Endangered Species Law & Policy

The United States District Court for the Southern District of Texas issued a decision (pdf) denying cross motions for summary judgment in a case brought by a non-profit group against State officials in Texas alleging violation of the Endangered Species Act’s (ESA) prohibition on take of the federally listed whooping crane (Grus americana). Plaintiffs allege that Defendants, who are officials with the Texas Commission on Environmental Quality and the South Texas Watermaster, failed to adequately manage the flow of fresh water into the San Antonio Bay ecosystem during the 2008-2009 winter, which resulted in take of the species.

In their cross motion for summary judgment, Defendants argued that Plaintiffs lack standing. But the court analyzed each element of standing – injury-in-fact, causation, and redressability – and denied Defendants’ motion, stating that the evidence presented by Plaintiff, taken as true, establishes a causal link between Defendants' conduct and Plaintiff's injury. At the same time, the court denied Plaintiff’s motion for partial summary judgment on the issue of standing holding that issues of material fact remain as to whether low flow conditions caused a take of Whooping Cranes.

Defendants also argued that the Eleventh Amendment bars Plaintiffs’ claim, but the court held that Plaintiffs’ suit against State officials for prospective relief falls within an exception to the Eleventh Amendment established by the Supreme Court.

With respect to the issue of liability under section 9 of the ESA for take of whooping cranes, the court rejected Defendants’ arguments that State regulators cannot be held liable. The court noted that numerous courts have held that regulators can be held liable for take of listed species. The court also rejected Defendants’ argument that Plaintiffs failed to present evidence of take sufficient to overcome a motion for summary judgment, opining that there are genuine issues of fact as to Defendants’ actions being the proximate cause of a ‘take’ of Whooping Cranes.  The case went to trial beginning December 5, 2011.