[*] Candidate for J.D. degree, expected December, 1998, Florida State University College of Law. A shorter version of this article won the 1998 Southeastern Association of Fish and Wildlife Agencies environmental writing competition. Return to text.

[1] See JACK RUDLOE, TIME OF THE TURTLE 17 (1979). But see VICTORIA B. VAN METER, FLORIDA'S SEA TURTLES 3 (1992) (stating 150 million years); ROBERT BUSTARD, SEA TURTLES: NATURAL HISTORY AND CONSERVATION 9 (1973) (estimating 90 million years). Return to text.

[2] See LINDA COSTON- CLEMENTS & DONALD E. HOSS, SYNOPSIS OF DATA ON THE IMPACT OF HABITAT ALTERATION ON SEA TURTLES AROUND THE SOUTHEASTERN UNITED STATES 1 (NOAA Technical Memorandum NMFS-SEFC-117, 1983) [hereinafter NOAA]. Return to text.

[3] See VAN METER, supra note 1, at 5. 79,969 sea turtle nests were reported in Florida in 1996. See Florida Marine Research Institute 1996 Florida Nesting Summary (visited Nov. 1997) . Return to text.

[4] See infra notes 62-63, 72 and accompanying text. Return to text.

[5] U.S. Fish and Wildlife Service, Biological Opinion: Volusia County, Florida, Incidental Take Permit (PRT-811813), at 8, Nov. 21, 1996 [hereinafter Biological Opinion]. Return to text.

[6] See infra notes 64-71 and accompanying text. Return to text.

[7] See infra notes 82-135 and accompanying text. Return to text.

[8] See BLAIR E. WITHERINGTON & R. ERIK MARTIN, UNDERSTANDING, ASSESSING, AND RESOLVING LIGHT- POLLUTION PROBLEMS ON SEA TURTLE NESTING BEACHES 1 (Florida Marine Research Institute Technical Report TR-2, 1996). Return to text.

[9] See infra notes 152-263 and accompanying text. Return to text.

[10] See ARCHIE CARR, SO EXCELLENT A FISHE: A NATURAL HISTORY OF SEA TURTLES 13 (1984). Return to text.

[11] See id. Return to text.

[12] See BUSTARD, supra note 1, at 16-17. Unlike land tortoises, sea turtles do not normally lift their bodies clear of the ground when walking and must drag their shells through the sand. See id. at 17. Return to text.

[13] See CARR, supra note 10, at 13. By contrast, in the ocean, sea turtles' great size makes them "almost immune to predation." Id. Return to text.

[14] See VAN METER, supra note 1, at 2. Return to text.

[15] See id. Sea turtles may live up to 100 years. See Telephone Interview with Anne Meylan, Research Scientist in charge of the Marine Turtle Research Program, Florida Marine Research Institute (Nov. 12, 1997). One reason for the lack of exact knowledge on this subject is that not much is known about sea turtles' lives in the ocean. See NOAA, supra note 2, at 4. Return to text.

[16] See NATIONAL RESEARCH COUNCIL, DECLINE OF THE SEA TURTLES: CAUSES AND PREVENTION 21 (1990) [hereinafter NRC]. Return to text.

[17] See WITHERINGTON & MARTIN, supra note 8, at 2. Return to text.

[18] See NRC, supra note 16, at 2. Females may mate only once and then lay several clutches of fertile eggs during the nesting season. See NATIONAL MARINE FISHERIES SERVICE AND U.S. FISH AND WILDLIFE SERVICE, RECOVERY PLAN FOR U.S. POPULATION OF LOGGERHEAD TURTLE 4 (1991) [hereinafter LOGGERHEAD RECOVERY PLAN]. Return to text.

[19] See VAN METER, supra note 1, at 2. Return to text.

[20] See WITHERINGTON & MARTIN, supra note 8, at 2. The nest site is carefully chosen by the female, many of whom stop several times on the way up the beach to check with their snouts the temperature, smell, texture, or water content of the sand. See VAN METER, supra note 1, at 28.

The temperature of the nest affects egg development and influences the sex of the embryos. See id. at 33. Higher incubation temperatures produce mostly females and lower temperatures produce mostly males. See id. at 33-34. Change in incubation temperature as a result of rain or shading can affect the length of the incubation period. See id. "[E]ven small changes [in nest temperature] could cause increased mortality, delays in hatching, or sex ratio imbalance." NOAA, supra note 2, at 11.

Sand particle size is also crucial: "[i]f the sand is too fine, gas diffusion necessary for the eggs to hatch is inhibited and respiratory gas exchange and embryonic development is affected," and if the sand is too coarse, the nest can collapse. Id. at 5. Return to text.

[21] See WITHERINGTON & MARTIN, supra note 8, at 2. Return to text.

[22] See CARR, supra note 10, at 22. Return to text.

[23] See VAN METER, supra note 1, at 2. Return to text.

[24] See id. Return to text.

[25] See id. at 4. Return to text.

[26] See id. at 3. Return to text.

[27] See WITHERINGTON & MARTIN, supra note 8, at 5. When the hatchlings begin to emerge, if those on the top sense sunlight, they will stop and remain in place until the evening comes. See RUDLOE, supra note 1, at 24. Return to text.

[28] See VAN METER, supra note 1, at 4. Scientists call this gap the "lost year." See RUDLOE, supra note 1, at 241. Some believe the young turtles live in floating rafts of sargasso weed. See CARR, supra note 10, at 99. Return to text.

[29] See VAN METER, supra note 1, at 5. Feeding grounds in the continental United States include the Gulf of Mexico and the east coast from Florida to Canada. See id. at 4. Worldwide feeding grounds are located in the Atlantic, Pacific, and Indian Oceans and the Caribbean Sea, in tropical, subtropical, and temperate waters. See id. at 6-8, 14-15, 18-19. Return to text.

[30] See id. at 12. One population of green turtles feeds along the coast of Brazil and nests on Ascension Island, 1400 miles away. Id. Return to text.

[31] See id. at 3. Return to text.

[32] See id. at 11. Return to text.

[33] See NATIONAL MARINE FISHERIES SERVICE AND U.S. FISH AND WILDLIFE SERVICE, RECOVERY PLAN FOR U.S. POPULATION OF ATLANTIC GREEN TURTLE 2-3 (1991) [hereinafter GREEN TURTLE RECOVERY PLAN]. For an example of these navigational abilities, see supra note 30. Return to text.

[34] See id. at 3. Return to text.

[35] See VAN METER, supra note 1, at 8. However, the Green Turtle Recovery Plan lists a range of 350 to 2288 green turtle nests found each year in Florida from 1986 to 1990. See GREEN TURTLE RECOVERY PLAN, supra note 33, at 1. Return to text.

[36] See Van Meter, supra note 1, at 9-10. Until recently, these turtles were considered a delicacy and are the main ingredient in turtle soup. See id. at 9. Green turtles are named for the color of their body fat. See id. at 8. Return to text.

[37] See id. at 7. Return to text.

[38] See LOGGERHEAD RECOVERY PLAN, supra note 18, at 3. Return to text.

[39] See id. at 1-2. Return to text.

[40] See Anne Rudloe & Jack Rudloe, Sea Turtles: In a Race for Survival, NAT'L GEOGRAPHIC, Feb. 1994, at 94, 108-12 [hereinafter NAT'L GEOGRAPHIC]. Return to text.

[41] See LOGGERHEAD RECOVERY PLAN, supra note 18, at 2. Return to text.

[42] See NATIONAL MARINE FISHERIES SERVICE AND U.S. FISH AND WILDLIFE SERVICE, RECOVERY PLAN FOR LEATHERBACK TURTLES IN THE U.S. CARIBBEAN, ATLANTIC, AND GULF OF MEXICO 1, (1992) [hereinafter LEATHERBACK RECOVERY PLAN]. Return to text.

[43] See VAN METER, supra note 1, at 16. Return to text.

[44] See id. at 13-16. A heat exchanging mechanism that permits leatherbacks to maintain a body temperature up to seventeen degrees centigrade above the water temperature enables them to swim in frigid water. See RUDLOE, supra note 1, at 171. Return to text.

[45] See VAN METER, supra note 1, at 14. Leatherbacks have back-pointing spines in their throats to hold jellyfish prey in when water is expelled. See RUDLOE, supra note 1, at 172. Return to text.

[46] LEATHERBACK RECOVERY PLAN, supra note 42, at 3. Return to text.

[47] See NRC, supra note 16, at 35. Return to text.

[48] See VAN METER, supra note 1, at 17. Return to text.

[49] See NATIONAL MARINE FISHERIES SERVICE AND U.S. FISH AND WILDLIFE SERVICE, RECOVERY PLAN FOR THE HAWKSBILL TURTLE IN THE U.S. CARIBBEAN, ATLANTIC, AND GULF OF MEXICO 1 (1993) [hereinafter HAWKSBILL RECOVERY PLAN]. Return to text.

[50] See NRC, supra note 16, at 39 ("Additional killing of juvenile[s] . . . for trade in stuffed specimens raises mortality to catastrophic levels.") Id. Return to text.

[51] See VAN METER, supra note 1, at 18; see also HAWKSBILL RECOVERY PLAN, supra note 49, at 4. Return to text.

[52] See HAWKSBILL RECOVERY PLAN, supra note 49, at 2. Return to text.

[53] See id. at 3. Return to text.

[54] See VAN METER, supra note 1, at 18. Return to text.

[55] See id. at 20. Return to text.

[56] See NRC, supra note 16, at 26. Return to text.

[57] See VAN METER, supra note 1, at 20-21. Arribada means "arrival" in Spanish. See CASSELL'S SPANISH- ENGLISH ENGLISH- SPANISH DICTIONARY 69 (1997). Return to text.

[58] A film taken in 1947 shows approximately 40,000 females nesting in one day at Rancho Nuevo, the main Kemp's ridley nesting beach in Mexico. See U.S. FISH AND WILDLIFE SERVICE AND NATIONAL MARINE FISHERIES SERVICE, RECOVERY PLAN FOR THE KEMP'S RIDLEY SEA TURTLE 5 (1992) [hereinafter KEMP'S RIDLEY RECOVERY PLAN]. In 1968, 5000 females nested there in a single arribada, while between 1978 and 1990, "a single arribada rarely reached 200 females." Id. The Kemp's ridley sea turtles fell prey to egg traders in the early years, but now shrimp trawlers are their main danger. See VAN METER, supra note 1, at 21-22. Return to text.

[59] See KEMP'S RIDLEY RECOVERY PLAN, supra note 58, at 3; NRC, supra note 16, at 25; VAN METER, supra note 1, at 19-21. Return to text.

[60] See Carol B. Cole, Excavation of Kemp's Ridley Nest Hatches Disappointment (visited Nov. 1997) . The two nests in Volusia County were the first recorded Kemp's ridley turtle nestings on Florida's east coast. See id. Return to text.

[61] See letter from Robbin Trindell, Ph.D., Biological Administrator, Marine Turtle Program, Bureau of Protected Species Management, Department of Environmental Protection, to author (May 14, 1998) (on file with author). Return to text.

[62] See VAN METER, supra note 1, at 37. "[M]any turtles bear the wounds of sharks." RUDLOE, supra note 1, at 29. Return to text.

[63] See BUSTARD, supra note 1, at 111-12. Return to text.

[64] See VAN METER, supra note 1, at 38. The international tortoise shell trade "may be the most significant factor endangering hawksbill populations worldwide." HAWKSBILL RECOVERY PLAN, supra note 49, at 15. Return to text.

[65] See NRC supra note 16, at 74. Turtles drown in trawls, drift nets, seines, gill nets, long lines, and other types of fishing equipment, including lost or discarded fishing gear. See id. at 101; see also VAN METER, supra note 1, at 39. Sea turtles can also become entangled in fish and crab trap ropes, buoy anchor lines, and other ropes and cables. See LEATHERBACK RECOVERY PLAN, supra note 42, at 14. Return to text.

[66] See NRC supra note 16, at 75. Incidental capture in shrimp trawls is the most significant cause of mortality for loggerhead and Kemp's ridley turtles in the ocean. See id. Return to text.

[67] See NRC, supra note 16, at 107-09; see also NAT'L GEOGRAPHIC, supra note 40, at 108. Sea turtles can be crushed by dredges. See id. The National Marine Fisheries Service issued a biological opinion in 1991 under Section 7 of the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (1998), finding that the unrestricted operation of hopper dredges off the southeast coast of the United States jeopardized the existence of sea turtles. See KEMP'S RIDLEY RECOVERY PLAN, supra note 58, at 10. Return to text.

[68] See VAN METER, supra note 1, at 42. Many injured and dead turtles are found with propeller wounds, and jet skis may stress turtles near shore during the nesting season. See id. Nesting females are especially vulnerable to accidents involving boats and shrimp trawlers because they remain close to shore between nesting intervals. See NOAA, supra note 2, at 11, "The potential impact from these . . . disasters . . . on the survival of a colony is greatly increased since it is the reproductive contingent that is affected." Id. Return to text.

[69] See NRC, supra note 16, at 110-12; HAWKSBILL RECOVERY PLAN, supra note 49, at 17. Sea turtles are also endangered by oil and gas exploration, development, and transportation. Oil spills harm turtles at sea or nesting grounds, exploration may disrupt feeding grounds, and turtles can ingest tar balls released from bilge pumping. See GREEN TURTLE RECOVERY PLAN, supra note 33, at 7. Return to text.

[70] See NRC, supra note 16, at 112-13; GREEN TURTLE RECOVERY PLAN, supra note 33, at 9. Return to text.

[71] See NRC, supra note 16, at 114; GREEN TURTLE RECOVERY PLAN, supra note 33, at 12. Ingestion of plastics, cellophane, balloons, styrofoam, rubber, wax, charcoal, aluminum cans, cigarette filters, rope and string, monofilament fishing line, and hooks can have fatal impacts on sea turtles. See NRC, supra note 16, at 114; KEMP'S RIDLEY RECOVERY PLAN, supra note 58, at 10. Sea turtles are near-sighted and can mistake plastic bags and balloons for jellyfish, a common food of leatherbacks. See RUDLOE, supra note 1, at 49; VAN METER, supra note 1, at 43. Return to text.

[72] See VAN METER, supra note 1, at 36 ("Today, active nest protection and raccoon control programs on many beaches have greatly increased hatchling production."); NRC, supra note 16, at 62-63 (stating that raccoons destroyed nearly all sea turtle nests at Canaveral National Seashore, Florida, before protective measures were taken); LEATHERBACK RECOVERY PLAN, supra note 42, at 14; see also RUDLOE, supra note 1, at 19-20 (describing raccoons patiently waiting nearby for a mother turtle to lay her eggs and snatching the eggs from the nest chamber as the mother laid them). These natural predators are sometimes indirectly assisted by humans. For example, large raccoon populations are augmented by habitat alteration, human garbage as a food supplement, and removal of natural predators such as panthers and wolves from the coastal zone. See NRC, supra note 16, at 63; RUDLOE, supra note 1, at 19. Return to text.

[73] See VAN METER, supra note 1, at 36; NRC, supra note 16, at 66. Return to text.

[74] See NRC, supra note 16, at 66. Return to text.

[75] Accretion is the deposition of beach sediments. See id. at 77. Return to text.

[76] See id. at 66; LOGGERHEAD RECOVERY PLAN, supra note 18, at 9. Severe storms in the southeastern United States usually occur after the height of the nesting season. See id. at 9. However, storms can cause problems long after the bad weather has ended. When Hurricane Opal struck Florida's panhandle in 1995, the storm flattened dunes and narrowed and lowered beaches. See AP Wire Service, Sea Turtles Still Haunted by Hurricane Opal (visited Nov. 1997) . A year later, a United States Fish and Wildlife Service biologist estimated that eighty to ninety percent of the turtle nests in the area may have failed due to erosion-caused tidal inundation and water table seepage into nests. See id. Also, the flattened dunes exposed street and building lights to hatchlings, misorienting them away from the ocean. See id.

Leatherback nests are particularly vulnerable to erosion because the turtles' great size and tender skin force them to choose high energy, accessible beaches with a steep slope, which prevents them from traveling far inland to lay their eggs. See LEATHERBACK RECOVERY PLAN, supra note 42, at 10; NRC, supra note 16, at 41.

Nests can also be destroyed when dug into by another nesting female, but this is not a serious cause of mortality because most nesting populations have relatively low densities. See NOAA, supra note 2, at 65. Return to text.

[77] See HAWKSBILL RECOVERY PLAN, supra note 49, at 7. Return to text.

[78] See VAN METER, supra note 1, at 37. Return to text.

[79] See LEATHERBACK RECOVERY PLAN, supra note 42, at 14. Return to text.

[80] See VAN METER, supra note 1, at 37. The tumors were first described in 1938 and are now commonly observed on green turtles in the Indian River area, Florida Bay, and the Florida Keys. See GREEN TURTLE RECOVERY PLAN, supra note 33, at 11. Loggerhead and hawksbill turtles have also been reported to have the tumors. See Robert H. George, Health Problems and Diseases of Sea Turtles, in THE BIOLOGY OF SEA TURTLES 363, 371 (Peter L. Lutz & John A. Musick eds., 1997). The tumors can cause disorientation, blindness, and physical obstruction adversely affecting normal swimming and feeding. See id. Return to text.

[81] See AP Wire Service, Tumor Biggest Threat for Endangered Green Turtles (visited Nov. 1997) . The tumors are more common in sea turtles in near-shore waters, areas near large human populations, and areas with low water turnover, as opposed to turtles in deeper, more remote areas. See George, supra note 79, at 372. Current treatment includes surgical removal of tumors. See id at 374. Return to text.

[82] See LOGGERHEAD RECOVERY PLAN, supra note 18, at 16; NRC, supra note 16, at 113. But see GREEN TURTLE RECOVERY PLAN, supra note 33, at 7 (stating that Florida Marine Patrol made twenty-nine arrests for illegal possession of eggs from 1983 to 1989). Return to text.

[83] See VAN METER, supra note 1, at 37-39. Sea turtle eggs are prized in Latin America as an aphrodisiac and the eggs are sold for raw consumption in bars. See NAT'L GEOGRAPHIC, supra note 40, at 101. In the past, human exploitation of green turtles caused the extinction of entire populations which once nested in Bermuda and the Cayman Islands. See GREEN TURTLE RECOVERY PLAN, supra note 33, at 2. Prior to the institution of protection efforts in 1966, Kemp's ridley "eggs were taken out in mule trains, by truck and by horseback" from nesting beaches in Rancho Nuevo, Mexico. See KEMP'S RIDLEY RECOVERY PLAN, supra note 58, at 7. Mexican and United States conservationist and agency collaboration has resulted in a significant decrease in poaching in that area. See id. at 11. Return to text.

[84] See NRC, supra note 16, at 80; WITHERINGTON & MARTIN, supra note 8, at 4. Return to text.

[85] A "false crawl" occurs when a female ascends the beach but returns to the sea without nesting. See VAN METER, supra note 1, at 29. Once the egg-laying process has begun, nesting females are not easily disturbed, but they may turn back if bothered by beach activity or lights when exiting the water, ascending the beach, or digging the nest, or if they encounter an obstacle on the beach. See id. Disturbances may also result in the abbreviation of the post-egg-laying behavior of covering eggs and camouflaging the site. See WITHERINGTON & MARTIN, supra note 8, at 4. False crawls are exhausting exercises for nesting sea turtles because the turtles are so heavy, slow and awkward on land. See VAN METER, supra note 1, at 27. Turtles prevented from nesting may shed their eggs at sea. See WITHERINGTON & MARTIN, supra note 8, at 4. Return to text.

[86] See HAWKSBILL RECOVERY PLAN, supra note 49, at 10. Flashlights can also misorient hatchlings away from the ocean. See id. at 11. Return to text.

[87] See NOAA, supra note 2, at 11. Return to text.

[88] See GREEN TURTLE RECOVERY PLAN, supra note 33, at 5. Horse traffic can also cause these problems. See VAN METER, supra note 1, at 42. Return to text.

[89] See HAWKSBILL RECOVERY PLAN, supra note 49, at 11. Return to text.

[90] See NOAA, supra note 2, at 14. Return to text.

[91] See LOGGERHEAD RECOVERY PLAN, supra note 18, at 8. Nesting females can become trapped under heavy furniture. See id. If a sea turtle purposefully places a nest in the shade cast by beach furniture, the nest may become too hot if the furniture is removed and the nest site is exposed to direct sunlight. See HAWKSBILL RECOVERY PLAN, supra note 49, at 11. Return to text.

[92] See LEATHERBACK RECOVERY PLAN, supra note 42, at 14. Return to text.

[93] See NRC, supra note 16, at 81. "The extended period of travel required to negotiate tire tracks . . . may increase the susceptibility of hatchlings to stress and depredation during transit to the ocean." See GREEN TURTLE RECOVERY PLAN, supra note 33, at 6. Return to text.

[94] See NRC, supra note 16, at 81. Driving directly over a nest can kill the incubating sea turtles within the nest, or it may compact the sand above the nest to the extent that it interferes with hatchling emergence. See id. Driving on beaches during high tides or on narrow beaches also contributes to erosion of nesting habitats. See id. Return to text.

[95] See LOGGERHEAD RECOVERY PLAN, supra note 18, at 7. Return to text.

[96] See NRC, supra note 16, at 79-80. Disposal or burial of debris on the beach can harm nests and impede hatchlings. See id. at 80. Beach cleaning also exacerbates erosion because the removal of leaf litter and vegetation allows wind to move sand out of the nesting area. See HAWKSBILL RECOVERY PLAN, supra note 49, at 10. Return to text.

[97] See LOGGERHEAD RECOVERY PLAN, supra note 18, at 8. Return to text.

[98] See id. Return to text.

[99] See id. The Australian Pine has engulfed many coastal areas in Florida and can shade the beach, significantly affecting nest temperatures and nest-site selection. See NRC, supra note 16, at 81-82. But see GREEN TURTLE RECOVERY PLAN, supra note 33, at 6 (reporting that dense stands of the trees can create a barrier to beach lighting which may result in concentrated nesting). Similarly, nesting sea turtles are often attracted to beaches in front of unoccupied or darkened buildings, which can look like a row of trees. See NAT'L GEOGRAPHIC, supra note 40, at 112. Return to text.

[100] See NOAA, supra note 2, at 11, 14. Return to text.

[101] See id. at 11; see also infra notes 126-36 and accompanying text (describing the effects of artificial beachfront lighting on sea turtles). Return to text.

[102] See NRC, supra note 16, at 77-78. Return to text.

[103] See FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, SAND IN MY SHOES: A GUIDE TO LIVING WITH FLORIDA'S COAST at 17 (1995) [hereinafter DCA]. Return to text.

[104] See id. Return to text.

[105] See id. Coastal armoring includes sea walls, rock revetments, riprap, sandbag installations, groins, jetties, and bulkheads. See NRC, supra note 16, at 77; DCA, supra note 103, at 17. Return to text.

[106] See DCA, supra note 103, at 17-19. "More than 350 of Florida's 825 miles of sandy beach . . . are eroding. Of these, 233 miles have critical erosion problems." See id. at 18. Approximately 21% of Florida's beaches are armored. See HAWKSBILL RECOVERY PLAN, supra note 49, at 7. Return to text.

[107] See DCA, supra note 103, at 19; NRC, supra note 16, at 77-78. Return to text.

[108] See NRC, supra note 16, at 77-78; Molly E. Lutcavage et al., Human Impacts on Sea Turtle Survival, in THE BIOLOGY OF SEA TURTLES 387, 390 (Peter L. Lutz & John A. Musick eds., 1997) (explaining that renourishment usually takes place during the summer nesting season because costs are lower due to calmer seas). Return to text.

[109] During the 1997 nesting season at Egmont Key State Park on Florida's west coast, erosion narrowed the beach so much that females were forced to nest below the high tide line, and hundreds of sea turtle eggs were flooded. See N-J Wire Services, Sea Turtle Nests Swamped By Tides (visited Nov. 1997) . Return to text.

[110] See GREEN TURTLE RECOVERY PLAN, supra note 33, at 3; NRC, supra note 16, at 77. Because the majority of coastal armoring structures are vertical seawalls, the most common problem caused by coastal armoring occurs when females intercept seawalls and abandon nesting. See Letter from Dr. Robbin Trindell, supra note 61; see also WITHERINGTON & MARTIN, supra note 8, at 4 (reporting 1994 loggerhead nesting success at undeveloped beaches of Canaveral National Seashore as 61%, while nesting success at the residential, heavily armored beaches of Jupiter Island was 45%). Return to text.

[111] See GREEN TURTLE RECOVERY PLAN, supra note 33, at 3. Return to text.

[112] See HAWKSBILL RECOVERY PLAN, supra note 49, at 7-8. Digging impediments can cause false crawls. See WITHERINGTON & MARTIN, supra note 8, at 4. Return to text.

[113] See GREEN TURTLE RECOVERY PLAN, supra note 33, at 3; NRC, supra note 16, at 77. "Sandbags are particularly susceptible to rapid failure and result in extensive debris on nesting beaches." See LOGGERHEAD RECOVERY PLAN, supra note 18, at 5. Sand or drift fences used to stabilize dunes can also impede nesting and trap hatchlings and nesting females if they are improperly located. See id. at 5-6. Return to text.

[114] See NRC, supra note 16, at 78. These projects are often conducted twenty-four hours a day. See id. The artificial lights and activity may also affect nesting females and hatchlings on adjacent beaches. See id. The "mechanical earth moving" of renourishment projects may damage nests by compression or excavation, and may increase the chance of storm washover. See NOAA, supra note 2, at 13. Return to text.

[115] See GREEN TURTLE RECOVERY PLAN, supra note 33, at 4. Access to nesting sites is affected by steep escarpments, which form in the mid-beach zone as a result of wave action caused by the renourishment. See LOGGERHEAD RECOVERY PLAN, supra note 18, at 6; Lutcavage et al., supra note 108, at 389. During the 1997 nesting season, beach renourishment created a steep beach in Sebastian Inlet State Park which discouraged sea turtles from nesting, causing a high number of false crawls. See David Kearns, Some Turtles Won't Nest in Renourished Beach Area, FLORIDA TODAY, Aug. 29, 1997, available in 1997 WL 12790356. Return to text.

[116] Sand color affects nest temperature, and thus hatchling sex ratios. See GREEN TURTLE RECOVERY PLAN, supra note 33, at 17. See generally supra note 20 (explaining effects of temperature on nests). Return to text.

[117] Sand grain shape, size, and compaction can affect gas diffusion within the nest. See GREEN TURTLE RECOVERY PLAN, supra note 33, at 17. See NOAA, supra note 2, at 5. Return to text.

[118] See NRC, supra note 16, at 78. The process could also expose buried sediments unsuitable for nesting. See NOAA, supra note 2, at 13. "Differences in temperature, hydric en vironment, and gas exchange affect hatching rates and possibly the vigor and survivorship of hatchlings." Lutcavage et al., supra note 108, at 388. Return to text.

[119] See NRC, supra note 16, at 78. Return to text.

[120] See id. Return to text.

[121] See LOGGERHEAD RECOVERY PLAN, supra note 18, at 6. Return to text.

[122] See id. at 16. Return to text.

[123] See id. at 6. Return to text.

[124] See id. Return to text.

[125] See GREEN TURTLE RECOVERY PLAN, supra note 33, at 17. Return to text.

[126] See VAN METER, supra note 1, at 42. Return to text.

[127] See NRC, supra note 16, at 79. This type of lighting includes light from buildings, streetlights, dune crossovers, vehicles, and parking lots. See id. Return to text.

[128] See id.; WITHERINGTON & MARTIN, supra note 8, at 16. Return to text.

[129] See WITHERINGTON & MARTIN, supra note 8, at 2, 4-5. Return to text.

[130] See id. at 2-3. The reason for this deterrence may be that sea turtles perceive artificial lighting as daylight. See id. at 2. Nesting sea turtles deterred from one beach by lighting may choose a less appropriate nest site or may shed their eggs at sea. See id. at 4. One study found that loggerhead turtles nesting on beaches where background glow is visible prefer darker areas where buildings are silhouetted against the glow. See id. at 2. Return to text.

[131] Sea turtles "rel[y] on brightness for correct seaward orientation." See id. at 5. Return to text.

[132] See id. at 4-5. This situation occurs rarely, but when it does occur it is often fatal: the turtles may be prevented from returning to the sea by topography or obstacles, or may wander onto a road and be struck by a car. See id. at 5. Return to text.

[133] See id. at 5-15. Return to text.

[134] See id. at 5. Return to text.

[135] See NRC, supra note 16, at 79. From 1989 to 1990, 37,159 misoriented hatchlings were reported to the Florida Department of Natural Resources (precursor of the Florida Department of Environmental Protection), but this does not include the many unreported misorientations. See LOGGERHEAD RECOVERY PLAN, supra note 18, at 7. Return to text.

[136] See NRC, supra note 16, at 79. In addition to artificial lights on shore, hatchlings can be attracted to lights on boats, platforms, and piers. See WITHERINGTON & MARTIN, supra note 8, at 15, 68. These hatchlings may become prey to fish in the near-shore waters. See id. at 15. Return to text.

[137] See WITHERINGTON & MARTIN, supra note 8, at v. Return to text.

[138] See id. at 20. Although it is difficult to quantify the amount of beach lighting that negatively affects sea turtles, Blair Witherington and R. Erik Martin offer the following rule: "An artificial light source is likely to cause problems for sea turtles if light from the source can be seen by an observer standing anywhere on the nesting beach." Id. at 16. Return to text.

[139] See id. at 20-22. Return to text.

[140] See id. at 23. Return to text.

[141] See NRC, supra note 16, at 122. Return to text.

[142] See RUDLOE, supra note 1, at 17; VAN METER, supra note 1, at 41. Return to text.

[143] See NRC, supra note 16, at 121; LOGGERHEAD RECOVERY PLAN, supra note 18, at 24. Return to text.

[144] See NRC, supra note 16, at 122; LOGGERHEAD RECOVERY PLAN, supra note 18, at 8. Return to text.

[145] See GREEN TURTLE RECOVERY PLAN, supra note 33, at 5. Return to text.

[146] See NRC, supra note 16, at 121; Stephen H. Higgins & Louis E. Fisher, The Impacts of Sea Turtle Nest Relocation in Broward County, Florida, in THE STATE OF THE ART OF BEACH NOURISHMENT: PROCEEDINGS OF THE 1993 NATIONAL CONFERENCE ON BEACH PRESERVATION TECHNOLOGY 309 (Lawrence S. Tait ed., 1993) [hereinafter Higgins]. Return to text.

[147] See WITHERINGTON & MARTIN, supra note 8, at 69; Higgins, supra note 146, at 309. Return to text.

[148] See Higgins, supra note 146, at 316. However, such nest and hatchery protection measures should always enable hatchling release the same night of hatching. See GREEN TURTLE RECOVERY PLAN, supra note 33, at 21. Return to text.

[149] See WITHERINGTON & MARTIN, supra note 8, at 69 (listing possible dangers of nest relocation as loss of missed and unrelocated nests and damage to eggs during transit, and stating, "Putting eggs in places other than those chosen by the nesting turtle can be detrimental."); VAN METER, supra note 1, at 47 (observing that temperature differences in new location may affect sex ratios); see also U.S. Fish and Wildlife Service, Final Environmental Assessment for the Incidental Take Permit and Volusia County Beach Habitat Conservation Plan, at 3-42 (1996) [hereinafter Environmental Assessment] (stating that relocation could affect gas exchange parameters and moisture conditions in nests, and could disrupt the hatchling imprint process, which research has shown may cause some female sea turtles to return to their natal beach to nest). However, a study of the effects of nest relocation in Broward County, Florida, found that the hatching success of relocated nests is equivalent to that of unrelocated nests. See Higgins, supra note 146, at 309. The study also found that the short-term impact of the relocation program was a decrease in nest destruction and hatchling disorientation. See id. But see Telephone Interview with Dan Evans, Coordinator, Sea Turtle Survival League (Nov. 13, 1997) (stating that, in general, hatchling success after relocation is lower because all the natural conditions of the nest cannot be duplicated; the nest location is part of the decision-making process of the nesting female). Return to text.

[150] See VAN METER, supra note 1, at 41 ("The goal of sea turtle conservation programs is self-sustaining populations that do not require human intervention such as [nest relocation.]"); see also LOGGERHEAD RECOVERY PLAN, supra note 18, at 24 ("Nest relocation programs at best should be considered as a short-term measure to protect nests in these situations with primary efforts directed towards habitat restoration."). Return to text.

[151] See GREEN TURTLE RECOVERY PLAN, supra note 33, at 11. In 1995, the Florida Depart ment of Environmental Protection ("DEP") recommended nest caging rather than relocation to protect nests from human impacts. See Environmental Assessment, supra note 149, at 3-44. DEP considers relocation undesirable as a management tool. See Letter from Dr. Robbin Trindell, supra note 61. Currently, DEP authorizes nest relocation only for conservation reasons, and not for human-related impacts other than erosion and beach renourishment projects. See id. An exception to this policy is the Dade and Broward County area, where intense urban development and associated lighting impacts necessitate moving nests to hatcheries. See id. DEP is working with these counties to avoid relocation whenever possible and to develop a lighting plan to reduce the current amount of artificial beachfront lighting. See id. Return to text.

[152] 16 U.S.C. §§ 1531-43 (1998). Return to text.

[153] Id. § 1536(a)(2). Return to text.

[154] See id. §§ 1538(a)(1)(B)- (C). Return to text.

[155] Id. § 1532(19). Return to text.

[156] Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 691 (1995). Return to text.

[157] An incidental take is one otherwise prohibited by the ESA but which is "incidental to, and not for the purpose of, the carrying out of an otherwise lawful activity." § 1539(a)(1)(B). Return to text.

[158] Id. § 1539(a)(2)(B)(iv). Return to text.

[159] See FLA. STAT. § 372.072(2) (1997). Return to text.

[160] Id. Return to text.

[161] See id. § 372.072(4)(a)2. The Marine Turtle Protection Program in DEP's Bureau of Protected Species Management is responsible for management efforts toward sea turtle recovery, including recovery program planning, management and administration, coordination of research and management activities, habitat protection, and education. See Bureau of Protected Species Management, Sea Turtle Protection Efforts (visited Nov. 1997) . Florida Marine Research Institute, the marine research arm of DEP, monitors statewide nesting activity, documents mortalities, conducts research on the biology of sea turtles, and provides data for managing and evaluating coastal-development effects. See Florida Marine Research Institute, Marine Turtles (visited Nov. 1997) . Return to text.

[162] See FLA. ADMIN. CODE R. 39-27.003(6)-(9) (1998). "Endangered" means a species "whose prospects of survival are in jeopardy due to modification or loss of habitat; over utilization for commercial, sporting, scientific, or educational purposes; disease; predation; inadequacy of regulatory mechanisms; or other natural or manmade [sic.] factors affecting its continued existence." FLA. STAT. § 372.072 (3)(b) (1997). Return to text.

[163] See FLA. ADMIN. CODE. R. 39-27.004(3) (1998). "Threatened" means a species "which may not be in immediate danger of extinction, but which exists in such small populations as to become endangered if it is subjected to increased stress as a result of further modification of its environment." FLA. STAT. § 372.072(3)(c) (1997). Return to text.

[164] FLA. STAT. § 370.12(1)(b) (1997). Return to text.

[165] See id. Each of these recovery plans prepared by USFWS "delineates and schedules those actions believed necessary to restore [the species] as a viable self-sustaining element of its ecosystem." LEATHERBACK RECOVERY PLAN, supra note 42, at i; see also GREEN TURTLE RECOVERY PLAN, supra note 33, at i; HAWKSBILL RECOVERY PLAN, supra note 49, at i; KEMP'S RIDLEY RECOVERY PLAN, supra note 58, at i; LOGGERHEAD RECOVERY PLAN, supra note 18, at i. Return to text.

[166] FLA. STAT. § 370.12(1)(c) (1997). Return to text.

[167] Id. Return to text.

[168] See id. § 370.12(1)(d). Return to text.

[169] See id. § 370.12(1)(e). Return to text.

[170] See id. § 370.12(1)(f). Return to text.

[171] See id. § 370.12(1)(e). Return to text.

[172] See id. Return to text.

[173] See id. § 370.12(1)(g). Return to text.

[174] See FLA. STAT. § 161.53(5) (1997). Return to text.

[175] See id. § 161.53(5)(a). Return to text.

[176] See id. § 161.58(2). The exceptions are traffic "necessary for cleanup, repair, or public safety, or for the purpose of maintaining existing licensed and permitted traditional commercial fishing activities or existing, authorized public accessways . . . ." See id. Return to text.

[177] See Act effective July 1, 1989, ch. 89-249, 1989 Fla. Laws 1036. Return to text.

[178] See FLA. STAT. § 161.58(2)(b) (1997). Return to text.

[179] See id. § 161.58(2). Return to text.

[180] FLA. STAT. §§ 161.011-.45 (1997). Coastal construction is defined as including "any work or activity which is likely to have a material physical effect on existing coastal conditions or natural shore and inlet processes." Id. § 161.011(6). Return to text.

[181] See id. § 161.041(1) (1997). Return to text.

[182] See id. § 161.053(1)(a). With the aim of protecting Florida's beach-dune system, the Beach and Shore Preservation Act ordered DEP to establish coastal construction control lines (CCCLs) in counties on Florida's coast where necessary to protect uplands and control erosion. See id. § 161.053(1)(a). The CCCLs were established to define the "portion of the beach-dune system which is subject to severe fluctuations based on . . . predictable weather conditions." Id.

If a proposed structure is seaward of the CCCL but is sited and designed to protect sea turtles, the construction is exempted from regulation under this section as long as it is located landward of existing armoring that meets certain requirements. See id. § 161.053(2)(b). Return to text.

[183] See id. § 161.053(5)(c). Return to text.

[184] See id. § 161.053(19). This section addresses general permits for projects including dune walkovers, decks, fences, landscaping, sidewalks, driveways, pool resurfacing, minor pool repairs, and certain single-family homes. See id. Return to text.

[185] See id. § 161.053(18). Such activities can include road repairs, utility repairs and replacements, beach cleaning, and emergency response. See id. Return to text.

[186] See id. § 161.0531(1). Return to text.

[187] See id. § 161.142(3). Return to text.

[188] See id. § 161.085(2). Return to text.

[189] See id. § 161.085(3). The county or municipality may authorize installation of these structures to protect private structures or public infrastructure from erosion caused by a major storm event. See id. Within 60 days of installation, the local government must submit a permit application to DEP for a permanent structure, or the temporary structure must be removed. See id. § 161.085(6). Return to text.

[190] See id. § 161.085(3)(e). Return to text.

[191] See id. § 161.161(1)(i), (2)(j) - (k). Return to text.

[192] See id. § 161.111. Return to text.

[193] See id. § 161.161(2)(j)- (k). Return to text.

[194] See id. § 161.161(2). Return to text.

[195] Id. § 161.163 (1997). Return to text.

[196] See FLA. ADMIN. CODE R. 62B-55.003 (1995). For a list of the counties, see infra note 237. Return to text.

[197] See FLA. ADMIN. CODE CH. 62B-55 (1995); see also infra notes 236-44 and accompanying text (describing chapter 62B-55 in detail). Return to text.

[198] See FLA. ADMIN. CODE CH. 62B-41 (1996). Return to text.

[199] See FLA. ADMIN. CODE R. 62B-41.003(4) (1995); FLA. STAT. § 370.12(1)(c)(1) (1997). Return to text.

[200] Adverse impact is defined as an impact "to the active portion of the coastal system . . . caused by coastal construction which has a reasonable potential of causing a measurable interference with the natural functioning of the coastal system." FLA. ADMIN. CODE R. 62B-41.002(28)(a) (1996). Return to text.

[201] See id. at R. 62B-41.005(17) (1995). Return to text.

[202] See id. at R. 62B-41.0055(1). This rule is used as a guideline for local government ordinances for the protection of sea turtles. See Paden E. Woodruff, III, Address at Florida State University College of Law, Ocean and Coastal Law Class (Oct., 1997). Return to text.

[203] See FLA. ADMIN. CODE R. 62B-41.0055(2) (1995). Return to text.

[204] See id. Return to text.

[205] See infra note 227 and accompanying text. Return to text.

[206] See FLA. ADMIN. CODE. R. 62B-41.0055(4) (1995). For information on the Archie Carr National Wildlife Refuge, see infra notes 259-63 and accompanying text. Return to text.

[207] FLA. ADMIN. CODE R. 62B-41.0055(5) (1995). Return to text.

[208] See id. at R. 62B-41.0055(3). Nesting activity includes "nesting beach selection, emergence of adult marine turtles from marine waters onto the beach, nest site selection, transit to and from the nest site, nest excavation, egg deposition, nest covering, incubation of eggs, hatching, hatchling emergence, orientation and the transit of hatchlings into marine waters." Id. at R. 62B-41.002(39). Return to text.

[209] Id. at R. 62B-41.0055(6)(a). Return to text.

[210] See id. at R. 62B-41.0055(6)(b). Such justification includes:

1. Economic, technological, environmental, and public health, safety and welfare factors; or,

2. A determination that the habitat within the area of the coastal construction does not support successful marine turtle nesting activity due to beach profile and substrate characteristics; or,

3. A nest relocation program exists within the area of the coastal construction permitted by [DEP] for marine turtle protection reasons unrelated to the proposed coastal construction . . . .

[211] See id. at R. 62B-41.0055(7). A significant adverse impact includes a "take" as defined in the MTPA. See id. at R. 62B-33.002(23)(b); FLA. STAT. § 370.12(1) (1997). Return to text.

[212] See FLA. ADMIN. CODE R. 62B-41.007(1)(a) (1995). Return to text.

[213] See id. at R. 62B-41.007(3). Return to text.

[214] See id. at R. 62B-41.008(1)(m)8-9 (1996). Return to text.

[215] Id. at R. 62B-41.008(1)(o). Return to text.

[216] Id. at R. 62B-41.015(1)(b). Return to text.

[217] FLA. ADMIN. CODE CH. 62B-33 (1996). Return to text.

[218] See FLA. ADMIN. CODE R. 62B-33.005(3)(a) (1996). Return to text.

[219] Id. at R. 62B-33.005(4)(g). Return to text.

[220] See id. at R. 62B-33.005(11). Return to text.

[221] See id. Return to text.

[222] See id. Return to text.

[223] Armoring includes rigid coastal structures such as seawalls, revetments, and bulkheads. See id. at R. 62B-33.0051(1)(b). Return to text.

[224] See id. at R. 62B-33.0051(3). Return to text.

[225] See id. at R. 62B-33.0051(4). The nesting season is March 1 through October 31 for Brevard, Indian River, St. Lucie, Martin, Palm Beach, and Broward Counties, and May 1 through October 31 for all other counties. See id. at R. 62B-33.002(32). Return to text.

[226] See id. at R. 62B-41.0055(4) (1995). Return to text.

[227] Id. at R. 62B-33.0051(4) (1996). Public infrastructure includes public evacuation routes, emergency facilities, bridges, utilities, hospitals, and structures of governmental significance. See FLA. STAT. § 161.085(7) (1997). Return to text.

[228] FLA. ADMIN. CODE R. 62B-33.014(1) (1997). Return to text.

[229] Id. at R. 62B-33.0051(6). In addition to armoring, other measures, including sand bags, reinforcement of foundations, and protective sand berms, can be used. See id. at R. 62B-33.0051(6)(d). Return to text.

[230] Id. at R. 62B-33.0051(6). Return to text.

[231] Id. Return to text.

[232] See id. at R. 62B-33.0051(6)(g). Return to text.

[233] See id. at R. 62B-33.0051(6)(c). Return to text.

[234] Id. at R. 62B-33.0051(6)(k)(2). Return to text.

[235] See id. at R. 62B-33.0051(6)(j). Return to text.

[236] FLA. ADMIN. CODE CH. 62B-55 (1995). Return to text.

[237] See FLA. ADMIN. CODE R. 62B-55.003 (1995). The designated counties are Bay, Brevard, Broward, Charlotte, Collier, Dade, Duval, Escambia, Flagler, Franklin, Gulf, Indian River, Lee, Manatee, Martin, Monroe, Nassau, Okaloosa, Palm Beach, Pinellas, St. Johns, St. Lucie, Santa Rosa, Sarasota, Volusia, and Walton. See id. Return to text.

[238] See id. at R. 62B-55.004 - .009. Return to text.

[239] See id. at R. 62B-55.004. Return to text.

[240] See id. at R. 62B-55.005. Return to text.

[241] See id. at R. 62B-55.006 - .007. Return to text.

[242] See id. Return to text.

[243] See id. at R. 62B-55.007(2)(h). Return to text.

[244] See id. at R. 62B-55.007(3). Return to text.

[245] See "Florida Sea Turtle Lighting Ordinances," provided by Dr. Robbin Trindell (on file with author). DEP is currently in the process of compiling an updated list. Telephone Interview with Robbin Trindell, Ph.D., Biological Administrator, Marine Turtle Protection Program, Bureau of Protected Species Management, DEP (Oct. 24, 1997). Return to text.

[246] See PALM BEACH COUNTY, FLA., LAND DEVELOPMENT CODE art. 9, § 9.1.G.1 (1996). The county also requires that existing lighting in the zone be brought into compliance with listed standards. See id. at § 9.1.H.3. Return to text.

[247] See ST. LUCIE COUNTY, FLA., LAND DEVELOPMENT CODE § 6.04.02.E.1 (1996). Return to text.

[248] See id. § 6.04.02.K. Return to text.

[249] See PALM BEACH COUNTY, FLA., LAND DEVELOPMENT CODE art. 9, § 9.1.H.5.a (1996); ST. LUCIE COUNTY, FLA., LAND DEVELOPMENT CODE, § 6.04.02.I.9.a (1996); SARASOTA COUNTY, FLA., ORDINANCE 97-082, § 5(K) (1997). Return to text.

[250] The county's current ordinance requires the use of a light meter to measure whether an artificial beachfront light is in compliance, but DEP advised the county not to require measurement with a light meter. Telephone Interview with Carol A. Lis, Senior Environmental Planner, Lee County Department of Community Development Division of Planning (Nov. 12, 1997); see also WITHERINGTON & MARTIN, supra note 8, at 8 (explaining that light meters cannot accurately gauge brightness from a sea turtle's perspective). Return to text.

[251] LEE COUNTY, FLA., ORDINANCE § 14-73(a)(2) (proposed Nov. 7, 1997). Assistant County Attorney Patrick G. White, who is working on the revision, cited difficulty in enforcing the previous ordinance as the main reason for the revision. Telephone Interview with Patrick G. White, Assistant County Attorney, Lee County, Florida, (Nov. 13, 1997). The county wants to establish a quantifiable standard that does not require the hiring of experts to prove a violation. See id. By including the rebuttable presumption in the proposed regulations, the burden of proof is shifted to the alleged violator, who must present evidence sufficient to prove there was no violation. See id. Return to text.

[252] See COLLIER COUNTY, FLA., LAND DEVELOPMENT CODE, § 3.10.7 (1994). Return to text.

[253] See SARASOTA COUNTY, FLA., ORDINANCE no. 97-082, § 9 (1997). Return to text.

[254] See ST. LUCIE COUNTY, FLA., LAND DEVELOPMENT CODE, § 6.04.02.G-I (1990, rev. 1996). Return to text.

[255] See Archie Carr Center for Sea Turtle Research (visited Nov. 1997) .< R> See NAT'L GEOGRAPHIC, supra note 40, at 94, 112. Return to text.

[257] See Archie Carr Center for Sea Turtle Research (visited Nov. 1997) .< R> See id. Return to text.

[259] See The Archie Carr National Wildlife Refuge: America's First Sea Turtle Refuge (visited Nov. 1997) <http://www.cccturtle.org/carrref .htm>. Return to text.

[260] See id. In 1994, 16,000 loggerhead nests were counted in the refuge, followed by a record 20,000 nests in 1995. In 1994, 1169 green turtles nests were counted, but fewer than 200 were found in 1995. See id. Return to text.

[261] See NAT'L GEOGRAPHIC, supra note 40, at 94, 112. Return to text.

[262] See LOGGERHEAD RECOVERY PLAN, supra note 18, at 14. Return to text.

[263] See The Archie Carr National Wildlife Refuge: America's First Sea Turtle Refuge (visited Nov. 1997) <http://www.cccturtle.org/carrref .htm>. "By mid-1996, over $60 million had been spent to purchase 4.7 miles of beachfront out of 9.3 miles targeted for acquisition (61% of available targeted land.)" Id. Amendments to H.R. 2107, which include a $2 million appropria tion for acquisition of land in the refuge, have passed through committee and may reach the House floor this session. See H.R. CONF. REP. NO. 105-337, at 123 (1997), 1997 WL 664422 (Leg. Hist.) Return to text.

[264] See 50 C.F.R. § 17.11 (1997); id. § 402.01. Return to text.

[265] See 16 U.S.C. § 1540(a) (1994). Return to text.

[266] See id. § 1540(b), (e). Return to text.

[267] See id. § 1540(g). Return to text.

[268] Telephone Interview with Sandy MacPherson, Southeast Sea Turtle Recovery Coordinator, USFWS (Nov. 12, 1997). Ms. MacPherson described two recent cases in which USFWS investigated parties for violation of the ESA for beachfront lighting problems. See id. In one case, the party fixed the lighting situation immediately. See id. In the other case, correction of the lighting problem took several years of negotiation. See id. Return to text.

[269] See News Release, U.S. Fish and Wildlife Service, Deaths of Sea Turtle Hatchlings Due to Beach Lighting Brings Civil Penalty Proceeding Against Florida Condominium Association, at 1, Sept. 20, 1994 [hereinafter News Release]. Return to text.

[270] See Notice of Violation, U.S. v. The Breakers Condominiums, Civil Penalty Proceeding, No. INV 0091 AO, U.S. Department of the Interior, April 18, 1994. Return to text.

[271] See id. Prior to the initiation of the proceeding, USFWS warned the association several times that it was violating the Brevard County lighting ordinance and the lighting was likely to result in a take, but the association ignored the warnings. See News Release, supra note 269, at 1. Return to text.

[272] See Settlement Agreement, U.S. v. The Breakers Condominiums, Civil Penalty Proceeding, No. INV 0091 AO, U.S. Department of the Interior, June 8, 1995. One reason for the settlement may have been the existence of substantial evidence suggesting that when USFWS warned the condominium property manager of the hatchling disorientation, the manager did not inform the Condominium Association Board. However, when the Board received the Notice of Violation, it took immediate corrective action. See id. at 1-2.

The penalty money was paid into the Lacey Act Reward Account, used to reward people who provide information about wildlife violations that end in arrest and conviction, forfeiture notices in newspapers, and for payment of records custodians who maintain property seized by law enforcement officers that is being used in the prosecution of cases. See Letter from Sandy MacPherson, USFWS Southeast Sea Turtle Recovery Coordinator, to Karen Moody, Environmental Specialist, DEP (June 30, 1995) (on file with author). Return to text.

[273] See 16 U.S.C. § 1539(a)(1)(B) (1994). Return to text.

[274] See id. § 1539(a)(2)(A). Return to text.

[275] See id. Return to text.

[276] Of Volusia County's 50.61 miles of coastline, only about 35.61 miles are under the regulatory authority of the county. See Environmental Assessment, supra note 149, at 1-3. Return to text.

[277] Interview with Rob Walsh, Project Coordinator, Volusia County Department of Environmental Management (Nov. 12, 1997). Return to text.

[278] See Biological Opinion, supra note 4, at 15-18. However, only about 20% of the turtle nesting on the county's beaches occurs on beaches over which the county has jurisdiction; most of the remainder occurs in Canaveral National Seashore and North Peninsula State Recreation Area. See Orientation and Training Certification Program Master Curriculum at 4-5, in Volusia County Habitat Conservation Plan, Nov., 1996. Return to text.

[279] See Loggerhead Turtle v. County Council, 896 F. Supp. 1170, 1175-76 (M.D. Fla. 1995). Return to text.

[280] See Biological Opinion, supra note 4, at 2. Return to text.

[281] See id. at 3. Return to text.

[282] See id. at 1176. Return to text.

[283] See Loggerhead, 896 F. Supp. at 1172. Return to text.

[284] See id. at 1182. The "conservation zone" extended thirty feet seaward from the dunes. See id. at 1174. Return to text.

[285] See Biological Opinion, supra note 4, at 4. The county hired two environmental consul tants to complete the plan. See id. The county also partially prepared an Environmental Assessment which USFWS was required to complete pursuant to the National Environmental Policy Act, 42 U.S.C. § 4332(C) (1998). See id. Return to text.

[286] See Federal Fish and Wildlife Permit PRT-811813, Nov. 21, 1996. One of the plaintiffs, Shirley Reynolds, stated she felt USFWS's granting of the permit was "an abandonment of an ecosytsem for political reasons," and questioned the short time frame of the permitting process. Krys Fluker, Fish and Wildlife Gives County Turtle Permit (visited Nov. 1997) . The judge postponed the trial twice to allow the county time to negotiate the permit. See id. Reynolds described as "cronyism" the county's hiring of an influential Democratic fund-raiser to lobby Washington officials for expedition of the permit process; the lobbyist himself claimed Secretary of the Interior Bruce Babbitt as "a personal friend for 20 years." Carol B. Cole, Feds to Issue Turtle Permit (visited Nov. 1997) . Return to text.

[287] See Volusia County Beach Habitat Conservation Plan at 7-3, Nov. 1996 [hereinafter HCP]. Return to text.

[288] See id. at 7-3 to 7-4. Return to text.

[289] See id. at 7-3. The Conservation Zone widths are based on sea turtle nesting records and protect the soft sand area in front of the dunes. See id. at E-7, 7-4. Return to text.

[290] See id. at 7-3. Nests laid outside the Conservation Zone will usually be barricaded and left in place. See id. at E-9. Return to text.

[291] See HCP, supra note 287, at E-6. The HCP also protects the Southeastern Beach Mouse, Least Tern, and Piping Plover. See id. at 4-19 - 4-21. The permit protects the county from liability for sea turtle injuries and deaths caused by beach driving, but not by beachfront lighting. Return to text.

[292] Interview with Rob Walsh, supra note 276. Return to text.

[293] Telephone Interview with Dawn Zattau, biologist, U.S. Fish and Wildlife Service (Nov. 12, 1997). Zattau, who worked very closely with the county on the HCP, suggests the HCP made an improvement. Id. Nevertheless, DEP received over 45 disorientation reports during the 1997 nesting season (with 341 nests in Volusia County), compared to 28 in 1996 (500 nests). See Staff Report, Hatchlings Still Emerging and Getting Disoriented (visited Nov. 1997) . The USFWS Southeast Sea Turtle Recovery Coordinator stated that, as expected, in the plan's first year of implementation there have been some problems, but Volusia County has "done pretty well." Interview with Sandy MacPherson, supra note 268. USFWS will annually review the HCP and can revoke the permit if the county does not remain in compliance with the HCP. See HCP, supra note 287, at 11-2. Return to text.

[294] See Carol B. Cole, Women File Appeal of Decision on Turtles (visited Nov. 1997) . Return to text.

[295] See Carol B. Cole, Oral Arguments Set for Dec. 11 in Volusia County Turtle Lawsuit Appeal (visited Nov. 1997) . Return to text.

[296] See Loggerhead Turtle v. County Council, No. 97-2083, 1998 WL 436547, at *26 (11th Cir. Aug. 3, 1998). The court also found that the district court "abused its discretion" in denying plaintiffs' request to add leatherback turtles as complainants. See id. Volusia County requested a rehearing by the appellate court, but the court has not yet ruled on the request. See Staff Report, County Council Looks to Stave Turtle Costs Through Consultant (visited Sept. 9, 1998) The county plans to pursue a new federal incidental take permit to protect the county against liability for turtle deaths caused by artificial beachfront lighting. See id. Return to text.

[297] FLA. STAT. § 372.0725 (1997). A third degree felony can be punished with up to five years of imprisonment and a fine of up to $5,000. See id. §§ 775.082 & 775.083 (1997). Return to text.

[298] See id. § 372.073 (1997). Return to text.

[299] Id. § 370.12(1) (1997). Return to text.

[300] See id. § 370.021(2)(a) & (b). Return to text.

[301] See id. § 370.021(2)(c)(5)(d)-(h). "Marine life" is defined as "any saltwater fish, saltwater products, or shellfish collected for . . . live specimens." See FLA. ADMIN. CODE R. 62R-5.001(2)(a) (1997). Return to text.

[302] See Bivens v. Florida, 586 So. 2d 442, 444-45 (Fla. 4th DCA 1991). When arrested, the defendant was found holding a bag full of 1088 turtle eggs. See id. at 443. The lower court fined the defendant $500, sentenced him to 60 days in jail, and fined him an additional $108,800 ($100 per egg). See id. Return to text.

[303] See FLA. STAT. § 370.021(2)(c) & (e) (1997). Return to text.

[304] Id. §403.412 (1997). Return to text.

[305] Id. § 403.412(2)(a) (1997). The complaining party may be able to obtain a temporary restraining order to prevent "immediate and irreparable harm," but cannot obtain an injunction until the person or entity charged with the violation is given 30 days to "take appropriate action." Id. at (2)(c). The Supreme Court of Florida has ruled that a plaintiff need not show a special injury to institute suit under this statute, as required by the traditional rule of standing. See Florida Wildlife Fed'n v. State Dep't of Envtl. Regulation, 390 So. 2d 64, 67 (Fla. 1980). However, mere allegation of irreparable injury not sustained by facts is not sufficient to warrant the granting of injunctive relief. See id. Return to text.

[306] See FLA. STAT § 403.412(5) (1997). Return to text.

[307] See id. § 403.412(2)(f). Return to text.

[308] See id. § 161.053(5)(c). Return to text.

[309] See id. § 370.12(1)(e). Return to text.

[310] See id. Return to text.

[311] See FLA. ADMIN. CODE R. 62B-41.0151(a) (1996). Return to text.

[312] See id. §§ 161.052(8), 161.053(8), & 161.121 (1997). A first degree misdemeanor is punishable with up to one year of imprisonment and a fine of up to $1,000. See id. §§ 775.082 & 775.083 (1997). Return to text.

[313] See id. § 161.054(1). Violators are also liable for any damage the violation causes to sovereignty lands or beaches, including animal life thereon. See id. § 161.054(2). Return to text.

[314] See GREEN TURTLE RECOVERY PLAN, supra note 33, at 16, 18, 22. "[DEP] must frequently monitor beaches and maintain strict enforcement when violations are observed." Id. at 18. Return to text.

[315] See Letter from Dr. Robbin Trindell, supra note 61. DEP recently fined a beach cleaner in Palm Beach County for violating the marine turtle protection conditions in his beach cleaning permit. See id. DEP's Bureau of Protected Species Management has formed a compliance/enforcement working group in West Palm Beach, an area with a high density of sea turtle nesting beaches, to discuss marine turtle protection requirements. See id. The Bureau will also receive funding from USFWS to assess remediation of lighting problems, including assessing compliance with DEP-approved lighting plans. See id. Return to text.

[316] See Telephone Interview with Bill Wilkinson, Environmental Specialist, Coastal Protection and Engineering, Bureau of Beaches and Coastal Systems, DEP (Nov. 14, 1997); Telephone Interview with Karen Moody, Environmental Specialist, Marine Turtle Protection Program, Bureau of Protected Species Management, DEP (Nov. 17, 1997) (stating that there are not enough enforcement personnel because there is not enough funding). Return to text.

[317] Progress of enforcement can suffer when parties who advocate "less government" are in power. See Telephone Interview with Paden E. Woodruff, III, Environmental Program Ad ministrator, Beach and Coastal Systems Management, Bureau of Beaches and Coastal Systems, DEP (Nov. 12, 1997). Return to text.

[318] See Interview with Dan Evans, supra note 149. Return to text.

[319] See Interview with Bill Wilkinson, supra note 316. Return to text.

[320] See id. Wilkinson described an additional problem with compliance in Dade County: a large number of coastal properties are owned by wealthy European investors who are not accustomed to such regulations governing their investments. See id. Return to text.

[321] See id. Return to text.

[322] See id. Return to text.

[323] See id. Return to text.

[324] See id. Return to text.

[325] See id. Return to text.

[326] See id. (stating that, realistically, DEP officials cannot check all permitted structures at all times and are only able to do spot checks for compliance). Return to text.

[327] See id. Return to text.

[328] See Interview with Dr. Robbin Trindell, supra note 245. Return to text.

[329] See Interview with Bill Wilkinson, supra note 316. Return to text.

[330] See Environmental Assessment, supra note 149, § 4.3.3.1, at 4-10. Return to text.

[331] See USFWS, Set of Findings: The County of Volusia Incidental Take Permit (PRT-811813, USFWS Log. No. 96-535D), Nov. 21, 1996, at 32. Return to text.

[332] See Environmental Assessment, supra note 149, §§ 4.3.3.1, 4.3.3.4, at 4-10, -11. Return to text.

[333] See id. § 3.2.5.4.3, at 3-22. Return to text.

[334] See NRC, supra note 16, at 14. Return to text.

[335] See id. at 121. Return to text.

[336] See Biological Opinion, supra note 4, at 31. Return to text.

[337] See 16 U.S.C. § 1536(a)(2) (1994). Return to text.

[338] See NRC, supra note 16, at 121. Return to text.

[339] See id. Return to text.

[340] See Interview with Karen Moody, supra note 316. However, in most situations, structures that would qualify for an emergency permit would likely not be located in suitable nesting habitat, because areas where such structures are necessary are subject to high rates of shoreline migration and inundation. See Letter from Dr. Robbin Trindell, supra note 61. Return to text.

[341] See Biological Opinion, supra note 4, at 31. Return to text.

[342] See Interview with Dan Evans, supra note 149; Interview with Karen Moody, supra note 316. Return to text.

[343] See Interview with Bill Wilkinson, supra note 316; Telephone Interview with Robbin Trindell, Ph.D., Biological Administrator, Marine Turtle Protection Program, Bureau of Pro tected Species Management, DEP (April 1, 1998). Dan Evans of Sea Turtle Survival League agrees with this assessment. See Interview with Dan Evans, supra note 149. This area of Florida's coast continues to be the subject of a struggle between DEP and local governments and property owners over the installation of emergency armoring. See Interview with Dr. Robbin Trindell, supra. Return to text.

[344] See Interview with Dan Evans, supra note 149. Even without the armoring structures, this is a "hot spot" coastal area, with six-foot regression rates per year. See Interview with Dr. Robbin Trindell, supra note 343. Return to text.

[345] See Interview with Karen Moody, supra note 316; Interview with Dr. Robbin Trindell, supra note 343. Return to text.

[346] See Interview with Karen Moody, supra note 316. Return to text.

[347] See FLA. ADMIN. CODE R. 62B-41.0075 (1995). Return to text.

[348] See id. R. 62B-41.0075(1)(d). Return to text.

[349] See id. R. 62B-41.0075(5)-(7). Return to text.

[350] See Interview with Karen Moody, supra note 316. Moody asserts that by the time the property owners pushed the permit request through after a two-year fight, the erosion was already severe. See id. Return to text.

[351] See id. Return to text.

[352] See Interview with Dan Evans, supra note 149. Return to text.

[353] See Interview with Karen Moody, supra note 316. Return to text.

[354] See id. Return to text.

[355] See id. Return to text.

[356] See Interview with Dan Evans, supra note 149. Return to text.

[357] See WITHERINGTON & MARTIN, supra note 8, at vi. Return to text.

[358] See Interview with Dan Evans, supra note 149. Return to text.

[359] See id. Return to text.

[360] See WITHERINGTON & MARTIN, supra note 8, at 16. Return to text.

[361] See Telephone Interview with Allison King, Environmental Analyst, Palm Beach County Department of Environmental Resources Management (Nov. 19, 1997). Return to text.

[362] See id. King admitted that the county only recently began enforcing the lighting ordinance because funds for the purpose just became available. See id. Return to text.

[363] See id. Return to text.

[364] See id. Return to text.

[365] See Interview with Anne Meylan, supra note 15; GREEN TURTLE RECOVERY PLAN, supra note 33, at 13 ("Because of slow growth rates and subsequent delayed sexual maturity, all monitoring will need to be conducted over a long period of time to establish population trends.") Return to text.

[366] See Interview with Anne Meylan, supra note 15. Return to text.

[367] See id. Return to text.

[368] See id. Return to text.

[369] See id. Past research efforts were inconsistent: volunteers at different levels of experience and training documented nests in a variety of methods. See Telephone Interview with Andrea Mosier, Environmental Specialist/GIS Coordinator, Florida Marine Research Institute (Nov. 12, 1997). Standardized monitoring procedures and data collection are necessary to recognize trends in the nesting population. See GREEN TURTLE RECOVERY PLAN, supra note 33, at 27. Return to text.

[370] See GREEN TURTLE RECOVERY PLAN, supra note 33, at 32. Return to text.

[371] See id; see also Biological Opinion, supra note 4, at 48 (stating that voluntary compliance with ordinances by beachfront property owners is essential to decreasing artificial beachfront lighting). Return to text.

[372] See WITHERINGTON & MARTIN, supra note 8, at vi. Return to text.

[373] See id; see also Telephone Interview with Carol Pratt, USFWS Refuge Ranger at Ding Darling Refuge (Nov. 12, 1997) (stating that most people do not need a law to change their lighting for sea turtles); Interview with Allison King, supra note 361 (stating that when a condominium association is informed of its noncompliance with the county lighting ordinance, the association usually will voluntarily come into compliance). Return to text.

[374] See WITHERINGTON & MARTIN, supra note 8, at vi; Interview with Karen Moody, supra note 316. Return to text.

[375] See Bureau of Protected Species Management, Sea Turtle Protection Efforts (visited Nov. 1997) <http://www.dep.state.fl.us/psm/w ebpages/turtle2.htm>. Return to text.

[376] See FLA. STAT. § 327.25 (1997). Return to text.

[377] See Velador, Caribbean Conservation Corporation Newsletter (visited Nov. 1997) . Return to text.

[378] See Lutcavage et al., supra note 108, at 390-91. But see WITHERINGTON & MARTIN, supra note 8, at 4 (stating that "watched" turtle nests may result in abbreviated nest covering and camouflaging on the part of the nesting female). Return to text.

[379] WITHERINGTON & MARTIN, supra note 8. Return to text.

[380] See VAN METER, supra note 1, at 45-46; Carol B. Cole, Turtles Face the Light for Life (visited Nov. 1997) . Return to text.