Montauk 8 - A Legal Perspective

Montauk 8 – The Battle Continues

By Angela Howe

Surfing vs. Swimming

When you surf, are you swimming? This was the very unique legal question posed before Surfrider Foundation’s Legal Team addressing the Montauk Point State Park beach access issue, also known as the “Free the Montauk 8” campaign. Obviously, we took it upon ourselves to do as much empirical studying as possible. The Montauk 8 were eight individuals ticketed for surfing under a statute that prohibited—unless specifically authorized—“swimming, diving, bathing or wading…” (9 NYCRR 377.1(h)). So obviously, we wanted to distinguish “surfing” from “swimming” to argue that surfing was not prohibited by this statute. This led us to analyze: What exactly are surfers doing when we are out there in the water? Of course we are paddling with our arms to move ourselves and our surfboard out past the break, but the act of wave riding is surely a sport unto itself.

Judicial Interpretation

As it turned out, the court addressing the Montauk 8’s case was not too concerned with the mechanics of surfing. (Under a legal analysis, you must interpret a statute by what the legislature intended when they enacted the law.) Justice Catherine A. Cahill of the Town of East Hampton Justice Court ruled that the law cited by the ticketing officers does not apply to surfing. In her ruling, Justice Cahill based her decision on a standard rule or “canon” of statutory construction: Expresio unius est exclusion alterius meaning “the express mention of one thing implies exclusion of all others.” The basis of this decision was the fact that only “swimming” was mentioned in the law that was cited by the ticketing officer; whereas, the activity of “surfing” was specifically mentioned in other areas of the New York Code. Justice Cahill ruled that the legislature “distinguish[ed] surfing from swimming, by listing them in the alternative.” After all, surfers can never surf in areas that are sectioned off for swimming—so how can surfing and swimming be the same thing? Fortunately, the court’s ruling held that the two activities are distinct and therefore dismissed the charges against the Montauk 8.

The Real Issue: Recreational User Group vs. Recreational User Group

But this isn’t a question of statutory interpretation; it is a question of who has the right to participate in the enjoyment of this amazing natural resource. Even though Surfrider Foundation won the legal battle, the State Park Officials fully intend to keep ticketing surfers at Montauk Point and maintain that surfing is prohibited in this area. A powerful user group, the surfcasters (or fishermen), has effectively lobbied the State Parks to keep enforcing the ban on the activity of surfing. What doesn’t make sense is that the judge has interpreted the law and the executive branch is under an obligation to enforce it as such. It’s a basic grade school civics lesson, right? (Legislative Branch Makes the Law; Judicial Branch Enforces the Law; and Executive Branch Carries Out the Law.) Note that many Surfrider Foundation efforts are geared at addressing erroneous or under-enforcement of sound environmental laws). In the end, we have to protect our right to surf against these unjust regulatory efforts. We have as much right to use this resource as any other user group. As a grassroots organization, our greatest strength is our strong and plentiful voices. If you would like to voice your opinion on this issue, please contact New York State Parks and Long Island Legislators. Also see here.

Angela Howe is Surfrider Foundation’s Legal Director.

This article is part of a series on Beach Access looking at policies, laws, regulations and conditions which can affect the public's ability to access the coast.

For information about laws, policies and conditions impacting beach access in a specific state, please visit Surfrider's State of the Beach report to find the State Report for that state, and click on the "Beach Access" indicator link.