Massachusetts Supreme Court Endorses Broad Regulatory Authority Under The Massachusetts Endangered Species Act

by Pierce Atwood LLP
Contact

Boston, MA

On February 18, 2014, the Massachusetts Supreme Judicial Court issued a decision in Pepin v. Division of Fisheries and Wildlife that upheld the Massachusetts Division of Fisheries and Wildlife’s ( “DFW’s”) regulatory scheme involving priority habitat designation.  In the process, the Court rejected the petitioning landowners’ arguments that their due process rights had been violated and that DFW had exceeded its authority under the Massachusetts Endangered Species Act (MESA) in enacting certain aspects of the regulatory scheme.

The landowners in the case sought to construct a home on one of two lots in Hampden County. Their plans were complicated by the fact that DFW had designated the area encompassing their property as a priority habitat for the eastern box turtle, a species of special concern under MESA regulations.  This designation was based on a private citizen’s sighting, in 1991, of a female box turtle of reproductive age, on or near the designated area.

Because their property was within a priority habitat, the landowners were required to submit to DFW a project review checklist and supporting materials in connection with their proposal to construct a single family home on their property.  DFW rejected the landowners’ original proposal, finding that the proposed construction had the potential to result in a take of the eastern box turtle.  After the landowners submitted revised materials, DFW determined that the project would not result in a take, but required as a condition of approval that the landowners record a deed restriction and a conservation easement. 

In response, the landowners requested a reconsideration of the delineation of their property as a priority habitat.  DFW denied this request after a turtle conservation biologist and regulatory review manager conducted a site visit and determined that the property was indeed ideal habitat for the turtle.  The landowners then requested an adjudicatory hearing in which they raised two issues.  First, the landowners challenged the validity of DFW’s method for delineating priority habitats, arguing that the method did not afford landowners sufficient procedural protections.  Second, the landowners argued that the criteria for designating priority habitat were not applied properly.

After their arguments were rejected by DFW and the Superior Court, the landowners appealed to the Massachusetts Supreme Judicial Court.  The landowners’ due process argument focused on the difference between the procedural protections afforded to landowners during the processes for designating significant habitats and priority habitats.  Under the former, landowners are entitled to a public hearing, whereas under the latter no public hearing is required.  The landowners argued that the priority habitat designations, which are not explicitly authorized by MESA, should afford the same procedural protections as significant habitat designations.  According to the landowners, MESA’s explicit provision of a public hearing for significant habitat designations evinced a legislative intent to require a public hearing for any other designation that DFW might create through its regulations.

The Court ultimately rejected the landowners’ due process argument, stating that MESA delegates to DFW “board authority to ‘adopt any regulations necessary to implement the provisions of [MESA].’”  In addition, the Court held that DFW was justified in not providing a public hearing for priority habitat designations, because the burdens imposed by such a designation were less onerous than those imposed by significant habitat designations.  The Court noted that “whereas the Legislature established a significant habitat scheme that both stringently restricts property development and provides landowners with robust procedural protections before doing so, the priority habitat regulations neither constitute a comparable bar against development, nor require comparable procedural mechanisms.”

After dispensing with the landowners’ due process challenge, the Court rejected the landowners’ argument that the criteria for designating priority habitat were not applied correctly, finding that the landowners’ testimony, the only evidence they presented, failed to “put forward specific instances of the Division’s misapplication of its regulatory criteria, or otherwise controvert the testimony of the Divisions’ witnesses.”

In short, the Pepin decision suggests that the courts in Massachusetts will continue to zealously protect DFW’s authority to regulate endangered species and their habitat, even at the expense of landowner rights.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pierce Atwood LLP | Attorney Advertising

Written by:

Pierce Atwood LLP
Contact
more
less

Pierce Atwood LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.