ELR Citation: 47 ELR 20155
No(s). 1:17-cv-00538-SS (W.D. Tex. Nov 30, 2017) (Sparks, J.)

A district court held that the state of Texas cannot challenge the listing of the golden-cheeked warbler as endangered under the ESA. The state brought a lawsuit against FWS alleging that the agency unlawfully dismissed a petition to delist the golden-cheeked warbler. The petition provided evidence that there were nineteen times more warblers than at the time the species was first listed. After a 90-day finding, FWS denied the petition. The lawsuit alleged that FWS violated the ESA when it did not designate a critical habitat when it listed the warbler, failed to consider new evidence and scientific data when declining to delist the warbler, and violated NEPA by not preparing an EA or EIS in listing the warbler. The court held that the six-year statute of limitations had tolled on challenging the listing, which occured in 1990. Further, the court held that FWS was not required to follow NEPA when it makes a decision to list a species. However, the court preserved Texas' right to challenge FWS listing the species without designating a critical habitat.