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14-P-607                                              Appeals Court

NAVY YARD FOUR ASSOCIATES, LLC vs. DEPARTMENT OF ENVIRONMENTAL
                     PROTECTION & another.1


                             No. 14-P-607.

           Suffolk.      April 2, 2015. - September 4, 2015.

        Present:      Kafker, C.J., Kantrowitz, & Hanlon, JJ.



Harbors. Real Property, Harbors, Restrictions, Littoral
     property, License. Trust, Public trust. License.
     Department of Environmental Protection. Administrative
     Law, Agency's authority, Regulations, Agency's
     interpretation of statute, Agency's interpretation of
     regulation. Regulation. Statute, Construction. Words,
     "Tidelands."


     Civil action commenced in the Superior Court Department on
December 20, 2011.

     The case was heard by Peter M. Lauriat, J., on motions for
judgment on the pleadings and for partial summary judgment.


     Donald R. Pinto, Jr., for the plaintiff.
     Seth Schofield, Assistant Attorney General, for Department
of Environmental Protection.
     John A. Pike, for Conservation Law Foundation, amicus
curiae, submitted a brief.


    1
       Commonwealth. We acknowledge the amicus curiae brief
filed by the Conservation Law Foundation.
                                                                    2


    KAFKER, C.J.   This appeal arises from a dispute over public

accommodation requirements imposed within a waterways license

issued by the Department of Environmental Protection (DEP)

pursuant to G. L. c. 91 for property currently owned by the

plaintiff, Navy Yard Four Associates, LLC (NYF).    The property

is an approximately 2.6-acre parcel of land in Charlestown

abutting Boston Harbor.   It is the site of a 224-unit apartment

building development known as Harborview.    DEP concluded in 2004

that the project was a nonwater-dependent use sited on filled

"Commonwealth [t]idelands" and therefore special conditions were

included as part of its waterways license to ensure that the

project served a "proper public purpose."    One of these special

conditions was that seventy-five percent of the ground floor of

the building be reserved for facilities of public accommodation.

In 2009, NYF sought to amend its license, particularly the

public accommodation requirements, contending that (1) G. L.

c. 91 limits "Commonwealth tidelands" to submerged lands and

excludes the tidal flats on which this project is sited, and (2)

"Commonwealth tidelands" do not include property owned by the

Boston Redevelopment Authority, which owned the property at the

time of permitting, or other such political subdivisions or

quasi public agencies of the Commonwealth.    DEP declined to

grant the amendment, and NYF appealed DEP's decision to the

Superior Court in accordance with G. L. c. 30A, § 14, naming
                                                                    3


both DEP and the Commonwealth as defendants.   The Superior Court

affirmed DEP's denial of NYF's requested c. 91 license amendment

and rejected NYF's request for a declaratory judgment

invalidating DEP's relevant regulations defining "Commonwealth

[t]idelands."   Based on the property's history, the applicable

statutory and regulatory framework, and the public trust

doctrine, we reach the same conclusions and therefore affirm the

Superior Court amended judgment before us.

    1.   Background.    From 1800 to 1979, NYF's property was part

of a larger parcel owned by the Federal government, originally

purchased to establish the Charlestown Navy Yard.    See St. 1800,

c. 26 (May session).    To that end, the United States government

lawfully filled and constructed piers and buildings on the

subject tidelands.    After the closure of the shipyard, the

Massachusetts Legislature, on July 22, 1978, passed a special

Act (the Navy Yard Act) to facilitate the transfer of Navy Yard

land to, in part, the Boston Redevelopment Authority (BRA).

St. 1978, c. 556.    The Federal government deeded a portion of

the land, including what became NYF's property, to the BRA in

May of 1979.    Since that period, the BRA has redeveloped the

area for multiple uses under licenses issued pursuant to c. 91,
                                                                        4


including marinas, condominiums, offices, and water

transportation facilities.2

     In March, 2003, LDA Acquisition, LLC (LDA), submitted a

waterways license application for the property to DEP pursuant

to G. L. c. 91 and its implementing regulations at 310 Code

Mass. Regs. §§ 9.01 et seq. (Waterways Regulations).     At that

time, the BRA still owned the property and LDA was its lessee.

LDA's license application sought approval to build the

Harborview project, as described above.   On February 18, 2004,

DEP issued its written determination on LDA's license

application, wherein it approved LDA's proposed Harborview

project.   It determined the property to fall on "Commonwealth

[t]idelands" as "the site is owned by the [BRA], a public

agency."   It also determined that the project, as conditioned,

complied with all applicable standards of the Waterways

Regulations, including the special standards for nonwater-

dependent use projects.

     In January, 2005, Navy Yard Four Associates Limited

Partnership notified DEP that it had taken over the project.       On

May 26, 2005, the BRA conveyed the property to Navy Yard Four

Associates Limited Partnership.   Thus, the waterways license

issued on June 11, 2005, to Navy Yard Four Associates Limited

     2
       Currently, the United States Constitution, the oldest
commissioned United States naval vessel, is docked at the former
Charlestown Navy Yard.
                                                                   5


Partnership rather than to LDA.   In October, 2005, Navy Yard

Four Associates Limited Partnership then conveyed the property

to NYF, the plaintiff, for nominal consideration.3

     In addition to approving NYF's plans to construct

Harborview, the DEP license requires in pertinent part that "at

least seventy-five percent of the ground floor of the building

be maintained as Facilities of Public Accommodation [FPAs] as

defined at 310 [Code Mass. Regs. §] 9.02, including interior

public pathways, public restrooms, and pathways within the

footprint of the building but open to the exterior."4    This

requirement stems from 310 Code Mass. Regs. § 9.53 (2000),5 which

requires FPAs for all "nonwater-dependent use project[s] that

include[] fill or structures on Commonwealth tidelands."6


     3
       The record demonstrates that NYF and Navy Yard Four
Associates Limited Partnership are one and the same.
     4
       The Waterways Regulations define an FPA in part as "a
facility at which goods or services are made available directly
to the transient public on a regular basis, or at which
advantages of use are otherwise open on essentially equal terms
to the public at large (e.g., patrons of a public restaurant,
visitors to an aquarium or museum), rather than restricted to a
relatively limited group of specified individuals (e.g., members
of a private club, owners of a condominium building)." 310 Code
Mass. Regs. § 9.02 (2000).
     5
       Throughout this opinion, our citation to any section of
the Waterways Regulations is to the applicable version in effect
at the time of the relevant DEP determination (i.e., the
original licensing or the proposed license amendment).
     6
       The amount of FPA space "shall be at least equal in amount
to the square footage of all Commonwealth tidelands on the
                                                                   6


Between 2005 and 2007, NYF constructed Harborview, and as

required by NYF's license, the ground floor of the Harborview

building includes 32,225 square feet dedicated to FPAs.

Beginning in 2006, NYF and its predecessors actively marketed

the FPA space, but by late 2009 NYF had yet to find appropriate

tenants.

     In 2006, the Office of Coastal Zone Management and DEP

completed the "Massachusetts Chapter 91 Mapping Project," which

established the presumptive historic high and low water marks

along the Massachusetts shore for purposes of DEP's jurisdiction

under c. 91.   With the new information provided by the mapping

project, it became clear that the entire footprint of the

building lies between the historic high water mark and the

historic low water mark.7




project site within the footprint of buildings containing
nonwater-dependent facilities of private tenancy," 310 Code
Mass. Regs. § 9.53(2)(c)1 (2000), though space may also be
provided for utility and access facilities that must be located
on the ground floor in order to serve facilities of private
tenancy located on other floors, provided that these "[u]pper
[f]loor [a]ccessory [s]ervices" do not occupy more than twenty-
five percent of the building footprint. 310 Code Mass. Regs.
§ 9.02 (1994).
     7
       "Historic High Water Mark means the high water mark which
existed prior to human alteration of the shoreline by filling,
dredging, excavating, impounding, or other means," while
"Historic Low Water Mark means the low water mark which existed
prior to human alteration of the shoreline by filling, dredging,
excavating, impounding or other means." 310 Code Mass. Regs.
§ 9.02 (2000).
                                                                     7


    In September, 2009, NYF submitted an application to DEP to

amend its waterways license, seeking (1) a reduction of the

amount of floor area required to be used as FPAs from 32,225

square feet to 12,570 square feet, and (2) approval for

flexibility in where to locate the FPAs on the ground floor of

the building.    NYF's application noted that Harborview rested on

filled "tidal flats" -- the area between the historic high and

low water marks -- and argued that though the property was

initially classified as "Commonwealth [t]idelands" due to the

BRA's ownership, its classification should change given that NYF

is a private entity.

    Pursuant to its regulations, DEP reviewed NYF's

application, held a public hearing, and considered the company's

response to comments.    On November 9, 2010, DEP issued a written

determination denying the requested amendment.    As stated in the

determination's findings, this decision was based on the fact

that when the original license was granted, the property was on

previously filled "Commonwealth [t]idelands," and that "[o]nce

held by the Commonwealth, the type of tidelands can't be changed

back without a specific act of the [L]egislature."

    On November 24, 2010, NYF requested an adjudicatory hearing

before DEP to challenge the denial of its license amendment

application.    On cross motions for summary decision, the

presiding officer issued a recommended final decision on
                                                                       8


November 21, 2011, affirming DEP's written determination, which

the DEP Commissioner adopted in his final decision on November

22, 2011.

     As a result, NYF filed a complaint in Superior Court

seeking judicial review of DEP's final decision pursuant to

G. L. c. 30A, § 14, and a declaration that certain provisions of

the Waterways Regulations are ultra vires.8      After holding a

hearing on NYF's motions for judgment on the pleadings and for

partial summary judgment, a judge denied the motions, affirming

DEP's final decision and denying declaratory relief in a written

memorandum of decision and order.      NYF appeals from the

resulting amended judgment.

     2.     Discussion.   A.   Public trust doctrine.   NYF's claim

implicates our public trust doctrine, and therefore, "[t]o

resolve this dispute we must consider in historical perspective

the allocation of rights among private parties, the

Commonwealth, and the public to use, own and enjoy one of the

Commonwealth's most precious natural resources, its shore."

Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 630

(1979) (Boston Waterfront).      See Arno v. Commonwealth, 457 Mass.

     8
       NYF also claimed that the Commonwealth had relinquished
all of its rights, title, and interest to the property as a
result of the Navy Yard Act, and that the Federal government had
adversely possessed the property, thereby extinguishing any
interests of the Commonwealth in the property. Later, NYF
voluntarily dismissed these counts of its complaint. Thus these
issues are not before us.
                                                                     9


434, 449 (2010) ("Throughout history, the shores of the sea have

been recognized as a special form of property of unusual value;

and therefore subject to different legal rules from those which

apply to inland property"), quoting from Boston Waterfront,

supra at 631.

       Under common law, private ownership in coastal land could

historically extend only landward of the mean high water mark.

Arno v. Commonwealth, supra.    Seaward of the high water mark,

ownership remained with "the Crown [and eventually the

Massachusetts Bay Colony, followed by the Commonwealth,] but

subject to the rights of the public to use the coastal waters

for fishing and navigation."    Ibid., quoting from Opinion of the

Justices, 365 Mass. 681, 684 (1974).   This changed, however,

with the Colonial Ordinance of 1641-1647, which authorized the

transfer of title to property between the high and low water

marks -- the tidal flats -- to private parties, though this

title has always had "strings attached."    Arno v. Commonwealth,

457 Mass. at 449, quoting from Boston Waterfront, 378 Mass. at

637.    While "[g]reater public rights exist in submerged lands,

the land lying seaward of the low water mark," Arno v.

Commonwealth, supra at 450, both tidal flats and submerged lands

are referred to collectively as "tidelands," id. at 436, and

"[a]ll tidelands below [the historic] high water mark are

subject to [the public trust doctrine]."    Trio Algarvio, Inc. v.
                                                                    10


Commissioner of Dept. of Envtl. Protection, 440 Mass. 94, 97

(2003).

    General Laws c. 91, the Waterways Act, represents the

modern embodiment of the public trust doctrine, and "governs

. . . water- and nonwater-dependent development in tidelands and

the public's right to use those lands."    Moot v. Department of

Envtl. Protection, 448 Mass. 340, 342 (2007).    As such, those

parties seeking to put tidelands to either water- or nonwater-

dependent use -- e.g., filling tidelands, constructing or

extending wharves, piers, dams, bridges or other structures --

must first obtain a license pursuant to c. 91.    DEP administers

this licensing program, as "[t]he Legislature has designated DEP

as the agency charged with responsibility for protecting public

trust rights in tidelands through the c. 91 licensing program."

Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities

Siting Bd., 457 Mass. 663, 678 (2010).    See G. L. c. 91, § 2.

    In 1983, the Legislature made numerous material amendments

to c. 91.   See St. 1983, c. 589, § 21.   Foremost for our

purposes, the Legislature added several definitions to its

waterways statutory scheme that are controlling to this day.

First, the Legislature defined "[t]idelands" as "present and

former submerged lands and tidal flats lying below the mean high

water mark."   G. L. c. 91, § 1.   Next, the Legislature clarified

the meanings of "Commonwealth tidelands" and "[p]rivate
                                                                  11


tidelands."   "Commonwealth tidelands" are "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," while "[p]rivate tidelands" are those "held by

a private party subject to an easement of the public for the

purposes of navigation and free fishing and fowling and of

passing freely over and through the water."   Ibid.

     Consistent with the Legislature's delegation of authority

to DEP to protect the public trust, see G. L. c. 91, §§ 2, 10,

18, the agency first promulgated the Waterways Regulations in

1990 to effectuate the Waterways Act's purposes.   310 Code Mass.

Regs. §§ 9.01 et seq.   These regulations, which were submitted

to the Legislature for review in accordance with the statute's

1983 amendments, see G. L. c. 91, § 18, expounded on the key

definitions described by the statute.   Although DEP's

definitions of "[t]idelands"9 and "[p]rivate [t]idelands"10


     9
       "Tidelands" are "present and former submerged lands and
tidal flats lying between the present or historic high water
mark, whichever is farther landward, and the seaward limit of
state jurisdiction. Tidelands include both flowed and filled
tidelands, as defined in [this section]." 310 Code Mass. Regs.
§ 9.02 (1994).
     10
       "Private [t]idelands" are defined as "tidelands held by a
private person subject to an easement of the public for the
purposes of navigation and free fishing and fowling and of
passing freely over and through the water." 310 Code Mass.
Regs. § 9.02 (2000).
                                                                    12


largely track the language of the statute, DEP further expressly

defined "Commonwealth [t]idelands" to mean "tidelands held by

the Commonwealth, or by its political subdivisions or a quasi-

public agency or authority, in trust for the benefit of the

public; or tidelands held by a private person by license or

grant of the Commonwealth subject to an express or implied

condition subsequent that it be used for a public purpose"

(emphasis supplied).   310 Code Mass. Regs. § 9.02 (1994).

    B.   DEP regulations.   On appeal, NYF challenges DEP's

Waterways Regulations, arguing that the agency's definition of

"Commonwealth [t]idelands" exceeds its regulatory authority and

violates the public trust doctrine.   NYF challenges DEP's

interpretation of both parts of the statutory definition:     (1)

which tidelands may be attributed to "the Commonwealth," and (2)

which agencies or political subdivisions constitute "the

Commonwealth."   NYF asserts that only present or former

submerged lands may be classified as "Commonwealth [t]idelands"

and therefore subjected by DEP to the FPA requirements, and that

including political subdivisions or quasi public agencies such

as the BRA under the umbrella of "the Commonwealth" is

inconsistent with the language of c. 91.

    When considering the validity of lawfully promulgated

regulations, we utilize a two-part test.   "Using conventional

tools of statutory interpretation, we first consider 'whether
                                                                   13


the Legislature has spoken with certainty on the topic in

question, and if we conclude that the statute is unambiguous, we

give effect to the Legislature's intent.'"     Biogen IDEC MA, Inc.

v. Treasurer & Receiver Gen., 454 Mass. 174, 186 (2009)

(citation omitted).   However, "if the Legislature has not

directly addressed the issue and the statute is capable of more

than one rational interpretation, we proceed to determine

whether the agency's interpretation may 'be reconciled with the

governing legislation.' . . .   The ultimate question is whether

the policy embodied by the agency's interpretation is

reasonable."   Id. at 187, quoting from Goldberg v. Board of

Health of Granby, 444 Mass. 627, 633 (2005).    See G. L. c. 30A,

§ 14(7)(a)-(d).   Although an agency may only exercise "the

powers and duties expressly conferred upon it by statute and

such as are reasonably necessary to carry out its mission,"

Commonwealth v. Maker, 459 Mass. 46, 50 (2011) (citation

omitted), a plaintiff "challenging the validity of an agency's

regulations has a formidable burden."   Biogen IDEC MA, Inc. v.

Treasurer & Receiver Gen., 454 Mass. at 187.    After reviewing

the challenge to DEP's regulatory definitions, we conclude that

NYF has not satisfied this burden.

    i.   Commonwealth tidelands may include tidal flats.

Although c. 91, § 1, expressly defines "[t]idelands" as "present

and former submerged lands and tidal flats lying below the mean
                                                                  14


high water mark," NYF maintains that the statutory phrase

"Commonwealth tidelands" only includes present and former

submerged lands, not tidal flats.

    Of course, "the language of the statute is the principal

source of insight into the legislative intent," Acme Laundry Co.

v. Secretary of Envtl. Affairs, 410 Mass. 760, 770 (1991), and

"[t]he Legislature must be presumed to have meant what the words

plainly say."   Condon v. Haitsma, 325 Mass. 371, 373 (1950).

Here, the text of the Waterways Act clearly states that

tidelands are "present and former submerged lands and tidal

flats lying below the mean high water mark."   G. L. c. 91, § 1.

The very next definitions listed are those for "Commonwealth

tidelands" and "[p]rivate tidelands" (emphases supplied), which

suggests that both of these definitions incorporate the earlier

definition of "tidelands," and therefore apply to both submerged

lands and tidal flats.   See Commonwealth v. Hilaire, 437 Mass.

809, 816 (2002) ("When the Legislature uses the same term in the

same section, or even in different statutory sections, the term

should be given a consistent meaning throughout"); Commonwealth

v. Raposo, 453 Mass. 739, 746 (2009).

    The purpose behind c. 91 also supports DEP's

interpretation.   "General Laws c. 91 sets out to 'preserve and

protect,' under [DEP's] watch, the public's rights in

tidelands."   Moot v. Department of Envtl. Protection, 448 Mass.
                                                                   15


at 347.   As explained previously, c. 91 represents the modern

iteration of the public trust doctrine.   This public trust has

always applied to both submerged lands and tidal flats, as both

types of shore land were recognized as special forms of property

with unusual value.   See Trio Algarvio, Inc. v. Commissioner of

Dept. of Envtl. Protection, 440 Mass. at 97; Arno v.

Commonwealth, 457 Mass. at 449.   Although a distinction between

submerged lands and tidal flats is recognized under the

doctrine, with submerged lands entitled to more public

protection, id. at 450, tidal flats are still of significant

public concern and are not "private" in the traditional sense,

as NYF appears to contend.   Rather, a categorical exclusion of

all tidal flats from the statutory definition of "Commonwealth

tidelands," regardless of ownership, undermines the public

rights and interest in this special form of property.

    In light of the statutory language and purpose, DEP's

interpretation of "Commonwealth [t]idelands" to include both

submerged lands and tidal flats is reasonable and entitled to

deference.   See Biogen IDEC MA, Inc. v. Treasurer & Receiver

Gen., 454 Mass. at 187; Goldberg v. Board of Health of Granby,

444 Mass. at 633.

    ii.   Definition of "Commonwealth."   NYF next challenges

DEP's regulatory definition of "Commonwealth" in the phrase

"Commonwealth [t]idelands," which expressly includes the
                                                                      16


Commonwealth's political subdivisions and quasi public agencies

or authorities.   310 Code Mass. Regs. § 9.02.     NYF correctly

contrasts the regulation with c. 91, which contains no such

express reference to political subdivisions or quasi public

agencies or authorities within either its definition of

"Commonwealth tidelands" or "[p]rivate tidelands."11     The

statute, however, specifies only two categories of tidelands:

"Commonwealth tidelands" and "[p]rivate tidelands," thereby

requiring a choice to be made between the two when classifying

the property of political subdivisions and quasi public agencies

or authorities.   "Private tidelands" are defined by statute as

"tidelands held by a private party . . . ."      The ordinary

meaning of "private" is "[r]elating or belonging to an

individual, as opposed to the public or the government."

Black's Law Dictionary 1315 (9th ed. 2009).      Contrast Lafayette

Place Assocs. v. Boston Redev. Authy., 427 Mass. 509, 532 (1998)


     11
       While G. L. c. 91, § 38, as appearing in St. 2010,
c. 309, § 2, goes on to include both "the commonwealth" and "its
political subdivisions" in the definition of "[c]laimant" as
used in §§ 38 to 48 of the statute (concerning abandoned
vessels), this does little to fill the gap left in the
definitions of "Commonwealth tidelands" and "[p]rivate
tidelands" in § 1. Merely applying the principle that when
"specific language appears in one section of a statute and is
absent from a related section, the absent language should not be
read into the provision from which it is missing," Tilcon Mass.,
Inc. v. Commissioner of Rev., 30 Mass. App. Ct. 264, 269 (1991),
as NYF urges us to do, fails to provide a workable solution as
it would prevent the contested category from meeting either the
"Commonwealth" or "[p]rivate" tideland definitions.
                                                                   17


("The BRA is certainly a public body, a governmental entity of

some sort performing public functions").     Interpreting "private

party" under the statute to include a political subdivision or

quasi public agency runs counter to the plain meaning of

"private."    See Telesetsky v. Wight, 395 Mass. 868, 872 (1985)

(statute "must be afforded its plain meaning").

    The plain meaning of "Commonwealth" in this context is less

obvious.     Whether the reference in c. 91 to "Commonwealth

tidelands" is meant to include tidelands held by "political

subdivisions or a quasi-public agency or authority" is not

without ambiguity.     We recognize that "[s]tatutory silence, like

statutory ambiguity, often requires that an agency give clarity

to an issue necessarily implicated by the statute but either not

addressed by the Legislature or delegated to the superior

expertise of agency administrators."     Goldberg v. Board of

Health of Granby, 444 Mass. at 634.     See Middleborough v.

Housing Appeals Comm., 449 Mass. 514, 523 (2007).     "The ultimate

question is whether the policy embodied by the agency's

interpretation is reasonable."     Biogen IDEC MA, Inc. v.

Treasurer & Receiver Gen., 454 Mass. at 187.    We conclude that

DEP's interpretation that tidelands held by quasi public

agencies and political subdivisions of the Commonwealth fall

within the statutory term "Commonwealth tidelands" is reasonable

and entitled to deference given the need to choose between only
                                                                    18


two categories of tidelands (private and Commonwealth), the

public rather than private nature of political subdivisions and

quasi public authorities, and the ambiguity of the statutory

term "Commonwealth," which in general understanding may or may

not include such political subdivisions and quasi public

agencies.    See ibid.

    DEP's interpretation is also buttressed by the process

prescribed for DEP's rulemaking authority, which reserves

oversight of promulgated regulations for the Legislature.      G. L.

c. 90, § 18.    "That the Legislature did not act to challenge the

[agency's] regulations lends weight to the conclusion that the

[agency] acted within its delegated authority in promulgating

them."   MRI Assocs., Inc. v. Department of Pub. Health, 70 Mass.

App. Ct. 337, 342 n.8 (2007).     Compare Wilson v. Commissioner of

Transitional Assistance, 441 Mass. 846, 853-854 (2004).

    C.      DEP's decision not to grant the amendment.   Although we

have rejected NYF's challenge to the validity of the

regulations, we must still address DEP's particular application

of the statute and regulations to NYF's proposed license

amendment.     Generally, "the application of a regulation to the

particular facts of a case is within an agency's discretion and

we accord an agency's interpretation of its own regulations

substantial deference."     Biogen IDEC MA, Inc. v. Treasurer &

Receiver Gen., 454 Mass. at 184.    The court will only overturn
                                                                  19


the agency's action "if it was arbitrary, unreasonable or

inconsistent with the plain terms of the regulation itself."

Ibid.     In our review, we exercise considerable restraint, as

"[t]he court should be slow to decide that a public board has

acted unreasonably or arbitrarily and should search for some

ground which reasonable [people] would regard as a proper basis

for the agency's action."     Fioravanti v. State Racing Commn., 6

Mass. App. Ct. 299, 302 (1978).     We conclude that DEP's

application of its regulations and denial of NYF's proposed

license amendment was not arbitrary or capricious, an abuse of

discretion, or otherwise not in accordance with law.     G. L.

c. 30A, § 14(7)(g).

     During the time the BRA owned the property, from 1979 until

2005, the property's tidelands qualified as "Commonwealth

tidelands" due simply to the BRA's ownership.     As a quasi public

authority of a political subdivision of the Commonwealth, it

falls under the umbrella of "Commonwealth" for the purpose of

waterways licensing.12    This is reflected in DEP's February,


     12
       "The BRA is both a 'redevelopment authority' under G. L.
c. 121B, § 4, and an 'urban renewal agency' under G. L. c. 121B,
§ 9. Additionally, it serves as the planning board for the city
of Boston and monitors private development under G. L. c. 121A."
Mahajan v. Department of Envtl. Prot., 464 Mass. 604, 606 (2013)
(footnote omitted). Of its many enumerated powers, "[p]erhaps
the most significant power granted to the BRA is the power of
eminent domain." Ibid. See Lafayette Place Assocs. v. Boston
Redev. Authy., 427 Mass. at 533 (classifying BRA as a public
employer).
                                                                  20


2004, written determination regarding the property in reference

to the original license -- "[t]he tidelands are categorized as

Commonwealth Tidelands because the site is owned by the Boston

Redevelopment Authority, a public agency" -- and as noted by

both parties, the Harborview project was designed with this

categorization in mind.13

     The conveyance of the property from the BRA to NYF's

predecessor in interest and then to NYF, both private entities,

did not change the classification of the tidelands as

"Commonwealth [t]idelands" for two reasons.    First, once the

property was conveyed to NYF, the waterways license was

automatically transferred to NYF pursuant to 310 Code Mass.

Regs. § 9.23, which transferred all obligations and

responsibilities under the license to the new owner, including

the FPA requirements.14    While DEP has the authority to renew and


     13
       As the original determination observes, "The entire site
lies on filled Commonwealth Tidelands and the project has been
planned to comply with the appropriate dimensional and use
limitations of the applicable Waterways Regulations."
     14
          Under 310 Code Mass. Regs. § 9.23(1) (1996),

     "Unless otherwise provided in the license, a valid license
     shall run with the land and shall automatically be
     transferred upon a change of ownership of the affected
     property within the chain of title of which the license has
     been recorded. All rights, privileges, obligations, and
     responsibilities specified in the license shall be
     transferred to the new landowner upon recording of the
     changed ownership."
                                                                  21


amend licenses, 310 Code Mass. Regs. §§ 9.24, 9.25 (1996), DEP

is not at liberty to transform the nature of the property from

"Commonwealth" to "private" tidelands or extinguish the public's

rights in the property.     "[O]nly an act of or an express

delegation by the Legislature could extinguish the public's

rights in the parcel."     Arno v. Commonwealth, 457 Mass. at 448.15

The Legislature has taken no such action for the property in

question.

    Secondly, when NYF gained title to the property, it did so

"subject to an express or implied condition subsequent that it

be used for a public purpose."     310 Code Mass. Regs. § 9.02

(1996) (definition of "Commonwealth [t]idelands").     This

contention is supported by the deed from the BRA to NYF's

predecessor in interest.     The deed incorporates a "Land

Disposition Agreement" (agreement) that explicitly includes the

FPA requirements now contested by NYF among other conditions



     Additionally, although it was LDA, the BRA's tenant, that
originally applied for the license, under the regulations
"[a]pplicant means any person submitting a license or permit
application or other request for action by the [DEP] pursuant to
310 [Code Mass. Regs. §] 9.00, and shall include the heirs,
assignees, and successors in interest to such person" (emphasis
supplied). 310 Code Mass. Regs. § 9.02 (1996). Thus, Navy Yard
Four Limited Partnership (NYF's predecessor) occupied LDA's
shoes with respect to the license application.
    15
       This requirement applies to both tidal flats and
submerged lands. Arno v. Commonwealth, 457 Mass. at 452 ("The
process of divesting the public of its rights in tidal flats
also requires an act of the Legislature").
                                                                    22


stemming from the classification of the property as lying on

"Commonwealth [t]idelands."    Furthermore, the deed establishes

an explicit condition subsequent and right of reentry on behalf

of the BRA if NYF fails to comply with the conditions contained

in the agreement.    While the BRA eventually came to support

NYF's amendment application, and NYF argues that it and the BRA

may amend this agreement at any time, the BRA, like DEP,

"[can]not extinguish forever claims that [it] was not free to

settle in the first place."    Arno v. Commonwealth, 457 Mass. at

453.

       Lastly, NYF argues that the classification of its property

as lying on "Commonwealth [t]idelands" contradicts the

presumptions embedded in DEP's definitions of both "Commonwealth

[t]idelands" and "[p]rivate tidelands."16   The presumptions in


       16
       The Waterways Regulations state that in applying the
definition of "Commonwealth [t]idelands," DEP

       "shall act in accordance with the following provisions:
       (a) [DEP] shall presume that tidelands are Commonwealth
       tidelands if they lie seaward of the historic low water
       mark or of a line running 100 rods (1650 feet) seaward of
       the historic high water mark, whichever is farther
       landward; such presumption may be overcome only if [DEP]
       issues a written determination based upon a final judicial
       decree concerning the tidelands in question or other
       conclusive legal documentation establishing that,
       notwithstanding the Boston Waterfront decision of the
       Supreme Judicial Court, such tidelands are unconditionally
       free of any proprietary interest in the Commonwealth; (b)
       [DEP] shall presume that tidelands are not Commonwealth
       tidelands if they lie landward of the historic low water
       mark or of a line running 100 rods (1650 feet) seaward of
                                                                   23


question essentially hold that if tidelands fall landward of the

historic low water mark, as with the Harborview project, DEP

will presume the tidelands in question are private tidelands and

not Commonwealth tidelands.   This presumption may be overcome,

however, by a "showing that such tidelands . . . are not held by

a private person."   (See note 16, supra.)   NYF argues that DEP

has not made this showing, as NYF is a private entity.    Of

course, at the time of the licensing determination, the property

was held by the BRA, a public entity, and the license, including

its obligations, was transferred to NYF as described above.

DEP's application of the regulations likewise recognizes the

express language of the statute -- that private entities may



    the historic high water mark, whichever if [sic] farther
    landward; such presumption may be overcome only upon a
    showing that such tidelands, including but not limited to
    those in certain portions of the Town of Provincetown, are
    not held by a private person."

310 Code Mass. Regs. § 9.02 (1994). The regulatory definition
of "[p]rivate [t]idelands" specifies that DEP

    "shall presume that tidelands are private tidelands if they
    lie landward of the historic low water mark or of a line
    running 100 rods (1650 feet) seaward of the historic high
    water mark, whichever is farther landward; such presumption
    may be overcome upon a showing that such tidelands,
    including but not limited to those in certain portions of
    the Town of Provincetown, are not held by a private person
    or upon a final judicial decree that such tidelands are not
    subject to said easement of the public [for navigation,
    fishing, fowling, and passing freely over and through the
    water]."

310 Code Mass. Regs. § 9.02 (2000).
                                                                  24


hold "Commonwealth tidelands" subject to an implied or explicit

condition subsequent that the property be used to further a

public purpose.   G. L. c. 91, § 1.   Such express statutory

language and categorization overrules the ordinary regulatory

presumptions as well.   In sum, DEP's application of the

statutory and regulatory requirements was a reasonable and

proper basis for the denial of NYF's requested license

amendment.   See Teamsters Joint Council No. 10 v. Director of

Dept. of Labor and Workforce Dev., 447 Mass. 100, 106 (2006)

(reasonably proper agency decision is not arbitrary or

capricious).

    3.   Conclusion.    For the above stated reasons, we affirm

the amended judgment in favor of DEP.

                                      So ordered.
