Can the Virginia General Assembly hand off the job of redrawing Baylor grounds oyster boundaries to the Marine Resources Commission?

Plain-English summary

A state senator asked whether the General Assembly could delegate to the Virginia Marine Resources Commission (VMRC) the job of adjusting boundaries of the Baylor grounds, Virginia's historic oyster beds mapped by James Bowen Baylor in the 1890s. The AG answered yes, with a condition: the delegating statute had to contain specific policies and definite standards to guide the VMRC.

Two constitutional inquiries framed the answer. First, did the Virginia Constitution forbid this kind of delegation? No. Article XI, § 3 lets the General Assembly define and determine oyster grounds "by surveys or otherwise." The "or otherwise" language was read as not prohibiting delegation. History reinforced the conclusion: the General Assembly delegated the original 1892 Baylor survey to the Board on the Chesapeake and its Tributaries, and later redrew boundaries through the Commission of Fisheries, a VMRC predecessor.

Second, did Virginia's nondelegation doctrine allow this kind of grant? Yes, provided the enabling law fixed standards. Virginia's nondelegation doctrine doesn't prohibit delegation to administrative agencies, it just requires the legislature to set policies and standards specific enough to guide the agency. A bare grant of authority without standards is unconstitutional. The leading cases the AG cited were Dickerson v. Commonwealth and Bell v. Dorey Electric Co. The Supreme Court has held delegations valid where the statutory terms have well-understood meanings and prescribe sufficient guidance. Without those guardrails, the statute fails.

So the General Assembly had a green light to delegate Baylor grounds boundary work to the VMRC. The catch was drafting: the statute had to spell out the policies and tests the VMRC would use.

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.

Common questions

What is a Baylor ground?
A Baylor ground is one of the natural oyster beds, rocks, and shoals mapped by James Bowen Baylor in the 1890s. The Virginia Constitution treats these as held in trust for the people of the Commonwealth, off-limits to private leasing.

Does the Constitution protect the Baylor grounds?
Yes, but not absolutely. Article XI, § 3 prohibits leasing, renting, or selling the natural oyster grounds. But it also gives the General Assembly the power to redefine the limits of those grounds "by surveys or otherwise," meaning the boundaries are not frozen.

Why does the nondelegation issue matter here?
Because if the legislature just told the VMRC "go redraw the lines as you see fit," the delegation would be unconstitutional under Virginia's case law. The legislature has to provide enough direction that the VMRC isn't making up the policy on its own.

What kind of standards would be enough?
The opinion didn't draft sample legislation. It cited Bell v. Dorey for the idea that the statutory terms or phrases should have a well-understood meaning and should prescribe sufficient standards to guide the administrator. Cases like Dickerson (alcohol transport regulation) and Board of Supervisors v. State Milk Commission (milk pricing) show standards Virginia courts have accepted.

Has Virginia delegated this kind of work before?
Yes. The opinion cited the 1892 statute creating the original Baylor survey and the resurvey delegated to the Commission of Fisheries (a VMRC predecessor) under § 3233 of the Code of Virginia of 1919, validated in Blake v. Marshall.

Background and statutory framework

The Virginia Constitution vests legislative power in the General Assembly (art. IV, § 1). Article IV, § 14 reads the legislature's authority broadly, extending to all subjects not forbidden, with the Constitution itself functioning as a restriction on power rather than a grant. The Virginia Supreme Court repeatedly emphasized this view in Pine v. Commonwealth and Dean v. Paolicelli.

Article XI, § 3 recognizes the General Assembly's role in defining and determining the natural oyster beds. It protects them in trust for the people but lets the legislature "from time to time, define and determine such natural beds, rocks, or shoals by surveys or otherwise."

Virginia's nondelegation doctrine traces through cases like Dickerson v. Commonwealth (delegation to ABC Board upheld), Board of Supervisors v. State Milk Commission (delegation of milk pricing upheld), and Chapel v. Commonwealth (Dry Cleaners Act struck down for lack of standards). The current formulation comes from Bell v. Dorey Electric Co.: delegations are valid only when they "establish specific policies and fix definite standards to guide the official, agency, or board in the exercise of the power." Otherwise they are unconstitutional and void. Volkswagen of America v. Smit added a due process gloss: standards must be clear enough to guide the officer and inform regulated parties.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Const. art. IV, § 1 (legislative power)
• Va. Const. art. IV, § 14 (legislative authority)
• Va. Const. art. XI, § 3 (oyster grounds in trust; legislature's redefinition power)
• City of Richmond v. Va. Ry. & Power Co., 141 Va. 69, 126 S.E. 353 (1925) (Va. Supreme Court)
• Pine v. Commonwealth, 121 Va. 812, 93 S.E. 652 (1917) (Va. Supreme Court)
• Dean v. Paolicelli, 194 Va. 219, 72 S.E.2d 506 (1952) (Va. Supreme Court)
• Comm'n of Fisheries v. Hampton Rds. Oyster Packers & Planters Ass'n, 109 Va. 565, 64 S.E. 1041 (1909) (Va. Supreme Court)
• Blake v. Marshall, 152 Va. 616, 148 S.E. 789 (1929) (Va. Supreme Court)
• Dickerson v. Commonwealth, 181 Va. 313, 24 S.E.2d 550 (1943) (Va. Supreme Court), aff'd as Carter v. Virginia, 321 U.S. 131 (1944) (U.S. Supreme Court)
• Bd. of Spvsrs. v. State Milk Comm'n, 191 Va. 1, 60 S.E.2d 35 (1950) (Va. Supreme Court), aff'd, 340 U.S. 881 (1950)
• Bell v. Dorey Elec. Co., 248 Va. 378, 448 S.E.2d 622 (1994) (Va. Supreme Court)
• Thompson v. Smith, 155 Va. 367, 154 S.E. 579 (1930) (Va. Supreme Court)
• Chapel v. Commonwealth, 197 Va. 406, 89 S.E.2d 337 (1955) (Va. Supreme Court)
• Andrews v. Bd. of Spvsrs., 200 Va. 637, 107 S.E.2d 445 (1959) (Va. Supreme Court)
• Volkswagen of Am. v. Smit, 279 Va. 327, 689 S.E.2d 679 (2010) (Va. Supreme Court)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-036_Northam.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

September 7, 2012

The Honorable Ralph S. Northam
Member, Senate of Virginia
Post Office Box 9363
Norfolk, Virginia 23505

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

Issues Presented
You inquire whether the General Assembly may delegate to the Virginia Marine Resources Commission the authority to make adjustments to boundaries of the Baylor grounds. You also ask, if this is permitted, under what conditions the delegation could be made.

Response
It is my opinion that the General Assembly may delegate Baylor grounds boundary determinations and boundary adjustments to the Virginia Marine Resources Commission ("VMRC"), provided the law delegating the authority establishes specific policies and fixes definite standards to guide the VMRC in making its determinations.

Applicable Law and Discussion
The Constitution of Virginia provides that

The authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject. The omission in this Constitution of specific grants of authority heretofore conferred shall not be construed to deprive the General Assembly of such authority ... unless such purpose plainly appear.

Accordingly, Virginia courts look to the Constitution of Virginia for limitations of legislative power, not for grants of power. As the Virginia Supreme Court has explained, the Constitution of Virginia is to be looked to, not to ascertain whether a power has been conferred to the General Assembly, but whether it has been taken away. Unless a provision of the Virginia Constitution compels the legislature to act or operates to prohibit it from acting, the General Assembly is free to legislate as its judgment dictates.

The Constitution of Virginia vests the legislative power of the Commonwealth in the General Assembly. Article XI, § 3 recognizes the General Assembly's authority to define and determine Virginia's oyster grounds; it expressly provides, in pertinent part, that "the General Assembly may, from time to time, define and determine such natural beds, rocks, or shoals by surveys or otherwise." This language does not prohibit the General Assembly from delegating its authority here. In fact, when the General Assembly authorized the original Baylor survey in 1892, it delegated to the Board on the Chesapeake and its Tributaries responsibility for overseeing "a true and accurate survey of the natural oyster beds, rocks and shoals of the commonwealth." Furthermore, the General Assembly subsequently delegated its authority to re-determine the boundaries of the Baylor grounds to a predecessor of the VMRC.

The Virginia Constitution does not prohibit the General Assembly from delegating the definition and determination of the oyster grounds to the VMRC. Rather, it states that the General Assembly may define and determine the oyster grounds by survey or otherwise. Additionally, the General Assembly has made this delegation in the past. Accordingly, it is my opinion that delegating this authority to the VMRC is permissible.

Nevertheless, for this delegation to remain within Constitutional limits, the laws delegating this authority must establish specific policies and fix definite standards to guide the VMRC in making its determinations. The Supreme Court of Virginia has recognized that delegating authority to administrative agencies "is essential to carry out the legitimate functions of government[, for] [i]f nothing could be left to the judgment and discretion of administrative officers, government could not be efficient and the legislation itself would become 'either oppressive or inefficient.'" Nonetheless, the Virginia Supreme Court has held that the General Assembly cannot delegate its legislative power when the delegation is accompanied only by a broad statement of general policy. While statutes enjoy the presumption of constitutionality, delegations of legislative power are valid only if they establish specific policies and fix definite standards to guide the official, agency, or board in the exercise of the power. Delegations of legislative power that lack such policies and standards are unconstitutional and void.

Whether the legislative delegation is constitutional depends on the specific provisions of the statute. The Supreme Court has held that delegations of authority are adequately limited where the terms or phrases employed in the statute have a well understood meaning and prescribe sufficient standards to guide the administrator. As such, any statutory scheme delegating Baylor grounds determinations to the VMRC must be adequately limited in that the terms or phrases employed in the statutes have a well understood meaning and prescribe sufficient standards to guide the VMRC in making Baylor grounds determinations.

Conclusion
Accordingly, it is my opinion that the General Assembly may delegate Baylor grounds boundary determinations and boundary adjustments to the Virginia Marine Resources Commission, provided the law delegating the authority establishes specific policies and fixes definite standards to guide the VMRC in making its determinations.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General