COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
EDWARD H. BENDER
MEMORANDUM OPINION *
v. Record No. 1479-01-1 PER CURIAM
OCTOBER 30, 2001
VIRGINIA MARINE RESOURCES COMMISSION
FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Glen A. Tyler, Judge
(Edward H. Bender, pro se, on briefs).
(Randolph A. Beales, Attorney General;
Roger L. Chaffe, Senior Assistant Attorney
General; Carl Josephson, Assistant Attorney
General, on brief), for appellee.
Edward H. Bender appeals the ruling of the Circuit Court of
Northampton County sustaining the Virginia Marine Resources
Commission's (VMRC) demurrer and dismissing his petition for
appeal. On appeal, he presents four questions but only three
distinct issues. Bender contends the circuit court erred in 1)
holding preamble language recorded only in VMRC's minute book did
not rescind the entire regulation in issue; 2) finding Bender's
appeal of provisions of regulations not amended by VMRC on October
26, 2000 was not timely under Rule 2A:2, because his notice of
appeal was filed over thirty days after VMRC's adoption of the
provisions; and 3) sustaining VMRC's demurrer and dismissing
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Bender's appeal. Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27. 1
Background
On October 26, 2000, VMRC amended the language of a
subsection of the regulations governing the fishery management
plan for striped bass. See 4 VAC 20-252-10 et seq. The
amendments became effective October 30, 2000. Although only one
subsection of the regulation was altered, the preamble in the
October 26, 2000 written version of the regulation as recorded
in VMRC's minute book states: "This regulation rescinds
previous Regulation 4 Va 20-252-10 ET SEQ." However, the
preamble is not part of the regulation and does not appear in
the administrative code itself.
Bender, seeking judicial review of the fishery management
plan for striped bass, filed his notice of appeal with VMRC's
agency secretary on November 27, 2000. In his appeal, Bender
challenged portions of the regulations which were not amended on
October 26, 2000.
1
Appellant's motion for remand is denied.
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Analysis
I. and II.
Bender argues the preamble's language had the effect of
repealing and then reenacting the entire regulation, thereby
making the effective date of the regulation October 30, 2000,
and allowing him thirty days from that date to appeal any
portion of 4 VAC 20-252-10 et seq. The administrative code does
not include the preamble and indicates that only 4 VAC
20-252-30.H was amended effective October 30, 2000. See
"Historical Notes" and "Effect of Amendment" under 4 VAC
20-252-30. The trial court correctly held that the preamble did
not change the effective date of the regulation.
Code § 9-6.14:16(A) provides that the right of a party
seeking review of an agency action shall be "in the manner
provided by the rules of the Supreme Court of Virginia." Rule
2A:2 requires that a notice of appeal be filed within thirty
days after the adoption of a regulation.
In his notice of appeal, Bender challenged the language of
4 VAC 20-252-30.I, 4 VAC 20-252-120, 4 VAC 20-252-130, and 4 VAC
20-252-160. These sections of the regulations were not amended
at VMRC's October 26, 2000 meeting. Consequently, Bender's
appeal of these provisions was, as the circuit court correctly
noted in its order, untimely.
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III.
The trial court sustained VMRC's demurrer, finding Bender's
appeal was untimely for all but the amended language of 4 VAC
20-252-30.H. The amendments to that subsection added to the
number of days when commercial hook-and-line fishing is
permitted within 300 feet of a bridge or similar structure. The
new language also prohibits commercial hook-and-line fishing
within 300 feet of such structures during Thanksgiving Day and
the following day. The circuit court noted in its order that
appellant failed in his petition for appeal to demonstrate that
he was affected by the amendments, as required by Code
§ 9-6.14:16(A); and failed to state reasons why the amendments
were deemed to be unlawful, as required by Rule 2A:4. In his
brief, Bender failed to develop this argument.
Since this argument was not fully developed
in the appellant's brief, we need not
address this question. Statements
unsupported by argument, authority, or
citations to the record do not merit
appellate consideration. We will not search
the record for errors in order to interpret
the appellant's contention and correct
deficiencies in a brief.
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
(1992) (citations omitted). Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.
Affirmed.
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