Jurist v. Long Island Power Auth.

Full title: HERBERT H. JURIST, SUSAN JOHNSON, DONALD POWERS, LINDA JURIST, ALENA…

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Date published: May 10, 2021

538 F. Supp. 3d 254 (E.D.N.Y. 2021)

Opinion

19-CV-3762 (MKB) (LB)

2021-05-10

Herbert H. JURIST, Susan Johnson, Donald Powers, Linda Jurist, Alena Walters, Robert Slawski, and Steve Walter, Plaintiffs, v. The LONG ISLAND POWER AUTHORITY, the Power Authority of the State of New York, Erik Kulleseid, Commissioner of the New York State Office of Parks Recreation and Historic Preservation, The New York State Office of Parks Recreation and Historic Preservation, the New York State Department of Environmental Conservation ("NYS DEC"), Basil Seggos, Commissioner of NYS DEC, The Bureau of Ocean Energy Management, the New York State Department of State, and the New York State Energy Research and Development Authority, Defendants.

Herbert H. Jurist, Freeport, NY, Pro Se. Susan Johnson, Jamaica, NY, Pro Se. Donald Powers, Merrick, NY, Pro Se. Linda Jurist, Freeport, NY, Pro Se. Alena Walters, Oceanside, NY, Pro Se. Robert Slawski, Copiague, NY, Pro Se. Steve Walter, Bayside, NY, Pro Se. Adam Michael Stolorow, Joyce E. Kung, Sive Paget & Riesel, P.C., New York, NY, for Defendant The Long Island Power Authority. Eileen P. Flynn, New York Power Authority, White Plains, NY, for Defendant The Power Authority of the State of New York. Elizabeth Morgan, Mihir Ashok Desai, New York State Office of the Attorney General, New York, NY, for Defendants Erik Kulleseid, The New York State Office of Parks Recreation and Historic Preservation, The New York State Department of Environmental Conservation, Basil Seggos, The New York State Department of State, The New York State Energy Research and Development Authority. Evan Pays Lestelle, Lestelle & Lestelle, APLC, Metairie, LA, James H. Knapp, United States Attorneys Office Eastern District of New York, Central Islip, NY, Matthew Mailloux, United States Attorney's Office, E.D.N.Y., Brooklyn, NY, for Defendant The Bureau of Ocean Energy Management.

BLOOM, United States Magistrate Judge

Herbert H. Jurist, Freeport, NY, Pro Se.

Susan Johnson, Jamaica, NY, Pro Se.

Donald Powers, Merrick, NY, Pro Se.

Linda Jurist, Freeport, NY, Pro Se.

Alena Walters, Oceanside, NY, Pro Se.

Robert Slawski, Copiague, NY, Pro Se.

Steve Walter, Bayside, NY, Pro Se.

Adam Michael Stolorow, Joyce E. Kung, Sive Paget & Riesel, P.C., New York, NY, for Defendant The Long Island Power Authority.

Eileen P. Flynn, New York Power Authority, White Plains, NY, for Defendant The Power Authority of the State of New York.

Elizabeth Morgan, Mihir Ashok Desai, New York State Office of the Attorney General, New York, NY, for Defendants Erik Kulleseid, The New York State Office of Parks Recreation and Historic Preservation, The New York State Department of Environmental Conservation, Basil Seggos, The New York State Department of State, The New York State Energy Research and Development Authority.

Evan Pays Lestelle, Lestelle & Lestelle, APLC, Metairie, LA, James H. Knapp, United States Attorneys Office Eastern District of New York, Central Islip, NY, Matthew Mailloux, United States Attorney's Office, E.D.N.Y., Brooklyn, NY, for Defendant The Bureau of Ocean Energy Management.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiffs Herbert H. Jurist, Susan Johnson, Donald Powers, Linda Jurist, Alena Walters, Robert Slawski, and Steve Walter,¹ proceeding pro se, commenced the above-captioned action on June 3, 2019, in the New York Supreme Court, Nassau County, against Defendants the Bureau of Ocean Energy Management ("BOEM") (a federal agency), the New York State Office of Parks Recreation and Historic Preservation ("Parks"), Parks Commissioner Erik Kulleseid, the New York State Department of Environmental Conservation ("NYS DEC"), NYS DEC Commissioner Basil Seggos, the New York State Department of State, and the New York State Energy Research and Development Authority (collectively, the "State Defendants"), the Long Island Power Authority ("LIPA"), and the Power Authority of the State of New York ("NYPA"). (Notice of Removal ¶ 1, Docket Entry No. 1.) On June 27, 2019, BOEM removed the action to the Eastern District of New York.² (Id.) Plaintiffs assert claims under various state and federal laws in connection with the construction of an Energy Education Center in Jones Beach State Park. (Verified Pet. & Compl. ("Compl.") ¶¶ 1–3, annexed to Notice of Removal as Ex. A, Docket Entry No. 1-1.)

1 By Order dated August 22, 2019, the Court granted the request from Plaintiffs Lawrence Ryan and Marie Ryan to withdraw from the case and terminated them from the case. (Order dated Aug. 22, 2019.)

2 On March 10, 2020, the Court denied a motion to remand the case to state court. (Report and Recommendation dated Oct. 4, 2019 ("Oct. 2019 R&R"), Docket Entry No. 43; Order adopting Oct. 2019 R&R dated Mar. 10, 2020, Docket Entry No. 50.)

BOEM, the State Defendants, LIPA, and NYPA separately moved for various reasons to dismiss the action and the Court referred the motions to Magistrate Judge Lois Bloom.³ By report and recommendation dated January 6, 2021, Judge Bloom recommended that the Court grant Defendants’ motions in part and decline to exercise supplemental jurisdiction over the state law claims (the "R&R"). (R&R, Docket Entry No. 88.) Plaintiffs filed objections to the R&R and Defendants have responded to Plaintiffs’ objections.⁴

3 (BOEM's Mot. to Dismiss, Docket Entry No. 81; Mem. in Supp. of BOEM's Mot. to Dismiss ("BOEM's Mem."), Docket Entry No. 82; State Defs.’ Mot. to Dismiss, Docket Entry No. 77; Mem. in Supp. of State Defs.’ Mot. to Dismiss ("State Defs.’ Mem."), Docket Entry No. 77-1; LIPA's Mot. to Dismiss, Docket Entry No. 75; Mem. in Supp. of LIPA's Mot. to Dismiss ("LIPA's Mem."), Docket Entry No. 75-2; NYPA's Mot. to Dismiss, Docket Entry No. 76-1; Mem. in Supp. of NYPA's Mot. to Dismiss ("NYPA's Mem."), Docket Entry No. 76-9; Order dated Oct. 12, 2020.)

4 (Pls.’ Obj. to R&R ("Pls.’ Obj."), Docket Entry No. 92; LIPA's Reply in Opp'n to Pls.’ Obj. ("LIPA's Reply"), Docket Entry No. 93; State Defs.’ Reply in Opp'n to Pls.’ Obj. ("State Defs.’ Reply"), Docket Entry No. 94; BOEM's Reply in Opp'n to Pls.’ Obj. ("BOEM's Reply"), Docket Entry No. 95; NYPA's Reply in Opp'n to Pls.’ Obj. ("NYPA's Reply"), Docket Entry No. 96.)

For the reasons set forth below, the Court adopts the R&R and (1) grants BOEM's motion to dismiss the action without prejudice for lack of subject matter jurisdiction, (2) grants the motions of the State Defendants, LIPA, and NYPA to dismiss Plaintiffs’ federal-law claims with prejudice, and (3) declines to exercise supplemental jurisdiction over the remaining state-law claims, and remands those claims to New York State Supreme Court, Nassau County.

I. Background

a. Factual background

On June 3, 2019, Plaintiffs commenced an action in the New York Supreme Court, Nassau County, against Defendants. (See generally Compl.) Plaintiffs’ claims arise from the ongoing construction of an Energy Education Center in Jones Beach State Park. (Id. ¶¶ 1–3.) Plaintiffs assert federal-law claims under the Land and Water Conservation Act (the "LWCA"), the Coastal Barrier Resources Act (the "CBRA"), the Coastal Zone Management Act (the "CZMA"), the National Environmental Policy Act (the "NEPA"), and the National Historical Preservation Act (the "NHPA"). (Id. ¶¶ 19–47, 194–235, 262–351, 380–431.) In addition, Plaintiffs assert various state-law claims, including violations of the State Environmental Quality Review Act ("SEQRA"), the Tidal Wetlands Act (the "TWA"), and the State Historical Preservation Act (the "SHPA"), as well as state common law claims for breach of public land trust and parkland alienation and public nuisance. (Id. ¶¶ 48–193, 236–261, 352–415, 432–475.) Plaintiffs allege that LIPA and NYPA plan to develop Jones Beach State Park, which is a serene and undeveloped area that is home to "many rare, endangered, and threatened species of animals," and to construct offshore wind turbines that will spoil their enjoyment of the park. (Id. ¶¶ 8–15.)

BOEM,⁵ the State Defendants,⁶ LIPA,⁷ and NYPA⁸ separately moved to dismiss for various reasons. On October 12, 2020, the Court referred the motions to Judge Bloom for a R&R. (Order dated Oct. 12, 2020.)

5 BOEM moved to dismiss, arguing that (1) Plaintiffs’ claims against BOEM should be dismissed pursuant to Rule 12(b)(1) because (a) Plaintiffs’ claims were unripe and (b) Plaintiffs lacked standing; (2) Plaintiffs’ claims should also be dismissed pursuant to Rule 12(b)(6) because (a) the onshore Energy Education Center development to which Plaintiffs object is not in BOEM's regulatory jurisdiction and (b) the federal laws on which Plaintiffs rely do not provide for private rights of action; and (3) any claims against BOEM under Article 78 fail on sovereign immunity grounds. (See BOEM's Mem.)

6 The State Defendants moved to dismiss, arguing that (1) the Eleventh Amendment barred Plaintiffs’ claims against the state and its agencies and any state-law claims brought against the NYS DEC Commissioner and Parks Commissioner, except as to Plaintiffs’ claims for injunctive relief under federal law against the Parks Commissioner; (2) the federal laws Plaintiffs allege that Defendants violated do not contain private rights of action; (3) the Court should decline to exercise supplemental jurisdiction over any remaining state-law claims; (4) Plaintiffs’ challenge to the Parks Department's determination under SEQRA that construction of the Energy Education Center would not lead to any adverse environmental impacts is time-barred; and (5) Plaintiffs’ complaint did not qualify as a short and plain statement of their claim under Rule 8 of the Federal Rules of Civil Procedure. (See State Defs.’ Mem.)

7 LIPA moved to dismiss, arguing that (1) the federal and state statutes that Plaintiff alleges were violated do not contain private rights of action; (2) assuming Plaintiffs were bringing a claim pursuant to Article 78 of the New York Civil Practice Law and Rules ("Article 78") against LIPA, which was not specifically alleged in the Complaint, the Court should decline to exercise supplemental jurisdiction over that remaining state-law claim; (3) Plaintiffs failed to state a claim because (a) their Article 78 action was time-barred, (b) their argument that parkland was being improperly alienated had not been applied to state parks under New York law, only to municipal parks, and (c) they had not stated the elements of a public nuisance claim under New York law; (4) Plaintiffs had not pleaded standing because their Complaint did not show that they would be specifically affected by the building of the Energy Center; (5) Plaintiffs failed to properly serve LIPA; and (6) Plaintiffs’ Complaint did not meet the requirements of Rule 8 of the Federal Rules of Civil Procedure. (See LIPA's Mem.)

8 NYPA moved to dismiss, expressly adopting its co-defendants’ arguments and separately arguing that (1) the Court lacks personal jurisdiction because Plaintiffs’ service of the Complaint was insufficient; (2) Plaintiffs lack standing because they had not alleged a specific injury; (3) Plaintiffs’ challenge to the Energy Center funding determination under SEQRA was barred by the applicable statute of limitations; (4) Plaintiffs fail to state a claim because (a) they had not established that they had suffered a particular injury, as was necessary to state a public nuisance claim under New York law, (b) that their parkland alienation claims do not apply to state parks such as the one at issue in this case, and (c) asserting that they seek Article 78 review under the federal statutes they cite does not save Plaintiffs’ claims; and (5) Plaintiffs’ complaint did not meet the requirements of Rule 8. (See NYPA's Mem.)

b. The R&R

In the R&R, Judge Bloom recommended that the Court grant BOEM's motion to dismiss for lack of subject matter jurisdiction and grant in part the motions to dismiss by the State Defendants, LIPA, and NYPA, dismiss the federal-law claims, and decline to exercise supplemental jurisdiction over the remaining state-law claims, instead remanding them to state court. (R&R 1–2.)

Judge Bloom concluded that Plaintiffs’ claims against BOEM are not ripe because they are "premised upon the occurrence of an event — the use of the Jones Beach site as a support facility for offshore wind power plants — that may never occur." (Id. at 15–16.) In addition, Judge Bloom found that Plaintiffs do not have standing to sue BOEM because they do not point to any actual or imminent injury that BOEM's action or inaction might cause. (Id. at 17–19.)

In addressing the State Defendants’ claims, Judge Bloom recommended dismissal because the state did not waive Eleventh Amendment immunity, and because there is no statutory basis for concluding that Congress intended to abrogate the State Defendants’ Eleventh Amendment immunity under any of the statutes at issue. (Id. at 21–22.) Judge Bloom noted that under the Eleventh Amendment, the Court cannot grant Plaintiffs relief under state law or consider claims for declaratory or injunctive relief under federal law against the state-agency defendants. (Id. at 22.) In addition, Judge Bloom noted that, "if at all, the Court may only consider claims for declaratory and injunctive relief under federal law against the individual state officials named as [D]efendants." (Id.)

As to the motions filed by NYPA and LIPA, Judge Bloom found that Plaintiffs had standing to sue NYPA and LIPA, at least under the applicable liberal pleading standard, based on Plaintiffs’ "sprinkled references to their interests in the affected area" and allegations that Plaintiffs used the park and would be injured by the planned development. (Id. at 22–23.)

However, Judge Bloom recommended that the Court dismiss Plaintiffs’ federal claims against all Defendants for failure to state a claim under federal law because the federal statutes on which Plaintiffs rely — the LWCA, CBRA, CZMA, NEPA, and NHPA — do not provide for private rights of action. (Id. at 23–25.) Because only Plaintiffs’ state-law claims remained,⁹ Judge Bloom recommended that the Court decline to exercise supplemental jurisdiction over the remaining claims and remand the case to New York State Supreme Court, Nassau County. (Id. at 25–27.)

9 Because Judge Bloom noted that the Court could at most consider claims for declaratory and injunctive relief against Commissioners Kulleseid and Seggos, she did not recommend dismissal of Plaintiffs’ federal claims against Commissioners Kulleseid and Seggos on Eleventh Amendment grounds and instead recommended dismissal of all of Plaintiffs’ federal claims based on the lack of private causes of action under the federal statutes. (R&R 23–25.) Accordingly, Judge Bloom found that no federal claims remained against any Defendant and therefore recommended remand pursuant to 28 U.S.C. § 1367. See 28 U.S.C. § 1367(c)(3) ("[D]istrict courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction ...."); Pension Benefit Guar. Corp. ex rel. Saint Vincent Cath. Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc. , 712 F.3d 705, 727 (2d Cir. 2013) ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." (quoting Valencia ex rel. Franco v. Lee , 316 F.3d 299, 305 (2d Cir. 2003) )); see also One Commc'ns Corp. v. JP Morgan SBIC LLC , 381 F. App'x 75, 82 (2d Cir. 2010) ("If all of a plaintiff's federal claims are dismissed, a district court is well within its discretion to decline to assert supplemental jurisdiction over any state law claims ....").

c. Objections to the R&R

Plaintiffs make several arguments in their objections to the R&R. (See Pls.’ Obj.) First, Plaintiffs argue that they are not bringing claims directly under the federal laws invoked in the Complaint but instead are seeking judicial review "of administrative actions rendered under federal law (or required under federal law to be taken)" pursuant to Article 78, and that Defendants’ actions may be reviewed under Article 78. (Id. at 6–7, 12–13, 15–20.) Second, Plaintiffs argue that New York State waived its sovereign immunity (1) by voluntarily participating in the federal programs at issue, and (2) because the LWCA and other statutes were enacted pursuant to the enforcement clause of the Fourteenth Amendment, and the defense of sovereign immunity does not apply. (Id. at 7–8, 13–14, 20–22.) Third, Plaintiffs argue that New York, in its written coastal management policy, made statements "to the effect that citizens are intended to ensure CZMA-mandated compliance of projects with our State's Coastal Management Policy," and that Judge Bloom erred in relying on George v. New York City Department of City Planning, 436 F.3d 102 (2d Cir. 2006), which drew support from precedents that have since been abrogated and relied on facts that have since changed. (Id. at 9, 34–37.) Fourth, Plaintiffs argue that the Court must remand this case to state court "if any basis upon which dismissal might ... rest in federal court may produce a different result in state court on any of the defenses raised," because "[d]ismissal on a removed action would have the clear effect of imposing federal requirements on state courts." (Id. at 9–10, 44.) Fifth, Plaintiffs argue that Judge Bloom "substantially ignores all claims except those that have been made against BOEM, and appears not to acknowledge the relationship between the federal and state obligations with respect to state agencies," erred in determining standing, redressability, and ripeness, and did not recognize the procedural injuries Plaintiffs have suffered. (Id. at 10.) Sixth, Plaintiffs argue that the R&R "misinterprets the basis for [their] request for a NEPA review of the Energy Center," among other claims. (Id.) Finally, Plaintiffs argue that Judge Bloom erred in reading the Complaint as concerned about "speculative future happenings" — specifically, the construction of offshore wind plants — when the construction of the Energy Center is currently causing "the addition of buildings, land modifications, fencing, relocation of public resources, and removal of the [ocean viewing vantage]," which Plaintiffs predict will "interfer[e] with a future environmental review of an offshore Energy Facility, to its favor, that will have to be performed."¹⁰ (Id. at 10–11.) Plaintiffs argue that a Massachusetts wind power developer has "supportive commitments" to use the park for transmission and that a transmission cable company "submitted an unsolicited application" to BOEM to use Jones Beach "for the siting of power delivery transmission cabling," (id. at 47–48), and that the ongoing construction of the Energy Center will affect future visual impact and cultural and historic resource studies that must be completed at the site when BOEM considers the future offshore wind project, (id. at 46–48).

10 Plaintiffs "make no objection to the recommendation that any requests for NEPA review [of the offshore power plant] be deemed unripe, provided that no plans have been submitted to BOEM for review." (Pls.’ Obj. 46.)

d. Defendants’ response to Plaintiffs’ objections

BOEM argues that the Court should adopt the R&R in its entirety because "[a]s the [R&R] correctly recognizes, BOEM has neither any regulatory jurisdiction over the Energy Education Center, nor any involvement, control, or responsibility for the project, which Plaintiffs attempt to challenge." (BOEM's Reply 1.) In addition, BOEM argues that Plaintiffs’ objections, like the Complaint, are "based on speculative expectations about what Jones Beach will be used for in the future" and on speculation about BOEM's involvement in those future projects, and do not undermine the R&R's conclusion that Plaintiffs’ claims are unripe and not fairly traceable to BOEM's actions. (Id. at 3–5.) Further, BOEM argues that in assessing subject matter jurisdiction pursuant to Rule 12(b)(1), Judge Bloom properly looked outside the pleadings to the May 26, 2020 Declaration of Lucas B. Feinberg, which established that BOEM was not involved in the Energy Center project, and while Plaintiffs challenge Judge Bloom's reliance on the declaration at this stage of the litigation, Plaintiffs do not contest its accuracy. (Id. at 8–9.) Finally, BOEM argues that Plaintiffs lack standing for the same reasons that their claim is unripe. (Id. at 9.)

The State Defendants argue that the Court should adopt the R&R in full because (1) the federal statutes Plaintiff invokes include no private right of action, (2) Plaintiffs may not raise violations of federal laws under Article 78 when the federal laws in question do not provide a private right of action, (3) George v. New York City Department of City Planning, 436 F.3d 102, 103 (2d Cir. 2006), which held that the CZMA does not contain a private right of action, is binding precedent regardless of Plaintiffs’ arguments, and (4) the Fourteenth Amendment does not automatically abrogate the Eleventh Amendment immunity of states, as Plaintiffs argue, and New York State did not implicitly waive its sovereign immunity because sovereign immunity must be expressly and unequivocally waived. (State Defs.’ Reply.)

LIPA argues that the Court should adopt the R&R in its entirety because Plaintiffs’ objections "merely repeat arguments from Plaintiffs’ opposition briefs with respect to LIPA's motion to dismiss," and notes that "Plaintiffs have not objected to the R&R's recommendation to decline supplemental jurisdiction." (LIPA's Reply 1.) In addition, LIPA argues that "Plaintiffs confusingly appear to rescind their withdrawal of their CZMA claim" in their objections and "should not be allowed to do so at this juncture." (Id. at 1 n. 1.)

NYPA argues that the Court should adopt the R&R in full because Judge Bloom correctly concluded that the federal statutes Plaintiff relied on do not create a private right of action and that Plaintiffs’ argument "that the federal claims should not be dismissed because they are merely seeking Article 78 review under these federal statutes" does not undermine this conclusion. (NYPA's Reply 2–3.) NYPA notes that Plaintiffs sought declaratory and injunctive relief under the CZMA and CBRA, not Article 78 review, and that New York courts have affirmed the dismissal of Article 78 proceedings brought under federal laws that lacked private rights of action. (Id. at 3.) NYPA further argues that the Court should reject Plaintiffs’ attempt to amend the Complaint to add a new cause of action. (Id. at 3–4.) Finally, NYPA argues that remand to state court is proper and notes that Plaintiffs did not object to the portion of the R&R recommending remand. (Id. at 4.)

II. Discussion

a. Standards of review

i. Report and recommendation

1 A district court reviewing a magistrate judge's recommended ruling "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and recommendation, the district court reviews de novo the parts of the report and recommendation to which the party objected. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir. 2015). The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record. See John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1 (E.D.N.Y. Nov. 24, 2015) (applying clear error when no objections to the magistrate judge's report and recommendation were filed). The clear error standard also applies when a party makes only conclusory or general objections. Fed. R. Civ. P. 72(b)(2) ("[A] party may serve and file specific written objections to the [magistrate judge's] proposed findings and recommendations."); see also Colvin v. Berryhill, 734 F. App'x 756, 758 (2d Cir. 2018) ("Merely referring the court to previously filed papers or arguments does not constitute an adequate objection under ... Fed. R. Civ. P. 72(b)." (quoting Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) )); Benitez v. Parmer, 654 F. App'x 502, 503–04 (2d Cir. 2016) (holding that "general objection[s] [are] insufficient to obtain de novo review by [a] district court").

Whether clear error review or de novo review applies when an objecting party reiterates the arguments made to the magistrate judge is unclear. While the Second Circuit has suggested that clear error review is appropriate if a party's objection to a magistrate judge's report and recommendation repeats arguments already presented to and considered by the magistrate judge, see Mario, 313 F.3d at 766 ("Merely referring the court to previously filed papers or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) ...."), the Second Circuit has more recently stated that it is "skeptical" that the clear error standard would be appropriate when the objection is based on a previously asserted argument, see Moss v. Colvin, 845 F.3d 516, 520 n.2 (2d Cir. 2017) ("[W]e are skeptical that clear error review would be appropriate in this instance, where arguably ‘the only way for [the plaintiff] to raise ... arguments [on that point] [was] to reiterate them.’ " (third and fourth alterations in original) (first quoting Watson v. Geithner, No. 11-CV-9527, 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013) ; and then citing 28 U.S.C. § 636(b)(1) )); see also Harewood v. N.Y.C. Dep't of Educ., No. 18-CV-5487, 2021 WL 673476, at *6 (S.D.N.Y. Feb. 22, 2021) ("[W]hen the objections simply reiterate previous arguments or make only conclusory statements, the court should review such portions of the report only for clear error." (first citing Dickerson v. Conway, No. 08-CV-8024, 2013 WL 3199094, at *1 (S.D.N.Y. June 25, 2013) ; and then citing Kirk v. Burge, 646 F. Supp. 2d 534, 538 (S.D.N.Y. 2009) )); Castorina v. Saul, No. 19-CV-991, 2020 WL 6781078, at *1 (S.D.N.Y. Nov. 18, 2020) ("While courts in this [d]istrict sometimes state that objections that ‘simply reiterate [the] original arguments’ merit only clear error review, this rule lacks support in either 28 U.S.C. § 636(b)(1)(C) or Rule 72(b)(2) of the Federal Rules of Civil Procedure. The Second Circuit has expressed similar skepticism." (second alteration in original) (citations omitted)).

ii. Motion to dismiss

In reviewing a motion to dismiss under Rule 12(b)(6), a court must construe the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Kim v. Kimm, 884 F.3d 98, 103 (2d Cir. 2018) (quoting Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002) ); see also Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997) ). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). Although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

b. Unopposed portions of the R&R

Plaintiffs do not object to Judge Bloom's recommendation that the Court decline to exercise supplemental jurisdiction over the remaining state-law claims and instead remand those claims to state court.¹¹ Nor do Plaintiffs object to the legal conclusion that the federal statutes under which they assert their claims contain no express private right of action.¹² Having reviewed these recommendations for clear error and finding none, the Court adopts these recommendations pursuant to 28 U.S.C. § 636(b)(1).

11 In their objections, Plaintiffs argue that the Court should remand rather than dismiss the case so that any difference between state and federal standards should not prove decisive. The Court dismisses the claims on jurisdictional grounds without prejudice. See Katz v. Donna Karan Co. , 872 F.3d 114, 116 (2d Cir. 2017) (remanding because "a complaint must be dismissed without prejudice where the dismissal is due to the court's lack of subject matter jurisdiction"); see also He v. Off. of N.Y.C. Comptroller , 833 F. App'x 921, 921 (2d Cir. 2021) (same).

12 Plaintiffs appear to argue that they may sue under the CZMA because New York State has asked its citizens to assist in furthering compliance with its Coastal Management Policy. (Pls.’ Obj. 9.) In George , the Second Circuit found that CZMA does not create a private right of action against city agencies. George v. N.Y.C. Dep't of City Planning , 436 F.3d 102, 104 (2d Cir. 2006) (holding that "the [CZMA] creates no private right of action against city agencies" and noting that "[d]istrict courts within the Second Circuit have likewise declined to find a private right of action in the Act"). To the extent Plaintiffs are arguing that the Court should not apply George , the Court notes that George is binding precedent. Further, to the extent Plaintiffs are attempting in their objections to the R&R to rescind the withdrawal of their CZMA claim against LIPA, the Court declines to consider that claim because it was withdrawn in Plaintiffs’ opposition to LIPA's motion to dismiss. (See Pls.’ Opp'n to LIPA's Mot. 42, Docket Entry No. 75-9 ("[Plaintiffs] withdraw all CZMA claims against LIRA.").) Moreover, the Court notes that such a claim would nevertheless fail because the CZMA contains no private right of action.

c. Plaintiffs’ claims against BOEM are not ripe

Plaintiffs’ claims against BOEM, which are based on their prediction that the Energy Center project will be used "to support and advance development of wind-turbine power-generating plants in federal waters," (Compl. ¶ 286), are not ripe because the allegations are too conjectural to support a cause of action.

23456 Ripeness is a jurisdictional inquiry, and courts are obliged to consider ripeness before addressing the merits of a claim. See Islamic Cmty. Ctr. for Mid Westchester v. City of Yonkers Landmark Pres. Bd., 742 F. App'x 521, 523 (2d Cir. 2018) (stating that "[r]ipeness is a jurisdictional inquiry," such that a court cannot entertain a plaintiff's claims unless an issue is ripe (quoting Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005) )). The court "must presume that [it] cannot entertain [a plaintiff's] claims ‘unless the contrary appears affirmatively from the record.’ " Murphy, 402 F.3d at 347 (quoting Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) ). For a claim to be ripe, "it must present a real, substantial controversy, not a mere hypothetical question." Neroni v. Zayas, 663 F. App'x 51, 53 (2d Cir. 2016) (quoting Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687 (2d Cir. 2013) ); Nat'l Org. for Marriage, Inc., 714 F.3d at 688 ("Constitutional ripeness, in other words, is really just about the first Lujan factor — to say a plaintiff's claim is constitutionally unripe is to say the plaintiff's claimed injury, if any, is not ‘actual or imminent,’ but instead ‘conjectural or hypothetical.’ " (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) )). "In deciding whether an agency's decision is, or is not, ripe for judicial review" courts "consider: (1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented." Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) ; see also Murphy, 402 F.3d at 347 (explaining that in determining whether a case is ripe, a court is to "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration"). A claim is not ripe "if it depends upon contingent future events that may or may not occur as anticipated, or indeed may not occur at all." Kurtz v. Verizon N.Y., Inc., 758 F.3d 506, 511 (2d Cir. 2014).

7 Plaintiffs allege that the current development of the Energy Center is a prelude to the offshore wind power project which they seek to challenge. (Compl. ¶ 287 ("[T]hese authorities, upon belief, wish to use this Jones Beach park land to route federal-water wind-turbine power plant cables and wish to convert a portion of Jones Beach State Park at the west end to an industrial operations site to support these power plants.").) Plaintiffs contend that changes currently being made to the park in the construction of the Energy Center, which is near land "desired for the industrial site," (id.), will affect BOEM's review of an offshore wind power plant that specific developers hope to build, (id. ¶¶ 282–292; Pls.’ Obj. 46–49). Plaintiffs, in effect, argue that the possible alterations to the park that are currently being considered in order to build the Energy Center will affect BOEM's possible evaluation of the impact of offshore wind power on the park when companies that are interested in using the park as a site for wind power transmission seek BOEM's approval. Thus, Plaintiffs are not challenging a plan to build an offshore wind farm but rather what they perceive as conduct that could impact how BOEM evaluates such a plan if and when one is presented. See N.Y. C.L. Union v. Grandeau, 528 F.3d 122, 132 (2d Cir. 2008) ("[I]n Isaacs v. Bowen, 865 F.2d 468 (2d Cir. 1989), this Court deemed unripe a challenge to a proposed policy change in Medicare administration. [The Second Circuit] explained that [the] plaintiffs’ challenge was ‘directed at possibilities and proposals only, not at a concrete plan which has been formally promulgated and brought into operation.’ " (quoting Isaacs, 865 F.2d at 478 )). As acknowledged by Plaintiffs, before Plaintiffs can dispute a specific offshore wind power project with more than hypothetical features, potential developers will need to submit plans to BOEM, and BOEM will need to conduct a review of their plans. (Pls.’ Obj. 48 (explaining that plans are "expected to be submitted soon" and describing future review by BOEM).) Therefore, the plans Plaintiff challenges are too speculative for this Court to review, and Plaintiffs’ challenge, which is based on their expectations about BOEM's future involvement, is unripe.¹³ See Ohio Forestry Ass'n, Inc., 523 U.S. at 733–34, 118 S.Ct. 1665 (holding that the Sierra Club's challenge to a Forest Service land management plan that involved logging and clearcutting was unripe where, before the plan came to fruition, the Forest Service would have to "focus upon a particular site, propose a specific [tree] harvesting method, prepare an environmental review, permit the public an opportunity to be heard, and (if challenged) justify the proposal in court," and further holding that the Sierra Club could "bring its legal challenge at a time when harm is more imminent and more certain").

13 Plaintiffs lack standing to sue for the same reasons that their claims are not ripe. Nat'l Org. for Marriage, Inc. v. Walsh , 714 F.3d 682, 688 (2d Cir. 2013) ("Standing and ripeness are closely related doctrines that overlap most notably in the shared requirement that the plaintiff's injury be imminent rather than conjectural or hypothetical." (quoting N.Y. C.L. Union v. Grandeau , 528 F.3d 122, 130 n.8 (2d Cir. 2008) ).)

d. Plaintiffs do not have a federal cause of action

Plaintiffs cannot sue under any of the federal statutes they invoke because those statutes do not provide for a private cause of action, nor can they rely on Article 78 to save their federal claims.

i. The federal statutes do not provide for a private cause of action

8 As Judge Bloom found in the R&R, the federal statutes Plaintiffs invoke — the LWCA, CBRA, CZMA, NEPA, and NHPA — do not contain a private right of action.¹⁴ See George, 436 F.3d at 104 (holding that "the [CZMA] creates no private right of action against city agencies" and noting that the Third Circuit, together with district courts in this circuit, "have ... declined to find a private right of action in the [CZMA]"); Maiden Creek Assocs., L.P. v. U.S. Dep't of Transp., 823 F.3d 184, 189 (3d Cir. 2016) (noting that "NEPA does not include a citizen's suit provision"); Karst Env't Educ. & Prot., Inc. v. Env't Prot. Agency, 475 F.3d 1291, 1295 (D.C. Cir. 2007) (stating that "NHPA, like NEPA, contains no private right of action"); Cotz v. Gutierrez-Scaccetti, No. 19-CV-22075, 2020 WL 1284755, at *5 (D.N.J. Mar. 18, 2020) (collecting cases in which "courts in other circuits and districts have ... held or suggested that no private right of action exists under the NHPA" and holding that the plaintiff "failed to establish the NHPA provides a private right of action"); Friends of Roeding Park v. City of Fresno, 848 F. Supp. 2d 1152, 1160 (E.D. Cal. 2012) ("It is well-accepted that three of the federal statutes relied upon by [the plaintiffs] (NEPA, [LWCA], and NHPA) do not create private rights of action to enforce their provisions."). Indeed, Plaintiffs do not challenge the part of Judge Bloom's finding that there is no private cause of action under these statutes, and in reviewing Judge Bloom's determination, the Court finds no clear error.

14 Judge Bloom found that no court has assessed whether the CBRA contains a private right of action, (R&R 25), and it appears that the statute does not contain an express private right of action, see 16 U.S.C. § 3501 et. seq. Plaintiffs do not object to Judge Bloom's conclusion that the CBRA does not give rise to a private right of action.

ii. Article 78 does not save Plaintiffs’ federal claims

Article 78 does not provide a means for Plaintiffs to assert federal claims under statutes that do not otherwise provide for private causes of action.

910"Article 78 ‘provides the mechanism for challenging a specific decision of a state administrative agency.’ " Campo v. N.Y.C. Emps.' Ret. Sys., 843 F.2d 96, 101 (2d Cir. 1988) (quoting Liotta v. Rent Guidelines Bd., 547 F. Supp. 800, 802 (S.D.N.Y. 1982) ); see also Orange Env't, Inc. v. Orange Cnty. Legislature, 2 F.3d 1235, 1236 (2d Cir. 1993) (per curiam) (explaining that an "Article 78 proceeding is [an] appropriate vehicle to obtain judicial review of administrative implementation of legislatively imposed responsibilities" (citing Town of Arietta v. State Bd. of Equalization, 56 N.Y.2d 356, 361, 452 N.Y.S.2d 364, 437 N.E.2d 1121 (1982) )). In addition, plaintiffs cannot bring an Article 78 challenge under a federal law that contains no private right of action. See Matter of E. Ramapo Cent. Sch. Dist. v. King, 130 A.D.3d 19, 11 N.Y.S.3d 284, 286, 288 (2015) (holding that the plaintiff could not bring an Article 78 action alleging violations of the Individuals with Disabilities Education Act ("IDEA") because the IDEA did not contain a private right of action and no implied right of action exists); George v. Bloomberg, 2 A.D.3d 294, 769 N.Y.S.2d 535, 536 (2003) (holding that the plaintiffs could not bring an Article 78 proceeding to challenge the City of New York's plans for federal child development grant funds because the relevant federal statute — the Child Care and Development Block Grant Act, 42 USC § 9858 et seq. — did not provide for an express or implied private right of action); see also 35-41 Clarkson LLC v. N.Y.C. Hous. Auth., No. 11-CV-6770, 2012 WL 5992094, at *9 (S.D.N.Y. Nov. 30, 2012) ("Although interpretation of [the] plaintiffs’ [housing assistance payment] contracts, in an Article 78 proceeding or otherwise, may require reference to federal law, this fact alone is not sufficient to create a private right of action [under federal law].").

Plaintiffs argue that Article 78 provides an independent basis for bringing a private action under the federal statutes at issue, (Pls.’ Obj. 16 n.17), but rely on cases that address state rather than federal statutes to support their arguments. See Patrolmen's Benevolent Ass'n of the City of N.Y., Inc. v. De Blasio, 169 A.D.3d 518, 94 N.Y.S.3d 52, decision recalled and vacated on other grounds sub nom. Patrolmen's Benevolent Ass'n of City of N.Y. v. De Blasio, 171 A.D.3d 636, 101 N.Y.S.3d 280 (2019) (section 50-a of the New York Civil Rights Law ); Delgado v. N.Y.C. Hous. Auth., 66 A.D.3d 607, 888 N.Y.S.2d 19 (2009) (Administrative Code of the City of New York); Patrolmen's Benevolent Ass'n of the City of N.Y., Inc. v. De Blasio, No. 153231/2018, 2018 WL 3036350, at *1 (N.Y. Sup. Ct. June 19, 2018) (section 50-a of the New York Civil Rights Law ). Nothing in these cases suggests that the Court should construe Article 78 to allow for the civil enforcement of federal statutes where Congress did not intend for these statutes to provide a private right of action. Indeed, as the Appellate Division recognized in George, Article 78 does not permit suits under a federal statute where Congress did not provide a private cause of action. See George, 769 N.Y.S.2d at 536 ("Here, Congress clearly manifested its intent to negate a private right of action by creating an enforcement scheme that involves only federal administrative action .... [The court is] not persuaded otherwise by [a state law] manifesting legislative concern for the low salaries of day care workers."). The Court therefore finds that Plaintiffs cannot bring an Article 78 action alleging violations of the federal statutes at issue.

e. Most of Plaintiffs’ claims against New York state and its agencies are barred by sovereign immunity

Plaintiffs’ state-law claims against New York State, its agencies, and its employees, and Plaintiffs’ federal-law claims against New York State and its agencies, are barred by sovereign immunity because New York has not waived its immunity under any statute relevant to this case and Congress has not abrogated the state's immunity.¹⁵

15 Plaintiff sought injunctive and declaratory relief under federal law against Parks Commissioner Seggos and NYS DEC Commissioner Kulleseid, and although these claims are not barred by sovereign immunity, (see R&R 22 ("If at all, the Court may only consider claims for declaratory and injunctive relief under federal law against the individual state officials named as defendants.") (citing Tiraco v. N.Y. State Bd. of Elections , 963 F. Supp. 2d 184, 191–92 (E.D.N.Y. 2013) )); Tiraco , 963 F. Supp. 2d at 191–92 (setting forth the "three limited exceptions to state sovereign immunity": (1) a state's consent, (2) abrogation by Congress, and (3) "the Ex parte Young doctrine, [under which] sovereign immunity does not preclude a plaintiff from seeking prospective injunctive relief or declaratory relief against a state official acting in his or her official capacity for ongoing violations of federal law"), they nevertheless fail because the federal statutes Plaintiffs invoke do not contain private rights of action.

1112 The Eleventh Amendment bars suits in federal court against states, state agencies, and state officials acting in their official capacity, absent the state's consent to suit or an express or statutory waiver of immunity. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) ("The ultimate guarantee of the Eleventh Amendment is that nonconsenting [s]tates cannot be sued by private individuals in federal court." (citing Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) )); Browdy v. Karpe, 131 F. App'x 751, 752–53 (2d Cir. 2005) ("To the extent [the plaintiff] sues defendants in their ‘official capacity’ as employees of [a state agency], his ... claims for money damages are barred by the Eleventh Amendment." (citation omitted) (first citing Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ; and then citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100–01, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) )). "However, ‘a plaintiff may sue a state official acting in his official capacity — notwithstanding the Eleventh Amendment — for prospective, injunctive relief from violations of federal law.’ " State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 95 (2d Cir. 2007). "[T]he [Supreme] Court has insisted that an act of Congress purporting to abrogate a state's sovereign immunity under section 5 of the Fourteenth Amendment will not be effective unless Congress's intent to abrogate is ‘unmistakably clear.’ " Doe v. Pataki, 481 F.3d 69, 78 (2d Cir. 2007) (quoting Nev. Dep't of Hum. Res. v. Hibbs, 538 U.S. 721, 726, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) ; then citing Kimel, 528 U.S. at 73, 120 S.Ct. 631 ; and then citing Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) ).

13 Congress did not expressly waive state sovereign immunity under any of the federal statutes invoked in Plaintiffs’ Complaint, and Plaintiffs do not argue otherwise. Plaintiffs’ argument that the LWCA in particular, and other statutes mentioned more generally, impliedly waive New York's sovereign immunity because they were enacted pursuant to the enforcement clause of the Fourteenth Amendment fails. Pursuant to Supreme Court and Second Circuit law, Congress's abrogation of a state's sovereign immunity pursuant to the Fourteenth Amendment must be "unmistakably clear." See Doe, 481 F.3d at 78 ("[T]he Supreme Court has frequently instructed that a state will not be deemed to have waived its sovereign immunity unless the waiver is ‘express’ and ‘unequivocal.’ Similarly, the Court has insisted that an act of Congress purporting to abrogate a state's sovereign immunity under section 5 of the Fourteenth Amendment will not be effective unless Congress's intent to abrogate is ‘unmistakably clear.’ " (citations omitted) (first quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) ; and then quoting Nev. Dep't of Hum. Res., 538 U.S. at 726, 123 S.Ct. 1972 )).

III. Conclusion

For the foregoing reasons, the Court adopts the R&R¹⁶ and (1) grants BOEM's motion to dismiss and dismisses this action against BOEM without prejudice for lack of subject matter jurisdiction, (2) grants the motions of the State Defendants, NYPA, and LIPA to dismiss Plaintiffs’ federal-law claims with prejudice, and (3) declines to exercise supplemental jurisdiction over the remaining state-law claims against all Defendants, and remands those claims to New York State Supreme Court, Nassau County. The Clerk of Court is directed to mail copies of this Memorandum and Order to Plaintiffs.

16 Although the R&R considered additional arguments in support of the motions to dismiss, because the Court finds that the claims against BOEM should be dismissed as unripe, that Plaintiffs cannot state claims under federal law because the statutes they describe do not include federal causes of action, and that sovereign immunity bars Plaintiffs’ state-law claims against the state and its agencies and employees as well as Plaintiffs’ federal claims against the state and its agencies, the Court declines to consider the other grounds for dismissal set forth in the R&R.

SO ORDERED.

REPORT AND RECOMMENDATION

BLOOM, United States Magistrate Judge:

Seven¹ pro se plaintiffs² bring this hybrid-action for declaratory and injunctive relief against several New York state agencies and authorities and one federal agency, challenging the construction of an Energy Center at Jones Beach State Park. ECF No. 1-1 ("Compl."). The action invokes New York's Civil Practice Law and Rules ("C.P.L.R.") Article 78, seeking review of decisions made by various governmental bodies. Plaintiffs also seek relief under federal law, including the Coastal Barrier Resources Act ("CBRA"), the Land and Water Conservation Fund Act ("LWCFA"), the Coastal Zone Management Act ("CZMA"), the National Environmental Policy Act ("NEPA"), the National Historic Preservation Act ("NHPA"), and various provisions of New York state law. Id. ¶¶ 1-2. This case, initially filed in New York State Supreme Court, County of Nassau, was removed on June 27, 2019 by federal defendant Bureau of Ocean Energy Management ("BOEM"). ECF No. 1. All defendants now move to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants Power Authority of the State of New York ("NYPA") and Long Island Power Authority ("LIPA") also move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) for lack of proper service. Defendants Commissioner of the New York State Office of Parks Recreation and Historic Preservation, New York State Office of Parks Recreation and Historic Preservation ("PARKS"), New York State Department of Environmental Conservation ("DEC"), Commissioner of the Department of Environmental Conservation, New York State Department of State, and New York State Energy Research and Development Authority ("NYSERDA") (collectively hereinafter "the State defendants") also move to dismiss on Eleventh Amendment grounds. The Honorable Margo K. Brodie referred this matter to me for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). For the reasons set forth below, it is respectfully recommended that defendant BOEM's motion to dismiss should be granted and that the State defendants, NYPA, and LIPA's motions to dismiss should be granted in part. The Court should not exercise supplemental jurisdiction over the remaining state law claims but said claims should be remanded to state court.

BACKGROUND ³

Plaintiffs challenge the development and construction of an Energy Center on an undeveloped portion of Jones Beach State Park.⁴ Compl. ¶ 3. The development plans call for destruction of an existing structure and portions of "the west end" field, including an area offering views of the sunrise, and the construction of a 13,000-15,000 square foot Energy Education Center and outdoor exhibit space. Id. Plaintiffs assert that the center will require parking restrictions and closures of parts of the area to the general public. Id. It is alleged that defendants NYPA and LIPA will use the center "to conduct energy initiative marketing, and technology education." Id. ¶ 4. Plaintiffs assert that the State defendants, NYPA, and LIPA failed to recognize the interests of park users, disregarded legal requirements for public review, and are seeking to aid the development of offshore wind-turbine power plants. Id. ¶ 6. Plaintiffs proffer that "the whole reason the project exists is to support and advance development of wind-turbine power-generating plants in federal waters." Id. ¶ 286. They suggest that the Energy Center's construction is intended to "facilitate land easements ... and alterations to the land illegitimately influencing visual impact studies ... such that the ... project can be considered ‘development activity’ regulated by BOEM." Id. Further, plaintiffs aver that the reason the Jones Beach State Park location was chosen is because "authorities, upon belief, wish to use this Jones Beach park land to route federal-water wind-turbine power plant cables and wish to convert a portion of Jones Beach State Park at the west end to an industrial operations site to support these power plants." Id. ¶ 287. Plaintiffs allege that BOEM is implicated because it is the federal agency, within the Department of the Interior, which is authorized to regulate offshore energy exploration on the Outer Continental Shelf, including renewable energy.⁵ See 43 U.S.C. § 1337 ; 30 C.F.R. § 500 et. seq.

According to plaintiffs, the area of Jones Beach State Park at issue is a serene landscape, providing opportunities for birdwatchers, photographers, and people seeking to enjoy the beauty of the outdoors. Id. ¶ 8. The area is home to a diverse collection of flora and fauna, including rare and endangered species. Id. ¶ 11. This natural splendor is threatened by the Energy Center, which plaintiffs view as a precursor to the eventual taking of parkland for use as "an industrial site to support offshore power plants." Id. ¶ 13. They profess that "their ocean views from the field should not be obliterated in preparation for the study of visual impact of proposed power plants on views ... or [to] enable [a power plant] to use more of its leased area without compromising its prospects for award procurement." Id. ¶ 95. Plaintiffs claim that there have been "proposals to transfer power from New Jersey land to New York land via a high voltage DC injection cable through Jones Beach" and they "expect" that a powerplant developer has proposed to use "our park for transmission of power" from an offshore plant. Id. ¶ 139. Plaintiffs assert various federal and state law challenges to the development.

A. FEDERAL LAW CLAIMS

1. Violation of the Land and Water Conservation Fund Act

The LWCFA, 54 U.S.C. § 200305(f)(3), provides that property improved with funds provided by the Secretary of the Interior under the Act, cannot be used for anything other than "public outdoor recreation use." Plaintiffs allege that "the west end" field at Jones Beach State Park was previously improved with LWCFA funds and the Energy Center proposal runs contrary to the law's mandate that such land may only be used for a recreational purpose. Compl. ¶¶ 19-28. The project, it is feared, will destroy scenic land and disrupt the habitat of the area's wildlife, all without approval of the National Park Service, as required by law. Id. ¶¶ 24-28, 37. To avoid these harms, plaintiffs seek an order enjoining PARKS, LIPA, and NYPA from moving forward with the Energy Center Project. Id. ¶ 47.

2. Violations of the Coastal Barrier Resources Act

Plaintiffs allege that Jones Beach is located on a barrier island and therefore the proposed construction violates provisions of the CBRA banning construction on such islands. Id. ¶¶ 194-97. Plaintiffs allege that as the State defendants receive federal funding, they are required to comply with the CBRA, id. ¶¶ 202-19, and they bring claims against NYPA and the State defendants under the CBRA, id. ¶ 194. Plaintiffs seek a court order declaring the construction of the Energy Center to be a violation of the CBRA and believe that such an order will prevent the proposed development. Id. ¶ 235. Plaintiffs also seek an order requiring BOEM, which they claim has regulatory authority over the Energy Center, to make a consistency determination regarding the plans under the CBRA. Id. ¶ 297.

3. Violations of the National Historic Preservation Act

The NHPA and its implementing regulations require federal agencies to consider the impact of federal undertakings and federally funded projects on historic property. See 54 U.S.C. § 306101 ; 36 C.F.R. § 800.1. Plaintiffs allege that Jones Beach State Park, the west end field, and Bay Parkway are all eligible for protection under the NHPA and will all be impacted by the construction of the Energy Center. Compl. ¶¶ 380-81. As a result, plaintiffs believe that PARKS was required, but failed, to coordinate with BOEM for a proper assessment of the Energy Center project under the act. Id. ¶ 397. They further believe that BOEM should be required to "make a consistency determination regarding the project plans" under Section 106 of the NHPA. Id. ¶ 297.

4. Violations of the National Environmental Policy Act

The purpose of NEPA is to set a national policy of preventing damage to the environment. 42 U.S.C. § 4321 et. seq. It directs that all federal agencies generate an environmental impact statement for any "major Federal action" which addresses the impact of the action on the environment. Id. § 4332(C). Plaintiffs allege that the Energy Center satisfies the requirements of a major federal action because they claim it is related to the development of power plants in federal waters, subject to BOEM's jurisdiction. Compl. ¶ 288. Therefore, BOEM should be required to conduct an environmental assessment of the project. Id. ¶¶ 295, 297. Plaintiffs also claim that certain activities at the Energy Center will be federally funded, generating additional need for a NEPA review. Id. ¶¶ 298-302, 337. In addition to an order directed at BOEM, plaintiffs request an order requiring NYSERDA to comply with NEPA. Id. ¶ 338.

5. Violations of the Coastal Zone Management Act

According to plaintiffs, the CZMA requires that coastal development be consistent with a state's Coastal Management Policies and that the development of the Energy Center by PARKS, NYPA, and LIPA runs contrary to New York's policy. Id. ¶¶ 262-63. New York's policy favors recreational water activities which are, plaintiffs assert, pre-empted by the use of Jones Beach land to construct the Energy Center. Id. ¶ 267. The center's purpose is "energy education and promotional marketing," non-water dependant activities. Id. ¶ 268. In addition, plaintiffs allege that defendants’ plan further violates the CZMA because the destruction of parking lots and the closing of certain areas required for construction of the Energy Center will impermissibly curtail public access to "water related recreational resources and facilities." Id. ¶ 274. In response to these alleged violations, plaintiffs request an order declaring the west end field a water related facility, declaring that the Energy Center is not a water dependant use of land, and enjoining construction of the Energy Center. Id. ¶ 280. They also assert that BOEM should be required to make a consistency determination under the CZMA. Id. ¶ 297.

B. STATE LAW CLAIMS

1. Challenge to Assessment Under the New York State Environmental Quality Review Act

The New York State Environmental Quality Review Act ("SEQRA") requires governmental decision makers to consider the environmental impact of their decisions. Id. ¶¶ 48-49 (citing Matter of Coca-Cola Bottling Co. v. Bd. Of Estimate of the City of N.Y., 72 N.Y.2d 674, 679, 536 N.Y.S.2d 33, 532 N.E.2d 1261 (1988) ). Compliance with the Act requires the completion of an Environmental Assessment Form, a process intended to determine a project's environmental impact. Id. ¶ 50. Plaintiffs assert that defendant PARKS’ findings during this review of the Energy Center project are contrary to fact because the project will increase the need for parking, increase noise, require drilling, require the dumping of soil, result in increased bus traffic, and reduce scenic ocean views. Id. ¶¶ 55-92. They further claim that the use of solar panels as a power source will harm wildlife and that new traffic patterns will disrupt the natural character of the area. Id. ¶¶ 92-107. Plaintiffs also fear that the Energy Center will "spur demand for offshore wind-turbine Power Plant projects," further degrading the areas current status as a natural preserve. Id. ¶ 128. Plaintiffs maintain that these possible consequences not only undermine the SEQRA review but also run contrary to NEPA. Id. ¶¶ 153-54. The review process resulted in the designation of part of the area as a Protected Park Area ("PPA") but plaintiffs believe that this designation is only "subterfuge" and intended to make a future taking of the land for non-park purposes that much easier. Id. ¶¶ 156-57. In response, plaintiffs seek an order declaring the environmental assessment invalid and an injunction halting the project. Id. ¶ 179. For similar reasons, and for failure to follow the proper administrative procedure, plaintiffs seek the NYPA resolution authorizing funding of the project to be "rendered null and void." Id. ¶ 193.

2. Parkland Alienation

Plaintiffs assert a state law claim for Parkland Alienation against PARKS and its commissioner, LIPA, and NYPA under the theory that the defendants’ construction of the Energy Center at Jones Beach is impermissible because it is not for an outdoor public recreation purpose. Id. ¶ 236. Plaintiffs claim they are "beneficiaries of a public land trust" and the diversion of public park land for construction of the Energy Center is land alienation and a breach of the public trust. Id. ¶¶ 236-38.

3. State Historic Preservation Act ("SHPA")

Plaintiffs claim PARKS was required to make certain determinations under the SHPA but failed to make them. Id. ¶ 381. They believe that Jones Beach State Park, the west end field, and Bay Parkway are all subject to protection under the act.

4. Violations of the Tidal Wetlands Act

Plaintiffs also bring claims for violations of New York State's Tidal Wetlands Act which they allege requires a permit for construction on land adjacent to a tidal wetland. Id. ¶ 352. They seek a declaration that areas to be affected by the construction of the Energy Center are tidal wetlands, requiring certain actions by the state DEC and its commissioner. Id. ¶ 360. Plaintiffs also seek an injunction, prohibiting PARKS, LIPA, NYPA, and NYSERDA from proceeding with the Energy Center plans. Id. ¶ 361.

5. Public Nuisance

Finally, plaintiffs bring claims against PARKS, NYPA, and LIPA under the theory that the Energy Center is a public nuisance. Id. ¶ 432. They believe that the Energy Center's construction will result in "unreasonable interference with rights common to the general public" because it will significantly impact "public safety, peace, comfort, accessibility, and convenience." Id.

PROCEDURAL HISTORY

On June 3, 2019, pro se plaintiffs commenced this action in New York Supreme Court, Nassau County seeking both declaratory and injunctive relief. ECF No. 1, ¶ 1. Plaintiffs filed a Notice of Petition and Summons in state Supreme Court on June 7, 2019 requesting a court date. Id. ¶ 3. On June 27, 2019, federal defendant BOEM removed the case to this Court pursuant to 28 U.S.C. 1442(a)(1). Id. BOEM then filed an amended notice of removal on July 10, 2019.⁶ ECF No. 7. On July 11, 2019, plaintiff Alena Walters filed a "Letter Opposing ‘Amended’ Removal to Federal Court." ECF No. 9. The Court construed plaintiff Walters’ letter as a motion to remand the case back to Nassau County Supreme Court. ECF No. 12. On August 5, 2019, Judge Brodie referred plaintiff Walters’ remand motion to me for a Report and Recommendation. See Electronic Order dated August 5, 2019.

Prior to deciding the remand motion, I conferenced the case and after discussing certain concerns, directed plaintiffs to file a letter stating whether they would voluntarily discontinue this action against defendant BOEM. ECF No. 22. The State defendants, NYPA, and LIPA stated that, if the action was discontinued against BOEM, they would consent to remand this action to state court. See id. On August 12, 2019, two of the pro se plaintiffs withdrew from the case entirely, ECF No. 25, and on September 9, 2019, one additional plaintiff voluntarily dismissed his claims against BOEM. ECF No. 41. I recommended that the remand motion should be denied, ECF No. 43, and Judge Brodie adopted my Report and Recommendation, ECF No. 50. The defendants now move to dismiss the action. ECF Nos. 75-77, 81.

DISCUSSION

I. FEDERAL DEFENDANT – BOEM

The sole federal defendant, BOEM, moves to dismiss the action under Federal Rule of Civil Procedure 12(b)(1) alleging that the case is not ripe for review and that plaintiffs lack standing.⁷ Def. BOEM's Mot. to Dismiss 5-9, ECF No. 82. BOEM also moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Id. at 12-18. The Court must first consider the 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction before addressing other motions. See Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (citing Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946) ). In support of its position that the Court lacks subject-matter jurisdiction, BOEM points to both the lack of any action, involvement, or decision making on its part and plaintiffs’ "speculative allegation" that the Energy Center site may later be used to support offshore wind-turbine power plants. Def. BOEM's Mot. to Dismiss 6, 8, ECF No. 82.

A. Justiciability and Subject-Matter Jurisdiction

The Constitution restricts the power of the federal courts, limiting their jurisdiction by empowering them only to decide genuine " ‘Cases’ or ‘Controversies.’ " Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (citing U.S. Const. art. III, § 2, cl. 1 ). This constitutional limit on federal courts’ power gives rise to the justiciability requirements of "standing" and "ripeness." See Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) ("Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy."); Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687 (2d Cir. 2013) (explaining that an action must be ripe to be a real controversy). These requirements, if absent, deprive a federal court of subject-matter jurisdiction. See Nat'l Org. for Marriage, Inc., 714 F.3d at 687 (citing Connecticut v. Duncan, 612 F.3d 107, 112 (2d Cir. 2010) ) (stating that ripeness is a question of subject matter-jurisdiction); New York v. U.S. Army Corps. of Engineers, 896 F.Supp.2d 180, 189 (E.D.N.Y. 2012) (considering the question of standing as one of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) ).

At each stage of a case, the party invoking the court's jurisdiction " ‘bears the burden of establishing the[ ] elements’ of Article III standing." Carter v. HealthPort Tech., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice." Id. (internal quotation marks omitted) (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ). When confronted with a motion to dismiss, courts presume that general allegations encompass the specific facts needed to bring the claim. Id. (internal quotation marks omitted) (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ). When the challenge to subject-matter jurisdiction is based on the allegations contained in the pleadings, analysis of a motion brought under Rule 12(b)(1) requires the Court to determine "whether the Pleading ‘allege[s] facts that affirmatively and plausibly suggest that [the plaintiff] has standing to sue.’ " Id. (quoting Amidax Trading Grp. v. S.W.I.F.T SCRL, 671 F.3d 140, 145 (2d Cir. 2011) ). However, the Court "need not ‘credit a complaint's conclusory statements without reference to its factual context.’ " Amidax Trading Grp., 671 F.3d at 146 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 686, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). The Court may also consider evidence outside of the pleadings in resolving the issue. Id. at 145. In matters, such as this one, involving pro se plaintiffs, the Court is particularly mindful of its duty to liberally construe the pleadings "however inartfully pleaded." Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (internal quotation marks omitted) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ).

1. Ripeness

A case is ripe when it presents a "a real, substantial controversy, not a mere hypothetical question." Nat'l Org. for Marriage, Inc., 714 F.3d at 687 (internal quotation marks omitted) (quoting AMSAT Cable Ltd. v. Cablevision of Conn., 6 F.3d 867, 872 (2d Cir. 1993) ). A claim is not ripe when it depends on some future event, which may never occur. Id. (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) ). Federal courts may not exercise jurisdiction unless a claim is ripe. See Nutritional Health All. v. Shalala, 144 F.3d 220, 225 (2d Cir. 1998) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ). In the context of an action seeking a declaratory judgment challenged on ripeness grounds, courts must consider "(1) the fitness of the issues for judicial review, and (2) the injury or hardship to the parties of withholding judicial consideration." Id. (citing Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507.)

Further, a ripeness determination requires analysis of whether a claim is both Constitutionally ripe and prudentially ripe. See Nat'l Org. for Marriage, Inc., 714 F.3d at 687-88 (quoting Simmonds v. INS, 326 F.3d 351, 356-57 (2d Cir. 2003) ); N.Y. Civil Liberties Union v. Grandeau, 528 F.3d 122, 130 (2d Cir. 2008) (Sotomayor, J.) (quoting Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) ). Constitutional ripeness refers to whether a matter presents an actual dispute and finds its origins in Article III's "Case and Controversy" requirement. See Simmonds, 326 F.3d at 357. In this way, constitutional ripeness overlaps with the requirement that a plaintiff must have standing to sue. Grandeau, 528 F.3d at 130 n.8 (quoting Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 225 (2d Cir. 2006) ). This differs from prudential ripeness which requires a court to determine if a case would be better heard at some later time. Simmonds, 326 F.3d at 357. These categories of ripeness analysis are both designed to protect against a matter's premature adjudication. Id. In the context of a federal agency decision, ripeness review serves "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 732-33, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (internal quotation marks omitted) (quoting Abbott Labs., 387 U.S. at 148-49, 87 S.Ct. 1507 ).

a. Fitness for Judicial Review

In considering whether an issue is fit for judicial review, a court must ask whether the matter at hand depends "on future events or may never occur." Grandeau, 528 F.3d at 132 (quoting Simmonds, 326 F.3d at 359 ). A claim is unripe for review when it is based on "possibilities and proposals" rather than a "concrete plan" or action. Id. (internal quotation marks omitted) (quoting Isaacs v. Bowen, 865 F.2d 468, 477 (2d Cir. 1989) ).

b. Hardship of Withholding Consideration

The Court must also ask about any hardship to the parties caused by lack of adjudication. Grandeau, 528 F.3d at 134 (quoting Simmonds, 326 F.3d at 359 ). Possibility of future injury, unless it causes a present harm, is not the type of hardship requiring the Court's immediate consideration. Id. (quoting Marchi v. Bd. Of Coop. Educ. Servs., 173 F.3d 469, 478 (2d Cir. 1999) ). The Supreme Court instructs that hardship is not created by a federal agency decision when "they do not command anyone to do anything or to refrain from doing anything; they do not grant, withhold, or modify any formal legal license, power or authority; they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations." See Ohio Forestry Ass'n, Inc., 523 U.S. at 733, 118 S.Ct. 1665 (citing United States v. Los Angeles & Salt Lake R. Co., 273 U.S. 299, 309-10, 47 S.Ct. 413, 71 L.Ed. 651 (1927) ). In the context of a federal agency decision, courts must consider "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented." Id.

b. Analysis

Plaintiffs’ instant action seeks an order requiring PARKS, LIPA, and NYPA to submit plans for the Energy Center to BOEM for review and then "requiring BOEM to make a consistency determination regarding the project under the CZMA, LWCFA, CBRA, and Section 106 of the Historic Preservation Act, under the NEPA umbrella, and [to] conduct a NEPA (environmental) review of the project." Compl. ¶ 297. Plaintiffs believe BOEM is appropriately charged with this responsibility because "[t]he whole reason the [Energy Center] project exists is to support and advance development of wind-turbine power-generating plants in federal waters." Id. ¶ 286. Further, plaintiffs point to "proposals to transfer power from New Jersey land to New York land via a high voltage DC injection cable through Jones Beach" and they "expect" that a powerplant developer has proposed to use "our park for transmission of power" from an offshore plant. Id. ¶ 139.

Although at this stage of litigation, the Court must accept all factual allegations in the complaint as true, conclusory allegations are not afforded the same deference. See Amidax Trading Grp., 671 F.3d at 146 (quoting Iqbal, 556 U.S. at 686, 129 S.Ct. 1937 ). Plaintiffs’ allegation that the Energy Center is part of an established plan to use the Jones Beach site as a hub for offshore wind-turbines is the hook plaintiffs use to include BOEM in this litigation. However, plaintiffs’ 191-page, 477 paragraph complaint provides few facts to support this "mere conclusion." The complaint references appended documents to try to push this conclusory allegation into the realm of plausible fact. See Compl. ¶ 286, Ex. G; ECF 1-1, at 214. One such document, LIPA's Annual Report to the Finance and Audit Committee of the Board of Trustees on Economic Development, only briefly discusses the Energy Center. See id. Although this document discusses using the Energy Center to promote energy efficiency, renewable energy and offshore wind power, see id., this simply does not support plaintiffs’ conclusion that defendants have a concrete plan to use the site itself as a conduit or support station for offshore power plants falling under BOEM's jurisdiction.⁸ Plaintiffs claim that the reasons the Energy Center is located at Jones Beach is because "authorities, upon belief, wish to use this Jones Beach park land to route federal-water wind-turbine power plant cables and wish to convert a portion of Jones Beach State Park at the west end to an industrial operations site to support these power plants." See id. ¶ 287. This is just conjecture on plaintiffs’ part, lacking factual support, which the Court cannot accept as true. See Amidax, 671 F.3d at 144 (affirming the district court's dismissal for lack of subject-matter jurisdiction in a case where the complaint was "premised upon conjecture"). Further, mere policy proposals or government rumination about future plans does not make a controversy ripe for this Court's adjudication. See Grandeau, 528 F.3d at 132.

Plaintiffs’ basis for asserting the need for BOEM action is premised upon the occurrence of an event – the use of the Jones Beach site as a support facility for offshore wind power plants – that may never occur. Therefore, plaintiffs’ claims against BOEM are not ripe for judicial review. Id. at 132 (quoting Simmonds, 326 F.3d at 359 ) (discussing how an issue is not fit for review when it depends on an event which may never occur). Plaintiffs will face no hardship as a result of BOEM's dismissal from this case as BOEM has not taken any action in connection with the Energy Center. See Ohio Forestry Ass'n, Inc., 523 U.S. at 733, 118 S.Ct. 1665 (finding no hardship when challenged agency provisions do not create adverse legal effects). Should facts change and events occur which trigger a real need for action by BOEM, the courts will be available to adjudicate such claims which may arise. However, at this time, plaintiffs’ claims against BOEM are unripe and should be dismissed.

2. Standing

Although plaintiffs’ claims against BOEM are unripe, the Court will briefly turn to the closely related doctrine of standing. As with ripeness, "standing ‘involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.’ " Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ). A plaintiff has standing to bring an action, when he "demonstrate[s] that he has suffered ‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a favorable decision." Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). "Injury in fact" means "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Donoghue v. Bulldog Investors General Partnership, 696 F.3d 170, 175 (2d Cir. 2012) (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 ). In addition to these requirements, Courts also impose prudential standing requirements, including the need for a plaintiff to demonstrate that a claim falls "within the zone of interests protected or regulated by the" statute or provision under which the suit is brought. Bennett, 520 U.S. at 162, 117 S.Ct. 1154 (citing Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ).

In Bennett, the Supreme Court considered a claim brought by petitioners, two irrigation districts and the operators of two ranches within those districts, who alleged that the Bureau of Reclamation's⁹ compliance with a Biological Opinion promulgated by the Fish and Wildlife Service would irreparably damage their use of the reservoirs at issue. Id. at 159-60, 117 S.Ct. 1154. Petitioners claimed that they were injured because they used the available water for irrigation, recreation, and for aesthetic purposes. Id. at 160, 117 S.Ct. 1154. After finding that petitioners fell within the zone of interest of the statute in issue, the Court found that the alleged injury suffered by petitioners was "fairly traceable" to the Fish and Wildlife Service's Biological Opinion and that petitioners had standing. Id. at 170-71, 117 S.Ct. 1154.

Here, like in Bennett, the plaintiffs claim injury to their "recreational, aesthetic, and naturalist interest." Compl. ¶ 200. However, unlike in Bennett, plaintiff's fail to show how the injury they allege is "fairly traceable" to defendant BOEM. In Bennett, the Supreme Court recognized an affirmative action by the Fish and Wildlife Service, the issuing of its Biological Opinion, as a cause of petitioners’ alleged injury. 520 U.S. at 170-71, 117 S.Ct. 1154 ("The service itself is, to put it mildly, keenly aware of the virtually determinative effect of its biological opinions."). In this case, plaintiffs fail to identify any action on the part of BOEM which may be fairly construed as causing their injury.

In their reply to defendant BOEM's motion to dismiss, plaintiffs suggest that they have standing to bring this suit challenging BOEM's "inaction" in this matter under the Administrative Procedure Act ("APA"). Pls.’ Reply to Def. BOEM's Mot. 20, ECF 85-1. Plaintiffs point to the fact that under the APA, agency action also includes an agency's "failure to act." Id. (citing 5 U.S.C. § 551(13) ). Although not expressly raised in the complaint, in light of plaintiffs’ pro se status, the Court will construe their claims as challenging BOEM's inaction under the APA. See Alexander v. United States Postal Service, 416 F.Supp.3d 202, 204 (E.D.N.Y. 2017) (construing a pro se complaint to raise the strongest possible claim). However, even if the Court were to accept BOEM's inaction as the basis for plaintiffs’ standing, plaintiffs’ claims still fail to show "an actual or imminent injury" as required. Plaintiff's lack standing for the same reason that their claims are unripe: because their claims are based on their hypothetical and speculative belief that the Energy Center is a precursor to the creation of an off-shore wind-turbine power plant facility at or connected to Jones Beach State Park. See Nat'l Org. for Marriage, Inc., 714 F.3d 682 at 688 (citing Lujan, 504 U.S. at 560, 112 S.Ct. 2130 ) ("Constitutional ripeness, in other words, is really just about the first Lujan factor – to say a plaintiff's claim is constitutionally unripe is to say the plaintiff's claimed injury, if any, is not ‘actual or imminent,’ but instead ‘conjectural or hypothetical.’ "). For the same reason that plaintiffs’ claims against BOEM are unripe, plaintiffs also lack standing.

Finally, plaintiffs incorrectly conflate the requirement that this court possess subject-matter jurisdiction with BOEM's previously recognized statutory right to remove this matter to federal court. See Pls.’ Reply to Def. BOEM's Mot. 15, ECF 85-1. As the Court held previously, the federal removal statute invoked in this case permitted defendant BOEM to remove this case to federal court. See ECF No. 50. The removal statute, 28 U.S.C. 1442(a)(1), does not independently confer jurisdiction on the Court to adjudicate an action. The Court still must assure itself at all stages of litigation that the exercise of its jurisdiction is proper. See Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (stating that jurisdiction is a non-waivable prerequisite and the Court must find that jurisdiction exists before deciding a case)).

Since plaintiffs lack standing to proceed against BOEM and their claims are not ripe, their claims against BOEM should be dismissed without prejudice. See Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 116 (2d Cir. 2017) (explaining that when a case is dismissed for lack of subject-matter jurisdiction, the dismissal must be without prejudice). As the Court lacks subject-matter jurisdiction over this matter, BOEM's other defenses should not be considered. See Rhulen Agency, Inc., 896 F.2d at 678.

II. STATE DEFENDANTS , NYPA, AND LIPA

Plaintiffs assert numerous claims against the State defendants, NYPA, and LIPA under federal and state law, seeking declaratory and injunctive relief. Compl. ¶¶ 1-2. The State defendants respond that many of plaintiffs’ claims are barred by the Eleventh Amendment. State Defs.’ Mot. to Dismiss 4-6, ECF No. 77-1. NYPA and LIPA¹⁰ both aver that the Court lacks subject-matter jurisdiction because the plaintiffs fail to adequately allege standing.¹¹ LIPA Mot. to Dismiss 13-14, ECF No. 75-2; NYPA Mot. to Dismiss 5-7, ECF No. 76-9. The State defendants, NYPA, and LIPA all assert that there is no private right of action under any of the federal statutes upon which plaintiffs rely.¹² State Defs.’ Mot. to Dismiss 6-8; LIPA Mot. to Dismiss 6-8; NYPA Mot. to Dismiss 9-12.

A. New York State and Its Agencies are Immune Under the Eleventh Amendment

Generally, "[t]he Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States ... and by its own citizens as well." Lapides v. Bd. of Regents of Univ. Sys. of Ga, 535 U.S. 613, 616, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890) ). The Amendment also generally bars suits against state agencies and officials when sued in their official capacity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). For these reasons, in a suit brought against a state, a federal court may not award retrospective relief or relief for past damages. Ward v. Thomas, 207 F.3d 114, 119 (2d Cir. 2000) (citing Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) ).

There are three exceptions to a state's Eleventh Amendment immunity. Tiraco v. N.Y. State Bd. Of Elections, 963 F. Supp. 2d 184, 191-92 (E.D.N.Y. 2013). First, a state may waive immunity and consent to suit in federal court. Pennhurst State Sch. & Hosp. 465 U.S. at 99, 104 S.Ct. 900 (citing Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883) ). Second, Congress may, in certain circumstances, lift the states’ immunity from suit when it states its unequivocal intention to do so. Id. (first citing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) ; then citing Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) ). Third, in Ex Parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court held that the Amendment does not bar prospective declaratory or injunctive relief against state officials alleged to be in violation of federal law. Tiraco, 963 F. Supp. 2d at 192 (citing State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 95 (2d Cir. 2007) ).

There are limits to these three exceptions. In cases where plaintiffs seek declaratory or injunctive relief, such relief is only available against a state official who must be specifically named. Id. at 192-93 (quoting Santiago v. N.Y. State Dep't of Corr. Servs., 945 F.2d 25, 32 (2d Cir. 1991) ). Also, the Eleventh Amendment does not permit a federal court to grant equitable relief when plaintiffs allege the state, its agencies, or officials have violated state law. Pennhurst State Sch. & Hosp. 465 U.S. at 106, 104 S.Ct. 900 ("[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials how to conform their conduct to state law.").

Many of plaintiffs’ claims in the instant action are barred by the Eleventh Amendment. First, the Court is unaware of any waiver by the state of its Eleventh Amendment immunity from suit under the statutes cited by plaintiffs. Second, plaintiffs do not point to, and the Court is unable to locate, a stated intent by Congress to abrogate New York's Eleventh Amendment immunity from suit under any of the federal statutes at issue in this case. See Pennhurst State Sch. & Hosp. 465 U.S. at 99, 104 S.Ct. 900 (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) ) (discussing the need for congress to expressly abrogate Eleventh Amendment immunity). In addition, although it is difficult to decipher the exact form of relief sought by plaintiffs, it is clear that they seek declaratory and injunctive relief against state agencies and officials under both federal and state statutes. Compl. ¶¶ 1-2. To the extent that relief is sought under state law, this Court is barred by the Eleventh Amendment from considering those claims. See Pennhurst State Sch. & Hosp. 465 U.S. at 106, 104 S.Ct. 900. Furthermore, the Eleventh Amendment bars this Court from considering claims for declaratory or injunctive relief against all of the state agencies named as defendants. See Tiraco, 963 F. Supp. 2d at 192-93. If at all, the Court may only consider claims for declaratory and injunctive relief under federal law against the individual state officials named as defendants. Id.

B. Plaintiffs’ Standing Against NYPA and LIPA

Both NYPA and LIPA allege that plaintiffs lack standing. Their attack on plaintiffs’ standing focuses exclusively on a failure to adequately allege injury. See Def. LIPA's Mot. to Dismiss 13-14, ECF No. 75-2; Def. NYPA's Mot. Dismiss 5-7 ECF No. 76-9.

Under the Supreme Court's standing jurisprudence, plaintiffs in environmental cases adequately allege sufficient injury for the purposes of standing when they claim "they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity." Friends of the Earth, Inc. v. Laidlaw Envir. Servs., Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) ). Plaintiffs’ complaint appears very cognizant of the need to plead standing. They devote an entire section of the complaint to a section entitled "standing" and quote from the Supreme Court's seminal Lujan decision to bolster their position. Compl. ¶¶ 476-77. The complaint, while not specifying how often plaintiffs visit Jones Beach or alleging a specific intent to return, contains sprinkled references to their interests in the affected area. For example, they state "[p]etitioners do not think their ocean views from the field should be obliterated in preparation for the study of visual impact of proposed power plants," id. ¶ 95, refer to the area as "our park," id. ¶ 139, say they have a "stated interest in preventing further development," id. ¶ 199, claim to be "beneficiaries of a public land trust," id. ¶ 237, and that "[t]he project poses harm to Plaintiff's (sic) aesthetic and recreational interests because it will cause changes averse (sic) to the character of the park," id. ¶ 257.

In analyzing standing in this case brought by pro se plaintiffs, the Court must construe the complaint liberally and hold the plaintiffs to "less stringent standards than formal pleadings drafted by lawyers." Boykin, 521 F.3d at 214 (internal quotation marks omitted) (quoting Erickson, 551 U.S. at 94, 127 S.Ct. 2197 ). When applying this more liberal construction to pro se plaintiffs’ pleadings herein, plaintiffs’ claims against NYPA and LIPA should not be dismissed for lack of standing.

C. Plaintiffs Fail to State a Claim under Federal Law

Under Federal Rule of Civil Procedure 12(b)(6), unless a claim presents plausible factual grounds upon which relief can be granted, it must be dismissed. Lynch v. City of New York, 952 F.3d 67, 74 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ). Claims brought pursuant to federal statutes which do not create private rights of action are subject to dismissal for failure to state a claim. See Fair v. Verizon Commc'n Inc., 621 Fed. Appx. 52, 53 (2d Cir. 2015) (summary order) (citing Republic of Iraq v. ABB AG, 768 F.3d 145, 171 (2d Cir. 2014) ). "Private rights of action to enforce federal laws must be created by Congress." Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). In looking for a private right of action, the analysis must include a determination of "whether [a statute] ... displays an intent to create not just a private right but a private remedy." Id. (citing Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 15, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) ). Courts look to the "text and structure" of a federal law when making this determination. George v. N.Y.C. Dept. of City Planning, 436 F.3d 102, 103 (2d Cir. 2006) (internal quotation marks omitted) (quoting Sandoval, 532 U.S. at 288, 121 S.Ct. 1511 ).

The federal statutes relied upon by plaintiffs do not provide for a private right of action. These federal statutes include, as far as the Court can tell, the CBRA, the LWCFA, the CZMA, NEPA, and the NHPA. Compl. ¶¶ 1-2. The Second Circuit has explicitly held that the CZMA does not provide a private right of action, see George, 436 F.3d at 103-04 (noting that its finding about the CZMA brings it in line with other circuits and district courts), and our sister courts and other circuits have found the same regarding the NHPA, see e.g., Cotz v. Gutierrez-Scaccetti, No. 19-CV-22075(MAS)(ZNQ), 2020 WL 1284755, at *5 (D.N.J. Mar. 18, 2020) (collecting cases finding no private right of action under the NHPA); Friends of Hamilton Grange v. Salazar, No. 08-CV-5220(DLC), 2009 WL 650262, at * 21 (S.D.N.Y. Mar. 12, 2009) (dismissing claims brought under the NHPA after finding that it does not provide for a private right of action), and the LWCFA, see e.g., Friends of Roeding Park v. City of Fresno, 848 F. Supp. 2d 1152, 1160 (E.D. Cal. 2012) (stating that it is "well-accepted" that there is no private right of action under the LWCFA). Several Circuits recognize that NEPA does not provide a private right of action. See e.g., Maiden Creek Assocs., L.P. v. U.S. Dep't of Transp., 823 F.3d 184, 189 (3d Cir. 2016) (noting the lack of a private right of action in NEPA); Karst Env't Educ. & Prot. Inc. v. E.P.A., 475 F.3d 1291, 1295 (D.C. Cir. 2007) (stating that challenges under NEPA must be brought pursuant to the APA because NEPA provides no private right of action). Although, as both the State defendants and BOEM point out, there does not appear to be any judicial authority discussing a private right of action under the CBRA, State Defs. Mot. to Dismiss 8, ECF No. 77; Def. BOEM's Mot. to Dismiss 18, ECF No. 82, the text of the statute itself does not support such a finding. See 16 U.S.C. § 3501 et. seq. The absence of a private right of action under all of these federal statutes requires dismissal of plaintiffs’ federal claims.

D. Plaintiffs’ Article 78 Petition and Remaining State Law Claims Should Be Remanded to State Court

The federal claims raised by plaintiffs fail for the reasons discussed supra , leaving only plaintiffs’ state law claims, including claims under New York Civil Practice Law and Rules ("C.P.L.R.") Article 78. Throughout their complaint and opposition to defendants’ motions, plaintiffs aver that they bring this action under C.P.L.R. Article 78. Compl. ¶ 2; Pl.’s Resp. to State Def. Mot. to Dismiss 4, ECF No. 86. Plaintiffs point to Article 78 as a mechanism which allows them to challenge the defendants’ actions without hindrance from the Eleventh Amendment or the lack of a private right of action under the federal statutes previously discussed. Pl.’s Resp. to State Def. Mot. to Dismiss 4, 14. An Article 78 is a state law proceeding to challenge the actions of state government agencies and officials. See C.P.L. R. § 7803.

Although a district court may exercise supplemental jurisdiction over related state law claims presented in an action, 28 U.S.C. § 1367(a), the court may decline to exercise supplemental jurisdiction once it has dismissed all claims over which it had original jurisdiction, id. § 1367(c)(3).¹³ Once all federal claims in a case are dismissed, the district court has discretion to remand an action to state court "upon a determination that retaining jurisdiction over the case would be inappropriate." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988).

A district court's discretion in this area is broad and when considering the exercise of supplemental jurisdiction, the Court should be guided by "factors such as judicial economy, convenience, fairness, and comity." Rodriguez v. City of New York, 535 F. Supp. 2d 436, 444 (S.D.N.Y. 2008) (internal quotation marks omitted) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1191 (2d Cir. 1996) ). When a case fails to present a significant federal interest, a district court may improperly exceed its discretion if it chooses to exercise supplemental jurisdiction. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 123 (2d Cir. 2006). Further, several courts in the Second Circuit suggest that a federal court may never properly exercise jurisdiction over Article 78 claims. See Morningside Supermarket Corp. v. New York State Dept. of Health, 432 F. Supp. 2d 334, 346 (S.D.N.Y. 2006) (collecting cases); Cartagena v. City of New York, 257 F. Supp. 2d 708, 710 (S.D.N.Y. 2003) (concluding that federal courts may never entertain Article 78 proceedings because such proceedings may only be brought in state Supreme Court).

Here, the Court should decline to exercise supplemental jurisdiction over all of plaintiffs’ remaining claims. This includes plaintiffs’ claims under Article 78. These claims should be remanded to state court. See Cohill, 484 U.S. at 357, 108 S.Ct. 614 ; see also Ortiz v. United Food & Commercial Workers Union, No. 14-CV-743(MKB), 2016 WL 4257348, at *3 (E.D.N.Y. 2016) (citing Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 640, 129 S.Ct. 1862, 173 L.Ed.2d 843 (2009) ) (remanding case to state court after declining to exercise supplemental jurisdiction over remaining state law claim). Plaintiffs’ claims related to SEQRA, Parkland Alienation, the state Tidal Wetlands Act, and for public nuisance are more properly heard in state court because they involve matters of state law, are of local importance, and are brought against state agencies and officials. This result strongly fosters "the principle of comity to States," a value favored by the Supreme Court. See Cohill, 484 U.S. at 352, 108 S.Ct. 614. The dismissal of BOEM and the federal law claims from the case eliminates the stated basis for removal and any federal interest. Therefore, the Court should remand this matter to state Supreme Court where it was originally filed.

CONCLUSION

Accordingly, I respectfully recommend that defendant BOEM's motion to dismiss this action without prejudice should be granted for lack of subject-matter jurisdiction and that the State defendants, NYPA, and LIPA's motions to dismiss should be granted to the extent that all of the federal law claims alleged against them should be dismissed. I further recommend that the Court should decline to exercise supplemental jurisdiction over the remaining state law claims, including the Article 78, SEQRA, SHPA, TWA, parkland alienation, and public nuisance claims, and that those claims should be remanded to New York State Supreme Court, Nassau County.

The Clerk of Court shall mail a copy of this Report and Recommendation to plaintiffs and shall note the mailing on the docket.¹⁴

FILING OF OBJECTIONS TO REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen days from service of this Report to file written objections. See Fed. R. Civ. P. 6. Such objections shall be filed with the Clerk of the Court. Any request for an extension of time to file objections must be made within the fourteen-day period. Failure to file a timely objection to this Report generally waives any further judicial review. Marcella v. Capital Dist. Physicians’ Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002) ; Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) ; see Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

SO ORDERED.