Town, Feds Propose Talks On Monomoy Boundary Dispute

By: Tim Wood

Topics: Monomoy National Wildlife Refuge , Monomoy Refuge CCP

The Monomoy National Wildlife Refuge.  FILE PHOTO

CHATHAM – Town officials are willing to talk with the U.S. Fish and Wildlife Service to try to resolve the dispute over the western boundary of the Monomoy National Wildlife Refuge, but only if both parties have an equal voice management of the area.

However, federal legislation may still be the ultimate avenue the town takes to resolve the issue.

Representative William Keating said last week he will submit legislation setting the refuge's western boundary at the low water mark when Congress returns to session Sept. 6, if necessary. But he cautioned that the legislation could be controversial and encouraged town officials to use the next few weeks to try to work out an agreement with the Fish and Wildlife Service (FWS).

“That would clearly be the best approach,” Keating said.

Town officials held two conference calls with FWS officials in the past two weeks and reviewed an outline for a memorandum of understanding (MOU) on the western boundary issue suggested by Scott Kahan, Regional Chief of the National Wildlife Refuge System. Chairman of Selectmen Jeffrey Dykens said the proposal did not address key concerns of the town and state and that legislation may be “the best path forward,” even if it might not be an easy journey.

“Nothing ventured, nothing gained,” Dykens said of the prospects of federal legislation.

This week, however, Dykens sent a letter to Kahan (see page 31) agreeing to talk further about a MOU, but only if it “truly represents a partnership, where all parties have an equal voice in management and sustainable use of the refuge while ensuring the town's continued historic uses and sustainable management of the area.”

The letter suggested joint management of the disputed area under which the town could not authorize new fisheries or activities without concurrence and support of the FWS, and the agency in turn could not impose new or expanded restrictions without the town's approval.

“Such arrangements would create a true partnership between the town and service and would ultimately result in even better stewardship of the area,” Dykens letter states.

In the comprehensive conservation plan (CCP) for the refuge approved earlier this year, the agency asserts ownership and control over about 4,000 acres of open water west of Monomoy. In the past the town and state have overseen this area, regulating both fin and shellfish resources. Federal officials say the original taking of Monomoy included this area and their oversight is necessary to extend protection over several species important to the refuge, including horseshoe crabs and blue mussels. Red knots, which nest on the refuge, feed on horseshoe crab eggs, and mussels are a food source for sea ducks and other avian species.

In the 15-year management plan, the agency allows current fishing and shellfish activities to continue, but reserves the right to impose further regulations should an existing or new fishery impact the mission of the refuge.

“That has us very concerned,” said Natural Resources Director Dr. Robert Duncanson, adding that the town wants to see solid science to back up the agency's claims. “That means they could decide tomorrow to change something.”

Kahan said it's in the best interest of both the refuge and the town to work together.

“We see a lot of benefit to working together cooperatively to talk about management in the submerged land and waters that make up the western boundary,” he said, “recognizing that we all have different authorities and responsibilities there.” He said the agency does not support a bill to set the boundary at low water, but he could not comment on specifics as he had not seen the legislation.

“We have such a tight relationship with the town and a great working history with them,” Kahan said in a phone interview. “We're very anxious to talk about how we're going to work it out.”

Kahan said Dykens’ letter sought to find a process by which the two sides could work together on the issue.

“We’re very interested in exploring that,” he said late Tuesday.

In an open letter to the town this week (published on page 31), Kahan called for the agency and the town to come together to develop a memorandum of understanding on the western boundary issue, similar to the agreement reached on the eastern boundary. In the original draft of the CCP, the FWS proposed assuming control over 717 acres of town-owned South Beach. Following negotiations, the parties signed a memorandum of understanding that set the boundary between South Beach and Monomoy significantly farther south and set out rules for managing the area where the two land forms merge.

“We believe this agreement should be long term and run the length of the CCP,” Kahan said in the letter. Recognizing the overlapping jurisdictions of federal, state and town agencies, Kahan proposed cooperatively managing activities within the boundary area including continued harvest and management of bay scallops and other commercial fisheries; continued harvest of shellfish; continued protection, monitoring and management of eelgrass, horseshoe crabs and mussel beds. A MOU would also outline how the agency and the town coordinate management of existing fisheries and any new or emerging fisheries, “ensuring a public process where all have a voice.”

In a July 15 letter to Town Manager Jill Goldsmith, Kahan rejected the town's request to reopen the CCP to clarify the western boundary as the low tide mark. The final CCP was the result of an extensive legal and public process – it was under development for nearly a decade – and the agency believes the issues can be settled through the MOU process, he wrote.

Duncanson said the town requested that the MOU be permanent rather than running for the duration of the CCP, and that the town have a “serious seat” at the table when it comes time to determine future regulations governing the area. While the agency was willing to include the town in discussions about future regulations, it was not willing to relinquish final authority over the open water area.

“That's not what the town is looking for,” he said. “We're looking for an equal seat at the table and an equal say in changes in fisheries in areas we currently dispute.” That's what Dykens' letter proposes, but the selectman also makes it clear that the town has not consulted with the state Attorney General's Office on the proposal. Attorney General Maura Healey has opposed the FWS interpretation of the western boundary.

“We simply do not know whether the Commonwealth would seek to be party to an MOU or whether they might object to the town entering into such an arrangement,” Dykens wrote. “We will certainly consult with the Attorney General's Office in the coming days.”

Keating said the town and FWS have a successful record of resolving disputes, “but we're left with this one part at the end” that requires resolution. He said he'd like the legislation to be clean, without additional amendments, but that's not something he can guarantee.

“There will be some people who will view this in a national context as a slippery slope,” he said.

That perception has already begun to circulate. The National Wildlife Refuge Association, a national organization that advocates for wildlife refuges, put out an action call on the situation, asking their supporters to “tell Congress to oppose giving away thousands of acres of the Monomoy NWR,” according to its website.

“Today, the Monomoy NWR is under threat,” a statement on the group's website reads. The proposed legislation “would give away 3,985 acres – half the entire refuge.” It urges supporters to write their representatives to oppose any legislation filed regarding the Monomoy boundary.

The group is headed by David Houghton, who is intimately familiar with Monomoy. He was manager there for five years in the late 1980s and early 1990s, and said the town and the refuge have always worked well together.

“I'm a huge fan of Chatham and their natural resource management capacity, and continue to be,” Houghton said. He met recently with Goldsmith and other town officials and offered to try to mediate the current dispute, saying he heard a “lot of anger, a lot of frustration” coming from the town's side.

“What it says to me is it's about trust,” he said. FWS also needs to understand that the issues here deal with people's livelihoods and are not abstractions, and the town has to acknowledge that the refuge contributes millions of dollars to the local economy. He proposed the idea of a MOU as a way to get the two parties talking and rebuild trust.

Legislation, he said, is too broad an approach to the issue, and could end up “completely unrecognizable” in its final form.

“A memorandum of understanding is a much more precision approach to solving the issues and identifying the main issue of future fisheries we don't know about, and setting up that process,” he said.

Keating said while he has yet to hear from other environmental groups, once the bill is filed it will likely draw their attention. He will have to explain to his fellow legislators, as well as senators and the president, why legislation is needed to address the situation, when they may be hearing opposition from constituents and environmental groups.

He urged the town and the FWS to taken “one last opportunity” to hammer out an agreement.

“I will still follow through and deal with legislation if that's necessary,” he said.

Selectmen last week issued a statement affirming their support for legislation to clarify the western boundary of Monomoy “to ensure the town and commonwealth's historic and legal rights are protected.”

In their July 26 statement, selectmen said town and state were surprised when, in the initial 2014 draft of the CCP, the FWS claimed that it owned the submerged lands under the open waters west of Monomoy. That position wasn't evident in the 1988 refuge management plan.

“This significant change in management direction, for no environmental reason, is in large part why residents and public officials were so surprised and concerned,” the statement reads. The town and state have for generations effectively managed those resources and continue to oppose this “unjustified taking.”

The FWS contends that a map that accompanied the 1944 Declaration of Taking, which established the refuge, included a line across the westerly waters that constituted the boundary. The town, however, takes the position that the line only shows the exterior limit of the taking so that that any land that may accrete above mean low water east of the line would be part of the refuge. Monomoy's coastline is constantly changing, the statement from selectmen reads, and the line only allows the FWS to capture new uplands as part of the refuge.

“From the beginning, FWS was aware of the dynamic nature of Monomoy's western coastline and the slow westerly movement of the island,” selectmen said in the statement. “As sand builds up over time and the island moves to the west, this accreted land above mean low water becomes part of the refuge.”

The town and state would continue the ban on horseshoe crab harvesting imposed in 2000.

“If the FWS unsubstantiated claim is allowed to stand, it would forever cede jurisdiction and management authority over the submerged lands and open waters to them, abrogating the town's and the Commonwealth's authority,” the statement reads.

The town retains the position that there was no reason to redefine the western boundary, said Dykens.

“Why? Because they can? It's overreach, it just is,” he said.