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Nonnative Oysters in the Chesapeake Bay
owned in trust by the states. This trust means that navigable waters, lands beneath those waters, and living resources within those waters are owned by the state for the benefit of its residents (Macinko, 1993; McCay, 1998). Recognition of the public trust doctrine can be traced to Martin v. Waddell’s Lessee, 41 U.S. 367 (1842), a case involving oysters in New Jersey. In Illinois Central R.R. Co. v. Illinois, 146 U.S. (1892), the U.S. Supreme Court found that:
The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and the soils under them, so as to leave them entirely under the use and control of private parties than it can abdicate its police powers in the administration of government and the preservation of the peace.
Although this and related decisions have limited the conveyance of submerged lands, state courts differ in their application of the public trust doctrine and thus in the conditions under which submerged lands can be conveyed or leased and introduction, cultivation, and harvest of living resources allowed (Ajuzie and Altobello, 1997; Power, 1970).
Virginia has enacted a state statute that explicitly refers to the introduction of some nonnative aquatic and marine species. Virginia Code Section 28.2-825 provides:
A. It shall be unlawful for any person to import any fish, shellfish or crustacea into the Commonwealth with the intent of placing such fish, shellfish or crustacea into the waters of the Commonwealth unless one of the following conditions exists:
1. The fish, shellfish or crustacea are coming from within the continental United States from a state or waters which are on the Marine Resources Commission’s list of approved states and waters, and are species which are on the Marine Resources Commission’s list of approved species; or
2. The person has notified the Commissioner of Marine Resources of such intent and has received written permission from the Commissioner of Marine Resources.
Virginia’s administrative regulations also address the introduction of species into the state’s waters. Along with incorporating the provisions of Section 29.3-825 of the Virginia Code, state regulations provide that certain listed species can lawfully be placed into waters of the Commonwealth. See Chapter 754, Section 10, of the Virginia administrative regula-