Pleading the Fifth on the Fourth?

Less than two weeks before the nation's 250th birthday, Plum Island property owners, including Marc Sarkady, received letters from the Town of Newbury warning that flying American flags and patriotic banners on their own property could violate state and federal endangered species law. This week, Pacific Legal Foundation sent a letter to the town demanding it clarify whether residents face legal liability for celebrating Independence Day on their own land. Maybe they could claim they never got the notice?

The town's notice identified flags, mylar streamers, and reflective materials as potential violations of the Massachusetts and federal Endangered Species Acts for discouraging Piping Plovers and Least Terns from using habitat on Plum Island's beach and dune system.  

With large areas of the beach already off limits to humans due to the plight of the plovers, a little display of patriotism seemed like a last safe refuge...

"Americans have been flying flags and hanging bunting to celebrate Independence Day for 250 years. The idea that doing so on your own property could now trigger liability under wildlife law would have been unthinkable to the Founding Fathers. It should be unthinkable today," said Mark Miller, director of Environment and Natural Resources Litigation at Pacific Legal Foundation.

PLF's letter argues that no court has ever found a homeowner liable under either law for displaying decorative items on private property, and demands the town identify any legal authority supporting its position. Americans living near protected habitat retain the right to use and enjoy their land, as well as their right to free speech.

“Flying the red, white, and blue on the Fourth of July is as American as apple pie. For Massachusetts local officials to claim otherwise violates both the First and Fifth Amendments to the United States Constitution,” Miller said. “As Massachusetts Founding Father John Adams famously said, ‘property must be secured, or liberty cannot exist.’”

PLF's Environment and Natural Resources practice exists to protect the rights of property owners to steward and enjoy their land — even when government agencies invoke environmental law to prevent it.

Pacific Legal Foundation said it is representing Sarkady free of charge.