FACTS: The appeal involved a rattlesnake den that was 260 feet from the property line of a parcel of real property owned by defendant. Upon learning of the den, defendant informed plaintiff that it intended to construct a snake-proof fence along its property line. Plaintiff informed defendant that if the fence significantly limited the habitat of the identified snakes, it would consider such activity to be violative of N.Y. Envtl. Conserv. Law § 11-0535, a section of the New York Endangered Species Act (NYESA), and 6 N.Y. Comp. Codes R. & Regs. tit. 6, § 182. Defendant nevertheless erected the fence and plaintiff commenced the instant action to permanently enjoin defendant from continuing to use the fence. The trial court granted a preliminary injunction directing removal of the fence. On appeal, defendant asserted that plaintiff did not have the statutory authority under the NYESA to protect the habitat of a threatened or endangered species. The court disagreed in light of the broad language of N.Y. Envtl. Conserv. Law § 11-0103. Plaintiff established the likelihood of success on the merits and showed irreparable harm. The court rejected defendant's taking claim.
CONCLUSION: The order was affirmed because the trial court properly found that the defendant had committed a taking of a threatened species under the New York State Endangered Species Act. The court held that a prohibited taking of a protected species could occur upon the modification of its habitat.
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