In Another Texas Vs. Endangered Species Battle, Texas Wins Again

Every winter, the world's only flock of wild whooping cranes flies into Texas and stays along the Texas Gulf Coast, using water near the Aransas Pass. Maybe one day in the future, Greg Abbott can require the whopping cranes to obtain a permit before they take advantage of our state's diminishing natural resources. In the meantime, state officials are at least enjoying recent legal victory against a group that has been suing to protect the birds. Texas 1, majestic whooping cranes 0.

In 2008, 23 whooping cranes died in Texas,or about 8 percent of the remaining population. Coincidentally, there was a drought going on and not much of a plan by the Texas Commission on Environmental Quality to ensure that the whooping cranes would get the water they needed to survive in their winter habitats. This lead a nonprofit called the Aransas Project to conclude that TCEQ was directly responsible for killing those 23 whooping cranes, and the group sued the state agency under the Endangered Species Act.

Last year, a Texas judge agreed that the TCEQ was responsible for preventing those bird deaths, but that decision got quickly overturned by judges from the 5th U.S. Circuit Court of Appeals, and on Monday they reaffirmed their decision. To paraphrase the majority opinion, the judges have basically said that you can't prove the TCEQ killed those birds, so the argument that Texas has whooping crane blood on its hands is too harsh.

Does Monday's ruling mean that more whooping cranes are going to die this winter? Aransas Project attorney Jim Blackburn says there's no way to be certain anymore, because the U.S. Fish and Wildlife Service has stopped counting each bird individually like it used to and now tracks the birds with a less-precise survey method. "We feel like [that was] a political decision rather than a sound science decision," he says. "The Fish and Wildlife Service chose to seize that practice after we filed our lawsuit, and I think there's a connection." (A statement on the UFWS website defends the agency's to decision stop counting the birds: "Counting each individual bird was easier when the wild population of whooping cranes was small, but the population has grown on average 4.6% every year").

The whooping cranes join a long list of endangered species that have tried and failed to impose restrictions on Texas' booming economy with a bunch of cumbersome endangered species demands. Last year, for instance, many people complained that Texas wasn't doing enough to protect the endangered lesser prairie chickens, so the U.S. Fish and Wildlife Service came up with a voluntary plan to save the chickens that preservationists angrily described as "a wink and a nod with no accountability."

The Aransas Project's Blackburn remains optimistic, pointing to the minority of 5th Circuit judges who dissented to Monday's ruling. He says his group's next step will be an appeal to the Supreme Court.

Send your story tips to the author, Amy Silverstein.

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