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16-P-1366 Appeals Court
AQUA KING FISHERY, LLC vs. CONSERVATION COMMISSION OF
PROVINCETOWN.
No. 16-P-1366.
Barnstable. April 13, 2017. - June 16, 2017.
Present: Kafker, C.J., Grainger, & Kinder, JJ.
Shellfish. Municipal Corporations, By-laws and ordinances,
Conservation commission, Shellfish. Wetlands Protection
Act. Fisheries.
Civil action commenced in the Superior Court Department on
February 13, 2015.
Motions for judgment on the pleadings and a special motion
to dismiss counterclaims were heard by Gary A Nickerson, J.
Stephen M. Ouellette for the plaintiff.
Gregg J. Corbo for the defendant.
GRAINGER, J. Aqua King Fishery, LLC (Aqua King), the owner
of the commercial fishing vessel Sentinel, appeals from a
judgment of the Superior Court entered pursuant to an order
denying, in part, its motion for judgment on the pleadings. At
issue is Aqua King's failure to obtain a permit from the
2
conservation commission of Provincetown (commission) for the use
of hydraulic dredge fishing gear in its commercial sea clam
fishing operation on areas of the ocean floor near
Provincetown's shore. Aqua King contends that the activity at
issue is controlled by the Division of Marine Fisheries (DMF)
and is thus exempt from municipal and other State regulations.
Aqua King consequently sought to reverse the enforcement order
issued by the commission.1 Aqua King also appeals from the
judge's partial allowance of the commission's cross motion for
judgment on the pleadings with respect to its counterclaim
based on an asserted violation of § 40 of the Wetlands
Protection Act, G. L. c. 131 (WPA).2
In its cross appeal, the commission, Provincetown's local
authority enforcing the WPA and regulations of the Department of
1
After a public hearing, the commission entered an
enforcement order in which it found that the "SENTINEL has
dredged a resource area, to wit: land under the ocean and near
shore areas, by use of hydraulic dredge, resulting in alteration
of the resource area. . . . The activity has been conducted
without proper filings and approvals of the Conservation
Commission in violation of the Provincetown Wetlands Bylaw,
Provincetown Conservation Commission Regulations, Article 8, the
Massachusetts Wetlands Protection Act, [G. L.] c. 131, § 40 and
regulations of the Massachusetts Department of Environmental
Protection, 310 [Code Mass. Regs. §§] 10.02(2)(a) and 10.25.
The specific violations occurred twice on December 14, 2014."
2
Aqua King identifies itself as a "reluctant appellant"
because it has ceased its fishing activities. Although the
commission filed its notice of appeal first, Aqua King is
nonetheless identified as the appellant pursuant to Mass.R.A.P.
16 (i), 365 Mass. 860 (1974).
3
Environmental Protection (DEP), appeals from the judge's rulings
that (1) denied its motion for judgment on the pleadings insofar
as he concluded that article 8 of the Provincetown wetlands by-
law was unenforceable, and (2) denied its request for imposition
of a $25,000 fine, the maximum penalty allowed under the WPA.
We address the judge's rulings in the context of the
limited scope of judicial review applicable to an agency
decision challenged, as is the case here, by a petition for
certiorari pursuant to G. L. c. 249, § 4.3 Judicial review of an
agency decision in the nature of certiorari "allows a court to
'correct only a substantial error of law, evidenced by the
record, which adversely affects a material right of the
plaintiff. . . . In its review, the court may rectify only those
errors of law which have resulted in manifest injustice to the
plaintiff or which have adversely affected the real interests of
3
Aqua King's only avenue of appeal of the town's by-law
determination was by way of G. L. c. 249, § 4. See FIC Homes of
Blackstone, Inc. v. Conservation Commn. of Blackstone, 41 Mass.
App. Ct. 681, 684–685 (1996). However, the appeal of the town's
application of the WPA to Aqua King's conduct should have been
brought pursuant to G. L. c. 30A, § 14. This case thus
presented essentially identical administrative rulings subject
to separate bases for appeal. In any event, the parties did not
raise this issue, and our cases recognize that the standard of
appellate review under G. L. c. 30A, § 14, and G. L. c. 249,
§ 4, is essentially the same. See Lovequist v. Conservation
Commn. of Dennis, 379 Mass. 7, 17–18 (1979); FIC Homes of
Blackstone, Inc., supra; Conservation Commn. of Falmouth v.
Pacheco, 49 Mass. App. Ct. 737, 742 (2000).
4
the general public.'" DiMasi v. State Bd. of Retirement, 474
Mass. 194, 199 (2016) (citation omitted).
Town by-law. The commission argues that Aqua King was
required to comply with Provincetown's by-law because it is
reasonably related to the commission's statutory responsibility
of protecting wetland resource areas. Article 8.1 of the by-law
provides, "No hydraulic dredging shall occur within the waters
under the jurisdiction of the Provincetown Conservation
Commission without a proper filing before the Conservation
Commission." However, "[m]unicipalities may not adopt bylaws or
ordinances that are inconsistent with State laws." Boston Gas
Co. v. Somerville, 420 Mass. 702, 703 (1995). Mad Maxine's
Watersports, Inc. v. Harbormaster of Provincetown, 67 Mass. App.
Ct. 804, 807 (2006).
The language of G. L. c. 130, § 52, first par., as inserted
by St. 1941, c. 598, § 1, explicitly authorizes towns to
"control, regulate or prohibit the taking of eels and any or all
kinds of shellfish and sea worms" and "make any regulations not
contrary to law in regard to said fisheries." Section 52, sixth
par., as inserted by St. 1982, c. 363, excludes two specific
species of shellfish, sea clams and ocean quahogs,4 from the
4
Sea clams (spilosa solidissima) and ocean quahogs (artica
islandica).
5
defined category of "shellfish" that towns are authorized to
regulate.
While § 52 does not contain an overt prohibition against
towns' regulation of sea clam and quahog harvesting, we cannot
overlook the explicit exclusion of these two organisms from the
language otherwise conferring authority to towns over "any and
all kinds of shellfish." We consider the Legislature to have
added the exception in 1982 to effect the common meaning of such
a construction, namely to withhold authority. Expressio unius
est exclusio alterius (to express one element is to exclude
others). Skawski v. Greenfield Investors Property Dev. LLC, 473
Mass. 580, 588 (2016). As was stated in Commonwealth v.
Paasche, 391 Mass. 18, 20 (1984), "section 52 now . . .
expressly eliminates the right of municipalities to regulate the
commercial harvesting of sea clams."
Finally, we discern further support for this interpretation
from the remainder of § 52, sixth par., which, pending the
approval of the director of DMF,5 allows for regional management
of commercial harvesting of the two excepted shellfish species.6
5
"'Director', the director of the division of marine
fisheries." G. L. c. 130, § 1, as inserted by St. 1941, c. 598,
§ 1.
6
The relevant language provides "that the director may
authorize the commercial management of sea clams and ocean
quahogs by regional management of cities and towns, if in his
opinion regional management will be in the best interests of the
6
The language of the by-law, prohibiting hydraulic dredging
"without a proper filing before the [commission]," purports to
regulate the commercial management of sea clams notwithstanding
the contrary effect of the provisions cited above. We therefore
conclude that the commission's claim to exercise authority under
the by-law is "a substantial error of law, evidenced by the
record, which adversely affects a material right of the
plaintiff," and hence is invalid. DiMasi, 474 Mass. at 199,
quoting from Carney v. Springfield, 403 Mass. 604, 605 (1988).
Wetlands Protection Act. The commission also issued the
order in its role as a local enforcement agency under the WPA.
Aqua King argues that commercial fishing, even with the use of a
hydraulic dredge, is controlled by the DMF and thus cannot be
subject to the WPA, as that statute falls within the purview of
the DEP.7
"In the absence of explicit legislative commands to the
contrary, we construe statutes to harmonize and not to undercut
commonwealth." Provincetown neither obtained the director's
approval nor enacted the by-law as part of a regional plan.
7
The DMF did not participate in this action, despite
notification to the Attorney General's office of the pendency of
these proceedings. The DMF has taken no position on the
validity or applicability of the WPA dredging regulations to
hydraulic dredging for the purposes of harvesting surf clams.
The DEP also did not participate in these proceedings, and
we do not have the DEP's interpretation of its regulations
before us.
7
each other." Burbank Apartments Tenant Assn. v. Kargman, 474
Mass. 107, 124–125 (2016) (quotation omitted). Pursuant to
G. L. c. 130, § 17(10), the DMF may regulate marine fisheries
resources, notwithstanding any contrary provision of law. The
applicable DMF regulations prohibited, and continue to prohibit,
surf clam dredging at certain shallow depths during specified
times of the year. See 322 Code Mass. Regs. § 6.08(2) (1993).8
However, nothing in the regulations prohibits further regulation
by other authorities, including the commission, affecting other
unspecified areas or times of the year. See G. L. c. 131, § 40,
as inserted by St. 1990, c. 388, § 1 (commission "may issue
enforcement orders directing compliance with this section and
may undertake any other enforcement action authorized by law").
Dredging without filing a notice of intent (NOI) and
without receiving and complying with an order of conditions is
expressly prohibited by the WPA. G. L. c. 131, § 40. Although
there are exceptions to the requirement for filing an NOI,9
commercial fishing is not one of them. Aqua King argues that
8
We assume that "surf" clams and "sea" clams are idiomatic
variations referring to the same organism (spilosa solidissima).
The difference, if any, does not affect our analysis.
9
See G. L. c. 131, § 40, twenty-seventh par.; 310 Code
Mass. Regs. § 10.02(2) (2014).
8
the term "dredge" as defined in similar statutes10 shows
legislative intent that hydraulic dredge fishing was not meant
to be regulated by the WPA. However, the express definition of
the term "dredge," as provided by the DEP, includes even a
slight temporary deepening of the ocean floor. See 310 Code
Mass. Regs. § 10.04 (2014) ("[d]redge means to deepen, widen or
excavate, either temporarily or permanently, land below the mean
high tide level in coastal waters . . .").
Aqua King also contends that even if application of the WPA
to its fishing activities is jurisdictionally proper, the
commission's decision to do so was arbitrary and capricious
under the circumstances, and therefore must be invalid.11
We conclude that application of the WPA to Aqua King's method of
hydraulic clamming was supported by substantial evidence and was
neither arbitrary nor capricious.
Ample evidence in the record supports the commission's
conclusion that Aqua King's dredging technique causes a
10
See G. L. c. 91, § 54 (dumping in tide waters); G. L.
c. 184, § 31 (conservation restrictions on real property).
11
Aqua King further argues that the commission has no
jurisdiction over the area where Aqua King conducted its
fishing. However, jurisdiction over the area subject to this
litigation was delegated by the DEP to the commission through
the WPA, giving it authority to regulate nearshore areas of land
under the ocean to the point where "the land is . . . 40 feet
below the level of the ocean at mean low water for
Provincetown's land in Cape Cod Bay." 310 Code Mass. Regs.
§ 10.25(2) (2014).
9
temporary deepening of the ocean floor within nearshore waters;
a scan of the ocean floor found trenches some one to two feet in
depth and six to eight feet in width. In sum, there was a
reasonable basis for the commission's decision. See T.D.J. Dev.
Corp. v. Conservation Commn. of N. Andover, 36 Mass. App. Ct.
124, 128 (1994), quoting from Cotter v. Chelsea, 329 Mass. 314,
318 (1952) ("A decision is not arbitrary and capricious unless
there is no ground which 'reasonable men might deem proper' to
support it").
Civil penalty. The commission argues that the judge erred
in denying its request for the court to impose a civil penalty
against Aqua King for its WPA violation.12 We do not view the
judge's order on this claim as a denial with prejudice. The
judge noted in his decision on the cross motions for judgment on
the pleadings that, at that particular time, the commission had
proposed neither remediation measures nor a timeline for their
implementation. Rather, the commission indicated that these
specifics were "TBD." Accordingly, the matter is remanded for
the judge to rule on the request for the imposition of a civil
12
The parties have not objected to a resolution of the
penalty issue in an "on the record" proceeding reviewing the
issuance of an enforcement order. That question therefore is
not before us.
10
penalty13 once the commission has made the requisite
determinations under the WPA.
Conclusion. We vacate that portion of the judgment denying
count III of the defendant's counterclaim for the imposition of
a civil penalty, and that matter is remanded for further
proceedings consistent with this opinion. In all remaining
respects, the judgment is affirmed.
So ordered.
13
The statute provides in relevant part: "Whoever violates
any provision of this section. . . . shall be subject to a civil
penalty not to exceed twenty-five thousand dollars for each
violation." G. L. c. 131, § 40, as amended by St. 1990, c. 388,
§ 3.