SJC to Hear Oral Arguments on Nagog Pond Water Rights on Dec. 2

 

On December 2, the Massachusetts Supreme Judicial Court (SJC) will hear oral arguments in the lawsuit over which towns (among Concord, Littleton, and Acton) have rights to withdraw water from Nagog Pond. Because of Covid-19 restrictions, oral arguments are being held virtually, so the public can watch the live stream. 

Background

Nagog Pond sits entirely within the borders of the towns of Acton and Littleton, with the town line essentially dividing Nagog Pond in half. In 1884 (yes, 1884 — this is not a typo), the Massachusetts state Legislature granted the Town of Concord the right to use Nagog Pond waters to service the water needs of the town of Concord — as long as the towns of Littleton and Acton did not need this water. The 1884 law (An Act to Authorize the Town of Concord to Increase its Water Supply) foresaw that the towns in which the Great Pond lies (Acton and Littleton) could at some future point in time need to utilize this Great Pond as a water source.  Thus, the law established a legal, legislatively mandated mechanism by which the towns of Littleton and Acton could reclaim Nagog Pond as a water source for their respective residents.

In 2018, Littleton announced that it planned to utilize the 1884 law’s mechanism and obtain water from Nagog Pond. The Town of Concord sued the Town of Littleton in the Commonwealth’s Land Court. The Town of Acton joined the suit on the side of Littleton, because Acton and Littleton have the same status under the Law of 1884. As detailed in an earlier Green Acton post, the Land Court ruled in favor of Concord, accepting Concord’s argument that the Water Management Act (WMA) passed in 1985 “impliedly repealed” the 1884 law’s preservation of the water rights of Acton and Littleton. 

Littleton, joined by Acton, then appealed this decision to the SJC. The case is precedent setting because it is the first time that the WMA has been determined to supersede earlier laws. Such a finding could potentially impact not just the specific water law dealing with Acton, Littleton, and Concord, but all previous water laws enacted by the state Legislature — more than 600. Because of the precedent-setting nature of the Land Court decision, the SJC agreed with the pleadings of Littleton and Acton to bypass the lower appeal courts and hear arguments immediately in the state’s highest court. 

What the Parties Have Stated in the SJC Case 

Brief for the Appellant: Littleton Water District (July 21, 2020): Littleton submitted the first brief, because they were the ones who had appealed.   Littleton said that “implied repeals are disfavored in the law” and are appropriate only when an older law is “repugnant to” and “in conflict with” a newer law. That is not the case here, according to Littleton, which maintains that the Law of 1884 and the WMA can be “interpreted harmoniously” because the older law deals with the ownership of water rights, and the newer law deals with the regulation of water withdrawals. Moreover, there is nothing in the WMA’s language or the historical record to suggest that the WMA was intended to repeal the many earlier water laws that had been passed by the Massachusetts Legislature. It can’t be possible that the WMA can leave in place the rights given to Concord under the Law of 1884 while simultaneously taking away the rights given to Littleton under that same law, thus “cleaving the original promise in two.” 

Brief for the Intervenor-Appellant: Town of Acton (July 29, 2020): The Town of Acton then added that Acton is in the same situation as Littleton, except that we don’t want to withdraw water at this moment. 

Brief for the Appellee: Town of Concord (Sept. 11, 2020): Concord replied that in fact, the two laws cannot be harmonized, and thus, the older law has been impliedly repealed. Because Littleton and Acton did not exercise the rights they had been granted under the Law of 1884 prior to the passage of the WMA, the WMA “extinguished their unexercised rights.” The drafters of the WMA intentionally established strong protections for water users with a prior history of withdrawals, who were granted “registrations” that allow them to continue to draw the quantity of water they had been using pre-WMA. The WMA was intended to provide a comprehensive and “bold, new” approach to water regulation across the Commonwealth, which it could not do if it had to “give way to unexercised rights in hundreds of special acts that were adopted as part of an antiquated ad hoc legal framework.” 

Reply brief for the Appellant: Littleton Water District (October 2, 2020): Littleton then had a chance to reply to Concord’s arguments. Littleton argued that it doesn’t matter how comprehensive the WMA is; the WMA does not extend beyond regulatory permitting into underlying ownership rights. Littleton makes an analogy with real estate: to build a house on a piece of land, you must first own the land [analogous to property rights granted by the Law of 1884], and you must also obtain a building permit [analogous to the registrations and permits granted under the WMA.] Littleton also argues that the text of the WMA says nothing about exercised versus unexercised rights, and that it would be extraordinary to suggest that “valuable rights . . . somehow atrophy over time such that their repeal can be inferred easily and without consequence.”

Viewing SJC Oral Arguments 

The oral arguments in this case will begin around 9:00 on Wednesday, December 2, 2020.  [NOTE:  This was updated from original post, which said 9:30.  As of Dec 1, Town of Concord v Littleton Water Department is now the first case on the court calendar for Dec 2.]

To view the oral arguments, log into boston.suffolk.edu/sjc. (If this link does not work, search in a browser for “MA SJC oral arguments.”) The first link that should pop up is titled “Watch Oral Arguments Before the Mass Supreme Judicial Court.” Click on that link. With either alternative, the screen will say “live stream will begin at 9.” Click on the arrow to start the video. 

The SJC website states that each case lasts 30 minutes, with 15 minutes allowed to each side.  

UPDATE:   A recording of the oral arguments can be viewed on the Suffolk University Law School SJC archive page.  Search for Docket number SJC-12947 or look in December 2020. 

UPDATE #2:  The decision of the court can be read here.  The court concluded that “the WMA impliedly repealed the priority provision” of the Law of 1884, but that “it did not impliedly repeal the provisions of the 1884 Act that granted Concord the right to ‘take and hold’ the Nagog Pond waters… and that provided Littleton and Acton the right to take the water if needed.”   A commentary on the case was published in the National Law Review.