Narragansett Indian Tribal Historic Preservation Office v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted November 8, 2019 Decided February 7, 2020

No. 19-1009

N
ARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION
OFFICE,
P
ETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION,
R
ESPONDENT

TENNESSEE GAS PIPELINE COMPANY, LLC,
INTERVENOR

On Petition for Review of Orders of the
Federal Energy Regulatory Commission

Anne Marie Garti was on the briefs for petitioner.

James P. Danly, General Counsel, Federal Energy
Regulatory Commission, Robert H. Solomon, Solicitor, and
Jared B. Fish, Attorney, were on the brief for respondent.

Brian D. O’Neill, Michael R. Pincus, and Michael
Diamond were on the brief for respondent-intervenor
Tennessee Gas Pipeline Company, LLC.

2

Before: SRINIVASAN, MILLETT, and PILLARD, Circuit
Judges.
1

Opinion for the Court filed by Circuit Judge M
ILLETT.

M
ILLETT, Circuit Judge: The Narragansett Indian Tribal
Historic Preservation Office (“Narragansett Tribe”) petitions
for review of an order of the Federal Energy Regulatory
Commission denying its motion to intervene in a natural gas
pipeline certificate proceeding after the certificate to build a
pipeline had issued. The Narragansett Tribe argues that, in
authorizing Tennessee Gas Pipeline Company, LLC
(“Tennessee Gas”) to build a pipeline across landscapes that
hold sacred significance to the Tribe, the Commission denied
it the procedural protections of the National Historic
Preservation Act (“Preservation Act”), 54 U.S.C. §§ 300101 et
seq.
While the Narragansett Tribe awaited the Commission’s
action on its pending motion to intervene and its separate
motion for reconsideration of an order allowing construction to
commence, Tennessee Gas completed its pipeline. In the
process, Tennessee Gas irreparably destroyed more than
twenty ceremonial stone features. With its effort to save those
ceremonial landscapes lost, the Narragansett Tribe petitioned
this court for review, seeking only an order compelling the
Commission to amend its regulations so that it cannot repeat
the alleged violations of the Preservation Act in the future.
The problem for the Narragansett Tribe is that it lacks
standing to seek such relief. By the time the Narragansett Tribe
filed its petition for review, the ceremonial landscapes had been

1
This petition for review was considered on the record from the
Federal Energy Regulatory Commission and on the briefs of the
parties. See F
ED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j).

3

irremediably destroyed. And the Narragansett Tribe has not
shown a substantial risk that a similar disagreement between it
and the Commission will recur. We therefore must dismiss the
petition for lack of jurisdiction.
I
Section 106 of the Preservation Act, 54 U.S.C. § 306108,
“requires federal agencies to consider the effect of their actions
on certain historic or culturally significant sites and properties
(expressly including those of Indian tribes) and to seek ways to
mitigate those effects.” City of Tacoma v. FERC, 460 F.3d 53,
69 (D.C. Cir. 2006). In carrying out those responsibilities,
federal agencies must “consult with any Indian tribe * * * that
attaches religious and cultural significance to” potentially
affected properties. 54 U.S.C. § 302706(b). Agencies “must
complete the [S]ection 106 process ‘prior to the approval of the
expenditure of any Federal funds on [a project] or prior to the
issuance of any license.’” 36 C.F.R. § 800.1(c) (quoting 54
U.S.C. § 306108).
In March 2016, the Commission issued a certificate under
Section 7 of the Natural Gas Act, 15 U.S.C. § 717f, authorizing
Tennessee Gas to build and operate its Connecticut Expansion
Project. The Project comprises approximately 13 miles of
pipeline loops—that is, pipeline segments built alongside
existing pipelines to increase their capacity. At issue here is a
3.81-mile-long pipeline segment near Sandisfield,
Massachusetts.
This case arises from the Narragansett Tribe’s attempt to
save from destruction 73 ceremonial stone landscapes of
cultural and religious importance that were in the pipeline’s
approved path. Tennessee Gas proposed to mitigate the harm
by removing the features during construction and replacing
them later. But the Narragansett Tribe explained why, as a

4

religious matter, that approach was equivalent to destroying the
features outright:
In our ancestral tradition, these ceremonial stone
groupings are “prayers” to our Creator and Earth
Mother calling for balance and harmony and should
be left to their spiritual work. If they are moved, their
ceremonial/spirit work is then broken[;] it cannot
likely be re-connected as we are not privy to the
original trauma that called forth these specific ancient
ceremonial responses. If dismantled and rebuilt (as
[Tennessee Gas] has offered), what then would be
created is an artistic replica of an active ceremonial
stone grouping that was put in place by long ago
ancestors for a purpose that we, today, may be
incapable of identifying or re-connecting with its
original (and still active) specific spiritual task.
J.A. 339.
On April 6, 2017, Tennessee Gas filed with the
Commission a request to proceed with construction. Four days
later, the Narragansett Tribe moved to intervene. The
Narragansett Tribe argued that the Commission had failed to
satisfy its consultation responsibilities under the Preservation
Act and that authorizing construction in the Sandisfield portion
would irreparably harm the Narragansett Tribe.
The Commission granted Tennessee Gas’s request and
authorized construction to start on April 12, 2017, including in
the area containing the sacred landscapes. On April 24, 2017,
the Massachusetts PipeLine Awareness Network (“Mass
PLAN”), an existing party to the proceedings, requested
rehearing of that order and moved for a stay of construction,
raising many of the same objections to the pipeline project as

5

the Narragansett Tribe. The Narragansett Tribe filed its own
request for rehearing of the construction order two weeks later.
While the Narragansett Tribe and Mass PLAN awaited
Commission action on their still-pending motions, including
Mass PLAN’s request for a stay of construction, Tennessee Gas
completed construction of the entire pipeline, destroying more
than twenty ceremonial stone landscapes in the process.
Construction was completed no later than October 31, 2017,
when the Commission authorized Tennessee Gas to begin
service on the pipeline. Not until two and a half months later
did the Commission deny the Narragansett Tribe’s motion to
intervene, reject its rehearing request, and deny Mass PLAN’s
rehearing request. The Commission then dismissed the motion
to stay construction as moot.
On February 2, 2018, the Narragansett Tribe timely
requested rehearing of the denial of its motion to intervene.
Almost ten months after that, the Commission denied
rehearing. On January 15, 2019, the Narragansett Tribe timely
filed a petition for review of the Commission’s April 2017,
January 2018, and November 2018 orders.
II
To establish Article III standing, a petitioner “must have
(1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016). The Narragansett Tribe
cannot satisfy those requirements because the relief it seeks
cannot redress the injury it suffered.
Although the destruction of the ceremonial landscapes
certainly qualifies as an injury in fact, it is no longer
redressable. Because the Commission allowed Tennessee Gas

6

to complete construction of the pipeline while motions for
relief remained pending, the damage to the ceremonial
landscapes has been done.
2

That problem “may sound like one of mootness—a
justiciable controversy existed but no longer remains—but the
timing makes [it] one of standing.” Advanced Mgmt. Tech.,
Inc. v. Federal Aviation Admin., 211 F.3d 633, 636 (D.C. Cir.
2000). “Standing is assessed ‘at the time the action
commences,’” which in the case of a petition for review is “the
time [the petitioner] sought relief from an Article III court[.]”
Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 191 (2000)). By the time the
Narragansett Tribe first filed its petition in this court, the
construction was complete and the damage done.
So the Tribe’s claim became moot while the matter was
still pending before the Commission and, as a result, the
Narragansett Tribe lost standing to seek review in this court,
unless it could identify an ongoing or future injury. See City of
Los Angeles v. Lyons, 461 U.S. 95, 107–110 (1983); Morgan
Drexen, Inc. v. CFPB, 785 F.3d 684, 689 (D.C. Cir. 2015) (To
establish a future injury, “a plaintiff must show that there is a
‘substantial risk’ that the harm will occur.”); see also Utility
Workers Union of America Local 464 v. FERC, 896 F.3d 573,
577 (D.C. Cir. 2018) (“[A petitioner] must support each

2
The Narragansett Tribe does not challenge the timing of the
Commission’s decision. See generally Allegheny Defense Project v.
FERC, 943 F.3d 496, 497 (D.C. Cir. 2019) (per curiam) (ordering
rehearing en banc on the question whether “the Natural Gas Act, and
specifically 15 U.S.C. § 717r(a), authorizes [the Commission] to
issue tolling orders that extend the statutory 30-day period for
Commission action on an application for rehearing”).

7

element of its claim to standing by affidavit or other
evidence[.]”) (internal quotation marks omitted).
The Narragansett Tribe has not done so. It does not assert
a continuing or future injury from the pipeline’s operation itself
and, in fact, it specifically eschews asking this court to “vacate
the order for a pipeline that is in operation[.]” Narragansett
Tribe’s Br. 57. Instead, the Narragansett Tribe requests “that
the remedy focus on the Commission’s systemic violations[,]”
seeking only an order from this court requiring the Commission
to amend its regulations governing consultations with federally
recognized Indian tribes. Narragansett Tribe’s Br. 57–58. But
revised regulations do nothing to repair the already completed
harm to the Narragansett Tribe’s cultural and religious
interests. And the Narragansett Tribe has no standing to seek
purely prospective relief in the form of amended regulations.
Standing to seek such forward-looking injunctive relief
requires the Narragansett Tribe to “show [that it] is suffering
an ongoing injury or faces an immediate threat of injury.”
Morgan Drexen, 785 F.3d at 689 (internal quotation marks
omitted). For a future injury, that means submitting evidence
“show[ing] that there is a ‘substantial risk’ that the harm will”
recur. Id. (quoting Clapper v. Amnesty Int’l USA, 568 U.S.
398, 414 n.5 (2013)). The Tribe, though, has not shown any
prospect of the conflict between it and the Commission arising
again, much less a “real and immediate threat of again being”
subject to the same conduct, Lyons, 461 U.S. at 110; see also
id. at 107–110.
Trying a different tack, the Tribe argues that procedural
rights claims are subject to a less demanding redressability
requirement. That is true. But a wholly speculative prospect
of redress still does not pass muster.

8

What the cases recognizing a more relaxed redressability
requirement for procedural rights claims mean is that, instead
of needing to establish that compelling the agency to follow the
correct procedure would lead to a substantive result that favors
the petitioner’s concrete interests, the petitioner need only
show that its concrete interests could be better protected.
The person who has been accorded a procedural right
to protect his concrete interests can assert that right
without meeting all the normal standards for
redressability and immediacy. Thus, under our case
law, one living adjacent to the site for proposed
construction of a federally licensed dam has standing
to challenge the licensing agency’s failure to prepare
an environmental impact statement, even though he
cannot establish with any certainty that the statement
will cause the license to be withheld or altered, and
even though the dam will not be completed for many
years.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)
(emphasis added); see also Mendoza v. Perez, 754 F.3d 1002,
1010 (D.C. Cir. 2014) (The relaxed redressability requirement
means that the petitioner need not show that “correcting the
procedural violation would necessarily alter the final effect of
the agency’s action on the [petitioner’s] interest[.]”).
In other words, the relaxed redressability requirement is
met when correcting the alleged procedural violation could still
change the substantive outcome in the petitioner’s favor; the
petitioner need not go further and show that it would effect such
a change. See, e.g., American Rivers v. FERC, 895 F.3d 32,
41–42 (D.C. Cir. 2018) (holding that petitioners satisfied the
relaxed redressability requirement because vacating the
challenged licensing order and requiring the Commission to

9

follow the correct procedure “could [lead it to] change its
mind”) (internal quotation marks omitted); Center for
Biological Diversity v. EPA, 861 F.3d 174, 185 (D.C. Cir.
2017) (holding that the relaxed redressability requirement was
satisfied because the agency “could reach a different
conclusion” if the court vacated its order); Sierra Club v.
FERC, 827 F.3d 36, 44 (D.C. Cir. 2016) (same).
The problem here is that, unlike in those cases, fixing the
alleged defect in the Commission’s regulatory procedures
could not possibly prevent or mitigate the harm to the
Narragansett Tribe’s cultural and religious interests. See
Humane Soc’y of the United States v. Babbitt, 46 F.3d 93, 100–
101 (D.C. Cir. 1995) (holding that a procedural injury was not
redressable because there was “no possibility” that the already
completed action could be undone). Nor has the Narragansett
Tribe identified a substantial risk of injury to be redressed.
The Narragansett Tribe’s three remaining arguments fare
no better. First, it argues that its injury is redressable because
“remand may be required for some of the procedural errors in
this case[.]” Narragansett Tribe’s Reply Br. 8 (formatting
modified). But aside from its request that the Commission
revise its regulations, the Narragansett Tribe does not explain
how any correction of procedural course would help it or what
it could obtain out of a remand.
Second, the Tribe contends that we could “alleviate the
cause of [its] harms by granting party status.” Narragansett
Tribe’s Reply Br. 8. It wants that status “so its Petition can be
reviewed on the merits.” Narragansett Tribe’s Br. 57.
Although a successful challenge to the Commission’s denial of
intervention could lead to party status, there is no case on the
merits left in which the Narragansett Tribe could intervene. Its
merits challenges revolved around preserving the ceremonial

10

landscapes—claims that are now moot. Given that, granting
party status would not offer any redress for the Narragansett
Tribe’s identified injury.
Third, the Narragansett Tribe requests attorneys’ fees and
costs. See 54 U.S.C. § 307105 (authorizing an award of fees
and costs to a party that “substantially prevails” in an action
brought in any federal district court to enforce the Preservation
Act). That changes nothing because the prospect of recovering
fees or costs does not “create an Article III case or controversy
where none exists on the merits of the underlying claim[.]”
Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990);
see also District of Columbia v. Jeppsen ex rel. Jeppsen, 514
F.3d 1287, 1289 (D.C. Cir. 2008) (“Article III requires that the
requested remedy redress the injury in fact of which a plaintiff
complains; when intervening events have mooted the
plaintiff’s underlying claim, the plaintiff’s continuing interest
in attorneys’ fees does not support her continued standing to
pursue the underlying claim.”) (formatting modified).
III
In sum, the Narragansett Tribe lacks standing because the
cultural and religious injury it suffered can no longer be
redressed by any of the relief it seeks from this court. Changing
the Commission’s Section 106 consultation process going
forward would do nothing to redress the already-completed
loss of the ceremonial stone landscapes. And the Narragansett
Tribe has demonstrated no other basis for its standing to obtain
prospective injunctive relief. For those reasons, the petition for
review must be dismissed.
So ordered.