Judge's decision a win for Oyster Bay baymen

Bob DeFeo, 52, of Oyster Bay, works to

Bob DeFeo, 52, of Oyster Bay, works to pull in his rake, which he hopes is filled with clams. (Aug. 25, 2011) (Credit: T.C. McCarthy)

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A judge has ruled for Oyster Bay baymen in their long-running battle with the town and a shellfishing company holding a town lease for a third of the bay bottom.

The North Oyster Bay Baymen's Association two years ago sued over the town's 30-year lease extension to Frank M. Flower & Sons in 1994.

In a decision released Wednesday, State Supreme Court Justice Stephen Bucaria voided the extension and ordered the town to conduct a population survey of shellfish on the beds covered by the lease.

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Flower said it will appeal; the town is reviewing the decision.

The judge noted that in awarding a lease for the deeper waters of Oyster Bay and Cold Spring Harbor to the highest bidder, town law specifies that the bay bottom cannot be leased where there is sufficient shellfish to support hand raking or tonging by baymen. Flower places oysters and clams from its hatchery on the beds to augment the natural population and uses mechanical dredges for harvesting.

Bucaria said the most recent clam density survey in 2012 did not cover the beds leased to Flower. "Because marine and environmental conditions change, during the lease term there may come a time when there are sufficient shellfish to permit hand raking or tonging."

So the town could not issue a lease "without reserving the right to cancel the lease should clam density increase to permit hand raking or tonging," Bucaria said.

"In view of the significant increase in clam density in the surrounding area" shown by the most recent census, "the town's failure to conduct a clam density survey on land leased to Flower renders the town's continuation of the long-term lease to Flower arbitrary."

Flower attorney Mark Sabow said, "I'm shocked because it disregards the plain language of the statute" that stipulates a survey be done at the time the lease is granted. "It's being construed to be a continuing obligation," he said.

Darrin Berger, attorney for the baymen, said, "It's a tremendous victory for the baymen." He said the town does "periodic clam density surveys on the baymen's land to determine how many licenses will be given out. Why shouldn't the resource be similarly protected on land leased to Flower?"

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