Two vacant lots, located at 1115 and 1125 Caxambas Drive, are well known for its gopher tortoises and their characteristic half-moon shaped burrows. These two sites also contain several City of Marco Island Do Not Disturb signs, indicating that gopher tortoises are protected and it is “illegal to take, harm, harass or impact this animal, eggs and/or burrow. Violation of State and/or City Regulations could result in up to $5,000 fine per violation if destruction or harassment is observed.” Gopher tortoises are a threatened species and protected by Florida Statute Section 162.06 and 162.12 and City of Marco Island Code of Ordinance Section 14-37.
Gopher tortoise burrows are protected by Florida Law, which means that burrows or any land within 25 feet of a burrow cannot be disturbed without a Florida Fish and Wildlife Conservation Commission (FWC) gopher tortoise permit.
On May 9, 2019, a tractor trailer from KAM Concrete Pumping drove onto the vacant lots at 1115 and 1125 Caxambas Drive attempting to make a U-turn. It got mired deep in the soft sand and the driver was unable to drive the vehicle out.
Jason Smalley, a City of Marco Island Planning and Zoning Department employee was doing some non-related inspection in the area. He first noticed that the posted gopher tortoise signs had been knocked down. That’s when he became aware that the KAM truck was stuck on the property and the driver was attempting to get the truck out of the site. Smalley also realized that there were multiple gopher tortoise burrows on the property. He immediately called Code Enforcement and FWC and began taking photos to establish the proximity of the tire tracks to the burrows.
Matt Finn of Goodland was also in the area and came to the scene. Finn provided written testimony to Code Enforcement that at least three gopher tortoise burrows were collapsed.
KAM Concrete Pumping was issued a Notice of Violation for “activities within a protected zone” and appeared before the Magistrate on May 28, 2019.
At the hearing, KAM’s attorney argued that the City of Marco Island had not proven that a “disturbance to the burrows has occurred per the Statute.”
KAM’s attorney also stated that “the driver does not speak English, so when he saw the sign, he was not able to decipher exactly what the sign said.” For these two reasons he requested that the case be dismissed.
The attorney for the City of Marco Island responded that “just because the signs are not in Spanish is irrelevant.” Licensed drivers in the State of Florida should be able to read basic traffic signs. He also stated that the City would have given reasonable notice that there are gopher tortoises on the premises based on the presence of gopher tortoise signs.
Marco Island Police Capt. Dave Baer added that Matt Finn is a registered FWC Gopher Tortoise agent and has offered his written testimony. Unfortunately, the written testimony was not signed and notarized. The City requested a continuance. The magistrate granted the continuance, but only to have live testimony by Matt Finn.