Whooping Cranes and the Fifth Circuit

Thursday, July 10, 2014
by Dave Owen, Associate Professor of Law, University of Maine School of Law*
Whooping Cranes. The Aransas Project v Shaw
Whooping Cranes at ANWR. Photo courtesy of Kevin Sims

In April, 2013, I wrote a post about The Aransas Project v. Shaw, a case involving water management agencies, whooping cranes, and the Endangered Species Act.  The defendant water agencies had issued permits for water withdrawals upstream of important whooping crane habitat.  According to the plaintiffs, the combination of those permits and the 2008-09 drought reduced freshwater inflows to the estuary where whooping cranes feed, leading to food shortages that killed off large numbers of whooping cranes.  Those deaths, the plaintiffs argued, were unpermitted “takes” and were prohibited by section 9 of the ESA.

A federal district court agreed with this theory, but on June 30, the Fifth Circuit reversed.  It determined that the district court had failed to apply a “proximate cause” analysis to the take claims.  Because the district court failed to apply the correct legal standard, the Fifth Circuit found that it owed no deference to the district court’s factual findings.  Considering the record de novo, the Fifth Circuit concluded that the water agencies’ activities were not the proximate cause of the whooping cranes’ deaths.

The reasoning that led the Fifth Circuit to its de novo standard is, to say the least, interesting.  In fact, the district court did recite the proximate cause standard, and it did purport to apply it.  It just applied it in a way that the Fifth Circuit found overly simplistic.  That could be a basis for reversal–appellate courts do review factfinders’ factual conclusions for abuses of discretion–but it doesn’t seem like a basis for de novo appellate review.

There’s also a whiff of hypocrisy in the Fifth Circuit’s reasoning.  It concluded that the district court had been too simplistic  because it had failed to engage with the complexities and contingencies of the alleged causal chain.  Perhaps that’s a fair critique (for an argument that the district court made a mess of the case, see the comments on my earlier post); I am not familiar enough with the factual record of the case to know.

But the Fifth Circuit’s substitute reasoning is also simplistic.  Its core conclusion is that “[c]ontingencies concerning permittees’ and others’ water use, the forces of nature, and the availability of certain foods to whooping cranes demonstrate that only a fortuitous confluence of adverse factors caused the unexpected 2008-09 die-off found by the district court.”  That conclusion contains a big logical leap, which I don’t think is remedied elsewhere in the opinion: it ignores the reality that uncertainty is often a matter of degree.  Just identifying some uncertainty within a chain of causation does not mean that the ultimate outcome could fairly be described as “fortuitous.”  Instead, one must ask how contingent the links in the causal chain were, how much other contributing causes might have added, and how long the causal chain was.

To put it in simple mathematical terms, suppose that event A has a 90% chance of causing event B, which has a 90% chance of causing event C, which has a 90% chance of causing event D.  There is uncertainty at every stage of this causal chain, yet the odds of event A leading to event D still are just under 66%.  We’d probably be comfortable calling event A the proximate cause of event D.  On the other hand, if each event has only a 30% chance of causing the next event, then the odds of event A leading to event D are less than 1%.  Contingencies are present in both causal chains, and the chains themselves are the same length.  But the causal relationships are drastically different.

Or consider historical examples.  One hundred years ago, Gavrilo Princip fired two shots that set in motion a series of events culminating in the slaughter of World War I.  In hindsight, history often looks falsely inevitable, yet I suspect most historians would agree that the links between those shots and the horrors of trench warfare in northeastern France were too many, and too contingent, to identify Princip as the proximate cause of the Battle of the Somme.  But historians probably will identify the 9/11 attacks as the proximate cause of the U.S. invasion of Afghanistan, even though a contingent causal chain linked those events as well.

The point, again, is that it’s not enough to just name uncertainties or other contributing causes, though that’s a logical first step in the analysis.  We also need to think about how much they matter.  And the Fifth Circuit didn’t really do that.  If it had, the results might have been different.  The relationship between permits that allow water withdrawals and actual water withdrawals is pretty direct.  So too is the relationship between upstream water withdrawals and downstream reductions in flow.  The occurence of a severe drought in 2008-09 was, of course, a chance event, but there’s very little chance of Texas avoiding severe droughts throughout the entire duration of a water use permit.  The last links in the causal chain–reduced inflows allegedly causing ecological effects to ripple up the food chain, causing whooping cranes to die off–are probably the most uncertain, but reduced inflows damaging an estuary’s food chain is pretty plausible, and just labeling that outcome contingent ought to have been the start, not the end, of the analysis.

So how much does the case mean for ESA litigation?  The answer, I suspect, is not a whole lot.  Even if courts were committed to embracing the gory details of uncertainty analysis, winning ESA section 9 cases would still be a challenge, for the evidentiary burdens plaintiffs face would be substantial.  For that reason, plaintiffs don’t often try.  This latest decision will likely just reinforce that reality.

– Dave Owen

* Dave Owen’s article is re-posted from Environmental Law Prof Blog, A Member of the Law Professor Blogs Network.


***** FOTWW’s mission is to protect the Aransas/Wood Buffalo population
of wild whooping cranes and their habitat
. *****

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The Aransas Project Comments on Court Ruling

The Aransas Project Logo

Friends of the Wild Whoopers is disappointed in the Fifth Circuit Court of Appeals reversal of the district court’s decision. Yet, it is important to recognize that TAP did win some key aspects of the case. And hopefully TCEQ will seriously reconsider their use of water permits in order to keep the freshwater inflows at a healthy level for the whooping cranes.

July 1, 2014
Charles Irvine, 713-533-1704

Federal court of appeals decision offers roadmap for future cases

Today, The Aransas Project (TAP) announces its analysis of the ruling from the appeals court decision regarding TAP’s legal battle to protect the last naturally migrating flock of endangered whooping cranes. The Fifth Circuit Court of Appeals, in a narrowly-tailored decision, held that the federal district judge misapplied certain legal theories when it found that the TCEQ was liable for the deaths of 23 endangered and federally-protected Whooping Cranes in 2008-2009. TAP is considering its full range of options including further appellate review.

In a 34-page opinion, a panel of three judges of the Court of Appeals for the Fifth Circuit held that the district court misapplied certain legal standards related to causation in its decision.

TAP prevailed on several aspects of the appeal. First, TAP had legal standing to bring the case. Second, TAP presented compelling evidence that up to twenty-three endangered, federally-protected Whooping cranes actually died in 2008-2009. Third, that federal data supporting TAP’s allegations of deaths by U.S. Fish & Wildlife Service’s (USFWS) Tom Stehn was reliable. Fourth, that TAP presented evidence that the crane deaths were related to lack of essential food, water and other essential habitat requirements. And finally, there was no basis for the district court to abstain to a non-existent and ineffectual state of Texas process.

To read TAP’s entire statement click here.

 ***** FOTWW’s mission is to protect the Aransas/Wood Buffalo population
of wild whooping cranes and their habitat
. *****

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Aransas National Wildlife Refuge: The Whooping Crane’s Vulnerable Winter Retreat

Aransas National Wildlife Refuge: The Whooping
Crane’s Vulnerable Winter Retreat

“Perhaps no North American species of bird has come closer to extinction and yet managed to survive into the twenty-first century than has the whooping crane.”

In his article, “Aransas National Wildlife Refuge: The Whooping Crane’s Vulnerable Winter Retreat“, published in the “Prairie Fire“, Paul A Johnsgard, foundation professor emeritus of biological sciences at the University of Nebraska-Lincoln and author of over 50 books on natural history, writes in depth about the last remaining natural wild flock of whooping cranes’ determination and vulnerabilities to survive. Aransas National Wildlife Refuge has been the whooping cranes’ winter retreat since the beginning of time and throughout the years, just as the wild ones have had to endure setbacks, so has the refuge.

To read Paul A Johnsgard‘s article, “Aransas National Wildlife Refuge: The Whooping Crane’s Vulnerable Winter Retreat”, click here.


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Texas oil spill a concern for whooping cranes

Northern Journal

Environment — April 7, 2014 at 8:31 PM From International

Texas oil spill a concern for whooping cranes                                          

by Maria Church                                                                                  


Photo: Petty Officer 3rd Class Carlos Vega Crew members work to remove oil on the beaches of the National Seashore Park on Apr. 1 following the Galveston Bay oil spill in Texas. Whooping crane advocates expressed concern after hearing reports of heavy machinery being used in the cleanup effort.

Crew members work to remove oil on the beaches of the National Seashore Park on Apr. 1 following the Galveston Bay oil spill in Texas. Whooping crane advocates expressed concern after hearing reports of heavy machinery being used in the cleanup effort.

An advocacy group for the protection of endangered whooping cranes says it’s “very concerned” about the impacts of a tanker spill in Texas that resulted in 168,000 gallons of oil being dumped into Galveston Bay, less than 300 km from where the birds overwinter.

Oil globs as large as basketballs began washing up on Matagorda Island last week, an area of the Aransas National Wildlife Refuge where whooping cranes spend the winter season before heading to their northern breeding grounds in Wood Buffalo National Park.

A sizeable operation has been launched by the US Coast Guard to clean up the spill, which happened on Mar. 22 when an oil tanker collided with another ship in the bay, but some are expressing concern that the effects of the cleanup could be devastating to the fragile crane population in the middle of migration.

Chester McConnell, one of the advocates behind Friends of the Wild Whoopers (FOTWW), told The Journal his concern stems from what he sees as a lack of concern for the cranes and other endangered species by the cleanup crew.

“The intensive cleanup efforts were doing the job for other needs associated with the beaches and were not too concerned about wildlife,” he said.

FOTWW, along with other conservation groups, made significant noise after hearing reports of heavy equipment and machinery being used early in the cleanup process.

Last week, their outcry made some headway when it was confirmed that cleanup crews will switch to hand tools and equipment that has a “light touch” in areas sensitive to wildlife.

“As of today, our concerns have subsided a bit,” McConnell said in an email Friday.

Lessons to be learned

The whooping cranes are currently in the middle of a staggered migration period that will eventually see the entire population leave Texas and make its way through the US to their summer home in Wood Buffalo.

According to observers, around 25 per cent of the population has already begun migration.

While immediate concern about the safety of whooping cranes has eased, McConnell said it’s important for leaders and politicians to reflect on how they will respond to future emergency environmental threats.

“Those of us interested in whooping cranes have been concerned for many years that something like this oil spill would occur. There is much boat traffic that goes immediately by the Aransas National Wildlife Refuge. Any of these vessels loaded with oil, chemicals, etc. are a serious threat,” he said.

“Plans need to be developed specifically for the Aransas Refuge vicinity to respond to any future emergencies. Equipment and supplies need to be on call so immediate attention can be directed to any future catastrophe near Aransas Refuge.”

Reports from US media last week confirmed that hundreds of birds were killed by oil from the Galveston spill, a close call for the endangered whooping crane population of less than 300.

“The whooping cranes that use Aransas are the only wild flock remaining on the planet. They are the crown jewels and all other efforts to restore whooping cranes in other locations are dependent on these birds,” McConnell said.

Tags wildlife


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