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Commercial Fisheries News
Volume 35 Number 10
June 2008
RI Superior Court reverses license denial
PROVIDENCE, RI – Rhode Island Superior Court Judge Susan McGuirl ruled on April 14 that the decision by the state Department of Environmental Management (DEM) to deny fisherman Patrick Heaney a commercial fishing license with a gillnet endorsement was erroneous.
In reversing the DEM decision, Judge McGuirl said that the record showed Heaney’s rights had been “substantially prejudiced.”
For his part, Heaney was pleased and relieved by the ruling.
“After five years of litigation, I am anxious to use my new license to make an honest living,” he said.
Heaney applied to upgrade his multipurpose license with a gillnet endorsement in January 2003. DEM denied his request the same day.
A letter signed by Margaret McGrath, a DEM programming services officer, said that the agency lacked the statutory authority to upgrade Heaney’s license because it could not issue any new gillnet endorsements.
Heaney immediately filed a request for reconsideration by DEM’s newly created Commercial Fishing License Review Board. In a letter from the DEM through McGrath, Heaney was told that his request for reconsideration could not be heard by the board because the governor had not yet appointed members to the board.
Consequently, the DEM said, the denial issued on Jan. 9, 2003 was final.
Heaney then appealed his case to DEM’s Administrative Adjudication Division (AAD). During a hearing on March 20, 2003, AAD Hearing Officer Joseph Baffoni referenced a hardship provision in the rules and gave Heaney’s request to the DEM for an upgraded license a favorable recommendation.
However, that recommendation was quickly rejected by then-DEM Director Jan Reitsma.
Heaney appealed Reitsma’s decision to the state Superior Court, alleging that Reitsma had “misinterpreted relevant statutory and regulatory provisions.”
Heaney also alleged that Reitsma exceeded DEM’s statutory authority by rejecting the hearing officer’s recommendation.
Lastly, Heaney alleged that Reitsma did not give the appropriate amount of deference to Baffoni’s recommendation, thereby abusing the discretion afforded him by state law.
Heaney requested declaratory relief from the judge.
In response, DEM alleged that Reitsma’s rejection of Baffoni’s recommendation was consistent with applicable statutes and DEM regulations, and that Reitsma gave Baffoni’s recommendation appropriate consideration.
Judge McGuirl ruled that DEM erroneously asserted that state law and regulations categorically barred Heaney from acquiring a gillnet endorsement and from availing himself of the hardship provision.
In her decision, Judge McGuirl said, “After a thorough review of the record, the court finds that the decision of the director of the DEM to reject the hearing officer’s recommendation to grant Heaney a gillnet endorsement upgrade to his multipurpose commercial fishing license was clearly erroneous in view of the record, affected by error of law, arbitrary, and constituted an abuse of discretion.”
“Righting a wrong”
Attorney Christopher D’Ovidio said he devoted many hours to Heaney’s case without full compensation because, “The case was not about me earning an hourly wage, but rather righting a wrong.”
Heaney said a mutual friend recommended D’Ovidio because of his expertise as an environmental attorney and scientist, who has been involved with local and national fisheries management legislation and litigation as a staff attorney for the Conservation Law Foundation.
“As an attorney and professor of law, I have gained invaluable legal experience and knowledge regarding the appropriate and lawful means by which a governmental agency may grant or deny a permit,” D’Ovidio said.
A native Rhode Islander whose brother has been a shellfish fisherman for 30 years, D’Ovidio added, “I understand the acute effects that licensing restrictions, pollution, and fishery management have on the fishing industry. This decision is a victory for the little guy who puts food on our nation’s table.”
Patrick Heaney, 45, has been fishing since he was 10 years old. Heaney and his wife of 25 years, Eilish, have two daughters, Maeve, 19, and Fiona, 12, and have lived in Newport for 16 years.
“All I want to do is provide for my family and make a living as a professional fisherman,” Heaney said. “I am environmentally responsible, and I believe that anyone involved with the fishery is obligated to preserve the resource. I also believe that the government agencies regulating our industry should treat us fairly and with respect for our rights.”
Sam Bari
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