The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Defendant Madison County moves pursuant to Rules 52(b), 59(e) and 60(b) of the Federal Rules of Civil Procedure to amend or make additional findings, alter or amend the judgment, or for relief from the judgment filed on October 27, 2005. See Oneida Indian Nation of N.Y. v. Madison County, 401 F. Supp. 2d 219, 232-33 (N.D.N.Y. 2005) (permanently enjoining Madison County from foreclosing on Oneida Indian Nation property and declaring that the Oneida Indian Nation's reservation was not disestablished, among other things).*fn1 Amicus State of New York ("the State") filed a letter brief in support of Madison County's motion. Plaintiff Oneida Indian Nation of New York ("the Nation") opposes. Madison County filed a reply brief in further support.
Stockbridge-Munsee Band of Mohican Indians ("Stockbridge") moves to intervene as of right pursuant to Fed. R. Civ. P. 24(a)(2). Madison County did not object. The State filed a letter brief concurring with Madison County's position. The Nation opposes.
Oral argument was heard on January 30, 2006. Decision was reserved.
An extensive factual and procedural background is set forth in prior decisions, familiarity with which is assumed. See Oneida Indian Nation of N.Y. v. City of Sherrill, N.Y., 145 F. Supp. 2d 226, 233-36 (N.D.N.Y. 2001), aff'd, 337 F.3d 139, 146-52 (2d Cir. 2003), vacated & remanded, 544 U.S. 197, 125 S.Ct. 1478 (2005); Oneida Indian Nation of N.Y. v. Madison County, 401 F. Supp. at 222-223 (setting forth procedural history of the case); see also Oneida Indian Nation of N.Y. v. Madison County, 145 F. Supp. 2d 268 (N.D.N.Y. 2001), vacated & remanded, 337 F.3d 139 (2d Cir. 2003). Therefore, it is unnecessary to repeat that background here.
III. MADISON COUNTY'S MOTION
Madison County contends that there are five issues regarding what land remains part of the Oneida Indian Reservation ("the Reservation") which arise out the October 27, 2005, decision finding that the Reservation was not disestablished. Madison County urges that resolution of each of the five issues (in its favor) will result in a diminishment of the area that constitutes the Reservation. First, Madison County argues that the location of a part of the western boundary set forth in the 1788 Treaty of Ft. Schuyler is disputed. Next, it argues that it is disputed whether the six-mile-square Stockbridge reservation described in the 1788 Treaty was ever thereafter part of the Reservation. It then argues that treaties were entered into in 1798 and 1802 in which the Nation ceded land to the State. Finally, Madison County argues that the 1838 Treaty of Buffalo Creek authorized the sale of lands by the Nation to the State, which were consummated in 1840 through 1842, and those lands should not be considered a part of the Reservation. Madison County relies upon Federal Rules of Civil Procedure 52(b), 59(e) and 60(b) as bases for altering or amending the October 27, 2005, judgment.
Rule 52(b) provides that, upon a timely motion, findings may be amended and additional findings may be made, and the judgment may be altered accordingly. Rule 59(e) provides authority to alter or amend a judgment. Motions for reconsideration brought pursuant to these rules "can correct 'manifest errors of law or fact,' but cannot be used to 'relitigate old issues, to advance new theories, or to secure rehearing on the merits.'" Sank v. City Univ. of New York, No. 94 Civ. 0253(RWS), 2003 WL 21403682, at *2 (S.D.N.Y. June 19, 2003) (quoting, in a parenthetical, United States v. Int'l Longshoreman's Ass'n, 831 F. Supp. 167, 169 (S.D.N.Y. 1993), aff'd, 112 Fed. Appx. 761 (2d Cir. 2004)), aff'd, 52 F.3d 1173 (2d Cir. 1995); Cole v. United States, No. 98 CV 7670(SJ), 2005 WL 3454322, at *2 (E.D.N.Y. Dec. 7, 2005). In other words, additional facts or new theories cannot be presented on a motion for reconsideration, unless it is shown that there were "controlling decisions or data that the court overlooked." Shrader v. CSX Transp., Inc., 70 F.3d 255, 256-57 (2d Cir. 1995); Cole, 2005 WL 3454322, at *2; Sank, 2003 WL 21403682, at *2. Such purportedly overlooked decisions or data must "reasonably be expected to alter the conclusion reached by the court." Shrader, 70 F.3d at 257; Cole, 2005 WL 3454322, at *2.
In the October 27, 2005, Memorandum-Decision and Order, upon which the judgment was based, it was found that lands currently owned by the Nation could not be foreclosed upon by Madison County. It was further found that the Reservation (as reserved to the Nation in the 1788 Treaty of Ft. Schuyler and confirmed in the 1794 Treaty of Canandaigua) was not disestablished. Madison County rests its motion on the theory that certain later treaties either changed the boundaries of the Reservation or diminished the amount of land within it. It did not advance this theory in the more than six years that this case has been pending, including during the motion practice that led to the October 27, 2005, judgment. In fact, during that motion practice Madison County acquiesced in the Nation's assertion that all of the parcels at issue were within the Reservation. (See, e.g. Madison County Reply Mem. at 4-5.) Moreover, Madison County states unequivocally that "boundary-line issues were not presented" on that motion. Id. at 5.
Madison County has not pointed out any controlling decisions or data that were overlooked in reaching the October 27, 2005, decision. Rather, Madison County propounds a new theory and new facts on the current motion. New theories and new facts cannot provide a basis for relief pursuant to Rules 52(b) and 59(e). See Shrader, 70 F.3d at 256-57; Cole, 2005 WL 3454322, at ...