Cowboy Vs. Bayman Showdown

There's a miniature range war brewin' down Montauk way over bottomland owned by Rick Gibbs, the Crabby Cowboy, as he's known in those parts. Actually, the Crabby Cowboy is the name Mr. Gibbs has given his East Lake Drive resort and restaurant, formerly the Blue Moon.

At least one bayman thinks the Crabby Cowboy name fits. Mr. Gibbs has chased him off the five acres of bottomland be bought last year along with five upland acres.

The property contains boat slips, a restaurant, a number of resort accommodations, and, if Mr. Gibbs's plan works out, a clam ranch that will supply his restaurant for part of the season. He said on Monday he had already paid $100 to the state for an aquaculture permit.

Don't Fence Him Out

Don't fence me out, says Anthony Sosinski, a bayman who concentrates much of his digging in Lake Montauk. Mr. Sosinski claims Mr. Gibbs lacks the right to keep him from digging clams, and also believes the Cowboy will be hard-pressed to get state permission to grow clams for his patrons' consumption.

After researching town records in the East Hampton Library, Mr. Sosinski made his argument during a Town Board work session last month. He told the board Mr. Gibbs was not the only owner of private bottom to chase clammers away.

"Since I have been shellfishing in Lake Montauk, there have been disputes about who owns what. The town owns some of the lake, and the residents own some. The problem is, we, as shellfishermen, don't know who owns what."

Who Owns The Clams?

"There have been incidents," said Mr. Sosinski, "where the landowner has taken the shellfish out of people's trucks, because they say they own the clams because they come from their land."

The clammer said his research had shown this was not the case - that in 1983, the town initiated a program to stock Lake Montauk with clams. "They were for all the residents." He said state law saw clams as a common resource.

On this point, Bill Hastback, a shellfish specialist with the State Department of Environmental Conservation, agrees, at least in part.

Common Property. . .

"An individual private bottom-owner does not have clear ownership of the resource," he said, citing a legal precedent set five years ago when a similar dispute arose in Asharoken, in the Town of Huntington.

State Supreme Court Justice Peter Cohalan ruled then that because free-floating shellfish larvae settled heedless of property lines, mature shellfish were common property, just like free-moving finfish and scallops.

Stuart Heath, another Lake Montauk bayman, said this week that few property owners seemed to know the law. He fears that local police, who are sometimes called by property owners to chase away baymen, may not be familiar with it either.

"This is not a hobby. It has a direct effect on my income if I'm ordered out of an area," Mr. Heath said.

. . .With One Exception

The exception to the law, Mr. Hastback said, is when a bottomland owner gets permits for the "on-bottom culture" of shellfish and actively engages in their farming and marketing, as Mr. Gibbs intends.

While Mr. Gibbs has applied for his permit, he has not received it, and technically cannot keep people from clamming until he does.

According to Debbie Barnes, who handles bottom-culture permits for the D.E.C., one drawback in Mr. Gibbs's plan is that his property is in an area closed to shellfishing from May to November.

'On-Bottom Culture'

Not a problem, Mr. Gibbs said. "I plan to be open year-round. I have a resort property and a restaurant, and I'll have clams and steamers I can harvest and sell in the restaurant. It will help pay the property taxes each year."

"I would rather do that than fight the town to make this place larger," he added.

He intends to put horses on his five acres, too, he said, "instead of 10 more units," and instead of trying to squeeze more boats into his small marina. He has applied to the Town Zoning Board to put a corral on the property.

"I want it to be part of East Lake," said Mr. Gibbs, "not a club. The place will close early. I believe in building to suit the land. The spawn from my clams will go throughout the lake. I want to give back to the lake."

Clam Ranch

Greg Rivara, an aquaculture specialist with the Cornell Cooperative Extension Service, said he had met with Mr. Gibbs and believed the clam ranch was technically feasible.

"Five acres is enough to support a cottage industry," Mr. Rivara said this week. "He's not going to get the Fourth of July because of the closure, but the price of clams at Christmas is just as high."

Both Mr. Rivara and Ms. Barnes said the proposed farm's proximity to the Crabby Cowboy's own marina, and to Gone Fishing Marina next door, did not preclude the farm as long as the harvesting took place outside the closed season.

Dredging Disruption

Bayman and would-be clam-rancher alike are concerned about continued dredging in the area, which could disrupt shellfish beds and bury the resource.

Mr. Rivara, however, said approv ed dredging projects included safeguards such as "silt curtains" that keep nearby shellfish from being buried.

Mr. Sosinski said on Tuesday he was not giving up on his effort to keep Lake Montauk an open range for commercial shellfishermen. He said he knew of the proposed farm, but there were other arguments to make.

Before 1852, the right to fish in Great Pond, as the lake was known, was a common right, he said, guaranteed by the Dongan Patent of 1686.

Bayman Cites History

The right remained after the breakaway, and after Arthur Benson's purchase of Montauk in 1879, Mr. Sosinski contends, because that purchase did not include land below the low-tide line. Therefore, the bottom remained common land, just as in the rest of East Hampton's harbors and bays, which Town Trustees have owned and managed since colonial times.

Furthermore, said Mr. Sosinski, when the lake was opened to Block Island Sound in the mid-1920s, "it became Federal tidal waters," and after the inlet was dredged in 1936 "to qualify for Federal construction [funds], the town and the county agreed to provide certain public rights in the use of the water."

Shellfishing is one of the rights, Mr. Sosinski said.

Town Councilwoman Nancy Mc Caffrey said the Town Board was unlikely to take up the question unless and until Mr. Sosinski files a complaint with the town attorney's office.