Bay Journal

Oyster poaching in VA a cat & mouse game with serious consequences

  • By Leslie Middleton on March 11, 2014
Virginia Marine Police officers come alongside Rickey Walton’s skiff for a routine spot check on the Rappahannock just after sunrise, the legal time to start working the oyster beds. Walton said that he’s been getting his eight-bushel limit every day.  (Leslie Middleton) Wayne France, right, provides copies of his paperwork to Marine Police Officer Billy Franklin, while his son looks on. Virginia requires anyone who grows, harvests, shucks, packs or ships oysters for commercial purposes to pay an oyster user fee. Proceeds go to the Oyster Replenishment Program.  (Leslie Middleton) Marine Police Officer Trevor Johnson uses a VMRC standard culling iron and tub to check a random bushel of culled oysters to see if they are undersized, empty or mud-filled shell. Shellfish violation penalties now vary from a Class 1 misdemeanor to Class 6 felony.  (Leslie Middleton)

During the day, they watch to see where the marine police are patrolling and head in the other direction to public grounds that are closed for the season.

Or their boats pull small, quick “hand dredges” over oyster beds that have been set aside by the state as sanctuaries to replenish oyster stocks in the river or the Bay.

Or, as Tommy Leggett of the Chesapeake Bay Foundation tells it, they wade out from shore to cages holding oyster-grow bags, flip them open and empty the contents into their own containers, all under the cover of night.

Leggett has been hit twice: once on grounds he has leased for his business, Chessie Seafood and Aquafarms, where he grows oysters for market, and once on the grow-out cages he oversees for the CBF.

These are all forms of oyster poaching, and to undertake any — and get caught — now results in a felony charge in Virginia. Since last summer, the Virginia Marine Resources Commission has stepped up surveillance and revoked five licenses for one or more egregious offenses.

Before July 1, 2013, offenders had to be caught three times before their license was revoked. Now, the penalty can be levied on the first conviction and result in loss of all saltwater fishing rights — not just shellfish — for up to two years.

The VMRC oversees oyster grounds and harvests in Virginia, including millions of dollars of investment in replenishment efforts to rebuild the stock since historic lows in 1997.

Those investments have paid off, said Col. Rick Lauderman, chief of VMRC’s law enforcement division. Virginia’s oyster harvests have quadrupled in the last five years — from 95,453 bushels in 2008 to 411,504 in 2013.

Poaching, too, has been on the rise. In 2011, the VMRC ramped up monitoring and has dedicated teams of officers to patrol different areas of Virginia’s submerged lands to enforce shellfish regulations. “We focus a lot of attention on the closed areas, the sanctuaries and beds that are closed because of bacteria pollution,” Lauderman said.

The marine police patrol by boat, on the land — and from the air. There’s a hotline for people to call in tips. “A lot of our intelligence is actually from watermen,” Lauderman said.

“We have other methods, too,” he said but declined to share these publicly.

It’s been working.

Between 2010 and 2011, the number of oyster summonses more than doubled from 69 to 153. In 2012, there were 240 summonses. (The summons requires the waterman to appear before the judge in district court for misdemeanor charges or circuit court if the citation is for a felony offense.) In 2013, so far there have been 94, and Lauderman says there are dozens of cases pending adjudication in court.

2013 promises to be a banner year for oyster harvests in Virginia from both public grounds and aquaculture.

Jim Wesson, head of the VMRC’s Oyster Replenishment Program, thinks the positive news about how good the oystering is, coupled with a poor crab season, has caused a lot more fishermen to start oystering.

“When you have the same number of oysters to be caught every year and more people oystering, then everybody just gets a smaller piece of the pie,” Wesson said. “It makes it hard to avoid poaching for those that need to make a day’s work every day.”

And the hand dredge is part of it, too, Wesson said. They’re good for the oyster bed, he explained, “but they’re just as efficient and just as quick to drop into places you’re not supposed to be.”

Wesson said the stiffer penalties act as a deterrent for watermen who might be on the fence about illegally going after oysters. “If they are tempted to do something wrong, now they’re thinking two and three times about it.”

“But the ones that we’re having the problems with, I think are pretty deliberate and premeditated. They’re just looking at how to avoid getting caught, so they are tough.”

The VMRC is especially concerned about the sanctuaries and private beds, the public bottoms that watermen and the larger oyster companies lease for aquaculture.

“We’re very concerned about what takes place on private grounds and the sanctuaries,” said Tommy Kellum, owner of Kellum Seafood. “We own a lot of leases on private bottom, and we’re tying up thousands of dollars in replenishment efforts. We have to keep an eye on our investment to make sure no one is stealing from us.”

He’s also concerned when poaching takes place on public restoration projects. Thousands of acres of beds have been restored by the Army Corps of Engineers and National Oceanic and Atmospheric Administration with help from The Nature Conservancy, the CBF and other nonprofits. ”Sometimes it’s easy to blame the lack of success on the project, rather than poaching,” Kellum said.

He thinks the stiffer penalties are starting to pay off. “But it’s frustrating that it’s always the same folks who ‘rape and pillage’ the resource.”

Wayne Frances, a waterman who serves on several VMRC advisory boards, including the one for shellfish, is not sure the penalties have made a difference yet.

“Most of the time it takes a few people getting penalized before getting everybody’s eyes’ opened up. And if they see a couple of people who have to pay a big fine, or lose a license, then people really buckle down.”

Enforcement ultimately follows the rule of law, and in Virginia, infractions are heard by — and decided upon — by civil courts before they are sent on to the VMRC, which ultimately decides the penalties.

It’s not uncommon for judges in district and general courts to dismiss cases or find the defendant not guilty, even when the evidence is clear-cut.

Wesson explained that many judges don’t know or appreciate the investments made to build the oyster population so that watermen can make a decent living. “They think that somebody who steals a carton of cigarettes at a 7-11 should be taken more seriously than someone who steals $1,000 worth of oysters.”

In September 2013, the commission revoked the licenses of five commercial oyster harvesters, “who had pleaded guilty in criminal court to repeatedly harvesting more than their fair share,” said acting VMRC commissioner John Bull. But, the case was appealed and “the judge [in the higher court] ordered the licenses reinstated for the three watermen who were revoked for two years by the commission,” Bull said.

The CBF is working with the VMRC and the industry to educate judges. “Educating them about the importance of oyster restoration and the importance of oysters in the Bay and the need to tighten up on poaching would go a long way,” Leggett said.

“This public resource belongs to everybody in the state, “ Leggett said. “Oysters help clean the Bay, they filter the water, among the many other benefits they provide…and we’re not going to clean up the Bay without healthy oyster populations.”

The VMRC is optimistic about Virginia’s oysters. “We’re using the tools we have: short seasons, time limits, bushel limits, cull sizes, gear limits,” Wesson said, “so we just have to keep the guys following the rules.”

Honest watermen as frustrated as marine police with poachers

On a clear, cold February morning, Marine Police Officers Trevor Johnson and Billy Franklin’s 28-foot Contender skiff eased alongside Rickey Walton’s boat in Rotation Area 7, the public oyster grounds in the Rappahannock River between the “Punch Bowl” and Rogue Point.

For the last three years, fishing on Virginia’s public oyster grounds has been on a rotational basis to help build up the stocks. Each of the Rappahannock’s areas 2, 4, 7, 8, and 9 has been open to oystering by hand-scrape for only two months this season. The hand-scrape is a 22-inch dredge that’s light enough to be hauled aboard by hand.

It’s a routine spot-check, and Walton knows the drill. He nudges the throttle extension back to neutral with his hip and pulls off his gloves, reaching over the top of his oilskins to his back pocket for his paperwork.

While Franklin inspects the licenses, the waterman and Johnson talk about shellfish prices, the season and, of course, the weather.

Johnson asks to see the marine sanitation device and safety equipment that’s required on board. All the while, both officers are scanning the oysters Walton has culled into the orange plastic bushel baskets. After 10 years of oyster patrol, Franklin said, “We can just look at the oysters and see whether they’re legal.”

They talk about whether poaching has been down since the new penalties went into effect.

“Maybe a little. But when you’re checking us, they go upriver,” Walton says. “They don’t give a damn about tomorrow, and they’re cutting our throats.”

Before the rotational areas were set, Walton said, it was different. “Now, it’s more personal. It’s like taking money out of my pocket, it’s just like stealing from me.”

Later, on a different boat that’s been working all morning near the edge of Area 7, Johnson finds more than a gallon of undersized oysters and “mud boxes,” shells full of mud, not oysters. It could be an oversight when culling.

Or not. Either way, it’s no good for the buyer because watermen are paid by the bushel, and the waterman gets a summons to appear in court.

The marine police escort his boat over to a marked oyster sanctuary nearby so he can dump his day’s catch on the reef. The loose oysters are protected, at least by law, from being scooped up by another oysterman. The waterman heads home because he’s not allowed to oyster for the rest of the day.

“He’ll probably go to court, pay the fine and court fee, and be back out here tomorrow,” Franklin said. “It’ll cost him about $150 and day’s worth of work. But it will be on his record, and we’ll be watching.”

Franklin and Johnson are part of the VMRC’s northern team, patrolling on the Rappahannock, the Great Wicomico, and northward along the Potomac up to the District of Columbia. (The VMRC shares monitoring responsibilities of the Potomac with the Potomac River Fisheries Commission law enforcement division.)

The VMRC has 67 officers for the tidal waters, and has had authorization to fill up to 10 more since 2005. The resources haven’t been allocated, Lauderman said, but the budget before the 2014 General Assembly includes funds to fill four of these positions.

It is said that the watermen themselves know exactly who’s breaking the rules — especially the more determined lawbreakers, who’ve been doing it for years.

“On any foggy day they’ll be where they’re not supposed to be,” said one waterman who preferred to stay anonymous. A fisherman could find his boat sunk if word gets out about who’s calling in tips.

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About Leslie Middleton

Leslie Middleton writes about water quality, public access, and the special places of the Chesapeake Bay region from her home in Charlottesville, Virginia.

Read more articles by Leslie Middleton

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