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AS THE WATER HAS ALWAYS RUN: Making sense of the feud over oyster farms

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There were 17 new applications for oyster farms in New Hanover County alone in 2017 … and some folks aren’t too happy with where they’re turning up.

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Bryan Pearson wants to start an oyster farm. As a local captain, fisherman and Wilmington native, he’s no stranger to the water. Besides potential for profit, he wants to help make his home waters healthier.

HEALTHIER HOME WATERS: Bryan Pearson wants to start an oyster farm in ILM to help keep our coast clean. Photo by John Wolfe

HEALTHIER HOME WATERS: Tom Cannon holds a single oyster, which can filter 50 gallons of water alone, at his oyster farm behind Masonboro Island. Photo by John Wolfe

“We want people to fish around it, we want to help the water quality out, and we want to be good stewards and good neighbors,” Pearson said. “There have been three sewage spills in the sound since Christmas . . . Putting more oysters in helps everybody.”

Oysters are a keystone species which provide habitat for fish and other aquatic life—and clean the water, to boot. A single adult oyster can filter 50 gallons of water per day. With wild oyster populations dipping below 10 percent of historic levels (and more and more people’s palates craving the tasty shellfish), his timing couldn’t be better.

And he’s not alone.

There were 17 new applications for oyster farms in New Hanover County alone in 2017, 11 of which were for water column leases (a new method of farming elevating the oysters off the sea floor in cages to produce a more consistent product). The southeastern coast has seen a surge in popularity in oyster grow-out operations; last year, NPR called our region the “Napa Valley of Oysters.”

In recent months there has been a spat (pun fully intended) over Pearson’s proposed leasing site in the waters of Masonboro Sound. Tom Cannon’s nearby farm has already caught the eye and ire of some of the wealthy occupants of the bluff overlooking it, including local surgeon Dr. Hormoze Goudarzi. In the StarNews last week Dr. Goudarzi claimed Cannon’s farm has “confiscated [his] right to enjoy the beauty” of the view from his window.

During a phone interview with encore, Dr. Goudarzi got emotional, spoke passionately about the beauty of Masonboro Sound and equated the presence of the farm to someone coming into his house and “going to bed with [his] wife because she is beautiful.” His main complaints seemed to be the Department of Marine Fisheries “slipped this one through,” and the farm structures (which is mostly dry at low tide and far from any navigational channel) posed a hazard to navigation to jet skis. “I’m going to fight this until I run out of money or I die,” he said.

He also claims his deed shows he owns the water in front of his house—all the way out to the Intercoastal Waterway. He’s been paying taxes on it.

The question of “who owns the water” is old and complex. I’m no lawyer, but I am a sailor who has spent enough time on the sea to recognize ownership of the water as an inherently fallacious concept. The law does provide, however, who owns the land the water flows over.

The history is interesting: In Ancient Rome, the emperor Justinian I proclaimed “Aqua currit et debet currerer, ut currerer solebat,” or, “water runs, and should run, as it has always run.” To the Romans the sea and shore could be used by everyone and were incapable of private ownership. Later, in English Common Law (from which our American legal system descended), the sovereign owned both the sea and seabed—and any lord who owned waterfront property found their ownership stopped at the mean high-water mark. Even though the king “owned” the sea, the public was allowed to use it for navigation and commercial purposes, like fishing.

When America became her own country in 1776, the title for submerged lands reverted from the crown to the states, and the waters and intertidal zone became “public trust,” belonging to we the people who make up the states.

From an excellent pamphlet on Public Trust Waters from NC Marine Fisheries:

“This concept . . . flowed from the assumption that public ownership was essential to prevent private individuals from asserting monopolistic rights [that] would inhibit economic growth.”

So, really, the water and land below the high-tide mark belongs to you and I, the citizens who make up the great state of North Carolina—not to any one of us more than any other, no matter the wealth.

So, if I wanted to (and I have always wanted to do this), my working-class butt could paddle up to private Figure Eight Island on my battered old kayak, land on the beach at low tide, and grill hot dogs all day, until the water lapped around my ankles. Essentially, there isn’t a damn thing any millionaire could say about it.

Mr. Pearson provided encore with public documents from the Register of Deeds, which clearly showed that “any portion of [Dr. Goudarzi’s property] which may reside below the mean high water line… is excluded.” He also found a letter from the DMF, which states an interest in a previous shellfish lease claim at the site expired in 1998, which makes it fair game. Also worth a mention: There have been shellfish leases in various locales behind Masonboro Island for more than 100 years.

Perhaps complaints about their property views can be dismissed as the whining of the wealthy—or an advanced onset of Mufasa syndrome (i.e., thinking they own “everything the light touches”). But it might be fair to recognize them as a form of NIMBY-ism (Not In My Back Yard). All the homeowners I’ve spoken with, including Dr. Goudarzi, have been adamant they love oysters and have nothing against the farmers themselves.

But let’s dig a little deeper. It isn’t just happening here. More people are moving to the coasts country-wide, and more waterfront property is being developed. Similar disputes over oyster farms have been reported recently by the Associated Press, between Chesapeake Bay watermen in Virginia and the owners of mansions onshore. Would there be the same amount of fuss if the farms were up an isolated creek somewhere, out of sight and mind of the neighbors? Probably not. As Wilmington and other coastal towns grow more crowded by the minute, the chances of anything being in true isolation anymore will vanish.

This point was brought up by the NC Marine Fisheries Commission during their meeting on Valentine’s Day, held to discuss, among other things, potential resolutions for oyster lease conflicts. Anne Deaton and Mike Rowan, who coordinate the shellfish-leasing program, recognized there is a struggle for what little space is available for grow-out. Much of the waters in the county are off limits because they are already closed for shellfish harvesting, due to pollution (like sewage spills and runoff caused by development) or part of the protected estuarine research reserve of Masonboro Island. The leases also must be compatible with existing public trust uses, according to Deaton.

MFC director Stephen Murphey commented on the challenges of regulating the  new industry, especially during a time of explosive growth. “It’s like trying to fix a car while it’s speeding down the interstate,” he said.
Many people getting into the new leases, he said, weren’t in the “traditional commercial fishing community,” but were entrepreneurial, looking at oyster farms more as business investments. The potential for litigation from homeowners complaining about spoiled views, he added, also have the capacity to overwhelm the existing program.

“But the job of the board,” he said, “is to promote agriculture in ways conducive with other activities.”

Potential solutions to disputes like the one behind Masonboro included the establishment of a board as a “prior administrative remedy” to the appeal for contested cases; create a hold on leases until a UNC Policy Collaboratory finishes developing their statewide shellfish aquaculture plan, due at the end of this year; and condition new leases maintain a minimum clearance at mean low water, to reduce navigation hazards.

It looks like Pearson’s farm will have to wait a little longer. After discussion, the board passed a motion, 8-1, to “temporarily stop issuing shellfish leases and accepting shellfish-lease applications from Bogue Sound south until the division can fully assess safety concerns and other regulatory needs and report back to the commission at its May 2018 meeting.”

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1 Comment

1 Comment

  1. Dana Sargent

    May 24, 2018 at 5:42 pm

    Dr. Hormoze Goudarzi: nice legs. Bad attitude.

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