Thursday, April 4, 2013

Water, Whooping Cranes, and the ESA

Three weeks ago, a federal district court in Texas issued an important ESA decision.  The Aransas Project v. Shaw also is a very long decision—124 pages, to be exact—so I’ve been a bit slow to get a blog post up.  Despite its daunting length, the case is important reading for anyone interested in water management or the ESA.  It’s also a rather intriguing case study of the use—both successful and badly botched—of expert testimony in environmental litigation.

Whooping cranesThe case arises out of water management controversies in Texas.  According to the plaintiffs, the Texas Commission on Environmental Quality and its fellow defendants had taken whooping cranes in violation of section 9 of the Endangered Species Act.  They had done this, the plaintiffs argued, by allowing excessive water withdrawals from the river systems that feed into the Aransas National Wildlife Refuge, which provides vital whooping crane habitat.  The court agreed, enjoined the issuance of new water permits, and ordered the defendants to prepare a habitat conservation plan and seek an incidental take permit.

That’s a very interesting outcome, because successful section 9 actions against water managers don’t seem to be particularly common.  I haven’t done any sort of rigorous survey, but my impression, based on working as a water lawyer and then on my academic research into related ESA questions, is that environmental groups have gained much more leverage through ESA section 7.  Indeed, in the Southeast’s longstanding Apalachicola-Chattahoochee-Flint controversy, similar take claims brought against upstream water managers failed.  See Alabama v. Army Corps of Engineers, 441 F. Supp. 2d 1123 (N.D. Ala. 2006).

So could this case signal the emergence of a new front in the ESA/water allocation wars?  My suspicion is that several factors will make these plaintiffs’ success difficult to replicate.  In no particular order, those factors are:

The extraordinary level of data available to the plaintiffs in this case.  Reading the opinion made me wonder if these whooping cranes are one of the most carefully observed wild animal populations on earth.  As the court describes, scientists have been counting whooping cranes since the 1950s.  Since the early 1980s, scientists—including one of the plaintiffs’ experts—have conducted dozens of monitoring flights every year.  The resulting level of information is exceptional.  Usually population biologists must rely on some combination of observational data (usually limited), proxy indicators like habitat conditions, and computer-based modeling to assess the status of a population.  The resulting uncertainties can limit plaintiffs’ ability to demonstrate causal relationships with enough certainty to support a successful ESA section 9 claim.  With whooping cranes, the circumstances are quite different.

The imbalance of experts.  The plaintiffs had an impressive array of experts on their side.  Here’s the court’s description:

At trial, TAP presented seventeen witnesses, ten of whom were experts, GBRA eight; SARA one: and TCEQ two.   As will be discussed in more detail later, TAP’s experts were world renowned in their respective fields.  Several of TAP’s witnesses hold endowed chairs at prestigious universities, some are MacArthur Fellows, all have published numerous scientific papers in respected journals.  Indeed, one witness, Dr. Ronald Sass, is a shared recipient of the 2007 Nobel Peace Prize for his environmental work.  TAP’s crane experts… have years of study in the field and have devoted their time and energies to the survival of the AWB species.  All of TAP’s experts were accepted as such and the Court finds their testimonies compelling and credible.

The court had less laudatory things to say about the defendants’ experts.  For example:

Dr. Slack did not personally spend any significant amount of time in the field, averaging one day per year over the past fifteen years.  Contrary to the scientific literature, Dr. Slack testified that cranes did not need freshwater because they had functioning supraorbital salt glands which allowed them to secrete excess salt.  However, when questioned further by the Court, Dr. Slack admitted that he had no observational basis for this statement, he had not reviewed literature on cranes and freshwater, and that he “just made it up.” (record citations omitted)

The level of judicial interest.  From the outset, the narrative structure of the opinion (yes, it does have a narrative structure) strongly suggests that someone in the court’s chambers cared very deeply about this case, and probably also about whooping cranes.  Before getting into the procedural history, relevant law, or even the identities of the parties, the opinion spends several pages describing the whooping crane die-off, much like a detective novel beginning with the key murder.  But the real tip-off comes later, in a remarkable passage debunking the work of one of the aforementioned Dr. Slack’s graduate students:

[A key defense report] used a report by Dr. Slack’s graduate student Danielle Greer whose conclusions to the preferred food of whooping cranes was (sic) based on 90 plus hours of video of three crane areas.  The Court watched all of the videos and finds that they were either too blurred to see anything or non-demonstrative of any habit, feeding or otherwise.

So what does this all suggest?  If I’m reading correctly, it shows that when plaintiffs have extraordinarily good monitoring data, an all-star team of experts, poorly prepared experts on the other side, and a judicial chambers where someone—perhaps the judge, more likely a clerk—cares so deeply that she is willing to watch 90 hours of blurry footage of whooping cranes, they can win an ESA section 9 case against upstream water managers.  Absent those circumstances, the challenge might be a bit harder.  That doesn’t mean there won’t be other cases like this.  Conflicts between water withdrawals and the needs of endangered fish and wildlife probably aren’t going away any time soon.  But the case does illustrate the level of scientific and legal work necessary for plaintiffs to prevail.

-Dave Owen

http://lawprofessors.typepad.com/environmental_law/2013/04/water-whooping-cranes-and-the-esa.html

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Comments

Interesting commentary, although as someone who has successfully brought section 9 suits to enforce the ESA, my view is that that plaintiff conservation groups in these types of suits routinely have more credible and better prepared experts simply because independent wildlife biologists (i.e., academics or field researchers with no vested interest in the outcome of the lawsuit) -- who are more likely to persuade courts -- rarely side with defense teams in these suits, but rather with the conservation groups because conservation groups will rarely bring these types of cases without strong facts and science on their side. Further, because these very rare section 9 cases are much more compelling to judges and their law clerks than the normal federal docket, my experience is that they really delve into the issues because it is new and interesting. A good example of this is Animal Welfare Institute v. Beech Ridge Energy, 675. F. Supp. 2d 540 (D. Md. 2009) where a judge invested himself in a trial, carefully sifted through an incredible amount of scientific evidence and live testimony, and ultimately made similar credibility determinations concerning experts as in the TAP case.

Posted by: William Eubanks | May 11, 2013 8:58:24 AM

Awesome report Dave Owen, very well written and so true. TAP and all who worked along with them on this case did an outstanding job and one that will be remembered and studied as a textbook example of doing it the right way! As a Texas resident, I'm more than a little embarrassed that TCEQ, GBRA and even the AG's office are refusing to accept the verdict. But I am convinced that Judge Jack's excellent ruling will hold firm and the Whooping Cranes along with the Aransas Bay area will be protected. Hope this type of protection for water flows to bays and estuaries will continue in Texas. I will remember those fighting against fair water allocation when it comes time to vote! Thanks again Mr. Owen, great article!

Posted by: Patricia Marshall | Apr 9, 2013 9:52:24 AM

Dave, while I appreciate your scholarly attempt at identifying what you consider the unique nature of this case and why the outcome is unlikely to be replicated in similar lawsuits in the future, I would respectfully disagree with many of your observations, although they are no fault of your own. It is apparent that your views were based on a review of the Judge's opinion, as opposed to a thorough review of all court documents, such as the trial testimony itself and the accompanying documents such as the various expert reports. Although such an approach is understandable and typically would (and should) seem a reasonable and simple alternative to an exhaustive review of the trial documents, unfortunately in this case, the opinion of the Judge so botched the basic facts of the case, that almost any interpretation of the case based solely on a review of the Judge's opinion is guaranteed to misinterpret what actually happened. As somebody very familiar with this trial, let me point out some examples. First, I would strongly disagree with the suggestion that there was an "extraordinary level of data available to the plaintiffs in this case." To the contrary, almost the entire case was based upon assumptions, speculation, and anecdotal observations (in essence, exactly the low-quality information you indicated typically aren't persuasive enough to result in a successful ESA Section 9 claim). The basis of the case was that 23 whooping cranes died during the winter of 2008-2009, but only 4 carcasses or partial carcasses were found, with the other 19 cranes only presumed dead based on an inability to find them during limited aerial surveys that winter. Your comment that "dozens of monitoring flights" were conducted annually by refuge biologists was generally true two decades ago, but during the year in question, the biologist conducted only about half that total, only 4 or 5 of which he considered reliable. So it is entirely conjecture that 19 of those birds died at all, and for the other 4, necropsies were performed on 2 of those birds and did not reveal any information suggestive that low river flows led to death (one bird had a disease, the other an injury leading to their deaths). So there was not an extraordinary level of data about the birds that winter, just speculation that they died and what caused the deaths. Because the claim of an ESA "take" in this case was not a direct take, but rather a take based on an indirect chain of events the plaintiffs needed to demonstrate (e.g., low river flows caused increased marsh salinities which reduced blue crab populations and made it harder for the cranes to drink freshwater, thus forcing the cranes to the uplands to find food and water, and thus causing energetic stress, etc., etc., and ultimately death), one would expect they had an extraordinary level of data for each of these points. However, they did not. Regarding blue crabs, which the plaintiffs considered the primary food of the cranes, they only had abundance data for some, not all, months at one location on one part of the winter range, when the majority of the cranes wintered elsewhere. Same goes for salinity data. This is an extraordinary lack of data because both patterns of food availability and environmental factors such as salinity are known to vary considerably from one location to the next. Regarding the "imbalance of experts," the professional qualifications of the defense experts were every bit as impressive, if not more so, than those of the plaintiffs experts. None of the plaintiff's experts has won a Nobel Peace Prize (as Dr. Sass' own website indicates, he received a "certificate," not a Nobel Prize, from the IPCC thanking him for his contributions to the state of knowledge on climate change, which by the way, has nothing to do with whooping cranes or any related facts in the case). While the Judge suggests that most/many of TAP's witnesses had devoted their time to field study of whooping cranes, only one of their experts has actually done so, which is exactly the same number as offered by the defense. And defense witness Dr. Slack has published more peer-reviewed publications on the winter ecology of whooping cranes than every one of the plaintiff's witnesses combined, yet somehow the Judge found him less qualified to discuss whooping cranes than the climate biogeochemist. Also, the Judge completely botched what transpired in court regarding Dr. Slack's testimony because the statement that TAP's lawyer attributed to him on the stand regarding a salt gland in whooping cranes was actually a word-for-word quote from the expert report of a different defense witness, Dr. Richard Stroud, a forensic veterinarian who is well-qualified to make such a claim (and in no way was Dr. Stroud's observation "contrary to the scientific literature"). The TAP lawyer falsely claimed it was Dr. Slack who said this and the Judge apparently never revisited this during the year between the end of trial and the release of her opinion to see if it was even true or not. Sadly, now multiple news articles have incorrectly suggested that Dr. Slack made up data, which is the fault of the Judge for not doing her job of fact-checking claims made by the lawyers during trial. On your comment regarding "the level of judicial interest," I would agree with you that she indeed was quite interested to the point of bias. For example, she even made up facts in her opinion that nobody for either side argued at all during trial, such as the suggestion that 34 birds died in the period following the winter in question (which if true, would suggest the birds had been in poor shape upon migrating from the wintering grounds), when in fact the data shows that only 6 birds actually died during that period (which is the lowest non-winter mortality rate ever recorded, which strongly suggests the birds were not in bad body condition and that the winter may not have been as harsh as suggested by the plaintiffs). Indeed, an important section of Dr. Slack's expert report and testimony during trial involved a discussion of the significance of only 6 birds dying during the remainder of the year, and the plaintiffs did not dispute this, so how exactly did the Judge end up concluding that 34 birds actually died? It is astounding that she so mangled this basic fact of the case, one that has a significant effect on interpretation of the events of that winter. Also, as you mentioned, she found Dr. Slack's testimony insufficient because she herself could not identify food items on the videotapes of Dr. Slack's graduate student, despite his repeated comments on the stand that the identification of those food items involved considerable experience (by the student) in the field observing this species' foraging behaviors and diet patterns, use of context clues such as foraging style, food substrate, and habitat, as well as field notes by a trained biologist at the time the videos were recorded. Also, his testimony was based upon a career of study of this species, not just the videotapes of a single student, and her results did not even contradict what previous studies had found anyway. I do not fault you for assuming that her opinion accurately represented the actual facts of case, but it clearly did not. What this suggests to me is that the factual errors and clear bias issued by the Judge in this case will ultimately lead to the overturn of her decision upon appeal to a higher court. Regards.
Posted by: Robert Powell |

Posted by: Robert Powell | Apr 8, 2013 6:42:03 PM

I spent a lot of my professional career working on this crane for the End. Sp. program of the US FWS. I wrote the Critical Habitat designations and was a major editor of the early recovery plans for this species. Thus, I have some vested interest in seeing how this case was resolved. I suspect that the conclusions of this review are correct...it will be tough to get as many experts on another end. sp. as in this case, as well as a court who is very interested in the subject species. Would like to think all E/T species have such friendly courts and experts waiting in the wing.....

Thanx for the review of this case.

Posted by: Jay Sheppard | Apr 5, 2013 8:39:47 AM

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