It is a Tuesday in July 2009, a warm summer afternoon at the beach on the Shinnecock Inlet in Hampton Bays. Fifty yards offshore, a black blob slowly emerges under the cover of a pile of seaweed. A Department of Environmental Conservation officer, standing on the rocks, scans the water for movement and waits.
Sean McSherry slowly lifts his head out of the water, surfacing from a two-minute dive on a single breath of air. He pulls in a long, deep breath through his snorkel, and replenishes his oxygen-starved lungs. As he peers out of the water, McSherry sees the navy blue outline of the DEC officer’s SUV, and the yellow letters on the side. They have tried to ticket him for spearfishing in the past, and McSherry isn’t in the mood for another talk with law enforcement, so he slinks back under the pile of seaweed and waits the officer out.
In 2009, only a handful of local guys would have been suspected of free diving and spear fishing, McSherry being one of them. But today more and more people are diving in an area with strong currents and murky water. It’s a dangerous sport, and law enforcement is now cracking down harder than ever.
The relationship, if there ever was one, between free-diving spear fishermen and local law enforcement in the Shinnecock area over the last few years has all but completely disintegrated.
The Shinnecock Inlet is a waterway connecting the Atlantic Ocean to the Shinnecock Bay. It consists of two parallel rock piles facing south. On the beach side of either rock pile, it is legal to dive. The north side where the rocks cut east and west into the bay on opposite sides is where most disagreements between divers and law enforcement occur.
Divers fear being ticketed for diving where the bay and the inlet meet. These “gray areas,” according to Southampton Town Trustee Ed Warner Jr., are borders on the water that are hard to delineate. The gray areas exist where channels end and the Shinnecock Bay begins. Any channel is illegal to dive, but where the channel ends can be difficult to determine, according to Warner. On a navigational map, the boundaries are clearly marked, but in a large body of water, with strong currents, law enforcement officers can only use GPS markers and their own judgment to determine if a diver is technically in a channel or not.
The only law pertaining to diving in the area that both the divers and law enforcement agree upon is that diving the center of the inlet, also a channel, and a federal waterway, is dangerous and illegal. The Coast Guard, DEC and Bay Constables police the area. DEC enforces laws dealing with fishing, and the Bay Constable’s jurisdiction deals with the dive areas and diving. The Coast Guard has jurisdiction over everything, but usually handles rescues and relinquishes power to local police forces to regulate diving and fishing.
Whether a diver is considered in or out of a channel, according to Warner, depends on the judgment of the law enforcement officer on the scene. For local experienced free divers, referring to where a channel ends as a “gray area” and leaving the determination up to the officer is not a distinct enough line of legality.
McSherry, 42, a Hampton Bays native, was diving the beach south west of the western rock pile in July of 2009 when the DEC was waiting for him. Eventually the officer left, and he went back to diving. There have been too many stories of guys getting pulled out of the water and written tickets for diving where it is legal, or just for having a spear gun, McSherry believes. “I just didn’t feel like going to court to argue something that is my right as a Southampton Town citizen.”
The DEC doesn’t enforce diving regulations, but some DEC officers have written tickets for using a spear gun. The basis for those tickets is that a spear gun is a mechanized weapon. Warner said that whether or not spear guns are legal is yet another gray area, sometimes seemingly left up to the officer on duty. In an email response to an inquiry about the legalities of spear fishing, Regional Citizen Participation Specialist and New York Wildfire and Incident Management Academy Coordinator for the DEC, Bill Fonda wrote, “Spearing is allowed for recreational taking of striped bass and other non-protected fish species. A spear gun cannot be used in the marine district for any protected species.” Fonda did not respond to a follow-up e-mail asking if spear guns with triggers specifically were illegal.
Jason Schoerlin, 39, is also a Hampton Bays native who has been diving these waters and shooting striped bass and blackfish most of his life. “Why can’t they set up dive buoys from the 5 mph sign off of Shinnecock Inlet right through that rock pile, maybe 15 feet is all we need off of the rocks,” Schoerlin wonders. The area he is talking about is the north side of the east jetty where the inlet turns into the bay. Divers argue it is not part of the channel.
Warner agrees that the rock pile is out of the channel, but fears that marking the area off will attract more inexperienced divers to a section of water known for its strong currents. These strong currents have swept divers into the ocean before, and this is what the town fears if it marks off certain areas of the bay, close to the channel, as marked dive spots. Unfortunately for experienced divers who frequent the rock pile, there is realistically no recourse if they are ticketed, Warner said.
“They will write you tickets for being in these imaginary boundaries,” McSherry said. “Between all of the law enforcement, you can’t get a clean answer.” McSherry feels there are too many inconsistencies. “I had two confrontations with law enforcement, the DEC and Bay Constable, around the inlet but not in it. I felt I was not breaking any laws; I was within my rights.”
One possible scenario that terrifies Schoerlin is if an inexperienced diver gets killed before regulations are made clear. That would give law enforcement the green light to completely shut the sport down, he fears. “I’ve been diving 25 years, and in the last five years I see a lot of new kids, and I don’t know who they are,” Schoerlin said. “It used to be just a couple of guys I know. Now it’s getting very popular, and new guys are diving without flags and they are going to ruin it for everyone.”
Because of the lack of diver safety and education in the new crop of spear-fishermen, Schoerlin, a certified ocean lifeguard, has started a summer camp teaching free-diver safety and bay conservation to children, called Argo Adventures. His goal is to educate the next generation while establishing the legitimacy of the sport.
Joe Carson, 29, is a Hampton Bays native who now lives in Southampton. Carson is an avid free diving spear fisherman, as well as a bow hunter, and his family has raised poultry and small livestock his whole life. “I meet a lot of people who hear I spearfish and they want to get into it,” Carson said. “It’s a great way to put food on your table.”
Carson likens the sport to
skateboarding or surfing. He feels it is a fringe sport that is marginalized now, but if it is made legitimate with clearly marked dive areas, he thinks it will become very popular, then it will be accepted.
Schoerlin is taking a unique approach in an attempt to establish a unified free-diving community. By setting up his camp, he will continue to dive legally himself, while educating others on how to safely and legally dive. He is hoping that as his camp grows, the town and law enforcement will be forced to address free diving in the area and come up with a system of boundaries, and clear regulations.
Warner has lived in Hampton Bays his whole life, and in fact succeeded his father, Ed Warner, Sr. in his position as Trustee. Safety is important, but as a lifelong bayman, Warner knows the importance of using the resources to the locals. “I’m an advocate of people using resources here, it’s what we’re all about,” Warner said. “I’m always for access to water and people using it.”