Raw wound: watch out when the state sticks its toe into local waters

State and federal insults to local independence have long been a sore point for the Long Island towns, including Shelter Island, that claim exclusive jurisdiction over their own waters and bay bottoms under colonial patents issued more than 350 years ago.

Last week, Shelter Island’s Town Board briefly thought the state might be trying to cross the town’s red line once again — as it did in a big way in 2009 when it ordered all the state’s saltwater fishermen to obtain annual licenses from the Department of Environmental Conservation.

Joining with two other East End towns, Shelter Island sued to quash the licensing requirement within their own boundaries, citing royal patents issued by colonial governors in the name of the king that gave them exclusive control over their own waters and their products. They won in 2010 and the next year the State Legislature passed legislation requiring the DEC to drop the fee for those Long Island towns.

The issue last week was about a slighter but still insidious insult to town jurisdiction, at least in the local view: a fee that Town Councilman Peter Reich said he had never noticed before for DEC permits the town obtains for its own projects. He said he had noticed the fee requirement on state paperwork authorizing drywells the town plans for East Brander Parkway and dredging planned at the town dock on Bridge Street to give the fire department deeper water from which to draft.

Raising the issue at the December 11 Town Board work session, he gave as another example the annual scallop seeding project in local waters, for which the board has budgeted the usual $12,000 for 2013.

“According to the DEC, we can’t spend that $12,000 until we pay them $100,” Mr. Reich said. He suggested that Town Attorney Laury Dowd write a letter to the DEC saying the town wouldn’t pay because of its authority under the Nicolls Patent of 1666.

Town Clerk Dorothy Ogar said at the time that the town never pays permit fees to the DEC, even when past paperwork has indicated they are due, and the DEC has never objected. And this week Mr. Reich said he’d learned from Ms. Dowd that it was a moot issue because the DEC did not expect the town to pay permit fees even though cover letters and instructions may indicate fees are due.

There does seem to be a lot of legal gray area when it comes to the overlap of federal, state and local jurisdiction.
That point was proven in a bigger way last year when the town agreed — despite its legal and political victories — to have local saltwater fishermen register with the state every year through the Town Clerk’s office. The DEC said it would not charge a fee for the registration card that fishermen receive. The state promised to charge no fee for only the first two years of the registration program, which it said was required to keep the federal government from stepping in and requiring it under the latest renewal of the federal Magnuson-Stevens Act , under which data is collected on fishing activities and quotas are set to limit catches and protect fishing stocks.

The Town Board, after struggling with the Hobson’s Choice, decided it was better to deal with the state as long as no fee is charged. What happens if a fee is levied after two years will be another matter.