Loggerhead Turtle v. County Council of Volusia, No. 01-12164.

Decision Date30 September 2002
Docket NumberNo. 01-12164.
Citation307 F.3d 1318
PartiesLOGGERHEAD TURTLE (Caretta caretta), Green Turtle (Chelonia mydas), et al., Plaintiffs-Appellees, v. THE COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Daniel D. Eckert, Volusia County Legal Dept., DeLand, FL, for Defendant-Appellant.

Lesley Gay Blackner, Palm Beach, FL, Steven A. Davison, University of Baltimore School of Law, Baltimore, MD, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and BIRCH, Circuit Judges, and GOLDBERG*, Judge.

GOLDBERG, Judge:

The County Council of Volusia County, Florida (the "County") appeals the order of the district court granting attorney's fees to the appellees. The County argues that the Supreme Court's intervening decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), eliminates the catalyst test, on which the district court relied, as a basis to award attorney's fees in citizen suits under the Endangered Species Act, 16 U.S.C. § 1531 et seq. (2000) ("ESA"). For the reasons that follow, we find that Buckhannon's holding does not extend to the fee-shifting provision of the ESA and that the district court did not abuse its discretion in awarding the appellees attorney's fees.

I.

In 1995, appellees the loggerhead sea turtle, green sea turtle, and two interested Florida citizens (collectively, the "Turtles"), filed a complaint in federal district court alleging that the County was taking endangered sea turtles in violation of the ESA, and seeking declaratory and permanent injunctive relief.1 The Turtles alleged that takes occurred because, during sea turtle nesting season, (1) the County permitted limited vehicular access to its beaches, and (2) the County's ordinance restricting artificial beachfront lighting was ineffective in preventing takes, because it both failed to prevent disorientation and misorientation of sea turtle hatchlings, and exempted certain municipalities within the County altogether. Concurrent with the complaint, the Turtles filed a motion for a preliminary injunction to prevent the County from permitting beach driving and artificial light sources that resulted in the taking of sea turtles within any part of the County. Shortly after answering the complaint, the County applied to the U.S. Fish and Wildlife Service (the "Service") for an Incidental Take Permit ("ITP"), which would authorize takes incidental to a lawful activity.

In ruling on the Turtles' motion for a preliminary injunction, the district court agreed generally that artificial beach lighting resulted in takes, but found insufficient evidence that the County's existing lighting ordinance, designed to protect turtles from beach lighting, was reasonably likely to result in future takes of sea turtles. Loggerhead Turtle v. County Council, 896 F.Supp. 1170, 1180-81 (M.D.Fla.1995). The Court also held that it lacked clear legal authority to order the County to enact further legislation, and that the County was not responsible for takes by its municipalities. Id. at 1181. However, the district court found that beach driving was reasonably likely to result in future taking of sea turtles, and granted an injunction preventing the County from permitting most beach driving during nesting season. Id. at 1181-82.

The beach driving injunction remained in force for the 1995 and 1996 turtle nesting seasons. On November 21, 1996, the Service granted an ITP, whereupon the County moved to dismiss the Turtles' action. The Turtles opposed the motion, arguing that the ITP only permitted takes by beach driving, not beach lighting. On December 26, 1996, the district court held that both types of takes were covered by the ITP, and dismissed the entire action. The Turtles then moved for attorney's fees and costs, but the court denied the motion without prejudice pending the Turtles' appeal.

On appeal to this Court, the Turtles raised three issues: (1) the district court's ruling that the ITP covered takes from artificial beach lighting; (2) the district court's ruling that the Turtles lacked standing to sue the County regarding beach lighting takes in those municipalities, not joined in the suit, over which the County lacked plenary regulatory authority; and (3) the district court's order denying the Turtles' motion to amend their complaint by adding the endangered leatherback sea turtle as a plaintiff. We reversed on all issues and remanded to the district court. Loggerhead Turtle v. County Council, 148 F.3d 1231, 1258 (11th Cir. 1998), cert. denied 526 U.S. 1081, 119 S.Ct. 1488, 143 L.Ed.2d 570 (1999). We denied the Turtles' motion for attorney's fees and costs without prejudice so that the issue could be addressed at the conclusion of the action.

On June 7, 1999, the Turtles amended their complaint to include the leatherback turtle as a plaintiff and add a claim under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"), naming the United States Secretary of the Interior as defendant. The amended complaint omitted the beach driving claim, whose dismissal the Turtles had not appealed. On June 17, 1999, the County voluntarily adopted County Ordinances 99-12 and 99-13, more stringent beachfront lighting regulations whose purview subsumed the previously excluded municipalities. Shortly thereafter, the Turtles renewed their motion for a preliminary injunction, challenging the County's newly amended lighting ordinances. On March 24, 2000, the district court denied the preliminary injunction and entered summary judgment for the County on the beach lighting claim, after finding that the County's amendment of its lighting ordinances had effectively mooted the issue. Loggerhead Turtle v. County Council, 92 F.Supp.2d 1296, 1309 (M.D.Fla.2000). On May 17, 2000, the district court held that the ITP did not violate the APA, awarded costs to defendants with respect to that claim, and closed the case. Loggerhead Turtle v. County Council, 120 F.Supp.2d 1005, 1026-27 (M.D.Fla.2000).

Arguing that their suit was the catalyst for improved protection of sea turtles, the Turtles renewed their motion for attorney's fees and costs, in the amount of $313,452.73. This claim encompassed all legal work on the driving and lighting issues performed through June 17, 1999, the date that the County amended its beach lighting ordinances. The County conceded fees incurred for the beach driving claim up to August 1, 1995, when the district court issued its preliminary injunction. However, the County contested fees between that date and the district court's December 20, 1996 order dismissing the beach driving claim, arguing that the Turtles' suit did not have a catalytic effect on the County's ITP application.2 With respect to the beach lighting claim, the County objected to the award of any fees. The County argued that the Turtles failed to achieve their goal of a declaratory judgment, that enactment of County Ordinances 99-12 and 99-13 was not motivated by the Turtles' suit, that the district court's March 24, 2000 order dismissing the claim demonstrated that it was not colorable, and that the Turtles' suit had failed to contribute to the goals of the ESA.

The magistrate judge found that the Turtles were entitled to fees and costs for all legal work on the driving and lighting issues performed up to June 17, 1999, in the amount of $286,082.73.3 On March 23, 2001, the district court issued an order implicitly adopting the magistrate judge's recommendation in toto. The court held that the Turtles were entitled to fees for the entire beach driving claim, and for the beach lighting claim through June 17, 1999, when the County amended its lighting ordinances. In applying the so-called catalyst test, the court relied on our decision in Morris v. City of West Palm Beach, 194 F.3d 1203 (11th Cir.1999), wherein we held that plaintiffs who have not obtained a formal judgment in their favor may nonetheless be awarded fees if (1) the defendant takes an action materially altering the legal relationship between the parties such that the plaintiffs achieve a significant goal of their suit; (2) their suit was the catalyst for such action; and (3) the plaintiffs' claim was colorable and enjoyed reasonable likelihood of success on its merits. Id. at 1207-08. The court found that the Turtles' goal in bringing suit was to afford greater protection to endangered sea turtles nesting on the County's beaches, and that the County's adoption of more stringent lighting ordinances afforded such protection and materially altered the parties' legal relationship. The court further found that the Turtles' suit was the primary impetus for the adoption of the new ordinances, and that the Turtles' claims were objectively reasonable. Accordingly, the court awarded fees and costs in the amount of $286,082.73.

On appeal of this award, the County now concedes all fees and costs on the beach driving claim, but disputes fees for the beach lighting claim after the dismissal of the driving claim on December 20, 1996. The County argues that the catalyst test on which the district court relied in awarding fees for the lighting claim has since been invalidated by the Supreme Court's recent decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 (2000).

II.

Although we review a district court's decision to award attorney's fees for abuse of discretion, the question of law regarding the proper standard for the award is an issue we consider de novo. Barnes v. Broward County Sheriff's Office, 190 F.3d 1274, 1276-77 (11th Cir.1999). We review any factual findings germane to that...

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