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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1073

## Text

‘ 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 age

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0818%3A1. Public record. Not legal advice.