Soscia Holdings, LLC v. P State of Rhode Island, et al.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

Soscia Holdings, LLC

v. Civil No. 22-cv-266-LM

Opinion No. 2023 DNH 074 P

State of Rhode Island, et al.

ORDER

Soscia Holdings, LLC, brings federal and state claims against the State of

Rhode Island, the Rhode Island Department of Environmental Management

(“DEM”), DEM Director Terrence Gray, and Administrator of DEM Office of

Compliance and Inspection David E. Chopy. Soscia’s claims arise from its operation

of the Flat River Reservoir Dam (“Dam”) in Coventry, Rhode Island. DEM sent

letters to Soscia under a law requiring permits for certain dams, Rhode Island

General Laws § 46-19.1-1 (“Permitting Act”), directing Soscia to reduce the water

flow from the Dam in order to raise the water level in the reservoir created by the

Dam.

Soscia alleges that the Permitting Act is unconstitutional and challenges the

defendants’ actions to enforce it. Soscia brings a claim under the Rhode Island

Constitution and federal claims under 42 U.S.C. § 1983 against Rhode Island, DEM,

Chopy, and Gray and brings state law tort claims against Chopy and Gray.

Defendants move to dismiss based on Eleventh Amendment sovereign immunity,

qualified immunity, abstention principles, and failure to state a cognizable claim.

For the following reasons, the court dismisses all claims brought against the State

of Rhode Island and DEM, the claim brought under the Rhode Island Constitution,

and the § 1983 claims against Chopy and Gray in their individual capacities. The

court does not dismiss the § 1983 claims against Chopy and Gray in their official

capacities, seeking only prospective injunctive relief.

With jurisdictional and quasi-jurisdictional issues resolved, the court has

substantially narrowed Soscia’s federal claims. The court find that this is an

appropriate point to reassess the merits of the remaining claims. The court,

therefore, denies without prejudice that part of the motion seeking dismissal of the

claims on the merits. Defendants may address the merits of the remaining claims

either in a subsequent and newly-briefed motion to dismiss or in a motion for

summary judgment.

STANDARD OF REVIEW

Eleventh Amendment sovereign immunity implicates the court’s jurisdiction,

which the court addresses under Federal Rule of Civil Procedure 12(b)(1).1 Motions

to dismiss under Rule 12(b)(1) may be facial or factual, depending on whether the

1 Defendants also cite Federal Rule of Civil Procedure 12(b)(2), which pertains

to personal jurisdiction. Doc. no. 34-1 at 7. The First Circuit has recognized the

hybrid nature of Eleventh Amendment sovereign immunity, which has similarities

to both subject matter and personal jurisdiction. Maysonet-Robles v. Cabrero, 323

F.3d 43, 50 (1st Cir. 2003). The court need not address that issue here, however,

because defendants make no developed argument of sovereign immunity in the

context of personal jurisdiction. See Valentin v. Hosp. Bella Vista, 254 F.3d 358, 362-

63 (1st Cir. 2001) (stating that the “proper vehicle for challenging subject-matter

jurisdiction, including on the ground of sovereign immunity, is Federal Rule of Civil

Procedure 12(b)(1)); Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (same).

2

motion is based on the complaint alone or is supported by evidence. Laufer v.

Acheson Hotels, LLC, 50 F.4th 259, 265 (1st Cir. 2022). When, as here, defendants

present a facial challenge, the court takes the properly pleaded facts in the

complaint as true and follows the standard used under Federal Rule of Civil

Procedure 12(b)(6). Id. The party invoking the court’s jurisdiction, here the

plaintiff, bears the burden of showing that jurisdiction exists. Aversa v. United

States, 99 F.3d 1200, 1211 (1st Cir. 1996).

Under Rule 12(b)(6), the court asks whether the plaintiff has made

allegations in its pleadings that are sufficient to render its entitlement to relief

plausible. See Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013).

The court accepts all well-pleaded facts as true and draws all reasonable inferences

in the non-moving party's favor. Hamann v. Carpenter, 937 F.3d 86, 88 (1st Cir.

2019). The court, however, disregards “statements in the complaint that simply

offer legal labels and conclusions or merely rehash cause-of-action elements.”

Sonoiki v. Harvard Univ., 37 F.4th 691, 703 (1st Cir. 2022) (internal quotation

marks omitted). In addition to the allegations in the complaint, the court may

consider exhibits submitted with the complaint, official public records, and

documents whose authenticity is not disputed. Douglas v. Hirshon, 63 F.4th 49, 57

(1st Cir. 2023).

BACKGROUND

On January 24, 2023, the court held a hearing on defendants’ motion to

dismiss (doc. no. 34) and Soscia’s motion for a preliminary injunction (doc. no. 5).

3

The court denied Soscia’s motion for a preliminary injunction due to a lack of

irreparable harm and took defendants’ motion to dismiss under advisement.

I. The 1846 Act

The story behind this case began in 1846 when certain owners of mills and

real estate in Coventry, Rhode Island, petitioned the Rhode Island General

Assembly to pass an act of incorporation for the “Quidnick Reservoir Company.”2

Doc. no. 32-3 at 4. The purpose of the corporation was to build dams and reservoirs

on the Pawtuxet River to supply water for their mills. The General Assembly

passed “An Act to Incorporate the Quidnick Reservoir Company” (“1846 Act”):

for the purpose of erecting, establishing, maintaining and

keeping in order dams and reservoirs on the waters of said

Pawtuxet River and its branches; and by that name are and

forever hereafter shall be able and capable in law to hold,

purchase, receive, possess, enjoy and retain to themselves

and their successors, lands, rents, tenements, goods,

chattels and effects of what kind or nature soever.

Id. at 8. Once incorporated, the Quidnick Reservoir Company built the Dam on the

Pawtuxet River that created the Flat River Reservoir, known as Johnson’s Pond. 3

The Rhode Island General Assembly amended the 1846 Act in 1867, 1975,

and 1982. As part of the 1982 amendment, the stated purposes of the Quidnick

2 The Quidnick name apparently was used because Quidnick Pond was located

in the area. Doc. no. 32-3 at 4.

3 The parties have not explained the references to both the Flat River and the

Pawtuxet River. The explanation may be as follows: The Flat River “is formed in

Coventry by the confluence of Sawmill and Pine swamp brooks. The river flows east

to converge with the Big River to form the South Branch Pawtuxet River in the area

now flooded by the Flat River Reservoir.” Flat River (South Branch Pawtuxet River

tributary) - Wikipedia (last visited June 9, 2023).

4

Reservoir Company were: “to erect and establish dams and reservoirs for the

rentention [sic] and preservation of the waters of the Pawtuxet River and its

branches for the benefit of its members; for establishment and operation of hydro

power sites for its members’ uses and resale of power generated therefrom; and any

other legal purposes.” Id. at 20. Section 2 of the 1846 Act, as amended in 1982,

provides that “Quidnick Reservoir Company shall enjoy the other powers generally

incident to corporations and shall be subject to the provisions of Title 7 of the

General Laws of Rhode Island of 1956, as amended, and all acts in amendment

thereof and in addition thereto.”4 Id. at 23.

II. The Coventry Lease

In January 2009, the Town of Coventry, where the Dam is located, leased

Johnson’s Pond and a vacant parcel of land, referred to as Open Space, from

Quidnick Reservoir Company (“Coventry Lease”).5 Under the terms of the Coventry

Lease, Quidnick agreed to maintain the water level in Johnson’s Pond according to

the “Water Level Table,” which is Section 7 of the Lease. The Coventry Lease will

expire on March 31, 2024.

4 Title 7 governs corporations, associations, and partnerships.

5 Soscia states in its objection to the motion to dismiss that Coventry leased

the recreation rights to Johnson’s Pond from Quidnick beginning in 1982.

5

III. Sale to Soscia

In March 2020, Quidnick sold “two parcels of land and water rights” to Soscia

through a purchase and sale agreement (doc. no. 32-1) and a quitclaim deed (doc.

no. 32-2 at 14-16). Quidnick took a mortgage on the property for $1,500,000.00 and

assigned its rents and leases of the property to Soscia. Doc. no. 32-2 at 2-3. Parcel I

of the two parcels of property Quidnick sold is described by its boundaries in the

deed and included approximately 100 acres of land on Flat River Road in Coventry.

Id. at 2 & 15-16. Parcel II is described as “land and water rights commonly known

as Johnson’s Pond, Coventry, Rhode Island.” Parcel II is also described as follows.

Also specifically including in this conveyance any and all

right held by Quidnick Reservoir Company to cover and

flow with water all or so much of any such lands as shall

be consequent upon and caused by the erection and

maintenance of any dam on the Flat River within the

Town of Coventry, and including and hereby conveying

any and all rights that Quidnick Reservoir Company has

or has any claim to in any waters within the Town of

Coventry, including but not limited to Flat River

Reservoir or Johnson’s Pond so-called[.]

It is the purpose and intent of this Deed to convey, and

Quidnick Reservoir Company hereby does convey, to

Soscia Holdings LLC all the right, title, claim and interest

that Quidnick Reservoir Company has in and to any and

all land in the Town of Conventry, and any and all rights,

title, claims and interest that Quidnick Reservoir

Company has in the waters or submerged lands within

the Town of Coventry, including but not limited to the

Flat River Reservoir and Johnson’s Pond, and all flowage

rights, dams, flumes, raceways and other apparatus or

equipment used in connection therewith.

6

Id. at 16. Quidnick assigned its interest in the Coventry Lease to Soscia. Doc. no.

32-5. After the sale and assignment of the Coventry Lease, Soscia sued Coventry in

state court seeking a declaration related to the terms of the Lease.6

IV. Water levels in Johnson’s Pond

At some point after purchasing the property from Quidnick, Soscia increased

the water flow through the Dam, lowering the water level in Johnson’s Pond below

its customary level. The lowered water level exposed muddy banks along the Pond

and decreased the depth of the Pond. In April 2021, David Chopy, Administrator of

the DEM Office of Compliance and Inspection, sent letters to Soscia and Coventry

about water levels in Johnson’s Pond, notifying them that Soscia would need a

permit to operate the Dam with water levels other than those stated in the lease

with Coventry. Chopy also communicated with the United States Geologic Survey-

Water Mission Area in November 2021 about the need for certain flow in the

Pawtuxet River related to grass or weed growth. Doc. no. 32-7.

V. Permitting Act

The Rhode Island General Assembly passed the Permitting Act, which

became effective in June 2022. The Permitting Act requires permits for dams with

certain water retention capacity, which includes the Dam at issue in this case. R.I.

Gen. Laws § 46-19.1-1. Under the Act, the owner or operator of a dam above a

6 The defendants state in their brief that Soscia brought suit against DEM in

state court, Soscia v. RIDEM, P.C.-2021-07254, but did not provide a copy of the

complaint or any specific information about that case. Doc. no. 34-1 at 18.

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certain water capacity must apply to the director of DEM for a permit to raise or

lower the water level behind the dam. Until a permit is issued under the Act, the

owner or operator must operate the dam in a way that is consistent with the

historic use as to water level and streamflow.7 The director of DEM may enforce the

Permitting Act under Rhode Island General Laws § 42-17.6, which provides for

monetary penalties.

On July 11, 2022, Chopy sent Soscia a letter, notifying it that the Dam was

governed by the Permitting Act. Doc. no. 32-7. Chopy included information about

the amounts of water flow through the Dam in the past, which is measured in cubic

feet per second (“cfs”) at different times during the year.8 Chopy stated that if DEM

determined that the Dam was not being operated according to its historic use, DEM

was authorized to fine Scoscia up to $1,000.00 per day for each day of

noncompliance. Chopy explained that DEM’s inspection of the Dam in June and

July showed that its waterflow was inconsistent with its historic use. Chopy stated

that Soscia must reduce the flow to allow the level of water in Johnson’s Pond to

7 During the hearing, counsel for the defendants explained that the

permitting process will not begin until DEM enacts regulations for that purpose. It

is not clear to the court whether a permitting process is in place.

8 Earlier correspondence from DEM to Soscia and Coventry, which is included

in Exhibit 7 to the Second Amended Complaint, references a Consent Agreement

between Quidnick and DEM in 1995 in which Quidnick agreed to certain water levels

and water releases to resolve a Notice of Violation from DEM. The same water levels

and water releases were incorporated into the Coventry Lease. The Consent

Agreement was submitted as part of Exhibit 9 to the Second Amended Complaint.

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rise to the “spillway level” and that the streamflow in the South Pawtuxet River

must be reduced from 40 cfs to 24 cfs. Id. at 3.

Two days later, on July 13, 2022, Chopy sent a second letter to Soscia that

reviewed the elements of the Permitting Act and stated that Soscia’s operation of

the Dam was not consistent with historic use as to water flow through the Dam.

Doc. no. 32-8. Chopy ordered Soscia to cease and desist from operating the Dam in

a manner that was inconsistent with its historic use and to immediately reduce the

flow to 24 cfs. The letter noted the monetary penalty for failure to comply and

required Soscia to notify DEM in writing within five days of its intent to comply

with the Cease and Desist Order.

VI. Procedural background

Shortly after receiving the Cease and Desist Order, Soscia filed the complaint

in this case on July 18 against the State of Rhode Island, DEM, and Gray, alleging

federal claims for constitutional violations under 42 U.S.C. § 1983 and state law

claims for intentional interference with contractual rights. Nine days later, Soscia

filed an amended complaint against the same defendants but added a § 1983 claim

for violation of the Contracts Clause in Article 1, § 10 of the United States

Constitution and a claim for violation of the Rhode Island Constitution. Soscia

moved for a temporary restraining order and a preliminary injunction against

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defendants’ enforcement of the Permitting Act. Doc. no. 5. On July 29, 2022, the

court denied the part of the motion seeking a temporary injunction.9

Soscia filed a second amended complaint on September 13, 2022. Doc. no. 30.

Two weeks later, Soscia filed a third amended complaint, which is the operative

complaint in the case and includes 9 exhibits. Doc. no. 32. In the third amended

complaint, Soscia names the State of Rhode Island, DEM, Chopy, and Gray as

defendants and alleges the following claims:

Count I - § 1983 – Soscia alleges that by enacting the Permitting Act and

issuing the Cease and Desist Order defendants impaired Soscia’s contract rights

with Rhode Island in violation of the Contract Clause of Article 1, § 10 of the United

States Constitution, and seeks a declaratory judgment, a permanent injunction,

compensatory and punitive damages, and attorney fees and costs.

Count II - § 1983 – Soscia alleges that the Permitting Act constitutes a taking

by Rhode Island of the rights Soscia acquired from Quidnick in violation of the

Takings Clause of the Fifth Amendment and seeks a declaratory judgment, a

permanent injunction, compensatory and punitive damages, and attorney fees and

costs.

9 On August 9, 2022, Terrence Gray, the Director of DEM, sent Soscia an

“Immediate Compliance Order.” Doc. no. 32-9. In the Compliance Order, Gray

provided background facts about the issues with the Dam, listed Soscia’s violations

of the Permitting Act and Rhode Island’s water quality regulations, and required

immediate compliance. The Compliance Order was effective for 45 days with a

possible renewal of 45 days. Even if the Compliance Order were renewed for 45 days

(and there is no indication of renewal), it has now expired.

10

Count III - § 1983 – Soscia alleges that by sending the Cease and Desist

Order without providing an opportunity for Soscia to be heard, defendants deprived

it of procedural due process under the Due Process Clause of the Fifth and

Fourteenth Amendments and violated the Equal Protection Clause of the

Fourteenth Amendment and seeks a declaratory judgment, a permanent injunction,

compensatory and punitive damages, and attorney fees and costs.

Count IV - § 1983 – Soscia alleges that by controlling the water levels in

Johnson’s Pond and applying the Permitting Act to Soscia, defendants violated the

Due Process and Equal Protection Clauses of the Fifth and Fourteenth

Amendments and seeks a declaratory judgment, a permanent injunction,

compensatory and punitive damages, and attorney fees and costs.

Count V – state law – Soscia alleges that Chopy and Gray intentionally

interfered with the Coventry Lease and seeks damages and attorney fees.

Count VI – state law – Soscia alleges that the Permitting Act and actions by

DEM before the Act was passed constitute intentional interference with Soscia’s

contract rights under the “franchise contract” with Rhode Island and seeks damages

and attorney fees.

Count VII – state law – Soscia alleges that by enacting the Permitting Act

and issuing the Cease and Desist Order defendants violated Article 1, § 12 of the

Rhode Island Constitution and seeks a declaratory judgment and a permanent

injunction.

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DISCUSSION

Defendants move to dismiss the § 1983 claims and the claim under the Rhode

Island Constitution based on Eleventh Amendment sovereign immunity. They

move to dismiss the § 1983 claims against Chopy and Gray in their individual

capacities based on qualified immunity. Defendants challenge all of the claims

based on abstention principles. Soscia objects to the motion, arguing that

defendants are not entitled to sovereign immunity, that it can maintain its § 1983

claims against Chopy and Gray for damages and prospective injunctive relief, and

that abstention principles do not apply. The court addresses sovereign immunity

first, followed by qualified immunity, and then abstention.

I. Sovereign Immunity - § 1983 Claims

Rhode Island, DEM, and Chopy and Gray in their official capacities assert

that sovereign immunity under the Eleventh Amendment requires dismissal of

Soscia’s federal claims (Counts I-IV). Soscia’s § 1983 claims seek declaratory

judgment, injunctive relief, and compensatory and punitive damages against Rhode

Island, DEM, and Chopy and Gray (in their official capacities ).10 In response,

Soscia argues that exceptions apply to allow its § 1983 claims.

10 Defendants acknowledge that Rhode Island has consented to suit and waived

sovereign immunity for tort claims pursuant to Rhode Island General Laws § 9-31-1

but argue that the statute does not cover the claims alleged in this case. Soscia does

not raise § 9-31-1 as a waiver by the state of its sovereign immunity as to any claim

in this case. See Luceus v. Rhode Island, 2016 WL 7971311, at *5 (D.R.I. Dec. 13,

2016) (discussing waiver of sovereign immunity under § 9-31-1 and citing Marapese

v. State of R.I., 500 F. Supp. 1207 (D.R.I. 1980), that held that the state consented to

suit for § 1983 claims that were “in the nature of tort at common law”). Because

12

Section 1983 provides a federal cause of action against “[e]very person” who

deprives another person “of any rights, privileges, or immunities secured by the

Constitution and laws.” 42 U.S.C. § 1983. “Basic tenets of sovereign immunity

teach that courts may not ordinarily hear a suit brought by any person against a

nonconsenting State.” Torres v. Texas Dept. of Public Safety, 142 S. Ct. 2455, 2461-

62 (2022); Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989). For that

reason, states (including their departments and agencies), and state officials sued

for money damages in their official capacities are not “persons” within the meaning

of § 1983. Will, 491 U.S. at 71. Eleventh Amendment sovereign immunity bars

claims seeking money damages against a state, a state agency, or a state official

sued in his official capacity in federal court. Frew ex rel. Frew v. Hawkins, 540 U.S.

431, 437 (2004). Nevertheless, there are limited recognized circumstances in which

a state may be subject to suit, including when the state consents, when congress

abrogates immunity, and when the Ex parte Young doctrine applies. See PennEast

Pipeline Co., LLC v. New Jersey, 141 S. Ct. 2244, 2258 (2021); Reed v. Goertz, 143

S. Ct. 955, 960 (2023).

A defendant who asserts sovereign immunity bears the burden to show that

it is an arm of the state. Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. &

Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st Cir. 2003). Once that

showing is made, the plaintiff bears the burden to show that an exception to

Soscia does not press § 9-31-1 as a waiver of sovereign immunity, the court will not

address it further.

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sovereign immunity applies. See Allen v. Cooper, 895 F.3d 337, 354 (4th Cir. 2018);

Mallison v. Conn. Office of Early Childhood, --- F. Supp. 3d ---, 2023 WL 2139510, at

*3 (D. Conn. Feb. 21, 2023).

There is no dispute that Eleventh Amendment sovereign immunity applies to

the State of Rhode Island. Soscia also does not dispute that DEM, Gray, and Chopy

in their official capacities are arms of the State of Rhode Island for purposes of

sovereign immunity. Soscia does not argue that any of the defendants consented to

suit or that congress abrogated sovereign immunity with respect to his claims.

Therefore, absent another applicable exception to sovereign immunity, Soscia’s

§ 1983 claims must be dismissed.

Soscia raises three exceptions to sovereign immunity in this case. The first

two asserted exceptions are based on novel theories and the third is conventional.

Soscia first contends that sovereign immunity does not apply to its Contract Clause

claim (Count I) or its Takings Clause claim (Count II) because under Rhode Island

law it would not be entitled to a remedy in Rhode Island courts. Soscia’s second

theory is that the United States Supreme Court created an exception to sovereign

immunity in Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162 (2019). And

third, Soscia argues that it can maintain constitutional claims under § 1983 for

prospective injunctive relief pursuant to the exception to sovereign immunity

provided by Ex parte Young, 209 U.S. 123, 159–161 (1908). Defendants contend

that none of these asserted exceptions applies.

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A. Constitutional requirement of remedy

Soscia first contends that there is an exception to Eleventh Amendment

sovereign immunity for a takings claim where a state court does not provide a

plaintiff with a remedy.11 In so arguing, Soscia relies on Hutto v. South Carolina

Retirement System, 773 F.3d 536 (4th Cir. 2014). In Hutto, the Fourth Circuit held

that the Eleventh Amendment bars Fifth Amendment Takings Clause claims

against states in federal court “when the State’s courts remain open to adjudicate

such claims.” Id. at 552. The issue in Hutto was whether the Fifth Amendment’s

requirement of just compensation for a governmental taking precluded sovereign

immunity in federal court. Id. at 551. The Fourth Circuit stated that because

South Carolina courts “have long recognized a right of persons to sue the State for

unconstitutional takings,” the Fifth Amendment’s requirement of just compensation

for a taking did not preclude the defense of sovereign immunity in federal court. Id.

Importantly, however, the Fourth Circuit further stated that “we do not

decide the question whether a State can close its doors to a takings claim or the

question whether the Eleventh Amendment would ban a takings claim in federal

court if the State courts were to refuse to hear such a claim.” Id. As such, Hutto

11 Soscia also cites Count I, the Contract Clause claim, for purposes of a remedy

exception to sovereign immunity but makes no developed argument of how or why

that theory applies to the Contract Clause claim. For that reason, the court deems

the remedy exception argument waived as to Count I and focuses on Soscia’s theory

in the context of the Takings Clause claim in Count II. See United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990).

15

does not stand for the proposition that the lack of a remedy for a takings claim in

state court provides an exception to sovereign immunity in federal court.

In any event, Soscia is incorrect about the underlying premise: that Rhode

Island courts would not hear its takings claim. On the contrary, Rhode Island

courts are “open” to takings claims, including claims against DEM. In Alegria v.

Keeney, 687 A.2d 1249 (R.I. 1999), the plaintiff bought a 28-acre parcel of land for

development, although the parcel was 80% wetlands. Id. at 1250. DEM denied

plaintiff’s application for construction of residences and industrial buildings on the

property as being “inconsistent with the public interest and public policy” as

provided in the Rhode Island Freshwater Wetlands Act. Id. After plaintiff’s

appeals were denied, he brought suit in Rhode Island state court, alleging that

DEM’s enforcement of the Act constituted a taking of his property in violation of the

Fifth Amendment and the Rhode Island Constitution. Id. at 1251-52. The trial

court dismissed the case, finding that plaintiff knew the property included wetlands

when he purchased it and that plaintiff was not entitled to compensation for his

error of judgment. Id. at 1251. On appeal the Rhode Island Supreme Court

affirmed and concluded that the takings claim failed in that case. Id. at 1254-55.

See also Marek v. Rhode Island, 792 F.3d 650, 654 (1st Cir. 2012) (“Rhode Island

courts recognize a cause of action for inverse condemnation, allowing for recovery

when a governmental entity exercising land use restrictions or regulations

effectively takes property without formally exercising its eminent domain power.”).

Although plaintiff’s takings claim in Alegria failed, it was heard and decided on the

16

merits. Neither the trial court nor the Rhode Island Supreme Court rejected the

takings claim based on the provisions in the Rhode Island Constitution that Soscia

argues would preclude its takings claim in Rhode Island courts. Soscia has not

therefore shown that its takings claim would be barred in Rhode Island courts.

In short, Soscia’s theory about the lack of a remedy for its takings claim in

Rhode Island’s courts fails to defeat the doctrine of sovereign immunity.

B. Knick and sovereign immunity

Soscia next argues that the United States Supreme Court created an

exception to the sovereign immunity doctrine for Takings Clause claims in Knick v.

Township of Scott, Pennsylvania. 139 S. Ct. at 2167-68. The Supreme Court did

not address the doctrine of sovereign immunity in Knick. Instead, the Court

analyzed whether a plaintiff must exhaust post-taking remedies before bringing a

Fifth Amendment takings claim. Id. The Court concluded, contrary to Williamson

County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S.

172 (1985), that “[t]he Fifth Amendment right to full compensation arises at the

time of the taking, regardless of post-taking remedies that may be available to the

property owner.” Id. at 2170. The takings claim in Knick was brought against a

municipality, not the state, and for that reason the Supreme Court did not address

sovereign immunity. See Pharm. Research & Mfrs. of Am. v. Williams, 64 F.4th

932, 949 n.13 (8th Cir. 2023); Zito v. N.C. Coastal Resources Comm’n, 8 F.4th 281,

286 (4th Cir. 2021); Ladd v. Marchbanks, 971 F.3d 574, 579-80 (6th Cir. 2020).

17

In every case where the plaintiff has argued, as Soscia does here, that

takings claims are not subject to sovereign immunity pursuant to Knick, courts

have ruled against the plaintiff. See, e.g., Skatemore, Inc. v. Whitmer, 40 F.4th

727, 733-34 (6th Cir. 2022) (reiterating the holding in Ladd, 971 F.3d at 579-80,

that Knick did not provide an exception to sovereign immunity for takings claims);

Pavlock v. Holcomb, 35 F.4th 581, 589 (7th Cir. 2022) (“Every circuit to consider the

question has held that Knick did not change states’ sovereign immunity from

takings claims for damages in federal court, so long as state courts remain open to

those claims.”); Gerlach v. Rokita, No. 22-cv-072-TWP-MG, 2023 WL 2683132, at *8-

*9 (S.D. Ind. Mar. 29, 2023); Blueprint Capital Advisors, LLC v. Murphy, No. 20-cv-

07663 (JXN) (ESK), 2022 WL 17887229, at *20 (D.N.J. Dec. 23, 2023); see also

Merritts v. Richards, 62 F.4th 764, 772 (3d Cir. 2023) (affirming dismissal of

takings claim based on sovereign immunity but remanding to have dismissal be

entered without prejudice).12

For these reasons, the court finds that the holding in Knick does not affect

the application of sovereign immunity to Soscia's takings claim, Count II.

12 Soscia relies on two district court cases to support its argument that Knick

created or recognized an exception to sovereign immunity for takings claims. The

court is not persuaded by Allen v. Cooper, 555 F. Supp. 3d 226, 238-39 (E.D.N.C.

2021), to disregard the weight of authority to the contrary. And Donnelly v.

Maryland, 602 F. Supp. 3d 836, 855 (D. Md. 2022), does not support Soscia’s theory.

In Donnelly, the court followed Fourth Circuit precedent, see Zito v. N.C. Coastal

Resources Comm’n, 8 F.4th 281, 286-87 (4th Cir. 2021), that held Knick did not

abrogate sovereign immunity in federal court.

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C. Prospective injunctive relief - Ex parte Young

Finally, Soscia contends that sovereign immunity does not apply to the extent

it is seeking prospective injunctive relief from Chopy and Gray. Under the Ex parte

Young doctrine, plaintiffs may “seek judicial orders in federal court preventing state

executive officials from enforcing state laws that are contrary to federal law.”

Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 532 (2022); accord Reed v.

Goertz, 143 S. Ct. 955, 960 (2023). Such claims are not barred by Eleventh

Amendment sovereign immunity “because a suit challenging the constitutionality of

a state official’s action in enforcing state law is not one against the State.” Doe v.

Shibinette, 16 F.4th 894, 903 (1st Cir. 2021) (internal quotation marks omitted).

“‘In determining whether the doctrine of Ex parte Young avoids an Eleventh

Amendment bar to suit, a court need only conduct a straightforward inquiry into

whether the complaint alleges an ongoing violation of federal law and seeks relief

properly characterized as prospective.’” Id. (quoting Verizon Md., Inc. v. Pub. Serv.

Comm’n, 535 U.S. 635, 645 (2002) (further internal quotation marks omitted).

In Counts I through IV, Soscia seeks, among other things, injunctive relief

against Chopy and Gray in their official capacities at DEM to stop enforcement of

the Permitting Act going forward. While Soscia relies on the letters sent by Chopy

and Gray last summer to show interference or potential interference with Soscia’s

property and water rights, the complaint seeks prospective injunctive relief to stop

Chopy and Gray from interfering with those rights by enforcing the Permitting Act

in the future. To the extent Soscia seeks prospective injunctive relief against Chopy

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and Gray, Soscia is correct that these claims fall within the Ex parte Young

exception.

Defendants contend, however, relying on Ladd v. Marchbanks, 971 F.3d 574,

581 (6th Cir. 2020), that Soscia is actually seeking compensation, not injunctive

relief. In Ladd, the Sixth Circuit held that the plaintiff’s claim was not within the

exception provided by the Ex parte Young doctrine because the plaintiff was seeking

compensation from Ohio with respect to damage to property that had already

occurred. Unlike the claim in Ladd, however, Soscia’s claims can be limited to

preventing future harm. That is, Soscia’s claims survive to the extent Soscia is

seeking an injunction to avoid enforcement of the Permitting Act in the future. To

the extent Soscia is seeking a remedy for harms in the past, those claims are barred

by sovereign immunity.

For these reasons, sovereign immunity does not bar Soscia’s claims in Counts

I, II, III, and IV against Chopy and Gray in their official capacities to the extent

those claims seek prospective injunctive relief to prohibit future enforcement of the

Permitting Act.

II. Sovereign Immunity – Rhode Island Constitution Claim

In Count VII, Soscia seeks a declaratory judgment that defendants violated

Article I, § 12 of the Rhode Island Constitution by “enactment” of the Permitting

Act and by issuing the Cease and Desist Order in July 2022. Doc. no. 32 at 16, ¶ 67.

That section of the Rhode Island Constitution provides: “No ex post facto law, or law

impairing the obligation of contracts, shall be passed.” R.I. Const., Art. I, § 12.

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Defendants move to dismiss Count VII on the basis of sovereign immunity. Soscia

does not appear to have responded to that part of the motion.

The Eleventh Amendment precludes federal courts from deciding claims that

allege a state official has violated state law. Pennhurst St. Sch. & Hosp. v.

Halderman, 465 U.S. 89, 102 (1984). “It is difficult to think of a greater intrusion

on state sovereignty than when a federal court instructs state officials on how to

conform their conduct to state law.” Id. Therefore, Eleventh Amendment sovereign

immunity bars Count VII, which is dismissed.

III. Qualified immunity

Soscia also brings § 1983 claims against Chopy and Gray in their individual

capacities, challenging their efforts to enforce the Permitting Act. Defendants

contend that Soscia’s § 1983 claims against Chopy and Gray in their individual

capacities must be dismissed based on qualified immunity. Soscia argues that

qualified immunity does not protect Chopy and Gray because the constitutional

rights it asserts were clearly established when Chopy and Gray sent the letters last

summer to enforce the Permitting Act.

“When government officials are sued in their individual capacities for money

damages, the doctrine of qualified immunity shields them from pecuniary liability

unless their conduct violated ‘clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Lawless v. Town of Freetown, 63

F.4th 61, 67 (1st Cir. 2023) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

Qualified immunity applies where: (1) a federal right was violated, and (2) “the

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unlawfulness of the conduct was clearly established at the time.” Lawless, 63 F.4th

at 67. Courts may begin the qualified immunity analysis by considering the clearly

established prong. Id.

For purposes of the clearly established prong, the court must decide the

following: “(1) the relative clarity of the governing law to a reasonable official on the

date of the alleged wrong and (2) whether the specific characteristics of the

situation confronted by the official would have made it clear to a reasonable official

how the governing law applied in the given situation.” Id. The governing law must

be so clear as to put “the statutory or constitutional question beyond debate”

because officials may “make reasonable but mistaken judgments.” City & Cnty. of

San Francisco v. Sheehan, 575 U.S. 600, 611 (2015). Qualified immunity protects

“’all but the plainly incompetent or those who knowingly violate the law.’” Id.

(quoting Aschcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). The plaintiff bears the

burden to demonstrate that the law was clearly established. Est. of Rahim by

Rahim v. Doe, 51 F.4th 402, 410 (1st Cir. 2022).

To satisfy the clearly established prong, Soscia relies on the 1846 Act, the

Ronci case, and the Mill Dam Act. None of these establishes this prong.

A. 1846 Act

Soscia argues that the 1846 Act, which incorporated Quidnick and granted

Quidnick certain property and water rights, is clearly established law as to Soscia’s

right to control the dam and the level of water in Johnson’s Pond. To avoid

qualified immunity in the context of Soscia’s constitutional claims, Soscia must

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identify controlling authority or a consensus of persuasive cases that would provide

a clear signal that the challenged conduct violates a constitutional right. See Alfano

v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017). The 1846 Act does not address any

constitutional rights and does not therefore defeat qualified immunity.

B. Ronci

Soscia argues that Ronci Mfg. Co. v. Rhode Island, 121 R.I. 903, 403 A.2d

1094 (1979), provides clearly established law that defendants enforcement of the

Permitting Act violates Soscia’s rights under the Takings Clause. In Ronci, the

Rhode Island Supreme Court applied Rhode Island statutory law to decide the

plaintiff’s petition for damages. The plaintiff did not raise a federal constitutional

right, and no federal right was addressed or decided. The court’s decision in Ronci

is based on state law and is unrelated to the federal constitutional claims Soscia

brings here. Soscia’s reliance on Ronci to defeat qualitied immunity misses the

mark.

C. Mill Dam Act

Soscia also contends that language in the Mill Dam Act should have put

Chopy and Gray on notice that enforcing the Permitting Act would violate its rights.

Soscia’s interpretation of the Mill Dam Act is far from clear and was not addressed

or decided in Ronci or in any other cited case. More importantly, nothing in Ronci

or the Mill Dam Act provides clearly established law that enforcing the Permitting

Act in the circumstances of this case would violate Soscia’s federal constitutional

rights.

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For these reasons, Chopy and Gray are entitled to qualified immunity from

liability in their individual capacities as to Counts I through IV. The court

therefore dismisses the claims in Counts I, II, III, and IV against Chopy and Gray

in their individual capacities.

IV. Abstention

Defendants argue that the court should abstain from considering Soscia’s

claims based on the principles provided in Burford v. Sun Oil Co., 319 U.S. 315

(1943) (“Burford abstention”), and Railroad Commission of Texas v. Pullman Co.,

312 U.S. 496 (1941) (“Pullman abstention”). In support, defendants contend that:

Soscia previously abandoned state court litigation on the same facts and issues;

Soscia’s claims challenging enforcement of the Permitting Act implicate important

areas of state environmental law; and Soscia relies on the Mill Dam Act, which also

implicates state law. Soscia disagrees.

As is often stated, “‘federal courts have a strict duty to exercise the

jurisdiction that is conferred upon them by Congress.’” Forty Six Hundred LLC v.

Cadence Educ., LLC, 15 F.4th 70, 74 (1st Cir. 2021) (quoting Quackenbush v.

Allstate Ins. Co., 517 U.S. 706, 716 (1996)). Nevertheless, the “Supreme Court has

carved out certain ‘exceptional circumstances’ – circumstances in which ‘denying a

federal forum would clearly serve an important countervailing interest’ – that may

warrant a federal court’s eschewal of jurisdiction.” Id. (quoting Quackenbush, 517

U.S. at 716). The Burford abstention doctrine is one such exception. It applies

when a case “‘presents difficult questions of state law bearing on policy problems of

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substantial public import whose importance transcends the result in the case then

at bar, or if its adjudication in a federal forum would be disruptive of state efforts to

establish a coherent policy with respect to a matter of substantial public concern.’”

Id. at 75 (quoting Quackenbush, 517 U.S. at 726-27). The Pullman abstention

doctrine is another exception. It applies “where (1) substantial uncertainty exists

over the meaning of the state law in question, and (2) settling the question of state

law will or may well obviate the need to resolve a significant federal constitutional

question.” Barr v. Galvin, 626 F.3d 99, 107 (1st Cir. 2010). A district court decision

on abstention must address two elements: (1) “whether certain preconditions for

abstention are met, and if so,” (2) “whether abstention is appropriate.” Forty Six

Hundred, 15 F.4th at 74.

A. Burford abstention

Defendants first argue that the court should abstain based on the Burford

abstention doctrine because Soscia’s claims involve the state’s ongoing enforcement

action under the Permitting Act and Rhode Island state courts are available to

decide the claims. They contend that a “central question” in this case is the

meaning of “historic use” in the context of the Permitting Act. Doc. no. 34-1 at 20.

Because of the local nature of the dispute, defendants assert that in deciding the

claims raised here the court would become a regulatory decision-maker for the

State.

“The Burford abstention doctrine applies in the extraordinary circumstance

when a case ‘presents difficult questions of state law bearing on policy problems of

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substantial public import whose importance transcends the result in the case then

at bar, or if the adjudication in a federal forum would be disruptive of state efforts

to establish a coherent policy with respect to a matter of substantial public

concern.’” Forty Six Hundred, 15 F.4th at 75 (quoting Quackenbush, 517 U.S. at

726-27). Burford abstention is intended to prevent federal courts from creating “a

parallel, additional, federal ‘regulatory review’ mechanism, the existence of which

would significantly increase the difficulty of administering the state regulatory

scheme.’” Id. at 75 (quoting Bath Mem’l Hosp. v. Maine Health Care Fin. Comm’n,

853 F.2d 1007, 1013 (1st Cir. 1988)). That is, “‘[t]the fundamental concern in

Burford is to prevent federal courts from bypassing a state administrative scheme

and resolving issues of state law and policy that are committed in the first instance

to expert administrative resolution.’” Id. (quoting Pub. Serv. Co. of N.H. . Patch,

167 F.3d 15, 24 (1st Cir. 1998)).

Abstention is not justified merely because the claims implicate “important

state regulatory policies,” because the result “may impair operation of a state

administrative scheme or overturn state policy,” or because a potential exists for

conflict between the federal court decision and state regulatory law or policy. Id.

(internal quotation marks omitted). For example, in Forty Six Hundred, the district

court remanded the case to preserve Massachusetts’s statutory scheme applicable to

the summary eviction process. Id. at 73. The First Circuit reversed, holding that

Burford abstention did not apply because the use of the Federal Rules of Civil

Procedure in federal court to decide the eviction issue would not interfere in a state

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administrative scheme or in state policymaking and that the district court could

apply Massachusetts property law to the issues in the case. Id. at 77-78.

The First Circuit considers three factors to address the propriety of Burford

abstention: (1) “the availability of timely and adequate state-court review, (2) the

potential that federal court jurisdiction over the suit will interfere with state

administrative policymaking, and (3) whether conflict with state proceedings can be

avoided by careful management of the federal case.” Chico Serv. Station, Inc. v. Sol

P.R. Ltd., 633 F.3d 20, 32 (1st Cir. 2011). The court must apply the Burford

abstention doctrine narrowly, and only in “unusual circumstances, where the

federal court risks usurping the state’s role as the regulatory decision-making

center.” Forty Six Hundred, 15 F.4th at 75 (internal quotation marks omitted).

With respect to the first factor—and Soscia’s arguments notwithstanding—

Rhode Island courts are available to hear the claims it brings here.13 Thus, timely

and adequate state-court review is available. With respect to the second and third

factors for Burford abstention, however, the defendants have not shown that this

case has the potential to interfere with Rhode Island administrative policymaking

or that this case would conflict with proceedings in Rhode Island.

Defendants argue that Soscia’s claims here will require this court to address

the term “historic use” in the context of the Permitting Act, which will cause the

13 As noted above, defendants assert that Soscia filed a tort claim in state court

that overlaps with the claims asserted here and cites “Soscia v. RIDEM, P.C.-2021-

07254.” Doc. no. 34-1 at 21. Defendants did not append a copy of the pleadings in

that case or provide any additional information. It is unclear whether that is the

state court case that defendants assert Soscia “abandoned.” Id. at 19.

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court to become a regulatory decision-maker for Rhode Island. They also assert

that the claims interfere with Rhode Island’s regulatory regime to protect land use

under its police powers. Defendants point to no claim in this case, however, that

will require the court to address the meaning or application of the term “historic

use.” Soscia is not asking the court to interfere in a regulatory scheme based on

policy or asking the court to interpret or change the Permitting Act. Instead, Soscia

challenges the constitutionality of defendants’ enforcement of the Permitting Act.

Defendants have not shown that an exceptional circumstance exists here to support

Burford abstention.

B. Pullman abstention

Defendants next argue that the court should abstain based on the Pullman

abstention doctrine. Pullman abstention is limited to cases where the claims turn

on the meaning of ambiguous state law. Batterman v. Leahy, 544 F.3d 370, 374

(1st Cir. 2008). Defendants argue that Soscia’s claims here depend on the meaning

of the Permitting Act. Defendants have not identified an ambiguity, however, that

would be dispositive of the claims. Therefore, defendants have not persuaded the

court that Pullman abstention applies here.

V. Summary of Rulings

The federal claims, Counts I-IV, are dismissed except to the extent they are

brought against Chopy and Gray in their official capacities and seek only

prospective injunctive relief. Count VII is dismissed. The court will not abstain

from considering the remaining claims. The claims remaining in the case are

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Counts I-IV against Chopy and Gray in their official capacities for prospective

injunctive relief, Count V, and Count VI.

Defendants also moved to dismiss all of the claims on the merits as failing to

state cognizable claims. The court has now dismissed Count VII and resolved the

jurisdictional and quasi-jurisdictional issues thereby winnowing down the

remaining federal claims. Defendants should present their challenges to the merits

of the remaining claims after accounting for the rulings herein and after a careful

examination of the remaining claims as pleaded.14

Defendants may challenge the merits of the remaining claims in a second

motion to dismiss if filed within 30 days of the date of this order or, alternatively, in

a properly supported motion for summary judgment. Soscia will have the

applicable time provided under the rules to respond.

CONCLUSION

For the foregoing reasons, the court grants in part and denies in part

defendants’ motion to dismiss (doc. no. 34). The court dismisses Counts I-IV except

to the extent they state claims against David Chopy and Terrence Gray in their

14 For example, it appears that defendants addressed the wrong contract in

moving to dismiss Soscia’s claim in Count I that enforcement of the Permitting Act

violates the Contract Clause. See doc. no. 34-1 at 30-31. The parties should address

in more detail the issue of whether the State of Rhode Island granted Quidnick a

“franchise” through the 1846 Act, and if so, what the franchise conveyed to Quidnick.

The parties should also focus on what rights and property Soscia purchased from

Quidnick through the purchase and sale agreement and quitclaim deed and whether

resolution of that question presents a factual or legal issue. See, e.g., Hall v.

Nascimento, 594 A.2d 874 (R.I. 1991). Further, the relevance of the Mill Dam Act in

this case must be better developed.

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official capacities and seek prospective injunctive relief. The court dismisses Count

VII. The remainder of the motion is denied without prejudice as provided above.

SO ORDERED.

______________________________

Landya B. McCafferty

United States District Judge

Sitting by designation.

June 15, 2023

cc: Counsel of Record

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