Border Wars

Here’s how it works: The Oyster Bay/Cold Spring Harbor shellfish lands are separated into public domain land and leased lands. The boundaries of these underwater shellfish beds are marked by bamboo stakes bearing brightly colored flags. Most of the areas set aside for the baymen and public hug the shorelines of Oyster Bay Harbor, Oyster Bay Cove and Cold Spring Harbor, though the baymen say at least two-thirds are unproductive. Flower and Sons get the vast majority of the rest, along with a large stretch bordering Long Island Sound—though those grounds have long been disputed; the state believes it’s theirs and not Flower’s.

Licenses to dig for clams and oysters on LI are allotted by township and cost $400 per year in Oyster Bay. In order to get one, an applicant must prove residency—something baymen charge many of Flower’s ship hands don’t have.

The baymen’s lawsuit claims that in accordance with its 1992 settlement, the town was to have a licensed surveyor revise a 1937 map of the leased and public shellfish beds, and that this revision was never properly or accurately conducted. They say state law dictates that commercial shellfish companies such as Flower do not have the right to take naturally growing shellfish from state or public lands.

For Flower to move a flag marker—which Painter and Schultz and the others allege to the Press has been going on for more than two decades (even recording the alleged actions on their cell phones)—the company is effectively stealing from their families and the taxpaying public at large, charge the baymen.

“If that flag is put onto the public side, they could run that big boat through here and clean up all the clams in one or two passes,” explains Fred Menges, another member of the baymen’s group.

The Press recently accompanied Menges on an excursion out across the harbor to witness the allegedly illegal shellfishing practice firsthand.

Sure enough, several dozen yards off the southern tip of Center Island, in the shadow of a mansion estate, the Press observed two men on a boat tying a new bamboo marker with orange and red flags to a sunken weight, replacing one that had been damaged.

VIEW OUR “CLAM WARS” MULTIMEDIA PRESENTATION, INCLUDING MORE IMAGES AND VIDEO AT www.longislandpress.com/clamwars

When asked whether they were aware their actions were potentially against the law or whether they were licensed land surveyors, they declined to answer, saying: “Call the company. They will give you answers. Frank M. Flower and Sons. Call Dwight.”

Responding to questions regarding the alleged improperly defining, staking and marking of lease beds on behalf of the company—the co-owners are Dwight Relyea, brother David and Joe Zahtila—Ettelman tells the Press:

“The lease beds have been absolutely appropriately marked. The town has acknowledged that they are appropriately marked, and so there’s absolutely no merit to the argument. There’s no question that they’re appropriately marked. And they were done so, as I said, years and years ago.”

Gregory de Bruin, currently vice president of Gayron de Bruin Land Surveying and Engineering, PC, whose family’s former company A. James de Bruin & Sons worked with Flower in creating a map of Oyster Bay’s shellfish boundaries in the 1990s, says he too knows Flower has been using unlicensed surveyors to stake and tend to the flag boundaries. He tells the Press that Flower purchased GPS equipment to do the work themselves “rather than paying us on a regular basis to do it.” He verifies that the town did not have the latest coordinates.

“When we gave the map to the town in 1994, we supplied a list of the coordinates,” he continues. “If you look at the map, it says, ‘See also booklet entitled List of Coordinates for this map.’ Nobody in the town can find that. The town asked us for it. And we said, I can find the cover to the booklet and I can find the list of coordinates, but I don’t find a bound booklet in our records. The town doesn’t find it in theirs. So I forwarded the data to the town.”

He’s seen this before east of the county line. In 2007, as then-president of the Nassau-Suffolk Civil Engineers, de Bruin sent a letter to Suffolk County over concerns it was setting boundaries of underwater leases of its Shellfish Aquaculture Leasing Program without the services of a licensed surveyor: “Please be advised that this would be in conflict with New York State Education Law. Only licensed land surveyors may set and describe property boundaries.”

An Oyster Bay town bay constable verifies to the Press that they, too, have never had the actual coordinates for the boundaries—even though they’re charged with enforcing them and levy fines and violations for breaches. They go by the markers placed by Flower themselves, he explains.

“I’ve never seen the GPS coordinates for the flags marking the beds,” he admits, though stressing he did not want his name used in this story due to what he describes as “town politics.” “As far as, if we look at a flag, I have no coordinates to go on to tell me if that flag’s in the right spot or if it’s off by 100 feet or so.”

The bay constable, as well as the baymen, lament that the root of the problem is that the town, in its 1994 lease, stipulates that Flower “shall mark the lands underwater above described by stakes, buoys or monuments” and “shall have the sole right to all shellfish on the lands leased herein,” essentially allowing them to trump state law.

Berger, the baymen’s attorney, finds the bay constables’ lack of coordinates “absolutely incredible.”

“They’re out there enforcing under the guise of having information that could be utilized in a criminal proceeding,” he blasts. “In essence, really what they’ve done, they’ve made the bay constables a posse on behalf of Flower and Company.

“The bay constables aren’t working for the Town of Oyster Bay in this situation, they’re working for Flowers!” he adds.

But as charged as the baymen are about Flower’s tending to the flags—which they allege happens weekly—they’re even more heated about how the company goes about harvesting the shellfish, daily.