Florida Court Upholds Dock Permit Denial
Manatees Protected from Recreational Hazards on Inland Waters

Florida Marine Contractors, et al. v. Williams, 378 F.Supp.2d 1353 (M.D. Fla. 2005)

Emily 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 Florida’s 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 manatee.

Background
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 Florida’s 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 Florida’s inland waters, and, therefore, the Service unlawfully applied the Act’s 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 Service’s consideration of permit applications, and (2) whether the MMPA applies to Florida’s inland waters without limitations for hazard attributable to recreational activities. The court held in the affirmative for both issues.

The 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 man’s 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…below their 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…from the adverse effect of man’s 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.

The Court’s Reasoning
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 state’s inland waters when such takings are caused by recreational activities. The issue that the court addressed then became “whether section 1371 applies to a state’s inland waters without limitations for hazards attributable to recreational activities.”9 Here, the court found that Congress did address the precise question before them.

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…Congress clearly 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 state’s 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 Act’s objective by permitting ‘man’s activities’ of a recreational nature to continue unabated in areas making up marine mammal habitats.”13

Conclusion
Finding that the Service’s construction and application was in accordance with the clear intent of Congress as expressed in provisions of the MMPA, the court upheld the Service’s decision to deny the plaintiffs’ permit.

ENDNOTES
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 at 1356.
5. 16 U.S.C. § 1361(1).
6. Id. § 1361(2).
7. Id.
8. Id. § 1371(a)(5)(A).
9. 378 F.Supp.2d at 1360.
10. Id. at 1361.
11. Id. at 1362.
12. Id. at 1364.
13. Id.