ELR Citation: ELR 20368
No(s). 82-1481-CIV-EPS (S.D. Fla. Nov 10, 1982)

The court denies preliminary injunctive relief under the Endangered Species Act (ESA) and other environmental statutes against the Florida Game and Fresh Water Fish Commission's proposed four-day deer hunt to alleviate overcrowding in Florida State Conservation Area 3A. Initially, the court rules that neither the National Environmental Policy Act nor the Administrative Procedure Act is applicable because the proposed hunt has no federal involvement. In addition, it rules thatthe Migratory Bird Treaty Act, the Migratory Bird Conservation Act, the Fish and Wildlife Coordination Act, and the Bald and Golden Eagle Protection Act are inapplicable. However, the court determines that plaintiffs have standing under the citizen suit provisions of the ESA and that it has jurisdiction under the Act. It finds that the Florida white-tail deer, the deer to be hunted, are not entitled to the protection of the ESA. They are not listed as an endangered species and the court rules that to be considered part of the same species as the endangered Key deer under §3(16) of the ESA, the two types of deer would have to interbreed in fact, which is rendered impossible by the Key deer's island habitat. The court, assuming that other endangered species exist in Conservation Area 3A, holds that the proposed hunt would not constitute a taking of an endangered species. After noting that the conservation area is a public hunting area where airboats and other all-terrain vehicles are allowed, the court concludes that the four extra days' use of such vehicles would neither significantly distrupt normal behavior patterns of any endangered species nor significantly degrade their habitat.

The court denies plaintiffs' motion for a preliminary injunction. It rules that plaintiffs have failed to establish (1) a substantial likelihood of success on the merits, (2) that they will suffer irreparable injury, (3) that the threatened injury to plaintiffs outweighs the threatened harm to defendants, and (4) that injunctive relief is in the public interest.

Counsel for Plaintiffs
Norman J. Haft
933 City Nat'l Bank Bldg., 25 W. Flagler St., Miami Fl 33130
(305) 377-0562

Douglas P. Solomon
2911 Grand Ave., Suite 4A, Coconut Grove FL 33133
(305) 444-6988

Stuart A. Cohen
P.O. Box 161584, Miami FL 33116
(305) 251-9000

Counsel for Defendants
Michael J. Mitchell, Ass't U.S. Attorney
155 S. Miami Ave., Miami FL 33130
(305) 350-4471