Anyone who has ever tried to challenge a regulation in Massachusetts knows that it is an uphill battle. Just how tilted the playing field is was reinforced late last month in the decision in Pepin v. Division of Fisheries and Wildlife, rejecting a challenge to DFW’s “priority habitat” regulations. The case involves the Eastern Box Turtle, perhaps the most common of state-listed species.

As our Massachusetts readers know, MESA is similar to, but has some significant differences from, the federal ESA. Fundamentally, MESA prohibits taking “endangered” or “threatened” species or species “of special concern.” The statute provides for a rather cumbersome process by which DFW may designate “significant habitat" in order to protect listed species. Whether it is because the process is too cumbersome, or whether it is because the statute provides that property owners may petition for compensation resulting from a taking of their property following designation of significant habitat, DFW simply doesn’t utilize the process.

Instead, DFW has created regulations concerning “priority habitat,” a term not found in the statute. The priority habitat regulations provide somewhat more flexibility and, importantly, do not have a procedure for compensating landowners for regulatory takings. After part of his property was designated as priority habitat, Pepin sued DFW, claiming that the priority habitat regulations were beyond DFW’s authority under MESA.

Judge Sweeney of the Land Court was having none of it. First, she noted that MESA gives DFW residual authority to promulgate “any regulations necessary to implement the provisions of this chapter.” Moreover, the statute does not preclude DFW from establishing a second category of protected habitat. With that as background, Justice Sweeney rehearsed the litany of cases with which Massachusetts lawyers are all too familiar.

"The party challenging the validity of an agency’s regulations bears a formidable burden. This Court gives substantial deference to the agency’s expertise and statutory interpretation, applies all presumptions in favor of the validity of administration action, and declares a regulation void only if its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate.

Given this case law, it is not surprising that Judge Sweeney concluded that MESA does not unambiguously prohibit the priority habitat regulations and that the regulations are consistent with legislative intent.

Of course, the priority habitat regulations do effectively make a nullity of the MESA provisions regarding significant habitat, but what’s a little nullity among friends. Heads the agency wins; tails the regulated industry loses. What’s new?