Fish get reprieve amid legal wrangling

State needs owners' OK to poison snakehead pond

August 08, 2002|By Rona Kobell | Rona Kobell,SUN STAFF

A snag in negotiations with the owner of the snakehead-infested Crofton pond has given the voracious fish from China a temporary reprieve from their pending execution.

Neither the MacQuilliam Organization, which owns the pond teeming with northern snakeheads, nor William Berkshire, who owns the two adjacent ponds, has consented to the Department of Natural Resources' plan to poison the pond with a herbicide followed by a fish-killing substance known as rotenone.

In letters to DNR Secretary J. Charles Fox this week, the companies said they wanted stronger liability protection to protect them from lawsuits in case any property is damaged or someone is injured during the fish eradication.

"They've already agreed in principle. They want it resolved efficiently, effectively, cheaply and quickly. They just want some reassurance that if there's any damage, the state will cover it," said John J. Klocko III, the attorney representing Berkshire.

Fox announced Tuesday that he would follow the recommendations of a state-convened scientific panel to use herbicides to kill the pond's thick vegetation. Then, state workers would add plant-based rotenone to rid the pond of the snakehead, a top-of-the-food-chain predator native to the Yangtze River that breathes air, can slither on its fins and can survive on land for up to three days.

DNR officials have caught more than 100 juvenile snakeheads, the product of a union between male and female adult fish that a local resident dumped in the pond two years ago when they outgrew their aquarium. The panel urged acting soon, fearing cloudbursts or anglers could carry the fish into the nearby Little Patuxent River.

But Fox "may have put the cart before the horse," Berkshire's attorney said yesterday. Klocko, who represents Crofton and southern Anne Arundel County on the County Council, said DNR's promise to indemnify the pond owners included "weak language." The secretary's initial letter dated Aug. 5 said the DNR accepted "full responsibility" and would indemnify the owners "to the extent of available appropriations."

Klocko said he wanted additional protection and assurances for any lingering environmental damage -- without cost limits. At 5 p.m. yesterday, he said he verbally agreed to new language that the DNR attorneys proposed, and expects his client will accept the conditions today.

The DNR appears to be further away from a resolution with MacQuilliam, which also owns the small shopping mall beside the pond.

In a letter sent to Fox on Tuesday, MacQuilliam Vice President Daniel MacQuilliam stated that the DNR did not have its consent to apply the poison.

"I hope you understand that we have, and want to continue to cooperate with the DNR, but we need to protect ourselves from any liability and financial burden," the letter said. "We have allowed the DNR to work on our property without any restrictions. We have tolerated the media frenzy and the circus surroundings without many demands and complaints."

Daniel MacQuilliam was not available for comment.

DNR spokeswoman Heather Lynch said that, while negotiations with Berkshire were proceeding, MacQuilliam's consent was "still in question."

Both property owners have cooperated with the DNR since the snakehead discovery, Lynch said. A representative of Berkshire even observed the panel discussion.

The owners' permission is the last step in the process. Scientists tested the rotenone, and the DNR has secured pesticide permits from the Maryland Department of the Environment and the U.S. Department of Agriculture.

The snag is especially frustrating for DNR officials because the herbicides work best in sunny, breezy conditions, like the ones the area has enjoyed over the past few days. After it receives permission, the DNR will need to give 24 hours' notice before it starts spraying the pond -- which Lynch said could be done through posted signs and media alerts.

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