Morrill v. Lujan, Civ. A. No. 92-0216-B-S.

• Decision Date: 28 September 1992
• Docket Number: Civ. A. No. 92-0216-B-S.
• Parties: Joy MORRILL, Plaintiff, v. Manuel LUJAN, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

802 F. Supp. 424

Joy MORRILL, Plaintiff, v. Manuel LUJAN, et al., Defendants.

Civ. A. No. 92-0216-B-S.

United States District Court, S.D. Alabama, S.D.

September 28, 1992.

Henry H. Caddell, Thiry & Caddell, Mobile, Ala., for plaintiff.

Richard A. Horder, Attorney for DeWeese, Kilpatrick & Cody, Atlanta, Ga., Charles Brooks, Dept. of Justice, Environment and Natural Resources Div., Washington, D.C. (John Harrington, Regional Sol., U.S. Fish & Wildlife Service, Atlanta, Ga., Michael Hirsch, Office of Gen. Counsel, Federal Emergency Management Agency, Washington, D.C., of counsel), for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BUTLER, District Judge.

". . . (A)dvice and law are not the same."¹

Like Stuart Little, the little mouse born to human parents in E.B. White's children's classic, the Perdido Key beach mouse faces many of the same perils Stuart did: House cats (Snowbell), domestic mice (Stuart's parents' fears that he would venture down a mouse hole), and the human threat (of having his tail cut off by a farmer's wife with a carving knife). In the end, Stuart did what the endangered Perdido Key Beach mouse did in this case to cause the origins of this litigation, "traveling north until as the Plaintiff contends the end of my days."

FINDINGS OF FACT

When the Perdido Key Beach mouse moved north across Highway 182 at Florida Point on Perdido Key, it ventured out of its federally designated critical habitat of some 88 acres, into an area comprising approximately 75 acres, of which the defendant Dewitt DeWeese owns the westernmost 8.3 acres, or 11% (see Plaintiff's Exhibit 1). DeWeese began construction of a lounge (the first phase of a lounge/restaurant/hotel complex), by leveling half an acre of his land in December of 1990 and the balance of the 8.3 acres in October 1991. When the plaintiff, Joy Morrill, filed her application for a temporary restraining order and preliminary injunction, the defendant consented to a cessation of his operations to allow this matter to be heard by this Court ore tenus on August 27-28, 1992.

The plaintiff, Dr. Joy Morrill, holds a Ph.D. in Marine Biology, specializing in Marine Botany. She resides in Orange Beach, Alabama, only a few miles from Gulf State Park and the DeWeese property. Dr. Morrill visits the park several times a week to gather information for her study of the beach mouse habitat and the process of dune building. According to Dr. Morrill, the beach mouse serves as an inadvertent engineer of dunes by burying seeds for sea oats and other grasses which, in turn, serve as the basis for the formation of dunes.

The thrust of the plaintiff's position is that the development has threatened the continued existence of the Perdido Key Beach mouse, by an actual "taking" of the Perdido Key Beach mouse in violation of Section 9 of the Endangered Species Act, caused by the effect that the development will have on its habitat north of the road, as well as on the critical habitat south of the road, primarily from the increase in the risk of human disturbance and the introduction of house/feral cats and house mice, ultimately threatening the extinction of the species itself.

Against this backdrop one must look to the history of the mouse itself and the area of concern. The Perdido Key Beach mouse is a subspecies of the old field mouse which is found throughout the Southeastern United States in a number of varieties. The Perdido Key Beach mouse once was thought to have occupied much of Perdido Key, a thin barrier key or island separating the Gulf of Mexico from the inland waters of Florida and Alabama bounded on the east by Pensacola Bay in Florida and the west by Perdido Pass in Alabama. The DeWeese property is located on the very northwestern tip of the west end of Perdido Key at Perdido Pass and is north of Highway 182 which runs east and west along the Key. Hurricane Frederic, which struck the Alabama coast at Mobile in September of 1979 is thought to have extirpated the beach mouse from all of its Perdido Key habitat, except the very western tip at Gulf State Park (owned by the State of Alabama) south of Highway 182, sometimes called Florida Point, (even though it is actually in Alabama). In fact, at the time the Perdido Key Beach mouse was Federally listed as endangered (in 1985), the acting regional director of the Fish and Wildlife Service reported that "the Gulf State Park land in Florida Point and south of Highway 182 was the only habitat in Alabama considered suitable for occupation by the Perdido Key Beach mouse. (Plaintiff's Exhibit 60, p. 4)²

The DeWeese property was utilized by the U.S. Army Corps of Engineers as a dredge spoil site from 1968 to 1976 (Plaintiff's Exhibit 64) and when left undisturbed began to develop dunes and grasses making it more likely Perdido Key Beach mouse habitat. Although not a mirror image of the property north of Highway 182, Gulf State Park has the primary dune line on the Gulf beach that is so important to the beach mouse's survival.

When the State of Alabama replaced the Highway 182 bridge at Perdido Pass, it did so north of the then existing Highway 182 bridge and substantially disturbed the southern portion of what is now the DeWeese property with its construction equipment and bridge approaches (See Defendant's Exhibit R), and also by the unexplained appearance of large borrow pits criss-crossing a portion of DeWeese's property.

In 1984 the Alabama State Highway Department commissioned a study by Dr. Dan C. Holliman to determine the presence of the Perdido Key Beach mouse (which was then listed as an Alabama endangered species) north of Highway 182 in the area of the new bridge at Perdido Pass. Dr. Holliman studied the site and reported that in 1982 he had found no beach mice on what is now the DeWeese property; and that when he examined the site in June of 1984 found that it was "not prime beach mouse habitat" and in fact was "of poor quality", and "of no importance to beach mouse", the topography having been "severely altered by sand removal, ditching and erosion." (Defendant's Exhibit E) Although he reports trapping one mature male on June 12th, 1984, it cannot be ascertained whether that was on the DeWeese property or not, and in any event, he finds it of little or no significance due to the poor quality of the habitat.

Holler, to a large degree, confirms that this situation still existed when he visited the area on August 11, 1988 to study the effects of the widening of Highway 182. He found the widening would have "minimal effect" on the beach mouse habitat and "population impacts associated with (the widening) cannot be determined" (Defendant's Exhibit F).

In 1982, Myers had captured 13 beach mice in Gulf State Park south of Highway 182, but none on the eastern end of Perdido Key at the Gulf Islands National Seashore, an area approximately seven miles long on the Florida end of Perdido Key. (Plaintiff's Exhibit 23). A recovery and re-establishment plan was recommended by the Fish and Wildlife Service in August of 1987 (Plaintiff's Exhibit 23). This was implemented between 1986 and 1989 because the Florida Point site in Alabama offered a limited habitat along the primary beach dunes bounded on the west by Perdido Pass and the east by three condominiums; and more significantly "there was no opportunity for immigration of the population into new areas of suitable habitat. Population expansion could only take place in the small areas of marginal habitat lying north of the primary dunes." (Emphasis added). The trial testimony established that the area lying between the primary beach dunes and Highway 182 referred to in Holler's report as the area to the "north of the primary dunes", was south of Highway 182, not north of it where DeWeese's property is located. It was not until the spring of 1988 that Dr. Holler actually trapped the Perdido Key Beach mouse north of Highway 182, but in an area east of the DeWeese property.

The importance of the recovery plan's implementation to the Court's finding is the fact that even though the Gulf State Park habitat was primarily on the waterfront dune line, that the population was thought to be viable enough to actually trap mice and transport them eastward to restock the Gulf Islands National Seashore area at the east end of Perdido Key. Trapping began in April of 1986 and by April of 1987 the Gulf State Park population had shown a "dramatic increase", even though between April of 1986 and April of 1988 fifteen pairs of mice were moved from Gulf State Park to the National Seashore to the east. The existence of these two separate populations "provides some protection against total loss due to storms" (See Plaintiff's Exhibit 60). In addition to furnishing the restocking of mice, Gulf State Park south of Highway 182 has furnished, and continues to furnish, breeding pairs of mice that Dr. Holler and his staff maintain at Auburn University in an effort to uphold and preserve a large enough population of Perdido Key Beach mice that if something causes their wild population to be decimated, they could be restocked from this source. As of April 7th, 1992 some 70% of the captive colony had been killed in the lab (called "sacrificing") rather than reintroducing them in the wild. The survivors are used to continue the breeding stock, with periodic replenishing of the captive population with breeding pairs trapped in the wild. Dr. Holler was asked why there had been no restocking or transferring of mice from either Gulf State Park or Gulf Islands National Seashore to the Perdido Key State Recreational Area (an area about two miles long which is located in the middle of Perdido Key and which is Perdido Key Beach mouse habitat, but has no wild population of beach mice). He said that he had recommended that, but he would need the approval of the Florida Department of Natural Resources, and there would be additional expenditures of monies required for monitoring in addition...