Opinion of the Justices to the Senate ( 2016 )

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SJC-12092
OPINION OF THE JUSTICES TO THE SENATE.
Beach. Public Land. Real Property, Beach, Littoral property.
On May 26, 2016, the Justices submitted the following
response to a question propounded to them by the Senate.
To the Honorable the Senate of the Commonwealth of
Massachusetts:
The undersigned Justices of the Supreme Judicial Court
respectfully submit this response to the question set forth in
an order adopted by the Senate on April 13, 2016, and
transmitted to us the next day. For reasons outlined below, we
are unable to answer specifically, either yes or no, the
question as it has been presented to us.
The order concerns a bill, House No. 753, that is presently
pending in the Senate committee on Rules, entitled "An Act
preserving public trust rights in land affected by ocean
2
erosion."1 The order indicates that "the bill was reported
favorably out of the joint committee on Environment, Natural
Resources and Agriculture" before being referred to the Senate
committee. The bill proposes an amendment to G. L. c. 91, § 35.
Chapter 91 is the Massachusetts waterways statute; together with
the regulations promulgated thereunder, it provides for
extensive State regulation of the Commonwealth's interest in
tidelands and other coastal and inland waterways, including
great ponds. Section 35 presently consists of one sentence:
"The provisions of this chapter relative to great ponds shall
apply only to ponds containing in their natural state more than
ten acres of land, and shall be subject to any rights in such
ponds which have been granted by the commonwealth." The bill
would add a second sentence to § 35, following the existing
text, that states: "Where sea level rise, storms, or other
natural processes have caused the landward or lateral movement
of a barrier beach into an area which was previously occupied by
the bottom of any Great Pond or onto any other public land, the
portion of the barrier beach relocated into the former bottom of
the Great [P]ond or onto other public land shall be and remain
in public ownership."
1
We note that identically worded bills have been filed in
at least three previous sessions of the Legislature. See House
No. 804 of 2013-2014 (188th General Court); House No. 254 of
2011-2012 (187th General Court); House No. 4725 of 2009-2010
(186th General Court).
3
The order further recites that "grave doubt exists whether
the bill, if enacted, would comply with" art. 10 of the
Massachusetts Declaration of Rights and the Fourteenth Amendment
to the United States Constitution, and that "some decision must
be made on the current bill prior to the end of this legislative
session" on July 31, 2016. The order then states the question
that the Senate puts to us: "Does House No. 753, if enacted,
comply with" art. 10 and the Fourteenth Amendment?
We are unable to answer the question as it is presented
because the meaning of some of the significant terms and
concepts in the bill are unclear to us, the question itself is
quite broad and not susceptible to a single yes or no answer,
and a complete answer may depend on facts and circumstances we
do not have before us.
1. The principal focus of the bill appears to be on the
migration of barrier beaches into great ponds. It declares that
any barrier beach that moves as a result of natural forces into
an area that is, or perhaps at one time was, a great pond shall
thereafter be deemed public land.2,3 What constitutes a great
2
The bill is not limited to the movement of beaches into
great ponds. It also provides that the natural movement of a
barrier beach "onto any other public land" shall result in the
beach becoming public land. Neither the bill nor the order
specifies whether "other public land" refers only to land owned
by the Commonwealth or also includes land owned by a
municipality or by the Federal government.
4
pond, and the significance of a body of water being a great
pond, has been discussed in many of our cases. See
Massachusetts Water Resources Commission, Compilation and
Summarization of the Massachusetts General Laws, Special Laws,
Pertinent Court Decisions, Etc., Relating to Water and Water
Rights 26 (1965) (Compilation and Summarization);
J.J. Whittlesey, Law of the Seashore, Tidewaters and Great Ponds
in Massachusetts and Maine 12-13 and 25-31 (1932) (Law of the
Seashore). It suffices to say that a pond that exceeds ten
acres in its natural state is a great pond. See G. L. c. 91,
§ 35; 310 Code Mass. Regs. § 9.02 (2014) (defining "[g]reat
[p]ond"). With limited exceptions, the waters of a great pond
and the land that comprises the bed of the pond to the natural
low water mark belong to the Commonwealth, and the ponds are
held in trust for certain public uses. See Massachusetts Water
Moreover, the bill does not indicate whether the "public
ownership" that would result from the migration of a barrier
beach into a great pond, or onto other public land, necessarily
signifies ownership by the Commonwealth. The import seems to be
that a barrier beach that moves into a great pond would be in
the "public ownership" of the Commonwealth. We assume that a
barrier beach that moves "onto any other public land," not owned
by the Commonwealth, is intended under the bill to become the
property of the public entity that owns that land, which may be
a municipality or the Federal government.
3
The bill does not indicate whether it contemplates that a
barrier beach, before its movement into a great pond or onto
other public land, was publicly or privately owned. Presumably
it could be either. We assume that the bill would apply to all
barrier beaches, even those that are privately owned and those
owned by a municipality or by the Federal government.
5
Resources Commission, Compilation and Summarization, supra;
J.J. Whittlesey, Law of the Seashore, supra.
The term "barrier beach," although central to the bill, is
not defined in the bill or in the Senate's order. It does not
appear to be defined anywhere in G. L. c. 91, in the regulations
promulgated by the Department of Environmental Protection
pursuant to G. L. c. 91, or in any other chapter of the General
Laws. The term has been defined by the Department of
Environmental Protection and the Office of Coastal Zone
Management for environmental management purposes, i.e., to
regulate development and other activities in environmentally
sensitive areas;4 we are not aware of any specific definition of
4
See, e.g., 310 Code Mass. Regs. § 10.29(2) (2014),
promulgated pursuant to G. L. c. 131, § 40, the wetlands
protection statute. That regulation defines a "[b]arrier
[b]each" for wetlands protection purposes as "a low-lying strip
of land generally consisting of coastal beaches and dunes
extending roughly parallel to the trend of the coast. It is
separated from the mainland by a narrow body of fresh, brackish
or saline water or a marsh system. A barrier beach may be
joined to the mainland at one or both ends." 310 Code Mass.
Regs. § 10.29(2). See also Massachusetts Barrier Beach Task
Force, Guidelines for Barrier Beach Management in Massachusetts
(1994). The term is also defined by the Department of
Environmental Protection in a similar fashion in Title 5 of the
State environmental code, which governs on-site sewage treatment
and disposal. See 310 Code Mass. Regs. § 15.002 (2014).
This court has also used the term in several of its
opinions, typically referring to a particular land formation at
issue in a case, but never in the sense of providing a
definition of the term or suggesting that it has a universally
understood meaning. See, e.g., Doherty v. Planning Bd. of
Scituate, 467 Mass. 560, 563 (2014); Friends & Fishers of
6
the term for the purpose it is being used by the Legislature
here, to define the fee ownership of real property. We are
reluctant to opine on the important question posed without a
specific understanding of what is meant by the Legislature when
it uses the term in this particular context.
Even if we were to assume the Legislature intends to define
"barrier beach" in a manner similar to the existing
environmental protection regulations, there is no indication
that the new language is meant to apply only to those movements
of barrier beaches that occur after the statute is amended.
Some language in the bill suggests that it may apply as well to
movements of barrier beaches that have already occurred;
however, it contains no reference to a point in time past when
the phrases "previously occupied by the bottom of any Great
Pond" and "the former bottom of [a] Great [P]ond" are to be
measured. It is conceivable, therefore, that the passage of the
bill would turn an existing barrier beach that is now privately
owned into public land if it is located in what was, at some
undefined point in the past, "an area which was previously
occupied by the bottom of any Great Pond." We make this
observation to underscore the potential significance of the
Edgartown Great Pond, Inc. v. Department of Envtl. Protection,
446 Mass. 830, 832 (2006); Lorusso v. Acapesket Improvement
Ass'n, 408 Mass. 772, 774, 776 (1990).
7
proposed change and its potential effect on existing and future
property rights.
2. The question framed for our advice, like the bill
itself, is not entirely clear. We are asked whether the bill,
if enacted, would "comply with" art. 10 of the Declaration of
Rights5 and with the Fourteenth Amendment.6 These constitutional
provisions protect a variety of rights and interests. We assume
that the question is focused on takings of real property, and
that by asking whether the bill would comply with these
provisions, the question in essence asks whether the bill, if
5
Article 10 of the Massachusetts Declaration of Rights
provides, in part: "Each individual of the society has a right
to be protected by it in the enjoyment of his life, liberty and
property, according to standing laws. He is obliged,
consequently, to contribute his share to the expense of this
protection; to give his personal service, or an equivalent, when
necessary: but no part of the property of any individual can,
with justice, be taken from him, or applied to public uses,
without his own consent, or that of the representative body of
the people. In fine, the people of this commonwealth are not
controllable by any other laws than those to which their
constitutional representative body have given their consent.
And whenever the public exigencies require that the property of
any individual should be appropriated to public uses, he shall
receive a reasonable compensation therefor. . . ."
6
Section 1 of the Fourteenth Amendment to the United States
Constitution provides: "All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they
reside. No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty,
or property, without due process of law, nor deny to any person
within its jurisdiction the equal protection of the laws."
8
enacted, would effect a taking of private property for public
purposes, for which just compensation would be required.
Even on that assumption, however, the question is too broad
to permit a single answer. The question would require us to
determine whether, in any imaginable scenario, the bill's
declaration that land will be "in public ownership" would
establish a physical taking of privately-owned property; and if
so, whether that taking would be for a permissible public
purpose. These types of issues are typically resolved in
adversary litigation, on concrete sets of facts. Here there are
no concrete facts. We have not been supplied with legislative
facts, a report of testimony or other evidence that was before
the joint committee, or other material that might inform our
views on the matter presented. We have no facts pertaining to
particular properties -- beaches, ponds, or adjacent properties
-- that may be affected by the proposed new language. There is
also no indication as to how many properties might be affected.
With the limited information we have, we cannot say
definitively that there would or would not be permissible,
compensable takings if this bill were enacted. There are simply
too many uncertainties for us to give a single answer that would
apply to all properties that might be affected, and all possible
scenarios.
9
3. The court recently discussed various common-law
principles in White v. Hartigan, 464 Mass. 400, 407-408 (2013),
that may have some bearing on the question, and, at least, will
serve to illustrate some of the difficulties that the question
entails.7 The court stated that "littoral (shoreline) boundaries
are not fixed, because natural processes of accretion or erosion
can change them," and that "[t]he line of ownership [of littoral
property] follows the changing water line" (citations omitted).
Id. at 407. The court has applied these principles to littoral
property on ponds. See Lorusso v. Acapesket Improvement Ass'n,
408 Mass. 772 (1990). The Lorusso case involved a coastal pond,
as the bill before us seems to contemplate.8 The court held that
certain littoral property owners on Green Pond in the town of
Falmouth had acquired ownership of accretions to their property,
7
In White v. Hartigan, the court expressly left open a
question similar to the question on which the Justices are now
being asked to opine. The court said: "We offer no view as to
any interest the Commonwealth may arguably have in the portions
of the beach that have migrated into the beds of the upland
coastal ponds. See Attorney General v. Jamaica Pond Aqueduct
Corp., 133 Mass. 361, 364 (1882) ('The great ponds of the
Commonwealth belong to the public, and, like the tide waters and
navigable streams, are under the control and care of the
Commonwealth')." White v. Hartigan, 464 Mass. 400, 406 n.12
(2013).
8
Neither the bill nor the Senate order expressly
differentiates between inland great ponds and coastal great
ponds. Because the bill speaks of the movement of a "barrier
beach" into a great pond, we believe the bill must be aimed at
coastal great ponds, like those that were present in White v.
Hartigan, supra.
10
in the former bed of the pond, that were the result (in part) of
the natural movement of a barrier beach into the pond.9 The
court's opinion does not indicate, however, whether Green Pond
is a great pond, and does not discuss any special principles
that might apply in the case of great ponds.10
Generally speaking, "[a] littoral proprietor on a great
pond containing more than ten acres has ownership of the soil to
low water mark." Massachusetts Water Resources Commission,
Compilation and Summarization, supra at 27. See, e.g., Potter
9
The accretions in that case resulted from a combination of
the natural landward movement of a "barrier beach" (also
referred to by the court and the parties as a "sand bar") and
the dumping of "spoil" (excavated soil) from a public dredging
project. The court stated in relevant part:
"We begin our legal analysis by setting forth some
well-established relevant principles having to do with the
rights of littoral landowners. One of these is that, when
the boundary between the water and the land changes by the
gradual deposit of sand and clay and the like, then the
line of ownership ordinarily follows the changing water
line. Michaelson v. Silver Beach Improvement Ass'n, 342
Mass. 251, 253-254 (1961). A littoral owner can acquire
ownership of such accretions caused by either natural
processes or human intervention if they were not caused by
the owner himself. Id. at 254."
Lorusso v. Acapesket Improvement Ass'n, 408 Mass. 772, 780
(1990).
10
Parenthetically, we note that the Commonwealth was named
as a defendant in the Lorusso case. It asserted no claim to the
disputed land, and on appeal it urged the affirmance of the
judgment of the Land Court that had determined that the littoral
property owners had acquired ownership of the sand bar as an
accretion to their property. Lorusso v. Acapesket Improvement
Ass'n, supra at 773.
11
v. Howe, 141 Mass. 357, 359 (1886) (recognizing that ownership
of private property bounded by great pond extends to natural low
water mark); Inhabitants of W. Roxbury v. Stoddard, 7 Allen.
158, 167 (1863) (describing boundary of property on great pond
as "to low-water mark"). The natural water lines of a great
pond, as with other bodies of water, may of course change over
time as a result of natural events including accretion or
reliction.11 This would seem to be especially true in cases of
coastal ponds, where the contours of the coastlines, beaches,
and ponds will be affected by storms, rises in sea level, and
other natural forces. The question then becomes whether the
boundaries of the littoral property on great ponds change along
with these natural changes in the water lines. It is a question
that raises important and complex competing principles of
private property law and the Commonwealth's protection of the
public trust that were not addressed in the Lorusso case, supra.
11
"Accretions are additions of alluvion (sand, sediment, or
other deposits) to waterfront land; relictions are lands once
covered by water that become dry when the water recedes." Stop
the Beach Renourishment, Inc. v. Florida Dep't of Environmental
Protection, 560 U.S. 702, 708 (2010). The Court described the
process of "avulsion" as a sudden or perceptible change to the
littoral land by natural forces, as opposed to the gradual and
imperceptible change that constitutes accretion or reliction.
Id. at 708-709.
 12
The issues cannot properly be resolved in an advisory opinion,
at least not with the limited information we have here.12
4. For these reasons, we respectfully respond to the
Senate order by saying that we are unable to answer the question
as it has been presented.
12
Often, when the Justices are faced with a request for an
advisory opinion, we invite interested individuals and
organizations to submit briefs on the question or questions
presented. These briefs can provide useful background
information, inform our views, and sharpen our advice.
We do not think this is a suitable occasion to request
briefs, for two reasons. First, as we have said, the scope of
the question asked of us is extremely broad. Even with the
assistance of briefs, we doubt we would be able to provide a
response to the question as it has been presented. See, e.g.,
Answer of the Justices, 364 Mass. 838, 846-847 (1973) ("Thus,
the question is 'abstract' in the sense that it cannot be
answered at its present level of generality without first
considering each of the multitude of factual questions which are
implicit in it. No single answer could possibly be
appropriate"). Second, as we also have stated, we are mindful
that significant private property rights are at stake, which
will almost certainly be litigated if the bill were enacted. In
these particular circumstances, and especially in light of the
breadth of the bill and the question, those rights are better
left for adjudication in adversary litigation, where they can be
considered on a fully developed record, with reference to
concrete facts. Cf. Opinion of the Justices, 363 Mass. 889, 898
(1973) ("Where private rights are involved . . . it would
normally be inappropriate for us to give an opinion on a matter
of statutory construction which could be brought to the court by
the usual litigation process, initiated by the parties in
interest").
13
The foregoing response is submitted by the Chief Justice
and the Associate Justices subscribing hereto on the 26th day of
May, 2016.
RALPH D. GANTS
FRANCIS X. SPINA
ROBERT J. CORDY
MARGOT BOTSFORD
FERNANDE R.V. DUFFLY
BARBARA A. LENK
GERALDINE S. HINES