Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 1 of 19 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

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1 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 1 of 19 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION CASE NO:6:04-cv-1576-ORL-31KRS ATLANTIC GREEN SEA TURTLE (Chelonia mydas), LEATHERBACK SEA TURTLE (Dermochelys coriacea), LOGGERHEAD TURTLE (Caretta caretta), KEMP S RIDLEY SEA TURTLE (Lepidochelys kempii), PIPING PLOVER (Charadrius melodus), SHIRLEY A. REYNOLDS, and ROBERT H. GODWIN, v. Plaintiffs, COUNTY COUNCIL OF VOLUSIA COUNTY FLORIDA, a political subdivision of the State of Florida, UNITED STATES FISH AND WILDLIFE SERVICE: STEVEN A. WILLIAMS Director; and UNITED STATES DEPARTMENT OF THE INTERIOR: GALE A. NORTON, Secretary, Defendants. PLAINIFFS MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT VOLUSIA COUNTY S (DISPOSITIVE) MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT Plaintiffs, ATLANTIC GREEN SEA TURTLE (Chelonia mydas), LEATHERBACK SEA TURTLE (Dermochelys coriacea), LOGGERHEAD TURTLE (Caretta caretta), KEMP S RIDLEY SEA TURTLE (Lepidochelys kempii), PIPING PLOVER (Charadrius melodus), SHIRLEY A. REYNOLDS, and ROBERT H. GODWIN, pursuant to

2 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 2 of (b), Rules of the United State District Court for the Middle District of Florida, file this Memorandum of Law in Opposition to the defendant, County Council of Volusia County Florida s Motion to Dismiss Plaintiffs Amended Complaint ( Motion ) and accompanying Memorandum of Law ( Memorandum ), and state: 1. The Motion requests this Court to dismiss this action. [Motion, p.9]. The Motion is not directed to any specific count in the Amended Complaint for Declaratory and Injunctive Relief; notably, some counts are pled in the alternative. [Amended Complaint, pp ]. 2. The Memorandum includes a standard of review section that argues that a motion to dismiss should be granted when, accepting the well pled facts as true and construing the complaint in the light most favorable to plaintiffs, it is clear no construction of the factual allegations will support a cause of action. [Memorandum, pp.6-7]. Plaintiffs argue that this action should not be dismissed unless it appears beyond a doubt that they can prove no set of facts in support of any claim for relief. See, U.S. v. Baxter Intern, Inc., 345 F.3d 866, 880 (11 th Cir. 2003); Roberts v. Fla. Power & Light Co., 146 F.3d 1305, 1307 (11 th Cir. 1998). This sufficiency threshold is exceedingly low. U.S. v. Baxter Intern, Inc., 345 F.3d at

3 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 3 of Notwithstanding this standard of review assertion, defendant County has included several hundred pages of exhibits to the Memorandum, and the Motion is based upon matters not alleged in the plaintiffs Amended Complaint for Declaratory and Injunctive Relief. The Court should not consider these exhibits with regard to the Motion. Further, the Motion contains assertions regarding the Background of the Action and regarding the Amended Complaint that are not referenced to specific allegations in the Amended Complaint, or which purport to generally deny such assertions, and should not be considered for purposes of the Motion. [Motion, pp. 1-4]. County s Non-Availability Assertions 4. The Motion sets out four non-availability arguments. [Motion, 17-26]. These arguments are: non-availability of judicial review [Motion, 17-20]; non-availability of wrongful withholding theory [Motion, 21-22]; nonavailability of Failure to Enforce theory [Motion, 23-24]; and non-availability of Reinitiation of consultation theory. [Motion, 25-26]. None of these arguments are tied to specific counts of the Amended Complaint; none provide a basis for the dismissal of this action. 3

4 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 4 of 19 These arguments really speak to some of plaintiffs claims against the federal defendants; the federal defendants filed an answer on January 11, 2005, rather than a motion to dismiss. 5. No federal agency action is at issue with respect to plaintiffs de novo claims regarding defendant County s alleged violations of the take of listed species under 16 U.S.C. s [Amended Complaint, Counts I and II]. 6. Count I of the Amended Complaint alleges the County s unlawful taking of Piping Plovers in violation of the ESA and implementing regulations for activities taken under the Beach Code. Allegedly, defendant County applied for an incidental take permit for Piping Plovers, but one was not issued. [Amended Complaint, 43]. Defendant County asks the Court to consider a 1996 Biological Opinion that no incidental take is anticipated for piping plovers. [Motion, 5; Memorandum, pp.2-3 and 13; Ex. 2, p.3; Ex. 5, p. 2]. 7. Plaintiffs object to consideration of matters not alleged in the Amended Complaint. However, even if it were proper to consider matters outside of the Complaint, a 1996 expectation that no take is anticipated is legally insufficient to thwart this Court s consideration of a 2004 claim of unlawful taking of Piping Plovers. Effective August 9, 2001, defendant USFWS s Final Rule designated critical 4

5 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 5 of 19 habitat for wintering piping plovers in unit FL-34 (Volusia County). [66 Fed. Reg. p.36038, et seq. (July 10, 2001)]. The Amended Complaint does not allege that the defendants considered the critical habitat designation and piping plovers with regard to any of the ten amendments to the ITP or the defendant County s renewal application. [See Amended Complaint, 68-81]. The critical habitat designation was not considered in Loggerhead Turtle v. County Council of Volusia County, Fla., 120 F.Supp.2d 1005 (M.D. Fla. 2000). Piping Plovers are a migratory bird and are allegedly being taken within critical habitat that was designated after the ITP was issued. Critical habitat designations serve to protect species vulnerable to extinction. Forest Guardians v. Babbitt, 174 F.3d 1178, 1185 (10 th Cir. 1999). 8. As to endangered or threatened sea turtles, Count II of the Amended Complaint seeks declaratory and injunctive relief as to defendant County s unauthorized take of listed sea turtles. [Amended Complaint, 1-51, 63-64, 82-84, 103 and 132]. No federal agency action is at issue. Plaintiffs allege that by operation of the Administrative Procedure Act and USFWS s ESA regulations, defendant County s incidental take authorization ( ITP ) expired and accordingly defendant County is liable for sea turtle take caused by activities 5

6 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 6 of 19 authorized under the Beach Code, as amended. See, 5 U.S.C. s. 558(c)(2); 50 C.F.R. ss (a), As to endangered or threatened sea turtles, Count III of the Amended Complaint seeks declaratory and injunctive relief alleging that the federal defendants have established a pattern, practice and policy of indefinitely extending defendant County s expired ITP (or alternatively issued a de facto renewal permit), have taken agency action to issue amendments to an expired ITP, and have unreasonably withheld publication of the statutorily-required Federal Register notice as to the County s application. [Complaint, 1-27, 42-43, 52-81, & ]. These actions and failures to act are alleged to constitute agency action under 5 U.S.C. ss. 551 (6),(8),(13); 706(2); 16 U.S.C. s. 1539(c). 10. The Motion and Memorandum do not credit the general presumption that federal agency actions are subject to judicial review. 16 U.S.C. s. 706(a); Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, --- L.Ed.2d 281 (1997). See also, Fahim v. U.S. Atty. Gen., 278 F.3d 1216, 1217 (11 th Cir. 2002). Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), only held that an agency s decision not to take enforcement action was not agency action subject to judicial review. In addition, in the case at bar, there is law to be applied cited provisions of the ESA and 6

7 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 7 of 19 implementing regulations. Most of the defendant County s citations are inapposite as to the allegations in the Amended Complaint. Defendant County s reliance on Loggerhead Turtle v. County Council of Volusia County, Fla., 120 F.Supp.2d 1005 (M.D. Fla. 2000), ignores the significance of the timing of the reconsultation... built into the permitting procedure. Id. at The Court noted that the ITP was to expire in 2001, but did not anticipate that the defendant County would fail to make a timely and sufficient renewal application, or that the federal defendants would withhold publication of a Federal Register notice of receipt of the ITP application or fail to take action on the renewal for years. 11. National Parks Conservation Ass n. v. Norton, 324 F.3d 1229 (11 th Cir. 2003), provides in part: We agree, as a general matter, that an administrative agency cannot legitimately evade judicial review forever by continually postponing any consequence-laden action and then challenging federal jurisdiction on final agency action grounds. See, Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001)( As this court has noted in the past, where an agency is under an unequivocal statutory duty to act, failure to so act constitutes, in effect, an affirmative act that triggers final agency action review...; Sierra Club v. Thomas, 828 F.2d 783, 793 (D.C. Cir. 1987)... 7

8 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 8 of 19 Notably, in National Parks Conservation Ass n. v. Norton, the federal agency had published notice of its pending decision-making action and draft environmental impact statement, and had received public comments which were being considering in the imminent formulation of, a final decision regarding the future of the Stiltsville buildings. Id. at The Amended Complaint alleges the federal defendants have not published the ESA-required notice of the County s application, which publication is a mandatory duty under the ESA. [Amended Complaint, 94]. Shall means shall. See, Forest Guardians v. Babbitt, 174 F.3d 1178, 1187 (10 th Cir. 1999). 12. National Parks Conservation Ass n. v. Norton extensively discussed Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, --- L.Ed.2d 281 (1997) and Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). The 11 th Circuit noted that the Biological Opinion at issue in Bennett v. Spear had direct and appreciable legal consequences. See, National Parks Conservation Ass n. v. Norton, 324 F.3d at 1237, citing Bennett v. Spear, 520 U.S. 178, 117 S.Ct. at The 11 th Circuit summarized the applicable standard: whether rights or obligations have been fixed by the agency s behavior; and whether it has taken or refused to take action so as to impose any legal consequence 8

9 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 9 of 19 on any party. National Parks Conservation Ass n. v. Norton, 324 F.3d at See also, Tennessee Valley Auth. v. Whitman, 336 F.3d 1237, 1248 (11 th Cir. 2003), rehearing denied, 82 Fed. Appx. 220, cert. denied, Leavitt v. Tennessee Valley Auth., 124 S.Ct Count III sufficiently alleges that the federal defendants behavior have real consequences on the rights and obligations of parties to this action, including: amending the ITP after its expiration, consideration of defendant County s untimely renewal application as extending the expired permit, and failure to publish Federal Register notice of the application. 14. Count IV of the Amended Complaint is, in part, based on the federal defendants alleged failure to adequately evaluate environmental impacts in conjunction with the four most-recent ITP amendments (starting on January 24, 2003) and the ITP renewal application. [Amended Complaint, 1-27, 42-43, & ]. The last environmental assessment and finding of no significant impact was noticed in the March 11, 1996 Federal Register. [Amended Complaint, Ex. 3]. The application and ITP permit were for a five-year period. [Amended Complaint, Ex. 3 & 4]. Since that time, portions of the ITP permit area have been designated as critical habitat for the Piping Plover, much of the ITP 9

10 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 10 of 19 permit area is alleged to have been substantially eroded by tropical storms, and defendant County has amended its Beach Code. [See, 61 Fed. Reg. p. 9717; 66 Fed. Reg. pp.36038, 36107, 36119; Amended Complaint, 43-46, & Comp. Ex. 3]. Each of these arguably requires further NEPA review as extraordinary circumstances. See, 69 Fed. Reg Count V of the Amended Complaint, is plead in the alternative to Counts II-IV. It is a citizen suit to enforce the terms of federal regulations and the ITP as amended no agency action is directly at issue. [Complaint, 1-18, 28-36, 42-55, 60-85, 95-96, & ]. See, 16 U.S.C. ss. 1538(a)(1)(B) and (g), 1540(g), 50 C.F.R. s The Enforcement aspect of the ITP includes the statement: In the event the identified problems are not corrected by the County within 2 weeks, the U.S. Fish and Wildlife Service will initiate enforcement action against the Permittee. [Amended Complaint, Ex. 4, page 22]. The Amended Complaint alleges that defendant County has failed to timely prevent motor vehicle operation in the conservation zones notwithstanding the Defendant USFWS s identification of that problem. [Amended Complaint, ]. 16. It is illogical to suggest that a citizen can sue to enforce the ESA to prevent unauthorized take of listed species, but cannot sue to enforce alleged violations of 10

11 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 11 of 19 federal regulations that require compliance with the conditions of an incidental take permit, which is a limited, conditional grant to take specific listed species under detailed ITP/HCP terms and conditions. 17. Count VI of the Amended Complaint is also pled in the alternative to Counts II, III and IV. [Amended Complaint, 1-14, 16-17, 25-27, 52-55, 60-62, 65-68, 71-76, 79-81, 95-96, 100, & ]. It seeks to enforce mandatory language in 16 U.S.C. s. 1539(a)(2)(c)( Secretary shall revoke a permit...if he finds that the permittee is not complying with the terms and conditions... ). 18. Heckler v. Chaney, supra, did not construe the ESA including 16 U.S.C. s. 1539(a)(2)(c). Unlike the Food and Drug Administration statutes at issue in Heckler v. Chaney, which were either permissive or which required the Attorney General to prosecute crimes, in enacting 16 U.S.C. s. 1539(a)(2)(c), Congress directed the Secretary of the Interior to revoke a ITP upon a finding of non-compliance. 19. Notwithstanding the discussion of Heckler v. Chaney, and citation to 50 C.F.R. ss and in Loggerhead Turtle v. County Council of Volusia County, Fla., 120 F.Supp.2d 1005, (M.D. Fla. 2000), plaintiffs should be given the opportunity to prove that the defendant Norton, through USFWS staff, has found that defendant County 11

12 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 12 of 19 is not complying with the terms and conditions of the ITP, especially with regard to the prohibition on vehicles in the conservation zones. 16 U.S.C. s. 1539(a)(2)(c) speaks in terms of a finding regarding an ITP a specific type of permit; the cited regulations concern action to suspend or revoke any type of permit issued under 50 C.F.R. Subpart C. This more-specific statute applicable to ITPs does not apply the jeopardy standard regarding the statutory nondiscretionary duty to revoke an ITP upon a finding of noncompliance. 20. Plaintiffs allege a finding of non-compliance with an ITP. [See Amended Complaint, , Ex. 8 & 10]. Primary Jurisdiction 21. Smith v. GTE Corp., 236 F.3d 1292, 1298 (11 th Cir. 2001)(citations omitted) acknowledges that a court may dismiss or stay an action pending a resolution of some portion of the actions by an administrative agency. Primary jurisdiction comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative agency; in such case the judicial process is suspended pending referral of such issues to the administrative body for its views. The 12

13 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 13 of 19 federal defendants have not moved to dismiss based on the primary jurisdiction doctrine. 22. Plaintiffs have alleged compliance with the ESA s only jurisdictional requirement the 60-day notice of intent to sue requirement, including notice to the federal defendants. None of the claims raised by plaintiffs have been placed in the special competence of the federal defendants to the contrary, the ESA specifically permits citizens suits; and the plaintiffs APA claims are matters to be resolved by this Court de novo, not upon review of some action by the federal defendants. Res Judicata 23. Norfolk Southern Corp. v. Chevron, U.S.A., 279 F.Supp.2d 1250, 1260 (M.D. Fla. 2003), sets out the applicable requirements for defendant County s assertion: (1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action. (citing Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1187 (11 th Cir. 2003); In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11 th Cir. 2001). 24. The third and fourth required criteria are absent in the case at bar. The Piping Plover and Robert H. Godwin 13

14 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 14 of 19 were not parties to Loggerhead Turtle v. County Council of Volusia County, Fla., 896 F.Supp (M.D. Fla. 1995); Loggerhead Turtle v. County Council of Volusia County, Florida, 148 F.3d 1231 (11 th Cir. 1998), cert. denied, 526 U.S. 1081, 119 S. Ct. 1488, 143 L.Ed.2d 570 (1999); Loggerhead Turtle v. County Council of Volusia County, Fla., 92 F.Supp.2d 1296 (M.D. Fla. 2000); and Loggerhead Turtle v. County Council of Volusia County, Fla., 120 F.Supp.2d 1005 (M.D. Fla. 2000) ( Loggerhead litigation ). Nor are the causes of action identical: for example, there have been considerable changes in circumstances, including: the piping plover critical habitat designation in 2001, new observations of the piping plover including observations in , dramatically-changed beach conditions from the tropical storms of 2004, and the expiration of, amendments to, and belated renewal application regarding the ITP. 25. Moreover, a priori, ESA violations alleged to have occurred after the final judgment was issued on May 17, 2000 in the Loggerhead litigation could not have been considered by the Court as part of the administrative record. The Plaintiffs have amended their Complaint to address alleged violations of the ITP since March 24, 2000 the date of the partial summary judgment in the Loggerhead litigation, reconsideration or amendment of which was denied by the 14

15 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 15 of 19 Court on May 17, Loggerhead Turtle v. County Council of Volusia County, Fla., 120 F.Supp.2d at The May 17, 2000, judgment was based upon the Second Amended Complaint for Declaratory and Injunctive Relief, filed on or about April 29, Collateral Attack 26. The Amended Complaint alleges violations that occurred since the date of the prior Loggerhead judgment March 24, Moreover, the prior Loggerhead judgment did not adjudicate the current facts and circumstances regarding the take of Piping Plover in designated critical habitat Unit FL-34, the last four amendments to the ITP, or the 2004 changes to the beach caused by tropical storm events. Stare Decisis 27. Stare Decisis accords a court discretion to depart from one of its own prior holdings if a compelling reason to do so exists. Johnson v. DeSoto County Bd. of Com rs., 72 F.3d 1556, 1559 (11 th Cir. 1996)(emphasis supplied, citation omitted). 28. None of the Counts in the Amended Complaint in this action are contrary to any holding in the Loggerhead litigation. The decision to issue the ITP is not at issue. The decision not to revoke was based upon a record developed 15

16 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 16 of 19 prior to the events alleged in the Amended Complaint. No attack on the failure to reinitiate consultation is alleged. Moreover, even if a claim in the Amended Complaint were contrary to a holding in the Loggerhead litigation, dismissal is not mandatory. McGinley v. Houston, 361 F.3d 1328, 1331 (11 th Cir. 2004). Ripeness & Exhaustion of Administrative Remedies 29. Defendant County s ripeness and exhaustion arguments can only go to the pending ITP renewal action. [Memorandum pp ]. Since take of Piping Plover was not authorized in the ITP, the renewal action is irrelevant to Count I. Count II alleges that unlawful take of listed sea turtles is occurring and seeks to prevent such unauthorized take of listed sea turtles in the future based upon the expiration of the ITP by operation of the law and implementing ESA regulations. 30. Counts III and IV allege either a de facto renewal, or unlawful amendments of an expired ITP, and the failure to honor the statutory Federal Register notice requirement as to the defendant County s application. Exhaustion of administrative remedies is generally not jurisdictional. Tennessee Valley Auth. v. U.S.E.P.A., 278 F.3d 1184, (11 th Cir. 2002), withdrawn in part, Tennessee Valley Auth. v. Whitman, 336 F.3d 1237, 1248 (11 th Cir. 2003), 16

17 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 17 of 19 rehearing denied, 82 Fed. Appx. 220, cert. denied, Leavitt v. Tennessee Valley Auth., 124 S.Ct Even assuming that any administrative remedies were available as to these Counts, they would clearly be inadequate to protect listed species from unlawful take. Id. 31. Counts V and VI, in the alternative, allege that if the ITP is in force, the ITP as amended is being violated and that the federal defendants had a duty to revoke the ITP given findings of non-compliance including continued vehicle operation in the conservation zones. WHEREFORE, the Plaintiffs respectfully request this Court to deny the County s Motion to Dismiss. Dated this 17th day of January, Respectfully submitted, /s/ Ross Stafford Burnaman Ross Stafford Burnaman Fla. Bar No Ross Stafford Burnaman - Attorney at Law 1018 Holland Drive Tallahassee, Florida (850) Trial Counsel for Plaintiffs CERTIFICATE OF SERVICE 17

18 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 18 of 19 I HEREBY CERTIFY that on this 17th day of January 2005, a true and correct copy of the foregoing was served by electronic filing to: Mary Brennan, Esquire Assistant County Attorney Jamie E. Seaman Assistant County Attorney Volusia County 123 West Indiana Avenue Deland, Florida Paul I. Perez United States Attorney Middle District of Florida 400 North Tampa Street Tampa, Florida Scott Park Assistant United States Attorney Middle District of Florida 501 West Church Street, Suite 300 Orlando, Florida Mark A. Brown, Senior Trial Attorney John S. Most, Trial Attorney Thomas L. Sansonetti, Assistant Attorney General Jean Williams, Section Chief U.S. Department of Justice P.O. Box 7369 Washington, D.C Respectfully submitted, /s/ Ross Stafford Burnaman Ross Stafford Burnaman Fla. Bar No Ross Stafford Burnaman - Attorney at Law 18

19 Case 6:04-cv GAP-KRS Document 55 Filed 01/17/2005 Page 19 of Holland Drive Tallahassee, Florida (850) Trial Counsel for Plaintiffs 19