Aqua King Fishery, LLC v. Conservation Commission of Provincetown
AC 16-P-1366
Mass. App. Ct.Jun 16, 2017Background
- Aqua King Fishery, LLC owned the commercial vessel Sentinel and used hydraulic dredge gear to harvest sea clams near Provincetown.
- Provincetown Conservation Commission issued an enforcement order finding unauthorized hydraulic dredging that altered land under the ocean and nearshore resource areas, citing the town wetlands by-law (Article 8) and the Massachusetts Wetlands Protection Act (G. L. c. 131, § 40).
- Aqua King sought review via certiorari in Superior Court, arguing municipal regulation and the WPA application were preempted or displaced by the Division of Marine Fisheries (DMF) authority over shellfish fisheries.
- The trial judge denied in part Aqua King’s motion for judgment on the pleadings and allowed part of the commission’s counterclaim under the WPA; the commission sought the maximum civil penalty ($25,000) but the judge deferred penalty determination.
- The Appeals Court reviewed the matter under the narrow certiorari standard, considering statutory text, delegation to DMF, DEP/DMF roles, and record evidence of dredge impacts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Provincetown by-law (Article 8) can bar hydraulic dredging for sea clams | By-law valid; commission may regulate dredging in its wetlands jurisdiction | By-law invalid because G. L. c. 130 § 52 excludes sea clams/quahogs from municipal regulation, vesting DMF control | By-law unenforceable as applied: § 52’s exclusion of sea clams/quahogs removes towns’ authority to regulate commercial harvesting of those species |
| Whether the WPA applies to hydraulic dredge clamming | DMF controls fisheries, so WPA (DEP realm) cannot regulate commercial hydraulic dredging | WPA applies; dredging (even temporary deepening) falls within WPA definitions and commission enforcement authority | WPA can be applied to Aqua King’s hydraulic clamming; commission’s order was supported by substantial evidence and not arbitrary or capricious |
| Whether the commission’s factual finding of dredge impact was arbitrary/capricious | Application of WPA to fishing arbitrary; commission lacked sufficient basis | Record (seafloor scans showing trenches) supports findings of temporary deepening/alteration | Commission’s factual determinations sustained; reasonable basis existed in record |
| Whether a civil penalty should be imposed under G. L. c. 131, § 40 | (Aqua King) challenged liability and propriety of penalty | Commission sought up to $25,000 per violation | Remanded: penalty issue vacated without prejudice so judge can consider penalty after commission specifies remediation and timeline |
Key Cases Cited
- DiMasi v. State Bd. of Retirement, 474 Mass. 194 (2016) (certiorari standard: correct substantial legal error affecting material rights)
- Boston Gas Co. v. Somerville, 420 Mass. 702 (1995) (municipal bylaws cannot conflict with state law)
- Skawski v. Greenfield Investors Property Dev. LLC, 473 Mass. 580 (2016) (expressio unius canon supports exclusionary statutory interpretation)
- Commonwealth v. Paasche, 391 Mass. 18 (1984) (interpreting § 52 as eliminating municipal regulation of commercial sea clam harvest)
- T.D.J. Dev. Corp. v. Conservation Commn. of N. Andover, 36 Mass. App. Ct. 124 (1994) (standard for arbitrary and capricious review of conservation decisions)
- Cotter v. Chelsea, 329 Mass. 314 (1952) (reasonable-basis test for administrative decisions)