Shellfishing company fighting Oyster Bay in court to keep underwater lease

A shellfishing company has denied violating its lease with the Town of Oyster Bay, saying it made payments to the municipality instead of providing 1 million clam seedlings for annual planting in Oyster Bay Harbor and Cold Spring Harbor.

An attorney for Frank M. Flower & Sons made the argument last week while replying to a June lawsuit the town filed in state Supreme Court in Mineola seeking to end the vendor's 30-year underwater lease for alleged breaches.

Attorney James Cammarata wrote that the town's allegations against his client "are simply incorrect, and unsupported by peer reviewed science.”

The town alleges the company’s failure to provide clam seeds will damage the aquaculture.

But the Oyster Bay-based attorney for the vendor said its operations in the area for more than 134 years have made the estuary “one of the healthiest areas in the Long Island Sound Region” that “for decades has been the leading producer of hard-shell clams statewide.”

The town has alleged the company violated the lease, which began in 1994 and ends in 2024, by not providing the clam seedlings, by failing to maintain boundary markers and by trespassing on town property outside lease boundaries. 

Under lease terms, Frank M. Flower & Sons has to provide the town with 1 million clam seedlings every year for planting in unleased parts of Oyster Bay Harbor and Cold Spring Harbor. The company said in court filings it began making payments to the town in 2021 instead of providing seedlings.

Cammarata wrote that the town "repeatedly accepted payments … in lieu of seed" and Oyster Bay's "subsequent acceptance of those payments ratified the substitution.” 

The town also has alleged some of the boundary markers required under the vendor's lease in Mill Neck Creek were missing, damaged or in the wrong spot. A detailed list of markers included in the town’s filings said six out of 32 markers went missing and eight were damaged or in the wrong place.

Frank M. Flower & Sons didn’t dispute the town’s findings but noted that under the lease the company was entitled to “reasonable time” to repair or replace the markers.

The company also suggested recreational boaters may have been the cause of missing or damaged markers. 

The vendor disputed the town’s allegation that its boats mechanically dredged shellfish outside the boundaries of its lease in Mill Neck Creek, with Cammarata calling it “absurd" and saying vessels hadn't operated outside of designated transplant permit areas.

To try to demonstrate alleged trespassing, the town included a report by a consultant who used sonar to show disturbances on the seabed outside the boundaries — purportedly caused by a shellfish dredge.

The company responded by saying the report didn't differentiate between tracks caused by motor propellers and a shellfish dredge.

Frank M. Flower & Sons also noted it used GPS to track its boats’ locations and the New York State Department of Environmental Conservation supervised the company's transplant operations with onboard staff “every time.”

Town officials didn't respond to specific questions from Newsday about the vendor's arguments in the new court filing.

But town spokeswoman Marta Kane said in an email that “it’s assuring to learn that the company is conceding that it failed to meet its obligations to the taxpayers under the terms of the lease.”

Cammarata didn't respond to a request for comment.