Court OKs Oyster Bay shellfish company's harvest for now

During a temporary stay, Frank M. Flower ... During a temporary stay, Frank M. Flower ... Sons and the independent baymen who have challenged the company's lease have agreed to share the town beds in Oyster Bay Harbor while Flower seeks a permanent stay until the case is decided. Photo Credit: Google

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A state appellate court has temporarily upheld the right of an Oyster Bay shellfish company to continue harvesting while it appeals a lower-court ruling that invalidated its lease.

During the temporary stay, Frank M. Flower & Sons and the independent baymen who have challenged the company's lease have agreed to share the town beds in Oyster Bay Harbor while Flower seeks a permanent stay until the case is decided.

In September, state Supreme Court Justice Stephen Bucaria ruled for the North Oyster Bay Baymen's Association in its long-running battle with Oyster Bay and Flower over the town lease for a third of the bay bottom. The association had sued two years earlier over the town's 30-year extension in 1994 of the lease Flower has held since 1937.

Since the ruling nullifying the lease, the two sides have argued about what Bucaria's ruling meant in terms of Flower harvesting on the leased beds. Flower officials contend that the town's filing of a notice of intent to appeal blocked the voiding of the lease. The baymen's association said the judge had voided the lease and never issued a stay.

The town decided in late February to leave the appeal to Flower, spokesman Brian Devine said. "The town decided to withdraw our notice of intent to appeal after it became apparent that this has become a dispute between two commercial entities," he said. "The town felt it best to let this commercial dispute play out in the courts, as ultimately, our interests as a landlord pales in comparison to our vested interests as stewards of the harbor."

When the town decided not to appeal, Flower attorney Gary Ettelman went to state Supreme Court Monday seeking a stay pending its appeal. Bucaria denied the request, ruling the lease terminated.

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Ettelman on Tuesday went to the Appellate Division of state Supreme Court, which issued an order staying Bucaria's ruling, pending a decision on Ettelman's motion for a permanent stay.

Bucaria ruled last year that town law specifies that the bay bottom cannot be leased where there are sufficient shellfish to support hand raking by baymen. Flower places oysters and clams from its hatchery on the beds to augment the natural population and uses mechanical dredges for harvesting.

Darrin Berger, attorney for the baymen, said, "I think the baymen have fared pretty well up to this juncture."

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