Carver: VICTORY in Citizen Suit to Prevent Damage to the Environment from Makepeace Sand Mining

PRESS RELEASE: FOR IMMEDIATE RELEASE  

Legal Victory for Environmental Protection

 Court Upholds Grassroots Group’s Case Against A. D. Makepeace Company in Sand Mining Case

September 22, 2025, Plymouth, Massachusetts. In a landmark decision on September 19, 2025, the Massachusetts Appeals Court ruled unanimously in favor of a grassroots group’s lawsuit to protect the environment from the devastating impacts of sand mining by A. D. Makepeace Co. of Wareham and its subsidiary, Read Custom Soils LLC in Carver. The Court vacated the lower court’s dismissal of the case and allows the case to go to trial.

The grassroots group of individuals and Community Land & Water Coalition (formerly Save the Pine Barrens) filed the case in 2022 under the state’s powerful Citizen Suit Law to enforce the Town of Carver Earth Removal Bylaw. The Citizen Suit Law allows a group of ten residents to sue to prevent “damage to environment” when a person or company is violating an environmental law. The law requires that the group first give notice to the Attorney General and the government agency responsible for enforcing the law and if they do not act, the group  can step in to enforce the law.  

The grassroots group gave notice of the violations to Attorney General and the town but neither acted. The group stepped in to enforce the lawby filing the lawsuit in 2022. The lawsuit claims Makepeace is violating Earth Removal Bylaw by mining without valid permits and exploiting protections for legitimate cranberry agriculture to avoid prohibitions against sand mining. The Carver Earth Removal Committee granted permits year after year even though Makepeace did not build the cranberry bogs it showed on the permit plans.  The Bylaw prohibits stand alone sand mines like the ones Makepeace is operating. The lawsuit claims actual or probable harm over a decade to the Commonwealth’s natural resources, including the Plymouth-Carver sole source aquifer, a vital drinking water source for the area.

A key quote from the Appeals Court highlights the environmental damage from sand mining:

“Land – earth – is a critical natural resource, and Carver regulates earth removal activity by bylaw to protect the use of that natural resource and to guard against the environmental effects of such uses. There can be little doubt that the systematic stripping of earth and topsoil — not to mention tree removal, leading to increased exposure to erosion — constitutes damage to “soil resources.”

“This ruling is a testament to the power of collective action in the fight to protect land and waters and for environmental justice,” said Attorney Meg Sheehan who represents the plaintiffs. “Other towns, such as Wareham, Halifax and Plymouth, have similar earth removal laws and the Court has reinforced the legal framework that empowers everyday people to advocate to protect our land and water.”

More information: The case name is Troy Currence and others vs. A.D. Makepeace Co. and others, Appeals Court case No. 24-P-666.www.communitylandandwater.org

Contact: Meg Sheehan, Attorney for Plaintiffs ecolawdefenders@protonmail.com

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Background 

Since at least 2008, Makepeace has been operating a vast sand mine over about 2 square miles in Carver. In August, 2022, a More Than Ten Residents Group filed a lawsuit against AD Makepeace, its subsidiary, Read Custom Soils, and the Town of Carver Earth Removal Committee (ERC) under the state’s Citizen Suit Law for Damage to the Environment.  The name of the case is Troy Currence and others v. AD Makepeace Co. and others. 

Makepeace’s earth removal permits were conditioned on using the land for agriculture. The 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. See the the permits and plans here.

As of 2025, the ERC is still going along with the ruse and siding with Makepeace and extending its permits. In 2022, AD Makepeace CEO told the Carver Zoning Board of Appeals the bogs were “underway”. Watch the You Tube. 

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 three of the six mining 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.

 In 2023, a Superior Court judge dismissed the case saying the law the case seeks to enforce, the Carver Bylaw, does not have as its purpose protection of the environment. The Bylaw says its purpose is to “protect the public health, safety and welfare.” Makepeace and the Town of Carver argue the law is to make earth removal easier. On June 12, 2024, the Group filed an appeal with the Massachusetts Appeals Court. On September 19, 2025, the Appeals Court sided with the Group and issued the Currence v. Makepeace Appeals Court Decision  allowing the case to go ahead.

Below: AD Makepeace mining site on Federal Road, 2023.

The Location

The Citizen Suit  lawsuit challenges A.D. Makepeace’s sand mining in south Carver. The entire area is designated as an Environmental Justice community — one already suffering more than its fair share of pollution.

Makepeace’s mining in the area covers 330 acres, about 2.1 square miles. It is divided up into six sites, shown below. The area is along both sides of Federal Road and between the Wankinko River to the east and the Weweantic River to the west. Makepeace uses the sand and gravel to supply its affiliate Read Custom Soils at 46 Federal Road.  Read brags it is located in the heart of its “millions of cubic yards of sand reserves” and sells sand and gravel throughout New England.

The lawsuit aims to shut down the sand and gravel operations to prevent damage to the environment.  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. The map below shows the mining locations challenged in the lawsuit. They are now sand mines and the land is cleared.

Site 1: 46 Federal Road: April, 2025: mining since 2008 with repeated permits even though bogs not built.

 Drone video here on You Tube

Site 2: 24 Federal Road: Town granted permit in 2019 for 19 acre “reservoir”

The construction of this surface reservoir will involve excavating 20 acres to a depth of 15 feet below the water table. The reservoir will be supplied by groundwater and is interconnected to our Sole Source Aquifer. Any chemicals or pesticides used on site will drain into the reservoir, ultimately contaminating the groundwater.

Site 3: 59 Federal Road: Town granted permit in 2020 for massive 4 million cubic yard mine over 85 acres.

In 2020, the Carver Earth Removal Committee (ERC) granted Makepeace a permit for 85 acres of sand mining and 4,045,000 cubic yards of sand. At about $16.25 dollars per cubic yard of sand, this project values at about $65,000,000 dollars. 

In 2025, the ERC extended the permit, even though it is illegal because it was granted under the ruse of “cranberry agriculture”.

This abuts Cranberry Village, Pine Tree Village, Copper Lantern Lane, and Deer Hill Lane neighborhoods.  Cranberry Village and Pine Tree Village, are environmental justice neighborhoods. Read more about the impacts to the environmental justice communities here. 

This is the largest single ongoing sand mining operation since the Town of Plymouth approved the permit for 7,000,000 cubic yards of sand to  Makepeace in 2014 for the Frogfoot river mine. Read about ADM’s sand mining project at Frogfoot Brook here.

Sites 4, 5 and 6: Federal Road solar sites: between 2014 and 2024, Makepeace conducted sand mining and land clearing claiming it was using the sand for it cranberry farming. The company sold the sand commercially. It never obtained earth removal permits for these sites.

Makepeace mines the sand for sale via its Read Custom Soils business

Makepeace mines the sand and sells it through its company, Read Custom Soils. See more here: An overview of Read challenges to operation of the facility

Makepeace’s CEO admits that the sand mining is to supply industrial and commercial uses and that the cranberry company could not survive without profits from sand mining. The company supplies 12 concrete and asphalt companies, some cranberry companies, and numerous other customers throughout New England according to the Affidavit of CEO/President Jim Kane.

Above: From AD Makepeace website, October, 2022

Who is 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.

Threatening the underground drinking water Aquifer

One of the key concerns with sand mining is that it is being done in the Plymouth Carver Sole Source Aquifer and in the Carver Water Resources Protection District. 

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. 

In 2020, world renown hydrologist Scott. W. Horsley gave his expert opinion on Makepeace’s earth removal at the Federal Road sites. He states that there will be “significant alterations to the hydrology and water quality in downstream water resources. Additionally, it significantly increases the vulnerability of water resources due to the substantially reduced depth to groundwater.” Read his full report here. 

Key milestones in the Citizen Suit Case

August, 2022: Case filed in Superior Court.

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.

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. 

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.

2023: Superior Court grants Makepeace and Carver ERC motion to dismiss the case

2023: Citizen group appeals

September 19, 2025: Appeals Court issues Currence v. Makepeace Appeals Court Decision 9-19-25

The “cranberry agriculture” loophole explained

Makepeace and the ERC claim the mining is agriculture. This allows Makepeace to exploit legal protections for legitimate cranberry agriculture. If they did not classify the mining as “agriculture” it would not be allowed under Carver’s 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 claims 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. 

 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.