For decades, Florida blamed declining oyster harvests on the State of Georgia. And, for decades, Florida’s elected officials convinced the public they were not at fault. These theories were rejected, in total, by the United States Supreme Court, last month. And, Florida can no longer avoid its own responsibility for the damage caused to the famous Florida “colossal” oyster industry.
On April 1, 2021, a unanimous United States Supreme Court found that Florida failed to prove that Georgia’s alleged overconsumption of the upstream rivers leading into the Apalachicola Bay caused harm to Florida’s oyster fisheries or Florida’s wildlife and plant life. The Opinion, written by Justice Amy Coney Barrett, adopted the findings of Special Magistrate Judge Paul Kelly who reviewed the evidence from five weeks of trial, 18 months of discovery, oral argument and numerous legal briefs. While the court found that Florida had failed to prove that Georgia’s alleged overconsumption of the upstream tributary waters contributed to the collapse of Florida’s oyster industry, the court did caution Georgia that it had “an obligation to make reasonable use of basin waters in order to help conserve that increasingly scarce resource.” But in her ruling, Justice Barrett adopted findings which faulted Florida’s own conduct in the collapse of Florida’s largest oyster habitat. Specifically, the Court found that Florida was to blame because Florida failed to limit harvesting and failed to re-shell the oyster beds.
Apalachicola Bay is a 208-square-mile shallow estuary located along the Big Bend region of the Florida Panhandle. Apalachicola Bay is in the northeast Gulf of Mexico and is protected from the Gulf of Mexico by narrow barrier islands. Apalachicola Bay has historically been the primary source for oyster harvesting in Florida.
Apalachicola Bay, Nov. 6, 2019Credit: Richard Dellinger
Apalachicola Bay is fed by freshwater through streams that originate in Georgia and Alabama. Freshwater is fed into Apalachicola Bay through the Apalachicola River. In turn, the Apalachicola River is fed by a freshwater river system known as the Apalachicola-Chattahoochee-Flint Basin (“ACF Basin”). The ACF Basin spans more than 20,000 square miles in Georgia, Florida and Alabama. [see map]
The ACF Basin
Credit: Bosman Martin, ResearchGate.net
The ACF Basin is compromised of the Chattahoochee River and the Flint River. These rivers originate in North Georgia and supply water to Georgia before flowing into Apalachicola Bay. The Chattahoochee River provides water supply to the Atlanta area. The Flint River provides water for agricultural irrigation in southwest Georgia. The flow of water in the ACF basin is regulated through a series of reservoirs and dams constructed and maintained by the US Army Corps of Engineers.
History of Florida Oyster Production
Oysters have been harvested from Apalachicola Bay since the area was first inhabited by the native Apalachicola people, a part of the Muskogean tribe of Florida. In mid-1850, Apalachicola Bay oysters were commercially harvested and sold throughout the United States. In 1850, the oysters were packed in barrels and shipped aboard steamers to markets all across the United States. With the introduction of pasteurization, in 1885, the market grew exponentially. By 1973, the oyster industry was worth $1.35 million to the State of Florida and 87% of Florida’s oysters came from the Apalachicola Bay. By 2010, Florida’s oyster industry was valued at approximately $10,000,000 and Florida provided 10 - 15% of the nation’s oyster supply. Ninety percent of the oysters produced in Florida come from Apalachicola Bay. In 2010, there were 1,200 licensed oyster harvesters and 25 oyster processing houses in the Apalachicola area. And, in 2010 around 3,000,000 pounds of oysters were harvested from Apalachicola Bay.
Florida's Colossal OystersCredit: CC0 Public Domanhttps://phys.org/news/2019-08-florida-oysters-apalachicola-cedar-key.html
On April 20, 2010, the Deepwater Horizon oil well spilled 4.9 million barrels of oil into the Gulf of Mexico. The spill lasted from April 2010 through September 19, 2010 and spread up to 68,000 square miles. At the time of the spill, officials in Florida were concerned that the spill would destroy the oysters in Apalachicola Bay. As a result, officials in Florida loosened the restrictions on harvesting of oysters from the Apalachicola Bay. This led to extensive oyster harvesting in the years 2011 and 2012. In the lawsuit, a marine ecologist testified that the average densities in the most heavily harvested oyster beds dropped 78% in the 2011 and 2012 time frame. At the same time, that same ecologist noted that the mean densities in other oyster beds that were not as heavily harvested had increased 3 – 13% during the same time frame.
Ultimately, the fear of damage to the oyster beds from the oil spill was, according to Justice Barrett, “never realized”. But, the damage from overharvesting was done. The oyster industry in Apalachicola Bay collapsed in 2013.
The Court Faults Florida for the Failure of Its Oyster Industry
A unanimous United States Supreme Court found on April 1, 2021, that the collapse of Florida’s oyster industry was a result of overharvesting and the failure to replenish oyster habitat. For centuries, Florida’s oyster harvesters replaced harvested oyster shells with clean oyster shells—a process called “reshelling”. These clean oyster shells would serve as habitat for young oysters to grow. In the years before the collapse of the Florida oyster industry, oysters were harvested at a record rate and reshelled at a record low rate. In the Opinion, Justice Barrett noted that the experts in the trial recommended that 200,000 acres of oyster beds be reshelled per year. According to the Opinion, those same experts testified that only a total of 100,000 acres had been reshelled in the previous 10 years. As a result of this inadequate re-shelling, young oysters did not grow on the overly burdened oyster bed.
In their arguments to the Court, Florida claimed that the reasons why the Apalachicola Bay fishery collapsed was because of Georgia’s overuse of the ACF River Basin. Florida argued that Georgia’s unreasonable water consumption caused the freshwater flows into the Apalachicola Bay to be reduced. And Florida claimed that the reduction in freshwater flows caused the salinity of the Apalachicola Bay to increase. Florida also argued that this increased salinity attracted saltwater predators, like rock snails, and disease to the oyster population. After reviewing the evidence, Justice Amy Coney Barrett and a unanimous Supreme Court found that Florida failed to prove these theories. The Court noted that the experts introduced by the State of Florida undermined the argument that the salinity had increased and that predators had caused the collapse of the industry. Justice Barrett and the unanimous Supreme Court stated, “We do not think that Florida’s evidence of high salinity and predation overcomes the data and modeling of its own experts which show that Georgia’s consumption had little or no impact on Apalachicola Bay’s oyster population.” Instead of faulting alleged overconsumption, the court focused heavily on the expert’s evidence relating to overharvesting and failing to replenish the habitat. In addition, Justice Barrett noted that there was some evidence that indicated that an unprecedented series of multiyear droughts and changes in seasonal rainfall patterns may have played a significant role in the collapse of the oyster habitat.
As a last point in the Opinion, Justice Barrett dealt with Florida’s argument that alleged overconsumption of the river harmed the wildlife and the plant life in the Apalachicola Bay and its ecosystem. Specifically, Florida argued that Georgia had disconnected the tributaries, swamps and sloughs from the Apalachicola river causing harm to the river wildlife and plant life. In the Opinion, Justice Barrett noted that there was “no evidence that any river species suffered injury from Georgia’s alleged overconsumption.” Rather, the Court noted that Florida’s ecology expert “provided no data showing that the overall population of any river species has declined in recent years.”
Ultimately, the Court faulted the collapse of Apalachicola’s oyster population on overharvesting and failing to replenish the habitat.
Plans for the Future of Florida Oysters
While this dispute was ongoing, the Florida Fish & Wildlife Conservation Commission took unprecedented actions to conserve the existing oyster beds to allow for the restoration and recovery of oysters in the Apalachicola Bay system. In 2020, the Florida Fish & Wildlife Commission unanimously voted to shut down the Apalachicola Bay oyster fishery for up to five (5) years. The moratorium is meant to give the oyster reefs time to regenerate. At its peak, the annual oyster harvest was up to 3,000,000 pounds but had dwindled to 21,000 pounds immediately prior to imposition of the moratorium. With the moratorium in place, the State of Florida can only hope that stakeholders will approach the oyster industry in a more responsible manner.
Florida’s Excuses Do Not Hold Water
For years, Florida blamed the devastating collapse of its oyster industry on the State of Georgia. Instead of addressing the actual cause of the problem, Florida deflected the blame and ignored the problem. Florida must now undertake the difficult task of rebuilding its unique and valuable oyster industry.
Instead of placing blame on Georgia’s consumption of upstream waters, stakeholders in the oyster industry should focus on replenishing their reefs. The Supreme Court opinion makes it clear that this must include reshelling of the oyster beds and limiting the annual harvest. It is unfortunate that Florida’s irresponsible estuary management led to this collapse and current moratorium.
Florida’s oysters are known around the world for being delicious and “colossal”. And, Florida is known for is picturesque waterways, bays, inlets and estuaries. The water resources in Florida are too valuable to allow this type of mismanagement. With proper management and responsible farming, the author hopes to see the Apalachicola Bay recover, quickly.
The author, Richard S. Dellinger, is a Litigation Section Leader with the law firm of Lowndes, Drosdick, Doster, Kantor & Reed, PA in Orlando, Florida. Recently, the author participated in a long civil trial in the city of Apalachicola. The litigation team ate a lot of oysters during the hearings and the trial. To our knowledge, none were harvested from the Bay. And nearly all of the oyster processing facilities were shuttered.
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