148 F.3d 1231 (11th Cir. 1998), 97-2083, Loggerhead Turtle v. County Council of Volusia County, Fla.

Docket Nº:97-2083.
Citation:148 F.3d 1231
Party Name:Envtl. , LOGGERHEAD TURTLE (Caretta caretta); Green Turtle (Chelonia mydas), et al., Plaintiffs-Appellants, v. The COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant-Appellee.
Case Date:August 03, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1231

148 F.3d 1231 (11th Cir. 1998)

Envtl. ,

LOGGERHEAD TURTLE (Caretta caretta); Green Turtle (Chelonia

mydas), et al., Plaintiffs-Appellants,

v.

The COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, a political

subdivision of the State of Florida, Defendant-Appellee.

No. 97-2083.

United States Court of Appeals, Eleventh Circuit

August 3, 1998

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Lesley Gay Blackner, New York City, Steven A. Davison, University of Baltimore School of Law, Baltimore, MD, for Plaintiffs-Appellants.

Jeffrey D. Keiner, Frank A. Hamner, Charles W. Sell, G. Robertson Dilg, Gray, Harris & Robinson, P.A., Orlando, FL, Jamie E. Seaman, Asst. County Atty., County of Volusia, Deland, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HATCHETT, Chief Judge, and RONEY and CLARK, Senior Circuit Judges.

HATCHETT, Chief Judge:

The loggerhead sea turtle (Caretta caretta ) and green sea turtle (Chelonia mydas ) with appellants Shirley Reynolds and Rita Alexander (collectively the Turtles) challenge the district court's dismissal of their case brought pursuant to the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544 (1994). They present: (1) an issue of first impression, whether the incidental take permit exception to the ESA's "take" prohibition applies to an activity performed as a purely mitigatory measure upon which the issuing agency conditions the permit; (2) an issue of standing, whether a governmental entity's regulatory control of minimum wildlife protection standards can cause redressable injury to protected wildlife in locations where non-party governmental entities possess supplemental authority to regulate and/or exclusively control enforcement; and (3) an issue of pleading amendment, whether another federally protected sea turtle should have been allowed to join the Turtles as a party. We reverse on all issues and remand for further proceedings.

I. BACKGROUND

In 1978, the United States Fish and Wildlife Service (Service) listed the loggerhead sea turtle as a threatened species and the green sea turtle as an endangered species. See 50 C.F.R. § 17.11(h) (1997). 1 Adjoining

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the Atlantic Ocean for nearly forty miles in northeast Florida, Volusia County's beaches play host to both humans and sea turtles. From north-to-south, its beach communities include Ormond-by-the-Sea, Ormond Beach, Daytona Beach, Daytona Beach Shores, Wilbur-by-the-Sea, Town of Ponce Inlet, City of New Smyrna Beach and Bethune Beach. 2 Female adult sea turtles come ashore in the spring, deposit eggs in the sand and return to the ocean. Months later, when sea turtle hatchlings break out of their shells at night, they instinctively crawl toward the brightest light on the horizon. On an undeveloped beach, the brightest light is the moon's reflection off the surf. On a developed beach, the brightest light can be an inland artificial source.

On June 8, 1995, the Turtles instituted this lawsuit in the United States District Court for the Middle District of Florida under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(A). Seeking declaratory, permanent injunctive and--in a separate, contemporaneously-filed motion--preliminary injunctive relief, the Turtles alleged that appellee County Council of Volusia County, Florida's (Volusia County) "refusal to ban beach driving during sea turtle nesting season and ban beachfront artificial light sources that adversely impact sea turtles" violates the ESA's "take" prohibition, 16 U.S.C. § 1538(a)(1)(B). The Turtles quoted excerpts from their federally-issued recovery plans that "[a]rtificial beachfront lighting from buildings, streetlights, dune crossovers, vehicles and other types of beachfront lighting have been documented in the disorientation (loss of bearings) and misorientation (incorrect orientation) of hatchling turtles" and that "nesting females avoided areas where beachfront lights were the most intense" or "abort[ ] nesting attempts at a greater frequency in lighted areas." (Quoting United States Fish & Wildlife Serv., Dep't of the Interior; Nat'l Marine Fisheries Serv., Dep't of Commerce, Recovery Plan for U.S. Population of Loggerhead Turtle (Caretta caretta ) (1991), at 6-7; United States Fish & Wildlife Serv., Dep't of the Interior; Nat'l Marine Fisheries Serv., Dep't of Commerce, Recovery Plan for U.S. Population of Atlantic Green Turtle (Chelonia mydas ) (1991), at 4-5.) As exhibits, the Turtles advanced reports of fatal "disorientations" and "misorientations," as well as "false crawls" (aborted nesting attempts) that volunteer "Turtle Patrol" members had witnessed throughout Volusia County.

Volusia County's initial response to the complaint was twofold. First, on July 12, 1995, it answered the complaint. Second, on July 16, 1995, it applied to the Service for an "interim" incidental take permit. See 16 U.S.C. § 1539(a). After a hearing, the district court granted in part the Turtles' motion for a preliminary injunction as to beach driving, but denied preliminary relief as to artificial beachfront lighting. See Loggerhead Turtle v. County Council of Volusia County, Fla., 896 F.Supp. 1170, 1178-83 (M.D.Fla.1995). 3

In September 1995, the district court entered a pretrial order that: (1) set a deadline of November 1, 1995, for the parties to file motions to amend and add parties; (2) closed discovery on February 1, 1996; and (3) scheduled trial for April 1996. On October 27, 1995, the Turtles filed a motion for leave to amend their original complaint to add the leatherback sea turtle (Dermochelys coriacea)-

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) as a party, attaching the proposed amended complaint and two exhibits to the motion. During the pendency of the Turtles' motion for leave to amend, Volusia County successfully moved to continue the trial until October 1996, citing the imminence of the Service's permit decision.

Prior to the close of discovery, Volusia County moved for partial summary judgment. The county argued that the Turtles lacked standing to assert claims for takes in non-party municipalities that regulate and enforce their own lighting restrictions. On July 9, 1996, the district court granted the motion, concluding that: (1) the Turtles failed to show any causal connection between Volusia County's regulatory acts and the alleged takes; and (2) the court lacked the power to redress the alleged injury without joinder of those municipalities as defendants.

In the same order, the district court denied the Turtles' motion for leave to amend, reasoning that: (1) the court lacked subject matter jurisdiction over the leatherback sea turtle since it was unable to locate a copy of the Turtles' notice of intent to sue letter that their motion referenced; (2) the Turtles unduly delayed in filing the motion; and (3) Volusia County would be prejudiced if the court extended the preliminary injunction to include the leatherback sea turtle whose nesting season starts earlier every spring.

After Volusia County obtained another trial continuance, the Service issued the county an incidental take permit on November 21, 1996. The next day, Volusia County moved the district court to dissolve the preliminary injunction and dismiss the Turtles' case, contending that the permit mooted further proceedings. Although conceding that the permit authorized incidental takes through beach driving, the Turtles contended that it did not authorize incidental takes through artificial beachfront lighting. The district court agreed with Volusia County and closed the case. This appeal follows.

II. ISSUES

We address three issues: (1) whether the district court erred in concluding that Volusia County's incidental take permit excepted it from liability for taking protected sea turtles through artificial beachfront lighting; (2) whether the district court erred in concluding that the Turtles lack standing to sue Volusia County for takes that occur in the non-party municipalities of Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach that have supplemental authority to regulate and/or independently enforce their own artificial beachfront lighting restrictions; and (3) whether the district court abused its discretion in denying the Turtles' motion for leave to amend their original complaint to include the leatherback sea turtle as a party. Our standard of review for the first two issues is de novo. See Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Engineers, 87 F.3d 1242, 1246 (11th Cir.1996) ("We review questions of law de novo [.]"); Engineering Contractors Ass'n of South Fla. v. Metropolitan Dade County, 122 F.3d 895, 903 (11th Cir.1997) ("[T]his Court reviews standing de novo."), cert. denied, --- U.S. ----, 118 S.Ct. 1186, --- L.Ed.2d ---- (1998); Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1404 (11th Cir.1994) ("A district court's decision to grant or deny leave to amend is reviewed for abuse of discretion."), cert. denied, 513 U.S. 1113, 115 S.Ct. 906, 130 L.Ed.2d 788 (1995).

III. CONTENTIONS

As to the first issue, the Turtles contend that Volusia County's incidental take permit authorizes only incidental takes of sea turtles from beach driving, not from artificial beachfront lighting. The Turtles argue that to fall within the incidental take permit exception to the "take" prohibition, the Service's permission must be express and activity-specific. The Turtles also assert that the district court could not infer such permission from the Service's conditioning the permit on lighting-related mitigatory measures.

Volusia County responds that under the permit, it must survey every light source, study their impacts and implement methods to correct light sources that misorient sea turtles. Volusia County argues that given those extensive mitigatory...

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