--- Am. Tribal Law ----, 2018 WL 3618252 (Mohegan Trial Ct.), 1 M.T.C.R. 155
Mohegan Tribal Trial Court.
John DRABIK and Ancient Highway Towers, LLC
The MOHEGAN TRIBE OF INDIANS OF CONNECTICUT, Mohegan Tribal Council Elaine Thomas and James Quinn
Docket No. CV-16-0105
July 25, 2018

Attorneys and Law Firms
Eric J. Garofano, Esq., New London, CT, for the Plaintiffs
Andrew L. Houlding, Esq., for the Defendants


Before Paul M. Guernsey, Chief Judge



Procedural Status

Following the Courts granting of Defendants’ Motion to Dismiss and/or Strike as to all counts other than Count Four, the Plaintiffs filed a Motion to Reargue and Reconsider Judgment asserting two principal claims: that the Court did not apply the proper standard of review in that it did not consider the Plaintiffs’ allegations in a light most favorable to the Plaintiffs, and that the Court misapprehended the facts in finding that the Tower Construction Notification System Response by the Defendant Elaine Thomas was prepared in anticipation for use in a quasi-judicial proceeding. Plaintiffs further assert that the part played by said Response, as cited in the Connecticut Citing Council (CSC) decision, was surplusage and background information in that the CSC decision involved an application for a different parcel.

After review of Plaintiffs’ motion, the Court without a hearing, determined that the motion to reargue ought to be granted and ordered that the matter be set down for a hearing on the issue of reconsideration. Conn. Prac. Bk. § 11-12(c).



Issues Presented

The Court’s decision addressed by this motion found that the Defendant Thomas’ Response to the TCNS notice was protected by absolute privilege in that it was preliminary to a quasi-judicial proceeding, i.e., a hearing before the CSC. The Court further identified a sound public policy of encouraging Tribal Historic Preservation Officers to speak freely of their opinions as to any religious or cultural significance regarding historic properties. 47 C.F.R. Part 1, App. C(I). That CSC proceedings are quasi-judicial in nature is not challenged by the Plaintiffs, and that had the Defendant Thomas testified before or handed in her Response to the CSC, the same would have been absolutely privileged.1

Plaintiffs are correct in asserting that the CSC hearing in which Officer Thomas’ Response played a part did not seek approval for the specific parcel addressed in the Response.2 This argument raises two distinct but related issues: whether, as Plaintiffs appear to claim, to be entitled to absolute privilege the Response must pertain to the specific parcel that is the subject of a CSC proceeding and, if there is no such requirement, whether the Response constituted “suplusage and background information” in the context of such proceeding and therefore nevertheless should not to be accorded such a privilege. Determination of these issues requires an examination of the role of THPO Officers in Section 106 proceedings in light of the allegations in Plaintiffs’ Second Amended Complaint.



Allegations and Evidence Not in Dispute for Purposes of This Motion

As Plaintiffs assert, in deciding a jurisdictional issue the allegations of their complaint are to be considered in a light most favorable to them. Electrical Contractors, Inc. v. Department of Education, 303 Conn. 402, 35 A.3d 188 (2012). In deciding such issues, the motion admits all well-pleaded facts and the exiting record. Id. In ruling on Defendants’ Motion to Dismiss and/or Strike, the Court considered supplemental material provided by both Plaintiffs and Defendants, all of which was received without objection. Further, at oral argument, it was conceded that Appendix I to Defendants’ motion was in fact the CSC decision on Applicant AT & T’s application. In deciding such a motion to dismiss, the Court may rely on undisputed facts and other types of undisputed evidence. Conboy v. State of Connecticut, 292 Conn. 642, 651, 974 A.2d 669, (2009).

Inasmuch as the Court’s decision at issue was premised on a finding of absolute privilege, Plaintiffs’ allegations regarding the Defendants’ intent and the allegedly false statements contained in Officer Thomas’ Response were not relevant.3 As to the other allegations regarding the context and actions of the parties (other than those regarding Count Four) for purposes of this motion there is no dispute. It is alleged that AT&T4 entered into a lease with the Plaintiffs for a portion of their premises to be used for the construction, operation and maintenance of a cellular communications tower.5 It is further alleged that “AT&T was to submit an application (“Application”) to the Connecticut Siting Council proposing the placement of a new cellular telecommunications tower in East Lyme, Connecticut (“Tower”).”6 Although considering both the Drabik Property and another site, 351-A Boston Post Road, East Lyme, Connecticut, it is alleged that “AT&T determined to construct the proposed tower on the Subject Drabik property and signed a lease for the Subject Drabik Property for the construction of a cellular telecommunications tower.”7

As part of “the Application Process” AT&T utilized the Federal Communications Commission’s Tower Construction Notification System (TCNS) under which the FCC notified, inter alia, Indian tribes, including the Mohegan Tribe, of the pending application8 for purposes of compliance with Section 106 of the National Historic Preservation Act (hereafter the Section 106 process).9 Through the TCNS, Applicant AT&T received Officer Thomas’s Response.10 This concluded that “it is the opinion of the Mohegan THPO that this undertaking would have an adverse effect to properties of traditional religious and cultural significance to the Mohegan Tribe”11 and that “the Mohegan THPO is in support of finding an alternative location for the proposed new telecommunications facility located at Ancient Highway, East Lyme, CT...”12 As a result of this Response, it is alleged that AT&T abandoned the Subject Drabik Property for this project.13 Ultimately, the CSC denied the application for 351-A Boston Post Road and approved it for another parcel, 2 Arbor Crossing, East Lyme, Connecticut.14



The Role of Tribal Historic Preservation Offices in the Section 106 Process

The participants in the Section 106 process are set forth in 36 C.F.R. § 800.2, which provides “[t]he agency official shall involve the consulting parties described in paragraph (c) of this section in findings and determinations made during the section 106 process.” 36 C.F.R. § 800.2(a)(4). These parties are defined as follows:
(c) Consulting parties. The following parties have consultative roles in the section 106 process:
(1) State historic preservation officer...
(2) Indian tribes and Native Hawaiian organizations...
(i) Consultation on tribal lands...
(ii) Consultation on historic properties of significance to Indian tribes and Native Hawaiian organizations. Section 106(d)(6)(B) of the act requires the agency official to consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to historic properties that may be affected by an undertaking. This requirement applies regardless of the location of the historic property. Such Indian tribe or Native Hawaiian organization shall be a consulting party. (Emphasis added).
36 C.F.R. § 800.02(c)15.
It is further recognized that “[c]onsultation with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty” and that “[c]onsultation with an Indian tribe must recognize the government-to-government relationship between the Federal Government and Indian tribes.”16 In addition, federal law provides that “[an] Indian tribe may assume all or any part of the functions of a State Historic Preservation Officer in accordance with sections 302302 and 302303 of this title, with respect to tribal land ...” 54 U.S.C.A. § 302702.

“An Indian Tribe may assume all or part of the SHPO’s functions with regard to Tribal lands, if, among other things, the Tribe designates a Tribal preservation official to administer the program. In such cases, the Tribal Historic Preservation Officer is the official representative for purposes of a § 106 consultation.” Dine Citizens Against Ruining Our Environment, Et Al. v. Jewell, 312 F.Supp.3d 1031, 2018 WL 1940992 (U.S.D. Ct., D. New Mexico, 2018); see also Narragansett Indian Tribe v. Warwick Sewer Authority, 334 F.3d 161 (1st Cir. 2003). The status of the individual Defendants, including Elaine Thomas, is therefore that of a representative of the Mohegan Tribe as consultant in the Section 106 process.




That it was contemplated at all times that AT&T would submit an application to the CSC is made clear by the allegations of paragraph 10-12 of Plaintiffs’ Second Amended Complaint:
10. AT&T was to submit an application (“Application”) to the Connecticut Siting Council proposing the placement of a new cellular telecommunications tower in East Lyme, Connecticut (“Tower”)
11. In the process of preparing the Application, AT&T had evaluated two potential sites in the town of East Lyme, based upon geographic location and topography: the Subject Drabik Property and 351-A Boston Post Road also in East Lyme. AT&T determined to construct the proposed tower on the Subject Drabik Property for the construction of a cellular telecommunications tower.
12. As part of the Application process, AT&T utilized the Federal Communication Commission’s Tower Construction Notification System (“TCNS”), to submit an electronic message to the Federal Communication Commission of AT&T’s proposed tower construction. The Commission subsequently provides this information to Indian Tribes and other historical and cultural organizations that have expressed an interest in the relevant geographic area.

By the allegations of Plaintiffs’ Second Amended Complaint, therefore, the use of the TCNS was part of “the Application Process” on the part of AT&T leading to its application to the CSC. The Officer’s Response, as part of the section 106 process, thus functioned as “preparatory communications that may be directed to the goal of the proceeding,”17 i.e., the CSC application. As described by the Connecticut Supreme Court:
The right of private parties to combine and make presentations to an official meeting and, as a necessary incident thereto, to prepare materials to be presented is a fundamental adjunct to the right of access to judicial and quasi-judicial proceedings. To make such preparations and presentations effective, there must be an open channel of communication between the persons interested and the forum, unchilled by the thought of subsequent judicial action against such participants; provided always, of course, that such preliminary meetings, conduct and activities are directed toward the achievement of the objects of the litigation or other proceedings.” (Internal quotation marks omitted.)
Kelley v. Bonney, 221 Conn. 549, 574, 606 A.2d 693 (1992). That the Response submitted by Officer Thomas was “directed toward the achievement” of a successful application to the CSC is made clear by the significant role it played therein. As described by the CSC in its decision on the AT&T Application:
Applicant initially proposed two potential tower sites in this area but ultimately had to withdraw them from consideration after receiving a significant adverse effect determination from the Mohegan tribe as part of the federally mandated National Environmental Policy Act review process. The tribe stated that due to cultural features and the historic landscape of the Ancient Highway area, a tower in the Ancient Highway area would be detrimental to the tribes’ cultural heritage.
Defendants’ Motion to Dismiss/Strike, Appendix I p.2.

The logic of according of absolute privilege to reports of experts or consultants that are preliminary to proposed or actual litigation (or quasi-judicial proceedings) has been described as follows:
If this were not so, every expert who acts as a consultant for a client with reference to proposed or actual litigation, and thereafter appears as an expert witness, would be liable to suit at the hands of his client’s adversary on the theory that while the expert’s testimony was privileged, his preliminary conferences with and reports to his client were not and could form the basis of a suit for tortious interference.
Middlesex Concrete Prods. & Excavating Corp. v. Carteret Indus. Ass’n. 68 N.J. Super. 85, 172 A.2d 22, 25 (App. Div. 1961). This principle has been applied to such preliminary reports as initial and updated appraisals “prepared prior to the filing of the underlying eminent domain proceeding,” Darragh v. Superior Court in and for County of Maricopa, 183 Ariz. 79, 82, 900 P.2d 1215 (1995), as well as an outside consultant’s report concerning a neurologist that sparked an administrative hearing, Offen v. Brenner, 553 F.Supp.2d 565, 569 (D.Md. 2008).

As previously noted, the Mohegan Tribal Historic Preservation Officers were responding to a legitimate request for their opinion in the Section 106 process as part of AT&T’s application for permission from the Connecticut Siting Council for approval of the construction and operation of a telecommunications tower. As such, the Response was preliminary to a quasi-judicial proceeding and entitled to absolute privilege.

Plaintiffs’ Motion to Reconsider Judgment is denied.

All Citations
--- Am. Tribal Law ----, 2018 WL 3618252, 1 M.T.C.R. 155



This was confirmed by Plaintiffs’ counsel at oral argument.


Once again, it is clear that, as to the historic/cultural difficulties with the Drabik Ancient Highway parcel cited in the CSC decision, namely the presence of “potential tribal features on an abutting parcel and the potential historic use of the Ancient Highway by the tribe” and the “historic landscape of the Ancient Highway area” only the first was mentioned in the Response.


The Court, in analyzing Defendants’ challenge to Count Four, sounding in trespass, did view all allegations in the light most favorable to the Plaintiffs.


Also sometimes described as AT&T Mobility d/b/a New Cingular Wireless PCS, LLC.


Plaintiffs’ Second Amended Complaint, Paragraph 7.


Plaintiffs’ Second Amended Complaint, Paragraph 10.


Plaintiffs’ Second Amended Complaint, Paragraph 11.


Plaintiffs’ Second Amended Complaint, Paragraph 12.


See Memorandum of Decision on Defendants’ Motion to Strike dated January 17, 2017 for a more detailed description.


Plaintiffs’ Second Amended Complaint, Paragraph 13. This Response is described in the Court’s earlier decisions as containing two separate conclusions:
First, that “no archaeological sites and/or National Register of Historic Places Properties have been identified within 0.8 km. (0.5 mi.) of the proposed project location” on the Ancient Highway property (presumably the Drabik Property). Thus, there are “no visible cultural features ... within the Area of Potential Effects-Direct Effects (APE-DE).”
Second (hereafter the “second conclusion”), there are “substantial stone groupings on the adjacent property”, outside the APE-DE such that “the proposed new telecommunications facility would clearly impact the view shed and possibly cause impact to the overall integrity of the landscape.” These stone groupings are further described as a “ceremonial stone landscape that would be eligible for the National Register.” The Mohegan THPO is “in support of finding an alternative location for the proposed new telecommunications facility located at Ancient Highway, East Lyme, Connecticut to avoid potential effects to the view shed10 and possibly cause potential adverse effects to the overall integrity of the landscape due to the abundance of cultural features nearby.”


Plaintiffs’ Second Amended Complaint, Paragraph 16.


Plaintiffs’ Second Amended Complaint, Paragraph 18.


Plaintiffs’ Second Amended Complaint, Paragraph 27.


Defendants’ Motion to Dismiss/Strike, Appendix I.


See 36 C.F.R. § 800.02(c)(ii)(B).


36 C.F.R. § 800.02(c)(ii)(C).


Hopkins v. O’Connor, 282 Conn. 821, 832, 925 A.2d 1030 (2007).