Heard: April 13, 2017.
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.
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.
J. Corbo for the defendant.
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 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. 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).
cross appeal, the commission, Provincetown's local
authority enforcing the WPA and regulations of the Department
of 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 bylaw was unenforceable, and (2)
denied its request for imposition of a $25, 000 fine, the
maximum penalty allowed under the WPA.
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. 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 the general public.'" DiMasi v.
State Bd. of Retirement, 474 Mass. 194, 199 (2016)
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) .
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,  from the defined category of
"shellfish" that towns are authorized to regulate.
§ 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."
we discern further support for this interpretation from the
remainder of § 52, sixth par., which, pending the
approval of the director of DMF,  allows for regional
management of ...