AUSTIN – The Texas Public Policy Foundation has submitted an amicus curiae brief to the U.S. Court of Appeals for the 5th Circuit in The Aransas Project v. Shaw. The brief challenges federal Judge Janis Graham Jack’s ruling that the presumed deaths of 23 federally protected whooping cranes at the Aransas National Wildlife Refuge (ANWR) were caused by Texas Commission of Environmental Quality’s (TCEQ) regulation of the water in the Guadalupe and San Antonio River basins, thereby violating the federal Endangered Species Act. The brief was written by Mario Loyola, director of the Center for Tenth Amendment Studies, and Josiah Neeley, policy analyst in the Armstrong Center for Energy & the Environment.

“Our amicus curiae brief focuses on the federalism issues raised by this case,” said Mario Loyola, Director of TPPF’s Center for Tenth Amendment Studies, “The district court held that TCEQ is liable for the deaths of 23 whooping cranes because it allowed private citizens to divert water from the Guadalupe and San Antonio Rivers hundreds of miles upstream according to established water rights. Under that patently erroneous theory of causation, the Endangered Species Act ceases to be a law of general applicability, with incidental application to the states, and becomes an unconstitutional federal commandeering of state agencies.”

“This case has potentially historic significance,” continued Loyola. “The district court relied substantially on a First Circuit case out of Massachusetts, Strahan v. Coxe (1997), which ruled that states may be liable for violations of the Endangered Species Act when they issue licenses under which private parties commit violations of the Act. That theory of causation-by-regulation is just a smokescreen for yet another federal commandeering of the states in violation of both the Constitution and the Supreme Court’s specific prohibitions. Strahan is wrong, and the Fifth Circuit is well-advised to ignore it. The court should instead heed the Supreme Court, which has repeatedly insisted that the federal government cannot command the states to regulate in accordance with its wishes.”

Persons who are not a party to a particular case may submit briefs as amicus curiae (Latin for “friend of the court”) presenting information and analysis that may help the court resolve legal issues in that case. This is the fifth amicus curiae brief the Texas Public Policy Foundation has filed in a federal appeals court, including three briefs in the U.S. Supreme Court. 


The Aransas Project v. Shaw is on expedited appeal to the 5th Circuit Court of Appeals, and is set for oral argument in August 2013.

Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation and the author of the Foundation’s amicus curiae brief.

Josiah Neeley is a policy analyst for the Armstrong Center for Energy & the Environment at the Texas Public Policy Foundation.

The Texas Public Policy Foundation is a non-profit, free-market research institute based in Austin.