Washington state will receive $417,000 as the result of agreements with three shellfish growers who had planted clams and oysters on state land, as I reported in a story in today’s Kitsap Sun.
These encroachments onto state tidelands were deemed unintentional, and the growers will be allowed to keep their shellfish in place until they mature. After harvest, the growers will pay the agreed-upon assessment.
These three latest cases and an earlier one essentially dropped into the lap of the Washington Department of Natural Resources. Two were identified by area residents, and two were identified by one of the growers.
I first started writing about this issue two years ago, after Taylor Shellfish Farms was found to be encroaching onto state tidelands. At the time I suggested in Water Ways that it may be time to open this Pandora’s Box and determine where all such encroachments can be found.
Since then, the state has elected a new public lands commissioner, and Peter Goldmark appears willing to slowly open this box and take a look inside.
Aaron Toso, spokesman for DNR, told me yesterday that agency staffers are developing a computer model that will help prioritize where to search for possible encroachments onto state tidelands. For a variety of reasons, some areas have been surveyed better than others, and it makes sense to start with areas where the state is likely to recover some money.
The state is not subject to adverse possession law, so I suspect DNR will be able to recoup the cost of the effort — although I was told two years ago that the money recovered goes into the Aquatic Lands Enhancement Account, which can’t be used to search for encroachments. If true, that means DNR must find the money elsewhere in its budget to conduct the search. Perhaps the Legislature could remedy the problem by allocating a percentage of the money recovered to this effort until everyone is satisfied that the growers are staying on their own property.
While the state is not subject to adverse possession, there may be some legal disputes with the state over the meaning or intent of the original deeds. (Read more on: What is a Trust Deed?) That may be one reason why DNR officials have been reluctant to open this Pandora’s Box. And, since private landowners do fall under the potential for adverse possession, we may see some growers claiming ownership to private tidelands where the original owners simply failed to defend their property rights.
I anticipate that DNR officials will experience some strife as they pry open Pandora’s Box. But I prefer a version of the mythological story in which the box also holds the power to defeat all the evils and usher in an era of harmony. That power is called Hope.
