Court Upholds Dock Permit Denial
Manatees Protected from Recreational Hazards on Inland
Marine Contractors, et al. v. Williams, 378 F.Supp.2d 1353 (M.D.
Plett-Miyake, 3L, Vermont Law School
On July 13, 2005,
the U.S. District Court in Tampa, Florida held that the U.S. Fish and
Wildlife Service was correct in denying an application to construct
recreational docks and similar structures on Floridas inland waterways
after determining that such action was likely to have more than a negligible
impact on the West Indian manatee, commonly known as the Florida
Plaintiffs, who are landowners, marine contractors, and a marine contractors
industry association, sought Clean Water Act § 404 permits from
the U.S. Army Corps of Engineers to construct docks and other similar
structures on Floridas inland waterways. The docks were to be
used for recreational purposes, including the operation and docking
of recreational motorboats. The waterways in question are inhabited
by Florida manatees.
The Corps determined that the issuance of the permit might threaten
the Florida manatee, a listed species under the Endangered Species Act
(ESA). This finding triggered an ESA § 7 consultation with the
U.S. Fish and Wildlife Service (Service), through which the Service
found that the construction and use of the docks would result in incidental
taking of manatees under the Marine Mammal Protection Act (MMPA).1
Due to an absence of necessary precautions2 the Service
found that the proposed project would have more than a negligible impact
on the species. Based on these findings, the Service concluded that
the permit application should be denied.
The plaintiffs challenged the denial under the Administrative Procedure
Act,3 arguing that the MMPA does not apply to
residential docks built on Floridas inland waters, and, therefore,
the Service unlawfully applied the Acts provisions to deny their
permit applications.4 The issues before the court
were: (1) whether the MMPA provisions establishing a moratorium on taking
and importation of marine mammals and generally banning taking permits
for marine mammals correctly govern the Services consideration
of permit applications, and (2) whether the MMPA applies to Floridas
inland waters without limitations for hazard attributable to recreational
activities. The court held in the affirmative for both issues.
Marine Mammal Protection Act
The MMPA was passed by Congress in 1972 to protect marine mammal
species and population stocks that are or may be in danger of
extinction or depletion as a result of mans activities.5 Stating its aim as preventing marine mammals from diminish[ing]
beyond the point at which they cease to be a significant functioning
element in the ecosystem of which they are a part, and
optimum sustainable population,6 Congress specifically
recognized the importance of varied habitats: [e]fforts should
be made to protect essential habitats, including the rookeries, mating
grounds, and areas of similar significance for each species
the adverse effect of mans actions.7
Congress imposed a moratorium on the taking and importation of marine
mammals, banning the issuance of all take permits in § 1371. While
there are a number of exceptions, all are very limited and are to be
narrowly applied. Section 1372(a)(2) makes it unlawful for any
person or vessel or other conveyance to take any marine mammal in waters
or on lands under the jurisdiction of the United States. Various
other provisions grant exclusive jurisdiction over marine mammal conservation
and management to the federal government, preempting state authority.
Neither party to the case disputed the factual finding that the proposed
project was likely to harm and result in the incidental take of manatees
at levels exceeding nominal harm. Rather, they disagreed over whether
the MMPA could properly be used to deny the permit, based on possible
jurisdictional limitations in the statute. The question was whether
an exception in the MMPA that allows incidental takings having only
a negligible impact on a marine mammal species8 applied to the plaintiffs proposed activities.
The plaintiffs did not make the argument that the exception applied
to them. Rather, they argued that the MMPA does not apply to takings
that occur in a states inland waters when such takings are caused
by recreational activities. The issue that the court addressed then
became whether section 1371 applies to a states inland waters
without limitations for hazards attributable to recreational activities.9
Here, the court found that Congress did address the precise question
The court referred to language in the statute that recognized the importance
of the entire ecosystems of which marine mammals are a part, the unambiguous
intent of the MMPA to protect those marine mammals and stop their depletion,
the usurpation of state authority over the species by federal management,
and numerous findings from legislative history to support the finding
that Congress clearly expected the protections of the Act to apply
to all areas within the states, including internal waters.10 The court also commented that the plaintiffs suggestion that the
MMPA does not apply to inland waters weakens the protections afforded
to marine mammals by nullifying state laws and failing to replace them
with federal laws. This interpretation, the court opined, would clearly
lead to an absurd result.
After determining that the clear objective of the MMPA is to protect
marine mammals from man-made dangers in all of their natural habitat,
including inland waters, the court turned to § 1371. The
moratorium on takings and permits in section 1371 undoubtedly was designed
to further the objectives set forth in section 1361
designed section 1371 to end the taking of marine mammals without regard
to the nature of the activity that caused the taking or the precise
location within the habitat where the taking has occurred.11 The court found that the exception did not apply here because it had
been factually determined that the project would result in a more than
negligible impact, and because applying the moratorium provisions
of section 1371 to a states inland waters would not constitute
an expansion of the geographic scope of the Act.12 In fact, [t]o hold that section 1371 does not extend to certain
areas inhabited by marine mammals would divorce this section from the
Acts objective by permitting mans activities
of a recreational nature to continue unabated in areas making up marine
Finding that the Services construction and application was in
accordance with the clear intent of Congress as expressed in provisions
of the MMPA, the court upheld the Services decision to deny the
1. 16 U.S.C. §§ 1361-1421h. The MMPA defines
take as to harass, hunt, capture, or kill, or attempt
to harass, hunt, capture or kill any marine mammal. 16 U.S.C.
§ 1362(13). Takings that are incidental to otherwise lawful activities
are permitted under certain conditions. 50 C.F.R. § 18.27.
2. For example, speed zones, sign postings, and enforcement
that would protect the manatees in the area from harm.
3. 5 U.S.C. § 706.
4. 378 F.Supp.2d
16 U.S.C. § 1361(1).
Id. § 1361(2).
8. Id. § 1371(a)(5)(A).
9. 378 F.Supp.2d at 1360.
Id. at 1361.
11. Id. at 1362.
12. Id. at 1364.