Department of Natural Resources v. Linchester Sand & Gravel Corp.

Digges, J., delivered the opinion of the Court. Maryland’s recently enacted “wetlands statute,” marshalled by the General Assembly to protect those vast acres of ecologically, economically, aesthetically and recreation ally valuable terraqueous areas having completely, partially or periodically submerged bottoms, which are the habitats of innumerable variations of aquatic life, is the legal quagmire through which we must wade in order to resolve this dispute. 1 Although the basic legal question requires considerable analysis, the facts of this case are not muddled. ²¹³ Approximately four years ago Linchester Sand and Gravel Corporation, the appellee, purchased five acres of land, located in Somerset County and bounded on two sides by the Wicomico River and its tributary, the Dames Quarter Creek, so that the owner of that corporation, William C. Sharpley, could build two summer homes on the property — one for himself and one for his son. Approximately half of this purchase is composed of wetlands, since it becomes inundated by spring tides. 2 As a consequence, Sharpley, apparently unaware of the necessity of obtaining beforehand a permit as required by Maryland Code (1974), § 9-306 (a) of the Natural Resources Article, set about the task of altering the wetlands portion of the property to make it more suitable for home construction and access to the beach. To accomplish this Sharpley began to dredge the marsh and use the borrow obtained as fill for a man-made dune.

In the process of doing this he created a cut into his private wetland which resulted in the despoliation of a considerable portion of both his and the adjoining public marsh. The appellant, the Department of Natural Resources, describes the destructive nature of Sharpley’s activities by asserting that: ²¹⁴ “The effect of the unauthorized placement of fill on the marsh area destroyed an area 40 feet by approximately 150 feet of tidal State wetlands. The larger impact, however, of this fill was to prevent the flooding of the marshland by blocking off the marsh and thereby allow water to become impounded within the marsh, cutting off the free flow of water thereupon. Part of the marsh therefore has already died with the probable enlargement of a mosquito problem.” When these dredging and filling activities came to the attention of the department it issued a “cease and desist order” which commanded the landowner to terminate this topographical alteration until he obtained a proper permit as is required by § 9-306.

In an effort to comply with this mandate, Sharpley submitted his application, which, following departmental study, was denied by the Secretary of the Department of Natural Resources on April 10, 1973. Undeterred by what he considered to be an unreasonable action by the Secretary, Sharpley appealed to the department’s board of review as is permitted by § 9-307. However, his hopes to obtain the permit through this source were also dashed when, on October 1, 1973, the board affirmed the Secretary’s decision. Having been rebuffed in his efforts to obtain a permit through these administrative processes, Sharpley then turned to the judicial branch of this State’s government for relief by appealing the departmental denial of his permit to the Circuit Court for Somerset County (Duer, C. J.), where he sought a de novo trial by jury under the provisions of § 9-308.

That section of the “wetlands statute” states: “(a) Appeal procedure; time limitation. — Any party to the appeal to the board of review pursuant to § 9-307 may appeal to the circuit court for the county in which the land is located within 30 days after the decision of the board of review. (b) Appeal not subject to Administrative Procedure Act; de novo trial; election of jury trial; ²¹⁵ no right of removal. — The appeal is not subject to the provisions of the Administrative Procedure Act. The court shall hear the case de novo. Either party may elect a jury trial.

There is no right of removal. (c) Court may set aside or modify decision if unreasonable exercise of police power. — If the court finds that the decision of the board of review appealed from is an unreasonable exercise of police power, it may set aside or modify the determination.” At the jury trial which followed this request, Judge Duer, while deciding as a matter of law that “reasonable preservation of a natural resource is a valid exercise of police powers,” nevertheless, permitted the jury to determine the ultimate question of whether the permit in this case should be granted. Aside from informing the jury of its general duties and upon whom the burden of proof rests, the court’s instructions consisted almost exclusively of a verbatim reading of the following excerpted language from § 9-306 (b) and (c) and § 9-102 of the “wetlands statute”: “Now, it says this: ‘In granting, denying, or limiting any permit, the secretary,’ meaning the secretary of the Board of Natural Resources, ‘or his duly designated hearing officer shall consider the effect of the proposed work with reference to the public health and welfare, marine fisheries, shellfisheries, wildlife, economic benefits, the protection of life and property from flood, hurricane and other natural disasters, and the public policy set forth in this subtitle. In granting a permit, the secretary may limit or impose conditions or limitations designed to carry out the public policy set forth in this subtitle.

Upon receipt of an application for a permit pursuant to this section, the secretary or his designee,’ meaning one that he would designate to act for him in his stead, ‘shall hold a public hearing on the matter within 60 days after receipt of the application. A decision ²¹⁶ shall be made by the secretary within 30 days after the hearing. Failure to act in conformance with cither of these requirements shall constitute automatic approval of the application for permit as stated.’ “Now, ladies and gentlemen, in the start of the Wetlands Acts, this is Declaration of Public Policy, ‘It is declared that in many areas of the State, much of the wetlands have been lost or despoiled by unregulated dredging, dumping, filling, and like activities, and that the remaining wetlands of this State are in jeopardy of being lost or despoiled by these and other activities; that such loss or despoliation will adversely affect, if not entirely eliminate, the value of such wetlands as a source of nutrients to finfish, crustácea and shellfish of significant economic value; that such loss or despoliation will destroy such wetlands as habitats for plants and animals of significant economic value and will eliminate or substantially reduce marine commerce, recreation, and aesthetic enjoyment; and that such loss or despoliation will, in most cases, disturb the natural ability of tidal wetlands to reduce flood damage and adversely affect the public health and welfare; that such loss or despoliation will substantially reduce the capacity of such wetlands to absorb silt and will thus result in increased silting of channels and harbor areas to the detriment of free navigation. Therefore, it is declared to be the public policy of this State, taking into account varying ecological, economic, developmental, recreational and aesthetic values, to preserve the wetlands and to prevent the despoliation and destruction thereof.’ ” 3 ²¹⁷ The jury answered the following issue which the court submitted to it — “After weighing the facts, considering the testimony and applying the law as given to you by the court, should the requested permit be granted or denied? ” — by responding, “Granted.” Accordingly, judgment was entered in favor of the appellee.

After Sharpley’s trial court victory, the Department of Natural Resources appealed to this Court, asserting that this type of extensive and nullifying judicial de novo review, under § 9-308 (b), is not permitted by the Maryland Constitution because “the judicial branch of government may not usurp the province of the administrative prerogative.” We agree with the appellant, and, therefore, will reverse the judgment entered in the circuit court. 4 Taken literally the language of § 9-308 (b) seems to sustain the conclusion reached by the circuit court that a landowner who is not content with the Department of Natural Resources’ conclusion concerning his use of his own wetlands can appeal to the judicial branch of government and in doing so have the slate cleansed to the extent that the court, or the jury if opted for, can completely substitute its own judgment for that of the administrative agency without regard to that agency’s prior determination. The appellant does not argue that the words should be given a meaning at variance with this; instead, it contends that such a scope of judicial review, built into the “wetlands statute,” is ²¹⁸ unconstitutional, as being “a usurpation of the traditional division of powers between the legislative and judicial branches” of this State’s government. In assessing the constitutionality of an act of the General Assembly we are mindful of the fact that enactments of the. Legislature are presumed to be constitutionally valid and that this presumption prevails until it appears that the enactment under consideration is invalid or obnoxious to the expressed terms of the Constitution or to the necessary implication afforded by, or flowing from, such expressed provisions.

Md. Bd. of Pharmacy v. Sav-A-Lot, 270 Md. 103, 106-07 , 311 A. 2d 242 (1973); Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 48-49 , 300 A. 2d 367 (1973). That aspect of the Constitution which is spotlighted by this case is the fundamental doctrine of separation of powers, a principle expressly or impliedly recognized in the basic law of every state in this nation. This doctrine has long been a cornerstone of this State’s concept of government and finds forthright expression in Article 8 of the Declaration of Rights contained in the Constitution of Maryland in these words: “That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.” Although Maryland’s statement of the separation of powers is “a more concrete barrier than any which the Supreme Court has had to hurdle under the Federal Constitution,” R. Oppenheimer, Administrative Law in Maryland, 2 Md.L.Rev. 185, 188 (1938), the right of the Legislature to delegate powers to administrative agencies has been recognized in this State for more than 125 years. Harrison v. Mayor & C. C. of Balt., 1 Gill 264 (1843).

As a result of the fact that delegation by the Legislature of some of its own power is permissible, there has been a devolution of a great variety of nonjudicial responsibilities and functions to administrative agencies, which, after being ²¹⁹ provided with general rules and standards to guide them, are given “the task of acquiring information, working out the details, and applying these rules and standards to specific cases.” Tighe v. Osborne, 150 Md. 452, 463 , 133 A. 465 (1926). Though expressed in a dissenting opinion, we believe to be correct what Chief Judge Bond succinctly pointed out exactly fifty years ago in Goldman v. Crowther, 147 Md. 282, 320-22 , 128 A. 50 (1925): “Legislation which has to provide for a large number of special cases of varied facts, or for unforeseeable conditions present or future, must be supplemented by the action of administrative officers with power to adapt and vary the rule as the special cases come before them, one by one. If this were not permissible, then the legislative branch of the government could not deal with some of the needs of the country or of the community at all, for it can be done in no other way. . . . Senator Elihu Root, who speaks with the authority of a most profound understanding of our institutions and of the law, said to the American Bar Association in 1916: ‘As any community passes from simple to complex conditions the only way in which government can deal with the increased burdens thrown upon it is by the delegation of power to be exercised in detail by subordinate agents, subject to the control of general directions prescribed by superior authority.

The necessities of our situation have already led to an extensive employment of that method. The Interstate Commerce Commission, the State Public Service Commissions, the Federal Trade Commission, the powers of the Federal Reserve Board, the health departments of the states, and many other supervisory offices and agencies are familiar illustrations. Before these agencies the old doctrine prohibiting the delegation of legislative power has virtually retired from the field and given up the ²²⁰ fight. There will be no withdrawal from these experiments.

We shall go on; we shall expand them, whether we approve theoretically or not, because such agencies furnish protection to rights and obstacles to wrongdoing which under our social and industrial conditions cannot be practically accomplished by the old and simple procedure of legislatures and courts as in the last generation.’ ” These remarks were indeed prophetic, as, over the many years since they were spoken, administrative agencies have prospered and multiplied prolifically. In response to the practical needs of government, not only has there been an extensive introduction of these administrative agencies in this State, as is true in most if not all of our sister states, but in addition, as a consequence of this need, there has occurred within these agencies some mingling, blending and overlapping of the legislative, executive and judicial functions. We believe this to be permissible, within limits, as the separation of powers concept may constitutionally encompass a sensible degree of elasticity and should not be applied with doctrinaire rigor. However, this constitutional “elasticity” cannot be stretched to a point where, in effect, there no longer exists a separation of governmental power, as the Maryland Constitution does not permit a merger of the three branches of our State government, nor does it “make any one of the three departments subordinate to the other, when exercising the trust committed to it.” Painter v. Mattfeldt, 119 Md. 466, 472 , 87 A. 413 (1913).

When the Legislature confers, by enactment, powers upon one of the other branches of government which are beyond those permitted under the Constitution, or any of the three branches of government takes unto itself powers denied to it or those strictly within the sovereignty of another branch, the courts of this State must step in and declare such encroachments to be constitutionally prohibited, not because the court is a “Triton among minnows” or predominates in dignity, but because, as Chief Justice Marshall, in Marbury v. Madison, 1 ²²¹ Cranch 137 (1803), in speaking of the federal constitutional system — though just as applicable to our State system — avowed: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. “So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. “If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.” Id. at 177-78 .

When faced with the responsibility of juxtaposing a statute which provides for judicial review of administrative agencies with the separation of powers doctrine as it is enshrined in the Maryland Constitution, it is clear that the analysis involves contrasting the relative role of the administrative agency process with that of the judiciary. We note initially that both the agencies and the courts are governmental ministries created to promote public purposes, and in this sense they are collaborative instrumentalities, rather than rivals or competitors, in the paramount task of safeguarding the interests of our citizens. However, the agencies and the courts each have their own, separate, constitutionally-erected fortress of power and responsibility in the relationship each has to the activities delegated by the Legislature to administrative agencies. ²²² The primary function of administrative agencies is to advance the will and weal of the people as ordained by their representatives — the Legislature. These agencies are created in order to perform activities which the Legislature deems desirable and necessary to forward the health, safety, welfare and morals of the citizens of this State.

While these agencies at times perform some activities which are legislative in nature and thus have been dubbed as quasi-legislative duties, they in addition take on a judicial coloring in that frequently, within the exercise of their power, they are called upon to make factual determinations and thus adjudicate, and it is in that sense that they are also recurrently considered to be acting in a quasi-judicial capacity. This dual role which administrative agencies play has long been accepted in this State as being constitutionally permissible. Zeitschel v. Bd. of Ed. of Carroll Co., 274 Md. 69 , 332 A. 2d 906 (1975); County Council v. Investors Funding, 270 Md. 403 , 312 A. 2d 225 (1973); Heaps v. Cobb, 185 Md. 372 , 45 A. 2d 73 (1945); Hecht v. Crook, 184 Md. 271 , 40 A. 2d 673 (1945). However, this authority is not the same and, therefore, is distinguishable from the exercising of the “judicial powers” of this