SJC Follows REBA’s Amicus Brief in Chapter 91 License Decision

On March 12, 2010, in Moot v. Department of Environmental Protection, the Supreme Judicial Court upheld the Legislature's 2007 amendment of G.L Chapter 91 to exempt uses, structures, and activities within landlocked tidelands from licensing requirements. This decision was the sequel to an earlier case by the same name, 448 Mass. 340 (2007), in which the SJC had invalidated the Department of Environmental Protection's regulations exempting landlocked tidelands from G.L. Chapter 91 licensing requirements, as exceeding the Department's authority. Following that decision, the Legislature enacted Chapter 168 of the Acts of 2007, exempting structures, uses, and activities within landlocked tidelands from licensing under Chapter 91. That statute also creating a new public benefit review process for those projects within landlocked tidelands that require the filing of an Environmental Impact Report under the Massachusetts Environmental Policy Act (MEPA). Thereafter, parties to the original litigation (which was aimed at the North Point project in Cambridge) challenged the amendments to Chapter 91, claiming that the Legislature had not made the findings required to relinquish the public trust rights in landlocked tidelands.

 

In an amicus brief, REBA argued that the legislature had made the required findings, but stopped short of complete relinquishment. Instead, REBA argued, the Legislature made a regulatory adjustment by exempting structures, uses, and activities within landlocked tidelands from Chapter 91 licensing requirements, while requiring the new MEPA public benefit review for certain projects. In its recent Moot decision, the SJC held, as REBA had argued, that the amendments to Chapter 91 did not relinquish all public trust rights and had legitimately exempted landlocked tidelands from Chapter 91 review. Charles N. Le Ray of Brennan, Dain, Le Ray, Wiest, Torpy & Garner, P.C. and Mary K. Ryan and Michael A. Leon of Nutter, McClennen & Fish, LLP submitted the amicus brief on behalf of REBA.

Click here for a copy of the brief.