Appeals Court Rules Texas Not at Fault in Whooper Deaths

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Back in the 1940s, there were only 16 whooping cranes left in the world. The birds, hunted for their white feathers (used for ladies hats, of all things) and shot for sport, were on the brink of extinction, but they didn't go the way of the Dodo.

Instead, years of conservation efforts brought the last naturally migrating flock of birds back from the edge. Over the next 60 years, the birds survived, wintering on the Texas coast in the same spot they've flown to for centuries, and summering in Wood Buffalo National Park in Canada.

By 2008 the flock's numbers had swelled and the whoopers were one of the great success stories of endangered species. But that fall, just as the whoopers began to arrive in their winter home at the Aransas National Wildlife Refuge, Texas slid into the grips of a drought. The Texas Commission on Environmental Quality allowed permits that cut off water from flowing into San Antonio and Aransas bays and the wolfberries and blue crabs the birds ate grew scarce.

At least 23 birds in the flock died that winter, the largest number of birds lost since conservation efforts started. The deaths kicked off initial outrage from environmentalists that eventually became a lawsuit, filed in 2010 by the Aransas Project, a coalition of local environmental organizations, against the TCEQ.

The case worked it's way through the court system and last year U.S. District Judge Janis Jack (kind of surprisingly) found that the state was at fault for not making sure enough fresh water flowed down the Guadalupe and San Antonio rivers. But more than a year after Jack ruled the state was responsible for the deaths of at least 23 whooping cranes in 2008, the Fifth Circuit Court of Appeals has overturned the ruling. On Monday, the court announced that the state wasn't at fault because the TeCEQ and company couldn't have known that issuing permits to draw water from San Antonio and Aransas bays in the middle of a drought would make the bays saltier and hurt the endangered birds.

The TCEQ, the state agency that got most of the blame from Judge Jack last year, sent Hair Balls a statement, rejoicing in the victory. "The State of Texas is pleased to have its position vindicated by the Fifth Circuit Court of Appeals," TCEQ Chairman Bryan Shaw stated. "TCEQ remains committed to protecting the needs of the environment as part of its holistic evaluation of requests to appropriate state water. The initial decision of the district court would have had drastic implications for water availability throughout the state."

That last bit, of course, is what it's really all about, because the state officials didn't want to be held responsible for federal endangered species and they certainly didn't want anyone telling them how to allocate the state water.

This isn't the end of the line for the whooping crane case. Houston environmental lawyer Jim Blackburn said they are by no means done pursuing the case. "[This is] not the end by any means. Many options. For a loss, there are aspects of a win here," Blackburn told Hair Balls.

Blackburn didn't elaborate on what the options are, or how this is a win, but there's only one court that hasn't looked at the case yet - the Supremes.

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