AG To Sue Feds Over Monomoy Refuge Claim

By: Tim Wood

Topics: Monomoy National Wildlife Refuge , Monomoy Refuge CCP

The Monomoy National Wildlife Refuge.  FILE PHOTO

CHATHAM – The battle for jurisdiction over the waters west of the Monomoy National Wildlife Refuge may be headed to court.

Attorney General Maura Healey announced Tuesday that she has notified the U.S. Fish and Wildlife Service of her office's intention to file a lawsuit against the federal government to confirm state ownership of more than 4,000 acres of water and submerged land in Nantucket Sound west of the refuge, and put an end to the simmering dispute over the area.

If the two parties can't resolve the dispute within 180 days, Healey said her office will file suit in U.S. District Court in Boston.

Just two weeks ago, Rep. William Keating filed federal legislation to clarify the boundary issue. The town and the Fish and Wildlife Service also continue to negotiate over a memorandum of understanding which would give the two parties joint jurisdiction over management of the area in question.

Selectmen considered filing legal action, but decided to pursue legislation first, asserting that suing would likely be costly and time consuming. In a statement issued late Tuesday, Chairman of Selectmen Jeffrey Dykens said, “We hoped the western boundary dispute would not have come to litigation.  More than two years ago the town and Commonwealth first notified USFWS that their reinterpretation of the Declaration of Taking (DOT) resulting in an illegal taking of submerged lands was unacceptable and contrary to historical facts.  We are still hopeful that the cost of litigation can be avoided by early congressional action on Rep. Keating's bill clarifying the boundary.”

Last March, the agency released its comprehensive conservation plan (CCP) for the refuge, in which it claimed ownership and control of not only the more than 3,000 acres of upland but an additional 4,00-plus acres of submerged lands and open waters in Nantucket Sound west of the island. In a statement issued late Tuesday, Healey said the federal government's claim first appeared in 2014, when the draft CCP was released, after 72 years of “undisputed stewardship and ownership of these lands by the state.”

She said the town has “responsibly managed and regulated the submerged lands and the waters above them, and the related fisheries and resources for the benefit of both the natural resources and the public.” The lawsuit, Healey said, will seek to “restore that balance, which has been in place throughout Monomoy's 72-plus-year existence but has been threatened by federal actions.”

“Communities in Massachusetts have led the country in protecting marine ecosystems while supporting a modern and robust fishing and shellfishing industry,” she said. The lawsuit will “reaffirm our commitment to protect these valuable Cape habitats for future generations.”

“I’m very happy that the Attorney General is moving forward to defend the state’s interest in the waters west of Monomoy Island,” said State Rep. Sarah Peake, D-Provincetown. “It is unconscionable to me that the federal Fish and Wildlife Agency, with the mere swipe of the pen, can usurp state and local interest in this area.”

The Monomoy Refuge was established in a declaration of taking filed in federal court in 1944. According to Healey, the court filing only granted the federal government the right to approximately 3,000 acres of upland and not submerged land in Nantucket Sound.

“For most of Monomoy’s 72-year history, the U.S. Fish and Wildlife has viewed its boundary as the land above the low water line – which amounted to 3,599 acres as of the year 2000 – and left the regulation and management of the submerged lands and open waters – 4,005 acres as of the year 2000 – to the state and the town of Chatham,” Healey's statement said.

The CCP changed that. Prior to its final approval in March, the federal agency and town officials negotiated a memorandum of understanding regarding ownership of land on the east side of Monomoy. The draft plan sought to annex 717 acres of town-owned South Beach to the refuge; outrage in town ensued, and a new eastern boundary was agreed upon that left almost all of South Beach in town ownership.

When the final plan was released, both the town and state sought to change the claim of ownership of the waters west of the island, filing extensive comments and pressing the position with federal officials.

After the final plan was released, the town requested that Keating file legislation to clarify that federal jurisdiction did not include the waters and submerged lands west of the low water line. The bill, filed Sept. 20, is being opposed by environmental groups, including Mass Audubon, as well as Director of the U.S. Fish and Wildlife Service Daniel Ashe, out of concern it could be seen as a precedent and lead to the loss of territory or changes of use in other wildlife refuges. The bill, HR6075, has been referred to the House Committee on Natural Resources Subcommittee on Federal Lands.

Under the federal Quiet Title Act, a state must notify the head of a federal agency prior of a challenge to ownership of land under that agency's jurisdiction at least 180 days before filing suit. Healey said in the statement if the two parties can't resolve the dispute during that period, she anticipates her filing suit in U.S. District Court in Boston.

Meanwhile, while the Fish and Wildlife Service has raised several concerns about the town's comments on the latest draft of a memorandum of understanding regarding the western boundary of Monomoy, the agency says they believe the issues are not insurmountable.

“We do not view the above items as an impasse,” Scott Kahan, regional chief of the National Wildlife Refuge System, wrote in a Sept. 30 memo to Town Manager Jill Goldsmith, “but rather a basis from which we can move forward together in partnership to cooperatively manage the waters and submerged lands of [the] Monomoy National Wildlife Refuge.”

The town and the Fish and Wildlife Service have been negotiating over a memorandum of understanding (MOU) for the past several weeks to clarify the boundary issue. Town officials said they see a MOU as a way to ensure that the status quo continues while Keating's bill works its way through the legislative process.

In his memo, Kahan wrote that the Fish and Wildlife Service cannot accept several revisions to the MOU suggested by the town.

While the town wants to redefine ownership of the waters and submerged lands, the federal agency believes the MOU should be pursued recognizing the existing disagreement over ownership. “We do not believe this MOU is the proper forum in which to actually resolve those disputes, though it may be a way of setting them aside while they remain unresolved,” Kahan wrote.

While the agency has agreed to joint management of the disputed area with the town and state, references to the CCP should remain “as the framework and basis for the joint management of shellfishing that we agreed to cooperatively implement with the town,” the memo states. The Fish and Wildlife Service worked hard with the public to develop the management direction outlined in the CCP, it adds.

The agency also wants the MOU to run the 15-year duration of the CCP, while the town suggested removing any time period from the agreement. By running with the CCP, it can be automatically renewed pending agreement of both parties, Kahan wrote. Congress mandates that CCPs be renewed every 15 years, so any agreement that references it must also follow that timeline.

“We value our relationship with the town and believe that finalizing a MOU is very important,” Kahan wrote. “We greatly appreciate the mutual cooperation that has led us to develop the current draft which satisfies many significant issues of importance to the service and the town.”

Town officials received Kahan's memo late Friday and had yet to review the comments.