Big Oyster Battle Brewing in Texas Courts

     SMITH POINTE, Texas (CN) – Standing in a refrigerated room at his seafood wholesaler, Tracy Woody, general manager of Jeri’s Seafood, tossed back a raw oyster newly shucked for inspection.
     “Not much salt,” Woody said. The tables lining the wall behind him were piled high with oysters scheduled to be shucked the next day.
     Since oysters feed by filtering the water in which they live, a salty oyster could mean high salt levels in the water. This in turn could speak to problems in the oyster’s habitat. Salty water brings more predators, and the oysters have to focus their energy on growing thicker shells instead of growing fat within.
     The water has been salty in recent years, and a combination of overfishing and environmental factors has thinned the harvest in Galveston Bay.
     Woody found himself last year at the center of a fight between oyster companies and government agencies when he leased 23,000 acres of submerged land from the Chambers-Liberty Counties Navigation District to cultivate and harvest oysters outside of the state’s defined oyster-fishing waters.
     Other fishermen argue – and Texas Parks and Wildlife agree – that the district did not have the authority to grant Woody a lease. In a civil suit to have Woody’s lease enjoined, his competitors claim that Woody and the navigation board discussed the lease behind closed doors and crafted public agendas in vague terms to conceal deliberations from the public.
     “No one attended any of those meetings,” David Feldman, the attorney who filed the April 17 complaint said in an interview.
     “If other oystermen had known, they would have been hanging from the rafters at those meetings,” said Feldman, who represents plaintiffs from five Galveston-based oyster companies.
     Oyster fishing in Texas was a $23.4 million industry in 2013. Most of the oyster harvest in Texas comes out of public reefs in Galveston Bay, a 600 square-mile stretch of water isolated from the Gulf of Mexico by Galveston Island. Hundreds of boats from local oyster companies crowd into the bay at the start of oyster season to fish for a dwindling population of oysters. A 2011 drought shrank the flow of fresh water into Galveston Bay, which increased the bay’s salinity.
     Lance Robinson, deputy director for the coastal fisheries division of Texas Parks and Wildlife, said Hurricane Ike in 2008, the Deep Water Horizon explosion in 2010 and overfishing have contributed to the declining oyster population from the Texas coast to Louisiana.
     “The fleet and the industry are overcapitalized,” Robinson added.
     Woody meanwhile noted that harvesting too many oysters – especially oysters under the legal limit – can prevent a reef from growing. Oyster reefs are built atop the carcasses of dead oysters. If the public reefs are overfished, and there are not enough oysters left to die, the reef cannot sustain itself, Woody said.
     Public oyster season is from November until the end of April. Woody said overfishing emptied the public reefs within two weeks of this year’s season.
     “There were 150 to 170 boats in east bay at the beginning of the season,” Woody said. “And in less than two weeks those reefs were decimated.”
     Robinson said Texas offers private oyster leases, but their primary purpose is not to support the oyster-fishing industry. They are meant to detour rogue oyster fishermen from harvesting potentially toxic oysters from waters close to shore.
     “Oysters are filter feeders, and the water close to shorelines can carry more harmful bacteria,” Robinson said. “Since oysters are eaten raw, consuming an oyster from that area could be potentially harmful.”
     Fishermen with private leases move oysters away from the shorelines and into their private leases, where the oysters purify themselves in cleaner water. The fisherman can then sell the purified oysters. Texas has not added to the waters it offers for private leases since the late 1980s because, Robinson said, the current number of leases is sufficient to meet the state’s goals of discouraging illegal oyster harvesting.
     Woody takes most of his harvest from his private leases. His frustration with what he views as state mismanagement of a natural resource pushed him to seek alternatives amid a dwindling oyster supply and rising oyster costs.
     Woody approached the Chambers-Liberty Counties Navigation District – formed in 1944 from two counties east of Houston – to see if he could lease land beneath the waters the district controlled.

     Woody’s oyster wholesaler is based in Chambers County, where Woody is also a justice of the peace.
     He negotiated with the navigation district’s board of commissioners for four years before signing the lease at an April 2014 meeting. The lease would last 30 years and cost $3 an acre after the third year; state leases typically cost $6 an acre, Woody said. He promised to pay the navigation district’s legal fees – part of the reason for the lower cost of the lease, he added – and he created a company to administer the lease, naming it Sustainable Texas Oyster Resource Management, or STORM.
     For Feldman’s clients in the lawsuit over that lease, however, that negotiation process and the meetings at which the lease was discussed were not advertised well enough to warn local oyster fishermen about Woody’s plans to harvest oysters in new waters.
     Under the Texas Open Meetings Act, matters of special interest to the public should be advertised in detail, and discussed in public session, before a board meets, Feldman said.
     “Given the public outcry after the lease became known,” Feldman said. “It’s obvious this was a matter of special interest.”
     Feldman said he obtained audio tapes of the meeting and meetings minutes from Wayne Dolcefino, a former investigative reporter with Houston’s ABC affiliate, KTRK. Feldman’s clients- all associated with Galveston oyster companies – hired Dolcefino, who said he had to file a court petition make navigation-board officials respond to his Freedom of Information Act requests for the navigation district’s public records.
     “First I was totally ignored,” Dolcefino said. “Then I got some records, and they told me there weren’t any more.”
     Feldman and Dolcefino claim to have been given hundreds of documents, and they both point to the April 2014 meeting in which the board approved Woody’s lease. The agenda for the meeting did not mention oysters or oyster harvesting, only a lease for submerged lands.
     “There’s no way anybody could have looked at that and concluded it was a lease for oyster fishing,” Feldman said.
     In his petition, Feldman claims to have an audio tape in which a navigation board commissioner said, “Now we get rich,” just after the April, 2014 vote to approve Woody’s lease. Feldman could not attribute that quote to a specific commissioner or anyone present at the meeting; navigation board commissioners declined to comment for this story.
     While oyster companies in Galveston have painted the lease as a land grab at state resources, Woody maintains that he did not try to conceal his intentions when meeting with the navigation board.
     In his office in Smith Pointe, Woody took out a thick binder labeled “STORM” and pulled papers from it, pointing to a 2010 navigation-board agenda that did mention oyster harvesting within his proposed lease.
     The relevant passages were highlighted in yellow.
     “Everything we’ve done, we’ve done above board,” Woody said. “We weren’t trying to hide anything. We were having meetings.”
     Woody said none of the plaintiffs in the civil suit attended the navigation-board meetings.
     Texas Parks and Wildlife has taken issue with Woody’s lease for a different reason: Robinson said the navigation district could not grant the lease because its authority extends only to providing navigation services and raw water. The only leases the navigation district can grant are for navigation projects, Robinson added.
     “State law is very clear,” Robinson said. “This was not a normal lease for a navigation district to give.”
     Seven private oyster leases and a number of public oyster beds already existed in the waters Woody leased. Texas Parks and Wildlife sent Woody a letter in July 2014, warning him it considered the lease invalid and that Woody should not treat it as “private property” by attempting to exclude other oyster fishermen.
     Woody said it was never his intention to restrict shrimping or fishing within the lease, and his goal was to harvest oysters or sublease his submerged lands for sustainable oyster harvesting unlike the oyster fishing he sees in Galveston Bay.
     “It’s a free for all on the public reefs,” he said.
     “Everybody’s too interested in lining their pockets rather than planning for the future.”
     Woody cannot use the submerged lands for oysters unless Texas Parks and Wildlife gives him permission. Because the department does not recognize the lease, that seems unlikely. Woody said he has submitted a bill to the Texas Legislature that would amend the Texas Parks and Wildlife code to specifically allow navigation districts to lease submerged lands for oyster harvesting.

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