Ten Taxpayer Citizens Group v. Cape Wind Associates

Cape Wind Associates (Cape Wind) (defendant) proposed construction of an offshore windfarm on Horseshoe Shoals in Nantucket Sound. Nantucket Sound, located in Massachusetts between Cape Cod and the islands of Nantucket and Martha’s Vineyard, was almost entirely enclosed by Massachusetts’s territorial waters. The only exceptions were a one-mile band of federal waters connecting Nantucket Sound to the Atlantic Ocean and Horseshoe Shoals, the center portion of Nantucket Sound located more than three miles from any Massachusetts coastline. To gather the meteorological and oceanographic data necessary for the windfarm proposal, Cape Wind applied for, and received, a permit from the United States Army Corps of Engineers to construct a scientific measurement device station (SMDS) in Horseshoe Shoals. Cape Wind did not apply for permits from Massachusetts. Before Cape Wind began construction on the SMDS, Ten Taxpayer Citizens Group (Ten Taxpayer) (plaintiff) sought an injunction in federal court, arguing that (1) under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the federal government gave Massachusetts exclusive authority to regulate fishing in Nantucket Sound, including in Horseshoe Shoals; and (2) that authority allowed Massachusetts to regulate structures built in Nantucket Sound, like the SMDS, that could impact fishing. Cape Wind moved to dismiss, arguing that Massachusetts’s authority to regulate fishing in Nantucket Sound did not allow it to regulate construction activities in Horseshoe Shoals. The district court granted Cape Wind’s motion to dismiss, holding that Massachusetts’s authority over the Nantucket Sound fishery did not give Massachusetts the authority to regulate structures attached to the seabed in Horseshoe Shoals’s federal waters. Ten Taxpayer appealed.