-: SJC-13210, Katharine Armstrong and others
V Katharine Theoharides and others.
-: Okay.
Attorney Sanders is up first.
-: Good morning.
May it please the court, Dylan Sanders,
for the Commonwealth of Massachusetts,
I will focus my time on the first issue
that has been reported for appeal
concerning the department of environmental protections,
authority to rely upon Harbor's specific standards
approved in a Municipal Harbor plan.
I am, of course, happy to answer questions
about the second issue concerning CLF's cross appeal,
but otherwise we will rest on our brief for that issue.
There are three independent grounds on which this court can
and should reverse the superior court's decision below
and find that DEP has authority from the legislature
to adopt those provisions of the Waterways regulations
that incorporate, and indeed rely on,
and require the department to rely on
Harbor specific substitute standards
that have been approved by the secretary of energy
and environmental affairs.
When the department is making licensing determinations
for non-water dependent uses in tideland,
non-water dependent uses of tidelands
in areas subject to an approved MHP.
Those three grounds are as follows.
First, chapter 91, section 18 alone provides the department
with sufficient authority to design a regulatory system
that relies upon Harbor specific standards
that have been approved by the secretary.
Applying traditional principles of judicial review
of administrative regulations.
-: Well, I'm trying to understand the limits to that.
Could the department just pass a reg saying,
whatever the secretary says goes.
-: No, your honor.
And that's not the case that we are presented here.
-: Well, why not?
I'm just trying to make sure,
'cause one thing I can't figure out
is what residual authority does DEP actually retain.
And
particularly, I take it, the Municipal Harbor plan,
this one, it deals with the big enchiladas,
the height of the building.
Sanders: Among other things.
-: But it could have done everything.
It could have included in the Municipal Harbor plan
all the different aspects that DEP considers, couldn't it?
-: Municipal Harbor plans cannot displace
all of the performance standards,
indeed any of the performance standards,
and I'll explain why.
Kafker: Why not?
Well, I thought, why not?
I'm just trying to understand.
-: So what the substitute standards are,
are minimal standards
that are applied to project specific uses
of tidelands.
They get a project, a specific project
in the chapter 91 system.
They are not the performance standards themselves
and they should not be confused
with the performance standards themselves,
which the department subsequently uses
in making its licensing determinations.
And this was at the heart
of the superior court's decision below.
The superior court equated, and indeed appellates
are quick to equate the satisfaction
of a substitute standard with the satisfaction
of the performance standards that the department uses
in making licensing determinations for specific uses.
Those are not the same two things.
If I can convince you of one thing here this morning-
-: Well, I understand they're not exactly the same
in this case, but could they be?
Could the Municipal Harbor plan expand beyond height
and deal with all the different things
that DEP is looking at?
That was my question.
-: So the generic standards that are otherwise
in the Waterways regulations, the eight generic standards
that can theoretically, are open to the secretary
to approve if they've been proposed
by the local municipality.
-: So they could use all eight then?
They could put all eight
into the Municipal Harbor plan?
-: Yes, so those eight include setbacks, footprint,
height, the width of the Harbor walk and other elements.
Those are not to be confused
with the three overall performance standards
that DEP later uses when making licensing determinations
about specific uses.
Those overall performance standards are in 9.51, 9.52
and in 9.53.
The first paragraph of each of those.
Those are the performance standards
that a project must satisfy in order for DEP
to later determine after an extensive chapter 91 process
that the project is worthy of a license.
But the MHP process itself, and the substitute provision,
the substitute alternatives themselves
do not take the place of those performance standards.
So note-
-: If I apply those here, give me a specific,
tell me how that would apply here.
So Municipal Harbor plan has said
you can build a 600 foot skyscraper here,
and you can build a 300 foot whatever.
-: If I may stop you there, your honor.
The municipal Harvard plan approved here does not say,
it does not authorize the construction
of a 600 foot building.
What it says, is a building up to 600 feet
is the new, in this case, maximum standard for that.
That project still must meet,
it still must meet all of the other criteria.
-: Give me an example.
And also, it would help me,
has there ever been a time where the DEP rejected a project
that had been approved in a Municipal Harbor plan?
I mean, or has it always been sort of,
if it got into the Municipal Harbor plan,
it eventually was licensed by DEP?
Is there ever been an example?
And could you tell us, flesh that out for us?
-: Yes, so I am not aware,
and there's certainly nothing in the record
of DEP having approved a specific project
that complied with a Municipal Harbor plan.
However.
-: No, no, I'm asking for the opposite,
where they've decided, for 30 years this has been going on.
Has DEP ever said this was in the Municipal Harbor plan,
but I still reject it or has it ever?
I don't give the license.
This was included in the Municipal Harbor plan,
but a license didn't issue.
-: So, I don't have a specific example to give you,
and there's certainly none in the record.
DEP certainly reserves the authority to deny a license
or issue a written determination
that a license is not warranted for a specific use,
even if a project complies with an alternative standard.
So, in this case, even if a specific project is 585 feet,
nevertheless, DEP still reserves the authority
to determine that it does not meet the overall performance.
-: Is that true in the real world?
Put aside the delegation here for a moment.
Is that last point true in the real world,
where you've got the secretary who has made the decision
to hire the commissioner of DEP and DEP is there,
for better or worse in less of a political position
and more of in a regulatory position,
where they have an enormous obligation
when you're dealing with the tidelands.
So the reality of the secretariat and the agency
and the secretariat's relationship to the governor,
in the real world, is that ever going to happen?
-: Let me answer, your honor, in the real world,
I take your points.
They are all valid points.
But also in the real world,
extensive work goes on in the approval
of the Municipal Harbor plan.
In the real world, the secretary,
and in reality, the obligation has been delegated
by the secretary lawfully to the office
of Coastal Zone Management.
In the real world, CZM works closely
in the development process with DEP.
So, as you see in the record,
and as well as in the Amicus briefs that have been filed
in the appendix of the Amicus briefs
of the Mass Municipal Association,
DEP routinely and often concurs after extensive involvement
in the development of the Municipal Harbor plan process.
So there is extensive administrative work,
detailed work that goes on.
That, I would submit, is an important point to take
from the real world as well.
If I may continue there with-
-: Before you do continue, my question is this,
how do I distinguish between what you're calling reasonable,
rational, reliance on the secretary versus delegation
that's improper under the public trust doctrine.
-: Excellent question, your honor.
Wendlandt: Thank you.
(all laughing)
-: The distinction is this,
Municipal Harbor plans are a separate process.
They are started by a municipality who proposes to CZM
and the secretary that they want Harbor specific standards
governing the tidelands for that particular municipality.
After an extensive process that includes public comment,
that involves and in consultation with DEP
and other agencies, a public hearing process.
If the secretary approves the MHP,
then the MHP goes into effect with one or more,
up to eight substitute standards.
The chapter 91 process, that sets the table
for the chapter 91 licensing project.
If a particular project then wants to go forward
under those new guidelines,
or in some places the requirements
of that Municipal Harbor plan,
the chapter 91 applicant then proposes to DEP
and they have to go through, by the way, local zoning,
before they get to that,
and they have to go through all other environmental avenues
before they get to that.
But let's say they get through all of those processes.
Then the application lands on DEP's desk,
and then the chapter 91 process starts.
There's public notice.
There's a new public comment period
about this specific project, and there's public hearings,
if it's a non-water dependent use.
And then DEP, following extensive, actually discussions
and negotiations with stakeholders,
issues a written determination.
That written determination
is where DEP makes the determination
that the projects benefits to the public interest
in tidelands outweighs the project's detriments
to the public's interest in tidelands.
That crucial determination, which DEP is charged with making
under chapter 91, section 18, is nowhere made
by the secretary in the approval of an MHP.
If there is one thing
that I want to convince your honors of,
or attempt to convince your honors of today,
it is that no such delegation has occurred
because the department.
-: Then tell me, if that's the case,
tell me why shall means may.
So, if you take 9.312 B, DEP shall apply use limitations
on the numerical standard specified
in the Municipal Harbor plan as a substitute
for respective limitations contained
in the DEP waterway regulations.
-: I'm here to tell you your honor something different,
shall does not mean may in that context.
I'm here to tell you, the state defendant's position
is that shall means shall,
but the follow up question should be, if I may presume,
well, what is the department binding itself to do?
The department, by binding itself,
and this was part of the error
the superior court made below,
by binding itself to applying those alternative standards,
the department is not saying binding itself to saying,
in any public purpose determination,
I'm using public purpose determination here to refer
to the balancing test of benefits versus detriments
to the public's interest in tidelands.
All the approval of a substitute standard does
is redefine the envelope of potential projects
that are eligible for a chapter 91 license.
It does not bind the department in any way
to find that a specific use of tidelands
after considering the entire project in its totality,
under all the performance standards,
and indeed under all the other standards
of the Waterways regulation.
The department's decision to bind itself
to alternative minimum standards,
indeed the department's decision to bind itself
to the generic standards
that are in the Waterways regulation
does not bind the department to then determine
that every project that meets those requirements
is eligible for a license.
It works the same way if the secretary had never approved
an alternative standard.
Kafker: It'll be helpful if you chose.
-: The fact that a project meets even the generic standards
in a Waterways regulations does not mean
it gets a chapter 91 license.
-: Would be really helpful if you could actually give me
an example in 30 years where that actually did occur?
So it really, the Municipal Harbor plan
changes a couple of specifications,
but otherwise DEP is completely free
to make their licensing determination
based on the generic standards.
Is that right?
So that when I read the AGs brief which says,
you need to read shall as may to make this legal,
they're confused to, everybody's confused
'cause this is really pretty simple.
They're just substituting too little,
they're substituting a couple of factors,
but otherwise DEP can freely do its job.
Is that right?
Because when we go through this enormous record
and deal with this,
is that gonna be the ultimate conclusion,
or are you oversimplifying that they really are occupying
most of the decision making here?
-: I think what the AGs brief does, did
and what the superior court decision did below
and what appellates argument does
is they don't properly place the role
of those generic standards
or if there is a substitute standard,
what role those play.
Those define the envelope of potential projects
that then DEP can take interest in.
-: They don't just define the envelope.
They're saying that because this building is as high
as 600 feet, that shouldn't impact your decision making,
is that what they're saying
or am I overstating that?
When the secretary says you can have a building
as high as 600 feet, can DEP then use the size
of that building, the height of that building at all,
or they've lost the ability to consider that factor?
-: Oh, excellent question, your honor.
And I take your point.
Kafker: Not as good as Justice Wendlandt's.
-: And that gets to the heart of it.
Yes, DEP...
So the secretary has approved an alternative height standard
up to 600 feet.
That's a new envelope.
It comes with offsets which are intended to offset.
DEP nevertheless, consider that in the context
of considering all other factors that it need.
And it would be the same in applying a generic standard.
The fact that a building a structure, a use of tidelands
is 55 feet, due to peculiar circumstances
of that particular lot, that might be,
it might have adverse impacts
that DEP would take into account in making
in the public benefit versus private detriments calculation.
-: They can do that consistent with DEP's regulation,
which defers to the secretary on that point,
they can still ignore it or discount it?
-: Neither, your honor.
Under the regulations, DEP reserves the ultimate authority
to make that determination about whether it's eligible
for a license under the standard in chapter 91, section 18.
As a practical matter, getting back to your honor's point,
there has been, and will be often extensive
administrative record concerning
that is fodder for DEP.
And as a practical matter, all parties,
both those who oppose, and those in favor of the project
will take that into account.
But the critical a factor is this,
all the approval of a substitute standard does
is redefine the envelope which defines the projects
which are eligible for a chapter 91 license.
-: Let's say that's true.
What you're going to hear is it doesn't matter.
Let's go back to the initial delegation.
And chapter 91, section 18 just does not allow DEP
to delegate this responsibility to the secretary,
even if it's advisory.
So you go to step one,
the initial delegation of the legislation.
That's going to be their initial argument, I think.
And my initial argument is that there has been no delegation
because the secretary's approval of Municipal Harbor plan
and any substitution standards in it
is in no way a determination of whether the public benefit
the project benefits to the public's interest
in those particular tidelands outweighs the detriments.
So the secretary's approval of substitute standards,
again, is not that public purpose determination.
Those are two separate processes.
Those are two separate animals.
And the proper public purpose determination can only be made
in the context of a specific use
that applies for a chapter 91 license.
-: So can I, let's say I'm the department,
and the secretary has approved a building 600 feet high.
Can I say in my overall analysis,
because it's 600 feet high I'm rejecting it.
Is that consistent with the rest?
Sanders: I'm sorry.
I missed the tail end of your honor's question.
-: So, I'm the department,
and I'm going through my section 18 responsibilities.
I have an application,
somebody's building something 600 feet high
consistent with the Municipal Harbor plan.
Can I say everything else looks good,
but it's 600 feet high, I'm rejecting it.
-: Theoretically, yes.
A specific project.
So, to begin with, the secretary has not authorized
any particular building to go up to 600 feet.
So the department evaluates a specific project,
which the secretary has not done.
The secretary has established an envelope
and the written determination we have here, I'm sorry,
the approval of the Municipal Harbor plan is very clear.
They are not authorizing any specific project
or the height of any specific project.
They are merely establishing a new standard
for that Municipal Harbor.
-: All right, so whatever they're doing,
let's say, use your words,
they're establishing a new standard.
Can I say, as a department now, that standard,
I don't like it, reject the project
based on that new standard that the secretary has set.
-: The department of Environmental Protection
always has an obligation to protect the public's interest
in tidelands.
This is an obligation that is never, can never be altered
by the secretaries of approval of alternative standard
or the secretary's approval
of all eight alternative standards.
And this is crystal clear as a matter of law
in 310 CMR 9.35, which says that every project
or any project must be consistent with those rights
that the Commonwealth holds in Trust,
those rights in tidelands that the Commonwealth holds
in Trust for the public.
So the department always has the authority to rule,
and 3.9.35 is not a subject to
alteration or compromise,
it's not impacted by the secretary's approval
of substitute standards.
It is otherwise what's known as a basic requirement.
Basic requirements under the Waterways regulations
overcome a presumption that a project otherwise meets
the public purpose requirement.
So if the department believes that, nevertheless believes-
-: Well, I don't understand the presumption point,
'cause I thought you were saying there's no presumption
that DEP always has the ability to make
the statutory finding it needs to make.
But there is this presumption in 9.312,
there are presumptions that come
with the Municipal Harbor plan.
Is that right?
-: Not quite, your honor.
Kafker: Go ahead.
-: But your question puts the finger
on the right presumption.
9.312 says the department shall presume
if it satisfies the performance requirements
in 9.51,
9.52
and 9.53.
It shall presume.
-: What are those?
Again, I can't keep all these numbers straight.
When you say if it satisfies those,
are those the Municipal Harbor plan or the opposite?
-: Excellent.
They are neither.
-: Neither. That's helpful.
(all laughing)
-: 9.51, 9.52 and 9.53 contain
the three performance standards
under the Waterways regulation
under which the department assesses
whether a specific use of tidelands-
-: Let me ask a more pointed question.
Is there a presumption created by Municipal Harbor plan?
-: No.
-: There is none.
And so when we go through all these,
when all those law clerks go through
these massive number of regulations,
they're not gonna find any presumption
of public purpose associated with Municipal Harbor plan?
-: Correct.
The department-
-: Because then I'm a little confused by the brief,
the Amicus brief that's filed by,
I think it's the former commissioners,
that says DEP could rebut the presumption
of the project serving a proper public purpose.
So long as to prevent overwriting detriment
to the public interest.
I'm confused where these presumptions are coming from.
-: So, if I may explain, your honor.
-: Yeah, go ahead, 'cause this is hard.
-: 9.51, 9.52 and 9.53
are the three overall
performance standards that the department has set forth
in the Waterways regulations.
9.51, it said, a project, to paraphrase,
must conserve the ability of the tidelands capacity
for water dependent uses.
9.52 says that those particular tidelands
must utilize the shoreline for water dependent uses.
9.53 says that if it involves Commonwealth tidelands,
those particular Commonwealth tidelands,
that's a definition,
must be activated year round for public use.
Each of those performance standards
contain the generic provisions.
Let's set aside the alternative standards for a moment.
-: Yeah, but I don't want you to do that,
because for us to boil this down,
we're trying to understand how much weight
the secretary's approval of the Municipal Harbor plan
plays in this process.
Because the legislature clearly thought DEP,
they're the number crunchers.
They're the environmental protectors to the legislature
in many ways.
And they clearly thought they were gonna sign off
on this thing.
And something has been seated to the secretary.
How much I can't discern 'cause the briefs are albeit
all terrific, are complicating this for me.
From what I get from what you're saying
is the secretaries enhances what can be considered,
but doesn't in any way change what DEP does.
That doesn't seem right to me,
but I can't put my finger on why that's not the case.
-: So, it's incumbent upon the court
to parse the regulations carefully.
Let me just take...
Let's stick with the performance standards
in 9.51 to conserve the-
-: I don't want you to...
I want you to focus on the secretaries.
Is there any deference owed to the secretary?
Is there any?
Is the secretary just basically sitting there
like an obolus with no effect on DEP?
-: No, absolutely not.
So, and the secretary's approval of an alternative standard
for a specific Harbor area changes that particular standard,
which is otherwise a generic standard,
changes that particular standard for the purposes
of determining whether projects
in that Municipal Harbor plan are eligible
for a license.
That's the legal effect of it.
Now, as a practical matter,
a lot of work goes into
determining whether it is a-
-: I get the part that a lot of thought goes
into municipal Harbor plans.
But as Justice Wendlandt asked earlier, okay,
so the secretary says 600 feet is eligible.
Can the DEP still say, well, 600 is eligible,
but I still don't like it.
I don't think they can, right?
-: The department of Environmental Protection
does not parse projects in that particular way
when it gets to licensing determination.
It looks at specific applications for specific uses
of tide lands in their totality, every aspect.
-: Right, and everything about it is okay.
I love the plan.
The project is great.
But it's 600 feet, that's why I'm rejecting it,
can I do that if I'm the department?
-: If you have a good basis in the record for doing so,
you find that the,
you find that-
-: But even though the regulations say shall waive,
I can still say, I love everything about this plan,
it's great for the Waterways,
it's consistent with my public trust,
but 600 feet is just too much, I reject it.
Sanders: Well, it's never going to be consistent.
The department's never going to say,
it's inconsistent with the public trust
because the department can't say that.
So that is the ultimate backstop that department has.
-: Can I use a 600 foot redefined standard
as the basis for a rejection?
-: Let me put it this way, too tall,
if it meets either the generic standard of 55 feet
or any alternative standard,
too tall is simply never a standard that DEP applies.
They apply the overall standard of whether
the public benefits to the specific project
in those tidelands outweigh the public detriments.
If DEP-
-: Well, can the height be one of those public detriments?
-: Absolutely.
Simply yes.
-: So it can be,
but if the secretary has said 600 feet is good,
can I then as the department say, no, it's not.
-: The department just doesn't go
about the overall public benefit determination,
the weighing of the entire benefits of a project.
-: That's what gets to my earlier question,
which is, the Municipal Harbor plan can jump in
on other factors too, right?
There's no limitation on how many of those factors
the secretary can waive, right?
-: Well, there are eight, and the way the secretary
has to weigh in on them is cabined and guided
and curtailed by the regulation.
-: It's guided by the political process
and it has to be in the Municipal Harbor plan,
but give me another factor, pick one,
just give me one.
-: Setback.
-: Okay, can the Municipal Harbor plan say,
I waive the setback in that place
because there's a walkway that goes the other way around it.
Can I waive that one?
Can the Municipal Harbor plan waive that?
-: And-
Kafker: Yes or no?
-: All sorts of. Yes.
-: Start with a yes or no, and then qualify.
-: Yes.
What does that mean then?
That means that a project, which-
-: Give me another one.
Give me a different one.
So we got setback, height, give me a different one.
-: Overall footprint.
-: Okay, overall footprint.
Can the Municipal Harbor plan blow that provision up too?
Yes.
-: I will not accept the premise
that it's called blowing it up.
-: True enough.
(all laughing)
My bad choice of words.
Wendlandt: Increase the envelope.
-: Yes.
-: So it can do all of those things.
Sanders: In eight defined ways.
-: Under a different standard.
-: But then doesn't that raise an issue
of whether DEP is being taken out
of the primary regulatory role if the Municipal Harbor plan
can take over each one of those factors.
I'm not saying it's a bad thing.
I'm not saying it's not good policy
to have coastal management in the city
and everyone else involved.
I'm just not sure that's what the legislature had in mind.
-: To be clear.
Let's go back to what the legislature,
the only conditions that the legislature posed
to DEP when it gave DEP the authority
to promulgate regulations and design the regulatory system
was that DEP makes the ultimate written determination
about whether the public benefits of a specific use
in tidelands outweigh the detriments.
-: But the legislature did not do what DEP did,
which is create a regulation
that allowed the Municipal Harbor plan
to waive particular aspects of this.
DEP did that itself.
Before the secretary called the head of the DEP and said,
let's draft up regulations and do this, right?
-: Again, I'm seeking to persuade you
that what the secretary approves
when the secretary approves alternative standards
for a Municipal Harbor plan is not the equivalent
of what the legislature has charged the department with.
-: But isn't it a practical equivalent?
I mean, I know you're doing your best
to try to thread this needle.
But if in DEP's ultimate analysis of whether or not
the pros outweigh the cons, that they look at it
and all of a sudden they just miraculously find
that you can go from 55 feet to 600.
They just miraculously find that we can waive the setback
to whatever the Municipal Harbor plan.
Isn't it all in the same stew.
You can recast what DEP is doing,
but you can subsume everything that is found in MHB,
can't you?
-: No, your honor.
-: Well, you can't put the height variance up to 600 feet
into DEP's calculus of whether the pros outweigh the cons?
-: Oh, I'm sorry.
Then I may have misunderstood your question.
Absolutely.
-: Sure, and if you go back to Justice Kafker's
other criteria, setback.
If the MHP says, you know what, in this particular case
we're gonna waive the generic provisions
and we're gonna find that you can build
right up until the waterline.
And then all of a sudden, when DEP goes to do their pros
and cons say, you know what,
it's gonna be to the public benefit
and outweigh the detriment
to go right up into the waterline.
Isn't that what we're afraid of?
Isn't that what the concern is here?
That it just becomes a fe de complet
when it comes out of the MHP.
-: I understand that's the fear.
I'm here to convince you that it's not.
When the secretary approves an MHP,
after an extensive public process,
they set alternative standards
those are not standards that the DEP uses
in making its public benefit determination.
Georges: I got you.
-: They are only standards which determine which projects
are even eligible for a chapter 91 license
in the first place.
Under the generic standards, if a project is 56 feet,
it never hits DEP's desk.
And so, and the question is the same
when the secretary approves an alternative standard.
If the alternative standard for the Harbor garage site
is 601 feet, it never hits the department's desk.
If as long as it's under 600 feet forward,
then it goes into the chapter 91 licensing system,
or a specific use goes
into that chapter 91 licensing system.
Then DEP has reserved for itself the ultimate authority
to determine, under chapter 91, section 18,
whether the public benefits to the tidelands
outweighs the public detriments to the tidelands.
I get it that there has been
an extensive administrative record that's been developed
around the pros and cons of 600 feet.
That's all for the department's fodder.
That's all for any potential challenge
to a particular project.
That can be used,
and DEP will use that information,
that administrative record,
in making the ultimate determination
about whether it's eligible for a license.
But the secretary's approval of an alternative standard
is not a defacto public benefit determination.
It doesn't make any particular use of those tidelands
that meets those standards a fe de complet
or a rubber stamp.
There is an extensive chapter 91 process
that looks at all aspects of that specific use.
-: Thank you.
We're gonna move on to Attorney Pile.
-: May it please the court, Jeffrey Pile
for Katharine Armstrong and the other Harbor towers parties.
I'll be splitting my time with Mr. Shelley here today.
In chapter 91, the legislature delegated its sovereign power
over the tidelands to DEP.
I think we all agree that DEP does not have
the statutory authority to sub-delegate that power
to anyone else, including the secretary.
That is what has happened here.
And the secretary does not have a delegated authority
to act to regulate structures in tidelands,
or to make the required statutory findings
that the legislature has assigned to DEP
in chapter 91, section 18.
-: Why are they making the determination as opposed to,
if you look at the regulation, providing guidance.
-: These Municipal Harbor plans do not provide guidance,
your honor.
They say repeatedly in section 9.34 and 9.51
that DEP shall apply the substitute dimensional requirements
in assessing any chapter 91 license.
It shall apply the substitute lot coverage
and open space determinations by the secretary,
shall apply the secretary's decisions
about distance from the shore.
Shall apply the secretary's decisions
about pedestrian access.
Shall apply it's determinations about interior
and exterior public space and shall apply
the secretary's determinations about building height.
There is nothing in this regulatory scheme,
that makes a Municipal Harbor plan mere guidance.
There is nothing that makes it advisory.
-: So counsel, if I understand opposing counsel's argument,
I think what he's saying through the envelope analogy
is that all the secretary's doing is creating the new gate.
So there's a default that DEP had, let's say 55 feet,
but the secretary is just gonna say, well,
you can apply if you're 600 feet.
It doesn't mean that you're gonna get licensed,
but we're just gonna increase that gate.
Whether it's the setback or the height or the footprint,
the secretary is gonna give you a new number,
a new numerical standard.
And that doesn't mean that each project
gets approved by DEP, it just opens the doors
to maybe more projects,
consistent with whatever the secretary is determined,
is consistent with the Harbor plan.
So why is that an improper delegation?
It doesn't give any project a license,
it just opens the doors a bit consistent
with the secretary's judgment.
-: One of the core things that chapter 91 section 18 requires
the department to do is to make a determination
that a particular project serves a proper public purpose,
and also will bring about a net public benefit,
a greater public benefit to the public than a detriment
to the public in terms of its access to the tidelands.
And I direct your honor's attention to section 9.312
of the regulations,
which say that the DEP shall make these
proper public purpose determinations,
and then goes on to say, the department shall presume
that the proper public purpose determination, quote,
is met if the project is a non-water dependent use
that complies with 9.51,
which includes Municipal Harbor plan substitutions.
So in other words, the department
must under these regulations presume
that this statutory standard is met
if a project conforms to a secretary's
dimensional substitutions in a Municipal Harbor plan.
That is not guidance.
That is a tying of hands of the DEP
in making its discretionary determination.
-: It would be a tying of hands if it said
the department must approve.
I mean, it sounds like it's just a presumption
based on a rational judgment, one might say,
that this extensive process
described by your opposing counsel ended up with something
that was proper.
-: Yes, your honor, but there's more.
The regulation provides,
the presumption may only be rebutted
in extremely narrow circumstances
that have nothing to do with the protection of public lands,
these tidelands for public uses of recreation, fishing,
following navigation.
It says in 9.313, it says, the presumptions
may only be overcome if the basic requirements
of 9.31 have not been met,
which include things like the building code.
Or a clear showing is made by a municipal state regional
or federal agency that other requirements are needed
to prevent overriding detriment to a public interest.
These are extremely narrow circumstances
under which these presumptions can be rebutted.
And they cannot notably be rebutted by a private degree.
-: Isn't that standard inconsistent
with what DEP statutory standard is supposed to be,
which is when you add these presumptions,
this overriding detriment seems to be inconsistent
with the regular finding they're supposed to make
under the statute, about be benefits versus detriments.
-: Yes, your honor.
That is the crux of our argument.
-: Okay, so, say you're right.
We also have 30 years of title problems out here.
Is this a prospective rule?
The AG tries to get us out of this.
If you're correct, I take it
we are unsettling the title of a huge amount of property
in the Commonwealth, just a gigantic amount,
unless this rule is prospective.
Address that a little bit.
We tend to not like to have rules that have been in place
for 30 years, that haven't been challenged,
and then all the building on the harbors
and most of the cities in Massachusetts
are suddenly gonna be under a cloud.
So how do we deal with that if you're right?
-: Well, your honor, number one,
I'd say it's important to remember
that this is the legislature's delegation of authority here.
The legislature can retroactively decide
that all the previous Municipal Harbor plans are okay
in its view.
-: I don't think we want to count on that.
So how do we address the problem that if you're correct,
should this rule be a prospective rule
or a retroactive rule?
'Cause that's a significant problem here,
the AG suggests that in the property context
this should be prospective.
Do you agree with their analysis?
-: Your honor, I've reviewed their analysis
and the cases they rely on,
and I cannot say that I agree with it necessarily
because that analysis relies on cases
that have to do with a new interpretation of a statute
based on, where the court has reversed its prior rulings
on the meaning of a statute.
That isn't the case here.
What we have here is an ultra vires regulation
that was invalid when it was enacted.
In the moot case this court faced the same issue.
The moot one court was looking at this regulation
that exempted landlocked tidelands from all licensing.
And it decided that the regulations were invalid
and ultra vires, much as we're asking the court to do today.
One of the things that the moot court did.
-: Of a much narrower problem, right?
That was non-water dependent,
I can't remember.
But moot was, we're talking about everything approved
pursuant to Municipal Harbor plans.
-: Well, your honor, actually, I think the moot decision
was an earthquake in tideland's law
because there were structures that had been built
without chapter 91 licenses,
in reliance on the regulatory exemption.
And suddenly there's a building
that needs a chapter 91 license and doesn't have it.
And that is frankly a greater problem
than what we're dealing with.
-: But, I don't know about that.
This seems like higher on the Richter scale
as far as an earthquake.
And I guess that you've got something like 17 plans
over the course of 30 years,
there's been no challenge, there's financing in place.
No one's questioning title issues.
Why is it that the decision couldn't be prospective
if you're right?
-: Well, your honor, but certainly speaking
for my clients here who have the specific issue.
-: How about statute limitations,
would there be statute of limitations?
-: Yes, your honor.
We understand that in fact, there is a statute
of limitations on a challenge to a chapter 91 license
that is 30 days.
And so anybody who has been granted a chapter 91 license
under these old Municipal Harbor plans,
anybody who has had an opportunity to challenge those,
including by raising the issues
we are raising before you today
has long since lost that opportunity.
And the briefing from Amici raised the specter of clouds
on title, but none of them have really articulated
with specificity just how this issue would harm them
in the future, especially where there is no.
-: So, I don't know if you're a property lawyer or not,
but so the statute limitations is expired,
but the permit should not have been issued,
does that affect your title?
How does that work?
-: Your honor, I don't have a view
on whether that affects title prospectively.
All I've looked at is the briefs of groups like NAIOP
and others who have this issue well in mind
and none have explained just how this would affect title.
There is a licensure issue at stake at most.
-: So how does NAIOP address the title issue?
Do they address it at all?
I can't remember.
I've read a bunch of these Amicus briefly.
-: For the most part, my memory of the NAIOP brief
is that it mostly echoes what the state defendants argue
about the merits, but then goes on to say,
this would affect a lot of Municipal Harbor plans
and a lot of other landowners
and people who have relied on these chapter 91 licenses
under MHPs in the past.
And we certainly agree that that is...
I would be concerned if I was one of those title holders,
but that, and certainly we cannot necessarily assume
that the legislature will come in,
but the legislature did come in after moot.
The legislature came in after the moot one decision
and decided, this regulation has been struck down,
we need to act in order to provide certainty
to people who have built structures on land
that now have tidelands.
And the fact that there might need to be a legislative fix
has not in the past, I believe, dissuaded this court
from declaring what the law is.
Whether or not this can be prospective,
I simply don't see a prospective ruling
that is supported in the court's precedence
on prospective rulings in the past.
Typically the court declares what the law is
at the time the decision is made.
-: If we go backwards for a minute,
let's say that you're right about DEP
from the legislation chapter 91, section 18,
they have the responsibility.
They have the public trust in the tidelands.
They have the ultimate licensing determination.
But why isn't it that they cannot delegate to the secretary
with Coastal Zone Management assistance?
A part of the evaluation and even incorporate
a different standard to assist them
in performing that obligation.
In other words, why isn't this reasonable delegation
from the initial statutory framework?
-: For two main reasons, your honor.
One is that section 18 of chapter 91 precludes it.
It says the department shall make the determination.
But beyond that, the legislature has never authorized
the secretary to act to protect the public trust
in tidelands through making dimensional determinations
or anything else.
And if there's one thing that's clear from 200 years of law
from this court,
it is that there must be an express delegation of authority
to a person or entity to act to protect the public trust
in the tidelands.
And there is no such statute granting that to the secretary.
-: What do you mean anybody in the provision
that makes the secretary the administrator of the tidelands?
-: Section 18 B of chapter 91.
The section 18 B of chapter 91 again,
came about as a result of the moot one decision,
and it gave the secretary a particular limited role.
The secretary shall make public benefit determinations
of tidelands projects, including those
within landlocked tidelands,
and its actions shall not affect anything else
under this chapter, meaning chapter 91
or under the regulations.
And it shall not delay the DEP's issuance
of a chapter 91 license.
The legislature could not have been clearer
in section 18 B, that the secretary's sole role
was to make a public benefit determination
that goes into the record of the DEP licensing decision,
but does not otherwise impact it
unless the DEP decides, in its own discretion,
to take something into consideration
that the secretary said.
The legislature knows how to delegate explicit tidelands
regulatory authority to other entities.
It has done so in a number of different statutes,
the case law is replete with examples where it has done so.
-: The alliance for Nantucket Harbor case,
Nantucket sound case, I think is an example with this,
an explicit delegation.
-: Yes.
And that is an example where the legislature said
that the energy facility citing boards shall issue a permit
that shall be a composite of all permits
that would otherwise be required
to license a particular structure in the tidelands.
And the court ruled that that included
a chapter 91 license in that case,
because the project was proposed for the tidelands.
But that is very different from section 18 B,
which simply says that the secretary can issue
a public benefit determination that goes into the record.
And in fact, another example was raised
by the former secretaries in chapter 21 A section 4C,
about oceans develop,
this other statute that applies
to water based areas far outside of harbors.
The secretary is given expressly in that statute,
passed in 2008, authority act to protect the public trust,
but it doesn't extend to the tidelands.
The tidelands is ruled by DEP and section 18.
The legislature knows how to delegate
the public trust authority to the secretary
and to anybody else, it has not done so in section 18 B.
-: Now, the awareness issue,
one of the briefs suggest the legislature's
been sort of informed of this, these regulations,
at least indirectly, how do we address that?
I know there's this sort of legal fiction
about their omniscience, but they have been presented,
these regulations in different forms, right?
-: The regulations, we are led to believe,
were submitted to the legislative entities,
the committees that the statute requires them
to be submitted to.
All we would say to that is that all that would suggest
is acquiescence by silence.
And what the court requires is express delegation
of authority and express, a tacit acceptance
is the opposite of express.
Express is required under this court's prior precedence
and simply allowing regulations to go into effect without,
by the way, seeing the underlying
Municipal Harbor plan regulations.
We have no indication that 901 CMR23 at all,
was sent up to the legislature.
So they didn't necessarily know
what the secretary was doing there.
But regardless of that,
tacit acceptance is not express approval.
Buddy: Any other questions?
Great.
Thank you very much.
-: Thank you.
-: Okay, Attorney Shelly.
-: Ma'am chief justice, members of the court, Peter Shelly,
representing the CLF plaintiffs in this appeal.
I have so many thoughts.
(all laughing)
I think this is really,
actually a pretty straightforward case.
Was the secretary acting to further public trust rights
in tidelands, what he approved in the alternative standards,
in the MHP.
And if he was acting to further public trust rights,
was he expressly authorized to do so?
As my colleague said, there is, I dunno,
several hundred years of sort of consistent,
never challenged case law in the Commonwealth
going back to the inhabitants of the Commonwealth
versus the habitants of Charlestown in 1822
that says you have to have express authority
whenever you're acting to further public trust rights.
Clearly the secretary thought he was acting
to further public trust rights,
it's throughout the Municipal Harbor plan decision.
And despite hundreds of papers and addendum after addendum,
not one person decided to one piece of legislation
that says that the secretary is authorized
to exercise any authority in the context
of DEP's licensing jurisdiction.
And that's exactly what's happening here.
Justice Wendlandt, your question about the 600 feet?
It's an exaggeration.
We at CLF had just many problems
with the Harbor garage site,
which had three exemptions substitutes rather than six,
but that's a perfect example.
In that case, when a developer comes in,
it's not just a building envelope,
it's maybe useful to think of these as zoning,
in the zoning context.
It's not a good metaphor completely,
but there are zoning standards and they set the table,
as my brother said, for what can happen
in a particular district.
And then in the zoning context,
usually there's a variance procedure
that's set up by law that you can go up
to a higher authority and get a variance
from the standards that are set by the zoning code.
The same, more or less system is happening here,
DEP has promulgated specific meets and bounds and heights
and distances and widths that it says
meet the proper public purposes established
by those three performance standards.
-: What do we do with the fact that,
I mean, I take that Municipal Harbor plans
are also authorized by the legislature, right?
-: No, legislation never even heard
of any Municipal Harbor plan as far as I know.
-: Municipal Harbor plans are totally the creation of,
they don't have any statutory authority whatsoever.
Now CZM has statutory authority, I assume, right?
-: CZM has statutory authority to implement
the Massachusetts Coastal Zone Management program,
the federal-
-: And the Coastal Zone Management program
doesn't expressly, it's all by regulation,
how it integrates into the Municipal Harbor plans,
there's no statutory intersection with it all?
-: It doesn't, those regulations don't really talk
about the Municipal Harbor plan.
They look at other Coastal Zone Management issues,
not these licensing measures.
-: So the Municipal Harbor plan and the whole origin of it
is basically a political process
giving the cities more say over how they are developed.
Where does it?
-: It's not a bad idea.
-: No, it's certainly not a bad idea.
-: Not a bad idea, it's just not authorized
in its current form.
-: It's authorized only by regulation then.
-: Only by regulation.
Kafker: Only by DEP regulation
or also by CZM regulation and-
-: By both.
There's a set of EOEA regulations that lay out
the procedures for how the secretary's gonna make
the determinations that they make
under the Municipal Harbor plan.
And in the DEP regulations, there are references to the fact
that there is this Harbor plan that will be used
to modify various provisions and DEP regulations.
When those regulations were sent to the legislature,
for whatever weight that carried back in 1990,
the Municipal Harbor plan regulations
that really define what the secretary's role are,
were not even promulgated yet.
When you look at the transmission letter,
that's in the file the DEP sent to the legislature,
they acknowledge that they hadn't even developed
the MHP program through the rule making process.
-: That's not gonna be dispositive though.
The fact that the legislation doesn't say
Municipal Harbor plan, isn't dispositive.
What we're trying to figure out is whether or not
the statute authorizes DEP to be able to look
to the secretary for their take on this issue,
through the prism of a different standard
when they're making their licensing determination
and doing their job as it relates to the public trust
in tidelands.
So does the statute allow DEP to authorize the secretary
to chime in like this?
-: The statute does not expressly authorize that.
And
there really is no basis in the law
for having that mechanism there in a binding capacity.
There are provisions in the MHP program that are advisory,
they're called amplifications or they're different phrases
where the secretary can suggest, can provide guidance,
which is what I think your honor's talking about,
guidance to DEP.
And it says, DEP should take that into consideration
when it's issuing a license.
We're not talking about those provisions,
and judge Davis was not talking about those provisions.
He was talking about the 600 foot rule that said,
it's in guidance, it's you have to approve...
If everything else is satisfactory
under your regulations, and the only issue is,
should there be a 600 foot building there
instead of the 55 foot building
the DEP regulations would allow,
is that legitimate?
And the answer to that's no.
So that's just not authorized anywhere
to have the secretary bind DEP like that.
And to make the point of how bound DEP is-
-: If it weren't a public trust case,
is it because it's a tidelands case
that this regulation is an improper delegation?
Could DEP do this somewhere else?
I mean, tidelands, you all three of you are arguing,
it requires various express authorization
and empowerment provisions.
But could DEP do this elsewhere and sort of kick
some of its responsibilities to the secretary,
if it weren't a tidelands case?
Would it be an improper delegation otherwise?
-: I think it depends on the particular statute in mind,
but I would say, probably yes.
-: Probably could.
So it's a narrower-
-: It's really this case law that has called out
this particular sovereign power that the legislature has
that can only be exercised through a delegation
that's expressed by anybody, a municipality,
the secretary, DEP, they all could do that.
-: Is there anything in the legislative history
that explains why DEP has been given?
I mean, I have recollections
from old state government fights
that DEP is sort of the tiger in this area.
But is there anything in the legislative history
that explains, look, we really want DEP doing this,
DEP's special expertise at environmental or any,
when we go through the legislative history on this,
which seems to be there's more than usual,
are we gonna find anything?
-: The only two things I think you'll find
are the Senate bill that was considered
in the opinions of the justice's case,
which was the tidelands case.
And in that bill, the justices were asked
whether or not a law that gave the secretary
of environmental affairs authority to relinquish
or take other actions with respect to tidelands
could be done, could be enacted legitimately
with the the past law.
And the court said, yes, you could do that.
You could certainly designate and delegate
that power to the secretary.
They did not do that, however.
When they passed chapter 91, just a year or two later,
then that Senate bill was on the floor.
The secretary is nowhere to be seen.
In fact, the second time you'll find the secretary pop up
is in the legislation around section 18 B,
which was added after moot.
And there, the legislators said,
the secretary has these powers
under the public benefit determination,
but the secretary's jurisdiction there has nothing to do
with DEP's licensing jurisdiction.
And at the time the secretary adopted regulations
implementing that public benefit authority
that it had been given.
And in the secretary's own interpretations
promulgated at the time,
it said that nothing that the secretary is going to do
under this public benefit determination
is going to have any impact,
impair in any way DEP's licensing jurisdiction.
So I think the only instances you'll find, your honor,
are ones where the legislature has been quite specific
in what it has done.
And it has not decided to move toward the secretaries
having any authority to further public tidelands interests.
-: When you say that it binds DEP, it doesn't bind DEP.
DEP still could, in the face of all of this say, well, no,
we've got the ultimate licensing responsibility
and we're not going to license this.
And I think the legislative history question
that Justice Kafker's asking goes along with this,
is has it happened in 30 years?
Is there anything in the legislative history
that recognizes how challenging that would be for DEP to do?
-: Challenging to?
-: Say, well, we're gonna license anyway.
-: Ignore the secretary in those circumstances?
-: Yeah, we're gonna license this anyway.
I know what you've said, Madam secretary,
but we're gonna license this anyway.
Is there anything in the legislative history,
because it's not true that DEP is bound.
DEP has the licensing determination under the statute.
They can say no.
-: Not as to that particular measure
in the performance standards.
And if that's not clear in the DEP regulations themselves,
which notwithstanding the attorney General's brief
says shall so many times that it's hard to believe
that it was a may.
But beyond that, if you look at the decisions
by the office of alternative dispute resolution,
OADR, there are two cases, the fan pier case,
and the win case that were appealed,
where licenses were appealed.
And the people challenging the license
wanted to raise the height issue.
Said, what about the height issue?
We don't like the height
the DEP approved in that license
and the administrative officer at DEP
and the commissioner approving the decision,
said height is not on the table in any challenge
to a DEP license.
That is the secretary's rule.
DEP did not make that rule.
That 600 foot was not promulgated under DEP's authority.
There is no basis for challenging it
in an appeal of the license.
So, not only DEP, but the public is completely bound
by the secretary's decision
and has really no right of judicial review of it.
Other than this, I suppose.
(all laughing)
-: Are there any other questions?
Okay. Thank you.
Shelly: Thank you, your honor.