Frank M. Flower & Sons wins exclusive right to harvest oysters, clams

A permanent stay issued Friday, April 4, 2014,

A permanent stay issued Friday, April 4, 2014, by four judges of the Appellate Division Second Department of State Supreme Court in Brooklyn has reaffirmed the right of Frank M. Flower & Sons to harvest while it appeals a lower-court ruling that invalidated its town lease. (Credit: Google)

A state appellate court has reaffirmed the right of an Oyster Bay shellfish company to harvest while it appeals a lower-court ruling that invalidated its town lease.

The permanent stay issued Friday by four judges of the Appellate Division Second Department of State Supreme Court in Brooklyn replaces a temporary stay issued last month and will remain in effect until the court rules on the validity of Frank M. Flower & Sons' lease with the Town of Oyster Bay.

The judges ordered the parties to submit their briefs and replies by July 22. A decision is unlikely before next year.


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While the temporary stay was in effect, Flower agreed the independent baymen of the North Oyster Bay Baymen's Association, which has challenged the lease, could also harvest oysters and clams on the beds.

Now Flower's dredges again have exclusive use of the beds until the appellate judges rule on the company's appeal of a September decision by State Supreme Court Justice Stephen Bucaria.

Dwight Relyea, a co-owner of Flower, said, "We're farmers. We are very proud of the positive impact our farming and harvesting efforts have had on the bay and our entire community. We are happy to be able to continue our work as the court moves forward with its review of our appeal."

Darrin Berger, attorney for the baymen, was unavailable for comment.

Town spokesman Brian Devine said Friday that bay constables will inform the baymen of the stay and the need to keep off the leased beds.

Bucaria had ruled for the baymen's association in its long-running battle with the town and Flower over the town lease for a third of the bay bottom. The association had sued in 2011 over the town's 30-year extension in 1994 of the lease Flower has held since 1937.

Since Bucaria's ruling, the two sides have argued about what it meant. Flower contended 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 February to leave the appeal to Flower rather than take sides. Flower attorney Gary Ettelman went to Supreme Court last month, seeking a stay pending its appeal. Bucaria denied the request, and Ettelman went to the Appellate Division, which issued a temporary stay of Bucaria's ruling pending a decision on Ettelman's motion for a permanent stay that was issued Friday.

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.

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