The New York State Court of Appeals, the highest court in the state made a decision in the Commander Oil dredging case on Thursday, Oct. 18. Different people view the decision differently. Harold Shapiro, president of Commander Oil Corporation views it as a win: Oyster Bay Town Deputy Attorney Anthony Sabino sees it as a need to prove that dredging would be an environmental hazard to the bay; Friends of the Bay Executive Director Denise Woodin sees it as a setback for the Town of Oyster Bay and a dismay to Friends of the Bay, that the New York State Court of Appeals has reversed the Appellate Court's injunction prohibiting Commander Oil from dredging in Oyster Bay Harbor.

"Friends of the Bay is extremely disappointed with the court's decision," said Ms. Woodin.

Harold Shapiro, president of Commander Oil Corporation, said on Thursday, Oct. 18, that the company was "Very pleased with the Court of Appeals" decision.

He said the decision says Commander has a "right to reasonable access, and nothing in those cases would preclude Commander from dredging to preserve such access, if the court was satisfied that dredging was necessary and did not unreasonably interfere with the rights of the town."

While sending the case back to the Supreme Court for further deliberation of the issue's reasonableness, the Court of Appeals stated:

"In remitting, we do not contemplate these proceedings extending the litigation years into the future. For a business like Commander, a determination indefinitely postponed may well be worse than an adverse decision.

"While we will not direct that Supreme Court make its determination based solely on the existing record, we strongly suggest that it do so insofar as it can," said the decision.

Mr. Shapiro said in his statement, "Commander is confident that after review of the record, the Supreme Court will find once again that Commander needs to dredge both basins and that such routine maintenance dredging does not unreasonably interfere with the rights of the town."

Town of Oyster Bay Deputy Attorney Anthony Sabino didn't agree that Commander Oil has permission to dredge. "They did not give Commander Oil the right to dredge. They are remitted to the Supreme Court for additional findings on whether or not they have the right to dredge," he said.

He offered a synopsis of the decision from the Oct. 19 Law Journal that noted the case has "dragged on for six years." Judge Judith K. Smith said "for a business like Commander, a determination indefinitely postpones may well be worse than a reverse decision." The article says the town, which owns the submerged land, permitted Commander to dredge periodically. Commander has had a series of leases for the land over the years, the last lease expired in 1985.

The judge said what was needed was a balancing test, said Mr. Sabino, "which is a good decision."

She wrote "neither the riparian owner nor the underwater landowner has an unfettered veto over reasonable land uses necessary to the other's acknowledged rights, and where the rights conflict the courts must strike the correct balance."

The Law Journal agreed with Mr. Sabino's interpretation of the decision. It said, "Chief Judge Kaye stressed that the court was not holding that Commander as a riparian owner, had a general right to dredge. Rather, she said that more than a century of common case adjudication on a riparian's access rights indicates that there is no reason why Commander should be precluded from dredging to preserve access 'if the court was satisfied that dredging was necessary and did not unreasonably interfere with the rights of the town.'"

Attorney Sabino said the case is going back to the Supreme Court to weigh Commander's right to dredge with the town's right to protect other interests in the harbor. "Those things are environmental, shellfish health, recreational and navigational interests as well as other things of that nature," he said.

"The town is going to do its best to come out with appropriate environmental reasons to keep from dredging.

We have already hired experts to talk about harbor management. Now I have to do it for the third time," he said.

Mr. Sabino summed up his take on the decision with: "Speaking as someone who understands the system the Court of Appeals did what it does, which is to determine who has the most paramount right in the case: thus the balancing act will go back to the Supreme Court."

Friends of the Bay Executive Director Denise Woodin said, it's a setback for the Town of Oyster Bay.

"Friends of the Bay is extremely disappointed with the Court's decision," said Executive Director Denise Woodin. "Any expansion of activity by Commander Oil will 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."

Ms. Woodin gave a history of the case. In 1994, Commander Oil applied to the NYS DEC, NYS DOS and the U.S. Coast Guard for permission to dredge in Oyster Bay. Although Commander argued that dredging of its eastern basin represented routine maintenance, in fact the basin has not been dredged since the 1970s.

In 1996, after Commander had received state approval, the Town of Oyster Bay filed a suit seeking a permanent injunction against the dredging, maintaining that as the underwater landowner, it has the right to grant or deny permission for any activity on its land. The Town was supported in its case by NYS Attorney General Eliot Spitzer, who filed a "friend of the court" brief.

She said FOB was heartened when the Appellate Division ruled in 1999 that "an upland owner has no riparian right to dredge public underwater lands in the absence of the public owner's permission...granting such a right would limit the Town's ability, as public trustee of the underwater lands, to balance the many diverse and competing interests in the coastal resource for the benefit of the public."

She said, "protecting the bay from oil spills and leaks is clearly a public benefit. While FOB recognizes the need to provide heating oil for Long Island, we also need to protect Oyster Bay's other economic assets, such as the oyster and tourism industries, not to mention water quality, habitat and the natural beauty of the bay."

Noting that since the case began six years ago the Commander property has been sold to the investment company Island Properties, Woodin said, "No matter what the legal outcome, we hope that Commander Oil does not rush to dredge. The future of the property is very much in question, and Friends of the Bay is working with Island Properties, civic organizations and local residents on a redevelopment plan that respects the health of the bay and the needs of the community."

Ms. Woodin added, "Friends of the Bay commends Supervisor Venditto for tenaciously defending the public interest and for recognizing the importance of protecting Oyster Bay Harbor for all these years. Our Town officials and Attorney General Spitzer are truly 'friends of the bay.'"

Abraham Poznanski of Island Properties fine tuned the information about Commander Oil. "Technically, it's an affiliate of Island Properties. The Commander Oil Corporation sold the property and the business to Island Properties and Harold Shapiro is an employee of Island Properties affiliate, Commander Terminals. He is still president of Commander Oil Corporation, the company that used to own it and continues to own the terminal in Great Neck."

Mr. Poznanski said "When he sent the release it was not endorsed by Island Properties. We weren't aware of his press release. It was sent out under Commander Oil Corporation's name."

When asked how he felt about dredging, Mr. Poznanski said, "Island Properties is working with the community to figure out what we want to do with our properties and how to support the efforts of the Quality Communities Committee and how we can revitalize the town. We are working with all groups. We don't believe the dredging is necessary. I don't believe it.

"Obviously if it is (necessary) that is why Commander Oil is involved in the litigation. This litigation has been out there for some time, but we are not a party to this litigation. We are trying to work with the town to do the right thing," said Mr. Poznanski.

When asked if he saw the Commander site useful as a ferry dock, he said, "absolutely not; not a ferry dock. I don't think it's practical and it doesn't make sense in Oyster Bay. They have it in Glen Cove and it's not a long drive to Glen Cove. It's not feasible to me. I'm not interested in doing a ferry out of Oyster Bay."

Harold Shapiro is still in charge of Commander Oil. He said, "I'm running the business."

When asked for how long he intends to do that he quipped, "When is it going to snow the next time?" He is not ready to retire, he said.

Of the lawsuit, he said, "It's only been (going on) over six years, that's all."