NYS appellate ruling says lower court erred in 2019 case about Shinnecock billboards

A state appellate panel last week ruled that a lower court in 2019 should have granted a request by the state Department of Transportation to halt construction and operation of the Shinnecock Indian Nation’s monument billboards on Sunrise Highway while the case was pending in court.

A majority of the four-judge State Appellate Division ruled Dec. 4 that state Supreme Court at that time should have allowed a preliminary injunction sought by the state under former Gov. Andrew M. Cuomo and the commissioner of the Department of Transportation, which had issued stop-work orders seeking to block construction and operation of the billboards. Gov. Kathy Hochul’s office has continued with the legislation despite tribal requests that it be abandoned.

The tribe defied the state’s stop-work orders and the first of two billboards on Sunrise Highway in Hampton Bays has been operating since 2019 — an important source of income for the federally recognized tribe, members have said.

It’s unclear what impact the appellate ruling will have on the tribe’s operation of the billboards, which continue to operate on the north and south sides of Sunrise Highway in Hampton Bays. A spokesperson for the state Attorney General’s Office, which argued the case for the state, referred questions to the Department of Transportation. DOT spokesman Glenn Blain said in an email the department is "reviewing the decision and considering next steps." 

Tribal officials were in Washington, D.C., on Monday and not immediately available for comment.

The Shinnecock Nation is expected to appeal the case, a tribal source familiar with the case said.

As part of its ruling last week, the Appellate Court panel also rejected fines of as much as $1,000 a day against Shinnecock trustees named in the suit.

“Balancing the risk of financial harm to the [tribe] with the danger to public safety posed by their conduct, we conclude that the balance of equities favors the [state Department of Transportation],” the panel wrote. “Accordingly, the Supreme Court should have granted the plaintiffs’ motion for a preliminary injunction enjoining the [tribal] defendants from constructing, operating, and maintaining the structures during the pendency of this action.”

The judges also concluded that the tribal trustees “may be sued in New York State courts in their official capacities to enjoin their off-reservation, ongoing violations of New York State law.”

But in a dissent included in the appellate order, Judge Deborah A. Dowling argued the Transportation Department “should not be permitted” to block the tribe’s monument enterprise, noting that tribal immunity extends to tribal trustees, not just the tribe.

“The Shinnecock Nation is not named as a defendant in this action,” Dowling wrote. “Instead, the amended complaint names individual members of the Council of Trustees of the Shinnecock Nation … as defendants, sued in their official capacities. A Native American nation’s sovereign immunity extends to its officials acting in their official capacities and within the scope of their authority, including for actions undertaken off-reservation, and a plaintiff may not circumvent a Native American nation’s sovereign immunity by nominally suing its officials.”

The majority opinion relies on an application of law, Dowling concluded, that “authorizes an impermissible exception to Native American nation sovereign immunity which I cannot support.”

The tribe has argued all along that billboards, which have featured state-sponsored ads, are on tribal land known as Westwoods that is part of its sovereign territory and therefore immune from state or local zoning. The tribe is clearing land adjacent to the billboards to construct a roadway and travel-plaza/gas station on part of the 80 acres. The tribe also plans a hotel/convention center on property north of the planned travel plaza.

It is awaiting a federal declaration about its Westwoods property that could obviate contentions about sovereign rights of the 80-acre parcel, which is north of the tribe’s main territory on Shinnecock Bay in Southampton.

Local residents who live around the Westwoods property hailed the Appellate Division ruling as a victory that could have implications for their efforts to slow or stop the gas station by enforcing local zoning laws for construction.

“If the signs should have been enjoined while the litigation was pending over New York State’s rights to regulate, then the same should be done for the gas station,” said Diana Adams, a Hampton Bays resident who said neighbors have written a “demand letter” to Southampton Town to urge it to enforce zoning laws. Adams said construction crews were seen putting down asphalt on a roadway built through the travel plaza site and she provided drone footing showing infrastructure for gas pumps and other equipment.

“Of course, some people want the signs taken down and the gas station closed,” Adams said. “My focus is we just want this to be done right. Who has regulatory oversight?”

The tribe has said it is following federal regulations in building the travel plaza, and it has said the billboards, which haven’t resulted in any roadway accidents, are set back from the road and do not pose a road hazard. 

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.