Stone-Ashe v. Department of Environmental Protection

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13-P-489 Appeals Court

WENDY STONE-ASHE, trustee, 1 vs. DEPARTMENT OF ENVIRONMENTAL
PROTECTION & another. 2

No. 13-P-489.

Suffolk. January 14, 2014. - July 16, 2014.

Present: Trainor, Graham, & Agnes, JJ.

Trust, Public trust. Department of Environmental Protection.
Administrative Law, Agency's authority, Regulations.
Regulation. Real Property, Littoral property, Harbors,
Wharf, Restrictions. Harbors. Evidence, Expert opinion.
Witness, Expert.

Civil action commenced in the Superior Court Department on
October 29, 2010.

The case was heard by Bonnie H. MacLeod, J., on a motion
for judgment on the pleadings.

Richard A. Nylen, Jr., for the plaintiff.
Jo Ann Shotwell Kaplan, Assistant Attorney General, for the
defendants.

1
Of the Stone-Ashe Realty Trust.
2
Commissioner of the Department of Environmental
Protection.
2

GRAHAM, J. The plaintiff, Wendy Stone-Ashe, trustee of the

Stone-Ashe Realty Trust, 3 appeals from a Superior Court judgment

that affirmed a final decision of the Commissioner

(commissioner) of the Department of Environmental Protection

(department), which concluded that a seawall on the plaintiff's

property lies seaward of the historic high water mark and,

therefore, is under the jurisdiction of the department and

subject to public rights pursuant to G. L. c. 91. Substantially

for the reasons stated in the decisions of the commissioner and

the Superior Court judge, we affirm.

Background. 1. Statutory and regulatory framework.

"Under the public trust doctrine, the Commonwealth holds

tidelands in trust for the use of the public for, traditionally,

fishing, fowling, and navigation." Moot v. Department of Envtl.

Protection, 448 Mass. 340, 342 (2007), S.C., 456 Mass. 309

(2010). See generally Boston Waterfront Dev. Corp. v.

Commonwealth, 378 Mass. 629, 631-632 (1979) (detailing history

of public trust doctrine). In enacting G. L. c. 91, the

Legislature delegated at least some of its authority to preserve

and regulate the Commonwealth's tidelands to the department.

Moot v. Department of Envtl. Protection, supra at 347. General

Laws c. 91, § 1, inserted by St. 1983, c. 589, § 21, defines

3
We use the term "plaintiff" to refer to both the trustee
and trust.
3

"[t]idelands" as "present and former submerged lands and tidal

flats lying below the mean high water mark." "Private

tidelands" are defined as "tidelands held by a private party

subject to an easement of the public for the purposes of

navigation and free fishing and fowling and of passing freely

over and through the water." Ibid.

The department's jurisdiction extends only to the tidelands

seaward of the historic high water mark. "[B]ecause actual high

and low water marks can change over time, notably pursuant to

licenses to fill flats and submerged lands with soil, the

starting point for determining the public's rights in tidelands

(filled or unfilled) must be the historic, or 'primitive,' high

and low water marks." Arno v. Commonwealth, 457 Mass. 434, 437

(2010). Accordingly, the department has promulgated

regulations, as authorized by G. L. c. 91, § 18, defining the

historic high water mark and guiding the department's

determination of its location. See 310 Code Mass. Regs. §§ 9.00

et seq. (1996). The regulations define the "historic high water

mark" as "the high water mark which existed prior to human

alteration of the shoreline by filling, dredging, excavating,

impounding, or other means. In areas where there is evidence of

such alteration by fill, the [d]epartment shall presume the

historic high water mark is the farthest landward former

shoreline which can be ascertained with reference to topographic
4

or hydrographic surveys, previous license plans, and other

historic maps or charts, which may be supplemented as

appropriate by soil logs, photographs, and other documents,

written records or information sources of the type on which

reasonable persons are accustomed to rely in the conduct of

serious business affairs." 4 310 Code Mass. Regs. § 9.02 (2000).

It is uncontested that the harbor at issue has been altered by

fill and that the determination of the location of the high

water mark under the regulations dictates the department's

jurisdiction over the seawall at issue.

2. Procedural history. In 2006, the Harbor Access Group

(HAG), a group of Rockport residents, filed a request for a

determination of applicability as to whether the seawall at

issue (seawall-walkway) 5 is under the department's jurisdiction.

See 310 Code Mass. Regs. § 9.06 (2000). The department issued a

positive determination. The plaintiff appealed to the Division

of Administrative Law Appeals. HAG was allowed to intervene as

a party. An administrative magistrate conducted an evidentiary

hearing and a battle of experts ensued.

4
Upon a clear showing that a seaward migration of a
shoreline occurred as a result of natural accretion and was not
caused by the owner or any predecessor in interest, resort to
the historic high water mark is not required. 310 Code Mass.
Regs. § 9.02 (2000). There has been no such showing in the case
before us.
5
As the seawall at issue is topped by a walkway, we refer
to it as the "seawall-walkway."
5

The administrative magistrate adopted the opinion of the

plaintiff's expert, Erich Gundlach, a coastal biologist, and

recommended that the commissioner issue a final decision

reversing the initial determination of applicability. On

further review, the commissioner issued a final decision in

which she declined to adopt the administrative magistrate's

recommendation. The commissioner found Gundlach's approach

inconsistent with the department's regulations and adopted the

position of HAG's expert, professional surveyor Sean Ewald, and

the department's witness, Alex Strysky, a department employee

experienced in G. L. c. 91 jurisdictional determinations. The

commissioner concluded that the seawall-walkway is seaward of

the historic high water mark and, therefore, under the

department's jurisdiction. On the plaintiff's appeal pursuant

to G. L. c. 30A, § 14, a Superior Court judge affirmed the final

decision of the commissioner. 6 From the resulting judgment, the

plaintiff brought this appeal.

3. Facts. We draw the facts from the decision of the

administrative magistrate, supplemented by the commissioner's

decision and the administrative record where necessary. The

plaintiff owns a single-family residence located at 25 Dock

Square in Rockport and situated between Lumber Wharf to the west

6
HAG was not a party to the c. 30A appeal, and it is not a
party to the appeal before us.
6

and Middle Wharf to the east in a portion of "Old Harbor,"

variously referred to as the "whirlpool" and the "Bason" or

"Basin." A third wharf, White Wharf, 7 east of Middle Wharf,

comprises the northeasterly arm of the harbor. The seawall-

walkway at issue is a ten-foot-wide seawall topped with a cement

walkway that runs 108 feet across the plaintiff's property and

connects Lumber Wharf and Middle Wharf. Directly landward of

the seawall-walkway is another granite wall which one of the

plaintiff's experts has referred to as a "retaining wall."

The record reflects that the plaintiff's property derives

from property once owned by Ebenezer Pool dating back to 1746.

On April 28, 1746, the proprietors of Gloucester granted Pool

permission to construct a wharf on the southwest side of the

whirlpool opposite his "other wharf," likely White Wharf or a

precursor to it. They also granted Pool "all the land or flats

there needed for that service." 8 Nearly sixty-five years later,

on February 25, 1811, the Legislature established the Sandy Bay

Pier Company for the purpose of erecting a stone pier. Before

agreeing to transfer to the Sandy Bay Pier Company the property

which had been granted to Pool in 1746, Pool's grandson, also

7
The wharfs also are referred to as piers in the
administrative record. To avoid confusion, we use only the
terms "wharf" and "wharfs."
8
On March 25, 1743, at a commoner's or proprietor's meeting
held in Gloucester, Ebenezer Pool and others had been authorized
to build a wharf at the whirlpool.
7

named Ebenezer Pool, successfully negotiated to retain certain

uplands and flats. In a letter dated January 29, 1811, to the

committee appointed for the purpose of examining the request to

incorporate the Sandy Bay Pier Company, Pool withdrew his

objection, indicating that the incorporators had agreed to his

proposal to allow him forty feet of tidal flats adjoining his

seawall pursuant to a "plan taken January 26, 1811."

Thereafter, in an 1813 deed to the Sandy Bay Pier Company, the

grandson conveyed the land granted to his grandfather in 1746,

but reserved "that part of the said Premises which I have

heretofore enclosed and also forty feet of said flats running

towards the Sea from each corner of my Sea Wall as it now stands

and being about one hundred and six feet by the Sea Shore." The

plaintiff's property derives from the retained lot. Other than

the reference to an existing "Sea Wall" contained in the 1813

deed and 1811 letter, the record is devoid of further

information on the history of the two walls on the plaintiff's

property.

4. Expert testimony. a. HAG's expert. HAG's case

primarily rested on a plan created by the BSC Group, Inc. (BSC),

a surveying company, and the testimony of its professional

surveyor, Sean Ewald. 9,10 As explained by Ewald, BSC conducted a

9
Although the professional land surveyor who stamped and
signed the plan no longer worked for BSC and did not testify,
8

survey of the present conditions of the area at issue. It then

superimposed several historic maps on that plan, including maps

from 1819, 1832, and 1859. (None of the historic maps show a

seawall in or near the location of the seawall-walkway at

issue.) BSC determined that the 1819 map entitled, "Plan of

Sandy Bay Pieres Taken by William Saville Surveyor," which

clearly depicts the high water mark, most closely aligns with

current landmarks. When superimposed on the present location of

the seawall-walkway, the 1819 map places the high water mark

landward of the seawall-walkway.

b. Plaintiff's expert. The plaintiff's case rested

primarily on the testimony of a coastal geologist, Erich

Gundlach. 11 Gundlach pointed to the 1813 deed and its

description of a 106-foot-long seawall "by the Sea Shore." He

Ewald assisted in creating the plan and drafting the supporting
documentation under the supervision of the surveyor who signed
it. By the time Ewald testified before the administrative
magistrate, Ewald had become a professional surveyor. The
administrative magistrate noted that "[a]lthough this reduces
the weight I ascribe to Ewald's testimony, it does not render
the testimony incompetent."
10
The department presented the testimony of Alex Strysky,
but the administrative magistrate found that on cross-
examination Strysky appeared confused about benchmarks and
distances. The commissioner did not rely on Strysky's testimony
other than to note his testimony that seawalls have been
constructed seaward of the high water mark elsewhere in Rockport
and Boston.
11
The plaintiff also presented the testimony of a
professional surveyor, Richard Loud.
9

concluded from this deed reference and the similar length of the

seawall-walkway, which he measured to be 108 feet, that the

seawall described in the 1813 deed is the seawall-walkway at

issue in this case. He contended that the seawall-walkway would

have been placed at the high water mark because seawalls

constructed around 1813 were not intended to withstand wave

action. Thus, he concluded that the high water mark when the

seawall-walkway was constructed had to have been at the seaward

base of the existing seawall-walkway. While Gundlach originally

opined that the 1819 and 1832 maps do, in fact, show the

seawall-walkway, the administrative magistrate noted that

Gundlach opined that the seawall-walkway's absence from the 1819

map is a further indication that it is landward of the high

water mark because the 1819 map was focused on proposed

construction in the harbor and, if the seawall-walkway had been

seaward of the high water line, it would have been shown.

The only geological evidence Gundlach offered to support

his position came in the form of answers to questions posed by

the administrative magistrate. Gundlach testified that the

seawall-walkway and the retaining wall were built differently.

He testified that ninety percent of the seawall-walkway is

constructed of the same stones as the wharfs, suggesting it is

about the same age. Gundlach further testified that the

seawall-walkway is comprised of "large diorite, granite diorite
10

blocks" and that the seawall-walkway is four and one-half to

five feet high, 108 feet long, and approximately three feet

thick. He also noted that it is not possible to see what is

inside the seawall due to the concrete walkway.

Gundlach testified that the retaining wall was not made of

the same blocks as the seawall-walkway; he described the

retaining wall as "quite old [and made of] large . . . angular

blocks [that are] more disjointed . . . [and] not nicely in

place . . . [with] different rocks [of] different ages." He

testified that the retaining wall was about sixty to seventy

feet wide in front of the Pool property and that it continues

onto neighboring properties with some new and some old sections.

There was no evidence as to whether the wall was designed to be

or functioned as a retaining wall, rather than a former seawall

or a boundary for the original Pool lot. 12

Gundlach opined that the 1819 map was a preliminary plan of

the wharfs and that, although the high water mark is accurate,

12
Gundlach pointed to two maps from 1924 and 1925 which, he
stated, "show a single seawall and separate landward retaining
wall that extends only on [the] historic Pool[] property and not
across the entire seafront." He also suggested the retaining
wall cannot be the historic seawall because it was not shown on
a 1925 plat survey of an adjacent property and, therefore, was
built after 1925. He did not reconcile this conclusion with
either his testimony that the retaining wall is "quite old" or
with the 1813 deed reference to the "corners" of the 106-foot-
long seawall, suggesting the seawall referred to in the deed
similarly does not continue past the corners of the property
reserved by Pool.
11

the map is inaccurate as to the structures as they had not yet

been built. He did, however, submit a plan overlaying current

conditions on the 1819 map and depicting the high water mark

seaward of the seawall-walkway in support of his position.

5. Administrative magistrate's and commissioner's

decisions. The administrative magistrate rejected BSC's

reliance on the 1819 map as he concluded that it was a

preliminary plan and not "the kind of evidence that reasonable

people are accustomed to rely on in the conduct of serious

business affairs." See 310 Code Mass. Regs. § 9.02. He

concluded that Gundlach offered a reasonable basis for his

opinion "that the existing seawall[-walkway] was built in an era

when seawalls were built at high water," and adopted Gundlach's

conclusion that the seawall-walkway was constructed landward of

the high water mark.

The commissioner, on the other hand, deemed Gundlach's

conclusion that the seawall-walkway was built at the high water

mark conclusory due to the absence of testimony related to "the

current high water mark in relation to the seawall, soil logs

which could show whether there is fill material behind the

seawall, or other support." In contrast to Gundlach's opinion,

the commissioner noted that the department's witness, Strysky,

had testified that there were seawalls in Rockport built seaward

of the high water mark. Moreover, the commissioner noted
12

discrepancies with current conditions and the plan submitted by

Gundlach, finding that on all other plans, the length of the L-

shaped Lumber Wharf was approximately three times the arm but

that Gundlach had depicted the length as only two and one-half

times the arm. Given this discrepancy, the commissioner did not

credit Gundlach's placement of the historic high water mark on

his plan.

In addition, the commissioner found that Gundlach's opinion

that the seawall-walkway was built at the high water mark and

that, therefore, the seaward side of the seawall-walkway forms

the historic high water mark was based almost exclusively on

Gundlach's conclusory premise that seawalls generally were built

at the high water mark around 1813. The commissioner reasoned

that "[t]his [premise] requires factual support as to how [it]

applies to this site, as there is no testimony related to the

current high water mark in relation to the seawall[-walkway],

soil logs which could show whether there is fill material behind

the seawall[-walkway], or other support. While it is possible

that the seawall[-walkway] was indeed built at the high water

mark and has remained at the high water mark for more than 250

years, the general [premise] that seawalls are built at the high

water mark is insufficient to establish that fact or to support

the [plaintiff's] direct case."
13

The commissioner credited BSC's plan, which was based on

the 1819 map and current conditions, reasoning that the

regulations require use of historic surveys and plans rather

than the position of existing structures to determine

jurisdiction. See 310 Code Mass. Regs. § 9.02. While

acknowledging that the 1819 map is not without ambiguity in

regard to shoreline features, the commissioner concluded that it

clearly depicts high water marks and aligns most closely with

current conditions.

Discussion. 1. Standard of review. "Under G. L. c. 30A,

§ 14(7), we review an agency's decision to determine whether it

was not supported by substantial evidence, was arbitrary or

capricious, or was otherwise based on an error of law." Ten

Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228

(2010) (Ten Local Citizen Group). "This standard is highly

deferential to an agency and requires 'according "due weight to

the experience, technical competence, and specialized knowledge

of the agency, as well as to the discretionary authority

conferred upon it."'" Ibid., quoting from Friends & Fishers of

the Edgartown Great Pond, Inc. v. Department of Envtl.

Protection, 446 Mass. 830, 836 (2006). "In determining whether

there is substantial evidence to support the department's

decision, 'we must carefully consider any evidence in the record

that detracts from the agency's conclusion,'" Ten Local Citizen
14

Group, supra at 231, quoting from DSCI Corp. v. Department of

Telecommunications & Energy, 449 Mass. 597, 606 (2007), bearing

in mind that "the party appealing an administrative decision

bears the burden of demonstrating the decision's invalidity."

Farrell Enterprises, Inc. v. Commissioner of Rev., 46 Mass. App.

Ct. 564, 572 n.15 (1999).

2. Issues on appeal. The plaintiff contends that the

commissioner failed to accord the proper deference to the

administrative magistrate's fact finding that rests on

credibility determinations. We disagree. "Under 310 Code Mass.

Regs. § 1.01(14)(b), the commissioner determines 'every issue of

fact or law necessary to the decision.'" Ten Local Citizen

Group, supra at 231. However, it is true that "when the

subsidiary findings [of an administrative magistrate] rest on a

'resolution of credibility questions (i.e., that a fact is true

because a witness testified to it and that witness is

believable), they should be entitled to substantial deference.'"

Morris v. Board of Registration in Med., 405 Mass. 103, 111

(1989), quoting from Vinal v. Contributory Retirement Appeal

Bd., 13 Mass. App. Ct. 85, 101 (1982). Even so, the

commissioner may reject subsidiary findings provided her

decision contains "a considered articulation of the reasons

underlying that rejection." Morris v. Board of Registration in

Med., supra, quoting from Vinal v. Contributory Retirement
15

Appeal Bd., supra at 101-102. See Ten Local Citizen Group,

supra at 231 ("If the commissioner rejects an [administrative]

magistrate's finding of credibility, it must be accompanied by

an explanation").

Here, the commissioner detailed the reasons she rejected

Gundlach's determination of the historic high water mark. The

commissioner did not find the plaintiff's expert untruthful and

did not reject a credibility determination of the administrative

magistrate. Rather, the commissioner found that the expert's

approach did not comport with the regulations' focus on historic

plans and data rather than existing conditions to determine the

historic high water mark. In addition, she found that some of

Gundlach's conclusions were speculative. "[A]n agency may

reasonably reject an expert's opinion . . . where there are

flaws in the methodology or assumptions upon which the opinion

depends or where the opinion is based upon conjecture or

guesswork." Pollard v. Conservation Commn. of Norfolk, 73 Mass.

App. Ct. 340, 350 n.10 (2008).

We agree with the commissioner that the general supposition

that seawalls constructed around 1813 generally were built at

the high water mark, even if accepted as true, is insufficient

to establish that the seawall-walkway in this case was built at

the high water mark. This is particularly true, here, where

there are two walls in close proximity to one another and
16

virtually no or only inconclusive historical evidence as to when

each was constructed. Indeed, the evidence supporting the

supposition that the seawall-walkway is the same seawall

referred to in the 1813 deed is exceedingly thin.

In his prefiled rebuttal testimony, Gundlach responded to

Ewald's contention that the seawall-walkway is not the same

seawall mentioned in the 1813 deed by stating only that "[t]he

106 f[ee]t [referenced in the 1813 deed] aligns with the

frontage of the Pool[ ] property" and that "[t]here is no

historic record of approval of additional seawalls in this

area." The record, however, does not contain approvals of any

of the wall structures on the plaintiff's property or other

similar construction in the area such that the absence of

approvals would render it more likely that the existing seawall-

walkway is the same as that referenced in the 1813 deed.

Similarly, that the length of the seawall that existed prior to

1813, the corners of which marked the width of Pool's reserved

property, is substantially the same length as the existing ten-

foot-wide seawall-walkway that connects two subsequently

constructed wharfs on adjacent properties proves little.

Moreover, at the hearing, Gundlach testified that ninety percent

of the seawall-walkway is constructed of the same type of stones

as those used in the currently existing wharfs, which, he

concluded, indicated they were constructed around the same time.
17

However, Gundlach asserted that neither wharf existed in 1813

and neither wharf is mentioned in the 1813 deed. Further,

neither the 1819 or the 1832 map even depicts Middle Wharf. If

the seawall-walkway at issue was constructed at the same time as

one or both of the wharfs it connects, it cannot be the same

seawall referenced in the 1813 deed. Indeed, Gundlach's

description of the quite old retaining wall consisting of

disjointed rocks is perhaps more consistent with Pool's efforts,

as referenced in the 1813 deed, to "enclose[]" his property.

Even were we to accept as a factual finding that the

seawall-walkway at issue is the same or is in the same location

as the seawall mentioned in the 1813 deed, that, as the

commissioner points out, is not enough to carry the plaintiff's

burden. The department's regulations require the department to

"presume the historic high water mark is the farthest landward

former shoreline which can be ascertained with reference to

topographic or hydrographic surveys, previous license plans, and

other historic maps or charts." 310 Code Mass. Regs. § 9.02.

Nowhere in the department's regulations is it suggested that the

location of seawalls, alone, accurately depicts historic high

water marks. 13 If this were the case, surely the regulations

13
Further, it is difficult to conceive, as Gundlach
speculates, that a map focused on the harbor and proposed wharfs
in the harbor that accurately delineates the low and high water
18

would have included that in the mechanisms delineated for

determining the historic high water mark. Accordingly, we

cannot say that the commissioner erred in requiring some

historical or geological evidence that the seawall-walkway at

issue was constructed landward of the historic high water mark.

Next, the plaintiff argues, in essence, that the

commissioner's decision was not based on substantial evidence as

it was error to credit the BSC's plan. It is true that the

commissioner's decision largely rests on the plan prepared by

BSC. The plaintiff's surveyor, however, confirmed that the

procedures employed by BSC to locate the historic high water

mark by overlaying the 1819 map on current conditions were

appropriate and that he would have employed similar techniques.

In addition, the plaintiff's coastal geologist testified that

the high water mark on the 1819 map is indeed accurately placed.

We recognize that both of the plaintiff's experts

nonetheless challenge the location of structures in relation to

the high water mark as shown on the BSC plan and further

question the BSC plan's general reliability, contending the 1819

map is a preliminary plan rather than an "as built" plan and

marks would fail to expressly depict a ten-foot-wide seawall
along the high water mark if one, in fact, existed.
19

does not reveal the scale used. 14 While it is not at all clear

to us that the title of the 1819 map, "Plan of Sandy Bay Pieres

Taken by William Saville Surveyor," or the map, itself, suggests

that it is a preliminary plan, we need not dwell on the issue

because the fact is that when superimposed on existing

conditions, the wharfs, particularly the adjacent Lumber Wharf,

line up very closely. Further, HAG's surveyor testified that

the minor inconsistencies would not change the location of the

high water mark shown on the 1819 map or its relation to the

wharfs.

The plaintiff's argument that any inconsistencies render

the 1819 map unreliable is unavailing. While the plaintiff's

surveyor suggests that the map is unreliable because we cannot

travel back in time to evaluate the work, that rationale would

apply to any historic map. The department, by regulation, has

determined that reliance on historic maps is appropriate. See

310 Code Mass. Regs. § 9.02 ("the Department shall presume the

historic high water mark is the farthest landward former

shoreline which can be ascertained with reference to topographic

or hydrographic surveys, previous license plans, and other

historic maps or charts"). Accordingly, based as it is on

expert testimony comparing the 1819 map with current conditions,

14
Despite the absence of a scale, the commissioner was able
to identify the flaws in Gundlach's plan by using percentages,
which should remain the same regardless of scale.
20

we have little difficulty concluding that the commissioner's

decision is based on substantial evidence and we discern no

error in the decision of the Superior Court judge upholding the

final decision of the commissioner.

Judgment affirmed.