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(Cite as: 2007 WL 3307089)
United
States District Court, E.D. New York.
State
of NEW YORK, New York State Racing and Wagering Board,
New York State Department of Environmental Conservation, and Town of
Southampton, Plaintiffs,
v.
The
SHINNECOCK INDIAN NATION, Frederick C. Bess, Lance A. Gumbs, Randall
King, and Karen Hunter, Defendants.
Town
of Southampton, Plaintiff,
v.
The
Shinnecock Tribe a/k/a the Shinnecock Indian Nation, Frederick C. Bess,
Lance A. Gumbs, and Randall King, Defendants.
Nos.
03-CV-3243 (JFB)(ARL), 03-CV-3466 (JFB)(ARL).
Oct.
30, 2007.
Robert
A. Siegfried, New York State Office of the Attorney General,
Albany, NY, for plaintiffs State of New York, New York
State Racing and Wagering Board, and New York State Department
of Energy Conservation.
Michael
Stewart Cohen of Nixon Peabody, LLP, Jericho, NY, for plaintiff
Town of Southampton.
Christopher
H. Lunding of Cleary, Gottlieb, Steen & Hamilton, New York,
NY, for defendants.
MEMORANDUM
AND ORDER
JOSEPH
F. BIANCO, District Judge.
*1
In the above-captioned consolidated actions, plaintiffs New York State (“New
York”),
the New York State Racing and Wagering Board (the “Board”),
the New York State Department of Environmental Conservation (the “DEC”)
(collectively, the “State”),
and the Town of Southampton (the “Town”
or “Southampton”)
(collectively, the “plaintiffs”)
seek to permanently enjoin defendants, the Shinnecock Indian Nation (the
“Shinnecock
Nation”
or the “Shinnecock
Tribe”
or the “Nation”
or the “Tribe”
or the “Shinnecocks”
or the “Shinnecock”
or the “Shinnecock
Indians”),
and its tribal officials sued in their official capacity (collectively,
the “defendants”),
from constructing a casino and conducting certain gaming on a
parcel of non-reservation property known as “Westwoods,”
which is situated in the western half of the Town
in Suffolk County, New York (“Westwoods”
or the “Westwoods
land”
or the “Westwoods
site”
or the “Westwoods
parcel”).
Plaintiffs have demonstrated that the defendants' actions and threatened actions
with respect to the construction and operation of a Westwoods
casino are not in compliance with New York anti-gaming laws
and environmental laws, as well as the Southampton Town Code
(the “Town
Code”).
However, because the Shinnecock Indian Nation is asserting immunity with
respect to such laws, there are three main legal issues
in the case: (1) whether aboriginal title to Westwoods held
by the Shinnecock Indian Nation at the time of first
European contact in 1640 has been extinguished; (2) whether, even
if aboriginal title has not been extinguished, the Shinnecock Indian
Nation is barred from asserting sovereignty at Westwoods, under the
Supreme Court decision in City
of Sherrill v. Oneida Indian Nation,
544 U.S. 197 (2005), because of the disruptive consequences that
the construction and operation of a casino would have on
the Town and the Suffolk County, New York (“Suffolk
County”)
community; and (3) whether there is any legal basis to
allow gambling at Westwoods in non-compliance with New York's anti-gaming
laws if the proposed casino development is not within the
parameters of federal law as set forth in the Indian
Gaming Regulatory Act, 25 U.S.C. §
2701 et
seq.
(“IGRA”).
This Memorandum and Order sets forth the Court's Findings of
Fact and Conclusions of Law, pursuant to Rule 52(a) of
the Federal Rules of Civil Procedure.
The
Court conducted a lengthy and thorough bench trial, which lasted
30 days, and included over 20 witnesses, over 600 exhibits,
and over 4,000 pages of transcripts. After carefully considering the
evidence and the law, this Court concludes that the plaintiffs
have demonstrated that they are entitled to a permanent injunction
that prevents the development of a casino at Westwoods that
is not in full compliance with New York and Town
laws and regulations. FN1
FN1.
In a Memorandum and Order, dated November 7, 2005, the
Court determined that the Shinnecock Indian Nation satisfied the federal
common law standard for determining tribal existence and, therefore, that
issue was not part of the trial.
The
Court finds that there are three independent grounds for the
Court's ruling in favor of plaintiffs. First, the evidence overwhelmingly
demonstrated in a plain and unambiguous manner that aboriginal title
held by the Shinnecock Indian Nation to the Westwoods land
was extinguished in the 17th century. More specifically, a series
of colonial era documents demonstrate in clear and unequivocal language
that (1) the Shinnecock Indian Nation sold land, which included
Westwoods, to non-Indians in the 17th century; (2) the land
was subsequently acquired by Southampton; and (3) the sovereign authority
of the Province of New York confirmed and ratified the
ownership of the land by the Town, including a determination
by New York Provincial Governor Richard Nicolls in 1666 in
which he confirmed that “all
the right and interest”
in the land that included Westwoods “is
belonging, doth and shall belong unto the town of Southampton”
and promised to defend the Town in its peaceable enjoyment
of such land “[a]gainst
all other claims whatsoever.”Although
the defendants attempt to point to certain aspects of the
historical record in an effort to cast doubt on the
meaning or validity of these transactions, the Court finds their
arguments unavailing and concludes that this colonial-era extinguishment of aboriginal
title to Westwoods is clear, unmistakable, and valid. Therefore, although
there is no dispute that the Shinnecock Indian Nation currently
owns and occupies Westwoods, the absence of current aboriginal title
for the Westwoods land renders the Shinnecock Indian Nation subject
to the application of New York and Town laws in
the development of a casino on such land.
*2
Second, even assuming arguendo
that the Shinnecock Indian Nation has unextinguished aboriginal title to
Westwoods, their proposed casino development is barred under the Supreme
Court's decision in Sherrill
because of the highly disruptive consequences the development and operation
of a casino would have on the neighboring landowners, as
well as the Town and the greater Suffolk County community.
More specifically, based upon the evidence offered at trial, the
Court concludes that the construction and operation of a casino
at Westwoods would have severe disruptive consequences to the administration
of governmental affairs, as well as the health, safety, and
long-settled expectations of the residents of Southampton. For example, the
substantial disruption to the transportation infrastructure in the Town and
Suffolk County is undeniable. The evidence at trial demonstrated that
the area in and around Southampton is already plagued with
extremely high levels of traffic congestion in the summer months.
The only rational conclusion to be drawn from the evidence
is that, absent substantial infrastructure improvements (whose cost and feasibility
are unknown), the addition of a casino to this already
overburdened traffic system would be disastrous and undoubtedly would be
highly disruptive to state and local governance and the settled
expectations of landowners. In addition, the evidence demonstrated that the
operation of a casino would have a multitude of other
health and environmental impacts on neighboring landowners and the Town.
Therefore, even if unextinguished aboriginal title currently existed, the Shinnecock
Indian Nation's delayed assertion of sovereignty over this non-reservation land
at Westwoods-after centuries of non-use of the land except for
cutting timber and recreational functions-is barred by laches and other
equitable principles under Sherrill.
A
third independent ground exists for the permanent injunction in plaintiffs'
favor. It is undisputed that the Shinnecock Indian Nation's planned
gaming facility fails to comply with applicable New York law
and that the proposed development does not fall within the
confines of IGRA, which supplanted any federal common law right
of tribes to conduct the type of unregulated gaming that
the Shinnecock Indian Nation seeks to operate at Westwoods. The
Shinnecock Indian Nation is not recognized by the federal government
and Westwoods is not “Indian
lands”
as defined by the statute and, thus, the Shinnecock Indian
Nation cannot utilize the safe-haven that IGRA provides from the
otherwise applicable state anti-gaming laws. Therefore, the Shinnecock Indian Nation
can only engage in gaming at Westwoods if it is
in compliance with current New York gambling laws. Since the
operation of a casino at Westwoods would violate New York
anti-gaming laws, there is no legal basis for the Shinnecock
Indian Nation to operate the casino.
In
terms of the requested relief, defendants argue that a permanent
injunction is unwarranted because any harm from the proposed casino
is speculative and not imminent. However, there is nothing speculative
or remote about the project-the Shinnecock Indian Nation has a
development agreement in place to build a 61,000 square foot
(“sf.”)
casino at Westwoods on 15 acres (which defendants expect to
have a capacity to hold 900 to 1,000 gaming machines
and 60 table games), it has stated its intention to
build the casino without being legally bound by government regulation
of any type, and it began clearing trees at Westwoods
in 2003 to start the project. Plaintiffs have satisfied the
requirements for permanent injunctive relief, including a showing of irreparable
harm, if the defendants are not prevented from building a
casino in violation of New York anti-gaming and environmental laws,
and Town zoning laws and other regulations.
*3
Although the Shinnecock Indian Nation has emphasized to this Court
during the trial (and the Court recognizes) the financial importance
that the proposed casino has to the Shinnecock Indian Nation
as it continues to face substantial economic hardship, this Court's
proper role is not to address or remedy those economic
hardships, but rather to examine the evidence under applicable law
to determine whether the proposed casino development is legally permissible.
For the reasons outlined briefly above and in detail in
the Findings of Fact and Conclusions of Law that follow,
the Court concludes that plaintiffs have demonstrated in an overwhelming
fashion that they are entitled to a permanent injunction preventing
the development of a casino at Westwoods that is not
in compliance with New York and Town laws and regulations.
I.
BACKGROUND
A.
THE CONSOLIDATED ACTIONS
The
lawsuit commenced by the Town against the Nation and its
three Trustees (03-cv-3466) (the “Town
action”),
has been consolidated with the lawsuit commenced by New York,
the Board, and the DEC against the Nation and its
Trustees, as well as the Chairman of the Shinnecock Nation
Gaming Authority (03-cv-3243) (the “State
action”).
Plaintiffs seek declaratory relief that the construction and operation of
a casino at Westwoods is illegal under both New York
and local law and, as a result of such violations
and threatened violations, seek to permanently enjoin such activities. The
Court will briefly summarize below the pleadings filed by each
of the parties.
(1)
THE STATE COMPLAINT
The
State complaint asserts five causes of action. The First Cause
of Action alleges that any attempt by the defendants to
build and operate a casino at Westwoods would violate New
York anti-gaming laws and that such gaming would not be
permitted under federal law (as set forth in IGRA) because,
among other things, the Nation has not been recognized as
a tribe by the Bureau of Indian Affairs (the “BIA”).
(State Complaint, at ¶¶
71-78.) The Second Cause of Action contends that defendants lack
a Storm Water Pollution Prevention Plan (“SWPPP”)
and a Notice of Intent (“NOI”)
pursuant to a General State Pollutant Discharge Elimination System (“SPDES”)
permit for construction and operation of a casino and, therefore,
cannot legally commence construction of the casino. (Id.,
at ¶¶
79-81.)The Third Cause of Action charges that, given the failure
to apply for and obtain an SPDES permit under New
York environmental law, defendants cannot lawfully commence construction of a
casino with a wastewater treatment facility that would discharge effluent
into New York waters. (Id.,
at ¶¶
82-84.)The Fourth Cause of Action alleges that, because defendants failed
to apply for and obtain a permit for a new
well under New York environmental laws, defendants may not commence
construction of a casino with an attendant new well having
a pumping capacity exceeding forty-five gallons per minute. (Id.,
at ¶¶
85-87.)The Fifth Cause of Action asserts that, because the necessary
environmental impact studies have not been conducted as required under
the State Environment Quality Review Act (“SEQRA”),
the DEC cannot issue the necessary permit to allow construction
and operation of a casino facility.(Id.,
at ¶¶
88-90.)The State seeks a permanent injunction and a declaratory judgment
in connection with these claims.
(2)
THE TOWN'S COMPLAINT
*4
The Town also seeks declaratory relief and a permanent injunction.
Specifically, the Town alleges that, in July 2003, defendants engaged
in site preparation activities at Westwoods in connection with their
previously-announced decision to develop a casino at that site. (Town's
Complaint, at ¶¶
12-15.) The Town contends that these construction activities were not
preceded by any application for, or the issuance of, the
requisite Town permits and approvals and, thus, such activities and
threatened activities violate the Town Code. (Id.,
at ¶
16.)The First Cause of Action alleges that defendants violated Town
Code §
330-184(I), which requires site plan approval or written permission from
the Southampton Planning Board before any “regrading,
clearing, tree removal or any other work in preparation of
future use of a site”
may take place. (Id
.,
at ¶
21.)According to the complaint, defendants did not apply or receive
site plan approval before engaging in site preparation activities at
Westwoods. (Id.,
at ¶
23.)The Second Cause of Action asserts that defendants' activities and/or
threatened activities violate Town Code §
325-6(A), which is part of the Town's wetlands protection legislation
and prohibits certain construction activities in a wetland area or
within 200 feet of wetland boundaries in the absence of
a Town-issued wetlands permit. (Id.,
at ¶¶
27-36.)In particular, it is alleged that defendants' site preparation activities
at Westwoods qualify under this provision and defendants violated it
by not obtaining the requisite permit. (Id.,
at ¶¶
31-34.)In short, the complaint alleges that “[d]efendants
have refused to acknowledge, much less comply with Chapters 325
[“Wetlands”]
and 330 [“Zoning”]
of the Town Code, and otherwise have refused to recognize
and
acknowledge the Town's authority to regulate the uses of the
lands within its borders.”(Id.,
at ¶
36.)
(3)
DEFENDANTS' DEFENSES
Defendants
make a number of admissions in their answers to the
complaints.FN2
Defendants admitted that the Tribe is not listed on the
master list of federally-recognized Indian Tribes maintained by the federal
government in the Federal Register. (Defs. Ans. to State's Complaint,
at ¶
43.) With respect to the alleged illegal gaming under New
York law, defendants admitted that the Nation owns Westwoods and
that the Nation intends “to
engage in gaming activities in a building to be constructed
on a portion of the Westwoods Parcel....”(Id.,
at ¶¶
46, 49.)Specifically, defendants admitted to a plan to construct a
gaming facility in the summer of 2003 that would have
the capacity to accommodate at least “900
to 1,000 gaming machines and 60 table games.”(Id.,
at ¶
50.)Defendants also conceded that the Nation had not received an
identification number issued by the Board or a license issued
by the Town authorizing gaming at Westwoods, as required by
New York gaming laws.(Id.,
at ¶¶
53-54.)With respect to the alleged violations of New York environmental
laws, defendants admitted that they have not submitted any of
the documents to the DEC for an environmental impact study
in order to commence construction of a gaming facility at
Westwoods under New York environmental laws, and that they also
lacked the environmental and building permits and agreements required under
Town zoning laws, Town fire code regulations, and New York
environmental laws. (Id.,
at ¶¶
58-59.)
FN2.
The admissions and defenses contained in the Answer to the
State Complaint mirror those contained in the Answer to the
Town Complaint.
*5
Although a number of defenses are raised in defendants' answers
to the complaints, their core defense is that New York
and its political subdivisions, including Southampton, lack the power under
the United States Constitution and federal common law to require
the defendants to obtain any license, permit, or other form
of approval to construct or operate a gaming facility at
Westwoods. (Defs. Answer to State's Complaint, at 13, “Third
Affirmative Defense”;
see
also
Defs. Answer to Town's Complaint, at ¶¶
8-9, “Third
Affirmative Defense.”)
II.
PROCEDURAL HISTORY
On
June 29, 2003, the State commenced the State action in
New York State Supreme Court, Suffolk County (“Suffolk
County Supreme Court”)
to stop construction activities at the Westwood site. On that
same date, the State obtained a temporary restraining order (a
“TRO”)
signed by New York State Supreme Court Justice Edward D.
Burke. On July 1, 2003, defendants removed the case to
this Court and the matter was assigned to the Honorable
Thomas C. Platt.
On
July 14, 2003, Southampton filed the Town action in Suffolk
County Supreme Court, also seeking to enjoin construction activities, based
on defendants' alleged violation of the Town's zoning and land
use laws. On that same date, New York State Supreme
Court Justice James M. Catterson granted the Town's application for
a TRO. Thereafter, on July 15, 2003, defendants removed the
action to this Court and the matter was assigned to
the Honorable Thomas C. Platt.
Shortly
after removal of the State action, the State moved for
remand. The State's motion for remand was denied by order
dated July 29, 2003. See
New
York v. Shinnecock Indian Nation,
274 F.Supp.2d 268, 271 (E.D.N.Y.2003). The Town also moved to
remand, but later agreed to withdraw its motion when the
two actions were consolidated. (See
Stipulation and Order, dated December 22, 2003.)
The
State also moved this Court for a TRO and a
preliminary injunction to halt construction of the casino. The Town
joined in the State's motion. By Memorandum and Order dated
August 29, 2003, the Court granted the preliminary injunction. See
New
York v. Shinnecock Indian Nation,
280 F.Supp.2d 1, 10 (E.D.N.Y.2003). The Court also stayed the
action for a period of eighteen months to allow the
BIA to decide the Nation's petition to the BIA for
federal recognition. (Id.)
Defendants appealed the August 29, 2003 Memorandum and Order, and
the Second Circuit remanded the case on November 18, 2003,
stating that the district court should determine whether a preliminary
injunction and stay was still warranted since the BIA could
not address the Nations' petition for recognition within the eighteen
months contemplated by the Court. See
New
York v. Shinnecock Indian Nation,
No. 03-7996, at 1-2 (2d Cir. Nov. 26, 2003). Following
the remand, on November 18, 2003, the Court conducted a
conference in the State action in which the Town participated.
At that conference, the Court lifted the stay, but continued
the preliminary injunction pending a decision at trial. The Town
action was also consolidated with the State action and the
parties were ordered to proceed with discovery. (See
Stipulation and Order, dated December 22, 2003.)
*6
The parties filed motions for summary judgment and partial summary
judgment on July 21, 2005. Defendants sought to dismiss the
Town and State complaints on the grounds that the Nation
is an Indian Tribe and is therefore entitled to tribal
sovereign immunity. Plaintiffs sought partial summary judgment permanently enjoining defendants
from operating a gaming facility, alleging that defendants lack the
right to engage in tribal gaming under IGRA or under
federal common law, and that any gaming was subject to
New York gaming and environmental laws. The Town sought partial
summary judgment on the grounds that Westwoods is not “Indian
country,”
as defined at 18 U.S.C. §
1151, and thus is subject to state and local law,
and that, in any event, the Nation no longer holds
aboriginal title to Westwoods because such title was extinguished by
sovereign act during the colonial era.
By
Memorandum and Order, dated November 7, 2005, Judge Platt denied
all motions for summary judgment and partial summary judgment, except
that he granted the defendants' motion for summary judgment on
the issue of whether the Nation is an Indian Tribe
pursuant to the federal common law standard established in Montoya
v. United States,
180 U.S. 261, 266 (1901) and Golden
Hill Paugussett Tribe of Indians v. Weicker,
39 F.3d 51, 59 (2d Cir.1994).See
New
York v. Shinnecock Indian Nation,
400 F.Supp.2d 486, 491-92 (E.D.N.Y.2005). Judge Platt held that “[t]he
cases described above, beginning with Montoya
and continuing to the present, establish a federal common law
standard for determining tribal existence that the Shinnecock Indian plainly
satisfies.”Id.
at 492.However, Judge Platt emphasized that “recognizing
the Shinnecocks as a Tribe does not end the matter.
The question remains as to what use Defendants may put
the Westwoods property....”Id.
at 493.Judge Platt also found that the recent Supreme Court
decision in Sherrill
was relevant to considering “the
extent of the impact of the ‘disruptive’
claims [of the defendants], the nature of the Indians' present
titles and possibly the length of the delay and the
question of laches, and appropriate remedies. These are factual and
legal determinations which may only be resolved at a trial.”Id.
at 496.Judge Platt noted that “a
remedy may also be disruptive in cases similar to the
one at bar, where dispossession is not at issue and
only neighboring landowners will be affected by the Indians' claims.”Id.
at 496 n. 6 (citing Sherrill,
544 U.S. at 219-20).
III.
THE TRIAL
A
bench trial commenced in this action before Judge Platt on
October 4, 2006. On November 15, 2006, after six days
of trial, the case was re-assigned to the undersigned.FN3The
bench trial resumed on December 4, 2006. On December 6,
2006, the State filed a motion for reconsideration of the
denial of their motion for partial summary judgment. The Court
denied the State's request that the trial be discontinued until
the reconsideration motion was fully briefed and decided. Instead, the
Court decided to continue with the trial and address the
legal issues raised by the motion for reconsideration at the
conclusion of the trial along with the other legal issues
in the case. The final witness testified on April 17,
2007. The parties submitted their proposed findings of fact and
conclusions of law on May 1 and May 2, 2007,
for utilization by the Court in connection with this Memorandum
and Order. Summations were heard on May 9 and May
10, 2007.
FN3.
Pursuant to Rule 63 of the Federal Rules of Civil
Procedure, when the case was re-assigned due to Judge Platt
being unable to proceed with the trial, the undersigned certified
familiarity with the record and determined that the proceedings in
the case could be completed without prejudice to the parties.
(Trial Transcript (hereinafter, “Tr.”)
855-57.) The Court also gave each party the option of
recalling any witness who had already testified before Judge Platt.
The parties agreed to recall two witnesses and consented to
the Court relying on the transcript for the testimony of
the other witnesses who had already testified.
IV.
FINDINGS OF FACTFN4
FN4.
To the extent that any Finding of Fact reflects a
legal conclusion, it shall be to that extent deemed a
Conclusion of Law, and vice-versa.
A.
THE PARTIES
*7
Plaintiff New York is a sovereign state with offices at
the Capitol, in the City and County of Albany, New
York. (Joint Pretrial Order Stipulation of Fact (hereinafter, “Stip.”)
No. 1.) FN5
Plaintiff Board is an agency established within the Executive Branch
of the government of New York, pursuant to Section 101
of the Racing, Pari-Mutuel Wagering and Breeding Law of the
State of New York, and consists of three members appointed
by the Governor of New York. (Stip. No. 2.) Plaintiff
the DEC is an agency established within the Executive Branch
of the government of New York, pursuant to New York
Environmental Conservation Law article 3. (Stip. No. 3.)
FN5.
Although this Memorandum and Order makes specific reference to certain,
but not all, of the individual factual stipulations set forth
in the Joint Pre-Trial Order, each and all of those
factual stipulations have been fully considered by the Court in
connection with the Court's decision.
Plaintiff
Southampton is a municipal corporation organized and existing under the
laws of New York, situated within Suffolk County and having
an address at 116 Hampton Road, Southampton, New York. (Stip.
No. 4.)
Defendant
Shinnecock Indian Nation was held to be a tribe of
Indians in this Court's Memorandum and Opinion dated November 7,
2005, and has offices on the Shinnecock Reservation in Southampton
(the “Shinnecock
Reservation”).
(Stip. No. 5.) The Nation has not been acknowledged to
be an Indian tribe by the BIA. (Stip. No.
9.) The Nation does not appear in the list of
“tribal
entities recognized and eligible for funding and services from the
[BIA] by virtue of their status as Indian Tribes,”
as set forth at 70 Fed.Reg. 71, 194 (Nov. 25,
2005). (Stip. No. 10.) There exists no treaty between the
Nation and the United States. (Stip No. 11.) The relationship
between the Nation and the government of New York (and
its predecessors) predates the existence of the federal government. (Stip.
No. 12.) The Nation currently occupies and is in possession
of the Shinnecock Reservation, on which some members of the
Nation reside. (Stip. No. 13.) The Shinnecock Reservation is generally
described in the first sentence of Section 1 of Chapter
46 of the New York Laws of 1859, and does
not include the property described below as Westwoods. (Stip. No.
14.)
Defendant
James W. Eleazer, Jr. was, at the time the complaints
in these consolidated actions were filed, an elected Trustee and
official of the Nation, and was sued by the State
in his official capacity only. (Stip. No. 6.) By Order
of this Court dated April 17, 2007, Mr. Eleazer was
dismissed from this action as a defendant, and Randall King
was substituted as a party defendant in the place of
Mr. Eleazer. Defendant Lance A. Gumbs was, at the time
the complaints in these consolidated actions filed, and is now
an elected Trustee and official of the Nation, and is
being sued by the State in his official capacity only.
(Stip. No. 7.) Defendant Frederick C. Bess was, at the
time the complaints in these consolidated actions were filed, chairman
of the Shinnecock Nation Casino at Westwoods Authority, and is
now an elected Trustee of the Nation, and is being
sued by the State in his official capacity only. (Stip.
No. 8.) By Stipulation and Order of this Court dated
March 21, 2007, Karen Hunter, who is currently Chairman of
the Shinnecock Nation Gaming Authority (the “Gaming
Authority”),
formerly known as the Shinnecock Nation Casino at Westwoods Authority,
was substituted as a party defendant in this action in
the place of Phillip D. Brown, V, who was the
successor to defendant Mr. Bess as Chairman of the Gaming
Authority.
B.
THE WESTWOODS PARCEL
*8
The Shinnecock Tribe owns a parcel of land, commonly known
as “Westwoods,”
which is approximately 80 acres in total area, located in
the Hampton Bays area within the boundaries of the Town.
(Stip. No. 15.) Westwoods is located approximately 85 miles east
of New York City. (Stip. No. 37.)
Westwoods
consists of three tax lots: (a) Suffolk County Tax Map,
District No. 0900, Section 186, Block No. 2, Lot No.
38 (“Parcel
A”);
(b) Suffolk County Tax Map, District No. 0900, Section 187,
Block No. 2, Lot No. 78 (“Parcel
B”);
and (c) Suffolk County Tax Map, District No. 0900, Section
207, Block No. 1, Lot No. 1 (“Parcel
C”).
(Stip. No. 16; D259,FN6
at 4; D156 a, b, c, d.) Parcel A is
property to the north of Newtown Road and south of
Great Peconic Bay; this parcel is about 41.5 acres. Parcel
B is property north of Sunrise Highway and south of
Newtown Road; this parcel is about 36.7 acres. Parcel C
is property south of Sunrise Highway and is about 2.0
acres. (D259 at 8; D264; D156d; Stip. No. 16; Tr.
3292-94.)
FN6.
Exhibit numbers preceded by the letter D (e.g.,
D259) represent exhibits introduced by defendants; exhibit numbers preceded by
the letter “T”
represent exhibits introduced by the Town; exhibit numbers preceded by
the letter “S”
represent exhibits introduced by the State.
The
Nation currently has fee simple title to Westwoods. (Stip. No.
17.) The Nation currently occupies and possesses Westwoods. (Stip. No.
18.) Westwoods is not part of any reservation established by
New York.FN7(Stip.
No. 20.) Westwoods does not appear in the records of
the BIA as Indian fee land, the title to which
is restricted against alienation in accordance with 25 U.S.C. §
177. (Stip. No. 24.) Westwoods is not currently under federal
superintendence, as that term is used in connection with land
that is a “dependent
Indian community”
for purposes of 18 U.S.C. §
1151(b). (Stip. No. 25.) Westwoods
is not a “dependent
Indian community”
within the meaning of 18 U.S.C. §
1151. (Stip. No. 26.) Westwoods was not set aside by
the federal government for the use of Indians as Indian
land, as that term is used in determining whether land
is a “dependent
Indian community”
for purposes of 18 U.S.C. §
1151(b). (Stip. No. 27.) There exists no express agreement between
the Nation and the United States regarding Westwoods. (Stip. No.
28.). There exists in the Office of the Clerk of
Suffolk County no recorded deed by the Nation, as grantor,
conveying title to all or any part of Westwoods to
anyone, nor is there a recorded deed conveying title to
all or any part of Westwoods to the Nation, as
grantee. (Stip. Nos. 29 and 30.)
FN7.
However, the above-referenced Suffolk County Tax Maps identify both Westwoods
and the Shinnecock Reservation at Shinnecock Neck as “Shinnecock
Indian Reservation.”
(D156a, b, c, d.)
There
are other areas adjacent to, or in the vicinity of,
Westwoods and the Town that are relevant to the instant
litigation: (a) Canoe Place or Niamuck (“Canoe
Place”)
is a name given to a place where Indians formerly
carried their canoes between Shinnecock Bay and the Great Peconic
Bay in what is now Southampton (Stip. No. 35); (b)
Canoe Place is located at the approximate current site of
the Shinnecock Canal in Southampton (Stip. No. 36); (c) Cold
Spring Pond is a body of water within the Town
east of Canoe Place and is located approximately two miles
east of the closest boundary of Westwoods (Stip. No. 38);
(d) Quogue is a hamlet within Southampton to the west
of Canoe Place and is located approximately 6-1/2 miles southwest
of the closest boundary of Westwoods (Stip. No. 39); and
(e) Seatuck is a place located at the southern end
of the current western border of the Town (Stip No.
46), and is located at the current border between the
Town of Brookhaven and Southampton. (Tr. 2580-81; T226.)
C.
WESTWOODS AT THE TIME OF THE FIRST EUROPEAN CONTACT
*9
The Nation was in possession of the lands in and
around Southampton when the first European settlers arrived in 1640.
See
Shinnecock
Indian Nation,
400 F.Supp.2d at 489. In fact, plaintiffs' expert agreed that
the whole Town was owned by the Shinnecocks at the
time of first European contact in 1640. (Tr. 1115-16.)
Moreover, the history of the Town contained in its own
records states that when the first settlers arrived “it
appears that the whole extent of what is now the
town of Southampton was owned by the Shinnecock tribe of
Indians, who were divided into many small bands, and were
living in villages that were without exception situated near the
different creeks or branches of the bays....”
(D3, at II-III.) Thus, at the time of first European
contact, Westwoods was possessed and owned by the Shinnecocks.
D.
THE SETTLEMENT AND FORMATION OF SOUTHAMPTON
By
a Patent granted on April 20, 1635 by the Plymouth
Company (the “Sterling
Patent”),
Lord William Alexander, the Earl of Sterling, obtained undisputed title,
in the name of the King of England, to the
lands of Long Island. (James P. Lynch, The
Shinnecock and “Westwoods”
in Southampton, New York: An Ethnohistorical Analysis,
Feb. 16, 2005(T12),FN8
at 18-20; Alexander von Gernet, On
the Authority of New York Colonial Governors to Decide on
Matters Relating to Shinnecock Lands and the Town of Southampton,
June 29, 2006(S62), at 6; T29, at 29.)
FN8.
Pursuant to stipulation by the parties, the contents of the
expert reports were deemed to have been read into the
record in lieu of direct testimony. (Joint Pretrial Order, at
30.) Each party was permitted to conduct a direct examination
of its expert witness in order to familiarize the Court
with the opinions of the expert and the witness was
then subjected to cross-examination.
James
Farrett was the duly appointed agent of the Earl of
Sterling, who was granted the right and authority to convey
lands within the Sterling Patent. (T12, at 21-22; S62,
at 6; T32, at 50-51; Tr. 2441.) By deed dated
April 17, 1640, Farrett granted free leave and liberty to
four named English colonists and their associates to possess and
improve a parcel of “eight
miles square”
of land on Long Island. (T12, at 22-23; S62, at
6; T33, at 45-47.) The deed, dated April 17, 1640,
also granted to the four named English colonists and their
associates the right to “make
purchase (in theire owne names at theire owne leisure from
any Indians that Inhabit or have lawfull right to any
of the aforesaid land) all or any pt thereof, and
thereby assure it to themselves and their heyres as theire
Inhabitance for ever.”FN9(T12,
at 22-23; S62, at 6-7; T33, at 46.).
FN9.
In this Memorandum and Order, unless otherwise noted in brackets,
the Court has maintained the original spelling and grammar contained
in these colonial era documents.
By
a confirmation document dated July 7, 1640, Farrett specified the
bounds of the aforesaid “eight
miles square”
of land that constituted the plantation that came to be
known as Southampton (the “Southampton
plantation”).
(T33, at 49-50; T12, at 23-24; S62, at 7.) In
particular, the confirmation of July 7, 1640 specified that the
westerly bounds of the “eight
miles square”
of the Southampton plantation was “the
place where the Indians drawe over their canoes out of
the north bay over to the south side of the
island,”i.e.,
Canoe Place. (T33, at 49; T12, at 23-24.) The
lands constituting the Southampton plantation as of 1640 were thus
situated exclusively to the east of Canoe Place. (T33, at
49-50; T12, at 24; Katherine A. Hermes, Rebuttal
Report to Alexander von Gernet's Report Entitled “On
the Authority of New York Colonial Governors to Decide on
Matters Relating to Shinnecock Lands and the Town of Southampton,”
Aug. 21, 2006(D91), at 5; Tr. 2441, 2175.)
*10
On December 13, 1640, certain Shinnecock Indians, including tribal leadership,
executed a deed that conveyed to English colonists all of
the Shinnecock Tribe's right, title, and interest in lands bounded
on the west by “the
place where the Indians hayle over their cannoes out of
the North bay to the south side of the Island,”i.e.,
Canoe Place, (the “1640
Deed”)
(S66, at 266-67; T12, at 31; T181, at 266-67; S62,
at 7-8.) Only lands located to the east of Canoe
Place are described in the 1640 Deed. (Stip. No. 21.)
In
or about 1644, the “Towne
of Southampton”
was accepted into the jurisdiction of the Colony of Connecticut,
under terras and provisions set forth in a document entitled
“Ye
Combynation of Southampton Wth Har[t]ford.”(T12,
at 26-27; D95; Katherine A. Hermes, Report
on the History of Land Transactions Between the Colony of
Connecticut and the Long Island Indian Tribes in the Seventeenth
Century,
June 30, 2006(D25), at 20; Tr. 2443.)
The
terms of the “Ye
Combynation of Southampton Wth Har[t]ford,”
provided, inter
alia,
that “if
[u]pon vewe of such orders as are alreddy established by
ye General Court for ye Jurisdiction of Connectecoate, there be
found any difference therin from such as are also for
ye present settled in ye Towne of Southampton, the said
Towne shal ha[v]e libertie to regulate themsel[v]es acording as may
be most sutable to their owne comforts and con[v]eniences in
their own judgment, provided those orders made by them concerne
themsel[v]es only and intrence not [u]pon ye interestes of others
or ye Generall Combination of ye [u]nited Collonies, and are
not cross to ye rule of riteousness. The like powre
is also reser[v]ed [u]nto themsel[v]es for the future, for making
of such orders as may concerne their Towne ocations.”(D95,
at 567; T12, at 27.)
By
reason of these terms and provisions, Southampton, as an already-existing
town, had the most liberal association with the Colony of
Connecticut of all the towns and plantations under that colony's
jurisdiction. (T12, at 27.) Defendants' expert witness, Katherine A. Hermes,
testified that “ordinarily,
when Connecticut founded towns, they were founded from scratch,”
but Southampton existed as a town prior to its combination
with Connecticut and was permitted to keep the laws it
had enacted prior to the combination so long as those
laws were not in conflict with the interests of others
or the laws of the United Colonies.FN10(Tr.
2456; D91, at 5.)
FN10.
Although Professor Hermes testified about the concept of “personal
jurisdiction”
in the Colony of Connecticut, there is no order or
law that provides that the Colony of Connecticut retained jurisdiction
over its inhabitants regardless of where those inhabitants might travel.
(Tr. 2593-94.)
In
1650, the Connecticut General Court enacted an order that makes
reference to an earlier order that prohibited individuals from buying
any land from Indians, either directly or indirectly, under any
pretense whatsoever (the “1650
Order”).
(D46.) The 1650 Order remained the law of the Colony
of Connecticut until 1663, when the Connecticut General Court enacted
an order that replaced it. That successor order prohibited purchases
of Indian land by individuals, except with allowance of the
General Court. (D100; D25, at 20-21; Tr. 2453.) New England
colonies other than Connecticut had similar laws and these laws
were very widely published and understood. (D25, at 3.)
E.
THE OGDEN AND TOPPING TRANSACTIONS INVOLVING WESTWOODS
*11
As set forth below, in the 17th century, there were
two transactions in which the Nation sold lands west of
Canoe Place, including Westwoods, to non-Indians and the Town subsequently
acquired those lands.
(1)
THE OGDEN PURCHASE
As
of May l2,1659, the western boundary of Southampton was Canoe
Place. (T12, at 24; T33, at 49-50; T181, at 266-67;
D91, at 5.) On May 12, 1659, Sachem (Chief) Wyandanch
and his son, on behalf of the Shinnecocks, conveyed the
lands west of Canoe Place [west to Peaconock], to John
Ogden, by an instrument that is referenced herein as the
“Ogden
Deed.”
This acquisition by Ogden became known as the “Quogue
Purchase”
or the “Ogden
Purchase.”
(T50, at 162; T12, at 37; Tr. 872-76, 1067.)
At
the time of the Quogue Purchase, Ogden was a Southampton
proprietor who was also a magistrate to the Connecticut General
Court. (T12, at 37; T59, at 70-71; Tr. 2557; D25,
at 24; D136, at 314; D137, at 334.) Moreover, at
that time, Sachem Wyandanch possessed political authority over the Shinnecocks,
including authority to convey the lands west of Canoe Place
to Ogden. (T12, at 33-36; Tr. 889-93, 895-896; T45, at
198; T46; T47, at 295; T49; S62, at 8 &
n. 9.) For example, on May 15, 1657, approximately two
years before the Quogue Purchase, the Connecticut Colony General Court
acknowledged that the Shinnecocks recognized the “Montacutt
Sachem”
(i.e.,
Sachem Wyandanch) as their Sachem.FN11
(T47, at 295; Tr. 2541.)
FN11.
On September 19, 1666, Thomas Halsey, a Southampton proprietor, (T181,
at 266), reported that during a “time
of the trouble in this towne of Southampton by reason
of murder committed by the Indians,”
he witnessed Shinnecock Sachem Mandush cut up a turf of
ground in Southampton and deliver it to Sachem Wyandanch, that
he also saw Sachem Mandush and other Shinnecocks stroking Sachem
Wyandanch on the back, and that since that time, Sachem
Wyandanch “hath
acted upon ye aforesaid Interest given to him as by
letting and disposing of land at Quaquanantuck and else where....”
(T46, at 158.) On September 19, 1666, Thomas Saire (Sayre),
a Southampton proprietor, (T181, at 266), reported that he had
witnessed all that was reported by Halsey, except for the
delivery of turf by Sachem Mandush to Sachem Wyandanch, and
also attested that “when
Mandush gave up his right to Wyandanch and stroaked him
on the back, Mandush alsoe told Wyandanch that now hee
would bee all one dogge.”(T46,
at 158.)
The
lands west of Canoe Place, conveyed by Sachem Wyandanch and
his son to Ogden on May 12, 1659, were not
part of the Colony of Connecticut at the time of
that conveyance, as they were outside the territorial limits of
Southampton. (T50, at 162; T12, at 24, 26, 32; T33,
at 49-50; T34; D91, at 5; D95.) The lands conveyed
by Sachem Wyandanch and his son to Ogden included Westwoods.
(T12, at 37; D25, at 2, 24; T50, at 162;
Tr. 876, 2474.) There is nothing in the historical record
reflecting or suggesting that at any time prior to this
litigation, the Shinnecock Tribe in any way disputed or contested
Sachem Wyandanch's authority to act on their behalf FN12
(Tr. 896.)
FN12.
In its 1978 Memo (discussed infra
), the Shinnecock Indian Nation referenced that the Ogden Deed
was from “Shinnecock
sachem Wiandance”
without questioning Sachem Wyandanch's authority over the Shinnecocks. (T229, at
page “I”
of “Index
to Appendices.”)
Prior to this litigation, the Shinnecock Tribe has never challenged
or contested the validity of the conveyance by Sachem Wyandanch
and his son, i.e.,
the Quogue Purchase, to Ogden. (Tr. 896, 2544.)
Sachem
Wyandanch died in 1659. (S69, at 57; S62, at 9
n. 13.) By an order dated June 7, 1665, the
Court of Sessions in Southold directed that the annual sum
of twenty-five shillings per year, which was to be paid
to “ye
late Sachem Wyandance,”
pursuant to the terms of the Ogden Deed, (T50), should
be made to the “sunk
squaw daughter & heire to the said sachem.”(T56,
at 171; T57; T12, at 38.) Thus, one can infer
from the order of June 7, 1665 that the Court
of Sessions considered the Ogden Deed a valid, lawful, and
effective instrument. FN13
FN13.
It appears from the historical record that the conveyance to
Ogden of lands west of Canoe Place was made in
part payment of a fine imposed on the Shinnecocks by
Connecticut Colony prior to September 8, 1657, by reason of
the participation by certain Shinnecocks in an incident of arson.
(T12, at 37-38; T52, at 231; T53; T54, at 180;
T56; T57; T58, at 166-67; D183, at 62; Tr. 877-81,
883-85, 888.) This conclusion is supported by a number of
evidentiary sources, including the following: (1) by an order issued
by the Connecticut General Court on May 20, 1658, Ogden
was one of four magistrates authorized and appointed to collect
and distribute the proceeds of the arson fine imposed previously
on the Shinnecocks (D57; Katherine A. Hermes, Rebuttal
Report Responding to ‘The
Shinnecock and ‘Westwoods'
in Southampton New York: An Ethnohistorical Analysis,’
by James P. Lynch and ‘Supplement
to ‘The
Shinnecock and ‘Westwoods'
in Southampton, New York: An Ethnohistorical Analysis,
Aug. 21, 2006 (Revised for typographical corrections Sept. 28, 2006)
(D32), at 22); (2) according to The
History and Archaeology of the Montauk Indians,
published in 1979 by the Suffolk County Archaeological Association, “[t]he
land [of the Quogue Purchase] was sold in part payment
of the fire money owed by Shinnecock Indians. Wyandanch had
assumed the debt of 400 pounds and was paying in
land-Shinnecock land for a Shinnecock debt.”
(T51, at 65; T12, at 37); and (3) in his
treatise entitled The
Algonquian Peoples of Long Island From Earliest Times to 1700,
historian John Strong notes that “[John]
Ogden had apparently purchased the debt from the Southampton officials
who were unsuccessful in forcing payment from the Shinnecocks”
prior to the Quogue Purchase. (T52, at 231.)
Sometime
between May 12, 1659 and February 2, 1663, Ogden sold
the lands of the Quogue Purchase to John Scott. (T12,
at 38; T53; S62, at 9 & n.ll; Tr. 2472.)
On February 2, 1663, Scott sold the lands of the
Quogue Purchase to the proprietors of Southampton.FN14(T53,
at 175-76; T66 at p. 54; S67, at 175-77; T12,
at 38-39; S62, at 9; Tr. 2472.) Upon the sale
of the lands of the Quogue Purchase by Scott to
the proprietors of Southampton, Ogden confirmed in writing that “Wyandanch
delivered unto him quiet seizen and possession of [those] lands
...
all the lands above recited in part of pay of
the four hundred pounds the Shinecock Indians stood indebted, and
the said Wyandanck bound for the said Indians.”FN15(T53,
at 176; T12, at 38.)
FN14.
References to “Quaganantick”
in the May 1663 records of the Connecticut General Court
suggest that Connecticut knew of Southampton's interest in lands west
of Canoe Place. (D100, at 402; Tr. 2568-70.)
FN15.
During the trial of the 1667 Action in which Southampton
sued Southold to, inter
alia,
confirm its title to certain lands west of Canoe Place
and west of Westwoods (discussed infra
), Ogden testified under oath, and once again confirmed how
“hee
came seized of the Land in question, that it was
about the firemoney the Shinnacock Indyans being to pay a
Certaine sume of money for the Mischiefe done by them.
The Montauks Sachem being bound for them tooke the Land
in question into hi[s] possession, and upon some Consideracion made
it over to Mr. Ogdon, and Mr. Ogdon saith all
his Right is conveyed to Southton,”i.e.,
Southampton. (D183, at 62.)
(2)
THE TOPPING PURCHASE
*12
As of April 10, 1662, the western boundary of the
Town was Canoe Place. (T12, at 24, 39-40; T58, at
167-68; D91, at 5.) On April 10, 1662, Sachem Wyandanch's
political successor, Weany Sunk Squaw, and others, on behalf of
the Shinnecocks, sold and conveyed lands west of Canoe Place
to Thomas Topping. This transaction has become known as the
“Topping
Purchase.”
FN16(T191;
T12, at 39-41; Tr. 896-98; T58, at l67-68; S62, at
9.) At the time of the Topping Purchase, Topping was
a Southampton proprietor who was also a magistrate to the
Connecticut General Court. (T12, at 39; T59, at 70-71; Tr.
2558; D25, at 24.)
FN16.
In its 1978 Memo (discussed infra
), the Shinnecock Indian Nation described the Topping Deed as
being from “Weany
Sunk squaw, female Shinnecock sachem.”(T229,
at page “i”
of “Index
to Appendices.”)
The
lands of the Topping Purchase were situated west of Canoe
Place, and included the lands of the Quogue Purchase, including
Westwoods. (T12, at 39-40; Tr. 899; T58, at 167-68; T191;
D25, at 24-25; Tr. 2474.) The lands that were the
subject of the Topping Purchase were not part of the
Colony of Connecticut at the time of the Topping Purchase
because they were situated outside the then-territorial limits of Southampton.
(T12, at 24, 26, 32, 41; T33, at 49-50; T34,
at 31; T58, at 167-68; T61; James P. Lynch, Supplement
to The Shinnecock and “Westwoods”
in Southampton, New York: An Ethnohistorical Analysis,
June 29, 2005(T13), at 12; D91, at 5; D95.) The
western boundary of the lands identified in the Topping Purchase
was “Seatuck,”
which is the modern-day border between Southampton and Brookhaven. (T12,
at 39; Tr. 897-98; T58, at 168; T61; T191; Stip.
No. 46.) The Topping Deed recited that the consideration for
the Topping Purchase was “four
score fathoms of wampum, or other pay, equivelent.”(T58,
at 168; Tr. 899, 2183-84.)
By
this purchase, Topping acquired the same rights to land west
of Canoe Place that were included in the Ogden Purchase.
(T12, at 41; S62, at 10; D91, at 7.) Whatever
the reason for these overlapping deeds (which both included Westwoods),
there is no question that these lands were sold by
the Shinnecock Tribe and subsequent determinations by governors, discussed infra,
confirmed such sale when issues arose related to these lands.FN17
FN17.
Plaintiffs made a number of challenges to the validity of
the Ogden and Topping transactions during the trial. Although some
of those challenges involve disputes over historical facts (such as
whether Sachem Wyandanch had authority to act on behalf of
the Shinnecock Tribe), the Court has addressed these issues in
the Conclusions of Law, rather than the Findings of Fact,
for purposes of organizational convenience.
F.
COLONIAL ERA DOCUMENTS AND EVENTS FOLLOWING THE OGDEN/TOPPING TRANSACTIONS
Following
the Ogden and Topping transactions, there were several occasions in
the 17th century during which issues relating to those lands
were brought to the attention of the Governor of the
Province of New York and, in one instance, a court.
As set forth below, on each of these subsequent occasions,
the prior sale of such land to Southampton was confirmed.
(1)
THE NICOLLS DETERMINATION
In
a document dated September 17, 1666, several Shinnecocks recorded their
“protest”
over the 1662 sale of lands west of Canoe Place
by Weany (Sunk Squaw) and other Shinnecocks to Captain Topping,
claiming that they were “the
true proprietors of the said lands.”(T61;
Tr. 2180-83.) In the 1666 protest document, the Shinnecock signatories
sought to have Governor Richard Nicolls (whom they expressly acknowledge
to be the “hon
(bbl) & discreet Governor of this Island”)
determine that they were the “true
proprietors”
of the lands of the Topping Purchase, and that they
should receive payment from the Southampton proprietors, for their conveyance,
if so directed by Governor Nicolls.FN18
(T61; Tr. 2180-83.)
FN18.
This dispute also was recounted in the Town's records. Specifically,
in the Introduction to the First Book of Records of
the Town of Southampton, William S. Pelletreau, Southampton Town Clerk,
wrote that the land within the bounds of the Town
“was
honorably purchased of its aboriginal owners”
by the white settlers. (D3, at III.) Subsequently, in the
Introduction to the Third Book of Records of the Town
of Southampton, Pelletreau refers to the “settling
of the western part of the town,”
and states, “[a]s
has been stated in a former volume, that portion west
of Canoe Place was purchased from its Aboriginal owners in
1666, and the controversy between the Town and Capt. Thomas
Topping was decided by a reference to Richard Nicol, Governor
of the Province.”(D153,
at II.)
*13
Notwithstanding its use of the word “protest,”
the September 17, 1666 document declares the intention of its
Shinnecock signatories to “impart
and assigne all our said Interest in ye said lands
[of the Topping Purchase] ...
unto our ancient and loving ffriends the Townes men of
Southampton to them and their successors for ever.”(T61;
Tr. 2182.) Thus, by the protest document, the Shinnecock signatories
were not seeking to unwind, invalidate, or reverse the conveyance
of land to Topping, or to obtain the lands of
the Topping Purchase for themselves, but instead were merely seeking
to be paid, i.e.,
to receive the “four
score fathom of wampum”
recited as consideration in the Topping Deed. (T61; Tr. 2182-84.)
Subsequent
to the September 17, 1666 protest document, and on October
3, 1666, Governor Nicolls issued a determination (the “Nicolls
Determination”),
in which he concluded and determined a “difference”
between the “town
of Southampton”
and “Capt
Thomas Topping.”
(T66, at 54-56; Tr. 2177-79.) In his determination, Governor Nicolls
noted that he had reviewed several deeds, including the deed
from “some
of Shinecock Indians to Capt Topping,”i.e.,
the Topping Deed, and the deed from “John
Scott to Southampton men,”
i.e.,
the 1663 deed conveying the lands of the Quogue Purchase
to Southampton. (T66, at 54; Tr. 2185-86; S62, at 10.)
In the Nicolls Determination, Governor Nicolls determined, inter
alia,
that “all
the right and interest that ye said Capt Thomas Topping”
had by virtue of the Topping Deed “is
belonging, doth and shall belong unto the town of Southampton
...
and their successors forever,”
(T66, at 54.)
By
virtue of this language, Governor Nicolls determined that Southampton was
the rightful owner of the lands of the Topping Purchase.
(T66, at 54; T12, at 47-49; T13, at 13-15; S62,
at 10-11.) In fact, in the Nicolls Determination, Governor Nicolls
promised to defend the Town in its “peaceable
enjoyment”
of the lands of the Topping Purchase “[a]gainst
all other claims whatsoever.”(T66,
at 55; T12, at 47-49; T13, at 13-15; Tr. 2564.)
Westwoods
is located within the boundaries of the lands that were
the subject of the Nicolls Determination. (Stip. No. 62.) At
the time he issued the Nicolls Determination, Governor Nicolls was
the prevailing sovereign authority within the Province of New York,
which included Long Island. (T12, at 45-49; T13, at 13;
T62; Tr. 1203-04, 2561, 2189-90; S62, at 19-25.) Governor Nicolls
had been appointed the first English governor of the Province
of New York on April 2, 1664, by virtue of
a commission from the Duke of York. (S72; S62, at
19; Tr. 2189-90.) In the Nicolls Determination, Governor Nicolls ordered,
inter
alia,
Southampton to pay to the “Indians
(concerned to receive it)”
the sum of “four
score fathoms of wampum,”
which was precisely the same amount specified in the Topping
Deed as consideration to be paid to the Shinnecocks for
the lands of the Topping Purchase. (T66, at 55; T58,
at 168; S62, at 10-11; Tr. 901, 2183-84.)
*14
The Nicolls Determination does not explicitly or implicitly contest, challenge,
or question in any way, the validity, legality, or effectiveness
of either the Topping Deed or the deed from Scott
to the Town, for the lands of the Quogue Purchase.FN19(T66;
T13, at 14; Tr. 2192-93, 2560.) Governor Nicolls possessed law-making
authority to promulgate the Duke's Laws and he could settle
disputes. (T12, at 45-46; S62, at 19-25; Tr. 2189-91; D91,
at 11-12.) Governor Nicolls, under the Duke of York's proprietorship,
also had the authority to address the question of Indian
land purchases. (S62, at 20-24.) There is nothing in the
historical record to suggest that the Shinnecock Tribe has ever
challenged, in any way, the validity, legality, or effectiveness of
the Nicolls Determination. (Tr. 908.)
FN19.
The Nicolls Determination was made by Governor Nicolls more than
18 months after the date of a letter to Governor
Nicolls from Connecticut Colony Secretary John Allyn (the “Allyn
Letter”),
advising that “by
the established order of this [Connecticut] Colony ...
no land was to be purchased to the perticuler use
of any person, without the consent of or Generall Courte,
and all such purchases to be null in lawe.”(D71;
T66; Tr. 1200-04, 2194-95.) Thus, at the time of the
Nicolls Determination, Governor Nicolls, by virtue of the Allyn Letter,
was aware of the existence of a Connecticut General Court
order pertaining to the purchase of lands from Indians. (Tr.
2193-95; D25, at 26; D91, at 11-12.) The Allyn Letter
does not specify the date or any other identifying feature
of the “established
order of this Colony”
to which it makes reference, but Professor Hermes testified that
the Allyn letter could only have been referring to either
the 1650 or 1663 orders of Connecticut Colony. (D71; Tr.
2553.) Professor Hermes also acknowledged that the Allyn Letter was
written at a time when Long Island was no longer
under the jurisdiction of Connecticut Colony. (D25, at 25-26; Tr.
2552.)
Subsequent
to, and as explicitly directed by the Nicolls Determination, by
a written instrument dated November 6, 1667, Topping assigned and
delivered to Southampton the Topping Deed, and all his right,
title, and interest in the lands of the Topping Purchase,
i.e.,
the lands from Canoe Place to Seatuck, including Westwoods. (T197;
T13, at 15; Tr. 901-02; 2564-65.) Subsequent to the Nicolls
Determination, and on February 22, 1667 (N.S.FN20),
several Shinnecock Indians, including Weany Sunk Squaw, Accobacco, and others,
confirmed and acknowledged (i) their April 10, 1662 sale of
lands to Topping; (ii) that Topping had sold those lands
to Southampton; (iii) that Governor Nicolls had ordered the Town
to pay “fourscore
fathom of wampum”;
and (iv) that they had received such payment from the
Town. (S70; S70A; S62, at 12; D91, at 10; Tr.
902-05, 2198-99.) The Shinnecock signatories of the February 22, 1667
(N.S.) document confirmed also that they were “fully
contented with the bargaine origeinally made with Capt. Topping.”
(S70; S70A; S62, at 12; T13, at 16; Tr. 902-03,
905, 2198-99; 2565-56.) The document ended by stating that “wee
will defend the s'd Southton men in the possession and
enjoyment of the premisses from the clayms of any other.”(S70;
S70a.)
FN20.
Until 1752, when the Gregorian calendar still used today was
adopted, England and its colonies followed the Julian calendar, under
which March 25 was the beginning of the new year.
(D32, at 28 .) In this Memorandum and Order, “N.S.”
indicates that the date is expressed using the modern, Gregorian
calendar (rather than the date expressed in the original document).
(2)
THE 1667 ACTION COMMENCED BY SOUTHAMPTON AGAINST SOUTHOLD
In
1667, a trial was conducted in the Court of Assizes
for the Colony of New York (the “Court
of Assizes”)
in an action commenced by the inhabitants of Southampton against
the inhabitants of Southold (the “1667
Action”).
(D183, at 59; Stip. No. 64.) The 1667 Action concerned
Southampton's contention that it was the owner of lands known
as Aquebauke Meadows, and Southampton's claim that Southold had trespassed
on such lands. (D183, at 59; Tr. 906, 2574-75.) The
Aquebauke Meadows were situated to the west of Westwoods, within
the lands of the Topping Purchase. (Stip. Nos. 62, 65;
Tr. 2576.) During the trial of the 1667 Action, and
in order to prove its claim of ownership of the
Aquebauke Meadows, Southampton produced the Topping Deed, and stated that
the Topping Deed had been assigned to the Town. (D183,
at 60; Tr. 906-07; 2576.) Southampton also introduced the Nicolls
Determination, and contended that Governor Nicolls “had
put a decision to this matter already, when it was
before him upon Complaint of the Towne against Captain Tapping.”(D183,
at 61; T12, at 49; Tr. 907-08, 2576-77.)
*15
The jury in the 1667 Action rendered a unanimous verdict
in favor of plaintiff Southampton, and Southampton's title to the
Aquebauke Meadows was thereby confirmed. (D183, at 62; Tr. 908.)
The jury's verdict in the 1667 Action confirmed the validity,
legality, and effectiveness of the Topping Deed, and its subsequent
assignment to Southampton, as well as the Town's ownership of
all lands included within the Topping Purchase, including the Aquebauke
Meadows and Westwoods.
(3)
THE 1676 ANDROS PATENT
On
July 1, 1674, Major Edmund Andros was appointed governor of
the Province
of New York by a commission from the Duke of
York. (S62, at 25.) On November 1, 1676, New York
Colonial Governor Edmund Andros issued a Patent (the “Andros
Patent”)
to the proprietors of Southampton. (T188, at 279-80; T12, at
49-50; S62, at 14; Tr. 2202-03.) Among other things, the
Andros Patent confirmed the existence of “a
certaine Towne ...
commonly called and knowne by the name of South Hampton.”(D188,
at 279.) The Andros Patent confirmed that the “certaine
Tract of Land, thereunto belonging”
to Southampton extended from Seatuck on the west to Wainscott
(the border between Southampton and East Hampton) on the east,
which are basically the east and west boundaries of the
Southampton as they are known today. (T188, at 279; T12,
at 49-50; S62, at 14; Tr. 908-11.) The western boundary
of the tract of land belonging to the Town, as
specified by the Andros Patent, is identical to the western
boundary of the lands specified in the Topping Deed, i.e.,
“Seatuck.”
(T188, at 279; T58, at 167-68; T12, at 50 n.
12; Tr. 2204, 2208-10, 2580-81.) Westwoods is located within the
boundaries of the “certaine
Tract of Land”
described in the Andros Patent. (Stip. No. 77; Tr.
2506-07.)
In
his Patent, Governor Andros declared that he does “Ratifie
Confirme and grant, unto [list of individuals] ...
as Patentees for and on the behalfe of themselves and
their Associates the ffreeholders and Inhabitants of the said Towne,
their Heires, Successors and Assignes, All the aforementioned Tract of
Land ...
and of every part and parcel thereof, to the said
Patentees and their Associates, their Heires Successors and Assignes ...
for ever....”
(T188, at 279-80.) The Andros Patent also provided that “if
it shall so happen that any part or parcell of
the Lande within the bounds and Limits afore described be
not already Purchased of the Indyans It may bee purchased
(as occasion) according to Law....”
(T188, at 280.) During the colonial era, New York governors
frequently exercised their authority to decide on the validity of
purchases from Indians and to impose settlements. (S62, at 27.)
There is no historical evidence that the Shinnecock Tribe or
any of its members ever challenged or contested, in any
way, the validity, legality, or effectiveness of the 1676 Andros
Patent. (Tr. 911.) The Colony of Connecticut had no jurisdiction
over the Province of New York at the time the
Andros Patent was issued. (Tr. 1205.)
*16
Accordingly, the 1676 Andros Patent, especially when considered in the
context of the prior transactions and documents involving Westwoods, confirmed
Southampton's ownership of all lands west of Canoe Place, including
Westwoods.
(4)
THE 1686 DONGAN PATENT
In
January of 1683, Colonel Thomas Dongan received from the Duke
of York instructions and a commission constituting him the Governor
of the Province of New York. (S62, at 28.) In
1686, Governor Dongan received a new commission and instructions directly
from the King of England, which granted him certain powers
and authority. (S72, at xvii, 177-78; S62, at 28-29; S74.)
Governor Dongan was granted full power and authority “to
make, constitute and ordain Laws, Statutes and Ordinances for the
publick peace, welfare & good Government of our said Province
and of the people and inhabitants thereof.”(S72,
at xvii; S62, at 28-29; S74.)
On
December 6, 1686, Governor Dongan issued a Patent (the “Dongan
Patent”)
to the proprietors of Southampton. (T69; S62, at 15-18; T12,
at 50-51.) The term “ffreeholders,”
as used in the Dongan Patent, described individuals who were
the proprietors of Southampton. (Tr.2294.) There is nothing in the
Dongan Patent (relating to Southampton's title) that is inconsistent with
the scope of Governor Dongan's authority, as set forth in
his 1686 commission and instructions from the king. (S62, at
29.) The Dongan Patent, inter
alia,
confirmed and reiterated the provisions of the Andros Patent, including
its description of the “certaine
tract of Land”
belonging to Southampton, running from Wainscott on the east to
Seatuck on the west. (T69, at 385; T188; Tr. 911-12,
2213-14, 2588-89; T12, at 50-51.)
The
Dongan Patent recited that it was issued in response to
an application submitted by Major John Howell, a freeholder of
Southampton, and one of the patentees under the Andros Patent,
to “confirm
unto ye ffreeholders of said Towne in a more full
& ample manner all the aboverecited tracts and parcells of
land within the limitts and bounds aforesaid and finally determine
the difference between the [I]ndyans and the ffreeholders of the
said towne of Southampton.”(T69,
at 387; Stip. No. 72.) The Dongan Patent recited that
Governor Dongan had “examined
the matter in variance between the ffreeholders of the said
Towne of Southampton and the [I]ndyans and do finde that
the ffreeholders of the Towne of Southampton aforesaid have lawfully
purchased the lands within the Limitts and bounds aforesaid of
the [I]ndyans and have payd them therefore according to agreement
so that all the [I]ndyan right by virtue of said
purchase is invested into the ffreeholders of the Towne of
Southampton aforesaid ....“
(T69, at 387-88; T12, at 50; S62, at 15-16; Tr.
911-13, 2218-19.) The “lands
within the Limitts and bounds aforesaid”
referenced in the Dongan Patent are stated explicitly to be
the lands of Southampton, from Wainscott on the east to
Seatuck on the west.FN21(T69,
at 385, 387; S62, at 17; Tr. 2217.)
FN21.
Although Professor Hermes stated that because the Dongan Patent was
issued 12 days after the confirmation of the 1640 Indian
deed it can reasonably be inferred that the dispute involved
lands east of Canoe Place, (Tr. 2590), the Court rejects
that speculative conclusion and, instead, relies upon the above-referenced description
of the land contained in the Dongan Patent that contradicts
Professor Hermes's conclusion.
*17
As was the common practice at the time, the Dongan
Patent was recorded in the Secretary's Office for the Province
of New York and perused by the Attorney General, who
found “Nothing
Contained therein prejudiciall to his Majys Interest.”(S62,
at 29; S65 at 394.) The Dongan Patent created and
established a body “Corporate
and Politique,”
known as the “Trustees
of the ffreeholders and commonalty of the Towne of Southampton”
(the “Southampton
Trustees”),
which was made up of the freeholders and inhabitants of
Southampton. (T69, at 388.) There is no historical evidence that
the Shinnecock Tribe or any of its members ever challenged
or contested, in any way, the validity, legality, or effectiveness
of the Dongan Patent. (Tr. 913.)
Accordingly,
the 1686 Dongan Patent confirmed Southampton's ownership in all lands
west of Canoe Place, including Westwoods.
(5)
THE 1676 ORDER OF THE COURT OF ASSIZES
On
October 5, 1676, the Court of Assizes noted that the
Town of Southold (“Southold”)
and Southampton had not yet complied with the Law of
1664 and prior orders concerning the taking out of “Grants,
Patents or Confirmations for their Towns or Lande.”(D77,
at 723-24.) By Judgment of the Court of Assizes, dated
October 5, 1676, the Court held that Southold and Southampton
“have
forfeited all their titles, Rights & priviledges to the lands
in the sd Townshipps & if they doe not by
Monday fortnight next (being the 23rd day of this instant
month) send up the acknowledgmt of their past Default &
Resolves & Desire to obey & fulfill the Law &
the severall orders of the Cort of Assizes, for the
taking out their Grants, Patents or Confirmations, as directed by
Law, Then Execution to issue out by Authority of this
Crt for the above forfeiture to the use of his
Maty without further delay”
(the “1676
Judgment”)
(D77, at 724.) The Town complied with the 1676 Judgment,
as well as the Law of 1664 and prior orders
of the Court of Assizes referenced therein, by October 23,
1676, the deadline set by the 1676 Judgment. (D77, at
724.)
There
is absolutely no evidence that the execution of the above-referenced
Judgment of forfeiture, and the actual forfeiture of Southampton's titles,
ever occurred. According to James Truslow Adams's History
of the Town of Southampton,
in 1670, the Southampton titles, including those acquired from the
Indians, “were
declared invalid by the Court of Assize[ ] unless renewed
under the new government.”(D42,
at 89.) The foregoing passage confirms that the invalidation of
Southampton's titles was conditional only. In other words, it would
occur only if the 1676 Judgment were executed, if the
Town did not comply with the Judgment by October 23,
1676. (D42, at 89.) The condition expressed in the 1676
Judgment did not occur and, therefore, the forfeiture of Southampton's
land titles never occurred.
G.
USE AND OCCUPANCY OF LAND WEST OF CANOE PLACE, INCLUDING
WESTWOODS
The
Court has carefully examined the evidence to determine what, if
any, use and occupancy of land west of Canoe Place,
including Westwoods, has occurred by the Nation since these colonial
era transactions and events. As set forth in detail below,
based upon that review of the evidence, the Court concludes
that, with respect to the period from the late 17th
century through the 18th century, there is overwhelming evidence that
the Nation occupied land to the east of Canoe Place
during this period and scant, if any, evidence that they
occupied and used land west of Canoe Place, which is
where Westwoods is located. Moreover, even if members of the
Shinnecock Tribe inhabited areas west of Canoe Place at some
time between the 17th and at least the end of
the first three quarters of the 19th century-as asserted by
defendants' habitation witness Dr. Jack Campisi-there is no evidence that
their use or occupancy was exclusive or continuous, and there
is no evidence of how many Shinnecock resided there, or
where, or for how long. For example, as conceded by
Dr. Campisi, there are no records for the period 1743
through 1889 that indicate that the Shinnecock Indians lived west
of Canoe Place, but there are records during that period
that indicate that the Shinnecock Indians lived east of Canoe
Place. (Tr. 2754-57 .) Moreover, Dr. Campisi's conclusions are of
limited value because he completely disregarded and failed to explain
the numerous above-referenced colonial era documents-such as the Ogden Deed,
the Topping Deed, and the Nicolls Determination-that support the conclusion
that the Shinnecocks sold all their lands west of Canoe
Place and resided east of Canoe Place. In short, the
Court finds that there is no evidence of regular or
continuous Shinnecock Indian Nation habitation on Westwoods from 1640 to
the early 20th century. Instead, the use and occupancy evidence
is consistent with the conclusion that the Shinnecock Tribe sold
its rights, title, and interest in the lands west of
Canoe Place in the 17th century and resided east of
Canoe Place. The Court has analyzed the evidence offered by
both parties on this issue and provides below the reasons
for the Court's conclusions.FN22
FN22.
Although the Court has fully considered all the evidence offered
during the trial and has even addressed certain evidence that
it viewed as immaterial, not every single piece of evidence
on this issue (or on the other issues) is referenced
in this Memorandum and Order. To the extent certain evidence
is not referenced, the Court did not deem such evidence
to be probative and did not believe it warranted particular
discussion.
(1)
THE 1703 LEASE LANDS
*18
By an “Indenture”
dated August 16, 1703 (sometimes referred to as the “1000
year lease”),
the Shinnecock Indians acquired from the Town certain usufruct rights,
for a period of 1,000 years, in lands east of
Canoe Place. (T73; Tr. 2755; T12, at 55-57.) The
lands that are the subject of the Indenture (collectively, the
“1703
Lease Lands”)
include the Shinnecock Hills, the areas known as Sebonack and
Cold Spring, and Shinnecock (Great) Neck. (T199; T12, at
55-56, 63, 65, 76, 87; T73; Tr. 2755.) In conjunction
with the execution of the 1703 Indenture, the Shinnecocks executed
a confirmatory deed to the Trustees of Southampton, dated August
16, 1703, in which the Tribe confirmed that it did
“give
grant Remise Release and for ever Quit Claim unto ye
said Trustees ...
all such Right, Estate, title, Interest and Demand whatsoever, as
they ...
and their people had or out [ought] to have of
in or to all that tracte of Land of ye
township of Southampton....”
(T72, at 176; T12, at 52-55; T229, at 9, 17.)
As
of the latter part of the 18th century (circa 1790),
the Shinnecock Tribe was situated only east of Canoe Place,
near Cold Spring, and not west of Canoe Place. (T12,
at 10, 76, 87; T73; T121, at 541; T199; T203;
Tr. 913-21,1220-21.) In the late 18th century, the Shinnecocks constructed,
or caused to be constructed, a meeting house that was
situated to the east of Canoe Place. The meeting house
was completed sometime after September 27, 1791. (T123, at 514;
T199; T13, at 18-19; Tr. 919-21.)
(2)
CANOE PLACE CHAPEL
The
so-called Canoe Place Chapel or Warnertown Chapel was located to
the south of Westwoods, and south of Montauk Highway. (Tr.
1222-23.) The Canoe Place or Warnertown Chapel was not exclusively
a Shinnecock house of worship. (Tr. 1223-24.) The chapel, which
was at one time located next to the burial plot
of the Reverend Paul Cuffee, is located to the south
of Westwoods. (Stip. No. 41; Tr. 1226-29.) There is no
historical evidence that there was a Shinnecock tribal settlement in
the location of the Paul Cuffee burial plot, which is
located to the south of Westwoods. (Tr. 1236-38.) If members
of the Shinnecock Tribe ever lived in the area of
Westwoods in the 17th century, that habitation ended no later
than 1675. (Tr. 2658-60, 2727.) There is no evidence of
Shinnecock tribal habitation on Westwoods itself.
(3)
MISSIONARY RECORDS
Missionary
records do not show that members of the Shinnecock Indian
Tribe or Nation inhabited Westwoods during the 18th century. (Tr.
2730-31.) There are no references in missionary Azariah Horton's journals,
from the 18th century, to Canoe Place or to the
property now known as Westwoods. (Tr. 2731-32; DUO.) The list
of places Horton visited, according to his journals, do not
show a pattern of Shinnecock residence at Canoe Place or
Westwoods. (Tr. 2733-34; D110.) The principal quarters of Long Island
Indian tribes were at cornfields, and for the Shinnecocks, the
cornfields were at Sebonack or Shinnecock Neck, east of Canoe
Place. (Tr. 2734-35.) There were no cornfields at Canoe Place
or Westwoods. (Tr. 2735.) Accounts of the Indian missionary
Samson Occum provide no evidence of Shinnecock habitation west of
Canoe Place. (Tr. 2736-38.) Accounts of the Indian missionary Peter
John do not identify the Shinnecock Indians with the church
at Canoe Place and provide no evidence of Shinnecock habitation
west of Canoe Place or at Westwoods. (Tr. 2738-39.) The
church that the Indian missionary Paul Cuffee was instrumental in
building was located east of Canoe Place. (Tr. 2740.) The
1809 Annual Report of the Board of Directors of the
New York Missionary Society (the “1809
Annual Report”)
refers to a June 9, 1808
communication from Paul Cuffee, reflecting that he ministered to “four
different societies,”
identified as the “Montauk,”
“Cold-Spring,”
“Puspatock,”
and “Islip.”
(T205, at 8-9.) The 1809 Annual Report also reflects a
communication of Paul Cuffee, dated April 17, 1809, which reported
that “[t]he
tribe of Chinecock, or Cold-Spring consists, including children, of 109
persons or there-about”
(T205, at 17.) Paul Cuffee's communications referring to the society
at “Cold-Spring,”
and to “[t]he
tribe of Chinecock or Cold-Spring”
suggest that, as of 1808 and 1809, the Shinnecock Tribe
was situated to the east of Canoe Place, at Cold
Spring.
*19
In the summer of 1902, anthropologist/archaeologist M.R. Harrington undertook extensive
archaeological excavations of numerous Shinnecock Indian sites in Southampton. (T13,
at 19; T200, at 231.) In his 1924 paper entitled
An
Ancient Village Site of the Shinnecock Indians,
prepared for the American Museum of Natural History, Harrington wrote
about his 1902 excavations at an ancient village site situated
east of Canoe Place, on the west bank of Sebonac
Creek. (T200, at 233.) In his paper, Harrington identified this
ancient village site as a Shinnecock village, dating back at
least “three
hundred years ago”
(circa 1602), and noted that “we
have good reason for assuming that the village was Shinnecock
from first to last.”(T200,
at 233, 246; T13, at 19-20.) This ancient village was
situated in the Sebonack/Cold Spring area, east of Canoe Place.
(T13, at 19-20; T200, at 233.) The Shinnecock habitation at
Sebonack, in the mid-17th century, is confirmed by a 1649
agreement between the Town and the Shinnecocks, who are referenced
therein as the “Soaponack
Indyans.”
(T203; Tl3, at 20-21.)
Defendants'
expert Dr. Campisi testified that Indians who attended a church
west of Canoe Place may have walked as much as
twelve miles to attend church, whether they lived east or
west of Canoe Place. (Tr. 2742.) With respect to accounts
of Indian missionary William Benjamin, Dr. Campisi admitted that his
opinion that 70 members of the Shinnecock Tribe were members
of the church in Canoe Place in 1845 may not
be correct and, therefore, may not support his conclusion of
Shinnecock habitation west of Canoe Place in the 19th century.
(Tr. 2743-44, 2746-49.) With respect to Indian missionary James
Downs, Dr. Campisi does not know whether his congregation at
the church in Canoe Place consisted of Shinnecock Indians or
whether it included other Indians and non-Indians. (Tr. 2751.) Downs's
history of Canoe Place indicates that around 1830, there were
non-Indians living in the vicinity of the churches west of
Canoe Place. (Tr. 2751-53; D376.) Downs's History
of the Shinnecocks
indicates that, in 1827, William Benjamin's church at Canoe Place
included both Poosepatuck and Shinnecock Indians. (D108, at 13.) Downs,
in describing the missionary and preaching activities of Azariah Horton
on eastern Long Island between approximately 1742 and 1752 stated,
“[h]e
[Horton] appears to have ben [sic] untiring in his efforts
for the salvation of perishing souls while the principal settlements
of the Indians were at Montauk and Shinnecock and therefore
most of his time was spent there....”
(D108, at 8.) The reference to “Shinnecock”
in this passage, given the entire historical record, is a
reference to lands east of Canoe Place, within the 1703
Lease Lands. (T73; T199; T226.) Thus, Downs concluded that the
principal settlements of the Indians between 1742 and 1752 were
located at Montauk and Shinnecock, not any location west of
Canoe Place.
*20
Edward Ernest Eells's article entitled Indian
Missions on Long Island,
at Part IV, “Azariah
Horton,”
cites Horton's journal for the following proposition: “Although,
as Horton states, Montauk was the home of the largest
group of Indians on Long Island, yet there was a
large group in Southampton at Sebonac....
These were the Shinnecock Indians....”
(D112, at 171 (footnotes omitted).) By 1845 (the date of
publication of Prime's History
of Long Island,
(T248)), Shinnecock Neck was “the
residence of the remnants of the Shinnecock tribe of Indians.
Their church formerly stood beyond the hills, about 3 miles
west, within sight of the isthmus called Canoe Place. It
was afterwards removed a little to the west, at the
spot where the grave of the Rev. Paul Cuffee is
still to be seen....
The Indians having taken up their residence some years ago
on this Neck, removed their church thither, where the Rev.
William
Benjamin
supplies them half the time.”(T248,
at 216-17) (italics in original.) The Presbyterian church at Canoe
Place was “extinct”
by 1845, but a small Congregational church, consisting of only
12 members, still existed in that vicinity. (T248, at 217.)
(4)
LEASE OF TIMBER LANDS WEST OF CANOE PLACE BY THE
NATION
By
the early part of the 19th century, timber resources within
the Town were being rapidly depleted. (T12, at 62-68; T13,
at 32-35; Tr. 932-37; T94; T95; T176; T239, at 223.)
As the Shinnecocks' timber resources to the east of Canoe
Place became depleted, the Shinnecocks sought to obtain from Southampton
the right to cut timber situated to the west of
Canoe Place. (T12, at 97-98; T13, at 32-35; Tr. 932-37.)
At an Indian Trustee Meeting held on April 7, 1808
(the “1808
Trustee Meeting”),
it was voted, in the presence of Shinnecock Trustees and
the Southampton Trustees, that the Shinnecocks lease 120 acres of
land west of Canoe Place. (T134; T12, at 95-97; Tr.
934-37.) The land referred to in the minutes of the
1808 Trustee Meeting was bounded on the west by “Conklin's
Corner.”
(T134; T12, at 96.) Conklin's Corner was a corner formed
by lands of Israel Conklin (who owned lands west of
Canoe Place, but no lands east of Canoe Place), and
it was located in the vicinity of Westwoods, to the
west of Westwoods. (T102; T114; T115; T116; T12, at 79-82,
95-96; Tr. 937-39.) The 120 acres referred to in the
minutes of the 1808 Trustee Meeting included Westwoods. (T12, at
95-97; Tr. 934-38, 945.) The 120 acres described in the
minutes of the 1808 Trustee meeting were to extend from
Conklin's Corner “East
to the Old Field.”
(T134; Tr. 938.) According to James P. Lynch, plaintiffs' ethnohistorical
expert, the “Old
Field”
was also known as “Roger's
Meadow,”
was bounded on the east by Canoe Place Pond, and
extended westward into the Canoe Place Division.FN23(Tr.
938.)
FN23.
There are also references to the leasing of land west
of Canoe Place in the vicinity of Westwoods in documents
relating to the widening of Newtown Road in the 1920s.
In particular, on or about November 1920, civil engineer J.A.S.
Gregg, in response to the “orders”
of the Southampton Town Superintendent, surveyed and laid out part
of Newtown Road, in the vicinity of Westwoods. (T207; T208;
T232, at 350; T13, at 29; Tr. 976-79.) On or
about October 12, 1921, Gregg prepared a statement of land
available and land required for the widening and improvement of
Newtown Road in the vicinity of Westwoods. (T208; Tr. 977-81.)
Gregg's statement references, under the heading “Land
already available for road,”
2021.7 lineal feet of the “Old
road from Mr. Jaques' entrance to land leased to Indians”
and 2362.3 lineal feet of the “Old
road through land leased to Indians.”(T208.)
Gregg's statement also references, under the heading “Land
Required,”
78,849 sf. of “land
leased to Indians.”
(T208.) Gregg's references to “land
leased to Indians”
support the conclusion that the current Shinnecock presence at Westwoods
was the result of the Shinnecocks having obtained a lease
from the Southampton Trustees circa 1808. (T13, at 30-31; Tr.
979-81.) In fact, defendants' title examination and abstracting witness, Mason
Haas, testified that he is not aware of any lands,
other than Westwoods, referred to in any respect as “Indian
land”
as of 1921, the year in which Town Exhibit 208
was created. (Tr. 3064-65.) The Town's widening and improvement of
the portion of Newtown Road that runs across Westwoods, in
the early 1920s, occurred without any objection or protest by
the Shinnecock Tribe. (T13, at 29-31; Tr. 976-81.)
(5)
THE 1822 PETITION TO THE NEW YORK STATE LEGISLATURE
In
an 1822 petition of the Shinnecocks to the New York
State Legislature, the Shinnecocks claim to be the “lawfull
owners of a certain tract of land lying in the
said Town of Southampton ...
bounded on the west by a place called canoe place....”
(T136; T12, at 99; Tr. 923-25.) Thus, this petition referenced
land claims by the Shinnecocks only to the east of
Canoe Place, and no claims of ownership were made by
the Shinnecocks in this petition for any land west of
Canoe Place. (T136; T12, at 99; Tr. 923-925.)
(6)
INDIAN HUTS PHOTOGRAPH
*21
Defendants offered a photograph of purported Indian huts in 1879.
(D377.) However, based upon the description accompanying the photograph,
the huts were not located at or near Westwoods, and
the photograph does not show the presence of a Shinnecock
settlement at Canoe Place. It is also not known whether
these huts were occupied by Indians or non-Indians at the
time. (T247, at 280, 282; Tr. 2775-78.)
(7)
THE 1890 CASSADY
LITIGATION
The
tract of land referred to in the action entitled Trustees
of the Tribe of Shinnecock Indians v. James Cassady,
Supreme Court of the State of New York, Suffolk County,
filed July 21, 1890 (the “Cassady
Litigation”),
includes Westwoods, in whole or in part. (Stip. No. 100;
Tr. 961.) The record of the Cassady
Litigation includes no reference to any Shinnecock claim of subsisting
aboriginal rights; instead, the Findings of the Court reference defendant's
contention that the Shinnecocks had purchased Westwoods. (D2; Tr. 962.)
One of the Findings of the Court in the Cassady
Litigation was that the Shinnecock Tribe had been in “quiet
and peaceable possession of the premises where the alleged trespass
occurred, for upward of sixty years.”(D2,
at “First”
Finding.) The Findings of the Court in the Cassady
Litigation did not include any finding or determination that (i)
the Shinnecocks had aboriginal rights in the subject premises; (ii)
the Shinnecocks had been in possession of the premises since
time immemorial; or (iii) the Shinnecocks had been in exclusive
possession of the premises since any time prior to circa
1830. (T12, at 116-17; D2.) The record of the Cassady
Litigation contains no evidence that the Town was aware, at
any time, of the purported sale of the subject premises
by Shinnecock Trustees to Miles Carpenter. (D2, at “Second”
Finding; Tr. 1245-46.) Defendants' witness, Dr. Campisi, testified that the
land that was the subject of the Cassady
Litigation was not where the Shinnecock Indians lived. (Tr. 2781.)
(8)
THE 1922 HUBBARD
LITIGATION
The
tract of land referred to in Paragraph “V”
of the Findings in the action entitled Shinnecock
Tribe of Indians v. Hubbard,
Supreme Court of the State of New York, Suffolk County,
judgment entered December 27, 1922) (the “Hubbard
Litigation”),
includes Westwoods, in whole or in part. (Stip. No. 101;
Tr. 963.) The Findings in the Hubbard
Litigation include a finding that “for
more than 70 years last past”
plaintiff Shinnecock Tribe and its members “have
obtained its firewood and fencing”
from Westwoods, but the record in the Hubbard
Litigation does not include a finding or determination that (i)
the Shinnecocks claimed or had aboriginal rights in the subject
premises; (ii) the Shinnecocks had been in possession of the
premises since time immemorial, or (iii) the Shinnecocks had been
in possession of the premises since any time prior to
circa 1850. (D1, at Findings ¶
“V”;
Tr. 963; T12, at 121-25.) The Opinion of Referee William
Pelletreau in the Hubbard
Litigation states that the plaintiff tribe “has
only such rights to litigate as are conferred by statute
.”(D1,
at Opinion.)
*22
Despite the statement that “within
the memory of living witnesses three, four or five families
of said tribe resided on said tract,”
which appears in the “Findings”
of the referee appointed in the Hubbard
litigation, there is no basis on which to conclude that
(i) those families resided on the approximately 80-acre Westwoods parcel,
inasmuch as the tract at issue in the Hubbard
Litigation was stated to be “about
100 acres”
in size; (ii) any of those families were living in
Shinnecock tribal relations; or (iii) any other families or individuals
ever resided at Westwoods. (D1, at ¶¶
“V”
and “VI”
of “Findings;”
Tr. 2781-82.) The Findings in the Hubbard
Litigation also state that “plaintiff
[Tribe] has for many years resided on Shinnecock Neck in
the town of Southampton.”FN24(D1,
at ¶
“IV”
of “Findings.”)
FN24.
The testimony of defendant Mr. Gumbs, discussed infra,
that no portion of Westwoods has ever been allotted to
any tribe member, undermines the contention of the defendants, as
well as the referee's finding in the Hubbard Litigation, that
“within
the memory of living witnesses three, four or five families
of said tribe resided on said tract.”(D1,
at ¶
“VI”
of “Findings.)
(9)
MAPS
As
set forth below, maps of the Town from 1797 to
the early 20th century do not support a conclusion of
Shinnecock habitation west of Canoe Place or at Westwoods.
A
1797 survey map created by the New York State Department
of Transportation (the “1797
DOT Map”)
depicts the Indian meeting house, discussed supra,
to the east of Canoe Place, and identifies Indian habitation
only to the east of Canoe Place; the 1797 DOT
Map indicates no Shinnecock habitation to the west of Canoe
Place. (T199; Tr. 920-21, 2760-61; T13, at 18-19.) As depicted
on the 1797 DOT Map, the Indian meeting house was
situated within the 1703 Lease Lands, which are depicted on
the 1797 DOT Map as “Shinnecock
tribe & Indian Reserve.”
(T199; T13, at 18; Tr. 920-21.) According to Mr. Lynch,
the Indian meeting house depicted on the 1797 DOT Map
was “a
marker denoting the main location of Shinnecock settlement from circa
1602 through 1809 and beyond.”(T13,
at 18-19.)
A
1780 map prepared by Major John Andre does not show
any habitation at all in the vicinity of Westwoods, and
no Indian habitation at all west of Canoe Place. (D208a;
Tr. 1049-50.)
An
1829 map of Suffolk County created by David Burr (the
“1829
Burr
Map”)
does not indicate the presence of Shinnecock Indians to the
west of Canoe Place, but does indicate the name Shinnecock
(spelled “Shunnecock”)
east of Canoe Place. (T360; Tr. 1232-34, 2762-63, 2765-66.)
The 1829 Burr Map depicts the presence of an Indian
meeting house to the east of Canoe Place-the same Indian
meeting house that is depicted on the 1797 DOT Map.
(T360; T199; Tr. 1233.)
The
1833 Sumner Map shows a triangle symbol, which indicates the
location of Indians, east of Canoe Place. (T250; Tr. 2766-68,
2685.)
The
1836 J. Calvin Smith Map (the “1836
Smith Map”)
erroneously locates a Shinnecock reservation south of Canoe Place, on
the west side of Shinnecock Bay, according to a report
co-authored by Dr. Campisi. (D119; T251, at 37; Tr. 2769-71.)
An 1839 republication of the 1829 Burr map repeats the
error of the 1836 Smith Map. (D118; Tr. 2771-72.)
*23
The 1838 U.S. Coast Guard and Geodetic Survey Map shows
no Indian dwellings or Indian habitation west of Canoe Place
but does show Indian dwellings east of Canoe Place at
Shinnecock Neck. (T247, at 265, 269-71; Tr. 2772-75.)
The
1859 Chace Map places the Shinnecock Indians east of Shinnecock
Bay, and east of Canoe Place, on Shinnecock Point or
Shinnecock Neck, and contains no indication of Shinnecock presence west
of Canoe Place. (T247, at 272; Tr. 2775; D29, at
12.)
The
Gazetter of the State of New York (Tenth Edition), published
in 1861, reported that in Southampton, an Indian settlement, which
was “the
residence of the remnant of the Shinnecock Indians, consisting of
about 200 persons,”
was situated on the east side of Shinnecock Bay. (T144,
at 638 n. 12.)
The
1873 Beers Map places the Shinnecock Indians east of Shinnecock
Bay, and east of Canoe Place, on Shinnecock Point or
Shinnecock Neck, and contains no indication of Shinnecock presence or
habitation west of Canoe Place. (T247, at 274; Tr. 2775;
D29, at 12.)
The
Map Showing the Subdivision of the Town of Southampton Among
the Proprietors (the “Proprietor's
Map”),
created by or under the direction of William S. Pelletreau,
not later than 1885, references two locations east of Canoe
Place as lands in which the Shinnecocks held an interest,
namely Shinnecock Hills and Shinnecock Neck, but does not indicate
any other lands in which the Shinnecocks held an interest,
including but not limited to, any lands west of Canoe
Place, including Westwoods. (T226.)
The
1902 Art Village Map shows the Shinnecock settlement at Shinnecock
Neck, east of Canoe Place, and shows no Shinnecock presence
west of Canoe Place. (T247, at 272, 275; Tr.
2779-80.)
The
1916 Belcher Hyde Map shows the Shinnecock tribal village or
residences on the Shinnecock Reservation and contains no indication of
Shinnecock habitation or settlement west of Canoe Place. (T247, at
272, 276-77; Tr. 2780.)
The
1929 Dolph Stewart Map includes the words “Shinnecock
Indians”
in the general vicinity of Westwoods but shows the Shinnecock
Reservation east of Canoe Place. (T247, at 275, 278-79; Tr.
2780-81.)
In
sum, the maps of the Town during this period do
not support a conclusion of Shinnecock habitation west of Canoe
Place or at Westwoods.FN25(Tr.
2757-81.)
FN25.
A February 2003 Stage I Archaeological Survey for the “Shinnecock
Reservation-West Hills”
concluded, on the basis of archival research and 249 test
excavations within a 15-acre area claimed by the Shinnecock, that
“the
project area witnessed minimal documented human activity in the past.”(T135,
at ii; T12, at 98-99; Tr. 964-66.) The 15-acre parcel
studied in the February 2003 Survey was within Westwoods. (T135
at 16, 17, 21; Tr. 965.)
(10)
OTHER RECORDS AND WRITINGS
The
Court also has examined other records and writings, referenced by
defendants, to determine if they support Shinnecock habitation west of
Canoe Place at Westwoods on a continuous basis since the
17th century. None of this other evidence supports such a
conclusion. For example, the writings of Timothy Dwight provide no
information that indicates a Shinnecock presence or habitation west of
Canoe Place in the early 19th century. (Tr. 2782.)
Similarly,
Russell Carman's article In
the Beginning: The Shinnecock Indians and the First White Settlers
in Quogue,
(D107), is also not reliable or persuasive. Carman reports that
“[t]he
Indians told my grandfather, and he told me, that a
large portion of the [Shinnecock] tribe lived, except during the
severe cold months, on the bluffs overlooking Peconic Bay, on
the westerly side of the ‘haulover’,
where the Shinnecock locks are today.”(D107,
at 1.) However, the article does not identify the historic
period during which this information was reported. Moreover, Carman cites
no historic sources or historic documents for the information contained
in his article concerning Shinnecocks living west of the “haulover”
and no historic sources corroborate Carman's account.FN26(Tr.
2724-25.)
FN26.
Dr. Campisi testified that it was his opinion that one
of the two possible periods to which the events described
in the paragraph of Carman's article recounting Indians living west
of the “haulover”
could be referring was sometime between 1620 and 1637. (D107,
at 1; Tr. 2658-59.) Dr. Campisi also testified that it
was his interpretation that the Indians told Russell Carman's grandfather
the information about where Shinnecocks lived in approximately 1876. (D107,
at 1; Tr. 2656-58.) Thus, according to his interpretation of
the time-frames at issue in the Carman article, Carman's grandfather
was told by the Indians the information concerning the purported
habitation of Indians west of the haulover 200 years after
the latest time at which those habitations had occurred. (D107,
at 1; Tr. 2726-27.) Dr. Campisi also admitted that he
does not know whether the “bluffs,”
referred to in the Carman article as having been a
location where Indians purportedly lived, included Westwoods. (Tr. 2725.) Dr.
Campisi conceded that the Carman article is not a learned
treatise, is not a primary historical document, and is not
a primary source article on which he would rely solely.
(Tr. 2654-55, 2726.) Thus, Dr. Campisi acknowledged that Carman's hearsay
article “is
not the strongest piece of evidence in the world”
concerning purported Shinnecock habitation. (Tr, 2658-60.) Dr. Campisi also admitted
that: (1) historic sources indicate that the locations regularly occupied
by the Shinnecocks in the 17th and 18th centuries were
at Shinnecock Neck, Quogue, and Sebonack, sometimes called Cold Spring
(Tr. 2725-26); and (2) historic sources do not include the
property now known as Westwoods as the location regularly occupied
by the Shinnecocks in the 17th and 18th centuries (Tr.
2726).
*24
To support their position, defendants also rely on a report
written by Barbara M. Moeller, who was engaged by the
Town to produce a historical profile of Hampton Bays, as
well as Ms. Moeller's deposition. The 2005 report made several
conclusions, including the following: (1) the Canoe Place Inn (which
is about 700 yards south of the closest Westwoods boundary)
“has
been an Indian habitation location for centuries”
(D192, at 13); (2) there was an Indian burying ground
at the site of the grave of Paul Cuffee (which
is about one-half mile southwest of the closest Westwoods boundary)
and that Indian remains other than those of Cuffee are
or were buried at the site (D192, at 16); and
(3) early settlers in Hampton Bays mingled with Indians already
living in the area (D192, at 54). Ms. Moeller also
opined that when the railroad went through the grave of
Paul Cuffee in 1869, Indian remains there were dug up
and moved to the Shinnecock Reservation. (D359, at 78-80.) The
Court finds Ms. Moeller's report and opinions to have little
probative value. As an initial matter, it is clear from
the circumstances surrounding the commissioning of the work, as well
as from a review of the report itself, that it
was not intended to be a scholarly work, but rather
was meant to provide general historical information as a planning
tool related to future development and decisions regarding preservation of
structures or sites. (D359, at 28, 69.) Moreover, Ms. Moeller's
qualifications in historic research are very limited; in fact, Ms.
Moeller conceded that to say that she specializes in historic
research is “an
overstatement of my talents .”
(D359, at 37-38.) More importantly, Ms. Moeller does not provide
an explanation as to how she arrived at her opinions,
and defendants have not offered any evidence to otherwise support
these conclusions. Thus, in light of the entire trial record,
the Court declines to credit these unsubstantiated conclusions.FN27Moreover,
even if Ms. Moeller's conclusions are true, the presence of
Indians in the vicinity of Westwoods falls far short of
establishing continuous use and occupation of Westwoods by the Shinnecock
Nation.FN28
FN27.
For similar reasons, to the extent that defendants also seek
to support their position or to undermine or discredit Mr.
Lynch's analysis by pointing to the draft article by Town
Historian Henry Moeller entitled Three
Indian Meetinghouses,
as well as discussions by Mr. Lynch about that draft
article, the Court does not find that Mr. Lynch's concern
with the article undermines his credibility or conclusions. In fact,
Henry Moeller acknowledged that the draft article was not published
because he is not convinced that he knows what happened
as it relates to these historical events. (D363, at 337.)
In short, the article has virtually no probative value and
does not impact the conclusions drawn by the Court based
on the entire trial record.
FN28.
Defendants also suggest that “[n]umerous
documents relating to Indian records and archeology, possibly containing information
relevant to the Shinnecock Indian Nation's possession of Westwoods, known
to have been in the custody of the Town have
disappeared.”(Defs.
Proposed Findings of Fact, at ¶
1.) The primary basis for this contention is a statement
by Mr. Moeller that “sensitive”
archeological information given to the Town of Southampton Planning Department
in the 1970s could not be found when he looked
for such information more recently. (D199, at 1; D363, at
220-22.) However, there is no evidence as to the content
or subject matter of this information, and there is no
reason to believe that it had any relevance to the
issues that are the subject of this litigation. Moreover, Mr.
Moeller also agreed that the archeological information that he was
unable to find may have been kept in “a
different form”
by the Town within the Town records. (D363, at 224-25.)
Thus, the Court does not find any basis to conclude
that documents relevant to this litigation are missing or that,
even if they were missing, they would be favorable to
the Nation's position. As discussed in detail supra,
there is an overwhelming historical record from which the Court
makes its conclusions in this case on the issue of
extinguishment of aboriginal title.
H.
STATEMENTS BY NATION REPRESENTATIVES REGARDING WESTWOODS
(1)
1888 NEW YORK STATE LEGISLATIVE HEARING
In
1888, the New York State Legislative Assembly appointed a “Special
Committee to Investigate the Indian Problem of the State of
New York”
(the “Special
Committee”).
(T133.) Milton Winfield Lee, a Shinnecock Tribe member who was
later elected multiple times as a Shinnecock Tribal Trustee, provided
sworn testimony before the Special Committee. (T145, at 850-51; T229,
at Appendix 14; T12, at 95, 98, 107, 112-13.) Lee
testified to the following: (1) “The
tribe bought fifty acres of wood land”;
(2) “I
think they [the tribe] have a deed of this tract”;
and (3) “We
bought it of Wakeman Foster ...
a white man....”
(T145, at 851; T12, at 95, 98, 107, 112-13; Tr.
958-60.) The “wood
land”
referred to by Lee included a portion of Westwoods. (T12,
at 94-95; Tr. 959.) According to Mr. Lynch, Foster held
no rights in lands in the vicinity of Westwoods, and
thus Foster could not have been the source of any
rights claimed by the Shinnecocks in Westwoods. (T12, at 107,
113-14; Tr. 960.) According to Mr. Lynch, the loss of
the Shinnecock's native language, which occurred as a result of
“profound
socio-cultural change,”
caused Shinnecock memories, based on oral tradition, to become distorted.FN29(T12,
at 107, 109; T144.)
FN29.
On August 10, 1888, James H. Foster, a Southampton native
familiar with the Shinnecocks, also provided sworn testimony before the
Special Committee, at Southampton. (T133 at 827-838.) Mr. Foster was
a Justice of the Peace of Southampton. (T133 at 831;
T169at 296.) Mr. Foster testified to a Shinnecock claim that
the Tribe had purchased “about
fifty acres”
of woodland, “seventy
or eighty years ago,”
i.e.,
1808-1818. (T133 at 830; T12 at 111-12; Tr. 945-946, 954-958.)
The “woodland”
referred by Mr. Foster in his testimony before the Special
Committee was Westwoods. (T12 at 94-95; Tr. 958; T133
at 830.) During Mr. Foster's testimony before the Special Committee,
there was no mention that the Shinnecock had subsisting aboriginal
rights to Westwoods. (T133; T12 at 115.)
(2)
THE 1943 JOINT LEGISLATIVE COMMITTEE
*25
On October 14, 1943, Fred Smith, who identified himself as
a member of the Shinnecock Tribe, gave sworn testimony at
a public hearing of the “Joint
Legislative Committee on Indian Affairs,”
which had been established by the New York State Legislature.
(T233, at 39; Stip. No. 94.) Smith was 74 years
of age when he testified on October 14, 1943, and
he had always lived in Southampton. (T233, at 39.)
Mr. Smith was referring to the Westwoods Parcel or to
a parcel of land including Westwoods when he referred to
the “west
wood land”
in his testimony. (Stip. No. 95.) Mr. Smith testified that
the Tribe had purchased Westwoods “by
some money the Shinnicocks [sic] had.”(T233,
at 42.)
(3)
THE 1978 SHINNECOCK NATION LITIGATION REQUEST
In
February 1978, the Shinnecock Indian Tribe submitted to the United
States Department of the Interior a “Litigation
Request and Statement in Compliance with 25 CFR §
54.6 by The Shinnecock Tribe”
(the “1978
Litigation Request”).
(Stip. No. 89; T229.) The land that was the subject
of the 1978 Litigation Request did not include Westwoods or
any other land located to the west of Canoe Place.
(Stip. No. 90.) In support of the 1978 Litigation Request,
the Shinnecocks submitted to the Department of the Interior a
“Memorandum
in Support of Litigation Request”
(the “1978
Memo”)
and various “Appendices”
and documentary exhibits. (Stip. No. 91; T229.) One of the
three signatories of the 1978 Memo was Marguerite Smith, an
attorney admitted in New York and also a member of
the Shinnecock Indian Nation. (Stip. No. 92.) The 1978 Memo
was prepared by, or on behalf of, the Shinnecock Tribe,
and its submission was authorized by the Nation. (Stip. No.
93.) The 1978 Memo does not suggest that either the
Ogden Deed or the Topping Deed was void, invalid, or
illegal. (T229.) To the contrary, in the 1978 Memo,
the Shinnecock Nation acknowledged the validity and legality of the
Ogden Deed and the Topping Deed by stating that “the
Tribe's
domain to the west of Canoe Place was conveyed to
non-Indian individuals in 1659, 1662,”
and also that “[t]he
tribal territory to the west of Canoe Place was subsequently
conveyed to non-Indian individuals by deeds of 1659 and 1662.”(T229,
at 8, 16 .)
I.
THE ORAL TRADITION OF THE NATION REGARDING WESTWOODS
The
Court has also examined the oral tradition of the Nation
regarding Westwoods. During the course of a Shinnecock tribal meeting
held on February 4, 2003, Kevin Eleazer, a former Shinnecock
Tribal Trustee, stated that “we're
not even sure if we own the land at West
Woods....
It was given to us by a millionaire, and yet
there was never a deed for that.”(T261,
at 42; Tr. 2947-48.)
Defendant
Mr. Gumbs, Chairman of the Shinnecock Tribal Trustees, admitted that
he personally heard Kevin Eleazer's statement at the tribal meeting
of February 4, 2003 that Westwoods “was
given to us by a millionaire,”
and that he (Mr. Gumbs) had heard another unidentified tribal
member make a statement like that previously and that Kevin
Eleazer was reiterating it. (S251, at 249.) Mr. Gumbs admitted
that the reason he believes Kevin Eleazer's February 4, 2003
statements about Westwoods were inaccurate is that they were based
on statements that Kevin Eleazer had acquired from someone else,
who had acquired them from someone else before that, and
that as stories go “down
the loop”
over time, they change. (Tr. 2949; S251, at 249-50.) The
passing down of stories or memories, orally, from one person
to another, from generation to generation, is precisely how Mr.
Gumbs came to his understanding of the oral history concerning
Westwoods, through what he was told by Augustus (Gus) Thompson
and others. (Tr. 2938, 2846, 2849-54.) Mr. Gumbs's understanding of
the reputation in the Shinnecock community concerning Westwoods is that
it is “land
that we have,”
that “[i]t's
been used in the past for firewood purposes”
and “[g]enerally
in the community it has been used as a means
of survival and as recreation for the community.”(Tr.
2846.) The principal source of Mr. Gumbs's understanding and knowledge
of Westwoods, particularly its history and the origin of the
Shinnecock's rights and interest therein, was Mr. Thompson, who died
when Mr. Gumbs was 10 years old, and with whom
Mr. Gumbs became familiar through nightly dinners and helping Mr.
Thompson on his garbage collection route. (Tr. 2846-49.) Mr. Thompson
told Mr. Gumbs that the Tribe “always
owned”
Westwoods. (Tr. 2854.) The only specific information about Westwoods history
that Mr. Thompson told Mr. Gumbs was that Mr. Thompson
pointed out to Mr. Gumbs “indentations”
in the land at Westwoods on the north side of
Newtown Road that Mr. Thompson believed were for “wiki-ups,”
which could have been used for shelter or a cellar
to store things. (Tr. 2850-52.) Notwithstanding Mr. Gumbs's testimony that
Mr. Thompson told him that the Tribe “always
owned”
Westwoods, Mr. Gumbs acknowledged that he could not say one
way or the other whether Lee's 1888 testimony that the
Shinnecocks had purchased 50 acres of woodland (i.e.,
Westwoods) was incorrect. (Tr. 2949-52.) In so acknowledging, Mr. Gumbs
conceded the possible validity and veracity of testimony about the
origin of Shinnecock ownership of Westwoods that was in direct
conflict with his testimony of his understanding of the reputation
within the Shinnecock community, based on the Tribe's oral history,
of the origin of the Shinnecock's ownership of Westwoods, i.e.,
that the Shinnecocks “always
owned”
Westwoods. Mr. Gumbs acknowledges that “once
or twice”
he has heard members of the Shinnecock Tribe say that
they did not believe the Tribe owned Westwoods, but he
dismissed those statements simply because one of the persons, when
confronted about such a statement made at a tribal meeting,
had no explanation of how he arrived at it. (Tr.
2854-55.) No evidence was presented by defendants that Mr. Thompson
ever was elected a Tribal Trustee, that he held any
other elected or appointed position within the Tribe, that he
enjoyed any particular formal or informal status of respect or
authority within the Tribe, or that he was ever deemed
by the Tribe at any point as knowledgeable on any
matter of Shinnecock history, including its oral history generally, or
specifically as that oral history relates to the Shinnecock's alleged
ownership, use, and/or occupancy of Westwoods. No evidence was presented
that Mr. Thompson's recounting to Mr. Gumbs of his understanding
of the Shinnecock's ownership of Westwoods, including the origin thereof,
what may have been located at Westwoods over time, and
how the Tribe may have used Westwoods over time, represents
anything more than the isolated statement, or opinion of one
single tribal member, which is entitled to no greater weight,
authority, or reliance than the statements about Westwoods from any
other tribal member. Mr. Gumbs indicated that his understanding of
the source of what Mr. Thompson told him about Westwoods
was Mr. Thompson's own experiences going to Westwoods and what
“his
father had told him.”
(Tr. 2851.) No evidence was presented by defendants that Mr.
Thompson's father was ever elected a Tribal Trustee, that he
held any other elected or appointed position within the Tribe,
that he enjoyed any particular informal status of respect or
authority within the Tribe, or that he was ever deemed
by the Tribe at any point as knowledgeable on any
matter of Shinnecock history, including its oral history generally, or
specifically as that oral history relates to the Shinnecock's alleged
ownership, use and/or occupancy of Westwoods.
*26
The Shinnecock Tribe does not have anyone who is designated
as the tribal historian. (S249, at 30.) Defendants did not
present any evidence that there is any one person who
is deemed authoritative within the Tribe with respect to the
Tribe's oral history and oral tradition, or is a keeper
or custodian of accurate and/or reliable oral history, including as
that oral history and tradition relates to the Shinnecock's alleged
historical use and occupancy of Westwoods, and the origin of
their title to and interest in Westwoods.
In
sum, there is no basis to conclude that Mr. Gumbs's
testimony about the Shinnecock Nation's oral history concerning the Tribe's
purported historical use and occupancy of Westwoods, including the origin
of the Tribe's rights in Westwoods, is in any respect
more reliable or is entitled to any greater weight than
the oral statements about how the Shinnecocks acquired Westwoods through
gift or purchase made by persons identified as members of
the Shinnecock Tribe, to wit, Kevin Eleazer, Milton Winfield Lee,
and Fred Smith.
J.
THE TOWN'S TREATMENT OF WESTWOODS FROM THE STANDPOINT OF GOVERNMENTAL
AUTHORITY
(1)
LACK OF PROPERTY TAXES ON WESTWOODS
No
property taxes have been assessed or imposed on Westwoods from
1927 to the present, and Westwoods is not listed in
any tax records of the Town for the years 1800
through 1926. (Stip. No. 32.) There exists no known evidence
that Westwoods ever has been listed as taxable property in
any assessment records of Southampton. (Stip. No. 33.) Neither the
State nor the Town is aware of any evidence that
Westwoods ever has been listed in any assessment records of
Southampton as anything other than tax-exempt Indian land. (Stip. No.
34.) The relevant Suffolk County Tax Maps describe both the
Shinnecock Reservation and Westwoods as “Shinnecock
Indian Reservation.”
(D232; D156d.)
(2)
THE CANOE PLACE DIVISION
As
set forth below, the Southampton proprietors laid out in or
about 1738 a 3000-4000 acre subdivision of property consisting of
39 numbered lots, which includes at least a portion of
Westwoods within its boundaries (the “1738
Canoe Place Division”
or the “Division”),
and there is no documented record of any objection or
challenge to the laying out or allotment of the Division.
(a)
THE LAYING OUT, ALLOTMENT, AND BOUNDARIES OF THE CANOE PLACE
DIVISION OF 1738
In
or about 1738, Southampton proprietors laid out a 3000-4000 acre
subdivision of property known as the “Canoe
Place Division”
of the Quaga purchase, consisting of 39 numbered lots, running
from “Jeremiah
Culver's land”
on the east, to “Red
crick”
on the west. (T97; Martin A. Read, L.S., The
Location of the “Westwoods”
Parcel Relative to 1738 Canoe Place Division,
Barrett, Bonacci & Van Weele, P.C., June 28, 2006 (T210),
at 1-2; T12, at 68-70; Tr. 971-72, 1268-69.) The surveying
and laying out of the 1738 Canoe Place Division is
reflected in a portion of Town records dated March 27,
1738, entitled “A
Return of the Canoe place Division,”
which also provides a description of the lands constituting the
Division. (T210, at 1-2; T97.) The 1738 Canoe Place Division
is described in “A
Return of the Canoe place Division,”
(T97), as being bounded southerly by the highway running “from
Canew place Gate to tianah,”
northerly by “the
beach from Conew place pond on the north side to
Red crick gut,”
westerly “on
a direct line northwardly to a fresh pond near Red
crick the southward part thereof to [be] a tree marked
with No. 38, by the pond, and still running northward
to Red crick and so along the branch and by
the side of the crick to the north sid[e],”
and easterly by “Jeremiah
Culvers land which he bought in said Purchas at the
South end butting up on Quaga Road, and the north
end butting on the beach.”(T97,
at 123-24; T210, at 1-2; Tr. 1268-69.)
*27
Defendants' title abstraction and examination witness, Mason Haas, admitted that
according to Town Exhibit 215, the boundaries of the 1738
Canoe Place Division were north by Peconic Bay, south by
Montauk Highway, east by Canoe Place Pond, and west by
Red Creek. (T97; Tr. 3041.) Using modern-day landmarks, the Division
is generally bounded on the south by Montauk Highway, on
the north by Great Peconic Bay, on the west along
a line running from Tiana Creek northerly to Red Creek,
and on the east by a north-south line in the
vicinity of the present day Shinnecock Canal. (T210, at 1-2;
Tr. 1269.) The dotted line on Town Exhibit 217, created
by plaintiffs' expert land surveyor, Martin A. Read, depicts accurately
the northerly, southerly, and westerly boundaries of the 1738 Canoe
Place Division, as described in “A
Return of the Canoe place Division,”
(T97), superimposed on an enlarged portion of the 1894 Beers
Atlas Map that depicts the westerly portion of Southampton. (T217;
T210, at 1-2; Tr. 1271-72.) Although Mr. Read could not
locate the easterly boundary line of Lot No. 1 of
the Division with a degree of specificity that would have
allowed him to plot it on Town Exhibit 217, he
was able to determine that the approximate eastern boundary of
the Division, using modern landmarks, was in the vicinity of
the Shinnecock Canal. (T217; Tr. 1272-73; T210, at 2.)
The
1894 Beers Atlas Map refers on its face to the
“Canoe
Place Division”
and its having been “
‘[l]aid
out in’
1738.”
(T216; Tr. 1270, 3047-48.) The location of the words “Canoe
Place Division”
on the 1894 Beers Atlas Map substantiates generally the east-west
reach or boundaries of the 1738 Canoe Place Division, as
those boundaries are described in “A
Return of the Canoe place Division.”(T97;
T216; Tr. 1270; T210, at 2.) The Proprietor's Map, (T226),
refers to “Canoe
Place Division Divided-1738,”
and the location of those words is consistent with the
approximate location of the lands of the Division, as established
by the testimony of both Mr. Read and Mr. Haas.
(T226; T210, at 1-2; Tr. 1268-73, 3041-42; T97; T215; Tr.
3048.)
The
lots described in the 1738 Canoe Place Division are aligned
in a northerly/southerly direction. The first 37 lots are numbered
consecutively, running from east to west, with Lot No. 1
of the Division being the easterly most lot. (T97; T210,
at 1-2; Tr. 1269.) The document “A
Return of the Canoe place Division”
sets forth a specific acreage for each of the 39
lots of the Division, as well as a description of
the physical location of each lot in relation to the
other lots within the Division. (T97, at 124-25; Tr. 3045.)
The
land located immediately to the east of the eastern boundary
of Lot 1 of the 1738 Canoe Place Division is
described as being “Jeremiah
Culvers [sic] Land.”
(T97, at 124; Tr. 3045.) That land of Jeremiah Culver
was purchased by Culver from the Town prior to the
creation of the 1738 Canoe Place Division. (T97, at
124; Tr. 3044-45.)
*28
On April 2, 1739, the Southampton Town Proprietors met to
allocate interests in the 39 numbered lots within 1738 Canoe
Place Division; that is, to determine which proprietors would obtain
rights in which of the 39 lots of the Division
(the “Canoe
Place Division Lot Drawing”).
(D172; T107; T12, at 70). The 39 numbered lots within
the Division were allotted to specifically-named Town proprietors during the
Canoe Place Division Lot Drawing. (D172; T97; T107.) For each
of the 39 lots in the 1738 Canoe Place Division,
the Canoe Place Division Lot Drawing identifies one or more
named individual Proprietors of the Town who received interests or
allotments (expressed in terms of “fifties”
or portions thereof) in said lots. (D172; T107; Tr. 3045-46.)
None
of the individuals (each, an “Allottee”)
whose names appear in the Canoe Place Division Lot Drawing
found within the Third
Book of Records of the Town of Southampton, Long Island,
N.Y. with Other Ancient Documents of Historic Value,
at 129-32, were members of the Shinnecock Tribe. (Stip. No.
79.) There is no documented record of any objection or
challenge by or on behalf of the Shinnecock Tribe of
Indians to the laying out or allotment of the 1738
Canoe Place Division. (Stip. No. 80.)
(B)
WESTWOODS GENERALLY IS SITUATED WITHIN THE 1738 CANOE PLACE DIVISION
The
lands that were part of or the subject of the
1738 Canoe Place Division were located exclusively to the west
of Canoe Place; that is, using modern landmarks, the lands
of the Division were situated entirely to the west of
the modern day Shinnecock Canal. (T97; T215; T216; T217; T226;
T210, at 1-2; Tr. 1268-73, 3041-42, 3047-48.) Westwoods is located
entirely to the west of Canoe Place, that is, to
the west of the modern day Shinnecock Canal. (T214; Stip.Nos.
16, 35, 36.)Westwoods is generally located within the boundaries of
the 1738 Canoe Place Division as they were described by
plaintiffs' expert Mr. Read, with recourse to modern landmarks.FN30(T214;
T97; T210, at 1-2; T217.) The Court found Mr. Read's
testimony to be credible, as supported by his extensive analysis
of various documents including deed histories and maps, that at
least aportion of Westwoods, namely some portion of Westwoods that
is north of the Milton Reiner Property as it runs
from west to east, lies within Lot No. 2 of
the 1738 Canoe Place Division and that no portion of
Westwoods lies west of the westerly boundary of Lot No.
4 of the Division.FN31(T210,
at 1, 5-6; Tr. 1267-68.)
FN30.
Mr. Haas admitted that he had testified under oath at
his deposition in this action that Westwoods is located within
the lands that were the subject of the 1738 Canoe
Place Division. (Tr. 3041-42.)
FN31.
It should also be noted that Town Exhibit 111 is
an excerpt of the Southampton Town Records from 1795, depicting
a plan for the laying out of a road across
the 1738 Canoe Place Division. (T111; Tr. 3065-66.) Town Exhibit
111 refers to a highway running “from
the Canoe place ditch at the Western Boundary of the
Indian Land to the Said Red Creek Island Road.”(T111;
Tr. 3065-66.) According to Mr. Haas, Exhibit 111 relates to
the laying out of a portion of Newtown Road, and
at no point in history is he aware of a
time when Newtown Road began at Westwoods. (Tr. 3065-67.) Mr.
Haas admitted that if one assumes that the “Canoe
Place Ditch”
referenced in Town Exhibit 111 is located where the modern-day
Shinnecock Canal is located, the reference in Town Exhibit 111
to “Indian
land”
could not be a reference to Westwoods. (Tr. 3067.) The
Canoe Place Ditch is the place where Indians formerly carried
their canoes between Shinnecock Bay and the Great Peconic Bay,
and was located where the modern day Shinnecock Canal is
situated. (Stip. No. 35; T12, at 76-78.) Thus, the reference
in this 1795 document to “Indian
Land”
does not appear to be a reference to Westwoods, but
instead appears to be a reference to the 1703 Lease
Lands, i.e.,
the lands situated exclusively to the east of Canoe Place,
which were the subject of the 1000 year lease. (T73;
T12, at 52-57; Tr. 2755.)
Although
Mr. Haas contends that the Canoe Place Division was simply
a proposal that was never implemented (Tr. 3042-43, 3055), the
Court rejects that opinion as contrary to the historical record-including
land records, maps, and deeds-which support the conclusion that the
Canoe Place Division was executed. (T97, T107, T215, T216, T226;
T210, at 5; D158D, D159C, D161C, D166C; Tr. 3042-55.) The
inability to locate a subdivision map, or to locate deeds
from the Trustees of the Town to any of the
Allottees of the 39 lots within the Division, are not
sufficient to ignore the compelling evidence that the Division existed
and was executed.
*29
In addition, deeds within the chains of title for property
adjoining Westwoods which refer to Westwoods as “Indian
land,”
“Indian
reservation,”
or “Land
of the Shinnecock Tribe of Indians,”
make up the majority of the evidence that Mr. Haas
cites to support his opinion that the Shinnecocks have owned
Westwoods for the entirety of the existence of recorded land
title records within the Suffolk County Clerk's Office. (D157, at
1-20; D154, at ¶¶
8-10; Tr. 3024-27.) However, deeds for properties adjoining Westwoods also
contain some references that are more ambiguous as to the
purported Shinnecock ownership of Westwoods, including “Indian
land, so-called,”
“so
called Indian Land,”
“land
now or formerly of the Shinnecock Tribe,”“land
now or formerly of the Shinnecock Indian Tribe,”“land
now or formerly of The Shinnecock Indian Reservation,”“lands
reputed to be Indian Lands,”“land
now or formerly of Trustees of the Shinnecock Tribe,”
and “what
is known as Indian land.”(D157,
at 2-8, 12-13, 15-19; Tr. 3027-29.)
In
any event, Mr. Haas's opinions regarding ownership of Westwoods are
limited to the period from 1845 going forward. (Tr. 3030.)
In other words, Mr. Haas admitted that there is no
reliable documentary evidence of Shinnecock ownership of Westwoods prior to
1845 and that he found nothing in his title work
in this case to indicate any interest that the Shinnecocks
had in Westwoods prior to 1845. (Tr. 3030.) Thus, he
acknowledged that there is nothing in his opinions that is
inconsistent with the position that the Shinnecock Tribe acquired an
interest in Westwoods in or around 1808. (Tr. 3031.)
(3)
SOUTHAMPTON'S HISTORIC REGULATION OF TIMBER RESOURCES
At
various times during the 18th century, the Southampton Trustees regulated
timber resources throughout the Town, as well as the rights
of the Shinnecocks to cut timber. (T12, at 62-68; Tr.
925-32.) For example, by orders of the Southampton Trustees, dated
May 5, 1741, April 2, 1745, and April 1, 1746,
no timber was permitted to be cut or carted in
Shinnecock Great Neck, and Sebonack Great Neck, both of which
locations are situated within the 1703 Lease Lands, east of
Canoe Place. (T12, at 63; T88, at 6; T89, at
34; T90, at 44; T199; Tr. 925-29.) By order of
the Southampton Trustees, dated March 5, 1747, no “green
timber”
was to be cut or carted “[i]n
or upon any part of the Indian Land,”i.e.,
the 1703 Lease Lands. (T91, at 55; T12, at 63;
Tr. 927.) By order of the Southampton Trustees, dated July
3, 1744, the Shinnecocks were granted “a
mile of timber”
“on
lands “from
the Conueplace Eastward,”
through a 50-year lease to the Indians. (T92, at 26;
T12, at 64.) By order of the Southampton Trustees, dated
June 2, 1747, the Shinnecocks were granted “all
the timber in Shenecock Great neck ...
and also all the timber in Sebonack neck.”This
order also provided that the timber granted to the Shinnecocks
should “Ly
...
from the Conneu-place ditch Eastward as far as the Coldspring....”
(T93, at 57; T12, at 64-65.) The area of timber
granted to the Shinnecocks by the aforesaid order of June
2, 1747 was in close proximity to the Shinnecocks' main
village at Cold Spring (Sebonack). (T93; T12, at 64-65; T13,
at 25-27, 32-35.) By reason of a growing shortage of
timber resources, and the sale of timber by individual Shinnecocks
to local townsmen, 32 Shinnecocks entered into a mutual agreement
dated June 12, 1764, which provided, inter
alia,
that “[n]either
Shall any Indian or Squaw Sell any timber on penalty
of Eight Shillings for any trees so Sold....”
(T94; T12, at 65; Tr. 930-31.) By order of the
Southampton Trustees, dated April 30, 1782, it was recognized that
the Shinnecocks had complained to the Trustees that agreements not
to sell timber, such as the foregoing agreement dated June
12, 1764, had been “broken
thrugh,”
and the Shinnecocks had made an application to the Southampton
Trustees for aid and assistance in fostering “a
Strict Observance of sd. Agreement.”(T95,
at 384.) The April 30, 1782 order prohibited the cutting
or carting of wood “off
any part of the Indian land,”
except for the consumption of persons having an interest in
such lands. (T95, at 384-85; T12, at 66-67; Tr. 931-32.)
By order of the Southampton Trustees, dated April 2, 1754,
no timber was to be cut or carted off “any
part of the undivided land westward of Canuplace on penalty
of six shillings....”
(T176, at 108; T12, at 65; Tr. 933-34.) By a
second order of the Southampton Trustees, dated April 2, 1754,
there was to be no flaxseed “soed
on any part of the Indian land.”(T176,
at 108.) By distinguishing between the “Indian
land”
and the “land
westward of Canuplace”
in the two orders of the same date, it appears
that the Southampton Trustees viewed the “Indian
land”
to be situated exclusively east of Canoe Place, while the
lands west of Canoe Place were not considered “Indian
land.”
(T176, at 108.)
K.
THE NATION'S TREATMENT OF WESTWOODS FROM THE STANDPOINT OF GOVERNMENTAL
AUTHORITY
(1)
USE OF WESTWOODS FOR FIREWOOD AND RECREATION
*30
Defendants are aware of no written document reflecting that the
Shinnecock Tribe and/or its Trustees ever made any allotments of
land within the borders of Westwoods to any member of
the Nation. (Stip. No. 31.) Tribal Chairman Mr. Gumbs, who
claimed to be knowledgeable about the reputation within the Shinnecock
community concerning the history of Westwoods, testified at trial that
as far as he knew, no portion of Westwoods had
ever been allotted to a tribal member in the history
of the Tribe. (Tr. 2835, 2845, 2937, 2939-40.) Mr. Gumbs
admitted that the Shinnecock Tribe has no written tribal laws
at all, including any concerning the use of Westwoods, or
any environmental standards that are referenced in the agreement originally
entered into between the Shinnecock Gaming Authority and Ivy Ong,
discussed infra.(D237,
at section 6.7; Tr. 2886-87, 2947, 2938-40.)
Mr.
Gumbs also admitted that, according to Tribal history, Westwoods is
to be used for firewood and recreational purposes. (Tr. 2938.)
The historical use of Westwoods only for firewood and recreational
purposes is consistent with the testimony of other Shinnecock Trustees.
(S249, at 39; S248, at 198.) No permanent structure currently
exists on any part of Westwoods. (Stip. No. 19.) Except
for the erection of gates across roadways, the Shinnecock Tribe
has never fenced in the Westwoods property. (D251, at 262-64;
S248, at 161.) Defendants Messrs. Eleazer and Bess testified that
the Shinnecock Tribe has never adopted or enacted any written
rules or regulations regarding the use of Westwoods by Tribe
members. (S249, at 100; S248, at 160-61.) To the extent
that the Shinnecocks used the area now known as Westwoods
in the 19th and 20th centuries, they used it primarily
as a timber lot for cutting wood and timber.
(Tr. 2782.)
As
stated by Tribal Trustees, the purpose of the development of
a casino at Westwoods would be for the Tribe's economic
development, that is, to meet the financial needs of the
members of the Tribe, and to enjoy the economic success
achieved by other Indian communities that engage in gaming. (Tr.
2880-82; S249, at 108-09.)
(2)
ENCROACHMENTS ON WESTWOODS
Mr.
Gumbs admitted that the Shinnecocks have been aware of the
fact that the driveway of a neighboring/adjoining property owner currently
encroaches on Westwoods. (Tr. 2941-42; S251, at 224-26.) Specifically, Mr.
Gumbs acknowledged that a former owner of that encroaching driveway,
Mr. Raynor, was obligated to pay rent to the Shinnecocks
for the use of the portion of Westwoods on which
the driveway encroached, but stopped remitting payments. (Tr. 2941-42; S251,
at 224-25.) Mr. Gumbs conceded that the driveway has continued
to encroach on Westwoods since Mr. Raynor sold his property.
(Tr. 2942; S251, at 226.) Mr. Gumbs admitted that the
Shinnecock have never commenced a lawsuit against Mr. Raynor or
the current owner of the encroaching driveway, seeking payment of
rent or the removal of the encroachment, and that Mr.
Gumbs does not have any knowledge that even so much
as a letter from the Shinnecock was sent to either
Mr. Raynor or the current owner of the property demanding
the removal of the encroaching driveway.FN32(Tr.
2942-43; S251, at 226-27.)
FN32.
On the issue of governmental authority, there is an unpaved
parking area at Westwoods used by the Shinnecocks, and Mr.
Gumbs testified that no Town or New York official ever
objected to the clearing of land for a parking lot.
However, Mr. Gumbs admitted that the parking lot was created
“before
his time,”
that he does not know when the parking tot was
created, and that he does not know whether the Town
was aware that the parking lot was being created. (Tr.
2940-41.) No evidence was presented at trial that Southampton or
New York was ever aware that land was cleared for
the creation of the parking lot on Westwoods, or an
awareness that the parking lot on Westwoods, in fact, existed.
Mr. Gumbs also admitted that the parking area at Westwoods
is not related to any commercial activity by the Tribe.
(Tr. 2941.)
L.
SOUTHAMPTON ZONING LAW
*31
In 1957, when Southampton initially adopted its zoning code, Westwoods
was zoned “C
residential,”
which was a single-family residential district, with a minimum lot
area per dwelling of 15,000 sf. (T5; T265; Tr. 94-97.)
In 1972, pursuant to the Town's 1970 Comprehensive Plan, the
Town re-zoned Westwoods “R-60,”
which is a residential classification for a single-family residence with
a minimum lot size of 60,000 sf. (T6; T266; Tr.
98-100.) In 1984, Southampton re-zoned Westwoods “R-80,”
which is a residential classification for a single-family residence with
a minimum lot size of 80,000 sf. (T264, T312; Tr.
100-03.)
Former
Southampton Town Planner David Emilita testified that the R-80 zoning
classification of Westwoods, as adopted in 1984, was omitted from
the Town's subsequent zoning map, and as part of the
Town's “Master
Plan Update Number Three of 1985”
it was proposed that Westwoods be reclassified from an R-80
zone to an R-60 zone. (Tr. 103-04.) Town Exhibit 9
includes the 1985 recommendation for the rezoning of Westwoods to
an R-60 zone, in order to “Replace
Omitted Zoning Map Designation.”
(T9, at third to last page; Tr. 104-06.) The third
to last page of Town Exhibit 9, including the words
“Replace
Omitted Zoning Map Designation,”
was prepared by Mr. Emilita. (Tr. 105-06.) Mr. Emilita testified
that the words “Shinnecock
Indian Reservation,”
which appear on the third to last page of Town
Exhibit 9, were placed there by him, “[f]or
identification,”
and that such words were intended to show that Westwoods
was owned by the Shinnecocks, and that the words had
no zoning significance. (Tr. 107-08; 121.)
A
public hearing was held in Southampton Town Hall in 1985,
concerning proposed updates to the Town's Master Plan, including the
designation of Westwoods as property bearing an R-60 zoning classification.
(T8; Tr. 108-09.) A letter authored on behalf of the
Shinnecock Tribe, which requested that the Town remove markings from
the zoning map that showed the Town's zoning authority over
the Shinnecock's lands, was read into the public record at
this 1985 public hearing. (T8, at 11-13; Tr. 109-12.) Southampton
did not grant the Shinnecock's request that it remove markings
from the zoning map that showed the Town's zoning authority
over the Shinnecock lands. (Tr. 112.) In 1986, the Town
approved the proposed changes that appeared in Town Exhibit 9,
and re-zoned Westwoods R-60, through the enactment and adoption of
Local Law No. 7 of 1986. (T11; Tr. 113-14, 241-42.)
Since
the enactment of Local Law No. 7 of 1986, there
have been no Southampton Local Laws that have affected or
changed the R-60 zoning designation of Westwoods. (Tr. 242-43.) Westwoods
currently remains zoned R-60 by the Town. (Tr. 240-42;
T11.) As an R-60 designated parcel, the use of Westwoods
is limited to single-family residential use. (T267; Tr. 114, 245.)
A gaming casino is not a permitted use in an
R-60 zone. (T267; Tr. 245.) A gaming casino is not
a permitted use anywhere in the Town. (T267; Tr. 245.)
A gaming casino is not authorized by Southampton zoning law.
(T267; Tr. 246.)
*32
Mr. Emilita testified that there is no impact, from a
zoning standpoint, resulting from the fact that a Town zoning
map shows no zoning classification for Westwoods. (Tr. 104.) At
all times from 2003 to the present, §
330-184(I) of the Southampton Town Zoning Law provided that “[n]o
regrading, clearing, tree removal or any other work in preparation
of future use of a site may take place until
site plan approval or written permission has been received from
the Planning Board.”(T267,
at 330.) At all relevant times, the operation of a
gaming casino and related commercial structures and activities, such as
hotels, restaurants, and retail stores have not been identified as
“permitted”
or “special
exception”
uses within any “Country
Residence”
or “Residence”
zoning districts in the Table of Use Regulations appearing at
§
330-10 of the Town of Southampton Zoning Law, including R-60.
(T267; Tr. 246-47.)
To
date, neither the Shinnecock Tribe, nor any representative, Trustee, or
any other person or entity acting on its behalf has
applied for or received a bingo or games of chance
identification number from the Board. (Stipulation, dated January 17, 2007,
Stip. No. 5.) To date, the Town has not issued
any state-authorized license to any defendant to permit gaming within
Westwoods. (Stipulation, dated January 17, 2007, Stip. No. 6.)
Town
of Southampton Planning and Development Administrator, Jefferson Murphree, testified that
no commercial structure can be constructed within the Town in
compliance with the Town Code in the absence of a
Town-issued building permit. (Tr. 247-48.)
Neither
“Shinnecock
Indian Reservation,”
nor “Indian
Reservation,”
nor “IND-RES”
is a zoning district or classification within the Town. (Tr.
116-17,235-36, 244, 269; T267.) Mr. Murphree testified that the labeling
of Westwoods as “Indian
Reservation”
or “IND-RES”
suggests nothing as far as the zoning of Westwoods is
concerned. (Tr. 244.) It is the Town's practice to zone
all lands within the Town.FN33(Tr.
236, 261, 266.) Shinnecock
Trustees Messrs. Gumbs and Eleazer admitted that they were aware
that Westwoods was assigned a zoning classification by the Town.FN34(Tr.
2943; S249, at 12, 98-99.)
FN33.
The May 20, 1987 letter from then-Southampton Town Attorney Fred
Thiele to the New York Department of State (“NYSDOS”)
refers only to the Town's then-existing policy concerning its zoning
laws with respect to the Shinnecock Reservation; it makes no
explicit or implied reference to Westwoods. (D229.) Mr. Thiele's letter
also states unequivocally that “the
Town of Southampton zones all the lands in the Town
excluding incorporated villages,”
(D229, at 1), and this is consistent with the trial
testimony of Mr. Murphree. (Tr. 236, 261, 266.) There are
no properties within Southampton that do not carry a zoning
classification assigned by the Town. (Tr. 236.) Because the 1987
letter addresses the Shinnecock Reservation, the Court views it as
having little, if any, probative value on the issues related
to Westwoods.
FN34.
Shinnecock Trustee Mr. Bess testified that Westwoods was assigned a
zoning classification, but he believed it had been removed.
(S248, at 210-12.)
M.
CURRENT TOPOGRAPHY AT WESTWOODS
The
Westwoods project site is bordered to the north by the
Great Peconic Bay, to the south by the Sunrise Highway,
and to the west and east by residential areas. (S125,
at 40; Tr. 1842; T1; T2; T3.) The sections of
the Westwoods parcel north and south of Newtown Road generally
include hilly terrain with centrally-located high points. The north parcel
includes the bluff topography sloping towards the Great Peconic Bay
(to the north) and generally towards Newtown Road (to the
south). The south parcel includes topography generally sloping towards Newtown
Road (to the north) and towards “Canoe
Place”
(to the southeast). (S125, at 40.)
The
topography reflects that Newtown Road is a relative low point
between higher elevation lands on the north and south parcels,
and surface runoff is directed towards Newtown Road from both
parcel sections. (S125, at 40.) The project site is located
within Seismic Zone C, which is identified as a region
of intermediate seismic hazard. (S125, at 9; S150.)
*33
The portion of Westwoods located on the north side of
Newtown Road, along the shore of the Great Peconic Bay,
contains a coastal bluff approximately 50 to 70 feet above
mean sea level (as defined in the National Geodetic Vertical
Datum (“NGVD”)
1929). (S125, at 9; Stipulation dated January 16, 2007, Stip.
No. 6.) The coastal bluff, one of the unique and
sensitive environs that contribute to the overall community character of
the Town, acts as a natural protective barrier that absorbs
wave energy and mitigates impacts from erosion and high water,
and also provides a source of material for other natural
protective features, such as beaches and dunes. (S125, at 10;
Tr. 1842.)
Proposed
development along the waterfront area within the Town is reviewed
by the Town for consistency with these local community waterfront
objectives. (S125, at 10.) Soils underlying Westwoods are part
of the Plymouth-Carver soil association. Characteristic of the Pine Barrens,
the Plymouth-Carver soils are distinguished by their coarse texture, which
allows for rapid permeability. (S125, at 11.) The soils
at Westwoods and their underlying geology allow for a renewable
source of fresh ground water, which recharges the aquifer through
percolation of rainwater or snowmelt, which is an important characteristic
for an area served by a ground-water-based sole source for
the municipal water supply system. (S125, at 11.)
The
high soil permeability at Westwoods also increases vulnerability to contamination
by septic systems, spills, and other development-related discharges. (S125, at
11, 52.) Westwoods is characterized by undulating topography with spot
elevations ranging from a high of 92 feet NGVD, on
the southern Westwoods parcel, elevation of 37 feet along Newtown
Road, and elevation of 50 feet on the northern Westwoods
parcel. (S125, at l2; S166.)
N.
CURRENT ENVIRONMENTAL RESOURCES AND CONDITIONS IN SOUTHAMPTON GENERALLY AND AT
WESTWOODS
(1)
WATER RESOURCES
Southampton,
as well as the rest of Long Island, obtains its
water supply solely from ground water sources, which consist of
three primary aquifers: the Upper Glacial, Magothy, and Lloyd aquifers.
(S125, at 12; Stipulation, dated January 16, 2007, Stip. Nos.
7, 9-10.)Infiltration from precipitation, runoff, and snowmelt are the only
sources of recharge to these aquifers, and where no development
has occurred, approximately 50% of the precipitation that falls on
the land could be expected to recharge the underlying aquifers,
with the remainder of the precipitation lost through evaporation and
plant transpiration. (S125, at l3; S162, at 9-11.)
Where
development has resulted in impervious surfaces (e.g.,
rooftops, parking lots, streets, and sidewalks), a greater percentage of
precipitation becomes overland flow-runoff-before infiltrating to the aquifers. (S125, at
13.) Most of the surface waters on Long Island are
fed from the ground water. (S125, at 13.) Eight
specific hydrogeologic zones based upon different flow patterns have been
identified on Long Island, and Southampton is located within Zones
III, IV, V, and VI. (S125, at 14, and Figure
6 .)
*34
Westwoods is located in hydrogeologic Zone IV, and adjacent to
Zone III. (S125, at 14 and Figure 6; D298.) Zone
III is an area that has good ground water quality
in both the Upper Glacial and Magothy aquifers. (S125, at
14.) Zone IV encompasses the northern and eastern portion of
the South Fork, and is characterized by shallow flow systems
that discharge directly into streams and marine waters. (S125, at
14 and Figure 6; S162, at 9; D298.)
There
are no named streams, ponds, or lakes on Westwoods, but
nearby or adjacent water bodies include: (a) Great Peconic Bay
(approximately 19,100 acres), which borders the site to the north;
(b) Shinnecock Bay (approximately 4,550 acres), which is located approximately
one-half mile to the southeast; (c) Shinnecock Canal, which connects
Great Peconic Bay and Shinnecock Bay, is located approximately one-quarter
mile to the east at its closest point; (d) Squire
Pond (approximately 19 acres), which is located approximately one-quarter mile
to the northwest; and (e) Flanders Bay and Reeves Bay
(approximately 2,600 acres), which are located approximately 7 miles to
the west, at the westernmost area of the Peconic Estuary.
(S125, at 15.)
Westwoods
is located within the watershed of the Peconic Estuary. (S125,
at 15; Stipulation, dated January 16, 2007, Stip. No. 15).
Storm water and snow-melt water runoff in the watershed that
does not percolate to ground water is conveyed by overland
flow to Great Peconic Bay, and runoff from Westwoods and
other lands within the watershed have a cumulative qualitative and
quantitative impact on the Great Peconic Bay. (S125, at 15.)
The Great Peconic Bay is a part of the Peconic
Estuary, which separates the North and South Forks of the
eastern end of Long Island; the Peconic Estuary consists of
over 100 bays, harbors, and tributaries, and includes over 128,000
acres of land and 120,000 acres of surface waters. (S125,
at 15.) The Peconic Estuary is part of the Natural
Estuary Program (“NEP”),
which has designated it as an “Estuary
of National Significance.”
(S125, at 15.) The portion of the Westwoods property along
the shoreline of the Great Peconic Bay is within a
flood zone area. (S125, at 17 and Figure 9;
S137.) The Great Peconic Bay and the Shinnecock Canal have
been mapped by the DEC as tidal wetlands (littoral zone).
(S125, at 19; Stipulation, dated January 16, 2007, Stip No.
13.) Westwoods includes tidal wetlands along its Great Peconic Bay
shoreline. (S125, at 19; Stipulation, dated January 16, 2007, Stip.
No. 13.) A federal National Wetland Inventory map published for
the Mattituck quadrangle contains the Westwoods property and identifies wetland
habitats on the Westwoods property along the Great Peconic Bay
shore that coincide with the United States Geologic Survey mapping
of hydric soils, also an indicator of potential wetlands. (S125,
at 19-20.)
The
Coastal Area mapped by the NYSDOS includes a portion of
the Westwoods property north of Newtown Road within the coastal
zone for purposes of the federal Coastal Zone Management Act
and related New York statutes. (S156; S125, at 19-20.)
(2)
AIR RESOURCES
*35
Long Island, including Suffolk County, is in the Ozone Transport
Region and is within a moderate non-attainment zone for nitrogen
dioxide and ozone, two substances for which National Ambient Air
Quality Standards (“NAAQS”)
have been set. (S125, at 20-21.) Long Island, including Suffolk
County, is in the non-attainment zone for particulate matter (dust)
below 2.5 microns in size, a substance for which a
NAAQS has also been set. (S125, at 21.)
(3)
BIOLOGICAL RESOURCES
Terrestrial
habitats contribute to the area's community character, as well as
the well-being of the area's native species. (S125, at 21.)
Westwoods is covered primarily by a “Pitch
Pine-Oak Forest.”
(S125, at 21; Tr. 1842.) Extending shoreward (from north to
south), Westwoods has three primary zones-coastal, transitional, and terrestrial woodlands-that
contain the following ecological habitat types: maritime beach, maritime shrubland,
maritime oak forest, pitch pine slope, pitch pine oak forest,
successional maritime forest, successional old field, and maritime pitch pine
dune woodland. (S125, at 21; Tr. 1842-43.)
The
“maritime
oak forest”
habitat located on Westwoods has a high ecological value; the
habitat “maritime
pitch pine dune woodland”
that is on Westwoods has been assigned the highest value
available within New York for a habitat site because this
habitat is especially vulnerable to extinction. (S125, at 21-22; S152,
at 83, 123.) There is potential habitat on the bluff
area located on the northern Westwoods parcel for a plant
species known as the Nantucket juneberry, also known as the
Nantucket shadbush (Amelanchier
nantuckentensis
), an endangered species. (S125, at 27, Appendix B.)
Protection
and sustainable management of the Peconic Estuary and its resources-including
fish and shellfish-are critical to the community character and economic
well-being of eastern Long Island. (S125, at 27-31.) The Peconic
Estuary, to which Westwoods is hydrologically connected, is threatened by
algal blooms; nutrient pollution arising from fertilizer runoff; infiltration from
septic systems; storm water runoff and wastewater discharges; degradation and
destruction of natural habitats on land adjoining the estuary; pathogen
contamination of shellfish beds; and toxic chemical pollution from human
activities. (S125, at 28-30.)
Although
defendants' expert, James Mansky, states that Westwoods “is
classified as Coastal Oak-Heath Forest in accordance with the document
Ecological
Communities of New York State”
the Court credits the testimony of plaintiffs' expert, Robert Graver,
that the correct habitat classification of the Westwoods property is
pitch pine-oak forest. (S226, at 2; D259, at ¶
11; Tr.1954.) Westwoods is part of a continuous pine barrens
habitat that includes the Central Pine Barrens and possesses the
same habitat characteristics as the pitch pine-oak forest that comprises
much of the Central Pine Barrens.FN35
(S226, at 2-3; Tr.1955.)
FN35.
In any event, this dispute regarding classification is not critical
in the Court's analysis regarding the impact on the forest
on Westwoods from the development of the property.
*36
The forest on Westwoods can be characterized as one in
excellent condition that exhibits the appropriate stratification and structure of
a pitch pine-oak forest, has old-growth trees 90 to 110
years of age, does not have significant incursions of invasive
species, is relatively large and unfragmented by Long Island standards,
and supports many wildlife species indigenous to this habitat type.
(S226, at 4; S125, at 25-26; Tr.1954.) Large numbers of
small trees, mostly oaks, that were less than four inches,
as measured in diameter at breast height (“DBH”),
are present at Westwoods. (S226, at 4.) The presence of
small trees at Westwoods is evidence that forest regeneration is
actively taking place as older trees are lost to senescence,
disease, and blowdown, and thus is an indication of good
forest structure and vitality. (S226, at 4; Tr.1955.) Hundreds of
small pitch pines and dozens of small oak have become
established in the previously cleared five to ten acre area
at Westwoods, demonstrating that the cleared area is rapidly undergoing
reforestation. (S226, at 4.)
Approximately
30 species of birds were identified on Westwoods during two
short visits by Mr. Grover to Westwoods on April 12,
and August 9, 2006. (S226, at 5; Tr.1959.) The New
York State Breeding Bird Atlas divides the state into survey
blocks of nine square miles, and Block 7052A, which includes
the Westwoods property, covers much of the area known as
Hampton Bays. (S226, at 5.)
Interim
data for 2000-2005 shows 73 breeding species for the survey
block, of which at least 40 of these species nest
in the type of habitat provided by the Westwoods property;
since there is ample woodland habitat on the property, it
is reasonable to assume that all or most of these
species use the property for breeding purposes. (S226, at 5-6,
Exhibit l; Tr.1958-59.)
The
Westwoods property also supports habitat for New York Special Concern
Species, including the Eastern Box Turtle. (S226, at 5-6; Tr.1955-56.)
Other special concern species, including the Sharp-shinned Hawk and Cooper's
Hawk, would be expected on this property, based on habitat,
during the winter. (S226, at 6.)
O.
CURRENT COMMUNITY SERVICES IN SOUTHAMPTON GENERALLY AND AT WESTWOODS
Hospitals/medical
centers that serve the eastern Long Island area, including the
area of Westwoods, are Southampton Hospital (about 7.5 miles east,
in Southampton); Peconic Bay Medical Center, formerly Central Suffolk Hospital
(about 8 miles northwest, in Riverhead, New York); Eastern Long
Island Hospital (about 30 miles northeast, in Greenport, New York);
and University Hospital (about 33 miles northwest, at SUNY Stony
Brook, New York). (S125, at 37.) Ambulance service for the
area is provided by the Hampton Bays Volunteer Ambulance Corp,
Inc., Flanders-Northampton Volunteer Ambulance Co., Inc., Riverhead Volunteer Ambulance Corps,
Inc., Southampton Town Volunteer Ambulance Corps., and East Quogue Fire
Department (a volunteer fire department). (S125, at 38.) Fire and
rescue service for the area is provided by the following:
Hampton Bays Fire Department (about 2 miles southwest); Flanders Fire
Department (about 4 miles west); Southampton Fire Department (about 7.5
miles east); and Riverhead Fire Department (about 8 miles west).
(S125, at 38.) The Town of Southampton Police Department would
likely be the first responding agency in the event of
a police emergency at Westwoods. (S125, at 38.)
*37
Westwoods is located within the Hampton Bays Water District (“HBWD”).
(Stipulation, dated January 16, 2007, Stip. No. 8.) The HBWD
supplies potable water for commercial and domestic use, and also
provides fire protection water to businesses, schools, municipal agencies, apartment
complexes, and private homes in the community of Hampton Bays.
(S125, at 39.) As an undeveloped property, there is no
current water demand on Westwoods. (S125, at 39; Stipulation, dated
January 16, 2007, Stip. No. 11; Tr. 1843.)
Westwoods
is not served by a community sewer system or municipal
wastewater treatment plant, and in the absence of a community
sewer system, residential, commercial, and industrial businesses
must provide for their own wastewater treatment. (S125, at 40;
Tr. 1843.) Two options for wastewater disposal at Westwoods are
either a subsurface (on-lot septic tank with a leach field)
or on-site wastewater treatment facility. (S125, at 40.)
As
an undeveloped site, there is currently no demand for electrical
power at Westwoods. (S125, at 41; Tr. 1843.) An electrical
substation with a capacity of approximately 10 megawatts (“MW”)
is located south of Sunrise Highway about one-quarter mile from
Westwoods. (S125, at 41; D248.)
A
high pressure natural gas line is located approximately one-half mile
southeast of Westwoods, and runs north along Newtown Road and
terminates near Holtzman Drive southeast of Westwoods. (S125, at 41;
Stipulation, dated January 16, 2007, Stip. No. 19.) As an
undeveloped site, there is currently no demand for natural gas
at Westwoods. (S125, at 41; Stipulation, dated January 16, 2007,
Stip. No. 17; Tr. 1843.)
Because
the Town does not provide curbside collection or disposal of
solid waste, private collection service companies collect approximately one-half of
the residential waste stream and all of the solid wastes
generated by commercial, industrial, and non-hazardous institutional entities, as well
as farms; large-volume generators must arrange for private haulers to
collect and transport trash, recyclables, and construction/ demolition debris to
receiving centers located outside the Town. (S125, at 41.)
P.
SOUTHAMPTON DEMOGRAPHICS AND COMMUNITY CHARACTER
(1)
DEMOGRAPHICS
Suffolk
County's population on January 1, 2005 was estimated to be
1,483,396 persons, and is expected to increase between 2004 and
2030 by 19%. (S125, at 42.) In 1962, the County's
saturation population was projected to be 3.4 million people, but
a much lower saturation population is now expected due to
lower average household sizes, zoning changes, land preservation efforts, and
other measures taken by Southampton that also are designed to
retain community character. (S125, at 42.)
Southampton
is the largest and most populated of the five “East
End”
towns of Suffolk County with a population (as of January
2005) of 58,564 permanent residents, including 504 residents of the
Shinnecock Reservation (0.8% of the total Town populace). (S125, at
43.) The Southampton population swells dramatically during the summer tourist
season from the July 4th to Labor Day holidays, reaching
its peak in July and August at nearly triple the
year-round population, with the second-home population comprising the largest component
of Southampton's summer population. (S125, at 43; Tr. 1472-73.) Tourism
and the vacation home industry drive the Town's economy. (S125,
at 43.)
(2)
AESTHETICS
*38
Unimpeded views of the beach along the Great Peconic Bay
exist on Westwoods and adjacent properties, and recreational boaters and
other users of the Great Peconic Bay can view the
coastal bluffs, including the coastal transitional and terrestrial woodland zones.
(S125, at 44.) These visual resources are unique and important
visual corridors and vistas. (S125, at 44.) The coastal bluff
is an important local aesthetic resource that contributes to the
overall community aesthetics in the Town. (S125, at 44.) The
Sunrise Highway is a Scenic Road Corridor. (S125, at 45.)
Ambient sound levels on the Westwoods property are associated with
residential activity on the western, eastern, and southern boundaries. (S125,
at 45.)
(3)
COMMUNITY CHARACTER
Westwoods
is zoned residential 60,000 (“R-60”),
and is surrounded by lands zoned as residential 80,000 (“R-80”),
“R-60,”
and residential 15,000 (“R-15”),
where 80,000 sf., 60,000 sf., and 15,000 sf., respectively, are
the minimum lot sizes in the zoning classification. (S125, at
31-32, 47 and Figure 14; S167; T4.) Southampton's unique scenic
quality and sense of place is derived from the interrelationship
between rural farmland, areas of undeveloped open space, and the
hamlet centers. (S125, at 47.) This rural character, with significant
natural and historic resources, is the quality that maintains Southampton's
economic vitality as a visitor attraction, as well as an
attractive place to live and work. (S125, at 47; S167.)
Southampton's zoning is intended to maintain its natural, historic, and
scenic resources, green space and recreational areas, and promote affordable
housing. (S125, at 34-37; S167.) Southampton's zoning is also intended
to maintain a diverse economy that capitalizes upon but does
not erode the Town's natural, historic, and scenic resources, and
enhance its rural and historic scenery, beach, and recreational amenities,
and cultural and specialty retail amenities, while protecting the established
character and the social and economic well-being of both private
and public property. (S125, at 35-36; S167.)
Q.
THE NATION'S DEVELOPMENT PLAN FOR GAMING FACILITY AT WESTWOODS
The
Gaming Authority is an instrumentality of the Shinnecock Indian Nation.
(Stip. No. 49.) The Gaming Authority was formed by
the Nation in or about 2003 in order to enter
into a contract regarding gaming at Westwoods on behalf of
the Nation. (D237; D238; Tr. 2842.) The Gaming Authority entered
into a Development/Management Agreement (“Development/Management
Agreement”)
with Ivy Ong and Ong Enterprise, LLC (collectively, “Ong”),
dated May 1, 2003, for the development, construction, and operation
of a gaming facility at Westwoods. (D237.) The intent
of the parties to the Development/Management Agreement was that only
the parties to the agreement would have the right to
enforce any provisions of the Development/Management Agreement, and in particular,
that the State and the Town would not have any
right to enforce any provisions of the Development/Management Agreement. (D237,
at ¶
6.7; Tr. 2914-15.) A Closing Letter was executed on or
about March 19, 2004, between Ong and Gateway Casino Resorts,
LLC (“Gateway”),
with the consent of the Gaming Authority, assigning the rights
of the developer/manager set forth in the Development/ Management Agreement
to Gateway. (D239; Tr. 2924.) An Addendum to the Development/Management
Agreement was executed in or about March 2004, by the
Nation, between the Gaming Authority and Gateway. (D238.)
*39
Mr. Gumbs negotiated the Development/ Management Agreement on behalf of
the Nation and its Gaming Authority. (Tr. 2886.) The Development/
Management Agreement provides for an Initial Facility of approximately 61,000
sf. on a 15-acre tract of land on Westwoods (on
the south side of Newtown Road) capable of holding between
900-1000 gaming machines and 60 table games. (D237; D238.) The
Development/ Management Agreement also provides the developer/manager a right of
first refusal with respect to the expansion of gaming facilities
on other portions of Westwoods. (D237, at ¶
4.4; Tr. 2913-14.) The Gaming Authority, with approval of the
Nation, could enter into a contract with another developer for
development on those portions of Westwoods not the subject of
the Development/ Management Agreement and provide for development on those
portions of Westwoods, and it is the position of the
Nation that should its at-large council agree, the Nation could
develop all portions of Westwoods without regard to any New
York or local law. (Tr. 2916.)
The
Development/Management Agreement provides that the construction, maintenance, and operation of
any gaming facilities at Westwoods would be conducted “in
a manner which adequately protects the environment and the public
health and safety and for that purpose shall comply with
the requirements of all other applicable health, safety and environmental
standards enacted by the Tribe”
and would comply with “[t]hose
standards generally imposed by the laws and regulations of the
State relating to public facilities with regard to building, sanitary
and health standards and fire safety ...
[and] water discharges ...,”
except that if there are “federal
water standards specifically applicable to the Reservation [they] would preempt
such State standards.”(S237,
at ¶
6.7.) However, the Nation could excuse compliance with such standards
in the future. (Tr. 2915.) Moreover, although the Development/Management Agreement
as amended by the Addendum provides for the construction of
gaming facilities and related ancillary facilities on 15 acres at
Westwoods, the Nation could allow construction of additional facilities at
Westwoods on other portions of Westwoods in the future, including
portions of Westwoods north of Newtown Road. (S237, at ¶
4.4; S238, at (4), (10); Tr. 2929.)
R.
CONFIGURATIONS OF OTHER POTENTIAL CASINO COMPLEXES AT WESTWOODS
The
Nation and its Gaming Authority have received several gaming facility
configurations ranging from a temporary gaming facility to a multi-component
entertainment complex. (S113-16; S118-19.) In the past, the Economic Development
Committee of the Nation has considered economic development proposals that
include development constructed on portions of Westwoods north of Newtown
Road, including the construction and operation of a marina along
the north shore of Westwoods in Great Peconic Bay. (S113-16;
S118-19; Tr. 2906-08.)
The
following components of a casino complex have been identified by
developers and others for a casino complex at Westwoods: (a)
temporary casino (21,600 sf., including a 1,200-1,300 seat bingo hall);
(b) casino (130,000 sf.); (c) theater (3,000 seat, 50,000-60,000 sf.);
(4) retail (75,000 sf.); (d) hotels (1,604 rooms), including a
400 room, 6 floor hotel on northern parcel, a 600
room, 4 floor hotel on northern parcel, a 300 room
hotel on southern parcel, a 160 room hotel on southern
parcel, and a 144 room hotel on southern parcel; (e)
spa (25,000 sf.); (f) convention center (50,000 sf.); and (g)
restaurants. (S113-16; Tr. 1840, 1867-69.) The proposed 130,000 sf. casino
would contain 3,500 gaming devices and 140 table games, not
including “back
of the house”
space. (S113.)
*40
The Tribe may ultimately construct (or expand) a gaming facility
at Westwoods to the maximum extent possible, restricted only by
the physical dimensions of the site. (S125, at 1-2; Tr.
1840-41.) Speaking on behalf of the Nation, Mr. Gumbs has
said that “[o]nce
[the Tribe] get[s] a shovel in the ground we can
do whatever we want”
when discussing the building of a casino at Westwoods. (Tr.
1479-80.) Westwoods is physically large enough to accommodate a casino
and commercial and hotel components as described above, with enough
space to allow expansion of the casino to 340,000 sf.,
a casino complex similar in size to that at Foxwoods
in Connecticut that occupies approximately 54 acres. (S125, at 2-3
and Figure 2.)
Win
per unit per day (“W/U/D”)-how
much a gaming device wins per day on average within
a gaming facility-is a major factor in determining the potential
size of a gaming facility in terms of its overall
revenue profitability. (Tr. 1394, 1397.) At a minimum, a casino
with a W/U/D within the range of $180 to $240
is financially viable. (Tr. 3216.) It is a conservative conclusion
that a stand-alone casino at Westwoods comprising 162,500 sf., including
a 130,000 sf. casino and approximately 32,500 sf. of “back
of the house”
space, with 3,500 gaming devices and 140 table games, would
likely have a W/U/D of approximately $300, and would be
financially viable. (S1, at 3, 6-8; Tr. 1392-93, 1395-96.)
As
concluded by defendants' expert, Steven Rittvo, a casino at Westwoods
with 6,500 positions and a 1,000 person hotel would be
financially viable and have a W/U/D in excess of $220.
(S268; Tr. 3113-15; 3212-13, 3216.) Mr. Rittvo also concluded that
a casino in Mastic, New York, just 20 to 25
miles closer to New York City than Westwoods, with 6,500
gaming positions, would likely generate a W/U/D of more than
$300 and have an attendance in excess of 7.6 million
visitors per year. (Tr. 3228-30; S14, at 2-4; S271.)
The
difference in travel time from New York City and other
locations west of Mastic to Mastic, as compared with travel
time from New York City and other locations west of
Mastic to Westwoods-approximately 25 minutes-would not account for a significant
reduction in the number of visitors to or the financial
performance of a casino at Westwoods as compared to a
casino at Mastic. (S14, at 2-4.)
S.
PHYSICAL COMMENCEMENT OF CASINO PROJECT AT WESTWOODS
On
or about July 12, 2003, trees and brush were cleared
by use of a bulldozer and other construction equipment from
a portion of Westwoods located to the south of Newtown
Road. (Stip. No. 47.) The clearing of trees and brush
within Westwoods, on or about July 12, 2003, was done
by the Shinnecock Indian Nation in furtherance of its intention
to construct a building on a site within Westwoods located
to the south of Newtown Road, in which it intended
to conduct gaming. (Stip. No. 48.) Shinnecock Trustee Bess was
unable to identify any activity at Westwoods that occurred prior
to the clearing of land in 2003 for a casino
as to which he believed the Town could have enforced
its laws, but did not. (S248, at 212.) No evidence
was presented at trial by defendants that the Shinnecocks had
engaged in any activity or use of Westwoods prior to
their 2003 clearing of land for a casino with respect
to which the Town could have enforced any of its
zoning or land use laws, but did not.FN36
FN36.
Michael Benincasa is now the Chief Building Inspector for the
town. He testified that, before he did his 2003 physical
inspection of Westwoods following the clearing of the land for
the casino, he had never had any occasion to inspect
anything at Westwoods or enforce zoning or building regulations at
Westwoods because it was vacant property. (D364, at 51-52, 67.)
He understood at the time of the inspection that Westwoods
was zoned residential and advised the people present on the
property that clearing the land was a violation of the
Town Code, but he received no response. (D364, at 54-56.)
*41
Neither the Nation, nor any representative, Trustee, or any other
person or entity acting on the Nation's behalf, has done
the following: (1) applied for or received site plan approval
for any activity at Westwoods from the Town for any
purpose at any time (Stip. No. 51); (2) submitted environmental
or building permit applications to the Town showing compliance with
Town zoning laws, fire code regulations, and New York environmental
laws with respect to any building to be constructed at
Westwoods (Stip. No. 53); (3) applied for or received permission
from the Southampton Town Planning Board to engage in any
activities at Westwoods in preparation for its development (Stip. No.
55); or (4) applied for or received any permit or
approval from the Town for any activity conducted or to
be conducted on any portion of Westwoods (Stip. No. 56).
Prior to the summer of 2003, there had been publicized
efforts by the Shinnecocks to develop Westwoods. (Defs. Ans. to
Town Compl., at ¶
12.)
As
discussed supra,
the zoning classifications of the properties in the general vicinity
of Westwoods are predominately residential. (Tr. 253.) Southampton has a
Comprehensive Plan, which sets forth the Town's vision, goals, policies,
and objectives regarding growth within the Town, and which sets
forth where inhabitable land usage (residential, commercial, or industrial) should
go, and which seeks to avoid incompatible land usage. (Tr.
233, 235-36.) Southampton's adoption of zoning laws and zoning designations
is a mechanism by which the Town implements its Comprehensive
Plan, and the zoning laws and designations must be consistent
with the Comprehensive Plan. (Tr. 233-34.) Construction of a gaming
casino at Westwoods would be inconsistent with the Comprehensive
Plan. (Tr. 253-54.) There are no planning goals of the
Town that would be satisfied by the construction of a
casino at Westwoods. (Tr. 254.) The construction of a casino
at Westwoods would be entirely out of character and inconsistent
with the Comprehensive Plan. (Tr. 254.)
Chapter
325 of the Town Code contains the Town's wetland protection
law. (T268.) In Southampton, the purpose of a wetlands
permit is to ensure that any land disturbance or development
that occurs in wetlands or within 200 feet of wetlands
does not result in significant adverse impacts to wetlands. (Tr.
276-77.) Land disturbances or development within 200 feet of wetlands
includes the clearing of natural vegetation, grading, excavation, placement of
fill, building, structural changes, the installation of any man-made structure,
planting, or landscape activities. (T268; Tr. 277-78.) The northern parcel
of Westwoods contains or lies adjacent to wetlands, as the
Great Peconic Bay system is regulated as wetlands under Chapter
325 of the Town Code. (Tr. 279-80.)
The
Peconic Estuary, which includes the Great Peconic Bay, has been
designated as an estuary of national significance by the United
States Environmental Protection Agency. (Tr. 280.) Development on the northern
parcel of Westwoods could implicate Chapter 325 of the Town
Code. (Tr. 281.) Notwithstanding the Nation's stated intention to meet
or exceed federal, state, and local environmental standards in connection
with the development of a casino at Westwoods, the Nation
admitted that no assessment or analysis had been done to
determine whether it would be feasible to meet or exceed
those standards in connection with a gaming facility at Westwoods.
(Tr. 2886-88, 2947; D237, at 6.7; S248, at 193-94.)
T.
IMPACT OF CONSTRUCTION AND OPERATION OF A CASINO COMPLEX AT
WESTWOODS
*42
As set forth in detail below, based on the evidence
at trial, the Court concludes that the construction and operation
of a casino complex at Westwoods would disrupt the Town's
governmental administration and the settled expectations of Southampton residents, and
have disruptive environmental and traffic impacts in Southampton, as well
as in Suffolk County generally.
(1)
FAILURE TO COMPLY WITH STATE ENVIRONMENTAL PERMITTING REQUIREMENTS
None
of the defendants, nor any person or agency acting on
behalf of any of the defendants, has submitted any application
for any type of permit or authorization from New York
alleged by the plaintiffs to be required for development of
the Westwoods Parcel. (Stipulation, dated January 16, 2007, Stip. No.
1.) The construction of a casino at Westwoods likely would
require the following permits or authorizations that under New York
law are issued by the DEC: (a) a permit for
the construction and operation of a waste water treatment facility
that will discharge to ground or surface waters pursuant to
ECL Article 17; and (b) the SPDES General Permit for
Stormwater Discharges from Construction Activity, Permit No. GP-02-01, pursuant to
ECL Article 17, titles 7 and 8, and ECL Article
70. (Stipulation, dated January 16, 2007, Stip. No. 27.) The
DEC would generally use certain procedures in conducting the assessments
or studies relating to the issuance of any permits or
authorizations in connection with the proposed construction of a casino
at Westwoods, including likely requiring the preparation of an environmental
impact statement (“EIS”)
with public notice and review.FN37(Stipulation,
dated January 16, 2007, Stip. No. 25.)
FN37.
The procedures are set forth in more detail in the
January 16, 2007 Stipulation, Stip. No. 25.
Neither
the Nation, nor any representative, Trustee, or any other person
or entity acting on its behalf, has submitted a completed
environmental assessment or any other form to the DEC with
respect to construction of any building to be constructed at
Westwoods. (Stip. No. 52.) No project for development of Westwoods
by the defendants, or by any person or agency acting
on behalf of any of the defendants, has been the
subject of a consistency review pursuant to the Waterfront Revitalization
and Coastal Resources Act, State Executive Law, Article 42 and
19 N.Y.C.R.R. Part 6. (Stipulation, dated January 16, 2007, Stip.
No. 2.) The Nation has enacted no environmental statutes, laws,
or regulations. (Tr. 2887.)
(2)
NON-TRAFFIC RELATED ENVIRONMENTAL IMPACTS
The
type of construction activities that reasonably could be expected for
a casino complex at Westwoods include the following: site clearing,
grubbing, and grading; excavation and fill activities; hauling of construction
materials, and of construction debris; transport of construction workers to
and from the site; material staging; sand mining; material backfilling;
excavation dewatering; storm water management; construction of foundations and facilities,
roadways, parking, signage, and lighting installation, or the extension of
infrastructure (water, sewer, electrical power, natural gas, telecommunications, and cable);
and site restoration and landscaping. (S125, at 3.)
*43
The types of equipment that would be required to construct
a casino complex include the following: earth-moving equipment (front loaders,
bulldozers, dragline, backfillers, scraper/graders, and trucks); materials-handling equipment (concrete mixers,
concrete pumps, a motor crane, and delivery trucks); and stationary
equipment (pumps, generators, compressors, lighting, fuel storage, dumpsters, roll-offs, and
other waste handling and storage equipment). (S125, at 3-4.) Construction
activities would likely extend over a 24-month time period based
on an 8 hours per day, five to six days
per week schedule. (S125, at 4.) A casino at Westwoods
most likely would operate 24 hours per day, 7 days
per week, consistent with other existing casinos in the northeast
such as Foxwoods Resort Casino, Mohegan Sun, and Turning Stone
Resort Casino. (S125, at 4.) Impacts on adjacent properties, including
those associated with operational noise and traffic, would be expected
to occur during the 24-hour period. (S125, at 5.)
As
set forth below, even without consideration of the adverse impacts
arising from increased traffic to and from an operating casino
at Westwoods, construction and operation of a casino at Westwoods
would have disruptive practical consequences, disrupt settled expectations of the
local communities and residents surrounding Westwoods, and seriously burden the
administration of state and local governments.
(A)
IMPACTS TO GEOMORPHOLOGY
On
the approximately five to ten acres that have been cleared
at the Westwoods site, no measures are present to prevent
erosion of cleared soils and vegetation, and new erosion patterns
are visible from the action of storm water runoff on
the site. (S125, at 49.) Because of the large sand
content (70 to 100%) of the soil, it could be
mined for use as a sand source, and development projects
in the region are known to remove (mine) sand for
sale elsewhere, while lower quality fill is hauled to the
development site as replacement material. (S125, at 11.)
Potential
short-term (construction-related) adverse impacts on geological resources from the construction
of a casino complex at Westwoods include the following: (a)
increased erosion due to the clearing of existing soil-stabilizing vegetation;
(b) increased erosion and sediment transport due to additional site
clearing, grading, and the stockpiling of soils at the site;
(c) the absence of erosion control measures will result in
soil erosion and sedimentation of adjacent, downgradient surface waters in
the Peconic Bay watershed, including the nearshore area of the
Great Peconic Bay; (d) erosion, storm water runoff, and flooding,
or ice formation in the winter, have the potential to
impact NYS Route 27 due to the proximity of the
southern boundary of the property immediately adjacent to the highway's
right-of-way corridor; (e) degradation of surface and ground water quality
from the discharge of chemicals, solvents, and petroleum products from
heavy machinery and other construction uses; and (f) impacts on
air quality due to dust generation during construction. (S125, at
49-50; Tr. 1845.)
*44
Potential significant long-term adverse impacts to geological resources from the
operation of a casino complex at Westwoods include the following:
(a) incompatibility of facility design with on-site geologic conditions (i.e.,
seismic zones, soils, and subsurface conditions), and consequent safety risks
if facility designs are not prepared consistent with established practices
for seismic protection and geotechnical considerations and are not subject
to appropriate review and oversight; (b) permanent modifications to existing
topography due to site grading activities resulting in the loss
of the scenic quality afforded by the undulating (morainic) characteristics
of the site; (c) degradation and instability of the existing
coastal bluff through reduction in vegetation cover, increased slopes, and
consequent erosion, affecting the surrounding land and the shape and
form of the beach below, and increasing sedimentation in the
nearshore water; (d) accelerated erosion of the bluff due to
a significant increase in human activities on the steeply-sloped bluff,
the increased numbers of people who will have uncontrolled access
to the bluff, and the increased quantity of storm water
runoff; (e) if wastewater discharges are directed to the bluff
directly or indirectly, accelerated erosion of the bluff; (f) as
a result of the instability to and deterioration of the
bluff, reduced capacity for the bluff to act as a
natural protective barrier against wave energy and high water; (g)
significantly increased erosion potential due to regrading, vegetative clearing, and
an increase in storm water runoff resulting from the creation
of impervious surfaces (e.g.,
rooftops, parking lots, sidewalks, and roads); (h) in full development
of property, adverse impacts on the surrounding residential neighborhoods from
eroding soils, sediment transport, increased storm water runoff, and localized
flooding; and (i) impairment of the natural viewshed due to
changes in local topography, the deterioration of the coastal bluff,
and the imposition of structures on the viewshed that includes
the bluff and the beachfront at the Great Peconic Bay.
(S125, at 50-51.)
(B)
IMPACTS TO WATER RESOURCES
Potential
short-term (construction-related) adverse impacts to water resources from the construction
of a casino complex at Westwoods during construction include the
following: (a) off-site sediment transport resulting in sedimentation of surrounding
surface waters including the nearshore area of the Great Peconic
Bay, degrading water quality of affected surface waters and adversely
affecting aquatic habitats, recreational uses, and aquaculture; (b) deposition of
eroded sediments on adjacent properties resulting in drainage and aesthetic/landscaping
problems that can be costly for homeowners to address; (c)
discharge of petroleum products stored in tanks (e.g.,
diesel fuel for construction vehicles and gasoline for other machinery)
and 55-gallon drums (e.g.,
lubricating oils), solvents in containers up to 55-gallons in size
for parts cleaning and related machinery maintenance, as well as
cleaning agents, paints, thinners, and other materials containing solvents, all
of which are subject to leaks, spills, and general releases
thereby impacting surface and ground water quality and aquatic habitats
on- and off-site; and (d) impacts on tidal wetlands and
buffer along the Great Peconic Bay shoreline, including removal of
wetland vegetation and habitat, and erosion and sedimentation. (S125,
at 52-53.)
*45
Potential long-term impacts to water resources from the operation of
a casino complex at Westwoods include the following: (a) because
of the significant amount of impervious surfaces (e.g.,
parking lots, buildings, sidewalks, and paved areas), reduced opportunities for
rainfall and snowmelt to percolate to ground water to recharge
the aquifer; (b) an increase in runoff with the potential
to negatively impact surface water quality; (c) increased nutrient loading
of nearby surface waters, including the Peconic Bay Estuary, due
to increases in storm water runoff at the site from
the increase in impervious surfaces; (d) modifications to the existing
floodplain elevation along the Great Peconic Bay shoreline and construction
of facilities within the designated flood zone altering the conveyance
of floodwaters that can result in flooding of adjacent lands
and destabilization of the coastal bluffs; (e) direct (i.e.,
filling) or indirect (i.e.,
disruption of drainage patterns and hydraulic inputs) impacts on nearshore
wetland habitats and associated values and functions; (f) increased instability
of the bluff resulting in sedimentation of surrounding surface waters
including the nearshore area of the Great Peconic Bay, degrading
water quality of affected surface waters, and adversely affecting aquatic
habitats, recreational uses and aquaculture; (g) removal of wetland vegetation
and wetland habitat erosion and sedimentation, and permanent damage to
wetland functions and values; and (h) increase in the contribution
of toxic compounds to surface waters, including the Peconic Estuary,
due to the use of toxic substances at Westwoods. (S125,
at 53-54; Tr. 1846-47.)
(C)
IMPACTS TO AIR RESOURCES (NON-TRAFFIC RELATED)
Potential
adverse long-term impacts on air resources include emissions from the
following: (a) natural gas or fuel oil fired boilers; (b)
emergency/standby generators; (c) motors associated with fire pumps; (d) heating,
ventilation, and air conditioning (“HVAC”)
systems; and (e) off-site power generating facilities required to provide
electricity to the site. (S125, at 56.)
(D)
IMPACTS TO BIOLOGICAL RESOURCES
Potential
short-term (construction-related) adverse impacts on biological resources (other than fish,
shellfish, and bay biota) from the construction of a casino
complex at Westwoods include the following: (a) short-term displacement of
species during construction phase activities; and (b) loss of wildlife
food and cover, as well as disruption of normal nutrient
cycling during construction activities. (S125, at 60.)
Potential
long-term significant adverse impacts on biological resources (other than fish,
shellfish, and bay biota) from the operation of a casino
complex at Westwoods include the following: (a) the permanent loss
of maritime pitch pine dune woodland habitat at Westwoods, which
has been identified as being rare, (SI), and especially vulnerable
to extinction in New York; (b) habitat modifications and/or degradation
due to vegetative clearing and removal of trees (including trees
90 to 110 years old); (c) loss of habitat (maritime
oak forest) identified as having limited acreage, (S3), or vulnerable
to extinction, (S2), in New York; (d) removal, significant reduction,
or segmentation of the coastal, transitional, and/or woodland zones characterizing
Westwoods; (e) loss of diverse habitats on Westwoods, several of
which are fragile, not well-represented in New York, and subject
to extinction; (f) introducing of “edge”
habitat along the perimeter of the clearing that will facilitate
the incursion of undesirable species into the interior portions of
the woodland areas, resulting in the displacement of native birds;
(g) degradation of important coastal habitats and consequent impacts due
to construction and operation of gaming-related facilities and influx of
a significant concentration of people (casino patrons) along the Great
Peconic Bay shoreline; (h) increased development pressures of Town lands
from businesses that provide support to the casino development (such
as suppliers, vendors, maintenance and repair, and business support) or
businesses that will leverage the casino operations for their own
gain (such as other entertainment, restaurant, hotel, retail, or service
ventures). (S125,
at 61; S226, at 3; Tr. 1848, 1957-58.)
*46
The lights, noise, and activity associated with the use of
a casino complex at Westwoods will further disturb the wildlife
in any remaining woodlands, further degrading the woodlands' value as
a habitat. (S226, at 4.)
(E)
IMPACTS TO LAND USE
Potential
long-term adverse impacts related to land use from the operation
of a casino complex at Westwoods include the following: (a)
reductions in the residential quality of life in areas surrounding
Westwoods resulting from lighting, noise, traffic, litter, the presence of
multi-story buildings, the absence of buffers, and other operational characteristics
of a casino; (b) impairment of the area's rural character
resulting from, among other things, the daily assembly of a
large number of people on the surrounding streets and increased
commercialization; (c) increased potential for accidents, and increased dust and
vehicle air emissions that can adversely affect the health, safety,
and welfare of the existing, surrounding residents; (d) loss of
the ability for the Town to manage its finite infrastructure
resources consistent with the Comprehensive Plan; (e) loss of a
vegetative buffer between Westwoods and adjacent residential land uses; and
(f) increase in ambient noise in the adjacent residential neighborhoods
from truck and other vehicular traffic. (S125, at 63-64;
Tr. 1848-50.)
(F)
IMPACTS TO COMMUNITY SERVICES
I.
FISCAL IMPACTS
The
daily number of employees at a 130,000 sf. casino (with
an additional 32,500 sf. as “back
of house”
space) at Westwoods, with related hotels and related facilities, are
to be estimated between 3,227 and 4,927, with approximately one-third
of the employees on site at one time.FN38(S16,
at ix and 4 (Table 3).) The daily number of
visitors at a 130,000 sf. casino at Westwoods with related
hotels and related facilities is estimated to be between 17,994
and 35,000. (S16, at ix, and 4 (Table 3).) The
total daily population at a casino that would be built
at Westwoods is estimated to be between approximately 21,000 and
40,000, with between approximately 10,500 and 19,500 persons present at
any one time. (S16, at ix and 4 (Table 3).)
FN38.
As noted above, it was estimated that the130,000 sf. casino
would also include 32,500 sf. for “back
of house”
space. As discussed supra,
based upon the expert evidence offered at trial, the Court
concludes that a casino of this size certainly would be
economically feasible at Westwoods.
If
the Nation exercises exclusive sovereignty over Westwoods, no revenue to
the Town will be generated by local taxes during the
operation of a casino at Westwoods, although Town costs for
the provisions of local services will increase. (S16, at viii,
3, 34.) The total cost of municipal services for the
Town are likely to increase by $21.1 million if a
130,000 sf. casino with related hotels and facilities operates at
Westwoods over a build-out period of 4 and one-half years
and the first 1 and one-half years of operation. (S16,
at xiii, 2, 34-38.) For example, the total cost of
municipal services for the HBWD and Ambulance District are likely
to increase by over $5.3 million if a 130,000 sf
casino with related hotels and facilities operates at Westwoods over
a build-out period of 4 and one-half years and the
first 1 and one-half years of operation. (S16, at xiii,
36-37.) Moreover, the total cost of State Police services is
estimated to increase by over $2.1 million if a 130,000
sf. casino with related hotels and related facilities operates at
Westwoods over a build-out period of 4 and one-half years
and the first 1 and one-half years of operation. (S16,
at xiv, 38.)
II.
OTHER IMPACTS RELATING TO COMMUNITY SERVICES
*47
The operation of a casino complex at Westwoods, the influx
of a significant amount of people to one site, the
increased traffic congestion on local roads (discussed infra
), and the incompatible nature of the proposed use with
the surrounding existing residential uses will cumulatively result in the
increased need for emergency services including the following: (a) police
and security services to respond to emergency situations including theft/burglary,
drunk driving, underage drinking, noise complaints, and trespass on adjacent
residential properties; (b) police and security services to manage potential
conflicts between users of the gaming facilities and adjacent landowners;
(c) police and emergency services associated with increases in traffic
accidents; (d) police services associated with managing traffic flow; (e)
emergency services associated with responding to health-related emergencies at Westwoods;
and (f) emergency services associated with fighting fires (including potential
multi-floor fires) at Westwoods. (S125, at 66, 77; Tr. 1851.)
(G)
IMPACTS TO POTABLE WATER SUPPLIES AND DISTRIBUTION
The
existing water transmission network is unable to support necessary fire
flow demands. (S125, at 67.) Development of a casino at
Westwoods would significantly increase potable water demand. (S125, at 68.)
The current system pumping capacity of 6.7 million gallons per
day (“MGD”)
cannot accommodate a Westwoods casino development. (S125, at 67-68.) The
existing water transmission system, consisting of combinations of 4-inch, 6-inch,
8-inch, 10-inch, and 12-inch diameter mains, depending on which water
supply pump stations may be providing water at any given
time, will not support a seasonal population water demand with
the addition of a casino at Westwoods. (S125, at 68.)
Modifications
to the HBWD's existing water supply, storage, and conveyance system
would be necessary to support a casino at Westwoods. (S125,
at 68; Tr.1902-03, 3300-01.) Potential long-term adverse impacts from modifications
of the HBWD's existing water supply, storage, and conveyance system
include the following: (a) localized drawdown of ground water elevations
and increased salt water intrusions from pumping of an on-site
well supply or increased pumping of existing municipal supplies to
meet Westwoods's water demands; (b) increased cost of potable water
supply resulting from the cost of new well sites, acquisition
of buffer areas around well sites, pipes, and related equipment
necessary to pump and convey additional supplies of potable water;
and (c) reduced groundwater supplies for use as potable water
for uses other than the casino at Westwoods. (S125, at
14, 68; Tr.1923-24.)
Potential
adverse impacts from the construction and use of an on-site
water supply source (i.e.,
well(s) and a storage facility (for fire flows)) to provide
potable water for a casino include the following: (a) increased
intrusion of salt-water into the Upper Glacial aquifer, thus limiting
its usefulness as a source of water supply for the
HBWD; (b) localized drawdown of ground water due to pumping
of an on-site well supply; (c) impairment of the area's
viewshed resulting from the installation of a water storage tank;
(d) additional site clearing associated with constructing water supply facilities;
(e) additional security measures associated with protecting water supply; and
(f) additional treatment chemicals on site and increased potential for
spills associated with water treatment. (S125, at 68.)
(H)
WASTEWATER TREATMENT IMPACTS
*48
Operation of a 130,000 sf. casino at Westwoods will require
the construction and operation of a wastewater treatment facility capable
of handling a design wastewater peak flow rate of 1.44
MGD with effluent discharges to either groundwater or surface waters.
(S125, at 69.)
Because
estimated sewage flows exceed the maximum population density equivalent flow
rate of approximately 46,200 gallons per day that could be
treated using an on-lot subsurface septic system, a wastewater treatment
facility will be necessary in order to prevent contamination of
groundwater or surface waters if a 130,000 sf. or a
300,000 sf. casino were to operate at Westwoods. (S125, at
69.)
If
a casino of 130,000 sf. or larger were opened at
Westwoods, the potential long-term environmental impacts of a discharge to
groundwater or surface waters, even with a wastewater treatment plant,
include the following: (a) reduction in groundwater and surface water
quality resulting from the discharge of nutrients and oxygen-demanding substances
and disinfectants, which are residual in the treated wastewater; and
(b) increased likelihood of algal blooms due to nutrient discharges
to nearshore waters. (S125, at 69.)
(I)
SOLID WASTE IMPACTS
Potential
adverse environmental impacts associated with the collection, on-site storage of
solid wastes, and subsequent hauling to offsite transfer/disposal facilities from
a casino complex at Westwoods include the following: (a) generation
of odors from stored solid wastes causing nuisance conditions to
neighboring residential properties; (b) visual impairment due to litter generated
by visitors and wastes dropped along local roads; (c) increased
noise resulting from the operation of solid waste compactor units
and trucks hauling solid wastes to off-site transfer/disposal facilities; and
(d) potential for increased numbers of vermin (i.e
.,
rodents and insects) and resultant health and safety issues. (S125,
at 73.)
(J)
AESTHETIC IMPACTS
Short-term
and long-term aesthetic impacts from construction and operation of a
casino complex at Westwoods include the following: (a) encroachment on
setbacks and height restriction exceedances typically applied to residential areas
(if there is maximum build-out); (b) visual impacts on the
coastal bluffs and scenic highway (Sunrise Highway); (b) significant changes
in the viewshed from the Great Peconic Bay; (c) significant
loss (if not elimination) of the tree buffer between the
Westwoods site and adjacent residential land uses; (d) increased noise
due to significant traffic increases on Newtown Road and Sunrise
Highway; (e) increased noise due to day-to-day operations such as
deliveries and workers' entering and exiting the establishment; (f) increased
noise due to building HVAC units and restaurant exhaust fans;
(g) irreversible changes to the neighborhood and Town community character;
(h) light pollution from facility and parking lot lighting; and
(i) noise from facility patrons. (S125, at 75-76.)
(K)
IMPACTS FROM ENERGY INFRASTRUCTURE CONSTRUCTION AND OPERATION
*49
Potential adverse short-term and long-term impacts from the construction of
electrical transmission lines to the site to provide the necessary
energy needs of facilities at Westwoods include the following: (a)
disruption of traffic along residential roads during construction causing potential
congestion, as well as safety issues (e.g.,
traffic accidents and injuries); (b) particulate air emissions during construction
potentially resulting in visual impairment and health-related respiratory effects (e.g.,asthma
and reduced lung capacity); (c) increased noise impacts on neighboring
residential properties during construction; (d) additional growth inducing aspects and
associated impacts from increasing electrical capacity to the area; (e)
impairment of the area's viewshed due to overhead power lines
and poles; and (f) traffic disruption during routine maintenance of
the power lines and poles. (S125, at 56, 71-72.)
Potential
adverse long-term impacts from the extension of a natural gas
supply line to Westwoods to provide for on-site natural gas
and the operation of a cogeneration facility in lieu of
extension of high power lines include the following: (a) an
increase in the localized area of criteria air pollutants including
carbon monoxide (“CO”),
hazardous air pollutants (“HAPs”),
greenhouse gases such as nitrogen oxides (“NOx”),
particulate matter equal to or less than 10 microns (“PM10”),
sulfur dioxide (“SO2”),
and volatile organic compounds (“VOCs”);
(b) ground level ozone formation as a result of NOx,
VOC, and CO emissions; (c) visibility impairment impacts as a
result of NOx and S02 emissions; (d) acid rain impacts
as a result of NOx and SO2 emissions; (e) traffic
disruption for routine maintenance of the natural gas lines; and
(f) additional growth-inducing aspects and associated impacts from increasing natural
gas capacity to the area. (S125, at 57-58.)
Potential
adverse long-term impacts from the operation of on-site storage of
distillate oil and an on-site distillate oil-powered cogeneration facility, such
as a No. 2 fuel oil powered cogeneration facility, include
the following: (a) an increase in the localized area of
criteria air pollutants including CO, HAPs, NOx, PM10, S02, and
VOCs; (b) ground level ozone formation as a result of
NOx, VOC, and CO emissions; (c) visibility impairment impacts as
a result of NOx and S02 emissions; (d) acid rain
impacts as a result of NOx and S02 emissions; (e)
potential for spill or leaks of fuel oil during storage
tank re-filling operations; (f) potential for spill or leaks from
the storage tanks during normal facility operations or catastrophic failure;
(g) potential contamination of surface and ground water resources due
to spills or leaks; and (h) roadway congestion and safety
concerns due to daily trucking of fuel oil deliveries on
residential roads in order to access the site. (S125, at
58.)
(L)
TRAFFIC-RELATED IMPACT
As
set forth below, the Court concludes that the operation of
a casino at Westwoods would have substantial disruptive impacts on
the community due to increased traffic.
1.
TRAFFIC ANALYSIS
*50
The engineering firm of Greenman-Pedersen, Inc. (“GPI”)
was retained by the State to conduct an analysis of
the traffic impacts that would be created by the construction
and operation of a casino complex at Westwoods. (S108, at
2; Tr. 1519.) The traffic impact analysis was conducted by
the Transportation Service Division of GPI, headed by Michael J.
Salatti, a Professional Engineer and a Professional Transportation Operations Engineer.
(S108, at 2; Tr. 1510-11, 1514, 1519.) The Court found
this analysis to be credible and reliable in determining potential
traffic impact and the results of that study are summarized
below. In analyzing the traffic impact of a proposed land
use, traffic engineers assume a “reasonable-worst-case”
scenario in order to ensure that all the actual impacts
are assessed and addressed.FN39(Tr.
1528, 1530.) In order to analyze a “reasonable
worst-case”
scenario, GPI analyzed the traffic impacts of a casino complex
at Westwoods during the peak traffic hours in the peak
summer season. (S77, at 6-7.)
FN39.
GPI's analysis is contained in an initial report and an
addendum to that report. (S77; S108.) GPI also prepared a
rebuttal report addressing the analysis of defendants' experts. (S95.)
2.
2006 (BASELINE) TRAFFIC
Traffic
on the east end of Long Island has been growing
progressively slower and more congested since the 1990s. (Tr. 1438-39.)
People driving to the Hamptons from the New York City
area take the Long Island Expressway to CR 111 to
SR 27 as the preferred route. (Tr. 1445-46, 1449.) There
currently is congestion on CR 111 during the peak periods
of Friday afternoon and Saturday morning going eastward and Sunday
afternoons and Monday mornings going westward during the months of
April through October, and particularly heavy congestion in the months
of July and August during such periods, and including Thursday
nights going eastward. (Tr. 1449-50.) The Hamptons Bottleneck is where
SR 27 becomes CR 39 going eastward near the intersection
of SR 27/CR 39 and North Road. (Tr. 1452-53.)
The
Town has legitimate concerns that changes to improve traffic on
SR 27/CR 39 and to relieve the traffic at the
Hamptons
Bottleneck have created safety problems. (Tr. 1458-59.) In addition, congestion
on SR 27 and CR 39 east of Southampton has
not been relieved by measures addressing congestion at the Hamptons
Bottleneck. (Tr. 1459-60, 1468.)
Traffic
at the traffic circle on SR 24 is very heavy
with severe congestion in various directions along the circle's entry
points. (Tr. 1448.) There are backups and heavy traffic blocking
SR 24 leading to the intersection of SR 24 and
Old Montauk Highway. (S95, at 31-33; Tr. 1464-65.)
The
roads around Westwoods are smaller, winding residential roads without shoulders
and curbs and usually without sidewalks and street lights, and
are inappropriate for travel by tour buses. (Tr. 1466-67.) GPI
analyzed current traffic impacts in the vicinity of Westwoods in
April and June of 2006. The primary study area included
roadways close to the project site that would receive the
maximum number of vehicle trips generated by the proposed casino
complex at Westwoods. The secondary study area encompassed locations further
from the site and included major intersections, ramps, weaving areas,
and corridors on roads from the New York. City metropolitan
area to Westwoods. (S77, at 7-9.)
3.
BUILD CONDITION 2010 (TRAFFIC IN 2010 WITH CASINO COMPLEX AT
WESTWOODS)
*51
The traffic volume estimated for the “2010
Build Condition”
consists of traffic capacity without a casino complex (the “No-Build
2010 Condition”)
on the primary and secondary street network FN40
plus the new traffic generated by operation of a casino
complex at Westwoods for the Friday and Sunday PM peak
traffic hours during the peak summer season. (S77, at 26.)
GPI assumed the following elements of a casino complex at
Westwoods when calculating vehicle traffic generated by its operation: (a)
casino (130,000 sf. with 4,785 gaming positions); (b) theater (50,000-60,000
sf. with 3,000 seats); (c) retail (75,000 sf.); (d) casino
hotel (600 rooms, 4 stories); (e) casino hotel (400 rooms,
6 stories); (f) spa (25,000 sf.); (g) convention center (50,000
sf.); (h) temporary casino (21,600 sf.); (h) free-standing hotels (604
rooms); and (i) free-standing restaurants (500 seats). (S77, at III
and 27.)
FN40.
To estimate traffic impacts in the 2010 No-Build Condition, GPI
assumed that the casino complex at Westwoods would begin operating
in 2010 and a traffic growth rate of 2% per
year was assumed based on a stipulation between the parties
that traffic would grow at a yearly rate of between
2 and 2 1/2 percent. Based on this growth
rate, GPI assumed that traffic volumes in 2010 would be
8 percent higher than in 2006. (S77, at 19; Tr.
1551-52.)
In
2010, the casino complex at Westwoods would generate about 39,681
new daily vehicle trips during a typical peak season Friday
and about 47,292 new daily vehicle trips during a typical
peak season Sunday. (S108, at 11.) During peak traffic hours,
the increase in vehicular activity would include 3,009 new vehicle
trips during a summer Friday peak hour and about 3,689
new vehicle trips during a summer Sunday peak hour. (S108,
at 11.) FN41
FN41.
With respect to defendants' traffic volume estimates, the Court finds
a number of flaws in the methodology used by defendants'
expert, Mr. Rittvo, including the use of a gravity model
to generate trips to a particular land use (rather than
vehicle counts at similar land uses), which resulted in a
significant disparity in his trip rates when compared to ten
published studies of casino traffic generation. (S95, at 3-5; D328,
at 49-51; Tr. 3772-73.)
4.
TRAFFIC CAPACITY ANALYSIS
GPI
considered two alternates in determining the traffic impacts from a
casino complex at Westwoods. (S77, at 36.) In “Build
Alternate 1,”
GPI assumed that Westwoods cannot be directly accessed from Sunrise
Highway and vehicles traveling to the casino complex on Sunrise
Highway would have to use either Exit 65 or Exit
66 and then travel along the local roadways, including North
Highway, Newtown Road (CR 62), Squiretown Road, and Montauk Highway
(SR 27A), to reach Westwoods. (S77, at 36-37; Tr. 1522.)
In
“Build
Alternate 2,”
GPI assumed that ramps would be built from Sunrise Highway
to Westwoods. One ramp would provide direct access for eastbound
traffic on Sunrise Highway (SR 27) to Westwoods, one ramp
would provide direct access for westbound traffic from Westwoods to
the Sunrise Highway, and one ramp would provide direct access
for westbound traffic on Sunrise Highway from east of the
Shinnecock Canal to Westwoods. (S77, at 37; Tr. 1578-80 .)
Visitors to the casino complex from east of the Shinnecock
Canal would have to return on local streets. (S77, at
37.)
GPI
conducted traffic capacity analyses for the two alternates using SYNCHRO
and HCS software. The traffic impacts of the Westwoods casino
complex were assessed by comparing traffic impacts in the No-Build
2010 Condition with Build Alternates 1 and 2. (Tr. 1547-52.)
These analyses resulted in the following data: Eight of the
nine signalized intersections analyzed would be operating under constrained traffic
conditions during either the Friday and Sunday peak traffic hours
under both Build Alternates 1 and 2, but the impacts
would be more severe under Build Alternate 1. Of the
eight intersections, four would be operating under constrained conditions during
both Friday and Sunday peak hours, two would be operating
under constrained conditions on Friday only, and the other two
would be operating under constrained conditions on Sunday only.
(S108, at capacity analysis summary tables; Tr. 1585-87.) Twelve of
the fifteen unsignalized intersections would be operating under constrained traffic
conditions in Build Alternate 1. Eleven intersections will be operating
under constrained conditions during both the Friday and Sunday peak
hours and one will be operating under constrained conditions only
during the Sunday peak hour. Five unsignalized intersections will be
operating under constrained traffic conditions under Build Alternate 2 during
both Friday and Sunday peak hours. (S108, at capacity analysis
summary tables.) The off-ramp at westbound Sunrise Highway (SR 27)
and northbound CR 111 would be operating under constrained traffic
conditions under both Build Alternates 1 and 2. In addition
to this ramp, Build Alternate 2 would also result in
traffic constraints at the off-ramp at westbound Sunrise Highway (SR
27) and northbound Route 24 operating at the lowest level
of service. This ramp would not operate under constrained conditions
under the No-Build 2010 Condition. (S108, at capacity analysis summary
tables.) The freeway weaving segments at Sunrise Highway (SR 27)
westbound between NYS Route 24 On/Off ramps would operate under
constrained traffic conditions under both Build Alternates 1 and 2.
(S108, at capacity analysis summary tables.) Based upon the data,
GPI concluded:
*52
These capacity constraints and delaysassociated with the proposed project would
have a negative cumulative impact on the overall traffic operations
of the surrounding roadway network. Thus, the individual delays and
queues at intersections would collectively result in a gridlock situation
under Alternate 1 and significantly high traffic impacts under Alternate
2, when compared to the No-Build 2010 Conditions. The local
streets would be unable to accommodate the newly added traffic
under these conditions....
In summary, the analyses conducted for this assessment have indicated,
even under the reasonable scenario we have assumed, that the
traffic impacts imposed upon the existing road network would be
overwhelmingly significant, imposing lengthy delays, creating extraordinary queues and resulting
in degradation of safety.
(S77,
at V.)
5.
DEFENDANTS' TRAFFIC EXPERT
As
a threshold matter, because defendants' traffic analysis expert, Sam Schwartz,
used project-generated traffic volumes for his traffic impact analysis from
Mr. Rittvo (Tr. 3771, 3780), the reliability of Mr. Schwartz's
analysis is undermined by the flaws in Mr. Rittvo's estimates.
There are also flaws in the defendants' traffic impact analysis
(S95, at 24-48), which the Court believes further contribute to
an underestimation of the traffic impact by a casino at
Westwoods.
In
any event, Mr. Schwartz conceded that, in analyzing the casino
currently proposed by the defendants (with 1,310 gaming stations and
no hotel), certain traffic engineering changes would need to be
made in order for traffic to operate at a “reasonable”
level, such as upgrading or introduction of traffic signals, and
some redesign of several intersections. (D320, at 5-6; D321, at
1; Tr. 3541.) Although he classifies these improvements as “routine,”
it is far from clear that these modifications will not
implicate other traffic issues and considerations, or that they will
necessarily alleviate the problems caused by the additional traffic. (S95,
at 40-45.)
Moreover,
Mr. Schwartz conceded that traffic generated by the casino in
the constrained scenario (with 3,000 gaming stations and a 450-room
hotel) and the unconstrained scenario (with 6,500 gaming stations and
a 1,000-room hotel) would cause unreasonable disruption in the area
of Westwoods in the absence of direct access ramps from
Sunrise Highway to the casino. (Tr. 3935-37.)
Defendants
presented no evidence concerning when, by whom, or at whose
cost improvements described by Mr. Schwartz to any intersections intended
to reduce traffic impacts would be accomplished. Moreover, there are
other legal hurdles regarding the building of direct ramps to
Westwoods from Sunrise Highway, which plaintiffs have failed to address.
Specifically, the portion of SR 27 commonly known as Sunrise
Highway, which bisects the southern portion of the Westwoods Parcel,
is a New York highway. (Stipulation, dated January 16, 2007,
Stip. No. 20.) There is currently no direct vehicular access
to Westwoods from State Route 27. (Stipulation, dated January 16,
2007, Stip. No. 21.) Currently, the only vehicular access onto
the Westwoods site from a public street is from Newtown
Road. (Stipulation, dated January 16, 2007, Stip. No. 22.) None
of the defendants, nor any person or agency acting on
behalf of any of the defendants, has sought any authorization
or permit from New York or the NYDOT alleged by
the State to be necessary to build a highway or
ramp connection from Sunrise Highway to Westwoods. (Stipulation, dated January
16, 2007, Stip. No. 24.) The Nation will not alienate
any portion of Westwoods. (Tr. 2935, 2964.) The NYDOT will
not grant a permit to any person seeking to build
an access ramp from a limited access highway, such as
Rt. 27, to private property unless the ramp connects to
a publicly owned roadway before the private property. (S245; D361,
at 75-76.) There are no public roads on the middle
Westwoods parcel south of Newtown Road and north of Sunrise
Highway. (D266; D274.)
6.
ADVERSE AIR QUALITY IMPACTS RELATED TO TRAFFIC
*53
Mr. Grover of GPI prepared a Mobile Source Air Quality
Report, in connection with development of a casino at Westwoods,
which the Court found credible and reliable. (S200.) The purpose
of the air quality assessment was to determine the impact
of traffic generated by the development of a casino at
Westwoods on air quality emissions in the area surrounding the
property. (S200, at 4.) Highway traffic is a significant source
of emissions of several air contaminants. (S200, at 4; Tr.1933.)
The pollutants emitted by automobiles and trucks consist of CO,
VOCs, NOx, and particulate matter (“PM”),
all of which are detrimental to human health when they
or chemicals created by them are inhaled. (S200, at 4;
Tr.1934-36.)
CO,
VOC, and NOx emissions are all higher in the build
condition than in the no-build condition. (S200, at 8; Tr.1941-42.)
Persons residing in and around the main travel routes to
and from Westwoods would be exposed to greater amounts of
CO, and to greater amounts of ozone arising from the
reactions of VOCs and NOx in the atmosphere, should a
casino be built at Westwoods. (S200, at 8; Tr.2006-07.) PM
emissions are higher for a casino complex at Westwoods in
2010, both with and without ramp access from Route 27,
for both PM2.5 and PM10 in an amount over 40%
greater than the levels expected should no casino be built.
(S200, at 8.)
7.
DISRUPTIVE TRAFFIC NOISE
GPI
performed a study of the expected noise levels from traffic
that would arise from the operation of a casino complex
at Westwoods, which the Court found credible and reliable. (S200;
S230 .) The noise predictions made by GPI only consider
typical vehicle noise, and do not account for the associated
noise often encountered in a recreational/resort setting that a casino
at Westwoods will likely create, such as loud stereos, beeping
horns, etc. (S200, at 15; Tr.1947.) GPI assigned 10 receptor
locations for noise monitoring purposes on the basis of the
proximity to the project and adjacent roads, and representation of
the residential land use primarily found in the project area.
(S200, at 10, and Figure 3; S230, at Figure 1;
Tr.1944.) GPI conducted monitoring using equipment certified by the manufacturer
to meet or exceed American National Standards Institute standards for
Type 1, 2 and 2A sound level meters, and which
was calibrated at the beginning and end of each measurement
session. (S200, at 13.)
According
to Federal Highway Administration standards, traffic noise impacts from a
highway improvement project occur when the predicted traffic noise levels
approach or increase the noise abatement criteria, or when predicted
future traffic noise levels substantially exceed the no-build levels. (S200,
at 15; Tr.1944-45 .) The New York State Noise Analysis
Policy has established that impacts occur when the predicted future
traffic noise levels approach one decibel or exceed the noise
abatement criteria or when the predicted future traffic noise levels
substantially increase the no-build levels by six or more decibels.
(S200, at 15; Tr.1944-45.)
*54
The predicted noise levels with an operating casino complex at
Westwoods in 2010 exceed the noise levels expected in 2010
if no casino complex is built by more than 6
decibels at 6 of the 10 receptors under a Westwoods
casino with no Route 27 access, affecting all of the
residential development on Squiretown Road and Newtown Road north of
Route 27, which includes approximately 75 single-family homes. (S200, at
14 (Table 18) and 16; Tr.1945-46.)
V.
CONCLUSIONS OF LAW
There
are several legal questions that the Court will address: (A)
whether plaintiffs have demonstrated, as alleged in the causes of
actions in the complaints, that the commencement of construction on
Westwoods and the proposed gaming facility violates New York gaming
laws and environmental laws, and the Town Code; (B) whether
the Shinnecock Indian Nation's aboriginal title to Westwoods has been
extinguished; (C) whether, even if the Nation holds unextinguished aboriginal
title to Westwoods, plaintiffs have demonstrated that they are entitled
to prevent the construction of a gaming facility under the
Supreme Court decision in Sherrill
because of the disruptive impact that will result from the
Nation's assertion of sovereignty over Westwoods; (D) whether defendants can
operate a gaming facility at Westwoods in violation of New
York gaming laws when such activity is not within the
confines of the federal legal framework embodied in IGRA; (E)
whether defendants can assert sovereign immunity as a defense; and
(F) whether the requirements for permanent injunctive relief have been
satisfied. The Court will address each of these issues in
turn.
A.
THE CAUSES OF ACTION
As
set forth below, the Court concludes that plaintiffs have demonstrated
that the defendants' actions and threatened actions with respect to
the construction and operation of a casino at Westwoods are
not in compliance with applicable New York anti-gaming laws
and environmental laws, as well as the Town Code.
(1)
NEW YORK ANTI-GAMING LAWS
With
respect to the State's First Cause of Action, the State
established that the Nation's planned gaming facility is not in
compliance with New York anti-gaming laws. Although the New York
State Constitution generally forbids gaming, it does allow certain forms
of gaming, including a state lottery for education, pari-mutuel betting
on horse racing, and limited charitable gaming in the form
of bingo and “games
of chance”
conducted by religious, charitable, and certain non-profit groups. SeeN.Y.
Const. art. I, §
9. Moreover, only authorized organizations that are licensed by the
Board may conduct bingo and “games
of chance.”
SeeN.Y.
Gen. Mun. Law §
187. The General Municipal Law defines an “authorized
organization”
to “mean
and include bona fide educational, fraternal or service organization or
bona fide organization of veterans or volunteer firemen....”N.Y.
Gen. Mun. Law §
186(4). Furthermore, the conduct of these games is strictly regulated
by New York law and regulations. SeeN.Y.
Gen. Mun. Law §§
188-a, 475; Exec. Law §
431. Unless the gaming activity is conducted pursuant to these
exceptions in the New York Constitution and New York laws,
gaming for profit in New York violates New York's criminal
laws and is against public policy.FN42SeeGen.
Mun. Law §§
189(14), 495-a; Penal Law §
225.30. Defendants have not obtained any authorization under New York
law to conduct gaming at Westwoods.
FN42.
In 2001, the New York Legislature repealed in part the
per
se
exception for slot machines. The use of slot machines, however,
remains prohibited unless it is approved by the Board as
an authorized “game
of chance”
or it is included in a State-Tribal Compact executed in
accordance with federal law. SeeN.Y.
Gen. Mun. Law §
186(3); N.Y. Penal Law §
225.30; 9 N.Y.C.R.R. §
5620.1.
(2)
NEW YORK ENVIRONMENTAL LAWS
*55
With respect to the State's other causes of action, the
Court concludes that the evidence at trial demonstrated that the
Nation's actions and threatened actions with respect to the proposed
gaming facility at Westwoods are not in compliance with New
York environmental laws that are the subject of those causes
of action. First, the Nation cannot operate the proposed casino
without construction and operation of a sewage treatment facility that
will, at least from time to time, discharge wastewater to
surface or ground waters of the State from a pipe
or other outfall. Accordingly, under New York law, the Nation
is required to obtain a SPDES permit for the discharge
of sanitary wastewater to either surface or ground waters of
New York. See6
N.Y.C.R.R. §
750-1.5(a)(4) (stating SPDES permit needed for discharges in excess of
1,000 gallons/day); 6 N.Y.C.R.R. §
750-1.14(c) (stating SPDES permit must be obtained before construction of
wastewater treatment plant begins).
Similarly,
under New York law, the Nation is also required to
file for coverage under the SPDES General Permit for Stormwater
Discharges for Construction Activities pursuant to N.Y. Envtl. Conserv. Law
(“ECL”)
§
17-0807(4) and 6 N.Y.C.R.R. §
750-1.21(b) (2), by submitting a NOI certifying completion of a
SWPPP that meets all of the DEC's technical requirements for
erosion and sediment control. Thus, the Nation would be required
to implement the SWPPP pursuant to the general permit and
the NOI is required to be filed before the start
of any construction activities. The Nation has not submitted an
NOI to the DEC.
Furthermore,
the issuance of the SPDES permit is also subject to
an environmental review under SEQRA, which requires that an environmental
review of an agency's proposed action occur before the action
is undertaken. See,
e.g., Tri-City
Taxpayers Ass'n v. Town Bd. of Queensbury,
55 N.Y.2d 41, 45-46 (1982). In this case, the action
would be the construction of a water treatment facility. Thus,
the issuance of necessary governmental permits for the proposed casino
are agency actions subject to SEQRA, and no permits can
issue before the required environmental review has been completed. ECL
§
8-0109(2). As stipulated by the parties, “the
development of a gaming facility at the Westwoods Parcel would
likely to be a Type I action, a type of
activity identified in 6 N.Y .C.R.R. Part 617.4 as being
likely to require the preparation of an EIS; if the
lead agency determines that the proposed action may result in
at least one potential significant adverse impact, it would issue
a positive declaration to that effect in accordance with 6
N.Y.C.R.R. Part 617.7.”(Stipulation,
dated January 16, 2007, at ¶
25.) Given the potential environmental impacts, the preparation of an
EIS to identify, and then propose mitigation of, environmental impacts
would be necessary before construction could commence on a casino
in accordance with state law. See
Chinese
Staff & Workers Ass'n. v. City of N.Y.,
68 N.Y.2d 359, 366 n. 7 (1986) (holding that unlike
NEPA, SEQRA requires EIS whenever there may be significant effect
on environment). Violations of New York's environmental laws are subject
to suit for injunctive relief pursuant to ECL §
71-1931. See
alsoECL
§
71-1929 (holding that violators of ECL article 15, titles 1
through 11, “may
be enjoined from continuing such violation”).FN43
FN43.
The State's Complaint also includes a cause of action asserting
that defendants could not build a casino with a new
well whose pumping capacity exceeded forty-five gallons per minute and
thus was proposing to build a casino which would draw
ground water in violation of ECL §
15-1527. ECL §
15-1527 imposes permit requirements whenever any person proposes to build
such a well. SeeECL
§
15-1527(2). The State's environmental expert concluded that on-site wells could
not supply a sufficient amount of potable water. (S125, at
68.) In any event, if the Nation should propose substituting
such wells for water supplied by the HBWD, the Nation
then would be in violation of that provision of state
law.
*56
In the instant case, the Nation has stipulated that it
has not even applied for any environmental permits from New
York and has not commenced any aspect of the required
SEQRA review. (Stip. No. 52; Stipulation, dated January 16, 2007,
at ¶
1.) Accordingly, the Nation's actions concerning the construction of the
casino, and their threatened actions, are in violation of New
York's environmental laws.
(3)
TOWN CODE
With
respect to the Town's causes of action, the Court concludes
that the Town has established that the Nation's actions and
threatened actions, in connection with the development activities and planned
use of Westwoods for a casino facility, violate the provisions
of the Town Code set forth in the causes of
action.
Section
330-184 (subdivision I) of the Southampton Town Zoning Law provides
that “no
regrading, clearing, tree removal or any other work in preparation
of future use of a site may take place until
site plan approval or written permission has been received from
the Planning Board.”(T267.)
None of the site preparation activities in which the Nation
engaged on or about July 12, 2003 was preceded by
any application or request for, or issuance of, site plan
approval or written permission of the Southampton Planning Board, as
required by Section 330-184(1) of the Town Code. Thus, these
July 12 activities were not in compliance with Section 330-184
of the Town Code.
Similarly,
under section 325-6, subdivision A of the Town Code, a
permit must be obtained to develop land within 200 feet
of wetlands. Such development includes the clearing of natural vegetation,
grading, excavation, placement of fill, building, structural changes, the installation
of any man-made structure, planting, and landscape activities. (Tr. 277-28.)
The northern parcel of Westwoods contains or lies adjacent to
wetlands, as the Great Peconic Bay system is regulated as
wetlands under Chapter 325 of the Southampton Town Code. Thus,
any development of Westwoods within 200 feet of the wetlands
on its northern boundary also would implicate Chapter 325 of
the Town Code.
In
addition to the violations of the specific Town Code sections
referenced in the Complaint, the Town also established at trial
defendants' violations of Town Code §§
330-6 and 330-10, regarding zoning, as well as Town Code
§
123-9A. First, the operation of a gaming casino is not
a permitted use at Westwoods, which is zoned R60, according
to Section 330-6 of the Town Zoning Law, and the
related “Residence
Districts Table of Use Regulations,”
set forth in Town Zoning Law Section 330-10. (T267.) As
a R-60 designated parcel, Westwoods is limited to single-family residential
use. (Tr. 114, 245; T267.) A gaming casino is not
a permitted use in an R-60 zone, or in any
other residential zone. In addition, the operation of a casino
has not been identified as a “permitted”
or “special
exception”
use within any “County
Residence”
or “Residence”
zoning districts in the Table of Use Regulations appearing at
§
330-10 of the Town of Southampton Zoning Law. (T267.) In
fact, a gaming casino is not a permitted use anywhere
in Southampton, and is not otherwise authorized in any respect
by the Town. (Tr. 245-46; T267.) Thus, the Town has
demonstrated that the Nation's proposed casino development violates the Town's
zoning law as set forth in Section 330-6 and the
related “Residence
Districts Table of Use Regulations”
as set forth in Section 330-10. (Stip. No. 48.)
*57
To the extent that defendants suggest that Westwoods was “unzoned”
because the current Town Zoning Map references Westwoods as “Ind-Res,”
the Court rejects that argument. Despite the lack of a
designated zoning classification for Westwoods on the current version of
the Town zoning map, the Town has classified the Westwoods
parcel as residential property in 1957, 1972, 1984, and 1986,
and has never taken any of the steps required to
effectuate a change in that classification since 1986. Thus, there
is no question, from a legal standpoint, that the Town
has zoned Westwoods as residential and any references on the
zoning map have no legal implication. See,
e.g., Paradis
v. Town of Schroeppel,
735 N.Y.S.2d 278, 278 (N.Y.App.Div.2001) (invalidating town board resolution purporting
to amend town zoning code provision); accord
Noghrey
v. Town of Brookhaven,
625 N.Y.S.2d 268, 268 (N.Y.App.Div.1995); Naftal
Assocs. v. Town of Brookhaven,
633 N.Y.S.2d 798, 798 (N.Y.App.Div.1995); Rockland
Props. Corp. v. Town of Brookhaven,
612 N.Y.S.2d 673, 673 (N.Y.App.Div.1994).
The
Court also rejects any argument by the defendants that the
Town should be estopped from enforcing any zoning regulation because
of its failure to place the designation on the current
zoning map or because of a failure to enforce it.
As a threshold matter, the Second Circuit has held that
“principles
of laches or estoppel do not bar a municipality from
enforcing ordinances that have been allowed to lie fallow.”LaTrieste
Rest. & Cabaret, Inc. v. Village of Port Chester,
40 F.3d 587, 590 (2d Cir.1994); see
also Parkview
Assocs. v. City of New York,
71 N.Y.2d 274, 282 (1988) (holding that “
‘[e]stoppel
is not available against a local government unit for the
purpose of ratifying an administrative error,’
“
and such an administrative error does not confer rights contrary
to the zoning laws) (quoting Morley
v. Arricale,
66 N.Y .2d 665, 667 (1985)). In any event, even
if applicable, defendants' estoppel argument also fails on the merits.
First, Shinnecock Trustees Gumbs and Eleazer acknowledged they were aware
that Westwoods was assigned a zoning classification by the Town.
(Tr. 2943; S249, at 12, 98-99.) In fact, the Nation
made an unsuccessful request to remove such classification in 1985.
Thus, the Nation has been aware of the residential classification.
Second, any argument that the Town should be estopped because
it failed to enforce the zoning law is also factually
flawed because, prior to the Nation's July 2003 activities, Westwoods
had essentially remained in its natural state as a woodlot
and, therefore, there was no reason for the Town to
seek to enforce any provision of the Town Code or
zoning laws prior to that time.
In
addition to the zoning issues, the Town Code requires a
Town-issued building permit to be issued in order to construct
a commercial structure within Southampton. See
Town Code 123-9. There is no question that the proposed
construction of the casino facility at Westwoods would require the
issuance of a building permit by the Town prior to
the commencement of any construction or site preparation activities. Here,
before commencing its site preparation activities, the Nation did not
obtain a building permit. Thus, the activity at Westwoods violates
Section 123-9 of the Town Code.
*58
Defendants essentially concede that they have not complied with these
New York and Town laws and have not obtained the
various approvals and permits that would be required to construct
and operate a gaming facility in New York and Southampton.
The Nation's position is that it is immune from these
laws and legal requirements because Westwoods is tribal land over
which the Nation holds unextinguished aboriginal title and it is
to this legal issue that the Court now turns.
B.
ISSUE OF EXTINGUISHMENT OF ABORIGINAL TITLE
Defendants
argue that the construction and operation of a casino at
Westwoods is immune from New York and local laws and
regulations because the Nation holds unextinguished aboriginal title to Westwoods.
In particular, at paragraph 16 of their Answer to the
Town's Complaint, defendants
Admit
that none of Defendants has applied for or received any
permit or approval from the Town of Southampton and aver
that the Town of Southampton has no jurisdiction over the
Westwoods Parcel and has no power or right to enforce
any part of the Code of the Town of Southampton
or any other local law or regulation of the Town
of Southampton within Shinnecock tribal lands or, specifically, within the
Westwoods Parcel.
(Defs.
Ans. to Town Complaint, at ¶
16; see
also
Defs. Ans. to State Complaint, at ¶¶
54, 59.) Similarly, defendants concede that the Gaming Authority “has
not submitted any document to the DEC and aver that
this agency of the State of New York has no
right or power to require any of the Defendants to
obtain any license or permit for activities on Shinnecock tribal
lands or to regulate or interfere with any activities on
Shinnecock tribal lands .”(Defs.
Ans. to State Complaint, at 158.)
Defendants'
position on this issue is contained in the Third Affirmative
Defense to the Town's claims:
Under
the Constitution and laws of the United States and federal
common law, neither the Town of Southampton or any other
municipal corporation in the State of New York, including any
county in the State of New York, has any right
or power (a) to require the Shinnecock Indian Nation or
any of its instrumentalities or affiliates to obtain a license,
permit or any other form of permission prior to conducting
any of
the activities sought to be enjoined by the Complaint; or
(b) to interfere with the right of the Shinnecock Indian
Nation or any of its instrumentalities or affiliates from engaging
in any of those activities or, in particular, from engaging
in gaming or gambling activities on Shinnecock tribal lands.
(Defs.
Ans. to Town Complaint, at 8, 9.) The virtually identical
Third Affirmative Defense is contained in the Defendants' Answer to
the State Complaint. (See
Defs. Ans. to State Complaint, at 13.)
As
analyzed in detail below, the Court concludes that the evidence
at trial established in a clear and convincing manner that
the Nation's aboriginal title to the Westwoods land was extinguished
in the 17th century and, thus, defendants' defense to the
current and threatened violations of New York and local laws
in construction and operation of a casino at Westwoods fails
on the merits.
(1)
LEGAL FRAMEWORK FOR ANALYZING ABORIGINAL TITLE ISSUE
*59
“Aboriginal
title refers to the Indians' exclusive right to use and
occupy lands they have inhabited ‘from
time immemorial,’
but that have subsequently become ‘discovered’
by European settlers.”Seneca
Nation of Indians v. New York,
382 F.3d 245, 249 n. 4 (2d Cir.2004) (quoting
County
of Oneida v. Oneida Indian Nation of N.Y.,
470 U.S. 226, 233-34 (1985) (“Oneida
I”
)), cert.
denied,126
S.Ct. 2351 (2006). In Oneida
I,
the Supreme Court explained how aboriginal Indian title derived from
the doctrine of discovery, which provided that “discovering
nations held fee title to these lands, subject to the
Indians' right of occupancy and use.”Oneida
I,
470 U.S. at 234;see
also Tee-Hit-Ton
Indians v. United States,
348 U.S. 272, 279 (1955) (“After
conquest [Indians] were permitted to occupy portions of territory over
which they had previously exercised sovereignty.”)
(internal quotation marks omitted).
This
“[a]boriginal
title, however, was not inviolable.”Seneca,
382 F.3d at 249 n. 4. Specifically, “Indians
were secure in their possession of aboriginal land until their
aboriginal title was ‘extinguished’
by the sovereign discoverer.”Id.;
see also Oneida
I,
470 U.S. at 234 (“[N]o
one could purchase Indian land or otherwise terminate aboriginal title
without the consent of the sovereign.”).
As the Supreme Court has long recognized, the sovereign “possessed
exclusive power to extinguish the right of occupancy at will.”United
States v. Alcea Band of Tillamooks,
329 U.S. 40, 46 (1946); see
also Johnson
v. M'Intosh,
8 Wheat. 543, 21 U.S. 543, 588 (1823) (“All
our institutions recognise the absolute title of the crown, subject
only to the Indian right of occupancy, and recognise the
absolute title of the crown to extinguish that right.”).“Extinguishment
could occur through a taking by war or physical dispossession,
or by contract or treaty ...
and did not give rise to an obligation to pay
just compensation under the Fifth Amendment.”Seneca,
382 F.3d at 249 n. 4 (citations omitted); see
also United
States v. Santa Fe Pac R.R. Co.,
314 U.S. 339, 347 (1941) (holding that aboriginal title can
be extinguished “by
treaty, by the sword, by purchase, by the exercise of
complete dominion adverse to the right of occupancy, or otherwise”)
(citation omitted).
The
Second Circuit also has confirmed that, during the colonial era,
Great Britain held the right of extinguishment. See
Oneida Indian Nation v. New York,
860 F.2d 1145, 1150 (2d Cir.1988) (“Oneida
II”
) (“The
right to extinguish Indian title, sometimes called a right of
extinguishment, was held by the sovereign-Great Britain in the period
prior to the American Revolution.”);
see
also Seneca
Nation of Indians v. New York,
206 F.Supp.2d 448, 505-06 (W.D.N.Y.2002) (“In
the period prior to the American Revolution, Great Britain, recognized
as the discovering nation and sovereign after defeating the French,
held both the right of extinguishment and the right of
preemption of Indian lands located in the colonies. Thus, Britain
had the exclusive authority to extinguish Indian title, and its
underlying fee title or right of preemption was good against
all other discovering nations.”),
aff'd,382
F.3d 245 (2d Cir.2004), cert.
denied,126
S.Ct. 2351 (2006).
*60
Although the sovereign clearly possesses a right of extinguishment, aboriginal
title is not easily extinguished. In particular, “[i]t
is well-settled that an intention to authorize the extinguishment of
Indian title must be ‘plain
and unambiguous,’
either ‘expressed
on the face of the [instrument] or ...
clear from surrounding circumstances.’
“
Seneca,
382 F.3d at 260 (quoting Mountain
States Tel. & Tel. Co. v. Pueblo of Santa Ana,
472 U.S. 237, 276 (1985) (other citations omitted)); see
also Oneida
I,
470 U.S. at 248 (“[C]ongressional
intent to extinguish Indian Title must be ‘plain
and unambiguous,’
...
and will not be ‘lightly
implied.’
”)
(quoting
Santa
Fe,
314 U.S. at 346, 354)); Delaware
Nation v. Pennsylvania,
446 F.3d 410, 417 (3d Cir.2006) (“For
extinguishment to occur, the sovereign must intend to revoke the
Indians' occupancy rights....
The intent to extinguish aboriginal title must be ‘plain
and unambiguous' based on either the face of the instrument
or surrounding circumstances....
Extinguishment cannot be lightly implied.”).
The foundational underpinning of this standard is the “policy
of the federal government from the beginning to respect the
Indian right of occupancy.”
Cramer
v. United States,
261 U.S. 219, 227 (1923). Thus, given this strong policy,
any ambiguity on the issue of whether aboriginal title has
been extinguished must be resolved in favor of the Indian
tribe. See
Santa
Fe,
314 U.S. at 354.
Moreover,
in order to ensure that the extinguishment was plain and
unambiguous, the Court may also consider events subsequent to any
sovereign determinations that may be relevant on that issue. For
example, in Absentee
Shawnee Tribe of Indians of Oklahoma v. Kansas,
the Tenth Circuit examined events subsequent to the treaty at
issue to determine the intent and understanding of the Shawnee
tribe:
[T]he
historical record indicates that the Shawnees understood that the Treaty
entitled the Rev. Johnson to the property under the Treaty,
and that they intended him to have it.
This
letter [from Chiefs and Council of the Shawnee Tribe of
Indians] supports the conclusion that the Shawnees were fully cognizant
of the effect of the 1854 Treaty in divesting their
rights in the mission property. Even after the mission had
discontinued providing educational services, the Shawnees clearly did not contemplate
that they had any continued claim in the property. This
is a case in which we cannot “ignore
plain language that, viewed in historical context and given a
‘fair
appraisal,’
clearly runs counter to a tribe's later claims.”
Id.
at 1421-22 (quoting Klamath
Indian Tribe,
473 U.S. 753, 754 (1985) and Wash.
State Commercial Passenger Fishing Vessel Ass'n,
443 U.S. 658, 675 (1979); see
also Cree
v. Waterbury,
78 F.3d 1400, 1405 (9th Cir.1996) (remanding to district court
to examine, among other things, the circumstances surrounding 1855 Treaty
between the United States and the Yakima Tribe, and the
post-Treaty conduct of parties in order to interpret the scope
of rights granted by the Treaty); Shawnee
Tribe v. United States,
423 F.3d 1204, 1220 (10th Cir.2005) (holding that courts may
not ignore plain language that “
‘runs
counter to a tribe's later claims' ”);
Cook
v. United States,
32 Fed. Cl. 170, 174 (Fed.Cl.1994) (same); United
States v. Minnesota,
466 F.Supp. 1382, 1385 (D.Minn.1979) (“To
determine the intent of Congress and understanding of the Indians,
the court must analyze the wording of the treaties, agreements,
and enactments, the prior history, the surrounding circumstances, and the
subsequent construction given those documents by the parties.”).
*61
Finally, once extinguishment of aboriginal title occurs, it cannot be
revived. See,
e.g., Delaware
Nation v. Commonwealth of Pennsylvania,
No. 04-CV-166, 2004 WL 2755545, at *10 (E.D.Pa. Nov. 30,
2004) (“[W]e
find that the original right to possession, ‘once
having been extinguished, could not be revived, even if title
were thereafter acquired by those who originally possessed that right.’”)
(quoting Tuscarora
Nation of Indians v. Power Auth. of N.Y.,
164 F.Supp. 107, 113 (W.D.N.Y.1958)), aff'd,446
F.3d 410, 417 (3d Cir.2006); see
also Cass
County v. Leech Lake Band of Chippewa Indians,
524 U.S. 103, 191 (1998) (“When
Congress makes Indian reservation land freely alienable, it manifests an
unmistakably clear intent to render such land subject to state
and local taxation. The repurchase of such land by an
Indian tribe does not cause the land to re-assume tax-exempt
status.”).
(2)
COLLATERAL ESTOPPEL ISSUE
051
Extra cent-Y found within cent-Y markup.
As
a threshold matter, the Town made a motion in
limine
to bar defendants from introducing any evidence, including any expert
testimony, or making any argument at trial that the Shinnecock
Tribe currently holds unextinguished aboriginal title to Westwoods. In particular,
the Town argues that the Shinnecock are collaterally estopped from
claiming that they have unextinguished aboriginal title to Westwoods because
the Shinnecock Tribe participated as a defendant in King
v. Shinnecock Tribe of Indians,
221 N.Y.S.2d 980 (N.Y.Sup.Ct.1961),FN44
in which the New York State Supreme Court held that
the Shinnecocks' aboriginal rights to certain lands, including Westwoods, was
extinguished in the 17th century (the “King
Litigation”).
Defendants argue that this motion is essentially a motion for
reconsideration of Judge Piatt's denial of summary judgment under the
guise of an evidentiary motion in
limine.
FN45Specifically,
defendants contend that, although Judge Platt did not explicitly address
this issue in his November 7 Memorandum and Opinion, the
Town specifically moved for summary judgment in part on the
ground of collateral estoppel and, by denying the motion, Judge
Platt implicitly must have rejected this argument. As set forth
below, whether viewed as a motion for reconsideration or a
motion considered de
novo
by the Court, the Court finds the collateral estoppel doctrine
to be inapplicable under the peculiar circumstances of the instant
case. More specifically, since the issue was addressed in the
prior lawsuit in the form of a stipulation by a
New York State attorney acting on behalf of the Shinnecock
Nation, the Town cannot rely on the collateral estoppel doctrine
to preclude litigation of that issue in this lawsuit.
FN44.
This lawsuit was authorized by an act of the New
York State Legislature, Chapter 379, New York Laws of 1960,
which expressly subjected the Shinnecock Tribe to the lawsuit commenced
by King. Id.
at 982.
Motions for reconsideration may be filed pursuant to Federal Rule
of Civil Procedure 59(e). The decision to grant or deny
a motion for reconsideration falls squarely within the discretion of
the district court. See
Devlin
v. Transp. Commc'ns Int'l Union,
175 F.3d 121, 132 (2d Cir.1999).“The
standard for granting such a motion is strict, and reconsideration
will generally be denied unless the moving party can point
to controlling decisions or data that the court overlooked ...
that might reasonably be expected to alter the conclusion reached
by the court.”Shrader
v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir.1995) (internal citations omitted). Similarly,
Local Civil Rule 6.3 provides that a party moving for
reconsideration must “set[
] forth concisely the matters or controlling decisions which [the
party] believes the court has overlooked.”In
any event, “reconsideration
of a previous order is an extraordinary remedy to be
employed sparingly in the interests of finality and conservation of
scarce judicial resources.”In
re Health Mgmt. Sys. Inc. Sec. Litig.,
113 F.Supp.2d 613, 614 (S .D.N.Y.2000) (citation and quotation marks
omitted); see
also Medoy
v. Warnaco Employees' Long Term Disability Ins. Plan,
No. 97 Civ. 6612(SJ), 2006 U.S. Dist. LEXIS 7635, at
*4 (E.D.N.Y. Feb. 15, 2006) (“The
standard ...
is strict in order to dissuade repetitive arguments on issues
that have already been considered fully by the Court.”).
“Under
New York law, collateral estoppel bars relitigation of an issue
when (1) the identical issue necessarily was decided in the
prior action and is decisive of the present action, and
(2) the party to be precluded from relitigating the issue
had a full and fair opportunity to litigate the issue
in the prior action.”FN46In
re Hyman,
No. 05-7026-BK, 2007 WL 2492789, at *3 (2d Cir. Sept.
6, 2007) (citations omitted); accord
Hoblock
v. Albany County Bd. of Elections,
422 F.3d 77, 94 (2d Cir.2005).“The
party seeking the benefit of collateral estoppel bears the burden
of proving the identity of the issues, while the party
challenging its application bears the burden of showing that he
or she did not have a full and fair opportunity
to adjudicate the claims involving those issues.”Khandhar
v. Elfenbein,
943 F.2d 244, 247 (2d Cir.1991) (citing Kaufman
v. Eli Lilly & Co.,
65 N.Y.2d 449, 455-56 (1985)).
FN46.
The Second Circuit has stated that, where as here a
party is seeking to enforce a New York judgment, New
York law is applied. See
Marvel
Characters, Inc. v. Simon,
310 F.3d 280, 286 (2d Cir.2002) (“We
apply federal law in determining the preclusive effect of a
federal judgment and New York law in determining the preclusive
effect of a New York State court judgment.”)
(internal citations omitted). In any event, although federal and state
law differ in certain respects on some collateral estoppel issues,
see Indus.
Risk Insurers v. Port Auth. of N.Y. and N.J.,
493 F.3d 283, 288 (2d Cir.2007) (noting, as to collateral
estoppel under New York and federal law, that “these
two bodies of law do appear to diverge in some
particulars”),
the result here would be the same under either standard.
*62
Thus, the Court must look to the circumstances surrounding the
King
litigation to determine if these requirements were met. In King,
a claim was brought by Douglas King against the Shinnecock
Tribe to have the court resolve conflicting claims to land
located within Southampton to the west of Canoe Place. King,
221 N.Y.S.2d at 981 (noting that the property at issue
was located “about
one quarter mile south of Montauk Highway at Hampton Bays
in the Town of Southampton”
and is “bounded
...
on the east by Shinnecock Bay”).
King contended that he and his family members had actually
possessed the land for at least 100 years and, thus,
he had title to land based upon adverse possession.Id.
at 982.In the lawsuit, the Attorney General of New York,
by an Assistant Attorney General, appeared for both the State
and the Nation. As part of the litigation, the Assistant
Attorney General conceded or stipulated, that “as
of the year 1738, record title to the premises was
in the white proprietors of the Town of Southampton and
not in the Shinnecock Indians, who had divested themselves of
any recorded interest by treaty in the years 1662 and
1666.”Id.
at 982.FN47Therefore,
it was conceded that there was no aboriginal title to
the lands; instead, the court noted that “[i]t
is the contention of the defense that at some time
prior to 1810 the premises became part of the reservation
and property of the Shinnecock Indians.”Id.
at 983.The court, however, rejected that argument due to a
lack of evidence.FN48Id.
at 986-87.In particular, the court explained:
FN47.
The concession was actually made in a prior similar action
in 1953, see
King
v. Warner,
137 N.Y.S.2d 568, 569 (N.Y.Sup.Ct.1953), but it was agreed that
the 1961 King
action would be tried based upon the record of the
trial of the 1953 action. King,
221 N.Y.S.2d at 981. Thus, this stipulation in the 1953
action was applied to the 1961 King
action.
FN48.
In reaching this decision, the court did review “the
genesis of title to lands in the Town of Southampton”
and specifically referenced the analysis in Trustees
of the Freeholders and Commonalty of Southampton v. Mecox Bay
Oyster Co.,
116 N.Y. 1, 8 (1889).See
King,
221 N.Y.S.2d at 985-86 (citing Mecox
Bay
). In Mecox
Bay,
the Court of Appeals referred to the Andros and Dongan
patents and found that, prior to the Andros patent, “all
the Indian deeds had been delivered, and the rights of
the Indians extinguished.”Specifically,
the Court of Appeals reviewed the land grants to the
Town of Southampton, including the Andros and Dongan patents:
The
first patent of the town was in 1676 by Governor
Andros....
There can be no doubt that under this patent the
title to all the lands vested in the corporate body
thereby created. The grant was from the sovereign, who gave
the grantees capacity to take and hold in a corporate
character ....
Under
this grant, therefore, title vested in the town. The Dongan
charter was granted 10 years later. It can hardly be
presumed that it could have been intended by that deed
to have changed the title to the land. Prior to
the date of the Andros charter, all the Indian deeds
had been delivered, and the rights of the Indians extinguished.
Under that charter, the title had vested absolutely in the
town.
116.
N.Y. at 8. As discussed infra,
it is undisputed that the Andros and Dongan Patents covered
all lands within the Town of Southampton, including Westwoods. (Stip.
No. 77.)
There
being no persuasive proof that the Shinnecock Indians have ever
acquired any tribal interest in the premises in question since
their right of occupancy was extinguished by the sovereign, I
conclude that the plaintiff has clearly established his title thereto
by adverse possession.
221
N.Y.S.2d at 987.FN49
FN49.
The Shinnecock Nation took an appeal from the decision by
the New York Supreme Court, but later abandoned that appeal.
See
King
v. Shinnecock Tribe of Indians,
17 A.D.2d 820 (N.Y.App.Div.1962) (dismissing appeal).
Although
the Town argues that the defendants are collaterally estopped from
denying the extinguishment of their aboriginal rights in Westwoods because
the court in King
determined that the Andros and Dongan Patents extinguished such aboriginal
title, this Court concludes that the doctrine of collateral estoppel
should not be applied to this lawsuit on that issue
because of the circumstances under which this issue was litigated
in the New York court. In particular, the Court notes
that the Town is seeking estoppel based upon a stipulation
made on behalf of the Nation by the State of
New York-the Town's current co-plaintiff and the Nation's current adversary
in this lawsuit-while, in King,
New York was representing the Nation in a trust capacity.
The Second Circuit has recognized that “[m]ost
courts have held that a fact established in prior litigation
by stipulation, rather than by judicial resolution, has not been
‘actually
litigated.’
“
Uzdavines
v. Weeks Marine, Inc.,
418 F.3d 138, 146 (2d Cir.2005) (citing cases); see
also North
Shore-Long Island Jewish Health Sys., Inc. v. Aetna U.S. Healthcare,
27 A.D.3d 439, 440-41 (N.Y.App.Div.2006) (“An
issue is not actually litigated if there has been ‘a
failure to place a matter in issue by proper pleading,
or even because of a stipulation’
”)
(quoting Kaufman,
65 N.Y.2d at 457 (emphasis omitted)); 1829
Caton Realty v. Caton BMT Assocs.,
225 A.D.2d 599, 599 (N.Y.App.Div.1996) (“[T]he
doctrine of collateral estoppel is not applicable since the issues
resolved by the stipulation of settlement were never actually litigated.”)
(citation omitted). The Second Circuit also has “specified
that where the parties intend a stipulation to be binding
in future litigation, issues to which the parties have stipulated
will be considered ‘actually
litigated’
for collateral estoppel purposes.”
Uzdavines,
418 F.3d at 146;see
also Red
Lake Band v. United States,
221 Ct. Cl. 325, 607 F.2d 930, 934 (1979) (“As
a general rule ...
an issue is not ‘actually
litigated’
for purposes of collateral estoppel unless the parties to the
stipulation manifest an intent to be bound in a subsequent
action.”);
see
generally United
States v. Int'l Bldg. Co.,
345 U.S. 502, 504 (1953) (finding no res
judicata
effect concerning tax deficiencies in previous years where deficiencies were
entered into in prior tax litigation by stipulation). Here, where
the stipulation regarding extinguishment of aboriginal title was entered into
on behalf of the Shinnecock Nation by the attorney for
New York, there is simply no indication from the record
that this was done with the intent to be bound
in subsequent actions. See
Red
Lake Band,
607 F.2d at 934 (holding that “an
intention to be ...
bound [in future litigations] should not be readily inferred”).
Thus, although the Nation was a party to that action,
the Court does not consider this issue to have been
“actually
litigated”
or litigated in a manner which provided a “full
and fair opportunity”
for litigation on the issue when it was based on
a stipulation by the State of New York's attorney acting
on behalf of the Shinnecock Nation in a lawsuit in
which New York was also a party.FN50See
In
re Hyman,
2007 WL 2492789, at *7 (declining to “mechanically
apply collateral estoppel”).
FN50.
To the extent plaintiffs also suggest that defendants should be
judicially estopped from challenging the colonial era transactions, that argument
is rejected for the same reasons discussed above. See
Uzdavines,
418 F.3d at 147 (denying judicial estoppel and noting “we
limit[ ] the doctrine of judicial estoppel to situations where
the risk of inconsistent results with its impact on judicial
integrity are certain”)
(citations and quotation marks omitted).
*63
In sum, the Court concludes, as Judge Platt implicitly did
in denying summary judgment, that the stipulation in the King
litigation should not bar the Nation from litigating the aboriginal
title issue in this lawsuit; rather, the Court has examined
this issue on the merits after a full trial in
which the Nation has been given a full and fair
opportunity to be heard and, as set forth below, finds
that aboriginal title to Westwoods has been extinguished.
(3)
BURDEN AND STANDARD OF PROOF
The
parties do not agree on the burden of proof or
the standard of proof on the issue of the extinguishment
of aboriginal title. Plaintiffs argue that, because defendants have asserted
“unextinguished
aboriginal title”
to Westwoods as an affirmative defense to plaintiffs' intention to
have this Court enjoin the development of a gaming facility
on that land, defendants have the burden of proving this
affirmative defense by a preponderance of the evidence. Defendants, however,
argue that plaintiffs have the burden of proving by clear
and convincing evidence that the Nation's aboriginal title to Westwoods
has been extinguished.
The
Court concludes that plaintiffs have the burden of proof to
establish by a preponderance of the evidence the plain and
unambiguous extinguishment of aboriginal title. The Court recognizes that the
Nation has asserted aboriginal title as an affirmative defense and
that it is well settled that defendants have the burden
of proof with respect to affirmative defenses, as well as
matters that are interposed in avoidance of plaintiffs' claim. See,
e.g., Fitzgerald
v. Henderson,
251 F.3d 345, 357 (2d Cir.2001) (holding that defendant bears
the burden of proof on an affirmative defense); United
States v. Sun Myung Moon,
718 F.2d 1210, 1224 (2d Cir.1983) (“If
defendant asserts an affirmative defense he bears the burden of
proof on it.”).
However, in the instant case, it is undisputed that the
Nation had aboriginal title at the time of initial discovery
in 1640. See
Shinnecock
Indian Nation,
400 F.Supp.2d at 489 (“Defendants
submitted a Fact Statement containing facts which are, for the
most part, undisputed and which show that the Shinnecock Indian
Nation ...
[w]as in possession of the lands in and around the
Town of Southampton when the first European settlers arrived in
1640....”).
Instead, the issue is whether that aboriginal title was extinguished.
The Court notes that a federal law enacted in 1834,
25 U.S.C. §
194, places the burden of proof on a “white
person”
in any case concerning Indians with respect to “the
right of property.”
Plaintiffs argue that the Supreme Court, however, has held that
this burden-shifting law does not apply to states because a
state is not a “person”
within the meaning of the statute, see
Wilson
v. Omaha Indian Tribe,
442 U.S. 653, 667 (1979), and that one court has
held that Section 194 does not apply to land within
the bounds of an original state, such as New York,
see
Cayuga
Indian Nation v. Pataki,
Nos. 80-CV-930, 80-CV-960, 1999 U.S. Dist. LEXIS 5228, at *13
(N.D.N.Y.1999). However, in Cayuga
Indian Nation of New York v. Village of Union Springs,
317 F.Supp.2d 128 (N.D.N.Y. Apr. 15, 2004), the court rejected
that argument:
*64
In City
of Sherrill,
the Supreme Court's language in Wilson
was relied upon to find that the burden of proof
rested with the municipality, and the Court of Appeals for
the Second Circuit affirmed, further substantiating that finding. See
[Sherrill], aff'd in part and rev'd in part,337
F.3d 139 (2d Cir.2003). Therefore, here, as in City
of Sherrill,
the burdens of proof and production rest with defendants, the
non-Indian parties questioning Indian title.
317
F.Supp.2d at 135. This Court agrees with the reasoning in
Cayuga
and concludes, where as here the plaintiffs are questioning Indian
title and arguing aboriginal title has been extinguished, the burden
lies with plaintiffs.
Although
the Nation further argues that the standard of proof is
elevated to “clear
and convincing”
evidence rather than the “preponderance”
standard, the Court disagrees. The Court recognizes, as noted supra,
that extinguishment is not implied and plaintiffs must prove plain
and unambiguous extinguishment of aboriginal title. That rule, however, does
not transform the underlying standard of proof to a “clear
and convincing”
standard. The only case cited by defendants that supports this
contention is a Court of Claims decision in which reference
was made to a “clear
and convincing evidence”
standard, Alabama-Coushatta
Tribe of Texas v. United States,
No. 3-83, 2000 WL 1013532, at *34 (Fed. Cl. June
19, 2000). However, the citations referenced in the decision do
not support such a standard. In fact, the majority opinion
in that case actually took exception to the dissenting judge's
view that a rule of statutory construction in favor of
Native Americans should be utilized in evaluating the findings of
an administrative hearing officer and noted that “[i]t
is a rule of statutory construction, to aid in determining
the meaning of legislation, not a rule for the weighing
of evidence and shifting of the normal burden of proof.”FN51Id.
at *7. Thus, this Court concludes that the burden of
proof is on plaintiffs here to prove by a preponderance
of the evidence that aboriginal title was plainly and unambiguously
extinguished.
FN51.
To the extent that defendants suggest that, in any situation
when something must be proven unambiguously, it necessarily must be
by clear and convincing evidence, the Court disagrees. See,
e.g., MacDraw,
Inc. v. CIT Group Equip. Fin., Inc.,
157 F.3d 956, 961 (2d Cir.1997) (“To
prevail on its claim of promissory estoppel, [plaintiff] had to
prove by a preponderance of the evidence ...
a clear and unambiguous promise made by defendant....”).
In
any event, this dispute between the parties regarding the burden
of proof and standard of proof is not critical to
the outcome of this lawsuit because the Court finds that,
even if the Court adopted defendants' position by placing the
burden of proof on plaintiffs and applied a “clear
and convincing evidence”
standard, plaintiffs still prevail in this lawsuit. In
other words, for the reasons discussed infra,
the Court finds that plaintiffs have demonstrated by clear and
convincing evidence that the Nation's aboriginal title to Westwoods has
been extinguished in a plain and unambiguous manner.
(4)
USE OF EXPERT TESTIMONY
There
were a series of motions and objections by the parties
opposing their adversary's use of expert testimony regarding historical facts
and circumstances pertaining to the issue of the extinguishment of
aboriginal title. The Court addressed these issues during the trial
utilizing the standards and procedures set forth in Daubert
v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), and its progeny. Specifically, when a
party wished to challenge an expert under Daubert,
the Court allowed the opportunity to question the witness on
the Daubert
issues prior to the Court ruling on the motion to
preclude the expert's testimony .FN52For
reasons that were set forth on the record, the Court
allowed all the proposed expert witnesses to testify because it
found the Daubert
criteria to be satisfied. Specifically, the Court concluded that the
purported defects in qualifications and methodology went to the weight
of the testimony, and not the admissibility, and that the
testimony did not improperly infringe on the Court's role to
determine questions of law. Although the legal and factual bases
for the Court's decision regarding these challenges to the experts
are contained in the record, the Court will highlight key
aspects of its rulings below.
FN52.
Some courts have concluded that, in the context of a
bench trial where there is not the same concern of
juror confusion or potential prejudice, the court has considerable discretion
in admitting the proffered testimony at the trial and then
deciding after the evidence is presented whether it deserves to
be credited by meeting the requirements of Daubert
and its progeny. See,
e .g., New
York v. Solvent Chem. Co., Inc.,
No. 83-CV-1401C, 2006 WL 2640647, at *2 (W.D.N.Y. Sept. 14,
2006) (collecting cases). Although the Court could have utilized that
approach in this bench trial, the Court decided to follow
the standard Daubert
procedure and allowed the parties to conduct a preliminary examination
of the witness to address any Daubert
challenges first and then have the Court rule on those
challenges before the witness was permitted to give his or
her entire testimony.
(A)
THE DAUBERT
STANDARD
*65
The admissibility of expert testimony is analyzed under Rule 702
of the Federal Rules of Evidence, which provides:
If
scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably
to the facts of the case.
Fed.R.Evid.
702. Under Daubert,
the district court must perform a gatekeeping function to ensure
that “any
and all scientific testimony or evidence admitted is not only
relevant, but reliable.”509
U.S. at 589;see
also Kumho
Tire Co. v. Carmichael,
526 U.S. 137, 152 (1999) (holding that whether the witness'
area of expertise was technical, scientific, or more generally “experience-based,”
the district court, in its “gatekeeping”
function, must “make
certain that an expert, whether basing testimony upon professional studies
or personal experience, employs in the courtroom the same level
of intellectual rigor that characterizes the practice of an expert
in the relevant field”);
Nimely
v. City of New York,
414 F.3d 381, 396 (2d Cir.2005) (“The
shift under the Federal Rules to a more permissive approach
to expert testimony ...
did not represent an abdication of the screening function traditionally
played by trial judges.”).
Thus,
under Rule 702, the district court must make several determinations
before allowing expert testimony: (1) whether the witness is qualified
to be an expert; (2) whether the opinion is based
upon reliable data and methodology; and (3) whether the expert's
testimony on a particular issue will assist the trier of
fact. See
Nimely,
414 F.3d at 396-97. Moreover, if the requirements of Rule
702 are met, the district court must also analyze the
testimony under Rule 403 and may exclude the testimony “if
its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury
.”Fed.R.Evid.
403; accord
Nimely,
414 F.3d at 397.
Under
the Daubert
standards, the Court must first determine whether the expert has
sufficient qualifications to testify. See
Zaremba
v. Gen. Motors Corp.,
360 F.3d 355, 360 (2d Cir.2004) (stating that, where the
witness lacked qualifications, an analysis of the remaining Daubert
factors “seems
almost superfluous”).
Specifically, under Rule 702, the Court must determine whether the
expert is qualified “by
knowledge, skill, experience, training, or education.”Fed.R.Evid.
702. A court should look at the totality of the
witness' qualifications in making this assessment. See,
e.g., Rosco,
Inc. v. Mirror Lite Co.,
No. CV-96-5658, 2007 WL 2274858, at *5 (E.D.N.Y. Aug. 6,
2007) (“A
court must consider the ‘totality
of a witness'[ ] background when evaluating the witness'[ ]
qualifications to testify as an expert.”
’)
(quoting 29 Wright & Gold, Federal Practice and Procedure §
6265, at 246 (1997)); accord
Keenan
v. Mine Safety Appliances Co.,
No. CV-03-0710, 2006 WL 2546551, at *2 (E.D.N.Y. Aug. 31,
2006). In addition, the Court must ensure that the expert
will be proffering opinions on issues or subject matter that
are within his or her area of expertise. See
Stagl
v. Delta Air Lines, Inc.,
117 F.3d 76, 80 (2d Cir.1997).
*66
With respect to reliability, as the Second Circuit has explained,
the Daubert
Court “has
identified a number of factors bearing on reliability that district
courts may consider, such as (1) whether a theory or
technique can be (and has been) tested; (2) whether the
theory or technique has been subjected to peer review and
publication; (3) a technique's known or potential rate of error,
and the existence and maintenance of standards controlling the technique's
operation; and (4) whether a particular technique or theory has
gained general acceptance in the relevant scientific community.”Amorgianos
v. Nat'l R.R. Passenger Corp.,
303 F.3d 256, 266 (2d Cir.2002) (citations and internal quotations
omitted); accord
Nimely,
414 F.3d at 396. These criteria are designed to be
instructive, but do not constitute a definitive test in every
case. Kumho,
526 U.S. at 151;Nimely,
414 F.3d at 396. Moreover, in addition to these criteria
for determining whether the methodology is reliable, Rule 702 also
requires that there be a sufficiently reliable connection between the
methodology and the expert's conclusions for such conclusions to be
admissible. See
Gen.
Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997) (“[N]othing
in either Daubert
or the Federal Rules of Evidence requires a district court
to admit opinion evidence which is connected to existing data
only by the ipse
dixit
of the expert. A court may conclude that there is
simply too great an analytical gap between the data and
the opinion proffered.”);
see
also Amorgianos,
303 F.3d at 266 (“[W]hen
an expert opinion is based on data, a methodology, or
studies that are simply inadequate to support the conclusions reached,
Daubert
and Rule 702 mandate the exclusion of that unreliable opinion
testimony.”).
With
respect to whether the expert's testimony will assist the trier
of fact, the Second Circuit has repeatedly emphasized that “expert
testimony that usurp [s] either the role of the trial
judge in instructing the jury as to the applicable law
or the role of the jury in applying that law
to the facts before it, ...
by definition does not aid the jury in making a
decision; rather, it undertakes to tell the jury what result
to reach, and thus attempts to substitute the expert's judgment
for the jury's.”Nimely,
414 F.3d at 397 (citations and quotation marks omitted).
The
proponent of the expert testimony bears the burden of establishing
the admissibility of such testimony under the Daubert
framework by a preponderance of the evidence standard. See
Daubert,
509 U.S. at 592 n. 10 (“These
matters should be established by a preponderance of proof.”)
(citing Bourjaily
v. United States,
483 U.S. 171, 175-76 (1987)); see
alsoFed.R.Evid.
702 advisory committee's note (“[T]he
admissibility of all expert testimony is governed by the principles
of Rule 104(a). Under that Rule, the proponent has the
burden of establishing that the pertinent admissibility requirements are met
by a preponderance of the evidence.”);
Lust
v. Merrell Dow Pharms., Inc.,
89 F.3d 594, 598 (9th Cir.1996) (“It
is the proponent of the expert who has the burden
of proving admissibility.”);
accord
Baker
v. Urban Outfitters, Inc.,
254 F.Supp.2d 346, 353 (S.D.N.Y.2003) (same).
(B)
SUMMARY OF COURT'S RULINGS ON THE EXPERTS
*67
As noted above, in the instant case, the Court utilized
the procedure established for challenges to expert testimony under Daubert,
analyzed the particular expert testimony that each party sought to
admit under the applicable standard and, for the reasons set
forth in detail on the record, determined that the testimony
satisfied the requirements of Rule 702 and was not excludable
under Rule 403. However, for purposes of convenience and completeness,
the Court will summarize below the basis for the Court's
ruling on these Daubert
issues.
First,
each of the experts had sufficient qualifications as historians or
ethnohistorians by knowledge, skill, experience, training, or education to testify
about the colonial era documents pertaining to transactions or events
relating to the Westwoods parcel and to provide the historical
context for those documents. For example, although the Shinnecock Nation
challenged the credentials of Mr. Lynch, Judge Platt correctly found
him sufficiently qualified to be permitted to proffer his opinions.
Mr. Lynch's qualifications included, among other things, the following: (1)
a Bachelor of Arts degree from Southern Connecticut State University
where he majored in Sociology/Anthropology; (2) a Masters of Arts
Degree from Wesleyan University, where his concentration of study was
Anthropology/History and he authored a thesis on the process of
adoption among the Iroquois Confederacy during the 18th century; (3)
although he did not obtain a Ph.D., he completed all
the necessary requirements for a doctoral degree in Anthropology/History at
the University of Connecticut and passed his oral doctoral exam;
(4) he has taken courses in title searching and conducted
research, published works, and given presentations on many issues relating
to Indian tribes of New York and New England; (4)
he has approximately 13 years' experience as a private ethnohistorical
consultant on Indian-related matters concerning Indian land claims, historical title
searching, and petitions for federal acknowledgment as an Indian tribe;
and (5) he was qualified as an expert in a
Connecticut Superior Court lawsuit and has testified before the Connecticut
Legislative Planning and Development Committee regarding legislation involving land grants.
(T12; Tr. 394-96.) Thus, the Court found him qualified to
testify concerning the matters covered by his report and supplemental
report, including an analysis of interactions between the Shinnecocks and
early settlers of the Town, the nature and scope of
the Shinnecocks' historical use of Westwoods, and the nature and
scope of authority exercised over that property by the Shinnecocks
and the Town.
The
Court also found Alexander von Gernet (an adjunct professor of
Anthropology at the University of Toronto) to be qualified based
upon his educational background, training, experience, publications, teaching, and prior
expert certifications. (Tr. 996-97.) In fact, Professor von Gernet had
been qualified as a expert witness in numerous jurisdictions in
both Canada and the United States (including testifying and/or writing
affidavits in twenty court proceedings), had previously testified as an
expert with respect to the authority of the colonial governors,
had testified in the Cayuga
land claim litigation, and had written reports in three New
York land claim cases (Cayuga, Seneca, and Oneida) addressing claims
that certain Indian lands in New York remained unextinguished due,
among other things, to unauthorized acts by New York governors.
(S62.) Although defendants raised issues regarding Mr. Lynch's impartiality and
certain errors in his reports and testimony, and similar arguments
asserted in connection with errors in Professor von Gernet's report,
the Court concluded that those issues went to the weight
of their testimony, but were not sufficient to render them
unqualified under the Rule 702 standard. See
McCullock
v. H.B. Fuller Co.,
61 F.3d 1038, 1043 (2d Cir.1995) (holding that alleged weaknesses
in expert's academic training and “other
alleged shortcomings ...
were properly explored on cross-examination and went to his testimony's
weight and credibility-not its admissibility”).
*68
With respect to various arguments by the Shinnecock Nation that
either Mr. Lynch or Professor von Gernet were testifying about
issues or subject matters that were purportedly beyond their area
of expertise, the Court also found those arguments unavailing. For
example, although the Shinnecock Nation argued that Professor von Gernet
was not qualified to give testimony regarding the historical powers
of New York colonial governors and the Shinnecock Tribe because
he had never researched that particular issue prior to this
litigation, the Court concluded that his expertise and qualifications could
not be viewed so narrowly. Specifically, the Court ruled that
the training and skills he had clearly developed in his
other research and writing about the relationship between aboriginal people
and colonial governors qualified him to provided testimony about the
historical context of the authority of colonial governors as it
related to the Shinnecock Nation. (Tr. 997-98.) Similarly, despite objections
from the Shinnecock Nation, Mr. Lynch was qualified, based upon
the experience outlined above, to testify about the historical context
of various colonial era documents, including deeds and patents, as
well as the Canoe Place Division. See,
e.g., Bunt
v. Altec Indus. Inc.,
962 F.Supp. 313,
317 (N.D.N.Y.1997) (“Liberality
and flexibility in evaluating qualifications should be the rule ...
[T]he expert should not be required to satisfy an overly
narrow test of his own qualifications.”)
(citation and quotation marks omitted).
Second,
the Court found that the methodology used by the various
experts was sufficiently reliable to be admissible after considering the
Daubert
factors relating to this requirement. Specifically, the experts analyzed and
considered the pertinent historical documents (including deeds, patents, confirmations, and
other colonial era documents) in the context of the contemporary
historical understanding. For example, Mr. Lynch's research included a review
of “historical
documents and records, deed, wills, leases, municipal and public records,
treatises, and reports.”(T12,
at 6-7.) As a result, he spent substantial time researching
and compiling the historical record that he has outlined in
great detail in his report. The other experts, including Professor
von Gernet and Professor Hermes, utilized a similar methodology. Based
upon a review of these methodologies, the Court found that
the experts' testimony was sufficiently reliable to be admissible under
Daubert
and, as with the objections to qualifications, the purported weaknesses
complained of by the parties regarding methodology were the proper
subject of cross-examination and went to the weight of these
witnesses' testimony, not the admissibility. See
McCullock,
61 F.3d at 1044 (finding expert testimony properly admitted where
“[d]isputes
as to the strength of his credentials, faults in his
use of different etiology as a methodology, or lack of
textual authority for his opinion, go to the weight, not
the admissibility, of his testimony”);
see
also Daubert,
509 U.S. at 596 (“Vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”).
*69
Finally, while seeking to offer their own expert testimony on
these issues and topics, the parties sought to exclude or
limit the opposing expert's testimony by arguing that the proffered
expert testimony would not assist the court (as the trier
of fact) in resolving the disputed issue regarding the extinguishment
of aboriginal title and by arguing the testimony involved purely
questions of law. After carefully considering this issue, the Court
rejected those arguments and allowed both sides to present their
expert testimony. The Court recognizes that the issue of whether
aboriginal title was extinguished is a legal question for the
Court to resolve and not experts. However, in deciding that
issue, the Court is required to analyze centuries-old documents and
historical events. It is the Court's conclusion that the consideration
of expert testimony in the form of historians and ethnohistorians
clearly assists the Court as the trier of fact, at
a minimum, in identifying the ancient documents and historical events
that may be relevant on this issue and providing testimony
about the historical context for these documents and events to
ensure that the meaning of the documents and/or events are
not being misunderstood due to the substantial passage of time.
In
fact, the Second Circuit has emphasized, in the context of
litigation involving disputes about title to Indian land and extinguishment
of Indian title to that land, that it is critical
that the Court consider expert historical testimony to assist in
the Court's determination of the meaning and interpretation to give
to historical events. For example, in Oneida
Indian Nation v. New York,
691 F.2d 1070 (2d Cir.1982), the issue was whether, under
Article IX of the Articles of Confederation, New York had
authority to extinguish Indian title to lands within its bounds.
The district court, in granting a motion to dismiss, took
judicial notice of historical facts that had been presented by
both sides without the use of expert testimony. On appeal,
the Second Circuit reversed and remanded the case for an
evidentiary hearing to assist the district court in determining the
issue raised by the motion to dismiss. The Second Circuit
explained:
The
district court, after reviewing the language and meager legislative history
of the pertinent Articles [of Confederation] (no record of debates
or committee reports was made), took judicial notice of pertinent
individual records, notes, correspondence, histories, articles and other data, which
may collectively be described as “historical
evidence,”
as aids in interpreting the Articles, the Proclamation of 1783,
and the 1784 Fort Stanwix Treaty. When there is no
dispute as to the authenticity of such materials and judicial
notice is limited to law, legislative facts, or factual matters
that are incontrovertible, such notice is admissible....
However, when facts or opinions found in historical materials or
secondary sources are disputed, it is error to accept the
data (however authentic) as evidence, at least without affording the
opposing party the opportunity to present information which might challenge
the fact or the propriety of noticing it. Judicial notice
of a disputed fact should not ordinarily be taken as
the basis for dismissal of a complaint on its face.
The better course is to conduct an evidentiary hearing at
which the plaintiff may have its “day
in court,”
and, through time-honored methods, test the accuracy of defendants' submissions
and introduce evidence of its own.
*70
In the present case evidence of contemporary construction of the
key Articles and surrounding circumstances relevant to their meaning, of
which the district court took notice, contains statements with respect
to factual issues, such as the understanding of representatives of
federal and state governments and the Oneidas regarding the meaning
of the disputed clauses, the pre-Revolutionary practices of the British
Crown with respect to matters involved, and the post-Revolutionary practices
of the new federal government and the states under the
clauses. The district court drew heavily upon this extrinsic historical
evidence as the basis for its interpretation of the Articles
even though the evidence had not been the subject of
cross-examination or analysis through expert testimony and may not have
been put in perspective by introduction of other relevant evidence.
In short, both sides and the court appear to have
referred to, relied upon, and quoted from numerous untested primary
and secondary historical sources, including history books, treatises, and other
papers. We agree with appellants that the district court should
not have granted defendants' Rule 12(b) (6) motion on the
basis of this type of evidence without affording the plaintiffs
an evidentiary hearing in order to clarify the meaning and
context of statements relied on and the weight to be
given to them.
Oneida,
691 F.2d at 1086 (citations omitted). In another opinion issued
before the evidentiary hearing in Oneida
took place, the Second Circuit further articulated what type of
hearing needed to be held:[T]he hearing to be held by
the district court will be unlike the traditional trial of
an issue of fact. Instead, the trial court will consider
issues of law and statutory construction, against the historical background
of the events surrounding the treaties, and the adoption of
the applicable portions of the Articles of Confederation relied on
by plaintiffs. This factual background in turn will probably be
derived from the expert testimony of historians and others, and
consideration by the court of contemporaneous documents and oral traditions.
Oneida
Indian Nation v. New York,
732 F.2d 261, 265 (2d Cir.1984). On remand, the district
court conducted an evidentiary hearing during which it considered the
reports and testimony of the parties' respective experts and then
granted the defendants' motion to dismiss. Oneida
Indian Nation v. New York,
649 F.Supp. 420, 422 (N.D.N.Y.1986), aff'd,860
F.2d 1145 (2d Cir.1988).
In
other cases involving tribal land and gaming claims, courts have
similarly allowed consideration of historical experts to assist the trier
of fact.See,
e.g., Cayuga Indian Nation v. Pataki,
165 F.Supp.2d 266, 304-357 (N.D.N.Y.2001) (considering the testimony of Professor
von Gernet on the question of New York's good faith
in dealing with the Cayugas from the 1700s through the
1900s); see
also United
States v. Idaho,
210 F.3d 1067, 1069 (9th Cir.2000) (“At
issue in this case is the ownership of submerged lands
lying within the present-day boundaries of the Coeur d'Alene Indian
Reservation, which was originally set aside by executive order in
1873. After a nine-day trial involving multiple expert and lay
witnesses, extensive written reports, scientific studies, and historical documents, the
district court issued a lengthy and meticulous decision....”);
Wisconsin
v. Stockbridge-Munsee Cmty., |