James B. Blackburn Jr. and his five-lawyer team won a water-rights victory benefitting a flock of whooping cranes that fly each year from Canada to the Texas Gulf Coast for winter refuge. But the defendants have sought an emergency stay from the 5th U.S. Circuit Court of Appeals.

On March 18 in an amended final judgment, U.S. District Judge Janis Graham Jack of the Southern District of Texas in Corpus Christi ruled in favor of Blackburn’s client, The Aransas Project (TAP). TAP is a nonprofit alliance of citizens, organizations, businesses and municipalities that sought injunctive relief for the 4-foot-tall, spindly legged, white birds.

Jack based her final judgment on her March 11 memorandum opinion and verdict in The Aransas Project v. Bryan Shaw, et al. In that 124-page ruling, Jack found that the Texas Commission on Environmental Quality, (TCEQ), the state and agency officials are responsible for the deaths of 23 of those whooping cranes. The federal government categorizes the birds as part of an endangered species and, according to the March 11 ruling, only 500 exist worldwide.

"[U]p until this litigation, the bay and the birds had no rights recognized by the state of Texas," says Blackburn, a partner in Austin’s Blackburn Carter.

TAP alleged that the defendants had violated §9 of the Endangered Species Act (ESA), 16 U.S.C. §1531 et seq., "by failing to properly manage freshwater inflows into the San Antonio and Guadalupe bays during the 2008-2009 winter . . .," according to Jack’s March 11 ruling.

Jack writes in that same ruling that TAP "maintains that the TCEQ defendants’ water management practices during 2008-2009, combined with the severe drought, drastically modified" the birds’ Texas home, making it "hyper-saline," thereby reducing the flock’s fresh drinking water and food sources, including wolfberries and blue crabs.

TCEQ defendants argued, among other things, "that they are essentially powerless to regulate water resources in the manner [the plaintiff] suggests," Jack writes.

Having rejected that TCEQ argument, Jack orders the defendants in her March 18 amended final judgment to stop issuing water permits and to have the TCEQ devise a plan to protect the whooping crane flock. The judge writes that TAP should be awarded an unspecified amount of attorney fees. Blackburn has not yet calculated the amount of fees his client will seek.

But the fight’s not over: The Texas Attorney General’s office, which represents the state, the TCEQ and agency officials named as defendants, filed on March 20 a motion in the 5th Circuit seeking an emergency stay of Jack’s ruling. The AG’s office also pledged to appeal the judge’s ruling if necessary. According to a press release issued by Attorney General Greg Abbott’s office, the ruling "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." Lauren Bean, a spokesperson for the AG’s office, says the 5th Circuit Court has asked TAP to respond to the defendants’ motion for an emergency stay by March 25.

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