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Friday, June 21, 2024 | Back issues
Courthouse News Service Courthouse News Service

Whooping Cranes 1, Texas 0

CORPUS CHRISTI, Texas (CN) - Texas violated the Endangered Species Act by diverting freshwater from a critical whooping crane refuge and must act to protect the birds, a federal judge ruled.

The judge noted that the environmental groups gathered credible evidence from world-renowned experts, including a Nobel Laureate, whereas one of Texas's experts "admitted that he had made up [an] entire statement" to try to defend the state, the judge wrote.

The state's whooping crane population teetered closer to extinction after the harsh winter of 2008-09 brought the death of 23 birds, environmentalists claimed in Federal Court.

The Aransas Project (TAP), a coalition of groups concerned with the birds' decline in the Aransas National Wildlife Refuge, sued the state in March 2010.

The coastal refuge provides a winter home for the last self-sustaining population of wild whooping cranes.

The nonprofit Aransas Project claimed 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 pointed to reports that the birds became emaciated and exhibited unusual behavior, such as denying food to their offspring.

TAP said the death of the whooping cranes constituted an unlawful taking under Section 9 of the Endangered Species Act, and it sought declaratory and injunctive relief.

Texas claimed that the Supreme Court's 1943 ruling in Burford v. Sun Oil Co. required the District Court to abstain from adjudicating the case, since Texas had a comprehensive regulatory scheme, set in place by Senate Bill 3. The bill established the use of the Environmental Flows Allocation Process, or E-flows, to deal with inflow water needs.

Senior U.S. District Judge Janis Graham Jack disagreed with Texas, and found that the court does have jurisdiction under the Endangered Species Act. She issued a 124-page opinion and verdict in favor of TAP on Monday.

"The mere existence of a state-created administrative body does not override the jurisdictional power of a federal court," Jack wrote. "The E-flow scheme and process may hopefully provide important and scientifically sound information to water officials and policy makers concerning each basin and bay, and eventually, promote actions to secure the recommended inflows and keep the rivers 'wet.' However, to suggest that S.B. 3 can protect the whooping cranes, when by its own admission, it specifically excludes the cranes' habitat in times of water emergencies, is to argue that state law pre-empts federal law. This topsy-turvy view of federalism and the Constitution's Supremacy Clause has no basis in the existing constitutional scheme."

Jack found that TAP had experts who "were world renowned in their respective fields" and gave "compelling and credible" testimonies during an eight-day bench trial.

The judge blasted several individuals who were called to counter TAP's arguments.

Dr. R. Douglas Slack was among those who contributed evidence for the Guadalupe-Blanco River Authority and the San Antonio River Authority, two of the parties granted leave to intervene.

"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," the opinion states. "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 that the threat of imminent harm called for injunctive relief.

The judge ordered the TCEQ to obtain an incidental take permit and develop a habitat conservation plan, a process that Jack says "allows flexibility by protecting economic interests of stakeholders while also protecting the endangered species."

The court will retain jurisdiction while the state develops its habitat conservation plan.

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