Lowery v. State, 430 Md. 477

Background

Lowery, a licensed waterman, was cited for using a hydraulic clam dredge in an SAV protection zone at Cook’s Point Cove.
NR § 4-1006.1(e)(3) requires DNR to publish, by public notice, delineations and revisions of SAV zones; the trial court accepted State Exhibit 12 as satisfying this.
State Exhibit 12 contained a generic notice with locations and contact info but did not publish the actual delineations or coordinates of Cook’s Point Cove.
The circuit court found Lowery guilty after a bench trial and relied on the 2003 public notice as compliance with NR § 4-1006.1(e)(3).
On direct review, the Court of Appeals held that the publication requirement was not satisfied by the 2003 notice, and that compliance with NR § 4-1006.1(e)(3) is an element of the State’s case.
As a result, the conviction was reversed and the case remanded for dismissal due to lack of proven publication compliance.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
What does NR § 4-1006.1(e)(3) require of DNR?	Lowery contends it requires publication of actual delineations and revisions in detail.	State argues delineations could be satisfied by notice directing where to obtain details, not necessarily by printing maps.	DNR must publish delineations and revisions; the notice here was inadequate.
Did the State prove DNR published the SAV delineations as required?	Lowery argues the 2003 public notice did not publish delineations.	State contends that publication of notice suffices under the statute.	The State did not prove publication of delineations as required by NR § 4-1006.1(e)(3).
Should compliance with NR § 4-1006.1(e)(3) be an element of the prosecution for a violation of NR § 4-1006.1?	Lowery benefits from lack of proper notice; publication is an essential element.	State argues notice is not an element and a strict liability offense applies.	Publication compliance is an element; lack of proof defeats the prosecution.
Is NR § 4-1006.1 a strict liability offense requiring no mens rea for publication failure?	Lowery argues mens rea is required; publication failure cannot be ignored.	State asserts potential strict liability or public welfare offense status could apply.	The Court rejects strict liability; mens rea or fault remains relevant; but publication failure invalidates the prosecution.
What is the proper effect of DNR's publication failure on Lowery's conviction?	Conviction must be reversed due to failure to prove publication.	State asks for remediation rather than dismissal.	Conviction reversed; case remanded with dismissal.

Key Cases Cited

Hirsch v. Dep’t of Natural Resources, 288 Md. 95 (Md. 1980) (maps or orders must be filed to be effective)
State v. Neger, 427 Md. 582 (Md. 2012) (statutory interpretation standard for bench trials)
Jordan, 405 Md. 420 (Md. 2008) (strict liability and mens rea considerations in criminal statutes)
Outmezguine v. State, 335 Md. 20 (Md. 1994) (mens rea implied in silent statutes)
Garnett v. State, 332 Md. 571 (Md. 1993) (strict liability considerations when legislature shows explicit design)
Chow v. State, 393 Md. 431 (Md. 2006) (statutory text and purpose, interpretation guidance)