However, it is crucial to first determine whether the protected species actually inhabit and remain in the specified area, she added.

For example, in the case of the Ural owl (pictured), it is not clear whether reporting incidentally hearing the owl's calls in an area, without any sound recordings made, is sufficient evidence for the area to be deemed protected.

A petition submitted to the justice chancellor highlighted the emerging practice of relying solely on alleged auditory data to designate habitats for protected species, including the Ural owl.

This means that a permanent habitat can be established based on claims of having heard the protected bird's calls a few times, even if no nests have been identified.

The petition specifically addressed the Environmental Board's (Keskonnaamet) proposal to establish a 144-hectare permanent Ural owl habitat in Kildemaa, Pärnu County, even as no Ural owl nests have as yet been found on the territory.

The habitat was registered last year, after territorial calls were recorded twice. Similar calls were also heard in the same area in 2022.

Madise stated that the state must collect the required evidence and noted that the situation raises the question of whether property protection for individuals is ensured in such proceedings, and how the legality of the state's actions can be verified afterward.

In a letter to Climate Minister Kristen Michal (Reform) and Director General of the Environmental Board Rainer Vakra, Madise wrote: "A property restriction to protect natural worth can be established if that natural worth is actually located on a person's land."

"If the property is restricted without the state having relevant, reliable, and verifiable evidence of the natural worth's existence, while neither the landowner nor any other person can verify the reason for the restriction, then these being arbitrary and unjustified property restrictions cannot be ruled out," Madise continued.

The Chancellor of Justice added that arbitrary property restrictions are unconstitutional.

She wrote: "The norms of the Constitution which specifically address environmental protection do not allow for unjustified property restrictions in the name of said environmental protection. The Constitution protects various values, all of which are equally important. This means in protecting property, environmental protection must be considered, while when protecting the environment, property protection must be taken into account."

According to the Chancellor of Justice, that it is crucial to protect all known habitats of a first-category protected species, such as the Ural owl, remains without question, and property can be restricted for the sake of protecting natural values.

However, the state must amass the necessary evidence needed to confirm that the species indeed inhabits the area.

"The presence of verifiable and reliable evidence gives assurance to both landowner and the state, since the state must be prepared to purchase privately owned land when restrictions are imposed," the justice chancellor continued.

"If a protected species does not actually reside on the property, such a cost would be unnecessary and unjustified. Moreover, the imposition of property restrictions must be subject to administrative self-regulation and to judicial review," Madise added.

The Chancellor of Justice added that even if collecting evidence is more complex or costly compared to current administrative practices, it ensures the legality of property restrictions. It provides both individuals and the state with confidence that the establishment of a permanent habitat in that location is necessary and appropriate.

Acquiring Kildemaa land would cost over €400,000

Madise stressed that the veracity of data is crucial for several reasons.

"Collecting a range of information from various sources helps avoid situations where information suggesting natural value could be manipulated, thereby creating a picture which is misleading. The state must ensure that even the possibility of such an impression is excluded," she noted.

"Conservation restrictions based on false or manipulated data impose unjust financial obligations on the state and restrict an individual's ability to utilize their land. Additionally, unnecessary conservation restrictions create a distorted view of the extent of protected natural values," Madise added in her communique.

Of the proposed 144-hectare permanent habitat at Kildemaa, 69 hectares lie on private land, and purchasing these cadastral units for the state would cost an estimated €410,000.

According to the Environmental Board's calculations, zoning the restricted area into a special protection zone would result in approximately 30 percent of the potential forest management volume on private land remaining unused, while on state land, managed by the RMK, the figure is estimated at one third of that, or 10 percent.

Madise noted: "If the forest stock came to 203 cubic meters per hectare, the changes would result in an estimated shortfall of €1.7 million in direct and indirect tax revenue in the short term and €3.4 million in uncreated added value for the forest and wood industry," Madise noted.

According to the Chancellor of Justice, the burden of proof for establishing the permanent habitat thus rests with the climate minister as the decision-maker.

When imposing property restrictions via a burdensome administrative act, it is the minister who must be able to demonstrate that the factual conditions necessary for establishing the permanent habitat are present, Madise noted.

Madise added that the minister has an obligation to evaluate the evidence and other circumstances that have been identified in each specific case, when creating a permanent habitat.

"A nesting site must be protected only if there are no fundamental doubts about its presence. Various trustworthy pieces of evidence must be used to establish the facts of the matter. The presence of nests and bird activity can generally be proven via objective information (eg., photos, videos, and recordings with location timestamps)," the Chancellor of Justice continued.

Madise added that, understandably, that evidence may not always be the same for every nesting site. "It cannot be ruled out that in some cases, an audio recording or similar evidence might provide sufficiently convincing proof, rather than a photo," she noted.

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