This week, a federal court in Texas ruled that Golden-cheeked Warblers still need federal protection under the Endangered Species Act, thwarting a campaign to delist the species.
The birds—which, true to their name, sport bright facial feathers below a neat black cap—are up against a host of threats, including habitat loss, nest predation, and climate change. The court’s ruling ensures that federal funds and efforts to mitigate habitat loss and monitor the species will be able to continue throughout the state.
Small as they are, these birds have been causing a ruckus in Texas politics for years. Golden-cheeked Warblers breed exclusively in the juniper woodlands of Central Texas not far from Austin—one of the fastest-growing-areas of the country—and so the birds’ habitat overlaps with valuable real estate. The U.S. Fish and Wildlife Service (FWS) first listed the warblers as endangered under an emergency rule in 1990, citing “ongoing and imminent habitat destruction.” As a result, developers have to take certain federally-mandated steps, like applying for permits and paying into a conservation fund, before bulldozing juniper trees to build houses and roads in breeding areas. Those restrictions, however, didn’t stop 1.5 million acres, almost a third of the warbler’s habitat, from being gobbled up by suburban sprawl between 1999 and 2011.
The Texas Public Policy Foundation (TPPF) first filed a petition to have the warblers removed from the list in 2015 on behalf of the Texas General Land Office, part of the state government, which owns land in the warbler habitat zone. In 2016, the FWS reviewed the petition and decided it did not present enough new information to warrant delisting. The conservative think tank disagreed: In the summer of 2017, it sued the FWS to force the issue. After several years of legal proceedings, a federal judge in the Western District Court of Texas finally handed down a decision on February 6.
Environmental groups supporting the FWS felt a “sense of relief” after the ruling, says Ryan Shannon, lawyer for the Center for Biological Diversity. CBD, along with Travis Audubon and Defenders of Wildlife, filed a brief as friends of the court in support of the agency in the case.
“It’s simply too soon to remove protections for the warbler, which continues to lose habitat to urban sprawl,” Nicole Netherton, executive director of Travis Audubon, said in a statement responding to the news. “Central Texas is the only place in the world where Golden-cheeked Warblers are born and raised, and continued protections will help encourage their breeding success for years to come.”
In the lawsuit, TPPF argued that warbler populations had recovered and, as such, the FWS had to honor their petition to delist. Their case rested on a controversial 2012 survey of warbler populations conducted by scientists at Texas A&M University that found Golden-cheeked Warbler populations were nearly 19 times higher than earlier estimates, with more than 260,000 males. The study also found that the species had five times as much breeding habitat than was known at the time of listing in 1990.
But funding for the study came from Texas Department of Transportation, raising red flags about possible conflicts of interest. Biologists for the City of Austin who later evaluated the A&M model suggested it greatly exaggerated warbler counts. In 2014, FWS commissioned its own study and found the birds still had a long way to go toward recovery, citing explosive suburban development as a primary concern.
Limited banding efforts in the state make it difficult to pinpoint exact population numbers, says Lisa O’Donnell, a biologist with the city of Austin. But best estimates suggest there are a minimum of 9,600 male warblers where counts have been held, in a limited area of 300,000 acres of their habitat. No official estimate exists for the total number of warblers in the state.
Melinda Taylor, executive director of the Kay Bailey Hutchison Center for Law, Energy, and Business at the University of Texas, says she was not altogether surprised by the court’s decision. In a case like this, the judge evaluates whether FWS did its due diligence when deciding to reject the delisting petition, she says. Because Judge Sam Sparks ruled that the agency did review all of the available evidence, and that “Texas overstates the significance of the evidence presented in the Petition to Delist,” the warbler’s protection should stand. (Disclosure: Taylor served as deputy general counsel to the National Audubon Society from 1989 to 1991.)
After the decision, Robert Henneke, general counsel for TPPF, told Audubon that warbler populations have indeed recovered, and failure to delist the species now “infringes on private property rights.” He also maintained that the initial 1990 species listing was incomplete, and therefore invalid, because FWS failed to designate critical habitat for the warblers. While the FWS is supposed to designate this habitat, Taylor says nothing in the law suggests that failing to do so somehow makes the listing invalid. The judge also rejected the argument.
Even if Golden-cheeked Warbler populations had rebounded, delisting a species requires more than a surge in population numbers, Taylor says. In that case, the Service would have to analyze all of the threats continuing to face the species, something she says TPPF didn’t seem to grasp in their argument.
The ultimate goal is to delist the species—when the birds have truly recovered, Shannon says. “Honestly we all hope the data comes out that the Golden-cheeked Warbler has recovered and doesn’t need protection under ESA," he says, "but that point isn’t now.”