Although New York State Supreme Court Judge Geoffrey O'Connell has ruled that the Town of Oyster Bay does not have the right to decide if Commander Oil can dredge the east side of its dock, the fight is still not over.

Harold Shapiro, CEO of Commander Oil said of the O'Connell decision, "We are very pleased with his decision, which says that Commander Oil has a right to perform dredging in Oyster Bay Harbor.

"We are pleased that the court held that dredging was reasonable and necessary to assure safe and economical use of the dock. It's something we need to conduct our business. We're not going in to destroy this harbor. We just want a safe berth for the vessels that come into our harbor."

He added, "Commander will continue, as in the past, to act as a responsible neighbor in completing this work."

The town's view of the decision is different. Town of Oyster Bay Supervisor John Venditto said he will bring the case back to the Appellate Court. Mike Deering, executive director of Friends of the Bay said they will continue to support their claim that Commander Oil is attempting to expand their operations in the harbor as they dredge.

Deputy Attorney Anthony Sabino said "This is the first time in the state of New York that dredging is seen as a riparian right. We could have everyone dredging without going to us."

Supervisor John Venditto agreed. "It is a new right to dredge. There is no precedent to doing this. That's why we feel comfortable that the appellate division will agree with us. I feel from a legal point the decision is wholly misguided."

In Judge O'Connell's decision, he wrote, "The Andros Patent by which the Town of Oyster Bay holds title to the land under Oyster Bay was granted at a time when neither the State of New York nor the United States existed. With both King Charles II and the Duke of York, his brother and the colonial proprietor, separated from the colony by an ocean, the colonial patents were intended to confer a measure of home rule. State of New York v trustees of the Freeholders and Commonality of the Town of Southampton, 99 AD2d 804, 808 ". After the Declaration of Independence, title went to the states, but, the judge wrote that "Nassau and Suffolk Counties were afforded special treatment as to their navigable waters." He says the public has "a right of navigation and fishery" and that comes before the property rights of the town. The town does not have the right to control the underwater rights, it is the private owner who has the right, he said, in his August 20, 1998 decision.

Mr. Sabino said, "That means the rights of the municipality are less than the normal homeowner. That is what is driving his entire decision".

Mr. Venditto said, "He is confusing navigation rights and ownership rights." He said, defining the role of the town, "Whatever we do is in the public interest, that is the function of government. The judge is saying - you are not owners. You are pretending. An old document says it, but it's not real ownership.

"We disagree with that. It is the town's obligation to act in the public interest. Only through the town board, and public comments to the board, does the public get the ability to express its opinion."

Mr. Sabino said, "Isn't it incredible that Commander has never come before the town for a permit. We own the land and he must come to us. We might find a more environmentally sound way to get it done."

Three years ago, the Commander Oil Company applied to federal and state government for permission to dredge on the Oyster Bay waterfront. The Town of Oyster Bay believes along with Friends of the Bay that the dredging is an expansion of oil operations by the Commander Oil Company. The town told federal and state officials that the dredging represented an expansion of Commander's oil traffic operations and dramatically increased the threat of an oil spill in the sensitive harbor. That harbor is now the focus of a waterfront revitalization plan.

The town sued, arguing that it should have a say in the matter, but the lower court supported Commander's access to the waterfront. One year ago, the Appellate Court reversed the lower court's approval, asserting that the town had the right to protect its citizens.

Mike Deering, executive director of Friends of the Bay said, "The lower court's decision is a threat to the sovereign powers of the town, the natural resources of the bay, and every resident of Oyster Bay. The oil company and lower court fail to understand that this is about a local government's obligation to all of its citizens to protect their environment. It is not an academic or legalistic exercise."

As the stalemate continues, Commander Oil remains unable to expand its gas and oil operations until the final determination of the court. "Friends of the Bay is resolved to fight along with the Town of Oyster Bay and the Attorney General in the courts for the protection of Oyster Bay and all it means to our economy, environment, and our quality of life," said Mr. Deering.

In the court decision, Judge O'Connell implied that the town of Oyster Bay twice didn't respond to a proceeding to compel the NYS DEC to revoke the permit it had issued for proposed dredging and a proceeding challenging the NYS DOS saying the dredging was consistent with the NYS Coastal Management Program. Mr. Sabino said the reason was that "The state agreed if we did not go ahead and perfect the appeals, they would join us in the appeal. Everyone agreed the right thing to do was to get the state as an ally."

Supervisor John Venditto, the former town attorney, said "I get the bend that he just doesn't feel the town has the right of lawful determination. We've come full circle. Much of what he wrote in that opinion has nothing to do with dredging, it is on the rights of navigation."

The decision blames the deposits of silt on the sand spit near the dock on the state's storm water runoff system. Mr. Sabino said there is a natural amount of silt that would occur at White's Creek without the storm water drain.

In the decision Commander Oil said using the east basin (which is the area most consider as expanding the business) for tying up barges lessened the risk of an oil spill during a northeaster. That was unchallenged and uncontradicted, the judge said.

A few years ago, an oil barge that had been unloaded crashed into a Flower's boat as it was tied up on the Oystermen's Dock. It destroyed the wheel house. The empty barge, which raised out of the water as it was drained, looked and acted as a sail and caught the wind as it sat on the west side of the Commander facility. At that time, Franklin Flower said in an interview with the Oyster Bay Enterprise Pilot, that there should be another dolphin for the boats to tie up more securely.

Mr. Venditto said that was an example of what could be brought out if a public hearing on the dredging were able to take place. He said, "The people were precluded from giving any input."

Mr. Sabino said, "They should come to the town. We can look at the dredging. If we act improperly, he (Commander Oil) can come to get relief."

Mr. Venditto likened the dredging case to a zoning code. "We have the power to make people come before the board on their land. In this case, the judge says they don't have to come before us."

He said in a week or so they hope the state will again join them in the new appeal. "They have indicated they are not happy with the decision, again," said Mr. Venditto.

He said they are in a similar position with quite another body of land. They own a lot of underwater sites too. This decision could affect all municipalities on waterways. "We feel comfortable that common sense will win in the appellate decision. We will conclude it is a matter of local decision making."