The Aransas Project (TAP) team wanted to provide a New Year’s update on the Whooping Crane litigation, TAP v. Shaw, against the Texas Commission on Environmental Quality (TCEQ). The following is a summary of the highlights from the past year.
As most everyone knows, we had a tremendous victory in Corpus Christi federal court before Judge Janis Jack back in March 2013. The opinion by Judge Jack was 124 pages in length and held, among other things, that the water management actions of the TCEQ commissioners and executive director caused the death of at least 23 Whooping Cranes. Judge Jack also ordered the TCEQ officials to apply for an Incidental Take Permit which requires the development and approval of a Habitat Conservation Plan (HCP) that should lead to the provision of additional freshwater inflow to San Antonio Bay.
It was a decisive victory for TAP, the Whooping Cranes, and San Antonio and Aransas Bays.
TCEQ Appeals to Fifth Circuit
After the victory, the TCEQ appealed the decision to the federal Fifth Circuit Court of Appeals. Immediately, the Defendants asked the appeals court for an emergency stay of the district court’s judgment so that they would not have to take steps towards implementation of the district court’s order.
The Court of Appeals granted the emergency stay, and the district court’s decision was put on hold. At the same time, however, at the request of TAP, the Court of Appeals also granted an expedited appellate schedule—and the oral argument before a three-judge panel of the Fifth Circuit was scheduled for August 2013. The written briefs were submitted by the parties in May and June.
In the written briefs, it was apparent that the TCEQ Defendants, as well as the Intervenors—the Guadalupe-Blanco River Authority (GBRA), the San Antonio River Authority (SARA) and the Texas Chemical Council—would be challenging nearly every aspect of the district court’s decision. The Texas Solicitor General submitted a brief on behalf of the TCEQ, and GBRA took the lead on behalf of the Intervenors. In GBRA’s brief, the Intervenors largely mounted a factual attack, challenging whether TAP had proven the various facts at trial. GBRA also claimed that the Senate Bill 3 process would provide sufficient water for the Bays, and that therefore the district court should have abstained from rendering a decision. In the TCEQ’s brief, the State argued that they, as the entity regulating water permits, could not be held liable for downstream harms to the Bay. The State also argued that the Tenth Amendment acted as a barrier to their possible liability.
Oral Argument in New Orleans
Oral argument was heard in New Orleans on August 8, 2013 by a three-judge panel comprised of Judges Edith Jones, Jerry Smith and Emilio Garza. It was a very engaged panel, with many questions to counsel for all parties. A full transcript of the hearing can be found here. It is too difficult to predict which way the panel may rule based on the questions during oral argument.
As of today, December 31, 2013, no decision has been issued by the Fifth Circuit. Sometimes, with complicated cases, the Fifth Circuit may take a few months to issue a decision. (A time period of greater than 6 months to issue a decision is unusual for the Fifth Circuit). Depending upon the ruling, this case could be either headed back to the District Court, or headed for further appellate review, either for en banc (full court) review by all of the judges of the Fifth Circuit, or potentially to the U.S. Supreme Court.
TAP Opposes New GBRA Water Rights Permits
In the meantime, TAP has become engaged in additional legal action regarding the Guadalupe River and water rights. GBRA has applied for a permit to withdraw water from the Guadalupe near Gonzales to fill an off-channel reservoir and has applied for a permit to take water “created” behind the salt water barrier through withdrawal points anywhere up to 200 miles upriver from the barrier. TAP’s attorneys have long been concerned about the operation of the salt water barrier that exists on the Guadalupe River just above the SH 35 bridge crossing the Guadalupe delta and are particularly concerned about the impact of the new proposed withdrawal permits. TAP has requested a contested case hearing on the Gonzales new water withdrawal permit and will be actively opposing both of these permit applications when they become ripe for hearing.
The one thing that is clear from our experience in the TAP litigation is that those concerned about the future of the health of our bays will have to fight for these bays. There are many competing demands for water in our state. That is just a fact of life in Texas today, and if we don’t understand that and if we don’t fight back hard and creatively, we may lose our coastal bays and estuaries.
The Whooping Crane is not only a magnificent white bird but also a symbol of a healthy ecosystem and economy. The San Antonio Bay and Estuary ecosystem can and does produce blue crabs and wolfberries for the Whoopers – this ecosystem also produces shrimp for the trout and shrimp for the shrimper and of course trout for the recreational fishermen and women – and it supports tackle sales, home and motel rentals and house sales. Ecology and economy go together, and we need to emphasize that linkage every way that we can.
At this time, TAP is initiating a major fundraising effort to support these administrative law hearings, as well as upcoming legal proceedings in TAP v. Shaw. If you would like to help TAP protect whooping cranes and the bay, please visit this page and make a donation. Or, if you prefer, you can send a check to The Aransas Project, PO Box 1839. Rockport, TX 78381-1839, or you can email us for instructions. TAP is a 501(c)(3).
From Jim Blackburn & the TAP legal team at Blackburn Carter