New Lawsuit Again Aims to Remove Endangered Status for Warbler

Golden-cheeked warbler (Photo by Bobby Leath)

On Jan. 12, the conservative think tank Texas Public Policy Foundation filed a lawsuit on behalf of the Texas General Land Office against the U.S. Fish and Wild­life Service "for continuing to disregard the private property rights of Texans" by keeping the golden-cheeked warbler on the endangered species list. The warbler resides only in the Central Texas region, from around San Antonio to Ft. Worth, and was listed in 1990 due to the threat of development depleting the Ashe juniper and oak trees where the birds build their nests.

All petitions to list or delist a species have to go through a 90-day review process, in which the FWS determines if the petition has enough merit to move on to the more substantial 12-month status review. The agency rejected TPPF's first petition to delist the warbler seven years ago, in 2015, at the 90-day point, after which TPPF sued in federal court on the grounds that FWS used outside information to review its claim. During the 90-day review, the agency is only supposed to look at the petition itself. In 2020, the 5th U.S. Circuit Court of Appeals sided with TPPF and directed FWS to redo its review, which led to the same result after 90 days, and now a revival of TPPF's legal action.

Ryan Shannon, an attorney who works on Endangered Species Act issues with the Center for Biological Diversity, explains that the service had just conducted a status review of the species and decided it should remain endangered when it rejected TPPF's 2015 petition (which cited research that claims the warbler's range and habitat is five times larger than was thought). The 90-day review is "not intended to be a super high hurdle," Shannon clarifies. "It's a tough thing for the service to defend a rejection [of a 90-day petition] in court because the standard of review is so permissive. They've often lost when they've had to defend it before."

As for the scientific evidence TPPF presented, Shannon says the warbler's survival hinges not on population numbers or habitat acreage, which may well have increased, but rather on "the threats that rendered it endangered in the first place. One way to think about it is like, what if we had a captive breeding program? If we had 100,000 golden-cheeked warblers on hand and could release them tomorrow, the number in the wild would be pretty high. But if there's no Ashe juniper for them to nest in, then having a high population number at a certain point in time might not actually be indicative of their longevity prospects."

It's also a question of habitat quality, explains Nicole Netherton, executive director of Travis Audubon: Warblers "are very territorial; they will compete and not be able to successfully breed if they're too crowded. You have to have a lot of space." Netherton says the birds also won't get too close to the edge of their available habitat, or the wildland-urban interface, requiring large uninterrupted spaces like those protected in the Balcones Canyonlands preserve for the species to thrive.

If TPPF wins this case, the warbler won't be delisted immediately – the service will just have to do another 90-day review and potentially move on to the 12-month survey. Even then, Shannon says it's unlikely the warbler would be delisted, but rather downlisted to "threatened" to allow property owners and developers more flexibility in its habitat, but also continue to provide some protections under the Endangered Species Act. Until the judge decides, TPPF remains highly confident: "Our original petition provides more than enough evidence to show the warbler may not be endangered – which is all we need to demonstrate," reads the press release.