IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
THE ARANSAS PROJECT, Plaintiff, v. BRYAN SHAW, ET AL., Defendants.
§ § § § § § §
CIVIL ACTION NO. 2:10-cv-00075
PLAINTIFF THE ARANSAS PROJECT’S CONSOLIDATED RESPONSE TO POST-TRIAL BRIEFS
JAMES B. BLACKBURN, JR. Attorney in charge TBN 02388500 Southern District of Texas Bar No. 7416 CHARLES IRVINE TBN 24055716 Southern District of Texas Bar No. 675029 MARY B. CONNER TBN 24050440 Southern District of Texas Bar No. 1093200 BLACKBURN CARTER, P.C. 4709 Austin Street Houston, Texas 77004 713/524-1012 713/524-5165 (fax)
OF COUNSEL: Jeffery Mundy TBN 14665575 Southern District of Texas Bar No. 10632 The Mundy Firm PLLC 8911 N. Capital of Texas Highway, Suite 2105 Austin, Texas 78759 512/334-4300 512/334-4256 (fax)
OF COUNSEL: David A. Kahne TBN 00790129 Southern District of Texas Bar No. 17432 LAW OFFICE OF DAVID A. KAHNE P.O. Box 66386 Houston, Texas 77266 713/652-3966 713/652-5773 (fax)
Filed: May 9, 2012 Counsel for Plaintiff, The Aransas Project
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TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii
I. INTRODUCTION .................................................................................................................. 1
II. THE DEATH OF 23 WHOOPING CRANES AT ARANSAS IN 2008-2009 ...................... 2
A. Contrary to Defendants’ arguments, the great weight of evidence at trial demonstrated that 23 cranes died. ..................................................................................................................... 3
1. It is impossible that Mr. Stehn missed 23 birds. ............................................................. 3
2. Defendants’ fervent wish for 23 carcasses does not comport with what happens in the wild. ........................................................................................................................................ 7
3. Defendants’ theory that the dead birds from 2008-2009 “returned” the following year is simply wrong....................................................................................................................... 8
B. Defendants’ representations concerning the USFWS counts should be carefully scrutinized................................................................................................................................... 9
III. LEGAL STANDARDS ON PROOF AND CAUSATION.............................................. 12
A. The burden of proof is preponderance of the evidence..................................................... 12
B. The ESA uses ordinary requirements of proximate cause. ............................................... 12
C. Proximate cause may be proven with either direct or circumstantial evidence. ............... 13
D. Causation under the ESA may be either “indirect” or “deliberate.” ................................. 14
E. Habitat modification is an indirect take. ........................................................................... 15
F. Proof of a “population level effect” is not required in the Fifth Circuit, but even if it were, TAP easily meets this standard. ................................................................................................ 17
IV. RESPONSE TO ARGUMENTS ON CAUSATION ....................................................... 18
A. Defendants failed to rebut or to discuss, and therefore concede, the strong statistical correlation between low freshwater flows and high Whooping Crane mortality. .................... 19
B. TAP proved each of the elements required to demonstrate that TCEQ Defendants proximately caused a prohibited take. ...................................................................................... 21
1. The State Defendants have authority to regulate State-owned surface waters. ............ 21
a) Plain statutory text expressly grants TCEQ authority over water regulation and, therefore, the power to comply with the ESA................................................................... 22
b) Certificates of adjudication and permits expressly reserve TCEQ supervisory authority over diversions................................................................................................... 24
c) National Association of Homebuilders is inapposite................................................ 25
2. State regulation is the cause of reduced freshwater inflows. ........................................ 26
3. Water diversions affected salinities, which significantly modified habitat. ................. 28
i.
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4. Modified habitat resulted in reduced availability of blue crabs, wolfberries, and drinking water. ...................................................................................................................... 31
5. Modified habitat caused injury and death to the Whooping Cranes. ............................ 32
C. Defendants’ alternative explanations do not undercut TAP’s proof at trial. .................... 37
1. Speculation related to Crane mortality. ........................................................................ 38
2. Theories related to increased salinity............................................................................ 39
3. Theories related to decrease in wolfberry and blue crab abundance ............................ 40
4. Theories related to reasons Whooping Cranes leave territories.................................... 42
V. RESPONSE TO ARGUMENTS ON REMEDY.................................................................. 43
A. TCEQ powers support use of an HCP and, Defendants’ protests notwithstanding, allow regulation of water use under permits, to protect Cranes. ........................................................ 44
B. TCEQ’s heads-in-the-sand approach deserves no deference. ........................................... 46
C. A judgment by this Court in TAP’s favor would not be “pointless.” ............................... 47
D. The TCEQ Defendants’ proposed remedies are by themselves insufficient. ................... 48
E. Ultimately, the TCEQ Defendants must comply with federal law. .................................. 48
VI. RESPONSE TO ARGUMENTS ON STANDING .......................................................... 49
VII. CONCLUSION................................................................................................................. 50
ii.
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TABLE OF AUTHORITIES
pageCASES
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995)...............................................................................................................12, 14
Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712 (Tex. 1990) ...................................23
Matter of Briscoe Enterprises, Ltd, 994 F.2d 1160 (5th Cir. 1993) .....................................12
Coalition for a Sustainable Delta v. McCamman, 725 F. Supp. 2d 1162 (E.D. Cal. 2010)..................................................................................17
Cold Mountain v. Garber, 375 F.3d 884 (9th Cir. 2004).......................................................14
Defenders of Wildlife v. EPA, 882 F.2d 1294 (8th Cir. 1989) ...............................................49
In re Enron Corp. Securities, Derivative & ERISA Litigation, 623 F. Supp. 2d 798 (S.D. Tex. 2009) ...................................................................................12, 13
Greenpeace v. Mineta, 122 F. Supp. 2d 1123 (D. Haw. 2000)..............................................16
Gutierrez v. Excel Corp., 106 F.3d 683 (5th Cir. 1997) ........................................................12, 13
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001)...........................................................48
Lower Colorado River Authority v. Texas Dept. of Water Resources, 638 S.W.2d 557 (Tex. App.—Austin 1982) ..........................................................................24
Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1067-68 (9th Cir. 1996)...................................13
Morris v. Jones, 329 U.S. 545 (1947)....................................................................................48
National Association of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007)...............................................................................................................21, 25
North Carolina Board of Education v. Swann, 402 U.S. 43 (1971) ......................................26
Pacific Rivers Council v. Brown, 2002 WL 32356431 (D. Or. Dec. 23, 2002) ....................26
Seattle Audubon Society v. Sutherland, 2007 WL 1577756 (W.D. Wash. 2007)..................26
Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir. 1976) .......................................................12
Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988) ....................................................13
Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991) ............................................................13
Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997) ......................................................................14, 49
Strahan v. Pritchard, 473 F. Supp. 2d 230 (D. Mass. 2007) .................................................14
TVA v. Hill, 437 U.S. 153 (1978)...........................................................................................46
Tex. Natural Res. Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368 (Tex. 2005)..................................................................................................22, 23
Texas Water Rights Commission v. Wright, 464 S.W.2d 642 (Tex. 1971)............................24
iii.
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Univ. Computing Co. v. Mgmt. Science Am., Inc., 810 F.2d 1395 (5th Cir. 1987) ...............19
Wackman v. Rubsamen, 602 F.3d 391 (5th Cir. 2010) ..........................................................13
Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979)...............................................................................................................26
Watts v. State, 140 S.W.3d 860 (Tex. 2004)..........................................................................44
STATUTES
U.S. CONST. art. VI, cl.2 ........................................................................................................23
16 U.S.C. § 1538(a)(1)(B) .....................................................................................................14
16 U.S.C. § 1539(a)(1)(B) .....................................................................................................1, 27
TEX. GOV’T CODE § 311.021 .................................................................................................43
Texas Water Code Title 2 ......................................................................................................23
Texas Water Code § 5.002.....................................................................................................22
Texas Water Code § 5.012.....................................................................................................23, 42
Texas Water Code § 5.012(a) ................................................................................................22
Texas Water Code § 5.013(a) ................................................................................................24
Texas Water Code § 5.015.....................................................................................................23
Texas Water Code § 5.101.....................................................................................................22
Texas Water Code § 5.102.....................................................................................................23
Texas Water Code § 5.102(a) ................................................................................................48
Texas Water Code § 5.105.....................................................................................................46
Texas Water Code § 5.119.....................................................................................................45
Texas Water Code § 5.120.....................................................................................................43
Texas Water Code § 11.021(a) ..............................................................................................44
Texas Water Code § 11.026...................................................................................................24
Texas Water Code § 11.027...................................................................................................45
Texas Water Code § 11.053(b) ..............................................................................................25
Texas Water Code § 11.147(b) ..............................................................................................47
Texas Water Code § 11.0235.................................................................................................44
Texas Water Code § 11.0235 (d-3)(2) ...................................................................................45
Texas Water Code § 11.327...................................................................................................24
OTHER AUTHORITY
50 C.F.R. § 17.3 .....................................................................................................................15
30 TEX. ADMIN. CODE § 304.21(C) ........................................................................................24
iv.
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I. INTRODUCTION
Testimony and exhibits during trial showed that the Whooping Crane—one of the rarest
birds on the planet—is in danger of being systematically driven back to the brink of extinction.
Contrary to the glib assertions that the Whooping Cranes are “not in real and immediate danger,”
D.E. 320 at 4, TAP’s witnesses repeatedly testified that the cranes are in fact in real and
immediate peril. Even GBRA witness, Dr. Michael Conroy, admitted that the Whooping Cranes
remain at risk of extinction. Tr. 119: 12-15 (Dec. 15). Winters of low inflows and unabated
TCEQ-authorized water diversions result in significant habitat modification and corresponding
higher winter morality.
In their closing brief, the TCEQ Defendants presented a litany of the same arguments
already overruled by this Court in orders on the motions to dismiss, to abstain and for summary
judgment. They claim that there is no cause of action against regulators—despite the unanimous
line of cases from this and other circuits holding that valid ESA claims exist against regulators.
Like the Intervenors, the TCEQ Defendants assert that TAP failed to prove causation—without
any mention of the wealth of expert scientific testimony heard during trial, causing Plaintiff to
wonder whether they understand what the science proves.
TCEQ Defendants challenge the Court by stating that, even if they are liable for an ESA
violation, a court-ordered remedy “would be pointless.” They say their activities are lawful, but
the language of Section 10 of the ESA forecloses any argument: Section 10 precisely speaks to
this circumstance when it allows the USFWS to issue an incidental take permit “if such taking is
incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C.
§ 1539(a)(1)(B) (emphasis added). Here, TCEQ actions authorizing water diversions are
“otherwise lawful activity” but they result in an incidental take under certain circumstances, i.e.,
the low flow years. Quite tellingly, TCEQ Defendants close by proposing three remedies they
1.
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“could” do, and might be willing to discuss implementing “one or more.” Those remedies are not
enough; the Whooping Cranes need the protection afforded by an Incidental Take Permit and a
Habitat Conservation Plan (“HCP”).
Defendant-Intervenors’ closing arguments focus exclusively on standing and causation.
They entirely ignore TAP’s powerful statistical evidence. On the underlying ecology, they
misrepresent trial testimony1 and willfully ignore vast portions of testimony and evidence. Their
mere speculation of an alternate theory at trial, without competent evidence to substantiate it,
does not undermine TAP’s overwhelming proof. TAP provided compelling evidence, which
certainly satisfies the preponderance of the evidence standard, that, due to unabated TCEQ-
authorized water diversions, the Cranes died when a lack of freshwater inflows modified their
habitat, reducing the availability of vital resources.
II. THE DEATH OF 23 WHOOPING CRANES AT ARANSAS IN 2008-2009
TAP presented compelling evidence establishing, beyond doubt, the deaths of 23
Whooping Cranes at Aransas in 2008-2009. This evidence consisted of the testimony of Mr.
Tom Stehn, the USFWS Refuge Biologist who has been conducting the aerial census and
determining mortality for 29 years; the testimony of two biologists, both members of the
International Whooping Crane Recovery Team; and the official documents of USFWS. Mr.
Stehn described his careful and systematic approach to determining winter mortality, and noted
that 23 was a “conservative number” for that winter because it did not include possible additional
subadult mortality. Tr. 149: 2-5 (Dec. 7); 322: 20 – 324: 17 (Dec. 6).
1 Throughout their brief, Intervenor-Defendants do not cite to line numbers in the transcripts, and do not cite to page numbers in the exhibits. Despite this, Plaintiff found many examples were the citations did not support Defendants’ propositions.
2.
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A. Contrary to Defendants’ arguments, the great weight of evidence at trial demonstrated that 23 cranes died.
In their brief, Defendants rely on three arguments: (1) Mr. Stehn somehow “missed” the
nineteen cranes during his aerial surveys; (2) without a necropsy, no-one knows how the
individual Crane died; and (3) the nineteen dead birds without a carcass must have been alive
because of the flock size the following year. As explained by several witnesses during trial, these
three theories are highly improbable, largely irrelevant, or simply wrong. Notably, Defendants
argue their speculative criticism without presenting even a single witness who had worked with
Mr. Stehn on the aerial census flights, and without presenting any eyewitness to testify about the
habitat conditions or Crane behavior during that terrible winter at the Refuge in 2008-09.
1. It is impossible that Mr. Stehn missed 23 birds.
Dr. Chavez-Ramirez, who flew with Mr. Stehn many times, repeatedly and emphatically
testified that it would be “almost impossible” that Stehn missed, overlooked or simply failed to
detect 23, or even 15 cranes in 2008-2009. Tr. 59:12 – 60:21 (Dec. 6). Mr. Stehn buttressed his
own conclusions by being able to recall the exact circumstances of each of the 23 mortalities he
determined occurred in 2008-2009.2 See Tr. 15:7 – 24:16 (Dec. 7) (going through each Crane
death); PX377. Mr. Stehn did not “miss” 23 Cranes.
Despite this, Defendants implausibly call USFWS’s official mortality findings “phantom”
deaths, D.E. 320 at 2, and urge this Court to speculate that they were “likely merely missed
during aerial surveys.” D.E. 320 at 9-14. This disregards Mr. Stehn’s sound underlying
methodology.
2 Supporting the credibility of Mr. Stehn’s testimony generally, TAP notes that its counsel did not prepare him as a witness, and (so far as undersigned counsel knows) Mr. Stehn did not prepare himself as a witness before the Court asked for him to be subpoenaed. Moreover, his deposition was not taken. Mr. Stehn’s demeanor revealed a comfort that comes from relying on personal knowledge, long experience, and sticking to the truth.
3.
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Defendants correctly admit that Mr. Stehn’s “mortality assumptions are based on the
presumed predictability of identifying individual cranes where [he] expected to find them within
specific territories.” D.E. 320 at 2, 12. A mortality is determined when a bird goes missing from
its known territory on two or more flights and is not relocated on subsequent flights. Tr. 324:1-6
(Dec. 6); 327:23-25 (Dec. 6) (Stehn); 61:24 – 62:2 (Dec. 6) (Chavez-Ramirez). Mortality of a
Whooping Crane is a logical conclusion based on sustained absence, and knowledge of family
unit composition, territoriality, site fidelity, and crane behavior. Tr. 321:17-24; 322:3-4 (Dec. 6)
(Stehn); 84:18 – 85:1 (Dec. 6) (Chavez-Ramirez). No expert on Whooping Cranes, including
Defendants’ own expert, Dr. Slack, disputed this.
Only Dr. Conroy testified that Mr. Stehn’s mortality determinations were unreliable. D.E.
320 at 12. He did not base this opinion on any personal observation of Mr. Stehn’s methods, and
he had no experience with Whooping Cranes; rather he merely reviewed the literature and the
materials and summaries of Stehn’s reports provided to him by Defendants’ counsel. Tr. 101: 11
– 103: 12; 106: 11 – 107: 24 (Dec. 15). Dr. Conroy said his reason why he thought Stehn’s
mortality count was unreliable was that non-detection could be confused with mortality. Tr. 93:
20-22 (Dec. 15). He said the Crane might simply be not detected, may be temporarily absent
from the territory, may have left the survey area, or the crane was dead. Tr. 93: 22 – 94: 14 (Dec.
15). His opinion reflects his complete lack of experience with this species and its basic biology,
and is flatly contradicted by the much more experienced experts who actually know about
Whooping Cranes, spent years working in the field with Whooping Cranes, and even flew on the
census flights. Tr. 289: 23-24; 290: 6 – 291: 6; 311: 23 – 312: 9; 317: 1-3 (Dec. 6) (Stehn); 19: 8-
17; 25: 2 – 31: 1; 38: 19 – 43: 16; 59: 5-11 (Dec. 6) (Chavez-Ramirez).
4.
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Even Dr. Conroy eventually admitted that given the known characteristics of Whooping
Cranes—fixed territories, conspicuous individuals, identifiable by age—then sequential aerial
visits would allow a person to infer mortality. Tr. 171:19 – 172:1 (Dec. 15). To the extent he
argued against reliance on Mr. Stehn’s findings, Dr. Conroy ignores the fact that Mr. Stehn
would actively search for missing Cranes each time, revisiting the territory several times on the
same and subsequent flights. Tr. 308: 20-25; 311: 23 – 312: 9; 312: 13-15 (Dec. 6) (Stehn); 59:
5-11 (Dec. 6) (Chavez-Ramirez). Dr. Conroy ignores that Mr. Stehn would search the uplands
and freshwater ponds for missing Cranes. Tr. 311: 23 – 312: 9 (Dec. 6) (Stehn). Dr. Conroy
ignores that Cranes in unusual locations or off the refuge are quickly detected and reported to
USFWS by landowners, farmers and the public. Tr. 329: 10 – 330: 2 (Dec. 6) (Stehn).
Significantly, Defendants fail to produce a single piece of evidence that missing juvenile
cranes were somehow alive and hiding in their parent’s territory or on the uplands. Eventually,
Dr. Conroy agreed that Mr. Stehn detected most, if not all, present during each survey. Tr. 137:
16-20 (Dec. 15). There is also no evidence that the missing juvenile cranes were sighted off the
Refuge. Instead, testimony established that they likely would have been reported because of the
“spotter” network and the public awareness of the highly conspicuous Cranes. Tr. 302: 22 – 303:
10; 330: 3-14 (Dec. 6) (Stehn); 65: 15-24 (Dec. 5) (Archibald); 129: 5-25 (Dec. 15) (Conroy).
Subject to rare exceptions, such as at the very end of winter, or if the juvenile attached to
a Sandhill Crane flock, juvenile Whooping Cranes do not survive on their own. Tr. 99: 15 – 100:
13 (Dec. 7) (Stehn) (“my 29 years of experience says the juvenile cannot survive.”); 330: 15-25
(Dec. 6); 151: 16 – 152: 5 (Dec. 5) (Archibald) (“Occasionally in biological systems, you’ll have
everything happen. It’s what happens most of the time that’s significant.”). Thus when a known
juvenile crane disappears from its territory, and is no longer seen elsewhere on or off the Refuge
5.
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for the rest of the winter, Mr. Stehn justifiably concludes it is dead. For example, Mr. Stehn
testified about one separated juvenile that spent a few days on the tour loop road in 2008-2009,
then was reported a mile north of the refuge, then disappeared with no further sightings. Tr. 329:
10 – 330: 2 (Dec. 6); PX107-109.
Further compelling evidence of Mr. Stehn’s ability to detect mortality for his aerial
survey comes from this testimony about the shooting death of a crane in 1989. Tr. 105: 12 – 106:
18 (Dec. 7).
When that crane was shot, I was actually up in the air doing a census flight. And when I landed and drove back to the refuge office, I reported, “We’ve got a missing adult out there.” And the secretary said, “Yes, we’ve been in touch with law enforcement, and there’s been a shooting.”
Tr. 105: 20-25 (Dec. 7). In short, Mr. Stehn knew during his aerial survey that a crane was
missing within hours of the incident, and he was correct—that missing adult was a confirmed
mortality. Id.; DX168 at TS000569-570.
The results of the individual census flights are summarized by Mr. Stehn, and widely
circulated to interested parties, including members of the Whooping Crane Recovery Team,
other scientists, birdwatchers, and the public. These individual census reports typically discuss
the number of cranes observed, their locations, flight conditions, any problems encountered, and
any unusual observations. They are exactly the type of field notes that any scientific observer
would, and should, document. Tr. 135:20 – 137:15 (Dec. 15) (Conroy). Defendants baselessly
infer unreliability from these field notes, even while their own expert, Dr. Conroy, affirmed the
accuracy and reliability of the peak population census number that came out of these same
reports.
Despite all evidence, Defendants’ brief relies on Dr. Conroy for a bare-bones recitation of
the five Daubert factors. D.E. 320 at 12. Defendants reassert their Daubert objections against Dr.
6.
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Chavez-Ramirez and Mr. Stehn. D.E. 320 at 10 n.1. Defendants’ objections should be denied for
all the reasons heard during trial, and fully briefed in TAP’s previous response, D.E. 243.
2. Defendants’ fervent wish for 23 carcasses does not comport with what happens in the wild.
Defendants make much of the fact that out of the 23 mortalities, only four carcasses were
found. Defendants simply ignore inconvenient testimony—including by their own witness—that
contradicts their alternate explanations about the 19 dead cranes that lacked carcasses.
Defendants ignore testimony that scavenging is the most reasonable explanation for why 19
carcasses were not discovered at Aransas that winter. Tr. 116:23 – 117:13; 117: 15-24 (Dec. 5)
(Chavez-Ramirez); 147:8 – 149:16; 151: 6-18; 155: 6-18; 156:16 – 157:19 (Dec. 15) (Conroy).
Dr. Chavez-Ramirez testified that there are at least eleven species of scavengers at
Aransas that would eat the carcass of a dead Whooping Crane. Tr. 117:15-24 (Dec. 5). This
explains why only approximately 20 Whooping Crane carcasses have been found at Aransas
between 1938 and 2010, four of which were during 2008-2009. Tr. 116: 23 – 117: 13 (Dec. 5).
Defendants’ expert Dr. Conroy admitted that his own paper found carcass persistence is low in
rural environments, and he also agreed that there were many scavengers at Aransas. Tr. 147: 8 –
149: 16; 151: 6-18; 155: 6-18; 156: 16 – 157: 19 (Dec. 15) (82 percent of crow and sparrow
carcasses disappeared within six days; 92 percent of song-birds within five days; only 2 chicken
carcasses out of 275 lasted over 24 hours; 62 percent of duck carcasses in a Texas wetland were
gone within three days). Thus, all the evidence established a perfectly valid reason why nineteen
out of the 23 Crane mortalities lacked a carcass—Crane carcasses quickly disappear in the wild
so are unlikely to be found.
7.
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3. Defendants’ theory that the dead birds from 2008-2009 “returned” the following year is simply wrong.
Defendants argue that 17 Whooping Cranes “unexpectedly arrived” during the winter of
2009-2010, and that the “only reasonable explanation is that the Crane mortalities reported by
USFWS were not dead, but rather simply went undetected by Stehn during aerial surveys and
returned the next year.” D.E. 320 at 15-16. As explained on the stand by two witnesses, this
theory is incorrect for two reasons: first they misrepresent Mr. Stehn’s summer estimate; second,
they assume that additional birds must be the ones declared dead.
Defendants correctly state that 247 cranes left Aransas in spring of 2009, and the peak
count the following winter was 264. This is an increase of 17 cranes over the number that left.
Describing this as “unexpected” misstates the facts. Defendants seem to conjure the
“unexpected” claim from the fact that in the preceding summer Mr. Stehn made a guesstimate of
how many cranes he thought might arrive that fall. In fact, Mr. Stehn made two guesstimates for
the next winter of 2009. Mr. Stehn does this each year based on the flock size leaving Aransas,
plus the number of known chicks in Canada, and the average mortality during migration. Mr.
Stehn described that he does this “very rough guestimate” every year for the purpose of being
able to have a number ready for the inevitable media inquiries. Tr. 113: 19 – 114: 11 (Dec. 7)
(“the media is always very interested in how many cranes are going to arrive, and I make this
estimate”).
Mr. Stehn made two guesstimates for the number of Cranes returning in the winter of
2009—he made one guess of 247 (i.e., no population growth), and another guess of 260. Tr. 113:
8-10; 117: 9-12; 117: 22-25 (Dec. 7). Defendants focus on the first guess. But Mr. Stehn clearly
stated on the stand that for, 2009-2010, he also estimated 260 returning cranes in his report,
because the prediction is highly dependent upon mortality during migration, which can be highly
8.
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variable. Tr. 117: 22 – 118: 1; 118: 18-23 (Dec. 7). Thus, if the Defendants had focused on this
second guess, then Stehn’s prediction would be off by only four birds. In either case, these are
plainly guesses only.
The second error is that Defendants imply that a returning flock of 264 in 2009-2010 is
inconsistent with the previous winters’ mortality figures and that, therefore, the dead birds were,
they say, just missing. After accounting for the 23 deaths, Tom Stehn reported that 247
whooping cranes left Aransas in spring 2009 and that the peak population for the next winter of
2009-2010 was 264 cranes. DX7 at TAP-006981.
The peak number of paired adults in 2008-2009 was 140 cranes (70 pairs). DX6 at
TS008847. This is the exact number of paired adults in 2009-2010. DX7 at TAP-006985. If the
16 dead juveniles had in fact just gone missing, and all 38 juveniles had survived to return the
next year, there would have been approximately 122 unpaired subadults in the flock, and a total
peak population of “281 to 283 birds.” Tr. 267: 6-22 (Dec. 6) (Chavez-Ramirez). The subadult
count in 2009-2010 was only 102 cranes. DX7 at TAP-006985. The fact that only 264 birds
returned in 2009-2010, rather than 281 or 283, and there were only 102 subadults, support the
2008-2009 mortality levels reported by USFWS.
B. Defendants’ representations concerning the USFWS counts should be carefully scrutinized.
Defendants recite a veritable litany of contemporaneous field observations by Mr. Stehn
from the 2008-2009 winter flights, sometimes in both bolded and underlined text. D.E. 320 at
12-13. Much of this is simply confirmation of what Stehn wrote in his reports. Other times it is
more misleading; for example:
Q. But when they go to the uplands, aren't the families observed from time to time associating with other subadults, other pairs and other juveniles?
9.
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A. From time to time. Most of the time they, they probably are by themselves, as a unique family group. Now, even when they're associated with other cranes on the uplands, you can usually look at the spacing, and you can also look at the behaviors, and you can say, "Oh, yeah, that's a family group, and it just kind of pushed off four subadults that are 50 yards away." So you get, you get some clues.
Tr. 52: 16-25 (Dec. 7) (Stehn). Defendants mis-cite this exchange for the proposition that “Stehn
repeatedly noted that cranes’ presence on the uplands make it difficult to identify specific
territorial cranes, which he said created much uncertainty and undermined the accuracy and
reliability of the counts from his aerial surveys.” D.E. 320 at 13. This is not what Stehn said.
In general, Defendants ignore the testimony by Mr. Stehn that explains or conditions the
meaning of what he had written in his reports. For example, Defendants cite Mr. Stehn’s report
that cranes were observed outside the survey area. D.E. 320 at 13; Tr. 99: 7-9 (Dec. 7) (Stehn).
Indeed, this is true but there is more to the story. That is, Mr. Stehn reported that one solitary
juvenile was observed by a farmer outside the survey area, and shortly thereafter, it disappeared,
presumably dead. Tr. 329: 10 – 330: 2 (Dec. 6) (Stehn).
Defendants wrongly state that TAP’s witness testified that “[T]he average number of
carcasses recovered in those prior years represents 2.2% of the flock.” D.E. 320 at 9. Dr. Chavez-
Ramirez said no such thing. Defendants counsel presented Dr. Chavez-Ramirez with a
hypothetical question, without supporting evidence. Tr. 153: 12-14 (Dec. 6) (“Q. Would it
surprise you if I were to tell you hypothetically…”). The question did not identify any particular
years when carcass recovery was 2.2%. But if the question referred to 1951-1952 when two
carcasses were recovered during the winter, one was a live bird that had been shot and later died
at San Antonio Zoo. PX154 at NWHC000004. The question did not distinguish between
carcasses recovered because of radio telemetry tracking. Until 1986 radio tracking devices were
used on multiple cranes to detect mortality. Tr. 148: 13-15; 149: 11-13 (Dec. 5) (Archibald). If
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the hypothetical question referred to 1982-1983 when again two carcasses were recovered during
the winter, both birds were in fact radio tagged, which allowed for recovery of their carcasses.
PX154 at NWHC000004; DX155 at TAP-004394-4395. If the hypothetical question referred to
1988-1989, one carcass was handed over to USFWS after being shot by a Houston lawyer in
January 1989. DX168 at TS000569-570; Tr. 220: 1-13 (Dec. 5). The second carcass was a sick
crane captured alive which later died of avian tuberculosis in San Antonio Zoo. DX168 at
TS000570-571. Another carcass in 1984 was a radio tagged bird. PX154 at NWHC000004. In
sum, there were three winters in which two carcasses were recovered, six in total, of which five
were either recovered because of radio tracking, captured alive, or shot and delivered to USFWS.
Nothing in these facts indicates that the recovery of four carcasses in 2008-2009 was anything
but extraordinarily high, and strong evidence of an overall high mortality rate that winter.
Defendants imply that there was something about the 2008-2009 winter census flights
that was different than other previous years. D.E. 320 at 14. They imply that the lack of color
bands, low flying passes, and slower planes somehow makes Mr. Stehn’s count in just that year
suspect or unreliable. Defendants do not explain, much less prove, that high mortality counts in
other low inflow years were similarly affected by changes in census methodology.
Finally, Defendants attempt to downplay the loss of 23 canes by arguing that it is all part
of a “ten-year cycle” with a drop in the Whooping Crane population approximately at the end of
each decade. D.E. 320 at 16. Winters of high deaths at Aransas do not follow any ten-year cycle.
They occurred in 1988-89; 1989-90; 1990-91; 1993-94; 2000-01; 2005-06; 2008-09. PX266. As
both Dr. Sass and Dr. Ensor testified, high deaths at Aransas strongly correlate with freshwater
inflows, which do not follow any ten-year cycle. Mr. Stehn clearly stated that the ten-year cycle
“seems more connected with the reproduction up in Canada.” Tr. 130: 22-23 (Dec. 7). According
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to Mr. Stehn, the unprecedented winter mortality in 2008-2009 was unrelated to the ten-year
cycle:
Q. But in your opinion, was the death of 23 birds caused by anything other than food shortages at Aransas?
A. No, sir. The population cycle -- the ten-year cycle, we believe, is something going on mostly in Canada.
Tr. 142: 21-24 (Dec. 7) (Stehn). The Recovery Plan discusses research that “has correlated the
crane cycle with that of boreal forest predator cycles.” PX11 at 18. Mr. Stehn noted that the
production of only 22 chicks in the summer of 2009 was “below average.” Tr. 132: 1-6 (Dec. 7).
As is clear for the above evidence, and contrary to Defendant’s brief, Mr. Stehn categorically did
not offer the ten-year cycle as a reason for the high winter mortality in 2008-2009.
III. LEGAL STANDARDS ON PROOF AND CAUSATION
A. The burden of proof is preponderance of the evidence.
TAP agrees with Defendants that the burden of proof is preponderance of the evidence.
See D.E. 320 at 5 (citing Sierra Club v. Froehlke, 534 F.2d 1289, 1300 (8th Cir. 1976)); see also
Matter of Briscoe Enterprises, Ltd, 994 F.2d 1160, (5th Cir. 1993) (stating the standard means
“more likely than not”). The “preponderance of evidence” standard is discussed in the Fifth
Circuit Pattern Jury Instruction 3.1.
B. The ESA uses ordinary requirements of proximate cause.
The ESA is subject to “ordinary requirements of proximate cause.” Babbitt v. Sweet
Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 700 (1995) (O’Connor, J.,
concurring). TAP has discussed this standard in other briefing. D.E. 227 at 26.
Proximate cause is composed of two elements, cause-in-fact and foreseeability. Gutierrez
v. Excel Corp., 106 F.3d 683, 687 (5th Cir. 1997); In re Enron Corp. Securities, 623 F. Supp. 2d
798, 811 (S.D. Tex. 2009). “Cause in fact means that the omission or act involved was a
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substantial factor in bringing about the injury and without which no harm would have occurred.”
In re Enron Corp. Securities, 623 F. Supp. 2d at 811. “Cause in fact” is also referred to as a “but
for” cause. Gutierrez, 106 F.3d at 687. For foreseeability, “all that is required is that the injury be
of such a general character as might reasonably have been anticipated.” In re Enron Corp.
Securities, 623 F. Supp. 2d at 811.
C. Proximate cause may be proven with either direct or circumstantial evidence.
Proximate cause may be proven by either direct or circumstantial evidence. Gutierrez,
106 F.3d at 687; Wackman v. Rubsamen, 602 F.3d 391, 403-04 (5th Cir. 2010) (“Circumstantial
evidence can be used to establish causation.”). In general, causation is a question of fact for the
fact finder, who has broad latitude to infer proximate cause from the evidence and circumstances
surrounding an event. Gutierrez, 106 F.3d at 687.
Defendants mistakenly argue that the only way to prove a “take” is to produce a carcass
and conduct a necropsy to establish cause of death. D.E. 320 at 9-10. This misstates black letter
law on proof of causation, which permits both direct and circumstantial evidence. Wackman, 602
F.3d at 403-04; Gutierrez, 106 F.3d at 687. Courts permit the killing or injury of an endangered
species to be established by the testimony of an expert witness giving an opinion that the
modification of the habitat is significantly impairing the animals’ essential behaviors, leading to
injury or death. See Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1067-68 (9th Cir. 1996). Also,
courts do not demand a carcass, when there is evidence supporting a population reduction due to
habitat modification, such as decreased shelter or decreased food supply within their habitat.
Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988) (“‘Harm’ does not necessarily require
the proof of the death of specific or individual members of the species.”), aff’d in part and
vacated in part on other grounds, Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991). Here,
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mortality determinations during aerial surveys are direct evidence of mortality through the
eyewitness testimony of Mr. Stehn.
Defendants’ citations to Strahan v. Pritchard, 473 F. Supp. 2d 230 (D. Mass. 2007), and
Cold Mountain v. Garber, 375 F.3d 884 (9th Cir. 2004), are not on point. D.E. 320 at 6. In
Strahan v. Pritchard, there was no evidence at all that any listed species was actually killed or
injured in the fishing gear at issue. In other words, there was no evidence of either a population
decline or a single mortality; thus it is unlike TAP’s case, where there is proof of significant
population decline due to 23 deaths. Likewise, in Cold Mountain, there was no evidence of
mortality or essential behavioral changes within the bald eagle habitat; again, this is unlike
TAP’s case, which has presented both.
Defendants find it remarkable that they cannot find reported cases where aerial surveys
are used to establish a violation of the ESA. D.E. 320 at 10. Their proposition is an empty set,
void of any law, and thus of no weight for consideration. Also, it is not surprising. Whooping
Cranes are unique because the single wild flock is less than 300 birds, in a well-defined area at
the Refuge, with known territories, and they are highly conspicuous. These facts make the
population highly suitable for an aerial census including a mortality determination as even
Defendants’ witness admitted. See Tr. 171:19 – 172:1 (Dec. 15) (Conroy). Here, mortality is not
established by a carcass alone, although in 2008-2009 there were four carcasses and two
necropsies both showing emaciation. Mortality, and its cause, was established by the totality of
TAP’s evidence in TAP’s case in chief. More importantly, no court has ruled that aerial surveys,
or other types of population surveys, cannot be used to establish an ESA violation.
D. Causation under the ESA may be either “indirect” or “deliberate.”
In Sweet Home, the Supreme Court stated that “Congress understood § 9(a)(1)(B) to
prohibit indirect as well as deliberate takings.” 515 U.S. at 700. In Strahan v. Coxe, the First
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Circuit rejected the defendant-state agency’s interpretation of causation that sought to exclude
the “‘indirect causation’ of a taking by the Commonwealth through its licensing scheme.” 127
F.3d 155, 163 (1st Cir. 1997). Instead the First Circuit determined that any “indirect causation”
fell within “the normal boundaries” of causation. Id. As “indirect” causation is applicable,
Defendants misdirect their argument that water diversions were not the immediate or direct cause
of death of the four recovered Crane carcasses. D.E. 320 at 9.
E. Habitat modification is an indirect take.
To establish a take, death or injury need only occur because the modification of habitat
altered essential behaviors such as feeding, breeding or sheltering. 50 C.F.R. §17.3. It is
axiomatic that not all deaths due to altered behavior will result in a carcass that can be
necropsied. TAP’s evidence established a prohibited “take” by altering “feeding” and
“sheltering,” within the USFWS definition of “harm” through habitat modification.
Among the impacts on feeding were impacts on juveniles. In Whooping Cranes, normal
behavior involves the two parent cranes teaching the juvenile how to feed, and actually feeding
the juvenile. Tr. 74:25 – 75:13 (Dec. 5) (Archibald); 115: 4-13 (Dec. 6) (Chavez-Ramirez)
(young beak too soft for crabs). Dr. Chavez-Ramirez testified that he witnessed how this normal
behavior was altered in February 2009 because of the extreme lack of food, the parents refused
to give their juveniles food, even showing aggression towards their own offspring. Tr. 97:18 –
98:17 (Dec. 6). Experts agreed that this lead to juvenile separation and was the reason for the
very high rate (40%) of juvenile mortality that winter. Tr. 65: 6-9; 132:2 – 133:9 (Dec. 6)
(Chavez-Ramirez); 328:1-5 (Dec. 6) (Stehn). Solitary juveniles who are driven away, abandoned,
or simply leave the parents and territories are unlikely to survive on their own. Thus, the
extreme lack of food caused the extraordinary behavioral alteration of leading parents to deny
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providing food to their begging children, with the resulting death or injury of the juvenile,
meeting the definition of “harm.”
There were other impacts on feeding and sheltering. The crane families are highly
territorial. Their territories are relatively safe locations, normally with ample food, water and
few predators. E.g. Tr. 116:5-22 (Dec. 6) (Chavez-Ramirez). To the extent that a Whooping
Crane has a winter shelter, their territory is it. If the habitat within the territory is modified such
that a crane must leave their own territory to seek alternative sources of food or water in the
territories of other families, or in areas beyond all territories, and as a result suffers death or
injury, this meets the definition of “harm.”
Habitat alteration that reduced the availability of food or water caused a change in
“feeding” behavior. The lack of adequate numbers of blue crabs and wolfberries caused the
Whooping Cranes to have to leave their normal territories to seek food and water outside of their
usual patterns. Tr. 115:22 – 116:4 (Dec. 6) (Chavez-Ramirez). A change in feeding behavior is
only not a “take” if the alternative location or source of food is an adequate replacement and no
death or injury occurs as a result. See Greenpeace v. Mineta, 122 F. Supp. 2d 1123, 1134 (D.
Haw. 2000) (holding that monk seals found ample food in the alternative foraging locations and
none were shown to have died). Defendants presented no testimony that corn was an adequate
replacement for the cranes normal foods. See Tr. 26: 16-22 (Dec. 7) (plaintiff testimony that corn
is not an adequate replacement for blue crabs for the cranes). Testimony also established that
only 20% of the flock used the corn feeders. Tr. 27: 21-23 (Dec. 7); PX377. Thus for the 80% of
the flock that lacked adequate food on their territories, no alternative food was available.
For all these reasons, Defendants’ demands that TAP prove its case with both a corpus
delicti and a necropsy exceed the requirements for a prohibited “take.”
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F. Proof of a “population level effect” is not required in the Fifth Circuit, but even if it were, TAP easily meets this standard.
The TCEQ Defendants incorrectly state the standard of proof in Section 9 take cases for
this Circuit. D.E. 317 at 21. Defendants assert that TAP must show that the prohibited take had
“population level effect on an endangered species… [that] prevents or retards the recovery of the
species and could or would drive it to extinction.” Id. Defendants cite a requirement that is
applied in the Ninth Circuit for habitat modification cases. Coalition for a Sustainable Delta v.
McCamman, 725 F. Supp. 2d 1162, 1169 (E.D. Cal. 2010) (“[I]n the Ninth Circuit, harm by
habitat modification requires proof of a population level effect.”). In any event, such a rule if
adopted in this Circuit, is easily met by TAP’s evidence. TAP’s evidence that at least 23 cranes
died, a population loss of 8.5 percent in a single winter, is a loss of population-level significance
by any reasonable standard. Tr. 322: 23 (Dec. 6); 149: 2-5 (Dec. 7) (Stehn). PX22 at 23–24; DX6
at TS008837–38. Higher than normal mortality on the wintering grounds, such as the 3 percent
or more that occurs during years of low freshwater inflows, would result in no increase or even
declines in the species. Tr. 64: 5-11 (Dec. 5) (Archibald). Testimony established that with less
than 300 individuals, the species is extremely vulnerable and at risk of extinction. Tr. 69: 18
(Dec. 5) (Archibald); 119: 12-15 (Dec. 15) (Conroy).
By making this population level argument, Defendants present a circular logic. They
argue that the only way to prove a “take” is to produce a carcass and conduct a necropsy to
establish cause of death, D.E. 320 at 9-10. If that were the requirement, they would present a
logical impossibility of ever proving the “population level” standard they advocate. Yet, when
Plaintiff proved the “population level” take, then Defendants demand “individual only” proof.
When Plaintiffs prove “individual” impacts, they flip-flop and demand the other. They attempt
to create standards that are impossible to meet.
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IV. RESPONSE TO ARGUMENTS ON CAUSATION
Defendants press that TAP’s causation is based on “speculation,” but it can hardly be said
to be speculation when multiple USFWS documents make the same connection as TAP—that the
Whooping Cranes and their habitat will suffer when there are low freshwater inflows. Tr. 81: 21
– 82: 25 (Dec. 5) (Archibald); PX11 (USFWS Recovery Plan, approved by the State of Texas);
PX25 at 1 (Spotlight Species Action Plan); see also PX382 (in 1998, Texas Parks & Wildlife
likewise found the need for freshwater inflows to maintain the health of San Antonio Bay). TAP
made much more than a prima facie showing of causation, and Defendants did not challenge the
reliability of any of TAP’s witnesses on causation under Daubert.
TAP’s causation is simple, albeit with various biological components: that is, the
TCEQ’s Defendants’ management of water diversions altered the Whooping Crane’s habitat.
That is the causation. This causation requires some biological explanation and proof (i.e., that
bay and estuary salinity increases with lower inflows; likewise that higher salinities can alter and
even kill the ecosystem of an estuary, including food sources). But, these biological components
do not render the causal mechanism suspect. To the contrary, these biological realities are well
known and accepted, even among the Defendants’ experts. Thus well-established science shows
it is known how water diversions alter habitat, because (as Dr. Montagna explained and Dr.
Ward explained admitted), one of the most fundamental features of an estuary is its salinity
gradients, which is dependent upon freshwater flows. Tr. 200: 6-15; 201: 22 – 202: 20 (Dec. 7)
(Montagna); 111: 5-13 (Dec. 14) (Ward). Moreover, TAP’s proof of causation through expert
testimony on the ecological realities of the Crane habitat was buttressed by the expert testimony
of two immensely well-qualified experts (Dr. Sass and Dr. Ensor), who proved the statistically
significant correlation of low freshwater inflows and high Crane mortality.
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A. Defendants failed to rebut or to discuss, and therefore concede, the strong statistical correlation between low freshwater flows and high Whooping Crane mortality.
Noticeably absent from the testimony of Defendants’ witnesses at trial, and never
mentioned in the Defendants’ post-trial brief, is any discussion of TAP expert witnesses Dr. Ron
Sass and Dr. Cathy Ensor. Defendants do not dispute, much less even address the statistically
significant correlation established by these two experts.
Defendants did not file any Daubert challenges to either Dr. Sass or Dr. Ensor. The only
aspect of the testimony of these two experts indirectly—and erroneously—attacked by
Defendants is the underlying Whooping Crane mortality data (which is of course relied upon by
everyone else—USFWS, the Recovery Team, and scientists in the field, including Dr. Slack). If
the Court finds the Stehn mortality data reliable, then Dr. Sass and Dr. Ensor’s analysis relying
on the observations is unchallenged. Put simply, Defendants do not attack, contradict, or
otherwise contest the conclusions of Dr. Sass and Dr. Ensor. They were unrebutted.
TAP established causation not only through experts discussing the ecology of the Crane
habitat and the biology of the Cranes, but also by a statistical linkage. The statistical evidence by
Dr. Sass and Dr. Ensor provides a powerful foundation for TAP’s proof of causation. See Univ.
Computing Co. v. Mgmt. Science Am., Inc., 810 F.2d 1395, (5th Cir. 1987) (stating that Fifth
Circuit is “very tolerant of the use of statistical proof to show prima facie evidence of
causation”).3
Dr. Sass testified that his test result had a statistical significance level of 98 percent (p-
value = 0.02). Tr. 207: 3-9 (Dec. 5). Dr. Ensor, Chair of the Rice Statistics Department,
confirmed the validity of the choice of this test and confirmed its result. Tr. 239: 5-12 (Dec. 5).
3 The use of statistics in litigation is the subject of both case law and law review articles, which recognize that statistics are widely used and accepted in different litigation contexts. The Courts do require presentation of such evidence by qualified experts, such as Dr. Sass and Dr. Ensor. The Courts also recognize that statistical evidence gains strength when supported by proof of underlying mechanisms of causation, as TAP did in this case.
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Statistical significance is commonly established at a 95 percent level (p-value = 0.05). Tr. 207:
10-13 (Dec. 5) (Sass); Federal Judicial Center, Reference Manual on Scientific Evidence, at 251-
252 (3d. ed.) (2011). As Dr. Sass explained:
Q. … in the biological world, how do you consider a 95 percent --
A. I consider it pretty exceptional, really, that you can get percent probability 98
Q. So you would call 98 percent probability of outcome –
…
A. I would call it beyond expectation.
Q. So 98 percent is extremely good.
A. Yes.
Tr. 207: 14-24 (Dec. 5). In other words, Dr. Sass confirmed that this correlation was extremely
strong. Dr. Ensor’s Poisson Count Regression had an even higher level of significance (p-value =
0.0001). Tr. 241: 3-11 (Dec. 5); PX27; PX28. These results, combined with the observations,
scientific explanations and opinions presented by TAP’s expert witnesses, including Sass,
Trungale, Montagna, Chavez-Ramirez, Archibald and Stehn, establish causation.
These results overcome Defendants’ speculative and fanciful alternative theories based
on every phenomena they could conceive of (e.g., tides, temperatures, overall declines in blue
crabs, commercial crabbing, infection/disease, 10 year cycles, supplemental feeders, low water
levels). Despite having immense funds that they in fact deployed on experts (and lawyers) in this
case, Defendants did not present a single piece of competent evidence showing any statistical
association or correlation between high crane mortality and any of their imagined alternative
factors. None of Defendants’ speculation about these phenomena calls into question TAP’s proof
based on statistically significant correlations over two decades. Defendants had ample
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opportunity to investigate and discover their alternative relationships, and yet they simply failed
to present any trial testimony to support them.
For example, it may be true that evaporation from the waters of San Antonio Bay
increases salinity, and the Texas Water Development Board makes public the exact data on
monthly evaporation. PX269 (column “evap.”). This data shows that evaporation in 2008 and
2009 was very close to the mean, and certainly nothing out of the ordinary. Id. So Defendants
had the data, time and resources to conduct analyses of their hypothetical alternatives and find
associations with mortality or food supplies, and they may well have done so. If the results
supported their hypothetical alternative theories, such as an association between high evaporation
and high mortality, or low evaporation and high numbers of blue crabs, then surely Defendants
would have presented it to the Court (in which case TAP would have had the opportunity to
rebut such evidence). But because Defendants did not present any statistical evidence (or any
other evidence) to support hypothetical alternative correlations, there is nothing to rebut.
B. TAP proved each of the elements required to demonstrate that TCEQ Defendants proximately caused a prohibited take.
1. The State Defendants have authority to regulate State-owned surface waters.
As its primary defense, the TCEQ Defendants assert that “TCEQ consistently has
maintained that it lacks authority to order water rights holders to refrain from diverting water
except in specific circumstances not applicable to this case.” D.E. 317 at 4. This does, sadly,
state TCEQ’s consistent position in this litigation, which entirely disregards (1) black letter
Texas water law, and (2) express provisions in all certificates of adjudication and other permits,
discussed below. Moreover, the TCEQ position ignores the supremacy of federal law and
erroneously relies on the National Association of Homebuilders case.
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Due to TCEQ’s intransigence, Plaintiff recaps key, uncontradicted statutory authority and
precedent that Defendants disregard. No deference doctrine supports such willful blindness.
The TCEQ Defendants conjure specters of potential takings judgments against the federal
government, despite the TCEQ’s indisputable power to limit water use. More important, TCEQ
disregards how the needs of Whooping Cranes can be secured as part of a long-term program
that considers water resources more broadly in an HCP, EARIP, or similar program. Tellingly,
the TCEQ Defendants, GBRA, SARA, and others have been engaged in an HCP planning
process to protect the groundwater of the Edwards Aquifer.
a) Plain statutory text expressly grants TCEQ authority over water regulation and, therefore, the power to comply with the ESA.
Texas agencies are creatures of statute. Tex. Natural Res. Conservation Comm’n v.
Lakeshore Util. Co., 164 S.W.3d 368, 377-78 (Tex. 2005). TCEQ never comes to grips with its
clear enabling legislation granting authority to fulfill all federal ESA mandates. This follows
from the Texas Water Code, § 5.102(a), which directly states (emphasis added):
The commission has the powers to perform any acts whether specifically authorized by this code or other law or implied by this code or other law, necessary and convenient to the exercise of its jurisdiction and powers as provided by this code and other laws.
TCEQ baseless suggests the Court only should consider its powers under Chapter 11, but black
letter law affirms the authority under Chapter 5. Texas Water Code § 5.002 expressly provides:
The powers and duties enumerated in this chapter [5] are the general powers and duties of the [TCEQ] and those incidental to the conduct of its business. [TCEQ] has other specific powers and duties prescribed in other sections of this code and other laws of this state.
Accord TEX. WATER CODE § 5.101 (same mandate in subchapter stating “General Powers and
Duties of the [TCEQ]”).
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The Legislature could not speak more clearly: as provided in the Texas Water Code Title
2 (governing “Water Administration”), and provisions specifically governing TCEQ (Chapter 5),
the TCEQ Defendants have plenary authority to fulfill federal law in addition to authorities to
implement Texas laws. Also, the TCEQ Defendants entirely disregard Chapter 5’s expressly
mandated statutory construction:
This title shall be liberally construed to allow [TCEQ] and the executive director to carry out their powers and duties in an efficient and effective manner.
TEX. WATER CODE § 5.015 (emphasis added). Even without this express provision, the Texas
Supreme Court has held that, when the Legislature confers agency power, it impliedly intends
that the agency have whatever powers are reasonably necessary to fulfill its express functions or
duties. Lakeshore Util. Co., 164 S.W.3d at 378. Thus statutes, case law, and oaths of office for
the TCEQ Defendants (PX170–172)—as well as the Supremacy Clause, U.S. CONST. art. VI,
cl.2—confirm TCEQ plenary authority to uphold mandates of the ESA.4
Additionally, Texas statutes give TCEQ broad mandates to protect the environment.
Thus, TCEQ has “primary responsibility for implementing the constitution and laws of this state
relating to the conservation of natural resources and the protection of the environment.” TEX.
WATER CODE § 5.012. Indeed, the Legislature gave the mandate that TCEQ “shall administer the
law so as to promote the judicious use and maximum conservation and protection of the quality
of the environment and the natural resources of the state.” TEX. WATER CODE § 5.120. These
statutes surely impose mandates sufficient to protect the last breeding flock of Whooping Cranes.
4 The Texas Supreme Court also holds that “[s]tatutes are given a construction consistent with constitutional requirements, when possible, because the legislature is presumed to have intended compliance with state and federal constitutions.” Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990); TEX. GOV’T CODE § 311.021. It should not be necessary to recite what should be obvious, but the TCEQ Defendants persist in disclaiming powers they obviously have.
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The Legislature gave TCEQ “general jurisdiction” over both “water and water rights” in
TEX. WATER CODE § 5.013(a) (emphasis added). That is, the jurisdiction of the TCEQ
Defendants extends not only to the water permit holders, but also the water itself—so their hands
cannot be tied in the manner they protest. In short, the TCEQ Defendants hold the state’s
regulatory authority over surface water resources.
b) Certificates of adjudication and permits expressly reserve TCEQ supervisory authority over diversions
Every certificate of adjudication and permit is issued subject to TCEQ rules and “to the
right of continuing supervision” of State water resources exercised by the Commission. PX12,
379; DX268–270, 295, 306. TCEQ’s executive director recognized “that is standard language in
all permits.” Tr. at 204: 6-10 (Dec. 8) (Vickery).
The continuing right of supervision makes sense because water permit holders (including
holders of certificates of adjudication) have only “usufructuary” rights, that is, the right to use
the property of another. Texas Water Rights Commission v. Wright, 464 S.W.2d 642, 649 (Tex.
1971); Lower Colorado River Authority v. Texas Dept. of Water Resources, 638 S.W.2d 557, 562
(Tex. App.—Austin 1982), rev’d on other grounds, 689 S.W.2d 873 (Tex. 1984) (“The first
characteristic of the appropriative right, whether evidenced by a certified filing or by a permit, is
that the holder possesses merely a usufructuary right, that is, a right to use a particular part of
State water.”). The usufructuary right to appropriate water is only perfected when the water is in
fact beneficially used. TEX. WATER CODE § 11.026; see also Lower Colorado River Authority,
638 S.W.2d at 563.
To exercise “the right of continuing supervision” of this usufructuary right, in the San
Antonio and Guadalupe River Basins, the South Texas Watermaster determines whether water
permit holders may divert water at a given time. TEX. WATER CODE § 11.327. Permit holders
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must ask Watermaster permission for each diversion. Tr. 55: 10-15; 57: 3-11 (Dec. 8) (Segovia).
The Watermaster can refuse. Tr. 55: 15-19 (Dec. 8) (Segovia) (“We would either let you, give
you permission to take it, or if we were enduring droughts, we could either curtail you or ask you
to stop.”). This means that, in practice, TCEQ has actual authority and, in that sense, discretion
to determine when permit holders can obtain water.
Indeed, TCEQ has adopted a rule that confirms its authority, during times of water
shortage, for the South Texas Watermaster to cancel or modify declarations of intent to divert or
impound water, order pass-through and releases of impounded water, order diverters to limit or
cease diversions, or take any other action “necessary to ensure that downstream senior water
rights, demands for domestic and livestock purposes, minimum streamflow requirements,
minimum release requirements, and other conditions, are administered in accordance with
applicable laws.” 30 TEX. ADMIN. CODE § 304.21(c) (emphasis added). 5 The rule plainly
recognizes TCEQ power to regulate water usage “in accordance with” the ESA which plainly is
among the “applicable laws.”
c) National Association of Homebuilders is inapposite.
Likewise, the existence of TCEQ authority to act consistently with the ESA, and protect
Cranes, precludes any possible application of Defendants’ causation argument based on National
Association of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007), cited in TCEQ’s
brief (D.E. 317 at 18 & n. 70). As TAP explained in Response to Motion for Summary Judgment
(see generally D.E. 227 at 24-25), that case is distinguishable because it involved potentially
conflicting obligations of a federal officer under competing federal statutes. See Nat’l Ass’n of
5 In basins without a watermaster, the Texas Water Code, § 11.053(b) gives TCEQ broad authority to temporarily suspend or adjust the diversions by any water rights holders based on six enumerated factors. None of the six factors is based on the prior appropriation doctrine.
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Home Builders, 551 U.S. at 649 (“These cases concern the interplay between two federal
environmental statutes.”). TCEQ Defendants cite to no authority in support of their position that
a state official’s lack of authority can immunize him from liability for failure to comply with
federal law. And of course it does not. The Supremacy Clause assures that TCEQ has all
necessary authority to act to protect Cranes.6
As previously briefed, the Tenth Amendment has no bearing on this case.7 D.E. 90 at 25-
27. And, the Court has settled TCEQ Defendants’ repeated claims of Eleventh Amendment
immunity. D.E. 270 at 20-21.
2. State regulation is the cause of reduced freshwater inflows.
Defendants inexplicably argue that there is no evidence that TCEQ’s management of
water diversions “was materially different in 2008-09 than during previous or following years.”
D.E. 320 at 16. This point is irrelevant. TAP’s claim is that, when flows are low, TCEQ must
manage water diversions so to avoid a prohibited take of the Cranes. Also irrelevant is
Defendants’ reliance upon the fact that diversions in 2008-2009 were “lawful diversions under
preexisting permits.” As fully briefed, the ESA preempts state law to the extent that it purports to
authorize activities that cause a prohibited take of a listed species. D.E. 227 at 17. Indeed, the
language of Section 10 of the ESA forecloses the TCEQ Defendant’s argument: Section 10
6 E.g., Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 695-96, modified sub nom., Washington v. United States, 444 U.S. 816 (1979) (“It is also clear that Game and Fisheries, as parties to this litigation, may be ordered to prepare a set of rules that will implement the Court's interpretation of the rights of the parties even if state law withholds from them the power to do so”); North Carolina Board of Education v. Swann, 402 U.S. 43 (1971) (“[I]f a state-imposed limitation on a school authority's discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual school system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees.”); Pacific Rivers Council v. Brown, 2002 WL 32356431 (D. Or. Dec. 23, 2002) (state forester could be enjoined from implementing state regulations that violate federal ESA law); Seattle Audubon Society v. Sutherland, 2007 WL 1577756 *2 (W.D. Wash. 2007) (“Defendants have failed to cite any controlling authority for the proposition that a state official’s liability under the ESA turns on whether that official has discretionary authority.”). 7 Prior to TAP’s filing this brief, the TCEQ Defendants’ response brief was filed and it discussed the Tenth Amendment. But, Tenth Amendment claims were raised only cursorily in their opening brief. TAP refers the Court to prior briefing (D.E. 90 at 25-27).
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precisely speaks to this circumstance when it allows the USFWS to issue an incidental take
permit “if such taking is incidental to, and not the purpose of, the carrying out of an otherwise
lawful activity.” 16 U.S.C. § 1539(a)(1)(B) (emphasis added). Here, TCEQ actions authorizing
water diversions are “otherwise lawful activity” but they result in an incidental take under certain
circumstances, i.e., the low flow years.
Remarkably, the TCEQ Defendants then argue that there was “no evidence” that TCEQ’s
regulation of water caused reduced freshwater inflow into the bay. D.E. 320 at 16–17. To the
contrary, Mr. Trungale testified extensively about the difference in bay salinity between the no-
diversion scenario, the actual conditions, and an increased diversion scenario. Tr. 286: 11 – 288:
1 (Dec. 6) (Trungale); PX92–97; 106.
Testimony showed that 25 ppt is a critical threshold for blue crabs, and 18–23 ppt is
crucial for drinking water. E.g., Tr. Tr. 215: 14-18; 224: 22 – 225: 23 (Dec. 7) (Montagna);
126:2-9; 126:25 – 127:5; 127:15-19 (Dec. 6) (Chavez-Ramirez). Specifically, in December 2008,
with no diversions, 53% of the bay would be less that 25 ppt, but with actual diversions only
15% was below 25 ppt. PX106. In January 2009, with no diversions, 60% of the bay would be
less that 25 ppt, but with actual diversions only 26% was. PX106.
Freshwater inflows are reduced by water diversions authorized by TCEQ Defendants. Tr.
293: 3-11 (Dec. 6) (Trungale). Mr. Trungale’s modeled scenarios were based on actual
consumptive diversions. See PX101. Actual consumptive diversions have always been less than
the amount fully authorized in existing water rights (the permits and the adjudications) which
total approximately 650,000 acft/yr. DX305D; D.E. 320 at 17. In short, in the near future, and
even without any new permits being issued, freshwater inflows are likely to be reduced even
further. Mr. Trungale modeled a scenario of full use of only some of the permits (GBRA’s water
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permits in the lower basin), and his results showed higher salinity levels in the bay, for longer
periods of time. PX95-97; 103; 104. Under full use of all permits, as admitted by Defendants, the
amount of water pulled out of the rivers will greatly increase, and the situation for the Cranes
would only get much worse.
Defendants make much of the fact that droughts are natural, and cause low freshwater
inflows. D.E. 320 at 17. It is astonishing that after two years, Defendants still have yet to
understand what TAP’s case is about. It is not a lawsuit accusing “nature” of taking Whooping
Cranes. It is a lawsuit about TCEQ authorizing unabated water diversions even during periods of
low flows, thus lowering inflows and causing harm to Crane habitat with increasingly disastrous
consequences. It is precisely during the natural droughts that appropriate water management is
needed. The HCP process allows consideration of how, during the natural droughts, to undertake
water management.
Defendants wrongly allege that Mr. Trungale deliberately attempted to “distort the impact
of water diversions in 2008-2009.” D.E. 320 at 18. Mr. Trungale readily admitted that diversions
from stored water might impact one of his three modeled scenarios. Tr. 33: 17 – 34: 2 (Dec. 8).
However, he further testified that given the limitations on available data, all his models were
“conservative” and, in his opinion, accurate. Tr. 48: 17-25; 49: 2-3 (Dec. 8) (“it seems very much
in the range of what I would expect to see.”). Defendants did not present a single witness to rebut
this aspect of Mr. Trungale’s methodology. Instead, notably, Defense witness Dr. Ward admitted
that Mr. Trungale “ran the model correctly.” Tr. 163:17-21 (Dec. 14). In sum, the TCEQ
authorized diversions do impact inflows and bay salinities.
3. Water diversions affected salinities, which significantly modified habitat.
Defendants incorrectly assert, and with no record citation, that Dr. Ward did his own
analysis of water diversions and did not count water diversions withdrawn from off-stream
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reservoirs. D.E. 320 at 18. This is not true; Dr. Ward did not conduct his own assessment. No
such evidence was presented to the Court during trial. Dr. Ward instead relied upon the results of
Mr. Trungale and did not run any of his own alternative scenarios. Tr. 168: 24 – 169: 5 (Dec. 14)
(Ward).
GBRA’s expert Dr. Ward testified that the average salinity in San Antonio Bay under the
three Trungale scenarios only varies by 1ppt. D.E. 320 at 18, 22, 27. Dr. Ward was only able to
reach this conclusion by averaging the geographic distribution of salinities modeled by Mr.
Trungale. Tr. 134: 23-25 (Dec. 14) (Ward). (“Now, to try to compress this variation into
something that’s more assimilable to our human minds, I’ve just averaged them.”). Nowhere
does Dr. Ward explain adequately why this manipulated use of average salinity across the entire
bay system is a better, or even relevant, measure. To the contrary, Dr. Ward actually admitted
that the key aspect of an estuary is the geographic distribution of salinity gradients:
Q. Now, in your review of -- in your critique of Joe Trungale’s work, you didn’t mention anything about geographic coverage, right?
A. That’s correct.
Q. And isn’t, in fact, the geographic cover and the geographic distribution of various salinities a key aspect of the estuary?
A. It is.
Tr. 153: 11-18 (Dec. 14); DX280. And Dr. Ward testified that “the intent of TxBLEND is to
predict salinity throughout the bay.” Tr. 155: 9-10 (Dec. 14). Yet Dr. Ward decided that the
results of TxBLEND are “very complicated” so he chose to “pre-digest” and “summarize” the
results in his testimony. Tr. 155: 10-13 (Dec. 14). His summary consisted of one number—an
average salinity—to take the place of thousands of data points describing how salinity changes
throughout the bay, both geographically and temporally. DX424.
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By relying solely on average salinity, Dr. Ward sufficiently dumbed down Trungale’s
modeling results, and dumbed down what actually happens in the bay, to the point of being
meaningless. Indeed, averages can be very misleading,8 and that is precisely what Defendants
hope to achieve here. In a further attempt to cast confusion, Defendants make the statement that
the average salinity difference between the three Trungale scenarios is smaller than the natural
daily variability. This does not even make good nonsense.
Defendants cite the “sound ecological environment” finding for San Antonio Bay by
TCEQ’s BBEST. D.E. 320 at 18 (citing DX238). This finding is not very instructive here
because the BBEST report did not analyze blue crabs or Whooping Cranes as indicator species.
Tr. 213: 21-23 (Dec. 14) (Vaugh). However, notably, the BBEST report did observe that “[t]here
have been occasional short-term declines in Whooping Crane population which may be
correlated with re-occurring drought conditions.” DX238 at GBRA023622.
Defendants attempt to challenge the relationship between bay salinity and marsh salinity.
D.E. 320 at 19. However, their expert Dr. Davis admitted that his own work on the SAGES study
confirmed that bay salinity can be used as an indicator of marsh salinity, and indeed he used the
measured summertime bay salinity at the GBRA1 monitor to correlate against fall wolfberry fruit
production in the marsh. Tr. 66: 4-7; 69: 15 – 70: 4 (Dec. 15). Defendants’ argument that bay
salinity “only sets the baseline” for marsh salinity only applies for so-called intermittently
connected ponds that become disconnected from the bay and then dry out. D.E. 320 at 19. As Dr.
Davis confirmed, these types of ponds were only a very small percentage of the habitat in each of
the three territories the SAGES team studied. Tr. 72: 8 – 73: 3 (Dec. 15); DX223 at TAP-005029
(showing intermittently connected ponds (ICP) as by far the smallest proportion of habitat in
8 There is the joke about the statistician who put her head in the oven and her feet in the freezer. She said, “On average, I feel just fine.”
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each territory). However, even if bay salinity sets the baseline, high bay salinity means that the
ponds and marshes already start out very saline, and once disconnected from the bay, salinities
will climb even higher due to evaporation. In sum, the great weight of the evidence showed that
high salinities in 2008-2009 significantly modified the Crane habitat.
4. Modified habitat resulted in reduced availability of blue crabs, wolfberries, and drinking water.
The evidence showed that as salinity increases, crabs decrease. Both Dr. Montagna and
Dr. Miller agreed that crabs have a preferred salinity range related to defense against predation,
for better feeding opportunities, and for reduced parasites and diseases. Tr. 207: 21 – 208: 3;
210: 22 – 211: 12 (Dec. 7) (Montagna); 255: 10-18; 257: 3-8; 262: 3-14 (Dec. 14) (Miller). Dr.
Montagna’s testimony confirmed that blue crabs in the bay prefer a salinity range of 5-20 ppt,
with a “sweet spot” of 18 ppt, with reductions at 22 ppt, and a “sharp drop” above 25 ppt. Tr.
215: 14-18; 224: 22 – 225: 23 (Dec. 7); PX248. Dr. Montagna testified that keeping salinities
below 25 ppt over as much of the bay as possible would increase blue crabs. Tr. 213: 8-11; 216:
3-12; 248: 24 – 249: 16 (Dec. 7). Plaintiff established that the area of the bay below 25 ppt
declined dramatically due to the water diversions authorized by TCEQ Defendants in 2008-2009.
Tr. 286: 11 – 288: 1 (Dec. 6); 290: 11 – 293: 3 (Dec. 7) (Trungale); PX106, 378.
Defendants argue that TAP’s evidence shows a 10 ppt change in salinity will not
significantly reduce blue crabs. D.E. 320 at 2, 22. However, the predictive results from the
Boosted Regression equation speak to a relative increase in salinity causing a decline in blue
crabs, and are not intended to answer the question of the specific reduction in blue crabs if
salinity changes from 0 to 10, or 10 to 20, or 20 to 30 ppt. See Tr. 227: 5 – 229: 21 (Dec. 7)
(Montagna); PX249, 250.
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Dr. Slack actually provided an additional reason freshwater inflows matter. He testified
that clams are also affected by salinity and low inflows. Tr. 126: 18 – 127: 3 (Dec. 13) (Slack).
It beggars belief, but Defendants rely heavily upon the testimony of Dr. Porter, their
energetics modeler. D.E. 320 at 30–32. Dr. Porter lied under oath—repeatedly. D.E. 318 at 36;
D.E. 319 at 41-42 (¶¶525–531). TAP asserts that Dr. Porter lied because he knew, or was told,
that Greer’s feeding observations were not reliable. Dr. Porter is exactly what he appears to be: a
paid litigation consultant, who only used source data his attorneys told him to use; plugged it into
his generic energetic model; and presented the opinion sought by the lawyers to suit their case.
Dr. Porter’s model does not even speak to the issues in this case, because it merely purports to
show that if Cranes eat sufficient food, they will survive. Tr. 91: 12-15 (Dec. 14) (Porter). The
model simply confirms a self-evident truth, and certainly does not have anything to do with
actual lack of food in the Cranes’ habitat.
Not content with simply presenting misleading testimony, Defendants compound their
error by wrongly stating that Dr. Porter modeled a hypothetical diet from 2008-2009. D.E. 320 at
32. Nothing in the record shows that Dr. Porter attempted to use observations or data from 2008-
2009 to construct or model Crane diet from that winter. Indeed, despite his expertise in the field,
Dr. Chavez-Ramirez did not attempt to model energetics from that winter because there was
insufficient data. Tr. 195: 1-6 (Dec. 6). That is, TAP’s expert did not attempt to do what the data
would not allow him to analyze.
5. Modified habitat caused injury and death to the Whooping Cranes.
It is also incredible that Defendants continue to make the absurd argument that, because
there are no blue crabs and wolfberries in northern Alberta, then Whooping Cranes do not need
them to survive in Aransas. See D.E. 320 at 28, 29. TAP does not dispute that Texas blue crabs
do not live in northern Canada. However, the relevant, key issues here are: (1) whether winter
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foods at Aransas, such as snails and insects, are available and consumed in sufficient quantities
to replace low abundance of blue crabs and wolfberries, and (2) whether blue crabs and
wolfberries are so important in the winter that low abundance of them causes food stress and
mortality. The answer, as discussed in TAP’s Closing Argument, is that blue crabs and
wolfberries are the most important foods and that other foods are not available in sufficient
quantities to make up for decreases in their bioavailability.
Defendants rely heavily on the testimony of Dr. Slack, who has never undertaken his
own fieldwork but instead has relied entirely on his students to collect data. Tr. 173: 22 – 174: 16
(Dec. 13). Dr. Slack, and other experts, relied on two studies by his students: a fecal study by
Hunt (published as Hunt & Slack, DX378) and an observational study by Greer as part of the
SAGES team.9 Dr. Slack correctly identified that observational studies of Whooping Cranes
feeding are better to determine diet than fecal analyses due to the difficulty of collecting feces,
and the differential digestibility of food. Tr. 109:16 – 110:22 (Dec. 13). Referring to Greer’s
study, Dr. Slack argued for its importance, claiming “this is certainly what they eat, because you
can see it go down.” Tr. 110:21-22 (Dec. 13). It turns out that, in her videos, Greer never saw
much food actually “go down,” and neither did Dr. Slack or anyone else.
Greer invented an untested technique for assuming specific food consumption from out-
of-focus and long-distance videos of unspecified Crane behavior. Tr. 107:18 – 108:8 (relied on
crane behavior); 261:19 – 265:14 (untested methodology); 258:8 – 261:8 (Greer invented
method) (Dec. 13) (Slack). In the same twelve hours of video that Greer said she observed 3786
food items being consumed, Dr. Chavez-Ramirez could only see one, possibly two food items.
9 Defendants never called the student researcher (Greer) on whose work Dr. Slack so heavily relied. This may have reflected a fear that Dr. Greer could not explain how she derived any meaningful result despite her videos that do not show foods eaten by Cranes, her limited samples, and other significant failures of her methodologies that even Dr. Slack admitted.
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Tr. 79:15 – 80:4 (Dec. 6); PX386. Intervenors GBRA and SARA paid $2.1 million to Dr. Slack
and the SAGES team to answer the question what Whooping Cranes eat. Tr. 143:1-8 (Dec. 13).
Dr. Slack simply failed them when he failed to oversee what his student Greer was doing in the
field. Observational studies could answer the question of both what cranes eat, and how much
they eat. But Greer’s data is far too unreliable for this purpose. The SAGES report was roundly
criticized by Mr. Stehn and by the Texas Parks and Wildlife Department. PX 384; DX394.
Defendants’ experts also rely on the results of the fecal study published in Hunt & Slack.
DX378. But while fecal studies provide information on what cranes eat, and in what proportions,
fecal studies provide very little information about the abundance of each food type, and provide
absolutely no information about whether the crane has sufficient food (of any type) to meet its
needs. Thus, while fecal studies have some value, they are of limited use. For his thesis, Dr.
Chavez-Ramirez combined observations of feeding, and time activity budgets, with fecal studies,
Tr. 294: 2-12; 296: 6-17 (Dec. 5), and concluded “[t]he energetic contribution of blue crab was
by far the most important one during my two years of study out there.” Tr. 296: 22-23 (Dec. 5).
Defendants’ post-trial brief is plagued with misleading citations to evidence that does not
support their proposition. For example, Defendants write that Dr. Chavez-Ramirez could not
identify which foods were in short supply and caused food stress during 2008-2009. D.E. 320 at
29. This testimony concerned delayed molting and what Dr. Chavez-Ramirez actually said was
“[f]eather growth is dependent on food. I can’t say what food they need for that. Any amount of
food -- more food, more feather growth. Less food, less feather growth.” Tr. 228: 17-19 (Dec. 6).
Similarly, to say, as they do, that TAP’s entire case on food shortages is based upon the
opinions of Dr. Chavez-Ramirez simply ignores the testimony and writings of Mr. Stehn and
USFWS. D.E. 320 at 29. USFWS documents and Stehn’s testimony also clearly confirmed the
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opinion and observations that low inflows modify Whooping Crane habitat, leading to food
stress. E.g, PX11 at 21-22; PX25. Moreover, Mr. Stehn and Dr. Chavez-Ramirez were the only
experts to testify as to what they actually saw at the critical times.
Defendants boldly claim TAP’s contention that lack of blue crab and wolfberries cause
food stress “is not only unsupported, but it is scientifically indefensible.” Unfortunately for
Defendants, their exaggerated rhetoric falls flat because TAP’s contention happens to also be the
official contentions of USFWS, the Canadian Wildlife Service, and the Recovery Team. PX11 at
20-21; PX25. When Defendants attempt to compare crab abundance between the 2008-2009 and
2009-2010 winters, they rely on USFWS documents but woefully misrepresent the data when
they claim that the later year had lower numbers. D.E. 320 at 30. As the record clearly
established, USFWS stated “Not enough crab sampling was done to quantify differences in crab
availability between [the two winters].” DX7 at TAP-007021. Defendants willfully ignore this.
Defendants also ignore the explanatory testimony of Dr. Chavez-Ramirez, and USFWS. Tr. 190:
6 – 191: 1 (Dec. 6); DX7 at TAP-007021–22.
Moreover, contrary to what Defendants argue, the low mortality of Cranes in 2009-2010
directly supports TAP. Although that winter started with low inflows and higher salinities in
October-November 2009, Trungale’s modeling demonstrated how bursts of freshwater rapidly
brought the salinity back to healthy ranges. Tr. 14: 5:20 (Dec. 8) (Trungale); PX96. Overall, the
inflows for 2009-2010 should be considered high and, as expected, associated with low mortality
that winter. PX266. Mr. Trungale’s modeling confirms that a short concentrated burst of
freshwater (such as from a release from a dam) can greatly reduce high bay salinities, which
might ultimately be relevant in an HCP.
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The testimony of defense witness Dr. Stroud, who was asked to interpret the results of
crane necropsies, helps demonstrates what happens to the Cranes when their habitat is
significantly altered. Dr. Stroud agreed that both necropsies determined that the two cranes were
emaciated. Tr. 60: 1-23; (Dec. 13) One adult carcass was only 4465 grams (compared to 6000
grams for a healthy adult bird), and was found to have “no fat” according to Dr. Stroud. Tr. 60:
13-23 (Dec. 13) (“I concur. It was emaciated.”); DX118 at NWHC000068 (“There is no
subcutaneous or abdominal fat. There is serious atrophy of coronary fat.”). The second carcass, a
juvenile, was severely emaciated as well as dehydrated. Tr. 64: 9-12 (Dec. 13) (Stroud), DX119
at NWHC000090 (“There is no subcutaneous, intraabdominal or pericardial fat and pectoral
muscle atrophy is severe. The tissues are tacky, suggesting dehydration.”). In the necropsy
reports, “emaciation” and “severe emaciation” are identified as one of the causes of death.
DX118 at NWHC000073; DX119 at NWHC000094. Dr. Stroud agreed that a necropsy finding
of emaciation can be associated with food shortage:
Q. Now, would you agree that emaciation and -- well, emaciation would be certainly associated with food shortage.
A. Emaciation is only -- or food shortage is only one of many potential causes of emaciation.
Q. But you agree that’s one that could certainly contribute to emaciation.
A. Yes. The lack of food, i.e. starvation, could result in emaciation.
Tr. 65: 7-14 (Dec. 13) (Stroud).
While testifying about the cause of death of one of the necropsied cranes, Dr. Stroud
stated that the “final diagnoses” listed in the report were in fact chronological (i.e. laceration led
to infection, which led to necrosis and therefore the bird was unable to feed normally). Tr. 38: 2-
17 (Dec. 13). However, the necropsy report does not identify any chronology. To the contrary,
the five final diagnoses are listed “in order of importance.” DX118 at NWHC000073. Tr. 38: 24
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– 40: 4 (Dec. 13) (Stroud). Dr. Stroud agreed with the Court food shortages can lead to a
compromise immune system resulting in infections and death:
THE COURT: … can’t you get immune system problems and infection problems secondary to an already-compromised body from emaciation or thirst?
THE WITNESS: That would not be what I see written --
THE COURT: I’m not asking what you see. I’m just saying: Isn’t that something that can happen to a compromised body --
THE WITNESS: Yes.
THE COURT: -- that is not getting adequate food or water? You can get these infections and die.
THE WITNESS: Yes. Nutrition can be a factor in having --
THE COURT: A compromised immune system.
THE WITNESS: -- a compromised immune system.
Tr. 45: 12-25 (Dec. 13). Despite this admission, Dr. Stroud later refused to answer counsel’s
same question of whether dehydration and lack of food source can contribute to compromising
the host, and lead to disease. Tr. 65: 15 – 66: 14 (Dec. 13).
C. Defendants’ alternative explanations do not undercut TAP’s proof at trial.
Defendants offer twenty-seven alternative explanations without proving any of them.
Their arguments go to the weight of the evidence, not its admissibility. Defendants’ approach is
scattershot and disjointed. Defendants repeatedly assert that the “evidence showed” any effect is
“likely caused by” their alternate theory. However, Defendants fail to establish a reasonable
basis for each of their speculative alternate explanations, and never present sufficient evidence in
support of them.
If Defendants are to be believed, everything else except water diversions are responsible
for the loss of 23 cranes in the 2008-2009 winter. According to Defendant-Intervenors, water
diversions are possibly the only thing to not cause a problem from the cranes. Indeed, in an
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attempt to reach for the heights of absurdity, Defendants presented testimony from Mr. Vaugh
attempting to imply that increased water consumption caused both an increase in the Whooping
Crane flock, and a reduction in crane mortality. Tr. 193: 6 – 194: 4; (Dec. 14), DX242–243. Of
course, Mr. Vaugh later admitted he did not mean to imply any cause and effect relationship. Tr.
217: 25 – 218: 7 (Dec. 14). Nevertheless, it typifies Defendants approach to this case: deny, then
when that fails, blame anything and everything else with increasing speculation.
1. Speculation related to Crane mortality.
After denying that more than four cranes died in the winter of 2009-2009, Defendants fall
back on a series of alternate, unsupported explanations for the causes of death. As previously
explained, Dr. Stroud admitted that both carcasses were emaciated, emaciation can be the result
of food shortage, and food shortage can compromise the immune system and lead to infections
and death. Tr. 60: 1-23; 64: 9-12; 65: 7-14; 45: 12-25 (Dec. 13) (Stroud). Dr. Stroud stated that a
knee injury prevented one Crane from feeding leading to its emaciation, D.E. 320 at 33, but this
chronology is not in the necropsy report so amounts to mere speculation. Tr. 38: 24 – 40: 4 (Dec.
13). Similarly, Dr. Stroud speculated that parasites and bacteria caused the emaciation of the
second carcass, but once again, the reverse is possible too. Tr. 45: 11-25 (Dec. 13) (Stroud)
(agreeing that a bird can acquire immune system problems and infection problems secondary to
an already compromised body from emaciation or thirst). Defendants refer to the Recovery
Plan’s list of five known causes of death of Cranes at Aransas as if they were proof of the only
possible causes. D.E. 320 at 34; DX 155 at 17. This list was for eight carcasses that were
recovered and necropsied, PX11 at 5, and is obviously not meant to be an exclusive list.
Defendants attempt, and fail, to build a theory out of the high summer mortality that
preceded the winter of 2008-2009. D.E. 320 at 35-36. As Defendants admit, no evidence was
presented about any cause of this mortality, and there is no evidence that the prior mortality has
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anything to do with the events the following winter. Defendants also attempt to cast blame on
USFWS for using feeders to provide supplemental food for the Cranes in 2008-2009, and for
failing to conduct a full veterinary investigation during the bad winter. D.E. 320 at 36. The
feeders were only used by one fifth of the flock, yet the mortality was spread across the entire
range and distributed over the whole winter. PX377. It is improbable that a bad batch of corn
could have this widespread impact. USFWS did conduct an investigation of the events as they
unfolded—they called Dr. Chavez-Ramirez to investigate the habitat conditions and food
availability. Tr. 67: 5-25 (Dec. 6) (Chavez-Ramirez). This would indicate that the Refuge
Biologist, Mr. Stehn, correctly understood that the mortality and unusual Crane behaviors were
related to food and habitat, not some mysterious disease, infection or other cause.
2. Theories related to increased salinity
In a blatant attempt to cast confusion where there is none, Defendants urge the Court to
accept that the salinity of San Antonio Bay is not determined by reduced freshwater inflows, but
rather caused by a litany of other factors. D.E. 320 at 19-21. Defendants identify temperature,
tides, evaporation and other climatological conditions as possible alternative causes. Sometimes
Defendants offer no evidence, just a bald assertion. E.g. D.E. 320 at 17 (asserting the relevance
of rainfall as the determinative factor). Sometimes Defendants ask a witness if one of these
factors affects salinity, call it an admission, then accuse Plaintiff of failing to disprove the impact
of that factor, even when the factor obviously helps explain why inflows matter. E.g. Tr. 239: 7-
19 (Dec. 7) (Montagna) (“Q. Don't you agree that evaporation affects salinity levels? A. Yes. Q.
Do you also agree that temperatures affect salinity? A. Indirectly.”). For these alternate theories,
Defendants never establish that any of these factors were different during 2008-2009, or for that
matter, any other years of high salinity or high Crane mortality. This silence must be weighed
against the overwhelming evidence presented by Plaintiff concerning diversions and low inflows,
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including the salinity modeling of Mr. Trungale, and the statistical correlations of Dr. Sass and
Dr. Ensor.
Similarly, Defendants’ attempts to blame the drought for the Crane deaths also fail.
Plaintiff has always asserted that it is during droughts, when river flows are low, that TCEQ
Defendants are required to regulate water diversions in a manner to avoid further reductions in
flows that cause a prohibited “take” of Cranes. Importantly, the evidence presented by Mr.
Trungale establishes that during the drought of 2008-2009, the acts and omissions of TCEQ
Defendants further reduced freshwater inflows to such an extent that they significantly modified
Whooping Crane habitats and caused a take.
3. Theories related to decrease in wolfberry and blue crab abundance
Defendants present a host of alternative theories as to why, they say, anything but salinity
caused the decrease in blue crab and wolfberries—tides, crabbing, temperature, dissolved oxygen
and climate. D.E. 320 at 21-27. Again, Defendants never establish that any of these factors were
different during 2008-2009, or any other years of high salinity or high Crane mortality. Weighed
against the evidence presented by Plaintiff concerning blue crabs and wolfberries, including the
opinion and data of Dr. Montagna, and the statistical correlations of Dr. Sass and Dr. Ensor,
Defendants’ alternative theories again fail.
Water levels, tides and temperatures fluctuate every winter, but testimony established that
none of these factors were out of the ordinary in 2008-2009. Tr. 32: 3-16 (Dec. 7) (Stehn).
Testimony established that while bay salinity is obviously driven by inflows, two other
variables—dissolved oxygen (in the context of nutrient loading) and temperature—are also
related to inflows. Tr. 247: 22 – 248: 17 (Dec. 7) (Montagna), PX61, 247. In the marsh, Mr.
Stehn explained that salinity was the important factor that varied from year to year:
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A. And always apparently every cycle two things affect the blue crab every year, and that's low tides and low temperature.
…
THE COURT: So when you add high salinity to that in a drought year, does that make a difference?
THE WITNESS: Yes, because it's my feeling that there aren't as many blue crabs to start with.
THE COURT: Well, is that a feeling or something you've observed?
THE WITNESS: I've observed it.
THE COURT: Okay.
THE WITNESS: I've observed it. This exhibit that was just introduced, I went through 20 years of my observations, and I tried to relate -- I divided those 20 years into what I considered high Aransas mortality winters versus low mortality winters for the cranes. And during all of those high mortality winters, and there were 7 of them in those 20 years, I found reduced blue crab numbers and very high salinities…. And I think my mortality rate was defined as greater than 1.5 percent of the flock. So I see a strong correlation between the blue crabs and the salinities. And when they're not -- when the blue crabs are scarce and when salinity is high, I expect and have found consistently that the food supply is reduced for the whooping crane.
Tr. 76: 24 – 78: 7 (Dec. 7) (Stehn). SARA witness, Dr. Davis confirmed that his studies
established that summer salinity (soil and bay) was the important factor in wolfberry fruit
production. Tr. 66:15 – 70:22 (Dec. 15). And in 2008-2009, salinity was very high, wolfberry
production was low, and blue crabs were scarce. Tr. 12: 15 – 12: 4 (Dec. 8) (Trungale); PX90;
113; Tr. 28: 22 – 29: 7; 29: 19-25 (Dec. 7) (Stehn).
Defendants argue that illegal and commercial crabbing is the reason why blue crabs were
not abundant in 2008-2009. D.E. 320 at 24-26. However, no evidence was presented to show that
crabbing activity was any different in 2008-2009 than in other years. E.g. DX 261 (showing only
average catches between 1983-2005). USFWS reported that the numbers of commercial crabbers
in the area "continued to decline." DX6 at TS008905. USFWS also reported that three times the
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number of volunteers participated in the pickup in 2008-2009, DX6 at TS008904, so it is not at
all surprising that more traps were found that winter. So while the level of crabbing activity may
have an impact, no evidence established any relationship with high whooping crane mortality or
low blue crab availability that winter.
4. Theories related to reasons Whooping Cranes leave territories
Defendants urge the Court to ignore the testimony of Mr. Stehn and Dr. Chavez-Ramirez
regarding the need of Cranes to leave their territories and seek freshwater when salinities are too
high. D.E. 320 at 37. Defendants complain that there has been no “scientific study” to confirm
these observations. But this is not the standard of proof. Evidence can establish scientific and
biological facts and meet the burden of proof without the need for a published scientific study.
Factual observations conducted by experienced field researchers, salinity measurements
using the foolproof refractometer and the opinions of reliable expert witnesses establish that the
Cranes do in fact leave their territories when salinities reach a threshold. Tr. 120:7 – 122:2;
126:2-9; 126:25 – 127:5; 127:15-19 (Dec. 6) (Chavez-Ramirez); 125:2 – 126:4 (Dec. 7) (Stehn).
Defendants do not contradict these observations, but merely complain about the lack of a full
study, which, according to Defendants, would involve Dr. Chavez-Ramirez simultaneously
measuring salinity and following each Crane in flight. D.E. 320 at 37. Defendants cite Mr.
Stehn’s flight observations of low use of freshwater on the last three flights in 2008-2009 winter.
D.E. 320 at 37. Defendants seek to portray a dispute between Mr. Stehn and Dr. Chavez-
Ramirez, when in fact there is none—because the flight reports clearly establish high Crane use
of freshwater ponds on all the other eight flights. DX127–134 (eight flight reports between Nov.
14, 2008 and Feb. 24, 2009). Defendants offer no evidence to contradict the observations over
many years.
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Additionally, Defendants argue “it is possible” that the reason the Cranes left their
territories is to seek food at supplemental feeders or prescribed upland burns, and they did not
leave to seek freshwater. D.E. 320 at 38. (citing testimony of Dr. Slack). These possible
explanations are not well supported by observations, and therefore carry little weight. They are
also contradicted by Mr. Stehn’s reports in other years when there was also Crane use of upland
burns, but not the use of freshwater as in 2008-2009. E.g. DX182 at TS009244 (2007-2008).
Evidence showed that only one fifth of the flock actually used the feeders in 2008-2009. Tr. 27:
21-23 (Dec. 7) (Stehn). Stehn also testified that those few Cranes took several weeks to discover
the feeders and did not really start using them until February, Tr. 27: 17-21 (Dec. 7), so feeders
do not explain Crane movements before that date, or in the subsequent year when feeders were
not used. DX156 at TS020664.
V. RESPONSE TO ARGUMENTS ON REMEDY
The TCEQ Defendants assert a parade of horribles should TAP prevail, such as impacts
to existing water users “so that water can flow through to the bays.” 10 D.E. 317 at 2. But equally
important are the consequences if the TCEQ Defendants do not make appropriate adjustments to
their water management—drying out over-appropriated rivers in order to satisfy the thirst of all
existing users, killing a bay, and altering an ecosystem to such a degree that an endangered
species reaches extinction. TCEQ views water only in terms of permits, causing it to make an
argument that TAP seeks a “super-priority water right” for the Whooping Crane. This is
suggestive of TCEQ’s approach to water—that it is only something to be permitted. But the
Water Code talks about water as a resource also to be conserved. TEX. WATER CODE §§ 5.012,
5.120.
10 TCEQ Defendants also complain that TAP should have filed “a more traditional ESA lawsuit, rather than suing [them].” D.E. 317 at 1. Presumably, they suggests a suit against individual water users. But such water users do not have the powers to undertake a systematic solution throughout the river basin.
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The TCEQ Defendants accuse TAP of changing its position on relief, even in
representations before the Fifth Circuit. D.E. 317 at 2. This is of course incorrect, as the footnote
from that Fifth Circuit opinion speaks for itself, and there, because the issue was intervention,
TAP maintained it was not targeting a specific water user (such as a particular member of TCC).
What belies the parade of horribles advanced by the TCEQ Defendants is that they themselves
have engaged in an HCP planning process in the context of the Edwards Aquifer—they have
seen how Section 10 of the ESA can play out for stakeholders. Moreover, the Defense witness
David Sunding testified to the success of HCPs, foreclosing the protestations of the TCEQ
Defendants that an HCP would be “pointless.”
A. TCEQ powers support use of an HCP and, Defendants’ protests notwithstanding, allow regulation of water use under permits, to protect Cranes.
TAP’s first post-trial brief reviewed existing authority under which TCEQ can employ an
HCP or other collaborative process to meet the needs of Whooping Cranes. D.E. 318 at 37-40.
The statutory basis for TCEQ’s broad authority was also discussed above, Section IV-B-1. The
TCEQ Defendants’ powers reflect the breadth and force of their mandate to protect state-owned
water held in “trust.” Texas holds “every flowing river”—and other surface water—as “the
property of the state.” TEX. WATER CODE § 11.021(a). The “waters of the state are held in trust
for the public.” TEX. WATER CODE § 11.0235; accord Watts v. State, 140 S.W.3d 860, 865 (Tex.
2004). And, “the right to use state water may be appropriated only as expressly authorized by
law.” TEX. WATER CODE § 11.0235; accord Watts, 140 S.W.3d at 865. The Legislature used
plain language to make clear that Texas never has ceded ultimate authority over this essential
natural resource.
Even TCEQ’s favored Chapter 11 supports development of a protection plan for
Whooping Cranes. The principle of first-in-time, first-in-right applies—as the statute itself
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states—between permit holders, and not between a permit holder and the TCEQ, TEX. WATER
CODE § 11.027; it does not justify permanent denial of water for essential uses that have not even
been considered for allotments from rivers. TAP proved TCEQ’s use of other such principles to
override first-in-time, first-in-right, in some circumstances, previously briefed. D.E. 318 at 18
(e.g. City of Kerrville, and temporary permits for oil & gas activities). In addition to past
practice, every Texas certificate of adjudication and permit state that TCEQ retains overarching
rights to regulate otherwise authorized water use. Moreover, whatever the current appropriation
among current users, future permits may have conditions to protect the Cranes.
In another context, Chapter 11 encourages development of new ways to secure such
needs: “The legislature finds that … (2) in those basins in which the unappropriated water that
will be set aside for instream flow and freshwater inflow protection is not sufficient to fully
satisfy the environmental flow standards established by the commission, a variety of market
approaches, both public and private, for filling the gap must be explored and pursued.” TEX.
WATER CODE § 11.0235 (d-3)(2).
Also, the TCEQ Defendants must inform themselves of critical environmental needs
demanding surface water; that is, the TCEQ Defendants have an obligation to ask themselves
whether their oversight of water use impacts the natural resource and environment of the state of
Texas, which obviously would include state and federally protected endangered Whooping
Cranes. See TEX. WATER CODE § 5.119 (the “commission shall be knowledgeable … of the
needs of the state concerning the use, storage and conservation of water and the use and
conservation of other natural resources and of the need to maintain the quality of the
environment in the state”).
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TCEQ’s manifest authority over surface water use, as well as venerable police powers,
should preclude any claim of taking if Texas acts in compliance with the ESA, particularly if the
HCP process results in a well-designed comprehensive program that protects Cranes. But the
Court need not in any event reach that premature question. Suffice to say, even if the Fifth and/or
Fourteenth Amendments require just compensation for some action, nothing in the ESA
conditions any duty to comply on the lack of a taking.11 The bottom line is that the TCEQ
Defendants cannot deny their relevant authority, which encompasses multiple options that merit
consideration, as discussed elsewhere by TAP.
B. TCEQ’s heads-in-the-sand approach deserves no deference.
Despite the ESA’s plain language and the Supremacy Clause, despite plain Texas laws,
statutes, and TCEQ regulations, the TCEQ Defendants assert that this Court must defer to its
self-serving assertion of powerlessness. Fortunately, TCEQ is wrong. When the violation of a
federal statute is at stake, the district court has no obligation to defer to the self-serving
litigation-driven interpretations of state law from the agency charged with violating that federal
statute.
Further evidence that TCEQ’s interpretations are litigation driven is that none have ever
appeared in writing before this lawsuit. The TCEQ Defendants cannot claim the benefit of
having adopted official policy on any relevant point where it now denies authority to protect
Cranes. The Texas Water Code, § 5.105 expressly requires that: “Except as otherwise
specifically provided by this code, the commission, by rule, shall establish and approve all
general policy of the commission.” (Emphasis added). The TCEQ Defendants have not
purported to adopt any relevant rules that support its policy, and indeed, TCEQ provided no
11 “The plain intent of Congress in enacting this statute was to halt and reverse the trend towards species extinction, whatever the cost.” TVA v. Hill, 437 U.S. 153, 184 (1978).
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relevant writings on policy that deny power that might be asserted to help Cranes. Thus some of
TCEQ’s asserted practices appeared to form on the fly, as TCEQ sought to defend its head-in-the
sand position in this case.
TAP recognizes that TCEQ has followed some of its misguided practices even well
before this litigation. For example, TCEQ is required to consider impacts on bays and estuaries
when it grants permits. TEX. WATER CODE § 11.147(b). But, as Mr. Chenoweth testified, TCEQ
long has applied this rule only to affect permits within 200 river miles of the coast, even though
nothing precludes broader application. Tr. 158:11 – 159:1; 169:2-6 (Dec. 9). Also, the TCEQ
Defendants argue that, in managing water rights, the TCEQ “practice” is to look only at Chapter
11 of the Water Code. D.E. 317 at 10. This disregards the plain text of many statutes, and it also
disregards TCEQ practice to cite Texas Water Code § 5.102 when promulgating water use rules.
Defendants have admitted that TCEQ has not, previously, taken into account the needs of
Whooping Cranes to secure freshwater flows to San Antonio Bay. Tr. 163: 16-23; 164: 13-18;
234: 12 – 235: 1; 235: 22-25; 236: 3-4 (Dec. 9) (Chenoweth). However, Plaintiff has identified
multiple possible actions that TCEQ can take, and additional such options can be developed in an
HCP, a Recovery Implementation Program (“RIP”), or similar process.
C. A judgment by this Court in TAP’s favor would not be “pointless.”
The TCEQ Defendants allege that a ruling by this Court would be “pointless.” D.E. 317
at 21. This bears three responses. First, a final judgment by a federal court that there has been an
unlawful “take” under the ESA would have consequences that the TCEQ Defendants could not
ignore. Second, as discussed at trial, an HCP was developed following ESA litigation over
excessive pumping from the Edwards Aquifer. The State of Texas responded to the litigation
with legislation mandating a RIP process and an HCP. The TCEQ Defendants, other state
agencies, as well as Intervenors GBRA and SARA, readily participated. Thus, the TCEQ
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Defendants know what can happen with litigation and what happens in the HCP process. Finally,
it is a baseless challenge to the jurisdiction of a court for the TCEQ Defendants to call a
judgment of this Court “pointless.”
D. The TCEQ Defendants’ proposed remedies are by themselves insufficient.
The TCEQ Defendants propose three remedies that they correctly identify as
“insufficient.” D.E. 317 at 23. They discuss supplemental environmental projects (“SEPs”)—but
to use state funds to acquire additional property, and thus habitat, for the Cranes will not help the
Cranes if estuarine water surrounding the habitat is too saline. The remedy must be about water.
The TCEQ Defendants also discuss conducting an inventory of domestic and livestock (“D&L”)
users. They quip that TCEQ is “not authorized” to require D&L users to register, but they do not
identify anything that prohibits them from requiring reporting, when the TCEQ Defendants
themselves manage the water resource (D&L users are exempt from permitting). Finally, the
TCEQ Defendants discuss cancellation of unused permits. TAP believes this is a good first step,
and this underscores why a HCP needs to be in place, so that any water that is “found” through
cancellation does not immediately get allocated to users such as Intervenors with no special
conditions that would ensure protection for the Whooping Cranes during times of low flows.
E. Ultimately, the TCEQ Defendants must comply with federal law.
Because the Legislature authorized TCEQ to follow the ESA (Tex. Water Code §
5.102(a)), this Court need not reach a troubling assertion made by the TCEQ Defendants, who
baseless argue that limits on their statutory powers preclude compliance with federal law.
TAP has previously briefed the operation of the Supremacy Clause in the context of this
lawsuit. D.E. 227 at 17 (citing U.S. Const. art. VI, cl. 2; Lorillard Tobacco Co. v. Reilly, 533
U.S. 525, 540-41 (2001) (Supremacy Clause is the “relatively clear and simple mandate” that
allows Congress to “pre-empt[] state action in a particular area”); Morris v. Jones, 329 U.S. 545,
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553 (1947) (proclaiming that when state law “collides with the federal Constitution or an Act of
Congress ... the action of a State under its police power must give way by virtue of the
Supremacy Clause”)). The Supremacy Clause assures the force of the ESA, notwithstanding
contrary state law. See Strahan, 127 F.3d at 168 (observing that Massachusetts wisely did not
contend that its “commercial fishing regulations, to the extent that they may conflict with the
ESA, survive Supremacy Clause analysis”).
TAP has cited numerous cases recognizing that state regulators can be liable under the
ESA; the TCEQ Defendants call these cases “outliers”—but cite no contrary precedent. And
TAP counsel knows none. Instead, case laws shows that a federal court in an appropriate case
can issue an injunction prohibiting a state or local governmental body from continuing to enforce
a particular existing regulatory program until it can do so without violating the ESA’s takings
prohibitions, Defenders of Wildlife v. EPA, 882 F.2d 1294, 1298 (8th Cir. 1989), or an injunction
requiring state or local governmental officials to find a means of bringing a governmental body’s
regulatory program into compliance with federal law, Strahan, 127 F.3d at 170.
VI. RESPONSE TO ARGUMENTS ON STANDING
The district court ruled that TAP had satisfied injury in fact and redressibility. D.E. 270 at
7, 10. Testimony at trial confirmed the summary judgment evidence. The testimony established
the injuries of TAP’s members. The Defendants continue to make meritless arguments
concerning the status of the Whooping Crane, suggesting that TAP’s members can suffer no
injuries if at least one Whooping Crane is alive. However, this misunderstands case law on
injury-in-fact. A plaintiff suffers injury if the activity in question will harm the object of a
plaintiff’s desired viewing. See D.E. 227 at 6 (“[E]nvironmental plaintiffs adequately allege
injury in fact when they aver they use the affected area and are persons for whom the aesthetic
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and recreational values of the area will be lessened’ by the challenged activity.”) (citing Friends
of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 183 (2000)).
As discussed in TAP’s closing arguments, the district court order also ruled that TAP had
established causation insofar as the TCEQ Defendants actions cause low flow conditions, but
that TAP needed to demonstrate that the low flow conditions lead to the death of the Cranes.
D.E. 270 at 13, 17. This of course is the causation TAP proved at trial and has further explained
in its Closing Brief and this Response.
VII. CONCLUSION
For the foregoing reasons, TAP has proved that the “take” of the 23 endangered
Whooping Cranes during the winter of 2008-2009 was proximately caused by the TCEQ
Defendants. TAP respectfully requests any and all relief pled and deemed necessary and
appropriate by the Court. TAP understands that specific remedies may be one of the most
difficult aspects of this case, and TAP is willing to present additional briefing on remedies if
desired by the Court.
Respectfully submitted, BLACKBURN CARTER, P.C.
by: s/ James B. Blackburn, Jr. James B. Blackburn, Jr. Attorney in charge TBN 02388500 Southern District of Texas Bar No. 7416 Charles Irvine TBN 24055716 Southern District of Texas Bar No. 675029 Mary B. Conner TBN 24050440 Southern District of Texas Bar No. 1093200 4709 Austin Street Houston, Texas 77004 713/524-1012 713/524-5165 (fax)
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OF COUNSEL: Jeffery Mundy TBN 14665575 Southern District of Texas Bar No. 10632 The Mundy Firm PLLC 8911 N. Capital of Texas Highway, Suite 2105 Austin, Texas 78759 512/334-4300 512/334-4256 (fax)
OF COUNSEL: David A. Kahne TBN 00790129 Southern District of Texas Bar No. 17432 LAW OFFICE OF DAVID A. KAHNE P.O. Box 66386 Houston, Texas 77266 713/652-3966 713/652-5773 (fax)
Counsel for Plaintiff The Aransas Project
CERTIFICATE OF SERVICE
On this 9th day of May, 2012, a true and correct copy of the foregoing PLAINTIFF THE ARANSAS PROJECT’S CONSOLIDATED RESPONSE TO POST-TRIAL BRIEFS was served on all parties/attorneys of record via the Court’s CM/ECF System. s/ James B. Blackburn, Jr. James B. Blackburn, Jr.
MARK WALTERS, Assistant Attorney General JOHN HULME, Assistant Attorney General DAVID MARSHALL COOVER, III, Assistant Attorney General CYNTHIA WOELK, Assistant Attorney General Office of the Attorney General Environmental Protection Administrative Law Division P.O. Box 12548 Austin, Texas 78711-2548 EDWARD F. FERNANDES Hunton& Williams LLP 111 Congress Ave., Ste. 1800 Austin, Texas 78701 KENNETH R. RAMIREZ Law Offices of Ken Ramirez 111 Congress Avenue, 4th Floor Austin, Texas 78701 EDMOND R. MCCARTHY, JR. Jackson, Sjoberg, McCarthy & Wilson, LLP 711 West 7th Street Austin, Texas 78701
51.
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