by: David Sikes, Caller Times
ARANSAS COUNTY – A federal appellate court Monday reversed a 2013 U.S. District Court decision that found the state responsible for killing 23 whooping cranes by withholding water from the lower reaches of the Guadalupe River where the endangered birds spend winter.
The Fifth Circuit Court of Appeals ruled the Guadalupe-Blanco River Authority and the Texas Commission on Environmental Quality were not responsible because the deaths were not foreseeable as a result of the state’s water policy on freshwater inflows into the San Antonio Bay system.
The world’s last wild flock of whooping cranes, which numbers about 300, spends each winter in the bay’s estuary within or near the Aransas National Wildlife Refuge. The estuary relies on freshwater for its overall health and for the survival of blue crabs, the majestic bird’s primary food source.
The Aransas Project, a nonprofit group that advocates responsible water management for the Guadalupe River, filed a federal lawsuit following the die-off, claiming the Texas Commission on Environmental Quality violated the Endangered Species Act. In 2013, Senior U.S. District Judge Janis Graham Jack, in a 124-page opinion, upheld the group’s claim that the state was at least partially to blame for a 2009 whooping crane die-off in violation of the Endangered Species Act. The appellate court disagreed fully in its decision, referring to the district court’s action as an “abuse of discretion.”
Texas Attorney General Greg Abbott hailed the decision as a significant win for the State of Texas. He wrote in a news release Monday that the reversal is especially good for farmers, ranchers, and communities along the Guadalupe and Blanco rivers who would have been irreparably harmed by the lower court’s ruling.
“Today’s decision rightfully rejected an attempt to force Texas into a costly federal permitting regime, and affirmed that it is the state’s right and responsibility to manage its own natural resources,” Abbott wrote.
The Aransas Project’s lead attorney, Jim Blackburn, characterized Monday’s decision as very narrow and a road map for his next strategy.
“This is not nearly as bleak as the GBRA says,” Blackburn said. “The courts still said the state killed 23 whooping cranes. It just said they’re not liable. We don’t think by any means this is an end to this issue.”
Part of Monday’s ruling involved throwing out Jack’s earlier order for the state to seek an incidental take permit and develop a Habitat Conservation Plan for the Guadalupe River estuary. She gave the commission 30 days to begin the lengthy process of designing a plan to minimize and mitigate risks to the cranes while balancing the interests of other river users and water rights holders.
Blackburn said it would be wise for the river authority to create this plan on its own.
“It’d be the smart thing to do,” he said.
Retired U.S. Fish & Wildlife Department biologist Tom Stehn, the wildlife refuge’s whooping crane scientists for 29 years, agreed with Blackburn and disagreed with the appellate court’s assertion that the state’s water policy does not pose a future threat.
“It may not have been foreseeable back then, but we know now that withholding water affects the crabs and that’s going to affect the cranes,” Stehn said. “I just wish the state would bite the bullet and create the conservation plan on its own. Because this problem is not going to go away.”