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Hayden v. Maryland Department of Natural Resources

Court of Special Appeals of Maryland

September 3, 2019

GEORGE M. HAYDEN
v.
MARYLAND DEPARTMENT OF NATURAL RESOURCES

          Circuit Court for St. Mary's County Case No. C-18-CV-17-000046

          Wright, Kehoe, Leahy, JJ.

          OPINION

          KEHOE, J.

         Maryland has regulated the harvesting of oysters in the Chesapeake Bay and its tributaries since 1868. The era when the law was enforced by Maryland's "Oyster Navy"- ships armed with cannon and, later, machine guns, and crewed by men more than willing to use them-has passed.[1] Nonetheless, the State's regulations are strict and the sanctions for violations can be severe.

         In this appeal from a judgment of the Circuit Court for St. Mary's County, George M. Hayden challenges a decision of an administrative law judge that permanently revoked his ability to harvest oysters in Maryland's tidal waters. The administrative law judge did so pursuant to Md. Code § 4-1210 of the Natural Resources Article, which requires the Maryland Department of Natural Resources to revoke an individual's authorization to conduct commercial oyster harvesting if an administrative law judge finds that the individual "knowingly" violated any of the five offenses enumerated in the statute. He raises two issues, which we have reworded:

1. In a revocation of authorization action brought pursuant to Nat. Res. § 4-1210, is the Department required to prove that the licensee knew that he or she was violating the law when committing the predicate offense?
2. Was the administrative law judge's finding that Mr. Hayden "willfully disregarded and failed to learn the laws and requirements of oyster harvesting" supported by substantial evidence?

         Because our answer is "no" to the first question, and "yes" to the second, we will affirm the decision of the administrative law judge.

         Background

         A Regulatory Overview

         The Department of Natural Resources (the "Department") regulates and enforces Maryland's fishing laws, which includes the authority to grant or deny tidal fish licenses. A tidal fish license authorizes the licensee "to guide fishing parties, catch fish for commercial purposes and buy, sell, process, transport, export or otherwise deal in fish which were caught in the tidal waters of Maryland." Nat. Res. § 4-101(r). In the statutory scheme, the meaning of the word "fish" is very broad: it includes finfish, e.g. striped bass a/k/a rockfish, blue fish, perch, etc.; crustaceans, e.g., blue crabs; and mollusks, e.g., oysters and clams. Nat. Res. § 4-101(j). Tidal fish licenses have a term of one year and are renewed on September 1 of each year. Nat. Res. § 4-701(c).

         Possession of a tidal fish license does not, by itself, permit a licensee to harvest oysters. In order to engage in the commercial harvesting of oysters, an individual must also pay an annual surcharge of $300 and, what is significant to the issues raised in this appeal, certify to the Department that he or she has received certain publications that we will now describe. Nat. Res. § 4-701(g)(1)(i).

         The Department is required by law to prepare maps and coordinates showing the locations of areas that are off-limits to oyster harvesting and to distribute copies of those maps to licensees on an annual basis. Nat. Res. § 4-1006.2.[2] For their part, licensees must sign a receipt stating that they have received the information. Section 4-1006.2(b)(2) requires the Department to prepare a form by which the licensee acknowledges receipt of the information provided by the Department when a license is renewed. The form in use in 2016, when Mr. Hayden last renewed his license, stated in relevant part:

I hereby acknowledge my responsibility as a licensed shellfish harvester to know and comply with all laws governing shellfish including harvesting, reporting requirements, and restrictions relating to shellfish harvesting gear.
I hereby certify under penalty of perjury that I have received from the Department of Natural Resources maps and coordinates of . . . areas closed to shellfish harvest by the Department of the Environment[.]

         There is another layer of regulations pertaining to oyster harvesting. The Maryland Department of the Environment (the "MDE") administers programs concerning the public health of the Chesapeake Bay. Specifically, the MDE is authorized to close areas of the Chesapeake Bay and its tributaries to oyster harvesting when the MDE determines that those areas are polluted and that the shellfish from the polluted areas are hazardous to public health. Nat. Res. § 4-742. Harvesting oysters from a closed area is prohibited by statute. Nat. Res. § 4-1006(b)(1). Areas closed by the MDE are designated on the maps prepared annually by the Department and distributed to commercial oyster harvesters pursuant to Nat. Res. § 4-1006.2. In addition, the Department is authorized to promulgate regulations regarding oyster harvesting. The Department has done so, and the regulations are found in Title 8, chapter 4 of the Code of Maryland Regulations ("COMAR").

         There is an exception to the rule that an individual cannot remove oysters from a closed area. The Department and the MDE allow individuals to remove oysters from a closed area to a personal aquaculture lease, a process known as "relaying." A term of art, relaying occurs when a person harvests oysters from a polluted area and moves them to a non-polluted area so that the oysters can filter out toxins until they are marketable for sale and consumption. In order to relay oysters, a licensee must obtain a permit to do so from the MDE. Nat. Res. § 4-1006. In order to obtain a relay permit, the applicant must first have: (a) a tidal wetlands license for both the harvesting and relay sites, (b) a water column lease from the Board of Public Works, (c) an aquaculture permit from the Department, and (d) a shellstock shippers license from the Maryland Department of Health and Mental Hygiene.[3]Additionally, the MDE allows relaying only when the oyster season is closed, and relaying must be conducted under the supervision of a Department of Natural Resources Police officer. A relay permit is good only for the one relaying activity, and cannot be used for any relaying that occurs at a later date. A relay permit application takes, on average, three to seven days to process, and there is no fee associated with obtaining one.[4]

         A person violating any provision of either Title 4 of the Natural Resources Article or a regulation of the Department regarding oyster harvesting may face criminal penalties, including fines and incarceration. See Nat. Res. § 4-1201. Additionally, the Department must take administrative action against a person who is charged with violating certain provisions of Title 4. The administrative sanction, which is the subject of this appeal, is found in Nat. Res. § 4-1210, which states in pertinent part:

(a)(1) In addition to any other penalty or fine provided in this title, a person who holds an authorization to catch oysters under § 4-701 of this title and receives a citation for an offense listed under paragraph (2) of this subsection may have the authorization revoked in accordance with this section.
(2) The following offenses, committed in violation of this title or of any regulation adopted under this title, are grounds for revocation of an authorization to catch oysters under this section:
(i) Taking oysters located more than 200 feet within a closed or prohibited area;
(ii) Taking oysters with gear that is prohibited in that area;
(iii) Taking oysters outside of a time restriction for the harvest of oysters by more than 1 hour;
(iv) Taking oysters during closed seasons; and
(v) Taking oysters from a leased area by a person other than the leaseholder or the leaseholder's designee.
(b)(1)(i) Before the revocation of an authorization to catch oysters under this section, the Department shall hold a hearing on the matter in accordance with the Administrative Procedure Act under Title 10, Subtitle 2 of the State Government Article.
(2) After a hearing is conducted under paragraph (1) of this subsection, if the presiding officer finds or concludes that the person knowingly has committed an offense listed under subsection (a)(2) of this section, the Department shall revoke the person's authorization to catch oysters.
* * *

(Emphasis added).

         It is the meaning of the word "knowingly" in subsection (b)(2) that is the primary focus of this appeal.

         Facts

         Mr. Hayden has been a waterman for over twenty years. In the early morning of February 25, 2017, he began harvesting[5] oysters in Whites Neck Creek, a tributary of the Wicomico River in southern Maryland. He positioned his boat, equipped with a hydraulic dredge, [6] over an oyster bed adjacent to real property owned by his parents. His intended purpose was to relay the oysters from that location, transport them to an area of Saint Catherine's Sound which was subject to his private aquaculture lease from the State, and redeposit them. As it turned out, Mr. Hayden was harvesting oysters about 1, 198 feet into an area of the Creek that had been closed to oyster harvesting by the MDE because of pollution. He did not have a permit to relay oysters, nor was relaying permitted on the day in question.

         Natural Resources Police Officer Jason Kreider was present on the shore of the Creek with a clear line of sight into the closed area. Officer Kreider witnessed Mr. Hayden pull oysters from the closed area using his hydraulic dredge, haul them into his boat, proceed down Whites Neck Creek, and deposit the oysters in his aquaculture lease site.

         When Mr. Hayden returned to the closed area, Officer Kreider signaled for him to come to shore. Mr. Hayden complied, and the two engaged in conversation about Mr. Hayden's activities. Mr. Hayden admitted that he was relaying oysters from Whites Neck Creek to his private aquaculture lease in Saint Catherine's Sound. A few days later, Officer Kreider issued Mr. Hayden three citations for: (1) using a hydraulic dredge to harvest oysters in a non-designated area;[7] (2) harvesting oysters during a closed season;[8] and (3) harvesting oysters from an area closed by the MDE due to pollution.[9]

         The Administrative Hearing

         Although the State did not pursue the criminal charges against Mr. Hayden, the Department, as required by Nat. Res. § 4-1210, sought to revoke Mr. Hayden's authorization to engage in commercial oyster harvesting.

         On June 19, 2017, a hearing was held before an administrative law judge. As to the issues relevant in this appeal, the parties made the same arguments at the hearing as they do on appeal. We will discuss those arguments in more detail in our analysis, and so we provide only an abbreviated summary of them here.

         The Department's theory of the case was that "knowingly," as used in Nat. Res. § 4-1210(b), means "intentionally" or "deliberately." According to the Department, Mr. Hayden's culpability was abundantly clear under this standard because he admitted to Officer Kreider that he that he had relayed oysters from a closed area, out of season, using a hydraulic dredge. Mr. Hayden approached § 4-1210(b) differently. He took the position that, in order for the administrative law judge to find that he "knowingly" violated the statute, the Department had to prove that Mr. Hayden was subjectively aware that he was violating the law when he removed oysters from the closed area. Operating under this theory, Mr. Hayden asserted that when he relayed oysters from the closed area of Whites Neck Creek, he was not aware that doing so was illegal.

         As a preliminary matter, the parties stipulated to the following facts: that on February 25, 2017, Mr. Hayden pulled oysters from a closed area of Whites Neck Creek; that Mr. Hayden was in excess of 1, 198 feet inside the closed area; that the area had been closed due to pollution; that Mr. Hayden relayed oysters from the closed area to his private aquaculture lease; that Mr. Hayden did not have a relay permit; that Mr. Hayden signed a copy of the Oyster Surcharge Sheet on November 9, 2016, acknowledging that he would know and comply with all laws governing shellfish, and certified, under penalty of perjury, that he received the Department's maps and coordinates of oyster sanctuaries and areas closed to shellfish harvesting; and that Mr. Hayden received a copy of the Department's Shellfish Closure Manual dated June 2016.

         The Department called Louis C. Wright as its only witness. Mr. Wright has been a hydrographer with the Department for about thirty-five years. As a hydrographer, Mr. Wright surveys areas of the Chesapeake Bay and its tributaries, prepares maps and coordinates of areas closed to oyster harvesting, and drafts textual descriptions of those areas for the use of the Department and the public. He testified that the area from which Mr. Hayden was relaying oysters had been designated as a closed area by the MDE, and clarified that a "closed area" was an area, determined by the MDE through water sampling, to have shellfish contamination, and so closed for shellfish harvesting. However, Mr. Wright noted that an individual could relay oysters from a closed area if he or she obtained a relay permit from the Department.

         Mr. Hayden called Jane Louis Hayden, his mother, as a witness in support of his argument that he believed he could relay oysters from the closed area because his parents had a riparian right to harvest oysters in Whites Neck Creek. She testified that her family had owned the property since the 1930s, and read a portion of their deed, which provided that the property included the riparian right to use the bottom of Whites Neck Creek adjacent to the property from the shoreline to the center of the Creek "for oyster planting and cultivation."

         Mr. Hayden also called his wife, Ernestine Hayden, to testify about a conversation she previously had with Mr. Wright. Mrs. Hayden, who works with her husband in their oyster business, testified that she spoke with Mr. Wright in May 2016 while he was surveying a lease that the couple had applied for. She stated that she asked Mr. Wright about needing a lease to oyster the portion of Whites Neck Creek subject to the family's riparian rights. According to Mrs. Hayden, Mr. Wright replied that the Department "probably would like for you to so that they can regulate oysters," but that "as far as I know, technically you do not need a lease there." Mrs. Hayden recorded what Mr. Wright told her on a small piece of paper shortly thereafter, and this note was entered into evidence.[10]

         Finally, Mr. Hayden himself testified. First, he testified that he relayed the oysters he had harvested from Whites Neck Creek to the site of his aquaculture lease. Mr. Hayden added that his family had harvested oysters from that area since 1925, and that he hadn't realized the law regarding harvesting oysters from a riparian bed had changed.

         Mr. Hayden then testified about the conversations he had had with Kathy Bohan, an MDE employee. Ms. Bohan had previously taken samples from Whites Neck Creek and tested those samples for pollution.[11] Sometime after those samples had been tested but before February 25, Mr. Hayden called Ms. Bohan to ask if the water quality of the Creek had improved. When she told Mr. Hayden that it had not, Mr. Hayden asked Ms. Bohan to take new samples from that portion of the closed area adjacent to his parents' property. In doing so, Mr. Hayden hoped that if the MDE could get a better reading, he would gain a "small window" of opportunity to relay oysters from the closed area. When Mr. Hayden indicated to Ms. Bohan that his parents had riparian rights for the area, Ms. Bohan informed him that she thought the law regarding harvesting oysters on riparian land had changed.

         Based on what Ms. Bohan told him about the legal change in riparian rights law, Mr. Hayden called Mr. Wright to discuss the matter. According to Mr. Hayden, Mr. Wright told him that he "technically" did not need a lease to harvest oysters from an area subject to his riparian rights.

         Mr. Hayden was then cross-examined by counsel for the Department. Mr. Hayden admitted that he relayed oysters from a closed area, that he knew the area was polluted, that he knew that area had been closed due to pollution since the 1990s, that he planned to sell the oysters he took from the closed area after they "filtered out" for several weeks on his personal aquaculture lease, and that an adjoining aquaculture lease area was also closed as a result of his activities.

         Mr. Hayden was also cross-examined about the Department's licensing procedures. He testified that he was given a packet of information when his tidal fish license was renewed by the Department in 2016. He signed an acknowledgement that he had received this information. The receipt was entered into evidence. It stated in pertinent part:

I hereby acknowledge my responsibility as a licensed shellfish harvester to know and comply with all laws governing shellfish including harvesting, reporting requirements, and restrictions relating to shellfish harvesting gear.
I hereby certify under penalty of perjury that I have received from the Department of Natural Resources maps and coordinates of . . . areas closed to shellfish harvest by the Department of the Environment[.]

         Mr. Hayden also testified that he had received a copy of the Shellfish Closure Manual, which includes maps of the closed areas of the Chesapeake Bay (including those in Whites Neck Creek), and contained additional information on shellfish closures. However, Mr. Hayden also testified that he read "very poorly" and that the receipt was "hard to understand." He ...


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