Fla. Panthers, (Puma Concolor Coryi) an Endangered Species, Red-Cockaded Woodpeckers, (Picoides Boralis) an Endangered Species, Fla. Wildlife Fed'n, Corp. v. Collier Cnty.

• Decision Date: 08 April 2016
• Docket Number: Case No: 2:13-cv-612-FtM-29DNF
• Parties: FLORIDA PANTHERS, (Puma concolor coryi) an endangered species, RED-COCKADED WOODPECKERS, (Picoides boralis) an endangered species, FLORIDA WILDLIFE FEDERATION, a not-for-profit Florida corporation, and COLLIER COUNTY AUDUBON SOCIETY, INC., a not-for-profit Florida corporation, Plaintiffs, v. COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida, GEORGIA A. HILLER, in her official capacity as a Collier County Commissioner, TOM HENNING, in his official capacity as a Collier County Commissioner, FRED W. COYLE, in his official capacity as a Collier County Commissioner, and TIM NANCE, in his official capacity as Collier County Commissioner, Defendants.
• Court: U.S. District Court — Middle District of Florida

FLORIDA PANTHERS, (Puma concolor coryi) an endangered species, RED-COCKADED WOODPECKERS,
(Picoides boralis) an endangered species, FLORIDA WILDLIFE FEDERATION,
a not-for-profit Florida corporation, and COLLIER COUNTY AUDUBON SOCIETY, INC.,
a not-for-profit Florida corporation, Plaintiffs,
v.
COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida,
GEORGIA A. HILLER, in her official capacity as a Collier County Commissioner,
TOM HENNING, in his official capacity as a Collier County Commissioner,
FRED W. COYLE, in his official capacity as a Collier County Commissioner,
and TIM NANCE, in his official capacity as Collier County Commissioner, Defendants.

Case No: 2:13-cv-612-FtM-29DNF

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

April 8, 2016

OPINION AND ORDER

This matter is before the Court on the Third Amended Complaint (Doc. #81) filed by the Florida panthers, the red-cockaded woodpeckers (RCWs), the Florida Wildlife Federation (FWF), and the

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Collier County Audubon Society, Inc. (CCAS) (collectively, plaintiffs) against Collier County, Florida and Collier County Commissioners Georgia A. Hiller, Tom Henning, Penny Taylor, and Tim Nance in their official capacities (collectively, defendants, County, or Collier County) for violations of the Endangered Species Act of 1973 (ESA), 16 U.S.C. §§ 1531-44. (Doc. #81.) Plaintiffs first assert that Collier County's written policies and regulations relating to the clearing of agricultural land, the issuance of building permits for single family residences in the North Belle Meade (NBM) and Northern Golden Gate Estates (NGGE) portions of the county, and the planned future extension of Wilson Boulevard are pre-empted by § 6(f) of the ESA because they are less stringent than the prohibitions in the ESA (Counts I-III). Plaintiffs then assert that the same policies and regulations and the planned future extension of Wilson Boulevard constitute a "take" in violation of § 9 of the ESA (Counts IV-VI). Plaintiffs seek declaratory and injunctive relief prohibiting defendants from continuing to implement, enact, or authorize these activities without first issuing a Habitat Conservation Plan (HCP) and obtaining an Incidental Take Permit (ITP). (Doc. #81, ¶¶ 1-2.)

The matter is now before the Court on defendants' Motion to Dismiss (Doc. #85), to which plaintiffs have filed a Response (Doc. #86). The parties also filed cross motions for summary judgment (Docs. ##87, 90), to which Responses (Docs. ##89, 93) were filed.

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Also before the Court is plaintiffs' Third Request for Judicial Notice of Adjudicative Facts (Doc. #94), to which defendants' filed a Response (Doc. # 95). The Court heard oral arguments on March 4, 2016. The Court first provides some legal and factual background, then addresses the motions.

I.

A. The Endangered Species Act of 1973

Congress enacted the Endangered Species Act (ESA) "to halt and reverse the trend toward species extinction, whatever the cost." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978). "In accordance with this policy, the ESA provides for the listing of species as threatened or endangered and the designation of their critical habitat." Defs. of Wildlife v. U.S. Dep't of the Navy, 733 F.3d 1106, 1111 (11th Cir. 2013) (citing 16 U.S.C. § 1533). An "endangered species" is "any species which is in danger of extinction throughout all or a significant portion of its range," except for certain types of pests. 16 U.S.C. § 1532(6). A "threatened species" is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). "Critical habitat" means

(i) the specific areas within the geographical area occupied by the species, at the time it is listed [as an endangered or threatened species] in accordance with the provisions of section 1533 of this title, on which are found

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those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and

(ii) specific areas outside the geographical area occupied by the species at the time it is listed [as an endangered or threatened species] in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.

Id. § 1532(5)(A).

One of the ways in which the ESA protects listed species and their critical habitat is by prohibiting anyone from "taking" a listed species. Section 9 of the ESA makes it unlawful for any person subject to the jurisdiction of the United States to "take" any member of a listed endangered or threatened species within the United States. 16 U.S.C. § 1538(a)(1)(B). "Take" is defined broadly, and means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19); see Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704 (1995) ("Congress intended 'take' to apply broadly to cover indirect as well as purposeful actions."). The term "harass" is further defined by the regulations as an "intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to,

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breeding, feeding, or sheltering." 50 C.F.R. § 17.3. The regulations define "harm" as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 50 C.F.R. § 17.3; see also Babbitt, 515 U.S. at 708; Miccosukee Tribe of Indians of Fla. v. United States, 716 F.3d 535, 542 (11th Cir. 2013); Loggerhead Turtle v. Cnty. Council of Volusia Cnty., 148 F.3d 1231, 1238 (11th Cir. 1998).

As an exception to the prohibition against a "take," Congress allows the Secretary of the Interior, acting through the United States Fish and Wildlife Service (FWS),¹ to issue a permit "under such terms and conditions as he shall prescribe" which allows an otherwise prohibited taking "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). As a prerequisite to receiving an Incidental Take Permit (ITP), the applicant must submit a Habitat Conservation Plan (HCP) "that specifies":

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(i) the impact which will likely result from such taking;

(ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps;

(iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized; and

(iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan.

16 U.S.C. § 1539(2)(A)(i)-(iv). The applicant must also include a "complete description of the activity sought to be authorized" and "[t]he common and scientific names of the species sought to be covered by the permit, as well as the number, age, and sex of such species, if known[.]" 50 C.F.R. § 17.22(b)(1)(i)-(ii) (endangered wildlife); 50 C.F.R. § 17.32(b)(1)(iii)(A)-(B) (threatened wildlife). See Loggerhead Turtle, 148 F.3d at 1238-39.

Upon receiving a complete application package, the FWS must publish notice in the Federal Register and provide the public an opportunity to comment on whether it should issue the permit. 16 U.S.C. § 1539(a)(2)(B); 50 C.F.R. § 17.22. Upon expiration of the public comment period, the FWS must issue the permit if it finds that:

(i) the taking will be incidental;

(ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;

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(iii) the applicant will ensure that adequate funding for the plan will be provided;

(iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; . . .

(v) the measures, if any, required under [16 U.S.C. § 1539(a)(2)(A)(iv)] will be met; [and]

[the FWS] has received such other assurances as [it] may require that the [habitat conservation plan] will be implemented[.]

16 U.S.C. § 1539(a)(2)(B); 50 C.F.R. §§ 17.22(b)(2), 17.32(b)(2). An incidental take permit "may authorize a single transaction, a series of transactions, or a number of activities over a specific period of time." 50 C.F.R. §§ 17.22, 17.32. The applicant's failure to comply "with the terms and conditions of the permit" requires the FWS to revoke the permit. 16 U.S.C. § 1539(a)(2)(C). See Loggerhead Turtle, 148 F.3d at 1239.

State law may be more restrictive than the ESA provisions, but may not be less restrictive. Section 6(f) of the ESA provides in pertinent part:

Any State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this chapter or in any regulation which implements this chapter but not less restrictive than the prohibitions so defined.

16 U.S.C. § 1535(f).

The ESA provides for "citizen suits" to enforce its provisions. With certain exceptions not applicable to this case,

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any person may commence a civil suit on his own behalf-- (A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; . . . .

16 U.S.C. § 1540(g)(1)(A).

B. Endangered Species at Issue

(1) The Florida Panther

The Florida panther has been listed by the FWS as an endangered species since 1967. (Doc. #81, ¶¶ 18, 48); Conservancy of Sw. Fla. v. U.S. Fish &...