Opinion
No. CV 06 4018257
September 20, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS AND/OR STRIKE #101
Before the court is whether the court should grant the defendant United Illuminating Co.'s motion to dismiss this action for lack of subject matter jurisdiction, or in the alternative, treat the motion as a motion to strike, on the ground that the complaint is legally insufficient.
This case arises out of a disagreement between the plaintiff, the Friends of Animals, Inc., an environmental group, and the defendant, the United Illuminating Company, an electric utility, about how the defendant deals with the problem of monk parakeets nesting on its utility poles and power lines.
The plaintiff alleges the following facts in its complaint. Monk parakeets are a species of bird that, over the last thirty years, has successfully adapted to living in Connecticut. Monk parakeets build large nests in elevated places using sticks, twigs and vegetation. The birds sometimes build their nests on utility poles and wires that are maintained by the defendant. In November 2005, the defendant engaged in a program to destroy the nests that the birds had built on its utility poles and wires. As part of this program, the birds were gassed to cause them to become immobile, captured and transferred to be killed. At present, the defendant has not implemented any method for dissuading the birds from building their nests on its equipment. Therefore, it is likely that the birds will continue to do so. This is likely to pose a potential public hazard and result in the defendant renewing its lethal removal of the birds. The defendant's conduct in removing and killing the birds constitutes conduct that is reasonably likely to unreasonably impair or destroy the public trust in the natural resources of the state, i.e., the monk parakeets and other interdependent species of wildlife, and is in violation of General Statues § 22-16. While the defendant's practices do not dissuade the birds from nesting on its equipment, alternatives do exist that would allow the defendant to continue to remove the nests without requiring the removal and destruction of the birds. The defendant's failure to implement these measures is likely to cause the unnecessary destruction of monk parakeets, unnecessary harm to other species of wildlife, and impairment of the public trust in the ability of the state to protect its natural resources, in violation of § 22a-16.
General Statutes § 22a-16 states, in relevant part, "any . . . association, organization, or other legal entity may maintain an action in the superior court . . . for declaratory and equitable relief against . . . any . . . corporation for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . ."
The plaintiff seeks a declaratory judgment that the defendant is violating a provision of the Connecticut Environmental Protection Act, General Statutes § 22a-14 et seq. (CEPA), in particular General Statutes § 22a-16, by not implementing measures to prevent the birds from building their nests on its utility poles, a permanent injunction restraining the defendant from gassing, capturing, or killing the birds, and to recover the costs of the lawsuit. On March 9, 2006, the defendant filed a motion to dismiss the action for lack of subject matter jurisdiction, arguing that the matter is not ripe for adjudication, and in the alternative, to strike the entire complaint as legally insufficient. The defendant also submitted an affidavit by William Cook, its director of asset management, and several documents in support of its motion. On April 26, 2006, the plaintiff filed a memorandum and an affidavit by Dwight G. Smith, a biology professor, in opposition to the motion to dismiss. The plaintiff argues that the action is ripe because it is based on the defendant's current maintenance practices. Furthermore, the plaintiff contends that the court should not consider Cook's affidavit and the documents that the defendant submitted in support of its motion. In reply, the defendant contends that the court should not consider Smith's affidavit. The court heard oral argument on June 6, 2006.
Previously, in December 2005, the plaintiff brought an action in which it sought an injunction to stop the defendant from killing monk parakeets. The plaintiff voluntarily withdrew the action when the defendant stated it would no longer kill, or assist in killing the birds. See Friends of Animals, Inc. v. United Illuminating Co., Superior Court, judicial district of New Haven, Docket No. CV 05 4017004.
DISCUSSION
"An issue regarding justiciability . . . implicates [the] court's subject matter jurisdiction . . ." Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 624, 822 A.2d 196 (2003). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ." Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "Where . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferriera v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
Initially, the court addresses whether the parities' affidavits and the documents that the defendant submitted in support of its motion are properly before the court. The plaintiff contends that the court should not consider Cook's affidavit because it contains statements that are not based upon his personal knowledge and are premised on hearsay. In reply, the defendant argues that corporate designees, such as Cook, may properly attest to statements regarding corporate matters that are beyond their personal knowledge.
Although the Connecticut appellate courts have not directly addressed the question of whether an affidavit that is submitted in support of a motion to dismiss must be based on personal knowledge, the trial courts have done so. See, e.g., Tilcon, Inc. v. First Union National Bank, Co., Superior Court, judicial district of New Britain, Docket No. CV 98 489997 (September 13, 1999, Shortall, J.), and Winkleman v. Dohm, Superior Court, judicial district of Waterbury, Docket No. 096682 (April 27, 1992, Barnett, J.) ( 6 Conn. L. Rptr. 382). "In Winkleman the court held that an affidavit in support of a motion to dismiss must meet the same requirements as an affidavit in support of a motion for summary judgment. Winkleman v. Dohm, supra, 6 Conn. L. Rptr. 382. The statements contained in the affidavit must be based on personal knowledge. Id. The court reasoned: `Practice Book [§ 10-31] allows affidavits as to facts not apparent on the record. A similar requirement of factual assertions is contained in Practice Book [§ 17-46] dealing with the requirements of an affidavit in motions for summary judgment. In summary judgment situations, affidavits based on belief and knowledge would clearly be inadequate. Farrell v. Farrell, 182 Conn. 34, 39, [ 438 A.2d 415] (1980). And the same rule should pertain to motions to dismiss where affidavits are utilized to supply jurisdictional facts. See Barde v. Board of Trustees, 207 Conn. 59, 61-62, [ 539 A.2d 1000] (1988). Moreover, the very concept of an affidavit is a document stating facts within the knowledge of the affiant. Rosenblit v. Danaher, 206 Conn. 125, 136-37, [ 537 A.2d 145] (1988).' Winkleman v. Dohm, supra, 6 Conn. L. Rptr. 382; see generally 3 Am.Jur.2d § 23 (1986) ('an affidavit, the statements of which are alleged on information and belief, is insufficient in any instance where the affiant is required to make the affidavit as to the substance of the truth of the facts stated, and not merely as to good faith); 2A C.J.S. § 49 (1972) ('generally an affidavit must show affiant's personal knowledge')." Tilcon, Inc. v. First Union National Bank, Co., supra, Superior Court, Docket No. CV98 489997. See also, Barrett v. Danbury Hospital, 232 Conn. 242, 252, 654 A.2d 748 (1995).
On the other hand, in Zbras v. St Vincent's Medical Center, 91 Conn.App. 289, 880 A.2d 999, cert. denied, 276 Conn. 910, 886 A.2d 424 (2005), a case that the defendant relies upon, the Appellate Court recently determined that the trial court, in ruling on the defendant's motion for summary judgment, properly considered statements that one of the defendant directors made in his affidavit despite the fact that the statements were premised on his review of business records and were not within his personal knowledge. The court explained that "[a]lthough perhaps it may have been better practice to have prefaced the assertion with an indication of its basis, the court nevertheless properly relied on the assertion. Cf. General Statutes § 52-180(b)(1) (business records not rendered inadmissible by witness' lack of personal knowledge of act, transaction or occurrence recounted therein)." Zbras v. St Vincent's Medical Center, supra, 91 Conn.App. 294.
In the present case, Cook attests that his affidavit is "based on my personal knowledge and upon information provided to me by others that I believe to be correct." An affiant's reliance on his company's business records is not equivalent to his reliance on information provided to him by others which he "believe[s] to be correct." As the court noted in Zbras, § 52-180(b)(1), which applies to business records, specifically provides that such records "shall not be rendered inadmissible by (1) a party's failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded." A similar provision does not exist for information provided to a company's designee by "others." As to the affidavit of Smith, the plaintiff's expert, the defendant asserts that it is inadmissable in that Smith attests to information that is outside his area of expertise and addresses issues that are not relevant to the defendant's motion. Section 7-2 of the Connecticut Code of Evidence provides: "A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue." "Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues," (Internal quotation marks omitted.) Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 167-68, 847 A.2d 978 (2004). It is not possible to ascertain whether Smith's affidavit meets the first element of admissibility. Smith attests that he is a biology professor and that a copy of his curriculum vitae is attached. His curriculum vitae is not, however, attached to his affidavit, nor could it be located in the court's file.
Regarding the documents that the defendant submitted in support of its motion, as the plaintiff points out, the defendant has not properly authenticated them, nor did Cook attempt to do so in his affidavit. See Connecticut Code of Evidence §§ 8-3(7) and 8-4. As the Appellate Court recently explained in the context of a motion for summary judgment, "before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . ." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). This standard should also apply to documents that a party submits in support of a motion to dismiss.
For the foregoing reasons, the court declines to consider the affidavits and the evidence that the parties submitted in support of their respective positions. Accordingly, the court will consider whether it can rule on the merits of the defendant's motion to dismiss on the basis of pleadings.
"[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). Nevertheless, it is well established that, "in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006).
The defendant first argues that the action should be dismissed because it is not ripe. Specifically, the defendant maintains that the plaintiff is asking the court to decide a hypothetical question in that it is no longer capturing monk parakeets and turning them over to a third party to kill and "has no current plans to do so." Furthermore, the defendant argues, the court does not have jurisdiction to consider the plaintiff's claims regarding its present maintenance program because those claims are also hypothetical and depend on a question that is not ripe, i.e., the catching and killing claim. The plaintiff does not dispute that the defendant stopped catching the monk parakeets. Instead, it contends that the action is ripe because the birds are presently building their nests on utility poles and wires and the defendant's current maintenance program, which is not designed to prevent the birds from doing so, will likely lead the defendant to resume its catching and killing activities.
The plaintiff also asserts that the court should analyze the issue under the "capable of repetition yet evading" review standard. That standard, however, applies to the related principle of mootness.
The plaintiff brings this action pursuant to the CEPA. As noted by the Supreme Court, "[t]his act expands the class of plaintiffs who are empowered to institute proceedings to vindicate the public interest. The act creates both procedural and substantive rights." Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 55-56, 441 A.2d 68 (1981), overruled in part on other grounds in Waterbury v. Washington, 260 Conn. 506, 556, 1102 A.2d 800 (2002). "Statutes such as the [C]EPA are remedial in nature and should be liberally construed to accomplish their purpose." Manchester Environmental Coalition v. Stockton, supra, 184 Conn. 557.
Section 22a-16 specifically permits a party to bring an action for declaratory and injunctive relief. The next section of the act, "General Statutes § 22a-17 sets the hurdles one must overcome in order to satisfy the burden of proof requirements set under CEPA." Waterbury v. Washington, supra, 260 Conn. 550. The plain language of this portion of the act indicates that it is intended to permit plaintiffs to challenge not only conduct that has already unreasonably damaged natural resources, but also conduct that is reasonably likely to do so in the future. Section 22a-17 provides in relevant part: "(a) When the plaintiff in any such action has made a prima facie showing that the conduct of the defendant . . . has, or is reasonably likely unreasonably to pollute, impair or destroy the pubic trust in the . . . other natural resources of the state, the defendant may rebut the prima facie showing by the submission of evidence to the contrary . . ." (Emphasis added.)
See footnote 1.
In Manchester Environmental Coalition v. Stockton, supra, 184 Conn. 51, the issue was whether the plaintiffs had standing to seek a declaratory judgment and to enjoin the defendant commissioner of commerce from approving a plan for a proposed industrial park, where the plaintiffs alleged that the park would cause unreasonable air pollution. The court explained that pursuant to § 22a-17, "the plaintiff must first come forward and show that the defendant has, or is reasonably likely to unreasonably pollute, impair, or destroy a natural resource . . . A review of the record shows that the plaintiffs presented a prima facie case by showing a protectable natural resource (air) and that the action of the defendants would impair this resource" (Emphasis added.) Id., 58 Although the question of the ripeness of the plaintiffs' action was not before the court, its comments regarding the prospective nature of the defendant's alleged CEPA violations in the context of the related issue of standing, support the idea that the statute is intended to permit plaintiffs to challenge future conduct.
This conclusion is not inconsistent when the issue of ripeness is analyzed under the principles that generally apply to declaratory judgment actions, on which the defendant relies. "An action for declaratory judgment is a special proceeding under General Statutes § 52-29, implemented by Practice Book §§ 17-54 and 17-55 . . . It provides a valuable tool by which litigants may resolve uncertainty of legal obligations.' Milford Power Co., LLC v. Alstom Power, Inc., [ supra, 263 Conn. 625]." (Internal quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins. Co., 88 Conn.App. 471, 475-76, 869 A.2d 1254, cert. denied, 274 Conn. 903, 876 A.2d 11 (2005).
"Our Supreme Court has frequently pointed out that the statutes and rules pertaining to declaratory judgments create an independent remedy and should be accorded a liberal construction. As stated in Sigal v. Wise, [ 114 Conn. 297, 301, 158 A. 891 (1932)], [t]he statute authorizing the Superior Court to render declaratory judgments is as broad as it well could be made . . . Indeed, `[o]ur statute, which antedated the Uniform Declaratory Judgments Act, is broader in scope than that act and the statutes in most, if not all, other jurisdictions.' Connecticut Savings Bank v. First National Bank Trust Co., 133 Conn. 403, 409, 51 A.2d 907 (1947)." (Citations omitted; internal quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins. Co., supra, 88 Conn.App. 476.
Nevertheless, our Supreme Court has cautioned that "[a] declaratory judgment action is not . . . a procedural panacea for use on all occasions, but, rather, is limited to solving justiciable controversies . . . Invoking § 52-29 does not create jurisdiction where it would not otherwise exist . . . [W]hile the declaratory judgment procedure may not be utilized merely to secure advice on the law . . . or to establish abstract principles of law . . . or to secure the construction of a statute if the effect of that construction will not affect a plaintiff's personal rights . . . it may be employed in a justiciable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement, and where all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof . . . Finally, the determination of the controversy must be capable of resulting in practical relief to the complainant." (Citations omitted; internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., supra, 263 Conn. 625-26.
As to the second factor, which is arguably at issue in the present matter, the Supreme Court has explained that "[courts] are not compelled to decide claims of right which are purely hypothetical or are not of consequence as guides to the present conduct of the parties." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 350, 844 A.2d 211 (2004).
Although in the past, the court has stated that claims that are contingent on occurrence of a future event may be ripe; Sigal v. Wise, supra, 114 Conn. 302; in Milford Power Co., LLC v. Alstom Power, Inc., the court reiterated that an action is not ripe unless an actual issue is in dispute. "In other words, [if] the plaintiff's claims [are] contingent on the outcome of a dispute that [has] not yet transpired, and indeed, might never transpire, the injury [is] hypothetical, and, therefore, the claim [is] not justiciable." Milford Power Co., LLC v. Alstom Power, Inc., supra, 263 Conn. 627. In deciding that the matter before it was not ripe, the court explained, "there was no actual issue in dispute. The plaintiff sought a declaratory judgment, not to settle a present controversy, but rather to avoid one in the future. Conduct by the defendants that could form the foundation for a real controversy between the parties, over additional time . . . had not moved beyond the theoretical. Because this declaratory judgment action was not predicated on a justiciable controversy, the trial court did not have jurisdiction over the matter." Id., 629.
In the few recent cases that have been decided after Milford Power Co., LLC in which a court has found that a claim that was premised on a contingent event was nevertheless justiciable, the circumstances were such that the event was very likely to occur, given the defendant's past conduct, or its occurrence would render further judicial review impossible.
As to the latter, see, Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 571, 858 A.2d 709 (2004) (plaintiff's challenge to issuance of subpoena was ripe, although plaintiff had not yet been found in contempt for noncompliance and defendant stated it did not intend to enforce compliance, where "defendant has left open the possibility that the [plaintiff's] failure to comply . . . may result in an article of impeachment . . . To require the plaintiff to wait . . . would render the plaintiff's challenge a nonjusticiable political question").
As to the former, see, e.g., George v. Watertown, 85 Conn.App. 606, 613-15, 858 A.2d 800, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004) (plaintiff's action for declaratory judgment as to constitutionality of subdivision regulation was ripe, although plaintiff did not have an application pending and commission had not attempted to enforce regulation against him, where commission had done so in the past, and "it is reasonable to conclude that the plaintiff is likely to confront the regulation in the future"); Century Indemnity Co. v. Crane Co., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 05 4003122 (October 19, 2005, Adams, J.) (plaintiffs' action for injunctive relief prohibiting defendant from entering into settlement discussions without allowing plaintiffs to participate was ripe, although settlement agreement was later withdrawn, where agreement which "may very well have provided a basis for injunctive relief" was in effect when plaintiffs filed their action. "With this kind of track record, the court is unable to hold that the claim . . . is not ripe . . ."); and May v. Lantz, Superior Court, judicial district of Hartford, Docket No. CV03 0829408 (May 10, 2004, Berger, J.) ( 37 Conn. L. Rptr. 7, 8) (plaintiff's action for declaratory judgment as to whether he will be required to register as sex offender when his current sentence expires was ripe and "is distinguishable from Milford Power because it pertains to a situation in which the outcome is not merely theoretical or hypothetical, but, due to the [defendant's] actions, inevitable").
In the present case, the plaintiff does not allege that the monk parakeets are presently building their nests on the defendant's equipment or that the defendant is presently capturing and killing the birds. The plaintiff does, however, like the plaintiffs in the second category of cases referred to above, allege circumstances in which, given the past conduct of both the monk parakeets and the defendant, it is reasonable to conclude that the plaintiff is likely to confront similar conduct by the defendant in the future. Because the plaintiff is entitled to bring an action under § 22a-16 for declaratory and injunctive relief against the defendant to protect the monk parakeets from their likely unreasonable destruction or impairment, its complaint, like the complaint in George v. Watertown, supra, 85 Conn.App. 615, "presents a claim [that is] ripe for judicial consideration." Therefore, the defendant has not established that the court lacks subject matter jurisdiction over the action. For the foregoing reasons, the defendant's motion to dismiss is denied by the court.
In the alternative, the defendant moves to strike the action for failure to state a claim upon which relief can be granted. "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted," (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "The role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotations marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
First, the defendant contends that the catching and killing of monk parakeets is specifically permissible under General Statutes § 26-92 when they constitute a threat to public health and safety The defendant contends that its conduct in doing so cannot be in violation of § 22a-16 if the conduct is allowed by this more specific statute. According to the defendant, the plaintiff's statement in the complaint that the presence of the birds on the defendant's equipment poses a threat to public safety constitutes a judicial admission as to this issue. The plaintiff counters that the defendant has not established that its conduct is permissible under § 26-92 or that the statute is sufficiently specific. The defendant responds that it is not required to establish this first point, given the plaintiff's judicial admission.
General Statutes § 26-92 prohibits the catching or killing of wild birds but specifically provides that, "when concentrated in such numbers as to constitute a public health or public safety hazard . . . monk parakeets . . . shall not be included among the birds protected by this section." The first consideration is whether the plaintiff has judicially admitted that the defendant's potential conduct is allowed under § 26-92. In the allegation that the defendant relies upon, the plaintiff alleges: "The failure to implement these preventive measures is likely to result in Monk Parakeets' continued nest construction and twigs, branches and/or vegetation upon utility poles posing a potential public hazard and resulting in the renewed lethal removal of the Monk Parakeets by the Defendant."
"Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings . . . They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them . . . To the extent that they dispense with evidence, they are similar to facts judicially noticed." (Citation omitted; internal quotation marks omitted.) Mamudovski v. Bic Corp., 78 Conn.App. 715, 727, 829 A.2d 47, appeal dismissed, 271 Conn. 297, 857 A.2d 328 (2004). "For a factual allegation to be held to be a judicial admission, the fact admitted should be one within the speaker's particular knowledge and one about which the speaker is not likely to be mistaken . . . Courts require the statement relied upon as a binding admission to be clear, deliberate and unequivocal." (Citations omitted; internal quotation marks omitted.) Id., 728-29. The present plaintiff's statements that the likely future conduct of the birds poses a "potential public hazard" is not a clear, deliberate, unequivocal statement that the birds are "concentrated in such numbers as to constitute . . . a public safety hazard." Therefore, the plaintiff's statement is not a judicial admission as to this fact. Accordingly, the defendant has not met his burden of establishing that the plaintiff has not alleged a legally sufficient claim under § 22a-16. Therefore, the defendant's motion to strike the action on this ground is denied.
The defendant also moves to strike the complaint on the ground that if Connecticut law can be construed to forbid the catching and killing of monk parakeets, it would be unconstitutional as applied because federal law authorizes this practice. As our Appellate Court has explained, the issue of "[f]ederal preemption implicates the court's [subject matter] jurisdiction." Lewis v. Chelsea G.C.A. Realty Partnership, L.P., 86 Conn.App. 596, 601, 862 A.2d 368 (2004), cert. denied, 273 Conn. 909, 870 A.2d 1079 (2005).
Generally, "[t]here is a strong presumption against federal preemption of state and local legislation . . . This presumption is especially strong in areas traditionally occupied by the states, such as public health and safety . . . Consideration of issues arising under the supremacy clause `start[s] with the assumption that the historic police powers of the States [are] not to be superceded by [a] Federal Act unless that [is] the clear and manifest purpose of Congress.' (Emphasis added.) Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 2250, 135 L.Ed.2d 700 (1996) . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 791, 712 A.2d 396, cert. denied, sub nom Slotnik v. Considine, 512 U.S. 1017, 119 S.Ct. 542, 142 L.Ed.2d 451 (1998). Moreover, in a different context, a federal court has noted that "[h]istorically, States have possessed `broad trustee and police powers over the . . . wildlife within their borders, including . . . wildlife found on Federal lands within a State.' 43 C.F.R. § 24.3 (policy statement of USDI); see also Kleppe v. New Mexico, 426 U.S. 529, 545, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976)." Wyoming v. United States, 279 F.3d 1214, 1226 (10th Cir. 2002).
"The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution . . . Determining whether Congress has exercised its power to preempt state law is a question of legislative intent . . . Preemption may be express or implied . . . Express preemption occurs to the extent that a federal statute expressly directs that state law be ousted to some degree from a certain field . . . Even where there is no express statutory statement ousting state law from a given area, [however] there may be implied preemption . . . The United States Supreme Court has instructed us that, absent an explicit statement that Congress intends to preempt state law, courts should infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law . . . or where the state law at issue conflicts with federal law, either because it is impossible to comply with both . . . or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives . . ." (Citations omitted; internal quotation marks omitted.) Id., 791.
The defendant relies on the principle of implied conflict preemption. According to the defendant, the federal Animal Damage Control Act, 7 U.S.C. § 426 et seq., allows it to conduct its capture program in conjunction with the United States Department of Agriculture. Furthermore, the defendant points out that monk parakeets are not protected under the federal Endangered Species Act, 16 U.S.C. § 1531 et seq.; the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.; or the Wild Bird Conservation Act, 16 U.S.C. § 4901 et seq.
"[The United States Supreme Court has] found implied conflict pre-emption where it is impossible for a private party to comply with both state and federal requirements . . . or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. . . . Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995) . . ." (Citations omitted.) Dowling v. Slotnik, supra, 244 Conn. 794.
The defendant has not cited to any federal statute or regulation that mandates either that it engage in a program to capture and kill the monk parakeets or that it not engage in a maintenance program to discourage the birds from nesting on its equipment such that it would be impossible for the defendant to comply with federal requirements and General Statutes § 22a-16, assuming the state statute prohibits it from killing the birds. Nor has the defendant cited any federal authority that indicates that the "full purposes and objectives of Congress" are such that § 22a-16, if it prohibited the defendant from killing the birds, would "[stand] as an obstacle" to their execution. Although Congress has authorized the Secretary of Agriculture to "take any action that the Secretary considers necessary in conducting the program [of wildlife services with respect to injurious animal species];" 7 U.S.C. § 426; Congress also authorized the Secretary "to enter into agreements with States . . . in the control of nuisance animals and birds . . ." 7 U.S.C. § 426c. Moreover, Congress has declared that "[e]ach state should be encouraged to develop, revise, and implement, in consultation with appropriate Federal, State, and local and regional agencies, a plan for the conservation of fish and wildlife, particularly those species which are indigenous to the State." 16 U.S.C. § 2901. As to the other federal statutes that the defendant relies upon, in the Endangered Species Act, Congress stated that "[t]his chapter shall not otherwise be construed to void any State law or regulation which is intended to conserve migratory, resident, or introduced fish or wildlife . . . Any State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this chapter or in any regulation which implements this chapter but not less restrictive than the prohibitions so defined." 16 U.S.C. § 1535(f) (entitled "Conflicts between Federal and State laws"). Finally, in the Migratory Bird Treaty, Congress stated, "[n]othing in this subchapter shall be construed to prevent the several States and Territories from making or enforcing laws or regulations not inconsistent with the provisions of said conventions or of this subchapter or enforcing laws or regulations which shall give further protection to migratory birds, their nests, and eggs . . ." 16 U.S.C. § 708.
Given the foregoing, the defendant has failed to establish that Congress intended that the federal statutes that the defendant relies upon would preempt § 22a-16, to the extent that the state law can be interpreted to prohibit the killing of monk parakeets. Therefore, the defendant's motion to strike and/or dismiss the plaintiff's action on this ground is denied.
CONCLUSION
Accordingly and for the foregoing reasons, the defendant's motion to dismiss and/or strike the plaintiff's action is denied.