ELR Citation: 55 ELR 20014
No(s). 23-1013-cv (2d Cir. Jan 28, 2025)

The Second Circuit affirmed summary judgment for the New York State Department of Environmental Conservation (DEC) in a challenge to enforcement of regulations prohibiting the harvesting of American glass eels. An Indian tribe sued DEC and its commissioner, arguing a 1676 agreement between the Royal Governor of New York and the tribe that allowed tribal members to “freely whale or fish for or with” the colonists was a valid and enforceable treaty preempting DEC's regulations as applied to members in the tribe's customary off-reservation fishing waters. A district court granted summary judgment for DEC, holding the agreement was not federal law preempting New York's fishing regulations. The appellate court held the Eleventh Amendment barred the claims against DEC, but that the Ex parte Young exception to sovereign immunity applied to claims asserted against the commissioner. It further held the 1676 agreement was not federal law binding on the United States because it was entered before the Confederal period, on behalf of the British Crown, and had not been ratified by the United States. It thus did not preempt New York’s fishing regulations, including those prohibiting harvesting of American glass eels in off-reservation New York waters. The court affirmed summary judgment for DEC and its commissioner.