THE LANDING GROUP, INC. v. SCOTT STORY and ROSEMARY LESCH, as they are HARBORMASTERS of the TOWN OF ROCKPORT, and the COMMONWEALTH OF MASSACHUSETTS.

The Landing Group, Inc. (Plaintiff) initiated this action seeking declaratory relief concerning its rights regarding the flats, shores and uplands of certain parcels of land located at 175 Granite Street and Breakwater Avenue in Rockport (collectively, Locus), and its use of the adjacent basin at Pigeon Cove Harbor (Harbor), as authorized by a legislative grant: Statute 1830, chapter 34 (St. 1830, c. 34 or “the Pigeon Cove Act”). Plaintiff seeks several declarations with respect to its alleged rights under the Pigeon Cove Act against Defendants Scott Story and Rosemary Lesch, as Harbormasters of the Town of Rockport (Harbormasters), and the Commonwealth of Massachusetts (Commonwealth) (collectively, Defendants).

The primary issue at this juncture is jurisdiction. The Harbormasters and the Commonwealth both argued initially that Plaintiff’s failure to exhaust its administrative remedies with the Department of Environmental Protection (DEP) deprives the Land Court of jurisdiction. [Note 1] The Harbormasters also allege Plaintiff’s petition for a writ of mandamus, compelling the Harbormasters to take certain actions regarding the Harbor, is not an available remedy as their actions at all relevant times were discretionary. In response, Plaintiff argues that the Pigeon Cove Act expressly extinguished the rights of the Commonwealth and the public in the Harbor and parts of Locus. As a result, Plaintiff claims its proposed repairs and improvements slated for Locus are not subject to regulation, review or licensing under G. L. c. 91 (Chapter 91) and the regulations promulgated under that statute, 310 Code Mass. Regs. §§ 9.0 (Waterways Regulations). With that premise as its foundational predicate, Plaintiff seeks in this court a determination of its right, title and interest in the Harbor and Locus under the Pigeon Cove Act. Although Plaintiff pursued at DEP a license under Chapter 91, it argues several parts of that application fall outside DEP’s jurisdiction. [Note 2]

In addition to its jurisdictional argument, the Commonwealth argues, among other things, this case is not yet ripe for summary judgment because there are material facts in dispute. It alleges that a complete chain of title is required to establish Plaintiff’s title and rights, if any, and that Plaintiff has not provided all of the relevant deeds demonstrating it is the successor-in-interest to the Pigeon Cove Harbor Company, the entity originally granted rights under the Pigeon Cove Act. Only select portions of relevant deeds have been provided by both Plaintiff and the Commonwealth, and there is no adequate title examination in the record.

Procedural History

In Count I of its five-count Complaint, Plaintiff seeks a G. L. c. 249, § 5 writ of mandamus directing the Harbormasters to not interfere with Plaintiff’s alleged right to manage Pigeon Cove Harbor. In Counts II and III, Plaintiff seeks against the Harbormasters a declaratory judgment pursuant to G. L. c. 185, § 1(k) and G. L. c. 231A, § 2, determining Plaintiff’s rights in Locus and the Harbor under various deeds and the Pigeon Cove Act. In Count IV, Plaintiff seeks to quiet title to Locus and the Harbor pursuant to G. L. c. 240, § 6. Finally, in Count V, Plaintiffs seek a declaratory judgment against the Commonwealth, pursuant to G. L. c. 231A, § 2, determining Plaintiff’s rights in Locus and Pigeon Cove Harbor under various deeds and the Pigeon Cove Act, and specifically regarding title to the submerged lands in the harbor basin. [Note 3]

On December 23, 2014, the Commonwealth moved for an extension of time in which to file an answer or motions pursuant to Mass. R. Civ. P. 12, which was allowed in part, extending the deadline for filing to January 20, 2015. [Note 4] Plaintiffs moved for summary judgment on January 9, 2015. On January 12, 2015, the Commonwealth moved to stay briefing on Plaintiff’s summary judgment motion or, alternatively, to extend the briefing schedule until the Commonwealth’s motion to dismiss – at that point not yet filed – was resolved. The Harbormasters again joined the Commonwealth on this position, filing a statement of support for the motion to stay briefing. Plaintiff filed an opposition to the motion to stay briefing.

On January 16, 2015, the court issued an order, setting a hearing date for Plaintiff’s motion for summary judgment date on March 27, 2015. [Note 5] The Harbormasters filed a motion to dismiss Counts I, II and III of Plaintiff’s Complaint on January 20, 2015. The Commonwealth filed a motion to dismiss, pursuant to Mass. R. Civ. P. 12(b)(1) and (6), on the same date.

After further filings by all parties, the summary judgment hearing took place on April 13, 2015, at which all parties were heard. As of that date, the DEP had not yet issued its Final Decision on the Landing Group’s application for a license under Chapter 91. On October 29, 2015, the Attorney General forwarded to the court a copy of DEP’s Final Decision issued October 27, 2015 (DEP Final Decision). The DEP Final Decision was appealed to the Superior Court Essex County, where it remains pending. [Note 6] For reasons discussed below, Plaintiff’s Motion for Summary Judgment is DENIED, the Harbormasters’ Cross-Motion is ALLOWED, and the Commonwealth’s Cross-Motion is ALLOWED as to Count V, and DENIED as to Count IV, the court finding that material facts are in dispute.

Summary Judgment

“Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370–71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles it to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). Evidence submitted is viewed in the light most favorable to the non-moving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the “burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party's case.” Kourouvacilis, 410 Mass. at 711.

Each party submitted an individual statement of undisputed facts. Plaintiff filed a statement of material facts with its motion for summary judgment, many of which were disputed by the Harbormasters in their response. The Harbormasters and the Commonwealth also filed their own statements of material facts, to which Plaintiff did not respond. From these filings, the court has gleaned what it deems the undisputed material facts, as follows: [Note 7]

Statute 1830, Chapter 34 (Pigeon Cove Act)

1. In 1829, Charles Wheeler and others petitioned the Massachusetts Legislature (Legislature), seeking an act of incorporation for the purpose of improving Pigeon Cove Harbor, then part of Gloucester.

2. The Legislature passed an act in 1830 incorporating the Pigeon Cove Harbor Company and granting the company the power to “explore, and lay out one or more parcels of flats, shores and uplands, extending not more than fifty rods into the sea, nor more than one hundred rods above high tide mark, in any direction most convenient for them, without interfering with the rights of the “Pigeon Cove Pier Company,” for the purpose of making [said] Breakwater or Pier, and forming a basin within [Pigeon Cove Harbor]” (St. 1830, c. 34 or the Pigeon Cove Act). St. 1830, c. 34, s. 2.

3. The Legislature separately also authorized the Pigeon Cove Harbor Company to “ask and receive, for their benefit, for all vessels, rafts, or other articles, coming within the said basin, such dockage or rents, and such wharfage on all goods and property as shall be landed or taken off within their limits” as the Pigeon Cove Harbor Company “may determine to be necessary and sufficient.” St. 1830, c. 34, s.5.

4. The Legislature granted to Pigeon Cove Harbor Company the right to “contract, by the year or otherwise, with any person, as to the terms on which he may have the privilege of using said basin.” St. 1830, c. 34, s. 5.

Plaintiff’s Chain Of Title In The Essex South Registry of Deeds [Note 8]

5. On September 14, 1907, by deed recorded with the Essex South Registry in Book 1890, at Page 261, the Pigeon Cove Harbor Company conveyed to the Gloucester Safe Deposit and Trust Company – Charles Fisher as Trustee – five parcels:

“which said parcels comprise all the real estate of the Pigeon Cove Harbor Company, are conveyed to said grantee, all the buildings of the Pigeon Cove Harbor Company standing thereon together with all improvements on all and singular of the said property be they wharves or mooring or any improvements whatsoever, and also all rights and privileges of using and enjoying all and singular of the said premises for all purposes for which they have been used by said Pigeon Cove Harbor Company, and for any and all purposes that such premises may hereafter be used.”

6. On October 2, 1907, by deed recorded with the Registry of Deeds in Book 1896, at Page 28, Charles Fisher conveyed to the Rockport Wharf Company the five parcels described above:

“ a certain parcel of upland, wharves, flats, piers, docks and breakwater, situated on the easterly side of Main Street, in that part of said Rockport, called Pigeon Cove; bounded and described as follows: southerly by the southerly side of a private way; westerly by said Main Street; northerly by the northerly side of Water Street so-called, being a private way; and easterly by the Atlantic Ocean, together with all the privileges, easements, and rights of way belonging to the same, and subject to any rights of way now existing, meaning and intending to convey to the grantee all the rights privileges and appurtenances that formerly belonged to the Pigeon Cove Harbor Company, and which were conveyed to me by the said Pigeon Cove Harbor Company, but its attorney, at mortgage’s [sic] sale by deed dated August 22nd, A.D. 1907 and recorded in Essex So. Dist. Registry of Deeds, Book – Page –, to which said deed and record reference may be had for a more particular description of the granted premises. To have and to hold the granted premises, with all the privileges and appurtenances thereto belonging, to the said Rockport Wharf Company, and its successors and assigns, to their own use and behoof forever. And I do hereby, for myself and my heirs, executors and administrators, covenant with the said grantee and its successors and assigns that the granted premises are free from all incumbrances [sic] made or suffered by me, and that I will and my heirs, executors, and administrators shall warrant and defend the same to the said grantee and its successors and assigns forever against the lawful claims and demands of all persons claiming by, through or under me but against none other.”

7. By deed dated March 4, 1924 and recorded with the Registry in Book 2589, at Page 218, the Rockport Wharf Company conveyed to the Cape Ann Tool Company (CATCO) the following:

“[t]wo parcels of real estate located in said ROCKPORT, in Pigeon Cover therein, on the easterly side of Granite Street, and shown on a plan entitled: ‘Plan of property at Pigeon Cove, Mass., bought by the Cape Ann Tool Company from the Rockport Wharf Company,’ dated October 10, 1923, by Harrison P. Wires, Civil Engineer. [Description of two parcels follows]. The area of the granted premises is 58,120 square feet, more or less . . . . There is granted with said parcels of land all rights in the flats and all other privileges and appurtenances to said land belonging.”(italics added).

8. By deed dated December 28, 1986, recorded with the Registry in Book 8713, at Page 340, the Rockport Wharf Company conveyed to Edith J. Dean and Alvin S. Hochberg, Trustee of the CATCO Nominee Trust “two parcels of upland, wharves, flats, piers, docks and breakwater, situated on the easterly side of Granite Street, in that part of said Rockport called Pigeon Cove[.] Both parcels are conveyed together with all the privileges, easements, and rights of way belonging to the same, and subject to any rights of way now existing, meaning and intending to convey to the grantee all the rights, privileges and appurtenances which were conveyed to Grantor. Said premises being the same conveyed to Rockport Wharf Company by Charles E. Fisher by deed dated October 2, 1907 and recorded with the Essex South District Registry of Deeds, Book 1986, Page 28, with the exception of various prior conveyances from Grantor to Cape Ann Tool Company. It is expressly understood that the Grantor conveys and releases to the said Grantee by this deed all title to any flats or beach lying beyond the boundary line of parcels now owned or formerly owned by Grantor, it being the intention of the Grantor to convey hereby all title to flats and beach.” (italics added).

9. By deed dated December 28, 1986, recorded with the Registry in Book 8713, at Page 343, CATCO conveyed to the CATCO Nominee Trust ten parcels of land, more accurately described in said deed, and “[m]eaning and intending to convey hereby all of the premises and rights of way presently owned by the Grantor.”

10. By deed dated June 28, 1991, recorded with the Registry in Book 10850, at Page 98, Gardner H. Marchant, Jr. and Alvin S. Hochberg, Trustees of the CATCO Nominee Trust, conveyed to the Pigeon Cove Land Corporation “[t]wo parcels of upland, wharves, flats, piers, docks and breakwater, situated on the easterly side of Granite Street, in that part of said Rockport called Pigeon Cove[.]” The deed further stated “[b]oth parcels are conveyed together with all the privileges, easements, and rights-of-way belonging to the same, and subject to any rights of way now existing, meaning and intending to convey to the grantee all the rights, privileges and appurtenances which were conveyed to Grantor[.] It is expressly understood that the Grantor conveys and releases to the Grantee by this deed all title to any flats or beach lying beyond the boundary line of parcels now owned or formerly owned by Grantor, it being the intention of the Grantor to convey hereby all title to flats and beach.”

11. By deed dated June 28, 1991, recorded with the Registry in Book 10850, at Page 100, Gardner H. Marchant, Jr. and Alvin S. Hochberg, Trustees of the CATCO Nominee Trust conveyed ten parcels of land, more accurately described in said deed, and “[m]eaning and intending to convey hereby all of the premises, privileges and appurtenances and rights of way presently owned by the Grantor,” to the Pigeon Cove Land Corporation.

12. By deed dated August 21, 1997, recorded with the Registry in Book 14288, at Page 247, the Pigeon Cove Land Corporation conveyed to M-O-H Enterprises, Inc. (M-O-H) three lots, with each lot description stating the lot is “subject to and has the benefit of . . . [t]erms and provision of Chap. XXIV of the Acts of 1831 and Chap. CCXIII of the Acts of 1836” as well as the “[r]ights of the public and the Commonwealth of Massachusetts in any tidelands and provisions of Massachusetts General Laws, Chapter 91.” The deed further stated the Grantor intended “to convey hereby any and all ownership rights to land under Pigeon Cove Harbor which Grantor may have at the present time.”

13. By deed dated October 13, 1999, recorded with the Registry in Book 15989, at Page 212 M-O-H conveyed to Old Colony Maritime Center, LLC (Old Colony) three lots, with each lot “subject to and [with] the benefit of . . . [t]erms and provision of Chap. XXIV of the Acts of 1831 and Chap. CCXIII of the Acts of 1836” as well as the “[r]ights of the public and the Commonwealth of Massachusetts in any tidelands and provisions of Massachusetts General Laws, Chapter 91.” The deed further stated Grantor intended “to convey hereby any and all ownership rights to land under Pigeon Cove Harbor which Grantor may have at the present time.”

14. By deed dated September 27, 2012, recorded with the Registry in Book 31762, at Page 306, Old Colony conveyed the three lots to Cape Ann Tool, LLC (Cape Ann Tool), with each lot “subject to and [with] the benefit of . . . [t]erms and provision of Chap. XXIV of the Acts of 1831 and Chap. CCXIII of the Acts of 1836” as well as the “[r]ights of the public and the Commonwealth of Massachusetts in any tidelands and provisions of Massachusetts General Laws, Chapter 91.” The deed further stated Grantor intended “to convey hereby any and all ownership rights to land under Pigeon Cove Harbor which Grantor may have at the present time.”

15. Plaintiff took title to Locus by deed of Cape Ann Tool on June 13, 2014, recorded in Book, 33337, at Page 344.

Plaintiff’s Chapter 91 License Application – Initiated By Its Predecessor, Cape Ann Tool

16. A license amendment application was filed by then owner of Locus, Cape Ann Tool, in March 2013.

17. On June 2, 2014, DEP sent a letter to Mr. Rauseo, President and a Director of the Landing Group, stating that the proposed project plans had been changed since they were first made available during the public comment period in 2013 (on Cape Ann Tool’s application to amend its c. 91 license), and as a result another public comment period would be opened.

18. DEP held a public hearing on July 15, 2014, on Cape Ann Tool’s c. 91 license application to amend its license (Application).

19. Following the DEP hearing, the Harbormasters sent a letter to DEP, dated July 29, 2014. In this letter, the Harbormasters expressed concerns similar to those listed in a letter they had written to the Army Corps of Engineers on May 21, 2014. The Harbormasters stated their “greatest concern” was the navigation of the commercial and recreational boat owners in the Harbor.

20. On December 8, 2014, DEP issued its Written Determination, denying the Application. DEP determined that the proposed project failed to “comply with all applicable standards of the Waterways Regulations, including the special standards for nonwater-dependent use projects at 310 CMR 9.51-53. DEP further disagreed with Cape Ann Tool’s assertion that “the 1830 Act either removes the need for licensing or prevents the Department from subjecting this project to the entirety of 310 CMR 9.00, pursuant to 310 CMR 9.03(2) and 9.31(4).”

21. DEP found the proposed project site as defined in the Application included both filled private and Commonwealth tidelands and flowed private and Commonwealth tidelands.

Plaintiff’s Request To Harbormasters To Conduct Repairs

22. Plaintiff’s predecessor, Cape Ann Tool, contacted the Harbormasters in order to coordinate repairs along the portion of the Harbor it alleges it owned. On May 20, 2013, the Harbormasters received a letter from Michael Rauseo, on behalf of Cape Ann Tool, stating “it would not be safe or practical while we are performing the repairs to have moorings in those areas,” and continued “[w]e . . . would like to bring the barge into [the Harbor] at the 10 AM high tide on Thursday, May 23, [2013].”

23. Two days after receiving the letter, on May 22, 2013, the Harbormasters replied to Mr. Rauseo, explaining why they could not comply with his request: “[r]egretfully, we must inform you that, as a practical matter, the proposed relocation is not feasible on such short notice. Moreover, relocating the moorings immediately prior to the peak boating season, for a period of time that would include much of that season, would cause great inconvenience to the affected mooring permit holders and the Town, and may post safety hazards to users of the Harbor. We would ask you to consider, instead, whether this repair work could be undertaken from the Cape Ann Tool property, rather than by using a barge. Alternatively, if the work must be done by using a barge, we should begin to discuss now how this might be accomplished during the off-season.”

24. On May 23, 2013, Karen K. Adams sent a letter to Mr. Rauseo on behalf of the Army Corps of Engineers (COE) concerning Plaintiff’s proposed repair work and stating “[i]t appears this project may involve activities that require a permit from the Corps of Engineers.”

25. Mr. Rauseo responded to the COE letter via email on May 28, 2013, explaining the proposed repairs in further detail as well as the necessity of performing them as soon as possible.

26. On May 21, 2014, the Harbormasters sent a letter to Ms. Adams with comments “on the permit submitted to [the COE] by Mr. Michael Rauseo, Cape Ann Tool LLC.” The Harbormasters expressed concern that the uses proposed for the Harbor would affect “the navigation of the commercial and recreational boat owners in [the Harbor].”

27. In a letter dated May 23, 2014, the Town of Rockport Board of Selectmen (Board) also sent a letter to Ms. Adams with comments on the “permit application submitted to [her] office by Mr. Michael Rauseo, owner of Cape Ann Tool LLC.” The Board expressed concerns that the project “could interfere with federal navigable waters” and stated it “share[d] the Harbormasters’ concerns.”

28. On May 29, 2014, Ms. Adams sent Mr. Rauseo a letter relating to Cape Ann Tool’s application to obtain a COE permit to place structures in Harbor waters. [Note 9] Ms. Adams stated the proposed project is considered part of a “federal navigation” area, pursuant to 33 U.S.C. § 577, and requested additional information from him in order to complete the application.

29. On June 11, 2014, Mr. Rauseo sent a letter to Ms. Adams stating that St. 1830, c. 34 “expressly extinguished” the public’s right to freely use the Harbor, and that those currently using the Harbor did so with Cape Ann Tool’s authorization. Mr. Rauseo further stated that the “agreement the [COE] entered into with the Commonwealth is null and void . . . because the Commonwealth did not have the right nor ability to comply [with it],” and therefore the COE’s federal navigation project covering the Harbor did not exist.

30. On May 29, 2014, Mr. Rauseo submitted a mooring permit application to the Harbormasters for the installation of temporary docks within the private tidelands along the northern wall of the Cape Ann Tool property. He stated “[a]lthough it [was his] position that the installation of these docks and moorings is already authorized,” he was notifying the Harbormasters before any vessels were docked “as a courtesy” and providing a “voluntary” application fee.

31. On June 11, 2014, the Harbormasters responded to the application, requesting additional information before a decision on the application could be reached. Specifically, they requested information about the manner in which the temporary docks would be attached to the Harbor floor and northern wall, and the number and length of boats that would be using the docks.

32. Rauseo submitted additional information, but the Harbormasters remained uncertain whether the proposed docking system was eligible for an annual permit under G. L. c. 91, § 10A and 301 CMR 9.07 (Activities Subject to an Annual Permit), or whether the proposed work involved a permanent installation requiring a c. 91 license from DEP. On June 27, 2014, the Harbormasters requested additional information: “[p]lease provide a diagram of the entire mooring system, and explain [why] this is approvable under a 10A permit, rather than a DEP license.”

33. On July 2, 2014, the Harbormasters denied the application for an annual permit, stating they had “not been provided with sufficient information to show [how the proposed mooring system] would function” and, according to the information available, the proposed mooring system would require a DEP license for a permanent structure. The Harbormasters also noted the right to appeal their decision to DEP.

Other Relevant Legislative Acts And Deeds Which Are Part Of The Record

34. St. 1826, c. 26 established the Pigeon Cove Pier Company and authorized it to construct a dock on the Granite Street, or western side, of the Harbor: “for the purpose of erecting and maintaining a stone pier, at Pigeon Cove, so called in said town of Gloucester[.]”

35. The Pigeon Cove Land Corporation conveyed to the Pigeon Cove Boat Owners (Boat Owners) a parcel of land on the Harbor consisting of approximately 4.6 acres and more accurately described by a deed dated August 19, 1994, recorded in Book 12713, at Page 267 (Boat Owners Deed).

36. The parcel of land described in the Boat Owners Deed consists of the breakwater along the eastern side of the Harbor, as shown on a plan of land titled “Plan of Land in Rockport, Ma. Pigeon Cove Land Corporation to Pigeon Cove Boat Owners Association, Inc.,” recorded on August 22, 1994 in Plan Book 292, at Plan 61 (hereinafter, the Breakwater Parcel).

37. The Boat Owners Deed includes the following language:

“[g]rantor reserves for its use and the use of its successors and assigns the right and easement from time to time to enter onto said premises for the purposes of maintaining, repairing and restoring the existing granite retaining walls, Breakwater and Wharf facilities located thereon. Said retained easement shall be appurtenant to and shall run with the ownership of the parcels of land located on Pigeon Cove Harbor (Lots 26A, 27, 28, 28A, 29 and 29A, as shown on Rockport Assessors Map 16). Any such repairs undertaken pursuant to this reserved easement shall be at the sole cost and expense of the easement holder, but nothing herein shall impose upon any easement holder any obligation to undertake such repairs other than as such easement holder may determine in its sole discretion.”

38. The Boat Owners conveyed the Breakwater Parcel to the Town of Rockport by deed dated July 27, 2002, recorded August 22, 2002, in Book 19106, at Page 458.

39. DEP issued its Final Decision on October 29, 2015, holding that the Pigeon Cove Act did not extinguish any public trust rights in the tidelands or tidewaters at issue, including Pigeon Cove Harbor itself; and 2. DEP properly applied the Waterways Act and its regulations to determine whether the Landing Group’s proposed project “was consistent with the Pigeon Cove Act and the public rights of access, including fishing, fowling and navigation.”

* * * * *

I. Plaintiff’s Claims Against the Harbormasters Are Dismissed For Lack Of Jurisdiction

a. Count I: Mandamus

Plaintiff seeks a writ of mandamus directing the Harbormasters to not interfere with Plaintiff’s alleged right to manage the Harbor. The Harbormasters assert this court lacks jurisdiction over this count for two reasons: first, Plaintiff failed to exhaust administrative remedies by not appealing the Harbormasters’ actions to DEP, and second, the Harbormasters’ actions do not pertain to a right, title or interest in land, but rather concern a permitting decision relating to use of land, over which this court does not have jurisdiction.

Mandamus is “an extraordinary remedy granted only to prevent a failure of justice and in instances where there is no other adequate and effectual remedy.” Coach & Six Rest., Inc. v. Public Works Comm’n, 363 Mass. 643 , 645 (1973). It is intended to be used as a “last resort, when nothing else would work.” Doe v. Dist. Attorney of Plymouth, 29 Mass. App. Ct. 671 , 674 (1991). [Note 10] The Harbormasters argue this remedy is not the appropriate request for relief. Their actions were discretionary, and any decision could have been appealed to DEP. The Harbormasters argue mandamus is an available remedy only against a public official performing nondiscretionary acts, and cannot be used to compel an official to exercise his discretion in a particular way. Mass. Outdoor Advert. Council v. Outdoor Advert. Bd., 9 Mass. App. Ct. 775 , 789 (1980); Urban Transport, Inc. v. Mayor of Boston, 373 Mass. 693 , 698 (1977). Further, mandamus is an “extraordinary” measure and may be granted “only to prevent a failure of justice” in instances where there is no alternative remedy. Lutheran Servc. Ass’n of New England, Inc. v. Metro. Dist. Com’n, 397 Mass. 341 , 344 (1986).

In its complaint, Plaintiff appears to challenge three actions taken by the Harbormasters: first, their refusal to move the location of assigned moorings to make room for a barge for proposed repairs; second, their delay in ordering the relocation of assigned moorings located in private tidelands along the north side of the Harbor; [Note 11] and third, their denial of an annual permit for the installation of docks in the same area of private tidelands along the north side of the Harbor. The Harbormasters assert they acted pursuant to the discretion afforded them under G. L c. 91, §10A and 310 CMR 9.07 (providing, generally, that decisions of a municipal harbormaster are subject to review by DEP for abuse of discretion). Because the Harbormasters have taken the position that they will follow the directives and orders of the Commonwealth and DEP, they argue it is Plaintiff’s prerogative to appeal to DEP for a decision the Harbormasters will then implement, but other avenues, such as the case in this court, are not available, given the remedy of appeal to DEP. [Note 12]

Additionally, even if a writ of mandamus were an appropriate action involving non-discretionary acts, this court still lacks jurisdiction. The Land Court has concurrent jurisdiction over any action in the nature of mandamus that involves “any right, title, or interest in land [.]” G.L. c. 185, § 1(r). Here, the matter, as it pertains to the Harbormasters’ actions or inactions, involves the uses in the Harbor, rather than a claim of right, title or interest, placing Plaintiff’s request for mandamus outside the court’s limited jurisdiction. The Harbormasters themselves have no authority to determine Plaintiff’s title. See Tindley v. Dep’t of Envtl. Quality Eg’g, 10 Mass. App. Ct. 623 , 625 (1980) (stating it would be “anomalous for the Legislature to impose the responsibility of adjudicating property interests—traditionally left to the courts—on the harbormaster, whose powers are narrow”).

A permit issued pursuant to G. L. c. 91 regulates uses of property, as opposed to right, title or interests in property. While Plaintiff’s other counts may contain allegations relating to its claim of title in Locus and the Harbor, Count I does not. Instead it concerns the Harbormasters’ permitting decisions and their effect on Plaintiff’s proposed uses, specifically locations of moorings and docks. The Harbormasters argue they have acted in accordance with the discretion afforded them under 310 CMR 9.07, titled “Activities Subject to Annual Permit.” Once the judicial review process has been completed in Superior Court or, if this court retains the case and issues a decision on the merits against the Commonwealth, the Harbormasters fully expect to honor those decisions and act accordingly. For the several reasons set forth above, this court lacks jurisdiction to issue a writ of mandamus. Therefore, Count I of Plaintiff’s Complaint is DISMISSED.

b. Counts II and III Are Dismissed Because No Actual Case or Controversy Exists Between Plaintiff and the Harbormasters.

The Harbormasters allege that Counts II and III raise claims relating to Plaintiff’s alleged rights in the Harbor. These claims should be, and are, more properly asserted against the Commonwealth, as they are in other counts of the Complaint. Plaintiff’s arguments pertain solely to the interpretation of the Pigeon Cove Act and its alleged rights of exclusive use and control of the Harbor under that statute. The Harbormasters argue that this does not concern their alleged actions regarding the Harbor, and that they have acted “at all times on the basis of their understanding of federal and state statutory and regulatory requirements.” Because there is no allegation supporting an assertion that the Harbormasters would not comply with DEP’s decision or a court order in Plaintiff’s favor, the Harbormasters allege there is no actual case or controversy between them and Plaintiff. [Note 13]

Count II states generally this court’s jurisdiction pursuant to G. L. c. 185, §1, but does not specifically state what relief is sought. As discussed above, the Harbormasters’ actions do not involve any right, title or interest in land. Both the Harbormasters and the Commonwealth assert that any claims pertaining to Plaintiff’s right, title or interest in the Harbor will be addressed in the context of the Superior Court in the pending appeal. [Note 14] A fair reading of the Complaint indicates Count III, taken in conjunction with Count II, seeks declaratory relief against the Harbormasters with respect to the Plaintiff’s rights and interest in the use and control of the Harbor. Plaintiff is essentially substituting a request for declaratory relief as a substitute for administrative review by DEP in the first instance. If these counts retain any vitality, given the lack of timely appeal to DEP, the issues would be subsumed in the chapter 30A appeal now in Superior Court. Accordingly, the Harbormasters’ Cross-Motion is allowed and Counts II and III are DISMISSED.

II. Counts IV and V: Material Facts Remain In Dispute Regarding The Chain of Title To Locus And Plaintiff’s Status As The Successor-In-Interest to Rights Granted under the Pigeon Cove Act.

a. Count V: G. L. c. 231A

The two remaining counts seek declaratory relief, in the form of a quiet title action under G. L. c. 240, § 6, and G. L. c. 231A. Primarily, Plaintiff seeks a declaration it possesses sole rights in Locus and the Harbor, free of any interests of the Commonwealth. Addressing the final count first, the issue of Plaintiff’s rights in the Harbor and part of Locus has been determined by DEP and is pending judicial review in Essex Superior Court.

In Landing Group I, this court dismissed Plaintiff’s declaratory judgment claim because Plaintiff had failed to exhaust its administrative remedies at DEP, where Plaintiff’s application remained under consideration. Generally, a party must exhaust administrative remedies before seeking declaratory relief, which requirement is fulfilled when an agency delivers a final decision. See Town of Wrentham v. W. Wrentham Vill., LLC, 451 Mass. 511 , 514 (2008) ("[W]here there is a nonfinal administrative determination, administrative remedies have not been exhausted and declaratory relief is premature, because there is no actual controversy.").

DEP, pursuant to c. 91, has promulgated rules and regulations under 310 CMR 9.00, which lay out the process by which a party may challenge a final decision by DEP. Under 310 CMR 9.17, a party faced with an adverse decision may file, within 21 days of DEP's written decision, a request for an adjudicatory hearing at DEP. After DEP conducts such a hearing and issues its decision, a party will be deemed to have exhausted its administrative remedies with the agency. Thereafter, G. L. c. 30A provides the next avenue for aggrieved parties and specifically grants jurisdiction to the superior court (c. 30A, § 14) (italics added).

Although Plaintiff filed Landing Group I at an earlier stage in the administrative process at DEP, the reasons supporting the dismissal of Landing Group I apply in the instant action as well. Since Landing Group I, DEP has issued its Final Decision, and Plaintiff, in accordance with G. L. c. 30A, have appealed it to Superior Court, where it remains. The Land Court does not have jurisdiction to examine final decisions of DEP, except in certain circumstances not applicable here. Requesting that this court determine Plaintiff’s rights while the Superior Court simultaneously addresses the same issue is duplicative and not statutorily authorized. Accordingly, the Commonwealth’s Cross-Motion is ALLOWED as to Plaintiff’s request for declaratory relief, and Count V is DISMISSED.

b. Count IV: Quiet Title, G. L. c. 240, § 6

Plaintiff, seeking to quiet title, carries the burden of affirmatively establishing its title against the named Defendants. The claim cannot prevail simply by demonstrating the weaknesses or nonexistence of a defendant’s title. Sheriff Meadow Found., Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 , 269 (1987). The Commonwealth argues that, at a minimum, Plaintiff’s motion for summary judgment should be denied because material facts remain in dispute. [Note 15] This court agrees. Plaintiff did not provide sufficient evidence for purposes of a summary judgment decision, and the quiet title claim as it relates to the Commonwealth is DENIED, without prejudice, due to the inadequacy of the record and the material facts which remain in dispute.

Although Plaintiff submitted documents purporting to show that its interest in Locus and the submerged lands of the Harbor runs in an unbroken chain back to the Pigeon Cove Harbor Company chartered by St. 1830, c. 34, this title information is incomplete. Specifically, it appears Plaintiff’s chain of title does not include certain important conveyances, nor does it include references to another relevant statute, St. 1826, c. 26, and its possible effect on Plaintiff’s claim to title. The Commonwealth points to a deed dated August 19, 1994 (1994 Deed), recorded with the Registry in Book 12713, at Page 267, conveying a parcel of land from the Pigeon Cove Land Corporation to the Pigeon Cove Boat Owners Association, Inc. (Boat Owners). This parcel, described and shown on a Plan of Land recorded in Plan Book 292, at Plan 61, consists of approximately 4.6 acres of the breakwater along the eastern side of the Harbor.

As the record now sits, it appears this portion of the breakwater may have been conveyed by the Boat Owners to the Town of Rockport, by deed dated July 27, 2002, recorded with the Registry on August 22, 2002, in Book 19106, at Page 458. Thus, the Commonwealth argues, through the 1994 and 2002 deeds, the Town owns the breakwater, the construction of which provided the impetus for the original St. 1830, c. 34 and the charter of the Pigeon Cove Harbor Company. As a result, the Commonwealth argues Plaintiff cannot claim rights under this statute in and to a breakwater it does not own.

Plaintiff’s title information also appears incomplete in other ways, which may inform this court’s view of the title as it may have been affected by St. 1826, c. 26 (1826 Statute). The 1826 Statute established the Pigeon Cove Pier Company and authorized its construction of a dock on Granite Street, located on the western side of the Harbor. The Commonwealth alleges in addition to the conveyance of the breakwater discussed above, other parcels of land exist that were owned, at one time, by either the Pigeon Cove Harbor Company or the Pigeon Cove Pier Company and have since been conveyed to parties other than Plaintiff. It is unclear on the current record whether these conveyances may or may not be material to the present action. Plaintiff has submitted incomplete title information which should be completed before this court can determine definitively whether there are material facts in dispute. [Note 16]

The Harbormasters’ Cross-Motion is ALLOWED, and Counts I, II, and III against the Harbormasters are DISMISSED. The Commonwealth’s Cross-Motion is ALLOWED as to Count IV, which is DISMISSED, and DENIED as to Count V. Plaintiff’s Motion for Summary Judgment is DENIED. It is further ORDERED that a status conference is scheduled for June 8, 2016 at 11:00 AM, to discuss resolution of the remaining count, and how this case may proceed in light of the pending Superior Court action.