Loggerhead Turtle v. Volusia County Council

• Decision Date: 01 August 1995
• Docket Number: No. 95-587-Civ-Orl-22.,95-587-Civ-Orl-22.
• Parties: LOGGERHEAD TURTLE (Caretta caretta), Green Turtle (Chelonia mydas), Shirley Reynolds and Rita Alexander, Plaintiffs, v. The COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant.
• Court: U.S. District Court — Middle District of Florida

896 F. Supp. 1170

LOGGERHEAD TURTLE (Caretta caretta), Green Turtle (Chelonia mydas), Shirley Reynolds and Rita Alexander, Plaintiffs, v. The COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant.

No. 95-587-Civ-Orl-22.

United States District Court, M.D. Florida, Orlando Division.

August 1, 1995.

COPYRIGHT MATERIAL OMITTED

Lesley Gay Blackner, Penland & Block, P.A., Jacksonville, FL, for plaintiffs.

Jeffrey D. Keiner, John A. Kirst, Jr., Gray, Harris & Robinson, P.A., Orlando, FL, for defendant.

ORDER

CONWAY, District Judge.

This cause comes before the Court on Plaintiffs' Motion for Preliminary Injunction (Dkt. 2), Defendant's Emergency Motion to Strike Or, in the Alternative, Objections to Plaintiffs' Supplemental Exhibits (Dkt. 31), Defendant's Emergency Motion For Leave to File Supplemental Exhibits as to the Issue of Standing (Dkt. 35), and Defendant's Emergency Motion for Leave to File Its Request for Judicial Notice of the Volusia County Home Rule Charter (Dkt. 37).

The Plaintiffs are suing the Defendant County Council of Volusia County ("Volusia County") under the citizen suit provision of the Endangered Species Act, 16 U.S.C. § 1540(g)(1)(A), for violating 16 U.S.C. § 1538(a)(1)(B), which prohibits the "taking" of a federally listed endangered species without a permit from the United States Fish and Wildlife Service. The Plaintiffs claim that Volusia County's beach-related ordinances regarding lighting and vehicular access pose an immediate danger to Loggerhead sea turtles and Green sea turtles, and that this threat of future injury necessitates a preliminary injunction to stop any unlawful taking.

After considering the arguments and exhibits submitted by the parties, the Court concludes that the Plaintiff's motion must be granted in part and denied in part, as explained below.

I. INTRODUCTION

The U.S. Fish and Wildlife Service has declared that the Loggerhead sea turtle is a "threatened" species. See 50 C.F.R. § 17.11. The Service also lists the Green sea turtle as "endangered" for the "breeding colony populations in Florida" See 50 C.F.R. § 17.11. Both of these species of sea turtle may be found generally in the tropical and temperate waters of the Earth's oceans.

Volusia County is located in northeast Florida and has some forty miles of coastline abutting the Atlantic Ocean. Both the Loggerhead and Green sea turtles are known to inhabit the Atlantic Ocean waters off of Florida, and come ashore onto the Florida beaches, including Volusia County beaches, to nest and lay their eggs. The U.S. Fish and Wildlife Service has not listed Volusia County as a critical habitat for either species of sea turtle.¹

A. Nesting Behavior of the Loggerhead and Green Sea Turtles

The nesting season in Florida for Loggerhead and Green sea turtles begins May 1st and continues until October 31st. During these months the adult female sea turtles come ashore at night to lay their eggs. On the shores of Volusia County's beaches, the sea turtles dig their nests and lay their eggs on the seaward edge of the dunes. The dunes form the western border of the beach, stretching parallel to the shoreline.

After choosing a spot for the nest, the adult female sea turtle digs a shallow cavity in the sand, and lays dozens of eggs into this cavity. The mother sea turtle then covers the eggs with sand and returns to the sea. The adult female Loggerhead and Green sea turtles do not have the maternal instinct to tend or return to their eggs once they have been laid.

In Florida Loggerhead and Green sea turtle eggs incubate for almost two months. After the incubation period, the sea turtle hatchlings break out of their shells. The hatchlings emerge from their sand nest during the night, when they sense the decrease in the temperature of the sand.

For the sea turtle hatchlings to survive they must reach the sea soon after emerging from their nest. Under natural conditions, turtle hatchlings escape from the nest, orient themselves toward the sea, and reach the surf within several minutes. The turtle hatchlings instinctively orient themselves seaward by crawling toward the reflection of the night sky off the ocean waters and surf. Experts have concluded that "the principal component of the sea-finding behavior of emergent hatchlings is a visual response to light." See National Marine Fisheries Service and U.S. Fish and Wildlife Service, "Recovery Plan for U.S. Population of Green Sea Turtle." National Marine Fisheries Service, Washington, D.C., p. 6 (1991); National Marine Fisheries Service and U.S. Fish and Wildlife Service, "Recovery Plan for U.S. Population of Loggerhead Sea Turtle." National Marine Fisheries Service, Washington, D.C., p. 8 (1991). Failure to reach the sea quickly greatly increases the likelihood that death will result due to exhaustion, dehydration, or predation from crabs or birds.

B. Volusia County's Beach-related Ordinances

1. Artificial beachfront lighting

Volusia County has enacted a lighting ordinance to regulate public street lights and artificial private lighting along the unincorporated beach areas and in the coastal town of Ponce Inlet. Pursuant to Volusia County ordinance, certain beachfront municipalities, such as Daytona Beach and Daytona Beach Shores, are permitted and have undertaken the responsibility of enforcing their own lighting ordinance for public street lights and private beachfront lighting.²

Volusia County claims that its lighting ordinance was designed to limit interference and misorientation among sea turtles during nesting season. The evidence indicates that Volusia County has worked with the local power company to enforce the County's lighting ordinance when known violations are brought to the County's attention. The evidence suggests that Volusia County has installed or is in the process of installing special light fixtures for its street and beach lights in order to minimize the amount of illumination cast onto the beach which is harmful to sea turtle nesting behavior. The Plaintiff's expert, however, disputes the sufficiency of the County's efforts and the effectiveness of its lighting ordinance in reducing disorientation among sea turtles.

2. Driving motor vehicles upon the beach

Volusia County is empowered by the State of Florida to regulate vehicular access to the County's coastal beaches. See Fla.Stat.Ann. § 161.58 (West 1990). Volusia County permits vehicles to drive on its beaches, and through its Beach Code the County regulates the time and circumstances under which vehicles are permitted on the beach. Pursuant to the County's Beach Code, vehicles are generally permitted to drive on the beaches from one hour before sunrise until one hour after sunrise. Volusia County has modified these times between the dates of May 1st and October 31st to accommodate sea turtle nesting season. From May 1st through June 30th, vehicular access is permitted from 7 a.m. until 8 p.m., and from July 1st through October 31st such access is permitted from 8 a.m. to 7 p.m. Evidence submitted by the Plaintiffs, however, strongly suggests that Volusia County has opened the vehicle gates or permitted private vehicles access to the beaches at earlier hours during the sea turtle nesting season.

In addition to permitting daytime traffic on the beach, Volusia County allows vehicles to park on the beaches until midnight. Volusia County also issues special permits to commercial fishermen, who then have authorization to drive upon the beach at night. Volusia County also authorizes public safety, beach ranger, and turtle patrol vehicles to drive on the beaches at night. It appears from the evidence that Volusia County is using or is in the process of acquiring for these county vehicles special yellow headlights in order to avoid disorienting sea turtles.

Volusia County's Beach Code also establishes and regulates the driving lanes and parking areas on the beach. The Beach Code provides for two lanes of traffic, one northbound and one southbound. The western edge of the southbound lane is set at the mean daily high tide line. The Beach Code establishes the parking zone as the area extending thirty feet west (landward) of the mean daily high tide line.

As part of its Beach Code, Volusia County has adopted a "conservation zone," which extends seaward from the dunes for a distance of thirty feet. This "conservation zone" stretches the entire length of the coastline beach under Volusia County's jurisdiction. The dunes, and thus the "conservation zone," are a variable distance from the ocean waters at different sections of the Volusia County beaches. Driving is not permitted in the dunes. Volusia County permits vehicles to park up to fifteen feet into the "conservation zone" from the seaward side. The evidence before the Court strongly suggests that the conservation zone is not adequately marked to prevent private vehicles from parking and driving within the whole of the "conservation zone." More significantly, evidence submitted by the Plaintiffs indicates that private vehicles regularly drive and park within the entire "conservation zone."

Periods of high tide pose a major problem for maintaining the sanctity of this "conservation zone." At high tide, beach traffic is forced away from the ocean and further up the beach into the conservation zone. As a result, vehicles encroach upon the conservation zone both for driving and parking. Volusia County's Beach Director has the authority to close the beaches to vehicle traffic during high tide, or to regulate beach traffic as appropriate. Nevertheless, the evidence before the Court strongly suggests that this authority has not been exercised to prevent driving and parking within the prohibited areas of the "conservation zone."

C. Problems associated with beach driving and artificial beachfront illumination

1. Artificial beachfront illumination

Artificial beachfront lighting significantly increases the...