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

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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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
2 Seven other counts of the complaint asserted pendent

state law claims.

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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
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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 revegetate, 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.