Southampton seeks to block Shinnecock gas station, as tribe says state court lacks authority over project

As lawyers for the Town of Southampton argued in court Monday for a pause in work on the Shinnecock Indian Nation’s Sunrise Highway gas station, the tribe filed a separate motion to dismiss the case saying the state court lacked authority to rule.

Both sides were in state Supreme Court in Riverhead Monday, as Judge Maureen Liccione puzzled over the intricacies of U.S. Indian law and appeared resigned to the fact that her rulings would be quickly appealed. The town is seeking a preliminary injunction to stop work on the gas station.

"No matter what happens you’re both going to pounce on it," Liccione said.

The Shinnecock Nation has been working on the 20-bay gas station/travel plaza since last year on its 80-acre Westwoods property in Hampton Bays. Acres of land have been cleared, a long roadway has already been paved and a steel building frame erected.

Some residents have railed against the project, which abuts million-dollar homes more attuned to the property as forest. "I’m a city guy and this is my nirvana," said Charles Forchelli, an attorney whose home abuts the newly cleared plaza. "I was surrounded by woods."

The tribe says building on the parcel is its sovereign right and essential to economic improvement for a nation where most live under the poverty level. Chairwoman Lisa Goree said in affidavits that the plaza will bring the nation some $900,000 a year by 2030.

Even as the case moved forward in Riverhead, the nation on Monday filed a motion to dismiss that argued the state court "lacks jurisdiction" to stop construction because of the land’s federally protected status. They also argued the Shinnecock Nation and the United States are "necessary and indispensable" parties to the suit, yet the town has instead sued tribal leaders individually.

At issue in court was the authority of a recent Department of the Interior finding that the Shinnecock Nation’s Westwoods property has so-called "restricted fee" status, which the tribe argues removes it from state and local zoning and laws. Even the town’s own zoning maps designate Westwoods as "Indian Reservation," according to tribal filings, and the property has never been taxed.

But lawyers for the town argued that the restricted-fee status didn’t give the land the more specialized status of "Indian Country," and they asserted that alleged "breaks in the chain of title" of Westwoods hundreds of years ago technically removed it from federal protections. The town argued Westwoods is zoned residential.

"It may be that Westwoods is restricted fee," said Jason Scherr. "But being restricted fee does not represent Indian Country."

The judge, noting that she did not live in Southampton, often appeared sympathetic to the town’s positions. "I have a real question in my mind whether this is restricted-fee land and whether the status of restricted-fee land exempts it from state and local law," she said, criticizing the Department of the Interior letter as "so bare bones."

Thomas Nitschke, a lawyer for the Shinnecock Nation, argued that Westwoods has been a sovereign tribal holding since before the United States was created and, like the tribe’s federally recognized status granted in 2010, has been that way for "time immemorial."

"This has been Shinnecock land from the beginning and they can use it for whatever they want to," he said of Westwoods, noting there was "literally not a single case in New York where anyone [state or local] has regulated restricted-fee land."

But Liccione asked, "Who would want to wake up every morning to have a gas station almost in your backyard?"

Outside the courtroom, Bryan Polite, former chairman of the Shinnecock council of trustees, expressed outrage at the town’s assertions, calling them "a travesty." 

Polite pointed to the town’s separate approval of a gas station construction project at a 7-Eleven in Hampton Bays despite years of toxic leaks beneath it, saying town officials "should be ashamed of themselves." 

Town Attorney James Burke, in an email, said he was "not aware of the specific issues about the existence of toxic plumes at the Hampton Bays gas station site."

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

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