Opinion
03-CV-485S
August 27, 2003
DECISION AND ORDER
1. On August 19, 2003, this Court filed a Decision and Order granting in part and denying in part Plaintiffs' Motion for a Temporary Restraining Order.
2. Counsel for the parties appeared before this Court for a status conference on August 26, 2003. Counsel stated on the record that they had no objection to a conversion of the Temporary Restraining Order into a Preliminary Injunction.
3. Accordingly, this Court deems Plaintiffs' Motion for a Preliminary Injunction submitted and will now address the merits of that motion.
4. This Court's August 19, 2003 Decision and Order is hereby incorporated by reference. For the reasons set forth fully in that decision, this Court makes the following findings: Plaintiffs have established a threat of irreparable harm. Plaintiffs are likely to succeed on the merits of their claim that enforcement of New York Public Health Law § 1399-// ("the Statute") would unconstitutionally restrict the shipment and transportation of cigarettes from one tribe member to another tribe member on the reservation. Additionally, Plaintiffs are likely to succeed on the merits of their claim that the Statute violates tribal sovereignty by regulating the shipment and transportation of cigarettes by individuals located off of the reservation to tribe members located on the reservation. Therefore, this Court will preliminarily enjoin the State from enforcing the Statute with respect to those types of transactions.
However, Plaintiffs are unlikely to succeed on the merits of their claim that the Statute violates the Indian Commerce Clause. In addition, Plaintiffs are unlikely to succeed with respect to their claim that the Statute infringes upon tribal sovereignty by regulating the shipment and transportation of cigarettes by tribe members to non-tribe members. Plaintiffs are also unlikely to establish that the Statute is preempted by the FAAAA.
Lastly, this Court finds that Plaintiffs are not required to post a bond pursuant to Rule 65(c) of the Federal Rules of Civil Procedure because this case advances an important public interest. Further, with respect to the particular transactions being enjoined by this Court, Defendants have not shown that they will likely suffer harm absent the posting of a bond.
5. At the August 26, 2003 status conference, Plaintiffs' counsel indicated that he planned to file an Application for Judicial Notice regarding a possible amendment to the terms of this injunction. This Court notes that it may modify the terms of this injunction after resolving Plaintiffs' Application for Judicial Notice.
IT HEREBY IS ORDERED that Plaintiffs' Motion for a Preliminary Injunction (Docket No. 2) is GRANTED in part and DENIED in part.
FURTHER, that Defendants are enjoined from enforcing § 1399-//of the New York Public Health Law with respect to the shipment and transportation of cigarettes by Plaintiffs from the Cattaraugus Indian Reservation to enrolled members of the Seneca Indian Nation located on the Cattaraugus Indian Reservation.
FURTHER, that Defendants are enjoined from enforcing § 1399-//of the New York Public Health Law with respect to the shipment and transportation of cigarettes by any individual or business entity to the Cattaraugus Indian Reservation for receipt by Plaintiffs.
FURTHER, that Plaintiffs are not required to post a bond pursuant to Rule 65(c) of the Federal Rules of Civil Procedure.
FURTHER, that Plaintiffs shall file with the Clerk of the Court and serve their Application for Judicial Notice on or before Friday, September 5, 2003.
FURTHER, that Defendants shall file and serve a response to Plaintiffs' application on or before Friday, September 12, 2003.
FURTHER, that Plaintiffs shall file and serve any reply thereto on or before Wednesday, September 17, 2003.
SO ORDERED.