Hollowell v. VA. MARINE RESOURCES COM'N

• Decision Date: 20 April 2010
• Docket Number: Record No. 0948-09-1.
• Court: Virginia Court of Appeals
• Parties: Robert HOLLOWELL v. VIRGINIA MARINE RESOURCES COMMISSION.

691 S.E.2d 500

56 Va. App. 70

Robert HOLLOWELL v. VIRGINIA MARINE RESOURCES COMMISSION.

Record No. 0948-09-1.

Court of Appeals of Virginia, Chesapeake.

April 20, 2010.

Lee Anne Washington for appellant.

Carl Josephson, Senior Assistant Attorney General (William C. Mims, Attorney General; Roger L. Chaffe, Senior Assistant Attorney General, on brief), for appellee.

Present: HUMPHREYS, McCLANAHAN, JJ., and WILLIS, S.J.

McCLANAHAN, Judge.

Robert Hollowell appeals from an order of the circuit court: (i) holding that 4 VAC 20-140-20, promulgated by the Virginia Marine Resources Commission (VMRC) in regard to regulating crab dredging, exceeded the authority given to VMRC in the enabling legislation (Code § 28.2-707); (ii) setting aside part of the regulation; and (iii) directing VMRC to amend it. Hollowell also appeals from the circuit court's subsequent order denying his request for attorney's fees incurred in challenging the validity of the regulation.

Hollowell argues the circuit court erred, first, in not striking the entire regulatory scheme upon concluding that part of it was unlawful; and, second, in denying his request for attorney's fees under Code § 2.2-4030 based on rulings that he "did not substantially prevail on the merits of the case" and that VMRC's position "was substantially justified." For the following reasons, we conclude Hollowell's appeal of the circuit court's decision to set aside only part of 4 VAC 20-1140-20 has been rendered moot, and we thus dismiss that portion of this appeal. We agree with Hollowell, however, that he is entitled to attorney's fees under Code § 2.2-4030, and remand this claim to the circuit court for a determination of reasonable attorney's fees to be awarded to him.

I. BACKGROUND

Code § 28.2-707(D), as last amended in 1996, provides as follows:

It is unlawful to use a dredge for catching crabs between April 1 and December 1; however, the Commission, when in its judgment it is advisable due to weather conditions or for purposes relating to the conservation of the blue crab and it is not contrary to the public interest, may close a season in its entirety, may open any season as early as November 16, may delay opening any season, may extend any season until April 16 and may close any season early.

* * * * * *

Any person who violates any provision of this section is guilty of a Class 3 misdemeanor.

The effect of the statute is to legalize the dredging of crabs for the period from December 1 until March 31 from year to year, commonly referred to as "crab dredging season," absent authorized action by VMRC.

Based on Code § 28.2-707(D), VMRC promulgated a new set of regulations, designated as Chapter 1140, and consisting of 4 VAC 20-1140-10 through 4 VAC 20-1140-30 (the "new regulations"), which became effective on April 30, 2008. In VMRC's summary of the new regulations at the time they were published in "Final" form, as set forth in the Virginia Register of Regulations, Volume 24, Issue 19, p. 2763 (May 26, 2008), VMRC stated, "The chapter prohibits crab dredging in Virginia's tidal waters." The primary regulation, 4 VAC 20-1140-20, entitled "Crab dredging prohibited," provided in relevant part as follows:

The season to use a dredge for catching crabs is closed.

It shall be unlawful for any person to use a dredge for catching crabs from the waters of the Commonwealth.

4 VAC 20-1140-20(A) & (B).¹

Hollowell, a commercial waterman, filed a "petition for appeal" in circuit court in May 2008 challenging the new regulations, pursuant to Code § 28.2-215.² As explained in the circuit court's April 3, 2009 letter opinion, Hollowell's position was that Code § 28.2-707(D) granted VMRC "the authority to prohibit dredging for crabs for one period of December 1—March 31 at a time." Yet, 4 VAC 20-1140-20 "read as a whole," according to Hollowell, "prohibited the dredging of crabs for an indefinite period of time."³ As to VMRC's position, it agreed with Hollowell that the dredging "prohibition" in the regulation was "not limited to the period of December 1, 2008—March 31, 2009, but applied to subsequent years as well." VMRC, however, contended that the enabling statute authorized VMRC to promulgate a single regulation that was of open-ended duration to prohibit the dredging of crabs in the waters of the Commonwealth.

The circuit court agreed with Hollowell's reading of Code § 28.2-707(D), and rejected VMRC's interpretation. The court held that the statute only gave VMRC "the authority to close any individual one of the annually occurring crab-dredging seasons," i.e., one crab dredging season at a time vis-à-vis one regulation at a time. As the court explained:

Had the General Assembly intended to give the VMRC unlimited power to prohibit crab dredging for multiple seasons at a time without the necessity of further action or public hearings, it could have done so in very plain simple language.... This makes sense in that the limitation of the VMRC's power to closing one annual season at a time only serves to require annual review and annual Commission action. It still allows for multiple consecutive seasons to be closed within that administrative framework.

The circuit court also agreed with Hollowell that 4 VAC 20-1140-20 "exceeded the authority granted by Virginia Code Section 28.2-707 in that subsection B of the regulation prohibited crab dredging indefinitely beyond the period of December 1, 2008— March 31, 2009."

Consistent with the circuit court's April 3, 2009 letter opinion, it ordered on the same day "that 4 VAC 20-1140-20.B be set aside," and "remanded the matter to VMRC to amend 4 VAC 20-1140-10 et seq. by striking the current version of 4 VAC 20-1140-20.B and ... clarifying that 4 VAC 20-1140-20.A pertains only to the December 1, 2008— March 31, 2009 crab-dredging season."⁴

Hollowell subsequently filed a motion for attorney's fees pursuant to Code § 2.2-4030. The statute provides, in relevant part:

In any civil case ... in which any person contests any agency action as in this case, such person shall be entitled to recover from that agency ... reasonable costs and attorneys' fees if such person substantially prevails on the merits of the case and the agency's position is not substantially justified, unless special circumstances would make an award unjust. The award of attorneys' fees shall not exceed $25,000.

Code § 2.2-4030(A). By order dated April 22, 2009, the circuit court denied the motion, finding that Hollowell did not substantially prevail on the merits of the case and that VMRC's position was substantially justified.

On May 4, 2009, Hollowell filed his notice of appeal to this Court. In this appeal, Hollowell contends the circuit court erred (i) in not striking the new regulations entirely, given its holding that the primary regulation, 4 VAC 20-1140-20, was unlawful, and (ii) in denying Hollowell's motion for attorney's fees.

On June 1, 2009, VMRC finalized amendments to 4 VAC 20-1140-20 consistent with the circuit court's ruling by prohibiting crab dredging in Virginia waters only for the upcoming crab dredging season. See Virginia Register of Regulations, Vol. 25, Issue 21, p. 3793 (June 22, 2009). As amended, subsection B of the regulation was struck in its entirety, and subsection A was changed to read: "In accordance with the provisions of § 28.2-707 of the Code of Virginia, the crab dredging season of December 1, 2009, through March 31, 2010 is closed, and it shall be unlawful to use a dredge for catching crabs from the waters of the Commonwealth during that season." 4 VAC 20-1140-20(A).

II. MOOTNESS OF CHALLENGE TO CIRCUIT COURT'S DISPOSITION OF REGULATION

In response to Hollowell's appeal of the circuit court's decision to set aside only part of 4 VAC 20-1140-20 rather than all three of the new regulations in their entirety, after determining that 4 VAC 20-1140-20 was unlawful, VMRC asserts that this issue was rendered moot by VMRC's amendments to the regulation, which were finalized after Hollowell filed this appeal. We agree.

It is this Court's duty "`to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'" Harrison v. Ocean View Fishing Pier, LLC, 50 Va.App. 556, 570, 651 S.E.2d 421, 428 (2007) (quoting Potts v. Mathieson Alkali Works, 165 Va. 196, 225, 181 S.E. 521, 533 (1935)). A "case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 1390, 146 L.Ed.2d 265 (2000) (citation and some internal quotation marks omitted). Accordingly, "dismissal is the proper remedy" when an event occurs while a case is pending on appeal that renders it moot—that is, "`renders it impossible'" for this Court to grant appellant the relief requested. Jackson v. Marshall, 19 Va.App. 628, 635, 454 S.E.2d 23, 27 (1995) (quoting Hankins v. Town of Virginia Beach, 182 Va. 642, 644, 29 S.E.2d 831, 832 (1944)).

Hollowell challenged 4 VAC 20-1140-20 on the grounds that it prohibited dredging of crabs for an indefinite period of time, whereas the enabling legislation, Code § 28.2-707(D), only authorized VMRC to prohibit such dredging one season at a time—extending from December 1 until March 31 from year to year. Agreeing with this interpretation of both Code § 28.2-707(D) and 4 VAC 20-1140-20, the circuit court ordered VMRC to amend the regulation, which VMRC proceeded to do. But the amended regulation did not go into effect until nearly a month after Hollowell filed this appeal. Nevertheless, in light of those amendments to the regulation, "the regulation at issue below is no longer in force," Princeton Univ. v. Schmid, 455 U.S. 100, 103, 102 S.Ct. 867, 869, 70 L.Ed.2d 855 (1982) (per curiam) (holding that university's amendment...