- Office of Attorney General Maura Healey
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Chloe Gotsis
Boston — Attorney General Maura Healey announced today that she has notified the United States Fish and Wildlife Service of her office’s intention to file a lawsuit against the federal government to confirm the state’s ownership of thousands of acres of submerged lands bordering the Monomoy National Wildlife Refuge (Monomoy) in Nantucket Sound.
For generations, the state has responsibly managed and regulated the submerged lands, the waters above them, and the related fisheries and resources for the benefit of both the natural resources and the public. The AG’s expected lawsuit 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 shell fishing industry,” AG Healey said. “After more than 70 years of uncontested ownership and maintenance of the submerged land and the waters above them in Nantucket Sound, we are taking this action to reaffirm our commitment to protect these valuable Cape habitats for future generations.”
On March 31, 2016, the federal government finalized a Comprehensive Conservation Plan and Environmental Impact Statement for Monomoy, where it claimed to own and control not only the 3,599 acres of land above the low water line that it has historically managed, but also an additional 4,005 acres of submerged land and the open waters in Nantucket Sound that is not part of the National Wildlife Refuge. The federal government’s claim appeared for the first time in 2014, following 72 years of undisputed stewardship and ownership of these lands by the state.
“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.”
In 1944, the federal government filed a declaration of taking in federal court to acquire approximately 3,000 acres of land to establish the Monomoy National Wildlife Refuge, but the court filing did not grant the federal government ownership of “submerged land” lying in Nantucket Sound which would have added an additional 5,934 acres. 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.
The AG’s Office filed extensive comments on the U.S. Fish and Wildlife Service’s draft Comprehensive Conservation Plan, along with its final plan, pressing its long-held view that the federal government did not acquire any of the submerged land in Nantucket Sound through its eminent domain action in 1944.
Todays’ announcement of AG Healey’s intent to file suit is the first litigation-related step in the process of resolving the issue of ownership over the land and bringing to an end the dispute over management of the area. Under the federal Quiet Title Act, a state seeking to challenge the federal government’s claimed ownership of land must notify the head of the federal agency with jurisdiction over the lands in question of the state’s intention to file suit at least 180-days prior to filing the suit. If the parties are unable to resolve the dispute during that period, the AG’s Office expects to file a lawsuit in the U.S District Court for the District of Massachusetts seeking to establish the state’s ownership of the submerged land in Nantucket Sound.
This matter is being handled by Assistant Attorney General and Senior Appellate Counsel Seth Schofield of AG Healey’s Energy and Environment Bureau.
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