Halifax Residents Allege Illegal Sand Mining of Glacial Ridge The Whaleback; Seek Injunctive Relief

A Look at a Case Coming Before the Plymouth County Superior Court in Brockton on June 9th, 2023

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[ Note: An early, emailed version of this article identified The Whaleback as the highest hill in Halifax; it is the most prominent hill, but I am not sure if it is in fact the highest — the headline has been amended to reflect these facts. ]

(HALIFAX and BROCKTON) — Residents of a neighborhood in Halifax on West Monponsett Pond have filed a complaint and motions in Plymouth County Superior Court in Brockton, asking a judge to grant both declaratory and injunctive relief in relation to allegedly illegal sand-mining that is taking place on The Whaleback Ridge, a glacial esker rising from West Monponsett Pond that is among the most prominent hills in Halifax, a site of documented archaeological significance, great biodiversity, and a location of major importance for protection of the regional water supply.

The case will be heard at 2 p.m. on June 9th, in Plymouth County Superior Court in Brockton.

(A 1962 U.S. Geological Survey topographic map of The Whaleback; credit — USGS.)

“This is an action brought by owners of real property situated in the Town of Halifax seeking to obtain injunctive relief enjoining the Defendants, Morse Brothers, LLC, Ryco Excavating Inc., and Oiva Hannula & Sons Inc., from engaging in unpermitted earth removal on the property located at 250 Lingan Street, Halifax,” write the plaintiffs.

The complaint and motions were brought by Jeremy Gillespie, Mark Dillon, Amy Troup, Meg McKenna, Jeff Quinn, Adam Sloat, Daniel Carpenter, Ingrid Carpenter, Mark Jacques, Don MacNeil, Dave Mascio, Rich Holmes, Jean Jennings, Adrienne McDougall, and Jerry Shillcock; the overwhelming majority of the plaintiffs are residents of “The Aves” (from “Avenue,” of which there are many in the vicinity) neighborhood, located on the southern shore of West Monponsett Pond. All of the plaintiffs live in the vicinity and watershed of East and West Monponsett Pond. Mr. Gillespie is representing himself and his neighbors pro se.

The defendants are Morse Brothers, Inc., of Wareham, which owns the bog in question; Ryco Excavating, Inc., of Middleboro; Ryco Lease and Repair, of Middleboro (formerly one company); and Oiva Hannula & Sons, Inc., a construction firm located in Carver. I am not aware if they have retained counsel.

The plaintiffs are “concerned about and can provide evidence of improper mining of sand, gravel, rocks and topsoil by the Defendants on the Site and environmental impacts of same on residents of Halifax, the Halifax (as well as the towns of East Bridgewater, Hanson, Brockton, Whitman) public water supply, water and river way flow as well as the use and contamination of the abutting Class A public water supply lake and its tributaries. The abutting lake is known as West Monponsett.”

The plaintiffs calculate that approximately 157,500 cubic yards have been mined from The Whaleback and other surrounding hills, which mining they argue is illegal.

(The mining of The Whaleback; credit — Anonymous.)

Public Controversy and Political Crisis in Halifax; Alleged Violations of Law

The motion arose from a public controversy that has played out in the Town of Halifax over the last 15 months or so. Both geospatial data and the eyewitness testimony and experiences of inhabitants of The Aves neighborhood indicated that about one-third of The Whaleback has been removed by Morse Brothers, Ryco, and Hannula & Sons — outside of the law, the plaintiffs allege.

The Whaleback, at 92 feet above sea level and directly proximate to West Monponsett Pond, is the most prominent hill in the Town of Halifax. It 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 narrow ridge of The Whaleback, likely a glacial landform called an esker; credit — Anonymous.)

The geological feature is likewise of great human significance. A resident of The Aves sent The Plymouth County Observer excerpts from a 2008 Archaeological Reconnaissance Survey of Halifax, performed by the Public Archaeology Lab, of Pawtucket, RI, 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.

(The Whaleback, along with other sites of archaeological significance in the vicinity; credit — Public Archaeology Laboratory; red circle around The Whaleback by an inhabitant of the Town.)

The most recent chapter of the Whaleback’s history, at least in procedural terms, began on March 1, 2022, when, according to the complaint, the defendant, Morse Brothers, applied for an Earth Removal permit.

On or about August 4th, 2022, the defendants withdrew the application for an earth removal permit. This came as the result of a major public controversy in the life of Halifax, so extensive and significant that it might be thought of as a municipal version of a political revolution. Two-thirds of the Select Board and the Town Administrator resigned in the wake of the crisis around the sand-mining of The Whaleback Ridge.

The events were reported on at the time by journalists Kristy Zamagni-Twomey, of The Plympton-Halifax-Kingston Express, and by Lenny Rowe, of WATD in Marshfield.

My understanding is that the two Selectmen who resigned — Ashley DiSesa, and Alexander Meade [ed. — an early edition incorrectly gave Mr. Meade’s first name as “Andrew”; it is Alexander.] — were alleged to have conflicts of interest regarding the sand mining industry. Ms. DiSesa was employed by Ryco, one of the defendants in the motion being heard tomorrow at Superior Court in Brockton. In their resignation statements as reported by Ms. Zamagni-Twomey, they defended their conduct, and castigated the conduct of those who had called for their resignation.

The former Town Administrator, Marty Golightly, said it was not the right time to both live and work in the same Town.

This left Selectmen Jonathan Selig as the sole member of the Board of Selectmen — a constitutionally anomalous situation, given that a New England Town’s Select Board is a multi-person executive (special elections for the positions were held alongside the November, 2022, state and U.S. elections; John Bruno and Naja Nessralla were elected to the Board).

On December 29th, 2022, John Bruno, Chair of the Board of Selectmen, wrote to Morse Brothers via their agent, Brendan Moquin. The letter noted the applicability of Town earth removal bylaws to the operation at 250 Lingan Street.

“Under Chapter 144-1 of the by-laws of the Town of Halifax it states that no soil, sand, gravel or loam removal shall be permitted in any area unless and until a permit has been granted by the Board of Selectmen,” wrote Mr. Bruno, noting that there were five possible exemptions: excavation incidental to building; excavation incidental to agriculture; excavation incidental to a subdivision plan; excavation on Town property; or excavation incidental to the operation of a cemetery.

“It has come to the Board of Selectmen’s attention that earth is being removed from your bogs off Lingan Street. The Board is asking that you stop any earth removal,” and invited Mr. Moquin to a meeting of the Board of Selectmen to discuss Morse Brothers’ intention on January 10th, 2023.

“Be advised that under Chapter 144-2 (G) penalties shall be 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,” wrote Mr. Bruno.

(The January 10th, 2023 meeting of the Halifax Board of Selectmen; Mr. Moquin is seated in the center of the front row of the audience; Aves resident Steve Goodman is at the podium; the Select Board are behind the long table; credit — J. Benjamin Cronin.)

However, according to the plaintiffs’ motion, despite the withdrawal of their application for an Earth Removal Permit, and despite the Dec. 29th letter from Selectman Bruno, Morse Brothers et al. continued to, contrary to law, mine sand and gravel on the property, and truck it to locations outside of Halifax.

The site, the plaintiffs state in their motion for injunctive relief, is located in a MADEP Zone II Wellhead Protection Area. Additional protection is provided by the fact that Massachusetts law prohibits excavation below the annual 4ft high groundwater elevation mark.

MADEP Zone II Wellhead Protection Areas are defined at 310 CMR 22.02:

“That area of an aquifer which contributes water to a well under the most severe pumping and recharge conditions that can be realistically anticipated (180 days of pumping at safe yield, with no recharge from precipitation). It is bounded by the groundwater divides which result from pumping the well and by the contact of the aquifer with less permeable materials such as till or bedrock. In some cases, streams or lakes may act as recharge boundaries. In all cases, Zone IIs shall extend up gradient to its point of intersection with prevailing hydrogeologic boundaries (a groundwater flow divide, a contact with till or bedrock , or a recharge boundary)."

The plaintiffs state that “the changes in the Site are evident by current and historically visible permanently saturated soils, visible permanent surface water on once dry upland topography, [and] currently visible sinkholes filled with excess debris.”

In addition, they noted that “USGS elevation data, LIDAR data, indicate current stream flow direction from the Class A Public Water Supply Lake (West Monponsett, the abutting lake) directly into to the Site via a hydrogeologic ground & surface water connection, and public records provided by the town of Halifax.”

The plaintiffs state that there “There are also no current monitoring wells on the earth removal site location at this time as required by 310 CMR 22.21(2)b(6).”

In addition, the plaintiffs state that the “defendants are actively transporting unchecked material to the site. This is evidence by publicly accessible data provided by a MDAR grant public records request.”

Those records “explicitly detai[l] plans by Defendants to transport potentially contaminated iron and manganese bottom scrapings from their lowland bogs located in Middleborough to the [Zone] II areas within the site. Allowing the unknown and unchecked soil this area is a violation of 310 CMR 22.21(2)b(4) Wellhead Protection. Allowing unknown & unchecked soil to be dumped on-site is not only contrary to the law, but a known risk to the environment and water supply. These soils have been known to contain elevated levels of iron, manganese, and possible manure mixtures. Soil samples have been collected but have not been tested for elevated chemicals, metals, and pathogen[s],” said the plaintiffs.

It is not only Massachusetts laws being violated, argue the plaintiffs – the Town of Halifax’s bylaws are likewise being violated.

“The removal of earth from the Site without any permit, public hearing, notice to abutters, or site plans, is directly in violation of Halifax Zoning By-law Chapter 144 SOIL REMOVAL: Earth removal regulations, as well as virtually all pursuant articles & amendments of this zoning by-law,” write the plaintiffs.

The Larger Context: Archaeology and the Aquifer

Mr. Gillespie, who has extensively researched this matter, notes that the Town of Halifax is already subject to an Administrative Order from the United States Environmental Protection Agency (EPA) relating to the Town’s water supply.

“On September 30, 2020, the Region issued an Administrative Order (Order) to the Town of Halifax, Massachusetts to address NPDES [National Pollution Discharge Elimination System – Ed.] permit violations at one of its drinking water treatment plants. Under the terms of the Order, the Halifax Water Department will develop and implement plant modifications to meet permit limitations in its NPDES permit for total residual chlorine by August 13, 2021,” wrote the EPA.

Halifax, like her sibling Towns across the South Shore, has been troubled during this dry and droughty spring with anecdotal reports of brown drinking water. Sand and gravel deposits play a critical filtration and buffering zone for the local water supply; therefore, its removal outside the bylaws and Massachusetts statutes is a matter of critical public concern.

Another plaintiff, Amy L. Troup, an elected Member of the Halifax Planning Board, discussed the significance of water issues last month on WATD in Marshfield.

“We have an over-drawing on our water supply, and every Town that has been doing this over-building is seeing it, and it’s also going to affect the Towns around it because, again, it’s the same water table,” said Ms. Troup.

“I’m sorry, folks, but we don’t have any more water than what’s provided — so when subdivision control went in, in the Nineties, it stated that it was to protect Towns from overbuilding, and the purpose was ‘protecting the safety, convenience, and welfare of the inhabitants of the Town,’” she said.

“The first thing that we’re supposed to check through subdivision control is water,” said Ms. Troup, pointing to the availability of Town water, the volume of water required by new development, and other issues relating to the water supply as questions which must be considered in that process.

“We have a very low water supply because we’re over-drawing,” Ms. Troup told WATD.

Through their agent, Brendan Moquin, Morse Brothers declined to comment for this story.

Ryco, which has split into two companies, Ryco Excavating and Ryco Lease and Repair, did not respond to an email sent to its Ryco Excavating email address seeking comment before press time.

When reached by telephone, an employee of Oiva Hannula & Sons said that she would inform the owner of the request for comment, and if one were forthcoming, he would contact The Plymouth County Observer. At press time, I had not been contacted.

The Right to Farm Does Not Negate Other Rights Under the Constitution: An Examination of Massachusetts Case Law

To the extent I can glean it, the counterargument that Morse has advanced, generally speaking, appears to be premised on an extravagant and erroneous interpretation of the Right to Farm, arguing that their removal, without a permit, of a significant portion of a glacial hill — in plain English, mining it — is incidental to farming, and therefore protected by Article 97.

To the contrary, this flies in the face of, and contradicts entirely, the plain language and entire tenor of Article 97. While the right to farm is indeed protected by Article of the Massachusetts Constitution, it is not of such a preeminent and overriding character in that Article that it nullifies other rights mentioned in the Article: “The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.” (Article XCVII, Massachusetts Constitution)

Indeed, Massachusetts precedent bolsters the argument that the right to farm is not so expansive as to constitute a blank check to engage in unpermitted mining activity.

A 1991 case, Old Colony Council – Boy Scouts of America v. Zoning Board of Appeals of Plymouth, 31 Mass. App. Ct. 46 (1991) establishes that the right to farm is not without limit, and must in fact be balanced by other rights and requirements under the law.

Justice Dreben, writing for the Court, ruled that “the plaintiff's argument is that a special permit is necessary only when the sole purpose is earth removal; where a use is permitted as of right, no special permit is needed for the excavation necessary to prepare a site for that permitted use, regardless of the quantity of the earth materials to be removed. Therefore, according to the plaintiff, since the creation and cultivation of cranberry bogs are permitted as of right, the court erred in upholding the board's denial of the zoning permit.”

“Whether there is ‘damage to the landscape and topography’ surely does not depend on intent, but rather on what happens on the ground. Demolition of a hill does or does not damage the landscape irrespective of the demolisher's purpose,” wrote Justice Dreben.

He continued, disposing of a spurious argument premised on a faulty reading of the word “incidental”:

“Section 301.6 uses the word ‘incidental,’ a term which, when used in the context of zoning, often incorporates the concept ‘that the use must not be the primary use of the property but rather one which is subordinate and minor in significance.’ Harvard v. Maxant, 360 Mass. 432, 438 (1971), quoting from Lawrence v. Zoning Bd. of Appeals of North Branford, 158 Conn. 509, 512 (1969). The ordinary lexical meaning of ‘incidental’ also connotes something minor or of lesser importance. According this meaning to the word ‘incidental,’ in our view, best achieves the purpose of the special section of the by-law of which Section 301.06 is a part,” wrote Justice Dreben.

“That the excavation was not minor or incidental follows from the findings of the judge: ‘The net effect of the plaintiff's undertaking . . . is the creation of a sand and gravel quarry in conjunction with creating a cranberry bog.’ Where, as here, the proposal involved the removal of 460,000 cubic yards of fill over a two and a half year period and an excavation which would provide substantial funds in excess of the cost of constructing the bog, the judge was warranted in upholding the board's conclusion that the excavation of material was not incidental to the construction and maintenance of a cranberry bog,” wrote Justice Dreben.

In Francisco Cranberries, LLC v. Gibney, 1999 Mass. App. Div. 223 (Mass. Dist. Ct. App. 1999), a case heard in the Massachusetts Appellate Division’s Southern District, originally heard in the Wareham District Court. Justice Aguiar of the Appellate Division, like his colleague Justice Dreben, noted that the right to farm is not so all-encompassing that it allows a party to engage in activities that violate other laws and regulations.

“Plaintiff had a cranberry bog farm which consisted of seven and one half acres. Sand is used in cranberry farming. Plaintiff enlarged his bog by creating an additional one and one-half acre bog,” wrote Justice Aguiar.

“There was testimony that the plaintiff took down 150 feet of trees which was the buffer zone between the cranberry bog and the residents who live in this area and piled-up sand between 28 and 50 feet high in front of the neighborhood houses less than 100 feet away. Neighbors further testified that because of the blowing sand from the huge sand pile, they can't keep their windows open, their children can't play outside without eye protection, and the sand gets in their eyes, in their hair, in their ears, in their food and is a constant nuisance,” he continued.

While the plaintiff’s witnesses denied there was any nuisance, Justice Aguiar disagreed. He noted that the Wareham District Court “further found that "the windblown sand is a public nuisance. Covering the pile is fair and reasonable under all the circumstances."

Justice Aguiar continued:

“The [Wareham District] Court further found that M.G.L.c. 243, § 6, regarding actions of nuisance in the operation of a farm, is not applicable to the evidence presented in this case. The Court found that, ‘while the use of sand is an ordinary aspect of the farming of cranberries, this particular pile of sand is not ordinary. It is unusual. It is extraordinary. It is a by product not of the ordinary cultivation of the cranberries, but of the plaintiff's desire to enlarge his bog. Additionally, while the bog has been in existence for many years, the acre and a half “new bog” is what has created the public nuisance not the seven acres of “old bog,”’ wrote Justice Aguiar, quoting Justice Creedon of the Wareham District Court’s decision.

“The findings of fact by the trial judge should not be overturned unless clearly erroneous. In this case there was much evidence to support the judge's decision,” wrote Justice Aguiar. “We find there was no error. The appeal is dismissed.”

The complaint and motions for injunctive relief by Gillespie et al. v. Morse Brothers et al., in the matter of the alleged illegal sand mining of The Whaleback, will be heard tomorrow, Friday, June 9th, 2023, at 2 p.m., at Plymouth County Superior Court in Brockton, 72 Belmont Street, Brockton, Massachusetts.