First Circuit sides with R.I. AG

By Jessica M. Karmasek | May 31, 2011


PROVIDENCE, R.I. (Legal Newsline) - Rhode Island Attorney General Peter Kilmartin says he is pleased that a U.S. appeals court has ruled against a developer in a dispute with state officials over a major Native American archaeological site.

Officials at the Rhode Island Coastal Resources Management Council had suspended the development of a subdivision slated for the town of Narragansett since 1992 after the remains of a once-thriving Native American village were uncovered.

Archeologists found remnants of village life including multiple structures, storage pits, human burials, ceramics, stone-ware and tools, all of which suggest a Native American community existed prior to the arrival of European settlers. The dwellings date from the 1300s.

Preservationists and the Narragansett tribe say 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 Attorney General's Office and the CRMC, decided last week that Downing/Salt Pond Partners could not bring a federal claim against the state over the stalled construction.

The court, in its May 23 opinion, limited the claim to state court.

The CRMC is still considering Downing's plans for the site in light of a request from another state agency, the Historic Preservation and Heritage Commission, Kilmartin's office said.

The HPHC has asked the CRMC to enforce restrictions in a permit that the CRMC granted in 1992. HPHC asserts that the restrictions mean the site is to be preserved.

Downing claims that the 1992 CRMC permit allows the company to build 53 additional houses on the land.

The company had already built 26 of the proposed 79 houses on the 67-acre tract when it was ordered to stop construction. In turn, Downing sought payment of $11 million from the state on account of the stoppage.

"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," Kilmartin said in a statement Friday.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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