Wednesday, December 17, 2014

Fifth Circuit Denies Rehearing—Over Strong Dissent—in ESA Whooping Crane Case

Back on June 30, a Fifth Circuit panel (Jones, Smith, Garza) reversed a district court judgment, following an eight-day bench trial, in favor of The Aransas Project against directors of the Texas Commission on Environmental Quality.  Aransas Project v. Shaw, 756 F.3d 801, 805 (5th Cir. 2014).  Aransas’s suit had alleged that the Commission violated the Endangered Species Act by allowing excessive water withdrawals from rivers that feed the estuary where whooping cranes live during winter.  The Fifth Circuit panel, in reversing, faulted the district court’s finding that the Commission’s actions had caused the deaths of twenty-three whooping cranes in 2008-2009.  According to the panel, the district court “either misunderstood the relevant liability test or misapplied proximate cause when it held the state defendants responsible for remote, attenuated, and fortuitous events following their issuance of water permits.”  756 F.3d at 817.

On December 15, the Fifth Circuit denied Aransas’s petition for rehearing en banc by an 11-4 vote.  Judge Prado, joined by Judges Dennis and Graves, issued a strongly worded dissent from the denial, accusing the panel of engaging in a de novo reweighing of the evidence inappropriate for appellate review.  Judge Prado characterized the panel’s “reweighing of facts” as “particularly egregious” in light of what he regards as a gross mismatch between the credibility of Aransas’s expert witnesses, with credentials that included a Nobel Prize and MacArthur Fellowships, and the intervenor-defendants’ expert witnesses, whom he characterizes as having “limited experience and insignificant expertise.”  In addition, contrary to the panel’s conclusion regarding proximate causation, Judge Prado regards the causal connection between the Commission’s permitting decisions and the death of the whooping cranes as “straightforward” and “foreseeable.”

—Todd Aagaard

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