The opinion of the court was delivered by: MCCURN
MEMORANDUM-DECISION AND ORDER
The plaintiffs have brought this action challenging title 6, section 196.4 of the Code, Rules and Regulations of the State of New York. N.Y. Admin. Code tit. 6, § 196.4 (1982). The challenged regulation prohibits the use of mechanically propelled vessels and aircraft on certain state-owned bodies of water located within the Adirondack State Park. The Adirondack Park contains a mixture of public and private lands interspersed in a "checkerboard" pattern of ownership. New York State owns about 2.3 million acres, and private parties own about 3.7 million acres. See Adirondack Park Agency, Adirondack Park State Land Master Plan, October 1979, at 9, 10. The contested regulation governs the use of mechanized vessels and aircraft on bodies of water located in areas designated as "wilderness", "primitive" and "canoe." The first group of plaintiffs consists of handicapped individuals who allege that because they cannot gain access to these areas without the use of prohibited forms of transportation, the defendant New York Department of Environmental Conservation (DEC) has acted in contravention to their federal constitutional and statutory rights by adopting and implementing § 196.4. Specifically, the complaint alleges a violation of the Rehabilitation Act and alleges a civil rights action pursuant to 42 U.S.C. § 1983 for violation of the Equal Protection and Due Process Clauses of the U.S. Constitution Rehabilitation Act of 1973, § 504, 29 U.S.C. § 794 (1985); U.S. Const. amend. XIV.
Individuals engaged in the business of transporting trappers and fishermen into the Adirondack Park comprise the second group of plaintiffs. They contend that § 196.4 was improperly adopted under the State Environmental Conservation Law and that it violates their federal and state constitutional rights.
Currently before the court are defendant's and intervenor-defendants' motions for summary judgment and plaintiffs' motion to amend the complaint. The court will first consider the merits of the complaint as presently phrased.
The Eleventh Amendment provides that "[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the § United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Private citizens may not maintain an action in federal court against a State itself, or against a state agency, unless the State has waived its sovereign immunity, and this consent must be unequivocally expressed. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 907, 908, 79 L. Ed. 2d 67 (1984). The complaint names the DEC as defendant even though it has not consented to suit in federal court.
The plaintiffs here seek prospective relief only and request a declaration that the DEC's adoption, amendment and implementation of § 196.4 has violated their constitutional and statutory rights.
The DEC is a Department of New York State which the state legislature created to implement the State's environmental policies. See N.Y. Envtl. Conserv. Law § 1-0101 (McKinney 1982). In particular, the legislature has authorized the DEC, together with the Adirondack Park Agency, to develop management plans for the Adirondack Park. N.Y. Exec. Law § 816.- (McKinney 1982). The DEC performs an essential government function in managing state lands; consequently, in this action, the State itself is the real party in interest. See Byram River v. Village of Port Chester, 394 F. Supp. 618, 625 (S.D.N.Y. 1975).
Although Congress has authority to overturn a State's immunity in enacting legislation designed to protect rights secured by the Fourteenth Amendment, see Fitzpatrick v. Bitzer, 427 U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976), the Supreme Court has held that 42 U.S.C. § 1983 does not abrogate Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979), quoted in, Pennhurst, 104 S. Ct. at 907; see also Daisernia v. New York, 582 F. Supp. 792 (N.D.N.Y. 1984). Similarly, Congress' enactment of § 504 of the Rehabilitation Act has not revoked a State's constitutional immunity, see Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985), nor have actions against a State predicated on alleged violations of state law been permitted in federal court. Pennhurst, 104 S. Ct. at 918. Such immunity also bars suits against state agencies. Id. at 908. This jurisdictional bar encompasses not only those actions seeking retroactive relief but also those seeking prospective relief. Consequently, the Eleventh Amendment proscribes the instant action, and the complaint as presently phrased does not pass judicial muster.
Plaintiffs seek to amend their complaint to add the Adirondack Park Agency as a defendant and to add an allegation challenging the validity of title 6, section 196.1 of the Code, Rules and Regulations of the State of New York. In addition, at oral argument, plaintiffs sought permission to name as defendants the state officials responsible for carrying out the provisions of § 196.4 and of § 196.1.
A. Substitution of State Officials as Defendants
Generally, the Eleventh Amendment does not bar suits based on violations of federal law against state officials. When such a suit is commenced, however, the question initially arises as to whether the suit is in actuality against the State itself. If the relief sought against an official would in fact operate against the State, then the action must be characterized as one brought against the State. Pennhurst, 104 S. Ct. at 908. Generally, suits for retroactive relief which require payment out of a State's treasury are barred whereas suits for prospective relief are not barred. See Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); accord Pennhurst, 104 S. Ct. at 909; Dwyer v. Regan, 777 F.2d 825 (2d Cir. 1985). The instant action seeks only declaratory and injunctive relief. Plaintiffs seek no relief in connection with the injunction which would operate against the State directly as would for example, a claim for monetary damages Therefore, proper amendment of the complaint by naming specific state officials may well cure the Eleventh Amendment defect.
Federal Rule of Civil Procedure 15(a) provides that leave t amend a complaint should "be freely given when justice so requires." The DEC and intervenor-defendants have not shown that prejudice will result from allowing the proposed amendment whereas the plaintiffs have demonstrated that a denial will result in great hardship to them because their 29 U.S.C. § 794 and 42 U.S.C. § 1983 claims, as presently phrased, must be dismissed on Eleventh Amendment grounds. See Woods v. Missouri Department of Mental Health, 581 F. Supp. 437 (W.D. Mo. 1984). However, the court may consider the legal sufficiency of a proposed amendment in determining whether to grant or deny it. See Brame v. Ray Willis Finance Corp., 85 F.R.D. 568 (N.D.N.Y. 1979).
Consequently, the court will address the legal sufficiency of the allegations included in the amendment as well as the complaint's present allegations.
C. Legal Sufficiency of the Proposed Amendment
The handicapped plaintiffs allege that § 196.4, which bans the use of mechanized vessels and aircraft on certain bodies of water within the Adirondack Park, and § 196.1, which bans the use of motorized vehicles in specified land areas, render these areas inaccessible to them and thereby ...