United States Court of Appeals
For the First Circuit
No. 99-1843
JOHN W. BAKER AND SUSAN BAKER,
Plaintiffs, Appellants,
v.
TRUDY COXE, THOMAS W. FRENCH, JAY COPELAND,
PATRICIA A. HUCKERY, BRADFORD G. BLODGET,
JANE W. MEAD, SUSAN F. TIERNEY AND JANET G. McCABE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Robert H. D’Auria for appellants.
James A. Sweeney, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief for appellees.
October 31, 2000
COFFIN, Senior Circuit Judge. This controversy, now
approaching its tenth anniversary, arises out of the frustration
experienced by plaintiffs-appellants, John and Susan Baker, in
applying for a permit to build a pier on Clark's Island in
Plymouth Harbor, Massachusetts. The purpose of the pier was to
enable equipment to be unloaded onto the island to support
plaintiffs' agricultural pursuits, which included a tree farm.
The presence of a nesting site for sea birds on plaintiffs'
property, and the possible impact of future agricultural
activity on it, aroused the concern of defendants-appellees,
eight Massachusetts officials and employees of environmental
regulatory bodies.1
1 Seven of the defendants served at various levels in the
Massachusetts Executive Office of Environmental Affairs (EOEA).
Their names and relative positions are as follows:
(1) Trudy Coxe, Secretary of EOEA, and Susan Tierney, former
Secretary;
(2) Janet McCabe, former Assistant Secretary of EOEA for
Environmental Impact Review;
(3) Bradford Blodget, state ornithologist and employee of
EOEA’s Division of Fisheries and Wildlife;
(4) Thomas French, Director of the Natural Heritage and
Endangered Species Program, a division of Fisheries and
Wildlife;
(5) Jay Copeland, environmental reviewer for Natural
Heritage; and
(6) Patricia Huckery, intern and assistant to Copeland and
subsequently a Wetlands Environmental Reviewer for Natural
Heritage.
The eighth defendant is Jane Mead, Director of the
Massachusetts Office of Coastal Zone Management.
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By delaying the pier permit, defendants are alleged,
pursuant to 42 U.S.C. § 1983, to have infringed plaintiffs' due
process and equal protection rights (Count I) and their First
Amendment rights by retaliating against them for their exercise
of free speech (Count VII).2 The district court dismissed Count
I for failure to state a claim, see Baker v. Coxe, 940 F. Supp.
409 (D. Mass. 1996), and granted summary judgment to defendants
on Count VII, see id., 52 F. Supp 2d. 244 (D. Mass. 1999).
After perusing a tower of volumes of depositions and exhibits,
we conclude, as did the district court, that appellants have not
demonstrated interference with constitutional rights, but have
merely asserted righteous indignation at the zealous actions of
well-intentioned government officials.
Factual Background
We report in suitably labeled groupings the essential
relevant facts.
The Land Involved. The Bakers have owned land on
Clark's Island since 1979. Since 1987, they have administered a
forestry trust in order to operate a tree farm. On this site is
a major nesting area, or heronry, for several varieties of sea
birds, including herons and egrets. At one time, the northern
2 Seven other counts of the complaint asserted pendent
state law claims.
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end of Clark's Island was reported to be among the largest
breeding grounds for waterfowl in the state of Massachusetts.
The Bakers had given the Manomet Bird Observatory access to the
island to conduct studies of the birds.
The ACEC Issue. In April 1989, a bill was considered
for presentation to the Massachusetts Legislature that would
have classified certain tracts of land, including the Bakers'
property, as an Area of Critical Environmental Concern (ACEC).
If so classified, that land would have been subject to use
restrictions and presumably a diminution in value. Realizing
that his land would be subject to such a law, Mr. Baker
telephoned a state senator and "mentioned" that he opposed it.
When the Bakers learned that the Manomet Bird Observatory
supported the ACEC bill, they revoked the permission that had
been granted to enter their land. The ACEC bill did not
progress beyond the drafting stage and was never presented to
the legislature.
The Pier Application. Two years later in May 1991, the
Bakers applied to the Army Corps of Engineers for a permit to
build a pier in order to receive farming equipment for use in
connection with their tree farm. The Corps was prepared to
issue a permit when, in September 1991, Jay Copeland, an
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environmental reviewer for Natural Heritage, received notice
from the Corps of the pending application.
Natural Heritage's Interest. Copeland and his
assistant, Huckery, felt that the nesting area was close enough
to the tree farm operations, which would have been aided by the
pier, to disrupt the heronry and cause the birds to abandon
their nests. Copeland requested that the permit not be issued
until he investigated the pier's possible impact. The Corps
obliged and initiated notice-and-comment proceedings on
September 26, 1991.
Contact with Dr. Parsons. Copeland consulted his
superior, the Director of Natural Heritage, Thomas French, who
had visited the heronry five years earlier with Dr. Katharine
Parsons, an ornithologist who had conducted her doctoral
research on Clark's Island. French advised Copeland to gather
more information from Dr. Parsons. Dr. Parsons told Copeland
that in 1989 she had learned that someone had used a "bush hog"
mower to clear brush and shrubbery on heronry grounds,
destroying many unfledged birds and nests. She also mentioned
Baker’s opposition to the 1989 ACEC legislation and speculated
that the tree farm was not a serious effort but rather a "tax
dodge." Copeland included these remarks in his notes. Not only
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had Copeland taken no position on the ACEC issue, but there was
no evidence that any other defendant had.
Visit to the island. On October 21, 1991, Copeland
visited the heronry with representatives from the U.S.
Environmental Protection Agency, the U.S. Fish and Wildlife
Service and the Army Corps of Engineers, along with the Bakers'
project manager, and Blodget, the state ornithologist. They
found the heronry essentially destroyed, observing large piles
of recently cut brush, abandoned nests, and protective
vegetation coarsely mowed or "bush hogged." But ornithologist
Blodget was of the opinion that, granted an opportunity to re-
vegetate, the heronry would revive. So Copeland felt that
further review was needed and he sought support from Dr.
Parsons.
Dr. Parsons' Letter. Two days later, on October 23,
1991, she wrote a letter at Copeland's behest to underscore the
importance of the heronry. Noting her credentials and prior
research at the heronry site, Dr. Parsons asserted in the letter
that the present owners had "clearly [] diminished and perhaps
decimated" the usefulness of the heronry. Copeland circulated
this letter to other agencies to try to get support for
obtaining an environmental review of the pier permit.
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Contacts with Agencies. At about this time, several
contacts were made with other agencies. Copeland inquired of
the Massachusetts Department of Revenue about the tax status of
the tree farm and sought to discover other ways in which the
Bakers could still qualify for tax concessions. In his
subsequent letter to the Corps of Engineers opposing the pier
permit, Copeland indicated two possibilities: granting a
conservation easement and seeking tax relief for allowing the
land to revert to its natural state. French and Huckery
contacted the Department of Environmental Management to see if
the tree farm was being operated in compliance with the forestry
permit; an inspection later proclaimed the farm in full
compliance. Blodget asked Christopher Dowd, an investigator
with the U.S. Fish and Wildlife Service, to determine whether
the destruction of the heronry in 1989 violated the Migratory
Bird Treaty Act, 16 U.S.C. §§ 703-712 (MBTA), and if so, to
ascertain who was responsible. After some investigation, Dowd
concluded that the information was too stale to justify further
action.
Natural Heritage Files Opposition. On November 8,
1991, Natural Heritage sent a letter to the Corps opposing the
pier permit application on the ground that the pier would
facilitate tree-farming activity, which was likely to contribute
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significantly to the destruction of a major natural resource.
Both the U.S. Environmental Protection Agency and the U.S. Fish
and Wildlife Service sent similar letters.
Plaintiffs Sue Dr. Parsons. Shortly after this, Mr.
Baker sued Dr. Parsons, claiming that her October 23 letter was
defamatory. Eventually, this suit was dismissed as contravening
a law proscribing "strategic litigation against public
participation" (SLAPP). See Baker v. Parsons, No. 93-3212
(Mass. Super. Ct. Jan. 11, 1996) (dismissing suit pursuant to
Mass. Gen. Laws ch. 231, § 59(h), the anti-SLAPP statute).
Issuance of the EIR. The Massachusetts Environmental
Policy Act, Mass. Gen. Laws ch. 30, §§ 61-62 (MEPA), requires
review of all projects larger than a certain size. Although the
size of the pier project did not mandate it, environmental
review could still be had under a "fail safe" provision of MEPA,
if requested by the Secretary of EOEA, by two state agencies, or
by ten citizens. See 301 C.M.R. § 11.03(6). In this case,
after failing to persuade the Secretary or another agency,
Natural Heritage did succeed, in October 1992, in garnering ten
citizens to request review. The Bakers accordingly filed an
Environmental Notification Form on June 25, 1993. On August 9,
EOEA issued a decision requiring the Bakers to take the next
step by filing an Environmental Impact Report (EIR), a
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comprehensive planning document that required an evaluation of
the environmental impact on the heronry not only of the proposed
pier, but also the associated forestry practices.
Lawsuit Challenging the EIR. The Bakers brought suit
against EOEA in Massachusetts Superior Court, challenging the
breadth of the EIR. That court, through Judge Cratsley, limited
the EIR to "how the pier will affect the public interest in the
tidelands across which the pier will be built, and the public
interest in wetlands and water-related resources." Baker v.
Coxe, No. 935795C, 1994 WL 878942, at *3 (Mass. Super. Ct. Dec.
22, 1994). Following this decision, the parties agreed on the
restricted scope of the EIR.
Coastal Zone Management’s Consistency Review. The
remaining hurdle for the Bakers was a federal consistency review
from the Massachusetts Office of Coastal Zone Management.
Defendant Jane Mead was in charge of the review, which was
considerably delayed, apparently because of missing paperwork.
Eventually, in the spring of 1997, the pier permit was granted
and the pier was built.
The district court wrote two opinions. In the first,
it dismissed Count I, holding that the complaint did not allege
conduct egregious enough to invoke either a due process or an
equal protection claim. In the second opinion, the court
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granted summary judgment to defendants on Count VII, which
alleged the pier permit was delayed in retaliation for
plaintiffs' opposition to the ACEC legislation and their lawsuit
against Dr. Parsons. We review these rulings de novo. See,
e.g., Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964
F.2d 32, 39 (1st Cir. 1992) (summary judgment); Coyne v. City of
Somerville, 972 F.2d 440, 442-43 (1st Cir. 1992) (Rule 12(b)(6)
dismissal).
Discussion
A. Substantive Due Process and Equal Protection
In the field of local permits, the nature of the
government conduct (or misconduct) required to establish either
a substantive due process or an equal protection claim is so
similar as to compress the inquiries into one. See PFZ Props.,
Inc. v. Rodriguez, 928 F.2d 28, 32 (1st Cir. 1991) (equating the
standards where the "equal protection claim represent[ed], in
effect, a recharacterization of [the] substantive due process
claim."). In equal protection cases, we have articulated the
need to establish a "gross abuse of power, invidious
discrimination or fundamentally unfair procedures." Creative
Env'ts, Inc. v. Estabrook, 680 F.2d 822, 832 n.9 (1st Cir.
1982); accord PFZ, 928 F.2d at 32. In substantive due process
cases, we have required proof of an "abuse of power that shocks
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the conscience, or action that is legally irrational." PFZ, 928
F.2d at 31-32 (internal quotation marks omitted).
We have held that even an arbitrary denial of a permit
in violation of state law -- even in bad faith -- does not rise
above the constitutional threshold for equal protection and
substantive due process claims. See Nestor Colon, 964 F.2d at
45 (“We have left the door slightly ajar for federal relief
[only] in truly horrendous situations.”). We have thus observed
a marked difference between the inevitable misjudgments,
wrongheadedness, and mistakes of local government bureaucracies
and the utterly unjustified, malignant, and extreme actions of
those who would be parochial potentates.
Plaintiffs alleged that three instances of official
misconduct reveal defendants' shocking abuse of power. The
first occurred when defendants requested the Massachusetts
Department of Revenue and the Plymouth Assessor's Office to
investigate whether plaintiffs' tree farm operation was a tax
dodge. There was never an investigation. The second alleged
abuse occurred when defendants sought to revoke the forestry
permit. Although this did lead to an investigation, the
operations were found to be in full compliance. The third and
most serious allegation was that defendants had reported, albeit
belatedly, possible violations of a federal statute, the MBTA,
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to the U.S. Fish and Wildlife service, which could have
subjected plaintiffs to criminal prosecution. See 16 U.S.C. §
707. However, the accusation was too old to merit further
investigation and the matter was put to rest without further
ado. In fact, none of defendants' three alleged abuses resulted
in adverse action against plaintiffs.
Plaintiffs invoke Rubinovitz v. Rogato, 60 F.3d 906
(1st Cir. 1995), in support of their claims. But the scenario
in Rubinovitz was much more stark. In that case, a city
official was alleged to have engaged in a vendetta against a
landlord who had evicted her friend by enlisting other
government officials from various departments to cut off the
landlord's gas, water, and sewage services, to charge the
landlord with building code violations, and to frustrate
relations with a contractor. See id. at 908-09. Not only did
the spurned tenant's avenger wreak havoc on the landlord in
multiple ways, but there was not the slightest vestige of any
legitimate government purpose served. Rubinovitz, in which we
acknowledged that plaintiff had adduced "only barely enough
evidence" to survive summary judgment, illustrates the extreme
"malicious orchestrated campaign" needed to surmount the
constitutional threshold. Id. at 912. Accordingly, that case
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does not support plaintiffs' more benign treatment as being
actionable.
Although ultimately ruled by the Superior Court to be
beyond the subject matter of the Corps of Engineers permit, the
broad scale MEPA review of plaintiffs' pier application pursued
by defendants was not an irrational undertaking at the time.
The regulation, which governs MEPA review of private projects,
i.e., those that require no agency funding, limits the scope of
an EIR to "include no more than all direct and indirect impacts
from activity necessary to carry out" the project. 301 C.M.R.
§ 11.02 (emphasis added). The reach of such a word as
"indirect" is rubbery enough to invite, initially at least,
varying views.
The authority relied on by the Superior Court was
Villages Dev. Co., Inc. v. Secretary of the Executive Office of
Envtl. Affairs, 410 Mass. 100, 571 N.E.2d 361 (1991), which
involved a large multi-use community development project of some
1066 residential units on 379 acres, including various athletic
and recreational facilities. In that case, a developer sought
a permit to create a new access road to a highway to protect a
bicycle path that crossed the existing access road. The EIR
approved by MEPA gave the Secretary power to review not only the
access road project, but all potential impacts of the entire
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development, including traffic, wetlands, drainage, and waste
disposal. The Supreme Judicial Court ruled that the scope of
the EIR exceeded the indirect impacts that might arise from
granting the permit to build an access road, holding that the
Secretary had authority to review only the access road project,
and its direct and indirect impacts, not the environmental
impact of the developer's entire project. See id. at 113-14,
571 N.E.2d at 369-70. This was a case where a very small tail
was sought to wag a very big dog. In Judge Cratsley's case, the
tail was considerably bigger and the dog considerably smaller.
Although the Superior Court ruling, like the decision on which
it relied, found the EIR too broad, EOEA's review effort in this
case was not irrational so as to violate plaintiffs'
constitutional rights to due process and equal protection. We
therefore hold that the dismissal of Count I was proper.
B. First Amendment Retaliation
The delay of a land use permit in unjustifiable
retaliation for the applicant's expressions of his political
views may violate the First Amendment if plaintiff proves three
elements: that he engaged in protected speech, that he was
qualified for the permit, and that the delay was in retaliation
for the disfavored speech. See Nestor Colon, 964 F.2d at 40-41.
In analyzing this claim, the district court acknowledged that
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only John Baker, not his wife Susan, had engaged in protected
speech and that, but for defendants' opposition, he would have
obtained a permit without delay. Its analysis of plaintiff's
prima facie case therefore concentrated on the third element,
evidence of defendants' motivation.
Of the eight defendants, the court found that the
evidence pointed to only four who had actual or imputed
knowledge of Baker's opposition to the ACEC legislation --
Copeland, Huckery and French of Natural Heritage, and Janet
McCabe, the assistant EOEA secretary who directed the MEPA
review. Defendants Coxe, Tierney, Blodget and Mead could not
have retaliated as a matter of law, the court reasoned, because
none had access to the file in which Copeland noted Baker's
opposition to the ACEC legislation and therefore could not have
known of the alleged catalyst for the retaliatory action.
As to the remaining four defendants, the district court
held the circumstantial evidence of retaliatory motive
insufficient to hurdle summary judgment. The court considered
eleven similar construction projects, none of which had been
subjected to environmental review under MEPA's fail-safe
provision. Plaintiff urged the court to infer illegal motive
from the fact that these comparable permit applications had not
been targeted for review. Of the eleven, however, only four had
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been located near heron colonies, and these were distinguished:
two involved less vulnerable roosteries, not heronries; one had
occurred too long ago to be relevant; and the fourth was
resolved amicably.
The court also commented on the temporal remoteness
between the protected speech and defendants' alleged retaliatory
actions. Two years had elapsed between Baker's 1989 opposition
to ACEC and the process of seeking MEPA review, which did not
commence until 1991. Although the Bakers' suit against Dr.
Parsons may have ratcheted up the acrimony, defendants' review
of the pier was well under way prior to the suit against Dr.
Parsons and therefore could not have been in retaliation for it.
Most significantly, the court not only found
insufficient evidence of illegal motive to satisfy plaintiff's
summary judgment burden, but also ruled in the alternative that
Even if Mr. Baker had sufficiently
established the necessary elements of a
prima facie case, defendants have asserted a
compelling nonretaliatory reason in
rebuttal, one that plaintiff has done little
to counter -- the concern that the project
would facilitate the Bakers’ tree farming
activities . . . . [D]efendants' primary
reason for opposing the Bakers' project was
not the environmental impact of the pier
itself, but [the impact] of the secondary
activities (tree and brush clearing) it
would support.
Baker v. Coxe, 52 F. Supp 2d. at 253.
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We comment briefly on the rulings regarding plaintiff's
failure to make out a prima facie case, although we prefer not
to rest our own decision on them. Regarding defendants'
knowledge of Baker's ACEC opposition, it seems to us a stretch
that all eight defendants shared the knowledge of Baker's
opposition from Copeland's handwritten notes in the file and
cared deeply enough about the issue to retaliate. No defendant,
not even Copeland, had taken a position on the issue.
Postulating such a widespread, concerted effort among officials
from varying levels of different agencies assumes that any
environmental issue, no matter how ancient, would serve as a
lightning rod, galvanizing everyone who worked in the EOEA to
exact his vengeance on remote antagonists.
As for the eleven projects cited by plaintiffs, wholly
apart from the district court's conclusions, we see one
overshadowing difference between them and the Clark's Island
project: only in the latter was there evidence of preexisting
damage to a bird nesting area. The proximity of the heronry to
the tree farm operations and the site of the proposed pier
stimulated Copeland's concern before he had any information
about Baker's views on the ACEC bill. Although the Bakers
disavowed responsibility, the evidence of devastation observed
during the October 21, 1991, visit was unrebutted. To attempt
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to liken this pier project to others presenting no such evidence
of prior damage is to strain at gnats and swallow a camel.
We agree with the court's ruling on motivation. To
draw an inference of differential treatment caused by
retaliation would be unreasonable, particularly in light of
Baker's minimal opposition to the ACEC legislation and the lack
of interest on the part of Copeland and the other defendants.
There is no basis for suspecting any motive other than their
legitimate concern for the Clark's Island heronry for what
involved a lengthy period of substantial effort on the part of
defendants. To reason that spite or revenge could have
motivated everyone from an intern to the Secretary of the EOEA
would indeed be an exercise in attenuation.
But we prefer not to labor on the somewhat technical
elements of the prima facie case. In our view, the dispositive
ruling of the district court was that, even if plaintiff
established the elements of retaliation, defendants proffered a
satisfactory and unrebutted nonretaliatory reason for their
actions: the concern that the project would facilitate the
Bakers' tree farming. Appellant nonetheless takes exception
with the district court's finding that defendants' asserted
nonretaliatory reason was not pretextual. None of the four
claimed errors, however, holds up on examination.
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The first contests that a disputed issue of fact
remains as to whether the Bakers were responsible for the damage
to the heronry. This issue is immaterial because the point is
not who caused the destruction, but that it was damage to the
heronry, not Baker's political views, that first evoked
defendants' concern.
Second, plaintiff makes much of the fact that
defendants' opposition focused mainly on the secondary effects
flowing from the construction of the pier -- clearing vegetation
to accommodate the tree farm -- and not on the pier itself. He
urges us to view the EIR as a thinly disguised attempt to
retaliate. This argument misfires because, although the
defendants' concerns directed at the secondary effects were
determined by Judge Cratsley to be misguided, those concerns
were legitimate and the record is bereft of evidence to support
a conclusion that they were animated by an unconstitutional
motive. After Judge Cratsley's ruling, defendants refrained
from any further effort.
Third, plaintiff asserts that defendants' feigned
concern for the environment was belied by their "smear
campaign," which derided the tree farm as a tax dodge, accused
the Bakers of violating the MBTA, and resulted in a compliance
review of the forestry plan. As we have noted, the "smears"
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were expressions of concern over the debilitated condition of a
salvageable nesting area. Again, the record lacks evidence from
which to conclude that these expressions had an invidious
objective.
Finally, plaintiff contends that the Clark's Island
site was not a unique or a particularly valuable nesting area.
Whether or not the diversity of the bird population made Clark's
Island unique seems beside the point. Defendants' understanding
from Dr. Parsons that a heronry had been decimated was
undisputed.
We therefore conclude that on this record no reasonable
fact finder could find defendants' opposition to the pier permit
application to be in retaliation for Baker's protected speech.
Affirmed.
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