Saratoga County

Group loses suit to aid butterflies

The state’s highest court has refused to hear a case in which the environmental group Save the Pine
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The state’s highest court has refused to hear a case in which the environmental group Save the Pine Bush sought standing to defend the endangered Karner blue butterfly from a local development plan.

The Court of Appeals in Albany on June 26 refused to hear the case, letting stand lower court rulings that Save the Pine Bush lacked legal standing to sue the Clifton Park Planning Board. The decision ends the legal challenge.

The case involved Planning Board approval of plans by DCG Development of Clifton Park to develop land it owns on Wood Road, where there is Karner blue habitat.

The Court of Appeals let stand a 1991 ruling that people or organizations challenging government decisions under the state Environmental Quality Review Act need to show they are suffering greater harm than the general public.

The town had argued that the earlier decision applied in this case.

“We thought the precedent was clear. It’s been the standard for 17 years,” said Clifton Park Town Attorney Tom McCarthy, who handled the town’s appeals argument.

Save the Pine Bush, however, contended that the decision undermines the SEQR law and endangered species protection in general.

“It means none of the most informed and dedicated advocates for a public trust — the endangered species, the Karner blue butterfly — are allowed to come before the courts of New York state to argue for its protection,” Save the Pine Bush said in a statement.

The case stemmed from a town Planning Board decision in 2006 that approved industrial development on 36 acres on Wood Road. As part of the approval, about an acre was set aside as a managed habitat for the butterfly, which is on the federal endangered species list.

Save the Pine Bush sued under SEQRA, arguing that protection should have been stronger. In court, state Supreme Court Judge Barry Kramer of Schenectady found that group members couldn’t show they suffered any more harm than the general public and denied it standing.

Save the Pine Bush appealed, but in April, the mid-level Appellate Division court sided with the lower court. By refusing to hear an appeal from that ruling, now the Court of Appeals effectively has ruled against the group as well.

McCarthy said the land involved is privately owned and the town Planning Board could only review what was proposed before it, and it included the one-acre habitat area.

“We do feel the Planning Board took a good hard look at the issue,” McCarthy said.

The Karner blue has some of its strongest populations in Saratoga County at places including the Wilton Wildlife Preserve and Park and near the Saratoga County Airport.

The federal Fish and Wildlife Service lists viable Karner blue habitats, and the Clifton Park site isn’t on that list, McCarthy said.

Environmental activist William Engleman of Clifton Park, one of the plaintiffs in the case, said the decision means elimination of the rare butterfly from Clifton Park.

“Town-sponsored surveys of residents and landowners reveal that wildlife habitat has consistently been a top priority for open space protection,” Engleman said. “Yet an animal that has lived in Clifton Park since the end of the last Ice Age is being driven out and extinguished on the watch of the current Town Board and Planning Board for more steel warehouses and truck traffic.”

Town attorneys said the Save the Pine Bush allegations, had they gone to trial, were very broad and not backed by legal evidence.

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