Endangered Species Law & Policy

On January 15, 2020, the United States Court of Appeals for the Fifth Circuit reversed a lower court decision that upheld the determination of the U.S. Fish and Wildlife Service (Service) denying a petition to delist the Golden-Cheeked Warbler (Setophaga chrysoparia) (Warbler). The Service listed the Warbler as an endangered species under the Endangered Species Act (ESA) in 1990, initially on an emergency basis.

The petition to delist the Warbler was submitted to the Service in 2015 by a group of petitioners that included the General Land Office of the State of Texas. The petition presented evidence that the extent of known Warbler habitat had more than quadrupled since the species was listed and that recent population estimates for the Warbler indicate that an increase in the known population by a magnitude of 19 or more.  A year prior, the Service had issued a five-year status review concluding that continued listing is justified. In 2016, the Service published a 90-day finding that delisting the Warbler is not warranted. The Service acknowledged that the known range of the warbler was more extensive at the time the petition was filed than at the time of listing, but it cited threats to habitat described in its 2014 five-year status review as grounds for continued listing.

The Fifth Circuit agreed with the State of Texas in holding that the Service’s decision to deny the delisting petition is arbitrary and capricious in violation of the Administrative Procedure Act. The court noted that the Service must find that delisting may be warranted at the 90-day stage if the petition contained substantial scientific or commercial information indicating that the petitioned action may be warranted, quoting section 4 of the ESA. The court went on to hold that the Service recited the correct standard but applied an inappropriately heightened standard. In brief, the Service erred by requiring that the petition contain information not considered in its prior five-year status review to refute the conclusions in that review.

Nossaman represented amicus curiae American Stewards of Liberty in the case, supporting the position of the State of Texas.