Connerty v. Metropolitan Dist. Com'n

• Decision Date: 05 August 1986
• Citation: 495 N.E.2d 840,398 Mass. 140
• Parties: , 24 ERC 1974 Raymond P. CONNERTY v. METROPOLITAN DISTRICT COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 840

495 N.E.2d 840

398 Mass. 140, 24 ERC 1974

Raymond P. CONNERTY v. METROPOLITAN DISTRICT COMMISSION.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued April 7, 1986.

Decided Aug. 5, 1986.

Rona W. Goodman, Quincy, for plaintiff.

Jacqueline L. Allen, Asst. Atty. Gen., for defendant.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The plaintiff, a licensed master clam digger, brought an action on his own behalf and on behalf of other licensed master clam diggers ¹ for damages to his business allegedly caused by the discharging of raw sewage by the Metropolitan District Commission (MDC) into Quincy Bay and Boston Harbor. The plaintiff's claims for relief were based on the MDC's alleged violations of several environmental statutes, and common law nuisance. ² A Superior Court judge allowed, without opinion, the MDC's motion to dismiss on the ground that the complaint failed to state a claim on which relief could be granted. See Mass.R.Civ.P. 12 (b) (6), 365 Mass. 754 (1974). The plaintiff appealed. We transferred the case here on our own motion. We conclude that the complaint was properly dismissed.

We summarize the facts alleged in the plaintiff's complaint. The plaintiff and the other members of the class he purports to represent are licensed master diggers engaged in the business of harvesting and selling clams obtained from Boston Harbor and Quincy Bay. ³ The MDC is an agency of the Commonwealth and, pursuant to G.L. c. 92, § 1 (1984 ed.), repealed by St.1984, c. 372, § 30 (effective July 1, 1985), was charged with the responsibility to "construct, maintain and operate ... a system of sewage disposal." ⁴ One of the sewage treatment and disposal facilities operated by the MDC is located on Nut Island in Boston Harbor.

On November 11, 1983, the MDC announced through The Patriot Ledger newspaper that it intended to suspend operation of the chlorination facilities at the Nut Island wastewater treatment plant for four days to make repairs. Subsequently, on November 12, the MDC announced that the interruption in the operation of the chlorination facilities would render the fish and shellfish in Quincy Bay inedible. On or about November 16, 1983, the MDC began discharging raw sewage from the Nut Island facility into Quincy Bay. As a result of these MDC actions, the division of marine fisheries closed all Boston Harbor shellfish flats from November 15 through December 1, 1983. The complaint alleges that, at all times during the period Boston Harbor was closed for shellfish harvesting, the plaintiff was ready, willing, and able to harvest shellfish in that area. The plaintiff alleges that he and the other clam diggers would have realized a net profit of $22,000 if they had been permitted to harvest shellfish from Boston Harbor and Quincy Bay during the period shellfish harvesting was prohibited.

The complaint claims recovery either under the terms of several statutes, or in common law nuisance. First, the plaintiff alleges that the discharge of raw sewage by the MDC violated G.L. c. 130, § 25 (1984 ed.), which prohibits the discharge into coastal waters of sewage or other substances which might be injurious to the public health or tend to contaminate any shellfish areas, rendering the perpetrator liable in treble damages for the violation pursuant to G.L. c. 130, § 27 (1984 ed.). In addition, the plaintiff alleges that the MDC's conduct constituted a violation of its duty pursuant to G.L. c. 92, § 1, to maintain and operate a sewage disposal system to protect the health and natural resources of the Commonwealth. The plaintiff alleges that the MDC's conduct was a violation of G.L. c. 91, §§ 59, 59A (1984 ed.), which prohibit the discharge of petroleum products or "other matter or refuse" into tidal waters. Further, the plaintiff alleges that the MDC, by its conduct concerning the Nut Island facility, failed to meet its obligations pursuant to G.L. c. 30, § 61 (1984 ed.), to use "all practicable means and measures to minimize damage to the environment," such as water pollution and improper sewage disposal. According to the complaint, the MDC could have avoided causing the alleged environmental damage through bypass pumping around work areas, but chose not to do so because of the cost. Finally, the plaintiff alleges that the MDC's conduct constituted a substantial, unreasonable interference with the private rights of the clam diggers to harvest shellfish, that the MDC knew the discharge of raw sewage would pollute shellfish in Boston Harbor, and that the MDC's intentional and knowing discharge of raw sewage created a nuisance causing injury to the clam diggers.

The plaintiff contends that the dismissal of his complaint was error. " '[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Furthermore, the allegations of the complaint, as well as such inferences as may be drawn ... in the plaintiff's favor, are to be taken as true." Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Appleton v. Hudson, 397 Mass. 812, 814-815, 494 N.E.2d 10 (1986). Capazzoli v. Holzwasser, 397 Mass. 158, 160, 490 N.E.2d 420 (1986). These generous principles govern our analysis of whether any of the alternate theories of recovery advanced in the plaintiff's complaint would entitle the clam diggers to recover, assuming the facts alleged are true.

1. Statutory Claims.

The plaintiff in his allegations relies upon the language in certain statutes. He argues that, by reason of these statutes, the MDC owed him and other members of the class he purports to represent a special duty of care beyond the duty owed the public. Appleton v. Hudson, supra 397 Mass. at 815, 494 N.E.2d 10. Nickerson v. Commonwealth, 397 Mass. 476, 478, 492 N.E.2d 90 (1986). Ribeiro v. Granby, 395 Mass. 608, 613, 481 N.E.2d 466 (1985). Dinsky v. Framingham, 386 Mass. 801, 810, 438 N.E.2d 51 (1982). The plaintiff contends that the requisite special duty is established by the various environmental statutes prohibiting pollution of tidal waters and requiring the Commonwealth to refrain from polluting such waters, and by statutes providing for the licensing of master clam diggers. We do not agree with this contention.

Unlike Irwin v. Ware, 392 Mass. 745, 755-763, 467 N.E.2d 1292 (1984), we discern here no legislative intent that any identifiable sub-class should have rights in tort against the Commonwealth. See Appleton v. Hudson, supra 397 Mass. at 816, 494 N.E.2d 10. Nickerson v. Commonwealth, supra 397 Mass. at 478, 492 N.E.2d 90. Ribeiro v. Granby, supra. The statutes in question establish the MDC's duties to the public but they do not establish a special duty to the plaintiff beyond that owed to the public.

First, we consider any duty created by G.L. c. 130, §§ 25 and 27 (1984 ed.). Section 25 of G.L. c. 130 prohibits the "discharge into the coastal waters, or the tributaries of such waters, of sewage or any other substance which ... might tend to contaminate any shellfish areas or shellfish therein which may be determined ... to be of commercial value." Criminal and tort liability for violations of § 25 are established in § 27. Section 27 imposes criminal penalties of fines or imprisonment for persons violating § 25 and provides that tort liability for damages resulting from § 25 violations runs in favor of the city or town in which the contaminated waters are located, or to the Commonwealth. The section also provides that persons causing damage to private fishery resources in the Commonwealth shall be liable in tort to the owners or lessees of any private rights in the fisheries.

Section 27 creates no mechanism for private individuals or members of the public to enforce the criminal prohibitions of § 25. The tort liability running to the owners or lessees of private rights in private fishery resources likewise offers no avenue of recovery for the plaintiff. As the holder of a license to dig clams in public waters, the plaintiff, like other similarly situated clam diggers, is not an owner or lessee of any private interest in a fishery resource. ⁵

The license held by the plaintiff possesses none of the attributes of a property right. There is no language indicating a legislative intent to establish a remedy in tort for persons in the plaintiff's position. See White Dove, Inc. v. Director of the Div. of Marine Fisheries, 380 Mass. 471, 478, 403 N.E.2d 1169 (1980). See also Lindsey v. Massios, 372 Mass. 79, 85, 360 N.E.2d 631 (1977); Melley v. Gillette Corp., 19 Mass.App.Ct. 511, 513, 475 N.E.2d 1227 (1985), S.C. 397 Mass. 1004, 491 N.E.2d 252 (1986); County of Middlesex v. Newton, 13 Mass.App.Ct. 538, 544, 434 N.E.2d 1297 (1982). See also G.L. c. 92, § 1, which assigned to the MDC responsibility for operating a sewage disposal system that protects the health and natural resources of the Commonwealth, and similarly provides no mechanism for enforcement and no right of action for one in the plaintiff's circumstances.

Similarly, we conclude that G.L. c. 91, §§ 59 and 59A, impose no duty on the MDC toward the plaintiff. Section 59 makes punishable, by a fine, the discharging of any oil or petroleum product, "or any other matter or refuse" which results in the pollution or contamination of any tidal waters or flats. Further, the section provides that "this section shall be enforced by the department of public safety and by all other officers authorized to make arrests." The section makes no provision for private enforcement, and we will not imply a private tort remedy for violation of the section. Section 59A provides that the same activities rendered punishable by § 59 will render the negligent perpetrator liable in tort to persons whose property is...