Hearing scheduled on Aug. 14, 9:00am, at the Federal Courthouse in Austin
For a bird that weighs less than an ounce and has no conception of the American legal system, the Golden-cheeked Warbler (Setophaga chrysoparia) finds itself at the center of court disputes surprisingly often. This month, the culmination of a longstanding string of fruitless petitions and lawsuits now pits the State of Texas against the U.S. Fish and Wildlife Service (FWS) and allied biodiversity advocates.
The beloved native Texan warbler is caught in the crossfire of the current legal saga. It began a decade ago, after FWS completed a “five-year status assessment” of the species in 2014. Looking at the science, FWS recommended no change to the classification of the warbler as endangered. Conservationists breathed a sigh of relief.
But the recommendation left certain anti-warbler interests dissatisfied. Those groups submitted a formal delisting petition to the Service in 2015. They included Susan Combs (at that time the Texas Comptroller, who later joined the Trump Administration), and the Texas Public Policy Foundation (on whose board sit west Texas oil magnates such as Kyle Stallings and conservative billionaire Tim Dunn), among others.
FWS denied their petition in 2016. In the view of the Service, golden cheeks still faced the threat of extinction, due primarily to widespread ongoing habitat loss. Thwarted again, the same groups challenged FWS’ denial of their petition in federal district court, in 2017. But the judge found that FWS had acted within its authority in denying the petition.
Then the petitioners appealed up to the U.S. Fifth Circuit Court of Appeals, known for pushing the boundaries of the law. And in 2020 it partially reversed the lower court decision, saying that FWS had improperly applied a heightened standard when reviewing the delisting petition. The court sent the matter back to the agency.
So FWS looked at the petition again, and decided once more that it was not appropriate to delist the warbler. Given the best available scientific evidence, the threats to the songbird were simply too great to remove it from the endangered species list. The Service denied the petition in 2021.
At that point, since the warbler appeared on track to remain listed, the disgruntled groups looked to a new ally for help: the General Land Office (GLO) of the State of Texas, which brought another lawsuit against FWS in 2022. Represented by attorneys from the Texas Public Policy Foundation, GLO claimed that the Service’s second denial of the petition was not in accordance with the Fifth Circuit decision.
Now FWS is defending its actions alongside local environmental non-profit Save Our Springs Alliance (represented by Earthjustice), who intervened on behalf of the continued listing of the species. The case has reached a critical juncture, as motions for summary judgment have been filed by both sides.
What can TAS members do?
Attend the upcoming hearing. Oral arguments will be heard before Judge David Ezra of the Western District of Texas, Austin Division, on Wednesday, August 14, at 9:00am in the federal courthouse in downtown Austin (501 W. 5th St.). It is open to the public.
Additionally, you should call or write to your state representatives and express your opinion on the case. The GLO is a state agency, answerable to the public, and expending public resources on this litigation. If you don’t support it, let your elected officials know.
Photos by Dave Read
