Trammeling Turtle Takes: A Taking?

This post is about real estate law. But, lest my alliterative headline cause confusion, I begin with three brief definitions. First, in the language of the law the word “taking” refers to the government acquiring somebody’s property. Second, the term “a take,” as it appears in endangered-species statutes, refers to somebody doing something that could cause harm to an endangered creature or its habitat. As for the third term, “trammel,” it was the only synonym I could find for “stop” that begins with the letter T. Now to consider whether the trammeling of turtle takes could constitute a taking.

turtle dollar sign
Who pays? Public purse or private landowner?

In 1991 a walker spotted an eastern box turtle “on or near” property that now belongs to William and Marlene Pepin in the town of Hampden in Western Massachusetts. Some years later, the Pepins decided to build a single-family home on their land but the Division of Fisheries & Wildlife imposed restrictions that would significantly increase the cost of the project by requiring them to set aside some of their land and pay money to the state, as this MassLive article points out. Why? Because the Division — on the basis of that 1991 sighting — had designated the Pepins’ land as a “priority habitat” for the eastern box turtle. Disrupting the habitat could constitute a “take” of the turtle within the meaning of the  Massachusetts Endangered Species Act (MESA). This meant that the Pepins, not the public purse, would bear the cost of preserving the habitat that supposedly once hosted an eastern box turtle.

Readers inclined to look for the term “priority habitat” in the statute should not bother. Although the Legislature created a framework for designating “significant habitats,” replete with notice, public hearing, judicial review of the agency decision, and recordation in the registry of deeds, it did not provide for “priority habitats.” That is a category the Division came up with all by itself. And shunning the procedural safeguards the Legislature built around the “significant habitat” designation, when it invented the “priority habitat” designation the Division decided to give landowners no similar protections.

Can an executive agency do this? The Supreme Judicial Court said yes, holding that by way of MESA the Legislature “delegated to the division broad authority” to implement the statute’s provision. The Court drew attention to the Legislature’s grant of authority to adopt “any regulations necessary,” words that appear in Section 4 of the statute, whose plain and ordinary meaning is clear. But what the Court ignored was Article 30 the Constitution of the Commonwealth of Massachusetts.

As I mentioned in a previous post, the Massachusetts Constitution prohibits the Legislature from delegating its lawmaking power, i.e. the power to make fundamental policy decisions, to executive agencies. This doctrine of non-delegation came up in the Pepin case. Attorney Donald R. Pinto, Jr., of the Boston law firm Rackeman, Sawyer & Brewster co-authored an amicus brief for the Pacific Legal Foundation, which argued that the Division’s decision “to strike this particular balance between species protection and economic development is the fundamental policy decision that must be made by the Legislature.” Although the amicus brief raised this important issue, the SJC did not address it.

As if flouting Article 30 were not enough, there is another issue here. When the government deprives landowners of their property, we call it a taking. When government does the same thing via regulations we call it a regulatory taking. How much value must a regulation destroy before we can call it a regulatory taking? In this case, the state government reduced the value of a parcel of real estate, and also required the owner to make a payment into a public fund.

Together, the reduction in value combined with the demand for money might amount to a taking. If the Pepins can stomach even more litigation, perhaps the Supreme Court of the United States will have an opportunity to let us know one way or the other.

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