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The habitat of endangered species — as well as the animals themselves — is protected under New York’s Endangered Species Act, A New York appellate court held in ruling that a fence may be banned if it curtails the creatures’ habitat. The statutory term “taking” applies to habitat as well as the animals, and limitation of habitat that may harm the species provides enough justification for the State Department of Environmental Conservation to prohibit the fence, the court said. In a per curiam opinion, the Appellate Division, Second Department unanimously affirmed a Dutchess County Supreme Court justice who had refused to issue a preliminary injunction to stop the State Department of Environmental Conservation from requiring a landowner to tear down a 3,500-foot-long, four-foot-high “snake-proof” fence that keeps timber rattlesnakes off its 213-acre property, where it intends to operate a mine. The decision is the first to interpret the state Endangered Species Act, which has been on the books for 28 years, according to Marc Violette, a spokesman for state Attorney General Eliot Spitzer. Lawyers for the property owner said their client had not decided whether to appeal the preliminary injunction denial to the Court of Appeals. The landowner may also choose to go to trial on its request for a permanent injunction. The panel in State of New York v. Sour Mountain Realty Inc., 1999-03232, consisted of Justices David S. Ritter, Thomas R. Sullivan, Gabriel M. Krausman and Gloria Goldstein. The timber rattlesnake has been classified as a threatened species in New York State, the panel said. The fence was erected when the landowner, Sour Mountain Realty Inc., found a rattlesnake den 260 feet from its property line. But the Department of Environmental Conservation said that the fence would disrupt the normal migratory patterns of the rattlesnakes, and cut them off from much of the area where they seek food. The normal radius of the snakes is two and a half to three miles, and the fence would keep them from much of their habitat. State officials ordered Sour Mountain to take down the fence. The Department of Environmental Conservation issued the order under the Endangered Species Act, codified at �11-0535 of the Environmental Conservation Law. State environmental officials took the position that the act, which prohibits “the taking … of any endangered or threatened species,” empowers it to protect the habitat of protected animals and not just the animals themselves. The real estate company went to court to obtain an injunction against the removal order. STATE’S AUTHORITY Justice Judith A. Hillery in March 1999 agreed with State environmental officials and refused to issue an order allowing Sour Mountain to maintain the fence. The Second Department panel affirmed Justice Hillery’s decision, holding that the New York Legislature intended a broad construction of the term “taking” and sought to empower the Department of Environmental Conservation to use its authority to protect habitat. “This is a huge victory for the State,” said Violette, the Attorney General’s spokesman. “It essentially says that the State has the right to regulate activity on private land in order to protect endangered and threatened species.” Violette added that the broad view of State environmental regulatory power was a “critical point” in the interpretation of the Endangered Species Act. Kenneth M. Stenger, of Vergilis, Stenger, Roberts & Pergament, the attorney for the property owner, said that the court’s ruling, while it upholds the Department of Environmental Conservation’s regulatory action for now, clarifies the law that will be in force for a trial on his client’s claim for a permanent injunction against the fence ban. Stenger said that the ruling sets up two criteria, which the State must meet in order to justify its action. “At trial, the State of New York must prove two things: first, that the fence modifies the snakes’ habitat; and second, that [the habitat curtailment] can cause harm to the species,” Stenger said. He said he would ask the trial judge to instruct a jury on such a test. “I think we can win with that clarity,” Stenger said. ‘TAKING’ DEFINED Federal courts, the panel observed, have defined “taking” in the federal Endangered Species Act as including “harm” to the endangered animal, including habitat modification when it has a negative impact. New York’s Endangered Species Act was meant to complement the federal law, the panelists said, adopting the federal courts reasoning in finding that “habitat interference may constitute a taking” under the New York law. The appeals court rejected Sour Mountain’s argument that the state law prohibited only the intentional harming or killing of an endangered species. It said that the statute contains broad language including a prohibition against disturbing endangered species in New York. “We agree with the Supreme Court that the proscribed ‘lesser acts’ logically include habitat modification,” the justices said. Stenger argued that the federal cases relied upon by the Second Department included language that habitat modification, in order to violate the federal Endangered Species Act, must “result in actual injury or death” to members of the threatened species. He said that the New York law should be interpreted the same way. Sour Mountain Realty was also represented by Kenneth C. Gobetz of Wichler & Gobetz in Suffern,N.Y., and Laura Zeisel. Assistant Attorneys General Robert Rosenthal and Christopher A. Amato, of the Environmental Protection Bureau, handled the case for the State. The case drew several amici curiae, including Scenic Hudson Inc., the Scenic Hudson Land Trust, Environmental Advocates and the Environmental Policy Project of Georgetown University Law Center, as well as the New York State Builders Association, New York Farm Bureau, Empire State Forest Products Association and the Pacific Legal Foundation, a libertarian public interest law firm.

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