Judge Upholds Service's Denial of Petition to Delist Golden-Cheeked Warbler

On February 6, 2019, a federal judge upheld U.S. Fish and Wildlife Service’s (Service) 90-day finding that a petition to delist the endangered golden-cheeked warbler (Petition) did not present substantial information that delisting the warbler may be warranted (Negative 90-day Finding). In 2015,  various groups and individuals filed the Petition, which, among other things, alleged that because a 2015 study indicated that the golden-cheeked warbler and its habitat were far more abundant than the Service originally believed at the time of the bird’s listing in 1990, the bird should be delisted. In 2016, the Service issued its Negative 90-day Finding, which acknowledged the increase in the warbler’s numbers and range, but found that threats of habitat loss and fragmentation remained, and that the bird was still at risk of decline due to disease and predation. The General Land Office of Texas then sued the Service alleging three flaws in the Service’s Negative 90-day Finding: (1) the Service violated the Endangered Species Act (ESA) when it listed the golden-cheeked warbler without designating critical habitat; (2) the Service improperly denied the Petition and improperly refused to designate critical habitat; and (3) the Service violated the National Environmental Policy Act by failing to prepare an environmental assessment or environmental impact statement when it initially listed the warbler, when it published the 5-year review of the status of the warbler, and when the Service issued the Negative 90-day Finding.  The court dismissed the first and third claims, leaving only the claim concerning improper denial of the Petition.

Despite information indicating increased abundance of the warbler, the court found that the State did not meet the burden required under the Administrative Procedure Act to overturn the Service’s Negative 90-day Finding. Rather, the court found that the Petition failed to address other threats faced by the golden-cheeked warbler, and the Service was reasonable in relying on these other threats in denying the Petition.

A separate case challenging the Service’s denial of a delisting petition (concerning a small karst invertebrate species) remains under consideration by the U.S. District Court for the Western District of Texas. That case, before Judge Lee Yeakel, alleges the Service violated the Administrative Procedure Act in denying a petition to delist the Bone Cave harvestman. Arguments in that case were held in March 2018.

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    Rebecca Barho focuses her practice on natural resource law, with particular emphasis on the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA), and various Texas ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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