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

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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. UNITED STATES OF AMERICA AND THE CONNECTICUT LIGHT AND POWER COMPANY. DEFENDANTS. : : : : : : : CIVIL NO. 3:00CV00820(PCD) : : : : UNITED STATES OF AMERICA,

MEMORANDUM IN RESPONSE TO THE MOTION TO AMEND THE SCHEDULING ORDER TO ALLOW THE SUBMISSION OF NEW EVIDENCE The United States, a party in each of the above three

captioned actions, hereby responds to the motion to amend the

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scheduling order to allow the submission of new evidence filed by the defendants Kent School Corporation, Inc. (Kent School), the Town of Kent, the Connecticut Light and Power Company, and the amicus State of Connecticut. In that motion the defendants move to amend the scheduling order of May 8, 2001, as amended, to allow the submission of new evidence relating to membership lists which were submitted to the Bureau of Indian Affairs (BIA) by the Schaghticoke Tribal Nation (STN) at the end of its reply period on September 29, 2003. In the motion the defendants correctly note that in a letter dated October 21, 2003 Attorney Barbara Coen of the Office of the Solicitor of the Department of the Interior rejected the submission of the evidence being presented by the defendants as untimely under the scheduling order. Attorney Coen also indicated that the

defendants' submission would be retained in the Office of the Solicitor and would only be reviewed by the Office of Federal Acknowledgment (OFA) if the court amended the scheduling order for this purpose. A copy of the letter is attached as Exhibit 3 to the

defendants' motion. The United States takes no position on the merits of the underlying evidence submitted by the Schaghticoke Tribal Nation or the new information sought to be submitted by the defendants. That is a matter for consideration by the OFA once it has been accepted for inclusion in the FAIR database. However, the United

States does reiterate its position that the information to be

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submitted by the defendants cannot be made part of the record since it was presented after the date of the deadline established by the court order agreed to by all parties. The question for

consideration by the court is whether the defendants have met the requirements of paragraph (f) of the scheduling order which allows parties and the amici to request an extension of the comment period for good cause shown. The concern of the Office of Federal

Acknowledgment which is required to issue a final decision no later then four months from the end of the STN reply period on September 29, 2003 is that any additional materials to be submitted by the defendants or any further reply by the STN may impact that four month schedule. Depending on the size and volume of the materials

submitted the United States reserves the opportunity to request an extension, if necessary. can be quickly If the materials submitted on this issue into the FAIR database and not

incorporated

otherwise delay the preparation of the final decision, no further extension will be required. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY

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

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CERTIFICATION This is to certify that a copy of the within and foregoing Memorandum in Response to the Motion to Amend the Scheduling Order to Allow Submission of New Evidence was mailed, postage prepaid, this day of November, 2003 to: Jerry Strauss, Esq. Hobbs, Strauss, Dean & Walker 2120 L Street, NW Washington, D.C. 20037 Thomas W. Van Lenten, Esq. Pinney, Payne, Van Lenten, Burrell, Wolfe & Dillman, P.C. 83 Wooster Heights P.O. Box 3499 Danbury, CT 06810-3499 Mark Kohler, Esq. Sue Quinn Cobb, Esq. Office of the Attorney General 55 Elm Street Hartford, CT 06776 David Elliott, Esq. Day, Berry & Howard CityPlace I Hartford, CT 06103-3499 Thomas A. Gugliotti, Esq. Updike, Kelly & Spellacy One State Street Hartford, CT 06123 Eric Watt Wiechmann, Esq. McCarter English Attorneys At Law CityPlace I 185 Asylum Street Hartford, CT 06103 Richard L. Street, Esq. Carmody & Torrance 50 Leavenworth Street P.O. Box 1110 Waterbury, CT 06721-1110 James Fogarty, Esq. Fogarty, Cohen, Selby & Nemiroff, LLC 88 Field Point Rd. P.O. Box 2508 Greenwich, CT 06830 Jeffrey Sienkiewicz, Esq. Sienkiewicz & McKenna P.O. Box 786 New Milford, CT 06776 Judith Shapiro, Esq. 6856 Eastern Avenue NW Suite 206 Washington, D.C. 20021 Michael J. Burns, Esq. Law Offices of Attorney Michael J. Burns 57 Pratt Street Hartford, CT 06103 Loretta Bonos 594 Bendview Drive Charleston, WV 25314

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Robert A. Slavitt, Esq. Slavitt, Connery, & Vardamis 618 West Avenue Norwalk, CT 06850

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

cc: 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 Blvd. Martinsburg, WV 25401 Scott Keep, Esq. Barbara Coen, Esq. Office of the Solicitor Branch of Tribal Government & Alaska Division of Indian Affairs Mail Stop 6456 (MIB) U.S. Department of Interior 1849 C Street, NW Washington, D.C. 20240

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