Matter of Concern Inc. v Pataki
Annotate this CaseDecided on May 25, 2005
Supreme Court, Erie County
In the Matter of Concern, Inc., Joyce Bochman, Eileen Almasi, Marliese Kothe, and Carl Paladino, Petitioners,
against
George E. Pataki, in his official capacity as Governor of the State of New York; State Gaming Officials of the New York State Wagering Board; Town of Cheektowaga; Town Board of the Town of Cheektowaga; Dennis T. Gabryszak, in His Official Capacity as Supervisor of the Town of Cheektowaga; and The Uniland Partnership L.P., n/k/a the Uniland Partnership of Delaware L.P., d/b/a Uniland Development Company, Respondents.
2004-5014
Phillips Lytle LLP
Michael B. Powers, Esq.
Adam Walters, Esq.
One HSBC Center, Suite 3400
Buffalo, New York 14203-2887
Attorneys for Petitioners
Eliot Spitzer
Attorney General of the State of New York
Timothy Hoffman, Esq., Assistant Attorney General
107 Delaware Avenue, Fourth Floor
Buffalo, New York 14202
Attorneys for Respondents Governor George E. Pataki and
State Gaming Officials of the New York State Wagering Board
Michael J. Stachowski, Esq. Town Hall, 3301 Broadway
Cheektowaga, New York 14227
Attorney for Respondents Town of Cheektowaga, Town Board of the
Town of Cheektowaga, and Dennis G. Gabryszak
Parrino, Cooper & Dobson
Arthur F. Dobson, Jr., Esq. and Robert W. Michalak, Esq.
6225 Sheridan Drive, Suite 100
Williamsville, New York 14221
Attorneys for Respondent Uniland Partnership, L.P.
n/k/a the Uniland Partnership of Delaware L.P.
d/b/a Uniland Development Company
Joseph G. Makowski, J.
Since 1972, New York has lead the nation in recognizing that the actions of government can damage the environment. With the passage of the Environmental Conservation Law, the Legislature established as a priority the preservation of the environment for the health, safety and enjoyment of New York State residents. One article of that Law, titled the State Environmental Quality Review Act (or SEQRA) requires that the State, its agencies and its subdivisions serve as protectors of the environment by mandating that, when approving any action or funding any project that might have a significant effect on the environment, these state and municipal actors must consider those impacts in addition to other social and economic policies (see Environmental Conservation Law § 8-0103 [7]). The primary issue raised by the Petitioners in this proceeding is whether that mandate to consider environmental factors was recognized during the Nation-State compacting process between the Governor of the State of New York and the Seneca Nation of Indians. That process, in 2002, resulted in a Compact authorizing the Seneca Nation to open a casino in Erie County. On the record before the Court, no environmental review of the planned Eric County casino has been performed by any entity. The Court here determines that no further approvals, planning or construction of a casino on the Town of Cheektowaga property at issue may proceed until a draft environmental impact statement is prepared as required under the law.
PROCEDURAL HISTORY
Petitioners Concern, Inc., Joyce Bochman, Eileen Almasi, Marliese Kothe, and Carl Paladino filed a Verified Petition along with an order to show cause seeking a temporary restraining order, a preliminary injunction and a judgment pursuant to CPLR article 78 requiring Respondents George E. Pataki, in his Official Capacity as Governor of the State of New York; the State Gaming Officials of the New York State Wagering Board; the Town of Cheektowaga; and Town Board of the Town of Cheektowaga to comply with their statutory duties under the State Environmental Quality Review Act (SEQRA), Article 14 of the New York Parks, [*2]Recreation and Historic Preservation Law (PRHPL), and Article 5 of the Town Law. Petitioners also sought to enjoin Respondent Uniland Partnership L.P. n/k/a the Uniland Partnership of Delaware L.P. d/b/a Uniland Development Company (Uniland) from transferring certain property in the Town to the Seneca Nation of Indians (Seneca Nation) or its designee until the other Respondents had complied with SEQRA, PRHPL and the Town Law.
After deliberation, the Court granted the order to show cause with a temporary restraining order (TRO), on or about May 24, 2004, which, pending a hearing on the Verified Petition, restrained the State from taking any action in furtherance of, or which relates to, the acquisition and transfer of certain property in the Town (hereinafter the Cheektowaga Property) to the Seneca Nation for the establishment of a casino and related facilities thereon; restrained the Town, the Town Board, and their agents, including Supervisor Gabryszak, from taking any action in furtherance of, or which relates to, the acquisition and transfer of the Cheektowaga Property to the Seneca Nation for the establishment of a casino and related facilities thereon; and restrained Uniland from transferring the Cheektowaga Property to the Seneca Nation or to any entity or person acting as a representative of, or on behalf of, the Seneca Nation (see Order to Show Cause and TRO, granted May 24, 2004, at 2-3). The Court also ordered the Town to produce, at the time of service of its answer, records in its possession pertaining to the location of a casino by the Seneca Nation in the Western New York area (see id. at 3).
RELATED CASE
After the filing of the petition and issuance of the TRO, the Court issued a decision in a related case, Huron Group, Inc., the City of Buffalo, Anthony Masiello Individually and as Mayor of the City of Buffalo, and Carl P. Paladino v George E. Pataki, Governor of the State of NewYork, the State of New York, Town of Cheektowaga, and Uniland Partnership, L.P.
n/k/a the Uniland Partnership of Delaware L.P. d/b/a Uniland Development Company [Index No. 2004-4425], 5 Misc 3d 648 [Sup Ct Erie County June 16, 2004] [hereinafter Huron Group v Pataki]). In that case, the petitioners challenged on State constitutional grounds the terms of a Nation-State Gaming Compact entered into between the Governor and the Seneca Nation on August 18, 2002, to the extent that that Compact permitted the Seneca Nation to locate a Class III gaming facility in Erie County anywhere outside of the City of Buffalo (see Huron Group v Pataki, 5 Misc 3d at 650-652). In connection with that action, the parties had negotiated a stand-still agreement, memorialized in a stipulation and order entered under seal on May 5, 2004.
In its decision on June 16, 2004, the Court issued declaratory relief and restrained the respondents in Huron Group v Pataki from proceeding with the development of a Class III gaming casino in the Town or in any other location in Erie County outside of the City of Buffalo (see Huron Group v Pataki, 5 Misc 3rd at 688-690).
Immediately after the issuance of the abovementioned decision in Huron Group v Pataki, the State requested an adjournment of the instant matter in order to respond to the changes in circumstances. Thereafter, the matter was adjourned several times at the request of the parties' counsel. An agreement was made in September 2004 to adjourn the matter generally pending the disposition of the appeal in Huron Group v Pataki. Thereafter, the matter was again set down for oral argument by the Court on its own motion, on December 20, 2004. All parties appeared by counsel. The Court took all matters under advisement at that time.
[*3]PAPERS FILED
In support of the Verified Petition, Petitioners submitted the affidavits of Timothy Sherry, sworn to on May 20, 2004; Marliese Kothe, sworn to on May 20, 2004; and Joyce Bochmann, sworn to on May 20, 2004.
In response to the Verified Petition, Respondents Governor George Pataki and State Gaming Officials of the New York State Wagering Board (hereinafter State) filed a verified answer with defenses and objections in point of law and a motion pursuant to CPLR 2221(a) to modify the TRO to delete the restraint against the State Respondents. In support of the motion, the State filed the affirmation of Robert T. Williams, Esq., dated June 3, 2004, and a memorandum of law. In opposition to the petition, the State filed the affirmation of Peter B. Sullivan, Esq., dated July 9, 2004, with Exhibit A, and a memorandum of law.
Uniland filed a Verified Answer with a counterclaim and a cross-order to show cause seeking to vacate the TRO, deny the preliminary injunction or require Petitioners to post an undertaking in the minimum amount of $12,328,500.00. In support thereof, Uniland filed the affidavit of Carl J. Montante, sworn to on June 3, 2004, with Exhibit A; the affidavit of Brian T. Cook, sworn to on June 3, 2004, with Exhibits 1 and 2; and a memorandum of law (hereinafter Uniland's Memo No. 1). Thereafter, Uniland filed a cross-motion to dismiss and/or for summary judgment dismissing the petition. In support, Uniland filed the affidavit of Carl J. Montante, sworn to on June 16, 2004, with Exhibits A through C (Exhibit B being a freestanding document); the affidavit of Brian T. Cook, sworn to on June 16, 2004, with Exhibits 1 and 2; an affidavit of Arthur F. Dobson, Jr., Esq., sworn to on August 3, 2004, with Exhibit 1; a supplemental affidavit of Arthur F. Dobson, Jr., Esq., sworn to on November 8, 2004; and, a memorandum of law (hereinafter Uniland's Memo # 2).
The Town submitted a Verified Answer and a memorandum of law.
In response, Petitioners submitted a reply to Uniland's Counterclaim (with Exhibit A); a notice of motion pursuant to CPLR 3212 (h) to dismiss that counterclaim and pursuant to Civil Rights Law §§70-a and 76-a for an award of costs and attorneys' fees; an affidavit of Adam S. Walters, Esq., sworn to on July 26, 2004, with Exhibits A through G; and eight separate memoranda of law.[FN1]
The Court grants the petition with regard to Petitioners' request for an order requiring the [*4]State Respondents to comply with the State Environmental Quality Review Act, but the petition is otherwise denied. The Court grants a permanent injunction against Respondents as detailed at the end of this Memorandum Decision and Order. The Court denies Uniland's motion to dismiss and/or for summary judgment, and grants Petitioners' cross motion to dismiss Uniland's counterclaim for tortious interference with business relations, but denies Petitioners' request for attorneys' fees and costs, as the costs and fees associated with the counterclaim are a small part of their total effort.
BACKGROUND
A. Parties
Petitioner Concern Inc. (Concern) is a not-for profit corporation organized for the purposes, inter alia, of opposing the establishment of a gambling casino complex in the Towns of Cheektowaga, Depew, Bowmansville, or Lancaster (see Verified Petition ¶ 5). Concern has approximately 5,000 supporters (id.). Petitioner Carl Paladino is alleged to own real property on Genesee Street in close proximity to the Cheektowaga Property (id. ¶ 9). The remaining individual Petitioners reside in the Town, allegedly in close proximity to the Cheektowaga Property (id. ¶¶6-8).
The State respondents consist of the Governor, who executed the Compact; and the State Gaming Officials of the State Wagering Board (see Verified Petition Exhibit C at ¶ 1 [bb]). Respondent State Gaming Officials of the New York State Wagering Board (hereinafter SGOs) are defined in the Compact as the officials designated by the State "to fulfill the State's responsibility to ensure Nation Gaming Operation and [Seneca Gaming Authority] compliance with the terms of th[e] Compact" (Verified Petition Exhibit C at [1] [bb]).[FN2]
The Town of Cheektowaga (Town), through the Town Board, and with the support of Dennis T. Gabryszak, Supervisor of the Town (the Supervisor), passed a resolution engaging the
Town to support the Seneca Nation in locating a Class III gaming facility within the Town's borders (Verified Petition ¶ 28).
Finally, Uniland is the current owner of 57± acres of land near the Buffalo Niagara International Airport and located in the Town. Uniland has entered into a non-binding letter of intent and/or a memorandum of understanding with the Seneca Nation for the development of a casino and related facilities on that property (the Cheektowaga Property).
The Seneca Nation is not a party to the action, nor has it sought to intervene.
B. Statutory Background
The Indian Gaming Regulatory Act of 1988 (P.L. 100-497; 25 USC §§2701 et seq. and 18 U.S.C. §§1166-1168) (hereafter IGRA) was enacted following the United States Supreme Court's decision in California v Cabazon Band of Mission Indians (480 US 202 [1987]; see generally S. Rep. No. 100-446, 100th Cong., 2d Sess., reprinted in 1988 US Code Cong & Admin News, at 3071), a case concerning the regulation by the State of California of bingo games conducted by [*5]Native American tribes on reservation land. In that case, the Supreme Court concluded that California's interest in preventing the infiltration of the tribal bingo operation by organized crime did not justify regulation of those operations "in light of the compelling federal and tribal interests supporting them," and further concluded that State regulation "would impermissibly infringe on tribal government" (Cabazon, 480 US at 221-222).
Initially, the Supreme Court stated that "Indian tribes retain 'attributes of sovereignty over both their members and their territory' * * * and that 'tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States'" (Cabazon, 480 US at 207 [citations omitted]). The Court went on to state:
Decision in this case turns on whether state authority is pre-empted by the operation of federal law; and "[s]tate jurisdiction is pre-empted * * * if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority." * * * The inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its "overriding goal" of encouraging tribal self-sufficiency and economic development
(California v Cabazon Band of Mission Indians, 480 US at 216 [internal citations omitted]).
Congress thereafter took action, producing IGRA. The United States Senate in its report accompanying the legislation, stated:
* * * [I]n the final analysis, it is the responsibility of the Congress, consistent with its plenary power over Indian affairs, to balance competing policy interests and to adjust, where appropriate, the jurisdictional framework for regulation of gaming on Indian lands. [This legislation] recognizes primary tribal jurisdiction over bingo and card parlor operations although oversight and certain other powers are vested in a federally established National Indian Gaming Commission. For class III casino, parimutuel and slot machine gaming, the bill authorizes tribal governments and State governments to enter into tribal-State compacts to address regulatory and jurisdictional issues
(S. Rep. 100-446, 1988 US Code Cong & Admin News 3073). The National Indian Gaming Commission maintains only an "oversight" role with respect to Class III gaming under IGRA (see S. Rep. 100-446, 1988 US Code Cong & Admin News 3071).
The Third Department, in its recent decision of Dalton v Pataki (11 AD3d 62 [2004], affirmed as modified by __ NY2d __ [May 3, 2005]), upholding the legislative power to permit Class III gaming on Indian lands in New York State notwithstanding New York Constitution article I, § 9, stated:
[W]hile IGRA "preempt[s] the field in the governance of gaming activities on Indian lands" (S. Rep. No. 100-446, 100th Cong., 2d Sess., at 6; * * *) it also gives states, through the tribal-state compacting process, a power withheld from them by the U.S. Constitution i.e., "some measure of authority over gaming on Indian lands" (Seminole Tribe of Fla. v Florida, 517 US 44, 58 [1996])[*6]
(Dalton v Pataki, 11 AD3d at 76-77).
Under IGRA, a Tribal-State compact may include provisions relating to (i) the application of directly related criminal and civil laws and regulations of the Tribe and the State; (ii) the allocation of jurisdiction between the State and the Tribe to enforce such laws; (iii) State assessments to defray the costs of regulating gaming; (iv) taxation by the Tribe; (v) remedies for breach of contract; (vi) standards of operation and maintenance of gaming facilities; and (vii) "any other subjects that are directly related to the operation of gaming activities" (25 USC § 2710 [d] [3] [C]).
C. Factual Background
On June 20, 2001, the Governor and the Seneca Nation entered into a Memorandum of Understanding (MOU) which established certain terms intended to be included in a Tribal-State Compact authorizing the development of three (3) Class III gaming casinos by the Seneca Nation on Indian lands in the State of New York. Thereafter, in August 2001, the New York State Legislature enacted legislation enabling the establishment and operation of the casinos by the Seneca Nation (see L. 2001, c. 383, pt B, § 2, now Executive Law § 12). Executive Law § 12 authorizes the Governor to execute a Tribal-State Compact with the Seneca Nation that is "consistent with" the June 20, 2001 MOU (see Executive Law § 12 [a]).
L.2001, c. 383, pt. B, § 1 states the legislative intent behind Executive Law § 12. That section states in part:
* * * [T]he legislature finds that gaming should be conducted in a manner which adequately protects the environment and the public health and safety, which is a stated requirement for the conduct of class III gaming activities pursuant to the Indian Gaming Regulatory Act.
(L. 2001, c 383, pt B, § 1 [emphasis supplied]).
IGRA also contains language about protection of the environment, e.g.:
(2) The Chairman [of the National Indian Gaming Commission] shall approve any tribal ordinance or resolution concerning the conduct, or regulation of class II gaming on the Indian lands within the tribe's jurisdiction if such ordinance or resolution provides that
* * *
(E) the construction and maintenance of the gaming facility, and the operation of that gaming is conducted in a manner which adequately protects the environment and the public health and safety
(25 USC § 2710 [b] [2] [E]. This provision applies also to Class III gaming.[FN3]
[*7]
In addition, regulations promulgated pursuant to IGRA require that a Class III gaming ordinance, to be approved by the Chairman of the National Indian Gaming Commission, must provide that a Tribe "shall construct, maintain and operate a gaming facility in a manner that adequately protects the environment and the public health and safety" (25 CFR 522.4 [b] [7], incorporated into 25 CFR 522.6 [b]). On August 18, 2002, the Governor and the Seneca Nation entered into the Nation-State Gaming Compact (the Compact) authorized by the New York State Legislature in Executive Law § 12 (see Verified Petition Exhibit C [without appendices]). On the same date, the Governor certified to legislative officials and to the New York Secretary of State that certain provisions relating to collective bargaining, the recognition of unions by Class III gaming casinos authorized by the Compact, and the securing of liability insurance by such casinos were to be enacted by the Compact or other agreement, resolution or law, as required by Executive Law § 12 (a).[FN4]
Paragraph 11 of the Compact involves "Sites for Gaming Facilities". That paragraph provides in pertinent part:
(a) Subject to the provisions of this paragraph 11, the Nation may establish Gaming Facilities:(1)in Niagara County, * * *; and(2)in Erie County, at a location in the City of Buffalo to be determined by the Nation, or at such other site as may be determined by the Nation in the event a site in the City of Buffalo is rejected by the Nation for any reason; * * * and[*8](3)on current Nation reservation territory, at such time and at such location as may be determined by the Nation.(b) With respect to the sites referenced in subparagraphs 11(a)(1) and 11(a)(2):* * *(3)The State shall support the Nation in its use of the procedure set forth in the Seneca Nation Settlement Act, 25 U.S.C. § 1774f(c), to acquire restricted fee status for the site described in Appendix I and any other site chosen by the Nation pursuant to Paragraphs 11(a) (1) and 11 (a) (2), to which the State has agreed, such agreement not to be unreasonably withheld. For purposes of such support from the State, the State shall assist the Nation directly with the Department of the Interior, either in writing or in person, as the Parties deem appropriate and necessary to obtain expeditious action on the Nation's notifications under section 1774f(c) of the Seneca Settlement Act and on any other application made by the Nation to obtain requisite approvals.(4)The Nation agrees that it will use all but five million dollars ($5,000,000.00) of the funds remaining from amounts appropriated by the [Settlement Act] to acquire the parcels in the City of Niagara Falls and the City of Buffalo
(Compact ¶ 11 [a] [1] - [3]; [b] [3], [4] [emphasis supplied]).
By way of background, under the Seneca Nation Settlement Act of 1990 (Settlement Act) (25 USC §§1774-1774f), the State paid Sixteen Million Dollars ($16,000,000.00) in cash to settle claims concerning leases of Seneca Nation land in Salamanca in Cattaraugus County, New York (see 25 USC §§ 1774, 1774d [c]). If the Seneca Nation uses these funds, and an additional Thirty Million Dollars ($30,000,000.00) contributed by the Federal government, to purchase land "within its aboriginal area in the State or situated within or near proximity to former reservation land", such lands shall, absent a contrary determination by the United States Secretary of the Interior (the Secretary), be held in restricted fee status by the Seneca Nation (see 25 USC § 1774f [c]). The Seneca Nation may build a Class III gaming facility on the land so purchased and held, if the Secretary determines that the lands so acquired are "in settlement of a land claim" (see 25 USC § 2719 [b] [1] [B] [i]). As noted infra, the Secretary already has so determined.
In any event, a duly authorized compact does not go into effect until the Secretary approves or fails to disapprove it (see 25 USC § 2710 [d] [3] [B], [d] [8]). The Secretary may disapprove a compact only if it violates the IGRA, other provisions of Federal law, or the trust obligations of the United States to the Indians (see 25 USC § 2710 [d] [8] [B]). Upon such approval or failure to disapprove, the Compact goes into effect when it is published in the Federal Register (see id. 2710 [d] [3] [B], [d] [8] [C] - [D]).
The instant Compact was submitted to the current Secretary of the Interior Gale A. Norton for her review in September 2002 (see Huron Group v Pataki, 5 Misc 3d at 658). The Secretary determined, and memorialized in a letter dated November 12, 2002 and addressed to [*9]the Governor and the President of the Seneca Nation (hereinafter the Secretary's Letter), to neither approve nor disapprove the Compact; rather, the Secretary permitted the Compact to take effect without action (see Huron Group v Pataki, 5 Misc 3d at 658). Under those circumstances, the Compact is considered to have been approved, "but only to the extent the compact is consistent with [IGRA]" (25 USC § 2710 [d] [8] [C]).
The Secretary's Letter, as quoted in Huron Group v Pataki, states in part:
According to the economic analysis provided by the [Seneca] Nation, the total revenues currently anticipated from the gaming operations over the term of the Compact, exceed five billion dollars, of which the State would receive less than one billion dollars, and a portion of those State funds would go to local governments. The Nation estimates its anticipated return after all expenses to significantly exceed two billion dollars over the fourteen-year term of the Compact
(id. at 659). The Secretary also determined that the parcels of land to be acquired by the Seneca Nation under the Compact and the Settlement Act "will be exempt from the prohibition on gaming" on lands acquired after 1988 (see 25 USC § 2719 [a]), "because they are lands acquired as part of the settlement of a land claim, and thus fall within the exception in 25 USC § 2719 (b) (1) (B) (i)" (Huron Group v Pataki, 5 Misc 3d at 659 ).[FN5]
Since execution of the Compact, the Seneca Nation has opened a casino in Niagara Falls (see Verified Petition ¶ 27) and one on the reservation in Salamanca. Although the Seneca Nation conducted negotiations with City of Buffalo officials with respect to locating a casino within the City limits, Petitioners allege that Cheektowaga encouraged the Seneca Nation to turn its sights to the Town (see Verified Petition ¶ 28). In July 2003, the Town Board passed a resolution to support the Seneca Nation "in its designation of the Town of Cheektowaga as its choice for the site of a gaming casino" (Verified Petition ¶ 28 & Exhibit E). Further, according to Uniland's Verified Answer, Uniland entered into a memorandum of understanding with the Seneca Gaming Corporation with respect to the sale of the Cheektowaga Property (see Uniland's Verified Answer ¶ 17).
In connection with a bond offering by the Seneca Gaming Corporation, the Seneca Gaming Authority issued an offering memorandum, which stated in part:
On April 9, 2004, we entered into a non-binding letter of intent with Uniland * * *, to purchase approximately 57.1 acres of property near the Buffalo-Niagara International Airport in Cheektowaga * * *. The letter of intent provides that our obligation to purchase this property will be subject to our satisfaction with the condition of the title, our ability to enter into a definitive purchase agreement, the failure of any relevant taxing jurisdiction to object to the property being placed in restricted fee for gaming by the U.S. Department of the Interior and Uniland's [*10]ability to enter into an agreement with the Town of Cheektowaga for various make whole benefits for Uniland. The purchase price for this property will be $15.0 million. In addition, we have agreed to retain Uniland as the construction manager for the construction of the Seneca Erie Casino at an overhead and profit fee of 3.5% for the first $75.0 million of construction costs at the Cheektowaga site
(Verified Petition Exhibit F at 71). Thereafter, as alleged by the Verified Petition, the Legislative Council of the Seneca Nation voted unanimously to approve the purchase of the Cheektowaga Property for the purpose of establishing a casino for gaming operations and related facilities (hereinafter referred to as the Project) (see Verified Petition ¶ 33).
Petitioners allege that the Cheektowaga Property lies only a few hundred feet east of the Buffalo Niagara International Airport (the Airport), with frontage on Holtz Road and Genesee Street (see Verified Petition ¶36). Petitioners admit that limited information is available about the actual scope of the plans for the Cheektowaga Property (see id. ¶ 37). However, they further allege that the publicly announced plans of the Seneca Nation for the Project call for construction of a casino open 24 hours per day and covering 185,000 square feet, with 4,000 slot machines and 100 gaming tables, at an estimated cost of $100,000,000.00, along with a 250-room hotel, a parking garage, and a corporate headquarters building for the Seneca Nation (see Verified Petition ¶¶ 38, 44). Construction may include residential housing for members of the Seneca Nation (id. ¶ 38). As a result, children of Native Americans living and working at the site may be sent to the Lancaster school district, although the transfer of the site to the Seneca Nation would remove it from the tax rolls; the School District "will receive no financial revenues under the Compact" (Pet. Memo #1 at 8). According to Petitioners, the casino may attract more than 400,000 visitors per month with resulting traffic impacts, as it will be larger than the Niagara Falls casino, which currently attracts that number of visitors (see id. ¶¶ 44, 47-48). In addition, Petitioners allege that the casino will significantly change the character of the community.
Ellicott Creek runs along the northern and eastern borders of much of the site. Petitioners allege that the site is currently "largely undisturbed by prior development" and likely contains archeological artifacts (being near the creek bed) (id. ¶¶41-49). Further, the Pfohl landfill, a Superfund site, is also nearby (see Pet. Memo # 1 at 8).
Uniland participated in a process pursuant to Environmental Conservation Law (ECL) article 8, or SEQRA, in the late 1990s in connection with its improvements on the Cheektowaga Property (see Montante Affid., sworn to on June 3, 2004, ¶ 6 and Exhibit B). At the time, the property was unimproved. An environmental assessment form (EAF) was prepared, including a Cultural Resource Investigation and two engineering reports, with the plan of developing approximately 600,000 square feet of warehouse/office/light manufacturing space (see id. Exhibit B). The plan was to develop 4.5 acres initially, and 48 acres ultimately, over
approximately 10 years (see id.) A 12.6 acre lot along the creek was not to be developed, because it lies in a designated flood zone.
The Town Board issued a negative declaration, which stated that Uniland was providing a 10-acre conservation easement along the Ellicott Creek flood plain, and a commitment to [*11]contribute to rebuilding of Holtz/Aero Drives, after completion and occupancy of 200,000 square feet of new building area, among other commitments. At this point, Uniland has built a roadway, installed lighting and provided utilities to the property including storm and sanitary sewer lines and has completed an 80,000± square foot structure, called the Airborne Business Park, which is leased to tenants (see Montante Affid., sworn to on June 4, 2004, ¶ 10).
II. PETITION FOR INJUNCTIVE RELIEF UNDER SEQRA, PHRPL AND TOWN LAW
Petitioners seek to require Respondents, the Governor; the State Gaming Officials of the State Wagering Board; the Town; its Supervisor; and, the Town Board to comply with their respective statutory duties under a) SEQRA, b) Article 14 of the New York Parks, Recreation and Historic Preservation Law; and c) Article 5 of the New York Town Law.
A. Standard of Review:
The standard of review of an administrative decision is limited.
In reviewing administrative proceedings in general and SEQRA determinations in particular, we are limited to considering "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]). As we stated in Matter of Jackson v New York State Urban Dev. Corp. (67 NY2d 400, 416), "it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively"
(Chinese Staff and Workers Ass'n v City of New York, 68 NY2d 359, 363 [1986]).
Alternatively, if the Court determines that Respondents failed to comply with SEQRA, i.e. "the body or officer failed to perform a duty enjoined upon it by law" or "a determination was made in violation of lawful procedure" (CPLR 7803 [1], [3]), then any "action" taken must be declared null and void (see Williamsburg Around the Bridge Block Ass'n v Giuliani, 223 AD2d 64, 74 [1st Dept 1996]). Finally, "only final determinations are reviewable under CPLR article 78" (Sour Mountain Realty Inc. v New York State Dept. of Environmental Conservation, 260 AD2d 920, 922 [3rd Dept], lv denied 93 NY2d 815 [1999]; see CPLR 7801 [1]).
B.Relief Sought By Petitioners Against State and Town Respondents With Respect to SEQRA
1.Procedural Issues
(a)Mootness/Ripeness
Uniland contends that Petitioners' application for an injunction is moot, given the entry of the permanent injunction in Huron Group v Pataki (see Uniland Memo # 2 at 18-20).
The Court determines that the proceeding is not moot. As pointed out by Petitioners, the establishment of a specific cite for a Cheektowaga casino arguably stems from the vote by the Seneca Nation on April 10, 2004 (see Verified Petition ¶¶62-65), and thus the four months statute of limitations for bringing the instant CPLR Article 78 proceeding arguably began to run on that date. As Petitioners assert, dismissal of this proceeding as moot, followed by a reversal by the Appellate Division or the Court of Appeals of the decision in Huron Group v Pataki, would permit the development of a Class III gaming facility on the Cheektowaga Property [*12]without providing an opportunity to challenge it, as Petitioners' statute of limitations would have run (see generally Stop-the-Barge ex rel. Gilrain v Cahill, 1 NY3d 218, 223-224 [2003]).
The State, on the other hand, contends that Petitioners' alleged speculation regarding future State activities that may not occur and that are contingent upon conditions beyond Respondents' control are not ripe for judicial review (see State Memo in Opp. to Petition at 11-15). Because the execution of the Compact and any "actions" to be taken by the State under the Seneca Land Settlement Act are not cognizable under SEQRA or PRHPL, the State contends, the Petition must be dismissed.
The action of a State decisionmaker is considered final when that decisionmaker arrives at a "definitive position on the issue that inflicts an actual, concrete injury" (Matter of Essex County v Zagata 91 NY2d 447, 453 [1998]). As stated by the Court of Appeals:
[A] determination will not be deemed final because it stands as the agency's last word on a discrete legal issue that arises during an administrative proceeding. There must additionally be a finding that the injury purportedly inflicted by the agency may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party. If further agency proceedings might render the disputed issue moot or academic, then the agency position cannot be considered definitive or the injury actual or concrete
(Stop-the-Barge, 1 NY3d at 223 [internal quotation marks and citations omitted]).
The Court determines that, absent the injunction entered in Huron Group v Pataki, the Governor need take no further action, except to make an advisory comment under IGRA (see 25 UCS § 1774f[c]), before a casino complex may be built on the Cheektowaga Property. Thus, the State's decisions and/or approvals are definitive and the injury to Petitioners, concrete. Furthermore, in Huron Group v Pataki, this Court found the action to challenge the building of the casino on the Cheektowaga property to be ripe for review. The Court stated:
* * * [T]he Seneca Nation intends to use funds from the Settlement Act to purchase the Property * * *, as the Settlement Act permits land "within [the Nation's] aboriginal area in the State or situated within or near proximity to former reservation land" to be acquired with those funds (25 USC § 1774f [c]). * * ** * *The State, however, asserts that for the Property to be not only acquired by the Seneca Nation but "qualified" for gaming, the Secretary must fail to disapprove restricted fee status, which determination is contingent upon the negotiation of a purchase agreement between the Seneca Nation and Uniland, notice to the State and to local governments, and a thirty-day comment period, followed by a second thirty-day period during which the Secretary may determine that the lands in question should not be subject to the Non-intercourse Act (see 25 USC § 177). The State asserts that none of the aforementioned steps is subject to the State's control. Thereafter, the State asserts, should the Secretary agree that [*13]the lands should be subject to the Non-intercourse Act, the determination to take the land into restricted fee may be subject to Federal judicial review under the Federal Administrative Procedure Act or the National Environmental Policy Act * * *. Those potential developments, the State contends, render the action not ripe.The Court notes, however, * * * * * * [that] the Settlement Act allows the Seneca Nation to obtain property in restricted fee within an additional thirty days after the comment period if the Secretary does not act. Since the Secretary has already approved the Compact, and there is no indication that the Town [of Cheektowaga] will raise any objection to removal of the land from the tax rolls, it is conceivable that the comment period will pass without any municipal or Federal action of any kind. Once that occurs, the Seneca Nation might purchase the land with Settlement Act funds, foreclosing the State Court's jurisdiction over the land
.
(Huron Group v Pataki, 5 Misc 3d at 664-665). It follows here, that, as determined in Huron Group v Pataki, relevant State decisions and/or approvals with regard to the Project are ripe for review.
(b)Petitioners' standing to raise SEQRA claims
Uniland contends that Petitioners lack standing to raise SEQRA claims because Petitioners are not within sufficient "close proximity" to the site (see Sun-Brite Car Wash, Inc. v Board of Zoning Appeals, 69 NY2d 406, 413-14 [1987]), nor have they alleged a specific environmental injury which is "in some way different from that of the public at large" (see Uniland Memo # 1 at 14, quoting Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 774 [1991]). Uniland asserts that Petitioner Paladino's failure to reveal where his property lies is fatal to his claim to standing; further, Uniland contends that Paladino asserts only economic interests, which are insufficient to confer standing to challenge a SEQRA process (see Uniland Memo # 1 at 15). With respect to Concern Inc., Uniland asserts that Concern lacks standing because none of its members would have standing to sue, and because the interests to be protected by the action are not germane to its purposes: Concern opposes location of a casino anywhere in Cheektowaga, Depew, Bowmansville or Lancaster a large regional focus that differs from the special injury required by SEQRA (see id. at 16-17).
Petitioners respond that to establish standing in the SEQRA context, a petitioner must demonstrate that 1) he will suffer an injury that is environmental in nature; and 2) the nature of that injury is more substantial to the petitioner than to the community at large (see Society of Plastics v County of Suffolk, 77 NY2d at772-773). Contrary to Uniland's assertion, Petitioners contend, close proximity is not essential to establish standing (see Pet. Memo # 4 at 8).
The Court agrees with Petitioners, and determines that Petitioners Kothe and Bochman have established standing to sue (see Kothe Affid. ¶¶ 2-5; Bochmann Affid.¶¶ 2-4; see also King v County of Monroe, 255 AD2d 1003 [4th Dept 1998], lv denied 93 NY2d 801 [1999]). In King v County of Monroe (supra), the Fourth Department found standing to challenge a SEQRA process undertaken by the County in a petitioner who resided directly across the street from the proposed project and who alleged that her property would suffer environmental harm as a result of the project (id., citing Matter of Gernatt Asphalt Products v Town of Sardinia, 87 NY2d 668, 687 [1996]; Matter of LaDelfa v Village of Mt. Morris, 213 AD2d 1024, 1025 [1995]; see generally [*14]Brighton Residents against Violence to Children v MW Properties, LLC, 304 AD2d 53, 56-57 [4th Dept], lv denied 100 NY2d 514 [2003] [in land use matter, to establish standing, petitioner must have sustained an injury in fact, different in kind or degree from that of the general public, an injury that falls within the zone of interests protect by SEQRA]). Alleged traffic impacts to the surrounding streets, including Genesee and Transit, are only a small part of the alleged environmental impacts that Petitioners (other than Paladino) reasonably allege would impact them specifically in a degree different from that of the public at large (see generally New York v Shinnecock Indian Nation, 280 F Supp2d 1, 4-5 [EDNY 2003] [in which the District Court determined that the State of New York and the town of Southampton had "shown likely irreparable harm resulting from the construction of a gambling casino at Westwoods without adherence to State and local laws" because "[f]irst and foremost, the construction of a casino like the one proposed by Defendants would cause incredible traffic congestion in the surrounding community" and possible harm to fragile natural environment]).
Since the Court finds standing in some of the Petitioners, it is unnecessary to consider whether all of the Petitioners have standing to proceed.
(c)Seneca Nation is Not a Necessary Party to this Proceeding
Uniland contends that the Seneca Nation is a necessary party to the proceeding, because judgment restricting the Seneca Nation's ability to acquire the Property here "inequitably affect[s]" the Nation (see Uniland Memo # 2 at 14; CPLR 1001, 1003).
Pursuant to CPLR 1001, a necessary party is one who ought to be a party "if complete relief is to be accorded between the persons who are parties to the action", or "who might be inequitably affected by a judgment" (CPLR 1001 [a]; see Niagara Mohawk Power Corp v Anderson, 258 AD2d 958 [4th Dept], appeal dismissed 93 NY 958 [1999]; Anderson v Town of Lewiston, 244 AD2d 965, 966 [4th Dept 1997], app dismissed 91 NY2d 920 [1998]).
Town of Lewiston involved the provision of water to businesses located on the Tuscarora Indian reservation, and Supreme Court had dismissed the action in the absence of the Tuscarora
Indian Nation (see Anderson, 244 AD2d at 965). The Fourth Department affirmed the dismissal, stating:
Because resolution of this controversy involves a determination of the rights and powers of the Indian Nation to consent to water service on its reservation, complete relief cannot be accorded plaintiffs without the Indian Nation as a party. Furthermore, because a judgment in plaintiffs' favor would challenge the power of the Indian Nation, the Indian Nation might be "inequitably affected" by this litigation
(Anderson v Town of Lewiston, 244 AD2d at 966; see also Niagara Mohawk Power Corp. v Anderson, 258 AD2d at 958).
Unlike in those cases, the instant case does not seek to affect the rights of the Seneca Nation or its "power" to do any thing with its sovereign land; the Cheektowaga Property is not yet owned by the Seneca Nation. Uniland asserts in its papers that no contract of sale has been executed between Uniland and the Seneca Nation, merely a nonbinding letter of intent. Petitioners challenge the State and municipal respondents' alleged failures to comply with [*15]statutory duties, issues that can be decided in the absence of the Seneca Nation.
In Saratoga Chamber of Commerce, Inc. v Pataki (100 NY2d 801, cert denied 124 SCt 570 [2003]), the Court of Appeals determined that the Mohawk Tribe was not an indispensable party to that action (see id. at 821). The Court stated:
There are two principal purposes of requiring dismissal owing to the absence of an indispensable party. First, mandatory joinder prevents multiple, inconsistent judgments relating to the same controversy. Second, joinder protects the otherwise absent parties who would be 'embarrassed by judgments purporting to bind their rights or interests where they have had no opportunity to be heard'* * *.Neither purpose applies here. The Tribe has chosen to be absent. * * * While sovereign immunity prevents the Tribe from being forced to participate in New York court proceedings, it does not require everyone else to forego the resolution of all disputes that could affect the Tribe * * *. While we fully respect the sovereign prerogatives of the Indian tribes, we will not permit the Tribe's voluntary absence to deprive these plaintiffs (and in turn any member of the public) of their day in court
(Saratoga County, 100 NY2d at 820-821 [citations omitted]).
Uniland argues that this action is distinguishable from Saratoga County, because here "there is [a] direct attack on a primary power of the Nation, its ability to acquire property" (Uniland Memo #1 at 9). The Court disagrees. Petitioners do not challenge the Nation's power to acquire property, but, again, the alleged failure of the government respondents to comply with the law. That the Seneca Nation has chosen not to participate in the instant proceeding is their sovereign prerogative, but, under Court of Appeals jurisprudence, that cannot be permitted to deprive the instant Petitioners of their day in court.
Thus, the Court believes that the Seneca Nation is not a necessary party to this proceeding (see CPLR 1001 [a], [b]).
2.There Has Been an "Action" under SEQRA
Petitioners allege that, under SEQRA, the proposal in the Compact to acquire and transfer the Cheektowaga Property to the Nation requires many different state and local government activities that, taken together, constitute "actions" under SEQRA (see Pet. Memo # 1 at 12) . Initially, Petitioners assert that the approval of the Governor and/or the State Gaming Officers through the execution of the Compact is an action (see Pet. Memo # 3 at 2-3): but for the Compact, the Seneca Nation could not proceed to establish Class III gaming operations in New York (see 25 USC § 2710 [d] [1] [B], [C]). The actual obligation to comply with SEQRA, however, Petitioners contend, was necessarily delayed until the Seneca Nation had selected a specific site, which they did on April 10, 2004, by voting to acquire the Cheektowaga Property and establish a casino on that Property (see Pet Memo # 3 at 3 n. 2 & 13-15). At that point, Petitioners contend, a specific project plan for development was actually formulated and proposed sufficient to trigger the requirement of preparing an environmental impact statement (EIS). In other words, although the execution of the Compact was an "action" under the ECL, the actual triggering of the EIS requirement did not occur until the Seneca Nation vote. [*16]
Petitioners further allege that there are at least four other State actions necessary to the completion of the Class III gaming casino on the Cheektowaga Property: (1) that the Governor and/or the SGOs must approve the selection of the Cheektowaga Property under paragraph 11 (b) (3) of the Compact; (2) that the Governor and/or the SGOs must execute a contract with the Town to provide the Town with a share of future casino revenues (see State Finance Law § 99-h); (3) that the State, the Town, and Erie County must make plans for improvements to the roadways surrounding the Cheektowaga Property; and (4) that municipal officials must enter into service agreements regarding the provision of fire, sewer, water, garbage, police and other services to the Cheektowaga Property (see Pet Memo # 3 at 5 & n. 3; Pet. Memo # 5 at 17 n. 6). In addition, Petitioners allege that the July 2003 resolution of the Town Board to support the Seneca Nation in designating the Town as its choice for the site of a gaming casino was an action triggering SEQRA (see Pet. Memo # 1 at 13-14).[FN6] Finally, Petitioners contend that, even if the transfer of the Cheektowaga Property to the Seneca Nation is deemed not to require an "action", the transfer cannot, consistent with SEQRA and with case law, be artificially segmented from its part in the entire process (see Pet. Memo # 5 at 18, citing Village of Westbury v Department Of Transportation, 75 NY2d 62 [1989]).
If the publically announced plans of the Seneca Nation for the Cheektowaga Property were to come to fruition, they would without a doubt have a "significant effect on the environment" (ECL 8-109 [2]). The State did not deny at oral argument that a project of this proposed size would ordinarily be subject to SEQRA. Nonetheless, both the State and Uniland assert that the petition should be dismissed because SEQRA has not been invoked, and because there is no final determination by State or Town respondents properly reviewable under CPLR article 78. The State contends that no "action" has been taken to subject the project to SEQRA review at this time, rather Petitioners either assert activities specifically exempted from statutory coverage or rely upon speculative future actions not ripe for judicial review (see State Memo in Opp. to Petition at 2, 5-15; Uniland Memo # 2 at 8-9). Specifically, the State asserts that the execution of the Compact was not the action of a "state agency" as that term is defined in SEQRA. Uniland also asserts that it already went through a SEQRA process with its Airborne Business Park and received a negative declaration, to construct a project larger than the Project proposed by the Seneca Nation (see Montante Affid., sworn to on June 16, 2004, ¶¶6-12, 15).
The Town asserts that speculative future Town activities depend upon 1) first, the execution of a binding contract between the Seneca Nation and Uniland; 2) approval by the Secretary of the Department of the Interior; and, 3) possible challenges in the Federal courts to the Secretary's actions (see Town Memo at 8-9).
Finally, at oral argument, the State contends that IGRA pre-empts the application of SEQRA.
The Court determines that there has been an "action" by the State sufficient to require the [*17]application of SEQRA.
(a)Governing Law
"SEQRA's fundamental policy is to inject environmental considerations directly into governmental decision making" (Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674, 679 [1988]). SEQRA "forces agencies to 'strike a balance between social and economic goals and concerns about the environment'" (Matter of Spitzer v Farrell, 100 NY2d 186, 190 [2003], quoting Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 414 [1986]). Pursuant to SEQRA, section 8-0109:
All agencies * * * shall prepare, or cause to be prepared by contract or otherwise an environmental impact statement on any action they propose or approve which may have a significant effect on the environment
(ECL 8-0109 [2] [emphasis supplied]). The purpose of an environmental impact statement, by statute, is "to provide detailed information about the effect which a proposed action is likely to have on the environment, to list ways in which any adverse effects of such an action might be minimized, and to suggest alternatives to such an action so as to form the basis for a decision whether or not to undertake or approve such action" (id.). As stated by the Court of Appeals:
In making its initial determination, the agency will study many of the same concerns that must be assessed in an [environmental impact statement or EIS], including both long- and short-term environmental effects (see Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 364 [1986]). Although the threshold triggering an EIS is relatively low, a "negative declaration is properly issued when the agenc[y] ha[s] made a thorough investigation of the problems involved and reasonably exercised [its] discretion" (id.).
(Matter of Spitzer, 100 NY2d at 190).
Pursuant to regulations promulgated pursuant to SEQRA,
(a) No agency involved in an action may undertake, fund or approve [an] action until it has complied with the provisions of SEQR. A project sponsor may not commence any physical alteration related to an action until the provisions of SEQR have been compiled with [with exceptions not here relevant]
(6 NYCRR 617.3 [a] [emphasis supplied]). Strict compliance with SEQRA's procedures is required (see Merson v McNally, 90 NY2d 742, 750 [1997]).
Thus, the Court must determine whether there has been sufficient "action" by an "agency" to invoke SEQRA.
(b)Actions
Actions are defined by SEQRA as:
(i) projects or activities directly undertaken by any agency; or projects or activities supported in whole or part through contracts, grants, subsidies, loans, or other forms of funding assistance from one or more agencies; or projects or activities involving the issuance to a person of a lease, permit, license, [*18]certificate or other entitlement for use or permission to act by one or more agencies;(ii) policy, regulations, and procedure-making
(ECL 8-0105 [4] [emphasis supplied]). Regulations promulgated pursuant to SEQRA provide:
(b) Actions include:
(1) projects or physical activities, such as construction or other activities that may affect the environment by changing the use, appearance or condition of any natural resource or structure, that:
(i) are directly undertaken by an agency; or
(ii) involve funding by an agency; or
(iii) require one or more new or modified approvals from an agency or agencies;
(2) agency planning and policy making activities that may affect the environment and commit the agency to a definite course of future decisions;
(3) adoption of agency rules, regulations and procedures, including local laws, codes, ordinances, executive orders and resolutions that may affect the environment; and
(4) any combinations of the above.
(6 NYCRR 617.2 [b] [emphasis supplied]). Although Respondents argue that no "agency" has yet to take action with respect to the casino project (see infra), it cannot be gainsaid that State funding is involved (see 6 NYCRR 617.2 [b] [1] [ii]), e.g. through the Settlement Act and by virtue of contractual commitments to the participation of the SGOs in regulating casino activities, as prescribed under the Compact.
By regulation, the Department of Environmental Conservation (DEC) has designated certain types of actions as "Type I actions" (see 6 NYCRR 617.2 [ai]; 617.4). Type I actions carry the presumption that they are likely to have a significant adverse impact on the environment and may require the making of an environmental impact statement (EIS) (see 6 NYCRR 617.4 [a]; see also 6 NYCRR 617.7 [c] [additional criteria indicating EIS may be necessary e.g. adverse change in air quality or surface water quality or quantity, traffic or noise levels]). Type I actions include "activities" directly undertaken, funded or approved by an agency that meet or exceed certain thresholds, including those which will "involve the physical alteration of 10 acres"; will require "parking for 1,000 vehicles"; or in a town having a population of 150,000 persons or less, will result in "a facility with more than 100,000 square feet of gross floor area" (see 6 NYCRR 617.4 [b] [6] [i], [iii], [iv]).
The regulations promulgated pursuant to SEQRA also list so-called "Type II" actions, i.e. actions that are not subject to SEQRA review and that do not require preparation of an EIS, because DEC has determined that they do not have a significant effect on the environment or that they are otherwise precluded from review (see ECL 8-0113 [2] [c] [ii]; 6 NYCRR 617.5). In 1995, the regulations were amended to include among the actions deemed not "subject to review under" SEQRA, in other words, deemed to be Type II: "actions of the Legislature and the Governor of the State of New York" (6 NYCRR 617.5 [c] [37]). [*19]
The Third Department in Matter of West Village Committee, Inc. v Zagata, (242 AD2d 91 [3rd Dept], lv denied 92 NY2d 802 [1998]) reviewed the validity of various parts of that regulation (6 NYCRR 617.5). Under SEQRA regulations, a "state agency" is defined by statute as "any state department, agency, board, public benefit corporation, public authority or commission" (see ECL § 8-0105 [1]; 6 NYCRR 617.2[ah] [same]). The Third Department ruled that the term "state agency" does not include the Governor (see Matter of West Village Committee, Inc. v Zagata, 242 AD2d at 98). The Court made an analogy to Federal law, specifically the United States Supreme Court's interpretation of the term "agency" in the Administrative Procedure Act (APA) (5 USC § 701 et seq.), which does not specifically include or exclude the President. The United States Supreme Court had determined that textual silence was not enough to subject the President to the provisions of the APA (see Matter of West Village Committee, 242 AD2d at 99, citing Franklin v Massachusetts, 505 US 788, 800-801 [1992]).
For the same reasons it has been held that the President is not subject to the impact statement requirements of the National Environmental Policy Act upon which SEQRA was patterned (see State of Alaska v Carter, 462 FSupp 1155, 1160; Williamsburg Around the Bridge Block Assn. v Giuliani, 223 AD2d 64, 69 n.2).We believe the same reasoning applies with equal force to the constitutional office of Governor and prevents us from lightly inferring a legislative intent to impose SEQRA's mandates upon such office. * * *Accordingly, we find that DEC's promulgation of 6 NYCRR 617.5 (c) (37) is not in derogation of SEQRA. In any event, petitioners' argument appears to be more of an intellectual one than a practical one, for as one commentator has noted, virtually any conceivable act of the Governor would have to be executed by a State agency and thus fall within SEQRA
Matter of West Village Committee, 242 AD2d at 99 [emphasis supplied], citing Weinberg, Practice Commentaries, McKinney's Cons Laws of NY, Book 17 ½, ECL 8-0105, at 103 [1998]).
In the context of the instant case, the Third Department's statement was not prescient. Although the Governor derived his ability to execute the Compact only after legislative authorization, by way of Executive Law § 12 (see generally Saratoga Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 822-824, cert denied 124 SCt 570 [2003]), that authority was vested solely in the Governor. No state agency must act with the Governor to execute a Nation-State Compact, and thus this is one "action" of the Governor that is defined by regulation as Type II, even though the Project is likely to have a significant effect on the environment and would otherwise fall under Type I.
That issue whether the execution by the Governor of a Compact to develop a casino on lands to be owned by an Indian tribe can be deemed a Type II action was raised peripherally in the case of Settco, LLC v New York State Urban Devel. Corp. (305 AD2d 1026 [4th Dept], lv denied 100 NY2d 508 [2003]). In that case, an owner of property in Niagara Falls being [*20]condemned for the site of a new convention center challenged the alleged "segmentation" of the environmental review of the proposed condemnation/acquisition, from any State environmental review over the conveyance of the former Niagara Falls convention center for use as a casino by the Seneca Nation. The conveyance of the former convention center was mandated under the Compact at issue in this case (see Verified Petition, Exhibit C, at ¶ 11 [b] [2][FN7]). The Fourth Department determined that there was no improper "segmentation" of review under SEQRA, because the "legally mandated" conveyance of the former convention site was specifically exempted from SEQRA review as a Type II action, in that it involved "official acts of a ministerial nature, involving no exercise of discretion" and also was an action "of the Legislature and the Governor" (Settco, LLC, 305 AD2d at 1026-1027, citing 6 NYCRR 617.5 [c] [19], [37]). Note that the Settco decision does not consider the fact that it was the Empire State Development Corporation, and not the Governor, that transferred fee title to the Nation (see Verified Petition, Exhibit C, at ¶ 11 [b] [2] [a]). Thus, the Fourth Department was apparently considering the "action" involved as the execution of the Compact, and not the transfer of the title. In any event, the Court went on to state:
Given the exemption of the casino project from environmental review under SEQRA, respondents [New York State Urban Development Corp., Doing Business as Empire State Development Corp. and USA Niagara Development Corp.] properly considered the impacts of the acquisition of the subject property and the relocation of the convention center activities apart from the impacts of the casino project. In any event, even assuming the applicability of SEQRA to both projects, we conclude that the two projects are sufficiently independent of one another as to be separately reviewable
(Settco, LLC, 305 AD2d at 1027 [emphasis supplied]).
Thus, Settco, although it appeared to have dealt with the issue whether execution of a Compact is a Type II action, is nonetheless factually, as well as legally, distinguishable from the instant case. In Settco, the main issue was the propriety of the condemnation of private property for use as a convention center; the legality of the absence of SEQRA review over the transfer of the former convention center to the Seneca Nation was an issue not squarely before the Court but nonetheless determined, in the alternative: that the State properly determined that no SEQRA review was necessary because the action of transferring a convention center was an action of the Governor exempt from SEQRA review and, in the alternative ("[i]n any event"), any SEQRA review of the condemnation of the petitioner's land was properly segmented from any SEQRA review of the convention center transfer. [*21]
In addition, the two situations are factually distinguishable: in Niagara Falls, the Compact mandated the conveyance of the former convention center and its development as a casino. With respect to Erie County, and the site in Cheektowaga approved by the State, the Compact concerns the conveyance of, and development on and operation of a casino and a hotel on 57± acres of largely raw, undeveloped land near the Airport, a creek, and a landfill/Superfund site. Bypassing SEQRA review of such a project is a different animal, indeed.
The Court notes, further, that the New York State Legislature clearly considered the environmental effects of the construction of Class III gaming casinos, as evident from the legislative statements enacted as L.2001, c. 383, pt. B, § 1. That section states in part:
* * * Moreover, the legislature finds that gaming should be conducted in a manner which adequately protects the environment and the public health and safety, which is a stated requirement for the conduct of class III gaming activities pursuant to the Indian Gaming Regulatory Act.
(L. 2001, c 383, pt B, § 1 [emphasis supplied], printed in McKinney's Cons Laws of NY, Vol. 13, Executive Law § 12, History). As noted earlier, this language tracks the requirements of IGRA. Section 2710 (b) (2) provides in part:
(2) The Chairman [of the National Indian Gaming Commission] shall approve any tribal ordinance or resolution concerning the conduct, or regulation of class II gaming on the Indian lands within the tribe's jurisdiction if such ordinance or resolution provides that
* * *
(E) the construction and maintenance of the gaming facility, and the operation of that gaming is conducted in a manner which adequately protects the environment and the public health and safety
(25 USC § 2710 [b] [2] [E]; see § 2710 [d] [1] [A] [i]-[ii] [Class III gaming resolution must comply with section 2710 (b) (2) (E)]).[FN8]
The Court also takes judicial notice of the fact that the Governor's recently introduced legislation to amend Executive Law § 12 (b), which authorizes Nation-State Compacts to be executed for up to five Class III gaming facilities in the Catskills, contains the following language:
[*22]
Such tribal-state compacts shall provide that, among other things, prior to the commencement of any construction, reconstruction, rehabilitation, expansion, demolition or other physical alteration of the project site (other than routine maintenance or repair or changes necessary to conform to local building or fire codes), an environmental impact statement consistent with the requirements of article eight of the Environmental Conservation Law shall be duly prepared by the tribe or nation, or on behalf of the tribe or nation, for the purpose of determining, minimizing and mitigating potential adverse environmental impacts; provided, however, that when an environmental impact statement has been duly prepared under the National Environmental Policy Act of 1969, there shall be no obligation to prepare an additional environmental impact statement under this section nor article eight of the Environmental Conservation Law, provided that the federal environmental impact statement is sufficient to make findings pursuant to article eight of the Environmental Conservation Law
.
(2005 NY Assembly Bill No. 5159, § 8 [emphasis supplied]). Recognition by the Governor that the Sullivan and Ulster County compacts should require an EIS for each casino project is highly persuasive evidence that SEQRA applies to the casino project at issue here.
(c)The State's Approval of a Site under Compact Paragraph 11 (b) (3) is a Further Step Involved in the State "Action" under SEQRA
With respect to the Seneca Nation's choice of a specific site for construction and operation of a Class III gaming facility in Erie County, the State contends that it has no site approval authority under Executive Law § 12 or the Compact. The State further asserts that it has no authority to do other than comment to the Secretary under the Seneca Nation Settlement Act of 1990 (25 USC §§1774 et seq.) (hereinafter the Settlement Act), and that the mere act of commenting is not cognizable under SEQRA.[FN9]
By way of background, the Settlement Act was enacted in connection with the settlement of land claims by the Seneca Nation concerning leases of land in the City of Salamanca and other villages (see 25 USC § 1774 [a]). As noted earlier, both the State and the Federal government contributed funds and, in Huron Group v Pataki, this Court wrote:
* * * [T]he Seneca Nation intends to use funds from the Settlement Act to purchase the Property (see Compact ¶ 11 [b] [3], [4]), as the Settlement Act permits land "within [the Nation's] aboriginal area in the State or situated within [*23]or near proximity to former reservation land" to be acquired with those funds (25 USC § 1774f [c]).
(Huron Group v Pataki, 5 Misc 3d at 664). With respect to lands purchased with such funds, the Settlement Act provides:
State and local governments shall have a period of 30 days after notification by the Secretary or the Seneca Nation of acquisition of, or intent to acquire such lands to comment on the impact of the removal of such lands from real property tax rolls of the State political subdivisions. Unless the Secretary determines within 30 days after the comment period that such lands should not be subject to the provisions of [25 USC 177], such lands shall be subject to the provisions of that Act and shall be held in restricted fee status by the Seneca Nation
(25 USC § 1774f [c]).
Robert Williams, Esq., who alleges in an affirmation that he participated in the State's negotiations of the Compact, asserts that Compact paragraph 11(b) (3) does not require agreement from the State before the Seneca Nation seeks to utilize Settlement Act funds to acquire a site; rather, it provides that the State will support the Nation's application, unless the State has a reasonable basis for disagreeing with the chosen site (see Williams Affirm., ¶ 6).
Paragraph 11 (b) (3) of the Compact states:
(3) The State shall support the Nation in its use of the procedure set forth in the [Settlement Act], to acquire restricted fee status for the site described in Appendix I and any other site chosen by the Nation pursuant to Paragraphs 11(a) (1) [in Niagara County] and 11 (a) (2) [in Erie County], to which the State has agreed, such agreement not to be unreasonably withheld. * * *
(Compact 11 [b] [3] [emphasis supplied]).
The Court agrees with Mr. Williams' interpretation of the Compact, insofar as it relates to the Nation's ability to acquire any property not just the Cheektowaga Property without the State's agreement. Federal courts have held that, for tribes that seek to operate "slot machines and other Class III gaming, there is no requirement that a compact be secured before a tribe may obtain a casino site" (Tomac v Norton, 193 F Supp2d 182, 192-193 [D DC 2002], citing 25 UCS § 2710(d)(1); see Kansas v United States, 249 F3d 1213, 1223-24 [10th Cir 2001]).
Contrary to the State's contention, however, under the Compact at issue here, the Seneca Nation must secure the State's agreement with the site it chooses in Erie County. The State's contention to the contrary is that the phrase "to which the State has agreed" in paragraph 11 (b) (3) applies to the State's agreement to the language of paragraphs 11(a) (1) and (2) of the Compact, and not to the site chosen by the Seneca Nation (see State Memo of Law in Opp. to Petition at 8). Such interpretation renders unintelligible the requirement that the State's agreement "not be unreasonably withheld", which implies a future agreement, not an agreement [*24]to language in a Compact that has already been executed.[FN10]
Rather, this Court reiterates its interpretation of that section of the Compact in Huron Group v Pataki:
Thus for the specific purpose described in subparagraph 11(b)(3) of the Compact, the State of New York must agree to any site chosen by the Seneca Nation pursuant to subparagraph 11(a)(2) of the Compact, if the State is to be bound by the obligations imposed under the paragraph. The use of the word "shall", as contrasted to the use of the word "may" in paragraph 11(a)(2) of the Compact establishes the duty of the State, subject to the other provisions of the paragraph, to assist the Seneca Nation in acquiring restricted fee status for any site chosen by the Nation. * * *
Presumably, subparagraph 11(b)(3) of the Compact was added to provide the Seneca Nation with needed State assistance (legal or otherwise) in securing fee title to the site approved by the State. Given the anticipated complexity of securing fee title for the municipal casino site in Niagara County * * * and Erie County * * *, the provisions of subparagraph 11(b)(3) mandate that the Seneca Nation seek site approval from the State
(Huron Group, Inc. v Pataki, 5 Misc 3d at 678-679).
The State's agreement to or approval of the Seneca Nation's choice of the Cheektowaga Property for its Erie County casino project is an additional step taken by the State which, together with its execution of the Compact, invokes SEQRA (see ECL 8-0105 [4] [i] [action includes "projects or activities involving the issuance to a person of a lease, permit, license, certificate or other entitlement for use or permission to act by one or more agencies" (emphasis supplied)]).
According to the applicable regulation:
(g) Actions commonly consist of a set of activities or steps. The entire set of activities or steps must be considered the action, whether the agency decision-making relates to the action as a whole or to only a part of it.
(1) Considering only a part or segment of an action is contrary to the intent of SEQRA. If a lead agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance, and any subsequent EIS, [*25]the supporting reasons and must demonstrate that such review is clearly no less protective of the environment. Related actions should be identified and discussed to the fullest extent possible
(6 NYCRR 617.3 [g] [1] [emphasis supplied]). Here, the set of steps includes the execution of the Compact, by the Governor, involving State funding for the Project; the decision of the Seneca Nation to choose the Cheektowaga Property for the Erie County casino site; and the State's (i.e. the SGOs' or other State officers') approval of that site for the construction of the Project. That set of steps "must be considered the action" (6 NYCRR 617.3 [g]), and that action, carried out in part by state officials other than the Governor and involving State funding, invokes the provisions of SEQRA.
(d)Validity of the Regulation
Even if all steps constituting the "action" that have been taken by the State were deemed to have been actions of the Governor including the commitment of funding for the Project and therefore deemed Type II actions under the regulations (see 6 NYCRR 617.5 [c] [37]), the Court nonetheless finds that SEQRA has been invoked by the State's decision making.
Petitioners here take no position on whether 6 NYCRR 617.5 (c) (37) is valid, recognizing the heavy burden placed upon a litigant who challenges the reasonableness of an agency's regulations. In the instant case, however, on the present record and under the limited facts at issue,[FN11] the Court determines that the DEC exceeded its statutory authority by promulgating a regulation mandating that the actions of the Governor in approving a Cheektowaga site for a casino and committing State funding to the regulation of that Project be deemed a Type II action.
In Matter of West Village Committee, Inc. v Zagata, (242 AD2d at 96), the Third Department wrote:
When an administrative agency exercises its rule-making powers, it is accorded a high degree of judicial deference provided it acts within its statutory powers and the rule of regulation has a rational basis (see Matter of Consolation Nursing Home v Commissioner of New York State Dept. of Health, 85 NY2d 326, 331 [1995] [other citations omitted]). Thus, to establish their causes of action, petitioners were required to show that DEC either exceeded its statutory authority or that the challenged regulations were so lacking in reason that they are essentially arbitrary
(West Village Committee, 242 AD2d at 96; see Ostrer v Schenck, 41 NY2d 782, 786 [1977]).
The State cites West Village Committee as authority for upholding the designation by the [*26]DEC of all actions of the Governor as exempt from the application of SEQRA.[FN12] The trial court in that case had invalidated that particular regulation, section 617.5 (c) (37) (see Matter of West Village Committee, 171 Misc 2d at 457). As noted, the Third Department reversed that determination, determining that the DEC's promulgation of 6 NYCRR 617.5 (c) (37) was not in derogation of SEQRA, adding that "[i]In any event, petitioners' argument appears to be more of an intellectual one than a practical one, for as one commentator has noted, virtually any conceivable act of the Governor would have to be executed by a State agency and thus fall within SEQRA" (Matter of West Village Committee, 242 AD2d at 99 [emphasis supplied], citing Weinberg, Practice Commentaries, McKinney's Cons Laws of NY, Book 17 ½, ECL 8-0105, at 103 [1998]).
ECL 8-0113 requires that, after appropriate consultation with other State agencies, the holding of public hearings and comments periods, the Commissioner of DEC shall promulgate regulations implementing the provisions of article 8, including specifically "[c]riteria for determining whether or not a proposed action may have a significant effect on the environment, taking into account social and economic factors to be considered in determining the significance of an environmental effect" (ECL 8-0113 [1], [2] [b]). The DEC is charged further with identifying actions or classes of action that it determines "not to have a significant effect on the environment" and which do not require an EIS. The Commissioner is specifically required to make a finding that each such action or class of actions identified do not have such a significant effect (see ECL 8-0113 [2] [c] [ii]). On the present record, which involves the development of 57 ± acres of largely raw, undeveloped land near an airport, a creek, and a landfill/Superfund site, such a finding could not rationally be made with respect to the actions of the Governor at issue here. [*27]
The Court does not here determine that 6 NYCRR 617.5(c)(37), by exempting all actions of the Governor from SEQRA review, is contrary to law and ultra vires. Rather, the Court finds that, under the circumstances, the actions of the Governor in executing the Compact and agreeing with the Seneca Nation's choice of the Cheektowaga Property as the site for the Erie County casino under paragraph 11 (b) (3) of the Compact, cannot be deemed to be Type II actions; such actions trigger the application of SEQRA (see generally Matter of Doremus v Town of Oyster Bay, 274 AD2d 390, 393 [2d Dept 2000]; Matter of Abate v City of Yonkers, 265 AD2d 517, 518 [2d Dept], appeal dismissed 94 NY2d 834 [1999]; Matter of Town of Bedford v White, 204 AD2d 557 [2d Dept 1994]).
(e)Executive Law § 12 Does Not Bar Application of SEQRA to Casino Land under Compact
As an additional basis for the contention that SEQRA is inapplicable to the execution of a compact, the State cites the Executive Law section authorizing the Compact at issue here:
Notwithstanding any other law, the state, through the governor, may execute a tribal-state compact with the Seneca Nation of Indians pursuant to the Indian Gaming Regulatory Act of 1988
(Executive Law § 12 [a] [emphasis supplied]). Thus, the State asserts, SEQRA is not triggered by the transfer of the land to the Seneca Nation, because the Compact may be executed "notwithstanding any other law".
In New York State Lawncare Assoc. Inc. v County of Albany (292 AD2d 719, 720-21 [3rd Dept 2002]), the Third Department ruled that the language "[n]otwithstanding any other provision of law to the contrary" in ECL § 33-1004(1), concerning local enactment of a pesticide notification law, meant that the County of Albany could "opt into the neighbor notification program * * * without regard to 'any other provision of law to the contrary', including SEQRA" (292 AD2d at 720).
Although the State's contention that the instant situation is analogous to that in Lawn Care Ass'n is a logical one, the Court disagrees with the State's interpretation. Initially, the fact that the Compact authorized by Executive Law § 12 relates to Class III gaming makes it clear that at least some of the laws "notwithstanding" are those regulating the types of gaming falling under that class (see e.g. New York Constitution article I, § 9 and General Municipal Law §§186-187 [Local Option for Conduct of Games of Chance]).
In addition, the Court notes section 12(c) of the Executive Law, which states:
c) Except as otherwise specifically provided in the compact, the state specifically reserves all its rights, as attributes of its inherent sovereignty, recognized by the tenth and eleventh amendments to the United States Constitution
(Executive Law § 12 [c] [emphasis supplied]). That provision clearly preserves the State's rights to apply the provisions of SEQRA in the compacting process (see Matter of City Council of the City of Watervliet v Town Board of the Town of Colonie, 3 NY3d 508, 516-517 [2004] [municipal annexation subject to SEQRA; General Municipal Law (GML) provision [*28]"notwithstanding any inconsistent act of the legislature to the contrary" did not bar application of SEQRA, which was neither inconsistent nor contrary to the procedures in the GML]).
As stated by the Court of Appeals:
Moreover, the Legislature has declared "that 'to the fullest extent possible' statutes should be administered by the State and its political subdivisions in accordance with the policies set forth in SEQRA and that environmental factors should be considered in reaching decisions on proposed projects" (Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41, 46 [1982] [quoting ECL 8-0103(6)])
(City Council of City of Watervliet v Town Board of Town of Colonie, 3 NY3d at 515-516). Thus, the Court determines that the language of Executive Law § 12 (a) does not bar the application of SEQRA under these circumstances.
(f)IGRA Preempts SEQRA after Property Becomes Indian Land
The State accurately contended at oral argument that IGRA preempts SEQRA so long as one is referring to jurisdiction over Indian lands. Of course, the State has only limited power to regulate activities on Indian lands (see Gaming Corp. v Dorsey & Whitney, 88 F3d 536, 547 fn12 [8th Cir 1996]).[FN13]
Federal courts have recognized that principles of tribal sovereign immunity have changed over the years (see id. at 548). In analyzing the preemptive effects of IGRA over state law and jurisdiction, the United States Court of Appeals for the Eighth Circuit stated:
This apparently is the first time a federal appellate court has been asked to consider whether IGRA completely preempts state laws regulating gaming on Indian lands, * * * but a number of federal courts have noted the strong preemptive force of IGRA
(Gaming Corp. v Dorsey, 88 F3d at 543-544 [footnotes and citations omitted]). Later on in the analysis, the Eighth Circuit stated:
Congress thus left states with no regulatory role over gaming except as expressly authorized by IGRA, and under it, the only method by which a state can apply its general civil laws to gaming is through a tribal-state compact. Tribal-state compacts are at the core of the scheme Congress developed to balance the interests of the federal government, the states, and the tribes. They are a creation of federal law, and IGRA prescribes "the permissible scope of a Tribal-State compact, see § 2710(d)(3)(C)." [Seminole Tribe of Florida v Florida, 517 US 44, , 116 SCt 1114, 1120 (1996)]. Such compacts must also be approved by the Secretary of the Interior. § 2710(d)(3)(B). * * *[*29]* * * * * * The legislative history reveals the intent of Congress in setting up this tripartite scheme and in considering state, tribal, and federal interests:[I]n the final analysis, it is the responsibility of the Congress, consistent with its plenary power over Indian affairs, to balance competing policy interests and to adjust, where appropriate, the jurisdictional framework for regulation of gaming on Indian lands. * * * For class III casino, parimutuel and slot machine gaming, the bill authorizes tribal governments and State governments to enter into tribal-State compacts to address regulatory and jurisdictional issuesS.Rep. No. 446, 100th Cong., 2d Sess. 3 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3073.Congress thus chose not to allow the federal courts to analyze the relative interests of the state, tribal, and federal governments on a case by case basis. Rather, it created a fixed division of jurisdiction. * * * With only the limited exceptions noted above, Congress left the states without a significant role under IGRA unless one is negotiated through a compact
(Gaming Corp. v Dorsey, 88 F3d at 546-547 [emphasis supplied]).
Thus, IGRA pre-empts SEQRA except in connection with the Governor's execution of a Nation-State Compact and approval, in our case, of a site for the casino.
C.Petitioners Have Not Established that the State was Required to Comply with Section 14.09 of the Parks, Recreation & Historic Preservation Law
Petitioners contend that, pursuant to the New York State Parks, Recreation and Historic Preservation Law (hereinafter PRHPL), the State must consult with the Commissioner of the New York State Office of Parks, Recreation and Historic Preservation (NYSOPRHP) as early in the planning process as possible and prior to "an action of approval or entitlement of any private project by a State agency" (see PRHPL §14.09 [1]). The execution of the Compact, Petitioners contend, triggered the need for PRHPL compliance (see Pet. Memo # 1 at 20-21).
The PRHPL section at issue provides in pertinent part:
As early in the planning process as may be practicable and prior to the preparation or approval of the final design or plan of any project undertaken by a state agency, or prior to the funding of any project by a state agency or prior to an action of approval or entitlement of any private project by a state agency, the agency's preservation officer shall give notice, with sufficient documentation, to and consult with the commissioner concerning the impact of the project if it appears that any aspect of the project may or will cause any change, beneficial or adverse, in the quality of any historic, architectural, archeological, or cultural property that is listed on the national register of historic places or [*30]property listed on the state register or is determined to be eligible for listing on the state register by the commissioner
(PRHPL § 1409 [1] [emphasis supplied]). The Verified Petition provides no evidence that any part of the Cheektowaga Property is listed on the National Register of Historic places or the State Register, or that it is eligible for such listing. Absent such evidence, the statute is inapplicable on that basis alone, without consideration of other bases raised by Respondents.
Furthermore, the EAF submitted by Uniland to the Town in 1998 in connection with its application concerning the Airborne Business Park, built on the Cheektowaga Property, includes a Cultural Resource Investigation stating in part:
Prehistoric. The project area was initially considered to be of [sic] highly sensitive for the location of unrecorded prehistoric archaeological sites because of its proximity to several known sites and to Ellicott Creek. * * * The high sensitivity assigned to the project is moderated to very low, due to the highly disturbed nature of the terrain. Years of stripping, cutting and filling have impacted the original ground surfaces to such a degree that no intact soils could be present.Historic. In spite of the former presence of two farmsteads within the project area, it is considered to have a generally low sensitivity for the location of historic resources, archaeological or architectural. The locations of the farmsteads on Holtz Road and Genesee have been long impacted by historic development. [sic] In some case by successive episodes of construction and demolition
(Montante Affid., sworn to on June 16, 2004, Exhibit B, Tab 1 [from Stage 1A Cultural Resource Investigation for the Airborne Business Park Development by C. A. Pierce, May 16, 1998] [emphasis supplied]).
Thus, Petitioners have failed to establish any basis for relief under PRHPL.
D.Town Boundaries Would Not Change
Petitioners seek to require the Town respondents, i.e. the Town of Cheektowaga, its Supervisor and the Town Board, to comply with their statutory duties under Article 5 of the New York Town Law, which requires a petition and a public referendum, among other things, before the boundaries of the Town may be changed (see Verified Petition ¶¶93-99; Pet Memo # 1 at 23-25). The Town responds that Town Law Article 5 does not apply to land acquired by the Seneca Nation under the Settlement Act, because the boundaries of the Town would not thereby be altered. As Uniland also contends, the Town asserts in effect that creation of "Indian Lands" in that fashion affects state and local municipal jurisdiction over the land, but does not change the Town's boundaries.
The Court agrees with the Town's position. Petitioners have cited no case law in support of their position that the proposed acquisition of the Cheektowaga Property by the Seneca Nation would change the boundaries of the Town, triggering obligations under Town Law Article 5 (sections 73 et seq.). In an analogous context, with respect to the City of Sherrill's attempts to tax certain land formerly on the Oneida Indian reservation and recently reacquired by Nation [*31]members, the Second Circuit discussed Federal policy concerning Indian sovereignty:
While the tribes exercise inherent sovereign authority over their members and land located within state boundaries, they are nevertheless "domestic dependent nations" under federal protection (Cherokee Nation v Georgia, 30 US 1, 17 [1831] [other citations omitted]. The land they occupy is owned by the United States, which has retained the authority to regulate conveyances
(Oneida Indian Nation of New York v City of Sherrill, 337 F3d 139, 154 [2d Cir 2003], rev'd on other grounds 125 SCt 1478 [March 29, 2005]). Similarly, although States such as Massachusetts have portions of their land that now lie within the Cape Cod National Seashore, such land is not considered to be outside the boundaries of such states (see e.g. United States v 125.7 Acres of Land, 667 F2d 243 [1st Cir 1981]).
The contention that the Town must comply with Town Law Article 5 with respect to the acquisition of the Cheektowaga Property by the Seneca Nation is without merit.
E.Uniland's Order to Show Cause and Cross Motion: Petitioners' Motion to Dismiss Uniland's Counterclaim and Award Costs and Attorneys' Fees
Uniland moved by order to show cause to vacate the TRO and deny a preliminary injunction or require an undertaking in the minimum amount of $12.4 million. In addition, Uniland cross-moves to dismiss and/or for summary judgment on the petition.
In its counterclaim, which Petitioners seek to dismiss, Uniland contends that 1) it entered into a memorandum of understanding with the Seneca Nation Gaming Corporation to sell the Cheektowaga Property at a profit; 2) by bringing this proceeding and obtaining a TRO, Petitioners have caused irreparable harm to Uniland and may cause Uniland to lose $12,400,000, if the Seneca Nation chooses an alternate location in Cheektowaga; 3) therefore, Uniland asserts, if the sale is not consummated, Petitioners will be liable for its damages; and 4) meanwhile, Uniland asserts that Petitioners must, for the time being, post a bond for the difference between the alleged sale price of the Cheektowaga Property to the Seneca Nation $15,000,000 and the assessed value of the land. That amount is, Uniland asserts, $12.4 million. In other papers, Uniland asserts that it filed the counterclaim "in response to a harassing lawsuit brought by Petitioners in which Uniland suffered real harm" (Dobson Affid., sworn to on Aug 3, 2004, ¶ 22). Further, Uniland contends that although the TRO might as a practical matter have had no effect in prohibiting the sale, it "would have a severe practical effect on whether the Senecas would want to continue to negotiate given the plethora of lawsuits being filed" (id. ¶ 20).
As a matter of law, the Court dismisses the counterclaim. By the time the instant TRO was granted on May 25, 2004, Uniland had already voluntarily agreed on May 4 to a standstill agreement in Huron Group v Pataki, barring it from selling the property to the Seneca Nation pending a decision in that case. Then, on June 16, 2004, this Court permanently enjoined the sale (see Huron Group v Pataki, 5 Misc 3d at 688-690).
Uniland's contention that the plethora of lawsuits will cause the Seneca Nation to look elsewhere in Cheektowaga for a site for its Erie County casino is illogical. If SEQRA applies to the Property at issue here, it would apply to any piece of unimproved property in Cheektowaga on which the Nation might seek to place a casino. [*32]
Secondly, and more importantly, even taking the facts alleged in the counterclaim as true, Uniland has failed to state a cause of action for tortious interference with contract or with its prospective business relations. A claim for tortious interference with contract must allege the
existence of a valid contract (see Lama Holding Co. v Smith Barney, Inc., 88 NY2d 413, 424 [1996]). Uniland admits it has no binding contract with the Seneca Nation.
In addition, Uniland cannot state a cause of action for tortious interference with prospective business relations. To state such a cause of action, Uniland must allege that it had business relations with a third party; that Petitioners interfered; that Petitioners acted with the sole purpose of interfering or engaged in culpable conduct; and, that Uniland was thereby injured (see Guard-Life Corp. v S. Parker Hardware Mfg. Corp., 50 NY2d 183, 193 [1980]; see also NBT Bancorp, Inc. v Fleet/Norstar Fin. Group, 87 NY2d 614, 621 [1996]; Alexander & Alexander of New York, Inc. v Fritzen, 68 NY2d 968, 969 [1986]). Culpable conduct means "wrongful means", i.e "fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure" (Guard-Life Corp., 50 NY2d at 191).
A lawsuit constitutes "improper means" if the litigant has no belief in the merit of the litigation, or having some belief in the merit, institutes or threatens to institute the litigation in bad faith, intending only to harass third parties and not to bring the claim to adjudication
(Matsushita Electronics Corp. v Loral Corp., 974 F Supp 345, 354 -355 [SDNY 1997] [citing New York law]).
As noted, the injunction in the instant lawsuit had no practical effect due to the prior standstill agreement and subsequent permanent injunction. Uniland contends nonetheless that Petitioners used improper means, in other words that they brought the instant proceeding solely to harass Uniland and to prevent the Seneca Nation from continuing to seek to purchase Uniland's property. The Court's ruling herein, however, establishes the merit of Petitioners' claims that an environmental assessment must be performed by the State before the Project can go forward, regardless of what happens on appeal in Huron Group v Pataki. Further, Uniland has alleged no basis for its allegations that Petitioners Kothe, Bochmann, and Concern Inc. sued only to harass and interfere, and has failed to allege any other improper means.
Petitioners go farther, and contend that the counterclaim is a "SLAPP" suit, a strategic lawsuit against public participation (see, e.g. 600 West 115th Street Corp. v Von Gutfeld, 80 NY2d 130, 138 n.1 [1992], cert denied 508 US 910 [1993]).
In recent years, there has been a rising concern about the use of civil litigation, primarily defamation suits, to intimidate or silence those who speak out at public meetings against proposed land use development and other activities requiring approval of public boards.Termed SLAPP suits * * * such actions are characterized as having little legal merit but are filed nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future * * * . In response, New York State enacted a law specifically aimed at broadening the protection of citizens facing litigation arising from their public [*33]petition and participation (L. 1992, ch. 767)
(600 West 115th Street Corp. v Von Gutfeld, 80 NY2d at 138 n.1; see Civil Rights Law §§70-a, 76-a; CPLR 3211 [g], 3212 [h]).
The instant action falls within the definition of an action "involving public petition and participation" (see Civil Rights Law § 70-a [1], 76-a [1] [a]), which definition is an "action, claim, cross claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission" (id. § 76-a [1] [a] [emphasis supplied]). Uniland is clearly a "public applicant or permittee" under the Civil Rights Law definition:
any person who has applied for or obtained a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission
(id.§ 76-a [1] [b] [emphasis supplied]). The Seneca Nation has contracted with the State through the Compact for permission to engage in Class III gaming activities on its property, including the Cheektowaga Property that it expressed an intention in acquiring for that purpose, and Uniland's interest here is materially related to that permission. Under the Civil Rights Law, therefore, Petitioners, as counterclaim defendants in an action "involving public petition and participation, as defined * * *, may maintain an action, * * * cross claim or counterclaim to recover damages, including costs and attorney's fees, from any person who commenced or continued such action; provided that: (a) costs and attorney's fees may be recovered upon a demonstration that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law" (Civil Rights Law § 70-a [1] [a]).
Finally, subdivision (h) of CPLR 3212 provides:
(h) Standards for summary judgment in certain cases involving public petition and participation. A motion for summary judgment, in which the moving party has demonstrated that the action, * * * or counterclaim subject to the motion is an action involving public petition and participation, as defined in [Civil Rights Law § 76-a (1) (a)], shall be granted unless the party responding to the motion demonstrates that the action, * * * or counterclaim has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law. The court shall grant preference in the hearing of such motion
(CPLR Rule 3212 [h] [emphasis supplied]).
The Court agrees with Petitioners that the counterclaim has no merit, and therefore that Petitioners are entitled to dismissal of the counterclaim under CPLR 3212 (h). The Court, however, declines to award attorneys' fees and costs under Civil Rights Law §§ 70-a & 76-a under the present circumstances (see e.g. Civil Rights Law § 70-a [1] [a] [costs and fees "may" [*34]be recovered]). In this case, the alleged SLAPP suit is a counterclaim; in other words, Uniland was not the initiator of the lawsuit. In addition, Petitioners filed eight (8) separate briefs in this action, in addition to numerous other papers, as detailed supra. Portions of two of those briefs, or a total of 16 pages, were directed to the counterclaim and the claim for attorneys' fees and costs. The amount of time and effort directed to the counterclaim, therefore, was minimal compared to Petitioners' overall effort, and the Court therefore declines to make an award under the Civil Rights Law.
F.Relief
Based upon the foregoing, the Court determines that the State was required to comply with SEQRA after executing the Compact, which involves the expenditure of State funds in regulating the casino, and, in agreeing to the choice of the Cheektowaga Property as the Seneca Nation's Erie County site under 11 (b) (3) of the Compact. The State failed to comply with SEQRA, and thus has "failed to perform a duty enjoined upon it by law" (see CPLR 7803 [1]).
Therefore, the Court grants the petition insofar as it alleges a violation of SEQRA by State officials, and (i) directs the Governor of the State of New York and the State Gaming Officials and/or their designees to comply with the State Environmental Quality Review Act (SEQRA) by preparing a draft environmental impact statement pursuant to 6 NYCRR 617.9, concerning the proposed acquisition and transfer of the Cheektowaga Property to the Seneca Nation for the purpose of constructing and operating a casino and related facilities there; (ii) enjoins and bars the State Respondents or any of them and/or their agents, employees and anyone acting on their behalf from taking any action in furtherance of constructing, maintaining or operating a Class III gaming facility and/or any related facilities or improvements on a 57± acre tract located in the Town of Cheektowaga east of the Buffalo Niagara International Airport, with frontage on Aero Drive, Holtz Road and Genesee Street, with improvements thereon hitherto known as Airborne Business Park (the Cheektowaga Property), unless and until the State and/or the SGOs have complied with SEQRA. In the interim period, the TRO is converted to a permanent injunction, and the State and the State Gaming Officials, their agents, employees and/or any person acting on their behalf are restrained until further order of the Court upon the State's compliance with SEQRA from taking any action in furtherance of, or which relates to, the acquisition and transfer of the Cheektowaga property to the Seneca Nation of Indians for the purpose of construction, establishment or operation of a Type III casino and related facilities thereon; the Town of Cheektowaga, the Town Board, and their agents, including Supervisor Gabryszak, their agents, employees and/or any person acting on their behalf are restrained from taking any action in furtherance of, or which relates to, the acquisition and transfer of the Cheektowaga Property to the Seneca Nation for the purpose of construction, establishment or operation of a Type III casino and related facilities thereon; and Respondent Uniland Partnership L.P. n/k/a the Uniland Partnership of Delaware L.P. d/b/a Uniland Development Company (Uniland) is restrained from transferring the Cheektowaga Property to the Seneca Nation or to any entity or person acting as a representative of, or on behalf of, the Seneca Nation for the purpose of construction, establishment or operation of a Type III casino and related facilities thereon. Finally, the Court dismisses the counterclaim asserted by Uniland, and denies Petitioners' motion for attorneys' fees and costs.
ORDER[*35]
This Memorandum Decision constitutes the Order of this Court. Petitioners may submit a judgment on notice to Respondents.
Dated: May 25, 2005
HON. JOSEPH G. MAKOWSKI
Justice of the Supreme Court
Footnotes
Footnote 1:1 The memoranda were: (1) Memorandum in Support of Application for an Order to Show Cause, Temporary Restraining Order (TRO), Preliminary Injunction and Judgment (Pet. Memo # 1); (2) Reply Memorandum to the State's Answer with Defenses and Objections in Point of Law (Pet. Memo # 2); (3) Memorandum in Opposition to State's Motion to Modify a TRO (Pet. Memo # 3); (4) Memorandum in Opposition to Uniland's Motion to Dismiss and/or for Summary judgment (Pet. Memo # 4); (5) Memorandum in Opposition to Uniland's Motion to Vacate a TRO (Pet. Memo # 5); (6) Memorandum in Support of Motion for an Order Dismissing Uniland's Counterclaim, Awarding Petitioners their Costs etc. (Pet. Memo # 6) (7) Reply Memorandum in support of Petitioners' Motion for an Order Dismissing Uniland's Counterclaim, etc. (Pet. Memo # 7); and (8) a Reply Memorandum to the Town (Pet. Memo # 8).
Footnote 2:The Parties have not cited nor has the Court located any statute or regulation further defining the duties of the SGOs. It appears that the title "State Gaming Officials" is a generic one used in the Compact at issue here, to define the state officials to whom will be delegated the duties stated in the Compact.
Footnote 3:IGRA provides, with respect to Class III gaming, that such "activities shall be lawful on Indian lands only if such activities are (A) authorized by an ordinance or resolution that(i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands, (ii) meets the requirements of subsection (b) of this section * * *" (25 USC § 2710 [d] [1] [A] [i]- [ii]).
Footnote 4:With respect to the certification by the Governor, Executive Law § 12(a) provides in pertinent part: "Such tribal-state compact shall be deemed ratified by the legislature upon the governor's certification to the temporary president of the senate, the speaker of the assembly, and the secretary of state, that such compact, through its terms, by a memorandum of understanding or other agreement between the state and Nation, by a Nation's ordinance or resolution, by statute, by executive order, or by the terms of any other agreement entered into by or on behalf of the Nation, provides: (i) assurances that the Nation will provide (1) reasonable access to the gaming and related facilities to labor union organizers for purposes of a campaign to solicit employee support for labor union representation; (2) permission for labor union organizers to distribute labor union authorization cards on site for the purpose of soliciting employee support for labor union representation; and (3) recognition of labor unions as the exclusive collective bargaining representatives of employees in appropriate bargaining units based upon a demonstration of majority employee support of such labor unions * * *; (ii) assurances that the Nation has an adequate civil recovery system which guarantees fundamental due process to visitors and guests of the facility and related facilities; and (iii) assurances that the Nation will maintain during the term of the compact sufficient liability insurance to assure that visitors and guests will be compensated for their injuries" (Executive Law § 12 [a]).
Footnote 5:As noted, the statute provides for several exceptions to the prohibition of gaming on lands acquired by the Secretary "in trust for the benefit of an Indian tribe" after October 17, 1988 (see 25 USC § 2719 [b]). One of the exceptions is when lands are taken into trust as part of a settlement of a land claim (see id. 2719 [b] [1] [B] [i]).
Footnote 6:Although Petitioners allege that the land transfer will be subject to Uniland's ability to enter into a "make whole" agreement with the Town, Uniland submitted a letter from Town Attorney Stachowski confirming that the Town has no obligation to agree to any development incentives on behalf of Uniland (see Montante Affid., sworn to on June 16, 2004, Exhibit A).
Footnote 7:Subparagraph 11 (b) (2) (a) of the Compact provides that no later than a certain date, the State, "through the Empire State Development Corporation * * * or otherwise, shall transfer fee title" to the convention center at issue to the Nation for one dollar in funds appropriated by the Settlement Act. Subparagraphs (b) (2) (b) and (c) provide for the Nation to lease the convention center back to the State, and vice versa, until "the Nation constructs and begins operation of" a permanent casino, at which time the Nation will be required to pay the balance of certain pledged bonds to the State.
Footnote 8:IGRA provides, with respect to Class III gaming, that such "activities shall be lawful on Indian lands only if such activities are (A) authorized by an ordinance or resolution that(i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands, (ii) meets the requirements of subsection (b) of this section" (25 USC § 2710 [d] [1] [A] [i]- [ii]). In addition, regulations promulgated pursuant to IGRA require that a Class III gaming ordinance, to be approved by the Chairman of the National Indian Gaming Commission (NIGC), must provide that a tribe "shall construct, maintain and operate a gaming facility in a manner that adequately protects the environment and the public health and safety" (25 CFR 522.4 [b] [7], incorporated into 25 CFR 522.6 [b])
Footnote 9:The State asserts, with respect to the question of ripeness, that the Secretary has not yet given the State the requisite notice to start the thirty-day comment period running, and thus the matter is not justiciable under CPLR article 78 (see Memo in Opp. to Petition at 7-10; Sullivan Affirm., dated June 9, 2004, at 1-2). The Court dealt with the ripeness issue earlier (see supra at pp. 19-22) and will revisit the issue only to recognize that the State's obligation to comment under the Settlement Act has not been invoked and no relief can be afforded to Petitioners solely with respect to that obligation.
Footnote 10:Dissecting the verb tenses used by the drafters of the Compact, the State indicates that the use of the verb form "has agreed", which the State dubs the "past perfect", "obviously cannot refer to some future agreement, but only to something to which the State has already agreed" (see State Memo in Opp. to Petition at 8). In fact, upon research, the Court confirms that the form "has agreed" is a form of the "present perfect" tense, defined by one source as denoting "an action that has been completed at some indefinite time before the present time" (Schertzer, The Elements of Grammar [Macmillan 1986] at 29). The Court finds it clear that the State's obligations under paragraph 11 (b) (3) are all prospective, but the State's agreement to the site must take place before its obligation to assist the Nation with the Settlement Act arises, thus requiring the use of the present perfect tense ("has agreed").
Footnote 11:As noted, the operative facts of the instant case are the development of 57 ± acres of largely raw, undeveloped land as a casino, hotel, and other amenities near the Airport, a stream and a landfill/Superfund site.
Footnote 12:The West Village trial court stated in part:
The first cause of action challenges 6 NYCRR 617.5(c)(37) which designates all actions of the Governor as "Type II" actions thereby excluding them from any SEQRA review. Respondents contend that such exemption is implicit in the statute and necessary in order to avoid violation of the doctrine of separation of powers. * * * It * * * appears that there is no violation of the separation of powers * * *. While certain constitutional powers of the Governor may not be controlled by the Legislature, the constitution provides the Legislature with the authority to control the Executive offices (New York State Constitution, Article 5, Section 3). "It has long been clear that the Legislature retains broad powers over the Executive under the State Constitution" (Methodist Hosp. of Brooklyn v. State Ins. Fund, 102 AD2d 367, 375, 479 N.Y.S.2d 11, affd. 64 NY2d 365, 486 N.Y.S.2d 905, 476 N.E.2d 304).
(Matter of West Village Committee, 171 Misc 2d 454, 457 [Sup Ct Albany County 1996], affd in part & rev'd in part, 242 AD2d 91).
Footnote 13:Although Gaming Corp. dealt with the issue of preemption specifically in order to determine questions of state vs. federal jurisdiction over certain claims (issues not raised on the instant applications), the Eighth Circuit's discussion of IGRA is nonetheless instructive in the instant case.
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