Opinion of the Justices to the Senate (Lawyers Weekly No. 10-073-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12092 OPINION OF THE JUSTICES TO THE SENATE. Beach. Public Land. Real Property, Beach, Littoral property. On May 26, 2016, the Justices submitted the following response to a question propounded to them by the Senate. To the Honorable the Senate of the Commonwealth of Massachusetts: The undersigned Justices of the Supreme Judicial Court respectfully submit this response to the question set forth in an order adopted by the Senate on April 13, 2016, and transmitted to us the next day. For reasons outlined below, we are unable to answer specifically, either yes or no, the question as it has been presented to us. The order concerns a bill, House No. 753, that is presently pending in the Senate committee on Rules, entitled “An Act preserving public trust rights in land affected by ocean erosion.”[1] The order indicates that “the bill was reported favorably out of the joint committee on Environment, Natural Resources and Agriculture” before being referred to the Senate committee. The bill proposes an amendment to G. L. c. 91, § 35. Chapter 91 is the Massachusetts waterways statute; together with the regulations promulgated thereunder, it provides for extensive State regulation of the Commonwealth’s interest in tidelands and other coastal and inland waterways, including great ponds. Section 35 presently consists of one sentence: “The provisions of this chapter relative to great ponds shall apply only to ponds containing in their natural state more than ten acres of land, and shall be subject to any rights in such ponds which have been granted by the commonwealth.” The bill would add a second sentence to § 35, following the existing text, that states: “Where sea level rise, storms, or other natural processes have caused the landward or lateral movement of a barrier beach into an area which was previously occupied by the bottom of any Great Pond or onto any other public land, the portion of the barrier beach relocated into the former bottom of the Great [P]ond or onto other public land shall be and remain in public ownership.” The order further recites that “grave doubt exists whether the bill, if enacted, would comply with” art. 10 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution, and that “some decision must be made on the current bill prior to the […]