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CAYUGA INDIAN NATION OF NEW YORK v. FOX

July 29, 1982

THE CAYUGA INDIAN NATION OF NEW YORK, BY ITS CHIEFS, FRANKLIN PATTERSON, JAMES LEAFFE, VERNON ISAAC, KENNETH JOHN AND FRANK BONAMIE, Individually and as Members of the Cayuga Indian Nation of New York, Plaintiffs,
v.
EARL E. FOX; ROBERT E. WHITE; WILLIAM J. KIRK; GAIL KIRK; HENRY WM. KOCH; BARBARA F. KOCH; THOMAS B. MASTEN, JR.; JOHN J. CONWAY; HENRY TAMBURO; COUNTY OF SENECA, NEW YORK; HARRY F. AMIDON; Chairman of the Board of Supervisors; and COUNTY OF CAYUGA, NEW YORK, W. BERNARD CRAINE, Chairman of County Legislature, Defendants



The opinion of the court was delivered by: MCCURN

MEMORANDUM-DECISION AND ORDER

 NEAL P. McCURN, D.J.

 On November 19, 1980, plaintiff Cayuga Indian Nation of New York by its Chiefs ("Cayuga Indian Nation" or "plaintiffs"), commenced a civil action in this Court against numerous named defendants, both individually and as representatives of a proposed class of landowners seeking, inter alia, a declaration of plaintiffs' ownership and right to possess certain real property allegedly reserved for them by the State of New York and located in Seneca and Cayuga Counties. Cayuga Indian Nation v. Carey, No. 80-CV-930 (N.D.N.Y.) (hereinafter, "the Cayuga land claim"). Later that day, the plaintiffs, pursuant to N.Y. CPLR § 6501 et seq., filed Notices of Pendency with the County Clerk's Offices for Seneca and Cayuga Counties, which gave notice of the pendency of the Cayuga land claim in this federal district court and the effect of the action on the title to the real property involved. Both Notices incorporated by reference a listing of the landowners whose property would be affected together with a description of the property. Both Clerk's Offices received these Notices and began indexing the information provided by the plaintiffs. Despite the Cayuga Indian Nation's prior invocation of this Court's jurisdiction over the land in controversy and the existence of adequate means for challenging the sufficiency of the Notices of Pendency by motion in this Court, *fn1" certain of the landowners whose property lies within the land claim area instituted two carbon-copy state court proceedings in an effort to block further indexing of the Notices. The state court plaintiffs, proceeding under Art. 78 of the N.Y. CPLR against the Clerks of Seneca and Cayuga Counties and without joining the Cayuga Indian Nation as a party, sought and obtained judgments which permanently enjoined the County Clerks from indexing the respective Notices of Pendency and further enjoined the Clerks to expunge from their records so much of the indexing as had been accomplished.

 The Cayuga Indian Nation then commenced this separate but ancillary action for preliminary and permanent injunctive relief against the enforcement of the orders issued in the two state court proceedings. Plaintiffs contend that because the state court judgments were entered without the joinder or participation of the Cayuga Indian Nation and without regard for this Court's pre-existing jurisdiction over the underlying land claim, the orders deprived plaintiffs of their statutory rights without due process of law and unnecessarily interfered with this Court's prior and continuing jurisdiction over the res, or real property in controversy.

 On December 15, 1980, this Court denied plaintiffs' request for a temporary restraining order. Thereafter, on December 23, 1980, this Court heard argument on plaintiffs' motion for a preliminary injunction. At the conclusion of that hearing, plaintiffs requested an evidentiary hearing. The hearing followed and was ordered consolidated with the trial on the merits, Fed. R. Civ. P. 65(a)(1). Now, after careful review of the testimony and evidence presented, together with the briefs and affidavits submitted by the parties and others appearing as amicus curiae, this Court is firmly convinced that the requested injunction is warranted and that the United States District Court for the Northern District of New York is the proper forum for all claims concerning the adequacy of the Notices of Pendency filed in the Indian land claim. The following shall constitute the findings of fact and conclusions of law in support of this decision.

 I. FACTS AND PROCEDURAL BACKGROUND.

 As noted above, the Cayuga Indian Nation commenced their land claim litigation in this Court on November 19, 1980. The complaint in that action, 80-CV-930, named numerous State, corporate and individual landowners in Seneca and Cayuga Counties as defendants in their individual capacity and as representatives of a defendant class defined to include all landowners within the Cayuga Indian Nation's Original Reservation lands, as depicted on a map attached to the complaint. Later that day, plaintiffs filed separate Notices of Pendency with the Seneca and Cayuga County Clerk's Offices. Each of the Notices contained the caption of the underlying land claim and included the following information: (1) notice that the federal lawsuit had been commenced; (2) identification of the plaintiffs; (3) notice concerning the nature of the relief sought in 80-CV-930 and, (4) a list containing the names of both the named defendant landowners and the members of the proposed class of defendant landowners, together with a description of the land affected by the Cayuga land claim. The identification of the property owners and the description of the land affected by 80-CV-930 were contained in separate booklets that were incorporated by reference into the Notices of Pendency filed in each of the County Clerk's Offices. In sum, the Notices of Pendency were not limited in their scope to the defendants initially named in and served with the Complaint filed in 80-CV-930, but also listed all members of the as yet uncertified defendant class.

 The Notice of Pendency filed in Seneca County reflects transfers of land which occurred prior to October 1979. The Notice filed in Cayuga County reflects transfers which occurred prior to January 1980. Thus, as might be expected in a land claim of this magnitude, the Notices of Pendency may contain some information that is not fully current. With respect to the description of property affected by the land claim, the Notice filed in Seneca County contains the book (liber) and page numbers for the owners and property listed; the Notice filed in Cayuga County does not contain the same type of book and page references, but does identify the property by owner, and map, block and lot numbers maintained by the county tax office.

 A. Seneca County Proceedings

 On November 22, 1980, defendants William and Gail Kirk and Henry and Barbara Koch sought to challenge their inclusion in the Notice of Pendency by commencing a proceeding under N.Y. CPLR Art. 78 in New York State Supreme Court (Seneca County) against Thomas Masten, the Seneca County Clerk. The petition requested a judgment enjoining the Clerk from indexing the Notice of Pendency on the grounds that the Notice was insufficient as a matter of law and neither the Koch's nor the Kirk's were named as parties in the Cayuga land claim. Petitioners further asserted that these irregularities deprived the County Clerk of jurisdiction to index the Notice. Pursuant to an order to show cause, the matter came on for hearing before the Hon. John Conway on December 1st and 2nd, 1980. Although the Cayuga Indian Nation was not joined as a party, the Nation's attorneys learned of the state proceeding and were present on the first hearing date. On that date, Judge Conway offered to permit the Cayuga Indian Nation to appear in the proceeding, and defendants Kirk and Koch stated that they had no objection to an adjournment to permit the Cayugas to prepare their case. However, the attorneys for the Cayugas declined to take any part in the state court proceedings on the ground that they had not been joined as parties and chose not to consent to the jurisdiction of the state court. Having declined to enter the state action voluntarily, the Cayuga Indian Nation had no further participation in the action.

 On December 3, 1980, Justice Conway entered a decision-judgment enjoining the Seneca County Clerk from indexing the Notice of Pendency filed by plaintiffs. He further enjoined the Clerk to expunge from his records so much of the information as had been entered. The decision rested on the grounds that the Notice did not adequately describe the property affected by the Cayuga land claim and did not contain a list of the names of the defendants against whom the Notice was to be indexed. It appears that the booklet described above which plaintiffs filed as part of their Notice of Pendency was not included in the record of the Art. 78 proceeding before Justice Conway.

 B. The Cayuga County Proceedings

 On December 11, 1980, defendant Earl Fox instituted a virtually identical Art. 78 proceeding in State Supreme Court, Cayuga County, seeking to enjoin Henry Tamburo, the Cayuga County Clerk, from indexing the Notice of Pendency filed in that County. Once again, the Cayuga Indian Nation was not joined as a party in the proceeding to challenge the adequacy of their Notice of Pendency. Although the plaintiffs learned of this state court action from newspaper reports, they did not participate in the hearing before the Hon. Robert White on December 15, 1980, the return date of the order to show cause in Fox v. Tamburo, No. 80-8296 (Sup. Ct., Cayuga County). On December 15, 1980, Justice White entered a decision and judgment similarly enjoining the Cayuga County Clerk from indexing plaintiffs' Notice of Pendency and an order directing the Clerk to expunge so much of the Notice as had already been indexed. Justice White rested his conclusion that the Clerk lacked jurisdiction to index the Notice on the sole ground that the Notice did not contain an adequate description of the property ...


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