HATCHETT, Chief Judge:
The loggerhead sea turtle (Caretta caretta) and green sea turtle (Chelonia mydas) with appellants Shirley Reynolds and Rita Alexander (collectively the Turtles) challenge the district court's dismissal of their case brought pursuant to the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544 (1994). They present: (1) an issue of first impression, whether the incidental take permit exception to the ESA's "take" prohibition applies to an activity performed as a purely mitigatory measure upon which the issuing agency conditions the permit; (2) an issue of standing, whether a governmental entity's regulatory control of minimum wildlife protection standards can cause redressable injury to protected wildlife in locations where non-party governmental entities possess supplemental authority to regulate and/or exclusively control enforcement; and (3) an issue of pleading amendment, whether another federally protected sea turtle should have been allowed to join the Turtles as a party. We reverse on all issues and remand for further proceedings.
In 1978, the United States Fish and Wildlife Service (Service) listed the loggerhead sea turtle as a threatened species and the green sea turtle as an endangered species. See 50 C.F.R. § 17.11(h) (1997).
On June 8, 1995, the Turtles instituted this lawsuit in the United States District Court for the Middle District of Florida under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(A). Seeking declaratory, permanent injunctive and — in a separate, contemporaneously-filed motion — preliminary injunctive relief, the Turtles alleged that appellee County Council of Volusia County, Florida's (Volusia County) "refusal to ban beach driving during sea turtle nesting season and ban beachfront artificial light sources that adversely impact sea turtles" violates the ESA's "take" prohibition, 16 U.S.C. § 1538(a)(1)(B). The Turtles quoted excerpts from their federally-issued recovery plans that "[a]rtificial beachfront lighting from buildings, streetlights, dune crossovers, vehicles and other types of beachfront lighting have been documented in the disorientation (loss of bearings) and misorientation (incorrect orientation) of hatchling turtles" and that "nesting females avoided areas where beachfront lights were the most intense" or "abort nesting attempts at a greater frequency in lighted areas." (Quoting United States Fish & Wildlife Serv., Dep't of the Interior; Nat'l Marine Fisheries Serv., Dep't of Commerce, Recovery Plan for U.S. Population of Loggerhead Turtle (Caretta caretta) (1991), at 6-7; United States Fish & Wildlife Serv., Dep't of the Interior; Nat'l Marine Fisheries Serv., Dep't of Commerce, Recovery Plan for U.S. Population of Atlantic Green Turtle (Chelonia mydas) (1991), at 4-5.) As exhibits, the Turtles advanced reports of fatal "disorientations" and "misorientations," as well as "false crawls" (aborted nesting attempts) that volunteer "Turtle Patrol" members had witnessed throughout Volusia County.
Volusia County's initial response to the complaint was twofold. First, on July 12, 1995, it answered the complaint. Second, on July 16, 1995, it applied to the Service for an "interim" incidental take permit. See 16 U.S.C. § 1539(a). After a hearing, the district court granted in part the Turtles' motion for a preliminary injunction as to beach driving, but denied preliminary relief as to artificial beachfront lighting. See Loggerhead Turtle v. County Council of Volusia County, Fla., 896 F.Supp. 1170, 1178-83 (M.D.Fla.1995).
In September 1995, the district court entered a pretrial order that: (1) set a deadline of November 1, 1995, for the parties to file motions to amend and add parties; (2) closed discovery on February 1, 1996; and (3) scheduled trial for April 1996. On October 27, 1995, the Turtles filed a motion for leave to amend their original complaint to add the leatherback sea turtle (Dermochelys coriacea)
Prior to the close of discovery, Volusia County moved for partial summary judgment. The county argued that the Turtles lacked standing to assert claims for takes in non-party municipalities that regulate and enforce their own lighting restrictions. On July 9, 1996, the district court granted the motion, concluding that: (1) the Turtles failed to show any causal connection between Volusia County's regulatory acts and the alleged takes; and (2) the court lacked the power to redress the alleged injury without joinder of those municipalities as defendants.
In the same order, the district court denied the Turtles' motion for leave to amend, reasoning that: (1) the court lacked subject matter jurisdiction over the leatherback sea turtle since it was unable to locate a copy of the Turtles' notice of intent to sue letter that their motion referenced; (2) the Turtles unduly delayed in filing the motion; and (3) Volusia County would be prejudiced if the court extended the preliminary injunction to include the leatherback sea turtle whose nesting season starts earlier every spring.
After Volusia County obtained another trial continuance, the Service issued the county an incidental take permit on November 21, 1996. The next day, Volusia County moved the district court to dissolve the preliminary injunction and dismiss the Turtles' case, contending that the permit mooted further proceedings. Although conceding that the permit authorized incidental takes through beach driving, the Turtles contended that it did not authorize incidental takes through artificial beachfront lighting. The district court agreed with Volusia County and closed the case. This appeal follows.
We address three issues: (1) whether the district court erred in concluding that Volusia County's incidental take permit excepted it from liability for taking protected sea turtles through artificial beachfront lighting; (2) whether the district court erred in concluding that the Turtles lack standing to sue Volusia County for takes that occur in the non-party municipalities of Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach that have supplemental authority to regulate and/or independently enforce their own artificial beachfront lighting restrictions; and (3) whether the district court abused its discretion in denying the Turtles' motion for leave to amend their original complaint to include the leatherback sea turtle as a party. Our standard of review for the first two issues is de novo. See Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Engineers, 87 F.3d 1242, 1246 (11th Cir.1996) ("We review questions of law de novo[.]"); Engineering Contractors Ass'n of South Fla. v. Metropolitan Dade County, 122 F.3d 895, 903 (11th Cir.1997) ("[T]his Court reviews standing de novo."), cert. denied, ___ U.S. ___, 118 S.Ct. 1186, ___ L.Ed.2d ___ (1998); Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1404 (11th Cir.1994) ("A district court's decision to grant or deny leave to amend is reviewed for abuse of discretion."), cert. denied, 513 U.S. 1113, 115 S.Ct. 906, 130 L.Ed.2d 788 (1995).
As to the first issue, the Turtles contend that Volusia County's incidental take permit authorizes only incidental takes of sea turtles from beach driving, not from artificial beachfront lighting. The Turtles argue that to fall within the incidental take permit exception to the "take" prohibition, the Service's permission must be express and activity-specific. The Turtles also assert that the district court could not infer such permission from the Service's conditioning the permit on lighting-related mitigatory measures.
Volusia County responds that under the permit, it must survey every light source, study their impacts and implement methods to correct light sources that misorient sea turtles. Volusia County argues that given those extensive mitigatory requirements, the Service clearly contemplated that it be excepted
With regard to the second issue, the Turtles contend that the court can fairly trace sea turtles' lighting-related "harm" in the non-party municipalities of Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach to Volusia County's regulatory acts. The Turtles claim that Volusia County exercises sufficient regulatory authority in imposing county-wide minimum artificial beachfront lighting restrictions and exempting Daytona Beach and Daytona Beach Shores from any such restrictions. Furthermore, the Turtles assert that the district court possesses the power to redress any and all lighting-related takes. To hold otherwise, the Turtles posit, would violate the accepted notion that both a person whose actions adversely affect a protected species and a governmental body that authorizes that person's actions can violate the ESA's "take" prohibition.
Focusing only on the municipalities of Daytona Beach and Daytona Beach Shores, Volusia County contends that takes in those locations are traceable only to those municipalities' independent regulatory and enforcement acts or omissions. According to Volusia County, the Turtles should have sued those municipalities if they believed that artificial beachfront lighting-related takes occurred on their beaches. Additionally, Volusia County argues that its lack of authority to regulate and enforce lighting restrictions in those municipalities left the district court without power to redress the alleged "harm." Moreover, Volusia County contends that the Turtles' requested relief, if granted, would effectively force it to pass a new ordinance or amend its existing one, violating the separation of powers.
Regarding the third issue, the Turtles assert that the district court should have "freely given" them leave to amend their complaint to add the leatherback sea turtle as a party. They contend that, contrary to the district court's findings: (1) they sufficiently notified both the Service and Volusia County of their intent to sue for takes of the leatherback sea turtle through artificial beachfront lighting; (2) they discovered new information after they filed the original complaint; and (3) Volusia County would not have been unduly prejudiced because the Turtles did not ask to amend the preliminary injunction and the parties included the leatherback sea turtle in discovery.
Volusia County responds that the Turtles' notice of intent to sue inadequately referred to the leatherback sea turtles as "nesting" on Volusia County beaches, as opposed to being "taken." Volusia County contends that the Turtles possessed evidence of takes at least three months prior to filing their motion for leave to amend. Finally, Volusia County points to the "additional expense and possible delay" that the Turtles' amendment would cause.
Under the ESA, it is unlawful to "take" endangered or threatened wildlife unless a statutory exception applies. 16 U.S.C. § 1538(a)(1)(B) (1994) (the "take" prohibition); see 50 C.F.R. § 17.31(a) (1997) (the "take" prohibition applies to threatened as well as endangered wildlife). Defined broadly, "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect[.]" 16 U.S.C. § 1532(19); see Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 115 S.Ct. 2407, 2416, 132 L.Ed.2d 597 (1995) ("Congress intended `take' to apply broadly to cover indirect as well as purposeful actions."). It is equally unlawful "to attempt to commit, solicit another to commit, or cause to be committed" a "take." 16 U.S.C. § 1538(g).
"Harass" and "harm," within the meaning of "take," are defined through regulation. The Secretary of the Interior, through the Service, has construed "harass" as "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering." 50 C.F.R. § 17.3; see 16 U.S.C. § 1533(d) (delegating regulatory authority to the "Secretary"); Sweet Home, 515 U.S. 687, 115 S.Ct. at 2410
The crux of the Turtles' artificial beachfront lighting allegations centered on "harm," "an act which actually kills or injures wildlife" that may include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3 (the "harm" regulation).
The incidental take permit exception to the "take" prohibition and its regulatory constructions, including the "harm" regulation, can be found in 16 U.S.C. § 1539(a). As relevant to this case, the Service "may permit, under such terms and conditions as [it] shall prescribe ... any taking otherwise prohibited by section 1538(a)(1)(B) of [the ESA] if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B).
Upon receiving a complete application package, the Service must publish notice in the Federal Register and provide the public an opportunity to comment on whether the Service should issue the permit. 16 U.S.C. § 1539(a)(2)(B); 50 C.F.R. § 17.22 ("The Director [of the Service] shall publish notice in the Federal Register of each application for [an incidental take permit]. Each notice shall invite the submission from interested parties, within 30 days after the date of the notice, of written data, views, or arguments with respect to the application."); 50 C.F.R. § 17.32(b)(1)(ii); see, e.g., Notice of Receipt of an Application for an Incidental Take Permit, 61 Fed.Reg. 9716 (1996) (summarizing Volusia County's application). Upon expiration of the public comment period, the Service must issue the permit if it finds that:
16 U.S.C. § 1539(a)(2)(B); 50 C.F.R. § 17.22(b)(2); 50 C.F.R. § 17.32(b)(2).
An incidental take permit "may authorize a single transaction, a series of transactions, or a number of activities over a specific period of time." 50 C.F.R. § 17.22; 50 C.F.R. § 17.32. Additionally,
50 C.F.R. § 13.42; see also 50 C.F.R. § 220.42. Finally, the applicant's failure to comply "with the terms and conditions of the permit" requires the Service to revoke the permit. 16 U.S.C. § 1539(a)(2)(C).
We turn first to the Turtles' contention that Volusia County's incidental take permit does not expressly authorize takings through artificial beachfront lighting. Such express authority, if it exists, can be found only within the four corners of the permit. See generally 16 U.S.C. § 1539(a) (issuing official must "prescribe" the permit's "terms and conditions"). In its introductory headline, Volusia County's incidental take permit states that the Service "authorizes incidental take within the Defined Area or County Beaches, associated with the activities described in Condition F below, of [appellant loggerhead sea turtle, appellant green sea turtle, leatherback sea turtle, hawksbill sea turtle (Eretmochelys imbricata) and Kemp's ridley sea turtle (Lepidochelys kempii)] conditioned upon implementation of the terms and conditions of this Permit." Condition F, in turn, lists eleven "authorized" types of incidental take:
(Emphasis added.) Indisputably, these eleven types of incidental take relate only to vehicular access on Volusia County's beaches. None of the eleven authorized activities listed in Condition F concerns artificial beachfront lighting. The only form of lighting mentioned in Condition F is vehicular headlights.
Although the majority of its conditions concern beach driving, the incidental take permit does address artificial beachfront lighting. Condition G of the permit, entitled "Mitigation/Minimization Measures," lists fifteen categories of "measures [to] be employed by the Permittee to ensure that take is minimized and mitigated." These categories fall under the following general headings:
The mitigation measures relative to artificial beachfront lighting occupy less than two out of twenty-five pages of Volusia County's incidental take permit:
Condition G does not contain any language expressly authorizing takes of sea turtles through artificial beachfront lighting like that contained within Condition F.
In light of the foregoing, it is readily apparent that the incidental take permit exhaustively lists all authorized activities within Condition F and all mitigation measures within Condition G. Activities relative to driving on the beach are mentioned in both conditions. Activities relative to artificial beachfront lighting, however, are mentioned only in Condition G. Given the permit's structure, the express authority to take sea turtles through artificial beachfront lighting — if the Service had so intended — would be memorialized in Condition F. This absence is dispositive. Accordingly, Volusia County lacks the Service's express permission to take sea turtles incidentally through artificial beachfront lighting.
Volusia County argues that even if it lacks the Service's express permission, it has the Service's implied permission to take sea turtles incidentally through artificial beachfront lighting because the Service expressly conditioned the permit on Volusia County's implementation of detailed lighting-related mitigatory measures. This argument presents an issue of first impression in this and other circuits, whether the incidental take permit exception (16 U.S.C. § 1539(a)) to the "take" prohibition (16 U.S.C. § 1538(a)(1)(B)) applies to, and thus excepts from liability, an activity performed as a purely mitigatory measure upon which the Service conditions the permit. We hold that it does not.
The ESA's text and the Service's regulations provide every indication that incidental take permission must be express and activity-specific. To be excepted from liability, the ESA mandates that the "take" be "incidental to ... the carrying out of an ... activity." 16 U.S.C. § 1539(a)(1)(B) (emphasis added). Moreover, in addressing the requirements of the habitat conservation plan, the ESA semantically separates the "action" at issue from the applicant's intentions to "mitigate" the taking. Compare 16 U.S.C. § 1539(a)(2)(A)(iii) ("what alternative actions to such taking the applicant considered")
The statutory dividing line between activities sought to be permitted and mitigatory measures is further reinforced in the Service's regulations. The Service requires applicants to describe completely "the activity sought to be authorized." 50 C.F.R. §§ 17.22(b)(1)(i), 17.32(b)(1)(iii)(A) (emphasis added); see also 50 C.F.R. § 222.22(b)(4) (incidental take permit applications to the National Marine Fisheries Service must include a "detailed description of the proposed activity") (emphasis added).
Even the Service's informal publication advises applicants to describe specifically "all actions ... that ... are likely to result in incidental take" so that the permit holder "can determine the applicability of the incidental take authorization to the activities they undertake." United States Fish & Wildlife Serv., Dep't of the Interior; Nat'l Marine Fisheries Serv., Dep't of Commerce, Habitat Conservation Planning Handbook (Nov.1996), at 3-12 to 3-13 (emphasis added). Otherwise, the Service warns, "broadly defined types of activities ... generally would not be authorized." Habitat Handbook, at 3-13 (emphasis added).
The content of Volusia County's application and correspondence with the Service reflects the statutory and regulatory dividing line between authorized activities and mitigatory measures. In its initial application to the Service, Volusia County "complete[ly] describ[ed] ... the activity sought to be authorized" as "vehicular access to Volusia County beaches[.]" (Citing 50 C.F.R. §§ 17.22(b)(1)(i).) A follow-up letter from a Service official acknowledging receipt of the application summarized that Volusia County sought "a permit to cover any incidental take of sea turtles that may occur on Volusia
(Emphasis added.) Finally, in a responsive letter to the Service, an assistant county attorney reiterated that "Volusia County is seeking an Incidental Take Permit for vehicles [sic] access to the beaches. However, Volusia County has addressed lighting throughout its permit application as a mitigating factor." (Emphasis added.)
Contrary to Volusia County's position, no published case law even purports to suggest that purely mitigatory measures fall within the scope of the incidental take permit exception, 16 U.S.C. § 1539(a). In Ramsey v. Kantor, the Ninth Circuit addressed whether the States of Oregon and Washington that were neither federal agencies nor applicants for an incidental take statement issued under 16 U.S.C. § 1536(b) may lawfully take federally protected fish without first obtaining an incidental take permit under 16 U.S.C. § 1539(a). 96 F.3d 434, 437 (9th Cir.1996).
Volusia County argues that the Service "clearly anticipated" takes resulting from artificial beachfront lighting in the incidental take permit, just as the issuing agency in Ramsey "clearly anticipated" takes resulting from salmon fishing regulations in the incidental take statement. 96 F.3d at 442. We are not convinced. As a threshold matter, the Ramsey court gave no indication that Oregon's and Washington's salmon fishing regulations served as purely mitigatory measures, as does Volusia County's artificial beachfront lighting activities.
In any event, the law governing incidental take statements issued under 16 U.S.C. § 1536(b), the statutory source in Ramsey, differs from the law governing incidental take permits issued under 16 U.S.C. § 1539(a), the statutory source in this case. See generally Ramsey, 96 F.3d at 439. First, the issuing agency's prerequisite findings are not the same. To permit an incidental taking under 16 U.S.C. § 1536(b), the issuing agency must conclude, in pertinent part, that:
16 U.S.C. § 1536(b)(4) (incorporating by reference 16 U.S.C. § 1536(a)(2)).
16 U.S.C. § 1539(a)(2)(B) (incorporating by reference 16 U.S.C. § 1539(a)(2)(A)(iv)). Both, of course, require a finding that the take sought to be authorized will be "incidental." Both also focus on the ultimate effect of the incidental take on the species. See 16 U.S.C. § 1539(a)(2)(B)(iv) ("the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild"); 50 C.F.R. § 402.02 (proposed action "jeopardizes" the species at issue if it can "reasonably ... be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species"). Only 16 U.S.C. § 1539, however, expressly requires a finding of future mitigation.
A second important difference between an incidental take statement (16 U.S.C. § 1536(b)) and an incidental take permit (16 U.S.C. § 1539(a)) lies in the broad language of 16 U.S.C. § 1536(o), which applies only to holders or beneficiaries of the former. Under section 1536(o), "any taking that is in compliance with the terms and conditions specified in [an incidental take statement issued under 16 U.S.C. § 1536(b)] shall not be considered to be a prohibited taking of the species concerned." 16 U.S.C. § 1536(o)(2).
Finally, the prohibitions that underlie the incidental take exceptions are unique. The prohibition that underlies the incidental take statement exception applies only to federal agencies, and imposes upon them a duty to consult with the statement-issuing agency and ensure that their proposed action will not likely "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat[.]" 16 U.S.C. § 1536(a)(2) (the "jeopardy" clause). The prohibition that underlies the incidental take permit exception applies to federal, state, local and private actors, and creates no similar duty to consult. See 16 U.S.C. §§ 1532(13), 1538(a)(1)(B) (the "take" prohibition). Additionally, the "jeopardy" clause applies to protected fish, wildlife and plants, whereas the "take" prohibition applies only to protected fish and wildlife. See 16 U.S.C. §§ 1532(16), 1536(a)(2), 1538(a)(1). Consequently, some activities — especially those relating to land use — are more likely to result in "jeopardy" than a "take." See Sweet Home, 115 S.Ct. at 2415 ("Section 7 [16 U.S.C. § 1536] imposes a broad, affirmative duty to avoid adverse habitat modifications that § 9 [16 U.S.C. § 1539] does not replicate, and § 7 does not limit its admonition to habitat modification that actually kills or injures wildlife.") (internal quotation marks and citations omitted); Andrew J. Doyle, Note, Sharing Home Sweet Home with Federally Protected Wildlife, 25 Stetson L.Rev. 889, 911 n. 174 (1996) ("[I]t is easier to `jeopardize' than it is to `harm.'"). These differences further militate against broadening the scope of the incidental take permit exception (16 U.S.C. § 1539(a)) even if some courts have suggested that section 1536(o) serves to broaden the scope of the incidental take statement exception (16 U.S.C. § 1536(b)). See Ramsey, 96 F.3d at 441 ("[A]ny taking ... that complies with the conditions set forth in the incidental take statement is permitted."). See generally Mount Graham Red Squirrel v. Espy, 986 F.2d 1568, 1580 (9th Cir.1993) ("Under [16 U.S.C. § 1536], ... limited takings may be permitted if they are incorporated into the `terms and conditions' of a Reasonable and Prudent Alternative drawn up in connection with the issuance of a Biological Opinion.").
The fact remains that no court has been presented with the issue facing us today. To be sure, protecting troubled wildlife is serious business. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 174, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) ("[T]he language, history, and structure of the [Endangered Species Act] indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities."); Strahan v. Linnon, 967 F.Supp. 581, 618 (D.Mass.1997) ("The Endangered Species Act is a powerful and substantially unequivocal statute."). Consequently, permits that purport to excuse takes of wildlife must be clear on their face. See 50 C.F.R. § 13.42 ("The authorizations on the face of a permit which ... permit a specifically limited matter are to be strictly construed[.]"); see also 50 C.F.R. § 220.42. In this case, "the Secretary ... permit[ted]" only takes of sea turtles incidental to driving on the beach. 16 U.S.C. § 1539(a)(1). Accordingly, the district court erred in dismissing the Turtles' claim that artificial beachfront lighting takes sea turtles.
"To satisfy the `case' or `controversy' requirement of Article III, which is the `irreducible constitutional minimum' of standing, a plaintiff must, generally speaking, demonstrate that he has suffered `injury in fact,' that the injury is `fairly traceable' to the actions of the defendant, and that the injury will likely be redressed by a favorable decision." Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997) (citations omitted). The district court found that the Turtles failed to satisfy both the "fairly traceable" and "redressability" prongs of the standing doctrine to complain of the "harm" that artificial beachfront lighting causes them within the municipalities of Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach. Those municipalities — not parties to this case — each possess at least some degree of regulatory authority and enforcement control over public and private artificial beachfront lighting within their borders.
"The fairly traceable element explores the causal connection between the challenged conduct and the alleged harm." Federal Deposit Ins. Corp. v. Morley, 867 F.2d 1381, 1388 (11th Cir.), cert. denied, 493 U.S. 819, 110 S.Ct. 75, 107 L.Ed.2d 41 (1989). Essentially, "this requirement focuses on whether the line of causation between the illegal conduct and injury is too attenuated." Morley, 867 F.2d at 1388 (internal quotation marks and citations omitted). The causal link may become "too attenuated" if the injury is "the result of the independent action of some third party not before the court." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and alterations omitted). On the other hand, standing is not defeated merely because the alleged injury can be fairly traced to the actions of both parties and non-parties. See generally Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (injury cannot be the result of "independent" third party action).
We are not asked to trace to Volusia County the Turtles' alleged "harm" in unincorporated beach communities like Wilbur-by-the-Sea, Ormond-by-the-Sea and Bethune Beach, as well as the incorporated Town of Ponce Inlet. Indisputably, Volusia County possesses exclusive local regulatory and enforcement control over artificial beachfront lighting in those locations. Instead, we are asked to review whether a "causal connection" exists between Volusia County's regulatory action and the Turtles' alleged "harm" within the municipalities of Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach. Morley, 867 F.2d at 1388. To answer this question, we examine Volusia County's charter and its artificial beachfront lighting ordinances.
Volusia County's charter requires it to protect the environment through county-wide ordinance:
Volusia County, Fla., Home Rule Charter, Art. II, § 202.4 (1989); see generally City of Ormond Beach v. County of Volusia, 535 So.2d 302, 303 & n. 3 (Fla. 5th D.C.A.1988) (discussing "charter counties such as Volusia" and noting that "[t]he charter provides that the county's ordinances prevail if it sets minimal standards protecting the environment by prohibiting or regulating air or water pollution or the destruction of the resources of the county belonging to the general public") (internal quotation marks omitted).
To this aim, in December 1989, Volusia County enacted Ordinance 89-60, entitled "Minimum Environmental Standards for Sea Turtle Protection." Volusia County, Fla., Ordinance No. 89-60, § 2 (1989). Seeking generally to "minimiz[e] the artificial light on the beaches[,]" the ordinance classifies its restrictions into three categories: (1) lights associated with new development; (2) lights associated with existing development; and (3) lights that are publicly owned. Volusia County, Fla., Ordinance No. 89-60, § 2 (amending Ordinance No. 88-15, Art. VI, §§ 601, 603, 604, 606 (1988)). The substance of these restrictions does not concern us today.
The majority of allegedly "harmful" lighting, however, stems from existing development and public lighting. The Minimum Environmental Standards for Sea Turtle Protection pertaining to existing development and public lighting do not apply at all to Daytona Beach and Daytona Beach Shores. See Volusia County, Fla., Ordinance No. 89-60, § 2 (amending Ordinance No. 88-15, Art. VI, §§ 602, 604, 606). Those two municipalities' beaches, according to Volusia County's ordinance, are not "utilized or likely to be utilized by sea turtles for nesting[.]" Volusia County, Fla., Ordinance No. 89-60, § 2 (amending Ordinance No. 88-15, Art. VI, § 602). According to the Turtles' complaint and the incidental take permit, neither municipality has enacted any lighting restrictions.
As to other incorporated areas of Volusia County, the Minimum Environmental Standards for Sea Turtle Protection pertaining to existing development and public lighting apply unless a municipality submits a proposed ordinance of its own that the county council determines to be in compliance with Ordinance 89-60's minimum standards. See Volusia County, Fla., Ordinance No. 89-60, § 2 (amending Ordinance No. 88-15, Art. VI, §§ 604, 606, 609). Ormond Beach and New Smyrna Beach are two municipalities that enforce their own county-approved version of Ordinance 89-60, as amended.
Volusia County later enacted its own artificial beachfront lighting ordinance that exceeded the minimum standards established in Ordinance 89-60, as amended. See Volusia County, Fla., Ordinance No. 90-22, § 3 (1990) (amending Ordinance No. 88-3, Art. XII, §§ 1201-1206). Ordinance 90-22 applies to unincorporated beach communities of Volusia County like Wilbur-by-the-Sea, Ormond-by-the-Sea
The Turtles' theory of causation is twofold. First, they contend that Volusia County's exempting Daytona Beach and Daytona Beach Shores from all lighting restrictions, including the Minimum Environmental Standards for Sea Turtle Protection in Ordinance 89-60, as amended, serves as a cause-in-fact of their "harm" in those two municipalities. Similarly, they contend that Ordinance 89-60, as amended, and Ordinance 90-22 are causally connected to their "harm" in Ormond Beach and New Smyrna Beach since they allow those municipalities to retain only the allegedly deficient Minimum Environmental Standards for Sea Turtle Protection. The second — and presently unchallenged — prong of the Turtles' theory of causation builds on their first, positing that even if Ordinance 90-22 applied county-wide, its restrictions are too lax to prevent takes. Mentioning only Daytona Beach and Daytona Beach Shores, Volusia County responds that it cannot be liable for takes in those locations because it "had no authority to regulate lighting within those municipalities" and "in no way authorized any activity by either of those municipalities that could have resulted in harm to the turtles."
We agree with the Turtles that they have shown a sufficient causal connection to seek to hold Volusia County liable for "harmfully" inadequate regulation of artificial beachfront lighting in the non-party municipalities of Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach. First, Volusia County possesses primary authority to regulate artificial beachfront lighting county-wide. The county charter expressly grants Volusia County the authority — and arguably a duty — to "establish minimum standards ... for the protection of the environment .... by ordinance" that "apply within all the incorporated and unincorporated areas of Volusia County." Volusia County, Fla., Home Rule Charter, Art. II, § 202.4. Volusia County did just that. It mandated a floor of, that is, minimum, lighting standards that Ormond Beach and New Smyrna Beach must implement and enforce. Similarly, based on an ordained finding (in both Ordinance 89-60, as amended, and Ordinance 90-22) that sea turtles do not nest or likely nest in Daytona Beach and Daytona Beach Shores, Volusia County decided that no lighting restrictions should apply to them.
Volusia County, Fla., Ordinance No. 95-18, § 3 (emphasis added). Therefore, the Turtles lack standing to seek to hold Volusia County responsible for inadequate enforcement efforts on the part of Ormond Beach and New Smyrna Beach.
This absence of enforcement control on Volusia County's part, however, does not defeat the Turtles' standing to sue for inadequate regulation, the Turtles' core theory of causation in those two municipalities. At trial, the district court can simply assume full and complete enforcement efforts on the part of Ormond Beach and New Smyrna Beach. This assumption will focus the trier of fact solely on the regulatory acts of Volusia County in determining whether the Minimum Environmental Standards for Sea Turtle Protection as contained within Ordinance 89-60, as amended, cause "harm" (e.g., insufficient on their face to prevent "harm") to sea turtles in Ormond Beach and New Smyrna Beach. See generally Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (the existence of standing "must be supported adequately by the evidence adduced at trial") (internal quotation marks and citations omitted). As a defense, of course, Volusia County may show that its Minimum Environmental Standards for Sea Turtle Protection as contained within Ordinance 89-60, as amended, if fully enforced, would prevent "harm" to the Turtles.
The trier of fact need not make any similar assumption with regard to Daytona Beach and Daytona Beach Shores. In exempting altogether those two municipalities from even the Minimum Environmental Standards for Sea Turtle Protection as contained within Ordinance 89-60, as amended, Volusia County obviously contemplated that they will not employ any enforcement measures. Furthermore, according to the complaint and the incidental take permit, nothing exists in those two municipalities to enforce. At trial, the trier of fact's inquiry can simply be whether the lack of artificial beachfront lighting restrictions in Daytona Beach and Daytona Beach Shores causes "harm" to sea turtles in those locations. As a defense, Volusia County may seek to prove the converse (e.g., protected sea turtles do not nest or shelter in those locations and/or unrestricted lighting does not "harm" them).
Because the district court dismissed the Turtles' claims of takes in Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach for lack of standing, we need not decide whether the Turtles have made a sufficient showing of causation for purposes of liability. Nonetheless, precedent from the Supreme Court and other circuits that address causation for purposes of liability support our holding. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the Supreme Court stated that the ESA's "harm" regulation "encompasses indirect as well as direct injuries[.]" 115 S.Ct. at 2413 (emphasis added). Thus, under Sweet Home, Volusia County need not operate every beachfront lighting source itself
At least two circuits, the First and the Eighth, have held that the regulatory acts of governmental entities can cause takes of protected wildlife. See Strahan v. Coxe, 127 F.3d 155, 158, 163 (1st Cir.1997) (state agency caused takings of the endangered right whale because it "licensed commercial fishing operations to use gillnets and lobster pots in specifically the manner that is likely to result in violation of [the ESA]"), petition for cert. filed, 66 U.S.L.W. 3605 (Mar. 6, 1998) (No. 97-1485); Defenders of Wildlife v. Administrator, Envtl. Protection Agency, 882 F.2d 1294, 1300-01 (8th Cir.1989) (federal agency caused takes of the endangered black-footed ferret through its "decision to register pesticides" even though other persons actually distributed or used the pesticides). In Defenders of Wildlife, federal law prohibited farmers from using strychnine, a pesticide, unless the Environmental Protection Agency (EPA) registered it. 882 F.2d at 1296. Although intended to kill non-endangered rodents such as prairie dogs, strychnine was also killing endangered black-footed ferrets. 882 F.2d at 1297. Environmental groups sued the EPA, alleging that its "continued registration of strychnine resulted in poisonings of protected species under the ESA[.]" 882 F.2d at 1298. The Eighth Circuit affirmed the district court's finding that the EPA violated the "take" prohibition, the only ESA violation in dispute. 882 F.2d at 1300, 1303. The court held that "the continued registration of a pesticide, as distinguished from the distribution or use of that pesticide, can constitute an illegal taking under the ESA." 882 F.2d at 1300. As to causation, the court found a "clear" relationship between the EPA's regulatory action — the registration of strychnine — and ferret deaths. 882 F.2d at 1301.
This case, like Defenders of Wildlife, involves a regulatory entity that exerts control over the use of something that allegedly takes protected wildlife. In both cases, the regulatory entity purports to make lawful an activity that allegedly violates the ESA. In Defenders of Wildlife, the EPA registered strychnine, allowing farmers to use it. In this case, Volusia County ordained beachfront lighting, allowing landowners to use lights all day and all night (that is, in Daytona Beach and Daytona Beach Shores) or use lights only during daylight hours and turn them off at sunset (that is, in unincorporated areas and the Town of Ponce Inlet) or 8:30 p.m. (that is, in Ormond Beach and New Smyrna Beach).
Even more persuasive than the Eighth Circuit's opinion in Defenders of Wildlife is the First Circuit's opinion in Strahan v. Coxe, 127 F.3d 155 (1st Cir.1997). In Strahan, Massachusetts law prohibited fishing companies from using gillnet and lobster pot fishing equipment without a license. A state agency "vested with broad authority to regulate fishing" issued the licenses and, through regulation, restricted the use of the fishing equipment only in certain areas. 127 F.3d at 159. According to reports from the National Marine Fisheries Service, "entanglement with fishing gear is one of the leading causes of the depletion of the [endangered] Northern Right whale population[.]" 127 F.3d at 159.
A conservationist sued the state agency under the ESA, alleging that its continued licensing of fishing equipment caused "harm" to the right whale. See 127 F.3d at 158. The district court granted preliminary injunctive relief. First, as a threshold matter, the district court concluded that the conservationist had standing to sue the state agency even though "[i]ndisputably, the actions of third parties not before the court — commercial fishing ... operations — are the immediate cause of the harm to endangered whales[.]" Strahan v. Coxe, 939 F.Supp. 963, 978 (D.Mass.1996), aff'd in part, vacated in part on other grounds, 127 F.3d 155 (1st Cir.1997). The district court found a sufficient causal connection between the alleged "harm" to whales and the agency's licensing of fishing equipment, pointing to the fact that "[f]ishing vessels cannot, legally, place gillnets and lobster gear in Massachusetts waters without permission from [the agency]." 939 F.Supp. at 978. Reaching the merits of the ESA taking claim, the district court found that the agency's "commercial fishing regulatory scheme likely exacted a taking in violation of the ESA." 127 F.3d at 163 (emphasis added). Concerning causation as one of the essential elements of the "take" prohibition, the district court found it "irrelevant that [the agency's] permitting of commercial fishing gear is only an indirect cause of whale entanglement[.]" 939 F.Supp. at 985.
Like the state agency in Strahan, Volusia County is alleged to be a "governmental third party pursuant to whose authority an actor directly exacts a taking of an endangered species[.]" Strahan, 127 F.3d at 163. Just as the Strahan agency was "vested with broad authority to regulate fishing" under state law, Volusia County is "vested with broad authority to regulate" artificial beachfront lighting under its charter and ordinances. 127 F.3d at 159. Volusia County would have us hold that Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach are "intervening independent actor[s]" in the regulation of artificial beachfront lighting. 127 F.3d at 164. It is true that, as we concluded earlier, Ormond Beach and New Smyrna Beach independently enforce their county-approved lighting ordinances. In all other respects, however, no "intervening independent actor" exists concerning lighting standards and enforcement in Volusia County. As Volusia County concedes, it possesses sufficient regulatory and enforcement control over artificial beachfront lighting in all unincorporated areas and the Town of Ponce Inlet. But for Volusia County's regulatory determination that Daytona Beach and Daytona Beach Shores fall outside the sea turtle nesting areas, light users in those locations would be subject to at least the Minimum Environmental Standards for Sea Turtle Protection as contained within Ordinance 89-60, as amended. Just as it was impossible in Strahan "for a licensed commercial fishing operation to use its gillnets or lobster pots in a manner permitted by the [agency] without risk of violating the ESA[,]" a genuine issue of fact exists in this case that the lighting activities of landowners along Volusia County's beaches — as authorized through local ordinance — violate the ESA. 127 F.3d at 164. Accordingly, at the very least, the Turtles, analogous to the conservationist in Strahan, have standing to proceed against Volusia County for lighting-related "harm" in Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach — even though the actions or inactions of those "third parties not before the court" may be another "cause of the harm[.]" 939 F.Supp. at 978.
The "redressability" prong of the standing doctrine asks whether it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks and citations omitted). The Turtles' complaint prays for the district court to: (1) declare that Volusia County's "refusal to eliminate those artificial beachfront light sources that ... misorient sea turtles from May 1st through October 31st annually constitutes an unlawful `taking' of the loggerhead and green [sea] turtle"; and (2) enjoin permanently Volusia County "from permitting those artificial light sources
Although "redressability — like the other prongs of the standing inquiry — does not depend on the defendant's status as a governmental entity[,]" unique constitutional implications exist whenever a federal district court is asked to order a state entity to take regulatory action. Steel Co. v. Citizens for a Better Env't, ___ U.S. ___, 118 S.Ct. 1003, 1017 n. 5, 140 L.Ed.2d 210 (1998). Volusia County argues that granting the requested relief, that is, enjoining it from permitting "harmful" lighting, would be tantamount to ordering it to legislate in violation of the separation of powers.
Assuming, without deciding, that ordering Volusia County to implement and enforce county-wide a "turtle-friendlier" ordinance would violate the separation of powers, we find that alternative effective relief exists. The injunctive relief awarded in Defenders of Wildlife and Strahan is instructive. In Defenders of Wildlife, the district court "basically enjoined the EPA from continuing its registration of strychnine until the EPA could do so without illegally taking protected species of wildlife." 882 F.2d at 1298; see also National Wildlife Fed'n v. Hodel, No. S-85-0837 EJG, 23 Env't Rep. Cas. (BNA) 1089 (E.D.Cal. Aug. 26, 1985) (ordering the Secretary of the Interior and the Director of the Service to ban lead-shot bird hunting in portions of California, Illinois, Missouri, Oklahoma and Oregon based on a finding that their continued authorization caused takes of threatened bald eagles that ate lead-infested prey). In Strahan, the district court ordered the state agency to: (1) apply for an incidental take permit; (2) submit to the court a proposal "to restrict, modify or eliminate the use of fixed-fishing gear" in the endangered right whale's habitat; and (3) convene a committee that includes the plaintiff and other interested parties "to engage in substantive discussions ... regarding modifications of fixed-fishing gear and other measures to minimize actual harm to the Northern Right whales[.]" 127 F.3d at 158, 939 F.Supp. at 992.
Like the district courts in Defenders of Wildlife and Strahan, the district court in this case has available a wide range of effective injunctive relief. Neither the appellate court in Defenders of Wildlife nor the appellate court in Strahan found any of that relief unconstitutional. Nor does that relief serve as an exhaustive list. For example, in this case, the district court could strike Volusia County's ordained exemption of Daytona Beach and Daytona Beach Shores from the Minimum Environmental Standards for Sea Turtle Protection as contained within Ordinance 89-60, as amended. Cf. Hershey v. City of Clearwater, 834 F.2d 937, 939 (11th Cir.1987) ("The law permits us to strike the words `or sleep,' if unconstitutional, from the ordinance."). Similarly, the district court could declare that those minimum standards, even if fully enforced, fail to prevent "harm" to protected sea turtles in Ormond Beach and New Smyrna Beach and — like the district court in Strahan — order Volusia County to form a committee and propose a solution. See Franklin v. Massachusetts, 505 U.S. 788, 803, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (concluding that Massachusett's alleged
Where, as here, a responsive pleading to the original complaint has been filed, "a party may amend the party's pleading only by leave of court ... and leave shall be freely given when justice so requires." Fed. R.Civ.P. 15(a) (emphasis added). Similarly, "[p]arties may be ... added by order of the court on motion of any party ... at any stage of the action and on such terms as are just." Fed.R.Civ.P. 21. (emphasis added). Technically, the Turtles sought leave to add a party, the leatherback sea turtle. See, e.g., American Bald Eagle v. Bhatti, 9 F.3d 163, 164 (1st Cir.1993) (stating that the threatened bald eagle "brought this action to enjoin [a] ... deer hunt"); Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106, 1107 (9th Cir.1988) (stating that the endangered palila "has legal status and wings its way into federal court as a plaintiff in its own right").
Forman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
We conclude that the district court's "apparent or declared reason" for denying leave to the Turtles failed to serve the interest of justice. First, the district court erroneously concluded that the Turtles failed to invoke subject matter jurisdiction. The factual premise to the conclusion — that a copy of their notice of intent to sue letter was not "on file with the Court" — was false. The record contains at least two copies of the letter.
Volusia County argues that, even if the district court had found the letter in the record, it insufficiently provided "notice of the violation" to the Secretary of the Interior and Volusia County. 16 U.S.C. § 1540(g)(2)(A)(i). We disagree. In its first paragraph, the letter expresses the need for "immediate action ... to eliminate ... artificial beachfront lighting sources that take protected sea turtles during turtle nesting season (May 1st through October 31st)[.]" (Emphasis added.) In the next paragraph, the letter explicitly references the leatherback sea turtle as one of three species of sea turtles that nest on Volusia County beaches. Contrary to Volusia County's interpretation, the letter's "violations" section is not facially inconsistent with the letter's general prayer in the first paragraph. That section avers that, as of March 23, 1995, the individual appellants possessed evidence of "at least 33 independent violations of the ESA" that involve
The second basis of the district court's order, the Turtles' undue delay, is equally flawed. One of the two exhibits attached to the Turtles' motion for leave to amend is dated "June 1995." The Turtles filed their original complaint and motion for preliminary injunction on June 8, 1995. We have no reason to doubt the Turtles' lawyer's representation that they did not obtain this publication until after the filing of their original complaint. Thus, this is not a case where the facts supporting the proposed amendment "were known at the time of the original [pleading]." National Serv. Indus. v. Vafla Corp., 694 F.2d 246, 249 (11th Cir.1982); cf. Palila, 852 F.2d at 1107 (noting the six-year gap between the original complaint and the amended complaint to add allegations of a new source of "harm" that "had not been the target of the original complaint because research ... had not been completed"). Nonetheless, Volusia County insists that the Turtles must have known of the existence of leatherback sea turtles in March 1995, the date of their intent to sue letter. The district court, however, relied on no such factor. Additionally, the Turtles' failure to plead in their original complaint the existence of the leatherback sea turtle on Volusia County's beaches reconciles with their obligations under the federal rules and general notions of fair dealing. Allegations in a complaint must have "evidentiary support" to the best of the party's "knowledge, information, and belief, formed after an inquiry reasonable under the circumstances." Fed.R.Civ.P. 11(b)(3) (filing a pleading warrants, among other things, that its "allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery"); Business Guides, Inc. v. Chromatic Communications Enterprises, 498 U.S. 533, 541, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991) ("A party who signs a pleading or other paper without first conducting a reasonable inquiry shall be sanctioned."). Assuming the author acts in good faith, an investigation preceding an intent to sue letter need not be as thorough as that leading up to the complaint. See Fed. R.Civ.P. 11(b) ("evidentiary support" and "reasonable inquiry" requirements apply only to papers "present[ed] to the court"); Chambers v. NASCO, Inc., 501 U.S. 32, 40, 46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (affirming the sanctioning of pre-litigation conduct — commencing from "the time that plaintiff gave notice of its intention to file suit" — based on the court's "inherent power to impose sanctions for ... bad-faith conduct") (emphasis added).
We recognize that in late July 1995 the Turtles submitted, in support of their motion for preliminary injunction, the very same exhibit that it relied upon as factual support for their proposed amended complaint. It is undisputed, however, that the Turtles, in contrast to the plaintiff in Sosa, filed their motion for leave to amend within the time period prescribed in the district court's scheduling order. See 133 F.3d at 1419. At most, their failure to request leave to file an amended complaint in late July instead of
The district court's final basis for denying leave, prejudice to Volusia County, constituted anything but "a substantial reason.. to deny leave to amend[.]" Florida Power & Light Co. v. Allis Chalmers Corp., 85 F.3d 1514, 1520 (11th Cir.1996) (internal quotation marks and citations omitted). The district court reasoned that "[t]he impact of adding the leatherback [sea] turtle as a party, with its earlier breeding season, would be to foreclose the County's opportunity to litigate whether takes of sea turtles occurred during the period from February to April, since the Court would be asked to preliminarily enjoin the County from allowing driving on the beach from February to October."
The only purported prejudice we are left with is Volusia County's fear of incurring "additional expense and possible delay." Any amendment to an original pleading necessarily involves some additional expense to the opposing party. In this case, it is of nominal proportions. In accordance with the district court's scheduling order, discovery proceeded on the assumption that the leatherback sea turtle would be added as a party. Cf. Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 761 (11th Cir.1995) (affirming the denial of plaintiff's motion for leave to amend "which was filed more than eight months after the pretrial order was entered and almost ten months after [a discovery] deposition"). As to possible delay, Volusia County could not plausibly convince us that it genuinely wanted to go to trial as quickly as possible. On the contrary, it employed extraordinary efforts to obtain continuance orders. Volusia County representatives even met personally with the Secretary of the Interior to ensure the imminence of the Service's incidental take permit decision.
We are mindful that "[t]he decision whether to grant leave to amend is within the sound discretion of the trial court." Jameson v. Arrow Co., 75 F.3d 1528, 1534 (11th. Cir.1996) (affirming the denial of leave to amend to a plaintiff who requested it "ten months after she retained counsel, discovery was closed, the complaint had been amended twice, and [the defendant] had filed two motions for summary judgment"). Reversal is inherently rare. Based on the circumstances of this case, however, we hold that the district court's denial of leave to amend the original complaint fell outside the permissible range of discretion. Accordingly, the interest of "justice so requires" that the leatherback sea turtle be included in further proceedings on remand. Fed.R.Civ.P. 15(a).
For the foregoing reasons, the Turtles have convinced us to reverse the judgment of the district court. In summary, we first hold that Volusia County's incidental take permit does not authorize it to take protected sea turtles through purely mitigatory measures associated with artificial beachfront lighting.
Second, we hold that the Turtles have standing to sue Volusia County under the ESA's "take" prohibition for its regulatory actions affecting light users in Ormond Beach and New Smyrna Beach (that is, the imposition of the Minimum Environmental Standards for Sea Turtle Protection as contained within Ordinance 89-60, as amended), but not those municipalities' independent enforcement efforts. We likewise hold that the Turtles have standing to sue Volusia County for its regulatory actions affecting light users in Daytona Beach and Daytona Beach Shores (that is, the exemption from the Minimum Environmental Standards for Sea Turtle Protection as contained within Ordinance 89-60, as amended). Furthermore, we hold that the district court possesses the power to fashion a remedy that both constitutionally redresses the alleged "harm" and respects the scope of Volusia County's regulatory authority within those four municipalities.
Finally, we hold that the district court abused its discretion in denying the Turtles' motion for leave to amend its original complaint and add the endangered leatherback sea turtle as a party. In light of the foregoing holdings, we remand this case for further proceedings consistent with this opinion, including a trial on artificial beachfront lighting (absent the timely intervening issuance of an incidental take permit).
REVERSED and REMANDED.
RONEY, Senior Circuit Judge, dissenting:
I respectfully dissent, largely on the reasoning of the district court Order deciding that the issuance by the Department of the Interior's U.S. Fish and Wildlife Service of an Incidental Take Permit renders this case moot. I understand the technical points and reasoning that argue for a contrary conclusion, but sometimes it is important to step back and view the fabric as a whole, especially when considering important conservation issues Congress committed to the expertise of an administrative agency.
The issues concerning the endangered turtles, of course, are not moot. The very fact they are covered by the Act reflects that serious measures must be taken in order to preserve the species. It is important that there be efficient and effective measures to protect all endangered turtles, but Congress has wisely assigned to the Department of the Interior extensive responsibilities under the Endangered Species Act. See Babbitt v. Sweet Home Chapter, Communities for Great Oregon, 515 U.S. 687, 708, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) ("When it enacted the ESA, Congress delegated broad administrative and interpretive power to the Secretary."). Along with these responsibilities comes the power to permit incidental "takes" as long as those takes do not threaten the continued existence of the species. See 16 U.S.C. § 1539(a) (1994). "The permit process requires the applicant to prepare a `conservation plan' that specifies how he intends to `minimize and mitigate' the `impact' of his activity on endangered and threatened species, 16 U.S.C. § 1539(a)(2)(A)." Sweet Home, 515 U.S. at 700, 115 S.Ct. 2407. It does not make sense to litigate in federal court the issue of incidental takes caused by artificial lights when those lights are regulated by the conservation plan provisions of a valid Incidental Take Permit. Compare National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 1044-45 (D.C.Cir.1977), cert. denied, ___ U.S. ___, 118 S.Ct. 2340, 141 L.Ed.2d 712 (1998) (when incidental take permit holder proposes to violate conservation plan, new take permit may be required).
As I understand it, there are two kinds of takings involved here. Baby turtles born at night crawl to the light, nature having made that light the reflection of the moon on the water. Artificial shoreline lighting and vehicular lighting disorients these turtles and instead of crawling to the water, they crawl away from the water. One kind of taking as a result is undisputed: the killing of the turtles by motor vehicles driving on the beach during this period. The plaintiffs concede
Whether there is any taking due to shoreline artificial lights other than by vehicles is in dispute. The U.S. Fish and Wildlife Service has implemented an Artificial Beachfront Lighting Management Plan, however, which is designed to modify to the extent practical the lighting that disorients turtles during the critical nesting periods. This plan requires a detailed survey of artificial beachfront lights and contemplates more restrictive lighting regulations in the near future, all under the direct supervision of the U.S. Fish and Wildlife Service.
The Endangered Species Act authorizes the Department of the Interior to permit incidental "takes." The language focuses on the incidental takes themselves, rather than the activity that actually causes the takes. 16 U.S.C. § 1539(a)(1)(B). I would agree with the Ninth Circuit's reasoning that where incidental takes are "clearly contemplated by the incidental take statement," they are excepted from liability under the Endangered Species Act. Ramsey v. Kantor, 96 F.3d 434, 442 (9th Cir.1996). See also Hamilton v. City of Austin, 8 F.Supp.2d 886 (W.D.Tex. 1998) (incidental take permit not required where valid scientific permit to take endangered salamander had been granted by U.S. Fish and Wildlife Service).
The Permit includes not only the two plaintiff turtle species, but the leatherback turtle, which plaintiffs sought to include as a party plaintiff, and two other species of turtles as well. It requires Volusia County to work with experts from the U.S. Fish and Wildlife Service, the Florida Department of Environmental Protection, the local lighting company, and even the municipalities of Daytona Beach and Daytona Beach Shores.
The conservation plan approved by the U.S. Fish and Wildlife Service requires Volusia County within one year to conduct an extensive survey of all artificial lights along its beachfronts and document any problems that might be caused by those lights. It requires Volusia County over the following two years to correct any of those problems. Only then, if it proves impractical or cost prohibitive to correct any remaining problems, might the issuance of an Incidental Take Permit be necessary.
Common sense would dictate that the Agency would not implement such a plan if it did not permit such incidental taking as might occur during the management plan, if any, in addition to the taking through vehicular activity. If the agency does not properly protect the interests here involved under the statute, the parties have a remedy through the Administrative Procedures Act. In my judgment, it is a serious mistake, a waste of government resources, and an unjust expense to the parties to try to run parallel litigation of these issues in the district court while the problem is under the management of the federal agency.
Even if this case were not moot, I would invoke the primary jurisdiction doctrine and stay the case pending further administrative proceedings before the U.S. Fish and Wildlife Service. The primary jurisdiction doctrine is a flexible tool that is designed to allocate efficiently fact finding between the federal courts and administrative agencies. See United States v. Western Pac. R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). The doctrine is "applicable to claims properly cognizable in court that contain some issue within the special competence of an administrative agency. It requires the court to enable a `referral' to the agency.... Referral of the issue to the administrative agency does not deprive the court of jurisdiction; it has discretion either to retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice." Reiter v. Cooper, 507 U.S. 258, 268-69, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993).
This case involves a question of fact-whether artificial beachfront lighting "takes" sea turtles-that is not only within the special competence of the U.S. Fish and Wildlife Service, but is actually being reviewed by that agency. The Incidental Take Permit requires Volusia County to provide the U.S. Fish and Wildlife Service with information regarding lights which potentially disorient turtles and, if necessary, develop an appropriate
In any event, there seems to be no question that the district court case is moot if the Incidental Take Permit includes, in addition to takings by motor vehicles, such other takings, if any, caused by artificial lights. If that issue is indeed in doubt, this Court could simply require a stay of the district court proceedings while the defendant repairs to the Agency to get a clarification on that point.
We have omitted any discussion of the beach community of Silver Sands because the parties do not specifically mention it in their briefs or the record. It may be that Silver Sands is another unincorporated area like Wilbur-by-the-Sea, Ormond-by-the-Sea and Bethune Beach, since that list does not appear to be an exhaustive one. The parties can resolve this minor detail on remand.
The Turtles subsequently moved the district court to reconsider its denial of preliminary injunctive relief as to artificial beachfront lighting, but the court denied the motion.
Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1159, 137 L.Ed.2d 281 (1997) (citations omitted and emphasis added).
We also summarily reject Volusia County's argument that its mitigatory measures render moot any remedy that the Turtles could possibly seek, short of a total blackout on the beach. The effectiveness of these mitigatory measures — that the Turtles dispute with record evidence — is an issue that can be resolved only at trial.
Finally, Volusia County erroneously contends that the Turtles' appeal is an attempt to circumvent the Administrative Procedure Act, 5 U.S.C. § 551, et seq. Unlike the environmental group in Friends, the Turtles do not challenge the Service's issuance of the incidental take permit. See 760 F.2d at 981, 982. The Turtles assume the validity of the Service's permit decision in contending that Volusia County lacks the Service's permission to take sea turtles through artificial beachfront lighting. See generally United States v. St. Onge, 676 F.Supp. 1044, 1045 (D.Mont. 1988) ("[T]he court intends to instruct the jury that the government must prove three elements beyond a reasonable doubt in order for the defendant to be convicted: first, that the defendant knowingly took an animal within the United States; second, that the animal was a grizzly bear; and third, that the defendant did not have permission from the United States Department of the Interior to take the bear.") (emphasis added).