Why does Florida Fish & Wildlife refuse to protect eagles and tortoise? Answer, it's up to you.
Perhaps from the property until State Officials arrived. With the help of WARN's Colin Fiske and the Concerned Citizens of Tarpon Springs' president Dory Larson, we got FFWCC to come out, but not without a fight. The first calls to the Tampa division of FFWCC were not heeded, then they chose to send an officer out, then he turned around and headed back to Tampa after hearing Wal Mart had a permit, then after several calls to the Tallahassee division, he turned around and came to the river front site. Wal Mart's attorney ValerieWilliams-Hoenesen greeted the officer with the "permit". Then the officer tried to convince the group that the corporation had every right to proceed. Until, Dory Larsen showed the officer the second page of the permit which clearly stated that they must have "all" permits to build before they could remove the animals. Now this only makes sense, of course they should have gotten all green lights to build before they destroy an animal's home. If they are found not to meet all of the other requirements first, then why disturb the sensitive and protected creatures? Also, keep in mind; they had absolutely no permits of any kind. We had fought to get every permit they had revoked. How convenient that their attorney neglected to mention that and also that she only showed only the first page of the permit to the officers on the scene in an obvious attempt to deceive them. Finally, the officers ruled that Wal Mart must return the Gopher Tortoise to their homes and leave the property. This was an enormous victory, except that one of the biologists there told Sierra's Marc Washburn, that some "didn't make it". How many we may never know, because States Attorney Bernie McCabe's office refused to investigate or prosecute. And what of the Attorney present? It turns out it is illegal for an attorney to be present while their client is in the act of committing a crime. Mrs. Larson has since filed a complaint with the Florida Bar, and waits to this very day for justice in this matter.
Flash forward to June 2nd 2007. This time it's Pasco County, the proposed also the arrival of tortoise from the site. When we pointed out condition 5 on the permit as we had done before, he stated that "all permits" doesn't mean "all" anymore. It seams that we were not the only ones who learned from the past. The developers and also the Agency learned how to get around the rules. We were being regulated by the agency instead of the developer. Being as it was a weekend, we had no way of contacting the officer's superiors as we did in the previous case. And once we realized that his reading of the law was unwavering, we also pointed out condition 8 on the permit, (another one Wal Mart violated as well), which sates that they must post the entire permit around the perimeter of the site. To this Officer Grover replied that, there is a tropical storm, so why should they post it in such harsh weather conditions? So it was OK for workers and sensitive animals to be put in harms way, but pieces of paper not so much. The "coup de gras" was delivered by Grover, when we asked him if we could inspect the tortoises in the buckets that they said they had them in. He said no. He also refused to look at them himself! To this day, we do not know if the animals were alive or dead, or if the buckets were empty and the animals crushed somewhere on the site. Activists had located and GPS marked over 50 gopher tortoise burrows on the site, and they had claimed to get only 10. If you drive by the site today, it looks like a lunar landscape, every living thing has been destroyed. The good news here is that the project has been stopped in its tracks by the Sierra Club and others, who filed a Federal Lawsuit against the Army Corps for allowing polluted runoff to enter the Creek from the site. Victory will come when they are forced to replace the vegetation they raped from the land, but what of the gopher tortoise?
The American Eagle and Bald Eagle are now in a similar boat. The Bald and Golden Eagle Protection Act was enacted in 1940 to keep the birds from being hunted. The bald eagle's numbers went down to 417 pairs by 1963 and by 1973 they were placed on the endangered species list. They have since been delisted, and now it is up to the local municipal governments to help keep them protected. When I first learned that an eagle was discovered on the proposed Wal Mart site on the banks of the Anclote River in Tarpon Springs, I was overjoyed. I was in Oakland CA attending CELDF's Democracy School, myself a recipient of a generous scholarship from the Business Ethics Network . I assumed, like most who heard about the eagles, that this would mean an end to any possible construction. Not so fast. After a several calls to FWC and FFWCC, I learned that no one in these agencies planed to do anything about the fact that Wal Mart was planning to move ahead with its plans and would just "deal with it". They would simply pay the heavy fine and move on. And by the way, a fine on a developer is tax deductible(the cost of doing business)and therefore not a fine at all.
And thus begins the solution phase. We have submitted a proposed eagle habitat ordinance to the City of Tarpon Springs. At first the Commission came to a consensus, that our City needed such an ordinance and instructed the City Attorney to research and draft one. City Attorney Jim Yacavonne drafted no ordinance, but instead drafted a memo stating that a City can't possibly do such a thing because it would be pre-empted by State and Federal Law. He said that he called FFWCC and asked an attorney there if we could and they said no sighting pre-emption. After reading his memo and hearing his excuse, I called the same agency. When I asked the question I got the same response, but instead of hanging up the phone, I next asked, "well then what can we do?". The attorney explained that every City can enact zoning laws that protect animal habitat, which oddly enough, is exactly what the ordinance we proposed to the City did in the first place. So now, we are asking the City once again to review our proposal and draft an effective protective eagle ordinance. We are waiting to see what action the City takes, if they do not pass an effective ordinance through our representatives on the City Commission then we will do so by referendum on the next election.
This is where you can help. Contact the City of Tarpon Springs or the Mayor Beverly Biliris (who is running for Pinellas County Commission)[email protected] 727-938-3711and demand protection of the eagles that have taken up residence there.
Educate yourselves about the process in your City. Ask your City to pass protections for eagles and then tortoises, and any other wildlife you believe needs help. Ask them to adopt tree ordinances and mangrove protection. If they ignore you, the will of the people, then learn how to pass your ordinances by referendum. Go to municode.com and read your City's Charter. Use the search button to speed you to your answers.
These first hand accounts are brought to you by someone who didn't have the advantage of hearing this kind of information before hand. It is not like no one had ever gone through this before, but we lacked the ability to communicate the information from generation to generation. There is no more lack; the internet has provided us with the ability to pass on knowledge. Please take advantage of this wisdom and stand on our shoulders to reach new heights. More and more, we need to focus on local self governance. I have been to our State Capital and to our Nation's Capital and I have found it much easier to simply go down to the local City Hall. Your City Hall is where you can start and you will most likely find that this is where we must all finish. Where others refuse to protect wildlife, it's now up to you.
Below I have pasted a copy of our most recent eagle habitat ordinance draft as well as excerpts from an email chain between myself and some Florida Fish and Wildlife employees that actually are interested in helping protect eagles. Learn from it:
SUGGESTED BALD EAGLE HABITAT PROTECTION ORDINANCE
(A) Purpose and Findings
As a first step toward preserving the habitat of the bald eagle (Haliaeetus leucocephalus), it is necessary and appropriate to protect and preserve the immediate environs of bald eagle nests. This ordinance is intended to exercise the City's legitimate zoning powers for the purpose of preserving the immediate environs of bald eagle nests and thereby promoting national, state and county pride and esteem by allowing the national symbol to flourish within the City limits. For these purposes, the City of Tarpon Springs finds that it is necessary to adopt this ordinance.
(B) Provisions of Ordinance Supplemental
This ordinance does not replace or modify the federal Migratory Bird Treaty Act, the federal Bald and Golden Eagle Protection Act, the state rule F.A.C. 68A-16.002 Bald Eagle (Haliaeetus leucocephalus), the state's Bald Eagle Management Plan, or any other state or federal laws which afford protection to the bald eagle. It is intended to supplement those laws and plans, and shall apply apart from and regardless of those laws and plans. This ordinance does not purport to protect or regulate eagles, their nests or their eggs, but rather only to protect certain limited areas of bald eagle habitat within the City of Tarpon Springs.
(C) Bald Eagle Habitat Protection Regulations
(1) Any submission for site plan approval shall include a map of the site and surrounding areas, showing the locations of all likely[uk1] or confirmed bald eagle nests located on the proposed development site or within 660 feet of any site boundary. This map must be based upon the results of a comprehensive site survey conducted during the most recent bald eagle nesting season, and must also show the locations of any confirmed bald eagle nests included in the list of such nests maintained by the Florida Fish and Wildlife Conservation Commission. Nesting season is herein defined as the period from 1 October to 15 May.
(2) The survey identified in subsection (C)(1) shall include any nest(s) which is utilized by bald eagles for the hatching and nurturing of eagle young at the time of any proposed activity within the protective buffer around the nest provided for by this ordinance, or which has been so utilized by bald eagles at any time during the five-year breeding season period immediately preceding such proposed activity. Any claim that a nest has not been in use during such a five-year breeding season period must be adequately documented.
(3) All activities which require site plan approval shall be divided into two categories, as follows:
Building construction of one or two stories, and with a project footprint of ?0.5 acre;
Construction of roads, trails, canals, powerlines, or other linear utilities;
New or expanded agriculture or aquaculture operations;
Alteration of shorelines, aquatic habitat, or other wetlands;
Installation of docks or moorings;
Building construction of one or two stories, and with a project footprint of >0.5 acre;
Building construction of three or more stories;
Installation or expansion of marinas with a capacity of six or more boats;
Oil or natural gas drilling or refining.
(4) Habitat shall be protected within a specific radius around a bald eagle nest, as identified in the following table. No site plan shall be approved which allows any construction, modification, improvement or other activity of any kind within this protected habitat.
|No Similar Activity Within 1,500 Feet of the Nest||
|Similar Activity Closer Than 1,500 Feet From the Nest|
|There is no visual buffer between the nest and the activity.||
|Categories A and B: 660 feet.||
|Categories A and B: 660 feet, or as close as existing activities of similar scope.|
|There is a visual buffer between the nest and the activity.||
|Category A: 330 feet.Category B: 660 feet.||
|Categories A and B: 330 feet, or as close as existing activities of similar scope.|
(5) Where protected habitat within a radius of 330 feet is required, site work and exterior construction between 330-660 feet should be performed outside the nesting season.
(D) Bald Eagle Nests Discovered After Initial Submission for Site Plan Approval
If any additional bald eagle nesting seasons[uk2] occur subsequent to the nesting season during which the initial comprehensive site survey was conducted but prior to building permit issuance, a new comprehensive site survey and map shall be required prior to building permit.[uk3] If any new nests are identified, no building permit shall be issued which does not comply with Section (C) above, regardless of any previously approved site plan.
While we are happy to make suggestions, FWC does not approve or disapprove local government ordinances. As stated before, our suggestions would be for your ordinance to adopt our Management Plan guidelines, and then offer benefits to regulated entities that go beyond State and Federal requirements. Lee County's ordinance (forwarded in an earlier email), while not without problems, attempts to do this.
FWC is empowered by the Florida Constitution to exercise the state's regulatory and executive power with respect to fish and wildlife. This authority is exclusive and FWC has not, by rule or policy, authorized more restrictive local laws on the subject. FWC recognizes that local governments have the responsibility under the Growth Policy Act to protect wildlife habitat. Chapter 4 of the Bald Eagle Management Plan, under Local Government Coordination, states coordination between FWC and local government is crucial to ensure successful implementation of eagle protection in Florida and habitat protection for eagles.
Removing the "most restrictive shall prevail" language is helpful, because complying with any one regulation, no matter how restrictive, does not mean that a regulated entity would not be required to obtain the relevant permits or follow appropriate guidelines from another agency. However, to the extent that local governments deviate from the FWC guidelines, preemption is more likely to become a litigable issue with landowners and developers. In two recent cases involving Lee County (Chapel Creek rezoning) and the City of Bonita Springs (Bonita Bay Properties and SWF Properties DRI), bald eagle protection provisions proposed by local government have been determined to be flawed because of inconsistency with state and federal guidelines.
In addition to these comments, I am attaching suggested edits from our Eagle Permitting coordinator, Ulgonda Kirkpatrick.
Assistant General Counsel
Florida Fish and Wildlife Conservation Commission
620 S. Meridian Street
Tallahassee, Florida 32399
Subject: Fwd: eagle habitat ordinance redraft
I am re-sending this to verify, that these final changes will pass the test with FWC. I am copying Rita Farlow with the St.Pete Times, because she called me yesterday and asked how this was proceding. I told her we had been working on this together, but we somehow lost contact. Please let us know if you feel this final draft can be approved, and also is there any other department in FWC that we should contact before the City passes it.
Thanks so much for all of your help, Chris