Texas Officials Appeal Whooping Crane Order

(CN) - Developing a freshwater conservation plan for whooping cranes would "cause irreparable harm" to Texas farmers and ranchers, officials claimed, urging the 5th Circuit to stay a federal judge's order.

Senior U.S. District Judge Janis Graham Jack ruled last week that Texas had violated the Endangered Species Act by diverting freshwater from the San Antonio and Guadalupe Rivers from a critical whooping crane refuge.

The March 11 injunction bars Texas from approving or granting new water permits affecting the rivers until it can prove the permits will not harm whooping cranes.

On Friday, Jack refused to stay her ruling pending appeal but did modify the injunction so that Texas can issue water permits necessary to protect the public's health and safety.

Texas Attorney General Greg Abbott took the fight to the New Orleans-based federal appeals court on Wednesday with a 301-page emergency stay motion.

"Given the substantial threat that the lower court's decision poses to farmers, ranchers and communities along these significant Texas rivers, the state cannot afford to wait for the lengthy appeals process to play out - so we are seeking an emergency stay to set aside that legally flawed ruling as we vigorously pursue an appeal," Abbott said in a statement. "The courts have no authority to command that state officials involuntarily submit to a federal regulatory regime, so today's appeal seeks to avoid wasting taxpayer dollars on a costly bureaucratic requirement that should never have been ordered in the first place."

The last self-sustaining population of wild whooping cranes had made a winter home out of the Aransas National Wildlife Refuge, which sits on the San Antonio Bay along the Gulf Coast, but environmentalists said the harsh winter of 2008-09 killed 23 birds and left the state's whooping crane population teetering on extinction.

In a 2010 complaint, The Aransas Project (TAP) claimed that the Texas Commission on Environmental Quality (TCEQ) mismanaged the flow of freshwater to the birds' habitat, resulting in higher salinity and a reduction of wolfberries and blue crabs - staples of the whooping crane diet. It claimed the birds also lacked freshwater for drinking.

TAP said the whooping cranes' deaths constituted an unlawful taking under the Endangered Species Act, and it sought declaratory and injunctive relief.

Texas claimed that Supreme Court precedent required the District Court to abstain from adjudicating the case, since Texas had a comprehensive water regulatory scheme, set in place by Senate Bill 3.

In an eight-day bench trial, Jack found that TAP's experts gave compelling testimony in the whooping cranes' defense. She took issue, however, with the testimony Dr. R. Douglas Slack gave on behalf of two intervening defendants, the Guadalupe-Blanco River Authority and the San Antonio River Authority.

"Dr. Slack testified that the whooping cranes had well developed supraorbital salt glands which rid the body of excess salt, making them capable of living in a salt water marsh with no freshwater," Jack wrote. "When pressed by the court, he admitted that he had made up that entire statement."

Jack concluded that Texas was responsible for the unlawful taking of whooping cranes, and ordered the TCEQ to obtain an incidental take permit and develop a habitat conservation plan for the bird.

Jack's court will retain jurisdiction while the state develops its conservation plan.

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