Silva v. Farrish

• Citation: 47 F.4th 78
• Decision Date: 25 August 2022
• Docket Number: 21-0616,August Term 2021
• Parties: David T. SILVA, Gerrod T. Smith, Jonathan K. Smith, Members of the Shinnecock Indian Nation, Plaintiffs-Appellants, v. Brian FARRISH, Jamie Greenwood, Evan Laczi, New York State Department of Environmental Conservation, Suffolk County District Attorney's Office, Bassil Seggos, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

47 F.4th 78

David T. SILVA, Gerrod T. Smith, Jonathan K. Smith, Members of the Shinnecock Indian Nation, Plaintiffs-Appellants,
v.
Brian FARRISH, Jamie Greenwood, Evan Laczi, New York State Department of Environmental Conservation, Suffolk County District Attorney's Office, Bassil Seggos, Defendants-Appellees.

No. 21-0616
August Term 2021

United States Court of Appeals, Second Circuit.

Argued: March 15, 2022
Decided: August 25, 2022

Scott M. Moore, Moore International Law PLLC, for Plaintiffs-Appellants.

Ari Savitzky, Assistant Solicitor General (Letitia James, Attorney General, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, on the brief), for Defendants-Appellees New York State Department of Environmental Conservation, Brian Farrish, Evan Laczi, and Basil Seggos.

Brian C. Mitchell, Assistant County Attorney (Dennis M. Cohen, Suffolk County Attorney, on the brief), for Defendants-Appellees Suffolk County District Attorney's Office and Jamie Greenwood.

Before: Jacobs, Wesley, and Menashi, Circuit Judges.

Menashi, Circuit Judge:

Plaintiffs-Appellants Gerrod Smith, Jonathan Smith, and David Silva are members of the Shinnecock Indian Nation and reside on the Shinnecock Reservation. They believe that when the Shinnecock ceded land to colonial settlers, the tribe retained the aboriginal right to fish in the Shinnecock Bay without interference and that the Supremacy Clause protects this right from state laws that would abridge it.¹ Over the past decade, however, state officials have ticketed and prosecuted the plaintiffs for violating state laws that regulate fishing in the Shinnecock Bay. Seeking to clarify their fishing rights, the plaintiffs filed this action in the U.S. District Court for the Eastern District of New York against the New York State Department of Environmental Conservation ("DEC"),² several DEC officials in their official and personal capacities,³ the Suffolk County District Attorney's Office, and Assistant District Attorney Jamie Greenwood.⁴

The complaint alleged that the enforcement of state fishing regulations against the plaintiffs in the Shinnecock Bay violates their fishing rights. It also alleged that the defendants’ prior enforcement of state fishing regulations amounted to intentional discrimination in violation of 42 U.S.C. §§ 1981 and 1982. The plaintiffs sought declaratory and injunctive relief to prevent the further enforcement of state fishing regulations against them. The plaintiffs sought monetary damages from the individual defendants based on the allegations of discrimination.

47 F.4th 82

The district court granted summary judgment to the DEC defendants. The district court concluded that state sovereign immunity barred all the claims against the DEC—as well as those against the DEC officials in their official capacities—and that the Ex parte Young exception to state sovereign immunity did not apply. The district court additionally held that the plaintiffs lacked standing to bring their claims for declaratory and injunctive relief and that Younger abstention precluded consideration of Silva's claims for prospective relief. The district court further held that the plaintiffs’ discrimination claims were either time-barred or failed to allege a prima facie case of discrimination.

We hold that Ex parte Young applies to the plaintiffs’ fishing-rights claims against the DEC officials—but not against the DEC itself—because the plaintiffs allege an ongoing violation of federal law and seek prospective relief against state officials. We also hold that the plaintiffs have Article III standing to seek prospective relief and that Younger abstention no longer bars Silva from seeking prospective relief because his criminal proceedings have ended. We therefore conclude that the district court erred in granting summary judgment to the DEC officials on the plaintiffs’ claims for declaratory and injunctive relief. As for the plaintiffs’ discrimination claims, we conclude that the district court properly granted summary judgment to the defendants because there is no evidence in the record that would permit an inference of discriminatory intent. Accordingly, we affirm in part and vacate in part the judgment of the district court. The case is remanded for further proceedings consistent with this opinion.

BACKGROUND

I

The plaintiffs are members of the Shinnecock Indian Nation, a federally recognized Indian tribe, and reside on the Shinnecock Reservation. The plaintiffs believe that, based on certain colonial-era deeds, they have the right to fish in the Shinnecock Bay without interference and that the Supremacy Clause protects that right from state abridgment. Over the past decade, however, the state has ticketed and prosecuted the plaintiffs for violating state laws that regulate fishing in the Shinnecock Bay.

Gerrod Smith was prosecuted in October 2008 for possessing eighteen out-of-season and undersized summer flounder, sixteen out-of-season and undersized porgy, and two undersized blackfish harvested from the Shinnecock Bay in violation of state law. Around the same time, Jonathan Smith received a civil infraction ticket and a criminal summons for operating an "unpermitted aquaculture facility" in the Shinnecock Bay in violation of New York Environmental Conservation Law § 13-0316(2) and for using "improper shellfish tags" in violation of § 13-0319. The cases against Gerrod Smith and Jonathan Smith were ultimately dismissed. In 2017, Silva was charged with fishing without a license as well as unlawful possession of underage eels and possession of eels over the limit. See N.Y. Environmental Conservation Law § 13-0355(3) ; (fishing without a license); 6 N.Y.C.R.R. § 40.1(b)(1)(ii) (undersized eels); id. § 40.1(b)(1)(iii) (eels over the limit).

While Silva's criminal prosecution was pending in state court, the plaintiffs filed this action in the U.S. District Court for the Eastern District of New York. The complaint alleged that certain colonial-era deeds establish the plaintiffs’ "right to fish in the waters of Shinnecock Bay and its estuary," App'x 16, and that the application of state fishing regulations to the

47 F.4th 83

plaintiffs violates those fishing rights. The complaint also alleged that the defendants’ prior enforcement of state fishing regulations amounted to a "continuing pattern and practice of purposeful acts of discrimination based on their race as Native Americans" in violation of 42 U.S.C. §§ 1981 and 1982. App'x 21.

The plaintiffs sought a declaration of their fishing rights and an injunction preventing the defendants from continuing the criminal prosecution against Silva and from otherwise interfering with the plaintiffs’ "use of the waters, fishing, taking fish, and holding fish and shellfish in Shinnecock Bay and its estuary and other usual and customary Shinnecock fishing waters." App'x 22. The plaintiffs sought monetary damages based on the allegations of discrimination.

The plaintiffs moved for a preliminary injunction, and the district court denied their motion. Silva v. Farrish , No. 18-CV-3648S, 2018 WL 8967113, at *4 (E.D.N.Y. July 31, 2018). The district court concluded that Silva failed to show a likelihood of success on the merits and that even if he had, abstention was required under Younger . Id. The district court further held that the Smiths lacked standing because their injuries were "entirely speculative and remote." Id. at *5.

II

The defendants moved to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). The district court referred the motions to a magistrate judge, who recommended dismissing the plaintiffs’ complaint in its entirety. Silva v. Farrish , No. 18-CV-3648S, 2019 WL 117602 (E.D.N.Y. Jan. 7, 2019). The magistrate judge held that state sovereign immunity barred the claims against the DEC and its officials in their official capacities. Id. at *9-12. In so holding, the magistrate judge rejected the plaintiffs’ argument that Ex parte Young authorized their claims for prospective relief. Id. at *9-12. The magistrate judge concluded—as alternative bases for dismissal—that the plaintiffs lacked standing to seek prospective relief, id. at *15 & n.19, and that Younger abstention precluded consideration of Silva's claims for prospective relief, id. at *14. The magistrate judge further held that the plaintiffs’ discrimination claims against the DEC officials in their individual capacities failed to state a claim. Id. at *16.⁵

The district court neither adopted nor rejected the magistrate judge's recommendation but terminated the dismissal motions and set a briefing schedule for summary judgment motions. The district court then referred the summary judgment motions to the magistrate judge for another report and recommendation. The magistrate judge recommended granting summary judgment to the defendants on the claims for declaratory and...