From Commonwealth v. One (1) Check in the Amount of $480.00 for 1,600 Pieces of Wild Oysters (Crassostrea Virginica), decided Friday by Massachusetts Appeals Court Justice Joseph Ditkoff, joined by Justices Kenneth Desmond Jr. and John Englander:
This case involves the civil forfeiture of wild oysters …. The fisherman and claimant, Cheenulka Pocknett, holds a valid commercial shellfishing permit issued by the Division of Marine Fisheries (DMF). He is also a member of the Mashpee Wampanoag Tribe and, as such, has certain rights to fish for sustenance.
On Wednesday, December 4, 2019, Pocknett and a friend took a large number of wild oysters from Green Pond in Falmouth. Green Pond is closed to commercial fishing on Wednesdays (as well as Sundays, Mondays, and Fridays). See Chapter 275, Article II, § 15(D) of the Code of Falmouth. See also [Mass. Gen. Laws]. c. 130, § 52, par. 1 (authorizing municipalities to regulate shellfish fisheries). {The town of Falmouth created the Green Pond oyster fishery through aquaculture, and the restrictions are presumably to prevent overfishing.}
Pocknett kept some oysters for personal consumption; the Commonwealth took no action regarding those oysters and appears to recognize Pocknett's right to take oysters for personal consumption. Pocknett placed 1,600 oysters in containers and affixed the containers with "DMF-required shellfish tags with [his] name[ ], [his] DMF issued permit number, as well as the date, time and location of the harvest." He then sold those oysters to Big Rock Oysters in Harwich, a licensed wholesale shellfish dealer.
