NYS seeks contempt ruling against Shinnecock leaders over billboards
The Shinnecock Indian Nation's electronic billboard along Sunrise Highway in Hampton Bays is seen on May 24, 2019. Credit: John Roca
New York State Attorney General Letitia James and the state Department of Transportation have asked a state court judge to hold leaders of the Shinnecock Indian Nation in contempt of court for continuing to operate the tribe’s Sunrise Highway electronic billboards, a move the tribe described as "attempted intimidation."
In motions filed this spring and summer, James’ office, filing on behalf of the Transportation Department, charged that individual members of the nation’s Council of Trustees and three companies connected to the billboards are continuing to operate them despite a court order in December that affirmed a prior preliminary injunction restricting construction and operation of the signs.
In seeking contempt charges, the state acknowledged that it "cannot seek damages, penalties" or other claims against the tribal leaders, as previously decreed by the court. But it asks the court for fines against the billboard companies, which built and maintain the billboards and arrange for advertising. The state is asking the court for the names and addresses of all entities that have advertised on the billboards, a client list that includes New York State, the tribe has noted in response papers.
Shinnecock vice chairman Lance Gumbs blasted the contempt motion as "attempted intimidation," and reiterated the tribe’s claim that a state easement through its Westwoods territory in Hampton Bays, where the signs are located, was obtained illegally through condemnation in 1959, without any compensation for the perpetual use.
WHAT NEWSDAY FOUND
- State Attorney General Letitia James and the Department of Transportation have asked a state judge to hold leaders of the Shinnecock Indian Nation in contempt of court for continuing to operate the tribe’s Sunrise Highway electronic billboards.
- James’ office charged that members of the nation’s Council of Trustees and three companies connected to the billboards are operating them despite a court order that affirmed a prior preliminary injunction.
- Shinnecock vice chairman Lance Gumbs blasted the contempt motion as "attempted intimidation," and reiterated the tribe’s claim that a state easement through its Westwoods territory, where the signs are located, was obtained illegally in 1959.
The move is the latest in a series of legal broadsides by the state and the Town of Southampton, which has separately filed suit to stop construction of a gas station travel plaza on the same property. The town and the state have even challenged a federal affirmation of Westwoods as restricted, sovereign tribal land, a move rejected by the federal Interior Board of Indian Appeals.
"They got everything and now they’re trying to take away our future," Shinnecock business owner Chuck Randall said of the efforts to stall tribal economic developments.
The state in its papers allege Shinnecock leaders and the companies "have ignored [court] mandates by continuing to operate the billboards on both sides of Sunrise Highway every day since the entry of the Appellate Division order ... As the billboards continue to operate and display advertisements, the evidence therefore demonstrates that the defendants continue to engage in persistent violations of the preliminary injunction."
The Shinnecock nation, in papers seeking to dismiss the state’s action, argued that the federally recognized sovereign nation "cannot and [does] not accept that this court has jurisdiction in this matter," a charge they have made in the town’s efforts to stall the gas station.
In January, the federal Bureau of Indian Affairs affirmed that the 84-acre Westwoods parcel in Hampton Bays has been part of the tribe’s aboriginal land for "time immemorial," with "restricted-fee" status that only an act of Congress could alter.
"There is no basis to enforce state regulation on the nation’s federally recognized land ... The state does not come close to meeting the burden required for a finding of civil contempt where it encouraged the conduct and seeks to impose fines on persons or entities that have no control over the signs or this project," lawyers for the tribe wrote in a July motion.
A spokeswoman for the state attorney general noted the office is representing the Department of Transportation and the governor’s office as the state’s attorney, adding, "We defer to them for any comment on the case." DOT declined to comment on ongoing litigation, and Hochul’s office didn’t respond.
In explaining the urgency of the contempt motion, the state alleges the "presence of the massive, fixed objects just feet off the edge of the pavement may present a lethal hazard to drivers that inadvertently leave the road." The tribe said there have been no accidents and the billboards are designed to meet strict construction and safety standards.
Gumbs said the state should be negotiating with the tribe over the state’s use of Westwoods land to complete Sunrise Highway rather than continuing to wage an expensive legal fight.
Among exhibits in the motions are papers the state filed with the Bureau of Indian Affairs seeking to overturn the decision affirming Westwoods’ restricted status. In the papers, the state acknowledges the weight of the decision, given that the 1959 easement it created through Westwoods to complete Sunrise Highway gave the state "highway operation and property rights" to the property.
Gumbs called the state’s claim of property rights on Westwoods an "illegal easement" because it violated the Non-Intercourse Act requiring an act of Congress for condemnation and taking of tribal lands.
"There was no compensation anywhere for the taking of our land," he said. "We need that roadway just as much as anybody else needs it" for the travel plaza. "We’re not looking to shut it down, but we are looking to be justly compensated for the easement, just as we were by PSEG Long Island when they ran power lines through it," he said.
The state was unsuccessful in an attempt to appeal the federal affirmation of the restricted status of Westwoods. It also is asking the state court for discovery material for its lawsuit against the tribe, seeking information on "how the billboards were designed and installed, and whether they complied with acceptable engineering and structural standards."
In its contempt motion, the state cited a December ruling by State Supreme Court Justice Maureen Liccione, ordering that "unless the preliminary injunction contained in the [Appellate Division] Second Department’s order and decision is vacated or stayed pending reargument or appeal, it is in effect and the subject structures cannot be constructed, operated or maintained."
The Seneca Nation of upstate New York is suing the state charging that it illegally negotiated an easement through 2.7 miles of its territory in the 1950s for $75,000, without receiving the consent of Congress, as required. The Senecas have said a starting point for negotiations with the state could be $21 million a year, based on state findings.
Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.
