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The C.A.S.H. Courier Newsletter
Winter 2012 Issue

Binghamton University's Deer "Cull" Stopped in its Tracks!

How it happened

deer cull binghamton CASHOn November 21st 2011, I received an email from Sidell Gold from Binghamton: I wanted you to know of the planned culling of nearly 200 deer, to take place during student break.

Do you have any info on how to stop it?

Unfortunately, that is not an unusual type of email for us to receive at C.A.S.H. A deer-kill has been planned, arranged for, the necessary rationalizations have been made to the media, and the game agency’s (in this case the NYS DEC) permits are in place. It’s the 11th hour. What do we do now?

The University of Binghamton, a New York State University, had planned to hire Tony DeNicola and his gang of alleged sharpshooters to kill 90% of the deer in a 300 acre “Nature Preserve” that was part of the university’s campus because the deer were eating flowers. The date was set for December 21st when most students would be away on semester break.

A public meeting on that plan was scheduled for December 6th. C.A.S.H.  armed Sidell with all the arguments against the planned killing. We told her about immunocontraception, about the compensatory rebound of deer populations reduced by killing, and the ineffectiveness of the action due to immigration of deer from adjoining areas. She reported back the next day:

“The meeting was unbelievable. The University Vice President would not let me speak. This was not a meeting! Instead, they handed out cards, for questions, and said that they would select which ones they chose to answer.

I did get up and personally ask the Vice President to permit a presentation on birth control. He ignored my request and brushed me aside.

I did get up to ask the speaker if he had done a deer survey or environmental impact study. He had the craziest answer, he said, “We’ll make it up as we go along.”

At this point, we saw no other option but a court injunction to stop the killing –a daunting project given a local court venue, the major employer in the area as defendant, and the NYS Attorney General as their attorney.

There was only one attorney who would have a chance at succeeding: David Bernheim, Esq.  He is a highly experienced litigator in cases that involve animal and environmental protection. He was willing to take on the case. Barbara Stagno, New York State Director of In Defense of Animals, arranged with IDA for the neccesary funding.

Sidell found the best possible local plaintiff to join the suit – a retired professor from Binghamton University whose house adjoined the preserve. He was concerned that the alleged sharpshooters would shoot into his house, or injure or kill members of his family. With him on our side, there could be no challenge regarding our “standing” in the case.
David, Sidell, and I conferred by phone.  I suggested that looking at the requirements imposed by SEQRA (State Environmental Quality Review Act) might impose conditions on the planned action which the University had not followed.

SEQRA requires that before an action is undertaken that requires approval by a government agency, such as a town board, town planning board, or the state environmental conservation agency (in New York State it’s the DEC) – the permitting agency must review the effect of the contemplated action with regard to the quality of the environment.

The first SEQRA decision the agency must make is whether the action is a type-I or type-II action. A type-I action is one that likely has a major impact on the environment (e.g. a proposal to clear cut 90 acres of forest and put up a 75 house development.) A type-II action is one which is not likely to have a major environmental impact (e.g. a homeowner plans to build an extension to his house – adding a bedroom and a bathroom).

If an action is determined to be a type-II action – the SEQRA portion to the permitting process is completed.

If an action is determined to be a type-I action the applicant must file an EIS (Environmental Impact Statement) which has many precisely defined stages with lots of opportunity for public input and requires approval by the permitting agency at each stage. It frequently takes years and hundreds of thousand of dollars in consulting fees to complete an EIS. Declaring an action to be a type-1 action is sometimes tantamount to killing the project.
Each State has its own SEQRA, so what we did here may not apply in other states.

The NY State Environmental code concerning SEQRA states:

§617.7 Determining Significance

(c) Criteria for determining significance.

(1) These criteria are considered indicators of significant adverse impacts on the environment:

(ii) the removal or destruction of large quantities of vegetation or fauna; substantial interference with the movement of any resident or migratory fish or wildlife species; impacts on a significant habitat area; substantial adverse impacts on a threatened or endangered species of animal or plant, or the habitat of such a species; or other significant adverse impacts to natural resources; in short, removal or destruction of large quantities of fauna is to be considered a likely adverse impact on the environment and therefore likely to be a type-I action requiring an EIS.

At the first court hearing, on December17th, David Bernheim succeeded in getting a temporary restraining order. The judge considered there to be sufficient evidence to prohibit the University from proceeding until she had a chance to study the submitted briefs. Then, on December 23rd, State Supreme Court Justice Molly Fitzgerald ruled that the University must first comply with the State Environmental Quality Review Act process before going ahead with the culling.

Judge Fitzgerald held that counter to the arguments advanced by the NY State’s office of the Attorney General and the DEC’s insistence that it could issue a “Nuisance Permit” without an EIS – the action required an EIS. At first, the University gave the impression that they could come up with the EIS in a fairly short time. On January 6th, David Bernheim was informed by Assistant Attorney General Michael Danaher, representing the University, that they would not be able to comply with the SEQR process by the end of January when classes resume, so the deer culling plan was off for now.

WHAT DOES ALL THAT MEAN FOR A FUTURE CASE?

We now have case law in New York State that establishes that deer culls (‘the removal or destruction of large quantities of vegetation or fauna”) are a type-I action under SEQRA which requires a full EIS. Notwithstanding the pleadings of the DEC.

By their own regulation, one criterion for issuing a nuisance permit to kill or trap wildlife is that the applicant can show that killing or trapping wildlife as requested in the application will obviate the existing nuisance. If it can be shown that other animals will likely move into the area to take the place of the animals killed, then the alleged nuisance cannot be solved by the issuance of the permit.

Thanks to the work of David Bernheim, Esq., Sidell Gold, Barbara Stagno of IDA, and C.A.S.H., New York State now has case law established by this decision. In the future, we should have better success in litigating “cull” cases in New York State.
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Peter Muller is VP of C.A.S.H. and designer of the website: www.nocull.org

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