JOHN W. BAKER vs. KATHERINE C. PARSONS & another [Note 1]

CORDY, J. The plaintiff, a property owner in Plymouth, appeals from the decision of a Superior Court judge granting the defendants' special motion to dismiss his lawsuit, pursuant to G.L. c. 231, s. 59H, commonly known as the anti-SLAPP statute [Note 2]. He argues that his complaint is not subject to a special motion to dismiss because it was not based solely on the defendants' petitioning activities, and, in the alternative, that he met his burden under the statute to show that the defendants' activities were devoid of any reasonable factual support or any arguable basis in law. The parties disagree on the standard to be used to determine whether this burden has been met. We transferred the case to this court on our own motion. We conclude that to defeat a special motion to dismiss made pursuant to G. L. c. 231, s. 59H, the non-moving party (the plaintiff here) must show by a preponderance of the evidence that the moving party's petitioning activities were devoid of any reasonable factual support or any arguable basis in law. Because this standard was not met in the present case, we affirm the decision allowing the defendants' special motion to dismiss.

1. Background. Between 1979 and 1991, John W. Baker (Baker) purchased various parcels of land on the northern end of Clark's Island in Plymouth. In 1987, he placed a portion of his acreage in a forestry trust on which he has since operated a tree farm. The defendants, Manomet Bird Observatory [Note 3] and Dr. Katherine C. Parsons, now a senior staff scientist for Manomet, studied bird populations on the island from 1975 to 1989. Manomet had once owned land on the island that was ultimately

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purchased by Baker. Baker allowed Parsons and Manomet to continue using his property for research purposes until he learned that they were seeking to have the island classified as an "area of critical environmental concern," which Baker believed would severely restrict his use of his land. He alleges that his decision to deny access to his property to the defendants "resulted in a smear campaign" by them against him.

In 1991, Baker applied for a license from the Massachusetts Department of Environmental Protection, and for a Federal permit from the United States Army Corps of Engineers (Army corps), to construct a pier on the northern end of his property [Note 4]. In response to his application, the Army corps solicited comment from various agencies including the natural heritage and endangered species program (natural heritage program), a division of the Massachusetts division of fisheries and wildlife, which has as one of its purposes the review of Army corps permit applications. In reviewing the application, Jay Copeland, an environmental reviewer for the natural heritage program, solicited comments from Parsons [Note 5].

The parties disagree about the type of information Parsons was asked to provide. According to Baker, Parsons was asked only to furnish information about the "habitat value" of the north end of Clark's Island; she was not asked to comment on his tree farming operations or on the effect that the proposed pier might have on the habitat. Parsons counters that she was asked to provide information about the island habitat generally so that the natural heritage program would have some context in which to evaluate the pier permit application.

On October 23, 1991, Parsons wrote a letter to Copeland that included the following statements:

"In sum, the Clark's Island site provided unique and rare nesting habitat to several species of colonial birds

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until 1986 when the site changed hands and no longer benefited from protective ownership. The present owner's activities in the heronry clearly have diminished and perhaps decimated a once robust and viable heronry.

"The significance of the site and its value to the state's avifauna cannot be overestimated. Located within a sheltered harbor within easy commute of extensive marshes to the north and south, Clark's Island provides a predator-free habitat not easily replaced.

"Habitat loss is the primary cause of loss in biodiversity at virtually any scale examined. It is my fervent hope that the state and federal agencies charged with protecting the region's natural resources will act to halt the continued degradation of this important site and restore Clark's Island to the prominence it held only recently in providing nesting habitat to aquatic birds. Thank you for this opportunity to comment." (Emphasis added.)

Baker characterizes this letter as containing "defamatory allegations . . . known by Parsons to be false and devoid of any reasonable factual support," and alleges that these statements caused ten citizens to petition the Executive Office of Environmental Affairs to require an environmental impact review of the proposed pier construction [Note 6].

Last, Baker asserts that Parsons, when contacted in 1991 by Christopher Dowd, an officer with the United States Fish and Wildlife Service, falsely accused Baker of destroying heron nests on Memorial Day in 1989 [Note 7], by cutting his grass with a "brush hog," so that Baker would be criminally prosecuted for

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violating the Migratory Bird Treaty Act (MBTA), see 16 U.S.C. s.s. 703-712 (2000), and so that his pier permit application

would be denied. Parsons responds that State officials, believing that Federal laws might have been violated, initially reported the matter to Dowd, thus prompting his contact with Parsons.

2. Procedural history. In June, 1993, Baker brought various claims against the defendants, including a claim for tortious interference with his pier permit application [Note 8]. The defendants unsuccessfully sought summary judgment, asserting that the protection provided by the First Amendment to the United States Constitution to their petitioning activities immunized them from civil liability for injuries alleged by the plaintiff.

While the case was pending, the anti-SLAPP suit statute was enacted by the Legislature and made applicable to pending cases [Note 9]. The defendants then filed a special motion to dismiss, asserting that Baker could not establish that Parsons's actions in providing information to governmental agencies in connection with Baker's pier permit application "were without any basis in fact or law," or that Baker had suffered any actual damages resulting from the defendants' petitioning activity. A judge in

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the Superior Court allowed the motion, concluding that Parsons's statements constituted petitioning activity under the statute, and that Baker "failed to show that Parsons's alleged petitioning activity was devoid of any reasonable factual support or any arguable basis in law." In addition, the judge concluded that Baker failed to show that the defendants' actions caused him real injury. After the defendants' counterclaims were voluntarily dismissed, final judgment entered, dismissing Baker's complaint. Baker took an appeal from the allowance of the special motion to dismiss. We transferred the case here on our own initiative [Note 10].

3. The amenability of this action to the statute. Because the special motion to dismiss was granted in January, 1996, the judge did not have the benefit of our recent decisions addressing various challenges to the anti-SLAPP statute. G. L. c. 231, s. 59H. Baker argues that a review of these decisions, McLarnon v. Jokisch, 431 Mass. 343 (2000) (McLarnon), and Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 160 (1998) (Duracraft), makes it clear that the Superior Court erred in allowing the defendants' special motion to dismiss, because his claims against the defendants contain none of the indicia of a "typical" SLAPP suit. We do not agree.

In essence Baker maintains that because he is not a "developer," but just "an individual operating an environmentally friendly tree farm," while the defendant Manomet is a "wealthy and politically well-connected environmental organization," his lawsuit is not one to which the anti-SLAPP suit procedures of G. L. c. 231, s. 59H, apply. Even if we were to accept these characterizations of the parties as true, this would not, without

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more, foreclose a special motion to dismiss pursuant to the statute. In Duracraft we noted that the "typical mischief that the legislation intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects." Id. at 161. But our review of the legislative history of the statute also led us to conclude that the Legislature intended to go beyond the "typical" case by enacting "very broad protection for petitioning activities." Id. at 162.

In addition to its legislative history, the plain language of the statute, which is not limited in the manner suggested by Baker, squarely encompasses the facts of this case. Parsons, a biologist, responded to inquiries from State and Federal environmental officials, in connection with government agency reviews of Baker's application to develop property by constructing a pier on an island that has historically been a home for many aquatic birds. As a result of her responses, Baker eventually sued Parsons and the nonprofit organization for which she works [Note 11], thus, according to the defendants, "chilling" any further participation by the defendants in assisting State and Federal agencies gathering information on the merits of Baker's application [Note 12].

Baker's claim that the judge should have denied the special motion to dismiss because allowing the motion interfered with his "littoral right to place a pier on his property and/or operate a tree farm . . . a right secured" under the State and Federal Constitutions, is without merit. That Baker had to comply with certain environmental regulations and review processes in order

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to develop his property does not deprive him of any constitutionally protected property rights. See Fragopoulos v. Rent Control Bd. of Cambridge, 408 Mass. 302, 307 (1990), citing Moskow v. Commissioner of Envtl. Mgt., 384 Mass. 530, 532 (1981) ("Consistent with the Constitution, the Commonwealth and its subdivisions may regulate private property in the public interest"); Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 851 (1977), citing Durgin v. Minot, 203 Mass. 26, 28 (1909) ("the enjoyment of private property may be subordinated to reasonable regulations that are essential to the peace, safety, and welfare of the community"). General Laws c. 231, s. 59H, was properly applied to Baker's claims against the defendants.

4. The special motion to dismiss. We review the judge's decision granting the special motion to dismiss to determine whether there was an abuse of discretion or other error of law. McLarnon, supra at 348.

In our first review of G. L. c. 231, s. 59H, we noted: "By protecting one party's exercise of its right of petition . . . the statute impinges on the adverse party's exercise of its right to petition . . . ." Duracraft, supra at 166. In order to safeguard the rights of all parties, we required the special movant seeking the protection of the anti-SLAPP statute "to make a threshold showing through the pleadings and affidavits that the claims against it are 'based on' the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Id. at 167-168.

Although she ruled before our decision in Duracraft, the motion judge evaluated the motion in a manner that demonstrates it met the threshold requirement set forth in that case. The judge writes:

"It is clear that the defendants have been sued for petitioning activity within the scope of the statute. The majority of the statements about which Baker complains are contained in a letter Parsons wrote to Copeland after he telephoned her and asked if she would provide him with some information concerning the 'habitat value of the north end of Clark's Island to aquatic bird species nesting there.' Parsons also talked to [Dowd], an officer of the

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United States Fish and Wildlife Service who asked to talk to her about the destruction of gull nests on Clark's Island. Dowd contacted Parsons after Copeland had informed him about Parsons' discovery of destroyed nests. Parsons communications with Copeland and Dowdfall squarely within the definition of petitioning activity as defined by the statute because they pertained to consideration by governmental agencies of Baker's application to construct a pier" (emphasis added).

This initial showing by the defendants that the claims against them were based on their petitioning activities alone is not defeated by the plaintiff's conclusory assertion that "certain statements made by the [d]efendants [in petitions to government officials] constitute defamation." See Barker, Common-law and Statutory Solutions to the Problem of SLAPPS, 26 Loy. L.A. L. Rev. 395, 402 (1993) (defamation most popular SLAPP cause of action). Baker argues that the "libellous" statements of Parsons in her letter to Copeland were all directed at his tree farming activities on Clark's Island, and his tree farming activities were never under review by the natural heritage program. But, according to Copeland, Parsons was not asked to comment simply on the habitat value of the island, but to give "her impressions . . . about the effect of the activities on the site [Note 13]."

Once the defendants established through pleadings and affidavits that the claims against them were based on petitioning activities and had no substantial basis other than or in addition to those activities, the burden shifted to the nonmoving party to

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show (also by pleadings and affidavits) that "(1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party [Note 14]." G. L. c. 231, s. 59H. See McLamon, supra at 348349. The judge found that Baker failed to meet this burden, reasoning that Parsons, a biologist who had studied bird populations on Clark's Island for many years, and had observed a decline in bird populations following Baker's activities, was not without a factual basis in projecting that an escalation of activities associated with the construction and use of a pier on the north end of the island would adversely affect the bird population [Note 15].

Neither the Legislature nor this court in our cases interpreting the anti-SLAPP statute has indicated what evidentiary standard is to be applied by a judge in weighing conflicting factual allegations in order to determine whether a party has met its burden of showing that an opposing "party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law." G. L. c. 231, s. 59H. The statute provides only that in making this determination, "the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based [Note 16]." Id.

Baker asserts that a summary judgment standard should be employed in this context to decide competing factual allegations.

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He relies on Duracraft, in which we stated that the standard for summary judgment adopted in Protect Our Mountain Env't, Inc. v. District Court, 677 P.2d 1361, 1369 (Colo. 1984) (POME), would be "a likely source" of the standard for evaluating special motions to dismiss in the Massachusetts anti-SLAPP statute. Duracraft, supra at 165 n.16. As even our brief discussion in Duracraft of the POME decision makes clear, however, the Supreme Court of Colorado was discussing a "heightened" summary judgment standard, one requiring multiple considerations. See POME, supra. In contrast, the summary judgment standard that Baker offers would, if applied, essentially nullify the anti-SLAPP statute; it would be a rare case in which a plaintiff was unable to attest that something said by the petitioner was untrue or misleading. If Baker's reasoning is correct, the Legislature would have had no need to devise a "special" procedural mechanism in the first place [Note 17].

The defendants urge the adoption of a different standard: "[I]f despite the [opposition] party's submission, the court can find any factual or legal support for the petitioning activity, the motion 'shall be' allowed. [G. L. c.] 231, s. 59H. The presumption is for dismissal, in contrast to a [rule] 12 (b) (6) motion where the presumption is for denial of the motion to dismiss." (Emphasis in defendants' brief.) The problem with setting forth a presumption for dismissal is the conundrum we addressed in Duracraft, supra at 166: by protecting one party's exercise of its right to petition, the statute impinges on the adverse party's exercise of its own right to petition.

In seeking, as we did in our Duracraft decision, to balance these competing interests, we conclude that the party opposing a special motion to dismiss is required to show by a preponderance of the evidence that the moving party lacked any reason-

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able factual support or any arguable basis in law for its petitioning activity. This standard places the burden on the nonmoving party, as the Legislature intended, but without creating an insurmountable barrier to relief [Note 18], [Note 19]. In the interests of judicial economy, and to prevent the defendants from being unnecessarily subjected to further litigation, we apply this standard to the case at bar, and conclude, for reasons already discussed above, that the plaintiff could not have shown by a preponder-

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ance of evidence that the defendants lacked any reasonable factual support for their petitioning activity [Note 20].

We conclude that there was no abuse of discretion or other error of law in the judge's decision to grant the defendants' special motion to dismiss pursuant to G. L. c. 231, s. 59H.

Judgment affirmed.