Courtesy / Rick Kostecke, The Nature Conservancy
A bright-faced songbird of the Texas Hill Country still faces enough threat from population growth and land development in the San Antonio-Austin region to need shelter under the Endangered Species Act, a federal judge in Austin has ruled.
Senior U.S. District Judge Sam Sparks sided with the U.S. Fish and Wildlife Service last week in a case centered on the golden-cheeked warbler, a 3- to 5-inch migratory songbird that only nests in around 39 counties in Central Texas. The Texas General Land Office had sued the Service to get the bird taken off the endangered list.
The bird has long been a symbol in the environmental tug-of-war over growth in the Hill Country. Citing its continued loss of habitat to new subdivisions, businesses, roads, reservoirs, and other human activity, the U.S. Fish and Wildlife Service has continued to keep the golden-cheeked warbler on the endangered list since it was first placed there in 1990.
The seldom-seen warbler spends its winters in Mexico and Central America before returning to its Texas nesting grounds each year. It raises its young in nests woven from Ashe juniper bark and spiderwebs.
Its nesting grounds include Bexar County, where the bird is becoming an increasing problem on military bases. Federal law requires the military to abide by the Endangered Species Act by protecting the trees where the warblers nest and avoiding disturbing the birds during nesting season. Military officials have said these restrictions threaten the ability to train combat medics at Camp Bullis.
Landowners who harm the bird or cut down its nesting trees also could face penalties under the Endangered Species Act, though such punishment from regulators is rare.
In 2017, the Texas Public Policy Foundation, a free market think tank, sued the federal government on behalf of the Texas General Land Office, citing a 2015 Texas A&M University Institute of Renewable Natural Resources study that estimated 19 times more warblers exist than previously thought.
In his ruling, Sparks wrote that the U.S. Fish and Wildlife Service had properly considered the Texas A&M study in its review. Despite the study, the service has still found the warbler is facing enough threats to warrant protection.
Environmental groups hailed the ruling as a recognition of how sprawl continues to affect the Hill Country.
“We’re thrilled that this cynical attempt to take protection away from the warbler has been stopped,” Ryan Shannon, a staff attorney at the Center for Biological Diversity, said in a prepared statement. “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.”
“This was no surprise at all,” said James Cannizzo, an environmental lawyer for the Army who works with officials at Camp Bullis and Camp Stanley in northern Bexar County. He said the warbler population is rising on the military bases as new neighborhoods and businesses push the birds off their former habitat
In 2005, Camp Stanley had 15 pairs of warblers, Cannizzo said. Now it’s up to 55 pairs. Occupied warbler habitat at Camp Bullis has gone up from 3,200 acres in 2008 to 8,000 acres now, he said.
Cannizzo pointed to the development around the base, turning it into an isolated pocket of warbler habitat surrounded by suburbia.
“If [the warbler’s] tree and his hillside’s gone, and he looks around and Camp Bullis and Camp Stanley are the only things left, guess where he’s going to go.”
In an emailed statement, General Land Office officials said they are “consulting with our attorneys regarding appealing the case.”
“The removal of the golden-cheeked warbler [from the endangered list] would restore the rights of landowners to effectively manage our own properties, without oversight from the federal bureaucracy,” the statement reads.
As one example of conflict over the warbler, the bird’s presence on a 2,300-acre ranch in northwestern Bexar County owned by the General Land Office ended up preventing the agency from turning the ranch into a 715-home subdivision.
Robert Henneke, director of the Texas Public Policy Foundation’s Center for the American Future, said the ruling didn’t address the merits of whether the bird is truly at risk of extinction.
“It’s important to note that the court decided on principles of deference to the [U.S. Fish and Wildlife Service],” he said. “There wasn’t a determination of the underlying facts.”
Henneke also pointed to the court’s acknowledgment that the U.S. Fish and Wildlife Service did not designate “critical habitat” for the warbler – specific areas that are crucial for the species’ survival.
“If you never define critical habitat, then it’s really hard to quantify and address destruction of that undefined area,” Henneke said.
Cannizzo said the critical habitat issue is “kind of a red herring” and “so hypertechnical” that “very, very few people would even understand the concept.”
“The main thing is that while most biologists and people who have been dealing with the warbler think that there are maybe two or three times as many of them [as originally thought], I haven’t met anybody other than that Texas A&M study that thinks there’s 19 times as many,” Cannizzo said. “And if you look at habitat fragmentation, especially here in Bexar County, we have horrible habitat fragmentation.”