Potomac Sand & Gravel Co. v. Governor of Md.

• Decision Date: 06 July 1972
• Docket Number: No. 35,35
• Citation: 293 A.2d 241,266 Md. 358
• Parties: , 2 Envtl. L. Rep. 20,466 POTOMAC SAND AND GRAVEL COMPANY v. GOVERNOR OF MARYLAND et al.
• Court: Maryland Court of Appeals

Page 358

266 Md. 358

293 A.2d 241, 2 Envtl. L. Rep. 20,466

POTOMAC SAND AND GRAVEL COMPANY v. GOVERNOR OF MARYLAND et al.

No. 35.

Court of Appeals of Maryland.

July 6, 1972.

James J. Doyle, Jr., Baltimore (John B. Jaske, Sherbow, Shea & Doyle, Baltimore, and Victor H. Laws, Salisbury, on the brief), for appellant.

Maryland Conservation Council and others, Timothy J. Bloomfield, George W. Wise and Alvin Ezrin, Washington, D. C., on the brief, amicus curiae.

Henry R. Lord, Deputy Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, and Warren K. Rich, Sp. Asst. Atty. Gen., Annapolis, on the brief), for appellees.

Argued before HAMMOND, ^* C. J., BARNES, McWILLIAMS and SMITH, JJ., and KENNETH C. PROCTOR, Special Judge.

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 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 which 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 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 acquatic 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 acquatic 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 interest 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 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. Larmar 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'.

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 adjacent 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 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 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...