Potomac Sand & Gravel Co. v. Governor

Per Curiam : On June 30, 1971, Potomac Sand and Gravel Company (Potomac Company) filed a bill for declaratory judgment in the Circuit Court for Anne Arundel County in which it requested that the Laws of Maryland (1971), Chapter 792; Code of Public Local Laws of Charles ³⁶¹ County (1969 Ed.), Article 9, section 337A (Chapter 792) be declared to be unconstitutional. The decree, from which this appeal was taken, was signed by Judge Evans on March 3, 1972, and implemented an opinion filed several days earlier. We adopt the excellent, careful and comprehensive opinion of the trial judge, which follows: “The Maryland Legislature on 28 May 1971 enacted Chapter 792 as a public local law of Maryland limited to the geographical boundaries of Charles County. Chapter 792 took effect 1 July 1971 and reads: “(a) It shall be unlawful to dredge for sand, gravel or other aggregates or minerals, in any of the tidal waters or marshlands of Charles County, providing that this section shall not conflict with any necessary channel dredging operation for the purposes of navigation.

(b) Any person violating the provisions of this section shall, upon conviction thereof, be punished by a fine of not less than five hundred dollars ($500.00) nor more than twenty-five hundred dollars ($2,500.00), providing further that each day such offense continues shall be a separate violation of this Section and subject to penalties thereof.” Potomac Company is engaged in the business of dredging sand and gravel found in Maryland and Virginia. The sand and gravel is removed from deposits found in land owned by the plaintiff and from the beds of tidal waters surrounding that land. It is floated on barges to the District of Columbia where it is sold for use primarily in the construction industry. Potomac Company is the owner of three parcels of land, the uses of which are at issue in the case at bar.

All three parcels are located in Charles County, Maryland, and all three are adjoined to or surrounded by State wetlands. State wetlands are the lands under the navigable waters of the State below the mean high tide, which ³⁶² are affected by the regular rise and fall of the tide. Code, Article 66C, sec. 719 (a) (1970 Replacement Volume), also known as the Wetlands Act of 1970. All three parcels are within the proscription of Chapter 792. 1.

The Mattawoman tract is an area of about 1015 acres on Mattawoman Creek. Dredging is proposed for 300 of these 1015 acres. Of the 300 acres, 70% are below mean high tide, or in other words are State wetlands. Code, Article 66C, sec. 719 (a) ; Bd. of Pub.

Works v. Larmar Corp., 262 Md. 24 , 277 A. 2d 427 (1971). The depth of the dredge sites at Mattawoman Creek is presently between two and twelve feet. Potomac Company proposed to dredge to an overall depth of fifty feet. Mattawoman Creek is one of ten main spawning streams supporting anadromous fish in the drainage system of the Potomac River.

It is one of the finest freshwater marshes in the Upper Potomac Estuary, and is the only area along the Maryland shores where the rare native lotus (water lily) and [zizania aquatica] (wild rice) are to be found. Its aquatic plants act as a rinsing agent by absorbing and using in their biological process pollutants, suspended dirt particles, and other inorganic materials that, in excessive amounts, cause conditions of aquatic overfertilization. The vegetation is an important source of dissolved oxygen, food, and protection necessary for anadromous fish which utilize the marshes for resting and spawning each spring. Mattawoman Creek is a spawning area for yellow perch, white perch, striped bass and herring; in addition, sunfish, pike, shad, and catfish can be found there.

It is also a habitat for the bald eagle, black duck, mallard duck, deer, rabbit, mink, otter, beaver, and has one of the larger wood duck roosts. Potomac Company paid a total of $1126 property taxes in 1970 for its interests in the Mattawoman Creek property. It is estimated that there are 10 million tons of sand and gravel in Mattawoman Creek which Potomac Company seeks to dredge. 2. Craney Island, the total size of which alters due to ³⁶³ the ebb and flow of the Potomac River, is located entirely within the Potomac River.

While Potomac Company’s deed recites Craney Island to be thirty acres (aerial photographs indicate a few trees protruding from the center of the Potomac River), Potomac Company acknowledges in its memorandum that actually no more than one acre of Craney Island is usually above water. Potomac Company paid taxes in 1970 on .26 acre — a total of $48.53 property taxes for its interests in the Craney Island parcel. The dredge site claimed by Potomac Company is 1400 acres. Of these 1400 acres, 700 acres are proposed to be actually dredged.

All 700 proposed acres are below mean high tide, or in other words are State wetlands. Code, Article 66C, sec. 719 (a); Bd. of Pub. Works v. Lamar Corp., supra. The Craney Island area is the habitat of diving ducks which dive beneath the water’s surface to retrieve food.

Perch, shad, herring and bass fish are also found in the area of Craney Island. 3. The Greenway Flats tract consists of two strips of land bordering on the Potomac River, one of which is ninety feet wide and the other five feet wide. Together they are 1.8 miles long. The proposed dredge site is 1000 acres, all of which are below mean high tide, again constituting State wetlands as defined in Code, Article 66C, sec. 719 (a) ; Bd. of Pub.

Works v. Larmar Corp., supra. Potomac Company paid $177.00 property tax in 1970 for its interest in this land. It has dredged approximately 7.7 million tons of sand and gravel out of this site, leaving it 90 % dredged. The area has been dredged from a depth of 10 feet to a depth of 50 feet below mean low water, a depth which Potomac Company intends, if so permitted, to dredge all three areas.

The Greenway Flats tract is the only site presently being dredged by Potomac Company, and this is being done pursuant to a temporary order of this court. It is significant that in Potomac Company’s deed of the Greenway Flats tract it is referred to as “Greenway Fishing Shore” and “Greenway Fishery”. ³⁶⁴ MARYLAND LAW RE: RIPARIAN RIGHTS AND RIGHTS TO SAND AND GRAVEL Prior to 1862 the rights of owners of riparian land in Maryland regarding the dredging, taking and carrying away of sand and gravel from the beds of navigable waters were primarily controlled by the common law. The common law provided that navigable waters were vested in the public: “Rivers or streams within the ebb and flow of tide, to high water mark, belong to the public, and in that sense are navigable waters; all the land below high water mark, being as much a part of the ‘jus publicum’, as the stream itself. The owners of adj acent ground had no exclusive right to such lands, nor could any exclusive right to their use be acquired, otherwise than by an express grant from the State.” Day v. Day, 22 Md. 530, 537 (1865).

In 1862, the Maryland Legislature enacted Laws of Maryland (1862), Chapter 129, vesting riparian owners in Maryland “with rights and privileges not recognized by the common law”, in particular the right to all accretions to riparian land by recession of water by natural causes or otherwise. Day v. Day, supra, page 537; Laws of Maryland (1862), Chapter 129. Between 1862 and 1888, the common law’s absolute prohibition on the taking of sand and gravel had deteriorated to the point that the Legislature of 1888 re-asserted its authority over the State’s wetlands. It did so by enacting Laws of Maryland (1888), Chapter 362.

Not at all dissimilar to Chapter 792, the validity of which is at issue in the case at bar, but broader in scope, Chapter 362 was a blanket prohibition against anyone from digging, dredging, taking and carrying away any sand, gravel or other material from the bed of the Potomac River, from its mouth to the uppermost boundary line of Prince George’s County. Chapter 362, as does Chapter 792, ³⁶⁵ provided criminal sanctions for violations, except that unlike Chapter 792 which imposes a fine only, Chapter 362 imposed a fine, confiscation of dredge, boat or vessel used in dredging, and imposed imprisonment of up to six months. 1 In 1900 the Legislature again slackened its absolute prohibition on the taking and carrying away of sand and gravel from the Potomac River by enacting Laws of Maryland (1900), Chapter 577. Chapter 577 excepted riparian owners on the Potomac River from Chapter 362’s prohibition and permitted them to take and carry away sand and gravel from the river bed subject only to non-interference with navigation, oystering and fishing. 2 This exception was extended in 1906, along with ³⁶⁶ the 1888 prohibition, to apply to all navigable waters in the State of Maryland. 3 The prohibition of 1888 and its exception and extension were codified in 1957 by Laws of Maryland (1957), Chapter 498, as Article 27, sec. 485. In 1970 the Legislature repealed Article 27, sec. 485, and replaced it with Laws of Maryland (1970), Chapter 241, Code, Article 66C, sec. 718 et seq.

(Wetlands Act of 1970). Under Section 721 of the Wetlands Act of 1970, it is unlawful for a riparian owner, without a license issued by the Board of Public Works, to dredge, take and carry away sand, gravel or other material from the bed of any of the navigable rivers, creeks or branches in Maryland. Bd. of Pub. Works v. Larmar Corp., supra, page 53.

Most recently, the Legislature enacted Chapter 792. Chapter 792, as hereinbefore recited, is more restrictive than the permit procedure of the Wetlands Act of 1970, but less prohibitive in geographical scope than Chapter 362, Laws of Maryland 1888. Potomac Company has filed application for the appropriate permits for dredging at the three named sites in compliance with the Wetlands Act of 1970. Hearings were held in December 1970 and April 1971.

Decision is withheld, pending this litigation. The basic conflict here is whether the legislature by enacting Public Local Law, Chapter 792, may absolutely prohibit anyone, including Potomac Company, from dredging, taking and carrying away sand and gravel from the tidal waters or marshlands of Charles County. ³⁶⁷ ISSUES The issues considered are: (1) whether Chapter 792 is unconstitutional as a taking of private property for a public use without just compensation, (2) whether Chapter 792 is a violation of equal protection by an arbitrary classification, (3) whether Chapter 792 is a violation of [the Constitution of Maryland,] Article III, sec. 33, [it being alleged that it is a] special law for which a general law, the Wetlands Act of 1970, is already enacted; and, (4) whether Chapter 792, as a penal statute, is unconstitutional as too vague and indefinite. (1) Chapter 792 is a legitimate exercise of the police power by the Legislature to regulate and restrain a particular use, that would be inconsistent with or injurious to the rights of the public, of property within the control of the State. Such regulation and restraint is not an unconstitutional taking of private property for public use without just compensation, as prohibited by the Fourteenth Amendment of the United States Constitution and Article 23 of the Declaration of Rights of the Constitution of Maryland.

An early Massachusetts case, Commonwealth v. Tewksbury, 11 Met. 55 (1846) responds on point. In Tewksbury , the Legislature enacted a statute similar to Chapter 792: “Any person who shall take, carry away or remove, by land or by water, any stones, gravel or sand, from any of the beaches in the town of Chelsea, excepting, C.’ shall, for each offense, forfeit a sum not exceeding twenty dollars, to be recovered, by complaint or indictment, in any court of competent jurisdiction.” This statute, as does Chapter 792, asserts an absolute prohibition on the taking, carrying away or removing of sand and gravel. Both are limited to single areas, ³⁶⁸ Chelsea and Charles County respectively, and both apply penal monetary sanctions for violations. In addition, the facts in Tewksbury and the case at bar are similar in that in both cases the statutes challenged were mere revisions of former statutes on the same subject. 4 The riparian owners in Tewksbury (p. 55) raised two issues expressly decided upon by the Court.

They asserted that as riparian owners in fee, the statute was not meant to apply to them. Secondly, the defendants alleged “. . . if the statute did so prohibit the owner, for any purpose of public benefit, from taking gravel from his own land, it was a taking of the land for the public use . . .” without compensation, in violation of the Massachusetts Declaration of Rights and that inasmuch as the statute did not make provision for compensation, it was unconstitutional and void. The Court denied both arguments, holding that the statute applied to “any person” in the absence of any ground to imply an exception, and that the statute was not a taking, but a just and legitimate exercise of the police power of the Legislature. Briefly, the Court found that whether or not the means adopted by the Legislature were proper or even constitutional, or within the powers of the Legislature, the unambiguous intent of the Legislature was to apply the statute to everyone.

In the case at bar, the language of Chapter 792 (b) is clear that its prohibition applies to “any person” violating its provisions. The Court in Tewksbury (pp. 57-58) responded to defendant’s contention that the statute was not a taking of property for public use: “All property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights of others, or to destroy or greatly impair the public rights and interests of the community; under the maxim of the common law, sic utere tuo ut alienum non laedas. ³⁶⁹ When the injury is plain and palpable, it may be a nuisance at the common law, to be restrained and punished by indictment. As where one bordering on a navigable river should cut away the embankment on his own land, and divert the water course so as to render it too shallow for navigation. But there are many cases where the things done in particular places, or under a particular state of facts, would be injurious, when, under a change of circumstances, the same would be quite harmless.

As the use of a warehouse for the storage of gunpowder, in a populous neighborhood, or for the storage of noxious merchandise, or the use of buildings for the carrying on of noxious trades, dangerous to the safety, health or comfort of the community. Whereas, in other situations, there would be no public occasion to restrain any use which the owner might think fit to make of his property. In such cases, we think, it is competent for the legislature to interpose, and by positive enactment to prohibit a use of property which would be injurious to the public, under particular circumstances, leaving the use of similar property unlimited, where the obvious considerations of public good do not require the restraint. This is undoubtedly a high power, and is to be exercised with the strictest circumspection, and with the most sacred regard to the right of private property, and only in cases amounting to an obvious public exigency.

Still, we think, the power exists, and has long been exercised in cases more or less analogous.” A change of circumstances as hypothicated in Tewksbury prompted the Maryland Legislature to enact Chapter 792. Dredging which has been prohibited and permitted at various times and to differing degrees in Maryland is now prohibited by Chapter 792 in a manner which the Legislature deemed necessary to protect the public ³⁷⁰ welfare. This court does not question the Legislature’s wisdom. Cohen v. Bredehoeft, 290 F. Supp. 1001, 1005 (1968) and cases cited therein.

Since Tewksbury was decided in 1846, the [courts have] refined the limits of the police power and fashioned appropriate tests. In Cohen v. Bredehoeft, supra, the Court said, at page 1005: “An exercise by the State of its police power is presumed to be valid when it is challenged under the due process clause. Bibb v. Navajo Freight Lines, 359 U. S. 520, 529 , 79 S. Ct. 962 , 3 L.Ed.2d 1003 (1959). A party attacking an ordinance on this basis has the burden of establishing its invalidity beyond reasonable doubt.

Standard Oil Co. v. City of Gadsden, 263 F. Supp. 502 (1967).” In due process questions in which there is an alleged taking without compensation, the first consideration is whether the statute is a taking by eminent domain requiring compensation, or a regulation of use under the State police powers. Chapter 792 is a regulation of use under the State police powers. In Goldblatt v. Town of Hempstead, 369 U. S. 590 , 82 S. Ct. 987 , 8 L.Ed.2d 130 (1962), the Supreme Court analyzed a fact pattern similar to that of the case at bar, except that it entailed pit excavation and dredging rather than dredging of State wetlands. In Goldblatt , the Court held that eminent domain was inapplicable.

Citing Mugler v. Kansas, 123 U. S. 623, 668-669 , 8 S. Ct. 273 , 31 L. Ed. 205 (1887), the Court said that a prohibition simply upon the use of a property for purposes that are declared by valid legislation to be injurious to health, morals or safety of the community, cannot be deemed a taking or an appropriation of property for public benefit. The Court went on to say that the owner could continue to use his property lawfully and that the owner could sell his property. The Court admitted that there were possible situations where regulation is so ³⁷¹ severe that it constitutes a taking, but that the burden is on the challenger of the statute, and the burden had not been met. Potomac Company cites State v. Johnson, 265 A. 2d 711 (Me., 1970), as a case in which, under the Maine Wetlands Act, the Court held that denial to a dredging company of a permit to fill marshlands was an unconstitutional taking of private property without compensation.

Potomac Company reasons that if denial of a permit is a taking, then absolute prohibition certainly is a taking. State v. Johnson is inapplicable. The Court limited its holding to the “facts peculiar to the case”. The case at bar is not concerned with a legislative sanction of dredging in Charles County with an administrative permit procedure.

Rather, the case at bar is a legislative prohibition. Chapter 792 was enacted less than a year after the Wetlands Act of 1970, and was intended to be more restrictive than the Wetlands Act of 1970. Finally, State v. Johnson is not the law in Maryland. Bd. of Pub.

Works v. Larmar Corp., supra, pages 54-55. Looking to the language of Chapter 792, it is a prohibition limited to dredging sand, gravel or other aggregates or minerals. This is a limitation upon a use of a property, not a taking. Chapter 792 is a valid exercise of the police powers.

It is within the purview of the police powers for the State to preserve its exhaustible natural resources. In Zabel v. Tabb, 430 F. 2d 199, 203-204