THE ARANSAS PROJECT v. BRYAN SHAW BUDDY GARCIA CARLOS RUBINSTEIN MARK VICKERY AL SEGOVIA GUADALUPE BLANCO RIVER AUTHORITY TEXAS CHEMICAL COUNCIL SAN ANTONIO RIVER AUTHORITY (2014)

United States Court of Appeals, Fifth Circuit..

THE ARANSAS PROJECT, PlaintiffAppellee, 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, DefendantsAppellants, GUADALUPE–BLANCO RIVER AUTHORITY;  TEXAS CHEMICAL COUNCIL;  SAN ANTONIO RIVER AUTHORITY, Intervenors DefendantsAppellants.

No. 13–40317

Decided: December 15, 2014

Before JONES, SMITH, and GARZA, Circuit Judges.   Per Curiam:  After the deaths of some whooping cranesan endangered speciesThe 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 incidentaltake 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 AransasWood 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, surfacewater 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 20082009, 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 20082009 winter, 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 nonprofit 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 TAPs 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 twentythree 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 (1995).   In 1982, Congress amended the ESA to provide exceptions to the strict prohibition on “takes.”   See id. at 691, 115 S.Ct. at 240910.   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 applicants 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 pursuant to 16 U.S.C. 1540, which authorizes citizen suits seeking to enjoin the actions of any person, including any “governmental instrumentality or agency (to the extent permitted by the [E]leventh [A]mendment to the Constitution), who is alleged to be in violation of any provision” of the ESA. TAP asserted that the state defendants' water permitting and regulatory practices had led to private parties withdrawing water from the San Antonio and Guadalupe rivers, in turn leading to a significant reduction in freshwater inflow into the San Antonio Bay ecosystem.   That reduction in freshwater inflow, coupled with a drought, led to increased salinity in the bay, which decreased the availability of drinkable water and caused a reduction in the abundance of blue crabs and wolfberries, two of the cranes staple foods.   According to TAP, that caused the cranes to become emaciated and to engage in stress behavior, such as denying food to juveniles and flying farther afield in search of food, leading to further emaciation and increased predation.   Ultimately, this chain of events led to the deaths of twentythree cranes during the winter of 20082009.   TAP thus alleged that the state defendants' waterpermitting practices effected a taking of whooping cranes, in violation of the ESA, and that such takings would continue to occur absent intervention by the court.   Accordingly, TAP sought declaratory and injunctive relief designed to ensure that the AWB flock had sufficient water resources to prevent future takings.   Before trial, the GuadalupeBlanco River Authority (“GBRA”), Texas Chemical Council, and San Antonio River Authority (“SARA”) (collectively, the “intervenor defendants”) were granted leave to intervene.   The district court conducted an eightday bench trial that included nearly thirty witnesses.   On March 11, 2013, the court issued an exhaustive 124page opinion, which adopted verbatim TAPs proposed fact findings.   The court declared that the state defendants had violated the ESA through their watermanagement practices and were continuing to do so.   The court granted an injunction ordering (1) that [t]he TCEQ, its Chairman, and its Executive Director are enjoined from approving or granting new water permits affecting the Guadalupe or San Antonio Rivers until the State of Texas provides reasonable assurances to the Court that such permits will not take [w]hooping [c]ranes in violation of the ESA