Oyster poaching continues on bay despite enforcement efforts

Maryland is building the bay's most ambitious oyster comeback. Can it survive?

Waterman Edward "Bruce" Lowery lost his Maryland license to harvest oysters five years ago, after racking up more than three dozen violations. He was convicted of fishing at the wrong times, in the wrong places and using the wrong equipment.

But that hasn't stopped him from oystering in the Chesapeake Bay.

Lowery, 49, says he bought a piece of land in Virginia — a "$3,000 piece of nothing" where he has never lived — to secure a commercial license from that state. Virginia regulators didn't ask about his record in Maryland.

As the five-month oyster season winds down, Lowery says his catch has been excellent. On a good day, he and his crew managed two dozen bushels and sold them for more than $1,000. He says he enjoyed many good days, despite having to travel to Virginia to work its waters.

Lowery's move illustrates the problem Maryland authorities face as they try to crack down on poachers — whom they see as a major threat to the bay's oysters.

In recent years, Maryland has used a wide range of measures to rebuild the oyster population, which sits at 1 percent of historic levels. State officials initiated the largest oyster restoration project on the East Coast, investing millions of dollars in sanctuaries that are off-limits to watermen. They launched an expansive radar system, funded largely by the U.S. Department of Homeland Security, with cameras to spot suspected poachers. And they rewrote rules to enable the state to suspend and revoke licenses more easily.

There are signs that the enforcement efforts have worked. Even as the number of license holders nearly doubled over the past five years, the number of citations dropped by more than 40 percent. And the state is suspending and revoking oyster licenses more often — 13 actions took place from 2005 to 2010, and there have been 70 since then.

Lowery, who left high school to become a full-time waterman, says he made an effort to find different work after losing his Maryland oyster license in 2010. "I had tried carpentry for a year. After being self-employed for 38 years, that didn't work well."

The oyster license of his friend Richard N. Fluharty, 29, was revoked in 2011, and he has joined Lowery in oystering in Virginia. Neither likes living in motels and racking up miles on vehicles, and they said the situation has broken up their relationships with longtime girlfriends. But they persist because they see no other option.

Other watermen are also finding ways to skirt the system. State records show that at least five Maryland watermen with licenses suspended or revoked since 2005 have continued to receive citations for oyster poaching even as they face the threat of jail.

Despite efforts to boost penalties — after a panel of experts warned in 2009 that state judges were not taking infractions seriously — fines have increased only slightly.

Researchers from the University of Maryland and the Johns Hopkins University calculated the average fine given to violators from 2000 to 2009 at $179, or less than the price of four bushels of oysters. A Baltimore Sun analysis of fines from 2010 to 2014 found that the average had increased only slightly, to $197.

Though watermen have enjoyed record oyster harvests in recent years, some are pushing back against state policy, saying they are being denied access to a public resource.

Patrick Murphy, a commercial waterman based on Tilghman Island, and others say that as larger sections of the bay are dedicated to oyster sanctuaries and license revocations increase, many watermen have no other choice but to poach.

"Obviously, if people break the law, there are consequences," said Murphy, who has been convicted of a number of fishery violations, including harvesting undersized oysters. But state officials "kind of put people in position where they have to sometimes."

Although Maryland's system is now a model for those trying to restore oysters in European and Asian countries, frustrated commercial watermen are lobbying to weaken the penalties and open sanctuaries. They see a potential ally with the new administration of Gov. Larry Hogan.

"It's kind of like 'glasnost' in the [Soviet Union's] Gorbachev administration," said Jim Mullin, executive director of the Maryland Oystermen Association. "We could use some fresh ideas and people who could work with us and not just say no."

Crossing the line

Much of Maryland's push to enforce oystering rules falls to the Natural Resources Police and officers such as Ron Cheezum. On a recent day, he pulled his 25-foot SeaArk patrol boat out of Knapps Narrows Creek near Tilghman Island and headed north.

Cheezum and his colleagues say nearby Harris Creek is a "hot spot" for poaching. State officials closed the area to oystering in 2010 in an effort to rebuild the bivalve population.

As Cheezum glided across the brackish waters, he opened a laptop to show an interactive map of the bay, with red swaths representing oyster sanctuaries and dots representing boats.

The state began expanding the sanctuaries with the aim of creating self-sustaining oyster reefs. The theory is that untouched reefs will improve disease resistance and fertilize other public areas that watermen may harvest.

Harris Creek, at a cost so far of $30 million, is the crown jewel of the project.

Cheezum touched the computer screen to zoom in on the sanctuary. If a boat crosses a red line, the system sends an alert to officers, who may then respond in person. Poachers can also be identified by cameras stationed around the bay.

The radar and camera system also watches for potential security threats on the bay, which is how the state secured Homeland Security funding. The system has attracted officials from as far away as Turkmenistan looking to secure their natural resources.

But some resourceful watermen have found ways around it. Cheezum says officers have caught poachers walking around the sanctuaries and pulling oysters by hand — activity the system can't detect. He's also caught watermen "in broad daylight in the middle of a sanctuary, anchored and oystering illegally."

Cheezum said most of the poachers he catches are repeat offenders.

Cheezum left the area briefly to patrol neighboring Broad Creek, a public oyster bar where David Phillips, 51, dredged for oysters from the Annie Buck.

As officers boarded his boat, Phillips said he had been stopped five times this season by Natural Resources Police and received one citation for undersized oysters. Since 2000, he's had eight oyster violations — mostly for undersized oysters.

The officers used a metal ruler to measure oysters. They found everything in order and left the Annie Buck after about five minutes.

In a phone interview later, Phillips said of the officers, "There's more of a presence. They're doing their job." While he wasn't complimentary of the enforcement push, he said the officers were helping protect the resource from people doing "stupid stuff."

After officers completed the inspection, Phillips got on the radio to alert watermen about the Natural Resources Police in the area.

Cheezum said watermen have an elaborate system to notify one another of the officers' presence. At the same time, he said he's been getting more tips from watermen — he considers them his top informants.

"They used to be tight-lipped, but watermen who are making a living legitimately are starting to get fed up," he said.

Mullin agreed. He said the Maryland Oystermen Association has been working the past two years to tell Natural Resources Police about the bad apples in the business. "Like any industry, there are repeat offenders. They give the rest of us bad reputations."

On Cheezum's patrol along Harris Creek, the only craft to show up on his screen was a barge carrying mountains of white shell. It was making its way from Baltimore to dump the next batch of oyster shell into the creek as part of the restoration project.

According to the Department of Natural Resources, Harris Creek alone boasts enough oyster shell to cover every NFL field in the United States eight times over.

The oyster debate

The man who helped pick that shell is Mike Naylor. If oysters are the ultimate aphrodisiac, Naylor is the Dr. Ruth of the Chesapeake Bay. As director of the shellfish division at the state Department of Natural Resources, his mission is to boost the number of bay oysters from 1 percent of historic levels to 8 percent.

The oyster population plummeted by two-thirds by 1930, and then was flattened by the diseases MSX and Dermo beginning in the 1950s to the low levels that continue today.

In a drab DNR conference room in Annapolis, Naylor pulled up a computerized map that showed blue dots swirling around the bay.

The more larvae, the more shells, the more oysters, Naylor explained. That's the premise of the large restoration project and sanctuaries: strength in numbers. The more disease-resistant oysters untouched in the sanctuaries, the more oysters will produce in public grounds where watermen may harvest.

Despite the significant expansion of sanctuaries, Naylor's data show that bushels harvested shot up by 318 percent between 2009 and 2014, and dockside value increased by 436 percent. Meanwhile, the state has seen an influx of more than 500 watermen with new oyster licenses.

Naylor said the state program is working, but he also credits a good "spat" set — meaning viable baby oysters — and favorable weather conditions.

This is not what oystermen thought would happen in 2009. Mullin told The Sun at the time that the restoration plan would "take a culture and heritage and push it under the rug."

Why the statistics tell a different story today is a matter of contention.

Mullin and others take issue with Naylor's assessment — and they're leading a debate that's taking place amid the enforcement push. They attribute the changes to weather conditions, the good spat set and to oyster dredging — not to bigger sanctuaries or enforcement.

Mullin said dredging — using metal scrapers to pick oysters from the bottom — unearths the shellfish from dirt and silt, cleans them and allows them to grow.

Oyster dredging by mechanical propulsion was banned for nearly a century beginning in 1867, amid concerns of overharvesting. It was allowed on a limited basis in the 1960s and expanded in 1999.

It took a while for the oyster population to increase, because only in recent years did watermen put extra effort into dredging, said Mullin. The effects of dredging "take time," said Robert T. Brown, head of the Maryland Watermen's Association.

Naylor said he has yet to see any scientific evidence that dredging either helps or hurts the oyster population. A comprehensive state report on the sanctuaries is due in July 2016, but Naylor said interim data show the restoration is "on track."

With oysters selling near a record $50 a bushel, watermen are pushing the state to open sanctuaries to oystering and lobbying for poaching penalties to be relaxed.

"We don't even have the death penalty ... in Maryland," Brown said. "But if you take away a license for life, isn't that a death penalty?"

One bill pending in the General Assembly would ease the penalty for first-time violators harvesting with the wrong gear — giving judges the option to suspend a license instead of automatically revoking it.

The Department of Natural Resources recently said it would not oppose the bill, noting that revocations would still be allowed.

Brown said that while he's pleased with the governor's pick for natural resources secretary — Mark Belton, who was recently sworn in — he's hopeful for more changes at the agency.

Hogan spokesman Matthew Clark has said the governor is asking each state agency to review its operations.

Del. Jay Jacobs, a Kent County Republican who heads the legislature's "watermen's caucus," hopes some oyster reefs will be opened.

William Richkus, an oceanographer who began researching oyster restoration in 2004 at the behest of the Ehrlich administration and then later for the O'Malley administration, said rolling back plans after just five years would waste taxpayers' investment.

"It took decades to destroy. Why would we give it only five years to rebuild? It's only a blink in time," he said.

Meanwhile, John M.R. Bull, Virginia's marine resources commissioner, said he's looking into the licenses of Lowery and Fluharty. The state only allows Virginia residents to oyster in its waters, he said.

"If anyone from Maryland has obtained a Virginia oyster license under false pretenses and they're not a Virginia resident, this matter will be addressed by the Virginia Marine Police," he said.

Dr. Jim Wesson of the Virginia Marine Resources Commission said officials there might have to start checking whether watermen who have been banned from Maryland waters are getting licenses in Virginia.

Poaching has been on the rise in Virginia, Bull said, and the state has stepped up enforcement. Last year, Virginia revoked 16 licenses — more than had been revoked over the previous 20 years combined.

But penalties are not as severe as in Maryland. The revocations are only for two years — not for life as in Maryland. (Virginia will soon extend its term to up to five years.) And revocations can be suspended. This year, Virginia has revoked 11 licenses, but nine of the watermen were put on probation and allowed to keep their licenses barring further violations.

"The good news is, there are a lot more oysters in Virginia waters than there have been for many decades," Bull said. "The bad news is, there are more opportunities for oyster theft."

crentz@baltsun.com

twheeler@baltsun.com

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