Updated June 2021 (original post below)
This is a case about lack of government transparency and accountability. This is case about government overreach, overregulation and abuse of power. This case is a perfect example of what happens when a state agency has autonomy, total control and unchecked power without any over sight and only the courts to answer to. This creates a bureaucracy so dense no private citizen can ever expect to be reasonable served, nor find reasonable justice. The cost to litigate matters before an agency like this is so high, the agency never needs to worry about being reined in by the courts and seldom will there be any political will power strong enough to enact any sort of reasonable reform.
This case revolves around the priority habit regulations of the Massachusetts Endangered Species Act (MESA), a regulatory device employed by the Division of Fisheries and Wildlife (DFW) and it’s subagency the Natural Heritage Species Program (NHESP).
The DFW and NHESP have wide latitude to designate species for protection. They don’t ever have to answer to an outside agency or body to do so, they don’t have to acknowledge or accept any real, existing species population data, even those data widely accepted and touted by the national and international scientific and ecological communities. If various national and global scientific and ecological communities consider a species abundant and designated “of least concern,” the DFW and NHESP are still free to designate that species for protection. They are free to pick their own ecological winners and loses in the quest for species protection.
To be clear, we are in a climate crisis, have been for years, and will be for the rest of our time on earth. All species on this planet, including man are imperiled to a certain degree. We are witnessing a stunning, tragic loss in our planet’s biodiversity. But government regulations are seldom the answer to these problems. Real conservation and preservation of land and of species takes concerted efforts at public education, dissemination of real, accurate information, building of partnerships and coalitions and harnessing the power of private capital investment. By designating or “listing” species that none of the rest for the organized ecological world considers high priorities for protection, the NHESP is actually directing resources away from protecting species that are more legitimately recognized by the broader ecological community as needing those resources for protection. By funding budgets for bloated, inefficient government agencies that are concerned about making money to protect their own jobs and existence, real capital resources are being wasted when they could be applied directly to conservation. In the long run, this short sighted, self-interested management and regulation will actually end up imperiling more species. I encourage reader to sit down and think of the things they feel government does better than the private sector.
Again, real conservation and preservation of land and of species takes concerted efforts at public education, dissemination of real, accurate information, building of partnerships and coalitions and harnessing the power of private capital investment. What occurs in the DFW and NHESP is the opposite
of all of this. The priority habitat system allows state agent or “qualified observers” to make and record observations of species on the DFW protected list, observations of a “listed species.” Then, based on a speculative algorithm the NHESP creates a map of possible locations this species might be found based on the observation data point. Even though much of these regulatory maps offer zero statistical chance of finding or locating a listed species, all land covered by this speculative map is then restricted for use according the priority habitat regulation and cannot be used or altered without permission of the NHESP. Here is the unbelievable part. The NHESP doesn’t have to notify the landowner that their property has been restricted. And what is worse, they will and have entered private property without permission to do so. And yes, entering private property without permission to collect environmental data is still considered trespass and subject to prosecution. Well, you might ask, how can the Commonwealth enter private property without permission, create a regulatory map with data collected during this illegal entry and use this regulatory map with its illegally obtained data to restrict, prosecute and fine the taxpayers, including the very landowner whose property they are violating? Well, the answer is simple. They can because they can. They can because they do. They can because the regulations are written giving the DFW and NHESP total authority without any oversight and the regulations are so dense carefully constructed they are virtually impenetrable. And so far, there has been nobody with either a deep enough bank account or enough political influence to put a stop to these practices. To add insult to injury, any crimes of entry committed by the DFW and NHESP are covered up by the law that protects observations of listed species. The general public is not allowed access to this information.
May 2021 (original posting)
It all began in 2017. My husband Bart and I were looking to live in a farm-friendly town in Massachusetts -close to the ocean. We have horses, three children and a menagerie of other pets. I have lived in MA for my entire life, and Bart grew up on the coast of Maine and has lived in MA since the 1990's.
We agreed to live in beautiful South Dartmouth. A Right-to-Farm community. We searched high and low for an appropriate property that had a great farm house and enough land for the horses. We found several that fit the bill. The house on Allen's Neck Road seemed like it fit us the best. We checked in with the conservation commision in Dartmouth first as we knew we would have to clear some trees on the property. They said it was not a problem. Our realtor said it would be a great property to raise the horses and kids! Again, clearing trees not an issue. We had closing attorneys when we purchased the house, never mentioned any potential issues.
We moved in and cleared some trees on our property to create paddock space for the horses. We had plans to replant many trees (we have since planted dozens of trees and shrubs.) Very soon after, we were told our entire property was a "priority habitat" for (non-endangered) marbled salamanders. We didn't think it was a big deal as the conservation committee did not know this information, the realtor did not know this and the closing attorney-did not know. We were not building anything- just clearing space for the horses with the intent to replant many trees. We were contacted by a few state agencies and quickly realized we had a big problem on our hands. As it turns out, our entire property, in fact the over 60 acres and 5 adjacent parcels that surround our 12 acres are all mapped priority habitat.
Our lives have a been a nightmare ever since. Since 2017. The office of the Massachusetts Attorney General (AG), Maura Healey and her assistant Matthew Ireland have made our lives a living hell. We have hired lawyer after lawyer, expert after expert trying to figure out how to get out of this mess. We have tried to discuss options with Maura Healey's office. They wanted to take hundreds of thousands of dollars from us, to "remedy" the situation. They also wanted to take several acres of our land so that we cannot ever use it, especially for the purpose of what we needed it for, horse space. They have called us criminals. For taking "priority habitat" of a salamander. Not building anything, just creating a space for our horses.
Keep in mind, there are 3 acres of wetlands that we have not touched, on our property. The Dartmouth DPW has dumped large trees in this wetland and had a backhoe in that area. The state doesn't mind that though. Neighbors have installed driveways through "priority habitat." That was ok. The person who built our house cut down dozens of trees and had horses on the property before us. That was also ok.
The funniest thing about it all is, my husband Bart is a Veterinarian. He literally saves the lives of animals for a living. Thirty years of saving lives: pets, strays, wild animals you name it. He saves them. I worked with him at his clinic for twelve years doing the same. We went on dates (in the early days of our relationship) where we trapped community cats, spaying, neutering and finding homes for them. I went to my first animal rights protest when I was 15. We have taken in dozens of animals from people who no longer wanted their pets and found homes for them. We have stopped on highways to save wild animals on the side of the road. We have answered calls at 2am from friends, family members, clients and complete strangers to give pet advice.
We are not perfect people (not in the slightest!) but WE LOVE ANIMALS. We would do anything in our power to help any animal at any time for any reason.
Why...would we purposely "destroy" the habitat of an animal? Does that make sense? If we were told this property was not suitable for a horse farm, we would not have purchased it.
The AG's office claims they tried to keep this out of court. They tried to negotiate? Their idea of negotiating was demanding penalities in the six figures and wanted to take most of our land. The statute of limitations had already run out on them. We allowed it to be continued and continued in an effort to solve this. We could not agree to their unrealistic demands so, the AG's office served us with court papers one week before Christmas 2020. We are officially being sued by the state. The state is suing us for $42,000,000+, plus $30,000+ each day until this is resolved.
Yes, that's right...$42+ million dollars. Sounds like a joke doesn't it? We could only wish.
The state wants to hire expensive scientists to occupy our property to do "research" for the next six months. Take a guess at who is paying for this. That's right, we the taxpayers. Me, you, all of us. This is what our hard earned money is going towards in paying taxes in Massachusetts.
My children have asked why this is happening to us. If these lawyers are going to take our home. We don't know what to tell them. We are now in the final stages of resolving this issue, in court, against the regulatory behemoth that is the Commonwealth. This issue has already nearly torn my family apart from the stress, drained one college fund while clearly on the way to draining two more. But this never should have happened. The DFW and NHESP have consistently refused to record their land claims at the Registry, just like the DEP does for wetlands, citing excessive costs and logistics. And the State Legislature has lacked the political will to reform MESA. Why are the taxpayers not protected against these secret land claims? Unless you are aware of these regulations, and most people are not, you have no idea how to become aware. At one time as many as 400,000 acres of the 5 million acres in MA were restricted by priority habitat designation. That means nearly one in ten acres are restricted. There are probably landowners reading this right now that are not aware their land has been restricted by the state. Just down the road from us a couple bought a house totally mapped a priority habitat. I wonder if they know? I wonder if their broker knew? I wonder if the previous owner knew and informed the buyers? This should never be a secret. Our story is not alone. But in this information age the news cycle is short. We are not naïve. As much as we’d like to catalyze real change and demand transparency and accountability from our government, the environmental lobby is too powerful in the Commonwealth.
We are not a huge corporation or building contractor. We are private citizens. Lawsuits like this happen when builders want to create subdivisions and huge developments. We are a regular family like yours. Like the millions of other hard working people of Massachusetts. Why us?
**Massachusetts home/land owners beware: The AG's office claims that they do not have to tell private citizens of this state if their property is mapped as a priority habitat.**
If you are moved by anything written on this page, we welcome you to reach out to the office of Maura Healey. Rumor has it that Ms. Healey will be running for Govenor of Massachusetts in next year's election. Do we want someone like her to be Govenor of this state? She thinks she can just take privately owned land?
Attorney General Maura Healey
Asst. Attorney Matthew Ireland
1 Ashburton Place
Boston, MA 02108
Attn: the Massucco Family case
Or if you have any advice for us please feel free to reach out: firstname.lastname@example.org.
Thanks for reading.
Massachusetts has it's own Bill Of Rights.
Excerpt from Article X --"Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. But no part of the property of any individual, can, with justice, be taken from him, or applied to public uses without his own consent, or that of the representative body of the people: In fine, the people of this Commonwealth are not controlable by any other laws, than those to which their constitutional representative body have given their consent. "