Connecticut ex rel. Blumenthal v. Crotty

• Decision Date: 30 September 2003
• Docket Number: Docket No. 01-7333(CON).,Docket No. 01-7325(L).
• Citation: 346 F.3d 84
• Parties: State of CONNECTICUT, on the relation of Richard BLUMENTHAL in his capacity as Attorney General of the State of Connecticut, Plaintiff-Counter-Defendant-Appellee, Vivian I. Volovar, Plaintiff-Appellee, v. Erin M. CROTTY, in her official capacity as Commissioner, Department of Environmental Conservation<SMALL><SUP>*</SUP></SMALL>, John P. Cahill, individually, Donald W. Brewer, individually and in his official capacity as Director, Department of Environmental Conservation, Division of Law Enforcement, Defendants-Counter-Claimants-Appellants, Gordon C. Colvin, individually and in his official capacity as Director, Department of Environmental Conservation, Marine Resources Division, Richard M. Otterstedt, individually and in his official capacity as Environmental Conservation Officer, Gary A. Enright, individually and in his official capacity as Environmental Conservation Officer, New York State, New York State Department of Environmental Conservation, Defendants-Appellants, State of Connecticut, Amicus Curiae, Fishers Island Lobstermen's Association, Inc., Fishers Island Conservancy, Inc., Movant-Amici Curiae.
• Court: U.S. Court of Appeals — Second Circuit

346 F.3d 84

State of CONNECTICUT, on the relation of Richard BLUMENTHAL in his capacity as Attorney General of the State of Connecticut, Plaintiff-Counter-Defendant-Appellee Vivian I. Volovar, Plaintiff-Appellee, v. Erin M. CROTTY, in her official capacity as Commissioner, Department of Environmental Conservation^*, John P. Cahill, individually, Donald W. Brewer, individually and in his official capacity as Director, Department of Environmental Conservation, Division of Law Enforcement, Defendants-Counter-Claimants-Appellants Gordon C. Colvin, individually and in his official capacity as Director, Department of Environmental Conservation, Marine Resources Division, Richard M. Otterstedt, individually and in his official capacity as Environmental Conservation Officer, Gary A. Enright, individually and in his official capacity as Environmental Conservation Officer, New York State, New York State Department of Environmental Conservation, Defendants-Appellants State of Connecticut, Amicus Curiae Fishers Island Lobstermen's Association, Inc., Fishers Island Conservancy, Inc., Movant-Amici Curiae.

Docket No. 01-7325(L).

Docket No. 01-7333(CON).

United States Court of Appeals, Second Circuit.

Argued: January 10, 2002.

Decided: September 30, 2003.

COPYRIGHT MATERIAL OMITTED

MARK P. KINDALL, Assistant Attorney General, Hartford, CT. (Richard Blumenthal, Conn. State Attorney General, Hartford, CT., on the brief) for Plaintiff-Counter-Defendant-Appellee and Amicus Curiae State of Connecticut.

GEORGE M. PURTILL, Purtill, Purtill & Pfeffer, South Glastonbury, CT., (Seth Jacoby, Purtill, Purtill & Pfeffer, on the brief) for Plaintiff-Appellee Vivian I. Volovar.

GREGORY J. NOLAN, Assistant Attorney General, New York, N.Y., (Eliot Spitzer, N.Y. State Attorney General, Michael Belohlavek, Assistant Solicitor General, Gordon J. Johnson, Assistant Attorney General, New York, N.Y., on the brief) for Defendants-Counter-Claimants-Appellants Erin M. Crotty, John P. Cahill and Donald W. Brewer and Defendants-Appellants, Gordon C. Colvin, Richard M. Otterstedt, Gary A. Enright, and New York State

STEPHEN S. MICHAELS, Debevoise & Plimpton, New York, N.Y. (Robert M. Dickson, Debevoise & Plimpton, New York, N.Y., on the brief) for Movant-Amici Curiae Fishers Island Lobstermen's Association, Inc. and Fishers Island Conservance, Inc.

PETER C.L. ROTH, Assistant Attorney General, Concord, N.H. (Philip T. McLaughlin, N.H. State Attorney General, Concord, N.H., G. Steven Rowe, M.E. State Attorney General, Augusta, M.E., Mark A. Randlett, Assistant Attorney General, Augusta, M.E., Gary Powers, Deputy. Chief Legal Counsel, R.I. Department of Environmental Management, Wakefield, R.I., on the brief) for Amici Curiae State of New Hampshire, State of Maine, and State of Rhode Island.

Before: WALKER, Chief Judge, F.I. PARKER^** and SOTOMAYOR, Circuit Judges.

F.I. PARKER, Circuit Judge.^***

This appeal represents a repeat appearance by a number of the parties before this Court in connection with a challenge to a specific provision in New York's Environmental Conservation Law (also known as the "Fish and Wildlife Law"): the restrictions imposed on nonresident lobstermen who obtain a New York commercial lobstering permit, set forth at N.Y. Envtl. Conserv. Law, section 13-0329(2)(a) (McKinney 1997 & Supp.1999) (the "Nonresident Lobster Law"). In contrast to the previously-resolved threshold jurisdictional questions presented to this Court, see generally Connecticut ex rel. Blumenthal v. Cahill, 217 F.3d 93 (2d Cir.2000) ("Cahill I"), the instant appeal implicates constitutional questions pertaining to the validity of the Nonresident Lobster Law itself.

Defendants-Counter-Claimants-Appellants Erin M. Crotty ("Crotty"), the current Commissioner of New York State's Department of Environmental Conservation ("NYSDEC"), John P. Cahill ("Cahill"), the former NYSDEC Commissioner, and Donald W. Brewer ("Brewer"), Director of the NYSDEC's Law Enforcement Division, as well as Defendants-Appellants Gordon C. Colvin ("Colvin"), Director of NYSDEC's Marine Resources Division, Richard M. Otterstedt ("Otterstedt") and Gary A. Enright ("Enright"), both NYSDEC Environmental Conservation Officers, and the State of New York ("New York"), (collectively "Appellants"), bring the instant appeal. Appellants seek review of a grant of summary judgment by the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge), entered on February 6, 2001, in favor of Plaintiff-Counter-Defendant-Appellee State of Connecticut ("Connecticut") and Plaintiff-Appellee Vivian I. Volovar ("Volovar") (collectively "Appellees"), and a denial of Appellants' cross-motion for summary judgment. The district court granted summary judgment in accordance with the reasoning set forth in its Memorandum-Decision and Order ("Order") issued February 2, 2001. Connecticut, ex rel. Blumenthal v. Cahill, 98-CV-575, 99-CV-718 (FJS/DRH) (N.D.N.Y. Feb. 2, 2001) ("Cahill II").

In granting summary judgment for Appellees, the district court ruled that the Nonresident Lobster Law violates the Commerce Clause, the Privileges and Immunities Clauses, and the Equal Protection Clause of the United States Constitution. Finding the Nonresident Lobster Law unconstitutional, the district court granted Appellees' requests to enjoin its enforcement. The district court also ruled that the Appellants who were sued in their individual capacities were not entitled to qualified immunity and awarded Appellee Volovar monetary relief, the amount of which was to be determined at a subsequent trial on damages.

We agree with the district court that the Nonresident Lobster Law, on its face and as applied, violates the Privileges and Immunities Clause of Article IV, Section 2, Clause 1, of the United States Constitution, as alleged by Appellee Volovar. We, therefore, affirm the district court's grant of summary judgment for Appellee Volovar based on that portion of the Order finding the Nonresident Lobster Law unconstitutional on its face and as applied and enjoining its enforcement. Finding the Nonresident Lobster Law facially unconstitutional under the Privileges and Immunities Clause obviates the need to address Appellee Connecticut's Commerce Clause challenge, which is mooted by our holding. Regarding Appellee Volovar's claim for monetary damages, we disagree with the district court's conclusion that the individual Appellants are not entitled to qualified immunity. We, therefore, reverse the district court's judgment insofar as it pertains to Appellee Volovar's damages claim and enter summary judgment for the individually-named Appellants on qualified immunity grounds.

I. BACKGROUND

A. The Nonresident Lobster Law: Environmental Conservation Law § 13-0329(2)(a)

As we previously noted in Cahill I, the relevant facts are undisputed. 217 F.3d at 96. The Nonresident Lobster Law provides that:

A person not domiciled within the state but who is domiciled in a state that provides reciprocal permits or licenses to persons domiciled in New York State may, upon first obtaining a permit from the department, take and land lobsters only from the waters of the state westerly and southerly of a straight line drawn from the Flashing Green Light Number 9 Whistle Buoy at Cerebus Shoals (located approximately seven miles northwesterly to Montauk Point) northwesterly to Race Rock and thence due north to the New York-Connecticut interstate boundary line; and may land lobsters taken outside New York state waters.

N.Y. Envtl. Conserv. Law, § 13-0329(2)(a) (emphasis added). Thus, the Nonresident Lobster Law creates, among other things, a two-tiered system for commercial lobstering. Lobstermen residing in New York and those residing in States — including Connecticut — that provide reciprocal permits or licenses to New York residents may obtain New York commercial lobstering permits. However, even if granted a permit, non-residents of New York may not take lobsters from a designated area of New York waters in Long Island Sound near Fishers Island (the "Restricted Area"). See N.Y. Envtl. Conserv. Law § 13-0329(1), (2)(a). Fishers Island lies between Block Island Sound and Long Island Sound near the eastern Connecticut coastline, but is part of the State of New York. The record suggests that the Restricted Area provides an exceptionally fertile lobster bed. On this record, it appears the Nonresident Lobster Law, which has been in effect in its current form since 1964,¹ was continually enforced without challenge until 1997.²

B. The Parties

During all pertinent periods in this litigation, Appellant Cahill served as the New York State Commissioner of Environmental Conservation and Appellant Brewer served as NYSDEC's Director of the Division of Law Enforcement. Appellant Colvin served as NYSDEC's Director of Marine Resources Division. Appellants Otterstedt and Enright both served as NYSDEC Environmental Conservation Officers. It is undisputed that, during all pertinent times, the individual Appellants, by virtue of their official positions, were responsible for enforcing the Nonresident Lobster Law.³

Appellee Volovar is a Connecticut resident and a commercial lobsterman.⁴ Since 1978, Volovar has been licensed to take and land lobsters in Connecticut. Pursuant to the Nonresident Lobster Law, Volovar obtained a permit in 1984 to take and land lobsters in the vast majority of New York waters other than the Restricted Area. Appellee Connecticut became involved, acting in parens patriae, on behalf of its own resident lobstermen, including Appellee Volovar⁵, to challenge the Nonresident Lobster Law's permitting restrictions that placed Connecticut lobstermen at a competitive disadvantage relative to New York lobstermen.

Involved in this action as Amici Curiae are the Fishers Island Lobstermen's Association, Inc. ("FILA") and the Fishers Island Conservancy, Inc. ("FIC") (collectively "Fishers Island Amici")....