Before Any Appeal, Tribal Case Judge Will Be Asked to Reconsider Ruling

Gazette Senior Writer

The attorney who represents the Gay Head Taxpayers Association said yesterday that he will ask a superior court judge to reconsider a decision made last week in favor of the Wampanoag Tribe of Gay Head (Aquinnah).

The Hon. Richard F. Connon ruled that the tribe cannot be sued because of sovereign immunity. If it is allowed to stand, the ruling has potentially far-reaching implications for every town on the Vineyard, especially in the area of land use.

"We intend to file a motion to reconsider," declared James Quarles 3rd, a partner at Hale & Dorr in Washington, D.C., who represents the taxpayers association.

Mr. Quarles said last week that the taxpayers association will appeal the ruling, but under the rules of the court a motion to reconsider will take precedence and the deadline for the appeal period will be stayed pending the outcome of the motion to reconsider.

The Aquinnah selectmen have not decided yet whether the town will appeal. It is also not known whether other Vineyard towns will join an appeal, but by late last week there was some talk about the possibility, especially in the three up-Island towns.

The taxpayers association and the Benton Family Trust, a group of landowners who are abutters to the tribally owned Cook Lands, intervened in the case on the side of the town. The Benton trust has also said it will seek an appeal.

The ruling by Judge Connon has power to turn a landmark 1983 Gay Head Indian land claims settlement on its head. The judge found that the doctrine of sovereign immunity trumps the 1983 Wampanoag settlement agreement, as well as subsequent state and federal legislation that led to federal recognition of the tribe in 1987.

The Wampanoag Tribe is the only federally recognized tribe in Massachusetts.

The 1983 settlement agreement and the state and federal acts all contain explicit language noting that the land conveyed to the tribe is subject to state and local laws.

The case centers on a simple zoning dispute that began when the tribe built a small shed and pier at the tribal shellfish hatchery in March of 2001 without obtaining a building permit. The hatchery is located on the Cook Lands fronting Menemsha Pond in Aquinnah, one of four land areas conveyed from the town to the tribe under the terms of the 1983 settlement agreement.

In May of 2001 the town went to court to compel the tribe to comply with zoning rules.

Earlier this month Judge Connon sided with the tribe, returning again and again to the doctrine of sovereign immunity, although at the same time he acknowledged the clear intent of the settlement agreement and also the state and federal legislation.

"It is clear from everything presented to this court that the town and the tribe intended that the environmentally sensitive Cook Lands be subject to state and local land use requirements and that the tribe be required to comply with the town's substantive zoning laws," Judge Connon wrote in part.

Mr. Quarles said a motion to reconsider is justified given the language in the decision.

"The judge found that there hadn't been an explicit statutory reference, when in fact the zoning bylaws, which are in fact part of the settlement agreement, talk about the judicial remedies that are available," he said, adding:

"We are just going to point out to the court that the Martha's Vineyard zoning bylaws themselves reference chapter 40A [the state zoning law] and Chapter 40 section 21D [a state law that deals with enforcement of town bylaws], both of which contemplate judicial review."

A motion to reconsider must be filed within ten days of the ruling, and Mr. Quarles said yesterday he expected to file the motion shortly. Attorneys for the tribe will then have an opportunity to respond to the motion, and following that the court will decide whether to hear arguments.

Aquinnah selectmen met in executive session last week with their town counsel to discuss the possibility of an appeal, but made no decision. Following the meeting, board chairman Michael Hebert said the selectmen will not decide about an appeal until after a joint meeting with the Chilmark selectmen planned for July 1. The meeting had been set some time back for the purpose of discussing issues of mutual interest between the two rural up-Island towns. The superior court decision in the case between the tribe and the town has suddenly become a front-and-center issue of mutual interest.

Located at the extreme western end of the Vineyard, Aquinnah is the second smallest town in the commonwealth. About a third of the 360 town residents are members of the tribe. The tribe's total land holdings include more than 400 acres.