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Legally speaking, a clam is different from a deer, being slower afoot — a hard lesson learned recently by Tacoma, Wash., general practitioner Stephen G. Johnson. Johnson’s client, Timothy M. Longshore, was charged with stealing 340 pounds of clams from a natural clam bed at 4 a.m. on Oct. 6, 1997, on a private beach near Puget Sound. Johnson argued that the clams belonged to no one because they were wildlife. Clams in a natural bed are wild animals, or ferae naturae, not “reduced to possession,” he argued. For example, Johnson said, if a hunter tracked a deer onto private property and then shot it, the property owner would have no right to claim that it was his deer. But while a deer roams, a clam does not. And the sedentary way of the mollusk doomed Johnson’s client. Clams — which pretty much stay put, aside from an occasional skitter, according to a mollusk expert — become part of private property when they take up residence there, the Washington State Supreme Court ruled. Therefore, taking the shellfish from private land constitutes theft, the court unanimously held, refusing to reverse the felony conviction. “In this respect clams differ from fish, game birds and game animals in their wild or natural state,” the court said. State v. Longshore, No. 68531-2 (Aug. 17, 2000). The court said that the defense wasn’t helped by the fact that the Washington legislature had exempted shellfish from its definition of wildlife. Professor Don E. Hemmes, chairman of the biology department at the University of Hawaii, confirmed about clams, “They have very little mobility.” Although embryonic clams ride the currents, as grown-ups they are likelier to scoot down into the tidewater mud, he said. The prosecutor, David B. St. Pierre, assistant city attorney in Bremerton, Wash., said he compared clams to tree seeds: if a seed blows onto private property and takes root, the tree belongs to the landowner. “This was a little, tiny Theft II case that determined a major issue in property law in Washington,” said St. Pierre. It squarely addressed for the first time whether a person steals when taking wild shellfish from private land, he said. “It’s a very touchy political subject” in Washington, said Johnson, the defender. Over the years, he said, native tribes have rankled property owners by winning the right to harvest native salmon and shellfish. Although the defendant is a member of the Skokomish tribe, he did not assert tribal harvesting rights in his defense. He had served his eight-month sentence by the time his first appeal was decided.

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