Fishkill Ridge
Community Heritage

Rattlers King


Dutchess County Barn For the Times-Herald-Record
September 12, 2004

Rattlers still king in habitat fight
By Wayne A. Hall

Tuxedo – For years, house-tilting slopes, rocky outcroppings and old mines formed a demilitarized zone between humans and threatened timber rattlesnakes. A natural barrier, if you will, between the species. But this land is no longer remote enough. Some of the snakes' quiet spots for basking, roaming and finding a fat mouse are now build able sites, or close to plots targeted for the mid-Hudson's burgeoning development.

It's not a new problem. The rattlers may have been around the mid-Hudson before man, but their reptilian beauty and worth to the ecosystem were only recently embraced. In fact, New York conducted rattlesnake eradication programs, dynamiting dens in the 1940s. As late as 1960, some counties paid a bounty for the snakes.

Defanged by the Endangered Species Act, such outright assault is no longer allowed and is punishable by stiff fines and jail.
Now, state officials, environmentalists and a small cadre of rattlesnake experts are trying to sort out this habitat question:
Who gets first dibs? Rattler or prospective homeowner?

In truth, even though the mild-mannered venomous rattler is protected in New York state against its habitat being destroyed, or in environmental law lingo "taken," the reptile seems to be crawling in uncertain territory. The snake's future in the mid-Hudson, at least, is questionable, given rapid development, and overall dropping numbers of rattlers, says Earl Posada, a federal biologist working with volunteer colleagues on an unofficial 31-state timber rattlesnake report. It's due perhaps next year.

And thereby hangs a business tale with a rattle on it. It's called the Sour Mountain Realty case and it may tip the scales in attempts by developers to assert their property rights. Basically, Sour Mountain Realty put up a snake fence on its Fishkill Ridge rock mine property to prevent rattlesnakes from gliding onto the land – land targeted for dynamite-aided quarry expansion.

In the first real legal test of the New York Endangered Species Act in more than two decades, two courts in 1999 and 2000 upheld the state Department of Environmental Conservation's right to impose the Act on private property. And the judges held that state law was based in sound habitat protection biology.

Score a really big win for the rattlers.
Seeking another victory, environmentalists are hoping the Sour Mountain case will travel well across the Hudson to stop Sterling Forge from building luxury homes right next to the 20,000-acre Sterling Forest state park. Rattlers live near the remaining roughly 200-acre Sterling Forge property. A contemplated 250-acre golf course has already been dropped from plans because of worry about the ecologically valuable snakes.

Can the DEC do anything for developers? The agency is working with them to find mitigations, says DEC reptile specialist Al Breech. "We take it on a case by case basis," he says. That means buffers – elbow room for man and snake.

Sometimes, it works. A notable mitigation attempt, says rattler expert Randy Stechert, was the snake fence erected just above the Brigadoon development in the Town of Woodbury. "Basically, it doesn't work," says Stechert, who patrols the fence and has found many snakes down in or near the development, whose officials have said they think the fence is effective.

Another mitigation step informs homeowners about what to do when they find rattlers on the driveways. Sometimes, that works.

Yet, as everyone tries to protect the snakes, who's protecting the developers, asks Carol Largesse, spokeswoman for the New York branch of the Property Rights Foundation of America. "There should be compensation," she says. For compensation there has to be proof that all the uses of the property have been ruled out. Largesse expects compensation cases to surface as development pressures build. Sour Mountain tried for compensation in an appeal that was dismissed. Company principal Jay Montfort last week said, "I haven't given up," but he wouldn't say where he's headed.

Sterling Forge spokesman Louis Hibachi, who says he's spent "many hundreds of thousands of dollars" on rattlesnake studies, believes that when all is said and done, he'll be able to build because his project won't do more harm than the one or two rattlers killed by traffic right now, perhaps every other year.

Sterling Forge may be the first test of the Sour Mountain decision. The rattler-supporting Sterling Forest Partnership says the group is going to insist that the DEC impose an Endangered Species Act "taking" permit in order for Hibachi to proceed.

That could mean lots of legal action over questions like should Sterling Forge be allowed to build anything. There's not a lot of mitigation state officials could use to offset habitat loss at Sterling Forge, says William Brown, a snake expert working for the partnership who also testified in Sour Mountain.

"They admit loss of habitat and potential injury to snakes, and increased human contact in their environmental impact statement," says Brown. Bottom line, adds lawyer Chris Amato, "they can't build without taking habitat." News to Hibachi, he says. He says his studies just exclude the golf course.

Mont fort tried to offer an alternative route for the rattlers on his ridge. The state judges didn't buy it. Expert testimony from DEC rattler experts, including Brown, showed that the snakes are very loyal to their dens, and to their way of life – and that changes like the fence are habitat subtractions that can't be replaced.

Hibachi wouldn't speculate about his next step, although he's got an out that few other developers enjoy: He could just sell the property to state officials. That would overjoyed environmentalists who want to see the land added to the state park next door.

Or he could fight a long, expensive legal battle, if it comes to that. Or, maybe not. He wouldn't say.

"The good news for [other] developers," says Warren P. Reiss, general counsel for Scenic Hudson, which also had a big role in Sour Mountain, "is there aren't many timber rattlesnakes left in New York state – that's why they're threatened."

Read more on Fishkill Ridge Community Heritage's fight to stop Thalle Mine expansion.

August 30, 2004 update…

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