You say 'oyster,' I say 'erster'
Conflicts in the oyster fishery
Archived article from Dec 11, 1998
By Douglas Frank
Oystering in New Jersey has been big business for several centuries, but while producing a good food product, the industry has had more than its share of infighting.
A new book by Bonnie McCay, professor of anthropology and ecology at Cook College, explores a long-running conflict between the free right to fish, on the one hand, and the right of private property, on the other, that has been played out in the bays and rivers of New Jersey.
The book, "Oyster Wars and the Public Trust: Property, Law and Ecology in New Jersey History" (University of Arizona Press, Tucson), is a historical and anthropological look at the legislation of property rights in America. The book focuses on early court cases defining the public's right to use and enjoy its environment.
McCay discusses the common-law principles that allowed oyster fishermen, or "tongers," to harvest natural shellfish grounds while also permitting oyster farmers, or planters, to lay private claims to transplanted oyster beds in areas where oysters did not naturally grow.
Over the last two centuries various conflicts arose in New Jersey waters in which fishermen employed poaching, armed threats and even piracy to protect their stake in natural oyster beds. At the same time, oyster planters engineered confrontations of their own to generate test cases to protect their interests in court.
At the turn of the century, these disagreements over the use of the state's riparian grants for oystering escalated to armed conflict and arrests -- first in the 1893-94 "war" on the Delaware Bay, then in the 1907 "violent clash" on the Mullica River.
Ironically, the rulings that arose from such conflicts have not been entirely effective in resolving the dispute between planters and tongers, and the laws remain in a state of creative flux, says McCay. The implications, moreover, not only relate to the oyster industry but extend to clamming, many other kinds of fishing and hunting, and access to public lands.
The oyster conflicts gave rise to the "public trust doctrine" in American law, which affirms that people have common rights over certain waters and lands, and the state legislatures hold them in trust for the people.
Despite almost succumbing to "incredible inroads in the name of industrialization and progress," the doctrine has remained alive, McCay says. In fact, New Jersey's courts employed the doctrine in 1970 to support public rights of access to the state's beaches.
In this century, the struggle between the public domain and private property in the oyster industry, unfortunately, has been exacerbated by the onset of natural diseases such as Dermo and MSX and by man-made habitat encroachment and pollution, all of which have been decimating both the common and the private stocks of oysters.
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