Waterman cleared of illegal clamming due to lack of notice
Posted: 6:46 pm Thu, March 7, 2013
Daily Record Legal Affairs Writer
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.
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.
The Office of the Maryland Attorney General declined to comment on the case. A representative from DNR said the department was still reviewing the decision.
Lowery’s attorney, Russell C. Dashiell Jr. of Widdowson & Dashiell P.A. in Salisbury, said Lowery could have lost his livelihood if the lower court’s decision was upheld.
“To those fellas, that’s their legacy,” Dashiell said. “They live on the water and have for generations and to take that away from them, you sort of take a piece of their soul. I just thought the state was wrong.”
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.”
In June 2011, Lowery was harvesting clams in Cook Point Cove in Dorchester County when DNR Police cited him for using a hydraulic clam dredge in a SAV zone.
Hydraulic clam dredging is a process that pushes seawater into the mouth of a dredge to loosen sand and collect clams.
When researching the case, Dashiell said, he could find no delineations for SAV zones on DNR’s website.
“The DNR has an extensive website that is byzantine,” Dashiell said. “It’s so multilayered. You have to go all over the place. …. We couldn’t find delineation.”
Lowery’s case first went before the Maryland District Court in Dorchester County, which found him guilty. He appealed to the Dorchester County Circuit Court, which also found him guilty and fined him $250.
Lowery petitioned the Court of Appeals to consider whether DNR complied with its notification requirement and whether DNR ever actually published delineation of SAV protection zones in the bay.
The court turned to the dictionary for interpretation of the two words most under dispute in the case — “delineations” and “revisions.”
Delineation is representing through a “sketch, design or diagram,” according to the dictionary.
“An accurate and precise graphic representation or a representation made by diagram would likely be a map or chart of the SAV zones,” the court wrote in its Feb. 28 opinion. “A representation made with accuracy and minute attention to detail could be a written description, but would have to be a description with specific detail or the precise coordinates of the SAV zones.”
The court interpreted “revision” to mean DNR Police should publish “new, amended, improved, up-to-date, or corrected delineations of an SAV zone.”
By contrast, DNR’s 2003 public notice, offered by the state as evidence, said only that new zones would be in effect as of a certain date and that one of the new zones was in Cook Point Cove, and provided contact information for DNR staff to get more information.
The Court of Appeals held that was insufficient to comply with DNR’s duties under the law.
The DNR told the court during oral arguments that it intends to post SAV zone delineations on its website.
Judge Robert N. McDonald wrote a dissenting opinion, joined by judges Glenn T. Harrell and Mary Ellen Barbera. McDonald contended the law only requires DNR to issue a “public notice” and not specific maps or charts.
“It is reasonable to conclude that [the General Assembly] was not mandating that the coordinates for every SAV zone in the State be printed in DNR’s public notice concerning the adoption or revision of SAV delineations,” McDonald wrote.
McDonald said even if the DNR’s notice was “technically deficient,” it should not absolve fishermen like Lowery from complying with shellfish laws.
“Transparency in government is a good thing,” McDonald wrote. “To that end, it is hoped that DNR will follow its counsel’s advice, promised at oral argument and noted in the Court’s opinion, that it post its SAV delineations on the agency’s website, where they will be readily available to all. But its failure to do so to date is not a basis on which to decide this case.”
WHAT THE COURT HELD
Edward Bruce Lowery Jr. v. State of Maryland, No. 26, September Term 2012, Argued Nov. 2, 2012. Decided Feb. 28, 2013. Majority opinion by Greene, J.; Dissenting opinion by McDonald, J.
Did the Maryland Department of Natural Resources fulfill its requirement under state law to inform the public of the delineations of submerged aquatic vegetation zones where certain shellfish fishing is banned?
No; reversed. DNR must publish more specific boundaries and maps of SAV zones and not simply a public notice listing locations and phone numbers to call for more information to fulfill its requirement under state law.
Russell C. Dashiell Jr. of Widdowson & Dashiell P.A. in Salisbury for appellant; Joseph L. Heckwolf, Office of the Attorney General, for appellee.
RecordFax 13-0228-21 (43 pages).