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April 17, 1991


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.

Normally, monetary damages do not constitute irreparable harm. However, the Court of Appeals has recognized that, where such damages cannot be later collected because the defendant enjoys eleventh amendment immunity, the damages become irreparable. United States v. State of New York, 708 F.2d 92, 93 (2d Cir. 1983). While it is true that plaintiffs could sue in New York State courts for the monetary damages, the Court of Appeals has stated that this does not eliminate the "irreparability" because "in deciding whether a federal plaintiff has an available remedy at law that would make injunctive relief unavailable, federal courts may consider only the available federal legal remedies." Id.

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 ...

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