Note: Pickford v. Koeneman and Bruce v. Director, Department of Chesapeake Bay Affairs

1 ELR 50055 | Environmental Law Reporter | copyright © 1971 | All rights reserved

NOTE: Pickford v. Koeneman and Bruce v. Director, Department of Chesapeake Bay Affairs [1 ELR 50055]

Maryland's Chesapeake Bay waters afford an almost perfect environment for the growing of oysters.¹ Vast expanses of bottom are covered with waters of hospitable temperatures and salinities. These sheltered waters afford relative freedom from predators and diseases which have substantially impaired oyster production in Long Island Sound, Delaware Bay and Virginia waters.

Notwithstanding these natural advantages, Maryland's oyster production has suffered a dramatic decline. In 1880 the Maryland fishery produced 71.9 million oyters; in 1962, it produced 8.1 million. The decline is a product of various causes: pollution has reduced the available oxygen; bottom dredging and shoreline construction has resulted in silted beds; fertilizers and municipal wastes have nourished plant growth which displaces the food of oysters; herbicides and pesticides have poisoned both animal and plant life. But the main cause of decline has been the operations of the most sophisticated of predators — the oysterman. Oysters have been harvested to such an extent that the reproductive capacity of the fishery has been greatly diminished; shells have been removed in such great numbers that the oyster beds have been smothered by encroaching silt.

While Maryland's legislature enacted various regulations designed to conserve oysters and authorized expenditures of state funds to restore the oyster fishery, the impact of these regulations — as illustrated by these two recent Maryland cases — lends credence to the proposition advanced by Scott Gordon that "a great deal (perhaps the greater part) of what has been done in the name of 'conservation policy' turns out, upon subjection to economic analysis, to be worthless or worse."²

Economic theory, if implemented in practice, might possibly cure the ills of Maryland's oyster industry. The theoretical argument states that if Maryland's oyster grounds were not treated as common property (like water and air) available to all for the taking, as they have been historically, but rather were divided into private oyster farms (whether through state leases or outright grants), each oyster farmer would have an incentive to sustain the yield of his oyster grounds, and the state would not need to continue its efforts at regulating exploitation and subsidizing replenishment.³

Pickford v. Koeneman⁴ illustrates how the less-than-complete acceptance of the economic argument has partially frustrated Maryland's efforts to create private oyster grounds which would revitalize the state's oyster fishery. Although Maryland law has permitted the creation of private oyster grounds since 1830, there are significant impediments. Most important is the prohibition against private leasing of "natural" oyster or clam beds. Under statutory procedures, a lease application can be challenged in court, and if there is a showing that "the public has resorted to such beds or bars for a livelihood, whether continuously or in intervals, within five years …," the lease is denied.⁵ Just as homesteaders on Western lands encountered opposition from cattlemen with a stake in open range, oyster farmers have encountered concerted and organized opposition from watermen accustomed to an open fishery. In practice, almost any protest has served to frustrate a lease application and, according to one estimate, between 1914 and 1963 leases were consistently denied for private grounds larger than 15,000 acres.⁶

Opposition to issuance of the lease in Pickford came, not from oystermen but from clammers. The Bay's clam industry has grown in recent years, and clammers have joined the fight against development of an expansive private oyster culture. The court found, however, that due to a syntactic quirk in the statute the prohibition against leasing natural clam beds applied only to areas formally denominated as clam beds on charts maintained by the fisheries department and that therefore the lease should issue. Although Pickford favors the creation of private oyster grounds to a limited extent, nevertheless broader problems remain. Public oystermen and clammers can effectively veto issuance of private oyster leases upon a minimal showing that oysters naturally occur on the disputed bottom area.

Bruce v. Director, Department of Chesapeake Bay Affairs⁷ attacks the parochialism found in Maryland's shellfish laws. Over the years a requirement that [1 ELR 50056] shellfish takers reside in the county where they fish has limited outsiders' access to the shellfishery in waters abutting a county's shoreline. Such entry restrictions can be nominally justified as a "conservation" measure, because any limitations on the number of takers tends to minimize depletion; however, even after the residency requirement has been imposed, the number of eligible takers is still so large that shellfish depletion occurs. Under the shelter of these local residency requirements, watermen organized on a county-by-county basis and sought to perpetuate the county water system by lobbying for special protective legislation for their respective counties. Prior to the Bruce case, the Maryland shellfish code had become a jumble of laws applying different rules to fourteen different geographical units. (Thirteen Maryland counties abut tidewater containing substantial shellfish grounds, and the main arm of the Chesapeake has been designated by statute as a separate regulatory unit.)

In Bruce, Somerset County watermen, finding the oyster yield in their county waters significantly reduced by disease and the crab population erratic, sought access to the waters of other counties. They successfully convinced the Maryland Court of Appeals (Maryland's highest court) that county residency requirements create a classification system which lacks any reasonable relation to the public interest, and that the requirements therefore constituted an unconstitutional denial of equal protection.

The facts in Bruce did not force the court to deal with the constitutionality of the provision in the shellfish laws which denies non-residents of Maryland access to the fishery. But since a holding which voids county residency requirements on equal protection grounds at least suggests that state residency requirements may likewise be unconstitutional, the court in an elaborate dictum supported the constitutionality of the provisions which limit access to the shellfishery to Maryland residents. These provisions appear to violate the Equal Protection and Privileges and Immunities Clauses of the federal Constitution, but the court avoided such a conclusion by drawing upon the hoary doctrine of McCready v. Virginia,⁸ in which the U.S. Supreme Court held in 1876 that Virginia's "ownership" of oysters justified exclusion of Maryland's residents from the fishery, because more than a privilege or immunity of Virginia's citizens was involved.

Although the Maryland Court of Appeals rather clearly indicated that it will not invalidate them, Maryland's residency requirements appear vulnerable to constitutional attack in federal court. State "ownership" of oysters should not insulate the residency requirements from constitutional attack. The U.S. Supreme Court has rhetorically undermined the continuing validity of the McCready doctrine on several occasions, most recently in Graham v. Richardson, decided on June 14, 1971.⁹ As the Court intimates, such a use of "ownership" is but another way of verbalizing the now discredited "privilege not a right" distinction. In less abstract terms, the court has indicated a renewed willingness to strike down discrimination against non-residents. First in Shapiro v. Thompson,¹⁰ decided in 1969, and now in Graham v. Richardson, the Court held that state statutes which denied welfare benefits to non-residents and resident aliens violated the Equal Protection Clause. Such holdings, which preclude states from discriminating in the allocation of state funds (certainly as much state property as oysters), dispel the notion that ownership can function as an excuse for invidious discrimination.

Finally, the Court could attack the residency requirement in Maryland shellfish law from a different angle. In broadest terms, Shapiro v. Thompson was bottomed on a right to interstate travel. This right, coupled with the Commerce Clause, arguably gives fishermen the right to their catch anywhere in the navigable waters of the nation, free from regulations designed to protect local monopolistic interests.

In sum, Pickford v. Koeneman and Bruce v. Director highlight inadequacies in the present regulation of Maryland's shellfishery. The decision in Bruce may be sufficiently catalytic to make some legislative reform politically feasible, perhaps prompting the development of an internally consistent, rational system of regulation and the removal of obstacles to the effective creation of private oyster grounds. But the opening of Maryland waters to non-resident fishermen will come only through litigation in the federal courts.

50053) on Board of Public Works v. Larmar, 1 ELR 20230 (May 10, 1971), and of the Monograph, Chesapeake Bay in Legal Perspective, Federal Water Pollution Control Administration Estaurine Pollution Study Series-1, 270 pp. (March, 1970), which is cited extensively by the court in the three cases involved.

1. The basis for the case analysis contained in this Note appears in Power, More About Oysters Than You Wanted to Know, 30 Md.L.Rev. 199 (1970). Those interested in more complete citations should see that article.

2. Economics and the Conservation Question, 1 J. Law of Econ. 110-11 (1958).

3. See Garrett Hardin, The Tragedy of the Commons, 162 Science 1243 (Dec. 13, 1968).

4. Md. , 277 A.2d 1, 1 ELR 20277 (1971).

5. Md.Ann.Code, art. 66C, § 708 (1970).

6. F. Christy, Jr., The Exploitation of a Common Property Natural Resources: The Maryland Oyster Industry 93, 1964 (unpublished U. of Mich. Ph.D. dissertation 1964).

7. Md. , 276 A.2d 200, 1 ELR 20271 (1971).

8. 94 U.S. 391 (1876).

9. 39 U.S.L.W. 4732 at 4733-34; see also, Toomer v. Witsell, 334 U.S. 385 at 402 (1948).

10. 394 U.S. 618.

1 ELR 50055 | Environmental Law Reporter | copyright © 1971 | All rights reserved