Reptile reconciliation required by New York

Rattlesnakes Property Protected

The enmity between man and serpent in our culture has gone on for a very long time. Indeed, aside from what herpetologists and young boys may think, snakes are almost universally despised--the serpent has even been used to symbolize Satan himself.

Recent actions by state bureaucrats in New York, however, suggest they do not want this state of affairs to continue much longer. They have actually convinced a trial court to force mankind to embrace the slithering creature by ruling that the state's endangered species law requires private landowners to host rattlesnakes on their property.

Sour Mountain Realty, a family-owned mining company, wants to operate a surface mine on its land on Sour Mountain ridge in the Hudson River Valley. Unfortunately, a den of timber rattlesnakes is located only 260 feet away. The timber rattlesnake is a threatened species under New York's endangered species law, and the state's Department of Environrental Conservation fears that mining operations will hurt the protected rattlesnakes.

Bureaucrats Shred Snake-Proof Fence

To avoid harming the poisonous snakes, and to be able to use its land, Sour Mountain has spent more than $1 million to meet bureaucratic mandates. Recently, Sour Mountain attempted to construct a snake-proof fence around its property to prevent the snakes from slithering onto the premises and harming employees.

State bureaucrats did not like that idea, so they sued Sour Mountain, claiming the existence of the fence violates New York's endangered species law by preventing the rattlesnakes from accessing "snake habitat." The trial court ruled in favor of the bureaucrats and ordered Sour Mountain to tear down the fence.

The reasoning of the state agency and the court went like this: First, New York's endangered species law makes "disturbing, harrying or worrying" a protected species unlawful. Second, if a protected species wants to come onto a parcel of property, that land must be part of its habitat. Third, after waking from its hibernation, encountering a fence while searching for food will worry, disturb, or harry a rattlesnake. Thus, because Sour Mountain's fence prevents timber rattlesnakes from accessing their habitat, the owner is violating the law.

Accordingly, private landowners are effectively required under New York law to host all listed creatures, even dangerous ones like rattlesnakes, on their property.

Of course, no one wants to worry, much less disturb or harry, a rattlesnake. But the implications of the court's interpretation are astounding. Merely walking through a forest or park where a protected species may be found could result in a violation of the law, because it risks crossing the path of a rattlesnake or other endangered animal.

Many wild animals typically avoid humans, so the actual danger of encountering species may be slight-to both man and beast. But a chance encounter might "worry" a rattlesnake into rattling its tail or changing its path. Similarly, endangered birds could be disturbed by a human presence causing them to change their flight paths, be startled into taking flight, or squawk.

And it is hard to fathom the degree of "harrying" to species such as snakes, birds, bugs, and other creatures that could result from a campfire, a sing-along, or merely whistling in the woods.

Is it right that this type of innocent conduct and other reasonable uses of land be considered unlawful? Of course not. That is why Pacific Legal Foundation (PLF) recently invited New York's appellate court to embrace a more sensible interpretation of the state's endangered species law.

If bureaucrats from the State Department of Environmental Conservation insist on preserving endangered species by preventing any use of private property that might disturb or worry them, the state must compensate the landowners. Under U.S. Supreme Court precedent that PLF helped establish, regulations that prevent the economically beneficial use of private property effectively take the land away from the landowner.

Accordingly, the 5th Amendment of the Constitution requires that such property owners be compensated. Likewise, if New York requires private landowners to abandon their property and allow endangered and threatened species to take up residence there, the Constitution requires compensation.

Unless PLF persuades the New York courts to adopt a more reasonable interpretation of the state's endangered species law, New Yorkers will be forced to develop closer relationships with their cold-blooded and very poisonous, neighbors. Moreover, a ruling favoring the bureaucrats will be a dangerous precedent that big-government proponents can use to further limit private property rights in other states.

That is why it is essential that we challenge this type of outlandish bureaucratic action wherever it occurs.

We will continue to fight in the courts to prevent government from punishing private landowners for protecting themselves and others on their property.

Mr. Haddock is an attorney with the Pacific Legal Foundation's environmental aw practice group.

Copyright Human Events Publishing, Inc. Aug 20, 1999
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