Come and 'take' it: whooping cranes, Texas water rights, Endangered Species Act liability, and reconciling ecological scientific testimony within the context of proximate causation.

Author:Miller, Brett A.
Position:I. Introduction through IV. Challenges with Using Ecological Research as Scientific Evidence to Prove Causation B. Challenges Associated with Proving Ecological Injuries 1. 'Hard' Science vs. 'Soft' Science, p. 99-129 - Author abstract
  1. INTRODUCTION II. BACKGROUND A. The Plight of the Whooping Crane B. Guadalupe Estuary C. Relationship Between Texas Water Rights and Freshwater Inflow in the Guadalupe Estuary D. The Aransas Project's Allegations Against TCEQ III. ENDANGERED SPECIES ACT (ESA) LIABILITY A. Section 9 "Take" Prohibition B. Justice O'Connor's Reliance on Proximate Causation in the Realm of ESA Liability IV. CHALLENGES WITH USING ECOLOGICAL RESEARCH AS SCIENTIFIC EVIDENCE TO PROVE CAUSATION IN THE CONTEXT OF ESA LIABILITY A. The Daubert Trilogy B. Challenges Associated with Proving Ecological Injuries in the Daubert Context 1. "Hard" Science vs. "Soft" Science 2. Complexities of Ecological Field Research Compared with Laboratory Methodology C. Complications with Using Science to Prove Causation for Ecological Injuries in the ESA Context V. THE ARANSAS PROJECT V. SHAW LITIGATION A. District Court's Reliance on Expert Scientific Testimony 1. Inconsistent Review of Expert Scientists 2. The Notorious Blue Crab Debate 3. Contradictory Approach to Daubert's "Scientific Knowledge" Framework B. Fifth Circuit's Reversal on Proximate Causation Grounds C. Fifth Circuit's Denial of TAP's Petition for Rehearing & TAP's Petition to the Supreme Court of the United States VI. FUTURE IMPLICATIONS & WHY THE FIFTH CIRCUIT MADE THE CORRECT DECISION A. Proximate Cause Alleviates the Potential for Treacherous Precedent B. Future Tension Between State Water Rights and Endangered Species Act Protection VII. CONCLUSION I. INTRODUCTION

    Despite the increasing importance of science in the legal arena, distinct scientific disciplines present courts with challenges. The successful preservation of endangered or threatened species requires an understanding of the scientific discipline of ecology. (1) In the realm of Endangered Species Act (ESA) liability, the inherent complexity associated with ecological injuries exacerbates the task of proving causation. The extension of ESA liability to attenuated links of causation has provoked much debate, particularly because these conditions are often prevalent in nature. Although environmentalists recognize that the ESA is essential to the survival of listed species, private landowners often denounce these same provisions as overreaching intrusion by a governmental entity. (2)

    In this light, the proximate causation standard can function as a necessary safeguard to prevent assigning liability to a party or entity that otherwise may be just one insignificant link in an attenuated ecological chain. In the context of proving causation for ESA liability, ecological testimony may degrade the court's ability to reach an equitable outcome. Thus, proximate causation is an essential piece of the ESA liability puzzle. Regarding the unique challenges encountered within the discipline of ecology, this article explores the practicality of the proximate causation requirement--particularly as a necessary restraint on the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. (3)

    In The Aransas Project v. Shaw, the United States District Court for the Southern District of Texas held that the Texas Commission on Environmental Quality (TCEQ), in its authority to manage state water rights, was liable for the "take" of whooping cranes in violation of ESA [section] 9. The Fifth Circuit Court of Appeals reversed the holding because the Aransas Project failed to prove that TCEQ's water permitting program was the proximate cause of the deaths of twenty-three endangered whooping cranes during the drought of 2008-09. As seen during the course of the Aransas Project litigation, proximate causation ensures that trial court decisions are founded upon established legal theory, rather than the complexities of understanding scientific methodology.

    This article does not dispute the importance of science within the legal discipline. Rather, it explores the practicality of incorporating various scientific disciplines into the law, such that the principles underlying these disciplines present inherently different challenges. The dichotomy is apparent from a broad perspective: "In environmental policy, the data gaps between what the law demands and what science supplies reflect the disparate objectives and epistemological approaches of the two fields." (4) Although scientific evidence and testimony will obviously continue their essential roles, the presence of science in the courtroom should not detract from the established truism of proximate causation when examining causal links in complex ecosystems.

    This article begins by outlining the conflict in Aransas Project, describing the relationship between the endangered whooping crane, their essential habitat, and Texas water rights. In Part III, the article reviews the ESA "take" prohibition, specifically elaborating on the importance of Justice O'Connor's adherence to the standard of proximate causation in Babbitt v. Sweet Home. (5) Part IV explores the challenges associated with proving the cause of an ecological injury, an issue exacerbated by the Daubert trilogy, which enumerated a framework for courts to address the admissibility of scientific testimony. (6) Finally, Part V analyzes the Aransas Project litigation, illustrating the dichotomy between the district court's dependence on scientific testimony and the Fifth Circuit's reliance on proximate causation. Part VI concludes by framing the Aransas Project decisions as precedent within the broader ESA debate. In the realm of ecology and the ESA, traditional scientific research settings, such as the laboratory or field, are the best arena for scientific debate, particularly when adherence to proximate causation may enhance the court's ability to reach an equitable decision.


    1. The Plight of the Whooping Crane

      Whooping cranes (Grus americana) currently face the threat of extinction, with merely 500 individuals estimated to exist worldwide. (7) This "majestic bird" is the largest bird in North America, standing an imposing height of five-feet and possessing a wingspan greater than eight-feet. (8) In 1970, the United States Fish and Wildlife Service (USFWS) listed the species as endangered, affording the crane protection under the Endangered Species Act (ESA). (9) The world's only wild population of whooping cranes is the Aransas-Wood Buffalo (AWB) flock, comprised of approximately 300 individuals. (10) The flock annually migrates thousands of miles: from Canada's Wood Buffalo National Park in the northern Alberta province, to their wintering grounds in Aransas National Wildlife Refuge, Texas (Aransas Refuge). (11)

      Robert Porter Allen, a prominent ornithologist in the early twentieth century, initiated conservation efforts to bring this iconic bird back from the brink of extinction. Allen best described the plight of this species: "If we succeed in preserving the wild remnant that still survives, it will be no credit to us; the glory will rest on this bird whose stubborn vigor has kept it alive in the face of increasing and seemingly hopeless odds." (12) Despite being on the verge of extinction in 1941 with just fifteen wildbirds remaining, federal and state conservation efforts have continued the arduous and resource-intensive process of species recovery. (13)

    2. Guadalupe Estuary

      Each fall, whooping cranes embark on their annual migration from the Canadian breeding grounds to the species' winter habitat in the Aransas Refuge, subsequently returning to Canada in April of the following year. The Aransas Refuge, located along the Texas gulf coast, is comprised of 9,000 hectares of salt flats and surrounding estuarine areas. (14) San Antonio Bay, commonly referred to as the Guadalupe estuary, is adjacent to the crane's wintering ground in the Aransas Refuge and considered part of the flock's critical habitat. (15)

      An estuary is a semi-enclosed body of water where the freshwater and saltwater mix, often described as the area "where the river meets the sea." (16) As a result, estuaries are one of the most highly productive natural systems on earth. The Guadalupe estuary receives freshwater inflows from the San Antonio and Guadalupe Rivers, maintaining a dynamic ecosystem that provides the whooping crane flock with essential foraging habitat. (17) Foraging behavior greatly affects a population's health, ability to survive, and reproductive ecology, as an animal's search for food resources is fundamentally intertwined with its environment.

    3. Relationship Between Texas Water Rights and Freshwater Inflow in the Guadalupe Estuary

      The quantity of freshwater flowing into the cranes' critical habitat in the Guadalupe estuary is related to the Texas Commission on Environmental Quality's (TCEQ) permitting authority for Guadalupe...

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