(Nov. 28, 2014) Lawyers are pressing the issue of exactly what kind of lease Don Marsh applied for and was granted in their push to disallow his commercial aquaculture farm off South Point.
Marsh and the Department of Natural Resources maintain Marsh has a water column lease, while attorneys Hugh Cropper and Cynthia Young, who represent various neighbor groups, maintain that Marsh has a submerged land lease in spirit, if not letter, of the law. Each side has won one case and lost another. The next round will be heard in the court of special appeals sometime in early February.
A water column lease in aquaculture is for cages surrounded by some degree of water on all sides. It gets murky where, well, the water gets murky. Silt, sand, mud and muck are hard to legally quantify and the structure, type and markings on cages all have to be taken into account.
Which they were. At length.
Administrative Law Judge Richard O’Connor in Salisbury ruled that Marsh’s description of his intended activities better fit the definition of a submerged land lease than water column and ruled in favor of the residents and neighbors. Circuit Court Judge William Mumford in Anne Arundel County found O’Connor exceeded his authority by overturning Marsh and the Department of Natural Resources and restored the lease.
A submerged land lease is for the ground under the water and gets murky in the same way a water column lease does. However, this lease tickles the Public Trust Doctrine.
The doctrine emerged as a common-law principle in that it was neither proposed nor endorsed by the legislative or executive branches of government, but by a number of legal precedents.
According to the doctrine, the state holds the navigable waterways and the submerged lands below them in trust for all the citizens. Now, if the citizens can prove Marsh’s project violates the public trust by encumbering navigation for example, the court will have the means to vacate the lease.
Both sides re apparently focusing on this stage of trials and haven’t publicly stated their intentions following the outcome of this appeal.a