State finds no insider influence in Ice House Pond plan review

By Nelson Sigelman - April 26, 2007

A lawyer representing the Executive Office of Environmental Affairs (EOEA) this week said that he found no evidence of inappropriate influence in the state's review of the Martha's Vineyard Land Bank's Ice House Pond property in West Tisbury.

Kenneth Kimmell, EOEA general counsel, concluded that Mark Mattson, a limnologist in the state Department of Environmental Protection, did not influence the state's treatment of the Land Bank plan. His opinion is contained in a one-page letter dated April 23, addressed to Land Bank chairman Thomas Robinson of Tisbury.

Mr. Kimmell also responded to a second issue raised by the Land Bank in a set of letters sent to EOEA Secretary Ian Bowles more than six weeks ago. Mr. Kimmell wrote that Tim Simmons, a state restoration biologist whom the Island public conservation agency claimed was biased against the Land Bank, would be replaced by another staff member in the Natural Heritage and Endangered Species Program (NHESP) for future management plan reviews.

Reached at home Tuesday evening, Mr. Robinson said he would not comment on the letter until he had an opportunity to discuss the EOEA response with his fellow commissioners at their weekly Monday meeting. Mr. Robinson said he was grateful for the EOEA reply and looked forward to opening the property to the public as soon as possible.

Mr. Kimmell's letter is a response to two letters dated March 5, from the Land Bank commissioners to EOEA Secretary Ian Bowles over the signature of Mr. Robinson.

One letter asked the secretary to reconsider restrictions that would prevent the public from swimming in the pond at the same time that riparian owners use it for a variety of recreational and commercial uses.

In that same letter Mr. Robinson also asked the secretary to investigate the issue of "inappropriate influence" exerted during EOEA's review of the Land Bank property management plan, in particular the involvement of Mr. Mattson.

The subject of the second letter was an e-mail Mr. Simmons sent to Mr. Robinson dated Feb. 19 in which Mr. Simmons wrote, "The open hostility toward biological conservation by the Land Bank has been palpable for decades."

Mr. Robinson told Mr. Bowles that the comments by Mr. Simmons show "unreasonable and unfounded bias on his part" against the Land Bank. Mr. Robinson requested that Mr. Simmons no longer be allowed to review or comment on Land Bank management plans.

The Land Bank purchased the property in November 2004 through the use of a straw buyer in order to mask its interest from multiple sellers who, the Land Bank said, would likely not have sold to the public agency. The total purchase price was $2 million, and the sellers were Judith Lane at $1,250,000 and Nancy Schwenkter and Mary-Robin Ravitch at $750,000.

Once the purchaser was revealed to be the Land Bank, several sellers and property abutters mounted a vociferous campaign against the Land Bank and public use they deemed would be harmful, including swimming.

In letters to the Land Bank and EOEA, Mr. Mattson and his wife, Judith Lane, were highly critical of the Land Bank purchase and the management plan. Mr. Mattson, who works closely with state environmental personnel, repeatedly noted that his comments were those of a private citizen.

The suspicion of insider influence arose in 2005 when then-secretary Ellen Roy Herzfelder rejected the Land Bank's Ice House Pond plan, the first time in the public land conservation agency's then 19-year history that the state failed to approve a submitted management plan.

In a letter dated July 24, 2006, new EOEA Secretary Stephen Pritchard approved a revised property management plan, but for the first time in 20 years, EOEA approval came with a set of conditions.

Several of the requests and points made by Mr. Mattson and Ms. Lane in letters to EOEA emerged in the conditions, further arousing suspicion among Land Bank commissioners and local advisory board members.

In a letter dated June 20, 2006, Ms. Lane said the Land Bank was "a dysfunctional organization desperately in need of more stringent oversight by the state" and overly concerned with public access. She asked that any significant increase in access be subject to EOEA review and approval. In his list of conditions Mr. Pritchard required that the Land Bank seek EOEA approval for any increase of the four parking spaces allowed or the 20-visitor limit. Normally, such increases are a local matter.

No evidence

This week Mr. Kimmell wrote, "While I was not General Counsel at the time this decision was made, it appears that Mr. Mattson's comment letter was among several that the Secretary reviewed. After examination of the documents in our possession and discussions with EOEA staff who worked on the review, I see no evidence of inappropriate influence in EOEA's review of the management plan."

Mr. Kimmell addressed the complaints against Mr. Simmons without any reference to Mr. Simmons or the nature of his critical comments about the Land Bank.

He wrote, "With respect to your request to reassign the task of reviewing future Land Bank management plans to another staff member within the Natural Heritage and Endangered Species Program, Acting Commissioner Tom French has asked Sarah Haggerty at NHESP to take on this role."

Mr. Kimmell took the opportunity to remind the Land Bank that irrespective of any EOEA management plan review, under the Mass Endangered Species Act, the Land Bank must file a separate notice with Natural Heritage when it proposes a project or activity in "priority habitat," a designation that encompasses much of the Vineyard.

The burden is to prove that the proposed work, including the construction of a trailhead, trail work, and swim perch, will not impact rare species, such as box turtles or the New England bluet damselfly, or propose mitigation measures to offset any likely disruption.

The likelihood is that the property will not be open for public swimming this summer, said James Lengyel, Land Bank executive director.

The Land Bank management plan rejected in 2005 called for an initial six-vehicle trailhead and allowed limited fishing. The approved management plan reduced parking to four spaces plus one handicap space and eliminated fishing completely.

When the state's final approval has been received, the preserve will only be open in season from 6 am to sunset. Dogs are permitted on a leash but are not allowed a dip in the pond. Human swimmers, no more than 20 at a time, may enter the water only by means of a wooden swimming perch built out over the water in order to avoid stirring up sediment and protect the shoreline vegetation from swimmers, who must keep off the sandy beach previously used by property visitors. Launching of canoes and kayaks is not allowed.