Strong Dissent Filed Against 5th Circuit’s Denial of Motion in Case Involving Whooping Cranes

The Aransas Project Summary of the 5th Circuit’s Action Denial of Motion for Rehearing With Dissent

The Aransas Project LogoSummary:  The Motion for Rehearing filed by The Aransas Project (TAP) has been denied by the 5th Circuit Court of Appeals, but a strong dissent has been filed that highlights points that could strongly support a petition for review by the Supreme Court

After the ruling against TAP by the 5th Circuit Court of Appeals (Panel Judges Jones, Smith and Garza) in June 30, 2014, TAP filed a Motion for Rehearing on July 28, 2014.  In an order filed December 15, 2014, that Motion for Rehearing was denied.  However, Judges Prado, Dennis, Costa and Graves voted for the Motion for Rehearing and Judge Prado wrote a strong dissent that took issue with the actions of the initial panel judges.

The dissent agreed with major points in TAP’s Motion for Rehearing, namely that the 5th Circuit judges did not correctly apply the established standard to the review of a district court decision and that they substituted their own fact findings for that of the trial judge.   Judge Jack wrote an extensive opinion and made significant findings of fact.  But, “the trial judge’s major role is the determination of fact,” wrote Judge Prado. Judge Jack also made substantial credibility findings where she found that GBRA’s witnesses lacked credibility and TAP’s witnesses had very high credibility. Because of Judge Jack’s credibility findings, Judge Prado wrote that the original panel’s “reweighing of facts in this case is particularly egregious.”

Judge Prado also focused on important policy implications of the panel’s decision as they implicate federal court procedures. He wrote: “If uncorrected by this Court en banc or the Supreme Court, this decision, and others like it, sends a clear message to litigants: if you don’t like the factual findings of a district court, the doors of our Court are wide open to endless retrials on appeal. This is the wrong message to send, and it evinces an alarming lack of trust in the work of our colleagues in the district courts.”

Importantly, as the dissent points out, the 5th Circuit has been overturned by the U.S. Supreme Court in the past for making this error.  The dissent observed that the panel judges had substituted their fact findings for Judge Jack’s fact findings and that was impermissible under past Supreme Court rulings.  If there were an error in the legal standard, then the dissent states that the case should have been remanded to Judge Jack for reconsideration in light of the appropriate legal standard.

Although we were hopeful that the Motion for Rehearing would be granted, we are gratified for the dissent, and particularly for the strength of the dissent.  This dissent identifies a key issue to be raised upon appeal to the U.S. Supreme Court, which TAP intends to pursue.  As with all appeals to the U.S. Supreme Court, a petition for review must be filed and granted prior to an actual appeal being heard by the Supreme Court.  We intend to file such documents and are hopeful that this case will be reviewed by the United States’ highest court.

This issue is worthy of being heard because the stakes are extremely high.  The only wild population of Whooping Cranes in the world winters in Texas in the San Antonio-Aransas estuarine system.  These cranes feed primarily upon blue crabs which are sensitive to the salinity of the bay system which in turn is affected by the permits issued by the State of Texas to allow water to be withdrawn from the Guadalupe and San Antonio River systems.  Judge Jack determined that during the winter of 2008-2009, 23 whooping cranes were killed by actions of officials of the Texas Commission on Environmental Quality who allowed too much water to be taken from the rivers, thereby affecting salinity and crab populations and ultimately “taking” 23 cranes in violation of the federal Endangered Species Act.  Evidence submitted by TAP clearly showed that this pattern of crane deaths had occurred in several past years when inflows were low.  If steps are not taken to secure water for these cranes in the long term, the probability of another die-off is substantial.

And notably, Judge Prado writing for the dissent stated: “The causal connection between TCEQ’s failure to maintain freshwater inflows and a “take” of endangered whooping cranes is straightforward.” The dissent agreed with TAP and the district court on the TCEQ’s role in causing harm to the Cranes.

It is worth noting that whooping cranes are one of the species that gave rise to the Endangered Species Act.  They were down to as few as 16 birds in the 1940s and now number around 300, a population size that all experts agree is still very vulnerable.  These birds require protection and part of that protection is insuring sufficient freshwater inflows to produce the crabs that are eaten by the cranes.  That was why TAP filed the litigation and why we are appealing to the U.S. Supreme Court.

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