LEGAL ISSUES Always Look a Gift Terrapin on the Plastron

“To keep every cog and wheel is the first precaution of intelligent tinkering”, so thought the father of wildlife ecology Aldo Leopold. In retrospect, the legislation adopted by the 2006 Maryland General Assembly to preserve the State’s iconic diamondback terrapin (Malaclemy's 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 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.
About Terrapin Institute

The Terrapin Institute began in 1998 as a consortium of concerned citizens, scientists, resource managers, and educators dedicated to the understanding, persistence, and recovery of Diamondback Terrapins and other turtles through effective management, thorough research, and public outreach. We work to protect an abundance of adult turtle populations, preserve nesting and forage habitat, and improve recruitment. In return the terrapin has become the perfect metaphor for natural resource stewardship and public engagement; the face of estuarine restoration, and a gateway to the many wonders of our rich tidewater heritage.
Terrapin harvest conserve legislation state population
About Terrapin Institute

Terrapin harvest conserve legislation state population
<p>December, 2007
27
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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]
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