APPEALS COURT UPHOLDS DISMISSAL IN CELL TOWER DISPUTE

The state Appellate Court has upheld the dismissal of an East Lyme property owner’s bid to question Mohegan tribal officials in a dispute over the proposed location of a cell tower.

In a unanimous decision released last week, a three-judge panel found that New London Superior Court Judge Leeland Cole-Chu was right to dismiss the property owner’s petition for a “bill of discovery” because of the tribe’s sovereign immunity from lawsuits.

John Drabik, the property owner, filed the petition in September 2015, seeking to depose James Quinn, the tribe’s historic preservation officer, and Elaine Thomas, Quinn’s deputy, about statements Thomas made to the Federal Communications Commission.

Drabik claimed that Thomas’s comments about the cultural significance of “stone groupings” on a lot adjacent to land Drabik owns on Ancient Highway caused AT&T to abandon its interest in siting a cell tower on Drabik’s property.

The tribal defendants, including the Mohegan Tribal Council, sought to have Drabik’s petition dismissed, citing the doctrine of tribal sovereign immunity.

In the Appellate Court’s opinion, Judge Douglas Lavine wrote that Drabik failed “to provide legal authority or a persuasive logical argument” that sovereign immunity from lawsuits doesn’t extend to a petition for a bill of discovery.

“Defendants cloaked with sovereign immunity are immune from suit and, therefore, immune from a bill of discovery to help establish facts necessary to commence a suit,” Lavine wrote.

Drabik also claimed that ColeChu improperly had determined that Thomas and Quinn were entitled to immunity, arguing that they had acted in their individual capacities rather than within the scope of their tribal authority. The Appellate Court rejected that argument.

Judges Bethany Alvord and Christine Keller joined Lavine in hearing the appeal.