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WESTERN MOHEGAN TRIBE AND NATION OF NEW YORK v. NEW YORK

May 25, 2000

WESTERN MOHEGAN TRIBE AND NATION OF NEW YORK; AND RONALD A. ROBERTS, INDIVIDUALLY AND AS CHIEF OF THE WESTERN MOHEGAN TRIBE AND NATION AKA CHIEF GOLDEN EAGLE, PLAINTIFFS,
V.
THE STATE OF NEW YORK; NEW YORK STATE OFFICE OF PARKS, RECREATION, AND HISTORICAL PRESERVATION; BERNADETTE CASTRO, SUED HEREIN IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE OFFICE OF PARKS, RECREATION, WEST PAGE 123 AND HISTORIC PRESERVATION; GEORGE E. PATAKI, SUED HEREIN AS GOVERNOR OF THE STATE OF NEW YORK; JAMES H. MALLOY, INC.; AND JOHN DOE(S), INDIVIDUALLY AND SEVERALLY, DEFENDANTS.



The opinion of the court was delivered by: Kahn, District Judge.

MEMORANDUM — DECISION AND ORDER

Presently before the Court is Plaintiffs' motion for a preliminary injunction. For the reasons set forth below, that motion is denied and the case dismissed sua sponte.

I. BACKGROUND

Plaintiff Roberts is the alleged chief of the Western Mohegan Tribe and Nation, a non-federally recognized Native American tribe. Plaintiffs contend that Schodack Island (the "Island"), a series of connected peninsulas located on the eastern shore of the Hudson River just south of the Village of Castleton-on-Hudson, is a site of religious and cultural significance to the tribe; New York State is in the process of turning the island into a state park for passive recreational activities such as picnicking, fishing, boating and camping.

Planning for the Schodack Island State Park (the "Park") occurred over two stages. From 1986 - 89, defendant New York State Office of Parks, Recreation and Historic Preservation ("OPRHP"), the state agency with jurisdiction over the Island, conducted a series of public meetings and worked with a local public advisory committee to develop a Master Plan, a comprehensive planning guide outlining the direction of the Park by balancing recreational needs with concerns for environmental and cultural resources. These planning efforts stalled until 1996 when the State renewed its focus on providing the public with recreational opportunities and access along the Hudson River. OPRHP relied on the prior public comment in presenting the Final Master Plan that reduced the size and number of programs originally considered. During the planning process, OPRHP determined to avoid an area thought to be the site of a former Mahican*fn1 village well south of the construction at issue in this case. Moreover, OPRHP contends that it intended to employ methods of construction that would be least likely to impact potential subsurface artifacts and remains.

In addition to the initial public comment, OPRHP again invited extensive comment prior to the Final Master Plan's adoption in August 1998 through various publications. In the course of this second round of public comment, OPRHP received comments from the Stockbridge-Munsee Tribe, a federally recognized Native American Tribe descended from the Mahicans, and the Muhhecunnew National Confederacy, a non-federally recognized entity. The Stockbridge-Munsee Tribe subsequently endorsed the Final Master Plan. At no point did Plaintiffs participate in the comment process.

In February 1999, defendant OPRHP began construction of a bridge and roadway to create public land access to the Park. The federal government owns a parcel of land to the extreme southerly end of the island chain on Houghtaling Island in Green County that has been placed under the jurisdiction of the United States Army Corps of Engineers (the "Corps"); that parcel is not part of the Park. To date, construction activity on the Island has consisted of road clearing, removal of brush and trees, and the bringing of fill to the site for the purposes of building up the access roads on both sides of the bridge span.

Plaintiff Roberts commenced this action on August 9, 1999, seeking a preliminary injunction and alleging violations of the Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001, et seq. ("NAGPRA"), and their Free Exercise rights under the First Amendment. In a decision issued September 2, 1999, this Court held that it lacked jurisdiction under NAGPRA and found the Free Exercise claim too vague to meet the demanding standard required for a preliminary injunction.

Undaunted, Plaintiffs commenced a second suit on December 9, 1999. Plaintiffs now allege claims under NAGPRA, the National Historic Preservation Act, 16 U.S.C. § 470, et seq. ("NHPA"), the Free Exercise Clause of the First Amendment to the United States Constitution, and 42 U.S.C. § 1983, seeking an order that (i) enjoins construction of the bridge connecting the mainland to the Island and (ii) orders the OPRHP to conduct a new archeological survey.

II. ANALYSIS

In most cases, a party seeking a preliminary injunction must demonstrate (1) that it will be irreparably harmed in the absence of an injunction, and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits of the case to make them a fair ground for litigation, and a balance of hardships tipping decidedly in its favor. See, e.g., Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 142 (2d Cir. 1997). One exception to the ordinary standard is that, where a preliminary injunction is sought against government action taken in the public interest pursuant to a statutory or regulatory scheme, the less-demanding "fair ground for litigation" standard is inapplicable, and therefore a "likelihood of success" must be shown. See International Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 70 (2d Cir. 1996). This higher standard reflects judicial deference toward "legislation or regulations developed through presumptively reasoned democratic processes." Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995) (per curiam).

Defendants argue that an even more rigorous standard — requiring a "clear" or "substantial" showing of likelihood of success — should apply because "(i) an injunction will alter, rather than maintain, the status quo, or (ii) an injunction will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits." Tom Doherty Assocs. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995). In this case, however, the preliminary injunction sought by Plaintiffs in this case would not lead to significant and irreversible alterations to the status quo. A mandatory injunction seeks to alter the status quo by a positive act, not a negative one as in the case sub judice. If the injunction is granted and Defendants prevail at trial, then construction can begin on the Island and no harm has been done that cannot be undone. Plaintiffs therefore must demonstrate only a likelihood of success on the merits.

A. NAGPRA

NAGPRA governs the disposition of Native American cultural items that are "excavated or discovered on federal or tribal lands." 25 U.S.C. ยง 3002(a). As this Court concluded in its prior decision, the Island does not fall within the scope of NAGPRA's jurisdiction ...


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