Silva v. Farrish ( 2022 )


Menu:
  • 21-616-cv
    Silva v. Farrish
    In the
    United States Court of Appeals
    FOR THE SECOND CIRCUIT
    AUGUST TERM 2021
    No. 21-0616
    DAVID T. SILVA, GERROD T. SMITH, JONATHAN K. SMITH,
    MEMBERS OF THE SHINNECOCK INDIAN NATION,
    Plaintiffs-Appellants,
    v.
    BRIAN FARRISH, JAMIE GREENWOOD, EVAN LACZI, NEW YORK STATE
    DEPARTMENT OF ENVIRONMENTAL CONSERVATION, SUFFOLK
    COUNTY DISTRICT ATTORNEY’S OFFICE, BASSIL SEGGOS,
    Defendants-Appellees.
    On Appeal from the United States District Court
    for the Eastern District of New York
    ARGUED: MARCH 15, 2022
    DECIDED: AUGUST 25, 2022
    Before:            JACOBS, WESLEY, and MENASHI, Circuit Judges.
    Plaintiffs-Appellants Gerrod Smith, Jonathan Smith, and David
    Silva are members of the Shinnecock Indian Nation and assert an
    ancestral right to fish in the Shinnecock Bay without interference.
    Over the past decade, however, state officials have ticketed and
    prosecuted them for violating state fishing laws. The plaintiffs sought
    declaratory and injunctive relief to prevent the further enforcement of
    those fishing regulations as well as damages based on allegations of
    discrimination in past enforcement. The district court granted
    summary judgment to the defendants. We hold that Ex parte Young
    applies to the plaintiffs’ fishing-rights claims against the New York
    State Department of Environmental Conservation (“DEC”) officials—
    but not against the DEC itself—because the plaintiffs allege an
    ongoing violation of federal law and seek prospective relief against
    state officials. We also hold that the plaintiffs have Article III standing
    to seek prospective relief and that Younger abstention no longer bars
    Silva from seeking prospective relief because his criminal
    proceedings have ended. We therefore conclude that the district court
    erred in granting summary judgment to the DEC officials on the
    plaintiffs’ claims for declaratory and injunctive relief. The district
    court properly granted summary judgment on the discrimination
    claims because there is no evidence in the record that would permit
    an inference of discriminatory intent. We affirm in part and vacate in
    part the judgment of the district court and remand for further
    proceedings.
    SCOTT M. MOORE, Moore International Law PLLC, for
    Plaintiffs-Appellants.
    ARI SAVITZKY, Assistant Solicitor General (Letitia James,
    Attorney General, Barbara D. Underwood, Solicitor
    General, Steven C. Wu, Deputy Solicitor General, on the
    brief), for Defendants-Appellees New York State Department
    2
    of Environmental Conservation, Brian Farrish, Evan Laczi,
    and Basil Seggos.
    BRIAN C. MITCHELL, Assistant County Attorney (Dennis
    M. Cohen, Suffolk County Attorney, on the brief), for
    Defendants-Appellees Suffolk County District Attorney’s
    Office and Jamie Greenwood.
    MENASHI, Circuit Judge:
    Plaintiffs-Appellants Gerrod Smith, Jonathan Smith, and David
    Silva are members of the Shinnecock Indian Nation and reside on the
    Shinnecock Reservation. They believe that when the Shinnecock
    ceded land to colonial settlers, the tribe retained the aboriginal right
    to fish in the Shinnecock Bay without interference and that the
    Supremacy Clause protects this right from state laws that would
    abridge it. 1 Over the past decade, however, state officials have
    ticketed and prosecuted the plaintiffs for violating state laws that
    regulate fishing in the Shinnecock Bay. Seeking to clarify their fishing
    rights, the plaintiffs filed this action in the U.S. District Court for the
    Eastern District of New York against the New York State Department
    of Environmental Conservation (“DEC”), 2 several DEC officials in
    1 See App’x 38 (“The colonial documents … in which the Shinnecock ceded
    land and negotiated retained fishing rights are legally enforceable today
    under state and federal law.”); App’x 41 (“The aboriginal right to fish in un-
    relinquished aboriginal territory and the related retained right to fish in
    ceded territory is a protected federal right under the Supremacy Clause.”).
    2State law empowers the DEC to manage the “fish and wildlife resources”
    of the state, including the habitats of fish and wildlife. 
    N.Y. Environmental Conservation Law § 11-0303
    (1).
    3
    their official and personal capacities, 3 the Suffolk County District
    Attorney’s Office, and Assistant District Attorney Brian Greenwood. 4
    The complaint alleged that the enforcement of state fishing
    regulations against the plaintiffs in the Shinnecock Bay violates their
    fishing rights. It also alleged that the defendants’ prior enforcement
    of state fishing regulations amounted to intentional discrimination in
    violation of 
    42 U.S.C. §§ 1981
     and 1982. The plaintiffs sought
    declaratory and injunctive relief to prevent the further enforcement of
    state fishing regulations against them. The plaintiffs sought monetary
    damages from the individual defendants based on the allegations of
    discrimination.
    The district court granted summary judgment to the DEC
    defendants. The district court concluded that state sovereign
    immunity barred all the claims against the DEC—as well as those
    against the DEC officials in their official capacities—and that the Ex
    parte Young exception to state sovereign immunity did not apply. The
    district court additionally held that the plaintiffs lacked standing to
    bring their claims for declaratory and injunctive relief and that
    Younger abstention precluded consideration of Silva’s claims for
    prospective relief. The district court further held that the plaintiffs’
    3The DEC officials include DEC Conservation Officers Brian Farrish and
    Evan Laczi and DEC Commissioner Basil Seggos.
    4 On appeal, the plaintiffs do not raise any arguments regarding the district
    court’s grant of summary judgment to the Suffolk County District
    Attorney’s Office and Assistant District Attorney Brian Greenwood. Those
    arguments are therefore waived, see Graves v. Finch Pruyn & Co., 
    457 F.3d 181
    , 184 (2d Cir. 2006), and we affirm the judgment of the district court
    insofar as it granted summary judgment to those defendants.
    4
    discrimination claims were either time-barred or failed to allege a
    prima facie case of discrimination.
    We hold that Ex parte Young applies to the plaintiffs’
    fishing-rights claims against the DEC officials—but not against the
    DEC itself—because the plaintiffs allege an ongoing violation of
    federal law and seek prospective relief against state officials. We also
    hold that the plaintiffs have Article III standing to seek prospective
    relief and that Younger abstention no longer bars Silva from seeking
    prospective relief because his criminal proceedings have ended. We
    therefore conclude that the district court erred in granting summary
    judgment to the DEC officials on the plaintiffs’ claims for declaratory
    and injunctive relief. As for the plaintiffs’ discrimination claims, we
    conclude that the district court properly granted summary judgment
    to the defendants because there is no evidence in the record that
    would permit an inference of discriminatory intent. Accordingly, we
    affirm in part and vacate in part the judgment of the district court.
    The case is remanded for further proceedings consistent with this
    opinion.
    BACKGROUND
    I
    The plaintiffs are members of the Shinnecock Indian Nation, a
    federally recognized Indian tribe, and reside on the Shinnecock
    Reservation. The plaintiffs believe that, based on certain colonial-era
    deeds, they have the right to fish in the Shinnecock Bay without
    interference and that the Supremacy Clause protects that right from
    state abridgment. Over the past decade, however, the state has
    ticketed and prosecuted the plaintiffs for violating state laws that
    regulate fishing in the Shinnecock Bay.
    5
    Gerrod Smith was prosecuted in October 2008 for possessing
    eighteen out-of-season and undersized summer flounder, sixteen out-
    of-season and undersized porgy, and two undersized blackfish
    harvested from the Shinnecock Bay in violation of state law. Around
    the same time, Jonathan Smith received a civil infraction ticket and a
    criminal summons for operating an “unpermitted aquaculture
    facility” in the Shinnecock Bay in violation of New York
    Environmental Conservation Law § 13-0316(2) and for using
    “improper shellfish tags” in violation of § 13-0319. The cases against
    Gerrod Smith and Jonathan Smith were ultimately dismissed. In 2017,
    Silva was charged with fishing without a license as well as unlawful
    possession of underage eels and possession of eels over the limit. See
    
    N.Y. Environmental Conservation Law § 13-0355
    (3); (fishing without
    a   license);   6 N.Y.C.R.R.    § 40.1(b)(1)(ii)   (undersized   eels);   id.
    § 40.1(b)(1)(iii) (eels over the limit).
    While Silva’s criminal prosecution was pending in state court,
    the plaintiffs filed this action in the U.S. District Court for the Eastern
    District of New York. The complaint alleged that certain colonial-era
    deeds establish the plaintiffs’ “right to fish in the waters of Shinnecock
    Bay and its estuary,” App’x 16, and that the application of state
    fishing regulations to the plaintiffs violates those fishing rights. The
    complaint also alleged that the defendants’ prior enforcement of state
    fishing regulations amounted to a “continuing pattern and practice of
    purposeful acts of discrimination based on their race as Native
    Americans” in violation of 
    42 U.S.C. §§ 1981
     and 1982. App’x 21.
    The plaintiffs sought a declaration of their fishing rights and an
    injunction preventing the defendants from continuing the criminal
    prosecution against Silva and from otherwise interfering with the
    plaintiffs’ “use of the waters, fishing, taking fish, and holding fish and
    6
    shellfish in Shinnecock Bay and its estuary and other usual and
    customary Shinnecock fishing waters.” App’x 22. The plaintiffs
    sought monetary damages based on the allegations of discrimination.
    The plaintiffs moved for a preliminary injunction, and the
    district court denied their motion. Silva v. Farrish, No. 18-CV-3648S,
    
    2018 WL 8967113
    , at *4 (E.D.N.Y. July 31, 2018). The district court
    concluded that Silva failed to show a likelihood of success on the
    merits and that even if he had, abstention was required under
    Younger. 
    Id.
     The district court further held that the Smiths lacked
    standing because their injuries were “entirely speculative and
    remote.” 
    Id. at *5
    .
    II
    The defendants moved to dismiss the complaint for lack of
    subject matter jurisdiction under Federal Rule of Civil Procedure
    12(b)(1) and for failure to state a claim under Rule 12(b)(6). The district
    court referred the motions to a magistrate judge, who recommended
    dismissing the plaintiffs’ complaint in its entirety. Silva v. Farrish,
    No. 18-CV-3648S, 
    2019 WL 117602
     (E.D.N.Y. Jan. 7, 2019). The
    magistrate judge held that state sovereign immunity barred the
    claims against the DEC and its officials in their official capacities. 
    Id. at *9-12
    . In so holding, the magistrate judge rejected the plaintiffs’
    argument that Ex parte Young authorized their claims for prospective
    relief. 
    Id. at *9-12
    . The magistrate judge concluded—as alternative
    bases for dismissal—that the plaintiffs lacked standing to seek
    prospective relief, 
    id.
     at *15 & n.19, and that Younger abstention
    precluded consideration of Silva’s claims for prospective relief, 
    id. at *14
    . The magistrate judge further held that the plaintiffs’
    7
    discrimination claims against the DEC officials in their individual
    capacities failed to state a claim. 
    Id. at *16
    . 5
    The district court neither adopted nor rejected the magistrate
    judge’s recommendation but terminated the dismissal motions and
    set a briefing schedule for summary judgment motions. The district
    court then referred the summary judgment motions to the magistrate
    judge for another report and recommendation. The magistrate judge
    recommended granting summary judgment to the defendants on the
    claims for declaratory and injunctive relief for the same reasons that
    were provided in the first report and recommendation. Silva v. Farrish,
    No. 18-CV-3648, 
    2020 WL 3451344
     (E.D.N.Y. May 27, 2020), report and
    recommendation adopted, No. 18-CV-3648, 
    2021 WL 613092
     (E.D.N.Y.
    Feb. 17, 2021). As for the plaintiffs’ claims of racial discrimination, the
    magistrate judge concluded that the Smiths’ claims were time-barred,
    
    id. at *11
    , and that Silva did not make out a prima facie case of
    discrimination, 
    id. at *12
    .
    The district court adopted the report and recommendation “in
    its entirety” and granted summary judgment to the defendants. Silva
    v. Farrish, No. 18-CV-3648, 
    2021 WL 613092
     (E.D.N.Y. Feb. 17, 2021).
    In their objection to the report and recommendation, the plaintiffs
    disclosed that Silva had “abandoned” his state-court criminal appeal
    and argued that Younger abstention no longer barred Silva’s claims.
    The district court rejected this argument, concluding that Silva’s
    5 The magistrate judge recommended dismissing the plaintiffs’ claims
    against the Suffolk County District Attorney’s Office and Assistant District
    Attorney Brian Greenwood on the grounds that the District Attorney’s
    Office is not an entity susceptible to suit and that Greenwood was entitled
    to absolute prosecutorial immunity. Silva, 
    2020 WL 3451344
    , at *19.
    8
    abandonment of his state-court appeal did “not equate to exhausting
    … state appellate remedies” so Younger still applied. 
    Id. at *2
     (internal
    quotation marks omitted).
    The plaintiffs timely appealed.
    DISCUSSION
    I
    We begin with the district court’s grant of summary judgment
    on the plaintiffs’ claims for declaratory and injunctive relief. We hold
    that the Ex parte Young exception to state sovereign immunity applies
    to these claims against the DEC officials, that the plaintiffs have
    Article III standing to pursue prospective relief, and that Younger
    abstention does not bar Silva’s claims for prospective relief.
    Accordingly, the district court erred in granting summary judgment
    to the DEC officials.
    A
    States are generally “immune from suit” under “the doctrine of
    sovereign immunity.” Whole Woman’s Health v. Jackson, 
    142 S. Ct. 522
    ,
    532 (2021). That doctrine recognizes that the states “entered the Union
    with their sovereign immunity intact, unlimited by Article III’s
    jurisdictional grant.” Va. Off. for Prot. & Advoc. v. Stewart, 
    563 U.S. 247
    ,
    253 (2011). Here, the plaintiffs do not contest that the DEC and its
    officials are part of the state and enjoy sovereign immunity from suit.
    Instead, the plaintiffs invoke Ex parte Young, 
    209 U.S. 123
     (1908),
    which provides a “a narrow exception grounded in traditional equity
    practice—one that allows certain private parties to seek judicial
    orders in federal court preventing state executive officials from
    enforcing state laws that are contrary to federal law.” Whole Woman’s
    9
    Health, 142 S. Ct. at 532. Ex parte Young, however, has no application
    to the DEC itself. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
    Inc., 
    506 U.S. 139
    , 146 (1993) (explaining that Ex parte Young “has no
    application in suits against the States and their agencies, which are
    barred regardless of the relief sought”). We therefore consider the
    plaintiffs’ argument as it relates to the DEC officials.
    To determine whether Ex parte Young applies to a complaint,
    we conduct a “straightforward inquiry” into whether the complaint
    (1) “alleges an ongoing violation of federal law” and (2) “seeks relief
    properly characterized as prospective.” Verizon Md. v. Pub. Serv.
    Comm’n of Md., 
    535 U.S. 635
    , 645 (2002); see also Dairy Mart Convenience
    Stores, Inc. v. Nickel, 
    411 F.3d 367
    , 372 (2d Cir. 2005). There is no doubt
    that the plaintiffs’ suit satisfies both prongs. The plaintiffs allege that
    the enforcement of state fishing regulations violates their federally
    protected fishing rights. Their requested relief—that the DEC officials
    be enjoined from enforcing the state fishing regulations against
    them—would prospectively end the alleged violation. Based on this
    analysis, Ex parte Young applies.
    The DEC defendants argue that the Supreme Court’s decision
    in Idaho v. Coeur d’Alene Tribe of Idaho, 
    521 U.S. 261
     (1997), and our
    decision in Western Mohegan Tribe & Nation v. Orange County, 
    395 F.3d 18
     (2d Cir. 2004), foreclose the application of Ex parte Young in this
    case. We disagree. In Coeur d’Alene, the Supreme Court said that if the
    effect of the requested relief is “the functional equivalent of quiet
    title” to land, then the suit has effectively been brought against the
    state and is barred by state sovereign immunity. 
    521 U.S. at 282
    . The
    suit cannot proceed if it asserts an “entitlement to the exclusive use
    and occupancy and the right to quiet enjoyment of … lands.” 
    Id. at 265
    . In other words, the suit is effectively one against the state when
    10
    “substantially all benefits of ownership and control would shift from
    the State to the Tribe.” 
    Id. at 282
    .
    In Coeur d’Alene, the tribe requested a declaratory judgment not
    only to declare invalid any laws “purport[ing] to regulate, authorize,
    use, or affect in any way the submerged lands” but also to prohibit
    the state from taking “action in violation of the Tribe’s rights of
    exclusive use and occupancy, quiet enjoyment, and other ownership
    interest in the submerged lands.” 
    Id. at 265
    . 6 In Western Mohegan, the
    tribe sought a declaration that it held “Indian title,” which it described
    as the right “to camp, to hunt, to fish, and to use the waters and
    timbers” as well as the right “to exclude all others, including holders of
    fee simple title, through state law possessory actions such as
    ejectment and trespass.” 
    395 F.3d at 22
     (alteration omitted).
    The plaintiffs here seek a declaration that the law grants them
    a right to fish in the Shinnecock Bay without interference and that the
    DEC officials are unlawfully denying them that right. Unlike the
    tribes in Coeur d’Alene and Western Mohegan, the plaintiffs’ request for
    relief in this case would not transfer ownership and control of the
    Shinnecock Bay from the state to an Indian tribe. Nor would it allow
    the plaintiffs to prevent others from fishing in the Shinnecock Bay. It
    6See also Stewart, 563 U.S. at 257 (explaining that Coeur d’Alene “refused to
    allow an Indian Tribe to use Ex parte Young to obtain injunctive and
    declaratory relief establishing its exclusive right to the use and enjoyment
    of certain submerged lands in Idaho and the invalidity of all state statutes
    and regulations governing that land”).
    11
    would merely resolve the plaintiffs’ individual claims that they have
    their own right to fish there. 7
    A decision of the Sixth Circuit is instructive. In Hamilton v.
    Myers, 
    281 F.3d 520
     (6th Cir. 2002), the court was asked to determine
    whether the plaintiffs could “seek a judicial declaration of, and an
    injunction protecting, their alleged exclusive riparian rights over
    Doherty land grants submerged under [a] Lake.” 
    Id. at 527
    . The court
    observed that “[u]nlike the Tribe in Coeur d’Alene, the Hamiltons are
    not seeking to divest sovereign ownership of [the] Lake from the state,
    or seeking entitlement to the exclusive use and occupancy of the lake.
    Nor are the Hamiltons seeking to invalidate the regulatory authority
    of the [state] agencies” over the lake. 
    Id. at 528
    . If “the Hamiltons
    prevail at trial,” the court explained, the “Lake will remain within the
    sovereign control of the State … and will continue to be subject to [the
    state’s] regulatory authority. At most …, the State … will be required
    to tailor its regulatory scheme to respect the [plaintiffs’]
    constitutionally protected riparian rights.” 
    Id.
     The court held that
    Coeur d’Alene did not “extend” to that case. 
    Id.
     So too here. If the
    plaintiffs succeed in obtaining their requested relief, at most the state
    would need to tailor its regulatory scheme to respect the plaintiffs’
    fishing rights. That is a “typical Young action,” which seeks to “bring
    the State’s regulatory scheme into compliance with federal law.”
    Coeur d’Alene, 
    521 U.S. at 289
     (O’Connor, J., concurring in part and
    7 The DEC defendants argue that the plaintiffs “have at various points …
    suggested that ownership of all or part of the Shinnecock Bay is itself
    ‘contested,’ or that all or part of the Bay is under Shinnecock ‘jurisdiction.’”
    DEC Defendants’ Br. 37. Whatever the plaintiffs may have suggested about
    the status of the Shinnecock Bay, the relief they seek in this case is not a
    “right to exclude all others.” Western Mohegan, 
    395 F.3d at 22
    .
    12
    concurring in the judgment). The requested relief would not divest
    the state of its ownership of the submerged land or the waters, which
    means this suit is not effectively one against the state.
    We hold that the plaintiffs’ claims seeking prospective relief
    against the DEC officials fall within the Ex parte Young exception to
    state sovereign immunity and accordingly may proceed.
    B
    Article III of the Constitution limits the jurisdiction of federal
    courts to “Cases” and “Controversies.” U.S. Const., art. III, § 2. The
    doctrine of standing applies the case-or-controversy requirement by
    “identify[ing] those disputes which are appropriately resolved
    through the judicial process.” Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560, (1992) (quoting Whitmore v. Arkansas, 
    495 U.S. 149
    , 155
    (1990)). To establish Article III standing, a plaintiff must have
    “(1) suffered an injury in fact, (2) that is fairly traceable to the
    challenged conduct of the defendant, and (3) that is likely to be
    redressed by a favorable judicial decision.” Spokeo Inc. v. Robins, 
    578 U.S. 330
    , 338 (2016).
    An injury in fact must be “concrete and particularized” and
    “actual or imminent, not conjectural or hypothetical.” Lujan, 
    504 U.S. at 560
     (internal quotation marks omitted). Those claiming a “risk of
    future harm” may seek “forward-looking, injunctive relief to prevent
    the harm from occurring” but only if “the risk of harm is sufficiently
    imminent and substantial.” TransUnion LLC v. Ramirez, 
    141 S. Ct. 2190
    , 2210 (2021); see also Lacewell v. Off. of Comptroller of Currency, 
    999 F.3d 130
    , 141 (2d Cir. 2021).
    13
    When a plaintiff seeks relief from a threatened criminal
    prosecution, the Supreme Court has instructed that imminence does
    “not require a plaintiff to expose himself to liability before bringing
    suit to challenge the basis for the threat—for example, the
    constitutionality of a law threatened to be enforced.” MedImmune, Inc.
    v. Genentech, Inc., 
    549 U.S. 118
    , 128-29 (2007). Rather, an imminent
    injury is apparent when the plaintiff has alleged (1) “an intention to
    engage in a course of conduct arguably affected with a constitutional
    interest, but proscribed by a statute,” and (2) “a credible threat of
    prosecution thereunder.” Susan B. Anthony List v. Driehaus, 
    573 U.S. 149
    , 159 (2014). 8 In other words, “a plaintiff has standing to make a
    preenforcement challenge ‘when fear of criminal prosecution under
    an allegedly unconstitutional statute is not imaginary or wholly
    speculative.’” Hedges v. Obama, 
    724 F.3d 170
    , 196 (2d Cir. 2013)
    (quoting Babbitt v. United Farm Workers Nat’l Union, 
    442 U.S. 289
    , 302
    (1979)).
    In this case, the DEC defendants initially raised the issue of
    standing in their motion to dismiss and did so again in their motion
    for summary judgment, arguing in both motions that the plaintiffs’
    8 “The Supreme Court has not limited standing to pursue pre-enforcement
    challenges only to plaintiffs intending conduct arguably affected with a
    constitutional interest.” Knife Rts., Inc. v. Vance, 
    802 F.3d 377
    , 384 n.4 (2d Cir.
    2015). In Cayuga Nation v. Tanner, for example, the plaintiffs alleged that a
    federal statute preempted the “application of a local anti-gambling
    ordinance” to the plaintiffs’ gaming facility. 
    824 F.3d 321
    , 323 (2d Cir. 2016).
    Applying the Driehaus standard, we held that the plaintiffs had standing to
    bring a pre-enforcement challenge because they “alleged that they intend
    to conduct bingo games, which is clearly prohibited by the Ordinance, and
    the Village has announced its intention to enforce the Ordinance against”
    the plaintiffs. 
    Id. at 331
    .
    14
    alleged injury was insufficiently imminent. 9 Because “standing was
    challenged largely on the basis of the pleadings,” we “accept as true
    all material allegations of the complaint, and … construe the
    complaint in favor of the complaining party.” Gladstone Realtors v.
    Village of Bellwood, 
    441 U.S. 91
    , 109 (1979); Sullivan v. Syracuse Hous.
    Auth., 
    962 F.2d 1101
    , 1106-07 (2d Cir. 1992) (stating in the context of a
    motion for summary judgment that the “court is constrained” when
    ruling on standing to “accept as true all material allegations of the
    complaint, and [to] construe the complaint in favor of the
    complaining party”). “[A]long with the allegations made in the
    complaint,” we consider “other facts and circumstances as may be
    evident from the record.” Sullivan, 
    962 F.2d at 1107
    ; see also Cargill Int’l
    S.A. v. M/T Pavel Dybenko, 
    991 F.2d 1012
    , 1019 (2d Cir. 1993)
    (“[C]ourt[s] must look at the substance of the allegations to determine
    jurisdiction.”).
    The plaintiffs have shown that the threat of enforcement of the
    state fishing laws amounts to an injury in fact. 10 First, the plaintiffs
    allege “an intention to engage in a course of conduct” arguably
    protected by federal law but proscribed by state law. Babbitt, 
    442 U.S. at 298
    . The plaintiffs previously fished in the Shinnecock Bay in
    violation of the state fishing regulations, and according to their
    complaint they are “deterred and chilled” from doing so again
    because they fear prosecution. App’x 18. The plaintiffs thereby
    9See Motion to Dismiss at 7-9, Silva, No. 8-CV-3648, ECF No. 56-3; Motion
    for Summary Judgment at 8-9, Silva, No. 8-CV-3648, ECF No. 84-4.
    10Judge Wesley would conclude that only Silva has established an injury in
    fact because the Smiths’ criminal proceedings were resolved in 2009 and
    2010 and the Smiths do not allege a regular course of conduct. In his view,
    the following analysis applies only to Silva rather than all three plaintiffs.
    15
    explain that they would fish if they did not fear prosecution. We have
    said that “specificity” in such plans is not “essential to standing”
    when the plaintiffs “have already been subjected to enforcement
    actions.” Knife Rts., 802 F.3d at 386 n.5. Given the plaintiffs’ history of
    fishing in the Shinnecock Bay and their prosecutions for that conduct,
    their allegation is sufficient to show their intent to fish there again.
    Second, the plaintiffs have alleged a “credible threat” of future
    enforcement of the state fishing regulations. Babbitt, 
    442 U.S. at 298
    .
    Each plaintiff has already been subject to fines and enforcement
    proceedings for violating the fishing regulations, and “past
    enforcement against the same conduct is good evidence that the threat
    of enforcement is not chimerical.” Driehaus, 573 U.S. at 164 (internal
    quotation marks omitted). The state has not foresworn enforcement
    of the fishing regulations, and “courts are generally willing to
    presume that the government will enforce the law as long as the
    relevant statute is recent and not moribund.” Cayuga Nation, 824 F.3d
    at 331-32 (internal quotation marks omitted). “Where, as here, there is
    reason to believe that the plaintiffs will be targets of criminal
    prosecution, and there has been no disavowal of an intention to
    prosecute those individuals, the plaintiffs have adequately alleged a
    credible threat of prosecution.” Id. at 331-32. Under these
    circumstances, the plaintiffs’ “professed fear of prosecution is hardly
    conjectural or hypothetical.” Knife Rts., 802 F.3d at 385.
    The DEC defendants argue that a party “cannot rely on past
    injury to satisfy the injury requirement” but “must show a likelihood
    that he … will be injured in the future.” DEC Defendants’ Br. 45-46
    (quoting Shain v. Ellison, 
    356 F.3d 211
    , 215 (2d Cir. 2004), and citing
    City of Los Angeles v. Lyons, 
    461 U.S. 95
    , 101-02 (1983)). But the
    plaintiffs have shown such a likelihood by alleging both an intention
    16
    to fish and a credible threat of prosecution if they do. The cases on
    which the DEC defendants rely involved circumstances in which a
    past injury was unlikely to recur. In Lyons, the plaintiff sought
    declaratory and injunctive relief because he claimed that he had been
    illegally choked by Los Angeles police officers. 
    461 U.S. at 98
    . The
    plaintiff alleged that the Los Angeles police routinely applied
    chokeholds and that he faced a threat of being illegally subjected to
    such treatment in the future. See 
    id. at 105-06
    . The Supreme Court
    decided that the plaintiff lacked standing to challenge the alleged
    policy because he failed to identify an imminent threat that he would
    again be stopped and mistreated by the police; he expressed no intent
    to violate the law, and he could not establish that arresting police
    officers would necessarily apply a chokehold in a future encounter.
    See 
    id.
     It was speculative that the plaintiff would again be stopped by
    police officers who decided to employ a chokehold. Similarly, in
    Shain, we held that the plaintiff was unable “to establish a sufficient
    likelihood of a future unconstitutional strip search” because the
    possibility that he would again be subjected to such a search relied on
    an “accumulation of inferences” that were “simply too speculative
    and conjectural.” 
    356 F.3d at 216
    .
    The plaintiffs in this case do not rely on such speculation. The
    state has promulgated its fishing regulations and does not dispute
    that it would apply those regulations to the plaintiffs should they fish
    again without complying. “[N]owhere in the record” have the
    defendants “disavowed that they would criminally charge [the
    plaintiffs] again in the same circumstances.” Knife Rts., 802 F.3d at
    386-87; see also Holder v. Humanitarian L. Project, 
    561 U.S. 1
    , 16 (2010)
    (recognizing a threat as imminent because the government had “not
    17
    argued ... that plaintiffs will not be prosecuted if they do what they
    say they wish to do”).
    The plaintiffs seek to fish in the Shinnecock Bay without
    complying with state fishing regulations. We do not see a basis in the
    record for dismissing their claims on the ground that they do not
    intend to fish or that the state does not intend to enforce its
    regulations. We hold that the plaintiffs have shown an injury in fact
    for standing to pursue declaratory and injunctive relief.
    C
    Last,   we    address    whether    Younger    abstention    bars
    consideration of Silva’s claims for injunctive relief. Silva pursued two
    different claims for injunctive relief. The first would “enjoin[] the
    Defendants from enforcing the laws of the State of New York against
    Plaintiff Silva in Southampton Town Justice Court in Case
    No. 17-7008.” App’x 22. The second would “enjoin[] the Defendants
    from … interfering with Plaintiffs’ use of the waters, fishing, taking
    fish, and holding fish and shellfish in Shinnecock Bay and its estuary
    and other usual and customary Shinnecock fishing waters.” App’x 22.
    Although there was an ongoing state prosecution when Silva filed his
    federal complaint, that proceeding has now ended. Silva’s first
    claim—and the Younger issue associated with it—is therefore moot.
    Silva may proceed on his second claim for injunctive relief.
    We faced a similar situation in Pathways, Inc. v. Dunne, 
    329 F.3d 108
     (2d Cir. 2003). In that case, “the lawsuits and litigation efforts
    initiated by [the defendants] against [the plaintiff] in the state
    courts … concluded.” 
    Id. at 114
    . We decided that the plaintiff’s claims
    for injunctive relief that implicated “state cases pending when the
    District Court ruled” were “now moot because those cases are
    18
    concluded.” 
    Id.
     But, like Silva’s claims, the plaintiff’s claims included
    “a prospective component: [the plaintiff] sought to prevent suits that
    [the defendants] might file in the future, or other obstructive activity
    in which they might engage.” 
    Id.
     Those forward-looking claims were
    not barred because “Younger is not a bar to federal court action when
    state judicial proceedings have not themselves commenced.” 
    Id.
    (quoting Hawaii Hous. Authority v. Midkiff, 
    467 U.S. 229
    , 238-39
    (1984)). 11
    Because there is no dispute that Silva’s prosecution has ended,
    we regard his request to enjoin that prosecution as moot. But Younger
    abstention does not affect his other claim for injunctive relief. 12
    11 Presented with a similar situation, the Tenth Circuit “vacate[d] the
    district court’s order dismissing [the plaintiff’s] claims on Younger grounds
    and remand[ed] these claims for further consideration.” Columbian Fin.
    Corp. v. Stork, 
    811 F.3d 390
    , 395 (10th Cir. 2016); see also Bass v. Butler, 
    258 F.3d 176
    , 179 (3d Cir. 2001); Davis v. Rendell, 
    659 F.2d 374
    , 376 (3d Cir. 1981);
    Wood v. Several Unknown Metro. Police Officers, 
    835 F.2d 340
    , 341-42 (D.C. Cir.
    1987).
    12The DEC defendants argue that Younger abstention requires dismissal of
    Silva’s claim for injunctive relief because he did not “exhaust[] his state
    court appellate remedies.” DEC Defendants’ Br. 42. To be sure, Silva may
    not forgo appealing an adverse state-court judgment to pursue a collateral
    attack on that judgment in federal court. In Huffman v. Pursue, Ltd., for
    example, the plaintiff did not appeal a state-court judgment issued against
    him and instead sought to enjoin the execution of that judgment in federal
    court. 
    420 U.S. 592
    , 599 (1975). The Supreme Court said that the plaintiff
    “must exhaust his state appellate remedies before seeking relief” in federal
    court. 
    Id. at 608
    . Here, by contrast, Silva’s second claim for relief does not
    collaterally attack his criminal conviction but instead seeks prospectively to
    prevent the defendants from interfering with his alleged right to fish.
    19
    II
    As for the plaintiffs’ discrimination claims, we conclude that
    the district court properly granted summary judgment to the
    defendants because there is no evidence in the record that would
    permit an inference of discriminatory intent.
    Section 1981 provides that “all persons have equal right to
    make and enforce contracts,” and § 1982 “establishes that all persons
    have equal right to purchase, lease, sell, hold, and convey real and
    personal property.” Costello v. Town of Huntington, No. 14-CV-2061,
    
    2015 WL 1396448
    , at *12 (E.D.N.Y. Mar. 25, 2015) (citing 
    42 U.S.C. §§ 1981
    , 1982). To state a prima facie claim under either provision,
    plaintiffs must prove: “(1) they are members of a racial minority;
    (2) an intent to discriminate on the basis of their race by defendant;
    and (3) the discrimination concerned one or more of the activities
    enumerated in the statute (i.e., make and enforce contracts, sue and
    be sued, give evidence, etc.).” Mian v. Donaldson, Lufkin & Jenrette Sec.
    Corp., 
    7 F.3d 1085
    , 1087 (2d Cir. 1993).
    The second element of the claim—an intent to discriminate—is
    the focus of this appeal. To survive summary judgment, the plaintiffs
    needed to produce enough evidence for a reasonable jury to find that
    the defendants intentionally discriminated against the plaintiffs
    based on race. See Ayissi-Etoh v. Fannie Mae, 
    712 F.3d 572
    , 576 (D.C.
    Cir. 2013) (“For purposes of summary judgment, the operative
    question under Section 1981 … is whether the employee produced
    sufficient evidence for a reasonable jury to find that … the employer
    intentionally discriminated against the employee on the basis of
    race.”) (internal quotation marks omitted). The plaintiffs did not
    provide evidence from which a rational trier of fact could find racially
    20
    discriminatory intent. The record shows that the DEC officials cited
    the three plaintiffs for violating race-neutral, generally applicable
    fishing regulations in state waters. There is no evidence that the DEC
    officials did or said anything that would indicate racial animus. Nor
    is there evidence that they treated non-Indians more favorably than
    the plaintiffs.
    The plaintiffs point to an email that, they argue, establishes
    “illegal racial profiling of Shinnecock people of the Native American
    race.” Appellants’ Br. 22. The email, dated March 28, 2017, and sent
    from DEC Captain Dallas Bengel to a large group of DEC employees
    (including Laczi and Farrish), explained that “[w]ord is out that the
    Shinnecocks are actively seeking a shipper for glass eels” and noted
    that the DEC “will have to work the off-reservation areas diligently
    to prevent illegal harvest.” App’x 420. The plaintiffs argue that the
    email reflects racial animus because it identifies the “Shinnecocks.”
    But “Shinnecocks” is not a slur; it describes the tribe and its members.
    The email does not instruct DEC officials to harass or to profile tribe
    members; it directs them to work “diligently to prevent [an] illegal
    harvest” of glass eels—a nondiscriminatory law-enforcement
    objective.
    Without    evidence    of   racial   animus,    the   plaintiffs’
    discrimination claims cannot survive summary judgment. We affirm
    the judgment of the district court insofar as it granted of summary
    judgment on these claims.
    CONCLUSION
    The district court erred in granting summary judgment to the
    DEC officials on the plaintiffs’ claims for declaratory and injunctive
    relief with respect to their fishing rights. The district court properly
    21
    granted summary judgment to the DEC itself on those claims and to
    all the defendants on the discrimination claims. Accordingly, we
    affirm in part and vacate in part the judgment of the district court.
    The case is remanded for further proceedings consistent with this
    opinion.
    22