H ouse leaders tucked an amendment into the state budget last week that would block a Mashpee fisherman’s oyster-farm proposal, long opposed by wealthy homeowners, including the Kraft family, owners of the New England Patriots.
The amendment, passed without debate and unbeknownst to Cape Cod lawmakers, would create what environmental officials called an unusual “marine sanctuary” about a quarter-mile off Popponesset Island’s shore. Declaring the area a sanctuary would thwart the proposal of oysterman Richard Cook to turn the same 2-acre stretch of water into an oyster farm.
“I just find the whole thing to be really, at best, odd,” said state Senator Dan Wolf, who represents the district, but was unaware of the amendment before it passed. That, he said, is “not an indication of good process.”
Cook’s attempt to set up an oyster farm has already won considerable local backing, getting the nod from town governing bodies, the relevant state agencies, and a Barnstable Superior Court judge. But since 2011, he has repeatedly run into trouble with property owners on nearby Popponesset Island and Daniels Island. Both Patriots owner Robert Kraft and president Jonathan Kraft are among those who own houses there.
Having lost in earlier legal battles, homeowners have turned to the State Appeals Court.
The Krafts are not named parties in the suit now before the Appeals Court. But they have been repeatedly recorded as being in opposition.
Robyn Glaser, a Kraft legal representative who has attended multiple hearings on the proposal and spoke heatedly against it at a 2011 meeting, declined to answer a reporter’s questions when reached via phone Friday. She referred questions to the Krafts’ media representatives before hanging up. A Kraft spokesman declined to comment.
The legislation that would block Cook’s proposal was slipped quietly into the state budget last Tuesday night, with few lawmakers aware of its impact, as part of a consolidated amendment to the $36.3 billion annual budget.
The measure was sponsored by state Representative Michael Costello, the Newburyport Democrat who chairs the Financial Services Committee, who is stepping down at the end of this term.
ML Strategies, the lobbying wing of the Boston law firm Mintz Levin, approached Costello about filing the amendment. Mintz lawyers also represent abutters to the site who have gone to court to block Cook’s project.
A spokesman for House Speaker Robert A. DeLeo, who has been represented by Mintz Levin in the past, said the speaker was aware of the amendment but did not know of the interests of any abutters other than the Massachusetts Audubon Society.
Consolidated amendments are routinely added to the budget as a way of expediting the process. The annual spending bill frequently serves as a horse-trading platform for lawmakers and a mechanism for legislative leaders to reward rank-and-file members. Measures generally do not make their way into a consolidated amendment without the approval of both the House speaker and the chairman of the Ways and Means Committee, Brian Dempsey, Democrat of Haverhill.
For the amendment to become law, it must survive the Senate budget process, win final approval from both chambers.
The language in the marine sanctuary amendment does not name Mashpee or Popponesset Bay, identifying the area only through geographic coordinates, which initially confused lawmakers.
Wolf, the Harwich Democrat who represents the district, said he believed establishment of the sanctuary would prevent routine dredging of a “vital channel” in Popponesset Bay, and criticized the House maneuver. “Good outcome requires good process,” he said.
Costello defended the measure, which he said deals with “sensitive environmental issues” similar to those in his own seaside district.
“If it was happening in my district, I’d file the same amendment,” Costello told the Globe. “On the merits, I think it was a good amendment.”
Representative David Vieira, a Falmouth Republican, said he learned of the language affecting his district when the Mashpee town manager, Joyce Mason, called him Friday afternoon. Vieira questioned why Costello filed a policy affecting his district. “Why was he proposing on that tract of land in that waterway, outside of his district, a marine sanctuary?” Vieira said. “Why did he propose one in my district?”
Cook said he was angered by the amendment, of which he was unaware until the Globe inquired about it last week.
“All the way along through the process, I’ve done what the agencies and regulators have asked me to do in filing for permits and et cetera,” said Cook. “And I don’t understand how at this point someone can come in the back door from off-Cape and without any knowledge of local authority and residents, try and create something like this in order to stop my proposal from moving forward.”
Cook’s current oyster farm proposal is in its second, smaller iteration. The first version called for it to be located closer to shore, but was scrapped after running into opposition from the island homeowners.
“I decided I’d move [the oyster farm] as far away from people as I possibly could, and assumed I wouldn’t get any negative feedback,” Cook said.
Cook’s proposal has roiled Popponesset Island for years, surviving a string of legal and regulatory challenges, and currently sits before the Appeals Court. The Krafts have not been alone in their opposition, but have preferred to maintain a lower profile. A Cape Cod lawyer for the abutters did not return a phone call seeking comment. A Mintz spokeswoman said the firm did not comment on pending litigation.
Local officials called the case an emotional one, pitting year-round residents against second-home owners.
Most of the opposition has come from island property owners, who have cited a range of reasons over the years, from concerns over farming gear spoiling their views to safety worries for recreational boaters to the prospect that nor’easters could leave “storm-borne debris” strewn on beaches.
Andrew McManus, conservation agent in Mashpee’, recalled one June 2011 meeting at which Glaser, the Krafts’ representative, became agitated.
Capenews.net, the website for The Enterprise newspapers, quoted Glaser as blasting the project during that meeting: “I’m so overwhelmingly upset; I can’t believe what has gone on here tonight,” she said. “This is not a rich and poor issue. It’s a Mashpee resident issue.”
On Monday, McManus said: “There was a lot of emotion from the abutters at that first meeting.”
Cook’s initial installation would include up to 5,000 square mesh bags, about 36 inches long, 18 inches wide, and about 4 inches in height. Each bag would be secured to the bay floor by PVC pipes and attached to cables.
According to legal documents, all bags would be “completely submerged” during an average low tide. Yellow polyethylene buoys would demarcate the 2-acre area. Bags would be added in ensuing seasons.
“Mr. Cook should be required to demonstrate that the project can withstand all storms in order to prevent the bags and other components of the facility from becoming water-borne debris,” wrote one lawyer for the abutters.
Between Cook’s proposed site and the shoreline is an 8-acre shellfish site designated for the Mashpee Wampanoag Tribe, but those familiar with the project said it is not farmed as actively as Cook intends his to be.
Local officials say they support Cook’s effort, calling it a municipal matter.
“The intent of the plaintiffs is to wear down the town and Mr. Cook and ultimately preclude them from going forward,” said Mashpee town counsel Patrick Costello, who is not related to the lawmaker. “The town feels this is an effort to erode its authority over these local matters. We don’t take too kindly to being intimidated or financially driven to vacate our positions.”
globe.com. Follow him on Twitter @josreports.