Fifth Circuit Limits the Reach of ESA "Take Liability" for State Regulatory Agencies Based on "Proximate Causation" Principles

by Holland & Knight LLP


  • The Fifth Circuit's decision provides important legal and factual guidance for whether an action will cause a "take" under the ESA. While the decision only affects states covered by the Fifth Circuit (Texas, Louisiana and Mississippi), the court's heavy reliance on Justice O'Connor's Sweet Home opinion provides solid legal support for using "proximate causation" principles in cases arising elsewhere.
  • Private developers doing work in or near species' habitat can also refer to this ruling in making legal and business decisions on whether to seek an ESA "incidental take" permit where the development may only indirectly impact a listed species and its habitat.

In a major decision interpreting the reach and scope of Endangered Species Act (ESA) "take" liability for state regulatory actions, the Fifth Circuit in The Aransas Project v. Shaw1 (TAP) held that the Texas Commission on Environmental Quality (TCEQ) did not cause the deaths of Whooping Cranes when issuing water withdrawal permits under state law. The court reversed the District Court holding that under the U.S. Supreme Court's decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the commission's issuance of withdrawal permits were not the foreseeable "proximate cause" of Whooping Crane deaths.2 While the decision focuses on state regulatory actions, the "proximate causation" principles in the decision provide guidance on the limits of ESA "take" liability that can benefit private developers as well.3

The Impact of State Agencies' Regulatory Decisions

The issue of whether state agencies normal regulatory decisions will result in ESA liability has been very controversial. Justice Sandra Day O'Connor's concurring opinion in the Supreme Court's Sweet Home decision held that liability for the "take" of listed species under the ESA will be limited by principles of "proximate causation" and "forseeability." That is, there is no ESA liability if the impacts of an action to a species and its habitat are too attenuated and remote. For example, Justice O'Connor opined that there would not be any ESA liability "where a farmer tills his field, causes erosion and makes silt run into a nearby river which depleted oxygen in the water and thereby injures protected fish."4

Since Sweet Home, a number of federal courts have found state regulators liable for "taking" species based on evidence that the state or local agency's regulatory actions were the direct and foreseeable cause of an ESA "take." For example, the First Circuit in Strahan v. Coxe held that the state of Massachusetts was liable under the ESA by allowing commercial fishing in right whale habitat. The court examined the considerable scientific evidence of harm to whales caught up in fishing equipment and employed a "but for" test – that is "but for" the issuance of permits, no taking would have occurred. Other cases have since employed similar reasoning.5

Here, the federal district court in TAP imposed ESA liability on TCEQ, the state agency responsible for water allocation, even though the relationship between the TCEQ permit action and the Whooping Crane deaths was very attenuated with a number of intervening events leading to the crane's deaths. The Whooping Cranes wintered in Texas around the Aransas National Wildlife Refuge. The cranes had been an ESA success story until the winter of 2008-2009 when the flock had purportedly declined to 247 cranes. A coalition of local coastal business owners, environmentalists and bird enthusiasts formed TAP and sued the FWS alleging that the state defendants' actions and failures to act in managing the water diversions in the San Antonio and Guadalupe River systems violated the ESA by "harming and harassing" the cranes – causing the deaths of 23 of that flock. Specifically, TAP alleged that private parties' water withdrawals led to a significant reduction in freshwater inflow into the San Antonio ecosystem. That reduced flow, coupled with the drought, led to increased salinity which decreased the availability of drinkable water and a reduced supply of blue crabs and wolfberry, two of the staple foods for the cranes. This caused the cranes to become emaciated, forcing them to search further for food, thereby increasing the risk of predation.6 This chain of events allegedly led to the 23 crane deaths during the winter of 2008-2009. After a trial, the district court agreed with TAP and enjoined TCEQ from issuing new water permits until the State provided reasonable assurances that the permits would not take Whooping Cranes.

The Fifth Circuit's Holding

In reversing the district court, the Fifth Circuit elaborated on the "proximate case" principles laid out by Justice O'Connor in Sweet Home and other cases holding that "the requirement of proximate cause ... serves to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequences is more aptly described as mere fortuity."7 The court cited evidence in the record of contingencies affecting the chain of causation such as forces of nature, tides and temperature conditions that "dramatically affect salinity within and throughout the Bay and could have affected the blue crab and wolfberry population" – the crane's food source.8 Quoting Justice O'Connor extensively, the court held that "finding proximate cause and imposing liability on the State defendants in the face of multiple, natural, independent, unpredictable and interrelated forest affecting the cranes' estuary environment goes too far."9 Thus, the court concluded that "the district court's ruling does not establish that the state could have reasonably anticipated the synergy among the links in the chain in 2008-09."10 Finally, the court distinguished the case from others where the courts "have held certain regulatory acts resulted in ESA liability where a close connection existed between the liable actor's conduct and habitat destruction or killing of endangered species."11

Implications of Proximate Causation

The Fifth Circuit's decision provides important legal and factual guidance for whether an action will cause a "take" under the ESA. While the decision only affects states covered by the Fifth Circuit (Texas, Louisiana and Mississippi), the court's heavy reliance on Justice O'Connor's Sweet Home opinion provides solid legal support for using "proximate causation" principles in cases arising elsewhere. Thus, while the case primarily focuses on state regulatory actions, its limiting principles will benefit all actions, whether public or private, that may indirectly impact a listed species and its habitat. State and local agencies now have clearer guidance that the normal issuance of permits under state law will not result in ESA liability based on an attenuated chain of causation.

Private developers doing work in or near species' habitat can also refer to this ruling in making legal and business decisions on whether to seek an ESA "incidental take" permit where the development may only indirectly impact a listed species and its habitat. In order to benefit from this ruling, public and private entities will need to develop solid factual and expert evidence to support any claim that the impacts to listed species and their habitat from proposed projects or actions are too attenuated to impose ESA liability.


1 2014 WL 2932514 ( 5th Cir. June 30, 2014)

2 See 515 U.S. 687 ( 1995) The Sweet Home court upheld FWS definition of "take" under the ESA as including "harm" as covering "significant habitat modification" by significantly impairing essential behavioral patterns including "breeding, feeding or sheltering." 50 C.F.R. §222.102.

3 "Proximate causation" is the legal principle that liability should not be imposed for the remote and unforeseeable consequences of an act. In affirming this principle the Supreme Court recently held that "a requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between the conduct and result is so attenuated that the consequence is more aptly described as mere fortuity." Paroline v. United States, 134 S.Ct. 1710, 1719 (2014).

4 515 U.S. at 713

5 Loggerhead Turtle v. Cnty Council of Volusia Co. Fla 148 F. 3d. 1231 (11th Cir. 1998) (County's authorization of nighttime vehicular beach traffic and regulation of outdoor lighting could directly resulted in killing of newly hatched loggerhead turtles by misdirecting them away from the sea); Anim. Welfare Inst. v. Martin, 623 F.3d. 19 (1st Cir. 2010) (licensing of animal traps directly resulted in the taking of endangered lynx).

6 Op. at p. 15

7 Op. at p.14

8 Op. at p. 15

9 Op. at p. 16

10 Op. at p. 15

11 Op. at p. 14

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Holland & Knight LLP | Attorney Advertising

Written by:

Holland & Knight LLP

Holland & Knight LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.