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Whooping Cranes Battle Pits County Against State

April 25, 2015 by Admin

Whooping Cranes Battle Pits County Against State

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.

friendsofthewildwhoopers.org

***** 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.

Harris County Attorney Vince Ryan comes to aid of endangered whooping cranes

April 24, 2015 by Admin

County Attorney Vince Ryan comes to aid of endangered species in Friend of Court brief

The Aransas Project petitions Supreme Court to save Whooping Cranes

Harris County Attorney Vince Ryan comes to aid of endangered whooping cranes — Whooping Crane in Texas marsh. USDA Photo by John Noll.

Harris County Attorney Vince Ryan has joined the fight to protect the habitat of the endangered Whooping Cranes. Ryan submitted a brief on Friday, April 17, asking the United States Supreme Court to uphold a federal district court’s finding that the Texas Commission on Environmental Quality (TCEQ) adversely impacted the habitat of the Whooping Cranes, leading to the deaths of 23 of the protected species.

County Attorney Ryan filed the brief in support of the position of the Aransas Project, a nonprofit group of environmentalists, business owners, anglers and conservationists, who are asking the Supreme Court to overturn the Fifth Circuit Court of Appeals’ reversal of the district court judge.

“If allowed to stand, the Fifth Circuit’s decision will have an adverse effect on future litigants in federal district court,” Ryan said. “The petitioners in this case are fighting to stem the erosion of a habitat that brings richness to our lives and waterways. If the commission tasked with protecting our environment is also allowed to destroy it, then the duty to protect it must fall to others, to all of us.”

In his brief, County Attorney Ryan argues that the Fifth Circuit embarked on a fact-finding mission in conflict with federal rules of procedure. According to the County Attorney, the Fifth Circuit undermined the decision-making authority of district court judges. Ryan said that could adversely affect future lawsuits initiated or defended by the Harris County Attorney’s Office.

In 2013, Senior U.S. District Judge Janis Graham Jack found that the TCEQ mismanaged freshwater inflows from the Guadalupe River into the San Antonio Bay estuary, violated the Endangered Species Act, and caused the deaths of the Whooping Cranes. That decision was later
overturned by a three-judge panel of the Fifth Circuit Court in New Orleans, which called the district court’s action an “abuse of discretion” and ruled the deaths were not foreseeable as a result of the state’s water policy.

In a detailed dissent, Fifth Circuit Judge Edward Prado suggested the judges who voted to reverse the district court’s ruling applied their own facts to the case rather than using those of the trial judge. He wrote that “the Supreme Court has reversed this court before for improperly reweighing the factual findings of district courts.”

Click on the following to read the documents:

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Aransas Project petitions Supreme Court to save Whooping Cranes

April 20, 2015 by Admin

Monday, April 20, 2015 10:18 am

In 2013, Senior U.S. District Judge Janis Graham Jack found that the TCEQ mismanaged freshwater inflows from the Guadalupe River into the San Antonio Bay estuary, violated the Endangered Species

Act, and caused the deaths of the Whooping Cranes. That decision was later overturned by a three-judge panel of the Fifth Circuit Court in New Orleans, which called the district court’s action an “abuse of discretion” and ruled the deaths were not foreseeable as a result of the state’s water policy.

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Whooping Crane Litigation Needs Financial Help

January 31, 2015January 17, 2015 by Admin

Friends of the Wild Whoopers has made a contribution to The Aransas Project. We urge you and/or your organization to do likewise. This group is working on behalf of all of us, wildlife and water needs. Now they need financial help to appeal their case to the U.S. Supreme Court. Please contribute any amount you can.

The Aransas Project leaders request that you: “Please let us hear back from you with pledges and checks. You can send your check, and made out to, The Aransas Project, c/o BlackburnCarter, 4709 Austin St., Houston, Texas 77004, donate online, or you can email your pledge or commitment to make a donation to jbb@blackburncarter.com. TAP is a 501(c)(3) non-profit and donations are tax deductible.” Details follow.

Update from The Aransas Project – February 1, 2015

This update is intended for groups and individuals who are members of The Aransas Project (TAP). As you probably have heard, Judge Jack’s wonderful decision in TAP v. Shaw, et al was overturned by the 5th Circuit Court of Appeals. We sought a Motion for Rehearing from the full 5th Circuit and were turned down by an 11-4 vote. However, Judge Prado wrote a strong dissent wherein he laid out a blueprint for an appeal to the U.S. Supreme Court. I am writing to update our situation with regard to a Supreme Court appeal and to ask your help and support.

Appeal to the U.S. Supreme Court

We do not have a right to be heard by the U.S. Supreme Court. Instead, we have the right to petition the court to hear our case. This is called a Petition for Certiorari, or the “cert petition.” We have 90 days from mid-December to file our cert petition. The board of directors of TAP has authorized the legal team to prepare this petition and work is underway.

This appeal is neither easy nor certain. We have to identify a reason for the Supreme Court to grant our petition. As a general proposition, this court is concerned about legal issues and less so about the outcome of a particular dispute. As they view their job, they can only hear a certain number of cases, and they try to address legal questions which, if resolved, will clarify applicable law throughout the United States. The most common case taken by the U.S. Supreme Court is one where different Courts of Appeal across the United States are in conflict on the interpretation of a law. The court also takes cases that involve the U.S. Constitution and cases that involve a failure of a court of appeals to follow Supreme Court rules.

In the dissent written by Judge Prado, he identified that, in his opinion, the decision issued by the three judge panel (Judges Jones, Smith and Garza) violated rules of appellate review set by the Supreme Court. In particular, Judge Prado felt that the three-judge panel substituted its opinion regarding fact findings in place of the trial court’s fact findings. According to the rules, the court of appeals is supposed to accept the trial court’s factual determinations, unless there is clear error, and mostly restrict its review to points of law.

In our case, the panel stated that they were correcting an “error of law” and then proceeded to rewrite Judge Jack’s fact findings and findings of witness credibility. Judge Prado felt that this was legal error and pointed out that the 5th Circuit has been corrected for this same error by the U.S. Supreme Court in the past. We are planning to make this argument of procedural error a central aspect of our appeal.

We are also exploring types of substantive challenges that we will include in our petition. For example, there are two issues that may be appropriate for this appeal, one addressing the issue of regulator liability under the federal Endangered Species Act and the other addressing the issue of the 5th Circuit refusing to follow the clear wording of the definition of “harm” under the regulations implementing the ESA.

Your support is needed for this appeal

This is not an easy appeal. It will take time and effort from many dedicated lawyers. The lead will be taken by Charles Irvine and Mary Conner of the firm of Irvine and Conner. They were part of the original TAP litigation team. I will remain as lead counsel but will not take primary writing responsibility. We will seek assistance from David Kahne of Houston, a volunteer Washington D.C. law firm and one or more law professors. And this will require money.

At this point in time, I need to ask any and all of you for financial support for this effort. My estimate is that we will need at least $50,000 for this effort. Printing and filing the petition with all requisite copies alone will cost at least $5000 and we will likely pay two more attorneys to assist in issue development and review.

The bottom line is that we need to raise money now. The fees for all litigation and appeals to date exceeded $3 million, but we will endeavor to use $50,000 to cover the costs of a Supreme Court review. The family that earlier generously supported TAP has ended their financial support of the TAP litigation, and we are continually grateful for the help and assistance to this point in time. Thus, we need to raise some money now from groups and individuals that care about this action.

Please let us hear back from you with pledges and checks. You can send your check, and made out to, The Aransas Project, c/o BlackburnCarter, 4709 Austin St., Houston, Texas 77004, donate online, or you can email your pledge or commitment to make a donation to jbb@blackburncarter.com. TAP is a 501(c)(3) non-profit and donations are tax deductible.

Any help of any type is appreciated. We have an initial commitment from the Matagorda Bay Foundation and are hopeful of support from one or more foundations.

As a final note, I want to thank all of you for your support so far. We could not be where we are without the members that gave us standing for the litigation and support for the effort.
Please feel free to forward this on to a friend.

Jim Blackburn
LEAD COUNSEL, THE ARANSAS PROJECT

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