Waterman Gets Off on Bad Clam Charge

Waterman cleared of illegal clamming due to lack of notice

There was nothing fishy about a waterman digging for clams in a protected zone of the Chesapeake Bay because the state natural resources department failed to publish the area’s specific boundaries, Maryland’s top court has held.

Some areas in the Chesapeake Bay are off-limits to clamming in order to protect the ecosystem, but a waterman argued that the Department of Natural Resources failed to communicate exactly where these areas were.

The Court of Appeals said that while the Department of Natural Resources published notice of the Chesapeake Bay’s protected zones in The Baltimore Sun and the Waterman’s Gazette, it failed to include a map, detailed chart or exact coordinates of off-limits fishing areas and therefore could not prosecute a fisherman found clamming in one of the zones.

The decision last week reversed a lower court that had found Edward Bruce Lowery Jr. guilty of digging clams in a protected area.

State fisheries laws ban clam harvesting in certain areas to protect aquatic vegetation and maintain the bay’s ecosystem. These are called “submerged aquatic vegetation,” or SAV, zones. State law requires DNR to “publish by public notice, delineations of SAV protection zones and revisions to SAV protection zones.”

Lowery claimed the protected boundaries were not properly advertised with specific maps of banned areas, but the state contended it had published a notice of the zones in two publications and was not required by law to provide more specific charts and latitudes.

A judge decided differently, however.  It sounds reasonable to me that the DNR should be required to provide exact descriptions and co-ordinates of the exclusion zone, and put up easily visible markers to show the banned areas.  I know we have such markers nearby here to mark the CCNPP and Gas Dock exclusion zones.  Their positions are also posted in the "Notice to Mariners."

While the dollar amount of the fine wasn’t much, Lowery already had violation points on his commercial fishing license; had he been guilty of this violation, he could have been stripped of his license, Dashiell said. “That is essentially his life,” Dashiell said. “That was the motivation behind how arduous the fight was and why we saw fit to take it as far as we did. We didn’t have much choice.”

This is a constant problem with the enforcement of laws against commercial fishermen.  The fines for violating the laws aren't particularly high, and local judges are reluctant to apply them.  They are, after all, being inflicted on men who are trying to make a living in a rather dirty, unpleasant work place.  The offense is not against anyone in particular, but rather a violation against the state.  The judge sees real violent criminals, thieves, junkies and other unpleasant people daily.  It's easy to understand how that can lead them to see the watermen as relatively benign.

There are the equivalent of "three strikes" laws for commercial violators, and enough serious charges, and DNR can pull their license, and refuse to license them again in the future.  That kind of "career death sentence" really does generate fear.