Christopher Vaccaro
The Massachusetts Endangered Species Act (MESA) was enacted in 1990 to protect at-risk wildlife. Like many statutes, MESA authorizes an administrative agency (the Massachusetts Division of Fisheries & Wildlife) to issue regulations furthering the statute’s goals. Questions often arise about whether administrative agencies overstep their delegated authority. Pepin v. Division of Fisheries & Wildlife, decided by the Massachusetts Supreme Judicial Court last year, shows how courts handle challenges to agencies’ authority.
MESA identifies three categories of wildlife species that warrant protection: “endangered” species that face extinction; “threatened” species that are likely to become endangered; and “species of special concern” that are likely to become threatened. MESA instructs the division to designate “significant habitats” for endangered and threatened species (but not for species of special concern), where development is sharply restricted. The statute requires the division to follow specific procedures when designating property as significant habitat.
Before designating significant habitats, the division must notify landowners and hold a public hearing, while evaluating threats to endangered or threatened species, likely benefits to the species from designation, and current and potential uses of the property. Significant habitats must be delineated by maps and metes and bounds descriptions. Upon designating a significant habitat, the division must record with the local registry of deeds a document identifying the location of the habitat and a list of assessed owners of affected properties. Aggrieved landowners may appeal to the Secretary of the Office of Environmental Affairs, and file suit to determine whether the designation is a taking of their property requiring compensation from the commonwealth.
MESA’s procedure for designating significant habitat strives to maintain due process rights for affected landowners. Since MESA’s enactment in 1990, the number of significant habitats designated by the division is zero.
Instead of following the statutory procedure, the division invoked its regulatory authority to invent a designation known as “priority habitat” not mentioned in the statute. The division’s regulations allow it to establish priority habitats without the notice, public hearing, and appellate rights applicable to significant habitat. The division uses priority habitats to protect “species of special concern” in addition to endangered and threatened species.
Development within priority habitats must satisfy conditions imposed by the division. Some might argue that the division’s regulatory scheme evades MESA’s due process requirements for significant habitat designations. This brings us to William and Marlene Pepin’s case.
The Pepins hoped to build a retirement home on 36 woodland acres in western Massachusetts in 2006. However, a private citizen had observed an eastern box turtle (a species of special concern) at or near their property in 1991. Based on this sighting alone, the division determined that the Pepins’ home “might harm the turtle or disrupt its habitat.” The division designated the Pepins’ land as priority habitat and imposed conditions on development, which included a conservation restriction. The Pepins objected and filed an administrative appeal within the division, where they naturally lost after “a turtle conservation biologist and a regulatory review manager” from the division inspected their property and declared it “ideal habitat” for the turtle. The Pepins appealed to the Superior Court, challenging the division’s priority habitat regulations, and lost again. The Supreme Judicial Court heard their subsequent appeal.
The SJC unanimously ruled that MESA’s statutory framework for designating significant habitat was not the only means by which the division could carry out MESA’s objectives. The SJC noted that courts traditionally defer to administrative agencies that adopt regulations under statutory authority. According to the SJC, the division’s regulations for designating priority habitats and imposing restrictions on development were proper, even though such designations limited landowners’ development rights without the due process benefits associated with significant habitat designations. The SJC upheld the division and its regulations.
Perhaps someday the Pepins and the turtle can share 36 woodland acres in harmony. In the meantime, elected legislators might want to reconsider how they delegate regulatory authority to unelected bureaucrats. n
Christopher R. Vaccaro is a partner at Dalton & Finegold LLP in Andover. His email address is cvaccaro@dfllp.com.
