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Watermen ponder suit over crabbing plans

The Baltimore Sun

Chesapeake Bay watermen are considering legal action over proposals in Maryland and Virginia to reduce the crab harvest, arguing that the states shouldn't punish crabbers for government's failure to clean up the bay.

Lawyers for the watermen say it is too early to tell how and when they might proceed with litigation. But even the talk of lawsuits is unusual for watermen in the two states, who have mostly preferred to work through their legislatures to ease the hurt of previous regulations.

Maryland watermen have hired William "Sandy" McAllister Jr., a prominent Eastern Shore attorney with the firm Miles & Stockbridge, to advise them on how to proceed in the face of the coming restrictions. Virginia watermen are being advised by Lee Anne Washington, a waterman's daughter who practices law on Virginia's Northern Neck - home to many of the state's crabbers.

State officials say they must take steps to significantly reduce the number of crabs - especially female crabs - taken from the bay because the population has plummeted. But McAllister said watermen were not given nearly enough notice of the rules scheduled to take effect next month. Many weren't expecting such restrictions when they ordered their equipment, refurbished their boats and signed contracts with seasonal workers to pick crabs - endeavors that can cost hundreds of thousands of dollars.

"It's just incredible that such an important component of the Eastern Shore's economy, and the bay's economy, would be subjected to this dramatic regulation without the time necessary to evaluate the impact," McAllister said. "They're regulating the heritage of the Chesapeake Bay out of existence."

While legal action by watermen would be unusual for this region, seeking remedies in the court is not unprecedented. Watermen from Maryland's Smith Island sued three decades ago for the right to oyster outside their home Somerset County and the right to fish and crab in Virginia.

North Carolina fishermen sued the federal government in 1997 over flounder limits and again in 2006 over restrictions on fishing grouper and snapper. This year, Ohio fishermen sued their state over new restrictions on commercial fishing in the Great Lakes.

McAllister's firm has been retained by the Maryland Watermen's Association and several county watermen's groups. He represented a Cambridge developer who was forced to scale back plans for a huge resort and residential community near the Blackwater National Wildlife Refuge. He is currently working with a Delaware company that wants to build a sand and gravel operation on Marshyhope Creek.

Maryland Department of Natural Resources officials released their proposed crab rules this week. They include closing the season for females seven weeks early and imposing a system of bushel limits.

Though the restrictions were not as severe as some crabbers had feared, watermen said they will still disproportionately hurt Lower Eastern Shore crabbers and picking houses.

Virginia watermen are exploring legal action over the failure of the state and federal governments to clean up the bay, Washington said. Scientists have long known that habitat plays a role in the abundance of crabs, and pollution from sewage and farm runoff has helped to kill the grasses where crabs live.

"They're interested in getting to the root of the problem, not just stopping the regulations," she said. "The watermen are not a source of pollution for the bay. They do harvest seafood, but they've been harvesting seafood for hundreds of years. What has changed is the amount of pollution making its way into the bay."

Virginia approved new rules yesterday. Among other changes, the state will close its century-old winter dredge fishery, in which hibernating, pregnant females were raked from the bottom. The state also ordered a 30 percent reduction in peeler pots and a 15 percent reduction in hard pots.

Virginia Watermen's Association Vice President Ken Smith said he would like to see the restrictions rolled back, but that is a separate issue from water quality. He said several environmental groups have talked about joining the Virginia watermen if they pursue legal action.

"The degradation of the bay has cost a lot of us our livelihoods," Smith said. "That's where we think we have a true issue, where we could pursue it legally."

Fishermen in California have for two decades been fighting the federal government over the loss of water from the Sacramento and San Joaquin rivers, which has devastated salmon populations. The government has taken the water for irrigation.

Zeke Grader, executive director of the Pacific Coast Federation of Fishermen's Associations, said he has talked to Maryland watermen about their plight. He said litigation is expensive and frustrating, but often necessary. "Sometimes these things will take decades," he said, "but you've got to do it, because that's the only way to get relief."

Carl Tobias, a constitutional law professor at the University of Richmond, said that a Virginia lawsuit over habitat or a Maryland one over economic hardship would be difficult to win. On the habitat side, Tobias said, the lawyers would have to figure out whether to sue in federal or state court and how to prove responsibility for failing to clean up the bay.

Though Tobias questions why the states couldn't have decided on restrictions well before the season started, he's not sure there's any legal justification for compensation.

"Ethically and morally, you owe them something, but I don't know that you do as a matter of law," Tobias said. "Crabs are a public resource. As much as I'd like to see the watermen treated fairly, I don't know you can make that argument."

Patrick Lynch of The Daily Press in Newport News, Va., contributed to this article.

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