Unkechaug Indian Nation v. N.Y. State Dep't of Envtl. Conservation

677 F.Supp.3d 137

UNKECHAUG INDIAN NATION and Harry B. Wallace, Plaintiffs, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATIONand Basil Seggos in his official capacity as the Commissioner of the New York StateDepartment of Environmental Conservation, Defendants.

18-CV-1132 (WFK) (AYS)

United States District Court, E.D. New York

Signed June 16, 2023

James Francis Simermeyer, II, James Simermeyer, Law Offices of James F. Simermeyer P.C., East Elmhurst, NY, for Plaintiffs.

Benjamin D. Liebowitz, James M. Thompson, Office of the New York State Attorney General, New York, NY, for Defendants.

DECISION & ORDER

WILLIAM F. KUNTZ, II, United States District Judge:

Unkechaug Indian Nation (the "Nation") and Harry B. Wallace (collectively, "Plaintiffs") bring this action pursuant to 25 U.S.C. § 2201 and Fed. R. Civ. P. 65 seeking a permanent injunction and declaratory judgment against the New York State Department of Environmental Conservation ("NYSDEC") and Basil Seggos, the NYSDEC Commissioner (collectively, "Defendants"). In the Complaint filed on February 21, 2018, Plaintiffs allege NYSDEC's regulations unlawfully interfere with Plaintiffs' fishing rights in designated Reservation areas and in customary fishing waters. ECF No. 1. Specifically, Plaintiffs argue their fishing rights are protected by treaty and enforceable against NYSDEC, NYSDEC's regulations are preempted by federal law, and NYSDEC's regulations interfere with tribal self-government and impair Plaintiffs' freedom of religious expression. On October 1, 2021, Defendants and Plaintiffs filed fully-briefed cross-motions for summary judgment pursuant to Fed. R. Civ. P. 56. ECF Nos. 98, 104. For the reasons stated below, Defendants' Motion for Summary Judgment at ECF No. 98 is GRANTED and Plaintiffs' Motion for Summary Judgment at ECF No. 104 is DENIED.

BACKGROUND

The Unkechaug Indian Nation (the "Nation") is recognized under both federal and New York state law. See Compl. ¶ 2 (citing Gristede's Foods, Inc. v. Unkechuage Nation, 660 F. Supp. 2d 442, 469-70 (E.D.N.Y. 2009) (Matsumoto, J.)); N.Y. Indian Law § 2. On February 21, 2018, the Nation and its chief, Harry B. Wallace ("Chief Wallace"), (collectively, "Plaintiffs") filed a Complaint against the New York State Department of Environmental Conservation ("NYSDEC") and Basil Seggos, the NYSDEC Commissioner (collectively, "Defendants"). See Compl. ¶ 1, ECF No. 1. Plaintiffs bring this action pursuant to 25 U.S.C. § 2201 and Fed. R. Civ. P. 65, seeking a judgment from this Court that they are not subject to Defendant NYSDEC's regulations and enforcement authority over fishing in reservation lands and Unkechaug customary fishing waters. Id. Specifically, Plaintiffs challenge Defendants' attempts to regulate, restrict, and criminally prosecute Plaintiffs for fishing in their reservation and customary fishing waters and allege their claims accord with inherent native sovereignty, religious freedom and expression, treaties, and other federal laws. Id.

At the heart of this case is New York State's effort to conserve the American eel (Anguilla rostrata) species. The American eel represents an important resource for both biodiversity and human use. Kerns Dec., ECF No. 101, Ex. 5 at 17. This species possesses significant ecological, cultural, and commercial value and has therefore been the subject of increasingly stringent protection at the federal and state level. The Atlantic States Marine Fisheries Commission ("ASMFC" or "the Commission"), a congressionally authorized interstate regulatory body comprised of scientists and marine policy experts, controls much of the species' oversight protection. See Kerns Dec., Ex. 4 (Atlantic States Marine Fisheries Commission, Interstate Fisheries Management Program Charter).¹

The Commission has tracked trends in the American eel's population over the past few decades. According to ASMFC studies, the American eel population has been steadily declining since the 1990s.² In an attempt to preserve the species' population, the Commission has implemented various regulatory measures. See Kerns Dec., Ex. 4 at 16. The Commission, together with the fifteen Member States which comprise the organization, carry out this mandate by generating Fishery Management Plans ("FMPs"). 16 U.S.C. § 5104(a) (prescribing state implementation of coastal fishery management plans; detailing coastal fishery management plans). The Commission first adopted an FMP pertaining to American eels in the 1990s. See Def's Mot. for Summary Judgment ("Def's Mem."), ECF No. 99 at 20. The FMP statutorily required ASMFC Member States—including New York—to impose fishing regulations with respect to the American eel in an attempt to conserve the species. See 16 U.S.C. § 5104(b) (setting forth state implementation and enforcement obligations) ("Each State identified under [16 U.S.C. § 5104(a)] with respect to a coastal fishery management plan shall implement and enforce the measures of such plan within the timeframe established in the plan.").

Despite the efforts of the Commissions and its Member States, ASMFC reports compiled in 2012 and 2017 confirmed the species' population continued to decline. Id.; see also Kerns Dec., Ex. I at 14-33 (2017 ASMFC American Eel Stock Assessment Update stating the American eel's population is in a "depleted state"). Indeed, the rate of the American eel's population decline has worsened in recent years due to the emergence of a lucrative overseas trade in the species, which has further spurred overfishing. Id. at 10; see also Def's Mem. at 17.

In an effort to combat this precipitous population decline, the ASMFC adopted Addenda III (2013) and IV (2014) to the FMP. See Kerns Dec., Ex. G; H. These new regulations impose greater fishing limitations on American eels, including stricter size and catch restrictions. Id. As an ASMFC Member State, New York is required to adopt and enforce the FMP and the supplemental Addenda thereto pursuant to 16 U.S.C. § 5104. See also Kreshik Dec., ECF No. 102 ¶ 5. Accordingly, the State promulgated N.Y.C.R.R. §§ 10.1 (a) and (b) and 40.1(f) and (i), making it illegal to take or possess American eels less than nine inches long, which includes all juvenile eels, also known as "glass eels." Id.; see also Kerns Dec. ¶ 35.

The State's attempt to regulate fishing, including its ban on taking glass eels in non-reservation customary fishing waters, is at the core of Plaintiffs' case. Plaintiffs claim fishing and whaling have been the Nation's "main economic engine" for "time immemorial." Compl. ¶¶ 2, 28. Plaintiffs also allege Nation members require access to their customary fishing waters to gather crustaceans and shells in order to make wampum³ for religious and cultural uses, and that the State's regulations interfere with this practice. Id. ¶¶ 2, 27.

Throughout their Motion for Summary Judgment, Plaintiffs reiterate fishing's historical, cultural, and economic significance. See Pls. Mot. for Summary Judgment ("Pls. Mot."), ECF No. 104; Memorandum in Support of Pls. Mot. for Summary Judgment ("Pls. Mem."), ECF No. 105. Indeed, in their fully-briefed motion filed October 1, 2021, Plaintiffs challenge Defendants for having subjected Plaintiffs—and Plaintiff Chief Wallace in particular—to threats and fear of criminal prosecution for exercising their right to fish in reservation and customary fishing waters. Id. at 25. In particular, Plaintiffs claim Defendants confiscated fish and fishing equipment from Nation members and issued criminal summonses to other Nation members for fishing on reservation lands and in Unkechaug customary fishing waters. Id. Plaintiffs further allege Hugh Lambert Mclean, an Assistant New York State Attorney General, threatened to criminally prosecute Chief Wallace for unlawfully selling glass eels in violation of New York State's environmental law. Id. at 26.

Plaintiffs detail these accusations further in their Motion for Summary Judgment before the Court. Indeed, Plaintiffs argue they have proved they are likely to succeed on the merits in all causes of action asserted in the Complaint and set forth in their instant motion. That is to say, Plaintiffs argue they have proved:

(i) The NYSDEC regulations are preempted by federal law and impair tribal self-government. Pls. Mem. at 77-80, 109; see also Compl. ¶¶ 34-39;⁴

(ii) The Unkechaug Andros Treaty is enforceable against NYSDEC regulations. Pls. Mem. at 40-77, 107; see also Compl. ¶¶ 55-56;

(iii) NYSDEC Commissioner Seggos and Deputy Commissioner Thomas Berkman violated federal law by enforcing NYSDEC regulations against the Unkechaug contrary to the Nation's treaty rights and federal law. Pls. Mem. at 80-85, 105; see also Compl. ¶¶ 34-39, 42-45; and (iv) The NYSDEC regulations interfere with the Unkechaug's freedom of religion. Pls. Mem. at 110; Compl. ¶¶ 46-53.

On the other hand, Defendants argue:

(i) The NYSDEC's regulations are not preempted. Def's Mem. at 43;

(ii) Plaintiffs are not entitled to relief under the Free Exercise Clause. Id. at 46;

(iii) Plaintiffs are not exempt from NYSDEC's regulations by virtue of the Andros Order, even if the Court were to construe said Order as a treaty. Id. at 55;

(iv) Plaintiffs' sovereignty claims, separate from the Andros Order, also fail. Id. at 67; and

(v) The Andros Order is not a treaty and does not preclude state regulation. Id. at 67.

For the reasons set forth below, this Court finds for Defendants on each of their claims recounted supra in points (i) through (v): NYSDEC's regulations are neither preempted by federal nor state law; the Andros Order and NYSDEC's regulations are reconcilable; and Plaintiffs are not entitled to relief under the Free Exercise Clause of the First Amendment.

LEGAL STANDARD

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law" by citation to materials in the record, including depositions, affidavits,...