Mine Closed, Lest Snakes Worry

By National Center for Public Policy Research | July 7, 2008 | 8:21pm EDT

(Editor's Note: The following is the 31th of 100 stories regarding government regulation from the book Shattered Dreams, written by the National Center for Public Policy Research. CNSNews.com will publish an additional story each day.)

Jay Montfort's Sour Mountain Realty is a family-owned New York company that has had a tough time with New York State's Department of Environmental Conservation (DEC).

The story begins early in the last decade, when owner Jay Montfort decided to operate a surface mine.

Immediately after he filed the required permit application to the DEC, Montfort found himself bogged down in a complicated and time-consuming process. First, the DEC did not issue its decision within the legally required time frame, and Montfort's permitting costs soared to over $2 million. Then, when the DEC finally approved his application, it suddenly reversed itself, saying that the mine could adversely affect a den of timber rattlesnakes located about 260 feet away from Montfort's property.

Amazingly, state officials were concerned not that the mine would kill or physically harm the rattlesnakes, but that the mine might "worry" them.

Montfort believed the company could operate the mine without harming the rattlesnakes. It built a snake-proof fence around the property to keep the snakes out of harm's way.

This solution was not satisfactory to the DEC, which made Montfort tear down the fence. The DEC claimed that since the fence would prevent snakes from accessing certain snake habitats, the fence as well as the mine violated a unique feature of New York endangered species law that prohibits not only killing or harming species, but also lesser acts such as "disturbing, harrying or worrying" a protected species.

The Pacific Legal Foundation (PLF) unsuccessfully argued in New York's Intermediate Court of Appeals that "disturbing, harrying or worrying" a species is not prohibited under law unless it harms the species. PLF then appealed to New York's highest court to allow the mining project to continue, but the motion was denied. Montfort was unable to operate his mine. Meanwhile, the snakes are sleeping well.

Sources: Pacific Legal Foundation, Ken Gobetz, Carol LaGrasse, "The Property Owner's Experience"

Copyright 2003, National Center for Public Policy Research

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