## Facts

- Sour Mountain Realty, Inc. owned an undeveloped 213-acre parcel adjacent to Hudson Highlands State Park.
- A timber rattlesnake den, associated with a species listed as “threatened” under New York law, was located about 260 feet from Sour Mountain’s property line.
- Sour Mountain planned development activities and built a “snake-proof” fence along part of its boundary near the den to prevent snakes from entering its land.
- Before construction, the Department of Environmental Conservation (DEC) warned that the fence could constitute an unlawful “taking” if it modified or diminished the snakes’ habitat.
- Sour Mountain proceeded to construct the fence; the State and DEC sued and sought a preliminary injunction barring use and maintenance of the fence.
- At the injunction hearing, expert testimony stated the fence impeded snake movement and migration, reduced foraging area, disrupted access to basking and escape cover, and increased mortality risk.
- The trial court credited the expert proof and found the State likely to succeed on the claim that the fence constituted a prohibited taking through habitat modification.

## Issues

1. Whether the prohibition on “taking” a threatened species under ECL § 11-0535 reaches habitat modification that harms or threatens the species.
2. Whether the evidence supported the trial court’s finding that the fence constituted such a taking.
3. Whether the State satisfied the requirements for a preliminary injunction (likelihood of success, irreparable harm, and a balance of equities in its favor).

## Decision

- The Appellate Division affirmed the order granting a preliminary injunction.
- The court held that a prohibited “taking” of a threatened or endangered species may occur through habitat modification.
- The court concluded the record supported a finding that the fence modified habitat in a way that harmed or threatened the snakes’ essential behavior and safety.
- The court held the State established likelihood of success, irreparable harm to a threatened species absent relief, and that the public interest outweighed Sour Mountain’s asserted interests pending adjudication.

## Legal Principles

- Under ECL § 11-0535 and implementing regulations, “taking” a protected species may include habitat modification when the modification harms the species or predictably impairs essential behavioral patterns tied to survival.
- Courts may defer to DEC’s reasonable interpretation of the conservation statute it administers, particularly where scientific and technical judgments are involved and the interpretation advances statutory purposes.
- Preliminary injunctive relief requires (1) likelihood of success on the merits, (2) irreparable harm absent an injunction, and (3) a balance of equities favoring the movant; threatened injury to a protected species can satisfy irreparable harm.

## Conclusion

The court interpreted New York’s threatened-species protections to bar not only direct injury to animals but also habitat modifications that harm or threaten them, and it upheld interim injunctive relief based on expert proof that a barrier fence impaired key rattlesnake behaviors and posed a risk to the local population.


State v. Sour Mountain Realty, Inc., 276 A.D.2d 8, 714 N.Y.S.2d 78 (N.Y. App. Div. 2d Dep’t 2000)