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What Constitutes Harassment of an Endangered Species?

The Appellate Division of the Superior Court of New Jersey recently reviewed a case where the Court had to examine what the State Legislature intended when it made it illegal to “harass” endangered species pursuant to the state's Endangered and Nongame Species Conservation Act (ENSCA).  In New Jersey v. Cullen, the New Jersey Department of Environmental Protection (NJDEP) filed criminal charges against two individuals and a corporation alleging that they “harassed” bald eagles living on Petty’s Island, a 300-acre island located near Camden, New Jersey and owned by Citgo Petroleum Corp.  The Court found that a genuine issue of fact existed as to whether the parties harassed the eagles and remanded the matter to the Trial Court.

At the core of the case was meaning of the term “harass” under the ENSCA.  The term was not defined anywhere in the state statute.  The Court turned to an analogous Federal statute, the Endangered Species Act (ESA), to assist it in its interpretation of the State statute.  In the federal statute, the term “harass” is defined as "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.”  The Court used the federal ESA definition of “harass” and determined that the term “harass” meant an “intentional or negligent act which creates the likelihood of injury to an endangered species by annoying the species to such an extent as to significantly disrupt its normal behavioral patterns.”  The Court then reviewed the facts of case to determine whether Defendants’ actions could constitute harassment under the state statute.

The individual Defendants in the case were contractors hired by the corporate Defendant, which was seeking to redevelop Petty’s Island.  One of the many hindrances to that redevelopment was the fact that eagles nested on the island.  The corporate Defendant hired the individual Defendants to monitor the eagles to determine whether redevelopment was feasible.  The NJDEP charged that the monitoring led to the death of an eaglet and harassment of other eagles in the eaglet’s nest.  The Court found that the individuals Defendants’ actions in monitoring the eagles could have significantly disrupted the eagles’ normal behavioral patterns.  Specifically, the Court found that allegations that the individual Defendants placement of a tent near the nest (which move closer to the nest during a storm), and their multiple visits to the island caused the eaglet to leave the nest prematurely and the other eagles to leave the nest raised a genuine issue of material fact as to whether the Defendants harassed the eagles pursuant to the ENSCA.  The Court concluded that the NJDEP’s “evidence supported a reasonable inference that Cullen and Mohin annoyed the eagles to such an extent so as to significantly disrupt their normal behavioral patterns, thereby creating a likelihood of injury.”  In addition, the Court noted that the corporate Defendant could have vicarious liability since it maintained control over the monitoring activities.  Therefore, the Court remanded the matter to the trial court for further proceedings.

The Appellate Division’s decision in New Jersey v. Cullen is instructive for landowners, developers and contractors, as it elucidates the standard of care that must be exercised when threatened or endangered species are present at a development project site, and the individual and corporate liability that could result if this standard is not met.  At Lieberman & Blecher, we have assisted clients with endangered species matters that arise in the course of real estate, land use and redevelopment matters.  The “harassment” standard is one of many issues that our attorneys will consider when evaluating endangered species concerns in connection with the work we regularly perform for landowners, developers, and non-profit and community organizations.


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