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LEGAL ISSUES
Always Look a Gift Terrapin on the Plastron
Marguerite M. Whilden
The Terrapin Institute and Research Consortium, Inc, PO Box 51, Edgewater, Maryland 21037 USA [terrapininstitute@comcast.net]
“To keep every cog and wheel is the first precaution of
intelligent tinkering”, so thought the father of wildlife ecol-
ogy Aldo Leopold. In retrospect, the legislation adopted
by the 2006 Maryland General Assembly to preserve the
State’s iconic diamondback terrapin (Malaclemys terrapin)
may have had all the right legislative cogs and wheels. The
2007 legislative lobbying effort might have been one of
those situations requiring intelligent or at least experienced
Turtle and Tortoise Newsletter, Issue 11
28
tinkering. For the third consecutive year the Maryland State
legislature intervened in the management of the terrapin.
However, the terrapin legislation adopted in 2006 may have
been the better statute.
The 2007 terrapin legislation did in fact impose an in-
definite ban on commercial harvest, but the minimum
conservation measures crucial to sustaining wild terrapin
populations were removed from statute. The fate of the ter-
rapin resource rests with the regulatory agency which, for
all intents and purposes, has been stripped of its traditional
fishery management authority. The psychological ramifica-
tions of tinkering with traditional authority are difficult to
forecast, but history would suggest that benign neglect may
be a far more insidious exploitation of a natural resource.
Since the 2007 harvest ban was signed into law, the
regulatory agency has rescinded a proposal for additional
protective regulations and nothing is proposed to save the
terrapin from the rest of us. The diamondback is off the
market and out of the harvest basket, but not necessarily out
of the proverbial net. It’s still too early to tell, but it might
have been wiser to play the aces we were dealt in 2006 be-
fore leaping into another political frenzy.
Pre-2006 Terrapin Conservation
An assessment of Maryland’s terrapin statute and current
conservation efforts is incomplete without a quick review of
previous terrapin laws, Maryland’s legislative process, and
a few extraneous or serendipitous details.
The terrapin resource was once so valuable as to have
its own separate chapter in the State law; it was also de-
fined as a “fish” and remains classified as such in Maryland
statute. In the last 100 years, Maryland’s conservation law
has evolved and gradually assigned the bulk of interpreta-
tion and discretion to the regulatory level, i.e. the State’s
Department of Natural Resources, Fisheries Service. This
is an improvement over times when only the elected body
could make decisions in conservation. If regulatory agen-
cies have insufficient authority or are out of step with public
sentiment, the legislature may always step in, but only dur-
ing their annual 90 day convention. Such was the case with
terrapins. The State DNR was unable to protect the terrapin
resource sufficiently against increased commercial exploi-
tation so the State legislature intervened in 2005, 2006, and
2007.
Despite numerous scientific studies and peer-reviewed
literature documenting the impacts of by-catch mortality,
there were none investigating the extent or implications
of direct fishing mortality from the commercial terrapin
harvest. Previously, the science community had dealt
with the commercial harvest in the abstract and/or sug-
gested shifts in seasons and size limits. Up until 2006,
none had directly addressed the commercial terrapin har-
vests.
The popular media began issuing reports of an increas-
ing global demand for US turtles by 2000. Typically, with
other economically-important commercial species, science
or management agencies conduct “fishery independent” in-
vestigations which are used to document the validity of of-
ficial harvest reporting from the fishing industry. By 2001,
there was abundant anecdotal evidence indicating that
Maryland’s hallmark reptile was staring down the barrel of
infinite global demand. After a special funding request to
assess the terrapin population was denied by the Maryland
legislature, the Governor devised the Diamondback Terrapin
Task Force in 2001. Since no fishery independent data was
available or underway from any other independent source,
the primary recommendation of the Governor’s Task Force
in 2001 was an immediate moratorium in the commercial
terrapin fishery.
In 2003, preliminary “fishery-independent” data indi-
cated an increase in commercial harvests and significant
inconsistencies between the official terrapin harvest reports
compiled by the DNR and the terrapin purchases conducted
independently. These independent findings on the commer-
cial terrapin fishery were presented at the 2004 Diamond-
back Terrapin Workshop in a presentation entitled “Turtles
in the Midst”.
In response to the mounting anecdotal concerns, the
2005 Maryland General Assembly attempted to address the
developing terrapin crisis in a bill that directed the DNR to
adopt the recommendations of the 2001 Governor’s Dia-
mondback Terrapin Task Force Report. The legislative ef-
fort failed.
The 2006 Terrapin Legislation
Perhaps more than science, a front page article in the
January 22, 2006 issue of the Washington Post directly in-
fluenced on the Maryland General Assembly to intervene
again. In response to public concern, a harvest prohibition
bill was introduced in the 2006 legislative session. Although
the bill was modified by the bill sponsor to appease the De-
partment of Natural Resources, the amended bill turned out
to be a much more formidable law for terrapin conserva-
tion. In adopting the 2001 Governor’s Diamondback Terra-
pin Task Force Report, the 2006 legislation was sound and
retained the traditional authority of the fisheries agency.
Unfortunately, the terrapin legislation which was adopt-
ed in 2006 was entirely misinterpreted by the management
agency and underutilized by the conservation and science
communities. While the 2006 law was not the harvest pro-
hibition originally introduced, it was a goldmine for com-
prehensive, sustained conservation for the diamondback
terrapin, more than sufficient to end the harvest indefinitely
and hold the regulatory agencies accountable over the long
term.1
As mandated by the 2006 law, fisheries administrators
proposed amended terrapin regulations in May 2006. The
agency was expected to close the terrapin fishery via their
regulatory authority in advance of the scheduled harvest
1 Findings of an independent legal review by the law firm
of Wilmer Hale
December, 2007
29
season. As a means to offset the economic impact the Terra-
pin Institute offered an unprecedented compensation pack-
age to terrapin harvesters and buyers.2
When the regulations proposed in 2006 did not include
the harvest prohibition, the science community and other
conservation organizations were expected to object vehe-
mently on principle and reject the proposal. After all, there
was no debate over the futility of a commercial harvest
in terrapins, particularly in recent years in which harvests
increased five fold and the wild population in a long-term
study had dropped to a quarter of its former size. Further-
more, the species had collapsed once already during twenty
years of harvest pressure in the later days of the 20th cen-
tury3, providing sound historical reference and abundant
evidence.
By July of 2006, many terrapin advocates seemed to
acquiesce along traditional regulatory lines and Rituals of
Crises. The “science community” and others endorsed a
continued harvest in July of 2006, supported the agency’s
proposal to lower the minimum size limit for terrapins, and
sent another 10,000 terrapins off to market during the 2006
harvest season, August through October 2006. The DNR
press release issued August 2, 2006 included the following:
“The scientific community is pleased with these regulations
and feel they are an important step towards improved terra-
pin conservation and management,” said Associate Profes-
sor of Biological Sciences and a Terrapin Researcher. “We
applaud the efforts of DNR to address the concerns of the
2001 Diamondback Terrapin Task Force.” The endorse-
ment and applause was particularly baffling as only a few
months ago, March 2006, the same “science community”
had testified before a State legislative committee and pro-
vided compelling scientific evidence “Why we should ban
the commercial harvest of diamondback terrapins”4.
Unintended Consequences
Typically, the “unintended consequences” of manage-
ment decisions take years to manifest. However, in just a
few short months, miscalculations began to add up for ter-
rapins and other turtle species in Maryland. A November 1,
2006 article in the Baltimore Sun5 - Farm points way out
of turtle trap: Amid new curbs on catching turtles, Rodney
Lewis raises lots of his own – indicated that as a result of
the 2006 regulations “more people are getting into the busi-
ness, and that means more pressure on the turtles.”
According to the article, State agency records indicated
prior to the 2006 regulations that “Fewer than 10 water-
men in Maryland admitted catching terrapin.” However, in
the summer of 2006, “that number tripled to 32, when the
state imposed the new regulations and required a special
terrapin license.” The director of the State’s DNR fisher-
ies programs said the state never meant to stimulate more
terrapin harvesting but acknowledged they were aware of
the growing market for smaller turtles: “We have heard that
the taking of small terrapins is fostering a pet trade, and we
don’t want that.”
Despite its own records and anecdotal evidence advis-
ing against a continued commercial harvest of terrapins,
apparently the State applied sustainable yield concepts
typically used to establish “fishing mortality” in fish spe-
cies. Without baseline data, appropriate harvest data
and a limited entry on terrapin harvesters the manage-
ment strategy was doomed at inception. Terrapins are
not fish.
A few months later, the State’s official terrapin harvest
reports indicated that the amended regulations had in fact
facilitated a “twenty fold” increase in terrapin harvests as
reported in a February 7, 2007 article in the Baltimore Sun
- “Terrapin catch raises alarms: State considers ban on dia-
mondback trapping as harvest leaps twenty-fold”. Accord-
ing to the article “The regulatory effort “totally backfired”.
The terrapin expert who advised Maryland on the 2006
rules “thought [the new regulations] would essentially close
down the fishery.”
The problem is that the 2006 regulations were based on
traditional agency speculation and fisheries management
theory, not fundamental turtle conservation theory, com-
mercial market data or predictable harvesters’ behavior.
There were virtually no reliable science data available
to justify the scheme.
The new rules merely shifted the harvest pressure from
adult females to the male terrapin population and to all ju-
venile terrapins. To compensate, harvesters simply apply
more fishing pressure by setting more gear. The 2006 ter-
rapin regulations which lowered the size limit and concen-
trated the harvest season down from nine months to three
months, had essentially put the entire wild terrapin popula-
tion on sale for a limited time only. From a fundamental re-
tail perspective, Maryland’s 2006 terrapin regulations were
more a classic merchandizing mechanism to reduce stocks
on hand then a strategic conservation measure implemented
to preserve a wild species in decline.
2007 Terrapin Legislation
After the “unintended consequences” of 2006 regula-
tions were publicized, a reconstituted terrapin lobby drafted
new language and found a new legislative sponsor to intro-
duce another terrapin bill to the 2007 General Assembly.
DNR announced that a harvest moratorium was imminent
and promised to conserve the terrapin resource. The newly
elected governor announced his commitment to saving the
terrapin, but wanted to keep the agency’s traditional regula-
tory authority intact. The Terrapin Institute opted to sup-
port the new governor and urged the new terrapin lobby to
leave the 2001 Terrapin Task Force Recommendations in
2
Letter to the Governor
3 The Terrapin King, Chesapeake Bay Magazine, April
2005
4 Testimony
5 Baltimore Sun
Turtle and Tortoise Newsletter, Issue 11
30
the law. A much different terrapin law was approved in the
final hours of the 2007 legislative session.
Ideally, State legislation should be easy to interpret and
impartial. Unfortunately, the 2007 terrapin legislation may
be ambiguous, biased, and without sufficient consideration
to practical implementation, enforcement, or conservation.
In its adopted version, the 2007 terrapin legislation elimi-
nates commercial harvesters and specifically protects the
rights of scientists, collectors, and incidental catchers. Ev-
eryone is now entitled by law to collect up to three terrapins
from the wild even though we have no idea how many ter-
rapins remain in the wild.
The amended terrapin statute does not prohibit “the in-
cidental catch of diamondback terrapin, provided the dia-
mondback terrapin are returned immediately to the water”.
In this context the term “immediately” is confusing. Does
“immediately” mean as soon as the terrapin becomes “inci-
dental catch” or as soon as the catcher discovers the inciden-
tal catch? The last minute amendment to allow continued
terrapin farming does not seem to alarm the bill drafters,
although no one can explain what this means to the wild
resource.
The greatest disappointment or inexplicable tinkering in
the 2007 bill is the deletion of the specifics of the “2001
Governor’s Diamondback Terrapin Task Force”. The more
neutered and apparently confusing term “conservation” re-
places the specifics of the Task Force in the statute.
Conclusion
Before a packed State House which included two ter-
rapins from the National Aquarium collection, Governor
O’Malley signed the bill into law. Maybe the terrapin de-
scribes it best: judging from the front page photos, one of
the terrapins looks relieved while the other appears dazed
and confused. This is likely as good as it is going to get for
a long time, so we’ll make the best of it.
The commercial terrapin fishery is finally closed (but
could always be overturned in future legislative sessions)
and there may be an intra-agency struggle brewing over
which authority will eventually save the terrapin, the clas-
sic Fisheries Service or the Wildlife and Heritage Service.
Nevertheless, there is reason for hope with the new hand
we’ve been dealt.
In October of 2006, a vigilant and persistent DNR police
force achieved an enforcement hat-trick by confiscating and
repatriating over 200 hundred terrapins from an unlicensed
vendor which resulted in an unprecedented conviction and
hefty fine on judgment day. Although by-catch mortality,
destruction of nesting beaches, and poaching continues
and not all agency personnel are feeling the love, it looks
as though other turtle species in Maryland may be getting
some much needed protection. Note to the turtle advocacy,
management, and science communities: be careful what
you wish for, endeavor to understand every cog and wheel,
and think before tinker.
The Florida Fish and Wildlife Conservation Commis-
sion (FWC) at its 12 September meeting voted to uplist
the gopher tortoise, Gopherus polyphemus, as threatened
throughout its range in Florida. That is the good part, how-
ever. FWC did not revise the new management plan to
include proper methods or financing or relocation as the
primary conservation tool for the tortoise. This means that
current rules are still in effect. These regulations do not call
for recipient sites to meet any minimal standards; perma-
nent protection or management of the site or even develop-
ment in the future are not required for owners of these sites.
Meanwhile, efforts to find large landowners willing to take
tortoises and relocate them based on what is effective in
accordance with current research are hampered because the
financing of perpetual management and conservation ease-
ments is still up in the air. The FWC has agreed to come
back to the Commission with solutions to these and other
key components of the plan by the first quarter of 2008.
Meanwhile, FWC stands to lose 15% of its budget. If left
as is, the management plan and budget will in fact make
this management plan a blueprint for the extinction of the
gopher tortoise in Florida.
The Gopher Tortoise Conservation Initiative (GTCI) has
provided an economic plan that if adopted could possibly
pay for the entire conservation program for gopher tortoises,
and possibly pay for the management of over 87,000 acres
of tortoise habitat in state conservation lands. Some of these
lands are just a few years away from being so neglected that
they will no longer be a suitable habitat for tortoises.
FWC has promised to address the major issues related to
relocation, such as single-family-home development where
tortoises have essentially no protection. At least 70,000 tor-
toises each year are being ignored on 146,000 units/year
statewide, and a wide variety of other issues are key to the
success or failure of this effort.
“If conservation is to be successful in perpetuity, it must
be embraced by the community culture, be useful to the
people and be economically self sustainable.”
Gopher Tortoise Uplisted to Extinction?
Ray Ashton
Gopher Tortoise Conservation Initiative, Ashton Biodiversity Research & Preservation Institute, Inc, 14260-331 West Newberry Road,
Newberry, Florida 32669 USA [www.ashtonbiodiversity.org; tortfarm2@aol.com]