New York State Trawlers Ass'n v. Jorling

Decision Date18 January 1994
Docket NumberNo. 569,D,569
Citation16 F.3d 1303
PartiesNEW YORK STATE TRAWLERS ASSOCIATION, Lauren Ridge and Duncan Ridge, Plaintiffs-Appellants, v. Thomas C. JORLING, Commissioner, New York State Department of Environmental Conservation, Defendant-Appellee. ocket 93-7571.
CourtU.S. Court of Appeals — Second Circuit

Leon Friedman, New York, NY (Erica Horwitz, Richard Ware Levitt, Nicholas Kaizer, Lefcourt & Dratel, of counsel), for plaintiffs-appellants.

Gregory J. Nolan, Assistant Attorney General, New York, NY (Robert Abrams, Attorney General, Andrea Green, Deputy Solicitor General, Leslie Allan, Assistant Attorney General, of counsel), for defendant-appellee.

Before: OAKES, KEARSE and ALTIMARI, Circuit Judges.

OAKES, Senior Circuit Judge:

I. BACKGROUND

In July 1990, New York amended its Environmental Conservation Law to prohibit anyone owning or operating or on board a vessel equipped with trawling nets from taking, landing, or possessing lobsters in Long Island Sound. N.Y.Envtl.Conserv.Law Sec. 13-0329(1) and (2)(c) (McKinney Supp.1993) (the "Amendments"). The Amendments became effective on January 1, 1991.

On April 4, 1991, the New York State Trawlers Association, Lauren Ridge, and Duncan Ridge 1 (the "Trawlers") brought suit against Thomas C. Jorling, Commissioner of the New York State Department of Environmental Conservation. The Trawlers alleged that the Amendments deprived them of their rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. The Trawlers also alleged that the Amendments violated the Constitution's Commerce and Bill of Attainder Clauses. To remedy these alleged deprivations, the Trawlers brought suit pursuant to 42 U.S.C. Sec. 1983 (1988 & Supp.1991) seeking temporary and permanent relief enjoining Jorling, as head of the Department of Environmental Conservation (the "DEC"), from enforcing the Amendments.

On April 17, 1991, the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, denied the Trawlers' motion for a preliminary injunction. New York State Trawlers Ass'n v. Jorling, 764 F.Supp. 24 (E.D.N.Y.), aff'd, 940 F.2d 649 (2d Cir.1991). On May 7, 1993, the district court filed a Memorandum and Order granting Jorling's motion for summary judgment and dismissing the complaint. New York State Trawlers Ass'n v. Jorling, No. CV-91-1180 (E.D.N.Y. May 7, 1993) ("Order"). The Trawlers filed a timely notice of appeal on June 7, 1993. We now affirm.

II. REGULATION OF LOBSTER FISHERIES IN LONG ISLAND SOUND

Section 13-0329 of New York's Environmental Conservation Law governs the taking of lobsters in New York waters. This section provides for both resident and non-resident permits to take lobsters. Resident and non-resident permits are further classified into commercial and non-commercial permits. N.Y.Envtl.Conserv.Law Sec. 13-0329(1) and (2).

Although traditionally caught with lobster pots, lobsters may also be caught with trawl nets dragged close to or along the bottom. In the past, it was not profitable to trawl specifically for lobsters. Instead, trawlers 2 would trawl for finfish. Occasionally, however, a trawlers' net would inadvertently fall close to, or on, the bottom and consequently ensnare some lobsters.

Prior to January 1, 1983, New York State permitted trawlers with lobster permits to keep and sell all the lobsters 3 they caught while trawling for finfish. Gradually, however, the New York legislature became concerned that lobsters caught by trawls were suffering higher mortality rates than lobsters caught by pots or traps. Eventually, these concerns led the legislature to limit trawlers to 100 lobsters per day. N.Y.Envtl.Conserv.Law Sec. 13-0329(1) and (2)(c) (McKinney 1984). This limit was set with the hope of discouraging trawling specifically for lobsters while allowing trawlers to keep lobsters that they might inadvertently catch. The legislature later became concerned, however, that this limit failed to discourage directed trawling for lobsters:

Contrary to the letter and spirit of the law, some trawl boats are being fitted with equipment designed specifically to take lobsters. The Long Island Sound lobster stocks may be unable to support any significant increase in trawl catches.

Scientific studies have shown that trawler activity in key lobster beds can significantly increase mortality and cull (damage) rates among lobsters. This is especially true during molting periods, when lobsters shed their shells to grow and are soft and vulnerable.

Memorandum of Senator Lavalle and Assembly Member DiNapoli (undated). Finally, in July of 1990, the legislature amended N.Y.Envtl.Conserv.Law Sec. 13-0329(1) and (2)(c) to prohibit trawlers from taking, landing, or possessing lobsters altogether. The Amendments became effective January 1, 1991. This litigation ensued shortly thereafter.

III. DISCUSSION

A. Standard of Review

We will affirm a grant of summary judgment only where de novo review of the record and evidence in a light most favorable to the non-moving party reveals that there exists no genuine issue of material fact. Viacom Int'l Inc. v. Icahn, 946 F.2d 998, 1000 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1244, 117 L.Ed.2d 477 (1992). We note that the existence of a factual dispute alone will not warrant reversal, however. We will reverse a grant of summary judgment only where the dispute is regarding a material fact and is "genuine." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986) ("the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact") (emphasis in original). A dispute concerning a material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510; Lang v. Retirement Living Publishing Co., Inc., 949 F.2d 576, 580 (2d Cir.1991).

B. Dormant Commerce Clause

The Trawlers challenge the constitutionality of the Amendments under the so-called "dormant" or "negative" Commerce Clause. Trawlers' Brief at 23-32.

The United States Constitution ascribes to Congress the power "[t]o regulate Commerce ... among the several States." U.S. Const. art. I, Sec. 8, cl. 3. Ascription of this power to Congress limits, by negative implication, the power of the States to interfere with interstate commerce. See, e.g., Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Natural Resources, --- U.S. ----, ----, 112 S.Ct. 2019, 2023, 119 L.Ed.2d 139 (1992). Provided a state does not discriminate against non-residents, however, it may impose incidental burdens on interstate commerce when exercising its police power to promote safety or general welfare. See, e.g., Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970); Laurence Tribe, American Constitutional Law (2d ed. 1988) Secs. 6-3 to 6-5, 408 ("State regulation affecting interstate commerce will be upheld if (a) the regulation is rationally related to a legitimate state end, and (b) the regulatory burden imposed on interstate commerce, and any discrimination against it, are outweighed by the state interest in enforcing the regulation.") (citations omitted).

Although Envtl.Conserv.Law Sec. 13-0239 differentiates between New York residents and non-residents for the purpose of issuing lobster permits, its prohibition of the possession or taking of lobsters by trawlers applies equally to resident and non-resident trawlers. In addition, nothing in Envtl.Conserv.Law Sec. 13-0329 requires non-resident trawlers to violate the law of another jurisdiction. Further, the Amendments neither advance protectionist interests nor shift burdens from New York to other states. We conclude that the statute regulates evenhandedly. 4 We therefore determine first whether the regulation is reasonably related to a legitimate state end and second whether the burden on interstate commerce imposed by the regulation outweighs the state's interest in enforcing the regulation. The Supreme Court in Pike put it this way:

Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

Pike, 397 U.S. at 142, 90 S.Ct. at 847. Summary judgment is appropriate where no reasonable factfinder could find that the statute's "incidental burdens on interstate commerce" are "clearly excessive in relation to the local benefits." The "incidental burdens" are the burdens on interstate commerce that exceed the burdens on intrastate commerce. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471-72, 101 S.Ct. 715, 727-28, 66 L.Ed.2d 659 (1981).

The regulations at issue in this case are rationally related to advancing a legitimate state interest. The protection of the environment and conservation of natural resources--including marine resources are areas of "legitimate local concern." Id. at 471, 101 S.Ct. at 727. See Maine v. Taylor, 477 U.S. 131, 140, 106 S.Ct. 2440, 2448, 91 L.Ed.2d 110 (1986) (upholding facially discriminatory Maine statute prohibiting the importation of out-of-state baitfish); Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 107-109 (2d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993). As Judge Sifton pointed out, the rationality of the legislation may be supported by ample evidence indicating that the mortality rate to lobsters--particularly to the younger ones--from trawling is greater than that occurring to lobsters in the pot fishery. Trawlers, 764 F.Supp. at 27. Even the study most favorable to the plaintiffs indicated that...

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