# Maryland Attorney General Opinion 96 OAG 139.pdf

> Maryland Attorney General Reports · December 21, 2011

URL: https://www.frixlaw.com/law-library/cases/11146240

## Case

- **Court:** Maryland Attorney General Reports
- **Decided:** December 21, 2011
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11146240

## How later opinions describe it (automated extraction)

- noting the “dual nature” of the permitting process for waste-disposal operations

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11146240. Public record. Not legal advice.