Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA Plaintiff, ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:85-cv-1078 (PCD)

v. 43.47 ACRES OF LAND, et al., Defendants.

DECEMBER 22, 2005

KENT SCHOOL'S OBJECTION TO MOTION OF SCHAGHTICOKE TRIBAL NATION FOR CLARIFICATION OF MAY 8, 2001 SCHEDULING ORDER AND FOR EXPEDITED CONSIDERATION The defendant, Kent School Corporation, ("Kent School") hereby objects to the Schaghticoke Tribal Nation's Motion for Clarification of May 8, 2001 Scheduling Order and Motion for Expedited Consideration dated December 12, 2005. Once again, See, Order re: Pending Motions, Civil No. H-85-1078 (PCD) (Sept. 30, 2005), the Schaghticoke Tribal Nation ("STN"), for reasons that are insufficient and plainly without merit, seeks a further delay of proceedings in this case, asserting that it us unable to follow the orderly procedures provided by the Administrative Procedures Act ("APA") in seeking review of the October 12, 2005 Decision of the Bureau of Indian Affairs ("BIA") denying STN's petition for federal acknowledgment, because the BIA will not release, prior to the filing of STN's petition for review, an updated copy of the FAIR (Federal Acknowledgement Information Resource System) database. STN's motion for clarification should be denied. Nothing in this court's May 8, 2001 Scheduling Order (the "Scheduling Order") nor accepted procedures regarding the judicial review of final agency action under the APA provides for, in effect, a release of the "record" pertaining to STN's appeal from the BIA's decision denying federal acknowledgment prior to the actual filing of the appeal.
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I.

FACTUAL BACKGROUND On May 8, 2001, the court entered the Scheduling Order, providing for the consideration

by BIA of the STN's petition for federal acknowledgment and providing detailed procedures with respect to further administrative proceedings, culminating with the ability of a party to bring this matter back before this court following final agency action by the BIA. It is beyond dispute that the terms of the Scheduling Order were intensively negotiated over a lengthy period of time. The Scheduling Order provided for the BIA to create an electronic database of documents and information submitted by the parties in connection with the administrative proceedings relating to the STN's petition for federal acknowledgment. Although the Scheduling Order provided for the release of the initial FAIR database on CD-ROM to the parties, and any updated database as of the issuance of the Proposed Finding and the Final Determination, nothing in the Scheduling Order provides for the release by BIA of yet another updated FAIR database prior to the appeal of a party from the final agency action of the BIA (Scheduling Order at subparagraph d) ­ h)). Indeed, after the entry of the Scheduling Order, the parties engaged in further negotiations, which resulted in the filing of the Report and Joint Motion on Consent to Amend Scheduling Order in February, 2004. The amendment to the Scheduling Order, which was reached by stipulation of the parties, dealt with further independent review and reconsideration before the Interior Board of Indian Appeals ("IBIA") pursuant to 25 C.F.R. § 83.11 and the procedures to be followed with respect to such independent review by the IBIA. The stipulated amendment to the Scheduling Order provided that any additional review under the APA in this court would be filed only at the conclusion of the administrative proceedings when there is a final effective agency decision. Tellingly, the stipulated amendment to the Scheduling Order did

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not provide for the release of any updated FAIR database, either in connection with an IBIA appeal or in connection with final agency action by the BIA following an IBIA appeal. II. ARGUMENT As set forth in STN's motion, the BIA has apparently refused STN's request for an updated copy of the FAIR database in advance of the filing of its petition for review in this court and has taken the position that STN is not entitled to an updated copy of the FAIR database until after STN files a petition for review of the Reconsidered Final Determination under the APA with this court. The BIA's position is fully supported by the terms of the Scheduling Order and amended scheduling order and with accepted practice regarding appeals under the APA. First, as set forth above, nothing in the scheduling orders entered by this court requires that the BIA release an updated copy of the FAIR database prior to the filing by STN of its petition for review in this court. Given the history of contested and intensely negotiated proceedings by the parties with respect to the entry of scheduling orders by this court, it is clear that had any of the parties intended that STN should receive a copy of the updated FAIR database as a condition to the filing of a petition for review, such a provision would have been included in one of the scheduling orders. The scheduling orders do not so provide. Although, at various milestones with respect to the administrative proceedings, the release of an updated FAIR database was provided for, no provision in the Scheduling Orders supports STN's position that it is entitled to an updated copy of the FAIR database prior to the filing of its petition for review in this court. Second, while an updated version of the FAIR databases has been released during the administrative proceedings, such has only occurred in a manner consistent with the acknowledgment regulations. The reason for doing so was to ensure that BIA had all of the evidence before it and provided all parties the opportunity to review existing documents in 41653771.1 -3-

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developing their submissions. In fact, the regulations require that the petitioners receive the documents filed by other parties and that they have an opportunity to respond. 25 CFR 83.10(f)(2) (prior to proposed finding); 83.10(i) (proposed finding stage); and 83.11(b)(2) (at final determination stage when a request for reconsideration is filed with IBIA ­ applies to all parties). There is no regulation providing for such a record release after the revised final determination (final decision in the terminology of the Scheduling Order). Thus, the process described in the Scheduling Order basically tracks what the regulations provide for. STN is asking for something that goes beyond the regulations and that no other party on the losing side of a final determination has been able to obtain ­ an advance, pre-litigation copy of the record. Third, accepted procedures under the APA do not provide for the administrative agency to submit the record on appeal prior to the time the petition for review of the administrative agency action is filed. This makes sense, as the issues delineated on a petition for review often focus the agency's action in preparing the record and may also help to narrow both the issues on appeal and the volume of the record to be filed in connection with the petition for review which, in this case is, to say the least, voluminous. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419-420 (1971). Indeed, STN's motion cites no legal authority in support of its argument that BIA is required to release the updated FAIR database prior to the time STN files its petition for review, because none exists. In light of the foregoing, STN's request that the time be extended for filing its petition for review until 90 days after it receives an updated FAIR database should be denied. Such an order is unwarranted and unnecessary. STN should be required to file its petition for review in a timely fashion, on or before January 12, 2006. Thereafter, within a reasonable time, the BIA should file the record on the STN's APA appeal. If STN, upon reviewing the record, believes

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that issues in addition to those which it initially raises in its petition for review should be included, it may file a motion under Rule 15 of the Federal Rules of Civil Procedure to amend its petition for review. Kent School takes no position on such a motion and must obviously reserve its position with respect to such a motion until it sees it. The point, however, is that STN will not be prejudiced in proceeding as described above and in following the typical and accepted procedures that apply with respect to APA review. WHEREFORE, Kent School respectfully requests that the court deny the Schaghticoke Tribal Nation's Motion for Clarification of May 8, 2001 Scheduling Order and Motion for Expedited Consideration. Respectfully submitted, DEFENDANT, KENT SCHOOL CORPORATION, INC.

By____/s/ David J. Elliott____ David J. Elliott (ct04301) Eric L. Sussman (ct19723) DAY, BERRY & HOWARD LLP CityPlace I Hartford, CT 06103-3499 (860) 275-0100

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CERTIFICATE OF SERVICE THIS IS TO CERTIFY that a copy of the foregoing MEMORANDUM IN SUPPORT OF DEFENDANT Kent School SCHOOL CORPORATION, INC.'S MOTION FOR PROTECTIVE ORDER was mailed on this date, postage prepaid, to:
Eric W. Wiechmannn David Reif Robert J. Gallo 185 Asylum Street Hartford, CT 06103 John B. Hughes Esq. Chief of Civil Division United States Attorneys Office 157 Church Street, Floor 23 New Haven, CT 06510 Loretta Bonos 594 Bendview Drive Charleston, WV 25314 Jeffrey B. Sienkiewicz, Esq. Sienkiewicz & McKenna, PC 9 South Main Street P.O. Box. 786 New Milford, CT 06776-0786 Michael J. Burns, Esq. Law Offices of Attorney Michael J. Burns 57 Pratt Street Hartford, CT 06103 Jerry C. Straus, Esq. Hobbs, Straus, Dean & Walker, LLP 2120 L Street NW Washington, D.C. 20037 Perry Zinn Rowthorn, Esq. Assistant Attorney General 55 Elm Street Hartford CT 06141-0120 Richard J. Street, Esq. Carmody & Torrance 50 Leavenworth Street P.O. Box 1110 Waterbury, CT 06721-1110 James R. Fogarty, Esq. Fogarty Cohen Selby & Nemiroff 88 Field Point Road, P.O. Box 2508 Greenwich, CT 06836-2508 Susan Quinn Cobb, Esq. Asst. Attorney General 55 Elm Street Hartford, CT 06141 Thomas A. Gugliotti, Esq. Updike, Kelly * Spellacy One State Street Hartford, CT 06123 Scott Keep, Esq. Office of the Solicitor U.S. Department of the Interior 1849 C. Street, NW Mailstop 6456 Washington, D.C. 20240 Francis J. Collins, Esq. Tom Beecher, Esq. Collins Hannafin Garamella, et al. 148 Deer Hill Avenue P.O. Box 440 Danbury, CT 06810-0440 Ryan E. Bull, Esq. Baker Botts, LLP The Warner Building 1299 Pennsylvania Ave. NW Washington, DC 20004

/s/ David J. Elliott David J. Elliott (ct04301)

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