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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.


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KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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Section 1983 claims related to endangered mussels in Neversink River sent off to Neverland by federal judge

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Elliot v. City of New York, No. 06-CV-296 (KMK), 2008 WL 4178187 (Sept. 8, 2008, S.D.N.Y.)

Plaintiffs bring this action against the City of New York including the City of New York Department of Environmental Protection… Plaintiffs allegations… revolve around the City's alleged failure to properly operate and maintain the Neversink Reservoir and Neversink Dam during March and April 2005… The fourth claim of Plaintiffs' Second Amended Complaint alleges that the City violated 42 U.S.C. § 1983 ("Section 1983") by depriving Plaintiffs of their substantive liberty and property interests without due process of law, and by failing to comply with provisions of the Endangered Species Act ("ESA") and Clean Water Act ("CWA"). For the reasons stated herein, Defendant's Motion to Dismiss the fourth claim of Plaintiffs' Second Amended Complaint is granted…

Protection of the dwarf wedgemussel, an endangered species with its most substantial population discovered in the Neversink River in 1990, has triggered recovery planning efforts and even dam demolition projects, but Congress probably never anticipated lawsuits based on §1983 and "Civil actions for deprivation of rights."    Image from New York State Department of Environmental Conservation.

KEITHINKING: Citing relevant Supreme Court caselaw finding that the Clean Water Act could not serve as the basis for a Section 1983 claim, because the CWA had a separate citizen enforcement regime, U.S. District Judge Kenneth M. Karas in the Southern District of New York held that the same reasoning applied to a Section 1983 claim relying upon the Endangered Species Act .

Factual Background

Plaintiffs own and/or reside on property located in Sullivan County and/or Orange County, New York--areas downstream from the Neversink Reservoir and Neversink Dam. (SAC  2, 6.)…  The City owns, operates, and maintains the Neversink Reservoir and Dam… In March and April 2005, Defendant allegedly implemented a Neversink Reservoir and Dam policy entitled "fill and spill," …  According to Plaintiffs, this new policy violated New York law because it permitted the City to " 'fill[ ]' the Neversink Reservoir until it 'spills' over into the Neversink River," thus allowing "the Neversink Reservoir to continuously fill without any offsetting water releases, even as the Reservoir [i]s already spilling, and without regard to predicted and anticipated spring rainfalls and known and predicted spring snow melt."… Plaintiffs allege that in implementing this policy, the City "did not consider, address, or account for" the policy's impact upon, among other things: river flooding; river silting and sedimentation; river turbidity; critical habitats of the dwarf mussel and other endangered species; the flora and fauna along the riverbed; the maintenance and repair of the Neversink Reservoir and Dam; the City's water demand; and the safety of downriver residents and communities.

Substantive Due Process Violation for Deprivation of Liberty

Section 1983 is available to enforce violations of federal law by agents of the state. See Maine v. Thiboutot, 448 U.S. 1, 4 (1980). There are, however, two exceptions to this general rule: Section 1983 is not available to enforce violations of federal law "where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immunities within the meaning of § 1983." Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423 (1987) (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) and Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1 (1981)).

Here, Plaintiffs allege Section 1983 claims based on the City's violation of provisions of the CWA and the ESA. However, in Middlesex County Sewerage Authority v. Nat'l Sea Clammers Association, 453 U.S. 1 (1981), the Supreme Court explicitly addressed whether a plaintiff may proceed with a Section 1983 claim predicated on violations of the CWA. The Court observed that the CWA contains a comprehensive enforcement mechanism consisting of extensive administrative and judicial remedies, as well as citizen-suit provisions, which "authorize private persons to sue for injunctions to enforce the statutes." Id. at 14. The Court thus concluded "that the existence of ... express remedies [in the CWA] demonstrates not only that Congress intended to foreclose implied private actions but also that it intended to supplant any remedy that otherwise would be available under § 1983" Id. at 21. Accordingly, Plaintiffs may not proceed with their Section 1983 claim based on violation of the CWA.

Although neither the Supreme Court nor the Second Circuit has expressly addressed whether the remedial framework of the ESA forecloses remedies under Section 1983, the Court holds that Plaintiffs' Section 1983 claim based on violations of the ESA is similarly barred…  

…The CWA and the ESA contain similar comprehensive administrative remedies and express private rights of action in the form of citizen suit provisions. Compare 33 U.S.C. §§ 1319 (2006) with 16 U.S.C. § 1540 (2006). Therefore, as is the case with the CWA, the remedial devices provided for by the ESA are sufficiently comprehensive "to demonstrate congressional intent to preclude the remedy of suits under § 1983." Nat'l Sea Clammers Ass'n, 453 U .S. at 20; see Shields v. Babbitt, 229 F.Supp.2d 638, 666 (W.D.Tex.2000) (concluding that plaintiff was "foreclosed from bringing a suit under 42 U.S.C. § 1983 because of the comprehensive enforcement scheme of the ESA"), vacated on other grounds, Shields v. Norton, 289 F.3d 832 (5th Cir.2002); see also Shay S. Scott, Combining Environmental Citizen Suits and Other Private Theories of Recovery, 8 J. Envt'l L. & Litig. 369, 374-75 (1994) (noting that most major federal environmental protection laws, including the CWA and the ESA, contain almost verbatim citizen suit provisions modeled after the Clean Air Act citizen suit provisions). Accordingly, Plaintiffs' Section 1983 claim based on violation of the CWA or ESA fails to state a claim.