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Aqua King Fishery, LLC v. Conservation Commission of Provincetown

Appeals Court of Massachusetts, Barnstable

June 16, 2017

AQUA KING FISHERY, LLC
v.
CONSERVATION COMMISSION OF PROVINCETOWN.

          Heard: April 13, 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 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 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.

         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 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 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 ...


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