After repeatedly losing a decadelong legal fight over where a Colonial era document established the boundary of Long Island Sound, the town of Oyster Bay now claims its northern boundary reaches to the Connecticut border, based on a 19th century state law.
Oyster Bay’s outside attorneys will return to court Wednesday in the latest twist in a case that began when Nassau County police ticketed fisherman Bryan C. Murphy in 2010 for fishing on waters at the mouth of Oyster Bay Harbor in an area claimed by the town. Murphy sued the town on the grounds that he was legally fishing on New York State land. The courts agreed with Murphy — and New York State — in 2016 and 2019, establishing a line where the state-owned sound and town-owned harbor meet.
After losing an appeal last year, the town hired new lawyers to pursue a new tactic that rejects the main assumption of the original case that the Andros Patent, a 1667 Colonial-era document defined the boundary.
“The court's original judgment was a determination as to where the Andros Patent boundary is at the harbor, which is totally irrelevant because the State Legislature established the boundary in the middle of Long Island Sound,” said Peter Sullivan, partner at Garden City-based Berkman Henoch Peterson Peddy & Fenchel.
Sullivan said a 1881 state law set the boundary not just for the town, but for Nassau and Suffolk counties and most Long Island North Shore towns at the maritime border with Connecticut.
The town’s lawyers are now asking State Supreme Court Judge Stephen Bucaria to vacate his original 2016 ruling on the grounds that the 19th century law should have been applied and also to restore the summonses issued to Murphy in 2010.
New York State, represented by State Attorney General Letitia James’ office, countered in court filings that the town erroneously conflated maritime political boundaries with underwater land ownership. The 1881 statute “extended county and town boundaries but it does not include any language granting to any county or town underwater land ownership,” the state wrote in court papers.
The state lawyers argued that had the 19th century legislators intended to convey title of the land, they would have specified whether the law granted ownership to the counties or the towns within those counties, but they had not. Generally under state law shellfishing is regulated by the state, unless a municipality holds title to underwater property.
Murphy’s attorney, Darrin Berger of Huntington, said the town shouldn’t get a do-over in a case his client won in the lower court and the Appellate Court and which the State Court of Appeals in December refused to hear.
“The case has been finally adjudicated and you can't reopen the case saying, ‘OK, well here's another issue’,” Berger said. “If you could do that, everybody that litigates and loses could litigate ad infinitum.”
Berger said regardless of where the town’s boundary line is, “Where my guy was clamming on the date of the incident, he had the right to clam and he shouldn't have got a ticket.”
The courts' rulings meant about 450 acres of underwater land the town had been leasing to shellfishing company Frank M. Flower & Sons Inc. were actually state land.
The town has spent at least $295,000 in outside legal fees on the case so far, including an additional $20,749 approved this month for Berkman, Henoch, Peterson, Peddy & Fenchel after running through an initial $25,000 approved 10 months ago.
Town board members who voted to pay the additional legal fees at its Feb. 11 meeting seemed unaware the town had changed its legal strategy.
Sea Cliff resident Arthur Adelman asked the board why they were spending more money on a case it had already lost.
Town Supervisor Joseph Saladino said the town needed to protect its property interests and referred to the Andros Patent.
“The Andros treaty is something that's an important document in this country's history,” Saladino said. He then asked Adelman if he had read the document. Adelman said he had not.
“So read up on it so you'll be better informed,” Saladino said.