Appeals court: TCEQ not responsible for deaths of whooping cranes

By Marilyn Tennissen | Jan 7, 2015

A few days ago, a hunting guide in south Texas found a dead whooping crane near the Aransas National Wildlife Refuge. The birds are endangered, so the death of the bird is being investigated by Texas Parks & Wildlife game wardens, according to a Jan. 6 press release from the agency.

But dead whooping cranes in the Aransas refuge are not just of importance to protective agencies, but were also a topic a federal appeals court had to consider a few weeks ago.

On Dec. 15, a panel on the U.S. Court of Appeals for the Fifth Circuit found that the Texas Commission on Environmental Quality was not responsible for the deaths of more than 20 whooping cranes when it withdrew water from the birds' habitat during a drought a few years ago. 

In the winter of 2008-2009, about 20 cranes died, and a conservation group, The Aransas Project (TAP), claimed the deaths occurred because the state withdrew water from the Guadalupe Estuary for public use during a drought.

TAP sued the Texas Commission on Environmental Quality, the San Antonio River Authority and the Guadalupe-Blanco River Authority, and was granted an injunction to stop TCEQ from issuing new permits to withdraw water from rivers that feed the estuary where the cranes make their winter home.

But the Fifth Circuit says the injunction was unlawful and reversed the district court’s decision on Dec. 15.

“We conclude that the district court’s opinion misapplies proximate cause analysis and further, even if proximate cause has been proven, the injunction is an abuse of discretion,” the per curiam order states.“The judgment is reversed.”

The justices explain their opinion by agreeing that“the whooping crane is a majestic bird that stands five feet tall and has a wingspan of more than eight feet."

“It once came close to extinction and, despite international recovery efforts, is still endangered,” court papers say.

According to the documents, the only wild flock existing in the world inhabits the Aransas National Wildlife Refuge in Texas during the winter. In summer, the 300 birds in the wild flock then travel to Wood Buffalo National Park in Canada.

The Aransas refuge is adjacent to San Antonio Bay, also known as the Guadalupe Estuary which provides a critical habitat for the flock. It receives fresh water from the San Antonio and Guadalupe Rivers. The state of Texas owns the state’s surface water, and the capture and use of the water is regulated by TCEQ.

TAP sued TCEQ, claiming officials had violated the Endangered Species Act.

The non-profit group alleged TCEQ violated the ESA by "harming and harassing cranes in the flock" and causing the deaths of 23 cranes.

TAP asserted that TCEQ’s water permitting practice has led to private parties withdrawing water from the San Antonio and Guadalupe Rivers, “in turn leading to a significant reduction in freshwater inflow into the San Antonio Bay ecosystem,” court papers say.

The reduced inflow of fresh water, coupled with a drought, led to increased salinity in the bay, which caused a reduction of blue crabs and wolfberries, two of the cranes’ staple foods, the plaintiffs argued.

The district court held an eight-day bench trial that included nearly 30 witnesses. The court adopted TAP’s proposed findings of fact verbatim and issued its opinion on March 11, 2013.

The court declared that the state defendants had violated the ESA through their water-management practices and were continuing to do so.

But the 5th Circuit says evidence does not establish foreseeability that decreased freshwater inflows in 2008-2009 would result in abnormal crane deaths.

“Because the deaths of the whooping cranes are too remote from TCEQ’s permitting withdrawal of water from the San Antonio and Guadalupe Rivers, the state defendants cannot be held liable for a take or for causing a take under the ESA. Even if the state defendants should be held liable, the injunction was an abuse of discretion. The district court’s judgment is reversed.”

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