| Brookhaven Baymen's Assn., Inc. v Town of Southampton |
| 2011 NY Slip Op 05646 [85 AD3d 1074] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Brookhaven Baymen's Association, Inc., et al.,Appellants, v Town of Southampton et al., Respondents. |
—[*1] Michael C. Sordi, Town Attorney, Southampton, N.Y. (Joseph Lombardo of counsel), forrespondents.
In an action, inter alia, for a judgment declaring that Local Law No. 21 (2008) of the Town ofSouthampton, chapter A340 of the Town Code of the Town of Southampton, and portions ofchapter 278 of the Town Code of the Town of Southampton are unconstitutional, void, andunenforceable, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Mayer,J.) dated August 21, 2009, which denied their motion for a preliminary injunction enjoining theenforcement of the challenged laws and granted the defendants' cross motion pursuant to CPLR3211 (a) (7) to dismiss the complaint for failure to state a cause of action.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thedefendants' cross motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure tostate a cause of action and substituting therefor a provision denying the cross motion; as somodified, the order is affirmed, without costs or disbursements.
The plaintiffs are commercial fishermen and women and an association of baymen andwomen who are not residents of the Town of Southampton. They commenced this action, interalia, for a declaratory judgment against the Town of Southampton, members of the Town Boardof the Town of Southampton (hereinafter the Town Board), and the Trustees of the Freeholdersand Commonalty of the Town of Southampton (hereinafter the Trustees) (hereinafter collectivelythe defendants), challenging, on procedural and substantive grounds, local legislation passed bythe Town Board that, inter alia, regulates who may take, and the manner of taking, "shellfish"from waters within the Town. Under Local Law 21 (2008) of the Town of Southampton(hereinafter Local Law 21), amending ch 111, § 37 of the Town Code of the Town ofSouthampton (hereinafter the Town Code), "[e]very person shall comply with the regulations asprovided in the Rules and Regulations for the Management and Products of the Waters of theTown of Southampton promulgated by the Board of Trustees of the Freeholders andCommonalty of the Town of Southampton in all matters." The Rules and Regulations for theManagement and Products of the Waters of the Town of Southampton, promulgated by the Boardof Trustees (hereinafter the Trustees' Rules and Regulations), which are included as an appendixto the Town Code (see Town Code, ch A340), define "shellfish" to include crabs,conchs, and shrimp, and prohibit anyone from taking them from "Town waters" unless he or sheis a freeholder, resident, temporary resident, or [*2]a taxpayer,and has obtained a permit from the Town Clerk. In addition, the Trustees' Rules and Regulationsregulate the manner of taking "shellfish" by, for example, prohibiting the placement of a "fishpound, fyke, trap, pot or other anchored device[ ] for the taking or keeping of shellfish, fish, eels,crabs, lobsters or conchs" in Town waters unless authorized by written permission of theTrustees, with such permission available only to residents and freeholders (Trustees' Rule andRegulations, art V, § 1 [C]). Although the Trustees' Rules and Regulations authorize only a$50 fine, recoverable in a civil action, for a violation thereof, as set forth in Local Law 21, theTown may impose a fine and/or imprisonment for a violation (see Town Code §111-39). Many of the provisions in the Trustees' Rules and Regulations are also found in chapter278 of the Town Code, including restrictions on those who may take "shellfish" from the Townwaters to freeholders, residents, temporary residents, and taxpayers who have obtained a permit(see Town Code §§ 278-3, 278-4).
The Trustees are successors to the original trustees who, in 1686, were granted, by ThomasDongan, King James II's governor of the province of New York, a confirmatory charter or patentover the land, the lands under the water, and the waters within the boundaries contained in thegrant (hereinafter the Dongan Patent) (see People ex rel. Howell v Jessup, 160 NY 249,258-259, 261-262 [1899]; People vLagana, 13 Misc 3d 110, 111 [2006]). Thus, under the Dongan Patent, title to andsovereignty over the land, the land under the waters, and the waters were vested in and conferredupon the original trustees (see People ex rel. Howell v Jessup, 160 NY at 265). Thisincluded the products in the land under the waters, such as shellfish (see People v Miller,235 App Div 226 [1932], affd 260 NY 585 [1932]; Sloup v Town of Islip, 78Misc 2d 366 [1974]). However, the original trustees could take no more than the King ofEngland could give (see People ex rel. Howell v Jessup, 160 NY at 268). At the time ofthe grant, the right of navigation and fishing for migratory fish in offshore and tidal navigablewaters, that is, where the tide ebbs and flows, was common to the public (see People vSteeplechase Park Co., 218 NY 459, 472-473 [1916]; People ex rel. Howell vJessup, 160 NY at 265; Roe v Strong, 107 NY 350, 358 [1887]; Brookhaven vStrong, 60 NY 56, 67 [1875]; Gould v Hudson Riv. R.R. Co., 6 NY 522, 539-540[1852]; Sloup v Town of Islip, 78 Misc 2d at 368). Thus, the Dongan Patent did not grantto the Trustees the exclusive rights to use the navigable waters in the Town or to take migratoryfish from them. After the American Revolution, the State succeeded to those exclusive rights(see People v Steeplechase Park Co., 218 NY at 473; Melby v Duffy, 304 AD2d33, 37 [2003]; cf. Navigation Law § 2 [4]).
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]; Sokol v Leader, 74 AD3d 1180[2010]).
In this instance, the plaintiffs allege that the Town has impermissibly prohibited anyone butfreeholders, residents, temporary residents, or taxpayers who possess a permit issued by theTown from taking crabs, conchs, and shrimp from the navigable waters of the Town. While thechallenged local legislation classifies crabs and conchs as "shellfish," the defendants concede thatcrabs and conchs are considered migratory fish (see Town Code § 278-3). Sincethe Dongan Patent did not grant the Trustees the authority to regulate who may take migratoryfish such as crabs and conchs from navigable waters, and only the State "retains the authority toregulate and control the right of fishing for migratory marine fish" (Melby v Duffy, 304AD2d at 37), the complaint states a valid cause of action. To the extent that the manner in whichthe plaintiffs' attempts to remove migratory fish from the waters requires them to disturb theunderwater lands, the Trustees, as the title owners to the underwater lands, may prohibit theplaintiffs and other persons not enumerated in Local Law 21 from trespassing on the Trustees'property. The placement of fishing gear on the underwater lands would constitute a trespass, andthe Town Board is empowered to pass an ordinance prohibiting a trespass on both public andprivate property (see Town Law § 130 [19]). While the defendants contend that theonly way in which crabs and conchs can be removed is by raking or digging them out from theland under the waters, thereby committing a trespass, at this point, on a motion pursuant to CPLR3211 (a) (7), that fact has not been established (see generally [*3]Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]; Sokol v Leader, 74 AD3d 1180[2010]; cf. People v Miller, 235 App Div at 232-233).
Since the record is not sufficiently developed at this juncture to permit us to determinewhether the plaintiffs' methods of taking migratory fish constitute a trespass, we need not addressthe defendants' contention that Town Law § 130 (19) authorizes it to enact a local law orordinance, prohibiting a trespass on private or public property, that may be inconsistent with theprovisions of the Environmental Conservation Law that vest exclusive regulatory authority in theState over the harvesting of migratory fish from the waters of the State. For the same reason, weneed not address the plaintiffs' contention that Local Law 21 is void by virtue of its inconsistencywith the Environmental Conservation Law.
With respect to the plaintiffs' procedural challenges to the legislation, it was not improper forthe Town Board, in passing Local Law 21, to incorporate the Trustees' Rules and Regulations byreference (see People v Shore Realty Corp., 127 Misc 2d 419, 421 [1984]; see alsoConrad v Home & Auto Loan Co., 53 AD2d 48, 54 [1976]). However, the Town Boardfailed to establish that Local Law 21 is not an open-ended delegation (see People v Mobil OilCorp., 101 Misc 2d 882, 886-887 [1979]). As currently drafted, Local Law 21 permits theTrustees, from time to time, at their prerogative, to amend their regulations, and, by virtue ofLocal Law 21, compliance with them would be required, without the Town Board ever havingreviewed and voted on the amended regulations.
Accordingly, the Supreme Court should not have granted the defendants' cross motionpursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action.
To be entitled to a preliminary injunction, the plaintiffs were required to establish, by clearand convincing evidence, a likelihood of ultimate success on the merits, irreparable injury absentthe granting of the preliminary injunction, and a balancing of equities in their favor (see Doev Axelrod, 73 NY2d 748, 750 [1988]; Gluck v Hoary, 55 AD3d 668 [2008]). Since the record is unclearas to whether the plaintiffs can remove crabs and conchs without disturbing the land under thewaters, they have not demonstrated a likelihood of ultimate success on the merits. Further, thepossibility of irreparable injury is unclear and a balancing of the equities does not favor any oneparty. The Trustees, through the Town, are seeking to prevent nonresidents from trespassing ontheir land and, if the only way the plaintiffs can remove crabs and conchs is by disturbing theland under the waters, the Town may prohibit the plaintiffs from doing so. Also, the Townalleges that, when the plaintiffs are fishing for crabs and conchs, their fishing gear will catch trueshellfish, which belong to the Trustees. On the other hand, if the plaintiffs can show that they canremove crabs and conchs without disturbing the underwater lands, only then is the Towndepriving them of their livelihood. Under these circumstances, the plaintiffs' motion for apreliminary injunction was properly denied. Angiolillo, J.P., Belen, Chambers and Roman, JJ.,concur. [Prior Case History: 24 Misc 3d 1239(A), 2009 NY Slip Op 51816(U).]