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Court Finds Beach Lighting "Takes" Endangered Sea Turtles

Loggerhead Turtle v. County Council of Volusia County, Florida, 148 F.3d 1231 (11th Cir. 1998).
 
 

Brad Rath, 2L
 

On August 3, 1998, the United States Eleventh Circuit Court of Appeals held that Volusia County, Florida, must take additional measures to protect endangered sea turtles that nest on its beaches to be in compliance with the Endangered Species Act.1 Reversing the District Court decision,2 the Eleventh Circuit ruled that a permit that allowed beachfront driving in sea turtle nesting areas did not allow harmful artificial lighting within the areas. The finding decides an issue of first impression and clarifies permitting procedures under the Endangered Species Act.
 

Sea Turtles in Volusia County

As in many areas along the Gulf of Mexico and the Atlantic coasts of Florida, the beaches of Volusia County serve as nesting grounds for the threatened loggerhead sea turtle and the endangered green sea turtle.3 The beaches are popular tourist attractions with high density residential development. The devel-oped beaches present numerous dangers for adult and hatchling sea turtles, especially from artificial lighting and beachfront driving.4 In the spring, female adult sea turtles reach the beaches and deposit their eggs in the sand. Several months later, the hatchlings break out of their shells at night and instinctively crawl toward the brightest light which, on an undeveloped beach, is the moon's reflection off the surf.

However, female sea turtles avoid areas where the beachfront lighting is most intense, resulting in aborted nesting attempts. Also, the hatchlings become disoriented by the artificial light which fatally leads them away from the sea and into busy roadways. The beachfront driving also prevents adult turtles from coming ashore to deposit their eggs and automobiles may run over the hatchlings or create deep ruts in the sand which trap the hatchlings. These dangers contributed to the declining populations of the loggerhead and green sea turtles along Florida's coasts. As a result, the Fish and Wildlife Service (Service) listed the loggerhead sea turtle as threatened and the green sea turtle as endangered under the Endangered Species Act (ESA).
 

Volusia County Takes Action Under the ESA

The ESA protects listed species such as the sea turtles by prohibiting harm to the animal and by protecting the species' critical habitat. "Harm" includes "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."4

For the loggerhead and green sea turtles, beachfront driving and artificial lighting could jeopardize the recovery of the species. To allow these activities in nesting areas, the ESA required Volusia County to develop a Habitat Conservation Plan to provide certain protections to conserve the species and its habitat. After developing the habitat conservation plan, Volusia County applied for an incidental take permit so that the accidental harming of a sea turtle as a result of a permitted activity would not violate the ESA.

On November 21, 1996, the Service issued an incidental take permit to Volusia County which authorized accidental takes of sea turtles due to beach driving under "Condition F." The permitted activities included driving by emergency and safety vehicles as well as some vehicles operated by the general public. The incidental take permit also provided for mitigation measures such as public awareness programs, turtle-friendly lighting, and lighting maintenance guidelines. These measures, established in "Condition G," included plans for reducing the adverse effects of the artificial lighting along the beachfront. In June of 1995, when Rita Alexander and Shirley Reynolds became aware that Volusia County was not protecting the turtles from beach driving or artificial beachfront lighting, they filed suit on behalf of the turtles. The United States District Court for the Middle District of Florida granted the Turtles a preliminary injunction to halt the beach driving, but denied preliminary relief regarding the artificial lighting indicating that the Turtles did not prove that lighting was "reasonably likely" to take sea turtles.5 The Turtles appealed this decision to the Eleventh Circuit.
 

Eleventh Circuit's Holding

In the appeal, the Turtles assert that Volusia County's incidental take permit authorizes incidental takes of sea turtles from beach driving by emergency and safety vehicles but not takes resulting from artificial beachfront lighting. The Turtles posit that the Service's permission must be explicit and that no inferences may be drawn in a permit that does not specifically allow takes through artificial lighting.

Volusia County counters that its authority to take sea turtles through lighting is implied under the permit even though the permit alludes to artificial lighting as a mitigation measure only. Volusia County asserts that its exhaustive studies of the effects of artificial light on sea turtles are sufficient to allow incidental takes and that the Service anticipated that the county would not be liable for incidental takes resulting from the artificial beachfront lighting.

The Eleventh Circuit ruled that the county's incidental take permit does not authorize it to take protected sea turtles through artificial beachfront lighting because the lighting is solely a mitigatory measure. The court points out that all activities which may result in incidental takes are established under Condition F of the permit. If the Service intended to allow Volusia County to take sea turtles through the use of artificial beachfront lighting, then it would have granted such authority in Condition F. Because the lighting is included only under Condition G, Volusia County does not have the authority to take sea turtles through artificial lighting. The court stated that the ESA's "text and the Service's regulations provide every indication that incidental take permission must be express and activity-specific."6 Therefore, the incidental take permit does not authorize (expressly or impliedly) takes via activities listed only as mitigatory measures.

Who can sue and who can be sued?

The Eleventh Circuit also held that Volusia County could be sued for takes which occurred in the non-party municipalities of Daytona Beach, Daytona Beach Shores, Ormond Beach, and New Smyrna Beach. Volusia County argued that because these municipalities exercised some control over beachfront lighting within their respective areas, the municipalities should be sued individually. However, the court found that Volusia County had sufficient authority to impose county-wide lighting restrictions. Since the district court was capable of redressing the harm while respecting Volusia County's regulatory authority over the non-party municipalities, Volusia County could be sued for takes occurring in those municipalities.

Finally, the Eleventh Circuit determined that the plaintiff Turtles should be allowed to add the endangered leatherback sea turtle as a party. It reasoned that although the leatherback was mentioned in only one part of the notice to sue, the letter in its entirety did provide sufficient notice that the lighting also impacted this turtle. In addition, the addition of the leatherback as a party does not cause an undue delay or great expense to Volusia County. Thus, the district court abused its discretion when it denied the Turtles the opportunity to amend the original complaint to include the leatherback sea turtle.

Conclusion

Volusia County moved for a rehearing which was denied by the Eleventh Circuit.7 The original decision stands and clarifies that incidental take permits under the ESA must be explicit when permitting activities that will harm an endangered species.
 

NOTES
 

1. Loggerhead Turtle v. County Council of Volusia County, Florida, 148 F.3d 1231 (11th Cir. 1998).

2. See Loggerhead Turtle v. County Council of Volusia County, Florida, 896 F. Supp. 1170 (M.D. Fla. 1995).

3. An endangered species is in danger of extinction throughout all or a significant portion of its range, 16 U.S.C. § 1532(6) (1998); a threatened species is likely to become an endangered species within the foreseeable future, 16 U.S.C. § 1532(20) (1998).

4. 50 C.F.R. § 17.3 (1997).

5. Loggerhead Turtle, 896 F.Supp. at 1181, 1183.

6. Id. at 1242.

7. Telephone Interview with Eleventh Circuit Court Clerk's office (November 20, 1998).
 
 

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