Cornerstone of Species Protection or “For the Birds?”: Application of the ESA Take Prohibition in The Aransas Project v. Shaw
By: Molly Masterton, Notes Editor
Any day now, the Fifth Circuit may issue a ruling with immense implications for wildlife and natural resources management efforts in Texas and across the nation. The case is The Aransas Project v. Shaw, and it is one of only a handful of cases in which the federal Endangered Species Act (“ESA”) has been enforced against a state agency. The district court found state officials from the Texas Commission on Environmental Quality (“TCEQ”) vicariously liable through their state water permitting program for the take of endangered whooping cranes in the Aransas National Wildlife Refuge.
The legal issues addressed on appeal to the Fifth Circuit have the potential to impact a number of stakeholders, with private holders of water rights perhaps being the most immediately affected. The focus of the appeal, however, has turned to broader issues regarding the scope of the ESA’s reach. Although the merits ruling and accompanying remedy were controversial, a reversal on either constitutional or causation grounds could undercut the ESA’s ability to address species loss as a comprehensive statutory scheme in the future.
Between 2008 and 2009 a record number of dead whooping cranes were discovered in the Aransas refuge, where many of the rare bird’s only self-sustaining population spend their winters. During that year, the U.S. Fish and Wildlife Service recorded 23 whooping crane deaths in the refuge, a colossal number compared to an estimated overall flock size of 270. The Aransas Project filed an ESA citizen suit in 2011 alleging that TCEQ’s mismanagement of freshwater inflows to the San Antonio and Guadalupe bays caused increased salinity in the watershed, thus compromising whooping crane habitat and leading to at least twenty-three prohibited takes. The district court granted leave to the local water conservation and reclamation district, the Guadalupe-Blanco River Authority (“GBRA”), to intervene in the case. At trial, the district court was swayed by expert testimony for the plaintiffs linking the lack of freshwater inflows to changes in the river basin ecology, and the opinion by Judge Janis Jack found that TCEQ’s “actions and inactions” had harmed the species within the meaning of a Section 9 “take.”
The ESA’s Section 9 prohibition on takes of listed species, by plain language of the statute, may be applied to actions by all “persons,” including any “officer, employee, agent, department, or instrumentality of…any State.” A number of federal courts have held federal agency officials liable under the provision for management practices that harm endangered species. Similar application of Section 9 to state officials has been less frequent. In Strahan v. Coxe, the First Circuit enforced Section 9 against Massachusetts state officials who licensed commercial fishing operations using gillnets and lobster pots that were likely to lead to takes of the endangered northern right whale.
In Aransas, the State has relied in part on the anti-commandeering doctrine, extending from the Tenth Amendment, to assert generally that a federal statutory scheme such as the ESA cannot require states to impose prohibitions on private conduct. The State and GBRA have also both keyed in on causation concerns, arguing that certain intervening factors—including impacts on food sources, such as blue crab, and a flood year in 2008—render the chain of causation too attenuated. Although there is no way to tell what will be the deciding factor in the Fifth Circuit, the three-judge panel presiding over the appeal seemingly focused more on causation than constitutional concerns.
Regardless of the outcome, the Aransas decision will be big news in the realms of wildlife and water resource management. A reversal could open the floodgates to an overhaul of the ESA, a statute that was enacted “to halt and reverse the trend toward species extinction, whatever the cost.” Should Judge Jack’s cutting-edge decision and remedy be affirmed, TCEQ would have to initiate an incidental take permit (“ITP”) and habitat conservation plan in coordination with the Service under ESA Section 10. As the District Judge accurately gleaned from the record before her, “the ITP process is designed to provide some balance between the often conflicting interests of property owners, developers, and conservationists.” This result, described by Judge Jack as a flexible and cooperative process, would arguably fall squarely within the scheme of “cooperative federalism” contemplated by the Endangered Species Act.
 16 U.S.C. §§ 1531 et seq. (2012).
 Aransas Project v. Shaw, No. 13-40317 (5th Cir. 2013).
 2013 U.S. Dist. LEXIS 33258, at *71-174 (S.D. Texas Mar. 11, 2013).
 The district court decision included an order barring TCEQ from issuing new water diversion permits until going through the prescribed ESA process for incidental takes of species. On appeal, however, the court has suspended this order to allow
TCEQ to proceed with its issuance of permits. See Jeremy Heallen, 5th Circuit Blocks Water Permit Ban Following Bird Deaths, Law360 (Mar. 26, 2013).
 Karen M. Hansen, Beveridge & Diamond PC, Fifth Circuit Panel Hears Oral Argument in Whooping Crane
Lawsuit Appeal (Aug. 30, 2013), available at http://www.environmentallawportal.com/texas-aransas-project-shaw-whooping-crane-lawsuit-appeal.
 The Critical Indicator: Whooping Cranes, The Aransas Project, http://thearansasproject.org/situation/whooping-cranes/ (last visited Sept. 10, 2013).
 Aransas Project, 2013 U.S. Dist. LEXIS 33258, at *11-16.
 Id. at *16.
 Id. at *19. Also helpful to The Aransas Project’s case was the fact that the defendants’ experts were consistently discredited due to their limited experience and insufficient knowledge about the subjects upon which they were testifying. Id. at *72.
 16 U.S.C. § 1538(a)(1)(c); U.S.C. § 1532(13).
 See, e.g. Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991); Defenders of Wildlife v. EPA, 882 F.2d 1294 (8th Cir. 1988).
 Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir. 1997).
 Hansen, supra note 5. TCEQ and GBRA relied on hallmark Tenth Amendment cases from the Supreme Court, New York v. United States, 505 U.S. 144, 145 (1992), and Printz v. United States, 521 U.S. 898, 935 (1997). Notably, the state has also argued that the Burford abstention doctrine should have applied in the lower court due to the State’s own comprehensive natural resources management program.
 See Hansen, supra note 5.
 Id. Recording of appellate oral arguments available at http://www.ca5.uscourts.gov/OralArgumentRecordings.aspx.
 TVA v. Hill, 437 U.S. 153, 174 (1978).
 Aransas Project, 2013 U.S. Dist. LEXIS 33258, at *169.