In Baker vs. Coxe, et. al., a recent decision of the United States Court of Appeals for the First Circuit, a Federal District Court held that even extraordinary review and over-zealousness by government regulators will not result in a constitutional violation. This case will sound familiar to many persons who have applied to the government for permits and have been frustrated by what appears to be arbitrary and prolonged treatment.

The case arose out of the frustration of plaintiffs, named Baker, who applied for a permit to build a pier on Clarks Island in Plymouth Harbor, Massachusetts. The purpose of the pier was to enable equipment to be unloaded onto the island to support the plaintiff's agricultural pursuits, which included a tree farm. That seems environmental enough, doesn't it? The presence of a nesting site for sea birds on the plaintiffs' property and the possible impact of future agricultural activity on it, concerned several officials and employees of environmental regulatory agencies. Thus, the making of a very prolonged dispute which held up the issuance of the permit, and the construction of the pier, for quite some time.

The Bakers alleged that by delaying the pier permitting application, these eight governmental officials violated their civil rights under the United States Civil Rights Act. The Bakers claimed that the regulatory officials violated their rights of due process and equal protection under the law and also their First Amendment rights, by retaliating against them for their exercise of free speech.

In 1996, a Federal Trial Court dismissed the lawsuit and in this appeal, the Court of Appeals affirmed the dismissal finding that the officials did not interfere with the Bakers' Constitutional rights. Rather, the appeals court found that this was a case of " the zealous action of well-intentioned government officials."

The Bakers owned land on this island since 1979. Since 1987 they administered a tree farm. On this area is a major nesting area for a variety of birds including herons and egrets. Clarks Island has the distinction of being one of the largest breeding areas for waterfowl in Massachusetts. The Bakers had allowed the Mahomet Bird Observatory access to their property to conduct observations of birds.

In April 1989 the property was considered by the State Legislature as one of many which would be given the status of "area of critical environmental concern." This status would have restricted the development potential on the property.

According to trial testimony, when the Bakers learned about this, they did some lobbying to avoid having their property included on the list. When they learned that the bird observatory supported the designation, they also revoked their permission for organization to use their property.

In 1991, the Bakers applied for the government permit to build a pier in order to receive equipment in connection with the tree farm operation. The Army Corps was prepared to issue the permit when a reviewer for a wildlife organization received notice of the application. That reviewer believed that the nesting area was close enough to the tree farm operations that it would have a very adverse effect on the wildlife and requested that the Corps hold up the permit until there could be further investigation. The Corps obliged.

In October 1991 that reviewer and others, including representatives of the Army Corps of Engineers, visited the site and noticed that there had been substantial destruction of the area of the important habitat. One of the officials believed that if the area was given an opportunity to re-vegitate the bird wildlife area would revive. The environmentalists wrote subsequent letters to the Army Corps suggesting that the current owners had diminished and perhaps decimated the usefulness of the bird habitat.

There were other challenges including a communication with the Massachusetts Department of Revenue to determine the legitimacy of the tax concessions in light of the destruction of the bird habitat. Other agencies were also called, essentially to determine whether all applicable regulatory laws had been complied with.

As a result, suit number 1 was started in 1996 against one of the regulatory officials complaining that their letters were defamatory. The suit was promptly dismissed.

Next, a wildlife organization convinced the State to conduct a study of the project to determine environmental impacts under a law called the Massachusetts Environmental Policy Act. Though the scope of the project was such that it did not require mandatory review, a review could still be required by the government if good cause for such a review is determined. Once again, the Bakers brought suit in State Court challenging the scope of the Massachusetts law. There was another regulatory hurdle but finally in the Spring of 1997, the permit was granted and the pier was ultimately built.

The Trial Court granted two forms of relief. First, it dismissed the due process and equal protection claims on the basis that the conduct by the regulators was not sufficiently egregious to support that kind of claim. The other counts, concerning an allegation that the delays were in retaliation for the Plaintiffs' opposition to the legislation that would have restricted the use was ultimately found to be without merit and judgment was granted to the regulators. On review, the appeals court concurred on all of these decisions.

The appeals court held that in order to sustain these kinds of constitutional challenges, a plaintiff has to show really horrible conduct on the part of the regulators. A due process claim can only be sustained if a plaintiff can show that conduct shocks the conscience or is legally irrational. And likewise, an equal protection claim can only be sustained if a plaintiff can demonstrate that the conduct is a gross abuse of power, invidious discrimination, or fundamentally unfair. The Court held that even an arbitrary denial of a permit in violation of State law, even when done in bad faith, does not rise to these constitutional levels.

A Court observed that federal relief is only available in "truly horrendous situations." Thus, there is a large difference between misjudgments, wrong-headedness and mistakes of government bureaucrats, and actions that are so overwhelming horrendous that will result in federal punishment. The Court concluded that in extremely malicious orchestrated campaign must be established by the alleged government wrongdoers before their misdeeds will be held to arise to a constitutional level.

Published: November 16, 2000

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Stuart Lieberman, Esq. writes about environmental issues. He was a New Jersey Deputy Attorney General assigned to the State Department of Environmental Protection from 1986 to 1990. Currently he is a shareholder in the environmental law firm of Lieberman & Blecher, P.C., located in Princeton, New Jersey. Stuart can be reached at slieberman@liebermanblecher.com.