Long Island Fishing License Comes With a Colonial Catch

EAST HAMPTON, N.Y. -- Stuart Vorpahl has waged a lonely battle since 1984 against the state of New York over his right to fish. For refusing to obtain a commercial fishing license, he has been arrested at least four times, once on a dock after a police officer seized 490 pounds of fluke and two lobsters from his 40-foot trawler.

Mutiny on the East End

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Striped bass caught off Long Island's East End took their last breaths.

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Now, others here on Long Island's East End are joining the 69-year-old Mr. Vorpahl's cause. And they are supporting his argument, based on a 313-year-old colonial-era document, called the Dongan Patent, that conferred responsibility for town land and waterways on locally elected trustees.

"I keep telling everyone, 'Your right to go fishing is right here!'" he shouts, holding up a copy of the document in his kitchen cluttered with files and books on the subject. "But the courts don't want to open this can of worms."

All of his cases over the years were dismissed or ended in mistrials, largely without the judges considering the merits of the Dongan Patent. In one instance, the court was unable to form a jury because Mr. Vorpahl is too well-known. His family has lived for centuries pulling striped bass from these waters.

But this time looks different.

Six Long Island towns, including Southampton, Shelter Island and East Hampton, have joined in a lawsuit against the state's Department of Environmental Conservation, charging that it has no authority to require fishing licenses without their consent. At least three other towns may join.

The fracas began on Oct. 1, when New York, in response to new federal policies, required for the first time that recreational anglers have a license to fish in saltwater. The state has required a commercial license since 1984.

 

Long Island Fishermen vs. the State of New York

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New York has passed a law requiring recreational fishermen to get a permit, which has Long Island anglers up in arms. WSJ's Christopher Rhoads reports.

Since there are many more recreational than there are commercial fishermen, the growing resistance has the feel of mutiny. Though the new recreational license costs just $10, some participants are hearing echoes of the current national debate over activist government.

"People want some control over their daily lives, including their right to fish," says Eric Shultz, a retired New York City Fire Department patrol officer and a member of Southampton's Board of Trustees. "This whole fee thing is absolutely ridiculous."

The state fishing license was prompted by a federal measure, passed in 2006, to more accurately measure fish populations. It requires recreational fishermen to register so they can be contacted and asked how many fish they catch. That goes into effect next year, unless states first implement their own licenses.

A handful of states, including New York, this year have done that. But only in New York are fishermen fighting the matter in the courts. Most states, including New York, for years have required freshwater-fishing licenses.

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Christopher Rhoads/The Wall Street Journal

Baymen on eastern Long Island have used dories and nets for centuries to make their living catching striped bass in the Atlantic surf.

"With Stuart, it wasn't like he had created a movement or anything, so the judges could just dismiss him as a crank," says Arnold Leo, secretary of the East Hampton Baymen's Association. "But now, you've got all these towns...so this becomes much more complicated."

The towns, like Mr. Vorpahl, are basing their case on the Dongan Patent.

In 1686, the British governor of the royal colony of New York, Thomas Dongan, granted the patent, a kind of town charter, putting responsibility for public land and waterways in several East End towns in the hands of locally elected trustees. The New York state constitution preserved that contract in 1777, amid the War for Independence from Britain. That means, according to the current trustees, the state has no authority to impose regulation on town property, which includes the bottom of town inlets and bays.

While similar patents existed throughout the colonies, the East End patent appears unique in having survived as a basis for government. It has lasted perhaps because many of the same families, called Bonackers for their original homesteads along Accabonac Creek, still live here and because it concerns fishing, their traditional livelihood.

The patent "is implanted on their craniums," says Richard Barons, executive director of the East Hampton Historical Society. "Without the Bonackers, no one would've known of it."

The attorneys for the towns are going through a 337-page document on the subject compiled by Mr. Vorpahl after he holed up for several months during the winter of 1992 in the town library. The research cites numerous local cases won on the strength of the patent, ranging from overriding a state law prohibiting cattle herding on highways, in 1882, to placing eel pots in a local pond without a state fee, in 1952.

While the towns regard the patent as a bulwark against outsiders meddling in their affairs, it paradoxically owes its existence to state, or colonial, intervention.

From the moment settlers first arrived here in the 1640s, the fledgling towns struggled to stay out of the clutches of the royal colony of New York in favor of Connecticut, where they had closer economic, cultural and religious ties. Most of the original settlers to the area came from New England.

Tensions with New York heightened after 1674, when the British drove the Dutch out of the colony and began imposing a more centralized form of government.

But the eastern Long Islanders also realized the need to secure their titles to land under the expanding British administration. That was achieved in the 1686 patent granted by Gov. Dongan. While it empowered local government, it also had the effect of legitimizing British rule on the East End, by making land titles dependent on the royal colony, according to Peter Christoph, an editor of New York colonial-era manuscripts. It also made it easier to collect and increase property taxes.

Still, eastern Long Islanders continued to resist in other ways, presaging the Revolutionary War, not to mention Mr. Vorpahl's current struggle.

Stuart Vorpahl

More than one judge has asked Mr. Vorpahl, he says, whether he sees himself as a modern-day version of Samuel Mulford, an East Hampton whaler active in town affairs. Nicknamed "Old Fishhook," Mr. Mulford fought for years in the early-18th century against a royal whaling license. He traveled twice to London to protest the measure directly to the king, despite repeated arrests. Mr. Vorpahl notes that the whaling license was repealed only in 1730, five years after Mr. Mulford's death.

Though others have rallied to his cause, Mr. Vorpahl says nothing is a sure thing. A New York state court justice recently postponed a hearing on the matter until Nov. 19, after Sen. Charles Schumer called for the state to delay implementation of the license during the difficult economy. Last month, New York state Attorney General Andrew Cuomo's office backed out of defending the state against the suit, citing confusion over how the license is distributed and enforced. On Monday, a state assemblyman introduced legislation to replace the license with a registry program, without a fee, effective next July 1.

With the matter attracting so much attention now from state officials, Mr. Vorpahl remains hopeful for some sort of ruling.

"I was a lone eagle on this," he says, over the crowing of a rooster in his yard. "But I'm finally getting heard."