MEMORANDUM & ORDER New York State regulates the surfclam fishery in its waters through statute and through regulations promulgated by the New York State Department of Environmental Conservation (“DEC”). The Plaintiffs here are various surfclam harvesting companies that hold permits for this fishery along with other entities involved in the fishery, including vessel owners and processors. The defendants are DEC and Basil Seggos, the Commissioner of DEC, in his official capacity. (See ECF No. 17; December 15, 2017 Order.) Plaintiffs brought this action to challenge three state laws: the Single Vessel Rule, the 70-Foot Rule, and the Residency Rule. Plaintiffs assert that these laws are preempted by federal fishery endorsements held by vessels owned by certain Plaintiffs. Plaintiffs also claim that these laws violate the Dormant Commerce Clause, the Privileges and Immunities Clause, and/or the Equal Protection Clause. Pending before the Court is Plaintiffs’ motion for a preliminary injunction seeking to enjoin enforcement of the three challenged laws. For the reasons stated below, Plaintiffs’ motion is denied.I. BACKGROUNDA. Overview of the Surfclam FisheryNew York’s Atlantic Ocean surfclam fishery (the “Surfclam Fishery”) is located in waters that are all within three nautical miles of New York’s coastline. (Decl. of Deborah Barnes (“Barnes Decl.”)2, ECF No. 10); 6 N.Y.C.C.R.R. §§43-1.1, 43-2.3. The Surfclam Fishery is regulated by DEC.Besides New York’s Surfclam Fishery, there are also surfclam fisheries in other states and in the federally regulated exclusive economic zone, the area between 3 miles and 200 miles from shore. (See Amendment 1 to the Fishery Management Plan (“FMP Amendment 1″) at 1-2, Complaint Ex. C); see generally New York v. Atl. States Marine Fisheries Comm’n, 609 F.3d 524, 527, 532 (2d Cir. 2010). New York’s Surfclam Fishery, however, is important to the entities that process surfclams for human consumption because “the inshore fishery off Long Island can be often pursued when the weather will impede the federal offshore vessels’ efforts to fish for surf clams in offshore federal waters.” (Aff. of Chris Shriver (“Shriver Aff.”)7, ECF No. 2.) Thus, although it appears that surfclams are generally fungible, the surfclams from the New York Surfclam Fishery apparently have a particular value to processors because a steady supply from this fishery allows processors to keep their plants operating during “weather impacted times, which keeps [their] employees working and [their] customers supplied.” (Id.)In addition to the market for surfclams that are sold for human consumption, the bait market also purchases surfclams. (Decl. of J. Lee Snead (“Snead Decl.”)
67, 76. ECF No. 2.)As explained further infra, DEC closed the Surfclam Fishery in 1993 and only allowed harvesting companies and vessels that were harvesting at that time to obtain the Surfclam Permits issued by DEC that are now necessary to harvest in the fishery. The Surfclam Fishery consists, generally, of two types of harvesting companies that hold Surfclam Permits — harvesting companies which are controlled by entities that process clams for human consumption and “independent” companies. At present, all such surfclam processors are located outside of New York.When the Surfclam Fishery was closed in 1993, the majority of the harvesting companies that obtained permits were independent owner-operators who relied on the Surfclam Fishery for their livelihood. (Barnes Decl.12.) At that time, most of these independent companies appear to have owned a single vessel. Since 1993, many of these independent owner-operator harvesting companies have been acquired by out-of-state entities affiliated with the processors located outside of New York.At present, there are 17 harvesting companies that hold Surfclam Permits. One processor, Seawatch International, Ltd. (“Seawatch”) currently controls eleven harvesting companies. Another out-of-state processor controls two harvesting companies. There are only two independent owner-operators who still own surfclam vessels that they consistently operate in the Surfclam Fishery. There are two other remaining “independent” companies — however, they do not own their own usable vessels. At present, in total, 12 out of the 17 harvesting companies do not own their own usable vessels — 8 of these 12 harvesting companies are controlled by Seawatch.In addition to the harvesting companies that hold Surfclam Permits, there are also companies in the Surfclam Fishery which own clamming vessels that they lease to the harvesting companies that have Surfclam Permits, but no longer have their own usable clamming vessels. At present, there are three such companies operating in the Surfclam Fishery.In 2009, DEC decided to change the regulatory regime governing the Surfclam Fishery by enacting an Individual Fishing Quota (“IFQ”) system, which took effect in 2010. At present, the 17 harvesting companies each receive one IFQ, which allows each vessel to harvest 1/17th of the total annual harvest limit in a given year.1In 2016, DEC adopted the Single Vessel Rule, a regulation that limits each vessel in the fishery to harvesting only one IFQ, which, according to DEC, was done to protect the independent owner-operators. The twelve harvesting companies that no longer own usable vessels maintain that the Single Vessel Rule, along with the Residency Rule and the 70-Foot Rule — two other laws that limit which vessels can be used in the Surfclam Fishery — will prevent most of them from harvesting IFQs. Fifteen of the harvesting companies, along with vessel-leasing companies and other related entities, filed the instant suit, which challenges: (1) the Single Vessel Rule; (2) the Residency Rule — a regulation adopted by DEC in 1993; and (3) the 70-Foot Rule — a New York statute enacted in 1997.B. History of DEC’s Regulation of the Surfclam FisheryPrior to 1993, the Surfclam Fishery was largely unregulated and there were no restrictions on the number of participants, vessels, or the number of surfclams that could be taken. (Snead Decl.29.) During the 1970s and 1980s, approximately five vessels regularly harvested clams in the Surfclam Fishery. (FMP Amendment 1 at 3.) Beginning in 1991, the number of fishermen in the Surfclam Fishery increased due to restrictions placed on the surfclam fishery in federally regulated waters. (Id. at 3.) In 1992, this resulted in a total harvest from the New York Surfclam Fishery of nearly 500,000 bushels, which was almost triple the prior 20-year average. (Id.)In 1993, DEC adopted emergency regulations that: (1) closed the Surfclam Fishery, turning it into a “limited entry” fishery; and (2) also imposed other control measures. At the time, a majority of the harvesting companies were independent owner-operators. (Barnes Decl.12.)A year later, in 1994, the New York Legislature passed legislation that required DEC’s regulations for the Surfclam Fishery to “take into consideration and attempt to maintain the economic viability of”:those portions of the surf clam harvesting and processing industry that have a longstanding investment in the domestic surf clam industry; and….the traditional established New York based commercial surf clam/ocean quahog harvesting industry, processors and packers that rely on this fishery.N.Y. Envtl. Conserv. Law (“ECL”) §§13-0309(12)(e)-(f).DEC adopted its emergency regulations to “conserv[e] the surfclam resource and prevent[] an increase in fishing effort until such time as a comprehensive surfclam management plan was adopted pursuant to [NY ECL §] 13-0308.” (FMP Amendment 1 at 3.)In these regulations, DEC determined that only harvesting companies with vessels that had harvested surfclams in the Surfclam Fishery between January 1, 1993 and August 24, 1993 could obtain a permit for the Surfclam Fishery. 6 N.Y.C.C.R.R. §43-3.4(a); (FMP Amendment 1 at 3; Barnes Decl.7; Snead Decl.13). At the time, 25 vessels met this criteria — each of these vessels qualified as “eligible” vessels under DEC’s regulations and were permitted to continue to harvest in the Surfclam Fishery. 6 N.Y.C.C.R.R. §43-3.4(a); (FMP Amendment 1 at 3). While most of the harvesting companies that obtained Surfclam Permits in 1993 appear to have owned only a single eligible vessel, it appears that at least four of the harvesting companies owned multiple eligible vessels. (See Snead Decl.
