A Report upon the Mollusk Fisheries of Massachusetts

by Massachusetts. Commissioners on Fisheries and Game; David Lawrence Belding

Private v. Public Ownership of Tidal Flats.—The first difficulty confronting this proposed system is the too frequently accepted fallacy that all lands between the tide marks now are and should be held in common by the inhabitants of the shore communities, to the exclusion of citizens from other sections of the State,—an assumption which is directly contrary to the more ancient law, supported by decisions of the highest courts, that the right of taking shellfish is a public right, freely open to any inhabitant of the State. Such unwarranted assumption of exclusive rights in the shellfisheries by individuals, corporations or towns sacrifices the rights of the majority. The disastrous effect of this policy is plainly demonstrated in the history of the rise and decline of the shellfisheries of Massachusetts.

Secondly, this fallacious assumption is contrary to the fundamental principles of all economic doctrines. It may be safely affirmed that the individual ownership of property has proved not only a success but even is a necessary condition of progress, and has in fact at length become the foundation of all society. It inevitably follows that if the system is justifiable in the case of farm lands it is equally justifiable in the case of the tidal flats, for the same principle is involved in each. It is therefore fair to assume that if private ownership of farm land has proved to be for the best interests of human progress, so private ownership of the tidal flats will also be a benefit to the public.

It is not our purpose to discuss the underlying principle involved in private ownership of property,—it is simply our purpose to call attention to two facts: (1) if individual control of real estate is just, private ownership of tidal flats and waters is likewise just; (2) that individual control of such areas is the only practical system yet devised capable of checking the alarming decline in the shellfisheries and of developing them to a normal state of productiveness, and rendering unnecessary an annually increasing mass of restrictive legislation.

The Present System.—The present system of controlling the shellfisheries is based on the communal ownership of the tidal flats. Ownership by the Commonwealth has degenerated into a system of town control, whereby every coast community has entire jurisdiction over its shellfisheries, to the practical exclusion of citizens of all other towns. Thus at the present time the mollusk fisheries of Massachusetts are divided into a number of separate and disorganized units, which are incapable of working together for the best interests of the towns or of the public. This communistic system is distinctly unsound, and is in direct opposition to the principles of social and economic development. The man who advocates keeping farm lands untilled and in common, for the sake of the few wild blackberries they might produce, would be considered mentally unbalanced; but it is precisely this system which holds sway over our relatively richer sea gardens. With no thought of seed time, but only of harvest, the fertile tidal flats are yearly divested of their fast-decreasing output by reckless and ruthless exploitation, and valuable territories when once exhausted are allowed to become barren. All hopes for the morrow are sacrificed to the clamorous demands of the present. The more the supply decreases, the more insistent becomes the demand; and the greater the demand, the more relentless grows the campaign of spoliation. The entire shore front of the Commonwealth is scoured and combed by irresponsible aliens and by exemplars of the "submerged tenth" who are now but despoilers, but who if opportunity were present might become cultivators of the flats rather than devastators. The thoughtful fisherman, who would control the industry in a measure, is under present conditions overruled by his selfish or short-sighted fellow workers, and is of necessity forced to join their ranks by the clinching argument that if the shellfisheries are to be ruined anyway, he might as well have his share as long as they last. The theory of public ownership of shellfisheries has been weighed in the balance and found wanting. The necessity for some radical change in the present system is becoming more and more apparent, and a system of private control, with certain modifications, is the logical result.

Need of Reform.—The shellfish supply of Massachusetts is steadily declining. So extensive is this decline that it is unnecessary to mention the abundant proofs of almost complete exhaustion in certain localities and of failing output in others. While the apparent cause of this decrease is overfishing and unsystematic digging, the real cause can be readily traced to the present defective system of town control, which has made possible, through inefficiency and neglect, the deplorable condition of this important industry. Unless the decline is at once checked, within a very few years our valuable shellfisheries will be exhausted to the point of commercial extinction. The legislation of former years, essentially restrictive and prohibitory in character, has unfortunately been constructed on a false economic basis. Its aim has been to protect these industries by restricting the demand rather than by increasing the supply. What the future requires is not merely protective or restrictive legislation, but rather constructive laws for developing the shellfisheries. The system of shellfish culture here presented appears to be the only practical method for improving the condition of these industries in such a way as to protect all vested interests of both private and public rights, and at the same time to make possible adequate utilization of the natural productive capacity.

In brief, the proposed system of shellfish culture is based upon a system of leases to individuals. These leases should be divided into two classes: (1) those covering the territory between the tide lines, and consisting of small areas, from 1 to 2 acres; (2) the territory below low-water mark, comprised of two classes of grants, which differ only in size and distance from the shore,—the smaller (a), from 1 to 5 acres, to include the shore waters, small bays and inlets, and the larger (b), of unrestricted size, to be given in the deeper and more exposed waters. The owners of all grants shall be permitted to plant and grow all species of shellfish, and shall have exclusive control of the fisheries area covered by such lease. The large and more exposed grants, which cannot be economically worked without considerable capital, should be available for companies; while the smaller holdings, for which but small capital is required, are restricted to the use of the individual shore fishermen. For the tidal flats and shore waters but one-half of the whole territory in any one township shall be leased, the other half still remaining public property.

Success of this System.—The system of private control by leased grants is by no means a new and untried theory. In actual operation for many years in this and other States, in spite of lack of protection and other drawbacks which would be eliminated from a perfected system, it has proved an unqualified success. The rapid depletion and even extermination of the native oyster beds necessitated legislative consideration, and for years the oyster industry above and below low-water mark in this and other States has been dealt with by a similar system. The plan here suggested would be but a direct extension of a well-tested principle towards the cultivation of other species of mollusks. The financial value to the fishermen of such a step has been proved beyond all question in this State during the past three years by the demonstrations of the Massachusetts department of fisheries and game. These experiments have proved that tidal flats, with small outlay of capital and labor, will yield, acre for acre, a far more valuable harvest than any upland garden.

This system has the further element of success by being based on individual effort, in contrast to the present communal regulation of shellfisheries. In all business individual initiative and effort furnish the keynote of success, and the future wellfare of the shellfisheries depends upon the application of this principle.

Nature cannot without the aid and co-operation of man repair the ill-advised, untimely and exhaustive inroads made in her resources. This is shown in the thousands of acres of good farm lands made unproductive by unwise treatment, and by the wasteful destruction of our forests. It is as strikingly shown in the decline of our shellfisheries. The fisherman exhausts the wealth of the flats by destroying both young and adults, and returns nothing. The result is decrease and ultimate extermination. The farmer prepares his land carefully and intelligently, plants his seed and in due time reaps a harvest. If the fisherman could have similar rights over the tidal areas, he could with far less labor and capital and with far greater certainty year by year reap a continuous harvest at all seasons. The success of the leasing system in other States, notably Louisiana, Rhode Island and others, is definite and conspicuous.

The Obstacles to this Proposed System.—Before the proposed system of titles to shellfish ground can be put in actual operation, it is absolutely necessary to have all rights and special privileges pertaining to shore areas revested in State control by repeal of certain laws. In this centralization of authority four main factors must be carefully considered: (1) communal rights to fisheries in tidal areas, as in the colonial beach law of 1641-47; (2) the theory, practice and results of town supervision and control; (3) the rights of riparian owners; (4) the rights of the fishermen and of all other inhabitants of the State. So important are all four that it is necessary to discuss each in turn.