Carver: Ten Residents Group sues over illegal sand and gravel mining by A.D. Makepeace under the ruse of “cranberry agriculture”

Summary of Citizen Suit case: In August, 2022, a Ten Residents Group filed a lawsuit against AD Makepeace and its Read Custom Soils, and the Town of Carver Earth Removal Committee for damage to the environment, including the drinking water aquifer, from Makepeace’s industrial scale sand and gravel mining in Carver, Massachusetts. Members of the Ten Residents Group include 5 members of the Wampanoag Tribes: Herring Pond, Mashpee and Aquinnah.

The area where the mining is happening covers 330 acres, about 2.1 square miles in south Carver along Federal Road and between the Wankinco River to the east and the Weweantic River to the west.

At 46 Federal Road, Makepeace owns and operates Read Custom Soils, funneling millions of dollars of sand and gravel revenues through their scales. Read brags it is located in the heart of its “millions of cubic yards of sand reserves.”

Update on Court hearing, April 11, 2023: Makepeace and the ERC filed a motion to dismiss the Ten Residents case. Among the absurd arguments Makepeace made to the Court are: 1. That Plaintiffs cannot show actual or probable damage to the environment as required by the Citizen Suit Law, and 2. The law Plaintiffs are seeking to enforce, the Earth Removal Bylaw, is not an “environmental law” so the Plaintiffs have no case. Makepeace lawyers say the Bylaw is just to collect fees, not protect the environment.

Arguing in Court on April 11, 2023, Attorney Meg Sheehan told Judge Callahan: the “Earth” Removal Bylaw is an environmental law: the Earth is everything the trees, vegetation, topsoil, sand gravel and 30,000 years of Indigenous history buried in the Earth. Defendants motion should be denied and the case should proceed to trial against the ERC and Makepeace.”

Judge Callahan took the motion under advisement. A decision is expected in mid-May.

The Plaintiffs’ brief argues Makepeace and the ERC evade and violate the Bylaw by conducting commercial mining under the false pretense of a protected agricultural use.

On its website Makepeace claimed in October 2022 its industrial aggregate mining and distribution operations “emerges from bog construction and renovation”:

From AD Makepeace website, October, 2022

This is a ruse concocted to evade the local earth removal bylaw and to get sand and gravel to supply Read. Makepeace supplies 12 concrete and asphalt companies, some cranberry companies, and numerous other customers throughout New England according to its CEO: Affidavit of CEO/President Jim Kane.

Makepeace also conducts commercial mining at other locations in Carver and in Plymouth and Wareham and has done so for decades often without any permits at all. 

The lawsuit aims to shut down the sand and gravel operations while the damage to the environment is assessed and a forensic audit of Makepeace’s revenues from sand and gravel versus cranberries is conducted, to see if the mining meets the “necessary and incidental” legal standard. See below. Between 2011 and 2020, the Carver ERC gave Makepeace 4 permits to excavate and removal a total of 7.9 million cubic yards within the six-site area. 

Does this look like “cranberry agriculture” or a strip mining operation?

Below: AD Makepeace sites at 46 Federal Road and Hammond Street, Carver

Below: Before AD Makepeace mining the area was forested with uplands and hills up to 140 feet. Now it is leveled.

Makepeace’s earth removal permits were conditional on using the land for agriculture. ERC kept granting Makepeace permits in 2011, 2017, 2019 and 2020 even though Makepeace hadn’t started planting the bogs shown in their permit plans. You can see the permits and plans here.

Today, despite elven years of no cranberry projects, the ERC is still going along with the ruse and siding with Makepeace in the lawsuit and against the Ten Residents group including Carver residents.

Over one year ago, Save the Pine Barrens appealed to the Carver zoning board to stop Makepeace’s illegal earth removal. We showed the board Makepeace had not built any of the agriculture projects shown it its earth removal permits. On September 28, 2021 CEO Jim Kane, with his lawyer at his side, told the zoning board the cranberry projects are “underway” – watch the You Tube. Today, over a year later, and eleven years since the company first started strip mining at the sites no one berry has been sold – or even planted from what photos show.

The company has given the court no timetable for building the bogs, no schedule, no progress report or estimated time for completion. Here’s a short video of the sites.

The value of sand and gravel per acre far outweighs the value of cranberries per acre– the earth AD Makepeace is mining from the three active sites is estimated to be at worth $56 million – the 7.9 cubic yards is enough to fill a football field almost ¾ of a mile high. If the bogs are ever built, they will generate about $300,000 in annual revenue from cranberry sales at today’s prices (cranberry sales are falling). CEO Jim Kane says he “hopes” the cranberry bogs will be built some day.

Who is kidding who? This is a mining operation, not a cranberry company building a cranberry farm.

The Lawsuit

The lawsuit makes these claims against Makepeace:

1. Illegally conducting sand and gravel mining for eleven years at three sites with permits obtained from the ERC under the pretense of building cranberry bog projects and not building the cranberry projects.
2. The permits are expired – they were valid for one year unless extended and were not, and no permit can last longer than 5 years without a public hearing which was not done.
3. Conducting sand and gravel at three sites between 2017 and 2021 without permits.

The Group brought the lawsuit under General Laws Chapter 214, Section 7A, the state “Citizen Suit Statute.” This unique state law gives ten residents the right to sue to stop environmental violations when government authorities refuse to act. The Group sued the Carver Earth Removal Committee, a seven member committee responsible for preventing illegal earth removal in the Town. It can issue permits only under specific conditions. It failed to require Makepeace to meet the Bylaw conditions and is letting the company operate without permits.

The Carver Earth Removal Committee

Sand mining is regulated at the local level in Massachusetts. Municipal regulators like the Carver ERC are complicit in allowing this industry to cause damage to the environment because they do not apply the law the way it is written.

The ERC issued Makepeace four permits that are challenged in the lawsuit for earth removal at three of the sites. At the other three sites, Makepeace got no permits, claiming the sand and gravel was going to be used on its cranberry bogs for maintenance such as winter sanding. As of 2022, the ERC has ceased to function  – it was always just window dressing. Members of the ERC have conflicts of interest – are in business with Makepeace, work for Makepeace or are in the cranberry industry themselves.

Taking away sand and gravel that protects the Aquifer

Makepeace’s mining sites are in the Plymouth Carver Sole Source Aquifer and globally rare Atlantic Pine Barrens ecosystem. They are in the Carver Water Resources Protection District. The region has vast deposits of globally rare “silica” sand, a global commodity used in manufacturing, concrete, building etc. Sand is the second most extracted resource on earth after water. 

Sand has been mined in the area for hundreds of years but in recent decades mining operations has become rampant.

The trees, vegetation and sand and gravel filter and protect the Aquifer, which serves 200,000 people with drinking water. It is vulnerable to contamination because the soils are permeable and pollution can travel easily.  Groundwater in the area is already contaminated in some areas.  The Group’s hydrology report states that the earth removal operations by AD Makepeace threaten private and public drinking water supplies nearby and has negative impacts on groundwater flow, rivers and forests. Read hydrologist Scott Horsley’s affidavit about the impacts of Makepeace’s mining in this area on water and private and public drinking water wells.

Makepeace’s marketing for Read Custom Soils refers to this aquifer protection as its own private “sand reserves:”

The Injunction

On September 19, 2022, the Group filed a motion for a preliminary injunction asking the Court to put a pause on Makepeace’s earth removal operations while damage to the environment is assessed and a forensic audit is completed. See legal filings here, including affidavits.

The Citizen Suit Statute authorizes the Group to ask the judge to issue an injunction to prevent actual or probable damage to the environment in violation of a law whose major purpose is to protect the environment. The Carver Earth Removal Bylaw is such a law.

Read the Group’s brief to the court here on why the injunction should be granted. Superior Court Judge Buckley sided with Makepeace, believing all the misinformation presented to the court by affidavits from Jim Kane, Read manager Ierardi, and a so-called water expert.

Makepeace, joined by the ERC, makes a number of spurious arguments in trying to convince the judge not to issue the injunction: that the Group should have sued sooner, the law doesn’t entitle Plaintiffs to bring the case, and – outrageously – that the Earth Removal Bylaw is intended to facilitate earth removal, not protect the environment or public health, safety and welfare – a prerequisite to bringing the lawsuit. Read Makepeace and the ERC’s opposition to the motion here.

The Group’s reply to Makepeace’s opposition is here.

Dec. 8, 2022: Superior Court Judge Buckley sides with Makepeace, turning a blind eye to the facts, supporting the corporate destruction of the environment and denies injunction; case continues to trial

How Makepeace is violating the Earth Removal Bylaw

Earth removal is prohibited in all Carver zoning districts without a permit from the ERC, unless exempted, which Makepeace’s is not.  Makepeace’s land is zoned “agricultural-residential.” A landowner cannot do earth removal unless it shows it is for an agricultural or residential purpose, and then it has go by the Earth Removal Bylaws and qualify for a permit. When a landowner claims that the earth removal is to build an agricultural project like cranberry bogs, it must show the earth removal is “necessary and incidental” to the agricultural project. That means the land isn’t just being used for commercial mining, but the earth removal is “incidental” and minor in comparison to the agricultural project. These are strict criteria. Makepeace does not meet the criteria for the law because it is using the and for industrial scale sand and gravel mining, not agriculture — and its affidavits in court establish this.

The law on earth removal in Massachusetts is clear. “Incidental” means just that – its minor in relation to the primary use of the land. For example, your house is a residential use – you can’t build Disneyland and say it’s “incidental” to using your land for a home.

The state’s highest court, the Supreme Judicial Court, has strict criteria for what is an “incidental” land use. When a landowner is claiming they want to take sand and gravel off their agricultural land to build a bog for example, the court looks skeptically and carefully. It looks at how much money is the landowner going to make from sand and gravel vs. growing and selling cranberries. In a Plymouth case from 1991, the court found a 460,000 cubic yard earth removal operation in build a bog was not “incidental” but was a gravel operation, prohibited in the residential zone because it was a quarrying operation. 

Here, Makepeace cannot pass the test. The 7.9 million cubic yards of sand and gravel is worth about $56 million. On the 150 acres, Makepeace says it is going to build about 37 acres of cranberry bogs.  According to Makepeace’s numbers in Jim Kane’s affidavit, the company gets about 220 barrels of cranberries of each acre of bog.  In 2021, cranberries sold for $39 per barrel. So, in the future, if Makepeace builds the bogs, they would make about $300,000.00 per year selling cranberries.  Sand gravel revenues far outweigh growing cranberries.

Makepeace’s entire position, backed up by the Carver ERC, is that the industrial scale sand and gravel mining operations are only ancillary to agricultural operations when their own submissions to the Court show sand and gravel mining and sales is a massive and distinct business all its own – the sales and profits of which may exceed profits from selling cranberries.

The Court will decide whether the injunction should issue – or not. Stay tuned!

Get Involved!

If you live in Carver, attend the ERC meetings. Let your Selectboard know you want this earth removal stopped to protect our drinking water!

Join Save the Pine Barrens, donate to support our work, and get in touch to volunteer! email: environmentwatchsoutheasternma@gmail.com

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