Pepin v. Div. of Fisheries & Wildlife

• Decision Date: 18 February 2014
• Docket Number: SJC–11332.
• Citation: 467 Mass. 210,4 N.E.3d 875
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William PEPIN & another v. DIVISION OF FISHERIES AND WILDLIFE.

467 Mass. 210

4 N.E.3d 875

William PEPIN & another ¹

v.DIVISION OF FISHERIES AND WILDLIFE.

SJC–11332.

Supreme Judicial Court of Massachusetts, Hampden.

Submitted Oct. 8, 2013.

Decided Feb. 18, 2014.

William J. Murray for the plaintiffs.

Matthew C. Ireland, Assistant Attorney General, for the defendant.

The following submitted briefs for amici curiae: Damien M. Schiff & Jonathan Wood, of California, & Donald R. Pinto, Jr., Boston, for Pacific Legal Foundation.

Jason C. Rylander & Michael P. Senatore, of the District of Columbia, for Defenders of Wildlife & another.

Jeffrey B. Augello & David S. Jaffe, of the District of Columbia, for National Association of Home Builders.

Douglas H. Hallward–Driemeier, Jacob Scott, Jacob M. Heller, & Kevin P. Budris for Massachusetts Audubon Society & others.

Paul Peter Nicolai, Springfield, for Economic Development Council of Western Massachusetts & another.

Benjamin Fierro, III, Boston, for Home Builders Association of Massachusetts, Inc.

Ann M. Risso, Boston, for Nature Conservancy.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

William and Marlene Pepin (petitioners) own approximately thirty-six acres of land in Hampden.² Their ability to construct a home on this land is restricted by the property's delineation as a “priority habitat” for the eastern box turtle, a “species of special concern” under 321 Code Mass. Regs. § 10.90 (2012). The property has been so designated by the division of fisheries and wildlife (division), a unit of the Department of Fish and Game, pursuant to the implementing regulations of the Massachusetts Endangered Species Act, G.L. c. 131A, §§ 1– 7 (MESA).

MESA authorizes the division to designate certain areas as “significant habitats” of endangered or threatened species. G.L. c. 131A, § 4. Development of land within significant habitats is sharply restricted. See G.L. c. 131A, §§ 2–4. The division also has promulgated regulations establishing a second type of protected habitat, denoted “priority habitat,” to protect species that are either endangered or threatened, or that fall into a third category of “species of special concern.” 321 Code Mass. Regs. §§ 10.11–10.26 (2012). The petitioners challenge the validity of the priority habitat regulations insofar as they allow the division to designate priority habitat without affording landowners the procedural protections statutorily due to those owning property within significant habitats. Because we conclude that the priority habitat regulations are a reasonable implementation of the enabling statute, we affirm their validity.

We are asked also to decide whether, in adjudicating the petitioners' challenge to the application of the priority habitat mapping guidelines to their property, a Department of Fish and Game magistrate properly directed a decision in favor of the division without holding a hearing. Because the petitioners did not meet their burden of demonstrating that the division improperly delineated their property as priority habitat, we conclude that granting such a directed decision was proper.

1. Factual background and prior proceedings. We summarize the following undisputed facts. The petitioners' property in Hampden County consists of two building lots, totaling approximately thirty-six acres in area. They intend to build a home on the larger lot. However, in 2006, a year after the division adopted revised MESA regulations, the area encompassing the petitioners' property was delineated a priority habitat for the eastern box turtle, a species of special concern. See 321 Code Mass. Regs. § 10.90. In accordance with the division's guidelines, the delineation was based on a private citizen's sighting, in 1991, of a female box turtle of reproductive age, on or near the parcel in question. The turtle was identified by a professional herpetologist at the Audubon Society Laughing Brook Sanctuary.

As a result of the priority habitat designation, the petitioners face certain limitations before they can commence construction. Pursuant to 321 Code Mass. Regs. § 10.18 (2010), plans for construction projects located within priority habitats must be submitted to the division for review before physical work can begin. Accordingly, in January, 2007, the petitioners submitted to the division a project review checklist and supporting materials in connection with their proposal to construct a single-family home on their property. The division determined that the project, as proposed, had the potential to result in a “take” of a State-listed species, the eastern box turtle, meaning that it might harm the turtle or disrupt its habitat. See G.L. c. 131A, § 1. After the petitioners submitted revised materials, the division determined that the project would not result in a take, provided that a deed restriction and conservation easement were recorded in the Hampden County registry of deeds prior to commencement of work on the project.

In September, 2008, the petitioners requested reconsideration of the delineation of their property as priority habitat. See 321 Code Mass. Regs. § 10.12(8) (2010). As part of the requested review, a turtle conservation biologist and regulatory review manager from the division visited the petitioners' property with the petitioners' attorney to conduct a habitat evaluation. This site visit indicated that the location of the proposed project was within the priority habitat area for the eastern box turtle, and that the property, with its upland deciduous forestry, was indeed “ideal habitat” for the turtle. Determining that the habitat mapping procedures for the eastern box turtle were implemented properly in accordance with the regulations, and that the location of the proposed project was within the priority habitat for the eastern box turtle, the division ultimately denied the request.

The petitioners requested an adjudicatory hearing pursuant to 321 Code Mass. Regs. § 10.25(1) (2010), which provides for informal hearings in accordance with the procedures set forth in 801 Code Mass. Regs. §§ 1.02, 1.03 (1998). The parties proceeded with such an informal hearing and agreed to an expedited hearing schedule. The petitioners raised two issues. First, the petitioners challenged the validity of the division's method for delineating priority habitats, which does not afford landowners the same procedural protections due under MESA to those owning property within significant habitats. Second, the petitioners argued that the criteria set forth in 321 Code Mass. Regs. § 10.12, regarding delineation of priority habitat, were not applied properly when the division reconsidered and confirmed the delineation of the petitioners' property as priority habitat for the eastern box turtle. As the first claim entailed a direct challenge to the validity of the regulation, the magistrate granted the division's motion to dismiss that claim without prejudice to the petitioners' right to seek judicial review in the Superior Court. Cf. Salisbury Nursing & Rehabilitation Ctr., Inc. v.Division of Admin. Law Appeals, 448 Mass. 365, 374–375, 861 N.E.2d 429 (2007) (substantive validity of agency regulation may not be challenged before division of administrative law appeals).

After the submission of written testimony, the division moved for a directed decision in its favor on the second claim, arguing that, “[g]iven the array of scientific and technical criteria that the [d]ivision considers when determining whether a geographic location is [p]riority [h]abitat for a [S]tate-listed species, ... the unsupported opinions of an unqualified lay person on such matters are wholly insufficient” to carry the petitioners' burden. The magistrate granted the division's motion, thus obviating the need for an evidentiary hearing and the attendant cross-examination of witnesses. The magistrate concluded that, “as a matter of law and fact, [p]etitioners ... presented no credible evidence to support their final claim in this appeal.” The division adopted the decision of the magistrate.

The petitioners sought review in the Superior Court, pursuant to G.L. c. 30A, § 14, where they also pursued their claim for declaratory relief regarding the validity of the priority habitat regulations. A Superior Court judge denied the petitioners' motion for judgment on the pleadings and affirmed the division's decision adopting the magistrate's directed decision. A different Superior Court judge entered summary judgment in favor of the division on the petitioners' claim for declaratory relief. That judge reasoned that the priority habitat regulations “are consistent with MESA's prohibition on the ‘take’ of any listed species and MESA's broad purpose of protecting and conserving wildlife and wildlife habitat” and, thus, that the regulations do not exceed the scope of the division's authority as granted by MESA. The petitioners appealed, and we transferred the case to this court on our own initiative.

2. Enactment of MESA. The Legislature enacted MESA, a statute that we have not previously had occasion to construe, in 1990, to conserve plant and animal species within the Commonwealth and to protect their habitats. 1990 Senate Doc. No. 1768. At the time of MESA's enactment, the Commonwealth had lost seventy-two species over the prior 150 years. Diane Dumanoski, Sweeping Mass. Law on Endangered Species Is Signed, Boston Globe, Dec. 28, 1990, at 1. Over thirty other States already had enacted species-conservation laws, id., and the Federal Endangered Species Act, 16 U.S.C. §§ 1531–1544 (Federal Act), had been in existence for seventeen years. The Federal Act contemplates cooperation “to the maximum extent practicable with the States,” 16 U.S.C. § 1535(a), but the Federal government may enter into a cooperative agreement with a State for the purpose of species conservation only if “the State agency has established acceptable conservation programs, consistent with the purposes and policies of [the Federal...