Court bans use of scuba gear for shellfishing

[Spectre]

http://www.projo.com/metro/content/p...ba.1aa03f.html

Court bans use of scuba gear for shellfishing
01:00 AM EST on Tuesday, March 16, 2004
By KATIE MULVANEY
Journal Staff Writer

PROVIDENCE -- The state Supreme Court yesterday ruled that shellfishermen cannot use scuba gear when harvesting their catch from four South County ponds.

The ruling backs a state law banning shellfishermen from using scuba tanks in Green Hill, Quonochontaug, Charlestown and Potter's Ponds. The fishermen had argued the law violated the scuba diver's right to make a living.

The decision reverses a Superior Court ruling that the state shellfishing law was unconstitutional. The attorney general's office filed an appeal.

For generations, shellfisherman have harvested clams, mussels and oysters from South County ponds, more recently using scuba gear to fish deeper waters.

Shellfishermen protested yesterday's decision.

"We're pretty much dead in the water," said Bob Cherenzia, who has shellfished in South County waters for 30 years. He insisted that the state law was driven only by residents, such as former Senate President William Irons, who want the ponds to themselves.

"We're going to make some noise about this," said Cherenzia, of Narragansett.

Prior to the passage of the 2001 law, residents had complained the fishermen were depleting the ponds' shellfish. They also said passing boats put the fishermen at risk. The law represented a compromise between the two groups, according to court records.

The fishermen argued the law was not driven by concerns about natural resources or public health. If the state was truly interested in protecting the shellfish population, it would have banned all harvesting methods, they said. Further, it discriminated against shellfishermen using scuba gear.

"You can still go in with a clam rake," said Cherenzia.

The Supreme Court justices concluded that to bar one method of shellfishing "does not deny these men their livelihood or occupation because they may still harvest shellfish -- even with the assistance of SCUBA" in other areas. Therefore, the law does not violate the fishermen's "rights of fishery." The law ensures that shellfish remain for commercial and non-commercial fishermen "in equal measure," while lessening potential safety concerns in the ponds.

We now "throw this statute back to the legal waters of this state so that it can sink or swim on its own merits as a legislated public policy," the court ruled. The General Assembly has the power to regulate the fishing industry.

Katie Mulvaney can be reached by e-mail at kmulvane###projo.com or by phone at 277-7417.

[rcohn]

Well, it looks like we'll have a few more freedivers in RI.

Ralph