Worton Creek v. Claggett

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In the Circu it Court for K ent Coun ty Civil No. 14-C-01-5025 IN THE COURT OF APPEALS OF MARYLAND No. 90 September Term, 2003 ______________________________________ WORTON CREEK MAR INA, LLC, ET AL. v. HERSCHELL B. CLAGGETT ____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Greene, J. ______________________________________ Filed: June 7, 2004 We are asked to determine the validity of a Kent County ordinance that allows commercial boat moorin gs located w ithin anothe r riparian s ex tended pro perty line to rema in in place through two months of the wild waterfowl hu nting season, rendering the riparian s waterfowl huntin g blind sites unu sable. The Maryland State Boat Act specifically provides that a local authority may not establish any regulation of a local nature that do es not conform to the State s regulations. The State regulation prohibits the placement of moorings that infringe on the rights of riparian property owners. The right to license riparian shorelines that meet specific requirements for the purpose of hunting wild waterfowl is a riparian property right. The amended local ordinance is preempted by the State B oat Act be cause it permits an act p rohibite d by the S tate law . Furtherm ore, the local ordinance exceeds the authority delegated by the enabling legislation which requires the local ordinance to conform to the State program for the placement of buoys, mooring buoys, and other apparatus used to secure boats in the waters of the State. I. Marina Petitioners, Worton Creek Marina, LLC ( Worton Creek ), and Lankford Bay Marina, Inc. are marina owners in Kent County, Maryland.1 The marinas are the beneficiaries of a grandfather provision of the Kent County Code that permits group moorings in existe nce prio r to July 1, 1 980, at the discretion of the Public Landings and Facilities Board ( Board ) , to continue to exist outside o f their extend ed prope rty lines. 1 The Ke nt Coun ty Commiss ioners also a ppeal the decision of the Court of Special Appeals. They are two of seven marinas in the County that have permits to maintain commercial moorings outside of their extended property lines.2 The perm it is obtained p ursuant to A rticle 68 of the Co de of Pu blic Local La ws of K ent Coun ty (1994) ( K CC ), en titled Boats and Boatin g. On the oppos ite shoreline from Worton Creek Ma rina is 340 acres of land w ith more than 4,000 feet of sho reline ow ned by H ersche ll B. Cla ggett. Fifty-four of the commercial boat moorings maintained by Worton Creek are located within Mr. Claggett s extended property line, and in some instances a re located within 100 f eet of Mr. Clagg ett s shoreline. Mr. Claggett is an avid waterfowl hunter who has licensed his shoreline for that purpose pursuant to Md. C ode (197 3, 2000 R epl. Vol.), §§ 10 -607 to 10-609 of the Natural Resources Article (NRA ). Pursuant to his license, Mr. Claggett established stationary blinds and offshore blind sites located within his extended property line for use in the 2000-2001 hunting season.3 The controvers y in this matter arose when, in August of 2000, Mr. Claggett informed Worton Creek that he intended to use his licensed blind sites for the coming hunting season. Mr. Claggett asked the marina to remove all boats moored within his extended property line 2 Extended Property Line is defined as [t]he dividing line between the adjoining riparian properties which extends from the shore. KCC § 68-1. 3 An offshore blind site is defined as: a specific location in the water where a person may hunt w ild waterfo wl from a boat that is tied to or anchored at a stake which has been licensed pursuant to [NR § 10-601 et seq.]. -2- area by the September 1 start date of open waterfowl hunting season.4 Worton Creek, however, refused to remove the boats. After unsuccessfully appealing to the Board for assistance with havin g the boats removed, Mr. Claggett filed, in the Circuit Court for Kent Cou nty, the first of two declaratory judgment actions nam ing the Co unty Commissioners as defendants. Prior to August 17, 2001, KCC § 68-10, entitled Mooring requirements, contained a paragraph that stated: Moorings in waterfowl-blind areas shall be cleared of boats during designated waterfowl hu nting season unless w ritten permission is given by the riparian property owner. KCC § 68-1 0(G). In the first s uit, Mr. C laggett s ought, inter alia, a declaration from the Circuit Court regarding the meaning of designated waterfowl season as it wa s used in that sect ion. After a hearing h eld on May 5, 2001, the Circuit Court issued a declaration stating that KCC § 68-10(G) applies to all waterfowl hunting seasons in Kent County, Maryland as those seasons are , from time to time, design ated by the M aryland Dep artment of Na tural Resou rces. Add ition ally, the court ordered the rem oval of all boats interfering w ith Mr. Claggett s hunting sites to a distance that w ould assure safe hunting from those sites. The Commission did not appeal that decision. On May 1, 2001, Commission president, Ronald H. Fithian, introduced Bill No. 7- 4 The wild waterfowl hunting open season is set by the Maryland Department of Natural Resources in conf ormity w ith the fe deral m igratory b ird rules and reg ulations . NR § 19-407(b). The 2000 to 2001 waterfowl hunting season began on September 1, 2000. -3- 2001 to , inter alia, amend KCC § 68 .10(G) to read as follows: All vessels on commercial mooring buoys shall be removed from the m ooring bu oys by Novem ber 1, in each year, until March 1 of the fo llowing year, u nless written permission is given by the rip arian prope rty owner to m aintain the ve ssels on the com mercial mo oring buo ys which m ay be located in front of the riparian owner s property between November 1, in each year, and Marc h 1 of the follow ing year. The amendment deleted the prior reference to designated waterfowl season as the deadline for remov ing commercial m oorings and replaced it with the Novem ber 1 deadlin e. The a mend ment w as pass ed on J uly 3 and took ef fect on Augu st 17, 20 01. On Aug ust 16, 2001, M r. Claggett file d a secon d suit seekin g a declara tion that Bill No. 7-2001 and Chapter 68 of the Code are illegal, unconstitutional, void and of no force and effect. He also sought an injunction enjoining the Commission from enforcing the provisions of the B ill. On August 23, 2001, Worton Creek, joined by other local marinas, filed a motio n to inter vene. The motion was granted by the trial court and the marinas were design ated pa rties to the suit. After an evidentiary hearing held on September 13, and a second hearing for closing argumen ts held on Nov ember 19, the Circu it Court ruled that the amended local regulation was in conflict with the DNR regulation which provides that a local regulation may not infringe upon the r ights of any ripa rian own er. The C ourt further found preemption by implication existed bec ause the amended regulation conflicted with the comprehensive system for the licensing of water in fro nt of riparian land for hu nting wild w aterfowl. -4- On appeal, the Court of Spec ial Appeals held that the am endment to K ent County s local boat mooring ordinance was preempted by conflict, of th e prohibit-pe rmit sort, with the State Boat Act and regulations promulgated thereunder; and also was preempted by conflict, of the frustration of purpo se sort, with the State wild waterfowl laws. County Comm issioners of K ent Coun ty v. Clagg ett, 152 Md. A pp. 70, 95, 831 A .2d 77, 91 (2003). With regard to the State Boat Act, the Court of Special Appeals found: As amended, however, the local ordinance permits for two months a year grandfathered marinas to u se their moo rings to do what the State Boat Act and accompanying regulations prohibit infringe on the rights of riparian prop erty owners to use their licensed shorelines for wild waterfowl hunting by surrounding their licensed blin ds with boats. Because the local boat mooring ordinance permits an activity prohibited by the State boat m ooring law s, it is preempte d by conflict. Id. at 95-96, 831 A.2d at 92. In discussing the wild waterfowl laws, the Court of Special Appeals found: [E]ven though the fields of legislation are not the sa me, that is boat mooring and wild waterfowl hunting, the amended local boat mooring regulation in this case frustrates the purpose of the State blind site licensing laws by preventing holders of licensed shorelines from using them during part of the wild waterfowl season. The full purpose of the State waterfowl hunting laws set forth in NR 10-601 et seq. is to with strict regulation allow priorities of people, w ith rip arian prop erty rights having top preference, to license shorelines for hunting on their waters, by them or by others during the season designated by the DNR. The amended local ordinance in this case stands as an obsta cle to that purpose, because it effectively prevents the license holders from being able to use their blind sites. County C ommis sioners of K ent Coun ty, 152 Md. App. at 97, 831 A.2d at 92-93. -5- We granted certiorari to cons ider thes e issues . Worton C reek v. Cla ggett, 378 Md. 614, 837 A.2d 925 (2003). II. KCC § 68-10(G), as amended, permits commercial group moorings to remain in waters that have been licensed by the State for the purpose of hunting wild waterfowl for two months of the ope n hunting season. Th e question is whether the amended local ordinance is preempted by the State B oat Act and the w ild waterfowl hun ting regulations. The Co urt of Special Appeals found that the amended local ordinance was preempted by the State Boat Act by application of the prohibit-permit type of preemption (see infra pp. 13-17), and, relying on the federal frustration of purpose case law, the Court also found that the amended ordinance frustrated the purpose of the State wild waterfowl laws. The State Boat Act By adoption of Chapter 69, Acts of 1960, now codified at NR § 8-704, the General Assemb ly passed leg islation autho rizing DN R to adop t regulations relating to the placement of buoys, mooring buoys, and other a pparatus u sed to secu re, berth, or m oor vessels in the waters of the Sta te. NR § 8-704(b). T he purpo se of the statu te is to protec t the public safety, welfare, and recreational interests in waters of the State. Id. The statute further provides that [a] municipality or other local authority may not establish any regulation of a local nature which does not conform with the Department s regulations. NR § 8-704(d). Pursuant to the statute, DNR adopted regulations codified at COMAR 08.04.13.01 -6- et seq. The stated purpose of the regulations is, to establish procedures and criteria for the placement of moorings in the waters of the State in order to prevent the placement and use of moorings from interfering w ith access to and use of the waters of the State b y the general p ublic and in order to protect public safety and welfare, commercial fisheries, and recreational interests in the waters of the State. COMAR 08.04.13.01(A). Section 08.04.13.02 sets forth the general conditions for the placement of mo orings. It regulates where moorings may and may not be located. Section 08.04.13.03 addresses the requirements for the establishment of group moorings. Section 08.04.13.04 establishes that either DNR or a local government that has adequate legal authority to impose the conditions set forth in these regulations will establish a registration program for all mooring facilities located within the jurisdiction of the locality. The section further provides that if a local government chooses to administer its own program, the local program may enco mpass all or part of the standards set forth in this regulation. COMAR 08.04.13.04(B). Section 08.04.13.05 governs enforcement of the regulatio ns. A nd la stly, section 08.04.13.06, entitled Property Rights provides [t]he placement of a mooring pursuant to these regulations does not create a property right or an exclusive privilege and does n ot autho rize an in fringem ent upo n the rig hts of a ny riparian proper ty owne r. Pursuant to NR § 8-704(d), Kent County developed a plan for local administration of a mooring program. The proposed Mooring Buoy Regulations fo r Kent Coun ty were submitted to DN R for r eview . By letter d ated Se ptemb er 9, 198 0, the proposed regulations were determined to be in compliance with COMAR regulation 08.04.1 3.04B. -7- The program as approved by DNR contained language requiring boats to be removed from moorings located within the area of licensed waterfowl blind sites by the beginning of wild waterfowl season. The amended version, however, replaces the reference to removal by the beginning of hunting season with a Novem ber 1 deadline tw o month s into the w ild waterf owl hu nting se ason. Petitioners argue that because COMAR 08.04.13.04(B) does not require local programs to encom pass all of the standards set forth in the State program, the local program is not required to adopt language similar to COMAR 08.04.13.06, which prohibits the placement of mo orings th at infrin ge upo n the rig hts of rip arian pr operty ow ners. They further argue that th e right to licens e riparian sho relines for the purpo se of hun ting wild waterf owl is n ot a ripar ian righ t within the me aning o f CO MA R. We beg in by discussing the second contention first. Riparian Rights A person who o wns p roperty bo rdering on, bounded by, fronting upon, abutting or adjacent and contiguous to a body of water is know n as a rip arian. Becker v . Litty, 318 Md. 76, 82, 566 A.2d 1101, 1104 (1989) (internal citation omitted). In addition to the traditional property rights that accomp any the own ership of lan d, riparian pro perty ownership includes rights regarding the use of the water that borders the land. Those rig hts are create d by both comm on law and by sta tute. Id. At common law, the fundamental riparian right on which all others depend, and -8- which often constitutes the principal value of land [was] access to water. People s Counsel for Baltimore County v. Maryland Marine Manufacturing Co., Inc., 316 Md. 491, 502, 560 A.2d. 32, 37 (1989) (quoting Steinem v. Romney, 233 Md. 16, 23, 194 A.2d 774, 777 (1963)). The rights w ere ge nerally lim ited to ac cretion a nd relict ion. People s Counsel, at 501, 5 60 A.2 d at 37. Common law riparian rights, however, are not the only ones recognized in Maryland. The General Assembly has by statute granted riparian property owners additional rights. See Harbor Island Marina v. Calvert Co., 286 Md. 303, 316, 407 A.2d 738, 745 (1979) ( Beginning in 1745, and throughout the ensuing years, there have sporadically been legislative enactments recognizing, expanding, and redefining the rights and privileges riparian owners were entitled to exercise in the tidal waters abutting their lands. ) (Internal citations omitted.) Those statutory rights include the right to make improvements into the water in fron t of ripa rian pro perty, (see People s Counsel, 316 Md. at 502-503, 560 A.2d at 37-38, and cases cited therein), 5 and a preference in obtaining a license for the establishment of offshore stationary blinds or blind sites for hunting wild wa terfowl in the water in front of riparian prop erty. Md. Co de (1973 , 2000 Re pl. Vol.), § 10-607 of the Natural Resources Article. See also, Dep t of Natural Resources v. Adams, 37 Md. App. 165, 177, 377 A.2d 500, 507 (1977) (stating that the duck blind laws are designe d to protect a nd to give p riority 5 There are conflicting opinions regarding w hether the rig ht to make improvem ents into the water existed at common law or i f it is solel y a statutor y right. See People s Counsel, 316 Md. at 501 n.5, 560 A.2d at 37 n.5 and cases discussed therein. -9- to riparian owners ). Statutory rights may extend beyond what th e com mon la w allow ed, (People s Counsel, 316 Md. at 503 n.6, 560 A.2d at 38 n.6 (quoting Garitee v. Mayor and City Counsel of Baltimore, 53 Md. 422, 432 (1879))), and b e based on mo re than the mere access to the navigable portions of the water. People s Counsel, 316 Md. at 504, 560 A.2d at 38 (internal citation omitted). The w ild wate rfowl huntin g laws are cod ified at M d. Cod e (1973 , 2000 R epl. Vo l.) § 10-601 et. seq. of the Na tural Resou rces Article. T he statute pro vides in relev ant part: (b) Riparian landowners may license their riparian shoreline: (1) To establish offshore stationary blinds or blind sites for hunting wild waterfowl; and (2) To prevent other persons from licensing the riparian shoreline for the purpose of hunting wild waterfowl offshore. NR § 10-607(b). To m aintain an offshore blind site, the riparian property owner must own at least 250 yards of shoreline, have the permission of a neighboring property owner to tack the neighbor s shoreline on to the license seeker s shoreline to achieve the requisite yardage, or demons trate that no oth er shoreline is licensed within 125 yard s of the proper ty line. NR § 10-607(d ). In Kent an d Quee n Anne s Countie s, as well as th e nontidal waters of the Potomac River and its nontidal tributaries, the right to license the shoreline is an exclusive right of riparian s own ing at lea st 250 yar ds of c ontinu ous sho reline. N R § 10 -608(g ). A riparian license application must be submitted to DNR by June 1 of each year. NR § 10-607(h)(1)(i)(1). Non-ripa rian owners, how ever, may not obtain a license fo r an offshore blind site until the first Tuesday in August of each year. NR § 10 -608 (c)(4 ). Co nseq uently, -10- riparian property owners have the first opportunity to license their property to establish hunting blinds or to prohibit others from ob taining licenses to establish stationary blinds in fron t of th e riparian s property. In the Court of Special Appeals opinion, Judge Deborah S. Eyler reviewed the long history of the wild waterfowl hunting laws. See Cou nty Com missioner s of Kent C ounty, 152 Md. A pp. at 84-87 , 831 A.2d at 85-87. S he noted th at the first legislatio n to regulate duck blinds dates b ack to 1 860. Id. at 85, 831 A.2d at 86. The first legislation to grant riparian property owners a priority in erectin g blind s off o f their p roperty ap peared in 1922 . Id. In the ensuing years, the right has undergone changes in its application and regulation, ho wever, the preference granted to the riparian property owner to license his shoreline for hunting has remained. The first priority in some counties, and the sole right in others, to license riparian shoreline for the purpose of hunting wild waterfowl is a statutory right belonging only to the riparian property owner. The right is similar to the statutory right to build im provem ents into the water in that it is subservient to the land, and [when] used in connection with the land, enhance its value. People s Counsel, 316 Md. at 504, 560 A.2d at 38 (internal citation omitted). We reco gnize that it is not a traditional riparian right as they were defined at common law. We conclude, however, that the preference given to the riparian prop erty owner by NR §§ 10-607 through 10-609 is, nevertheless, a riparian right. The fact that the right is secured by statute does not diminish the authority by which it exists, authority, we -11- note, that has existed for more than eighty years. We turn now to the question of whe ther the local p rogram, as amende d, is valid in light of our holding that the right to license riparian shorelines for the purpose of hunting wild w aterfow l is a ripari an righ t. We agree with petitioners tha t COMAR do es not requ ire the local pro gram to encompass all of the standards set forth in the State p rogram. C OMA R, how ever, is not to be read in isolation. Rather, we must interpret it in light of the enabling legislation, NR § 8704, which specifically states that [a] municipality or other local authority may not establish any regulation of a local nature w hich does not conf orm with the Depa rtment s regula tions. NR § 8-704(d). Read together, the statute and th e regulation authorize lo cal authorities to establish their own rules regarding the implementation of a local program, provided the local program conform s to the State s program . The local p rogram h ere in questio n allows b oats to remain moored within the extended property line of a neighboring riparian property owner for two months of wild waterfowl hunting season. The State program, on the other hand, requires boats to be removed by the beginning of the hun ting season so as to not interfere with neighboring riparian property owner s right to license his or her shoreline for hunting wild waterfowl. Clearly, the two provisions are not in conformity. We hold that KCC Article 68 exceeds the authority delegated to it by NR § 8-704. To the extent that Bill No. 7-2001 permits boats to remain moored within the extended property line of neighboring riparian property ow ners, witho ut their permission, for part of the wild waterfowl season, the -12- amen dmen t is invalid . Furthermore, assuming arguendo that the buoy program enabling legislation did not specifically prohibit loca l regulations th at did not conform to the State program, the amended ordinance would nevertheless be invalid by application of the doctrine of conflict preem ption. Under Maryland law, State law may preempt local law in one of three ways: (1) preemption by conflict, (2) express preemption, or (3) implied preemption. Talbot County v. Skipper, 329 Md. 481 , 487-88, 620 A .2d 880, 883 (199 3).6 Relevant to the facts of this case is the doctrine of conflict preemption because the State Boat Act and the loca l ordinan ce re gula te the same activity. Judge Eldridge, writing for this Court in the case of Coalition for Open Doors v. Annap olis Lodge No. 622, Benevolent and Protective Order of Elks, 333 Md. 359, 635 A.2d 412 (1994) (hereinafter Annapolis Lodge No. 622 ), discussed the doctrine of conflict preemption. He noted that w hen a loca l governm ent ordinan ce conflicts w ith a public general law enacted by the General Assembly, the local ordinance is preemp ted by the State 6 Express preemption occurs when the General Assembly prohibits local legislation in a field by specific language in a statute. Ad + Soil, Inc. v. County Comm rs, 307 Md 307, 324, 513 A .2d 893 (1986 ). A local law is preempted by implication when it deals with an area in which the [State] Legislature has acted with such force that an intent by the State to occupy the entire field must be implied. Id. at 488, 620 A.2d at 883 (quoting C ounty Counc il v. Montgom ery Ass n, 274 M d. 52, 59 , 333 A .2d 596 , 600 (1975)). Although legislative intent to occupy the field may be determined b y several factors, the primary indicia is the co mprehen siveness with which th e Ge nera l Ass emb ly has legislated in the field. Talbot C ounty, 329 Md. at 488 , 620 A.2d at 883 (internal citations omitted). -13- law an d is rend ered inv alid. Id. at 379-380, 635 A.2d at 422. See also, Boulden v. Mayor, 311 Md. 41 1, 415-41 7, 535 A .2d 477, 47 9-480 (19 88); Rockville Grosvenor v. Montgomery County , 289 Md. 74, 96-99, 422 A.2d 353, 365 -367 (198 0); Montgomery County Bd. of Realtors v. Montg omery C ounty, 287 M d. 101, 1 06-11 0, 411 A.2d 97, 10 0-102 (1980); Annap olis v. Annapolis Waterfront Co., 284 Md. 383, 391-393, 396 A.2d 1080, 1085-1086 (1979); County Council v. Investors Funding Corp., 270 Md. 403, 421-424, 312 A.2d 225, 235-237 (1973); City of Baltimore v. Sitnick & Fire, 254 Md. 303, 310-318, 255 A.2d 376, 378-382 (1969). The local ordinance is preempted when it either prohibits an act that under State law is permitted, or it permits an act that under State law is prohibited. Annapolis Lodge No. 622, 333 Md. at 380, 635 A.2d at 422 (quoting Allied Ven ding v. Bo wie, 332 Md. 279, 297 n.12, 631 A.2d 77, 86 n.12 (1993) and Talbot C ounty v. Skipper, 329 Md. 481, 487 n.4, 620 A.2d 880, 882-883 n.4 (1993) ). We have referred to this type of conflict preemption as prohib it-permit con flict. Annapolis Lodge No. 622, 333 Md. at 380 n.39, 635 A .2d at 42 2 n.39. The landmark case in Maryland regarding the issue of preemption is Rossberg v. State, 111 Md. 394, 416-417, 74 A. 581, 584 (1909), in which we enunciated the rule as follows: The true doctrine, in our opinion, is concisely stated in 28 Cyc. 701, as follows: Such ordinances must not directly or indirectly contravene the general law. Hence ordinances which assume directly or indirectly to permit acts or occupations which the State statutes p rohibit, or to prohibit acts p ermitted by statute or constitution, ar e under the familiar rule for validity of ordina nces un iformly d eclared to be nu ll and vo id. -14- Not all conflicts, however, fit square ly within the pro hibit-permit cate gory. Annap olis Lodge No. 622, 333 Md. at 380 n.39, 635 A.2d at 422 n.39. A local law may conflict with a state public general law in other respects and will, therefore, be pree mpted . Id. In Montgomery County Bd. of Realtors v. Montgomery County 287 Md. 101, 411 A.2d 97 (1980), we held that a local tax on the variance between the assessed value of real estate and the actual sale price of the real estate con flicted with th e State scheme for assessment of real property and was invalid. The local statute, entitled Real P roperty T ax Re capture , provided that upon th e sale of rea l property within the Coun ty, a tax would be due on the amount which the value of th e property on th e date of recognition exceeded the assessed valuation of the property. The Court found that the local statute was an attempt by Montgom ery County to reassess and tax real property after the date of finality [and] is in direct conflict with the provisions of [the State scheme for the assessment and levy of taxes] relative to the date o f finality and the process to be followed where an erroneous assessment is made. Id. at 109-110, 411 A.2d at 101-10 2. Althoug h the local statu te did not spe cifically permit or prohibit an act permitted or prohibited by the State, it was neverthele ss invalid because it was in direct conflict with a State s tatute reg ulating t he sam e matte r. See also, Montgomery County v. Board of Elections, 311 Md. 512, 536 A.2d 641 (1988) (holding that two Montgomery County ballot proposals that would have amended the County Charter regarding the powers of the County Executive to appoint members to the Montgomery County Planning Board were invalid because they conflicted with sections of the Maryland -15- Code that provide for the app ointment o f the same offices); East v. Gilchrist, 296 Md. 368, 463 A.2d 285 (1983) (holding that a County Charter amendment that prohibited the expenditure of County money for the operation of a landfill in a residentia l area was in conflict with a State general law that requires counties to raise the necessary fu nds to ope rate a landfill once a site within the locality has been chosen by the State). In Holiday Point Marina Partners v. Anne Arundel County , 349 Md. 190, 707 A.2d 829 (1998), this Court was asked to de termine whether a section of th e Anne Arunde l County Code that required marinas with more than 100 slips to be separated from shellfish beds by 2,640 feet was preempted by State law that prohibited the harvesting of shellfish from beds located within 200 feet of a marina.7 The purpose of the State document was to restrict the taking of shellfish becau se of p ossible p ollution source s from nearby m arinas. Id. at 210-11, 707 A.2 d at 839. In h olding that th ere was n o preemp tion by conflict, w e stated: Assuming arguendo that the document relied on by Holiday Point can properly be viewed as State law for the purpose of the doctrine of preemption by conflict, there is no conflict between Article 28, § 5-108(e), of th e Anne Arunde l County Code and the State document. The local ordinance restricts the location of marina facilities, whereas the State document restricts the harvesting of she llfish . . . . They regulate entirely separate and distinct activities. 7 The document relied upon as State law was a document published by the Maryland Department of the Environment entitled Assessment Guidelines For Determining Shellfish Growing Area Classification In And Around Marinas. Holiday Point, 349 Md. at 210, 707 A.2d at 839. It was neither a statute nor a regulation. Id. -16- Id. at 211, 707 A.2d at 840.8 As previously discussed, the amended ordinance permits an activity that is prohibited by the State program it allows the mooring of boats in waters that for two months of the year infringes upon the rights of neighboring riparian property owners. The right to license riparian shoreline for the purpose of hunting wild waterfowl is a riparian right within the meaning of COMAR . Consequently, that right may not be infringed upon by the placement of buoys pursuant to NR § 8-704. This is a classic example of prohibit-permit type of conflict preem ption. W e hold th at KC C 68-1 0(G), as amended, is void beca use it permits an activity that is expressly prohibited by State law, NR § 8-704. III. The Court of Special Appeals held that the amended local ordinance was preempted by both the State Boat Act and the wild waterfowl hunting laws. In holding that the ordinance was preempted by the wild waterfowl hunting laws, the intermediate appellate court applied the federal doctrine of conflict by frustration of purpose. County Commissioners, 152 Md. App. at 94-95, 831 A.2d at 91. The federal doctrine of preemption is based on the fundamental principle of the 8 Petitioners argue that pursuant to Holiday Point the local ordinance here may not be preempted by conflict with the wild waterfowl laws because they regulate separate and distinct activities. We need not reach this question because we hold that the local ordinance is preempted by the State Boat A ct, a regu lation th at clearly re gulates the sam e activity. W e leave open for another day, however, the question of whether the regulation of two activities, while distinct on the ir face, may be so interrelated in application that the doctrine of conflict pree mption m ight nevertheless app ly. -17- Federal Constitution that Congress has the ability to preem pt state la w. Crosby v. National Foreign Trade C ouncil, 530 U.S. 363, 372 (2000) (see also, U.S. Cons t. Art. V I, cl. 2). State law will be preempted by federal law [w]hen Congress intends federal law to occupy the field . . . [a]nd eve n if Cong ress has no t occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute. Id. Conflict pr eemption exists in two forms: (1) the prohibit-permit type, and (2) what is generally referred to as frustration o f purpose conflict. We will find pre emption w here it is impossible for a priv ate party to comply with both state and federal law, and where under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Id. at 372-373 (internal citations omitted) (alterations in origina l). Our research indicates that no previous re ported M aryland appe llate court opinion has applied the federal doctrine in resolving a conflict between State and local law. In fact, we are unaware of any state that has a pplied the d octrine to resolve conflicts between state and local law. Because the controversy may be resolved without invoking the federal doctrine, we declin e to address its applicability to this m atter or Ma ryland conflict la w in gen eral. To the extent that the opinion of the Court of Special Appeals may be read to endorse the applicability of the federal doctrine of preemption of the frustration of purpose type to conflicts between State and lo cal law, w e disavow th at reasoning at this time. Under Marylan d law th e local o rdinan ce is inv alid irresp ective o f fede ral jurisp rudenc e. -18- For the forgoing reasons, we hold that Article 68 of the Code of Public Local Laws of Kent County, as amended by Bill No. 7-2001, is void to the extent it permits boat moorings to remain in the extended property line of a neighboring riparian property owner for any part of wild waterfowl hunting season without the neighboring riparian property owner s permission. The ordinance, as amende d, is void beca use it excee ds its authority pursuant to the State Boat Act and accompanying regulations, and it is preempted by conflict of the prohibit-permit type. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PET ITIONERS. -19-

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