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Sierra Club v. Kolnitz

United States District Court, D. South Carolina, Charleston Division

August 14, 2017

SIERRA CLUB AND SOUTH CAROLINA WILDLIFE FEDERATION, Plaintiffs,
v.
ELIZABETH VON KOLNITZ, in her official capacity as Chief of the Office of Coastal Resource Management of South Carolina Department of Health and Environmental control, CATHERINE HEIGEL, in her official capacity as the Director of South Carolina Department of Health and Environmental Control, and SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This matter is before the court on plaintiffs Sierra Club and South Carolina Wildlife Federation's (collectively, “plaintiffs”) motion for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure as well as defendants Elizabeth Von Kolnitz, in her official capacity as Chief of the Office of Coastal Resource Management of the South Carolina Department of Health and Environmental Control (“OCRM”), Catherine Heigel, [1] in her official capacity as the Director of the South Carolina Department of Health and Environmental Control, and the South Carolina Department of Health and Environmental Control's (collectively, “DHEC”) motion to dismiss. For the reasons set forth below, the court denies DHEC's motion to dismiss and grants plaintiffs' motion for preliminary injunction.

         I. BACKGROUND

         This case arises out of the use of wave dissipation devices (“sea walls”) in Isle of Palms and Harbor Island, South Carolina. Under the South Carolina Coastal Zone Management Act (“CZMA”), the construction of any new erosion control structures or devices on the beach is prohibited. S.C. Code § 48-39290(B)(2)(a). The sea walls were authorized by the South Carolina General Assembly under the budget proviso to the 2014-15 and 2015-16 budgets, and fall under the “research activity” exception to the CZMA which allows for research activity to be conducted on beaches without first obtaining a DHEC permit. S.C. Code § 48-39290(D)(2). The sea walls, which consist of vertical plastic pylons drilled into the sand and horizontal plastic bars stacked within the pylons, were installed on an experimental basis under the auspices of the budget proviso and authorized to remain in place for a period of one year. DHEC installed the temporary sea walls on certain beaches in Harbor Island and Isle of Palms in 2015, as part of a research project conducted by the Citadel.

         Two public interest environmental organizations, the South Carolina Wildlife Federation and the Sierra Club, filed this action challenging the sea walls as a violation of the Endangered Species Act, 16 U.S.C. §§ 1531, et seq. (“ESA”), alleging that the sea walls interfered with the breeding patterns of various species of sea turtles that are listed as endangered under the ESA. South Carolina is home to the following marine turtle species: the Loggerhead sea turtle (caretta caretta), the Kemp's Ridleys sea turtle (Lepidochelys kempis); the Green sea turtle (Chelonia mydas); and the Leatherback sea turtle (Dermochelys coriacea) (collectively, “sea turtles”). All of these species of turtles are listed as either endangered or threatened under the ESA.

         An “endangered species” is one that is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). A “threatened species” is one that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U .S.C. § 1532(20). Under the ESA, it is unlawful for any “person” to “take” endangered or threatened species. 16 U.S.C. § 1538(a)(1)(B) (the “take” prohibition); 50 C.F.R. § 17.31(a). It is equally unlawful for any “person” “to attempt to commit, solicit another to commit, or cause to be committed” a “take.” 16 U.S.C. § 1538(g). Defined broadly, “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect[.]” 16 U.S.C. § 1532(19). “Harm” is defined in the regulations as “an act which actually kills or injures wildlife” and includes “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. “Harass” is defined 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. The ESA defines “person” to include “an individual, corporation . . . any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, ” and “any State, municipality, or political subdivision of a State.” 16 U.S.C. § 1532(13).

         Plaintiffs argue that the sea walls interfere with sea turtle nesting activities, causing a “take” of sea turtles under the ESA. Sea turtles spend much of their lives in the ocean, with the exception of nesting-when female sea turtles crawl out of the ocean and onto the beach to dig a nest and lay eggs-and hatching-when sea turtle hatchlings crawl back into the sea. The sea turtles in question nest along sections of beaches in Isle of Palms and Harbor Island, and plaintiffs allege that the sea walls interfere with their nesting season because the sea turtles are physically blocked by the sea walls as they attempt to crawl onto the beaches to nest, a practice known as “false crawls.” The sea turtle nesting season in South Carolina is from the beginning of May through late August.

         On December 6, 2016, plaintiffs filed this suit, seeking an injunction requiring the removal of existing sea walls and prohibiting DHEC from authorizing the placement of sea walls in the future, declaratory relief that the sea walls violate the ESA and that any devices that block turtle access to the dry sand beach must be built under an incidental take permit from the United States Fish and Wildlife Service (“FWS”), as well as fees and costs. On January 30, 2017, DHEC filed a motion to dismiss. Plaintiffs responded on February 23, 2017. DHEC replied on March 16, 2017. On July 21, 2017, plaintiffs filed a motion for preliminary injunction requiring the immediate removal of all temporary sea walls from the two beaches where they have been constructed and for the sea walls to remain fully removed from the beach during all periods of potential sea turtle nesting that occur during the pendency of this case. DHEC filed a response to the motion for preliminary injunction on August 4, 2017. Plaintiffs replied on August 9, 2017. The court held a hearing on these motions on August 11, 2017. The motion to dismiss and the motion for preliminary injunction have been fully briefed and are now ripe for the court's review.

         II. STANDARD

         A. Motion to Dismiss

         A Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) [] does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). To be legally sufficient, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         A Rule 12(b)(6) motion should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle him to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6) motion, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         B. Preliminary Injunction

         “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” United States v. South Carolina, 840 F.Supp.2d 898, 914 (D.S.C. 2011) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). As the Supreme Court has noted, a preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22.

         III. DISCUSSION

         This matter is before the court on two motions. DHEC seek to dismiss the case, citing Burford abstention. Plaintiffs seeks preliminary injunctive relief pursuant to Federal Rule of Civil Procedure 65 to require DHEC to remove the sea walls. The court addresses the motion to dismiss first, and then turns to plaintiffs' motion for preliminary injunction.[2]

         A. ...


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