Florida Panthers et al v. Collier County, Florida et al

Filing 104

OPINION AND ORDER granting 94 plaintiffs' Third Request for Judicial Notice to the extent set forth in the Opinion and Order; granting in part and denying in part 85 defendants' Motion to Dismiss; denying 87 plaintiffs' Motio n for Summary Judgment; granting 90 defendants' Motion for Summary Judgment. The Clerk shall enter judgment as set forth in the Opinion and Order, terminate all pending motions and deadlines as moot, and close the file. See Opinion and Order for details. Signed by Judge John E. Steele on 4/8/2016. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FLORIDA
PANTHERS,
(Puma
concolor
coryi)
an
endangered
species,
REDCOCKADED
WOODPECKERS,
(Picoides
boralis)
an
endangered species, FLORIDA
WILDLIFE FEDERATION, a notfor-profit
Florida
corporation,
and
COLLIER
COUNTY
AUDUBON
SOCIETY,
INC.,
a
not-for-profit
Florida corporation,
Plaintiffs,
v.

Case No: 2:13-cv-612-FtM-29DNF

COLLIER COUNTY, FLORIDA, a
political subdivision of the
State of Florida, GEORGIA A.
HILLER,
in
her
official
capacity as a Collier County
Commissioner, TOM HENNING,
in his official capacity as
a
Collier
County
Commissioner, FRED W. COYLE,
in his official capacity as
a
Collier
County
Commissioner, and TIM NANCE,
in his official capacity as
Collier County Commissioner,
Defendants.

OPINION AND ORDER
This matter is before the Court on the Third Amended Complaint
(Doc.

#81)

filed

by

the

Florida

panthers,

the

red-cockaded

woodpeckers (RCWs), the Florida Wildlife Federation (FWF), and the

Collier

County

Audubon

Society,

Inc.

(CCAS)

(collectively,

plaintiffs) against Collier County, Florida and Collier County
Commissioners Georgia A. Hiller, Tom Henning, Penny Taylor, and
Tim Nance in their official capacities (collectively, defendants,
County, or Collier County) for violations of the Endangered Species
Act of 1973 (ESA), 16 U.S.C. §§ 1531-44.

(Doc. #81.)

first

written

assert

that

Collier

County’s

Plaintiffs

policies

and

regulations relating to the clearing of agricultural land, the
issuance of building permits for single family residences in the
North Belle Meade (NBM) and Northern Golden Gate Estates (NGGE)
portions of the county, and the planned future extension of Wilson
Boulevard are pre-empted by § 6(f) of the ESA because they are
less stringent than the prohibitions in the ESA (Counts I-III).
Plaintiffs then assert that the same policies and regulations and
the planned future extension of Wilson Boulevard constitute a
“take” in violation of § 9 of the ESA (Counts IV-VI).

Plaintiffs

seek declaratory and injunctive relief prohibiting defendants from
continuing to implement, enact, or authorize these activities
without

first

issuing

a

Habitat

Conservation

Plan

(HCP)

and

obtaining an Incidental Take Permit (ITP). (Doc. #81, ¶¶ 1-2.)
The matter is now before the Court on defendants’ Motion to
Dismiss (Doc. #85), to which plaintiffs have filed a Response (Doc.
#86).

The parties also filed cross motions for summary judgment

(Docs. ##87, 90), to which Responses (Docs. ##89, 93) were filed.

2

Also before the Court is plaintiffs’ Third Request for Judicial
Notice of Adjudicative Facts (Doc. #94), to which defendants’ filed
a Response (Doc. # 95).
4,

2016.

The

Court

The Court heard oral arguments on March
first

provides

some

legal

and

factual

background, then addresses the motions.
I.
A.

The Endangered Species Act of 1973
Congress enacted the Endangered Species Act (ESA) “to halt

and reverse the trend toward species extinction, whatever the
cost.”

Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978).

“In

accordance with this policy, the ESA provides for the listing of
species as threatened or endangered and the designation of their
critical habitat.”

Defs. of Wildlife v. U.S. Dep’t of the Navy,

733 F.3d 1106, 1111 (11th Cir. 2013) (citing 16 U.S.C. § 1533).
An “endangered species” is “any species which is in danger of
extinction throughout all or a significant portion of its range,”
except for certain types of pests.

16 U.S.C. § 1532(6).

A

“threatened species” is “any species which is likely to become an
endangered species within the foreseeable future throughout all or
a significant portion of its range.”

Id. § 1532(20).

habitat” means
(i) the specific areas within the geographical
area occupied by the species, at the time it
is listed [as an endangered or threatened
species] in accordance with the provisions of
section 1533 of this title, on which are found

3

“Critical

those physical or biological features (I)
essential to the conservation of the species
and (II) which may require special management
considerations or protection; and
(ii) specific areas outside the geographical
area occupied by the species at the time it is
listed [as an endangered or threatened
species] in accordance with the provisions of
section
1533
of
this
title,
upon
a
determination by the Secretary that such areas
are essential for the conservation of the
species.
Id. § 1532(5)(A).
One of the ways in which the ESA protects listed species and
their critical habitat is by prohibiting anyone from “taking” a
listed species.

Section 9 of the ESA makes it unlawful for any

person subject to the jurisdiction of the United States to “take”
any member of a listed endangered or threatened species within the
United States.

16 U.S.C. § 1538(a)(1)(B).

“Take” is defined

broadly, and means “to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any
such conduct.”

16 U.S.C. § 1532(19); see Babbitt v. Sweet Home

Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704 (1995)
(“Congress intended ‘take’ to apply broadly to cover indirect as
well as purposeful actions.”).

The term “harass” is further

defined by the regulations 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,

4

but

are

not

limited

to,

breeding,

feeding,

or

sheltering.”

50

C.F.R.

§

17.3.

The

regulations define “harm” as “an act which actually kills or
injures

wildlife.

Such

act

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;

see also Babbitt, 515 U.S. at 708; Miccosukee Tribe of Indians of
Fla.

v.

United

States,

716

F.3d

535,

542

(11th

Cir.

2013);

Loggerhead Turtle v. Cnty. Council of Volusia Cnty., 148 F.3d 1231,
1238 (11th Cir. 1998).
As an exception to the prohibition against a “take,” Congress
allows the Secretary of the Interior, acting through the United
States Fish and Wildlife Service (FWS), 1 to issue a permit “under
such terms and conditions as he shall prescribe” which allows an
otherwise prohibited taking “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).

As a prerequisite to

receiving an Incidental Take Permit (ITP), the applicant must
submit a Habitat Conservation Plan (HCP) “that specifies”:

1

The FWS administers the ESA with respect to species under
the jurisdiction of the Secretary of the Interior. See Nat'l Ass'n
of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 651 (2007);
16 U.S.C. §§ 1532(15) (defining “Secretary” to include the
Secretary of the Interior, the Secretary of Commerce, and the
Secretary of Agriculture), 1539(a)(1); 50 C.F.R. §§ 17.11,
222.101(a), 223.102, 402.01(b).

5

(i) the impact which will likely result from
such taking;
(ii) what steps the applicant will take to
minimize and mitigate such impacts, and the
funding that will be available to implement
such steps;
(iii) what alternative actions to such taking
the applicant considered and the reasons why
such alternatives are not being utilized; and
(iv) such other measures that the Secretary may
require as being necessary or appropriate for
purposes of the plan.
16 U.S.C. § 1539(2)(A)(i)-(iv).

The applicant must also include

a “complete description of the activity sought to be authorized”
and “[t]he common and scientific names of the species sought to be
covered by the permit, as well as the number, age, and sex of such
species, if known[.]”

50 C.F.R. § 17.22(b)(1)(i)-(ii) (endangered

wildlife);

50

C.F.R.

§

17.32(b)(1)(iii)(A)-(B)

(threatened

wildlife).

See Loggerhead Turtle, 148 F.3d at 1238-39.

Upon receiving a complete application package, the FWS must
publish notice in the Federal Register and provide the public an
opportunity to comment on whether it should issue the permit.
U.S.C. § 1539(a)(2)(B); 50 C.F.R. § 17.22.

16

Upon expiration of the

public comment period, the FWS must issue the permit if it finds
that:
(i) the taking will be incidental;
(ii) the applicant will, to the maximum extent
practicable, minimize and mitigate the impacts
of such taking;

6

(iii) the applicant will ensure that adequate
funding for the plan will be provided;
(iv) the taking will not appreciably reduce
the likelihood of the survival and recovery of
the species in the wild; . . .
(v) the measures, if any, required under [16
U.S.C. § 1539(a)(2)(A)(iv)] will be met; [and]
[the FWS] has received such other assurances
as [it] may require that the [habitat
conservation plan] will be implemented[.]
16 U.S.C. § 1539(a)(2)(B); 50 C.F.R. §§ 17.22(b)(2), 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, 17.32.

The applicant's

failure to comply “with the terms and conditions of the permit”
requires the FWS to revoke the permit.

16 U.S.C. § 1539(a)(2)(C).

See Loggerhead Turtle, 148 F.3d at 1239.
State law may be more restrictive than the ESA provisions,
but may not be less restrictive.

Section 6(f) of the ESA provides

in pertinent part:
Any State law or regulation respecting the
taking of an endangered species or threatened
species may be more restrictive than the
exemptions or permits provided for in this
chapter or in any regulation which implements
this chapter but not less restrictive than the
prohibitions so defined.
16 U.S.C. § 1535(f).
The

ESA

provisions.

provides

for

“citizen

suits”

to

enforce

its

With certain exceptions not applicable to this case,

7

any person may commence a civil suit on his
own behalf-- (A) to enjoin any person,
including the United States and any other
governmental instrumentality or agency (to the
extent permitted by the eleventh amendment to
the Constitution), who is alleged to be in
violation of any provision of this chapter or
regulation issued under the authority thereof;
. . . .
16 U.S.C. § 1540(g)(1)(A).
B.

Endangered Species at Issue
(1)

The Florida Panther

The

Florida

panther

has

endangered species since 1967.

been

listed

by

the

FWS

as

an

(Doc. #81, ¶¶ 18, 48); Conservancy

of Sw. Fla. v. U.S. Fish & Wildlife Serv., 677 F.3d 1073, 1076
(11th Cir. 2012).

The Florida Fish and Wildlife Conservation

Commission (FWCC) estimated in 2014 that the current population of
Florida panther adults is approximately 100-180 (Doc. #81, ¶ 21),
making the Florida panthers one of the most endangered species in
the United States.

(Id. ¶ 19.)

of the adult population to 240.

A 2008 report calls for expansion
(Id. ¶ 20.)

The current breeding

population of Florida panthers is located on approximately 2.27
million acres in Collier, Lee, Hendry, Miami-Dade, and Monroe
counties.

The North Belle Meade (NBM) and the North Golden Gate

Estates (NGGE) areas in Collier County have been designated as
primary zone Florida panther habitat, and the presence of collared
and uncollared Florida panthers has been well documented.
22-26.)

8

(Id. ¶¶

(2)

The Red-Cockaded Woodpecker

The red-cockaded woodpecker has been listed by the FWS as an
endangered species under the ESA since 1970.
50 C.F.R. § 17.11.

(See id. ¶¶ 27, 50);

Both the FWS and the FWCC have identified

colonies of red-cockaded woodpeckers in west and central NBM, and
the FWCC has identified the lands in NBM to be strategic habitat
for the red-cockaded woodpecker.

(Doc. #81, ¶ 28.)

The only

documented occurrence of red-cockaded woodpeckers on private land
in Collier County was in NBM.
The

primary

threats

(Id.)

to

the

red-cockaded

woodpecker

are

habitat loss, fragmentation by land clearing and roadways, habitat
degradation, and isolation.

(Id. ¶ 29.)

Highways fragment red-

cockaded woodpecker populations in three ways:

loss of large

carnivores, habitat dissection, and the isolation of red-cockaded
woodpeckers.

(Id.)

populations,

When

red-cockaded

highways

fragment

woodpeckers

can

large
suffer

carnivore
increased

depredation from smaller carnivores such as bobcats, skunks, and
weasels.

(Id.)

Habitat dissection and isolation often result in

patches of habitat too small to function as red-cockaded woodpecker
territory.
The

(Id.)
FWS

developed

a

woodpeckers, which requires:

recovery

plan

for

red-cockaded

(1) the location and preservation of

viable pine forested habitats; (2) restoration of degraded pine
forests; and (3) maintaining or creating pine forested wildlife

9

corridors which link or have the opportunity to link potential
breeding groups of red-cockaded woodpeckers.

(Id. ¶ 30.)

Acres

of foraging habitat and tree habitat have been cleared in the
relatively recent past. (Id. ¶¶ 32-34.)
C.

The Collier County Comprehensive Land Use Plan
In Florida, the legislative and governing body of a county

has the power to carry on county government, including, to the
extent not inconsistent with general or special state law, the
power

to

“[p]repare

and

enforce

development of the county.”
Local

Government

comprehensive

plans

Fla. Stat. § 125.01(g).

Comprehensive

Planning

and

Land

for

the

The Florida
Development

Regulation Act, Chapter 163, Part II, requires a county to adopt
a comprehensive land use plan to guide and control the use and
future development of property within the county.

Fla. Stat. §

163.3167(2); Citrus County v. Halls River Dev., Inc., 8 So. 3d
413,

415

(Fla.

5th

DCA

2009).

“The

plan

is

likened

to

a

constitution for all future development within the governmental
boundary.”

Machado v. Musgrove, 519 So. 2d 629, 632 (Fla. 3d DCA

1987) (citations omitted).
Once a comprehensive plan has been adopted, “all development
undertaken by, and all actions taken in regard to development
orders by, governmental agencies in regard to land covered by such
plan”

must

be

163.3194(1)(a).

consistent

with

that

plan.

Fla.

Stat.

§

Each comprehensive plan must be reviewed every

10

seven years in an Evaluation and Appraisal Report (“EAR”), which
is

intended

to

assess

comprehensive plan.

the

progress

made

Fla. Stat. § 163.3191.

in

implementing

the

A comprehensive plan

may be amended through this process if the amendment is approved
by the Florida Department of Community Affairs (FDCA).
Development

Code

comprehensive

(LDC)

plan.

is
If

the
there

document
is

a

that

The Land

implements

conflict

between

the
the

comprehensive plan and the LDC, the comprehensive plan prevails.
Fla. Stat. § 163.3194(1)(b); Halls River Dev., Inc., 8 So. 3d at
415.
In 1989, Collier County enacted its first comprehensive land
use plan (Doc. #81, ¶ 79), and in 1991, Collier County enacted its
Land Development Code.

On November 14, 1997, pursuant to the

County’s 1996 EAR, Collier County amended the Collier Plan.

(Id.)

On December 24, 1997, FDCA issued a Notice of Intent to find
Collier County’s EAR-based amendments not “in compliance,” as
defined by Fla. Stat. § 163.3184(1)(b).

(Id.)

After a five day

evidentiary hearing, the Administrative Law Judge (ALJ) issued a
Recommended

Order

finding

that

Collier

County’s

EAR-based

amendments were not in compliance with Chapter 163, Part II,
Florida Statutes.

(Id.)

The Recommended Order was approved by

the Florida Administration Commission on June 22, 1999, and a Final
Order was entered directing Collier County to take steps to bring
the Collier Plan into compliance with Chapter 163.

11

(Id. ¶ 82.)

These steps included initiating a three year assessment of the
area of Collier County designated on the Future Land Use Map as
Agricultural/Rural and adoption of a plan no later than June 22,
2002 to implement the findings and results of the three year
assessment.

(Id.)

Collier County was also required to direct

incompatible land uses away from wetlands and upland habitats of
listed species by means of creative planning techniques.
As

directed,

Collier

County

conducted

the

(Id.)

three

year

assessment and elected to divide the Agricultural/Rural designated
areas into two sub districts-the Rural Fringe and the Eastern
Lands.

(Id. ¶ 83.)

The Eastern Lands, consisting of 196,000 acres

surrounding Immokalee, was designated the Rural Lands Stewardship
Area.

(Id.)

The Rural Fringe, consisting of 93,000 acres,

including the 15,552 acre NBM area, was designated the Rural Fringe
Mixed Use District.
In

July,

(Id.)

2002,

Collier

County

enacted

Collier

Ordinance No. 02-32, which amended the Collier Plan.
The

amendments

included

Conservation

and

Coastal

County

(Id. ¶ 85.)
Management

Element (CCME) Objective 7.1, which mandated that the County
“direct incompatible land uses away from listed animal species and
their habitats.”

(Id. ¶ 85.)

Pursuant to this Objective, Collier

Plan CCME Policy 7.1.1 provided that incompatible land uses are
directed away from listed species and their habitats by virtue of
five different types of land use designations in the Future Land

12

Use Element (FLUE) of the Collier Plan:

(1) the “Conservation”

land use category; (2) the “Big Cypress Area of Critical State
Concern Overlay” land use category; (3) the “Natural Resource
Protection Areas” (NRPA) land use category; (4) the “Sending Lands”
land use category, which had the right of transfer of development
rights to “Receiving Lands”; and (5) the “Habitat Stewardship
Areas” land use category, applicable to the Rural Lands Stewardship
Area Overlay of the Collier Plan.

(Id. ¶¶ 86, 87.)

Receiving

Lands are identified as “the most appropriate for development,”
and Sending Lands are deemed to have “the highest degree of
environmental value and sensitivity” and are the principal target
for preservation and conservation.

(Id. at ¶ 88); Hussey v.

Collier County, 158 So. 3d 661, 663 (Fla. 2d DCA 2014).
The Collier Plan currently designates approximately 10,673
acres of NBM as “Sending Lands,” of which 6,075 acres are further
designated as “NRPA Sending Lands.”
10,673

acres

of

NBM

“Sending

(Doc. #81, ¶ 89.)

Lands”

have

been

All of the

identified

as

occupied Florida panther habitat (id. ¶ 90), while approximately
3,547 acres of the NBM “Sending Lands” have been identified as RCW
foraging habitat and 3,210 acres as RCW cavity tree habitat (id.
¶ 91).

Residential use of “Sending Lands” under the Collier Plan

is limited to one dwelling unit per parcel which existed as of
June 22, 1999, or one dwelling unit per 40 acres.

13

Non-residential

uses other than agriculture are limited in order to protect native
habitat, wildlife, wildlife habitat, and wetlands.
II.
Plaintiffs’ request the Court take judicial notice of the
October 1, 2015 Joint Motion for Court Approval of Settlement filed
in Case Nos. 08-CA-6933 and 08-CA-6988 in the Circuit Court of the
Twentieth Judicial Circuit and corresponding Settlement Agreement
between Collier County and the owners of HHH Ranch, the Husseys.
(Doc. #94.)

Defendants respond that they have no objection to the

Court taking judicial notice of the contents of the Settlement
Agreement and the fact that the Joint Motion was filed, but object
to the Court taking judicial notice of “unspecified adjudicative
facts” set forth in the Motion.

(Doc. #95.)

“The court may judicially notice a fact that is not subject
to reasonable dispute because it:
the

trial

court's

territorial

(1) is generally known within
jurisdiction;

or

(2)

can

be

accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”

Fed. R. Evid. 201.

The “court

may take judicial notice of a document filed in another court not
for the truth of the matters asserted in the other litigation, but
rather

to

filings.”

establish

the

fact

of

such

litigation

and

related

United States v. Jones, 29 F.3d 1549, 1553 (11th Cir.

1994) (internal quotation marks and citation omitted).

14

Accordingly, the Court will take judicial notice of the Joint
Motion for Court Approval of Settlement and Settlement Agreement
for the fact that the documents were filed in the Circuit Court
and for purposes of what statements the documents contain, but not
for the truth of the statements contained therein.
III.
Defendants’ motion to dismiss asserts that plaintiffs’ claims
must be dismissed because (1) they are not ripe for judicial
review; (2) they fail to state a cause of action upon which relief
may be granted; (3) they are barred by the statute of limitations;
(4) they are barred by the Tenth Amendment; (5) they fail to join
two indispensable parties (the State of Florida and the Fish and
Wildlife Service); and/or (6) the individual county commissioners
are entitled to legislative immunity.

(Doc. #85.)

Plaintiffs

argue that none of the grounds for dismissal are well-founded.
Additionally, both sides have filed cross motions for summary
judgement, asserting that they should win on all counts even before
defendants have filed an Answer. (Docs. ##87, 90.)

Each side

opposes the other’s summary judgment motion (Docs. ##89, 93), but
both sides agreed at oral argument that there were no material
disputed facts.
The Court will summarize each count, address the subject
matter jurisdiction issue, and then resolve the motions as to
individual counts.

15

A.

Summary of Counts
(1)

Agricultural Land Clearing Counts:

Collier Plan CCME Policies 6.1.1 and 6.1.2(c) & (d) require
the preservation of the native vegetation in the environmentally
high quality wildlife habitat which Collier County has designated
as “Sending Lands” and “Natural Resource Protection Areas (NRPA)
Sending Lands.”

(Doc. #81, ¶ 97.)

CCME Policies 6.1.1 and 6.1.2

require land owners to preserve 80% of the native vegetation of
“Sending Lands,” and preserve 90% of the native vegetation of “NRPA
Sending Lands.”

(Id.)

Generally, a landowner may not clear lands

designated as “Sending Lands” or “NRPA Sending Lands” unless the
landowner first provides notice to Collier County by completing an
Application for an Agricultural Clearing Notification.
110.)

(Id. ¶

The landowner must also provide proof of ownership by means

of a warranty deed or tax statement, pay a $250 application fee,
provide an aerial photograph or site plan that includes a general
vegetation inventory of the property, prove that the land was
classified as agricultural by the County Property Appraiser, and
provide a description and evidence of a bona fide agricultural
operation on the property.

(Id.)

Collier County’s Application

for an Agricultural Clearing Notification contains the following
provision:
OTHER PERMITS/APPROVALS MAY BE REQUIRED FOR
WATER USE (SFWMD), WILDLIFE ISSUES (USFWS AND
FFWCC), WETLAND IMPACTS (USACOE AND SFWMD).

16

THE OWNER IS RESPONSIBLE FOR OBTAINING ALL
OTHER FEDERAL AND STATE AGENCY PERMITS AND
PROVIDING COPIES TO COLLIER COUNTY LAND
DEVELOPMENT SERVICES DEPARTMENT TO FILE PRIOR
TO CLEARING OF LAND.
(Doc. #61-3, p. 6.)
CCME

Policy

agricultural

6.1.5

purposes

exempts

from

the

new

native

clearing
vegetation

of

land

for

preservation

requirements of CCME Policies 6.1.1 and 6.1.2, provided that “any
new clearing of land for agriculture shall not be converted into
non-agricultural development for 25 years.”
05.)

(Doc. #81, ¶¶ 104-

If the agricultural landowner complies with the procedural

application process with Collier County, the landowner receives
the County’s authorization to clear the land without having to
comply with the native vegetation preservation requirements or
prepare any plan or obtain any permit pursuant to the ESA.
In an August 15, 2013 letter, FWS advised Collier County that
land clearing for agricultural conversion was subject to the
prohibitions of the ESA and the loss of habitat would likely result
in a “take” of Florida panthers and RCWs.

(Id. ¶ 120.)

Thus, the

landowner cannot actually clear land for agricultural purposes
without obtaining the ITP required by the ESA in addition to the
County’s

authorization.

Collier

County

has

never

denied

an

Agricultural Clearing Notification application for land in NBM
(id. ¶ 111), and as of April 29, 2014, had received and approved

17

twenty-four Applications for an Agricultural Clearing Notification
concerning 975.39 acres of land in NBM, (id. ¶ 115).
In Count I of the Third Amended Complaint, plaintiffs allege
that CCME Policy 6.1.5 is pre-empted by § 6(f) of the ESA because
it is less restrictive than the obligations imposed by the ESA,
and seek declaratory and prospective injunctive relief.
35, 48, 51, 75-76, 104-08.)

(Id. ¶¶

In Count IV of the Third Amended

Complaint, plaintiffs assert that the County’s “foreseeable future
authorizations of agricultural land clearing of occupied Florida
panther and RCW habitat in NBM will reasonably likely cause injury,
harm

and

harassment

to

the

Florida

constitute a “take” under ESA § 9.
(2)

panthers

and

RCWs”

which

(Doc. #81, ¶¶ 199, 217-26.)

Single Family Dwellings Permitting Counts:

CCME Policy 7.1.2 provides in pertinent part that “nonagricultural

development,

excluding

single

family

residences,

shall be directed away from listed species and their habitats” by
complying

with

certain

guidelines

and

standards,

including

wildlife surveys of listed species and development of a wildlife
management plan describing how the project directs incompatible
land uses away from the listed species and their habitats.
#81, ¶ 145.)

(Doc.

This provision thus exempts individual single family

residences from being directed away from listed species and their
habitat and from having to comply with the guidelines and standards
outlined in CCME Policy 7.1.2.

(Id. ¶ 146.)

18

As a result of this

exemption, Collier County has approved the platting of residential
lots of five acres or less in NBE and NGGE and has annually issued
development permits for single family residences on approximately
1,740 acres of vacant single family lots in NGGE.

(Doc. #33-1, ¶¶

68, 71.)
In Count II of the Third Amended Complaint, plaintiffs allege
that CCME Policy 7.1.2 is pre-empted by § 6(f) of the ESA because
it is less stringent than obligations imposed by the ESA, and seek
declaratory and injunctive relief.

(Doc. #81, ¶¶ 126, 165-66.)

In Count V of the Third Amended Complaint, plaintiffs assert that
the

County’s

“past

and

foreseeable

future

authorizations

of

individual single-family residences in NBM and NGGE in occupied
Florida panther Primary and Secondary Zone habitat has caused
indirect violations of ESA §9, and is reasonably likely in the
future to cause, cause [sic] indirect injury, harm and harassment
of Florida panthers in violation of ESA §9.”

(Id. ¶¶ 228, 249-

52.)
(3)

Wilson Boulevard Extension Counts:

The Collier County Plan and Collier County’s Long Range
Transportation Plan authorize the extension of Wilson Boulevard
through NBM, which will sever approximately 4,000 acres of occupied
Florida panther breading habitat.
County

is

Developer

currently

using

Contribution

(Doc. #87, pp. 19-21.)

advanced

Agreements,

19

right-of-way
zoning

Collier

dedications,

approvals,

and

reservation agreements to obtain and maintain the right-of-way
dedications for the Wilson Boulevard Extension.

(Id. at 20.)

Florida Rock Industries, Inc. is currently performing the design
duties for Phase I of the Wilson Boulevard Extension pursuant to
a Developer Agreement with Collier County.

(Id. at 20-21.)

On May 8, 2009, the FWS submitted written objections regarding
the

Wilson

Boulevard

Transportation
recommended

Extension

Department.

that

Collier

to

(Doc.
County

the

Collier

County

#33-1,

¶

55.)

The

consider

a

landscape

FWS

level

approach to conservation and development, especially in areas
needed by the Florida panther and other federally listed species.
(Id.)

The FWS also recommended that Collier County work with FWS

“to develop a county-wide Habitat Conservation Plan” for county
projects.

(Id.)

In Count III of the Third Amended Complaint, plaintiffs allege
that the County’s “foreseeable future regulatory actions related
to the implementation of the Wilson Boulevard Extension in NBM
without the FWS approval and issuance of an ESA §10 HCP and ITP”
are pre-empted by ESA § 6(f).

(Doc. #81, ¶ 167.)

The “regulatory

actions” taken by the County are the adoption of a Long Range
Transportation Plan depicting the extension; enactment of the
Collier Plan NBM Overlay map which depicts and authorizes the
extension; the enactment of the Collier Plan FLUE text referring
to the extension and obtaining dedicated land by ongoing rezoning;

20

official identification and public notice of the extension; use of
various methods to obtain the right-of-way dedications for the
extension; execution of a 2007 Developer Agreement requiring a
certain corporation to dedicate, design, and construct Phase I of
the extension; 2014 approval by the County Board of Commissioners
of

the

purchase

302

acres

in

NBM

to

accommodate

the

future

extension; and right-of-way negotiations with the owners of HHH
Ranch for the extension.

(Id. ¶ 191.)

It is further alleged that

the regulatory actions are less restrictive than requirements of
the ESA (Id. ¶ 197), and therefore pre-empted by § 6(f) of the
ESA.
In addition to the pre-emption claim, Count III also includes
a substantive taking claim similar to that in Count VI. Plaintiffs
assert that the County “has taken regulatory actions to designate
and implement the extension of Wilson Boulevard . . . as an urban
design,

180

foot

wide,

four-lane

roadway”

severing

occupied

Florida panther breeding acreage and passing through RCW habitat
resulting in an incidental take.

(Id. ¶¶ 186-90).

The County has

refused to apply for an ESA §10 HCP and ITP for the road extension
(id. ¶¶ 192, 198), and plaintiffs allege that this “has the likely
foreseeable impact of eliminating consideration of alternatives”
to

that

route,

“eliminating

currently

available

maximum

practicable minimization actions,” and reducing the likelihood of
survival and recovery of the Florida panther, (id. ¶¶ 193-96).

21

These regulatory actions are alleged to constitute an indirect
illegal harming and harassing of the Florida panther and RCW. (Id.
¶ 196.)
In Count VI of the Third Amended Complaint, plaintiffs assert
that the County’s “past and foreseeable future authorizations of
the extension of Wilson Boulevard in NBM in occupied Florida
panther Primary and Secondary Zone habitat, and occupied RCW
habitat, will in the future cause indirect injury, and direct harm
and harassment of Florida panthers and RCWs in violation of ESA
§9.”
B.

(Id. ¶¶ 254, 273-79.)
Subject Matter Jurisdiction:

Ripeness of Claims

Defendants

district

assert

that

the

court

lacks

subject

matter jurisdiction 2 because none of the claims are ripe for
judicial review. (Doc. #85, pp. 4-6.) Subject matter jurisdiction
challenges are addressed in a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(1).

Aqua Log, Inc. v. Lost & Abandoned Pre-Cut

Logs & Rafts of Logs, 709 F.3d 1055, 1058 (11th Cir. 2013); Goodman
ex rel Goodman v. Sipos, 259 F.3d 1327, 1331 n.6 (11th Cir. 2001).

2

Plaintiffs’ reliance on 28 U.S.C. § 1361 for jurisdiction
(id. at ¶¶ 36, 127, 168, 200, 229, 255) is misplaced because this
is not an action to compel a federal officer, employee, or agency
to do anything; no federal officer, employee, or agency is a named
party. Further, plaintiffs’ reliance on 28 U.S.C. § 2201(a) for
jurisdiction (id.) is misplaced because the Declaratory Judgment
Act does not enlarge the jurisdiction of a federal court, but is
procedural only. Wendy’s Int’l, Inc. v. City of Birmingham, 868
F.2d 433, 435 (11th Cir. 1989).

22

When a motion to dismiss is based on a factual challenge to subject
matter jurisdiction and the jurisdictional basis of the claim is
intertwined with the merits of the case, the court applies the
Rule 56 summary judgment standard in determining whether dismissal
is appropriate.

Lawrence v. Dunbar, 919 F.2d 1525, 1530 (11th

Cir. 1990).
“Federal
possessing
statute.”

courts

only

are

that

power

courts

of

limited

authorized

by

jurisdiction,

Constitution

and

Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (internal

quotation marks omitted) (quoting Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994)).

“Article III, § 2, of the

Constitution limits the jurisdiction of federal courts to ‘Cases’
and ‘Controversies,’ which restricts the authority of federal
courts

to

resolving

controversies.”

the

legal

rights

of

litigants

in

actual

Genesis Healthcare Corp. v. Symczyk, 133 S. Ct.

1523, 1528 (2013) (internal quotation marks and citation omitted).
See also Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341
(2014).

Ripeness principles “originate[] from the Constitution's

Article III requirement that the jurisdiction of the federal courts
be limited to actual cases and controversies.”

Harris v. Mexican

Specialty

(11th

Foods,

Inc.,

564

F.3d

1301,

1308

Cir.

2009)

(citation omitted).
To determine whether a claim is ripe for judicial review,
courts consider both “the fitness of the issues for judicial

23

decision” and “the hardship of withholding court consideration.”
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 670
n.2 (2010);

Nat’l Park Hosp. Ass’n v. Dep’t of the Interior, 538

U.S. 803, 808 (2003).
consider:

In the administrative context, courts

“(1) whether delayed review would cause hardship to the

plaintiffs;

(2)

whether

judicial

intervention

would

inappropriately interfere with further administrative action; and
(3)

whether

the

courts

would

benefit

from

further

factual

development of the issues presented.”

Ohio Forestry Ass’n v.

Sierra Club, 523 U.S. 726, 733 (1998).

Generally, “[a] claim is

not ripe for adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at all.”
Texas

v.

United

quotation

marks

States,
and

523

U.S.

citation

296,

300

omitted).

(1998)

(internal

Ripeness

is

a

“justiciability doctrine designed to prevent the courts . . . from
entangling

themselves

in

abstract

disagreements

over

administrative policies” and to “shield[] agencies from judicial
interaction until an administrative decision has been formalized
and its effects felt in a concrete way by the challenging parties.”
Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach, 727 F.3d
1349, 1356 (11th Cir. 2013) (internal quotation marks and citations
omitted).

The ripeness of a claim is a legal question.

B’Nai Zion, Inc., 727 F.3d at 1356.

24

Temple

Application of the ripeness principles varies depending on
whether the challenge to the regulation is facial or as-applied.
Because the question of ripeness depends on
the timing of the adjudication of a particular
issue, it applies differently to facial and
as-applied challenges.
A facial challenge
asserts
that
a
law
always
operates
unconstitutionally;
therefore,
a
facial
challenge will succeed only if the statute
could never be applied in a constitutional
manner. In the context of a facial challenge,
a purely legal claim is presumptively ripe for
judicial review because it does not require a
developed factual record.
An as-applied
challenge, by contrast, addresses whether a
statute is unconstitutional on the facts of a
particular case or to a particular party.
Because such a challenge asserts that a
statute cannot be constitutionally applied in
particular
circumstances,
it
necessarily
requires the development of a factual record
for the court to consider.
Harris, 564 F.3d at 1308 (internal quotation marks, emphasis, and
citations omitted.)

In this case, plaintiffs assert a facial

challenge to the CCME Policies in Count I, Count II, and a portion
of Count III; they assert as-applied challenges in Counts IV-VI
and a portion of Count III.
Defendants in turn assert a facial challenge to the ripeness
of the claims, asserting that the complaint “remains absent of
factual allegations which would establish that Plaintiffs’ claims
are ripe for review,” (Doc. #85, pp. 2-3) and that the claims are
insufficient as a matter of law to establish ripeness because
“Plaintiffs have not alleged sufficient facts to causally connect

25

these acts with any harm to the Florida panthers or RCWs,” (id. at
5).

“A ‘facial attack’ on the complaint requires the court merely

to look and see if the plaintiff has sufficiently alleged a basis
of

subject

matter

jurisdiction,

and

the

allegations

in

his

complaint are taken as true for the purposes of the motion.”
McElmurray v. Consol. Gov't of Augusta–Richmond Cnty., 501 F.3d
1244,

1251

(11th

Cir.

alterations omitted).

2007)

(internal

quotation

marks

and

If a court determines it has no subject

matter jurisdiction, its only remaining function is to dismiss the
case.

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94

(1998).

Because this is not a decision on the merits, any

dismissal must be without prejudice.

Stalley ex rel U.S. v.

Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th
Cir. 2008).
Two

preliminary

plaintiffs.

issues

regarding

ripeness

are

raised

by

First, plaintiffs assert that the ripeness doctrine

is simply not applicable to ESA citizen suits because Congress has
authorized “ESA citizen suits which allege potential wholly-future
violations of the ESA.”

(Doc. #86, p. 6.)

The Court disagrees.

As discussed above, ripeness is an Article III requirement,
and as such it cannot be entirely swept aside by Congress.

The

Court concludes, however, that Congress has not attempted to do so
with the ESA citizen suit provisions. While some claims for future
violations are allowable under the ESA, the threat of future harm

26

must still satisfy Article III.

See Sierra Club, 523 U.S. 726

(holding the controversy brought under the ESA was not ripe for
judicial review).

Plaintiffs’ position that “potential wholly-

future violations of the ESA” are always ripe results in federal
courts being in the advisory opinion business which, as noted in
Clinton v. Jones, 520 U.S. 681, 700 n.33 (1997), has been rejected
for centuries.

Rather, for future injuries to be ripe, they must

satisfy the standard for an injury sufficient to invoke Article
III standing:
[A]n injury must be concrete, particularized,
and actual or imminent; fairly traceable to
the challenged action; and redressable by a
favorable ruling.
Although imminence is
concededly a somewhat elastic concept, it
cannot be stretched beyond its purpose, which
is to ensure that the alleged injury is not
too speculative for Article III purposes—that
the injury is certainly impending. Thus, we
have repeatedly reiterated that threatened
injury
must
be
certainly
impending
to
constitute
injury
in
fact,
and
that
allegations of possible future injury are not
sufficient.
Clapper

v.

Amnesty

Int’l

USA,

133

S.

Ct.

1138,

1147

(2013)

(internal quotation marks, citations, and alterations omitted.)
Second,

the

Court

also

rejects

plaintiffs’

“prudential” principles relating to ripeness.

reliance

on

A unanimous Supreme

Court has retreated from “prudential” standing principles not
founded on Article III requirements, Lexmark Int’l, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377 (2014), and the Supreme

27

Court has declined to consider the continuing vitality of the
prudential ripeness doctrine where there was a sufficient Article
III injury.
referred

to

Driehaus, 134 S. Ct. at 2347.
as

“prudential”

principles

What were previously
are

actually

the

interpretation of the particular statutes at issue, and do not
replace Article III determinations.

Lexmark Int’l, Inc., 134 S.

Ct. at 1387-88.
With these preliminary matters addressed, the Court considers
the ripeness of the individual counts.
(1)

Count I:

Agricultural Land Clearing Exemption

In Count I of the Third Amended Complaint, plaintiffs allege
that Policy 6.1.5 is pre-empted by § 6(f) of the ESA because it is
less restrictive than the obligations imposed by the ESA.

This is

a facial challenge to Policy 6.1.5, and is ripe as pled.

Harris,

564 F.3d at 1308.

No further factual development is necessary to

determine the validity of the challenge to CCME Policy 6.1.5, and
delayed

review

would

cause

undue

hardship

to

plaintiffs.

Accordingly, the Court concludes that Count I is ripe for judicial
review.
(2)

Count II:

Single-Family Residence Exemption

In Count II of the Third Amended Complaint, plaintiffs allege
that CCME Policy 7.1.2 is pre-empted by § 6(f) of the ESA because
it is less stringent than obligations imposed by the ESA.

This is

a facial challenge to Policy 7.1.2, and is ripe as pled.

Id.

28

No

further factual development is necessary to determine the validity
of the challenge to CCME Policy 7.1.2, and delayed review would
cause

undue

hardship

to

plaintiffs.

Accordingly,

the

Court

concludes that Count II is ripe for judicial review.
(3)

Count III:

Wilson Boulevard Extension

In Count III of the Third Amended Complaint, plaintiffs allege
that the County’s “foreseeable future regulatory actions related
to the implementation of the Wilson Boulevard Extension in NBM
without the FWS approval and issuance of an ESA §10 HCP and ITP”
are pre-empted by ESA §6(f).

(Doc. #81, ¶ 167.)

Plaintiffs assert

that the County “has taken regulatory actions to designate and
implement the extension of Wilson Boulevard,” and identifies these
“regulatory actions.”

(Id. ¶¶ 186-91.)

that

actions

the

regulatory

are

Count III further alleges

less

restrictive

than

the

requirements of the ESA (id. ¶ 197), and therefore pre-empted by
§ 6(f) of the ESA.
This portion of Count III is a facial challenge to the
“regulatory actions” and is ripe as pled.
1308.

Harris, 564 F.3d at

No further factual development is necessary to determine

the validity of the challenge to the “regulatory actions,” and
delayed

review

would

cause

undue

hardship

to

plaintiffs.

Accordingly, the Court concludes that the pre-emption portion of
Count III is ripe for judicial review.

29

The portion of Count III

setting forth a “take” claim will be discussed in connection with
Count VI.
(4)

Count IV:

Agricultural Land Clearing Activities

In Count IV of the Third Amended Complaint, plaintiffs assert
that

the

County’s

“foreseeable

future

authorizations

of

agricultural land clearing of occupied Florida panther and RCW
habitat in NBM will reasonably likely cause injury, harm and
harassment of Florida panthers and RCWs” which constitutes a “take”
under ESA § 9.

(Doc. #81, ¶¶ 199, 217-26.)

This is an as-applied

challenge to the County policy, and the Court finds it to be ripe
for judicial review.
The Third Amended Complaint alleges that Collier County has
processed twenty-four Applications for an Agricultural Clearing
Notification concerning 975.39 acres of land in NBM, and has never
denied such an application.

The fact that Applications are being

submitted

sufficient

and

granted

is

requirement for Article III purposes.
implemented,

and

continues

to

to

satisfy

the

injury

Because Collier County has

implement

CCME

Policy

6.1.5,

plaintiffs’ allegations of “takings” do not rest on contingent,
hypothetical future events, and are fit for adjudication.
(5)

Count V:

Single-Family Residence Permitting Activities

In Count V of the Third Amended Complaint, plaintiffs assert
that the County’s “past and foreseeable future authorizations of
individual single-family residences in NBM and NGGE in occupied

30

Florida panther Primary and Secondary Zone habitat has caused
indirect violations of ESA §9, and is reasonably likely in the
future to cause, cause [sic] indirect injury, harm and harassment
of Florida panthers in violation of ESA §9.”
52.)

(Id. ¶¶ 228, 249-

This is an as-applied challenge to the County policy, and

the Court finds it to be ripe for judicial review.
The Third Amended Complaint alleges that Collier County has
approved the platting of residential lots of five acres or less in
NBM and NGGE, and has issued development permits for single family
residences on approximately 1,740 acres of vacant single family
lots in NGGE.

The fact that single family residence permits are

being submitted and granted is sufficient to satisfy the injury
requirement for Article III purposes.
implemented,

and

continues

to

Because Collier County has

implement,

CCME

Policy

7.1.2,

plaintiffs’ allegations of “takings” do not rest on contingent,
hypothetical future events, and are fit for adjudication.
(6)

Counts III
Activities

Count

III

alleges

and

VI:

that

the

Wilson

Boulevard

identified

County

Extension

regulatory

actions constitute an indirect illegal harming and harassing of
the Florida panther and RCW (id. ¶ 196), and the County has refused
to apply for an ESA § 10 HCP and ITP for the road extension, (id.
¶¶

192,

198).

Plaintiffs

assert

that

this

“has

the

likely

foreseeable impact of eliminating consideration of alternatives”

31

to

that

route,

“eliminating

currently

available

maximum

practicable minimization actions,” and reducing the likelihood of
survival and recovery of the Florida panther. (Id. ¶¶ 193-96.)
This is an as-applied challenge to Collier County’s regulatory
actions.
In Count VI of the Third Amended Complaint, plaintiffs assert
that the County’s “past and foreseeable future authorizations of
the extension of Wilson Boulevard in NBM in occupied Florida
panther Primary and Secondary Zone habitat, and occupied RCW
habitat, will in the future cause indirect injury, and direct harm
and harassment of Florida panthers and RCWs in violation of ESA
§9.”

(Id. ¶¶ 254, 273-79.)

This is an as-applied challenge to

the County policy.
Defendants do not dispute an intent to someday extend Wilson
Boulevard, or that they have taken the steps identified in the
Third

Amended

Complaint.

Defendants

assert,

however,

that

plaintiffs’ claim regarding the Wilson Boulevard Extension is not
ripe because “there is no evidence that the County will construct
the

Wilson

Boulevard

extension

compliance with the ESA.”

in

a

manner

(Doc. #90, p. 14.)

which

is

not

in

The County does not

dispute that at some point it will need to comply with the ESA
requirements, but asserts now is not that time.
Plaintiffs

contend

that

its

claims

regarding

the

Wilson

Boulevard Extension are ripe for review because the ESA allows for

32

claims based upon “wholly-future” violations. (Doc. #87, p. 9.)
The

Court

disagrees

with

defendants’

position,

as

discussed

earlier.
The gist of Count III and Count VI is that the regulatory
actions taken so far by the County requires the County to submit
the HCP and obtain an ITP for the Wilson Boulevard extension.
Plaintiffs allege that what the County has done to date effectively
eliminates potential alternative routes for the extension, which
makes the regulatory actions ripe for judicial challenge.
The Court concludes that the Count III and Count VI claims —
that the County is obligated to comply with the ESA HCP and ITP
obligations now — is ripe for judicial review.

No speculation of

future events is involved, since plaintiffs assert that the County
has already passed the threshold for ESA compliance.

See Pittman

v. Cole, 267 F.3d 1269, 1278 (11th Cir. 2001) (claims are less
likely to be considered fit for judicial review when they require
“speculation about contingent future events”).

While the parties

dispute whether the time has come for the County to proceed with
the HCP and ITP, that dispute goes to the merits of the dispute,
not a jurisdictional ripeness issue.
The Court concludes that all six counts are ripe for judicial
review.

Defendant’s motion to dismiss on ripeness grounds is

denied.

33

C.

Motion to Dismiss and Motion for Summary Judgment Standards
Defendants seek dismissal of all counts for failure to state

a claim upon which relief may be granted.

Under Federal Rule of

Civil Procedure 8(a)(2), a Complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled
to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires

more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”

Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007)(citation omitted). To survive
dismissal, the factual allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative level.”
Id. at 555.

See also Edwards v. Prime Inc., 602 F.3d 1276, 1291

(11th Cir. 2010).

This requires “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)(citations omitted). 3
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate

3

The Court rejects plaintiffs’ reliance on the former, now
retired, standard that a complaint should not be dismissed unless
it appears beyond a doubt that plaintiff can prove no set of
circumstances that would entitle him to relief. (Doc. #86, p. 3.)
See Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 714 (11th Cir.
2014).

34

factual support are entitled to no assumption of truth,”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

defendant’s

facially plausible.”
1337

(11th

omitted).

Cir.

“Factual allegations that are merely
liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

2012)(internal

quotation

marks

and

citations

Thus, the Court engages in a two-step approach: “When

there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”

Iqbal, 556 U.S. at 679.

All parties also seek summary judgment on all counts. Summary
judgment is appropriate only when the Court is satisfied that
“there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

“An issue of fact is ‘genuine’ if the record taken

as a whole could lead a rational trier of fact to find for the
nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us, Inc., 611

F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material” if it may

affect the outcome of the suit under governing law.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the

35

non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. Am.’s Favorite Chicken Co., 198 F.3d
815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp. Co.
v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983) (finding
summary judgment “may be inappropriate even where the parties agree
on the basic facts, but disagree about the factual inferences that
should be drawn from these facts”)).

“If a reasonable fact finder

evaluating the evidence could draw more than one inference from
the facts, and if that inference introduces a genuine issue of
material fact, then the court should not grant summary judgment.”
Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
D.

Individual Counts
With the jurisdictional matter resolved for each count, the

Court will address the issues raised in the motions as they relate
to the individual counts.

At oral argument neither party believed

it mattered whether the issues were decided under a motion to
dismiss standard or a summary judgment standard.
(1)

Count I:
(a)

ESA Pre-emption of CCME Policy 6.1.5

Dismissal for Failure to State a Claim:

Defendants assert that Count I, which alleges that CCME Policy
6.1.5 is pre-empted by the ESA, fails to state a claim upon which

36

relief may be granted.

Defendants argue that under the Supremacy

Clause, a state regulation is pre-empted only if (a) expressly
pre-empted by Congress, or (b) Congress has occupied a field with
comprehensive regulation, or (c) there is a conflict between state
and federal law.

This requires, defendants argue, that plaintiffs

show the CCME Policies are regulations “respecting the taking of
an endangered species or threatened species” which prevent federal
agencies from protecting those species.

Defendants argue that

none of these situations exist in this case, and therefore CCCM
Policy 6.1.5 is not pre-empted.

(Doc. #85, pp. 7-8.)

Plaintiffs disagree, and respond that they have adequately
pled and shown that CCME Policy 6.1.5 is expressly pre-empted
pursuant

to

16

U.S.C.

§

1535(f)

because

the

regulations

are

facially less restrictive than the ESA taking provisions. (Doc.
#81, pp. 10-38; Doc. #87, pp. 14-17.) At oral argument, plaintiffs
asserted that all three grounds for pre-emption apply in this case.
At the motion to dismiss stage of the proceedings, the issue
is whether plaintiffs have alleged sufficient facts to establish
a plausible pre-emption claim. After a review of the Third Amended
Complaint, the Court finds that plaintiffs have met this standard
as to Count I.

Therefore, this portion of the motion to dismiss

is denied.

37

(b)

Dismissal Based on Statute of Limitations:

Defendants assert that all of the claims in the Third Amended
Complaint are barred by the six year statute of limitations because
the offending conduct first occurred in 2006 and the Collier Plan
was amended in 2002.

(Doc. #85, p. 16.)

Plaintiffs respond that

there is simply no statute of limitations issue in this case since
the unlawful conduct is ongoing.
“Generally, the existence of an affirmative defense will not
support a motion to dismiss,” Quiller v. Barclays Am./Credit, Inc.,
727 F.2d 1067, 1069 (11th Cir. 1984), aff’d on reh'g, 764 F.2d
1400 (11th Cir. 1985) (en banc) (per curiam) (reinstating panel
opinion),

because

plaintiffs

are

not

affirmative defense in their complaint.

required

to

negate

an

La Grasta v. First Union

Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

A complaint may

be dismissed, however, when the existence of an affirmative defense
“clearly appears on the face of the complaint.”
at 1069.
Cir.

Quiller, 727 F.2d

See also Bingham v. Thomas, 654 F.3d 1171, 1175 (11th

2011);

La

Grasta,

358

F.3d

at

845

(“[A]

Rule

12(b)(6)

dismissal on statute of limitations grounds is appropriate only if
it is ‘apparent from the face of the complaint’ that the claim is
time-barred”) (quoting Omar ex rel. Cannon v. Lindsey, 334 F.3d
1246, 1251 (11th Cir. 2003)); Douglas v. Yates, 535 F.3d 1316,
1321 (11th Cir. 2008)(same).

38

Here, it is clear from the Third Amended Complaint that all
the activities which plaintiffs assert violate the ESA are ongoing
and will continue in the foreseeable future.

There is no statute

of limitations defense which is so clearly set forth on the face
of the Third Amended Complaint that dismissal would be justified.
This portion of the motion to dismiss is denied.
(c)

Dismissal of Claims as Barred by Tenth Amendment

Defendants assert that plaintiffs seek to compel Collier
County

and

its

Commissioners

to

require

applicants

clearing to first comply with their ESA obligations.

for

land

As such,

defendants argue that all claims are barred by the Tenth Amendment
to the United States Constitution because the federal government
cannot compel a local government to enforce or administer a federal
regulatory program.

(Doc. #85, pp. 16-17.)

Plaintiffs respond

that they have requested no such relief, but merely ask that the
County be prevented from enforcing the challenged portions of the
CCME Policies.
Generally,

the

Tenth

Amendment

precludes

Congress

from

requiring a state legislature to enact any laws or regulations,
and from commanding state officers to administer or enforce a
federal regulatory program.

Printz v. United States, 521 U.S.

898, 935 (1997); New York v. United States, 505 U.S. 144, 162-70
(1992); Montgomery Cnty. Comm'n v. Fed. Hous. Fin. Agency, 776
F.3d 1247, 1260-61 (11th Cir. 2015).

39

This is an affirmative

defense, and is not so clearly set forth on the face of the Third
Amended Complaint that dismissal would be justified.

This portion

of the motion to dismiss is denied.
(d)

Failure to Join Indispensable Parties

Defendants assert that the Third Amended Complaint must be
dismissed because plaintiffs have not joined the State of Florida
or the FWS, both of whom are indispensable parties.
17.)

(Doc. #85, p.

Plaintiffs deny that either is an indispensable party.
To determine whether a person or entity is required to be

joined as a party, a court determines whether under Rule 19(a)(1)
the person in question is one who should be joined if feasible.
Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d
1263, 1279-80 (11th Cir. 2003).

This requires the court to

determine if the unnamed person or entity is “[a] person who is
subject to service of process and whose joinder will not deprive
the court of subject-matter jurisdiction” and whether:
(A) in that person's absence, the court cannot
accord complete relief among existing parties;
or (B) that person claims an interest relating
to the subject of the action and is so situated
that disposing of the action in the person's
absence may:(i) as a practical matter impair
or impede the person's ability to protect the
interest; or (ii) leave an existing party
subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent
obligations because of the interest.
Fed.

R.

Civ.

P.

19(a)(1).

See

Winn-Dixie

Stores,

Dolgencorp, LLC, 746 F.3d 1008, 1039 (11th Cir. 2014).

40

Inc.

v.

Here, neither proposed party is a party who should be joined
under Rule 19(a)(1).

“A party is considered ‘necessary’ to the

action if the court determines either that complete relief cannot
be granted with the present parties or the absent party has an
interest in the disposition of the current proceedings.”

Laker

Airways, Inc. v. British Airways, PLC, 182 F.3d 843, 847 (11th
Cir. 1999).

Plaintiffs do not seek any relief from the State of

Florida or the FWS, and complete relief can be granted without
their presence and participation in the litigation.

Resolving the

case will not impair or impede the State of Florida or the FWS in
their ability to protect their interests, or leave Collier County
subject

to

a

obligations.

substantial

risk

of

incurring

inconsistent

Accordingly, this portion of the motion to dismiss

is denied.
(e)

Legislative Immunity

Defendants assert that the Third Amended Complaint must be
dismissed as to the individual defendants sued in their official
capacities because each is entitled to legislative immunity. (Doc.
#85, pp. 17-19.)

Plaintiffs assert defendants are not entitled to

such immunity.
When
legislative

exercising
activity,

functions
state,

in

the

regional,

sphere
local

of

legitimate

legislators,

and

their surrogates enjoy immunity from civil liability which is
parallel to that provided in the Speech and Debate Clause of the

41

United States Constitution.

Bogan v. Scott-Harris, 523 U.S. 44,

48-55 (1998); Bryant v. Jones, 575 F.3d 1281, 1303 (11th Cir.
2009); Woods v. Gamel, 132 F.3d 1417, 1419 (11th Cir. 1998); Ellis
v. Coffee Cnty. Bd. of Registrars, 981 F.2d 1185, 1192 (11th Cir.
1993).

“Whether an act is legislative turns on the nature of the

act,” not the intent or motive of the official.

Bogan, 523 U.S.

at 54. Officials claiming protection “must show that such immunity
is justified for the governmental function at issue.”
Melo, 502 U.S. 21, 29 (1991).

Hafer v.

The privilege applies only to

legislators engaging in actions considered “an integral part of
the

deliberative

and

communicative

processes

by

which

[legislators] participate in . . . proceedings with respect to the
consideration and passage or rejection of proposed legislation.”
Smith v. Lomax, 45 F.3d 402, 405 (11th Cir. 1995) (alterations in
original) (citations omitted).

Voting for an ordinance or other

legislation is “quintessentially legislative.”
55.

Bogan, 523 U.S. at

Legislative immunity does not, however, protect the entity

itself.

Id. at 53.

Here, Count I is a facial challenge to CCCM Policy 6.1.5, in
which plaintiffs claim its very existence is unlawful.

The only

relevant conduct committed by the commissioners in such a challenge
is

the

enactment

of

the

“quintessentially legislative.”

county

legislation,

which

is

While legislative immunity is an

affirmative defense, the face of the complaint clearly establishes

42

that the individual defendants are entitled to absolute immunity
as to Count I.

In looking at the summary judgment record, it is

clear that any attempt to further amend this count would be futile.
Therefore,

defendants’

motion

to

dismiss

Count

I

as

to

the

individual defendants in their official capacities is granted and
Count I is dismissed with prejudice as to the Commissioners.
(f)

Summary Judgment

The issue in Count I is whether CCME Policy 6.1.5 is preempted by the ESA.

Plaintiffs assert the answer is yes because

CCME Policy 6.1.5 is less restrictive than the obligations under
the ESA, while defendants assert the answer is no because CCME
Policy 6.1.5 is not less restrictive than the ESA obligations and
it is not impossible to comply with both CCME Policy 6.1.5 and the
ESA provisions. (Doc. #89, pp. 4-5, 10-12; Doc. #90, pp. 7-11.)
The Supremacy Clause, U.S. Const. Art. VI, cl. 2, invalidates
state laws that “interfere with, or are contrary to,” federal law.
Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707,
712 (1985) (citation omitted).
in three ways:

Federal law can pre-empt state law

(1) Congress may expressly pre-empt state law; (2)

pre-emption may be inferred where Congress has occupied a given
field with comprehensive regulation; and (3) state law is preempted to the extent that it actually conflicts with federal law.
Id.

At oral argument, plaintiffs asserted that all three types of

pre-emption apply here.

43

i.

Express Pre-emption

The ESA pre-emption provision, entitled “Conflicts between
Federal and State laws,” provides in pertinent part:
Any State law or regulation respecting the
taking of an endangered species or threatened
species may be more restrictive than the
exemptions or permits provided for in this
chapter or in any regulation which implements
this chapter but not less restrictive than the
prohibitions so defined.
16 U.S.C. § 1535(f).

The Court’s “task of statutory construction

must in the first instance focus on the plain wording of the
clause, which necessarily contains the best evidence of Congress'
pre-emptive intent.”

Sprietsma v. Mercury Marine, 537 U.S. 51,

62-63 (2002) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S.
658, 664 (1993)).
The parties agree that this provision allows Collier County
to have and enforce more restrictive laws and regulations than the
ESA and its implementing regulations, but not less restrictive
laws and regulations. (Doc. #87, pp. 6-7; Doc. #90, pp. 7-8.)

The

parties disagree, however, as to whether or not CCME Policy 6.1.5
is

in

fact

more

or

less

restrictive

that

the

ESA

and

its

implementing regulations.
As

previously

discussed,

a

landowner

may

not

clear

agricultural land designated as “Sending Lands” or “NRPA Sending
Lands” unless the landowner first completes an Application for an
Agricultural Clearing Notification, provides proof of ownership by

44

means of a warranty deed or tax statement, pays a $250 application
fee, provides an aerial photograph or site plan that includes a
general vegetation inventory of the property, proves that the land
was classified as agricultural by the County Property Appraiser,
and provides a description and evidence of a bona fide agricultural
operation

on

the

property.

The

County’s

Application

for

an

Agricultural Clearing Notification provides that:
OTHER PERMITS/APPROVALS MAY BE REQUIRED FOR
WATER USE (SFWMD), WILDLIFE ISSUES (USFWS AND
FFWCC), WETLAND IMPACTS (USACOE AND SFWMD).
THE OWNER IS RESPONSIBLE FOR OBTAINING ALL
OTHER FEDERAL AND STATE AGENCY PERMITS AND
PROVIDING COPIES TO COLLIER COUNTY LAND
DEVELOPMENT SERVICES DEPARTMENT TO FILE PRIOR
TO CLEARING OF LAND.
(Doc. #61-3, p. 6) (emphasis added).

Reiterating this obligation,

Collier County enacted LDC § 10.02.06(A)(1)(a), which provides:
Required state and/or federal permits. Where
proposed use or developments requires state or
federal development orders or permits prior to
use or development, such development orders or
permits must be secured from state or federal
agencies
prior
to
commencement
of
any
construction and/or development, including
any changes in land configuration and land
preparation.
(emphasis added).

Thus, while landowners are not required to

comply with the ESA prior to obtaining Collier County’s approval
for

Agricultural

Clearing,

the

45

County

advises

and

requires

landowners to comply with their ESA obligations prior to actual
land clearing. 4
The Court holds that 16 U.S.C. § 1535(f) does not pre-empt
CCME Policy 6.1.5 because CCME Policy 6.1.5 is not less restrictive
than the ESA and its implementing regulations.

CCME Policy 6.1.5

requires the landowner to obtain all other federal and state agency
permits and provide copies to Collier County prior to clearing the
land.

It imposes additional requirements such as submitting an

Application to the County, payment of a fee, and submission of
certain documents.

In appropriate circumstances the landowner

will need to comply with the ESA prior to land clearing, but
nothing in the ESA requires that the county authorization be
withheld

until

after

the

federal

4

requirements

are

satisfied.

The County established this order based upon its belief that
it was not allowed to do otherwise by Florida law. In order to
eliminate duplication of regulatory authority over agricultural
activities, the Florida Legislature enacted the Florida Right to
Farm Act. Fla. Stat. § 823.14(2). The Act provides, in relevant
part, that “a local government may not adopt any ordinance,
regulation, rule, or policy to prohibit, restrict, regulate, or
otherwise limit an activity of a bona fide farm operation on land
classified as agricultural land pursuant to s. 193.461.”
Fla.
Stat. § 823.14(6). See also Fla. Stat. § 163.3162. Because the
Right to Farm Act prohibits local governments from adopting
ordinances restricting agricultural activities, Wilson v. Palm
Beach County, 62 So. 3d 1247, 1250 (Fla. 4th DCA 2011), Collier
County exempted agriculture from the preservation requirements
otherwise set forth in the CCME and LDC. (Doc. #61-3, p. 2.)
Instead, the regulations adopted by Collier County place the
impetus on the landowner to obtain the necessary permits and
approvals.

46

Obtaining

Collier

County

authorization

for

agricultural

land

clearing is an additional requirement, not a replacement of a
federal requirement.

Summary judgment is therefore granted in

favor of defendants as to this issue.
ii.

Occupy the Field Pre-emption

Plaintiffs asserted during oral argument that CCME Policy
6.1.5 is also pre-empted because the ESA occupies the field.

The

Court disagrees.
“Field preemption exists where Congress determines that a
certain

field

government.”

must

be

regulated

exclusively

by

the

federal

Fresenius Med. Care Holdings, Inc. v. Tucker, 704

F.3d 935, 939 (11th Cir. 2013)).

“[I]n the absence of explicit

statutory language, state law is pre-empted where it regulates
conduct in a field that Congress intended the Federal Government
to occupy exclusively.”
79 (1990).

English v. Gen. Elec. Co., 496 U.S. 72,

Such an intent may be inferred from a “scheme of

federal regulation . . . so pervasive as to make reasonable the
inference that Congress left no room for the States to supplement
it,” or where an Act of Congress “touch[es] a field in which the
federal interest is so dominant that the federal system will be
assumed to preclude enforcement of state laws on the same subject.”
Id. (alteration and omission in original) (quoting Rice v. Santa
Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
reflects

a

congressional

decision

47

to

“Field preemption

foreclose

any

state

regulation

in

standards.”

the

area,

even

if

it

is

parallel

to

federal

Arizona v. United States, 132 S. Ct. 2492, 2502

(2012).
It is clear that Congress did not intend for the federal
government to occupy the field exclusively.

Section 6(f) of the

ESA provides in pertinent part:
Any State law or regulation respecting the
taking of an endangered species or threatened
species may be more restrictive than the
exemptions or permits provided for in this
chapter or in any regulation which implements
this chapter but not less restrictive than the
prohibitions so defined.
16 U.S.C. § 1535(f).

The language of 16 U.S.C. § 1535(f) itself

allows other governments to participate in the protection of
endangered species, although it sets federal law as the minimum
standards which may be imposed.

Summary judgment is therefore

granted in favor of defendants as to this issue.
iii.
Conflict
federal

and

Conflict Pre-emption
pre-emption

state

arises

regulations

is

when
a

“compliance
physical

with

both

impossibility.”

Hillborough County, 471 U.S. at 713 (quoting Fla. Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963)).

Plaintiffs

argue that CCME Policy 6.1.5 is pre-empted by conflict pre-emption
because it is inherently in conflict with the prohibitions and
intent of the ESA.

(Doc. #87, p. 17.)

Specifically, plaintiffs

allege conflict because CCME Policy 6.1.5 “stands as an obstacle

48

to the accomplishment and execution of the full purposes and
objectives of Congress” because it does not require a landowner to
first obtain a FWS ESA § 10 HCP and ITP.

(Doc. #93, pp. 10-12).

Defendants respond that CCME Policy 6.1.5 is not pre-empted by the
ESA because it does not prevent the application of the ESA or
conflict with it.

(Doc. #90, pp. 7-11.)

The Court does not find

a conflict, and therefore finds no pre-emption.
It is clear from the language of the regulations that it is
not a physical impossibility for a landowner to simultaneously
comply with the requirements of CCCM 6.1.5 and the ESA.

To the

contrary, Collier County emphasizes that the landowner must comply
with all federal requirements prior to clearing any land. (See
Doc.

#61-3,

p.

6);

LDC

§

10.02.06(A)(1)(a).

Plaintiffs

are

essentially arguing that Collier County is required to withhold
issuance of its approval until a landowner complies with the
provisions of the ESA. 5

The burden of enforcement, however, lies

with federal agencies, not local governments.

Where authorization

is required from multiple agencies before an action can be taken,
nothing in the ESA compels a county to require that the ESA
approvals be obtained first.

Because landowners can, and are

required to, comply with the requirements of CCME Policy 6.1.5 and

5

Plaintiffs unsuccessfully attempted to get the FWS to take
action against agricultural land clearing in NBM prior to the
initiation of this action. (Doc. #58, p. 16.)

49

the ESA, the Court finds that CCME Policy 6.1.5 is not less
restrictive than the ESA, and is therefore not pre-empted.
Accordingly, as to Count I, defendants’ motion to dismiss is
granted as to the individual defendants based upon legislative
immunity, and is otherwise denied; plaintiffs’ motion for summary
judgment is denied; and defendants’ motion for summary judgment is
granted as to all defendants because CCME Policy 6.1.5 is not preempted by the ESA.
(2)

Count II:
(a)

ESA Pre-emption of CCME Policy 7.1.2

Dismissal For Failure to State a Claim:

Defendants assert that Count II, which alleges that CCME
Policy 7.1.2 is pre-empted by the ESA, fails to state a claim upon
which relief may be granted.

Defendants make the same arguments

as with CCME Policy 6.1.5, and plaintiffs have made the same
response.
As with Count I, the Court finds that Count II has alleged
sufficient facts which make it plausible that this facial preemption count states a claim upon which relief may be granted.
Therefore, the motion to dismiss Count II on this ground is denied.
(b)

Dismissal Based on Statute of Limitations, Tenth
Amendment, Failure to Join Indispensable Parties,
and Legislative Immunity

Defendants raise the same arguments as to these issues as to
Count II as they did regarding Count I, and plaintiffs have made
the same responses.

The Court’s finding are the same as well.

50

Accordingly, the portions of the motions to dismiss Count II
raising defenses of statute of limitations, Tenth Amendment, and
failure to join indispensable parties are denied.

The motion to

dismiss the individual Commissioners in their official capacities
based upon legislative immunity is granted, and the Commissioners
are dismissed from Count II with prejudice.
(c)

Summary Judgment Regarding Count II

CCME Policy 7.1.2 provides that individual single family
residences are exempt from certain preservation requirements set
forth

in

the

CCME.

Collier

County

asserts

that

it

exempts

individual single family residences from the requirements of CCME
Policy 7.1.2 in order to comply with Florida law. 6

This exemption,

however, does not waive the requirements of the ESA, nor does it
excuse a permit holder’s failure to comply with state and federal
law.

CCME Policy 7.1.2 explicitly requires landowners to obtain

any applicable state or federal development orders or permits prior
to the commencement of any construction and/or development.

LDC

§ 10.02.06(A)(1)(a). Indeed, a property owner that fails to comply
with the requirements of LDC § 10.02.06 may be subject to both

6

Collier County asserts that it adopted CCME Policy 7.1.2 to
comply with Fla. Stat. § 125.022(4), which provides that “a county
may not require as a condition of processing or issuing a
development permit that an applicant obtain a permit or approval
from any state or federal agency unless the agency has issued a
final agency action that denies the federal or state permit before
the county action on the local development permit.”

51

monetary and criminal penalties.

LDC § 10.02.06(D).

The Court

holds that CCME Policy 7.1.2 is not less restrictive than the ESA
and its implementing regulations.

Accordingly, as with the claim

in Count I, the Court finds that the CCME Policy 7.1.2 is not preempted

because

of

express

pre-emption,

field

pre-emption,

or

conflict pre-emption.
Accordingly, as to Count II, defendants’ motion to dismiss is
granted as to the individual defendants based upon legislative
immunity, and is otherwise denied; plaintiffs’ motion for summary
judgment is denied; and defendants’ motion for summary judgment is
granted as to all defendants because CCME Policy 7.1.2 is not preempted by the ESA.
(3)

Count III:
(a)

Wilson Boulevard Extension

Dismissal for Failure to State a Claim

Defendants assert that Count III fails to state a claim upon
which relief may be granted.

Count III essentially alleges two

claims, as is sometimes permitted by Fed. R. Civ. P. 10(b).

Count

III asserts that certain “regulatory actions” taken by the County
with regard to the future extension of Wilson Boulevard are preempted by § 6(f) of the ESA.

Count III also asserts that those

“regulatory actions” constitute an indirect illegal harming and
harassing of the Florida panther and RCW, and thus an unlawful
taking under § 9 of the ESA.

The Court addresses the pre-emption

52

portion of Count III now, and the taking portion in conjunction
with Count VI.
As with Counts I and II, the Court finds that the portion of
Count III which alleges pre-emption has alleged sufficient facts
which makes it plausible that this facial pre-emption count states
a claim upon which relief may be granted.

Therefore, the motion

to dismiss Count III on this ground is denied.
(b)

Dismissal Based Failure to Join
Parties and Legislative Immunity

Indispensable

Defendants raise the same arguments regarding failure to join
indispensable parties and legislative immunity for Count III as
they did regarding Counts I and II, and plaintiffs have made the
same responses.

The Court’s findings are the same in regard to

the defense of failure to join indispensable parties and that
portion of the motion to dismiss Count III is denied.
to

dismiss

capacities
denied.

the
based

individual
upon

Commissioners

legislative

in

immunity,

The motion

their

however,

official
is

also

While it is clear from the face of the Third Amended

Complaint

that

enacting

the

challenged

policies

is

“quintessentially legislative,” Count III alleges a variety of
“regulatory actions” as the offending conduct.
clear

that

such

“regulatory

actions”

It is not at all

fall

within

the

Commissioners’ legislative function, and therefore the motion to
dismiss is denied as to the individual commissioners.

53

(c)
Plaintiffs

Summary Judgment Regarding Count III Pre-emption
assert

that

the

County’s

foreseeable

future

regulatory actions to extend Wilson Boulevard without obtaining
FWS ESA § 10 HCP and ITP are pre-empted by ESA § 6(f).

Plaintiffs

assert that all three types of pre-emption are applicable to the
Count’s future regulatory actions to extend the Wilson Boulevard.
In briefing, defendants allege that none of the types of preemption apply to the Wilson Boulevard because pre-emption only
applies to laws and regulations, and plaintiffs have not identified
any laws or regulations that are pre-empted.
12.)

(Doc. #89, pp. 10-

At Oral Argument, defendants again asserted plaintiffs have

failed to identify any law or regulation relating to the Wilson
Boulevard that could be subject to pre-emption by the ESA.

The

Court agrees.
Plaintiffs have pointed to a finite number of actions that
they contend constitute “regulatory actions” made in implementing
the

Wilson

Boulevard

extension

—

plans,

zoning,

development

agreements, and land purchases. (Doc. #87, pp. 19-20.)

Yet,

Plaintiffs have failed to identify any law or regulation relating
to the proposed Wilson Boulevard extension that could be subject
to pre-emption.
Accordingly, as to Count III, defendants’ motion to dismiss
is denied; plaintiffs’ motion for summary judgment is denied; and
defendants’ motion for summary judgment is granted because the

54

regulatory actions relating to the extension of Wilson Boulevard
are not pre-empted by the ESA.
(4)

Counts IV and V:
(a)

“Take” Claims

Failure to State or Establish a Claim

Defendants seek dismissal and/or summary judgment of Counts
IV and V as a matter of law because the Third Amended Complaint
and the summary judgment evidence fail to establish a “take” under
the ESA.

Defendants assert plaintiffs have not alleged or shown

a single fact to establish anything more than hypothetical harm,
or identified a single land clearing authorization or single family
home permit which was issued and then utilized by the owner in a
manner

inconsistent

with

the

ESA.

(Doc.

#85,

pp.

9-11.)

Defendants also argue that its regulatory scheme does not per se
amount to a “take” because the land clearing authorizations and
single

family

home

building

permits

authorize

the

respective

activities only on the condition that the landowner otherwise
complies with federal law.

Thus, harm can only result from an

intervening independent actor — the landowner.
14.)

(Doc. #85, pp. 11-

Finally, defendants argue they cannot be liable for these

two exemptions because Collier County has no authority to regulate
the lands at issue in the manner plaintiffs seek because their
requested relief would violate Florida’s Right to Farm Act.
#85, pp. 14-15.)

(Doc.

Plaintiffs oppose all arguments presented by

defendants. (Doc. #86.)

55

Defendants assert that plaintiffs have not pointed to a single
agricultural land clearing or single family residence permit that
has been issued.

The Court addressed similar arguments in regard

to the Court’s ripeness analysis, and finds that plaintiffs have
sufficiently alleged harm for motion to dismiss purposes. In their
Third Amended Complaint, plaintiffs allege that that agricultural
land clearing authorizations and single family residence permits
are being issued by the County. 7 (Doc. #81, ¶¶ 115, 154.)

The

Court finds these allegations sufficiently allege that the County
is currently issuing authorizations and permits pursuant to CCME
policies 6.1.5 and 7.1.2.
Defendants next assert that the County’s regulatory scheme
does not per se amount to a “take” because the land clearing
authorizations and single family home building permits authorize
the respective activities only on the condition that the landowner
otherwise complies with federal law.

(Doc. #85, pp. 11-14.)

In

order for regulatory acts to result in ESA liability, there must
be a close connection between the liable actor’s conduct and
habitat destruction or killing of endangered species.
Project v. Shaw, 775 F.3d 641, 659 (5th Cir. 2014).

7

Aransas
In Sierra

Plaintiffs have provided further evidence that the County
is currently issuing permits pursuant to CCME Policies 6.1.5 and
7.1.2.
(Docs. #33-1, 34-1.)
These Affidavits, however, are
outside of the four corners of the Third Amended Complaint and
will not be considered when ruling on the motion to dismiss.

56

Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991), the court determined
that the Forest Service violated Section 9 of the ESA because it
permitted excessive timber removal in Texas forests whose trees
are home for red-cockaded woodpeckers.

Id. at 432-33.

In Strahan

v. Coxe, 127 F.3d 155 (1st Cir. 1997), the state’s licensing of
fishermen to use gillnets and lobster traps in certain areas was
done with an awareness that right whales could be caught in the
devices, and the evidence showed that over fifty percent of right
whales showed scars from previous encounters with the devices.
Id. at 165.

Based on this evidence, the court concluded that the

state’s licensing of gillnets and lobster pots resulted in a take
of right whales in violation of the ESA.

Id.

The regulations or

licensing in both of these cases concerned actions that directly
killed or injured species or eliminated their habitat.
Not all regulatory action has such direct consequences.

In

Loggerhead Turtle v. Cnty. Council of Volusia Cnty., 92 F. Supp.
2d 1296 (M.D. Fla. 2000), the plaintiffs claimed that the County
was in violation of Section 9 of the ESA “because the County’s
affirmative

acts

of

adopting

and

enforcing

an

ineffective

artificial beachfront lighting ordinance [was] a proximate cause
of the harm to and mortality of sea turtles.”

Id. at 1306.

The

court rejected the plaintiffs’ claim because the ordinance at issue
did not violate the ESA, permit otherwise unlawful activity, or
“license an act in expressly a manner likely to result in an ESA

57

violation.”

Id. at 1307.

In rejecting the plaintiffs’ claim, the

court noted that “Volusia County cannot be made to assume liability
for the act of its private citizens merely because it has chosen
to adopt regulations to ameliorate sea turtle takings.”

Id. at

1308.
Unlike the regulations in Yeutter and Strahan, CCME Policies
6.1.5 and 7.1.2 do not authorize conduct that results in a take of
the

Florida

panther

or

RCW.

Collier

County’s

land

clearing

authorizations and single family home building permits simply
authorize the clearing and building if the landowner otherwise
complies with federal law.

In order for a take to occur, a third

party must violate Collier County’s regulations and the ESA.
Defendants cannot be held liable for such conduct.

As previously

stated, plaintiffs essentially want Collier County to enforce the
ESA by withholding its approvals until the ESA requirements have
been

satisfied.

Enforcement

of

the

ESA,

however,

is

the

responsibility of federal agencies, not local governments.

The

Court finds that defendants have not violated the ESA by adopting
and implementing CCME Policies 6.1.5 and 7.1.2.

Accordingly,

Counts IV and V are dismissed with prejudice, or alternatively,
summary judgment is entered in favor of defendants on these counts.

58

(5)

Count VI:
(a)

Wilson Boulevard Extension Taking Claim

Dismissal for Failure to State a Claim

Defendants seek to dismiss Count VI because there is no
evidence that the County will construct the Wilson Boulevard
extension in a manner which is not in compliance with the ESA.
Defendants assert that there is no allegation that the time for
the County to apply for such permits has arisen, and absent a
current obligation to file an HCP and ITP there can be no cause of
action.

(Doc. #85, pp. 15.)

The Court disagrees.

Count VI

plausibly alleges that the County was obligated to comply with the
ESA now with regard to the Wilson Boulevard extension.
(b)

Dismissal Based on Failure to Join Indispensable
Parties and Legislative Immunity

Defendants raise the same arguments regarding failure to join
indispensable parties and legislative immunity for the County
Commissioners in their official capacities for Count VI as they
did regarding the previous Counts, and plaintiffs have made the
same responses.

The Court’s findings are the same as its findings

in regard to Count III.
to

dismiss

Count

VI

Accordingly, the portions of the motions
raising

defenses

of

failure

to

indispensable parties and legislative immunity are denied.

join
The

Court finds, as it did in Count III, that it is not at all clear
that

such

“regulatory

actions”

Commissioners’ legislative function.

59

alleged

fall

within

the

(c)

Summary Judgment

The issue in Count VI is whether the time has come for Collier
County to apply for a FWS ESA § 10 HCP and ITP.

Plaintiffs argue

that it is past time, while defendants argue it is not yet reached
that stage.

Plaintiffs argue that “Collier County’s foreseeable

future regulatory actions to extend Wilson Boulevard in NBM without
obtaining a FWS ESA §10 HCP and ITP is a take of Florida panthers
and

RCWs

in

violation

of

ESA

§9.”

(Doc.

#87,

pp.

24-25.)

Plaintiffs also allege that the regulatory actions are severing
Florida panther breeding habitat and passing through occupied RCW
cavity trees and foraging habitat.

(Id.)

Defendants represent

that the County has every intention of obtaining all necessary
permits and approvals prior to initiating the Wilson Boulevard
extension, including applying for a FWS ESA § 10 HCP and ITP. (Doc.
#89, pp. 17-18; Doc. #90, pp. 23-24.)
Both parties agree that Collier County must obtain a FWS ESA
§ 10 HCP and ITP prior to extending the Wilson Boulevard, at least
in regard to its currently proposed route.

Plaintiffs allege,

however, that the County’s actions taken thus far require it to
obtain a FWS ESA § 10 HCP and ITP.
County

has

taken

the

following

Plaintiffs allege that the
“regulatory

actions”

toward

implementing the Wilson Boulevard extension: adoption of a Long
Range Transportation Plan that depicts the extension of Wilson
Boulevard through Florida panther and RCW habitat in NBM; enactment

60

of the Collier Plan NBM Overlay map which depicts the Wilson
Boulevard

extension

through

occupied

Florida

panther

and

RCW

habitat in central NBM; enactment of Collier Plan FLUE stating
that the Wilson Boulevard extension should be provided through
Section 33, Range 27 East and that lands required for the extension
will be dedicated to the County at the time of rezoning; Collier
County’s official identification and public notice of the Wilson
Boulevard extension; advanced right-of-way dedications, Developer
Contribution

Agreements,

zoning

approvals,

and

reservation

agreements to obtain the right-of-way for the Wilson Boulevard
extension

through

Florida

panther

and

RCW

habitat;

Collier

County’s August 31, 2007 Developer Agreement with Florida Rock
Industries, Inc. for the design and construction of phase I of the
extension; Collier County Board of Commissioners’ approval of the
purchase of 302 acres in NBM for accommodating the future Wilson
Boulevard extension; and negotiations with the owners of HHH Ranch
for right-of-way for the extension. (Doc. #81, ¶ 191.)
The Court finds that these while these “regulatory actions”
by the County establish at least the beginnings of its plan for
the future extension of the Wilson Boulevard, plaintiffs have not
shown that these actions result in a “take” in violation of the
ESA.

To the contrary, the County recognizes that it must in fact

obtain the necessary permits and approvals prior to initiating
construction to extend the Wilson Boulevard.

61

The Court finds that

defendants have not violated the ESA by their “regulatory actions”
thus far in the process of the proposed extension of the Wilson
Boulevard.

Accordingly, the Court denies defendants’ motion to

dismiss Count VI; grants defendants’ motion for summary judgment
as to Count VI; and denies plaintiffs’ motion for summary judgment
as to Count VI.
Accordingly, it is now
ORDERED:
1.

Plaintiffs’

Third

Request

for

Judicial

Notice

of

Adjudicative Facts (Doc. #94) is GRANTED to the extent set forth
herein.
2.

Defendants’ Motion to Dismiss (Doc. #85) is GRANTED in

part and DENIED in part. Counts I and II are dismissed with
prejudice as to the individual county commissioners; Counts IV and
V are dismissed with prejudice (alternatively to the grant of
summary judgment); the motion is otherwise DENIED.
3.

Plaintiffs’ Motion for Summary Judgment (Doc. #87) is

DENIED.
4.

Defendants’ Cross-Motion for Summary Judgment (Doc. #90)

is GRANTED as to all counts since there is neither pre-emption by
the Endangered Species Act nor a “take” or attempted take under
the Endangered Species Act.

62

5.

The Clerk shall enter judgment accordingly, terminate

all pending motions and deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this __8th__ day of
April, 2016.

Copies:
Counsel of record

63