Jurist v. Long Island Power Auth.

Decision Date10 May 2021
Docket Number19-CV-3762 (MKB) (LB)
Citation538 F.Supp.3d 254
Parties Herbert H. JURIST, Susan Johnson, Donald Powers, Linda Jurist, Alena Walters, Robert Slawski, and Steve Walter, Plaintiffs, v. The LONG ISLAND POWER AUTHORITY, the Power Authority of the State of New York, Erik Kulleseid, Commissioner of the New York State Office of Parks Recreation and Historic Preservation, The New York State Office of Parks Recreation and Historic Preservation, the New York State Department of Environmental Conservation ("NYS DEC"), Basil Seggos, Commissioner of NYS DEC, The Bureau of Ocean Energy Management, the New York State Department of State, and the New York State Energy Research and Development Authority, Defendants.
CourtU.S. District Court — Eastern District of New York

Herbert H. Jurist, Freeport, NY, Pro Se.

Susan Johnson, Jamaica, NY, Pro Se.

Donald Powers, Merrick, NY, Pro Se.

Linda Jurist, Freeport, NY, Pro Se.

Alena Walters, Oceanside, NY, Pro Se.

Robert Slawski, Copiague, NY, Pro Se.

Steve Walter, Bayside, NY, Pro Se.

Adam Michael Stolorow, Joyce E. Kung, Sive Paget & Riesel, P.C., New York, NY, for Defendant The Long Island Power Authority.

Eileen P. Flynn, New York Power Authority, White Plains, NY, for Defendant The Power Authority of the State of New York.

Elizabeth Morgan, Mihir Ashok Desai, New York State Office of the Attorney General, New York, NY, for Defendants Erik Kulleseid, The New York State Office of Parks Recreation and Historic Preservation, The New York State Department of Environmental Conservation, Basil Seggos, The New York State Department of State, The New York State Energy Research and Development Authority.

Evan Pays Lestelle, Lestelle & Lestelle, APLC, Metairie, LA, James H. Knapp, United States Attorneys Office Eastern District of New York, Central Islip, NY, Matthew Mailloux, United States Attorney's Office, E.D.N.Y., Brooklyn, NY, for Defendant The Bureau of Ocean Energy Management.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiffs Herbert H. Jurist, Susan Johnson, Donald Powers, Linda Jurist, Alena Walters, Robert Slawski, and Steve Walter,1 proceeding pro se, commenced the above-captioned action on June 3, 2019, in the New York Supreme Court, Nassau County, against Defendants the Bureau of Ocean Energy Management ("BOEM") (a federal agency), the New York State Office of Parks Recreation and Historic Preservation ("Parks"), Parks Commissioner Erik Kulleseid, the New York State Department of Environmental Conservation ("NYS DEC"), NYS DEC Commissioner Basil Seggos, the New York State Department of State, and the New York State Energy Research and Development Authority (collectively, the "State Defendants"), the Long Island Power Authority ("LIPA"), and the Power Authority of the State of New York ("NYPA"). (Notice of Removal ¶ 1, Docket Entry No. 1.) On June 27, 2019, BOEM removed the action to the Eastern District of New York.2 (Id.) Plaintiffs assert claims under various state and federal laws in connection with the construction of an Energy Education Center in Jones Beach State Park. (Verified Pet. & Compl. ("Compl.") ¶¶ 1–3, annexed to Notice of Removal as Ex. A, Docket Entry No. 1-1.)

BOEM, the State Defendants, LIPA, and NYPA separately moved for various reasons to dismiss the action and the Court referred the motions to Magistrate Judge Lois Bloom.3 By report and recommendation dated January 6, 2021, Judge Bloom recommended that the Court grant Defendants’ motions in part and decline to exercise supplemental jurisdiction over the state law claims (the "R&R"). (R&R, Docket Entry No. 88.) Plaintiffs filed objections to the R&R and Defendants have responded to Plaintiffs’ objections.4

For the reasons set forth below, the Court adopts the R&R and (1) grants BOEM's motion to dismiss the action without prejudice for lack of subject matter jurisdiction, (2) grants the motions of the State Defendants, LIPA, and NYPA to dismiss Plaintiffs’ federal-law claims with prejudice, and (3) declines to exercise supplemental jurisdiction over the remaining state-law claims, and remands those claims to New York State Supreme Court, Nassau County.

I. Background
a. Factual background

On June 3, 2019, Plaintiffs commenced an action in the New York Supreme Court, Nassau County, against Defendants. (See generally Compl.) Plaintiffs’ claims arise from the ongoing construction of an Energy Education Center in Jones Beach State Park. (Id. ¶¶ 1–3.) Plaintiffs assert federal-law claims under the Land and Water Conservation Act (the "LWCA"), the Coastal Barrier Resources Act (the "CBRA"), the Coastal Zone Management Act (the "CZMA"), the National Environmental Policy Act (the "NEPA"), and the National Historical Preservation Act (the "NHPA"). (Id. ¶¶ 19–47, 194–235, 262–351, 380–431.) In addition, Plaintiffs assert various state-law claims, including violations of the State Environmental Quality Review Act ("SEQRA"), the Tidal Wetlands Act (the "TWA"), and the State Historical Preservation Act (the "SHPA"), as well as state common law claims for breach of public land trust and parkland alienation and public nuisance. (Id. ¶¶ 48–193, 236–261, 352–415, 432–475.) Plaintiffs allege that LIPA and NYPA plan to develop Jones Beach State Park, which is a serene and undeveloped area that is home to "many rare, endangered, and threatened species of animals," and to construct offshore wind turbines that will spoil their enjoyment of the park. (Id. ¶¶ 8–15.)

BOEM,5 the State Defendants,6 LIPA,7 and NYPA8 separately moved to dismiss for various reasons. On October 12, 2020, the Court referred the motions to Judge Bloom for a R&R. (Order dated Oct. 12, 2020.)

b. The R&R

In the R&R, Judge Bloom recommended that the Court grant BOEM's motion to dismiss for lack of subject matter jurisdiction and grant in part the motions to dismiss by the State Defendants, LIPA, and NYPA, dismiss the federal-law claims, and decline to exercise supplemental jurisdiction over the remaining state-law claims, instead remanding them to state court. (R&R 1–2.)

Judge Bloom concluded that Plaintiffs’ claims against BOEM are not ripe because they are "premised upon the occurrence of an event — the use of the Jones Beach site as a support facility for offshore wind power plants — that may never occur." (Id. at 15–16.) In addition, Judge Bloom found that Plaintiffs do not have standing to sue BOEM because they do not point to any actual or imminent injury that BOEM's action or inaction might cause. (Id. at 17–19.)

In addressing the State Defendants’ claims, Judge Bloom recommended dismissal because the state did not waive Eleventh Amendment immunity, and because there is no statutory basis for concluding that Congress intended to abrogate the State DefendantsEleventh Amendment immunity under any of the statutes at issue. (Id. at 21–22.) Judge Bloom noted that under the Eleventh Amendment, the Court cannot grant Plaintiffs relief under state law or consider claims for declaratory or injunctive relief under federal law against the state-agency defendants. (Id. at 22.) In addition, Judge Bloom noted that, "if at all, the Court may only consider claims for declaratory and injunctive relief under federal law against the individual state officials named as [D]efendants." (Id.)

As to the motions filed by NYPA and LIPA, Judge Bloom found that Plaintiffs had standing to sue NYPA and LIPA, at least under the applicable liberal pleading standard, based on Plaintiffs"sprinkled references to their interests in the affected area" and allegations that Plaintiffs used the park and would be injured by the planned development. (Id. at 22–23.)

However, Judge Bloom recommended that the Court dismiss Plaintiffs’ federal claims against all Defendants for failure to state a claim under federal law because the federal statutes on which Plaintiffs rely — the LWCA, CBRA, CZMA, NEPA, and NHPA — do not provide for private rights of action. (Id. at 23–25.) Because only Plaintiffs’ state-law claims remained,9 Judge Bloom recommended that the Court decline to exercise supplemental jurisdiction over the remaining claims and remand the case to New York State Supreme Court, Nassau County. (Id. at 25–27.)

c. Objections to the R&R

Plaintiffs make several arguments in their objections to the R&R. (See Pls.’ Obj.) First, Plaintiffs argue that they are not bringing claims directly under the federal laws invoked in the Complaint but instead are seeking judicial review "of administrative actions rendered under federal law (or required under federal law to be taken)" pursuant to Article 78, and that Defendants’ actions may be reviewed under Article 78. (Id. at 6–7, 12–13, 15–20.) Second, Plaintiffs argue that New York State waived its sovereign immunity (1) by voluntarily participating in the federal programs at issue, and (2) because the LWCA and other statutes were enacted pursuant to the enforcement clause of the Fourteenth Amendment, and the defense of sovereign immunity does not apply. (Id. at 7–8, 13–14, 20–22.) Third, Plaintiffs argue that New York, in its written coastal management policy, made statements "to the effect that citizens are intended to ensure CZMA-mandated compliance of projects with our State's Coastal Management Policy," and that Judge Bloom erred in relying on George v. New York City Department of City Planning, 436 F.3d 102 (2d Cir. 2006), which drew support from precedents that have since been abrogated and relied on facts that have since changed. (Id. at 9, 34–37.) Fourth, Plaintiffs argue that the Court must remand this case to state court "if any basis upon which dismissal might ... rest in federal court may produce a different result in state court on any of the defenses raised," because "[d]ismissal on a removed action would have the clear effect of imposing federal requirements on state courts." (Id. at 9–10, 44.) Fifth, Plaintiffs argue that Judge Bloom "substantially ignores all claims except those that have been made against BOEM, and appears not to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT