     10-4273
     Onondaga Nation v. State of NY

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19th day of October, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                     Chief Judge,
 8                ROBERT A. KATZMANN,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       ONONDAGA NATION,
14                Plaintiff-Appellant,
15
16                    -v.-                                               10-4273-cv
17
18       THE STATE OF NEW YORK, GEORGE PATAKI,
19       IN HIS INDIVIDUAL CAPACITY AND AS GOVERNOR OF
20       NEW YORK STATE, ONONDAGA COUNTY, CITY OF
21       SYRACUSE, HONEYWELL INTERNATIONAL,
22       INC., TRIGEN SYRACUSE ENERGY
23       CORPORATION, CLARK CONCRETE COMPANY,
24       INC., VALLEY REALTY DEVELOPMENT
25       COMPANY, INC., AND HANSON AGGREGATES
26       NORTH AMERICA,
27                  Defendants-Appellees.
28       - - - - - - - - - - - - - - - - - - - -X


                                                  1
 1   FOR APPELLANT:             JOSEPH HEATH, Law Office of Joseph
 2                              Heath, Syracuse, NY (Curtis
 3                              Berkey, Alexandra C. Page,
 4                              Alexander, Berkey, Williams &
 5                              Weathers LLP, Berkeley, CA, on
 6                              the brief).
 7
 8   FOR APPELLEES:             DENISE A. HARTMAN, Assistant
 9                              Solicitor General, for Eric T.
10                              Schneiderman, Attorney General
11                              of the State of New York,
12                              Albany, NY (Barbara D.
13                              Underwood, Solicitor General,
14                              Andrew D. Bing, Deputy Solicitor
15                              General, Albany, NY and Gus P.
16                              Coldebella and Mark S. Puzella,
17                              Goodwin Procter LLP, Boston, MA,
18                              on the brief).
19
20   FOR AMICUS:                Matthew L.M. Fletcher, Michigan
21                              State University College of Law,
22                              East Lansing, MI (Kathryn E.
23                              Fort, Michigan State University
24                              College of Law, East Lansing, MI
25                              and Carrie Garrow, Syracuse
26                              University College of Law,
27                              Syracuse, NY on the brief), for
28                              amicus curiae Indigenous Law and
29                              Policy Center in Support of
30                              Appellant.
31
32        Appeal from a judgment of the United States District
33   Court for the Northern District of New York (Kahn, J.).
34
35        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
36   AND DECREED that the judgment of the district court be
37   AFFIRMED.
38
39        The Onondaga Nation (“Onondaga”) appeals from the
40   judgment of the District Court for the Northern District of
41   New York (Kahn, J.) dismissing its suit. We assume the
42   parties’ familiarity with the underlying facts, the
43   procedural history, and the issues presented for review.
44

                                  2
 1        This Court reviews 12(b)(6) dismissals de novo, taking
 2   “as true all of the allegations in plaintiff[‘s] complaint
 3   and draw[ing] all inferences in favor of the plaintiff[].”
 4   Weixel v. Bd. of Educ., 287 F.3d 138, 145 (2d Cir. 2002).
 5   Dismissal is appropriate if the complaint fails to state a
 6   claim that is “plausible on its face.” Ashcroft v. Iqbal,
 7   556 U.S. 662, 678 (2009). When the district court takes
 8   notice of facts outside a complaint, this Court reviews that
 9   decision under an abuse of discretion standard. Staehr v.
10   Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 424 (2d Cir.
11   2008).
12
13        This appeal is decided on the basis of the equitable
14   bar on recovery of ancestral land in City of Sherrill v.
15   Oneida Indian Nation, 544 U.S. 197 (2005) (“Sherrill”), and
16   this Court’s cases of Cayuga Indian Nation v. Pataki, 413
17   F.3d 266 (2d Cir. 2005) (“Cayuga”) and Oneida Indian Nation
18   v. County of Oneida, 617 F.3d 114 (2010) (“Oneida”). Three
19   specific factors determine when ancestral land claims are
20   foreclosed on equitable grounds: (1) “the length of time at
21   issue between an historical injustice and the present day”;
22   (2) “the disruptive nature of claims long delayed”; and (3)
23   “the degree to which these claims upset the justifiable
24   expectations of individuals and entities far removed from
25   the events giving rise to the plaintiffs’ injury.” Oneida,
26   617 F.3d at 127; see also Sherrill, 544 U.S. at 214, 221
27   (summarizing that the equitable considerations in this area
28   are similar to “doctrines of laches, acquiescence, and
29   impossibility,” and grew from “standards of federal Indian
30   law and federal equity practice”) (internal quotation marks
31   omitted). All three factors support dismissal.
32
33        As to length of time, the district court noted that
34   “approximately 183 years separate the Onondagas’ filing of
35   this action from the most recent occurrence giving rise to
36   their claims.” Onondaga v. New York, No. 5:05-cv-0314, 2010
37   WL 3806492, at *8 (N.D.N.Y. Sept. 22, 2010). The disruptive
38   nature of the claims is indisputable as a matter of law. It
39   is irrelevant that the Onondaga merely seek a declaratory
40   judgment. Oneida held that a declaratory judgment alone--
41   even without a contemporaneous request for an ejectment--
42   would be disruptive. 617 F.3d at 138 (“[T]he applicability
43   of an equitable defense requires consideration of the basic
44   premise of a claim, rather than the particular remedy
45   sought. . . . [T]he ‘disruptiveness [is] inherent in the
46   claim itself’”) (quoting Cayuga, 413 F.3d at 275).

                                  3
 1        As to settled expectations, the district court took
 2   “judicial notice that the contested land has been
 3   extensively populated by non-Indians, such that the land is
 4   predominantly non-Indian today, and has experienced
 5   significant material development by private persons and
 6   enterprises as well as by public entities.” Onondaga, 2010
 7   WL 3806492, at *8. Under the Supreme Court’s Sherrill
 8   precedent, the Government and current occupants of the land
 9   therefore have “justifiable expectations” to ownership. See
10   544 U.S. at 217 (“dramatic changes in the character of the
11   properties” since their transfer to New York creates
12   justifiable expectations about ownership).
13
14        We reject the argument that it was inappropriate for
15   the district court to take judicial notice of population and
16   development at this stage of litigation. Discovery is not
17   needed to ascertain whether the City of Syracuse has been
18   extensively developed and populated over the past 200 years.
19   It was not an abuse of discretion for the trial court to
20   take judicial notice of such obvious facts. See FED R.
21   EVID. 201(b) (judicial notice may be taken of facts that are
22   “generally known”).
23
24        The Onondaga urge that, if permitted to engage in fact
25   discovery, they would show that they have “strongly and
26   persistently protested” both the population and development
27   of their ancestral lands. But evidence of similar
28   protestations did not avail the plaintiffs in Cayuga.
29   There, the district court found “considerable proof as to
30   the Cayuga's efforts, beginning in 1853, and continuing
31   right up until the filing of this lawsuit in 1980, to ‘make
32   their voice heard’ with respect to the sales to the State of
33   their homelands in 1795 and 1807.” Cayuga Indian Nation v.
34   Pataki, 165 F.Supp.2d 266, 354 (N.D.N.Y. 2001), rev’d, 413
35   F.3d 266 (2d Cir. 2005), cert. denied, 547 U.S. 1128 (2006).
36   This Court nevertheless held that the equitable
37   considerations barred a recovery. 413 F.3d at 277-78.
38   Thus, even if the Onondaga showed after discovery that they
39   had strongly and persistently protested, the “standards of
40   federal Indian law and federal equity practice” stemming
41   from Sherrill and its progeny would nonetheless bar their
42   claim. 544 U.S. at 214.
43
44
45


                                  4
1        Finding no merit in the Onondaga’s remaining arguments,
2   we hereby AFFIRM the judgment of the district court.
3
4                              FOR THE COURT:
5                              CATHERINE O’HAGAN WOLFE, CLERK
6
7




                                 5
