Tom Stehn, retired United States Whooping Crane Coordinator discussed his position concerning the recent 5th Circuit Court of Appeals ruling in The Aransas Project v. Shaw case with Friends of the Wild Whoopers (FOTWW) today.
As expected Tom Stehn has strong and serious concerns about the 5th Circuit’s ruling. And that’s to be expected. After all, he was the chief manager of the Aransas/Wood Buffalo population of whooping cranes for 29 years.
The case decided this week by the 5th Circuit involving water management in Texas and the Endangered Species Act was a major one for whooping crane organizations and other conservation groups. The Court ruled that the State of Texas water management agency was not liable for “take” of endangered whooping cranes on the drought- suffering Aransas National Wildlife Refuge during the winter of 2008-09. The 5th Circuit’s decision in The Aransas Project v. Shaw reversed a landmark victory for the environmental plaintiffs in the U.S. District Court, Southern Division of Texas, Corpus Christi Division District trial court.
The major issue in the case was whether Texas, by permitting and managing water uses under state law, had caused the deaths of endangered whooping cranes thus violating the ESA.
The U.S. District Court issued its “Memorandum Opinion and Verdict of the Court” on March 11, 2013. The lower court found that 23 cranes had died on the refuge during the 2008-09 winter, that their deaths were caused by habitat declines caused by low water levels in the Guadalupe Estuary (San Antonio Bay), and that Texas could have used its powers under state water law to prevent such low water levels. Thus, even though Texas itself was not the water user, it had violated the ESA prohibition on “take” of listed species. The District Court ordered Texas to seek an “incidental take permit,” by which the ESA allows limited harm to listed species caused by otherwise-lawful actions, but also provides certain protections for species and their habitats.
On appeal, the 5th Circuit held that the lower court had gotten it all wrong and turned on the issue of causation. While the 5th Circuit upheld the District trial court’s disputed finding that 23 cranes had died on the refuge, the appeals court found that the causal chain between Texas’ actions and the dead cranes was too attenuated, and the harm was not reasonably foreseeable.
FOTWW and many conservation groups were appalled and saddened by the 5th Circuit’s decision. Tom Stehn told FOTWW: “I’m hoping that in the future, Guadalupe-Blanco River Authority’s (“GBRA”) desire to build off-channel reservoirs will trigger the ESA and they at that point may have to write a Habitat Management Plan. In the meantime, I assume more applications for water permit withdrawals from the Guadalupe River are being processed; a river that many conservationists feel is already over-appropriated.
Stehn expounded that, “The recent Fifth Circuit Court of Appeals ruling that the State was not liable for the whooping crane deaths in the 2008-09 winter is a blow to whooping crane recovery, but also has wider impacts. The ruling potentially impacts the health of the Guadalupe River and the bays that rely on river inflows to be productive.”
Stehn continued, “In my opinion, the court’s reasoning was at least partially flawed. The court concluded that the death of the 23 whooping cranes (8.5% of the flock) in the 2008-09 winter was a rare convergence of unforeseeable, unique events, a perfect storm scenario, that is unlikely to imminently happen again. Data that I collected in my 29 years at the Aransas National Wildlife Refuge indicated that whooping crane die-offs have happened before. For example, 11 whooping cranes (7.5% of the flock) had died in the 1990-91 winter when marsh salinities had been extremely high. Back then, we didn’t know enough to make the connection between river inflows, blue crabs, and whooping crane health. That connection was fully demonstrated in the recent court case, and the court ruling did not throw out that linkage. More recently, I believe crane mortality was also unusually high in the 2011-12 winter, but that data was not collected after my retirement due to a change in the aerial method of counting the cranes where only a portion of the flock is surveyed and mortality is not documented. Future crane die-offs related to drought and insufficient inflows are foreseeable and will continue to occur.”
“The need to provide sufficient river inflows to keep our bays productive is just one of the issues facing the whooping crane population” advised Tom Stehn. He explained other potential problems stating that, “With the ongoing sea level rise forecast to reach more than 3 feet by the end of the century, all of the current whooping crane marshes will become too deep for the whooping cranes to use. Also, as the climate warms and we no longer get sustained hard freezes, black mangrove normally killed by cold weather is moving north and will likely become the dominant plant over the entire Texas coast, replacing plants such as Carolina wolfberry that whoopers feed upon heavily every fall. A species that loses its habitat is in for hard times.”
Stehn enlarged on the problems by describing: “The picture is also alarming in the crane’s migration corridor, where decreased rainfall amounts are expected to dry up stopover wetlands, and thousands of wind turbines and associated power lines are being built right next to whooping crane wetlands. And illegal shootings of Aransas whooping cranes is still occurring; note the two instances of radio-tagged birds found dead in the last few winters. Now is not the time for the Court to negate measures that would help the whooping crane.”
“For the whooping crane to survive, people need to remain vigilant and continue working to help the species” said Stehn. And he opined: “Yes, providing the needed inflows to keep our bays healthy and provide the crabs and wolfberries that the whooping cranes need to survive may very well mean people will have to become better water conservationists, but South Texans should be willing to support that choice. Just observe the stream of cars late Friday afternoons pouring into the Coastal Bend for a weekend of fishing and nature appreciation. If you want to see lots of birds and like to catch fish in San Antonio and Aransas Bays that both rely on river inflows, you should be disturbed by the court ruling.”
Tom Stehn concluded by recounting: “As stated perfectly in the Caller-Times editorial of July 2nd, I totally agree that the state of Texas ‘needs to develop a management plan in the birds’ best interest and enforce it’. So far, Texas water managers and legislators have failed to provide minimum conservation flows essential for our priceless Texas rivers and bays. To comply with the Endangered Species Act, the Guadalupe-Blanco River authority should voluntarily write a Habitat Conservation Plan for the whooping crane to provide the necessary inflows. If the GBRA had been willing to do this, litigation would not have been needed in the first place since that had been the main judgment The Aransas Project had asked for in the litigation. In summary, without a change of direction, how can we expect our bays and whooping cranes to remain healthy when new water rights continue to be granted from the Guadalupe River that many conservationists feel is already over-appropriated?”
***** FOTWW’s mission is to protect the Aransas/Wood Buffalo population
of wild whooping cranes and their habitat. *****