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.

friendsofthewildwhoopers.org logo

***** 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.