Endangered Species Law & Policy

A pair of non-profit organizations recently served a 60-day notice of intent (Notice) to file a citizen suit against Hilton Hotels, Bahia Mar Resorts, and the Suntex Marinas (collectively, the Resorts) under section 9 of the Endangered Species Act (ESA) for the alleged take of the loggerhead sea turtle (Caretta caretta) and green sea turtle (Chelonia mydas) in Florida. ESA section 9 prohibits the unpermitted “take” of any endangered species, and the ESA defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,” or an attempt to do the same. 16 U.S.C. § 1532(19). Unless the Resorts take corrective actions, the potential plaintiffs intend to file suit against the Resorts for operating artificial lights.

The potential plaintiffs claim the artificial lights from the Resorts disorient sea turtle hatchlings as they emerge from their nests causing them to crawl away from the ocean. As a result, the potential plaintiffs claim the hatchlings risk getting struck by vehicles or dying from exhaustion or dehydration. The Notice of intent mentions that the U.S. Fish and Wildlife Service identified artificial lighting as a factor contributing to the sea turtles’ federally threatened status. According to the Notice, over 3,000 loggerhead and sea turtle hatchlings have been disoriented between 2016 and August 2020.

To prevent hatchling disorientation, the potential plaintiffs offer several corrective actions for the Resorts to implement on existing and new developments. For existing developments, the Notice suggests:

• installing treatments on windows and doors that face the beach;
• screening outdoor security lights;
• placing shields over lights; and
• turning off lighted signs during nesting seasons.

For new developments, the Notice recommends that the Resorts consider:

• installing shields on exterior lights so it shines downward;
• recessing lights;
• using only low-wattage, wildlife-certified, amber-colored LED bulbs in all fixtures with non-reflective surfaces;
• mounting lights as low as possible;
• installing motion detectors for security and safety lights;
• using full cutoff lighting;
• turning off nonessential lighting, including lighted signs; and
• applying shade screens or window tinting to block interior lights.

The potential plaintiffs suggest that implementing the proffered corrective actions would ensure compliance with the ESA.

With the availability of wildlife-friendly light alternatives, we may see more instances where private litigants and regulators look closely at artificial lighting operations that achieve ESA compliance. For example, the Notice identifies specific properties that have already retrofitted their establishments with wildlife-friendly lighting. Consequently, this potential lawsuit may influence the types of alternative land- and shoreline-use activities that agencies or developers might consider during the local planning process or when seeking permits. It will be interesting to see whether the case becomes moot or continues to ripen because the resolution will be instructive for managing and preventing ESA liability risks.