Is fish farming or oyster aquaculture covered by Virginia's Right to Farm Act protections?

Plain-English summary

In March 2012, Delegate Brenda Pogge asked the AG whether aquaculture, raising fish, oysters, and other aquatic organisms in controlled settings, qualified as an "agricultural operation" under the Virginia Right to Farm Act. The answer mattered because the Act limits localities' authority to regulate agricultural operations through zoning. If aquaculture counted, local rules restricting fish or oyster farming in agricultural districts would be vulnerable. The AG said it did not count.

The Act defines "agricultural operation" as "any operation devoted to the bona fide production of crops, or animals, or fowl including the production of fruits and vegetables of all kinds; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; and the production and harvest of products from silviculture activity." Aquatic organisms are not mentioned. The AG zeroed in on "animals."

In its broadest dictionary sense, "animal" includes "[a]ny organism of the kingdom Animalia," which would sweep in fish, mollusks, and other aquatic creatures. The AG noted another provision of the Code defines "animal" that broadly ("any organism of the kingdom Animalia, other than a human being"). But reading the Act as a whole, the AG concluded "animal" there was not meant to include fish or other non-mammals. The reasoning: the Act exempts operations producing "animals, or fowl." Chickens and other fowl are part of Animalia, so if "animal" already covered everything in Animalia, "or fowl" would be superfluous. Construing statutes to avoid superfluous language, the AG adopted the secondary dictionary sense, "[a]ny such organism other than a human being; especially, a mammal."

So "animal" in the Right to Farm Act meant common barnyard animals (cows, pigs, horses, etc.) limited to mammals. Fish and other aquatic organisms were neither animals (in that narrower sense) nor crops, fowl, or any other listed category. Aquaculture therefore fell outside the Act.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Virginia Right to Farm Act limits when an agricultural operation can be declared a nuisance and restricts local zoning ordinances that "unreasonably restrict or regulate farm structures or farming and forestry practices in an agricultural district or classification." Its definition of "agricultural operation" lists crops, animals, fowl, fruits, vegetables, meat, dairy, poultry products, nuts, tobacco, nursery, floral, and silvicultural products. Aquatic organisms are not on that list.

Virginia's aquaculture statute defines aquaculture as "the propagation, rearing, enhancement, and harvest of aquatic organisms in controlled or selected environments, conducted in marine, estuarine, brackish, or fresh water" and "aquatic organism" as "any species or hybrid of aquatic animal or plant."

Another provision of the Code separately defines "animal" to mean "any organism of the kingdom Animalia, other than a human being." The AG used that definition only as an interpretive guide showing the General Assembly knows how to use "animal" broadly, not as a definition controlling the Right to Farm Act.

Statutory construction canons used: plain meaning of unambiguous text; reading related statutes together; presumption against superfluous language; and that a word "takes color and expression from the purport of the entire phrase of which it is a part."

Common questions

Q: Does the Virginia Right to Farm Act cover oyster aquaculture, fish farming, or shellfish growing?
A: Per this opinion, no. Aquaculture fell outside the statutory definition of "agricultural operation," because "animal" in that definition was read narrowly to mean mammals.

Q: Can a Virginia locality regulate aquaculture through zoning more strictly than it can regulate cattle or poultry?
A: Yes, in the AG's view. The Right to Farm Act's limits on local zoning of agricultural operations did not protect aquaculture, so the usual local zoning authority applied without the Act's constraint.

Q: Why doesn't 'animal' include fish here?
A: Because the statute also lists "or fowl." If "animal" already included every member of the animal kingdom (which would include chickens), the General Assembly would not have needed to add "or fowl." The AG read the inclusion of "or fowl" as a signal that "animal" was being used in its narrower, mammal-focused sense.

Q: Does the broad "kingdom Animalia" definition of "animal" elsewhere in the Code affect this analysis?
A: Only as a secondary interpretive guide. The AG pointed to another Code provision that defines "animal" broadly to show that the General Assembly knows how to use the word in its full sense when it wants to. The contrasting wording in the Right to Farm Act (adding "or fowl") supported the narrower reading there.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/11-127_Pogge.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
804-786-2071
March 9, 2012
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Kenneth T. Cuccinelli, II
Attorney General

The Honorable Brenda L. Pogge
Member, House of Delegates
Post Office Box 1386
Yorktown, Virginia 23692

Dear Delegate Pogge:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether aquaculture is considered an agricultural operation for purposes of the Virginia Right to Farm Act.

Response

It is my opinion that aquaculture does not constitute an agricultural operation under the Virginia Right to Farm Act.

Applicable Law and Discussion

The Virginia Right to Farm Act (the "Act") is intended to "limit the circumstances under which agricultural operations may be deemed to be a nuisance" by restricting localities' ability to "unreasonably restrict or regulate farm structures or farming and forestry practices in an agricultural district or classification" through zoning ordinances.

The Act defines "agricultural operation" as "any operation devoted to the bona fide production of crops, or animals, or fowl including the production of fruits and vegetables of all kinds; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; and the production and harvest of products from silviculture activity."

When statutory language is clear and unambiguous, the plain meaning of the language used should determine the legislative intent, unless such a literal construction would lead to a manifest absurdity. Also, related statutes must be considered together in construing their various material provisions. Finally, statutes must be construed to give meaning to all of the words enacted by the General Assembly, and thus, interpretations that render statutory language superfluous are to be avoided.

Aquaculture is defined as "the propagation, rearing, enhancement, and harvest of aquatic organisms in controlled or selected environments, conducted in marine, estuarine, brackish, or fresh water." "Aquatic organisms" in turn are "any species or hybrid of aquatic animal or plant[.]"

Although the Virginia Right to Farm Act does not define the word "animal," it is clear that "animal" can be defined as to include virtually all living creatures, including the fish and other non-plant organisms that are part and parcel of aquaculture. For example, The American Heritage Dictionary, New College Edition, defines "animal" in the first instance as meaning "[a]ny organism of the kingdom Animalia, distinguished from plants by certain typical characteristics, such as the power of locomotion, fixed structure and limited growth, and nonphotosynthetic metabolism." Similarly, another provision of the Code defines "animal" as "any organism of the kingdom Animalia, other than a human being." Accordingly, in certain contexts, the word "animal" is broad enough to encompass at least some of the products of aquaculture.

While in certain circumstances "animal" may be so construed, the relevant analysis necessary to answer your inquiry is whether such a construction is possible given the language of the Right to Farm Act, for "[t]he meaning of a word . . . takes color and expression from the purport of the entire phrase of which it is a part, and it must be construed so as to harmonize with the context as a whole." Reading the language of the Right to Farm Act in its entirety leads to the conclusion that "animal" in the Act was not intended to encompass fish or other non-mammals.

Specifically, in the Right to Farm Act, the General Assembly did not exempt from certain local zoning actions only operations regarding "animals," but rather, exempted operations related to "the bona fide production of . . . animals, or fowl . . . ." The American Heritage Dictionary, New College Edition, defines "fowl" as "[a]ny of various birds of the order Galliformes; especially the common, widely domesticated chicken, Gallus gallus."

Clearly, chickens and other fowl are part of the kingdom Animalia. Therefore, if the General Assembly intended for "animal" in the Right to Farm Act to include all organisms belonging to the kingdom Animalia, there would have been no need to add the phrase "or fowl" to the statute. To interpret "animal" to include all members of the kingdom Animalia renders the phrase "or fowl" superfluous, and thus, such a construction must be rejected if possible.

Given basic dictionary definitions, alternative constructions for "animal" are possible. The American Heritage Dictionary, New College Edition, secondarily defines "animal" as "[a]ny such organism other than a human being; especially, a mammal." Interpreting the word "animal" in the Right to Farm Act as including common barnyard animals (cows, pigs, horses, etc.) with a general limitation that such animals also be mammals is consistent with the secondary dictionary definition of "animal" and gives meaning to the General Assembly's inclusion of the phrase "or fowl" in the Right to Farm Act. Accordingly, under the canons of statutory construction detailed above, this interpretation should be adopted.

Conclusion

Accordingly, it is my opinion that aquaculture does not constitute an agricultural operation under the Right to Farm Act.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General