NY Clammers Urge Court to Shuck Regulations

CENTRAL ISLIP, N.Y. (CN) – New rules for New York’s shellfishing industry have triggered a federal complaint by a clamming conglomerate, saying the burdensome regulations hurt business at every level, from harvesters and vessel owners to shippers and distributors.

Aqua Harvesters is at the helm of the 22 entities that filed suit Thursday in the Eastern District of New York, claiming vessel restrictions for the New York Atlantic Surf Clam Fishery violates their constitutional rights.

The New York Atlantic Surf Clam Fishery is an area off the Long Island coast that is used exclusively by 17 harvesting companies. New York’s Department of Environmental Conservation has prohibited any new companies from entering the fishery since 1993.

Declining clam populations in the fishery around that time due to overfishing led to tensions among clammers. The fishery has been more tightly regulated in recent years, again stirring up frustration among the clamming companies.

Thursday’s lawsuit challenges three New York regulations, one of which regulators just adopted in July 2016.

The Single Permit Rule, as it is known, is already making waves for the industry. By restricting clammers to only one quota allocation per permit yearly, the complaint says the rule “threatens the continued survival of the industry’s harvesting, shipping, and processing participants.”

One clamming plaintiff Edgar Seafood says it had to stop using a vessel to harvest surf clams because the vessel had already reached its allocation for Shellfish Inc.

Effectively, the rule prohibits companies from sharing vessels. The clammers say this is particularly harmful because less than half the harvesting companies own their own vessels.

Another rule mucking things up for the industry, according to the complaint, is the Residency Rule, which prohibits surf clam vessels owned by non-New York State entities from being used in the fishery.

The companies also take aim at the a rule that restricts the length of “new” vessels brought into New York waters to 70 feet or less.

The plaintiff clammers — 15 of which belong to the group of 17 companies allowed to clam in the fishery — use vessels leased from out-of-state companies, all of which exceed 70 feet in length.

They say New York’s rules are so restrictive that only five of the 17 companies last year owned vessels capable of being used in the fishery.

The clammers note in the lawsuit that that the 70-foot rule replaced a 90-foot rule that had been deemed unconstitutional in 1989. “The Seventy-Foot Rule and the Residency Rule are unlawful protectionist enactments intended to deny out-of-state vessels and entities the right to harvest and/or operate in the New York Surf Clam Fishery,” the complaint states.

Half the clamming companies have been frustrated in their ability to harvest their allocation because of the residency and single-permit rules, according to the complaint.

Department of Environmental Conservation spokeswoman Erica Ringewald declined to comment on pending litigation.

The clammers allege violations of the Shipping Act and the commerce and equal-protection clauses of the U.S. Constitution. They are represented by J. Lee Snead in Bellport, N.Y.

Clammers use hydraulic cranes in the fishery to dredge up clams used for bait and to be processed into canned sauces, chowders and other food.

“The right to continue to use a commercial fishing permit is considered a protectable property ‘interest’ under federal law,” the complaint states, noting that state regulators have called surf clamming a “fundamental right.”