Texas General Land Office Sues US Government to Remove Native Bird from the Endangered Species List

On Wednesday, the General Land Office of the State of Texas (TXGLO) filed a complaint in the Western District of Texas against the U.S. Department of the Interior, U.S. Fish and Wildlife Service, and the Southwest Regional Director of the U.S. Fish and Wildlife Service for allegedly violating the Endangered Species Act by failing to remove the Golden-Cheeked Warbler from the endangered species list.

TXGLO is a state agency in charge of selling public school lands and leasing mineral rights in order to fund the Permanent School Fund, the complaint said. They filed a 90-day petition on June 29, 2015, to remove the Warbler from the endangered species list, thus removing protections on its habitat, as they found the population was 19 times greater than what was expected, their habitat was much larger than previously believed and that “many existing conservation plans and mechanisms exist for the Warbler such that the probability of its extinction over the next 100 years is low.”

Approximately one year later, the complaint explained, U.S. Fish and Wildlife Service made a 90-day finding denying the plaintiffs’ petition, claiming there was “ongoing, widespread destruction of [Warbler] habitat.” This decision was eventually overturned by the Fifth Circuit Court of Appeals, who stated that “[t]he Service recited [the correct] standard, but a careful examination of its analysis shows that the Service applied an inappropriately heightened one.”

On July 27, 2021, the Service published a new 90-day finding arguing in favor of keeping the Warbler on the endangered species list; however, the defendants allegedly did not include any “new data or study results” which is required to plead their case. The plaintiffs claimed that the Service acted in an arbitrary and capricious manner by publishing a new 90-day finding without considering the plaintiffs’ findings and without producing new data. TXGLO believes that the lack of new evidence proves that the Warbler should not be on the endangered species list.

TXGLO is seeking declaratory and injunctive relief to vacate the U.S. Fish and Wildlife Service’s new 90-day finding and a declaration that their actions were arbitrary and capricious, attorney’s fees and costs, and other relief.

The plaintiffs are represented by the Texas Public Policy Foundation.