Judge preserves protected status for warblers
The golden-cheeked warbler, a songbird that has lost much of its nesting area to suburban sprawl near San Antonio, Austin and across Central Texas, will remain protected under the federal Endangered Species Act, a judge in Austin has ruled.
The decision came in a lawsuit filed 18 months ago by the conservative Texas Public Policy Foundation on behalf of the Texas General Land Office.
It argued that a 2015 Texas A&M University study had shown the warbler no longer needed the federal protection, which has required a development permit process that undermined property rights.
The endangered status of the bird has been a significant shaper of suburban growth in the Texas Hill Country, with the setting aside of land to preserve its habitat often required as a condition for construction on other tracts.
Environmental groups that included the Audubon Society and Center for Biological Diversity hailed last week’s decision by Senior U.S. District Judge Sam Sparks to keep protections for the bird in place. He had previously dismissed two other parts of the lawsuit.
“Everybody was expecting this,” said Jim Cannizzo, environmental attorney for the U.S. Army at Camp Stanley. “The study that the lawsuit relied on, many were skeptical of the quality of data.”
If successful, the lawsuit would have opened hundreds of thousands of acres, including near Camp Bullis in northern Bexar County, to greater development.
The Army, which trains combat medics at Camp Bullis, has been able to reduce the number of acres it must maintain as warbler habitat thanks to land acquired and set aside for that purpose by San Antonio and Bexar County.
Without the warbler protections, the Army wouldn’t need to worry about the habitat, but it remains concerned about new development near its boundaries, whose lights could reduce the realism of training under dark night skies.
The larger concern among top city and county leaders is that the military could relocate medic field training to another base if that happens.
Those in favor of lifting the federal protections, including Texas Land Commissioner George P. Bush, say the warbler has sufficiently recovered.
The policy foundation and General Land Office, in a joint statement, said officials will consult with their attorneys about whether to appeal the ruling.
They also said the warbler’s population “is now 19 times greater than estimated when the species was first listed. The removal of the golden-cheeked warbler would restore the rights of land owners to effectively manage our own properties, without oversight from the federal bureaucracy.”
The Texas A&M Institute of Renewable Natural Resources’ study, however, stated it did “not advocate changes in the listing status of the golden-cheeked warbler” and also did not “imply that conservation measures to protect the species habitat are no longer needed.”
The lawsuit alleged federal authorities violated the Endangered Species Act and its regulations by listing the warbler as an endangered species without designating its critical habitat. It also said the U.S. Fish and Wildlife Service improperly denied the petition to delist the bird when it “failed to consider new and substantial scientific data.”
And, finally, the suit said the government violated the National Environmental Policy Act by failing to prepare an environmental assessment or environmental impact statement in conjunction with its original decision to list the bird as endangered as well as in its fiveyear review and in connection with another finding.
The court threw out the first and third claims in late 2017.
The bird’s defenders contended the plaintiffs’ true goal was to ease the way for real estate developers at the expense of the warbler. The small songbird, up to 5 inches long with yellow markings on its cheeks, is found in 38 Central Texas counties.
“We’re thrilled that this cynical attempt to take protection away from the warbler has been stopped,” said Ryan Shannon, a staff attorney at the Center for Biological Diversity. “With the continued protection of the Endangered Species Act, hopefully this Texas native will charm birders from all over the world for a long time to come.”
Warbler advocates say construction and ranching have reduced the area’s mature ashe juniper trees, whose shedding bark it uses to build nests, for decades. Central Texas is the only place in the world where it breeds. Audubon says that since the 1970s, an estimated 50 percent of its juniper habitat had been destroyed. It was listed as endangered in 1990.
The foundation and the General Land Office have tried for four years to remove the warbler from the list, initially filing a petition with the U.S. Fish and Wildlife Service to argue that development restrictions caused by its protected status had lowered property values and required developers to prove, in costly and timeconsuming permit applications, that their projects wouldn’t affect the bird.
The wildlife service denied the petition in 2016, saying it wasn’t backed by “substantial information that delisting is warranted.” It said “habitat destruction, fragmentation and degradation remain a real and significant threat to the continued existence” of the songbird.
The land office, acting as plaintiff, sued the fish and wildlife agency, then-Interior Secretary Ryan Zinke and two others. Sparks, the judge, agreed with the wildlife service, saying the state’s “argument … is unpersuasive” in part because the petition to delist may have overstated the warbler population.
Sparks said the petition also failed to include any new information on a number of threats to the warbler’s survival, leading a reasonable person to conclude “the warbler remained endangered despite promising population predictions and a greater known potential range” outlined in the A&M study.