Tuesday, January 5, 2010

Wildlife: what's in a name?

"What's in a name? That which we call a rose
By any other name would smell as sweet."
Romeo and Juliet (II, ii, 1-2), William Shakespeare

In addition to the important holding in Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93 (2009) (lack of sufficient data in a wildlife survey valid basis to deny wetlands permit), referred to in the post of December 31, 2009, the Supreme Court gave us a footnote to ponder, to wit: "We note that, although the plaintiff has framed the issue as a challenge to the commission's authority to deny an application as incomplete on the basis of a lack of a sufficiently detailed inventory of both plant and animal species, the commission's decision refers solely to the absence of information on wildlife. We therefore treat the plaintiff's claim consistent with the actual basis of the commission's decision and principally focus our discussion on the commission's decision and principally focus our discussion on the commission's authority to request information on wildlife." (Emphasis in original.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 95 n.3 (2009). My penciled notes next to the footnote question: "What does Supreme Ct mean since wildlife encompasses both?"

I do use the word "wildlife" differently, depending on the context. When I am engaged in some professional task involving "wildlife" I mean all life, plants and animals. After all, biology includes zoology and botany. But when talking in a lay sense, I use wildlife to mean the animals among us. So, this past summer in the middle of my olympic triathlon (the biking portion) when I was audibly cursing (true) the lack of wildlife as I was struggling up a steep hill, I wasn't bemoaning the lack of diversity in the vegetated understory. I meant: where were the birds and their songs to distract me from the pain of the moment? I meant good-old-fashioned wildlife.

I thought everyone made the distinction between the scientific (plants and animals) and the lay sense (animals only). Not so. I started asking every environmental consultant and DEP staff person I came in contact with. They were split down the middle. The same with the dictionaries in my possession. I consulted Connecticut Wildlife by Dr. Geoffrey Hammerson. He begins the introduction with the definition of wildlife from the Oxford English Dictionary: "the native fauna and flora of a particular region." In the text he explains that he included both plants and animals, not just vertebrates or "charismatic groups." See G. Hammerson, Connecticut Wildlife, (2004), Introduction, p. xiii. Ah, no favoritism to the Bambi-organisms.

In a trial court case the reverse to my differentiation was argued. In River Sound Development, LLC v. Connecticut Fund for the Environment, Superior Court, judicial district of Middlesex, Docket No. CV 04 4000381(November 3, 2004) the plaintiff, wishing to develop the large parcel in Old Saybrook known as the Preserve, argued that CFE's fliers contained false statements when they stated that endangered wildlife species were present on the Preserve's property. The parties agreed that there had been an endangered plant species on the site. The applicant argued that the technical definition of wildlife excluded plants, while CFE argued that the common lay definition included them. The court stated it understood wildlife to include plants.
The Inland Wetlands & Watercourses Act does not define wildlife. There are two references to wildlife in the Act. Both are from the original public act enacted in 1972. One is in the legislative finding, General Statutes § 22a-36, citing that one purpose of the Act is to prevent the loss of "wildlife and vegetation." The other refers to activities permitted as of right, General Statutes § 22a-40(b)(1), the "conservation of . . . vegetation . . . and wildlife . . ." The legislature in 1972 used wildlife to mean just animal life.
When the legislature amended the Act in 2004 to address the AvalonBay case (see the post of December 30, 2009), it did not use the word wildlife. It used language which explicitly included both flora and fauna. Section 22a-41 (c) defines wetlands or watercourses to include "aquatic, plant or animal life in wetlands or watercourses." In the companion section adopted at the same time, section 22a-41 (d) tracks the same language.
After the Supreme Court in Unistar indicated in that early footnote that it would be focusing on animals, it did construe the statutory sections regarding both plant and animal life.

So, did the wetlands agency considering the Unistar application mean an inventory of both plants and animals? Who knows. We have no commonly understood meaning of "wildlife" that transcends our lay/scientific differences, nor agreement among scientists. Add to that the statute provides no definition. The wiser course of action now, whether you are an agency member seeking a wildlife inventory or an applicant presenting one, is to define wildlife or use the language of the 2004 legislature "plant and animal life."

To life! L'chaim!

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