Moot v. Department of Environmental Protection

456 Mass. 309
CourtMassachusetts Supreme Judicial Court
DecidedMarch 12, 2010
StatusPublished
Cited by16 cases

This text of 456 Mass. 309 (Moot v. Department of Environmental Protection) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moot v. Department of Environmental Protection, 456 Mass. 309 (Mass. 2010).

Opinion

Marshall, C.J.

In Moot v. Department of Envtl. Protection, 448 Mass. 340 (2007) (Moot), we concluded that a regulation promulgated by the Department of Environmental Protection (department) exempting landlocked tidelands from the licensing requirements of G. L. c. 91, the waterways statute, exceeded the department’s authority and was thus invalid. The basis for our decision was that by exempting landlocked tidelands from the licensing requirements of G. L. c. 91, the department “relinquished its obligation to ensure that all nonwater-dependent uses of filled tidelands serve a ‘proper public purpose,’ as the Legislature has mandated.” Moot, supra at 352. In the course of reaching that conclusion, we noted that any such relinquishment could come only from the Legislature. Id. at 352-353.

At issue was a decision by the department that exempted the construction of a multiuse project by the defendants North Point Cambridge Land Company, LLC; East Street, Inc., doing business as Water Street Company; and Boston and Maine Corporation (collectively, North Point) from the licensing requirements of G. L. c. 91. Id. at 341. Our decision reversed a Superior Court decision that affirmed the department’s decision of negative applicability of G. L. c. 91, on the basis that the project site is located on landlocked tidelands. Id. at 345. Our decision also directed that judgment should enter in the Superior Court remanding the case to the department for further proceedings. Id. at 353. On request by the defendants, we later issued a stay of the entry of judgment after rescript in the Superior Court to permit the Legislature to take any action it might deem appropriate in light of our opinion.

In direct response to our opinion, the Legislature enacted “An Act relative to the licensing requirements for certain tidelands” (act), the purpose of which “is to exempt structures, uses and activities within landlocked tidelands from licensing [311]*311under chapter 91 of the General Laws.” St. 2007, c. 168, § 1. Thereafter, the plaintiff sought relief from judgment in the Superior Court, asking the judge to find that the act exceeded the Legislature’s authority and that the provisions of a 1962 license relevant to the North Point project site are valid and enforceable.3 A Superior Court judge denied the plaintiff’s motion and affirmed the underlying decision of the department exempting the project from the licensing requirements of G. L. c. 91. The plaintiff appealed. We granted the plaintiff’s application for direct appellate review and now affirm.4

1. Background. We need not reiterate here the details of the North Point project, the project site, or the relevant provisions and purposes of G. L. c. 91, which are fully set forth in Moot. Instead, we turn directly to the act, the purpose of which “is to exempt structures, uses and activities within landlocked tidelands” from the licensing requirements of G. L. c. 91. St. 2007, c. 168, § 1. To effect this purpose, the act amended G. L. c. 91 by, among other things, specifically adding a provision to § 18 stating, “No license shall be required under this chapter for fill on landlocked tidelands, or for uses or structures within landlocked tidelands.” St. 2007, c. 168, § 6. The act also amended the provision in § 18 requiring a public hearing “on any license application for non-water dependent use of tidelands” such that no public hearing is now necessary for nonwater dependent uses of landlocked tidelands.5 See St. 2007, c. 168, § 7. Furthermore, the act provides that decisions made pursuant to the regulatory exemption that we held invalid in Moot are to be considered valid “as if th[e] act [312]*312had been in effect when such . . . determinations of applicability” of the regulation were issued. St. 2007, c. 168, § 10.6

The act also creates a new procedure for “public benefit review” by the Secretary of the Executive Office of Energy and Environmental Affairs (Secretary). Section 18B, a new section of G. L. c. 91, provides that the Secretary “shall conduct and complete a public benefit review for any proposed project” that is located on landlocked tidelands, and where the proposed project is required to file an environmental impact report pursuant to the Massachusetts Environmental Policy Act, G. L. c. 30, §§ 62-621 (MEPA). St. 2007, c. 168, § 8. Furthermore, the Secretary “may” conduct a public benefit review for any proposed project located on landlocked tidelands that is required to file an environmental notification form. Id. Pursuant to the regulations promulgated by the department relevant to the public benefit determination, the Secretary, “[i]n weighing the adequacy of the proposed public benefit, . . . shall place particular emphasis on the benefit to the public trust rights in tidelands.” 301 Code Mass. Regs. § 13.04(3) (2008). The regulations further provide that the department “shall incorporate the public benefit determination. . . in its official record of the chapter 91 license,” and that the Secretary’s determination “shall not supersede, eliminate, or in any way impair the Department’s exercise of its powers under chapter 91.” 301 Code Mass. Regs. § 13.05 (2008).

Finally, the act added a new section to MEPA. St. 2007, c. 168, § 3. That section, G. L. c. 30, § 621, requires a person proposing a new use or structure, or modification of an existing use or structure, within landlocked tidelands who is required to file an environmental notification form pursuant to G. L. c. 30, [313]*313§ 62A, to include “an explanation of the project’s impact on the public’s right to access, use and enjoy tidelands that are protected by chapter 91, and identify measures to avoid, minimize, or mitigate any adverse impact on such rights.” The section further provides that “[a]ny measures identified by the secretary . . . shall be set forth in a certificate on the environmental notification form or a certificate on the environmental impact report, if the latter is applicable,” and requires the proponent of the project to notify the department of the work and to provide the certificate to the department. Id. Additionally, the project proponent “shall comply with all obligations set forth in the certificate . . . , and the department shall have the authority to enforce such conditions.” Id.

2. Discussion. The parties disagree as to the effect of the act. The plaintiff argues that the act exceeds the Legislature’s authority because it effectively extinguishes and relinquishes public trust rights in landlocked tidelands without making the necessary explicit findings outlined by this court in Opinions of the Justices, 383 Mass. 895 (1981). The defendants, on the other hand, argue that the act does not extinguish and relinquish public trust rights in landlocked tidelands but rather exempts landlocked tidelands from the licensing requirements of G. L. c. 91. Alternatively, the defendants argue that the act does make the necessary findings to extinguish and relinquish those rights. Our review of legislative enactments is limited. See Merriam v. Secretary of the Commonwealth, 375 Mass. 246, 254-255 (1978) (discussing “limited scope of judicial review of legislative acts”). Although we are not unsympathetic to the plaintiff’s view, we ultimately agree with the defendants that the act does not extinguish and relinquish public trust rights in landlocked tidelands.7

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Bluebook (online)
456 Mass. 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moot-v-department-of-environmental-protection-mass-2010.