Loggerhead Turtle v. County Council of Volusia County, Florida

The loggerhead sea turtle (Caretta caretta ) and green sea turtle (Chelonia mydas ) with appellants Shirley Reynolds and Rita Alexander (collectively the Turtles) challenge the district court's dismissal of their case brought pursuant to the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544 (1994). They present: (1) an issue of first impression, whether the incidental take permit exception to the ESA's "take" prohibition applies to an activity performed as a purely mitigatory measure upon which the issuing agency conditions the permit; (2) an issue of standing, whether a governmental entity's regulatory control of minimum wildlife protection standards can cause redressable injury to protected wildlife in locations where non-party governmental entities possess supplemental authority to regulate and/or exclusively control enforcement; and (3) an issue of pleading amendment, whether another federally protected sea turtle should have been allowed to join the Turtles as a party. We reverse on all issues and remand for further proceedings.

In 1978, the United States Fish and Wildlife Service (Service) listed the loggerhead sea turtle as a threatened species and the green sea turtle as an endangered species. See 50 C.F.R. § 17.11(h) (1997).1 Adjoining the Atlantic Ocean for nearly forty miles in northeast Florida, Volusia County's beaches play host to both humans and sea turtles. From north-to-south, its beach communities include Ormond-by-the-Sea, Ormond Beach, Daytona Beach, Daytona Beach Shores, Wilbur-by-the-Sea, Town of Ponce Inlet, City of New Smyrna Beach and Bethune Beach.2 Female adult sea turtles come ashore in the spring, deposit eggs in the sand and return to the ocean. Months later, when sea turtle hatchlings break out of their shells at night, they instinctively crawl toward the brightest light on the horizon. On an undeveloped beach, the brightest light is the moon's reflection off the surf. On a developed beach, the brightest light can be an inland artificial source.

On June 8, 1995, the Turtles instituted this lawsuit in the United States District Court for the Middle District of Florida under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(A). Seeking declaratory, permanent injunctive and--in a separate, contemporaneously-filed motion--preliminary injunctive relief, the Turtles alleged that appellee County Council of Volusia County, Florida's (Volusia County) "refusal to ban beach driving during sea turtle nesting season and ban beachfront artificial light sources that adversely impact sea turtles" violates the ESA's "take" prohibition, 16 U.S.C. § 1538(a)(1)(B). The Turtles quoted excerpts from their federally-issued recovery plans that "[a]rtificial beachfront lighting from buildings, streetlights, dune crossovers, vehicles and other types of beachfront lighting have been documented in the disorientation (loss of bearings) and misorientation (incorrect orientation) of hatchling turtles" and that "nesting females avoided areas where beachfront lights were the most intense" or "abort[ ] nesting attempts at a greater frequency in lighted areas." (Quoting United States Fish & Wildlife Serv., Dep't of the Interior; Nat'l Marine Fisheries Serv., Dep't of Commerce, Recovery Plan for U.S. Population of Loggerhead Turtle (Caretta caretta ) (1991), at 6-7; United States Fish & Wildlife Serv., Dep't of the Interior; Nat'l Marine Fisheries Serv., Dep't of Commerce, Recovery Plan for U.S. Population of Atlantic Green Turtle (Chelonia mydas ) (1991), at 4-5.) As exhibits, the Turtles advanced reports of fatal "disorientations" and "misorientations," as well as "false crawls" (aborted nesting attempts) that volunteer "Turtle Patrol" members had witnessed throughout Volusia County.

Volusia County's initial response to the complaint was twofold. First, on July 12, 1995, it answered the complaint. Second, on July 16, 1995, it applied to the Service for an "interim" incidental take permit. See 16 U.S.C. § 1539(a). After a hearing, the district court granted in part the Turtles' motion for a preliminary injunction as to beach driving, but denied preliminary relief as to artificial beachfront lighting. See Loggerhead Turtle v. County Council of Volusia County, Fla., 896 F.Supp. 1170, 1178-83 (M.D.Fla.1995).3

In September 1995, the district court entered a pretrial order that: (1) set a deadline of November 1, 1995, for the parties to file motions to amend and add parties; (2) closed discovery on February 1, 1996; and (3) scheduled trial for April 1996. On October 27, 1995, the Turtles filed a motion for leave to amend their original complaint to add the leatherback sea turtle (Dermochelys coriacea)) as a party, attaching the proposed amended complaint and two exhibits to the motion. During the pendency of the Turtles' motion for leave to amend, Volusia County successfully moved to continue the trial until October 1996, citing the imminence of the Service's permit decision.

Prior to the close of discovery, Volusia County moved for partial summary judgment. The county argued that the Turtles lacked standing to assert claims for takes in non-party municipalities that regulate and enforce their own lighting restrictions. On July 9, 1996, the district court granted the motion, concluding that: (1) the Turtles failed to show any causal connection between Volusia County's regulatory acts and the alleged takes; and (2) the court lacked the power to redress the alleged injury without joinder of those municipalities as defendants.

In the same order, the district court denied the Turtles' motion for leave to amend, reasoning that: (1) the court lacked subject matter jurisdiction over the leatherback sea turtle since it was unable to locate a copy of the Turtles' notice of intent to sue letter that their motion referenced; (2) the Turtles unduly delayed in filing the motion; and (3) Volusia County would be prejudiced if the court extended the preliminary injunction to include the leatherback sea turtle whose nesting season starts earlier every spring.

After Volusia County obtained another trial continuance, the Service issued the county an incidental take permit on November 21, 1996. The next day, Volusia County moved the district court to dissolve the preliminary injunction and dismiss the Turtles' case, contending that the permit mooted further proceedings. Although conceding that the permit authorized incidental takes through beach driving, the Turtles contended that it did not authorize incidental takes through artificial beachfront lighting. The district court agreed with Volusia County and closed the case. This appeal follows.

We address three issues: (1) whether the district court erred in concluding that Volusia County's incidental take permit excepted it from liability for taking protected sea turtles through artificial beachfront lighting; (2) whether the district court erred in concluding that the Turtles lack standing to sue Volusia County for takes that occur in the non-party municipalities of Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach that have supplemental authority to regulate and/or independently enforce their own artificial beachfront lighting restrictions; and (3) whether the district court abused its discretion in denying the Turtles' motion for leave to amend their original complaint to include the leatherback sea turtle as a party. Our standard of review for the first two issues is de novo. See Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Engineers, 87 F.3d 1242, 1246 (11th Cir.1996) ("We review questions of law de novo [.]"); Engineering Contractors Ass'n of South Fla. v. Metropolitan Dade County, 122 F.3d 895, 903 (11th Cir.1997) ("[T]his Court reviews standing de novo."), cert. denied, --- U.S. ----, 118 S.Ct. 1186, --- L.Ed.2d ---- (1998); Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1404 (11th Cir.1994) ("A district court's decision to grant or deny leave to amend is reviewed for abuse of discretion."), cert. denied, 513 U.S. 1113, 115 S.Ct. 906, 130 L.Ed.2d 788 (1995).

As to the first issue, the Turtles contend that Volusia County's incidental take permit authorizes only incidental takes of sea turtles from beach driving, not from artificial beachfront lighting. The Turtles argue that to fall within the incidental take permit exception to the "take" prohibition, the Service's permission must be express and activity-specific. The Turtles also assert that the district court could not infer such permission from the Service's conditioning the permit on lighting-related mitigatory measures.

Volusia County responds that under the permit, it must survey every light source, study their impacts and implement methods to correct light sources that misorient sea turtles. Volusia County argues that given those extensive mitigatory requirements, the Service clearly contemplated that it be excepted from liability for any incidental takes that artificial beachfront lighting causes during the life of the permit.

With regard to the second issue, the Turtles contend that the court can fairly trace sea turtles' lighting-related "harm" in the non-party municipalities of Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach to Volusia County's regulatory acts. The Turtles claim that Volusia County exercises sufficient regulatory authority in imposing county-wide minimum artificial beachfront lighting restrictions and exempting Daytona Beach and Daytona Beach Shores from any such restrictions. Furthermore, the Turtles assert that the district court possesses the power to redress any and all lighting-related takes. To hold otherwise, the Turtles posit, would violate the accepted notion that both a person whose actions adversely affect a protected species and a governmental body that authorizes that person's actions can violate the ESA's "take" prohibition.

Focusing only on the municipalities of Daytona Beach and Daytona Beach Shores, Volusia County contends that takes in those locations are traceable only to those municipalities' independent regulatory and enforcement acts or omissions. According to Volusia County, the Turtles should have sued those municipalities if they believed that artificial beachfront lighting-related takes occurred on their beaches. Additionally, Volusia County argues that its lack of authority to regulate and enforce lighting restrictions in those municipalities left the district court without power to redress the alleged "harm." Moreover, Volusia County contends that the Turtles' requested relief, if granted, would effectively force it to pass a new ordinance or amend its existing one, violating the separation of powers.

Regarding the third issue, the Turtles assert that the district court should have "freely given" them leave to amend their complaint to add the leatherback sea turtle as a party. They contend that, contrary to the district court's findings: (1) they sufficiently notified both the Service and Volusia County of their intent to sue for takes of the leatherback sea turtle through artificial beachfront lighting; (2) they discovered new information after they filed the original complaint; and (3) Volusia County would not have been unduly prejudiced because the Turtles did not ask to amend the preliminary injunction and the parties included the leatherback sea turtle in discovery.

Volusia County responds that the Turtles' notice of intent to sue inadequately referred to the leatherback sea turtles as "nesting" on Volusia County beaches, as opposed to being "taken." Volusia County contends that the Turtles possessed evidence of takes at least three months prior to filing their motion for leave to amend. Finally, Volusia County points to the "additional expense and possible delay" that the Turtles' amendment would cause.

Under the ESA, it is unlawful to "take" endangered or threatened wildlife unless a statutory exception applies. 16 U.S.C. § 1538(a)(1)(B) (1994) (the "take" prohibition); see 50 C.F.R. § 17.31(a) (1997) (the "take" prohibition applies to threatened as well as endangered wildlife). Defined broadly, "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect[.]" 16 U.S.C. § 1532(19); see Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 115 S.Ct. 2407, 2416, 132 L.Ed.2d 597 (1995) ("Congress intended 'take' to apply broadly to cover indirect as well as purposeful actions."). It is equally unlawful "to attempt to commit, solicit another to commit, or cause to be committed" a "take." 16 U.S.C. § 1538(g).

"Harass" and "harm," within the meaning of "take," are defined through regulation. The Secretary of the Interior, through the Service, has construed "harass" as "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering." 50 C.F.R. § 17.3; see 16 U.S.C. § 1533(d) (delegating regulatory authority to the "Secretary"); Sweet Home, 515 U.S. 687, 115 S.Ct. at 2410 & n. 2 (noting that the Secretary of the Interior, through the Director of the Service, promulgated 50 C.F.R. § 17.3).

The crux of the Turtles' artificial beachfront lighting allegations centered on "harm," "an act which actually kills or injures wildlife" that may include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3 (the "harm" regulation).4 At the preliminary injunction stage, the district court found "overwhelming[ ]" evidence that artificial beachfront lighting "harms" sea turtles on Volusia County's beaches. 896 F.Supp. at 1180-81.5 Similarly, at the summary judgment stage, the district court found a genuine factual dispute "as to whether the artificial beachfront lighting controlled by Volusia County is responsible for 'taking' sea turtles."6

The incidental take permit exception to the "take" prohibition and its regulatory constructions, including the "harm" regulation, can be found in 16 U.S.C. § 1539(a). As relevant to this case, the Service "may permit, under such terms and conditions as [it] shall prescribe ... any taking otherwise prohibited by section 1538(a)(1)(B) of [the ESA] if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B).7 As a prerequisite to receiving an incidental take permit, the applicant must submit a habitat conservation plan that specifies: "(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 [issuing agency] may require as being necessary or appropriate for purposes of the plan." 16 U.S.C. § 1539(a)(2)(A).8 Service regulations further instruct the applicant to 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).

Upon receiving a complete application package, the Service must publish notice in the Federal Register and provide the public an opportunity to comment on whether the Service should issue the permit. 16 U.S.C. § 1539(a)(2)(B); 50 C.F.R. § 17.22 ("The Director [of the Service] shall publish notice in the Federal Register of each application for [an incidental take permit]. Each notice shall invite the submission from interested parties, within 30 days after the date of the notice, of written data, views, or arguments with respect to the application."); 50 C.F.R. § 17.32(b)(1)(ii); see, e.g., Notice of Receipt of an Application for an Incidental Take Permit, 61 Fed.Reg. 9716 (1996) (summarizing Volusia County's application). Upon expiration of the public comment period, the Service must issue the permit if it finds that:

(i) the taking will be incidental;

(ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;

(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 Service] 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); 50 C.F.R. § 17.32(b)(2).9

An incidental take permit "may authorize a single transaction, a series of transactions, or a number of activities over a specific period of time." 50 C.F.R. § 17.22; 50 C.F.R. § 17.32. Additionally,

[t]he authorizations on the face of a permit which set forth specific times, dates, places, methods of taking, numbers and kinds of wildlife or plants, location of activity, authorize certain circumscribed transactions, or otherwise permit a specifically limited matter, are to be strictly construed and shall not be interpreted to permit similar or related matters outside the scope of strict construction.

50 C.F.R. § 13.42; see also 50 C.F.R. § 220.42. Finally, the applicant's failure to comply "with the terms and conditions of the permit" requires the Service to revoke the permit. 16 U.S.C. § 1539(a)(2)(C).

We turn first to the Turtles' contention that Volusia County's incidental take permit does not expressly authorize takings through artificial beachfront lighting. Such express authority, if it exists, can be found only within the four corners of the permit. See generally 16 U.S.C. § 1539(a) (issuing official must "prescribe" the permit's "terms and conditions"). In its introductory headline, Volusia County's incidental take permit states that the Service "authorizes incidental take within the Defined Area or County Beaches, associated with the activities described in Condition F below, of [appellant loggerhead sea turtle, appellant green sea turtle, leatherback sea turtle, hawksbill sea turtle (Eretmochelys imbricata ) and Kemp's ridley sea turtle (Lepidochelys kempii ) ] conditioned upon implementation of the terms and conditions of this Permit." Condition F, in turn, lists eleven "authorized" types of incidental take:

F. The following types of incidental take are authorized herein, subject to the continued validity of this Permit:

1. Harassment, injury, and/or death to sea turtle eggs and/or hatchlings resulting from public and emergency and/or safety vehicles driving over unmarked/unprotected sea turtle nests located in designated traffic lane/driving area(s) or ramp [illegible] area(s) on County Beaches.

2. Harassment, injury, and/or death to sea turtle eggs and/or hatchlings resulting from emergency and/or safety vehicles driving over unmarked/unprotected sea turtles nests located within the Defined Area.

3. Harassment, injury, and/or death to sea turtle eggs and/or hatchlings resulting from emergency and/or safety vehicles driving over marked sea turtle nests located within the Defined Areas.

4. Harassment, injury, and/or death to hatchling sea turtles emerging from unmarked/unprotected nests and subsequently caught in vehicle ruts in areas where no rut removal has taken place.

5. Harassment, injury, and/or death to adult, hatchling, stranded, or post-hatchling washback [sic] sea turtles resulting from collisions with emergency and/or safety vehicles operating within the Defined Area; such vehicles may also disorient/harass adults and/or hatchling sea turtles with headlights while in motion or at rest for less than one minute, or harass adult sea turtles during nesting activity.

6. Harassment, injury, and/or death to adult female sea turtles attempting to nest in the Transitional and/or Urban Areas of the County Beaches between 8 a.m. and 7 p.m., resulting from collisions with vehicles operated by the general public.

7. Harassment, injury, and/or death to hatchling sea turtles emerging from the nest and/or crawling from the Transitional and/or Urban Areas of the County Beaches to the ocean between 8 a.m. and 7 p.m., resulting from collisions with vehicles operated by the general public pursuant to terms and conditions of this permit.

8. Harassment, injury, and/or death to post-hatchling sea turtles that have emerged from a nest and entered the ocean by having been washed back onto Transitional and/or Urban Areas of the County Beaches resulting from collisions with vehicles operated by the general public pursuant to terms and conditions of this permit.

9. Harassment, injury, and/or death to nesting female turtles attempting to nest in the Defined Areas, resulting from physiological stress of potentially increasing the number of false crawls during the nesting season, or from sand compaction due to vehicles operating within the Defined Area pursuant to the terms and conditions of this permit.

10. Harassment, injury, and/or death of sea turtle and/or hatchlings in unmarked/unprotected nests due to physical crushing by activities associated with (1) marking the established Conservation Zone in the Transitional and Urban Areas of the County Beaches; (2) placement of trash receptacles on County Beaches; (3) placement of portable toilets as outlined in the [habitat conservation plan]; and (4) beach maintenance activities, including ramp maintenance.

11. Harassment, injury, and/or death of sea turtle eggs and/or nests laid outside the normal sea turtle nesting season, May 1 through October 31, when a nest monitoring/marking program is not in place.

(Emphasis added.) Indisputably, these eleven types of incidental take relate only to vehicular access on Volusia County's beaches. None of the eleven authorized activities listed in Condition F concerns artificial beachfront lighting. The only form of lighting mentioned in Condition F is vehicular headlights.

Although the majority of its conditions concern beach driving, the incidental take permit does address artificial beachfront lighting. Condition G of the permit, entitled "Mitigation/Minimization Measures," lists fifteen categories of "measures [to] be employed by the Permittee to ensure that take is minimized and mitigated." These categories fall under the following general headings: (1) "Protected Species Beach Management Areas"; (2) "Tire Tracks/Rut Removal Program"; (3) "Driving Zone Delineation"; (4) "Operation of Non-Public Vehicles within Conservation Zones and Protected Species Beach Management Areas"; (5) "Placement and Maintenance of Portable Facilities"; (6) "Maintenance and Placement of the Conservation Zone Markers"; (7) "Nighttime Operation of Law Enforcement/Safety Vehicles"; (8) "Special Beach Events"; (9) "Lifeguard Station Management"; (10) "Commercial Fishermen"; (11) "Beach/Access Ramp Maintenance and Cleaning"; (12) "Standards for Beach Evacuation"; (13) "Artificial Beachfront Lighting "; (14) "Off-Beach Parking Plan"; and (15) "Species Management Program." (Emphasis added.) Most of these categories contain lengthy subcategories as well.

The mitigation measures relative to artificial beachfront lighting occupy less than two out of twenty-five pages of Volusia County's incidental take permit:

13. Artificial Beachfront Lighting.

i. Beachfront Lighting Management Plan. By November [illegible date] 1997, the Permittee shall have developed a Beach Lighting Management Plan. The U.S. Fish and Wildlife Service must approve the Beach Lighting Management Plan prior to its implementation. The scope of work of the Beach Lighting Management Plan shall include, but is not limited to, the following items.

a. Identify and map jurisdictional boundaries along the Volusia County coast.

b. Categorize coastal areas of the County with respect to existing lighting environments. Categories will consider type and extent of upland development, amount and intensity of beachfront lighting, sea turtle nesting densities, and relative effort and expense required to meet appropriate lighting standards.

c. Determine the adequacy of existing ordinances and codes within each jurisdiction as well as the adequacy of related enforcement programs in protecting nesting and hatchling sea turtles from beachfront lighting.

d. Develop an approach for addressing lighting issues for each coastal lighting category. Where modifications are impractical or cost prohibitive, develop mitigation guidelines that will yield greater cost/benefit ratios.

e. Develop a protocol for detailed lighting evaluations along those sections of coastline where lighting modifications are feasible and cost effective.

f. If it is determined that lighting ordinances will be cost effective and can be practically implemented in the currently exempt areas of Daytona Beach and Daytona Beach Shores, then coordinate the development of new ordinances in those municipalities.

g. Develop a program for assisting coastal property owners in bringing lights into compliance with local ordinances or Florida Department of Environmental Protection guidelines.

h. Develop a generic public awareness program for promoting turtle-friendly lighting and voluntary compliance with light management guidelines.

i. Develop a long-term program for annual maintenance lighting evaluations.

The time frame for developing scope of work for the Beach Lighting Management Plan is one year from adoption of the [habitat conservation plan]. The Beach Lighting Management Plan will be implemented during the second and third years following adoption. Lighting inventories will be conducted during the first year of implementation. The annual lighting maintenance program will be initiated during the third year after [habitat conservation plan] adoption, and a mitigation plan for uncorrectable lighting problems will be implemented during the fourth and fifth years following adoption.

ii. Lighting Surveys. By April 1, 1997, Permittee shall develop, with further consultation and assistance from the U.S. Fish and Wildlife Service and Florida Department of Environmental Protection, a methodology for implementing and citing light sources that disorient sea turtles. Permittee will conduct lighting surveys and compile lists of infractions for Code Enforcement action or referral to the U.S. Fish and Wildlife Service. Lighting surveys will be conducted monthly, at a minimum, from April 1 through October 31 of each year.

iii. County-owned and Operated Lights. The Permitee will survey all beachfront lights owned or operated by Volusia County to identify those that are not in compliance with State guidelines. The Permittee will ensure that the individual responsible for surveying the lights coordinates with the U.S. Fish and Wildlife Service for concurrence with the results. Any lights deemed to be a problem for sea turtles as a result of the survey will be brought into compliance by the County. The U.S. Fish and Wildlife Service will be notified to conduct a survey to ensure compliance; Volusia County personnel or their contractor will be present for the survey. All of the above measures will take place prior to May 1, 1997.

iv. Light Management Training. By July 1, 1997, the Permittee will establish a training manual and hold at least two Permittee-sponsored workshops on lighting and beach crime to provide information on the effects of lighting in compliance with Volusia County Code protecting sea turtles and crime occurrences.

Condition G does not contain any language expressly authorizing takes of sea turtles through artificial beachfront lighting like that contained within Condition F.

In light of the foregoing, it is readily apparent that the incidental take permit exhaustively lists all authorized activities within Condition F and all mitigation measures within Condition G. Activities relative to driving on the beach are mentioned in both conditions. Activities relative to artificial beachfront lighting, however, are mentioned only in Condition G. Given the permit's structure, the express authority to take sea turtles through artificial beachfront lighting--if the Service had so intended--would be memorialized in Condition F. This absence is dispositive. Accordingly, Volusia County lacks the Service's express permission to take sea turtles incidentally through artificial beachfront lighting.

Volusia County argues that even if it lacks the Service's express permission, it has the Service's implied permission to take sea turtles incidentally through artificial beachfront lighting because the Service expressly conditioned the permit on Volusia County's implementation of detailed lighting-related mitigatory measures. This argument presents an issue of first impression in this and other circuits, whether the incidental take permit exception (16 U.S.C. § 1539(a)) to the "take" prohibition (16 U.S.C. § 1538(a)(1)(B)) applies to, and thus excepts from liability, an activity performed as a purely mitigatory measure upon which the Service conditions the permit. We hold that it does not.

The ESA's text and the Service's regulations provide every indication that incidental take permission must be express and activity-specific. To be excepted from liability, the ESA mandates that the "take" be "incidental to ... the carrying out of an ... activity." 16 U.S.C. § 1539(a)(1)(B) (emphasis added). Moreover, in addressing the requirements of the habitat conservation plan, the ESA semantically separates the "action[ ]" at issue from the applicant's intentions to "mitigate" the taking. Compare 16 U.S.C. § 1539(a)(2)(A)(iii) ("what alternative actions to such taking the applicant considered" ) (emphasis added) with 16 U.S.C. § 1539(a)(2)(A)(ii) ("what steps the applicant will take to minimize and mitigate such impacts") (emphasis added). See generally Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 984 (9th Cir.1985) (separating semantically the activity for which the applicants sought an incidental take permit--a development "project"--from the mitigatory measures--"restrictions" on the development). Furthermore, before the Service issues an incidental take permit, the fact-finding official must resolve at least two statutorily distinct questions: (1) whether the activity will be free of purposeful takes; and (2) whether the applicant will mitigate the authorized takes' effect. Compare 16 U.S.C. § 1539(a)(2)(B)(i) ("the taking will be incidental") (emphasis added) with 16 U.S.C. § 1539(a)(2)(B)(ii) ("the applicant will ... minimize and mitigate the impacts of such taking") (emphasis added).

The statutory dividing line between activities sought to be permitted and mitigatory measures is further reinforced in the Service's regulations. The Service requires applicants to describe completely "the activity sought to be authorized." 50 C.F.R. §§ 17.22(b)(1)(i), 17.32(b)(1)(iii)(A) (emphasis added); see also 50 C.F.R. § 222.22(b)(4) (incidental take permit applications to the National Marine Fisheries Service must include a "detailed description of the proposed activity ") (emphasis added).10 The incidental take permit, in turn, "may authorize a single transaction, a series of transactions, or a number of activities [.]" 50 C.F.R. §§ 17.22, 17.32 (emphasis added). Finally, the Service emphasizes that the "authorizations on the face of a permit which set forth specific ... methods of taking ... are to be strictly construed and shall not be interpreted to permit similar or related matters outside the scope of strict construction." 50 C.F.R. § 13.42 (emphasis added); see also 50 C.F.R. § 222.22(d) (incidental take permits that the National Marine Fisheries Service issues must "contain such terms and conditions as the Assistant Administrator deems necessary and appropriate, including ... [t]he authorized method of taking ") (emphasis added).

Even the Service's informal publication advises applicants to describe specifically "all actions ... that ... are likely to result in incidental take" so that the permit holder "can determine the applicability of the incidental take authorization to the activities they undertake." United States Fish & Wildlife Serv., Dep't of the Interior; Nat'l Marine Fisheries Serv., Dep't of Commerce, Habitat Conservation Planning Handbook (Nov.1996), at 3-12 to 3-13 (emphasis added). Otherwise, the Service warns, "broadly defined types of activities ... generally would not be authorized." Habitat Handbook, at 3-13 (emphasis added).11

The content of Volusia County's application and correspondence with the Service reflects the statutory and regulatory dividing line between authorized activities and mitigatory measures. In its initial application to the Service, Volusia County "complete[ly] describ[ed] ... the activity sought to be authorized" as "vehicular access to Volusia County beaches[.]" (Citing 50 C.F.R. §§ 17.22(b)(1)(i).) A follow-up letter from a Service official acknowledging receipt of the application summarized that Volusia County sought "a permit to cover any incidental take of sea turtles that may occur on Volusia County beaches ... as a result of vehicular access to county beaches." (Emphasis added.) Another follow-up letter from the Service pointedly expressed that

it is important to state for the record that the County of Volusia is not seeking incidental take authority for marine sea turtles resulting from lights owned or operated by the County. The purpose of any such discussion in the habitat conservation plan ... is to provide mitigation for impacts to marine sea turtles resulting from permitted activities. The [incidental take permit] application you submitted requests incidental take authority for sea turtle species from beach-driving and associated activities only.

(Emphasis added.) Finally, in a responsive letter to the Service, an assistant county attorney reiterated that "Volusia County is seeking an Incidental Take Permit for vehicles [sic] access to the beaches. However, Volusia County has addressed lighting throughout its permit application as a mitigating factor." (Emphasis added.)

Contrary to Volusia County's position, no published case law even purports to suggest that purely mitigatory measures fall within the scope of the incidental take permit exception, 16 U.S.C. § 1539(a). In Ramsey v. Kantor, the Ninth Circuit addressed whether the States of Oregon and Washington that were neither federal agencies nor applicants for an incidental take statement issued under 16 U.S.C. § 1536(b) may lawfully take federally protected fish without first obtaining an incidental take permit under 16 U.S.C. § 1539(a). 96 F.3d 434, 437 (9th Cir.1996).12 The court answered the question in the affirmative "provided the actions in question are contemplated by an incide