Petition for Writ of Certiorari — Berman Enterprises, Inc. v. Jorling

‘ he Supreme Court, U.S,

2 ‘Ro, 93°" gv KFILED

| NOV 2e 1093.

IN THE

‘ QFHGE OF Wie @LERK

Supreme Court of the United Sstrtes——~

OCTOBER TERM, 1993

— =>

BERMAN ENTERPRISES, INC.; GENERAL MARINE TRANSPORT

CORPORATION; STANDARD MARINE SERVICES, INC.; JANE FRANK

KRESCH, as Secretary of Berman Enterprises; EVELYN BERMAN

FRANK, as Chief Executive Officer of General Marine Transport

Corporation and as an Officer of the other named corporations; and

PETER M. FRANK, as President of General Marine Transport

Corporation,

ag Petitioners,

THOMAS C. JORLING, in his individual capacity and in his official capacity

as Commissioner of the New York State Department of Environmental

Conservation; and LANGDON MARSH, in his individual capacity and in

his official capacity as Executive Deputy Commissioner of the New

York State Department of Environmental Conservation,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

CHRISTOPHER R. CARPENTIERI

Counsel of Record

H. DAVID KOTZ

STULTS BALBER HORTON & SLOTNIK, P.C.

1370 Avenue of the Americas

New York, New York 10019

(212) 246-2400

Attorneys for Petitioners Berman

Enterprises, Inc., General Marine

Transport Corporation, Standard

Marine Services, Inc., Jane Frank

Kresch, Evelyn Berman Frank and

November 19, 1993 Peter M. Frank

QUESTIONS PRESENTED

1. Whether a federal court should abstain from decision

under the Pullman doctrine in a civil rights action brought

pursuant to 42 U.S.C. § 1983 where the actions of the state

officials are preempted by federal law”?

2. Whether a federal court should abstain from decision

under the Pullman doctrine in a civil rights action pursuant

to 42 U.S.C. § 1983 where the state statute at issue is un-

ambiguous?

3. Whether a federal court should abstain from decision

under the Burford doctrine in a civil rights action pursuant to

42 U.S.C. § 1983 where no interference with a state statutory

scheme is implicated?

4. Whether a federal court should defer rather than dismiss

under the Pullman abstention doctrine a federal civil rights

action pursuant to 42 U.S.C. § 1983 where claims for

prospective injunctive relief and declaratory relief will not be

resolved by the state court determination?

5. Whether the standard for qualified immunity of state

officials from personal damage claims pursuant to 42 U.S.C.

§ 1983 is that the state official reasonably should have known

that his actions violated the constitutional rights of the

claimant?

PARTIES TO THE PROCEEDING

BELOW AND RULE 29.1 LISTS

Petitioners (plaintiffs) are three corporations: Berman

Enterprises, Inc., General Marine Transport Corporation and

Standard Marine Services, Inc. and three individuals in their

Capacities as officers of the corporations: Jane Frank Kresch,

Evelyn Berman Frank and Peter M. Frank. Respondents

(defendants) are two individuals: Thomas C. Jorling and

Langdon Marsh, both in their individual capacities and in

their official capacities as Commissioner of the New York

State Department of Environmental Conservation and Exec-

utive Deputy Commissioner of the Department of Environ-

menta! Conservation, respectively.

Rule 29.1 List of Petitioner Berman Enterprises, Inc.

Pursuant to Rule 29.1 of the Rules of the Supreme Court of

the United States, Petitioner Berman Enterprises, Inc. submits

the following list. Berman Enterprises, Inc. has the following

affiliates and subsidiaries: Standard Marine Services, Inc.

Rule 29.1 List of Petitioner General

Marine Transport Corporation

Pursuant to Rule 29.1 of the Rules of the Supreme Court of

the United States, Petitioner General Marine Transport Cor-

poration submits the following list. General Marine Transport

Corporation has the following affiliates and subsidiaries:

Standard Marine Services, Inc.

Rule 29.1 List of Petitioner Standard

Marine Services, Inc.

Pursuant to Rule 29.1 of the Rules of the Supreme Court of

the United States, Petitioner Standard Marine Services, Inc.

submits the following list. Standard Marine Services, Inc. has

the following affiliates and subsidiaries: Bayonne Properties,

Inc.; Standard Tank Cleaning Corp.; Standard Tank Cleaning

Co.; Berman Enterprises, Inc; Marine Movements, Inc.; Barge

Operations, Inc.; Mercury Tank Cleaning Corp.; Water Facil-

ities, Inc.; Waterways Towing, Inc.; General Marine Transport

Corporation; Sludge Tank Cleaning Co. Inc.; Standard Marine

Transport Services, Inc; New England Marine Services, Inc.,;

Parklane Marine Transport Corp.; Park Lane Associates; Stan-

dard Marine Bunkering Services, Inc. (renamed Bunker Group

New York, Inc.); Virginia Tank Logistics, Inc.; Standard

Marine Towing Services, Inc. and Bunker Group, Inc

1V

TABLE OF CONTENTS

PAGE

EE ener eee Ny mae i

Parties to the Proceeding Below and Rule 29.1 List..... li

Se ie ED es hc dne casas occescnuacaeresieenseanens vi

CL I oa cnbscsnd cane sdacs cicscesssavackvanearias ]

Pd ccd cdincscuscnacdacass rua edasddasneniaGanaees dhe l

Statutes and Regulations Involved ....................... l

PID WEE CE Co ike sends aacG ne dsdueesaneeaaaees 2

Reasons for Granting the Writ............................ 3

I. § 1983 is Necessary to Balance the Extra-

ordinary Powers Granted in Environmental

Enforcement Legislation ............2.200c0005- 4

Il. The Order is Preempted by Federal Regulation

Therefore Abstention Was Not Relevant....... 5

III. The Abstention Analysis of the Second Circuit

is Contrary to Established Law ................ 7

IV. Burford Abstention is Inappropriate Because

Jorling and Marsh Made No Claim That Berman

WEE ME GUE hh sk cccoaccneeeacenedesedauss 8

V. The Second Circuit's Decision Creates a Con-

flict Among the Circuits Regarding the Issue of

How a Federal Court Should Apply the Pullman

Abstention Doctrine to Civil Rights Actions

Brought Under 42 U.S.C. § 1983............... i)

|

PAGE

VI. The Second Circuit Failed To Apply The Appro-

priate Test Established By This Court To Deter-

mine Whether An Official Is Entitled To Quali-

Fuee MNO «6s xo rona ve rgaeen scans carte ree 17

CI oni. ised vecescescccseteleccdisiae ee ae

Appendices

A. Opinion of the United States Court of Appeals for

the Second Circuit dated August 24, 1993 (3 F.3d

GU Pe acaN inn soe dacecuu eed eaete i eee la

B. Opinion of the United States District Court for the

Eastern District of New York dated May 19, 1992

CTR FD. Ss os oso es tddars tess eee 14a

C. Secthom 1905 OF 42 UB bliss cccccteedivcase feneun ees 31a

D. New York State Environmental Conservation

LW OF ee vn o5 sacs oA640cae ade eee 32a

E. New York State Environmental Conservation

LON S SGRIGS Sige dk cob cadese sath Sede ese ee ee 34a

vi

TABLE OF AUTHORITIES

Cases: PAGE

Alliance of American Insurers v. Cuomo, 854 F.2d 591

C26 CRC. Fs cidaedcssctessaseantacu eee ®

Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87

LM. BEDS CIDSSP oc ccwecscausccacccseueevnase 8,9, 12

Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57

mF FE Et, | rr rere ree 18

Canton v. Spokane School District, 498 F.2d 840 (9th

COP. BP POP acccccccuscanssteusssorsseseeeeeee 12,13

Chapman v. Nichols, 989 F.2d 393 (10th Cir. 1993)... 19, 20

Christy v. Hamel, 87 F.R.D. 381 (M.D. Pa. 1980)........ 11

Coley v. Clinton, 635 F.2d 1364 (8th Cir. 1980) ......... 16

Colorado River Water Conservation District v. United

States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d

QBS CEPTS? occ ccacédéccesocssseccuencesesyeee 15

Conover v. Montemuro, 477 F.2d 1073 (3d Cir. 1973). 10, 11

Crawley v. Hamilton County Commissioners, 744 F.2d

28 (Gta Cie. 1GGE). . o0kcsnscsnctectcsncectakseaeeeee 12

Cronen v. Texas Dept. of Human Services, 977 F.2d 934

(Sth Cie. 19GB). < conscccccccccéevssvaseactakanseau 19

District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct.

GO2. 34 £..06.26 GES (IGT? ci nvcnnsecctassesueneeees 5

George v. Parratt, 602 F.2d 818 (8th Cir. 1979) ..15, 16, 17

Gibson, et al. v. Berryhill, et al., 411 U.S. 564, 93 S.Ct.

16G9, 36 &..6.28 SEB CEST S) is nvadensscncaunceesess 5

Growe v. Emison, 1993 U.S. LEXIS 1780, 113 S.Ct. 1075,

122 L..66.26 SBS (IDGS) < osncissucccnvaseecusaesaeee 10

PAGE

Hanna v. Toner, 630 F.2d 442 (6th Cir. 1980), cert

denied, 450 U.S. 919, 101 S.Ct. 1365, 67 L.Ed.2d

346 (1981) aan ery eT 12

Harlow v. Fitzgerald;457 U.S. 800, 102 S.Ct. 2727, 73

L.Ed.2d 396 (1982) ..... | .....passim

Hawaii Housing Authority et al. v. Midkiff et al., 467 U.S

229, 104 S. Ct. 2321, 81 L. Ed.2d 186 (1984) 7

Hill v. Shelander, 992 F.2d 714 (7th Cir. 1993) 20

Lewellyn v. Gerhardt, 513 F.2d 184 (7th Cir. 1975)...15, 17

Long v. Norris, 929 F.2d 1111 (6th Cir. 1991), cert

denied, 1991 U.S. LEXIS 4535, 112 S.Ct. 187, 116

L.Ed.2d 148 (1991) ” . 19

Mayor of Philadelphia v. Educational Equality League,

415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 639 (1974) 9

Mereles v. Crosby County, 724 F.2d 431 (Sth Cir. 1984). 14

Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, § L.Ed.2d

492 (1961) ........ er van ieeeeteadawes 5

Nissan Motor Corp. v. Harding, 739 F.2d 1005 (Sth Cir

1984)..... lepeeukescuasnexs Wee

Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (6th

+ 2: | eee acanseseee tikes sxeaneeeieeed ae

Pilgrim Med. Gr. v.N.J.S. Bd. of Med. E., 613 F.Supp.

837 (D.N.J. 1985)......... rasnameeundcaa des aawdl 11,12

Pue v. Sillas, 632 F.2d 74 (9th Cir. 1980) ................ 13

Railroad Comm'n of Texas v. Pullman Co., 312 U.S.

496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).......... passim

Vili

PAGE

Ray v. Atlantic Richfield Company, 435 U.S. 150,

98 S.Ct. 988, 5S L.Ed.2d 179 (1978)............. 5,6,7

Reardon vy. United States, 947 F.2d 1509 (1st Cir. 1991) 4

Romero v. Coldwell, 455 F.2d 1163 (Sth Cir. 1972) ..13, 14, 17

Signad v. City of Sugar Land, 753 F.2d 1338 (Sth Cir.

1985), cert. denied, 474 U.S. 822, 106 S.Ct. 75, 88

Ree CEC Ns Shanes tadassaecewemenssauctanee na 14,15

Stephens v. Bowie County, 724 F.2d 434 (Sth Cir. 1984). 14

Toussain v. Yockey, 722 F.2d 1490, 1495 (9th Cir. 1984) 13

Waldron v. McAtee, 723 F.2d 1348 (7th Cir. 1983)....15, 17

Walters v. Grossheim, 990 F.2d 381 (8th Cir. 1993) ..... 20

Ward v. County of San Diego, 791 F.2d 1329 (9th Cir.

1986), cert. denied, 483 U.S. 1020, 107 S.Ct.

Ss Ee Pe CEE iva ok Fkwieeebaa sean 20

Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43

Re ee me EEE onic cue beewaetadsdveseciaeatawercs 18

Wright v. McMann, 387 F.2d 519 (2nd Cir. 1967)........ 13

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d

dg td) PPO EE EEE ere ery Per rn rr ere 1]

Zwickler vy. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 19

Ree MOO CPO DG 5565 50h pes dans cake vartedaouid 8,9, 10

Statutes and Regulations:

N.Y. Envtl. Conserv. Law § 3-0301 (McKinney 1991)....8,9

N.Y. Envtl. Conserv. Law § 71-0301 (McKinney 1973)..7, 8, 9

3S UDA... B Cee OR inc esos drevcnsdasdncceeeeeees 6

PAGE

Oe es OE a os CASE AER eee eek ao eres er akekel passim

—~

ced. 4 aR 0. bh DR peege perrarie Ke Pry ROE fh Rarer LR

PR eae Be: |) eee Fee Ue ete Cl ae

46 CPR Ft. 3U.05-5 ....... FOE CTY eT Te OPE PEE TT EET 6

EE Eo Eo oe

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners, Berman Enterprises, Inc., General Marine Trans-

port Corporation, Standard Marine Services, Inc., Jane Frank

Kresch, Evelyn Berman Frank and Peter M. Frank respectfully

request that a writ of certiorari issue to review the decision and

judgment of the United States Court of Appeals for the Second

Circuit entered on August 24, 1993. The Second Circuit Court

affirmed the decision of the United States District Court for the

Eastern District of New York which granted respondents’

motion to dismiss petitioners’ amended complaint on the basis

of qualified immunity and abstention.

Opinions Below

The opinion of the Second Circuit Court of Appeals is

reported at 3 F.3d 602 (2d Cir 1993) and is reproduced in

Appendix A. (1a).' The opinion of the District Court for the

Eastern District of New York is reported at 793 F.Supp. 602

(E.D.N.Y. 1992) and is reproduced in Appendix B. (14a).

Jurisdiction

The Second Circuit entered judgment on August 24, 1993

and less than 90 days have elapsed from that date. The juris-

diction of this Court is invoked under 28 U.S.C. § 1254(1).

Statutes and Regulations Involved

The pertinent statutes and regulations at issue are: 42 U.S.C.

§ 1983 which allows a party to bring an action in federal court

to redress any deprivation of rights caused by any person act-

ing under color of state law; New York State Environmental

References to “__a” are to the appendices to this petition.

i)

Conservation Law § 71-0301 which grants and limits the

authority of respondents to issue summary abatement orders

and New York Environmental ‘Conservation Law § 3-0301

which provides for and limits the authority of the respondents.

The relevant portions of these statutes and regulations are

reprinted in Appendix C, D and E, respectively.

Statement of the Case

1. The Summary Abatement Order

This action pursuant to 42 U.S.C. § 1983 was brought against

the New York State Commissioner (“Jorling’’) and the Execu-

tive Deputy Commissioner of Environmental Conservation

(““Marsh’’) for damages and to enjoin the enforcement of a sum-

mary abatement order (the “Order’’) issued by them. The Order,

issued under color of the New York State Environmental Con-

servation Law (“N.Y.ECL”),? prohibits, in perpetuity, the oper-

ation of 19 federally documented and certified vessels in New

York waters (3a). The Order was issued without a pre-depri-

vation hearing (4a).

The petitioners are corporations, some of which own or man-

age some of the 19 vessels, and individual members of the

Berman and Frank families (“Berman’’), who are past or pre-

sent officers of some of the corporations. Of the 19 vessels,

only one was alleged to have been involved in a violation of

the N.Y.ECL. Fhe accidental sinking of the barge Sarah Frank

precipitated the Order (3a). It has been alleged by Jorling and

Marsh, but never proven, that the sinking resulted in the release

of oil, which if true, is a violation of the N.Y.ECL.

2. The Post-Deprivation Administrative Hearing

Three weeks after issuing the Order, a hearing was com-

menced before an administrative law judge (“ALJ”) who was

an employee of the New York State Department of Environ-

5

7 N.Y. ECL § 71-0301 (McKinney 1973). Reproduced as Appendix D

hereto.

mental Conservation (““DEC”). The evidence presented by Jor-

ling in support of the Order was culled almost exclusively from

the records of the United States Coast Guard (6a). Although the

Coast Guard has exclusive federal jurisdiction to permit vessels

to Operate in the waters of the United States, it did not see fit

to revoke the certificates of these vessels. The administrative

law judge found that the Order was justified and recommended

that Jorling continue the Order unmodified (Sa). Although Jor-

ling was the ultimate decision maker under the DEC regula-

tions, he recused himself because he had made statements to

the press in announcing the Order which revealed his bias (Sa).

The decision was delegated to Marsh, who found that the Order

should remain in place in perpetuity (6a).

3. Federal Court Action

This action was commenced in the Eastern District of New

York on the basis of federal question jurisdiction under 42

U.S.C. § 1983 seeking damages and prospective injunctive

relief. The District Court dismissed the action on Eleventh

Amendment, immunity and abstention grounds and Berman

appealed. The Court of Appeals affirmed the dismissai of this

action on abstention and immunity grounds.

Reasons for Granting the Writ

Dismissal of this action vitiates a fundamental purpose of

§ 1983—to provide a federal forum to adjudicate civil rights

violations by state officials. It also frustrates the intent of

Congress to establish national vessel safety standards by allow-

ing a state to vary the standards, in direct conflict with previ-

ous decisions of this Court. The decision of the Second Circuit

in this case is contrary to prior law established by this court,

prior decisions of the Second Circuit and three other circuit

courts. By narrowing the applicability of § 1983, it encourages

the ploy of disguising otherwise blatantly unconstitutional acts

with a thin veil of environmental protection for legitimacy.

ee

4

This case was brought to redress the thinly disguised attempt

to put out of business a family which operates in the fiercely

competitive market for vessel services in New York Harbor.

For lack of an actual violation of New York environmental law,

but not for lack of legitimate enforcement alternatives, Jorling

and Marsh simply banished the family’s vessels from the

waters of New York State in perpetuity—behavior more befit-

ting a despot than a constitutional democracy. Dismissing this

case on abstention grounds does particular violence to § 1983,

which is a quintessential federal cause of action. The question

of abstention should never have been reached because the sub-

ject of the Order—vessel safety—is preempted by federal law.

The fundamental elements of dismissal under the Pullman and

Burford doctrines are missing in this case. The Second Circuit

overlooked perhaps the most important form of relief avail-

able—prospective injunction—in justifying dismissal under

Pullman (12a). Similarly, the Second Circuit attempted to jus-

tify dismissal under Burford by invoking the importance of

State environmental law (13a). Yet no claim of violation of

State environmental law was made against 18 of the 19 vessels

involved. Consequently, this decision begs the fundamental

question in a § 1983 action—did the state official violate the

plaintiff's civil rights under color of state law?

I. § 1983 is Necessary to Balance the Extraordinary

Powers Granted in Environmental Enforcement

Legislation

The state law under which Berman's vessels were banished

forever from the waters of New York is similar to many envi-

ronmental statutes which grant extraordinary powers under cir-

cumstances of imminent danger to health and safety.* Such

extraordinary discretionary power is naturally susceptible of

abuse. An ALJ who is employed by the enforcement agency is

. E.g., 42 U.S.C. § 9604 (Comprehensive Environmental Response

Compensation and Liability Act (“CERCLA”)), which grants authority to the

President to enter property and undertake removal or remedial action with-

out a pre-deprivation hearing. See, e.g., Reardon v. United States, 947 F.2d

1509 (ist Cir. 1991).

unlikely to recognize the abuse of such power’ as are the state

courts when faced with a claim of imminent environmental

disaster.

The recognition that extraordinary power is subject to abuse

is the fundamental underpinning of § 1983. The original pur-

pose of the predecessor to this statute* was to provide a federal

forum to adjudicate claims against state government actors

where state authorities may be “unable or unwilling to enforce

a state law.”’ District of Columbia v. Carter, 409 U.S. 418, 426,

93 S.Ct. 602, 607, 34 L.Ed.2d 613 (1973), quoting Monroe v.

Pape, 365 U.S. 167, 175, 81 S.Ct. 473, 478, 5 L.Ed.2d 492

(1961) (emphasis original). § 1983 was a federal response to

the failure of the state courts to protect the federal rights of

blacks against the efforts of the Ku Klux Klan. See, District of

Columbia v. Carter, 409 U.S., at 423, 93 S.Ct., at 605. Accord-

ingly, original jurisdiction in federal district court is a funda-

mental element of a § 1983 cause of action which has been

improperly denied in this case.

II. The Order is Preempted by Federal Regulation

Therefore Abstention Was Not Relevant®

The Order specifically states that Jorling prohibited the oper-

ation of the plaintiff vessels because there is a “serious risk of

harm.” In other words, the vessels are not safe to operate. How-

ever, federal law preempts the area of vessel safety determi-

nation. “{T}he Supremacy Clause dictates that the federal

judgment that a vessel is safe to navigate United States waters

prevail over the contrary state judgment.” Ray v. Atlantic Rich-

. See, e.g., Gibson et al. v. Berryhill et al., 411 U.S. 564, 93 S. Ct.

1689, 36 L.Ed.2d 488 (1973) (Administrative agency which was composed

entirely of members of professional association which was a party to lit-

gation against plaintiffs in § 1983 action, found to be biased).

5 Civil Rights Act of 1871, § 1.

° This issue was raised in the District Court (19a), in Berman's brief

to the Second Circuit and at oral argument, although not mentioned in the

Court's opinion.

6

field Company, 435 U.S. 150, 167, 98 S.Ct. 988, 998, 55

L.Ed.2d 179 (1978).’

In Ray, the state of Washington attempted to prevent the

operation of vessels in Puget Sound, unless they met design

and construction criteria differing from the federal criteria

which the state claimed were necessary to avoid oil spills. The

Washington statute had the effect, as in this case, of prohibit-

ing the operation of Coast Guard certified vessels in the waters

of the state. This Court found that Congress strongly articu-

lated the intent to create a national, if not international standard

governing vessel safety. Ray, 435 U.S., at 161, 98 S.Ct., at 996,

citing, 46 U.S.C. § 39la(1) (now 46 U.S.C. § 3306a). This

Court concluded that individual state regulation would frustrate

the objective of a uniform national standard. Ray, 435 U.S., at

165, 98 S.Ct., at 998.

Insofar as the operation of Berman’s vessels are concerned,

it should be clear that Jorling and Marsh may not substitute

their own judgment of safety. As the Court pointed out in Ray,

the Coast Guard regulations provide that a certificate of inspec-

tion from the Coast Guard “shall serve as a permit for such ves-

sel to operate.” Ray, 435 U.S. at 162, 98 S.Ct. at 996 n. 11

quoting, 46 CFR Pt. 31.05-1. All of the Berman vessels were

issued certificates of inspection, except those which were out

of service or did not require one. Jorling and Marsh took it

upon themselves to effectively revoke certificates issued by the

federal government. The Order was clearly contrary to the Con-

gressional intent of the Ports and Waterways Safety Act and the

teaching of this Court. 33 U.S.C. § 1221 et seq.

Accordingly, Jorling and Marsh have no authority to prohibit

the operation of Berman’s vessels, regardless of state law.

: This is not to say that federally documented vessels need not com

ply with “reasonable, nondiscriminatory conservation and environmental pro

tection regulations” which do not conflict with the Coast Guard regulations.

Ray v. Atlantic Richfield Co., 435 U.S. 148, 164, 98 S.Ct. 988, 997, 55

L.Ed.2d 179 (1978). However, Jorling and Marsh never alleged that any such

regulations were violated by the vessels in question, with the exception of

accidental sinking of the Sarah Frank.

=<

7

Indeed, the Coast Guard has specific authority to prohibit ves-

sels from operating in U.S. waters if the vessel’s history of

accidents, pollution incidents or serious repair problems creates

reason to believe that the vessel may be unsafe or pose a threat

to the environment. 33 CFR Pt. 160.113. In this case the Coast

Guard did not see fit to prohibit any of plaintiffs’ vessel from

operation. Yet, on the basis of Coast Guard records, Jorling and

Marsh claim to prohibit such operation, despite this Court's

clear holding in Ray that the state may not substitute its judg-

ment for that of the Coast Guard.

In dismissing the complaint, the District Court concluded

that N.Y. Envtl. Conserv. Law § 71-0301 was not in direct con-

flict with federal law (25a). Berman never claimed that there

was a conflict between the state summary abatement statute

and federal law. Rather Berman’s claim is that Jorling and

Marsh have deprived them of their rights under color of state

law—the gravamen of a § 1983 action.

III. The Abstention Analysis of the Second Circuit is

Contrary to Established Law

A. Pullman Abstention

The doctrine of Pullman* abstention provides that a federal

court should abstain “when difficult and unsettled questions of

State law must be resolved before a substantial federal consti-

tutional question can be decided.” Hawaii Housing Authority

et al v. Midkiff et al., 467 U.S. 229, 236, 104 S. Ct. 2321, 2327,

81 L. Ed.2d 186 (1984). In applying this rule, the relevant

inquiry is not “whether there is a bare, though unlikely, pos-

sibility that a state court might render adjudication of the fed-

eral question unnecessary. Rather, ‘[we] have frequently

emphasized that abstention is not to be ordered unless the

Statute is of an uncertain nature, and is obviously susceptible

. This abstention doctrine is referred to as Pullman abstention

because it originated in the case entitled Railroad Comm'n of Texas v. Pull-

man, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.2d 971 (1941).

of a limiting construction.’ ” /d, quoting, Zwickler v. Koota,

389 U.S. 241, 251, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).

In this case the statute in question authorized Jorling to issue

a summary abatement order if the perceived harm “relates to

the prevention and abatement powers of the commissioner”

(32a). N.Y. Envtl. Conserv. Law § 71-0301 (McKinney 1973).°

The prevention and abatement powers of the commissioner are

explicitly spelled out in the enabling statute—“[P]rovide for

prevention and abatement of all water, land and air pollution,

including but noi limited to that related to particulates, gases,

dust, vapors, noise, radiation, odor, nutrients and heated

liquids; . . .” (35a). N.Y. Envtl. Conserv. Law § 3-0301(i)

(McKinney 1991).

The question then, is simply whether this statutory language

is ambiguous and susceptible of a limiting construction by a

State court. The answer must rationally be no, because (1) the

plain language of the authorizing statute doesn’t encompass

vessel safety and (2) the United States Coast Guard has exclu-

Sive jurisdiction over whether a vessel may operate in the

waters of the United States.

IV. Burford Abstention is Inappropriate Because

Jorling and Marsh Made No Claim That Berman

Violated State Law

The invocation of Burford abstention is in error. Burford

abstention “applies in situations where it is prudent for a fed-

eral court to refrain from interfering in cases presenting state

law issues relating to complex state regulations where the fed-

eral court decision may disrupt important state policies (cita-

tion omitted). Such abstention is appropriate when a federal

case presents a difficult issue of state law.” Alliance of Amer-

ican Insurers v. Cuomo, 854 F.2d 591 (2d Cir. 1988) citing Bur-

ford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed.2d

1424 (1943).

Reproduced herein at appendix page 32a.

9

The Circuit Court invoked Burford abstention on the grounds

that states have considerable discretion in protecting their

waters from pollution (13a). However, the Court fails to iden-

tify any comprehensive scheme or settled administrative pro-

cedures that are relevant to this case (13a).

The state statutes involved here are not part of complex reg-

ulatory schemes. N.Y. Envtl. Conserv. Law § 71-0301 is very

simple and the circumstances in which it may be invoked are

set forth at N.Y. Envtl Conserv. Law § 3-0301 (34a).

V. The Second Circuit’s Decision Creates a Conflict

Among the Circuits Regarding the Issue of How a

Federal Court Should Apply the Pullman Absten-

tion Doctrine to Civil Rights Actions Brought

Under 42 U.S.C. § 1983.

A. Introduction.

The Second Circuit’s decision creates a conflict among the

Circuits concerning the issue of how to apply Pullman absten-

tion to actions brought under 42 U.S.C. § 1983. While there

already exists a conflict among the Circuits as to whether fed-

eral courts should be reluctant to abstain in § 1983 cases, the

Second Circuit’s decision dismissed a civil rights action

brought under § 1983 without retaining jurisdiction of the fed-

eral claims. This represents a departure from this Court's rul-

ings and the decisions of the Third, Fifth, Sixth, Seventh, Eight

and Ninth Circuit Courts.

B. This Court Has Held that Abstention is Disfavored in

§ 1983 Cases.

Because of the nature of the remedy sought by plaintiffs in

civil rights cases, this Court has held that abstention is not

favored in actions brought under 42 U.S.C. § 1983. Mayor of

Philadelphia v. Educational Equality League, 415 U.S. 605,

627, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974). “[T]o force the

plaintiff who has commenced a federal [civil rights] action to

suffer the delay of state court proceedings might itself effect

10

the impermissible chilling of the very constitutional right he

seeks to protect.” Zwickler v. Koota, 389 U.S. 241, 252, 88

S.Ct. 391, 19 L.Ed.2d 444 (1967). Nevertheless, in extreme cir-

cumstances, Pullman abstention has been applied in civil rights

cases, where the federal action raises a particularly difficult

question of state law. See Railroad Comm'n of Texas v. Pullman

Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). How-

ever, as a rule the Pullman doctrine is a ground for deferral,

rather than outright dismissal, until the state court has resolved

the state law issue. See Growe v. Emison, 1993 U.S. LEXIS

1780, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993).

C. The Circuits Differ on the Application of This Court's

Principles Regarding Abstention in Civil Rights Cases.

While all of the Circuits cite the this Court's general propo-

sition that Pullman abstention should be reluctantly invoked in

§ 1983 actions, the Circuits differ in their application of this

principle. The Third, Sixth and Ninth Circuits have interpreted

this general proposition strictly and have been extremely reluc-

tant to abstain in § 1983 cases. The Fifth Circuit has interpreted

this principle loosely and has often abstained under Pullman in

civil rights actions. The Seventh and Eight Circuits do not

appear to have a definitive rule on this matter, but generally

sanction Pullman abstention in § 1983 cases. However, even

the Circuits that have routinely invoked Puliman abstention in

this type of case, have held that it is proper to stay or defer the

federal court proceeding—while retaining jurisdiction—unti!

the state court has determined the state law issues. In dis-

missing this action under Pullman without retaining jurisdic-

tion, the Second Circuit has created a conflict with this Court

and other Circuits.

D. The Third, Sixth and Ninth Circuits Strongly Disfavor

Invoking Pullman Abstention in § 1983 Cases.

1. Third Circuit: In Conover v. Montemuro, 477 F.2d 1073

(3d Cir. 1973), a class action civil rights case was brought

under § 1983 challenging the intake procedures of the Family

1]

Court Division of the Philadelphia Court of Common Pleas.

The District Court for the Eastern District of Pennsylvania

abstained under the Pullman and Younger'® abstention doc-

trines. The Circuit Court reversed, holding that abstention was

not warranted in § 1983 claims. The Court stated that while

normally abstaining under Pullman would be appropriate to

avoid a premature decision of a federal constitutional issue,

“the mandate from Congress in the Civil Rights Acts passed

pursuant to the fourteenth amendment that federal courts will

afford a prompt remedy for violations of that amendment” took

precedence. /d., at 1079-1080. The Court further stated that

“the district court cannot abdicate its responsibility as an Arti-

cle III court to determine facts which are of constitutional sig-

nificance. . . . The purpose of Congress in enacting the Civil

Rights Acts was to provide a federal forum for the enforcement

of federal rights. (citation omitted) Where an adjudication of

these rights rests heavily on a factual determination, the ulti-

mate responsibility for making this determination lies with the

article III courts.” /d., at 1081.

The District Courts in the Third Circuit have applied the

Conover analysis. In Christy v. Hamel, 87 F.R.D. 381 (M.D. Pa.

1980), a former inmate of a state hospital brought a § 1983

action against the hospital's guards alleging that his civil rights

were violated when he was transferred to a maximum security

wing of the hospital. Defendants requested that the court

abstain from hearing the matter under Pullman. The Court

declined to abstain stating, “since Christy's claim is a civil

rights action, it is ‘one of the least likely candidates for absten-

tion’ ". /d., at 387. The District Court applied the Conover

analysis concluding that enforcement of the Pul/man doctrine

would cause inordinate delay which was not appropriate when

dealing with civil rights claims. See also, Pilgrim Med. Gr. v.

N.J.S. Bd. of Med. E., 613 F.Supp. 837 (D.N_J. 1985) (The Dis-

" The Younger abstention doctrine first articulated in Younger v. Har

ris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) applies when a federal

court will potentially interfere with a pending state criminal proceeding or

a state civil proceeding that implicates important state interests.

12

trict Court declined to abstain in a civil rights action holding

that abstention was not warranted because of the potential

lengthy delay in the adjudication of plaintiff's rights).

2. Sixth Circuit: In Palmer v. Columbia Gas of Ohio, Inc.,

479 F.2d 153 (6th Cir. 1973), an action was broughi by gas

consumers against the gas company under 42 U.S.C. § 1983

alleging unconstitutional termination of gas service. The gas

company argued that the District Court should have abstained

from jurisdiction because the matter concerned state law issues ~

and a remedy was available to the plaintiffs through the Pub-

lic Utilities Commission of Ohio. The Sixth Circuit declined to

abstain, stating that “cases involving vital questions of civil

rights are the least likely candidates for abstention.” /d., at 170.

The Court reasoned that federal courts have a responsibility to

take jurisdiction of “important civil rights cases." /d. _

A later decision in the Sixth Circuit re-affirmed the propo-

sition that a federal court should not abstain in civil rights

actions. In Hanna v. Toner, 630 F.2d 442 (6th Cir. 1980), cert.

denied, 450 U.S. 919, 101 S.Ct. 1365, 67 L.Ed.2d 346 (1981),

a § 1983 action was brought by four prisoners in the Cuyahoga

County Juvenile Detention Home against the administrators of

the Detention Home for alleged inhumane treatment. The U.S.

District Court for the Northern District of Ohio abstained under

Pullman and Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct.

1098, 87 L.Ed.2d 1424 (1943) from hearing the action. The

Circuit Court reversed, stating that this type of civil rights

action “represent the exact sort of disputes over citizens rights

with which the federal courts were created to deal.” /d., at 446.

See also, Crawley v. Hamilton County Commissioners, 744

F.2d 28, 31 (6th Cir. 1984) (The Court reversed the District

court's decision to abstain in a civil rights action following the

standard in Hanna, stating that a § 1983 action was “the kind

of case that should be litigated in a federal forum.”)

3. Ninth Circuit: In Canton v. Spokane School District, 498

F.2d 840 (9th Cir. 1974), an action was brought under 42

U.S.C. § 1983 against a school district by parents and students

who were unable to pay fees and thus, were precluded from

13

participating in certain public school programs. The District

Court abstained. The Circuit Court reversed, stating that “it is

reasonable to conclude that cases involving vital questions of

civil rights are the least likely candidates for abstention.

Indeed, the objectives of the Civil Rights Act would be

defeated if we decided that this federal claim grounded on an

alleged violation of the federal constitution would have to stag-

nate in the federal court until some nebulous or nonexistent

remedy was pursued like a will-o’-the-wisp in the state court.”

Id., at 846, quoting Wright v. McMann, 387 F.2d 519 (2nd Cir.

1967). Based upon this analysis, the Court concluded that

abstention was not warranted.

The principles enunciated in Canton have been applied in

several Ninth Circuit cases. In Toussain v. Yockey, 722 F.2d

1490, 1495 (9th Cir. 1984), the Court refused to abstain in an

action brought by prisoners challenging their confinement in

administrative segregation in state prisons, stating “abstention

is not favored in section 1983 cases.” In Pue v. Sillas, 632 F.2d

74 (9th Cir. 1980), the Court reversed the lower court’s deci-

sion to abstain under Pullman in a civil rights action brought

by a motorist alleging that the state’s statutory presumption that

a registered owner of a vehicle was guilty of parking violations

violated his due process rights. The Court held that this type of

abstention is undesirable when a federal hearing is sought on

a section 1983 claim.

E. The Fifth Circuit Has Favored Abstention under Pullman

in Civil Rights Cases.

Fifth Circuit: The Fifth Circuit, while paying lip service to

the principle that abstention is not favored in section 1983 case,

has invoked Pul/man abstention in civil rights actions without

hesitation. In Romero v. Coldwell, 455 F.2d 1163 (Sth Cir.

1972), plaintiffs brought a civil rights class action for a deter-

mination of whether the one-man, one-vote concept applied to

elected justices of the peace in El Paso County, Texas. The Cir-

cuit Court affirmed the lower court's decision to abstain under

the Pullman doctrine. The Court stated that “traditional absten-

14

tion principles apply to civil rights cases” and that “{t)he poli-

cies furthered by abstention cannot be circumvented merely by

the plaintiff’s selecting a federal forum to the exclusion of the

state forum.” /d., at 1167. Finally, the Court stated that

“{rjetention of jurisdiction by the abstaining federal court

pending state court determination is usually the better practice

where a constitutional issue is involved.” /d. Thus, the Court

held that in § 1983 cases, it is proper to abstain under Pullman,

allowing the state court to decide the state law issue but retain-

ing jurisdiction pending the state court determination.

In a later case, the Fifth Circuit articulated its policy of

abstaining under Pullman in § 1983 cases. In Nissan Motor

Corp. v. Harding, 739 F.2d 1005 (Sth Cir. 1984), an automobile

manufacturer brought a civil rights action against the Texas

Motor Vehicle Commission alleging that the retroactive appli-

cation of the Texas Motor Code violated its due process rights.

The Fifth Circuit affirmed the District Court’s decision to

invoke Pullman abstention, holding that Pul/man abstention

was proper in § 1983 cases as a “means of postponing federal

jurisdiction to obtain a definitive state resolution of ambiguous

State iaw issues”. /d., at 1011. The Court stressed, however,

that “the Pullman abstention doctrine does not require a litigant

remanded to state court to present his federal claims there: he

may reserve such claims for federal court disposition.” /d.

In several other cases, the Fifth Circuit has invoked Pullman

abstention in section 1983 cases in a routine manner. See Mere-

les v. Crosby County, 724 F.2d 431, 433 (Sth Cir. 1984) and

Stephens v. Bowie County, 724 F.2d 434, 436 (Sth Cir. 1984).

(The Court abstained in two civil rights actions brought by

indigent residents of a county alleging that they were denicd

due process by the county’s failure to establish objective cri-

teria for provisions of monetary aid under a Texas Statute, stat-

ing that “strong policy considerations militate in favor of

abstention.”’) See also, Signad v. City of Sugar Land, 753 F.2d

1338, 1340 (Sth Cir. 1985), cert. denied, 474 U.S. 822, 106

S.Ct. 75, 88 L.Ed.2d (1985). (The court stated that “the Pull-

man type abstention is commonplace with section 1983

15

claims”, while declining to abstain under the Colorado River"

doctrine).

F. The Seventh and Eighth Circuits Have Generally Sanc-

tioned Invoking Pullman Abstention in Civil Rights

Actions.

1. Seventh Circuit: While not enunciating a clear rule that

Pullman abstention should be routinely invoked and is com-

monplace in § 1983 actions, both the Seventh and Eight Cir-

cuits have approved of Courts abstaining under Pullman in

civil rights actions. In Lewellyn v. Gerhardt, 513 F.2d 184 (7th

Cir. 1975), plaintiffs brought a civil rights action challenging

a Statute under which the state transferred a tract of land to a

county. The District Court for the Southern District of Indiana

dismissed the complaint under the Pullman abstention doctrine.

The Court affirmed the decision to invoke Pullman abstention,

holding that abstention is appropriate notwithstanding the fact

that plaintiff brought the suit as a civil rights action. The Court,

however, reinstated the cause of action and directed the District

Court to enter an abstention order that postpones any decision

of the federal question pending the determination of the state

court. See also, Waldron v. McAtee, 723 F.2d 1348 (7th Cir.

1983). (The Court held that it was proper to invoke the doctrine

of abstention in a civil rights action, but stayed the action pend-

ing state court determination of the interpretation of a loitering

ordinance that plaintiffs claimed was unconstitutional.)

2. Eighth Circuit: In George v. Parratt, 602 F.2d 818 (8th

Cir. 1979), state prisoners brought a civil rights action against

the warden of the prison claiming constitutional violations aris-

ing out of the deprivation of certain good time credits for time

served in the state prison complex. The Court affirmed the

lower court’s decision to abstain, holding that there are numer-

MN The Colorado River doctrine, first articulated in Colorado River

Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236,

47 L.Ed.2d 483 (1976) gave federal courts discretion to abstain because of

the pendency of a parallel state court proceeding.

16

Ous civil rights cases where abstention has been held to be

appropriate. The Court further determined that while the state

court should decide the state law issues, the plaintiff’s federal

right to due process must still be adjudicated in federal court.

See also, Coley v. Clinton, 635 F.2d 1364 (8th Cir. 1980). (The

Court cited Parratt in deciding to abstain under Pullman in an

action brought by former inmates of a state mental hospital

seeking to maintain a class action civil rights suit against the

State of Arkansas for its practice of confining all inmates to a

certain institution.)

G. The Second Circuit Decision Creates a Conflict With This

Court and the Other Circuits.

The Second Circuit decision wholly disregarded this Court’s

principle that abstention is not favored in § 1983 cases. In addi-

tion, the Second Circuit applied the Pullman abstention doc-

trine to dismiss, rather than defer the federal adjudication of

petitioners’ civil nghts claims. The Court admitted as much, by

Stating “{o}rdinarily, dismissal is not the proper result of Pull-

man abstention. Instead, the district court should stay the fed-

eral proceedings to permit the parties to resolve in state court

the difficult issue of state law. Then either the federal case

would be mooted, or the parties might return to federal court to

resolve the remaining federal issues in light of the then estab-

lished state law.” (12a) Nevertheless, the Court dismissed the

action, rather than staying the federal claims allegedly

“because no federal damage claims remain.” (12a)

However, Berman’s federal claims for a declaratory judg-

ment and injunctive relief remain. These claims seek to have

the federal court enjoin the state officials from continuing their

deprivation of petitioners’ rights long after the alleged “immi-

nent harm to the environment” has passed. These claims remain

regardless of the state court interpretation of the respondents’

authority under the state summary abatement statute.

The Second Circuit should have stayed rather than dismissed

this action and allowed the state court to interpret and define

the extent of the DEC’s authority under the summary abatement

ee ee

17

Statute. By merely staying the action, the federal court would

retain jurisdiction Over petitioners’ civil rights claims and

determine their validity once the state law issues were resolved.

In that scenario, the concem expressed in Pullman that federal

courts should not determine state law issues, would vanish.

Even in those circuits where Pullman abstention is consid-

ered appropriate in civil rights cases, the courts have held that

the plaintiffs’ right to due process should be adjudicated in fed-

eral court. See Romero v. Coldwell, at 1167 (Sth Cir.); Nissan

Motor Corp. v. Harding, at 1011 (Sth Cir.); Lewellyn v. Ger-

hardt, (7th Cir.); Waldron v. McAtee, (7th Cir.) and George v.

Parratt, (8th Cir.).

In dismissing Berman's civil rights claims altogether, the

Second Circuit has vitiated the fundamental purpose of § 1983

which is to provide a federal forum to adjudicate civil rights

violations by state officials where state courts may be unable

or unwilling to do so. In addition, by dismissing the action out-

right, the Second Circuit decision created a conflict with this

Court's decisions and the decisions of several other Circuits.

Accordingly, this Court should grant certiorari to resolve the

conflict created by the Second Circuit’s decision.

VI. The Second Circuit Failed To Apply The Appro-

priate Test Established By This Court To Deter-

mine Whether An Official Is Entitled To Qualified

Immunity.

A. This Court Modified the Test for Qualified Immunity in

Harlow v. Fitzgerald.

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73

L.Ed.2d 396 (1982), this Court modified the standard for deter-

mining whether officials are entitled to qualified immunity.

Before Harlow, the standard was that “qualified immunity

would be defeated if an official knew or reasonably should

have known that the action he took within his sphere of official

responsibility would violate the constitutional rights of the

plaintiff, or if he took the action with the malicious intention

18

to cause a deprivation of constitutional rights or other injury.”

Id., at 815, citing Wood v. Strickland, 420 U.S. 308, 95 S.Ct.

992, 43 L.Ed.2d 214 (1975).

In Harlow, the Court derided the so-called “subjective” ele-

ment in the standard for qualified immunity, stating that “(t]he

subjective element of the good-faith defense frequently has

proved incompatible with our admonition in Butz’? that insub-

stantial claims should not proceed to trial.” Harlow at 815-816.

This Court concluded that an objective reasonable man test

should apply and “bare allegations of malice should not suffice

to subject govemment Officials either to the costs of trial or the

burdens of broad-reaching discovery.” /d., at 817-818.

The Court’s intent was to define the limits of qualified

immunity in objective terms and therefore, avoid excessive dis-

ruption of government. The Court decided to alter the test and

focused on the objective reasonableness of an official’s con-

duct, stating government officials are shielded from liability

“insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable man

would have known.” /d., at 818. The Court further stated that

“twjhere an official could be expected to know that certain

conduct would violate statutory or constitutional rights, he

should be made to hesitate; and a person who suffers injury

caused by such conduct may have a cause of action.” /d_., at

819.

However, while Harlow changed the test for qualified immu-

nity from a subjective one to an objective one, it did not elim-

inate the reasonably should have known prong of the test. It

does not appear that the intent of Harlow was to furnish offi-

cials with immunity in every case where they claim that they

did not know that they had violated constitutional rights. Har-

low changed the analysis to whether a reascnable man objec-

tively should have known that his actions were violative of the

Constitution. However, the Court clearly stated that where an

12 Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895

(1978).

19

official reasonably should have known that his actions violated

constitutional rights, he is not immune.

B. The Fifth, Sixth, Seventh, Eighth and Tenth Circuits Have

All Applied the Reasonably Should Have Known Prong of

the Harlow Test.

Several Circuit Courts have followed the Harlow reformu-

lation of the qualified immunity test and have continued to

apply the reasonably should have known prong of the test. In

Cronen v. Texas Dept. of Human Services, 977 F.2d 934 (Sth

Cir. 1992), an indigent person brought a civil rights action

against state officials for their alleged unconstitutional denial

of his request for food stamps. The Fifth Circuit Court of

Appeals applied the Harlow objective test of whether ‘he

defendant violated clearly established statutory or constitu-

tional rights. The Court further held that “we must also con-

sider whether the defendants reasonably should have known of

the right [to food stamps]. That, too, is a factual issue inap-

propriate for resolution on summary judgment.” /d., at 940.

Holding that the defendants reasonably should have known that

their actions violated plaintiffs’ constitutional rights, the Court

denied summary judgment.

The Sixth Circuit has applied the test for qualified immunity

test in the same manner as the Fifth Circuit. In Long v. Norris,

929 F.2d 1111 (6th Cir. 1991), cert. denied, 1991 U.S. LEXIS

4535, 112 S.Ct. 187, 116 L.Ed.2d 148 (1991), inmates brought

a § 1983 action against prison officials challenging a policy

which authorized strip and body cavity searches of visitors.

The Sixth Circuit Court denied the prison officials qualified

immunity, applying “the objective reasonableness test [which]

focuses on whether an official, given the facts that the official

knew or reasonably should have known about the situation,

should have known that his or her particular conduct would not

pass scrutiny when applied to the law.” /d., at 1115.

The Tenth Circuit has similarly applied the Harlow test. In

Chapman v. Nichols, 989 F.2d 393 (10th Cir. 1993), several

prisoners brought a civil rights action against a sheriff to

20

recover damages after they were subjected to strip searches at

jail following arrest. The Court applied the “knew or reason-

ably should have known of the constitutionally violative effect

of their actions.” test. /d., at 397. The Court further stated that

““{l]aw enforcement officials must be cognizant not only of how

far their authority extends, but also of the point at which their

authority ends.” /d., at 397, quoting, Ward v. County of San

Diego, 791 F.2d 1329 (9th Cir. 1986), cert. denied, 483 U.S.

1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987). The Court found

that the officials reasonably should have known that their

authority did not extend to strip searches and held they were

not immune from liability.

Similarly, in Walters v. Grossheim, 990 F.2d 381 (8th Cir.

1993), the Eighth Circuit held that prison officials were not

entitled to qualified immunity because they reasonably should

have known that they had violated an prison inmate's civil

rights by failing to return the inmate to a less restrictive envi-

ronment. See also, Hill v. Shelander, 992 F.2d 714 (7th Cir.

1993) (The Seventh Circuit interpreted the Harlow test using

an objective analysis of whether a government official should

have known that his actions violated constitutional rights in

denying immunity for a prison sergeant who beat an inmate.)

C. The Second Circuit Decision in This Case Failed to Even

Consider Whether Jorling and Marsh Reasonably Should

Have Known That Their Actions Would Violate Peti-

tioners’ Constitutional Rights.

The Second Circuit Decision completely omitted the rea-

sonably should have known prong of the qualified immunity

test from its analysis of respondents’ actions. The Court merely

Stated that the law governing their conduct was not clearly

established and therefore, they were immune from liability. The

Court failed to consider whether respondents Jorling and Marsh

reasonably should have known that their authority under the

summary abatement statute did not extend to permanently

depriving petitioners of their business when no New York laws

were alleged to have been violated. The Second Circuit further

21

failed to consider whether respondents reasonably should have

known that the federal constitution does not allow petitioners’

rights to be violated without a pre-deprivation hearing. The

Court merely found that because a Statute existed purportedly

giving respondents’ authority to issue a summary abatement

decision, they did not know that their actions were violative of

petitioners’ rights.

The Second Circuit’s analysis is contrary to the Harlow hold-

ing that “[w]here an official could be expected to know that

certain conduct would violate statutory or constitutional rights,

he should be made to hesitate; and a person who suffers injury

caused by such conduct may have a cause of action.” Harlow,

at 819. The decision also contradicts the Fifih, Sixth, Seventh,

Eighth and Tenth Circuits who have all continued the apply the

reasonably should have known prong of the Harlow test. In

light of the Second Circuit's failure to apply the Harlow test in

the correct manner and its conflict with the other Circuit

Courts, this Court should grant certiorari to resolve these

issues.

22

Conclusion

The decision of the Second Circuit deprives Berman of its

only avenue of redress for the permanent confiscation of their

means of livelihood. The federal preemption of the actions of

Jorling and Marsh which should have been dispositive of this

case was ignored in favor of the misapplication of the Pullman,

Burford and Harlow doctrines. This petition should be granted

to permit a meaningful review of the denial of Berman’s busi-

ness in perpetuity.

Respectfully submitted,

Christopher R. Carpentieri

Counsel of Record

H. David Kotz

Stults Balber Horton & Slotnik, P.C.

1370 Avenue of the Americas

New York, New York 10019

(212) 246-2400

Attorneys for Petitioners Berman

Enterprises, Inc., General Marine

Transport Corporation, Standard

Marine Services, Inc., Jane Frank

Kresch, Evelyn Berman Frank

and Peter M. Frank

November 1993

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 443—August Term, 1992

(Argued: December 14, 1992 Decided: August 24, 1993)

Docket No. 92-7680

BERMAN ENTERPRISES, INC.: GENERAL MARINE TRANS-

PORT CORPORATION; STANDARD MARINE SERVICES.

INC.; JANE FRANK KRESCH, as Secretary of Berman

Enterprises; EVELYN BERMAN FRANK, as Chief Excec-

utive Officer of General Marine Transport Corporation

and as an Officer of the other named corporations: and

PETER M. FRANK, as President of Gencral Marine

Transport Corporation,

Plaintiffs-Appellants,

—against—

THOMAS C. JORLING, in his individual capacity and in his

official capacity as Commissioner of the New York

State Department of Environmental Conservation: and

LANGDON MARSH, in his individual capacity and in

his official capacity as Executive Deputy Commis-

sioner of the New York State Department of Envi-

ronmental Conservation,

Defendants-Appellees

Before:

CARDAMONE and PRATT, Circuit Judges,

and Morris E. LASKER, District Judge of the United States

District Court for the Southern District of New York,

sitting by designation.

Appeal from a judgment of United States District Court

for the Eastern District of New York, Jack B. Weinstein,

Judge, that dismissed complaint challenging abatement

orders and barge-license revocations imposed on plaintiffs

for polluting New York harbor.

Affirmed.

CHRISTOPHER CARPENTIERI, New York, NY

(Stults, Balber, Horton & Slotnik, of

counsel), for Plaintiffs-Appellants.

GREGORY J. NOLAN, Assistant Attorney Gen-

eral for the State of New York (Robert

Abrams, Attorney General; Jerry Boone,

Solicitor General, of counsel), for Defen-

dants-Appellees.

PRATT, Circuit Judge:

Plaintiffs appeal from a judgment of the United States

District Court for the Eastern District of New York, Jack

3. Weinstein, Judge, that dismissed their amended com-

plaint, which challenged summary abatement orders

issued by defendants under New York Environmental

3a

Conservation Law § 71-0301. Berman Enterprises, Inc. v.

Jorling, 793 F. Supp. 408 (E.D.N.Y. 1992). The orders

prohibited plaintiffs from operating some of their oil and

sludge barges in New York Harbor. The district court dis-

missed the complaint on multiple grounds. We affirm, on

grounds of qualified immunity and abstention.

BACKGROUND

Plaintiffs—three corporations and three of their offi-

cers—operate oil-carrying and sludge-carrying barges in

various areas, including New York harbor. The orders at

issuc treated plaintiffs as a single business run by the

Berman and Frank familics and drew no distinctions

between or among the individual plaintiffs and the cor-

porate plaintiffs. Hereinafter, plaintiffs are referred to as

“Berman”,

Defendant Thomas Jorling is Commissioner of the New

York State Department of Environmental Conservation

(“DEC”). Defendant Langdon Marsh is Executive Deputy

Commissioner of the DEC. Berman sued both Jorling and

Marsh in their individual and official capacitics.

In late September 1990, one of Berman’s barges sank tn

the Arthur Kill at Staten Island, New York, spilling both

oil and sludge into the water. Three wecks later Jorling,

acting under N.Y. Envtl. Conserv. Law § 71-0301 (Mc-

Kinney 1984), issued a summary abatement order, which

is the principal target of this lawsuit. By that order Jorling

(1) immediately suspended the petroleum-facility licenses

for 14 of Berman’s barges, (2) required Berman to cmply

all cargo from the barges, and (3) ordered that the barges

“shall remain docked and shall not be operated in the New

York Marine district”.

rr

4a

The specific barges involved are identified in the sum-

mary abatement order as “listed by number in Appendix

1”. Appendix 1 was not, however, supplied to this court

as part of cither the parties’ joint appendix or the record

on appeal filed with the clerk. While there are disputes

over many of the circumstances affecting individual

barges, those disputes do not affect the outcome of this

appeal, and the absence of Appendix 1 from the record

docs not prevent our deciding this case.

Section 71-0301 requires that a summary abatement

order provide the target of the order with an opportunity

for a hearing within 15 days. Accordingly, Jorling’s Octo-

ber 18, 1990, order scheduled a hearing for October 30,

1990, to address the merits of the summary abatement

order as well as revocation of the 14 petroleum-facility

licenses that DEC had previously issued to Berman’s

barges under New York’s Navigation Law. See N.Y. Nav.

Law § 174 (McKinney 1989); 17 N.Y.C.R.R. § 30.10(b).

Berman immediately commenced an action in the

United States District Court for the Southern District of

New York, John E. Sprizzo, Judge, seeking to enjoin

enforcement of any provisions of New York’s Environ-

mental Conservation Law, the Navigation Law, or the

summary abatement order that would prevent Berman

from operating its 14 barges that comply with federal law.

Berman’s claim was grounded in 42 U.S.C. § 1983 and

advanced arguments based on the supremacy clause, the

commerce clause, and the fourteenth amendment.

On October 30, 1990, Judge Sprizzo refused to interfere

with the state’s proposed hearing, and seven days later the

partics stipulated to discontinue the Southern District

action. Berman’s claims under the supremacy clause and

commerce clause were discontinued with prejudice; its

Sa

claims under the fourteenth amendment were discontinucd

without prejudice.

The hearing went ahead before an administrative law

judge (“ALJ”) of the DEC’s Office of Hearings, Edward

Buhrmaster, and testimony was taken on various days

over the course of the next month. After post-hcaring

memoranda were submitted, the hearing record was

closed on January 22, 1991. In a 60-page, single-spaced

decision the ALJ resolved most of the factual and Icgal

issues against Berman. He concluded with four recom-

mendations:

(1) The 14 major-facility licenses that had been sus-

pended should be revoked.

(2) The summary-abatement order issucd by Jorling

should be continued without modification.

(3) Modifications proposed by the staff to allow for

limited operation of the barges should be rejected.

(4) The summary abatement order should not be broad-

ened to incorporate four other barges owned by Berman,

because those barges were not named in the order, and the

request to incorporate them was made after the eviden-

tiary record was closed.

Under the procedure established by the DEC, the ALJ's

report and recommendations were to be revicwed and

acted upon by the commissioner. See 6 N.Y.C.R.R.

§ 622.14 (final determination and order). Commissioner

Jorling, however, had disqualified himself from any fur-

ther participation in the proceeding and had delegated his

responsibilities to Executive Deputy Commissioncr

Marsh.

6a

By decision dated March 25, 1991, Marsh reviewed

Berman’s objections to the ALJ’s report and recommen-

dations and entered a final order that followed the rec-

ommendations. Specifically, Marsh found that Berman

operated roughly 30 vessels in the New York harbor area,

including oil barges, sludge barges, and tugs; that the sev-

cral corporations acted under the common management of

the Berman and Frank familics; that over the previous 11

years the 14 vessels that were the subject of the summary

abatement order had “compiled records of chronic non-

compliance with state and federal regulations which are

designed to protect the environment, public health and

safety”; that the vessels had received various citations

from the United States Coast Guard for both administra-

tive and safcty violations; that some of the violations had

involved serious injury or loss of life or environmental

damage; that there were some documented incidents of

pollution in New York harbor in which no violations were

cited; that some of the violations and pollution incidents

were the direct result of improper management by

Berman; that the “sheer number of violations and pollu-

tion incidents and their duration for over a period of

cleven years is * * * noteworthy”; that Berman had pre-

sented no information as to efforts it had undertaken over

the previous 1] ycars to implement programs of preven-

live maintenance or inspections, to improve management,

or otherwise to address the cause of the problems; and

that there was no explanation as to why Berman experi-

enced such difficulty in complying with the Coast Guard’s

safety regulations.

On the summary abatement issuc, Marsh concluded that

“the continued operation of these vessels by the Respon-

dents carrics with it a substantial risk that these and other

incidents will reoccur”: that the nature of Berman’s busi-

7a

ness and a survey of the incidents caused by its operations

in the past “demonstrate the potential for creating serious

environmental and safety hazards”; that “continued oper-

ation of the fleet of vessels by these Respondents carries

with it a serious risk of harm”; and that the harm is

“imminent” and “potentially quite serious”.

With respect to the suspended licenses, Marsh found

that revocation of the 14 licenses was required because

“continued operation of the barges represents a menace to

the New York harbor environment”.

Finally, Marsh ordered that the summary abatement

order was “confirmed in whole and extended”; that “no

modification to such Order is granted”; and that the 14

“major facility licenses” were revoked.

Berman then brought this action against both Jorling

and Marsh. Its first five causes of action, brought under

42 U.S.C. § 1983, sought damages against Jorling and

Marsh in their personal capacities for substantive and pro-

cedural due proccss violations; the sixth sought declara-

tory relicf that the defendants’ orders are unconstitutional;

and the seventh sought attorneys fees and costs. The

cighth and ninth causes of action, advanced under the

court’s supplemental jurisdiction, 28 U.S.C. § 1367,

sought to vacate the decision and order of defendant

Marsh under Article 78, N.Y. Civ. Prac. L. & R. §§ 7801-

7806 (McKinney 1981), as being arbitrary and capricious

and as lacking substantial evidence.

On defendants’ motion under rules 12(b)(1) and (6),

Fed. R. Civ. P. 12(b)(1), (6), Judge Weinstein dismissed

the complaint on multiple grounds. In a scholarly analy-

sis, he rejected Berman’s contention that federal law pre-

cmpted state authority to bar Berman’s barges from

operating in New York harbor. Further, he found that

8a

Berman’s entire complaint was barred by the cleventh

amendment; that both Jorling and Marsh enjoyed quali-

fied immunity; and that dismissal was also warranted

under Burford abstention and Pullman abstention. See

Burford v. Sun Oil Co., 319 U.S. 315 (1943); Railroad

Comm'n v. Pullman Co., 312 U.S. 496 (1941).

The district court did not expressly dispose of Berman’s

two claims under Article 78; implicitly, however, it

declined to exercise supplemental jurisdiction and dis-

missed them. As had been revealed at oral argument on

the motion to dismiss, those claims could still be asserted

in state court, since the statute of limitations had been

tolled under New York law by the bringing of this suit.

DISCUSSION

Preliminarily, we agree with Judge Weinstein’s rejec-

tion of Berman’s claim that federal! law preempts any state

regulation of Berman’s barges in New York harbor. As to

the remainder of the appeal, we affirm the judgment of the

district court on the combined grounds of qualified immu-

nity and abstention, but the district court’s rulings regard-

ing the cleventh amendment and Pullman abstention

require clarification.

A. kleventh Amendment.

Berman asscricd his § 1983 claims against Jorling and

Marsh in both their individual and official capacities. To

the extent that the suit sought damages from defendants in

their official capacities, dismissal under the eleventh

amendment was proper because a Suit against a State offi-

cial in his official capacity is, in effect, a suit against the

state itself, which is barred. //afer v. Melo, 112 S. Ct. 358

(1991). However, the cleventh amendment does not

9a

extend to a Suil against a state official in his individual

capacily, even when the conduct complained of was car-

ried out in accordance with state law. Hafer, 112 S. Ct. at

364-65. Judge Weinstcin concluded that the state is the

real party in interest in this case. We disagree. The com-

plaint specifically seeks damages from the defendants in

their individual capacities and the mere fact that the state

may reimburse them docs not make the state the real party

in interest. Whether or not a state would choose to reim-

burse an official for damages for constitutional harm he

caused in his individual capacily is a matter of no concern

to a federal court.

Nor was Berman’s claim for declaratory relief barred

by the eleventh amendment. Under Ex Parte Young, 209

U.S. 123 (1908), acts of state officials that violate federal

constitutional rights are deemed not to be acts of the state

and may be the subject of injunctive or declaratory relief

in federal court. Kentucky v. Graham, 473 U.S. 159, 167

n.14 (citing Monell v. New York City Dep't of Social Ser-

vices, 436 U.S. 658 (1978)).

To the extent, therefore, that Berman sought (a) dam-

ages against defendants in their individual capacities and

(b) declaratory relief vacating the defendants’ two orders,

its claims were not barred by the cleventh amendment.

This does not mean, however, that the court’s ultimate

disposition of the action was wrong. Both the damage

claims and the declaratory judgment claim fail for dif-

ferent reasons: qualified immunity and abstention, respec-

tively.

B. Qualified Immunity.

Under Harlow v. Fitzgerald, 457 U.S. 800 (1982), and

its progeny, public officials have immunity from liability

10a

for damages under § 1983 when their “conduct does not

viclate clearly established * * * rights of which a rea-

sonable person would have known.” /d. at 818. When Jor-

ling and Marsh acted, the law governing their conduct

was not “clearly established”; therefore, both defendants

are entitled to qualified immunity from the claims against

them in their individual capacities.

The essence of Berman’s claims is that by issuing the

summary abatement order and the final order the defen-

dants excecded their authosity under state law and thereby

deprived Berman of property without due process. The

critical issue then is whether the commissioners had the

authority to issue the abatement orders and to revoke the

licenses. The answers require extensive interpretations of

State statutes and regulations, application of those statutes

and regulations to facts before the commissioners, and an

evaluation of the potential harm that would result in the

absence of abatement.

Superficially, at least, defendants’ conduct here fol-

lowed the provisions of the New York statutes; both sum-

mary and final abatement orders are authorized, see N.Y.

Envtl. Conserv. Law § 71-0301; 6 N.Y.C.R.R. § 622.14(a),

as are revocations of the vessel licenses, see N.Y. Nav.

Law § 174; 17 N.Y.C.R.R. § 30.10. Nothing the defen-

dants did is expressly prohibited under state law. Under-

lying every one of Berman’s claims is its assertion that

Jorling and Marsh went too far in enforcing New York’s

rules against polluting rivers. Most particularly, Berman

attacks the abatement orders on the ground that they were

directed against the business itself, rather than against a

particular, imminent hazard to the environment. This

claim, as Judge Weinstein commented below, raises

“unresolved and difficult questions of state law” of which

“[t]he state courts have not had occasion to provide an

lla

authoritative interpretation”. Berman Enterprises, 793 F.

Supp. at 414.

We agrce that the parameters of the commissioners’

powers under the statutes and regulations is not well

defined or easily understood. Certainly, it cannot be said

it is “clearly established” that they lacked the authority to

act as they did. If Jorling was empowered to issue the

summary abatement order, Berman’s suit collapses. While

the commissioners’ claim to power is plausible, there is

no clear indication in the statutes or regulations that the

specific action taken here was authorized, and there are no

Cases ruling on the point. In short, the extent of the com-

missioners’ authority is not yet clearly delincated. Even

if it should ultimately turn out that they exceedcd their

authority, the uncertainty of their authority under New

York law protects them from liability for damages in this

suit under the doctrine of qualificd immunity.

Marsh is more clearly entitled to qualified immunity

than Jorling, for his actions followed a more clearly

defined statutory path. Marsh’s conduct involved review-

ing the ALJ’s findings and recommendations and making

a final determination of the abatement order and licensing

revocations. On the legal side, he stands in no weaker

position than Jorling: abatement and license revocation

are both contemplated by statute. On the factual side,

Marsh did not act summarily as did Jorling; instead, he

had an extensive record to work with, plus findings and

recommendations by the ALJ. Exercising his statutorily

based executive power in these circumstances was, there-

fore, protected by qualified immunity.

To this point we have established that Berman’s claims

against Jorling and Marsh are barred by the eleventh

amendment insofar as they are asserted against them in

12a

their official capacitics, and by qualified immunity inso-

far as they are assericd for damages against them in their

individual capacitics. What remains are Berman’s claims

for declaratory relicf and Article 78 relief, on which the

district court abstained.

C. Abstention.

The district court concluded that dismissal was proper

under both Pullman, 312 U.S. 496, and Burford, 319 U.S.

315. Ordinarily, dismissal is not the proper result of Pull-

man abstention. Instead, the district court should stay the

lcderal procecdings to permit the parties to resolve in

state court the difficult issue of state law. Then cither the

federal case would be mooted, or the parties might return

to federal court to resolve the remaining federal issues in

light of the then established state law.

Here, however, no federal damage claims remain. The

only unresolved federal claim is for a declaration as to

whether the abatement orders and license revocations are

valid, and that issuc turns on state law. Once the state

court resolves that issuc there will be nothing Icft to lit-

igate in federal court. Thus, dismissal of the federal claim

in ils cnlirely was appropriate.

The district court correctly perceived that the central-

ity of the state-law dispute over the extent of the com-

missioner’s power called for abstention. Retaining

jurisdiction for a later disposition, however, would not

have made any sense, because whichever way the state-

law issue might be resolved, Berman’s § 1983 claim

against the commissioners would fail. If the state court

should determine that the commissioners had authority to

issue the abatement orders, then Berman suffered no con-

Stitutional harm. On the other hand, if the state court

13a

should determine that they lacked that authority, whilc

Berman might have suffered a constitutional harm, the

commissioners’ qualified immunity would bar any mon-

clary recovery becausc, as we have already indicated,

until the state court has ruled on the issue it cannot be

said that their lack of authority was “clearly established”.

We also agree with Judge Weinstein that Burford

abstention, which does require dismissal, is appropriatc

here. As contemplated by federal law, states are given

considerable leeway in protecting the purity of their own

waters. See Federal Water Pollution Control Act, 33

U.S.C. § 1321(0)(2). New York, through a combination of

Statutes and regulations under the Environmental Con-

servation Law and the Navigation Law has cstablishcd a

complex, even bewildering, system for regulating such

matters as oil and sewage pollution. In a case such as this,

where the decisive issuc hinges entirely on the proper

meaning and reach of those state statutes and regulations,

a federal court should abstain in favor of the state’s inter-

preting its own law.

Upon oral argument of the motion before Judge Wein-

Stein, it was established that Berman had brought this

action within the period for commencing a state-court

Article 78 proceeding, and that the state statute of limi-

tations is tolled until this action is finally disposed of.

Since our disposition of Berman's state Article 78 claims,

as well as its § 1983 claim for declaratory relief, is dis-

missal for lack of jurisdiction, Berman is still able to pur-

suc those claims in state court, provided it moves

promptly—perhaps even before the mandate is issucd from

this court.

The judgment of the district court is affirmed.

14a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CV 91-2789

FILED MAy 18, 1992

BERMAN ENTERPRISES, INC., GENERAL MARINE TRANS-

PORT CORP., STANDARD MARINE SERVICES, INC., JANE

FRANK KRESCH, as Secretary of Berman Enterprises,

EVELYN BERMAN FRANK, as Chief Executive Officer of

General Marine Transport and as an officer of the other

named corporations, and PETER M. FRANK, as President

of General Marine Transport,

Plaintiffs,

—against—

THOMAS C. JORLING, Commissioner of the New York State

Department of Environmental Conservation, and

LANGDON MARSH, Executive Deputy Commissioner of

the New York State Department of Environmental Con-

servation,

Defendants.

MEMORANDUM, ORDER and JUDGMENT

APPEARANCES

For the Plaintiffs:

GRAHAM & JAMES

885 Third Avenue

New York, NY 10022

By: Christopher R. Carpentieri

15a

For the Defendants:

ROBERT ABRAMS

Attorney General of the State of New York

Environmental Protection Bureau

120 Broadway

New York, NY 10271

By: Stuart Miller

Assistant Attorney General

JACK B. WEINSTEIN, District Judge:

By authority of New York’s complex of environmental

Statutes and rules, plaintiffs, regarded by the state as persis-

tent polluters, have been put out of the business of trans-

porting petroleum and petroleum products on New York’s

waterways. Claiming violation of their federal rights, they —

seek damages and permission to restart their business. For the

reasons indicated below, the case must be dismissed.

Plaintiffs are left to pursue remedies in state court.

I. FACTS

Plaintiff Standard Marine Services, Inc. is a Delaware cor-

poration whose principal place of business is New York. It is

the corporate parent of plaintiffs Berman Enterprises, a New

York corporation, and General Marine Transport Corp., a New

Jersey corporation. The corporations own barges used for the

transportation of oil. The remaining plaintiffs are or were

officers of Berman and General Marine.

On September 27, 1990, one of the plaintiffs’ barges sank

in the Arthur Kill, a waterway between New Jersey and Staten

Island. An oil spill resulted. Pursuant to New York

Environmental Conservation Law § 71-0301, defendant

Jorling, the Commission of the Department of Environmental

Conservation (DEC), issued a Summary Abatement Order on

l6a

October 18, 1990. The order called for the plaintiffs to cease

immediately the operation of vessels invo'ved in petroleum

transportation.

Section 71-0301 grants the Commissioner broad power to

act summarily to abate environmental hazards. It provides in

part:

Notwithstanding any inconsistent provisions of law,

whenever the commissioner finds, after investigation,

that any person is Causing, engaging in or maintaining a

condition or activity which, in his judgment, [1] presents

an imminent danger to the health or welfare of the peo-

ple of the state or results in or is likely to result in irre-

versible or irreparable damage to natural resources, and

[2] relates to the prevention and abatement powers of the

commissioner and it therefore appears to be prejudicial

to the interests of the people of the state to delay action

until an opportunity for a hearing can be provided, the

commissioner may, without prior hearing, order such

person. . . to discontinue, abate or alleviate such con-

dition or activity, and thereupon such person shall imme-

diately discontinue, abate or alleviate such condition or

activity.

Id. (bracketed numbers added). Violators are subject to fines

and may be joined from the violative activity. See 6 NYCRR

§ 620. Persons subject to a Summary Abatement Order must

be granted a hearing as soon as possible within 15 days of the

order at which they may offer proof that their activity is not

threatening to the people or environment of the state.

The Summary Abatement Order in this case suspended

indefinitely the operation of 14 vessels owned by plaintiff

Berman and used for the transportation and storage of oil. It

also required plaintiffs to remove all oil from the vessels

within seven days. The Commissioner claimed that the plain-

tiffs’ past violations of New York Navigation Law indicated

that the continued operation of the vessels would likely result

in unreportec discharges of oil, toxic waste water or sewage

17a

sludge that would cause irreparable harm to the environment

and people of New York.

The Summary Abatement Order alsc suspended licenses

issued for the vessels under Article 12 of the New York

Navigation Law and gave notice that, in light of plaintiffs’

environmental record, the Commissioner intended to revoke

the licenses altogether pursuant to powers provided in 17

NYCRR § 30.10(b).

Article 12, entitled “Oil Spill Prevention, Control, and

Compensation,” codified at §§ 170-97, establishes a licensing

system designed to assure prompt cleanup of oil spills

through the creation of a cleanup fund. Section 174(1)-(4)

prohibits the operation of any “major facility” without a state

license. Major facilities are defined to include vessels that

transfer petroleum to other vessels. See New York Navigation

Law § 172(11). Licenses, which must be renewed each year,

are issued upon submission by the licensee of a certificate

providing information about a facility’s operation and upon

payment of licensing fees and surcharges indexed to the num-

ber of barrels of petroleum transferred to or from each major

facility. The licensee’s submissions must include a showing

that it (1) is complying with, or taking steps to comply with,

“state and federal plans and regulations for control of dis-

charges of petroleum, and the containment and removal

thereof” and (2) “can provide necessary equipment to prevent,

contain and remove discharges of petroleum.” /d. § 174(3) &

(8). The DEC Commissioner is authorized to impose fines if

the owner of a major facility fails to file a certificate or will-

fully falsifies information on a certificate. /d. §174(7).

Owners and operators of vessels that illegally discharge

petroleum are liable for cleanup costs and damages. /d. § 181.

In the event of a spill, either the state or affected individuals

may conduct a cleanup and obtain compensation for the cost

from a fund created by the collection of license fees, sur-

charges and fines. /d. §§ 176, 179.

In addition to suspending the vessels’ operation and giving

notice of the proposed license revocation, the Summary

18a

Abatement Order also gave notice, as required by section 71-

0301, of a hearing to be conducted starting on October 30,

1990 at offices of the DEC. The hearing before an adminis-

trative law judge lasted through November. Additional time

for document submissions was granted, and the record was

closed on January 22, 1991. The judge considered whether the

plaintiffs had violated section 71-0301 and whether their sec-

tion 174 licenses should be revoked. Testimony and court

records indicated that plaintiffs had repeatedly illegally

dumped waste materials, operated unlicensed vessels, and

withheld material information in obtaining operating licenses.

Based on this record, the administrative law judge recom-

mended upholding the Summary Abatement Order and license

revocations. On March 25, 1991, defendant Executive Deputy

Commissioner Marsh issued a Decision and Order to that

effect.

In October 1990, upon receiving the Commissioner’s

Summary Abatement Order, plaintiffs filed an action in the

United States District Court for the Southern District of New

York challenging the Order. Plaintiffs’ motion for a prelimi-

nary injunction was denied by that court. By joint stipulation,

the parties dismissed that case without prejudice on

November 6, 1991.

The current action was commenced in August of 1991.

Plaintiffs’ second amended complaint brings claims under 42

U.S.C. § 1983 for deprivation of liberty and property without

due process of law. Relief obtainable in the state courts under

Article 78 of the New York Civil Practice Law and Rules is

sought under the court’s supplemental jurisdiction. See 28

U.S.C. § 1367.

The crux of the complaint is that the Commissioner and

Executive Deputy Commissioner’s decisions to shut down the

plaintiffs’ oil transport business were driven by malice and

were made without factual foundation and with inadequate

procedural safeguards. Plaintiffs seek a declaration annulling

the Summary Abatement Order and the license revocation,

19a

damages against the Commissioner and the Executive Deputy

Commissioner personally and attorney’s fees.

Defendants have moved to dismiss the complaint for lack of

subject matter jurisdiction or for failure to state a claim. The

motion is based on eleventh amendment immunity, official

immunity and various theories of abstention. At oral argument

on the motion, plaintiffs raised the additional claim that the

Summary Abatement Order and license revocation should be

annulled because the statutes under which the Commissioner

acted—Environmental Conservation Law § 71-0301 and

Navigation Law § 174—are preempted by federal law. The

court denied defendants’ motion to dismiss with leave to

renew to allow for additional submissions and argument on

the preemption issue. The issues have been fully briefed and

argued.

II. LAW AND APPLICATION TO FACTS

A. ELEVENTH AMENDMENT

The eleventh amendment bars private citizens from suing

states in federal court. Hans v. Louisiana, 134 U.S. 1 (1890).

Officials sued in their personal capacity and local govern-

mental bodies generally do not share in the states’ immunity

from federal court jurisdiction. Scheuer v. Rhodes, 416 U.S.

232, 237-38 (1974); Monell v. Department of Social Servs.,

436 U.S. 658, 690 n.54 (1978). State executive branch agen-

cies, however, generally are protected as organs of the state,

at least insofar as “the governmental unit simply is func-

tioning as the alter ego of the state in accomplishing some

public purpose.” 13 C. Wright, A. Miller & E. Cooper,

Federal Practice and Procedure § 3524, at 136 (2d ed. 1984).

To prevent state officials from using the eleventh amend-

ment to circumvent federal and constitutional law, the

Supreme Court has lifted the bar in limited circumstances. See

generally Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 104-06 (1984) (discussing conflict between eleventh

20a

amendment and supremacy clause). Under Ex parte Young,

209 U.S. 123 (1908), acts of state officials that violate federal

constitutional or statutory rights are deemed not to be acts of

the state. Accordingly, Young allows actions in federal court

to enjoin state officials from committing ongoing or future

violations. See Edelman vy. Jordan, 415 U.S. 651, 664 (1974).

Expenses of the litigation may in some circumstances be

imposed upon the state ancillary to a claim for injunctive

relief. Quern v. Jordan, 440 U.S. 332, 344-45 (1979).

Because Ex parte Young was meant to balance federal

supremacy and state immunity, however, the Supreme Court

has carefully controlled its application. Suits against state

officials that, in form or substance, seek compensatory dam-

ages (rather than prospective declaratory or injunctive relief)

which will be paid with funds from the state treasury (rather

than from the pockets of individual officials) remain barred.

Edelman, 415 U.S. at 664; see also Green v. Mansour, 474

U.S. 64, 73 (1985) (“a declaratory judgment is not available

when the result would be a partial ‘end run’ around our decision

in Edelman”). In addition, suits against state officials that allege

violations of valid state law do not implicate the supremacy

Clause and will not be heard in federal court. Pennhurst, 465 U.S.

at 106.

On its face, the complaint in this action appears to skirt the

eleventh amendment bar because it is for declaratory relief and

seeks damages only from the Commissioner and Executive

Deputy Commissioner personally. In cases implicating the

eleventh amendment, however, district courts are required to

determine the real parties in interest by examining the substance

of the action and its likely effect. Ford Motor Co. v. Department

of Treasury, 323 U.S. 459, 463-64 (1945). The primary goal of

plaintiffs’ action is not prospective injunctive relief: the events

complained of have passed. Plaintiffs are asking in part for judi-

cial review of a final agency decision that is specific only to

them rather than injunctive relief from a continuing constitu-

tional violation. Cf. United States v. Yonkers Bd. of Educ., 893

F.2d 498, 503 (2d Cir. 1990) (no bar to suit alleging ongoing race

21a

discrimination). Plaintiffs are also asking for millions of dollars

in damages for the disruption of their oil transportation business.

This portion of the complaint is not personal to the defendants.

It concerns their official actions and the discretion granted them

to act by duly enacted laws of New York. In reality, this is an

action against the state for judicial relief from a state agency

decision and for compensatory damages that, if successful, would

be paid by the state. It is therefore barred by the eleventh amend-

ment. Edelman, 415 U.S. at 666.

B. QUALIFIED IMMUNITY

Even if the suit is against the defendants in their personal

capacity, they are afforded qualified immunity for violations of

constitutional rights resulting from the exercise of official pow-

ers. Butz v. Economou, 438 U.S. 478, 499-504 (1978); cf.

Sprecher v. Graber, 716 F.2d 968, 1976 (2d Cir. 1983). Under

Harlow vy. Fitzgerald, 457 U.S. 800, 818 (1982), immunity for

agency Officials acting within the discretion granted them by the

legislature will be found unless their conduct “violate[s] clearly

established statutory or constitutional rights of which a reason-

able person would have known.” Simply alleging, as plaintiffs do

here, that the defendants acted with a malicious intention to

deprive them of their rights, is no longer sufficient after Harlow.

See id. at 815-17 (rejecting “subjective” component of test for

qualified immunity; “bare allegations of malice should not suf- ~

fice”). Since even at this stage it is not clear that any federally

created rights have been violated, the defendants are entitled to

immunity.

C. ABSTENTION

Dismissal is also warranted on grounds of abstention under

Burford v. Sun Oil Co., 319 U.S. 315 (1943), and Railroad

Commission v. Pullman Co., 312 U.S. 496 (1941).

22a

1. Burford

Under Burford, federal courts should abstain from deciding

questions of state law where it would hamper the states’ efforts

to establish a coherent regulatory scheme on issues of importance

to the state. In Burford itself, Sun O.! Company had challenged

decisions by the Texas Railroad Commission granting Burford

permission to drill several oil wells. Since federal decisions

would have substantially interfered with the Commission’s reg-

ulatory procedures, the Supreme Court ordered the federal

Suit dismissed.

In this case, New York state has a comprehensive statutory

scheme and settled administrative procedures for dealing with

environmental and safety violations threatening pollution of

New York’s waterways and beaches. We take judicial notice

of the huge amount of oil and oil-related products transported

in and near New York’s shore lines by vessels, pipelines and

vehicles. Many oil spills occur each year in the port of New

York. They threaten the safety and welfare of the state’s pop-

ulation. Closing of New York’s beaches because of pollution

poses risks to the health and well-being of millions of people

and could prove a disaster to the state’s tourist industry. Fire

resulting from petroleum spills and the interruption of ship-

ping with adverse effects on commerce, jobs and tax revenues

are properly of great concern to New York state.

Deciding the state statutory and regulatory issues in this

case may disrupt state efforts to create a viable statutory

administrative scheme for coping with pollution of New

York’s waterways. Under Burford, dismissal is mandated as a

matter of law and in the exercise of the court’s discretion.

See, e.g., Onondaga Landfill Sys., Inc. v. Williams, 624 F.

Supp. 25 (N.D.N.Y. 1984) (abstention applied in case chal-

lenging constitutionality of New York Environmental

Conversation Law provisions granting DEC Commissioner

broad inspection powers).

2. Pullman

Abstention under Pullman is proper where a state pro-

ceeding can be brought with reasonable promptness, and a

decision on an unsettled question of state law may moot the

federal case. Once a court has abstained, the plaintiff must

generally file a state court action and expose the federal con-

Stitutional issue so that the state court may “interpret the

Statute in light of the constitutional objections presented.”

Government & Civic Org. Comm. v. Windsor, 353 U.S. 364,

366 (1957).

Plaintiffs’ complaint raises serious questions about New

York’s laws. On its face, section 71-0301 offers little guid-

ance on when the Commissioner may act, and apparently

offers none as to when and how Summary Abatement Orders

are terminated. Moreover, the licensing provisions of New

York’s Navigation law, while empowering the Commissioner

to impose fines, do not appear to explicitly authorize the

Commissioner to revoke licenses as implicitly claimed in

NYCRR § 30.10(b). It is precisely because these are unre-

solved and difficult questions of state law that abstention is

appropriate. The state courts have not had occasion to provide

an authoritative interpretation of these statutes. If a state court

were to decide that the Commissioner exceed his statutory

power, the plaintiffs’ licenses would be reinstated and the fed-

eral constitutional questions avoided. Accord Brookhaven

Aggregates, Inc. v. Williams, 23 E.R.C. 1927 (E.D.N.Y.),

aff'd, 795 F.2d 78 (2d Cir. 1985) (motion to enjoin Summary

Abatement Order denied on grounds of abstention).

D. PREEMPTION

State laws must give way to conflicting federal laws or reg-

ulations under the supremacy clause. See generally Wisconsin

Pub. Intervenor v. Mortier, 111 S. Ct. 2476, 2481-83 (1991).

Preemption will be found if compliance with both state and

federal law is impossible. See, e.g., Florida Lime & Avocado

Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). It may

also be inferred where state law inhibits conduct that federal

law specifically encourages. See, e.g., Nash v. Florida Indus.

24a

Comm'n, 389 U.S. 235, 239 (1967). Preemption will also

occur even in the absence of any conflict between state and

federal provisions if there is evidence that Congress has com-

pletely “occupied the field” in which the state seeks to reg-

ulate. See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947). Plaintiffs have not established that Article

12 of New York’s Navigation Law is preempted on any of

these theories. Plaintiffs’ contention that New York’s sum-

mary abatement statute ought to be voided as preempted is

also meritless.

Plaintiffs contend that the licensing provisions of New York

Navigation Law, insofar as they provide for the safe operation

of seagoing vessels, are preempted by the Ports and

Waterways Safety Act of 1972 (PWSA), as amended, see 33

U.S.C. §§ 1221-36, and by Subtitle II of Title 46 of the

United States Code (governing shipping). See 46 U.S.C.

§§ 2101-14702. 33 U.S.C. § 1223 authorizes the Secretary of

Transportation to establish rules and regulations to ensure the

safe operation of vessels in port waters. Existing regulations

affecting oil tankers include 33 C.F.R. § 161 (establishing

vessel traffic rules for various United States ports); 33 C.F.R.

§ 160 (empowering Coast Guard officers to ensure safety of

vessels and port waters); and 33 C.F.R. § 157 (establishing

design and operation regulations for oil tankers). Federal reg-

ulations promulgated under the PWSA also specifically grant

the United States Coast Guard authority to prohibit vessels

from operating in United States waters if the vessels’ opera-

tional records suggest that they pose an environmental threat.

See 33 C.F.R. § 160.113. 46 U.S.C. § 3703(a) requires the

Secretary of Transportation to prescribe regulations for the

design, construction, maintenance, and operation of certain

tanker vessels. See 46 C.F.R. § 30.01-30.30. Further regula-

tions specific to oil tankers are found in 46 U.S.C. § 3703a.

There is no conflict between these federal statutes and the

applicable state law. The only relevant substantive standards

(i.e., Standards governing the actual operation of oil-carrying

vessels) in Article 12 of New York Navigation Law are con-

tained in section 174, which sets as a condition precedent to

25a

the issuance of an operating license that the licensee comply

with state and federal plans for control of petroleum dis-

charges and that the licensee provide the necessary equipment

to prevent, contain and remove discharges of petroleum. New

York Navigation Law § 174(3) & (8). (Regulations of “new

vessels” sold in New York requiring “fuel oil tank vents” do

not become effective until 1994 and are not implicated in the

current suit. See New York Navigation Law § 173(2).)

Plaintiffs do not maintain that these conditions conflict with,

or inhibit the implementation of, federal law. In fact, they

admit that the New York regulations are for the most part

merely duplicative of their federal counterparts. Supplemental

Memorandum of Law in Opposition to Defendants’ Motion to

Dismiss, at 6-7. Plaintiffs thus concede that “[t]he issue of

federal preemption of New York State regulation in this area

is practically moot because . . . there is little state regula-

tion.” /d. at 6.

Since there is no direct conflict between state and federal

law, plaintiffs must rely on a claim that New York law dis-

courages behavior whose promotion is the aim of federal law

or that Congress has occupied the field of oil pollution con-

trol. Plaintiffs maintain that Ray v. Atlantic Richfield Co., 435

U.S. 151 (1978), is conclusively in its favor on these points.

Contrary to plaintiffs’ view, Ray indicates how far the

Supreme Court is willing to go to allow local regulation of oil

tanker activity. See L. Tribe, American Constitutional Law

§ 6-26, at 487 (2d ed. 1988) (“[T]he basic teaching of the

[Ray] decision is that state pressure to act in derogation of a

federal statutory scheme is not to be inferred lightly.”).

Ray concerned an attempt by the State of Washington to

impose restrictions on oil tankers operating in Puget Sound.

The Washington statute contained three provisions. The first

required tankers “enrolled in the coastwise trade” to have on

board a pilot licensed by Washington state; the second estab-

lished that vessels entering Puget Sound were required either

to meet specific design criteria or be escorted into port by

tugboats; the third provision excluded from Puget Sound any

tanker in excess of certain tonnage.

26a

The Supreme Court held that the third provision of the state

Statute was preempted because it directly conflicted with ves-

sel size regulations enacted by the Secretary of Transportation

pursuant to the PWSA. Ray, 435 U.S., at 173-75. Likewise,

the Court found that the first provision of the Washington law

requiring a local pilot for vessels engaged in coastwise trade

was, if read literally, preempted because it conflicted with

PWSA provisions governing the licensing of pilots. Neverthe-

less, the Court indicated that this holding was necessary only

because of the overly broad language of the state statute.

Insofar as the statute required local pilots for vessels only

when operating in the confines of Puget Sound, the Court

found no preemption. Accordingly, it reversed a lower court

ruling voiding the state provision in its entirety. /d. at 159-60.

The Court also stretched to avoid preemption in ruling on

the second provision (providing the option of meeting certain

design requirements or using a tugboat escort). The design

requirements were ruled preempted by regulations issued pur-

suant to PWSA provisions authorizing the Secretary of

Transportation to establish “comprehensive minimum stan-

dards of design, construction, alteration, repair, maintenance,

and operation,” as well as a system of inspection to ensure

compliance with these standards. See id. at 161. The Court

nevertheless held that the second provision was saved by the

fact that these preempted requirements were posed as an alter-

native to the tugboat escort. Since the latter provision was not

preempted, the statute was deemed enforceable to the extent

it imposed only the tugboat escort requirement. /d. at 172-73.

Plaintiffs claim that the licensing provisions of Article 12

of the New York Navigation Law are akin to the design, con-

struction and operation requirements and the tonnage limi-

tations invalidated in Ray. Ray, however, only invalidated

State provisions where there was an actual conflict between

state and federal law. Where there was no such conflict, the

Court steadfastly refused to infer preemption in the field of

environmental protection, an area that lies at the core of the

States’ police powers. See Ray, 435 U.S. at 157 (“[W)hen a

—_

27a

State’s exercise of its police power is challenged under the

Supremacy Clause, ‘we start with the assumption that the his-

toric police powers of the States [are] not to be superseded by

the Federal Act unless that was the clear and manifest purpose

of Congress.’ ”) (quoting Rice v. Santa Fe Elevator Corp..,

331 U.S., 218, 230 (1947)). The Ray Court thus emphasized:

We do not question in the slightest the prior cases hold-

ing that enrolled and registered vessels must conform to

“reasonable, nondiscriminatory conservation and envi-

ronmental protection measures .. .” imposed by a

State.

Id. at 164 (quoting Douglas v. Seacoast Prods., Inc., 431 U.S.

265, 277 (1977)).

The New York licensing provisions present an even weaker

case for preemption than did the provisions upheld in Ray. As

plaintiffs themselves emphasized at oral argument, section

174’s licensing scheme effectively places a tax on vessels

seeking to operate in New York waters to finance oil spill

cleanups. There is no evidence that such a tax discourages

navigation that Congress sought to promote. Particular classes

of vessels are not barred from New York harbors. The scheme

does not appear to require any design or operational modifi-

cations beyond those set by federal law. The licensing system

is not discriminatory against non-New Yorkers. Long Island

Oil Terminals Ass'n v. Commissioner, 421 N.Y.S.2d 405, 407

(App. Div. 3d Dep’t 1979). For all these reasons, a finding of

preemption is unwarranted.

If there were any doubt as to congressional design, provi-

sions in the Federal Water Pollution Control Aci (the Clean

Water Act), 33 U.S.C. §§ 1251-1387, as amended by ihe Oil

Pollution Control Act of 1990 (OPCA), 33 U.S.C. § 2701-61,

settle the issue. The original Clean Water Act specifically

establishes a system of liability for the release of oil into

waters that is almost identical to the provisions of Article 12.

See 33 U.S.C. § 1321. Vessel owners and operators are sub-

ject to imprisonment, fines, and civil liability for illegal dis-

28a

charges of oil. /d. § 1321(b). Section 1321(s) also allows use

of the “Oil Spill Liability Trust Fund” created under the

Internal Revenue Code to compensate government for cleanup

costs. The Fund is financed in part from fines assessed under

section 1321(b). Although section 1321 was recently modified

by the passage of the OPCA, vessel owners and operators are

still liable for unpermitted discharges of oil and the Fund con-

tinues to operate much as it did before. See 33 U.S.C.

§§ 2701(32), 2702.

If Congressional plans to preempt statutes like Article 12

were to be found anywhere, it would be in these two statutes.

Yet both the Clean Water Act and OPCA explicitly state the

opposite. 33 U.S.C. § 1321(0)(2) reads:

Nothing in this section shall be construed as preempting

any State .. . from imposing any requirement or lia-

bility with respect to the discharge of oil . . . into any

waters within such State, or with respect to any removal

activities related to such discharge.

33 U.S.C. § 2718(a)(1) provides that OPCA shall not

affect, or be construed or interpreted as preempting, the

authority of any Siate . . . from imposing any addi-

tional liability or requirements with respect to (A) the

discharge of oil or other pollution by oil within such

State; or (B) any removal activities in connection with

such adischarge....

Far from being preempted, Title 12 of New York’s Navigation

Law accepts the federal government’s invitation to provide

additional means of enforcing the federal policy favoring

clean water.

Practical considerations also favor upholding the state

Statutes against a claim of preemption. Plaintiffs in effect are

asking the federal courts to tell New York that it may not, in

the exercise of its police powers, plan against the desecration

of its waters and coasts that would otherwise surely result

from the high volume of oil barge traffic on the state’s water-

29a

ways. Plaintiffs would instead have the state rely entirely on

distant and overextended officials in Washington, D.C. for

basic environmental protections. Such an ineffective scheme

is not contemplated by the federal Constitution.

If there is any potential problem with the tax imposed by

Article 12 it is the burden such a tax places on interstate com-

merce. Yet there is no evidence indicating that the burden is

unreasonable or that it exceeds the cost of policing and pro-

tecting against adverse consequences of oil transportation on

New York’s waterways. The Ray Court indicated that com-

merce Clause challenges to environmental protection statutes

should not be entertained lightly. See Ray, 435 U.S. at 179-80.

Plaintiffs also argue that the Summary Abatement provi-

sions of New York Environmental Conservation Law section

71-0301 are preempted by the PWSA. This contention appears

to be moot. It is not clear from the record or the text of sec-

tion 71-0301 or the regulations promulgated pursuant to that

provision in 6 NYCRR § 620 at what point a Summary

Abatement Order ceases to have effect. Since full hearings on

the validity of the initial order have been afforded as required

by law, however, the only live issue seems to be the revoca-

tion of licenses under New York Navigation law.

In any event, Ray specifically allowed for statutes that are

designed to protect the environment against imminent (or

even non-imminent) harms. There is no showing of a conflict

Or overlap between sections 71-0301 and the PWSA because

the former does not establish criteria regulating the con-

struction and operation of vessels. As pointed out above, there

is no evidence of a federal program completely occupying this

field.

Plaintiffs press other objections to section 71-0301. They

content that the statute is void because it delegates the power

to issue Summary Abatement Orders without specifying any

objective controlling criteria. Alternatively, they maintain that

the hearing they obtained was inadequate because it excluded

exculpatory evidence and admitted unreliable evidence.

30a

No doubt there is considerable potential for abuse in a

Statute that grants an agency official as much power and dis-

cretion as does section 71-0301. The burden placed on plain-

tiffs by having their operations shut down has been severe.

But the extent to which these burdens are the result of defec-

tive application of state laws and procedures is a question that

can be and ought to be pursued in the state courts. No federal

constitutional violation has been shown.

III. CONCLUSION

The case is dismissed. No costs or disbursements are

assessed. Plaintiffs’ claims were made in good faith. All par-

ties and the court were operating in the murk of complex

Statutory and regulatory provisions. Plaintiffs have been pre-

vented from operating their valuable oil transportation busi-

ness for almost two years. They should not be further

penalized by court-imposed costs.

So ordered.

Brooklyn, New York

May 19, 1992

/s/ JACK B. WEINSTEIN

Jack B. Weinstein

United States District Judge

3la

APPENDIX C

42 U.S.C. § 1983

§ 1983. Civil action for deprivation of rights

Every person who, under color of any Statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the juris-

diction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress. For the purposes of this

section, any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a statute of the

District of Columbia.

(R.S. § 1979; Dec. 29, 1979, P. L. 96-170, § 1, 93 Stat.

1284.)

32a

APPENDIX D

N.Y. Environmental Conservation Law § 71-0301

§ 71-0301. Summary abatement

Notwithstanding any inconsistent provisions of law, when-

ever the commissioner finds, after investigation, that any per-

son is causing, engaging in or maintaining a condition or

activity which, in his judgment, presents an imminent danger

to the health or welfare of the people of the state or results in

or is likely to result in irreversible or irreparable damage to

natural resources, and relates to the prevention and abatement

powers of the commissioner and it therefore appears to be

prejudicial to the interests of the people of the state to delay

action until an opportunity for a hearing can be provided, the

commissioner may, without prior hearing, order such person

by notice, in writing wherever practicable or in such other

form as in the commissioner’s judgment will reasonably notify

such person whose practices are intended to be proscribed, to

discontinue, abate or alleviate such condition or activiiy, and

thereupon such person shall immediately discontinue, abate or

alleviate such condition or aciivity. As promptly as possible

thereafter, not to exceed fifteen days, the commissioner shall

provide the person an opportunity to be heard and to present

proof that such condition or activity does not violate the pro-

vision of this section. The commissioner shall adopt any other

‘appropriate rules and regulations prescribing the procedure to

be followed in the issuance of such orders. Any person who

violates any of the provisions of, or who fails to perform any

duty imposed by this section, or any rule, regulation or order

promulgated by the commissioner hereunder, shall be liable to

a civil penalty of not more than twenty-five hundred dollars

for each such violation and an additional penalty of not more

than five hundred dollars for each day during penalty of not

more than five hundred dollars for each day during which such

violation continues, and, in addition thereto, such person may

be enjoined from continuing such violation. Penalties and

33a

injunctive relief provided herein shall be recoverable in an

action brought by the attomey general at the request and in the

name of the commissioner.

(L.1972, C. 664, § 2; amended L.1973, c. 400, § 69.)

34a

APPENDIX E

N.Y. Environmentai Conservation Law § 3-0301

§ 3-0301. General functions, powers and duties of the

department and the commissioner

1. It shall be the responsibility of the department, in accor-

dance with such existing provisions and limitations as may be

elsewhere set forth in law, by and through the commissioner

to carry out the environmental policy of the state set forth in

section 1-0101 of this chapter. In so doing, the commissioner

shall have the power to:

a. Coordinate and develop policies, planning and programs

related to the environment of the state and regions thereof;

b. Promote and coordinate management of water, land, fish,

wildlife and air resources to assure their protection, enhance-

ment, provision, allocation, and balanced utilization consis-

tent with the environmental policy of the state and take into

account the cumulative impact upon all of such resources in

making any determination in connection with any license,

order, permit, certification or other similar action or pro-

mulgating any rule or regulation, standard or criterion;

bb. Prescribe the qualifications for operators of public

sewage treatment plants;

c. Provide for the propagation, protection, and management

of fish and other aquatic life and wildlife and the preservation

of endangered species;

cc. Prescribe and certify the qualifications for operators of

solid waste management facilities as defined in section 27-

0701 of this chapter; provided, however, that the commis-

sioner shall not require the certification of operators until the

commissioner shall have identified or established programs of

training within the state that satisfy such qualifications;

35a

d. Provide for the care, custody, and control of the forest

preserve;

e. Provide for the protection and management of marine

and coastal resources and of wetlands, estuaries and shore-

lines;

f. Foster and promote sound practices for the use of agri-

cultural land, river valleys, open land, and other areas of

unique value;

g. Encourage industrial, commercial, residential and com-

munity development which provides the best usage of land

areas, Maximizes environmental benefits and minimizes the

effects of less desirable environmental conditions;

h. Assure the preservation and enhancement of natural

beauty and man-made scenic qualities;

hh. Cooperate with the division of probation and correc-

tional alternatives by identifying appropriate worksites where

persons performing community service as part of a criminal

disposition may be assigned to provide cleanup and other

maintenance services in order to preserve and enhance the

State’s natural beauty and human-made scenic qualities. Such

sites may include but are not limited to the state’s shorelines,

beaches, parks, roadways, historic sites and other natural or

human-made resources;

i. Provide for prevention and abatement of all water, land

and air pollution including but not limited to that related to

particulates, gases, dust, vapors, noise, radiation, odor, nutri-

ents and heated liquids;

j. Promote control of pests and regulate the use, storage

and disposal of pesticides and other chemicals which may be

harmful to man, animals, plant life, or natural resources;

k. Promote control of weeds and aquatic growth, develop

methods of prevention and eradication, and regulate herbi-

cides;

36a

!. Provide and recommend methods for the recovery, recy-

cling and reuse; or, where recycling and reuse are not possi-

ble, the disposal of solid wastes, including domestic and

industrial refuse, junk cars, litter and debris consistent with

sound health, scenic, environmental quality, and land use

practices;

m. Prevent pollution through the regulation of the storage,

handling and transport of solids, liquids and gases which may

Cause or contribute to pollution;

n. Promote restoration and reclamation of degraded or

despoiled areas and natural resources;

o. Encourage recycling and reuse of products to conserve

resources and reduce waste products;

p. Administer properties having unique natural beauty,

wilderness character, or geological, ecological or historical

significance dedicated by law to the state nature and histori-

cal preserve;

q. Formulate guides for measuring presently unquantified

environmental values and relationships so they may be given

appropriate consideration along with social, economic, and

technical considerations in decision-making;

r. Encourage and undertake scientific investigation and

research on the ecological process, pollution prevention and

abatement, recycling and reuse of resources, and other areas

essential to understanding and achievement of the environ-

mental policy;

s. Assess new and changing technology and development

patterns to identify long-range implications for the environ-

ment and encourage alternatives which minimize adverse

impact;

t. Monitor the environment to afford more effective and

efficient control practices, to identify changes and conditions

in ecological systems and to warn of emergency conditions;

37a

u. Encourage activities consistent with the purposes of this

chapter, by advising and assisting local governments, insti-

tutions, industries, and individuals;

v. Undertake an extensive public information and education

program to inform and involve other public and private orga-

nizations and groups and the general public in the commit-

ment to the principles and practices of environmental

conservation and develop programs for the teaching by others

of such principles and practices;

w. Cooperate with the executive, legislative and planning

authorities of the United States, neighboring states and their

municipalities and the Dominion of Canada in furtherance of

the policy of this state as set forth in section 1-0101;

x. Exercise and perform such other functions, powers and

duties as shall have been or may be from time to time con-

veyed or imposed by law, including, but not limited to, all the

functions, powers and duties assigned and transferred to the

department from the Department of Health, Conservation

Department, Department of Agriculture and Markets, and

Office for Local Government in the Executive Department by

chapter 140 of the laws of 1970;

y. To prevent and control air pollution emergencies, as

defined in subdivision 1 of section 1-0303 hereof. In exer-

cising such prevention and control the department and the

commissioner may limit the consumption of fuels and use of

vehicles, curtail or require the cessation of industrial pro-

cesses and limit or require cessation of incineration and open

burning, and take any other action he may deem necessary to

prevent and/or control air pollution emergencies. The depart-

ment and commissioner shall adopt and implement by rule

and regulation a plan designed to prevent and control such air

pollution emergencies;

z. Within amounts appropriated to the department, to con-

tract, Outside the city of New York, with federally-funded

nonprofit organizations that are organized for the purpose of

38a

beautification of highways, parks and recreation areas and

employ persons sixty years of age or older whose net annual

income does not exceed one thousand dollars to carry out

such activities. The contract shall name the organization, the

amount and manner of payment for the service to be rendered,

nature of such service, the rendering of a verified account of

the disbursements and verified or certified vouchers therefor

attached, a refund of any unused amount, and such other con-

ditions upon the use thereof as may be deemed proper.

zz. [Repealed.]

2. To further assist in carrying out the policy of this state

as provided in section 1-0101 of the chapter the department,

by and through the commissioner, shall be authorized to:

a. With the advice and approval of the board, adopt, amend

or repeal environmental standards, criteria and those rules and

regulations having the force and effect of standards and cri-

teria tO Carry Out the purposes and provisions of this act.

Upon approval by the board of any such environmental stan-

dard, criterion, rule or regulation or change thereto, it shall

become effective thirty days after being filed with the

Secretary of State for publication in the “Official Compilation

of Codes, Rules, and Regulations of the State of New York”

published pursuant to section 102 of the Executive Law. This

provision shall not in any way restrict the commissioner in

the exercise of any function, power or duty transferred to him

and heretofore authorized to be exercised by any other depart-

ment acting through its commissioner to promulgate, adopt,

amend or repeal any standards, rules and regulations. No such

environmental standards, criterion, rule or regulation or

change hereto shali be proposed for approval unless a public

hearing relating to the subject of such standard shall be held

by the commissioner prior thereto not less than 30 days after

date of notice therefor, any provision of law to the contrary

notwithstanding. Notice shall be given by public advertise-

ment of the date, time, place and purpose of such hearing.

Members of the board shall be entitled to participate in such

39a

hearing and opportunity to be heard by the commissioner with

respect to the subject thereof shall be given to the public.

b. Enter into contracts with any person to do all things nec-

essary Or convenient to carry out the functions, powers and

duties of the department.

c. Review and appraise programs and activities of state

departments and agencies in light of the policy set forth in

section 1-0101 of this chapter for the purpose of determining

the extent to which such programs and activities are con-

tributing to the achievement of such policy and to make rec-

ommendations to such departments and agencies with respect

thereto, including but not limited to, environmental guidelines

for their use.

d. Consult with and co-operate with:

(1) Officials of departments and agencies of the state hav-

ing duties and responsibilities concerning the environment;

(2) Officials and representatives of any public benefit cor-

poration in the state;

(3) Officials and representatives of the federal government,

of other states and of interstate agencies on problems affect-

ing the environment of this state;

(4) Persons, organizations and groups, public and private,

utilizing, served by, interested in or concerned with the envi-

ronment in the state;

(5S) The appropriate committee or committees of the

Legislature.

e. Appear and participate in proceedings before any federal

regulatory agency involving or affecting the purposes of this

department.

f. Undertake any studies, inquiries, surveys or analyses it

may deem relevant through the personnel of the department or

in cO-Operation with any public or private agencies, including

educational, civic and research organizations, colleges, uni-

40a

versities, institutes or foundations, for the accomplishment of

the purposes of the department.

g. Enter and inspect any property or premises for the pur-

pose of investigating either actual or suspected sources of

pollution or contamination or for the purpose of ascertaining

compliance or noncompliance with any law, rule or regulation

which may be promulgated pursuant to this chapter. Any

information relating to secret processes or methods of man-

ufacture shall be kept confidential.

h. Conduct investigations and hold hearings and compel

the attendance of witnesses and the production of accounts,

books, documents, and nondocumentary evidence by the

issuance of a subpoena.

i. Advise and cooperate with municipal, county, regional

and other local agencies and officials within the state, to carry

out the purposes of chapter 140 of the laws of 1970.

j. Act as the official agency of the state in all matters

affecting the purposes of the department under any federal

laws now or hereafter to be enacted, and as the official agency

of a county, town, city, village or authority in connection with

the grant or advance of any federal or other funds or credits

to the state or through the state to its local governing bodies

for the purposes of chapter 140 of the laws of 1970.

k. Report from time to time to the Governor and make an

annual report to the Governor and the Legislature.

!. Formulate and execute contracts, keep accounts. record

personal data, acquire real or personal property, including

acquisition by condemnation, appropriation, gift, grant, devise

or bequest, adjust claims, compile statistics and engage in

research opportunities; all according to the statutes or depart-

ment orders and regulations in such cases made and provided.

m. Adopt such rules, regulations and procedures as may he

necessary, convenient or desirable to effectuate the purposes

of this chapter.

4la

n. Study, monitor, control and regulate pollution from

motor vehicle exhaust emissions.

o. When requested to do so by another state with which

New York has reciprocally agreed to provide personnel and

equipment, provide such personnel and equipment for use in

suppression of forest fires upon lands within such other state.

p. Notwithstanding any other provision of this chapter, del-

egate to municipal health or environmental departments or

agencies or other appropriate governmental entities including

the state soil and water conservation committee and the soil

and water conservation districts, any of which shall meet such

qualifications relating to adequate authority, expertise, staff.

funding and other matters as may be prescribed, such func-

tions of review, approval of plans, issuance of permits,

licenses, certificates or approvals required or authorized by

this chapter as the commissioner may deem appropriate in

order to expedite the review of matters within the jurisdiction

of the department, to provide for better coordination among

different levels of government or to enhance environmental

protection, subject to such conditions as he may establish.

The powers delegated pursuant to this part may be withdrawn

by the commissioner, at any time, upon thirty days written

notice to the department, agency or other governmental entity

including the state soil and water conservation committee and

the soil and water conservation districts holding such powers

by virtue of this paragraph.

q. Require that a written instrument subinitted pursuant to

this chapter or a rule or regulation adopted pursuant hereto

contain a form notice to the effect that false statements made

therein are punishable pursuant to section 210.45 of the penal

law.

r. Notwithstanding the provisions of article six of the pub-

lic officers law, deny access to inspection of records which

identify locations of habitats of species designated endan-

gered pursuant to section 11-0535 of this chapter, protected

pursuant to section 9-1503 of this chapter or any other species

42a

or unique combination of species of flora or fauna where the

destruction of such habitat or the removal of such species

therefrom would impair their ability to survive provided,

however, that the commissioner may, in his discretion permit

access to such inspection to persons engaged in legitimate sci-

entific and academic research.

s. Coordinate and conduct Arbor day ceremonies on the

last Friday of April in cooperation with the department of

education and the department of agriculture and markets.

t. Establish a program, in consuitation with the conserva-

tion fund advisory council for the sale of limited edition

prints of fish and wildlife paintings with the proceeds to be

credited to the conservation fund established pursuant to sec-

tion eighty-three of the state finance law.

u. Notwithstanding any other provisions of this chapter,

establish a program to offer for sale to the public of items

symbolic of contributions made to support department activ-

ities performed as steward of lands under its jurisdiction. The

terms upon which such items will be available and the rele-

vant donations for such items shall be set forth in regulations

to be promulgated by the commissioner provided, however,

that no such item shall be offered unless the amount of such

donation exceeds the value of the item. All receipts of the

department from such contributions shall be deposited in and

Separately accounted for in an account in the miscellaneous

State special revenue fund, expenditures from which shall be

limited to the activities of the department pursuant to this

paragraph and activities performed as steward of lands under

its jurisdiction.

v. Except for the forest preserve which is under the care,

custody and control of the department pursuant to paragraph

d of subdivision one of this section and subdivision-one of

section 9-0105 of this chapter, administer and manage the real

property under the jurisdiction of the department for the pur-

pose of preserving, protecting and enhancing the natural

43a

resource value for which the property was acquired or to

which it is dedicated, employing all appropriate management

activities.

w. Shall prepare and submit to the federally appointed

“Aquatic Nuisance Species Task Force” two comprehensive

management plans, after notice and opportunity for public

comment, for funding of New York state activities under the

Federal Non-indigenous Aquatic Nuisance Prevention and

Control Act of 1990, Public Law 101-646, by January 1,

1992. One such plan shall identify those areas or activities

within the state, other than those related to public facilities,

where technical and financial assistance is needed within the

state to eliminate or reduce environmental, public health and

safety risks and to mitigate the financial impact upon the state

associated with non-indigenous aquatic species, particularly

zebra mussels. The other plan shall be a “public facility man-

agement plan” which is limited solely to identifying those

public facilities within the state for which technical and finan-

cial assistance is needed to reduce infestations of zebra mus-

sels. Each plan shall identify the management practices and

measures that will be undertaken to reduce infestations of

aquatic nuisance species, especially zebra mussels, and

include the following: (1) a description of the state and local

programs for environmentally sound prevention and control

of the target species; (2) a description of federal activities that

may be needed for environmentally sound prevention and

control of aquatic nuisance species and a description of the

manner in which those activities should be coordinated with

state and local government activities; and (3) a schedule for

implementing the plan, including a schedule of annual objec-

tives. In developing and implementing these management

plans, the department shall, to the maximum extent practi-

cable, involve local governments, regional entities and pub-

lic and private organizations that have expertise in the control

of aquatic nuisance species. Copies of these plans shall also

be submitted to the temporary president of the senate and the

speaker of the assembly, and the department shall annually, on

44a

or before January first, submit to the temporary president of

the senate and speaker of the assembly a report on the activ-

ities of the department under these plans.

3. The department shall not alter the boundaries of any of

the nine administrative regions from the boundaries existing

on January first, nineteen hundred seventy-seven without first

holding public hearings in each region affected.

4. The commissioner shall cooperate with the commis-

sioner of the state department of health, district attorneys and

the department of law in providing assistance in the investi-

gation and prosecution of violations of article twenty-seven

of this chapter.

(L.1972, c. 664, § 2; amended L.1973, c. 400, §§ 1 to 3;

.1974, c. 327, § 1; 1.1974, c. 469, § 1; L.1974, c. 987, § 1;

.1975, c. 96, § 1; L.1975, c. 188, § 1; L.1975, c. 274, § 1;

.1975, c. 532, § 1; L.1976, c. 400, § 1; L.1976, c. 600, § 1;

1977, ¢. 158, 4 1: L.1977, &. 644... 6 3: L.4977. €. 722. 3 4:

.1978, c. 184, § 1; L.1979, c. 137, § 1; L.1979, c. 345, § 1;

.1980, c. 126, § 1; L.1981, c. 88, § 1; L.1981, c. 156, § 1;

198i, c. 719, 3 4; L. 1962, c. 4, § 1; L. 1983, ¢. 42, § 1;

.1983, c. 965, § 2; L.1984, c. 42, § 2.)

eee Se Se