ORDERED that the motion by the plaintiffs for a preliminary injunction and the motion by the defendant for an order dismissing the complaint are determined as follows.

In 2009, the New York State Legislature enacted Environmental Conservation Law § 13-0355 which requires that all anglers over the age of 16 obtain a recreational marine fishing license for a fee in order to "take fish from the waters of the marine and coastal district and to take migratory fish of the sea from all waters of the state." The statute was purportedly enacted in response to amendments by Congress to the Magnuson-Stevens Fishery Conservation and Management Act (16 USC § 1801 et seq.). The Act was amended to add a requirement for the registration of individuals who engage in recreational fishing (see 16 USC 1881[g][1]) in order to "improve the quality and accuracy of information generated by the Marine Recreational Fishery Statistics Survey" (16 USC 1881[g][3[A]]). However, the Act exempted federal registration for all recreation fisherman that are "licensed, permitted, or registered under the laws of a State" (16 USC 1881[g][2]).

The plaintiffs commenced this action for a judgment declaring that any person engaged in recreational fishing in the territorial salt waters of the Towns are exempt from the requirements of ECL 13-0355. The plaintiffs contend that various 17th Century Crown Patents provide them with sole and exclusive right over the fisheries in their respective jurisdictions and therefore the State does not have the authority to require a license within their respective boundaries. This Court previously granted motions on consent permitting the Town of Brookhaven, the Town of Oyster Bay and the Town of Southold to intervene in this case. In addition, a separate action by the Town of Huntington has been joined with this action. The plaintiffs move for a preliminary injunction enjoining the State from enforcing the statute within their jurisdictions.

The defendant, Commissioner of the New York State Department of Environmental Conservation, moves to dismiss the complaint asserting that the Towns do not have the right to regulate migratory marine fish. The defendant contends that such fish remain the property of the State and are subject to State regulation.

Section 13-0355 entitled "Recreational Marine Fishing License" provides in pertinent part as follows:

1.Definitions of license; privileges.

a.A recreational marine fishing license entitles the holder who is sixteen years of age or older to take fish from the waters of the marine and coastal district and to take migratory fish of the sea from all waters of the state, except as provided insection 13-0333 and 13-0335 of this title. A recreational marine fishing license is effective for a license year beginning January first and ending December thirty-first.

. . .

2.General Provisions. [*2]

a.The privileges of a recreational marine fishing license may be exercised only at the times and places, and in the manner and to the extent, permitted by the fish and wildlife law and applicable regulations of the department.

. . .

4.Fees. Each applicant for a recreational marine fishing license shall pay to the issuing officer a fee according to the license issued and the residence or other qualification of the applicant, as follows:

LicenseFee

(1)Recreational marine fishing$10.00

(2)Seven-day recreational marine fishing$ 8.00

(3)One-day recreational marine fishing$ 4.00

5.b.Recreational fishing passengers on a marine and costal district party or charter boat licensed pursuant to section 13-0336 of this title may take fish as if they held a recreational marine fishing license.

6.Recreation marine fishing license data.

a.The department is authorized to collect data on holders of recreational marine fishing licenses, which shall include but not limited to, a licensee's name, address, and date of birth.

b.License holder data collected by the department or available to the department shall be confidential and shall not be disclosed except as required to comply with section 401(g) of the Magnuson-Stevens fisheries management and conservation act (16 U.S.C. 1881), as may be amended from time to time, or by court order, except that the department may release or make public any statistics in an agregate or summary form which does not make it possible to identify any person who submits such data. The department may prescribe such procedures as may be necessary to preserve such confidentiality.

The Federal government pursuant to the Magnuson-Stevens Fishery Conservation and Management re-authorization Act (16 U.S.C.§1801 et seq.) sought to develop recommendations to implement standardized fishing vessel registration as well as an information management system on a regional basis.

The Act provides the following with respect to fishery information:

109-479

(g)Recreational Fishery

(1)Federal Program - The Secretary shall establish and implement a regionally based registry program for recreational fishermen in each of the 8 fishery management regions. The program, which shall not require a fee before January 1, 2011, shall provide for -

(A)the registration (including identification and contact information) of individual who engage in recreational fishing - [*3]

(i) in the Exclusive Economic Zone;

(ii) for anadromous species; or

(iii) for Continental Shelf fishery resources beyond theExclusive Economic Zone; and

(B)if appropriate, the registration (including the ownership, operator, and identification of the vessel) of vessels used in such fishing.

(2)State Programs - The Secretary shall exempt from registration under the program recreational fishermen and charter fishing vessels licensed, permitted, or registered under the laws of a State if the Secretary determines that information from the State program is suitable for the Secretary's use or is used to assist in completing marine recreational fisheries statistical surveys, or evaluating the effects of proposed conservation and management measures for marine recreational fishers.

The basic purpose of the Federal legislation is to collect statistical data from the various States presumptively to have accurate fishing statistics for its records, similar to what the Census survey does with respect to the public at large.

The Towns challenge the State's authority to enforce Section 13-0355 of the Environmental Conservation Law within their territorial jurisdictions. In substance they argue that the Towns have sole jurisdiction over the fisheries within their respective Towns by virtue of various patent grants including the "Dongan Patent" of 1686. The Town of Southampton refers to the Laws of 1831, c.283 which states the following

"5. The said Trustee shall have the sole control over all the fisheries, fowling, sea-weed, waters, and the production of the waters within the said Town not the property of individuals, and all the property, commodities, privileges and franchises granted to them by the Charter of Governor Dongan one thousand six hundred and eighty-six, except so far as abrogated, changed, and altered by laws of ths state, passed in conformity to the Constitution and not now belonging to individuals, nor to the proprietors by virtue of an Act entitled "An Act relative to the common and undivided lands and marshes in Southampton, in the County of Suffolk," passed April 15th, 1818; and they shall have power to make rules, orders, and bylaws for the management thereof and the regulation of their affairs."

The legislature has the power to regulate and control the right of fishing in the public waters of the State (see Lawton v Steele, 119 NY 226 affd 152 US 133). The original 17th Century Crown Patents, including the Nicolls, Dongan and Fletcher patents, gave certain Long Island townships title to the land within their bounds including the land under water (see O'Brien v Town of Huntington, 66 AD3d 160, 164 [2d Dept 2009]; Melby v Duffy, 304 AD2d 33 [2d Dept 2003]; Nance v Town of Oyster Bay, 23 AD2d 9 [2d Dept 1965]). The townships' ownership and control over these lands and water antedates the State itself and has been repeatedly upheld (see e.g. Lowndes v Huntington, 153 US 1; Trustees of Brookhaven v [*4]Strong, 60 NY 56; Rottenberg v Edwards, 103 AD2d 138 [2d Dept 1984]).

Although navigable waters are generally subject to the sole jurisdiction and control of the State of New York (see Navigation Law § 30), the Legislature has excluded "tidewaters bordering on and lying within the boundaries of Nassau and Suffolk counties" from the definition of navigable waters of this state (Navigation Law § 2[4]) to accommodate the colonial land grants which conferred ownership and control over tidal waterways to certain townships (see Melby v Duffy, supra). The statutory exemption has consistently been construed as authorizing the Counties of Nassau and Suffolk and their respective townships to legislate and control the use of such lands and waterways (see Melby v Duffy, supra; Rottenberg v Edwards, supra).

The facts of this case are not dissimilar to the issues raised in State vs. Trustees of Freeholders and Commonalty of Town of Southampton 99 AD2d 804 [2d Dept 1984]. In that case, issues were presented as to whether or not the legislation imposed by the State through the Department of Environmental Conservation pre-empted local legislation affecting fishing in the Town of Southampton.

While that case involved freshwater fishing within the Town of Southampton, the Appellate Division stated as follows:

"The defendants herein are the successors to the original trustees of the freeholders and commonalty of the Town of Southampton whose proprietary rights to certain lands and waters of the Town of Southampton and their right to legislate and control the same as a body politic is derived from antique, royal land grands and patents which have been repeatedly confirmed and upheld throughout the history of this State for over 300 years by both the framers of the State Constitution and the Legislature despite various specific attacks upon such authority (see People v Miller, 235 App Div 226, supra, and cases therein cited and discussed). Though we recognize the fact that provisions contained in ancient land grants have been held under certain circumstances to be less than sacrosanct (see Demarest v Mayor of City of NY, 74 NY 161; People ex rel. Squires v Hand, 158 App Div 510), the grant of authority to the defendants, confirmed by the decisions of the courts of this State, recognize a private right of ownership to property administered by defendants as a body politic. Such property rights in the people of the Town of Southampton would remain and exist even if the town's existence as a municipal government were terminated entirely."

The Court further opined:

"Though the State asserts its desire as parens patriae to protect fish and fry and to conserve our natural resources, which is a seemingly valid exercise of its police powers, the record before us does not establish, as a matter of law, that this consideration is valid one. "Fish running at large . . . ferae naturae, and while in their natural element unconfined, are the public property of all the people of the State in common, and no person can acquire property by taking and reducing them [*5]to actual possession: (Matter of Fishway in Town of Deposit, 131 App Div 403, 410; cf. Smith v Odell, 234 NY 267, 270-272)."

The Commissioner of the Department of Environmental Conservation in lieu of filing an answer to the complaint moves to dismiss the complaint or in the alternative for summary judgment. The Commissioner argues that the fundamental purpose of the statute was to collect statistical data from recreational anglers which the Federal government was going to do under the Magnuson-Stevens Act. DEC argues that the licensing program was designed to save the taxpayers money since the Federal government's proposed "registration fee" might be twenty-five dollars as opposed to the State ten dollar licensing fee.

The problem with the Commissioner's argument is that the Federal government simply wants to collect statistical data on fishing. There was no mandate to have a saltwater fishing license. The Magnuson-Stevens Act refers to collection of data solely on "anadromous" fish. Section 13-0355 defines fish as "migratory fish." The term is defined in DEC regulations as ". . . both catadromous and anadromous species of fish . . . " hence going beyond the requirements of the Federal statute (see "Definitions" New York Recreational Marine Fishing Regulations Guide 2009-2010). Indeed, upon oral argument of these motions, counsel for the DEC agreed that the statistical data the Federal government seeks could have been gathered under the present Motor Vehicle License Statute without the need for a separate marine fishing license. It was stated that while this was a viable option the State legislature wanted to impose a separate license fee.

There are sufficient questions of fact concerning exactly what type of fish are included within the legislation requiring a license. In addition, there are issues of fact as to what specific regulations each of the Towns have exercised in their respective jurisdictions as it relates to fishing. Further, it is unclear to this Court based upon the affidavits submitted on the motion as to the exact boundaries or waterways that the respective Towns claim they have exclusive jurisdiction to regulate versus the State's general right to regulate fishing.

The Towns do not challenge the State's right through its Department of Environmental Conservation to regulate fishing in general i.e., by the various Regulations already in place under the Environmental Conservation Law such as the size of fish as well as the limitation of how many fish may be caught by an angler as well as seasonal limits of when fish may be taken. The Towns argue that any license to be issued for fishing in waters within their jurisdictional limits could only be issued by the Towns and not the State.

The present stay imposed by the Court and consented to by the various parties only enjoins the DEC from enforcing the law. The DEC has not been prevented from issuing licenses statewide and that includes the jurisdiction of the Towns. Indeed the statistical data the DEC has sought has been and continues to be available to the DEC so that information is readily available to be given to the Federal government. This is acknowledged by the DEC in a letter to the [*6]Federal government requesting that the State of New York be exempt from the National Statistical Angler Registration which noted the Court has not exempted any persons from obtaining a license (see exhibit "C" of DEC's motion to dismiss).

An early trial concerning all of the factual issues will narrow the issues for the Court to eventually rule on the declaratory judgment. In the meantime, there is absolutely no prejudice to the DEC by keeping the present stay in effect since all of the statistical data they say they need to exempt the State of New York from the Federal Registry is being compiled and is readily available for the Federal government's purposes. The DEC's position, in effect, is that the Statute was never intended to impose penalties upon anglers but was simply designed to collect statistical data for the Federal government.

Accordingly the State's motion to dismiss or in the alternative for summary judgment is denied and the Commissioner is directed to file an answer to the complaint within 20 days after service of a copy of this order with notice of entry. A preliminary conference shall be held on June 24, 2010 at 9:30 a.m. at which all counsel are directed to appear. The motion for a preliminary injunction is granted to the extent that the stay contained within the order to show cause is hereby continued until the trial of this action.

The foregoing constitutes the decision and order of the Court.

Dated:______________________________________________________________ _

J.S.C.