Va. Marine Res. Comm'n v. Inn
| Decision Date | 14 August 2012 |
| Docket Number | Record No. 0086–12–1. |
| Citation | 60 Va.App. 585,731 S.E.2d 6 |
| Parties | VIRGINIA MARINE RESOURCES COMMISSION v. CHINCOTEAGUE INN and Raymond Britton. |
| Court | Virginia Court of Appeals |
OPINION TEXT STARTS HERE
Paul Kugelman, Jr., Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Elizabeth A. Andrews, Senior Assistant Attorney General; David C. Grandis, Assistant Attorney General, on briefs), for appellant.
Jon C. Poulson for appellees.
Present: ELDER, FRANK and HUMPHREYS, JJ.
Appellant, the Virginia Marine Resources Commission (VMRC), appeals from an order of the circuit court of Accomack County, holding that VMRC lacked jurisdiction to order appellee, the Chincoteague Inn (the Inn), to remove a floating platform from over state-owned bottomland. VMRC argues the circuit court erred in ruling that VMRC considered the floating addition a vessel where VMRC made no such determination. VMRC also alleges the circuit court erred in holding that VMRC had no jurisdiction to order the removal of the floating platform. Finally, VMRC assigns error to the circuit court's award of fees and costs to the Inn. For the reasons stated, we reverse and remand.
On June 15, 2010, VMRC wrote to Raymond Britton, as manager of the Inn, notifying him that he needed to remove a portion of an unauthorized floating platform next to the Inn, because the platform was in violation of Code § 28.2–1212(B). VMRC subsequently brought the matter before its Commission for enforcement action.
On August 24, 2010, the Commission held a hearing and heard argument. By letter dated August 26, 2010, VMRC informed the Inn that the Commission found the floating addition to be an unlawful use of state-owned bottomland, in violation of Code § 28.2–1203, and ordered the portion of the platform over state-owned bottomland to be removed within ten days.
The Inn mailed a notice of appeal on September 23, 2010. On October 14, 2011, the circuit court of Accomack County heard the appeal and ruled the VMRC lacked jurisdiction over the floating platform. At that time, the circuit court deferred ruling on the Inn's request for fees and costs.
The circuit court issued its final order on December 20, 2011, finding that VMRC lacked jurisdiction to order the removal of the floating platform. The circuit court also ruled that the Inn had substantially prevailed and awarded attorney's fees and costs.
In June of 2010, VMRC learned that a large floating platform had been placed adjacent to the Inn and was reportedly over state-owned bottomland. VMRC conducted a site inspection on June 11, 2010 and determined that at least part of the platform was not over state-owned bottomland. On June 15, VMRC sent the Inn a notice to comply, through Britton, regarding the unauthorized portion of the floating platform. The notice gave the Inn ten days to remove the illegal portion of the platform.
On June 22, VMRC sent another letter to the Inn, stating that failure to remove the floating platform would result in VMRC enforcement action. A site inspection on June 28 showed that the platform had not been removed.
VMRC held a hearing on August 24. At the hearing, Britton testified that the floating platform had a bar, tables, and a gangplank leading to the Inn's restaurant. Britton intended to use the platform for four months, to accommodate seasonal restaurant and bar overflow. Britton also testified that the platform was a barge normally used in his construction business and therefore was a vessel, noting that on July 19, 2010, the barge was disconnected from electric and water lines, taken out of its slip by its normal push boat, taken up Chincoteague Channel to the old drawbridge, then returned to its slip and reconnected, all in 32 minutes.
After considerable debate over whether the Commission had jurisdiction over a vessel, the Commission ultimately concluded that the “floating structure” was an unlawful use of state-owned bottomland and directed the Inn to remove the offendingportion of the platform under VMRC's jurisdiction within ten days. The Commission never made a finding that the structure was a vessel.
On September 16, 2010, VMRC notified the Inn that because it had not removed the platform from the Inn, it was violating the Commission's order. VMRC then referred the matter to the Attorney General to petition the appropriate circuit court for an order requiring removal of part of the platform, as well as the assessment of civil penalties.
The Inn mailed a notice of appeal to VMRC on September 23, 2010. On appeal to the circuit court, Britton argued that VMRC lacked jurisdiction over a temporarily moored barge or vessel because federal maritime law preempts state regulation over any vessel. On October 14, 2011, the circuit court heard argument and accepted the Inn's position, ruling that VMRC lacked jurisdiction over the platform adjacent to the Inn, as it was moored and docked, not permanently attached to land, and because it was capable of being moved from place to place in navigable waters.
This appeal follows.1
VMRC first contends the circuit court erred when it ruled that VMRC considered the floating addition a vessel where VMRC made no such determination and where making this determination is beyond the scope of a circuit court's review of an administration case decision. The Inn argues that this issue is waived. We agree with the Inn that this argument was not preserved in the circuit court. At oral argument, VMRC conceded the issue was not preserved and that the structure in question was a vessel.
VMRC next contends the circuit court erred in finding that VMRC did not have any jurisdiction to order the removal of the portion of the floating addition over state-owned bottomland.2
Here, we review whether the circuit court correctly ruled VMRC had no jurisdiction because the structure in question is a vessel. The issue, as framed by both parties and as presented at oral argument, is whether federal maritime law preempts the state's ability to order the removal of the structure. The Commission never ruled on federal preemption.
The preemption issue is one of law. Code § 2.2–4027 of the Virginia Administrative Process Act (VAPA) allows judicial review of an agency decision.
Under VAPA, the circuit court reviews an agency's action in a manner “ ‘equivalent to an appellate court's role in an appeal from a trial court.’ ” J.P. v. Carter, 24 Va.App. 707, 721, 485 S.E.2d 162, 169 (1997) (quoting Sch. Bd. v. Nicely, 12 Va.App. 1051, 1061–62, 408 S.E.2d 545, 551 (1991)). “In this sense, the General Assembly has provided that a circuit court acts as an appellate tribunal.” Gordon v. Allen, 24 Va.App. 272, 277, 482 S.E.2d 66, 68 (1997) (citation omitted). “The burden is upon the party complaining of the agency action to demonstrate an error of law subject to review.” Johnston–Willis, Ltd. v. Kenley, 6 Va.App. 231, 241, 369 S.E.2d 1, 6 (1988) (citing Code § 9–6.14:17; Roanoke Memorial Hospitals v. Kenley, 3 Va.App. 599, 603, 352 S.E.2d 525, 527 (1987)).
Under the “substantial evidence” standard, the reviewing court may reject an agency's factual findings only when, on consideration of the entire record, a reasonable mind would necessarily reach a different conclusion. Alliance to Save the Mattaponi v. Commonwealth Dep't of Envtl. Quality ex rel. State Water Control Bd., 270 Va. 423, 441, 621 S.E.2d 78, 88 (2005) (citing Aegis Waste Solutions v. Concerned Taxpayers, 261 Va. 395, 404, 544 S.E.2d 660, 665 (2001)).
Although we are bound on appeal to the trial court's findings of historical fact, Dep't of Med. Assistance Servs. v. Beverly Healthcare of Fredericksburg, 41 Va.App. 468, 490, 585 S.E.2d 858, 869 (2003), we review questions of law de novo. See Clark v. Marine Res. Comm'n, 55 Va.App. 328, 334–35, 685 S.E.2d 863, 866 (2009) (citing Moreau v. Fuller, 276 Va. 127, 133, 661 S.E.2d 841, 845 (2008)).
[J]udicial review of a legal issue requires little deference, unless it ... falls within an agency's area of particular expertise. Whether the issue is one of law or fact or substantial evidence, we are directed to take account of the role for which agencies are created and public policy as evidenced by the basic laws under which they operate. Thus, the degree of deference afforded an agency decision depends upon not only the nature of the issue, legal or factual, but also upon whether the issue falls within the area of experience and specialized competence of the agency.
Appalachian Voices v. Air Pollution Control, 56 Va.App. 282, 289, 693 S.E.2d 295, 298 (2010) (internal citations and quotations omitted).
VMRC challenges the circuit court's ruling that the Commission had no jurisdiction to order the removal of a portion of the floating structure. Specifically, VMRC contends it does have jurisdiction to order cessation of encroachments over state-owned bottomlands and that federal maritime jurisdiction does not preempt state jurisdiction. The Inn responds that the structure is a moored vessel and is subject exclusively to federal admiralty or maritime law. The Inn further argues that any state attempt to regulate a moored vessel is preempted by federal law if the state law is inconsistent with federal law.3
Essentially, our analysis is whether the vessel in question is state- or federally-regulated. We begin by acknowledging that “the operation of a boat on navigable waters, no matter what its size or activity, is a traditional maritime activity to which the admiralty jurisdiction of the federal courts may extend.” St. Hilaire Moye v. Henderson, 496 F.2d 973, 979 (8th Cir.1974). However, assuming maritime law is applicable, it does not necessarily follow that state regulations are preempted. According to McCready v. Commonwealth, 68 Va. (27 Gratt.) 985,aff'd,94 U.S. 391, 24 L.Ed. 248 (1876), the navigable waters within...
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Va. Marine Res. Comm'n v. Inn
...a “vessel,” and noted that the Commission had conceded that the structure was indeed a “vessel.” Virginia Marine Res. Comm'n v. Chincoteague Inn, 60 Va.App. 585, 590, 731 S.E.2d 6, 8 (2012). The panel, however, also held that under the facts of this case federal maritime law did not preempt......
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Va. Marine Res. Comm'n v. Chincoteague Inn, Record No. 0086–12–1.
...this Court on a rehearing en banc from a published panel decision rendered on August 14, 2012. See Va. Marine Res. Comm'n v. Chincoteague Inn, 60 Va.App. 585, 731 S.E.2d 6 (2012). The Virginia Marine Resources Commission (“VMRC”) initially appealed an order of the Circuit Court of Accomack ......