Texas General Lands Office Pursues Bird Endangered Species Designation That ‘Restricts Property Use’

The only bird species that nests entirely in the state of Texas is the golden-cheeked warbler, and it has now ended up in the West Texas District Court.

The Texas Public Policy Foundation (TPPF), on behalf of the Texas General Land Office (GLO), for follow-up the United States Fish and Wildlife Service (FWS) for its refusal to review 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 of protection was deemed “inadequate to protect the bird and its habitat from imminent destruction due to land clearing and development”.

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

Under the protection of the ESA, any private property that is not only deemed to encompass warbler habitat, but which could also support warbler habitat, falls under regulatory jurisdiction. Under the ESA, the federal government has the ability to restrict the use of personal property and impose heavy fines for violations, whether typical ranching or exploration activities. oil and gas.

But regulators say such restrictions are necessary to prevent population loss for the bird, despite the population numbers. In 2020, the Texas Parks and Wildlife Commission added 45 species on its protected list – and the urge of regulators to add more is constant.

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

When the FWS denied that motion, the GLO sued, initially losing in the West Texas District Court. But then the Fifth Circuit Court ruled in their favor.

The tribunal ruled the rejection of the FWS “violated the ESA and was arbitrary and capricious because it applied an unduly strict standard that was not authorized by the ESA or the then applicable regulations”.

After another petition was filed last year, the suit claims, the FWS committed the same violation by dismissing the appeal.

“By ignoring a court order, the Biden administration is knowingly attempting 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 combat this regulatory threat to our lands.”

In accordance with the regulation fights, the whole episode took years and the question evolved little.

“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 of TPPF. “The Service’s discovery shows complete disregard for 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 endangered status.

Gregory M. Roy