Free Motion to Amend/Correct - District Court of Connecticut - Connecticut

Case 3:00-cv-00820-PCD

Document 65

Filed 02/27/2004

Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA, : : PLAINTIFF, : : V. : : 43.47 ACRES OF LAND, MORE OR LESS,: CIVIL NO. H-85-1078(PCD) SITUATED IN THE COUNTY OF : LITCHFIELD, TOWN OF KENT, ET AL., : : DEFENDANTS. : ******** : SCHAGHTICOKE TRIBAL NATION, : : PLAINTIFF, : : V. : : KENT SCHOOL, : CIVIL NO. 3:98CV01113(PCD) : DEFENDANTS. : ********* SCHAGHTICOKE TRIBAL NATION, PLAINTIFF, V. CONNECTICUT LIGHT & POWER, DEFENDANTS. : : : : : : : CIVIL NO. 3:00CV00820(PCD) : :

REPORT AND JOINT MOTION ON CONSENT TO AMEND SCHEDULING ORDER The United States Attorney hereby notifies the Court that in accordance with ¶ (h) of the Stipulated Scheduling Order of May 9, 2001, as later amended, the Department of the Interior issued its final determination on the petition of the Schaghticoke Tribal Nation on January 29, 2004. In accordance with ¶ (h), the decision

Case 3:00-cv-00820-PCD

Document 65

Filed 02/27/2004

Page 2 of 10

was served on the parties, amici and other interested parties on February 2, 2004. Notice of the decision was published in the

Federal Register on February 5, 2004. The parties in the three above-captioned cases hereby report to the Court through the U.S. Attorney on the negotiations pursuant to ¶ (j) of the Stipulated Scheduling Order. As provided in ¶ (j)

of the Scheduling Order the parties and amici engaged in further negotiation of the question of whether, for purposes of this case, independent review and reconsideration before the Interior Board of Indian Appeals (IBIA) pursuant to 25 C.F.R. § 83.11 is to be made, or shall be part of a petition for review filed in the District Court under the Administrative Procedure Act (APA). The result of

the negotiations is that the review procedures of 25 C.F.R. § 83.11 will be available and any additional review under the APA in District Court will be filed only at the conclusion of the

administrative proceedings when there is a final effective agency decision. The U.S. Attorney has been authorized by the parties to request that the Court grant, without further response, this joint motion to amend the provisions of ¶ (k) of the Stipulated

Scheduling Order, to read as follows:

(k) Any request for judicial review of the final decision under the Administrative Procedure Act by any party or amici to these cases shall be filed within 90 days of its effective date and shall be filed in this court as a case related to the above-captioned cases.

2

Case 3:00-cv-00820-PCD

Document 65

Filed 02/27/2004

Page 3 of 10

The requested amendment to paragraph (k) is intended to clarify that an action seeking APA review in District Court must be filed within 90 days of the effective date of the "final decision," the final agency action on the petition for acknowledgment. As

presently worded ¶ (k) requires filing an APA action within 90 days of the date that notice of the "final determination" was served, which does not accommodate the IBIA process. The proposed amended ¶ (k) relies on the regulations to define "effective date,"and precludes the possibility of an APA action before the administrative process is complete. If amended,

paragraph (k) will provide a deadline for an APA review in District Court irrespective of whether a request for reconsideration is made to the IBIA. final Keying the time frame to the "effective date" of the allows for a flexible deadline applicable

decision

irrespective of whether an IBIA appeal is filed and irrespective of the nature of the reconsidered decision, if any, which is made under the regulations. (h)(2) and (h)(3). Thus, if paragraph (k) is amended by the Court, the following benchmarks will apply: 1. If no request for reconsideration before the IBIA is filed, the APA review must be filed on August 3, 2004, 90 days from the effective date of May 5, 2004. 2. If a request for reconsideration before IBIA is filed, the APA review must be filed 90 days from the effective date of the final decision as determined by the regulations, 25 C.F.R. Part 83. 3 See 25 C.F.R. § 83.11(a)(2), (h)(1),

Case 3:00-cv-00820-PCD

Document 65

Filed 02/27/2004

Page 4 of 10

During the negotiations regarding the nature and timing of the appeals to be taken from the final determination, the parties also discussed possible ways in which to expedite the IBIA process. The parties and amici have agreed to the following procedures: 1. Parties and amici contemplating the filing of requests for reconsideration shall attempt, in good faith, to consolidate their respective duplication. 2. All references to documents that are indexed in the FAIR grounds for reconsideration, so as to minimize

database shall be referenced by their "Short Cite" or "Image File ID," or both, in FAIR, to the extent practicable. 3. A copy of this Report and Joint Motion On Consent to Amend

Scheduling Order should accompany any request for reconsideration filed with IBIA concerning the final determination on the STN petition. 4. Any request for reconsideration before the IBIA will state that it was served on the designated

affirmatively

representative reflected in the attached copy of the "List of Interested Parties as of January 30, 2004" prepared by the Office of Federal Acknowledgment, the Assistant Secretary-Indian Affairs (attention: Office of Federal Acknowledgment) and the Office of the Solicitor (attention: Scott Keep and Barbara Coen).

4

Case 3:00-cv-00820-PCD

Document 65

Filed 02/27/2004

Page 5 of 10

Respectfully submitted, JOHN H. DURHAM ACTING UNITED STATES ATTORNEY

JOHN B. HUGHES ASSISTANT U.S. ATTORNEY FED. BAR NO. ct05289 157 CHURCH STREET NEW HAVEN, CT 06510 (203)821-3700

5

Case 3:00-cv-00820-PCD

Document 65

Filed 02/27/2004

Page 6 of 10

CERTIFICATION This is to certify that a copy of the within and foregoing Report and Joint Motion on Consent to Amend Scheduling Order was mailed, postage prepaid, this Eric Watt Wiechmann, Esq. CityPlace I 185 Asylum Street Hartford, CT 06103-3495 Thomas Van Lenten, Esq. Pinney, Payne, Van Lenten, Burrell, Wolfe & Dillman, P.C. 83 Wooster Heights P.O. Box 3499 Danbury, CT 06810-3499 Jeffrey Sienkiewicz, Esq. Sienkiewicz & McKenna P.O. Box 786 New Milford, CT 06776 Thomas A. Gugliotti, Esq. Updike, Kelly & Spellacy, P.C. One State Street P.O. Box 231277 Hartford, CT 06123-1277 Sue Quinn Cobb, Esq. Office of the Attorney General 55 Elm Street Hartford, CT 06776 Richard Street, Esq. Carmody & Torrance 50 Leavenworth Street P.O. Box 1110 Waterbury, CT 06721-1110 Loretta E. Bonos 594 Bendview Drive Charleston, WV 25314-1547 day of February, 2004 to:

6

Case 3:00-cv-00820-PCD

Document 65

Filed 02/27/2004

Page 7 of 10

Robert A. Slavitt, Esq. Slavit, Connery & Vardamis 618 West Avenue Norwalk, CT 06850 David Elliott, Esq. Day, Berry & Howard CityPlace I Hartford, CT 06103-3499 James R. Fogarty, Esq. Fogarty, Cohen, Selby & Nemiroff LLC 88 Field Point Road P.O. Box 2508 Greenwich, CT 06836-2508 Jerry Strauss, Esq. Hobbs, Strauss, Dean & Walker 2120 L Street, NW Washington, DC 20037 Judith Shapiro, Esq. 6856 Eastern Avenue, NW Suite 206 Washington, D.C. 20021 Michael J. Burns, Esq. 57 Pratt Street, Suite 604 Hartford, CT 06103 Scott Keep, Esq. Barbara Coen, Esq. Office of the Solicitor U.S. Department of the Interior 1849 C Street, NW - Mailstop 6456 Washington, D.C. 20240

JOHN B. HUGHES ASSISTANT U.S. ATTORNEY 157 Church Street New Haven, Ct 06508 (203)821-3700

7

Case 3:00-cv-00820-PCD

Document 65

Filed 02/27/2004

Page 8 of 10

cc: James Upton General Litigation Section Environmental & Natural Resources Division United States Department of Justice P.O. Box 663 Washington, DC 20004-0663 Donald King, Chief National Parks Service Land Acquisition Division Department of Interior Appalachian National Scenic Trail Project Office P.O. Box 908 1314 Edwin Miller Boulevard Martinsburg, WV 25401

8

Case 3:00-cv-00820-PCD

Document 65

Filed 02/27/2004

Page 9 of 10

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT : : PLAINTIFF, : : V. : : 43.47 ACRES OF LAND, MORE OR LESS,: CIVIL NO. H-85-1078(PCD) SITUATED IN THE COUNTY OF : LITCHFIELD, TOWN OF KENT, ET AL., : : DEFENDANTS. : ******** : SCHAGHTICOKE TRIBAL NATION, : : PLAINTIFF, : : V. : : KENT SCHOOL, : CIVIL NO. 3:98CV01113(PCD) : DEFENDANTS. : ********* SCHAGHTICOKE TRIBAL NATION, PLAINTIFF, V. CONNECTICUT LIGHT & POWER, DEFENDANTS. : : : : : : : CIVIL NO. 3:00CV00820(PCD) : UNITED STATES OF AMERICA,

[PROPOSED] AMENDED ORDER The Stipulated Scheduling Order entered by the Court on May 9, 2001 is hereby amended to modify paragraph (k) to read as follows:

9

Case 3:00-cv-00820-PCD

Document 65

Filed 02/27/2004

Page 10 of 10

(k) Any request for judicial review of the final decision under the Administrative Procedure Act by any party or amici to these cases shall be filed within 90 days of its effective date and shall be filed in this court as a case related to the above-captioned cases. The balance of the Order, as previously amended, shall remain in effect.

SO ORDERED. Dated at New Haven, Connecticut, February , 2004.

Peter C. Dorsey Senior United States District Judge

10