Ken Paxton

Wednesday, March 20, 2013

Attorney General Asks Federal Appeals Court for Emergency Stay in Whooping Crane Case

AUSTIN -- Texas Attorney General Greg Abbott today sought an emergency-stay from the U.S. Court of Appeals for the Fifth Circuit, asking the federal appeals court to set aside the lower court’s ruling in the whooping crane case. Attorney General Abbott issued the following statement on the issue:

Given the substantial threat that the lower court’s decision poses to farmers, ranchers and communities along these significant Texas rivers, the State cannot afford to wait for the lengthy appeals process to play out so we are seeking an emergency stay to set aside that legally flawed ruling as we vigorously pursue an appeal. The courts have no authority to command that state officials involuntarily submit to a federal regulatory regime, so today’s appeal seeks to avoid wasting taxpayer dollars on a costly bureaucratic requirement that should never have been ordered in the first place. It is important to remember that an entire federal bureaucracy is devoted to protecting endangered species like whooping cranes yet that agency is not even involved in this case and has not objected to the usage of water in these rivers. The environmental groups that brought this lawsuit clearly seek to federalize our Texas rivers, but the State is committed to overturning the district court’s order and, given the order’s significant legal flaws, is hopeful that much-needed relief will be granted on appeal.

The State’s brief to the Fifth Circuit explains that the lower court’s ruling must be set aside because it will cause irreparable harm to the farmers, ranchers and communities along the Guadalupe and San Antonio Rivers as well as the State of Texas. Further, the State’s stay application details why the district court’s decision is legally flawed and thus likely to be overturned on appeal. For example, the district court improperly ordered the State to apply for permits from the federal government despite the fact that courts lack the authority to compel state officials to participate in a voluntary federal permitting regime.

Excerpts from the State’s Emergency Stay Application:

The district court interprets the Endangered Species Act to require state officials to maintain and enforce state-law prohibitions against water usage that purportedly harms an endangered species, holding that permits must be denied and state-law prohibitions on water use maintained whenever water is used in a manner that violates the Endangered Species Act. This approach contradicts basic principles of federalism.

the theory of causation adopted by the district court makes state officials legally responsible for practically every action undertaken by one of their State’s residents. A State will cause’ any conduct that it fails to criminalize or prohibit, even when that conduct is undertaken by autonomous private actors. That theory of state action that has been emphatically rejected by the Supreme Court for nearly 130 years, and no federal court can graft those understandings of state responsibility onto the Endangered Species Act in the face of these binding Supreme Court pronouncements.

The district court’s Memorandum Opinion seeks to protect the whooping crane without any regard to the State’s municipal, agricultural and industrial needs, or the need for rational policymaking that weighs interests in species preservation against other important considerations. The public interest involves more than a blinkered determination to protect an endangered species without regard to costs. Prohibiting TCEQ from issuing new permits to persons seeking to use water from the Guadalupe and San Antonio Rivers is an extreme response that elevates the interests of whooping cranes over everyone else in Texas who needs to use the rivers.