Aransas Project v. Shaw, Case No. 2:10–cv–075.

Citation930 F.Supp.2d 716
Decision Date11 March 2013
Docket NumberCase No. 2:10–cv–075.
PartiesThe ARANSAS PROJECT, Plaintiff, v. Bryan SHAW, et al., Defendants.
CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas

OPINION TEXT STARTS HERE

James B. Blackburn, Jr., Charles William Irvine, Mary B. Conner, Blackburn Carter PC, Charles Patrick Waites, Johnson Deluca Kurisky & Gould, P.C., David Alfred Kahne, Attorney at Law, Houston, TX, John Jeffery Mundy, The Mundy Firm PLLC, Austin, TX, for Plaintiff.

John R. Hulme, Cynthia Woelk, David Marshall Coover, III, Jonathan Franklin Mitchell, Office of the Attorney General of Texas, Mark L. Walters, Assistant Attorney General, Kenneth R. Ramirez, Law Offices of Ken Ramirez, Rachel L. Noffke, Deshazo Nesbitt, Austin, TX, for Defendants.

MEMORANDUM OPINION AND VERDICT OF THE COURT

JANIS GRAHAM JACK, Senior District Judge.

This case was tried to the Court over an eight-day period on December 5, 6, 7, 8, 9, 13, 14, and 15, 2011.1 As required by Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following findings of fact and conclusions of law thereon.2

I. INTRODUCTION.

In the annals of conservation, the return of the Whooping Crane from the brink of extinction is one of the most fabled stories. In the 1940's, less than fifteen of these remarkable birds—the tallest in North America and the rarest species of crane in the world—remained. With the creation of wildlife refuges and other conservation efforts, the population of the birds has slowly risen to, including both those in captivity and those not in captivity, to around 500 birds. At issue here is the threat of extinction to the non-captivity population of around 300. However, the “whoopers” are still at risk, as development and environmental issues continue to threaten their habitat.

This case concerns the world's only self-sustaining, wild Whooping Crane population, known as the “AWB” flock,3 and its winter home in South Texas at the Aransas National Wildlife Refuge (the “Refuge”), and surrounding estuarine areas that comprise the AWB cranes' critical winter habitat. 4 The AWB cranes normallybegin to arrive at their winter habitat in late October, and depart in early April of the following year.

The Aransas Refuge is located midway along the Texas Gulf coast, about 140 miles south of Houston and 50 miles north of Corpus Christi.5 The cranes' wintering grounds are comprised of approximately 9,000 hectares of salt flats on the Refuge itself and also on adjacent islands, including the Blackjack Peninsula, San Jose Island, and Matagorda Island.6 The area is bordered on the east by the Gulf of Mexico, receiving daily impulses of salt water with the changing of the tides.

The Refuge receives freshwater inflows from primarily two river sources, the San Antonio and the Guadalupe, each located to the north and slightly west of the area.7 The San Antonio river flows into the Guadalupe river system, and the Guadalupe river flows directly into the Refuge, emptying into the San Antonio bay. The area where the freshwater enters the Refuge is referred to correctly as the “Guadalupe estuary,” but it is known also as the “San Antonio bay.” 8 The San Antonio and the Guadalupe river systems emerge from underground springs near San Antonio and run 250 miles southeast where they join together just before entering the San Antonio bay and flow into the AWB flock's winter habitat, that extends slightly north of the Refuge. 9 These freshwater inflows come from a combination of spring flows and rainfall. Id.

Whooping Cranes face extinction. Indeed today, it is estimated that only 500 Whooping Cranes exist worldwide. In 1967, the United States listed the Whooping Crane as threatened with extinction, 32 Fed.Reg. 4001 (Mar. 11, 1967), and in 1970, they were listed as endangered, 35 Fed.Reg. 16047 (Oct. 13, 1970). In 1973, both of these classifications were “grandfathered” into the Endangered Species Act. 16 U.S.C. § 1531 et seq., 87 Stat. 884.

Beginning in 1950, the United States Fish & Wildlife Service (USFWS) employed aerial surveys to provide an annual census of how many AWB cranes arrived at the Refuge in the fall, and how many departed in the spring. Mr. Tom Stehn, a USFWS biologist, worked at the Refuge for over 29 years, and personally developed and implemented a method to count the individual birds of the AWB flock utilizing the cranes' well-documented behaviors of site fidelity, site tenacity, and crane territoriality.10 Because specific birds returned to their specific locations, Mr. Stehn was able to map their territories and to confirm their presence or absence with weekly aerial surveys.11 Based on his intimate knowledge of the AWB crane and his mapping of their territories, Mr. Stehn concluded that, at the start of the 2008 winter season, the AWB flock had grown to its peak number of 270 birds, plus or minus 2 to 3 percent.

During the 20082009 winter, there was a severe drought. As the winter progressed, the AWB cranes began to demonstrate unusual behavior. For example, parents would deny their juveniles food, and the birds began venturing out of their specific territories in search of food and fresh water. When the cranes first arrive at the Refuge, it is normal for the parents to feed the juvenile. The juveniles' beaks are soft and tender, and it is necessary for the parent to break the shell and feed the crab to the begging juvenile. As the winter progresses, the parent pulls the crab from the water, kills it, and leaves it for the juvenile. During the 20082009 winter, Dr. Chavez–Ramirez observed a parent aggressively pushing his juvenile away from a crab that had been caught. He had never seen a parent deny food to a begging juvenile. Such behavior indicates that the parent was under food stress. The birds' behavior was so alarming that Mr. Stehn contacted Dr. Chavez–Ramirez, a biologist with two decades of field research on the AWB cranes and a member of the International Whooping Crane Recovery Team, and asked him to visit the Refuge and observe the cranes. Dr. Chavez–Ramirez was equally troubled and concerned with his observations of the cranes' behavior. Both he and Mr. Stehn observed that the lack of freshwater inflows had increased salinities across the Refuge. These hyper-saline conditions, verified by field measurements, led to a decrease in blue crabs and wolfberries, the staple diet of the AWB flock. This food shortage led to bird emaciation, stress behavior, and an over-all decline in bird health. That is, without proper freshwater inflows, the AWB's critical habitat had been thrown out of balance, with ramifications up and down the food chain. That winter, at least 23 AWB cranes, or 8.5% of the AWB flock, died at the Refuge. Another 34 birds that left Texas in spring, failed to return in fall.

After news of the high crane mortality in the 20082009 winter became known, certain environmentalists, local coastal business owners, bird enthusiasts, and others formed “The Aransas Project,” (“TAP”), a Texas nonprofit corporation. The TAP members have a direct interest in the AWB Whooping Cranes and the ecological health of the San Antonio, Carlos,Mesquite, and Aransas bays that connect to the Refuge.

The State of Texas owns its surface water, and this includes the water in the Guadalupe and the San Antonio River systems. Under Texas law, freshwater capture and use is regulated by the Texas Commission on Environmental Quality (TCEQ), a State agency. Through its permit process and regulatory powers, the TCEQ can affect the availability of freshwater to users along the river system.

Prior to filing this lawsuit, TAP petitioned the TCEQ for a water permit to require a certain amount of freshwater to remain instream in the Guadalupe and San Antonio river systems to ensure that sufficient amounts of freshwater reached the Refuge and surrounding areas adjacent to the San Antonio bay that comprise the critical habitat of the AWB cranes. TAP's permit request was denied, and on December 7, 2009, TAP gave notice of its intent to sue.

On March 10, 2010, TAP filed this lawsuit alleging that the TCEQ defendants had violated Section 9 of the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., by failing to properly manage freshwater inflows into the San Antonio and Guadalupe bays during the 20082009 winter, causing an unlawful “take” of AWB cranes. (D.E. 1). TAP maintains that the TCEQ defendants' water management practices during 20082009, combined with the severe drought, drastically modified the AWB cranes' critical habitat making it hyper-saline. In turn, the hyper-saline conditions caused a reduction in the availability of wolfberries and blue crabs, the cranes' primary food resources, as well as in fresh drinking water. The lack of food and freshwater caused the cranes to become emaciated and to engage in stress behavior. Emaciation led to increased illness and disease susceptibility, and the cranes' unusual stress behaviors, including leaving the safety of their site territories, contributed to increased predation. In total, the adverse modification of the cranes' critical habitat effectively caused the death of at least 23 Whooping Cranes that winter season, constituting a “take” under the ESA.

TAP named as defendants TCEQ officials Bryan Shaw, Buddy Garcia, Carlos Rubinstein, and Mark Vickery, and also, the South Texas Watermaster, Al Segovia.12 The Guadalupe–Blanco River Authority (GBRA) was granted leave to intervene. (D.E. 31, 35). Numerous other parties sought leave to intervene: Union Carbide Corporation (D.E. 45); Texas Farm Bureau (D.E. 51); Texas Chemical Council (D.E. 53); San Antonio Water System (D.E. 59); San Antonio City Public Service (D.E. 70); and the San Antonio River Authority (SARA) (D.E. 110). The Court granted Texas Chemical Council's motion to intervene, but denied the others.13 (D.E. 86, 112). On appeal, the Fifth Circuit allowed the intervention of the SARA, but affirmed the denial of intervention of the...

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4 cases
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    • U.S. Court of Appeals — Fifth Circuit
    • 15 Diciembre 2014
    ...cause. The trial court cited Sweet Home 's proximate cause requirement exactly twice in a 124–page opinion. Aransas Project v. Shaw, 930 F.Supp.2d 716, 727, 786 (S.D.Tex.2013) (stating that ordinary requirements of proximate causation apply). The court concluded in the very next paragraph t......
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    • U.S. Court of Appeals — Fifth Circuit
    • 30 Junio 2014
    ...The trial court here cited Sweet Home 's proximate cause requirement exactly twice in a 124–page opinion. Aransas Project v. Shaw, 930 F.Supp.2d 716, 727, 786 (S.D.Tex.2013) (stating that ordinary requirements of proximate causation apply). Without even mentioning concepts of remoteness, at......
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    ...more abstract than in Seattle Audubon .California River Watch argues that a similar injunction was granted in Aransas Project v. Shaw, 930 F.Supp.2d 716, 775 (S.D.Tex.2013), where Judge Janis Jack ordered the Texas Commission on Environmental Quality to seek an incidental take permit and su......
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    ...and two of the three officers who signed reports in question, pled guilty to falsifying police reports. Aransas Project v. Shaw , 930 F.Supp.2d 716 (S.D.Tex., 2013). Factors that may indicate a lack of trustworthiness, for purposes of the application of the exception to the hearsay rule for......
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    ...and two of the three officers who signed reports in question, pled guilty to falsifying police reports. Aransas Project v. Shaw , 930 F.Supp.2d 716 (S.D.Tex., 2013). Factors that may indicate a lack of trustworthiness, for purposes of the application of the exception to the hearsay rule for......
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    ...and two of the three officers who signed reports in question, pled guilty to falsifying police reports. Aransas Project v. Shaw , 930 F.Supp.2d 716 (S.D.Tex., 2013). Factors that may indicate a lack of trustworthiness, for purposes of the application of the exception to the hearsay rule for......
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    ...and two of the three officers who signed reports in question, pled guilty to falsifying police reports. Aransas Project v. Shaw , 930 F.Supp.2d 716 (S.D.Tex., 2013). Factors that may indicate a lack of trustworthiness, for purposes of the application of the exception to the hearsay rule for......
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