757 S.E.2d 1
Va.2014Background
- Chincoteague Inn placed a floating platform (two barges lashed together, later one removed) alongside its restaurant over the Chincoteague Channel; a 54' x 13.6' portion rested above state-owned subaqueous bottomland.
- VMRC staff inspected after a complaint, concluded the platform encroached on state bottomland, issued a Notice to Comply and ordered removal of the offending portion.
- Inn applied for an after-the-fact permit; VMRC pursued enforcement, the full Commission found a violation of Va. Code § 28.2-1203 and ordered removal.
- Inn appealed to Accomack Circuit Court, which found the platform a "vessel" and held VMRC lacked jurisdiction; court dismissed enforcement and awarded fees.
- Court of Appeals reversed in a panel opinion, then granted en banc rehearing; the en banc court affirmed the circuit court, holding VMRC lacked jurisdiction under § 28.2-1203(A).
- Virginia Supreme Court granted review, held § 28.2-1203(A) applies to the Inn’s platform (not protected as a jus publicum navigation right), and ruled VMRC had not preserved its concession that the structure is a "vessel." Case remanded to resolve remaining federal-preemption issues.
Issues
| Issue | Plaintiff's Argument (Chincoteague Inn) | Defendant's Argument (VMRC) | Held |
|---|---|---|---|
| Whether Va. Code § 28.2-1203(A) authorizes VMRC to regulate/remove the floating platform | Platform is a "vessel" engaged in navigation; state law cannot reach vessels or is preempted by federal maritime law | § 28.2-1203(A) prohibits building/encroaching over state subaqueous bottomland; platform encroaches and needs permit | Held: § 28.2-1203(A) applies; VMRC may regulate the platform because its use (restaurant/bar seating) was not a public jus publicum navigation right |
| Whether the platform was exempt as an activity incident to the public right of navigation (jus publicum) | Intermittent movement or vessel status makes the use incident to navigation, thus constitutionally protected | The platform was stationary and used for private restaurant operations, not navigation; jus publicum does not cover that use | Held: Use was private (restaurant); not a jus publicum right, so constitutional protection did not bar § 28.2-1203(A) enforcement |
| Whether VMRC preserved its concession that the structure is a "vessel" under 1 U.S.C. § 3 | (Inn relied on VMRC concession that the structure was a vessel and on federal maritime law implications) | VMRC attempted to withdraw its concession after Lozman; argued Lozman altered "vessel" analysis | Held: VMRC conceded it failed to preserve the vessel issue below; under law-of-the-case the concession stands for this appeal; VMRC cannot withdraw it here |
| Whether federal maritime law preempts state enforcement of § 28.2-1203(A) | Federal maritime law governs vessels and navigation; where it applies it may preempt conflicting state action | VMRC argued federal preemption did not apply to this platform's use over state bottomland | Held: Majority did not decide preemption; remanded to Court of Appeals to address federal preemption as remaining issue |
Key Cases Cited
- Shively v. Bowlby, 152 U.S. 1 (1894) (historical principle that Crown/state held title/dominion over tidal waters and bottoms)
- Martin v. Lessee of Waddell, 41 U.S. (16 Pet.) 367 (1842) (state sovereign title to waters and limits of grants)
- Alden v. Maine, 527 U.S. 706 (1999) (states retain residuary sovereignty under constitutional structure)
- Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997) (state sovereign authority over waterways may extend regardless of tidal influence)
- Commonwealth v. City of Newport News, 158 Va. 521 (1932) (discussion of jus publicum and public rights in waterways under Virginia law)
- Stewart v. Dutra Constr. Co., 543 U.S. 481 (2005) (federal definition of "vessel" requires being "in navigation")
- Lozman v. City of Riviera Beach, 568 U.S. (2013) (Supreme Court refined vessel status analysis under 1 U.S.C. § 3)