COMMONWEALTH vs. ROSS PAASCHE (and seven companion cases [Note 1]).

WILKINS, J. A judge sitting in the jury-of-six session of the Barnstable District Court has reported this case involving the legality of applying the shellfish regulations of the town of Provincetown to the harvesting of sea or surf clams by the defendants. The basic question is whether the town may lawfully bar nonresidents, such as the defendants, from harvesting

Page 19

sea or surf clams in the ocean waters lying within the town's boundaries.

The case comes to us on a statement of agreed facts that was filed after the judge reported the case to the Appeals Court. [Note 2] The complaints charge the defendants Paasche and Curley with harvesting shellfish from the town on June 1, 1982, without being licensed to do so, in violation of the town's shellfish regulations. All three defendants were also charged with similar violations committed June 10, 1982. The maximum penalty for each violation is $50. [Note 3]

The defendants argue, and the judge seems to have agreed, that under the shellfish regulations adopted by the selectmen pursuant to G. L. c. 130, Section 52, a nonresident who is not a real estate taxpayer in Provincetown may not obtain a commercial license for the harvesting of sea clams. [Note 4] We shall assume, for the purposes of this case, that the town undertook to forbid fishing for sea clams within the town by persons, such as the defendants, who neither live in the town nor pay real estate taxes there.

Each defendant is a commercial fisherman, making his living by fishing for sea or surf clams. The defendant Paasche has a State license issued pursuant to G. L. c. 130, Section 80, to fish for sea clams. He owns and is captain of a fifty-eight foot fishing vessel specially rigged for hydraulic dredging of sea and surf clams. The vessel is "federally licensed and enrolled to carry on mackerel fishing." The defendants Curley and Torrey were crew members on the vessel at the time of their alleged violations. On the day of the alleged violations, the vessel was operating in navigable waters off

Page 20

the shores of Provincetown where sea or surf clams are indigenous. The defendant Paasche sells the clams harvested by his vessel to a company in Rhode Island, which processes them for sale. The judge found that "the Defendant's vessel . . . was harvesting sea clams within one and one half miles of the shores of Provincetown." We assume, but it is not expressly stated, that the judge found that, on each relevant day, the defendants were harvesting sea clams within the limits of the town. See G. L. c. 42, Section 1, and G. L. c. 1, Section 3, which together define the seaward boundaries of cities and towns.

The defendants sought dismissal of the complaints on the ground that the regulation barring them fishing for sea clams was unconstitutional in violation of (1) the privileges and immunities clause (art. 4, Section 2[1]) of the Constitution of the United States, (2) the commerce clause of the Constitution of the United States, (3) equal protection guarantees of the State and Federal Constitutions, and (4) the supremacy clause of the Constitution of the United States. The defendants do not argue that the town lacked statutory authority to prohibit the harvesting of sea clams by persons who had a State license, pursuant to G. L. c. 130, Section 80, and by employees of such persons.

The importance of this case as a test of the lawfulness of the restrictions of the Provincetown shellfish regulations has been greatly diminished by the enactment of St. 1982, c. 363, amending G. L. c. 130, Section 52. Section 52 now states that the term "shellfish" does not include the commercial harvest of sea clams and ocean quahogs. This amendment, which expressly eliminates the right of municipalities to regulate the commercial harvesting of sea clams, was made effective by act of the Governor on July 22, 1982, shortly after the events giving rise to the complaints in this case. St. 1982, c. 363. Because of this amendment, the office of the district attorney for the Cape and Islands District has expressed its desire to withdraw as counsel in this case in favor of representation of the Commonwealth by counsel for the town. A motion to substitute counsel and for enlargement of time to

Page 21

file the Commonwealth's brief was allowed on April 20, 1983, while this case was in the Appeals Court. Town counsel has advised this court, however, that the town will not file a brief, and none has been filed. Thus we have a brief on only one side of this case, raising significant constitutional issues. We state for the future that when, pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979), a judge has determined prior to trial that there is a question of law "so important or doubtful as to require the decision of the Appeals Court" and the Commonwealth fails to file an appellate brief, we shall consider the absence of a brief as an indication that the Commonwealth has elected not to prosecute the criminal charge.

We do not decide constitutional questions unless they must necessarily be reached. See Lockhart v. Attorney Gen., 390 Mass. 780 (1984). There is a preliminary question, not discussed in the defendants' brief, that should be decided before any constitutional issue is reached. That question is whether the town had statutory authority to prohibit commercial shellfishing by nonresidents even before the 1982 amendment of G. L. c. 130, Section 52, particularly if a person had a State commercial fisherman permit under G. L. c. 130, Section 80, to take sea clams. It is arguable that the Legislature did not intend that such a person must also obtain a permit from each municipality in which he harvests sea clams and then comply with the detailed requirements of each set of local regulations. [Note 5] This court has found a legislative intent to prevent the application of local regulations in circumstances no more compelling than those in this case. See County Comm'rs of Bristol v. Conservation Comm'n of Dartmouth, 380 Mass. 706 (1980); id. at 718 (Wilkins, J., dissenting). It should also be noted that the regulations involved here were adopted by the selectmen and not as a by-law

Page 22

by the town. [Note 6] There is, therefore, a question whether the town may rely on the Home Rule Amendment (art. 2 of the Amendments to the Massachusetts Constitution, as appearing in art. 89 of the Amendments) in support of its authority to adopt the regulations.

Because a preliminary question not argued to us must first be decided, we discharge the report of these cases, except as to the complaint against the defendant Paasche for failing to stop when requested to do so by an assistant harbor master (see n.3 above) as to which a finding of not guilty is to be entered.

So ordered.