Aqua King Fishery, LLC v. Conservation Commission of Provincetown (Lawyers Weekly No. 11-081-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   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 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 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, […]

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