On Thursday, September 5, 2024, the Western District of Texas ruled in favor of the General Land Office of the State of Texas (GLO) and determined that the Biden Administration misapplied the law for a second time to deny the Texas Public Policy Foundation's (TPPF) petition to delist the golden-cheeked warbler.
The golden-cheeked warbler is a songbird that nests entirely in Texas. Although the U.S. Fish and Wildlife Service listed the warbler as endangered in 1990, recent scientific advances have provided evidence suggesting there are more warblers and greater habitat than initially believed. TPPF petitioned the Service in 2015 with this evidence, requesting a review of the warbler’s status.
The law mandates that the Service review a species' status if presented with evidence indicating delisting "may be warranted." However, the Service refused to review TPPF's petition.
Because maintaining the warbler’s endangered status devalues GLO’s Permanent School Fund, GLO sued the Service, represented by TPPF’s Center for the American Future (CAF). In 2021, the Fifth Circuit found that the standard used by the Service to deny TPPF's petition was impermissibly high and ordered them to reconsider it.
Despite this order, the Service again applied a heightened standard to deny TPPF's petition. Consequently, GLO, represented once more by CAF, filed suit to hold the Service accountable for its continued improper behavior.
The district court found that by denying TPPF's petition using an overly stringent standard of review, the Service repeated its previous error. The court ordered them to evaluate whether reviewing the warbler’s status "may be warranted."
"As Texas Land Commissioner, I am thrilled that this ruling will hold the U.S Fish and Wildlife Service accountable to adhering to the Fifth Circuit’s order. Federal agencies are not above the law, and this ruling reflects that," said Commissioner Buckingham. "I look forward to a thorough review of our evidence showing golden-cheeked warblers are far more prevalent in Texas than originally reported. It is my hope their endangered status will ultimately be reconsidered, allowing property owners to make decisions regarding their land without federal government interference."
"Nothing permitted the U.S. Fish and Wildlife Service to ignore the Fifth Circuit’s order—but that is exactly what they did," said TPPF Senior Attorney Ted Hadzi-Antich. "The court held their feet to fire and required them to follow instructions. That should send a message to all federal administrative agencies seeking power beyond their mandate."
"The court recognized a simple truth: federal agencies must follow law," said Connor Mighell. "Now they must do their job and examine our Petition’s evidence rather than inventing improper ways to dismiss it."
