Tony Overman/The Olympian
John Lentz has been raising geoduck clams -- such as this just-harvested 4-year-old -- on his property along Eld Inlet. Legislation passed last week to allow the farming of all kinds of shellfish in the area, not just oysters.

Legislature comes to rescue of geoduck, clam growers

Discovery of archaic laws causes waves for industry

JOHN DODGE, THE OLYMPIAN

Originally published Monday, March 18, 2002

"We've made a $7 million investment in geoducks in the past three years. It was important to us to get this fixed."

-- Bill Dewey, spokesman for Taylor Shellfish Co.

SOUTH SOUND -- Mason County shellfish grower Brett Bishop is breathing a little easier these days, knowing the state Legislature has erased a crippling threat to his industry.

The menace confronting South Sound shellfish growers and others was the potential enforcement of two 1895 state laws that made it illegal to grow anything but oysters on nearly 47,000 acres of state tidelands sold to shellfish growers before 1935.

Use the land for something else and the state could take it back, the Bush and Callow acts said.

But state lawmakers rode to the rescue, unanimously approving a bill that allows all types of shellfish to be grown on former state tidelands.

Major impact

It awaits the governor's signature. It's a huge deal in South Sound, where clams compete with oysters as the cash crop on those former state lands. For instance, Bishop, whose family has farmed shellfish in Little Skookum Inlet since 1883, grows clams on 90 percent of his 23 acres.

"The clam industry expanded dramatically in the past three decades and much of it is on Bush and Callow act lands," noted Bill Dewey, spokesman for Taylor Shellfish Co. near Shelton.

Until this summer, the century-old laws were thought to be irrelevant because of yet another old law -- the Clam Act of 1919, which authorized clam farms and other shellfish growing on those tidelands.

But unbeknownst to the growers, the Clam Act was repealed by the Legislature in 1949 during a complete rewriting of the state fisheries code.

The issue reached a boiling point in August when the state Department of Natural Resources, which manages the state's 2.6 million acres of aquatic lands, sent letters to four tideland owners in Pierce County, warning them that lands sold under the act were under review.

The letter said it was: "DNR's intent to exert the state's reversionary interest when nonconforming uses of these oyster lands are discovered."

The letters were in response to a citizen's complaint about geoduck harvesting in the Purdy area.

Shock waves

The state agency based its stance on a 1991 state assistant attorney general's legal opinion that the state likely was obligated to reclaim the Bush-Callow lands not used to grow oysters.

The message sent shock waves through the state's shellfish industry.

"It caught us totally by surprise," Bishop recalled.

Suddenly, nearly 7 million pounds of clams harvested annually -- representing about 20 percent of the state's $73.5 million a year shellfish industry -- was in jeopardy.

And it wasn't just clam-growing that was at risk.

In recent years, several growers, including Taylor Shellfish, have started planting geoducks on Bush-Callow lands. Those bids, too, would be illegal under the 1991 interpretation of the law.

"We've made a $7 million investment in geoducks in the past three years," Dewey said. "It was important to us to get this fixed."

At the time, state Lands Commissioner Doug Sutherland said it was not his intent to restrict shellfish-growing to oysters.

But the state agency also faced pressure from other members of the public who would just as soon see the lands returned to some public use.

Prior to the 2002 legislative session, the state agency, shellfish growers and tribes worked together on a bill to address the problem, said Loren Stern, manager of DNR's aquatic lands division. The bill met with little political opposition.

"It didn't go all the way, but it covers 99 percent of our problems," Dewey said.

Dewey was referring to language in the bill that says subtidal Bush-Callow lands -- lands constantly submerged and not exposed at low tide -- had to be in cultivation prior to Dec. 31, 2001, to qualify for exemption. That could limit future subtidal geoduck farming, he said.

The bill leaves open the question of what to do with nonconforming uses of Bush-Callow lands that don't involve shellfish-growing, Stern said.

The agency has anecdotal evidence that marinas, docks and bulkheads have been built over the top of lands originally sold to bolster the oyster industry, he said.

"We haven't done a rigorous inventory," Stern said. "It's one of those issues we'll have to sit down and take a look at."

John Dodge covers the environment and energy for The Olympian. He can be reached at 360-754-5444 or by e-mail at jdodge@olympia.gannett.com.

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