Maryland Attorney General Opinion 96 OAG 139.pdf

Gen. 139] 139

COUNTIES

CODE HOME RULE COUNTIES – AUTHORITY OF COUNTIES TO

ENACT LOCAL LAWS UNDER ARTICLE 25, §232,

CONCERNING FISHING AND SEAFOOD OPERATIONS –

WHETHER KENT COUNTY MAY ENFORCE LOCAL “RIGHT

TO FISH” LAW

December 21, 2011

The Honorable Ronald H. Fithian

The Honorable William W. Pickrum

The Honorable Alexander P. Rasin

County Commissioners of Kent County

You have asked two sets of questions about Kent County’s

authority, as a code home rule county, to legislate on seafood

harvesting and industry matters.1 One set of questions concerns a

State law recently made applicable to Kent County. That statute,

codified at Annotated Code of Maryland, Article 25, §232,

authorizes a county to enact certain types of legislation concerning

the fishing and seafood industry after obtaining the consent of the

Secretary of Natural Resources (“Secretary”). With respect to §232,

you ask:

1. What kind of legislation is authorized by §232? In

particular, would the Secretary’s prior consent under §232 to a

county’s legislation on fishing and seafood industry matters exempt

that legislation from preemption by State laws?

2. Does §232 require a code home rule county to secure the

consent of the Secretary before adopting zoning or land use

provisions that authorize the use of real property for a seafood

business or the storage of seafood business equipment?

In our opinion, the answers to your questions concerning §232

are as follows:

1

In compliance with our policy concerning requests for opinions

from local governments, the County provided a legal analysis by the

County Administrator, a licensed attorney.

140 [96 Op. Att’y

1. Section 232 adds “seafood business” and “seafood

harvesting” to the subjects on which counties may legislate.

However, it does not empower a county to enact legislation that

would otherwise be preempted by State laws and regulations.

Rather, it provides the county and the Secretary with a mechanism

by which to determine whether proposed county legislation would

likely be preempted by the laws, regulations, and program guidance

administered by the Department of Natural Resources (“DNR”).

2. The provision concerning the Secretary’s consent in §232

applies only to actions taken by a county under that statute. Section

232 does not require a code home rule county to obtain the consent

of the Secretary before exercising its powers to regulate land use

under Annotated Code of Maryland, Article 66B.

Your second set of questions concerns an ordinance passed by

the Kent County Commissioners in 2009 entitled “Fish and Seafood

Operations,” now codified as Chapter 89 of the Kent County Code.

That ordinance, sometimes referred to as a “right to fish” law,

purports to limit private civil actions brought against seafood and

fishing operations conducted “in accordance with generally accepted

seafood and fishing industry practices.” It additionally requires a

person who wishes to file a common law trespass or nuisance action

concerning seafood operations to first pursue an administrative

remedy before a county board. The county board’s decision is then

to be presumed correct in any later judicial proceedings. With

reference to the Kent County ordinance, you ask:

3. Prior to the enactment of §232, could a code home rule

county enact a “right to fish” ordinance that restricts common law

trespass and nuisance actions?

4. May a code home rule county condition the filing of a

common law action involving seafood operations on the issuance of

an administrative decision by a county board and require the courts

to accord that decision a presumption of correctness?

In our opinion, the answers to your questions concerning the

County ordinance are as follows:

3. Neither the Maryland Constitution nor other State law

confers on a code home rule county the authority to enact “right to

fish” legislation that restricts the filing of common law trespass and

nuisance actions. Although the General Assembly has expressly

Gen. 139] 141

repealed aspects of those common law torts as against agricultural

operations, it has not done so for seafood operations. Section 232

did not authorize the passage of local “right to fish” laws.

4. Neither the Maryland Constitution nor other State law

confers on a code home rule county the authority to impose

conditions on a person’s access to a judicial remedy for common law

torts arising out of the conduct of a seafood operation. A code

county also lacks the authority to create evidentiary presumptions for

such an action.

I

Effect of §232 on a Code County’s Powers

Your first two questions concern the interpretation of §232.

The basic approach to statutory construction is well known. As

relevant here, it begins with the language of the statute. When that

language, both on its face and in context, is clear and unambiguous:

[W]e need go no further. We give the

language its plain meaning. We do not add or

delete words in order to reflect an intent not

evidenced by what the Legislature actually

said and we do not construe statutes with

forced or subtle interpretations that limit or

extend its application.

Swinson v. Lords Landing Village Condo., 360 Md. 462, 478, 758

A.2d 1008 (2000) (citations and internal quotation marks omitted).

Information from the legislative history of the statute, however, can

be helpful to confirm what appears to be its plain meaning. Ali v.

CIT Technology Financing Svces, Inc., 416 Md. 249, 261, 6 A.3d

890 (2010). Additionally, a statute should be harmonized with other

statutes addressing the same subject, to the extent reasonably

possible. Gwin v. Motor Vehicle Admin., 385 Md. 440, 462, 869

A.2d 822 (2005); see also Higginbotham v. PSC, 412 Md. 112,

133-34, 985 A.2d 1183 (2009) (statutes should be construed to avoid

repeal by implication of other statutes).

142 [96 Op. Att’y

A. Article 25, §232

Originally enacted in 2004, §232 did not apply to Kent County

until this year, when it was amended to apply to every county.2

Chapter 385, Laws of Maryland 2011. As of October 1, 2011, it

provides:

(a) Subject to subsection (b) of this

section, the governing body of a county may

adopt an ordinance, resolution, or regulation

or take any other action that the governing

body considers necessary to authorize a person

to:

(1) Use the person’s personal

property or real estate to operate a seafood

business;

(2) Buy or sell seafood;

(3) Store equipment used in the

person’s seafood business;

(4) Enjoy the quiet conduct of the

person’s seafood business in conformance

with county and State requirements; and

(5) Harvest seafood.

(b) (1) Before adopting an ordinance,

resolution, or regulation under subsection (a)

of this section, the governing body of the

county in which the ordinance, resolution, or

regulation will apply shall:

(i) Hold a public hearing and

provide reasonable notice of the hearing; and

2

As originally enacted, §232 applied only to Dorchester County.

Chapter 134, Laws of Maryland 2004. Later amendments extended its

application to Calvert, Queen Anne’s, and Somerset counties. Chapter

588, Laws of Maryland 2007; Chapter 324, Laws of Maryland 2008.

Gen. 139] 143

(ii) Obtain the written consent of

the Secretary of Natural Resources.

(2) An ordinance, resolution, or

regulation adopted without the written consent

of the Secretary of Natural Resources is void

and without legal effect.

(c) In the event of a conflict, federal law,

State law, or written program guidance issued

by a federal or State agency shall preempt any

ordinance, resolution, or regulation adopted or

any other action taken by the governing body

of a county under this section.

You asked generally what kind of legislation §232 authorizes.

The statute authorizes counties specifically to enact laws “necessary”

to authorize a person to carry out a variety of activities in the field

of seafood business and harvesting (“seafood operations”) in

conformance with county and State requirements. In the case of a

code county, it appears to elaborate on the county’s existing

authority to enact “fish and game” laws. See Article 25B, §13

(incorporating Article 25A, §5(m)). It is otherwise difficult to

sketch the boundaries of this authority in the abstract, as a variety of

other laws can govern particular activities relating to seafood

operations. A significant question, as you suggested, is how §232

might affect State laws that would otherwise preempt local action in

this field.

B. Effect of §232 on Possible State Preemption of County

Legislation

Section 232(b)(1)(ii) conditions a county’s authority to enact

legislation concerning seafood operations, in part, on the written

consent of the Secretary. You ask whether this consent requirement

empowers a code county to adopt measures that would otherwise be

preempted by State laws. In our opinion, it does not.

1. Preemption

In Maryland, State preemption of local law “is grounded upon

the authority of the General Assembly to reserve for itself exclusive

dominion over an entire field of legislative concern.” Ad+Soil, Inc.

v. County Commissioners, 307 Md. 307, 324, 513 A.2d 893 (1986).

144 [96 Op. Att’y

Accordingly, to determine whether county regulation of a particular

activity is preempted by State law, the courts look to whether the

Legislature intended to retain, delegate, or share its power to

regulate the field in which the activity falls. See id. at 324-26. The

Legislature’s intent in this regard is generally manifested in three

ways: expressly, by conflict, or impliedly.

The Legislature makes its intent to preempt local regulatory

efforts “express” by enacting an explicit preemption clause

specifying the effect of a State law on local measures. Worton Creek

Marina, LLC v. Claggett, 381 Md. 499, 512 n.6, 850 A.2d 1169

(2004). See, e.g., Annotated Code of Maryland, Public Safety

Article, §5-104 (“... the State preempts the right of any local

jurisdiction to regulate the sale of a regulated firearm”).

In the case of preemption by conflict, the Legislature’s intent

to displace local regulation is generally clear, either through “a

verbal conflict” – when the State law prohibits what the local

measure permits or vice versa – or through a “functional conflict”–

when the impact of the local law interferes with the State law's

function. See Mayor of Baltimore v. Hart, 395 Md. 394, 407-9, 910

A.2d 463 (2006); see also Coalition for Open Doors v. Annapolis

Lodge No. 622, 333 Md. 359, 380 n. 39, 635 A.2d 412 (1994); 89

Opinions of the Attorney General 195 (2004) (county’s trapping

laws, while within its power to pass “fish and game laws,” were

preempted by conflicting State law).

Preemption is implied when “local law [d]eals with an area in

which the Legislature has acted with such force that an intent by the

State to occupy the entire field must be implied[.]” Talbot County

v. Skipper, 329 Md. 481, 488, 620 A.2d 880 (1993) (citations and

quotations omitted). The “comprehensiveness with which the

General Assembly has legislated the field” is the “primary indicia”

of an “intent by the State to occupy the entire field....” Id. An array

of “secondary factors” may also be applied, including “whether a

state agency responsible for administering and enforcing the state

law has recognized local authority to act in the field.” Allied

Vending v. City of Bowie, 332 Md. 279, 299, 631 A.2d 77 (1993)

(citation and internal quotation marks omitted).

The fact that the General Assembly has legislated on a

particular subject does not invariably preclude all local regulation of

a field. When a State statute “simply excludes a particular activity”

from its coverage, “supplementary local legislation” might not be

Gen. 139] 145

preempted by that State statute. Coalition for Open Doors, 333 Md.

at 380; see also Hart, 395 Md. at 409 (city directive on the operation

of emergency vehicles supplemented State statute on the same

subject because the directive and the statute furthered the same

purpose); Mayor and City Council v. Sitnick, 254 Md. 303, 323-24,

255 A.2d 376 (1969) (city ordinance imposing a minimum wage on

certain businesses supplemented State minimum wage law and

therefore was not preempted). Similarly, dual regulatory processes

may co-exist when the county’s regulation does not conflict with the

State’s regulation. See, e.g., Maryland Reclamation Associates v.

Harford County, 414 Md. 1, 40, 994 A.2d 842 (2010) (State waste

disposal permitting process complemented, rather than preempted,

the county’s planning and zoning role).

2. Effect of the Secretary’s Consent

Section 232(b)(1)(ii) conditions passage of a local ordinance

concerning seafood operations on the written consent of the

Secretary. Section 232(b)(2) reinforces that condition by declaring

that a local law is “void and without legal effect” in the absence of

such consent. You have asked whether such consent would

inoculate the ordinance from preemption by State law. For three

reasons, it would not.

First, the statute itself makes a county measure approved by the

Secretary expressly subject to preemption by conflict. Section

232(c) provides: “[i]n the event of a conflict, ... State law, or written

program guidance issued by a ... State agency shall preempt any

ordinance, resolution, or regulation adopted or any action taken by

the governing body of a county under this section.” §232(c)

(emphasis added). Because an action taken “under this section”

could only come into existence upon the Secretary’s consent under

subsection (b), subsection (c) necessarily applies only to county

measures already approved by the Secretary. Accordingly, the

Secretary’s consent would not save a county measure from

preemption by a conflicting State law or agency program guidance.

Whether a county measure is in fact preempted by conflict will

depend on whether the local measure permits what the State law

prohibits (or vice versa), or interferes with the State law’s function.

Second, while §232(c) codifies the concept of conflict

preemption, it does not address whether the Secretary’s consent

would save a county measure from implied preemption. In our

opinion, the Secretary’s consent under §232 would not necessarily

146 [96 Op. Att’y

have that effect. The Secretary’s recognition of local authority to act

on a subject would instead be one part – a “secondary factor” under

the case law – of a court’s analysis of whether the Legislature

intended to occupy that field. While the Secretary’s views would

likely be accorded the deference ordinarily given an agency’s

interpretation of the laws it administers, they would not be

conclusive. See Grasslands Plantation, Inc. v. Frizz-King Enters.,

LLC, 410 Md. 191, 204, 978 A.2d 622 (2009)(addressing the scope

of the deference to be accorded to an agency’s interpretation of the

laws it applies). Moreover, the relevance of the Secretary’s consent

to the question of legislative intent would be attenuated at best for

county measures falling within the purview of an agency other than

DNR, or within an area, such as Critical Areas regulation, in which

the Legislature has expressly defined the respective roles of the local

legislative bodies and the State. Thus, the Secretary’s consent to

passage of a county measure would not necessarily establish the

Legislature’s intent to share the field with local governments.3

Furthermore, the consent provision of §232(b)(1)(ii) would be

constitutionally suspect if interpreted to give the Secretary the final

authority to approve local laws that conflict with State laws. The

Court of Appeals has explained:

The delegation doctrine prohibits a legislative

body from delegating its law-making function

to any other branch of government or entity

and is a corollary of the separation of powers

doctrine implicit in the United States

Constitution and expressly provided in the

Maryland Constitution.

Maryland State Police v. Warwick Supply & Equip. Co., 330 Md.

474, 480, 624 A.2d 1238 (1993). While the Court has “long

sanctioned delegations of legislative power to administrative

officials where sufficient safeguards are legislatively provided for

the guidance of the agency in its administration of the statute,” id.,

3

For example, the Secretary's consent to county legislation in a

field extensively regulated by the Maryland Department of the

Environment (“MDE”) would neither inoculate the county measure

against preemption nor exempt the subject of the regulation from the MDE

permitting processes. See, e.g., Maryland Reclamation Associates, 414

Md. at 40 (noting the “dual nature” of the permitting process for

waste-disposal operations).

Gen. 139] 147

the consent provision provides no criteria to guide the Secretary’s

decision and thus no safeguards. In our view, the consent provision

should be construed simply as a mechanism allowing the Secretary

to forestall the enactment of county legislation on matters that are

properly addressed solely by DNR under State law.4

3. Summary

The Secretary’s consent under paragraph (b)(1)(ii) would not

save a county measure from preemption by State laws or written

program guidance. The extent to which a county measure would in

fact be preempted by State law or written program guidance will

depend on the particular measure and the relevant State law.

C. Effect of §232 on County’s Exercise of Zoning and Land Use

Powers

You ask whether §232 makes the Secretary’s consent a

prerequisite to Kent County’s adoption of zoning and land use

measures that authorize the use of real property for seafood

operations. In our opinion, so long as the County is exercising

powers granted by other statutes, the consent requirement of

§232(b)(2) does not apply.

4

For example, the Secretary “is responsible for conservation

management of the fish, fisheries, fish resources and aquatic life within

the State.” Annotated Code of Maryland, Natural Resources Article

(“NR”), §4-202. More particularly, under NR §4-215, DNR is responsible

for preparing and adopting fishery management plans governing the

harvesting of 24 identified fisheries and any others for which DNR

determines the need for a plan. The “General Assembly intends that

[DNR] shall manage [those] fisheries ... for the benefit of all citizens of

the State.” NR §§4-215(b) and (c) and 4-215.3. These specific fisheries

management provisions likely prevail over the general grant of power in

Article 25B, §13 (incorporating Article 25A, § 5(M), which empower a

code county to enact “fish and game laws”). See Passnault v. Board of

Administrative Appeals, 309 Md. 466, 475, 525 A.2d 222 (1987) (“where

there is a specific enactment and a general enactment, and the general

enactment includes what is embraced in the former, the particular

enactment is operative and the general enactment governs only such cases

within its general language as are not within the provisions of the specific

enactment”).

148 [96 Op. Att’y

1. Land Use Powers of a Code County under Articles

25B and 66B

In 1970, Kent County chose to become a “code county,”

governed through a board of county commissioners. Its powers are

thus derived from Article XI-F (the “Code Home Rule

Amendment”) and the statutes applicable to counties choosing that

method. The main sources of the zoning and land use powers

granted to code counties are Articles 25B and 66B of the Annotated

Code of Maryland.5

Article 25B, §13 (incorporating Article 25A, §5(X)),

authorizes a code county “to enact local laws, for the protection and

promotion of public safety, health, morals, and welfare relating to

zoning and planning....” Moreover, the General Assembly has

declared that it is “the policy of this State that planning and zoning

controls shall be implemented by local government.” Article 25A,

§5(X)(2)(ii). Those powers are expressly limited by a preemption

clause, which provides, in part, that the granted powers “shall not be

construed ... [t]o preempt or supersede the regulatory authority of

any State department or agency under any public general law.”

Article 25A, §5(X)(2)(v)(4).

Article 66B, which applies to certain local legislative bodies,

including a code county’s governing body, significantly elaborates

on land use powers. See Grasslands Plantation, 410 Md. at 212. It

reiterates the policy that “[p]lanning and zoning controls be

implemented by local governments.” Article 66B, §4.01(a)(1)(ii).

It implements that policy by authorizing a local legislative body to

divide its jurisdiction into districts, or zones, and within those

districts, to “regulate and restrict the ... use of buildings, structures,

or land.” §4.02(a)-(b). The regulations adopted by a local

legislative body must be designed to accomplish seven general

purposes, including “[p]romot[ing] health and the general welfare,”

5

The Court of Appeals has remarked on the complexity of

“[t]racing the entire panoply of related enabling statutes in Maryland.”

Mayor & Council of Rockville v. Rylyns Enters., Inc., 372 Md. 514, 542,

814 A.2d 469 (2002). Here, we describe only the statutes which bear most

directly on your questions, and only in the detail relevant to the discussion.

Numerous other State statutes and programs bear on a code county’s land

use and zoning decisions. See, e.g, Annotated Code of Maryland, Natural

Resources Article, §§8-1801 through 8-1817 (creating the Chesapeake and

Atlantic Coastal Bays Critical Area Protection Program).

Gen. 139] 149

“[p]romot[ing] the conservation of natural resources,” and

“[p]revent[ing] environmental pollution....” §4.03(b).

Once a local legislative body has zoned or rezoned land under

Article 66B, it “may impose additional restrictions, conditions, or

limitations that [it] considers appropriate to preserve, improve, or

protect the general character and design” of both the property in

question and “the surrounding or adjacent lands and improvements.”

Article 66B, §4.01(c). Additionally, a county may “regulate and

restrict, for trade, industry, residences, and other purposes,” land use

matters such as building size, percentage of a lot to be occupied,

off-street parking, and the “location and use of buildings, signs,

structures, and land.” Article 66B, §4.01(b)(1); see also Article 25B,

§13 (incorporating Article 25A, §5(T)) (code county has power to

enact local laws “relating to ... the erection, construction, repair, and

use of buildings and other structures....”).6

2. Kent County Land Use Ordinance

Kent County has adopted a land use ordinance regulating the

use of land, buildings, and other structures in each district and

authorizing various uses related to seafood operations. Kent

County’s land use ordinance accordingly aims to “[provide] a

unified, comprehensive approach to regulations that affect land use

including Zoning, Subdivision, Forest Conservation, Floodplain

Management, Sediment and Erosion Control, Stormwater

Management, and the Chesapeake Bay Critical Area.” Kent County

Land Use Ordinance, Article I, §1. For instance, Kent County has

designated a Marine District, under which land or structures may be

used for “[s]eafood processing, including wholesale and retail sales,”

by special exception. See Kent County Land Use Ordinance, Article

V, §13.3(9).

6

Under Article 25B, §13 (incorporating Article 25A, §5(T)), a

code county also may “enact local laws enabling the county council to

adopt ... ordinances for the promotion of public safety, morals, comfort

and welfare, relating to ... streets and highways; the disposal of wastes; ...

soil erosion...; [and] the erection, construction, repair, and use of buildings

and other structures....” As relevant here, these powers overlap with those

granted by Article 66B, and so we do not discuss them separately.

150 [96 Op. Att’y

3. Effect of §232 on a Code County’s Exercise of Land

Use Powers

On its face, §232 is self-contained and places limits only on the

powers it authorizes. Subsection (a) lists the types of

seafood-related operations a county may authorize “[s]ubject to

subsection (b).” In turn, subsection (b) sets forth prerequisites for

adoption of a measure “under subsection (a).” One of the

prerequisites is procedural – notice and a public hearing. The other

is substantive – consent of the Secretary. Subsection (b) further

provides that failure to comply with the latter prerequisite renders

the county’s action “void and without legal effect.”7

Subsection (b) does not state, for instance, that the Secretary’s

consent must be obtained for county measures “adopted under

Article 66B and under subsection (a) of this section.” Thus, unless

one adds words to the statute, §232(b) does not require a county to

obtain the Secretary’s consent before taking actions under Article

66B or other State statutes, even when those actions might also be

authorized by §232(a). For example, the consent provision would

not apply to the County’s decision to permit by special exception

“Seafood processing, including wholesale and retail sales” in the

Marine District, see Land Use Ordinance Article V, §13.3 (9),

because such a decision falls within the County’s power to regulate

and restrict the “use of buildings, structures, or land” by district. See

Article 66B, §4.02(a).

So construed, §232 is consistent with other statutes relating to

the same subject matter. As noted above, the General Assembly has

declared “the policy of this State” that planning and zoning controls

7

It might be argued that only paragraph (b)(1) – which sets out the

prerequisites for an action under subsection (a) – is explicitly cross-

referenced to subsection (a) and that paragraph (b)(2) – which states the

consequences of a failure to obtain the Secretary’s consent – is not

similarly cross-referenced and therefore has broader application.

However, both of these provisions, as well as subsection (c), repeat the

same list of possible measures as subsection (a) – “ordinance, resolution,

or regulation” – and subsection (c) is also explicitly cross-referenced to

action taken under subsection (a). To construe paragraph (b)(2) as

untethered to the remainder of the statute with the potential to invalidate

an undefined universe of local government measures would be illogical

and lead to anomalous results, contrary to the tenets of statutory

construction. Condon v. State, 332 Md. 481, 491, 632 A.2d 753 (1993).

Gen. 139] 151

are to be implemented by local government. See Article 25,

§5(X)(2)(ii); Article 66B, §4.01(a); see also Ad + Soil, 307 Md. at

333 (policy of local implementation is “one of the cornerstones of

this state’s system of land use control”). That policy would not be

furthered by broadly requiring the Secretary to become involved in

every land use decision under Article 66B authorizing a seafood

business, from the comprehensive plan stage to building design and

set-back requirements. Moreover, the consent requirement is not

needed to safeguard the Secretary’s powers from a county’s exercise

of its land use powers, which are already constrained by two

provisions that expressly preserve State authority. See Article 25A,

§5(X)(2)(v)(incorporated by Article 25B, §13); Article 66B,

§4.01(d) (powers granted under Article 66B do not “[p]reempt or

supersede the regulatory authority of any State department or agency

under any public general law”).

Finally, the legislative history of §232 confirms the apparent

meaning of the statute. Section 232 was originally enacted as Senate

Bill 671 (2004). The Revised Fiscal and Policy Note for that bill

stated that, under the then-current law applicable to the affected

county: “Statute does not explicitly state that the county may adopt

an ordinance, resolution, or regulation to authorize a person to

engage in the seafood industry or harvest seafood.”8 The legislative

file for that bill also contains an informal note in which DNR staff

advised legislative staff that the amendment of the bill to include the

consent provision “takes care of any conflict with our rules or

regulations.”9 The legislative history thus does not suggest a

legislative intent to give the Secretary new veto powers over actions

taken by code counties under their Article 66B powers. Rather, it

indicates that the General Assembly intended to grant to the counties

powers that had not been expressly granted, and ensure that those

powers were appropriately limited to avoid conflict with State law.

In our opinion, the consent provision of §232(b) applies only

to measures adopted by a county under §232(a) and should not be

8

As noted in footnote 2 above, later amendments of §232 merely

added to the list of counties to which it applied, but did not make other

substantive changes. The fiscal notes for those bills refer only to the fact

that the county to be added lacked the authority granted by the section.

9

See e-mail message from Gina Hunt to Lesley Cook (April 12,

2004) in legislative bill file for Senate Bill 671 (2004).

152 [96 Op. Att’y

construed to either alter the zoning and land use procedures adopted

by a county under Article 66B or grant the Secretary authority over

land use matters not delegated to that official by other statutes.

Thus, in our view, subsections (b) and (c) of §232 simply (1) codify

the courts’ recognition that State regulation of a certain field will not

preempt a local measure which supplements and furthers the State’s

regulatory scheme and (2) safeguard the State’s regulatory scheme

by providing a mechanism by which the Secretary may determine in

advance whether a local measure in fact meets those criteria.

II

County Authority to Limit Common Law Actions

Arising out of Seafood Operations

Your second set of questions concerns the County’s authority

to enact an ordinance, now codified as Chapter 89 of the Kent

County Code, that places substantive and procedural limitations on

a person’s ability to bring a common law nuisance or trespass action

against a seafood operation in the County. This law, which is

sometimes called a “right to fish” law, is apparently modeled on

“right to farm” laws enacted in Maryland, as well as most other

states, nearly 30 years ago. A brief excursion into “right to farm”

legislation is illuminating in understanding the purpose – and limits

– of “right to fish” laws, including Chapter 89. Accordingly, we

briefly describe the origin and effect of “right to farm” laws before

we address your questions.

A. “Right to Farm” and “Right to Fish” Laws

Under the common law, the torts of nuisance and trespass are

not limited to negligent or intentionally wrongful conduct.

Nuisance, “somewhat of a hybrid cause of action, involving property

tenets as well as tort principles,” is a substantial interference with

another’s use and enjoyment of land. Wietzke v. Chesapeake Conf.

Ass’n, 421 Md. 355, 371, 26 A.3d 931 (2011). The tort thus focuses

not on the defendant’s negligence, but on whether there has been

unreasonable interference with the plaintiff’s use and enjoyment of

property. WSSC v. CAE-Link Corp., 330 Md. 115, 126, 622 A.2d

745 (1993). Trespass also involves property tenets; that tort focuses

on the interference with another’s exclusive possession of land. See

Rockland, Inc. v. H.J. Williams, 242 Md. 375, 385, 219 A.2d 48

(1966). A trespass “may be both unintended and non-negligent.”

Gen. 139] 153

JBG/Twinbrook Metro Ltd. P’shp. v. Wheeler, 346 Md. 601,621, 697

A.2d 898 (1997).

The defenses to nuisance and trespass actions also focus on

property rights.10 In some jurisdictions, the defense of “coming to

the nuisance” may bar the claims of a landowner who took

possession of the land with knowledge of the activities in question.

See, e.g., Spur Industries v. Del E. Webb Development Co., 494 P.2d

700, 706-8 (Ariz. 1972) (en banc). However, many jurisdictions,

including Maryland, do not recognize that defense. See

Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 280-81, 20 A.

900 (1890).11

During the past century, urban and suburban residential

developments have expanded into areas formerly dedicated to

farming. Many traditional agricultural activities may impact the air

and water of adjacent properties in a manner that would ordinarily

constitute a common law nuisance or trespass or violate local land

use standards. These effects may be exacerbated by some modern

agricultural practices. In many jurisdictions there was a perceived

need to limit common law torts, as well as to modify local regulatory

authority, to support agricultural operations.

To address the possibility that existing agricultural operations

might be found liable for common law nuisance and trespass to their

10

A landowner may lose or alienate the rights to exclusive

possession and use and enjoyment of property in the same way as other

real property rights may be lost or alienated – e.g., by grant or by a

prescriptive use conducted openly, hostilely, and under a claim of right for

at least 20 years. See, e.g., Goldstein v. Potomac Electric Power Co., 285

Md. 673, 677 n.1, 404 A.2d 1064 (1979) (citing Susquehanna Fertilizer

Co., 73 Md. 268, 276, 20 A. 900 (1890)).

11

In Susquehanna, the Court referred to English cases for the

proposition that the defense of “coming to the nuisance” applies only

when the defendant has acquired a prescriptive right to maintain the

nuisance: “... the plaintiff came to the house he occupies with all the

rights which the common law affords, and one of them is a right to

wholesome air. Unless the defendant shows a prescriptive right to carry

on his business in the particular place, the plaintiff is entitled to

judgment.” 73 Md. at 281(citations and internal quotation marks omitted).

Similarly, in Maryland, the defense of assumption of the risk does not

apply to trespass actions. JBG/Twinbrook, 346 Md. at 619-21.

154 [96 Op. Att’y

new neighbors, states passed “right to farm” laws to protect farmers

from liability for common law nuisance and to shield agricultural

operations from some local land use regulation. M.R. Grossman &

T.G. Fischer, Protecting the Right to Farm: Statutory Limits on

Nuisance Actions Against the Farmer, 1983 Wis. L. Rev. 95, 97-98;

A.A. Reinert, Note: The Right to Farm: Hog-Tied and Nuisance-

Bound, 73 N.Y.U. L.Rev. 1694, 1695 (1998). Such laws now exist

in some form in all 50 states. Id.12 Some “right to farm” laws

require that the farm have been in operation for a specified period of

time or that it have predated the potential plaintiff’s nearby property

interest in order to be protected; other laws require that the farm be

operated according to certain standards or “generally accepted”

standards as a condition of immunity. Reinert at 1710-12. Later

laws created administrative bodies to mediate nuisance disputes and

required that plaintiffs pursue that remedy as a prerequisite to filing

suit. Reinert at 1707-8.

The Maryland General Assembly passed a “right to farm” law

in Maryland in 1981. Chapter 763, Laws of Maryland 1981, codified

at Annotated Code of Maryland, Courts & Judicial Proceedings

Article (“CJ”), §5-403. That law provides certain agricultural

operations with a qualified immunity from liability for common law

nuisance. CJ §5-403(c).13 The statute also makes a plaintiff’s

12

There has been a debate about the extent to which such laws may

unconstitutionally deprive the neighbors of an agricultural operation of

their own property rights, and at least one court has held that such a law

constitutes an unconstitutional taking of property. See Borman v. Board

of Supervisors, 584 N.W.2d 309 (Iowa 1998).

13

Although subject to various exceptions and qualifications, the

statute confers immunity from common law nuisance claims as follows:

(c) If an agricultural operation or silvicultural

operation has been under way for a period of 1

year or more and if the operation is in compliance

with applicable federal, State, and local health,

environmental, zoning, and permit requirements

relating to any nuisance claim and is not

conducted in a negligent manner;

(1) The operation, including any noise,

odors, dust, or insects from the operation, may not

be deemed a public or private nuisance; and

Gen. 139] 155

prosecution of a nuisance action contingent on exhausting an

administrative remedy at the State or local level. CJ §5-403(e).

Although less common than “right to farm” laws, a “right to

fish” law would have a similar design – to protect traditional fishing

and seafood operations from liability for common law torts that arise

because of a change in the surrounding land use, as well as from

local land use regulation. Such a law would be distinct from one

that protects the quiet enjoyment of fishing from intentional

interference. See, e.g., Annotated Code of Maryland, Natural

Resources Article (“NR”), §4-506 (prohibiting interference with

fishing nets); §4-506.1 (prohibiting intentional interference with a

“lawful fishing activity”).

As explained in detail below, while Chapter 89 has many of the

elements of a “right to fish” law, it lacks the necessary foundation in

State law, and §232 did not provide that foundation.

B. Kent County Fish and Seafood Operations Law

In 2009, the County Commissioners of Kent County enacted an

ordinance, now codified as Chapter 89 of the Kent County Code,14

to stem the decline of the County’s fishing and seafood operations

“by limiting the circumstances under which commercial seafood and

fishing operations that adhere to generally accepted practices may be

considered a nuisance or trespass.” Kent County Code, §89-1(B).

The ordinance defines “commercial seafood and fishing operation”

to include “all matters of harvesting seafood and charter boat fishing

(2) A private action may not be sustained

on the grounds that the operation interferes or has

interfered with the use or enjoyment of other

property, whether public or private.

CJ §5-403(c). This provision might apply to some seafood operations;

under CJ §5-403(a), the term “agricultural operations” includes

aquacultural operations, defined in the Agriculture Article to include

rearing fish. AG §10-1301. The statute does not apply, however, to

fishing and seafood operations generally.

14

The law was originally enacted as Chapter 80 of the Kent

County Code, and was later recodified to maintain the alphabetical order

of code chapters.

156 [96 Op. Att’y

in Kent County,” including a lengthy non-exclusive list of seafood-

related operations. §89-2.15

Chapter 89 places three constraints on a plaintiff’s tort

remedies with respect to injuries or damages caused by seafood and

fishing operations (“seafood operations”). §89-3. First, it provides

that a neighboring property owner of a commercial seafood or

fishing operation has “no recourse against the inherent effects” of

those operations when they are conducted “within standard and

generally accepted seafood and fishing industry practices.” §89-

3(A).16 Second, it provides that certain nuisance actions “may not be

sustained” with respect to seafood operations “substantially in

accordance with generally accepted seafood and fishing industry

15

Included in the list are “boats and patrons leaving and returning

at all hours; painting of crab pots; storage of boats with current license,

crab pots, oyster tongs, bait, claim rigs, generators, chum, ice trucks, salt,

paint, and other equipment; and soft crab shedding with its associated

equipment and lighting.” §89-2.

16

That provision reads as follows:

When conducted within standard and generally

accepted seafood and fishing industry practices,

neighboring property owners shall have no

recourse against the inherent effects of

commercial seafood and fishing operations.

These inherent effects include, but are not limited

to, smoke, noise, vibration, odors, fumes, dust, the

operation of machinery of any kind during any

twenty-four hour period, movement of equipment

or boats, the shedding of crabs, the storage of crab

pots, oyster tongs, bait, clam rigs, generators,

refrigerators, chum, ice trucks, salt, paint, boats,

and other equipment, boats and patrons arriving

and leaving at all hours, and the parking and

repair of crab pots, and other equipment.

The ordinance defines “generally accepted seafood and fishing industry

practices” by reference to federal, state, and local laws regulating those

activities and to “best management practices” identified by government

agencies. §89-2. It authorizes the county planning department to consult

with various organizations and individuals to identify additional practices

fitting this standard. Id.

Gen. 139] 157

practices.” §89-3(B).17 Finally, the ordinance makes a civil action

“alleging that a seafood or fishing operation has interfered with the

reasonable use and enjoyment of real property or personal well

being” contingent on exhaustion of an administrative procedure

created by the ordinance. §89-3(C).18

The administrative process to which §89-3(C) refers is set forth

in sections 4 and 5 of the ordinance. Section 4 creates the Kent

County Seafood Resolution Board (“Resolution Board”) to arbitrate

and mediate disputes concerning seafood operations in the County.

§89-4.19 Complaints “of nuisances that allegedly affect the

reasonable use and enjoyment of property” are to be filed with the

County Department of Planning, Housing and Zoning and, if they

also allege “an impact to public health,” with the County Health

Department. §89-5(A). After the County planning department

investigates the complaint, the Resolution Board is to conduct a

hearing at which the parties may “examine and cross-examine

17

That provision reads:

A private action may not be sustained with respect

to any seafood or fishing operation conducted

substantially in accordance with generally

accepted seafood and fishing industry practices on

the grounds that the seafood or fishing operation

interferes or has interfered with the use and

enjoyment of property, whether public or private,

if the seafood or fishing operation has been in

existence at the site for at least one year and such

operation was not a nuisance at the time it began

operation.

18

That provision reads:

Notwithstanding any provision of this section, no

action alleging that a seafood or fishing operation

has interfered with the reasonable use or

enjoyment of real property or personal well being

may be filed in the Court if the plaintiff has not

sought and obtained a final judgment of the Kent

County Seafood Resolution Board.

19

The Resolution Board is a five-member body appointed by the

Commissioners with “the power to issue subpoenas for the presence of

witnesses, the production of evidence, or both.” §89-4(B).

158 [96 Op. Att’y

witnesses” and present other information. §89-5(B), (C)(1)-(2). The

Resolution Board is then to decide whether a particular practice

conforms to generally accepted industry practices. §89-4(A). The

ordinance provides:

The [Resolution] Board’s decision in this

respect creates a rebuttable presumption which

shall be admissible in evidence in any

subsequent civil proceeding in the Kent

County District or Circuit Court arising out of

the matters set forth in the complaint.

§89-5(C)(3). The ordinance further provides that the Resolution

Board’s decision “may be appealed in the Kent County Circuit Court

in accordance with Title 7, Chapter 200 of the Maryland Rules.”

§89-5(C)(5). Absent an appeal, the “decision shall be final.” Id.

Finally, the ordinance requires plats for subdivisions approved

within the Chesapeake Bay Critical Area or abutting an existing

seafood or fishing operation to contain an acknowledgment that the

County has enacted Chapter 89 and that “owners of lots in the

subdivision may be subject to inconveniences arising from such

operations.” §§89-6, 89-7.

C. Whether a Code County May Limit Tort Actions Related to

Seafood Operations

You ask whether Kent County had the power to enact the

Chapter 89 limitations on nuisance and trespass actions in 2009,

before §232 applied to Kent County. In our opinion, Kent County

did not have that power in 2009, nor did §232 confer it.

1. Authority of a Code County with Respect to Common

Law Tort Actions

An enactment of a county legislative body not only must fall

within a legislative field delegated by the State Constitution or

statutes pertinent to that county’s method of government, but also

must also fit the definition of a “local law.” See McCrory Corp. v.

Fowler, 319 Md. 12, 20, 570 A.2d 834 (1990) (charter county’s

ordinance fell within a legislative field eligible for county regulation

but did not address purely local matters); Gunpowder Horse Stables

v. State Farm Auto. Ins. Co., 108 Md. App. 612, 632-33, 673 A.2d

721 (1996) (same). The answer to your question turns on whether

Gen. 139] 159

the provisions of the Kent County ordinance that relate to common

law tort actions satisfy the “local law” requirement.20

a. “Local Law”

The Code Home Rule Amendment grants a code county the

general power to “enact, amend, or repeal a public local law....”

Maryland Constitution, Article XI-F, §3; see also Article XI-F, §6

(code county “may enact, amend, or repeal a public local law of that

county by resolution of the board of county commissioners....”). The

term “public local law” excludes (and so a code county may not

enact) “laws applicable to more than one county,” and certain other

laws not relevant here. See Article XI-F, §1.

The “local law” constraint also applies to charter and

commissioner counties. See Article XI-A, §4 (pertaining to a charter

county’s powers); Bradshaw v. Lankford, 73 Md. 428, 432, 21 A.

66 (1891) (explaining that the General Assembly, not county

commissioners, had been vested with the power to address subjects

of concern to the people of the State). Most cases concerning the

“local law” requirement have arisen in the context of a charter

county’s powers, see, e.g., Holiday Universal, Inc. v. Montgomery

County, 377 Md. 305, 314, 833 A.2d 518 (2003), and the courts

have relied on those cases to decide whether laws enacted by other

types of local governments are “local” in effect. See Cole v.

Secretary of State, 249 Md. 425, 431-32, 240 A.2d 272 (1968)

(addressing whether a statute pertaining to Cecil County, a

commissioner county, was “local”); Board of Education v.

Frederick, 194 Md. 170, 182, 69 A.2d 912 (1949) (addressing

whether a municipality’s law was “local”); Annapolis v. Wimbleton,

Inc., 52 Md. App. 256, 263, 447 A.2d 509 (1982) (same).

A law is not “local” when it “affects the interests of the people

of the whole State.” Gaither v. Jackson, 147 Md. 655, 667, 128 A.

769 (1925). A law that regulates conduct or people in other counties

is thus not local. See, e.g. Holiday Universal, Inc. v. Montgomery

County, 377 Md. 305, 317, 833 A.2d 518 (2003) (county regulation

20

In light of our answer to the “local law” question, we do not

discuss the constitutionality of the Chapter 89 immunity provisions. See

Jackson v. Dackman, __ Md. __, 30 A.3d 854, 2011 Md. LEXIS 639, *35-

41(discussing the constitutionality of certain statutory immunities in light

of Article 19 of the Maryland Declaration of Rights).

160 [96 Op. Att’y

of service contracts). Nor is a law that addresses a subject of

significant interest throughout the State. One such subject is the

creation of a judicial remedy for the statewide problem of

employment discrimination. See McCrory Corp., 319 Md. at 20;

see also Edwards v. Corbin, 379 Md. 278, 296, 841 A.2d 845

(2004). Another is the State’s natural resources. See, e.g.,

Bradshaw v. Lankford, 73 Md. 428, 21 A. 66 (1891) (county

prohibition on oyster dredging in State waters within the county was

not a “local law”). Conversely, a law pertaining only to a county’s

employees, having no effect outside of the county, and not creating

a cause of action in the courts, is a “local law.” Tyma v.

Montgomery County, 369 Md. 497, 514, 801 A.2d 148 (2002)

(county extension of county benefits to domestic partners of county

employees).

Changes to common law causes of action are not “local” in

nature. See, e.g., McCrory, 319 Md. at 19-21; Gunpowder Horse

Stables, 108 Md. App. 612. In McCrory, a Montgomery County

ordinance sought to address employment discrimination by creating

a cause of action cognizable in circuit court. 319 Md. at 19-21. The

Court of Appeals found that the field of abusive employment

practices, albeit “a statewide problem,” had not been preempted by

the State and could be addressed concurrently by home rule counties.

Nevertheless, the fact that a home rule county could address the

problem did not mean that the county could create a judicial remedy:

“[C]reating a remedy which has traditionally been the sole province

of the General Assembly and the Court of Appeals, to combat a

statewide problem such as employment discrimination, goes beyond

a matter[] of purely local concern.”21 Id. at 20 (citation and

21

In McCrory, the Court focused on whether the law was “local”

rather than whether regulating common law causes of action fell within

the express powers delegated to a charter county. Prior to McCrory, the

Court had held that a charter county could alter the common law by

creating a commission empowered to grant remedies for violations of the

county’s fair housing law. County Council v. Investors Funding, 270 Md.

403, 312 A.2d 225 (1973). In that case, the Court reasoned that the police

powers granted to charter counties (but not code counties) by Article 25A,

§§5(A) and (S) included the enactment of legislation to address

landlord-tenant issues and thus necessarily included the power to alter the

common law. The Court did not address the question of whether such

laws were “local” – an issue apparently not raised in that case. The Court

also did not address whether the charter county’s express powers included

(continued...)

Gen. 139] 161

quotation marks omitted). In explaining its reasoning, the Court

offered the example of a hypothetical county ordinance abolishing

a common law defense:

A contrary holding would open the door for

counties to enact a variety of laws in areas

which have heretofore been viewed as the

exclusive province of the General Assembly

and the Court of Appeals. For example, could

a county ordinance authorize in the circuit

court and the District Court negligence actions

in which contributory negligence would not be

a bar? Could a county ordinance provide for

breach of contract suits upon “contracts” not

supported by consideration, or where the parol

evidence rule is inapplicable? We believe that

the answer is “no.” These, and many other

legal doctrines, are matters of significant

interest to the entire State, calling for uniform

application in state courts. They are not

proper subject matters for “local laws.”

Id. at 20-21; see also H. P. White Lab. v. Blackburn, 372 Md. 160,

169-70, 812 A.2d 305 (2002) (creation of judicial remedy exceeded

charter county’s powers).

In Gunpowder Horse Stables, Baltimore County had attempted

to legislate a form of strict liability for actions involving injuries

caused by domestic animals. 108 Md. App. 612. Under the

ordinance at issue in that case, an owner of a domestic animal would

incur liability for such injuries without regard to the owner’s

negligence or knowledge of the animal’s propensities. Id. at 626.

21

(...continued)

the power to alter the common law on torts; in fact, the ordinance in

question, codified then as 1972 Montgomery County Code 29-46,

expressly provided that the availability of remedies through the

commission procedures had no effect on a person’s recourse to the

remedies in court. See also Gunpowder, 108 Md. App. at 631 (explaining

that Investors “did not involve a new cause of action”). In any event, after

Investors, the courts addressing new judicial causes of action have focused

on the relatively concrete “local law” requirement rather than the more

abstract inquiry of whether judicial remedies fall within a county’s

substantive legislative jurisdiction. See, e.g., Edwards, 379 Md. 278.

162 [96 Op. Att’y

The court noted that the ordinance made the plaintiff’s burden of

proof “less rigorous than under common law negligence or strict

liability” and thus “create[d] an alternative and new cause of action.”

The court then found that, while the regulation of animals in the

county was a matter for local laws, the creation of a remedy was not:

We do not call into question Baltimore

County's authority to regulate animals and

matters related to their presence within its

borders pursuant to Article XI-A and the

Express Powers Act. As McCrory

unequivocally states, however, a county may

not create a new cause of action between

private parties concerning matters of statewide

concern.

The common law of Maryland recognizes only

two causes of action against an owner of a

domestic animal: negligence and strict

liability. Unlike the Ohio and Massachusetts

statutes noted previously, [the county

ordinance] was not enacted by the State's

legislative body. If we were to uphold [the

ordinance], we would be placing our

imprimatur on a theory of liability not

recognized by the General Assembly or the

common law. Additionally, it would be a

theory of liability selectively and rarely

imposed.

Id. at 633.

In short, the elements of, and defenses to, a common law cause

of action are matters affecting the people of the State generally and,

as with the conduct of persons outside a county’s geographical

boundaries, are not subject to local government regulation.22

22

This Office has consistently advised that changes to common

law causes of action are not properly the subject of local laws. See Letter

of Assistant Attorney General Kathryn M. Rowe to Senator Richard F.

Colburn (March 8, 2004) (advising that “to the extent that” 2004 Senate

Bill 671 would create new tort defenses, it would not be “a matter for local

(continued...)

Gen. 139] 163

b. Whether the Kent County Fish and Seafood Operations

Law is a Local Law

In an express departure from the common law, Chapter 89

seeks to “[l]imit the circumstances under which commercial seafood

and fishing operations that adhere to generally accepted practices

may be considered a nuisance or trespass.” §89-1(B). To achieve

that objective, it provides that “neighboring property owners shall

have no recourse” against “the inherent effects” of a commercial

seafood and fishing operation “conducted within standard and

generally accepted ... industry practices.” §89-3(A) (emphasis

added). Chapter 89 would require dismissal of an action for “the

interference of use and enjoyment of property” when the defendant

has conducted the operation “substantially in accordance with

generally accepted seafood and fishing industry practices” at the site

for at least one year and “such operation was not a nuisance at the

time it began operation.” §89-3(B).

As noted earlier, under the common law, neither trespass nor

nuisance requires a property owner to prove a breach of a standard

of care. Rather, each of these torts involves an interference with a

property interest. By conditioning a plaintiff’s “recourse” on proof

of a breach of a standard of care, Chapter 89 would remove strict

liability nuisance and trespass from the remedies available to

neighboring property owners. Stated another way, it would grant

immunity to defendants from such claims. Like the ordinance in

Gunpowder Horse Stables, it states “a theory of liability not

recognized by the General Assembly or the common law.” 108 Md.

App. at 633. Accordingly, §89-3 exceeds the local law constraint

on the County’s legislative powers.

Chapter 89 also purports to affect the defenses to common law

nuisance and trespass actions. It shortens the 20-year period for the

acquisition of a prescriptive nuisance to one year and confers

immunity on certain operations conducted for that period and in

conformity with the standard of care of the industry. And, through

22

(...continued)

laws”); see also Letter of Assistant Attorney General Craig A. Nielsen to

Edward A. Hammond, Jr., Attorney for County Commissioners of

Worcester County (October 20, 1998) (advising that a code county lacked

the authority to legislate on defenses to nuisance actions arising out of

agricultural operations).

164 [96 Op. Att’y

the notice provisions in §§89-6 and 89-7, it enables a defendant to

assert the defense that the plaintiff “came to the nuisance” – a

defense not recognized in Maryland. All three propositions state

theories not recognized in the common law and exceed the County’s

authority to enact “local laws.”

In sum, the limitations that Chapter 89 places on trespass and

nuisance actions address matters of statewide concern. Accordingly,

the provisions of that ordinance concerning common law tort actions

are not properly part of a “local law” within the County’s legislative

powers.

2. Effect of §232 on a County’s Authority Concerning

Common Law Torts

As outlined in Part I.A of this opinion, as of October 1, 2011,

State law provides that Kent County “may adopt an ordinance,

resolution, or regulation or take any other action that the governing

body considers necessary to authorize a person to [engage in certain

activities relating to a seafood business] and [h]arvest seafood.”

Article 25, §232(a). We turn to the question whether the power to

“authorize” seafood operations under §232 includes the power to

grant immunity to seafood operations that cause private nuisances or

trespasses.

a. Statutory Language

Again, the words of the statute, when unambiguous on their

face and in context, control. That canon of statutory construction is

particularly forceful here in light of the “long-standing rule of

statutory interpretation that the common law will not be repealed by

implication.” Suter v. Stuckey, 402 Md. 211, 232-33, 935 A.2d 731

(2007). Under that rule, “[a] statute is ‘not presumed to repeal the

common law further than is expressly declared, and ... a statute,

made in the affirmative without any negative expressed or implied,

does not take away the common law.’” Id.23

23

The presumption against a repeal of the common law is based on

the statement in Article 5 of the Maryland Declaration of Rights that a

person is entitled to the common law, except as modified by the

Legislature. Arundel Corp. v. Marie, 383 Md. 489, 502-3 n.5, 860 A.2d

886 (2004).

Gen. 139] 165

On its face, §232 merely delegates to a county the power to

authorize seafood operations. It does not authorize conduct that

otherwise constitutes a trespass or nuisance; in fact, it does not

address common law remedies at all. Under Maryland law, “[t]he

delegation of a power to do an act, whilst conferring full authority

to perform the act itself, does not, therefore, without more,

essentially and without exception, carry the right to so do it as to

inflict loss or injury upon an innocent individual.” Taylor v.

Baltimore, 130 Md. 133, 144-45, 99 A. 900 (1917) (city’s authority

to construct sewage treatment plant did not include authority to

operate it as a nuisance); see also WSSC v. CAE-Link, 330 Md. at

128-29 (federal court’s order to the defendant to construct sewage

sludge composting facility in a certain county did not include power

to operate it as a nuisance); cf. Evans v. Burruss, 401 Md. 586, 610,

933 A.2d 872 (2007) (the right to conduct a private nuisance is “not

a normal element of rights arising out of the issuance of building

permits”). In simply making the delegation of power expressed in

§232, the General Assembly did not authorize a county to deprive a

person of common law remedies for interference with that person’s

property rights.

b. Comparison to “Right to Farm” Legislation and other

Laws

A comparison to other statutes pertaining to county powers and

tort immunities is instructive. As noted in Part II.A above, the

Legislature created an express limited immunity for nuisances

arising out of certain agricultural operations operated in

conformance with the applicable laws and standard of care. CJ

§5-403. That statute explicitly declares certain effects of farming,

including “any sight, noise, odors, dust, or insects,” not to be

nuisances in certain circumstances and also provides that “[a] private

action may not be sustained on the grounds that the operation

interferes or has interfered with the use or enjoyment of other

property....” Id. The Legislature has created a similar exclusion for

agricultural operations in defining the powers of the Secretary of

Health and Mental Hygiene with respect to statutorily-defined

nuisances. See Annotated Code of Maryland, Health-General Article

("HG"), §20-301 et seq. While that statute defines “nuisance”

generally as “a condition that is dangerous to health or safety,” it

expressly excludes from the definition “any condition resulting from

a farm operation following generally accepted agricultural practices

166 [96 Op. Att’y

that are not creating a condition dangerous to health or safety.” HG

§20-301(a)-(b).24

These statutes show that when the Legislature wishes either to

create immunity from liability for common law torts, or to exclude

the effects of certain activities from the definition of a “nuisance,”

it does so expressly and not by implication.25 In contrast, §232 does

not modify the common law on nuisance by excluding certain effects

and operations; does not state that a private action “may not be

sustained” for the interference with the use or enjoyment of other

property; does not authorize counties to allow a properly conducted

operation that creates a private nuisance; does not define the term

“nuisance” specially; and, in fact, does not mention nuisance at all.

The Legislature has not elsewhere created immunity for seafood

operations conducted in accordance with industry practices.26 And

24

The Legislature has also created a program, the Maryland

Agricultural Land Preservation Foundation (“MALPF”), that encourages

the passage of local measures to support ?normal” agricultural activities.

MALPF was established to purchase easements to preserve the use of land

in the State for agricultural purposes. Annotated Code of Maryland,

Agriculture Article (“AG”), §2-501 et seq. The availability of that

program in a particular county is conditioned on the existence of county

regulations providing that “[a]ll normal agricultural operations performed

in accordance with good husbandry practices which do not cause bodily

injury or directly endanger human health are permitted, including, but not

limited to, sale of farm products....” AG §2-513(a)(3); see also State

Finance and Procurement Article, §5-408(f) (conditioning MALPF’s

purchase of an agricultural easement on the affected county's adoption of

a comprehensive plan that “describes ... the ordinance, regulations, and

procedures the county is using ... to support the ability of working farms

to engage in normal agricultural and forestry activities ....”). There is no

analogous program for land used for seafood operations.

25

The Legislature has also enacted specific tort immunities for

other entities and persons. See, e.g., CJ §5-403.1 (sport shooting ranges),

CJ §5-415 (common carrier carriers refusing to deliver bee colonies), CJ

§5-417 (corporate directors), CJ §5-424 (veterinarians), CJ §5-804

(owners of caves. But see Jackson, 2011 Md. LEXIS 639, *43

(invalidating statutory immunities in certain lead paint cases under Article

19 of the Maryland Declaration of Rights).

26

Seafood operations are addressed by various provisions in the

Agriculture Article, see, e.g., AG §10-1001 et seq. regarding seafood

(continued...)

Gen. 139] 167

§232, given the plain meaning of its text, does not provide the basis

for a county to enact one.

c. Legislative History

The legislative history of §232 confirms our view that it does

not empower a county to repeal the common law on nuisance. As

noted in Part I.C.3 of this opinion, §232 was introduced in 2004 as

Senate Bill 671. If enacted in its original form, that bill would have

authorized Dorchester County to “adopt an ordinance, resolution, or

regulation or take any other action that [it] considers necessary to

protect a person’s right to harvest seafood” (emphasis added).

In responding to a question about Senate Bill 671 relating to

the General Assembly’s power to enact legislation pertaining to one

county, this Office advised that it understood the bill to be “aimed

at recent instances in which persons [who] have recently moved to

the county have objected to traditional seafood harvesting practices

as nuisances or as otherwise adversely impacting on their property

rights.” Letter of Assistant Attorney General Kathryn M. Rowe to

Senator Richard F. Colburn (March 8, 2004). The letter further

stated, “The bill is intended to permit the County to adopt an

ordinance along the lines of those that have been adopted in various

counties to protect the right to farm.” Id.27 That understanding is

confirmed by a drafter’s note in the bill file stating, “Model bill after

HB 143 - ‘St. Mary's County Right to Farm....’” House Bill

143(2002), in similar language, would have granted a county the

power to take measures to “authorize” agricultural operations.

However, the grant of authority in the first reader of Senate Bill 671

26

(...continued)

marketing, and the Natural Resources Article. With the exception of the

immunity for aquacultural operations granted in CJ §5-403, see footnote

13 above, the Code does not contain immunity provisions analogous to

those applicable to agricultural operations.

27

The advice letter advised that the legislation, if passed, would

not intrude upon the express powers granted to Dorchester County, a

charter county, by Article 25A, §5A, insofar as it addressed nuisance

remedies, because they were a matter of State concern not within a charter

county's express powers. Therefore, the legislation comported with

Article XI-A of the State Constitution, which prohibits the General

Assembly from enacting a public local law for a charter county on a

subject within the express powers of the county.

168 [96 Op. Att’y

lacked the substantive immunity provisions underpinning the “right

to farm” bill.

As it progressed through the General Assembly, Senate Bill

671 was significantly amended. As a result of those amendments, all

references to a “right to harvest seafood” and to the protection of

such a right were deleted from the bill. The bill was amended to

broaden the range of seafood-related activities on which Dorchester

County could act, to require the consent of the Secretary of Natural

Resources to actions taken under the act, and to expressly provide

that, in case of conflict, State and federal laws would preempt the

county’s laws and actions.

As described above, during its 2011 regular session, the

General Assembly enacted Chapter 385 to extend §232 to every

county. As introduced, the 2011 bill would have been enacted

[for] the purpose of expanding the application

of certain provisions to authorize counties to

adopt a certain ordinance, resolution, or

regulation relating to the right to engage in the

seafood industry and to harvest seafood ...;

and generally relating to the authority of the

governing body of a county to authorize a

person to engage in certain activities related to

the seafood industry and to harvest seafood.

House Bill 1240 (first reading, February 21, 2011) (emphasis added).

As in 2004, the General Assembly amended the bill to delete any

reference to a “right” to harvest seafood or engage in the industry.

The General Assembly thus chose not to declare for seafood

operations a “right” that would necessarily take priority over the

rights of others to the use and enjoyment of their property.28

28

The fiscal notes for the 2007 and 2008 amendments of §232,

which merely extended the statute to additional counties, contain facts on

the importance of the seafood industry to those counties, but do not

otherwise address tort immunity. See, e.g., Fiscal and Policy Notes for

House Bill 54 (2007) and House Bill 1493 (2008). The sponsor of House

Bill 1493 (2008), however, believed that adding Calvert County to the list

would enable it to enact an ordinance to “protect the watermen from

nuisance suits brought by newly arrived neighbors.” (April 1, 2008, Letter

of Delegate Sue Kullen to the House Education, Health, and

(continued...)

Gen. 139] 169

d. Summary

The plain language of §232, especially when viewed in the

context of the right to farm statutory scheme, the General

Assembly’s deletion of any reference to a “right” to fish from the

legislation, and the presumption against repeals of common law

remedies, does not authorize a county to limit those remedies.

D. Whether Decision by Resolution Board can be a Prerequisite

to a Civil Action

In addition to setting substantive limitations on tort actions,

Chapter 89 also purports to modify the procedural and evidentiary

rules that apply to such actions. It provides that, before filing in

court an “action alleging that a seafood or fishing operation has

interfered with the [plaintiff’s] reasonable use or enjoyment of real

property or personal well being,” a plaintiff must obtain a “final

judgment” of the Resolution Board on whether the defendant’s

“practice does or does not conform to generally accepted practices.”

§89-3(C). The ordinance further provides that the Board’s decision,

once final, “creates a rebuttable presumption ... admissible in

evidence” in a subsequent civil proceeding in the circuit court or

District Court in Kent County. §89-5(C). You asked whether a code

county may condition the filing of a civil action on the issuance of

an administrative decision by a county board and require the courts

to accord that decision a presumption of correctness.

1. Requirement that a Plaintiff Obtain a Resolution

Board Decision

The requirement that a plaintiff obtain a decision from an

administrative body as a prerequisite to filing suit essentially creates

an administrative exhaustion requirement for access to the courts.

We need not decide whether this requirement would be analyzed as

28

(...continued)

Environmental Affairs Committee.) As discussed above, the plain

language of §232 as it was ultimately enacted, especially viewed in the

context of the right to farm statutory scheme and the presumption against

repeals of common law remedies, does not effectuate that intent.

170 [96 Op. Att’y

an element of subject matter jurisdiction29 or under the rubric of

primary jurisdiction. In either event, it is neither a local law nor

within the substantive powers granted to a code county. Statutes

pertaining to agricultural operations again illustrate the way in which

the Legislature delegates such power when it chooses to do so.

With respect to subject matter jurisdiction in circuit court, the

State Constitution establishes a circuit court in each county, with the

jurisdiction existing at the time of adoption of the Constitution and

“the greater or lesser jurisdiction hereafter prescribed by law.”

Maryland Constitution, Article IV, §20. The General Assembly has

regulated the circuit courts’ jurisdiction through a number of

enactments. Under CJ §1-501, each circuit court “has full common-

law and equity powers and jurisdiction .... and all the additional

powers conferred by the Constitution and by law, except where by

law jurisdiction has been limited or conferred exclusively upon

another tribunal.” For instance, the General Assembly has “by law”

conditioned a person’s right to file a nuisance action against “an

agricultural operation” on the filing and disposition of a complaint

with any local agency “authorized to hear a nuisance complaint

against an agricultural operation,” or, in the absence of such an

agency, with the Agriculture Department’s mediation program. CJ

§5-403(e); see also AG §§1-1A-01 et seq. (requiring the Agriculture

Secretary to establish a mediation program for “agriculturally related

disputes”). The Health Claims Arbitration Act similarly conditions

the filing of a claim for a medical injury on certain procedures. CJ

§3-2A-01 et seq.; see also Jackson, 2011 Md. LEXIS 639, *36-39

(distinguishing between conditions validly placed by the Legislature

on access to the courts and the denial of that access in violation of

Article 19 of the Maryland Declaration of Rights). By contrast, the

General Assembly has not placed conditions on circuit court

jurisdiction over common law tort actions involving seafood

operations.

With respect to subject matter jurisdiction in the District Court,

the State Constitution provides: “[t]he District Court's jurisdiction

shall be uniform throughout the State.” Maryland Constitution,

Article IV, §41A. If the County’s administrative exhaustion

29

See Maryland-National Capital Park & Planning Comm’n v.

Crawford, 307 Md. 1, 13-14, n.4, 511 A.2d 1079 (1986) (exhaustion of

remedies requirement often treated as a jurisdictional issue, although it is

not a limitation on subject matter jurisdiction of a trial court).

Gen. 139] 171

requirement were interpreted to apply statewide, it would not be a

local law. If it were interpreted only to apply to filings with the

District Court in Kent County, it would be invalid because the

District Court’s jurisdiction would not be uniform throughout the

State. Either way, the District Court’s jurisdiction is not a local

matter. While the Legislature has expressly granted a code county

the authority to designate the violation of a county ordinance as a

“civil infraction” triable in the District Court, see Article 25B, §13C,

it has not delegated such authority over common law tort actions.

The requirement to obtain an administrative decision could also

be viewed as a matter of primary jurisdiction. The Court of Appeals

has described that concept as follows:

“Primary jurisdiction”... applies where a claim

is originally cognizable in the courts, and

comes into play whenever enforcement of the

claim requires the resolution of issues which,

under a regulatory scheme, have been placed

within the special competence of an

administrative body; in such a case the judicial

process is suspended pending referral of such

issues to the administrative body for its views.

Arroyo v. Board of Education of Howard County, 381 Md. 646, 658,

851 A.2d 576, 583-84 (2004) (quoting United States v. Western

Pacific R. Co., 352 U.S. 59, 63-64 (1956)). By adopting Chapter 89,

the County has attempted to place the resolution of one issue – a

defendant’s operation in accordance with the industry’s accepted

practices – “within the special competence of an administrative

body” and to suspend the judicial process in the interim. As

explained above, however, the regulation of a person’s common law

nuisance and trespass actions lies beyond a code county’s authority

to enact local laws and thus beyond a county agency’s primary

jurisdiction.30

30

A code county may well have the authority to appoint a

resolution board as a voluntary resource for parties that wish to resolve a

dispute. See Article 25B, §13, incorporating Article 25A, §5(T)

(authorizing code counties to enact ordinances for “the protection and

promotion of public .... welfare” relating to subjects such as waste disposal

and the use of streets and structures); see also 62 Opinions of the Attorney

General 275, 306-08 (summarizing the scope of code counties’ powers).

172 [96 Op. Att’y

2. Evidentiary Presumption Concerning Resolution

Board Decision

A rebuttable presumption is an evidentiary rule. See Carrion

v. Linzey, 342 Md. 266, 278-80, 675 A.2d 527 (1996)(presumption

in the Health Claims Arbitration Act); Attorney General v. Johnson,

282 Md. 274, 385 A.2d 57 (1978), appeal dismissed, 439 U.S. 805

(1978), overruled on other grounds by Newell v. Richards, 323 Md.

717, 729, 594 A.2d 1152 (1991). The Constitution assigns to the

Court of Appeals the power to “adopt rules ... concerning the

practice and procedure” in the courts. Maryland Constitution,

Article IV, §18(a); see also CJ §1-201. Those rules “have the force

of law until rescinded, changed or modified” by the Court or

“otherwise by law” – a phrase that refers to State law, not county

enactments. See Hauver v. Dorsey, 228 Md. 499, 502, 180 A.2d 475

(1962).

Title 5 of the Maryland Rules contains the Court’s evidentiary

rules; they apply to “all actions and proceedings in the courts of this

State,” with the exception of twelve types of proceedings, not

including tort actions. Maryland Rule 5-101; see also Maryland

Rule 1-101(e) (Title 5 “applies to all actions in the courts of this

State, except as otherwise provided by rule or statute”). None of the

rules would accord special weight to a decision of the Resolution

Board. The General Assembly has created evidentiary rules and

presumptions in various statutes; but have found no statute that

would require a court to give special weight to a decision of the

Resolution Board.

Neither the Maryland Constitution nor the General Assembly

has granted to a code county the power to regulate the admissibility

of evidence in the courts. Indeed, local variations of court rules have

largely been abolished. A circuit court may only adopt local rules on

five subjects (memorial proceedings, auditors, certain trustees’

compensation, certain bail bond matters); pleadings and evidence are

not among them. Maryland Rule 1-102. The District Court was

created as a unified court with uniform statewide jurisdiction

precisely to eliminate the “gallimaufry” of lower court procedures

that had existed in each political subdivision. See State v. Smith, 305

Md. 489, 494, 505 A.2d 511 (1986).

In short, the evidentiary presumptions applicable to common

law actions are subject to modification by the Judiciary and the

Legislature, but not by local governments. Accordingly, in our view,

Gen. 139] 173

Kent County lacks authority to create presumptions concerning the

weight and admissibility of a Resolution Board decision.31

3. Summary

In our opinion, a code county lacks the power either to impose

conditions on a plaintiff’s access to the courts or to regulate the

admissibility and weight of evidence in a common law action in the

courts. In both cases, the short answer is that those provisions would

not be a local law within the power of the county.

III

Conclusion

For the reasons set forth above, our opinion is as follows:

1. Section 232 adds “seafood business” and “seafood

harvesting” to the subjects on which counties may legislate.

However, it does not empower a county to enact legislation that

would otherwise be preempted by State laws and regulations.

Rather, it provides the county and the Secretary with a mechanism

by which to determine whether proposed county legislation would

likely be preempted by the laws, regulations, and program guidance

administered by the DNR.

2. The §232 requirement that the Secretary consent to county

measures applies only to actions taken by a county under that statute.

Section 232 does not require a code home rule county to obtain the

consent of the Secretary before exercising its powers to regulate land

use under Annotated Code of Maryland, Article 66B.

31

Chapter 89 provides that the presumption of correctness attached

to a Resolution Board decision would apply in the District Court in, and

the Circuit Court for, Kent County. §89-3(C)(3). Even if construed to

apply only in those courts, the provision would likely fall afoul of the local

law requirement. See Holiday, 377 Md. at 317. The District Court is a

statewide court, and, while venue in a trespass action would only lie in

Kent County, CJ §6-203(b)(iv), a nuisance action against a non-resident

individual, a corporation with its principal office elsewhere, certain

multiple defendants, and certain other defendants could be brought in

another county. CJ §§6-201 and 6-202(11).

174 [96 Op. Att’y

3. Neither the Maryland Constitution nor other State law

confers on a code home rule county the authority to enact “right to

fish” legislation that restricts the filing of common law trespass and

nuisance actions. Although the General Assembly has expressly

repealed aspects of those common law torts as against agricultural

operations, it has not done so for seafood operations. Section 232

did not authorize the passage of local “right to fish” laws.

4. Neither the Maryland Constitution nor other State law

confers on a code home rule county the authority to impose

conditions on a person’s access to a judicial remedy for common law

torts arising out of the conduct of a seafood operation. A code

county also lacks the authority to create evidentiary presumptions for

such an action.

Douglas F. Gansler

Attorney General

Ann MacNeille

Assistant Attorney General

Robert N. McDonald

Chief Counsel

Opinions and Advice