Schaghticoke Tribal Nation v. Kempthorne

587 F.Supp.2d 389

SCHAGHTICOKE TRIBAL NATION, Petitioner, v. Dirk KEMPTHORNE, Secretary, Department of the Interior, et al., Respondents State of Connecticut, Kent School Corporation, The Connecticut Light and Power Company, and Town of Kent, Intervenor-Respondents.

No. 3:06-cv-00081 (PCD).

United States District Court, D. Connecticut.

August 26, 2008.

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A. Paul Spinella, Law Offices of A. Paul Spinella & Assoc., Hartford, CT, David K. Jaffe, Beown, Paindiris & Scott, Hartford, CT, Eric D. Eberhard, Dorsey & Whitney LLP, Seattle, WA, Glenn M. Salvo, Thomas M. Jancik, Vernle C. (Skip) Durocher, Jr., Dorsey & Whitney, Minneapolis, MN, Judith A. Shapiro, Washington, DC, Steven David Ecker, Thomas J. Murphy, Cowdery, Ecker & Murphy, L.L.C., Hartford, CT, for Petitioner.

John B. Hughes, U.S. Attorney's Office, New Haven, CT, Sara E. Culley, U.S. Department of Justice, Washington, DC, for Respondents.

David J. Elliott, Day Pitney LLP, Susan Quinn Cobb, Mark F. Kohler, Robert J. Deichert, Attorney General's Office, Hartford, CT, Jeffrey B. Sienkiewicz, Sienkiewicz, McKenna & Sienkiewicz, New Milford, CT, James K. Robertson, Jr., Richard L. Street, Carmody & Torrance, Waterbury, CT, for Intervenor-Respondents.

Robin Coggswell, Rex, GA, pro se.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

PETER C. DORSEY, District Judge.

This case concerns the politically loaded question of whether the Schaghticoke Tribal Nation ("STN" or "Petitioner") constitutes an Indian tribe within the meaning of federal law as provided in the federal acknowledgment regulations, 25 C.F.R. Part 83 (1994). On October 11, 2005, Associate Deputy Secretary of the Interior James E. Cason issued a Reconsidered Final Determination (the "RFD") concluding that the STN did not meet the federal acknowledgment requirements. On January 12, 2006, STN filed a petition for review in this Court claiming that the Department of the Interior's RFD was arbitrary and capricious under the Administrative Procedure Act (APA), the result of improper political influence in violation of STN's due process rights, and the product of an ultra vires decision in violation of the Appointments Clause of the United States Constitution and of the Vacancies Reform Act. After conducting extra-record discovery upon permission from the Court, Petitioner filed a motion for summary judgment. Respondents Dirk Kempthorne, Secretary of the Interior; James Cason, Associate Deputy Secretary of the Interior; the United States Department of the Interior (the "Department" or "DOI"); the Bureau of Indian Affairs ("BIA"); the Office of Federal Acknowledgment ("OFA"); and the Interior Board of Indian Appeals ("IBIA") (collectively, the "Federal Respondents") filed a cross-motion for summary judgment. Intervenors the State of Connecticut, Kent School Corporation, The Connecticut Light and Power Company, and the Town of Kent (collectively the "Intervenors" or "Intervenor-Respondents"), who participated as interested parties in the administrative proceedings before the DOI, also filed a cross-motion for summary judgment.¹ Because the Court is able to resolve the pending motions on the papers, Petitioner's request for oral argument is denied. For the reasons stated below, Petitioner's Motion for Summary Judgment [Doc. No. 165] is denied, and Respondents' Cross-Motion for Summary Judgment [Doc. No. 178] and the Intervenor-Respondents' Cross-Motion for Summary Judgment [Doc. No. 174] are granted. Respondents' Motion to Strike [Doc. No. 182] is granted in part and denied in part.

I. MOTION TO STRIKE

Before delving into the merits of the case, the Court must resolve the scope of the record before it. The Respondents and Intervenor-Respondents have moved pursuant to Rule 56(e) to strike 19 documents submitted by Petitioner in support of its motion for summary judgment.² Rule 56(e) provides that on a summary judgment motion, "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e); see also Local R. 56(a)(3). "The principles governing admissibility of evidence do not change on a motion for summary judgment.... Therefore, only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." Merry Charters, LLC v. Town of Stonington, 342 F.Supp.2d 69, 75 (D.Conn.2004) (quoting Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997)). "A motion to strike is the correct vehicle to challenge materials submitted in connection with a summary judgment motion." Newport Elecs., Inc. v. Newport Corp., 157 F.Supp.2d 202, 208 (D.Conn.2001). "[A] motion to strike is appropriate if documents submitted in support of a motion for summary judgment contain inadmissible hearsay or conclusory statements, are incomplete, or have not been properly authenticated." Spector v. Experian Info. Servs. Inc., 321 F.Supp.2d 348, 352 (D.Conn.2004) (citations omitted); see also Hollander v. Am. Cyanamid Co., 999 F.Supp. 252, 255-56 (D.Conn.1998). For the reasons that follow, Respondents' motion to strike is granted in part and denied in part.

The Respondents first move to strike all of the contested documents on the basis that they are outside the administrative record. When reviewing an agency decision pursuant to the Administrative Procedure Act, a court is generally confined to the administrative record compiled by the agency when it made its decision. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419-20, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). However, in some circumstances, as in this case, parties are permitted to conduct discovery beyond the administrative record. See Schaghticoke Tribal Nation v. Norton, No. 3:06-cv-0081 (PCD), 2007 WL 867987, at *5 (D.Conn. March 19, 2007) (citing Sokaogon Chippewa Comm'y (Mole Lake Band of Lake Superior) v. Babbitt, 961 F.Supp. 1276, 1281 (W.D.Wis.1997)). Evidence now presented by Petitioner outside the administrative record but pursuant to this Court's prior discovery rulings may be considered to the extent it satisfies the evidentiary admissibility rules, see Sokaogon, 961 F.Supp. at 1283, especially since Respondents themselves have relied on evidence uncovered through discovery and outside the administrative record. See id. at 1286.

Respondents' motion to strike the declarations of Judith A. Shapiro, Aurene Michelle Martin, William J. Gullotta, and Steven L. Austin is denied. Even if a declaration would not be admissible at trial, a court may consider it on a summary judgment motion if it is based on personal knowledge and sets forth facts to which the declarant could testify at trial and that would be admissible in evidence. Fed. R.Civ.P. 56(e). The declarations challenged by Respondents' motion to strike are all based on personal knowledge and are therefore appropriate for review at this time. Respondents argue that Shapiro's declaration contains information relayed by former Department official Aurene Martin which constitutes inadmissible hearsay. "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. (801)(c). However, under Rule 801(d)(2)(D) of the Federal Rules of Evidence, an out-of-court statement is not hearsay if it is "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Fed.R.Evid. 801(d)(2)(D). The statements by Ms. Martin captured in Attorney Shapiro's declarations were made regarding her employment as Principal Deputy Assistant for Indian Affairs regarding the STN acknowledgment decision, unquestionably matters within the scope of her employment at the Department of the Interior, a party to this case. These statements are therefore admissible as party admissions, even though Ms. Martin was no longer employed as the Principal Deputy Assistant in 2007 when she made these statements to Attorney Shapiro. See Limone v. United States, 497 F.Supp.2d 143, 163 n. 31 (D.Mass.2007) (finding testimony of currently unavailable FBI agents before House Committee on Government Reform admissible as party admissions over government's hearsay objection, even though at time of testimony agents were no longer employed by government); see also In re Jacoby Airplane Crash Litigation, No. 99-6073(HAA), 2007 WL 2746833, at *4-5 (D.N.J. Sept.19, 2007) (collecting cases where out-of-court statements by government employees were admissible against the government).

Despite the assertion in their reply to the contrary, Respondents merely cite a list of contested documents in their motion to strike, failing to specify what about any of the documents renders them inadmissible. Respondents assert that many of the contested documents are inadmissible because they are unauthenticated documents. However, the news and magazine articles submitted by Petitioner (Pet'r's Exs. 17, 79) are self-authenticating under Rule 902(6) of the Federal Rules of Evidence and are therefore admissible. Petitioner's Exhibit 31, the press release issued by Representative Christopher Shays on March 12, 2004, may also be considered self-authenticating. Press releases by government authorities may be self-authenticating under Rule 902(5) as official publications issued by a public authority. Although nothing on the page of the exhibit submitted by Petitioner demonstrates that it was an official document issued by Representative Shays' office, see Sannes v. Jeff Wyler Chevrolet, Inc., No. C-1-97-930, 1999 WL 33313134, at *3 n. 3 (S.D.Ohio March 31, 1999) (holding that Federal Trade Commission press releases "printed from the FTC's government world wide...