THE CANADIAN ST. REGIS BAND OF MOHAWK INDIANS; et al., Plaintiffs,
STATE OF NEW YORK; et al., Defendants.
MEMORANDUM-DECISION and ORDER
LAWRENCE E. KAHN, District Judge.
These ancestral land claims come before the Court on a Report-Recommendation filed September 28, 2012, by the Honorable Therèse Wiley Dancks, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d) of the Northern District of New York. Dkt. No. 581 ("Report-Recommendation"). An avalanche of Objections, Responses, Replies, and Surreplies followed. See Dkt. Nos. 589 ("State and Municipal Defendants' Objections"); 590 ("Akwesasne Mohawks' Objections"); 592 ("United States's Objections"); 594 ("St. Regis Mohawks' Objections"); 605 ("Akwesasne Mohawks' Response"); 606 ("State and Municipal Defendants' Response"); 607 ("St. Regis Mohawks' Response"); 608 ("Unites States's Response"); 610 ("NYPA's Response"); 618 ("St. Regis Mohawks' Reply"); 619 ("United States's Reply"); 621 ("Akwesasne Mohawks' Reply"); 626 ("State Defendants' and NYPA's Surreply"); 627 ("Municipal Defendants' Surreply"). After thoroughly surveying the asserted grounds of objection to the Report-Recommendation, the Court approves and adopts the majority of it and rejects the remainder.
Because the underlying history of this case extends back nearly to the founding of the United States of America and has been retold many times, the Court does not provide a recitation of the facts except as necessary in each Part infra to contextualize and resolve the relevant issue. For an account of the history leading up to this case, and of this case itself, reference is made to the Report-Recommendation. See Report-Rec. at 5-14; see also Canadian St. Regis Band of Mohawk Indians v. New York (St. Regis IV) , 146 F.Supp.2d 170, 174-80 (N.D.N.Y. 2001). In short, Plaintiff tribes ("the Mohawks") and Plaintiff-Intervenor the United States ("the United States") (collectively, "Plaintiffs") are suing Defendants for title to and back rent, waste, and exploitation damages for land Plaintiffs contend was conveyed out of their possession unlawfully between 168 and 203 years ago. After numerous stays for settlement negotiation or pending resolution of potentially relevant Second Circuit and U.S. Supreme Court cases, Defendants moved for judgment on the pleadings under Federal Rule of Procedure 12(c) on the ground of laches. Dkt. Nos. 446-47, 449 (collectively, "Defendants' Motions"). Judge Dancks has now recommended that Defendants' Motions be granted in part and denied in part, and the parties have objected voluminously as set forth supra. Report-Rec. at 46-47.
III. LEGAL STANDARDS
A. Objections to a Report-Recommendation
A district court must review de novo any objected-to portions of a magistrate judge's report-recommendation or specific proposed findings or recommendations therein and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b); accord FED. R. CIV. P. 72(b); see also Morris v. Local 804, Int'l Bhd. of Teamsters , 167 F.Appx. 230, 232 (2d Cir. 2006); Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013). If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error. Chylinski v. Bank of Am., N.A., 434 F.Appx. 47, 48 (2d Cir. 2011); Barnes, 2013 WL 1121353, at *1; Farid v. Bouey , 554 F.Supp.2d 301, 306-07 & n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06 Civ. 13320 , 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) ("[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument."). A district court also "may receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b); accord FED. R. CIV. P. 72(b)(3).
B. Rule 12(c)
Rule 12(c) motions for judgment on the pleadings are decided by the same standard as Rule 12(b)(6) motions to dismiss for failure to state a claim upon which relief can be granted. Hayden v. Paterson , 594 F.3d 150, 160 (2d Cir. 2010). Thus, "[t]o survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face, '" Graziano v. Pataki , 689 F.3d 110, 114 (2d Cir. 2012) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)), when the complaint's factual allegations are taken as true and all reasonable inferences are drawn in a plaintiff's favor. Kirkendall v. Halliburton, Inc. , 707 F.3d 173, 178 (2d Cir. 2013). The movant bears the burden of showing "that no material issue of fact remains to be resolved and that [it] is entitled to judgment as a matter of law.'" Juster Assocs. v. City of Rutland , 901 F.2d 266, 269 (2d Cir. 1990) (quoting 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1368 (1969)); accord 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1368 (3d ed. 2012). "Where a court grants a Rule 12(b)(6) or Rule 12(c) motion based on an affirmative defense, the facts establishing that defense must: (1) be definitively ascertainable from the complaint and other allowable sources of information; and (2) suffice to establish the affirmative defense with certitude." Gray v. Evercore Restructuring L.L.C. , 544 F.3d 320, 324 (1st Cir. 2008) (internal quotation marks omitted).
C. Sherrill "Laches"
Laches is an affirmative defense, see, e.g., Fendi Adele, S.R.L. v. Ashley Reed Trading, Inc., 507 F.Appx. 26, 29 (2d Cir. 2013), with a peculiar application-referred to herein as "Sherrill laches" or "the Sherrill defense"-in the context of ancestral land claims such as this. See generally, e.g., City of Sherrill v. Oneida Indian Nation of N.Y. , 544 U.S. 197 (2005); Cayuga Indian Nation of N.Y. v. Pataki , 413 F.3d 266 (2d Cir. 2005) (holding laches applicable to ancestral land claims at law even though laches is a defense in equity); Oneida Indian Nation of N.Y. v. County of Oneida , 617 F.3d 114, 127-28 (2d Cir. 2010) (holding that the ancestral-land-claim version of laches does not require the elements of traditional laches). "Three specific factors determine when ancestral land claims are foreclosed on equitable grounds: (1) the length of time at issue between an historical injustice and the present day'; (2) the disruptive nature of claims long delayed'; and (3) the degree to which these claims upset the justifiable expectations of individuals and entities far removed from the events giving rise to the plaintiffs' injury.'" Onondaga Nation v. New York, No. 10-4273-CV, 2012 WL 5075534, at *1 (2d Cir. Oct. 19, 2012) (quoting Oneida , 617 F.3d at 127); see also Oneida , 617 F.3d at 135 ("[T]he [Sherrill] defense is properly applied to bar any ancient land claims that are disruptive of significant and justified societal expectations that have arisen as a result of a lapse of time during which the plaintiffs did not seek relief."); id. at 136 ("[T]he equitable defense originally recognized in Sherrill is potentially applicable to all ancient land claims that are disruptive of justified societal interests that have developed over a long period of time, of which possessory claims are merely one type, and regardless of the particular remedy sought.").
Because Sherrill laches is an equitable defense, it does not operate strictly; rather, "[i]n equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests." Lemon v. Kurtzman , 411 U.S. 192, 201 (1973).
"Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." Brown v. Bd. of Educ. , 349 U.S. 294, 300 (1955).... "The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims." Hecht Co. v. Bowles , 321 U.S. 321, 329-30 (1944).
Id. at 200-01; see also Holland v. Florida , 130 S.Ct. 2549, 2563 (2010) ("[C]ourts of equity... exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case."), quoted in Dillon v. Conway , 642 F.3d 358, 362 (2d Cir. 2011); cf. Galliher v. Caldwell , 145 U.S. 368, 373 (1892) ("[L]aches is not... a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced-an inequity founded upon some change in the condition or relations of the property or the parties."), quoted in Sherrill , 544 U.S. at 217-18.
A threshold issue in this case is whether Plaintiffs' claims are divisible or must instead stand or fall together. The Court determines that the unique circumstances and equities of this case warrant separate treatment of Plaintiff's claims. Specifically, and as described more fully in each Part addressing the claims infra, no party filed objections regarding the rivers claim; the Route 37 and power-lines claims involve specific federal right-of-way statutes and regulations but differ greatly on the crucial issue of antiquity; and the islands claim differs importantly from the original reservation claim in that the former concerns a different type of purported conveyance and involves the resolution of an international border and therefore the question whether, regardless of their reservation status, the islands are within New York or are unincorporated federal territory. Moreover, within the original reservation claim, an area styled as the Hogansburg Triangle warrants separate consideration because it is contiguous with and bounded on two sides by the currently occupied reservation territory; it was the collective subject of three purported conveyances not affecting any other title; and Plaintiffs' allegations strongly suggest that its character differs markedly from the other purportedly conveyed parcels of the original reservation territory. See Report-Rec. at 7-8 (describing Hogansburg Triangle and purported conveyances); id. at 35 ("[T]he Hogansburg Triangle looks like a missing Reservation puzzle piece."). Addressing all these claims as one would result in injustice either by applying Sherrill laches where it should not foreclose relief to Plaintiffs or by permitting disruptive claims to go forward when Sherrill laches should shield Defendants.
Other courts have not separated ancestral land claims in this way because they were not served the unique cocktail of claims and facts present here. Sherrill involved parcels purchased on the open market that were scattered throughout the Oneida Nation's ("Oneidas") original reservation territory. See Sherrill , 544 U.S. at 202. The Supreme Court was concerned that if such purchases by the Oneidas automatically and unilaterally revived Oneida sovereignty over those parcels, the result would be an unmanageable jurisdictional "checkerboard." Id. at 219-20. Moreover, the pattern of that checkerboard would be in constant flux as parcels within the Oneidas' original reservation territory were bought and sold by the Oneidas. Those concerns are not present here because these claims concern easily identifiable and discrete areas that are not scattered and do not rely on open-market transactions. Nor does considering the Hogansburg Triangle separately from the rest of the original reservation claim raise these concerns, because the Hogansburg Triangle does not present the administrative nightmare of checkerboard jurisdiction; on the contrary, the Hogansburg Triangle is an irregular carve-out from the reservation territory that, if ultimately recognized as Mohawk land, would make the reservation's border a straight line.
Cayuga involved 64, 015 acres that purportedly had been conveyed unlawfully from the Cayuga Nation ("Cayugas") to New York State in two transactions: one in 1795 for 62, 095 acres, and one in 1807 for the remaining 1, 920 acres. See Cayuga , 413 F.3d at 268-69. Oneida involved roughly 250, 000 acres that purportedly had been conveyed unlawfully from the Oneidas to New York State in a series of transactions from 1795 to 1846. See Oneida , 617 F.3d at 117. Onondaga involved a 10- to 40-mile-wide swath of Central New York from the northern to the southern border of the state, including the City of Syracuse, that purportedly had been conveyed unlawfully from the Onondaga Nation to New York State in a series of transactions from 1788 to 1822. See Onondaga, No. 05-CV-0314, 2010 WL 3806492, at *2-3 (N.D.N.Y. Sept. 22, 2010) (Kahn, J.), aff'd, 2012 WL 5075534 (2d Cir. Oct. 19, 2012). Although the claims in each of those three cases were barred by Sherrill laches, none of those three cases addressed claims like those present here involving rightsof-way and international borders; nor did any of those cases address circumstances like those of the Hogansburg Triangle, where a specific area both was the sole subject of certain transactions not affecting any other title and is alleged to differ markedly in character from the remainder of the claimed territory.
Because Sherrill, Cayuga, Oneida, and Onondaga do not require the Court to address Plaintiffs' claims as a monolithic whole, the Court is free to address those claims in the manner it deems equitable in light of the unique circumstances presented here. Accordingly, the Court addresses each of Plaintiff's claims, as briefly set forth supra, in turn.
B. Rivers Claim
Plaintiffs have not objected to Judge Dancks's recommendation that their claim that portions of the St. Lawrence and Racquette Rivers were unlawfully declared to be public highways should be dismissed on the ground of Sherrill laches. See Report-Rec. at 40 n.32; Akwesasne Mohawks' Obj'ns; United States's Obj'ns; St. Regis Mohawks' Obj'ns. The Court has therefore reviewed that aspect of the Report-Recommendation for clear error and has found none. See Cephas v. Nash , 328 F.3d 98, 107 (2d Cir. 2003) ("As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point."); Farid , 554 F.Supp.2d at 306. Accordingly, the St. Regis Mohawks' claim regarding portions of the St. Lawrence and Racquette Rivers is dismissed.
C. Route 37 Claim
Judge Dancks also recommends that the St. Regis Mohawks' claim regarding New York State Route 37 be dismissed on the ground of Sherrill laches. Report-Rec. at 40 n.32. At her suggestion, the Court takes judicial notice that Route 37 "is a main thoroughfare that runs across the north country, " including both the original reservation claim area and the uncontested Mohawk Reservation territory. Id .; see FED. R. EVID. 201(b) ("The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction."). The land on which Route 37 runs in part purportedly was conveyed to New York State on February 20, 1818. See Dkt. No. 447-4 ¶ 21B. Ejecting the state or otherwise requiring that the highway be rerouted at this late date would be highly disruptive in precisely the way Sherrill laches operates to prevent, and Judge Dancks was correct to recommend that the Court so hold. See Shinnecock Indian Nation v. New York, No. 05-CV-2887 , 2006 WL 3501099, at *5 n.9 (E.D.N.Y. Nov. 28, 2009) ("[E]jecting the Long Island Railroad from the Subject Lands would have devastating consequences to the region's economy and a drastic impact on thousands of commuters."); Cayuga Indian Nation v. Cuomo, Nos. 80-CV-930 , 80-CV-960, 1999 WL 509442, at *29 (N.D.N.Y. July 1, 1999) ("[E]jectment would mean that transportation systems, such as the New York State Thruway, would have to be rerouted at great expense. Putting aside costs, rerouting the Thruway would have almost unthinkable consequences in terms of intrastate and interstate commerce.").
The St. Regis Mohawks now argue, however, that their claim regarding Route 37 "is not for possession but for the State to comply with the federal rights-of-way laws." St. Regis Mohawks' Obj'ns at 41. Because this is a new argument, the Court addresses it de novo. See supra Part III.A. The St. Regis Mohawks contend that Sherrill laches cannot apply because federal approval for a right-of-way is required under 25 U.S.C. § 323 and 25 C.F.R. §§ 169.28 and 169.18, and such approval cannot exceed 50 years in duration. St. Regis Mohawks' Obj'ns at 40-41.
The 50-year limitation on rights-of-way under 25 C.F.R. § 169.18 does not apply to Route 37, because it is a public highway. The regulation reads, in relevant part:
All rights-of-way granted under the regulations in this part 169 shall be in the nature of easements for the periods stated in the conveyance instrument. Except as otherwise determined by the Secretary and stated in the conveyance instrument, rights-of-way granted under the Act of February 5, 1948 (62 Stat. 17; 25 U.S.C. 323-328), for... public roads and highways ... may be without limitation as to term of years; whereas, rights-of-way for all other purposes shall be for a period of not to exceed 50 years....
25 C.F.R. § 169.18 (emphases added). The St. Regis Mohawks have not alleged that any term of years was determined by the Secretary and stated in the instrument conveying the land on which Route 37 partially runs.
Moreover, the purported conveyance occurred in 1818, while 25 U.S.C. § 323, which governs rights-of-way over reservations generally and on which the St. Regis Mohawks rely, was not enacted until 1948. See also 25 U.S.C. § 311 (enacted 1901) (granting the Secretary of the Interior authority to approve the opening of public highways through reservations); 25 C.F.R. § 169.28 (providing that state or local authorities may apply for approval under 25 U.S.C. § 311). The authority granted to the Secretary under § 323 applies to lands " now or hereafter owned... by individual Indians or Indian tribes" or "held in trust by the United States for individual Indians or Indian tribes." 25 U.S.C. § 323 (emphasis added). Therefore, to claim that § 323 applies to Route 37 at all, the St. Regis Mohawks would have to claim that they retained ownership of the relevant parcels of land as of at least 1948, which would in turn require claiming that those parcels were not validly conveyed to New York State in 1818. Similarly, 25 U.S.C. § 311 and 25 C.F.R § 169.28 speak to the opening of public highways, while New York State purportedly acquired the right-ofway in question long before either provision was enacted and this action was filed. Because, as explained supra, the St. Regis Mohawks are barred by Sherrill laches from making a possessory claim to Route 37, they ...