Town wins against state fishing license

Local anglers, like Mike McConnell and Larry Winston, need no state license to fish in town waters, a judge ruled this week.

A New York State marine fishing license was shot down in state court Tuesday, a victory for Shelter Island and six other Long Island towns that challenged it.

State Supreme Court Judge Patrick A. Sweeney ruled that the state law requiring a fishing license for recreational saltwater anglers “is in violation of the rights of the people of the respective towns and may not be enforced upon those who seek to fish in the waters regulated by the respective towns.”
Shelter Island, East Hampton and Southampton fought enforcement of the Department of Environmental Conservation (DEC) license from its October 1, 2009 enactment, filing suit and winning an immediate stay and later an injunction against the license, which costs $10 annually and is required of all saltwater anglers 16 and older. Later the towns of Southold, Brookhaven, Huntington and Oyster Bay joined the suit.

The court rejected the state’s defenses: that it has sole jurisdiction to regulate fishing and that the saltwater fishing license was necessary to collect statistical data per federal requirements. The 2006 reauthorization of the Magnuson-Stevens Act mandated the establishment of a federal registry of recreational fisherman angling for certain species. States with their own programs are exempt from the federal registry, which is authorized to go into effect January 1, 2011.

“The towns do not challenge the state’s right to enact regulations” such as the size of fish caught or number kept, Judge Sweeney determined. “However, in this case the state is not attempting to regulate fishing but is seeking only to collect statistical data,” and a license is not necessary to do that.
“The federal government does not require individuals to be licensed,” Judge Sweeney noted, “only that each state provide certain identifying information.”

Judge Sweeney also rejected the state’s argument that its license would be less costly than the federal registry: “The rationale advanced by the state that it may issue a saltwater fishing license to apparently save the taxpayers from a federal registry fee, which may be higher than the state would charge, is not sufficient reason to interfere with the jurisdiction of the respective towns.”
The implications of the ruling may reach beyond the towns. Judge Sweeney also decided that the state exceeded the limits of the federal mandate by requiring a license for all migratory fish; the federal registry requires information on “anadromous” fish only, those that spawn in fresh water but live in saltwater such as striped bass, white perch and Atlantic salmon. Of the fishing license law, the judge wrote, “Clearly the statute went beyond the state’s jurisdiction … by including fishing which was not mandatory or contemplated by the federal registry.”

“It’s a good opinion,” Town Supervisor Jim Dougherty said after the ruling. “I’m deeply gratified that Judge Sweeney upheld the towns’ rights under our colonial patents,” particularly in referring to the Nicolls patent as conferring the same rights of title and control as other 17th century crown patents — “to the land within their bounds including land underwater.”

The matter is already on appeal, Mr. Dougherty said, adding, “Obviously, the DEC is taking this very seriously.”

When asked if the ruling could have ramifications beyond the fishing license law, Supervisor Dougherty said he’d have to study the opinion, but perhaps it could. Last year, the DEC acknowledged the town’s right to include some pesticide restrictions within its wetlands code, a reversal of its position that it had sole jurisdiction over any pesticide-related matters. “All these things are filtering towards us being able to take charge of our own destiny,” Mr. Dougherty said.

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