Nelson v. Mobile Bay Seafood Union

• Decision Date: 18 August 1955
• Docket Number: 1 Div. 607
• Citation: 263 Ala. 195,82 So.2d 181
• Parties: John R. NELSON et al. v. MOBILE BAY SEAFOOD UNION et al.
• Court: Alabama Supreme Court

Page 181

82 So.2d 181

263 Ala. 195

John R. NELSON et al. v. MOBILE BAY SEAFOOD UNION et al.

1 Div. 607.

Supreme Court of Alabama.

Aug. 18, 1955.

Howell & Johnston, Mobile, for appellants Nelson.

John Patterson, Atty. Gen., and A. J. Harris, Asst. Atty. Gen., for appellant Department of Conservation.

M. A. Marsal, Mobile, for appellees.

MERRILL, Justice.

This is an appeal from a decree of the Circuit Court of Mobile County, in Equity, which granted a permanent injunction against the original respondents, John R. Nelson and John A. Nelson, enjoining them from further dredging for seed oysters from a public reef located in Mobile Bay called White House Reef. Appellees (complainants below) are a group of oystermen residing in the vicinity of Mobile Bay. Appellants consist of the original respondents, who are permittees of the Director of the Alabama Department of Conservation, and the Director of the Department of Conservation, as Intervenor. As hereinafter referred to 'permittees' will have reference to the original respondents and 'the director' will have reference to the Intervenor.

On April 24, 1954, the permittees were issued a license by the director authorizing them to take seed oysters for replanting purposes from a designated portion of White House Reef by means of an oyster dredge. They were so engaged in dredging for seed oysters when appellees filed for and the court granted a temporary injunction prohibiting further dredging on the oyster reefs in Mobile County. Permittees and the director filed a motion to dissolve said injunction on the 14th day of May. On the 21st of May appellees filed an amendment to their original petition whereupon the appellants filed a motion to strike the amendment. This motion was denied. On May 22 the court denied appellant's motion to dissolve the injunction and on the same date issued the permanent injunction from which this appeal is prosecuted.

The evidence adduced, which was heard ore tenus by the judge, was conflicting. Appellants sought to prove that dredging in the manner done and under the supervision furnished was not harmful to the oysters or oyster reefs. Appellees offered no substantial testimony tending to rebut the allegation and proof of appellants that the dredging operation had been conducted under the continuous supervision of employees of the Department of Conservation and that permittees had at all times strictly complied with the terms and conditions embodied in the permit issued by the director.

Appellants called four expert witnesses, the Scientific Advisor to the Mississippi Seafood Commission; a marine biologist employed by the United States Department of the Interior, Fish and Wildlife Service Branch of Fishery Biology; a research biologist with Texas A&M College, and the marine biologist employed by the Seafoods Division, Alabama Department of Conservation. These experts, shown to have personal knowledge of the oyster reef upon which these dredging operations had been conducted, testified that the permit issued by the director provided such rules and regulations as would protect the reef and the oysters thereon. These same expert witnesses testified that they considered it practical and advisable to dredge oysters from the White House Reef for replanting purposes. They further testified that results of tests made on the reef both during the dredging operations and after the cessation thereof disclosed that no harm had been done to the oyster reef. Appellants also adduced evidence to the effect that because of adverse weather conditions generally prevailing on the portion of White House Reef allowed to be dredged and because of the depth of the water on the reef, tonging for oysters was not a practical method of taking oysters therefrom.

Witnesses for the appellees consisted primarily of experienced oystermen, men who had earned all or part of their livelihood from oyster fishing. The substance of their testimony was to the effect that the taking of oysters by use of an oyster dredge destroys the oyster reef and causes death to the oysters; that at the time of the dredging here in question the oysters were spawning and as a result were in a weakened condition and easily killed; that a major portion of all oysters taken or harvested in Mobile County come from the White House Reef; that oysters may satisfactorily and practically be taken from said reef by use of tongs which cause no harm to the reefs or oysters; that prior dredging operations on White House Reef caused great harm to the reef and oysters; that the White House Reef is a mother reef which furnishes spawn to smaller reefs in its vicinity; that destruction of the mother reef results in lack of sufficient spawn to other reefs; and that the dredging operations conducted by permittees was causing destruction of reef and oysters.

Since, as before stated, the evidence supports a finding that permittees were acting within the limits of and under the authority conferred upon them by the director, our determination here resolves itself to the question whether the director could validly confer such authority. If it be determined that the issuance of the permit to permittees was a valid exercise of authority by the director, it must follow that the permittees should not have been enjoined.

There are several sections of our code which pertain to the powers, duties, etc., of the Department of Conservation and the Director thereof in regard to seafoods. Some of the sections, as applicable here, are as follows:

Title 8, § 4, Code of Alabama, 1940, provides:

'Jurisdiction and authority over seafoods, etc. The department of conservation shall have full jurisdiction and control of all sea foods existing or living in the waters of Alabama, and of all public and natural oyster reefs and oyster bottoms of the State of Alabama, and it shall ordain, promulgate and enforce all rules, regulations and orders deemed by it to be necessary for the protection, propagation or conservation of same; the department may by order duly made and published prescribe the manner of taking or catching, the time when, and designate the places from which sea foods may or may not be taken or caught, during certain periods of the year, or entirely, as it may deem to be for the best interest of the sea food industry. It shall have full authority to prohibit the catching or taking of oysters from reefs designated by it by order duly made and promulgated during the entire open season or any part thereof and may open and close said reefs or portions thereof to tonging or dredging, or both, and at any time deemed by it to be to the best interest of the public welfare. It shall receive and audit the accounts of oysters bought and caught of all canners and dealers, and the accounts of all inspectors, employees and members of said department, and of all expenses incident to carrying into effect this title, and shall see that all privilege taxes and license fees are paid, that the inspectors and other officers and employees faithfully discharge their duties, and that all provisions of this title are properly complied with and enforced, and the director shall hear the complaints of any person aggrieved by the action of any officer. It shall have authority to cooperate with the commissioner of the bureau of fisheries of the department of commerce of the United States government in the carrying out of the provisions of any act of congress for the sale, distribution or propagation of all sea foods and the extension of the producing areas thereof. It shall have authority to make rules and regulations requiring all catchers, factories, purchasers, dealers or any persons dealing in shrimp and oysters to make reports to the department,...