at 2-3.) These "significant Narragansett Indian Tribal cultural" properties (collectively, "Tribal Historical Properties"), located within the "Providence Covelands Archaeological District (RI 935)" included the Salt Pond Archaeological Preserve in Narragansett, the "Providence Boys Club — Camp Davis," and the "Chief Sachem Night Hawk property (a.k.a. Philip Peckham property)," both in Charlestown. (Id.) Included in each stipulation was assurance that "[a]ppropriate covenants that preserve the property and its cultural resources in perpetuity shall be included in the deed for said property." (Id.)

Although RIDOT acquired all of the Tribal Historical Properties, on September 16, 2013, it informed NITHPO via letter that it would not transfer the Providence Boys Club — Camp Davis property unless and until the Tribe waived its sovereign immunity with respect to the deed covenants and consented to subject the property to Rhode Island's jurisdiction, and civil and criminal laws.4 (Compl., Ex. C at 2-3.) Plaintiff, however, refused to agree to RIDOT's proposed conditions, citing the absence of such conditions in both the PA and amendments thereto. (Compl. ¶ 16-17.) Additionally, attempts at resolution by the parties were not successful. (Id. ¶ 18-20.) On February 15, 2017, FHWA and/or RIDOT sought to terminate the PA. (Id. ¶ 21; Compl., Ex. D at 2.) On March 3, 2017, the ACHP advised Plaintiff via letter that because the parties had reached an impasse in resolving any "adverse effects to historic properties," the ACHP was required to issue advisory comments to the Secretary of Transportation. (Compl., Ex. D at 2.) The ACHP further acknowledged in the letter that "[b]oth the FHWA and the ACHP concluded that the requirement by RIDOT that the tribe waive its sovereign immunity in order to receive this land was not a requirement of the PA; however, efforts to urge the state to reconsider that condition have been unsuccessful." (Id. at 3.)

On March 31, 2017, Plaintiff initiated the instant lawsuit against Federal and State Defendants asserting breach-of-contract claims and seeking declaratory and injunctive relief. (Compl. ¶¶ 26-36.) These motions followed.

II. Legal Standard

When construing a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, courts apply a similar standard to the standard for Rule 12(b)(6).5 In this context, the onus is on Plaintiff to establish that jurisdiction exists.6

To withstand a motion to dismiss under Rule 12(b)(6), a complaint must set forth "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"7 "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."8

III. Discussion

A. Statutory Background

The NHPA, 54 U.S.C. §§ 300101-320303, assigns federal agencies procedural responsibilities to contemplate the impact that its projects (i.e., projects federal agencies fund, license, or carry out) have on historic properties. At the core of the NHPA is the goal of ensuring that historical resources are preserved.9 In relevant part, the NHPA provides that, "prior to the approval of the expenditure of any Federal funds on the undertaking . . ., [a federal agency] shall take into account the effect of the undertaking on any historic property."10

Congress created the ACHP to oversee the implementation of section 106, and the ACHP has disseminated regulations to this end.11 Chief among these regulations is the explanation of the "section 106 process" and its purpose.12 The regulations explain that beginning at the early stages of project planning, section 106 strives "to accommodate historic preservation concerns with the needs of Federal undertakings through consultation among the agency official" and other interested parties.13 The primary objective of this consultation is "to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties."14 Moreover, the regulations permit the ACHP to "negotiate a programmatic agreement to govern the implementation of a particular program or the resolution of adverse effects from certain complex project situations or multiple undertakings."15

B. Federal Defendants' Motion To Dismiss (12(b)(1))

Despite the apparent intricacy at play between the NHPA and its corresponding regulations, Plaintiff's claims directed at Federal Defendants must fail for a simpler reason: there has been no waiver of sovereign immunity. When considering, as here, a suit brought against the United States or its agencies, the first step must be to consider whether sovereign immunity has been waived16 because "[a]bsent express waiver of sovereign immunity, federal courts lack subject matter jurisdiction over suits against the United States."17 For the federal government to consent to suit, "waiver of sovereign immunity must be `unequivocally expressed' in statutory text."18 In this instance, however, no such unequivocal expression of a waiver is present in the NHPA or the Declaratory Judgment Act, and therefore, a right of action can only exist under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA").19

Yet it seems Plaintiff's citation to the APA is similarly unavailing. Although the APA explicitly provides for a waiver of sovereign immunity, it only permits "judicial review of the final actions taken by federal agencies." 20 Under well-established administrative law jurisprudence, "`a final agency action' is one that `mark[s] the consummation of the agency's decisionmaking process.'"21 Here, Plaintiff's claims for declaratory judgment, injunctive relief, and breach of contract, are generally premised on RIDOT's refusal to transfer the Tribal Historic Properties' title to Plaintiff. Indeed, it appears that the only allegation Plaintiff directs at Federal Defendants is that, "FHWA has in its possession or controls funds allocated to fulfill its agreements under the PA." (Compl. ¶ 25.) Notably, Plaintiff's Complaint is devoid of any assertion that Federal Defendants' final agency action caused Plaintiff harm.22 Accordingly, Federal Defendants' Motion To Dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure is GRANTED.

C. State Defendants' Motion To Dismiss

State Defendants move to dismiss for failure to state a claim upon which relief can be granted based on Rule 12(b)(6) of the Federal Rules of Civil Procedure. (State Defendants' Mot. To Dismiss, ECF No. 19 at 1.) In support of its motion, State Defendants suggest that each of Plaintiff's claims outlined in its Complaint should be dismissed because: (1) a private right of action is not provided by the NHPA; (2) the PA's express terms permit termination at any time; and (3) Plaintiff has not demonstrated a clear entitlement to injunctive relief. (Id.)

This Court need not delve into the merits of State Defendants' assertions because Plaintiff cannot clear a preliminary jurisdictional roadblock.23 Plaintiff's claims pursuant to the Declaratory Judgment Act must fail because "[t]he Declaratory Judgment Act does not in itself confer subject matter jurisdiction; it provides a remedy for disputes already having federal jurisdiction."24 In other words, to survive a motion to dismiss, Plaintiff's claims must "come within the federal courts' jurisdiction on some other basis."25

The two other bases that Plaintiff cites to afford jurisdiction, that is, the federal questions from which this dispute emanates, are the APA and the NHPA. Plaintiff's averment with respect to the APA is easily disposed of, however, because "the APA only provides for review of federal agency action. . . . It does not provide a right of action against a state agency."26 This obviates Plaintiff's reliance on the APA as a jurisdictional hook in asserting claims against RIDOT and RIHPHC — both state-agency defendants.

Knocking out Plaintiff's reliance on the APA, the Court must still consider whether Plaintiff could be entitled to relief pursuant to the NHPA.27 As an initial matter, the Court notes that the crucial inquiry in this respect, i.e., whether Section 106 of the NHPA confers a private right of action, is one that the First Circuit Court of Appeals has not yet answered.28 Notwithstanding, this Court is ultimately persuaded by the reasoning of courts that have answered this question in the negative.29

In Karst Environmental Education and Protection, Inc. v. EPA, 475 F.3d 1291, 1295 (D.C. Cir. 2007), and San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1099 (9th Cir. 2005), the D.C. Circuit Court of Appeals and the Ninth Circuit Court of Appeals held that Section 106 of the NHPA confers no private right of action. Central to the Ninth Circuit's holding in San Carlos Apache Tribe was its reliance on the United States Supreme Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001), in which the Court held that § 602 of Title VI of the Civil Rights Act of 1964 did not confer a private right of action. Specifically, in Sandoval, the Supreme Court declared that, "[s]tatutes that focus on the person regulated rather than the individuals protected create `no implication of an intent to confer rights on a particular class of persons.'"30 In gleaning no congressional intent to create a private right of action with respect to § 602 of Title VI of the Civil Rights Act, the Court added: "Section 602 is yet a step further removed: It focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agencies that will do the regulating."31 The Ninth Circuit in San Carlos Apache Tribe relied on this very distinction and held that, like § 602 of Title VI of the Civil Rights Act, "[t]he thrust of § 106 is not directed to individuals or entities that may be harmed through violation of NHPA's dictates, but rather, . . . to the persons regulated."32

The Court is satisfied, then, that § 106 of the NHPA does not confer a private right of action.33 Therefore, because the NHPA does not provide a private right of action and thus Plaintiff cannot be entitled to relief, the Court need not address Plaintiff's additional arguments. Plaintiff fails to state a claim upon which relief can be granted such that State Defendants' Motion To Dismiss is hereby GRANTED.

IV. Conclusion

Accordingly, Federal Defendants' Motion To Dismiss (ECF No. 18) and State Defendants' Motion To Dismiss (ECF No. 19) are hereby GRANTED.

IT IS SO ORDERED.