NOTE: This is a follow-up to the Aug. 1 blog piece summarizing a federal court hearing called to examine whether a petition to remove the Golden-cheeked Warbler from the federal endangered species list should proceed. The state’s General Land Office (GLO), aided by the Texas Public Policy Foundation (TPPF), has challenged findings by the U.S. Fish and Wildlife Service (FWS) that the Central Texas native bird remains in peril due to habitat loss.
Austin – On Sept. 5, 2024, U.S. District Judge Ezra granted the GLO’s motion for summary judgment. The court held that the FWS decision to deny the delisting petition was made under an inappropriately heightened standard. In other words, the Service should have been more generous at this stage of review. Try again. For the third time.
What’s going on here in this apparent doom loop? The law is rarely written so clearly as to foreclose a range of interpretations. The Endangered Species Act is no exception.
It says that a petition can pass beyond the initial 90-day finding stage and onto the 12-month review stage if it puts forward “substantial scientific or commercial information indicating [delisting] may be warranted.” Substantial is a mushier word than you might think. But the idea is that if a reasonable person looks at the petition and thinks that delisting may be warranted based on the information provided, the petition should survive the 90-day finding stage.
In this case, FWS said that GLO’s petition simply didn’t provide sufficient information to justify moving to the 12-month review stage. According to the court, however, the Service erred, insofar as it denied the petition based on GLO’s failure to put forward conclusive evidence of the warbler’s recovery. But did FWS actually require conclusive evidence, or not?
FWS argues that it didn’t. But the court was narrowly persuaded by GLO’s argument that the Service said one thing—reciting the correct statutory language—but did another.
This decision came as a surprise and requires that FWS again reconsider the petition under the correct legal standard. But the ruling, though disappointing for conservation advocates, should not be blown out of proportion. This judgment certainly doesn’t order the Service to delist the warbler, nor even to proceed to a 12-month review of the petition.
In fact, the public should understand exactly what the GLO and TPPF are arguing as they continue to drain public resources—both state and federal—by attacking one of the most charismatic songbirds in Texas. It’s not that their petition is so strong that it must succeed, but rather that even weak petitions like theirs should survive a little longer. Because the bar is, in their view, so low.
To what end? Just to be denied after another 90 days, or after a yearlong review if it makes it that far? Recall that during this now decade-long fight over one tired petition that’s barely hanging on by a thread, FWS has moved on. It’s almost done with its new five-year status assessment of the golden-cheeks, based on the most up-to-date science available.
Meanwhile, this year’s breeding season is over, and the golden cheeks have all left for more southerly climes to overwinter. Next spring when they return, they will be welcomed, as always, by Central Texas oaks and junipers—less fickle friends, surely, than the humans wrangling over their fate in office towers and courtrooms.
Content by Paul DiFiore
Photo by Dave Read
