Texas Agency Sues to Remove Rare Bird Species from Endangered Species List

The General Land Office of the State of Texas (TXGLO) sued the U.S. Fish & Wildlife Service (FWS), alleging that FWS has applied an “impermissibly heightened standard of review” in continuing to deny petitions to delist the golden-cheeked warbler under the Endangered Species Act. TXGLO, which owns properties that encompass critical habitat for the imperiled warblers, first sued FWS to challenge the warbler’s listing status in 2017. The district court upheld FWS’ findings and decision to maintain the warbler’s listing status, but the 5th Circuit reversed and vacated FWS’ findings on appeal, ordering the federal agency to engage in a new analysis of whether the warbler still met the statutory requirements for listing under the Endangered Species Act. In 2021, FWS published its new analysis, again finding that delisting the warbler was not warranted. In the instant case, TXGLO is seeking vacatur of FWS’ 2021 analysis and a new 90-day finding.