21-001785 Richard Whitecloud, Sea Turtle Oversight Protection, Inc. (S.T.O.P.) vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Monday, December 20, 2021.

Summary: Petitioner was entitled to renewal of its marine turtle permits.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ICHARD W HITECLOUD , S EA T URTLE

O VERSIGHT P ROTECTION , I NC . (S.T.O.P.) ,

Petitioner ,

vs. Case No. 21 - 1785

F LORIDA F ISH A ND W ILDLIFE

C ONSERVATION C OMMISSION ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was held via Zoom in this matter

before the Honorable Francine M. Ffolkes, an assigned Administrative Law

Judge with the Division of Administrativ e Hearings (DOAH), on July 28

and 29, 2021.

A PPEARANCES

For Petitioner: Ralf Gunars Brookes, Esquire

Ralf Brookes Attorney

Suite 107

1217 East Cape Coral Parkway

Cape Coral, Florida 33904

For Respondent: Rhonda E. Parnell, Esqui re

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE S

Whether Petitioner, Sea Turtle Oversight Protection, Inc. (STOP) , is

entitled to renewal of thre e existing marine turtle permits (MTPs), which

allow hatchling recovery and release pro grams on Broward County beaches ,

and whether Respondent, Florida Fish and Wildlife Conservation

Commission (FWC) , proved its reasons for denial of renewal by a

preponder ance of the evidence.

P RELIMINARY S TATEMENT

On April 28, 2021, FWC issued its notice of denial to Petitioner of

applications to renew MTP - 195, MTP - 196, and MTP - 197. FWC informed

Petitioner that it reviewed five renewal applications dated January 7, 2021,

for existing permits. FWC denied renewal of permits MTP - 195, MTP - 196, and

MTP - 197. FWC issued permits for MTP 21 - 192 and MTP 21 - 193 to Petitioner

to conduct hatchling recovery and release programs during 2021.

Petitioner challenged the denials on May 20, 2021. FWC referred the

challenge to DOAH. The parties filed their Amended Parties' Joint

Prehearing Stipulation on July 20, 2021.

At the final hearing, the parties stipulated to the admission of all

proposed exhibits. Joint Exhibits J - 1 through J - 7 were a dmitted into

evidence. Petitioner's Exhibits 1 through 5 were admitted into evidence.

FWC's Exhibits R - 1 through R - 6 were admitted into evidence.

Petitioner presented the expert and fact testimony of Richard Whitecloud

( Mr. Whitecloud) , principal officer of STOP and accepted as an expert; and

Kurt Rusenko , Ph.D. (Dr. Rusenko) , board member and science advisor to

STOP and accepted as an expert. FWC presented the expert and fact

testimony of Robin Trindell , Ph.D. (Dr. Trindell) , accepted as an expert in

mari ne turtle management; and the fact testimony of Meghan Koperski

( Ms. Koperski) and Tonya Long.

A three - volume Transcript was filed with DOAH on September 14, 2021.

The parties timely filed their proposed recommended orders on October 5,

2021, which were carefully considered in the preparation of this

Recommended Order.

All statutory references are to the 2021 version unless otherwise

indicated.

F INDINGS OF F ACT

The Parties

1. FWC is the agency with exclusive jurisdiction to regulate all wild

animal life , fresh - water aquatic life, and marine life in Florida. See Art. IV,

§ 9, Fla. Const. However, FWC's authority to regulate the marine life species

that were considered endangered or threatened, as defined by

section 372.072, Florida Statutes (1997), at the time of promulgation of

Article IV, section 9 of the Florida Constitution, is statutory in nature. A n

MTP from FWC is required to take, possess, disturb, mutilate, destroy, sell,

transfer, molest or harass a marine turtle or its nest or eggs or hatchlings .

See § 379.2431(1), Fla. Stat.

2. STOP is a not - for - profit corporation with a mission to rescue sea turtles

on the beaches of Broward County. Mr. Wh itecloud is the principal officer of

STOP and the designated qualified individual on the MT Ps at issue in this

proceeding. A n MTP may also include up to 24 authorized personnel

(volunteers).

3. STOP recognizes that artificial light disorientation is a problem on the

heavily urbanized beaches of Broward County. STOP, in conjunction with

FWC, is i nvolved with educating the community and local governments.

STOP was formed in 2010 and achieved not - for - profit status in 2013.

Background

4. FWC authorizes h olders of MTPs to conduct marine turtle conservation

activities. MTPs are conservation permits i ssued for any activity involving

live or stranded animals, nesting surveys and protection, or holding marine

turtles for rehabilitation or education. MTPs are issued for one year to

include the appropriate marine turtle nesting season.

5. Mr. Whitec loud fi rst got involved with rescuing sea turtle hatchlings

around 2007 and became a volunteer at the Gumbo Limbo Nature Center

from 2008 to 2014. After gaining enough hours , he obtained his first permit,

MTP - 192, which he has held for 14 seasons. He testified th at under the

MTPs , he and his volunteers conduct night time monitoring of hatchlings,

patrol the beach, and conduct rescue and release of hatchlings during the

marine turtle nesting season.

6. Mr. Whitecloud identified the problems that cause disorientatio n on

Broward County's urbanized beaches as: (a) visible artificial light sources

that cause hatchling disorientation; (b) natural disorientation; (c) lack of

beach slope; (d) lack of beach vegetation that would function as a dark

silhouette; and (e) direct access to open horizon.

Volunteers

7. With a maximum of 24 volunteers per MTP, STOP could , if all of the

five MTPs were approved, have up to approximately 120 volunteers who

qualify as authorized personnel. FWC reviewed and approved the curriculum

for tr aining STOP volunteers, whi ch includes four hours of class room

instruction and up to 40 hours of supervised field work. Dr. Rusenko, who is a

STOP board member and its science advisor, review ed the FWC - approved

classroom course materials.

8. FWC expressed concerns about STOP's citizen scientist program .

However, the program uses the same classroom curriculum and supervised

field training approved by FWC. Dr. Trindell testified that under such

circumstances, the citizen scientist would be an authorized volu nteer under

STOP's MTPs.

9. Even so, FWC is concerned with the number of volunteers who are

routinely swapped out under STOP's MTPs. FWC 's , Ms. Koperski , testified

that Mr. Whitecloud initially provide d incomplete information about the new

volunteers. This required a lot of follow - up phone calls to obtain more

complete information. The evidence established that during 2020, STOP

made one approved personnel amendment to each of three MTPs .

10 . Mr . Whitecloud explained that for the 17 - mile stretch of Brow ard

County beaches that fall under STOP's MTPs, he averages 20 volunteers per

night. The result is that at least one volunteer patrols a one - mile stretch of

beach. STOP's volunteers usually commit to a minimum of eight hours per

week during the marine turt le nesting season. Mr. Whitecloud's experience is

that all five MTPs are necessary to maintain a pool of qualified volunteers.

1 1 . STOP trains its volunteers to avoid and minimize impacts to nesting

marine turtles and their nests. The volunteers wear black clothing and carry

red lights. When groups of citizens and tourists gather on the beach at night,

the volunteers engage with them to educate them about avoiding the use of

improper white lights from cameras and cell phones, and other activities that

impac t nesting turtles, their nests, and hatchlings.

12. Mr. Whitecloud explained th at, in his experience, he found this

c ommunity engagement more effective than a purely regulatory approach.

Reporting

13. STOP volunteers fill out d isorientation reports tha t help to identify

the frequency and magnitude of impacts , including the location of offensive

lighting documented by photographs and location coordinates . The same form

for disorientation reporting is used throughout the state by MTP holders.

14. Broward County is the only disoriented hatchling recovery and release

program in Florida with a program of night time on - beach volunteers. In

other coastal counties, MTP holders fill out disorientation reports during

their early morning nesting surveys. In Dr. Rus enko 's expert opinion, this

night time program i s still needed on the heavily urbanized beaches of

Broward County.

15. T he April 28, 2021, denial letter refers to a "history of non - compliance

with permit conditions and reporting requirements ... for MTP - 1 92, MTP - 193,

MTP - 195, MTP - 196 and MTP - 197 . " FWC 's evidence was a notice of

non - compliance letter dated July 30, 2020, regarding MTP - 192 and MTP - 196

and activities that occurred between June 20 and 23, 2020.

16. Mr. Whitecloud testified that sometimes a fe w written reports are

submitted beyond the deadlines. He usually gives FWC a call or emails the

field office to let them know the reasons why h e is running late with written

reports . He testified that he is currently in compliance with reporting

requiremen ts.

17. Mr. Whitecloud also explained that recovery and reporting declined i n

2020 compared to other years because of the COVID pandemic. Uncertainty

caused by the emergency health orders delayed volunteers getting out on the

beach and also delayed report ing .

18. Although the FWC's J uly 30, 2020, non - compliance letter cited to

MTP - 192 and MTP - 196 , FWC only denied MTP - 196.

Lighting Ordinances

19. FWC's letters denying MTP - 19 5, MTP - 196, and MTP - 197, a nd

granting MTP - 192 and MTP - 193, all reference FWC's int ention to phase out

the on - beach disoriented hatchlings recovery and release programs. FWC

explains that the program was never intended to remain in place long - term

but w as created so local governments could work to implement local lighting

ordinances and bring beachfront properties into compliance. The denial letter

states that since all local governments covering Broward County beaches

have adopted lighting ordinances , there is now a mechanism to address

beachfront lighting.

20. FWC conducts code enforcem ent training workshops with Broward

County and the local governments. However, the evidence showed that the

county - wide compliance rate of 15 percent in 2011 had only increased to

23 percent by 2020. FWC also educates the local governments regarding

o ther mitigation measures to help prevent disorientation effects . These

measures include raised sidewalks and steps , seawalls , and dunes.

21. Mr. Whitecloud testified that in his experience code enforcement of

lighting ordinances is marginal. The local governmen ts take a non - punitive ,

educational approach. Identification of offensive lighting and repeat offenders

is usually done by STOP volunteers who identify and document non -

compliant light sources as part of their disoriented hatchlings reporting.

FWC Progra m Reassessment of Need

22. FWC acknowledged that the disoriented hatchling recovery program

has reduced "the lethal impact of poorly managed lighting to hatchlings."

FWC also acknowledged that while STOP's " volunteers have stepped up to

address an issue n ot of [STOP's] making, the continued lighting impacts to

nests on these beaches despite the many years of on - beach hatchling recovery

programs demonstrates that an alternative approach is needed. "

23. FWC then concludes that the "alternative approach" nee ded is to

discontinue on - beach hatchling recovery programs because "human presence

on the beach at night [is] a significant threat to nesting and hatchling sea

turtles." Even recognizing that the beaches are open to the public, FWC

concludes that the prese nce of STOP volunteers on the beaches at night

increases "the number of people on the beach and the potential for

disturbance of nesting females."

24. However, the facts adduced in the hearing are that members of the

public, comprised of tourists and cit izens , are the main disturbing presence

on the beaches, and not STOP volunteers whose presence comprise

approximately one volunteer per mile of beach.

25. FWC failed to prove by a preponderance of the evidence that STOP

volunteers are a disturbing presence on the beaches at night. In fact, the

evidence established that STOP volunteers are trained to avoid disturbing

nesting female turtles and hatchlings. STOP volunteers function as a

deterrent to the untrained members of the public who are mo st likely to

di sturb nesting females, dig - up nests, and handle hatchlings. In

Dr. Rusenko's expert opinion, this night time program is still needed on the

heavily urbanized beaches of Broward County.

26. In addition, FWC's reliance on mere adoption of lighting ordinance s by

the local government s is evidence of a p urely regulatory approach that is not

as effective as community engagement . Enforcement is marginal and non -

punitive. The result is only a slight increase in county - wide compliance rates

between 2011 and 2020.

Reasons for denial

27. FWC did not prove by a preponderance of the evidence that STOP

remains out of compliance with reporting requirements and requests for

information.

28. FWC did not prove by a preponderance of the evidence that STOP

volunteers use inap propriate lights and shine lights on nests in contravention

of permit conditions.

29. FWC did not prove by a preponderance of the evidence that there no

longer exists a need for the permitted activities.

30 . STOP proved that it is currently in compliance w ith reporting

requirements and requests for information. STOP volunteers utilize

appropriate lighting when patrolling the beach. STOP proved the need for the

permitted activities.

31. STOP proved by a preponderance of the evidence that it is entitled to

re newal of MTP - 195, MTP - 196, and MTP - 197.

C ONCLUSIONS OF L AW

32. DOAH has jurisdiction over the subject matter of this case and the

parties under section 120.57(1), Florida Statutes . See Fla. Admin. Code R. 68 -

1.008.

33. FWC Ôs discretionary action on perm its or licenses, which affect

substantial interests, is subject to adjudication under sections 120.57,

120.569, and 120.60. See Fla. Admin. Code R. 68 - 1.008 (5)(b)3 .

3 4 . Florida Administrative Code R ule 68E - 1.004(19)(b) provides that

"[p] ermit renewals sha ll be based upon satisfactory compliance with this

Chapter, the conditions of the existing permit, receipt of all reports for

authorized activities, compliance with the Handbook for authorized activities,

the need for a specific activity, and response to C ommission staff upon

request for information related to authorized activities."

35. STOP proved that it meets the criteria for renewal and that its marine

turtle conservation activities are still needed on the urbanized beaches of

Broward County. STOP pro ved by a preponderance of the evidence that it is

entitled to renewal of MTP - 195, MTP - 196, and MTP - 197.

36. FWC did not prove by a preponderance of the evidence that STOP

remains out of compliance with reporting requirements and requests for

information. F WC did not prove by a preponderance of the evidence that

STOP volunteers use inappropriate lights and shine lights on nests in

contravention of permit conditions. FWC did not prove by a preponderance of

the evidence that there no longer exists a need for t he permitted activities.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that FWC enter a f inal o rder granting STOP's applications to

renew MTP - 195, MTP - 196, and MTP - 197 .

D ONE A ND E NTERED this 20 th day of December , 2021 , in Tallahassee,

Leon County, Florida.

S

F RANCINE M. F FOLKES

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hear ings

this 20 th day of December , 2021 .

C OPIES F URNISHED :

Ralf Gunars Brookes, Esquire Rhonda E. Parnell, Esquire

Ralf Brookes Attorney Florida Fish and Wildlife

Suite 107 Conservation Commission

1217 East Cape Coral Parkway 620 South Meridian Street

Cape Coral, Florida 33904 Tallahassee, Florida 32399

Emily Norton, Gen eral Co unsel Eric Sutton, Exec utive Director

Florida Fish and Wildlife Florid a Fish and Wildlife

Conservation Commissio n Conservation Commission

Farris Bryant Building Farris Bryant Building

620 South Meridian Street 620 South Meridian Street

Tallahassee, Florida 32399 - 1050 Tallahassee, Florida 32399 - 1600

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of t his Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.