- Associated Press - Monday, June 30, 2014

HOUSTON (AP) - A federal appeals court ruled Monday that Texas is not directly responsible for the deaths of nearly two dozen endangered whooping cranes from 2008 through 2009 because it could not have known its water management practices would kill the birds.

The ruling from the 5th U.S. Circuit Court of Appeals in New Orleans overturned a March 2013 decision by U.S. District Judge Janis Graham Jack. The lawsuit had been filed in 2010 by the Aransas Project, an environmental group.

The 5th Circuit panel - Judges Edith Jones and Jerry Smith, and Senior Judge Emilio Garza - said the Texas Commission on Environmental Quality could not have known that issuing permits to draw water from rivers that flow into the San Antonio and Aransas bays would cause those Gulf of Mexico bodies of water to become saltier, leading to a lower supply of blue crabs and wolfberries.

The blue crabs and wolfberries are key foods for the last remaining flock of wild whooping cranes that travel from Canada to Texas every winter and arrive at their Gulf Coast habitat tired and hungry.

The federal law protecting endangered species indicates a person or authority must either foresee that their action will lead to the death of the animal, or do something intentional to harm them. But in this case, the judges wrote in a 34-page opinion, “every link of this chain depends on modeling and estimation.”

The Aransas Project had argued that previous science clearly showed the cranes’ reliance on this food supply and the harm done to it when the bays are salty. In 2008 and 2009, 57 cranes died, 23 of them during the winter months in Texas, according to the project.

The state welcomed the court’s finding, saying the initial ruling would have significantly harmed water distribution and availability because it prevented the state from issuing certain permits.

“TCEQ remains committed to protecting the needs of the environment as part of its holistic evaluation of requests to appropriate state water,” Bryan Shaw, the agency’s chairman, said in a statement.

Charles Irvine, an attorney who represented the Aransas Project, said the group is disappointed, and is still evaluating the ruling. The group has 14 days to decide if it wants the 5th Circuit to rehear the case, and 90 days to appeal to the U.S. Supreme Court.

The court ruled the regulatory agency could not be held responsible, Irvine said, but backed the science presented by the Aransas Project. This could allow for another entity to be held legally responsible for the cranes’ death, he added.


Plushnick-Masti can be followed on Twitter at https://twitter.com/RamitMastiAP

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