Silva v. Farrish

21-616-cv
Silva v. Farrish

In the
United States Court of Appeals
FOR THE SECOND CIRCUIT

AUGUST TERM 2021
No. 21-0616

DAVID T. SILVA, GERROD T. SMITH, JONATHAN K. SMITH,
MEMBERS OF THE SHINNECOCK INDIAN NATION,
Plaintiffs-Appellants,

v.

BRIAN FARRISH, JAMIE GREENWOOD, EVAN LACZI, NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION, SUFFOLK
COUNTY DISTRICT ATTORNEY’S OFFICE, BASSIL SEGGOS,
Defendants-Appellees.

On Appeal from the United States District Court
for the Eastern District of New York

ARGUED: MARCH 15, 2022
DECIDED: AUGUST 25, 2022

Before: JACOBS, WESLEY, and MENASHI, Circuit Judges.

Plaintiffs-Appellants Gerrod Smith, Jonathan Smith, and David
Silva are members of the Shinnecock Indian Nation and assert an
ancestral right to fish in the Shinnecock Bay without interference.
Over the past decade, however, state officials have ticketed and
prosecuted them for violating state fishing laws. The plaintiffs sought
declaratory and injunctive relief to prevent the further enforcement of
those fishing regulations as well as damages based on allegations of
discrimination in past enforcement. The district court granted
summary judgment to the defendants. We hold that Ex parte Young
applies to the plaintiffs’ fishing-rights claims against the New York
State Department of Environmental Conservation (“DEC”) officials—
but not against the DEC itself—because the plaintiffs allege an
ongoing violation of federal law and seek prospective relief against
state officials. We also hold that the plaintiffs have Article III standing
to seek prospective relief and that Younger abstention no longer bars
Silva from seeking prospective relief because his criminal
proceedings have ended. We therefore conclude that the district court
erred in granting summary judgment to the DEC officials on the
plaintiffs’ claims for declaratory and injunctive relief. The district
court properly granted summary judgment on the discrimination
claims because there is no evidence in the record that would permit
an inference of discriminatory intent. We affirm in part and vacate in
part the judgment of the district court and remand for further
proceedings.

SCOTT M. MOORE, Moore International Law PLLC, for
Plaintiffs-Appellants.

ARI SAVITZKY, Assistant Solicitor General (Letitia James,
Attorney General, Barbara D. Underwood, Solicitor
General, Steven C. Wu, Deputy Solicitor General, on the
brief), for Defendants-Appellees New York State Department

2
 of Environmental Conservation, Brian Farrish, Evan Laczi,
and Basil Seggos.

BRIAN C. MITCHELL, Assistant County Attorney (Dennis
M. Cohen, Suffolk County Attorney, on the brief), for
Defendants-Appellees Suffolk County District Attorney’s
Office and Jamie Greenwood.

MENASHI, Circuit Judge:

Plaintiffs-Appellants Gerrod Smith, Jonathan Smith, and David
Silva are members of the Shinnecock Indian Nation and reside on the
Shinnecock Reservation. They believe that when the Shinnecock
ceded land to colonial settlers, the tribe retained the aboriginal right
to fish in the Shinnecock Bay without interference and that the
Supremacy Clause protects this right from state laws that would
abridge it. 1 Over the past decade, however, state officials have
ticketed and prosecuted the plaintiffs for violating state laws that
regulate fishing in the Shinnecock Bay. Seeking to clarify their fishing
rights, the plaintiffs filed this action in the U.S. District Court for the
Eastern District of New York against the New York State Department
of Environmental Conservation (“DEC”), 2 several DEC officials in

1 See App’x 38 (“The colonial documents … in which the Shinnecock ceded
land and negotiated retained fishing rights are legally enforceable today
under state and federal law.”); App’x 41 (“The aboriginal right to fish in un-
relinquished aboriginal territory and the related retained right to fish in
ceded territory is a protected federal right under the Supremacy Clause.”).
2State law empowers the DEC to manage the “fish and wildlife resources”
of the state, including the habitats of fish and wildlife. N.Y. Environmental
Conservation Law § 11-0303(1).

3
their official and personal capacities, 3 the Suffolk County District
Attorney’s Office, and Assistant District Attorney Brian Greenwood. 4

The complaint alleged that the enforcement of state fishing
regulations against the plaintiffs in the Shinnecock Bay violates their
fishing rights. It also alleged that the defendants’ prior enforcement
of state fishing regulations amounted to intentional discrimination in
violation of 42 U.S.C. §§ 1981 and 1982. The plaintiffs sought
declaratory and injunctive relief to prevent the further enforcement of
state fishing regulations against them. The plaintiffs sought monetary
damages from the individual defendants based on the allegations of
discrimination.

The district court granted summary judgment to the DEC
defendants. The district court concluded that state sovereign
immunity barred all the claims against the DEC—as well as those
against the DEC officials in their official capacities—and that the Ex
parte Young exception to state sovereign immunity did not apply. The
district court additionally held that the plaintiffs lacked standing to
bring their claims for declaratory and injunctive relief and that
Younger abstention precluded consideration of Silva’s claims for
prospective relief. The district court further held that the plaintiffs’

3The DEC officials include DEC Conservation Officers Brian Farrish and
Evan Laczi and DEC Commissioner Basil Seggos.
4 On appeal, the plaintiffs do not raise any arguments regarding the district
court’s grant of summary judgment to the Suffolk County District
Attorney’s Office and Assistant District Attorney Brian Greenwood. Those
arguments are therefore waived, see Graves v. Finch Pruyn & Co., 457 F.3d
181, 184 (2d Cir. 2006), and we affirm the judgment of the district court
insofar as it granted summary judgment to those defendants.

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discrimination claims were either time-barred or failed to allege a
prima facie case of discrimination.

We hold that Ex parte Young applies to the plaintiffs’
fishing-rights claims against the DEC officials—but not against the
DEC itself—because the plaintiffs allege an ongoing violation of
federal law and seek prospective relief against state officials. We also
hold that the plaintiffs have Article III standing to seek prospective
relief and that Younger abstention no longer bars Silva from seeking
prospective relief because his criminal proceedings have ended. We
therefore conclude that the district court erred in granting summary
judgment to the DEC officials on the plaintiffs’ claims for declaratory
and injunctive relief. As for the plaintiffs’ discrimination claims, we
conclude that the district court properly granted summary judgment
to the defendants because there is no evidence in the record that
would permit an inference of discriminatory intent. Accordingly, we
affirm in part and vacate in part the judgment of the district court.
The case is remanded for further proceedings consistent with this
opinion.

BACKGROUND

I

The plaintiffs are members of the Shinnecock Indian Nation, a
federally recognized Indian tribe, and reside on the Shinnecock
Reservation. The plaintiffs believe that, based on certain colonial-era
deeds, they have the right to fish in the Shinnecock Bay without
interference and that the Supremacy Clause protects that right from
state abridgment. Over the past decade, however, the state has
ticketed and prosecuted the plaintiffs for violating state laws that
regulate fishing in the Shinnecock Bay.

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 Gerrod Smith was prosecuted in October 2008 for possessing
eighteen out-of-season and undersized summer flounder, sixteen out-
of-season and undersized porgy, and two undersized blackfish
harvested from the Shinnecock Bay in violation of state law. Around
the same time, Jonathan Smith received a civil infraction ticket and a
criminal summons for operating an “unpermitted aquaculture
facility” in the Shinnecock Bay in violation of New York
Environmental Conservation Law § 13-0316(2) and for using
“improper shellfish tags” in violation of § 13-0319. The cases against
Gerrod Smith and Jonathan Smith were ultimately dismissed. In 2017,
Silva was charged with fishing without a license as well as unlawful
possession of underage eels and possession of eels over the limit. See
N.Y. Environmental Conservation Law § 13-0355(3); (fishing without
a license); 6 N.Y.C.R.R. § 40.1(b)(1)(ii) (undersized eels); id.
§ 40.1(b)(1)(iii) (eels over the limit).

While Silva’s criminal prosecution was pending in state court,
the plaintiffs filed this action in the U.S. District Court for the Eastern
District of New York. The complaint alleged that certain colonial-era
deeds establish the plaintiffs’ “right to fish in the waters of Shinnecock
Bay and its estuary,” App’x 16, and that the application of state
fishing regulations to the plaintiffs violates those fishing rights. The
complaint also alleged that the defendants’ prior enforcement of state
fishing regulations amounted to a “continuing pattern and practice of
purposeful acts of discrimination based on their race as Native
Americans” in violation of 42 U.S.C. §§ 1981 and 1982. App’x 21.

The plaintiffs sought a declaration of their fishing rights and an
injunction preventing the defendants from continuing the criminal
prosecution against Silva and from otherwise interfering with the
plaintiffs’ “use of the waters, fishing, taking fish, and holding fish and
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shellfish in Shinnecock Bay and its estuary and other usual and
customary Shinnecock fishing waters.” App’x 22. The plaintiffs
sought monetary damages based on the allegations of discrimination.

The plaintiffs moved for a preliminary injunction, and the
district court denied their motion. Silva v. Farrish, No. 18-CV-3648S,
2018 WL 8967113, at *4 (E.D.N.Y. July 31, 2018). The district court
concluded that Silva failed to show a likelihood of success on the
merits and that even if he had, abstention was required under
Younger. Id. The district court further held that the Smiths lacked
standing because their injuries were “entirely speculative and
remote.” Id. at *5.

II

The defendants moved to dismiss the complaint for lack of
subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) and for failure to state a claim under Rule 12(b)(6). The district
court referred the motions to a magistrate judge, who recommended
dismissing the plaintiffs’ complaint in its entirety. Silva v. Farrish,
No. 18-CV-3648S, 2019 WL 117602 (E.D.N.Y. Jan. 7, 2019). The
magistrate judge held that state sovereign immunity barred the
claims against the DEC and its officials in their official capacities. Id.
at *9-12. In so holding, the magistrate judge rejected the plaintiffs’
argument that Ex parte Young authorized their claims for prospective
relief. Id. at *9-12. The magistrate judge concluded—as alternative
bases for dismissal—that the plaintiffs lacked standing to seek
prospective relief, id. at *15 & n.19, and that Younger abstention
precluded consideration of Silva’s claims for prospective relief, id. at
*14. The magistrate judge further held that the plaintiffs’

7
discrimination claims against the DEC officials in their individual
capacities failed to state a claim. Id. at *16. 5

The district court neither adopted nor rejected the magistrate
judge’s recommendation but terminated the dismissal motions and
set a briefing schedule for summary judgment motions. The district
court then referred the summary judgment motions to the magistrate
judge for another report and recommendation. The magistrate judge
recommended granting summary judgment to the defendants on the
claims for declaratory and injunctive relief for the same reasons that
were provided in the first report and recommendation. Silva v. Farrish,
No. 18-CV-3648, 2020 WL 3451344 (E.D.N.Y. May 27, 2020), report and
recommendation adopted, No. 18-CV-3648, 2021 WL 613092 (E.D.N.Y.
Feb. 17, 2021). As for the plaintiffs’ claims of racial discrimination, the
magistrate judge concluded that the Smiths’ claims were time-barred,
id. at *11, and that Silva did not make out a prima facie case of
discrimination, id. at *12.

The district court adopted the report and recommendation “in
its entirety” and granted summary judgment to the defendants. Silva
v. Farrish, No. 18-CV-3648, 2021 WL 613092 (E.D.N.Y. Feb. 17, 2021).
In their objection to the report and recommendation, the plaintiffs
disclosed that Silva had “abandoned” his state-court criminal appeal
and argued that Younger abstention no longer barred Silva’s claims.
The district court rejected this argument, concluding that Silva’s

5 The magistrate judge recommended dismissing the plaintiffs’ claims
against the Suffolk County District Attorney’s Office and Assistant District
Attorney Brian Greenwood on the grounds that the District Attorney’s
Office is not an entity susceptible to suit and that Greenwood was entitled
to absolute prosecutorial immunity. Silva, 2020 WL 3451344, at *19.

8
abandonment of his state-court appeal did “not equate to exhausting
… state appellate remedies” so Younger still applied. Id. at *2 (internal
quotation marks omitted).

The plaintiffs timely appealed.

DISCUSSION

I

We begin with the district court’s grant of summary judgment
on the plaintiffs’ claims for declaratory and injunctive relief. We hold
that the Ex parte Young exception to state sovereign immunity applies
to these claims against the DEC officials, that the plaintiffs have
Article III standing to pursue prospective relief, and that Younger
abstention does not bar Silva’s claims for prospective relief.
Accordingly, the district court erred in granting summary judgment
to the DEC officials.

A

States are generally “immune from suit” under “the doctrine of
sovereign immunity.” Whole Woman’s Health v. Jackson, 142 S. Ct. 522,
532 (2021). That doctrine recognizes that the states “entered the Union
with their sovereign immunity intact, unlimited by Article III’s
jurisdictional grant.” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247,
253 (2011). Here, the plaintiffs do not contest that the DEC and its
officials are part of the state and enjoy sovereign immunity from suit.
Instead, the plaintiffs invoke Ex parte Young, 209 U.S. 123 (1908),
which provides a “a narrow exception grounded in traditional equity
practice—one that allows certain private parties to seek judicial
orders in federal court preventing state executive officials from
enforcing state laws that are contrary to federal law.” Whole Woman’s

9
Health, 142 S. Ct. at 532. Ex parte Young, however, has no application
to the DEC itself. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 146 (1993) (explaining that Ex parte Young “has no
application in suits against the States and their agencies, which are
barred regardless of the relief sought”). We therefore consider the
plaintiffs’ argument as it relates to the DEC officials.

To determine whether Ex parte Young applies to a complaint,
we conduct a “straightforward inquiry” into whether the complaint
(1) “alleges an ongoing violation of federal law” and (2) “seeks relief
properly characterized as prospective.” Verizon Md. v. Pub. Serv.
Comm’n of Md., 535 U.S. 635, 645 (2002); see also Dairy Mart Convenience
Stores, Inc. v. Nickel, 411 F.3d 367, 372 (2d Cir. 2005). There is no doubt
that the plaintiffs’ suit satisfies both prongs. The plaintiffs allege that
the enforcement of state fishing regulations violates their federally
protected fishing rights. Their requested relief—that the DEC officials
be enjoined from enforcing the state fishing regulations against
them—would prospectively end the alleged violation. Based on this
analysis, Ex parte Young applies.

The DEC defendants argue that the Supreme Court’s decision
in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), and our
decision in Western Mohegan Tribe & Nation v. Orange County, 395 F.3d
18 (2d Cir. 2004), foreclose the application of Ex parte Young in this
case. We disagree. In Coeur d’Alene, the Supreme Court said that if the
effect of the requested relief is “the functional equivalent of quiet
title” to land, then the suit has effectively been brought against the
state and is barred by state sovereign immunity. 521 U.S. at 282. The
suit cannot proceed if it asserts an “entitlement to the exclusive use
and occupancy and the right to quiet enjoyment of … lands.” Id. at
265. In other words, the suit is effectively one against the state when
10
“substantially all benefits of ownership and control would shift from
the State to the Tribe.” Id. at 282.

In Coeur d’Alene, the tribe requested a declaratory judgment not
only to declare invalid any laws “purport[ing] to regulate, authorize,
use, or affect in any way the submerged lands” but also to prohibit
the state from taking “action in violation of the Tribe’s rights of
exclusive use and occupancy, quiet enjoyment, and other ownership
interest in the submerged lands.” Id. at 265. 6 In Western Mohegan, the
tribe sought a declaration that it held “Indian title,” which it described
as the right “to camp, to hunt, to fish, and to use the waters and
timbers” as well as the right “to exclude all others, including holders of
fee simple title, through state law possessory actions such as
ejectment and trespass.” 395 F.3d at 22 (alteration omitted).

The plaintiffs here seek a declaration that the law grants them
a right to fish in the Shinnecock Bay without interference and that the
DEC officials are unlawfully denying them that right. Unlike the
tribes in Coeur d’Alene and Western Mohegan, the plaintiffs’ request for
relief in this case would not transfer ownership and control of the
Shinnecock Bay from the state to an Indian tribe. Nor would it allow
the plaintiffs to prevent others from fishing in the Shinnecock Bay. It

6See also Stewart, 563 U.S. at 257 (explaining that Coeur d’Alene “refused to
allow an Indian Tribe to use Ex parte Young to obtain injunctive and
declaratory relief establishing its exclusive right to the use and enjoyment
of certain submerged lands in Idaho and the invalidity of all state statutes
and regulations governing that land”).

11
would merely resolve the plaintiffs’ individual claims that they have
their own right to fish there. 7

A decision of the Sixth Circuit is instructive. In Hamilton v.
Myers, 281 F.3d 520 (6th Cir. 2002), the court was asked to determine
whether the plaintiffs could “seek a judicial declaration of, and an
injunction protecting, their alleged exclusive riparian rights over
Doherty land grants submerged under [a] Lake.” Id. at 527. The court
observed that “[u]nlike the Tribe in Coeur d’Alene, the Hamiltons are
not seeking to divest sovereign ownership of [the] Lake from the state,
or seeking entitlement to the exclusive use and occupancy of the lake.
Nor are the Hamiltons seeking to invalidate the regulatory authority
of the [state] agencies” over the lake. Id. at 528. If “the Hamiltons
prevail at trial,” the court explained, the “Lake will remain within the
sovereign control of the State … and will continue to be subject to [the
state’s] regulatory authority. At most …, the State … will be required
to tailor its regulatory scheme to respect the [plaintiffs’]
constitutionally protected riparian rights.” Id. The court held that
Coeur d’Alene did not “extend” to that case. Id. So too here. If the
plaintiffs succeed in obtaining their requested relief, at most the state
would need to tailor its regulatory scheme to respect the plaintiffs’
fishing rights. That is a “typical Young action,” which seeks to “bring
the State’s regulatory scheme into compliance with federal law.”
Coeur d’Alene, 521 U.S. at 289 (O’Connor, J., concurring in part and

7 The DEC defendants argue that the plaintiffs “have at various points …
suggested that ownership of all or part of the Shinnecock Bay is itself
‘contested,’ or that all or part of the Bay is under Shinnecock ‘jurisdiction.’”
DEC Defendants’ Br. 37. Whatever the plaintiffs may have suggested about
the status of the Shinnecock Bay, the relief they seek in this case is not a
“right to exclude all others.” Western Mohegan, 395 F.3d at 22.

12
concurring in the judgment). The requested relief would not divest
the state of its ownership of the submerged land or the waters, which
means this suit is not effectively one against the state.

We hold that the plaintiffs’ claims seeking prospective relief
against the DEC officials fall within the Ex parte Young exception to
state sovereign immunity and accordingly may proceed.

B

Article III of the Constitution limits the jurisdiction of federal
courts to “Cases” and “Controversies.” U.S. Const., art. III, § 2. The
doctrine of standing applies the case-or-controversy requirement by
“identify[ing] those disputes which are appropriately resolved
through the judicial process.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560, (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155
(1990)). To establish Article III standing, a plaintiff must have
“(1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo Inc. v. Robins, 578
U.S. 330, 338 (2016).

An injury in fact must be “concrete and particularized” and
“actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S.
at 560 (internal quotation marks omitted). Those claiming a “risk of
future harm” may seek “forward-looking, injunctive relief to prevent
the harm from occurring” but only if “the risk of harm is sufficiently
imminent and substantial.” TransUnion LLC v. Ramirez, 141 S. Ct.
2190, 2210 (2021); see also Lacewell v. Off. of Comptroller of Currency, 999
F.3d 130, 141 (2d Cir. 2021).

13
 When a plaintiff seeks relief from a threatened criminal
prosecution, the Supreme Court has instructed that imminence does
“not require a plaintiff to expose himself to liability before bringing
suit to challenge the basis for the threat—for example, the
constitutionality of a law threatened to be enforced.” MedImmune, Inc.
v. Genentech, Inc., 549 U.S. 118, 128-29 (2007). Rather, an imminent
injury is apparent when the plaintiff has alleged (1) “an intention to
engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by a statute,” and (2) “a credible threat of
prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S.
149, 159 (2014). 8 In other words, “a plaintiff has standing to make a
preenforcement challenge ‘when fear of criminal prosecution under
an allegedly unconstitutional statute is not imaginary or wholly
speculative.’” Hedges v. Obama, 724 F.3d 170, 196 (2d Cir. 2013)
(quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302
(1979)).

In this case, the DEC defendants initially raised the issue of
standing in their motion to dismiss and did so again in their motion
for summary judgment, arguing in both motions that the plaintiffs’

8 “The Supreme Court has not limited standing to pursue pre-enforcement
challenges only to plaintiffs intending conduct arguably affected with a
constitutional interest.” Knife Rts., Inc. v. Vance, 802 F.3d 377, 384 n.4 (2d Cir.
2015). In Cayuga Nation v. Tanner, for example, the plaintiffs alleged that a
federal statute preempted the “application of a local anti-gambling
ordinance” to the plaintiffs’ gaming facility. 824 F.3d 321, 323 (2d Cir. 2016).
Applying the Driehaus standard, we held that the plaintiffs had standing to
bring a pre-enforcement challenge because they “alleged that they intend
to conduct bingo games, which is clearly prohibited by the Ordinance, and
the Village has announced its intention to enforce the Ordinance against”
the plaintiffs. Id. at 331.

14
alleged injury was insufficiently imminent. 9 Because “standing was
challenged largely on the basis of the pleadings,” we “accept as true
all material allegations of the complaint, and … construe the
complaint in favor of the complaining party.” Gladstone Realtors v.
Village of Bellwood, 441 U.S. 91, 109 (1979); Sullivan v. Syracuse Hous.
Auth., 962 F.2d 1101, 1106-07 (2d Cir. 1992) (stating in the context of a
motion for summary judgment that the “court is constrained” when
ruling on standing to “accept as true all material allegations of the
complaint, and [to] construe the complaint in favor of the
complaining party”). “[A]long with the allegations made in the
complaint,” we consider “other facts and circumstances as may be
evident from the record.” Sullivan, 962 F.2d at 1107; see also Cargill Int’l
S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir. 1993)
(“[C]ourt[s] must look at the substance of the allegations to determine
jurisdiction.”).

The plaintiffs have shown that the threat of enforcement of the
state fishing laws amounts to an injury in fact. 10 First, the plaintiffs
allege “an intention to engage in a course of conduct” arguably
protected by federal law but proscribed by state law. Babbitt, 442 U.S.
at 298. The plaintiffs previously fished in the Shinnecock Bay in
violation of the state fishing regulations, and according to their
complaint they are “deterred and chilled” from doing so again
because they fear prosecution. App’x 18. The plaintiffs thereby

9See Motion to Dismiss at 7-9, Silva, No. 8-CV-3648, ECF No. 56-3; Motion
for Summary Judgment at 8-9, Silva, No. 8-CV-3648, ECF No. 84-4.
10Judge Wesley would conclude that only Silva has established an injury in
fact because the Smiths’ criminal proceedings were resolved in 2009 and
2010 and the Smiths do not allege a regular course of conduct. In his view,
the following analysis applies only to Silva rather than all three plaintiffs.

15
explain that they would fish if they did not fear prosecution. We have
said that “specificity” in such plans is not “essential to standing”
when the plaintiffs “have already been subjected to enforcement
actions.” Knife Rts., 802 F.3d at 386 n.5. Given the plaintiffs’ history of
fishing in the Shinnecock Bay and their prosecutions for that conduct,
their allegation is sufficient to show their intent to fish there again.

Second, the plaintiffs have alleged a “credible threat” of future
enforcement of the state fishing regulations. Babbitt, 442 U.S. at 298.
Each plaintiff has already been subject to fines and enforcement
proceedings for violating the fishing regulations, and “past
enforcement against the same conduct is good evidence that the threat
of enforcement is not chimerical.” Driehaus, 573 U.S. at 164 (internal
quotation marks omitted). The state has not foresworn enforcement
of the fishing regulations, and “courts are generally willing to
presume that the government will enforce the law as long as the
relevant statute is recent and not moribund.” Cayuga Nation, 824 F.3d
at 331-32 (internal quotation marks omitted). “Where, as here, there is
reason to believe that the plaintiffs will be targets of criminal
prosecution, and there has been no disavowal of an intention to
prosecute those individuals, the plaintiffs have adequately alleged a
credible threat of prosecution.” Id. at 331-32. Under these
circumstances, the plaintiffs’ “professed fear of prosecution is hardly
conjectural or hypothetical.” Knife Rts., 802 F.3d at 385.

The DEC defendants argue that a party “cannot rely on past
injury to satisfy the injury requirement” but “must show a likelihood
that he … will be injured in the future.” DEC Defendants’ Br. 45-46
(quoting Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004), and citing
City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)). But the
plaintiffs have shown such a likelihood by alleging both an intention
16
to fish and a credible threat of prosecution if they do. The cases on
which the DEC defendants rely involved circumstances in which a
past injury was unlikely to recur. In Lyons, the plaintiff sought
declaratory and injunctive relief because he claimed that he had been
illegally choked by Los Angeles police officers. 461 U.S. at 98. The
plaintiff alleged that the Los Angeles police routinely applied
chokeholds and that he faced a threat of being illegally subjected to
such treatment in the future. See id. at 105-06. The Supreme Court
decided that the plaintiff lacked standing to challenge the alleged
policy because he failed to identify an imminent threat that he would
again be stopped and mistreated by the police; he expressed no intent
to violate the law, and he could not establish that arresting police
officers would necessarily apply a chokehold in a future encounter.
See id. It was speculative that the plaintiff would again be stopped by
police officers who decided to employ a chokehold. Similarly, in
Shain, we held that the plaintiff was unable “to establish a sufficient
likelihood of a future unconstitutional strip search” because the
possibility that he would again be subjected to such a search relied on
an “accumulation of inferences” that were “simply too speculative
and conjectural.” 356 F.3d at 216.

The plaintiffs in this case do not rely on such speculation. The
state has promulgated its fishing regulations and does not dispute
that it would apply those regulations to the plaintiffs should they fish
again without complying. “[N]owhere in the record” have the
defendants “disavowed that they would criminally charge [the
plaintiffs] again in the same circumstances.” Knife Rts., 802 F.3d at
386-87; see also Holder v. Humanitarian L. Project, 561 U.S. 1, 16 (2010)
(recognizing a threat as imminent because the government had “not

17
argued ... that plaintiffs will not be prosecuted if they do what they
say they wish to do”).

The plaintiffs seek to fish in the Shinnecock Bay without
complying with state fishing regulations. We do not see a basis in the
record for dismissing their claims on the ground that they do not
intend to fish or that the state does not intend to enforce its
regulations. We hold that the plaintiffs have shown an injury in fact
for standing to pursue declaratory and injunctive relief.

C

Last, we address whether Younger abstention bars
consideration of Silva’s claims for injunctive relief. Silva pursued two
different claims for injunctive relief. The first would “enjoin[] the
Defendants from enforcing the laws of the State of New York against
Plaintiff Silva in Southampton Town Justice Court in Case
No. 17-7008.” App’x 22. The second would “enjoin[] the Defendants
from … interfering with Plaintiffs’ use of the waters, fishing, taking
fish, and holding fish and shellfish in Shinnecock Bay and its estuary
and other usual and customary Shinnecock fishing waters.” App’x 22.
Although there was an ongoing state prosecution when Silva filed his
federal complaint, that proceeding has now ended. Silva’s first
claim—and the Younger issue associated with it—is therefore moot.
Silva may proceed on his second claim for injunctive relief.

We faced a similar situation in Pathways, Inc. v. Dunne, 329 F.3d
108 (2d Cir. 2003). In that case, “the lawsuits and litigation efforts
initiated by [the defendants] against [the plaintiff] in the state
courts … concluded.” Id. at 114. We decided that the plaintiff’s claims
for injunctive relief that implicated “state cases pending when the
District Court ruled” were “now moot because those cases are

18
concluded.” Id. But, like Silva’s claims, the plaintiff’s claims included
“a prospective component: [the plaintiff] sought to prevent suits that
[the defendants] might file in the future, or other obstructive activity
in which they might engage.” Id. Those forward-looking claims were
not barred because “Younger is not a bar to federal court action when
state judicial proceedings have not themselves commenced.” Id.
(quoting Hawaii Hous. Authority v. Midkiff, 467 U.S. 229, 238-39
(1984)). 11

Because there is no dispute that Silva’s prosecution has ended,
we regard his request to enjoin that prosecution as moot. But Younger
abstention does not affect his other claim for injunctive relief. 12

11 Presented with a similar situation, the Tenth Circuit “vacate[d] the
district court’s order dismissing [the plaintiff’s] claims on Younger grounds
and remand[ed] these claims for further consideration.” Columbian Fin.
Corp. v. Stork, 811 F.3d 390, 395 (10th Cir. 2016); see also Bass v. Butler, 258
F.3d 176, 179 (3d Cir. 2001); Davis v. Rendell, 659 F.2d 374, 376 (3d Cir. 1981);
Wood v. Several Unknown Metro. Police Officers, 835 F.2d 340, 341-42 (D.C. Cir.
1987).
12The DEC defendants argue that Younger abstention requires dismissal of
Silva’s claim for injunctive relief because he did not “exhaust[] his state
court appellate remedies.” DEC Defendants’ Br. 42. To be sure, Silva may
not forgo appealing an adverse state-court judgment to pursue a collateral
attack on that judgment in federal court. In Huffman v. Pursue, Ltd., for
example, the plaintiff did not appeal a state-court judgment issued against
him and instead sought to enjoin the execution of that judgment in federal
court. 420 U.S. 592, 599 (1975). The Supreme Court said that the plaintiff
“must exhaust his state appellate remedies before seeking relief” in federal
court. Id. at 608. Here, by contrast, Silva’s second claim for relief does not
collaterally attack his criminal conviction but instead seeks prospectively to
prevent the defendants from interfering with his alleged right to fish.

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 II

As for the plaintiffs’ discrimination claims, we conclude that
the district court properly granted summary judgment to the
defendants because there is no evidence in the record that would
permit an inference of discriminatory intent.

Section 1981 provides that “all persons have equal right to
make and enforce contracts,” and § 1982 “establishes that all persons
have equal right to purchase, lease, sell, hold, and convey real and
personal property.” Costello v. Town of Huntington, No. 14-CV-2061,
2015 WL 1396448, at *12 (E.D.N.Y. Mar. 25, 2015) (citing 42 U.S.C.
§§ 1981, 1982). To state a prima facie claim under either provision,
plaintiffs must prove: “(1) they are members of a racial minority;
(2) an intent to discriminate on the basis of their race by defendant;
and (3) the discrimination concerned one or more of the activities
enumerated in the statute (i.e., make and enforce contracts, sue and
be sued, give evidence, etc.).” Mian v. Donaldson, Lufkin & Jenrette Sec.
Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).

The second element of the claim—an intent to discriminate—is
the focus of this appeal. To survive summary judgment, the plaintiffs
needed to produce enough evidence for a reasonable jury to find that
the defendants intentionally discriminated against the plaintiffs
based on race. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C.
Cir. 2013) (“For purposes of summary judgment, the operative
question under Section 1981 … is whether the employee produced
sufficient evidence for a reasonable jury to find that … the employer
intentionally discriminated against the employee on the basis of
race.”) (internal quotation marks omitted). The plaintiffs did not
provide evidence from which a rational trier of fact could find racially

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discriminatory intent. The record shows that the DEC officials cited
the three plaintiffs for violating race-neutral, generally applicable
fishing regulations in state waters. There is no evidence that the DEC
officials did or said anything that would indicate racial animus. Nor
is there evidence that they treated non-Indians more favorably than
the plaintiffs.

The plaintiffs point to an email that, they argue, establishes
“illegal racial profiling of Shinnecock people of the Native American
race.” Appellants’ Br. 22. The email, dated March 28, 2017, and sent
from DEC Captain Dallas Bengel to a large group of DEC employees
(including Laczi and Farrish), explained that “[w]ord is out that the
Shinnecocks are actively seeking a shipper for glass eels” and noted
that the DEC “will have to work the off-reservation areas diligently
to prevent illegal harvest.” App’x 420. The plaintiffs argue that the
email reflects racial animus because it identifies the “Shinnecocks.”
But “Shinnecocks” is not a slur; it describes the tribe and its members.
The email does not instruct DEC officials to harass or to profile tribe
members; it directs them to work “diligently to prevent [an] illegal
harvest” of glass eels—a nondiscriminatory law-enforcement
objective.

Without evidence of racial animus, the plaintiffs’
discrimination claims cannot survive summary judgment. We affirm
the judgment of the district court insofar as it granted of summary
judgment on these claims.

CONCLUSION

The district court erred in granting summary judgment to the
DEC officials on the plaintiffs’ claims for declaratory and injunctive
relief with respect to their fishing rights. The district court properly

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granted summary judgment to the DEC itself on those claims and to
all the defendants on the discrimination claims. Accordingly, we
affirm in part and vacate in part the judgment of the district court.
The case is remanded for further proceedings consistent with this
opinion.

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