State Court Strikes Down Fishing License, Victory for East Hampton Town Trustees

The New York State Supreme Court struck down a state saltwater fishing fee Tuesday, marking victory for East Hampton and seven other towns that challenged the imposition of a $10 yearly fishing license.

At the heart of East Hampton's challenge is the Dongan Patent, a 1686 Colonial land grant protecting the right to fish in town waters.

"We're all very pleased and very excited. It's always great to have a victory," said Diane McNally, who leads the . She called it a "stepping stone" to more changes. 

"In many respects the authority of the trustees and the authorities and the ability of the local municipalities, whether it's trustees or town, to regulate themselves, that ability is infringed upon by the higher levels of government like the state and the feds," she said.

The law would have required all fisherman older than 16 to obtain a saltwater fishing license from the state Department of Environmental Conservation for $10 each year. Though the $10 fee might have seemed like a nominal price to fish in the waters, McNally said, "You can be sure that fee is going up."

"The sad part is anybody who did buy a permit lost their money. You can be guaranteed the state won't give it back to them. Some of them paid $400 for a lifetime permit."

According to Aphrodite Montalvo, a spokesperson for the State Department of Environmental Conservation, the DEC is still reviewing the court's decision, but intends to appeal.

Even for those who do not consider themselves fishermen, this was an important victory, McNally said. Under the state mandate, "Imagine you have a cousin or a grandfather, a family member or friend, who comes to town for the weekend and you want to go throw a line off of Three Mile Harbor dock. Well, you can't," under the state mandate before the suit, "because you didn't think to go get a license at Town Hall during normal business hours."

Joining with East Hampton Town in its case against the state was Southampton, Shelter Island, Brookhaven, Southold, Huntington and Oyster Bay. Joseph Lombardo, the Southampton senior assistant town attorney, served as lead counsel for the plaintiffs.

The decision, by Justice Patrick Sweeney of the state supreme court in Islip, states that the fee violates the rights of the people in towns under the jurisdiction of the Dongan Patent and similar land grants, "and may not be enforced upon those who seek to fish in the waters regulated by the respective towns."

"If we had not challenged this state law, we would have seen a continuous erosion of town rights to regulate their waters, a scenario which we were just not willing to accept," Lombardo was quoted as saying is a press release.

"The state's rationale for the saltwater fishing license was simply to collect statistical data for the federal government," the Sweeney wrote in his decision. "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."

Sweeney went on to say, "The rationale advanced by the state in this action that it may issue a saltwater fishing license to apparently save taxpayers from a federal registry free which may be higher than the state would charge is not a sufficient reason to interfere with the jurisdiction of the respective towns."

Towns outside of Nassau and Suffolk counties will still be subject to the license requirement and fee.

"The state supreme court saw right through the rationale of the state of New York in enacting this law," state Assemblyman Fred W. Thiele Jr. (I-Sag Harbor) said in a press release Thursday. "This ill-considered law went far beyond what was required by federal law relating to the collection of statistical data and invaded the home rule powers of the Town Trustees guaranteed by the Dongan Patent. The only reason for this law was to impose a tax for the privilege to fish."

Thiele has introduced legislation to repeal the license and replace it with a free, one-time registration requirement.

McNally said the victory put the patent back into the public record.  "We're just going to keep moving forward. The next issue could be shellfish regs, or their fishing limitations, whether its size, quantity whatever else."

Montalvo added, "Although the decision lifts the state fishing license requirement for fishing in the marine waters of the 7 plaintiff towns," she said. "it does not remove the federal registry requirement.  As of January 1, 2011, any person fishing in the marine waters of the 7 plaintiff towns who does not possess a state marine fishing license must carry proof that they have registered with the National Saltwater Angler Registry."

Correction: An earlier version of the story misstated when the fee for a saltwater fishing license was imposed. The fee took effect Oct. 1, 2009.