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Baker v. Coxe

ELR Citation: 31 ELR 20243
Nos. No. 99-1843, 230 F.3d 470/(1st Cir., 10/31/2000)

The court affirms a district court decision holding that various state environmental officials' delay in approving a permit to build a pier did not violate the applicants' due process, equal protection, or First Amendment rights. In 1991, the applicants, who own a tree farm on an island off the coast of Massachusetts, applied for a permit to build a pier that would be used to supplement the farm. The U.S. Army Corps of Engineers was ready to grant the permit when environmental groups objected because of the presence of nesting habitat for migratory birds on the island, thereby arousing the state officials' concern about the permit and causing environmental delays. Consequently, the permit was not granted until 1997. The court first holds that despite the delay in the issuance of the permit, the applicants' due process and equal protection rights were not violated. The officials' alleged misconduct—requests for investigations and allegations of federal violations by the applicants—did not result in adverse action against the applicants. Moreover, although the environmental impact review of the applicants' permit application was too broad, the state environmental agency's review effort was not so irrational as to violate the applicants' constitutional rights to due process and equal protection.

The court next holds that the applicants did not demonstrate that the officials violated their First Amendment rights to protected speech. The applicants claimed that the issuance of the permit was delayed in retaliation for the applicants' expression of their political views regarding a proposed environmental law. However, several of the officials could not have retaliated as a matter of law because they never had access to a file that noted the applicants' opposition to the environmental law and, therefore, they could not have known of the alleged catalyst for the retaliatory action. Further, of the officials that knew of the applicants' opposition to the proposed law, the circumstantial evidence of retaliation is insufficient. Even if the applicants had shown a prima facie case of retaliation, the officials offered a satisfactory and unrebutted nonretaliatory reason for their actions: the concern that the permit issuance would facilitate the applicants' tree farming and, thus, harm migratory bird habitat.

Counsel for Appellants
Robert H. D'Auria
Law Offices of Robert H. D'Auria
41 North Rd., Ste. 205, Bedford MA 01730
(781) 275-2900

Counsel for Appellees
James A. Sweeney, Ass't Attorney General
Attorney General's Office
One Ashburton Pl., Boston MA 02108
(617) 727-2200

Before Lynch and Lipez, JJ.