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Dec 21, 2010 3:16 PMPublication: The East Hampton Press

Court Agrees: Town Waters Are Exempt From State Fishing License Requirement

Dec 21, 2010 3:16 PM

A state court has ruled that Albany cannot require residents of several Long Island towns—including Southampton and East Hampton—to have state saltwater fishing licenses if they are fishing within town waters.

State Supreme Court Justice Patrick A. Sweeney ruled last week that colonial-era agreements gave the townships of Southampton, East Hampton, Shelter Island, Brookhaven, Southold, Oyster Bay and Huntington control over the fishing in their municipalities’ territorial waters, which exempts those waters from the state license requirements.

“While the state has the right to regulate fishing, this statute has nothing to do with the regulation of fishing, per se, or anything which would be paramount to deprive the rights of the towns to control fishing within their jurisdiction,” Justice Sweeney wrote in his decision issued on December 14. “Clearly, the statute went beyond the state’s justification.”

The money taken in from the state licenses, estimated to be about $2 million per year, is put into a statewide marine resources fund, which pays, among other things, the salaries of DEC enforcement officers.

The Southampton and East Hampton town trustees, joined by the Town of Shelter Island, initiated the lawsuit in October 2009, just a day before the state began requiring residents fishing in tidal waters to obtain a $10 fishing license that would have to be renewed each year, or a $150 lifetime license. Judge Sweeney issued an injunction against the State Department of Environmental Conservation, prohibiting it from enforcing the license requirement within the Trustees’ jurisdiction. Since his ruling does not modify that injunction, it remains in place, Assistant Southampton Town Attorney Joseph Lombardo said.

The exemption from the license requirement does not, however, apply to Montauk or the surrounding waters since the East Hampton Town Trustees do not hold authority over any areas of East Hampton Town that lie east of Hither Hills. Those fishing in boats in the ocean off Southampton Town, or in much of Peconic Bay—both of which are state waters—will also have to possess a fishing license, though the injunction seems to preclude the DEC from enforcing the requirement once those fishing in state waters return to land.

“What it means, at least in the short term, is that town residents don’t need to have a state fishing license,” Mr. Lombardo said. “The judge didn’t modify the injunction, he didn’t dissolve the injunction, so it becomes a permanent injunction.”

In defense of their claim, the two Town Trustees boards, which were joined later by the other towns, argued that their residents and waters should be exempt from the license requirement because of the freedoms granted to them in 17th century bylaws, known as the Dongan Patents, under the authority of the King of England. The patents, written by Thomas Dongan, the governor general of the New York colony, gave the authorities of the respective towns, then the various boards of trustees, “sole control … over all the fisheries, fowling, sand, weed, waters within the said town not the property of individuals.”

The tenets of the patents were adopted into state law by the State Legislature in 1831, which ceded control of the waters within the townships of Nassau and Suffolk counties to their respective governments—a point that Justice Sweeney noted has been upheld by several courts over the years. “The statutory exemption has consistently been construed as authorizing the counties of Nassau and Suffolk and their respective townships to legislate and control the use of such lands and waterways,” he wrote.

The judge noted that the state’s justification for creating the license—the first time residents of the state have been required to have a license for fishing in saltwater—was to comply with a federal requirement that states have angler registries for people who fish for anadramous fish, primarily striped bass and salmon. But the state’s license requirement goes far beyond the basic federal registry, Justice Sweeney said.

Mr. Lombardo acknowledged that legal battles still lie ahead. The state has already filed an appeal of Judge Sweeney’s decision, based on his rejection of a motion to have the suit dismissed on legal grounds last summer. That case will be argued in an appellate court next summer.

“To me, this is a building block, it’s a victory,” East Hampton Town Trustee Diane McNally said of last week’s decision. “We’ll have to go through the appeal, but there was a judge who agreed with our position that the state had overstepped its bounds. If other groups put on their magnifying glasses and look at this license, who knows what other aspects of it might be challenged.”

When it was created, the marine fishing license drew heavy criticism from angler groups and many state legislators, primarily those from Long Island, as being a covert tax by the state, intended to offset steep cuts in the state budget. Two bills calling for the repeal of the license introduced to the State Legislature, both by East End lawmakers, have failed to gain support from upstate legislators whose constituents are not impacted by the requirement.

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Nice job by the Town Trustees!
By Terry (380), Southampton on Dec 16, 10 12:17 PM
maybe make that a thrilled lead Counsel for the Towns, our own "Joe Lombardo" too.
By fix-it-now (216), sag harbor on Dec 16, 10 2:15 PM
so if i fish at the point or hither hills or napeague i need a license? where, exactly, will i need one and not need one. Is the cofusion really worth the $10?
By fishy (92), East Hampton on Dec 16, 10 4:03 PM
I don't think its an issue of $ but it would pave the way for all the rights given to us by the Dongan patents to be over ruled.
By greenmonster (20), southampton on Dec 16, 10 9:07 PM
Interesting that increased fee revenues could have motivated the DEC decision. It is no secret that the (soon to be) last administration (accidental governor Paterson) has gutted environmental programs in the state & fired the DEC commissioner Pete Grannis for speaking out about it. ALSO, the huge wave of retirements & new (unexperienced) hires a few years ago has put in place alot of questionable decision makers at DEC. Stay strong & keep fighting!
By East End 2 (151), Southampton on Dec 16, 10 6:51 PM
By Turkey Bridge (1979), Quiogue on Dec 16, 10 7:55 PM
Maybe they can eliminate all the fees for every other licence and permit that they require!
By jose1 (28), southampton on Dec 17, 10 8:18 AM
Where do I begin -- first off back when Colonial Gov. Dongan penned his patent there was virtually no such thing as saltwater sportfishing. So can commercial baymen piggyback on this ruling? Can those of us who work in town waters sue for retroactive refunds of our DEC license fees? And there's the phrase "not the property of individuals." Private property is exempt from the Dongan Patent -- but the Trustees have always said that they have their rights because they are a private and not a public ...more
By snarko77 (49), Brookhaven on Dec 19, 10 7:14 PM
The state will just withold the amount of money they would have gotten from those licenses, Then the towns will need to have thier own license fees to make up for that lost revenue from the state. Court decision doesn't change a thing.
By Walt (292), Southampton on Dec 26, 10 9:17 AM
Walt "Court decision doesn't change anything."

All the recent decisions are meaningless because all of them are under appeal. The entire issue of Trustee jurisdictions under Colonial Patents will be decided at some higher level than the local Supreme Court. That is really a misnomer as it is the next to lowest level of jurisdiction in the State. The Towns that got added in and now enjoy exempt status from State control of their waters have had numerous rulings against them on this very ...more
By snarko77 (49), Brookhaven on Dec 27, 10 1:20 PM