County Leases away sailing venue

[shemandr]

We run into a problem here in the bays we call the Peconics. Over ten years ago New York State enacted legislation that gave Suffolk County jurisdiction of the bay bottom for the purpose of shellfishing. Few people noticed. It wasn't a feature in the papers. There were a few public meetings but few of us ever heard of them. And at the same time Suffolk County embarked on a program to lease the bay bottom to commercial shellfish growers. This is being done for economic development and to improve the water quality of the bays. I'm for both of those and I enjoy the tasty bivalves myself. So far they've only leased 2.9% of the eligible 29,000 acres available. They are offering new leases at a rate of 600 or 900 acres (I've seen both numbers) a year and that is limited by law. So we've sailed around "Lobster" traps forever and I think it's fair to say the fisherman have lost little gear to sailors. Now the fishermen are laying what look like boat bumpers end to end to prevent boat traffic from passing over their leased bay bottom. At this point it's an annoyance. But some of the areas being considered for lease next year would restrict boat access to areas which see pretty heavy boat traffic not to mention our Wednesday Night race course. A public hearing is coming up about next year's leases and we are deciding how to challenge some of those pending areas. Should we challenge the lease area because it restricts boat traffic. Or should we challenge the practice of the fishermen of walling off the leased area? See the map attached - particularly the part north west of the island. Note the yellow area which is pending.

 

[rgranger]

@shemandr

I'd want to look at the wording of the lease. If they are leasing the bottom only that does not give them the right to restrict access to the surface water.

The right of the county to regulate this falls under Navigable Servitude. So it really depends but... it is definitely something legislated under water right laws.

 

[Stu Jackson]

You might want to consider enlisting the aid of a maritime attorney, maybe one who owns a boat. Good luck.

 

[shemandr]

I hoped for more responses but that is the hazard of posting on the nicest weekend of the year.
We do not have a copy of the lease. I think it's a good idea to find out exactly what the leasers are allowed. So we will try to get a copy. We had a race last night in which the course ran right through one of the areas replete with buoys. We just sailed right through them. It wasn't one that had the bumper type barriers.
I don't really understand why the USCG is OK with this. Some of these areas will certainly hamper navigation in the "Channel." I define that as on course from government buoys to government buoys.
The Maritime Attorney is a good idea. I know some of the local marina owners are awakening to the situation - ten years too late.

 

[Ken Cross]

Write to your legislator. Have your friends do so too. They are supposed to represent you.

Ken

 

[SFS]

Good luck with that.

 

[jon hansen]

follow the money. county politicians want the money from the leases, they have already spent it in there minds. in the real world, the only way you can stop it is to offer the politicians more money than the leases.
i feel for you shemandr. you have a nice thing going. then outsiders show up and change every thing.
they figured out how to make their money in your playground. ... and the politicians love them.

for me it's bass fishing. let's kill and mane little animals for fun and profit. i wake up to 35 bass boats 50' off my dock killing little fishes. this happens every day all season long. they do not eat them. it's the thrill of the kill. county just built a new pavillion to hold bigger events.
"take paradise and put up a parking lot"

 

[rgranger]

I hoped for more responses but that is the hazard of posting on the nicest weekend of the year.
We do not have a copy of the lease. I think it's a good idea to find out exactly what the leasers are allowed. So we will try to get a copy. We had a race last night in which the course ran right through one of the areas replete with buoys. We just sailed right through them. It wasn't one that had the bumper type barriers.
I don't really understand why the USCG is OK with this. Some of these areas will certainly hamper navigation in the "Channel." I define that as on course from government buoys to government buoys.
The Maritime Attorney is a good idea. I know some of the local marina owners are awakening to the situation - ten years too late.

So I assume it is safe to say that sailing over an clam bed did not harm the clams. I think that is a good point to hammer home to any ear you are able to bend. Given the fact that clam beds are good for the water and ecosystem there is the possibility for a win-win situation here. If the only concern is anchors destroying the beds, then maybe some restrictions on anchoring in the beds is all you need and a good compromise... everyone gets what they need plus better water to sail in.

 

[BigEasy]

We have thousands of acres of oyster leases in coastal Louisiana. I have never seen any attempt to restrict passage over the oyster bedding grounds with bumpers or any other floating devices. Sure, the oyster fishers will place PVC pipes with signs to identify their ground; however, it doesn't restrict passage, nor do they attempt to restrict passage. Hell, if they blocked the oyster fishing areas, the entire coast would be non-navigable! In fact, the oyster bedding grounds are some of the most productive areas for recreational fin fish sportsmen to fish as the oyster reefs hold lots of food supply for recreational fish species. The recreational fishing associations really need to get on this problem before it gets too far out of control. In Louisiana, the message from recreational groups, that has been effective in influencing state legislators, is that the recreational fishing industry including boat sales, repairs, bait shops, marina's, insurance sales, etc. has an equal or greater monetary impact than commercial fisheries. The amazing thing is that there has never been any problems, to my knowledge, between the oyster fishers and recreational fishers; everyone co-exists in harmony.

 

[capta]

I was hired to operate a sailing vessel for the Ct River Museum for a summer, and when the city of Essex, Ct tried their heavy-handed city authoritarianism out on me, I began researching (with the help of an ACLU attorney) their actual legal claim to regulate the Ct River bottom (anchoring and mooring regulations), we found out that because the Ct River goes through several states, it was under federal regulation, not state and certainly not city or county.

It turned out that the city moorings were illegal and their regulations were too. A threat to bring legal action, which they surely would have lost, costing them the city moorings income, brought a 'we won't bother you if you drop this now' agreement, and I spent the summer at anchor, un-harassed by them.

I doubt that you'll be so lucky, but you can try. However, if you really want to get something done, then you (and whatever group of citizen sailors you can get together) are going to have to retain a lawyer. I'm not sure that this is an admiralty case, so again you will have to seek legal advice on that.

 

[shemandr]

Well said rgranger. It shouldn't be about winning or losing. We should be able to find a place in which everyone gets what they need. It does all go back to what the lease allows.
Jon is mostly correct in that this is something that descended upon us from outsiders. Our town (Southold) couldn't do very much because their jurustriction ends 1,000 feet from shore or something like that. There are five towns with shore on the bays. They don't have a bay coalition really. They maybe could have fought this in the county legislature but since the whole thing was presented as good for the economy and environment they didn't.
One point I probably didn't make clear. The leased plots are for cultivation of shellfish. There will be man made equipment on the bottom.

 

[dlochner]

First, I am not an attorney, nor am I practicing law.

There is case on law on a closely related issue. Search for Riparian Rights.

The cases were about the rights of landowners vs the rights of the public on navigable waters that flow throw private lands. In these cases, the landowners wanted to restrict the passage of boats (mostly canoes and kayaks) on the rivers and streams that crossed their lands, either by denying them the right of passage or charging a fee. If I recall correctly and understand the cases, the courts have held that the public have a right to navigate the waters and the landowners have the right to deny access to the shoreline above the high-water mark and to deny anchoring as the landowners owned the ground and bottom, but not the water.

Here's one such case: https://law.justia.com/cases/new-york/court-of-appeals/1997/89-n-y-2d-472-0.html

A real lawyer can probably make the case that while the county owns the bottom and can lease the bottom, and the lessees can place restrictions on the bottom, i.e., no clamming in their area, they can not restrict navigation over the bottom.

The CG can probably make the case that any buoys or markers that delineate the bounds of the leased area be registered with the CG and Army Corp of Engineers and be indicated on charts and through Notice to Mariners.

If the lesses continue to string impassable lines of buoys to mark their turf, they will likely find this an expensive proposition. No doubt some pissed off boater will come in the dark of night and liberate those buoy lines from the bottom.

Edit: You can tell I'm not a real lawyer or even play one on TV as I originally wrote Lessors when I meant Lesses... Those errors have been corrected.

 

[Scott T-Bird]

So I assume it is safe to say that sailing over an clam bed did not harm the clams. I think that is a good point to hammer home to any ear you are able to bend. Given the fact that clam beds are good for the water and ecosystem there is the possibility for a win-win situation here. If the only concern is anchors destroying the beds, then maybe some restrictions on anchoring in the beds is all you need and a good compromise... everyone gets what they need plus better water to sail in.

This sounds like the logical conclusion. Challenge the practice of using the "bumpers" to restrict boating in those areas. I suspect that the commercial operations are simply exceeding their authority and exploiting lack of oversight. Legislators may simply not be paying attention. Limitations on anchoring, while it might seem unfair, might be a reasonable compromise.

 

[Sailm8]

This sounds like something BoatUS might be interested in.

 

[Kermit]

This sounds like something BoatUS might be interested in.

+1 BoatUS is a huge champion of boaters’ rights.

 

[Rick Webb]

The CG can probably make the case that any buoys or markers that delineate the bounds of the leased area be registered with the CG and Army Corp of Engineers and be indicated on charts and through Notice to Mariners.

Private Aids to Navigation must also meet the same requirements and specifications as Federal Aids. They must also be inspected annually and recertified every I think five years. Authorization is granted through the Coast Guard and to have them placed on the applicable chart registration with NOAA is required.

An end run to this situation might be to report them as a "hazard to navigation" to the local Coast Guard Station. They may have more pressing issues but you might catch them at a slow moment.

 

[Gunni]

What is the average water depth in these shellfish beds? Around here the oyster and clam beds are in water too shallow for keelboat navigation. The State permits the lease locations with that in mind.

Crabbers get permits that specify where, and how many traps they can set. Mostly anything less than 20ft MLWL. But when things get crowded they regularly set traps in access channels and harbor entrances. The state has begun enforcing “float free zones” where no traps can be set, and a float in violation has a permit number on it, so notice is easy. We can nightsail again out of our marina!

But here’s the thing; why would you go yahoo on these guys and run through their floats like a bunch of angry elitist yachties? That will only harden positions and trust me brother, you do not want to get into a scuffle with a bunch of guys who get up on cold February mornings and go to work on the water. You need to know the law better than whomever is doing this and regain the federal requirement for use of navigable waters. In the meantime, move your race stuff further out and show the watermen how good neighbors interact.

 

[pateco]

we found out that because the Ct River goes through several states, it was under federal regulation, not state and certainly not city or county.

Would this also affect the ICW since it crosses through many state? Miami and other cities are getting crazy about anchorage rights on the ICW.

Lawmakers May Ban Anchoring of Boats in Intracoastal Waterway

 

[bawlmer]

As I recall from my times in the Florida panhandle growing mussels and clams does require significant rigging at or just below the surface of the water. Oysters do not. Since most people are reactive rather than proactive I am sure the fenders were deployed in reaction to a boat getting caught up in their lines. I am pretty sure they probably did not erect the barriers just to be spiteful. Someone is trying to make a living doing this stuff.

 

[Scott T-Bird]

But here’s the thing; why would you go yahoo on these guys and run through their floats like a bunch of angry elitist yachties? That will only harden positions and trust me brother, you do not want to get into a scuffle with a bunch of guys who get up on cold February mornings and go to work on the water. You need to know the law better than whomever is doing this and regain the federal requirement for use of navigable waters. In the meantime, move your race stuff further out and show the watermen how good neighbors interact.

If you read carefully, Andy is telling us that potential leases for next year will encroach in race areas. He hasn't suggested that anybody has gone yahoo yet. But before giving the benefit of the doubt to the watermen, it's fair to question the situation. My bet is that the commercial guys might be violating their leases (because nobody is challenging them) by placing barriers. It doesn't seem to make sense that they can legally just take over navigable waters.