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Virginia Marine Resources Commission v. Insley

Court of Appeals of Virginia

April 7, 2015

VIRGINIA MARINE RESOURCES COMMISSION
v.
DARRELL W. INSLEY; VIRGINIA MARINE RESOURCES COMMISSION
v.
DENNIS W. PARKER

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY. R. Bruce Long, Judge.

Matthew R. Hull, Assistant Attorney General (Mark R. Herring, Attorney General; John W. Daniel, II, Deputy Attorney General; Lynne C. Rhode, Senior Assistant Attorney General, on briefs), for appellant.

Ann K. Sullivan (Melissa M. Picco; Sullivan Law Group, PLC, on brief), for appellees.[1]

Present: Judges Humphreys, Beales and Decker. OPINION BY JUDGE ROBERT J. HUMPHREYS.

OPINION

Page 210

[64 Va.App. 572] ROBERT J. HUMPHREYS, JUDGE

The Virginia Marine Resources Commission (" VMRC" ) appeals the September 8, 2014 decision of the Gloucester County Circuit Court (the " circuit court" ). The circuit court reversed VMRC's decision to revoke the licenses and fishing privileges of Darrell Insley (" Insley" ) and Dennis Parker (" Parker" ), and remanded the case back to VMRC to reinstate Insley's and Parker's licenses and privileges. VMRC's single assignment of error is that the circuit court erred by setting aside VMRC's decision because it was supported by substantial evidence.

Parker and Insley (collectively " appellees" ) submit a cross assignment of error asserting that the circuit court erred in failing to award them attorney's fees because they substantially prevailed below and VMRC's position was not substantially justified.

I. Background

Parker and Insley were issued several summonses by VMRC for violating state fishing laws.[2] They were both convicted on all

Page 211

charges in general district court. Neither Parker nor Insley appealed any of their convictions. On March 24, 2014, VMRC held a hearing to consider whether to [64 Va.App. 573] revoke Parker's and Insley's fishing licenses and privileges pursuant to Code § 28.2-232 because of their recent convictions. At the hearing, VMRC heard evidence of Parker's four convictions stemming from two separate incidents, and Insley's three convictions stemming from three separate incidents. Parker and Insley each were given an opportunity to present evidence and argument, but neither disputed that they were in fact convicted of those violations. VMRC unanimously decided to revoke their fishing licenses and privileges for one year--beginning March 25, 2014 and ending March 25, 2015.

Parker and Insley appealed the VMRC's decision to the circuit court. On August 22, 2014, the circuit court reversed the VMRC's decision, holding that it did not " think the evidence here substantially supports the action that the VMRC took" and that " the action is too draconian given the nature of the violations." Concluding that the evidence did not support a finding that Parker's or Insley's convictions rose to a " course of conduct," the circuit court found that the evidence therefore did not support a finding that the licenses and privileges ought to have been revoked. On September 8, 2014, the circuit court entered two ...


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