The opinion of the court was delivered by: Sifton, District Judge.
This is a motion for a preliminary injunction enjoining the
State of New York from enforcing a section of the state's
Environmental Conservation Law.
The following facts are essentially undisputed for purposes
of this motion. The individual plaintiffs in this case operate
a commercial fishing trawler on the Long Island Sound. The
institutional plaintiff is an association representing others
engaged in commercial fishing by trawl. According to the
plaintiffs, there are less than fifty full-time trawlers
currently operating in New York waters. The individual
plaintiffs before this year annually caught up to one hundred
lobsters per day by trawl and sold them commercially. The
individual plaintiffs have been fishing for lobsters along
with finfish for the past ten years, and the sale of lobsters
represents a substantial portion of their income.
The individual plaintiffs fish by dragging a net in the
water behind their boat. Because the net comes on occasion in
contact with or close to the sea floor, some lobsters are
snared by the net and caught. Although the primary purpose of
trawl fishing is to catch finfish, the lobsters caught are
also sold. The alternate method of lobster fishing is "pot"
fishing. This method employs individual lobster traps dropped
on the sea floor. Most lobster fishing in New York waters is
done by "pot" method.
Prior to 1983, New York State placed no limit on the number
of lobsters that persons in the commercial fishing business
could catch and keep. In 1983, Environmental Conservation Law
§ 13-0329(1) was enacted which stated that lobsters could be
fished by either "trawl" or "pot" but that persons fishing by
trawl were limited to one hundred lobsters per day. On January
1, 1991, an amendment to this law went into effect which
prohibited any fishing for lobsters by trawl, requiring those
caught to be returned to the water.
The stated purpose of the new law is to "reduce mortality
and damage rates of lobsters, and to solve much of the illegal
lobster possession problem in the Marine and Coastal
District." (Legislative Bill Jacket, Ex. C of plaintiffs'
affidavit). To this end, the law sought: (1) to have New York
join other states in developing "pot-only" lobster fisheries,
(2) to eliminate trawlers that direct their efforts at
catching lobsters, (3) to protect lobster stocks in Long
Island Sound, and (4) to protect against damage to lobster
pots and seabeds by nets.
Plaintiffs argue that the new law represents an
unconstitutional deprivation of their equal protection and due
process rights and constitutes a Bill of Attainder. They seek
a preliminary injunction, preventing enforcement of the law
until such time as a trial can be held.
The standard in this circuit for obtaining a preliminary
injunction in a case as this requires a showing of (a)
irreparable harm and (b) a likelihood of success on the
merits. Sperry International Trade, Inc. v. Israel, 670 F.2d 8,
11 (2d Cir. 1982) (citing Jackson Dairy, Inc. v. H.P. Hood &
Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)); Medical Society v.
Toia, 560 F.2d 535, 538 (2d Cir. 1977).
According to plaintiffs, they will suffer irreparable harm
if the law is not enjoined, because "it is difficult to
measure the damages that plaintiffs will suffer, and the
defendant cannot answer in damages in the future since he
enjoys Eleventh Amendment immunity." Moreover, the money lost
is said to be vital to plaintiffs' continued existence,
constituting 40% of their income.
In addition, plaintiffs claim that the loss of the profits
will drive them out of business. Where a loss of profits is
severe enough to drive a party out of business, this can be
irreparable harm. Such claims must be bolstered by at least
some "factual support." Bell & Howell v. Masel Supply Co.,
719 F.2d 42 (2d Cir. 1983); Auto Sunroof v. American Sunroof,
639 F. Supp. 1492, 1494 (S.D.N.Y. 1986). Here, plaintiffs state that
40% of their income comes from lobster trawling and that if
they are unable to continue they will not be able to meet
mortgage payments on their boats which will then be seized,
putting them out of business.
Defendant's only argument on this point is its claim that
plaintiffs' delay in seeking a preliminary injunction
undercuts their claim of irreparable harm. However, delay does
not automatically defeat claims of immediacy; rather, it puts
the burden on the moving party to explain the delay.
Hybertech v. Abbott Labs, 849 F.2d 1446, 1457 (2d Cir. 1988);
Citibank N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985).
Here, plaintiffs state that they were not able to obtain
affordable legal counsel until quite recently. In all events,
given the backlog ...