County Commissioners v. Claggett

EYLER, J. This case concerns the competing interests of wild waterfowl hunters and marina owners in Kent County. The question presented is the preemption, vel non, by state law of a Kent County ordinance that, as amended, allows certain holders of group boat mooring permits, for two months of the open season for hunting wild waterfowl, to moor vessels in waters where riparian land owners have licenses to maintain and use blind sites. In a declaratory judgment action brought by Herschell B. Claggett, the appellee, against the Kent County Commissioners (“Commissioners”), one of the appellants, the Circuit Court for Kent County ruled that the Kent County amended ⁷⁶ ordinance in question is preempted by implication by provisions of the state wild waterfowl hunting laws, set forth in Title 10 (“Wildlife”) of the Natural Resources Article, giving riparian landowners the right to license their shorelines for blind sites; and by conflict with provisions of the state wild waterfowl hunting laws and provisions of the State Boat Act, set forth in Subtitle 7 of Title 8 (“Waters”) of the Natural Resources Article, and regulations adopted thereunder. That decision has been appealed to this Court by the Commissioners and by Worton Creek Marina, LLC (“WCM”) and Lank-ford Bay Marina, Inc. (“LBM”) (collectively, “the Marina Appellants”), which intervened as defendants below.

We agree with the circuit court that the Kent County ordinance, as amended, is preempted by conflict with the Maryland State Boat Act and its regulations and also is preempted by conflict with the state wild waterfowl hunting laws. Accordingly, we shall affirm the court’s judgment. FACTS AND PROCEEDINGS On March 30, 2000, Claggett purchased a 340-acre waterfront farm on Worton Creek, in Kent County. The farm has 4,000 feet of shoreline.

Pursuant to Md.Code (2000 RepLVol.), sections 10-607 to 10-609 of the Natural Resources Article (“NR”), Claggett applied to the Department of Natural Resources (“DNR”) and obtained a license for his shoreline to establish offshore stationary blinds and blind sites for hunting wild waterfowl, for all waterfowl hunting seasons. 1 WCM is located directly across Worton Creek from Clag-gett’s farm. Pursuant to Article 68 of the Code of Public Local Laws of Kent County (1994)(“KCC”), entitled “Boats and Boating,” WCM obtained a permit from the Kent County ⁷⁷ Public Landings and Facilities Board (“Board”) 2 to maintain 54 commercial boat moorings outside its “extended property line” in Worton Creek and inside Claggett’s “extended property line” in Worton Creek. 3 Some of WCM’s boat moorings are within 100 feet of Claggett’s shoreline. According to Claggett, the boats that occupy WCM’s moorings inside his extended property line box in his offshore stationary blinds and blind sites, making them unusable. Under KCC section 68-7, a permit is required for any person (which includes a marina, see KCC section 68-1) to “place, construct or erect a mooring.” KCC section 68-9(A) sets forth what are “permitted moorings.” Ordinarily, permitted moorings for yachts and pleasure boats must be within “the extended property lines of the M-Marine Zone property.” KCC section 68-9(A)(3).

Exceptions to this requirement appear in KCC section 68-9(B), however, and include the following “grandfathering” provision for group moorings: Group moorings used in connection with permitted marina facilities and group moorings for yacht clubs, community associations and recreation camps [are permitted moorings], subject to the general conditions of this section and provided that: (a) All moorings must be located within the extended property lines of the applicant, except that moorings in existence prior to July 1, 1980, being used in connection with permitted marina facilities may be allowed at the discretion of the Board to be outside these property lines.... KCC section 68-9(B)(2)(a) (emphasis added). Under this “grand-fathering” provision, WCM obtained its permit for boat moorings located outside its extended property line (and inside Claggett’s extended property line) in Worton Creek. LBM and five other Kent County marinas also maintain boat ⁷⁸ moorings in waters in front of property they do not own, under the “grandfathering” provision quoted above.

KCC section 68-10 sets forth “Mooring requirements.” Until the enactment at issue in this case, one such requirement, enumerated at paragraph G, was that “[mjoorings in waterfowl blind areas shall be cleared of boats during waterfowl hunting season unless written permission is given by the riparian property owner.” Thus, before its language was amended, the ordinance contemplated that, during wild waterfowl hunting season, boat moorings in Kent County waters would be cleared in waters where waterfowl hunting blind sites are situated so moored boats will not interfere with the use of blinds in the same waters. The open season dates for wild waterfowl hunting are established and published annually by the DNR. NR § 10-407(b). The 2000 to 2001 waterfowl hunting season began on September 1, 2000. 65 Fed.Reg. 164, 51501 (Aug. 23, 2000) amending 50 C.F.R. Sections 20.101-107, and .109 adopted by NR Section 10-407(b).

From then until November 1, 2000, WCM kept boats at-its moorings located in Claggett’s extended water line, in front of his waterfront property. When Claggett asked WCM to remove the moored boats, it refused. Claggett sought relief from the Board, to no avail. He then filed an action (“the first declaratory judgment action”) in the Circuit Court for Kent County, seeking a declaration, inter alia, of the meaning of “designated waterfowl hunting season,” as used in KCC section 68-10(G).

The Commissioners participated as defendants in the first declaratory judgment action. The court held a hearing and on May 5, 2001, issued a declaration that KCC section 68-10(G) applies to all waterfowl hunting seasons in Kent County, as those seasons are designated by the DNR; that the section applies equally to shore blinds, offshore blinds, and offshore blind sites used in hunting waterfowl, as defined in the Natural Resources Article; and that the section requires the removal of all boats moored or maintained by a permit holder within 250 yards of any licensed shore blind, offshore blind, or ⁷⁹ offshore blind site used in connection with hunting of waterfowl prior to any waterfowl season in Kent County, as the season is designated by the DNR. No appeal was taken from that judgment. On July 3, 2001, by emergency legislation, the Commissioners passed Bill Number 7-2001, which amended KCC section 68-10(G) by deleting the words “designated waterfowl hunting season” and replacing them with language stating that all vessels on commercial mooring buoys shall be removed by November 1 of a given year until March 1 of the following year’, unless written permission to maintain the vessels during that time period is given by the riparian property owner.

Thus, by virtue of the amendment, commercial mooring buoys in Kent County no longer are required to be removed by the beginning date of the waterfowl hunting season established by the DNR; instead, they may remain in place until November 1 of any given year. Because the wild waterfowl hunting season usually begins in early September, the practical effect of the amendment is to allow “grandfathered” marinas to moor boats in the shoreline waters of riparian property owners for two months of the wild waterfowl hunting season. By designation of the DNR, the 2001-2002 wild waterfowl hunting season commenced on September 1, 2001. 66 Fed. Reg. 162 , 44010 (Aug. 21, 2001) amending 50 C.F.R. sections 20.101-20.107, and 20.109, adopted by NR section 10-407(b). That year, Claggett had obtained a state permit licensing his shoreline for wild waterfowl blinds.

Pursuant to KCC section 68-10(G), as amended by Bill Number 7-2001, WCM refused to remove boats from its commercial moorings in Claggett’s extended property lines in Worton Creek until November 1, 2001. On August 16, 2001, in the Circuit Court for Kent County, Claggett filed the declaratory judgment action at bar, seeking a determination that the amendment to KCC Section 68-10(G) was invalid, illegal, and of no force and effect, under the doctrine of preemption, or otherwise was in violation of the Maryland and federal constitutions. He further sought an ⁸⁰ injunction prohibiting the Commissioners from enforcing the local ordinance, as amended. As noted, the Marina Appellants, of which WCM is one, were permitted to intervene as defendants.

The court held an evidentiary hearing on September 13, 2001. On November 19, 2001, it heard closing arguments from counsel and made an oral ruling from the bench. The court reviewed the history of the Boat and Boating Article of the Kent County Code; the state legislation governing waterfowl hunting in riparian waters, including provisions specifically applicable to Kent and Queen Anne’s Counties; the case law addressing preemption of local law by state law; and the largely undisputed facts of this case. The court found as a fact that the presence of boats at WCM’s- moorings in Claggett’s extended property lines in Worton Creek from the beginning of the waterfowl hunting season until November 1 made impracticable Claggett’s use of his offshore blinds in those waters during that time.

The court ruled that KCC section 68-10(G), as amended, is preempted by state law because it is in direct conflict with the state general laws giving Maryland riparian landowners, such as Claggett, the right to the exclusive use of the water in front of their property for licensed blind sites and stationary blinds for the entire waterfowl season (which, as established in the first declaratory judgment action, begins on the date designated by the DNR—September 1 in the year 2001). The court also found that the amended ordinance was in direct conflict with a regulation adopted pursuant to the State Boat Act that provides that when a county is authorized by the state to regulate its own mooring buoy placements, those placements cannot infringe on the rights of any riparian property owner. The court explained: And whether we call it a riparian right or whether we call it any other kind of right, this is certainly a right, as I see it, of a riparian owner to use the water in front of his riparian land for hunting from stationary blinds or blind sites during waterfowl hunting season. ⁸¹ The court also found there was preemption by implication, given “the comprehensive system for the licensing of water in front of riparian land which has been continued in this State since 1922.” On December 3, 2001, the court issued a written order granting declaratory and injunctive relief. The order declared, further to the court’s oral ruling, that the amendment to KCC section 68-10(G), by Bill Number 7-2001, was preempted by state law and therefore was illegal, null, void, and of no force and effect; and enjoined the Commissioners and their agents, servants, and employees from enforcing the provisions of Bill Number 7-2001 by changing the date for removal of boats from commercial moorings from the commencement of wild waterfowl season to November 1.

The Commissioners and the Marina Appellants, including WCM, noted this appeal, asking whether the circuit court’s ruling was legally correct. DISCUSSION The Doctrine of Preemption The doctrine of preemption of local law by state law is grounded upon the authority of the General Assembly to reserve for itself exclusive dominion over an entire field of legislative concern. When properly invoked, the doctrine precludes local legislative bodies from enacting any legislation whatsoever in the pre-empted field. Ad + Soil, Inc. v. County Comm’rs, 307 Md. 307, 324 , 513 A.2d 893 (1986).

See also County Comm’rs v. Days Cove Reclamation Co., 122 Md.App. 505, 521 , 713 A.2d 351 (1998) (quoting Ad + Soil, Inc., supra, 307 Md. at 324 , 513 A.2d 893 ); Beretta USA Corp. v. Santos, 122 Md.App. 168, 187 , 712 A.2d 69 (1998), rev’d on other grounds, Prince George’s County v. Beretta U.S.A. Corp., 358 Md. 166, 177 , 747 A.2d 647 (2000); Mayor & City Council v. New Pulaski Co., 112 Md.App. 218, 226 , 684 A.2d 888 (1996). Preemption of local law by state law ⁸² can be express, by conflict, or by implication. Talbot County v. Skipper, 329 Md. 481, 487-88 , 620 A.2d 880 (1993). Express preemption occurs when the General Assembly by statutory language prohibits local legislation in a field.

Ad + Soil, Inc. v. County Comm’rs, supra, 307 Md. at 324 , 513 A.2d 893 . Conflict preemption occurs “when [a local law] prohibits activity which is intended to be permitted by state law, or permits an activity which is intended to be prohibited by state law.” Talbot County v. Skipper, supra, 329 Md. at 487 n. 4, 620 A.2d 880 . See also Holiday Point Marina Partners v. Anne Arundel County, 349 Md. 190, 210 , 707 A.2d 829 (1998); Boulden v. Mayor & Comm’rs, 311 Md. 411, 415-17 , 535 A.2d 477 (1988); Broadcast Equities, Inc. v. Montgomery County, 123 Md.App. 363, 393 , 718 A.2d 648 (1998), vacated on unrelated grounds, 360 Md. 438 , 758 A.2d 995 (2000). Yet, “[n]ot all conflicts between state public general and local law neatly fall within this ‘prohibit-permit’ principle.

A local law may conflict with a state public general law in other respects and will, therefore, be preempted.” Coalition for Open Doors v. Annapolis Lodge No. 622, 333 Md. 359 , 380 n. 39, 635 A.2d 412 (1994) (citing Montgomery County v. Bd. of Elections, 311 Md. 512 , 536 A.2d 641 (1988) (holding that conflict preemption existed when state law and local law provided two different and irreconcilable methods for appointing the same public officials)); East v. Gilchrist, 296 Md. 368 , 463 A.2d 285 (1983); Montgomery County Bd. of Realtors, Inc. v. Montgomery County, 287 Md. 101 , 411 A.2d 97 (1980). Finally, preemption by implication occurs when a “local l¿w ‘deal[s] with an area in which the [General Assembly] has acted with such force that an intent by the State to occupy the entire field must be implied.’ ” Talbot County v. Skipper, supra, 329 Md. at 488 , 620 A.2d 880 (quoting County Council v. Montgomery Ass’n, 274 Md. 52, 59 , 333 A.2d 596 (1975)). The following factors are relevant to whether a local law is preempted by implication: 1) whether local laws existed prior to the enactment of the state laws governing the same subject matter, 2) whether ⁸³ the state laws provide for pervasive administrative regulation, 3) whether the local ordinance regulates an area in which some local control has traditionally been allowed, 4) whether the state law expressly provides concurrent legislative authority to local jurisdictions or requires compliance with local ordinances, 5) whether a state agency responsible for administering and enforcing the state law has recognized local authority to act in the field, 6) whether the particular aspect of the field sought to be regulated by the local government has been addressed by the state legislation, and 7) whether a two-tiered regulatory process existing if local laws were not preempted would engender chaos and confusion. Allied Vending, Inc. v. Bowie, 332 Md. 279, 299-300 , 631 A.2d 77 (1993) (citations omitted). “In either case, the focus of inquiry fin deciding whether there is preemption] must be on whether the General Assembly has manifested a purpose to occupy exclusively a particular field.” Ad + Soil, Inc. v. County Comm’rs, supra, 307 Md. at 324 , 513 A.2d 893 .

In the case at bar, the circuit court found that the practical effect of the amendment to the Kent County local ordinance to designate November 1 as the date by which permit holders for commercial moorings must clear boats—regardless of the date established and set by the DNR for commencement of the wild waterfowl hunting season—was to render useless Clag-gett’s state-issued license of his shoreline for wild waterfowl hunting for the first two months of the wild waterfowl hunting season. The court concluded that the local boat mooring law, as amended, directly conflicted with state laws governing licensing of waterfowl blinds by riparian landowners and state boat mooring laws, and therefore was preempted; and also directly conflicted with regulations adopted under the State Boat Act. Alternatively, the court found that the amendment to the local law was preempted by implication by the state’s comprehensive legislation in the field of wild waterfowl hunting. ⁸⁴ Pertinent State Law on Wild Waterfowl Hunting Title 10 of the Natural Resources Article governs “Wildlife,” and subtitle 6 addresses “Wild Waterfowl.” NR section 10-607 provides at subsection (b) that owners of riparian property in Maryland may license their shorelines annually, (1) To establish offshore stationary blinds or blind sites for hunting wild waterfowl; and (2) To prevent other persons from licensing the riparian shoreline for the purpose of hunting wild waterfowl offshore. A riparian landowner wishing to license his shoreline must do so by June 1 of each year.

NR section 10—607(h)(2)(i)(1). If he owns 250 yards of continuous shoreline, or has the written permission of other adjoining landowners to tack on their shorelines, or if no other shoreline is licensed within a specified distance, the riparian landowner may erect an offshore stationary blind or blind site within a certain specified distance of his shoreline. NR 10-607(d) and (f). Generally, either a Maryland riparian landowner or a Maryland resident who is not a riparian landowner may obtain a license for a riparian shoreline to erect an offshore blind site.

NR 10-608(a). Because licensing does not begin until a date set by DNR “on or before the first Tuesday in August,” NR section 10—608(c)(4), and licensees of riparian shoreline have the sole right to establish offshore stationary blind sites within the lesser of 300 yards of the licensed shoreline or one-third of the distance to the opposite shore (except in specified areas where the distance is 800 yards), the June 1 shoreline license application deadline for riparian landowners gives them a priority in obtaining blind sites. Moreover, in Kent County, the priority is exclusive because, under NR section 10-608(g), in that county, only a riparian landowner who owns 250 yards of shoreline may erect and maintain a stationary blind or blind site. 4 ⁸⁵ These statutes comprehensively cover the right to obtain, and the means of obtaining, licenses for riparian shorelines for the purpose of erecting offshore blinds for waterfowl hunting, and in the case of riparian landowners, for preventing others from obtaining such licenses. Taken together, the statutes create a general preference for owners of riparian property in Maryland, and an absolute preference for those in Kent County, for obtaining licenses for blind sites for wild waterfowl hunting.

Maryland law has long recognized wild waterfowl hunting preferences for riparian landowners. The General Assembly first enacted legislation regulating duck blinds in 1860. Chapter 109, Acts of 1860. In 1922, by Section 2, Chapter 359, Acts of 1922, it enacted legislation giving riparian landowners priority in establishing and using duck blinds in front of their waterfront property.

The 1922 law provided: [N]o person shall erect a blind in the waters opposite the property of another without the written permission of the owner before the first day of November of each year or within three hundred yards of another licensed blind, the distance to be measured by shore line, if the blind is on the shore, or by air line, if erected in the water. In 1927, the General Assembly enacted Chapter 568, Acts of 1927, subtitled “Water Fowl-Birds and Game.” One of its stated purposes was to grant “priority to landowners in erecting duck blinds off their shores____” Boyd v. Schaefer, 184 Md. 621, 630 , 42 A.2d 721 (1945). That law provided: All owners of riparian rights, their lessees or licensees on the waters of this State shall, by virtue of said ownership, be first entitled to make a choice of the “set” or position in front of the property of which they are owners of the riparian rights, lessees or licensees, for the purpose to erect, set or maintain a booby, brush or stake blind or blinds.... (a) For the protection of shoreowners ... desiring to locate a blind or blinds on their shore, the purchase of a license as herein provided and the establishment of a stake on which shall be painted the license number and the name of the ⁸⁶ licensee, such stake not to exceed the lawful distance from shore and be established in the water, when said stake shall be established on or before October 10th, then said stake shall be termed as a blind as hereinafter provided.

Md. acts of 1927, ch. 568, § 39. Over the ensuing 75 years, recodifications of and amendments to the laws giving Maryland riparian landowners priority for obtaining waterfowl hunting blinds have resulted in the priority being diminished somewhat, but still being retained. The Waterfowl Migratory Bird Act, enacted by chapter 568 of the Maryland Acts 1927, gave riparian landowners the right to license the area in front of their property for the purpose of erecting stationary blinds or establishing blind sites. Thus, the law permitted a riparian land owner to license his shoreline for others to use to erect blinds if the owner did not wish to do so himself.

In 1970, the General Assembly again amended what was by then called the Wild Water Fowl Act, by eliminating the “first” priority for all riparian land owners to obtain licenses for blinds and restructuring the issuance of duck blind licenses based on acreage of riparian property owned. The new law established a hierarchy of priorities in which owners of larger parcels of riparian land could seek licenses first, followed by owners of smaller parcels of riparian property. Non-riparian property owners were given third priority. Because the law also provided that blinds had to be spaced a certain number of yards apart, however, a riparian landowner who, by virtue of the hierarchy for application dates received his license before others, had first choice for the location for his blind.

In 1974, the General Assembly recodified the Wild Waterfowl Act, moving it to the new Natural Resources Article of the Maryland Code. Former section 154 of Article 66 C became new NR section 10-612. The recodified statute drew distinctions between licenses for stationary blinds and blind sites, and restructured the filing dates for