CHAPTER 747

An Act to amend and reenact §§ 28.1-88, 28.1-89, 28.1-91, 28.1-108,
28.1-116, 28.1-119, 28.1-124, 28.1-182, 28.1-184, 28.1-187, 28.1-160 and
62-2, as severally amended, of the Code of Virginia, relating to oysters,
clams and other bivalves, prohibited areas for patent tongs, oyster
export tax, buyers’ and handlers’ licenses, assignment of planting
grounds, owners’ rights in certain waters, lawful survey, culling and
methods of catching oysters, dredging or scraping on private ground
and theft of oysters, etc.

[H 626]

Approved April 5, 1968

Be it enacted by the General Assembly of Virginia:

1. That §§ 28.1-88, 28.1-89, 28.1-91, 28.1-108, 28.1-116, 28.1-119, 28.1-124,
28.1-182, 28.1-134, 28.1-187, 28.1-160 and 62-2, as severally amended, of
the Code of Virginia be amended and reenacted as follows:

§ 28.1-88. Prohibited area for patent tongs.—It shall be unlawful
for anyone to use or employ patent tongs for the purpose of taking or
catching oysters from the natural or public rocks, beds or shoals of the
Commonwealth in the following areas:

(1) In the Piankatank River and its tributaries above a line beginning
at the extreme westmost point on a wooden jetty (point “A’”’) on the south
property line of lot 9-A owned by E. B. Bottom and lot 8-A of Gwynn’s
Island Estate subdivision, Mathews County (Deed Book 55; page no. 279),
said point located north 57° 07’, west 176.00 feet from the east side of said
lot 8-A and 9-A. Said point is located on the extreme northwest section of
Gwynn’s Island known as Cherry Point, Mathews County; thence 71° 00’
west approximately 10,140 feet, to a survey point known as the Stove R,
located on the extreme south end of Stove Point, Middlesex County; thence
north 38° 00’ east approximately 14,960 feet to point “X’’, or the east gable
of hotel, located on the extreme eastmost point of Stingray Point, Middle-
sex County. This area is to include all of Piankatank River and its tribu-
taries from Cherry Point of Gwynn’s Island to Stove Point in Middlesex
County, and all of the area of Jackson Creek and its tributaries from Stove
Point to Stingray Point;

(2) In the Rappahannock River and its tributaries, above a line drawn
from Towles Point on the north side of the Rappahannock to Burham’s
Wharf on the south side of said river, which line begins at a United States
Coast and Geodetic Survey Triangulation Point, Towles Number 2, thence
south 14° 25’ west (true) approximately eleven thousand, four hundred
feet to station “Burn (Burr)” located inshore and in line with the ruins
of Burham’s Wharf on the south side provided that patent tongs shall not
be used in water less than 21 feet in depth at the time they are used in the
area - the Rappahannock River where the use of patent tongs is per-
mitted ;

(3) * Beginning on the south shore of the James River at Pig Point,
located at the east mouth of Nansemond River opposite the westmost tank
of two tanks on Pig Point; thence in a northerly direction to a light at the
extreme north end of abandoned Pig Point Pier; thence in a northerly
direction to a fish trap buoy designated as N“H11” located on the northeast
side of the Fish Trap Reservation; thence in a northwest direction along
the northeast boundary of the Fish Trap Reservation along a line of buoys
designated as C1” and C“H15”; buoy C“H15” being located on the east
side of an area set aside in subsection (5) of this section prohibiting the
use of patent tongs in James River; thence following in a southwest dt-
rection along the area described in subsection (5) of this section to
Cooper’s Creek, located on the south side of James River in Isle of Wight
County. In addition to this described area, the use of patent tongs shall be
prohibited in Batten Bay and its tributaries, Chuckatuck Creek and its
tributaries, and N: ansemond River and its tributaries;

(4) In the Mobjack Bay and its tributaries above a line beginning at
& point of land on the south side of the mouth of Brown’s Bay, Gloucester
County; thence in a northeasterly direction across Mobjack Bay to a point
of land on the northwest side of the mouth of Pepper Creek in Mathews
County. This area, as described, is to include all of Mobjack Bay and its
tributaries from Brown’s Bay to Pepper Creek;

(5) In the James River and its tributaries above a line drawn from
Cooper’s Creek in Isle of Wight County on the south side of James River to
a line in a northeasterly direction across James River to the Newport News
municipal water tank located on Warwick Boulevard between 59th Street
and 60th Street in the city of Newport News;

(6) In the Corrotoman River above a line beginning at U. S. Coast
and Geodetic Triangulation Station Towles No. 2, located on Towles Point,
Lancaster County, thence north 81° 30’ east approximately 16,800 feet to
survey point “Orchard” located on Orchard Point in Lancaster County.
This line, as described, is to include all of Corrotoman River and its tribu-
taries from Towles Point to Orchard Point.

28.1-89. Export tax; disposition of funds; permit to carry, etc.,
oysters out of State——In addition to all other taxes imposed by law, there
shall be an export, or out-of-state tax of twenty cents per bushel imposed
on all oysters, including seed oysters, taken from any of the public oyster
grounds of this State and shipped unshucked from this State. A record
shall be kept on all out-of-state shipments. The provisions of this section
shall not be applicable to the sale of seed oysters to the Potomac River
Fisheries Commission.

All funds received or collected pursuant to this section shall be paid
into the State treasury to the credit of the Public Oyster Replenishment
Fund for the purpose of such fund.

It shall be unlawful for any person, firm or corporation to carry, or
attempt to carry, or to buy for the purpose of carrying out of this State
any size or kind of oysters taken from the natural rocks, beds or shoals
in the waters of this Commonwealth until he has first obtained for each
cargo a permit to do so from an inspector and has paid to the inspector the
required export, inspection and replenishment taxes with buyer’s report.

The permit shall state the name of the boat or license number of the
motor vehicle; the name and address of the owner and/or master of the
boat or owner and/or operator of the motor vehicle. The permit shall state
the name and address of the person, firm or corporation to whom the cargo
of oysters are to be delivered. The permit shall specify the number of
bushels and whether they are seed or shucking stock.

Before such permit shall be granted, the applicant shall certify, be-
fore an inspector, that the cargo will not be delivered or discharged to any
other person, firm or corporation.

§ 28.1-91. Oyster buyer’s license——Any person purchasing or buy-
ing oysters from any person catching or taking oysters from the public
rocks, beds or shoals shall have an annual oyster buyer’s license which has
been issued by the Commission. Said license fee shall be five dollars for
any person buying oysters which are to be planted, processed or marketed
in this State. The license fee shall be fifty dollars for any person buying
oysters from the catcher which are to be planted, processed or marketed
outside this State.

§ 28.1-108. Assignments of planting grounds to riparian owners.—
Any owner of land bordering on a body of water in the oyster rrowing
area of this State whose shore front measures at least one hundred five
feet at the low water mark, who has not had as much as one-half acre of
ground already assigned him on such front, or whose lease has terminated
and is not to be renewed, may make application for planting grounds to
the inspector for the district in which the land lies, who shall assign to
him such ground wherever such owner may designate in front of his land
between his highland property lines extended not exceeding in area one-
half acre, to be not less than one hundred five feet wide along the shore
and beginning at low watermark, extending out not more than two hun-
dred ten feet, or to the middle of the body of water, or te the middle of
the channel, whichever is the shorter distance; the same to be surveyed,
plotted, marked, assigned and recorded in aH respects as provided for
assignments to persons in § 28.1-109 of the Code of Virginia. There shall
be no rent due or collected on ground assigned pursuant to this section,
and such owner shall have the exclusive right to the use thereof for the
purpose of planting or gathering oysters and other shellfish. The assign-
ment made pursuant to this section shall pass with the transfer of the
adjacent highland to the subsequent owner of highland and cannot be
held separated from said highland.

If any portion of such waterfront be assigned to a riparian claimant
under this section, which at the time is occupied by others with oysters
actually planted thereon, the person eccupying the same shal] have
eighteen months in which to remove such oysters and such riparian
claimant shall pay all survey and assignment and recording charges in-
sais in connection with the transfer of said riparian oyster planting
ground.

This section shall, on and after July first, nineteen hundred and
sixty-two, be applicable in all counties and cities ef the State bordering
such bodies of water, except it shall not be applicable to riparian lands
located above the James River Bridge in the James River or its tributaries.
In any county or city in this State where more than one-half of ground
per water front tract has heretofore been assigned to a riparian owner,
after July first, nineteen hundred and sixty-two, said ground in excess of
one-half acre shall be deemed to be ground under a regular lease and
assignment, and not a riparian assignment.

This section, so far as the quantity of land to be assigned to and
held by riparian owners is concerned, shall not apply to the county of
Northampton, but section six of chapter two hundred and fifty-four, acts
eighteen hundred and eighty-three and eighteen hundred and eighty-four,
shall continue in force as to such county, but nothing herein contained
Shall be construed as authorizing a rental of a lesser amount per acre
than that provided by law for riparian owners in the above-named county
of the land assigned them as such riparian owners; provided. that nothing
In such section which restores to riparian owners in such county one
fourth of their respective waterfronts, suitable for planting oysters, shall
be so construed as to permit the owners of waterfronts to compel occu-
pants of such fronts to remove their oysters from any fourth of such
shores, if the residue of the shore be already in his, the landowner’s pos-
session, or be unoccupied.

Nothing in this section shall be construed to prevent the erection by
riparian landowners of wharves, landings or other structures as other-
wise permitted by law.

§ 28.1-116. Rights of owner to waters within lawful survey. —
If any creek, cove or inlet within the jurisdiction of this Commonwealth
makes into or runs through the lands of any person, is less than one hun-
dred yards in width at mean low water and is comprised within the limits
of his lawful survey, as defined in § 62-2, such person or other lawful oc-
cupant shall have the exclusive right to use such creek, cove or inlet for
sowing or planting oysters or other shellfish; provided, however, that in
the county of Mathews the owners or lawful occupants of land on both
sides of any creek, cove or inlet, except Horn Harbor and Milford Haven,
suitable for the planting of oysters, above the point where such creek, cove
or inlet is one hundred yards in width, shall have the exclusive right to
use such creek, cove or inlet for planting oysters therein, the right of the
owners or occupants of land on the opposite sides of such creek, cove or
inlet to extend to the middle of the channel, wherever that may be from
time to time. *

§ 28.1-119. Tax on handling bivalves. — (A) Tax graduated by
amount of oysters handled. — Every person, firm or corporation engaged
in the business of shucking or packing oysters in this State shall pay a
license tax for the privilege of transacting such business, to be graduated
by the amount of oysters * shucked or packed by him during the period
for which his license is granted.

(C) Shuckers and packers.—For every license to a person, firm or
corporation engaged in the business of shucking or packing oysters the
license taxes shall be graduated as follows: (1) For any number of gallons
under one thousand, a tax of three dollars; (2) for one thousand gallons
or over, up to ten thousand, a tax of eight dollars and twenty-five cents;
(3) for ten thousand gallons or over, up to twenty-five thousand, a tax
of fifteen dollars and seventy-five cents; (4) for twenty-five thousand
gallons or over, up to fifty thousand, a tax of thirty dollars and seventy-
five cents; (5) for fifty thousand gallons or over, up to one hundred
thousand, a tax of forty-six dollars; (6) for one hundred thousand gallons
or over, up to two hundred thousand, a tax of seventy-five dollars and
seventy-five cents; (7) for two hundred thousand gallons or over, a tax
of one hundred and fifty dollars and fifty cents.

(D) Reports required of licensees. — To ascertain the amount ef
oysters marketed it shall be the duty of such person, firm or corporation,
on the first day of January of each year, or within ten days thereafter,
to make report in writing, under oath, to the oyster inspector for the
district for which he was licensed, showing the amount of oysters actually
shucked or packed or sold in barrels by him during the next preceding
twelve months.

(E) Violation. — Each inspector shall report every oyster packer
who shall fail to comply with the requirements of this section. Any person,
firm or corporation violating the provision of this section, or making false
reports shall be guilty of a misdemeanor.

(F) Tax in lieu of other taxes on capital.—The sum imposed under
and by virtue of this section shall be in lieu of all taxes for State pur-
poses on the capital actually employed in such business. The word “cap-
ital” shall include moneys and credits actively used in carrying on the
business, including goods, wares and merchandise on hand, and all solvent
bonds, demands, and claims made and contracted in the business during
the preceding year. Real estate shall not be held to be capital, but shall be
assessed and taxed as other specific property.

(G) Other property listed and taxed.—All other property held by
such person, firm or corporation shall be listed and taxed as other property.

(H) Collection and disposition of license tax.—The sum required
by this section to be paid when the license is taken out shall be collected
in the manner that the amounts required to be paid for other licenses
under the oyster laws of the State are collected.

§ 28.1-124. Oysters to be culled as taken.—All oysters taken from
any public natural rocks, beds, or shoals in the waters of this State shall
be culled on their natural rocks, beds, or shoals as taken; and oysters
whose shells measure less than three inches in length, except those oysters
taken from Russ Rock and Little Carter’s Rock, in the Rappahannock
River, whose shells be not less than two and one-half inches in length, and
all shells shall be included in such culling, and replaced upon such rocks,
beds or shoals. If oysters from leased grounds and oysters from public
grounds are mixed in the same cargo on a boat or motor vehicle the entire
cargo shall be subject to cull under this section.

_ . The Commission shall have the authority to reduce the size or length
limitation of the oysters to be culled in any area except in the James River
where they have established seed beds pursuant to § 28.1-85 or wherever
they deem it advisable or necessary to conserve, protect or promote the
production of oysters.

All oysters shall be placed on the culling board as taken and culled
by hand to the inside of the boat. * All oysters and/or shells once passing
from the culling board to the inside of the boat shall be subject to inspec-
tion according to the provisions of this section and when found to include
oysters less than the size above prescribed * and/or shells, the entire cargo
shall be considered as not having been culled as taken, according to the
provisions of this section.

When small oysters are adhering so closely to the shell of the market-
able oysters as to render removal impossible without destroying the young
oyster, then it shall not be necessary to remove it.

In the inspection of oysters under this section, the law-enforcement
officer shall, with a shovel, take at least one bushel of oysters at random,
provided that the entire bushel shall be taken at one place in the pile of
oysters. If as many as one four-quart measure of undersized unshucked
oysters and/or shells are found per bushel inspected, it shall constitute a
violation of this section. In the inspection of seed oysters taken from the
James River seed area, or any other area designated as seed area by the
Marine Resources Commission *, if as many as one six quart measure of
shells are found per bushel inspected, it shall constitute a violation of
this section.

It shall be unlawful to have more than one-half gallon of shucked
oysters kept on board of a boat tonging on the public rocks.

Any violation of any provision of this section shall constitute a mis-
demeanor. Any person charged with violating any provision of this sec-
tion shall be required, by the officer making said charge, to scatter the en-
tire cargo of oysters on the public rocks under the supervision of an in-
spector and at the expense of the person charged with the violation. Pro-
vided that in lieu of throwing said cargo overboard the person charged
with said violation may post cash bond with the officer making the charge
in an amount approximately equal to the value of the entire load as de-
termined by the officer making the charge. The refusal to either dump
the oysters overboard or post a cash bond shall constitute a distinct and
separate offense from any other violation. A person who has posted a
cash bond who is acquitted shall be refunded said cash bond; if found
guilty said cash bond shall be forfeited and deposited to the credit of the
special oyster replenishment fund.

If a cash bond is posted by the person charged, the person charged
shall properly cull the entire cargo of oysters immediately after the in-
spector has found them to be in violation of this section and before they
can be sold, planted or disposed of by the person charged or by any other
person to prevent the marketing of illegal oysters and/or shells.

The aforesaid requirement to scatter the entire cargo of oysters on
the public rocks shall only apply to a cargo of oysters taken by any catcher
from the public oyster grounds and shall not apply to oysters which have
been purchased by a buyer and in the buyer’s possession.

§ 28.1-132. Penalty.—If any person take or catch oysters * with a
dredge, or scrape, or instrument other than ordinary or patent oyster
tongs, or by hand in any of the waters of the Commonwealth except as
provided by law, or regulations of the Commission, he shall be deemed
guilty of a felony, and upon conviction thereof shall be confined in the
penitentiary not less than one year, and fined not less than one hundred
nor more than one thousand dollars, either or both.

§ 28.1-1384. Dredging or scraping on private ground.—(1) When
and by whom dredging allowed; permit required.—It shall be lawful for
any resident of this State holding under legal assignment oyster-planting
ground of at least three acres in one tract or adjoining tracts and having
paid the rent therefor, to dredge or scrape the same at any time, except
on Sunday or at night; provided he obtain from the Marine Resources
Commission * a permit for each boat which is used to dredge or scrape
such specified private oyster ground. Such permit shall show the name of
the lessee and the name or number of the boat, date of issue and date of
expiration, which expiration date shall not be more than twelve months
from date of issue and may be renewed for like periods from time to time;
and provided, further, that the Commission may after a hearing refuse
to grant a permit or renew the same to dredge or scrape any oyster-
planting ground unless it be proved that the holder thereof has planted
seed oysters or shells thereon and is using said planting ground for the
cultivation of oysters and may refuse to grant said permit if it appears
to the satisfaction of the Commission at said hearing that the holder of
said ground is an habitual violator of the seafood laws; provided, further,
that applicant for said permit shall have the right of appeal from any
decision of the Commission * refusing to grant said permit as provided
in chapter two (§ 28.1-23 et seq.) of this title. The Commission shall
receive one dollar for each such permit issued.

(2) Dredging or dredging equipment on boat.—It shall be unlawful
for any person to have on board a boat, a dredge or equipment normally
used for dredging, unless he has a permit to dredge, or a license to dredge
and has said license or permit available for inspection on board of said

It shall be unlawful for any dredge or any equipment to be used in
dredging, approved by license or permit, to be carried or transported on
board a boat of the licensee or permittee, or his employee, except when
actually in use or going to or coming from the ground on which dredging
is permitted, or licensed to take place, or to and from one dock to another
dock for maintenance and repairs to such boat and/or equipment.

(3) Marking ground.—No person shall have or enjoy the privilege
hereinbefore granted of dredging or scraping his oyster-planting ground
unless he shall have first properly designated and marked the oyster lines
of his planting ground by placing prominent and fixed buoys or stakes
thereon, such buoys or stakes to be so many inches in diameter and to
extend so far above water as the Commission * or the Commissioner, may
direct, and the same shall be kept up and maintained so as to distinctly
mark the outer line or lines of such planting ground. In the event tt
appears to the inspector that such ground is not properly marked, he
may forthwith suspend the dredging permit until such time as the ground
1s properly marked. The buoys shall be painted white, and shall have the
initials of the person or firm whose property they are, placed upon them
near the top, in black letters, of not less than five inches in length. If
stakes are used there shall be a sign painted as prescribed for buoys
attached to each corner stake.

(4) Marking boats.—Such initials shall also be placed upon each side
of the prow of any boat or craft used or employed in dredging or scraping
such planting ground.

§ 28.1-137. Theft of oysters, clams, shells, etc._—If any person take,
steal or carry away, without permission of the owner, oysters, clams,
bedded or planted, oysters deposited by any person making up a cargo
for market, shells or seed planted for formation of oyster beds by the
State or any person, firm, or corporation, he shall be deemed guilty of the
larceny thereof.

After any person is convicted for any violation of taking oysters from
public ground, the Commission, without notice and hearing required by
§ 28.1-36, immediately shall revoke all existing licenses to take or catch
finfish or shellfish, issued to such person. No new licenses shall be issued
to such person for a minimum of one * month or a maximum of * two
years after such conviction in the discretion of the Commission.

§ 28.1-160. License tax for buying, marketing and shipping clams
or scallops; possession of oysters while taking clams or scallops.—(1)
Amount of tax.—Every person engaged * in the business of buying, mar-
keting and shipping scallops, clams and bivalves other than oysters shall
for such privilege, on or before January first of each year pay to the
inspector of the district in which such person does business, a license tax
of twenty-five dollars per year.

(2) Illegal possession of oysters.—If any person shall have in his
possession any oysters while taking or catching clams or scallops during
the season in which it is not lawful to take or catch oysters from the
natural rocks, beds, or shoals, he shall be prima facie guilty of violating
the law against taking or catching oysters therefrom during such season,
and upon conviction, the penalty shall be the same as for taking or catch-
ing oysters from the natural rocks, beds, or shoals, during the prohibited
season.