Arguments presented Aug. 8 before the 5th U.S. Circuit Court of Appeals could determine the future welfare of a flock of whooping cranes. They might also determine the outcome of a constitutional debate regarding when a federal law — such as the Endangered Species Act — permits a federal court to order a state agency how to act.

At the hearing, James "Jim" Blackburn, Jr. represented a non-profit coalition that seeks to protect water rights for a flock of those 4-foot-tall, spindly legged, white birds. The whooping cranes fly each year from Canada to the Texas Gulf Coast for winter refuge and the federal government identifies them as an endangered species.

Blackburn's client, known as The Aransas Project (TAP), filed a complaint against the Texas Commission on Environmental Quality (TCEQ) and its officials seeking to have the state agency distribute water rights according to a plan that would accommodate the bird's needs. The case, The Aransas Project v. Bryan Shaw, et al., has provoked tremendous interest, evidenced by the friends of the court briefs filed in the 5th Circuit case by 37 parties, including other environmentalists groups, cities, and other states' farm agencies.

On March 11, Blackburn's client had won an initial round in the litigation [See " Litigator of the Week: A Whooping Victory," Texas Lawyer, March 25, 2013, page 11.] when a federal judge issued a favorable memorandum opinion and verdict. In that 124-page ruling, the judge found that TCEQ officials were responsible for the deaths of 23 of whooping cranes. According to the ruling, TAP had alleged that the state agency officials 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" and 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.

But on March 26, the TCEQ defendants won from the 5th Circuit an emergency stay of the district ruling.

At the Aug. 8 hearing, a 5th Circuit panel included Judges Edith H. Jones and Jerry E. Smith, and Senior Judge Emilio M. Garza. In its brief filed May 31, TAP had argued that the appellate panel should remove the emergency stay and uphold the district's ruling. That "court's remedy in this case utilized a Congressionally sanctioned process," the TAP brief argued, noting that such a process has "been used successfully in Texas for other endangered species and water resources, to share water and to creatively balance competing needs — parties to this very lawsuit have been involved in them." At the hearing, Blackburn told the 5th Circuit panel that the flock now existed of 257 birds but "1,000 is the goal for recovery."

At the same hearing, Jonathan Mitchell, the solicitor general for Texas, represented and argued for the TCEQ defendants, who seek to have the district court order reversed. Mitchell told the 5th Circuit panel that the link between water diversions, that the plaintiff sought to have the regulatory agency stop, and the deaths of whooping "was too attenuated" to be approximate causation. In a brief filed June 17, the TCEQ defendants had argued that the plaintiffs were asking the federal court to "commandeer" the state agency.

"Federal statutes may regulate the behavior of state officials just as they regulate the behavior of any other person, but they cannot control how state governments regulate their citizens," the TCEQ defendants state in their brief, adding, "[T]he plaintiff cannot possibly escape the fact that its interpretation of the Endangered Species Act gives rise to serious constitutional doubts."

Also, at the Aug. 8 hearing, the Guadalupe-Blanco River Authority, an intervenor defendant in the case, was represented by Aaron Streett, a partner in Baker Botts' Houston office. In a brief filed May 2, the Guadalupe-Blanco River Authority had argued, along with two other defendant intervenors, that the district court's ruling "disrupts Texas's regulatory efforts to establish a coherent water policy, a state interest of paramount importance." Streett stressed that same point at the hearing.

After the hearing, Blackburn described the proceedings as "intense," and Streett said the case was "challenging" because of "it's very large science intensive record." Mitchell declined to comment.

Neither Blackburn nor Streett want to predict the outcome of the arguments before the 5th, nor would they predict if their clients would appeal an adverse ruling.