In what the Town of Oyster Bay is calling "a major legal victory," the New York State Supreme Court Appellate Division has reversed a lower court ruling that would have allowed Commander Oil to dredge in Oyster Bay Harbor.
In a unanimous ruling, the court said, "An upland owner has no riparian right to dredge public underwater lands in the absence of the public owner's permission. Further, granting such a right would limit the Town's ability, as a public trustee of the underwater lands, to balance the many diverse and competing interests in the coastal resource for the benefit of the public."
"Friends of the Bay is absolutely delighted with the court's decision," said FOB Executive Director Denise Wooden. "Any expansion of activity by Commander Oil would threaten the fragile coastline and pristine waters of Oyster Bay. Furthermore, we concur with the town and the New York State Attorney General that a town has a jurisdictional right to control its own resources on behalf of the public."
Earlier this year, New York State Attorney General Eliot Spitzer filed an amicus curiae on behalf of the town. Oral arguments before the town were made in October by Town Attorney Anthony Sabino.
The court upheld the town's right to be the lead agency in decisions about what happens in the harbor.
Oyster Bay Town Supervisor John Venditto said, "This is a total victory for the Town of Oyster Bay and its residents. The town board is very pleased that the court has upheld our right to protect environmentally sensitive waters from which the town derives its name."
According to Mr. Venditto, when Commander Oil received permission from the NYS Department of Environmental Conservation (DEC) in 1994, to perform what they characterized as maintenance dredging, one of the DEC requirements was that Commander receive approval from the town as underwater landowner. When Commander maintained that it did not need town permission, the town filed suit in State Supreme Court.
"The town maintained that both 17th century English and American common law gave them ownership of the underwater lands in Oyster Bay Harbor, which, conversely gave them the right to regulate harbor activity," said Mr. Venditto.
"The town also maintained that Commander had not proven a need to dredge," he said.
"Dredging may have posed a danger to the water quality and fishery resources in the entire harbor area. In addition, dredging the east basin may have negatively impacted the existing sand spit, which may compromise its environmental integrity as a habitat for marine life, grasses and, at low tide, a resting place for birds," said the supervisor.
Harold Shapiro, CEO of Commander Oil, said his company is evaluating their next move in light of the recent court decision. They have maintained that the dredging is for maintenance.
Oyster Bay Attorney Marvin Morison said Commander can still go to the NYS Court of Appeals. The Supreme Court is not the highest court in the state: it is the trial court. Cases are appealed from the trial court to the Supreme Court Appellate Division where this decision was made. When a case fails there, it can opt to go to the NYS Court of Appeals.
If Commander wants to continue in the courts, they have to appeal there. If they decide not to go through the courts, they must ask the town for a permit to dredge since the town has proven it has jurisdiction over the harbor including the permanent injunction against Commander's dredging, granted by the court.
Friends of the Bay sees the dredging as an expansion since they are proposing to use a dock they have not used in their business for many years.
Ms. Woodin said, "Friends of the Bay commends Supervisor Venditto for tenaciously defending the public interest and for recognizing the importance of protecting Oyster Bay Harbor. Our town officials, Attorney General Spitzer and everyone else who made this victory possible are truly "friends of the bay."