Courtesy / Rick Kostecke, The Nature Conservancy
A lawsuit over an endangered songbird that pits the state of Texas against the U.S. Department of the Interior will continue, although a federal judge has narrowed the scope of the lawsuit.
The ruling deals with a lawsuit over the golden-cheeked warbler, a 3- to 5-inch migratory songbird, filed by the Texas Public Policy Foundation, a free-market think tank, on behalf of the Texas General Land Office. The two want to take the bird off the endangered list.
“Although petite in size, the warbler is perched at the center of a weighty dispute fraught with tension between land rights and environmental conservation as well as between state and federal power,” U.S. District Judge Sam Sparks wrote in a November ruling.
In the ruling, Sparks dismissed two of the state’s three claims against the Department of the Interior and the U.S. Fish and Wildlife Service.
The ruling allows the General Land Office to proceed with its central claim: that the federal government did not properly consider “new and substantial scientific data” in keeping the warbler on the endangered list or designate habitat that is critical for the bird’s survival.
The judge’s order also denied the request of the Travis Audubon Society, Texas Ornithological Society, Center for Biological Diversity, and Defenders of Wildlife to intervene in the case.
The case has surprised some environmentalists wary of how the Trump Administration would handle a major endangered species case. In multiple motions, attorneys for the Department of Justice and U.S. Fish and Wildlife defended the warbler’s endangered status.
Many consider the warbler a symbol of the Texas Hill Country. Every spring, warblers return from their wintering grounds in Mexico and Central America to build nests and raise their young. They weave their nests out of spiderwebs and mountain cedar bark, according to the Texas Parks and Wildlife Department.
The warblers nest only in 39 counties in Central Texas, including Bexar County.
Federal protections for the warbler are unpopular with some developers and property owners who don’t like the restrictions placed on the bird’s habitat under the Endangered Species Act, arguably the nation’s toothiest environmental law.
At a Texas Public Policy Foundation breakfast panel Friday, Texas Land Commissioner George P. Bush called the Endangered Species Act a “looming threat we see on state lands and private lands here in Texas.”
The U.S. Fish and Wildlife Service first listed the warbler as endangered in 1990 out of concern that development in the Hill Country threatens the bird’s survival.
The Texas Public Policy Foundation has been trying to get the warbler off the endangered list since at least 2015, when it and other groups filed a petition with the U.S. Fish and Wildlife Service.
They cited a 2015 study by the Texas A&M Institute of Renewable Natural Resources suggesting more warblers and warbler habitat exist in Texas than scientists originally thought.
The wildlife service denied the petition in 2016, saying the groups “did not present substantial information that delisting is warranted” and that “habitat destruction, fragmentation and degradation remain a real and significant threat to the continued existence of the warbler.”
The Texas Public Policy Foundation and General Land Office followed up by filing suit in federal court in June 2017.
The General Land Office’s concern with the warbler stems at least in part from a property it owns in Bexar County, with a small portion extending into Kendall County.
The property, known as Rancho Sierra, contains 2,317 acres of undeveloped rolling Hill Country, home to two creeks and Mount Smith, the highest point in Bexar County at 1,892 feet above sea level.
In 2005, the General Land Office bought the property for the benefit of the Permanent School Fund, an endowment that supports public education in Texas. The state paid $26.6 million for the property, according to county records.
Rancho Sierra turned out to be full of warblers during nesting season, according to a 2008 survey obtained by the Rivard Report. Nearly 85 percent of the property contains warbler habitat, the General Land Office and Texas Public Policy Foundation said in their initial complaint.
Because “clearing or development on the Rancho Sierra property would require a lengthy and costly mitigation process,” appraisers have told the General Land Office that the presence of warbler habitat diminishes Rancho Sierra’s value by around 35 percent, the complaint states.
“The reduction in property value caused by the presence of Warbler habitat translates to less money available for fulfilling [the General Land Office’s] mission to maximize revenues from Texas public school lands for the benefit of Texas schoolchildren,” it states.
Contacted Friday afternoon, General Land Office spokeswoman Brittany Eck said she “can find no indication” that the office knew warblers were present on the property when the state purchased it 13 years ago.