Court reverses decision linking state actions to death of whoopers

Sara  Sneath By Sara Sneath

June 30, 2014 at 1:30 a.m.
Updated July 1, 2014 at 2:01 a.m.

The Fifth Circuit Court of Appeals ruled the state's environmental agency was not responsible for the deaths of 23 whooping cranes wintering at the Aransas National Wildlife Refuge from 2008 to 2009.

The ruling was a reversal of a district court's previous decision that the state agency violated the Endangered Species Act by diverting water from the Guadalupe and San Antonio rivers away from the estuary that feeds the cranes.

"The initial decision of the district court would have had drastic implications for water availability throughout the state," said Bryan W. Shaw, Texas Commission on Environmental Quality chairman, in a written statement Monday. The Aransas Project, a group of concerned citizens, businesses and municipalities that advocates for responsible water management of the Guadalupe River Basin, said the state's issuance of water permits lead to increased salinity in the bays. The salinity reduced the amount of the cranes' staple food sources - blue crabs and wolfberries - ultimately leading to the death of 23 whooping cranes, according to The Aransas Project.

But the federal court found the chain of events lacking foreseeability.

"The situation is similar to Judge Henry Friendly's hypothetical, noted by the Supreme Court in the Exxon case, supra, in which a vessel colliding with a bridge should not be held liable for the death of a patient whose doctor arrived late because of the bridge closing," according to the court's decision.

"The Court of Appeals did not feel the evidence presented showed a future imminent threat to the cranes, especially since the population has continued to increase," wrote Tom Stehn, who until January 2011 served as the United States Whooping Crane Coordinator for the U.S. Fish and Wildlife Service, in an email Monday. "I disagree with that statement about future threats. In my opinion, the cranes are going to continue to be harmed by insufficient freshwater inflows. If we had better biological data, that link would be strengthened, and we would presumably be able to show that the high mortality in 2008-09 was not an isolated event."

Monday's ruling overturns the district court's injunction stopping the state's environmental agency from issuing new water permits for the Guadalupe and San Antonio rivers.

"GBRA is confident that none of its responsible water projects, which are essential to ensuring adequate water for a growing population, have any negative consequences on the whooping crane flock that visits Texas each winter," said Guadalupe-Blanco River Authority general manager Bill West Jr. in a written statement Monday.

The Guadalupe-Blanco River Authority, San Antonio River Authority and Texas Chemical Council filed as defendant interveners in the case.

Jim Blackburn, the Houston attorney representing The Aransas Project, said the decision is not an all-out loss for whooping crane advocates.

The federal court said that the amount of steps in between the state environmental agency's water management decisions and the death of the whooping cranes were too extensive for the state to predict harm to the endangered birds. But they also didn't throw out scientific evidence linking the two, Blackburn said.

A federal court ruling documenting the linkage between fresh water inflows to the bay and the health of whooping cranes may be all that's needed to prove foreseeability in the future, Blackburn said.

"Clearly, we would have liked a right-out victory, but given the issues, we think we've got both a basis of appeal and, frankly, avenues that are now open to us," Blackburn said. "What they said was even though we proved causation, the state reasonably couldn't have been on notice that what they did with their water would have this effect. Well, if they didn't know then, then they certainly know now."



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