- Associated Press - Tuesday, December 16, 2014

NEW ORLEANS (AP) - The federal appeals court in New Orleans has voted 11-4 against reconsidering a ruling that Texas is not directly responsible for the deaths of 23 endangered whooping cranes and doesn’t have to draw up a conservation plan balancing the interests of water users with the need to protect the big birds’ habitat.

In June, the 5th U.S. Circuit Court of Appeals overturned a district judge’s ruling that Texas should have known that permits to withdraw water from rivers flowing into the Aransas and San Antonio bays would let saltier Gulf of Mexico water flow in, reducing availability of key foods for the world’s only natural flock of whooping cranes.

The Aransas Project, an environmental group, will ask the U.S. Supreme Court to consider the case, for reasons including those in a strong 36-page dissent by three of the judges, attorney Jim Blackburn wrote in an email.

That opinion, written by Judge Edward Prado and signed by Judges James Dennis and James Graves, said the appeals court did something it should not do, reconsidering facts rather than ruling about procedure. Other 5th Circuit judges have given the same reason in two other dissents this year, including one about Texas’ abortion law, Prado wrote.

“This decision, and others like it, sends a clear message to litigants: If you don’t like the factual findings of a district court, the doors of our Court are wide open to endless retrials on appeal. This is the wrong message to send, and it evinces an alarming lack of trust in the work of our colleagues in the district courts,” he wrote.

After an eight-day trial - and after reviewing more than 90 hours of video - Judge Janis Graham Jack found that The Aransas Project’s witnesses were credible and those for the state, two water districts and the Texas Chemical Council were not, “and for good reason,” Prado wrote.

The Aransas Projects witnesses included an environmental scientist who had won a Nobel Prize, scientists and statisticians from prestigious national universities, MacArthur Fellows and people who had written many scientific papers. “The other side’s expert witnesses had limited experience and insignificant expertise - indeed, one of them admitted he ‘made up’ key portions of his testimony,” Prado wrote.

He also noted that the 5th Circuit had affirmed a 1991 decision that government-allowed logging had killed endangered red cockaded woodpeckers because they prefer trees more than a century old, while the logging rules kept trees from growing more than about 80 years.

“If the difference between 80- and 100-year-old trees can support a finding of a ‘take,’ surely a district court - faced with emaciated crane corpses - could reasonably conclude” that cutting the amount of fresh water flowing into the birds’ critical habitat had hurt their ability to find food, Prado wrote.

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