Gearing up for lawsuit over Golden-Cheeked warbler’s endangered status

Golden-cheeked warbler's status on the endangered species list in question. Photo Courtesy: Romey Swanson.
Golden-cheeked warbler's status on the endangered species list in question. (Courtesy: Romey Swanson)

AUSTIN (KXAN) — The Texas Public Policy Foundation intends to continue their plans to sue the U.S. Department of Fish and Wildlife to remove the Golden-Cheeked warbler from the endangered species list.

As an organization focused on personal liberties and property rights, TPPF feels strongly that the warbler has put a substantial financial burden on landowners and developers in Central Texas. The warbler, which has been the subject of much debate, breeds exclusively in Central Texas.

Robert Henneke, general counsel and litigation director for the Center for American Future at TPPF, sent a letter in March to the U.S. Department of Interior and Fish and Wildlife, giving 60 days notice of intent to file lawsuit. This has been a multi-step process for TPPF which started in 2015 when they petitioned the warbler’s endangered status. At that time, they sent the department a copy of a 2015 report from Texas A&M which suggested that the Golden-Cheeked warbler’s numbers were rising.

“The data suggests that the warbler’s population is 19 times greater than it was when it was first listed and its habitat was nearly 6 times larger ” Henneke said.

But the department rejected the petition, saying TPPF’s letter, “does not present substantial scientific or commercial information indicating that the petitioned action may be warranted and we are not initiating a status review in response to this petition.”

At that point, TPPF prepared to head to court.

“We hope the government will change their position during this period of time and have a different consideration in terms of the warbler, but if not we fully intend to go to court and take the next step, and go into court to stand for private property rights here in Texas,” Henneke said.

TPPF is carrying out this lawsuit on behalf of their client, the Texas General Land Office, which manages, “a vast amount of acreage that’s held in trust to fund public education,” Henneke said.  He believes that GLO and many other Texas landowners are faced with financial penalties because their properties are on or near warbler habitat.

“There’s one several thousand acre tract that the General Land Office owns that has been documented in independent appraisals has decreased in value by 43 percent because the warbler has been located on this property,” Henneke explained. “When you look at how that has interfered with property rights, with development in an area of Texas that’s exploding right now, you can see the big consequences right now of one songbird type species.”

Henneke sees the warbler as a “success story” because of the numbers reported in the A&M research, and hopes the warbler’s case will be a model for how other species can be de-listed when their population numbers increase.

Romey Swanson, a certified wildlife biologist and a conservation project manager for the Hill Country Conservancy said that he is concerned about making a decision on the warbler based on the A&M study alone.

“I don’t think there’s enough data there to say there’s a wholesale reason to completely de-list the bird and I certainly don’t feel that there’s been enough transparency in the science that’s available that these decisions are trying to be based on,” Swanson said.

He has seen these warblers every year for the past decade and explained that their habitat needs are incompatible with dense development.

“I certainly don’t think the threats have been completely mitigated, without the protections [the warbler is] going to face an increasing amount of pressure at least on portions of its habitat,” Swanson said. “The problem is that the habitat seems to be reduced in acreage particularly on the eastern part of the Hill Country and along the Balcones fault line or plateau edge, that’s where a lot of development is occurring. A lot of habitat is being knocked down and quite frankly a lot of that habitat is never going to recover because we’re putting houses and development and a lot of infrastructure that’s needed in those areas.”

Swanson is not opposed to the idea of a review of the warbler’s status, but wants to see more research on the bird’s population numbers first. He hopes that whatever decision is reached about the warbler follows plenty of conversations with the invested parties and buy-in from the community.

For Swanson, protecting this Golden-Cheeked warbler’s delicate balance in Central Texas is personal.

“It is as important to many individuals as any of Picasso’s paintings, we know it, so it matters to a lot of us,” he said. “And it raises a really strong ethical question, just because we can’t place a certain value — whether it’s monetary or any other intrinsic value — does that mean we should or shouldn’t care?”

Clifton Ladd, a board member for Travis Audubon, also has doubts about the A&M study.

“The U.S. Fish and Wildlife [Department] just completed a status review on this species and concluded they should keep it as it is,” Ladd said. “There is nothing new in that petition, the whole idea that they would de-list the species based on a review of that faulty information is a big waste of time.”

Ladd said he has spent most of his career studying the warbler and trying to protect it, he feels that more work needs to be done in Central Texas to preserve warbler habitats in the long term.

“The idea of pulling the rug out from our local efforts doesn’t sit too well with me, especially based on bad information,” Ladd said. “If the warbler is doing well, I would ultimately like to get it off of the endangered species list, but I don’t think we’re ready for that.”

Tim Keitt, a professor at the University of Texas at Austin who studies population biology, shares Ladd’s desire to see the study repeated.

“Just because a single paper is published does not mean that the scientific community has reached consensus. I believe there is insufficient evidence at this time to de-list based on the A&M study alone. I would like to see it replicated,” Keitt said in an email. Keitt added that he personally hasn’t seen enough of the data available to say whether the warbler should be listed or de-listed.

Keitt said that the growth of population in Central Texas has “imperiled” the warbler’s habitat.

“I believe that a reasonable person, knowledgeable of our region and the warbler’s ecology, would consider conservation action, now and in the past, an appropriate response,” Keitt said.

Henneke expects the official filing will happen in the next few weeks.

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