Tribe Sues Conservation Commission to Preserve Wetlands

The Mashpee Wampanoag Tribe is suing the town’s Conversation Commission, claiming the commission did not consider tribal aquaculture resources when issuing an order to the owners of Gooseberry Island identifying the types of wetlands in the area, according to court documents.

The lawsuit, filed Oct. 5, alleges that an order of resource area delineation issued by the commission to Gooseberry Island Trust was based on “fundamentally flawed and inaccurate information,” omitting two specific resource areas: coastal dune and coastal beach, or tidal flats. Along with the tribe, the suit names 17 tribe members as plaintiffs.

The tribe has used those resources, excluded in the commission’s order, for its shellfish grant, and has “fished, harvested and carried out shellfishing aquaculture activities” in those areas since time immemorial, the suit says. The tribe first obtained that shellfish grant license in 1977.

State regulations require that anyone seeking to build on or around wetland areas must submit a plan listing and delineating the types of wetlands present on a piece of land, or receive a “negative determination of applicability or a final order of conditions” from the state or the local conservation commission, according to the Massachusetts Department of Environmental Protection’s website.

The tribe worries that the owners of Gooseberry Island plan to build on the 3½-acre island at the end of Punkhorn Point Road, which it says will negatively affect its shellfishing resources. In the suit, the tribe is asking that the commission rescind its order.

“The whole town is going to suffer if a house goes up on that island,” George “Chuckie” Green, the tribe’s director of natural resources. “If they were to put a septic system there, I don’t see how that would serve the purpose that the oysters are serving now.”

In 2015, the Conservation Commission unanimously denied the building of a proposed one-lane bridge to the island in Popponesset Bay after months of dispute between the island’s owners, conservationists and the tribe. The trust had previously asked the town Zoning Board of Appeals for permission to build a single-family home there but in October 2013, the board voted against the request, citing concerns over access to the home in case of fire or other emergency, prompting the request to build the bridge and the involvement of the Conservation Commission.

The tribe has been working with the town to propagate shellfish to combat the longstanding water quality problem facing the town’s estuaries and lakes, and any development on Gooseberry Island could undermine that effort, Green said.

Because the tribe’s shellfish hatchery is located next to Gooseberry Island, “it is even more important” that the town and the tribe continue to protect the health of its bays, said Jessie “Little Doe” Baird, vice chairwoman of the tribal council and one of the plaintiffs in the suit.

“Our bays and natural resources are so important to the tribe that we will continue to protect this area, and all areas within our region whenever we can,” she said.

Andrew McManus, conservation agent with the commission, said he doesn’t agree with the tribe’s claim the town erred in delineating the area’s wetland resources, but acknowledges their right to protect those resources.

“They may be under the impression ... that those particular resource areas aren’t going to be considered when it comes time to permitting for development,” he said. “But just because the applicant didn’t ask for them doesn’t mean they don’t exist.”

By Tanner Stening, Cape Cod Times