Loggerhead Turtle v. County Counc., Volusia County, No. 6:95CV587ORL22B.

Citation120 F.Supp.2d 1005
Decision Date17 May 2000
Docket NumberNo. 6:95CV587ORL22B.
PartiesLOGGERHEAD 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 sub-division 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.
CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida

Peter J.B. Zies, Zies Brothers, P.A., Maitland, FL, Lesley Gay Blackner, Blackner, Stone & Assoc., Palm Beach, FL, for plaintiffs.

Jeffrey D. Keiner, John A. Kirst, Jr., Charles W. Sell, Theodore L. Shinkle, Russell S. Kent, Gray, Harris & Robinson, P.A., Orlando, FL, Jamie Ellen Seaman, Daniel D. Eckert, Volusia County Legal Department, Deland, FL, for The County Council of Volusia County, Florida, a political subdivision of the State of Florida, defendant.

Environmental Council of Volusia and Flagler Counties, Environmental Council of Volusia & Flagler Counties, R.P. Haviland, P.E., Daytona Beach, FL, movant pro se.

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 Bruce Babbitt, in his official capacity as Secretary of the United States Department of the Interior, an agency of the United States of America, defendant.

ORDER

CONWAY, District Judge.

The Court now considers the parties' cross-motions for summary judgment on all remaining issues in this action. Plaintiffs, the Loggerhead, Leatherback, and Green Sea Turtles, Shirley Reynolds, and Rita Alexander (collectively "the Plaintiffs"), seek judicial review under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., of the United States Fish and Wildlife Service's decision to issue an Incidental Take Permit to Volusia County in connection with vehicular beach driving and the agency's refusal to revoke the permit or reinitiate consultation as provided in the Endangered Species Act, 16 U.S.C. § 1531 et seq. For the reasons that follow, the federal Defendant is entitled to summary judgment.

I. Introduction.

Volusia County's residents and visitors share the county's beaches with endangered and threatened sea turtles. The residents and visitors use the beaches for living and recreational purposes. The sea turtles use the beaches for their seasonal nesting ground. These competing interests have created a somewhat inharmonious relationship between the humans and turtles.

The humans' use of the beach disturbs the sea turtles' nesting habits in at least two distinct ways. First, because beachfront living is at a premium in Volusia County, the shoreline has become highly developed. This development has created what some describe as an "urban glow," with artificial beachfront lighting illuminating the beach and surrounding sky. Sea turtles generally nest in the dark of night. They come ashore, deposit their eggs in the sand, and return to the ocean. When the hatchlings emerge, they instinctively depend on the moon's light to guide them seaward. Seduced by the artificial light, some hatchlings crawl toward land and perish from exhaustion, dehydration, or predation. Studies also show that nesting females avoid areas where beachfront light is most intense, and abort nesting attempts at a greater frequency in lighted areas.

Second, in conjunction with sunbathing and recreational activities, Volusia County allows residents and visitors to drive their vehicles directly on the beaches. The throngs of beach goers, on foot and in cars, leave behind garbage and tire ruts, and generally disturb the natural condition of the beach and its sand. These conditions hinder the sea turtles' ability to find their way to the ocean, which is necessary for their survival.

Since these human-made hazards interrupt the sea turtles' nesting process, resulting in death to members of the species, the turtles often fall on the losing side of the battle over utilization of the beaches. Two things happened to improve the sea turtles' stance in the struggle over their natural nesting ground in Volusia County. First, in 1973, Congress passed powerful conservation legislation 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). Second, two Volusia County citizens, along with the turtles themselves, sued the County in 1995 in an effort to prevent humans from interfering with the turtles' nesting process. Five years of litigation has ensued. The following is an abbreviated version of the how the legal dispute has unfolded thus far.1

II. Factual and Procedural History.

In June 1995, Plaintiffs, the Loggerhead and Green Sea Turtles, Shirley Reynolds, and Rita Alexander (collectively "the Plaintiffs") initiated this lawsuit against the County Council of Volusia County ("the County"). Empowered by the Endangered Species Act's citizen-suit provision, 16 U.S.C. § 1540(g)(1)(A), Plaintiffs sought declaratory and injunctive relief to protect sea turtles that nest and hatch on the County's beaches. In essence, Plaintiffs claimed that the County's refusal to ban beach driving and artificial beachfront lighting during sea turtle nesting season violated the Endangered Species Act. At the same time, Plaintiffs filed a motion for preliminary injunction to prevent vehicular access to the County's beaches during the sea turtle nesting season and to enjoin the County from permitting all artificial beachfront light sources that harm sea turtles.

On August 1, 1995, this Court preliminarily enjoined the County from allowing private vehicles to drive on the county's beaches from one hour before sunset until one hour after sunrise, and from permitting vehicles to drive and park within an established "conservation zone," which extended seaward from the dunes for a distance of thirty feet. See Loggerhead Turtle v. County Council of Volusia County, 896 F.Supp. 1170, 1181-1182 (M.D.Fla. 1995). The Court denied preliminary relief as to the artificial beachfront lighting issue. The Court declined to compel the County to enforce a different, stricter lighting ordinance, even with respect to those municipalities that had their own lighting ordinances by the County's permission.

Aware that vehicular access to its beaches resulted in the unlawful taking of turtles, in 1994, the County began working toward obtaining an "incidental take permit" or "ITP" from the United States Fish and Wildlife Service ("the Service" or "FWS") for the extent to which vehicular beach access would result in the incidental "take"2 of sea turtles, their nests, eggs, or hatchlings.3 The Endangered Species Act allows an entity to receive statutory permission from the Service to "take" a protected species—which the act normally prohibits—if the applicant meets the Act's requirements and the take is incidental to an otherwise lawful activity.

The Court will describe the ITP process in more detail below. Suffice it to say here that the County applied for the ITP and, on November 21, 1996, the Secretary issued it. The County subsequently moved this Court to dissolve the preliminary injunction and dismiss the action. Because the ITP allowed for a certain amount of takes due to vehicular driving, and incorporated a Beach Lighting Management Plan which addressed the harm caused by artificial beachfront lighting, the Court granted the motion. See Order of December 20, 1996 (Doc. 147).

Two issues presented on appeal were: 1) whether the incidental take permit exception to the ESA's "take" prohibition applies to in activity performed as a purely mitigatory measure upon which the Service conditioned the permit; and 2) whether the County's regulatory control of minimum wildlife protection standards can cause redressable injury to protected wildlife in locations where non-party municipalities under the County's control possess supplemental authority to regulate and/or exclusively control enforcement. See Loggerhead Turtle v. Volusia County, 148 F.3d 1231, 1249 (11th Cir.1998), cert. denied, 526 U.S. 1081, 119 S.Ct. 1488, 143 L.Ed.2d 570 (1999).

The Eleventh Circuit reversed the district court's opinions on both issues. First, the court ruled that the ITP does not give the County permission for any lighting-related takings, even though the ITP incorporates beach lighting mitigation measures.4 Second, examining the County's prior ordinance, the appellate court held that the Plaintiffs had standing "to seek to hold Volusia County liable" for beachfront lighting ordinances adopted by non-party municipalities under the county's direct regulatory control. The appellate court remanded for this Court to determine whether Volusia County's lighting ordinance violated the Endangered Species Act.

Before the Court could reach that decision, in June 1999, the County amended its lighting ordinances. The County's amendments essentially mooted the lighting issues on remand. Plaintiffs accordingly amended their complaint to challenge the new lighting ordinance and subsequently moved for another preliminary injunction as to it. In addition, dissatisfied with the promulgation, implementation, and administration of the HCP and ITP, Plaintiffs moved to amend their complaint to add as a Defendant Bruce Babbitt, in his official capacity as Secretary of the United States Department of the Interior (hereinafter "the Secretary"), who delegates decision-making authority to the Service.5 Counts 2 through 5 of Plaintiffs' Second Amended Complaint are directed at the Service's actions concerning the County's incidental take permit. Plaintiff's assert the following claims: 1) FWS violated the ESA, § 10...

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    ...agency provides, whether the actions pass muster under the appropriate APA standard of review." Loggerhead Turtle v. County Council of Volusia County, 120 F.Supp.2d 1005, 1013 (M.D.Fla.2000). "Since the Court determines the issues based on the agency's administrative record, a trial is gene......
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