© 2014 The Texas Lawbook.
By Natalie Posgate – (December 17) – The U.S. Court of Appeals for the Fifth Circuit has denied a request to reconsider its previous reversal of a South Texas judge who found that the State of Texas was liable for killing 23 endangered whooping cranes.
The 11-4 opinion comes after the Fifth Circuit found in June that U.S. District Judge Janis Graham Jack failed to adequately determine in her 2013 ruling whether the state could have foreseen that its actions would have led to the whooping crane deaths.
Environmental advocacy group the Aransas Project originally brought the lawsuit, which claimed that the death of the 23 whooping cranes was a result of poor water management practices made by the Texas Commission of Environmental Quality, Guadalupe-Blanco River Authority and other state water supply leaders during the 2008-2009 drought.
Jim Blackburn, who represents the Aransas Project, said that while he was disappointed in Monday’s decision, he was satisfied by the descent and will seek review by the Supreme Court of the United States.
In his dissenting opinion, Fifth Circuit Judge Edward Prado said he disagreed with Monday’s majority decision because he thought it “independently weights facts to render judgment in violation of fundamental principles of federal law,” and the U.S. Supreme Court has reversed Fifth Circuit decisions in the past for doing so.
“If uncorrected by this court en banc or the Supreme Court, 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,” Prado wrote in his 10-page dissent. “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.”
The Texas Attorney General’s Office represents the TCEQ. Hunton & Williams represented the GBRA at the trial level, while Baker Botts is handling the appellate matters.
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