Ruling in Endangered Species Act Whooping Crane Lawsuit Stayed by Fifth Circuit
On March 11, 2013, the U.S. District Court for the Southern District of Texas issued a decision in The Aransas Project v. Shaw, an action relating to Texas Commission of Environmental Quality ("TCEQ") water management policies with respect to the endangered Whooping Crane’s winter habitat, the Aransas National Wildlife Refuge (the "Refuge"). The court found that TCEQ violated Section 9 of the Endangered Species Act ("ESA") in failing to allow for sufficient freshwater flows from the San Antonio and Guadalupe Rivers into the Refuge during the 2008-2009 winter.
The Shaw case was initiated by environmentalists, local business owners, bird enthusiasts and others who formed The Aransas Project ("TAP") to protect the interests of the Whooping Crane and the environmental conditions of the Refuge. The action was prompted by a severe drought during the 2008-2009 winter, which caused at least 23 cranes, or 8.5% of the Refuge’s flock, to die and 34 cranes to leave Texas in the spring without returning to the Refuge the following fall.
Prior to filing the lawsuit, TAP petitioned the TCEQ for a water permit to require a certain amount of freshwater to remain instream in the Guadalupe and San Antonio river systems so that it may reach the Refuge. After TCEQ denied TAP’s permit request, on March 10, 2010, TAP filed suit, alleging that TCEQ’s failure to properly manage freshwater inflows into the San Antonio and Guadalupe bays caused the Refuge to become hypersaline, reducing the availability of the cranes’ drinking water and primary food resources, effectively causing the death of the 23 cranes, which constituted an unlawful "take" of the cranes under Section 9 of the ESA.
The court rejected TCEQ’s contention that it had no power to protect the Whooping Cranes because its hands were tied by Texas’ "first in time, first in right" priority water system, finding that TCEQ had emergency authority to take the necessary acts to protect bays and wildlife and also the power and duty to abide by federal law and mandates. The court thus enjoined TCEQ from approving new water permits affecting the Guadalupe or San Antonio Rivers until the State of Texas provided reasonable assurances to the Court that such permits would not take Whooping Cranes in violation of the ESA. The court also required TCEQ to seek an Incidental Take Permit that would lead to development of a habitat conservation plan.
On March 26, 2013, pursuant to a motion by TCEQ and the Guadalupe-Blanco River Authority as an intervenor, the U.S. Court of Appeals for the Fifth Circuit stayed the District Court’s judgment pending appeal and granted TAP’s motion to expedite the appeal.
The opinion of the U.S. District Court for the Southern District of Texas is available on the Aransas Project’s website. The opinion of the U.S. Court of Appeals for the Fifth Circuit is available on theTCEQ website.