May 20, 2013

Mess-achusetts: state agency attempts to circumvent limits on its power, ignores property rights

By Jonathan Wood Attorney

William and Marlene Pepin are defending their property rights from the Massachusetts’ Division of Fisheries and Wildlife.  The agency has regulated the Pepins’ property as habitat – prohibiting development unless approved by Division bureaucrats – even though their land could not be designated under the statute.  The Division is acting as if it can ignore the law anytime it believes that it knows better than the legislature how to protect species.

The Massachusetts’ Endangered Species Act (MESA) gives the Division considerable power.  It can police activities that harm protected species and regulate “significant habitat,” but each power is subject to statutory limits.  The rapacious bureaucrats were not satisfied.  They adopted regulations for a new category of habitat – “priority habitat” – which allow them to regulate private property free of the statute’s limitations.  You ignore these regulations at your peril; violators face fines of up to $10,000 and imprisonment.

At first blush, you might think that the “priority habitat” regulations relate to the “significant habitat” provisions in the statute.  They don’t.  Perhaps the legislature realized that regulating habitat risks infringing due process and constitutional property rights.  Because it allows the designation of habitat for only the most threatened species.  It also ensured that property owners would be given notice and an opportunity to be heard and seek compensation if their property was taken.  The Division excluded all of these property rights protections from its regulations.  Instead, the Division created a designation process that can happen largely in secret.  A property owner doesn’t find out that her land is being regulated until after it is too late.

PLF filed an amicus brief in support of the Pepins in Massachusetts’ highest court.  The brief argues that – in addition to being plainly inconsistent with MESA – the agency’s actions raise a host of other serious constitutional problems.  First, the regulations increase the risk that people are going to have their property taken.  The regulations’ permitting process imposes an expressly disproportionate mitigation requirement.  This unfair permit demand makes it very likely that property owners will have their constitutional rights violated under Nollan and Dolan.  As regular readers will recall, these cases prohibit government from making unrelated or disproportional demands on property owners in the permit process.  Second, the Massachusetts’ Constitution prohibits the unlimited delegation of power to administrative agencies.  The legislature created the Division and imposed specific limits on its power in MESA.  If the agency is free to ignore those limitations, the legislature has created an agency that simply has too much power.

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