The C.A.S.H. Courier Newsletter
Winter 2012 Issue
Binghamton University's Deer "Cull"
Stopped in its Tracks!
How
it happened
 On 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.
--------------------------
Peter Muller is VP of C.A.S.H. and designer of the website: www.nocull.org
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