Protecting Endangered Species Habitat on Private Property: The Public-Private Constitutional Balance Need Not Be a Zero-Sum Game

Abstract

In 2006, the thirty-six acre parcel of land in Hampden, Massachusetts on which William and Marlene Pepin planned to build their retirement home was designated as “priority habitat” for the eastern box turtle, a species of special concern in the Commonwealth. The designation triggered development restrictions intended to prevent harm to the turtle, prompting the Pepins to challenge both the validity of the Massachusetts Endangered Species Act regulations that implement the priority habitat scheme, and the decision by the Department of Fisheries and Wildlife to so delineate their property. The Massachusetts Supreme Judicial Court upheld the priority habitat scheme and its application to the Pepins’ property. Although the outcome was a victory for the environment, this Comment argues that the court should have broadened its explanation in order to prevent confusion among Massachusetts landowners regarding what avenues for defending their private property rights remain available.