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Seneca back at Second Circuit to renegotiate thruway easement

New York state was ruled immune long ago in a dispute that turns 30 next year, but the Seneca Nation mapped out a new route for it to dip into the revenue stream from a highway that cuts through tribal land.

MANHATTAN (CN) — The Second Circuit heard arguments, not for the first time Thursday, on an easement granted back in 1954 that allowed a 3-mile stretch of the nearly 570-mile New York State Thruway to run through the Seneca Nation.

As part of the deal, the tribe had sold some 300 acres of the Cattaraugus Reservation to New York for $75,000. Since 1993, however, it has been fighting to invalidate that easement, citing several issues with the negotiation in the ‘50s, including that it were represented by a state-appointed attorney and that the easement was never federally ratified.

The first decade of litigation ended with the Second Circuit ruling in 2004 that New York state has sovereign immunity from the tribe's claims. Taking another tack, the Seneca sued again in 2018 — this time naming various state officials, including the governor, the state attorney general and the transportation commissioner, as defendants .

New York is seeking another Second Circuit break after a federal judge ruled that the state officials were allowed to be sued in their official capacities, given the U.S. Supreme Court precedent in Ex parte Young.

At arguments in Manhattan on Thursday, the Seneca's attorney James Tysse pointed the panel to the Treaty of Canandaigua of 1754, in which the U.S. recognized Seneca as the owners of the land and guaranteed them free use and enjoyment of the land.

Asking the court to force the hands of the officials to get a valid easement, Tysse suggested that the state would not be in violation of the treaty with the right records in place.

“We want an injunction for the state officers to obtain a valid easement over the property, then our free use of the land would no longer be disturbed,” Tysse said.

U.S. Circuit Judge John Walker Jr. questioned this logic, saying nothing in the treaty stopped the Seneca from selling land as easements, as happened in 1954.

The Akin Gump attorney agreed but said cars driving through the land and the state collecting tolls do not allow for free use and enjoyment of the land.

Walker interrupted.

“You’re not saying they shouldn’t do that, you’re just saying they should pay for it,” said Walker, a George H.W. Bush appointee. “You’re just asking for a do-over.”

Beezly Kiernan, who represents the state officials, asked what any of this has to do with the individuals named as defendants. “The wrong is tied to the state's violation,” said Kiernan. “There is no violation by these state officers right now.”

Kieran used rebuttal time to hammer home the point that the 1954 easement is valid and the state officials cannot be sued.

According to the most recent data, the New York State Thruway has collected over $69 million in tolls in September 2021.

Neither Kieran or Tysse immediately respond to email seeking comment.

The panel was round out by U.S. Circuit Judges Amalya Kearse, a Carter appointee, and Richard Sullivan, a Trump appointee.

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