Tiverton oyster farm will be first case for new CRMC hearing officer

Appointing an attorney to hear disputed applications was meant to help speed up the review process for the understaffed Rhode Island Coastal Resources Management Council (CRMC).

But not in the case of a contested oyster farm proposed for Tiverton’s Sapowet Cove. The council’s 7-1 decision Tuesday to refer the project application to hearing officer Mark Krieger is adding even more time to the four-year wait on the application. 

The move was met with grumbles by some among the standing room-only crowd of residents and fishermen who came to the hearing at the Rhode Island Department of Administration building in Providence to voice their concerns with the project – only to leave without getting to say their piece. Also less-than-pleased: John and Patrick Bowen, the brothers from Little Compton who first pitched the 0.9-acre oyster farm in late 2019, and hoped to get their long-awaited decision Tuesday.

“I am a little disappointed,” said John Bowen in an interview after the vote. “I think it’s a blocking move.”

Council member Don Gomez, who cast the sole vote against the referral, also said he didn’t want to delay a decision any longer.

But as CRMC attorney Anthony DeSisto, pointed out, the council’s rules explicitly call for any contested applications to first be reviewed by its hearing officer. The majority of the council agreed with him after a brief discussion about what defines a “contested” case.

A state law passed in 1990 called for the governor to appoint two hearing officers to the coastal agency to hear and adjudicate on contested cases, yet the positions went unfilled for the last 33 years.

That changed in June, when under pressure from coastal advocates and lawmakers, Gov. Dan McKee appointed Krieger, a private practice attorney from Lincoln, to fill the spot. Krieger was confirmed by the Senate on the final day of the 2023 legislative session.

Aquaculture applications are down. The battle for Tiverton’s Sapowet Cove might be why

The Sapowet Cove oyster farm will be Krieger’s first major case, which he will review through a quasi-judicial process that involves questioning and cross-examining the applicant, objectors and expert witnesses. After holding a hearing and reviewing written documents, he will make a recommendation to the council, which will then vote in a separate meeting.

The hearing officer process is intended to streamline hearings that are often lengthy and laden with conflicting accounts and evidence. The Tiverton case has no shortage of information and documentation, with scores of letters, emails, photographs and meeting transcripts accrued over the course of the four-year review.

Much of the paper pile comes from the opponents who insist that putting wade-in oyster cages just a few hundred feet from the shoreline will get in the way of people using the popular fishing, boating and recreational area. Opponents include waterfront residents, fishermen, elected officials and even the state’s aquaculture association, all led by seasonal Tiverton resident Ken Mendez. 

Mendez, who owns a house a half-mile from the site of the proposed oyster farm, previously filed his formal objection to the application with the CRMC, and sent countless emails to the various agencies that reviewed the application to express his concerns. He has also helped organize opponents through community events. 

Unlike others who came to speak against the project Tuesday, Mendez was not upset with the delay in a decision.

“I believe in transparency and the truth,” he said. “If this process gets us to the end result of the truth, I am all for it.”

Mendez, of course, wants that end result to be a “no” to the proposal, while the Bowens hope for the opposite. The two sides disagree over how much the cove is used for fishing and recreation – or not – and each insists they have the facts to back up their viewpoint.

Whose reality is right will be, at least partly, the responsibility of Krieger as the hearing officer to determine, though the council can ultimately vote however it wants.

There’s no date yet for when the hearing will take place. But the Bowen brothers say they are willing to wait.

“We’re like a barnacle,” Patrick Bowen said. “We stay in one place, and we are tough to move.”

The CRMC has two vacant seats.