The Longest War
Fishermen and Farmers and the Argument over Oysters
Watermen who harvest the state's public oyster grounds with dredges and tongs (above left) and diving suits have long opposed the expansion of private oyster farming in state waters. Max Chambers (above right) was an oyster farmer who built a small hatchery in the 1980s where he spawned oysters, collected larvae, and planted his own spat-on-shell on private leases along the Nanticoke River, one of the few rivers in Maryland where oyster farming flourished during the last half of the 20th century. Photographs, Michael W. Fincham (left) and Merrill Leffler (right)
IN 1882 MARYLAND'S GOVERNOR, WILLIAM T. HAMILTON, was worried about a drop in the annual harvest of oysters that Maryland watermen were dredging and tonging off the bottom of the Chesapeake Bay. His response was to appoint an Oyster Commission to study the industry and make recommendations about how to save it. Commercial harvests had slumped to only 10 million bushels in 1880. That's a bonanza by today's standards, but at the time it was considered a great disappointment.
To lead the commission, the governor and the General Assembly turned to W.K. Brooks, a world-famous oyster biologist from the Johns Hopkins University. He spent two years investigating the state of the industry and finally recommended a two-pronged solution: the state should reduce fishing pressure and increase private oyster farming. His report was considered a great disappointment by most state officials. They decided not to encourage oyster farming.
In 2007, another governor felt the need to revive the oyster industry, and Martin O'Malley tried what other governors before him had tried: he appointed an official Oyster Advisory Commission. Annual commercial harvests by then were no longer anywhere near 10 million bushels. During the first decade of the 21st century, harvests were averaging about one tenth of one million bushels a year, a drop of three orders of magnitude. Governors kept trying this same tactic — asking for a study, a final report, some useful advice — because they kept facing the same problem: the state's once-great oyster fishery was undergoing ongoing decline.
To chair his commission O'Malley turned to Bill Eichbaum, a former state official and a veteran of various environmental wars, and when the commission finished its work, its final report recommended that the state should reduce fishing pressure and increase oyster farming. That sounded a lot like the long-ago Brooks report, but this time the governor and General Assembly decided to take action. In 2009 they passed legislation that mandated historic changes in the oyster industry. It removed long-standing restrictions on private oyster farming, it opened up new areas of Bay bottom for leasing, it increased the size and number of oyster sanctuaries, and it reduced the public oyster grounds previously reserved for commercial fishing.
After 125 years of debate and delay, the state of Maryland was finally going to encourage and fund an expansion of private oyster farming — and it was going to do it on a scale not yet seen in Maryland history.
The legislation was an uncommon event in environmental policymaking. "Science-based policy making is about incremental change," says Ann Swanson, executive director of the Chesapeake Bay Commission. "It is only [rarely] that you do something massive." The new legislation certainly sounded like something massive to many traditional oyster fishermen. Robert T. Brown, the president of the Maryland Watermen's Association, was blunt in his assessment. This decision was, he said, "the worst disaster in Maryland history."
Choosing a Chairman
Why did the Eichbaum commission result in new, sweeping legislation when so many earlier efforts had failed?
Perhaps because the O'Malley administration didn't choose a chairperson who was an expert in oyster biology. State officials looked instead for someone who was smart about Chesapeake Bay issues and savvy about Maryland politics. In Bill Eichbaum they got a man who was a vice president with the World Wildlife Fund but in his earlier career he had handled a number of hot-button issues for the federal government and for two Maryland governors.
His Oyster Advisory Commission would be taking on the longest-running hot-button issue in Maryland politics. According to historian Christine Keiner, author of The Oyster Question, no other topic has generated as many laws in the history of this state as this bivalve that sits on the bottom of the Bay waiting to be harvested by fishermen or farmers. And the net result of all those laws? By the beginning of this century, populations of oysters were down to one percent of their historical abundance.
In his earlier careers, Eichbaum had earned a reputation for taking strong stands on tough issues like this — and taking the heat that followed. At the U.S. Department of the Interior, he pushed for strict regulations on strip mining — and lost his job. In Maryland one governor, Harry Hughes, put him in charge of running the state's environmental programs, and in that role he served as one of the chief architects who helped design the state's Chesapeake Bay restoration program and push it through the legislature. But when the next governor, William Donald Schaefer, reorganized the state's environmental programs, he eliminated Eichbaum's position.
These ups and downs, Eichbaum says, taught him some lessons about policymaking and politics. During his stint at the Department of the Interior, for example, his aggressive approach to regulating strip mining got the attention of the mining companies. According to The New York Times, they named him "Dr. H-Bomb," put him on their "hit list," and lobbied successfully for his removal. Looking back Eichbaum acknowledges some miscalculations: he had pushed harder on strip mining than the Secretary of the Interior was willing to push — at least at that moment in time. "I got out ahead of my blockers," says Eichbaum, "and I got creamed."
In 1882, W. K. Brooks, the famous oyster biologist from Johns Hopkins University, was chosen to chair a Maryland Oyster Commission. His report called for creating more opportunities for oyster farming, but his recommendation was largely ignored by the Maryland General Assembly. Painting, courtesy of Johns Hopkins University
W.K. Brooks, the famous oyster scientist, had the same experience when he led Maryland's first and most famous oyster commission. Back in the 1880s he tried to insert oyster science into oyster politics — and he got clobbered. When he analyzed the problems and potential of Maryland's 19th century oyster industry Brooks decided that most of the industry's problems stemmed from overfishing of the natural bars and most of its potential lay in the expansion of oyster farming. The state had passed a "One-Acre Law" in 1820 and a "Five-Acre Law" in 1865, but Brooks found those limits economically crippling. Corporations and individuals should be able to lease more acreage, enabling them to create large private oyster farms in the deeper waters and smaller plots along the shoreline. He called for allowing larger private leases — but only on areas of Bay bottom that were not part of the traditional oyster fishing grounds. His recommendations would, however, launch a debate that would still be raging 125 years later.
Brooks based his argument for farming on his own science. He was famous because he had achieved a revolutionary discovery about oyster reproduction: females release millions of eggs into the water column where they are fertilized by sperm from nearby males. His finding would prove the foundation for oyster aquaculture in this country. Oysters could be spawned in hatcheries, their fertilized larvae could be collected, seed oysters could be created — and those seed oysters could be planted along the bottom of coves, the mainstem Bay and rivers. Science-based farming in the Chesapeake, he said, could unleash an oyster bounty far beyond the best harvests yet recorded.
How far beyond? Here, perhaps, his argument outran his science. He once estimated that Maryland's oyster harvest might reach 500 million bushels a year — an astounding forecast. The tax revenues from that harvest, he predicted, could pay most of the cost of state government — another astounding forecast.
With his bold claims Brooks kicked off a debate he didn't know how to win. He was a scientist trying to play policymaker, and he was soon running way ahead of his blockers. As head of a three-man commission, he even lost the backing of one of his commissioners, who filed a dissenting report. He also got no support from the governor, from most members of the General Assembly, or from any of the 13,000 thousand watermen who were fishing oysters off the public grounds.
Those watermen had political power that reached far beyond their population numbers. Each county in the state had one senator in the General Assembly, and in Maryland that meant the many sparsely populated Bayside counties where watermen lived could easily outvote the urban areas and nontidal counties, where many supporters of the Brooks leasing plan lived.
The watermen had political numbers on their side — and they also had an old and popular argument. The oyster grounds should remain a public commons, they were created by nature and should be equally open to anyone with the energy to go fishing for oysters. It was an American idea that traced back to a popular interpretation of the Magna Carta, a belief that natural resources belonged not to kings or corporations but to the people. When he advocated private leases of Bay bottom, Brooks collided head on with this long-standing belief and called down on himself some nasty criticisms. His proposal was labeled "a monstrous proposition," a conspiracy between "the scientific fraternity" and "corporate cartels," a conspiracy that would reduce independent watermen to wage slaves.
Such a passionate opposition to private leases should not have surprised Brooks. Watermen not only fished the public oyster bars in great numbers, they also fought over them with pistols and rifles and an occasional land-based cannon. Hand tongers working from small boats fought sail dredgers working from their big, double-masted pungies and bugeyes and their smaller, single-masted skipjacks. And for decades both groups battled an undermanned Oyster Navy, the state's marine police force charged with keeping the peace and enforcing a few rudimentary conservation laws (for example: throwing back the small oysters).
During the famous oyster wars of the 19th century, the flagship of Maryland's Oyster Navy was the Governor MacLane, a steam-driven warship, shown here battling oyster pirates caught illegally dredging oysters at night on fast-sailing schooners. Launched in 1884, the MacLane carried a howitzer, but would on occasion sink wooden ships by ramming them with its iron bow. Engraving, Harper's Magazine
Those "oyster wars" of the late 19th century became famous in Maryland history, but the battle that Brooks kicked off between watermen and would-be oyster farmers, though little-noted in the history books, would last much longer. For 133 years, watermen who fished oysters off the public oyster grounds were able to use their political clout to defeat or disable proposals to increase the size and number of private leases on the Bay's bottom. The only oyster leases allowed were small, so small it became difficult — in most cases — to create sustainable businesses.
Their opposition to leasing was more than political. Those growers who somehow managed to get leases were often robbed by poachers and pirates who helped themselves to the oyster crop that farmers had planted. This long-running and quarrelsome saga played like a remake of one of those old westerns. (See Shane, starring Alan Ladd, for a classic take on these clashes.) The cattle barons wanted open range for their herds, the farmers wanted to protect their crops, and the cowboys kept breaking down any fences the sodbusters put up.
The Brooks argument for oyster farming on private leases went nowhere with the General Assembly, and so did similar pleas put forward over the decades by other commissions and by citizen groups and scientific task forces. Two state commissions chaired by the president of Johns Hopkins University would recommend expanded farming, and so would the Baltimore Association of Commerce, the Commission on Conservation of Natural Resources, the Maryland Seafood Advisory Commission of the Wye Institute, the Wolman Commission, the Maryland Oyster Roundtable, and the EPA Chesapeake Bay Program. Similar recommendations came from scientific consensus reports organized by the Virginia Institute of Marine Science and the University of Maryland Center for Environmental Science.
These efforts often produced smart advice for managing the public fishery, for working around disease outbreaks, and for organizing the Oyster Recovery Partnership, the engine for current efforts to rebuild oyster reefs. With few exceptions, however, nearly all recommendations about expanding farming opportunities met a similar fate: they were largely ignored.
By the time Bill Eichbaum called his first meeting of the latest Oyster Advisory Commission in 2007, the ancient argument between fishermen and farmers had shifted focus dramatically. There would now be some debate within the commission about expanding opportunities for oyster farming, but there would be much more debate about whether to simply shut down the historic public fishery at the same time. "The watermen were scared to death we were going to recommend a complete ban on oysters," said Eichbaum. "That's what the environmental community wanted."
What Eichbaum wanted was a consensus that could not be easily ignored like so many past reports. And he had some ideas about how to get it, some lessons learned from his own history. He wasn't about to run ahead of his blockers this time.
At the first meet-and-greet session he began laying the groundwork for consensus building. He would be working with a collection of 22 members who were also well connected with Chesapeake Bay environmental and fisheries issues. It included eight scientists, five activists from major environmental organizations, three politicians, two Sea Grant Extension specialists, one real estate developer, one lawyer, one seafood processor, and one — only one — waterman.
"That was a stacked deck," said Brown, head of the Maryland Watermen's Association, and he was right. The governor had asked John R. Griffin, his Secretary for Natural Resources, to hand pick a chairman and he chose Eichbaum, his colleague during the heady days when the Hughes administration was creating the state's Bay restoration programs. Griffin also hand picked commission members who were "not overly invested" in previous oyster management issues and would be open to new ideas.
One of the roles of a commission is to give politicians in the General Assembly the confidence that the policy changes make sense and will be accepted by the voters. Hence all the scientists from universities and all the activists from environmental organizations with policy agendas to push and public outreach programs to help push them. A consensus from this group, Brown suspected, would probably not represent the watermen's views very well. And it would certainly carry weight with the legislature, a lot more weight than the views of 529 watermen — the average number of licensed harvesters in those years.
During their first work session, Eichbaum reviewed with the group their work charge and their work schedule, but he also included a short video on the oyster fishery, a strategic planning exercise, and a post-work-session dinner. The state of Maryland picked up the tab for the dinner, and the chairman personally picked up the tab for the Chablis, Pinot Noir and Burgundy.
Dinner, he figured, could be one of the keys to consensus, and he scheduled one for the end of every work session. "It changes the climate a little bit," said Eichbaum. "People do get to know each other a little bit at a personal level. They find out that the guy they thought was an idiot on oysters likes to fish and they like to fish."
There would be no idiots about oysters by the end of the commission's work.
To build a consensus, Eichbaum worked with the group to shape a shared background about the problems and potential of the industry. He inserted into every work session in-depth presentations, some about the biology and ecology of the oyster, some about the history and technology and economy of the industry. The science came from researchers bearing PowerPoint presentations. Most of the industry backgrounders came from Don Webster and Don Meritt, two Maryland Sea Grant Extension agents who'd worked more than 30 years developing techniques for oyster aquaculture that might work in the Chesapeake Bay.
When the commission looked to the science community for guidance, however, they found that consensus didn't come easily there either — at least when it came to a fishing moratorium, the watermen's worst nightmare. Don Boesch, the president of the University of Maryland Center for Environmental Science organized an in-house oyster summit to bring together 13 university scientists and get them to give their best advice to the new commission. Two-thirds of the scientists advised a complete shutdown on fishing. "When any fishery in the world gets down to about one percent or less," said Boesch, "then it is stupid to keep it open. We need a moratorium." A minority of the scientists disagreed, however, threatening to walk out of the summit and refusing to sign any consensus that called for a moratorium.
Boesch was used to negotiating over tough environmental issues — he has served on the Governor's Bay Cabinet under four administrations — but on the moratorium question the best science advice he could manage was a shaky consensus that didn't take a strong stand. According to the scientists, "the costs and benefits of a harvest moratorium versus large closures should be assessed." That may sound pretty bland — it doesn't decide on or discount the idea of a shutdown — but it didn't come easily. "It took me some time to broker this thing, " said Boesch, "and a lot of one-on-one arm twisting to get everyone to agree to it." Perhaps wine would have helped.
It's the Economy, Stupid
Why was an oyster fishing industry worth saving? Because it once supported so many watermen and shucking houses and boatyards and communities. And those groups played a role in shaping the cultural heritage of Tidewater Maryland, a role that can still be seen in all the oyster festivals and oyster roasts, all the skipjack races and workboat contests that take place every fall and draw so many people.
When Eichbaum's commission completed their review of the industry, digging through economic data, it became obvious that oysters were no longer playing a positive role in the state's economy. The numbers they saw were sobering. In the five years before the Commission began its work, the average number of reported, licensed watermen was 529, a decline from the early 1980s when more than 2,000 were licensed oystermen — and a huge drop from the 1880s when 13,748 were reported to be working the oyster bars (whether licensed or not). The number of shucking houses where watermen could sell their harvest had dropped from 58 in 1974 to 20 in 1990. By 2007 only eight were still in business.
The oyster fishery had become a state-subsidized, "put-and-take" fishery that depended on state programs that moved and planted shell and seed oysters, setting a table that watermen could later harvest. Watermen even had double-dipping options: the state would pay them during the off season to do the moving and planting needed to create productive oyster grounds — and then during the harvest season the state would let watermen come back and fish up those oysters for a profit.
That subsidy was significant. The repletion programs, it is estimated, accounted for 70 to 80 percent of the oysters harvested every year out of the Bay. But taxes paid by watermen and shucking houses returned only 20 to 40 percent of the cost for those programs. The other 60 to 80 percent of the cost came out of state funding.
In light of all that data on dollars, watermen began losing their long argument against oyster farmers — at least with this advisory commission. "The state was not going to subsidize a wild fishery forever," said chairman Eichbaum, "given the economic realities of state budgets."
It's the Ecology, Stupid
Why was a moratorium so attractive to scientists and environmentalists? Because they wanted to restore the important ecological role that oysters used to play as one of the great filters in the Chesapeake ecosystem. That filtering power was even more important in a Bay that was now oversaturated with algae and plankton and plagued with annual dead zones as a result.
The idea that oysters could help to clean the Chesapeake Bay had become surprisingly popular, not only among scientists and state agencies, but also among environmentalists, citizens associations, school programs, and home owners. In the early 1990s an oyster gardening movement began in Maryland when residents began growing oysters in the Magothy and the South Rivers. By 1997 the Chesapeake Bay Foundation had joined the movement and by 2008 the state Department of Natural Resources had launched its Marylanders Grow Oysters Program. And the states of Maryland and Virginia launched an ambitious effort to increase the number of oysters in the Bay by tenfold over the next decade.
Oyster restoration had become widely popular, but commission members discovered that Maryland and the federal government had been spending more money — much more — on restoring the commercial fishery than on restoring the ecological power of oysters. Since 1994, Maryland and the federal government had invested $39.7 million in on-the-water recovery work, but 77 percent of the funds went to restoring oysters to benefit the public fishery. That left only 23 per cent of the funds for restoring oysters to benefit water quality.
This was an easy consensus. The commission called for shifting funds to establish and expand oyster sanctuaries. That mandated closing down large swaths of underwater oyster bars where watermen might still be harvesting oysters. Freed from harvest intrusions, oysters could grow to optimal size, spawn new generations, and over time create new natural reefs. Those reefs in turn would provide habitat and haven for small fish, filter-feeding mussels, and young blue crabs, all the while filtering plankton and algae out of the water.
Charting a New Fishery
In the end, oyster sanctuaries and oyster farming helped save the fishing industry. "It became apparent that you did not need to do a ban," says Eichbaum, "that you could get almost all of the benefits of the ban with large sanctuaries." A policy of expanding sanctuaries — and keeping them off limits to fishing — gave scientists hope that oyster reefs with all their ecosystem services could still be enlarged. And leaving some traditional oyster grounds open to harvest gave watermen hope they could still go dredging and tonging — just not in as many places
For the sanctuaries to be successful, they would have to be larger, much larger, and more numerous. "You are not going to do that with little five-acre sanctuaries [where] the oystermen can go in and steal every oyster out of at dusk," says Eichbaum. Huge sanctuaries would also be easier to police. Anyone working tongs or dredges on these waters would obviously be poaching.
A private fishery could also create other economic options besides poaching for watermen faced with the loss of some fishing grounds, the long-running decline in oyster harvests, and the sporadic declines that bedevil the blue crab fishery. Of course, the obvious irony in this argument is that Maryland would still be subsidizing a fishery, replacing its subsidy for the public fishery with subsidies to support the growth of a private fishery.
That growth would not come quickly and it would not come cheap. Oyster growers would need to invest upfront and wait two to four years for a crop they could harvest and sell. For growers working old-fashioned bottom leases, there were the costs for shell and other material to prepare a firm bottom, costs for spat-on-shell to plant on that bottom, costs for larvae and for setting tanks where they could create their own spat-on-shell. Growers going for newer approaches faced all those costs and more.
In 2007, Bill Eichbaum, a former state official, was chosen to chair an Oyster Advisory Commission. When its report called for creating more opportunities for oyster farming, the Maryland General Assembly passed historic legislation designed to stimulate the growth of private oyster farming in state waters. Photograph, Michael W. Fincham
The subsidies would take the form of low-interest loan programs, free lease surveys, and training programs to teach would-be farmers about how to apply for a loan, prepare a lease, get hatchery-spawned larvae, and work with remote setting tanks. Some of the money pots for loans were targeted for watermen willing to make the transition from fishing to farming.
The evidence that private farming would succeed and eventually pay for itself was not, however, based on success in Maryland. Since 1975 the private lease-based farming industry produced on average about four percent of Maryland's total annual oyster harvest. In the years leading up to 2007, private farming, hampered by a moratorium on new leases, was nearly non-existent, averaging about $1.5 million in sales.
The best evidence came from next door in Virginia where the oyster aquaculture industry was worth about $24 million in sales and still expanding. New companies were forming, trying new technologies, working with sterile triploid oysters, and aggressively creating and marketing their brands of oysters. Could this be a model for Maryland?
Nobody was predicting, as W.K. Brooks once did, that private farming would ever reach a 500-million-bushel harvest in Maryland, but the Oyster Advisory Commission that Eichbaum led was predicting that Maryland's new oyster aquaculture industry would eventually be self-supporting.
There was also other evidence for shifting to a private fishery, evidence from distant countries where aquaculture has long been practiced. "There is not another oyster fishery in the world that is not based on aquaculture," Eichbaum says, "and to pretend that in the 100-mile stretch of the upper Chesapeake Bay was the unique place in the world where there would continue to be a large-scale wild industry was nutty."
The old argument between watermen and would-be farmers may completely disappear, but it seems to have subsided into a working truce. A certain number of watermen always worked both sides of the great divide, fishing the public bars while also using private leases. In the past some watermen used their leases to store oysters they took from natural bars, some planted shell and seed and sold their crop during the off-season. Now anyone who wants to keep a lease has to work the lease.
As president of the Maryland Watermen's Association, Robert T. Brown still complains about the oyster grounds now lost to sanctuaries and leasing, but he says, "There is room enough out there for both of us."
He should know. Brown is buying larvae and using eight large remote setting tanks, bought with a low-interest loan, where he can create his own spat-on-shell. He sells some of these seed oysters to county oyster councils in St. Mary's, Charles, Calvert, even Kent Counties. The councils plant his seed oysters on sanctuaries and on nearby natural bars where watermen, including Brown, can tong and dredge them up.
And he plants some of his seed oysters on his own bottom leases. They cover about 100 acres down in a creek near Colton's Point on the Potomac River, a jut of land just across from St. Clement's Island. That's the spot where the first Maryland colonists landed in 1634 and soon after found a clear-running river and Bay well-stocked with fat oysters waiting to be harvested.