In this CPLR Articles 30 and 63 proceeding, plaintiffs seek (1) a declaration as to the rights and relations between the parties, (2) to obtain injunctive relief relating to a guidance document issued on November 19, 2013 by the New York State Department of Environmental Conservation, hereinafter referred to as Department, and (3) to declare certain provisions of the guidance document null and void as a violation of the New York State Constitution and ECL section 13-0309(12).

Currently there are two motions before this Court for determination. The first is a motion by the plaintiffs seeking a preliminary injunction to restrain the defendants from authorizing the release to permit holders in the New York Atlantic Ocean Surf Clam/Ocean Quahog Fishery of more than 319 cage tags. The second is a motion by the defendants to dismiss the complaint for failure to add a necessary party.

The plaintiffs are participants in the Atlantic Ocean Surf Clam/ Ocean Quahog Fishery, hereinafter referred to as the Fishery. Plaintiffs Bay Head, Inc., Doxsee Sea Clam Company Inc., Winter Harbor Brands, Inc., SMJ Products Corp., and Verbeke, Inc., are all companies involved in the Fishery. Plaintiff Coalition of Long Island Surf Clammers, hereinafter referred to as the Coalition, is an industry advocacy group and is comprised of 15 out of the 17 companies that harvest Atlantic Ocean surf clams. The Fishery is a closed fishery which was formed in 1977. It has been closed to new entry since 1993 by Department of Environmental Conservation, hereinafter DEC, regulation 6 NYCRR Part 43-3 and only allows companies that have historically been involved in the Fishery to harvest surf clams from the Atlantic Ocean for consumption purposes. 6 NYCRR 43-2.6 sets out harvest restrictions and Individual Fishing Quotas or IFQs. In 2010 the Fishery contained 22 vessels who each received an IFQ of the annually allotted surf clams. The annual harvest limit is set out in 6 NYCRR 43-2.6(a) and requires the DEC to announce that limit by "November 15th of the year preceding its effective date of January 1... by written directive of the commissioner or commissioner's designee and written notice of any such directive shall be provided to all permit holders." 6 NYCRR 43-2.6(b) states:

Effective January 1, 2010, an Individual Fishing Quota system (IFQ) shall be established which will allocate to each eligible surfclam vessel an annual individual fishing quota. The individual fishing quota shall be determined annually based on the annual harvest limit referenced in subdivision (a) of this section divided equally by the number of eligible vessels authorized to participate in the Atlantic Ocean surfclam fishery. The IFQ assigned to an eligible surfclam vessel shall be nontransferable and each vessel can only be used to catch one quota allocation. The IFQ will expire on December 31 of each year and any unused quota not taken prior to the end of the year [*2]will not roll over into the next year but will remain uncaught.

In 2010 plaintiff Coalition brought a request to the State Legislature seeking the authorization of cooperative harvesting and consolidation of IFQs within a single company. The legislature approved the requests for cooperative harvesting and consolidation of IFQs under ECL 13-0309(15) and (16) with a "sunset" provision that was to become effective on December 31, 2013, at which time these sections of the statute would be deemed repealed. Prior to the amendment of ECL 13-0309(15) and (16), plaintiff Bay Head had three vessels within the Fishery and was allocated 3 IFQs; plaintiff Doxsee had two vessels within the Fishery and was allocated 2 IFQs; and plaintiff Winter Harbor had three vessels within the Fishery and was allocated 3 IFQs. Subsequent to the amendment, plaintiffs Bay Head, Doxsee and Winter Harbor each consolidated their IFQs onto 1 vessel each. In late November 2013 the DEC sent out a document entitled the "New York State Atlantic Ocean Surfclam Fishery- 2014 Harvest and Management Provisions." The plaintiffs refer to this document as "guidance". This document contained seven provisions: (1) a statement that the holder of an IFQ must complete and submit a "Declaration for IFQ Assigned to Vessels Form"; (2) setting the annual harvest limit for 2014 at 225,000 industry standard bushels with each eligible vessel being assigned an IFQ equal to 13,235 industry standard bushels or 413 standard cages; (3) reminding the members of the Fishery that on December 31, 2013 the amendments to ECL 13-0309(15) and (16) would sunset unless extended, with cooperative harvesting and consolidation no longer being allowed causing all vessels in the Fishery to be assigned a single IFQ, and stating that for 2014 there are 17 eligible vessels in the Fishery; (4) reminder about cage tags and to fill out a "Cage Tag Order Form for 2014"; (5) statement as to special conditions that must be followed by permit holders to commence harvesting until appropriate cage tags for vessels are received; (6) reminder that owners or lessors of vessels assigned an IFQ must file accurate and complete harvesting reports even if they do not fish; and (7) reminder that all vessels with VMS should keep it powered on at all times and use it to declare state trips. Provisions (2) and (3) are the aspects of this document that the plaintiffs are objecting to due to the fact that they reduce the number of cage tags issued to Bay Head, Doxsee and Winter Harbor based upon the DEC only allotting them 1 IFQ each.

The plaintiffs then filed this Article 30 and 63 proceeding seeking, (1) a declaration as to the rights and relations between the parties, (2) injunctive relief relating to the "guidance" document issued by the DEC, and (3) a declaration that certain provisions of the "guidance" document are null and void. The defendants moved to dismiss the complaint for failure to add necessary parties, ie. Ocean Fresh Sea Clams, Inc. and Shellfish Inc., the only other two members of the Fishery that would have a reduced allocation of cage tags if the Court were to grant the relief requested by the plaintiffs.

In order to prevail on a motion for a preliminary injunction, the movant must demonstrate, by clear and convincing evidence, (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that a balancing of [*3]the equities favors the movant's position (see, generally,Blinds and Carpet Gallery, Inc. v E.E.M. Realty, Inc., 82 AD3d 691, 917 NYS2d 680 [2d Dept 2011]). The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual (see Dixon v Malouf, 61 AD3d 630, 875 NYS2d 918 [2d Dept 2009] Ruiz v Meloney, 26 AD3d 485 [2d Dept 2006] Ying Fung Moy v Hohi Umeki, 10 AD3d 604 [2d Dept 2004]). The decision to grant or deny a preliminary injunction rests in the sound discretion of the Court (see Dixon v Malouf, supra; Ruiz v Meloney, supra). Further, preliminary injunctive relief is a drastic remedy that will not be granted unless the movant establishes a clear right to such relief which is plain from the undisputed facts (Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348 [2d Dept 1998] see Hoeffner v John F. Frank, Inc., 302 AD2d 428 [2d Dept 2000] Peterson v Corbin, 275 AD2d 35 [2d Dept 2000] Nalitt v City of New York, 138 AD2d 580 [2d Dept 1988]).

The Coalition, by letter dated July 7, 2011, asked Governor Cuomo to sign the bill amending ECL 13-0309(15) and (16). The Coalition through its attorney acknowledged that "at present, regulations of the Department of Environmental Conservation require that any holder of a permit to harvest surf clams from the Atlantic Ocean must dedicate a separate vessel to the harvest of that permit for what amounts to an entire season." Subsequent to the passage of the amendment, plaintiffs Doxsee, Winter Harbor and Bay Head each sent a letter to the DEC electing to consolidate their entire IFQs onto one vessel each. In those letters each company stated that they understood that the vessels which consolidated their IFQs "are not eligible for use in the Atlantic Ocean Surf Clam Fishery effective August 7, or until such time as they are, respectively, properly identified to the Department for use on another Atlantic Ocean Surf Clam permit." Upon the sunset date in the amended ECL 13-0309(15) and (16) these sections reverted to the language in effect before the amendment which did not include cooperative harvesting and consolidation of IFQs within a single company.

Based upon a review of the papers before this Court the plaintiffs have failed to establish the likelihood of ultimate success on the merits. Significant to this conclusion the Court notes that the coalition acknowledged that the law prior to amendment required "that any holder of a permit to harvest surf clams from the Atlantic Ocean must dedicate a separate vessel to the harvest of that permit" and the plaintiffs Bay Head, Doxsee, and Winter Harbor, subsequent to the amendment, stated that they understood that the vessels which consolidated their IFQs "are not eligible for use in the Atlantic Ocean Surf Clam Fishery effective August 7, or until such time as they are, respectively, properly identified to the Department for use on another Atlantic Ocean Surf Clam permit." The Court is also satisfied that the DEC's "guidance" document merely followed the requirements of 6 NYCRR 43-2.6(a) and (b) which set out how IFQs would be allocated and required the DEC to announce the annual harvest limit by "November 15th of the year preceding its effective date of January 1... by written directive of the commissioner or commissioner's designee and written notice of any such directive shall be provided to all permit holders." Therefore the motion for a preliminary injunction is denied.

All other relief sought by plaintiffs is also denied.

Although the failure to join a necessary party may be raised at any time by the parties or the court (see, Sawicki v. County of Suffolk, 4 AD3d 465, 466, 771 N.Y.S.2d 672, 672 [2d Dept 2004], citing City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475, 399 N.E.2d 538, 423 N.Y.S.2d 651 [1979]), dismissal is not warranted where the interests of the named party and the nonjoined party are so intertwined that there is virtually no prejudice to the nonjoined party (see, Sawicki v. County of Suffolk, supra, citing, Matter of 27th St. Block Assn. v Dormitory Auth. of State of NY, 302 AD2d 155, 752 N.Y.S.2d 277 [2002] Matter of Doner v Comptroller of State of NY, 262 AD2d 750, 691 N.Y.S.2d 659 [1999] Matter of Awad v State Educ. Dept. of NY, 240 AD2d 923, 658 N.Y.S.2d 755 [1997]). In this action the unnamed parties are in the same position as plaintiffs SMJ Products Corp. and Verebeke, Inc., who each have historically been entitled to 1 IFQ. Further, the denial of the preliminary injunction requested by the plaintiffs causes no change of circumstance for the unnamed parties equitably. Therefore, the defendant's motion to dismiss for failure to add a necessary party is denied as moot.

The foregoing shall constitute the decision and Order of this Court.

Dated: April 17, 2014_______________________________________

HON. JOSEPH A. SANTORELLI

J.S.C.

XFINAL DISPOSITIONNON-FINAL DISPOSITION