This case involved Massachusetts Department of Environmental Protection (“DEP”) fees for fill placed in the Acushnet River in New Bedford pursuant to an 1806 statutory grant. The predecessor in interest of Trio Algarvio, Inc. (“Trio”) filled a wharf within its grant for a fish processing plant. DEP asserted that the public trust doctrine permits it to charge fees for such fill. The Appeals Court ruled in favor of Trio, resting its decision primarily on the historic decisions holding that owners of public trust land alienated by the Commonwealth before 1866 are not required to pay tidewater displacement and occupation fees when they fill in accordance with the terms of their grant from the Commonwealth. The SJC granted further appellate review and solicited amicus briefs.
NELF filed a brief in support of Trio, arguing that the statutory grant to Trio’s predecessor in title merely requires Trio to use filled wharves in conformity with public trust purposes, which it is doing. NELF argued that any displacement or occupation fees would be improper non-proportional exactions under the United States Supreme Court’s decisions in Nollan v. California Coastal Commission and Dolan v. City of Tigard. Those cases require that any property development fees be “roughly proportional” to the adverse impact of the proposed development. As the Commonwealth has already granted the right to develop, there is no adverse impact caused by the filling unless the filled land is used for an impermissible, non-public trust purpose. NELF’s brief also discussed the public policy importance of upholding state property grants.
On September 9, 2003, the SJC issued a decision holding that one of the fees, for tidewater displacement, was authorized because both the 1806 grant and the public trust doctrine reserved to the Commonwealth the right to impose later conditions on a tidelands grant as necessary to protect navigation. Because the fill on Trio’s tidelands displaced the flow of tide and adversely affected the navigability of the river, a compensatory fee was justified. A second fee for occupying the tidelands, however, would not be valid if in the original grant to Trio’s predecessor in title, the Commonwealth had transferred full fee title. The SJC remanded the case for determination of the nature of Trio’s title.