DEM was the loser in its rushed bid to temporarily stop enforcement of the town’s new June 10 ordinance regulating tournaments on the pond.
At an emergency hearing at 2 p.m., Superior Court Judge Jeffrey A. Lamphear refused to grant a temporary restraining order against the enforcement of the town ordinance that DEM had asked for.
The agency had filed the lawsuit against the town, court records show, at 12:28 p.m. on Friday, only shortly before the hearing.
The lawsuit came largely without warning to town officials.
Town Solicitor Andrew Teitz first learned about the lawsuit, and the afternoon emergency hearing, by voice mail message at 10:59 a.m. on Friday, he said, just a few hours before having to go to court to defend the town against DEM’s claims.
The town council, briefed at its meeting Monday night by Mr. Teitz, expressed uniform dissatisfaction. Councilor James Arruda, for example, said, “I find it ironic that DEM is trying to stop us from protecting the water supply.”
Another town official who was surprised was Frank Raposa, who has opposed the fishing tournaments on the pond that DEM has sanctioned, and has headed the effort locally to keep Stafford Pond water clean, and to deliver it that way to the nearly 1,100 households in town that rely on it.
Mr. Rapoza has been Moderator of the Administrative Board of the Stone Bridge Fire District for nearly 40 years, and he openly wondered about the lawsuit.
“We’ve dealt with the DEM before over the years. This isn’t the first time. Sooner or later people have to realize this is a drinking water supply. What’s their goal? Are they saying open it up to fishing, swimming, airplanes? There’s got to be an end to it somewhere,” he said.
“Look, we get an oil tanker on the rocks somewhere and we have DEM out there worried about the fish, the lobsters and so on,” he said. “But what about people’s drinking water supply?”Town Council member Bill Gerlach, who Monday night at the council meeting said he found DEM’s actions “troubling,” had said earlier in an interview that the lawsuit caught him by surprise.
Since early February, he had been coordinating talks between numerous town and DEM officials, and serving as spokesperson for the town contingent. He and his group had met numerous times with DEM representatives.
It was late January when the town first learned of the 16-19 fishing tournaments that DEM had scheduled for the pond, without notice to any officials in the town.
Mr. Gerlach was incredulous, speaking about DEM’s lawsuit. “It’s the 800 pound gorilla in the room. What are they doing here? It’s a serious question.”
Mr. Gerlach said, “from my perspective, when we forwarded the ordinance to [DEM] Director Janet Coit a day or two after its June 10 adoption,” the proposal submitted had been “substantially revised” to meet DEM objections.
A town filing fee of $50 was eliminated. A requirement for a police detail was dropped, as were requirements that porta-potties and trash receptacle be provided. The ordinance was silent about invasive species controls.
The ordinance requirements were few. Tournament organizers involving more than six boats must register their DEM permit for each tourney with Tiverton’s Town Clerk, and provide the clerk with identifying information (names, addresses, phone numbers, etc.) about participating boat owners, the number of boats involved, dates, arrival and completion times, and so forth.
Furthermore, tournament permit applicants must also provide the town with proof of liability insurance coverage in the amount of $1 million, that would cover environmental pollution and clean-up costs.Though it promotes and authorizes the fishing tournaments using its boat ramp on the pond, DEM has not provided the town with assurances it would cover pollution and clean-up costs if such became necessary as a result of activities it sanctioned on the pond.
“What remained in the ordinance,” said Mr. Gerlach, “were measures the town thought were important to protect the integrity of Stafford Pond. They were issues we hadn’t found common ground on.”
Chairman of the town Conservation Commission Tom Ramotowski, Ph.D., is also one of those who has been meeting regularly with town and DEM officials.
The lawsuit, he said, “shows how little DEM really cares about our water and our town. The ordinance does not prevent anyone from fishing. It only says they have to get a permit from the town and provide information [contact information for tournament participants, etc.] that DEM should have been collecting in the first place.”
Mr. Ramotowski said, “Under DEM’s procedures we really don’t know who’s out there on the water. We think it’s important to know who’s there, in case something happens. The insurance requirement is there because if something were to happen, it’s not the town’s responsibility to pay for the clean-up.”
What DEM says
The ordinance, claims the lawsuit, violates due process because it’s “arbitrary and capricious,” meaning lacking reason or good judgment or any rational connection between the requirements of the ordinance and the purpose intended to be served.
Furthermore, DEM claims, the use of the DEM-owned boat ramp into the pond, and therefore the matter of tournament boating on the pond, has been pre-empted by the DEM because it owns the ramp.
The only way boating on the waters of Stafford Pond could be regulated by the Town of Tiverton, claims DEM, would be if the local ordinance were “identical” to state requirements, and only then if DEM gave permission to the town to adopt it.
What the town says
Contrary to the claim by DEM, the wording in the town ordinance does not refer to the boat ramp or attempt to relate its provisions to the use of the ramp.
The ordinance deals with the water, and the local authority to protect the welfare, health and safety of town residents, by ensuring risks to water quality are monitored and that the town has knowledge about those boating on the waters and has the capacity of respond in the event of a catastrophe.
“We’re going to continue to fight for the safety and integrity of Stafford Pond,” said Mr. Gerlach. “It’s about the water, it’s always about the water.”
Mr. Gerlach said the town will soon be introducing the results of a $5,000 water quality study conducted by Dr. Ken Wagner, an environmental scientist, who’s authored an earlier study in 1996 about the pond.
“From my perspective it’s a math problem. We’re increasing the risk by continuing the tournament activity. We are remiss if we don’t take steps to minimize that risk.”
Next legal moves; non-complianceThe next move in the legal battle is DEM’s. The ordinance is in full force and effect. If DEM wants to halt its implementation, it must file legal paperwork and schedule a preliminary injunction hearing quickly.
As a practical matter, the need for the ordinance is disappearing. The fishing season is about over. There are no tournaments scheduled for August.
There are four tournaments left (Sept. 1, 8, 22, with the last on Oct. 12), two of which are registered under permits held by pond resident Brian O’Neill (who may not need access to the DEM boat ramp on the pond, the use of which forms the basis for DEM’s objection to the ordinance).
Thus far, non-compliance with the new ordinance appears rampant. The town may have to decide how it plans to enforce its new ordinance. That hasn’t happened yet.
At the time the ordinance went into effect — upon its passage June 10 — there were 13 tournaments still remaining in the season.
Town Clerk Nancy Mello said Friday, however, that her office has received no applications or filings for, and has no information about, any of those 13 fishing tournaments, including for the four tourneys yet remaining in September and October