Court Rejects ESA Challenge to County's Local Land Use Planning

On April 8, the United States District Court for the Middle District of Florida held that Collier County’s (County) land use planning regulations were complimentary, not contrary to the Endangered Species Act (ESA).  The court also held that the County's planned future roadway extension did not violate the ESA, because the roadway project was only in the initial planning stages and the County acknowledged that compliance with the ESA was required before any construction activities could take place. Florida Panthers v. Collier County, Case No. 2:13-cv-612 (M.D. Fla. Apr. 8, 2016).

Under Florida law, a county is required to develop a comprehensive land use plan to guide and control use and future development within the county.  This land use plan must be updated every decade.  In addition to a land use plan, a county must adopt local regulations to implement the comprehensive plan.  Pursuant to Florida law, Collier County adopted a comprehensive land use plan and land use regulations.

Collier County is home to two endangered species, the Florida panther (Puma concolor coryi) and red-cockaded woodpecker (Picoides borealis).  In 2013, the Florida Wildlife Federation and Collier County Audubon Society filed a lawsuit alleging that the County's written policies and regulations relating to the clearing of agricultural land and issuance of building permits for single family residences in certain designated areas, and planned future extension of a roadway violated section 6(f) and section 9 of the ESA.  Specifically, the lawsuit alleged that the County's policies and regulations were less protective than the ESA in violation of section 6(f), and that the policies, regulations, and roadway extension did or would result in a "take" in violation of section 9.

Section 6(f) of the ESA states that "[a]ny 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 [the ESA] or in any regulations which implements [the ESA] but not less restrictive than the prohibitions so defined."  16 U.S.C. § 1535(f).  The district court found that the County's policies and regulations did not run afoul of section 6(f), because they required a landowner to obtain all other federal and state agency permits prior to clearing agricultural land or constructing a single family residence, and therefore the policies and regulations were complimentary to and not less protective than the ESA.

The district court also found that the policies and regulations did not result in a "take" in violation of section 9, stating: "Collier County's land clearing authorization 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 he held liable for such conduct."

Finally, with respect to the planned road extension, the district court found that the plaintiffs failed to demonstrate that the preliminary planning actions resulted in a "take" in violation of the ESA.  In reaching this conclusion the court noted that the County acknowledged that before any construction activities could take place, the County would need to obtain all necessary federal permits and approvals, including those required under the ESA.

  • Benjamin Z. Rubin

    Ben Rubin is chair of Nossaman’s Environment & Land Use Group. Ben assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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