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

by Pierce Atwood LLP

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.

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