United States Court of Appeals For the Second Circuit

August Term 2024

Argued: September 18, 2024 Decided: January 28, 2025

No. 23-1013-cv

UNKECHAUG INDIAN NATION, HARRY B. WALLACE, Plaintiffs-Appellants, v. BASIL SEGGOS, in his official capacity as the Commissioner of the New York State Department of Environmental Conservation, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Defendants-Appellees, *

Appeal from the United States District Court for the Eastern District of New York No. 2:18CV01132, William F. Kuntz, II, Judge.

Before: LYNCH, ROBINSON, and MERRIAM, Circuit Judges.

The Unkechaug Indian Nation (“Nation”) and its Chief Harry B. Wallace challenge the enforcement by the New York State Department of Environmental Conservation (“DEC”) of regulations prohibiting the harvesting of American

* The Clerk’s office is directed to amend the caption as reflected above. glass eels. Central to plaintiffs’ challenge is the Andros Order, a 1676 agreement between the Royal Governor of New York and the Nation that allowed members of the Nation to “freely whale or fish for or with” the colonists. App’x at 3007. The Nation and Wallace contend that the Andros Order is a valid and enforceable federal treaty preempting the DEC’s fishing regulations as applied to the Nation’s members in the Nation’s customary off-reservation fishing waters.

Plaintiffs filed this action in the United States District Court for the Eastern District of New York (Kuntz, J.) against the DEC and its Commissioner Basil Seggos in his official capacity. Plaintiffs sought declaratory and injunctive relief to prevent the DEC from enforcing New York fishing regulations, including those barring the harvesting of glass eels, against members of the Nation in “its Reservation waters and customary Unkechaug fishing waters.” App’x at 26. The District Court granted summary judgment to defendants holding, in relevant part, that the Andros Order is not federal law preempting New York’s fishing regulations.

We hold that the Eleventh Amendment bars plaintiffs’ claims against the DEC, but that the Ex parte Young exception to sovereign immunity applies to the claims for declaratory and injunctive relief asserted against Commissioner Seggos in his official capacity. We also hold that the District Court did not abuse its discretion in failing to dispose of the parties’ Daubert motions or privilege disputes before ruling on the motions for summary judgment. Finally, we hold that the Andros Order is not federal law binding on the United States because it was entered before the Confederal period, on behalf of the British Crown, and has not been ratified by the United States. Because the Andros Order is not federal law, it does not preempt New York’s fishing regulations, including those prohibiting the harvesting of American glass eels in off-reservation New York waters.

The judgment of the District Court is therefore AFFIRMED.

JAMES F. SIMERMEYER, Law Offices of James F. Simermeyer, P.C., Melville, NY, for Plaintiffs- Appellants.

2 ELIZABETH A. BRODY (Barbara D. Underwood, Judith N. Vale, on the brief), for Letitia James, Attorney General for the State of New York