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Pepin v. Division of Fisheries & Wildlife

ELR Citation: 44 ELR 20035
Nos. SJC-11332, (Mass., 02/18/2014)

Massachusetts' highest court upheld the state's "priority habitat" regulations insofar as they allow the Massachusetts Division of Fisheries and Wildlife to designate priority habitat without affording landowners the procedural protections statutorily due to those owning property within "significant habitat" areas under the Massachusetts Endangered Species Act (MESA). Priority habitat designations implement MESA's take prohibition by mapping known areas used as habitat by protected species so as to "screen [ ] projects or activities that may result in the take of state-listed species." By contrast, significant habitat designations are designed "to carve out in advance exceptional areas containing habitat with features worthy of a heightened level of protection" for only the most at-risk species. Because work or development in significant habitat is severely restricted, the statute requires formal rulemaking prior to designation; the much less restrictive priority habitat regulations do not. The court ruled that the priority habitat regulations are a reasonable implementation of the enabling statute and therefore affirmed their validity. The regulations serve to implement the existing statutory provision prohibiting takes of state-listed species, which is critical to the operation of MESA as a whole. That MESA creates a scheme for designating and regulating significant habitats of endangered and threatened species does not preclude the state from enacting regulations to address the more general problem of preventing takes of all state-listed species in a manner that is more tailored to individual projects and habitats.