Cape herbicide court case awaits ruling

Mar 8, 2017
By Rich Eldred

When is a dusty old expired court case still a live case?
      When it involves herbicide use under the power lines of Cape Cod. Last August four towns — Brewster, Orleans, Eastham and Dennis — got together, pooling $60,000 to appeal the Massachusetts Department of Agricultural Resources’ approval of Eversource’s Yearly Operational Plan (YOP) for 2016. They requested an adjudicated hearing before the Pesticide Board, which is comprised of 13 representatives from different state agencies, farming interests and the industry.
      You might’ve noticed the calendar has turned and we are now in 2017, and Eversource unveiled a new YOP for 2017 on Jan. 27, and that appeal of last year’s plan remains in the ether.
      ”The towns asked for an adjudicated hearing, that’s like an appeal of the decision by MDAR, to grant Eversource the right to spray,” Attorney Bruce Taub, who represents the four communities, explained. “During the pendency of this the case was assigned to a magistrate from the Division of Administrative Law and Appeals and when it got to the DALA the lawyers for Eversource filed a motion to dismiss.”
      The issue of herbicide application on the right-of-ways has been in court before, been before the Assembly of Delegates, involved almost all the boards of selectmen on Cape Cod and roiled activists provoking demonstrations and tree cutting expeditions for years.
      ”They said you towns don’t have standing because you don’t meet the criteria for an aggrieved party,” Taub said of the utilities argument. “Whether a person has standing of not is very case specific. So the judge asked us to prepare a memorandum but the claim became moot when 2016 was over and the spraying was done.”
      As it happened Eastham was not actually slated for herbicide use in 2016 but the other three towns were. Once they filed the appeal Eversource opted not to use herbicides in Orleans, Brewster and Dennis.
      ”One nice thing is that they didn’t spray in the towns that appealed last year,” Taub said. “So I consider that a win.”
      However, neither side considered January 1, 2017 to represent a victory.
      ”The lawyers for both sides said every year we come here and try to get a ruling and we’re messed up by the calendar. There’s a glitch every time. So the judge said he will rule so we are still waiting,” Taub said.
      However, the ruling, if it comes, will only determine whether the four towns have the legal standing to challenge MDAR’s approval of the vegetation management plan.
      The 2017 plan lists Barnstable, Bourne, Brewster, Chatham, Dennis, Edgartown, Harwich, Oak Bluffs, Orleans, Sandwich and Tisbury as slated for herbicide use. The specific right-of-ways on the Lower Cape include Goose Pond in Chatham to Orleans, Harwich to Orleans and Dennis to Harwich.
      ”It is hoped the towns will again appeal this time because they wouldn’t have to wait because we will have a ruling on standing,” Taub said. “We have not heard from the towns on whether they wish to proceed.”

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