Tangier Sound Watermen's Assoc. v. Douglas, Civ. A. No. 81-0229-R.

Citation541 F. Supp. 1287
Decision Date25 June 1982
Docket NumberCiv. A. No. 81-0229-R.
PartiesTANGIER SOUND WATERMEN'S ASSOC., et al., v. James E. DOUGLAS, Jr., Comm'r, Virginia Marine Resources Commission, et al., Defendants, and Maryland Dept. of Natural Resources, Defendant/Intervenor.
CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)

Alfred J. Owings, Spinella, Owings, Jackson & Steverson, Richmond, Va., Thomas N. Biddison, Jr., Thomas B. Lewis, Gallagher, Evelius & Jones, Baltimore, Md., for plaintiffs.

Brian L. Buniva, Frederick S. Fisher, Asst. Attys. Gen., Richmond, Va., for defendants.

Thomas A. Deming, Asst. Atty. Gen. of Maryland, Dept. of Natural Resources, Annapolis, Md., Anthony F. Troy, James E. Ryan, Jr., David G. Shuford, Mays, Valentine, Davenport & Moore, Richmond, Va., for defendant/intervenor.

MEMORANDUM OPINION

WARRINER, District Judge.

I

This action involves a constitutional challenge to several Virginia statutes that deny to nonresidents the right to commercially harvest blue crabs in the Virginia waters of Chesapeake Bay. Section 28.1-165 of the Virginia Code provides commercial crabbing licenses may be issued only to Virginia residents. Section 28.1-57 of the Virginia Code makes it a misdemeanor for a nonresident of the State to take or catch "fish" in any of the tidal waters of Virginia in any other way "than by line, rod, or pole held in hand."1 The term "fish" is defined by the Code to include, inter alia, "crustaceans ... and all other seafood." Thus crabs are fish within the meaning of the statute. Va. Code § 28.1-2 (1979). Similarly, section 28.1-122 of the Virginia Code makes it a misdemeanor for any nonresident to "take or catch fish or shellfish, in any waters of Virginia or at any of the waters under the jurisdiction of Virginia, for market or profit." And, section 28.1-123 of the Virginia Code makes it a misdemeanor for a Virginia resident who for market or profit, is "concerned or interested" with any nonresident in taking or catching fish or shellfish in Virginia waters, or who knowingly permits a nonresident to engage in any such business.

Plaintiff Tangier Sound Watermen's Association (hereinafter "Association") is an unincorporated association of about 120 commercial fishermen residing in Maryland in communities on Smith Island and in the vicinity of Crisfield, Maryland, on the Eastern Shore of the Chesapeake Bay. Members of the Association are full-time or part-time crabbers. Several members of the Association have applied to the Virginia Marine Resources Commission for crabbing licenses and have received letters of refusal based on their nonresidency status. Thus, they are limited to crabbing in Maryland waters because of Virginia's residency laws.

The individual plaintiffs are all members of the Association and residents of the Maryland portion of Smith Island which itself is divided at its southern tip by the State boundary between Maryland and Virginia. Elmer W. Evans, President of the Association, derives approximately 95% of his annual income from the catching and selling of blue crabs. His vessel has been issued a permanent federal license of the type for vessels between five and twenty tons which are employed in carrying on the "mackerel fishery". See 46 U.S.C. § 251 et seq. In good weather it is practical for Evans to set crab pots within a range of up to 20 miles from his home port but the State boundary line effectively cuts in half the crabbing grounds which would otherwise be within range of Evans' vessel. The crabs which Evans does catch are sold to several buyers, including packers in Maryland, and markets in New York, Maryland, Washington, D. C., and Philadelphia.

Edwin C. Smith, III, derives approximately 50% of his annual income from the catching and selling of blue crabs. He supplements his income by buying and transporting crab bait from Virginia to Smith Island. Smith's vessel has been issued the same federal license as Evans. In good weather, it is practical for Smith to operate within a daily range of about 15 miles of his home port, but he too is limited by the location of the State boundary. His catch is sold to several buyers, including a packer in Crisfield, Maryland, and restaurants at Solomon's Island, in Maryland.

David L. Laird derives approximately 66% of his annual income from the catching and selling of blue crabs, principally soft crabs or "peelers". Laird owns and operates a crabbing skiff which because it is under five tons displacement does not qualify for federal licensing. It is, however, of typical size and type of crab scraper's boats for this area. In good weather, it is practical for Laird to operate within a range of 5 miles of his home port. Laird's catch is sold to several buyers, including packers in Crisfield, Maryland, wholesale fish dealers in Baltimore, and at the Fulton Fish Market in New York City.

The defendants are the Commonwealth of Virginia, the Virginia Marine Resources Commission, which is the State administrative body charged with the enforcement of the fishery laws of Virginia, and James E. Douglas, Jr., the Commissioner of Marine Resources for Virginia and as such is the chief administrative officer of the State agency charged with enforcing the fishery laws of Virginia. The Maryland Department of Natural Resources moved to intervene as a party defendant on grounds that it was the agency charged with upholding a similar statutory scheme for the State of Maryland, and its motion was granted.

The instant litigation centers on the Atlantic Blue Crab which is an important commercially harvestable species of crustacean which is caught throughout the Chesapeake Bay and in the waters of the Atlantic Ocean along the east coast. The blue crab in following an annual migratory cycle, at times burrows beneath the floor of the Bay, crawls along its bottom, swims agilely through its waters, or meanders among the eel grasses at its margin. The blue crab is thus distinct from both the sedentary shellfish, such as an oyster, and the more mobile fin fishes. During the winter months male crabs migrate into the deeper channels in the center of the Bay and female crabs gather in the southerly portions of the Bay near the mouth. Both spend the winter submerged in the mud on the Bay floor. In the spring, the crabs emerge from their respective wintering grounds and join one another in the shallower, fresher tributaries and edges of the Bay where they spawn, hatch crab larvae, and feed among batches of eel grass or marsh vegetation. This annual cycle causes millions of crabs each year to traverse the boundary between Maryland and Virginia.2

The mobility of the adult crab also allows the species to adjust to changing conditions of salinity. With low rainfall, more saline waters move further up the Bay as do associated crab concentrations; after heavy rains crab populations are found in deeper, southern Bay waters. Year-to-year crab concentrations are found in those areas of the Bay experiencing reasonably stable cycles of salinity. However, commercial concentrations of blue crabs are widespread in the Bay, and are found in most Bay tributaries, with greatest abundance found along the Eastern Shore, most notably in Eastern Bay.

The optimum sustainable yield of blue crabs, which is the maximum harvest of crabs which can be obtained without creating any adverse impacts to the ability of the population to sustain itself, has yet to be determined for the Chesapeake Blue Crab Fishery. Such information as there is indicates that blue crab landings generally increased from the 1880's to the middle 1960's. Although landings have been subject to extensive fluctuations within relatively short periods of time,3 these variations have tended to fluctuate near the mean throughout the years 1952 to 1979.4

The migratory nature of crabs requires the crabbing industry to accommodate itself to the wanderings of its quarry. However, during the several weeks each spring and fall when the migrating crabs have either not reached Maryland waters or have abandoned Maryland waters for the winter, plaintiffs are unable to fish in areas south of the Virginia boundary where crabs are yet abundant. Even during the summer season there are periods when crabs are relatively scarce in the areas near Smith Island north of the State line and plaintiffs again are barred from crabbing in nearby Virginia waters where there may be greater numbers of crabs available. All of the individual plaintiffs indicate that they are ready, willing, and able to crab in Virginia waters subject to the same restrictions as imposed upon Virginia watermen and that the sole reason that they do not do so now is that Virginia law excludes them. Defendants Douglas and the Virginia Marine Resources Commission have consistently refused to permit nonresidents including certain members of the Association, from commercially harvesting crabs.

Both Virginia and Maryland have substantial blue crab industries and for many years each State has regulated the exploitation of its blue crab resources in part by limiting commercial crabbing to the citizens of their respective States. This suit challenges the continuation of that practice in Virginia. Efforts to achieve a legislative solution have been unsuccessful. Faced with this complaint it falls to this Court to reach a determination as to the constitutionality of the present system. Virginia, notwithstanding the exclusion of nonresidents, imposes no limit on the number of Virginians who may commercially harvest crabs but does require each commercial crabber, crab buyer, or processor to obtain a license from the Virginia Marine Resources Commission upon payment of a tax which varies depending upon the type of gear used. See Va.Code § 28.1-165 (1979). There are also statutory regulations governing the various types of gear that may be used, see e.g., Va.Code § 28.1-166 (1979), the composition (but not the quantity) of one's catch, Va.Code § 28.1-167 (...

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