Golden cheeked warbler (Photo by Bobby Leath)
On January 12, the conservative think tank Texas Public Policy Foundation filed a lawsuit on behalf of Texas General Land Office against the US Fish and Wildlife Service “to continue to ignore the private property rights of Texans” by keeping the golden cheeked warbler on the list of endangered species. 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 Ashe juniper and oak trees where the birds build their nests.
All requests to list or delist a species must go through a 90-day review process, during which the FWS determines whether the request has sufficient merit to proceed to the more substantial 12-month status review. . The agency denied TPPF’s first motion to remove the warbler from the list seven years ago, in 2015, after 90 days, after which TPPF sued in federal court on the grounds that FWS used information external bodies to examine his request. During the 90-day review, the agency is only supposed to review the petition itself. In 2020, the 5th United States Circuit Court of Appeals sided with TPPF and ordered FWS to redo its review, leading to the same result after 90 days, and now to a renewed legal action by TPPF.
ryan shannon, a lawyer who works on Endangered Species Act issues with the Center for Biological Diversity, explains that the service had just conducted a review of the species’ status and decided that it should remain endangered when it denied TPPF’s petition in 2015 (which cited research claiming that the range and habitat of the warbler is five times larger than previously thought). The 90-day exam is “not intended to be a very high hurdle,” Shannon clarifies. “It is a difficult thing for the service to defend a rejection [of a 90-day petition] in court because the standard of review is so permissive. They often lost when they had to defend him before.”
The survival of the warbler does not depend on the number of populations or the size of its habitat, but rather on the “threats that endangered it in the first place. … If there are no Ashe junipers to nest in, having a high population count at any given time might not be an indication of their longevity prospects.
– Lawyer Ryan Shannon
Regarding the scientific evidence presented by TPPF, Shannon says the survival of the warbler does not depend on the number of populations or the area of habitat, which may well have increased, but rather on the “threats that have caused it”. endangerment 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 numbers in the wild would be quite high. But if there are no Ashe junipers to nest in, then having a high population number at any given time might not be indicative of their longevity prospects.”
It is also a question of the quality of the habitat, explains Nicole Netherton, Managing Director of Travis Audubon: Warblers “are very territorial; they will fight and will not be able to reproduce successfully if they are too crowded. You have to have a lot of space.” Netherton says the birds will also not approach too close to the edge of their available habitat, or the wild-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 will not be delisted immediately – the service will simply have to do another 90-day review and possibly move on to the 12-month investigation. Even then, Shannon says the warbler is unlikely to be delisted, but instead downlisted to “threatened” to allow 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 very confident: “Our original petition provides more than enough evidence to show that the warbler may not be in danger – that’s all we need to demonstrate” , reads the press release.