Whooping Cranes Battle Pits County Against State

Reprinted with permission from the April 22, 2015 edition of Texas Lawyer. © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.

Whooping Cranes Battle Pits County Against State

 Miriam Rozen, Texas Lawyer
Whooping Cranes Battle Pits County Against State
A whooping crane photographed at the International Crane Foundation located in Barbaboo, WI.
Ryan Hagerty/U.S. Fish and Wildlife Service

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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***** FOTWW’s mission is to help preserve and protect the Aransas/Wood Buffalo
population of wild whooping cranes and their habitat. *****
Friends of the Wild Whoopers is a nonprofit 501(c)3 organization.

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Water Ruling Cuts State’s Power in Droughts

Water Ruling Cuts State's Power in Droughts-Texas Drought
The Dow chemical plant along the Brazos River in Freeport, Texas. Photo by: Michael Stravato

Water Ruling Cuts State’s Power in Droughts
by Jim Malewitz

A state appeals court has sided with farmers, ranchers and other longstanding water rights holders in a Brazos River case with widespread implications for future water battles in drought-prone Texas.

Upholding a lower court’s ruling, the 13th Court of Appeals in Corpus Christi on Thursday ruled that Texas cannot give special treatment to cities or power generators over more “senior” water rights holders on parched rivers  – even if the state declares it necessary to protect the “public health, safety and welfare.”

To read the entire article on The Texas Tribune‘s website, click here.

 

***** FOTWW’s mission is to help preserve and protect the Aransas/Wood Buffalo
population of wild whooping cranes and their habitat. *****
Friends of the Wild Whoopers is a nonprofit 501(c)3 organization.

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U.S. Court of Appeals Decision on Whooping Crane Deaths

The U.S. Court of Appeals for the Fifth Circuit has made its decision concerning “The Aransas Project” court case involving the deaths of whooping cranes.  The Appeals court reversed the district court’s opinion. Friends of the Wild Whoopers is sincerely saddened about this judgment. For your convenience we have inserted a summary of the decision and a link to the entire court’s decision.

——————————————————————————————————————

Case: 13-40317 Document: 00512681291 Page: 1 Date Filed: 06/30/2014

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______

13-40317

__________

THE ARANSAS PROJECT,

Plaintiff–Appellee,

BRYAN SHAW, in His Official Capacityas Chairman of the Texas Commission on Environmental Quality;

BUDDY GARCIA, in His Official Capacityas Commissioner of the Texas Commission on Environmental Quality;

CARLOS RUBINSTEIN, in His Official Capacityas Commissioner of the Texas Commission on Environmental Quality;

MARK VICKERY, in His Official Capacityas Executive Director of the Texas Commission on Environmental Quality;

AL SEGOVIA, in His Official Capacity as South Texas Watermaster,

Defendants–Appellants,

GUADALUPE-BLANCO RIVER AUTHORITY;TEXAS CHEMICAL COUNCIL; SAN ANTONIO RIVER AUTHORITY,

Intervenors

Defendants–Appellants.

Appeals from the United States District Court for the Southern District of Texas

United States Court of Appeals Fifth Circuit

F I L E D

June 30, 2014

Lyle W. Cayce

Clerk

Case: 13-40317 Document: 00512681291 Page: 2 Date Filed: 06/30/2014

No. 13-40317

Before JONES, SMITH, and GARZA, Circuit Judges.

PER CURIAM:

After the deaths of some whooping cranes an endangered species The Aransas Project (“TAP”) sued directors of the Texas Commission on Environmental Quality (“TCEQ”) under the Endangered Species Act (“ESA” or the “Act”). TAP sought and was granted an injunction prohibiting TCEQ from issuing new permits to withdraw water from rivers that feed the estuary where the cranes make their winter home. The injunction also required TCEQ to seek an  incidental–take permit (“ITP”) from the U.S. Fish and Wildlife Service (“FWS”). A motions panel of this court stayed the injunction pending appeal. We conclude that the district court’s opinion misapplies proximate cause analysis and further, even if proximate cause had been proven, the injunction is an abuse of di scretion. The judgment is reversed.

To read the entire court document click on the following link.  whooping cranes decision

 ***** FOTWW’s mission is to protect the Aransas/Wood Buffalo population
of wild whooping cranes and their habitat
. *****

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Federal Appeals Court Reverses Whooping Crane Death Case

******* Friends of the Wild Whoopers (FOTWW) just received news that the Federal Appeals court has reversed a ruling that TCEQ is responsible for the deaths of 23 endangered whooping cranes in 2010. Statesman.com issues the following news release. *******

Ruling against Texas environmental agency on endangered whooping cranes reversed on appeal 

statesman.com    Posted: 2:12 p.m. Monday, June 30, 2014

By Asher Price

In an apparent win for state officials and river authorities, a three-judge panel of a federal appeals court has reversed a ruling that Texas’ environmental agency is responsible for the deaths of 23 endangered whooping cranes several years ago.

In 2013, a federal judge held the Texas Commission on Environmental Quality failed to manage the waters of the Guadalupe River to ensure the cranes’ survival. That ruling threatened to upend water permitting in the Guadalupe and other basins, as river authorities balanced the sale of water to cities, industrial facilities, and farmers with the water needs of fish and other wildlife.

But on Monday, three judges at the U.S. Fifth Circuit found that the lower court failed to adequately determine whether the TCEQ’s actions could forseeably have led to the crane deaths.

“Nowhere does the court explain why the remote connection between water licensing, decisions to draw river water by hundreds of users, whooping crane habitat, and crane deaths that occurred during a year of extraordinary drought compels (Endangered Species Act) liability,” the judges wrote.

They continued: “There is a long chain of causation here between the TCEQ’s issuance of permits to take water from the rivers and cranes’ mortality…Every link of this chain depends on modeling and estimation. Proximate cause, however, requires the causal factors and the result to be reasonably foreseeable.”

Asher Price

About Asher Price

Asher Price has covered energy and the environment for the American-Statesman since 2006. Twice the Society of Environmental Journalists has named him a finalist for its beat reporter of the year award.

Connect with Asher Price on:Twitter

Send Asher Price an email.

 ***** FOTWW’s mission is to protect the Aransas/Wood Buffalo population
of wild whooping cranes and their habitat
. *****

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friendsofthewildwhoopers.org

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