Informal Opinion No. 83-55

Christine C. Hilgendorff, Esq.

Attorney General of New York — Opinion
Dated: September 26, 1983

CRIMINAL PROCEDURE LAW, §§ 2.10(19), 2.20; ENVIRONMENTAL CONSERVATION LAW, Art 71.

Town harbor masters, as peace officers, may enforce those provisions of the Environmental Conservation Law which are consistent with their specific duties when authorized or required to do so by their employers.

Christine C. Hilgendorff, Esq. Assistant Town Attorney, Islip

Based upon your letter and a telephone conversation with this office, you ask whether town harbor masters are authorized to enforce the New York State Environmental Conservation Law.

Town harbor masters are peace officers (Criminal Procedure Law, §2.10[19]). The powers of a peace officer are now keyed to acting pursuant to the special and inherent duties of his or her office (Bellacosa, Practice Commentary, McKinney’s Criminal Procedure Law, § 2.20, p 29). Thus, Environmental Conservation Law, § 71-0907 provides that peace officers, “when acting pursuant to their special duties * * * shall enforce all laws of the state relating to fish, wildlife, shellfish, crustacea, protected insects and game”, collectively referred to as the Fish and Wildlife Law. In addition, peace officers, when acting pursuant to their special duties, are authorized to enforce the provisions of the Environmental Conservation Law listed in section 71-0501 or under Titles 5 through 15 inclusive and Title 33 of Article 71 (Environmental Conservation Law, §§ 71-0525[1], 71-0907[3]). Section 71-0501 refers to “sections 3-0109 through 3-0115 inclusive and sections 3-0305 and 3-0307 of article 3; articles 9, 11 13 and 15; titles 7, 9, 11 and 13 of article 21; articles 23 and 24 and articles 43, 45 and 47”.

A peace officer “acts pursuant to his special duties when he performs the duties of his office, pursuant to the specialized nature of his particular employment, whereby he is required or authorized to enforce any general, special or local law or charter, rule, regulation, judgment or order” (Criminal Procedure Law, § 2.20). In a prior opinion of this office, we stated this meant that “only where the defined duties of the particular office — for example, by statute or reasonable rule of the employer — authorize or require the exercise of the powers of peace officers, may the peace officer exercise those powers” (Op Atty Gen 82-F18). A copy of that opinion is enclosed for your reference.

Harbor masters are locally appointed officers. Their duties are prescribed locally, not by State law. We believe that harbor masters may enforce the Environmental Conservation Law when the specific duties of their offices as defined by their employers authorize or require them to do so (ibid.; Criminal Procedure Law, § 2.20; Environmental Conservation Law, § 71-0907). Such an authorization, however, would be limited by the range of powers which may be granted to harbor masters at the local level. We understand that harbor masters in your town are currently responsible for enforcing the town’s environmental code in the areas of shellfish and bay management. In our opinion, your town may, if it so chooses, also authorize or require harbor masters to enforce those provisions of the Environmental Conservation Law which are consistent with those duties and other duties inherent in that office (ibid.; Bellacosa, Practice Commentary, supra).

We conclude that town harbor masters, as peace officers, may enforce those provisions of the Environmental Conservation Law which are consistent with their specific duties when authorized or required to do so by their employers.