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US First Circuit Court of Appeals Upholds Lower Court Opinion that Developer May Not Bring Federal Claims Against State over Native American Archeological Site

Attorney General Peter F. Kilmartin announced today that a United States appeals court has ruled against an affiliate of the Downing Corporation, a Providence developer, in a dispute with officials over a major Native American site discovered in Narragansett. Officials at the Rhode Island Coastal Resources Management Council (CRMC) had suspended the development of a subdivision that has been slated for the town of Narragansett since 1992 after the remains of a once-thriving Native American village were uncovered. Preservationists and the Narragansett Indian Tribe say that the land constitutes the most significant Native American archaeological site in the northeastern United States.

The Boston-based First Circuit Court of Appeals, agreeing with arguments presented by the Office of Attorney General and the CRMC, decided on Monday that Downing/Salt Pond Partners could not bring a federal claim against the state over the stalled construction. The court limited the company’s claim to state court. The three-judge panel, which included retired U.S. Supreme Court Justice David Souter (returning to the bench under special assignment), affirmed an earlier ruling against Downing by U.S. District Judge William E. Smith. Downing sought payment of $11 million from the state on account of the stoppage.

The CRMC is still considering Downing’s plans for the site in light of a request from another state agency, the Historic Preservation & Heritage Commission (HPHC). The HPHC has asked the CRMC to enforce restrictions in a permit that the CRMC granted for the development in 1992. HPHC asserts that the restrictions mean that the site is to be preserved. Downing sued both agencies over the delay. The agencies were represented in court by Office of Attorney General together with counsel from the CRMC.

Downing had already built 26 of the proposed 79 houses on the 67-acre tract when it was ordered to stop construction. During construction, archeologists found remnants of village life including multiple structures, storage pits, human burials, ceramics, stone-ware and tools, which all suggest a vibrant Native American community prior to the arrival of European settlers. The dwellings date from the 1300s.

Downing claims that the 1992 CRMC permit allows the company to build 53 additional houses on the land, but HPHC officials dispute this, explaining that the permit was conditioned on preserving any sensitive archeological resources that might be found.

Attorney General Kilmartin stated “We are pleased that the Court honored the long-standing precedent that limits the circumstances under which developers can sue the state. This decision not only preserves the legal precedent, it also preserves centuries-old Rhode Island native history.”

Speaking for the CRMC, Attorney Brain A. Goldman, who assisted the Attorney General’s office added, “We welcome this decision because it vindicates the ongoing CRMC process and we thank the Attorney General’s office for a great joint effort.”

This was echoed by Edward F. Sanderson, the director of the HPHC, “This is a part of our history. This decision is a step in preventing a tremendous loss.”

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