Present: All the Justices 

VIRGINIA MARINE RESOURCES COMMISSION 

 OPINION BY 

v. Record No. 130239 JUSTICE LEROY F. MILLETTE, JR.

 April 17, 2014 

CHINCOTEAGUE INN, ET AL. 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal we consider whether the Court of Appeals 

erred in holding that the Virginia Marine Resources Commission 

lacked authority under Virginia law to regulate the expansion 

of the Chincoteague Inn's restaurant operations onto a floating 

platform secured alongside its building and situated partially 

over state-owned subaqueous bottomland. 

I. Facts and Proceedings 

A. Relevant Facts 

The Chincoteague Inn is a restaurant that sits adjacent to 

the Chincoteague Channel in the town of Chincoteague, Virginia. 

In late April and early May 2010, the Inn lashed together two 

steel barges, held the barges in place, and connected those 

barges to the Inn by way of a gangway to create a floating 

platform. Later, in June 2010, the Inn removed one of those 

barges and the floating platform was resituated alongside the 

Inn. The Inn intended to keep the floating platform positioned 

alongside its building to be used as part of the Inn's 
2

restaurant sitting and dining area for approximately four 

months until September 2010. 

The Inn's plans were interrupted when an unidentified 

competitor complained to the Virginia Marine Resources 

Commission that the Inn had added a "large floating platform" 

alongside the Inn's building structure. On June 11, Commission 

staff member George H. Badger followed up on this tip and 

conducted an onsite inspection. Mr. Badger ascertained that, 

while a portion of the floating platform was situated above a 

man-made boat basin, a 54-foot long by 13.6-foot wide portion 

of the floating platform was situated above state-owned 

subaqueous bottomland. 

Based on Mr. Badger's determination that a portion of the 

floating platform was situated over state-owned subaqueous 

bottomland, the Commission concluded that it had jurisdiction 

over that portion of the platform. Further, the Commission 

categorized this 54-foot by 13.6-foot portion of the floating 

platform as unauthorized and requiring removal. The Commission 

notified the Inn of this determination by a written Notice to 

Comply and demanded immediate removal of the unauthorized 

portion within 10 days. The Notice further warned the Inn that 

failure to comply would result in the matter being placed 

before the full Commission for an enforcement action, and that 

monetary penalties may be imposed. 
3

The Inn, through its manager Raymond Britton, responded to 

the Commission's letter by submitting a joint permit 

application that requested an after-the-fact permit for the 

entire floating platform. The Commission, believing it 

inappropriate to act upon this application while a violation 

was ongoing, sent a letter to the Inn that again demanded 

removal of the unauthorized portion of the platform. On June 

28, the Commission undertook another site inspection and found 

that the 54-foot by 13.6-foot portion of the floating platform 

had not been removed. 

B. Relevant Proceedings 

The full Commission heard the enforcement action against 

the Inn, voted in favor of the enforcement request, and found 

that the 54-foot by 13.6-foot portion of the floating structure 

constituted an unlawful use of state-owned submerged lands 

pursuant to Code § 28.2-1203. The Commission directed removal 

of that portion of the floating platform within 10 days. 

The Inn timely appealed the Commission's decision to the 

Circuit Court of Accomack County pursuant to Code § 2.2-4026, 

Rule 2A:2, and Rule 2A:4. The Inn challenged the Commission's 

decision on three points: (1) that the Commission failed to 

make express findings of fact required to allow a court to 

review an agency's actions, (2) that the Commission failed to 

make findings of fact based on the required substantiality of 
4

the evidence, and (3) that the Commission lacked jurisdiction 

over the floating platform under Virginia state law, and that 

federal maritime law governed the floating platform. 

The circuit court focused on this third argument to 

dispose of the case. In a final decree, the circuit court 

found that the floating platform was a "vessel" and that the 

Commission lacked jurisdiction to require removal of the 

floating platform. The final decree was unclear about whether 

this decision rested upon a determination that Virginia state 

law does not authorize the Commission to exercise jurisdiction 

over the floating platform, or upon a determination that 

federal maritime law preempts any such Virginia state law. The 

circuit court then set aside the Commission's decision, 

dismissed with prejudice the Commission's enforcement action, 

and awarded approximately $14,000 in fees and costs to the Inn. 

The Commission timely appealed to the Court of Appeals. A 

three judge panel concluded that the Commission admitted that 

it failed to preserve the issue about whether the floating 

platform was a "vessel," and noted that the Commission had 

conceded that the structure was indeed a "vessel." Virginia 

Marine Res. Comm'n v. Chincoteague Inn, 60 Va. App. 585, 590, 

731 S.E.2d 6, 8 (2012). The panel, however, also held that 

under the facts of this case federal maritime law did not 

preempt the Commission's authority to order the removal of the 
5

floating platform over state-owned submerged lands. Id. at 

599, 731 S.E.2d at 12. The panel therefore reversed the 

circuit court, vacated the award of fees and costs because the 

parties agreed that the court's award of fees and costs to the 

Inn "rises or falls" with the resolution of the other issues on 

appeal, and remanded the case back to the circuit court to 

determine whether Virginia state law authorized the Commission 

to issue its enforcement decision. Id. at 591 n.2, 599, 731 

S.E.2d at 8 n.2, 12-13. 

The Court of Appeals granted the Inn's petition for a 

rehearing en banc and stayed the panel decision's mandate. 

Virginia Marine Res. Comm'n v. Chincoteague Inn, 60 Va. App. 

719, 720, 732 S.E.2d 45, 46 (2012) (en banc). In its en banc 

opinion, the Court of Appeals observed that the Commission 

conceded the issue that the floating platform was a "vessel." 

Virginia Marine Res. Comm'n v. Chincoteague Inn, 61 Va. App. 

371, 375 n.1, 735 S.E.2d 702, 704 n.1 (2013) (en banc). Thus, 

the Court of Appeals first addressed the preliminary issue of 

whether Virginia state law authorized the Commission to 

exercise jurisdiction over the floating platform before 

reaching the subsequent issue of federal preemption, and held 

that the Commission could not exercise jurisdiction over the 

Inn's floating platform pursuant to Code § 28.2-1203. Id. at 

380-81, 385-87, 735 S.E.2d at 707, 709-10. The en banc 
6

decision by the Court of Appeals affirmed the circuit court's 

determination that the Commission lacked jurisdiction and 

accordingly affirmed the circuit court's award of fees and 

costs to the Inn. Id. at 387, 735 S.E.2d at 710. 

The Commission timely filed a petition for appeal with 

this Court. 

C. Assignments of Error 

Upon appeal, our review considers three logically distinct 

legal issues. First, whether Code § 28.2-1203(A) permits the 

Commission to regulate the floating platform. Second, whether 

federal maritime law applies to the floating platform because 

it is a "vessel" under 1 U.S.C. § 3. Third, whether, if both 

Code § 28.2-1203(A) and federal maritime law apply to the 

floating platform, state and federal law may simultaneously 

govern that floating platform or if federal maritime law 

preempts Code § 28.2-1203(A). The Court of Appeals in its en 

banc decision addressed the first two of these issues. It did 

not reach the third issue of federal preemption. Virginia 

Marine, 61 Va. App. at 387, 735 S.E.2d at 710. 

In this appeal we address the assignments of error and the 

arguments of the parties to the extent they direct us to 

evaluate the following: 

1. Whether the Court of Appeals erred in determining 

that the Commission lacked jurisdiction to regulate 

the floating platform under Code § 28.2-1203(A). 
7

2. Whether the Commission can withdraw its concession 

that the floating platform is a "vessel" as defined 

under 1 U.S.C. § 3. 

II. Discussion 

A. Standard of Review 

This appeal requires us to resolve issues of 

constitutional interpretation and statutory construction. We 

resolve these purely legal issues de novo. L.F. v. Breit, 285 

Va. 163, 176, 736 S.E.2d 711, 718 (2013). 

This appeal involves an administrative agency. Typically, 

we give deference to the decisions of administrative agencies 

when those decisions "fall within an area of the agency's 

specialized competence." Virginia Dep't of Health v. NRV Real 

Estate, LLC, 278 Va. 181, 185, 677 S.E.2d 276, 278 (2009). 

"However, when an issue involves a pure question of statutory 

interpretation, that issue does not invoke the agency's 

specialized competence but is a question of law to be decided 

by the courts." Alliance to Save the Mattaponi v. Commonwealth 

Dep't of Envtl. Quality, 270 Va. 423, 442, 621 S.E.2d 78, 88 

(2005). For those same reasons, we hold that no agency has 

specialized competence in the purely legal issue of 

interpreting the Constitution of Virginia. See Browning-Ferris 

Indus. v. Residents Involved in Saving the Env't, 254 Va. 278, 

284 492 S.E.2d 431, 434 (1997); Sims Wholesale Co. v. BrownForman Corp., 251 Va. 398, 404, 468 S.E.2d 905, 908 (1996). We 
8

therefore afford the Commission's determination no deference 

when resolving the issues in this appeal. 

B. The Commonwealth's Sovereign Authority Over State-Owned 

Subaqueous Bottomland 

The focus of this appeal is the operation of Code § 28.2-

1203(A). It is our "duty" to "constru[e] a statute to avoid 

any conflict with the Constitution" of Virginia and the United 

States Constitution. Commonwealth v. Doe, 278 Va. 223, 229, 

682 S.E.2d 906, 908 (2009); Jeffress v. Stith, 241 Va. 313, 

317, 402 S.E.2d 14, 16 (1991); see also Town of Victoria v. 

Victoria Ice Light & Power Co., 134 Va. 134, 139, 114 S.E. 92, 

93 (1922) ("Of course [a] statute must be construed as 

subordinate to . . . pertinent sections of the Constitution 

[that are] inconsistent therewith."). This is true even when 

the statute's plain language is unambiguous and not absurd. 

See, e.g., Elizabeth River Crossings OpCo, LLC v. Meeks, 286 

Va. 286, 319-20 & n.7, 749 S.E.2d 176, 193 & n.7 (2013). It is 

therefore pertinent to review the constitutional context in 

which Code § 28.2-1203(A) arises before addressing the plain 

language of that statute. 

1. The Basis for the Commonwealth's Sovereign Authority Over 

State-Owned Subaqueous Bottomland 

Under the common law of England, the sovereign Crown held 

title to and exercised dominion over all tidal waters and tidal 

bottomland below the high water line located within England's 
9

geographic jurisdiction. Shively v. Bowlby, 152 U.S. 1, 11-14 

(1894). The geographic scope of this authority expanded as 

English colonists began to claim land on the North American 

continent, so that the Crown's title and dominion extended to 

the tidal waters and tidal bottomland in America. Id. at 14. 

After the American Revolution, this title and dominion 

formerly belonging to the English sovereign was claimed by the 

individual Thirteen Colonies who had, through the 

Constitutional Convention, become sovereign states. See id. at 

14-16; see also Alden v. Maine, 527 U.S. 706, 714-15 (1999) 

(discussing the "residuary and inviolable sovereignty" retained 

by the states pursuant to this Nation's constitutional design). 

However, in light of this Nation's unique system of dual 

sovereignty, the scope of the Commonwealth's sovereign 

authority over subaqueous bottomland is no longer governed, or 

necessarily informed, by the common law of England. See Martin 

v. Lessee of Waddell, 41 U.S. (16 Pet.) 367, 410-11 (1842) ("A 

grant [of subaqueous bottomland to a private entity] made by [a 

state sovereign] must therefore manifestly be tried and 

determined by different principles from those which apply to 

grants of the British [C]rown, when the title is held by a 

single individual in trust for the whole nation."); see, e.g., 

Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 285-86 (1997) 

(distinguishing English common law and recognizing that state 
10

sovereign authority extends to waterways and subaqueous 

bottomland regardless of whether those environs are affected by 

the tide). 

As a state sovereign, the Commonwealth retains an 

"absolute right to all [its] waters, and the soils under them, 

for [its] own common use." Martin, 41 U.S. (16 Pet.) at 410. 

Indeed, the title to and dominion over subaqueous bottomland is 

"an essential attribute" of the Commonwealth's state 

sovereignty. Idaho, 521 U.S. at 283; see also 43 U.S.C. § 1311 

(confirming that state sovereigns retain title to and dominion 

over "the lands beneath navigable waters within the boundaries 

of the respective States, and the natural resources within such 

lands and waters"). This sovereign power is limited only by 

that authority surrendered to the federal sovereign in the 

United States Constitution. Martin, 41 U.S. (16 Pet.) at 410. 

2. The Scope of the Commonwealth's Sovereign Authority Over 

State-Owned Subaqueous Bottomland 

The Constitution of Virginia directs the General Assembly 

to "undertake the conservation, development, or utilization of 

lands or natural resources of the Commonwealth, . . . and the 

protection of its atmosphere, lands, and waters from pollution, 

impairment, or destruction." Va. Const. art. XI, § 2. The 

General Assembly has affirmed the continued existence of the 

Commonwealth's sovereign authority over state-owned subaqueous 
11

bottomland, as that authority derives from the English common 

law. See Code § 1-200. Moreover, the General Assembly has 

defined the scope of that sovereign authority so that it 

extends to "[a]ll the beds of the bays, rivers, creeks[,] and 

the shores of the sea within the jurisdiction of the 

Commonwealth" unless such subaqueous bottomland has been 

"conveyed by special grant or compact according to law." Code 

§ 28.2-1200.1 As we previously explained, the Commonwealth's 

sovereign authority over public environments, including 

subaqueous bottomland, has two facets. 

First, the Commonwealth retains the right of jus publicum, 

"the right of jurisdiction and dominion for governmental 

purposes." Commonwealth v. City of Newport News, 158 Va. 521, 

546, 164 S.E. 689, 696 (1932). This is the Commonwealth's 

sovereign authority to hold the public domain "for the interest 

or benefit . . . of the public."2

 G. L. Webster Co. v. 

 1

 The Commonwealth has ceded its sovereign authority to the 

owners of subaqueous bottomland that rests above the mean lowwater mark, and to the owners of subaqueous bottomland beneath 

creeks and rivers comprised within the limits of a lawful 

survey. Code § 28.2-1202. Also, we have previously observed 

that the General Assembly "chose not to include 'lakes' in its 

designation of bodies of water whose beds remain the property 

of the Commonwealth in the absence of a special grant or 

compact." Smith Mountain Lake Yacht Club, Inc. v. Ramaker, 261 

Va. 240, 246, 542 S.E.2d 392, 395 (2001). 

2

 The right of jus publicum has sometimes been termed the 

"trust" or "public trust" theory by other courts and 

commentators. Although we have sometimes used that 
12

Steelman, 172 Va. 342, 357, 1 S.E.2d 305, 311 (1939). The jus 

publicum contains within it, as "inherent" and "inseparable 

incidents thereof," certain "rights of the people." Newport 

News, 158 Va. at 546, 164 S.E. at 696-97. 

Second, the Commonwealth retains the right of jus 

privatum, "the right of private property" retained by the 

Commonwealth because it is "proprietor" of the public domain 

that has not been lawfully conveyed. Id. at 546, 164 S.E. at 

696. This is the Commonwealth's authority to act "in a 

proprietary capacity" because it also has "the right and title 

of a private owner." G. L. Webster Co., 172 Va. at 357, 1 

S.E.2d at 311. 

The Commonwealth retains "a most solemn duty to [both] 

administer the jus privatum of the [Commonwealth] and to 

exercise its jus publicum for the benefit of the people." City 

of Newport News, 158 Va. at 549, 164 S.E. at 697. In the 

exercise of its right of jus privatum, it is a constitutional 

imperative that the Commonwealth cannot "relinquish, surrender, 

alienate, destroy, or substantially impair" the right of jus 

publicum, or the rights of the people inherent to the jus 

 

terminology, using it in today's opinion would not clarify the 

analysis. City of Newport News, 158 Va. at 539-40, 164 S.E. at 

695 ("It is questionable whether the interposition of the 

conception of a trust in these cases serves any useful purpose 

or tends to clarity of thinking or correctness of decision."). 
13

publicum, except as authorized by the Constitution of Virginia. 

Id. at 546-49, 164 S.E. at 696-97.3

However, whether an activity is a right of the people 

inherent to the jus publicum is a matter of Virginia common law 

subject to the Constitution of Virginia and the General 

Assembly's modification by statute. See, e.g., id. at 549-52, 

164 S.E. at 698-99 (ascertaining whether fishery is a public 

right inherent to the jus publicum under Virginia common law); 

Stokes & Smith v. Upper Appomatox Co., 30 Va. (3 Leigh) 318, 

337 (1831) (Brooke, J.) (observing that a particular activity 

was a public right inherent to the jus publicum because it was 

"expressly granted" by legislative acts of the General 

Assembly); see also Kraft v. Burr, 252 Va. 273, 276-77, 476 

S.E.2d 715, 716-17 (1996) (state law determines to what degree 

the jus publicum restricts a sovereign's right to convey 

subaqueous bottomland to a private party). 

It is within this constitutional context that we construe 

the plain language of Code § 28.2-1203(A). 

 3

 This imperative arose by implication from the 1902 

Constitution of Virginia. City of Newport News, 158 Va. at 

546-47, 164 S.E. at 696-97. Nothing suggests that the 1971 

Constitution of Virginia disposed of that constitutional 

implication, and it survives today. 
14

C. Whether Code § 28.2-1203(A) Allowed the Commission to 

Regulate the Floating Platform 

1. Construing Code § 28.2-1203(A) 

The Commission's geographic jurisdiction includes "the 

Commonwealth's territorial sea and extend[s] to the fall line 

of all tidal rivers and streams except in the case of stateowned bottomlands where jurisdiction extends throughout the 

Commonwealth." Code § 28.2-101. The Commission's jurisdiction 

therefore extends to the state-owned subaqueous bottomland over 

which the Inn's floating platform was situated. The question 

before us is whether the General Assembly empowered the 

Commission to regulate the Inn's floating platform because that 

platform was engaging in either a "trespass" or 

"encroach[ment]" under Code § 28.2-1203(A). 

The General Assembly has made it "unlawful for any person 

to build, dump, trespass[,] or encroach upon or over 

[subaqueous bottomland that is] the beds of the bays, ocean, 

rivers, streams, or creeks which are the property of the 

Commonwealth, unless such act is performed pursuant to a permit 

issued by the Commission or is necessary for" various 

enumerated exceptions. Code § 28.2-1203(A).4

 Engaging in such 

 4

 Code § 12.2-1203(A) is a valid exercise of the right of 

jus privatum as falling within the Commonwealth's proprietary 

capacity as the entity retaining the right and title to the 

subaqueous bottomland. See Montgomery v. Commonwealth, 99 Va. 

833, 835, 37 S.E. 841, 842 (1901) (owner of private property 
15

an unlawful act is a Class 1 misdemeanor. Code § 28.2-1203(B). 

The Commission has authority to undertake inspections, issue 

orders, and apply for injunctions to ensure compliance with 

this statutory prohibition of unlawful building, dumping, 

trespassing, or encroaching upon or over the Commonwealth's 

subaqueous bottomland. Code §§ 28.2-1211; 28.2-1212. 

Code § 28.2-1203(A) is not ambiguous. See Brown v. 

Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985) (listing 

factors indicating that statutory language is ambiguous). 

Accordingly, we apply the plain language of the statute. 

Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925-26 

(2006). Additionally, because the statute's terms are 

undefined, those words are given their "ordinary meaning," in 

light of "the context in which [they are] used." Lawlor v. 

Commonwealth, 285 Va. 187, 237, 738 S.E.2d 847, 875 (2013). 

"Encroach" means "[t]o enter by gradual steps or stealth 

into the possessions or rights of another; to trespass or 

intrude," and "[t]o gain or intrude unlawfully upon another's 

lands, property, or authority." Black's Law Dictionary 607 

(9th ed. 2009). "Trespass" means "[a]n unlawful act committed 

against the person or property of another[, especially] 

wrongful entry on another's real property." Id. at 1642. We 

 

has the legal right to order others off of that property, and, 

upon refusal, the legal right to use proper force to expel such 

others). 
16

recognize an overlap between these terms, and therefore 

construe them so that neither is surplusage. Travelers Prop. 

Cas. Co. of Am. v. Ely, 276 Va. 339, 345, 666 S.E.2d 523, 527 

(2008). A Code § 28.2-1203(A) "trespass" occurs when a person 

occupies the space "upon or over" state-owned subaqueous 

bottomland while simultaneously violating other law. A Code 

§ 28.2-1203(A) "encroach[ment]" would be found when a person 

occupies the space "upon or over" state-owned subaqueous 

bottomland without violating any other law. These ordinary 

meanings of the plain language make sense in the context of 

Code § 28.2-1203(A). 

However, we must construe these terms so that they do not 

contravene the Constitution of Virginia. Doe, 278 Va. at 229, 

682 S.E.2d at 908; Town of Victoria, 134 Va. at 139, 114 S.E. 

at 93. The only applicable constitutional limitation is the 

right of jus publicum. Specifically, we must decide whether 

the Inn, in using the floating platform above state-owned 

subaqueous bottomland, was engaging in an activity that is a 

public right inherent to the jus publicum. If so, the 

Constitution of Virginia prohibits construing "trespass" or 

"encroach[ment]" as applying to the floating platform because 

enforcing Code § 28.2-1203(A) would "relinquish, surrender, 

alienate, destroy, or substantially impair" a constitutionally 
17

protected "right[] of the people." City of Newport News, 158 

Va. at 546-47, 164 S.E. at 697.5

2. Code § 28.2-1203(A) and the Constitution of Virginia 

The interplay between Code § 28.2-1203(A) and the 

constitutional protection of the public rights inherent to the 

jus publicum manifests in the following three-step analysis. 

a. Did the Plain Language of Code § 28.2-1203(A) Apply 

to the Floating Platform? 

First, the analysis questions whether the floating 

platform was subject to Code § 28.2-1203(A) because it was 

committing a "trespass" or "encroach[ment] upon or over" stateowned subaqueous bottomland. The clear answer is yes. 

It is evident from the record that a 54-foot by 13.6-foot 

portion of the floating platform occupied the physical space 

over the Commonwealth's subaqueous bottomland. The Inn was not 

violating any other law when it had the floating platform 

occupy the space above the Commonwealth's subaqueous 

bottomland. Thus, the floating platform was an "encroach[ment] 

upon or over" the Commonwealth's subaqueous bottomland. On the 

 5

 On this point the Court of Appeals erred by inverting the 

jus publicum. The jus publicum is a constitutional doctrine 

that simultaneously empowers and limits the actions of the 

Commonwealth, not private individuals. See City of Newport 

News, 158 Va. at 546-49, 164 S.E. at 696-97. Consequently, 

because a private individual cannot violate the jus publicum, 

the Court of Appeals erred in construing the terms appearing in 

Code § 28.2-1203(A) as being defined by a private individual's 

violation of the jus publicum. Virginia Marine, 61 Va. App. at 

385-86, 735 S.E.2d at 709. 
18

face of the statute, Code § 28.2-1203(A) applied to the 

floating platform. 

b. Was the Inn's Activity Issued a Permit by the Commission or 

Exempted by a Statutory Exception? 

Second, the analysis questions whether (1) the Commission 

issued a permit for the floating platform, or (2) the Inn's 

floating platform was exempted from Code § 28.2-1203(A) by 

satisfying a statutory exception. The clear answer to both 

questions is no. 

It is evident from the record that the floating platform's 

encroachment was neither authorized by permit nor exempted from 

Code § 12.2-1203(A) by a statutory exception. The floating 

platform's encroachment therefore violated Code § 28.2-1203(A). 

c. Was the Inn's Activity a Public Right Inherent 

to the Jus Publicum? 

Third, the analysis questions whether the Inn, in using 

the floating platform above state-owned subaqueous bottomland, 

was engaging in an activity that is a public right inherent to 

the jus publicum. The clear answer is no. 

The General Assembly has modified the jus publicum to 

include the public's right to use the Commonwealth's subaqueous 

bottomland to "fish[], fowl[], hunt[], and tak[e] and catch[] 

oysters and other shellfish." Code § 28.2-1200; see also

Bradford v. Nature Conservancy, 224 Va. 181, 194-97, 294 S.E.2d 
19

866, 872-74 (1982). The record reflects that the Inn was not 

engaged in any of these activities. 

We have acknowledged that the jus publicum includes the 

public right to navigate the Commonwealth's waters. James 

River & Kanawha Power Co. v. Old Dominion Iron & Steel Corp., 

138 Va. 461, 470, 122 S.E. 344, 347 (1924). The right of 

navigation, for purposes of the public right inherent to the 

jus publicum, is "the right to move and transport goods from 

place to place over the great natural highways provided by the 

navigable waters of the State without let or hindrance from or 

charge by any private person or corporation." City of Newport 

News, 158 Va. at 550, 164 S.E. at 698 (emphasis added). 

Although this right undoubtedly includes some cessation of 

movement upon the water, as incident to the right of 

navigation, it does not include all cessations of movement. 

This necessarily follows from the fact that determining 

what activity the Inn was engaged in requires evaluating the 

totality of the circumstances. See id. at 550-51, 164 S.E. at 

698 (distinguishing between engaging in navigation, which 

includes "mov[ing] from place to place," and the right of 

fishery, which as a matter of practicality may require some 

degree of movement across water). Regardless of the length of 

time a structure has stopped moving, we must evaluate the 
20

circumstances surrounding that cessation of movement to 

determine just what activity is being undertaken. 

The record reveals that the Inn's floating platform 

occupied the space over the Commonwealth's subaqueous 

bottomland for approximately two months before the Commission 

conducted its site inspection in June 2010. The Inn intended 

for the floating platform to occupy that space for a total time 

period of approximately four months. Although the Inn 

interrupted the floating platform's fixed nature for a 32-

minute trip down the Chincoteague Channel in July 2010, this 

momentary engagement in the right of navigation does not 

obviate the facts showing that the floating platform was 

otherwise stationary for at least two months. 

Moreover, those months of being stationary were not 

incident to the right of navigation. When the floating 

platform was supported by two barges, the Inn placed a bar and 

tables on the floating platform for its restaurant patrons. 

When one of those barges was taken away, the Inn refitted the 

floating platform with a new deck and handrails, and two 

gangways led from the Inn to the barge so that restaurant 

patrons could use the bar area and have outdoor seating on the 

water. The Health Department permitted the Inn to conduct this 

additional restaurant activity on the barge. Underscoring the 

point, the Inn admitted to the full Commission during the 
21

enforcement proceeding that the barge was being used as a 

restaurant. 

Restaurant operations are not incident to the right of 

navigation. Indeed, using the floating platform for restaurant 

operations "convert[ed] the public property," that is, the 

waters above the Commonwealth's subaqueous bottomland, "pro 

tanto to a use which is essentially private, whether it [was] 

exercised for pleasure or profit." City of Newport News, 158 

Va. at 551, 164 S.E. at 698-99. Much like the use of the 

Commonwealth's water and subaqueous bottomland for "pleasure 

purposes" and fisheries, see id. at 531, 551-52, 164 S.E. at 

691, 698-99, the Inn's placement of the floating platform 

alongside its restaurant was not a right of the public inherent 

to the jus publicum. 

Thus, the Constitution of Virginia does not restrict the 

plain language of Code § 28.2-1203(A) from applying to the 

Inn's floating platform, and therefore the Commission may 

regulate that floating platform as an "encroach[ment] upon or 

over" state-owned subaqueous bottomland.6

 6

 It is important to recognize what this appeal does not 

address. It does not address facts where an individual docks 

his boat, as necessary to disembark after traveling across the 

water, at a pier situated above state-owned subaqueous 

bottomland. It does not address facts where an individual 

lives in a floating structure situated above state-owned 

subaqueous bottomland. Determining whether those factual 

situations involve activities incident to the right of 
22

D. Whether the Commission Can Withdraw Its Concession That 

the Floating Platform Is a "Vessel" Under 1 U.S.C. § 3 

The Commission asks to withdraw its concession that the 

floating platform is a "vessel" as defined under 1 U.S.C. § 3. 

The Commission relies upon the fact that the United States 

Supreme Court published its opinion in Lozman v. City of 

Riviera Beach, 568 U.S. ___, 133 S. Ct. 735 (2013), shortly 

after the Court of Appeals issued its en banc decision in this 

case. The Commission contends that because Lozman modified the 

definition of "vessel" for purposes of applying 1 U.S.C. § 3, 

the Commission should not be bound by its earlier concession 

that the floating platform is a "vessel." 

Had the Commission conceded only the legal issue, we would 

not be bound by that concession of law. This is because an 

"issue [which] is a question of law . . . is not subject to a 

concession binding on this Court." Wright v. Commonwealth, 278 

Va. 754, 760 n.3, 685 S.E.2d 655, 658 n.3 (2009); see also

Cofield v. Nuckles, 239 Va. 186, 194, 387 S.E.2d 493, 498 

(1990) ("A party can concede the facts but cannot concede the 

law."). 

But the Commission did more than concede a legal issue. 

The Commission also conceded that it did not preserve the issue 

of whether the floating platform was a "vessel." Such a 

 

navigation, or are themselves a public right inherent to the 

jus publicum, is beyond the scope of today's appeal. 
23

concession was appropriate because the Commission did, in fact, 

fail to preserve the issue by failing to assign error to the 

circuit court's determination that the floating platform was a 

"vessel." Thus, under the law of the case doctrine, the 

floating platform is a "vessel" as defined under 1 U.S.C. § 3 

for purposes of this appeal. See Miller-Jenkins v. MillerJenkins, 276 Va. 19, 26-27, 661 S.E.2d 822, 826 (2008). 

It is important to note, however, that whether the 

floating platform was engaged in the public right of navigation 

inherent to the jus publicum, and whether the floating platform 

is a "vessel" under 1 U.S.C. § 3, are separate inquiries. The 

definition of "vessel" under 1 U.S.C. § 3 does require that a 

structure be "in navigation." Stewart v. Dutra Constr. Co., 

543 U.S. 481, 496 (2005). But the "in navigation" requirement 

prescribed by a definition within a federal statute is not 

synonymous with the "right of navigation" protected by the 

Constitution of Virginia. 

Our definition of the "right of navigation" inherent to 

the jus publicum focuses on the active and immediate moving 

across the navigable waters. See City of Newport News, 158 Va. 

at 550, 164 S.E. at 698. In contrast, the "in navigation" 

requirement in 1 U.S.C. § 3 allows for the mere "possibility" 

that a structure could engage in movement across the navigable 

waters. Stewart, 543 U.S. at 496. And as the United States 
24

Supreme Court made clear, a "vessel" as defined in 1 U.S.C. § 3 

need not be actively "carrying people or things over water." 

Lozman, 568 U.S. at ___, 133 S. Ct. at 740-41. Additionally, 

in light of the longstanding authority discussed in Part II.B., 

a federal statute cannot dictate how we understand the right of 

jus publicum under the Constitution of Virginia. See Michigan 

v. Long, 463 U.S. 1032, 1040-41 (1983). 

For these reasons, although the Commission failed to 

preserve the issue of whether the floating platform is a 

"vessel" under 1 U.S.C. § 3, that legal definition does not 

dictate our analysis of whether the floating platform was 

engaged in the public's "right of navigation" inherent to the 

jus publicum. 

III. Conclusion 

This appeal involves a restaurant placing a floating 

platform over the Commonwealth's subaqueous bottomland without 

a permit or statutory exception in violation of Code § 28.2-

1203(A). Moreover, the floating platform was used to undertake 

restaurant operations, and therefore was not protected by the 

Constitution of Virginia as a public right inherent to the jus 

publicum. For these reasons, we hold that the Court of Appeals 

erred in interpreting the scope of the Commission's authority 

under Code § 28.2-1203(A). Further, we hold that the 
25

Commission failed to preserve the issue of whether the floating 

platform is a "vessel" under 1 U.S.C. § 3. 

For the aforementioned reasons, we reverse the Court of 

Appeals' en banc decision. Although the Court of Appeals' 

panel opinion addressed the issue of federal preemption, the 

Court of Appeals vacated that panel opinion upon granting en 

banc review. See Moore v. Commonwealth, 276 Va. 747, 755, 668 

S.E.2d 150, 155 (2008) (recognizing that the Court of Appeals 

considers panel decisions to be vacated in toto upon grant of 

en banc review). Because the Court of Appeals' en banc opinion 

did not address the issue of federal preemption, that issue 

remains outstanding. We therefore remand the case to the Court 

of Appeals to resolve all remaining issues, including whether 

application of Code § 28.2-1203(A) to the floating platform is 

preempted by federal maritime law. 

Reversed and remanded. 

JUSTICE POWELL, with whom JUSTICE McCLANAHAN joins, dissenting. 

 I agree with the majority that the dispositive question in 

this case is whether the Inn, in using the barge1

 above state-

 1

 Unlike the majority, I believe that the term “floating 

platform” is a misnomer. In reality, the “floating platform” 

was simply one or two work barges with new decking installed. 

The majority, however, implies otherwise, as demonstrated by 

the majority’s subsequent description that “the floating 

platform was supported by two barges.” (Emphasis added.) 
26

owned subaqueous bottomlands, was engaging in an activity that 

is a public right inherent in the jus publicum. However, I 

disagree with the majority’s decision to disregard the 

importance of the barge’s designation as a vessel. It is 

readily apparent to me that a vessel “in navigation” is 

necessarily engaging in the “right of navigation.” As a result 

of the majority’s failure to give the barge’s status as a 

vessel the proper consideration, the application of the Code 

§ 28.2-1203(A) yields an absurd result. Accordingly, I must 

respectfully dissent. 

 In my opinion, the VMRC’s concession that the barge is a 

vessel is dispositive in this case. The majority, however, 

disregards the importance of this designation, holding that 

“the ‘in navigation’ requirement prescribed by a definition 

within a federal statute is not synonymous with the ‘right of 

navigation’ protected by the Constitution of Virginia.” The 

majority’s holding is rendered erroneous by the fact that the 

law has changed significantly since 1932 when this Court 

decided Commonwealth v. City of Newport News, 158 Va. 521, 550, 

164 S.E. 689, 698 (1932), the case upon which the majority 

relies to establish its definition for the right of navigation 

 

The use of the term “floating platform” is, in my opinion, an 

unsuccessful attempt by the majority to downplay the ultimate 

effect this opinion will have on all watercraft. 
27

inherent to the jus publicum.2 Notably, it has since been wellestablished that Congress is the ultimate arbiter of what 

activities are encompassed by the right of navigation, not the 

Constitution of Virginia. 

 As an initial matter, it is important to note that 

navigation is a subset of commerce. See Gilman v. 

Philadelphia, 70 U.S. 713, 724 (1866) (“Commerce includes 

navigation.”). Accordingly, 

The Commerce Clause confers a unique position upon 

the Government in connection with navigable waters. 

“The power to regulate commerce comprehends the 

control for that purpose, and to the extent 

necessary, of all the navigable waters of the United 

States . . . . For this purpose they are the public 

property of the nation, and subject to all the 

requisite legislation by Congress.” Gilman, [70 

U.S.] 713, 724-25. This power to regulate navigation 

confers upon the United States a “dominant 

servitude,” FPC v. Niagara Mohawk Power Corp., 347 

U.S. 239, 249 (1954), which extends to the entire 

stream and the stream bed below ordinary high-water 

mark. 

United States v. Rands, 389 U.S. 121, 122-23 (1967). 

 Indeed, this Court acknowledged Congress’s power over 

navigation in City of Newport News, stating: 

By the adoption of the Constitution of the United 

States the State of Virginia to a limited extent, 

defined by the Constitution itself, relinquished a 

portion of its sovereignty to the United States. In 

 2

 Additionally, the majority fails to address the fact that 

this definition was dicta. In City of Newport News, the issue 

before the Court was whether the Constitution of Virginia 

includes the public right of fishery, not the definition of the 

right of navigation. 158 Va. at 533-34, 164 S.E. at 692. 
28

so doing it imposed upon itself the limitation that 

it may not so dispose of or appropriate to uses its 

tidal waters and their bottoms as to interfere with 

the power and right granted to the United States to 

regulate and control the navigation thereof, so far 

as may be necessary for the regulation of commerce 

with foreign nations and among the States. 

Id. at 543-44, 164 S.E. at 695-96 (emphasis added). 

 In 1932, when City of Newport News was decided, however, 

it was believed that Congress’ power over navigation was 

strictly limited to those navigable streams involved in 

interstate and international commerce. See id. Implicitly, 

this meant that power over intrastate commerce fell to the 

individual states. Thus, at that time, the Constitution of 

Virginia was the starting point for determining the activities 

encompassed by the right of navigation. 

 However, in 1942, the United States Supreme Court 

effectively eliminated the distinction between intrastate and 

interstate commerce with regard to Congress’ power under the 

Commerce Clause. 

The commerce power is not confined in its exercise to 

the regulation of commerce among the states. It 

extends to those activities intrastate which so 

affect interstate commerce, or the exertion of the 

power of Congress over it, as to make regulation of 

them [the] appropriate means to the attainment of a 

legitimate end, the effective execution of the 

granted power to regulate interstate commerce. . . . 

The power of Congress over interstate commerce is 

plenary and complete in itself, may be exercised to 

its utmost extent, and acknowledges no limitations 

other than are prescribed in the Constitution. . . . 

It follows that no form of state activity can 
29

constitutionally thwart the regulatory power granted 

by the commerce clause to Congress. Hence the reach 

of that power extends to those intrastate activities 

which in a substantial way interfere with or obstruct 

the exercise of the granted power. 

United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 

(1942); see also Wickard v. Filburn, 317 U.S. 111, 128-29 

(1942) (extending Congress’ power over interstate commerce to 

include intrastate activities that may have an indirect effect 

on interstate commerce); Gonzales v. Raich, 545 U.S. 1, 18 

(2005). 

 In 1953, Congress ceded “title to and ownership of the 

lands beneath navigable waters within the boundaries of the 

respective States, and the natural resources within such lands 

and waters.” Submerged Lands Act of 1953, 43 U.S.C. § 1311. 

However, in ceding title and ownership of the subaqueous 

bottomlands, Congress specifically retained “all its 

navigational servitude and rights in and powers of regulation 

and control of said lands and navigable waters for the 

constitutional purposes of commerce, navigation, national 

defense, and international affairs.” 43 U.S.C. § 1314(a) 

(emphasis added). Moreover, Congress specifically established 

that its rights in and powers of regulation and control over 

the subaqueous bottomlands “shall be paramount to” the rights 

and powers of the respective states. Id. 
30

 While the majority is correct that “a federal statute 

cannot dictate how we understand the right of jus publicum

under the Constitution of Virginia,” it ignores the Supremacy 

Clause which specifically states that the “Constitution, and 

the Laws of the United States which shall be made in Pursuance 

thereof . . . shall be the supreme Law of the Land . . . any 

Thing in the Constitution or Laws of any State to the Contrary 

notwithstanding.” U.S. Const., Art. VI, cl. 2. (emphasis 

added). It is readily apparent that Congress has deemed that 

the starting point for determining what activity is encompassed 

by the “right of navigation” inherent in the jus publicum is no 

longer found in the Constitution of Virginia; rather, the 

starting point is federal law. 

 Consequently, I believe that the determination that the 

barge is a vessel under 1 U.S.C. § 3 is dispositive, as 

Congress has deemed that all vessels are, by definition, “in 

navigation.” As a necessary corollary, any watercraft that is 

“removed from navigation for extended periods of time,” is no 

longer a vessel. Lozman v. City of Riviera Beach, 133 S. Ct. 

735, 751 (2013). Therefore, it is axiomatic that the use of a 

watercraft in navigation (i.e., as a vessel) invokes the right 

of navigation under federal law. 
31

 Additionally, the determination that the barge is a vessel 

obviates the need for any examination of how the vessel is 

used. As the United States Supreme Court explained, 

the “in navigation” requirement is an element of the 

vessel status of a watercraft. It is relevant to 

whether the craft is “used, or capable of being used” 

for maritime transportation. A ship long lodged in a 

drydock or shipyard can again be put to sea, no less 

than one permanently moored to shore or the ocean 

floor can be cut loose and made to sail. The 

question remains in all cases whether the 

watercraft's use “as a means of transportation on 

water” is a practical possibility or merely a 

theoretical one. 

Stewart v. Dutra Constr. Co., 543 U.S. 481, 496 (2005). 

 Thus, the majority’s examination of the Inn’s use of the 

barge is moot. Indeed, by examining the issue of how the barge 

is used, the majority effectively disregards the barge’s 

designation as a vessel. It cannot be disputed that the barge 

in the present case is a vessel. Therefore, in my opinion, it 

similarly cannot be disputed that the Inn was engaging in its 

public right of navigation through its use of the barge. 

 Furthermore, to hold that the VMRC has jurisdiction to 

enforce Code § 28.2-1203(A) with regard to vessels would yield 

an absurd result. This Court has recognized that “when the 

language of an enactment is free from ambiguity, resort to 

legislative history and extrinsic facts is not permitted 

because we take the words as written to determine their 

meaning.” Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 
32

87 (1985). However, our jurisprudence makes it clear that 

there are certain, limited exceptions to this rule. 

In construing statutes, courts are charged with 

ascertaining and giving effect to the intent of the 

legislature. That intention is initially found in 

the words of the statute itself, and if those words 

are clear and unambiguous, we do not rely on rules of 

statutory construction or parol evidence, unless a 

literal application would produce a meaningless or 

absurd result. 

Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d 

345, 346 (1997) (emphasis added) (citations omitted). The term 

“absurd result” describes “situations in which the law would be 

internally inconsistent or otherwise incapable of operation.” 

Boynton v. Kilgore, 271 Va. 220, 227 n.9, 623 S.E.2d 922, 926 

n.9 (2006) (internal quotation marks omitted). 

 It is readily apparent that the majority’s definition of 

the right of navigation would render Code § 28.2-1203(A) 

incapable of operation. The majority’s definition of the right 

of navigation would give the VMRC jurisdiction to require every 

watercraft not used for commercial purposes to get a permit 

every time it is over state-owned subaqueous bottomlands. This 

is not such a far-fetched proposition, as the VMRC has 

unequivocally indicated that it would embrace such a ruling, as 

demonstrated by its statement, which the majority quoted, that 

anything that floats over state-owned subaqueous bottomland “is 

an encroachment because it entered into the rights and 
33

authority of the Commonwealth without its permission.” As the 

Court of Appeals correctly noted, it would be impossible for 

the VMRC to implement such a requirement because “vessels can 

move and stop over the bottomlands numerous times in one day.” 

Virginia Marine Res. Comm’n v. Chincoteague Inn, 61 Va. App. 

371, 386, 735 S.E.2d 702, 710 (2013). 

 Additionally, the majority’s approach results in the de 

facto criminalization of the act of temporarily mooring noncommercial vessels. As stated above, every vessel not used for 

commercial purposes would be required to get a permit every 

time it is moored over state-owned subaqueous bottomlands. The 

failure to acquire such a permit from the VMRC would subject 

the owner of the vessel to prosecution for a Class 1 

misdemeanor, Code § 28.2-1203(B), and a fine of up to $25,000 

per day. Code § 28.2-1213(A). 

 The problem lies in the fact that the VMRC does not have 

the authority to issue the required permit. Under Code § 28.2-

1207(A), the VMRC may approve permits “to trespass upon or over 

or encroach upon subaqueous beds which are the Commonwealth's 

property.” (Emphasis added.) Notably absent is the authority 

to approve permits for encroachments over state-owned 

subaqueous bottomlands. Under the maxim expressio unius est 

exclusio alterius, the mention of a specific item in a statute 

implies that the “omitted items were not intended to be 
34

included.” Virginian-Pilot Media Cos. v. Dow Jones & Co., 280 

Va. 464, 468-69, 698 S.E.2d 900, 902 (2010). Thus, the General 

Assembly’s omission of “over” with regard to permits to 

encroach implies that it did not intend to give the VMRC the 

authority to grant such permits. Clearly, the General Assembly 

never intended to outlaw all recreational activities over 

state-owned subaqueous bottomlands. However, that is the 

natural result of the majority’s application of Code § 28.2-

1203(A). 

 It is readily apparent that the majority recognizes these 

inherent flaws in its opinion as demonstrated by its decision 

to address what this “appeal” does not address in footnote 6. 

The majority is correct: the VMRC’s “appeal” does not address 

any of the situations listed. However, the majority ignores 

the fact that its holding would still be dispositive of those 

factual situations. Although the majority implies that docking 

a boat used for purposes of personal travel or living on a 

houseboat over state-owned subaqueous bottomlands would somehow 

require a different result from the present case, it offers no 

indication of how. Nor could it, as neither of these 

activities involves the movement or transportation of goods 

from place to place. Indeed, if today’s holding does not apply 

to those factual situations, then the majority must acknowledge 

that it is not defining the public right of navigation; rather, 
35

it is defining the right of navigation as it applies solely to 

the Inn. 

 Such a subjective approach can only lead to abuse. 

Indeed, I find it particularly telling that, at oral argument, 

the VMRC conceded that a boat that is moored for a majority of 

the year and used primarily as a guesthouse would not be 

subject to Code § 28.2-1203(A), because its use is incident to 

navigation. However, the barge in the present case, which is 

only moored for four months of the year and then actively used 

as a work barge for the remaining eight months would be subject 

to Code § 28.2-1203(A). The majority, however, tacitly 

approves of such an arbitrary distinction. 

 Allowing the VMRC to enforce Code § 28.2-1203(A) with 

regard to vessels, whether temporarily moored or otherwise, 

would necessarily result in the relinquishment, surrender, 

alienation, destruction or substantial impairment of the right 

of navigation, a clear violation of the jus publicum. 

Moreover, the application of Code § 28.2-1203(A) to vessels 

renders the statute incapable of operation and ripe for abuse. 

Accordingly, I would affirm the Court of Appeals’ decision 

finding that the VMRC does not have jurisdiction to enforce 

Code § 28.2-1203(A).