united states district court northern district of …...new york, new york 10036-2787 . of counsel ....

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

Case 6:08-cv-00644-LEK-DEP Document 326 Filed 12/20/13 of 24

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


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

NEWYORK 9059813 (2K) iii


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”).


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

NEWYORK 9059813 (2K) 3


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

NEWYORK 9059813 (2K) 4


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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http://www.mohican-nsn.gov/TribalOrdinances/CONSTITUTION%20AND%20BYLAWS.pdf

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

NEWYORK 9059813 (2K) 6


http://www.mohicannorthstar.com/

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).

NEWYORK 9059813 (2K) 7


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

NEWYORK 9059813 (2K) 8


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).”

NEWYORK 9059813 (2K) 9


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.

NEWYORK 9059813 (2K) 10


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.

NEWYORK 9059813 (2K) 11


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

NEWYORK 9059813 (2K) 12


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: [email protected] 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: [email protected]

NEWYORK 9059813 (2K) 19


ERIK A. GOERGEN, ESQ. Bar Roll No: 517305 1300 Clinton Square Rochester, NY 14604-1792 Tel: 585-263-1000 E-Mail: [email protected]

NEWYORK 9059813 (2K) 20


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