CHARLESTON & BEAUFORT COUNTIES, SC – Today, the South Carolina Federal District Court ordered “immediate removal of all sea walls from Harbor Island and Isle of Palms, and orders that these temporary sea walls remain removed during the sea turtle nesting period while this action proceeds.” On Friday, August 11th, Judge Norton heard oral arguments on two pending motions before the Court at the Federal Courthouse in Charleston. Today’s order resolves both motions in favor of the plaintiffs, South Carolina Wildlife Federation (“SCWF”) and Sierra Club, who are represented by the South Carolina Environmental Law Project (“SCELP”).
The South Carolina Department of Health and Environmental Control (“DHEC”) had moved for dismissal of the case, citing an obscure legal doctrine known as Burford abstention for the argument that the case should be dismissed in federal court and resolved in state proceedings instead. In the order, the court found “DHEC’s abstention argument unavailing.” Instead, the court explained that the plaintiffs’ Endangered Species Act violation is a serious cause of action in which the federal court has an “unflagging obligation to exercise its jurisdiction.”
After denying DHEC’s motion to dismiss, the court granted SCELP’s motion for a preliminary injunction. In doing so, the court expressly found that SCWF and Sierra Club “are likely to succeed on the merits of their ESA take claim.” The court found that false crawls caused by the experimental sea walls constitute a take because they “lead to a ‘significant impairment’ in the sea turtles’ breeding patterns.” The court also recognized that the continued use of these experimental sea walls is causing irreparable harm, that it is more equitable to have them taken down while the case is pending than to allow them to remain, and that removal of the seawalls is in the public interest. As the court states: “The sea walls were designated by the South Carolina General Assembly to be research structures and authorized by DHEC for a one-year period. Certainly, it cannot be unforeseen that the sea walls would need to be removed after the research study ended.”
Steve Gilbert, a biologist and the Special Project Manager for SCWF, states: “These Wave Dissipation System (WDS) devices were designed specifically for relatively quick removal during turtle nesting season to reduce or eliminate the harassment of sea turtles by forced ‘false crawls’ (failed nesting attempts) that brought about this suit. Unfortunately, the walls have remained in place for longer than the initial year for which they were authorized for study and they continue to block turtle nesting post study. The study clearly demonstrated that the WDS were not effective for their design purpose and caused more erosion and loss of sand then control areas. They were however effective in causing numerous ‘false crawls’ by turtles. It is important to note that no Incidental Take Permits under the Endangered Species Act for the turtle harassment were sought or granted. The judge’s ruling to require their removal during turtle nesting season is a welcome relief to this situation.”
Chris Hall, Chair of the SC Sierra Club Chapter, states: “I think that the DHEC staff report reflected that these structures do not work, and we have supported the DHEC staff recommendations throughout this process. The DHEC Board blocked the sound decision-making of staff, which is how we ended up with these illegal sea walls continuing to block sea turtle nesting for a third season. This order is a critical step towards good science and law on the protection of sea turtles.”
Michael Corley the SCELP attorney, who argued both motions for SCWF and Sierra Club on Friday, states: “I felt we had a very strong case for a preliminary injunction because of the urgent need for removal during the current nesting season and the favorable law on ESA takes. It feels great to be validated by federal court. We look forward to seeing the walls come down.”
The plastic seawalls were erected after legislative “approval” (via a budget proviso) as a temporary exception to the general ban against seawalls by reason of their experimental nature. These experimental seawalls were installed at Isle of Palms and Harbor Island in 2015 and the thorough study conducted by the Citadel under DHEC supervision reached unequivocal conclusions about the experiment: the structures did not work and actually, like many other seawalls before, worsened erosion in the affected areas. However, the DHEC Board authorized and re-authorized the continuation of the sea wall experiment, compelling our clients to seek relief from federal court.
SCWF Contact: Steve Gilbert
Isle of Palms seawalls must come down because of turtle nesting, judge rules.
Post & Courier, 08/14/17
Court orders removal of seawalls to protect rare turtles.
The State, 08/14/17