Courthouse Steps Decision Teleforum: Florida v. Georgia

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, April 12th, we discuss the Supreme Court's decision in Florida v. Georgia. My name is Evelyn Hildebrand and I'm an Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us Mr. Tony Francois. Mr. Francois is a Senior Attorney at Pacific Legal Foundation and he's a member of The Federalist Society's Executive Committee on Environmental Law and Property Rights.

 

      After our speaker gives his opening remarks, we will turn to you, the audience for questions. So be thinking of those as we go along. And have them in mind for when we get to that portion of the call. With that, thank you for being with us today. Mr. Francois, the floor is yours.

 

Tony Francois:  Well, hello all. And thank you Evelyn and to The Federalist Society for the opportunity to discuss this case. And I hope that there'll be some interesting questions on it. Because I think, although this is a fairly simple case, some kind of interesting implications that arise from it.

 

      So this is Florida v. Georgia on April 1st of this year, so 12 days ago, the Supreme Court published its decision in this water use dispute, in which Florida sued Georgia in what is called an original action in the Supreme Court.

 

      Article 3, Section 2, paragraph 2 of the United States Constitution gives the Supreme Court original jurisdiction over cases "in which a state shall be a party." And a significant number, if I had to guess, I'd hazard that it's a majority of the state versus state original actions in the Supreme Court involve these kinds of interstate water disputes

 

      The Supreme Court previously decided on of these cases earlier this term in Texas v. New Mexico. And The Federalist Society's Courthouse Steps podcase on that decision is currently available on The Federalist Society's website.

 

      Compared to Texas v. New Mexico, the facts and legal issues in Florida v. Georgia are pretty simple. The dispute is over Georgia's use of water from two rivers that arise in Georgia, the Chattahoochee and the Flint, which flow through Georgia into Lake Seminole, which sits in Georgia and on the boundary between Georgia and Florida. Lake Seminole then feeds the Apalachicola River, which flows through the Florida Panhandle into the Gulf of Mexico in the general vicinity of Panama City on the Florida Panhandle.

 

      The Georgia water uses at issue in the case include municipal supply for the City of Atlanta, and that's from the Chattahoochee, and farm irrigation from the Flint River in Southwestern Georgia. On the Florida end of the system, that state is concerned about an oyster fishery in Apalachicola Bay, which has badly declined in recent years.

 

      Florida blames this decline in excessive use of the basins river in Georgia, which Florida argues has reduced fresh-water outflows to the oyster beds, which in turn has allowed salinity to increase in those waters resulting in harm to that fishery.

 

      Florida filed a case against its neighbor to the north in 2013, arguing that Georgia's water use is unreasonable and asking the Supreme Court to equitably apportion the basin's waters between the states.  The Supreme Court agreed to hear the case under its original jurisdiction power and assigned it to a Special Master for fact finding and recommendations, which is the customary way these cases proceed.

 

      Eight years later, the case is resolved in Georgia's favor. No liability for upstream diversions from the rivers in Georgia, at least so far as harm to Florida's oyster fishery is concerned. And thus, no equitable apportionment of the basin between the states.

 

      The decision, published on April 1st, is in many ways as simple as those facts. It's unanimous. It runs all of 10 pages. It affirms, in its entirety, the fact-finding and recommendations of the special master who conducted the trial in the case.

 

      And states that Florida, first, was required to show, by clear and convincing evidence, that Georgia water use was at least a substantial cause of the decline in Florida's oyster fishery. And then two, that Florida failed to meet that burden, and therefore, was not entitled to apportionment as a remedy. Based on this, the Court adopted the Special Master's recommendation to dismiss the case.

 

      So pretty straight forward. One of the unusual things about these original action cases is that, generally, they turn on factual questions. Sometimes, some legal questions. But frequently, those legal questions are very particular to the two states at issue, or a prior court decree governing divisional waters between the states.

 

      So these are kind of the rate Supreme Court decisions that deal with disputed facts. And those that are familiar with Supreme Court practice will spot immediately, it's a pretty rare thing for the Supreme Court to be deciding whose experts have the better of a contested factual question.

 

      So that's one of the things that's different about the cases that arise in the Supreme Court's original jurisdiction. There are also a couple of interesting things that happen along the way when one looks a little more closely at how the Court resolved this case.

 

      So Atlanta is 350 miles from the Florida Gulf Coast. And naturally, a case arguing that the use of water for golf courses and the like in Atlanta is harming oyster beds that far away in another state, those claims are going to involve, obviously, complex expert opinion testimony. And conflicting expert opinion testimony.

 

      The opinion by Justice Barrett starts by acknowledging this. The Special Master to whom the Court referred the case held a five-week trial, dominated mostly by expert testimony on both sides. And Justice Barrett kind of previews or prefaces her discussion of the case with this very blunt statement. "Of course, the precise causes of the Bay's oyster collapse remain the subject of ongoing scientific debate. As Judges, we lack the expertise to settle that debate and do not proport to do so here. Our more limited task is to evaluation the parties arguments in light of the record evidence and Florida's heavy burden of proof."

 

      So short version, we're Judges, not scientists. Don't look to us to resolve complex scientific questions. The thing is, the decision's remaining pages are a close evaluation of what the various expert witnesses testified to and against before the Special Master on both sides of the argument, followed by some resolution, you might even call it a settling of the debate between those experts.

 

      So there's some tension between the caveat, we lack expertise to address scientific questions, and the very next act, which is the perfectly normal judicial function of adjudicating the facts of cases, which involve conflicting evidence, including conflicting opinion testimony, under applicable legal formula and burdens of proof.

 

      And even in doing that, the Court had a little trouble surveying the expert opinion evidence, from which the Special Master concluded, and the Court agreed, that it was clear that a variety of confluent factors in the decline of Florida's oyster beds, including things like long-term drought conditions, controversial water management operations carried out by the United States Army's Corps of Engineers. And both significant overharvesting by Florida oystermen and inadequate steps to reestablish depleted oyster bars.

 

      So among these causes, even Florida's expert evidence limited the contribution of Georgia diversions from the basin to a very insignificant impact on oyster production.  And from all of this, the Court pretty easily concluded, as a factual question, Florida was unable to demonstrate that any diversions, let alone excessive diversions in Georgia, had contributed enough to the problems in the oyster beds to entitle Florida to a remedy.

 

      So why the apparent punt on scientific expertise immediately before surveying the scientific evidence and resolving the case based on that scientific evidence? Well, it might simply be a reminder that court cases, which address scientific questions, do so in a specific way. And that way relies on existing rules of admissibility of evidence, the adversary system, and burdens of proof.

 

      And perforce, when you present a scientific question or a technical question in that way in a case in court, some of it you present, and other aspect of it, you don't present. And the way you present it is not the iterative method of what we all recognize as the scientific method. And so sometimes, probably quite wisely, judges find it important to remind their readership that different paradigms for analyzing a scientific question could easily yield different conclusions about that question. And that one court's resolution of a particular scientific question is not even really the last word in that particular question.

 

      Court's readership, especially the Supreme Court's readership, their audience, is still primarily lower court judges and the bar. But more and more people take an interest in the Supreme Court these days. And it's probably wise for the Court to be signaling to the broader reading public and to its political audiences that by saying, this side wins this case on this scientific issue, we're not purporting to answer for all time what the answer to that scientific question is.

 

      So you could think, for example, to some of the recent jury verdicts in federal court against pesticide manufacturers. Finding those manufacturers liable for causing cancer, that the product causes cancer. Its' important to distinguish between the outcome of a case like that, in which a particular jury finds that the answer to that question is yes. That is not dispositive for all time of whether that product actually does cause cancer. And it's a reality of our litigation system that, from time to time, different juries will answer that question in completely opposite ways.

 

      And when you think about some of the technical questions that federal courts increasingly face, climate policy is probably the big one. Do our cars and powerplants, are they changing the climate and is that a good, bad, or indifferent thing? It's probably wise to remind the bar and the public that deciding cases and controversies through the due process methods of the adversarial system, that the rules of evidence is not the same thing as the scientific method and should not be thought of in the same vain.

 

      But even in light of this observation, this qualification on what courts do, there's a remarkable thing sitting in plain view in the Florida v. Georgia decision. Among the various bits of expert opinion evidence in the case are three government reports.

 

      On Florida's side, there are two items, a report by a Florida state agency assigning blame for the oyster failure to Georgia's water use. And then a National Oceanic and Atmospheric Administration, NOAA, report from the federal government adopting Florida's view on that same question.

 

      So you have a state and federal agency publishing their technical opinions, basically, on liability. And these were actually very important elements of Florida's case. And yet, the Supreme Court brushed them aside without much difficulty as not satisfying Florida's burden of proof.

 

      On the other side of the case, the Court credited a report from the United States Fish and Wildlife Service stating that a condition of a particular species in the Florida end of the basin, a species of fish I want to say, that that particular species was steady to improving under the water conditions that Florida was complaining about. It's worth stepping back and thinking about these three reports for a moment in the context of this case and other types of cases.

 

      So picture, instead of this being an original action between two states, or just more generically, any civil action which proceeds by the Rules of Civil Procedure, discovery and trial of the facts. Imagine, instead, if this dispute had emerged in a different context. Say, a federal agency action by NOAA Fisheries or the Corps of Engineers directing reduced diversions in Georgia under whatever statutory and regulatory power that agency holds.

 

      If the exact same question arose in that context, in that procedural posture, it seems almost certain that the outcome would have been the exact opposite. That is to say, if instead of Florida suing Georgia in, essentially, a civil trial, if Georgia were challenging a federal agency action reducing its water use that was taken in order to protect downstream natural resources within that agency's charge, the NOAA opinion on that subject would almost certainly be dispositive in that litigation.

 

      Federal courts would have deferred to the federal agency's factfinding and expertise and allowed the agency to do what it thought best in almost all -- almost every time that case was litigated. Nor would the possible contrary opinion of a different federal agency be given much weight by the courts. And most tellingly, no amount of record evidence proffered by Georgia would ever be enough to overcome the very low substantial evidence standard that the federal agency would have to meet for its decision to be affirmed. Essentially to force the federal courts to defer to its decision.

 

      So while on the surface, this is a pretty simple case, it does serve as a window into two very different ways the federal courts look at complex technical questions, and how important it is for the outcome, what type of case the technical question arises in. If it's what you might call a normal lawsuit governed by the Rules of Civil Procedure leading to a trial of facts, government agency opinion may carry no more weight than any other expert opinion. It might prevail or it might not. It's not entitled to special weight in that regard.

 

      But if the action is a challenge under the Administrative Procedure Act to a final agency action, based on the exact same agency opinion, almost nothing carries more weight than that agency opinion. And that, at least to this observer, I'll wrap up by saying, is a strange distinction on which to base a court's resolution of a factual dispute.

 

      With that, I'm happy to take questions in the available time.

 

Evelyn Hildebrand:   Wonderful, thank you. And as we are waiting for a caller -- Oh I spoke too soon. I'll hand the floor over to our first caller.

 

Caller 1:  Hello. Thank you very much for this. Can you talk a little bit about what exactly should we think about when you say the opinion of the agency as it pertains to the technical pieces? My understanding is the agency's required to produce reports and so forth. And that will get informed by, say, advisory boards. How much scrutiny did the internal mechanisms of the different agencies came into play here? And how should we be thinking about that? Thank you.

 

Tony Francois:  Sure. Thanks. That's a great question. Thank you for that.

 

      So in the ordinary course of just about any agency's work, on factual questions that they have a responsibility to propose answers to. Like for example, one way to think about this is, one of the agencies involved was the U.S. Fish and Wildlife Service. So that agency administers the Endangered Species Act. And as part of that responsibility, the agency routinely publishes technical reports on the conservation status of hundreds of different species of plants and animals. And proposes regulatory actions that should be taken under the Endangered Species Act to protect the species.

 

      So if you are, whatever sort of perspective you come from, if you're coming from the environmental side, or if you're coming from the landowners side. If you are dissatisfied with what that report says and what it recommends, you can sue the agency. When that suit comes before the courts, the way the court will look at it is, if the agency's report, if they're factfinding, essentially, if their opinion about what's actually going on on the ground meets the substantial evidence test.

 

      In other words, there's some evidence in the record for the conclusions that they draw. And if those conclusions and the type of information they're based on is within the agency's field of expertise, which conservation and wildlife is certainly within the Fish and Wildlife Services field of expertise, then the courts are pretty close to bound to defer to the agency's view of the factual question in a suit of that sort.

 

      And that's to such a degree that there really aren’t -- I mean, certainly agencies use varying levels of, I guess -- some of their investigations into what's going on on the ground and the way they draw conclusions about it, some agency processes are more robust than others and generate a denser record of what they looked at and how they analyzed that and what they think of that.

 

      But there isn't really much of a substantive set of criteria that they have to use in order to make a decision. And in fact, the courts will routinely hold that agencies can rely on what is simply available to them. They don't have any obligation, at least under the Administrative Procedure Act, to identify gaps in the record and go fill them. If there's a question that there's just simply not a lot of information available on, the agency is allowed to do its best to draw sound conclusions from whatever information is available.

 

      And I think one of the things that shows a distinction, or one of the things that that is distinct from is that in "normal" civil litigation, the rules of admissibility of expert opinion testimony require a lot more rigor than that in formulating opinions that are admissible in court to advance your case. And so it's certainly common for government reports and government employees, officials, to testify as experts in civil cases.

 

      But typically, the work they've done in order to prepare for that, to produce an expert report that would be disclosed under the Rules of Civil Procedure require a lot more rigor to be admissible in the first place than the amount of rigor that is needed for just an average government report to be deferred to in a case under the Administrative Procedure Act challenging a final agency action.

 

      I hope that's kind of responsive to the question. Let me know if you were looking for something different please.

 

Caller 1:  Yeah, no, no. That was perfect.  Just kind of maybe a natural follow-up here. So let's give you a hypo here. The agency representative goes to let's say a Congressional deposition and submits something for the record, versus a report, maybe both. How do we see those two if they conflict?

 

Tony Francois:   Well I think the main point that I think this case illustrates is that, how you view them, what the legal significance of them depends almost entirely on whether the court is presiding over the standard type of civil case brought under the Rules of Civil Procedure with discovery and the Daubert rules of admissibility for expert opinion, or if the case is a challenge to an federal agency action under the Administrative Procedure Act, which is limited to the record before the agency.

 

      I mean, there's a lot of debate about this right now in legal circles, of the amount of deference that federal courts afford agencies as agencies on legal and factual questions. But I think it's indisputable that, in that context, the agency has a significant leg up. A significant sort of prior weight on the scales by the fact that it's the agency and has a much lower requirement to essentially show its homework. And it stands in a position where the court really can't adopt a competing view of the factual question unless there's actually no evidence in the agency record  for a key part of its reasoning.

 

      And so whether it's a published report by an agency or it's testimony to the Congress by the agency or one of its officials, the weight that that carries winds up depending on what sort of lawsuit it winds up being part of the record for. Because if it's just a civil lawsuit and the Daubert expert opinion rules apply, in order to admit the same statement that the agency official made to congress, it would be necessary for the official to submit to a deposition in which the official would have to answer questions like, identify all the facts on which you relied in coming to this conclusion. And are you aware of anything weighing against that conclusion? Is there any information that you purposely excluded from consideration?

 

      Those are all pretty standard expert depo and cross-exam question in civil trials, and yet none of that is even germane to APA challenges to agency action. Even though the key thing in both might be the exact same government report.

 

Caller 1:  Thank you.

 

Tony Francois:   Thank you.

 

Evelyn Hildebrand:   Great. To discuss, I wanted to ask if it was a surprise to you that the decision came down unanimously?

 

Tony Francois:   No, that's a good question. No, not at all. In fact, I've done two of these telefora this year on these interstate water disputes. And it's got me curious about the recent history of these kinds of decisions.

 

      The one earlier this year was, I think, 7:1 with Justice Alito concurring in the result but calling on the Court to provide some clear guidance on certain aspects of this type of case. And that was an opinion by Justice Kavanaugh. And one of the first ones that he authored.

 

      This one might be the first one that Justice Barrett is the author of. And it's also unanimous. Several years ago, I think one of Justice Sotomayor's very early opinions was a unanimous decision in a water dispute between Oklahoma and Texas. And I think that one pretty valuable way to look at these cases is that, in all of them, the Supreme Court accepts these cases as part of its original jurisdiction over actions between states. But they're not really trial court judges, at all. And so they're pretty sparing with the amount of bandwidth they're going to put into things that are really just factual disputes.

 

      These cases are universally referred to a Special Master, who actually serves for all practical purposes, the judge in the case. The Special Master conducted the trial in this case. It took five weeks. That's actually a fairly short trial for a water dispute of this nature.

 

      And then the Special Master's report and recommendations are subject, not quite -- I mean it's not framed as de novo review in the Supreme Court. But the standards that the Court has announced for itself, say that it's supposed to review the entire record and make sure that the Special Master got it correct. So kind of de novo review. Kind of the relationship, if you will, between a sitting U.S. district court judge and a report from a magistrate judge.

 

      And for a lot of the same reasons, the Supreme Court is just very, I think, reluctant to ever second guess the Special Master. Because, you know, for one thing, the point of the Special Master in the first place is to resolve the factual disputes. And so I think the dynamic in this type of case is simply this. That if you lose in front of the Special Master, you're going to have to have something really remarkable to get the Supreme Court to second guess the Special Master and overturn the recommendations.

 

      And my bottom-line takeaway on the Texas v. New Mexico case earlier this year was that Texas's objections to the Special Master's report on that case amounted to not quite handwaving, but not much better than handwaving. And that's the way the Supreme Court looked at it. This is not worth undermining the Special Master in order to provide that state the relief they want.

 

      This one is even more clear cut in that sense. That at the Supreme Court, one way to look at it is, you had a five-week essentially a bench trial in front of a Special Master. You lost on the facts. There's almost no way we're just going to decide something different on the facts. And in that sense, it's short, very short. It's unanimous.

 

      And you don't want to be cynical about it and say it's a signal to states to not bother the Supreme Court with. But I do think it's a signal to states that, if you're not satisfied with what you got from the Special Master, it's going to have to be something really remarkable to get our attention and get us to seriously consider rejecting the Special Master's recommendation.

 

Evelyn Hildebrand:   Great. And just an additional question for you. Do you know of any other cases that are in the pipeline for the Court that might be affected by this kind of effect? Like maybe the states will rethink whether they have a good enough reason to try and get into the Supreme Court's docket?

 

Tony Francois:   Well, that's a good question. I'm not aware of any. But there are always -- I mean, there are a number of these interstate water disputes that are percolating along. I'm a little bit embarrassed to say, I'm not even sure where you would go to look up that docket. There might be a page on the Supreme Court's website that discloses its original jurisdiction docket.

 

      The other thing you prompt me to mention this. I meant to say it earlier. There are a number of cases that are filed by states against each other invoking the Court's original jurisdiction that the Court simply dismisses without hearing it. It elects not to hear the case.

 

      As a result of the Eleventh Amendment and some other recent decision's of the Supreme Court, where states need to act against each other to protect their own interests, this was essentially discretionary jurisdiction in the Supreme Court over actions between states, is about the only way to get any judicial review of the dispute.

 

      Obviously, quite recently, there was the effort led by Texas in the Supreme Court to get the Supreme Court to accept a case challenging the certification of electors by other states. That’s essentially attempting to invoke the exact same authority under which the Court was addressing this water dispute.

 

      And there are a lot of cases, that obviously dramatic and, in most people's view, kind of bizarre. But there are a lot of cases like that. I'm trying to remember which state, I think it was Kansas a couple of years ago tried to sue Colorado in the Supreme Court. It might have been Nebraska. It might have been Wyoming. Over that state's legalization of marijuana claiming that there were adverse impacts on law enforcement and other factors. In the suing state that entitled them to a remedy against the defendant state for its legalization of marijuana.

 

      So there are these kinds of things that come up fairly frequently. They're not all, in fact few of them are, sort of political culture war types of things. Arizona tried to sue California in the Supreme Court a few years ago over actions that California was taking to basically collect California taxes that it claimed were due from bank branches in Arizona where the taxpayers held accounts. And the Supreme Court declined to hear that.

 

      So I think that there's a very long tradition of the Supreme Court taking up these interstate water disputes. But beyond that, they're very, very reluctant to weigh into cases between states. Even with the water disputes, their standard way of approaching them is to, once they accept them, to refer them out to a Special Master who will actually be, for all practical purposes, the judge in the case.

 

Evelyn Hildebrand:   Well to be honest, I didn't realize that there was any aspect of discretion in the original jurisdiction. So that's fascinating. Thank you.

 

Tony Francois:   Well I would say, there's no evidence of discretion in the constitutional text.

 

Evelyn Hildebrand:    Right.

 

Tony Francois:   And so I think there is kind of an interesting question, particularly as a result of the Eleventh Amendment, that bars suing states in federal court. That if there's no way, if you have a claim against another state, if there's no way to get it into court, unless the Supreme Court wants it. That's an interesting question.

 

Evelyn Hildebrand:   That's interesting. If you have any additional remarks or closing comments that you'd like to make.

 

Tony Francois:  Thanks. I think kind of the most salient thing about this is that it's -- like I said, it's a window into how important it is for how a case arrives at an appellate court, or ultimately the Supreme Court, how the evidence gets dealt with. What the evidence even is. And that there's a very casual way that the Court deals with the evidence in this case that I think belies that significance of that.

 

      And I think a lot of people that practice a lot of administrative law would probably breeze their way through this fairly short decision and then suddenly stop short that the Court simply dismissing is not all that persuasive, an official opinion from the National Oceanic and Atmospheric Administration as not all that persuasive. And despite this being a fairly plain case, a pretty startling fact about it.

 

Evelyn Hildebrand:   That was really interesting. You have the floor.

 

Victoria Sutton:  This is Victoria Sutton. I'm a professor at Texas Tech University. And I just took a quick look at the SCOTUS blog on this case. And I was wondering why you think the tribes didn't join in this? Because I remember there are some oyster harvesting tribes, like the Seminole and Miccosukee that are federally recognized tribes in Florida. And they would certainly have a claim to their shell fishing rights on the coast that have been diminished as a result of the water flow.

 

Tony Francois:  Well now that's a great questions. And I have to concede to not being familiar enough with the history of the case to know what the answer to that is.

 

      It may simply be a feature of the nature of original action jurisdiction, that only states may be parties. And my hunch is that's actually the answer. There are, and the docket might disclose that. But there are a lot of these cases that are filed before the Court acts on them where there are amici that asks the Court to take it. But you were about to say something. I cut you off.

 

Victoria Sutton:  Yeah, Cherokee v. Georgia established that tribes would be treated like states for purposes of jurisdiction for being regarded as state parties before the Supreme Court. So I don't think that would be the reason. But I would have at least thought they might have had a amicus or something.

 

Tony Francois:   No. That's a good question. I don't know the answer to that. And that's an interesting thing to look into. These teleforum calls are pretty routinely posted on The Federalist Society's website a couple of days down the road, and I should look into whether I can find anything out about that, or if you are able to locate anything on that, an update on the FedSoc blog on that point, might be interesting. Because that is a good question.

 

      And there are a lot of these interstate water disputes, clearly, that involve significant tribal claims. One would think that, in almost all of these cases, there'd be a significant amount of tribal interest.

 

Victoria Sutton:  Thank you. Maybe it's not over.

 

Tony Francois:  Thank you. 

 

      Well I think the -- so that raises kind of an interesting sort of practical question, which is so what's next for Florida? And I think the answer is, if Florida's got the political pull to enlist one or more federal agencies into taking an action that would accomplish the flow augmentation that it's looking for in this case, it's hard to see how Georgia could fend that off. Because the basis on which that would be decided in Court, I'd say, would be quite different.

 

      So in a certain sense, these things are never over. But in another sense, there are very different institutional interests that the federal agencies have that occasionally may align with a particular state's interests but frequently aren't going to wholly do that. And it's not clear, either, that there wouldn't be a -- you know, there might be like a Clean Water Act claim somewhere in there.

 

      There's an interesting case that's somewhat similar in it's underlying facts that was decided by the Fifth Circuit a number of years ago, about five years ago, under the Endangered Species Act. It's called Aransas Project v. Shaw. And that dealt with diversions about 200 miles upstream of the Gulf of Mexico in Texas that were related in a rather attenuated way that that circuit ultimately determined to declining water conditions in a whooping crane preserve on the Gulf coast. And the issue in that case was whether or not, under the ESA, at least, an adequate causal connection existed between these upstream diversions and the harm caused to the whooping cranes, individual cranes, and their habitat in this preserve.

 

      And the trial court in that case found causal connection under the ESA. And so basically, it was prepared to hold the State of Texas, which regulated these diversions, liable for take under the ESA. And the Fifth Circuit reversed that and said that the proper legal standard for assessing whether an action causes take is proximate cause. So you go all the way back to Mrs. Palsgraf at the train station and whether or not the Rube Goldberg sequence of events that leads to her injury is attributable to the railway company.

 

      And the Fifth Circuit held that the diversions in that case had too attenuated a connection to conditions in the reserve. So I mean there are different legal theories and claims that committed parties can bring to bear to keep forcing a resource issue like this. I think it'd be interesting to see, if there is a next step in this, who takes it and how it proceeds.

 

Victoria Sutton:  Thank you.

 

Tony Francois:   Thank you. Very interesting question.

 

Evelyn Hildebrand:   Thank you. And at this point, I think I'll hand the floor back over to you for closing comments and then we will close out after that.

 

Tony Francois:   Well I just want to thank The Federalist Society very much for the opportunity to speak about this case. And wish everybody a good day.

 

Evelyn Hildebrand:   Wonderful. And on behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. And I want to thank our audience for calling in and participating.

 

      We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.