Schaghticoke Tribal Nation v. Kempthorne ( 2009 )

08-4735-cv
Schaghticoke Tribal Nation v. Kempthorne
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2009
(Argued: October 8, 2009 Decided: October 19, 2009
Amended: November 4, 2009)
Docket No. 08-4735-cv
SCHAGHTICOKE TRIBAL NATION ,
Petitioner-Appellant,
v.
DIRK KEMPTHORNE , Secretary, Department of the Interior, JAMES E. CASON , Associate Deputy
Secretary, Department of the Interior, U.S. DEPARTMENT OF THE INTERIOR , BUREAU OF INDIAN
AFFAIRS, OFFICE OF FEDERAL ACKNOWLEDGMENT, and INTERIOR BOARD OF INDIAN APPEALS,
Respondents-Appellees,
THE KENT SCHOOL CORPORATION , STATE OF CONNECTICUT, TOWN OF KENT, and THE
CONNECTICUT LIGHT AND POWER COMPANY ,
Intervenors-Respondents-Appellees.*
Before: MINER and CABRANES, Circuit Judges, and KORMAN , District Judge.**
Appeal from a judgment of the United States District Court for the District of Connecticut
(Peter C. Dorsey, Judge). Petitioner-appellant Schaghticoke Tribal Nation brought a petition under
the Administrative Procedure Act, 5 U.S.C. § 702, challenging the Department of the Interior’s
*
The Clerk of Court is directed to amend the official caption in this case to conform to the
listing of the parties above.
**
The Honorable Edward R. Korman, of the United States District Court for the Eastern
District of New York, sitting by designation.
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determination not to “acknowledg[e]” the “tribal existence” of the Schaghticoke Tribal Nation
pursuant to 25 C.F.R. § 83.2. We affirm the District Court’s grant of summary judgment to
respondents-appellees and intervenor-appellees on the grounds that (1) the evidence presented by
the Schaghticoke was insufficient to raise a claim of “improper political influence” under the
standard set forth in Town of Orangetown v. Ruckelshaus, 740 F.2d 185, 188 (2d Cir. 1984), and (2) the
Department of the Interior’s determination did not violate the Vacancies Reform Act, 5 U.S.C.
§§ 3345-49d.
Affirmed.
RICHARD EMANUEL, Branford, CT (David K. Jaffe, Brown
Paindiris & Scott, P.C., Hartford, CT, on the brief), for
petitioner-appellant.
JOHN B. HUGHES, Assistant United States Attorney, District
of Connecticut (Nora R. Dannehy, Acting United
States Attorney, District of Connecticut, and William
J. Nardini, Assistant United States Attorney, on the
brief), for defendants-appellees.
MARK F. KOHLER, Assistant Attorney General (Richard
Blumenthal, Attorney General, and Susan Quinn
Cobb and Robert J. Deichert, Assistant Attorneys
General, on the brief), Office of the Attorney General,
Hartford, CT, for intervenors-respondents-appellees.
PER CURIAM :
Petitioner-appellant Schaghticoke Tribal Nation (the “Schaghticoke”) appeals from an
August 27, 2008 judgment of the United States District Court for the District of Connecticut (Peter
C. Dorsey, Judge) entered after the District Court granted summary judgment to respondents and
intervenor-respondents. Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389 (D. Conn.
2008).
In 2005, James E. Cason, Associate Deputy Secretary of the Department of the Interior,
issued a Reconsidered Final Determination that declined to “acknowledg[e]” the “tribal existence”
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of the Schaghticoke. See 25 C.F.R. § 83.2. The Schaghticoke brought this petition to challenge the
Reconsidered Final Determination under the Administrative Procedure Act, 5 U.S.C. § 702. The
parties cross-moved for summary judgment, and the District Court concluded that the Reconsidered
Final Determination was not arbitrary or capricious under 5 U.S.C. § 706. Schaghticoke, 587 F. Supp.
2d at 412-18. The District Court also rejected the Schaghticoke’s contentions that the Reconsidered
Final Determination was “the product of undue influence exerted by state and congressional
political forces” and had been issued in violation of the Vacancies Reform Act, 5 U.S.C. §§ 3345-
49d. Schaghticoke, 587 F. Supp. 2d at 402, 409-12, 418-21. The District Court therefore granted
summary judgment to respondents and intervenor-respondents.
On appeal, the Schaghticoke have abandoned their claim that the Reconsidered Final
Determination was arbitrary or capricious. Instead, the Schaghticoke argue only that the
Reconsidered Final Determination was the product of improper political influence and was issued in
violation of the Vacancies Reform Act. Reviewing the District Court’s grant of summary judgment
de novo, see, e.g., Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir. 2009), we affirm.
I. Improper Political Influence
Although Connecticut political figures showed keen interest in whether the Department of
the Interior acknowledged the Schaghticoke, the evidence submitted by the Schaghticoke cannot
support a claim of improper political influence. “To support a claim of improper political influence
on a federal administrative agency, there must be some showing that the political pressure was
intended to and did cause the agency’s action to be influenced by factors not relevant under the
controlling statute.” Town of Orangetown v. Ruckelshaus, 740 F.2d 185, 188 (2d Cir. 1984); accord
Chemung County v. Dole, 804 F.2d 216, 222 (2d Cir. 1986).
Here, elected officials in Connecticut—including the state’s Governor and Attorney General
and members of the state’s congressional delegation—met with and sent letters and emails to the
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Secretary of the Interior and other Interior Department officials expressing an adamant opposition
to the Interior Department’s potential acknowledgment of the Schaghticoke. Schaghticoke, 587 F.
Supp. 2d at 402-05. In addition, House and Senate subcommittees held hearings at which members
of Congress strongly criticized an interim decision by the Interior Department that favored
acknowledgment, and a bill was introduced in the House titled the “Schaghticoke Acknowledgment
Repeal Act.” Id. at 405-07.
Significantly, however, Interior Department officials uniformly testified in depositions that
they were not influenced by the political clamor surrounding the Schaghticoke. Id. at 404-05, 411.
Any political pressure, moreover, was exerted upon senior Interior Department officials; there is no
evidence that any of the pressure was exerted upon Cason, who was the official ultimately
responsible for issuing the Reconsidered Final Determination. See id. at 407, 411. As a result, even
if the Connecticut elected officials “intended to” influence the Reconsidered Final Determination,
there is no evidence that they “did cause the agency’s action to be influenced by factors not relevant
under the controlling statute.” Orangetown, 740 F.2d at 188 (emphasis added). We therefore affirm
the District Court’s conclusion that the Schaghticoke’s evidence did not support a claim of improper
political influence.1
II. Vacancies Reform Act
We also affirm the District Court’s conclusion that the Reconsidered Final Determination
did not violate the Vacancies Reform Act, 5 U.S.C. §§ 3345-49d. Interior Department regulations
provide that Indian acknowledgment decisions are to be made by “the Assistant Secretary–Indian
Affairs, or that officer’s authorized representative.” See 25 C.F.R. § 83.1 (defining the term
“Assistant Secretary” to include “the Assistant Secretary–Indian Affairs, or that officer’s authorized
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Our standard for a claim of “improper political influence” is clear, see Orangetown, 740 F.2d
at 188; Chemung County, 804 F.2d at 222, and we reject the Schaghticoke’s argument that we should
apply a broader “appearance of bias” standard in this action.
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representative”); id. § 83.10(l)(2) (providing that the “Assistant Secretary shall make a final
determination regarding the petitioner’s status”). In February 2005, the Assistant Secretary–Indian
Affairs resigned. Ordinarily, when an “officer” such as the Assistant Secretary resigns, his or her
duties are assumed by “the first assistant to the office,” which in this case was the Principal Deputy
Assistant Secretary–Indian Affairs. See 5 U.S.C. § 3345(a)(1). In February 2005, however, the
Principal Deputy position was vacant, and thus the Secretary of the Interior delegated to Cason, the
Associate Deputy Secretary, the Indian acknowledgment duties of the Assistant Secretary–Indian
Affairs. It was in that capacity that Cason issued the Reconsidered Final Determination declining to
acknowledge the Schaghticoke.
The Schaghticoke claim that the Final Reconsidered Determination was invalid because
Cason was barred by statute from performing the duties of the Assistant Secretary–Indian Affairs.
When an officer resigns and the “first assistant” position is vacant, the Vacancies Reform Act
provides that “only the head of [the] Executive agency may perform any function or duty,” id.§ 3348(b)(2), “required by statute,” id. § 3348(a)(2)(A)(ii), “or . . . regulation to be performed by the
[resigning] officer,” id. § 3348(a)(2)(B)(i)(II); see also id. § 3348(d)(1) (providing that any action taken
in violation of the Vacancies Reform Act “shall have no force or effect”). According to the
Schaghticoke, therefore, only the Secretary of the Interior was authorized by the Vacancies Reform
Act to make Indian acknowledgment determinations until a new Assistant Secretary–Indian Affairs
took office.
The Schaghticoke’s argument fails because Indian acknowledgment decisions may be made
either by the “Assistant Secretary–Indian Affairs” or by his or her “authorized representative.” 25
C.F.R. §§ 83.1, 83.10(l)(2). Just as an Assistant Secretary, in the ordinary course, may name an
“authorized representative” to make Indian acknowledgment decisions, the Secretary of the Interior
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in February 2005, performing the Assistant Secretary’s duties, simply named an “authorized
representative”—Cason—to decide whether to acknowledge the Schaghticoke.
Put differently, the Vacancies Reform Act mandated that the Secretary of the Interior
perform only those functions or duties of the Assistant Secretary that were “required by statute,” 5
U.S.C. § 3348(a)(2)(A)(ii), “or . . . regulation to be performed by the [Assistant Secretary],” id.§ 3348(a)(2)(B)(i)(II). Indian acknowledgment decisions did not fall within that category because
they could be made either by the Assistant Secretary or by his or her “authorized representative.” 25
C.F.R. §§ 83.1, 83.10(l)(2). Thus, the Vacancies Reform Act did not prohibit the Secretary of the
Interior from designating Cason as the “authorized representative” in charge of Indian
acknowledgment.
Accordingly, we affirm the District Court’s conclusion that the Reconsidered Final
Determination did not violate the Vacancies Reform Act.
CONCLUSION
For the reasons stated above, the August 27, 2008 judgment of the District Court is
AFFIRMED.
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