'More than just soil and stone': Herring Pond Wampanoag Tribe fights against development on another burial site
Less than four miles north of where a similar battle unfolded just a few months ago in Bournedale, the Herring Pond Wampanoag Tribe is again fighting against a proposed development on their ancestral lands. This time, the tribe, joined by other residents, is focused on saving a parcel of land located at 71 Hedges Pond Road in Plymouth. The land is part of the Great Lot — approximately 2,600 acres that were allotted to the tribe as reservation land.
The Town of Plymouth ended up owning much of the land, likely due to tax takings. The site contains significant cultural value, and tribe members have attested that it is a burial site.
History of the land
In 1977, Plymouth acquired 175 acres of land for a landfill, but abandoned the plans in the 1980s. In 1993, Town Meeting voted unanimously to place the land in the custody of the conservation commission, designating it the Cedarville Conservation Area.
“Despite this unanimous vote, the Conservation Commission, town select board and staff never did what the Town Meeting directed them to do—protect this land,” the Community Land and Water Coalition’s website reads.
The Community Land and Water Coalition is a grassroots network of groups and individuals with a mission to “protect, preserve and steward the land and water resources of Southeastern Massachusetts.” The coalition has been fighting against the proposed development alongside the tribe and non-native residents.
In 2018, the planning department proposed the Cedarville Enterprise District and recommended that Town Meeting vote to transfer part of the 175 acres from the conservation commission to the select board. Attorney Margaret E. Sheehan, who is representing the petitioners, speculated at a zoning board of appeals meeting on April 7 that the town recommended this article with plans to sell the lot to the Plymouth Foundation already in mind. The vote required the town to set aside 134 acres for conservation in exchange for the development.
In 2022, the select board sold the land to the Plymouth Foundation for $1. Sheehan reported that seven foundation members were also municipal employees, including the select board chair, the town manager and the town planner. The purchase and sale agreement included an escrow agreement that stated that when the foundation sold the land, it would pay the town $2 million to be held in escrow for improvements to an intersection.
The Plymouth Foundation sold the land to E.J. Pontiff, a construction firm owned by Eric Pontiff. Pontiff is also an owner and grower of Ocean Spray Cranberries. Using the name Standish Investment Group, Pontiff and his team filed a permit application in July 2024.
The application proposed a four-building complex, including a 176,000-square-foot warehouse with multiple loading docks, a 75,000-square-foot recreational facility and two 20,000-square-foot buildings currently labeled as a lumber yard.
Those opposing the project, however, claim it is a front for a sand mining operation.
In December 2024, the planning board approved the project despite the tribe’s request to conduct an archaeological study, the Cedarville Steering Committee’s recommendation for denial, and more than 1,000 letters sent by residents asking for the board’s denial. The building inspector issued the permit on Jan. 16.
Residents first requested a cease-and-desist in February. The site work began in January and continued throughout the cease-and-desist process. According to Sheehan, trees were pulled up by their roots. The marketable timber was sold, the roots and stumps were “presumably” pulled up, the “globally rare” pine barrens were turned into slash and the site was graded.
The cease-and-desist was denied; the denial was appealed through the zoning board of appeals on April 7. Although they did not do so at prior hearings, the chairman and two alternate members recused themselves from the discussion due to their relations with the Plymouth Foundation.
Attorney Sheehan’s arguments
Sheehan attended the April 7 meeting on behalf of residents who were appealing the building permit and the denial of the cease-and-desist order. Sheehan asserted the permit violates several parts of the zoning bylaw section, entitled Natural Features Conservation, including: Section A, which is meant to prevent cumulative damage to landscape and topography or degradation of nonrenewable land resources of the town; Section B, which includes vegetation, topography and soil preservation; and Section C, the earth removal regulation, which requires earth removal to be “incidental.”
Sheehan also argued that Pontiff’s team does not have a valid building permit. She could only locate a building permit for one of the four buildings, and that permit did not have construction documents. According to the zoning bylaw, “the project has to have all the permits applied for and obtained for that end use.”
“The building permit for the one warehouse has been appealed to the state building code appeals board because there were no construction documents upon which to base a building permit. That appeal to the state building appeals board stays that building permit, so there are no permits for this project,” Sheehan said. “This section of the bylaw was intended specifically to address this kind of scheme where someone applies for a permit to do earth removal with a vague promise of a project down the line.”
When filling out the application, Pontiff was required to indicate whether historic resources were on the site, which he did not. However, the building commissioner was informed before issuing the permit that 71 Hedges Pond Road is a historic site and requires an archaeological study.
Sheehan also claimed that the town failed to follow Article 97 of the Massachusetts Constitution and three other laws that require a two-thirds vote of the Legislature when taking land out of conservation.
Although the 2018 Town Meeting vote required Plymouth to place 134 acres of land into conservation in exchange for the 175 acres it took out, that did not happen. According to Sheehan, 51 lots were identified as potential conservation land at the 2018 Town Meeting. However, four are “phantom lots” that no one has been able to locate, and one is part of the town dump.
Sheehan also alleged that the Plymouth Foundation has questionable practices.
“The Plymouth Foundation sold the land to Pontiff for $3.4 million, but that was just basically an IOU. The Plymouth Foundation already had $2.3 million in its checkbook according to its tax returns, much of that from sand and gravel mining, including at the property adjacent to 71 Hedges Pond Road,” Sheehan said. “The Plymouth Foundation claims it is a 501(c)(3) and not a government body. However, it certainly acts like one and, in fact, since 2014, the Town of Plymouth taxpayers have paid the Plymouth Foundation almost $2 million to keep the foundation running and apparently to pay for the staff of the foundation.”
Sheehan’s final argument was that the earth removal — which was initially proposed to be 350,000 cubic yards, but was revised to 270,000 cubic yards — is not incidental. Due to a global shortage of rare silica sand, the removed sand is estimated to be worth $12 million in today’s market.
Tribe asserts its rights
Members of the Herring Pond Wampanoag Tribe and its sister tribes have requested action from town and state officials.
In December 2024, tribe chairwoman, Melissa A. Ferretti, wrote a letter to the planning board, select board and building commissioner, expressing the tribe’s concerns and calling on them to comply with Article 32 of the United Nations Declaration on the Rights of Indigenous Peoples, which the U.S. Department of State endorsed in 2010.
“Laws and policies give us as Indigenous people an inherent right to be not only consulted when human activities harm our ancestral lands and heritage,” Ferretti wrote. “Under these state and federal laws, Indigenous peoples have the right to free, prior and informed consent on territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”
Ferretti requested that the town mandate, at a minimum, an archaeological survey conducted by an independent archaeologist, which would be overseen by a tribal historic preservation officer and funded by Pontiff.
Ferretti also referenced Section 106 of the National Historic Preservation Act, which requires federal agencies to consider the effects on historic properties related to any project they undertake or that receives federal financial assistance, permits or approvals. The tribe did not receive a response to their letter in December, so Ferretti and Sheehan wrote to Gov. Maura T. Healey on Feb. 18.
“One year ago, you released a first-ever Environmental Justice Strategy and established an Office of Environmental Justice and Equity (OEJE) to ensure ‘the fair and equitable distribution of all … environmental … benefits and burdens,’” the letter reads. “This mining operation is an act of grave injustice.”
As of April 11, Gov. Healey had not responded.
“In November, [Gov. Healey] just granted us as a state-recognized tribe. If you look at the executive order … it says we’ve been here for centuries and our land expands from Cape Cod to what is now Plymouth,” tribe member Miciah Stasis said. “[She] just acknowledged our existence of being here for centuries and where our land expands from, and now we’re here saying, ‘Hey, they’re trying to dig up on our people’ and [she’s] nowhere to be found.”
Residents speak out
Dozens of people — including tribe members, non-native residents, and even a Maine resident whose ancestors were pilgrims on the first boats — attended the zoning board of appeals meeting on April 7 to express their opposition to the work at 71 Hedges Pond Road.
Virginia E. Davis, a town meeting member, said she had a “big lump in [her] throat” when seeing what had been done to the land.
“I feel guilty because in 2018, I voted for this. It’s because we did not, as town meeting members, request to go down and look at this land,” Davis said. “We would never have voted for this, never. I feel guilty. I will carry that because of my ignorance. And I know many, many other town meeting members feel the same as I do. And the whole thing with Plymouth Foundation is very disturbing.”
Ferretti told the story of her childhood when she was raised by a tribal elder, Verna May Harding. She described the Cedarville woods as her childhood “sanctuary, classroom and [her] connection to the stories of [her] ancestors.” Ferretti learned to gather, forage, track and fish in those woods.
“Those experiences instilled in me not only traditional knowledge, but a deep sense of responsibility to protect the land and my ancestors that had given us so much,” Ferretti said. “Watching the land at Hedges Pond be clear-cut without even the minimal of archaeological studies required to ensure its integrity is an injustice of its highest order. Those lands hold more than just soil and stone; they hold the stories of our ancestors. Without proper studies, we may never know what may be lost there.”
Throughout this process, members of town boards and supporters of the development have questioned why the tribe is just now voicing their concerns.
“A lot of the reason that we were there at the eleventh hour is because we weren’t consulted with and because there was not that basic respect and dignity for the tribe,” Ferretti said in a follow-up interview with the Enterprise. “The consultation never happens for one reason or another. Generally, because they don’t feel like they have to do it; secondly, because they don’t want us to know, because they don’t want us to stop it. They do it all quiet-like. Plymouth Foundation’s meetings are apparently held quietly and silently because a lot of shady stuff happens that we never hear of. By the time we see it, it’s too late. And that has been history repeating itself for decades and decades and decades; for hundreds of years.”
Ferretti also argued that if the town was going to sell the land for $1, they could have given it back to the tribe.
“It’s all for money. We could have put something really awesome on that property as well,” she said. “That’s our intention, to get some land back and put not a casino, but our goal is to build a museum, to build a cultural center that we can put the history in for all of Plymouth to see and for all of Bourne and the local people to understand the Wampanoag history.”
Brian Weeden, chairman of the federally recognized Mashpee Wampanoag Tribe, spoke in support of his sister tribe at the zoning board of appeals meeting. He cited Native American Graves Protection and Repatriation Act (NAGPRA) laws, noting that the town of Plymouth was required to notify federally recognized tribes — including the Mashpee Wampanoag Tribe and the Wampanoag Tribe of Gay Head (Aquinnah) — before beginning such a project.
“This is happening right in our backyard, and it is our duty to speak on behalf of our sister tribes. It’s not appropriate because you all have been robbing graves for the past 400 years since you stepped off that boat,” Weeden said. “Enough is enough. If somebody was digging up your grandparents and your great ancestors, what would you do?”
Ferretti added that towns often misunderstand NAGPRA laws. According to Ferretti, while NAGPRA defaults to federally recognized tribes for federal projects, it also includes protections for state-recognized tribes or even tribes that aren’t state-recognized, but have a “fact-based connection to that tribal land.”
Kerina Silva, a tribe member and local attorney who successfully fought against a similar project at 829 Scenic Highway in Bourne, grew emotional when testifying before the zoning board.
“I would ask this board to remember that we are a government; our tribe is a government. We are recognized by the State of Massachusetts via Executive Order 637. As a government, I would urge you all to read that order because we have a government-to-government relationship with you,” Silva said. “We are not here asking for a seat at the table; we already have one. We are entitled to one. Please listen to us, hear us, see us. We are here, we never went anywhere and we’re not leaving.”
Attorney Crossen’s rebuttal
Michael K. Crossen, Pontiff’s attorney, argued that Sheehan’s arguments did not meet the burden of proof to appeal the denial of the cease-and-desist.
According to Crossen, general bylaws and zoning bylaws allow an “aggrieved person” to appeal an order.
“In order to be that aggrieved person, you would have to be able to demonstrate that you have a non-generalized and non-speculative injury. That is, you have demonstrated that you have an injury that is unique to you,” Crossen said. “That is not simply an injury to the entirety of the community, or respectfully, to the tribe, but rather to the particular person who has filed the petition. That is the standard here, and they have not satisfied that standard.”
Crossen also claimed that the appeal to the zoning permit was not filed within 30 days of its issuance as required. He also fought back against Sheehan’s allegations that the building permits were invalid and insisted that the earth removal was, in fact, incidental, with a value of approximately $1.5 million.
“Sheehan has argued that there was an obligation on the part of the town to bring this particular site and this particular project to the attention of the Massachusetts Historical Commission; that’s wrong,” Crossen said. “The statute provides that in the case that the state is issuing a permit, or the state is providing funding for a project, or the state is transferring land for the purposes of the project, then that state body has an obligation to make the Massachusetts Historical Commission aware of the project.”
Crossen added that the property is not identified in the inventory of archaeological and historic properties in the commonwealth. He also denied all allegations that Pontiff’s development is a front for sand mining.
ZBA decision
Plymouth Special Town Counsel Amy E. Kwesell informed the board that they have limited power and their only jurisdiction is over the zoning bylaw. Therefore, the board is not authorized to require an archaeological study of the site.
To appeal the building permit and the denial of the cease-and-desist order, all four board members had to vote in favor of the petitioners. David B. Peck, an alternate member of the zoning board of appeals, voted in favor of the petitioners. However, the remaining three members — Peter G. Conner, Michael J. Leary and Edward C. Conroy — voted in favor of Pontiff.
“We knew the outcome of that meeting. Three of four of those guys knew what they were going to vote before they even walked in the door,” Ferretti said in a follow-up interview with the Enterprise. “We knew we weren’t going to win it.”
On March 25, 24 residents delivered a notice of intent to sue letter to the select board, the Plymouth Foundation and Standish Investment Group. Going forward, Ferretti said, the residents will have to decide whether they wish to pursue the case in court. Although developments are popping up everywhere, the tribe will continue to fight for their land, their people and the environment, she said.
“We do this work not just for the tribe,” Ferretti said. “We do this work for every citizen in Plymouth and Bourne and anywhere around us because we’re all breathing the same air, we’re all eating the shellfish that come out of these waters, we’re all drinking the water.”
“Even though you guys push against us … we’re fighting for you as well. We’re fighting for all our relations, and that includes you guys. That includes your seven generations after. We’re not just doing this for our people, but also the four-legged, the winged, the aquifer, all the people that are dealing with the carcinogens,” Stasis told the zoning board. “We were put on this land to take care of it; it’s a gift. And what gift are we giving it by demolishing everything? We’re supposed to be the stewards of this land. I’d like to acknowledge again that the Wampanoag Nation is here to stand for our land and to fight for it. We will be the original stewards of this land until the end of time.”
