Holding Court: Very Fishy

Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.

What topics do you want addressed by Judge Latwin? Tell us.

If you have failed to appreciate Latwin’s humor to date, this week he just might hook and land you on the deck of the USS Holding Court. 

By Joe Latwin

Trolling for puns; a guide to marine registration licenses.

While on the scales of justice, fishing licenses may not be the subject you want to carp on, I thought I would write about it just for the halibut. So let me school you about fishing licenses.

Congress passed the Magnuson-Stevens Fishery Conservation and Management Act (16 USC § 1801 et seq.) that required registration of individuals who engage in recreational fishing in order to “improve the quality and accuracy of information generated by the Marine Recreational Fishery Statistics Survey. The basic purpose of the Federal legislation is to troll for 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 Act exempted federal registration for all recreation fisherman that are “licensed, permitted, or registered under the laws of a State.” A federal license cost $25.

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.” A New York license costs $10 for a year – a savings of a few fins off a federal license.

N.Y. State Environmental Conservation Officers and local police having been issuing tickets to fishermen who do not have licenses. Those tickets often end up in Rye City Court. Since they are violations and not crime the accused are not entitled to assigned counsel free of charge. Many of the fishermen who get hooked by EnCon officers are poor and speak limited English. Recently, I have been representing these fishermen free of charge as a friend of the Court. This allows me to consult with several people at a time to explain the procedures and possible dispositions – saving the Court and the fishermen time.

If you have a license, you may take fish from the waters of the marine and coastal district and take migratory fish of the sea from all waters of the state. That basically includes fish that live a part of their life span in salt water streams and oceans. If you catch as fish from Long Island Sound, that fish will have lived part of his life in salt water.

There are some interesting legal and proof questions that may arise in these cases:

1. How can the State prove the fish was a migratory fish? How could it prove beyond a reasonable doubt that the fish was not spawned in Milton Harbor and remained in its vicinity for its entire life? I am unaware of any fish that has a drivers’ license, is registered to vote, gets a utility bill, subscribes to any magazines, or does any of the other indicia of residence. I highly doubt the fish would testify or could not raise a hand (or fin) to swear an oath.
2. Will the State produce the fish at trial? Ben Franklin remarked “Guests, like fish, begin to smell after three days”. If a trial is held a month or two after the alleged violation, who is going to secure the evidence? Will clothes pins be needed in Court?
3. Since the holder of a license is entitles the holder to take fish, there must be a fish taken for there to be a violation of the licensing requirement. “Taking” and “take” includes pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting fish. “Fishing” means the taking, killing, netting, capturing or withdrawal of fish from the waters of the state by any means. So, apparently, you can sit on the dock of the bay (a la Otis Redding) or drop a line off a rock whilst whistling (a la Opie Griffith) but if you don’t catch anything, you don’t need a license. Will some people keep a fake fish as a D-Koi?

That’s all for this week. I’m going fishing! I hope you enjoyed this Whale of an article.  I know whales are mammals and not fish. I am no Hemingway, just an old man and the sea.  Sea ya soon!