Tribal Challenge to Thruway Put on Chopping Block

Traffic crosses the completed span of the new Gov. Mario M. Cuomo Bridge in Tarrytown, N.Y., on Oct. 7, 2017. A petition with 75,000 signatures on change.org seeks to keep the familiar old name for the span north of New York City, the Tappan Zee. The north span carries the northbound and westbound automobile traffic of the New York State Thruway, I-87 and I-287. (AP Photo/Julie Jacobson, File)

(CN) – A federal magistrate recommended defeat Wednesday for a bid by the Seneca Nation to share in the tolls collected on the New York State Thruway.

A highway system that stretches from the New York City limit to the Pennsylvania state line, the New York Thruway owes about 3 miles of its nearly 570-mile span to the largest of the six nations that comprised the Iroquois Confederacy.

In 1954, the Seneca granted New York roughly 300 acres of its Cattaraugus Reservation as a permanent easement for $75,000. The Seneca have been seeking to invalidate that easement since at least 1993, however, claiming to have been bamboozled by hard-negotiating state officials.

U.S. Magistrate Judge Hugh Scott voiced some credence for the claim Wednesday but nevertheless primed the Seneca’s case for defeat in an 18-page report.

“For all that the court knows, the state of New York very well might have pressured the Seneca Nation into a procedurally improper and grossly unfair easement back in 1954,” the Rochester-based Scott wrote. “Fourteen yeas ago, however, the Second Circuit definitively resolved issues that make further litigation here impossible.”

The Second Circuit had ruled against Seneca’s original challenge in 2004. In the new suit, filed this past April in New York’s Western District, the Seneca made a critical change. Seeking to dodge the sovereign-immunity issue that doomed its 1993 effort, this time the tribe excluded New York state from the list of defendants.

Again making the claim that the 1954 easement was invalid and must be renegotiated, the Seneca claimed that it was represented in the thruway negotiations by a state-appointed attorney who had little knowledge of federal law protecting Native American rights.

Alleging that state officials later bragged about how they “hammered down” the tribe’s demands to the one-time $75,000 payment, the Seneca said no federal official was present when the easement was signed, nor was there even a “professional independent appraisal” of the easement’s value.

Attorneys for the state moved to dismiss in June, claiming the tribe “had full opportunity to argue its points regarding the legitimacy of the thruway easement and proper remedies when it brought suit twenty-three years ago, and lost.”

While U.S. District Judge Lawrence Vilardo will ultimately decide the case’s fate, Magistrate Scott advised Wednesday that the Seneca’s claims are doomed by precedent.

As for the tribe’s effort to exclude the state from the suit, Scott noted that New York is both an indispensable party to the litigation and also protected by sovereign immunity.

Scott highlighted four points resolved in the Second Circuit opinion: that the easement exists and is at least facially valid; the easement is owned by New York state; the state must be a party in any lawsuit challenging the easement; and that the state is protected by sovereign immunity since the United States has not been asked to intervene.

“There is no violation to address, and there is nothing to order state officials to do, without first negating one or more of [those] points,” Scott wrote.

Brian Carney, an attorney for the tribe with the firm Akin Gump, has not returned an email seeking comment.

Seneca Nation, which has three reservations in New York state, has had other legal squabbles with the state recently.

Arbitration began earlier this month between the parties over a 2002 gaming compact, which specifies how much money the tribe must pay the state from gambling proceeds.

The tribe has claimed the revenue-sharing compact, which grants the tribe gaming exclusivity in the state, required payments only through the agreement’s first 14 years. New York officials have stated the compact requires payments through its expiration in 2023.

Arbitration in that case is expected to end today.

In the thruway case, the tribe sought an injunction that would prevent the state from collecting tolls on the disputed portion, as well as pro rata compensation for future use of those lands.

The New York State Thruway netted more than $42 million in tolls throughout the state in September 2018, the most recent data available.

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