Judge Finds State at Fault for Whooping Cranes' Deaths, But Abbott Seeks Stay

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In the mid-1940s, only 16 Whooping Cranes remained in the wild. Hunted for their cream-colored plumage, shot and killed for pure sport, the largest bird in North America stood all but extinct. Presaged by Passenger Pigeons and the Carolina Parakeet, it seemed that American frontiersmen would once more eliminate one of the avian staples of the new continent.

Sixty years later, as the 2000s began their close, the population of Whooping Cranes stood a bit larger. Nearing a wild migratory population of 300, it seemed that a combination of state- and federal efforts had helped Whooping Cranes rebound in one of the most remarkable conservation efforts yet seen.

With a record drought sapping Texas in 2008-09, however, the birds' diet of blue crabs and wolfberries dried up. As the heat continued, as the crabs and berries continued to disappear before the birds had a chance to eat, at least 23 Whooping Cranes -- nearly 10 percent of the only self-sustaining migratory flock remaining -- perished. It was the largest die-off since conservation efforts first began. And last week, a federal judge in Corpus Christi finally found who was to blame.

In a somewhat unexpected turn, US District Judge Janis Jack found the state of Texas, with an especial focus on the Texas Commission on Environmental Quality, guilty for the deaths of the birds. "As the US Supreme Court has held," Jack wrote in her decision, "Congress has accorded the protection of endangered species the highest of priorities." Thus, as the state failed to take emergency measures to protect the scant Whooping Crane population -- measures entirely within its power, it would seem -- Jack levied blame on the state.

In her ruling, Jack ordered the state to craft new methods of providing necessary freshwater flows to the cranes' bays. Additionally, she barred providing any water permits until such methods are devised.

"I feel probably about as good as I've ever felt from the standpoint of the conclusion of a legal case," Jim Blackburn, the lead counsel for the plaintiffs, told Hair Balls. "The judge was as good as we could have hoped for. She paid attention, and took time to frankly give this the time and attention it deserved. My hats off to her."

Blackburn represented a coalition of local environmental organizations, known collectively as The Aransas Project. Claiming that the state failed to properly monitor freshwater flows from the Guadalupe and San Antonio Rivers, the coalition participated in an eight-day trial in late 2011.

In a statement sent to Hair Balls, Bryan Shaw, head of TCEQ, disputed the scientific evidence presented within the case. "I am disappointed with the outcome of the case, but not deterred. The science and law will prove out in the end."

Blackburn, who said he'd spent his first wedding anniversary visiting the cranes in 1972, chuckled when heard of Shaw's disputation, noting that TCEQ had "put out no scientific evidence" during trial.

"This ruling makes a clear statement that the actions of state of Texas killed Whooping Cranes," Blackburn added. "It's not a retroactive lawsuit -- we're not seeking penalties, but changes in future. The implication is that Texas needs to improve methods of getting water to San Antonio and Aransas Bay, and I think that can be done certainly in reasonable and creative way. All it takes is a little willpower, and a positive attitude on part of the state."

As it is, there's little way to tell whether subsequent droughts have had as distinct and deleterious effect on the birds' population since the '08-'09 die-off. According to Ron Outen, TAP's regional director, the birds' population is no longer monitored by individual fly-overs, but through statistical extrapolation.

"It is the case we alleged death of 23 whopping cranes, but ... that 23 is probably an underestimate," Outen told Hair Balls. "We don't know if the birds have responded."

Meanwhile, a consensus has emerged that the state will likely appeal the ruling. While Jack noted that TCEQ maintained powers to allow it to support the birds' population, Attorney General Greg Abbott said last Thursday that he would seek an emergency stay from the court's ruling.

"If the ruling is not stayed or overturned by a federal appeals court, it could cause severe economic harm to the State and impose drastic federal regulations on the farms, ranches and communities along the Guadalupe and San Antonio Rivers," read the AG's press release. "This astounding and far-reaching injunctive relief will impose irreparable harm on the State's economy and its drought-affected residents."

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