VMRC v. Chincoteague Inn ( 2014 )

Present: All the Justices
VIRGINIA MARINE RESOURCES COMMISSION
OPINION BY
v. Record No. 130239 JUSTICE LEROY F. MILLETTE, JR.
April 17, 2014
CHINCOTEAGUE INN, ET AL.
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we consider whether the Court of Appeals
erred in holding that the Virginia Marine Resources Commission
lacked authority under Virginia law to regulate the expansion
of the Chincoteague Inn's restaurant operations onto a floating
platform secured alongside its building and situated partially
over state-owned subaqueous bottomland.
I. Facts and Proceedings
A. Relevant Facts
The Chincoteague Inn is a restaurant that sits adjacent to
the Chincoteague Channel in the town of Chincoteague, Virginia.
In late April and early May 2010, the Inn lashed together two
steel barges, held the barges in place, and connected those
barges to the Inn by way of a gangway to create a floating
platform. Later, in June 2010, the Inn removed one of those
barges and the floating platform was resituated alongside the
Inn. The Inn intended to keep the floating platform positioned
alongside its building to be used as part of the Inn's
restaurant sitting and dining area for approximately four
months until September 2010.
The Inn's plans were interrupted when an unidentified
competitor complained to the Virginia Marine Resources
Commission that the Inn had added a "large floating platform"
alongside the Inn's building structure. On June 11, Commission
staff member George H. Badger followed up on this tip and
conducted an onsite inspection. Mr. Badger ascertained that,
while a portion of the floating platform was situated above a
man-made boat basin, a 54-foot long by 13.6-foot wide portion
of the floating platform was situated above state-owned
subaqueous bottomland.
Based on Mr. Badger's determination that a portion of the
floating platform was situated over state-owned subaqueous
bottomland, the Commission concluded that it had jurisdiction
over that portion of the platform. Further, the Commission
categorized this 54-foot by 13.6-foot portion of the floating
platform as unauthorized and requiring removal. The Commission
notified the Inn of this determination by a written Notice to
Comply and demanded immediate removal of the unauthorized
portion within 10 days. The Notice further warned the Inn that
failure to comply would result in the matter being placed
before the full Commission for an enforcement action, and that
monetary penalties may be imposed.
2
The Inn, through its manager Raymond Britton, responded to
the Commission's letter by submitting a joint permit
application that requested an after-the-fact permit for the
entire floating platform. The Commission, believing it
inappropriate to act upon this application while a violation
was ongoing, sent a letter to the Inn that again demanded
removal of the unauthorized portion of the platform. On June
28, the Commission undertook another site inspection and found
that the 54-foot by 13.6-foot portion of the floating platform
had not been removed.
B. Relevant Proceedings
The full Commission heard the enforcement action against
the Inn, voted in favor of the enforcement request, and found
that the 54-foot by 13.6-foot portion of the floating structure
constituted an unlawful use of state-owned submerged lands
pursuant to Code § 28.2-1203. The Commission directed removal
of that portion of the floating platform within 10 days.
The Inn timely appealed the Commission's decision to the
Circuit Court of Accomack County pursuant to Code § 2.2-4026,
Rule 2A:2, and Rule 2A:4. The Inn challenged the Commission's
decision on three points: (1) that the Commission failed to
make express findings of fact required to allow a court to
review an agency's actions, (2) that the Commission failed to
make findings of fact based on the required substantiality of
3
the evidence, and (3) that the Commission lacked jurisdiction
over the floating platform under Virginia state law, and that
federal maritime law governed the floating platform.
The circuit court focused on this third argument to
dispose of the case. In a final decree, the circuit court
found that the floating platform was a "vessel" and that the
Commission lacked jurisdiction to require removal of the
floating platform. The final decree was unclear about whether
this decision rested upon a determination that Virginia state
law does not authorize the Commission to exercise jurisdiction
over the floating platform, or upon a determination that
federal maritime law preempts any such Virginia state law. The
circuit court then set aside the Commission's decision,
dismissed with prejudice the Commission's enforcement action,
and awarded approximately $14,000 in fees and costs to the Inn.
The Commission timely appealed to the Court of Appeals. A
three judge panel concluded that the Commission admitted that
it failed to preserve the issue about whether the floating
platform was 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 the Commission's authority to order the removal of the
4
floating platform over state-owned submerged lands. Id. at
599, 731 S.E.2d at 12. The panel therefore reversed the
circuit court, vacated the award of fees and costs because the
parties agreed that the court's award of fees and costs to the
Inn "rises or falls" with the resolution of the other issues on
appeal, and remanded the case back to the circuit court to
determine whether Virginia state law authorized the Commission
to issue its enforcement decision. Id. at 591 n.2, 599, 731
S.E.2d at 8 n.2, 12-13.
The Court of Appeals granted the Inn's petition for a
rehearing en banc and stayed the panel decision's mandate.
Virginia Marine Res. Comm'n v. Chincoteague Inn, 60 Va. App.
719, 720, 732 S.E.2d 45, 46 (2012) (en banc). In its en banc
opinion, the Court of Appeals observed that the Commission
conceded the issue that the floating platform was a "vessel."
Virginia Marine Res. Comm'n v. Chincoteague Inn, 61 Va. App.
371, 375 n.1, 735 S.E.2d 702, 704 n.1 (2013) (en banc). Thus,
the Court of Appeals first addressed the preliminary issue of
whether Virginia state law authorized the Commission to
exercise jurisdiction over the floating platform before
reaching the subsequent issue of federal preemption, and held
that the Commission could not exercise jurisdiction over the
Inn's floating platform pursuant to Code § 28.2-1203. Id. at
380-81, 385-87, 735 S.E.2d at 707, 709-10. The en banc
5
decision by the Court of Appeals affirmed the circuit court's
determination that the Commission lacked jurisdiction and
accordingly affirmed the circuit court's award of fees and
costs to the Inn. Id. at 387, 735 S.E.2d at 710.
The Commission timely filed a petition for appeal with
this Court.
C. Assignments of Error
Upon appeal, our review considers three logically distinct
legal issues. First, whether Code § 28.2-1203(A) permits the
Commission to regulate the floating platform. Second, whether
federal maritime law applies to the floating platform because
it is a "vessel" under 1 U.S.C. § 3. Third, whether, if both
Code § 28.2-1203(A) and federal maritime law apply to the
floating platform, state and federal law may simultaneously
govern that floating platform or if federal maritime law
preempts Code § 28.2-1203(A). The Court of Appeals in its en
banc decision addressed the first two of these issues. It did
not reach the third issue of federal preemption. Virginia
Marine, 61 Va. App. at 387, 735 S.E.2d at 710.
In this appeal we address the assignments of error and the
arguments of the parties to the extent they direct us to
evaluate the following:
1. Whether the Court of Appeals erred in determining
that the Commission lacked jurisdiction to regulate
the floating platform under Code § 28.2-1203(A).
6
2. Whether the Commission can withdraw its concession
that the floating platform is a "vessel" as defined
under 1 U.S.C. § 3.
II. Discussion
A. Standard of Review
This appeal requires us to resolve issues of
constitutional interpretation and statutory construction. We
resolve these purely legal issues de novo. L.F. v. Breit, 285
Va. 163, 176, 736 S.E.2d 711, 718 (2013).
This appeal involves an administrative agency. Typically,
we give deference to the decisions of administrative agencies
when those decisions "fall within an area of the agency's
specialized competence." Virginia Dep't of Health v. NRV Real
Estate, LLC, 278 Va. 181, 185, 677 S.E.2d 276, 278 (2009).
"However, when an issue involves a pure question of statutory
interpretation, that issue does not invoke the agency's
specialized competence but is a question of law to be decided
by the courts." Alliance to Save the Mattaponi v. Commonwealth
Dep't of Envtl. Quality, 270 Va. 423, 442, 621 S.E.2d 78, 88
(2005). For those same reasons, we hold that no agency has
specialized competence in the purely legal issue of
interpreting the Constitution of Virginia. See Browning-Ferris
Indus. v. Residents Involved in Saving the Env't, 254 Va. 278,
284 492 S.E.2d 431, 434 (1997); Sims Wholesale Co. v. Brown-
Forman Corp., 251 Va. 398, 404, 468 S.E.2d 905, 908 (1996). We
7
therefore afford the Commission's determination no deference
when resolving the issues in this appeal.
B. The Commonwealth's Sovereign Authority Over State-Owned
Subaqueous Bottomland
The focus of this appeal is the operation of Code § 28.2-
1203(A). It is our "duty" to "constru[e] a statute to avoid
any conflict with the Constitution" of Virginia and the United
States Constitution. Commonwealth v. Doe, 278 Va. 223, 229,
682 S.E.2d 906, 908 (2009); Jeffress v. Stith, 241 Va. 313,
317, 402 S.E.2d 14, 16 (1991); see also Town of Victoria v.
Victoria Ice Light & Power Co., 134 Va. 134, 139, 114 S.E. 92,
93 (1922) ("Of course [a] statute must be construed as
subordinate to . . . pertinent sections of the Constitution
[that are] inconsistent therewith."). This is true even when
the statute's plain language is unambiguous and not absurd.
See, e.g., Elizabeth River Crossings OpCo, LLC v. Meeks, 286
Va. 286, 319-20 & n.7, 749 S.E.2d 176, 193 & n.7 (2013). It is
therefore pertinent to review the constitutional context in
which Code § 28.2-1203(A) arises before addressing the plain
language of that statute.
1. The Basis for the Commonwealth's Sovereign Authority Over
State-Owned Subaqueous Bottomland
Under the common law of England, the sovereign Crown held
title to and exercised dominion over all tidal waters and tidal
bottomland below the high water line located within England's
8
geographic jurisdiction. Shively v. Bowlby, 152 U.S. 1, 11-14
(1894). The geographic scope of this authority expanded as
English colonists began to claim land on the North American
continent, so that the Crown's title and dominion extended to
the tidal waters and tidal bottomland in America. Id. at 14.
After the American Revolution, this title and dominion
formerly belonging to the English sovereign was claimed by the
individual Thirteen Colonies who had, through the
Constitutional Convention, become sovereign states. See id. at
14-16; see also Alden v. Maine, 527 U.S. 706, 714-15 (1999)
(discussing the "residuary and inviolable sovereignty" retained
by the states pursuant to this Nation's constitutional design).
However, in light of this Nation's unique system of dual
sovereignty, the scope of the Commonwealth's sovereign
authority over subaqueous bottomland is no longer governed, or
necessarily informed, by the common law of England. See Martin
v. Lessee of Waddell, 41 U.S. (16 Pet.) 367, 410-11 (1842) ("A
grant [of subaqueous bottomland to a private entity] made by [a
state sovereign] must therefore manifestly be tried and
determined by different principles from those which apply to
grants of the British [C]rown, when the title is held by a
single individual in trust for the whole nation."); see, e.g.,
Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 285-86 (1997)
(distinguishing English common law and recognizing that state
9
sovereign authority extends to waterways and subaqueous
bottomland regardless of whether those environs are affected by
the tide).
As a state sovereign, the Commonwealth retains an
"absolute right to all [its] waters, and the soils under them,
for [its] own common use." Martin, 41 U.S. (16 Pet.) at 410.
Indeed, the title to and dominion over subaqueous bottomland is
"an essential attribute" of the Commonwealth's state
sovereignty. Idaho, 521 U.S. at 283; see also 43 U.S.C. § 1311
(confirming that state sovereigns retain title to and dominion
over "the lands beneath navigable waters within the boundaries
of the respective States, and the natural resources within such
lands and waters"). This sovereign power is limited only by
that authority surrendered to the federal sovereign in the
United States Constitution. Martin, 41 U.S. (16 Pet.) at 410.
2. The Scope of the Commonwealth's Sovereign Authority Over
State-Owned Subaqueous Bottomland
The Constitution of Virginia directs the General Assembly
to "undertake the conservation, development, or utilization of
lands or natural resources of the Commonwealth, . . . and the
protection of its atmosphere, lands, and waters from pollution,
impairment, or destruction." Va. Const. art. XI, § 2. The
General Assembly has affirmed the continued existence of the
Commonwealth's sovereign authority over state-owned subaqueous
10
bottomland, as that authority derives from the English common
law. See Code § 1-200. Moreover, the General Assembly has
defined the scope of that sovereign authority so that it
extends to "[a]ll the beds of the bays, rivers, creeks[,] and
the shores of the sea within the jurisdiction of the
Commonwealth" unless such subaqueous bottomland has been
"conveyed by special grant or compact according to law." Code
§ 28.2-1200. 1 As we previously explained, the Commonwealth's
sovereign authority over public environments, including
subaqueous bottomland, has two facets.
First, the Commonwealth retains the right of jus publicum,
"the right of jurisdiction and dominion for governmental
purposes." Commonwealth v. City of Newport News, 158 Va. 521,
546, 164 S.E. 689, 696 (1932). This is the Commonwealth's
sovereign authority to hold the public domain "for the interest
or benefit . . . of the public." 2 G. L. Webster Co. v.
1
The Commonwealth has ceded its sovereign authority to the
owners of subaqueous bottomland that rests above the mean low-
water mark, and to the owners of subaqueous bottomland beneath
creeks and rivers comprised within the limits of a lawful
survey. Code § 28.2-1202. Also, we have previously observed
that the General Assembly "chose not to include 'lakes' in its
designation of bodies of water whose beds remain the property
of the Commonwealth in the absence of a special grant or
compact." Smith Mountain Lake Yacht Club, Inc. v. Ramaker, 261
Va. 240, 246, 542 S.E.2d 392, 395 (2001).
2
The right of jus publicum has sometimes been termed the
"trust" or "public trust" theory by other courts and
commentators. Although we have sometimes used that
11
Steelman, 172 Va. 342, 357, 1 S.E.2d 305, 311 (1939). The jus
publicum contains within it, as "inherent" and "inseparable
incidents thereof," certain "rights of the people." Newport
News, 158 Va. at 546, 164 S.E. at 696-97.
Second, the Commonwealth retains the right of jus
privatum, "the right of private property" retained by the
Commonwealth because it is "proprietor" of the public domain
that has not been lawfully conveyed. Id. at 546, 164 S.E. at
696. This is the Commonwealth's authority to act "in a
proprietary capacity" because it also has "the right and title
of a private owner." G. L. Webster Co., 172 Va. at 357, 1
S.E.2d at 311.
The Commonwealth retains "a most solemn duty to [both]
administer the jus privatum of the [Commonwealth] and to
exercise its jus publicum for the benefit of the people." City
of Newport News, 158 Va. at 549, 164 S.E. at 697. In the
exercise of its right of jus privatum, it is a constitutional
imperative that the Commonwealth cannot "relinquish, surrender,
alienate, destroy, or substantially impair" the right of jus
publicum, or the rights of the people inherent to the jus
terminology, using it in today's opinion would not clarify the
analysis. City of Newport News, 158 Va. at 539-40, 164 S.E. at
695 ("It is questionable whether the interposition of the
conception of a trust in these cases serves any useful purpose
or tends to clarity of thinking or correctness of decision.").
12
publicum, except as authorized by the Constitution of Virginia.
Id. at 546-49, 164 S.E. at 696-97. 3
However, whether an activity is a right of the people
inherent to the jus publicum is a matter of Virginia common law
subject to the Constitution of Virginia and the General
Assembly's modification by statute. See, e.g., id. at 549-52,
164 S.E. at 698-99 (ascertaining whether fishery is a public
right inherent to the jus publicum under Virginia common law);
Stokes & Smith v. Upper Appomatox Co., 30 Va. (3 Leigh) 318,
337 (1831) (Brooke, J.) (observing that a particular activity
was a public right inherent to the jus publicum because it was
"expressly granted" by legislative acts of the General
Assembly); see also Kraft v. Burr, 252 Va. 273, 276-77, 476
S.E.2d 715, 716-17 (1996) (state law determines to what degree
the jus publicum restricts a sovereign's right to convey
subaqueous bottomland to a private party).
It is within this constitutional context that we construe
the plain language of Code § 28.2-1203(A).
3
This imperative arose by implication from the 1902
Constitution of Virginia. City of Newport News, 158 Va. at
546-47, 164 S.E. at 696-97. Nothing suggests that the 1971
Constitution of Virginia disposed of that constitutional
implication, and it survives today.
13
C. Whether Code § 28.2-1203(A) Allowed the Commission to
Regulate the Floating Platform
1. Construing Code § 28.2-1203(A)
The Commission's geographic jurisdiction includes "the
Commonwealth's territorial sea and extend[s] to the fall line
of all tidal rivers and streams except in the case of state-
owned bottomlands where jurisdiction extends throughout the
Commonwealth." Code § 28.2-101. The Commission's jurisdiction
therefore extends to the state-owned subaqueous bottomland over
which the Inn's floating platform was situated. The question
before us is whether the General Assembly empowered the
Commission to regulate the Inn's floating platform because that
platform was engaging in either a "trespass" or
"encroach[ment]" under Code § 28.2-1203(A).
The General Assembly has made it "unlawful for any person
to build, dump, trespass[,] or encroach upon or over
[subaqueous bottomland that is] the beds of the bays, ocean,
rivers, streams, or creeks which are the property of the
Commonwealth, unless such act is performed pursuant to a permit
issued by the Commission or is necessary for" various
enumerated exceptions. Code § 28.2-1203(A). 4 Engaging in such
4
Code § 12.2-1203(A) is a valid exercise of the right of
jus privatum as falling within the Commonwealth's proprietary
capacity as the entity retaining the right and title to the
subaqueous bottomland. See Montgomery v. Commonwealth, 99 Va.
833, 835, 37 S.E. 841, 842 (1901) (owner of private property
14
an unlawful act is a Class 1 misdemeanor. Code § 28.2-1203(B).
The Commission has authority to undertake inspections, issue
orders, and apply for injunctions to ensure compliance with
this statutory prohibition of unlawful building, dumping,
trespassing, or encroaching upon or over the Commonwealth's
subaqueous bottomland. Code §§ 28.2-1211; 28.2-1212.
Code § 28.2-1203(A) is not ambiguous. See Brown v.
Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985) (listing
factors indicating that statutory language is ambiguous).
Accordingly, we apply the plain language of the statute.
Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925-26
(2006). Additionally, because the statute's terms are
undefined, those words are given their "ordinary meaning," in
light of "the context in which [they are] used." Lawlor v.
Commonwealth, 285 Va. 187, 237, 738 S.E.2d 847, 875 (2013).
"Encroach" means "[t]o enter by gradual steps or stealth
into the possessions or rights of another; to trespass or
intrude," and "[t]o gain or intrude unlawfully upon another's
lands, property, or authority." Black's Law Dictionary 607
(9th ed. 2009). "Trespass" means "[a]n unlawful act committed
against the person or property of another[, especially]
wrongful entry on another's real property." Id. at 1642. We
has the legal right to order others off of that property, and,
upon refusal, the legal right to use proper force to expel such
others).
15
recognize an overlap between these terms, and therefore
construe them so that neither is surplusage. Travelers Prop.
Cas. Co. of Am. v. Ely, 276 Va. 339, 345, 666 S.E.2d 523, 527
(2008). A Code § 28.2-1203(A) "trespass" occurs when a person
occupies the space "upon or over" state-owned subaqueous
bottomland while simultaneously violating other law. A Code
§ 28.2-1203(A) "encroach[ment]" would be found when a person
occupies the space "upon or over" state-owned subaqueous
bottomland without violating any other law. These ordinary
meanings of the plain language make sense in the context of
Code § 28.2-1203(A).
However, we must construe these terms so that they do not
contravene the Constitution of Virginia. Doe, 278 Va. at 229,
682 S.E.2d at 908; Town of Victoria, 134 Va. at 139, 114 S.E.
at 93. The only applicable constitutional limitation is the
right of jus publicum. Specifically, we must decide whether
the Inn, in using the floating platform above state-owned
subaqueous bottomland, was engaging in an activity that is a
public right inherent to the jus publicum. If so, the
Constitution of Virginia prohibits construing "trespass" or
"encroach[ment]" as applying to the floating platform because
enforcing Code § 28.2-1203(A) would "relinquish, surrender,
alienate, destroy, or substantially impair" a constitutionally
16
protected "right[] of the people." City of Newport News, 158
Va. at 546-47, 164 S.E. at 697. 5
2. Code § 28.2-1203(A) and the Constitution of Virginia
The interplay between Code § 28.2-1203(A) and the
constitutional protection of the public rights inherent to the
jus publicum manifests in the following three-step analysis.
a. Did the Plain Language of Code § 28.2-1203(A) Apply
to the Floating Platform?
First, the analysis questions whether the floating
platform was subject to Code § 28.2-1203(A) because it was
committing a "trespass" or "encroach[ment] upon or over" state-
owned subaqueous bottomland. The clear answer is yes.
It is evident from the record that a 54-foot by 13.6-foot
portion of the floating platform occupied the physical space
over the Commonwealth's subaqueous bottomland. The Inn was not
violating any other law when it had the floating platform
occupy the space above the Commonwealth's subaqueous
bottomland. Thus, the floating platform was an "encroach[ment]
upon or over" the Commonwealth's subaqueous bottomland. On the
5
On this point the Court of Appeals erred by inverting the
jus publicum. The jus publicum is a constitutional doctrine
that simultaneously empowers and limits the actions of the
Commonwealth, not private individuals. See City of Newport
News, 158 Va. at 546-49, 164 S.E. at 696-97. Consequently,
because a private individual cannot violate the jus publicum,
the Court of Appeals erred in construing the terms appearing in
Code § 28.2-1203(A) as being defined by a private individual's
violation of the jus publicum. Virginia Marine, 61 Va. App. at
385-86, 735 S.E.2d at 709.
17
face of the statute, Code § 28.2-1203(A) applied to the
floating platform.
b. Was the Inn's Activity Issued a Permit by the Commission or
Exempted by a Statutory Exception?
Second, the analysis questions whether (1) the Commission
issued a permit for the floating platform, or (2) the Inn's
floating platform was exempted from Code § 28.2-1203(A) by
satisfying a statutory exception. The clear answer to both
questions is no.
It is evident from the record that the floating platform's
encroachment was neither authorized by permit nor exempted from
Code § 12.2-1203(A) by a statutory exception. The floating
platform's encroachment therefore violated Code § 28.2-1203(A).
c. Was the Inn's Activity a Public Right Inherent
to the Jus Publicum?
Third, the analysis questions whether the Inn, in using
the floating platform above state-owned subaqueous bottomland,
was engaging in an activity that is a public right inherent to
the jus publicum. The clear answer is no.
The General Assembly has modified the jus publicum to
include the public's right to use the Commonwealth's subaqueous
bottomland to "fish[], fowl[], hunt[], and tak[e] and catch[]
oysters and other shellfish." Code § 28.2-1200; see also
Bradford v. Nature Conservancy, 224 Va. 181, 194-97, 294 S.E.2d
18
866, 872-74 (1982). The record reflects that the Inn was not
engaged in any of these activities.
We have acknowledged that the jus publicum includes the
public right to navigate the Commonwealth's waters. James
River & Kanawha Power Co. v. Old Dominion Iron & Steel Corp.,
138 Va. 461, 470, 122 S.E. 344, 347 (1924). The right of
navigation, for purposes of the public right inherent to the
jus publicum, is "the right to move and transport goods from
place to place over the great natural highways provided by the
navigable waters of the State without let or hindrance from or
charge by any private person or corporation." City of Newport
News, 158 Va. at 550, 164 S.E. at 698 (emphasis added).
Although this right undoubtedly includes some cessation of
movement upon the water, as incident to the right of
navigation, it does not include all cessations of movement.
This necessarily follows from the fact that determining
what activity the Inn was engaged in requires evaluating the
totality of the circumstances. See id. at 550-51, 164 S.E. at
698 (distinguishing between engaging in navigation, which
includes "mov[ing] from place to place," and the right of
fishery, which as a matter of practicality may require some
degree of movement across water). Regardless of the length of
time a structure has stopped moving, we must evaluate the
19
circumstances surrounding that cessation of movement to
determine just what activity is being undertaken.
The record reveals that the Inn's floating platform
occupied the space over the Commonwealth's subaqueous
bottomland for approximately two months before the Commission
conducted its site inspection in June 2010. The Inn intended
for the floating platform to occupy that space for a total time
period of approximately four months. Although the Inn
interrupted the floating platform's fixed nature for a 32-
minute trip down the Chincoteague Channel in July 2010, this
momentary engagement in the right of navigation does not
obviate the facts showing that the floating platform was
otherwise stationary for at least two months.
Moreover, those months of being stationary were not
incident to the right of navigation. When the floating
platform was supported by two barges, the Inn placed a bar and
tables on the floating platform for its restaurant patrons.
When one of those barges was taken away, the Inn refitted the
floating platform with a new deck and handrails, and two
gangways led from the Inn to the barge so that restaurant
patrons could use the bar area and have outdoor seating on the
water. The Health Department permitted the Inn to conduct this
additional restaurant activity on the barge. Underscoring the
point, the Inn admitted to the full Commission during the
20
enforcement proceeding that the barge was being used as a
restaurant.
Restaurant operations are not incident to the right of
navigation. Indeed, using the floating platform for restaurant
operations "convert[ed] the public property," that is, the
waters above the Commonwealth's subaqueous bottomland, "pro
tanto to a use which is essentially private, whether it [was]
exercised for pleasure or profit." City of Newport News, 158
Va. at 551, 164 S.E. at 698-99. Much like the use of the
Commonwealth's water and subaqueous bottomland for "pleasure
purposes" and fisheries, see id. at 531, 551-52, 164 S.E. at
691, 698-99, the Inn's placement of the floating platform
alongside its restaurant was not a right of the public inherent
to the jus publicum.
Thus, the Constitution of Virginia does not restrict the
plain language of Code § 28.2-1203(A) from applying to the
Inn's floating platform, and therefore the Commission may
regulate that floating platform as an "encroach[ment] upon or
over" state-owned subaqueous bottomland. 6
6
It is important to recognize what this appeal does not
address. It does not address facts where an individual docks
his boat, as necessary to disembark after traveling across the
water, at a pier situated above state-owned subaqueous
bottomland. It does not address facts where an individual
lives in a floating structure situated above state-owned
subaqueous bottomland. Determining whether those factual
situations involve activities incident to the right of
21
D. Whether the Commission Can Withdraw Its Concession That
the Floating Platform Is a "Vessel" Under 1 U.S.C. § 3
The Commission asks to withdraw its concession that the
floating platform is a "vessel" as defined under 1 U.S.C. § 3.
The Commission relies upon the fact that the United States
Supreme Court published its opinion in Lozman v. City of
Riviera Beach, 568 U.S. ___, 133 S. Ct. 735 (2013), shortly
after the Court of Appeals issued its en banc decision in this
case. The Commission contends that because Lozman modified the
definition of "vessel" for purposes of applying 1 U.S.C. § 3,
the Commission should not be bound by its earlier concession
that the floating platform is a "vessel."
Had the Commission conceded only the legal issue, we would
not be bound by that concession of law. This is because an
"issue [which] is a question of law . . . is not subject to a
concession binding on this Court." Wright v. Commonwealth, 278
Va. 754, 760 n.3, 685 S.E.2d 655, 658 n.3 (2009); see also
Cofield v. Nuckles, 239 Va. 186, 194, 387 S.E.2d 493, 498
(1990) ("A party can concede the facts but cannot concede the
law.").
But the Commission did more than concede a legal issue.
The Commission also conceded that it did not preserve the issue
of whether the floating platform was a "vessel." Such a
navigation, or are themselves a public right inherent to the
jus publicum, is beyond the scope of today's appeal.
22
concession was appropriate because the Commission did, in fact,
fail to preserve the issue by failing to assign error to the
circuit court's determination that the floating platform was a
"vessel." Thus, under the law of the case doctrine, the
floating platform is a "vessel" as defined under 1 U.S.C. § 3
for purposes of this appeal. See Miller-Jenkins v. Miller-
Jenkins, 276 Va. 19, 26-27, 661 S.E.2d 822, 826 (2008).
It is important to note, however, that whether the
floating platform was engaged in the public right of navigation
inherent to the jus publicum, and whether the floating platform
is a "vessel" under 1 U.S.C. § 3, are separate inquiries. The
definition of "vessel" under 1 U.S.C. § 3 does require that a
structure be "in navigation." Stewart v. Dutra Constr. Co.,
543 U.S. 481, 496 (2005). But the "in navigation" requirement
prescribed by a definition within a federal statute is not
synonymous with the "right of navigation" protected by the
Constitution of Virginia.
Our definition of the "right of navigation" inherent to
the jus publicum focuses on the active and immediate moving
across the navigable waters. See City of Newport News, 158 Va.
at 550, 164 S.E. at 698. In contrast, the "in navigation"
requirement in 1 U.S.C. § 3 allows for the mere "possibility"
that a structure could engage in movement across the navigable
waters. Stewart, 543 U.S. at 496. And as the United States
23
Supreme Court made clear, a "vessel" as defined in 1 U.S.C. § 3
need not be actively "carrying people or things over water."
Lozman, 568 U.S. at ___, 133 S. Ct. at 740-41. Additionally,
in light of the longstanding authority discussed in Part II.B.,
a federal statute cannot dictate how we understand the right of
jus publicum under the Constitution of Virginia. See Michigan
v. Long, 463 U.S. 1032, 1040-41 (1983).
For these reasons, although the Commission failed to
preserve the issue of whether the floating platform is a
"vessel" under 1 U.S.C. § 3, that legal definition does not
dictate our analysis of whether the floating platform was
engaged in the public's "right of navigation" inherent to the
jus publicum.
III. Conclusion
This appeal involves a restaurant placing a floating
platform over the Commonwealth's subaqueous bottomland without
a permit or statutory exception in violation of Code § 28.2-
1203(A). Moreover, the floating platform was used to undertake
restaurant operations, and therefore was not protected by the
Constitution of Virginia as a public right inherent to the jus
publicum. For these reasons, we hold that the Court of Appeals
erred in interpreting the scope of the Commission's authority
under Code § 28.2-1203(A). Further, we hold that the
24
Commission failed to preserve the issue of whether the floating
platform is a "vessel" under 1 U.S.C. § 3.
For the aforementioned reasons, we reverse the Court of
Appeals' en banc decision. Although the Court of Appeals'
panel opinion addressed the issue of federal preemption, the
Court of Appeals vacated that panel opinion upon granting en
banc review. See Moore v. Commonwealth, 276 Va. 747, 755, 668
S.E.2d 150, 155 (2008) (recognizing that the Court of Appeals
considers panel decisions to be vacated in toto upon grant of
en banc review). Because the Court of Appeals' en banc opinion
did not address the issue of federal preemption, that issue
remains outstanding. We therefore remand the case to the Court
of Appeals to resolve all remaining issues, including whether
application of Code § 28.2-1203(A) to the floating platform is
preempted by federal maritime law.
Reversed and remanded.
JUSTICE POWELL, with whom JUSTICE McCLANAHAN joins, dissenting.
I agree with the majority that the dispositive question in
this case is whether the Inn, in using the barge 1 above state-
1
Unlike the majority, I believe that the term “floating
platform” is a misnomer. In reality, the “floating platform”
was simply one or two work barges with new decking installed.
The majority, however, implies otherwise, as demonstrated by
the majority’s subsequent description that “the floating
platform was supported by two barges.” (Emphasis added.)
25
owned subaqueous bottomlands, was engaging in an activity that
is a public right inherent in the jus publicum. However, I
disagree with the majority’s decision to disregard the
importance of the barge’s designation as a vessel. It is
readily apparent to me that a vessel “in navigation” is
necessarily engaging in the “right of navigation.” As a result
of the majority’s failure to give the barge’s status as a
vessel the proper consideration, the application of the Code
§ 28.2-1203(A) yields an absurd result. Accordingly, I must
respectfully dissent.
In my opinion, the VMRC’s concession that the barge is a
vessel is dispositive in this case. The majority, however,
disregards the importance of this designation, holding that
“the ‘in navigation’ requirement prescribed by a definition
within a federal statute is not synonymous with the ‘right of
navigation’ protected by the Constitution of Virginia.” The
majority’s holding is rendered erroneous by the fact that the
law has changed significantly since 1932 when this Court
decided Commonwealth v. City of Newport News, 158 Va. 521, 550,
164 S.E. 689, 698 (1932), the case upon which the majority
relies to establish its definition for the right of navigation
The use of the term “floating platform” is, in my opinion, an
unsuccessful attempt by the majority to downplay the ultimate
effect this opinion will have on all watercraft.
26
inherent to the jus publicum. 2 Notably, it has since been well-
established that Congress is the ultimate arbiter of what
activities are encompassed by the right of navigation, not the
Constitution of Virginia.
As an initial matter, it is important to note that
navigation is a subset of commerce. See Gilman v.
Philadelphia, 70 U.S. 713, 724 (1866) (“Commerce includes
navigation.”). Accordingly,
The Commerce Clause confers a unique position upon
the Government in connection with navigable waters.
“The power to regulate commerce comprehends the
control for that purpose, and to the extent
necessary, of all the navigable waters of the United
States . . . . For this purpose they are the public
property of the nation, and subject to all the
requisite legislation by Congress.” Gilman, [70
U.S.] 713, 724-25. This power to regulate navigation
confers upon the United States a “dominant
servitude,” FPC v. Niagara Mohawk Power Corp., 347
U.S. 239, 249 (1954), which extends to the entire
stream and the stream bed below ordinary high-water
mark.
United States v. Rands, 389 U.S. 121, 122-23 (1967).
Indeed, this Court acknowledged Congress’s power over
navigation in City of Newport News, stating:
By the adoption of the Constitution of the United
States the State of Virginia to a limited extent,
defined by the Constitution itself, relinquished a
portion of its sovereignty to the United States. In
2
Additionally, the majority fails to address the fact that
this definition was dicta. In City of Newport News, the issue
before the Court was whether the Constitution of Virginia
includes the public right of fishery, not the definition of the
right of navigation. 158 Va. at 533-34, 164 S.E. at 692.
27
so doing it imposed upon itself the limitation that
it may not so dispose of or appropriate to uses its
tidal waters and their bottoms as to interfere with
the power and right granted to the United States to
regulate and control the navigation thereof, so far
as may be necessary for the regulation of commerce
with foreign nations and among the States.
Id. at 543-44, 164 S.E. at 695-96 (emphasis added).
In 1932, when City of Newport News was decided, however,
it was believed that Congress’ power over navigation was
strictly limited to those navigable streams involved in
interstate and international commerce. See id. Implicitly,
this meant that power over intrastate commerce fell to the
individual states. Thus, at that time, the Constitution of
Virginia was the starting point for determining the activities
encompassed by the right of navigation.
However, in 1942, the United States Supreme Court
effectively eliminated the distinction between intrastate and
interstate commerce with regard to Congress’ power under the
Commerce Clause.
The commerce power is not confined in its exercise to
the regulation of commerce among the states. It
extends to those activities intrastate which so
affect interstate commerce, or the exertion of the
power of Congress over it, as to make regulation of
them [the] appropriate means to the attainment of a
legitimate end, the effective execution of the
granted power to regulate interstate commerce. . . .
The power of Congress over interstate commerce is
plenary and complete in itself, may be exercised to
its utmost extent, and acknowledges no limitations
other than are prescribed in the Constitution. . . .
It follows that no form of state activity can
28
constitutionally thwart the regulatory power granted
by the commerce clause to Congress. Hence the reach
of that power extends to those intrastate activities
which in a substantial way interfere with or obstruct
the exercise of the granted power.
United States v. Wrightwood Dairy Co., 315 U.S. 110, 119
(1942); see also Wickard v. Filburn, 317 U.S. 111, 128-29
(1942) (extending Congress’ power over interstate commerce to
include intrastate activities that may have an indirect effect
on interstate commerce); Gonzales v. Raich, 545 U.S. 1, 18
(2005).
In 1953, Congress ceded “title to and ownership of the
lands beneath navigable waters within the boundaries of the
respective States, and the natural resources within such lands
and waters.” Submerged Lands Act of 1953, 43 U.S.C. § 1311.
However, in ceding title and ownership of the subaqueous
bottomlands, Congress specifically retained “all its
navigational servitude and rights in and powers of regulation
and control of said lands and navigable waters for the
constitutional purposes of commerce, navigation, national
defense, and international affairs.” 43 U.S.C. § 1314(a)
(emphasis added). Moreover, Congress specifically established
that its rights in and powers of regulation and control over
the subaqueous bottomlands “shall be paramount to” the rights
and powers of the respective states. Id.
29
While the majority is correct that “a federal statute
cannot dictate how we understand the right of jus publicum
under the Constitution of Virginia,” it ignores the Supremacy
Clause which specifically states that the “Constitution, and
the Laws of the United States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the Land . . . any
Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. Const., Art. VI, cl. 2. (emphasis
added). It is readily apparent that Congress has deemed that
the starting point for determining what activity is encompassed
by the “right of navigation” inherent in the jus publicum is no
longer found in the Constitution of Virginia; rather, the
starting point is federal law.
Consequently, I believe that the determination that the
barge is a vessel under 1 U.S.C. § 3 is dispositive, as
Congress has deemed that all vessels are, by definition, “in
navigation.” As a necessary corollary, any watercraft that is
“removed from navigation for extended periods of time,” is no
longer a vessel. Lozman v. City of Riviera Beach, 133 S. Ct.
735, 751 (2013). Therefore, it is axiomatic that the use of a
watercraft in navigation (i.e., as a vessel) invokes the right
of navigation under federal law.
30
Additionally, the determination that the barge is a vessel
obviates the need for any examination of how the vessel is
used. As the United States Supreme Court explained,
the “in navigation” requirement is an element of the
vessel status of a watercraft. It is relevant to
whether the craft is “used, or capable of being used”
for maritime transportation. A ship long lodged in a
drydock or shipyard can again be put to sea, no less
than one permanently moored to shore or the ocean
floor can be cut loose and made to sail. The
question remains in all cases whether the
watercraft's use “as a means of transportation on
water” is a practical possibility or merely a
theoretical one.
Stewart v. Dutra Constr. Co., 543 U.S. 481, 496 (2005).
Thus, the majority’s examination of the Inn’s use of the
barge is moot. Indeed, by examining the issue of how the barge
is used, the majority effectively disregards the barge’s
designation as a vessel. It cannot be disputed that the barge
in the present case is a vessel. Therefore, in my opinion, it
similarly cannot be disputed that the Inn was engaging in its
public right of navigation through its use of the barge.
Furthermore, to hold that the VMRC has jurisdiction to
enforce Code § 28.2-1203(A) with regard to vessels would yield
an absurd result. This Court has recognized that “when the
language of an enactment is free from ambiguity, resort to
legislative history and extrinsic facts is not permitted
because we take the words as written to determine their
meaning.” Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84,
31
87 (1985). However, our jurisprudence makes it clear that
there are certain, limited exceptions to this rule.
In construing statutes, courts are charged with
ascertaining and giving effect to the intent of the
legislature. That intention is initially found in
the words of the statute itself, and if those words
are clear and unambiguous, we do not rely on rules of
statutory construction or parol evidence, unless a
literal application would produce a meaningless or
absurd result.
Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d
345, 346 (1997) (emphasis added) (citations omitted). The term
“absurd result” describes “situations in which the law would be
internally inconsistent or otherwise incapable of operation.”
Boynton v. Kilgore, 271 Va. 220, 227 n.9, 623 S.E.2d 922, 926
n.9 (2006) (internal quotation marks omitted).
It is readily apparent that the majority’s definition of
the right of navigation would render Code § 28.2-1203(A)
incapable of operation. The majority’s definition of the right
of navigation would give the VMRC jurisdiction to require every
watercraft not used for commercial purposes to get a permit
every time it is over state-owned subaqueous bottomlands. This
is not such a far-fetched proposition, as the VMRC has
unequivocally indicated that it would embrace such a ruling, as
demonstrated by its statement, which the majority quoted, that
anything that floats over state-owned subaqueous bottomland “is
an encroachment because it entered into the rights and
32
authority of the Commonwealth without its permission.” As the
Court of Appeals correctly noted, it would be impossible for
the VMRC to implement such a requirement because “vessels can
move and stop over the bottomlands numerous times in one day.”
Virginia Marine Res. Comm’n v. Chincoteague Inn, 61 Va. App.
371, 386, 735 S.E.2d 702, 710 (2013).
Additionally, the majority’s approach results in the de
facto criminalization of the act of temporarily mooring non-
commercial vessels. As stated above, every vessel not used for
commercial purposes would be required to get a permit every
time it is moored over state-owned subaqueous bottomlands. The
failure to acquire such a permit from the VMRC would subject
the owner of the vessel to prosecution for a Class 1
misdemeanor, Code § 28.2-1203(B), and a fine of up to $25,000
per day. Code § 28.2-1213(A).
The problem lies in the fact that the VMRC does not have
the authority to issue the required permit. Under Code § 28.2-
1207(A), the VMRC may approve permits “to trespass upon or over
or encroach upon subaqueous beds which are the Commonwealth's
property.” (Emphasis added.) Notably absent is the authority
to approve permits for encroachments over state-owned
subaqueous bottomlands. Under the maxim expressio unius est
exclusio alterius, the mention of a specific item in a statute
implies that the “omitted items were not intended to be
33
included.” Virginian-Pilot Media Cos. v. Dow Jones & Co., 280
Va. 464, 468-69, 698 S.E.2d 900, 902 (2010). Thus, the General
Assembly’s omission of “over” with regard to permits to
encroach implies that it did not intend to give the VMRC the
authority to grant such permits. Clearly, the General Assembly
never intended to outlaw all recreational activities over
state-owned subaqueous bottomlands. However, that is the
natural result of the majority’s application of Code § 28.2-
1203(A).
It is readily apparent that the majority recognizes these
inherent flaws in its opinion as demonstrated by its decision
to address what this “appeal” does not address in footnote 6.
The majority is correct: the VMRC’s “appeal” does not address
any of the situations listed. However, the majority ignores
the fact that its holding would still be dispositive of those
factual situations. Although the majority implies that docking
a boat used for purposes of personal travel or living on a
houseboat over state-owned subaqueous bottomlands would somehow
require a different result from the present case, it offers no
indication of how. Nor could it, as neither of these
activities involves the movement or transportation of goods
from place to place. Indeed, if today’s holding does not apply
to those factual situations, then the majority must acknowledge
that it is not defining the public right of navigation; rather,
34
it is defining the right of navigation as it applies solely to
the Inn.
Such a subjective approach can only lead to abuse.
Indeed, I find it particularly telling that, at oral argument,
the VMRC conceded that a boat that is moored for a majority of
the year and used primarily as a guesthouse would not be
subject to Code § 28.2-1203(A), because its use is incident to
navigation. However, the barge in the present case, which is
only moored for four months of the year and then actively used
as a work barge for the remaining eight months would be subject
to Code § 28.2-1203(A). The majority, however, tacitly
approves of such an arbitrary distinction.
Allowing the VMRC to enforce Code § 28.2-1203(A) with
regard to vessels, whether temporarily moored or otherwise,
would necessarily result in the relinquishment, surrender,
alienation, destruction or substantial impairment of the right
of navigation, a clear violation of the jus publicum.
Moreover, the application of Code § 28.2-1203(A) to vessels
renders the statute incapable of operation and ripe for abuse.
Accordingly, I would affirm the Court of Appeals’ decision
finding that the VMRC does not have jurisdiction to enforce
Code § 28.2-1203(A).
35