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State of New York, New York State Racing and Wagering v. Shinnecock Indian Nation

June 25, 2012

STATE OF NEW YORK, NEW YORK STATE RACING AND WAGERING BOARD, AND NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, PLAINTIFFS-APPELLEES, TOWN OF SOUTHAMPTON, CONSOLIDATED-PLAINTIFF-APPELLEE,
v.
SHINNECOCK INDIAN NATION, LANCE A. GUMBS, RANDALL KING, KAREN HUNTER, AND FREDERICK C. BESS, DEFENDANTS-APPELLANTS.*FN1



Appeal from a judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge) granting a permanent injunction prohibiting the Shinnecock Indian Nation and its tribal officials from developing a casino on a plot of land known as Westwoods without complying with the laws of New York State and the Town of Southampton.

The opinion of the court was delivered by: John M. Walker, Jr., Circuit Judge:

08-1194-cv(L)

State of New York v. Shinnecock Indian Nation

Argued: March 7, 2011

Before : WALKER, B.D. PARKER, and HALL, Circuit Judges.

Judge HALL dissents in a separate opinion.

35 The Shinnecock Indian Nation and its tribal officials 36 (collectively, the "Shinnecock" or the "Tribe") appeal from a 1 judgment of the United States District Court for the Eastern 2 District of New York (Joseph F. Bianco, Judge). After a bench 3 trial, the district court granted a permanent injunction 4 prohibiting the Tribe from developing a casino on a plot of land 5 known as Westwoods without complying with the laws of New York 6 State and the Town of Southampton. The Shinnecock object to a 7 number of the district court's factual and legal conclusions, 8 including its findings: (1) that tribal sovereign immunity from 9 suit does not bar this action; (2) that the Shinnecock's 10 aboriginal title to the land at Westwoods was extinguished in the 11 seventeenth century; (3) that even if aboriginal title had not 12 been extinguished, equitable principles would prevent the 13 Shinnecock's development of a casino in violation of state and 14 local law; and (4) that the federal Indian Gaming Regulatory Act 15 ("IGRA") supplanted any federal common law right the Tribe may 16 have had to operate the casino. They also argue that the Bureau 17 of Indian Affairs's recent recognition of the Shinnecock Indian 18 Nation moots the injunction.

19 We conclude that the district court lacked subject matter 20 jurisdiction over this action, and thus do not reach the merits 21 of this appeal.

22 BACKGROUND

23 In 2003, the Shinnecock entered into a contract for the 24 construction of a 61,000-square-foot casino on 80 acres of land 1 it owned, known as Westwoods, in the town of Southampton, New 2 York. The Tribe did not obtain permits from the State of New 3 York or the Town of Southampton. In July 2003, the Shinnecock 4 began bulldozing trees and brush to begin construction.

5 On or about June 29, 2003, the State of New York, the New 6 York State Racing and Wagering Board, and the New York State 7 Department Of Environmental Conservation (collectively, "the 8 State") sued the Tribe in New York State Supreme Court, seeking 9 to prevent it from going forward with the casino without 10 complying with state law. The State asserted five claims. The 11 first alleges that the planned casino violates state law, and is 12 outside the scope of the IGRA - a federal act that authorizes 13 tribal gaming under certain conditions - because the Tribe is not 14 federally recognized and Westwoods is not "Indian lands." The 15 remaining claims allege that construction of the casino would 16 violate state environmental laws because the Tribe did not obtain 17 required permits or conduct a required environmental review.*fn2

1 The State sought an injunction preventing the Tribe from 2 constructing and operating a gaming facility at Westwoods. It 3 also sought a declaration that, among other things, the Tribe may 4 not pursue gambling activities at the site until it complies with 5 state law or the IGRA.

6 The Shinnecock removed the case to federal court on the 7 basis that the State's complaint pleaded issues of federal law. 8 The removal notice identified four "conclusions about federal 9 law" alleged in the complaint, all of which relate to the 10 complaint's assertion that federal law does not authorize the 11 Shinnecock to construct a casino at Westoods in violation of 12 state and local law. In its answer to the complaint, the Tribe 13 admitted that it had not obtained any permit from the State of 14 New York or the Town of Southampton. It asserted, however, that 15 on the basis of federal Indian law, neither the State nor the 16 Town has the power to regulate activities at Westwoods because 17 the Tribe has aboriginal title to the land.

1 pursuant to ECL § 15-1527," and thus "have no right to commence 2 construction of a casino [at Westwoods] with a new well with an 3 installed pumping capacity in excess of forty-five gallons per 4 minute." The fifth and final claim alleges that the Shinnecock 5 "failed to conduct assessments or studies necessary for DEC's 6 compliance with [the New York State Environmental Quality Review 7 Act] . . . , or to provide DEC with funds sufficient to allow DEC 8 to conduct such assessments or studies," and, as a result, "DEC 9 may not issue permits that would allow the construction and 10 operation of a casino" at Westwoods.

18

1 The State moved to remand the action to state court, 2 disputing the presence of a federal question on the face of its 3 complaint. It argued that its complaint is based entirely on 4 violations of New York state law, that the Shinnecock's removal 5 is based on the complaint's anticipation of the Shinnecock's 6 defenses, and that the complaint's reference to the IGRA asserts 7 only that the IGRA does not apply, whereas only state law does. 8 Judge Platt, to whom this case was initially assigned, 9 denied the State's motion. He found that the State's complaint 10 asserts a violation of the IGRA and raises federal questions 11 about the possessory rights of Indian tribes. New York v. 12 Shinnecock Indian Nation, 274 F. Supp. 2d 268 (E.D.N.Y. 2003).

13 Shortly before Judge Platt's decision on the remand motion, 14 the Town of Southampton (the "Town") filed a separate suit 15 alleging that the Shinnecock's construction of a casino would 16 violate the Town's zoning, land use, and wetlands protection 17 ordinances, and seeking injunctive and declaratory relief.*fn3 The 1 Shinnecock removed the Town's action to federal court. The Town 2 moved to remand, but the district court suspended decision on the 3 motion and the Town eventually withdrew it when the district 4 court consolidated the Town's suit with the State's.

5 After additional rounds of motion practice, the district 6 court conducted a bench trial.*fn4 The parties introduced evidence 7 of the history of the Shinnecock and their aboriginal title to 8 the land at Westwoods, and of the casino's potential impact on 9 neighboring landowners and the Town of Southampton.

10 At the close of trial, the district court ruled in favor of 11 the State and the Town and granted a permanent injunction 12 prohibiting the Shinnecock from building a casino on Westwoods 13 without complying with state and local law. New York v. 14 Shinnecock Indian Nation, 523 F. Supp. 2d 185 (E.D.N.Y. 2007); 15 see also New York v. Shinnecock Indian Nation, 560 F. Supp. 2d 16 186 (E.D.N.Y. 2008) (modifying injunction). The district court 17 found (1) that tribal sovereign immunity from suit does not bar 18 this action; (2) that the Shinnecock's aboriginal title to the 19 land at Westwoods was extinguished in the seventeenth century; 20 (3) that even if the Shinnecock had unextinguished aboriginal 1 Code" - which regulates activities permissible on land, such as 2 Westwoods, that is designated as a wetlands area - and that the 3 Tribe thus may not conduct Site Preparation Activities at 4 Westwoods.

1 title, equitable considerations would, under City of Sherrill v. 2 Oneida Indian Nation, 544 U.S. 197 (2005), bar their development 3 of a casino at Westwoods because of the disruption it would cause 4 to the Town and the long-standing expectations of its residents; 5 and (4) that the IGRA, which did not apply to the Shinnecock 6 because they were not a federally-recognized tribe, supplanted 7 any federal common law right Indian tribes might have had to 8 operate casinos. See Shinnecock Indian Nation, 523 F. Supp. 2d 9 at 249-302.

10 The Shinnecock appealed. They challenge the district 11 court's legal and factual conclusions and argue that the federal 12 government's recent recognition of the Tribe has mooted the 13 injunction.

14 DISCUSSION

15 Before we can address the merits of the Shinnecock's appeal, 16 we must determine whether the district court had subject matter 17 jurisdiction over the case. In re Methyl Tertiary Butyl Ether 18 ("MTBE") Prods. Liab. Litig., 488 F.3d 112, 121 (2d Cir. 2007).

19 Although the plaintiffs argued below that federal jurisdiction 20 was absent, on appeal all parties take the position that subject 21 matter jurisdiction exists based on the federal questions the 22 case raises. Nevertheless, we must conduct an independent 23 inquiry. Jurisdiction cannot be created by the consent of the 24 parties. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 8 1 83, 95 (1998) ("[E]very federal appellate court has a special 2 obligation to satisfy itself not only of its own jurisdiction, 3 but also that of the lower courts in a cause under review, even 4 though the parties are prepared to concede it." (internal 5 quotation marks omitted)); City of New York v. Mickalis Pawn 6 Shop, LLC, 645 F.3d 114, 125-26 (2d Cir. 2011).

7 I. The Well-Pleaded Complaint Rule

8 Under 28 U.S.C ยง 1331, federal district courts have 9 jurisdiction over cases "arising under the Constitution, laws, or 10 treaties of the United States." A cause of action arises under 11 federal law only when the plaintiff's "well-pleaded complaint" 12 raises an issue of federal law. Metro. Life Ins. Co. v. Taylor, 13 481 U.S. 58, 63 (1987). "The 'well-pleaded complaint rule' is 14 the basic principle marking the boundaries of the federal 15 question jurisdiction of the ...


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