The Moshup legal win

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On Nov. 28, the Supreme Court of the United States ended a decades-long case involving 30 landlocked parcels off Moshup Trail in Aquinnah. The case had been brought by the Bear Realty Trust and the Gorda Realty Trust, which included landowners James Decoulos and his wife, Maria Kitras, who sought to establish access and develop the parcels, which had no deeded rights of access. Defendants included the town of Aquinnah, the Martha’s Vineyard Land Bank, neighboring landowners, and the Vineyard Conservation Society (VCS). From 1997 until last week, the case traveled back and forth from Land Court to Appeals Court. In April, the Massachusetts Supreme Judicial Court ruled (see box) that the plaintiffs could not establish access. The U.S. Supreme Court’s decision last week not to hear the case essentially upheld that ruling.

The decision was considered a significant and far-reaching victory for the town of Aquinnah and for Island conservation organizations including the VCS. Brendan O’Neill, executive director of that organization, adapted this essay from the most recent society newsletter last summer, to explain the complex case and the larger context in which it unfolded.

Land conservation on Martha’s Vineyard sometimes seems to move as slowly as the glacial processes that created this special Island. The long-running legal drama over the protection of ecologically priceless heathlands at Moshup Trail is a case in point.

Over 20 years ago, the work at Moshup Trail to acquire land for conservation began, proceeding one small parcel at a time. This painstaking process — assembling a grid pattern of lots superimposed upon the rolling moors and wetlands — is rooted in the fascinating land-use history of the local community.

Before 1870, as far as the law was concerned, there was no town at the western tip of our island. In a place populated primarily by descendants of the island’s First Peoples, there existed only what the Massachusetts legislature called the “district of Gay Head.” The native residents had no U.S. citizenship, and were regarded as “involuntary wards [of the state],” theoretically under its guardianship. The residents, however, had refused to accept the 1828 act providing for appointment of such guardians. The result, according to an 1849 state document, was that “the division of their lands, and indeed the whole arrangement of their affairs … were left to themselves.”

This included a decidedly different attitude toward land tenure, rooted not in the English system of metes and bounds, but rather in the notion of shared rights. U.S. citizenship was finally granted to all Massachusetts Native Americans in 1869. The following year, the town of Gay Head (renamed Aquinnah in 1997) was incorporated, with the state legislature creating a process by which the new citizens could petition to have the common lands divided up among themselves.

Partition of the lands into a rectangular grid of more than 500 lots was completed in 1878. Reflecting the preexisting communal system of land tenure, most lots, with notable exceptions, did not include an easement to provide access. It was presumed that people would continue to move freely across the new property boundaries, making easements unnecessary.

Thus, when the Vineyard Conservation Society (VCS) launched our campaign at Moshup Trail to save the last of the world’s coastal heathlands, we were confronting a complicated legacy of land rights stretching far back into history. Through a combination of land gifts, conservation restrictions from private property owners, and acquisitions with public and private dollars, the Moshup Trail Sanctuary slowly began to take shape.

In May 1997, owners of several abutting landlocked parcels filed a lawsuit against VCS and others, seeking road access from Moshup Trail through the newly protected conservation parcels. We responded that our opponents were wrong in claiming that the original commissioners, as part of the 19th century partition of lands, intended to grant “easements by necessity.” The case wound its way from one venue to another, from the federal court in Boston, back to the Land Court, up to the Appeals Court, and back to the Land Court again. Last year, in a second trip to the state Appeals Court, a three-judge panel directed the lower court to begin drawing up actual easement lines on paper. The implications were profound — not just for conservation land, but for the owners and neighbors of all landlocked parcels across the town of Aquinnah. After 137 years of real estate transactions conducted under the previous interpretation, residents faced a new threat of access roads being built across their land, whether they granted permission or not.

We immediately moved to request review by the Supreme Judicial Court of the Commonwealth. The high court agreed to hear the case, and in a ruling last April, agreed with our position that the most recent appeals court interpretation was flawed on a number of grounds. In the final chapter of the case, a request to the U.S. Supreme Court to review the matter was denied on Nov. 28.

Hooray for what is a milestone legal and conservation achievement for Martha’s Vineyard. And while we reflect on the long process of getting there, it may be worth stepping back and recalibrating our frame of reference. Measured in human terms, the effort has been long and often torturous, but the Moshup campaign is just a blink of the eye when viewed against the backdrop of the nearly incomprehensible antiquity of the landscape we seek to save (and only “saving” it from ourselves, it should be said).

Most of the Vineyard landscape is built upon 10,000-year-old alluvial glacial sediment from the Pleistocene era. But the area around Moshup Trail is different. Older strata, Cretaceous clay and lignite from 100 million years ago, are upthrust and exposed at the surface. It’s one of the few places on Earth where this occurs, and the fusion of different soil types and microtopography explains, in part, the highly diverse mosaic of habitats that makes this a globally rare ecosystem. Protecting that unique heritage is why we will stay the course, remain vigilant, and always seek to expand the Moshup Sanctuary where opportunities arise. We welcome discussions with property owners who wish to further this important conservation task.

From the Massachusetts Supreme Judicial Court decision, April, 2016, upheld by the U.S. Supreme Court

“The primary question in this case is whether, at the time of partition, the parties intended to provide rights of access to the hundreds of lots divided from the common land. We conclude that at that time the parties did not intend to create easements. The plaintiffs argue that the historical context of the partition makes it clear the intention was to provide rights of access to the lots. However, we do not glean from the record the Legislature’s intention to create access rights for the purpose of dividing the common lands into saleable property. Furthermore, it was the commissioners who carried out the division of the common lands with input from the Tribe. At the time of the partition, the tribal custom admitted free access over all the land, as necessary. It is likely that the commissioners did not think that rights of access were necessary because it was provided by tribal custom. The fact that the commissioners had the knowledge and foresight to reserve peat rights and expressly grant access to a creek for certain Tribe members is evidence that the omission of access rights to the rest of the land was intentional. We conclude that the plaintiffs failed to meet their burden of establishing that the commissioners intended to create easements by necessity. For the foregoing reasons, we affirm the judgment of the Land Court. Judgment Affirmed.”