Inland Pine Barrens of Albany NY

Inland Pine Barrens of Albany NY

==============================================================================
TOPIC: The Inland Pine Barrens of Albany NY
http://groups.google.com/group/entstrees/browse_thread/thread/d6fc5ef1c4d23dfb?hl=en
==============================================================================

== 1 of 1 ==
Date: Wed, Apr 16 2008 1:51 am
From: mtbluegreen@juno.com

Dear ENTS:

I am a "sleeper" on this list: I mainly listen and learn. But an
issue has arisen locally that I think people on this list would be
interested in.

However, here in Albany there is an effort called "Save the Pine Bush"
that has been active for over 30 years. The inland pine barrens here,
which has many rare species enclosed within it, is constantly under
threat of development, as it is located within Albany County in prime
real estate areas. About 3,500 is protected now in a Preserve while
Save the Pine Bush continues to sue every time the city or developers
try to take land.

In a recent case, the Save the Pine Bush group is suing to protect
populations of the Karner Blue Butterfly (endangered) in the town of
Clifton park, where they believe that the environmental review papers
filed by the developer in question are not adequate. In fact, the
developer did not meet the requirements of the law (SEQUA).

In the past, Save the Pine Bush has saved what is left of the Pine
Bush by waging such suits. However, this time, the appellate court
refused them "standing" to have the case heard, because they say that
one must be a direct neighbor of the development in order to file such
a suit.

This is very limiting. There are no direct neighbors in many
instances -- the developers own large tracts of land adjoining Pine
Bush areas. If citizens and environmental groups cannot ask the
courts to make sure environmental review procedure is followed, it
leaves the land at the mercy of short term economics.

Here's where you all come in: Save the Pine Bush is looking for
allies to file friend of court briefs to support an appeal of the last
ruling. The best person to contact is Lynne Jackson at
lynnejackson@mac.com. She and our lawyer Peter Henner, JD will work
with anyone who would like to show support in this way or anyone who
would like more information .

Since there are many people on this list who feel strongly about
endangered ecosystems and many with copious scientific knowledge, I
think that your support would be very helpful. These are Native
trees, though generally speaking, not huge.

Please email Lynne (or me) with any questions.

Concerned about the turn New York State courts are taking,

Grace Nichols

== 2 of 2 ==
Date: Wed, Apr 16 2008 10:12 pm
From: mtbluegreen@juno.com

Ent Friends: I hope this is appropriate. I know that all of you have
strong convictions and good science knowledge, so I'm asking you to
consider writing a brief.

I don't know how you feel about this request, so please let me know.
I hope the information is welcome.

--Grace (Albany Science Teacher)

The formal amicus brief request follows:

PETER HENNER
ATTORNEY AND COUNSELOR AT LAW
P.O. BOX 326
CLARKSVILLE, NEW YORK 12041-0326
(518) 768-8232
Fax: (518) 768-8235
peter@peterhenner.com
WEB SITE: peterhenner.com
*

From: Peter Henner

To: Save the Pine Bush

Re: Amicus talking points

Date: April 16, 2008

Save the Pine Bush will file an appeal from the recent decision of the
Appellate Division, Third Department, holding that an environmental
organization does not have standing to assert its interest in the
preservation and protection of the Karner Blue butterfly. This
decision is part of the now lengthy case law denying standing to
community and environmental organizations that can not demonstrate a
"special harm", i.e. a particular interest different than the public
at large. However, Save the Pine Bush believes that the circumstances
of this case are unique, and that, at the least, it presents an
opportunity either to carve out an exception to the "special harm
rule", and at best, it may be a vehicle to persuade the Court of
Appeals to reexamine its ill considered ruling in Society of Plastics.

Society of Plastics distinguished between "site-specific" projects,
for which a showing of special harm is needed, and "indiscriminate
actions", such as the dumping of garbage in a street, for which a
showing of special harm might not be necessary. However, in the 17
years since Plastics, lower courts have generally applied the special
harm requirement to all cases, regardless of whether or not the
possible adverse environmental impacts would affect everybody.

We will assert three principal arguments in our appeal:

1. The harm in question, the extirpation of an endangered species,
necessarily affects everyone. Therefore, Save the Pine Bush will
maintain that the action cannot be deemed "site-specific," but instead
should be considered "general", and that no showing of special harm
should have been required under Society of Plastics.

2. If a special harm is required, it can be established by Save the
Pine Bush's particular interest in the preservation of the butterfly,
and by the members' interest in viewing it, even if no member owns
property close to the site.

3. Although lower courts, including appellate divisions, are bound by
the Court of Appeals decision in Society of Plastics in the Court of
Appeals decision, the Court of Appeals itself may reconsider its
previous holding. We will ask the court to reconsider Plastics,
because: 1) it has been misinterpreted by lower courts, to impose a
requirement of special harm for all cases, not just site-specific
cases, and 2) the doctrine of special harm derives from the law of
public nuisance, and Plastics erred in applying it to SEQRA cases.

Every environmental organization and community group has an interest
in the success of Save the Pine Bush on any of these three arguments.
If we are successful, it will facilitate SEQRA litigation, and enable
environmentalists to hold government agencies responsible for actions
where the environment has not been properly considered.

==============================================================================
TOPIC: Albany Pine Bush -- Save the Pine Bush defeat
http://groups.google.com/group/entstrees/browse_thread/thread/ae8ef6d7f5926839?hl=en
==============================================================================

== 1 of 1 ==
Date: Sat, Jun 14 2008 11:59 pm
From: mtbluegreen@juno.com

(in response to inquiry by Ed.)
Ed--

This is the sad news about the latest appeal and the refusal to
give Save the Pine Bush standing in court. Dangerous precedents are
being made here.

Save the Pine Bush
Loses in Clifton Park
No one can advocate for the Karner Blue

ALBANY: The NYS Appellate Division dismissed Save the Pine Bush
case's case suing the Town of Clifton Park Planning Board over a
proposed development on Wood Road that is occupied Karner Blue. The
Court said Save the Pine Bush does not have standing or the right to
bring the case to court.

Save the Pine Bush lawyer, Peter Henner, said of the case: "I am
very disappointed by the court's ruling. Although it has become very
difficult for any environmental organization to establish standing, I
was hopeful that the Appellate Division would recognize that the Town
of Clifton Park's approval of the Wood Road development rewarded DCG
for its action in keeping the Department of Environmental Conservation
off the site, while it completed the destruction of Karner Blue
habitat. SEQRA contemplates that the public should have an opportunity
to oppose such an action: however, the court's ruling that standing is
limited to adjacent property owners frustrates the plain legislative
intention of SEQRA and effectively prohibits anyone who is interested
in the preservation of endangered species from challenging
governmental action.

"This decision is a sad day for the environment: although SEQRA
was intended to create a level playing field for environmental
challenges, the court has locked environmental activists out of the
arena.

"Nor was this decision required by the Court of Appeals ruling in
Society of Plastics. Nothing in Plastics required a showing of harm
unique to a particular individual where, as here, the effect is
general. Just as no one should have to show a particular interest in
opposing a governmental plan to allow the dumping of garbage in the
streets, because everyone would be injured, so too, no one should have
to show a unique injury where governmental action ratifies the
destruction of an endangered species' habitat."

Lynne Jackson stated, "Save the Pine Bush is shocked at the
Appellate Division's ruling. This ruling removes the last remaining
teeth from the NYS Environmental Quality Review Act. By not allowing
us into the court room, the Appellate Division has told citizens that
local municipalities are able to ignore the requirements of SEQRA.
Oversite of government actions by citizens has been removed.

"This ruling means that a group of citizens cannot sue over the
actions of a local municipality if the action is a harm to every
member of the public. The loss of an endangered species, the Karner
Blue butterfly, harms all members of the public equally. Thus, since
neither Save the Pine Bush nor the individual plaintiffs in this suit
suffer a harm different than the harm suffered by everyone, we do not
have a right to sue to protect the endangered Karner Blue."

Contact Save the Pine Bush at pinebush@aol.com.

==============================================================================
TOPIC: Fw: The Courts can stop environmental work? Dangerous Save the Pine
Bush Defeat
http://groups.google.com/group/entstrees/browse_thread/thread/b4c8e8e9b12689ff?hl=en
==============================================================================

== 1 of 1 ==
Date: Sat, Jun 28 2008 6:15 pm
From: "Edward Frank"

Sent: Saturday, June 28, 2008 9:10 PM
Subject: The Courts can stop environmental work? Dangerous Save the Pine Bush Defeat

Dear All,

Save the Pine Bush asked the New York State Court of Appeals for leave to
appeal our loss of the Clifton Park standing case.

Save the Pine Bush was denied leave to appeal.

In effect, this means that the court has said that Save the Pine Bush has no
right to sue the Town of Clifton Park to force it to follow the State
Environmental Quality Review Act over a proposed development that would harm
the Karner Blue butterfly.

If Save the Pine Bush does not have the right to sue to protect the Karner
Blue, then, who does?

At this point, it would appear that no one has the right to bring a case to
protect endangered species or an endangered habitat under the State
Environmental Quality Review Act (SEQRA).

If the current SEQRA standing case law had been in effect when Save the Pine
Bush began our litigation in 1978, we never would have been able to put a foot
in court, and there would be no Pine Bush left today.

The only solution to this injustice is to get the New York State legislature to
clarify SEQRA and define who has the right to bring a case to court.

Call your NYS Senator and NYS Assemblyman today and ask them to pass a law to
allow citizens to sue when a municipality does not follow SEQRA.

Sincerely,

Lynne Jackson
Volunteer, Save the Pine Bush

== 2 of 3 ==
Date: Mon, Aug 18 2008 3:52 pm
From: mtbluegreen@juno.com

Hi. I've been off being busy....
I hope to make the Rendezvous this Fall. I wanted to say I really
enjoyed the Adirondack writing posted last post and included on the
website, and I hope the author will publish and let us know it. I had
just been up there and noticed the cotton sedge and an amazing
diversity of lichen, fungi, mosses etc. I'm still overwhelmed by the
beauty of it.

Keep up all the good work. We just had a common council hearing on a
hotel in the Pine Bush here in Albany, and many allies of the pine
barrens are speaking out. That's really good to see.

Merry summer.

Grace

Home