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UNITED STATES OF AMERICA

BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION

IN THE MATTER OF )
)
CONNECTICUT EXPANSION PROJECT ) Docket No. CP14-529-000

MOTION TO INTERVENE OUT OF TIME


BY THE NARRAGANSETT INDIAN
TRIBAL HISTORIC PRESERVATION OFFICE

Pursuant to Rules 212 and 214 of the Federal Energy Regulatory Commission (FERC)
Rules of Practice and Procedure, 18 C.F.R. 385.212 and 385.214, the Narragansett Indian
Tribal Historic Preservation Office (NITHPO) hereby submits this late motion to intervene in
the above-captioned proceeding.
On July 31, 2014, the Tennessee Gas Pipeline Company, LLC (TGP) filed an
application under Section 7 of the Natural Gas Act, 15 U.S.C. 717f, and Section 157 of
FERCs regulations, 18 C.F.R. 157.1 et seq., for the proposed Connecticut Expansion Project
(Project), FERC Docket No. CP14-529-000. Three months later, the Federal Energy
Regulatory Commission (FERC) filed a document in the docket for this Project noting the
need to study Ceremonial Stone Landscapes (CSL and CSLs). (Submittal 20141105-4009.)
In spite of concluding its memo with the statement that it would be appropriate to survey the
Tennessee Gas Pipeline Connecticut Expansion Project (CP14-529) for ceremonial stone
landscapes[], FERC issued a Certificate of Public Convenience and Necessity for this project
almost seven months before the report regarding CSLs was filed. (Submittals 20160311-3032
and 20161003-4003.) Now TGP is requesting both a Partial Notice to Proceed (NTP) for tree
clearing and a NTP for construction. (Submittals 20170406-5666 and 20170406-5696.) If FERC
authorizes this activity, it will irreparably harm the Narragansett Indian Tribe, as the CSLs are an
integral part of their cultural heritage and religious beliefs. As explained more fully below,
NITHPO should be granted the right to intervene at this time because: (1) NITHPO acted in good
faith; (2) FERC breached its duty to the Narragansett Indian Tribe, causing an extensive delay in
the study of the CSLs; (3) any prejudice to TGP is the direct result of FERCs breach of duty to
NITHPO; (4) NITHPO would suffer irreparable harm if it is denied party status; (5) there is no
other party who can represent the interests of the NITHPO; and (6) preserving our Nations
heritage and NITHPOs culture and religion are in the public interest. 18 C.F.R. 385.214(d)(1).

I. COMMUNICATIONS AND CORRESPONDENCE

The following person should be included on the service list for this docket,
and all communications should be addressed to her as follows:

Anne Marie Garti, Esq.


PO Box 15
Bronx, New York 10471
annemarie@garti.net
(718) 601-9618

II. IDENTITY AND INTEREST OF NITHPO

The Narragansett Indians are the descendants of the aboriginal people of what is now the
State of Rhode Island, as well as areas beyond the States borders, some of which are now
submerged.1 Archaeological evidence and the oral history of the Narragansett People establish
their existence in this region more than 30,000 years ago.2 The Narragansett Indian Tribe is a
federally recognized Indian tribe pursuant to 25 C.F.R. 83.9(h) and 83.11. 48 Fed. Reg. 6177-

1
Collaborative studies of the Tribes submerged lands have been undertaken by NITHPO with
underwater archeologists at the University of Rhode Island and other agencies. See for example, Johanna
Knapschaeffer, Villages Beneath the Sea (Dec. 2, 2015), available at
http://web.uri.edu/quadangles/villages-beneath-the-sea; and Doug Harris, John King, and David
Robinson, Submerged Paleocultural Landscapes Project (Dec. 10, 2014), available at
http://conference.ifas.ufl.edu/aces14/presentations/Dec%2010%20Wednesday/2%20Special%20Concurre
nt%20Session/Robinson%20David.pdf.
2
NITHPO Art, About Us, available at http://www.nithpoart.com/home/about-us.

2
78 (Feb. 10, 1983). Its Settlement Lands, which are located within Charlestown, Rhode Island,
are held in trust by the United States.
NITHPO was established to preserve and protect important Tribal cultural and religious
customs, traditions and history. NITHPO has protected Indian burial sites, acquired land for the
tribe, and worked to preserve the cultural identity of the Narragansett people. NITHPO has also
helped academic organizations and the federal government understand the impacts of climate
change on indigenous cultures, as villages of the Narragansett Indians were submerged as the sea
level rose during the melting of the glaciers. Accounts of these historic events were passed down
from generation through generation, and evidence of the truth of these oral transmissions was
recently gathered using modern scientific techniques. (See note 1.) While engaged in the study of
the submergence of their villages in the distant past, the Narragansett people became aware that
they face a modern event that is threatening their religious beliefs and cultural history on the
mainland.
The Massachusetts loop of the Project is located in territory historically associated with
the Narragansett Indian Tribe.3 During the last quarter of the seventeenth century, Narragansett
warriors went to Stockbridge, Massachusetts, and some members of the Narragansett settled in
Great Barrington or Sheffield, lead by the powwow Umpachene.4 There is also documented
evidence of Umpachene and CSLs in this area of Massachusetts in the first half of the eighteenth
century.5
On December 9, 2015, FERC formally invited Tribal Historic Preservation Officer John
Brown to consult on this Project. (Submittal 20151209-3018.) At the same time, Deputy Tribal
Historic Preservation Officer Doug Harris participated in a meeting and a walk through of the
Connecticut and Massachusetts loops of the proposed Project, which was documented in a memo
filed by FERC. (Submittal 20151228-4005.) The participants of this meeting agreed that a survey
of CSLs was needed for the entire loop in Massachusetts, but no schedule or plan was developed
to ensure its timely completion. Id. FERC ignored the need to protect CSLs by issuing a
Certificate of Public Convenience and Necessity for the Project before the required surveying

3
James W. Mavor, Jr. and Byron E. Dix, Manitou: The Sacred Landscape of New England's Native
Civilization, Inner Traditions International, Ltd., pp 166-7, 175-6 (1989).
4
Id. at 166-7.
5
Id. at 175-6.

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began, and by failing to mention the tribes and the need to protect their religious and cultural
heritage in its order. (Submittal 20160311-3032.) Once a survey schedule was established,
NITHPO spent weeks in the field during the summer of 2016 helping to identify the CSLs. The
report documenting and analyzing the identified CSLs was filed almost seven months after
FERC issued its order approving the Project.6 (Submittal 20161003-4003.) Seventy-three CSLs
were identified along the Massachusetts loop of the Project in this report. (Submittal 20170103-
4006.) Unfortunately, TGP, with the written blessing of FERC and the Advisory Counsel of
Historic Preservation (ACHP), now plans to deconstruct and reconstruct one-third of the CSLs
in what can only be described as an act of sacrilege for those who believe in their deeper
significance. Id. NITHPO strenuously objected to this proposed desecration in its January 3,
2017 letter to FERC and the ACHP, pointing out that NITHPO was never invited to participate
in the resolution of adverse effects. 36 C.F.R. 800.2(c)(2)(ii), 800.2(c)(2)(ii)(A),
800.2(c)(2)(ii)(D).
Deputy THPO Doug Harris is correct. According to the regulations implementing the
National Historic Preservation Act (NHPA), the resolution of adverse effects requires the
active participation and agreement of the THPO, which includes the NITHPO in this instance.
See 36 C.F.R. 800.6(b)(2) ([T]he agency official shall consult with the SHPO/THPO, the
Council, and other consulting parties, including Indian tribes . . . to seek ways to avoid, minimize
or mitigate the adverse effects. If the agency official, the SHPO/THPO, and the Council agree on
how the adverse effects will be resolved, they shall execute a memorandum of agreement.)
(emphasis added). Thus NITHPO is required to consult on the mitigation plan and is also
required to sign the Memorandum of Agreement (MOA). 36 C.F.R. 800.6(c)(1)(ii) (The
agency official, the SHPO/THPO, and the Council are the signatories to a memorandum of
agreement executed pursuant to paragraph (b)(2) of this section.). Since NITHPO was never
consulted to seek ways to avoid, minimize or mitigate the adverse effects on the CSLs and
never signed the MOA, this Project is not in compliance with Section 106 of the National
Historic Preservation Act (NHPA). 54 U.S.C. 306108.

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Mashantucket (Western) Pequot, Mohegan, Wampanoag of Gay Head (Aquinnah), and Narragansett
Indian Tribal Historic Preservation Offices, and Ceremonial Landscapes Research, LLC, Technical
Report: Sandisfield Ceremonial Stone Landscape Survey (Sept. 30, 2016). This report was filed as a
privileged document so its content will not be discussed in this motion. However, it is hereby
incorporated by reference.

4
As a direct result of FERCs derogation of its duty, NITHPOs consultation took place
too late in the process for it to be meaningful under the current plan of action. FERC, ACHP, and
TGP are currently attempting to thwart NITHPOs right to consult in the resolution of adverse
effects, saying it is too late to make changes to the route or otherwise protect the CSLs that
would be disassembled. (Submittal 20170130-5034.) They also executed a MOA without the
explicit agreement of NITHPO, and never asked the THPO be a signatory. (Submittal 20161003-
4003.) Under these extraordinary circumstances, NITHPO has no choice but to file a late motion
to intervene, as no other party in these proceedings can protect its interests. The threatened CSLs
are connected to the Narragansett people and to the Nation as a whole. As such, NITHPO has
both (1) an interest which may be directly affected by the outcome of the proceeding pursuant
to Rule 214(b)(2)(ii); and (2) its participation is in the public interest pursuant to Rule
214(b)(2)(iii).

III. NITHPO HAS GOOD CAUSE FOR FILING A LATE MOTION TO INTERVENE
AS FERC BREACHED ITS DUTY BY DELAYING THE STUDY OF THE
CEREMONIAL STONE LANDSCAPES
AND BY MISLEADING TRIBES ABOUT THEIR RIGHT TO INTERVENE

Approximately three months after TGP applied for a certificate of public convenience
and necessity, FERC filed a document in the docket for this Project noting the need to study
CSLs along the proposed route. (Submittal 20141105-4009.) This memorandum, which was
prepared by FERC, documented a Section 106 consultation held on October 17, 2014 for the
Algonquin Incremental Market Project (AIM), Docket Nos. PF13-16-000 and CP14-96-000.
Id. FERC concluded it with the statement that it would be appropriate to survey the Tennessee
Gas Pipeline Connecticut Expansion Project (CP14-529) for ceremonial stone landscapes[] and
filed this memo in Docket No. CP14-529. Id. Yet FERC failed to follow-up in a timely manner,
and allowed two years to pass before a report on CSLs was prepared and filed for this Project.
By the time it was completed, the Project proponents claimed it was too late to make significant
changes, as FERC had already approved the route and established mitigation plans in its order
granting a certificate of public convenience and necessity for the Project. (Submittal 20160311-
3032.) FERCs unconscionable delay between when it became aware of the need for CSL
surveys and when they were undertaken is a serious breach of its fiduciary duty to NITHPO.

5
Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831) (Their relation to the United States resembles
that of a ward to his guardian.).
By comparing what happened here with what transpired with AIM, it becomes
abundantly clear that FERC dropped the ball with this Project. In its October 17, 2014
memorandum, FERC established a plan and an aggressive schedule for AIM, specifying who
would do what, and when key tasks would be performed. (Submittal 20141105-4009.) (To be
timely, the proposal/scope of work would be filed by November 5, 2014. FERC staff will review
the proposal/scope of work to determine if any modifications to the APE would be necessary.)
However, when FERC finally met with NITHPO in regards to this Project almost fourteen
months after identifying the need to study CSLs no plans or schedules were established.
(Submittal 20151228-4005.) It is as if FERC wanted to delay the preparation of a report about
CSLs until it was too late to move the route or otherwise protect the ceremonial stone
landscapes.
NITHPO should not have to suffer any loss under these extraordinary circumstances, as it
is FERCs responsibility to ensure that Tribal resources are protected. Covelo Indian Community
v. FERC, 895 F.2d 581, 586 (9th Cir. 1990) (The trustee must always act in the interests of the
beneficiaries. . . .). This duty is a federal trust, which cannot be delegated to TGP, and which is
recognized by FERC in its policy statement on tribal consultations. 18 C.F.R. 2.1c(b) (The
Commission acknowledges that, as an independent agency of the federal government, it has a
trust responsibility to Indian tribes and this historic relationship requires it to adhere to certain
fiduciary standards in its dealings with Indian tribes.).
NITHPO acted in good faith throughout the entire process, expecting its status as a
consulting party to protect its interests. It also believed that its role as a consulting party
precluded it from intervening, as it was engaged in ex parte communications with FERC. 18
C.F.R. 385.2201. However, NITHPO may have been confusing its consulting role with that of
a cooperating agency, under NEPA. 40 CFR 1501.6. FERC has a long-standing policy of not
allowing cooperating agencies to intervene. 106 FERC 61,037, at P 29 (2004). FERCs
regulations are ambiguous as to whether consulting tribes can intervene. There is an exemption
in the ex parte rules for non-party tribes, which implies consulting tribes cannot intervene. 18
C.F.R. 385.2201(e)(v). On the other hand, FERCs policy regarding tribal consultations implies
the opposite. 18 C.F.R. 2.1c(d) (FERCs policy states that various procedures place some

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limitations on the nature and type of consultation that the Commission may engage in with any
party in a contested case. Nevertheless, the Commission will endeavor, to the extent authorized
by law, to reduce procedural impediments to working directly and effectively with tribal
governments.). FERC also appears to be misleading tribes in the form letters it sends them
requesting consultation, as the agency explicitly states that tribes may comment on the project,
but never mentions their right to intervene. (See, for example, FERCs November 25, 2013 letter
to the Narragansett Tribe regarding AIM, Docket No. PF13-96, Submittal 20131125-3021. We
are interested in receiving your comments on the project to ensure that the concerns of the
Narragansett Indian Tribe are identified and properly considered in our environmental analysis.)
If TGP responds to this motion, it is likely to claim that NITHPOs late intervention
would be prejudicial. However, any prejudice to TGP is the result of FERCs unconscionable
delay, not NITHPOs late intervention. It is NITHPO who has been prejudiced by this process, as
its right to a meaningful consultation has been pulled out from under it from the extensive delay
that was caused by FERCs breach of its fiduciary duty. The ACHP acknowledged as much
when it stated in its letter to FERC that CSL surveys should be done much earlier in the process.
(Submittal 20170130-5034.) (It is our recommendation that FERC engage more proactively to
carry out tribal consultation and to facilitate coordination among tribes and proponent in order to
promptly move the Section 106 review forward.)
Another indication that TGP would not be prejudiced by NITHPOs intervention is the
fact that the Army Corps of Engineers (ACE) made sure there would be no harm to the CSLs
in its area of jurisdiction. On November 22, 2016 the ACE notified FERC that KM/TGPC
submitted avoidance and protection measures for all 20 of the TCPs within the Corps permit
area. (Submittal 20161129-0064.) NITHPOs intervention would seek similar avoidance and
protection measures for the CSLs under FERCs jurisdiction. If one federal agency can pressure
TGP to ensure complete protection of these precious tribal resources, why cant the other? There
is no reason why TGP cant drill under the areas where the CSLs are located. In fact, according
to FERCs Guidelines for Reporting on Cultural Resources, drilling beneath cultural resources is
a recommended way of avoiding them.7 It is not NITHPOs fault if this protective measure was

7
FERC, Guidelines for Reporting on Cultural Resources Investigations for Natural Gas Projects, 15, 17-
19 (Dec. 2002), available at https://www.ferc.gov/industries/gas/enviro/culresor.pdf.

7
not considered at an earlier point in the regulatory process, so it should not be punished for
FERCs failure to schedule a prompt study of the CSLs.
NITHPO understands that being granted party status at this point would not enable it to
challenge FERCs October 23, 2015 Environmental Assessment or FERCs March 11, 2016
Certificate of Public Convenience and Necessity. NITHPOs sole interest is to ensure a fair
process for the identification and protection of the CSLs. All of this activity happened well after
FERC issued its order on March 11, 2016. The survey report on the CSLs was completed in
September 2016 and filed on October 3, 2016. (Submittal 20161003-4003.) According to TGPs
March 8, 2017 bi-weekly status report, the MOA was signed by FERC and TGP on February 17,
2017, and by the ACHP on February 24, 2017. (Submittal 20161003-4003.) However, it has not
yet been filed in the docket. In addition, the MOA has not been signed by NITHPO, as required
under 36 C.F.R. 800.6(b)(2) and 800.6(c)(1)(ii). Finally, FERC has not yet issued a notice to
proceed for this Project.

IV. GRANTING NITHPO PARTY STATUS IS IN THE PUBLIC INTEREST

NITHPO represents a sovereign nation in these proceedings, a status specifically


recognized by FERC. Worcester v. Georgia, 31 U.S. 515, 593-95 (1832); 18 C.F.R. 2.1c(a). In
this vital role, NITHPO has a duty to preserve and protect the religious and cultural resources
under its jurisdiction. (See Chapter 3027 of the NHPA, Historic Preservation Programs and
Authorities for Indian Tribes and Native Hawaiian Organizations, 54 U.S.C. 302701
302706.) The Narragansett Indian people treat their heritage with respect, and have a long record
of trying to keep it alive, in spite of the many obstacles placed in front of them. Therefore, like
the Resource Agency in Swanson, it must be granted the right to intervene late in these
proceedings. Swanson Min. Corp. v. FERC, 790 F.2d 96, 105 (D.C. Cir. 1986) (FERC properly
found that late intervention was necessary to protect the public interest and granted late
intervention to enable the Resources Agency of California to exercise its statutorily recognized
duty to protect fish, wildlife and other environmental concerns.)

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V. CONCLUSION

For the foregoing reasons, the Narragansett Indian Tribal Historic Preservation Office
respectfully requests that intervention in the above-captioned proceeding be granted.

Respectfully submitted,

s / Anne Marie Garti


Anne Marie Garti, Esq.
PO Box 15
Bronx, NY 10471
Telephone: (718) 601-9618

Attorney for NITHPO


Movant for Intervention

Dated: April 9, 2017

9
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION

)
Tennessee Gas Pipeline Company, L.L.C. ) Docket No. CP14-529-000
)

ANSWER OF TENNESSEE GAS PIPELINE COMPANY, L.L.C.


TO MOTION TO INTERVENE OUT-OF-TIME OF THE
NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION OFFICE

Pursuant to Rule 213 of the Federal Energy Regulatory Commissions (FERC

or Commission) Rules of Practice and Procedure,1 Tennessee Gas Pipeline Company,

L.L.C. (Tennessee) respectfully submits this Answer in Opposition to the Motion to

Intervene Out-of-Time of the Narragansett Indian Tribal Historic Preservation Office

(NITHPO), filed on April 10, 2017 in the above-captioned docket.2

Tennessee filed its Application in this docket requesting authorization for its

Connecticut Expansion Project (Project) nearly three years ago on July 31, 2014, and

the Commission issued a Certificate Order authorizing the Project over one year ago on

March 11, 2016.3 The deadline for intervening in this proceeding was September 4,

2014.4 Since December 8, 2015, Tennessee has consistently and repeatedly reached out

by letter, email, and telephone to NITHPO to advise on progress of the Project, to

facilitate consultation between NITHPO, other interested tribes, and FERC, and to work

with and facilitate the tribes survey and review of the Projects right of way. In fact, the

1
18 C.F.R. 385.212 & 385.213 (2016).
2
Motion to Intervene Out of Time by the Narragansett Indian Tribal Historic Preservation Office, Docket
No. CP14-529-00 (Apr. 10, 2017) (NITHPO Late Motion).
3
Tennessee Gas Pipeline Co., L.L.C. 154 FERC 61,191 (2016) (Certificate Order).
4
Notice of Application, Docket No. CP14-529-000 (Aug. 14, 2014).
survey conducted by four tribes,5 including NITHPO, culminated in the preparation of

Technical Report: Sandisfield Ceremonial Stone Landscape Survey that was submitted to

FERC on October 3, 2016.6 NITHPO was an active participant in the Commissions

National Historic Preservation Act (NHPA) Section 1067 consultation processwhich

was deemed complete with the execution of a Memorandum of Agreement (MOA)

between the Commission and the Advisory Council on Historic Preservation

(ACHP)without being a party to the proceeding. FERC should reject NITHPOs

request for intervention at this late stage, long after FERC has issued its Certificate Order

for the Project and the deadline for intervention has passed.

ANSWER

I. The Commission Should Deny NITHPOs Late Request for Intervention.

NITHPOs Motion to Intervene Out-of-Time at this late stage of the proceeding is

contrary to Commission precedent and policy. The Commissions practice is to deny

motions to intervene that are submitted after a certificate is issued,8 and it should do the

same with respect to NITHPOs late motion to intervene in proceeding.

5
The four tribes that participated in the survey and report were the Narragansett Indian Tribe, the
Wampanoag Tribe of Gay Head (Aquinnah), the Mashantucket Pequot Tribal Nation, and the Mohegan
Tribe.
6
Technical Report: Sandisfield Ceremonial Stone Landscape Survey for the Connecticut Expansion
Project, Docket No. CP14-529-000 (Oct. 3, 2016).
7
54 U.S.C. 306108 (2012).
8
See Algonquin Gas Transmission, LLC, 154 FERC 61,048, PP 9-12 (2016) (movants failed to
demonstrate good cause); Constitution Pipeline Co., 154 FERC 61,046, PP 4-7 (2016) (movant had notice
of the proceeding and even filed timely comments on draft environmental impact statement); Texas Eastern
Transmission, 141 FERC 61,043, PP 4-10 (2012) (landowner moved to intervene only after it failed to
receive concessions from pipeline company through negotiations); Transcon. Gas Pipe Line Corp., 126
FERC 61,097, P 6-13 (2009) (rejecting landowners claims that they were unaware of consequences of
failing to intervene on time, when they had received standard notices of application informing them of
intervention requirements); Columbia Gas Transmission Corp., 113 FERC 61,066 (2005) (movants failed
to demonstrate good cause); Entrega Gas Pipeline Inc., 113 FERC 61,327, PP 10-12 (2005) (late movant
failed to meet higher burden of showing good cause for post-certificate intervention).

2
To determine whether good cause exists to grant a motion to intervene out-of-

time, the Commission applies the criteria set forth in Rule 214(d)9 and considers, among

other things: (1) whether the movants interest is adequately represented by other parties

to the proceeding; (2) whether the movant had good cause for failing to file a timely

motion to intervene; (3) whether any disruption of the proceeding might result from

permitting the late intervention; and (4) whether late intervention would be prejudicial to

any of the existing parties. As the Commission has explained, a movant seeking to

intervene after issuance of an order on the merits of a certificate application bears a

higher burden to show good cause, and the Commissions general practice is to deny late

intervention at the rehearing stage.10

NITHPO lacks good cause for its late intervention. NITHPO states that it has

good cause to intervene late because it was confused about FERCs procedural

requirements.11 Failure to understand the Commissions procedural requirements is not

grounds to intervene two years lateafter the issuance of the Certificate Orderand the

Commission has denied similar motions to intervene that cited similar grounds.12 For

instance, in Transcontinental Gas Pipe Line, the Commission rejected landowners

arguments that they should be granted intervention after issuance of a certificate on

grounds that they were unaware of the implications of their failure to intervene.13 The

Commission found that the landowners had received informational packets from the

pipeline explaining their rights to them, and that they had commented on the proceeding

as well, and as such, they had no excuse for filing their motions so late.

9
18 C.F.R. 385.214(d) (2016).
10
Texas Eastern Transmission, 141 FERC 61,043, P 7 (2012).
11
NITHPO Late Motion at 6-7.
12
Transcontinental Gas Pipe Line, 126 FERC 61,097, P 11 (2009).
13
Id.

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NITHPO states that it was officially invited to consult on development of the

Project by the Commission on December 9, 2015,14 and thus, would have been aware of

the Project at that time, and could have intervened. In fact, the NITHPO was aware of

the Project much earlier than that when Tennessee sent project notification letters to

federally recognized Indian tribes, including the Narragansett Indian Tribe, on September

4, 2014. The record shows that NITHPO was aware of the Project at that time since

United South and Eastern Tribes, Inc. (USET) filed, on September 4, 2014, a comment

in the Project docket urging the Commission to engage in formal consultation with the

Narragansett Indian Tribe, among others.15 NITHPO was, therefore, aware of the Project

early on in the process, received timely notification of the proceeding, and could have

intervened on time.

Permitting intervention at this late stage would prejudice Tennessee. While the

Commission applies a liberal intervention policy early in a proceeding, it recognizes

that the prejudicial effect of adding new parties late in a proceeding16 Due to the very

late stage in this proceeding after the issuance of the Certificate Order, the Commission

should, consistent with its policy of denying requests to intervene at the rehearing stage

of the proceeding, deny NITHPOs late intervention.

NITHPO articulates no prejudice it would endure if its later intervention is denied

at this stage in the proceeding. As NITHPO itself acknowledges, even if NITHPO is

granted party status, it still would have no right to challenge the Environmental

Assessment issued in this proceeding, seek rehearing of the Certificate Order, or file for

14
NITHPO Late Motion at 3.
15
Comments of United South and Eastern Tribes, Inc., Docket No. CP14-529-000 (Sept. 4, 2014).
16
Columbia Gas Transmission Co., 113 FERC 61,066, at P 5 (2005).

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an appeal.17 Under Section 19(a) of the Natural Gas Act (NGA),18 a request for

rehearing must be filed within 30 days of the date of issuance of the Commission order.

This is a statutory limitation that cannot be waived by the Commission.19 Given that

the Certificate Order was issued over a year ago, NITHPOs opportunity to seek

rehearing has long passed, thus negating any benefit NITHPO would obtain from party

status. Likewise, NITHPO already has forgone its right to appeal the Certificate Order,

as NGA Section 19(a) also provides that [n]o proceeding to review any order of the

Commission shall be brought by any person unless such person shall have made

application to the Commission for a rehearing thereon.20

Denial of NITHPOs late motion to intervene will not prevent NITHPO from

advancing its interests in the proceeding. NITHPO states that its sole interest is to

ensure a fair process for the identification and protection of the CSLs, and states that it

has not yet signed the MOA, and that FERC has not yet issued a Notice to Proceed in this

proceeding.21 NITHPO does not need party status to advance these two limited interests.

In fact, NITHPO was a full and active participant in the NHPA Section 106 process

without being a party to the proceeding.

NITHPOs statement that it has not yet signed the [MOA] is not germane to its

request to intervene. In fact, despite NITHPOs claim otherwise, NITHPOs signature on

the MOA is not required. In support of this claim, NITHPO cites 36 C.F.R.

17
NITPHO Motion at 8.
18
15 U.S.C. 717r(a) (2012).
19
See Transcon. Gas Pipe Line Corp., 126 FERC 61,097, P 12 (2009).
20
15 U.S.C. 717r(a) (2012). See, e.g., Greenbrier Pipeline Co., 106 FERC 61,165, P 13 (2004) (stating
that under NGA section 19(a), landowners failure to file timely request for rehearing of certificate order
precluded him from seeking judicial review of the certificate order).
21
NITPHO Late Motion at 8. The Commission granted Tennessees Requests for Notices to Proceed with
Tree Clearing and Full Construction in a delegated letter order issued on April 12, 2017, Docket No. CP14-
529-000 (April 12, 2017).

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800.6(c)(1)(ii), which states [t]he agency official, the SHPO/THPO, and the Council

are the signatories to a memorandum of agreement executed pursuant to paragraph (b)(2)

of this section. However, this section is inapplicable to NITHPO in this context as the

Project is not located on tribal lands.22 Nevertheless, NITHPO was invited to participate

as a concurring party to the MOA under 36 C.F.R. 806.6(c)(3), and chose not to

participate. NITHPO was, or should have been, aware that under 36 C.F.R.

800.6(c)(3), [t]he refusal of any party invited to concur in the memorandum of

agreement does not invalidate the memorandum of agreement.23 With the execution of

the MOA by the Commission and the ACHP, the Commission has fulfilled its obligations

under Section 106 of the NHPA.24 Therefore, consistent with its policy of denying

motions to intervene in the rehearing stage of a proceeding, Tennessees and the

Commissions extensive outreach to NITHPO about this Project over the course of

several years, and the prejudice such late intervention would have for Tennessee, the

Commission should deny NITHPOs Motion to Intervene Out-of-Time.

II. NITHPO Makes a Series of Incorrect and Unsupported Factual and Legal
Statements.

NITHPO inaccurately describes the Commissions tribal consultation process

with respect to the Project as not in compliance with Section 106 of the [NHPA],25

listing a series of alleged errors on the part of the Commission. To clarify confusion

22
See 36 C.F.R. 800.16(w) and (x) which defines Tribal Historic Preservation Officer as the tribal
official appointed by the tribe's chief governing authority or designated by a tribal ordinance or
preservation program who has assumed the responsibilities of the SHPO for purposes of section 106
compliance on tribal lands in accordance with section 101(d)(2) of the act and Tribal lands as all lands
within the exterior boundaries of any Indian reservation and all dependent Indian communities (emphasis
added).
23
36 C.F.R. 800.6(c)(3).
24
Id. 800.6(c).
25
NITHPO Late Motion at 4.

6
likely caused by NITHPOs late motion, Tennessee has attached a timeline of the

consultation process, which summarizes Tennessees outreach efforts to NITHPO and

other tribes over the course of this proceeding.26 Tennessee worked closely with the

tribes during the Section 106 process, including frequent communication, joint walkovers

and surveys along the proposed pipeline route. The timeline illustrates Tennessees and

the Commissions attempts to actively and persistently engage NITHPO and other tribes

to participate in the tribal consultation process.

NITHPO makes numerous inaccurate statements and unsupported legal assertions

in its late motion. Tennessee clarifies several of these points below:

Contrary to statements that NITHPO was never consulted to seek ways to avoid,
minimize or mitigate the adverse effects on the CSLs,27 NITHPO was
thoroughly consulted in this respect.28 Specifically, Doug Harris, Deputy
NITHPO attended meeting on December 5, 2016 in Connecticut to discuss
avoidance, minimization, and mitigation of potential adverse effects of the
Project. At that meeting, Tennessee shared its draft Treatment Plan for the
Massachusetts Loop: Avoidance, Minimization, And Mitigation (Treatment
Plan), which included an approach to avoid the vast majority of the identified
features and minimize and mitigate impacts to the remaining features.29
Tennessees proposed approach was supported by the Stockbridge-Munsee
THPO. After that meeting, the tribal representatives were invited multiple times
over the next couple months to comment further on the proposed Treatment Plan.
NITHPO never commented other than to urge the Commission to protect all the
features identified as CSLs.

Although the Commission did not complete consultation until after the Certificate
Order was issued, consultation did not [take] place too late in the process for it to
be meaningful under the current plan of action.30 Instead, the consultation
process and the executed MOA and Treatment Plan that resulted from the

26
See Summary of Tennessee Gas Pipeline Company, L.L.C. (Tennessee) Outreach Efforts to Tribes
(Attachment A).
27
NITHPO Late Motion at 4-5 (citing 18 C.F.R. 800.6(b)(2)).
28
18 C.F.R. 800.6(b)(2).
29
Supplemental Filing, Docket No. CP14-529-000 (Mar. 7, 2017). The Treatment Plan was filed as
privileged and confidential.
30
NITHPO Late Motion at 5.

7
culmination of consultation, provided a meaningful opportunity over the course of
over two years for the NITHPO and other tribes to participate in consultation on
the effects of the Project. Any delay in participation was due to the NITHPOs
reluctance to engage early in the process. Attachment A thoroughly documents
Tennessee and the Commission staffs efforts to engage the NITHPO and the
other interested tribes in the consultation process.

Contrary to assertions otherwise,31 NITHPO was invited to be a signatory to the


MOA under 18 C.F.R. 800.6(c)(2)(ii), which states the agency official may
invite an Indian tribe or Native Hawaiian organization 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.32 NITHPO has so
far declined that invitation.

The Commission did not fail[ ] to follow-up in a timely manner and allow[ ] two
years to pass before a report on CSLs was prepared and filed for this Project.33
Rather, NITHPO had multiple opportunities to survey the relevant Project area for
potential CSLs. As the timeline makes clear, NITHPO declined to communicate
with Commission staff or Tennessee and delayed attempts of Tennessees to
negotiate an agreement that would allow NITHPO and the other tribes to conduct
a survey, hire their chosen consultant, and prepare their report, all funded by
Tennessee. The Commission should reject NITHPOs argument that the delay,
for which it was responsible, caused NITHPO harm that should be redressed by
the Commission by granting this late motion to intervene.

As explained in more detail above, despite NITHPOs claim otherwise,


NITHPOs signature on the MOA is not required. Rather, the Commission
properly invited NITHPO and the other tribes to sign the MOA as a concurring
parties under 36 C.F.R. 806.6(c)(3).

NITHPOs multiple factual and legal inaccuracies fail to support its argument that

the Commission should take the extraordinary step and grant this late request for

intervention.

31
Id. at 4.
32
18 C.F.R. 800.6(c)(2)(ii).
33
NITHPO Late Motion at 5 (emphasis in original).

8
CONCLUSION

Based on the Commissions long-standing precedent and policy denying late

motions to intervene after issuance of a certificate order, the prejudice such late

intervention would cause to Tennessee, and Tennessees and the Commissions extensive

outreach to, and consultation with, NITHPO regarding the Project over the course of

several years, the Commission should deny NITHPOs Motion to Intervene Out-of-Time.

Respectfully submitted,

TENNESSEE GAS PIPELINE COMPANY, L.L.C.

By: /s/ Mosby G. Perrow


Mosby G. Perrow
Assistant General Counsel
Tennessee Gas Pipeline Company, L.L.C.
1001 Louisiana Street, Suite 1000
Houston, Texas 77002
Telephone: (713) 420-6547
mosby_perrow@kindermorgan.com

Michael R. Pincus
Van Ness Feldman, LLP
1050 Thomas Jefferson Street, NW
Washington, DC 20007
Telephone: 202-298-1800
mrp@vnf.com

Counsel for Tennessee Gas Pipeline Company, L.L.C.

Dated: April 12, 2017

9
CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing document upon each

person designated on the official service list compiled by the Federal Energy Regulatory

Commission in this proceeding.

Dated at Houston, Texas this 12th day of April 2017.

/s/ Shannon M. Miller


Shannon M. Miller
1001 Louisiana
Houston, Texas 77002
ATTACHMENT A
TENNESSEE GAS PIPELINE COMPANY, L.L.C.

Connecticut Expansion Project


CP14-529-000

Summary of Tennessee Gas Pipeline Company, L.L.C. (Tennessee) Outreach Efforts to Tribes
As of April 12, 2017

September 4, 2013- Tennessees cultural resource contractor, The Public Archaeology


Laboratory, Inc. (PAL), on behalf of Tennessee, informed American Indian Tribal
Historic Preservation Officers (THPOs) of the fieldwork schedule for the Project,
solicited them for information, and invited them to engage in the fieldwork.

September 20, 2013- The Delaware Tribe of Indians sent a letter to PAL communicating
that the tribe would like to receive additional information about the project and continue
as a consulting party on the Project.

March 6, 2014- The Mashantucket Pequot Tribal Nations THPO emailed Tennessees
legal counsel to request information regarding the cultural resources component of the
project.

July 24, 2014- PAL, on behalf of Tennessee, submitted the archaeological survey reports to all
of the American Indian Tribes identified in Table 4.2-2 in Resource Report 4 filed with
Tennessees application submitted to FERC for the Project . In the same submittal, PAL also
submitted the draft Unanticipated Discovery Plan to the nine federally recognized Tribes, the
three non-federally recognized tribes, and the two state agencies.

July 31, 2014 Tennessee filed its Application for a Certificate of Public Convenience
and Necessity for the Project with the Commission.

August 13, 2014- Massachusetts State Historic Preservation Office (SHPO) submitted
a letter to FERC stating that two previously identified historic sites in the project vicinity
appear to be avoidable during project construction.

August 21, 2014- The Mashantucket Pequot Tribal Nations THPO emailed Tennessee
and the Commission expressing an interest in the project and requested that project-
specific information should be submitted to the Tribe for review.

August 25, 2014- PAL emailed the Mashantucket Pequot Tribal Nations THPO and
provided a link to the FERC eLibrary to access Tennessees Application to the
Commission.

August 29, 2014 - The Stockbridge-Munsee Tribal Historic Preservation Office


submitted a letter to FERC stating their cultural resource concerns have been satisfied
and their concurrence with the finding of the Massachusetts SHPO office findings.

1
September 3, 2014 The United Southern and Eastern Tribes (USET), of which all of
the tribes, except the Stockbridge-Munsee, currently engaged in negotiations are
members, submitted a letter to FERC. FERC was made aware of tribal concerns and
demands for consultation on ceremonial stone landscapes (CSLs) at this time, although
the letter appeared to show some confusion between the Project and Tennessees
proposed Northeast Energy Direct (NED) Project.

September 4, 2014 Tennessee sent project notification letters to federally-recognized


Indian tribes, state-recognized tribes, and several Indian organizations as part of its
information sharing responsibilities as an applicant.

September 12, 2014 The Commission placed the USET letter from September 4, 2014
in the Project docket.

October 17, 2014 Ellen St. Onge (Commission Staff) reported on a meeting with tribal
representatives on the Algonquin Incremental Market (AIM) Project consultation
issues where Ms. St. Onge reports that Project tribal issues and CSLs were also
discussed. In an email sent in February to the ACOE, Ms. St. Onge states that at this
meeting Tribes notified FERC then that they expected the Commission to issue a formal
consultation letter, as lead agency, asking the Tribes to work with Tennessee. This
demand is not noted in the Commission memo filed on in Docket No. CP14-529 on
November 5, 2014.

February 19, 2015 Alisa Lykens (Commission Staff) filed an update on the Seven
Point Plan to address concerns raised by USET regarding CSLs in the AIM Project
proceeding, and then by later discussion between the Commission and the tribes, to the
Project consultation process. The Commission stated in this report that Doug Harris
with USET makes clear that the Tribes will not engage on the Project until the
Commission initiates a formal consultation and facilitates a meeting on tribal lands for
the discussion of CSL surveys for the Project.

February 27, 2015 The Commission sent consultation letters to Tribes, including the
four Tennessee has engaged with on the Project.

April 27, 2015 At the conclusion of a seminar held by FERC Staff on National Historic
Preservation Act (NHPA) Section 106 consultation and tribal consultation policy at the
Commission, and a subsequent NED Project tribal dialogue, Commission Staff
archeologist Paul Friedman asked tribal representatives present whether they would like a
meeting on the Project and NHPA Section 106 consultation issues. Tribal representatives
responded affirmatively. Mr. Friedman makes clear he is asking on behalf of assigned
FERC Staff member Ms. St. Onge, who was not present at the time. Mr. Friedman says it
was raised because Ms. St. Onge reported no tribal response to FERCs letters.

May 7. 2015 Ellen St. Onge (Commission) contacted James Quinn (Mohegan Tribe)
about setting up a consultation meeting on the Project at the Mohegan Sun Casino.

2
May 14, 2015 By return email exchange, Ellen St. Onge (Commission Staff) suggested
June 3 as a potential Project consultation meeting.

May 26, 2015 Tennessee counsel and project management held planning meeting for
expected June tribal consultation meeting on the Project.

May 29, 2015 Ellen St. Onge (Commission Staff) informed Tennessee that she had not
received any confirmation from the Mohegan Tribe on the proposed June 3 date and that
it was then too late to schedule it. Ms. St. Onge asked for other potential dates.

June 1, 2015 Tennessee sent Ellen St. Onge (Commission Staff) four dates in June as
potential meeting dates with Tribes.

June 26, 2015 Ellen St. Onge (Commission Staff) updated Cori Rose (ACOE) at the
request of Tennessee, to describe the tribal consultation process on the Project to date.

June 30, 2015 Cori Rose (ACOE) responded back that ACOE cannot issue a permit
unless the NHPA Section 106 review process is complete. Ms. Rose suggests that if the
surveys anticipated cannot be completed during a timely environmental review period by
the Commission, they can be done in a survey treatment plan in an executed
Memorandum of Agreement (MOA).

November 3, 2015 After a long continued delay and the statements from the ACOE
regarding the need to complete tribal consultation and the NHPA Section 106 process.
Tennessee held an internal meeting to chart next steps. Tennessee determined that it
would contact numerous Commission Staff to raise the issue of the delay and push for
November dates for the Tribes to do a walk over of the Project route.

November 10, 2015 Tennessee staff held a call with Commission Staff members Elaine
Baum and Ellen St. Onge to discuss the urgent need for progress on tribal consultation on
the Project. When asked whether the Commission would be willing to send a letter
prepared by Tennessee to Tribes setting up a site visit for November or December, Ms.
Baum said the Commission could not and would not send such a letter or attend such a
visit. Tennessee counsel raised the possibility of addressing consultation delays with the
Commission Director of the Office of Energy Projects Ann Miles.

November 12, 2015 Elaine Baum (Commission Staff) called Tennessee to ask
Tennessee to take the following steps: (a) draft a letter for the Commission to send out
noticing a site visit on an agreed day in November or December 2015; and (b) have Cori
Rose of the U.S. Army Corps of Engineers call Ellen St. Onge (Commission Staff)
directly about consultation concerns.

December 8, 2015 An initial meeting was held at Tennessees Agawam compressor


station between staff from Tennessee, the PAL consulting firm, the Commission, and
members of the four tribes concerned with CSLs. In attendance were representatives of
the THPOs for the Narragansett Tribe, the Mohegan Tribe, the Mashantucket (Western)

3
Pequot Tribe, and the Wampanoag Tribe of Gay Head (Aquinnah). After much
discussion, Ellen St. Onge (Commission Staff) agreed to issue a second letter from the
Commission on consultation, asking the Tribes to work with Tennessee as part of
fulfilling the Commissions consultation process. The letter was issued and the group
reviewed maps to determine what areas needed a walk over. The late afternoon is spent
conducting Project corridor walks.

December 9, 2015 A partial walk of the Project corridor in Massachusetts is


completed. The Tribal representatives noted the need to return for survey work.

December 10, 2015 Site visit and walk of the remaining Project corridor in
Connecticut is completed.

December 15, 2015 Tennessees counsel sent a detailed email to tribal representatives
requesting specific information for inclusion in draft agreements on compensation and
survey protocol.

December 21, 2015 Tennessees counsel held a conference call with the four tribal
representatives (at their request). Tribal representatives promised lists of personnel, rates
of pay expected, and template agreements with other pipelines to be sent to counsel by
December 23, 2015.

December 24, 2015 Tennessees counsel notified the four tribal representatives via
email that he had not received any information promised or requested at any point since
the December 8-10, 2015 meetings.

December 28, 2015 Commission Staff published meeting notes in the Project docket
describing the meeting between Tennessee, the PAL consulting firm, the Commission,
and members of the four tribes concerned with CSLs in Agawam, Massachusetts on
December 8, 2015.

January 7, 2016 Doug Harris (Narragansett Tribe) sent Tennessees counsel, , an


example of a consultation services agreement and survey protocol from a 2013
Connecticut Light and Power project. None of the information promised by the tribal
representatives in December 2015 had been provided up to this point.

February 19 and 22, 2016 Tennessees counsel telephoned each of the THPO
representatives from the four Tribes who have shown interest in entering into an
agreement to survey the 3.8 mile Massachusetts Project corridor in greater detail.

February 26, 2016 Tennessees counsel provided, via email, a proposed comprehensive
agreement for Tennessees funding of survey work for tribal review. The contract is
proposed to be between the tribes chosen consulting firm, Ceremonial Stone
Landscapes, L.L.C., and Tennessee, with money included for distribution to tribal
designees working on the project. A request for comment and availability for a
conference call was requested with the email and attached contract. Tennessee requested

4
the Tribes reply by March 2, 2016.

March 8, 2016 Tennessees counsel re-sent the February 26, 2016 email and
attachment requesting an opportunity to engage representatives of Tribes on the potential
ceremonial stone landscape survey on the 3.8 mile Massachusetts Project segment.

March 11, 2016 FERC issued its Order Issuing Certificate for the Project.

March 16, 2016 Tennessees counsel requested a conference call to discuss contracts
sent to the Tribes on February 26, 2016 and March 8, 2016.

Mid-March to Late April Tennessee, FERC, and Tribes coordinated to organize a


face-to-face meeting between Tennessee and Tribes in Connecticut.

April 26, 2016 Tennessee representatives, attended a meeting in Connecticut with


THPO representatives from the four tribes (Doug Harris Narraganset; Bettina
Washington Pequot; Marissa Turnbull - Mashantucket Pequot Tribal Nation; and James
Quinn Mohegan), at the Mohegan Sun Casino in Connecticut. The meeting attendees
discussed terms and conditions for a draft agreement for the Tribes to conduct a survey
and report for ceremonial stone landscapes along the 3.8 mile project route in
Massachusetts.

April 27, 2016 Marissa Turnbull, THPO for Mashantucket Pequot Tribal Nation,
emailed the agreement with edits reflecting the April 26, 2016 meeting.

May 6, 2016 Tennessee arranged and participated in a conference call with


representatives from the four tribes, as well as Commission Staff. The purpose of the
meeting was to continue the negotiations to finalize the contract to conduct ceremonial
stone landscape surveys along the Project route in Massachusetts.

May 12, 2016 Tennessee sent, via email, a proposal to each of the four Tribal
representatives. The letter included the amount that Tennessee as offering to pay to the
Tribes to conduct the ceremonial stone landscape surveys.

May 13, 2016 James Quinn (Mohegan Tribe) sent an email to Tennessee, stating that
he would respond to Tennessees May 12 letter after discussing with the Tribes legal
representatives and leadership.

May 17, 2016 James Quinn (Mohegan Tribe) sent an email to Tennessee requesting a
copy of an up to date version of the contractual proposal for review by his legal counsel.

May 20, 2016 Tennessees counsel sent an email to the four tribal representatives. A
revised draft of the Cultural Resources Consultation Services Agreement, was included
as an attachment to the email, incorporating Mashantucket Pequot Tribal Nations
edits/comments on the draft agreement that were captured in the joint meeting held
between the Tribes and Tennessee on April 26, 2016 in Connecticut.

5
May 20, 2016 Tennessee sent an email to Elaine Baum (Commission Staff) and Ellen
St. Onge (Commission Staff) to notify that Tennessee sent a revised draft of the survey
agreement to the Tribes on that day.

May 20, 2016 -- Elaine Baum (Commission Staff) responded to Tennessees email of
May 20, 2016 and requested a copy of the email that Tennessee sent to the Tribes that
transmitted the revised contract.

May 20, 2016 As requested in Elaine Baums (Commission Staff) May 20 email,
Tennessee forwarded the cover email sent by Tennessees counsel to the Tribal
representatives on May 20, 2016.

May 24, 2016 Elaine Baum (Commission Staff) replied to Tennessees email of May
20, stating that FERC did not need any additional information at this time.

May 27, 2016 Ellen St. Onge (Commission Staff) sent an email to Tennessee to inquire
if any of the tribes had responded to Tennessees communications regarding the revised
contract emailed to the Tribes on May 20, 2016.

May 27, 2016 By reply email to Ellen St. Onge (Commission Staff), Tennessee wrote
that he had received no response from the Tribes regarding the revised contract emailed
to the Tribes on May 20, 2016.

June 2, 2016 Tennessee called Marissa Turnbull (Mashantucket Pequot Tribal Nation),
to follow-up on the status of the response to Tennessees May 12 letter. Tennessee left a
voicemail for Ms. Turnbull.

June 2, 2016 Tennessee called Bettina Washington (Wampanoag Tribe of Gay Head
(Aquinnah)) to follow-up on the status of the response to the May 12 letter. Ms.
Washington replied that a response would be provided by the following Monday (June 6,
2016). Tennessee followed-up the call with an email confirming the June 6, 2016 date
that Ms. Bettina gave for providing feedback.

June 2, 2016 Tennessee called Doug Harris (Narragansett Indian Tribe), to follow-up
on the status of the response to the May 12 letter. Mr. Harris replied that a response
would be provided by the middle of the following week (June 8, 2016). Tennessee
followed-up the call with an email confirming the June 8, 2016 date that Mr. Harris gave
for providing feedback.

June 2, 2016 Tennessee called James Quinn (Mohegan Tribe of Indians of


Connecticut), to follow-up on the status of the response to Tennessees letter sent to the
Tribal representatives on May 12, 2016. Tennessee left a voicemail for Mr. Quinn, and
requested that Mr. Quinn get back to Tennessee with any questions and to advise when a
response would be provided. No feedback has been received to date from Mr. Quinn
since the voicemail.

6
June 3, 2016 Tennessee (Tennessee) emailed Elaine Baum and Ellen St. Onge
(Commission Staff) to notify them of the June 2, 2016 telephone conversations
Tennessee had with Doug Harris (Narragansett) and Bettina Washington (Gayhead
Wampanoag). In the email, Tennessee also mentioned the voicemail messages that
Tennessee left for James Quinn (Mohegan) and Marissa Turnbull (Mashantucket Pequot)
on June 2, 2016.

June 9, 2016 Tennessees counsel and Tennessee discussed with Commission Staff
ideas for additional reasonable and good faith steps to engage tribes on consultation at
FERC headquarters.

June 16, 2016 Tennessee called James Quinn (Mohegan) to follow-up to follow-up on
the status of the response to Tennessees May 12 letter. Tennessee spoke to the
receptionist for the tribal office, and requested that she ask Mr. Quinn to return the call to
provide a status update as soon as possible.

June 16, 2016 -- Tennessee called Bettina Washington (Gayhead Wampanoag) to


follow-up to follow-up on the status of the response to Tennessees May 12 letter.
Tennessee left a voicemail for Ms. Washington, and requested that she return the call to
provide a status update as soon as possible.

June 16, 2016 Tennessee called Marisa Turnbull (Mashantucket Pequot) to follow-up
to follow-up on the status of the response to Tennessees May 12 letter. Tennessee left a
voicemail for Ms. Turnbull, and requested that she return the call to provide a status
update as soon as possible.

June 16, 2016 Tennessee called Doug Harris (Narragansett) to follow-up to follow-up
on the status of the response to Tennessees May 12 letter. Mr. Harris stated that he had
been in touch with the other three tribal representatives (Bettina Washington Pequot;
Marissa Turnbull - Mashantucket Pequot Tribal Nation; and James Quinn Mohegan),
and that he would follow-up with them again. Mr. Harris stated that he would transmit a
counter-proposal to the dollar amount proposed in Tennessees May 12, 2016 letter by
the end of the day on June 17, 2016.

June 16, 2016 Tennessee sent a follow-up email to James Quinn (Mohegan) to confirm
that he received the message from Tennessees phone call earlier that day.

June 16, 2016 Tennessee sent a follow-up email to Bettina Washington (Gayhead
Wampanoag) to confirm that she received the message from Tennessees phone call
earlier that day.

June 16, 2016 Tennessee sent a follow-up email to Marisa Turnbull (Mashantucket
Pequot) to confirm that she received the message from Tennessees phone call earlier that
day.

7
June 16, 2016 Tennessee sent a follow-up email to Doug Harris (Narragansett) to
confirm the details of the phone discussion with Tennessee earlier that day.

June 17, 2017 Tennessee did not receive a counter-proposal from Doug Harris.

June 20, 2016 Doug Harris sent a counter-proposal to Tennessee for conducting the
CSL survey.

June 28, 2016 Tennessee participated in conference call with Doug Harris, and
Tennessee sent email to Doug Harris to memorialize this meeting.

June 28, 2016 Tennessee sent email to FERC Staff (Elain Baum, Ellen St. Onge, and
Shannon Jones) with an update on tribal outreach.

July 1, 2016 James Quinn with the Mohegan Tribe informed Tennessee via email that
the Tribe would not be participating in the CSL survey in MA, but did want to receive a
copy of any survey reports and relevant mapping.

July 6, 2016 Tennessee spoke with Doug Harris. Doug Harris indicated that he was
amenable to starting work by end of July 2016. Doug Harris further indicated that he
would contact Tennessee by July 8 if not sooner.

July 6, 2016 Bettina Washington responded to Tennessees email dated May 12


transmitting the contract to conduct the CSL survey.

July 8, 2016 Tennessee received no response from Doug Harris.

July 11, 2016 -- Tennessee replied to Bettina Washingtons July 6 email, and stated that
Tennessee accepted her new proposed hourly rate, and summarizes the agreement with
the Tribe.

July 12, 2016 Tennessee participated in a conference call with Ken Leonard and Eva
Gibavic from CLR, LLC (Doug Harris consultant) (CLR) to discuss opportunities to
reduce CLRs proposed expenses to conduct the CSL survey.

July 12, 2016 -- Bettina Washington replied to Tennessees July 11 email, and stated that
she will be on lookout for the revised contract.

July 16, 2016 CLR sent email to Tennessee, and advised that Doug Harris had
communicated to CLR that the Tribes would prefer to take the lead in resolving the open
issues in the contract.

July 19, 2016 Tennessee sent email to Doug Harris to inquire about status contract
proposals.

July 20, 2016 Tennessee spoke with Doug Harris. Doug Harris stated that he was still
8
trying to work with other Tribes about reducing fees, and stated that he would get back to
Tennessee by July 22.

July 22, 2016 Tennessee called Doug Harris. Doug Harris stated that he had been
unable to reach other Tribes and would get back to Tennessee by July 26.

July 28, 2016 Ellen St. Onge (FERC) spoke with Tennessee about status of contracts to
conduct CSL surveys. Ellen St. Onge agreed to contact Doug Harris to inquire about
status of contract.

July 28, 2016 -- Tennessee emailed CSL survey contract to Bettina Washington for
execution, requesting that a signed copy be returned to Tennessee by August 3.

July 29, 2016 Ellen St. Onge sent email to Tennessee, and stated that she had spoken
with Doug Harris. Doug Harris told Ellen St. Onge that he would be in touch with TGP
early the following week.

August 4, 2016 Tennessee called Doug Harris to inquire about status of contract. Doug
Harris advised that the contract was forthcoming.

August 11, 2016 Tennessee received an executed CSL survey contract back from the
Mashantucket Pequot Tribe.

August 12, 2016 Tennessee emailed contracts to Doug Harris and CLR for signature.

August 15, 2016 -- Tennessee called and left voicemail for Bettina Washington to inquire
about status of contract.

August 16, 2016 Tennessee called Doug Harris to inquire about status of contract.
Doug Harris stated that he will send back the contract by August 17.

August 16, 2016 -- Tennessee called Bettina Washington to discuss the status of contract.
Bettina Washington committed to send a contract to Tennessee by August 18.

August 16, 2016 Tennessee emailed Elaine Baum (Commission Staff) Tennessees
tribal consultation timeline.

August 17, 2016 Tennessee sent email to Doug Harris, CLR, and FERC confirming a
conference call to discuss the status of the Narragansett and CLR contracts.

August 18, 2016 Tennessee has conference call with Doug Harris, CLR, Pequot,
Wampanoag, and FERC regarding the contract.

August 19, 2016 Tennessee sent email Doug Harris, CLR, and Pequot executed copy
of contracts.

9
August 19, 2016 Tennessee sent email Bettina Washington (Wampanoag) executed
copy of contact.

August 22, 2016 Tennessee sent email to Bettina Washington requesting signed
contract.

September 1, 2016 Tennessee sent email to FERC requesting a sit down meeting to
discuss process for completing consultation once CSL survey is complete.

September 1, 2016 Tennessee sent email to FERC with approved CSL survey work
plan.

September 8, 2016 Tennessee sent email to Valarie Hauser (ACHP) requesting ACHP
join sit down meeting with Tennessee and FERC on September 13, 2016.

September 13, 2016 Tennessee met with FERC and ACHP in Washington DC to
discuss process for completing consultations and to provide a project update on Section
106 consultations to date.

September 21, 2016 Tennessee sent email to Narragansetts, Wampanoag, Pequot,


Mohegan, and CLR requesting a sit down meeting to discuss CSL survey findings.

September 22, 2016 Tennessee talks with CLR to confirm CSL report completion will
be filed with FERC on October 1, 2016 as agreed upon in the contracts.

September 24, 2016 Tennessee sent email to tribes, CLR, and FERC responding to
Doug Harriss voicemail indicating the CSL survey will not be completed on October 1,
2016 as agreed upon in the contracts.

September 26, 2016 Tennessee receives draft CSL survey report from CLR.

October 1, 2016 Tribes submit final CSL survey to FERC and to Tennessee on
schedule. The final survey identified 73 CSLs features within the Project ROW that the
Tribes determined to be eligible for listing on the National Register of Historic Properties
due to cultural and religious significance to the Tribes.

October 1, 2016 Tennessee initiates discussions with construction contractor on CSL


avoidance.

October 5, 2016 Tennessee and FERC meet in DC to discuss Tennessees preliminary


review of the CSL report and location of the stones along the Project route. Tennessee
participates on a panel with representatives from USET, the ACHP, and FERC to discuss
best practices in NHPA Section 106 consultation.

October 5, 2016- Ellen St. Onge (FERC) sent email to Tribes and Tennessee requesting a
walkover of the 3.8 mile loop to review identified features and discuss next process to
10
complete consultations.

October 12, 2016 Tennessee meets with construction contractor on the Project right of
way to review each of the CSLs identified in the CSL report and discuss avoidance.

October 13, 2016 Tennessee meets with FERC, the U.S Army Corps of Engineers, and
tribal representatives on the Project right of way to review the specific CSLs identified in
the survey report and to discuss the avoidance techniques and challenges identified by the
construction contractor the day before.

October 22, 2016 Tennessee has follow-up call with FERC to debrief on the site visit
the week before.

October 25, 2016 Tennessee updated FERC on progress with construction contractor
and proposes another in-person meeting to go over a draft treatment plan based on the
work with the tribes, FERC, the U.S. Army Corps, and the construction contractor.

November 7, 2016 Tennessee sent email to Bonney Hartley (THPO Stockbridge-


Munsee) after it became apparent that the CSL survey identified historic/religious
properties on Stockbridge-Munsee homeland.

November 7, 2016 Tennessee sent email to FERC, Tribes, and CLR informing them
that Tennessee would be sharing the CLR survey report with the Stockbridge-Munsee.

November 9, 2016 Tennessee met with FERC and ACHP in Washington, DC to


discuss the process of completing Section 106 consultation.

November 10, 2016 Tennessee sent email to FERC and ACHP with action items from
the November 9, 2016 meeting.

November 10, 2016 Tennessee sent email to FERC and Tribes requesting a sit down
meeting on Tribal land to discuss Tennessees meeting on November 10, 2016 with
FERC and ACHP and to discuss process for completing consultations.

November 21, 2016 Tennessee sent email to FERC and Tribes that Tennessee would
be available to meet on Tribal land on December 5, 2016 to discuss process for
completing consultations.

November 23, 2016- Cori Rose (ACOE) sent email to FERC, CT DEEP, MassDEP,
Tribes, and Tennessee stating that Section 106 consultation was completed in ACOE
permit areas.

November 28, 2016 Doug Harris sent email to FERC, Tribes, and Tennessee stating
that December 5, 2016 is a good day to meet on Tribal land to discuss process for
completing consultations and to review Tennessees draft avoidance and protection plan.

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November 30, 2016 The Stockbridge-Munsee Tribe filed a letter with FERC stating the
Stockbridge-Munsee position on avoiding and protecting CSLs.

December 5, 2016 Tennessee, FERC, ACHP, and Tribes (including Stockbridge-


Munsee) meet on the Pequot reservation to discuss process for completing consultation
and to review Tennessees Ceremonial Stone Landscapes Avoidance, Minimization, and
Mitigation Plan (Treatment Plan).

December 15, 2016 Doug Harris, Bonney Hartley, and James Quinn sent email to
FERC with comments on Tennessees Treatment Plan.

December 16, 2016 Marissa Turnbull sent email to FERC with comments on
Tennessees Treatment Plan.

December 29, 2016 FERC sent a letter to the Director of the Advisory Council on
Historic Preservation (ACHP) requesting the ACHPs participation in the resolution of
adverse effects on historic properties by being a signatory to a Memorandum of
Agreement (MOA) (letter filed in FERC Docket CP14-529 on December 30, 2016).

January 3, 2017 Doug Harris (Narragansett) sent letter to FERC in response to


FERCs Notification of Adverse Effects sent to the ACHP (letter filed in FERC Docket
CP14-529. Letter stated that Tennessees proposed documentation, deconstruction, and
reconstruction of the 21 CSLs that cannot be avoided during construction was not
acceptable mitigation to the Narragansett.

January 26, 2017 FERC distributed its comments to Tennessees draft Treatment Plan
for CSLs to Tribes and ACHP for review. FERC updated all parties that ACHP will be
distributing additional comments and set a tentative date for a meeting between the
parties for the following Monday or Tuesday.

January 27, 2017 Tennessee provided FERC with an initial response to FERCs
comments to the draft Treatment Plan and FERC replied to Tennessees concerns.

January 30, 2017 ACHP distributed its comments to Tennessees draft Treatment Plan
for CLSs to Tennessee.

January 31, 2017 Stockbridge-Munsee provided a proposed educational component


for the Treatment Plan to FERC and to Tennessee. No other tribes provided similar
feedback.

February 1, 2017 FERC distributed a draft MOA that reflected FERCs and ACHPs
edits. FERC proposed a two-week review period for Tribes and Tennessee to comment
on the draft by February 15, 2017. FERC also proposed a conference call for February 3,
2017.

February 1, 2017 Tennessee distributed to the Tribes, FERC, and ACHP a revised

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Treatment Plan.

February 1, 2017 Stockbridge-Munsee indicated that they were available for proposed
call and committed to providing comments to the MOA on or before February 15, 2017.

February 3, 2017 FERC held a conference call to discuss plan for moving forward
with comments and finalizing MOA and Treatment Plan.

February 13, 2017 FERC circulated a reminder email that comments are due on
February 15, 2017 and proposed a meeting for February 16, 2017 to discuss comments.

February 16, 2017 FERC held a conference call to discuss comments and the schedule
moving forward.

February 16, 2017 Narragansett sent a letter to FERC proposing no edits to the MOA,
but stating that the proposal to remove and replace a number of identified stone features
amounted to sacrilege and destruction.

February 17, 2017 FERC issued the Final MOA, reflecting comments received and
establishing requirements for Tennessee to finalize the Treatment Plan prior to
construction.

February 24, 2017 ACHP executed the Final MOA.

February 24, 2017 Stockbridge-Munsee provided comments to the Treatment Plan.

February 27, 2017 Wampanoag Tribe submitted comments to the Treatment Plan.

February 28, 2017 Tennessee submitted a revised Treatment Plan reflecting comments
that Tennessee received and was able to incorporate.

March 2, 2017 Tennessee received FERCs and ACHPs final edits to the Treatment
Plan.

March 6, 2017 Tennessee filed the final Treatment Plan (under seal as Privileged) in
FERC Docket CP14-529.

March 7, 2017 FERC accepted the Treatment Plan as final.

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