## Facts

- Volusia County, Florida manages portions of approximately forty miles of Atlantic coastline containing heavily developed beach communities.
- Federally listed sea turtles nest on these beaches; hatchlings emerge at night and tend to crawl toward the brightest horizon, which on developed beaches can be artificial inland lighting rather than the ocean.
- Plaintiffs (two sea turtle species and two local beach users) alleged that the County’s beach-related policies and practices—particularly artificial beachfront lighting and vehicular beach access—caused unlawful “takes” of listed sea turtles under the Endangered Species Act (ESA).
- After the suit was filed, the County sought and obtained an ESA incidental take permit (ITP) from the U.S. Fish and Wildlife Service authorizing specified incidental takes associated with lawful beach activities, subject to mitigation conditions that included lighting-related measures.
- The district court dismissed the action, reasoning that the ITP insulated the County from ESA liability for covered matters and that plaintiffs lacked standing where municipalities had overlapping authority over lighting or enforcement; it also denied plaintiffs leave to amend to add another federally protected sea turtle as a plaintiff.

## Issues

1. Whether an ESA ITP exception to the “take” prohibition extends to activities that are purely mitigatory measures required as permit conditions, rather than the “otherwise lawful activity” for which the permit was issued.
2. Whether plaintiffs had Article III standing where the County set minimum wildlife-protection standards but nonparty municipalities possessed supplemental regulatory authority and/or exclusive enforcement control in some locations.
3. Whether the district court abused its discretion by denying leave to amend to add another federally protected sea turtle species as a plaintiff.

## Decision

- The Eleventh Circuit reversed the dismissal on all issues and remanded.
- The court held that the ITP did not categorically bar ESA citizen-suit claims challenging the County’s lighting-related conduct where the challenged conduct functioned as mitigation rather than the otherwise lawful activity authorized by the permit.
- The court held plaintiffs adequately alleged injury, causation, and redressability; overlapping municipal authority did not defeat standing.
- The court held the district court abused its discretion by denying amendment to add another federally protected sea turtle species.

## Legal Principles

- An ESA incidental take permit excuses only takes that are incidental to an “otherwise lawful activity” identified in the permit; it does not automatically immunize all conduct connected to a permitted project, including mitigation measures required by the permit.
- ESA citizen-suit claims may proceed to evaluate whether permit-related mitigation measures (and compliance with them) satisfy ESA obligations; a permit’s existence is not a blanket defense to all asserted “take” theories.
- For Article III standing in environmental cases, a defendant need not be the sole regulator or sole cause of harm; standing can exist where the defendant’s minimum standards meaningfully contribute to the risk of harm and requested relief is reasonably likely to reduce injury.
- Leave to amend should be granted when adding a similarly situated listed species would not cause undue prejudice or fundamentally alter the litigation, particularly in ESA citizen-suit enforcement.

## Conclusion

The Eleventh Circuit reinstated the ESA citizen suit, holding that an incidental take permit did not foreclose challenges to mitigation-related lighting practices, that plaintiffs had standing despite overlapping municipal authority, and that the district court should have allowed amendment to add another federally protected sea turtle species.


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