10-3115-cv
Canadian St. Regis Band of Mohawk Indians v. Town of Bombay, N.Y.


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 1st day
of June, two thousand twelve.

Present:
            BARRINGTON D. PARKER,
            PETER W. HALL,
            SUSAN L. CARNEY,
                        Circuit Judges.
____________________________________________________

Canadian St. Regis Band of Mohawk Indians, by Lawrence Francis, Chief, and Lloyd Benedict,
Mike Mitchell, Bruce Roudpoint, Joe Jacobs, John Oakes, Angus Bonaparte, Jr., David Benedict,
                                                       Plaintiff-Counter Defendant-Appellee,

St. Regis Mohawk Tribe, by the St. Regis Mohawk Tribal Council, People of the Longhouse at
Akwesane, by the Mohawk Nation Council of Chiefs,
                              Plaintiffs-Consolidated Plaintiffs-Counter Defendants-Appellees,

United States of America,
                                              Plaintiff-Intervenor Plaintiff-Counter Defendant-Appellee,

Jerome Cook, Basil Cook, Cheryl Rourke, Patricia Phillips, Debra Thomas, Sarah David,
Caroline Day,
                                                                                   Plaintiffs,



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– v. –                                                          No. 10-3115-cv

Town of Bombay, NY, County of Franklin, NY,
                         Defendants-Intervenor Defendants-Counter Claimants-Appellants,

Paul Perryon, Helga Perryon, Eva L. Kleinert, Farmer National Bank, Nationwide Mutual
Insurance Company, Marine Midland Properties Corporation, Walsh Realty Corporation, Mario
Cuomo, as Governor of the State of New York,
                                                            Defendants-Intervenor Defendants,

State of New York, Canadian National Railways, Niagara Mohawk Power Corporation, Town of
Massena, NY, Village of Massena, NY, Fort Covington, New York, Town and Village, County
of St. Lawrence, NY,
                                      Defendants-Intervenor Defendants-Counter- Claimants,

Power Authority of the State of New York,
                                       Defendant-Consolidated-Defendant-Counter-Claimant,

Key Bank of North New York, N.A.,
                                    Defendant-Consolidated Defendant-Intervenor Defendant,

William J. Brockway, Loretta Brockway, James Chapman, Mary Chapman, Robert Chapman,
Burton Chapman, Paul Compeau, Catherine Compeau, Real C. Coupal, Thelma B. Coupal,
Harry Grow, Laurent Hebert, Vincent Jerry, Daniel Jerry, Ernest L. Jock, Carrie Jock, Alpha
Latray, Duane Stewart, Kay Stewart, Thomas Torrey, Eloise Torrey,
                                             Consolidated Defendants-Intervenor Defendants.

____________________________________________________

FOR APPELLANTS:             ANGELA C. WINFIELD (Jon P. Devendorf on the brief), Hiscock &
                            Barclay, LLP, Syracuse, New York.

FOR APPELLEES:              Alexandra C. Page, Indian Law Resource Center, Washington
                            D.C., Curtis Berkey, Alexander, Berkey, Williams & Weathers
                            LLP, Berkeley, California, for People of the Longhouse at
                            Akwesane,

                            Harry R. Sachse, Sonosky, Chambers, Sachse, Endreson & Perry,
                            LLP, Washington D.C., for Canadian St. Regis Band of Mohawk
                            Indians,

                            Marsha K. Schmidt, Hobbs, Straus Dean & Walker, LLP,
                            Washington D.C., for St. Regis Mohawk Tribe,


                                             -2-
                        Ignacia S. Moreno, Assistant Attorney General, Michael T. Gray,
                        Environment & Natural Resources Division, U.S. Dep’t of Justice,
                        Washington D.C., for United States of America.
____________________________________________________

       Appeal from the United States District Court for the Northern District of New York

(McCurn, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED,

and DECREED that the appeal is DISMISSED for want of appellate jurisdiction.

       The Town of Bombay, New York, and the County of Franklin, New York (together, the

“Moving Defendants”) appeal from the July 12, 2010, denial of their motion for reconsideration

of the May 13, 2010, order denying the Moving Defendants’ request for an order to show cause

and a temporary restraining order (“TRO”), and from the May 13, 2010, order itself. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal, and we discuss these only as necessary to explain our decision.

       Jurisdiction in this case is disputed. The Moving Defendants premise our jurisdiction on

28 U.S.C. § 1292(a)(1), which provides for immediate review of interlocutory orders “refusing

. . . injunctions.” The Moving Defendants, however, did not move for an injunction; they sought

a TRO and moved for an order to show cause why further relief (i.e., an injunction) should not

be granted.

       “The denial of a TRO is ‘ordinarily not appealable.’” First Eagle SoGen Funds v. Bank

for Int’l Settlements, 252 F.3d 604, 607 (2d Cir. 2001) (quoting Office of Pers. Mgmt. v. Am.

Fed. of Gov’t Emps., AFL-CIO, 473 U.S. 1301, 1303-04 (1985)); see also Romer v. Green Point

Sav. Bank, 27 F.3d 12, 15 (2d Cir. 1994). “A narrow exception has been established where the

district court’s order effectively disposes of the litigation and ‘might have a serious, perhaps

irreparable, consequence, [that] . . . can be effectually challenged only by immediate appeal[.]’”

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First Eagle, 252 F.3d at 607 (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981))

(alterations in the original).

        The Moving Defendants cannot bring themselves within this narrow exception, as the

district court’s order in no way, shape, or form disposed of the underlying litigation. The

underlying litigation involves a land claim to a 12,000-acre parcel of land asserted by certain

Tribal Groups that claim aboriginal title. Around February 2009, a non-party Native American

tribe began occupying a 230-acre parcel of land located within the 12,000-acre parcel subject to

this litigation. The Tribal Groups and the non-party tribe are neither affiliated with each other

nor acting in concert. The Moving Defendants moved for an order to show cause why the non-

party tribe should not be enjoined, under the All Writs Act, 28 U.S.C. § 1651(a), from occupying

the land, and requested a TRO effecting that relief “until final determination of Defendants’

application for an injunction.” Subsequently, the owner of the 230-acre parcel sought and

received in state court a Warrant of Eviction of the non-party tribe, which to date has not been

enforced. The Moving Defendants’ motion was referred to a magistrate judge (Lowe, M.J.) who

recommended the district court deny the motion because the intrusion was de minimis and

because the court retained the ability to grant the relief requested at a later point in time. The

court also noted that there existed alternative, state law remedies, e.g., the Warrant of Eviction,

the existence of which generally precludes use of the All Writs Act to effectuate the same relief.

Clinton v. Goldsmith, 526 U.S. 529, 537-38 (1999). After reviewing the magistrate judge’s

Report and Recommendation, the district court accepted it and denied the motion for a TRO and

order to show cause. The Moving Parties filed a motion for reconsideration based on newly

discovered evidence, which the district court also denied.


                                                 -4-
       Contrary to the Moving Defendants’ assertion, the district court’s order does not dispose

of the litigation by “effectively award[ing] the property to the [non-party].” In fact, the district

court contemplated granting the Moving Defendants their requested relief at some point in the

future, and the litigation continues in the district court. Moreover, we fail to see the “serious,

perhaps irreparable, consequence,” Carson, 450 U.S. at 84, of the district court’s denial when

this appeal was once in default based on the Moving Defendants’ failure to file its forms C and D

. No. 5] and the appeal was withdrawn for nearly one year before being reinstated. We therefore

dismiss the appeal for lack of appellate jurisdiction.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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