15-003163 Lise Bauman vs. Florida Fish And Wildlife Conservation Commisssion Status: Closed Recommended Order on Friday, October 16, 2015.

Summary: Applicant demonstrated entitlement to the issuance of a "take" permit from the Florida Fish and Wildlife Conservation Commission.

ST ATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LISE BAUMAN ,

Petitioner,

vs. Case No. 1 5 - 3163

MARCO RIVER MARINA/ROSE MARINA

AND FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION ,

Respondents ,

/

RECOMMENDED ORDER

Pursuant to notice, a final hearin g was held in this case

on August 24, 2015, by video teleconference in Tallahassee,

Florida and Ft. Myers , Florida, before E. Gary Early, a

designated Administrative Law Judge of the Division of

Administrative Hearings .

APPEARANCES

For Petitioner: Lise Jay Bauman

Unit V - 8

167 North Collier Boulevard

Marco Island, Florida 34145

For Respondent Marco River Marina/Rose Marina :

Daniel High

951 Bald Eagle Drive

Marco Island, F lorida 34145

F or Respondent F lorida Fish and Wildlife Conservation

Commission :

Ryan Smith Osborne, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, F lorida 32399 - 1600

STATEMENT OF THE ISSUE

The purpose of this hearing is to determine whether Permit

No. LSNR - 15 - 00004 , for the removal of inactive burrowing owl

nests , should be issued as proposed by the Florida Fish and

Wildlife Conservation Commission (Commission) .

PRELIMINARY STATEMENT

On Janua ry 9, 2015, the Commission issued a permit ,

No. LSNR - 15 - 00004 ( Permit) , to Respondent , Marco River

Marina/Rose Marina (Respondent or Rose Marina) . The P ermit

authorized the destruction of two inactive nest burrows of the

burrowing owl , a state - designated species of special concern .

The Permit did not authorize the killing of birds or destruction

of active nests or e ggs.

A n E lection of R ights and Petition for Administrative

Proceeding requesting a hearing to challenge the Permit , dated

March 1, 2015, w as filed by Petitioner and , thereafter , referred

to the Division of Administrative Hearings on J une 2 , 201 5 .

On August 20, 2015, the Permit applicant, Rose Marina, was

added as a party to the proceeding.

The final hearing commenced as scheduled on August 24,

2015, and was completed on that date.

At the hearing, the Commission took the lead in presenting

evidence of Rose MarinaÓs entitlement to the Permit and called

as witnesses : Angela Williams, the CommissionÓs p rotected

s pecies p ermitting c oordinator for t errestrial and a vian

s pecies; Nancy Richie, an environmental consultant and, at all

times relevant to this proceeding, an environmental specialist

for the City of Marco Island; Daniel High, Rose MarinaÓs general

manager; and Lt. Patrick Wal sh, the CommissionÓs field

supervisor for the Ft. Myer s office. Ms. Williams and

Ms. Richie were tendered as expert s and accepted as having the

scientific, technical, or other specialized knowledge to assist

the undersigned in understanding the evidence o r in determining

a fact in issue . CommissionÓs Exhibits B through H were

received in evidence.

Petitioner testified on h er own behalf , and called Rhonda

McAuliffe Gloodt , a resident of Marco Island, as a witness .

PetitionerÓs Exhibits A through K and M were received in

evidence .

A one - volume Transcript was filed on September 29 , 2015 .

T he parties timely filed Proposed Recommended Orders, which have

been considered in the preparation of this Recommended Order .

References to statutes are to Florida Statutes (2015)

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner , Lise Bauman was, at all times pertinent to

this proceeding, a resident of Marco Island. She is employed in

the tourism industry as a bartender on a dinner cruise boat.

2. Respondent Marco River Marina/Rose Marina, owns and

operates a marina on Marco Island , Florida, which includes a

dry - storage boat facility. The m arina is located at 951 Bald

Eagle Drive, Marco Island , Florida. A vacant lot at

865 Magnolia Court, Marco Is land, Florida, is contiguous to the

marina. Both parcels are under common ownership.

3 . The Florida Fish and Wildlife Conservation Commission

is an agency of the state , created pursuant to Article IV,

s ection 9 of the Florida Constitution , to Ð exercise the

regulatory and executive powers of the state with respect to

wild animal life and fresh water aquatic life . Ñ

4 . The burrowing owl ( Athene cunicularia ) has been

designated by the Commission as a species of special concern.

The burrowing owl is not a f ederally - designated endangered or

threatened species.

5 . Burrowing owls are, as their name implies, ground -

nesting owls that excavate burrows in open, vacant areas.

Burrows can extend up to eight feet in length. Most burrows

have a single entrance /exit.

6. Burrowing owls range throughout all 67 Florida

counties. T heir numbers have dwindled in the Panhandle and

North Central Florida regions, and their population remains

heaviest in South Florida.

7 . On Marco Island, rights - of - way, parks, and vacant lots

provide habitat for nesting owls. As vacant lots are

constructed upon, habitat options on Marco Island are reduced.

Nonetheless, despite significant construction and development on

Marco Island over the past 15 years, active owl burrows on Marco

Island have increased in number during that period from roughly

30 to between 100 and 150. The increase is largely the result

of compliance with Commission conservation rules, education of

property owners and developers , and identification and marking

of burrow sites to protect from inadvertent destruction.

8. Burrowing owls are quick to relocate if their burrows

are disturbed or become unsuitable. If there are suitable

nesting sites nearby -- generally any open, treeless area with

well - drained soils -- burrowing owls will not hesitate to move

and construct new burrows.

9 . The normal breeding season for burrowing owls in the

area runs from February 15 through July 10, although weather and

other conditions may result in breeding before or after the

normal season. However, Ms. Richie, who had surveyed burrowing

owl sites on Marco Island for the previous 15 years, never

observed owl chicks or fledglings in the months of December or

January.

10 . In order t o give burrowing owls that are displaced as

the result of a ÐtakeÑ permit time to relocate, permitting is

typically done before breeding season starts. Nonetheless, the

Commission typically requires applicants to provide a report

from an environmental con sultant to confirm the status of

burrows on a parcel slated for development. If the report

reveals that burrows contain active nests, the proposed

activities will not be permitted.

11 . The parcel at 865 Magnolia Court was, at the time the

Permit application was filed, an undeveloped grass lot. It was

mowed regularly, and ha d no mid - story vegetation. T he soil on

the property is regarded as disturbed or urban soil.

1 2 . Burrowing owls were present at 865 Magnolia Court f or

the last nine years. The lot had two burrowing owl burrow areas

which had been individually marked by placing PVC pipes at the

corners, with nylon cords to ÐencloseÑ each protected area.

Each of the marked areas contained two burrows in close

proxim ity. Thus, although there were two defined areas, there

were four individual burrows.

1 3 . Rose Marina is engaged in a marina renovation project,

part of which involves the reconstruction of its dry - storage

building at 951 Bald Eagle Drive . During the period of

renovation, boats stored in the dry - storage building will have

to be temporarily stored at a different location. In order for

Rose Marina to maintain its customers and earn income to remain

in business, the boats must be stored on its property, rather

than sent to other facilities or locations.

1 4 . It was determined that the most appropriate place for

the temporary boat st orage was the contiguous lot at

865 Magnolia Court .

1 5 . Prior to making application for the Permit, Mr. High

contacted M s. Richie to discuss the owl burrow s on the

865 Magnolia Court lot . Ms. Richie was familiar with the

burrows on the property, having originally marked the m nine

years previously. She is well aware of the physical features

and animal behaviors that are indicative of an active nesting

burrow.

1 6 . As part of their initi al discussion, Mr. High and

Ms. Richie discussed the possibility of altering the proposed

boat storage area to avoid the burr ows. However, due to the

massive nature of the project and the location of the burrows in

the center of the property, avoidance was determined to be

impractical.

1 7 . Ms. Richie inspected the property on November 5, 2014 ,

to assess whether the burrows we re active or inactive. She knew

from her regular monitoring of the property that the burrows had

not been used for nesting during the 2013 and 2014 breeding

seasons .

18. A t the time of Ms. RichieÓs inspection , the burrow

areas were inhabited by a single adult owl. The owl exhibited

no breeding behavior . Male owls will ÐdecorateÑ the mound of a

burrow with feathers, vegetation, bits of trash, and other

materials designed to attract the attention of females

interested in courtship, and offer some degree of camouflage for

an active nesting burrow. The single owl on the property had

not decorated the burrows to suggest that the y were active.

1 9 . When nests are active, male owls will spread their

wings and offer vocal protestations if approached. The owl at

865 Magnolia Court exhibited no such behavior.

20 . Paired owls usually sit together. Even if a female

owl is on a nest in an active burrow , she will frequently peek

out to see what is occurring. Ms. Richie saw no evidence of

another owl at the burrow areas .

21 . As a result of her inspection, Ms. Richie provided

Rose Marine with a short report , which included her conclusion

that Ðthis burrow, u nder State definitions is considered

Òinactive.ÓÑ

22 . The on - line application for the Permit was submitted

on November 6, 2014. The application identified the applicant

as Marco River Marina . The project address was given as

951 Bald Eagle Drive, Mar co Island, Florida , which is th at of

the marina itself . However, the application provided the

projectÓs township/section/range, latitude and longitude

coordinates, and Collier County parcel ID number. T hose

identifying numbers describe the parcel at 865 Magnolia Court.

2 3 . Given the fact th at 951 Bald Eagle Drive and

865 Magnolia Court are conti guous lots, many, including

Ms. Richie, regard them as a single parcel and refer to them

collectively as Rose Marina.

2 4 . The application for th e Permit included a ground - level

photograph of the property, and an aerial photograph of the

property with depiction s of the burrow areas to be affected and

the proposed gravel path designed to serve the boat storage

area . Furthermore, Ms. RichieÓs report was cle ar as to location

of the burrow areas proposed for removal. Th us, th e Commission

understood which parcel was the subject of the authorization.

2 5 . A lthough the application incorrectly gave the project

street address as 951 Bald Eagle Drive, instead of 865 Magnolia

Court, there was no evidence that anyone was confused as to the

location of the burrows to be affected . Thus, the street

address error in the P ermit is of no substantive effect and does

not form a basis for denial.

2 6 . The property contained two marked and staked owl

burrow areas, each of which contained two burrows. Nonetheless,

the Permit authorized the destruction of the Ð[t]wo (2) inactive

burrowing owl nest burrow(s).Ñ

2 7 . The on - line application form has no field for

identifying the number of burrows, but required only i nformation

as to the number of adult birds, eggs, and flightless chicks.

Rose MarinaÓs information as to those application fields was

accurate.

2 8 . The application included a map which d epicted the

burrow areas in the correct location. Having a single reference

point is not uncommon for burrow areas with more than one

burrow. In that regard, when mapping burrows for the City of

Marco Island , Ms. Richie would Ðjust put one dot for one bu rrow

area.Ñ

2 9 . The application included a high - quality color

photograph of the two marked and staked burrow areas , and a

marked aerial photograph of the parcel that accurately depicted

the areas. Ms. Richie Ós report noted the existence of four

individual burrows, only two of which she described as well

maintained.

30 . T he error in the Permit as to the number of burrows

appears to be one of a misunderstanding of the distinction

between the burrows and the burrow areas. There was clearly no

intent to mislead the Commission or anyone else as to the number

of burrows on the property. Given that all of the burrows were

inactive, whether the number of affected burrows was two or four

would not have made a difference in the CommissionÓs decision to

issue the Permit . Thus, the error in the Permit as to the

number of burrows is of no substantive effect and does not form

a basis for denial.

31 . The P ermit described the inactive burrow destruction

as being done in association with Ðseawall renovati ons,Ñ rather

than for a gravel path and boat storage. The error was a

scrivenerÓs error on the part of the Commission. The

application and supporting documentation, including the aerial

photograph and emails from Mr. High to the CommissionÓs

protected sp ecies permitting office, clearly described the

project as a temporary boat storage lot.

32 . Upon becoming aware of the scrivenerÓs error, and

weeks before the filing of the petition, Ms. Williams struck the

term Ðseawall renovations,Ñ and re - issued the P ermit with the

following errata: ÐFWC oversight; approved activity was

construction of gravel walkway for temporary storage of boats.

Angela Williams 2/17/2015.Ñ The error had no effect on the

issuance of the Permit . Thus, the error in the uncorrected

Permit as to the nature of the project is of no substantive

effect, and does not form a basis for denial.

3 3 . Ms. Richie monitored the 865 Magnolia Court burrows on

a weekly basis from her November 2014, inspection through

January 2015. She observed no physical or behavioral evidence

of active nesting, saw nothing to suggest that the burrow s

contained eggs or flightless young, and was confident that only

a single adult owl inhabited the two burrow areas. As a result,

she concluded that the burrows remained inactive up through the

date of their destruction. Her testimony was persuasive, and is

credited.

3 4 . The Permit was issued and became effective on

January 9, 2015.

3 5 . The destruction o f the burrows was done on January 15

and 16, 2015. The act was accomplished by means of a hand

shovel. Mr. High indicated that the excavation was done slowly

and carefully so as to minimize the risk if an owl was in any of

the burrows. No owls , nests, o r eggs were encountered in the

burrows.

3 6 . Rose Marina personnel fashioned a wooden rod with a

cloth duct - taped to the end to probe the burrow before digging

down with a shovel , and to flush owls away from the site while

the excavation was ongoing. T hat method was determined to limit

the potential for inju ry to any owls . No owls were encountered

in the burrows.

3 7 . At no time during the process of excavation did an owl

retreat into a burrow. Thus, there was no need to insert a

burrow scope or fl exible tubing into the burrow to flush an owl

from the burrow.

3 8 . After the completion of the burrow removal, a fence

was constructed around the perimeter of the area used to store

boats, and the gravel driveway through the middle of the area

was put in. The gravel driveway covers the area previously

occupied by the burrows.

3 9 . At the conclusion of the marina renovation activities,

the lot at 865 Magnolia Court will be restored to its previous

condition.

40 . The preponderance of the competent, substantial

evidence presented at the hearing provides reasonable assurance

that the activities authorized by the Permit will have no impact

on the owl that was present at the burrow areas in November

2 014, and will not be detrimental to the survival potential of

the species.

41 . Petitioner observed the permitted activity at some

unspecified time after its commencement. On February 9, 2015,

after having made a request for public records, Petitioner

re ceived a copy of the Permit. The Permit included a notice of

rights which provided, among other information, that Ð[a] person

seeking a hearing on FWCÓs action shall file a petition for

hearing with the agency within 21 days of receipt of written

notice o f the decision.Ñ Petiti onerÓs petition was dated

March 1, 2015. The date of its receipt by the Commission is

unknown, since it bears no form of date - stamp or

acknowledgement , nor is there competent, substantial, non -

hearsay evidence in the record to esta blish the date of receipt.

42 . Being employed in the tourism industry, Petitioner

understands that tourists enjoy seeing and photographing

burrowing owls, which enhances Marco IslandÓs reputation as a

desirable destination. PetitionerÓs interest in the burrowing

owls is related to her desire to ensure that tourists continue

to come to Marco Island, thus sustaining her livelihood.

Petitioner expressed no more than a general Ðinterest in

wildlife,Ñ and engaged in no activities designed to protect or

perp etuate the burrowing owl species.

43 . Petitioner raised issues regarding approval by the

City of Marco Island of a temporary - use permit for Rose Marina

to use the vacant lot at 865 Magnolia Court for boat storage.

There was no dispute that the City approved the temporary - use

permit, with the dispute being whether the burrow removal under

the Commission Permit was done prior to the CityÓs approval of

865 Magnolia Court as a boat storage area . Approval by the City

is not a condition for issuance of th e Permit and is not before

the undersigned for disposition. Thus, the City of Marco Island

temporary - use permit is not relevant to this proceeding.

CONCLUSIONS OF LAW

4 4 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

Timeliness

4 5 . The Commission has raised the issue of the timeliness

of the petition in its Proposed Recommended Order, and asserts

that Petitioner should have known of the permitted activities

shortly after their occurrence on January 15 and 16, 2015 .

Alternatively, the Commission asserts that Petitioner should

have filed a petition within 21 days of her receipt of the

Permit and notice of rights.

4 6 . It is well establishe d that Ð[a]n agency seeking to

establish waiver based on the passage of time following action

claimed as final must show that the party affected by such

action has received sufficient notice to commence the running of

the time period within which review mu st be sought.Ñ Henry v.

DepÓt of Admin. , 431 So. 2d 677, 680 (Fla. 1st DCA 1983); see

also Bryant v. DepÓt of HRS , 680 So. 2d 1144 (Fla. 3d DCA 1996);

Symons v. DepÓt of Banking and Fin. , 490 So. 2d 1322, 1323 (Fla.

1st DCA 1986). While a waiver of the r ight to challenge a

permit is commonplace, when the waiver is the result of the

passage of time, and not the result of having received a notice,

Ð[w]aiver, [however,] is not a concept favored in the law, and

must be clearly demonstrated by the agency [or o ther party]

claiming the benefit.Ñ DepÓt of Envtl. Reg. v. Puckett Oil Co. ,

577 So. 2d 988, 993 (Fla. 1st DCA 1991); see also Terwilliger v.

South Fla. Water Mgmt. Dist. and Fla. Power and Light Co. , Case

No. 01 - 1504, ¶ 125 (Fla. DOAH Feb. 27, 2002; SFWMD Apr. 16,

2002)(Ð [W] hile [petitioner] had the burden to prove the merits

of his Petition, including his standing, . . . [respondent] had

the burden to prove receipt of actual notice more than 21 days

before the filing of [petitionerÓs] Petition.Ñ).

4 7 . The burden of proving that Petitioner had adequate

notice of the issuance of the Permit more than 21 days prior to

the filing of the Petition is on Respondent and the Commission.

4 8 . Respondent and the Commission failed to prove the

facts necessary to s upport a waiver of the right to challenge

the Permit based on actual knowledge.

4 9 . On February 9, 2015, Petitioner received a copy of the

Permit and notice of rights that established her right to

contest the Permit by filing a petition within 21 days of

receipt of the notice. The 21st day from February 9, 2015, was

March 1, 2015, a Sunday. Thus, the last date for filing the

petition was Monday, March 2, 2015.

50 . The petition was dated March 1, 2015. As set forth in

the Findings of Fact, t here was no ÐreceivedÑ stamp or other

evidence to establish when the petition was received by the

Commission, and such information would not be reasonably

available to Petitioner.

51 . Rule 28 - 106.111 of the Uniform Rules of Procedure,

entitled Point of Entry into Proceedings and Mediation,

provides, in pertinent part, as follows:

(1) The notice of agency decision shall

contain the information required by Section

120.569(1), F.S. . . .

(2) Unless otherwise provided by law,

persons seeking a hearin g on an agency

decision which does or may determine their

substantial interests shall file a petition

for hearing with the agency within 21 days

of receipt of written notice of the

decision.

* * *

(4) Any person who receives written notice

of an agency decision and who fails to file

a written request for a hearing within 21

days waives the right to request a hearing

on such matters. This provision does not

eliminate the availability of equitable

tolling as a defense.

52 . Section 120.569(2)(c) provi des that Ð[u]pon the

receipt of a petition or request for hearing, the agency shall

carefully review the petition to determine if it contains all of

the required information. A petition shall be dismissed if it

is not in substantial compliance with these requirements or it

has been untimely filed .Ñ (Emphasis added ). The Commission

presumably performed its duty under that section , and determined

that grounds did not exist to dismiss the petition.

53 . Based on the foregoing, it is concluded that the

pet ition was timely filed.

Standing

5 4 . T he person asserting party status has the burden of

demonstrating the requisite standing to initiate and maintain

this proceeding. Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't of

Envtl. Prot. , 14 So. 3d 1076, 1078 (Fla. 4th DCA 2009); Agrico

Chem. Co. v. Dep't of Envtl. Reg. , 406 So. 2d 478, 482 (Fla. 2nd

DCA 1981).

Marco River Marina/Rose Marina

5 5 . Section 120.569(1) provides, in pertinent part , that

Ð[t]he provisions of this section apply in all proceedings in

which the substantial interests of a party are determined by an

agency.Ñ Rose Marina is a Ð[s]pecifically named person[] whose

substantial interests are being determined in the proceeding Ñ

and is , thus , a party as defined in section 120.52(13)(a). See

Maverick Media Group v. DepÓt of Transp. , 791 So. 2d 491 (Fla.

1st DCA 2001).

Petitioner

5 6 . PetitionerÓs standing is gauged by the two - pronged

test for standing in formal administrative proceedings first

established in the seminal case of Agrico Chemical Corporation

v. Department of Environmental Regulation , 406 So. 2d 478 (Fla.

2d DCA 1981). In that case, the Court held that:

We believe that before one can be considered

to have a substantial interest in the

outcome of the proceeding, he must show

1) that he will suffer an injury in fact

which is of sufficient immediacy to entitle

him to a sec tion 120.57 hearing and 2) that

his substantial injury is of a type or

nature which the proceeding is designed to

protect. The first aspect of the test deals

with the degree of injury. The second deals

with the nature of the injury.

Id. at 482.

5 7 . Agrico was not intended as a barrier to the

participation in proceedings under chapter 120 by persons who

are affected by the potential and foreseeable results of agency

action. Rather, Ð[t]he intent of Agrico was to preclude parties

from intervening in a proceeding where those parties'

substantial interests are totally unrelated to the issues that

are to be resolved in the administrative proceedings. Ñ Mid -

Chattahoochee River Users v. Fla. Dep't of Envtl. Prot. , 948 So.

2d 794, 797 (Fla. 1st DCA 2006)(cit ing Gregory v. Indian River

Cnty. , 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).

5 8 . The effect of the permitted activity on PetitionerÓs

interest in ensuring that tourists continue to visit Marco

Island, and thereby sustain her livelihood as a bartender , is

not a substantial injury in fact which is of a type or nature

that the Commission Ós regulatory permit ting authority regarding

the ÐtakeÑ of a species of special concern is designed to

protect. Thus, Petitioner failed to pro ve that she has

standing .

5 9 . In the event the foregoing analysis of PetitionerÓs

standing is determined to be incorrect, a review of the merits

of the issuance of the Permit is provided to ensure a complete

record for review.

Burden of Proof

60 . As the party seeking issuance, Ros e Marina bears the

burden of demonstrating, by a preponderance of the evidence,

entitlement to the Permit . Fla. Dep't of Transp. v. J.W. C. Co. ,

396 So. 2d 778, 788 (Fla. 1st DCA 1981) ; § 120.57(1)(j), Fla.

Stat.

61 . This is a de novo proceeding, intended to formulate

final agency action and not to review action taken earlier and

preliminarily. Young v. DepÓt of Cmty. Aff. , 625 So. 2d 831,

833 (Fla. 1993); Hamilton Cnty. Bd. of Cnty. Comm'rs v. Dep't of

Envtl. Reg. , 587 So. 2d 1378, 1387 (Fla. 1st DCA 1991); McDonald

v. DepÓt of Banking & Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA

1977).

Standards

62 . Article IV, section 9 of the Florida Constitution

provides, in pertinent part, that Ð[t]here shall be a fish and

wildlife co nservation commission, [which] shall exercise the

regulatory and executive powers of the state with respect to

wild animal life and fresh water aquatic life.Ñ

63 . Section 379.1025 , Florida Statutes, provides that:

T he Fish and Wildlife Conservation

Commission may exercise the powers, duties,

and authority granted by s. 9, Art. IV of

the Constitution of Florida, and as

otherwise authorized by the Legislature by

the adoption of rules, regulations, and

orders in accordance with chapter 120.

6 4 . In furtherance of its constitutional and statutory

authority, the Commission has promulgated Florida Administrative

Code Chapter 68A - 27 relating to species of special concern and

the circumstances under which they may be subject to a Ðtake.Ñ

6 5 . Rule 68A - 27.00 5 provides, in pertinent part, that:

(2) The following species are hereby

declared to be of special concern, and shall

be afforded the protective provisions

specified.

(a) No person shall take, possess,

transport, or sell any species of special

concern included in this subsection or parts

thereof or their nests or eggs except as

authorized by permit from the executive

director, permits being issued upon

reasonable conclusion that the permitted

activity will not be detrimental to the

surv ival potential of the species . For

purposes of this section, the definition of

the word take in Rule 68A - 1.004, F.A.C.,

applies.

* * *

(e) Birds:

* * *

4. Burrowing owl ( Athene cunicularia ).

6 6 . Rule 68A - 1.004 defines ÐtakeÑ as :

taking, attempting to take, pursuing,

hunting, molesting, capturing, or killing

any wildlife or freshwater fish, or their

nests or eggs by any means whether or not

such actions result in obtaining possession

of such wildlife or freshwater fish or their

nests or eg gs.

6 7 . The evidence in this case demonstrates that, applying

the factors set forth in r ule 68A - 27.00 5 , the permit ted activity

will not be detrimental to the survival potential of the

burrowing owl species.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law set forth herein , it is RECOMMENDED that the Florida Fish

and Wildlife Conservation Commission enter a final order

a pproving the issuance of Permit No. LSNR - 15 - 00004 to

Respondent, Marco River Marina/Rose Marina .

DONE AND ENTERED this 16th day of October , 201 5 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of October , 201 5 .

COPIES FURNISHED :

Ryan Smith Osborne, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Lise Jay Bauman

Unit V - 8

167 North Collier Boulevard

Marco Island, Florida 34145

(eServed)

Daniel High

951 Bald Eagle Drive

Marco Island, Florida 34145

Eugen e Wiley II, Executive Director

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Haro ld G. Vielhauer, General Counsel

Florida Fish and Wildlife

Conservation Commission

Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1050

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.