Federal judge won't dismiss Unkechaug fishing case vs. DEC

A federal district court judge has denied New York State’s request to throw out a case by the Unkechaug Indian Nation that challenges the state’s authority to regulate or restrict the Mastic Beach tribe’s historic fishing rights. The ruling may have implications for a similar case filed by three Shinnecock Indian Nation members.

The case follows charges that the state Department of Environmental Conservation has unlawfully confiscated fish and fishing equipment from Unkechaug and Shinnecock tribal members, in some cases issuing criminal summonses to native fishermen whose right to fish, the tribe  says, is guaranteed by historic treaties, religious freedom and federal law. 

Federal District Court Judge William Kuntz II, in a decision last month from the Brooklyn court, denied a motion to dismiss by the state DEC and its commissioner Basil Seggos that asserted the agency was immune from legal claims, among other factors. The decision means discovery and depositions in the case can move forward.

In his ruling, Kuntz raised the prospect that the DEC may have waived any right of immunity from the lawsuit by accepting "as true" a claim in the suit that an assistant state attorney general “threatened to criminally prosecute” Unkechaug Chief Harry Wallace unless he “would file an action in Federal Court asserting its rights.”

“Accepting this statement as true at the motion-to-dismiss stage, [the DEC] may have ‘voluntarily’ appeared in federal court, thereby consenting to federal jurisdiction,” Kuntz wrote.

The DEC in a statement said the agency "does not comment on ongoing litigation." A spokesman for the attorney general didn't provide a response.

Wallace, in an interview, charged the DEC a history of “harassment and intimidation," despite a formal agency policy to cooperate with native tribes.

“I hope we are able to discover the full panoply of the DEC’s actions against us and [violations of] their own policy” of cooperation, Wallace said, arguing the state has "done the exact opposite" of the policy. 

The Unkechaug Nation and Wallace filed the suit in February 2018, seeking to “categorically remove regulatory actions that restrict and criminally prosecute Unkechaug Indians from fishing” around and beyond the Poospatuck reservation in Mastic. The suit cites the tribe’s native sovereignty, religious freedom, treaties and federal laws.

Three Shinnecock Indian Nation members filed suit four months later, seeking relief from what they charged was a “pattern of criminal prosecutions” of tribal members for exercising native fishing rights. That case, which alleges racial discrimination, seeks $102 million in punitive damages.

Scott Moore, an attorney for the Shinnecock fishermen, last month forwarded Kuntz’s decision to the judge in his case, calling it “decided legal authority.” Lawyers for the state, however, noted “crucial factual differences” between the two cases in arguing that Kuntz’s decision didn’t directly apply.

Kuntz, in his ruling on the Unkechaug case, found Seggos was a "proper party to the action" because Wallace and the tribe have “plausibly alleged there are threats of violations of federal law given a past practice of threats [by the DEC] and recent statements suggesting this practice will continue in the future." He also found the tribe and Wallace have "established standing" to bring "pre-enforcement" challenges against the DEC and Seggos. He called the tribe's religious expression claim "ripe for review." 

Wallace said Kuntz’s ruling means “at least we’ll have an opportunity to be heard.”

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.