Southampton - Saltwater fishermen on the East End will be able to cast their lines without securing a permit from the state this week as they have for more than 300 years while their Town Trustees head to State Supreme Court to uphold the right to fish free in town waters.

Fishermen have been throwing their lines in the waters on the East End since colonial times when the right to fish free was granted.

A newly enacted state law requiring residents to obtain saltwater fishing licenses scheduled to go into effect on October 1 was rolled back at the midnight hour on September 30 when attorneys representing three of the five East End towns affected by the ruling headed to court vowing to uphold the Dongan and Nicolls Patents. The Dongan Patent dates back to 1686. The document gives control of town waters to the Trustees in both East Hampton and Southampton Towns. The Nicolls Patent gives similar authority to the Shelter Island Town Trustees. The courts have upheld the validity of these documents numerous times in decisions handed down over the years as they were challenged.

Judge William Rebolini ruled in favor of the request for a Temporary Restraining Order (TRO) submitted by attorneys for Southampton, East Hampton and Shelter Island Towns on Wednesday afternoon after hearing preliminary arguments from the towns as well as from attorneys representing the state.

The Trustees joined forces earlier this year united in their opposition to the state law. The law was enacted by the state legislature as a line item in the budget passed in April 2009. New York State Assemblyman Fred Thiele (R-Sag Harbor) opposed the law along with State Senator Ken LaValle (R-Port Jefferson). Thiele noted the license requirement should have been enacted as a piece of freestanding legislation rather than as a line item after the Trustees voiced their objection to the new fees last Spring. The fee was enacted as part of the states' on-going effort to generate revenue from licensing fees to close a budget gap. Money collected from the sale of salt water fishing permits is expected to generate an estimated $2.5 million to $3 million for the state. The money will be paid into the state's general fund. It is unlikely that any of this revenue will make its way to the East End according to town officials who have been in contact with Pete Grannis, the commissioner of the New York State Department of Environmental Conservation (DEC). The DEC will administer the program if the town's efforts to overturn the state are unsuccessful in court. Violators will be prosecuted in town justice courts.

"It is our mandate to uphold the Dongan Patent," Southampton Town Trustee Eric Shultz said on Wednesday morning as he headed to court. "Our citizens have the right to fish free in this town. We can't back down."

Southampton Town staff attorney Joseph Lombardo represented the town joined by attorneys John Courtney of East Hampton and Laurie Dowd of Shelter Island.

The Trustees mandate is to preserve and protect the town waters for all its residents.

The towns argued that the state did not have the right to regulate fishing in their waters citing the Dongan Patent in effect in Southampton and East Hampton Towns. The Nicolls Patent in effect in Shelter Island was also cited. Lombardo pointed to numerous legal decisions made over the years upholding the Dongan Patent. He cited the New York State Constitution in his arguments as well pointing to Article 1, Section 14, a provision that establishes the state's recognition of common law and colonial documents such as the Patents at issue.

Attorneys for New York State maintained the license law was enacted in an effort to comply with mandates from the federal government requiring more extensive data gathering so the National Marine Fisheries Council could monitor and regulate fishing along the Eastern Seaboard. These mandates do not call for the imposition of a permit fee. "No one objects to data gathering and conservation methods," Shultz said. Regulations are fine but permit fees are not according to opponents of the state law.

Annual permits scheduled to have gone into effect on October 1 cost $10 a year for town residents.

While the fee may seem nominal the Trustees fight is about both the money and principal. "I haven't spoken to a single person who is in favor of this," Shultz said. Fishermen were angered by the license requirement as they headed into the stripped bass season faced with the prospect of fines or arrest if they didn't secure a permit that would run for three months from October 1 to December 31.
The DEC has not spelled out the details concerning enforcement as the deadline approached this week.

Southampton Town Clerk Sundy Schermeyer in her office at Town Hall as she discusses the cost of complying with the new state law. Photo by Andrea Aurichio

"The state is going to give us 50 cents to process each permit," Southampton Town Clerk Sundy Schermeyer said. "That doesn't even cover our costs. How do I implement this if the state imposes this on our residents? We are unique on the East End. We are surrounded by water. This could mean thousands upon thousands of requests for permits. We are being asked to raise funds to close the state's budget gap at town expense."

Schermeyer suggested town residents acquire their fishing permits directly from the DEC by going to the state's website at www.dec.ny.gov/permits/28941.html or by calling the DEC at 866-933-2257. "Going to the state will save the town money," the town clerk said. "This is an under-funded mandate," Shultz said.

"You know that $10 is going to end up going up to $50 in a few years if this goes into effect," Shultz said. "The state never lowers these fees." Opponents also point to the ripple effect of charging fishermen in an area where recreational saltwater fishing is a mainstay of the economy. Then there are those who recall going out fishing with their father or grandfather as one of their happiest childhood memories. "It would be a shame to lose that," State Senator Ken LaValle said several times as he spoke out against the law.

Thiele and LaValle are pushing for a repeal of the license fee at the state level as the Trustees' attorneys prepare to return to court later this month. "A lot can happen between now and the end of the year," Shultz said pointing to the upcoming November elections that could change the composition of the state legislature.

Cost conscious town officials in Southold Town declined to join in the lawsuit citing their reluctance to commit town funds to pay legal fees. They wrote a letter in support of the action but did not support their Town Trustees request to participate in the lawsuit. "Our total cost so far is $140 for filing fees," Lombardo said.

The towns of East Hampton, Southampton and Shelter Island will be represented by in house council using their own town attorneys to argue the case. They are requesting a declaratory judgment. Lombardo expects the case to move to a speedy resolution. Attorneys for both sides will appear before Judge Patrick Sweeney later this month. In the meantime the time honored East End tradition of hanging a sign on the door that says "gone fishing" will continue free of charge.

"It is a way of life," Schermeyer said. "This affects everyone from snapper fishermen on up."