Marina v. Claggett, No. 90, September Term, 2003 (MD 6/7/2004)

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WORTON CREEK MARINA, LLC, ET AL. v. HERSCHELL B. CLAGGETT.

No. 90, September Term, 2003.

Court of Appeals of Maryland.

Filed: June 7, 2004.

In the Circuit Court for Kent County, Civil No. 14-C-01-5025.

Bell, C.J., Raker, Wilner, Cathell, Harrell, Battaglia, Greene, JJ.

Opinion by 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 pro perty 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 be cause 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 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 extend ed 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 offshore 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, 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 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 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.

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...