Feds ask judge to toss Texas Land Office lawsuit over endangered bird

By Daniel Van Oudenaren

The U.S. Fish and Wildlife Service has insisted in a new filing to a federal court in Austin that a species of central Texas bird – the Golden-cheeked Warbler – “remains in danger of extinction.” The federal agency is asking the court to throw out a Texas General Land Office suit seeking to compel delisting of the bird as an endangered species.

The federal agency last Wednesday filed a motion for summary judgment in response to a Land Office petition July 31 asking for an oral hearing. This amounts to a request for the judge to throw out the lawsuit before it even gets to trial. The motion before the U.S. District Court for Western Texas is the latest move in a year-long effort by the Trump administration to defend the status of the golden-cheeked warbler as an endangered species.

The lawsuit has major financial implications for the Texas General Land Office because it owns a 2,316-acre property in Bexar and Kendall counties that contains significant Warbler habitat. It wants to sell this property and could make more money on the sale if the Warbler were first delisted.

U.S. Acting Assistant Attorney General Jeffrey Wood, representing the federal wildlife service, writes in the motion to the court, “Reviewing the Petition and its own files, the U.S. Fish and Wildlife Service concluded that a reasonable person would find that the Warbler remains in danger of extinction due to serious threats from habitat loss and fragmentation, predation, inadequate regulatory mechanisms, and other natural and manmade factors.”

The Warbler was listed as an endangered species in 1990 after decades of development and deforestation in its native habitat in the Texas Hill Country. It has since been re-listed following periodic reviews.

Wood, the federal lawyer, cited a 2014 agency review as the principal basis for the species’ current designation. Absent federal protection, he said, “there are no existing laws or regulations that would slow the already rapid destruction and fragmentation of Warbler breeding habitat.”

But lawyers for the Texas Public Policy Foundation, which is representing the Texas Land Office pro bono, point to a 2015 study by Texas A&M that found that there was approximately five times more Warbler breeding habitat than estimated at the time of the emergency listing in 1990, and approximately 19 times more Warblers than assumed at that time.

The federal wildlife agency pushed back against such evidence, saying, “Putting forth a scintilla of evidence that demonstrates minor uncertainty regarding some threats the Warbler faces is not sufficient to carry the petitioner’s burden of providing ‘substantial evidence’ that, based on all five statutory factors, delisting the Warbler may be warranted.”

According to Texas Parks and Wildlife, golden-cheeked warblers nest only in central Texas in mixed Ashe-juniper and oak woodlands. They eat insects and spiders found on trees. They stay in Texas from March to June before wintering in southern Mexico and Central America.

A key point of dispute in the ongoing lawsuit between Texas and Washington is whether the U.S. Fish and Wildlife Service is required to designate an official habitat area for the warbler in order to lawfully designate it as an endangered species.

Section 4.3.a of the Endangered Species Act says that whenever the federal agency designates a species as endangered it should also “to the maximum extent prudent and determinable… designate any habitat of such species which is then considered to be critical habitat.” The Texas lawyers say that the U.S. wildlife service “is not free to ignore Congress’s instructions to designate critical habitat for endangered species,” according to a July 31 court filing.

Yet the federal agency says that the full extent of the bird’s habitat is not easily “determinable.” Assistant Attorney General Wood replied to the Texans’ petition, “the lack of designated critical habitat has no bearing on this suit.”

Texas Land Commissioner George P. Bush, in a press release last year announcing this lawsuit, said that the Warbler population had recovered and should be considered a success story. He called the federal government “irresponsible” for leaving the golden-cheeked warbler on the endangered species list. “Texans have a strong tradition of land conservation,” he said. “Texas ranchers, homeowners, and other landowners are in a much better position to protect these environments than federal bureaucrats in DC.”

If the warbler stays on the list, Bush’s agency stands lose as much as 35 percent of the market value of the Rancho Sierra Property, the 2,316-acre ranch outside San Antonio that is a Warbler breeding habitat, according to court filings by the agency’s lawyers. Clearing and development of the property would require a “lengthy and costly mitigation process” in order to ensure compliance with the Endangered Species Act.

Photo by Richard Crossley (CC BY-SA 3.0)

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