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May 20, 2004.


The opinion of the court was delivered by: DAVID HURD, District Judge



  On April 27, 2004, the Village of Union Springs, Town of Springport, and County of Cayuga, New York ("Defendants") filed a Notice of Appeal regarding, among other things, the Memorandum-Decision and Order filed on April 23, 2004, permanently enjoining them from enforcing local zoning and land use laws against the Cayuga Indian Nation of New York ("the Nation)" regarding use of property it owns within Defendants' municipal boundaries ("the Property"). Defendants now move, pursuant to Fed.R.Civ.P. 62(c), for an injunction pending appeal enjoining the Nation from further construction, demolition, and/or renovation work at the Property. The Nation opposes. In the alternative, the Nation requests that the Defendants be required to post a substantial bond in the event a stay is granted.

  Oral argument was heard on May 13, 2004 in Utica, New York. Decision was reserved. Familiarity with the April 23, 2004 decision, as well as the Memorandum-Decision and Order issued on November 28, 2003, is assumed. See Cayuga Indian Nation of New York v. Village of Union Springs, et al., __ F. Supp.2d __, No. 03-CV-1270, 2004 WL 884589 (N.D.N.Y. Apr. 23, 2004); Cayuga Indian Nation of New York v. Village of Union Springs, etal., 293 F. Supp.2d 183 (N.D.N.Y. 2003).


  A. Standard

  Fed.R.Civ.P. 62(c) provides, in relevant part:
When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
Although generally, "once a notice of appeal has been filed, `it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal,'" Kidder, Peabody & Company, Inc. v. Maxus Energy Corp., 925 F.2d 556, 564 (2d Cir. 1991), quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402 (1982), pursuant to Fed.R.Civ.P. 62(c), "a district court may grant injunctive relief after a proper notice of appeal has been filed, but only when it is necessary to preserve the status quo pending appeal," id., citing International Ass'n of Machinists & Aerospace Workers v. Eastern Air Lines, Inc., 847 F.2d 1014, 1018 (2d Cir. 1988).*fn1
  Pursuant to Rule 62(c), in order "[t]o determine whether a stay of an order pending appeal is appropriate, a court must evaluate the following factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."
Rodriauez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999), quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119 (1987). Defendants, as movants, have the heavy burden of establishing that the aforementioned factors weigh in favor of a stay. See Handberry v. Thompson, No. 96 Civ. 6161, 2003 WL 1797850, at *1 (S.D.N.Y. Apr. 4, 2003), citing Cooper v. Town of East Hampton, 83 F.3d 31, 36 (2d Cir. 1996). See also Juan v. Rowland, No. Civ. H-89-859, 2001 WL 263395 (D. Ct. Feb. 9, 2001); Schwartz v. Dolan, 159 F.R.D. 380, 383 (N.D.N.Y. 1995), vacated in part on other grounds, 86 F.3d 315 (2d Cir. 1996).

  When deciding whether a stay is warranted, it is important to keep in mind that "[t]he necessary `level' or `degree' of possibility of success will vary according to the court's assessment of the other [stay] factors." Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002), quoting Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). That is to say, where, for example, the stay applicant's showing of a likelihood of success is not very strong, a higher quantum of irreparable injury is required, and conversely, a strong showing of a likelihood of success is required where irreparable injury is not very evident. See Id. For this reason, the likelihood of success factor will be discussed last.

  B. Analysis

  1. Irreparable Injury to Defendants

  Defendants must establish that, in the absence of a stay pending appeal, they will be irreparably injured. Here, Defendants argue, citing New York v. Shinnecock Indian Nation, 280 F. Supp.2d 1 (E.D.N.Y. 2003), that the Nation's construction and operation of a gaming facility on the Property will have a substantial impact on the quality of life in the Village of Union Springs (the Village) and that such harm is imminent. Defendants also argue, citing Kansas v. United States, 249 F.3d 1213 (10th Cir. 2001), that they will be irreparably harmed by the prospect of losing sovereignty over the Property.*fn2 Both of these cases, however, are distinguishable.

  In Shinnecock, the court enjoined a non-federally recognized Indian tribe from construction of a Class III gaming facility on a parcel of land it owned in the Town of Southampton that was not within the tribe's reservation and was not taken into trust by the United States. See 280 F. Supp.2d at 3. In finding that the plaintiff there established irreparable harm, the court recognized that the "likely harm to the pristine community of Southampton could be devastating" if the tribe were not required to adhere to state and local environmental laws, specifically noting plaintiffs' argument that the tribe may need to install a waste water treatment facility on the property. See Id. at 5. No such concern has been raised here. In fact, Defendants only argue that increased traffic congestion threatens to harm the quality of life in the Village, and refer to arguments advanced in a previous motion regarding the "possible problems with utility services and the possible adverse effect that the location of the gaming facility, 300 yards from the high school, would have on the Village." See Mem. of Law in Supp. of Defs.' Mot. for an Inj. Pending Appeal, at 2-3, citing Aff. of Edward A. Trufant, Oct. 29, 2003, at ¶ 21 (emphasis added). Moreover, the court in Shinnecock expressed concern regarding the tribe's intent to conduct class III gambling on the property when to do so without a tribal-state compact would be a violation of state law as well as the Indian Gaming Regulatory Act (IGRA). See Id. Here, the Nation plans to operate a class II gaming facility, which, unlike a class III facility, will not require such a compact. See 25 U.S.C. § 2710(d)(1)(C). Also, the Nation, unlike the tribe in Shinnecock, is a federally recognized tribe and is in possession of a gaming ordinance issued by the National Indian Gaming Commission (NIGC) pursuant to IGRA. See § 2710(b)(2). It is also important to note that, unlike the proposed facility at issue in Shinnecock, which included plans for a casino with, at the very least, 900 to 1000 gaming machines and 60 table games,*fn3 here, the Nation plans to operate only 100 electronic bingo machines in its facility. See Shinnecock, 280 F. Supp. at 3 n.1. Moreover, Defendants fail to adequately explain how the Nation's facility will generate more traffic than any other business in the Village.

  The Tenth Circuit's holding in Kansas v. United States is likewise distinguishable. There, the court affirmed a district court's order granting a motion for a preliminary injunction to stay all activities by an Indian tribe relating to gaming on the property at issue. See Kansas, 249 F.3d at 1221. The underlying lawsuit arose after the NIGC determined that said property was "Indian land" within the meaning of IGRA. See id. at 1220. In deciding the motion for a preliminary injunction, the district court found that plaintiff met the "likelihood of success on the merits" element, ostensibly because it concluded that the NIGC's determination was "arbitrary and frivolous." Id., at 1221. Before reaching that element of plaintiff's motion, the Tenth Circuit found that plaintiff there made the required showing of irreparable harm, stating that "because the State of Kansas claims the NIGC's decision places its sovereign interests and public policies at stake, we deem the harm the State stands to suffer as irreparable if deprived of those interests without first having a full and fair opportunity to be heard on the merits." Id. at 1227. The procedural posture of this case is very different. On a motion for summary judgment, the Property here was declared Indian Country pursuant to 18 U.S.C. § 1151(a) and Defendants were enjoined from enforcing their zoning laws or ordinances to regulate the Nation's ...

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