Stone-Ashe v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-082-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   13-P-489                                        Appeals Court WENDY STONE-ASHE, trustee,[1]  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[2] No. 13-P-489. Suffolk.     January 14, 2014. – July 16, 2014.   Present:  Trainor, Graham, & Agnes, JJ. Trust, Public trust.  Department of Environmental Protection.  Administrative Law, Agency’s authority, Regulations.  Regulation.  Real Property, Littoral property, Harbors, Wharf, Restrictions.  Harbors.  Evidence, Expert opinion.  Witness, Expert.       Civil action commenced in the Superior Court Department on October 29, 2010.   The case was heard by Bonnie H. MacLeod, J., on a motion for judgment on the pleadings.     Richard A. Nylen, Jr., for the plaintiff. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendants.      GRAHAM, J.  The plaintiff, Wendy Stone-Ashe, trustee of the Stone-Ashe Realty Trust,[3] appeals from a Superior Court judgment that affirmed a final decision of the Commissioner (commissioner) of the Department of Environmental Protection (department), which concluded that a seawall on the plaintiff’s property lies seaward of the historic high water mark and, therefore, is under the jurisdiction of the department and subject to public rights pursuant to G. L. c. 91.  Substantially for the reasons stated in the decisions of the commissioner and the Superior Court judge, we affirm. Background.  1.  Statutory and regulatory framework.  “Under the public trust doctrine, the Commonwealth holds tidelands in trust for the use of the public for, traditionally, fishing, fowling, and navigation.”  Moot v. Department of Envtl. Protection, 448 Mass. 340, 342 (2007), S.C., 456 Mass. 309 (2010).  See generally Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 631-632 (1979) (detailing history of public trust doctrine).  In enacting G. L. c. 91, the Legislature delegated at least some of its authority to preserve and regulate the Commonwealth’s tidelands to the department.  Moot v. Department of Envtl. Protection, supra at 347.  General Laws c. 91, § 1, inserted by St. 1983, c. 589, § 21, defines “[t]idelands” as “present and former submerged lands and tidal flats lying below the mean high water mark.”  “Private tidelands” are defined as “tidelands 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. The department’s jurisdiction extends only to the tidelands seaward of the historic high water mark.  “[B]ecause actual high and low water marks can change over time, notably pursuant to licenses to fill […]

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