Keep Snakes Free From Psychological Stress

Last March, a New York business owner got into some big legal trouble for trying to keep bothersome rattlesnakes from entering his business premises. His family owns a quarry and rattlesnakes liked to visit the quarry. To keep them out, he did what any reasonable person would do. He erected a waste high fence around the property.

Mind you, he did not stomp on, club, or shoot the creatures. Nor, apparently, did he evict the snakes from his property, which really doesn't sound so terrible either. All he reportedly did was prevent the snakes from entering his property by erecting a small, harmless fence.

Smart idea, right? Not if you live in New York. That State, just as does the federal government and many other states, has an Endangered Species Act which prevents people from taking almost any action which might be deemed to be ever so offensive to species listed as "endangered" or "threatened." This species of snake was so listed.

Concerned that the snakes might suffer "psychological stress" because the fence blocked access to areas that they have become accustomed to visiting, New York State officials have ordered that the fence be taken down. In fact, New York went to Court to make sure that this snake unfriendly fence comes down, which means that the quarry workers cannot do anything to safeguard themselves from the snakes. After all, people are not endangered species in New York.

Nationwide: Many Projects Have Been Affected

While this might appear to be ludicrous, it is not isolated. Nationwide, property developers and owners have had to dramatically alter their plans in order to conform with similar state and federal laws. A common scenario is that a developer purchases a large parcel, perhaps an old farm, so that he can construct new homes. He needs to build a minimum number of homes for the project to become cost effective. During construction, someone encounters, or thinks he has encountered, a small endangered frog, owl, or a special butterfly, by way of example.

Once the government learns of the alleged blessed discovery, much of the project is often placed on hold. You see, it is then not enough to protect that particular bird, frog or butterfly; every such animal that is or might be located on the property must likewise be protected.

This means that the developer must painstakingly search out every single endangered frog, or whatever. Expensive consultants must be called in to searchfor these animals (or plants). This is a real problem because often the encountered animal came from somewhere else and was just visiting when spotted, or once lived on the property but has since moved on.

Following months or years of delay, and inconclusive studies, the developer's plans frequently must be scaled down so that substantially fewer units can be constructed. In some cases, entire projects have been blocked. And when all is said and done, it is frequently not even clear that what someone thought they spotted in the first place was the protected species in question (some unprotected frogs closely resemble their protected cousins).

How the Endangers Species Act Works

Under the federal Endangered Species Act (and most state laws), a species receives federal protection once it is listed as either threatened or endangered. An endangered species is actually facing extinction. A threatened species may in the near future face extinction.

The listing process follows strict administrative procedures, which are referred to as "rulemaking." The government can initiate this process, as can also a private party. A determination is based on the best "scientific and commercial data available." The process often involves court-like hearings to determine whether this standard has been satisfied.

Once a species is listed, it becomes protected. Under federal law, protection means that no one can or attempt to harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect such listed species. In addition, habitats that are determined to be critical to protect these species are also entitled to protection.

So the Act can have far reaching consequences. Not only are truly endangered species protected, but so are species which may some day become endangered. And not only are the species protected, but so are their habitats. And sometimes habitats can eat up much or all of a proposed development. This is serious stuff.

The Endangered Species Laws Are Not All Bad

There have been many important success stories associated with the federal law. Eagles, falcons, certain bears, turtles and fish, have all been protected from extinction due to this law. In fact, there are many valuable aspects to all of these state and federal endangered species laws. The laws become problematic when they are enforced in an arbitrary manner. Such as, for example, when a property owner is prevented from keeping dangerous rattlesnakes off his property to preserve the snake's "psychological health." Nationwide, there have been many allegations of similar abuse.

Yes, butterflies should be free to fly, "fly away." But official common sense should never fly away. And in the final analysis, many of these cases require nothing more or less than a good dose of common sense.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.