Kent Inland Wetland Commission v. Michael Rost et al. (2010)

MEMORANDUM OF DECISION

The two defendants have each filed motions to dismiss (# 102) and (# 103) the complaint.   For the reasons given, the motions must be denied.

On February 22, 2010, the plaintiffs, the Kent inland wetlands commission (the commission) and the Kent land use administrator, Jennifer Calhoun, filed a two-count complaint against the defendants, Michael Rost, also known as Michael J. Rost (Rost), and Gail Harrison Donovan (Donovan), also known as Gail S. Harrison.   In count one of its complaint, the plaintiffs allege the following facts.¹  Beginning in September 2008, Rost, acting under the direction of Donovan, began certain construction activity, including the removal of earth and forestry products, on land owned by the state of Connecticut known as the Schaghticoke Indian reservation and on land owned by the Kent School Corporation, Inc. (the school).   The construction activity consisted of “regulated activity” within the meaning of the Kent inland wetlands regulations, which are promulgated pursuant to General Statutes §§ 22a-36 through 22a-45a, the Inland Wetlands and Watercourses Act. The defendants did not seek or obtain a permit before commencing such activity, nor did the defendants seek a determination as to whether such a permit was required.   Moreover, the defendants did not obtain permission from the school before conducting such activity on its land.   As a result, the school has been required to submit a restoration and mitigation plan to the plaintiffs to cure the activity taken on its land by the defendants.   The plaintiffs further allege that the defendants threaten future violations of the inland wetlands regulations and that they, along with the school, have suffered harm as a result of the defendants' illegal activity, for which they did not obtain a permit.

In count two, the plaintiffs allege that it issued a cease and desist order to be served on the defendants on April 30, 2009.   The order explained the alleged violation and ordered the defendants to appear at a hearing before the commission to show cause as to why the cease and desist order should not remain in effect.   At a May 4, 2009 hearing, the commission upheld the cease and desist order.   Despite this, the defendants continued their activity until approximately May 30, 2009.   Neither defendant has taken any action to cure or abate the violations, and they threaten future violations, for which the plaintiffs have suffered harm.   The plaintiffs pray the court for:  1) a mandatory injunction requiring the defendants to submit a restoration and mitigation plan to fix the damage already done;  2) a mandatory injunction requiring the defendants to reimburse the school for the expenses it incurred through mitigation and restoration;  3) temporary and permanent injunctions restraining the defendants from further inland wetlands violations;  4) civil penalties, damages and attorneys fees under General Statutes § 22a-44(b);  and 5) and any other just relief.

On April 6, 2010, Donovan filed a motion to dismiss, and on the same day, Rost also filed a motion to dismiss.   On May 21, 2010, the plaintiffs filed a memorandum in opposition to both motions to dismiss, and on May 25, 2010, the plaintiffs filed a supplemental memorandum of law.   This matter was heard at the short calendar on July 12, 2010.

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).  “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”  (Internal quotation marks omitted.)   Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   (Internal quotation marks omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

In Donovan's motion to dismiss, she alleges that the land in question is located on the reservation of the Schaghticoke tribe that the tribe is a sovereign one with its own government and constitution.   As a result, Donovan argues that the tribe does not have to get permits through the town for excavation, no town laws apply to the tribe under General Statutes §§ 47-61, 47-64 and 47-65, the tribe is exempt from suit and not part of the town of Kent and, as a member of the tribe, Donovan is immune from suit.   Donovan asserts that the land in question was tribal land that has been maintained and used by her exclusively for thirty-two years.   During that time, she put up a fence and a parking lot.   Moreover, Donovan argues that no permits are required to build or cut trees on the tribal land and that the land used by the school is also tribal land.   Donovan attaches Eastlander Group, LLC v. Severin Hills, LLC, Superior Court, judicial district of Tolland, Docket No. X06 CV 04 4403573 (May 10, 2005, Alander, J.) (39 Conn. L. Rptr. 304), to her motion, as well as an unauthenticated, August 6, 2009 letter from Edward W. Gasser to Attorney Joseph L. Hammer regarding a proposed retraining order between the tribe and the school.

In Rost's motion to dismiss, which was filed on the same day as Donovan's motion, he alleges that he is an agent of the tribe and that his actions were carried out on behalf of the tribe.   As a result, he alleges that he is immune from suit.   Moreover, Rost alleges that the plaintiffs have no jurisdiction over the tribe pursuant to General Statutes § 47-65b.   Furthermore, Rost argues that “regulated activity,” as defined in the commission's regulations, has not occurred on the tribe's lands and no permit was required for the work.   In support of his motion, Rost attaches:  (1) Eastlander Group, LLC v. Severin Hills, LLC, supra, Superior Court, Docket No. X06 CV 04 4403573 (39 Conn. L. Rptr. 304);  (2) several pages from a book entitled “Indian Treatises 1778-1883”;  (3) an unauthenticated document dated March 27, 2008, in which the tribe chairman, Donovan, appoints Rost as the chief operating officer of the Schaghticoke Indian Tribe;  (4) an unauthenticated, September 25, 1985 letter from Ed Sarabia, Indian affairs coordinator, to Richard Velky of Milford, Connecticut;  (5) an unauthenticated letter dated October 30, 2008, from John Phillips of Borghesi Building & Engineering Co., Inc. to Donovan, in which he states that a DEP permit is not required for site work that she recently completed on the reservation, which included improving a road through stump and stone removal and grading;  (6) a 1975 decision from the Ninth Circuit Court of Appeals;  and (7) several sections of the General Statutes.

On May 21, 2010, the plaintiffs filed a memorandum in opposition to both motions to dismiss.   In its memorandum, the plaintiffs assert that the broad purpose behind the Inland Wetlands and Watercourses Act (the act) is to allow municipalities to regulate wetlands and water courses within municipal territorial limits.   The plaintiffs argue that even state agencies are not exempt from compliance with the act, and that the defendants are “persons” within the meaning of General Statutes § 22a-38(2).   As a result, the plaintiffs argue, the defendants are required by General Statutes § 22a-42a(c) to obtain permits prior to conducting any regulated activity affecting inland wetlands and watercourses.   As to Rost's motion to dismiss, the plaintiffs argue that he has offered no documentation to support his claim that the tribal council authorized his appointment as the group's agent or authorized the actual work that gives rise to the present complaint.   Additionally, the plaintiffs argue that Rost offers no documentation to show that Donovan had the authority to appoint him as operating officer of the tribe.

Regardless, the plaintiffs argue that Rost and Donovan's reliance on Eastlander Group, LLC v. Severin Hills, LLC, supra, Superior Court, Docket No. X06 CV 04 4403573, is misplaced because that decision stated that the Schaghticoke Tribal Nation is immune from suit, not the Schaghticoke Indian Tribe, which are distinct factions.   Regardless of whether the defendants are part of the Schaghticoke Indians, the Schaghticoke Indian Tribe or the Schaghticoke Tribal Nation, the plaintiffs argue, title to the reservation is vested in the state of Connecticut.   The plaintiffs assert that compliance with the act does not interfere with tribal sovereignty, and the defendants do not argue as much.   Rather, they only argue that they are immune from suit.   Additionally, the plaintiffs argue that § 47-60(b) does not provide a tribe with greater rights of ownership than private landowners in the state, who are required to comply with the act.   Finally, the plaintiffs argue that the rights incident to land ownership in Connecticut are not unlimited and are subject to reasonable regulation.   The plaintiffs submit various documents in support of their objection.

There are “two independent but related barriers to the assertion of state regulatory authority over tribal reservations and members.”  (Internal quotation marks omitted.)  Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612, 617, 587 A.2d 139 (1991).   The first barrier is federal preemption, and the second barrier is if the state's enactment “unlawfully infringes on the right of Indians to make their own laws and be ruled by them.”  (Internal quotation marks omitted.)  Id., 617-18.   The latter barrier implicates tribal sovereignty.  Id. In the present matter, the defendants do not argue that federal preemption bars the plaintiffs' action.   Rather, they focus on tribal sovereign immunity.

Connecticut law recognizes the Schaghticoke as an indigenous, self-governing tribe that possesses powers over its members and reservation.  General Statutes § 47-59a(b).  In the present matter, both defendants assert tribal sovereign immunity even though they are named as individuals and their alleged tribe, the Schaghticoke Indian Tribe, is not named in the action.  “Several cases have established that tribal sovereign immunity does not extend to individual members of a tribe and that the tribe itself must assert immunity.   A state court does have the authority to adjudicate actions against tribal members when it properly obtains personal jurisdiction ․ The doctrine of tribal immunity [however] extends to individual tribal officials acting in their representative capacity and within the scope of their authority ․ The doctrine does not extend to tribal officials when acting outside their authority in violation of state law.”  (Citations omitted;  internal quotation marks omitted.)  Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51 n.7, 794 A.2d 498 (2002).

Although the plaintiffs dispute the existence of any documentation to prove that Rost was acting in a representative capacity on behalf of the tribe and whether Donovan had the authority to grant Rost power to conduct the alleged activity, the plaintiffs primarily focus on whether tribal sovereign immunity prohibits the application of the inland wetlands laws, not on whether the individual defendants have the authority to assert tribal sovereign immunity.   Moreover, Rost submits documentation, despite being unauthenticated, which suggests that Rost and Donovan may have been acting within representative capacities when the alleged conduct took place.   For this reason, the court concludes that the defendants' assertion of tribal sovereign immunity as to their individual roles was appropriate here.   Whether tribal sovereign immunity bars the state from exercising its authority in the present situation is a separate matter, however.

“An Indian reservation, while semi-independent, is not a separate state.   See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143;  100 S.Ct. 2578 [65 L.Ed.2d 665] (1962).   An Indian reservation is considered part of the territory of the state.  Organized Village of Kake v. Egan, 369 U.S. 60, 72, 82 S.Ct. 562, 7 L.Ed.2d 583 (1962).   Typically, state laws have applicability within an Indian reservation unless such laws interfere with tribal self-government or would damage a right under federal law.   See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267 [36 L.Ed.2d 114] (1973).”  (Internal quotation marks omitted.)   Horn v. Lewis Equipment Co., Superior Court, judicial district of Middlesex, Docket No. X04 CV 03 0104509 (September 3, 2004, Quinn, J.) (37 Conn. L. Rptr. 783, 784).

In fact, the United States Supreme Court has stated:  “Our cases make clear that the Indians' right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation.   State sovereignty does not end at a reservation's border.   Though tribes are often referred to as sovereign entities, it was long ago that the Court departed from Chief Justice Marshall's view that the laws of [a State] can have no force within reservation boundaries ․ Ordinarily, it is now clear, an Indian reservation is considered part of the territory of the State ․

“That is not to say that States may exert the same degree of regulatory authority within a reservation as they do without.   To the contrary, the principle that Indians have the right to make their own laws and be governed by them requires an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other ․ When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest ․ When, however, state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land ․” (Citations omitted;  internal quotation marks omitted.)  Nevada v. Hicks, 533 U.S. 353, 361-62, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001).

Both the Inland Wetlands and Watercourses Act and the statutes governing Indians are implicated in the present matter.  General Statutes § 22a-36 sets out the purpose of the Inland Wetlands and Watercourses Act (the act) and provides in relevant part:  “The inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed ․ The preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state.   It is, therefore, the purpose of sections 22a-36 to 22a-45 to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourse by minimizing their disturbance and pollution ․” A “person” is defined in General Statutes § 22a-38(2) of the act as “any person, firm, partnership, association, corporation, limited liability company, company, organization or legal entity of any kind, including municipal corporations, governmental agencies or subdivisions thereof,” and “regulated activity” is defined in § 22a-38(13) as “any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses, but shall not include the specified activities in section 22a-40.”

General Statutes § 22a-42 provides authority to municipalities to regulate wetlands and watercourses.   Additionally, General Statutes § 22a-42a governs permits and provides in relevant part in subsection (c)(1):  “On and after the effective date of the municipal regulations promulgated pursuant to section (b) of this section, no regulated activity shall be conducted upon any inland wetland or watercourse without a permit.   Any person proposing to conduct or cause to be conducted a regulated activity upon an inland wetland or watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland or watercourse in question is located ․”

As to the statutes governing Indians, General Statutes § 47-59a provides:  “(a) It is hereby declared the policy of the state of Connecticut to recognize that all resident Indians of qualified Connecticut tribes are considered to be full citizens of the state and they are hereby granted all the rights and privileges afforded by law, that all of Connecticut's citizens enjoy.   It is further recognized that said Indians have certain special rights to tribal lands as may have been set forth by treaty or other agreements. (b) The state of Connecticut further recognizes that the indigenous tribes, the Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot, the Mohegan and the Golden Hill Paugussett are self-governing entities possessing powers and duties over tribal members and reservations.   Such powers and duties include the power to:  (1) Determine tribal membership and residency on reservation land;  (2) determine the tribal form of government;  (3) regulate trade and commerce on the reservation;  (4) make contracts, and (5) determine tribal leadership in accordance with tribal practice and usage.”  (Emphasis added.)

General Statutes § 47-60(b) provides:  “A tribe shall exercise on reservation land all rights incident to ownership except the power of alienation.”  General Statutes § 47-63 provides in relevant part:  “The following terms as used in this chapter, shall have the following meanings:  ‘Indian’ means a person who is a member of any of the following tribes, Paucatuck Eastern Pequot, Mashantucket Pequot, Schaghticoke, Golden Hill Paugussett and Mohegan;  ‘reservation’ means ․ the Schaghticoke reservation in the town of Kent, assigned to the Schaghticoke tribe ․” (Emphasis added.)   Finally, General Statutes § 47-65(a) provides in relevant part:  “The Commissioner of Environmental Protection with the advice of the Indian Affairs Council shall have the care and management of reservation lands.”

Under the applicable case law and statutes, the court cannot conclude that the defendants are immune from the state's regulatory authority with regard to the state's inland wetlands laws.   There is nothing to indicate that compliance with the inland wetlands regulations would interfere with tribal self-government.   Moreover, the applicable inland and wetlands laws define “person” very broadly, and the state's interest in the land is extensive, particularly given the commissioner of environmental protection's authority over the care and management of the reservation land and the broad purpose of the Inland Wetlands and Watercourses Act. Even if all of the alleged activity took place on reservation land, there is no doubt that such activity may have an environmental impact on land beyond the reservation.   For all of these reasons, the court concludes that tribal sovereign immunity does not deprive the court of jurisdiction in the present matter, and both Donovan and Rost's motions to dismiss are denied.

For all of the foregoing reasons, the defendants' motions to dismiss are denied because the court has jurisdiction over the present matter.

BY ORDER OF THE COURT,

John W. Pickard

FOOTNOTES

FN1. On May 11, 2010, the Connecticut Commissioner of Environmental Protection, Amey Marrella, filed a motion to intervene as a party plaintiff, which the court granted on June 1, 2010.   For the purposes of this memorandum, the court's reference to the “plaintiffs” only includes the commission and Calhoun..  FN1. On May 11, 2010, the Connecticut Commissioner of Environmental Protection, Amey Marrella, filed a motion to intervene as a party plaintiff, which the court granted on June 1, 2010.   For the purposes of this memorandum, the court's reference to the “plaintiffs” only includes the commission and Calhoun.

Pickard, John W., J.