NEW ORLEANS (CN) — The golden-cheeked warbler, with its bright yellow facial plumage and distinctive black eyelines, can be seen nesting exclusively in central Texas’ woodlands of live oak and Ashe juniper, as endangered in 1990, when those woodlands were being cleared for residential and retail development in and around Austin.
The 5-inch warblers depend on the bark of mature Ashe juniper shrubs, commonly if confusingly called “cedar” in Texas, to build their nests, bound with spider and other insect silk as well as grasses, hair or down. Golden-cheeked warblers nest and breed in central Texas before migrating through Mexico to spend winters in Central America, as far south as Costa Rica.
Much of the tall juniper and oak woodlands in central Texas, especially in and around the Edwards Plateau, has been cleared for livestock, crops, homes, roads and stores, according to Texas Parks and Wildlife.
The U.S. Fish and Wildlife Service listed the bird as endangered in 1990, when the woodlands they love were being cleared for residential and retail development in and around Austin.
But the Texas Public Policy Foundation, a conservative think tank, and three other petitioners asked the Fish and Wildlife Service to rescind the golden-cheeked warbler’s endangered designation in 2015. When the petition was denied, the think tank filed a lawsuit on behalf of the state’s General Land Office in 2017 to challenge the denial.
According to the General Land Office, the golden-cheeked warbler enjoys about five times the breeding habitat it did in 1990, and the population has increased 19-fold, figures disputed at the time by the federal office and bird conservation groups such as the Travis Audubon Society.
“We acknowledge that the known potential range is more extensive than when the golden-cheeked warbler was originally listed,” the Fish and Wildlife Service said when it declined to remove the warbler from the endangered species list. “However, threats of habitat loss and habitat fragmentation are ongoing and expected to impact the continued existence of the warbler in the foreseeable future.”
The Endangered Species Act requires Fish and Wildlife to review species’ status every five years, but the golden-cheeked warbler was not reviewed until 2014, when the office found the songbird “threatened by ongoing and imminent habitat loss,” and that 29% of the breeding habitat had been lost between 1999 and 2011.
The 21-page lawsuit also claimed that the endangered-species designation reduced property values, and as a result, kept the state from “maximiz[ing] revenues from Texas public school lands for the benefit of Texas schoolchildren.”
The General Land Office pressed three arguments at the Fifth Circuit: that Fish and Wildlife violated the Endangered Species Act when it failed to designate the warbler’s critical habitat when it listed the species as endangered; that denying the petition violated the National Environmental Policy Act because it did not prepare an environmental impact statement to support the denial; and that Fish and Wildlife improperly reviewed the petition, in violation of the Endangered Species Act.
The Fifth Circuit on Wednesday found that the U.S. Fish and Wildlife Service improperly denied Texas’ petition to remove the golden-cheeked warbler from the Endangered Species list.
Though the state’s challenge to the warbler’s status was untimely, U.S. Circuit Judge Carolyn King wrote, Fish and Wildlife applied an unfairly high standard when reviewing the petition, rendering the denial “arbitrary and capricious.” The Fifth Circuit vacated the ruling and remanded the matter to Fish and Wildlife for reevaluation.
Judge King found that Texas’ first claim, challenging the initial decision listing the warbler as endangered, is time-barred because it was not filed within six years of the alleged injury to the state.
Also, Fish and Wildlife did not violate federal law when it did not produce a new environmental impact statement because “the Service does not need to provide environmental impact statements for its listing decisions.”
The Fifth Circuit said that the Endangered Species Act bars Fish and Wildlife from consulting environmental impact statements when deciding whether to list or delist species as endangered or threatened.
But in denying the state’s request to delist golden-cheeked warblers, the Fish and Wildlife Service “required the delisting petition to contain information that the Service had not considered in its five-year review that was sufficient to refute that review’s conclusions,” which the court called “an inappropriately heightened” standard. So the court vacated the ruling.