Shellfishing company, town in talks to settle lawsuit over clam dredging

Frank M. Flower & Sons has held off dredging Mill Neck Creek as it discusses settling a lawsuit brought by the Town of Oyster Bay, the shellfishing company and town officials said Tuesday.

A state judge declined last month to issue a temporary restraining order sought by Oyster Bay against the business, which is based in Oyster Bay and leases the underwater land from the town. Oyster Bay filed a lawsuit against the company and the state Department of Environmental Conservation, which issued the permit, alleging that the dredging would damage clam spawning grounds.

New York State Supreme Court Judge Dawn Jimenez signed a stipulation last week adjourning the case to “aid in settlement discussions, and potentially conserve judicial and party resources.” The adjournment gave the parties additional days to file motions and responses regarding the town’s request for an injunction. Those court filings are due this week, and Jimenez left the scheduling of oral arguments to be determined by the court at a future date.

Although the permit issued by the DEC allows Frank M. Flower & Sons to transplant clams from Mill Neck Creek to other areas in Oyster Bay from May 24 through Sept. 1, the company has not done so.  

They “have not started transplanting and are temporarily not beginning the transplant process pending ongoing discussions,” James Cammarata, Oyster Bay-based attorney for Frank M. Flower & Sons, wrote Tuesday in an email. Cammarata declined further comment.

Town spokesman Brian Nevin wrote in an email Tuesday that “the company has not yet [begun] dredging, and both parties are actively negotiating a potential settlement to protect the Harbor and marine life.” Nevin did not respond to additional questions about the talks.

A DEC spokeswoman said the agency is not a party to the settlement talks and it is their understanding that Frank M. Flower & Sons intends to begin harvesting on Thursday. If the harvest begins, DEC staff will be on site to supervise, the spokeswoman said.

The town seeks to prevent the company from utilizing the permit that allows it to transplant clams from Mill Neck Creek, an estuary where it previously operated a hatchery, to four areas in western Oyster Bay Harbor. Under the permit, the company is allowed to move the clams for up to 80 hours a week, and then after waiting 60 days they can be harvested, according to the permit.

The town alleged in court filings that dredging in Mill Neck Creek would compromise the waterway by reducing and removing the water-filtering capacity of the shellfish and degrade water quality.

“The damage caused thereby would be permanent and irreversible, causing permanent damages to the Town, as owner of the relevant underwater lands,” the town said in a court filing.

Cammarata said in a court filing that the company has long transplanted shellfish from the estuary without harming the environment.

“The practice of transplanting clams has been a longtime conservation practice that has been conducted for decades, it is simply illogical that a transplant process, or for that matter the other farming activities of FMF [Frank M. Flower] suddenly harm the Estuary,” Cammarata wrote.