The legal cloud over oyster restoration work on Maryland’s Lower Eastern Shore may be dissipating. The state’s second-highest court has overruled a Somerset County judge who for three months had blocked the state from building new reefs in the Manokin River.
Seeding of the river with hatchery-reared oysters began last year, but the start of reef construction has been held up since fall. On Nov. 9, Somerset Circuit Court Judge Mickey J. Norman issued a temporary restraining order barring the state Department of Natural Resources from proceeding with the work. He renewed the order on Jan. 5 pending a March 18 hearing on a lawsuit brought by Somerset County challenging the state’s authority over the river.
The attorney general’s office, representing DNR, appealed the judge’s decisions to the Court of Special Appeals. On Feb. 15, a three-judge panel issued a short order overruling the lower court judge and granted a stay of the restraining order. It declared that the judge’s action violated state rules limiting the duration of such supposedly temporary injunctions.
Chris Judy, director of DNR’s shellfish division, had said in an affidavit that the open-ended restraining order from the Somerset judge “substantially jeopardizes” the state’s ability to meet its 2025 deadline for completing large-scale oyster restoration projects on five Bay tributaries.
The DNR plans to rebuild reefs and plant hatchery-spawned oysters across 421 acres of river bottom in the Manokin, a $30 million project that’s the largest such restoration Baywide.
The Manokin is the last of five Maryland tributaries targeted for large-scale oyster restoration under the 2014 Chesapeake Bay Watershed Agreement, which commits Maryland and Virginia to restore oysters in 10 tributaries by 2025, five in each state. Initial work is complete in six of those tributaries.
The Somerset Board of commissioners filed the suit on Oct. 28 at the behest of local watermen opposed to the planned restoration in the Manokin. In their complaint, county officials argued that the state’s plans to use the stone to build reefs would make it “impracticable, bordering on impossible” to harvest oysters in the river and would likewise disrupt crabbing and other fishing.
Lawyers for the DNR countered that the restoration won’t affect wild oyster harvesting because it hasn’t been allowed in the Manokin since 2010 when the state designated it a sanctuary. They said the county’s claims that crabbing and fishing would be hurt are “speculative” and don’t justify halting the project.
A key element in the county’s lawsuit is its claim that it, rather than the state, has jurisdiction over the river, so it should get to decide what happens there.
The DNR’s lawyers responded that by law the state owns “submerged lands” and has regulatory authority over the waters above those river bottoms.
The law and previous court rulings would seem to support the state’s case, according to Sarah Everhart, a senior research associate and legal specialist with the University of Maryland School of Law. A county can regulate some activities in waters within its boundaries, such as docks, piers, and wharves, she said. But the county can’t assert control over activities in the waters that the state is already regulating.
“I think it’s going to be an uphill battle to try to claim that a county’s jurisdiction would trump a state’s jurisdiction when the state has exercised that authority,” she said.
The judge’s orders skirted that question, but he decided that the risk of permanent, irreversible harm to fisheries from the state project was too great, so he blocked the reef work until he could hear arguments from both sides.
DNR officials have said they are forced to build reefs from stones because there is enough old oyster shells to meet all the needs. Stones would be deposited on 157 acres of river bottom, or a little more than one-third of the project. In response to the watermen’s complaints, DNR Secretary Jeannie Haddaway-Riccio has said the stones would be smaller than those used in any previous restoration project.
A DNR spokesman said the department is reviewing the appellate decision with the attorney general’s office and “determining next steps.”
The Manokin restoration project covers a 25-square-mile swath of the river, all of it off-limits to commercial oyster harvesting since 2010. Watermen contend the river’s sanctuary status has deprived them of access to once-productive oyster reefs, and they contend the state once promised to return the river to the fishery after a few years.
More than 74 million hatchery-spawned juvenile oysters, known as “spat,” were planted in the Manokin last spring on lightly populated existing reefs, according to DNR. The state issued a $32 million contract in July to build reefs over the next five years in the Manokin and in the St. Mary’s River across the Bay in southern Maryland. Reef work in the St. Mary’s was completed last fall.
This article was originally published on BayJournal.com.