Comm'r of the N.Y.S. Dep't of Transp. v. Polite
| Decision Date | 18 May 2020 |
| Docket Number | 610010/2019 |
| Parties | COMMISSIONER OF the NEW YORK STATE DEPARTMENT OF TRANSPORTATION and The State of New York, Plaintiffs, v. Bryan A. POLITE, Launcelot A. Gumbs, Seneca Bowen, Daniel Collins Sr., Germain Smith, Donald Williams Jr., Linda Franklin, Outdoor, Inc./Idon Media, Larry Clark, Digital Outdoor Advertising, LLC, and Idon Media LLC, Defendants. |
| Court | New York Supreme Court |
PLTFS' ATTORNEY: NEW YORK STATE DEPT. OF LAW, 300 MOTOR PARKWAY, STE 230, HAUPPAUGE, NY 11788
DEFTS' ATTORNEYS: LIPPES MATHIAS WEXLER FRIEDMAN, Limited appearance for Tribal Council Trustees, Defendants
50 FOUNTAIN PLAZA, STE 1700, BUFFALO, NY 14202, BYRNES, O'HERN & HEUGLE LLC, Attorneys for defendants Larry Clark, Outdoor, Inc., Idon Media, Digital Outdoors Advertising, LLC, and Idon Media LLC, 28 LEROY PLACE, REDBANK, NJ 07701
Upon reading and filing of the following papers in this matter: (1) Order to Show Cause by plaintiffs (mot. seq. #006), signed May 24, 2019, by the Hon. Cheryl A. Joseph, and supporting papers; (2) Affirmation in Opposition to Order to Show Cause by defendants Larry Clark, Outdoor, Inc., Idon Media, Digital Outdoor Advertising, LLC, and Idon Media LLC. (mot. seq. #006), filed June 6, 2019, and supporting papers; (3) Reply Affirmation in Support of Order to Show Cause by plaintiffs (mot. seq. #006), filed June 12, 2019, and supporting papers; (4) Notice of Motion by defendants Bryan A. Polite, Launcelot A. Gumbs, Seneca Bowen, Daniel Collins Sr., Germain Smith, Donald Williams Jr., and Linda Franklin ("the Tribal Trustee Defendants") (mot. seq. #002), filed June 10, 2019, and supporting papers; (5) Notice of Motion by plaintiffs (mot. seq. #003), filed June 10, 2019, and supporting papers; (6) Notice of Motion by defendants Larry Clark, Outdoor, Inc., Idon Media, Digital Outdoor Advertising, LLC, and Idon Media LLC. (mot. seq. #004), filed June 10, 2019, and supporting papers; (7) Affirmation in Opposition by plaintiffs (mot. seq. #002 and #004), filed June 21, 2019, and supporting papers; (8) Reply Affirmation by Tribal Trustee Defendants (mot. seq. #002), filed June 25, 2019, and supporting papers; (9) Reply Affirmation by defendants Larry Clark, Outdoor, Inc., Idon Media, Digital Outdoor Advertising, LLC, and Idon Media LLC. (mot. seq. #004), filed June 25, 2019, and supporting papers; and (10) Oral Arguments having been held on June 14, 2019, and June 27, 2019; it is
ORDERED that the motions #002, #003, #004 and #006 are consolidated for determination; and it is further
ORDERED that motions #002 and #004 and #006 are denied; and it is further
ORDERED that motion #006 is denied conditionally; and it is further
ORDERED that motion #003 is referred to a conference before the court to be conducted on June 1, 2020 at noon, such conference to be conducted virtually.
This is an action brought by the State of New York and the Commissioner of the State's Department of Transportation (the "Transportation Commissioner") to enjoin the construction and operation of two sixty-foot tall electronic billboards — styled "monuments" by the defendants — on opposite sides of the State's declared and recorded right of way for Route 27, Sunrise Highway, where it bisects a tract, or tracts, of land indisputably long owned and occupied by the Shinnecock Indian Nation (the "Nation") in the Town of Southampton. The amended complaint names, in addition to the original, individual defendants, who are alleged to be officials and Trustees of the Shinnecock Indian Nation, the alleged commercial partners of the Nation in the design, construction, installation and operation of the billboards or participants in other aspects of the project.
Although it was not until 2010 that the Shinnecock Indian Nation received formal recognition by the United States Bureau of Indian Affairs (the "BIA"), it has been a recognized, sovereign Indian tribe in New York State since colonial times, a status that is, among other places, codified in Article 9 of the Indian Law. The matter is principally before the court on the plaintiffs' motion for a preliminary injunction enjoining the completion, maintenance and operation of the monuments, or billboards, and on the defendants' motions to dismiss the action for failure to join an indispensable party and, with respect to those defendants who are trustees of the Nation, on the ground that they are clothed with the same sovereign immunity as the Nation itself. Also, the one non-tribal individual defendant, Larry Clark, and the defendant entities with which he is affiliated — Idon Media LLC ("Idon") and Digital Outdoor Advertising LLC ("Digital Outdoor") — in addition to joining in the other defendants' motion to dismiss the amended complaint for failure to join an indispensable party and as barred by the Nation's sovereign immunity — also seek dismissal of the claims against them on the ground that Idon, Outdoor Digital and Mr. Clark individually have no involvement in the project. In addition, plaintiffs seek the imposition of contempt sanctions against the defendants for completing the construction of the signs and operating them notwithstanding the previously entered temporary restraining order.
The plaintiff's motion for a preliminary injunction proceeds from its contention that the billboards have been erected on non-reservation land adjoining a state-owned right-of-away — acquired by the State through uncontested condemnation in 1959 — without required permits and engineering and environmental approvals and are, in any event, too close to the adjoining roadway, the defendants' from their contentions that the Nation is an indispensable party to the action because it is the owner and operator of the billboards, "any judgment on the merits in this action will inequitably affect the Nation and its interests," that the billboards are on land owned by the Nation and therefore are beyond the reach of state regulation, and that those defendants who are officials of the Nation enjoy the same sovereign immunity as the Nation itself. This action thus poses the related, but not identical, questions of whether structures erected and operated on land owned potentially ex-reservation by a sovereign Indian nation but located within the right of way of a State highway are subject to State regulation and, if so, under what circumstances and by what means, if any, the State can enforce those regulations through proceedings brought in New York State Supreme Court against the Nation's elected trustees and its commercial partners.
Note that in contrast to the circumstance that confronted the United States Supreme Court in City of Sherrill, NY v. Oneida Indian Nation of New York , 544 US 197, 203, 125 S Ct 1478, 1483, 161 L Ed 2d 386 [2005] ("City of Sherrill "), this case does not raise the specter of a wildly-belated "land grab" that would be disruptive of the settled expectations of state and local governments and of hundreds of thousands of individuals. Here, not only is it undisputed that the Nation owns the land in question (compare Shinnecock Indian Nation v. New York , 05-CV-2887 TCP, 2006 WL 3501099 [EDNY Nov. 28, 2006], affd, 628 Fed Appx 54 [2d Cir 2015], cert. denied , 136 S.Ct. 2512 [June 27, 2016] ), but there is no doubt that the Nation has owned it for many decades, if not centuries, predating most, if not all, significant development in the area and that it is the only remaining part of their once-extensive demesne that touches the Peconic Bay side of Long Island. Whether the Nation's title to the land is, or can be deemed, "aboriginal," that is, originating before systematic European colonization of the area began in the seventeenth century, and continuing thereafter without relinquishment is, however, disputed by the plaintiffs, who claim that the Nation currently is merely a fee owner of the property; that the parcels, although characterized on Suffolk County tax maps as "Shinnecock Indian Reservation," are not part of any recognized or recognizable Indian reservation; and that neither the occupation nor the ownership of the land by the Nation has been continuous during any relevant historical period.
Sovereign immunity and claimed failure to join a necessary party. The tribal and commercial defendants have moved to dismiss the complaint on several grounds, including what they contend is both the necessity and the impossibility of joining the Nation as a party defendant in this action, and the asserted immunity of the individually named tribal defendants and of those who have contracted with the Nation from both this court's jurisdiction and from the claims that the plaintiff has asserted against them. Settled law, however, establishes none of these grounds has merit.
Although the defendants named by the State and the Transportation Commissioner in their complaint and amended complaint include the officials and members of the Council of Trustees of the Shinnecock Indian Nation, the Nation itself, which enjoys sovereign immunity (see Sue/Perior Concrete & Paving, Inc. v. Lewiston Golf Course Corp. , 24 NY3d 538, 546 [2014] ()), has not been named as a defendant. CPLR 1001 (b) provides five factors for courts to consider in deciding whether to dismiss an action where, as here, "jurisdiction over [the necessary party] can be obtained only by his consent or appearance":
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