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Sep 2, 2009 11:18 AMPublication: The Southampton Press

Southampton Town Trustees win suit brought by Brookhaven fishermen

Sep 2, 2009 11:18 AM

A state Supreme Court judge has dismissed a lawsuit brought against Southampton Town and its Trustees by a group of commercial fishermen from Brookhaven who claimed they had a right to use town-owned bay bottoms to catch migratory fish that are otherwise regulated by state environmental conservation laws.

Citing various court rulings—some more than a century old—involving the Town Trustees’ authority, Supreme Court Justice Peter Mayer ruled Friday that the Trustees, as title owners of the bay bottoms within Southampton Town’s boundaries, can exclude non-resident fishermen from anchoring fish traps and nets, even if the traps and nets are being used to catch fish that are regulated only by state law.

Justice Mayer pointed to two federal court cases in the early 1980s, regarding the Trustees’ battles in those years to maintain control over shellfish in their bay bottoms, as confirming that the Trustees hold a sovereign right to control the bottomlands within their jurisdiction as granted in colonial era patents issued by representatives of the King of England in the 17th century.

He noted that the court had upheld the Trustees’ authority to control shellfish populations that live in the bay bottoms because harvesting them requires disturbance to their private property. For the same reason, Justice Mayer ruled, the Trustees may impose limitations on fishing gear attached to the bay bottom.

Attorney J. Lee Snead, who represented the Brookhaven fishermen, said he believes Justice Mayer did not address the fishermen’s main contention, that state conservation law supersedes the Trustees’ authority when it comes to the harvesting of migratory fish species. Mr. Snead said that other case law supports his contention that the Trustees cannot restrict fishermen from harvesting migratory fish within their boundaries.

“Most of the cases that ever talk about the rights of towns under royal charters talk about the public’s right to navigate and the public’s right to fish as paramount to any charters,” Mr. Snead said. “If they can stop commercial fishermen, what is the next step? If the Trustees are arguing that they are just trying to protect their bay bottom from having things anchored in it, are they going to tell recreational fishermen from out of town that they can’t anchor in the bay anymore either? And are Southampton fishermen doing something different when they anchor gear in the bottom that doesn’t disturb it somehow?”

Mr. Snead said he will appeal the decision to the state Appellate Court of the Second Department as soon as the recent ruling is filed.

Southampton Town Trustee Jon Semlear said that he thought Judge Mayer’s decision clearly explained the reasoning behind the Trustees’ authority to limit who used its bottomlands. He said the ruling was a critical one to the Trustees, since firm control over the bottomlands in the town are an overriding mission of the board in its defense of keeping local shellfish populations off limits to fishermen from elsewhere.

“It’s what we stand for,” Mr. Semlear said. “We don’t claim to regulate any kind of migratory fish—that’s not out jurisdiction. But anything that is on the bottom is within our jurisdiction. They are looking to make a crack and open up the floodgates and let everyone in. Thankfully, that crack did not appear.”

The suit was filed in February by the Brookhaven Baymen’s Association after Southampton Town bay constables issued a ticket to a Brookhaven fisherman who had anchored a gill net on the Southampton Town side of Moriches Bay.

The Town Trustees in both South Fork towns draw their ownership and authority over the town bay bottoms from 17th Century decrees by the then governor general of the colony of New York, Thomas Dongan, and authorized by King James II of England.

The Brookhaven baymen argued in court that the Trustees have overstepped the bounds of their authority by requiring residency for the harvesting of migratory fish within their waters, because it violates interstate commerce laws and is superseded by state environmental laws. The Trustees countered that they were not limiting fishermen from harvesting migratory species, only that they were limiting who could use the private property of land owned by all Southampton Town residents to those residents.

The Brookhaven fishermen also claimed that the Southampton Town Board was stepping beyond its own authority when it gave criminal status to violations of Trustees’ bylaws, enabling Bay Constables to issue fines and summonses for violating them. Judge Mayer said that the Town Board was acting within its power to codify the Trustees’ rules and regulations.

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YES ! Way to go SH Trustees ! I told you Brookhaven guys you didn't have a chance. : - )
By PrivateerMatt (390), Weesuck Creek , EQ on Aug 31, 09 7:28 PM
The Trustees have been enforcing their rights under the Dongan Patent for ages. They, not the state, own certain lands under the waters. They enforce these rights solely for us - the Town residents. We all owe the Trustees a great deal for protecting what is rightfully ours. Congrats, and thank you!
By Ms. Jane Q. Public (147), Southampton on Sep 1, 09 8:59 AM
1 member liked this comment
The Judge proclaimed that the Trustees are "a body politic" and not a "a private organization" which he calls a "contradictory description."

So the Trustees are purely a governmental body, according to this ruling. This means, at the very least, that the fact that the Trustees and Bay Constables are making and enforcing laws that govern activities by which they profit -- i.e., commercial fishing and acting as professional hunting and fishing guides -- is a textbook conflict of interest. ...more
By snarko77 (49), Brookhaven on Sep 1, 09 8:33 PM
Snarko, would you walk into your neighbor's kitchen and take the food out of his refrigerator? Please just go home. And stay there.
By SusieD (115), Southampton on Sep 1, 09 9:43 PM
1 member liked this comment
You just proved our point -- you legally cannot keep us out for that reason. It's called protectionism and is illegal -- it is especially illegal for government officials to be personally profiting by it.
By snarko77 (49), Brookhaven on Sep 2, 09 2:51 AM
snarko77: How are the Trustees making a profit? What are they selling? The Trustees are government, there is no profit in government at any level. If you take the time to look at their budget, available on the Town's website, you will see that.

If you Brookhaven people didnt overfish and pollute your waters you wouldn't need to come to Southampton and do it.
By ridiculous (214), hampton bays on Sep 2, 09 8:50 AM
2 members liked this comment
snarko77 , you guys are wasting your time and money.

: - )
By PrivateerMatt (390), Weesuck Creek , EQ on Sep 2, 09 11:53 AM
ridiculous (apt name) -- Are you kidding ...? Your illustrious Trustees are known in local legal circles as a "bayman mafia." They are perpetuating a scheme to create an" illegal zone of commercial exclusivity" keeping fish and crabs that belong to all the people of the State for themselves. And they even say that nonresidents can't fish in the ponds or hunt on the bay without procuring the service of a resident guide -- which the Trustees and Bay Constables are and make quite a bit of money in ...more
By snarko77 (49), Brookhaven on Sep 2, 09 1:40 PM
It is my understanding of the Public Trust Doctrine, which is, in essence, the legal principle stated by Justinian's law-makers and carried through to the Magna Carta, is that any restrictions that "trustees" might impose would be those protective of the resource, and not exclusionary to any human being's use thereof: certainly not based on their "residency" which is such a transient thing. If there is one aspect of the spirit of the doctrine which is incontrovertible and unquestionable, is that ...more
By Tom Rozakis (1), Southold on Sep 2, 09 10:33 PM
"It is all very illegal and will soon be dealt with properly."

So there is no misunderstanding, what I mean is that I believe the courts will soon be giving all this the proper legal scrutiny.
By snarko77 (49), Brookhaven on Sep 3, 09 1:42 PM
There is no case where a judge has ruled against Southampton Town's Dongan Patent.
No precedent : not much hope for winning this case for the BH Bayman's Association.

: - )
By PrivateerMatt (390), Weesuck Creek , EQ on Sep 4, 09 12:11 PM
Private Mat-- t"There is no case where a judge has ruled against Southampton Town's Dongan Patent."

That's "patently" false -- this is the only one you have ever won -- and it won't last long. All this judge did was take a pass knowing it would be appealed no matter how he ruled. Just show his decision to any legal expert -- something you obviously are not.

The only thing Southampton ever established in court is the Trustees existence as a quasi-private entity. And this case quashed ...more
By snarko77 (49), Brookhaven on Sep 4, 09 12:19 PM
snarko77 , you're not going to win. Period . End of sentence . Just ask Gary V. and the rest of the WHB Dunes crew about how they made out in court against the Town and the Trustees.

: - )
By PrivateerMatt (390), Weesuck Creek , EQ on Sep 6, 09 11:16 AM
All of the cases you people claim as "winners" have to do with property rights -- who owns what. That has nothing to do with the system of law that must govern the property in question. Just because your Trustees can prove ownership in trust going back to a 300 year-old Colonial document doesn't mean we go back to that system of law. And even under that archaic system there was no exclusive fishing right conveyed to the "freeholders" of the "common ground." The Trustees have already admitted that ...more
By snarko77 (49), Brookhaven on Sep 6, 09 1:26 PM
So with your reasoning snarko77 then Town shellfish permits will no longer be required and I'll be able to clam where ever I want on Long Island.
I don't think they'll like that too much in Oyster Bay where they put a moratoriam on new commercial permist a few years ago.
By PrivateerMatt (390), Weesuck Creek , EQ on Sep 9, 09 10:10 AM
private matt -- "So with your reasoning snarko77 then Town shellfish permits will no longer be required and I'll be able to clam where ever I want on Long Island."

Shellfishing and finfishing are two different animals in New York. The Towns have jurisdiction to manage shellfishing but not commercial fishing in their waters, the theory being shellfish can't cross Township lines. But even that has been challenged and defeated in the Diemer v Brookhaven case. Township shellfishing exclusivity ...more
By snarko77 (49), Brookhaven on Sep 9, 09 10:52 AM
matt -- btw -- the judge's decision rules out the Trustee's ability to keep NY licensed nonresidents from hand harvesting horseshoe crabs -- no jurisdiction over the crabs, no gear attached to the bottom.
By snarko77 (49), Brookhaven on Sep 14, 09 7:39 PM
Under your "Colonial Patent" theory of fishing rights, an illegal immigrant who rents half a room on the Southampton side of Eastport has more rights to fish on the east side of Moriches Bay than would a duly licensed U.S. war veteran multi-generational fisherman descended from Thomas Dongan himself who buys a house in the Brookhaven portion of Eastport.

Good thinking ....
By snarko77 (49), Brookhaven on Sep 21, 09 9:13 AM