Here:
eminent domain
Federal Court Asks for Additional Briefing re: “Bad Faith” Exception to Tribal Court Exhaustion Doctrine in Grand Canyon Skywalk Case
Here is yesterday’s order:
The court stated:
On the day before oral argument, Plaintiff filed a supplemental statement of facts, including thirteen new exhibits, purportedly showing bad faith on the part of the tribe. Doc. 21. Plaintiff asserted for the first time at oral argument that this new information and the proffered testimony from the chairwoman of the tribal council would show that the bad faith exception applies. See Redwolf, 196 F.3d at 1065 (a party is exempt from exhausting its claims in tribal court where “an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith”).
By raising this issue at the last minute, Plaintiff has provided the Court with no briefing on the contours of the bad faith exception and has afforded Defendants little meaningful opportunity to respond. The Court cannot conclude that the bad faith exception applies on such an incomplete record. Because Plaintiff’s bad faith argument appears to be colorable, the Court will afford the parties an opportunity to brief the issue. The parties should address relevant case law on the bad faith exception, what evidentiary showing of bad faith is required, and the evidence each side claims in support of its position. Because time is important in Plaintiff’s claim, the Court will require the briefing in short order.
Materials are here:
N.Y. Appellate Court Reverses Eminent Domain Acquisition of Land that Includes “Historic Indian Remains”
Here is the opinion in In re Courtland County.
An excerpt:
Petitioner argues that the taking should nevertheless be upheld on the alternative ground that it was exempt from the hearing requirements of EDPL article 2 because the taking was de minimis ( see EDPL 206[D] ). The fact that the amount of land is not substantial does not necessarily render a taking de minimis ( see Matter of Marshall v. Town of Pittsford, 105 A.D.2d 1140, 1140-1141 [1984], lv denied 64 N.Y.2d 606 [1985] ). Initially, we are reluctant to retroactively find compliance with the EDPL under the facts of this case where petitioner opted to attempt to pursue condemnation under a separate statute with different procedures. In any event, we are unpersuaded that this record supports a de minimis determination in light of the close proximity of the project to land with significant historic remains (there are two letters in the record from Native American groups articulating concerns), together with the fact that petitioner expanded the scope of the project from what was originally proposed and such expansion resulted in the State Office of Historic Preservation suspending its earlier approval.
Oneida Indian Tribe v. Village of Hobart – Village Retains Eminent Domain Power over Tribal Fee Lands
The district court issued a long opinion in favor of the Village of Hobart. The briefs are available at the NARF Supreme Court Project site.
Turtle Talk 