Fifth Circuit Acknowledges 23 Whooping Crane Deaths from Lack of Inflows, Yet Refuses to Hold Texas Liable

Jul 2, 2014 |

Federal court of appeals decision offers roadmap for future cases

Today, The Aransas Project (TAP) announces its analysis of the ruling from the appeals court decision regarding TAP’s legal battle to protect the last naturally migrating flock of endangered whooping cranes. The Fifth Circuit Court of Appeals, in a narrowly-tailored decision, held that the federal district judge misapplied certain legal theories when it found that the TCEQ was liable for the deaths of 23 endangered and federally-protected Whooping Cranes in 2008-2009. TAP is considering its full range of options including further appellate review.

In a 34-page opinion, a panel of three judges of the Court of Appeals for the Fifth Circuit held that the district court misapplied certain legal standards related to causation in its decision.

TAP prevailed on several aspects of the appeal. First, TAP had legal standing to bring the case. Second, TAP presented compelling evidence that up to twenty-three endangered, federally-protected Whooping cranes actually died in 2008-2009. Third, that federal data supporting TAP’s allegations of deaths by U.S. Fish & Wildlife Service’s (USFWS) Tom Stehn was reliable. Fourth, that TAP presented evidence that the crane deaths were related to lack of essential food, water and other essential habitat requirements. And finally, there was no basis for the district court to abstain to a non-existent and ineffectual state of Texas process.

However, the appeals court panel held that the district court misapplied two legal standards when applying its fact findings. First, it held that the TCEQ could not be held liable for killing whooping cranes because TCEQ’s authorization of water use was too attenuated from the actual deaths. The panel held that the deaths of whooping cranes could not have been foreseen. In so doing, the panel acknowledged, yet brushed aside the undisputed evidence that the State of Texas signed onto the official USFWS Recovery Plan, which highlighted reduction in freshwater inflows as an important threat to Whooping Cranes. Although the panel recognized that TAP proved that TCEQ’s actions may have been the “cause-in-fact” of Whooping crane deaths, TCEQ was still not liable under the panel’s new interpretation of the Endangered Species Act. Additionally, in ruling that the 2008-2009 crane deaths were a “mere fortuity,” the panel ignored the undisputed evidence that increased whooping crane mortality is significantly related with low freshwater inflows over the past twenty years.

The panel also ruled that even if TAP had proved its case, the injunction issued by the district court was flawed because it failed to simultaneously find that TCEQ would continue to kill whooping cranes in the future. TAP believes the panel ignored all such evidence in the record, and ignored the fact that TCEQ explicitly argued that, no matter what the evidence, TCEQ refused to take any steps to avoid killing Whooping cranes in the future.

TAP will continue to evaluate the opinion of the Fifth Circuit and may seek further review in the courts. 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. Furthermore, even if TCEQ might not be liable under the ESA, the private third-parties who actually divert water would alternatively be liable. Nothing in the panel’s opinion precludes a similar case against the water users. The panel identified a roadmap, because the inevitable result of the panel’s opinion shielding the TCEQ is that instead, up to 800 water users in the whole basin would instead be liable.

The Aransas Project will vigorously continue its legal and scientific efforts to protect the only natural flock of Whooping Cranes on earth. 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.