Fifth Circuit Denies Full Court Rehearing In Endangered Whooping Cranes Case

By Lars-Eric Hedberg

Dec. 16 — A federal appeals court declined to grant a full court hearing on the issue of whether the deaths of endangered whooping cranes in a wildlife refuge downstream from authorized water withdrawals are too remote to prove a “take” under the Endangered Species Act.

In a Dec. 15 order, the U.S. Court of Appeals for the Fifth Circuit denied a petition for rehearing en banc filed by the Aransas Project, a conservation group. Eleven judges voted against rehearing and four judges voted in favor.

A three-judge panel of the Fifth Circuit ruled June 30 that the district court had failed to articulate “why the remote connection between water licensing, decisions to withdraw river water by hundreds of users, whooping crane habitat, and crane deaths during a year of extraordinary drought compels ESA liability” (Aransas Project v. Shaw, 756 F.3d 801, 78 ERC 2138, 2014 BL 181990 (5th Cir. 2014)).

Writing for three of the dissenting judges, Judge Edward C. Prado noted that he would have granted the petition because the panel had independently weighed “facts to render judgment in violation of fundamental principles of federal law.” He noted that the Supreme Court had previously reversed the Fifth Circuit for “improperly reweighing” the district court's findings of fact, rather than exclusively focusing on questions of law (Pullman-Standard v. Swint, 456 U.S. 273, 290 (1982)).

He also said that dissenting opinions in the Fifth Circuit had expressed concern with the circuit's arguable reweighing of facts, and, if unaddressed, this phenomenon would invite aggrieved district court litigants to seek retrials on appeal in the circuit.

The judges who voted against rehearing did not file an opinion with their order.

Jim Blackburn, an attorney from Blackburn Carter PC, one of the firms representing the project, told Bloomberg BNA that his client “is disappointed that a rehearing was not granted, but gratified by the dissent.”

He said his client would file a petition in the U.S. Supreme Court within 90 days.

Petition—Improper Appellate Review

The Aransas Project contended that the high court should grant its petition based on the importance of its appeal—the survival of whooping cranes through the preservation of their habitat—and the panel's improper appellate review of the district court's findings.

Specifically, it argued that the June ruling conflicts with an earlier Fifth Circuit decision and with established ESA case law in other circuits. These decisions, according to the project, have “held that liability exists when governmental officials authorize activities undertaken by third-parties that cause a ‘take.' ”

The project also contended that the panel undertook a de novo review of the facts—considered the facts of the case anew without referring to the lower court finding—which conflicts “with established standards for appellate review.” Typically, questions of law rather than findings of fact are subject to de novo review by a higher or appellate judicial body.

Moreover, even if the district court used an incorrect test for proximate cause, which is the test for determining whether the water withdrawal permits are sufficiently related to the crane habitat and crane deaths, “Supreme Court precedent requires remand, because appellate courts should not make fact findings” or re-weigh the evidence, the project contended.

State Water Permitting at Issue

The project alleged in its March 2010 complaint that the Texas Commission on Environmental Quality's water permitting actions reduced freshwater flows to the whooping cranes' habitat, thus increasing salinity, reducing food sources, such as blue crab and wolfberry, and causing crane deaths in the winter of 2008-2009.

It asked the U.S. District Court for the Southern District of Texas to enjoin the commission from issuing new permits to withdraw water from the Guadalupe and San Antonio rivers and an order directing the commission to obtain an incidental take permit and complete a habitat conservation plan.

The court ruled in March 2013 that the state officials “can be and are liable for a ‘take' of the whooping cranes under Section 9” of the act because they authorized the activity—in this case, the water withdrawals, that caused the take (Aransas Project v. Shaw, 930 F. Supp. 2d 716, 2013 BL 85467, (S.D. Tex. 2013)).

It granted the project's request for an injunction and ordered state officials to apply for an incidental take permit from the U.S. Fish and Wildlife Service under Section 10 of the act.

After the district court rejected the commissioners' and Guadalupe-Blanco River and San Antonio River Authorities' motion for an emergency stay, the Fifth Circuit granted the stay so the agency could continue to issue permits pending this appeal.

Jim Blackburn of Blackburn & Carter; Mary Conner and Charles Irvine of Irvine & Conner PLLC; Jeff Mundy of the Mundy Firm PLLC; and David Kahne, a private practitioner, represent the Aransas Project in this matter.

Jonathan F. Mitchell of the Office of the Solicitor General and Evan Scott Greene of the Office of the Attorney General represented the commissioners.

Edward F. Fernandes and Kathy E.B. Robb of Hunton & Williams LLP; Kathryn Smyth Snapka of the Snapka Law Firm; Bruce Wasinger, a private practitioner; and Molly Cagle, Carlos R. Romo, Evan A. Young, Aaron Michael Streett and Michelle S. Stratton of Baker Botts LLP represent Guadalupe-Blanco River Authority in this matter.

Edmond Robert McCarthy Jr. of Jackson, Sjoberg, McCarthy & Townsend LLP and David W. Ross of the Law Offices of David Ross PC represented the San Antonio River Authority.

Kenneth R. Ramirez of the Law Offices of Ken Ramirez and Amy Leila Saberian of Enoch Kever PLLC represented the Texas Chemical Council.

To contact the reporter on this story: Lars-Eric Hedberg in Washington at lhedberg@bna.com

To contact the editor responsible for this story: Greg Henderson at ghenderson@bna.com

The order by the U.S. Court of Appeals for the Fifth Circuit is at http://www.bloomberglaw.com/public/document/.