The opinion
UNITED STATES DISTRICT COURT
FILED
EASTERN DISTRICT OF NEW YORK
CLERK
-----------------------------------------------------------X
DAVID T. SILVA, GERROD T. SMITH, AND 10/3/2025 2:48 pm
JONATHAN K. SMITH, Members of the Shinnecock
U.S. DISTRICT COURT
Indian Nation,
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Plaintiffs,
MEMORANDUM OF
DECISION AND ORDER
-against-
Civil Action
No. 18-3648 (GRB) (SIL)
BRIAN FARRISH, JAMIE GREENWOOD,
EVAN LACZI, BASIL SEGGOS, NEW YORK
STATE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION, and SUFFOLK COUNTY
DISTRICT ATTORNEY’S OFFICE,
Defendants.
-----------------------------------------------------------------X
GARY R. BROWN, United States District Judge:
Presently before this Court are cross-motions for summary judgment pursuant to Federal
Rule of Civil Procedure 56 brought by plaintiffs David Silva, Gerrod Smith, and Jonathan Smith,
who are members of the Shinnecock Indian Nation, and defendants Basil Seggos, Brian Farrish,
and Evan Laczi, all of whom are officers with the New York State Department of Environmental
Conservation. See Docket Entries (“DE”) 161-11, 162-1. Plaintiffs seek (i) a declaratory
judgment that as members of the Shinnecock Indian Nation they retain aboriginal rights to fish in
New York waters and (ii) an injunction against New York state officials to prevent unreasonable
interference with these supposed aboriginal fishing rights. DE 161-11 at 9. For the reasons set
forth herein, defendants’ summary judgment motion is GRANTED and plaintiffs’ summary
judgment motion is DENIED.
Factual Background
This case concerns whether members of the Shinnecock Indian Nation, a federally
recognized Indian tribe, based on the Shinnecock Indian Reservation in Suffolk County, have a
right to fish off-reservation free from state regulations that seek to preserve local fisheries.
In 2017, plaintiff Silva was convicted in New York state court for eel fishing without a
commercial fishing license and for using a fyke net in Shinnecock Bay.1 DE 126-1 ¶ 37. All of
Silva’s predicate conduct occurred outside the boundaries of the Shinnecock Reservation. Id. ¶¶
20, 32-35. The state had prosecuted plaintiff Gerrod Smith in 2008 for illegal possession of
flounder, porgy, and blackfish harvested from Shinnecock Bay. And plaintiff Jonathan Smith had
received a civil infraction ticket and a criminal summons for operating an unpermitted
aquaculture facility in Shinnecock Bay and using improper shellfish tags. These latter two cases
were dismissed. DE 89 at 3.
The State of New York has implemented a variety of regulations to protect aquatic
species, including—and most relevant to this case—the American eel. The Atlantic Coastal
Fisheries Cooperative Management Act (“ACFCMA”) requires states to implement measures
that the Atlantic States Marine Fisheries Commission (“ASMFC”) deems necessary for
conservation of coastal fisheries. DE 162-1 at 38. New York, like every state that borders the
Atlantic Ocean, is a member of the ASMFC. Id. Due to the decreasing American eel population,
the ASMFC developed a fishery management plan (FMP) in 1999 “to ensure the long-term
viability of the population for continued harvest and provide adequate quantities of juveniles and
1 A fyke net is used for trapping fish in shallow waters and consists of several “cone-shaped
netting bags.” See Fishing Gear Type: Fyke Nets, Food and Agriculture Organization of the
United Nations, https://www.fao.org/fishery/en/geartype/226/en.
adults for use by other fish and wildlife resources.” Id. New York implements its obligations
under the American Eel FMP, in part, through the challenged regulations limiting eel fishing. Id.
New York’s interest in maintaining the American eel population is straightforward. The
American eel “is a protected resource, whose population is depleted and at historically low
levels,” in part due to overfishing. DE 126-1 ¶¶ 38, 53. Conservation of eel species is essential
for maintaining food chains in aquatic ecosystems and protecting species for whom eel is an
important food source, such as various fish, birds, and mammals. Id. ¶¶ 78-80. Maintaining an
adequate American eel population supports recreational and commercial fisheries, which in turn
provides direct and indirect employment opportunities in industries such as gear manufacturing,
food processing, and shipping. DE 127-5 at 8.
Plaintiffs filed suit in 2018, arguing that they—as members of the Shinnecock Nation—
have aboriginal rights to fish in Shinnecock Bay. See DE 1. Then-Judge Feuerstein granted
summary judgment to defendants, finding that Silva’s claims were precluded under Younger
abstention, sovereign immunity barred this suit, and Gerrod Smith and Jonathan Smith lacked
standing. See DE 96. The Second Circuit reversed, holding that Younger did not apply, the Ex
Parte Young doctrine provided an exception to sovereign immunity, and the threat of
enforcement of fishing regulations gave Gerrod Smith and Jonathan Smith standing. See Silva v.
Farrish, 47 F.4th 78 (2d Cir. 2022).
Discussion
Standard of Review
This motion for summary judgment is decided under the oft-repeated and well understood
standard for review of such matters, as discussed in Bartels v. Inc. Vill. of Lloyd Harbor, 97 F.
Supp. 3d 198, 211 (E.D.N.Y. 2015), aff’d sub nom. Bartels v. Schwarz, 643 Fed. App’x. 54 (2d
Cir. 2016), which discussion is incorporated by reference herein.
Discussion
Despite the lengthy filings, request for extending page limits in the briefs even after the
Court granted the parties additional pages, DE 135, and submissions by numerous amici, see DE
152; DE 154; DE 159; DE 160, this case remains straightforward. The main question is whether,
regardless of any aboriginal title, the state fishing regulations at issue are reasonable and non-
discriminatory.
Under the doctrine of conservation necessity, “[s]tates can impose reasonable and
nondiscriminatory regulations on an Indian tribe’s treaty-based hunting, fishing, and gathering
rights on state land when necessary for conservation.” Herrera v. Wyoming, 139 S. Ct. 1686,
1695 (2019). The conservation necessity doctrine requires a state to show that “the regulation
meets appropriate standards and does not discriminate against the Indians,” and that “its
regulation is a reasonable and necessary conservation measure, and that its application to the
Indians is necessary in the interest of conservation.” Antoine v. Washington, 420 U.S. 194, 207
(1975). With regard to fishing rights, the Supreme Court has held that “the manner of fishing,
the size of the take, the restriction of commercial fishing, and the like may be regulated by the
State in the interest of conservation, provided the regulation meets appropriate standards and
does not discriminate against the Indians.” Puyallup Tribe v. Dep’t of Game of Wash., 391 U.S.
392, 398 (1968). In a case that the Second Circuit upheld earlier this year, in which members of
the Unkechaug Tribe challenged these same American eel regulations, Judge William Kuntz
granted summary judgment for the state, finding that New York “has a clear interest in
conserving the American eel population, and it has imposed reasonable, non-discriminatory
regulations in furtherance of this interest.” Unkechaug Indian Nation v. New York State Dep’t of
Env’t Conservation, 677 F.Supp.3d 137, 160 (E.D.N.Y. 2023), aff’d sub nom. Unkechaug Indian
Nation v. Seggos, 2025 WL 310163 (2d Cir. Jan. 28, 2025).
Judge Kuntz’s opinion confirms what is evident. The state developed its American eel
fishing regulations pursuant to its obligations under a compact with other states. The regulations
were implemented to ensure biodiversity and maintain food chains, which help other organisms
in those ecosystems survive. Maintaining the eel population—and by extension ensuring the
survival of other fish, mammals, and birds—benefits recreational and commercial fisheries,
which provide employment opportunities and play a vital role in numerous industries. DE 127-5
at 8. Plaintiffs do not dispute that the state applies these regulations in a nondiscriminatory
manner. Accordingly, the conservation necessity doctrine requires that the Court grant summary
judgment for defendants.
While the Court need not reach the question of aboriginal rights, the Court finds then-
District Judge Joseph Bianco’s opinion in New York v. Shinnecock Indian Nation, 523 F. Supp.
2d 185 (E.D.N.Y. 2007), vacated on other grounds, 686 F. 3d 133 (2d Cir. 2012) to be highly
persuasive. Judge Bianco found that 17th century land purchases by British colonists and
subsequent royal proclamations demonstrate an “extinguishment of aboriginal title” in present-
day South Hampton (which is where Shinnecock Bay is located) because “[n]either the language
nor the context of the colonial era documents is ambiguous in any way; rather, the documents
reflect a clear and compelling historical record establishing the sale of the land by the
Shinnecock Nation and the repeated approval and confirmation of this conveyance of title to
Southampton by various New York Provincial Governors, acting under the authority of the
British Crown.” Id. at 265-66. Judge Bianco’s well-reasoned determination undermines
plaintiffs’ arguments that they have aboriginal title to fish in Shinnecock Bay.
Based on the extensive record, the Court finds it undisputed that the eel fishing
regulations at issue have a valid and non-discriminatory purpose. The Court also finds it
undisputed that plaintiffs lack aboriginal fishing rights in Shinnecock Bay.
Conclusion
For the reasons set forth herein, the Court grants defendants’ motion for summary
judgment and denies plaintiffs’ motion for summary judgment.
SO ORDERED.
Dated: Central Islip, New York
October 3, 2025
/s/ Gary R. Brown
GARY R. BROWN
United States District Judge