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Aransas Project v. Shaw

ELR Citation: 44 ELR 20146
Nos. 13-40317, (5th Cir., 06/30/2014)

The Fifth Circuit reversed a lower court decision barring the Texas Commission on Environmental Quality (TCEQ) from issuing new permits to withdraw water from rivers that feed the estuary where wild whooping cranes make their winter home. In that case, the district court held that TCEQ violated ESA §9 by failing to properly manage freshwater inflows into the San Antonio and Guadalupe bays during the 2008-2009 winter, thereby causing an unlawful take of the world’s only self-sustaining, wild Whooping Crane population in the Aransas National Wildlife Refuge. But the appellate court reversed, holding that the lower court's finding of proximate cause and foreseeability are lacking as a matter of law. The deaths of the whooping cranes are too remote from TCEQ's permitting withdrawal of water from the San Antonio and Guadalupe Rivers. As such, the state defendants cannot be held liable for a take or for causing a take under the ESA. Even if the state defendants should be held liable, the injunction was an abuse of discretion.