June 28, 2013

Setting the record straight on Pepin

By Jonathan Wood Attorney

An editorial in the Worcester Telegram & Gazette, discussing Pepin v. Division of Fisheries and Wildlife, accuses shadowy “[d]evelopment forces” of attempting to weaken Massachusetts Endangered Species Act (MESA) and prevent the state from protecting endangered species.

[T]he court’s decision will affect the degree to which we can protect our local endangered species. … [T]he privilege to buy or own private property does not give anyone the right to destroy critical habitat or jeopardize endangered wildlife, which are treasures belonging to all of us. Each owner’s stewardship of wild land is temporary; but our development decisions can hurt forever.

This argument, though strong on rhetoric, fundamentally misunderstands what is at issue in the case. As explained in an earlier post and in PLF’s amicus brief, the Pepin case challenges an agency’s decision to ignore MESA. The legislature struck a balance between conservation and constitutional rights to property and due process, by providing for the protection of species and certain types of habitat, while ensuring that property owners would be given fair notice and an opportunity to participate in the process.

But the Division purports to know better, that the protection of species is too important to let statutory language or constitutional rights get in its way. It adopted regulations expanding its power to designate habitat—allowing it to veto citizen’s naive attempts to exercise their  property rights, extract incredibly (and probably unconstitutional demands) in exchange for permits, and cutting property owners out of the regulatory process entirely.

Take the Pepins as an example. Their property cannot be designated as habitat under the statute—the department designated it as habitat because someone reported seeing an Eastern Box Turtle (a species not even eligible for habitat designation under the statute) near the property approximately 22 years ago. The regulations would potentially subject them to expressly disproportionate permit conditions (for every acre that the Pepins want to develop, they would have to dedicate up to 3 acres for conservation). Such disproportionate demands are plainly unconstitutional under Nollan and Dolan. And to top it all off, these burdens are imposed without warning, because the regulations omit the statute’s requirements that property owners be informed before their property is designated as habitat.

Contrary to the editorialist’s suggestion, Pepin doesn’t challenge the state’s authority to protect species or habitat. Massachusetts has exercised that authority by adopting MESA. What Pepin challenges is a rogue agency that has decided that it doesn’t have to follow the statute. Setting aside whether our constitutionally protected property rights are mere “privilege[s] to buy or own private property,” we all certainly have a right not to be subject to overweening bureaucrats who would place themselves above the law.

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