By David Sikes
CORPUS CHRISTI - The U.S. Supreme Court announced Monday it has denied a petition to reopen a case involving the deaths of 23 endangered whooping cranes, according to Houston environmental attorney Jim Blackburn, who filed the petition as lead counsel in a lawsuit against the state over the deaths.
No explanation was given, Blackburn said.
This stems from a 2010 lawsuit filed by The Aransas Project, a Rockport-based nonprofit group of environmentalists, business owners, anglers and conservationists who advocate responsible water management. The group in its lawsuit accuses the Texas Commission on Environmental Quality along with the Guadalupe-Blanco River Authority of withholding freshwater meant to nourish the San Antonio Bay estuary that, in turn, nourishes the only wild flock of whooping cranes during their winter stay in Texas.
In 2013, Senior U.S. District Judge Janis Graham Jack upheld the group’s claim. In a 124-page opinion, she wrote that the state was at least partially to blame for the deaths in violation of the Endangered Species Act. That decision was overturned by the 5th Circuit Court in New Orleans, which disagreed fully with Jack’s ruling, claiming the die-off was not foreseeable as a result of the state’s water policy.
This, Blackburn said, makes the legal effort worthwhile despite the Supreme Court’s refusal to take the case because the state can never again claim to be unaware of the potential consequences of withholding freshwater from Texas bays and estuaries.
“We knew this petition was a bit of a long shot,” he said. “But we did a lot of good in the long run. Now everyone in Texas is on notice that there is an overriding federal interest in freshwater inflows under the Endangered Species Act. This fight over freshwater inflows, blue crabs, whooping cranes and the ecological health of our bays and estuaries has only just begun.”
The TCEQ has vigorously denied the lawsuit’s initial premise that it played a role in the crane deaths. A commission spokesman suggested the lawsuit was an unconstitutional attempt to use the Endangered Species Act as cover for rewriting the Texas Water Code.
“We feel that this legal ruling validates earlier court decisions that were decided in Texas’ favor, and shows that the state does adequately regulate stream flows, even in times of extreme drought,” said TCEQ Commissioner Toby Baker.
Blackburn said the lawsuit and specifically Jack’s ruling will indeed influence how Texas water is allocated, particularly during drought. Even overturned, this is powerful, he said.