THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION No. 7:10-CV-32

THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION No. 7:10-CV-32 THE KAREN BEASLEY SEA ) TURTLE RESCUE AND ) REHABILITATION CENTER, ) Plaintiff, ) ) COMPLAINT vs. ) FED. R. CIV. P. 3 ) NORTH CAROLINA DIVISION ) OF MARINE FISHERIES; DR. ) LOUIS DANIEL, Director of North ) Carolina Division of Marine ) Fisheries; NORTH CAROLINA ) MARINE FISHERIES ) COMMISSION, ) Defendants. ) COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF I. INTRODUCTION In this action for declaratory and injunctive relief pursuant to the Endangered Species Act ( ESA ), 16 U.S.C. 1540(g) (2006), Plaintiff seeks a ruling that Defendants North Carolina Department of Marine Fisheries ( DMF ), DMF Director Dr. Louis Daniel, and North Carolina Marine Fisheries Commission ( MFC ) have violated, and continue to violate, the prohibitions of the ESA. Id. 1538. Plaintiff also seeks to enjoin Defendants from engaging in future actions that will violate the ESA. This case concerns the illegal take of federally protected sea turtles by North Carolina s commercial gill net fisheries. North Carolina has licensed more than 36 million yards of gill nets for commercial fin fishing in the state s coastal waters. According to the National Marine Fisheries Service ( NMFS ), gill nets pose a significant threat to endangered and threatened 1

species of sea turtles found in U.S. waters and impede the recovery of those species. In fact, prior to Congress enactment of the ESA when it was legal to catch and eat sea turtles, gill nets were the preferred gear type for turtle fisheries. It is no longer legal to catch or harm the sea turtles that are found in North Carolina s coastal waters, as each of the five species that frequent these waters is listed as either threatened or endangered pursuant to the ESA. Consequently, any unauthorized take of a sea turtle constitutes a violation of the ESA, unless the take is expressly authorized by an incidental take permit, or ITP, for takes incidental to an otherwise lawful activity. 16 U.S.C. 1538(a)(1)(B); 16 U.S.C. 1539(a)(1). Despite this legal prohibition, large numbers of sea turtles have been taken by North Carolina s gill net fisheries, resulting in severe injuries and deaths. Recognizing that its licensing activities had resulted and would continue to result in the take of protected sea turtles, in 2005 Defendant DMF applied for and obtained from the NMFS an ITP for a portion of North Carolina coastal waters where large numbers of sea turtles had been taken by gill nets. The area covered by this ITP is now labeled the Pamlico Sound Gill Net Restricted Area ( PSGNRA ). NMFS, Permit to Incidentally Take Endangered/Threatened Species, Permit No. 1528 ( ITP 1528 ), attached as Exhibit 2. In each of the five years that ITP 1528 has been in effect, Defendants have violated its terms by failing to maintain required levels of observer coverage, allowing takes that exceed permitted levels, and failing to enforce reporting requirements. Such violations of ITP 1528 also constitute violations of the ESA itself. 16 U.S.C. 1539(a)(2); ITP 1528 (IV)(C)(6). In addition, ITP 1528 applies to only a relatively small geographic area within Pamlico Sound, and approximately 95% of the state s gill net fishing is not covered by an ITP. 2

Consequently, every time a gill net licensed by Defendants results in the take of sea turtles outside the PSGNRA, it is not authorized by an ITP and thus violates the ESA. Based on the state s own data, it is estimated that as many as 400 or more sea turtles are taken by those gill nets each year. Plaintiff Karen Beasley Sea Turtle Rescue and Rehabilitation Center seeks to prevent further violations of the ESA in order to protect these threatened and endangered sea turtles and allow them to recover to the point where the protections afforded by the ESA are no longer necessary. II. JURISDICTION AND VENUE 1. This court has jurisdiction over this action pursuant to 28 U.S.C 1331 (2006) (federal question), 28 U.S.C. 2201-02 (declaratory judgment and further relief), and 16 U.S.C. 1540(g) (ESA citizen suit provision). The requisite 60-day notice letter was filed on November 20th, 2009, and is attached as Exhibit 2. See id. 1540(g)(2)(A)(i). 2. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b) because all Defendants reside in the same state as well as within this district. Additionally, a significant number of the events giving rise to this complaint took place within this judicial district. Id. 3. Pursuant to Local Rule 40.1(c)(2), intradistrict assignment is proper in the Southern Division, where Plaintiff Beasley Center has its principal office. III. PARTIES A. Plaintiff 4. Plaintiff KAREN BEASLEY SEA TURTLE RESCUE AND REHABILITATION CENTER ( Beasley Center ) is a volunteer-run, private 501(c)(3) nonprofit organization located in Topsail Island, North Carolina. The Beasley Center s primary goal is the conservation and protection of all species of marine turtles both in the water and on the 3

land. Karen Beasley Sea Turtle Rescue and Rehabilitation Center, Mission Statement (1997). The Beasley Center s chief means of promoting its goal is the rescue and rehabilitation of sick and injured sea turtles. The Beasley Center also engages in protection of sea turtle nesting sites, public education regarding sea turtle-human interaction, and community outreach related to marine resources. The Beasley Center consists of Jean Beasley, a Board of Directors, a large staff of volunteers, and college-level student interns who are pursuing careers in sea turtle conservation (collectively the members of the Beasley Center). Beasley Center members and supporters regularly view, photograph, videotape, care for, monitor, and enjoy sea turtles both in their natural habitat and at the Rescue and Rehabilitation Center, and their professional and aesthetic interests are harmed by the acts and omissions of Defendants. Moreover, Defendants actions and omissions are degrading the sole resource that the Beasley Center is dedicated to protecting. By illegally reducing the population of protected sea turtles, Defendants negatively affect the professional and aesthetic interests of Jean Beasley and the Beasley Center s members. B. Defendants 5. Defendant NORTH CAROLINA DIVISION OF MARINE FISHERIES ( DMF ) is the Division within the North Carolina Department of Environment and Natural Resources ( DENR ) charged with the stewardship and management of North Carolina s marine and estuarine resources. 15A N.C. Admin. Code 03H.0102. See also N.C. Gen Stat 113-131(a) & 131(b). One way in which DMF manages resources is by implementing the decisions of the MFC. Id. 6. Defendant DR. LOUIS DANIEL is the Director of the DMF. The Director holds a broad proclamation power giving him the ability to open or close fisheries, restrict gear types, and make other decisions regarding North Carolina marine resources management, including 4

decisions regarding the use of fishing gear and effects of such gear on protected sea turtles. 15A N.C. Admin. Code 03H.0103 (2008). Dr. Daniel is sued in his official capacity. 7. Defendant NORTH CAROLINA MARINE FISHERIES COMMISSION ( MFC ) is the executive branch commission that has the responsibility to authorize, license, regulate, prohibit, prescribe, or restrict all activities relating to the marine and estuarine resources in coastal fishing waters of North Carolina, and is administratively supported by DENR. N.C. Gen Stat 113-182(a). IV. LEGAL BACKGROUND A. The Endangered Species Act 8. In 1973, Congress enacted the ESA to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved and a program for the conservation of such endangered species and threatened species. 16 U.S.C. 1531(b). Congress enacted the ESA in recognition of a crisis facing the United States the rapid depletion and near extinction of a large number of species. Id. 1531(a)(2). 9. A species must be listed as endangered or threatened to gain the protections of the ESA. An endangered species is a species that is in danger of extinction throughout all or a significant portion of its range. Id. 1532(6). A threatened species is a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Id. 1532(20). 10. Once a species is listed as endangered, the ESA prohibits any person from taking one or more individuals of that species, and regulations promulgated pursuant to the Act prohibit any person from taking a threatened species. Id. 1538(a)(1)(B) (prohibiting take of endangered species); 50 CFR 223.205(a) (applying ESA take prohibition to threatened as well 5

as endangered sea turtles). Take is defined as [to] harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C 1532(19). A person includes not just private parties but local, state, and federal agencies as well. Id. 1532(13). 11. Take is not limited to direct interactions with the species, but also includes any action that causes [take] to be committed. This definition extends the prohibition on take to the acts of third parties, such as state governmental agencies whose affirmative actions authorize activities that will result in the take of listed species. Id. 1538(g); E.g., Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997). 12. Pursuant to the ESA, the only exceptions to prohibited take are those allowed by 10 of the Act, which implements an incidental take provision allowing for limited numbers of a species to be taken incidental to specific, otherwise lawful activities. 16 U.S.C. 1539(a)(1). 13. A non-federal party may apply for an incidental take permit ( ITP ) for take that occurs incidental to an otherwise lawful activity, but only if the impact upon the species does not reduce the likelihood of survival and recovery of the species. Id. 1539(a)(2)(B)(iv). Each ITP specifies a maximum number of individuals of the protected species that may be taken during the exercise of the activity. Take beyond the designated number of animals covered by the permit is subject to the ESA s take prohibition. Id. 1539(a)(1)(B). The circumstances in which an ITP is appropriate are limited, evidenced by the fact that an applicant must first show what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized. Id. 1539(a)(2)(A)(iii). An applicant must also show mitigation of any impacts to the species. Id. 1539(a)(2)(A)(ii). 6

14. The purpose of an ITP is to allow certain lawful human activities to co-exist with the requirements of the ESA. At all times, however, the activity is subordinate to the recovery of the species. For instance, the ESA states that an ITP may not appreciably reduce the likelihood of the survival and recovery of the species in the wild and that the permittee must to the maximum extent practicable, minimize and mitigate the impacts of such taking. Id. at 1539(a)(2)(B)(4). An ITP must also comply with the purpose of the ESA, which the Supreme Court has stated is to halt and reverse the trend toward species extinction, whatever the cost. TVA v. Hill, 437 U.S. 153, 184 (1978). 15. The permittee must comply with any other specific requirements that the Secretary of Commerce deems necessary for the permit to comply with the purpose of the ESA. 16 U.S.C. 1539(a)(2)(A)(iv). 16. The ESA contains a broad citizen suit provision that allows any person to initiate a suit against any other person, including a government agency, to enjoin them from violating any portion of the ESA. Id. 1540(g). V. FACTUAL BACKGROUND AND ALLEGATIONS A. Sea Turtles are Protected by the Endangered Species Act 17. There are seven species of sea turtles found throughout the planet s oceans. Five of these species are found in the territorial Atlantic waters of North Carolina: the green turtle (Chelonis mydas), loggerhead (Caretta caretta), Kemp s ridley (Lepidochelys kempii), leatherback (Dermochelys coriacea), and hawksbill (Eretmochelys imbricata). Sherryann Epperly et al., Sea Turtles in North Carolina Waters 9 Conservation Biology 384, 389-90 (1995). Each one of these species of sea turtles found has seen a precipitous decline in the last hundred years, and every one is federally protected by the ESA. 35 Fed. Reg 8491 (June 2, 1970) (listing 7

the hawksbill turtle and the leatherback as endangered); 35 Fed. Reg. 18,319 (Dec. 2, 1970) (listing the Kemp s ridley turtle as endangered); 43 Fed. Reg. 32,801 (July 28, 1978) (listing the green turtle as endangered and the loggerhead as threatened). 18. Recent studies show loggerhead turtle populations decreasing at an alarming rate; scientists estimate that by 2017, the total population will be less than 20% of the total 1998 population. On March 5, 2008, NMFS issued a determination that uplisting i.e., raising the species protected status from threatened to endangered may be warranted. 90-day Finding for a Petition to Reclassify the Loggerhead Turtle in the Western North Atlantic Ocean, 73 Fed. Reg. 11,849 (Mar. 5, 2008). B. Gill nets in North Carolina 19. A gill net is a type of fishing gear commonly used in North Carolina coastal waters. The net itself consists of a length of monofilament mesh, which may be up to 800 yards long in North Carolina. E.g., NCDMF Proclamation M-18-2009 (Revised) (Aug. 26, 2009). The net is weighted at the bottom and buoyed at the top so that it remains stationary in the water. The individual mesh openings are correlated to fish of specific size so that the sought after fish can swim forward into the net but cannot fit all the way through the mesh. If the fish attempts to back out, the net s mesh catches in the gills of the fish, trapping the fish in the net. 20. Gill nets are typically placed in shallow waters, which sea turtles also use as foraging grounds, virtually guaranteeing interactions. See Catherine M. McClellan & Andrew J. Read, Confronting the Gauntlet: Understanding Incidental Capture of Green Turtles Through Fine-Scale Movement Studies, Endangered Species Res., June 2009. 21. When a sea turtle comes in contact with a gill net, the turtle s head or flipper can be caught in the mesh. As the turtle moves to free itself, it can become entangled further. If the 8

mesh of a gill net does not amputate the turtle s entangled extremity, the turtle will often remain entangled and drown. See NOAA Fisheries Office of Protected Resources, Threats to Marine Turtles available at http://www.nmfs.noaa.gov/pr/species/turtles/threats.htm. 22. Because sea turtles are air-breathing reptiles, they will drown if they remain entangled. C. Impacts of Gill Nets and Gill Net Regulations on Sea Turtles 23. The National Oceanic and Atmospheric Administration of the U.S. Department of Commerce ( NOAA ) has recognized that one of the largest threats to the continued existence of protected sea turtles is incidental capture in commercial and recreational fisheries. See NOAA Fisheries Office of Protected Resources, Marine Turtles, available at http://www.nmfs.noaa.gov/pr/species/turtles/threats.htm. 24. The scientific community has repeatedly cited gill nets as one of the greatest threats to sea turtle populations, and North Carolina is often mentioned as an area of high concern. E.g., NOAA Office of Protected Resources, Loggerhead Turtle (Caretta caretta) available at http://www.nmfs.noaa.gov/pr/species/turtles/loggerhead.htm. 25. Recognizing the dangers gill nets pose to non-target species of fish, birds, and sea turtles, nearly all states within the southeastern United States have completely banned or severely restricted the use of gill nets. These states also have the largest populations of sea turtles. 26. Among Atlantic states that have significant sea turtle populations, North Carolina stands out as having imposed the weakest restrictions on gill nets used in state waters all other states have either banned or significantly restricted the use of gill nets. See., e.g., S.C. Code Ann. 50-5-500 (2008) (South Carolina statute severely restricting length of nets, size of mesh, areas of allowance, and requiring attendance of nets at all times); Ga. Code Ann. 27-4-7 (2008) 9

(Georgia statute making use of gill nets illegal, with the exception of limited gill net use for shad and sturgeon); Fla. Const. Art. X, 16 (Florida constitutional article banning use of gill nets); Ala. Admin. Code r. 220-3-.03 (2008) (Alabama regulation severely restricting length of gill nets, size of mesh, areas of allowance, closing many areas seasonally, and requiring attendance of all gill nets at all times); 22-5-04 to -05 Miss. Code. R. (2008) (Mississippi rules severely restricting areas where gill netting is allowed, length of nets, size of mesh, and requiring attendance of gill nets at all times); La. Rev. Stat. Ann. 56:201 (2008) (Louisiana statute banning gill nets in all salt waters; constitutionality of ban upheld in La. Seafood Mgmt. Council v. La. Wildlife & Fisheries Comm n, 719 So.2d 199 (1998)); Tex. Parks & Wild. Code Ann. 66.006 (2008) (Texas statute banning use of gill nets). 27. North Carolina s lack of regulation has resulted in a large quantity of illegal sea turtle injury and death. D. Defendants Licensing and Regulatory Authority 28. In all marine waters of the United States, NMFS has jurisdiction over protected species while those species are in the water. 50 C.F.R 224.101 (2009). Therefore, despite the fact that the gill net fishery in North Carolina is a state managed fishery, state agencies must answer to NMFS regarding endangered and threatened species, and state agencies must apply to NMFS for an ITP. 29. In North Carolina, the MFC is the governmental body that determines the substantive content and conditions placed on a fishing license. DMF serves as the implementing staff to the MFC and is the governmental body that actually reviews and issues licenses in accordance with rules set forth by the MFC. N.C. Gen Stat 113-168.1(f) (2008). The Director 10

of the DMF has a broad proclamation power which may be used to regulate all fisheries activities undertaken by licensees in state coastal waters. 15A N.C. Admin. Code 03H.0103 (2008). 30. Before a fisherman may fish with any gear in North Carolina coastal waters (which consist of internal coastal areas and all waters up to 3 miles offshore), he must receive the appropriate license from DMF in accordance with rules established by the MFC. Defendants currently authorize the use of gill nets by fishermen who have obtained either a commercial license or a recreational commercial gear license. 15A N.C. Admin. Code. 03J.0103 (2008); 15A N.C. Admin. Code. 03O.0302 (2008). 31. Gill net fishing in North Carolina is a state managed fishery. Defendants have jurisdiction to enact and enforce rules and procedures regarding both gill nets and the fish stocks caught with that gear within North Carolina coastal waters. 32. State rules must comply with the ESA s prohibition on take of threatened and endangered species. 16 U.S.C. 1535(f). 33. Defendants affirmatively allow the use of gill nets in nearly all North Carolina coastal waters. See 15A N.C. Admin. Code. 03J.0402 (2008). 34. The few restrictions that Defendants have imposed on gill net use have done little to reduce the level of take of sea turtles. E. Violations of Incidental Take Permit 1528 35. Pursuant to section 10 of the ESA, in 2005 DMF applied for and received from NMFS an ITP for the PSGNRA. The term PSGNRA refers to an area of heightened regulation of gill nets. The permit applies only to the designated areas of Pamlico Sound, and is in effect for only a portion of the year, from September 1 December 1. Ex. 2, ITP 1528. From December 2 August 31 the limited protections afforded by the ITP no longer applies, and there 11

is no greater regulation of gill nets within Pamlico Sound. The current ITP is scheduled to expire in December 2010. Id. 36. The PSGNRA has historically been a Southern flounder gill net fishery. ITP 1528 allows the use of gill nets in the Southern Flounder fishery of the PSGNRA with certain restrictions and assurances of enforcement effort by DMF to prevent and minimize sea turtle take incident to their use. Id. 37. By accepting ITP 1528, DMF is bound by all of its requirements. Takes of sea turtles within the PSGNRA that are incidental to the fishery and are not in compliance with ITP 1528 are illegal and violate the ESA. 16 U.S.C. 1539(a)(2); Ex. 2, ITP 1528, (IV)(C)(6). 38. ITP 1528 requires Defendant DMF to prepare and submit observer reports to NMFS. These observer reports are used to estimate the total number of sea turtle takes in the PSGNRA, including takes by vessels without observers. 39. DMF hires the observers and assigns those observers to various areas of the PSGNRA. The observers arrive at docks in the morning and then request to travel with a gill net fisherman. It is from these observer reports that the number of takes is extrapolated, and therefore it is crucial that adequate observer coverage is maintained and that observer reporting is accurate. 40. ITP 1528 requires 2% observer coverage of the large mesh fishery from September 1-15, 10% observer coverage from September 15-October 31, and 2% observer coverage from November 1-December 1. Id. (IV)(A)(2). 41. As documented by its own annual completion reports, Defendant DMF has not maintained the 10% level of observer coverage from September 15-October 31, and therefore has violated the permit. See, e.g., Blake Price, Sea Turtle Bycatch Monitoring of the 2007 Fall 12

Gillnet Fisheries in Southeastern Pamlico Sound, North Carolina, Completion Report for Activities Under Endangered Species Act Section 10 Incidental Take Permit # 1528, pp. 19-20 (2008), attached as Exhibit 4. 42. ITP 1528 also requires that commercial fisherman report all incidental takes even when there is no observer on board, and that DMF enforce this requirement. Ex. 2, ITP 1528, (IV)(A)(1), (IV)(B)(1). Despite this explicit and crucial mandate, not a single fisherman has reported the incidental take of an injured or dead sea turtle since the permit was issued in 2005, unless an observer was on board the vessel. Memorandum from Nancy Fish, MFC Liaison, to MFC (Aug. 7, 2009), attached as Exhibit 5. 43. Although Defendants were aware of this anomaly, they have not enforced the reporting requirement. 44. In 2007 alone, there were 20 observed sea turtle interactions in the PSGNRA, which resulted in an estimate of 156 total interactions. Ex. 4 at 19-20. 45. Of the 136 unobserved interactions estimated in 2007, not a single one was reported. Id. 46. The ITP requires DMF to enforce all conditions of the ITP. Ex. 2, ITP 1528. The failure to maintain adequate observer coverage, combined with the lack of unobserved take reports and DMF s lack of action regarding either violation, demonstrates that DMF has not enforced the reporting provision, thereby violating the conditions of the ITP. 47. DMF has violated the requirements of the permit and thus the ESA itself. Id. (IV)(C)(6). 13

F. Licensed Gill Net Fishing Results in Illegal Takes of Protected Sea Turtles Outside of the PSGNRA 48. ITP 1528 covers only a portion of the Pamlico Sound estuary in North Carolina and does not apply to any other portion of North Carolina coastal waters. Consequently, if gill net fishing results in the take of sea turtles outside the PSGNRA, it is not authorized by an ITP and therefore violates the ESA. 49. Every species of sea turtle found in U.S. Atlantic waters is found in North Carolina, including the green, loggerhead, Kemp s ridley, leatherback, and hawksbill turtles. See supra paragraph 17. Every one of these turtles is listed as either endangered or threatened pursuant to the ESA. Id. Therefore every species of sea turtle in North Carolina is protected by the take prohibitions set forth in section 9 of the ESA, and every individual take of a sea turtle by a gill net, outside the narrow exceptions to the taking prohibition allowed within the PSGNRA by ITP 1528, is an illegal take. 50. Outside the boundaries of the PSGNRA, there have been few observers placed on any fishing vessels. This means that outside the PSGNRA, state observers are not present on fishing vessels to report of interactions between gill nets and protected turtles. Without observer coverage and reporting it is difficult, if not impossible, to estimate the amount of sea turtle take outside of the PSGNRA. 51. However, there is ample evidence from a variety of other sources that sea turtles are being injured and killed outside the PSGNRA and in violation of the ESA. 52. Defendant Dr. Louis Daniel recently discussed the total amount of gill net effort in North Carolina at an MFC Southern Flounder Advisory Committee meeting. According to Dr. Daniel, there were 36,000 individual gill net trips in estuarine waters in 2008, yielding a 14

conservative estimate of 36 million yards of gill net set in North Carolina estuarine waters in one year. 53. The PSGNRA, which is covered by ITP 1528, accounted for only 1.9 million yards of gill net in 2008. Blake Price, Sea Turtle Bycatch Monitoring of the 2008 Fall Gillnet Fisheries in Southeastern Pamlico Sound, North Carolina, Completion Report for Activities Under Endangered Species Act Section 10 Incidental Take Permit # 1528, p. 7 (2009), attached as Exhibit 6. 54. Based on their own estimates and reports, Defendants are aware, or should be aware, that only about 5% of gill net fishing in North Carolina coastal waters is covered by an ITP. 55. Although the vast majority of gill nets are used outside the PSGNRA, DMF has neither applied for nor received an ITP for any other areas of coastal waters where gill netting occurs. 56. In the summer of 2009, NMFS began a six-month observer program of the Core Sound gill net fishery, which is not part of the PSGNRA. On four of the first five trips, a total of eleven unlawful endangered sea turtle takes were observed. Letter from Dr. Roy Crabtree, Regional Administrator of NMFS Southeast, to Dr. Louis Daniel, Director of NCDMF (July 7, 2009), attached as Exhibit 7. NMFS then warned the DMF that there was excessive and unacceptable take of endangered sea turtles by gill nets in North Carolina waters. Id. 57. In the fall of 2009, NMFS again recognized that North Carolina was in violation of the ESA due to illegal take of sea turtles outside of the PSGNRA. In response to a plan proposed by DMF, NMFS declined to give approval but did caution that steps need to be taken to ensure that those fisheries are operating consistent with the legal requirements of the ESA. 15

Letter from Dr. Roy Crabtree, Regional Administrator of NMFS Southeast, to Dr. Louis Daniel, Director of NCDMF (November 30, 2009), attached as Exhibit 8. 58. Numerous other studies have found illegal take of sea turtles by gill nets on the North Carolina coast. Despite the fact that very few observations were taken in the fall, which, on information and belief is a period of very high turtle activity and interaction, a study completed in 2007 by DMF for the U.S. Fish and Wildlife Service observed a sea turtle take in approximately one out of every 87 individual gill net trips in North Carolina waters outside of the PSGNRA. Blake Price, Estuarine Observer Program in North Carolina, Report to USFS, grant no. F-83-R 22 (2007), attached as Exhibit 9. 59. Combined with the estimates Dr. Daniel reported at the MFC Advisory Committee meeting regarding the total number of gill net trips, this results in an estimate of almost 400 illegal takes outside of the PSGNRA in a single year. 60. A recent study by the National Oceanic and Atmospheric Administration ( NOAA ) estimated the level of loggerhead bycatch in the Mid-Atlantic, and found that the most take by gill nets occurs in North Carolina waters, with take occurring all along the coast. See Kimberley T. Murray, Characteristics and Magnitude of Sea Turtle Bycatch in U.S. Mid- Atlantic Gillnet Gear, 8 Endangered Species Res. 211 (2009), attached as Exhibit 10. 61. Professional charter boat captains and coastal residents have also provided significant evidence of sea turtles outside of the PSGNRA. They have observed, and documented, dozens of interactions between gill nets and protected sea turtles. See, e.g., affidavit of Rick Patterson (October 13, 2009), attached as Exhibit 11; Affidavit of John Hislop (February 23, 2010), attached as Exhibit 12, Affidavit of John Seth Vernon (January 22, 2010), 16

attached as Exhibit 13; Affidavit of Thomas Roller (February 19, 2010), attached as Exhibit 14 (originals on file with undersigned counsel). 62. Information provided by the North Carolina Wildlife Resources Commission ( WRC ), the body that is responsible for sea turtle protection on land, has shown a significant amount of gill net related sea turtle mortality outside of the PSGNRA. NC Sea Turtle Stranding and Salvage Network Database, provided by WRC pursuant to public records request (Sept. 2009). 63. Plaintiff has received injured sea turtles showing evidence of gill net interactions from many areas outside of the PSGNRA. 64. Additionally, take of sea turtles occurs in every season. Scientific research has shown the presence of sea turtles throughout the year, and entanglement data recorded by the WRC shows take throughout the year. Anecdotal evidence from recreational fisherman, coastal residents and Plaintiff also shows that take occurs continually throughout the year. VI. CLAIMS FOR RELIEF First Claim for Relief VIOLATION OF ESA: ILLEGAL TAKE OF PROTECTED SEA TURTLES IN NORTH CAROLINA OUTSIDE OF THE PSGNRA 65. Plaintiff re-alleges, as if fully set forth herein, each and every allegation set forth in this complaint. 66. The ESA states that no person shall: harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct in connection with a protected species. 16 U.S.C 1532(19). 17

67. Defendants have, in direct violation of the ESA, authorized gill nets to operate in areas not covered by the ITP despite knowledge that it has resulted in the injury and death of protected sea turtles. 68. The actions and omissions of Defendants have resulted in the illegal take of innumerable protected sea turtles over the previous decades, and continue to result in the illegal take of protected sea turtles today. 69. Despite knowledge of the take, Defendants have not proposed an adequate remedy for the illegal take, and it will therefore continue into the future. remedy at law. 70. These actions and omissions have harmed Plaintiff and Plaintiff has no adequate Second Claim for Relief VIOLATION OF ITP 1528 AND ESA: NON-COMPLIANCE WITH ITP 1528 AND CONTINUED TAKE OF PROTECTED SEA TURTLES 71. Plaintiff re-alleges, as if fully set forth herein, each and every allegation set forth in this complaint. 72. The ESA allows for the incidental take of protected species via an ITP, 16 U.S.C. 1539(a)(1)(B); however the holder of the ITP must comply with all the requirements of the ITP. Id. 1539(a)(2)(C). 73. The Defendants have not complied with the ITP 1528 requirements of observer coverage, self reporting, or enforcement. The DMF s own completion reports acknowledge the non-compliance but Defendants have done nothing to remedy the situation. 74. Defendant s non-compliance with ITP 1528, by the terms of the ITP, constitutes a direct violation of the ESA. Ex. 2, ITP 1528, (IV)(C)(6). 18

remedy at law. 75. These actions and omissions have harmed Plaintiff and Plaintiff has no adequate VII. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court: (1) Adjudge and declare that Defendants are in violation of the ESA due to their authorization of the use of gill nets in North Carolina state coastal waters (outside of the PSGNRA), which has resulted in the illegal take of protected sea turtles. (2) Adjudge and declare that Defendants lack of compliance with the requirements of ITP 1528 is a violation of the ESA. (3) Enjoin Defendants from allowing any gill net fishing in North Carolina state coastal waters until and unless Defendants can demonstrate compliance with their legal obligations under the ESA. (4) Award Plaintiff its fees, costs, expenses, disbursements, including reasonable attorney s fees, associated with this litigation; and (5) Grant such additional relief as the Court deems just and proper. 19

Respectfully submitted this 23 of February, 2010. /s/ Michelle B. Nowlin N.C. Bar No. 19199 nowlin@law.duke.edu /s/ Patrick Duggan Admitted to practice pursuant to NC Bar 3d Year Practice Rule /s/ Lee Davis Admitted to practice pursuant to NC Bar 3d Year Practice Rule Attorneys for Plaintiff Karen Beasley Sea Turtle Rescue and Rehabilitation Center DUKE ENVIRONMENTAL LAW AND POLICY CLINIC Corner of Towerview Road and Science Drive Box 90360 Durham, North Carolina 27708-0360 Ph: (919) 613-7169 Fax (919) 613-7262 20