COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT CASE NO. SJC WILLIAM PEPIN & ANOTHER, Plaintiff/Appellants,

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1 COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT CASE NO. SJC WILLIAM PEPIN & ANOTHER, Plaintiff/Appellants, v. DIVISION OF FISHERIES AND WILDLIFE, Defendant/Appellees. ON APPEAL FROM A JUDGMENT OF THE HAMPDEN SUPERIOR COURT CIVIL ACTION NO. HDCV MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF THE NATIONAL ASSOCIATION OF HOME BUILDERS IN SUPPORT OF PLAINTIFF/APPELLANTS Jeffrey B. Augello D.C. Bar No *Motion for Admission Pro Hac Vice Pending David S. Jaffe BBO# National Association of Home Builders th Street, N.W. Washington, D.C Tel: Fax:

2 1 Pursuant to Rule 17 of the Massachusetts Rule of Appellate Procedure, the National Association of Home Builders ( NAHB ) hereby requests leave to file the accompanying amicus curiae brief in support of Plaintiff-Appellants in the above-captioned appeal. 1. NAHB is a non-profit corporation incorporated in the state of Nevada with headquarters in Washington, D.C. Founded in 1942, NAHB is made up of more than 140,000 builder and associate members organized into approximately 800 affiliated state and local associations in all 50 states, the District of Columbia and Puerto Rico. Its members include individual firms that construct singlefamily and multi-family homes, apartments, condominiums and commercial projects, as well as remodelers and land developers. The overwhelming majority of NAHB s members are small businesses that build approximately 80% of the homes constructed each year in the United States. 2. NAHB represents its members through its advocacy function in connection with legal, regulatory and legislative matters that may affect the use and development of their land. It is germane to NAHB s organizational purpose to ensure that its

3 2 members can use their property to the fullest extent allowed by law so that they may build and supply housing for all people throughout the United States regardless of income level, race or nationality. 3. The federal Endangered Species Act ( ESA ) and various state laws protecting endangered species are critically important to NAHB and its members due to their impact on land development and use. 4. NAHB expends significant resources to ensure that its members understand, and that government agencies that regulate those members faithfully execute the goals and requirements of federal and state endangered species laws. These efforts have included testimony before Congress, the preparation and submission of studies and comments on proposed regulatory actions by natural resource agencies and litigation in the Federal and state courts challenging arbitrary and unlawful interpretations and application of endangered species laws and their implementing regulations. See, e.g., National Ass n of Home Builders v. Defenders of Wildlife, 551 U.S. 664 (2007); National Ass n of Home Builders v. Norton, 340 F.3d 835 (9th Cir. 2003); National Ass n

4 3 of Home Builders v. Salazar, 827 F.Supp.2d 1 (D.D.C. 2011). 5. NAHB frequently submits comments and information on behalf of its members to state and federal environmental agencies regarding species listing determinations and critical habitat designations. For example, NAHB recently submitted comments on the U.S. Fish and Wildlife Service s 90- day finding on a petition to list the eastern population of the gopher tortoise, the Service s designation of critical habitat for the polar bear and the Service s proposal to revise critical habitat for the arroyo toad. 6. NAHB request the opportunity to present an amicus curiae brief in this case because NAHB is keenly interested in protecting the property rights of its members by encouraging agency transparency and public participation in the rulemaking process. As a national trade association with significant litigation experience supporting a balanced approach to environmental protection and land use rights, NAHB can bring to light matters which will assist the Court in reaching a just solution to the issues presented.

5 4 7. Motions for the admission of NAHB attorney Jeffrey B. Augello pro hac vice, affidavits supporting those motions and NAHB s proposed amicus curiae brief accompany this motion. WHEREFORE, NAHB respectfully requests that its motion for leave to file an amicus curiae brief be granted. Respectfully submitted, DATED: August 20, 2013 Jeffrey B. Augello D.C. Bar No *Motion for Admission Pro Hac Vice Pending David S. Jaffe BBO# National Association of Home Builders th Street, N.W. Washington, D.C Tel: Fax: Attorneys for Amicus Curiae National Association of Home Builders

6 COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT CASE NO. SJC WILLIAM PEPIN & ANOTHER, Plaintiff/Appellants, v. DIVISION OF FISHERIES AND WILDLIFE, Defendant/Appellees. ON APPEAL FROM A JUDGMENT OF THE HAMPDEN SUPERIOR COURT CIVIL ACTION NO. HDCV AMICUS CURIAE BRIEF OF THE NATIONAL ASSOCIATION OF HOME BUILDERS IN SUPPORT OF PLAINTIFF/APPELLANTS Jeffrey B. Augello D.C. Bar No *Motion for Admission Pro Hac Vice Pending David S. Jaffe BBO# National Association of Home Builders th Street, N.W. Washington, D.C Tel: Fax: Attorneys for Amicus Curiae National Association of Home Builders Dated: August 20, 2013

7 i TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES...i INTEREST OF AMICI...1 INTRODUCTION...2 ARGUMENT...5 I. THE DELINEATION OF PRIORITY HABITAT FOR THE EASTERN BOX TURTLE ON PEPIN S PROPERTY IS PROCEDURALLY INVALID...5 A. Priority Habitat Delineations Are Regulations...5 B. The Priority Habitat Delineation Violated the Fundamental Principles of Public Notice and Comment As Required by the Massachusetts Administrative Procedure Act...10 II. THE DELINEATION OF PRIORITY HABITAT FOR THE EASTERN BOX TURTLE ON PEPIN S PROPERTY IS ARBITRARY AND CAPRICIOUS...16 A. The Record Does Not Contain Substantial Evidence to Support the Division s Priority Habitat Delineation...16 B. The Delineation Does Not Satisfy the Best Scientific Evidence Available Standard...20 C. This Court Should Take a Hard Look at the Scientific Evidence the Division used to Support the Priority Habitat Delineation...27 CONCLUSION...30

8 ii TABLE OF AUTHORITIES Page(s) Cases Arthur D. Little, Inc. v. Comm r of Health & Hosps. of Cambridge, 395 Mass. 535 (1985)...5-6, 30 Bennett v. Spear, 520 U.S. 154 (1997)...20, 23 Blue Water Fishermen s Ass n v. Nat l Marine Fisheries Serv., 226 F.Supp. 2d 330 (D.Mass. 2002)...23, 24 Borden, Inc. v. Comm r of Pub. Health, 388 Mass. 707 (1983)...6 Bldg. Indus. Ass n of Superior California v. Norton, 247 F.3d 1241 (D.C. Cir 2001)...22 Capolupo v. Dep t of Envtl. Prot., 17 Mass L. Rptr. 190 (Mass. Super. 2003) Ctr. for Biological Diversity v. Lohn, 296 F.Supp.2d 1223 (W.D. Wa. Dec. 17, 2003)..23 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)...28 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)...5, 29 City of Las Vegas v. Lujan, 891 F.2d 927 (D.C. Cir. 1989)...25 Cobble v. Comm r of the Dep t of Soc. Serv., 430 Mass. 385 (1999)...17 Consol. Edison Co. v. Nat l Labor Relations Bd., 305 U.S. 197 (1938) Construction Indus. of Mass. v. Comm r of Labor and Indus., 406 Mass. 162 (1989)...9

9 iii TABLE OF AUTHORITIES (cont.) Page(s) DaLomba s Case, 352 Mass. 598 (1967)...9 Defenders of Wildlife v. Babbitt, 958 F.Supp. 670 (D.D.C. 1997)...22 Finkelstein v. Bd. of Registration in Optometry, 370 Mass. 476 (1976)...4 Kabatchnick v. Hanover-Elm Bldg. Corp., et al., 331 Mass. 366 (1954)...17 Kilburn v. Nolan, No , 2006 WL (Mass. Super )...6 La Casa Del Convaleciente, et al. v. Sullivan, 965 F.2d 1175 (5th Cir. 1992)...9 Mass. General Hosp. v. Rate Setting Comm n, 371 Mass. 705 (1977)...6, 8, 9, 10 McGuiness v. Dept of Correction, 465 Mass. 660 (2013)...4 Merisme v. Bd. of Appeals on Motor Vehicle Liab. Policies and Bonds, 27 Mass.App.Ct. 470 (1989)...20 Moran v. School Comm. of Littleton, 317 Mass. 591 (1945)...20 Motor Vehicle Mfrs. Ass n of U.S. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 (1983)...5, 26 Nat l Labor Relations Bd. v. GranCare, Inc., 170 F.3d 662 (7th Cir. 1999)...28

10 iv TABLE OF AUTHORITIES (cont.) Page(s) Nat l Wildlife Fed n v. Babbit, 128 F. Supp 2d 1247 (E.D. Cal. 2000)...22 New Mexico Cattle Growers Ass n v. U.S. Fish and Wildlife Serv., 248 F.3d Otay Mesa Property L.P. v. U.S. Dep t of Interior, 714 F.Supp.2d 73 (D.D.C. 2010)...16 Purity Supreme, Inc. v. Attorney General, 380 Mass. 762 (1980)...6 Seagram Distillers Co. v. Alcoholic Beverages Control Comm n, 401 Mass. 713 (1988)...17 Sinclair v. Director of the Div. of Employment Sec y et.al., 331 Mass. 101 (1954)...20 Southwest Ctr. for Biological Diversity, et al. v. Babbitt, 215 F.3d 58 (D.C. Cir. 2000)...23 Southwest Ctr. for Biological Diversity v. Babbit, 926 F. Supp. 920 (D. Ariz. 1996)...25 Southwest Ctr. for Biological Diversity v. Norton, 2002 WL (D.D.C. July 29, 2002) Utility Contractors Ass n of New England, Inc. v. Comm rs of the Mass. Dep t of Public Works, 5 Mass. L. Rptr. 17 (Mass. Super. Ct. March 12, 1996) WRT Mgmt. Corp. v. Div. of Fisheries & Wildlife, 14 Mass. L. Rptr. 609 (Mass. Supr. 2002)...11 Constitutional and Statutory Provisions 321 Mass. Code Regs , 10, 25-26

11 v TABLE OF AUTHORITIES (cont.) Page(s) 321 Mass. Code Regs , Mass. Code Regs (current through Dec. 24, 2010, Register #1172)...passim 321 Mass. Code Regs (8) (current through Jan. 26, 2007, Register #1070) Mass. Code Regs (1) Mass. Code Regs (2) Mass. Code Regs (3) Mass. Code Regs (3) Mass. Code Regs (1)-(4) Mass. Code Regs. 18(3)...14 Mass. Gen. Laws c. 30A, , Mass. Gen. Laws c. 30A 1(2)...11 Mass. Gen. Laws c. 30A Mass. Gen. Laws c. 30A Mass. Gen. Laws 30A 14(7)...4 Mass. Gen. Laws 131A Mass. Gen. Laws c. 131A 4...2, 7, 8, U.S.C. 1371(a)(3)(A) U.S.C. 1533(b)(2) U.S.C. 1851(a)(2) C.F.R

12 vi TABLE OF AUTHORITIES (cont.) Page(s) 50 C.F.R (a) C.F.R C.F.R (b)...22 Other Julie Lurman Joly, Joel Reynolds & Martin Robards, Recognizing When the Best Scientific Data Available Isn t, 29 Stan. Envtl. L.J. 247 (May 2010)...21 Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking, 75 Tex. L. Rev. 483 (1977) Recommended Final Decision, In the Matter of: South Rd, Lots 11 & 12, Hampden, MA, NHESP File No , No DH (Mass. Exec. Office of Energy & Envtl. Affairs, Div. of Fisheries & Wildlife, July 10, 2009)...19, 27 Brief of Defendant-Appellee Div. of Fisheries & Wildlife, William Pepin & Marlene Pepin v. Div. of Fisheries & Wildlife, No P-1045 (Mass. App. Ct. Oct. 12, 2012)...21, 22 Brief of the Plaintiffs-Appellants, Pepin v. Div. of Fisheries & Wildlife, No 2012-P-1045 (Mass. App. Aug., 2012)...8 Memorandum of Decision and Order on Cross-Motions for Summary Judgment, William Pepin v. Division of Fisheries and Wildlife, No. HDCV A (Mass. Super. Ct. March 22, 2011)

13 vii TABLE OF AUTHORITIES (cont.) Page(s) Mesa Project Review Process/Filing Checklist natural-heritage/regulatory-review/massendangered-species-act-mesa/mesa-feeschedule.html...13 Mesa Fee Schedule, /docs/dfg/nhesp/regulatory-review/mesa-projreview-check-elect.pdf...13

14 1 INTEREST OF AMICI The National Association of Home Builders ( NAHB ) is a Washington, D.C.-based trade association that represents more than 140,000 members, including individuals and firms engaged in land development, home building, home remodeling and commercial construction projects. Through its advocacy function, NAHB frequently participates as a party litigant and amicus curiae to safeguard the rights and interests of its members. The federal Endangered Species Act and various state laws protecting endangered species are critically important to NAHB and its members due to the onerous demands they often impose on land use and development. In particular, NAHB seeks to ensure that endangered species laws not be misinterpreted and applied in a manner that abuses the protected private property rights of its members, or fails to balance environmental interests with human needs. NAHB is therefore interested in this case, which concerns, among other issues, whether the Director of the Massachusetts Division of Fisheries and Wildlife lawfully delineated

15 2 William and Marlene Pepins property as Priority Habitat for the Eastern Box Turtle. INTRODUCTION The plain language of the Massachusetts Endangered Species Act ( MESA ) clearly and repeatedly expresses the legislative intent that habitat designations are to operate as binding regulations. Section 4 of the MESA authorizes the Director of the Massachusetts Division of Fisheries and Wildlife ( Division ) to designate Significant Habitat for state endangered, threatened and special concern species. Doing so shall constitute the adoption of regulations subject to the [notice and hearing] provisions of chapter thirty A of the Massachusetts Administrative Procedure Act ( MAPA ). Mass. Gen. Laws c. 131A 4. In the twenty three year history of the MESA the Division has never made a Significant Habitat designation. It has instead relied on its 4 authority to adopt any regulations necessary to advance the goals of the Act and created the Priority Habitat category of protection. Id. Although Priority Habitat delineations impose substantial regulatory burdens

16 3 on private landowners, including the threat of penalties and imprisonment, the Division delineates such areas in a less than transparent fashion. The MAPA prescribes minimum procedures that all agencies must follow for regulations to have the force of law, including advanced notice and meaningful opportunity for public hearing. These steps are intended to afford regulated entities, and the otherwise interested public, notice and the opportunity to particulate in the formulation and revision of substantive state rules. The 2006 delineation of William and Marlene Pepins (hereinafter Pepin ) 36 acre parcel of real property (the Property ) as Priority Habitat for the Eastern Box Turtle (Terrapene carolina carolina) ( EBT ) clearly constitutes a regulation and is therefore procedurally invalid for failure to undergo notice and comment. Agency decisions to set aside Priority Habitat for listed species are governed by the MAPA, in addition to the best scientific evidence available standard of the MESA. As a general rule, a court reviewing an agency decision must accept the factual

17 4 determinations made by the agency if the court finds they are supported by substantial evidence in the record. Mass. Gen. Laws 30A 14(7); McGuiness v. Dept of Correction, 465 Mass. 660, 668 (2013). However, this is a principle of deference, not abdication, and courts will not hesitate to overrule agency determinations that are arbitrary and capricious. Finkelstein v. Board of Registration In Optometry, 370 Mass. 476, 478 (1976). The Division was content to rest its Priority Habitat delineation on a fifteen-year-old unconfirmed EBT sighing. In doing so it conveniently ignored its mandate to collect and use the best scientific evidence available. 321 Mass. Code Regs , 10.12(1)-(2). Although not obligated to conduct exhaustive studies to improve upon the best available science or to resolve all inconclusive aspects of species observation records, clearly there is a minimal level of scientific specificity required of the Division to support a satisfactory explanation for its decision. This includes a rational connection between the facts found and choice made and whether the Division has

18 5 taken a hard look at it decision. Motor Vehicle Mfrs. Ass n of U.S. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Where, as here, the Division s data rested upon uncorroborated hearsay and Pepin was denied any opportunity to illuminate the agency on the actual status of the EBT on his Property, the decision cannot stand. ARGUMENT I. THE DELINEATION OF PRIORITY HABITAT FOR THE EASTERN BOX TURTLE ON PEPIN S PROPERTY IS PROCEDURALLY INVALID A. Priority Habitat Delineations Are Regulations The MAPA, Mass. Gen. Laws c. 30A, 1-6, governs the process by which state agencies issue regulations. The term regulation is defined, in relevant part by the MAPA, as the whole or any part of every rule, regulation, standard or other requirement of general application and future effect,... adopted by an agency to implement or interpret the law enforced or administered by it. Id. at 1(5); See, e.g., Arthur D. Little, Inc. v.

19 6 Commissioner of Health & Hosps. of Cambridge, 395 Mass. 535, 542 (1985); Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 716 (1983); Purity Supreme, Inc. v. Attorney General, 380 Mass. 762, (1980). Put simply, a regulation announces general legal principles of future effect. Distinguishing a regulation from other types of nonlegislative agency pronouncements, namely advisory rulings, interpretive regulations, general statements of policy and rules of agency organization, is not always clear. Kilburn v. Nolan, No , 2006 WL (Mass. Super. Ct. Oct. 13, 2006), citing Mass. General Hosp. v. Rate Setting Comm n,et al., 371 Mass. 705, 707 (1977) (acknowledging the difficulty of framing an airtight definition of agency pronouncements as distinguished from regulations). However, in the case of Priority Habitat delineations the distinction is abundantly clear. The plain language of the MESA demonstrates that the legislature intended that habitat delineations are to operate as regulations. Section 4 of the MESA authorizes the Director of the Division to list

20 7 or delist endangered, threatened or special concern species by regulation after a public hearing consistent with the MAPA. Mass. Gen. Laws c. 131A 4. Likewise, the Director shall designate Significant Habitat 1 for species listed as endangered or threatened by regulation, after a public hearing, and subject to the provisions of chapter thirty A of the MAPA. Any revisions to such habitat designations, again, shall constitute the adoption of regulations subject to the provisions of chapter thirty A. Id. The same rulemaking directive adheres whenever the Director exercises her statutory grant of authority to promulgate and enforce standards designed to protect listed species and their habitats. Section 4 of the MESA provides The division of fisheries and wildlife shall, after a public hearing and in accordance with the procedures set forth in chapter thirty A, adopt any regulations 1 The MESA defines Significant Habitat as specific areas of the Commonwealth, designated in accordance with Section four, in which are found the physical or biological features important to the conservation of a threatened or endangered species population and which may require special management considerations or protection. Mass. Gen. Laws 131A 1

21 8 necessary to implement the provisions of this chapter. Id. Pepin agrees that the delineation of Priority Habitat is a valid use of the Division s authority to promulgate regulations to implement the provisions of the MESA. Brief of the Plaintiffs- Appellants, Pepin v. Div. of Fisheries & Wildlife, No 2012-P-1045 (Mass. App. Aug., 2012) at 26. However, such delineations are valid and binding only insofar as they are consistent with the procedural directives of the MAPA. Another factor relevant for labeling Priority Habitat delineations as regulations include their broad coverage, often encompassing several hundred acres. They are typically not landowner or project specific in application. As this Court recognized in Mass. General Hosp. v. Rate Setting Comm n, 371 Mass. 705, 707 (1977), in the degree that what the agency puts forward is complex, or of broad or pervasive coverage, notice and hearing will appear increasingly plausible and useful, so that the agency's proposition will be denominated a regulation. See Utility Contractors Ass n of New England, Inc. v. Comm rs of the Mass. Dep t of

22 9 Public Works, 5 Mass. L. Rptr. 17 (Mass. Super. Ct. March 12, 1996) (bid specification not a regulation because highly specific in application to a single project); Construction Indus. of Mass. v. Comm r of Labor and Indus., 406 Mass. 162, 170 (1989) (wage rates on specific projects, rather than industry wide, not regulations). Furthermore, they are not designed to fill in the details or clear up an ambiguity in existing habitat delineations. See Rate Setting Comm n, 371 Mass. at 707 (1977). Rather, they are unique, complex and inaugurate new limits on once unencumbered land. Priority Habitat delineations also carry the force of law attributable to a full blown regulation. See DaLomba s Case, 352 Mass. 598, 603 (1967) (rules promulgated pursuant to legislative grant of power generally have the force of law. ); La Casa Del Convaleciente, et al. v. Sullivan, 965 F.2d 1175, 1178 (5th Cir. 1992) (substantive rules subject to notice and comment have the force of law, while interpretive rules merely clarify or explain an existing statute or rule). Failure of a landowner to determine if their project falls within

23 10 priority habitat and take steps to avoid a take 2 carries penalties. 321 Mass. Code Regs Finally, this Court has stated that distinguishing a rule (or regulation) from other agency pronouncements is best accomplished by considering the functions or purposes that are furthered by notice and hearing. Rate Setting Comm n, 371 Mass. at 707. Given that the Director must take into account the best scientific evidence available before delineating Priority Habitat, potential habitat for listed species is typically found on private property and collaborative public/private stewardship is critical for MESA success, public notice and hearing is clearly central to the function and purpose of the Act. B. The Priority Habitat Delineation Violated the Fundamental Principles of Public Notice and Comment As Required by the Massachusetts Administrative Procedure Act 2 Take of a listed species is defined as... harm... kill... disrupt the nesting, breeding, feeding or migratory activity... Disruption of nesting, breeding, feeding or migratory activity may result from, but is not limited to, the modification, degradation or destruction of Habitat. 321 Mass. Code Regs

24 11 The October 1, 2006 delineation of Pepin s Property as Priority Habitat for the EBT constitutes a regulation and is therefore invalid for failure of the Director to provide the affected public the benefit of notice and a hearing prior to final delineation. The MAPA requires all state agencies 3 to give advance notice and hold a public hearing prior to the adoption, amendment, or repeal of any regulation if: (a) violation of the regulation is punishable by fine or imprisonment; or, (b) a public hearing is required by the enabling legislation of the agency or by any other law; or, (c) a public hearing is required as a matter of constitutional right. Mass. Gen. Laws c. 30A 2. If Pepin was to make any temporary or permanent improvement to the Property that would adversely modify Priority Habitat to such an extent as to take 4 an EBT the 3 The Division is an agency within the meaning of the MAPA. Mass. Gen. Laws c. 30A 1(2). 4 The Massachusetts Superior Court has recognized that the loss of habitat may constitute a take. See e.g., WRT Mgmt. Corp. v. Commonwealth, Div. of Fisheries & Wildlife, 14 Mass. L. Rptr. 609 (Mass. Super. Ct. May 29, 2002) (disruption of Marbled Salamander upland habitat, to the extent that species can no longer nest, breed, feed or migrate, may result in MESA take ); see also Capolupo v. Mass. Dep t of

25 12 MESA penalty provision, which includes fines, imprisonment or both, would trigger. 321 Mass. Code Regs Furthermore, Section 4 of the enabling legislation, from which the Division claims its authority to delineate Priority Habitat, authorizes the adoption of necessary regulations only after a public hearing and in accordance with the [notice and comment] procedures set forth in chapter thirty A of the MAPA. Mass. Gen. Laws c. 131A 4. Since 1993, the Director has been delineating Priority Habitat for state-listed species without first holding a public hearing with advance notice. This has denied stakeholders a forum to raise concerns about habitat determinations that affect them directly. 5 Adding insult to injury, in 2005 the Division amended its regulations to impose Envtl. Prot., 17 Mass L. Rptr. 190 (Mass. Super. Ct. Nov. 25, 2003) (habitat disruption may alter the nesting, breeding, feeding or migratory activities of bald eagle so as to trigger a take ). 5 In stark contrast, the Division regulations provide advance written notice to the public-at-large and special notice to landowners that land is being considered for designation as Significant Habitat. 321 Mass. Code Regs (1)-(4). In addition, the Director and Division Board are required to hold a public hearing prior to designating an area as Significant Habitat. Id. at (5).

26 13 project review filing requirements for projects located within a Priority Habitat of a listed species. The amendments force landowners to file a detailed project application 6 coupled with an administrative filing fee 7 prior to making any property improvements. The filing requirement applies regardless of whether a listed species physically occupies the property or the landowner believes the proposed project or activity will not result in a take. After filing an application the landowner must wait up to 30 days for the Division to provide a response letter stating whether the submission is complete. 321 Mass. Code Regs (1). If complete, the landowner must then wait up to an additional 100 days from the posting of the response letter for a Division finding on 6 Mesa Project Review Process/Filing Checklist available at regulatory-review/mesa-proj-review-check-elect.pdf (last visited 8/19/2013). 7 The filing fee is dependent on the number of acres proposed for disturbance and ranges from $ to $4, Mesa Fee Schedule available at (last visited 8/19/2013).

27 14 whether the project will result in a take of a listed species. 321 Mass. Code Regs (2). If the Division responds with a positive take determination the landowner is faced with several choices: (1) proceed without the Division s permission and face civil penalties, imprisonment or both; (2) abandon the project altogether; (3) modify the project and submit a new application; (4) consent to certain project and land-use restrictions, as dictated by the Division, designed to eliminate harmful impact to listed species and avoid a take, 321 Mass. Code Regs (3) or; (5) succumb to the timely and costly conservation and management permit process, 321 Mass. Code Regs (3). This later option is only available after all conditions and requirements set by the Director, and detailed in a Conservation and Management Plan ( CMP ), have been agreed upon by the landowner. The CMP must be designed to achieve a long-term Net Benefit to the conservation of the impacted species and may include monetary contributions or land acquisitions promoting the recovery of the impacted species. 321 Mass. Code Regs Despite the

28 15 heighted regulatory burdens, landowners have remained shut out of the Priority Habitat delineation process. Approximately one year following the imposition of the project review filing requirements the Division released its first Natural Heritage Atlas containing Priority Habitat for listed species in Massachusetts. The Atlas included delineation and mapping of Pepin s 36-acre Property, South Road lots 11 and 12, as EBT Priority Habitat. Following publication of the 2006 final rule (Pepin and other impacted property owners) had the option to petition the Division to reconsider the delineation. 321 Mass. Code Regs (8) (current through Jan. 26, 2007, Register # 1070). This post-deprivation opportunity for reconsideration is insufficient to constitute the kind of notice of proposed rulemaking and invitation to comment required by the MAPA. 8 8 Recognizing the harmful procedural shortcomings of its Priority Habitat delineation process, in 2010, after Pepins Property was delineated as Priority Habitat, the Division amended 321 Mass. Code Regs to add section six. See 321 Mass. Code Regs , current through Dec. 24, 2010, Register # 1172). Although this section provides for advance notice and a 60-day public comment period on proposed

29 16 II. THE DELINEATION OF PRIORITY HABITAT FOR THE EASTERN BOX TURTLE ON PEPIN S PROPERTY IS ARBITRARY AND CAPRICIOUS A. The Record Does Not Contain Substantial Evidence to Support the Division s Priority Habitat Delineation The Divisions 2006 delineation of Priority Habitat for the EBT is subject to review pursuant to the standards of the MAPA, Mass. Gen. Laws c. 30(A) 14, see New Mexico Cattle Growers Ass n v. U.S. Fish and Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir. 2001) (challenge to merits of critical habitat designation of southwestern willow flycatcher reviewed pursuant to the Federal Administrative Procedure Act); Otay Mesa Property L.P. v. U.S. Dept. of Interior, 714 F.Supp.2d 73, 78 (D.D.C. 2010) (challenge to merits of critical habitat designation of San Diego Fairy Shrimp reviewed pursuant to the Federal Administrative Procedure Act). Under this standard, an administrative agency s factual determinations must be supported by substantial evidence or such evidence as a reasonable mind might accept as adequate to support revisions or updates to the [Priority Habitat] map it does nothing to remedy Pepin s injuries and falls short of the MAPA s public hearing requirements.

30 17 a conclusion. Mass. Gen. Laws c. 30(A) (1)(6); Cobble v. Comm r of the Dept. of Soc. Serv., 430 Mass. 385, 390 (1999); Seagram Distillers Co. v. Alcoholic Beverages Control Comm n., 401 Mass. 713, 721 (1988). While agency findings are entitled to the benefit of the doubt in close cases, reversal by the reviewing court is appropriate if the cumulative weight of the evidence tends substantially toward opposite inferences or the agency offers nothing more than a mere scintilla of evidence in support of its conclusion. Cobble, 430 Mass. at 391; Kabatchnick v. Hanover-Elm Bldg. Corp. et al., 331 Mass. 366, 373 (1954). The Division s evidence that an EBT actually occurred on or immediately adjacent to Pepins property is distinctly thin. The Superior Court summarized the full extent of the sighting evidence as follows: On October 1, 2006, NHESP included the Premises in a Priority Habitat Map for the Eastern Box Turtle pursuant to 321 Code Mass. Regs This determination was based on a single June 3, 1991 sighting of a turtle [supposedly] within 200 to 300 meters of the Premises by a woman who removed the turtle from the road and transported it to the Audubon Society Laughing Brook

31 18 Sanctuary, where a professional herpetologist confirmed that it was a female Eastern Box Turtle approximately 20 years in age. At the time of the sighting, the turtle reportedly was crossing the road in the early evening, during the June nesting season. NHESP received a Rare Animal Observation Form documenting this observation on June 7, Memorandum of Decision and Order on Cross-Motions for Summary Judgment, William Pepin v. Div. of Fisheries & Wildlife, No. HDCV A (Mass. Super. Ct. March 22, 2011) at p.7. No employee of the Division has ever had a conversation with the woman to confirm her story. She deposited no photographs, written statement or other tangible evidence in support of her claim. In the fifteen year period between the alleged sighting and Priority Habitat delineation no Division employee ever visited the site to confirm the occurrence. It was Pepin s request for reconsideration that prompted two Division employees, both herpetology experts, to walk the entire Property. Neither was able to confirm the presence of any turtles or identify any past or present nesting, feeding or breeding activity on the Property (A and A - 217). In fact, Division records contain no indication whatsoever of any EBT s ever having occupied the Property or EBT

32 19 activity within one mile of the Property since 1991 (A - 222). The Division s decision clearly rested upon hearsay. That is, the Division cited as support a statement made by a third party 9 to prove the truth of the matter at issue - that an EBT was found adjacent to Pepin s Property. The final decision of the Administrative Law Magistrate opined that neither MESA nor the regulations require that more than one sighting is the necessary standard of sighting creditability before the Division may extend Priority Habitat protections. (see Recommended Final Decision at p. 25). Even if true, a single sighting which is based entirely on uncorroborated hearsay or rumor may never constitute substantial evidence supporting an agency decision. Consol. Edison Co. v. Nat l Labor Relations Bd., A handwritten note dated November 2, 2008, submitted as an exhibit with Petitioners rebuttal testimony states: AV spoke with Scott Jackson working at Laughing Brook sanctuary (in Hampden) at that time (1991). So, he believes this woman brought the turtle in and he signed off on the [Rare Animal Observation Form] RAOF. (fn p24 of the Recommended Final Decision, In the Matter of: South Rd, Lots 11 & 12, Hampden, MA, NHESP File No , No DH (Mass. Exec. Office of Energy & Envtl. Affairs, Div. of Fisheries & Wildlife, July 10, 2009).

33 20 U.S. 197, 230 (1938); Moran v. School Comm. of Littleton, 317 Mass. 591, (1945); Sinclair v. Director of Div. of Employment Security et.al., 331 Mass. 101, 117 (1954); Merisme v. Bd. of Appeals on Motor Vehicle Liab. Policies and Bonds, 27 Mass. App. Ct. 470, 475 (1989). B. The Delineation Does Not Satisfy the Best Scientific Evidence Available Standard Clearly there is a minimal level of scientific specificity required to delineate Priority Habitat for an endangered, threatened or species of special concern in the state of Massachusetts. The Division may not dodge the public notice and hearing requirements of the MAPA, point to a fifteen-yearold unconfirmed species sighting and then rely on an argument that the habitat delineation is supported by the best scientific evidence available. 321 Mass. Code Regs Condoning such agency action would run counter to the U.S. Supreme Court s caution that endangered species laws not be implemented haphazardly, on the basis of speculation or surmise. Bennett v. Spear, 520 U.S. 154, 176 (1997).

34 21 As acknowledged by the Division, the MESA is modeled after the Federal Endangered Species Act ( ESA ). Brief of Defendant-Appellee Div. of Fisheries & Wildlife, William Pepin & Marlene Pepin v. Div. of Fisheries & Wildlife, No P-1045 (Mass. App. Ct. Oct. 12, 2012) at Federal cases interpreting and applying the ESA s best scientific data available standard are therefore instructive with regard to the MESA s best scientific evidence available standard. 10 Although the ESA standard has not been defined by Congress or the agencies, 11 the courts have interpreted the phrase on several occasions. 10 In an effort to address environmental pollution and loss of species the U.S. Congress has ordered federal environmental agencies to support their decision with the best scientific data available, or some similar formulation. This mandate is found in the Endangered Species Act, which demands the best scientific data available, the Marine Mammal Protection Act, calling for the best scientific evidence available and the Magnuson-Stevens Fishery Conservation and Management Act which requires the best scientific information available. 16 U.S.C. 1533(b)(2); 16 U.S.C. 1371(a)(3)(A); 16 U.S.C. 1851(a)(2). Although the language is slightly different in each, the phrase seems to convey the same idea. Julie Joly, et al., Recognizing When the Best Scientific Data Available Isn t, 29 Stan. Envtl. L.J. 247, (May, 2010). 11 The U.S. Fish and Wildlife Service administers the ESA with respect to species under the jurisdiction of

35 22 In adopting a standard grounded in the best scientific data available rather than one of absolute scientific certainty, Congress intended for agencies to take [conservation] measures[s] before a species is conclusively headed for extinction. Defenders of Wildlife v. Babbitt, 958 F.Supp. 670, 680 (D.D.C. 1997). Recognizing that uncertainty is characteristic of scientific research, particularly as it relates to natural resources, the D.C. Circuit emphasized that agencies must utilize the best scientific data available, not the best data possible. Bldg. Indus. Ass n of Superior California v. Norton, 247 F.3d 1241, 1246 (D.C. Cir 2001). Occasional imperfections in data do not violate the standard. Id. at 1247; see Nat l Wildlife Fed n v. Babbit, 128 F. Supp 2d 1274, (E.D. Cal. 2000) ( where the available data is imperfect, the [Fish and Wildlife] Service is not obligated to supplement it or to defer issuance of its biological opinion until better information is available. ). the Secretary of the Interior, while the National Marine Fisheries Service administers the ESA with respect to species under the jurisdiction of the Secretary of Commerce. See 50 CFR 17.11, (a), , (b).

36 23 Furthermore, agencies are not required to conduct exhaustive independent studies to improve the pool of available data or resolve inconclusive aspects of the scientific information. Center for Biological Diversity v. Lohn, 296 F.Supp.2d 1223, 1236 (W.D. Wa. 2003) (citing Southwest Ctr. for Biological Diversity, et al. v. Babbitt, 215 F.3d 58, (D.C. Cir. 2000)). At the same time the federal courts have made clear that an agency may not engage in speculation or surmise or disregard superior data and still meet the best scientific data available standard. Bennett v. Spear, 520 U.S. 154, 176 (1997). This includes a rejection of agency decisions grounded in unreliable evidence. The District Court of Massachusetts touched on this issue in Blue Water Fishermen s Ass n v. Nat l Marine Fisheries Serv., 226 F.Supp.2d 330 (D. Mass. 2002). After announcing a prohibition on longline fishing in waters off the Atlantic coast Plaintiffs challenged the regulations as inconsistent with the best scientific information available standard of the Magnuson- Stevens Act. The court rejected Plaintiffs claim,

37 24 holding that the National Marine Fisheries Service s conclusions need not be airtight and although the evidence is weak,... does not render the agency s determination arbitrary and capricious. Id. at 338. The court nonetheless added that: At a certain point an agency might so liberally manipulate and interpret data as to fudge conclusions utterly unsupportable by any reasonable application of the scientific method. Such treatment of the best data would rise to the level of arbitrary and capricious and would require intervention of the reviewing court. Id. at 340. In 2002, the D.C. Circuit summarized the federal consensus on the best data component of the scientific standard. Under consideration was whether the Queen Charlotte goshawk should have been awarded threatened or endangered species status in southeast Alaska. The agency believed a listing was not warranted. In upholding the agency decision the court cautioned that that manipulation of data and selective reliance on certain data while ignoring other relevant and scientifically superior evidence is not permitted. Southwest Ctr. for

38 25 Biological Diversity v. Norton, 2002 WL , at 8 (D.D.C. July 29, 2002); City of Las Vegas v. Lujan, 891 F.2d 927, 933 (D.C. Cir. 1989); see also Southwest Ctr. for Biological Diversity v. Babbit, 926 F. Supp. 920, 927 (D. Ariz. 1996) (agency s unexplained reliance on earlier data while ignoring fresh data violated the ESA). The delineation of Priority Habitat, similar to the delineation of Critical Habitat under the ESA, must be made on the basis of the Best Scientific Evidence Available. In contrast to the ESA, the Best Scientific Evidence Available standard is defined in the MESA regulations. Best Scientific Evidence Available means species occurrence records, population estimates, habitat descriptions, assessments, peer reviewed scientific literature, documented consultation with experts and information contained in the records of the Natural Heritage and Endangered Species Program or other credible scientific reports or species sighting information reasonably available to the Director. 321 Mass. Code Regs MESA regulations at 321 Mass. Code Regs (2) add an additional layer of requirements to the delineation process: The delineation of Priority Habitat... shall be based on the Best Scientific

39 26 Evidence Available and shall include examination of individual occurrence records in the context of species listing status, and shall apply the following criteria: the nature and/or significance of the occurrence as it relates to the conservation and protection of the species, including but not limited to, evidence of breeding, persistence, life stages present, number of individuals, extent of necessary supporting habitat, and proximity to other occurrences. A third pre-delineation requirement is found in the MESA s regulatory definition of Priority Habitat. Priority Habitat means the geographic extent of Habitat for State-listed Species as delineated by the Division pursuant to 321 CMR Priority Habitats are delineated based on records of State-listed Species observed within the 25 years prior to delineation and contained in the Division s NHESP database. 321 Mass. Code Regs By its own regulations, the MESA demands that the delineation of Priority Habitat be supported by robust scientific evidence and verifiable species observation records. With this, the Division must provide a satisfactory explanation for its decision, including a rational connection between the facts found and the choice made, Motor Vehicle Mfrs. Ass n of U.S., Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). It has not done so. Instead, the Division has justified

40 27 its delineation on an unverified 1991 claim grounded on hearsay. 12 It is agreed that [t]he MESA regulations do not require the Division to apply non-existent criteria if studies or information are not available. (Recommended Final Decision, p.29). At the same, however, the Division may not deny the regulated public notice, hearing and comment and then conveniently take a head-in-the sand approach to collecting and analyzing information. Endorsing such action would run counter to the Best Scientific Evidence Available standard. C. This Court Should Take a Hard Look at the Scientific Evidence the Division used to Support the Priority Habitat Delineation It is well-established in the Commonwealth of Massachusetts that courts will accord administrative agencies a high level of deference regarding their decision making. Agency scientific determinations will be upheld with little inquiry into the underlying factual predicate for their decisions. The dangers of such superficial review are many. It 12 The Final Decision of the administrative court highlights a 2009 EBT sighting in the vicinity of Pepin s Property as tend[ing] to support the June 3, 1991 observation. (page 21). However, this sighting was made three years after the 2006 delineation.

41 28 encourages a risk of substantive bias in scientific studies, a lack of accountability on the part of the agency, promotes public distrust and allows policy choice to intrude and sometimes overwhelm highly complex factual determinations. As observed by the United States Court of Appeals for the Seventh Circuit, Agencies must be accountable. If they are never subject to levels of judicial review higher than that of complete deference, even when they act manipulatively, a world of government without accountability not contemplated by the Supreme Court in Chevron or Congress in the Administrative Procedure Act is created. Nat l Labor Relations Bd. v. GranCare, Inc., 170 F.3d 662, 670 (7th Cir. 1999) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). This Court should follow the lead of the Federal courts and sanction a more intrusive form of judicial review. This is particularly appropriate where, as in the case of Priority Habitat delineations, an agency is operating outside the confines of public notice and hearing.

42 29 In 1971 the U.S. Supreme Court in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), articulated a new standard of judicial review of agency actions under the Federal Administrative Procedure Act. Unlike earlier applications of the arbitrary and capricious standard of review, Overton Park did not apply a presumption that the agency s decision was supported by the facts; rather, a searching and careful inquiry into the factual basis of the decision was endorsed. Id. at 416. Often referred to as the hard look, a reviewing court must make a substantial inquiry [and not] shield [the Agency] from a thorough, probing, indepth review and explore whether the decision was based on a consideration of the relevant factors. Id. at As one commentator has noted, [t]he [hard look] doctrine helps to ensure that agency decisions are determined neither by accommodation of purely private interests nor by surreptitious commandeering of the decisionmaking apparatus to serve an agency s idiosyncratic view of the public interest. Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals to

43 30 Modify Judicial Review of Notice and Comment Rulemaking, 75 Tex. L. Rev. 483, 491 (1977). 13 CONCLUSION For the foregoing reasons, the judgment of the Superior Court should be reversed. Respectfully submitted, DATED: August 20, 2013 Jeffrey B. Augello D.C. Bar No *Motion for Admission Pro Hac Vice Pending David S. Jaffe BBO# National Association of Home Builders th Street, N.W. Washington, D.C Tel: Fax: Attorneys for Amicus Curiae National Association of Home Builders 13 For an interesting argument in support of a hard look standard of review see Justice Lynch s dissenting opinion in Arthur D. Little, Inc. v. Commissioner of Health and Hospitals of Cambridge, 395 Mass. 535, (1985).

44 31 CERTIFICATE OF COMPLIANCE Undersigned counsel hereby certifies that this brief complies with all Massachusetts Rules of Appellate Procedure pertaining to briefs, including but not limited to Rules of Appellate Procedure 16 and 20. Jeffrey B. Augello D.C. Bar No

45 CERTIFICATE OF SERVICE Undersigned counsel hereby certifies that on this DATE day of August 2013, I caused two true copies of the Brief of Amicus Curiae National Association of Home Builders to be served by Federal Express Priority Overnight, upon each of the following counsel of record: William J. Murray 101 State Street, Suite 1200 Springfield, MA Counsel for Appellants Matthew C. Ireland Office of the Attorney General Environmental Protection Division 1 Ashburton Place, Room 1813 Boston, MA Counsel for Division of Fishers and Wildlife Jacob M. Heller Douglas Hallward-Driemeier Jacob Scott Ropes & Gray Prudential Tower 800 Boylston Tower Boston, MA Counsel for Amici Curiae Audubon Society, Massachusetts Association of Conservation Comm ns, Conservation Law Foundation Damien M. Schiff Cal. Bar No Jonathan Wood Cal. Bar No Pacific Legal Foundation 930 G Street Sacramento, CA Tel: Counsel for Amicus Curiae Pacific Legal Foundation

46 Donald R. Pinto, Jr. No Rackemann, Sawyer & Brewster, P.C. 160 Federal Street Boston, MA Tel: Counsel for Amicus Curiae Pacific Legal Foundation Jeffrey B. Augello D.C. Bar No National Association of Home Builders th Street, N.W. Washington, D.C Tel: Fax: *Motion for Admission Pro Hac Vice Pending David S. Jaffe BBO# National Association of Home Builders th Street, N.W. Washington, D.C Tel: Fax: Attorneys for Amicus Curiae National Association of Home Builders DATED: August 20, 2013

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