As sands shift, Cape Cod refuge changes and tensions rise
The constantly moving sands that extend from the elbow of Cape Cod have long been a refuge for everything from endangered plovers to vast seal colonies, offering a placid sanctuary protected by federal law since World War II.
But the sapphire waters surrounding the Monomoy National Wildlife Refuge have also provided a livelihood for hundreds of local fishermen.
Federal and local officials have traditionally worked together to preserve the area, rarely squabbling over the refuge’s increasingly ambiguous boundaries as tides, storms, and rising seas have reshaped the 8 miles of sand that jut from Chatham into Nantucket Sound.
Now, that’s changing. Tensions have escalated in recent months over the border between state and federal land, to the point that state officials have threatened to sue the federal government and a local congressman has drafted a bill to designate some 3,900 acres — about half of the refuge’s disputed territory — as belonging to the state.
Local officials worry, ultimately, that they will lose their say over how the waters are used, potentially costing them a lucrative fishery.
“We really feel like we have been wronged,” said Jeffrey Dykens, chairman of the Chatham Board of Selectman and a longtime shellfish harvester. “We are deeply concerned about the future.”
The conflict has developed as the US Fish and Wildlife Service, which oversees Monomoy and 10 other wildlife preserves in Massachusetts, conducted a review of the refuge’s boundaries as part of the first congressionally required conservation plan for the refuge.
As a result, officials declared much of the water that surrounds Monomoy to be part of the refuge, pointing to a document the US government filed in federal court when it acquired the land in 1944.
The document, which includes a detailed map with a box around the land and the surrounding water, states that the federal government’s title includes “water rights” and all nearby “sand bars and tidal flats” in Nantucket Sound, Chatham Bay, and Stage Harbor.
“Our attorneys feel we have a strong requirement to reassert our boundaries,” said Christine Eustis, a spokeswoman for the Fish and Wildlife Service in the Northeast. “We listened very hard to the town, but we feel it’s the responsibility of the federal government to abide by federal legislation. We also feel a responsibility to manage this resource for the American public — not to walk away from it.”
Local and state officials vigorously dispute the agency’s findings.
In a letter to the Fish and Wildlife Service in 2014, then-state Attorney General Martha Coakley called the findings “legally flawed” and “inconsistent” with later federal court rulings. She argued that federal territory ended at the low tide mark.
A few weeks ago, Governor Charlie Baker echoed that sentiment in a letter to the state’s congressional delegation, saying the federal agency had “overreached.”
He urged the members of the delegation to file legislation that would assert state sovereignty over the surrounding waters, insisting that the agency’s position ignores the state’s “commitment to the stewardship and sustainable use of all the area’s natural resources.”
“While the Commonwealth and town may be forced to take legal action, we are hoping to avoid this substantial cost through federal legislation clarifying the refuge boundary,” Baker wrote.
US Representative William Keating, a Bourne Democrat, has drafted such a bill but is waiting until the end of the congressional recess in September, in hopes that the agency and state and local officials can reach an agreement.
“Because of the ambiguity in the maps and the regulatory language, I feel the best thing to do is to work out a compromise,” he said. “I’ll exhaust every opportunity to get a compromise before filing the legislation.”
But some environmental advocates have raised concerns that Keating’s bill could open a Pandora’s box that would make it easier to mine, extract gas, or otherwise exploit federally protected lands for commercial purposes, such as in the Arctic National Wildlife Refuge, which Republicans have sought for years to open to drilling.
“Even a well-intentioned bill could open the door to mischief by congressmen who would like to take federal lands out of the refuge system and turn them over to states, which would use them for nonconservation purposes,” said Jack Clarke, director of public policy at Mass Audubon. “We think a bill is a slippery slope.”
Clarke recently wrote to local and federal officials, urging them to sign an agreement that would acknowledge the agency’s boundaries but allow state and local officials to manage fishing in the area.
There’s no evidence that the harvesting of clams and quahogs in the area has had a negative impact on wildlife, he said.
Keating acknowledged the concerns about congressional action, but he said a bill would be justified, because he considers the boundary dispute to be a “uniquely ambiguous situation.”
“Unlike other cases, it’s really not clear that this is federal land,” he said. “This is different.”
Fish and Wildlife officials have said they’re open to an agreement with the town, and that they have no intention of halting shellfish harvesting in the area, although they have banned the removal of mussels and horseshoe crabs, which are a source of food for migratory birds.
“We’re really trying to manage this refuge collaboratively,” Eustis said.
But Chatham officials see little hope in reaching an agreement.
By recognizing federal authority over the disputed waters, the town would be risking the livelihoods of about 330 commercial fishermen and 400 recreational fishermen licensed to harvest shellfish in the area, Chatham officials said.
The only acceptable agreement, they said, is for the agency to cede the land to the state.
“But they’re not budging, and so these negotiations are going nowhere,” Dykens said. “It’s mind-numbing.”
Local fishermen have been harvesting the waters around Monomoy for centuries.
Dykens, 63, began raking shellfish in the area after graduating from college, and while he no longer earns a living from his catch, he said it would be devastating for him and many others in the community to lose access to the waters.
“We’ve done nothing untoward to warrant this federal overreach,” he said. “It would end a way of life for hundreds of people.”