Hirsch v. Maryland Department of Natural Resources

Eldridge, J., delivered the opinion of the Court. By Chapter 241 of the Acts of 1970, presently codified as Maryland Code (1974), § 9-101 et seq. of the Natural Resources Article, * 1 the General Assembly enacted the Wetlands Act of 1970, which substantially changed the statutory and common law privileges and responsibilities of owners of real property contiguous to bodies of tidal water in this state. Finding that the despoliation or destruction of ⁹⁸ wetland areas by certain unregulated activities had adversely affected important ecological, economic, recreational and aesthetic interests (§ 9-102), the Legislature established a comprehensive plan providing for the restriction and regulation of various activities affecting wetlands in order to preserve and protect them. The Wetlands Act directed the Secretary of Natural Resources to determine the landward boundaries of any wetlands and to promulgate rules and regulations governing certain activities which might alter or affect any wetlands located on private property.

The petitioners in this case, John, William and Robert Hirsch and their respective wives Mary, Elizabeth and Glenda Hirsch (all of whom shall hereafter collectively be referred to as Hirsch), owned five waterfront lots in Anne Arundel County. After commencing to place fill dirt on these lots, Hirsch was told by agents of the Department of Natural Resources that the fill may have been placed in wetland areas in violation of the Wetlands Act of 1970 and certain rules and regulations adopted by the Secretary. The principal issue in this case is whether these purported rules and regulations adopted by the Secretary are invalid because of the Secretary’s alleged failure to comply with the Act’s provisions governing their promulgation. Before dealing with the facts and issue of this case, a brief summary of the Wetlands Act of 1970, and some of the changes which it made in the pre-existing law, may be helpful. 2 Under common law principles, title to the bed of navigable waters, defined as the land beneath the mean high tide mark of these waters, rests in the state for the benefit ⁹⁹ of its citizens, by virtue of the state’s succession to the rights and title of the Lord Proprietor who had received the land by grant from the Crown of England, unless title to the land beneath such waters had been expressly granted to a private person.

See Harbor Island Marina v. Calvert Co., 286 Md. 303, 314 , 407 A.2d 738 (1979); Bd. of Pub. Works v. Larmar Corp., 262 Md. 24, 35 , 277 A.2d 427 (1971); Van Ruymbeke v. Patapsco Ind. Park, 261 Md. 470, 475-476 , 276 A.2d 61 (1971); Browne, et al. v. Kennedy, 5 H. & J. 195 (1821); Maryland Declaration of Rights, Art. 5; 50 Opinions of the Attorney General 452, 454 (1965). Navigable water has traditionally been defined in Maryland as water subject to the ebb and flow of the tide.

Van Ruymbeke v. Patapsco Ind. Park, supra, 261 Md. at 475. 3 Correspondingly, absent an express grant of the title to the land beneath navigable water, an owner of land bordering on navigable water was deemed to own the land only to the mean high tide mark. Id. at 475 . In addition, the owner of land bordering navigable water was accorded certain other rights by statutory and case law.

Thus, he was entitled to any gain or increase in his land that was naturally caused, such as by the recession of the adjacent water or by the depositing of soil on his land by tidal action. Moreover, he was also permitted to use the adjacent waters for artificial improvements to his property, such as by building wharves, bulkheads, piers, or under some circumstances placing fill in the waters, as long as the improvements did not interfere with the public’s rights of navigation and fishing. See Harbor Island Marina v. Calvert Co., supra, 286 Md. at 315-318 ; Bd. of Pub. Works v. Larmar Corp., supra, 262 Md. at 36-44; Code (1957, 1968 Repl.

Vol.), Art. 54, §§ 45-46, which was replaced by the Wetlands Act of 1970. ¹⁰⁰ The Wetlands Act of '1970 modified these relationships between the state and the landowner with respect to the activities permitted on certain types of land and its adjacent waters. Stating that the dredging, filling and other similar activities had despoiled or destroyed some of the wetlands in this State, and that these activities threatened the existence of the remaining wetlands, the Act declares that it is the "public policy of the state ... to preserve the wetlands and prevent their despoliation and destruction.” Code (1974), § 9-102 of the Natural Resources Article. 4 Therefore, the Act provides a comprehensive plan for regulating the dredging and filling of the state-owned land beneath navigable waters, and, for the first time, the Act undertakes to regulate activities affecting privately owned wetlands. The Wetlands Act establishes a bipartite scheme depending on whether the wetlands are state or private. "State wetlands” are defined as "any land under the navigable waters of the state below the mean high tide, affected by the regular rise and fall of the tide.

Wetlands of this category which have been transferred by the state by valid grant, lease, patent or grant confirmed by Article 5 of the Declaration of Rights of the Constitution shall be considered 'private wetland’ to the extent of the interest transferred.” (§ 9-101 (m), emphasis supplied.) With respect to these wetlands, the Act broadly states: "[a] person may not dredge or fill on state wetlands, without a license.” § 9-202 (a). The Act describes the procedures for obtaining a license from the Board of Public Works and for judicial review of the Board’s decision (§§ 9-201 — 9-203). The regulatory plan for private wetlands is more elaborate, containing many conditions with regard to the ¹⁰¹ prohibitions set forth and the actions of the state officials involved. Private wetlands are defined as "any land not considered 'state wetland’ bordering on or lying beneath tidal waters, which is subject to regular or periodic tidal action and supports aquatic growth.

This includes wetlands, transferred by the state by a valid grant, lease, patent, or grant confirmed by Article 5 of the Declaration of Rights of the Constitution, to the extent of the interest transferred.” (§ 9-101 (j), emphasis supplied.) Section 9-101 (k) defines "regular or periodic tidal action” as "the rise and fall of the sea produced by the attraction of the sun and moon uninfluenced by wind or any other circumstance.” Thus, as one commentator has observed, a private wetland does not have to be under the navigable water of the state or below mean high tide; instead, it may be located above mean high tide, and, therefore, on private land, as long as it borders on tidal water, is subject to some tidal action, and supports aquatic growth. Salsbury, Maryland’s Wetlands: The Legal Quagmire, 30 Md. L. Rev. 240 , 252 (1970). The Act assigns the regulation of private wetlands to the Department of Natural Resources rather than to the Board of Public Works. By § 9-301 (a), the Secretary of Natural Resources is directed to inventory and delineate the location of the landward boundaries of all wetlands and to prepare maps showing the boundaries.

The Secretary is also directed to promulgate "rules and regulations governing dredging, filling, removing, or otherwise altering or polluting private wetlands. The rules and regulations may vary as to specific tracts of wetlands, because of the character of the wetlands.” § 9-302 (a). After completing the wetland boundary maps and formulating the proposed rules and regulations governing private wetlands in a county, the Secretary is instructed to hold a public hearing in that county. He is further required to give notice of this hearing not only by publishing a notice in a newspaper generally circulated in the county, but also ¹⁰² by mailing a copy of the notice and a copy of the proposed private wetlands rules and regulations to each owner, as shown on the tax records, of land designated on the map(s) as a wetland (§ 9-301 (b)).

After directing the Secretary to consider any testimony or other facts presented at the hearing, "the rights of every affected property owner, and the purposes” of the Act, the statute provides that "the Secretary shall establish by order the landward bounds of each wetland and the rules and regulations applicable to it. A copy of the order, together with a copy of the map depicting the boundary lines, shall be ñled among the land records in every county affected after final appeal has been completed. The Secretary shall give notice of the order to each owner of record of any land designated as wetlands by mailing a copy of the order to the owner by registered or certified mail....” (§ 9-301 (c), emphasis supplied.) Section 9-304 permits any person with a recorded interest in land affected by the private wetlands regulations to seek further administrative review of the rules and regulations and the designation of his land(s) as wetland(s). If dissatisfied with this decision, that person may seek judicial review to determine whether the rules and regulations are so restrictive as to deprive him of so much of the practical use of the land that it is an "unreasonable exercise of the police power so as to constitute a taking of property without compensation.” § 9-305 (a).

Section 9-306 (a) provides that any person intending to conduct on any wetland activity not permitted by the private wetlands regulations must apply to the Secretary of Natural Resources for a permit to conduct such activity. In deciding whether to grant the permit, the Secretary is directed to consider, among other things, ecological factors, the public health and welfare, and the public policy of the Act (§ 9-306 (b)). Provisions for administrative and judicial review of the decision to grant or deny the permit are set forth in §§ 9-307 and 9-308. ¹⁰³ Section 9-501 (a)-(c) states that the violation of the Act or of any private wetland "regulation adopted by ... the Department pursuant to the provisions” of the Act is a misdemeanor punishable by fine or imprisonment. In addition, § 9-501 (d) provides that a person who knowingly violates any provision of the Act "is liable to the state for restoration of the affected wetland to its condition prior to the violation if possible.” 5 ¹⁰⁴ Finally, § 9-310 authorizes a court to "restrain any violation” of the Act in an action brought by the Department.

We turn now to the facts of the instant case. The five waterfront lots that are involved in this litigation border on Cornfield Creek, a tributary of the Magothy River, in Anne Arundel County. The chain of title to these lots is traceable to an 1814 patent from the State of Maryland to Vachel Phillips. When the Wetlands Act was enacted in 1970, these lots were owned by the Emerson Development Company.

In September 1972, Emerson conveyed the lots to Ann Szymanski. The deed, however, was not recorded in the land records until October 31, 1972. Pursuant to the directions in §§ 9-301 (a) and 9-302 (a), the Department of Natural Resources began to inventory and prepare maps defining the boundaries of wetland areas and to formulate the proposed private wetlands regulations. This task was completed in'1972.

As required by § 9-301 (b), the Department mailed, on October 25, 1972, a copy of the proposed private wetlands regulations and the individual notices of the hearing concerning the designation of wetland areas to the owners, as shown by the tax records, of property located in Anne Arundel County that had been designated on the proposed map(s) as wetlands. Also as required by § 9-301 (b), the Department published notices of the hearing in several newspapers generally circulated in Anne Arundel County. The five lots at issue here were tentatively designated as containing private wetlands. Because the deed conveying these five lots from the Emerson Development Company to Ann Szymanski was not recorded until October 31, 1972, however, Emerson, and not Mrs. Szymanski, was listed as owner of the lots on the tax records.

Consequently, the Department sent the notice to the address listed in the tax records for Emerson’s resident agent. Because the resident agent had moved from that address four years earlier, neither he nor Emerson appear to have ever received the notice. After the hearing was held, the Secretary, on January 25, 1973, signed the final order establishing the boundaries of ¹⁰⁵ each private wetland in Anne Arundel County and adopting the applicable private wetlands regulations. Attempting to comply with the directions in § 9-301 (c), in September 1973 the Department purported to mail the individual notice of the order to each owner of record of land designated as a wetland.

Although this mailing occurred approximately ten months after the notices of the proposed hearing had been mailed, and nearly eight months after the Secretary had signed the final order, the Department did not re-examine the tax records for any intervening changes in ownership but, instead, relied on the same list of owners that had been prepared ten months earlier for the mailing of the hearing notices. Although Mrs. Szymanski was by this time listed as the owner of record of the five lots, the notice of the final order was nevertheless again sent to Emerson at the address from which its resident agent had moved. There is some evidence that the resident agent’s secretary may somehow have received this notice, but it is clear that the agent did not notify Mrs. Szymanski. Therefore, she failed to receive the notice that the lots had finally been designated as private wetlands and were subject to the applicable regulations.

In addition, § 9-301 (c) requires that a copy of the order and the maps delineating the boundary lines of wetlands areas "shall be filed among the land records in every county affected.” A representative of the Department testified that, in August 1973, he delivered a copy of the Secretary’s order establishing the wetlands boundaries for Anne Arundel County, the wetlands maps for the county, and the private wetlands rules and regulations, to the Clerk of the Circuit Court for Anne Arundel County. It is undisputed, however, that neither the order nor the maps nor the rules and regulations were ever filed or referred to in the land records. Instead, the maps were placed in a file cabinet drawer in an area inaccessible to the public or to title searchers. Whether the copies of the order or of the private wetlands regulations were also placed in the file cabinet is unclear, but these documents were eventually misplaced or lost.

It appears that it was not until May 1975 that the order, the rules and ¹⁰⁶ regulations, and an index to the wetlands maps, were placed on a wall in the clerk’s office in such a manner that they might come to the attention of the public or a title searcher. However, it was not until at least February 1977 that a list was ever posted of the names of each owner of property determined by the Secretary’s order to contain wetlands. The petitioners in this case, the Hirsches, purchased the five lots on Cornfield Creek from Mrs. Szymanski in July 1974. Prior to that time, Hirsch engaged Mrs. Nelker, a professional title searcher, to perform a title search on the lots.

She reported that the title was free of any cloud. She did not tell Mr. Hirsch that the lots had been designated as wetlands. Moreover, she testified that there was no way that she could possibly have learned of this fact by a title search. In late July or early August, Hirsch began clearing debris and trees from the lots.

On August 9, 1974, Mrs. Hirsch received a telephone call from a Mr. Boone of the Department of Natural Resources. Mrs. Hirsch testified that Boone never mentioned the subject of wetlands. Mr. Boone, however, testified that he had advised Mrs. Hirsch that her property had been inspected by the Department in response to a complaint, and that, although the Wetlands Act had not been violated at that time, a wetlands license or permit should be applied for if they intended to fill or clear debris beyond that which had already occurred. Thereafter, Hirsch began to place fill dirt on the property.

Responding to another telephone complaint, inspectors for the Department revisited the property in late November and early December 1974, and determined that fill had been placed on private wetlands without a permit, in violation of the applicable private wetlands rules and regulations. 6 ¹⁰⁷ Subsequently, an administrative order was issued on December 12, 1974, by the Water Resources Administration of the Department of Natural Resources, ordering Hirsch to discontinue any filling activities on the property and to submit a plan for the restoration of the property to its previous condition. At Ilirsch’s request, an informal administrative hearing relating to the order was held. Afterwards, the Department again concluded that a violation had occurred and ordered Hirsch to submit a plan for restoration of the wetlands. After Hirsch did not comply, the Department instituted the present action in the Circuit Court for Anne Arundel County by filing a bill of complaint for a mandatory injunction requiring Hirsch to restore the wetlands.

The bill alleged that Hirsch had knowingly filled both state and private wetlands without a license or permit. Hirsch denied both that any wetlands had been filled and, if they had been filled, that it was done knowingly. In addition, Hirsch argued that the Department’s private wetlands rules and regulations, purporting to regulate the filling of private wetlands, were invalid because the Department had failed to comply with the statutory procedure for promulgating the regulations. According to Hirsch, the Department failed to comply with § 9-301 (c)’s requirements that copies of the final order, establishing the actual boundaries of wetlands, and maps "depicting” those boundaries be "filed among the land records” and that notice of the final order be mailed to each owner of record of affected land.

With respect to the latter contention, Hirsch pointed out that the notice had been sent to the Emerson Development Company even though Mrs. Szymanski was at that time listed as the owner of record. Finally, Hirsch argued that the State’s grant of land, including the lots at issue here, to Vachel Phillips by the 1814 patent had included some of the land under the waters of Cornfield Creek. Because the definition of state wetlands in § 9-101 (m) excludes wetlands under navigable water which have been transferred by the State, Hirsch contended that any wetlands that were filled could only be private wetlands. ¹⁰⁸ At trial, in order to prove that both state and private wetlands had been filled, the State presented numerous expert witnesses describing certain types of vegetation growing on the lots, of a type characteristically found in tidal wetlands. The State also presented tidal data designed to establish that the property was in a tidal area and test results analyzing the marshland content of soil borings from filled areas of the property.

In a written memorandum and order, the trial court found as a fact that the Hirsch property had contained wetlands prior to fill and that fill had been placed over some of these wetlands. The court also found, however, that the State had failed to meet its burden of proof that state wetlands had been filled. According to the court, the State’s evidence had only showed the topography of the land and the tidal levels as they were in 1976, when the tests had been made, but had failed to show the topographical or tidal conditions as they existed in 1974 when the filling took place. Thus, the court found that the filled lands were private wetlands. 7 Finally the court agreed with Hirsch that the private wetlands rules and regulations were invalid.

The court pointed out that § 9-301 (c) required that the wetlands maps and the order must be filed among the land records. According to the court, the Wetlands Act and the private wetlands regulations created, in effect, a restrictive covenant applicable to the property. Therefore, the court concluded that the order designating the property as wetlands, the maps, and the private wetlands regulations, were within the scope of Code (1974), § 3-101 (a) of the Real Property Article, which requires that no "declaration or limitation of use ... or deed may pass or take effect unless the deed granting it is executed and recorded.” Because the Department failed to record the maps and order "in a manner which would put a prospective owner on notice of the restriction,” the court denied the State’s request for restoration and dismissed the bill of complaint. The State took an appeal to the Court of Special Appeals. ¹⁰⁹ The Court of Special Appeals reversed the judgment of the circuit court.

Maryland Dep’t v. Hirsch, 42 Md. App. 457 , 401 A.2d 491 (1979). First, the intermediate appellate court concluded that the trial court’s finding that wetlands had been filled was not clearly erroneous. Id. at 471 . Second, although agreeing with Hirsch that the Department had not complied with § 9-301 (c) when it failed to notify Mrs. Szymanski, the then record owner of these lots, that the order designating the lots as wetlands had been adopted, the court held that this failure did not render the private wetlands regulations invalid as to Hirsch.

Because Hirsch was not the record owner of the lots at the time the notice was given, the Court of Special Appeals held that Hirsch did not have standing to complain of the Department’s noncompliance with the Wetlands Act provisions in this regard. 42 Md. App. at 474-475 . Third, the court rejected the trial court’s conclusion that the recording provision in § 3-101 of the Real Property Article was applicable in these circumstances. The intermediate appellate court reasoned that § 3-101 speaks in terms of a "deed” imposing a restriction, which means a document between private parties rather than an administrative regulation. 42 Md. App. at 475-476 . Finally, the Court of Special Appeals held that § 9-301 (c), requiring that a copy of the order and maps establishing the wetlands boundaries "shall be filed among the land records,” had been violated. 42 Md. App. at 479-480 .

The court stated that "filing” the maps in an inaccessible cabinet, and either misplacing or losing the order and the private wetlands regulations, was not compliance with the requirement that the order and maps be filed among the land records. However, the Court of Special Appeals took the position that it did not have to decide whether the noncompliance with § 9-301 (c) rendered the private wetlands regulations invalid as to Hirsch. In the court’s view, even if the failure to properly file the order and maps meant that Hirsch had not been given notice from the land records that the property contained private wetlands and was subject to the regulations, Hirsch had received actual notice, before any ¹¹⁰ filling occurred, from Mr. Boone’s telephone call to Mrs. Hirsch advising her that it would be necessary to secure a wetlands permit. 42 Md. App. at 483-484 . 8 The Court of Special Appeals concluded that, because of this actual notice from the telephone call, Hirsch did not have "standing” to complain about a lack of notice resulting from the Department’s failure to comply with the filing requirements of § 9-301 (c). 42 Md. App. at 484 . Thereafter, this Court granted both Hirsch’s petition and the State’s conditional cross-petition for a writ of certiorari.

In the petitions and briefs, both sides have raised several arguments supporting their respective positions. In our view, however, most of these contentions need not be reached. The principal, and we believe dispositive, argument raised by Hirsch is that the Department’s failure to comply with § 9-301 (c)’s requirement to file the maps and order among the land records rendered the Anne Arundel County private wetlands regulations invalid during the times pertinent to this case. Consequently, Hirsch argues, the regulations cannot serve as the basis for an order compelling him to ¹¹¹ restore the wetlands.

The State, on the other hand, argues that the Court of Special Appeals erred in finding a violation of § 9-301 (c). Section 9-301 (c) provides that a "copy of the order, together with a copy of the map depicting the boundary lines, shall be Gled among the land records in every county affected.” The State claims that this language does not mean that the maps and order were to be recorded or indexed in the land records. Rather, the State argues that the statute only required that the maps and order be delivered by the Department to the Clerk of the Court. We disagree.

Section 9-301 (c) does not say only that the maps and order should be filed in the clerk’s office. If that were the language