Case: Document: Page: 1 Date Filed: 12/03/2009 UNITED STATE COURT OF APPEALS FOR THE THIRD CIRCUIT NO

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1 Case: Document: Page: 1 Date Filed: 12/03/2009 UNITED STATE COURT OF APPEALS FOR THE THIRD CIRCUIT NO UNALACHTIGO BAND OF THE ) Civil Action NANTICOKE-LENNI LENAPE ) NATION ) ) Plaintiff, ) On Appeal From a Final ) Order of the United States ) District Court for the v. ) District of New Jersey ) ) STATE OF NEW JERSEY, et al., ) Sat Below: ) Hon. Joseph H. Rodriguez, U.S.D.J. ) Defendants-Appellees and STOCKBRIDGE-MUNSEE COMMUNITY, ) Intervenor-Appellant ) BRIEF IN OPPOSITION TO APPEAL ON BEHALF OF DEFENDANTS-APPELLEES Lewis A. Scheindlin Assistant Attorney General Of Counsel ANNE MILGRAM ATTORNEY GENERAL OF NEW JERSEY Attorney for Defendant-Appellees State of New Jersey and Governor Jon Corzine R.J. Hughes Justice Complex P.O. Box 112, 25 Market Street Trenton, New Jersey (609) Ellen M. Hale Deputy Attorney General on the Brief

2 Case: Document: Page: 2 Date Filed: 12/03/2009 TABLE OF CONTENTS PAGE COUNTERSTATEMENT OF ISSUE PRESENTED FOR REVIEW COUNTERSTATEMENT OF CASE COUNTERSTATEMENT OF RELATED CASES AND PROCEEDINGS COUNTERSUMMARY OF ARGUMENT ARGUMENT THIS COURT SHOULD AFFIRM THE JUDGMENT BECAUSE THE PLAINTIFF LACKED STANDING AND THEREFORE, THE JUDGMENT BELOW DISMISSING THE COMPLAINT WAS CORRECT AND THIS COURT SHOULD NOT REVIEW THE INTERVENOR-APPELLANT S HYPOTHETICAL ARGUMENTS CONCERNING WHETHER IT HAD STANDING TO INTERVENE CONCLUSION CERTIFICATION OF BAR MEMBERSHIP CERTIFICATION OF SERVICE CERTIFICATION OF COMPLIANCE WITH RULE 32(a)(7)(B) CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 31.1(C) CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 31.1(C) i

3 Case: Document: Page: 3 Date Filed: 12/03/2009 TABLE OF AUTHORITIES CASES ACLU v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996) , 5 Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984) , 4, 6, 7 Associated Builders & Contractors v. Perry, 16 F.3d 688 (6th Cir. 1994) Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) Diamond v. Charles, 476 U.S. 54, 106 S. Ct. 1697, 90 L. Ed. 2d 48 (1986) Fuller v. Volk, 351 F.2d 323 (3d Cir. 1965) Hackner v. Guaranty Trust Co., 117 F.2d 95 (2nd Cir.) cert. denied, 313 U.S. 559, 61 S.Ct. 835, 85 L. Ed (1941) , 8 Helvering v. Gowran, 302 U.S. 238 (1937) , 5 Myers v. American Dental Assoc., 695 F.2d 716 (3d Cir. 1982) , 5 Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S. Ct. 1177, 94 L. Ed. 2d 389 (1987) Trbovich v. United Mine Workers, 404 U.S. 528, 92 S. Ct. 630, 30 L. Ed. 2d 686 (1972) United States v. Van, 931 F.2d 384 (6th Cir. 1991) Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) STATUTES 25 U.S.C. 177 (2001) ii

4 Case: Document: Page: 4 Date Filed: 12/03/2009 RULES Rule 19(a) iii

5 Case: Document: Page: 5 Date Filed: 12/03/2009 COUNTERSTATEMENT OF ISSUE PRESENTED FOR REVIEW Whether this Court should affirm the judgment because it is undisputed that Plaintiff Unalachtigo lacked standing, and therefore, the judgment below dismissing the Amended Complaint was correct and this Court should not review the intervenor-appellant s hypothetical arguments concerning whether it had standing to intervene. COUNTERSTATEMENT OF THE CASE Plaintiff Unalachtigo Band of Nanticoke-Lenni Lenape Nation ( Unalachtigo ), an Indian group not recognized by the United States or the State of New Jersey filed a complaint originally against the County of Burlington and Burlington County officials, seeking possession of the Brotherton Indian Reservation, an area located within Shamong Township, New Jersey, occupied by singlefamily dwellings and businesses. Asserting its claim through the Nonintercourse Act ( Act ), 25 U.S.C. 177 (2001), the Unalachtigo alleged that New Jersey s sale of the reservation in 1802 violated the Act because the sale of Indian lands is void if it is without Congressional consent. Intervenor-Appellee, Stockbridge-Munsee Community, Band of Mohican Indians ( Stockbridge ) intervened as a defendant for the sole purpose of seeking dismissal of the Amended Complaint for failure to join it as an indispensible party claiming sovereign immunity. Stockbridge claimed that the Brotherton Indians who sold their reservation in 1802, moved to Stockbridge s reservation,

6 Case: Document: Page: 6 Date Filed: 12/03/2009 merging their government and membership with Stockbridge. As such, Stockbridge claimed that it was the successor in interest to the Brotherton reservation. However, it did not claim an interest in the land of the Brotherton Reservation, and did not move to address its interests on the merits. Prior to rendering a decision on Stockbridge s Rule 19 motion, plaintiff amended the Complaint to name the State of New Jersey and Governor Jon S. Corzine ( State defendants ) and dismissed as to the other Burlington County defendants. The State defendants filed a Motion to Dismiss based upon Eleventh Amendment immunity as well as other defenses. However, the State defendants withdrew their motion to dismiss without prejudice in order for the District Court to resolve the intervenor s motion. The State defendants did not participate in the Rule 19 Motion, nor in the hearing regarding the different proofs offered by plaintiff or Stockbridge regarding their successor in interest claims. On May 20, 2008, the District Court denied Stockbridge s motion under Rule 19 and dismissed the Plaintiff s case for lack of standing. (App.6a). Both Unalachtigo and Stockbridge appealed the Court s Order. However, the Unalachtigo was unable to obtain counsel, and its appeal was therefore dismissed. Stockbridge does not challenge the District Court s dismissal of the Amended Complaint, but instead requests this Court to reverse the District Court s ruling that because it is not 2

7 Case: Document: Page: 7 Date Filed: 12/03/2009 Brotherton s successor, it was not an indispensible party pursuant to Rule 19(a). COUNTERSTATEMENT OF RELATED CASES AND PROCEEDINGS There are no related cases or proceedings in this matter. COUNTERSUMMARY OF ARGUMENT The State opposes this appeal because there is no case or controversy as a result of the dismissal of the Plaintiff Unalachtigo s Amended Complaint. The District Court dismissed the Amended Complaint for Unalachtigo s lack of standing, and Unalachtigo s appeal to this Court was dismissed. As such, there is no case or controversy and no reason for intervention by Stockbridge. Although Stockbridge does not agree with the District Court s reasoning for denial of its Rule 19 motion, when the District Court s judgment is correct, this Court must affirm even if the district court relied on a wrong ground or gave a wrong reason. Helvering v. Gowran, 302 U.S. 238, 245 (1937); ACLU v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996); Myers v. American Dental Assoc., 695 F.2d 716, 725 (3d Cir. 1982). Moreover, Stockbridge lacks standing to pursue this appeal. Article III of the Constitution confines federal courts to adjudicating actual cases or controversies. Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). Because the District Court dismissed the Amended Complaint, there is no 3

8 Case: Document: Page: 8 Date Filed: 12/03/2009 case in controversy. The appellant "must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Id. at 751. Here, there are no assertions that the State defendants engaged in unlawful conduct toward Stockbridge or that the alleged actions can be redressed by the requested relief. The requested relief was for dismissal of the Amended Complaint and this relief was granted. Accordingly, the district court properly found that the plaintiff, Unalachtigo, lacked standing and dismissed the Amended Complaint. The Third Circuit cannot review Stockbridge s abstract arguments as to how, in its view, the court below should have resolved the Rule 19 motion. The inescapable fact is that the Plaintiff s Amended Complaint was dismissed and there is no live issue on appeal. ARGUMENT THIS COURT SHOULD AFFIRM THE JUDGMENT BECAUSE THE PLAINTIFF LACKED STANDING AND THEREFORE, THE JUDGMENT BELOW DISMISSING THE COMPLAINT WAS CORRECT AND THIS COURT SHOULD NOT REVIEW THE INTERVENOR-APPELLANT S HYPOTHETICAL ARGUMENTS CONCERNING WHETHER IT HAD STANDING TO INTERVENE. As agreed upon by all interested parties in this appeal, the district court properly found that the plaintiff, Unalachtigo, lacked standing to bring this law suit, and that the District Court properly dismissed the Amended Complaint. Therefore, it was not 4

9 Case: Document: Page: 9 Date Filed: 12/03/2009 necessary for the District Court to find Stockbridge as an indispensible party. As such, the District Court properly denied Stockbridge s Rule 19 Motion. (App. 6a). Stockbridge asserts in its brief that the District Court incorrectly found that it lacked standing because it was not a successor in interest, and dismissed its Rule 19 motion in error. However, regardless of the reasons expressed by the District Court, Stockbridge obtained the result that it originally moved for - dismissal of the Amended Complaint. When the judgment of the District Court is correct, this Court must affirm even if the court relied on a wrong ground or gave a wrong reason. Helvering v. Gowran, 302 U.S. 238, 245 (1937); ACLU v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996); Myers v. American Dental Assoc., 695 F.2d 716, 725 (3d Cir. 1982). Here, no one contends that the judgment below, dismissing Plaintiff s Amended Complaint was incorrect. Thus, regardless of the reasons for the dismissal, the relief granted was proper and the judgment should therefore be affirmed. Indeed, Stockbridge lacks standing to pursue this appeal. "An intervenor need not have the same standing necessary to initiate a lawsuit in order to intervene in an existing district court suit where the plaintiff has standing." Associated Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir. 1994) (citing Trbovich v. United Mine Workers, 404 U.S. 528, , 92 S. Ct. 630, 30 L. Ed. 2d 686 (1972)). The 5

10 Case: Document: Page: 10 Date Filed: 12/03/2009 intervenor normally has the right to appeal an adverse final judgment by a trial court, just as any other party can. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, , 107 S. Ct. 1177, 94 L. Ed. 2d 389 (1987). Nonetheless, an intervenor seeking to appeal, like any other party, must fulfill the requirements of Article III of the Constitution before it can continue to pursue an action in the absence of the party on whose side intervention was permitted. Diamond v. Charles, 476 U.S. 54, 68, 106 S. Ct. 1697, 90 L. Ed. 2d 48 (1986). Accordingly, the standing requirement may bar an appeal even though an intervenor had standing before the district court. United States v. Van, 931 F.2d 384, 387 (6th Cir. 1991). Moreover, Article III of the Constitution confines federal courts to adjudicating actual cases or controversies. Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). The plaintiff "must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Id. at 751. To establish injury in fact, a party must allege "'such a personal stake in the outcome of the controversy' as to warrant his invocation of federal court jurisdiction." Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)). Although the type of injury that conveys standing has not been precisely defined, the alleged 6

11 Case: Document: Page: 11 Date Filed: 12/03/2009 injury must be "distinct and palpable," and "not 'abstract' or 'conjectural' or 'hypothetical.'" Allen v. Wright, 468 U.S. at 751). In the present appeal, due to the dismissal of Plaintiff s Amended Complaint, there is no actual case or controversy. Stockbridge sought dismissal of Plaintiff s Amended Complaint. Moreover, Stockbridge did not claim that any defendant harmed it. As set forth in its brief, Stockbridge did not intervene to bring a claim, but rather had intervened for the purpose of seeking dismissal. (Ab7). As such, there is now no distinct or palpable injury and it received the requested relief. Court held, In Fuller v. Volk, 351 F.2d 323, 328 (3d Cir. 1965) this [i]t is well-settled that since intervention contemplates an existing suit in a court of competent jurisdiction and because intervention is ancillary to the main cause of action, intervention will not be permitted to breathe life into a nonexistent law suit. Fuller also set forth that: [A] court has discretion to treat the pleading of an intervenor as a separate action in order that it might adjudicate the claims raised by the intervenor.... This discretionary procedure is properly utilized in a case in which it appears that the intervenor has a separate and independent basis for jurisdiction and in which failure to adjudicate the claim will result in only unnecessary delay. By allowing the suit to continue with respect to the intervening party, the court can avoid the senseless delay and expense of a new suit, which at long last will merely bring the parties to the point of where they now are. (Quoting Hackner v. Guaranty Trust Co., 117 7

12 Case: Document: Page: 12 Date Filed: 12/03/2009 nd F.2d 95, 98 (2 Cir.) cert. denied, 313 U.S. 559, 61 S.Ct. 835, 85 L. Ed (1941)). [Id. at ]. In this case, however, there is no reason to continue the suit or resuscitate it when the Amended Complaint was dismissed. As clearly set forth in its brief, Stockbridge did not intervene for the purpose of establishing its title to the Brotherton reservation on the merits as did the Unalachtigo. Stockbridge moved to find that it was an indispensible party and as such, the Amended Complaint be dismissed based upon its sovereign immunity. Therefore, the relief requested by Stockbridge was procedural and not upon the merits of the case. There is no justification to continue this case due to the interest of efficiency or to breathe life into a non-existent case. Clearly under the circumstances, the District Court correctly dismissed the Amended Complaint and denied Stockbridge s Rule 19 motion. Because neither the law nor the facts support Stockbridge s basis for appeal, the District Court s decision to dismiss the plaintiff s Amended Complaint for lack of standing and denial of Stockbridge s Rule 19 motion should be affirmed. 8

13 Case: Document: Page: 13 Date Filed: 12/03/2009 CONCLUSION For the reasons stated herein, Defendant-Appellees State of New Jersey and Governor Jon S. Corzine respectfully submit that the judgment of the District Court should be affirmed. Respectfully submitted, ANNE MILGRAM ATTORNEY GENERAL OF NEW JERSEY DATED: December 3, 2009 By: s/ellen Hale Ellen M. Hale Deputy Attorney General 9

14 Case: Document: Page: 14 Date Filed: 12/03/2009 CERTIFICATION OF BAR MEMBERSHIP I certify that I am an attorney in good-standing of the bar of the Third Circuit. s/ Ellen Hale Ellen M. Hale Deputy Attorney General CERTIFICATION OF SERVICE Ellen M. Hale, being of full age, hereby certifies that on December 3, 2009, two copies of the brief on behalf of intervenorappellee upon: Don Miller, Esq. Don B. Miller, PC 1305 Cedar Avenue Boulder, CO Donald B. Veix, Jr., Esq. 131 West State Street Doylestown, PA and Amicus New Jersey Land Title Association Lumurro, Davison, Eastman and Munoz, P.A., Monmouth Executive Center 100 Willow Brook Road, Building 1 Freehold, NJ by depositing same in the U.S. Mail, postage prepaid, at Trenton, New Jersey. 10 s/ellen Hale Ellen M. Hale Deputy Attorney General

15 Case: Document: Page: 15 Date Filed: 12/03/2009 CERTIFICATION OF COMPLIANCE WITH RULE 32(a)(7)(B) I certify that this brief complies with the type-volume limitation of Rule 32(a)(7)(B). The number of words in the brief is 1,860. s/ellen Hale Ellen M. Hale Deputy Attorney General CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 31.1(C) I certify that this brief complies with L.A.R. 31.1(c) in that prior to it being ed to the Court today it was scanned by the following virus detection software and found to be free from computer viruses: Company: Networks Associates Technology, Inc. Product: McAfee VirusScan Enterprise Virus Definitions: 4832 Dated: December 3, 2009 s/ellen Hale Ellen M. Hale Deputy Attorney General 11

16 Case: Document: Page: 16 Date Filed: 12/03/2009 CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 31.1(C) I certify that the text of the paper copies of this brief and the text of the PDF version of this brief filed electronically with the Court today are identical. Dated: December 3, 2009 s/ellen Hale Ellen M. Hale Deputy Attorney General 12