Loggerhead Turtle v. County Council of Volusia County, Florida
28 Envtl. L. Rep. (Envtl. Law Inst.) 21546, 148 F.3d 1231, 41 Fed. R. Serv. 3d 563 (1998)
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Rule of Law:
An incidental take permit under the Endangered Species Act (ESA) must expressly authorize the specific activity causing takes, meaning purely mitigatory measures do not implicitly grant such authorization; furthermore, governmental entities can be liable for indirect 'takes' caused by their regulatory actions (or inactions) in sub-jurisdictions, and courts should liberally allow amendments to pleadings unless there is clear undue delay or prejudice.
Facts:
- In 1978, the United States Fish and Wildlife Service listed the loggerhead sea turtle as a threatened species and the green sea turtle as an endangered species.
- Volusia County, Florida, possesses nearly forty miles of Atlantic Ocean beaches that serve as nesting grounds for both humans and sea turtles.
- Female adult sea turtles come ashore in the spring to deposit eggs, and months later, hatchling sea turtles instinctively crawl toward the brightest light on the horizon at night.
- On developed beaches, inland artificial light sources disorient or misorient hatchling turtles, causing them to crawl away from the ocean, and nesting females may avoid intensely lit areas or abort nesting attempts.
- Volusia County's Home Rule Charter requires it to establish county-wide minimum environmental standards that prevail over municipal standards unless municipalities establish more restrictive ones.
- Volusia County enacted Ordinance 89-60, "Minimum Environmental Standards for Sea Turtle Protection," which restricted lights for new development county-wide but exempted Daytona Beach and Daytona Beach Shores from existing and public lighting restrictions, based on an ordained finding that sea turtles do not nest or likely nest in those areas.
- Ormond Beach and New Smyrna Beach, incorporated municipalities within Volusia County, enforce their own county-approved versions of Ordinance 89-60 regarding existing development and public lighting.
Procedural Posture:
- On June 8, 1995, Loggerhead Turtle, Green Turtle, Shirley Reynolds, and Rita Alexander (collectively, "the Turtles") filed a lawsuit against the County Council of Volusia County, Florida ("Volusia County") in the United States District Court for the Middle District of Florida, alleging violations of the ESA's "take" prohibition due to beach driving and artificial beachfront lighting.
- Volusia County applied to the United States Fish and Wildlife Service ("Service") for an "interim" incidental take permit.
- The district court granted in part the Turtles' motion for a preliminary injunction as to beach driving but denied preliminary relief as to artificial beachfront lighting.
- The district court entered a pretrial order setting deadlines for motions to amend and add parties, and for discovery.
- On October 27, 1995, the Turtles filed a motion for leave to amend their complaint to add the leatherback sea turtle as a party.
- Volusia County moved for partial summary judgment, arguing the Turtles lacked standing to assert claims for takes in non-party municipalities.
- On July 9, 1996, the district court granted Volusia County's motion for partial summary judgment, concluding the Turtles lacked standing, and denied the Turtles' motion for leave to amend.
- On November 21, 1996, the Service issued an incidental take permit to Volusia County.
- Volusia County moved the district court to dissolve the preliminary injunction and dismiss the Turtles' case, contending the permit mooted further proceedings.
- The district court agreed with Volusia County and closed the case, leading the Turtles to appeal to the United States Court of Appeals for the Eleventh Circuit.
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Issue:
1. Does the incidental take permit exception to the ESA's "take" prohibition apply to an activity performed as a purely mitigatory measure upon which the issuing agency conditions the permit? 2. Does a governmental entity's regulatory control of minimum wildlife protection standards cause a redressable injury to protected wildlife, sufficient for standing, in locations where non-party governmental entities possess supplemental authority to regulate and/or exclusively control enforcement? 3. Did the district court abuse its discretion in denying the Turtles' motion for leave to amend their original complaint to add the leatherback sea turtle as a party?
Opinions:
Majority - HATCHETT, Chief Judge
1. No, Volusia County's incidental take permit does not except it from liability for taking protected sea turtles through artificial beachfront lighting because the permit did not expressly authorize takes for lighting, even though it included lighting-related mitigatory measures. The Endangered Species Act (ESA) and its regulations mandate that incidental take permission be express and activity-specific. The permit explicitly listed 11 authorized incidental take types, all related to vehicular access on beaches (Condition F), while artificial beachfront lighting was only mentioned in Condition G, which detailed "Mitigation/Minimization Measures." The court highlighted the statutory and regulatory distinction between authorized activities and mitigation. The Service's own correspondence affirmed that the permit sought authority only for "vehicular access to Volusia County beaches," and lighting discussions were for mitigation, not take authorization. The court emphasized that permits are to be "strictly construed" (50 C.F.R. § 13.42) and distinguished Ramsey v. Kantor by noting critical differences between incidental take statements (§ 1536(b)) and incidental take permits (§ 1539(a)), particularly regarding express mitigation requirements and the scope of protection. 2. No, the district court erred; the Turtles do have standing to sue Volusia County for takes that occur in certain non-party municipalities, as the harm is "fairly traceable" to Volusia County's regulatory acts (or inactions) and "redressable" by a favorable decision, though not for municipalities' independent enforcement failures. Standing requires injury-in-fact, traceability, and redressability. Volusia County's charter grants it primary authority to regulate artificial beachfront lighting county-wide, including setting minimum standards and exempting certain municipalities. The court found this regulatory framework created a sufficient "causal connection" between Volusia County's actions (e.g., exempting Daytona Beach and Daytona Beach Shores entirely, or imposing minimums on Ormond Beach and New Smyrna Beach) and the alleged harm from artificial lighting. This indirect causation is sufficient for standing under Babbitt v. Sweet Home and is supported by Defenders of Wildlife v. EPA and Strahan v. Coxe. However, the Turtles lack standing to sue for the independent enforcement failures of Ormond Beach and New Smyrna Beach, over which Volusia County lacks day-to-day control. For redressability, the court found that declaratory and injunctive relief (e.g., striking exemptions or ordering a committee to propose solutions) could constitutionally remedy the harm without violating separation of powers. 3. Yes, the district court abused its discretion in denying the Turtles' motion for leave to amend their complaint to add the leatherback sea turtle as a party. Under Fed.R.Civ.P. 15(a) and 21, leave to amend should be "freely given when justice so requires" (Foman v. Davis). The district court's reasons were flawed: (1) it erroneously concluded it lacked subject matter jurisdiction because it couldn't locate the notice-to-sue letter (which was in the record and adequately referenced the leatherback); (2) its finding of "undue delay" was incorrect, as the motion was filed within the pretrial order's deadline and was based on newly obtained information; and (3) its concern about "undue prejudice" (extending preliminary injunctions) was misplaced, as the Turtles did not seek such relief for the leatherback, and any nominal expense or delay was outweighed by the liberal amendment standard.
Dissenting - RONEY, Senior Circuit Judge
1. Yes, the incidental take permit issued by the U.S. Fish and Wildlife Service renders the case moot regarding incidental takes caused by artificial lights because the permit's comprehensive conservation plan effectively covers and regulates artificial beachfront lighting. Congress delegated broad administrative and interpretive power to the Department of the Interior to manage endangered species, including permitting incidental takes that do not threaten species survival. The incidental take permit includes an Artificial Beachfront Lighting Management Plan, which requires extensive surveys and modification of lights to minimize disorientation. It is illogical to engage in parallel litigation in federal court when the issue is under the direct supervision and management of the federal agency responsible for conservation, which possesses specialized expertise. Even if not moot, the case should be stayed under the primary jurisdiction doctrine, allowing the agency's expertise to resolve the factual question of whether artificial beachfront lighting causes "takes" and to craft a flexible solution, thereby avoiding potential conflicts with the established regulatory scheme.
Analysis:
This case offers crucial interpretations of the ESA, particularly regarding the strict construction of incidental take permits, emphasizing the necessity of explicit authorization for specific activities rather than implicit coverage through mitigation measures. It significantly broadens the scope of standing for citizen suits under the ESA by clarifying that governmental regulatory actions (or inactions), even if indirect, can satisfy the "fairly traceable" and "redressability" requirements for harm occurring in sub-jurisdictions. This holding empowers plaintiffs to challenge inadequate regulatory frameworks at higher governmental levels. Additionally, the decision reinforces the liberal amendment policy under federal rules, setting a high bar for denying amendments when proper notice is given and genuine prejudice or undue delay is absent, thus promoting efficiency and full adjudication of claims. Future cases will likely see closer examination of permit language and increased litigation against regulatory bodies for indirect harm to protected species.
