Halifax Board of Selectmen Issues Cease and Desist Order, Fines Morse Bros. $30,000 For Mining of The Whaleback Glacial Hill

[Readers — this is a very long article, on recent developments in Halifax with respect to the glacial hill known as The Whaleback. Because of its length, you may wish to open it in your device’s Internet browser. Portions of this article appeared in earlier editions of The Plymouth County Observer. In general, this is a very complicated subject, and I hope I have done it some justice. I had intended to publish this weeks ago, but the complexities of the case are so great they kept drawing me further and further in, so it took a bit of time to finally finish. Thanks as always for reading and subscribing. — Ben Cronin.]

(HALIFAX) — The Halifax Board of Selectmen last month sent a cease-and-desist letter to Morse Brothers, Inc., owners of cranberry bogs and adjacent uplands off Lingan Street and next to West Monponsett Pond — a Great Pond of the Commonwealth — regarding Morse Brothers’ and associated entities’ illegal mining of The Whaleback, a prominent glacial hill and site of archaeological significance in the town.

“This letter constitutes a Cease and Desist Order and Assessment of Fine for multiple violations of the Town of Halifax Soil Removal By-law in regard to the recent earth removal activities (the ‘recent earth removal’) of Morse Brothers, Inc. (‘Morse Brothers’) at its property located at 250 Lingan Street in Halifax, Massachusetts (the ‘property’),” wrote Selectmen John Bruno, Jonathan Selig, and Thomas Pratt in their July 18th letter to Morse Bros., Inc., Vice President Brendan Moquin.¹

Context: The Whaleback and its Natural and Human History; the Economics of Cranberries and Sand and Gravel

The Whaleback, at approximately 83 feet above sea level, is directly proximate to West Monponsett Pond, a Great Pond of the Commonwealth. It is among the most prominent hills in the Town of Halifax, and is very likely an esker, a type of glacial hill marked by a high and narrow ridge, left by the retreating ice sheets and their meltwater tunnels at the end of the last Ice Age. Eskers have been protected in other communities locally — in both Duxbury and Weymouth, for instance.

(The Whaleback, the Winebrook Bogs, Stump Brook, and West Monponsett Pond; credit — The United States Geological Survey.)

Critically, eskers, like other ice contact deposits (moraines, drumlins, kames, and more), are typically made up of glacial till, a mixture of sand, gravel, rocks, and boulders left by the passage of the glaciers.²

Meanwhile, in recent decades, a massive increase in construction, especially in East Asia, and the fracking boom in North America, have both dramatically increased demand for sand; concrete requires sand as one of its components, and fracking uses sand suspended in water as the abrasive agent to fracture (thus, “fracking”) subterranean layers of shale which contain commercially valuable hydrocarbons.

Taken together, as U.S. Bureau of Labor Statistics data compiled by the Federal Reserve Bank of St. Louis shows, the price of construction sand and gravel has increased more than five-fold in the last 42 years. For a point of reference, when I wrote my first article on sandmining for this publication in April, 2022, the price of construction sand and gravel (from March 2022) stood at four times its 1982 price, meaning that there has been a substantial increase in price in even the last two-and-a-half years.

(The price of construction sand and gravel since 1982; July, 2024 = 541.200; June, 1982 = 100; via Federal Reserve Economic Data, the Federal Reserve Bank of St. Louis.)

Cranberries, on the other hand, suffered a price crash in 1999 that has fundamentally reshaped the industry and the region, while geographical competition from cranberry growing areas elsewhere, especially Wisconsin, has proven fierce, rendering cranberries a less certain source of income in southeastern Massachusetts than in decades past. This has led to tragic choices — in the original, Greek sense of a dilemma, or two bad choices — having to be made by cranberry growers: persistence in the older regime of cranberry growing, and thereby failing to make ends meet; or choosing to engage, in addition to cranberry growing, in real estate development and mineral extraction, thereby physically undoing the landscape and cultural and social order which sustained and underlay their decades of cranberry farming.³

This has led to a situation where other activities, like sandmining and real estate development, may offer greater profits for cranberry growers. This, in turn, has produced high levels of friction between cranberry growers and the people of their host towns. Such levels of friction have not been seen in nearly a century — at least to my knowledge, not since the convulsive and violent cranberry picker strikes of the 1930s.⁴

This historic compromise between growers, workers, and the towns that followed that strike began to break down after the late 1990s, when the price of cranberries plummeted, and Massachusetts faced stiff competition not only from our great domestic competitor, Wisconsin, but also from sources abroad, like Quebec. Growers, as this 2000 article by Judith Gaines in The Boston Globe Magazine demonstrates, were already aware at the turn of the millennium that the old order was passing away before the eyes of all the inhabitants of cranberry country. (On a personal note, I wrote my college application essay on cranberries and their associated culture and landscape in the Fall of 2000, and my concerns for what would come next).

Each of the many disputes across southeastern Massachusetts over sand mining and cranberry agriculture (as well as over real estate development and cranberry agriculture) are the product of these larger historical and structural forces, especially economic pressures stemming from the decline in cranberry prices, the increase in sand prices, and the attractiveness of large areas of open land to development interests.

The dispute over The Whaleback is in significant part the result of these larger historical forces.

(The wooded slopes of The Whaleback, Winter, 2023. Credit — Anonymous.)

The Human Significance of The Whaleback: Archeology and the View of Herring Pond Wampanoag Chairwoman Ferretti

The human history of The Whaleback extends back for many centuries. Jeremy Gillespie, a resident of The Aves neighborhood, on the shores of Monponsett Pond, sent The Plymouth County Observer excerpts from a 2008 Archaeological Reconnaissance Survey of Halifax, performed by the Public Archaeology Lab, of Pawtucket, Rhode Island, and funded by the Massachusetts Historical Commission. The Whaleback, as well as adjacent locations such as the Morse-owned Winebrook Bogs, Camp Ousamequin, a former YMCA summer camp owned by the Town of Halifax, and Stump Brook and its ancient Native stone fish weir, are sites of archaeological importance, according to the 2008 report. Projectile points, chipping debris, a plummet, an ulu (a type of knife), chipped stone tools, and other artifacts were found at some of the above locations.

I asked Melissa Ferretti, Chairwoman of the Herring Pond Wampanoag Tribe, for her views on the matter.

“The illegal mining activities at The Whaleback esker in Halifax are deeply troubling,” she told The Plymouth County Observer. “This site holds significant archaeological importance to the Wampanoag people, as confirmed by the 2008 Public Archaeology Laboratory survey funded by the Massachusetts Historical Commission. The destruction of such sites not only erases our history but also disrespects the cultural heritage of our nation.”

“Indigenous people and tribal communities throughout North America remain on the frontline of efforts to address climate change, and to oppose projects that are destructive to our Mother Earth,” said Chairwoman Ferretti. “The homeland of tribal nations in the US are among those communities that are most likely to be targeted for projects that are disastrous for the environment, and that have multiple destructive impacts on Indigenous people’s lives. The Herring Pond Wampanoag Tribe knows this because we have been at the ground zero of colonial resource extraction. For over 400 years, our ancestral lands have been clear-cut, stripped of sand and gravel, mined and paved over,” she said.

“As I also know very well, Indigenous peoples in New England are often overlooked, or ignored, with respect to matters of ‘energy and resource development.’ Yet, at the same time, as a Tribe whose ancestral homeland — along with the forests, fish and other wildlife in [the region] — was used by the Pilgrims to serve their interests as colonists, we know that we, and our history as a Tribe, are directly connected to decisions that the Town of Halifax makes about projects such as this,” Chairwoman Ferretti noted.

“For thousands of years these ancestral homelands and sacred sites are the roaming, and resting places of our Wampanoag Nation ancestors and hold great spiritual significance to us and are integral to our cultural heritage and identity. Protecting them is extremely important to preserving our history, culture, and traditional knowledge for future generations,” she stated.

“We need stricter regulations and our state and local officials to hold these companies accountable for their actions. It is our collective responsibility to protect the rich history and cultural heritage of the Herring Pond Wampanoag people, Wampanoag Nation and all other Massachusetts communities whether Native or Non-Native. These destructive projects impact us all,” said Chairwoman Ferretti.

“To us, land, water, and all the wildlife with whom we co-exist are alive and sacred. The land doesn’t belong to us— we belong to it,” she said.

A Partial Procedural History, 2000 – 2024; March Diesel Spill into West Monponsett Pond

The attempts by Morse Bros. et al. to mine the Whaleback appear to extend back over the course of more than two decades. According to documents obtained via a public records request by Halifax resident Jeremy Gillespie, as early as 2001, Morse Brothers’ plan to excavate large portions of The Whaleback had come before the Halifax Board of Selectmen. At a January 23rd, 2001, meeting of that body, the Board heard the application by Morse Brothers for an earth removal permit “to remove 60,450 cubic yards of sand and gravel to create a consolidated work and helicopter landing area and accommodate employee parking in conjunction with the harvesting of fresh fruit cranberries.”

Selectwoman Margaret T. Fitzgerald expressed dismay at the amount of land that was to be excavated.

According to the minutes of that meeting, “Fitzgerald had conducted a site inspection and was astonished at the length and height of the property to be removed. She questioned the need to develop such a large area for helicopter landing and truck loading. It did not seem sensible to her to choose the highest area when there were many flatter areas available.”⁵

Selectwoman Fitzgerald “was not convinced the proposal was for agricultural purposes and believed its purpose was commercial. She felt if the bog owners just wanted to flatten out an area, they would not take down such a big hill, destroying trees and leaving stumps. She was convinced 1t was a mining operation and was opposed to the application.”⁶

The meeting on January 23rd, 2001, was continued from January 9th; at that prior meeting, the minutes note that Selectwoman “Fitzgerald wanted to ensure that a sand and gravel operation was not being conducted under the guise of agricultural purposes.”⁷

According to the procedural history presented in a July 24th letter from Attorney Meg Sheehan (see below), an earth removal permit was granted by the Board of Selectmen to Morse Bros. in 2017, and expired in 2018:

“On March 8, 2017, the Board issued Morse an earth removal permit to excavate 41,600 cubic yards to ‘boost productivity & improve growing on an existing cranberry bog.’ The permit expired on January 8, 2018. The Companies continued to excavate and exceeded the permit volume by 16,000 cubic yards, removing a total of 50,175 cubic yards. The Companies exceeded the area allowed by the permit by one-half acre.”⁸

The next permit came last year, according to a July 24th letter from environmental Attorney Meg Sheehan (see below).

“On or about November 15, 2023, the Board issued Morse a permit under the Bylaw to conduct earth removal of 20,000 cubic yards at the Site. Morse has indicated its intent to conduct phased sand and gravel excavation at the Site, for a total of at least 1.1 million cubic yards, which is approximately the remaining volume of sand and gravel that comprises the Whaleback Esker and adjacent hill sides,” she wrote.⁹

On December 21st, 2023, Morse Brothers brought action against the Town of Halifax in the Plymouth County Superior Court, alleging that the conditions the Town sought to put on its sandmining were unlawful, and requesting, in part, injunctive relief from the Court. The argument put forward by Morse Bros. Attorney Nicholas Rosenberg was that the attempts by the Halifax Board of Selectmen to impose conditions on Morse Brothers’ sand-mining activities, and indeed, even the requirement to obtain a Town of Halifax earth removal permit, were unlawful.

Morse Brothers’ motion for a preliminary injunction was denied by Justice of the Superior Court Brian Glenny on February 5th, 2024. Judge Glenny ruled that the conditions of the permit did not constitute “irreparable harm”, and that therefore, Morse Bros. were not entitled to injunctive relief.

“The court acknowledges that the plaintiff has asserted facts indicating that complying with the permit conditions immediately impacts its operations. However, urgency in addressing prospective economic damages is distinguishable from the irreparable nature of certain damages. The mere fact that complying with such conditions may presently pose a burden upon the plaintiff’s operations does not render any prospective harm irreparable,” wrote Justice Glenny.¹⁰

Other aspects of the action are still ongoing.

It is also worth noting that the violations of the Halifax Earth Removal By-law found by the Board of Selectmen in July are not the only violations of environmental laws and regulations at the site in recent months. According to a May 6th, 2024, report to MassDEP by River Hawk Environmental on behalf of Oiva Hannula & Sons, Inc., the latter caused “the release and remediation of No. 2 fuel oil from a tractor being used to operate a water lift pump on the northern portion of Map 29, Lot 1 in Halifax, MA (the Subject Property) on March 13, 2024. Cleanup activities, which included the elimination of the source of the release, removal of impacted soil, and recovery of recoverable oil from the pond, were initiated promptly after the release was identified, and were completed within 24 hours. The MassDEP assigned Release Tracking Number (RTN) 4-30188 (the Disposal Site) to track environmental response actions associated with the subject release,” wrote the author of the report.¹¹

(Monponsett Pond. Credit — Jeremy Gillespie.)

The Halifax Board of Selectmen’s Cease and Desist Letter to Morse Bros; Selectmen Levy $30,000 fine on Morse Bros.

The Halifax Board of Selectmen laid out their reasoning for the cease-and-desist order and fine in their July 18th letter.

“Multiple truckloads of earth have recently been observed leaving the property,” the Board wrote. “In addition, you stated in an email message to Town Administrator Cody Haddad dated July 12, 2024 that approximately 2,500 cubic yards of material resulting from the prior screening of sand was being moved from the property.”

“Notwithstanding your assertions in the July 12, 2024 email message, the recent earth removal was not authorized by the Soil Removal Permit because Morse Brothers had already removed almost all of the earth authorized by the Soil Removal Permit,” the Board of Selectmen said.

The Board explained that Morse Brothers had already taken the full amount of soil allowed under its soil removal permit: “By letter dated May 3, 2024, [Morse Brothers’] Attorney Rosenberg stated that 19,908 yards of sand/earth had been removed from the property during the period of February 12, 2024 to April 5, 2024.”

The Board noted that “Paragraph III.3. of the Soil Removal Permit states: ‘[t]he total amount of soil/sand removal authorized by this Permit is 20,000 ± cubic yards;’”.

It further noted that “the Soil Removal By-law defines ‘REMOVAL’ as: ‘[t]he excavation of the earth as well as taking earth off the property.’ The recent earth removal was performed without a permit pursuant to the Soil Removal By-law and constitutes multiple violations of the Soil Removal By-law.”

It explained that “§144-2.G. of the Soil Removal By-law states that penalties shall be in in accordance with MGL c. 40, §21D and: ‘[a] person, firm or corporation violating any provision of this chapter shall be fined $20 for each offense. Each cubic yard removed shall constitute a separate offense.’”

In addition, the Board noted that “§144-2.A.(1)(b) of the Soil Removal By-law states that a permit shall not be required for: ‘[e]xcavation not in excess of one thousand (1000) cubic yards incidental to customary agricultural maintenance and construction as allowed by law on land in agricultural use.’”

Consequently, the Board of Selectmen issued a cease-and-desist order and levied a hefty — $30,000 — fine on Morse Brothers, Inc.

“The Board of Selectmen hereby orders Morse Brothers to Cease and Desist its earth removal activities at the property in violation of the Soil Removal By-law.” wrote the Board.

(The mining of The Whaleback, Spring, 2024; credit — Anonymous.)

“Also, the Board of Selectmen hereby assesses a fine of $30,000 (1500 cubic yards x $20) against Morse Brothers for the recent earth removal, which was performed without a permit pursuant to the Soil Removal Bylaw and constitutes multiple violations of the Soil Removal By-law. Attached please find written notice of violation pursuant to M.G.L. c.40, §21D,” the Selectmen wrote.¹²

Views of Concerned Halifax Citizens

Halifax resident Jeremy Gillespie, who serves on the town’s Alewife Restoration Committee and the Bylaw Review Committee, has been a passionate voice speaking in defense of The Whaleback and Monponsett Pond. He expressed his views on these developments.

“Myself and a group of concerned residents have been dealing with the destruction, and potential further destruction[,] of the historically and geologically significant Whaleback esker for over two years now. We've had semi-trucks rolling through our small and densely packed old neighborhood unannounced for even longer, due to the unnecessary sand mining and flattening of an adjacent 83 ft hill that used to abut the shoreline of West Monponsett,” Mr. Gillespie told The Plymouth County Observer.

“We've lost 2 out of 3 Board of Selectmen over their ties to Ryco Excavating, in addition to having our town wells shut down because of iron and manganese contamination, all while the sand mining continued within our Aquifer Protection Zoning Overlay District, which strictly prohibits this mining. It's honestly a breath of fresh air and a sigh of relief to finally have the leadership in place at Town Hall who are willing [to] stand up for our neighborhood and impose fines for these bylaw violations. I sincerely hope this latest event puts an end to the mining, and what remains of the Whaleback esker is forever protected for the common good,” he said.

Steve Goodman, a Halifax resident who formerly served on the Halifax Conservation Commission, told The Plymouth County Observer that he had observed stark differences with respect to wildlife on West Monponsett Pond as a result of the sandmining taking place nearby.

“In June of 2020 I moved into this neighborhood on West Monponsett. A beautiful quiet area filled with wildlife [and] centered around a lake that sits on an ancient underground aquifer. The abundant wildlife has been disturbed by the sand mining activities directly adjacent to West Monponsett,” said Mr. Goodman.

(A heron hunting in the waters of Monponsett Pond; credit — Steve Goodman.)

"In 2021 the excavation of [one of] the highest elevation[s] in town, the glacial esker known as the Whaleback[,] began[,] including the stripping of valuable topsoil. The resulting wind driven sand being deposited in the lake couple with the removal of the natural filtration provided by sand that was deposited there at the end of the last ice age, has cause irreparable harm. The town suddenly need[ed] filtration plants at the wells closest to that project. Never need[ed] them before. The lake is no longer clear water, already [algal] blooms are more prevalent and the wildlife has found better place[s] to live,” Mr. Goodman said.

“I could once enjoy watching predator birds fish almost daily,” he recalled. “Now they can’t see the fish so they've moved on. I walk the shores weekly and am no longer treated by the deer or fox. People don't realize how clean water is the basis for any healthy ecosystem. There is no evidence of actual farming going on for at least 2 years now,” he said.

In terms of wildlife such as he’d observed in 2020-2022, “I haven't seen anything the last 2 years,” said Mr. Goodman.

Attorney Sheehan’s Letter of July 24th; Response of Ryco Excavating VP Mike Diamond

Attorney Meg Sheehan, of Save the Pine Barrens, Inc., and the Community Land and Water Coalition, sent a letter to several recipients on July 24th, giving notice of the intent of ten citizens of the Commonwealth to file suit “to prevent ongoing and threatened irreparable harm to the environment”; the letter was sent, among others, to the Secretary of the Massachusetts Executive Office of Energy and Environmental Affairs (EOEEA) Rebecca Tepper; to Massachusetts Department of Environmental Protection (MassDEP) Commissioner Bonnie Heiple; to Attorney General Andrea Campbell; to Massachusetts Department of Agricultural Resources (MDAR) Commissioner Ashley Randle; to members of the Massachusetts Historical Commission (MHC), including State Archeologist Brona Simon and, in his capacity as Chair of the Commission, Secretary of State William Galvin; and to the entities engaged in the illegal earth removal, namely Morse Brothers, Inc., of East Wareham, to Ryco Excavating, Inc., and Ryco Lease and Repair, Inc., both of Middleborough, and Scott Hannula, President, Oiva Hannula & Sons, Inc.

The letter originally included the Halifax Board of Selectmen among its recipients, but the Board was removed when the Community Land and Water Coalition became aware of the July 18th cease and desist letter to Morse Bros. et al.

Attorney Sheehan alleged numerous violations of Massachusetts laws due to the earth removal activity off Lingan Street.

“From at least 2002 to 2022, Morse, Ryco and/or Hannula conducted sand and gravel removal in violation of the prohibitions of the Clean Waters Act, Best Management Practices for Sand and Gravel Pits under the Massachusetts Erosion and Sediment Control Guidelines, Urban and Suburban Areas, Erosion and Sediment Control Best Management Practices for Sand and Gravel Pits, page 322, prohibiting the removal of soil, loam, sand, gravel or other mineral substance within 4 feet of the historical high groundwater elevation table. 310 CMR 22.21(2)(b)(6),” wrote Attorney Sheehan.

The activity threatened the public water supplies of both the Town of Halifax and the City of Brockton, alleged Attorney Sheehan.

The site “is zoned “Conservancy” district and Aquifer Protection Zoning District under the Town of Halifax Zoning Bylaw. The Site is within a Class A Surface Water Protection Zone for public water supplies on and adjacent to East and West Monponsett Ponds. It is in a Zone II of protection established by MassDEP for public water supply wells 4118000-03G and 4118000-04G, both located on the shore of Monponsett Pond (West basin),” she wrote.

“The Site abuts West Monponsett Pond which is hydrologically connected to East Monponsett Pond via surface water and groundwater. The City of Brockton diverts water from East Monponsett Pond into Silver Lake where it is treated and piped to the City of Brockton to supply potable water to the City’s residents, schools and businesses. The City of Brockton is an Environmental Justice community. The Zone II of two public drinking water supply wells on theshore of East Monponsett Pond that appear to serve the Halifax Estates mobile home park are located about 4,000 feet of the past and future mining sites. Halifax Estates is an Environmental Justice community in Census Block Group 4, Tract 5261,” wrote Attorney Sheehan.

“The Companies’ sand and gravel excavation strips away forests and vegetation that absorb about 90% of the nitrogen contained in precipitation falling on the land. This results in increased nitrogen exported to the groundwater and nearby water bodies,” she continued.

Moreover, the mining of the archaeologically significant Whaleback esker also violates Massachusetts laws relating to historical preservation, according to Attorney Sheehan.

“This site has been documented as a site of Native archaeological significance, posing a threat to the cultural history of both the Wampanoag people and the Commonwealth of Massachusetts if disturbed. The Whaleback has known archaeological features and significance to the Wampanoag Native American people of the region. It is a high esker overlooking the Monponsett Ponds along the travel route used by the Wampanoag people, including King Philip-Metacomet, the Pokanoket chief and sachem of the Wampanoag people during the King Philip’s War from 1675 to 1676,” she stated.

“The Wampanoag people used hills as preferred burial sites. The Companies’ sand andgravel mining has desecrated historic sites, lands and features of significance to the Wampanoag people, including the destruction of artifacts and petroglyphs. The proposed future mining will level the Whaleback Esker, threatening the further desecration and destruction of archeological sites and features. The Massachusetts Historical Commission (MHC) has failed and refuses to enforce the relevant laws including but not limited to: Archeology, G.L. c. 9, § 26-27C and 950 CMR 70; Native American Burials, G.L. c. 7, § 38A, G.L. c. 9, § 26A, 27, G.L. c. 38, § 6, G.L. c. 114, § 17,” Attorney Sheehan said.

She noted as well that Massachusetts Department of Agriculture grant monies were expended in support of Morse Bros., including their mining activities.

“During the time that it was conducting unpermitted commercial sand and gravel mining at the Site and destroying a known Native American archeological site, MDAR granted Morse $150,000.00 in agricultural subsidies. This caused damage to the environment by funding with taxpayer money the Companies’ excavation of sand and gravel from the Site, removal of it from the Site, and disposal to an unknown location for a purpose that has questionable, if any public Benefits,” wrote Attorney Sheehan.

Attorney Sheehan further argued that the activity taking place off Lingan Street in Halifax also comes under federal purview.

“The Companies’ past and future proposed sand and gravel mining operations constitute Construction Sand and Gravel Processing as defined by the federal Clean Water Act, Section 11.19.1…. As noted, the Companies’ activities are governed by federal regulations for Sector J, Mineral Mining and Dressing, Subsector J1, SIC Code 1442 and require permits under the federal National Pollution Elimination Discharge Permit program of the Clean Water Act from the U.S. Environmental Protection Agency,” she wrote.¹³

However, Attorney Sheehan noted that Morse Brothers possesses no such NPDES (National Pollution Discharge Elimination System) permit from the United States Environmental Protection Agency (EPA) for its activities at The Whaleback.

Nicholas Rosenberg, Attorney for Morse Bros., Inc., did not reply to an email offering an opportunity to comment.

Ryco Excavating Vice President Mike Diamond gave his view of the matter via email to The Plymouth County Observer:

“I will comment that Miss Sheehan’s allegations typically have no real substance. She likes to make doomsday assumptions and allegations in attempts to gain traction and vanity with her supporters. She is a professional at log jamming the legal system and wasting taxpayers[’] hard earned dollars that could otherwise be allocated for a more productive end use for the local communities in which she wages her ‘sand wars,’” he wrote.

“Miss Sheehan uses any avenues available to try and discredit a perfectly legal industry/industries that she just happens to oppose. Her track record of dozens upon dozens of failed litigation attempts supports my statement,” said Mr. Diamond.

An email to Oiva Hannula & Sons, Inc., seeking comment for this story was not answered.

The Plymouth County Observer’s View: The Laws of the Town Must Be Upheld

There seems to be a bipartisan view, in evidence across the country, that democratically elected governments must, as though it were a Law of Nature, defer to, and indeed, act in defense of, private economic interests. There has even been an attitude in some quarters that, while it may be regrettable that private economic actors violate the rights of the public and the integrity of public things (res publicae), there’s simply very little that governments can do to restrain businesses which threaten the common good, and that we therefore must simply accept that business shall always have the upper hand over democracy, and over democratic attempts to regulate it in defense of the public good.

But, as Pitt the Elder said in a different context: “that is not the fact, that is not the constitution”¹⁴ — the fact is that ample legal and constitutional resources exist for our democratically legitimate governments to restrain the all-too-often grasping and amoral forces of material gain; for governments to act in defense of the public and public things. The truth of this fact is emphatically demonstrated by the recent cease-and-desist letter sent to Morse Bros. by the Halifax Board of Selectmen.

That letter, which came as the result in part of many months of public campaigning and engagement by concerned citizens of Halifax and their allies, across the Commonwealth and beyond, shows that government of, by, and for the people, in furtherance of the public good, is still a real possibility.

And while I am deeply sympathetic to the problems faced by the cranberry industry, especially having grown up down the street from a bog in West Duxbury, mining is not agriculture, and what has been happening off of Lingan Street appears to me to be mining. The cranberry growers have exactly the same rights under our constitution as every other inhabitant of the Commonwealth; no fewer, and no greater — “equal rights for all, and special privileges to none,” as Jacksonian democracy, itself quoting Jefferson, put the idea two centuries ago. Private economic actors are citizens just like the rest of us, both protected and bound by the laws; they do not enjoy any kind of exemptions from following the law.

It is therefore heartening to see the Halifax Board of Selectmen ensure that the laws of the town are enforced, and the rights of the public defended.

1. Letter of Halifax Board of Selectmen to Morse Bros., July 18th, 2024.

2. On eskers, see The Encyclopedia Britannica, here: https://www.britannica.com/science/esker

3. On the state of the cranberry industry, and some of the details of the 1999 crash and its consequences, see agricultural economists Vincent Amanor-Boadu, Michael Boland, and David Barton, “The Cranberry Industry at the Crossroads,” American Agricultural Economics Association Graduate Student Case Study Competition, July 26-27, 2003, Arthur Capper Cooperative Center Case Study Series No. 03-01, Arthur Capper Cooperative Center at Kansas State University. https://www.aaea.org/UserFiles/file/AAEA2003casestudy-CranberryIndustryataCrossroads.pdf.

4. In my view as an historian, in the wake of those strikes, a kind of settlement, or historical compromise, was reached in Cranberry Country, one that held for nearly 80 years: cranberry growers would retain their positions of economic, social, and political prominence, and in turn, the people would have a southeastern Massachusetts equivalent of the Swedish allemansratten, the Everyman’s Right, i.e., the right to roam, using the cranberry bogs and adjacent uplands and associated ponds, streams, and wetlands, as a vast de facto commons for fishing, hunting, hiking, ice-skating, berry picking, camping, and so on (this order was predicated as well upon the much lower populations of the cranberry-growing towns in those days); as I documented last summer, in significant part, the land involved in cranberry production appears to have been originally de jure common.

5. Minutes, Halifax Board of Selectmen, Jan. 23rd, 2001.

6. Ibid.

7. Minutes, Halifax Select Board, Jan. 9th, 2001.

8. Letter of Atty. Sheehan, 7/24/24.

9. Letter of Atty. Sheehan, 7/24/24.

10. Hon. Brian S. Glenny. Memorandum of Decision and Order on Morse Brothers, Inc.’s Motion for Preliminary Injunction, Feb. 5th, 2024.

11. River Hawk Environmental Report, May 6th, 2024, p. 4.

12. Letter of Halifax Board of Selectmen, July 18th, 2024.

13. Letter of Atty. Sheehan, 7/24/24.

14. William Pitt the Elder, by then the 1st Earl of Chatham, Speech to the House of Lords on John Wilkes, Jan. 9th, 1770.