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Environment — June 1, 2015 at 9:45 PM From Fort Smith

by Dali Carmichael Reporter, Northern Journal

Just over a week after the Salt River First Nation (SRFN) announced it would be filing a court injunction over Wood Buffalo National Park’s (WBNP) new whooping crane tours, Parks Canada has cancelled the program’s earliest tour dates.

Photo: courtesy of Parks Canada Tourists hoping to catch this kind of aerial view of whooping cranes will have to wait until at least August following the cancellation of the new program’s earliest excursions. That is, unless the program is quashed by a legal injunction, to be filed by Salt River First Nation. — Photo: courtesy of Parks Canada
Tourists hoping to catch this kind of aerial view of whooping cranes will have to wait until at least August following the cancellation of the new program’s earliest excursions. That is, unless the program is quashed by a legal injunction, to be filed by Salt River First Nation.

The Whooping Crane Iconic Experience, set to begin last week, has been suspended for now, though not because of the injunction, according to a release sent out by Parks.

“Parks Canada is committed to offering visitor experiences that connect Canadians to their treasured places in ways that leave our natural heritage unimpaired for future generations,” reads a statement from WBNP. “We are not doing our May-June delivery as no cranes have nested in the areas near our blinds.”

SRFN announced it would be filing the injunction two weeks ago, stating that Parks had not fulfilled its legally-required duty to consult with Aboriginal rights holders in the park.

But officials from WBNP say those rights would not be infringed upon by the planned whooping crane tours.

“We value our relationship with local Aboriginal groups and are committed to working with them, but a legal duty to consult is only triggered when an activity might impact an established Aboriginal or treaty right such as hunting, trapping or fishing, none of which are impacted by this visitor experience,” Parks Canada said. “However, we recognize a desire for more information on the whooping crane experience and are committed to engaging them in discussions.”

Fort Smith Métis Council president Ken Hudson said he’s unsatisfied with this response.

“The fact that the park is engaging with us for co-management tells me that they should be consulting on any issue that has to do with the park. They not only have to consult with the local people, but they should be consulting with the 11 groups around the park,” Hudson said, referring to the various First Nations that hold treaty rights within WBNP.

Concern for the birds

Since SRFN announced it would be filing the injunction, some – including Hudson – have expressed concern over the possible impacts of the tours on the well-being of the birds. The proposed program includes several options to view the natural nesting area of the whooping cranes, including fixed-wing flights at 1,000 ft, helicopter flights at 1,200 ft and hikes into a blind several hundred metres away.

Some worry the flights could scare the birds away, causing them to abandon their nests and endangering the hatchlings.

In its release, Parks defended the tours, stating research shows the birds are not troubled by such human activity.

“As a world leader in conservation, Parks Canada conducted considerable scientific research and collected extensive data on the whooping cranes before making a determination that the proposed tours would have no adverse impacts on the birds or the eggs,” Parks said.

A view from the south

During the colder months, the whooping cranes of WBNP head south to the Aransas Wildlife Refuge, located on the Gulf Coast of Texas. It’s there that retired biologist Chester McConnell follows their every move as the president of conservation group Friends of the Wild Whoopers.

McConnell said he became aware of the WBNP whooping crane tour experience as early as a year ago, when it was mentioned to him casually by a Parks employee.

“It was just nonchalant; it wasn’t a confirmed proposal or anything,” he said. “I said, well, if it’s done right, anything to get people interested in whooping cranes so long as it doesn’t have any adverse effects on them, we support it.”

McConnell was told the program was officially a go after Parks Canada sent out a press release on the program on Jan. 29 of this year.

“When the Salt River First Nation came out with their opposition, I could see their point of view,” McConnell said. “They got a right to the land and they should be contacted on anything they have a right to be contacted about.”

While he understands the concerns about the touring program, he noted that previous scientific studies have not had lasting impacts on the cranes.

“They’ve flown out there and gotten eggs before and used them in research projects,” he said. “They’ve banded the whooping cranes by landing out there and just walking in. So far as I know, none of that has ever had any long-lasting effect.”

He also noted that fixed-wing aircraft flying at an altitude of about 200 ft are regularly used to do aerial counts of the birds in Aransas.

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Whooping Cranes Battle Pits County Against State

Miriam Rozen, Texas Lawyer

The nation’s highest court is scheduled to decide if it will hear what is known as the whooping crane case. At stake in the litigation: the habitat of the endangered 5-foot-tall, spindly-legged birds who make their winter home in Texas.

As the parties wait to see if the U.S. Supreme Court will hear the case, both sides of the issue have gotten support—and the litigation has pitted the state of Texas against the Harris County Attorney’s Office, a rare occurrence.

Initially, in the long-running dispute, a district court ruled in favor of a nonprofit group of environmentalist and business owners and against the state of Texas. Known as The Aransas Project, the nonprofit had argued that actions by the Texas Commission on Environmental Quality, or TCEQ, led to the deaths of 23 of the whooping cranes. The federal government has designated the birds as an endangered species. The district court issued an injunction that barred the TCEQ from issuing new permits to allow withdrawal of water from rivers that feed an estuary in the Gulf Coast, where the flock of whooping cranes make their winter home.

On July 1, 2014, however, the U.S. Court of Appeals for the Fifth Circuit overturned the district court. “We conclude that the district court’s opinion misapplies proximate cause analysis and even further, even if proximate cause had been proven, the injunction is an abuse of discretion,” the Fifth Circuit three-judge panel wrote in its opinion.

So The Aransas Project filed a cert petition in the U.S. Supreme Court, asking the justices to uphold the district court and overturn the Fifth Circuit. That request is pending.

Earlier this month, the office of Harris County Attorney Vince Ryan filed a friend of the court brief in support of The Aransas Project’s petition.

The Harris County friend of the court brief argues that the Fifth Circuit embarked on a fact-finding mission in conflict with federal rules of procedure and undermined the decision-making authority of district court judges in a way that could affect future lawsuits initiated or defended by his office.

Terence O’Rourke, special assistant to the Harris County attorney, characterized his office’s opposition to the state in litigation as “highly unusual.”

O’Rourke wrote in an emailed response: “Harris County and the state of Texas file many documents in many proceedings and are almost always together.” But the county is the principal law enforcement agency on the Houston Ship Channel and therefore bears responsibility to protect the bayous, rivers and bays. Those obligations and the procedural questions of the Fifth Circuit’s ruling prompted Harris County to act, O’Rourke said.

“We filed this amicus brief because of the importance of the case as a breach of the relationship of the appellate court to the trial court and the profound threat to an already threatened habitat and an endangered species,” O’Rourke said.

James “Jim” Blackburn, who represents The Aransas Project, welcomed the Harris County attorney’s brief.

“Filing a cert petition is very much an uphill fight. So anytime there is an expression of support from other parties, it helps the outcome,” Blackburn said. He noted that the county’s arguments, because they cannot be categorized as simply those of another environmental advocacy group, will likely make an even stronger impression on the high court.

Meanwhile, the Texas Office of the Attorney General, which represents the TCEQ, has gotten help too, making its arguments that the Fifth Circuit’s opinion should stand.

Specifically, the AG’s office is receiving help from the Guadalupe-Blanco River Authority, according to Aaron Streett, a partner in Houston’s Baker Botts. Streett represents the Guadulupe-Blanco River Authority. The authority is a water reclamation and conservation district established by the Texas legislature; it is also a defendant intervenor in the litigation.

“We are coordinating to file a single response,” Streett said. That response is due on May 18.

When before the Fifth Circuit, the whooping crane case provoked tremendous interest; 37 friend of the court briefs were filed, including ones by other environmental groups, cities and other states’ farm agencies.

But so far—since the Supreme Court has not yet agreed to hear the case—only two friend of the court briefs have been filed, both supporting The Aransas Project’s cert petition. Those include: the Harris County Attorney’s Office and one by another environmental nonprofit, Nature Canada.

Friends of the Wild Whoopers, (FOTWW) thanks Miriam Rozen for giving us permission to reprint her article.

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