The case is back in court concerning freshwater needs by whooping cranes on Aransas National Wildlife Refuge. The Aransas Project (TAP) responded to the recent Fifth Circuit Court of Appeal’s three judge panel decision concerning freshwater needs of whooping cranes on July 28, 2014. TAP is asking the Fifth Circuit for a review of their decision with all of the Fifth Circuit judges participating (view the full petition).
The federally protected whooping crane faces extinction. There were only 304 of the birds when they were counted on Aransas National Wildlife Refuge during the past winter. This last wild flock of whoopers on earth migrates 5,000 miles between Texas and Canada every year.
The crane’s only winter refuge is on the Texas coast where they have frequently suffered high mortality due to low freshwater inflows. Freshwater flows from the Guadalupe and San Antonio Rivers into the San Antonio Bay estuary within the Aransas Refuge complex.
Legal sources advise that “The Appeals panel seemingly exceeded its authority by disregarding the fact finding done by the trial judge, and substituted its own fact finding, rather than returning the case to the district court with direction to apply the facts to what the panel believes is the correct legal standard. This seeming judicial activism in the recent Appeals decision may be enough for the rest of the Fifth Circuit Court judges to reconsider the case with all judges participating.”
TAP’s original legal action was initiated on March 10, 2010. TAP filed a lawsuit against several officials of the Texas Commission on Environmental Quality (TCEQ) for illegal harm and harassment of whooping cranes at, and adjacent to, Aransas National Wildlife Refuge, in violation of the Endangered Species Act (ESA). The case went to trial before the United States District Court for the Southern District of Texas in December 2011.
TAP contended that the “TCEQ allowed too much water to be removed from the Guadalupe andSan Antonio Rivers, such that the bay salinity was changed beyond what drought would cause, resulting in reduced fresh drinking water and food supply that ultimately caused the death of at least 23 whooping cranes during the winter of 2008 – 2009.” TAP used court evidence to described how freshwater inflows are tied to the fate of whooping cranes and all who depend on the bays for their livelihoods.
Janis Graham Jack, Senior United States District Judge heard the case and ruled on March 11, 2013 that the TCEQ, have violated section 9 of the ESA and were not using its powers available to protect the endangered whooping cranes. TCEQ officials were enjoined from approving or granting new water permits affecting the Guadalupe or San Antonio Rivers until the State of Texas provides reasonable assurances to the Court that such permits will not take whooping cranes in violation of the ESA.
The Fifth Circuit Court of Appeals, on June 30, 2014 in a narrowly-tailored decision (opinion), held that the federal district judge misapplied certain legal theories when it found that the TCEQ was liable for the deaths of 23 endangered and federally-protected whooping cranes in 2008-2009. The Fifth Circuit concluded that, “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.”
Friends of the Wild Whoopers (FOTWW) applauds TAPS decision to responded to the recent Fifth Circuit Court of Appeal’s three judge panel decision by asking that there be review of their decision with all of the Fifth Circuit judges participating. The courts and, or Texas public officials need to make an intelligent decision concerning adequate fresh waters flowing into the bays and estuaries associated with the Aransas National Wildlife Refuge. The fresh water is necessary for the continued survival of endangered whooping cranes and hundreds of other fish and wildlife species using the area.
Chester McConnell, Friends of the Wild Whoopers
***** FOTWW’s mission is to protect the Aransas/Wood Buffalo population
of wild whooping cranes and their habitat. *****