Loggerhead Turtle v. County Council of Volusia County

1231 (“This § ing plaintiff escape to may that a use 1983 at 527 and other Beardsley, 30 F.3d d prior of VII recognize comprehensive that scheme Title even long circuits suggest not intend Title be if a violation of Title Congress did the same facts 1991 VII claim remedy public employee’s VII); Trigg Wayne Community sole for v. Fort Cir.1985)(same); discrimination.”),4 (7th Schools, noth employment 299, of 302 766 (revers Rights Annis, Act of 1991 indicates ing the Civil F.3d at 254 36 appel congressional intent to overrule this plain ing that district court’s determination It is “more reasonable to late case law. Id. may alleging tiff discrimination employment Congress ave presume that intended both 1983, § bring solely an action under but not open.” (citing remain Id. nues of relief to plead VII had also a violation Title 580, Pons, 575, v. 434 U.S. Lorillard procedures). those follow Stoner, (1978)); 866, 55 L.Ed.2d 40 see also reasons, that For these we conclude (questioning a “mere F.Supp. at 741 how 846 Rights render Title Civil Act of 1991 did not change scheme of Title VII” in the remedial § VII and exclusive remedies holding change case law could earlier discrimination, public employment sector the remedial comprehensiveness of thereby preempting constitutional cause of Title was insufficient to bar of VII scheme we Accordingly, § under 1983. affirm action public employ § use sector denying the court’s order defen- district cases); Annis v. ment discrimination § motion to dismiss Johnson’s dants’ (2d Westchester, N.Y., 251, 36 F.3d claims. Cir.1994) (“[I]t Congress did not is clear AFFIRMED. reme intend make Title VII the exclusive claims, employment discrimination dy for cognizable

least those claims under not

Constitution.”). by the con- supported

This presumption accompanying the Civil

gressional finding and “ad-

Rights Act of 1991 that “additional” needed to deter

equate” remedies were workplace harassment and discrimination. (cid:127) (Caretta TURTLE caret 1981, § LOGGERHEAD As the note See U.S.C. (Chelonia mydas), ta); Green Turtle out, pointed “[i]t would be Fourth Circuit Plaintiffs-Appellants, al., et Congress conclude that the perverse to simultaneously provided additional remedies v. silently extinguish remedy intended OF VOLUSIA COUNCIL COUNTY years.” provided many § has COUNTY, FLORIDA, political subdivi 527. Beardsley, 30 F.3d at Florida, Defendant- sion State do assert that we defendants Appellee. § preempt intent to congressional infer No. 97-2083. be able to undermine public employees will by suing procedural safeguards Title VII’s Appeals, United States Court directly § unconstitutional under 1983 for Eleventh Circuit. may employment While discrimination. true, merely byprod “a such result Aug. multiple Congress’s choice to make

uct” of Keller, 827 F.2d at remedies available. Milwaukee,

958; City also see Ratliff (eonclud- (7th Cir.1986) 795 F.2d 623-24 See, e.g., preemption. v. State Cross parallel, claims under This circuit has allowed Ala., 1995). Cir. public sector em VII and 1983 in both Title cases, we held that the elements for both specifical those ployment cases without discrimination claims were the Congress, same. ly addressing be VII and whether issue Title Rights intended See id. Civil Act of fore the Blackner, City, York Ste-

Lesley Gay New Davison, University of Baltimore A. ven Baltimore, MD, Law, Plaintiffs- School Appellants. Keiner, Hamner, A.

Jeffrey D. Frank Sell, Gray, Dilg, G. Robertson Charles W. Orlando, P.A., FL, Robinson, Jamie Harris & Seaman, County Atty., E. Asst. Volusia, Deland, FL, Defendant-Appel- lee. HATCHETT, Judge, and Chief

Before CLARK, Judges. Senior Circuit RONEY and HATCHETT, Judge: Chief (Caretta caret- loggerhead sea turtle (Chelonia ta) mydas) green turtle sea Shirley Reynolds appellants and Rita Turtles) challenge (collectively the Alexander district court’s dismissal their case Endangered brought Species pursuant to (ESA), §§ Act 1531-1544 (1) impres- They present: an of first issue sion, permit ex- incidental take whether the prohibition ap- ception “take” ESA’s activity purely performed to an a plies issuing upon mitigatory measure which the (2) permit; agency conditions the issue entity’s standing, governmental a whether pro- regulatory control of minimum wildlife inju- can redressable tection standards cause protected ry to wildlife in locations where possess sup- non-party governmental entities authority regulate exclu- plemental and/or enforcement; sively an issue control amendment, another pleading whether federally protected sea turtle should join party. Turtles as been allowed and remand for reverse all issues We proceedings. further

I. BACKGROUND In the United States Fish and Wild- (Service) loggerhead listed the life Service species and the sea turtle as threatened endangered species. green turtle as an sea 17.11(h) (1997).1 Adjoining C.F.R. locations, green endangered is “threatened.” 50 C.F.R. other sea turtle is Florida 17.11(h). along all coast Mexico. the Pacific lights most intense” or nearly forty miles in beachfront were the the Atlantic Ocean Florida, nesting attempts fre- greater beaches at “abort[ ] northeast turtles, (Quoting play quency lighted host to both humans sea areas.” United north-to-south, Serv., Dep’t From its beach communities & States Fish Wildlife Beach, Serv., Ormond-by-the-Sea, Interior; Dep’t Ormond include Nat’l Marine Fisheries Shores, Beach, Daytona Commerce, Beach Wil- Recovery Popu- Plan for U.S. Inlet, (Caretta bur-by-the-Sea, City of Ponce Town Loggerhead lation of Turtle caret- Smyrna ta) of New Beach and Bethune Beach.2 (1991), 6-7; at & United States Fish adult turtles come ashore Serv., Interior; Female Dep’t of Nat’l Wildlife deposit sand and return spring, eggs Serv., Commerce, Dep’t of Marine Fisheries later, to the ocean. Months when sea turtle Recovery Population Plan of Atlan- for U.S. hatchlings night, out of their shells at break (Chelonia (1991), mydas) tic Green Turtle they instinctively brightest crawl toward the 4-5.) exhibits, re- As the Turtles advanced light undeveloped On an on the horizon. ports of fatal “disorientations” and “miso- beach, brightest light re- moon’s (abort- rientations,” as well as “false crawls” beach, developed off surf. flection On attempts) that volunteer “Turtle nesting ed brightest light can be an inland artificial throughout Patrol” members had witnessed source. County. Volusia 8,1995, On June the Turtles instituted this response Volusia initial to Court the United States District lawsuit 12, First, complaint July was twofold. on of Florida under the for the Middle District Second, 1995, complaint. answered the ESA, provision of the citizen-suit 16, 1995,it an July applied to the Service for per- 1540(g)(1)(A). Seeking declaratory, permit. “interim” incidental See injunctive separate, a con- manent and —in 1539(a). hearing, a After the dis U.S.C. preliminary temporaneously-filed motion— granted part Turtles’ mo trict court relief, injunctive alleged ap- the Turtles injunction as to preliminary tion for a beach County, County of pellee Council Volusia driving, preliminary relief as to but denied (Volusia County) to ban Florida’s “refusal lighting. Logger artificial beachfront nesting driving during sea turtle sea- beach County Council Volusia head Turtle of light artificial and ban beachfront son Fla., 1170, County, F.Supp. 1178-83 adversely impact sea turtles” sources that (M.D.Fla.1995).3 prohibition, 16 the ESA’s “take”

violates 1995, 1538(a)(1)(B). en- quoted September the district court The Turtles U.S.C. (1) pretrial a recovery that: set deadline federally-issued tered order excerpts from their 1, 1995, “[ajrtifieial parties file for the to lighting of November plans beachfront (2) crossovers, parties; and closed motions to amend add streetlights, dune buildings, from (3) 1, 1996; February discovery on and light- of types other beachfront vehicles and April 1996. October trial for On in the disorienta- scheduled ing have documented been (in- 1995, for leave (loss the Turtles filed motion bearings) and misorientation tion complaint to orientation) original their add hatchling to amend turtles” correct (Dermochelys coria- sea turtle areas where leatherback “nesting females avoided County preliminarily enjoined Volusia Daytona the court Daytona Beach Shores are 2. Beach and permitting from one vehicles on beach most urbanized beach communities. until one hour after sunrise. hour before sunset any the beach discussion of We have omitted injunction "County excepted from the The court parties community because the of Silver Sands equipped yellow or ‘tur- vehicles which are specifically it in their briefs do not mention F.Supp. tle-friendly’ headlights.” may that Silver Sands anoth- record. It enjoined exception, the court Volusia Without Wilbur-by-the-Sea, unincorporated er area like Beach, any County permitting to enter the "from vehicle Ormond-by-the-Sea since and Bethune ’’ F.Supp. at 1182. zone.’ 'conservation one. appear to be exhaustive that list does not detail on re- parties can this minor resolve subsequently moved district The Turtles mand. preliminary in- its denial of court to reconsider lighting, junctive artificial beachfront relief Finding that beach reasonable likelihood turtles, the motion. green the court denied driving loggerhead but takes taking cea) liability protected cepted it from attaching proposed party, as a light through artificial beachfront sea turtles complaint and two exhibits amended (2) erred in ing; the district court pendency of whether During the the Turtles’ motion. standing lack amend, concluding that the Turtles motion leave occur in for takes that successfully trial until sue Volusia moved continue the municipalities non-party 1996, citing the imminence of the October Shores, Beach, Daytona Beach Ormond permit decision. Service’s Smyrna Beach that have Beach New discovery; to the close of Prior authority regulate in supplemental and/or summary partial judg- moved for dependently own artificial enforce their county that the Turtles argued ment. The (3) restrictions; beachfront takes in standing to claims for lacked assert court abused its discre whether the district municipalities regúlate non-party denying the motion for leave tion in Turtles’ lighting restrictions. On enforce their own original complaint to include to amend their granted the district court July party. Our sea turtle as leatherback (1) motion, concluding that: the Turtles two of review for the first issues standard connection between failed to show causal Endangered Areas de See Preserve novo. County’s regulatory acts and the al- Army History, Inc. v. United States Cobb’s (2) takes; leged the court lacked (11th Engineers, Corps alleged injury power without to redress Cir.1996) (“We questions law de review joinder municipalities as of those defendants. [.]”); Engineering Ass’n novo Contractors order, In the same the district de- Metropolitan County, Dade Fla. v. South amend, motion for leave to nied the Turtles’ Cir.1997) (“[Tjhis Court subject reasoning that: the court lacked — denied, novo.’’), standing de cert. reviews jurisdiction the sea matter over leatherback — U.S. -, L.Ed.2d - copy to locate a turtle since it was unable Co., (1998); v. Sears Roebuck & Forbus to sue letter that the Turtles’ notice intent (“A Cir.1994) district (2) referenced; the motion Turtles un- their grant deny or leave to court’s decision to (3) motion; filing and duly delayed in the discretion.”), amend is reviewed abuse prejudiced if County would be the Volusia denied, 1113, 115S.Ct, 906, 130 cert. 513 U.S. preliminary injunction to court extended the L.Ed.2d sea turtle whose include leatherback every spring. nesting season starts earlier III. CONTENTIONS County another tri- After Volusia obtained issue, As to the first the Turtles contend continuance, county al the Service issued County’s permit that incidental take Volusia permit on November incidental take only takes of authorizes incidental sea turtles day, County moved The next Volusia not driving, from from artificial beach- beach preliminary district court dissolve argue The that to fall lighting. front Turtles ease, injunction con- and dismiss the Turtles’ exception permit the incidental take within pro- tending permit that the mooted further prohibition, permis- the “take” the Service’s conceding per- Although ceedings. that express activity-specific. sion must be and through mit incidental takes authorized that the court Turtles also assert district that driving, the contended beach Turtles permission from could not infer such through takes did not authorize incidental conditioning permit lighting- on Service’s lighting. The district artificial beachfront mitigatory measures. related County and closed agreed with Volusia responds County that under the Volusia appeal the case. This follows. every light source, survey permit, it must study implement impacts their methods

II. ISSUES light that sea to correct sources misorient (1) County argues given whether turtles. Volusia three issues: address .We mitigatory requirements, concluding extensive those district court erred clearly contemplated that it ex- County’s permit ex Service incidental Volusia (2) they new any lighting; discovered information liability takes cepted from complaint; they original dur- causes after filed that artificial beachfront County un- would not been permit. Volusia ing the life duly prejudiced because the Turtles did issue, Tur- regard to the second With preliminary injunction ask to amend fairly trace the court can contend that tles tur- included the leatherback sea parties “harm” in the lighting-related turtles’ discovery. tle in Beach, municipalities Daytona non-party Shores, Daytona Ormond Beach and Beach County responds Turtles’ that the Volusia reg- Smyrna Beach to Volusia New inadequately of intent to sue referred notice claim that ulatory acts. Turtles Volusia “nesting” sea turtles as the leatherback regulatory au- County sufficient exercises beaches, being opposed county-wide ar- imposing minimum thority contends that “taken.” Volusia lighting restrictions and tificial beachfront possessed evidence of takes at least Turtles exempting Daytona Beach filing prior to their motion for three months any such restrictions. Beach Shores Finally, to amend. leave Furthermore, that the dis- the Turtles assert expense possible points to the “additional possesses power to redress trict court Turtles’ amendment would delay” To hold lighting-related all takes. cause. otherwise, posit, Turtles would violate person accepted notion that both whose IV. DISCUSSION species adversely protected affect actions body governmental that authorizes ESA, and a it is unlawful to “take” Under the violate the ESA’s person’s actions can endangered unless a or threatened wildlife prohibition. “take” statutory exception applies. (the 1538(a)(1)(B) (1994) prohibi- “take” municipalities Focusing only on the 17.31(a) (1997) (the tion); C.F.R. see 50 Shores, Daytona Beach Daytona Beach and prohibition applies to threatened as “take” County contends that takes those wildlife). endangered Defined broad- well as those munici- are traceable locations harass, harm, pursue, ly, means “to “take” independent regulatory and enforce- palities’ kill, hunt, shoot, wound, trap, capture, or According to Volu- ment acts omissions. 1532(19); see Babbitt collect[.]” 16 U.S.C. County, the Turtles should have sued sia Chapter v. Sweet Home Communities for of arti- municipalities they those believed 2407, 687, Or., 115 a 515 U.S. S.Ct. Great oc- lighting-related takes ficial beachfront (1995) (“Congress in- 132 L.Ed.2d 597 Additionally, Volu- on their beaches. curred broadly apply to cover indi- tended ‘take’ to authority County argues that its lack of to sia actions.”). It is purposeful rect well as as regulate lighting restrictions in and enforce commit, attempt soli- equally to unlawful “to court municipalities left the district those commit, cause to be commit- cit another to or alleged the “harm.” power to redress

without 1538(g). § ted” a “take.” U.S.C. Moreover, County contends that the Volusia relief, if requested granted, would Turtles’ “harm,” meaning within the “Harass” and effectively it to a new ordinance or pass force “take,” through regulation. defined of are one, separa- existing violating the amend its Interior, Secretary through the The of the powers. tion of Service, “harass” as “an inten- has construed issue, negligent act or omission which as- tional or the Turtles Regarding the third injury by of to wildlife “free- creates the likelihood should have that the district court sert signifi- as it such an extent annoying com- given” to amend their ly them leave patterns disrupt normal behavioral cantly as sea turtle plaint to add the leatherback to, include, breed- that, are not limited They which but contrary to the party. contend (1) sheltering.” C.F.R. ing, feeding or they sufficiently findings: district court’s 1533(d) 17.3; (delegating § § see 16 U.S.C. notified both the Service “Secretary”); authority to the regulatory the leather- their intent to sue for takes of of Home, at 2410 515 U.S. through artificial beachfront Sweet turtle back sea constructions, regula- including “harm” the Secretary n. 2 (noting & 1539(a). Service, § Interior, tion, As through the Director of in 16 can be found U.S.C. 17.3). § promulgated “may C.F.R. case, per- the Service to this relevant [it] as mit, and conditions under such terms beach of the Turtles’ artificial crux taking pro- “harm,” otherwise prescribe ... on shall allegations centered lighting front 1538(a)(1)(B) actually injures ESA] or by [the kills- wild “an act which hibited section may “significant to, include habitat life” that taking and not the if such actually degradation or where modification of, otherwise carrying out purpose injures by significantly im or wildlife kills 1539(a)(1)(B).7 § activity.” 16 lawful U.S.C. patterns, includ pairing essential behavioral receiving an incidental prerequisite As breeding, feeding sheltering.” ing or applicant submit permit, must take (the regulation).4 § At 17.3 “harm” C.F.R. “(i) plan specifies: habitat conservation stage, preliminary injunction the district impact likely result from such which will “overwhelming[ evidence that ]” court found (ii) will steps applicant take taking; what tur lighting “harms” sea artificial beachfront impacts, and mitigate such to minimize and on beaches. tles imple- funding that will be available Similarly, F.Supp. at 1180-81.5 sum (iii) steps; ac- alternative ment such what stage, mary judgment the district taking applicant considered tions such genuine dispute factual “as to wheth found a why alternatives and the reasons such controlled er artificial beachfront (iv) utilized; mea- being such other ‘taking’ responsible [issuing may require agency] sures that turtles.”6 pur- necessary appropriate being A. plan.” poses 1539(a)(2)(A).8 regulations further Service permit exception take The incidental applicant “complete regulatory to include and its instruct prohibition to the “take” taking recently upheld regula prohibition], for the incidental Supreme ‘take’ 4. The Court wildlife.”); endangered tory legitimate 50 C.F.R. 17.32 as a inter definition of "harm” wildlife); (same prohibition. regard to threatened pretation of ESA’s "take” Emergency Mgt. Chapter Sea v. Federal Home of Communities Hawksbill Turtle Babbitt Sweet (3d Cir.1997) Or., Agency, S.Ct. for a Great 2418, 515 U.S. ("[Biased ("[W]hen swimming [Vessup 132 L.Ed.2d 597 the turtles are structure, ESA, text, Islands], legislative history regulatory Bay, Virgin Commerce bears reasonably Secretary the intent responsibility, beach, ... the construed when the return to the turtles Interior."). Congress regulatory passes 'harm' to include when he defined baton degradation Commerce, ‘significant Secretary through habitat modification or the Nation- "). injures Service, actually wildlife.' kills or Fisheries issues incidental al Marine concerning permits certain marine-based ("En- C.F.R. 217.2 fish wildlife. See 50 also concluded that the same 5. The district court dangered species light- of fish or wildlife other than that artificial beachfront evidence showed by Pts. are [50 216-227] those C.F.R. ing covered "harasses” sea turtles. Secretary jurisdiction of the of the under the Interior.”); 222.23(a) (listing § species 50 C.F.R. findings. parties 6. None of the contests these jurisdic- "currently under the of fish and wildlife Commerce[,]” including Secretary of tion of the "Secretary” assigns responsi- the the 7. The ESA water”); are the while the turtles "sea turtles bility permits. issuing take See 16 incidental Kantor, Ramsey 96 438-40 1532(15) "Secretary” (defining § to in- U.S.C. Cir.1996) (discussing the National Marine Fish- Interior, Secretary Secretary the clude the of the of an incidental take eries Service’s issuance Commerce, Secretary Agriculture), and the of of for commercial in-river salmon fish- statement 1539(a)(1). § this case involves sea tur- Because ing). land, on the Fish and Wildlife Service served tles Secretary issuing agency the behalf of the as on 222.23(a) 8.Although § the refers to this document as ESA of the Interior. See 50 C.F.R. ("[T]he merely plan,” commonly juris- it is a U.S. and Wildlife Service has "conservation Fish plan.” a Com- the to "habitat conservation for sea turtles while turtles are referred diction with, 1539(a)(2)(A) ("[T]he e.g., land.”); § pare § U.S.C. Notice Director 16 [of 50 C.F.R. 17.22 Availability for Habitat may permit of of Final Handbook issue Service] the Fish Wildlife Planning activity prohibited by and Incidental Take Per- authorizing any Conservation otherwise Process, 17.21, Fed.Reg. mitting regulatory § the the version of [50 C.F.R. 17.22; § time.” activity sought to be autho- 50 C.F.R. C.F.R. description of the Additionally, § 17.32. common and scientific rized” and “[t]he sought covered species of the to be of permit

names authorizations on the face [t]he number, times, dates, age, weli as the forth permit, specific the which set places, taking, if 50 C.F.R. numbers and species, known[.]” of such methods sex 17.22(b)(l)(i)-(ii) wildlife); plants, (endangered kinds of or location of activ- § wildlife (threatened 17.32(b)(l)(iii)(A)-(B) ity, certain trans- § authorize circumscribed C.F.R. actions, wildlife). specifically permit or otherwise matter, strictly limited to be construed application Upon receiving complete permit interpreted and shall not be simi- must notice in package, publish the Service scope lar or related matters outside provide public Register Federal strict construction. opportunity to comment on whether the 13.42; § 50 C.F.R. see also C.F.R. permit. issue the Service should Finally, § applicant’s 220.42. failure (“The 1539(a)(2)(B); § § Di- 50 C.F.R. 17.22 comply and conditions of the “with terms publish shall notice in Service] rector [of permit” requires Service revoke application Register the Federal each 1539(a)(2)(C). § permit. 16 U.S.C. permit]. Each notice incidental take [an Turtles’ We turn first contention invite from interested shall the submission County’s permit days after the date of the parties, within 30 takings expressly through data, views, does authorize notice, arguments of written lighting. express artificial Such beachfront respect application.”); 50 C.F.R. with to the exists, authority, if it can be found with- see, 17.32(b)(1)(h); e.g., Receipt Notice of permit. gener- in the four corners Application for an Take Per- of an Incidental 1539(a) ally (issuing official must mit, U.S.C. Fed.Reg. (summarizing “prescribe” permit’s “terms and condi- expira- County’s application). Upon tions”). headline, introductory In its public period, comment the Ser- of the tion permit states that incidental take permit if it finds that: must issue the vice “authorizes incidental take within Service (i) incidental; taking will Beaches, Area or associ- the Defined (ii) will, applicant to the maximum ex- described in Condi- ated the activities mitigate practicable, minimize and tent below, [appellant loggerhead F tion sea taking; impacts of such turtle, turtle, green leatherback appellant sea (iii) adequate applicant will ensure turtle, (Eretmoehelys hawksbill sea turtle funding plan provided; for the will be imbrícala) ridley Kemp’s sea turtle (iv) taking appreciably will not reduce kempii) upon (Lepidochelys conditioned ] recovery of the survival and the likelihood implementation and conditions terms wild; species in the F, turn, lists of this Permit.” Condition (v) measures, any, required under types of incidental take: eleven “authorized” 1539(a)(2)(A)(iv) met; will be ] U.S.C. [16 following types F. of incidental take [and] herein, subject to the are authorized other as- has received such [the Service] validity of this Permit: continued may require the [habi- [it] surances as Harassment, injury, death and/or plan] implement- tat will be conservation eggs hatchlings re- sea turtle and/or ed!.] sulting public emergency 1539(a)(2)(B); § 50 C.F.R. safety driving over vehicles and/or 17.32(b)(2).9 17.22(b)(2); 50 C.F.R. unmarked/unprotected sea turtle designated in traffic nests located permit “may authorize a An incidental take area(s) transactions, lane/driving ramp [illegi- or transaction, a series or single of area(s) County on Beaches. specific period ble] of over a a number activities 13.21(b)-(c) by (incorporated reference into 50 disqualifying applicant also be must free of 9. factors, 17.22(b)(2), 17.32(b)(2)). prior §§ such criminal or civil violations C.F.R. See 50 C.F.R. federal wildlife statutes. result- County Beaches Areas of the Harassment, injury, death to 2. and/or op- ing from with vehicles hatchlings re- collisions eggs sea turtle and/or pursu- by general public emergency safe- sulting from erated and/or driving over un- of this ty to terms and conditions vehicles ant marked/unprotected turtles permit. within the Defined nests located Harassment, injury, death to 9. and/or Area. attempting to nesting turtles female Harassment, to injury, death 3. and/or Areas, resulting nest the Defined hatchlings re- eggs sea turtle and/or poten- physiological stress of emergency safe- sulting from and/or increasing number of false tially ty driving marked sea over vehicles season, nesting during the or crawls the De- nests located within turtle vehi- compaction due to from sand Areas. fined operating within Defined cles Harassment, injury, death 4. and/or con- pursuant to the Area terms hatchling emerging from sea turtles permit. of this ditions nests unmarked/unprotected Harassment, injury, death of 10. and/or caught ruts subsequently in vehicle hatchlings in un- sea turtle and/or no rut removal has areas where marked/unprotected nests due to place. taken crushing by activities asso- physical Harassment, injury, death 5. and/or (1) marking estab- with ciated stranded, adult, post- hatchling, Zone in the lished Conservation hatchling sea turtles [sic] washback Areas of Transitional Urban resulting with emer- from collisions (2) Beaches; County placement safety operat- gency vehicles and/or receptacles trash Area; ing Defined such within the (3) Beaches; placement portable may vehicles also disorient/harass [habitat as outlined toilets hatchling sea turtles adults and/or plan]; and beach conservation headlights while in motion or activities, including maintenance minute, or rest for less than one ramp maintenance. during nest- adult sea turtles harass Harassment, injury, 11. death of and/or ing activity. eggs sea turtle nests laid and/or Harassment, injury, death to

6. and/or nest- outside the normal sea turtle attempting turtles adult female sea season, through May ing October in the nest Transitional and/or monitoring/mark- a nest when Beaches Areas of Urban ing program place. resulting 7 p.m., 8 a.m. and between added.) elev- (Emphasis Indisputably, these operat- from collisions with vehicles only types of take relate general public. en incidental by ed access on Volusia beaches. vehicular Harassment, injury, death to and/or eleven authorized activities listed None hatchling emerging from sea turtles F concerns artificial beachfront in Condition crawling from the nest and/or lighting men- lighting. The form of Areas of Transitional Urban and/or headlights. F is vehicular tioned in Condition Beaches to ocean resulting 7 p.m., 8 a.m. and between majority Although the conditions operat- from collisions with vehicles driving, concern beach general public pursuant ed artificial beachfront permit does address permit. and conditions of terms permit, lighting. G the entitled Condition Measures,” fif- Harassment, “Mitigation/Minimization lists injury, death and/or categories “measures be em- [to] teen post-hatchling sea turtles that by the Permittee to ensure that take ployed and entered emerged from nest catego- mitigated.” minimized and These by having washed the ocean been general following fall head- ries under the back onto Transitional Urban and/or (1) Manage- adequacy of related enforcement Species Beach ings: “Protected Areas”; (2) protecting nesting Removal programs “Tire ment Traeks/Rut (3) Delineation”; “Driving Program”; hatchling Zone and sea turtles from (4) within “Operation lighting. of Non-Public Vehicles beachfront Species and Zones Protected Conservation Develop an for approach d. address- Areas”; (5) Management “Placement Beach lighting ing issues for each coastal (6) Facilities”; Portable Maintenance of and lighting category. Where modifi- the Conser- and Placement of “Maintenance impractical cost cations are (7) Markers”; Oper- “Nighttime vation Zone prohibitive, develop mitigation Vehicles”; EnforeemenVSafety of Law ation yield guidelines greater will (8) Events”; (9) “Lifeguard “Special Beach ratios. cost/benefit (10) Management”; Station “Commercial Develop protocol e. a for detailed Fishermen”; (11) Ramp “Beach/Access along those lighting evaluations (12) Cleaning”; and “Standards Maintenance light- sections coastline where (13) Evacuation”; for Beach “Artificial ing modifications are feasible (14) ”; Lighting “Off-Beach Beachfront cost effective. Plan”; Manage- “Species Parking added.) Program.” (Emphasis Most ment lighting f. If it is determined that categories lengthy contain subcate- these be cost effective ordinances will gories as well. practically implement- can be mitigation to artifi- measures relative currently exempt in the areas ed than, lighting occupy less two cial beachfront Daytona Beach and twenty-five pages of Volusia out of Shores, Beach then coordinate permit: development of new ordinances Lighting, municipalities. Artificial Beachfront those Management Lighting i. Beachfront g. Develop assisting for program [illegible By date] Plan. November bring- property coastal owners in Permittee shall have devel- lights compliance lo- ing into with Management oped Lighting Beach Depart- or Florida cal ordinances Fish Ser- Plan. The U.S. and Wildlife ment Environmental Protection Light- approve vice the Beach must guidelines. ing Management prior Plan Develop generic public aware- h. scope work implementation. The promoting program for tur- ness Management Lighting Beach tle-friendly voluntary lighting and include, Plan shall but is not limited compliance light management with to, following items. guidelines. Identify map jurisdictional a. Develop long-term program i. along the Volusia boundaries lighting evalua- annual maintenance County coast. tions. of the Categorize coastal b. areas respect existing scope developing The time frame for Catego- lighting environments. Lighting Beach Man- of work type ries consider and extent will year adop- agement Plan is one amount upland development, plan]. conservation [habitat tion light- intensity of beachfront Management Lighting Beach densities, nesting

ing, turtle during implemented Plan will be expense re- effort and relative years following and third second light- quired appropriate to meet Lighting adoption. inventories will ing standards. year first of im- during the conducted The annual plementation. adequacy of exist- c. Determine program will be initiated maintenance ing codes within ordinances and year during after [habitat the third jurisdiction each as well any language contain G does plan] adoption, a Condition conservation .not turtles expressly authorizing takes of sea for mitigation plan uncorrectable lighting like that through artificial beachfront problems implemented be lighting -will F. Condition contained within years during the and fifth fol- fourth adoption. lowing readily ap- foregoing, light of permit ex- take parent 1, 1997, Surveys. By April Lighting ii. haustively all authorized activities within lists develop, shall with further Permittee mitigation measures F and all Condition assistance from the consultation and to driv- G. Activities relative within Condition Fish and Service and U.S. Wildlife con- ing both on the beach are mentioned in of Environmen- Department Florida beach- .to artificial ditions. relative Activities Protection, methodology a for im- tal however, lighting, front mentioned citing light plementing and sources structure, permit’s G. Given the Condition Permittee that disorient sea turtles. authority to sea turtles express take surveys lighting will conduct through lighting artificial beachfront —if (cid:127) compile for lists of infractions Code memori- so be Service had intended —would Enforcement action or referral disposi- This alized in Condition F. absence the U.S. Fish and Wildlife Service. Accordingly, lacks the tive. Volusia Lighting surveys will conducted be permission to take sea tur- express Service’s minimum, monthly, April at a from incidentally through tles artificial beachfront year. through October 31 of each lighting. County-owned Operated iii. County argues even if survey Lights. The Permitee will express permission, it it lacks the Service’s lights oper- owned or all beachfront permission to implied take has Service’s identify ated incidentally through turtles artificial compliance not in those that are lighting the Service ex beachfront because guidelines. The Permit- with State permit pressly on Volusia conditioned the individual tee will ensure lighting- implementation detailed lights responsible surveying argument mitigatory measures, This related Fish and coordinates with U.S. impression in presents an issue of first Service concurrence Wildlife circuits, and other the incidental whether Any lights results. (16 1539(a)) exception § permit take U.S.C. problem for sea deemed to be (16 prohibition to the “take” U.S.C. survey will turtles as a result 1538(a)(1)(B)) to, excepts applies and thus compliance by brought into be liability, activity performed from County. The U.S. Fish and Wild- upon purely mitigatory measure which to con- life Service will be notified permit. conditions the We hold that Service survey compliance; to ensure duct it does not. County personnel or their regula- text and the Service’s ESA’s present be for the contractor will every provide tions indication that incidental survey. All of the above measures permission express take' and activi- must place prior May will ty-specific. excepted liability, To be Training. By the ESA mandates that the “take” be “inci- Light Management iv. 1, 1997, carrying an ... dental to out of July the Permittee will es- 1539(a)(1)(B)(empha- activity.” training manual hold tablish added). Moreover, addressing Permittee-sponsored sis re- at least two plan, workshops quirements of the habitat lighting and beach conservation on semantically separates the “ac- provide crime to information ESA applicant’s compliance inten- tion[]” issue from effects “mitigate” taking. Compare protect- tions Code with Volusia (“what 1539(a)(2)(A)(iii) occur- alternative ing sea turtles crime U.S.C. taking applicant actions to such consid- rences. added) ered”) strictly interpret- construed and shall not be (emphasis unth 16 U.S.C. (“what 1539(a)(2)(A)(ii) permit applicant ed to similar or related matters out- steps the § scope the mitigate im- side of strict construction.” to minimize and such will take added). added); § generally (emphasis C.F.R. 13.42 see also 50 pacts”) (emphasis (incidental 222.22(d) permits § Species, Inc. v. C.F.R. take Endangered Friends of (9th Cir.1985) Jantzen, the National Marine Fisheries Service semantically activity and (separating issues must “contain such terms condi- sought an incidental tions the Assistant Administrator deems applicants which the necessary ... development “project” appropriate, including permit take —from —a ”) taking (empha- authorized method mitigatory [t]he measures —“restrictions” of added). Furthermore, development). sis before permit, take Service issues incidental publica informal Even the Service’s fact-finding official must resolve at least two applicants specifically tion advises to describe (1) statutorily questions: distinct whether likely ... are “all actions ... result takes; activity purposeful free of will be permit in incidental that the holder take” so (2) mitigate applicant will whether the applicability of the inci “can determine the Compare effect. the authorized takes’ authorization to the dental take activities (“the 1539(a)(2)(B)(i) taking § will be U.S.C. they United States Fish & added) undertake.” incidental”) (emphasis with 16 U.S.C. Serv., Interior; Dep’t Wildlife Nat’l 1539(a)(2)(B)(ii) (“the ... applicant will Serv., Commerce, Dep’t Marine Fisheries mitigate impacts of minimize and such Planning Habitat Conservation Handbook added). taking”) (emphasis added). (Nov.1996), (emphasis 3-12 to 3-13 at dividing statutory line between activi- warns, Otherwise, “broadly de Service sought permitted mitigatory ties to be generally types ... fined of activities would is further reinforced in the Ser- measures Handbook, at 3- not be authorized.” Habitat regulations. requires ap- The Service vice’s added).11 (emphasis completely activity “the plicants to describe application content of sought authorized.” 50 C.F.R. be 17.32(b)(l)(iii)(A) 17.22(b)(1)®, correspondence with the Service reflects (emphasis §§ 222.22(b)(4) regulatory added); statutory dividing line C.F.R. see also 50 (incidental mitigatory activities and permit applications to the between authorized take application must in- In its initial Marine Fisheries Service measures. National Service, County “completely] des- description proposed clude a “detailed added).10 ”) activity sought to be autho- (emphasis ... activity cribed] The inciden- turn, “may rized” as “vehicular access Volusia permit, in authorize tal take transaction, transactions, (Citing C.F.R. single beaches[.]” or a series 17.22(b)(1)®.) follow-up A §§ letter from 50 C.F.R. [.]” a number of activities added). acknowledging receipt of the 17.22, Finally, (emphasis §§ Service official 17.32 application summarized that Volusia emphasizes that the “authoriza- the Service take sought permit to cover incidental permit which set forth “a tions on the face may occur on Volusia taking ... ... are of sea turtles that specific methods of (1) mitiga permit, Although take the take results Marine Fisheries Ser- the National if: case, permit specifically in ... described in vice did not issue the this tion measures regulations substantially plan]; those of similar to such activi [habitat conservation directly place Service. Fish and Wildlife with ties are associated time permit." Habitat activities authorized under Handbook, publi at 7-2. The informal Service's language recognize We that some in course, are, binding authority. See cations publication potentially contradicts our formal Commissioner, Farms, 755 F.2d CWT Inc. v. being holding. posits that "[w]hat The Service denied, Cir.1985), 477 U.S. cert. 803-04 903, permit is [an take] inci authorized (1986). We take, S.Ct. 91 L.Ed.2d 562 in the dental not the activities result Also, they Handbook, excerpts unpersuasive since also find these take." 3-12. Habitat provisions publication's with other conflict opines in delib Service that “actions that result regulations. duly-promulgated and the Service’s under an incidental erate take can be conducted 1536(b) ] and are [16 under U.S.C. beaches as a result of vehicular issued county (Emphasis require- compliance access beaches.” add- conducted ed.) follow-up Ramsey, Another letter from the Ser- ments that statement.” pointedly expressed that vice at 442. Because the incidental state- Oregon for that important “clearly anticipated” it is to state the record that and ment seeking fishing the of Volusia is not inci- Washington regulate would the authority for marine tur- salmon, dental take unprotected the court held that those resulting lights operat- or tles from owned not for of endan- states were liable takes by any County. purpose ed the The salmon that “intermin- gered and threatened in the habitat conservation such discussion indistinguishable are gle with and all but provide mitigation im- plan ... is to Ramsey, F.3d unprotected from” salmon. pacts resulting to marine sea turtles from take permitted activities. [incidental County argues that the Service permit] application you requests submitted resulting ar- “clearly anticipated” takes authority spe- incidental take for sea turtle lighting beachfront in the incidental tificial beach-driving cies from associated ac- and permit, just issuing agency in take as the only. tivities resulting Ramsey “clearly anticipated” takes added.) Finally, (Emphasis responsive in a regulations in fishing the inci- from salmon Service, county to the an letter assistant at 442. We dental take statement. F.3d attorney County is reiterated that “Volusia matter, not convinced. As a threshold are seeking an Incidental Take Permit for vehi- no that Ramsey gave court indication the However, [sic] cles access the beaches. Oregon’s Washington’s fishing salmon lighting addressed has purely mitigatory regulations served as mea- throughout permit application as a miti- sures, as does Volusia artificial added.) gating (Emphasis factor.” beachfront activities. Contrary County’s, position, no to Volusia published purports suggest case law even event, any governing In the law incidental purely mitigatory fall that measures within take statements under 16 issued U.S.C. scope permit excep- the the take incidental 1536(b), statutory Ramsey, § in the source 1539(a). tion, § Ramsey 16 U.S.C. governing from the law incidental differs Kantor, the Ninth Circuit addressed whether permits take issued U.S.C. under Oregon Washington the States 1539(a), statutory § in case. the source agencies applicants neither federal nor were generally Ramsey, 96 F.3d at 439. an statement issued under incidental take First, issuing prerequisite agency’s the find- 1536(b) may lawfully § take 16 U.S.C. fedei’- permit ings are not the same. To inciden- ally protected obtaining an fish without first 1536(b), taking under the tal 16 U.S.C. permit under U.S.C. conclude, issuing pertinent agency must 1539(a). (9th Cir.1996).12 part, that: question answered the the affir- mative “provided the actions in question ^[1] the agency action will not [likely jeop contemplated pro- by an incidental take statement ardize the continued existence of explained Supreme recently consequence, dent avoid 12. The Court alternatives to exception: agency provide incidental take statement the Service must with a (known written statement as the "Incidental agency it [federal] If a determines that action ”) specifying "impact Take Statement proposes may adversely to take affect a listed taking species,” any such incidental species, engage it must in formal consultation prudent "reasonable measures that Service, delegate with the Fish Wildlife necessary appropriate or [Service] considers Interior], Secretary after which [of setting impact,” and "the minimize such forth agency provide the Service must with ... must (the terms and conditions be com Biological Opinion) written statement ex- agency plied imple ... Federal plaining proposed action affect how will [those measures].” ment species Biologi- or its [I]f habitat.... Spear, U.S. Opinion agency Bennett v. cal concludes action (citations jeopardy 137 L.Ed.2d 281 omitted will not result modification, or adverse habitat added). pru- emphasis or if it offers reasonable and wild”); (proposed § 402.02 ac- in the 50 C.F.R. result destruction species or teeted “jeopardizes” species at of its critical habi- tion issue modification or adverse ], jeopardize protected species”) “reasonably expected, directly or (“likely tat can be pru- agency] offers reasonable and indirectly, appreciably or the likeli- [the reduce Secretary be- alternatives which recovery dent of a hood of both survival protected spe- [jeopardize lieves would not by reducing re- species the wild listed cies]; [and] numbers, production, of that distribution 1539, however, Only endangered species taking species”). of an [2]the species requires finding mitiga- incidental to expressly or a threatened future [likely jeopardize agency such, action holding Ramsey— will As tion.14 species][.] protected nonapplicant’s excepted actions can that a they contemplated if are liability from take 1536(b)(4) (incorporating by § ref- 16 U.S.C. fair- in an incidental take statement —cannot 1536(a)(2)).13 permit § 16 U.S.C. To erence ly mitigatory apply read to measures be taking incidental under 16 U.S.C. an contemplated permit. in incidental take 1539(a), however, an issuing § must agency the find, 96 F.3d at 442. that: See pertinent part, in

mitigate tion] the likelihood of ^[3] quate of the ^{[4] [1] [2]} the the the plan species in the funding taking taking the applicant applicant will ensure that will be impacts will will not for the provided; the survival will be wild; incidental; such appreciably reduce [habitat ... minimize and and taking; and conserva- recovery ade- incidental holders der section of 16 U.S.C. U.S.C. specified compliance with the terms and conditions § A second 1536(b)) § or 1539(a)) and an incidental take beneficiaries important [an incidental take 1536(o), “any § 1536(o), lies statement in difference between which of the former. Un- the broad take statement is- taking that is applies (16 permit language only U.S.C. (16 ^[5] [other measures that issuing sued under 16 U.S.C. § 1536(b) ] shall not be may be agency require] met[.] will taking of the prohibited to be a considered 16 species concerned.” U.S.C. 1539(a)(2)(B) by (incorporating § 16 U.S.C. 1536(o)(2).15 § provision applies No similar 1539(a)(2)(A)(iv)). § 16 reference U.S.C. taking inci- “any” compliance with an course, Both, require finding a that conditions, permit’s and take terms dental “inci- sought to authorized will be take be mitigatory The closest including measures. Both focus on the ultimate dental.” also appears provision in section 1539 analogous species. take on the effect of incidental issuing 1539(a)(2)(B)(iv)(“the only in the converse: official taking § See 16 U.S.C. if permit] take he [an revoke “shall appreciably not reduce likelihood will permittee complying is recovery that not species and of the finds the survival case, express finding applicant finding that "the a is same as an relevant to this third 13. Not mitigate impacts required "a mammal is 16 if marine involved.” ... minimize and of” will 1536(b)(4)(C) 1539(a)(2)(B)(ii) (incorporating by § § refer- U.S.C. 16 U.S.C. the incidental take. 1371(a)(5), § added). section Ramsey gave ence (emphasis no Act, U.S.C. Marine Mammal Protection Oregon’s Washington’s salm- indication 1361-1407). §§ regulations prudent "reasonable and on were issuing upon agency condi- measures” which issuing agency must condition It is true statement. tioned the incidental take implementa- take statement the incidental prudent quasi-mitigatory "reasonable and tion of broad, 15.Construing statutory language "necessary agency deems that the measures” Ramsey incidental take state- court extended impact appropriate to of the inci- minimize" ap- protection that were neither ment to entities species. U.S.C. take on the dental Ramsey, agencies. F.3d plicants nor federal 1536(b)(4)(ii); e.g., § Center Conserva- Marine ("[Section 1536(o)(2)] indicates that Brown, at 441 F.Supp. 1148-49 v. tion agency, ap- taking private a federal (S.D.Tex.1996) pru- (discussing "reasonable —whether complies party with the plicant, or other keep sea turtle mortalities dent measures” to —that take state- set forth in the incidental exceeding conditions established in an inci- the levels This, however, statement). permitted.”). is not the ment dental take (16 1539(a)) § if permit.” exception even some U.S.C. terms conditions of with the 1536(o) 1539(a)(2)(C).16 suggested § section U.S.C. courts scope of the incidental to broaden serves prohibitions Finally, the that underlie (16 U.S.C. exception take statement unique. The exceptions incidental take are 1536(b)). at 441 Ramsey, 96 F.3d See prohibition that underlies the incidental take complies (“[A]ny taking ... with the exception applies to federal statement take forth in the incidental conditions set upon duty agencies, imposes them generally permitted.”). statement statement-issuing agency consult' with the Squirrel Espy, Red Graham Mount proposed action and ensure that their will (9th Cir.1993) (“Under [16 likely “jeopardize continued existence of 1536], may takings limited U.S.C. any endangered spe- species or threatened incorporated permitted they into the cies or result in the destruction or adverse and conditions’ of Reasonable habitatf.]” 16 ‘terms [critical] modification clause). 1536(a)(2) (the up in connection “jeopardy” Prudent Alternative drawn U.S.C. Biological Opinion.”). prohibition underlies the incidental the issuance with federal, permit exception applies has been The fact remains that no court state, actors, private and creates no local facing today. presented To issue us duty to similar consult. See U.S.C. sure, protecting seri troubled wildlife is be 1532(13), 1538(a)(1)(B) (the prohi- §§ “take” Valley Auth. v. See Tennessee ous business. bition). “jeopardy” Additionally, the clause Hill, 153, 2279, 174, S.Ct. 57 437 U.S. 98 fish, plants, and applies protected to wildlife (1978) (“[T]he history, language, 117 L.Ed.2d prohibition applies only the “take” whereas [Endangered Species the structure of and protected 16 fish and wildlife. See U.S.C. beyond Congress indicates doubt that Act] 1536(a)(2), 1538(a)(1). 1532(16), §§ Conse- afforded endangered species intended be quently, re- especially some those activities — highest priorities.”); v. Lin the of Strahan likely lating to result to land use —are more (D.Mass.1997) non, 581, F.Supp. 967 618 “jeopardy” a “take.” See than Sweet (“The Endangered Species powerful Act is a (“Section Home, 2415 [16 115 S.Ct. at 7 statute.”). substantially unequivocal broad, imposes § a 1536] U.S.C. affirmative Consequently, permits purport to that excuse duty avoid habitat modifications adverse must clear on their face. takes of wildlife be § § repli- not 1539] that 9 does [16 U.S.C. (“The § See 50 C.F.R. 13.42 authorizations cate, limit § 7 its admonition to does permit permit face a which ... on the of that kills in- actually habitat modification strictly wildlife.”) limited (internal specifically matter[ ] to be jures quotation marks construed[.]”); § see also 50 C.F.R. 220.42. omitted); Doyle, J. and citations Andrew case, Secretary permitted]” In this “the Note, Sharing Home Sweet Home with Fed- only driving of incidental to takes sea turtles erally Wildlife, Protected 25 Stetson L.Rev. 1539(a)(1). (1996) (“[I]t Ac 889, the beach. U.S.C. 911 n. 174 is easier ”). cordingly, erred in the district court dismiss ‘jeopardize’ than to ‘harm.’ These it is claim that artificial against ing militate the Turtles’ beach differences further broaden- scope lighting take takes sea turtles.17 ing permit of the incidental front Ramsey "comply" with terms noted do not and conditions 16. We are aware that the court County’s permit. incidental take of Volusia private complies party that with “[i]f any requirements permit, of the incidental agree contrary We court district that taking species will not violate [16 of listed contention, County’s cursory doc- to Volusia "the n 1538(a)(1)(B)]." at U.S.C. 439 n. primary jurisdiction inapplicable of to the trine however, court, added). (emphasis framed Loggerhead present Turtle ’case." broadly. support unpersuasive this too No dicta Fla., County, F.Supp, Council Volusia of au- notion can be drawn from this (M.D.Fla.1995) (citing United States cited, Ramsey thority R.R., 59, 63-64, 77 v. Western 352 U.S. Pacific 1539(a)(1)(B). Wisely, aban- (1956)). Volusia S.Ct. L.Ed.2d previous reliance on this footnote. doned its summarily reject ar We also accurately re- Even if this footnote somehow gument mitigatory measures render moot law, seek, any remedy possibly have found that takes of could flected the we that the Turtles through lighting total blackout on beach. The artificial beachfront short turtles (internal quotation marks and alterations B. omitted). hand, standing is not On the other ‘controversy’ satisfy ‘case’ or “To injury merely alleged because defeated III, ‘irre requirement of which is the Article fairly traced to actions both can standing, minimum’ of constitutional ducible parties generally Lu non-parties. must, plaintiff generally speaking, demon (injury jan, at 112 S.Ct. 2130 504 U.S. fact,’ ‘injury he has strate that suffered “independent” third cannot be the result of ‘fairly injury is traceable’ to action). party defendant, injury and that the actions of likely a favorable deci will be redressed are not to trace to Coun- We asked 154, 117 Spear, sion.” Bennett v. 520 U.S. ty unincorpo- alleged Turtles’ “harm” in (ci S.Ct. 137 L.Ed.2d Wilbur-by- rated beach communities like omitted). found tations The district court the-Sea, Ormond-by-the-Sea Bethune satisfy Turtles failed both Beach, incorporated Town well as the “redressability” prongs “fairly traceable” and Indisputably, Inlet. Ponce complain standing doctrine possesses regulatory and en- exclusive local lighting “harm” that artificial beachfront artificial beachfront forcement control over municipalities Day them within the causes Instead, we are lighting those locations. Beach, Shores, Daytona tona Beach Ormond to review a “causal connec- asked whether mu Smyrna New Beach. Those Beach and County’s regula- exists between Volusia tion” parties nicipalities to this case—each —not alleged “harm” tory action and the Turtles’ possess degree regulatory least some Beach, municipalities within the pub authority and enforcement control over Shores, Daytona Beach Ormond Beach lic artificial beachfront private Motley, F.2d at Smyrna Beach. New within their borders. question, To we examine answer County’s artificial charter its

Volusia lighting ordinances. beachfront ex fairly “The traceable element requires pro- County’s charter it to Volusia plores the causal connection between n through county-wide the environment tect alleged harm.” conduct and the challenged ordinance: Corp. Morley, v. 867 Deposit Ins. Federal (11th Cir.), denied, minimum The council ... shall establish 1381, cert. 493 1388 (1989). protection 75, ... of 819, 110 standards for 107 L.Ed.2d U.S. S.Ct. by .... ordinance. Such on environment Essentially, requirement “this focuses apply ... all the shall within standards line of causation between whether the unincorporated of incorporated areas illegal injury is too attenuated.” conduct (internal a conflict County. In the event of quotation Volusia F.2d at 1388 Morley, 867 by omitted). any ... established causal between standard and citations marks ordinance, County ordinance inju County if the may link “too attenuated” become municipality to the prevail independent shall within ry action “the result is conflict; however, provided, Lu extent party before court.” some third 555, municipality body of each governing Wildlife, 504 jan U.S. v. Defenders of (1992) may more restrictive standards 560, 2130, establish L.Ed.2d 351 through artificial permission to sea turtles mitigatory take measures —that of these effectiveness lighting. generally United States See dispute beachfront with record evidence —is the Turtles 1044, (D.Mont. Onge, F.Supp. v. St. at trial. can be resolved issue that (”[T]he 1988) jury to instruct County erroneously court intends Finally, contends Volusia government prove elements attempt must three that the appeal to circum is an that the Turtles’ Act, de in order for the beyond a reasonable doubt U.S.C. Procedure the Administrative vent first, the defendant 551, be that group in fendant to convicted: seq. Unlike the environmental et United Friends, knowingly within the took an animal challenge Ser do not the Turtles second, States; grizzly was a the animal permit. take of the incidental vice's issuance third, bear; defendant did not that the The Turtles assume Department of permission from the United States permit con validity decision in of the Service’s added). bear.”) (emphasis Interior to take the tending lacks the Service’s that Volusia protec- County’s of Ordinance 89-60 municipality enforcement within environment. within them borders. tion Charter, Fla., County, Home Rule Volusia light- allegedly “harmful” majority II, (1989); generally City see Art. 202.4 however, existing develop- ing, stems Volusia, Ormond Beach lighting. The Minimum public ment and D.C.A.1988) (Fla. n. 5th So.2d 303 & 3 Turtle Standards for Sea Environmental (discussing “charter counties such Volu- develop- existing pertaining to Protection provides noting charter “[t]he sia” and apply at all public lighting do not ment and county’s prevail if it ordinances Daytona Beach Beach and protecting the envi- minimal sets standards Fla., County, Volusia Ordinance Shores. See by regulating or air or prohibiting ronment 89-60, (amending § 2 No. 88- No. Ordinance re- destruction of the pollution water 606). 602, 604, VI, two §§ Those Art. gen- county belonging to the sources of the beaches, according municipalities’ to Volusia (internal quotation marks omit- public”) eral ordinance, like- are not “utilized or ted).18 nest- ly sea turtles for utilized[] aim, in To this December Fla., County, No. ing[.]” Ordinance 89-60, entitled Ordinance enacted 88-15, 89-60, § (amending No. Ordinance “Minimum Environmental Standards for Sea 602). VI, According to the Turtles’ Art. Fla., County, Turtle Protection.” Volusia complaint permit, and the 89-60, Seeking § 2 Ordinance No. municipality any lighting neither has enacted light generally to the artificial “minimiz[e] restrictions. beaches[,]” the ordinance classifies incorporated As to other areas Volusia (1) categories: lights into restrictions three County, Minimum Environmental Stan development; lights new associated with pertaining to Turtle Protection dards Sea existing development; and associated with existing development lighting ap public (3) lights publicly owned. municipality proposed ply unless submits Fla., 89-60, § 2 County, Ordinance No. county of its own that the council ordinance VI, 88-15, (amending No. Art. Ordinance compliance to be in with Ordi determines (1988)). 603, 604, §§ The substance Vo nance 89-60’s minimum standards. See concern us of these restrictions does not 89-60, Fla., § 2 County, No. lusia Ordinance however, important, today.19 What 88-15, VI, (amending No. Art. Ordinance apply. ordi- where restrictions 609). 604, 606, New §§ Ormond Beach and development ap- nance’s restrictions on new Smyrna municipalities that Beach are two timely county-wide, municipality ply unless county-approved their own version of enforce proposed submits a ordinance of its own that 89-60, as amended. Ordinance county be in council determines to com- County artifi- Volusia later enacted own pliance with Ordinance 89-60’s minimum ex- lighting cial beachfront ordinance that County, Fla., Ordinance standards. Volusia minimum ceeded the standards established 89-60, (amending § 2 No. Ordinance No. 88- 89-60, 609). as amended. Volusia VI, Ordinance §§ All municipali- Art. Fla., 90-22, County, § Beach, Ordinance No. (Daytona Daytona Beach at issue ties 88-3, (amending Art. Ordinance No. Shores, Smyrna Ormond Beach and New 1201-1206). XII, Beach) ap- §§ Ordinance 90-22 have elected to either enact and en- unincorporated plies as beach communities complying ordinance of their own force County Wilbur-by-the-Sea, development submit to Volusia like Or- to new or Volusia brief, County's County further to the Turtles’ Volusia Volusia charter became effective 18. January amended those minimum standards in an ordi- August nance dated 1995. See Volusia Coun- County The record reveals that Volusia later Fla., ty, sake, simplicity's Ordinance No. 95-30. For immediately repealed rea- Ordinance 89-60 will refer to the current version of we changes, dopted, with some "turtle-friendlier” Environmental Standards for Sea Tur- Minimum “Minimum Environmental Standards for Sea 89-60, as amend- tle Protection "Ordinance as Fla., County, Protection.” See Volusia Turtle ed.” 95-10, According Ordinance Nos. 95-18 activity Beach, by either of way mond-by-the-Sea Bethune as no authorized Inlet, Ponce resulted incorporated municipalities Town of that could have as the those well Dayto- Exempted from Ordinance 90-22 in harm to turtles.”20 Beach, “any Daytona Beach Shores na

incorporated areas of Volusia which they agree We with the Turtles the ... Minimum Environmen- adopted j^yg gjjo^ causal connection to a sufficient Protection[,]” for Turtle Standards Sea tal County liable seek to hold Volusia for Smyrna New as Ormond Beach and such “harmfully” inadequate regulation of artifi Fla., County, No. Ordinance Beach. Volusia lighting non-party in the mu cial beachfront 88-3, 90-22, § No. (amending Ordinance Beach, Daytona Daytona nicipalities of 1202). XII, comparison § with Ordi- Art. Shores, Beach and New Beach Ormond amended, 89-60, 90-22 nance as Ordinance First, County pos Smyrna Beach. Volusia example, For appears “turtle-friendlier.” primary authority regulate artifi sesses lights requires 90-22 most to be Ordinance lighting county-wide. The cial beachfront p.m. than 8:30 off sunset rather turned grants county expressly Volusia charter during nesting Compare Volusia season. arguably authority —and 90-22, Fla., County, No. Ordinance duty- minimum standards ... “establish —to 88-3, XII, Art. No. (amending Ordinance ---- protection the environment for 1203-1205) Fla., County, §§ ivith Volusia Or- the in by “apply within all ordinance” 95-18, §§ 4-6. dinance No. unincorporated corporated and areas Vo- theory of causation twofold. The Turtles’ Fla., County, County.” Home lusia First, they that Volusia contend II, Charter, Art. 202.4. Coun Rule Daytona Daytona Beach and exempting of, just ty It mandated a floor did that. restrictions, lighting from all Beach Shores is, minimum, lighting standards that Ormond including Minimum Environmental Stan- Smyrna imple Beach must Beach New Protection Ordinance dards Sea Turtle Similarly, on an ment and based enforce. 89-60, amended, as serves as a cause-in-fact (in 89-60, finding both Ordinance ordained municipalities. two of their “harm” those 90-22) amended, that sea as and Ordinance Similarly, they 89- contend Ordinance likely Daytona turtles do not nest or nest amended, Ordinance 90-22 are Shores, Daytona Beach Beach causally their “harm” in Or- connected to that no restrictions decided Smyrna Beach Beach and New since mond apply County, should to them.21 See Volusia municipalities retain they those allow 89-60, Fla., (Daytona Ño. Ordinance Minimum Environ- allegedly deficient are not Beach and Beach Shores Turtle Standards for Sea Protection. mental likely to be utilized[] “utilized unchallenged— presently The second—and nesting”) (amending Ordinance turtles theory of prong of the Turtles’ causation 602). 88-15, VI, § Art. That Ormond No. first, positing that even builds on their Smyrna have the Beach and New Beach county-wide, re- applied 90-22 Ordinance supplemental authority to enact more oner prevent takes. Men- are too lax to strictions ous, Daytona Daytona Beach and Beach and Daytona Daytona tioning only Beach and some, lighting- decide to enact Shores could Shores, County responds that Beach Volusia “fairly traceable” do not sever the standards liable takes in those locations it cannot be for regula County’s Volusia connection between authority regulate it “had no because tory alleged the Turtles’ “harm.” municipalities” “in actions and lighting those and within appeal specifically presented County’s to the district does not 20. Volusia brief reply Smyrna for first time in the brief.” Unit raised Ormond Beach or New Beach. mention Campo, ed States v. denied, Cir.), cert. 479 U.S. argue exempting Daytona Turtles as We therefore treat un L.Ed.2d 369 Daytona Shores from the Mini Beach and Beach conclusion Vo- contested the district court’s for Sea Turtle mum Environmental Standards at county of the ordinances issue lusia enaction charter. We will Protection violates the law. valid under its charter state argument it "was not was because not consider “harm”) turtles in to sea prevent face to “independent ac their only truly Smyrna Beach. and New Smyra Beach Ormond and New Beach’s Ormond tion[s]” 561, 112 at S.Ct. Lujan, U.S. generally Envi the Minimum enforcement of Beach’s (the standing “must be existence Turtle Protect for ronmental Standards Sea ad- by the evidence adequately supported 560, 112 S.Ct. Lujan, 504 U.S. at ion.22 trial”) (internal marks and quotation duced (internal quotation marks and citations omitted). course, defense, As citations omitted). charter-based In contrast to its Minimum County may show that its Volusia for arti authority minimum standards to set Turtle for Sea Standards Environmental lighting, Volusia ficial beachfront 89- within Ordinance as contained Protection actual, any control over the possess not does enforced, amended, pre- would fully as day-to-day measures that Or enforcement to the Turtles. vent “harm” em Smyrna Beach Beach and New mond 89-60, amended, states as ploy. Ordinance any make similar fact need not The trier of Smyrna Beach and New Beach Ormond regard Daytona Beach assumption with county council[ ] exempting ... submit to the Daytona shall Beach Shores. containing stan municipalities ordinance[s] from even altogether [their] two those Environmental in Minimum for [the dards Environmental Standards Minimum Protection]; pro for Sea Turtle Standards as contained within Turtle Protection Sea vided, however, 89-60, amended, Beach and [Ormond ... Volusia Coun- Ordinance Smyrna may elect to autho they Beach] obviously contemplated New will ty county to Mini [the rize the administer Fur- measures. employ enforcement for Sea thermore, complaint mum Environmental Standards and the according to the bor nothing Protection] [their Turtle within permit, exists ____ trial, ... [are] If such ders] ordinance[s] At municipalities to enforce. those two compliance Minimum En- [the not in inquiry simply can of fact’s the trier Pro- for Sea Turtle light- vironmental Standards artificial beachfront whether the lack of tection], then, may county Dayto- council Daytona ing Beach restrictions Environmental Minimum [the “harm” to sea turtles na Beach causes Shores enforce defense, Protection] for Turtle Sea Standards in those locations. As Smyrna Beach]. Beach and New prove (e.g., [Ormond County may seek to the converse nest or shelter protected sea turtles do not 95-18, Fla., County, Ordinance No. locations unrestricted those added). and/or Therefore, the Tur- (emphasis them). does not “harm” standing to seek to hold Volusia tles lack inadequate County responsible for enforce- Because the district court dismissed part Beach ment efforts on the of Ormond Beach, takes in Turtles’ claims of Smyrna Beach. and New Shores, Daytona Beach Ormond Beach standing, we Smyrna for lack of control on New Beach This absence of enforcement however, Turtles have not decide whether the County’s part, does not de- need showing of causation for standing inade- made a sufficient Turtles’ to sue for feat the Nonetheless, liability. prece- theory purposes of regulation, core quate the Turtles’ Supreme and other from the Court municipalities. At dent causation in those two purposes trial, full circuits that address causation simply can assume the district court liability support holding. In Babbitt v. part our complete efforts on the enforcement Chapter Home Communities Smyrna Beach. Sweet of Ormond Beach and New Oregon, Supreme stated Court assumption focus the trier of fact Great This will regulation “harm” “encom- that the ESA’s solely regulatory the acts of Volusia Coun- on injuries[.]” as well as direct determining passes Minimum En- indirect ty in whether the added). Thus, (emphasis 2413 Protec- 115 S.Ct. at for Sea Turtle vironmental Standards Home, 89-60, need not under Sweet as tion as contained within Ordinance amended, every lighting source it- (e.g., opei'ate beachfront “harm” insufficient on cause for Sea Turtle Daytona mum Environmental Standards true for Beach’s and 22. The same holds development. pertaining to new the Mini- Protection Beach Shores' enforcement of Rather, species protected ESA[J” under the ings of under the ESA. to be held liable self Eighth lighting is af- suffi- F.2d- at 1298. Circuit control over its indirect 882. very purposes least —for of that finding the the cient —at firmed district court’s the standing.23 prohibition, “take” EPA violated the 1300, dispute. at in 882 F.2d ESA violation circuits, two the First and At least The court held that “the continued 1303. of regulatory held that the acts Eighth, have pesticide, distinguished as registration of a pro of can cause takes governmental entities pesticide, use of that from distribution or Coxe, 127 tected wildlife. See Strahan illegal taking constitute an under the can (state (1st Cir.1997) 155, 158, agen F.3d causation, at As to 882 F.2d 1300. ESA.” takings endangered right cy caused of the relationship a “clear” between court found fishing it commercial because “licensed whale registra- regulatory EPA’s action-—the pots in gillnets and operations to use lobster strychnine of ferret deaths. 882 tion —and likely that to result specifically the manner is F.2d at 1301. ESA]”), petition cert. [the in violation of 1998) (Mar. (No. 6, filed, 66 U.S.L.W. 3605 case, Wildlife, like in- This Defenders 97-1485); v. Adminis Defenders of Wildlife entity regulatory that exerts control volves trator, Agency, 882 F.2d Envtl. Protection something allegedly the use of that over Cir.1989) (8th (federal agency 1300-01 cases, protected In takes wildlife. both endangered black-footed caused takes regulatory entity purports to make lawful an register through pesti its “decision to ferret activity In allegedly that violates the ESA. persons actually though even other cides” Wildlife, registered the EPA Defenders pesticides). In'De or used the distributed strychnine, allowing farmers to use it. Wildlife, prohibited federal law fenders case, ordained beach- this strychnine, pesticide, using farmers lighting, allowing use front landowners Agency unless the Environmental Protection (that is, day night Dayto- all all in lights (EPA) Al registered it. 882 F.2d at 1296. Shores) Daytona Beach or use na Beach and non-endangéred ro though kill intended only during daylight hours turn lights strychnine prairie dogs, was such as dents (that is, unincorporated at them off sunset endangered killing black-footed ferrets. also Inlet) Ponce or 8:30 areas and the Town of groups 1297. Environmental at (that is, p.m. Beach and New EPA, Ormond alleging that its “continued sued Beach). poison- Smyrna strychnine resulted registration of 889, 900-901, Home, (discussing 920-924 Supreme suggested Court In Sweet prohibition published explicitly law ESA's "take” virtual absence of case regulation "incorporate ordinary re proximate "harm” applying cause and the doctrines of proximate quirements causation foresee foreseeability prohibition "take” ESA's Strangely, ability.” n. S.Ct. at 2412 recommending regulation, "harm” "proximate apply Turtles ask us SweetHome's merely statutory "as a treat Sweet Home courts “fairly excerpt to the traceable” causation” validity upheld the of an construction case that First, standing. so. prong of We decline to do regulation” "take” agency’s and look to other remotely suggests proxi authority even no v. Hawaii "harm" case law such Palila applies of stand to the doctrine mate causation Resources, 852 F.2d Dep't Land & Natural Second, likely portion ing. Home of Sweet (9th Cir.1988), plaintiff estab where only dispute in case was a since the dicta "proof through that a [state lished causation one, Secretary of the Interior whether the facial vegetation agency's] sheep ate immature certain Congress” "reasonably construed the intent of endangered palila totally relied in which regulation. promulgating the 115 S.Ct. "harm” state[,]” to frame element cau its mature sation). Babbitt, 2418; Marbled Murrelet v. cf. proximate concept if the causa Even Cir.1996) ("The (9th case involved governed analysis, we our note somehow tion challenge Secretary's definition of facial necessarily produce a result that would opinion the Sweet Home 'harm.' To extent generally that of cause-in-fact. See different from say injury required may past issue, before be read dictum.”), States Steel & Carne Cox v. Administrator United injunction may such statement is Cir.1994) denied, ("Aprox- gie, 17 F.3d - U.S. -, cert. thing same as a sole not ... ímate cause is cause.”), generally J. Andrew 136 L.Ed.2d 831 denied, Note, U.S. S.Ct. cert. Doyle, Sharing Home Home Sweet Wildlife, 784 Federally 130 Stetson L.Ed.2d 25 L.Rev. Protected v. in opinion Strahan the First Circuit’s County’s attempt distinguish to Cir.1997). (1st Coxe, In Stra unpersua is materially 127 F.3d 155 of Wildlife Defenders that, fishing unlike han, contends prohibited sive. Volusia law Massachusetts EPA, directly responsible for it is not pot lobster using gillnet and companies from endangered species. Volusia protecting A state fishing equipment without a license. however, subject to the ESA’s County,' is authority regu agency “vested with broad same manner prohibition in the exact “take” and, through fishing” the licenses late issued 1532(13) (“per EPA. as the See U.S.C. fishing the use of the regulation, restricted prohibition in subject to “take” son[s]” F.3d at only areas. 127 equipment in certain “any agent ... ... of the Federal clude reports from the National According to 159. “any political ... subdivi Government” Service, “entanglement Marine Fisheries State”); Valley Auth. v. sion of a Tennessee leading causes gear of the fishing is one Hill, 153, 184, 98 S.Ct. U.S. [endangered] North depletion of the of the (1978) (“All persons, including L.Ed.2d at population!.]” 127 F.3d Right whale ern specifically instructed agencies, are federal endangered species[.]”); see also not to ‘take’ Martin, 1551, 1555 Sierra Club v. agency the state A sued conservationist Cir.1997). Furthermore, contrary to ESA, alleging that its continued under the County’s the district court’s “harm” licensing fishing equipment caused of view, separate and that the EPA had a dis 127 F.3d at 158. right whale. See that its duty under the ESA ensure tinct in- granted preliminary The district court likely jeopardize endan decision would not matter, First, junctive a threshold relief. factor into the gered species did not Defend concluded that the conser the district court holding. court’s See 16 U.S.C. ers of Wildlife agen standing sue the state vationist had 1536(a)(2)(the clause); “jeopardy” Tennes “[i]ndisputably, actions of cy though even 184, 193, Valley, at 98 S.Ct. 2279 see 437 U.S. parties not the court —commer third before entity’s operation of a (holding that a federal fishing operations the immedi cial —are clause, sepa “jeopardy” dam violated endangered the harm to ate cause rately noting that do not understand “[w]e Coxe, F.Supp. whales[.]” Strahan entity] operate intends to how federal [the (D.Mass.1996), part, vacated aff'd ‘harming’ the snail dar [the without dam] (1st part grounds, 127 F.3d 155 on other fish). ter[,]” parties a threatened Cir.1997). court found a suffi The district disputed the EPA’s Defenders of Wildlife alleged cient causal connection between liability only prohibition, “take” under the agency’s licensing to whales and the “harm” “jeopardy” clause. See 882 F.2d at not the fishing equipment, pointing to the fact that purports also 1303. Volusia cannot, legally, place gill- “[fjishing vessels reg EPA’s specificity of the differentiate gear in Massachusetts wa nets and lobster ulatory in relation to its own. action agency].” permission from [the ters without Wildlife, the affirmed a Defenders of case, Reaching F.Supp. at 978. the merits of finding liability. In this we trial claim, finding standing. pretrial taking of no the district court reverse the ESA Thus, argument fishing concerns agency’s “commercial found that the minimum constitutional not the “irreducible likely taking regulatory scheme exacted standing” “questions proximi (em but raises 127 F.3d at 163 violation ESA.” saved for trial. ty degree” that are best added). Concerning causation as one phasis (internal Bennett, quotation at 1161 S.Ct. prohi “take” the essential elements of the Home, omitted); Sweet marks bition, court found it “irrelevant the district 2418.24 agency’s] permitting of commercial that [the fishing gear only an indirect cause of whale Eighth persuasive than the Even more F.Supp. entanglement[.]” 939 at 985. opinion in Circuit’s of Wildlife Defenders independent out the actions of non- Again, district court to sever we leave it to the fairly purposes parties cannot trace to Volusia that we for causation for decide standard County. inquiry liability. the causation We have framed lighting county-approved or- ly enforce their affirmed appeal, the First Circuit On however, respects, to no inspect In all other court with dinances. judgment of the district actor” con- holdings. See “intervening independent F.3d at 158.25 exists ESA its governmental First, cerning lighting that “a enforcement court held standards authority County an pursuant County. to whose As con- party in Volusia Volusia third cedes, taking regulatory of an endan- directly exacts a possesses actor it sufficient may to have species be deemed violat- over artificial beachfront gered enforcement control at unincorporated F.3d provisions lighting of the ESA.” in all areas ed the Second, the affirmed the district court Ponce Inlet. But for Volusia Coun- 163. Town of causation, stating Daytona finding of ty’s regulatory court's determination that indirect, so Daytona harm] is not removed fall outside [the “while Beach and Beach Shores areas, it agency’s regulatory nesting light users in action] the sea turtle [from is subject as it realm causation at least outside the those would be extends locations F.3d at in the common law.” 127 understood Minimum Environmental Standards rejected agency’s Finally, the contained within 164. Turtle Protection as Sea 89-60, analogy fishing equipment licensure as it that its as amended. Just was Ordinance than taking more a Strahan impossible not cause the “for licensed com- “does fishing gillnets of automobiles operation licensure tó use its state’s] mercial [the crimes, by permitted even pots or causes federal in a manner drivers solicits lobster surely violating are though [agency] automobiles licenses risk of the ESA[J” without laws, drug rob federal- case that genuine used to violate federal issue of fact exists banks, for the along or cross state lines ly insured activities of landowners laws.” violating state and federal beaches —as authorized purpose of Volusia that, reasoned F.3d 164. The court local the ESA. through at ordinance —violate automobiles, li- licensing Accordingly, very at at the unlike 164. least, Turtles, not in- censing fishing equipment “does conserva- analogous Strahan, intervening independent standing proceed [as] actor volve tionist County necessary component” lighting-related because “it is against Volusia fishing Beach, Daytona Daytona a licensed commercial Beach possible for “harm” in pots Smyrna gillnets Shores, or lobster operation to use its Beach and New Ormond by agency] permitted though [state actions or inactions a manner Beach —even by exacting violating parties the ESA “third not before the court” risk of those without taking.” 127 at 164. may harm[.]” “cause of be another F.Supp. at 978. Strahan, agency in Volusia Like the state County alleged “governmental to be a 2. authority party pursuant whose

third “redressability” prong directly taking of an endan- exacts actor Strahan, “likely, standing asks whether it is 163. doctrine species[.]” F.3d at gered merely speculative, that opposed to as the Strahan agency was with as “vested Just injury a favorable deci regulate under will be redressed authority fishing” broad state, 561, 112 Lujan, S.Ct. 2130 law, sion.” 504 U.S. is “vested (internal omit quotation marks and citations authority regulate” beach- artificial broad ted). complaint prays for the The Turtles’ and ordi- lighting under charter front (1) that Volusia court to: declare district 127 F.3d at nances. Beach, artificial County’s “refusal to eliminate those have us hold would light ... misorient Shores, sources Ormond Beach and beachfront Daytona Beach May through 1st October “intervening inde- sea turtles from Smyrna New Beach annually ‘taking’ constitutes an unlawful regulation of artifi- 31st actor[s]” in the pendent turtle”; loggerhead green lighting. [sea] It 127 F.3d at 164. beachfront cial earlier, enjoin that, permanently we true concluded Ormond light sources permitting “from those artificial Smyrna independent- and New Beach .Beach determination, standing. specifically the district court’s Circuit did not address First Hodel, No. Fed’n v. Tur- National also that misorient sea Given turtles[.]” Wildlife (BNA) EJG, Rep. Env’t Cas. evidence, 23 easily conclude that S-85-0837 we tles’ record 1985) (E.D.Cal. (ordering the Aug. grant the re- if the district court were relief, and the Director protected Secretary sea turtles of the Interior quested fewer hunting in through to ban lead-shot bird “harmed” misorientation. the Service would be Missouri, (“If Illinois, California, Strahan, F.Supp. at portions Cf. finding Oregon limit or ban on a agency] further[ ] were to and based [state Oklahoma gear in gillnets lobster caused ... the use of authorization that their continued waters, likely eagles it is that fewer that ate lead- Massachusetts of threatened bald takes Strahan, through harmed endangered prey). whales would be In the district infested (1) apply entanglements.”). agency ordered the state to: (2) submit to the permit; “redressability Although —like restrict, modify “to or elimi- proposal court a standing inquiry prongs other —does fixed-fishing gear” nate the use of as a depend on the defendant’s status (3) habitat; and endangered right whale’s entity[,]” unique constitutional governmental plain- that includes the convene committee district implications exist whenever a federal parties engage in interested “to tiff other entity to take court is asked to order a state regarding modifi- substantive discussions regulatory action. Steel Co. Citizens for fixed-fishing gear and other mea- cations of —Env’t, U.S. -, Better S.Ct. the North- to minimize actual harm to sures 5,n. 140 L.Ed.2d 210 Right 127 F.3d at whales[.]” ern County argues granting requested that F.Supp. at 992. is, relief, enjoining permitting it from lighting, tantamount “harmful” would be Like courts the district Defenders of ordering legislate it to violation of Strahan, court in the district Wildlife separation powers.26 As the Turtles cor range has available a wide of effec- this case out, however, rectly find point we need not appellate injunctive Neither the tive relief. every remedy conceivable with constitutional appel- court in nor Defenders of Wildlife equitable scope in the “full of traditional any late court in Strahan found relief injunctive powers” district available to the Nor that relief serve unconstitutional. does Strahan, Rather, at 170. court. example, in an exhaustive list. For as need find constitutional at least one we case, the district court could strike Volusia remedy adequately would available exemption of ordained bring County’s compliance with about Volusia Daytona Beach from the Beach and Shores (“The Strahan, 127 F.3d at 171 the ESA. See Minimum Environmental Standards Sea go any required court was not district Protection contained within Ordi- Turtle as ensuring any violation than farther 89-60, Hershey v. nance as amended. Cf. end.”). would Clearwater, City 834 F.2d Cir.1987) (“The ordering permits law us to strike the Assuming, deciding, that without unconstitutional, sleep,’ implement enforce words ‘or if ordinance.”). Similarly, the district court county-wide a “turtle-friendlier” ordinance standards, we could declare that those minimum separation powers, would violate the enforced, fully prevent fail to “harm” alternative effective relief exists. even find that protected sea turtles in Ormond Beach injunctive relief awarded Defenders of Smyrna and New Beach and' —like the dis- is instructive. De- Strahan Wildlife Wildlife, tinct court in Strahartr —order Volusia the district court “basi- fenders of enjoined propose a solution. cally continuing the EPA from to form committee Massachusetts, strychnine EPA Franklin v. 505 U.S. registration of until 788, 803, illegally taking protected 120 L.Ed.2d 636 could do so without 1298; (concluding that Massachusett’s al- species of 882 F.2d at see wildlife.” Strahan, Nor does Volusia raise federalism con- 26. Unlike the defendants in County does not assert Tenth or Eleventh cerns. immunity. Amendment See 127 F.3d at 166-71. scheduling pre- orders dant outside the in the House of losing a seat injury, leged such, period). As scribed time “likely to be redressed was Representatives, Secretary against the by declaratory relief apparent or de the absence of [i]n though even the Sec- alone” delay, Commerce] bad [of undue clared reason —such change reappor- retary herself dilatory part “cannot of the1 motive on the faith tionment”) Strahan, (plurality); movant, cure deficien repeated failure to Finding no bind- allowed,' F.Supp. at 992.27 by previously amendments cies contrary, authority to the ing persuasive party opposing by or prejudice to the undue in alleged amendment, “harm” hold that the Turtles’ we fu of of the virtue allowance Shores, Beach, Daytona Or- amendment, sought Beach tility etc.—the leave of Smyrna can be Beach should, “freely mond Beach and New require, be as the rules through that constitutionally redressed relief given.” County’s regu- scope Volusia

respects the of Davis, 182, Foman v. 371 U.S. municipalities. latory those control over 9 L.Ed.2d “ap- that the district court’s

We conclude C. denying leave or reason” for parent declared of Turtles failed to serve the interest to the Where, here, plead responsive as a First, erroneously justice. the district court filed, complaint has ing original to been that the Turtles failed invoke concluded party’s pleading party may amend the “a subject jurisdiction. The factual matter by ... leave shall be only of court leave copy premise the conclusion—that Fed. freely justice requires." so given when was not their of intent to sue letter notice added). 15(a) Similarly, (emphasis R.Civ.P. “on file with the Court” —was false. may be ... added order “[p]arties copies of the record contains at least two stagé any party any ... at court motion letter. just." such terms as are of the action and on that, added). if argues even (emphasis Techni Fed.R.Civ.P. in the letter party, had found sought leave to add district cally, the Turtles record, See, insufficiently provided “notice of e.g., Ameri sea turtle. the leatherback (1st Secretary 163, 164 of the Interior the violation” to v. 9 F.3d Eagle can Bald Bhatti - County. Cir.1993) (stating bald and Volusia the threatened 1540(g)(2)(A)(i). disagree. In its first enjoin We “brought ... eagle [a] this action expresses the need for hunt”); Dep’t paragraph, the letter Land Palila v. Hawaii deer ... artifi- Resources, “immediate action eliminate & Natural Cir.1988) endangered cial beachfront sources (stating during nesting turtle way protected into sea turtles wings palila legal “has status 31st)[.]” (May through 1st October plaintiff in its own season as a federal court added.) paragraph, substance, however, In the next (Emphasis the Turtles right”).28 In explicitly references the leather- any the letter allege takes. sought to additional species of case, as one of three sea event, we back sea turtle posture of this given the on Volusia beaches. turtles that nest that the stan agree the district court interpretation, Contrary to Volusia motion for deciding the Turtles’ dard for facially section is complaint the letter’s “violations” was to file an amended leave 15(a) general prayer with the letter’s Accord inconsistent rule or 21. under either same Inc., avers paragraph. That section in first Systems, Airprint Sosa 23, 1995, that, (11th Cir.1998) the individual (discussing as of March rule of “at least 33 15(a)’s appellants possessed evidence motion to applicability plaintiffs in- of the independent violations ESA” defen- complaint to add a second amend the turtle added the leatherback sea examples. 28. The. Service just We leave it to the 27. Those are injunctive species appropriate endangered in 1970. 50 list June to fashion to the district court 17.11(h). for sea liable relief if it finds Volusia C.F.R. municipalities turtle "harm'’ issue. general notions federal rules and loggerhead green der the volve “the ‘take’ of added). complaint must (Emphasis dealing. Allegations When read turtles[.]” fair context, log- the exclusive reference to the “evidentiary support” to best green belief, in the viola- gerhead information, sea turtles “knowledge, party’s exclude tions section of the letter does not under inquiry reasonable formed after an the. possibility “continuing, forceable viola- 11(b)(3) (filing Fed.R.Civ.P. circumstances.” involving tions of the ESA” the leatherback warrants, among things, pleading other sea turtle. Notice of Intent to Sue at “allegations factual conten- that its and other Thus, although the leatherback sea turtle or, specifi- evidentiary support tions have part one of the let- “was referenced identified, likely cally to have eviden- so ter, provided the letter a whole notice opportunity tiary support after a reasonable rectify opportunity sufficient to afford the discovery”); investigation further the asserted ESA violations.” Marbled Guides, Inc. v. Chromatic Commu- Business (9th Babbitt, 1068, Murrelet v. 83 F.3d 1073 533, 541, 111 Enterprises, 498 U.S. nications Cir.1996).29 (1991) (“A 922, party 112 L.Ed.2d S.Ct. paper without signs pleading who or other The second basis of the district conducting inquiry shall be first reasonable order, delay, court’s the Turtles’ undue sanctioned.”). Assuming in the author acts at equally flawed. One of the two exhibits faith, investigation preceding an in- good an for leave to tached to Turtles’ motion thorough as as The Turtles tent to sue letter need not be amend is dated “June 1995.” original complaint leading up complaint. for filed their and motion to the See Fed. 8, 11(b) injunction preliminary (“evidentiary on support” June 1995. We R.Civ.P. lawyer’s no to doubt the Turtles’ requirements apply only reason inquiry” “reasonable representation they court”); not this did obtain papers “presented] to the Cham- publication filing origi NASCO, Inc., until after the their 32, 40, 46, 111 bers v. 501 U.S. Thus, complaint. nal this is not a case where 2123, (affirming S.Ct. 115 L.Ed.2d supporting proposed amend the facts sanctioning pre-litigation conduct— original “were known at the time of the ment commencing plaintiff from “the time that [pleading].” National Indus. v. Serv. gave Vafla of its intention to file suit”'— notice (11th 246, Cir.1982); Corp., 694 F.2d power cf. on the court’s “inherent to im- based Palila, (noting six-year 852 F.2d at 1107 conduct”) pose sanctions for ... bad-faith gap original complaint and the between added). (emphasis complaint allegations amended to add of a July recognize We in late 1995 the of “harm” that “had not been the new source submitted, support Turtles of their motion target original complaint of the because re preliminary injunction, very for same completed”). ... had not been None search upon support that it relied factual exhibit as theless, Tur insists that the Volusia proposed complaint. for their It is amended tles must have known of the existence of however, Turtles, undisputed, leatherback sea turtles in'March Sosa, plaintiff in contrast to the filed their date of their intent to sue letter. The dis court, however, motion for leave to amend within the time trict relied on no such factor. period prescribed in the district court’s Additionally, plead the Turtles’ failure to scheduling At original complaint the order. See 133 F.3d at 1419. their existence most, County’s request their failure to leave to file an leatherback sea turtle on Volusia obligations complaint July beaches reconciles with their un- amended late instead of turtle, turtle, County obviously potential green head sea ... sea ... leather- 29. Volusia knew of its turtle, turtle, problems sea turtle since it ... hawksbill sea ... and with the leatherback back ) piping plovers reptile species Kemp’s ridley ... included that and other in its sea turtle beach-driving application permit. resulting public activity an incidental take for Receipt Application operated by controlled and Notice of of an for Inci- Permit, (March Fed.Reg. County, to the extent and miti- dental Take that minimization 1996) gation (summarizing application proposed measures in the habitat conser- successful”) (scientific plan permit an incidental take that "would autho- vation ... are not added). species (logger- emphasis turtles names omitted and rize the take of five of sea case, this “delay,” party. it opposing not supports finding October Foman, “dilatory” delay” proportions. action. nominal In accordance with “undue order, (emphasis discovery add scheduling 371 U.S. district court’s ed). suggests that Nothing in the record proceeded assumption that the leath- than mere gap anything “[t]he other was party. as a erback sea turtle would be added Airlines, Floyd v. Eastern passage of time.” Bank, Hargett Valley 60 F.3d Fed. Sav. Cf. (11th Cir.1989), Inc., 1462, 1490 872 F.2d Cir.1995) (affirming the denial 530, 111 grounds, on other 499 U.S. rev’d plaintiffs amend motion for leave to 1489, 113L.Ed.2d 569 S.Ct. eight “which was filed more than months pretrial order was entered and al- after court’s final basis district discovery] deposi- most ten months after [a leave, County, prejudice denying to Volusia tion”). possible delay, As to rea anything but “a substantial constituted genu- plausibly that it could convince us deny amend[.]” son.. to leave to Florida inely go quickly to trial as wanted as Corp., Light v. Allis Power & Co. Chalmers contrary, possible. employed On the ex- (11th Cir.1996) (internal traordinary efforts to obtain continuance or- omitted). quotation and citations marks County representatives ders. Volusia even impact “[t]he court reasoned that district Secretary of the personally met with the adding par the leatherback turtle [sea] the imminence the Ser- Interior ensure season, ty, breeding its earlier would be permit take decision. vice’s incidental County’s liti opportunity to the to foreclose occurred gate whether takes of sea turtles “[t]he We are that decision

during period February April, to mindful from to grant whether leave to amend within the prelimi since Court would be asked to trial allowing sound discretion of the court.” Jame narily enjoin the from driv (11th. Co., February to ing on from Octo son Arrow the beach out, Cir.1996) correctly point (affirming As Turtles denial of leave to ber.” however, they preliminary not ask for plaintiff requested did who it “ten amend to injunctive counsel, as to leatherback sea relief discovery she months after retained requested they would have turtle. Even closed, complaint had been amended was motion, separate relief the same such twice, mo defendant] had filed two Tthe easily court could have severed the district summary judgment”). Reversal is tions for preliminary grant issue of to whether inherently Based on the circumstances rare. to injunctive from the of whether relief issue however, case, that the we hold dis this complaint.31 grant to leave amend denial of leave to amend the trict court’s original permissible complaint fell outside the only purported prejudice we are left Accordingly, the inter range of discretion. incurring County’s with is Volusia fear of “justice requires” so that leather- est of delay.” possible expense “additional pro included in further back sea turtle be original pleading nec- Any to an amendment 15(a).32 ceedings essarily expense to on remand. Fed.R.Civ.P. involves some additional course, ashore) driving. According proposed victims of beach Of amended com- as 30. to adding to at this washed-back turtles their claim plaint, and hatch leatherback sea turtles nest light juncture be moot in of the incidental would annually, February 1 until October expressly permit takes. that covers such green loggerhead nest sea turtles whereas sea turtles and The same is true of leatherback May annually. until and hatch from October driving. permit ex- beach The incidental take consideration, Additionally, practical pressly excepts as a incidental takes of leatherback driving, including through beach inci- of leave is moot because the sea turtles basis for denial now occurring prior May preliminary injunc- to each dental takes court dissolved district court, year. Finally, do unlike the district we permit and the incidental take authorizes tion proposed amended com- construe the Turtles' through leatherback sea turtles beach takes of seeking expand nesting plaint as the relevant May driving, occurring before even those Rather, year. period beyond October 31 of each allude to fact that their 32. The Turtles to "December the Turtles’ one-time reference sought complaint appears also to include a scrivener’s error since their amended 31” (hatchlings initially permanent injunctive relief prayer states "Oc- washed-back sea turtles that for subsequently 31.” washes tober reach the ocean but the surf whole, especial- the fabric as a back and view V. CONCLUSION ly considering important conservation when reasons, foregoing Turtles For the expertise Congress committed to the issues judgment have convinced us to reverse the agency. of an administrative summary, the district court. we first hold endangered tur- concerning the The issues permit that Volusia incidental take tles, course, very fact are not moot. The protected does not authorize it to take they the Act reflects are covered mitigatory through purely turtles measures in order to serious measures must be taken lighting. associated with artificial beachfront species. important It preserve the Second, have we hold the Turtles and effective measures to there be efficient standing under the to sue Volusia turtles, protect endangered Congress but all prohibition regulatory for ESA’s “take” its wisely assigned Department of the has affecting light actions users Ormond responsibilities Interior extensive under (that is, Smyrna Beach and New Beach Endangered Species Act. Babbitt v. imposition of the Minimum Environmental Chapter, Sweet Home Communities for Sea Turtle Protection as con- Standards 687, 708, Oregon, 515 Great U.S. 89-60, amended), tained within Ordinance as (1995) (“When 2407, 132 L.Ed.2d 597 it en- municipalities’ independent but not those en- ESA, Congress delegated acted the broad forcement efforts. We likewise hold that the interpretive power administrative and to the standing Turtles sue Volusia Secretary.”). Along responsibili- with these regulatory affecting light actions users power permit ties comes Daytona Beach and Beach Shores long “takes” as as those takes do not threat- (that is, exemption from the Minimum species. en the continued existence Environmental Standards for Sea Turtle 1539(a) (1994). permit “The See U.S.C. Protection as contained within Ordinance 89- process requires applicant prepare amended). Furthermore, we hold that plan’ specifies ‘conservation how he in- possesses power the district court to mitigate’ ‘impact’ tends to ‘minimize and remedy constitutionally fashion that both activity endangered of his and threatened alleged respects redresses the “harm” and 1539(a)(2)(A).” species, Siveet scope County’s regulatory of Volusia au- Home, 700, 515 U.S. 115 S.Ct. It thority municipalities. within those four litigate does not make sense to in federal Finally, we hold that the district court by court the issue of incidental takes caused denying abused discretion the Turtles’ lights lights regulat- artificial when those are original motion for leave to amend its com- by plan provisions ed the conservation of a plaint endangered and add the leatherback Compare valid Incidental Take Permit. Na- party. light forego- sea turtle as a of the Babbitt, tional Ass’n Home Builders v. ing holdings, we remand this case further (D.C.Cir.1977), 130 F.3d 1044-45 cert. proceedings opinion, consistent with this in- — denied, -, U.S. cluding lighting a trial on artificial beachfront (1998)(when per- L.Ed.2d 712 incidental take (absent timely intervening issuance of an proposes mit holder to violate conservation permit). incidental take plan, permit may required). new take REVERSED and REMANDED. it, IAs understand there are two kinds of takings Baby involved here. turtles born at RONEY, Judge, dissenting: Senior Circuit night light, having crawl to the nature made dissent, respectfully largely I light on the rea- that the reflection of the moon on the soning deciding of the district court lighting Order water. Artificial shoreline and ve- by Department lighting that the issuance of the hicular disorients these turtles and water, crawling they Interior’s U.S. Fish and Wildlife Service instead of to the crawl away an Incidental taking Take Permit renders this case from the water. One kind as points moot. I undisputed: killing understand the technical a result is reasoning argue contrary by for a conclu- driving turtles motor vehicles on the sion, important step during period. plaintiffs but sometimes it is beach The con- any years problems. of those to correct incidental two Permit covers the cede that then, impractical proves it or cost Only if as a vehicles taking occurs motor remaining prob- prohibitive any to correct from artificial the disorientation result of lems, might an Incidental the issuance lights on the lights, as shoreline .well necessary. Take Permit be vehicles themselves. would dictate that Common sense taking is due to shore- there Whether implement plan such a if Agency not would by vehicles is lights other than line artificial taking as permit not such incidental did Ser- dispute. The Fish Wildlife U.S. during management plan, might occur implemented an Artificial Beach- vice has taking through any, in vehicu addition Plan, however, Management Lighting front agency properly activity. If the does lar- modify extent designed to to the which is under the protect the interests here involved turtles practical that disorients statute, remedy through parties plan nesting This during periods. the critical my Act. In Procedures Administrative beach- requires survey a detailed of artificial mistake, a judgment, it is a serious waste of contemplates more restric- lights and front resources, unjust government and an ex future, lighting regulations in the near tive try pense parties parallel to run to the supervision of the U.S. all the direct under district litigation of these issues Fish and Wildlife Service. problem management while the is under the Endangered Species Act authorizes agency. of the federal of, permit Department the Interior moot, I Even if were not would this case language “takes.” The focuses on jurisdiction primary doctrine and invoke the themselves,'rather than takes the incidental stay pending the case further administrative actually activity the takes. causes proceedings U.S. Fish and Wild- before the 1539(a)(1)(B). agree I would U.S.C. jurisdiction primary doc- life Service. reasoning where Ninth Circuit’s with the designed tool that trine is flexible contemplated by “clearly incidental takes efficiently finding allocate fact between statement,” they are ex take the incidental agencies. federal courts and administrative Endangered liability cepted from under Co., Pac. R. United States v. Western Kantor, Ramsey v. Species Act. 63-64, 1 L.Ed.2d U.S. S.Ct. Cir.1996). See also Hamilton v. “applicable claims The doctrine (W.D.Tex. Austin, F.Supp.2d City in court that contain properly cognizable 1998) (incidental required permit not competence of special some issue within permit to take endan where valid scientific requires agency. It an administrative granted by gered salamander had been U.S. agency---- to a ‘referral’ court to enable Service). Fish and Wildlife to the administrative Referral the issue only two The Permit includes jurisdic- deprive agency does not plaintiff species, the leatherback turtle but tion; juris- retain has discretion either to turtle, sought to include as a plaintiffs which or, unfairly parties if not be diction would party plaintiff, species tur- two other disadvantaged, without dismiss the case County requires It tles well. Cooper, 507 U.S. prejudice.” Reiter v. Fish and experts from the U.S. work with 268-69, L.Ed.2d 604 S.Ct. Service, Department Florida' Wildlife Protection, the local Environmental question case involves a of fact-wheth- This municipalities Day- company, and even the lighting “takes” sea er artificial beachfront Beach Shores. tona Beach special is not within the turtles-that by plan approved The conservation competence Fish and Wildlife of the U.S. requires Volu- actually by Fish and Wildlife Service Service, being U.S. but is reviewed County year to conduct an sia within one Take Permit agency. The Incidental survey lights along provide the requires of all artificial U.S. extensive any problems information document Fish Service with its beachfronts and and Wildlife potentially disorient by lights. regarding lights . It which might be caused those and, develop appro- necessary, an following if over the turtles requires Volusia mitigation priate plan. If the Fish and U.S.

Wildlife determines that artificial Service lighting does “take” tur-

beachfront indeed

tles but not threaten the exis- does continued species, empowered by

tence of then it is to craft a solution to the

statute flexible case,

problem of incidental takes. In this already Fish and Wildlife has

U.S. Service

issued Incidental Take Permit that com-

prehensively regulates artificial beachfront

lighting. Invoking primary jurisdiction judicial

doctrine would avoid a solution that

might regulatory conflict with the scheme

already approved by appropriate admin- agency.

istrative See Friends Santa Fe Minerals, Inc., F.Supp. v. LAC (D.N.M.1995). Considering

statutory responsibilities given to the Secre-

tary Department by Congress of the Interior ESA, passed

when it I would hold in this

case that the U.S. Fish and Wildlife Sendee position

inis a better than a federal court to dispute

resolve the at this time. event, ques- there seems to be no

tion that the district court case is moot if the includes,

Incidental Take Permit in addition vehicles, takings by motor such other tak-

ings, any, lights. caused artificial If doubt,

that issue is indeed this Court could

simply require stay of the district court

proceedings repairs while the defendant Agency get a clarification on that

point. America,

UNITED STATES

Plaintiff-Appellee,

Billy DANIELS, Dean Defendant-

Appellant.

No. 97-9251

Non-Argument Calendar. Adams, Jr., Hagler, Hyles, Clark Coleman Appeals, United States Court of McKenna, Columbus, GA, Adams & for De- Eleventh Circuit. fendant-Appellant. Aug. Wiggins, Atty., George

James L. F. U.S. III, Peterman, Macon, GA, Atty., Asst. U.S. Plaintiff-Appellee.

Case Details

Case Name: Loggerhead Turtle v. County Council of Volusia County

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 3, 1998

Citation: 148 F.3d 1231

Docket Number: 97-2083

Court Abbreviation: 11th Cir.