Refuge Tells Its Side Of Boundary Dispute: Monomoy Officials Express Willingness To Work With Town, State

By: Tim Wood

Topics: Monomoy National Wildlife Refuge

The Monomoy National Wildlife Refuge.  FILE PHOTO

CHATHAM – The controversy over the western boundary of the Monomoy National Wildlife Refuge is a complicated issue, and the way the story has been portrayed in the media – that the U.S. Fish and Wildlife Service took over some 4,000 acres of water and submerged land west of the island in 2016 – isn't the way the agency sees things.

“That is false,” Refuge Manager Matthew Hillman said of the spin the town and state has put on the story. “There are a lot of sides to this story.”

With a few exceptions, Hillman said, the comprehensive conservation plan (CCP) at the center of the controversy didn't alter public uses of the refuge or the waters to the west of the barrier island off the town's southeastern tip. Fin fishing and most shellfishing remain allowed uses governed by state and local regulations, and there are no plans to curtail those activities, he said.

This graphic from the Monomoy National Wildlife Refuge's comprehensive conservation plan shows the western boundary as claimed by the U.S. Fish and Wildlife Service. Town and state officials counter that low water is the boundary and the agency's claim amounts to a federal land grab.

This graphic from the Monomoy National Wildlife Refuge's comprehensive conservation plan shows the western boundary as claimed by the U.S. Fish and Wildlife Service. Town and state officials counter that low water is the boundary and the agency's claim amounts to a federal land grab.

The eastern boundary of the refuge is set at low water; it's the exact location of the western boundary that is at the heart of the disagreement. Federal officials are insistent that the 1944 Declaration of Taking that established the refuge fixed the western boundary west of the island in Nantucket Sound, encompassing the 3,000 and 4,000 acres (the number varies due to Monomoy's shifting location) of waters and submerged lands of disputed territory. Town and state officials are adamant that the declaration only gave the refuge jurisdiction over the area landward of low water. Until the 2016 plan the refuge was always described as including about 3,000 acres; the plan increased the area to more than 7,000 by including the disputed area, they say.

The refuge is telling its side of the story in a statement posted on its website last week. The statement, written by Hillman and accompanied by a Q&A focusing on the boundary and jurisdictional issues, refers to the CCP's long planning process and review of materials supporting the agency's jurisdictional determination regarding the western boundary. The disputed area contained “extensive seagrass beds and other environmental attributes that are so important to the waterfowl species that the refuge was established to protect,” the statement reads.

“Subject matter and legal experts have carefully considered the historical records, and have determined that the federal government has never relinquished jurisdiction to manage uses in those areas,” Hillman wrote.

Hillman said he takes Chatham officials' concerns “very seriously and very much values the long-standing relationship that the service has with the town government and with the community.” The FWS has offered to enter into an agreement with the town and state to cooperatively manage the submerged lands and waters in the disputed area. “We remain very interested to work in partnership to conserve fish and wildlife for the continuing benefit of residents and visitors alike,” he wrote.

Town officials have reviewed the statement, and while it accurately describes the disagreement, the Fish and Wildlife Service's views on the boundary don't mesh with either the town's or the state's, Selectman Shareen Davis said in a statement.

She noted that Attorney General Maura Healey's office has called the Fish and Wildlife Service's position an “erroneous claim to ownership” of the disputed area and has threatened legal action unless the jurisdiction disagreement can be resolved.

The town, with the support of the state, has sought a resolution at various levels, including meeting with federal officials in Washington, D.C. and endorsing legislation filed by Ninth Massachusetts District Congressman William Keating, which sets the western boundary of the Monomoy Refuge at low water. While the legislation was endorsed by the House Committee on Natural Resources, it has yet to come up for a vote before the full House. In May selectmen criticized Keating for failing to move the bill forward, suggesting the opposition from several national environmental groups was keeping it from a vote. They issued a “call to action” encouraging residents and second homeowners to contact legislators and urge support for the bill. Keating countered that like a lot of legislation currently before the House, the bill was subject to the whims of the Republican majority and was unlikely to be voted on.

Selectman Jeffrey Dykens, who along with Davis serve as a subcommittee focusing on the Monomoy boundary issue, said there has been no change in the the situation.

“Our basic position hasn't changed,” Dykens said. “They believe they have a legal basis, we believe they don't.”

Regarding the offer of joint management of the area, Dykens said the agreement the agency offered had no teeth; neither side had veto power over jurisdictional issues. “They'd still have total control, and that's not acceptable to the town,” he said.

The 1944 Declaration of Taking set the fixed western boundary between approximately 41.65555556 degrees north, 41.54861111 degrees south. In 1953, the state challenged the federal government's claim to submerged lands in Nantucket Sound under the Submerged Lands Act. The law gave states jurisdiction over waters that were within their boundaries when the union was formed, including coastal waters within three miles. The Supreme Court ruled that the areas west of Monomoy Point were not under state jurisdiction at the time the union was formed, and therefore were already federal lands and were exempt from the Submerged Lands Act.

According to the information on the refuge website, various documents, including development plans for the refuge and biological assessments, provided justification for including the submerged lands within the fixed boundary. Both the western and eastern boundaries were endorsed when Congress approved the Wilderness Area designation for Monomoy in 1970. Finally, all private and state rights within the Declaration of Taking were eliminated as a result of the designation establishing the refuge.

“Federal law under the Supremacy Clause of the U.S. Constitution provides authority to the federal government in maritime matters and has been recognized by the courts,” the website states.

The CCP instituted some restrictions within the disputed area, including bans on kite boarding and jet skis, which can disturb nesting birds, and the harvesting of blue mussels, which are a food source for eider ducks. Horseshoe crab harvesting is also prohibited. While an early draft of the plan proposed banning commercial shellfishing, following extensive research and lobbying by the town, the agency agreed that those activities are compatible with the refuge's mission of protecting migratory birds. However, within the Wilderness Area, clam and scallop harvesting is limited to hand harvesting only. Fishing, including long line, mid-water trawl, hook and line and rod and reel, as well as lobster, crab and whelk pots, were determined not to cause disturbance to the submerged lands and are regulated under federal and state agencies.

“That's not going to change,” Hillman said regarding those allowed activities. “They're still a really important part of our mission, that we're open for people who want to use [the refuge] for wildlife-friendly uses.”

“We don't want to strike fear into anyone's heart” that those uses will be prohibited, he added. “We're very happy with the way they've regulated the fisheries,” he said of state and local management. “They do a phenomenal job.”

He allowed that there's always the possibility that the situation could change. A new threatened or endangered species could begin nesting on the refuge, or the state of an existing species could change; the red knot, for instance, was recently listed as a near-threatened species. Any change to access or allowed activities would be addressed on a case by case basis, Hillman said, and would require extensive study as well as public hearings.

“This will not come as a surprise to anybody,” he said. “There would be many, many opportunities for the community and the public to respond.”

The refuge has a long history of working with the town and state, and that will continue, despite the dispute, Hillman said. The agency is working with the town on solutions to the Morris Island Road flooding problems that emerged during the past winter's storms – the refuge headquarters on Morris Island was inaccessible for several days due to the flooding – and a 14-passenger van obtained through a Department of Transportation grant was recently used to transport people between the town's museums during June's History Weekend. The van is shared by the Eastern Massachusetts National Wildlife Refuge Complex, which includes seven other refuges administered from the Great Meadows Wildlife Refuge in Sudbury. A grant is also paying for a 20-passenger landing craft for the refuge complex that is expected to be delivered in September; it will be used to transport people and equipment to Monomoy, where biologists camp amid the island's huge tern colony in the summer and various organizations use the historic Monomoy Lighthouse and Keeper's House. Hillman said the agency plans to offer its use to the town should there be a need to get a vehicle such as an ATV to the outer beach, for instance.

“It's a pretty unique resource,” he said of the vessel.

Hillman said efforts are being made, in accordance with the CCP, to boost access and develop more programs. Local Girl Scouts tend a pollinator garden near the Morris Island headquarters, and the refuge has contracted with Jamie Bassett of Monomoy Adventures for fly fishing and bird watching tours, in addition to Keith Lincoln's established shuttle service. Refuge staff also visit local schools in the spring.

Hillman said he's open to meeting with selectmen to discuss the outstanding issues. “It would be to everyone's benefit for everyone to sit down in a room and have these discussions,” he said.

While wind, storms and tides continually change Monomoy's environment and shoreline – the eastern “ambulatory boundary” changes in response to the barrier island's migration over the years is largely responsible for the refuge growing from an initial 3,000 acres to nearly 8,000 – the boundary remains as set in 1944, Hillman's statement reads. But the refuge remains an asset to the local community as well as visitors, he added.

“I think we play a really important role not only in wildlife conservation, but by providing a wilderness experience you can't have anyplace else,” he said.

Davis said the issue may appear on the agenda of the board of selectmen's July 16 meeting.