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16-P-1366                                             Appeals Court

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


                             No. 16-P-1366.

        Barnstable.         April 13, 2017. - June 16, 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
                                                                   2


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


     1
       After a public hearing, the commission entered an
enforcement order in which it found that the "SENTINEL has
dredged a resource area, to wit: land under the ocean and near
shore areas, by use of hydraulic dredge, resulting in alteration
of the resource area. . . . The activity has been conducted
without proper filings and approvals of the Conservation
Commission in violation of the Provincetown Wetlands Bylaw,
Provincetown Conservation Commission Regulations, Article 8, the
Massachusetts Wetlands Protection Act, [G. L.] c. 131, § 40 and
regulations of the Massachusetts Department of Environmental
Protection, 310 [Code Mass. Regs. §§] 10.02(2)(a) and 10.25.
The specific violations occurred twice on December 14, 2014."
     2
       Aqua King identifies itself as a "reluctant appellant"
because it has ceased its fishing activities. Although the
commission filed its notice of appeal first, Aqua King is
nonetheless identified as the appellant pursuant to Mass.R.A.P.
16 (i), 365 Mass. 860 (1974).
                                                                   3


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 by-

law 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




     3
      Aqua King's only avenue of appeal of the town's by-law
determination was by way of G. L. c. 249, § 4. See FIC Homes of
Blackstone, Inc. v. Conservation Commn. of Blackstone, 41 Mass.
App. Ct. 681, 684–685 (1996). However, the appeal of the town's
application of the WPA to Aqua King's conduct should have been
brought pursuant to G. L. c. 30A, § 14. This case thus
presented essentially identical administrative rulings subject
to separate bases for appeal. In any event, the parties did not
raise this issue, and our cases recognize that the standard of
appellate review under G. L. c. 30A, § 14, and G. L. c. 249,
§ 4, is essentially the same. See Lovequist v. Conservation
Commn. of Dennis, 379 Mass. 7, 17–18 (1979); FIC Homes of
Blackstone, Inc., supra; Conservation Commn. of Falmouth v.
Pacheco, 49 Mass. App. Ct. 737, 742 (2000).
                                                                   4


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



     4
       Sea clams (spilosa solidissima) and ocean quahogs (artica
islandica).
                                                                   5


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 commercial harvesting of the two excepted shellfish species.6


     5
       "'Director', the director of the division of marine
fisheries." G. L. c. 130, § 1, as inserted by St. 1941, c. 598,
§ 1.
     6
       The relevant language provides "that the director may
authorize the commercial management of sea clams and ocean
quahogs by regional management of cities and towns, if in his
opinion regional management will be in the best interests of the
                                                                   6


     The language of the by-law, prohibiting hydraulic dredging

"without a proper filing before the [commission]," purports to

regulate the commercial management of sea clams notwithstanding

the contrary effect of the provisions cited above.   We therefore

conclude that the commission's claim to exercise authority under

the by-law is "a substantial error of law, evidenced by the

record, which adversely affects a material right of the

plaintiff," and hence is invalid.   DiMasi, 474 Mass. at 199,

quoting from Carney v. Springfield, 403 Mass. 604, 605 (1988).

     Wetlands Protection Act.   The commission also issued the

order in its role as a local enforcement agency under the WPA.

Aqua King argues that commercial fishing, even with the use of a

hydraulic dredge, is controlled by the DMF and thus cannot be

subject to the WPA, as that statute falls within the purview of

the DEP.7

     "In the absence of explicit legislative commands to the

contrary, we construe statutes to harmonize and not to undercut



commonwealth." Provincetown neither obtained the director's
approval nor enacted the by-law as part of a regional plan.
     7
       The DMF did not participate in this action, despite
notification to the Attorney General's office of the pendency of
these proceedings. The DMF has taken no position on the
validity or applicability of the WPA dredging regulations to
hydraulic dredging for the purposes of harvesting surf clams.

     The DEP also did not participate in these proceedings, and
we do not have the DEP's interpretation of its regulations
before us.
                                                                      7


each other."   Burbank Apartments Tenant Assn. v. Kargman, 474

Mass. 107, 124–125 (2016) (quotation omitted).    Pursuant to

G. L. c. 130, § 17(10), the DMF may regulate marine fisheries

resources, notwithstanding any contrary provision of law.       The

applicable DMF regulations prohibited, and continue to prohibit,

surf clam dredging at certain shallow depths during specified

times of the year.   See 322 Code Mass. Regs. § 6.08(2) (1993).8

However, nothing in the regulations prohibits further regulation

by other authorities, including the commission, affecting other

unspecified areas or times of the year.   See G. L. c. 131, § 40,

as inserted by St. 1990, c. 388, § 1 (commission "may issue

enforcement orders directing compliance with this section and

may undertake any other enforcement action authorized by law").

     Dredging without filing a notice of intent (NOI) and

without receiving and complying with an order of conditions is

expressly prohibited by the WPA.   G. L. c. 131, § 40.   Although

there are exceptions to the requirement for filing an NOI,9

commercial fishing is not one of them.    Aqua King argues that




     8
       We assume that "surf" clams and "sea" clams are idiomatic
variations referring to the same organism (spilosa solidissima).
The difference, if any, does not affect our analysis.
     9
       See G. L. c. 131, § 40, twenty-seventh par.; 310 Code
Mass. Regs. § 10.02(2) (2014).
                                                                   8


the term "dredge" as defined in similar statutes10 shows

legislative intent that hydraulic dredge fishing was not meant

to be regulated by the WPA.   However, the express definition of

the term "dredge," as provided by the DEP, includes even a

slight temporary deepening of the ocean floor.   See 310 Code

Mass. Regs. § 10.04 (2014) ("[d]redge means to deepen, widen or

excavate, either temporarily or permanently, land below the mean

high tide level in coastal waters . . .").

     Aqua King also contends that even if application of the WPA

to its fishing activities is jurisdictionally proper, the

commission's decision to do so was arbitrary and capricious

under the circumstances, and therefore must be invalid.11

We conclude that application of the WPA to Aqua King's method of

hydraulic clamming was supported by substantial evidence and was

neither arbitrary nor capricious.

     Ample evidence in the record supports the commission's

conclusion that Aqua King's dredging technique causes a


     10
       See G. L. c. 91, § 54 (dumping in tide waters); G. L.
c. 184, § 31 (conservation restrictions on real property).
     11
       Aqua King further argues that the commission has no
jurisdiction over the area where Aqua King conducted its
fishing. However, jurisdiction over the area subject to this
litigation was delegated by the DEP to the commission through
the WPA, giving it authority to regulate nearshore areas of land
under the ocean to the point where "the land is . . . 40 feet
below the level of the ocean at mean low water for
Provincetown's land in Cape Cod Bay." 310 Code Mass. Regs.
§ 10.25(2) (2014).
                                                                     9


temporary deepening of the ocean floor within nearshore waters;

a scan of the ocean floor found trenches some one to two feet in

depth and six to eight feet in width.     In sum, there was a

reasonable basis for the commission's decision.    See T.D.J. Dev.

Corp. v. Conservation Commn. of N. Andover, 36 Mass. App. Ct.

124, 128 (1994), quoting from Cotter v. Chelsea, 329 Mass. 314,

318 (1952) ("A decision is not arbitrary and capricious unless

there is no ground which 'reasonable men might deem proper' to

support it").

     Civil penalty.     The commission argues that the judge erred

in denying its request for the court to impose a civil penalty

against Aqua King for its WPA violation.12    We do not view the

judge's order on this claim as a denial with prejudice.     The

judge noted in his decision on the cross motions for judgment on

the pleadings that, at that particular time, the commission had

proposed neither remediation measures nor a timeline for their

implementation.   Rather, the commission indicated that these

specifics were "TBD."     Accordingly, the matter is remanded for

the judge to rule on the request for the imposition of a civil




     12
       The parties have not objected to a resolution of the
penalty issue in an "on the record" proceeding reviewing the
issuance of an enforcement order. That question therefore is
not before us.
                                                                  10


penalty13 once the commission has made the requisite

determinations under the WPA.

     Conclusion.   We vacate that portion of the judgment denying

count III of the defendant's counterclaim for the imposition of

a civil penalty, and that matter is remanded for further

proceedings consistent with this opinion.    In all remaining

respects, the judgment is affirmed.

                                      So ordered.




     13
       The statute provides in relevant part: "Whoever violates
any provision of this section. . . . shall be subject to a civil
penalty not to exceed twenty-five thousand dollars for each
violation." G. L. c. 131, § 40, as amended by St. 1990, c. 388,
§ 3.
