E-Alert Case Updates

Virginia Court of Appeals Reverse Circuit Court, Finding that Appellants had no Standing to Contest Distribution of Public Oyster Beds and Reserves

Michael Clair & Douglas Buckley v. Virginia Marine Resources Commission, et al.
Record No. 1006-16-1 (Court of Appeals of Virginia)
by Marie Claire Langlois, Law Clerk
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.courts.state.va.us/opinions/opncavwp/1006161.pdf

On April 23, 2016, the Circuit Court for the County of Accomack upheld a decision by the Virginia Marine Resources Commission (“VMRC”) to grant oyster harvesting ground leases to Donald Porter and Harvey Drewer, II. Appellants, Michael Clair and Douglas Buckley, appealed that decision to the Virginia Court of Appeals, wanting to assert their public use of the oyster beds and reserves.

The Court refused to acknowledge appellants multiple assignments of error because they found that the Circuit Court erred in determining that the appellants even had standing. In order to find that a party has standing to contest the decision of an agency such as the VMRC, that party must be “aggrieved by . . . [the] case decision.” Va. Code § 2.2-4026(A). To be an “aggrieved” party, that party must have been denied “some personal or property right, legal or equitable, or [burdened or obliged in a way that is] different from that suffered by the public generally.” Marine Res. Comm’n v. Clark, 281 Va. 686-87 (2011). Moreover, the Virginia Supreme Court has made clear that for a party to have standing, it must “affirmatively appear that such person has some direct interest in the subject matter of the proceeding [including]… an immediate pecuniary and substantial interest in the litigation, and not a remote or indirect interest.” Id. at 687 (internal citations omitted). It is not enough that the party’s sole interest be to “advance some perceived public right.” Id.

Some Virginia oyster beds and reserves are reserved for public use in perpetuity by the Baylor Survey, a land designation created pursuant to the 1892 Acts of the General Assembly. While it is prohibited for the VMRC to lease out any land that is a part of the Baylor survey, any land that is not covered by the Survey is owned by the Commonwealth and reserved for public use unless the land is leased to a private individual or entity by the VRMC. Unfortunately for appellants, the land directly at issue is not a part of the Survey.

Clair, was a commercial waterman who could make approximately $28,000 per month from oysters harvested from the land granted to Porter and Drewer. For this reason, he claims that he has an “immediate, pecuniary and substantial interest” in the litigation. While Clair may suffer a financial loss due to the leasing of the land, the Court found that his loss was no different than any other commercial waterman, recreational fisher, or potential future harvester of oysters. Therefore, the termination of public access to the land, did not affect Clair in a manner different than the general public. While the Court did not specify Buckley’s particular or financial use of the land, it did not find that his general use of the oyster beds was any different than Clair’s, therefore, finding that neither party had standing as an aggrieved party.