775 F.3d 641 (5th Cir. 2014), 13-40317, Aransas Project v. Shaw

Docket Nº:13-40317
Citation:775 F.3d 641
Opinion Judge:PER CURIAM:
Party Name:THE ARANSAS PROJECT, Plaintiff-Appellee, v. BRYAN SHAW, in His Official Capacity as Chairman of the Texas Commission on Environmental Quality; BUDDY GARCIA, in His Official Capacity as Commissioner of the Texas Commission on Environmental Quality; CARLOS RUBINSTEIN, in His Official Capacity as Commissioner of the Texas Commission on Environmental Q
Attorney:For Aransas Project, Plaintiff - Appellee: James B. Blackburn Jr., Blackburn Carter, P.C., Houston, TX; Mary B. Conner, Attorney, Charles William Irvine, Attorney, Irvine & Conner, P.L.L.C., Houston, TX; David Alfred Kahne, Law Office of David A. Kahne, Houston, TX; John Jeffery Mundy, Mundy Firm...
Judge Panel:Before JONES, SMITH, and GARZA, Circuit Judges.
Case Date:June 30, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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775 F.3d 641 (5th Cir. 2014)

THE ARANSAS PROJECT, Plaintiff-Appellee,

v.

BRYAN SHAW, in His Official Capacity as Chairman of the Texas Commission on Environmental Quality; BUDDY GARCIA, in His Official Capacity as Commissioner of the Texas Commission on Environmental Quality; CARLOS RUBINSTEIN, in His Official Capacity as Commissioner of the Texas Commission on Environmental Quality; MARK VICKERY, in His Official Capacity as Executive Director of the Texas Commission on Environmental Quality; AL SEGOVIA, in His Official Capacity as South Texas Watermaster, Defendant-Appellants, GUADALUPE-BLANCO RIVER AUTHORITY; TEXAS CHEMICAL COUNCIL; SAN ANTONIO RIVER AUTHORITY, Intervenors, Defendant-Appellants

No. 13-40317

United States Court of Appeals, Fifth Circuit

June 30, 2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Texas.

For Aransas Project, Plaintiff - Appellee: James B. Blackburn Jr., Blackburn Carter, P.C., Houston, TX; Mary B. Conner, Attorney, Charles William Irvine, Attorney, Irvine & Conner, P.L.L.C., Houston, TX; David Alfred Kahne, Law Office of David A. Kahne, Houston, TX; John Jeffery Mundy, Mundy Firm, P.L.L.C., Austin, TX; Charles Patrick Waites, Johnson, Deluca, Kurisky & Gould, P.C., Houston, TX.

For BRYAN SHAW, in his official capacity as Chairman of the Texas, Commission on Environmental Quality, BUDDY GARCIA, in his official capacity as Commissioner of the Texas Commission on Environmental Quality, CARLOS RUBINSTEIN, in his official capacity as Commissioner of the Texas Commission on Environmental Quality, MARK VICKERY, in his official capacity as Executive Director of the Texas Commission on Environmental Quality, Al Segovia, Defendants - Appellants: Jonathan F. Mitchell, Solicitor General, Office of the Solicitor General for the State of Texas, Austin, TX; Evan Scott Greene, Office of the Attorney General, Office of the Solicitor General, Austin, TX.

For Guadalupe-Blanco River Authority, Intervenor Defendant - Appellant: Aaron Michael Streett, Michelle Shamblin Stratton, Baker Botts, L.L.P., Houston, TX; Molly Jan Cagle, Esq., Carlos Ricardo Romo, Esq., Evan A. Young, Attorney, Baker Botts, L.L.P., Austin, TX; Edward F. Fernandes, Attorney, Hunton & Williams, L.L.P., Austin, TX; Kathy E. B. Robb, Attorney, Hunton & Williams, L.L.P., New York, NY; Kathryn Smyth Snapka, Esq., Trial Attorney, Snapka Law Firm, Corpus Christi, TX; Bruce Wasinger, Seguin, TX.

For Texas Chemical Council, Intervenor Defendant - Appellant: Kenneth R. Ramirez, Counsel, Law Offices of Ken Ramirez, Austin, TX; Amy L. Saberian, Enoch Kever, P.L.L.C., Austin, TX.

For San Antonio River Authority, Intervenor Defendant - Appellant: Edmond Robert McCarthy Jr., Esq., Jackson, Sjoberg, McCarthy & Townsend, L.L.P., Austin, TX; David Wesley Ross, Esq., Law Offices of Davd Ross, P.C., San Antonio, TX.

For Cps Energy, Amicus Curiae: Russell S. Johnson, Esq., Carl Ryan Galant, Esq., McGinnis, Lochridge & Kilgore, L.L.P., Austin, TX.

For City of Kerrville Texas, Structural Metals, Incorporated, Amicus Curiae: Amy Marie Emerson, Lloyd Gosselink Rochelle & Townsend, P.C., Austin, TX.

For City of Victoria, Amicus Curiae: Michael J. Booth, Booth, Ahrens & Werkenthin, Austin, TX.

For Texas Public Policy Foundation, Amicus Curiae: Mario Loyola, Texas Public Policy Foundation, Austin, TX.

For Texas Water Conservation Association, Amicus Curiae: Lyn Elizabeth-Raue Clancy, General Counsel, Lower Colorado River Authority, Austin, TX.

For Texas Farm Bureau, American Farm Bureau Federation, Oklahoma Farm Bureau Legal Foundation, Oregon Farm Bureau Federation, Wyoming Farm Bureau Federation, California Farm Bureau Federation, Mississippi Farm Bureau Federation, Louisiana Farm Bureau Federation, Amicus Curiaes: Sydney W. Falk Jr., Bickerstaff, Heath, Delgado & Acosta, L.L.P., Austin, TX.

For Defenders of Wildlife, Amicus Curiae: Jason Craig Rylander, Esq., Defenders of Wildlife, Washington, DC.

For Nature Canada, Amicus Curiae: Marisa Perales, Lowerre, Frederick, Perales, Allmon & Rockwell, Austin, TX.

For Hope Babcock, Reed Benson, Lynn Blais, Jeremy Brown, Holly Doremus, Gabriel Eckstein, Victor Flatt, Kelly Haragan, Amy Hardberger, Oliver Houck, John Leshy, Dave Owen, Patrick Parenteau, Zygmunt Plater, Daniel Rohlf, Thomas Mcgarity, Dan Tarlock, Melinda Taylor, Gerald Torres, Wendy Wagner, Sandra Zellmer, Amicus Curiaes: Melinda E. Taylor, University of Texas School of Law, Austin, TX.

Before JONES, SMITH, and GARZA, Circuit Judges.

OPINION

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PER CURIAM:

After the deaths of some whooping cranes--an endangered species--The Aransas Project (" TAP" ) sued directors of the Texas Commission on Environmental Quality (" TCEQ" ) under the Endangered Species Act (" ESA" or the " Act" ). TAP sought and was granted an injunction prohibiting TCEQ from issuing new permits to withdraw water from rivers that feed the estuary where the cranes make their winter home. The injunction also required TCEQ to seek an incidental-take permit (" ITP" ) from the U.S. Fish and Wildlife Service (" FWS" ). A motions panel of this court stayed the injunction pending appeal. We conclude that the district court's opinion misapplies proximate cause analysis and further, even if proximate cause had been proven, the injunction is an abuse of discretion. The judgment is reversed.

I.

The whooping crane is a majestic bird that stands five feet tall and has a wingspan of more than eight feet. It once came close to extinction and, despite international recovery efforts, is still endangered. The world's only wild flock, called the Aransa-Wood Buffalo (" AWB" ) flock, consists of almost 300 birds and inhabits the Aransas National Wildlife Refuge (" the Refuge" ) in Texas during the winter and Wood Buffalo National Park in Canada in the summer. Adjacent to the Refuge is San Antonio Bay, also known as the Guadalupe Estuary, which provides a critical habitat for the flock and receives freshwater inflows primarily from the San Antonio and Guadalupe Rivers. The State of Texas owns the state's surface water, including the water in the San Antonio and Guadalupe River systems, and holds it in trust for the citizens of the state. Under Texas law, surface-water capture and use is regulated by TCEQ, a state agency that, through permitting processes and regulatory powers, can affect the availability of fresh water to users throughout the state.

According to reports issued by the Refuge's biologist, the AWB flock consisted of about 270 whooping cranes in 2008. During a severe drought in the winter of 2008-2009, four crane carcasses were recovered in the Refuge. Necropsies were performed on two of them, and in both instances, emaciation was listed among other factors as a cause of death. Using aerial surveys, the biologist concluded that nineteen other cranes died during that season. Thus, by the end of the 2008-2009 winter,

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the flock had purportedly declined to 247 cranes.

When reports of those crane mortalities became known, various environmentalists, local coastal business owners, bird enthusiasts, and others formed TAP, a non-profit corporation whose objective is to protect the habitat of the whooping crane; its members have expressed direct interests in the continued vitality of the AWB flock and the Refuge, ranging from personal enjoyment of the birds to various business interests. TAP sued on behalf of itself and its members, alleging that various TCEQ officials (the " state defendants" ) had violated the ESA, 16 U.S.C. § 1531 et seq. The crux of TAP's complaint was that the state defendants' actions and failures to act in managing water diversion in the San Antonio and Guadalupe River systems violated the ESA by harming and harassing cranes in the flock and causing the deaths of twenty-three cranes.

A.

The ESA applies to all " persons," including " any officer, employee, [or] agent, . . . of any State." 16 U.S.C. § 1532(13). The Act forbids " takes" of endangered species such as the whooping crane. Id. § 1538(a)(1)(B). " The term 'take' means to harass, harm, . . . wound, [or] kill@ protected species. Id. § 1532(19) . " Harm" includes " significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3(c). " Harass . . . means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering." Id. " Congress intended 'take' to apply broadly to cover indirect as well as purposeful actions." Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704, 115 S.Ct. 2407, 2416, 132 L.Ed.2d 597 (1995).

In 1982, Congress amended the ESA to provide exceptions to the strict prohibition on " takes." See id. at 691, 115 S.Ct. at 2409-10. Under the revised 16 U.S.C. § 1539(a)(1)(B), the Secretary of the Interior may issue an ITP authorizing " takes" that are " incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." An ITP is issued by the U.S. Fish and Wildlife Service (" FWS" ) after the development and approval of a Habitat Conservation Plan (" HCP" ).1 HCPs must include, among other things, information regarding the applicant's plan to " minimize and mitigate" the impacts likely to result from incidental takes. 16 U.S.C. § 1539(a)(2)(A)(ii).

B.

TAP sued the state defendants...

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