An employee of Frank M. Flower & Sons works with...

An employee of Frank M. Flower & Sons works with a mechanical rake while fishing for clams in Oyster Bay on Jan. 6, 2020. Credit: Barry Sloan

A state judge has denied the Town of Oyster Bay’s attempt to stop a shellfishing company from dredging Mill Neck Creek to transplant clams to Oyster Bay Harbor.

It was the second legal defeat for the town since it sued Frank M. Flower & Sons, which leases the underwater land from the town, in May.

Judge Dawn Jimenez wrote in her June 24 order that “the town failed to demonstrate its entitlement to the drastic remedy of a preliminary injunction.”

Jimenez wrote that the facts were in “sharp dispute” and the town had neither established a “clear right” to injunctive relief nor a likelihood that its lawsuit would be successful on its merits. In May, Jimenez denied the town a temporary restraining order to prevent what it alleges would damage clam spawning grounds.

The state Department of Environmental Conservation — which was also sued by the town — issued the permit to the company to transplant the clams to specific areas in the harbor from May 24 through Sept. 1. The clams can then be harvested after a 60-day waiting period. The company began transplanting the clams last month.

Jimenez wrote that in light of competing opinions from experts in the case, the “town failed to demonstrate that it would suffer irreparable harm if the injunction is not granted.”

The court case will proceed even as Frank M. Flower & Sons continues to transplant clams.  

“The court’s ruling just affirmed that facts and science are what should prevail whenever there’s a dispute concerning the environment,” James Cammarata, Oyster Bay-based attorney for Frank M. Flower & Sons, said Friday.

Cammarata has said in court filings that the company has long transplanted shellfish from the estuary without harming the environment, despite the concerns raised by the town.

Oyster Bay spokesman Brian Nevin did not respond to a request for comment.

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