© 2013 The Texas Lawbook.
By Natalie Posgate
Staff Writer for The Texas Lawbook
The U.S. Court of Appeals for the Fifth Circuit on Tuesday granted the emergency motions by Texas officials and large energy business interests to stay last week’s sweeping ruling by U.S. District Judge Janis Graham Jack in the whooping crane case, The Aransas Project (TAP) v. Shaw.
Judge Jack’s opinion, which was issued on March 11 and revised on March 18, found the State of Texas responsible for violating the Endangered Species Act by causing the death of 23 whooping cranes during the winter of the 2008-2009 drought.
The district court’s ruling enjoined the Texas Commission on Environmental Quality (TCEQ) from issuing any water permits on the Guadalupe or San Antonio rivers and required TCEQ to seek an incidental take permit under the Endangered Species Act within 30 days.
The Fifth Circuit three-judge panel also granted TAP’s motion to expedite the appeal. Oral argument is scheduled to begin in August and the deadline for final reply briefs is in mid-June.
Solicitor General Jonathan Mitchell, who is representing TCEQ in the appeals court, filed a notice of appeal and motion for emergency stay to the Fifth Circuit last week – after Attorney General Greg Abbott’s original motion to stay was rejected March 15 in the district court.
The Guadalupe-Blanco River Authority has also joined forces with TCEQ in its appeal as a defendant-intervenor-appellant. Baker Botts is representing GBRA, with Austin environmental partner Molly Cagle as the lead attorney.
“The fact that the appeals court issued the stay and put in place the expedited order for the appeal indicates their interest in hearing the case,” said Bill West, GBRA general manager. “We’re very pleased to say the least.”
Jim Blackburn, the lead counsel for TAP, said he wasn’t too concerned by the granting of the state’s motion to stay because he was more focused on getting an expedited appeal.
“We believe we’ve got a case that should survive on appeal; we just have to get there,” he said. “The sooner we get a decision, the sooner we can start protecting the whooping cranes, if we’re successful.”
The 23 whooping cranes that died were nearly 10 percent of the species’ only self-sustaining wild population in the world. The Texas Gulf Coast is the birds’ home during the winter, and they travel up North in the spring. While they’re in Texas, the whooping cranes’ diets heavily consist of wolfberries and blue crabs, which thrive in a freshwater environment.
Judge Jack of Corpus Christi concluded in her 124-page ruling that the state caused an unlawful take on the whooping cranes because its water permitting system, combined with the drought, caused hyper-saline conditions, which in turn caused a shortage of the birds’ food supply and lack of freshwater.
After the news of the high 2008-2009 crane mortality, a group of environmentalists, local business owners, bird enthusiasts and others formed TAP to seek to correct mismanagement of the Guadalupe River Basin to help conserve the whooping cranes.
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