Thursday, February 11, 2021

Texas oyster crimes are no joke and a symptom of broader problems

This blog has spent an inordinate amount of time over the years focused on Texas' array of oyster-related criminal offenses, to the point that Politifact once did a fact check on my claims. They found them "Mostly True," with the "mostly" caveat being that one source put the numbers even higher than I'd said!

Marc Levin, who recently left the Texas Public Policy Foundation to become general counsel at the new Council on Criminal Justice, first launched this meme as a way to critique overcriminalization, highlighting the fact that Texas has so many felony statutes on the books it's difficult even to count them.

Your correspondent played into the gag, wondering aloud how many crustacean-related crimes are sex offenses and counting the number of oyster-related felonies in "The Walrus and the Carpenter."

Over the years, however, Grits has come to realize Texas' "oyster crimes" aren't just a silly government foible to be mocked at conservative conferences. (TPPF for years held a panel at their biennial legislative conference highlighting "overcriminalization" and featuring this example.) Rather, they're illustrative of some of the core challenges involved in disentangling criminal law from regulating non-criminal behavior in a society organized around what Jonathan Simon has called "Governing through Crime."

Texas has so many oyster crimes on the books for two, fundamental reasons: Scorn for regulation and the environment. Harvesting native oysters is terrible for the latter and the Legislature prefers criminal law to the former.

Including misdemeanors, Texas has dozens of oyster-related crimes on the books, all because the state uses criminal law to regulate unwanted business practices that other states manage through non-criminal regulatory enforcement.

In most other coastal states, civil regulators enforce rules about oyster harvesting. In Texas, it's game wardens and prosecutors. This leads to a spotty patchwork of enforcement dependent on some random lawyer elected DA knowing and caring about the topic and/or being willing to ignore local donors who might object.

For years, the prosecutors' association scoffed at the oyster-crime depiction, insisting such cases were rarely prosecuted. An old college pal of mine who's written their law books for the last couple of decades said the same thing on Twitter when the oyster-crime meme arose this week. But if that was ever true, it's not any longer. 

Hurricane Harvey disrupted the unfettered harvesting of native oysters, requiring more robust state regulation for the industry to survive. Texas A&M Professor Joe Fox noted in 2019, “Due to overfishing, excessive freshwater inflow and loss of infrastructure mainly due to hurricanes, Texas oyster harvests have been trending downward and have experienced a 43% loss in the past three to four years.”

That's what's generating the push for greater enforcement. Without it, the industry could vanish. But prosecutors aren't regulators. Their job is to prosecute crimes, not regulate aquatic industries, even if the latter task de facto falls to them under Texas' absurdist system.

Even if you took these criminal laws off the books, state intervention would be needed for this industry to exist. Otherwise, overharvesting would wipe out the native oyster population in short order. In the 4-day sweep in December, game wardens restored 48,000 pounds of illegally harvested oysters to the bay. In a similar sweep in 2018 netting twice as many cases, "Some of the violators intercepted had cargo consisting of up to 35 percent undersized oysters."

So it's not that the criminal laws governing oyster harvesting are unnecessary. The government has a role to play here. But criminal statutes are a blunt instrument for regulating fishermen. That's the wrong tool for the job. 

To disentangle criminal law from shellfish regulation requires a big picture view that embraces property rights and responsibilities. Decriminalize, regulate, and let people who want to farm oysters grow their own in designated areas. Just letting rapacious private interests plunder a resource till it's gone makes no environmental, moral, nor economic sense.

Texas could wipe out most oyster-related criminal offenses if it 1) banned harvesting native oysters, 2) fostered a transition to (recently legalized) privately managed beds, then 3) regulated the industry under civil instead of criminal law. That'd be better for the environment and the industry long term, and take law enforcement mostly out of the equation.


Phelps said...

What about non-industry harvesting? As a citizen, I should be able to go out to public land and harvest a reasonable amount of shellfish, as people have been doing in America for literally millenia.

I agree that we are mixing two different situations. It's no reasonable for me, as a non-commercial harvester, to go out and come back with 220 pounds (the current limit) of oysters. It's also not reasonable to limit an oyster farmer with cultivated beds to the same limit.

Why not keep our current laws, drastically lower the limits (three or four dozen sounds far more reasonable) and then give an exemption for licensed, commercial harvesters drawing from cultivated beds?

Gritsforbreakfast said...

Sounds like the sort of nuance that could easily be handled by regulators instead of prosecutors.

Phelps said...

Sounds like if a regulator who doesn't have a Sworn Officer's privileges like a Game Warden has will be told to F- off and come back with a warrant, at which point the oysters will be sold off and I'll be scott free.

Gritsforbreakfast said...

I know, Phelps, you're smarter than all the states who've already successfully handled these matters so let's definitely defer to whatever off-the-cuff hypothetical you bring up to naysay reform. God knows it's not a consistent pattern or anything.

Alison Grinter said...

Game wardens are almost entirely exempt from warrant requirements.

Phelps said...

@Alison, That's my point.

@Grits, which states do you think DON'T use Game Wardens to enforce recreational oyster harvesting?

Anonymous said...

Likely all of them do, but they are enforcing laws (with criminal penalties) AND regulations (with civil penalties). Because in those states they have both.
Harvest too many oysters and the state can make it economically unviable by fining you more than they're worth.

Anonymous said...

It is my understanding that it is foreign fishing trollers that are harvesting our oyster beds, am I wrong?

Gritsforbreakfast said...

I'd not heard that, 3:39. The folks TPWD targeted seemed to be locals.

hayslaw said...

Not hard to incorporate TPW and game wardens into a civil regulatory scheme for oysters. In fact it would provide more precise tools for all.