Oyster Wars, Viewsheds and Property Rights

An oysterman at work in Virginia Beach’s Lynnhaven River. Photo credit: Associated Press

One might think all Virginians would be delighted by the resurgence of the oyster population in the Chesapeake Bay. But more oysters means more oystermen, and more oystermen means more strange men trudging around the shallows and dragging around ugly cages within the sight of wealthy waterfront property owners.

The resurgence has led to resistance from coastal homeowners who want to maintain picturesque views and has fueled a debate over access to public waterways, reports the Associated Press.

Homeowners say the growing number of oystermen — dressed in waders and often tending cages of shellfish — spoil their views and invade their privacy. Residents also worry about less access to the water and the safety of boaters and swimmers.

Low tides often expose oyster cages, usually accompanied by markers or warning signs that protrude from the surface. In some places, cages float.

“All of sudden you have people working in your backyard like it was some industrial area,” said John Korte, a retired NASA aerospace engineer. “They may be a hundred feet away from someone’s yard.”

In a 2012 lawsuit in York County focused on the right of two oystermen to use property in a residential neighborhood for industrial-scale harvesting and cleaning operations. The new trend goes much further. In Virginia, Maryland and Delaware, homeowners are seeking greater restrictions against oystermen activities that offend their sensibilities. But the oystermen aren’t rolling over.

“Oftentimes, affluent and new members of the community have the point of view that they own the water in front of them, which is really not true,” said Bob Rheault, executive director of the East Coast Shellfish Growers Association. “We need to win back our social license to farm.”

Bacon’s bottom line: The fate of oysters, which are making a comeback in large part to the efforts of oystermen who have an economic incentive to create oyster reefs. Oysters are a keystone species in the Chesapeake Bay. As a matter of public policy, this socially beneficial activity should be encouraged, not discouraged.

But recovery of the oyster population is being stymied, in part, by a massive redefinition of property rights — in the popular culture, if not yet in the law. Owners of waterfront property are effectively trying to extend their property rights into public waterways. They are asserting a right to an undefiled viewshed. When they purchased their property, they paid a premium for pristine water views. When oyster populations revived and oystermen began working shallows in public waters that their forebears had abandoned decades ago, property owners perceived them as interlopers.

This is similar to a trend in other places, most notably in rural areas with gorgeous views of mountains, hills, woodlands, farms, rivers and streams. Once upon a time, Virginians purchased rural property for their productive value as farms or timberland. Over the years, people began buying property for the scenery. They paid a premium price for their views, and they objected to anything — be it a cell tower, transmission line, gas pipeline, or industrial facility — that diminished those views.

Here is a photo of the view I observed last month while dining on the porch of the Pippin Hill Farm winery. The owners had built the winery to take full advantage of the beautiful view. Gauging by the large number of people who visited that Saturday to enjoy meals and indulge in wine tastings, the enterprise is highly successful. Now, imagine someone proposing to disrupt that image. I can guarantee that the winery owners would rise up in opposition — not merely for aesthetic reasons but because their livelihood would be threatened.

I’m not taking sides in the dispute between landowners and energy companies, or property owners and oystermen. I am not even drawing a moral equivalence. Oystermen are working in public waters, while inland landowners object to energy companies using eminent domain to cross their land. I am saying that the rise of viewsheds as a determinant of property value is fueling conflict that did not previously occur. I’m not sure that our system of laws and regulations has caught up.

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29 responses to “Oyster Wars, Viewsheds and Property Rights

  1. “The fate of oysters, which are making a comeback in large part to the efforts of oystermen who have an economic incentive to create oyster reefs.”

    I don’t know anybody who thinks the oysters are making a comeback due to the efforts of oystermen. Just the opposite. The oysters are making a comeback despite the efforts of oystermen. It was certainly the overfishing of oysters by oystermen that contributed in a large way to the depletion of oysters from the bay.

    Meanwhile, there are continuing stories of oyster poaching like this -http://news.maryland.gov/dnr/2014/01/16/nrp-seizes-va-tractor-trailer-carrying-50-bushels-of-undersized-oysters/

    Given that Virginia only charges a $500 application fee and $1.50 per acre to lease bay bottom for oyster harvesting I am surprised more of the homeowners don’t lease the bottom near their homes themselves. What Virginia should probably do is allow the homeowners to lease the bottom in front of their homes on a priority basis but charges $1,500 per acre unless the bottom is actually used to grow and harvest oysters. The money collected could be used to restore natural oyster beds in deep water where nobody would object to real watermen fishing for oysters.

  2. “Oftentimes, affluent and new members of the community have the point of view that they own the water in front of them, which is really not true,” said Bob Rheault, executive director of the East Coast Shellfish Growers Association.

    True, but neither do the watermen own that water. They have no more of a right to use that bottom than you have a right to grow crops in you local city park. The right to use public waters is granted by the state.

  3. This is pure NIMBY – the very same folks who oppose offshore turbines, Appalachian Turbines, solar, powerlines, pipelines, cell towers, etc.

    yet they are fine with this that is what is done to provide them with their own electricity as long as it’s not in their “view”:

    • As usual you are struggling with basic concepts. Nobody has a right to farm oysters. The bottom of the bay belongs to the people of Maryland and Virginia. The state of Maryland and the Commonwealth of Virginia manage that resource on behalf of the people. Oysters can grow in up to 26 feet of water. The average depth of water in the Chesapeake is 21 feet. The Chesapeake Bay covers 4,480 sq mi. – that’s 2.9m acres underwater. Virginia leases 100,000 acres for oyster farming. For all the caterwauling. Virginia gets $1.50 per acre per year. Simple conclusion – there’s plenty of bay bottom to lease to oystermen without having them right next to residential areas.

      Here’s a simple example of Maryland’s crab pot regulation …

      G. Crab pots may not be set in the following areas:

      (1) In water that is less than 4 feet deep at mean low tide, except as provided in §F(5) of this regulation;

      This is so the crab pots don’t impede swimming, boating, access to the shore, etc.

      The people who own the properties near the water pay a lot more in real estate taxes than Virginia collects at $1.50 per acre to lease the bay bottom. Virginia could keep everybody happy by mandating a minimum depth or deciding not to lease land right next to shore.

      As for these oyster cages repopulating the bay with oysters … don’t make me laugh. Maybe 90% of the oysters in those cages are sterile triploid variants. Their lack of a reproductive cycle makes them grow faster. They’re not repopulating anything.

      As for your mountaintop removal point … holy non-sequiter Batman! If you want to do something about that – get the Imperial Clown Show in Richmond to pass a law stating that no coal mined via mountaintop removal may be used to generate electricity in Virginia.

      • Don, thanks for the insight into the oyster situation. I had not considered the fact that the Commonwealth leases water acreage to the oystermen. Also, thanks for setting the record straight regarding the oystermen’s role in stimulating oyster repopulation. You obviously know more about this subject than I do.

        All that said, it still strikes me that shoreline property owners are asserting a quasi property right over the public waters off their property. Hopefully, as you suggest, there are reasonable ways to accommodate both sides of the debate.

        • I think anybody who wants to lease the bay bottom ought to be able to do so – for a lot more than $1.50 per acre! Property owners should get first shot at the leases next to their property. If they don’t grow oysters or clams they should pay more since they’re not generating sales taxes or employment. Even if the property owners leased 100,000 acres at $150 per acre per year Virginia would still have way more than a million acres unused. If usable bay bottom were limited … 1) I’d wonder why it was being leased at $1.50 per acre and … 2) I’d probably side with the oystermen. However, there seems to be plenty of bay bottom to lease.

      • re: ” Nobody has a right to farm oysters. ” Does that mean they can’t fish there either? you know all those hooks and lines.. screwing up the swimming and stuff…

        is that true?

        I suspect that’s a NIMBY perspective, eh?

        went to visit a friend with waterfront a while ago… sitting out on deck overlooking the sound when all of a sudden all hell broke loose.. the “business” that rents skidoos opened and from that point on – sitting on that deck was a joke.

        of course the scenery was still quite excellent.

        • Not sure why. I don’t have a right to fish in the Chesapeake Bay. Instead, I apply for a license from the state. And the state has all kinds of restrictions on my fishing license. For five years the state forbade me from keeping rockfish. The state forbids me from fishing in certain parts of the bay. Same for the oystermen. They don’t have a right to do anything. They have a license issued by the state. As for shallow water oysters – no thanks. I love oysters, especially Choptank Sweets but I want my oysters to have some water above them. That shallow water gets mighty warm in the late Spring and Summer. And warm and uncooked food don’t match!

        • I believe there are many kinds of ordinary fishing in tidal waters that you don’t need a license for, in Virginia. But your general point about potential regulation of all fisheries and active regulation of some like rockfish, and the regulated seasons for crabs etc., and the potential for charging more for oyster leases, is certainly true. Those watermen have a powerful presence and lots of sentimental support in the GA.

  4. You’re right Jim. Our eminent domain laws are far behind public beliefs. They need to be changed.

  5. re: ” get the Imperial Clown Show in Richmond to pass a law stating that no coal mined via mountaintop removal may be used to generate electricity in Virginia.”

    oh you mean things like coal ash pits… hog farm lagoons and poultry poop running into local rivers then down to the Bay? Or how about combined sewer systems or just storm water runoff in Fairfax?

    property rights, eh?

  6. Let me ask a related question: If a wealthy property owner’s mountain or waterside views are obstructed, are they due a reduction in their tax assessment?

    • If the guy across the street paints his house a weird color are you entitled to a reduction in taxes?

      If Dominion builds an ugly pipeline over a mountain – are all the affected property owners entitled to a property tax reduction?

      hmm… this seems to have potential, eh?

      • But if your tax assessment drops due to a loss or obstruction of viewshed, doesn’t that imply there is some value? And if there is value, then we start to tread ever so lightly onto the question of property rights…..

        • Anybody who doubts that viewshed affects the value of property has never priced land with Chesapeake Bay waterfront! My guess in Talbot County, MD – on the bay … $500,000 per acre. One mile inland (with no view of the bay) … $5,000 per acre. In most places the tax assessment of the house is supposed to represent the actual market value of the house. If the view is diminished then the value goes down.

          The difference between Virginia and Maryland is that localities have some power in Maryland. Hell, there’s a county income tax. So, the localities try to keep the peace between the landowners and the watermen. The landowners know that the watermen were here first and their presence adds a authenticness to the area. They also know that the watermen make the money from the water and everybody respects that. The watermen know that the landowners pay the property taxes that fund the schools, firemen, police, etc. In Virginia, any half-assed legislator from Western Loudoun County can decide they know better than the residents of the Northern Neck about oyster farming. They can vote on laws about things they absolutely don’t understand. Wouldn’t it make a lot more sense to let the localities on the Chesapeake Bay decide how to best balance the rights of oystermen and landowners? Trust me – I know many of the fops and dandies we send from NoVa to Richmond. They have no place voting on hunting or fishing issues in rural Virginia. As a NoVa resident I much more trust the localities to make the decisions than the state politicians representing my area of the state.

  7. The title ‘Oyster Wars’ reminds me of the original Oyster Wars in the Bay; that is some of my favorite history right there.
    Don’t have anything to say, but reading this reminded me of a recent case in Hampton regarding property rights and the water. This may not be uniform, but in this case, the owner owns the property to the median tide line: http://www.dailypress.com/news/hampton/dp-va-supreme-court-grandview-property-owner-can-block-off-beach-20150608-story.html

  8. The right to navigate public waters is fairly settled… except in some places in Western Va where if you take a canoe.. you WILL be arrested!

    but down in tidal waters.. I think the issue is more murky

    mean tide explained here: https://tidesandcurrents.noaa.gov/datum_options.html

    Mean Tide Level
    The arithmetic mean of mean high water and mean low water.

    • You can navigate public waterways (with some bizarre exceptions) to your heart’s content. Just like you can walk through a public park till your heart’s content. However, you can’t graze your cattle in a public park or plant corn in a public park without the government’s consent.

      As a waterfront property owner, mean tide is not a big problem. I suppose it can be measured using tidal charts if you really want to measure it. Moreover, it tends to be pretty irrelevant. The difference between high and low tide where I live is about 3 feet. I own 18″ and the government owns 18″. Maryland’s laws are so strict that you’re not allowed to do anything within 200 feet of mean tide level so it might add or subtract 18″ on the placement of a new shed.

  9. re: ” You can navigate public waterways (with some bizarre exceptions) to your heart’s content. Just like you can walk through a public park ”

    can you fish if you have a license to fish?

    can someone anchor off your property and fish and swim?

    but I get your point about growing food… on public lands and waters..

    you can lease land and waters though.. millions of acres of govt-owned land is farmed, in cattle and other livestock.. and fish, crabs, oysters harvested.

    but when the govt restricts activities on public waters adjacent to your property- they are, in effect, giving you additional rights… over others.

    waterfront property owners are different breed… they’ll go after fellow-property owners if they build a dock or other structure – on their land …

    waterfront folks think they DO own the view!

    • “can someone anchor off your property and fish and swim?”

      Generally, yes. Some exceptions – if you anchor next to the Naval Academy you’ll get a visit from some tough looking chaps. If you try to fish near the gas docks you’ll draw a visitor. You’re not supposed to get too close to the target ship lest a stray A-10 accidentally ventilates you and your boat with spent uranium shells.

  10. well yes.. if you get too close to Kings Bay – they tell you they are authorized to use deadly force.. but we’re talking about the uber and idle rich and their waterfront views…

    Can I come and anchor in front of your house and moon you while I fish?

    😉

  11. I’m troubled that the interests of dozens of homeowners whose properties come with no reasonable expectation of privacy nor unchangeable may trump the much wider interests of bay preservation, of aquaculture, of the Virginia economy. They need to look out at the oyster work , inhale deeply with a smile and say, “ah, the Bay at work again.” At least in Va Beach, many of the most powerful live exactly along these shorelines, and they have clout.

    The Supreme Court decision favoring FL interests over those of property owners had, as one of its principal tenets, that the state views its coastline as a state asset, essential for tourism. One could argue that bay activity is a vital Virginia interest, an interest with far greater impact than what Mr & Mrs Gotrocks view while they sip morning coffee.

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