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Loggerhead Turtle v. County Council of Volusia County, Fla.

ELR Citation: 28 ELR 21546
Nos. 97-2083, 148 F.3d 1231/47 ERC 1014/(11th Cir., 08/03/1998)

The court holds that a Florida county's Endangered Species Act (ESA) §10 incidental take permit does not authorize it to take protected sea turtles through purely mitigatory measures associated with artificial beachfront lighting. The court first holds that the county lacks the U.S. Fish and Wildlife Service's (FWS') express permission to take sea turtles incidentally through artificial beachfront lighting. The 11 types of incidental take in the county's incidental take permit relate only to vehicular access on the county's beaches. None of the 11 listed activities concern artificial beachfront lighting. Likewise, the mitigation measures in the county's incidental take permit do not contain any language expressly authorizing takes of sea turtles through artificial lighting. The court next holds that FWS' express conditioning of the incidental take permit on the county's implementation of detailed lighting-related mitigatory measures did not impliedly permit the county to take sea turtles. The incidental take exception does not apply to and, thus, does not except from liability an activity performed as a purely mitigatory measure. Moreover, the ESA's text and FWS' regulations provide every indication that incidental take permissions must be express and activity-specific. And the county's application sought an incidental take permit for vehicle beach access. Lighting was addressed as a mitigating factor.

The court then holds that plaintiffs, two individuals and two species of sea turtles, have standing to sue the county for inadequate regulation of lighting-related harm in nonparty municipalities. The county possesses primary authority to regulate artificial beachfront lighting countywide and has the authority to establish minimum standards for the protection of the environment that apply within all areas of the county. That the two municipalities subject to the minimum standards have the supplemental authority to enact more onerous standards, and that the two municipalities exempt from the minimum standards could decide to enact some, does not sever the fairly traceable connection between the county's regulatory actions and the plaintiffs' alleged harm. However, because the county does not possess any control over the actual, day-to-day enforcement measures that the municipalities subject to the standards employ, the plaintiffs lack standing to hold the county responsible for inadequate enforcement efforts in those two municipalities. In addition, the plaintiffs' alleged harm in the nonparty municipalities can be constitutionally redressed through relief that respects the county's control over the municipalities. If the district court were to grant the requested relief fewer protected sea turtles would be harmed through misorientation. And alternative effective relief exists that adequately brings about the county's ESA compliance without violating the separation of powers.

The court also holds that the district court's denial of plaintiffs' leave to amend the original complaint to include the leatherback sea turtle fell outside the permissible range of discretion. The district court erroneously concluded that the plaintiffs failed to invoke subject matter jurisdiction. The factual premise to that conclusion—that a copy of their notice of intent to sue letter was not on file with the court—was false. In addition, the letter provided notice sufficient to afford the opportunity to rectify the asserted ESA violations. Similarly, the district court's second basis for denial, the plaintiffs' undue delay, is equally flawed. The plaintiffs filed their leave to amend within the time period prescribed in the district court's scheduling order. At most, their failure to request leave sooner supports a finding of delay not undue delay. And the district court's final basis for denying leave, prejudice to the county, constituted anything but a substantial reason to deny leave to amend because the plaintiffs never requested the preliminary relief for the leatherback turtle on which the district court based its conclusion of prejudice. Therefore, the leatherback sea turtle must be included in further proceedings on remand.

Counsel for Plaintiffs
Leslie Blackner
Law Offices of Leslie Blackner
123 Australian Ave., Palm Beach FL 33480
(561) 659-5754

Counsel for Defendant
Jeffrey D. Keiner
Gray, Harris & Robinson
201 E. Pine St., Ste. 1200, Orlando FL 32802
(407) 843-8880

Before Roney and Clark, JJ.