Loggerhead Turtle v. Council, Volusia County, Fla., 6:95-cv-587-Orl-22B.
| Decision Date | 24 March 2000 |
| Docket Number | No. 6:95-cv-587-Orl-22B.,6:95-cv-587-Orl-22B. |
| Parties | LOGGERHEAD TURTLE (Caretta caretta), Green Turtle (Chelonia mydas), Leatherback Turtle (Dermochelys coriacea), Shirley Reynolds and Rita Alexander, Plaintiffs, v. The COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, a political subdivision of the State of Florida and Bruce Babbitt, in his official capacity as Secretary of the United States Department of the Interior, an agency of the United States of America, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Peter J.B. Zies, Zies Brothers, P.A., Maitland, Lesley Gay Blackner, Law Office of Lesley Blackner, Palm Beach, FL, for Loggerhead Turtle, (Caretta caretta), Green Turtle, (Chelonia mydas), Shirley Reynolds, Rita Alexander, Leatherback Turtle, (Dermochelys coriacea), plaintiffs.
Jeffrey D. Keiner, John A. Kirst, Jr., Charles W. Sell, Theodore L. Shinkle, Russell S. Kent, Gray, Harris & Robinson, P.A., Orlando, Jamie Ellen Seaman, Daniel D. Eckert, Volusia County Legal Department, Deland, I. Randall Gold, U.S. Attorney's Office, Middle District of Florida, Orlando, FL, Mark A. Brown, Wildlife & Marine Resources Section, Environment & Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for the County Council of Volusia County, Florida, Bruce Babbitt, Secretary of the United States Department of Interior, defendants.
Congress has found that various species of fish, wildlife, and plants in the United States have been so depleted in numbers that they are in danger of or threatened with extinction. See 16 U.S.C. § 1531(2). Because these particular species are deemed to have "esthetic, educational, historical, recreational, and scientific value to the Nation and its people," the United States has pledged itself to conserve them, to the extent practicable. To fulfill this pledge, in 1973, Congress enacted the Endangered Species Act ("the ESA" or "the Act") in an attempt to "halt and reverse the trend toward species extinction, whatever the cost." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117, (1978).1 The Act sets forth a comprehensive plan whereby endangered and threatened species and the ecosystems upon which they depend may be preserved. See 16 U.S.C. § 1531 et seq.; see also, e.g., Pacific Rivers Council v. Thomas, 936 F.Supp. 738 (D.Idaho 1996); Palila v. Hawaii Dept. of Land and Natural Resources, 649 F.Supp. 1070 (D.Haw.1986), aff'd, 852 F.2d 1106 (9th Cir.1988).
Once again, the Court is called upon to apply the Act's protections to three species of sea turtles2 which nest on the shores of Volusia County, Florida: the Leatherback sea turtle (Caretta caretta) and Green sea turtle (Chelonia mydas), both endangered,3 and the Loggerhead sea turtle (Dermochelys coriacea), whose extinction is threatened.4 The Loggerhead, Green, and Leatherback sea turtles, along with Rita Alexander and Shirley Reynolds (collectively "the Plaintiffs"), move this Court to preliminarily enjoin Defendant, County Council of Volusia County, Florida ("Volusia County") from "permitting" all artificial light sources that harm the sea turtles on Volusia County beaches during their nesting season. Plaintiffs and Volusia County have also filed cross-motions for summary judgment on this issue.
On March 20, 2000, the Court held a hearing on all pending motions, at which representatives for the Plaintiffs, Volusia County, and the Secretary of the Interior were present.5 Having considered the parties' arguments and submissions, and for the reasons set forth below, the Court concludes that Plaintiffs' motion for preliminary injunction is due to be denied. As to Count 1 of the Second Amended Complaint, which addresses only Volusia County's liability in connection with the artificial beachfront lighting issue, the County is entitled to summary judgment.
On June 8, 1995, Plaintiffs filed this action contemporaneously with their first motion for preliminary injunction, which sought two forms of relief to prevent the "taking"6 of sea turtles on Volusia County beaches. Plaintiffs' claims centered around Volusia County's beach-related ordinances regarding lighting and vehicular access, which Plaintiffs believed posed an immediate danger to the Loggerhead and Green sea turtles. To remedy the alleged harm, Plaintiffs asked the Court to enjoin Volusia County from permitting vehicular traffic on the beach and to compel the County to enforce — throughout the entire county — Florida's "Model Lighting Ordinance for Sea Turtle Protection," instead of the county ordinance then currently in effect.
The artificial beach lighting ordinance in effect at that time, entitled "Minimum Environmental Standards for Sea Turtle Protection,"7 was calculated to minimize the artificial light on the beaches by implementing lighting restrictions in three categories: 1) lights associated with new development; 2) lights associated with existing development; and 3) lights that are publicly owned. The ordinance did not apply county-wide to new development; rather, the law permitted municipalities within the county to submit their own proposed ordinance subject to the county's approval. Several municipalities elected this option. In addition, the parts of the ordinance covering existing development and public lighting (from which it was alleged the majority of the harmful lighting emanated) did not apply at all to the cities of Daytona Beach and Daytona Beach Shores, since the County believed that sea turtles would not likely utilize those two areas for nesting.
On August 5, 1995, this Court entered an order on Plaintiffs' first motion for preliminary injunction. See Loggerhead Turtle v. County Council of Volusia County, 896 F.Supp. 1170 (M.D.Fla.1995). As to the beachfront driving issue, the Court enjoined Volusia County from permitting private vehicles upon its beaches at night and from permitting vehicles to drive and park within the "conservation zone."8
As to the artifical lighting issue, the Court found that the Plaintiffs lacked standing to sue Volusia County for takes that had occurred within the non-party municipalities of Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach, because those municipalities, albeit located within the County, had supplemental authority to regulate and/or independently enforce their own artificial beachfront lighting restrictions.9 Importantly, the Court further opined that Volusia County's then-existing lighting ordinance, which applied throughout the unincorporated areas and the Town of Ponce Inlet, did not, in and of itself, violate the Endangered Species Act.
At the time the preliminary injunction was issued, Volusia County had pending an application for an "incidental take permit" pursuant to 16 U.S.C. § 1539,10 which, in essence, would allow Volusia County to "take" some sea turtles as a result of beach driving. As explained in the margin, a person seeking an incidental take permit ("ITP") must propose measures to minimize and mitigate, to the maximum extent practicable, the impacts of such taking. In this case, as part of the permit process, Volusia County agreed to adopt extensive mitigatory measures, including the development of a "Beach Lighting Management Plan," under which the County was required, inter alia, to survey every lighting source, study their impacts, and implement methods to correct light sources that misorient sea turtles. On November 21, 1996, Volusia County obtained the permit from the United States Fish and Wildlife Service. Finding that alleged takes in violation of the ESA caused by artificial lighting were within the permit's scope, the Court dismissed the action on December 20, 1996 as to both the beach driving and artificial beachfront lighting issues. Plaintiffs appealed the Court's dismissal and the granting of Volusia County's motion for partial summary judgment on the County's liability for lighting-related takings within the County's incorporated municipalities.
Loggerhead Turtle v. Volusia County, 148 F.3d 1231 (11th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1488, 143 L.Ed.2d 570 (1999).
The Eleventh Circuit reversed the district court's dismissal of the case in two relevant respects. First, the Court ruled that the ITP issued to Volusia County which permits takings of sea turtles caused by beach driving does not additionally permit takings caused by artificial lighting. After remand, the issue left for this Court was whether Volusia County could be held liable for the lighting takings occurring in the County's unincorporated areas which fall within the County's direct regulatory control. Second, the appellate court held that the Plaintiffs had standing "to seek to hold Volusia County liable" for harmfully inadequate regulation of artificial beachfront lighting in the non-party municipalities of Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach. Again, the lighting issue was remanded for the Court to determine whether Volusia County's lighting ordinance violated the Endangered Species Act.
Several weeks before the Eleventh Circuit issued its opinion, Volusia County adopted Ordinance 99-12, which sets forth new "Minimum Standards for Sea Turtle Protection." Significantly, 99-12 revised the definition of "sea turtle nesting areas" subject to regulation to include the municipalities of Daytona Beach and Daytona Beach shores.11 The new ordinance applies to the entire length of Volusia County's beaches, from the Florida State Recreational Area to the north boundary of the Canaveral Seashore.
In addition, Ordinance 99-12 also amended the "adoption of standards by municipalities." This provision now provides that the affected...
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