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THE STATE OF CONNECTICUT EX REL. BLUMENTHAL v. CROTTY

December 13, 2001

THE STATE OF CONNECTICUT, EX REL. RICHARD BLUMENTHAL, ATTORNEY GENERAL, PLAINTIFF,
v.
ERIN CROTTY, COMMISSIONER OF ENVIRONMENTAL CONSERVATION, AND LARRY JOHNSON, DIRECTOR, DEPARTMENT OF ENVIRONMENTAL CONSERVATION, DIVISION OF LAW ENFORCEMENT, DEFENDANTS. VIVIAN I. VOLOVAR, PLAINTIFF, V. JOHN P. CAHILL, COMMISSIONER OF ENVIRONMENTAL CONSERVATION; DONALD W. BREWER, DIRECTOR, DEPARTMENT OF ENVIRONMENTAL CONSERVATION, DIVISION OF LAW ENFORCEMENT; GORDON COLVIN, DIRECTOR, DEPARTMENT OF ENVIRONMENTAL CONSERVATION, MARINE RESOURCES DIVISION; RICHARD OTTERSTADT; GARY ENRIGHT, ENVIRONMENTAL CONSERVATION OFFICER; AND NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION, DEFENDANTS.



The opinion of the court was delivered by: Frederick J. Scullin, Jr., United States District, Chief Judge.

 
"REQUESTING PRINT PUBLICATION"

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Presently before the Court are motions for a preliminary injunction in two actions, Connecticut v. Crotty, 1:01-CV-1719, and Volovar v. Cahill, 1:99-CV-718.*fn1

The Court heard oral argument in support of, and in opposition to, these motions on December 10, 2001. At the close of argument, the Court reserved decision. The following constitutes the Court's determination of the pending motions.

II. BACKGROUND

In April 1998, the State of Connecticut, as parens partriae, brought suit against the New York Commissioner of Environmental Conservation and the Director of the Division of Law Enforcement for the New York Department of Environmental Conservation, alleging that their continued enforcement of New York Environmental Conservation Law § 13-0329(2)(a), which prohibits non-resident lobstermen from lobstering in New York waters adjacent to Fishers Island, violated the Commerce Clause of the United States Constitution. In May 1999, Vivian Volovar, a Connecticut resident engaged in the lobstering trade, filed a similar suit, alleging that the enforcement of § 13-0329(2)(a) violated the Privileges and Immunities Clause of Article IV, Section 2 of the United States Constitution, the Privileges or Immunities Clause of the Fourteenth Amendment to the United States Constitution, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

On February 2, 2001, this Court entered judgment in favor of the State of Connecticut and Ms. Volovar, finding that the enforcement of § 13-0329(2)(a) violated the Commerce Clause, the Privileges and Immunities Clause, the Privileges or Immunities Clause, and the Equal Protection Clause. See, generally, Memorandum-Decision and Order, dated February 2, 2001. Based upon its findings, the Court enjoined the further enforcement of the discriminatory provisions of § 13-0329(2)(a) and, in Volovar v. Cahill, found that the individual Defendants were not entitled to qualified immunity.*fn2 See id.
On November 5, 2001, Connecticut residents engaged in the lobstering trade, including Ms. Volovar, received a notice that the New York Department of Environmental Conservation ("NYDEC") had adopted emergency regulations, which took effect on November 5, 2001. The notice indicated that the emergency regulations would "remain in effect for a period of 90 days, unless they were extended or adopted permanently by the Department." See Notice to Holders of Commercial Lobster and Food Fish Licenses and other Interested Parties ("Notice") at 1.
The emergency regulations contain several provisions, including one that creates the Fishers Island Special Management Area ("FISMA"), a special management area around Fishers Island, with restrictions on commercial lobstering operations. As stated in the regulations, the purpose of the FISMA is "to protect the reef's lobster population from degradation due to increased fishing pressure, and to maintain the balance that has historically existed among the commercial lobster fishery, the lobster population and the reef community." See Declaration of Gregory J. Nolan, dated December 3, 2001, at Exhibit "A." The emergency regulations also require that "(1) . . . any person commercially fishing lobster pots within FISMA must obtain a special permit to do so, and must not take lobsters from any other waters; . . ." See Notice at 1 (emphasis added). In addition, these regulations restrict the total number of lobster pots each permittee may set in the FISMA as well as the number of lobster pots each permittee may fish on each trawl.
In response to the emergency regulations, the State of Connecticut filed a new action, 1:01-CV-1719, against the same defendants, seeking a declaration that the provision of the emergency regulations that requires that anyone who has a FISMA permit must surrender his rights to take lobsters from any other waters (the "extraterritorial provision") is unconstitutional, void and unenforceable. In addition, the State of Connecticut seeks a temporary and permanent injunction preventing Defendants from enforcing that provision. At the same time that it filed its complaint, the State of Connecticut moved, by order to show cause, for a preliminary injunction. Ms. Volovar also brought a motion, by order to show cause, seeking the same relief.
The specific provision of the emergency regulations at issue is that "(1) . . . any person commercially fishing lobster pots within FISMA must obtain a special permit to do so, and must not take lobsters from any other waters; . . ." See Notice at 1 (emphasis added). According to the emergency regulations, this special requirement will be enforced as follows "c) requirement that all FISMA permit holders fish for lobster only in the FISMA area, and that they fish no more than 300 lobster pots or their current allocation, whichever is less — enforceable as of December 15, 2001; . . ." See id. at 2 (emphasis added). The regulations also require that "(6) [a]ll persons who currently fish pot gear within the boundaries of FISMA must either obtain the FISMA permit or remove their gear from the area by December 15, 2001. Persons who obtain FISMA permits must comply with all requirements of the emergency rule, including removing all gear set in other waters, by January 1, 2002." See id. (emphasis added).*fn3 Finally, under these regulations, although "[i]n 2001, FISMA permits are available to any holder of a N.Y. State Resident or Non-Resident Commercial Lobster Permit[,] [i]n 2002 and thereafter, FISMA permits will only be available to persons who held them during the preceding year." See Notice at 1. Therefore, unless Ms. Volovar and other lobsterers elect to obtain a FISMA permit, and thereby surrender their right to lobster in all other waters, by December 31, 2001, they will be forever barred from lobstering in the FISMA.
In support of their motions for a preliminary injunction, Plaintiffs argue that the extraterritorial provision of the emergency regulations violates the Commerce Clause and that its enforcement will cause ...

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