COMMONWEALTH OF MASSACHUSETTS v. ONE CHECK IN THE AMOUNT OF $480

FINNERTY, P.J. On December 4, 2019, Cheenulka Pocknett ("Pocknett"), a member of the Wampanoag Indian tribe, harvested and sold $480 worth of oysters from Green Pond in Falmouth on a day that commercial fishing was not authorized. He was issued a warning for a civil infraction in violation of 322 Code Mass. Regs. § 16.09. [Note 1] The Commonwealth commenced this libel action against the proceeds of the sale of the oysters it had seized. Pocknett claimed that, as a member of the Herring Pond Wampanoag Tribe, he was entitled to aboriginal rights to fish for sustenance. He claimed that the shell fishing activity in which he was engaged, and which prompted the libel, was in exercise of those rights. After a period of discovery, the

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court allowed the Commonwealth's motion for summary judgment and issued a decree in favor of the libel petition. Pocknett appealed.

Pocknett provides a lengthy historical argument in support of his aboriginal rights and their recognition under the law of the Commonwealth. Although the Commonwealth disputes some of Pocknett's contentions on the issue, including whether Green Pond was a place at which the Herring Pond Wampanoag Tribe historically exercised oyster fishing for sustenance, our determination in this appeal does not turn on the resolution of those issues. In fact, the court ruled that Pocknett is a member of the Herring Pond Wampanoag Tribe and is entitled to aboriginal rights to fish and hunt for sustenance. The court ruled, however, based on the record before it, that Pocknett engaged in the harvest here in his capacity as a commercial fisherman operating under his Division of Marine Fisheries permit and pursuant to regulations governing commercial shellfish harvesting, not in the exercise of aboriginal rights.

"All the relevant materials that were before the motion judge are also before us on appeal. In this posture, for purposes of our review, we look at the [motion] judge's decision to allow a motion for summary judgment, albeit useful, as a 'non-dispositive prelude.'" Simon v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 57 Mass. App. Ct. 350, 350 (2003), quoting Harrison v. Boston Fin. Data Servs., Inc., 37 Mass. App. Ct. 133, 133 n.1 (1994). "Appellate review of the granting or denying of a summary judgment motion involves the same standard employed initially by the trial judge." Pioneer Valley Fed. Credit Union v. Soja, 2002 Mass. App. Div. 193, quoting Marlyn Corp. v. Charter Oak Fire Ins. Co., 1999 Mass. App. Div. 62. We must review the motion judge's conclusions of law, including her interpretation of any applicable statutes. Sullivan v. Town of Brookline, 435 Mass. 353, 356 (2001).

So, the question before this Appellate Division is whether taking the evidence in the light most favorable to the nonmoving party, Pocknett, all material facts have been established and the Commonwealth is entitled to judgment as a matter of law. Rass Corp. v. Travelers Cos., 90 Mass. App. Ct. 643, 648-649 (2016). A party moving for summary judgment may satisfy its burden by demonstrating that the opposing party has no reasonable expectation of proving an essential element at trial. Once the moving party establishes an absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a material fact to defeat the motion. Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 328 (2014). The legal issue resolved here by the motion judge was that Pocknett's harvest was subject to the regulations governing commercial shell fishing. The undisputed facts are that Pocknett "collected a large quantity of oysters, bagged them for sale, tagged them with . . . commercial harvesting tags and sold them to a wholesale dealer." In doing so, the court concluded that Pocknett was acting as a commercial fisherman, not as an individual exercising his aboriginal right to perform sustenance. It is also undisputed that Pocknett harvested those oysters from Green Pond in Falmouth during a time when the pond was closed for commercial shell fishing. Pocknett's activities were therefore in violation of 322 Code Mass. Regs. § 16.09. We agree with the motion judge and the Commonwealth that sustenance in the context of the exercise of aboriginal rights to harvest shellfish does not include the commercial activity in which Pocknett engaged here. Sustenance means use of the resource as a food source for the sustenance of their families. See 1982

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House Resolutions recognizing and protecting the ancient and aboriginal claim of the Indians of the Commonwealth (adopted November 9, 1982).

Pocknett argues further that because he was issued a warning for the violation, there can be no forfeiture proceeding. Forfeiture under G.L. c. 257 is an action in rem and not against the person whose activity resulted in the seizure of the illegally obtained property. The Commonwealth's burden is to demonstrate probable cause to initiate the libel. Commonwealth v. One 2004 Audi Sedan, 456 Mass. 34, 38 (2010). If the Commonwealth sustains its burden, the claimant then has the burden to prove that the property is not subject of forfeiture. Id. at 37. The forfeiture proceeding is not dependent on criminal prosecution. "The Commonwealth may make this showing of nexus [between the property and the illegal activity] even where it lacks a sufficient factual basis to support a finding of guilt, or when a defendant is found not guilty at trial, or where the Commonwealth later dismisses or nol prosses the criminal complaint or indictment" (citations omitted). Commonwealth v. Martinez, 480 Mass. 777, 791 (2018). Pocknett's argument that the forfeiture proceeding must fail because he was given only a warning rather than a criminal citation is without merit.

Commonwealth v. Maxim, 429 Mass. 287 (1989) concerned a criminal prosecution of one claiming aboriginal rights who was harvesting clams for personal consumption and is distinguishable from this case. See id. at 288. Pocknett's attempt to shoehorn his commercial activity at issue here into the aboriginal rights to harvest shellfish for his own and his own family's consumption is unpersuasive.

We agree with the motion judge that as a matter of law Pocknett was engaged in commercial shell fishing activity and subject to the regulations governing the same. We therefore find no error of law and dismiss the appeal.