William and Marlene Pepin (petitioners) own approximately thirty-six acres of land in Hampden.
We are asked also to decide whether, in adjudicating the petitioners’ challenge to the application of the priority habitat mapping guidelines to their property, a Department of Fish and Game magistrate properly directed a decision in favor of the division without holding a hearing. Because the petitioners did not meet their burden of demonstrating that the division improperly delineated their property as priority habitat, we conclude that granting such a directed decision was proper.
1. Factual background and prior proceedings. We summarize the following undisputed facts. The petitioners’ property in Hampden County consists of two building lots, totaling approximately thirty-six acres in area. They intend to build a home on the larger lot. However, in 2006, a year after the division adopted revised MESA regulations, the area encompassing the petitioners’ property was delineated a priority habitat for the eastern box turtle, a species of special concern. See 321 Code Mass. Regs. § 10.90. In accordance with the division’s guidelines, the delineation was based on a private citizen’s sighting, in 1991, of a female box turtle of reproductive age, on or near the parcel in question. The turtle was identified by a professional herpetologist at the Audubon Society Laughing Brook Sanctuary.
As a result of the priority habitat designation, the petitioners
In September, 2008, the petitioners requested reconsideration of the delineation of their property as priority habitat. See 321 Code Mass. Regs. § 10.12(8) (2010). As part of the requested review, a turtle conservation biologist and regulatory review manager from the division visited the petitioners’ property with the petitioners’ attorney to conduct a habitat evaluation. This site visit indicated that the location of the proposed project was within the priority habitat area for the eastern box turtle, and that the property, with its upland deciduous forestry, was indeed “ideal habitat” for the turtle. Determining that the habitat mapping procedures for the eastern box turtle were implemented properly in accordance with the regulations, and that the location of the proposed project was within the priority habitat for the eastern box turtle, the division ultimately denied the request.
The petitioners requested an adjudicatory hearing pursuant to 321 Code Mass. Regs. § 10.25(1) (2010), which provides for informal hearings in accordance with the procedures set forth in 801 Code Mass. Regs. §§ 1.02, 1.03 (1998). The parties proceeded with such an informal hearing and agreed to an expedited hearing schedule. The petitioners raised two issues. First, the petitioners challenged the validity of the division’s method for delineating priority habitats, which does not afford landowners the same procedural protections due under MESA to those own
After the submission of written testimony, the division moved for a directed decision in its favor on the second claim, arguing that, “[g]iven the array of scientific and technical criteria that the [d]ivision considers when determining whether a geographic location is [p]riority [h]abitat for a [S]tate-listed species, . . . the unsupported opinions of an unqualified lay person on such matters are wholly insufficient” to carry the petitioners’ burden. The magistrate granted the division’s motion, thus obviating the need for an evidentiary hearing and the attendant cross-examination of witnesses. The magistrate concluded that, “as a matter of law and fact, [petitioners . . . presented no credible evidence to support their final claim in this appeal.” The division adopted the decision of the magistrate.
The petitioners sought review in the Superior Court, pursuant to G. L. c. 30A, § 14, where they also pursued their claim for declaratory relief regarding the validity of the priority habitat regulations. A Superior Court judge denied the petitioners’ motion for judgment on the pleadings and affirmed the division’s decision adopting the magistrate’s directed decision. A different Superior Court judge entered summary judgment in favor of the division on the petitioners’ claim for declaratory relief. That judge reasoned that the priority habitat regulations “are consistent with MESA’s prohibition on the ‘take’ of any listed species and MESA’s broad purpose of protecting and conserving wildlife and wildlife habitat” and, thus, that the regulations do not
2. Enactment of MESA. The Legislature enacted MESA, a statute that we have not previously had occasion to construe, in 1990, to conserve plant and animal species within the Commonwealth and to protect their habitats. 1990 Senate Doc. No. 1768. At the time of MESA’s enactment, the Commonwealth had lost seventy-two species over the prior 150 years. Diane Dumanoski, Sweeping Mass. Law on Endangered Species Is Signed, Boston Globe, Dec. 28, 1990, at 1. Over thirty other States already had enacted species-conservation laws, id., and the Federal Endangered Species Act, 16 U.S.C. §§ 1531-1544 (Federal Act), had been in existence for seventeen years. The Federal Act contemplates cooperation “to the maximum extent practicable with the States,” 16 U.S.C. § 1535(a), but the Federal government may enter into a cooperative agreement with a State for the purpose of species conservation only if “the State agency has established acceptable conservation programs, consistent with the purposes and policies of [the Federal Act], for all resident species of fish or wildlife in the State which are deemed by the Secretary to be endangered or threatened . . . .” 16 U.S.C. § 1535(c)(1)(B). See 16 U.S.C. § 1535(c)(2)(B) (same provision for endangered or threatened plant species).
MESA establishes conservation programs that parallel the Federal Act in a number of ways, while also expanding protection for species’ habitats and increasing the number of species covered. At the time of MESA’s enactment, the Federal Act covered only twenty-two of the 400 at-risk species in Massachusetts. Dumanoski, supra. MESA extends protection to all at-risk species within the Commonwealth by authorizing the division to compile a list of such species based on the “best scientific evidence available,” G. L. c. 131 A, § 4, as the Federal Act does. See 16 U.S.C. § 1533(a)(1), (b)(1)(A). Also like the Federal Act, see 16 U.S.C. §§ 1533(a)(3)(A)(i), 1538(a)(1)(B), MESA prohibits human interference with at-risk species or their habitats, see G. L. c. 131 A, § 2, and authorizes the division to regulate habitats of special significance for the survival of certain species, see G. L. c. 131 A, § 4. Indeed, MESA goes beyond the
3. Statutory and regulatory framework. MESA has two key components. First, it authorizes the division to delineate as significant habitats certain geographic areas of the Commonwealth, areas in which property development is generally barred. Second, it prohibits human interference with certain protected species. To implement these directives, the statute establishes a taxonomy of at-risk species as either endangered, threatened, or of special concern (State-listed species), according to the relative danger of extinction confronting them.
a. Significant habitat scheme. Recognizing habitat degradation as among the leading causes of species decline, 1990 Senate
Property located within a significant habitat is presumptively not to be developed; “[n]o alteration of a significant habitat may commence without a written permit issued by the director.” G. L. c. 131A, § 5. Alteration, in turn, is defined as “to change the physical or biological condition of a habitat in any way that detrimentally affects the capacity of the habitat to support a population of endangered or threatened species.” G. L. c. 131A, § 1.
A proponent of development in a significant habitat must submit detailed information to the division, and “[a] permit shall be granted only upon a finding by the director that the proposed action will not reduce the viability of the significant habitat to support the endangered or threatened species population involved.” G. L. c. 131 A, § 4. An individual who impermissibly alters a significant habitat, as prohibited by either statute or regulation, is subject to any combination of a fine of between $1,000 and $10,000, imprisonment of up to ninety days, and a civil assessment not to exceed $10,000. G. L. c. 131A, § 6 (b), (c).
Given that a significant habitat designation often entails a serious restriction on property rights, MESA affords certain protections to affected landowners. First, landowners are entitled to advance written notice that the land is being considered for designation as a significant habitat. G. L. c. 131 A, § 4. Second, a public hearing is required before any decision is made on the proposed designation. Id. Third, the habitat designation must be recorded in the registry of deeds in the county in which the land is located, id., such that the designation will be apparent to purchasers in a title examination. Finally, a landowner aggrieved
MESA authorizes the division to “adopt any regulations necessary to implement the provisions of [G. L. c. 131A]” in accordance with the procedures outlined in G. L. c. 30A. See G. L. c. 131 A, § 4. The division’s regulations implementing the prohibition on the alteration of significant habitats essentially elaborate on the statutory requirements. See 321 Code Mass. Regs. §§ 10.30-10.72. The regulations also clarify that, although the statute prohibits development in significant habitats, proponents of such development may be granted a variance where one is “necessary to avoid permit conditions or the denial of a permit that so restricts the use of property as to constitute an unconstitutional taking without compensation,” provided that there are no reasonable alternatives to development and that the project can be conditioned to protect the viability of the habitat. 321 Code Mass. Regs. § 10.70.
b. Prohibition on “takes” of State-listed, species. In addition to setting forth a system for delineating significant habitat, MESA prohibits human interference with State-listed species by providing that “no person may take, possess, transport, export, process, sell or offer for sale, buy or offer to buy, nor shall a common or contract carrier knowingly transport or receive for shipment, any plant or animal species listed as endangered, threatened or of special concern or listed under the Federal Endangered Species Act.” G. L. c. 131A, § 2. Of these prohibited activities, only the term “take” is statutorily defined, and broadly so, to include both harming species themselves and disturbing their habitats. To “take” is to “harass, harm, pursue, hunt, shoot, hound, kill, trap, capture, collect, process, disrupt the nesting, breeding, feeding or migratory activity or attempt to engage in any such conduct, or to assist such conduct, and in reference to plants, to collect, pick, kill, transplant, cut or process or attempt to engage or to assist in any such conduct.”
Violation of this prohibition on takes can result in any combination of a fine of up to $500, imprisonment of up to ninety days, and a civil assessment not to exceed $10,000. G. L. c. 131 A, § 6 (a), (c). “The commission of a prohibited act with respect to each individual animal or plant, or part thereof, shall constitute a separate violation,” G. L. c. 131A, § 6 (d), and subsequent violations are subject to enhanced penalties, G. L. c. 131 A, § 6 (a).
In promulgating regulations to implement the take provision, the division has established a second type of habitat designation, that of “priority habitat,” for which MESA makes no express provision. See 321 Code Mass. Regs. §§ 10.11-10.26. The regulatory scheme involving priority habitat designation enables the division to review projects on a case-by-case basis and to give direction to landowners concerning how to avoid or mitigate impermissible takes of State-listed species or their habitat. See 321 Code Mass. Regs. § 10.12(1) (“Priority habitats are [u]sed for screening projects and activities that may result in the [t]ake of State-listed species and to provide guidance to [rjecord [ojwners regarding a [pjroject or [ajctivity through consultation with the [djivision”). Unlike the significant habitat designation, which protects only endangered and threatened species, 321 Code Mass. Regs. § 10.31, the priority habitat designation applies to all three categories of species (endangered, threatened, and of special concern). See 321 Code Mass Regs. § 10.12(2). Priority habitats are delineated according to habitat mapping guidelines, prepared for each species, “that identify the important habitat features, and that describe the methodol
No project or activity may commence on property located within a priority habitat until the division has reviewed the project and determined whether a take of protected species will result.
Even if the project is deemed to result in a take, the division may nonetheless issue a “conservation and management permit,” “provided there is a long-term [n]et [b]enefit to the conservation of the impacted species.” 321 Code Mass. Regs. § 10.23(1). Such a permit may issue where the landowner adequately has assessed alternatives to the proposed project, an
Here, the petitioners mount a facial challenge to the validity of the priority habitat regulations. They argue that the regulations exceed the authority granted to the division and are inconsistent with MESA, insofar as they restrict property development without affording landowners the protections that the statute guarantees to owners of private property designated as significant habitat. The petitioners maintain also that the division erred in adopting the decision of the magistrate who adjudicated their challenge to the division’s application of the priority habitat mapping guidelines to their property and directed a decision in favor of the division, thereby depriving them of their right to cross-examine the division’s witnesses.
4. Discussion, a. Validity of priority habitat regulations. Duly promulgated regulations of an administrative agency are presumptively valid and “must be accorded all the deference due to a statute.” Massachusetts Fed’n of Teachers, AFT, AFL-CIO v. Board of Educ., 436 Mass. 763, 771 (2002), quoting Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 723, cert. denied sub nom. Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936 (1983). The burden is on the party challenging the regulation to “demonstrate that [it] is invalid or illegal.” Entergy Nuclear Generation Co. v. Department of Envtl. Protection, 459 Mass. 319, 329 (2011). Regulations are invalid “when the agency utilizes powers ‘neither expressly nor impliedly granted by statute.’ ” Commonwealth v. Maker, 459 Mass. 46, 49-50 (2011), quoting Morey v. Martha’s Vineyard Comm’n, 409 Mass. 813, 818 (1991). Nor may regulations validly be promulgated where they “are in conflict with the statutes or exceed the authority conferred by the statutes by
“[W]e look to the statute as a whole to determine the scope of the agency’s power.” Commonwealth v. Maker, supra at 50, quoting Grocery Mfrs. of Am., Inc., v. Department of Pub. Health, 379 Mass. 70, 75 (1979). “[A] regulation . . . need not necessarily find support in a particular section of [the enabling statute]; it is enough if it carries out the scheme or design of the chapter and is thus consistent with it.” Entergy Nuclear Generation Co. v. Department of Envtl. Protection, supra at 331, quoting Cambridge Elec. Light Co. v. Department of Pub. Utils., 363 Mass. 474, 494 (1973). However, an agency may not create additional requirements not contemplated by the enabling statute. See Commonwealth v. Maker, supra at 51.
As discussed supra, MESA sets out a scheme that prohibits takes of all State-listed species, see G. L. c. 131A, §§ 2-3, and that protects the habitats of endangered and threatened species by designating them significant habitats. See G. L. c. 131 A, §§ 4-5. The petitioners maintain that the priority habitat regulations are facially invalid insofar as they restrict development of private property without providing the protections guaranteed by the statute to landowners located within significant habitats. The petitioners do not challenge the division’s ability to protect through regulation other habitat areas in addition to the statutorily authorized significant habitats; however, they argue that MESA’s creation of the significant habitat designation, and attendant procedural protections for landowners, evinces a legislative intent to afford all landowners such protections whenever property development is restricted.
The division argues in response that the priority habitat regulations should be upheld as a reasonable means of implementing MESA’s objectives. Contrary to the petitioners’ argument that priority habitats are merely significant habitats with “cosmetic differences,” and thus circumvent the protections afforded by significant habitats, the division contends that priority habitats in fact serve a different statutory purpose. Priority habitat designations, the division asserts, implement MESA’s take prohibi
As was the case with a different environmental statute that we interpreted recently, “the purpose of [MESA] is unambiguous.” See Entergy Nuclear Generation Co. v. Department of Envtl. Protection, supra at 329 (interpreting Clean Waters Act, G. L. c. 21, §§ 26-53). Appreciating that “the degradation and destruction of wild plant and animal habitats are the greatest threats to those species that are in danger of serious decline or extirpation,” the Legislature enacted MESA “to protect the habitats of [endangered, threatened and special concern species] to the greatest extent possible.” 1990 Senate Doc. No. 1768. To effectuate this purpose, MESA codifies a comprehensive definition of illegal takes to include harm to habitats in the form of “disruption of] the nesting, breeding, feeding or migratory activity or attempt to engage in any such conduct, or to assist such conduct,” G. L. c. 131 A, § 1, and contemplates that the division will promulgate regulations to implement this prohibition. See G. L. c. 131 A, § 6 (“Any person who violates the provisions of the [take prohibition] or the rules and regulations promulgated thereunder, shall be punished ...” [emphasis supplied]). MESA also prohibits all alteration of significant habitats, as designated by the division, G. L. c. 131 A, § 2, and delegates to the division broad authority to “adopt any regulations necessary to implement the provisions of [G. L. c. 131A],” G. L. c. 131A, § 4.
Such broad authority extends to the formulation of the priority habitat concept as a means of implementing MESA’S prohibition on takes. “We will not substitute our judgment as to the need for a regulation, or the propriety of the means chosen to implement the statutory goals, for that of the agency, so long as the regulation is rationally related to those goals.” Entergy Nuclear Generation Co. v. Department of Envtl. Protection, supra at 331-332, quoting American Family Life Assurance Co. v. Commissioner of Ins., 388 Mass. 468, 477, cert. denied sub
Here, the division has determined that the priority habitat scheme is an appropriate means of protecting “species put in harm’s way by a project or activity that disrupts behavior essential to survival,” so as to advance the larger statutory purpose of protecting State-listed species and their habitats “to the greatest extent possible.” 1990 Senate Doc. No. 1768. The priority habitat regulations serve as a tool for mapping the habitats of all State-listed species, in order to provide information to both landowners and the division about planned property development that could interfere with such species. The review process outlined by the regulations equips the division with the capacity to preempt otherwise irreparable harm to habitats, a central objective of MESA embodied in the take prohibition. Were it not for the priority habitat regulations, the division would have no centralized way of obtaining information concerning planned property development in areas not designated significant habitat,
That MESA creates a scheme for designating and regulating significant habitats of endangered and threatened species does not preclude the division from enacting regulations to address the more general problem of preventing takes of all State-listed species in a manner that is more tailored to individual projects and habitats. As we consistently have held, “[sjpecific statutory
While it is true that the priority habitat regulations do not offer landowners comparable protections to the significant habitat framework, neither are the burdens imposed on landowners by priority habitats comparable to those imposed by significant habitats. MESA states simply that “[e]xcept as otherwise provided in this chapter, no person may alter significant habitat.” G. L. c. 131 A, § 2. “A permit [to alter significant habitat] shall be granted only upon a finding by the director that the proposed action will not reduce the viability of the significant habitat to support the endangered or threatened species population involved.” G. L. c. 131A, § 5. By contrast, the priority habitat regulations are designed to facilitate property development, albeit in an environmentally sensitive manner. The project review process can result either in a determination that development will not result in a take, in which case it may proceed unhindered; a determination that a project has the potential to result in a take, in which case mitigating conditions will be imposed on development; or a determination that a project will result in a take, in which case a more rigorous permitting process will be required before development can proceed. See 321 Code Mass. Regs. § 10.18(2).
To be sure, the conditions that may be imposed as part of the review process can restrict land use in certain respects, or even require significant financial expenditure.
b. Directed decision in favor of the division. The petitioners argue that the magistrate’s allowance of the division’s motion
Pursuant to the regulations on informal hearings, all parties have the right to “question or refute any testimony including an opportunity to cross-examine adverse witnesses.”
We have held that this type of procedure does not contravene the requirements of either the Administrative Procedure Act or due process. See Kobrin v. Board of Registration in Med., 444 Mass. 837, 846 (2005) (“neither the statute [G. L. c. 112, § 5, providing for a hearing pursuant to G. L. c. 30A] nor due process required the board to hold a hearing to take evidence concern
Here, the allowance of a directed decision in favor of the division was proper where the magistrate found that the petitioners’ testimony contained “factually unsupported or inadequately supported conclusions, expert-type opinion testimony, lay opinion unsupported by first hand observation, and legal opinion and argument” and presented insufficient evidence that the division deviated from its guidelines in delineating the priority habitat for the eastern box turtle.
The division’s written testimony from its turtle conservation biologist and regulatory review manager, by contrast, stated that the 1991 sighting of a reproductive-aged adult female turtle was consistent with scientific studies documenting movement distances of eastern box turtles in Massachusetts, as well as multiple sightings of such turtles east, northeast, and west of the petitioners’ property, which supported the credibility of the 1991 sighting adjacent to the parcel in question. The observation of a nesting female and hatchlings near the property in 1993 was also noted. The division’s witnesses explained that the regulatory criteria were applied by evaluating radio-tracking studies of eastern box turtles in the Hampden area. Those studies were confirmed by the 1991 occurrence record of the turtle, as well as multiple other occurrence records evincing a local population of turtles in and around the petitioners’ property linked to other priority habitat areas in Hampden by migration, dispersal, and gene flow. The continued suitability of the petitioners’ property as habitat for eastern box turtles was also confirmed when the staff visited the site in 2008.
The petitioners’ written testimony amounted to a set of con-clusory allegations, and no more. They proffered no evidence of any instance where the division improperly applied its regulatory criteria. Thus, the division properly adopted the magistrate’s decision granting a directed decision in favor of the division.
Judgment affirmed.
We acknowledge the amicus briefs of the- Home Builders Association of Massachusetts, Inc.; Economic Development Council of Western Massachusetts and Westmass Area Development Corporation; National Association of Home Builders; and Pacific Legal Foundation on behalf of the petitioners. We also acknowledge the amicus briefs of the Nature Conservancy; Massachusetts Audubon Society, Massachusetts Association of Conservation Commissions, and Conservation Law Foundation; and Defenders of Wildlife and National Wildlife Federation on behalf of the division of fisheries and wildlife (division).
An “endangered species” is defined as “any species of plant or animal in danger of extinction throughout all or a significant portion of its range including, but not limited to, species listed from time to time as ‘endangered’ under the provisions of the Federal Endangered Species Act of 1973, as amended, and species of plants or animals in danger of extirpation, as documented by biological research and inventory.” G. L. c. 131 A, § 1.
A “threatened species” is defined as “any species of plant or animal likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range including, but not limited to, species listed from time to time as ‘threatened’ under the provisions of the Federal Endangered Species Act of 1973, as amended, and any species declining or rare as determined by biological research and inventory and likely to become endangered in the foreseeable future.” Id. A “species of special concern” is defined as “any species of plant or animal which has been documented by biological research and inventory to have suffered a decline that could threaten the species if allowed to continue unchecked or that occurs in such small numbers or with such a restricted distribution or specialized habitat requirements that it could easily become threatened within the commonwealth.” Id.
The habitats of species of special concern are not eligible for designation as significant habitats. See G. L. c. 131 A, § 4.
This expansive definition of “take” tracks the definition in the implement
Certain types of development are exempted from the priority habitat review process. Examples of development exemptions include certain construction of residential dwellings on infill lots; certain acts of repair, maintenance, replacement, or addition; and the normal maintenance and improvement of land in agricultural or aquacultural use, or land adjacent to or in the immediate vicinity of land in agricultural or aquacultural use. See 321 Code Mass. Regs. § 10.14.
It is worth noting, however, that, to date, the division has not designated any area in the Commonwealth as significant habitat. See 321 Code Mass. Regs. § 10.99 (titled “Designated Significant Habitats: Reserved”; containing no entries). By contrast, as the amicus Western Massachusetts Development Counsel notes, 339,840 acres in western Massachusetts alone have been designated priority habitat. It appears that, in practice, all of the division’s habitat management is accomplished through the priority habitat scheme.
For example, such conditions may include conveying open space parcels to the division; granting a recorded conservation restriction over parts of the land to the division; mating payments to a conservation fund; and the construction
The division’s statistics indicate that the majority of projects proposed in priority habitats (seventy-five per cent) proceed without any modification or conditions, after having been determined not to pose a threat to the species in question. Division of Fisheries and Wildlife, Fiscal Year 2009 National Heritage Endangered Species Program Regulatory Review Activity Summary at 4 (2009). Another twenty-two per cent of projects are approved with conditions in order to avoid a take. Id. Only three per cent of projects are determined to pose a threat to species such that a conservation and management permit is required. Id.
The regulations require, in aid of such a safe harbor, that landowners bear the burden of showing that the proposed project or activity will not result in a take. See 321 Code Mass. Regs. § 10.19. Where the proposed project or activity is deemed a “conditional no take” or a “take,” the landowner nonetheless can attain safe harbor by agreeing to the conditions imposed or by obtaining the requisite permit, as applicable. Were the landowner to forsake a safe harbor, however, and forge ahead with the proposed project or activity, that alone would not be tantamount to a proven violation of G. L. c. 131A, § 2. General Laws c. 131A, § 6 (c), the enforcement provision, imposes on the division the burden of proving that a proscribed interference with a State-listed species or its habitat has occurred, and the division acknowledges as much. Were it otherwise, the division, by virtue of burden-shifting implementing regulations, impermissibly would be absolved of its statutory duty to prove the proscribed take, either by a preponderance of the evidence or beyond a reasonable doubt, depending upon the sanction sought.
The priority habitat regulations provide that parties challenging a final decision by the division have the right to an adjudicatory hearing governed by the informal hearing rules of 801 Code Mass. Regs. §§ 1.02-1.03. See 321 Code Mass. Regs. § 10.25(1).
Our decision should not be construed as sanctioning directed decisions before parties have had a reasonable opportunity to depose their opponents or otherwise to engage in appropriate discovery. Here, however, there is no suggestion that the petitioners were thwarted in an attempt to depose the division’s witnesses, nor do they complain or being deprived of other relevant avenues of discovery. The parties agreed to an informal hearing process on an expedited schedule, which included a period of discovery, but it appears from the record that neither party availed itself of this opportunity.
A large portion of the petitioners’ rebuttal testimony is dedicated to rhetorical questions concerning the individual who identified the turtle in 1991, for example:
“So, if [the observer] did not return the turtle to the roadway, what did she do with it? Does anyone at [the division] know? Has anyone at [the division] made even the slightest effort to find out? Did [the observer] leave the [t]urtle on the grounds at Laughing Brook, a most suitable habitat for the turtle? After carrying the [t]urtle illegally to Laughing
*229 Brook, did she carry the [t]urtle illegally to some other appropriate location in the vicinity of Laughing Brook? Did she take it home? Why would she bring the turtle to the [p]roject [s]ite, which according to her observation report, she believed was the location of a planned [thirty-one] unit residential development. Therefore, the [t]urtle was last seen at Laughing Brook, more than three miles from the [p]roject [s]ite.”