He's baaack!  The old man, the sea, and short course in marine law

I’m back with more of this story; before we proceed I am going to ask you to become more than just a juror in this case.

I’m going to ask you to become the judge too ask you to be judge in that VMRC is a quasi judicial body and acts both as judge and jury. 

You and I put our pants on in the morning just like the Commission members do, they are no different the you and I. The big difference is that they have the AAG seemingly whispering advice into their ears. 

In  telling this story I’m spouting more law than a whale; so come sing along with “Mitch”. If you are reading these letters, chances are that you are on the Internet,  so go up and type the keywords, “VIRGINIA GENERAL ASSEMBLY” and click go. When the list of sites come up click on “VIRGINIA GENERAL ASSEMBLY” when this site comes up look down in the lower
right hand corner an click on “LAW”. 

When this site appears, look in the center section and click on “TABLE OF CONTENTS”. Now! you and I are reading out the same law book and not that “funny one” those other fellows seem to be reading. Remember a couple letters back I walked you through the provisions of law relevant to the application and assignment of planting ground? 

The Virginia Code  should now be in front of you. Book Mark this page so that you can come back easily. You had just as well scroll down to “Title 28.2 FISHERIES AND HABITAT OF THE TIDAL WATERS”. Click this title and look to Chapter 6 “PLANTING GROUNDS”. Now go to 28.2-606 and we will be sailing down the same channel together. 

Print this section of Code and you can refer to it as this incident unfolds, the problem here is that these sections come up singular and you only get one section on a page. I find the best way to print these Code references is to leave “America Online” open and open “Microsoft Works”, then click “start from scratch” on the “Task Wizard” next click “Word Processor” then click “next”, next click “Create It” then click “Create Document”. Type a header such as the word “LAWS” at the top of the page. Save this document. 

Leave “Works”open and click back on “America Online” at the top of your page. If you left the page open 28.2-606 should be there. Use your mouse to highlight that code, click “Edit” at the top of the page, now click “paste”. Now click “Microsoft Works” at the top of the page and if you have left every thing open you should be looking at your new document with “LAWS” oriented at the top. Go up and click “Edit” and then click “paste”. Now click “America Online” and you should be looking at the highlighted 28.2-606. Click next at the bottom or top of the page and highlight 28.2-607. Click edit, then copy, then Microsoft Works and you should be looking at the bottom of 28.2-606 that you pasted there.

Go to the page and click Edit, the click paste and 28.2-607 will pasted below 28.2-607. Being you are now my quasi judge and jury we are building a reference page so that you have the tools to work with. You can now print this or these pages and you instead of having one law on a page. Many laws on the same page and you can print these pages and you have a quick reference. 

I suggest that you print my letters also, then you can compare my personal views of the law on the one hand check them against your personal findings from the printed laws that you now have in your other hand. I know that the majority of you that are following these letters are way more familiar with the steps I have just described than I am. This is my second year with a computer and  I self taught and far from adept. I have walked through these steps for the reason that a good number of the fisherman that are following this story have computers in their home but they haven’t taught themselves to use them. 

Most have been bought for their school age children or grandchildren. I am going to give you more code sections to put on your reference sheet where we have started it, and then I’m going to give you the “Final Decision of the Commission” in this case. 

In my personal opinion the Commission has acted without “jurisdiction” which makes the decision void and unenforceable. The decision unlawfully denied and voided my friend’s (“David”) lawful application for planting ground. David had invested $125.00 in his application and needed the ground as a part of his livelihood. The unlawful act of the Commission is fraudulent and can be viewed as criminal. The AAG in this case has knowingly and willingly participated in this fraud and crime and thus can be viewed as a principle. 

That’s my view, what’s yours. Look at your reference sheet, remember if you can’t understand the law it can be viewed as unconstitutionally vague and unenforceable. Put the following statutes on your reference sheet: § 28.2-603, § 28.2-604, § 28.2-605, § 28.2-606, § 28.2-607, § 28.2-609, § 28.2-610, § 28.2-631, § 28.2-216, § 28.2-217, § 28.2-218, § 28.2-219, § 2.2-4000, § 2.2-4001, § 2.2-4002.B2, § 2.2-4002.B4. That’s enough for the present. 

We are going to now look to the jurisdiction of the Commission to deny David’s application. David’s application was denied pursuant to the Commission’s judgment that the assignment of the ground applied for was not in the public interest pursuant to § 28.2-607.1. Now, look at that law - that’s the second one on your reference sheet. 

§ 28.2-607.1. is only one sentence. Give particular attention to the beginning of that sentence. “ The application and assignment complies with all applicable provisions of law...”  You will note that the law requires that before the Commissioner can exercise his judgment as to whether the assignment is in the public interest. The application must comply with all applicable provisions of law. 

Let’s you and I take a look at the same facts and applicable law where the Commission found their Jurisdiction to deny David’s application as not in the public interest. Look to the facts. [1st.] David’s application was unlawfully denied by a VMRC staff person during the sixty day period of posting and publication pursuant to § 28.2-606. 

The purpose of this period of notice and waiting is to make the public aware of the application and to give time for public protest to be filed in the Commissions office if any person is inclined to do so. In consideration of the uncontested facts that David’s application met with all applicable provisions of law when a VMRC staff person unlawfully denied the application is of great significance to this incident. 

This unlawful denial and the further unlawful acts of the Commission are the linchpins in this case.[2nd.] David believing that his rights to planting had been unlawfully denied, demanded a formal hearing pursuant to: § 28.2-216.

 Hearings before Commission:  “A. Any person whose rights, duties, or privileges, including matters relating to licenses, shellfish planting grounds, or fishing stands, have been or may be affected
by any action or inaction of the Commission or Commissioner without a formal hearing may demand in writing a formal hearing of his complaint. 

The Commission shall hold a hearing on the complaint as soon as practicable. All known interested parties shall be afforded an opportunity to  be heard before the Commission....” ( I have highlighted shellfish planting grounds for reason that the VMRC and the AAG either can’t find these words in this basic law or having difficulty in determining that David’s application is for shellfish planting ground.) 

I don’t think you as a reader are having any difficulty finding under this basic law that a person has the right to a formal hearing in matters affecting his rights or privileges relating to shellfish planting ground. 

I am now going to give you another small excerpt of law. “§ 2.2-4001. (Effective October 1, 2002) Definitions. "Basic law" or "basic laws" means provisions of the Constitution and statutes of the Commonwealth authorizing an agency to make regulations or decide cases or containing procedural requirements therefor.”(emphasis added) 

§ 28.2-216 as noted above is a statute of the Commonwealth of Virginia and is a basic law. The reason  that I have emphasized basic law and shellfish planting ground is that I am going to close this letter with the findings of the VMRC and the AAG from that funny law book that they read. I referred to that funny book in my last letter. [3rd.] 

David’s formal hearing was held on September 24, 2002 and marks the entrance of this vexatious old fisherman as an interested party and proponent to the proper forwarding of David’s application as in due  process of law. When the Commission moved and voted to deny David’s application. Finding that the application was not in the public interest pursuant to the provisions of § 28.2-607.1. 

The Commission’s decision was based on the sworn testimony of Marine Police Officer, Captain Randy Widgeon. Suspecting Captain Widgeon’s testimony may have been perjured, I moved the Virginia Beach Circuit Court to delay judgment in my case until I examine the evidence from which Captain Widgeon’s testimony was derived. 

That’s another coming chapter of this story. For now lets look to the authority and jurisdiction of the Commission to deny David’s application. When David and I appeared before the Commission on September 24, 2002 it was an uncontested fact that David’s application met all the requirements of applicable law. 

On September  24, 2002 more than sixty days had expired since the posting and advertisement of the application without a protest being filed in the office of the Commission. Therefore certain mandates of the basic law § 28.2-607 were put into effect. (a) a surveyor must be selected to survey the ground. (b) the surveyor must forward a plat of the survey to the Commissioner. (c) after the plat is recorded in the Commissioner’s office there must be a thirty day waiting period to allow for public protest. 

None of the  mandates and perquisites of (a),(b),or(c) were accomplished. The application did not comply with all the applicable provisions of law and for this reason the Commission lacked the authority and jurisdiction under the provisions of § 28.2-607.1. to exercise their judgment as to whether the assignment of the ground was in the interest of the public. In that Commission lacked jurisdiction to make judgment the final decision was null and void and can not be enforced under the basic laws of this Commonwealth.

  1. Here are two Virginia opinions for you readers to consider:
    An order is void ab initio if entered by a court in the absence of jurisdiction of the subject matter or over the parties, if the character of the order is such that the court had no power to render it, or if the mode of procedure used by the court was one that the court could "not lawfully adopt." Evans v. Smyth-Wythe Airport Comm'n, 255 Va. 69, 73, 495 S.E.2d 825,828 (1998)(quoting Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177 (1887)).

  2. The lack of jurisdiction to enter an order under any of these circumstances renders the order a complete nullity and it may be "impeached directly or collaterally by all persons, anywhere, at any
    time, or in any manner." Barnes v. Am. Fertilizer Co., 144 Va. 692, 705, 130
    S.E. 902, 906
    (1925).  (emphasis added - remember the Commission is a quasi judicial body) 

  3. Next look to: Broomfield v. Jackson 18 Va. App. 854, 447 S.E.2d 880 (1994) “[I]t is our duty to construe the law as it is written. An erroneous interpretation of a statute by those charged with it’s enforcement cannot be permitted to override it’s clear meaning. Amendments of statutes can only be made by the legislature and not by the courts or administrative officers charged with enforcement.” 

Old Captain Vexatious here, being aggrieved by the unlawful and fraudulent act of the Commisson filed his grievances in court. One in the Circuit Court for Virginia Beach, seeking injunction pursuant to § 2.2-4028 and another in the Circuit Court of Northampton County on appeal pursuant to § 28.2-219.  

What you are reading is a part of my pleadings in these two active court cases. Before I go further let’s you and I consider my accusation of fraud. Fraud is a deception deliberately practiced in order to secure unfair or unlawful gain. 

One who defrauds; a cheat. The Commission has defrauded David by the taking of his lawful application. I take this a step further, I believe that the Commission has committed a crime in the taking of David’s application. I will address the alleged in another chapter of this voyage upon this sea of deceit and corruption. 

Let’s now address the status of Virginia’s First Attorney’s role in this alleged crime and deceit. The AAG in this case Carl Josephson, writes and signs all of the pleadings for the VMRC, also the name Jerry W. Kilgore as Attorney General for the Commonwealth of Virginia is affixed to these pleadings. My point is that if Mr. Kilgore’s assistant, Carl Josephson knowingly and purposely induces arguments and pleadings in court that escalates and cases of fraud and crime then the Attorney General’s Office is subject to disciplinary sanctions and criminal process. 

The Court’s civil jurisdiction may not be invoked by committing a criminal act or invoked by actions contrary to the disciplinary rules of the Virginia code of professional responsibility. Yet the Office of the  Attorney General in it’s pleadings against this old fisherman tends to maliciously prosecute a citizen for right to protect his property. 

The Office of the Attorney General and the VMRC seem to lose sight of the fact that Virginia is a Commonwealth and the wealth of the state is held in common by it’s citizens, see the following:  BOGGS ET  ALS.  V.  THE COMMONWEALTH  76  VA.  1882  (page 994 )

“1. LEGISLATURE--- Fisheries and oyster-beds.---Where not restricted by the United States constitution, a State is entitled to legislate over her public property and regulate its use. especially fisheries and oyster-beds within her limits;  the same being the common property of her citizens,   never ceded to the United States.”

There is no question as to the right of a state to enact laws to protect the natural resources of a state for it’s citizens. In fact it is the duty of our legislature to protect Virginian natural resources for the use of it’s citizens and the future generations. 

It is the Attorney General’s duty to uphold and protect the laws of the state. In these active court cases that I am relating I would like you readers to form an opinion as to whether the AAG is doing his duty in protecting the citizens from the unlawful imposition and use of basic laws against or whether the AAG attempts to prosecute citizens that attempt to contest the unlawful abuse and enforcement of basic laws. 

In closing this letter I will refer you in part of the VMRC pleadings by the AAG in the current and active case before Circuit Court of Northampton County. 

Remember that this pleadings have been filed and are a matter of public record. In my last letter I referred to that “funny code book” that the AAG and the Commissioner seem to be reading from. I quoted excerpts from Commissioner Pruitt’s letter that is filed in this case. 

I now bring your attention to excepts from Pruitt’s letter of October 4, 2002: “We believe, and one circuit court has ruled in our favor, that oyster lease decisions under Chapter 6 of Title 28.2 of the Code of Virginia, are not subject to judicial review  under Virginia’s Administrative Process Act, being exempted by applicable provisions of Code § 2.2-4002.B. A copy of the Court’s Order in Bagwell v.VMRC, Case # 131CH47-00(Northampton County Circuit Court), is attached for your protection.” 

The Court Order signed by Judge Glen A. Tyler the above case had in part the following language: “VMRC demurred and moved to dismiss on the following grounds: 1. Code §§ 9-6.14: 4.1.B2 and B4 ( this former code can now be found as §§ 2.2- 4002.B2 and B4.) exempt VMRC’s decision from judicial review under Virginia’s Administrative Process Act (“VAPA”),§ 9-6.14:1 et seq.” 

In this above case the Judge Tyler ordered the appeal dismissed with prejudice and additionally ordered that Bagwell pay $250.00 as sanction, payable to the Commonwealth of Virginia. As you can see above I have underlined Commissioner Pruitt’s attempt to protect me from possible court sanctions for evoking the Court’s review of leases of oyster planting ground that are exempt from judicial review. In this old fisherman’s present case in the Circuit Court of Northampton County. 

I have taken the unthinkable step that the VMRC and the AAG have warned me not to do. I’ve asked for judicial review of the VMRC’s unlawful denial of an application for oyster planting ground. I’m just a  “vexatious pro se litigant”. In the present case in Northampton County, the AAG’s memorandum to support VMRC’s “Motion to Dismiss” for reason that VMRC decisions on oyster are exempt from judicial review is expressed on pages 11.,12.,13. and 14. 

The AAG uses the same argument that he previously used in the Bagwell case, that is oyster leases or contracts and as such or exempt from judicial review pursuant to §§ 2.2- 4002.B2 and B4. of the APA. 

Bearing in mind that the Office of the Attorney General has the duty to uphold and protect Virginia Law, let’s you and I review the AAG’s memorandum of law in part. The AAG uses APA § 2.2-4002. Exemptions from chapter generally. B. Agency action relating to the following subjects shall be exempted from the provisions of this chapter:  2. The award or denial of state contracts, as well as decisions regarding compliance therewith. 4. Grants of state or federal funds or property.  

The AAG and the VMRC are arguing that the leasing of oyster planting grounds are considered as contracts and are grants of property. PLAIN AND SIMPLE HOGWASH FROM THE ATTORNEY WHO HAS THE DUTY TO PROTECT THE CITIZENS FROM THE UNLAWFUL ENFORCEMENT OF VIRGINIA LAW. 

Let’s go back very quickly to basic VA law. The provisions of § 28.2-216. Hearings before Commission. “ A. Any person whose rights, duties, or privileges, including matters relating to licenses, shellfish planting grounds, or fishing stands, have been or may be affected by any action or inaction of the  Commission or Commissioner without a formal hearing may demand in writing a formal hearing of his complaint. 

The Commission shall hold a hearing on the complaint as soon as practicable...” (emphasis added) § 28.2-219. Judicial review in contested cases. “Any person aggrieved by a final decision in a contested case is entitled to judicial review in accordance with the Administrative Process Act (§ 2.2-4000 et seq.).”(emphasis added) § 2.2-4001. (Effective October 1, 2002) Definitions. "Basic law" or "basic laws" means provisions of the Constitution and statutes of the Commonwealth authorizing an agency to make regulations or decide cases or containing procedural requirements therefor.” (emphasis added).

As you plainly see the provisions of basic law allow the Commission to hear and decide cases pertaining to shellfish planting grounds, you can plainly see that any person aggrieved by a finial decision of the Commission is entitled to judicial review under the APA. You can further plainly see that the APA defines "Basic law" as statutes of the Commonwealth authorizing an agency to decide cases or containing procedural requirements therefore. 

Now get ready for the kicker. § 2.2-4000. Short title; purpose.  A. This chapter may be cited as the "Administrative Process Act." B. The purpose of this chapter is to supplement present and future basic laws conferring authority on agencies either to make regulations or decide cases as well as to standardize court review thereof save as laws hereafter enacted may otherwise expressly provide. This chapter shall not supersede or repeal additional procedural requirements in such basic laws.

The very sad and chilling aspect of the attempt to have Bender’s case dismissed and sanctions imposed against this old fisherman rests in the fact that both the VMRC and the AAG are both fully aware that their acts are fraudulent and could be considered to be criminal. See the following statute and give it some thought before I get back with more of this story:§ 28.2-903.1. Impeding lawful fishing in tidal waters; penalty. A. It is unlawful for any person to willfully and intentionally impede the lawful fishing of any species of fish or shellfish.

"Fishing" means those activities defined in §28.2-100  as "fishing," "fisheries" or "to fish."  B. Notwithstanding any other provision of law, any person convicted of a violation of this section shall be guilty of a Class 3 misdemeanor. I’ve got to catch up on my court cases, but I’ll be back. Come join old

Captain Vexatious on this voyage in the good ship OUTRAGE. Hoist a little sail, stick your oar in the water, write to this website voice your opinion. This is going to be a long voyage with many interesting ports of call. I’d love some passengers, sure do get lonesome.

Old Vexatious pro se, Ed Bender - Eastern Shore.