July 21, 2014

Federal court rejects state liability for take of endangered whooping cranes based on issuing water right permits

By Anthony L. Francois Senior Attorney

In a recent decision, the Fifth Circuit Court of Appeals held that Texas’ water rights permitting system did not result in illegal take of endangered whooping cranes merely because water was legally diverted from rivers that ultimately flow to one of the rare birds’ habitats on the Texas Gulf Coast. This is an important victory for balance and sanity in the administration of the Endangered Species Act. The Fifth Circuit chided the trial court for not properly applying the well-understood rules of proximate cause in determining whether the state agency had killed whooping cranes through its water rights permitting system, and also clarified important limits on when the future use of property can be enjoined even where a past ESA violation has been established.

Whooping cranes populations are still low but are steadily rising overall after several decades of federal protection. They migrate annually between two refuges, one in Canada and the other, the Aransas National Wildlife Refuge, on the Gulf Coast of Texas. A severe Texas drought in 2008-09 stressed the cranes and contributed to a number of deaths. The drought year was a set back, but the evidence is that their numbers have continued to climb since then. Despite this overall good outlook for the species, a group of fishing and bird watching guides and other activists decided that the diversion of water hundreds of miles upstream had killed the cranes, and sued the State of Texas for legally permitting those diversions.

The trial court ruled that Texas had killed 23 cranes by permitting water diversions dozens and even hundreds of miles away, and ordered the state to propose a habitat conservation plan and apply for an incidental take permit, under which federal wildlife conservation laws would have displaced Texas state law in the approval and administration of water rights. But the Fifth Circuit reversed the trial court, and held that the chain of events that led from distant water diversions, to small changes in salinity in the refuge, to changes in number of blue crabs, to changes in crane foraging patterns, to stress and ultimately the death of several cranes, every step of which was suggested by computer modeling and estimation rather than direct proof, was too attenuated a sequence for the issuance of water right permits to be the legal or proximate cause of the crane deaths.

The Fifth Circuit also held that even if water diversions in one season had legally caused the take of cranes in that year, the plaintiffs had not made any showing that enjoining future water diversions, or subjecting the entire water rights permitting system to an incidental take permit, was warranted, because there is was no evidence that further take of whooping cranes was ongoing or imminent.

In addition to being a very favorable ruling on the merits, the Fifth Circuit’s decision indirectly repudiates the strategy which the bird watching businesses and their activist allies employed. Rather than suing the upstream water users for take under the Endangered Species Act, the plaintiffs sued the State of Texas for issuing the permits under which the water rights were exercised. If this strategy succeeds, then activists gain increased leverage in using the Endangered Species Act for improper purposes.

For example, if the plaintiffs had to sue every water right holder on two river systems for take, this would have been a significantly more difficult case. How would they determine whom to sue, or prove how much water that person had used, and whether that amount of water made any contribution to mortality of the whooping cranes many miles away? And what remedies could they impose on a case by case basis against all of these water rights holders? And how would they explain to the public why they were trying to deny water to all of those users? Plaintiffs who sued even some of the water users directly would have been taking a public stand against each of them, their businesses, and their use of their private property.

The procedural complexity, cost, adverse publicity, and work effort of such a flood of ESA citizen suits is unappealing to even well funded organizations. By suing the water right permitting agency instead, the plaintiffs hoped to be able to prove take liability in a much simpler case that focused on the alleged cumulative results of the water diversions. The plaintiffs also were shielded from dealing with the actual water users, and could argue for remedies that would not be imposed on individual water users.  By suing the bureaucracy instead of the water users, the plaintiffs got the more beneficial publicity of suing a hapless government agency for which nobody has an real sympathy.

And, by suing the agency, the plaintiffs tried to force it to negotiate for a habitat conservation plan as a condition of obtaining an incidental take permit, with both the contents and implementation of the plan subject to judicial oversight. This habitat conservation plan (HCP) would have become a de facto alternate legal framework under which all of the water rights on two rivers would have been administered, replacing existing statutory and judicial water law. HCPs are expensive, burdensome, and time consuming exercises in bureaucracy, as even their greatest supporters would agree. It is hard to imagine a federal court ordering an individual water right owner to apply for an HCP. On the other hand, the trial court in this case, after improperly determining that the water rights permitting system killed several whooping cranes, easily ordered the State of Texas to apply for an HCP.

So, by reversing the trial court’s improper finding that bureaucrats killed birds by issuing water right permits, the court of appeals also turned back a strategy that would have displaced hundreds if not thousands of water right owners from their legal position and subordinated all of their water rights to a federally supervised water management program with no real benefit for endangered whooping cranes. A good outcome for water rights, for balanced administration of the Endangered Species Act, and for the proper approach to judicial resolution of these types of conflicts.

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