A brief description of the facts will assist readers about this latest battle for the shore. Plaintiff is an association of owners of condominiums located at the landward end of Commercial Wharf in Boston. Defendant is the owner of an inn and marina at the seaward end of that Wharf.
Plaintiff filed a lawsuit to enforce property use restrictions benefiting it and burdening the Defendant (regulating parking and deliveries, prohibiting use of Defendant’s facilities by commercial boats selling alcohol or allowing gambling, and limiting the number of “special events” to be hosted at the inn each year).
In response to the lawsuit, Defendant argued that the restrictions are void because they unduly restrict the public’s access and use of the Boston Harbor waterfront in violation of the public trust doctrine.
Readers already know the public trust doctrine protects the public’s rights to fish, fowl and navigate in tidelands. These important features of our shore are defined by state statute as “present and former submerged lands and tidal flats lying below the mean high water mark.” G.L. c. 91, § 1.
This case involves “Commonwealth tidelands” (as opposed to “private tidelands”). These are defined as “tidelands held by the commonwealth in trust for the benefit of the public or held by another party by license or grant of the commonwealth subject to an express or implied condition subsequent that it be used for a public purpose.” G.L. c. 91, § 1.
In rejecting the Defendant’s argument that the restrictions on use of its property violate the public trust doctrine, the Appeals Court made clear that litigation between private parties may not be used as a vessel to enforce public trust rights. Public trust rights may be enforced only by the Commonwealth and entities to which the state Legislature has delegated that enforcement authority.
The Legislature has delegated that enforcement authority to the Massachusetts Department of Environmental Protection (DEP) through the Chapter 91 licensing process.
The Appeals Court relied on precedent, namely “the Supreme Judicial Court’s consistent and strict enforcement of the express delegation requirement” to “reject the argument that the proper extent of public trust rights in a particular locus may be determined in private litigation such as the present case.”
Rather, the Court concluded that DEP already had weighed the conflict between private rights and public trust rights when it issued a Chapter 91 license to the Defendant’s predecessor owner. Critically, that license required the Defendant to “allow public access on foot to its pier, unless it is determined that [Defendant] ‘does not have the legal right to provide such access.’”
Consequently, the Appeals Court ruled that DEP’s “special role in this area” makes that agency responsible for “determin[ing] whether Boston Boat is currently using the locus in accordance with the license and, if not, how best to proceed in order to vindicate public rights.”
A practical lesson for the readership to take from this case is that a private party wishing to protect public trust rights in Commonwealth tidelands (whether challenging the issuance of, conditions imposed by, or compliance with a Chapter 91 license) must follow the appropriate channels at DEP rather than going straight to court.
On the other hand, this case was only about Commonwealth tidelands. The public trust doctrine also protects private tidelands, most rivers, and Great Ponds; Chapter 91 governs work and activities on all these resources; the so-called Reserved Public Rights impose obligations on even private tidelands; and Article 97 of the Amendments to the State Constitution protects all public lands, not just the seashore, taken or acquired by state, county or local government for natural resources purposes including conservation and recreation.
As a result, in addition to remedies available through DEP, court litigation indeed can be the tool of choice to adjudicate or vindicate these various rights and duties.
