Loggerhead Turtle v. County Council of Volusia County, Florida

No. 6:95-cv-587-ORL-22B (92 F. Supp. 2d 1296) (M.D. Fla. May 17, 2000)

ELR Digest

The court grants summary judgment to the U.S. Department of the Interior in a citizen suit action brought against it under the Endangered Species Act (ESA) and the Administrative Procedure Act challenging the U.S. Fish and Wildlife Service's (FWS') approval of a habitat conservation plan (HCP) and an incidental take permit (ITP) for sea turtles in Volusia County, Florida. The court first holds that the FWS properly issued the county's ITP. Before granting the permit, the FWS made each of the required statutory findings that the take would be incidental, the county would minimize and mitigate the impacts of any takes and ensure funding, and the incidental takes would not appreciably reduce the likelihood of the survival and recovery of the species in the wild. The record provides a rational basis for each of these findings, which is all the law requires. The court next holds that the FWS considered the best available scientific and commercial data when it concluded that the HCP minimized and mitigated the impacts of the takings of sea turtles to the maximum extent practicable. The citizens failed to demonstrate that the FWS' decisions were not informed by the required data. The court also holds that the FWS did not violate the ESA by not revoking the ITP for the county's noncompliance. Notice of an alleged violation does not automatically trigger mandatory revocation. The FWS must first make a finding of noncompliance, and the FWS never made such a finding. Moreover, the record contains ample evidence that the FWS used its discretion reasonably in deciding not to revoke the permit based on the county's response to complaints and continual efforts to achieve full compliance with the ITP's terms. Last, the court holds that the FWS did not violate the ESA by refusing to initiate consultation under ESA § 7. The citizens claimed that the FWS was required to reinitiate consultation based on new information—alleged permit violations and a new scientific study and nesting data collected after the permit was issued. Permit violations cannot fairly be characterized as new information that the FWS has not previously considered, and the citizens failed to meet their burden that the new scientific study reveals effects on the sea turtles that are different or more extensive than those previously considered. Moreover, although the permit was amended, permit amendments do not automatically trigger the reinitiation of consultation.

[A prior decision in this litigation is published at 28 ELR 21546.]

The full text of this opinion is available from ELR (39 pp., ELR Order No. L-229).

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

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

[30 ELR 20621]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]