Characterization of cases/holdings
In a unanimous, populist decision that navigates closer to
immortality the public's rights in current and former tidelands,
Joseph V. Arno v. Commonwealth,1 required the
Massachusetts Supreme Judicial Court to consider the interplay
between the commonwealth's system of land registration2
and the public's longstanding rights in geographic areas known as
The salient question of first impression was whether registration
of a parcel of land may extinguish the public's "trust rights" in
"tidelands."3 The SJC concluded registration cannot
extinguish these rights, because neither the Land Court nor the
attorney general has been legislatively authorized to do
This note reviews Arno
, as amplified by an immediately
subsequent and more pragmatic decision by a divided SJC,
Alliance v. Energy Facilities Siting Board
which concluded the Legislature could allow one state agency to
"stand in the shoes" of another, usual agency in reviewing
tidelands-related license applications, without meeting the
Arno-affirmed criteria for the permanent disposition of public
Key underlying definitions of terms
Before recounting the recent cases, it is helpful to pause to
define the terms used frequently.
First, the land below the high water mark "since the Magna Carta"
has been impressed with "public rights designed to protect the free
exercise of navigation, fishing and fowling" and collectively known
as "public trust rights."7 These rights are currently
held in trust for the people by the Massachusetts Legislature
which, in usual circumstances, statutorily delegates issuance of
licenses for uses and structures on or in tidelands to the
Massachusetts Department of Environmental Protection ("DEP"),
pursuant to Mass. Gen. Laws Chapter 91.8
Second, "tidal flats" refer to "the area between mean high water
and mean low water (or 100 rods from mean high water, if
lesser)9; Third, "submerged lands" refers to "land lying
seaward of flats."10 Together, tidal flats and submerged
lands are referred to as "tidelands."11 Finally, "filled
tidelands," while not defined in the Arno case, are
discussed therein (and comprise much of the City of Boston, for
Common procedures or processes for Chapter 91 licensing in relation to these cases
In practice, legal proceedings on the subject of public trust
rights tend to concern filled tidelands, because few landowners or
developers dispute the continuing public trust rights to access
currently flowing tidelands. During proceedings to license
structures or uses on tidelands, the state tends to focus on
protecting water dependent uses' capacity to use waterfront sites
and, of late, the general public's recreational access for
strolling along the waterfront.
In general, the public is entitled to "fish, fowl and navigate"
along currently flowing tidelands between the high and low water
marks. While a subject of great controversy and misunderstanding
among beachgoers, simply strolling or beach bathing is not legally
within the general public's rights on privately owned, currently
flowing tidelands in Massachusetts.
Regarding filled tidelands, the state defines structured public
walkways, such as "harborwalks" along the water's edge, as "water
dependent uses" and generally requires them to be built right at
the water's edge at a developer's expense, whereas restaurant
seating areas for dining near the water are defined as "non-water
dependent uses," and generally are required to be set back
substantially from the water's edge. Future litigants on this
subject will find ample reference material in both the
Alliance majority and dissenting opinions.
Alliance's majority and minority distinctions of Arno's holdings
Less than a month after releasing the Arno decision
requiring express delegation of authority to do away with public
trust rights, a divided SJC decided the Alliance case with
the Chief Justice Margaret H. Marshall authoring the dissenting
opinion and Justice Margo Botsford the majority. Marshall
vociferously differed with the majority on the adequacy of the
legislative delegation of authority to decide tidelands matters,
which she distinguished from other delegations by referencing,
among other things, the fiduciary nature of the Legislature's
responsibilities in tidelands matters.13
Arno's fundamental holding overturns the lower court's
holding and concludes that not even the Land Court or the attorney
general can "divest the public's rights" in tidelands, absent an
adequate delegation of authority to do so from the Legislature. The
case also reaffirms that any successful legislative delegation of
authority to extinguish public trust rights would be required to
comply with the prerequisites articulated in Opinions of the
Justices.14 The Arno decision did not elect to
emphasize any particular prerequisite, other than to include the
unusually assertive observation that an adequate delegation of
authority for permanent extinguishment of public trust rights "may
not be possible."15
Arno also holds that public trust rights do not need to
be included in Land Court registration certificates to remain
extant, and that the Legislature is acting as a fiduciary
for the public, not as an owner, in exercising its authority. In
practice, this means the frequent prior use of "reservation of
waterfront rights" need not be included in the registration
certificate to be nevertheless effective, because the rights
already exist and the Land Court has no authority to take them
If Arno navigated the existence of public trust rights
closer to immortality, the majority opinion in the
Alliance case built intervening breakwaters, with
ostensible channel markers for proceeding safely onward. By making
it easier for the Legislature to provide for other authorities to
make delegated decisions regarding public trust rights, however, it
is syllogistic that it will be easier to dilute these rights or
prioritize their actualization differently than prior state
Reading both cases together, one concludes it is indeed not
possible to extinguish public trust rights, once they have been
found to have ever existed, without an express legislative
delegation of authority to do so. Arno alone would make
that express delegation very difficult to accomplish. But read with
the Alliance majority, indirect expressions of intent to
delegate authority would seem to suffice, particularly where the
issue is which commonwealth entity has delegated authority to act
with respect to public trust rights as opposed to anyone (other
than the Legislature) having authority to extinguish them entirely.
And, as noted in both the Alliance majority and dissent, the
influence of current, politically favored movements, such as
development of renewable energy resources, can realign perceptions
of what matters in actualizing public trust rights.
The delegation of authority issues addressed in Alliance
were decided in the context of the politically charged subject of
transmitting energy through state waters from what is slated to be
the nation's largest in-water wind energy facility in federal
waters in Nantucket Sound, a contextual fact both the majority and
the dissent acknowledged as influential in all relevant
The Alliance majority and dissent also both agreed that
express delegation of authority to make decisions regarding
tidelands was necessary, but disagreed as to whether the required
delegation criteria had indeed been met by the specific
legislation, which makes no mention of public trust
In practice, the two types of delegated authority fuse when it
comes to a particular project or geographic location. Put
colloquially, once "the decider," whomever that may be, has made a
final decision about what is and is not an adequate actualization
of the public's trust rights in tidelands, that's it for many
generations to come. Most current Chapter 91 tidelands licenses
bear extremely long terms.
And, as with many matters, who decides often determines what is
decided. Once a commonwealth license to use or build on tidelands
has issued in final form by any state agency, be it the usual
Department of Environmental Protection or the unusual Energy
Facilities Siting Board, the public's trust rights are treated as
adequately actualized and are not available for debate or
reconsideration again until termination or extinguishment of the
license, usually many lifetimes hence.
Also, as a matter of human nature, once the licensed project has
been built, subsequent generations acclimate to the changed
environment and find it nonsensical, if not aberrant, to suggest
extant public trust rights merit substantial current
Possible future litigation
There are a few other jurisprudential gems embedded in the
extremely carefully written, useful and pro-public-trust-rights
Arno decision by the Hon. Robert J. Cordy.19
- The Arno decision recognizes that licenses to fill
tidelands are generally revocable, and subject to a condition
subsequent that they be used for a "proper public purpose." The
exact scope of the public purpose "likely encompasses at least the
conditions found in the licenses issued when the land was
- This statement, hovering between dicta and a mandate,
poses substantial challenges for both property owners and the
Commonwealth, where very few filled tidelands are still being used
for exactly the same purposes as when they were first filled.
Practitioners providing legal opinions on tidelands compliance
matters may want to make note of the revocability of a license to
fill, while observing that, to date, the Commonwealth has rarely
revoked an otherwise extant fill license solely for a change in the
use of the property. It is not yet known how Arno will impact the
Commonwealth's practices in this regard. Once such a site comes to
the Commonwealth's attention, a new license for ongoing uses and
structures (or proposed new ones) is usually required, at which
time one is expected to demonstrate a continuing "public purpose"
for the fill, as well as provision for modern-era public access.
The recent articulation of "public purposes" made by the Secretary
of Energy & the Environment and published at 301 Mass. Code
Regs. 13.04 is informative, in starting one's analysis of adequate
public purposes for previously filled tidelands on which the use
has changed since the license or legislative grant to fill, subject
to condition subsequent, became effective. These new regulations
correspond to the statutory changes made in response to a prior
judicial decision and should be read in conjunction with the usual
Chapter 91 "Proper Public Purpose" requirements detailed at 310 CMR
- Arno observed that certain aspects of the public's
longstanding trust rights may remain in effect, even though they
are not referenced statutorily in Chapter 91 and may never have
been re-codified since finding "official expression in the Body of
Libertyes or early colonial statutes."21 The implication
is that it is possible for an assertion of public trust rights to
be made which is not codified in statute and for that assertion to
nevertheless meet with success in the courts, if sufficiently
supported by historic evidence. Or, in the inverse, that it is
possible for DEP to include in regulations public trust rights
which are not referenced in the authorizing statute but are derived
from the preceding historic legal authorities.
Practice implications of Alliance and Arno
As a practice note, the particular Arno matter is
remanded for Land Court to reconsider exactly which geographic
areas of the subject parcels on Nantucket Harbor were or are
tidelands and therefore continue to host extant public trust rights
(primarily a factual inquiry into historic tidal records). Locating
historic tide lines is itself an arcane expertise.
In general, counsel to any current waterfront parcel owner would
be prudent to arrange to have reexamined Land Court registration
decisions before assuming a pre-existing registration decision
remains valid with respect to an absence of public trust rights
(and the consequential absence of need to secure a Chapter 91
license from the commonwealth for structures or uses on the
Thus, contrary to the usual practice with respect to property
which has passed through Land Court, prior Land Court registration
cases involving current or former tidelands are now suspect, with
respect to extant public trust rights. In such a specialized area
of law, it is not difficult to imagine the misreading of
Arno (intentional or accidental) resulting in even factual
findings concerning the delineation and location of tidelands being
newly challenged or "spooking" potential lenders. A careful reading
of Arno should result in all prior factual findings by
Land Court remaining unchanged and unchallengeable, such as a prior
factual delineation of the specific location of the historic high
water, from which one defined the existence at any time of public
Post-Arno and Alliance, it remains entirely
possible to methodically provide a respectable, reliable, useful
legal opinion on the trust rights associated with any property.
What are truly at risk, however, and truly susceptible to
challenge, are prior registration cases in which public rights were
said to be extinguished by virtue of the registration proceedings,
having once existed. The distinction practitioners should focus on
is whether the relevant Land Court action was deciding a factual
matter as to where tidelands were and were not, or a "policy"
matter as to whether public trust rights should or should not be
extinguished (as opposed to never having existed
Factual research as to the current and historic extent of tidal
influence on any particular parcel is usually well worth the
investment, unless one's client anticipates complying with current
state Chapter 91 licensing requirements using the state's current
presumptive jurisdictional delineation. In practice, the vast
majority of waterfront owners simply use the state's presumptive
jurisdictional line for tidelands, which is available by inquiry to
After ascertaining the state's presumed jurisdictional line, most
developers seek to meet the usual licensing requirements of 310
CMR. 9.00 et seq. in order to proceed to develop without
commonwealth opposition and delay. Some experts report that most
relevant registered land parcels already contain a waterways
encumbrance anyway, so the "practice problem" of public trust
rights re-emerging from old Land Court decisions should be limited
to rare circumstances.23
Neither Arno nor the Alliance matter had reason
to address the looming issue of sea level rise, anticipated in due
course but as yet unquantified in dimension, in relation to public
trust rights (nor do they address the constant and current issue of
changing tide lines and their resulting changes to otherwise
privately owned property). Arno makes it explicit that
"because actual high and low water marks can change over time, 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."24
It is also remarkable that the term "primitive" appears in the
cited Opinions of the Justices, supra at 900-901, and not
in the DEP regulations. The current statute legislatively defining
public trust rights (Mass. Gen Laws Chapter 91) states that the
public has rights in all tidelands, not just past tidelands at a
fixed point in time.
Thus, if over the decades, sea level in Massachusetts indeed
rises, the location of public trust rights should rise with it. The
current Chapter 91 regulations reflect this intention by the manner
in which "tidelands" are defined. (310 CMR 9.02.) Future litigants
may well seek to argue that once land has been registered, it
should not be possible for geographic changes in the extent of
tidal influence to newly encumber registered property with new
public trust rights, but such arguments face strong winds in a
leaky vessel. Such litigants will have to address the fundamental
principle of Arno that "public trust rights do not need to
be included in registration certificates" to
And, in addition to the statutory and regulatory references in
Chapter 91, many would also note an extensive line of cases
maintaining that as littoral boundaries move inward, away from the
sea, public trust rights move with them.26 It is worth
recalling that it is not title itself which is at risk in such
matters, but rather new obligations to the public, much like when
stormwater changes create wetlands on one's property and, as a
result, alter development rights.
In the end, Arno made clear that "title in tidelands is
in a special category, different from ordinary fee simple title to
upland property [and] the registration of title in tidelands does
not lead to the conclusion that [the property owner] owns the soil
at issue in unconditional fee simple title … . Rather, title in
tidelands remains subject to public rights (unless properly
A future case will likely address yet again whether an attempt at
extinguishment of public rights in tidelands has properly satisfied
the court's articulation of necessary legislative criteria.
Stakeholders in that case, whenever it comes to pass, will cite the
majority and the dissent in the Alliance matter, with both
containing ample channels to divergent results. Like the tide and
tidelands, the jurisprudence does not disappear, it evolves or
continues in changed form.
Jamy Buchanan Madeja, owner of Buchanan &
Associates, specializes in environmental law. She teaches and
testifies frequently on tidelands and other public interest
matters. She served as general counsel for Environmental Affairs
for Gov. William Weld. Her clients range from corporate development
entities to neighborhood associations and individuals. She is a
graduate of Yale University and Boalt Hall (U.C.
1457 Mass. 434 (2010).
2Mass. Gen. Laws ch. 185, §§ 26-56 (West 2010)
3Arno, 457 Mass. at 436.
5457 Mass. 663 (2010),
7Arno, 457 Mass. at 450.
8Mass. Gen. Laws ch. 91 §§ 1 et. seq. (West 2009)
12Joseph V. Arno v. Commonwealth¸ 457 Mass.
13Alliance v. Energy Facilities Siting Board,
457 Mass. 663 (2010),
14383 Mass. 895, 902-906 (1981).
15Arno, 457 Mass. at 453.
16Alliance, 457 Mass. 670 (2010).
17Mass. Gen. Laws ch. 164, §§ 69-69S (West 2009).
18See, e.g., Moot v. Dept. of Environmental
Protection, 448 Mass. 340 (2010); and the subsequent legislative
19This author served as Gov. William F. Weld's asst.
secretary and general counsel for the then-Executive Office of
Environmental Affairs at the time the Hon. Robert J. Cordy served
as his chief legal counsel for the commonwealth.
20Arno, 457 at 456.
21Arno, 457 Mass. at 454 n. 22.
22Arno, 457 Mass. at 437.
23See, e.g. Brief of Defendant-Appellant at
29, Arno v. Commonwealth, 457 Mass. 434, (SJC-10559) Seth Schofield
for Attorney General Martha Coakley).
24See Opinion of the Justices, 383 Mass. 895,
900-901, 424 N.E.2d 1092 (1981); Arno, 457 Mass. at 436-437.
25Arno, 457 Mass. at 11.
26See, e.g. Lorusso v. Acapesket Imp. Ass'n,
Inc., 408 Mass. 772 (1990); Lorusso v. Acapesket Imp. Ass'n, Inc.,
1989 WL 1183738 (Mass. Land Ct. 1989).
27Arno, 457 Mass. at 455.