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Second Story – Winter 2013
 
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Lowcountry Living Shorelines: Restoring Carolina's Reefs
VOLUME 27, NUMBER 2, WINTER 2013             

Lowcountry Living Shorelines: Restoring Carolina's Reefs
By John H. Tibbetts                                                                       back to main story  


Oysters and the Public Trust Doctrine

Nineteenth century legal battles over the Eastern oyster helped determine how submerged lands in various states would be managed and how lines would be drawn and redrawn between private and public rights.

In 1818, Robert Arnold, a New Jersey farmer, purchased several boatloads of immature oysters and “bedded” them in the Raritan River in front of his farm, and then put up willow twigs to mark off his claim.

Bedding was still a new practice in America. Historically, wild oyster beds had once been immensely rich, but overharvesting was exhausting them. So bedders acquired seed oysters harvested from distant wild reefs and planted them on estuary bottoms.

Robert Arnold defended his river claim, driving off “so far as he was able, every one who attempted to take oysters without his leave.” But one day, a fisherman named Benajah Mundy, “came, at the head of a small fleet of skiffs, and took away oysters.” So Arnold brought a suit that came before the New Jersey Supreme Court in 1821 as a case about property rights.

Arnold claimed he owned the submerged lands—and the oysters—in front of his farm under a grant from the Proprietors, who had received these lands from the Duke of York, who in turn had received them from Charles II, King of England.

Mundy, however, claimed that “all the citizens of the state had a common right to take oysters therein” because the Raritan was a navigable river.

The United States was still a new nation, but this dispute had ancient roots. In 1775, when American colonies rebelled, British common law, based in part on the Magna Carta, held that the King and Parliament were allowed sovereignty over wild game and navigable waters in “sacred trust” for the people.

Under this trust, the people could use waterways as fishing grounds and highways. British common law, then, designated submerged areas as places available for public uses. After the American Revolution, these common-law principles were usually transferred to the 13 states.

But New Jersey did not have a king. What to do? The New Jersey Supreme Court ruled that the American Revolution had transferred sovereignty over wildlife and submerged areas from the British Crown and Parliament to the American people. The state legislature, then, became the people’s “rightful representative in this respect” and could exercise responsibility over tidal areas.

The state legislature, the Court ruled, “may lawfully erect ports, harbours, basins, docks, and wharves on the coasts of the sea . . . [and] create, enlarge, and improve oyster beds, by planting oysters therein in order to procure a more ample supply.”

Because New Jersey held sovereignty over oyster beds and other submerged areas, it could devise a system under which these sites might be used for private purposes. In 1825, the New Jersey legislature passed a law allowing the state to issue leases on public shellfish beds with a known history of cultivation.

Fishermen objected, arguing that the law would allow wealthy investors to acquire leases on the best oyster beds in the state and manage them 
as private property. Shellfish resources that were once common property, open to all, would now be privatized for all practical purposes, opponents said. Moreover, the state of New Jersey lacked constitutional authority to stop oystermen from harvesting on leased oyster grounds, critics said.

In 1842, a New Jersey case about oysters and submerged lands reached the U.S. Supreme Court. A landowner on New Jersey’s Raritan River claimed to own riparian land beneath the river and all rights to wildlife there, including oysters, tracing his title to a grant from King Charles to the Duke of York in 1664.

In Martin v. Waddell, Chief Justice Taney confirmed that states were the successors to the Parliament and the British Crown as having sovereignty over navigable waters, submerged lands, fish, and wildlife. Taney noted that when “the people of New Jersey took possession of the reins of government, and took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged to either the crown or the parliament, became immediately and rightly vested in the state.”

Martin v. Waddell was followed by a series of cases establishing that submerged lands would be held in trust by government, which must manage their use on behalf of the citizenry. Over time, this principle would be called the “public trust doctrine.”

By 1855, the state legislatures of New York, Connecticut, Rhode Island, and Massachusetts had passed laws allowing leasing of public shellfish beds. South Carolina followed in 1891.

By the mid-20th century, South Carolina’s leasing system was often criticized for allowing an individual or a single company to control thousands of acres of shellfish beds through multiple permits.

In the mid-1960s, the state established new recreational shellfish grounds, most of which were carved out of leased areas as a result of state managers negotiating with leaseholders.

In 1986, the South Carolina legislature eliminated the leasing system and created a permit system for public shellfish grounds managed by the SCDNR for recreational and commercial fishermen. Most leases became permits. A single firm or individual could acquire multiple permits with an overall maximum of 500 acres. There are now about 130 permitted areas averaging about 20 acres apiece.

The 1986 state law also provides SCDNR with direct authority over permit holders to ensure that they comply with fees and replanting requirements, according to Bill Anderson, a retired biologist who once supervised the SCDNR shellfish management section. Many more state shellfish grounds have been added over the years when culture permits were revoked for failure to pay annual rental fees or plant oyster shell or other substrate, he adds.

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Last updated: 4/3/2013 7:13:14 PM
Second Story – Winter 2013

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