On a cold January day, Maryland Natural Resources Police said they saw a man dumping items in the water by his St. Mary’s County home. Divers searching that stretch of Smith Creek off the Potomac River then recovered oysters, oyster shell and mesh bags of the type used in shellfish aquaculture operations, according to police.
As a result, Joseph Franklin Sullivan, 20, of St. Inigoes, has been charged with four felony counts of theft and one of destroying property in what authorities say is the first criminal case brought in Maryland for stealing from water leased to a private oyster farm.
Sullivan, who had previously worked on some oyster farms in the area, is accused of taking thousands of dollars’ worth of shellfish from a lease in nearby Calvert Bay that since 2012 has been farmed by J.D. Blackwell of 38° North Oysters.
The Natural Resources Police superintendent, Col. Robert K. “Ken” Ziegler Jr., said he had been preparing the department for such a case since last year, when he became acting superintendent. The felony charge is meant to be a warning shot of sorts, according to the 40-year law enforcement veteran, who has since been formally appointed to head the NRP. He said he sees these leases as storefronts, and those who take from them are no different than common burglars.
“I just want to get the message out to those who would be inclined to do so, that if we catch you stealing from aquaculture, we’re not going to just write you a ticket,” Ziegler said. “You are going away in handcuffs.”
Calls to the public defender listed in court documents as Sullivan’s lawyer were not returned. Sullivan could not be reached for comment. Sullivan was served at the St. Mary’s County Detention Center, where he was being held on theft, drug and escape charges.
If convicted on all counts for the aquaculture thefts, he faces a maximum sentence of 25 years in prison and a fine of $27,000. The case is scheduled to be tried in May in St. Mary’s County District Court; a preliminary hearing was to take place in late March.
Oyster poaching has long been an issue in Maryland and Virginia. But until recently, the victim was usually the public. The oysters taken often came from waters the states managed for their ecological and economic value.
Now, as aquaculture has rebounded, Virginia has more than 100,000 acres under lease and boasts of a $58 million aquaculture industry; Maryland has 4,000 acres under lease and is approving new applications on a regular basis. These farmers grow the oysters either loose or in cages on the bottom, or in tethered floats just beneath the water’s surface.
Maryland has a points and penalties system for poaching oysters, and has suspended some licenses for repeat offenders. But it hasn’t yet had an administrative case of theft from an aquaculture lease, said Sarah Widman, director of policy and planning for the Maryland Department of Natural Resources.
Despite its large acreage under lease, Virginia officials could only recall one case of theft from an oyster lease. Most of the cases there stem from leaseholders illegally taking oysters from public grounds, said James Wesson, head of conservation and replenishment for the Virginia Marine Resources Commission. If marine police in Virginia caught thieves stealing from an oyster lease, Wesson said, the penalties would be the same as for other types of poaching.
“It is not that the poaching on leases is not occurring,” Wesson said. “We know it is occurring, but the lease holder has to get involved in the case, and usually they do not want to do that.”
Oyster farmers have long complained about poaching. They’ll note a cut-open bag, or an askew cage, or a small piece of missing equipment. But Sullivan is accused of taking eight cages worth of oysters from Blackwell and several more from Blackwell’s partner, Paul Kellum. Cages typically contain 1,000 oysters, which sell for about 60 cents each.
Back in the oyster farming heyday, farmers erected watch houses to stand sentry over their crops. Virginia had hundreds of them on spits of land from the Rappahannock River to the barrier islands. On the Maryland side, Harold Kennerly, owner of Nanticoke Seafood, owned nearly all of the leases in the Nanticoke and stationed a boat in the middle of them to keep watch.
Today, oyster farmers rely mostly on the Natural Resources Police and local law enforcement. But the NRP has just 262 officers, its chief said, and its workload keeps increasing. A more ideal force strength, Ziegler said, would be 325–350 officers. Enforcement is challenging, he explained. In addition to policing the waterways for poachers, officers are also rescuing stranded boaters and struggling swimmers. The department has acquired some high-tech equipment to augment the reduced staff, including a surveillance system, the Maritime Law Enforcement Information Network, or MLEIN. But remote cameras can’t keep an eye on all aquaculture operations, which are often in small tributaries and close to shore.
Another issue, said aquaculture specialist Donald Webster, is that people caught in leased waters often claim they didn’t know the oysters there were part of a farm and not wild. Most leases are marked with small PVC pipes sticking out of the water, which may get displaced — or removed. But such claims of ignorance aren’t credible when the oysters are in cages and bags.
Even when poaching charges are leveled, judges and prosecutors have not always taken public-fishery offenses seriously; in recent years, though, some counties have created “oyster dockets” to put more emphasis on the seriousness of those cases.
Also hampering enforcement is the return of the dredge, an efficient mechanism for taking many oysters quickly. When power dredging was not widely permitted, a dredge on board was a sign that the operator could be doing something illegal. But the practice has been allowed to expand since 2003. Now, Webster said, a dredge on a boat reveals nothing about whether activity is legal or not.
Thieves are going to leases like Blackwell’s for the same reason bank robbers hit up savings and loans — that’s where the money is. As Maryland was building up its industry, Webster said, he and others expected a case like Blackwell’s would come.
The high value of such thefts prompted Del. Anthony J. O’Donnell to introduce legislation last year that would allow oyster farmers to recoup up to triple the investment they lost after a theft. It passed. O’Donnell, who represents Calvert and St. Mary’s counties, has introduced a fix to the law this year that would allow business partners, joint operators and others involved in running the business to seek compensation as well.
The Sullivan case helped bolster the lawmaker’s belief that such a fix was needed, given the joint-ownership operations there and at so many other farms.
“This was the most dramatic instance that we’ve seen,” O’Donnell said. “The investigation is giving us an insight into who these actors are that do it, and it’s not pretty.”
Ziegler said his officers used old-fashioned police work to make the case against Sullivan. Even before Blackwell offered a $1,000 reward, police say they were receiving tips. Acting on information coming in, Ziegler said, officers observed Sullivan dumping items offshore of his property. Divers found some equipment there that they identified as Blackwell’s.
One of the most frightening aspects of the threats from poaching is what happens to the oysters. Those who eat oysters that aren’t sold by a licensed supplier could be harming themselves. The Food and Drug Administration and the state Department of Health and Mental Hygiene require dealers to follow strict protocol for handling, refrigerating, selling and shipping oysters. Not following those rules could lead to consumers eating shellfish containing pathogens, which can cause serious stomach ailments and even death.
Just because that hasn’t happened yet doesn’t mean it won’t, Blackwell warned. He urged the public to ask questions, especially if they are buying seafood from a pickup truck or a roadside stand. After all, he said, the thieves wouldn’t take oysters if they had no market for them.