The 5th Circuit Court of Appeals decided a major case this week involving water management and the Endangered Species Act. The Court ruled that the water management agency of the State of Texas was not liable for “take” of endangered whooping cranes on the drought-stricken Aransas National Wildlife Refuge in the winter of 2008-09. The appeals court’s decision in The Aransas Project v. Shaw reversed a landmark victory for the environmental plaintiffs in the trial court.
The case involved several factual and legal disputes, but the ultimate issue was whether Texas, in permitting and managing water uses under state law, had caused the deaths of endangered whooping cranes and therefore violated the ESA. The lower court found that 23 cranes had died on the refuge during the 2008-09 winter, that their deaths were caused by habitat declines caused by low water levels in the Guadalupe Estuary (San Antonio Bay), and that Texas could have used its powers under state water law to prevent such low water levels. Thus, even though Texas itself was not the water user, it had violated the ESA prohibition on “take” of listed species. The court ordered Texas to seek an “incidental take permit,” by which the ESA allows limited harm to listed species caused by otherwise-lawful actions, but also provides certain protections for species and their habitats.
On appeal, the case turned on the issue of causation, and the 5th Circuit held that the lower court had gotten it all wrong. While it upheld the trial court’s disputed finding that 23 cranes had died on the refuge, the appeals court found that the causal chain between Texas’ actions and the dead cranes was too attenuated, and the harm was not reasonably foreseeable. The court saw a “number of contingencies affecting the chain of causation from licensing to crane deaths … all outside the state’s control and often outside human control,” including the actions of water users and the vagaries of weather. The court summarized its reasoning on p. 31 by stating, “Finding proximate cause and imposing liability on the State defendants in the face of multiple, natural, independent, unpredictable and interrelated forces affecting the cranes’ estuary environment goes too far.”
The 5th Circuit’s decision may be disappointing for those who care about rivers and wildlife. But it is not all that surprising. Not only is the 5th Circuit Court of Appeals widely regarded as quite conservative (much like the states it covers: Louisiana, Mississippi, and Texas), but it had already put a hold (or stay) on the lower court’s order during the appeal process. In addition, the new decision could have been worse as precedent for future ESA cases involving water use. Notably, the 5th Circuit reached the merits of the case by rejecting some of Texas’ arguments, including one that the federal courts should “abstain” and leave the entire dispute to be decided by the State.
Does the Aransas Project decision mean that state water officials have nothing to fear from the ESA? No, although suits against a state for violating the “take” prohibition will probably always be legally and factually difficult to win. But a case involving, say, a fish kill caused by river dewatering, directly caused by water diversions that the state arguably had legal authority to restrict or prevent, would present a different case. That would be especially true if the fish kill were not a one-time event (as the 5th Circuit saw the 2008-09 crane deaths), and if the case were brought outside the 5th Circuit. But for now, it appears that the “take” prohibition will continue to have limited effect in the water management context, leaving the job of protecting listed species and their river habitats to federal agencies subject to ESA section 7.