State v. Sour Mountain Realty, Inc.

No. 1999-03232 (714 N.Y.S.2d 78) (N.Y. App. Div. October 2,2000)

ELR Digest

The court holds that the modification of a protected species' habitat may constitute a taking under the New York State Endangered Species Act. Property owners discovered a timber rattlesnake den near their property line and informed the state environmental agency that they intended to build a fence in order to keep the snakes off their property. Although the agency informed them that the fence could violate state environmental laws because the timber rattlesnake is a threatened species in New York, the property owners built the fence. A trial court granted the agency's motion for a preliminary injunction and ordered the property owners to remove the fence. The court first holds that contrary to the property owners' claim, the state environmental agency has the statutory authority to protect the habitat of a threatened or endangered species. The Act's prohibition against "all lesser acts such as disturbing, harrying or worrying" an endangered or threatened species logically includes habitat modification. The court next holds that the trial court properly granted the state environmental agency's motion for a preliminary injunction. Interference with the habitat of a threatened or endangered species may constitute a taking under the Act, and the agency's determination that the placement of a fence constituted a taking of a threatened species was neither arbitrary or capricious. Moreover, violation of the statutory provisions is sufficient to show irreparable harm. Finally, the court holds that the state agency's actions did not constitute a taking of the property owner's property without just compensation.

The full text of this opinion is available from ELR (11 pp., ELR Order No. L-283).

Counsel for Plaintiff
James R. Lee, Attorney General
Attorney General's Office
150 S. Main St., Providence RI 02903
(401) 274-4400

Counsel for Defendants
Anthony C. DiGioia, U.S. Attorney
U.S. Attorney's Office
Westminster Sq., Bldg. 10
10 Dorrance St., 10th Fl., Providence RI 02903
(401) 528-5477

[31 ELR 20167]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]