Attorneys for the Down Island Golf Club have clashed head-on with top state environmental officials, declaring bluntly that the developers will not comply with the recent cease and desist order in the southern woodlands.
"Our client has informed us that they will not follow the order," wrote Michael E. Scott, an attorney with Nutter McClennen & Fish in Boston, in a Feb. 4 letter to the director of the Natural Heritage and Endangered Species Program (NHESP).
Mr. Scott represents developers Corey Kupersmith and Brian Lafferty.
A spokesman for Natural Heritage said yesterday that if the cutting continues the property owners will face possible criminal prosecution.
"Should we receive reports that cutting has been restarted, we will be obligated to notify the attorney general's office," said Felix Browne, deputy press secretary to state Environmental Affairs Secretary Ellen Roy Herzfelder.
Last month Natural Heritage, which operates under the umbrella of the Executive Office of Environmental Affairs (EOEA), ordered Mr. Kupersmith to immediately halt all tree cutting on the 270 acres he owns in the southern woodlands.
The developers, who have been trying without success to build a private luxury golf course for the last four years, announced in December that they intended to clear-cut the entire property.
At the time Mr. Lafferty said the cutting was part of a plan to harvest wood for agricultural use, although the move carried clear overtones of retaliation as the developers pursue a hostile legal battle against the Martha's Vineyard Commission.
The commission has rejected three golf course plans and one massive housing plan for Mr. Kupersmith's property.
Mr. Lafferty is the chief spokesman for Mr. Kupersmith.
The developers have now clear cut at least two large swaths on the property, including a section of pitch pines in the former Webb's Family Camping Area, and some five acres of scrub oak forest adjacent to Featherstone Center for the Arts.
Natural Heritage issued the cease and desist order Jan. 21. It was the first such order in the history of the agency.
At the time director Tom French said the cutting may have already destroyed many acres of habitat for two moths that are protected under the Massachusetts Environmental Policy Act (MEPA).
The southern woodlands is listed as a priority habitat for the imperial moth, the pine barrens zale moth, the spiny oakworm moth and the faded gray geometer. The imperial moth and the faded gray geometer are threatened species. The pine barrens and spiny oakworm moths are species of special concern.
The southern woodlands is also the last unbroken stretch of oak and pine forest in Oak Bluffs. The 400-acre woodland was designated a district of critical planning concern (DCPC) several years ago and is affected by a long list of special environmental regulations.
Last month Mr. French told Mr. Kupersmith and Mr. Lafferty that before any more cutting can take place, the developers must obtain a conservation permit.
In the Feb. 4 letter, Mr. Scott said the order came as a complete surprise to his clients, and claimed that state officials had told Mr. Lafferty there was no need to apply for a permit.
Mr. Scott also said Natural Heritage has no authority to issue a cease and desist order and he pointed to other priority habitat areas that have been clear-cut or altered, including the Vineyard Golf Club in Edgartown and a swath of forest that was altered by The Nature Conservancy in a controlled burn.
"We believe we are entitled to equal treatment," Mr. Scott wrote.
"We are unable to locate any provision (statutory or regulatory) which provides your office the authority to establish Priority Habitats . . . . It is not without mention that your office has not designated a single Significant Habitat in the 13-year history of the Massachusetts Endangered Species Act," he also wrote. Mr. Scott wrote that a significant habitat designation includes a process where a property owner can ask for compensation, while a priority habitat carries no such right.
Yesterday Mr. Brown responded to each point in the three-page letter.
"Before we did this we consulted with the attorney general's office and we do believe that we have the authority to issue a cease and desist order," he said.
Mr. Browne said Natural Heritage does not want to stop the property owners from using their land, but the agency does want the owners to submit a plan.
"That has been one of our objectives all along - to urge them to approach us with some sort of a cutting plan," he said, adding: "We have never said that they wouldn't be allowed to progress toward an eventual use of the land, and we have never told them that certain activities wouldn't be permitted."
Mr. Brown said the cease and desist order came about after the developers stated their intention in clear public view.
"They announced that their intention and goal was to clear cut the entire 270 acres - and that was a point of some alarm to NHESP - they felt they really needed to know before progressing what the plan was - given the fact that it was priority habitat," Mr. Browne said.
As for the comparison to other properties, Mr. Browne said both the Vineyard Golf Club and the Nature Conservancy vetted their plans with state environmental officials.
The attorney for the developers also claimed that a MEPA permit was never required for the Down Island Club development plan, but Mr. Brown said in fact the project never progressed far enough, because the commission denied the plan.
"The MVC shut it down before we were out of the MEPA process - we didn't require a conservation permit because we never got that far. But there is an extremely good chance that we would have required a conservation permit. It's telling part of the story but not the whole story," he said.
Mr. Browne underscored the singular aspects of the case.
"This is the first cease and desist order that NHESP has ever issue in its history. This is not something that they do lightly or do every day - this is an unusual situation where a property owner could have avoided this quite easily merely by presenting a cutting plan," he said.
As for the accusation about significant habitat, Mr. Browne said the attorney may have misunderstood the definition, which is extreme.
"They are correct we have never designated a significant habitat - it is one step shy of an eminent domain taking and it is indicative of habitat that is of such overwhelming value that in the opinion of NHESP there isn't any other use. It's extremely rare and it's not done lightly because it's joined to the deed," he said.
He said by comparison priority habitat is a middle step.
"Priority habitat is essentially the equivalent of raising a flag to say ‘Okay, there is habitat there that we would like to take a look at before you progress with your plans.' It doesn't mean that you can't progress with your plans - we would just like to be in the loop. As the custodian of endangered species in the state, it is something we would like to know about.
"But the goal has never been to stop you from doing what you want to do. The goal is to stop environmental damage before it is done."