Little Bird Is A Big Deal In Texas

Brian Seasholes Policy Analyst, Reason
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Sometimes small things make huge differences. Take the golden-cheeked warbler, a small, beautiful songbird with contrasting golden-yellow and black on its head that nests only in central Texas and is protected under the Endangered Species Act. The warbler has generated enormous controversy as the centerpiece of a massive land use control plan pushed by the Clinton administration in the early 1990s, influenced the 1994 race for governor in favor of George W. Bush, triggered a grassroots movement that resulted in Texas’s landmark 1995 private property protection law, and has been the bane of homeowners, ranchers, developers and others who have seen their property values plummet and paid exorbitant mitigation and surveying fees due to federal regulations for the bird.

Now, an effort is underway to petition the federal government to remove the golden-cheeked warbler from federal protection under the Endangered Species Act because scientific studies show the bird’s population is so large and habitat so extensive that the species does not merit the Act’s protection. The petitioners to delist the warbler consist of Texans for Positive Economic Policy, Susan Combs, a fourth generation rancher from west Texas and a former state representative, agriculture commissioner and comptroller, Texas Public Policy Foundation, and Reason Foundation. If the past is any guide, the effort to delist the warbler is likely to generate Texas-sized controversy.

The U.S. Fish and Wildlife Service listed the golden-cheeked warbler under the Endangered Species Act in 1990 based on very limited and inadequate data because the agency wanted to use the bird to stop development in much of the fast-growing Austin region. The agency relied on essentially two studies, one commissioned by the Service and published in 1990, which conveniently concluded the warbler was in dire shape. At the time, the bird’s population supposedly consisted of only 13,800 pairs of warblers in 813,000 acres concentrated around Austin, the state capital.

As a result, the Service took the highly unusual step of listing the warbler on an emergency basis that short-circuited the normal process and allowed little time for public comments, which the Service ignored anyway because it was hell-bent on listing the warbler as a land use control tool. Development was the overwhelming reason for listing the warbler, and the Fish and Wildlife Service painted a grim picture. “At present rates, the estimated maximum carrying capacity of the habitat will be 2,266-7,527 pairs of golden-cheeked warblers by the year 2000, a reduction in population size of more than 50 percent,” the agency claimed. Extinction seemed a very real prospect.

It turns out all this was hugely overblown. A number of peer-reviewed studies published in the early 2010s, primarily by researchers at Texas A & M University, document that compared to 1990 the warbler’s population is nineteen times larger, breeding habitat is five times larger and much more widely distributed, and the warbler can breed in a much wider range of habitat types. Furthermore, the warbler does not have geographically separate, self-sustaining populations, which means there is no basis for the Fish and Wildlife Service trying to divvy the species up into “distinct population segments”, which the agency might try to do to preclude delisting. All of this scientific research is a slam dunk because there is no basis for keeping the warbler listed under the Endangered Species Act.

Unfortunately, the Fish and Wildlife Service has given strong indications that it will try to fight reality in order to keep the warbler listed. Despite that the Act mandates the status of each species be reviewed by the federal government every five years, the Fish and Wildlife Service did not bother to publish a review for the warbler until August 2014, nineteen years late. In preparation for the review, the Service commissioned a study, published in 2010, that pointed out serious deficiencies with the data and assumptions upon which the Service listed the warbler. Yet the 2014 review ignored the study’s embarrassing conclusions. More significantly, the Service’s 2014 review was a sham because it discounted and ignored findings from the spate of peer-reviewed studies in the early 2010s that provide the key evidence for why the warbler no longer merits the Endangered Species Act’s protection.

Also, there is no reason to keep the warbler listed because if it is delisted it will be protected by a wide range of federal and state laws, protected areas and conservation programs.

One of the unfortunate aspects of the golden-cheeked warbler’s listing under the Endangered Species Act is that the Act may well have done the bird more harm than good. “I am convinced that more habitat for the black-capped vireo, and especially the golden-cheeked warbler, has been lost in those areas of Texas since the listing of these birds than would have been lost without the ESA,” stated Larry McKinney, then with the Texas Parks and Wildlife Department and currently Director of the Harte Research Institute for Gulf of Mexico Studies at Texas A&M University-Corpus Christi. McKinney’s observation exposes the dirty secret of the Endangered Species Act. The Act’s punitive approach creates strong incentives for landowners to destroy and degrade habitat, refuse to allow researchers on their land, and go silent in the hope that the presence of endangered species is not noticed by regulatory authorities.

Fortunately, Texas, has charted a highly successful approach to working with landowners to conserve endangered and potentially endangered species, which began under the leadership of Susan Combs during her tenure as agriculture commissioner and comptroller. A key aspect of this approach is keeping the identities of landowners involved in species conservation programs confidential so that they will feel protected enough from the federal government, which wields the Endangered Species Act’s penalties, to allow researchers on their land.

The pilot project incorporating landowner confidentiality agreements started in the mid-2000s for the golden-cheeked warbler in the vicinity of Fort Hood. Then in 2011 surveys for the dunes sagebrush lizard in west Texas, which also included landowner confidentiality agreements, dramatically increased the known lizard population in Texas. This increased population was a key factor in the federal government’s decision in 2012 not to list the lizard under the Endangered Species Act. Another significant aspect of Texas’s approach to endangered species is to fund high quality, academic research to determine if species merit the Act’s protection, such as the research carried out for the golden-cheeked warbler.

As Texas has shown, there is a much more successful path to endangered species conservation that includes high quality science, protecting landowners, and heading in the opposite direction of the Endangered Species Act.