FederalTexas General Land Office Sues Over Bird’s Endangered Species Designation That ‘Restricts Property Use’

The legal back and forth has taken years as the federal government is resistant to reassessing the bird's status under the Endangered Species Act.
January 13, 2022
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The only bird species that nests entirely within the State of Texas is the Golden-Cheeked Warbler, and it now has found its way to the U.S. Western District Court of Texas.

The Texas Public Policy Foundation (TPPF), on behalf of the Texas General Land Office (GLO), sued the U.S. Fish and Wildlife Service (FWS) for its refusal to revisit the warbler’s status as a protected species under the Endangered Species Act (ESA).

Since 1990, the warbler has been protected under the ESA after an emergency motion was granted to categorize it as such after the regular process for protection was deemed “inadequate to protect the bird and its habitat from imminent destruction from clearing and development.”

At the time, the warbler population was estimated to fall between 15,000 and 17,000.

Under ESA protection, any private property that is not only deemed to encompass warbler habitats but that also could potentially support warbler habitat, falls under regulatory purview. Under the ESA, the federal government has the ability to restrict the use of personal property and levy steep fines for violations — whether it’s typical ranching activities or oil and gas exploration.

The Texan Tumbler

But regulators say such restrictions are necessary to prevent loss of population for the bird, despite the population figures. Back in 2020, the Texas Parks and Wildlife Commission added 45 species to its protected list — and the urge by regulators to add more is constant.

In 2015, a petition was filed with the FWS by TPPF, among other organizations, asking for the warbler’s ESA status to be revisited. At that point, its population was found to be 19 times greater than the original estimate.

When the FWS rejected that petition, the GLO sued, losing initially in the Western District Court of Texas. But then the Fifth Circuit Court ruled in their favor.

The court ruled the FWS’s rejection “violated the ESA and was arbitrary and capricious because it applied an inappropriately stringent standard that was not authorized by the ESA or the then-applicable regulations.” 

After another petition was filed last year, the suit alleges, the FWS made the same violation in rejecting the appeal.

“By ignoring a court order, the Biden Administration is knowingly trying to circumvent state sovereignty and further threaten Texas’ management of our public lands,” said Texas Land Commissioner George P. Bush. “I will continue to use every legal tool in our arsenal to fight this regulatory threat to our lands.”

Consistent with regulatory fights, the entire episode has taken years and the issue has featured little movement.

“The Biden Administration’s refusal to follow federal law to delist the warbler has nothing to do with conservation. Current science proves the warbler has recovered,” said Robert Henneke, general counsel and executive director at TPPF. “The Service’s finding shows an utter disregard for the Texans who are just trying to live their lives and own property.”

This challenge is the third effort to force the federal government to reconsider the warbler’s status of endangerment.

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Brad Johnson

Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.