UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Construction Materials Recycling 

Association Issues and Education 

Fund, Inc., and New England 

Recycling, Inc.

v. Civil No. 08-cv-376-JD

Opinion No. 2009 DNH 011

Thomas Burack, Commissioner, New

Hampshire Department of Environmental

Services, et al.

O R D E R

The plaintiffs, Construction Materials Recycling Association

Issues and Education Fund, Inc. (“CMRAIEF”), and New England

Recycling, Inc. (“NER”), filed a three-count complaint against the

defendants, Thomas Burack, Commissioner of the New Hampshire

Department of Environmental Services (“DES”), and Kelly Ayotte,

Attorney General of the State of New Hampshire. The complaint

challenges the constitutionality of New Hampshire legislation

addressing the combustion of construction and demolition (“C & D”)

debris. The plaintiffs seek declaratory and injunctive relief,

damages under 42 U.S.C. § 1983, and attorney’s fees and costs. 

Before the court is the defendants’ motion to dismiss the complaint. 

The plaintiffs object. 

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1The defendants fail to cite to Fed. R. Civ. P. 12(b), or

any provision under 12(b) in support of their motion. Upon

reviewing their motion, however, the court agrees with the

plaintiffs that the defendants contend that the complaint fails

to state a claim upon which relief may be granted, pursuant to

12(b)(6).

2

Standard of Review1

In considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), the court assumes the truth of the well-pleaded

facts, taking them in the light most favorable to the non-moving

party. Thomas v. Rhode Island, 542 F.3d 944, 948 (1st Cir. 2008). 

Although a plaintiff need not provide detailed factual allegations to

survive a motion to dismiss, “a plaintiff’s obligation to provide the

grounds of his entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,

1964-65 (2007) (internal quotation marks and brackets omitted); see

also Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007); accord Thomas,

542 F.3d at 948. A plaintiff’s allegations, therefore, must

demonstrate “a plausible entitlement to relief,” Thomas, 542 F.3d at

948 (internal quotation marks omitted), and must “give the defendant

fair notice of what the claim is and the grounds upon which it

rests,” Erickson, 127 S. Ct. at 2200 (internal quotation marks and

ellipsis omitted).

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Background

The following facts are taken from the plaintiffs’ complaint. 

CMRAIEF, an Illinois corporation, is a national organization which

provides education and advocacy regarding the reuse of C and D

debris. NER is a Massachusetts corporation that recycles and resells

C & D debris.

Since July of 2003, a power plant in Hopkinton, New Hampshire

(“Hopkinton plant”) has used virgin wood and wood derived from C & D

debris (“C & D fuels”) to generate power. The Hopkinton plant began

relying more heavily upon C & D fuels since it cost much less than

virgin wood.

In 2005, the New Hampshire legislature enacted House Bill 517,

which established a committee to study C & D debris and the health

effects of its disposal, and temporarily barred the incineration of C

& D debris in the state (“the moratorium”) until July 1, 2006. In

2006, the legislature passed House Bill 1433 which extended the

moratorium until December 31, 2007. Each law contained an exception

for municipal waste combustors and incinerators that burned C & D

debris that had been operating since January of 2005. 

During the 2007 legislative session, the legislature passed

three laws that addressed C & D debris. House Bill 427, codified at

N.H. Rev. Stat. Ann. (“RSA”) 149-M:4, IV-a, created a new definition

for “construction and demolition debris,” which classified it as a

solid waste:

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“Construction and demolition debris” means non-putrescible

waste building materials and rubble which is solid waste

resulting from the construction, remodeling, repair or

demolition of structures or roads. The term includes, but

is not limited to, bricks, concrete and other masonry

materials, wood, wall coverings, plaster, dry wall,

plumbing, fixtures, non-asbestos insulation or roofing

shingles, asphaltic pavement, glass, plastics that are not

sealed in a manner that conceals other wastes, and

electrical wiring and components, incidental to any of the

above and containing no hazardous liquid or metals. . . .

In addition, the law created a new class of waste known as “certified

waste-derived product,” which is defined as “a constituent of solid

waste which is no longer regulated as a solid waste when certified by

the department [of environmental services] to be recyclable for its

original use or alternate uses . . . .” RSA 149-M:4, II-a. The law

also prohibited the DES from certifying the wood component of C & D

debris as a “certified waste-derived product” that could be

combusted. RSA 149-M:9, XIV.

House Bill 428, codified at RSA 125-C:10-c, provided, in

pertinent part, that “no person shall combust the wood component of

construction and demolition debris, as defined in N.H. RSA 149-M:4,

IV-a, or any mixture or derivation from said component.” The law

provided for certain exceptions for the “incidental combustion” of

such materials by municipal incinerators and waste combustors, and

exempted the “incidental combustion” of untreated wood at any

municipal transfer station until January 1, 2011. RSA 125-C:10-c.

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2“‘Biomass fuels’ means plant-derived fuel including clean

and untreated wood such as brush, stumps, lumber ends and

trimmings, wood pallets, bark, wood chips or pellets, shavings,

sawdust and slash, agricultural crops, biogas, or liquid

biofuels, but shall exclude any materials derived in whole or in

part from construction and demolition debris.” RSA 362-F:2, II.

3Including the moratorium

5

House Bill 873, codified at RSA 362-F:2, II, mandated the use of

renewable fuels in the production of energy, and included a list,

with definitions, of acceptable types of renewable fuels, such as

“Biomass fuels.” C & D debris was not included in the list of

acceptable renewable fuels and was expressly excluded from the

definition of “Biomass fuels.”2

Discussion

The plaintiffs claim that the above laws3 (“C & D legislation”),

which collectively ban the combustion of C & D debris, violate the

Commerce Clause and the Privileges and Immunities Clause of the

federal constitution. The plaintiffs also contend that regulation of

C & D debris is preempted by the Solid Waste Disposal Act, the

Resource Conservation and Recovery Act (“RCRA”), and federal

regulations. The defendants seek dismissal of the plaintiffs’

complaint in its entirety on the grounds that: (1) the legislation

does not violate the Commerce Clause, (2) the plaintiffs do not have

standing to challenge the constitutionality of the legislation under

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the Privileges and Immunities Clause, (3) the legislation is not

preempted by federal law, (4) the plaintiffs failed to state claims

against Commissioner Burack or Attorney General Ayotte in their

individual or official capacities under 42 U.S.C. § 1983, and (5) the

plaintiffs’ claims regarding the expired moratorium are barred by the

Eleventh Amendment.

I. Commerce Clause

The plaintiffs contend that the C & D legislation violates the

Commerce Clause because it discriminates, in both purpose and effect,

against C & D fuels in favor of the New Hampshire virgin wood

industry, places an impermissible and unreasonable burden on commerce

“between New Hampshire and other states” by “precluding the market”

for C & D fuels, and places restrictions on citizens of other states

which are not placed on citizens of New Hampshire. Plaintiffs’

Complaint ¶ 48. The defendants argue that the legislation does not

violate the Commerce Clause because: (1) it does not discriminate

between public versus private incinerators, (2) it is not

discriminatory in effect because the ban applies equally to in-state

and out-of-state C & D debris-producers, (3) it has a

nondiscriminatory purpose - to protect the environment and the health

of New Hampshire citizens, and (4) any burden on interstate commerce

imposed by the legislation is not excessive in relation to its public

health benefits.

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The Commerce Clause provides, in pertinent part, that “[t]he

Congress shall have power . . . [t]o regulate Commerce . . . among

the several States.” U.S. Const. Art. I, § 8, cl. 3. Through

negative implication, the dormant commerce clause restricts the

authority of states to regulate commerce, even in the absence of

Congressional action. Kassel v. Consolidated Freightways Corp., 450

U.S. 662, 689 (1981). Under a dormant commerce clause analysis, the

court asks “whether a challenged law discriminates against interstate

commerce.” Dep’t of Revenue v. Davis, 128 S. Ct. 1801, 1808 (U.S.

2008); see Wyoming v. Oklahoma, 502 U.S. 437, 454 (1992) (“This

‘negative’ aspect of the Commerce Clause prohibits economic

protectionism - that is, regulatory measures designed to benefit instate economic interests by burdening out-of-state competitors.”).

 If the law “discriminates against interstate commerce on its

face, in purpose, or in effect,” Cherry Hill Vineyard, LLC v.

Baldacci, 505 F.3d 28, 33 (1st Cir. 2007), it is “virtually per se

invalid” unless “it advances a legitimate local purpose that cannot

be adequately served by reasonable nondiscriminatory alternatives,”

Davis, 128 S. Ct. at 1808 (internal quotation marks and citations

omitted). If the legislation does not discriminate against

interstate commerce, and “effectuate[s] a legitimate local public

interest,” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970), it

“will be upheld unless the burden imposed on interstate commerce is

clearly excessive in relation to the putative local benefits,” Davis,

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4To the extent the plaintiffs’ complaint asserts such a

claim, the defendants’ motion to dismiss is granted as to this

issue, given the plaintiffs’ concession.

5The parties agree that the laws are not facially

discriminatory against out-of-state interests. See Plaintiffs’

Obj., at 2. Rather, the plaintiffs claim only that the laws have

a discriminatory effect and purpose.

8

128 S. Ct. at 1808 (quoting Pike, 397 U.S. at 142 (internal brackets

omitted)). 

1. Public Versus Private Incinerators

The defendants cite United Haulers Association v. OneidaHerkimer Solid Waste Management Authority, 127 S. Ct. 1786 (2007),

and argue that the C & D legislation does not discriminate between

municipal versus private incinerators. United Haulers, 127 S. Ct. at

1797 (holding that law which benefits the state, “while treating all

private [entities] exactly the same” does not constitute

discrimination). The plaintiffs, however, represent that they do not

assert a claim of discrimination based upon disparate treatment

between public and private incinerators.4 See Plaintiffs’ Objection

to Defendants’ Motion to Dismiss (“Plaintiffs’ Obj.”), at 2. The

court, therefore, need not address this issue. 

2. Discriminatory Effect5

The plaintiffs claim that the ban impedes the importation of C &

D fuels into New Hampshire resulting in increased business for the

New Hampshire virgin wood industry. Therefore, the plaintiffs

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conclude, the C & D legislation discriminates between out-of-state C

& D fuel-producers in favor of the in-state virgin wood industry. 

The defendants argue that the ban is not discriminatory in effect

because it applies equally to in-state and out-of-state C & D fuelproducers. The defendants’ argument, however, assumes that the

proper comparison is between in-state C & D fuel-producers versus

out-of-state C & D fuel-producers, while the plaintiffs assert

discrimination which favors New Hampshire virgin wood producers.

The Supreme Court has suggested that when determining whether a

law is discriminatory under the dormant commerce clause, a

“comparison of substantially similar entities” is required. Davis,

128 S.Ct. at 1811 (quoting United Haulers, 127 S. Ct. at 1795)

(internal quotation marks omitted); General Motors Corporation v.

Tracy, 519 U.S. 278, 299-300 (1997); cf. Cherry Hill Vineyard, 505

F.3d at 37 (citing Tracy, 519 U.S. at 299). Entities are considered

“substantially similar” if they generate similar products which

compete within the same market. See Tracy, 519 U.S. at 299-300. 

The plaintiffs allege that wood derived from C & D debris and

virgin wood compete for use as fuel by power plants and that both

industries rely heavily upon this market for business. The court

must accept the allegation as true for purposes of the defendants’

motion to dismiss. C & D fuel-producers and the virgin wood industry

are therefore similarly situated and may be compared to one another

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to determine whether the plaintiffs’ complaint sufficiently alleges

that the C & D legislation is discriminatory.

Legislation is discriminatory in effect when it affords

“differential treatment of in-state and out-of-state economic

interests that benefits the former and burdens the latter.” Cherry

Hill Vineyard, 505 F.3d at 33 (quoting Oregon Waste Sys. v. Dep’t of

Envtl. Quality, 511 U.S. 93, 99 (1994)). The plaintiffs carry the

burden of establishing discrimination. Cherry Hill Vineyard, 505

F.3d at 33. 

Accepting the plaintiffs’ allegations as true, the plaintiffs

have met their burden. Their complaint alleges that as a result of

the C & D legislation, the efforts of C & D fuel-producers to import

their product into the state are “imped[ed],” Plaintiffs’ Complaint ¶

2, while the in-state virgin wood industry is directly benefitted. 

Although the plaintiffs offer no further detail regarding the extent

of the alleged impediment, at this stage of the proceedings, the

plaintiffs’ allegations are sufficient to support their claim that

the C & D legislation has a discriminatory effect.

3. Discriminatory Purpose

The plaintiffs allege that the discriminatory purposes of the C

& D legislation are to protect the “failing New Hampshire virgin wood

industry” at the expense of C & D fuel-producers and to prevent the

state from becoming a “dumping ground” for C & D debris. Plaintiffs’

Complaint ¶ 2. The defendants argue that the primary purpose of the

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legislation was to protect the health and safety of New Hampshire

citizens, and the health of the environment. 

The purpose of legislation is discerned by examining the

legislation as a whole, Alliance of Automobile Manufacturers v.

Gwadosky, 430 F.3d 30, 37 (1st Cir. 2005), and the plain meaning of

the legislation’s words, “enlightened by their context and the

contemporaneous legislative history,” Edwards v. Aguillard, 482 U.S.

578, 594 (1987). The court may also consider circumstantial evidence

such as “statements of intent . . . from official legislative

sources.” Gwadosky, 430 F.3d at 39. The plaintiffs bear the burden

of establishing a discriminatory purpose. Id. at 37. 

The language effectuating the C & D debris combustion ban, while

located throughout several statutes, is found primarily under Title

X, Public Health, Chapter 125-C, Air Pollution Control. See RSA 125-

C:10-c. The purpose of Chapter 125-C is, in pertinent part: “to

achieve and maintain a reasonable degree of purity of the air

resources of the state so as to promote the public health . . . .” 

RSA 125-C:1. The definition of C & D debris is also found under

Title X, at Chapter 149-M, Solid Waste Management. See RSA 149-M:4,

IV-a. The purpose of Chapter 149-M is, in pertinent part: “to

protect human health, to preserve the natural environment, and to

conserve precious and dwindling natural resources through the proper

and integrated management of solid waste.” RSA 149-M:1. Thus, on

the surface, the purpose of the legislation appears to be nonCase 1:08-cv-00376-PB Document 11 Filed 01/27/09 Page 11 of 21
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discriminatory, and comports with the defendants’ claims that the

legislation is meant to protect public health and the environment.

The plaintiffs, however, allege that circumstantial evidence

shows that a more sinister purpose hides behind the broad statements

of purpose in the statutes. They claim that a committee created in

2005 by the General Court to study C & D debris issued a report in

2006 which concluded that the wood component of C & D debris could be

safely combusted to generate electricity, provided the proper

emission controls were utilized. The plaintiffs further allege that

the report cautioned that when determining whether the state could

use C & D debris as fuel, it should consider “the risk of undermining

the current virgin wood industry.” Plaintiffs’ Complaint ¶ 44. The

plaintiffs also allege that Commissioner Burack stated at a meeting

of the DES C & D task force that the reason for the C & D debris

combustion ban was to promote the use of New Hampshire forest

products. Accepting these allegations as true, as the court must,

the plaintiffs have sufficiently alleged that the C & D legislation

has a discriminatory purpose to avoid dismissal.

4. Excessive Burden

Given that the plaintiffs have sufficiently alleged that the C &

D legislation has both a discriminatory effect and discriminatory

purpose, the court need not address the defendants’ argument that the

legislation is “clearly not excessive” in relation to its purported

purpose to protect public health. 

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II. Privileges and Immunities Clause

Count Two of the plaintiffs’ complaint alleges that the C & D

legislation violates the Privileges and Immunities Clause because it

imposes restrictions on out-of-state citizens without imposing

restrictions on in-state citizens, and bans the combustion of C & D

debris derived out-of-state but permits C & D debris combustion by

in-state entities. The defendants argue that the plaintiffs are not

entitled to the protection of the Privileges and Immunities Clause

because it does not apply to corporations. The plaintiffs counter

that CMRAIEF has standing to sue because it represents individuals.

The Privileges and Immunities Clause provides that “The Citizens

of each State shall be entitled to all Privileges and Immunities of

Citizens in the several States.” U.S. Const. art. IV, § 2, cl. 1. 

It is well-settled that corporations are not citizens within the

meaning of the Privileges and Immunities Clause. Western & Southern

Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656 (1981). 

Neither the Supreme Court nor the First Circuit have recognized any

exceptions to this principle.

The plaintiffs cite Hunt v. Washington State Apple Advertising

Commission, 432 U.S. 333 (1977) for the proposition that if a

corporation is made up, at least in part, of individuals who would

have standing to sue, the corporation has standing to sue on their

behalf. Hunt, however, addressed the prerequisites of associational

standing under Article III; it did not address the “citizen”

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requirement of the Privileges and Immunities Clause and is therefore

inapplicable to this case. See 432 U.S. at 342. NER and CMRAIEF are

both corporations and therefore cannot invoke the protection of the

Privileges and Immunities Clause. The defendants’ motion to dismiss

is therefore granted as to the plaintiffs’ Privileges and Immunities

Clause claim.

III. Preemption

Count Three of the plaintiffs’ complaint claims that regulation

of C & D debris is preempted by the Solid Waste Disposal Act, RCRA

(which amended the Solid Waste Disposal Act), and federal

regulations. More specifically, the plaintiffs contend that the

principle of conflict preemption precludes New Hampshire’s regulation

of C & D debris.

Under the principle of conflict preemption, state regulations

are preempted if they actually conflict with federal regulations,

making “compliance with both state and federal statutes and

regulations . . . a physical impossibility, or when compliance with

the state statute would frustrate the purposes of the federal

scheme.” SPGGC, LLC v. Ayotte, 488 F.3d 525, 531 (1st Cir. 2007); see

also Hines v. Davidowitz, 312 U.S. 52, 67 (1941). General

expressions of policy in federal law, however, are unlikely to

support conflict preemption. Fitzgerald v. Harris, 549 F.3d 46, 53

(1st Cir. 2008).

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The plaintiffs’ complaint cites to 42 U.S.C. §§ 8801 and 8804

and alleges that the “promotion and control of biomass - of which C &

D fuels are one” is a national objective whose oversight lies with

federal agencies. Plaintiffs’ Complaint ¶¶ 31-32. The complaint

references the Solid Waste Disposal Act, which the plaintiffs claim

limited the delegation of regulatory authority regarding waste to the

states, and required that any state regulation adhere to the broader

federal policy. The plaintiffs also cite RCRA, briefly describing

its purpose and provisions. Beyond these terse references to general

federal policies, the plaintiffs fail to allege how the C & D

legislation conflicts with federal law. The plaintiffs have failed,

therefore, to sufficiently allege a preemption claim.

IV. Section 1983 Claims

The plaintiffs’ complaint alleges § 1983 claims against

Commissioner Burack and Attorney General Ayotte. The defendants

argue that (1) CMRAIEF does not have standing to bring a claim under

§ 1983, (2) the complaint fails to make specific allegations against

Commissioner Burack and Attorney General Ayotte in their individual

capacities, (3) the complaint fails to state a claim against

Commissioner Burack and Attorney General Ayotte in their official

capacities, and (4) the plaintiffs’ claims regarding the moratorium

are barred by sovereign immunity.

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6The defendants argue only that the plaintiffs’ cannot

satisfy the third factor.

16

1. Standing

The defendants argue that CMRAIEF does not have standing to

bring a § 1983 claim on behalf of its members. CMRAIEF alleges that

it represents “individuals and companies involved in the reuse of

construction and demolition related materials,” Plaintiffs’ Complaint

¶ 6, and argues that it meets the requirements for associational

standing.

An association may sue “on behalf of its members where [1] the

members would have standing to sue themselves, [2] the interests are

germane to the association’s purpose, and [3] ‘neither the claim

asserted nor the relief requested requires the participation of

individual members in the lawsuit.’”6 R.I. Bhd. of Corr. Officers v.

Rhode Island, 357 F.3d 42, 48 (1st Cir. 2004) (quoting Hunt, 432 U.S.

at 343). An association’s demand for damages ordinarily requires the

participation of its members, thereby depriving it of associational

standing based upon the third factor. Corr. Officers, 357 F.3d at

48. Where an association also seeks declarative or injunctive relief

which, if granted, would benefit its members, however, it satisfies

the third factor and may maintain its standing. Id.

In addition to damages, the plaintiffs seek declaratory and

injunctive relief. A declaration that the C & D legislation is

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unconstitutional, or an injunction prohibiting its enforcement, would

benefit the members of CMRAIEF without their participation. CMRAIEF,

therefore, has standing to maintain its suit under § 1983 on behalf

of its members.

2. Individual Capacities

The defendants argue that the plaintiffs’ complaint fails to

make any specific allegations against Commissioner Burack or Attorney

General Ayotte in their individual capacities and that the

plaintiffs’ claim for damages under § 1983 should be dismissed. The

plaintiffs object, arguing that the complaint alleges that Burack and

Ayotte are liable as supervisors.

Generally, a plaintiff cannot maintain a claim against a state

officer individually under § 1983 absent some allegation that he was

personally involved in the alleged deprivation of rights. See

Kentucky v. Graham, 473 U.S. 159, 166 (1985). A supervisor, however,

may be subject to liability “if he formulates a policy or engages in

a practice that leads to a civil rights violation” committed by his

subordinate. Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998). 

In such a case, a supervisor is liable where “(1) [his] subordinate’s

actions violated a clearly established constitutional right, and (2)

it was clearly established that [the] supervisor would be liable for

constitutional violations perpetrated by his subordinates in that

context.” Id. at 6; see also Bisbal-Ramos v. City of Mayaguez, 467

F.3d 16, 24 (1st Cir. 2006); Velez-Rivera v. Agosto-Alicea, 437 F.3d

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145, 156 (1st Cir. 2006) (“In § 1983 cases, ‘supervisors are not

automatically liable for the misconduct of those under their command. 

A plaintiff must show an affirmative link between the subordinate

officer and the supervisor, whether through direct participation or

through conduct that amounts to condonation or tacit

authorization.’”) (quoting Carmona v. Toledo, 215 F.3d 124, 132 (1st

Cir. 2000)).

The plaintiffs fail to allege any conduct by Commissioner Burack

or Attorney General Ayotte that establishes (1) that either was

personally involved in the alleged deprivation of rights, or (2)

supervisory liability. The only conduct alleged in the complaint

concerns Commissioner Burack’s statement to the DES C & D task force

that the purpose of the C & D legislation was to promote use of New

Hampshire virgin wood. The plaintiffs fail, however, to explain how

this statement caused a deprivation of their rights. The plaintiffs’

claim for damages under § 1983 against Commissioner Burack and

Attorney General Ayotte in their individual capacities is therefore

dismissed.

3. Official Capacities

The defendants also argue that the plaintiffs have failed to

sufficiently allege facts to support their § 1983 claim against

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7The court notes that the plaintiffs, by their own

admission, Plaintiffs’ Obj., at 7, do not seek (nor could they)

damages against the defendants in their official capacities. See

Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24

(1997) (“State officers in their official capacities, like States

themselves, are not amenable to suit for damages under § 1983.”);

Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991).

8The defendants do not dispute that a claim for violation of

the Commerce Clause is actionable under § 1983.

19

Commissioner Burack and Attorney General Ayotte in their official

capacities.7

The plaintiffs are suing the defendants in their official

capacities as Commissioner of the DES and Attorney General for the

State of New Hampshire. The complaint alleges that the defendants

are state public officials responsible for enforcing the

unconstitutional statutes. They seek a declaratory judgment that the

C & D legislation violates the Commerce Clause and an injunction

against the enforcement of the legislation. The plaintiffs’

allegations sufficiently state a claim under § 1983 against the

defendants in their official capacities.8 

4. Sovereign Immunity

The defendants argue that the plaintiffs’ claim against them in

their official capacities challenging the moratorium, which expired

in December of 2007, is barred by sovereign immunity. 

“Unless a State has waived its Eleventh Amendment immunity or

Congress has overridden it, . . . a State cannot be sued directly in

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its own name regardless of the relief sought.” Graham, 473 U.S. at

167, n. 14. “Thus, implementation of state policy . . . may be

reached in federal court only because official-capacity actions for

prospective relief are not treated as actions against the State.” 

Id. Accordingly, “the Eleventh Amendment does not bar a citizen from

seeking injunctive or declaratory relief against a state official ‘to

conform his future conduct to the requirements of federal law.’” 

Brunken v. Lance, 807 F.2d 1325, 1329 (7th Cir. 1986) (quoting Quern

v. Jordan, 440 U.S. 332, 337 (1979) (internal brackets omitted);

Edelman v. Jordan, 415 U.S. 651, 677 (1974) (“[In] a § 1983 action, .

. . a federal court’s remedial power, consistent with the Eleventh

Amendment, is necessarily limited to prospective injunctive relief,

and may not include a retroactive award which requires the payment of

funds from the state treasury.”) (internal citation omitted). A

plaintiff seeking declaratory relief under this framework, however,

must allege a “continuing violation of federal law.” Green v.

Mansour, 474 U.S. 64, 68 (1985) (“[While] [r]emedies designed to end

a continuing violation of federal law are necessary to vindicate the

federal interest in assuring the supremacy of that law[,] . . .

compensatory or deterrence interests are insufficient to overcome the

dictates of the Eleventh Amendment.”) (internal citations omitted).

Given the court’s dismissal of the plaintiffs’ § 1983 claim for

damages, the only remaining relief which the plaintiffs seek with

regard to the moratorium is a declaratory judgment that it was

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unconstitutional because it violated the Commerce Clause. The

moratorium, however, expired in December of 2007. The plaintiffs do

not allege that the moratorium presents an ongoing violation of the

Constitution. Absent such a claim, declaratory relief is barred by

the Eleventh Amendment. The plaintiffs’ claims against the

defendants concerning the moratorium are therefore dismissed.

Conclusion

For the foregoing reasons, and to the extent described above,

the defendants’ motion to dismiss (document no. 7) is granted in part

and denied in part. The defendants’ motion is granted to the extent

it seeks dismissal of the plaintiffs’ claims against the defendants

in their individual capacities under § 1983, granted as to Counts II

and III of the plaintiffs’ complaint (document no. 1), and granted in

part as to Count I, to the extent it seeks dismissal of the

plaintiffs’ claims regarding the moratorium. The remainder of the

defendants’ motion is denied without prejudice.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

January 27, 2009

cc: Mary E. Maloney, Esquire

Frank P. Spinella, Jr., Esquire

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