Sierra Club et al v. Von Kolnitz et al

Filing 36

ORDER denying 7 Motion to Dismiss; granting 16 Motion for Preliminary Injunction. Signed by Honorable David C Norton on August 14, 2017.(span, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
SIERRA CLUB AND SOUTH CAROLINA )
WILDLIFE FEDERATION,
)
)
Plaintiffs,
)
v.
)
)
ELIZABETH VON KOLNITZ, in her
)
official capacity as Chief of the Office of
)
Coastal Resource Management of South
)
Carolina Department of Health and
)
Environmental control, CATHERINE
)
HEIGEL, in her official capacity as the
)
Director of South Carolina Department of )
Health and Environmental Control, and
)
SOUTH CAROLINA DEPARTMENT OF )
HEALTH AND ENVIRONMENTAL
)
CONTROL,
)
)
Defendants.
)
)

No. 2:16-cv-03815-DCN

ORDER

This matter is before the court on plaintiffs Sierra Club and South Carolina
Wildlife Federation’s (collectively, “plaintiffs”) motion for a preliminary injunction
pursuant to Rule 65 of the Federal Rules of Civil Procedure as well as defendants
Elizabeth Von Kolnitz, in her official capacity as Chief of the Office of Coastal Resource
Management of the South Carolina Department of Health and Environmental Control
(“OCRM”), Catherine Heigel, 1 in her official capacity as the Director of the South
Carolina Department of Health and Environmental Control, and the South Carolina
Department of Health and Environmental Control’s (collectively, “DHEC”) motion to

1

Director Heigel has resigned from DHEC effective August 4, 2017. David E.
Wilson is the Acting Director of DHEC.
1

dismiss. For the reasons set forth below, the court denies DHEC’s motion to dismiss and
grants plaintiffs’ motion for preliminary injunction.

I. BACKGROUND
This case arises out of the use of wave dissipation devices (“sea walls”) in Isle of
Palms and Harbor Island, South Carolina. Under the South Carolina Coastal Zone
Management Act (“CZMA”), the construction of any new erosion control structures or
devices on the beach is prohibited. S.C. Code § 48-39290(B)(2)(a). The sea walls were
authorized by the South Carolina General Assembly under the budget proviso to the
2014–15 and 2015–16 budgets, and fall under the “research activity” exception to the
CZMA which allows for research activity to be conducted on beaches without first
obtaining a DHEC permit. S.C. Code § 48-39290(D)(2). The sea walls, which consist of
vertical plastic pylons drilled into the sand and horizontal plastic bars stacked within the
pylons, were installed on an experimental basis under the auspices of the budget proviso
and authorized to remain in place for a period of one year. DHEC installed the temporary
sea walls on certain beaches in Harbor Island and Isle of Palms in 2015, as part of a
research project conducted by the Citadel.
Two public interest environmental organizations, the South Carolina Wildlife
Federation and the Sierra Club, filed this action challenging the sea walls as a violation of
the Endangered Species Act, 16 U.S.C. §§ 1531, et seq. (“ESA”), alleging that the sea
walls interfered with the breeding patterns of various species of sea turtles that are listed
as endangered under the ESA. South Carolina is home to the following marine turtle
species: the Loggerhead sea turtle (caretta caretta), the Kemp’s Ridleys sea turtle
2

(Lepidochelys kempis); the Green sea turtle (Chelonia mydas); and the Leatherback sea
turtle (Dermochelys coriacea) (collectively, “sea turtles”). All of these species of turtles
are listed as either endangered or threatened under the ESA.
An “endangered species” is one that is “in danger of extinction throughout all or a
significant portion of its range.” 16 U.S.C. § 1532(6). A “threatened species” is one that
is “likely to become an endangered species within the foreseeable future throughout all or
a significant portion of its range.” 16 U .S.C. § 1532(20). Under the ESA, it is unlawful
for any “person” to “take” endangered or threatened species. 16 U.S.C. § 1538(a)(1)(B)
(the “take” prohibition); 50 C.F.R. § 17.31(a). It is equally unlawful for any “person” “to
attempt to commit, solicit another to commit, or cause to be committed” a “take.” 16
U.S.C. § 1538(g). Defined broadly, “take” means “to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect[.]” 16 U.S.C. § 1532(19). “Harm” is defined in the
regulations as “an act which actually kills or injures wildlife” and includes “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. “Harass” is defined as “an intentional or negligent act or
omission which creates the likelihood of injury to wildlife by annoying it to such an
extent as to significantly disrupt normal behavioral patterns which include, but are not
limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. The ESA defines
“person” to include “an individual, corporation . . . any officer, employee, agent,
department, or instrumentality of the Federal Government, of any State, municipality, or
political subdivision of a State,” and “any State, municipality, or political subdivision of a
State.” 16 U.S.C. § 1532(13).
3

Plaintiffs argue that the sea walls interfere with sea turtle nesting activities,
causing a “take” of sea turtles under the ESA. Sea turtles spend much of their lives in the
ocean, with the exception of nesting—when female sea turtles crawl out of the ocean and
onto the beach to dig a nest and lay eggs—and hatching—when sea turtle hatchlings
crawl back into the sea. The sea turtles in question nest along sections of beaches in Isle
of Palms and Harbor Island, and plaintiffs allege that the sea walls interfere with their
nesting season because the sea turtles are physically blocked by the sea walls as they
attempt to crawl onto the beaches to nest, a practice known as “false crawls.” The sea
turtle nesting season in South Carolina is from the beginning of May through late August.
On December 6, 2016, plaintiffs filed this suit, seeking an injunction requiring the
removal of existing sea walls and prohibiting DHEC from authorizing the placement of
sea walls in the future, declaratory relief that the sea walls violate the ESA and that any
devices that block turtle access to the dry sand beach must be built under an incidental
take permit from the United States Fish and Wildlife Service (“FWS”), as well as fees
and costs. On January 30, 2017, DHEC filed a motion to dismiss. Plaintiffs responded
on February 23, 2017. DHEC replied on March 16, 2017. On July 21, 2017, plaintiffs
filed a motion for preliminary injunction requiring the immediate removal of all
temporary sea walls from the two beaches where they have been constructed and for the
sea walls to remain fully removed from the beach during all periods of potential sea turtle
nesting that occur during the pendency of this case. DHEC filed a response to the motion
for preliminary injunction on August 4, 2017. Plaintiffs replied on August 9, 2017. The
court held a hearing on these motions on August 11, 2017. The motion to dismiss and the

4

motion for preliminary injunction have been fully briefed and are now ripe for the court’s
review.
II. STANDARD
A.

Motion to Dismiss

A Rule 12(b)(6) motion for failure to state a claim upon which relief can be
granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) []
does not resolve contests surrounding the facts, the merits of a claim, or the applicability
of defenses.”). To be legally sufficient, a pleading 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).
A Rule 12(b)(6) motion should not be granted unless it appears certain that the
plaintiff can prove no set of facts that would support his claim and would entitle him to
relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When
considering a Rule 12(b)(6) motion, the court should accept as true all well-pleaded
allegations and should view the complaint in a light most favorable to the plaintiff.
Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
5

B.

Preliminary Injunction

“The purpose of a preliminary injunction is merely to preserve the relative
positions of the parties until a trial on the merits can be held.” United States v. South
Carolina, 840 F. Supp. 2d 898, 914 (D.S.C. 2011) (quoting Univ. of Tex. v. Camenisch,
451 U.S. 390, 395 (1981)). “A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of the equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008). As the Supreme Court has noted, a preliminary injunction is “an extraordinary
remedy that may only be awarded upon a clear showing that the plaintiff is entitled to
such relief.” Id. at 22.
III. DISCUSSION
This matter is before the court on two motions. DHEC seek to dismiss the case,
citing Burford abstention. Plaintiffs seeks preliminary injunctive relief pursuant to
Federal Rule of Civil Procedure 65 to require DHEC to remove the sea walls. The court
addresses the motion to dismiss first, and then turns to plaintiffs’ motion for preliminary
injunction. 2

2

Five parties—Ocean Club Horizontal Property Regime, Carole Slotchiver,
Kathryn V. Balazs, Paul Conway, and Seascape Villas Horizontal Property Regime—
filed motions to intervene on August 9, 2017. Plaintiffs have not yet had the opportunity
to respond. The court will issue an order on these motions to intervene once the matter
has been fully briefed.
6

A.

Motion to Dismiss

DHEC seeks to dismiss the case under the Burford abstention doctrine, arguing
that the court should dismiss the case in light of the pending state administrative actions
in this matter. In the alternative, DHEC seeks a stay of the federal case until the state
matters conclude. This motion is denied in full.
In Burford v. Sun Oil Co., 319 U.S. 315 (1943), the Supreme Court held that a
federal court sitting in diversity jurisdiction may abstain from hearing a case where
(1) the state courts likely have greater expertise in a particularly complex and unclear
area of state law which is of special significance to the state, (2) there is a comprehensive
state administrative or regulatory procedure, and (3) the federal issues cannot be decided
without delving into state law. Burford abstention is permissible when federal
adjudication would “unduly intrude” upon “complex state administrative processes”
because either: (1) “there are difficult questions of state law whose importance transcends
the result in the case then at bar”; or (2) federal review would disrupt “state efforts to
establish a coherent policy with respect to a matter of substantial public concern.” New
Orleans Pub. Serv. Inc. v. Council of New Orleans, 491 U.S. 350, 361–63 (1989).
The court finds DHEC’s abstention argument unavailing. Federal courts usually
utilize Burford abstention when they sit in diversity jurisdiction to hear challenges to
state agency proceedings. For example, in Browning-Ferris, Inc. v. Baltimore Cty., Md.,
774 F.2d 77 (4th Cir. 1985), the Fourth Circuit found that Burford abstention was
appropriate in a challenge to a denial by state and county authorities of permits necessary
to operate a sanitary landfill. However, this case is before the court on a discrete federal
question—if DHEC’s authorization of the sea walls leads to the “take” of the sea turtles
7

under the ESA. In rendering a decision on this matter, the court does not engage in
complex issues of state law or weigh state policy decisions. It is undisputed that DHEC
has not obtained an incidental take permit from FWS under 16 U.S.C. § 1539(a)(1)(B),
which states that FWS “may permit, under such terms and conditions as [it] shall
prescribe . . . any taking otherwise prohibited by section 1538(a)(1)(B) of [the ESA] if
such taking is incidental to, and not the purpose of, the carrying out of an otherwise
lawful activity.” Therefore, if the court finds that the sea walls lead to a “take” of the sea
turtles under the ESA, then DHEC has violated the ESA.
Certainly, protecting coastal real estate from sea level rise and extreme climate
events such as hurricanes is an important state policy. But abstention is not required
“merely because resolution of a federal question may result in the overturning of a state
policy.” Zablocki v. Redhail, 434 U.S. 374, 380 n. 5 (1978). DHEC’s attempt to frame
this matter as a land use question, an area of traditional local control, falls short—the
wording of the ESA makes clear that the protection of federally listed species is a
national concern. There is a reason why the ESA is often referred to as the statutory “pit
bull” of environmental laws. See Zdravka Tzankova et. al., Can the ESA Address the
Threats of Atmospheric Nitrogen Deposition? Insights from the Case of the Bay
Checkerspot Butterfly, 35 Harv. Envtl. L. Rev. 433, 443 (2011) (“Indeed, hardly a
discussion of the ESA goes by without mention of its status as the ‘pit bull of
environmental laws’”). The Supreme Court halted the construction of a nearly complete,
immense dam because it would have led to the annihilation of a three-inch fish called the
snail darter in Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 (1978), stating that
“the plain intent of Congress in enacting this statute was to halt and reverse the trend
8

toward species extinction, whatever the cost.” If these temporary sea walls do indeed
lead to a “take” of the ESA-listed sea turtles, then the expense of removing the walls is
encompassed within the phrase “whatever the cost.”
DHEC argues that the sea walls are permissible because any concerns about
federal endangered species were already taken into account in this decision-making
process by the relevant state and local agencies that authorized the sea walls. Not so.
DHEC rests its abstention argument on Sierra Club v. City of San Antonio, 112 F.3d 789
(5th Cir. 1997), where the court found that Burford abstention precluded a federal suit
challenging water withdrawals from an aquifer as violating the ESA by leading to the
take of the endangered fountain darter, in part, because there was a comprehensive
regulatory scheme in place to regulate the aquifer. However, the relevant statute in Sierra
Club explicitly addressed the preservation of endangered species and required the
governing local agency of the aquifer to “protect aquatic and wildlife habitat” and to
“protect species that are designated as threatened or endangered under applicable federal
or state law.” Id. at 794 (emphasis added). In contrast, here, the sea walls were
authorized under the 2014–15 and 2015–16 budget provisos that provides for the
construction of erosion control structures on the beach under the narrow “research
activity” exemption of the CZMA, S.C. Code § 48-39-10. The budget proviso states only
that any sea walls which cause “material harm to the flora, fauna, physical or aesthetic
resources” “may” be removed. ECF No. 16, Ex. C, Budget Proviso. There is no specific

9

reference in the budget proviso to “species that are designated as threatened or
endangered” under federal law, making it distinguishable from the statute in Sierra Club. 3
Now, it would not be unprecedented for the court to dismiss an ESA action under
the Burford abstention doctrine. Indeed, there have been law review articles written
about this exact dilemma. See Deborah A. Clarke, Sierra Club v. City of San Antonio:
Stretching the Bounds of the Burford Abstention Doctrine, 11 Tul. Envtl. L.J. 117 (1997).
But under the circumstances of this particular case, the court refuses to do so. Abstention
is not a “license for free-form ad hoc judicial balancing of the totality of state and federal
interests in a case.” Martin v. Stewart, 499 F.3d 360, 364 (4th Cir. 2007). This “ad hoc”
balancing between state and federal interests is exactly what DHEC is urging the court to
do here. The district court is under an “unflagging obligation to exercise its jurisdiction.”
In re Mercury Constr. Corp., 656 F.2d 933, 943 (4th Cir. 1981). In a case such as this,
which arises under a federal environmental statute and can be fully resolved by applying
federal law, this obligation is especially strong.
B.

Preliminary Injunction

Having declined to dismiss the case, the court now turns to plaintiffs’ motion for
preliminary injunction, wherein plaintiffs ask the court to enter an injunction requiring
the immediate removal of all temporary sea walls from the two beaches where they have

3

And indeed, it is not difficult to imagine a hypothetical to demonstrate how the
wording of the budget proviso does not, in fact, incorporate the requirements of the
ESA—the use of a sea wall could lead to the destruction of 20% of the sea turtle nests on
a beach. Since 80% of the sea turtle nests on the beach remained, a case could be made
that this does not qualify as “material harm” to the sea turtles under the budget proviso.
However, under the ESA the destruction of even 1% of the sea turtle nests on a beach is
as a “take.” In other words, the sea walls could lead to an immaterial harm to flora and
fauna, comporting to the requirements in the budget proviso, yet violate the ESA.
10

been constructed and for the sea walls to remain fully removed from the beach during all
periods of potential sea turtle nesting that occur during the pendency of this case. A party
seeking a preliminary injunction must demonstrate that (1) it is likely to succeed on the
merits, (2) it is likely to suffer irreparable harm in absence of the injunction, (3) the
balance of hardships tips in its favor, and (4) the injunction is in the public interest.
Winter, 555 U.S. at 20. “To obtain a preliminary injunction under the Winter test, a
movant must make a ‘clear showing’ of [the] four requirements.” Alkebulanyahh v.
Nettles, No. 10-2976, 2011 WL 2728453, at *3 (D.S.C. July 13, 2011). Of these factors,
there is a particular focus on the first, that the party moving for an injunction must be able
to succeed on the merits. Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th
Cir. 2011) (“Winter thus requires that a party seeking a preliminary injunction . . . must
clearly show that it is likely to succeed on the merits.” (internal quotation omitted)). The
court considers below whether plaintiffs have satisfied each of the four Winter factors. 4
It finds that they have. 5

4

DHEC argues that this preliminary injunction should not be granted because
certain necessary parties, including the Citadel and the property owners who have houses
behind the sea walls, have not been joined to the action. ECF No. 20 at 6–8. If DHEC
believed that these parties must be joined, it could have moved to have those parties
joined under Rule 19 or to dismiss the case on the ground that those entities cannot be
joined. In the seven months since the complaint was filed, DHEC has done neither of
those things.
5
Practically speaking, a mandatory injunction is a rare remedy. But the court
would point out that these walls are by their very design temporary structures that have a
research purpose. Indeed, under the CZMA, the construction of any new erosion control
structures or devices on the beach are prohibited. S.C. Code § 48-39290(B)(2)(a). These
sea walls were created as temporary erosion control structures through a budget proviso
passed by the South Carolina General Assembly, and were installed on an experimental
basis. If anything, this mandatory injunction simply serves as a judicially-mandated
hiatus to that research activity.
11

1.

Likelihood of Success on Merits

The court first finds that plaintiffs are likely to succeed on the merits of their ESA
take claim. “Although [the likelihood-of-success] inquiry requires plaintiffs . . . to make
a clear showing that they are likely to succeed at trial, plaintiffs need not show a certainty
of success.” Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013) (internal citations
omitted). However, it is not enough for a plaintiff to provide only sufficient factual
allegations to survive a Rule 12(b)(6) motion to dismiss. Torres Adv. Enterp. Solutions
LLC v. Mid-Atl. Professionals, Inc., 2013 WL 531215, at *3 (D. Md. Feb. 8, 2013)
(internal citations omitted).
The ESA defines the term “take” to include “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). In Babbitt v. Sweet Home Chapter of Communities for a Great
Oregon, 515 U.S. 687, 704 (1995) (internal quotations omitted), the Supreme Court held:
Congress intended “take” to apply broadly . . . The Senate Report stressed
that “[t]ake is defined . . . in the broadest possible manner to include every
conceivable way in which a person can take or attempt to take any fish or
wildlife.” The House Report stated that “the broadest possible terms” were
used to define restrictions on takings.
The term “harm,” as used in the definition of “take,” is “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 (emphasis added). A government official violates the ESA’s “take”
prohibition when that official authorizes someone to exact a taking of an
endangered species, which, but for the authorization, could not have taken place.
12

Seattle Audubon v. Sutherland, 2007 WL 1300964, at *8 (W.D. Wash. May 1,
2007); see Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir. 1997) (holding that the
ESA prevents state officials from bringing about the acts of another party that
leads to a taking). This is the framework that plaintiffs ask the court to apply
here—that DHEC authorized the sea walls, even though they did not construct the
walls themselves. Without DHEC’s authorization of the sea walls, the walls
would not have been constructed and the problem of sea turtles false crawls
would not be occurring. All this is to say, if plaintiffs can prove that DHEC’s
actions in authorizing the sea walls led to a “significant impairment” in the sea
turtles’ breeding patterns, then they have demonstrated a likelihood of success in
their ESA “take” claim. This is the standard that guides the court’s analysis in
this first factor of the preliminary injunction test.
Plaintiffs point to DHEC’s own documents, where DHEC staff scientists
have noted numerous occasions of the sea turtles attempting to nest on sections of
the beach and being blocked by sea walls, to argue that the sea walls lead to a take
of the sea turtles. DHEC has records of failed nesting attempts. 6 ECF No. 16,

6

The DHEC staff report does note that there is no evidence that the false crawls at
locations with sea walls results in an actual decrease in the total number of sea turtle nests
on Harbor Island or Isle of Palms. ECF No. 16, Ex. G, Final DHEC Wave Dissipation
System Report at 21. Instead, the DHEC report states that “[i]t can be debated whether
. . . the turtle would not have laid her eggs regardless of the presence of the [sea walls], or
if the [sea walls] interrupted a nesting attempt.” Id. at 22. This statement in the DHEC
report that the sea turtles would have engaged in false crawls even on portions of the
beach without the sea walls is somewhat contradictory to the statement in the report that
“the [sea walls] [do] present a potential harm associated with continued nesting
attempts.” Id. at 32. It certainly conflicts with plaintiffs’ sea turtle expert Sally Murphy,
who states that “with a high degree of scientific certainty [] the [sea walls] are likely to
13

Ex. G, Final DHEC Wave Dissipation System Report at 21 (“There have been
false crawls caused by sea turtles encountering the [sea walls.] Evaluation of
false crawl data along Harbor Island and [Isle of Palms] indicates that there was a
higher rate of false crawls along the segments of shoreline with the [sea walls]
than the remainder of the island.”). Indeed, the DHEC section manager explained
to the DHEC Board that “the [DHEC staff] stands by our recommendation” that
the sea walls negatively affect sea turtles by harming the “continued nesting
attempts” of female sea turtles, and that this finding was “confirmed by U.S. Fish
and Wildlife Letter [that was] submitted February 9th.” ECF No. 16, Ex. L,
DHEC Board Hr’g Tr. at 17. In this letter, the FWS “determined that this is a
take” because the sea walls “disrupt[ed] normal sea turtle nesting behavior.” Id.
at 18. Other agencies agree with this assessment. In an email, the Coastal
Environmental Coordinator at the South Carolina Department of Natural
Resources (“DNR”) stated that “[the sea walls] pose a threat to nesting turtles and
should not be allowed except for emergency situations where no nesting occurs,”
and reiterated that, “[a]s recommended in our original comments, we believe this
permit . . . should be conditioned to require the removal of these structures when
adverse impacts to turtles are documented.” ECF No. 16, Ex. K, DNR False
Crawl Photos. The FWS, the federal agency charged with enforcing the ESA,
also agrees that the sea walls are blocking sea turtles from nesting. In emails, the
deputy field supervisor of the South Carolina Field Office of the FWS sent photos

cause additional false crawls going forward, both in this nesting season and in future
nesting seasons.” ECF No. 16, Ex. I, Murphy Declaration ¶ 17 (emphasis added).
14

of false crawls that have occurred on multiple occasions during the nesting season
with the message “[s]ea turtle blocked by the [sea walls] on Harbor Island.” ECF
No. 16, Ex. K, DNR False Crawl Photos.
The court also takes note of the opinions of plaintiffs’ sea turtle expert, Sally
Murphy (“Murphy”), who was the lead sea turtle scientist at DNR for 30 years and has
authored dozens of peer-reviewed journal articles on sea turtles. In her affidavit, Murphy
testifies that:
false crawls use up previous energy needed for the production of the next
clutch of eggs. The loss of energy from false crawl(s) can result in a female
sea turtle producing fewer clutches of eggs than she otherwise would have.
This lowers the reproductive potential by reducing the number of clutches
laid in a season.
ECF No. 16, Ex. I, Murphy Declaration ¶ 8. According to Murphy, physical obstacles
such as the sea walls lead to harm in several ways. For example, the female sea turtle
may have to nest in less than optimal areas that will be “inundated by the tide,” or deposit
eggs in the ocean, which leads to a survival outlook of the baby sea turtles that is “slim to
none.” 7 Id. ¶ 10. Murphy goes on to state “with a high degree of scientific certainly that
false crawls are harmful both to the energy reserves of the female sea turtles and to their
reproductive productivity” in general. Id. ¶ 10. Even assuming, as the DHEC final report
states, that the false crawls do not necessarily lead to a decrease in the total number of sea

7

On this particular point of whether the sea walls are leading to sea turtles nesting
in areas with little chance for successful hatching, Murphy and the DHEC final report are
in agreement. The DHEC final report states that it is “debate[able]” whether the sea
turtle “would not have laid her eggs regardless of the presence of the [sea walls], or if the
[sea walls] interrupted a nesting attempt,” but ultimately concedes that on sections of the
beach contained sea walls, “[DHEC] has photographic evidence of sea turtle nesting in
less than optimal areas, including at the base of erosional scarps.” ECF No. 16, Ex. G,
Final DHEC Wave Dissipation System Report at 22.
15

turtle nests on areas of the beach around sea walls, if the increased incidence of false
crawls is lowering the reproductive potential of female sea turtles, then the court is
convinced that plaintiffs have met their burden that the sea walls lead to a “significant
impairment” in the sea turtles’ breeding patterns. This is enough to find that there has
been a “take” under the ESA. Plaintiffs have established this first factor.
2.

Irreparable Harm

In the next element of the preliminary injunction analysis, plaintiffs must make a
clear showing they will be irreparably harmed in the absence of preliminary injunctive
relief. See Winter, 555 U.S. at 20. Generally, courts have found that there is a strong
showing of irreparable injury in cases involving the ESA. See Cottonwood Envtl. Law
Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1091 (9th Cir. 2015) (“In light of the stated
purposes of the ESA in conserving endangered and threatened species and the ecosystems
that support them, establishing irreparable injury should not be an onerous task for
plaintiffs.”), cert. denied, 137 S. Ct. 293 (2016). That being said, courts are not
mechanically obligated to grant an injunction for every violation of the ESA. Tennessee
Valley Authority, 437 U.S. at 173.
On June 8, 2017, the DHEC Board authorized the sea walls for an additional year.
ECF No. 20, Ex. C, June 8, 2017 DHEC Board Decision. Plaintiffs have made a strong
case that, should the sea walls remain, the sea turtles will return to the same beaches with
sea walls to nest, and that the false crawls will continue. See ECF No. 16, Ex. I, Murphy
Declaration ¶ 17 ( “I can say to a high degree of scientific certainly that the [sea walls]
are likely to cause additional false crawls going forward, both in this nesting season and
in future nesting seasons.”). DHEC argues that after the DHEC Board’s most recent
16

reauthorization of the sea walls, the sea walls are now being maintained in a way that
does not negatively impact sea turtle nesting. In support of this proposition, DHEC
discusses an incident that occurred on June 21, 2017, when DHEC was notified of the
existence of a sea turtle nest behind a section of a sea wall on Harbor Island. After being
notified of the nest location, DHEC directed the Citadel, which is managing the pilot
study of the sea walls, to remove the horizontal panels of the sea wall so that the sea
turtle hatchlings could reach the ocean. ECF No. 20 at 4. DHEC presents no evidence
that it has been monitoring the location of every sea turtle nest or that it has moved the
horizontal panels of the sea walls for each of those sea turtle nests that are located behind
the sea wall.
However, as described above in section III.C.2, the plaintiffs point to the
incidence rate of the false crawls themselves as a “substantial impairment” to the sea
turtle’s breeding habits, citing the decreased fertility in female sea turtles as a result of the
false crawls. Therefore, even if DHEC were able to locate every sea turtle nest that is
located behind a sea wall and direct the Citadel to remove the horizontal panels of the sea
wall—a proposition the court finds doubtful—what is leading to a “substantial
interference” with sea turtle breeding patterns is the incidence rate of false crawls on
those areas of the beach that contain sea walls. If anything, given that the DHEC Board
has now authorized the sea walls for an additional year, DHEC’s discussion of the June
21, 2017 incident highlights just how likely it is that the false crawls—and thus the “take”
under the ESA—will continue unless the sea walls are taken down. The court is satisfied
that plaintiffs have established a likelihood of irreparable harm by proving that future
similar takings will continue if the status quo is maintained.
17

3.

Balance of Equities

Next, plaintiffs must make a clear showing that the balance of the equities tips in
their favor. In considering the balance of the equities between the parties, traditionally
the court “must balance the competing claims of injury and must consider the effect on
each party of the granting or withholding of the relief requested.” Winter, 555 U.S. at 24
(quoting Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987)).
DHEC argues that studies are “ongoing” to determine if the sea walls are serving
their intended purpose of addressing coastal erosion. Based on DHEC’s own reports, the
court is skeptical that the sea walls are very effective at addressing erosion. For example,
due to a “landward movement” of the scarp line, which refers to the slope on the beach
due to wave action, homeowners at all of the sites where sea walls were installed
requested emergency orders for sandbags to stabilize the area on multiple occasions.
ECF No. 16, Ex. B, DHEC Staff Recommendation. Additionally, the sea walls led to
“persistent scour,” or local trenching at all sites, and it was only after the panels were
removed that the beach profile was restored. Id. Finally, the sea walls “blocked the
natural movement of sand up the beach,” leading to a decrease in the sand volume on the
landward side of the sea walls. Id. The final conclusions from DHEC staff were that: (1)
the sea walls “do not address an erosional issue”; (2) the sea walls have “negative
impacts to fauna, flora, physical or aesthetic resources, beach access and adjacent
properties”; (3) the sea walls “do not satisfy all the criteria of the Budget Proviso.” Id.
Indeed, the final recommendation of DHEC staff to the DHEC board was that the sea
walls not be approved for continued use and that the existing sea walls be removed from

18

the beach. Id. On the other side of this scale is the Congressional intent that endangered
species “be afforded the highest of priorities.” TVA, 437 U.S. at 174.
If these sea walls remain, endangered sea turtles will continue to false crawl. In
the balance between sea walls—that are by their very design temporary—and the ESA,
which was enacted “not merely to forestall the extinction of species [] but to allow a
species to recover to the point where it may be delisted,” Gifford Pinchot Task Force v.
United States FWS, 378 F.3d 1059, 1070 (9th Cir. 2004) (emphasis added), the ESA
prevails. The court finds that plaintiffs have established this factor. 8
4.

Public Interest

Finally, plaintiffs must make a clear showing that an injunction is in the public
interest. The Supreme Court has admonished that “courts of equity should pay particular
regard for the public consequences in employing the extraordinary remedy of an
injunction.” Winter, 555 U.S. at 24. The court finds that plaintiffs have proven that it is
in the public interest for sea turtles to be able to nest, especially given the unique confines
on preliminary injunctions in ESA actions. Just last year, another court within this circuit
held that “[t]he equitable scales are always tipped in favor of the endangered or
threatened species, and the balance of hardships and the public interest tips heavily in

8

In analyzing the balance of equities factor, the court also finds it persuasive that
during the hearing, DHEC stated that: (1) under the budget proviso the sea walls were
designed to be removed within 72 hours; (2) the sea walls would take approximately 120
hours to remove; and (3) if needed could be reinstated in 120 hours. It does not appear to
the court that it is a particularly arduous task for DHEC to remove temporary structures
that were designed to be removed within 120 hours, so that the sea turtles may lay their
nests before the end of this year’s nesting season. The sea walls were designated by the
South Carolina General Assembly to be research structures and authorized by DHEC for
a one-year period. Certainly, it cannot be unforeseen that the sea walls would need to be
removed after the research study ended.
19

favor of protected species.” Red Wolf Coal v. United States Fish & Wildlife Serv., 210
F. Supp. 3d 796, 806 (E.D.N.C. 2016) (emphasis added) (internal quotations and citations
omitted).
Having determined that plaintiffs have proven each of the four Winter factors, the
court finds that the plaintiffs are entitled to preliminary injunctive relief. Accordingly, it
orders the immediate removal of all sea walls from Harbor Island and Isle of Palms, and
orders that these temporary sea walls remain removed during the sea turtle nesting period
while this actions proceeds.
IV. CONCLUSION
For the foregoing reasons, the court DENIES DHEC’s motion to dismiss and
GRANTS plaintiffs’ motion for a preliminary injunction.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
August 14, 2017
Charleston, South Carolina

20