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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,
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.
MEMORANDUM-DECISION AND ORDER
Presently before the Court are motions for a preliminary injunction in
two actions, Connecticut v. Crotty, 1:01-CV-1719, and Volovar v. Cahill,
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.
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
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
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
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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