Federal Judge in Texas Protects Whooping Cranes in Lawsuit

In Texas, Senior U.S. District Judge Janis Jack has issued an injunction restricting State officials from issuing water use permits that could further endanger the native whooping crane.  Finding that water use permits issued by the Texas Commission on Environmental Quality (TCEQ) during a drought had violated the Endangered Species Act (ESA) by resulting in the death of several cranes, Judge Jack restricted the Commission’s authority until the State both provided assurances that the cranes would be protected, and developed a Habitat Conservation Plan for the region.

Details of the Proceedings

Pictured, the whooping crane is an endangered bird that is native to estuaries the region of Texas fed by the Guadalupe and San Antonio rivers.  According to representatives from the Aransas Project, an environmental conservation organization protecting the Guadalupe River, the TCEQ’s failure to monitor its water management practices during the winter of 2008 – 09 led to the death of 23 cranes, and the disappearance of 34 more. 

Seeking relief in federal court, the Aransas Project argued the action jeopardized the world’s only naturally migratory whooping crane flock in violation of the ESA, and provided a number of scientific experts to support its position.  The TCEQ provided its own experts who attempted to discredit the Aransas Project's claims by downplaying the effect water management had on the cranes.  After a contentious legal battle, Judge Jack agreed with experts provided by the plaintiffs, and issued her ruling in a 124-page opinion that is, at times, highly critical of Texas officials and the experts the State Commission provided.

Federal Involvement in State Activities

While the whooping cranes seem to be the big winners, Judge Jack’s decision has been celebrated by animal rights activists and environmentalists who laud the court for taking a significant step in creating a federal presence in the sensible management, use, and conservation of water.  Unlike most eastern states, in which water users are governed by “reasonable use” laws, western states must rely on their governing bodies to appropriate water usage.  With water much more scarce in the west, State governments create commissions like the TSEQ to monitor water usage to best meet the needs of businesses, citizens, and the environment who all compete for a limited supply.

Typically, States have the right to control water usage within their own boarders without Federal interference.  However, as this case reminds us, State law and policy is subservient to Federal law if and when the two should directly contradict each other.  Finding conflict in this case, Judge Jack determined that the Texas Commission on Environmental Quality did not have legal authority to take action that was in violation of Federal law, in this case the Endangered Species Act.  Whether or not this ruling has broader implications on water usage in the western United States remains to be seen, however, it is possible  that other environmental groups will be encouraged to either pursue litigation against State agencies who they feel are acting in direct conflict with Federal law, or to make a strong push for legislation that takes a more environmentally sensitive approach to western water usage.

Potential for an Appeal

Representatives from the TCEQ have indicated that the commission will not take the ruling lying down.  Arguing that Judge Jack’s decision was an “unconstitutional attempt to use the [ESA] as a cover for rewriting the Texas Water Code,” a TCEQ spokesmen hinted at the legal basis for a possible appeal.  While Federal law trumps State law when the two contradict, it is not permissible for the Federal Government to otherwise dictate how States govern internal affairs.  Although water management  often intersects with areas of the law under Federal authority, the State of Texas has the right to control water usage within its own borders  and it is entirely possible that Judge Jack overstepped her bounds on this matter.  Whether or not an appeal is filed remains to be seen, but for now, whooping cranes and their enthusiasts can sleep safely knowing their habitat is protected.

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