Group Can Keep Fighting for Whooping Crane

Article from Court House Service –

Thursday, December 08, 2011Last Update: 3:40 PM PT

Group Can Keep Fighting for Whooping Crane


(CN) – A federal judge refused to rule on claims that Texas is threatening the existence of whooping cranes by allowing diversion of the birds’ freshwater source. In a March 2010 federal complaint, The Aransas Project (TAP) claimed that mismanagement in the Texas Commission on Environmental Quality and the South Texas Watermaster has brought the whooping crane to the brink of extinction, with 23 birds dying in the harsh 2008-09 winter.

By the end of the season, the Guadalupe Basin crane population had allegedly declined to 247. TAP links the loss of birds in the basin to the diversion of freshwater from the Guadalupe and San Antonio Rivers.

Both sides, as well as intervening defendant Guadalupe-Blanco River Authority, moved for summary judgment, but Senior U.S. District Judge Janis Graham Jack roundly rejected the motions Monday.

Though Jack refused to grant TAP’s motion for partial summary judgment on standing, she also held that the environmentalists’ complaint survived its adversaries’ challenges. Jack devoted a section of her order to determining whether the commission could be held liable for water-diversion activity conducted by third parties. “Plaintiff has alleged that the TCEQ defendants are responsible for water permitting and water diversions from the waterways at issue, and the increased diversions have left less water for the cranes, resulting in a taking,” Jack wrote, abbreviating the commission defendant’s name. “This type of causation is sufficient for an ESA suit challenging governmental regulation,” she concluded.

Regulatory agencies like the TCEQ can be held responsible for harming an endangered species through its regulations, according to the 45-page order. “The court recognizes that ‘a governmental third party pursuant to whose
authority an actor directly exacts a taking of an endangered species may be deemed to have violated the provisions of the ESA,’ specifically the ‘taking’ provision in ESA Section 9,” Jack wrote.”The court concludes that plaintiff provides enough evidence of a ‘taking’ of whooping cranes, both in terms of deaths and non-fatal harm, such as malnourishment, to survive a motion for summary judgment,” she added.

The judge concluded by disagreeing that the U.S. Supreme Court’s holding in Burford v. Sun Oil required her to dismiss. That 1943 decision blocked a challenge to oil drilling that the Texas Railroad Commission had approved.