Appeals court exonerates Texas water board
State water board blamed for whooping crane deaths
By MIKE CORN
A federal appeals court panel in Texas has turned aside a lower court's decision faulting a water board for its actions resulting in the death of 23 whooping cranes in 2008 and 2009.
The three-judge panel for the Fifth Circuit Court of Appeals acknowledged actions by the Texas Commission on Environmental Quality was responsible for the deaths, but determined the water board couldn't have foreseen that possibility.
The deaths of initially four cranes was blamed on starvation. Biologists with the U.S. Fish and Wildlife Service determined 19 other cranes also died that season.
The Aransas Project, formed in the wake of the deaths, ultimately sued the TCEQ, claiming the state's "actions and failures to act in managing water diversion in the San Antonio and Guadalupe River systems violated the ESA by harming and harassing cranes in the flock and causing the deaths of twenty-three cranes."
In March 2013, a federal court adopted TAP's proposed findings and found the Texas agency violated the Endangered Species Act through their water-management practices.
After explaining in detail the court's rationale, it finally found the state can't be held liable under the Endangered Species Act.
"Because the deaths of the whooping cranes are too remote from TCEQ's permitting withdrawal of water from the San Antonio and Guadalupe Rivers, the state defendants cannot be held liable for a take or for causing a take under the ESA," the three-judge panel ruled. "Even if the state defendants should be held liable, the injunction was an abuse of discretion."
"TAP will continue to evaluate the opinion of the Fifth Circuit and may seek further review in the courts," the organization said in announcing the decision. "However, it is clear that the Fifth Circuit accepted much of TAP's factual case that unrestricted water diversions in this river basin can lead to the deaths of endangered Whooping cranes. The Fifth Circuit clearly accepted that whooping cranes were killed."
But, TAP said in the statement, even if TCEQ isn't liable, the private third-parties who actually divert the water could be liable.
They said that could affect as many as 800 water users in the basin.
"The Aransas Project will vigorously continue its legal and scientific efforts to protect the only natural flock of whooping Cranes on earth," the group said. "We urge the state of Texas to take pride in hosting the last wild flock of Whooping Cranes and join with TAP in our efforts to preserve this remarkable and irreplaceable feature of Texas' natural history.
The cranes winter at the Aransas National Wildlife Refuge before heading back north -- through Kansas -- to spend the summer months in Wood Buffalo National Park in Canada.