Long Island clam diggers can proceed with some of their claims against an underwater leaseholder and the town that granted the leases, a Nassau County judge has ruled. The North Oyster Bay Baymen’s Association and several individual clam diggers sued the Town of Oyster Bay, Frank M. Flower & Sons and New York state, looking to void the 30-year leases the town granted to Flower & Sons. The town is permitted under its regulations to lease its underwater lands for the right to harvest shellfish. Under its laws, the underwater lands cannot be leased if there is “an indicated presence” of enough shellfish “to support significant hand raking and/or tonging and harvesting.”

Flower & Sons, a commercial shellfishing company, renewed leases from the town for a 30-year-term in 1994. The association claimed the leases were illegally renewed because there was a sufficient amount of shellfish for handraking. In 1991, the plaintiffs filed a similar action looking to void Flower leases, but eventually settled.

In a Jan. 17 decision, Supreme Court Justice Stephen Bucaria (See Profile) partially denied the dismissal motions from Flower and the town. In North Oyster Bay Baymen’s Association v. Town of Oyster Bay, 009210/11, he said, “presumably” there were too few shellfish for handraking when the leases were renewed in 1994. “Nevertheless, because marine and environmental conditions change, during the lease term there may come a time when there are sufficient shellfish to permit handraking or tonging,” he wrote, saying he had to assume in the context of the dismissal motion there were sufficient shellfish for handraking when the action was filed.