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Hayden v. Maryland Department of Natural Resources

Court of Special Appeals of Maryland

September 3, 2019

George M. HAYDEN

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[Copyrighted Material Omitted]

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          Circuit Court for St. Mary’s County, Case No. C-18-CV-17-000046, Karen Abrams, Judge.

         Argued by: Bryan T. Dugan (Anjelica N. Harden, Dugan, McKissick & Eongmore, LLC, on the brief) Lexington Park, MD, for Appellant.

         Argued by: Christian J. Dabb (Brian E. Frosh, Atty. Gen. on the brief) Annapolis, MD, for Appellee.

         Panel: Wright, Kehoe, Leahy, JJ.


         Kehoe, J.

         [242 Md.App. 508] 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

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passed.[1] Nonetheless, [242 Md.App. 509] 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.


          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 [242 Md.App. 510] 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,

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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:

[242 Md.App. 511] 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 [242 Md.App. 512] 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

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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;
[242 Md.App. 513] (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.


         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

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lease from the State, and redeposit them. As it [242 Md.App. 514] 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] ...

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