Appeals court sides with aquaculturist seeking to grow oysters, clams in Chincoteague Bay

An oyster farmer who applied for a lease to grow shellfish six years ago may finally be able to get his crops in the water.

Don Marsh, a businessman, applied to grow oysters and clams in Chincoteague Bay, in an area a mile south of South Point, near Ocean City and Assateague Island.

His neighbors objected to the lease, saying it obstructed their recreational use of the waterway.

Two fishermen also objected, saying that Marsh’s plans to place oyster cages on the bottom of the bay would interfere with their navigation.

Marsh’s application worked its way through the state approval process for three years. During that time, he reduced the size of the lease and made many accommodations to the protesters. But when the Department of Natural Resources announced a public hearing, the neighbors still protested. The first hearing before an administrative law judge, in October 2012, lasted three days. Much of it was taken up with the testimony of those who objected. The DNR only put on one witness, aquaculture manager Karl Roscher. Marsh also testified on his behalf.

Marsh lost the first case. The judge considered the fishermen “navigation experts” and took their word for it that the oysters would get in their way for fishing.

The judge also said granting Marsh a lease violated the public trust doctrine,

and that Marsh should have been applying for a submerged land lease, not a water column lease.

Marsh and the Department of Natural Resources appealed, asking for judicial review in circuit court. The circuit court said that Marsh had indeed applied for the correct type of lease. It upheld the department’s right to issue the lease.

Roscher said the department was “more than happy” with the decision.

The decision comes on the heels of a compromise that allows another oyster farmer, Scott Budden, to operate a farm in Kent County, which his neighbors initially opposed for similar reasons.