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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK STATE OF NEW YORK; ANDREW M. CUOMO, in his capacity as Governor of the State of New York; ERIC T. SCHNEIDERMAN, in his capacity as Attorney General of the State of New York; MADISON COUNTY, NEW YORK; and ONEIDA COUNTY, NEW YORK, Plaintiffs,
- v - SALLY JEWELL, Secretary, United States Department of the Interior; JAMES E. CASON, Associate Deputy Secretary of the Interior; P. LYNN SCARLETT, Deputy Secretary of the Interior; FRANKLIN KEEL, Eastern Regional Director, Bureau of Indian Affairs; UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS; UNITED STATES DEPARTMENT OF THE INTERIOR; UNITED STATES OF AMERICA; DAN M. TANGHERLINI, Acting Administrator, United States General Services Administration; UNITED STATES GENERAL SERVICES ADMINISTRATION, Defendants,
and
ONEIDA NATION OF NEW YORK,
Defendant-Intervenor.
Index No. 6:08-CV-00644 (LEK) (DEP)
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO STOCKBRIDGE-
MUNSEE’S MOTION TO INTERVENE AARON M. BALDWIN, AAG Assistant Attorney General
WHITE & CASE LLP Dwight A. Healy Joshua D. Weedman 1155 Avenue of the Americas New York, New York 10036-2787
Of Counsel DAVID H. TENNANT ERIK A. GOERGEN
ERIC T. SCHNEIDERMAN Attorney General of the State of New York, Pro Se and as Attorney for the State of New York and Governor Andrew M. Cuomo The Capitol Albany, New York 12224
NIXON PEABODY LLP Attorneys for Madison County, New York and Oneida County, New York 1300 Clinton Square Rochester, New York 14604-1792
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TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1
FACTUAL BACKGROUND ..........................................................................................................3
A. History Of The Action .................................................................................3
B. The Settlement Agreement ..........................................................................3
C. Stockbridge ..................................................................................................5
D. Stockbridge’s Aborted Challenges To The ROD ........................................7
E. Stockbridge’s Belated Motion To Intervene ................................................8
ARGUMENT ...................................................................................................................................9
I. STANDARDS FOR INTERVENTION AS OF RIGHT .........................................9
II. STOCKBRIDGE HAS FAILED TO IDENTIFY A PROTECTABLE INTEREST RELATING TO THE SUBJECT OF THIS ACTION IN A TIMELY MANNER ..............................................................................................10
A. Any Effort To Intervene To Challenge Or Clarify The Decision Of The DOI To Take Land Into Trust For the ON Reflected In The ROD Is Untimely .......................................................................................11
B. The Stipulation And Settlement Agreement Do Not Constitute A Judicial Determination Of The Status Of The New Stockbridge Area ............................................................................................................13
C. The Stipulation And Settlement Agreement Do Not Bind The Second Circuit In The Land Claim Appeal ................................................14
D. The Stipulation And Settlement Agreement Do Not Affect Any Interest Of Stockbridge In The Tax Foreclosure Cases .............................15
E. The Stipulation And Settlement Agreement Do Not Preclude Stockbridge From Challenging Any Future Decision Of The DOI On Any Future ON Land Into Trust Application .......................................16
III. STOCKBRIDGE DOES NOT MEET THE STANDARD FOR PERMISSIVE INTERVENTION UNDER RULE 24(b) ......................................16
IV. STOCKBRIDGE HAS NOT COMPLIED WITH RULE 24(c) ............................18
CONCLUSION ..............................................................................................................................19
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TABLE OF AUTHORITIES
CASES
Abramson v. Pennwood Inv. Corp., 392 F.2d 759 (2d Cir. 1968) ....................................................18
Alston v. Coughlin, 109 F.R.D. 609 (S.D.N.Y. 1986) ........................................................................9
Cayuga Indian Nation v. Pataki, 413 F.3d 266 (2d Cir. 2005) ...........................................................6
City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005) ....................................6
D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001) .................................................................11
Great Atl. & Pac. Tea Co. v. Town of East Hampton, 178 F.R.D. 39 (E.D.N.Y. 1998) ..................17
H.L. Hayden Co. v. Siemens Med. Sys., Inc., 797 F.2d 85 (2d Cir. 1986) ......................................17
In re Tribune Co. Fraudulent Conveyance Litig., Nos. 11-MD-2296, 12-MC-2296, 2013 WL 1960592 (S.D.N.Y. May 14, 2013) ............................................................................11
Kamerman v. Steinberg, 681 F. Supp. 206 (S.D.N.Y. 1988) ...........................................................18
MasterCard Int’l, Inc. v. Visa Int’l Serv. Ass’n, 471 F.3d 377 (2d Cir. 2006) .......................9, 10, 11
New York News Inc. v. Newspaper & Mail Deliverers’ Union 139 F.R.D. 291 (S.D.N.Y. 1991) ................................................................................................18
Oneida Indian Nation of New York v. Cnty. of Oneida, 617 F.3d 114 (2d Cir. 2010) ................6, 11
Oneida Indian Nation of New York v. Madison Cnty., 235 F.R.D. 559 (N.D.N.Y. 2006) ..............12
Oneida Indian Nation v. Madison Cnty., 665 F.3d 408 (2d Cir. 2011) ............................................15
Onondaga Nation v. New York, 500 Fed. Appx. 87 (2d Cir. 2012) ..................................................7
Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941 (7th Cir. 2000)........................................12, 13
Tummino v. Hamburg, 2013 WL 3005554 (E.D.N.Y. Apr. 5, 2013) ..............................................18
United States v. City of New York, 198 F.3d 360 (2d Cir. 1999) ....................................................17
Washington Elec. Coop., Inc. v. Mass. Munic. Wholesale Elec. Co. 922 F.2d 92 (2d Cir. 1990)................................................................................................9, 10, 17
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STATUTES AND RULES
73 Fed. Reg. 30 (May 23, 2008) .........................................................................................................7
73 Fed. Reg. 18553 (Apr. 4, 2008) .....................................................................................................6
78 Fed. Reg. 26388 (May 6, 2013) .....................................................................................................6
7 Stat. 44 (1794) ..................................................................................................................................4
40 U.S.C. § 523 ...................................................................................................................................3
Fed. R. Civ. P. 7 ................................................................................................................................18
Fed. R. Civ. P. 19 ................................................................................................................................9
Fed. R. Civ. P. 24 ...................................................................................................................... passim
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PRELIMINARY STATEMENT
The Stockbridge-Munsee Community, Band of Mohican Indians (“Stockbridge”) seeks to
intervene in this lawsuit in order to challenge a comprehensive and historic settlement agreement
between the Oneida Nation of New York, the State of New York, Madison County, and Oneida
County (the “Settlement Agreement”).1 The Settlement Agreement resolves decades of
controversy over a variety of land, jurisdictional, and gaming issues, including the issues raised
in this case, which have long eluded resolution despite numerous past efforts through mediation
and direct negotiations.
Stockbridge’s motion rests on the incorrect premise that the stipulation of dismissal that
the parties to the settlement recently submitted to this Court and which provides for the dismissal
of this action and the approval of the Settlement Agreement (the “Stipulation”) will result in a
judicial declaration that the boundaries of the historic reservation of the ON encompass a six
square mile area that Stockbridge claims to be its reservation (referred to in Stockbridge’s
motion as the New Stockbridge area), and will therefore adversely affect the interests of
Stockbridge in that area. Stockbridge also contends (erroneously) that the Stipulation will
adversely affect its position in the pending appeal of this Court’s dismissal of Stockbridge’s land
claim action, and the two tax foreclosure actions pending in this district.
The Settlement Agreement contains a definition of “Reservation” that is keyed to the
Treaty of Canandaigua, the very treaty relied on by Stockbridge to support its claims. Contrary
1 The following abbreviations are used herein: Stockbridge’s motion to intervene (the “Motion”); Stockbridge’s memorandum of law in support (“Stockbridge Mem.”); the State of New York (“State”); Andrew M. Cuomo, in his capacity as Governor of the State of New York (“Governor”); Eric T. Schneiderman, in his capacity as Attorney General of the State of New York (the “Attorney General” and together with the State and the Governor, the “State”); Madison County and Oneida County (the “Counties”); Department of Interior (“DOI”); Secretary of Interior (“Secretary” and together with the United States and other federal government defendants, the “Federal Defendants”); the determination by the DOI to take 13,003.89 acres of land in the Counties into trust for the benefit of the ON (the “ROD”); Oneida Nation of New York (“ON”).
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to Stockbridge’s contention, however, the Settlement Agreement does not call for, and the
Stipulation does not purport to represent, a judicial determination regarding the existence or non-
existence of the New Stockbridge area or its boundaries, or otherwise “resolve” Stockbridge’s
land claims. Indeed, nothing in the Stipulation addresses the claims of Stockbridge in its land
claim action at all, which in any event are barred under a clear line of Supreme Court and Second
Circuit authority by equitable principles of laches, acquiescence, and impossibility, as well as by
State sovereign immunity. The Stipulation has no effect on the merits (or lack thereof) of
Stockbridge’s appeal from the dismissal of its land claim action.
Moreover, the Stipulation does not resolve the reservation boundary issue in the context
of the tax-foreclosure litigation. The Settlement Agreement provides for the final disposition of
those actions through a proposed amended judgment. Although it does state that the ON
“reservation has not been disestablished,” the proposed amended judgment does not define the
term “reservation” and does not contain any findings as to the existence or non-existence of the
New Stockbridge area, or of the ON reservation boundary.
Finally, the Stipulation does not purport to pre-approve any decision by the DOI to take
land into trust for the ON that is located within the claimed boundaries of the New Stockbridge
area. The Settlement Agreement merely provides that the State and County will not object to
certain future applications by the ON. Stockbridge is also of course free to object to any DOI
decisions on future ON applications.
The Motion fails under the plain terms of Rule 24(a). Neither the Settlement Agreement
that resolves the action, nor the proposed Stipulation, affects or threatens to affect any interest of
Stockbridge. Stockbridge similarly does not come within the terms of Rule 24(b) for permissive
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intervention. Finally, Stockbridge has not attached a “pleading” to the Motion as required by
Rule 24(c). The Motion is untimely and misconceived, and consequently, should be denied.
FACTUAL BACKGROUND
A. History Of The Action
The State and Counties filed this action on June 19, 2008, following the DOI’s
publication of the determination by the DOI to take 13,003.89 acres of land in the Counties into
trust for the benefit of the ON (the Record of Decision or “ROD”). Plaintiffs’ original complaint
challenged the ROD on various statutory and constitutional grounds. Following the DOI’s
acceptance in trust for the ON of a separate 18 acres of land under 40 U.S.C. § 523, Plaintiffs
supplemented their complaint in 2009 and added claims challenging that decision.
Over the course of the past five years, the parties have briefed and argued, and the Court
has decided, a series of dispositive and procedural motions. At no point in those five years has
Stockbridge sought to intervene, or even requested permission to appear as amicus curiae. It is
only now, when the State, Counties and ON have announced their agreement to resolve this
action, along with many other disputes among them, that Stockbridge asserts an interest and
moves to intervene to disrupt that settlement.
B. The Settlement Agreement
The Settlement Agreement represents a comprehensive effort by the State, Counties and
ON to resolve an array of outstanding issues that have been in dispute for years, including the
land-into-trust decision that is the subject of this action. In addition to the issues raised in this
proceeding, the Settlement Agreement resolves issues relating to the amount of land the ON may
in the future seek to have taken into trust; the taxation of ON land; the status of ON and County
real property tax litigation with respect to ON land; the application of sales tax to sales of
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tobacco and fuel to non-Indians occurring on ON land pending in state court and the real
property tax foreclosure litigation in federal court; and gaming under the State/ON gaming
compact.
With specific reference to Stockbridge’s motion, the Settlement Agreement provides that
the ON’s “Reservation” is defined as “the land within Madison and Oneida County
acknowledged as the reservation of the Oneida Nation in Article II of the Treaty of Canandaigua,
7 Stat. 44 (1794), as depicted on the map attached as Ex. I.” Settlement Agreement (Exhibit 12
to Declaration of Don B. Miller (Dkt. No. 303-2)) at II(Q). The Settlement Agreement contains
certain provisions relating to the “Reservation” as defined, but the Settlement Agreement is silent
on Stockbridge’s claimed rights to any of the land referenced in such definition.
The Settlement Agreement also contains provisions relating to future applications by the
ON for land to be taken into trust. While the Settlement Agreement prevents the ON from
seeking to have lands taken into trust beyond the stated cap, the Agreement itself does not
contain any provision requiring DOI to accept any land currently held by the ON or acquired in
the future – or any land in which Stockbridge claims rights – into trust for the ON. Nor does it
preclude the DOI from taking land into trust for Stockbridge. The United States takes the
position (see infra., at fn. 6) that in determining any future applications it will apply the law and
regulations independently of the Settlement Agreement.
The Settlement Agreement provides that the parties submit to this Court a Stipulation in a
form annexed to the agreement. See Ex. Exhibit B to the Settlement Agreement. The
Stipulation, which was submitted to this Court on December 12, 2013, provides for dismissal of
this action pursuant to the terms of an accompanying order, which in turn provides that the
Court: (i) approve the Settlement Agreement; (ii) incorporate the terms of the Settlement
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Agreement into the order; (iii) retain jurisdiction sufficient to enforce the Settlement Agreement;
and (iv) dismiss all claims in this action with prejudice. Id. The Stipulation does not, by its
terms, contain any determination or declaration as to the boundaries of the ON reservation, or the
existence, status or boundaries of the New Stockbridge area. Nor does it purport to extinguish
any rights Stockbridge may have in land within the area defined in the Settlement Agreement as
the ON Reservation, to alter or impair any arguments Stockbridge may seek to raise in the appeal
from the dismissal of its land claim action, or preclude Stockbridge from seeking to have land
taken into trust by the DOI on its behalf.
Additionally, pursuant to the Settlement Agreement, the parties are to submit forms of
proposed judgments resolving the litigation pending in this court relating to tax foreclosure
proceedings brought by the Counties, namely Oneida Indian Nation v. Madison County, No. 00-
cv-506 (N.D.N.Y.), and Oneida Indian Nation v. Oneida County, No. 05-cv-945 (N.D.N.Y.). Id.
at Exs. C, D. Those proposed judgments do not purport to make a judicial declaration as to the
ON reservation boundaries, but instead only provide that the Court declare “the Oneida Nation’s
reservation was not disestablished.” Id.
Finally, neither the Settlement Agreement nor the Stipulation, (i) requires the DOI to
accept any future land-to-trust applications by the ON, or (ii) precludes Stockbridge from
submitting its own future land-to-trust applications. See Id. at VII.B.1.
C. Stockbridge
Stockbridge is a federally recognized Indian tribe, occupying a Wisconsin reservation
provided by the United States in the nineteenth century. See Constitution & By-Laws,
www.mohican-nsn.gov/TribalOrdinances/CONSTITUTION%20AND%20BYLAWS.pdf; see
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also www.mohicannorthstar.com; 73 Fed. Reg. 18,553 (Apr. 4, 2008); 78 Fed. Reg. 26,388 (May
6, 2013).
In 1986, Stockbridge sued the State of New York and others, asking to be restored to
possession of land within the New Stockbridge area and for monetary relief for the wrongful
transfer of such land. Stockbridge-Munsee Community v. Oneida Indian Nation, et al., No. 86-
CV-1140 (LEK/GJD) (N.D.N.Y.) (hereinafter the “Stockbridge Land Claim”). The ON
intervened as a defendant in 1987. Stockbridge later filed an amended complaint naming the ON
as a defendant, and seeking to oust the ON from possession of land within the area purchased in
fee by the ON, along with monetary relief. Id.
The Stockbridge Land Claim was stayed for many years pending the outcome of related
land claim litigation brought by the ON against the State and Counties. See Oneida Indian
Nation v. New York, Case No. 5:74-CV-187 (LEK/DRH). The ON’s land claims were
ultimately dismissed by this Court and the Second Circuit. Oneida Indian Nation of New York v.
Cnty. of Oneida, 617 F.3d 114 (2d Cir. 2010), cert denied, 132 S. Ct. 452 (2011). In affirming
this Court’s dismissal of the ON land claims, the Second Circuit relied on the Supreme Court’s
decision in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), which
had held that the equitable doctrines of laches, acquiescence, and impossibility applied to
ancestral Indian land claims at law. The Second Circuit also relied on its own post-Sherrill
decision of Cayuga Indian Nation v. Pataki, 413 F.3d 266 (2d Cir. 2005), cert denied, 547 S. Ct.
1128 (2006), which had applied the Sherrill rationale to bar monetary claims arising from ancient
transfer of tribal lands.
On January 6, 2012, the stay was lifted in the Stockbridge Land Claim. On July 23,
2013, upon the defendants’ motion to dismiss, this Court held that, in light of the Supreme
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Court’s decision in Sherrill and the Second Circuit decisions in Cayuga and Oneida, the
doctrines of laches, acquiescence, and impossibility compelled dismissal of the possessory lands
claims brought by Stockbridge against New York State and Madison and Oneida Counties. See
Stockbridge, No. 86-CV-1140, (Dkt #302). This Court further found Stockbridge’s claims were
barred by the sovereign immunity of the State and the ON. Id.
Stockbridge filed a notice of appeal from this Court’s ruling on August 13, 2013. Id.
(Dkt #304). In this appeal, Stockbridge will face the same adverse Supreme Court and Second
Circuit precedent in the form of the “Sherrill-Cayuga-Oneida” trilogy, which will no doubt
compel affirmance of this Court’s order dismissing the Stockbridge Land Claim.2
D. Stockbridge’s Aborted Challenges To The ROD
In the ROD that is subject to challenge in this action, the land that the DOI determined to
accept into trust on behalf of the United States included land claimed by Stockbridge in the
Stockbridge Land Claim, namely the New Stockbridge area. The DOI nevertheless agreed to
accept a trust transfer from the ON of those lands, despite an objection by Stockbridge,
explaining that there would be no prejudice to Stockbridge. See the ROD (previously submitted
at Dkt. No. 238-12); 73 Fed. Reg. 30, 144 (May 23, 2008) (notice of decision).
Stockbridge initially challenged the ROD in an Administrative Procedure Act (“APA”)
action filed on June 17, 2008. See Stockbridge-Munsee Cmty. v. United States, et al., No. 5:09-
cv-00050 (Dkt. No. 2 - first amended APA complaint). Stockbridge alleged that the DOI’s
decision was unlawful because the DOI did not properly consider that Stockbridge has rights in
the land in question that are superior to the ON’s rights or that a trust transfer would prejudice
2 Recently, the Onondaga Nation also failed to overcome this trilogy of adverse authority on appeal from this Court’s dismissal of their land claim action. Onondaga Nation v. New York, 500 Fed. App’x 87 (2d Cir. 2012), cert denied, 2013 U.S. LEXIS 7264 (Oct. 15, 2013).
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Stockbridge’s land claim case against the ON. Id. at ¶¶ 59 (describing New York land claim
case), 60 (describing lis pendens filed against ON land in land claim case), 90 (describing how
trust transfer would impair superior Stockbridge property rights and New York land claim case).
However, on March 29, 2009, Stockbridge voluntarily withdrew its APA action. See id., at Dkt.
No. 23 (Notice of Voluntary Dismissal Pursuant to Rule 41(a)(1)(A)(i) by Stockbridge-Munsee
Community, Band of Mohican Indians).
Stockbridge also sought a preliminary injunction in the Stockbridge Land Claim before
this Court, seeking to enjoin the DOI from accepting into trust on the ON’s behalf the New
Stockbridge area in which Stockbridge claimed an interest. Stockbridge, No. 3:86-cv-01140
(Dkt #264). However, on July 17, 2008, Stockbridge voluntarily withdrew the preliminary
injunction motion as well. Id. (Dkt #266).
E. Stockbridge’s Belated Motion To Intervene
As noted above, this Court dismissed the Stockbridge Land Claim on August 13, 2013.
After filing its appeal of this Court’s decision in the Stockbridge Land Claim, on September 25,
2013, nearly four months after the announcement of the Settlement Agreement, Stockbridge
moved to intervene in this lawsuit under Rules 24(a)(2) and (b) of the Federal Rules for the
“limited purpose of objecting and seeking minor modifications of this Court’s order approving
the Settlement Agreement insofar as it affects the status of lands that are the subject of this
action, the tax-foreclosure litigation and the Stockbridge land-claim action.” (Stockbridge Mem.
at 2).
According to Stockbridge, the Settlement Agreement erroneously treats the New
Stockbridge area as if it were ON land, and thus “would resolve in the OIN’s favor a central
issue in Stockbridge’s pending land-claim action by defining Stockbridge treaty reservation as
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part of the Oneida Treaty Reservation.” (Stockbridge Mem. at 2). Stockbridge further claims
that the New Stockbridge area is under the jurisdiction of the federal courts because it is the
subject of Stockbridge’s recent appeal, and is therefore “not subject to having their status altered
in this action in a manner that would preclude the relief sought in the land-claim action.”
(Stockbridge Mem. at 3). As set forth below, Stockbridge’s motion is not only untimely, but also
rests on a fundamental misunderstanding of the Settlement Agreement and the Stipulation.
ARGUMENT
I. STANDARDS FOR INTERVENTION AS OF RIGHT
“Intervention as of right under Rule 24(a)(2) is granted when all four of the following
conditions are met: (1) the motion is timely; (2) the applicant asserts an interest relating to the
property or transaction that is the subject of the action; (3) the applicant is so situated that
without intervention, disposition of the action may, as a practical matter, impair or impede the
applicant’s ability to protect its interest; and (4) the applicant’s interest is not adequately
represented by the other parties.” MasterCard Int’l, Inc. v. Visa Int’l Serv. Ass’n, 471 F.3d 377,
389 (2d Cir. 2006); Alston v. Coughlin, 109 F.R.D. 609, 613 (S.D.N.Y. 1986) (denying
intervention where intervenor’s interest “relates to the subject matter of the suit only in an
indirect and hypothetical manner”). Intervention under Rule 24(a) “requires a showing that
disposition of the proceeding without the involvement of the putative intervenor would impair
the intervenor’s ability to protect its interest.” Washington Elec. Coop., Inc. v. Mass. Munic.
Wholesale Elec. Co., 922 F.2d 92, 98 (2d Cir. 1990) (denying intervention where disposition of
the proceeding “will not operate to bar under the doctrines of res judicata or collateral estoppel”
any future attempts of the movant to pursue its concerns). In fact, “if a party is not ‘necessary’
under Rule 19(a), then it cannot satisfy the test for intervention as of right under Rule 24(a)(2).”
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MasterCard Int’l Inc., 471 F.3d at 389-90. As such, “[i]ntervenors must take the pleadings in a
case as they find them” and cannot “radically alter that scope to create a much different suit.”
Washington Elec. Coop., 922 F.2d at 97.
II. STOCKBRIDGE HAS FAILED TO IDENTIFY A PROTECTABLE INTEREST RELATING TO THE SUBJECT OF THIS ACTION IN A TIMELY MANNER Stockbridge’s purported interests in the New Stockbridge area are not affected by either
the Stipulation or the Settlement Agreement. Although Stockbridge attempts to frame its
purported “interest in the litigation” as its claim to an “unextinguished property right[] in
approximately 3400 acres” of the land the DOI has determined to take into trust for the ON
(Stockbridge Mem. at 14), Stockbridge does not, and cannot, support intervention on the basis
that resolution of this action will result in the DOI taking into trust that land. Any such effort is
barred by Stockbridge’s own prior actions and would be facially untimely.3
Evidently recognizing that it cannot intervene to object to a resolution of the claims in
this case, Stockbridge shifts ground when describing the alleged adverse effect the Settlement
Agreement would have on its claimed interest. None of those grounds supports intervention.
First, the Stipulation and Settlement Agreement do not constitute a judicial determination of the
status of the New Stockbridge Area or the interest, if any, of Stockbridge in any land within the
area defined as the ON “Reservation” in the Settlement Agreement. Second, the Stipulation and
Settlement Agreement do not bind the Second Circuit or otherwise affect the Stockbridge Land
Claim. Third, the Stipulation and Settlement Agreement do not adversely affect any interest of
Stockbridge in the federal actions relating to local tax foreclosures with respect to ON land.
Finally, the Stipulation and Settlement Agreement do not obligate the DOI to take any other land
3 In any event, however, there is nothing in the Settlement Agreement or Stipulation that purports to preclude such an action if it is not already barred.
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within the New Stockbridge Area into trust in the future, and the Stipulation and Settlement
Agreement do not preclude subsequent review by this Court or the Second Circuit of any such
determination by the DOI. Consequently, Stockbridge does not have an interest in the subject
matter of this litigation that is affected by the settlement, and its motion to intervene should be
denied. MasterCard Int’l, 471 F.3d at 389-90.4
A. Any Effort To Intervene To Challenge Or Clarify The Decision Of The DOI To Take Land Into Trust For the ON Reflected In The ROD Is Untimely
Whether Stockbridge’s attempt to intervene in this action is timely implicates a flexible
concept not susceptible of a precise definition. In re Tribune Co. Fraudulent Conveyance Litig.,
Nos. 11-MD-2296, 12-MC-2296, 2013 WL 1960592, at *2 (S.D.N.Y. May 14, 2013). When
assessing the timeliness of Stockbridge’s motion, a court must evaluate the totality of
circumstances using its sound discretion. D’Amato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir.
2001). Factors that inform the timeliness analysis include: (i) how long Stockbridge had notice
of the interest before it made the motion to intervene; (ii) prejudice to existing parties resulting
from any delay; (iii) prejudice to Stockbridge if the motion is denied; and (iv) any unusual
circumstances militating for or against a finding of timeliness. D’Amato, 236 F.3d at 84
(quoting U.S. v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994)).
As noted above, Stockbridge initially challenged the ROD at issue in this case by filing a
separate lawsuit. It subsequently withdrew that action. Since the time for a direct action to
challenge the ROD has long since passed, Stockbridge cannot bring a direct claim at this late
date. Nor could it seek to intervene in this action to challenge the ROD. By the express terms of
4 To the extent that Stockbridge seeks relief from this Court that is adverse to the State or the United States, such relief would also be barred by the doctrine of sovereign immunity. See, e.g., Stockbridge, No. 86-CV-1140 (Dkt #302); Cnty. of Oneida, 617 F.3d at 131-33.
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Rule 24, any motion to intervene must be “timely.” Intervention after five years of active
litigation does not satisfy that requirement. See Oneida Indian Nation of New York v. Madison
Cnty., 235 F.R.D. 559, 563 (N.D.N.Y. 2006)(vacated on other grounds)(denying Stockbridge’s
motion to intervene to assert its claim to the six square-mile area at issue here, and noting that “it
was well known from before the inception of this action six years ago that the six-mile-square
area was within the boundaries of [ON’s] historical Reservation. Any delay would prejudice the
existing parties, and no circumstances militate for a finding of timeliness. Thus, even if it could
be said that Stockbridge had an interest in the subject of this action, the motion to intervene
would be denied as untimely.”)
Having failed to move to intervene in a timely fashion, Stockbridge cannot intervene at
the last minute to object to settlement of the claims advanced in this action. In similar
circumstances, courts have rejected intervention. For example, in Sokaogon Chippewa Cmty. v.
Babbitt, 214 F.3d 941 (7th Cir. 2000), a partnership of tribes applied to acquire trust land for
gaming purposes. Id. at 943-44. The application was denied by the DOI, and the applicants
challenged the decision under the APA alleging that the denial “was arbitrary and capricious and
violated applicable laws, regulations, and internal policies and procedures.” Id. at 944. The
parties eventually entered into a settlement agreement stipulating that the DOI would withdraw
the denial and re-review the application. The settlement expressly stated that competition with
respect to other tribes’ casinos “shall not be determinative in Interior’s decisionmaking.” Id. at
944-45. The St. Croix tribe, operator of a nearby casino, filed a motion to intervene days before
the negotiations ended. In denying intervention, the Seventh Circuit found that the tribe “cannot
use alleged legal problems with the Settlement Agreement to bootstrap itself into this litigation.
That the St. Croix waited until settlement was imminent strongly suggests that the tribe was not
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interested in intervening in the litigation but in blocking a settlement between the parties – or, at
a minimum, this settlement.” Id. at 948.
B. The Stipulation And Settlement Agreement Do Not Constitute A Judicial Determination Of The Status Of The New Stockbridge Area
At the outset, the Stipulation (and the Settlement Agreement which it would approve)
does not constitute a judicial determination regarding the existence or non-existence of the New
Stockbridge area, nor does it purport to judicially determine its boundaries. The Settlement
Agreement’s definition of “Reservation” is nothing more than that – an agreement between the
parties to the Settlement Agreement as to how they define the ON reservation – and is not
binding on Stockbridge. Consequently, nothing in the Stipulation (or the Settlement Agreement)
affects any interest Stockbridge claims to have in land included in the Settlement Agreement’s
definition of Reservation including, without limitation, the land subject to the land claim pending
before the Second Circuit (which in any event is barred under a clear line of Supreme Court and
Second Circuit authority by equitable principles of laches, acquiescence, and impossibility, as
well as by State sovereign immunity).
As the Seventh Circuit found in Babbitt, “[t]he district court’s approval of the Settlement
Agreement…is only binding between the parties to it…. Others – like the St. Croix – who are
not parties to the Settlement Agreement are not bound by its terms....” Id. at 949. As in that
case, neither the Settlement Agreement nor the Stipulation approving it judicially determines any
right of Stockbridge. Consequently, the Settlement Agreement and Stipulation do not impair or
threaten to impair any identifiable interest in the property that is subject to this action, and
intervention should be denied.5
5 Stockbridge claims that “the Settlement Agreement changes the status of an 81.761-acre parcel (Parcel ID no. 136 on Ex. A to the SA, Decl. Ex. 12) that the [ROD] removed from the list of accepted parcels because it was not
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C. The Stipulation And Settlement Agreement Do Not Bind The Second Circuit In The Land Claim Appeal
Nothing in the Settlement Agreement purports to, or could, affect Stockbridge’s appeal in
the Stockbridge Land Claim. For the reasons mentioned above, as well as others, this Court’s
dismissal of the Stockbridge Land Claim falls squarely within the scope of the Sherrill-Cayuga-
Oneida line of cases, but to the extent Stockbridge has some viable claim (which the State and
Counties dispute), such claim is not affected by the resolution of this case by settlement. And
even if the Settlement Agreement purported to do so, which it does not, this Court does not have
authority to bind the Second Circuit. Thus, nothing in the Stipulation or Settlement Agreement
predetermines Stockbridge’s purported rights to the land, if any exist, in a manner that would
bind the Second Circuit. The Second Circuit’s ruling on the pending Stockbridge Land Claim
appeal – if the Second Circuit were to ignore Supreme Court and its own precedent and
determine that Stockbridge has a valid land claim – would a fortiori modify the Settlement
Agreement to the extent any provisions are inconsistent (which they are not).
Consequently, Stockbridge’s argument in favor of intervention – that the Settlement
Agreement “would resolve in the OIN’s favor a central issue in Stockbridge’s pending land-
claim action by defining the Stockbridge treaty reservation as part of the Oneida Treaty
Reservation” (Stockbridge Mem. at 2) – is devoid of merit. The Settlement Agreement cannot
alter the status of the claimed Stockbridge reservation lands “in a manner that would preclude the
relief sought in the land-claim action.” (Stockbridge Mem. 3).
contiguous to the Oneida reservation.” (Stockbridge Mem. 3). No harm to Stockbridge occurs, however, unless and until that parcel of land is taken into trust as a result of a future application by the ON. As such, the purported harm is speculative and cannot be used as a predicate to intervene in this action. And, of course, Stockbridge is free to challenge any future decision by the DOI with respect to any land-into-trust application by the ON to the extent that Stockbridge claims an interest in the land subject to such application.
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D. The Stipulation And Settlement Agreement Do Not Affect Any Interest Of Stockbridge In The Tax Foreclosure Cases
Stockbridge appears to contend that somehow the Stipulation and Settlement Agreement
adversely affect its interests because Stockbridge previously sought but was denied the right to
intervene in the federal tax foreclosure actions on the ground that those cases did not bear upon
the boundaries of the ON treaty reservation or whether any lands owned by the ON are situated
in the Stockbridge treaty reservation area. (Stockbridge Mem. at 14-15) This argument does not
withstand scrutiny.
First, the Settlement Agreement does not call for any judicial determination in the tax
foreclosure proceedings as to the boundaries of the ON reservation or the New Stockbridge area.
The Settlement Agreement calls for submission of proposed forms of judgment in the two cases.
And the only thing the proposed judgments say as to any “reservation” is that “[i]t is declared
that the Oneida Nation’s reservation was not disestablished.”6 See, e.g., Ex. D to Settlement
Agreement. The proposed judgments do not define “reservation” or reference the definition in
the Settlement Agreement.
Second, if Stockbridge thinks that the proposed judgments in the tax foreclosure cases
should not be entered in the form proposed, the appropriate place to raise that issue is in the
foreclosure actions when the parties propose entry of those judgments. Any objection here is, at
best, premature.
6 The Second Circuit has already spoken on this issue. See Oneida Indian Nation v. Madison Cnty., 665 F.3d 408, 442-43 (2d Cir. 2011) (petition for certiorari pending).
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E. The Stipulation And Settlement Agreement Do Not Preclude Stockbridge From Challenging Any Future Decision Of The DOI On Any Future ON Land Into Trust Application
Stockbridge argues that the Stipulation and Settlement Agreement alter the status of land
owned by the ON that was not included in the 13,003.89 acres the DOI decided to take into trust
in the ROD and will therefore permit such land to be taken into trust for the ON in the future.
(Stockbridge Mem. at 17) This objection is also premature, and the United States has indicated
that in deciding any future land into trust applications, it will apply the law and regulations
independently of the Settlement Agreement.7 If the ON applies to have taken into trust any land
Stockbridge claims an interest in, Stockbridge can raise any objection that is available before the
DOI, and if the DOI in fact decides to take such land into trust, Stockbridge can challenge such
action in court. The Stipulation and Settlement Agreement do not affect that scenario.
III. STOCKBRIDGE DOES NOT MEET THE STANDARD FOR PERMISSIVE INTERVENTION UNDER RULE 24(b)
To be entitled to permissive intervention under Rule 24(b), a movant must prove that it
“has a claim or defense that shares with the main action a common question of law or fact,” Fed.
R. Civ. P. 24(b)(1)(B), and the court must consider in its discretion “whether the intervention
will unduly delay or prejudice adjudication of the original parties’ rights.” Fed. R. Civ. P.
24(b)(3). “Additional relevant factors ‘include the nature and extent of the intervenors’
interests,’ the degree to which those interests are ‘adequately represented by other parties,’ and
‘whether parties seeking intervention will significantly contribute to full development of the
underlying factual issues in the suit and to the just and equitable adjudication of the legal
7The United States takes the position that it is “not bound by any of [the Settlement Agreement’s] terms.” United States’ Response to Cayuga Nation’s Motion to Intervene (Dkt # 289), at 1; see also id. at 6-7 (stating that the “United States is not obligated by the Agreement (nor could it be) to accept any land in trust for the benefit of the Oneidas”).
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questions presented.’” H.L. Hayden Co. v. Siemens Med. Sys., Inc., 797 F.2d 85, 89 (2d Cir.
1986) (affirming denial of intervention under Rule 24(b) where would-be intervenor “has no
direct interest in the underlying litigation” and failed to demonstrate “that intervention by it will
assist in the just and equitable adjudication of any of the issues between the parties”)(citations
omitted)).
Permissive intervention can be inappropriate where “intervention would unduly
complicate and further delay the litigation” or the interjection of collateral issues to the litigation.
See Washington Elec. Coop., 922. F.2d at 98; Great Atl. & Pac. Tea Co. v. Town of East
Hampton, 178 F.R.D. 39, 44-45 (E.D.N.Y. 1998) (“It is also clear, however, that intervention
should not be used as a means to inject collateral issues into an existing action, particularly
where it serves to delay and complicate the litigation.”); United States v. City of New York, 198
F.3d 360, 368 (2d Cir. 1999) (affirming denial of Rule 24(b) intervention where claimed interests
“although broadly related to the subject matter of the action, are extraneous to the issues before
the court”).
For the same reasons discussed above, the Court should deny Stockbridge’s motion
insofar as it seeks permissive intervention because there is no common question of law or fact
created by virtue of the “Settlement Agreement’s definition and treatment of the Stockbridge
treaty reservation lands as Oneida treaty reservation lands” (Stockbridge Mem. at 21). The
Stipulation and Settlement Agreement do not modify Stockbridge’s purported rights to the New
Stockbridge area, if any exist, and even if they did, the Stipulation and Settlement Agreement
would not and could not bind the DOI or the Second Circuit. Allowing Stockbridge to intervene
at this late stage will only cause further unnecessary delay to finally resolving this case.
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IV. STOCKBRIDGE HAS NOT COMPLIED WITH RULE 24(c)
Rule 24(c) of the Federal Rules of Civil Procedure requires that a motion to intervene “be
accompanied by a pleading that sets out the claim or defense for which intervention is sought.”
Fed. R. Civ. P. 24(c). Stockbridge has not complied with the clear language of this rule, as it
does not attach a proposed complaint, answer, cross-claim or any other pleading8 to the Motion.
Failure to file this pleading is fatal to the Motion. See, e.g., Tummino v. Hamburg, 2013 WL
3005554, at *2 (E.D.N.Y. Apr. 5, 2013); Abramson v. Pennwood Inv. Corp., 392 F.2d 759, 761
(2d Cir. 1968) (affirming district court’s denial of motion to intervene for failure to file a
pleading).
Moreover, the Federal Rules do not anticipate “limited, ‘special status’ intervenors,” New
York News Inc. v. Newspaper & Mail Deliverers’ Union, 139 F.R.D. 291, 292-93 (S.D.N.Y.
1991). District Courts in the Second Circuit disfavor such special intervenor status:
The movants here, on the other hand, do not seek to join this action as either plaintiffs or as defendants. They have no claim to press against defendants; nor have they any defense to assert against plaintiffs. In fact, they have no intention whatsoever of litigating the causes of action asserted in the federal complaint. Their sole purpose in submitting their motion is to delay the prosecution of the federal action. With this goal in mind, they dress in the language of Rule 24 what is in reality an application for some special status permitting them to press their motion for a stay. For this reason alone, the court believes that the application to intervene should be denied.
Kamerman v. Steinberg, 681 F. Supp. 206, 211 (S.D.N.Y. 1988).
That is exactly what Stockbridge attempts to do here. Not only does it not submit a
pleading, but it does not address the claims and defenses asserted in the action by the parties in
8 Rule 7(a) defines the term “pleading” through an exhaustive list of examples: a complaint, an answer to a complaint, an answer to a counterclaim designated as a counterclaim, an answer to a crossclaim, a third-party complaint, an answer to a third-party complaint, and a reply to an answer. Fed. R. Civ. P. 7(a) (“Only these pleadings are allowed….”).
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any way. The Motion is an impermissible request for the Stockbridge to be accorded special
status as an objector to the parties’ settlement.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court deny
Stockbridge’s motion to intervene.
Dated: December 20, 2013 Of Counsel: WHITE & CASE LLP Dwight A. Healy, Esq. Bar Roll No: 302232 1155 Avenue of the Americas New York, New York 10036-2787 Tel: 212-819-8200 Fax: 212-354-8113 Joshua D. Weedman, Esq. Bar Roll No. 853459 1155 Avenue of the Americas New York, New York 10036-2787 Tel: 212-819-8200 Fax: 212-354-8113
ERIC T. SCHNEIDERMAN Attorney General of the State of New York, Pro Se and as Attorney for the State of New York and Governor Andrew M. Cuomo
By: /s/ Aaron M. Baldwin AARON M. BALDWIN, AAG Bar Roll No: 510175 Tel: 518-473-6045 Fax: 518-473-1572 (not for service) E-Mail: Aaron.Baldwin@ag.ny.gov Office of the Attorney General The Capitol Albany, New York 12224
NIXON PEABODY LLP Attorneys for Madison County, New York and Oneida County, New York By:/s/ David H. Tennant DAVID H. TENNANT, ESQ. Bar Roll No: 510527 1300 Clinton Square Rochester, NY 14604-1792 Tel: 585-263-1000 E-Mail: DTennant@nixonpeabody.com
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ERIK A. GOERGEN, ESQ. Bar Roll No: 517305 1300 Clinton Square Rochester, NY 14604-1792 Tel: 585-263-1000 E-Mail: EGoergen@nixonpeabody.com
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