A new decision from the state’s Supreme Judicial Court has given a big boost to efforts by the states’ Division of Fisheries and Wildlife to protect endangered species within the Bay State – green-lighting the agency’s power to designate hundreds of thousands of acres of land as undevelopable without guaranteeing compensation for owners.
“We’re very pleased by the ruling of the court – it was a strong decision in favor of the [Act] and how we’re implementing the program,” said Mary Griffin, commissioner of the Department of Fish and Game. “We continue to want to improve the program, to work with people, be flexible and respond to concerns and help work with the development community and homeowners. We want to help them proceed with their projects – but in an environmentally responsible way.”
The decision revolves around the difference between two terms of bureaucratic art: “significant habitats” versus “priority habitats.” Back in 1990, the state passed the Massachusetts Endangered Species Act, a new law modeled on the federal legislation which helped save species like the bald eagle from extinction. The Massachusetts version allows the Department of Fisheries and Wildlife to designate certain areas of land as undevelopable to protect habitat for local fauna which are at serious risk of dying out in Massachusetts – such areas are known as “significant habitats.”
The act also provides some protections for private landowners whose property is designated as a significant habitat, however – the division is required to notify them of the proposed designation, hold public hearings on the matter, and if the land is certified, and file an affidavit at the Registry of Deeds so that any future purchasers are made aware of the restriction. Most importantly, the law requires the state to compensate the owner if land is designated as “significant habitat.”
The definition of “priority habitats” is not laid out in the original Massachusetts Endangered Species Act, but instead comes from regulations developed over the years by the division, as part of their broad mandate to protect endangered species under the law. Development in priority habitats is not absolutely prohibited, but it is subject to review by the division. If the division is concerned that the development could impact threatened species, they may call for a survey of the area or request that the owner come up with a conservation plan or another method of mitigating the project’s impact before work can be approved.
The division is required to notify the owner before it designates a parcel as “priority habitat” – instead, owners much search the division’s maps to see if they’re property’s listed when they file for a building permit. And there’s no guarantee of compensation for owners if their property is marked as a priority habitat and their planned project simply can’t be accommodated.
Since the act’s passage in 1990, approximately 400,000 acres of developable land in Massachusetts have been designated as “priority habitat.” Zero acres have been named “significant” habitat..
A single reported sighting of a protected box turtle in 1991 was enough to get two lots owned by William and Marlene Pepin in Hampden County designated as “priority habitat.” When the Pepins requested a permit to build a home on the 36 Acre property in 2007, the division at first turned down the petition, saying that the project could harm the turtle. After the Pepins submitted additional details about the project and a hearing was held, the division changed its decision, giving the project the go-ahead – if the Pepins agreed to place conservation restrictions on a portion of the land.
Instead, the Pepins sued, arguing that by allowing the “priority habit” designation to become the default way of designating protected land, the division’s bureaucrats have overstepped, effectively stripping property owners of rights and protections the legislature intended them to have.
Wildlife Impact
But the state’s Supreme Judicial Court disagreed, saying that using the “priority habitat” designation is acceptable because it allows the division to adhere to its broad mandate to protect endangered species without imposing the more draconian restrictions of the “significant habit” status on large chunks of land. It also made sure the division is notified of projects that could impact wildlife before they cause harm.
“While it is true that the priority habitat regulations do not offer landowners comparable protections to the significant habitat framework, neither are the burdens imposed on landowners by priority habitats comparable to those imposed by significant habitats … To be sure, the conditions that may be imposed as part of the review process can restrict land use in certain respects, or even require significant financial expenditure. But the priority habitat scheme is ultimately a flexible one,” the court wrote.
The decision is the first of its kind to rule on this aspect of the state’s endangered species law, and was hailed by supporters of strict conservation rules – large national nonprofits including the Audubon Society, the Defenders Of Wildlife and the Nature Conservancy all filed amicus briefs in support of the division.
But others feel that the outcome will be a blow to property owners.
“The court has opened the door here for administrative agency gerrymandering of the laws … they don’t have to [provide] any of the protections the law requires, and the court has let them get away with it,” said Paul Nicolai, president of Nicolai Law Group in Springfield and a personal friend of the Pepins. Nicolai filed an amicus brief in the case on the behalf of the nonprofit Economic Development Council of Western Massachusetts.
Email: csullivan@thewarrengroup.com
