Worton Creek Marina, LLC v. Claggett

GREENE, J. We are asked to determine the validity of a Kent County ordinance that allows commercial boat moorings located within another riparian’s extended property line to remain in place through two months of the wild waterfowl hunting season, rendering the riparian’s waterfowl hunting blind sites unusable. The Maryland State Boat Act specifically provides that a local authority may not establish any regulation of a local nature that does not conform to the State’s regulations. The State regulation prohibits the placement of moorings that infringe on the rights of riparian property owners. The right to license riparian shorelines that meet specific requirements for the purpose of hunting wild waterfowl is a riparian property right.

The amended local ordinance is preempted by the State Boat Act because it permits an act prohibited by the State law. Furthermore, the local ordinance exceeds the authority delegated by the enabling legislation which requires the local ordinance to conform to the State program for the placement of buoys, mooring buoys, and other apparatus used to secure boats in the waters of the State. I. Marina Petitioners, Worton Creek Marina, LLC (“Worton Creek”), and Lankford Bay Marina, Inc. are marina owners in Kent County, Maryland. 1 The marinas are the beneficiaries of a “grandfather” provision of the Kent County Code that ⁵⁰³ permits group moorings in existence prior to July 1, 1980, at the discretion of the Public Landings and Facilities Board (“Board”), to continue to exist outside of their extended property lines. They are two of seven marinas in the County that have permits to maintain commercial moorings outside of their extended property lines. 2 The permit is obtained pursuant to Article 68 of the Code of Public Local Laws of Kent County (1994) (“KCC”), entitled “Boats and Boating.” On the opposite shoreline from Worton Creek Marina is 340 acres of land with more than 4,000 feet of shoreline owned by Herschell B. Claggett.

Fifty-four of the commercial boat moorings maintained by Worton Creek are located within Mr. Claggett’s extended property line, and in some instances are located within 100 feet of Mr. Claggett’s shoreline. Mr. Claggett is an avid waterfowl hunter who has licensed his shoreline for that purpose pursuant to Md.Code (1973, 2000 Repl.Vol.), §§ 10-607 to 10-609 of the Natural Resources Article (NRA). Pursuant to his license, Mr. Claggett established stationary blinds and off-shore blind sites located within his extended property line for use in the 2000-2001 hunting season. 3 The controversy in this matter arose when, in August of 2000, Mr. Claggett informed Worton Creek that he intended to use his licensed blind sites for the coming hunting season. Mr. Claggett asked the marina to remove all boats moored within his extended property line area by the September 1 start date of open waterfowl hunting season. 4 Worton Creek, ⁵⁰⁴ however, refused to remove the boats.

After unsuccessfully appealing to the Board for assistance with having the boats removed, Mr. Claggett filed, in the Circuit Court for Kent County, the first of two declaratory judgment actions naming the County Commissioners as defendants. Prior to August 17, 2001, KCC § 68-10, entitled “Mooring requirements,” contained a paragraph that stated: “Moorings in waterfowl-blind areas shall be cleared of boats during designated waterfowl hunting season unless written permission is given by the riparian property owner.” KCC § 68-10(G). In the first suit, Mr. Claggett sought, inter alia, a declaration from the Circuit Court regarding the meaning of “designated waterfowl season” as it was used in that section. After a hearing held on May 5, 2001, the Circuit Court issued a declaration stating that KCC § 68-10(G) “applies to all waterfowl hunting seasons in Kent County, Maryland as those seasons are, from time to time, designated by the Maryland Department of Natural Resources.” Additionally, the court ordered the removal of all boats interfering with Mr. Claggett’s hunting sites to a distance that would assure safe hunting from those sites.

The Commission did not appeal that decision. On May 1, 2001, Commission president, Ronald H. Fithian, introduced Bill No. 7-2001 to, inter alia, amend KCC § 68.10(G) to read as follows: All vessels on commercial mooring buoys shall be removed from the mooring buoys by November 1, in each year, until March 1 of the following year, unless written permission is given by the riparian property owner to maintain the vessels on the commercial mooring buoys which may be located in front of the riparian owner’s property between November 1, in each year, and March 1 of the following year. The amendment deleted the prior reference to “designated waterfowl season” as the deadline for removing commercial ⁵⁰⁵ moorings and replaced it with the November 1 deadline. The amendment was passed on July 3 and took effect on August 17, 2001.

On August 16, 2001, Mr. Claggett filed a second suit seeking a declaration that Bill No. 7-2001 and Chapter 68 of the Code are “illegal, unconstitutional, void and of no force and effect.” He also sought an injunction enjoining the Commission from enforcing the provisions of the Bill. On August 23, 2001, Worton Creek, joined by other local marinas, filed a motion to intervene. The motion was granted by the trial court and the marinas were designated parties to the suit. After an evidentiary hearing held on September 13, and a second hearing for closing arguments held on November 19, the Circuit Court ruled that the amended local regulation was in conflict with the DNR regulation which provides that a local regulation may not infringe upon the rights of any riparian owner.

The Court further found preemption by implication existed because the amended regulation conflicted with the comprehensive system for the licensing of water in front of riparian land for hunting wild waterfowl. On appeal, the Court of Special Appeals held that “the amendment to Kent County’s local boat mooring ordinance was preempted by conflict, of the ‘prohibit-permit’ sort, with the State Boat Act and regulations promulgated thereunder; and also was preempted by conflict, of the ‘frustration of purpose’ sort, with the State wild waterfowl laws.” County Commissioners of Kent County v. Claggett, 152 Md.App. 70, 95 , 831 A.2d 77, 91 (2003). With regard to the State Boat Act, the Court of Special Appeals found: As amended, however, the local ordinance permits for two months a year “grandfathered” marinas to use their moorings to do what the State Boat Act and accompanying regulations prohibit — infringe on the rights of riparian property owners to use their licensed shorelines for wild waterfowl hunting by surrounding their licensed blinds with boats. Because the local boat mooring ordinance permits ⁵⁰⁶ an activity prohibited by the State boat mooring laws, it is preempted by conflict.

Id. at 95-96 , 831 A.2d at 92 . In discussing the wild waterfowl laws, the Court of Special Appeals found: [E]ven though the fields of legislation are not the same, that is boat mooring and wild waterfowl hunting, the amended local boat mooring regulation in this case frustrates the purpose of the State blind site licensing laws by preventing holders of licensed shorelines from using them during part of the wild waterfowl season. The full purpose of the State waterfowl hunting laws set forth in NR 10-601 et seq. is to with strict regulation allow priorities of people, with riparian property rights having top preference, to license shorelines for hunting on their waters, by them or by others during the season designated by the DNR. The amended local ordinance in this case stands as an obstacle to that purpose, because it effectively prevents the license holders from being able to use their blind sites.

County Commissioners of Kent County, 152 Md.App. at 97 , 831 A.2d at 92-93 . We granted certiorari to consider these issues. Worton Creek v. Claggett, 378 Md. 614 , 837 A.2d 925 (2003).

II

KCC § 68-10(G), as amended, permits commercial group moorings to remain in waters that have been licensed by the State for the purpose of hunting wild waterfowl for two months of the open hunting season. The question is whether the amended local ordinance is preempted by the State Boat Act and the wild waterfowl hunting regulations. The Court of Special Appeals found that the amended local ordinance was preempted by the State Boat Act by application of the “prohibit-permit” type of preemption (see infra pp. 13-17), and, relying on the federal frustration of purpose case law, the Court also found that the amended ordinance frustrated the purpose of the State wild waterfowl laws. ⁵⁰⁷ The State Boat Act By adoption of Chapter 69, Acts of 1960, now codified at NR § 8-704, the General Assembly passed legislation authorizing DNR to adopt regulations “relating to the placement of buoys, mooring buoys, and other apparatus used to secure, berth, or moor vessels in the waters of the State.” NR § 8-704(b). The purpose of the statute is “to protect the public safety, welfare, and recreational interests in waters of the State.” Id.

The statute further provides that “[a] municipality or other local authority may not establish any regulation of a local nature which does not conform with the Department’s regulations.” NR § 8-704(d). Pursuant to the statute, DNR adopted regulations codified at COMAR 08.04.13.01 et seq. The stated purpose of the regulations is, to establish procedures and criteria for the placement of moorings in the waters of the State in order to prevent the placement and use of moorings from interfering with access to and use of the waters of the State by the general public and in order to protect public safety and welfare, commercial fisheries, and recreational interests in the waters of the State. COMAR 08.04.13.01(A).

Section 08.04.13.02 sets forth the general conditions for the placement of moorings. It regulates where moorings may and may not be located. Section 08.04.13.03 addresses the requirements for the establishment of group moorings. Section 08.04.13.04 establishes that either DNR or a local government “that has adequate legal authority to impose the conditions set forth in these regulations” will establish a registration program for all mooring facilities located within the jurisdiction of the locality.

The section further provides that if a local government chooses to administer its own program, “the local program may encompass all or part of the standards set forth in this regulation.” COMAR 08.04.13.04(B). Section 08.04.13.05 governs enforcement of the regulations. And lastly, section 08.04.13.06, entitled “Property Rights” provides “[t]he placement of a mooring pursuant to ⁵⁰⁸ these regulations does not create a property right or an exclusive privilege and does not authorize an infringement upon the rights of any riparian property owner.” Pursuant to NR § 8-704(d), Kent County developed a plan for local administration of a mooring program. The proposed “Mooring Buoy Regulations for Kent County” were submitted to DNR for review.

By letter dated September 9, 1980, the proposed regulations were determined to be “in compliance with COMAR regulation 08.04.13.04B.” The program as approved by DNR contained language requiring boats to be removed from moorings located within the area of licensed waterfowl blind sites by the beginning of wild waterfowl season. The amended version, however, replaces the reference to removal by the beginning of hunting season with a November 1 deadline — two months into the wild waterfowl hunting season. Petitioners argue that because COMAR 08.04.13.04(B) does not require local programs to encompass all of the standards set forth in the State program, the local program is not required to adopt language similar to COMAR 08.04.13.06, which prohibits the placement of moorings that infringe upon the rights of riparian property owners. They further argue that the right to license riparian shorelines for the purpose of hunting wild waterfowl is not a riparian right within the meaning of COMAR.

We begin by discussing the second contention first. Riparian Rights A person who owns property bordering on, bounded by, fronting upon, abutting or adjacent and contiguous to a body of water is known as a riparian. Becker v. Litty, 318 Md. 76, 82 , 566 A.2d 1101, 1104 (1989) (internal citation omitted). In addition to the traditional property rights that accompany the ownership of land, riparian property ownership includes rights regarding the use of the water that borders the land.

Those rights are created by both common law and by statute. Id. ⁵⁰⁹ At common law, “the fundamental riparian right — on which all others depend, and which often constitutes the principal value of land — [was] access to water.” People’s Counsel for Baltimore County v. Maryland Marine Manufacturing Co., Inc., 316 Md. 491, 502 , 560 A.2d 32, 37 (1989) (quoting Steinem v. Romney, 233 Md. 16, 23 , 194 A.2d 774, 777 (1963)). The rights were “generally limited to accretion and reliction.” People’s Counsel, at 501, 560 A.2d at 37 . Common law riparian rights, however, are not the only ones recognized in Maryland.

The General Assembly has by statute granted riparian property owners additional rights. See Harbor Island Marina v. Bd. of County Commissioners of Calvert County, 286 Md. 303, 316 , 407 A.2d 738, 745 (1979) (“Beginning in 1745, and throughout the ensuing years, there have sporadically been legislative enactments recognizing, expanding, and redefining the rights and privileges riparian owners were entitled to exercise in the tidal waters abutting their lands.”) (Internal citations omitted.) Those statutory rights include the right to make improvements into the water in front of riparian property, (see People’s Counsel, 316 Md. at 502-503 , 560 A.2d at 37-38 , and cases cited therein), 5 and a preference in obtaining a license for the establishment of offshore stationary blinds or blind sites for hunting wild waterfowl in the water in front of riparian property. Md.Code (1973, 2000 Repl.Vol.), § 10-607 of the Natural Resources Article. See also, Dep’t of Natural Resources v. Adams, 37 Md.App. 165, 177 , 377 A.2d 500, 507 (1977) (stating that “the duck blind laws are designed to protect and to give priority to riparian owners”).

Statutory rights may “extend beyond what the common law allowed,” (People’s Counsel, 316 Md. at 503 n. 6, 560 A.2d at 38 n. 6 (quoting Garitee v. City of Baltimore, 53 Md. 422, 432 (1880))), and be based on more than “the mere access to the navigable portions of the water.” People’s ⁵¹⁰ Counsel, 316 Md. at 504 , 560 A.2d at 38 (internal citation omitted). The wild waterfowl hunting laws are codified at Md.Code (1973, 2000 Repl.Vol.) § 10-601 et. seq. of the Natural Resources Article. The statute provides in relevant part: (b) Riparian landowners may license their riparian shoreline: (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. NR § 10-607(b).

To maintain an offshore blind site, the riparian property owner must own at least 250 yards of shoreline, have the permission of a neighboring property owner to tack the neighbor’s shoreline on to the license seeker’s shoreline to achieve the requisite yardage, or demonstrate that no other shoreline is licensed within 125 yards of the property line. NR § 10-607(d). In Kent and Queen Anne’s Counties, as well as the nontidal waters of the Potomac River and its nontidal tributaries, the right to license the shoreline is an exclusive right of riparians owning at least 250 yards of continuous shoreline. NR § 10-608(g).

A riparian license application must be submitted to DNR by June 1 of each year. NR § 10-607(h)(1)(i)(1). Non-riparian owners, however, may not obtain a license for an offshore blind site until the first Tuesday in August of