Commonwealth v. One (1) Check in the Amount of $480.00 for 1,600 Pieces of Wild Oysters (Crassostrea Virginica)

APPEALS COURT

COMMONWEALTH vs. ONE (1) CHECK IN THE AMOUNT OF $480.00 FOR 1,600 PIECES OF WILD OYSTERS (CRASSOSTREA VIRGINICA)[1]

Docket:

24-P-507

Dates:

March 4, 2025 – September 26, 2025

Present:

Desmond, Ditkoff, & Englander, JJ.

County:

Barnstable

Keywords:

Shellfish. Municipal Corporations, Shellfish. Division of Marine Fisheries. Wampanoag Tribal Council. Forfeiture Proceeding. Practice, Civil, Forfeiture proceeding, Summary judgment.

Civil action commenced in the Falmouth

Division of the District Court Department on December 16, 2019.

The case was heard by Lisa F. Edmonds, J.,

on motions for summary judgment.

Jeffrey B. Loeb (Jonathan R. Loeb also

present) for Cheenulka Pocknett.

Maryanne Reynolds, Assistant Attorney

General, for the Commonwealth.

DITKOFF, J. This case involves the civil forfeiture of

wild oysters pursuant to G. L. c. 130, § 12, and G. L.

c. 257, statutes that have not yet been applied in our published case

law. The Commonwealth asserts that the

special, Commonwealth-favorable rules applicable to civil forfeiture of drugs apply

to such civil forfeitures. We write to

dispel that notion, which is not supported by the statutory text.

We consider whether the Commonwealth was

entitled to summary judgment, applying the usual rule that the plaintiff has

the burden to establish its case. We

conclude that the Commonwealth met its burden where the record showed that the

fisherman affixed tags to the oysters with his commercial fisherman permit

number and sold those oysters to a licensed wholesaler prohibited by law from

buying oysters from anyone who was not a licensed commercial fisherman. Accordingly, there was no genuine issue of

material fact concerning the capacity in which the fisherman was acting. The summary judgment record establishes as a

matter of law that the fisherman was acting in his capacity as a commercial

fisherman, and not as a Native American exercising his right to fish for

sustenance.

We also consider the fisherman's defense

that the civil forfeiture was barred by the fact that, after the oysters were

seized, the fisherman received a warning citation. We conclude that an environmental police

officer who has properly seized wrongly taken fish need not impose a fine or

suspend the fisherman's commercial fishing license to proceed with civil

forfeiture of the seized fish.

Accordingly, we affirm the order of the Appellate Division of the

District Court affirming the decree of forfeiture.

1.

Background. The basic facts are

not in dispute. The fisherman and

claimant, Cheenulka Pocknett, holds a valid commercial shellfishing permit

issued by the Division of Marine Fisheries (DMF). He is also a member of the Mashpee Wampanoag

Tribe and, as such, has certain rights to fish for sustenance. See Commonwealth v. Maxim, 429 Mass. 287,

289-292 (1999).

On Wednesday, December 4, 2019, Pocknett

and a friend took a large number of wild oysters from Green Pond in

Falmouth. Green Pond is closed to

commercial fishing on Wednesdays (as well as Sundays, Mondays, and Fridays). See Chapter 275, Article II, § 15(D) of

the Code of Falmouth.[2] See also

G. L. c. 130, § 52, par. 1 (authorizing municipalities to

regulate shellfish fisheries).[3]

Pocknett kept some oysters for personal consumption; the Commonwealth

took no action regarding those oysters and appears to recognize Pocknett's

right to take oysters for personal consumption.[4] Pocknett placed 1,600 oysters in containers

and affixed the containers with "DMF-required shellfish tags with [his]

name[], [his] DMF issued permit number, as well as the date, time and location

of the harvest." He then sold those oysters to Big Rock Oysters in

Harwich, a licensed wholesale shellfish dealer.

The same day, the Falmouth harbormaster

contacted the Massachusetts Environmental Police to report unlawful

shellfishing in Green Pond. The next

day, an environmental police officer went to Big Rock Oysters and inspected the

DMF shellfish tags that stated that the oysters were taken by Pocknett from

Green Pond on a Wednesday. The officer

told Big Rock Oysters that it should not have accepted those oysters. He instructed Big Rock Oysters to sell the

oysters but that the state would be seizing the proceeds.[5] The officer then called Pocknett and orally

advised him of the seizure and that he would be filing an action in libel (the

term used in the statute).

Three days later, the same officer issued

Pocknett a warning citation for possession of shellfish from an area closed to

commercial harvest, in violation of 322 Code Mass. Regs. § 16.09(2)

(2019).[6]

On December 16, 2019, the officer filed a

complaint in libel in District Court for forfeiture of a check for $480, which

appears to be the wholesale proceeds of the oysters. Pocknett promptly appeared as a claimant and

unsuccessfully moved to dismiss the complaint.

On the parties' cross motions for summary judgment, a judge of the

District Court granted summary judgment to the Commonwealth and entered a

decree of forfeiture.

Pocknett filed a timely notice of appeal

to the Appellate Division of the District Court. The Appellate Division affirmed the

decree. Pocknett then filed a timely

notice of appeal pursuant to G. L. c. 231, § 109. This appeal followed.

2.

Actions in libel. An

environmental police officer with "reasonable cause to believe, and [who]

does believe, that fish taken, held, kept, possessed, transported or held for

transportation or sale in violation of law" may search for such without a

warrant and "seize any such fish," as well as "any boat, vessel,

fish car, bag, box, locker, package, crate, any motor vehicle . . .

or any other personal property used in a violation of the laws relative to

marine fisheries and hold the same for forfeiture." G. L. c. 130, § 9, par. 1.[7] "All fish unlawfully taken, held,

possessed or dealt with contrary to" the marine fishery laws or regulations,

as well as "all boats, vehicles and apparatus used therein may, in

addition to any or all of the penalties contained therein, be seized, libelled

and forfeited to the commonwealth."

G. L. c. 130, § 12, par. 1. In the case of uncontaminated fish, the seized

fish may "be sold at private sale or public auction, and the net proceeds

of such sale may be libelled in the same manner and with the same effect as if

such proceeds were the property itself."

G. L. c. 130, § 12, par. 2. The statute explicitly states that the

procedures of G. L. c. 257 shall apply to such actions. G. L. c. 130, § 12, par. 2.

General Laws c. 257, in turn, applies

to "[p]roperty which has been forfeited for an offence" where

"no other provision is made."

G. L. c. 257, § 1.

Within fourteen days of the seizure, the person making the seizure must

"file a libel" in either Superior Court or District Court

"stating briefly the cause of the seizure without the details, and praying

for a decree of forfeiture."

G. L. c. 257, § 2.

The court then issues an order of notice. G. L. c. 257, §§ 4-5.[8]

"If a claimant appears, he may allege

and answer any matter material for his defence." G. L. c. 257, § 6.[9] If the libellant prevails, "the court

shall decree a forfeiture and sale of the property and a distribution of the

proceeds, or other appropriate disposition thereof." G. L. c. 257, § 7. If the claimant prevails, "the court

shall decree a restitution of the property to the claimant," G. L.

c. 257, § 7, and, if "the seizure was groundless," the

court shall award "reasonable damages" to the claimant, G. L.

c. 257, § 9.

In the District Court and the Appellate

Division, the Commonwealth repeatedly asserted that the special civil

forfeiture provisions relating to drug forfeitures apply to libels under

G. L. c. 257, thus dramatically lowering the Commonwealth's burden of

proof. Under G. L. c. 94C,

§ 47 (d), the Commonwealth seeking to forfeit proceeds or certain

instrumentalities of drug transactions need show only probable cause. See Commonwealth v. Martinez, 480 Mass. 777,

790-791 (2018). The "claimant shall

then have the burden of proving that the property is not forfeitable" or

that another exception applies.

G. L. c. 94C, § 47 (d). Accord Commonwealth v. One 2004 Audi Sedan

Auto., 456 Mass. 34, 37 (2010).

By its own terms, G. L. c. 94C,

§ 47, applies only to controlled substances and certain items related to

the distribution or manufacture of controlled substances. Its unusual burdens of proof and procedural

requirements apply only in that context.

As the Supreme Judicial Court pointed out, c. 257 "is of long

standing and the Legislature could have referred to it in enacting c. 94C

in 1971, but did not." Commonwealth

v. One 1976 Cadillac DeVille Auto., 380 Mass. 411, 418 (1980) (One 1976

Cadillac). Moreover, "[t]he fact

that c. 94C has a number of procedural provisions at variance with those

of c. 257 makes it all the harder to justify the analogical attraction to

it of § 2 of c. 257." One

1976 Cadillac, supra. The Commonwealth-favorable

burdens of proof in G. L. c. 94C, § 47, have no place in

litigation pursuant to G. L. c. 257.

Rather, we repair to the general rule that

the plaintiff, here the libellant, bears the burden to prove, by a

preponderance of the evidence, that the property is forfeitable. See Fidalgo v. Columbus McKinnon Corp., 56

Mass. App. Ct. 176, 183 (2002).

Presumably, the claimant bears the burden of proving any affirmative

defense by a preponderance of the evidence.

See DeWeese-Boyd v. Gordon College, 487 Mass. 31 , 43 (2021), cert.

denied, 142 S. Ct. 952 (2022). With

this understanding, we proceed to Pocknett's challenges to the decree of

forfeiture.

3.

Warning citation. Citing

G. L. c. 90C, § 2 (the "no-fix" statute), Pocknett

argues that the libel was barred by the warning citation issued by the

environmental police officer. Under that

statute, a police officer must issue a citation for a motor vehicle violation

at the time and place of the violation.

G. L. c. 90C, § 2, par. 4. Failure to do so "shall constitute a

defense in any court proceeding for such violation," unless one of several

exceptions applies. G. L.

c. 90C, § 2, par. 5. Accord

Commonwealth v. Foley, 496 Mass. 320 , 324 (2025); Commonwealth v. Ray, 95 Mass.

App. Ct. 848 , 851 (2019).

Consistent with the theme of this opinion,

the unusual citation procedures for motor vehicle violations cannot be imported

into the realm of marine fishery regulation.

The "no-fix" statute does not reflect a generally applicable

concept of law, but rather reflects a particular legislative solution "to

replace the old system, where the decision whether to issue a warning was made

over a three-day period, because that created the 'opportunity for subsequent

maneuvering or pressure' in favor of the well connected." Burlington Police Dep't v. Hagopian, 100

Mass. App. Ct. 720, 729 (2022), quoting Newton Police Ass'n v. Police Chief of

Newton, 63 Mass. App. Ct. 697, 699 (2005).

It is a sui generis system, designed to correct a problem particular to

the enforcement of motor vehicle violations.

Here, the officer seized the oysters and

then promptly called Pocknett to inform him that he had done so and that he

would be filing an action in libel.

Three days later, he issued a warning citation, rather than suspending

Pocknett's fishing license, as authorized by 322 Code Mass. Regs.

§ 16.11(1), or imposing a fine of $50, as authorized by Chapter 275,

Article II, § 23(B) of the Code of Falmouth. Nothing in that chain of events could have

led Pocknett reasonably to believe that the seizure would be undone. Similarly, both G. L. c. 130,

§ 12, par. 1, governing the seizure and forfeiture of fish, and 322 Code

Mass. Regs. § 16.11(1) use the word "may," meaning that the

Commonwealth has the discretion to seize or suspend, or both (or neither), as

the circumstances dictate. See

Cumberland Farms, Inc. v. Board of Health of Braintree, 495 Mass. 225 , 235

(2025), quoting Commonwealth v. Dalton, 467 Mass. 555, 558 (2014) ("The

word 'may' reflects 'the Legislature's intent to grant discretion or

permission' and does not impose a mandate"). Similarly, whether to seek a civil fine is a

matter of "prosecutorial discretion [that] belongs to the executive branch

alone." Commonwealth v. Kardas, 93

Mass. App. Ct. 620, 625 (2018). We see

no reason why the officer could not choose to seize and forfeit the fish but

seek no other penalty against Pocknett.

4.

Forfeiture. "We review a

grant of summary judgment de novo to determine 'whether, viewing the evidence

in the light most favorable to the nonmoving party, all material facts have

been established and the moving party is entitled to judgment as a matter of

law.'" Mittas Early Learning, LLC

v. MDC Properties - Westford Rd, LLC, 104 Mass. App. Ct. 615 , 617 (2024),

quoting Cottrell v. Laidley, 103 Mass. App. Ct. 483 , 489 (2023). Here, the Commonwealth had the burden of

showing that the oysters in question were "taken . . . [or] held

for . . . sale in violation of law." G. L. c. 130, § 9. Because the law in question is 322 Code Mass.

Regs. § 16.09, the Commonwealth had to show that the fish were taken by a

"[c]ommercial fisherman [who] harvest[ed] . . . from any growing

area, or part thereof, . . . that is not open to commercial

harvest."

Because it is uncontested that the oysters

were taken from Green Pond on a Wednesday, that Green Pond was closed to

commercial fishing on Wednesdays, and that the oysters were sold to Big Rock

Oysters, the only remaining question is whether Pocknett was acting as a

commercial fisherman or instead exercising his rights as a member of the

Mashpee Wampanoag Tribe to fish for sustenance.

In this regard, it is important to recall

that the Commonwealth did not seize the oysters that Pocknett kept for personal

consumption or to share with his friends and family. Rather, the Commonwealth seized only the

oysters that Pocknett sold to Big Rock Oysters.

Pocknett admits that he personally affixed DMF shellfish tags to these

oysters with his DMF commercial fisherman permit number. As a licensed wholesaler, Big Rock Oysters

was required to obtain the fisherman's name and DMF number from any person who

sold it fish. See 322 Code Mass. Regs.

§ 7.07(4)(b). Furthermore, it could

not "accept any species of fish from persons not commercially permitted by

DMF." 322 Code Mass. Regs.

§ 7.07(5)(d). In short, it was only

by acting as a commercial fisherman that Pocknett was able to sell the oysters

in question to Big Rock Oysters. Accordingly,

there is no genuine issue of material fact and it is established as a matter of

law that Pocknett was acting as a licensed commercial fisherman in taking these

particular oysters and holding them for sale to Big Rock Oysters. Summary judgment was properly granted to the

Commonwealth. The decision and order of

the Appellate Division is affirmed.

So ordered.

footnotes

[1] Cheenulka

Pocknett, intervener.

[2] As the

Supreme Judicial Court has stated that the prior rule against taking judicial

notice of municipal bylaws is "a relic of another era," we take

judicial notice of Falmouth's bylaws.

City Council of Springfield v. Mayor of Springfield, 489 Mass. 184 , 190

n.6 (2022). Accord Six Brothers, Inc.

v. Brookline, 493 Mass. 616 , 620 n.9

(2024).

[3] The town of

Falmouth created the Green Pond oyster fishery through aquaculture, and the

restrictions are presumably to prevent overfishing.

[4] Pocknett

asserts that he shared some of the oysters with friends and family, used some

shells for art and jewelry, and traded some for jewelry, food, and

gasoline. If so, those oysters are also

not a part of this case.

[5] The officer

did the same with the oysters sold to Big Rock Oysters by Pocknett's

friend. The friend did not appeal the

decree of forfeiture regarding the oysters he sold, and those oysters are not

before us.

[6] That

regulation makes it unlawful for a "[c]ommercial fisherman to harvest,

attempt to harvest, sell, or attempt to sell any shellfish from any growing

area, or part thereof, that is not open to commercial harvest by the [DMF] or

the municipality that regulates commercial harvest." 322 Code Mass. Regs. § 16.09(2)

(2019). All citations to sections of

title 322 Code Mass. Regs. in this opinion are to the version in effect in 2019

when the events at issue occurred.

[7] The statute

defines "fish" as "any animal life inhabiting the ocean or its

connecting waters including any crustacean or marine fish, whether free

swimming or free moving, and any shellfish or sea worms, whether or not

imbedded in the soil." G. L.

c. 130, § 1.

[8] The statutes

direct publication of the notice either in a newspaper in the county or by

posting it "in a public place," depending on whether the libel is in

Superior Court or District Court.

G. L. c. 257, §§ 4-5.

Here, notice was served at Pocknett's home by a deputy sheriff. This is a wise practice when the claimant's

identity is known.

[9] Even if no

claimant appears, the court may order that the property be returned to its

owner if the libellant is unable to demonstrate that it should be

forfeited. G. L. c. 257,

§ 6.