Challenge to aquaculture business rejected

October 31, 2006|By Rona Kobell | Rona Kobell,Sun reporter

An Eastern Shore judge has rejected a property owner's claim that the state should not have leased land on the bottom of Chincoteague Bay to a fledgling aquaculture business that has been raising clams in the bed.

David and Jena Harvey, Pennsylvania residents who own property in Girdletree, had argued that the Maryland Department of Natural Resources had no right to let Steve and Christy Gordon use the public bottom to grow clams.

Worcester County Circuit Judge Theodore R. Eschenburg Sr. threw out the claim, though he agreed with the Harveys' contention that the state surveyed the property incorrectly and that the Gordons would have to give up the bed - at least until DNR can resurvey it.

DNR officials said they believe Gordon can keep the clams on the bed for 90 days while a survey is done. They declined to comment further.

"I'm going with the premise that we've lost the battle, but the war's not over," Gordon said.

The ruling overall appears to be a partial victory for the state's efforts to encourage aquaculture. State officials want to increase clam farming in places such as the Maryland Coastal Bays, which have the necessary high salinity and sandy soil. The state hopes that getting more shellfish in the waterways will help filter out pollution and shore up a struggling seafood industry.

Historically, Maryland has maintained a wild fishery and hasn't leased much bottom to private owners. But last year, the General Assembly created the Maryland Aquaculture Coordinating Council to try to make it easier for aquaculture businesses to thrive. State officials would like to emulate what's been done in Virginia, where clam aquaculture generates more than $30 million a year.

The Gordons, of Public Landing, are the largest leaseholders in the coastal bays, with 200 acres under their control on five leases. DNR officials and University of Maryland scientists have supported their efforts to grow clams in Chincoteague Bay.

But some property owners are fighting the state's decision to lease public bottom, claiming that the lease poles will obstruct their views and limit their access to their shorelines.

Don Webster, a University of Maryland aquaculture expert and chairman of the aquaculture council, said he's glad the DNR won on the big issues. But he said losing the Gordon lease, even temporarily, is a disappointment.

The Harveys argued that the DNR did not properly survey the property to determine how close it was to a natural clam bar, defined as an area where an experienced clammer can harvest up to 500 clams an hour. State law forbids leasing bottom within 150 feet of a natural clam bar.

The DNR did a hand survey of the property and declared it was not a natural clam bar.

Eschenburg questioned how the state could determine that using only a hand rake.

"The results of such a test were predestined to fail before the test was even performed," the judge wrote. "Thus, such actions were simply a futile and comical gesture to allegedly satisfy a statutory prerequisite."

DNR officials say they used the rake because that's used in areas that can't be dredged.

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