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Lawsuit claims Texas bird threatens development along I-35

The Texas General Land Office contends the Golden Cheeked Warbler does not belong on the endangered species list.

SAN ANTONIO — Texas Land Commissioner George P. Bush contends a small bird is misclassified as "endangered," threatening development along the I-35 corridor.

The Golden Cheeked Warbler is the only bird born and reared exclusively in Texas. The warbler migrates to land between San Antonio and Waco in March. 

Adults use stripped bark from the Ashe Juniper tree, commonly referred to as Mountain Cedar, to construct nests. 

But commercial real estate developers routinely cut down Ashe Juniper trees to clear land. Small property owners may also remove the trees to eliminate the allergens associated with its pollen. 

As trees came down, the feds determined that nesting bark was becoming scarce. The U.S. Fish and Wildlife Service (FWS) thus added the Golden Cheeked Warbler to its endangered species list in 1990.

Now, developers must secure special building permits and comply with strict regulations meant to protect the animal.

Bush contends the classification also drives down private property values.

At one point, the listing threatened military operations at JBSA-Camp Bullis. The Army struck a land deal with Bexar County and a nature conservancy to continue its work. 

"This really is about common sense," Bush, who is running for Texas Attorney General, told KENS 5. 

Bush points to a single Texas A&M study, funded by the Texas Department of Transportation, indicating the warbler population is healthy. Initial research about the bird underestimated its proliferation, he says. 

"For way too long in our country, we've evaluated success by listing species as endangered rather than delisting," he said. "We've got to use sensible economic development policy and allow Texans to design the best way forward."

Texas petitioned FWS to delist the bird years ago, but the feds disputed Texas A&M's research. A court decided the department effectively made up a rule to justify its refusal.

The 5th U.S. Circuit Court of Appeals, one of the nation's most conservative judicial bodies, instructed the service to reassess Texas's petition. 

"Lo and behold, they used exactly the same standard the fifth circuit told them not to use," said Ted Hadzi-Antich, a Texas Public Policy Foundation attorney suing FWS with the land office. 

"The court said, 'A' and the agency did 'Z,'" he said. "So here we are." 

Hadzi-Antich has asked the court to instruct FWS, at minimum, to judge the petition by its usual standards. 

"That doesn't mean the warbler is delisted," he said. "It only means that FWS goes through another review - this one for 12 months." 

Legal fights over the bird's listing have already dragged on for a decade. 

"None of us wants to harm the environment," Hadzi-Antich said. "Every one of us has risks that we deal with every day, as do all the creature's on God's earth. They are trying to basically minimize any risk to critters by maximizing economic risk to humans."