(CN) – Texas is not responsible after 23 endangered whooping cranes allegedly died because of licensed water diversions from the bird’s winter habitat, the 5th Circuit ruled.
“The whooping crane is a majestic bird that stands five feet tall and has a wingspan of more than eight feet,” the unsigned Monday decision states. “It once came close to extinction and, despite international recovery efforts, is still endangered. The world’s only wild flock, called the Aransas-Wood Buffalo flock, consists of almost 300 birds and inhabits the Aransas National Wildlife Refuge in Texas during the winter and Wood Buffalo National Park in Canada in the summer.”
During a severe drought in the winter of 2008-09, however, the flock declined to 247 cranes, with many crane dying from starvation.
A nonprofit dedicated to the whooping crane’s survival, The Aransas Project (TAP), sued the Texas Commission on Environmental Quality (TCEQ), claiming that the commission’s failure to properly manage water diversion in the San Antonio and Guadalupe River systems caused the deaths of 23 cranes.
TAP said the licensed withdrawals of water from the rivers resulted in a decline in freshwater flows to the wildlife refuge, increasing its salinity, which caused a decline in the number of blue crabs and wolfberry plants, the two primary foods of whooping cranes.
A federal judge granted TAP an injunction last year, ordering the commission to implement new water permits with assurances to the court that the permits will not cause any harm to the whooping cranes.
The 5th Circuit quickly stayed that ruling, however, and reversed for the Commission on Monday.
“The principal liability issue thus becomes whether the actions of TCEQ in administering licenses to take water from the Guadalupe and San Antonio rivers for human, manufacturing and agricultural use foreseeably and proximately caused the deaths of whooping cranes in the winter of 2008-2009,” according to the 34-page judgment. “The District Court either misunderstood the relevant liability test or misapplied proximate cause when it held the state defendants responsible for remote, attenuated, and fortuitous events following their issuance of water permits.”
While there is little reason to doubt that 23 cranes did indeed die during the 2008-09 winter, an unusually high number, “nowhere does the [lower] court explain why the remote connection between water licensing, decisions to draw river water by hundreds of users, whooping crane habitat, and crane deaths that occurred during a year of extraordinary drought compels ESA [Endangered Species Act] liability,” the three-judge panel added.
Attributing bird death to state authorization of a particular activity could extend to an argument that the government’s issuance of drivers’ licenses violates the ESA when a driver runs over an endangered species, the court added in a footnote.
A 2007 report by the U.S. Fish and Wildlife Service noted that “inflows are already at times insufficient” to support the whooping crane population, and said “uncertainty remains concerning possible long-term declines in ecosystems used by the cranes as a consequence of expanding human populations and their demands for fresh water.”
According to the judgment, however, “these statements do not establish foreseeability that decreased freshwater inflows in 2008-2009 would result in abnormal crane deaths.”
“After all, during nearly six preceding decades, the same FWS report observes that human population along the rivers had steadily increased, leading presumably to increasing river water use, and the state had suffered periodic, severe droughts, but the whooping crane population was concomitantly steadily increasing after near extinction,” the panel added. “The state defendants had no reason to anticipate a significant die-off because of decreased freshwater inflows only one year after this report issued.”
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