PLAINTIFF THE ARANSAS PROJECT’S … - TAP's...THE ARANSAS PROJECT, Plaintiff, v. BRYAN SHAW, ... MARY B. CONNER ... C. Proximate cause may be proven with either direct or circumstantial

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

Case 2:10-cv-00075 Document 325 Filed in TXSD on 05/09/12 Page 1 of 56

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.


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.


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.


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 § 5.015.....................................................................................................23

Texas Water Code § 5.101.....................................................................................................22

Texas Water Code § 5.102.....................................................................................................23


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.


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.


https://ecf.txsd.uscourts.gov/doc1/179016018747?page=11

“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.


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.




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.






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.


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.



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.



https://ecf.txsd.uscourts.gov/doc1/179014859388

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.



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.




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

10.





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

11.




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

12.




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,

13.



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

14.




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

15.



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.”

16.


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.

17.




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.

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.

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.

19.


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

20.


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.

21.



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]”).

22.


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.

23.


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

24.


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.

25.




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).

26.








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

27.




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.”

30.





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

32.









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.

33.


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

34.





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.

35.



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

36.


– 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

37.


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

38.





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,

39.





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).

46.


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,

48.




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

49.






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

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