Texas sues over lizard, wins latest round in nearly 10-year battle over warbler

(The Center Square) – Texas has sued the Biden-Harris administration again, this time for classifying a lizard in the Permian Basin as an endangered species. The lawsuit claims the classification is in violation of the Endangered Species Act.

At the same time, Texas won the latest round of a nearly 10-year legal battle over a similar designation for a songbird.

Texas sued after the U.S. Fish and Wildlife Service classified the Dunes Sagebrush Lizard as an endangered species after more than a decade of public-private conservation efforts to expand its habitat in the oil-rich west Texas and southeastern New Mexico Permian Basin.

The DSL only lives in the Permian Basin, the greatest oil-producing region in the country. The USFWS said it made the designation “after a rigorous review of the best available scientific and commercial information, a 90-day public comment period, and a public hearing and information session” and after “100 ranchers and 100 oil and gas partners” in New Mexico and Texas enrolled in voluntary agreements to protect it. The USFWS also said oil and natural gas industry practices preserved the species after it first approved a Texas Conservation Plan candidate conservation agreement in 2012, The Center Square reported.

The lawsuit was filed after Attorney General Ken Paxton earlier notified the administration that Texas would sue to stop the ESA designation. The USFWS issued the designation using “flawed assumptions about oil and gas development and unfounded speculation about climate concerns,” he said.

Critics argue the designation was made solely as a political move months before the November election to appease environmentalists and “shut down American oil and gas” when the industry says it has empirical evidence of its successful conservation efforts.

“The Biden-Harris Administration’s unlawful misuse of environmental law is a backdoor attempt to undermine Texas’s oil and gas industries which help keep the lights on for America,” Paxton said. “I warned that we would sue over this illegal move, and now we will see them in court.”

The lawsuit was filed in U.S. District Court for the Western District of Texas Midland-Odessa Division on Monday. It names the U.S. Department of the Interior, USFWS, and their respective agency heads as defendants.

It argues the federal government violated the Administrative Procedure Act and the Endangered Species Act and the USFWS “failed to rely on the best scientific and commercial data available when it designated the [DSL] as endangered.” The USFWS also relied on a faulty model to issue the designation, making “inaccurate and arbitrary assumptions about the current status of the species.”

It also ignored ongoing voluntary conservation efforts implemented by local and state officials, the lawsuit argues, which “would unduly undermine vital economic development in the Permian Basin, subjecting Texas industries and private landowners to regulatory uncertainty and ambiguity about what they can do with their own land.”

The lawsuit asks the court to vacate a USFWS administrative rule implementing the designation as invalid.

Also this month, the Texas General Land Office won a lawsuit in a legal challenge fought by the Texas Public Policy Foundation since 2015 over a USFWS ESA designation for a songbird, the Golden-Cheeked Warbler. The lawsuit argues the regulation infringes on Texans’ private property rights and decreases the value of assets in the Permanent School Fund, which benefits public school children managed by the GLO.

Since 1990, the GCW’s protected status has severely restricted private property use in Central Texas. In 2015, TPPF filed an administrative petition with the USFWS to remove the GCW from its endangered species list. After a five-year battle in federal courts, the Fifth Circuit ruled in TPPF’s favor, saying the USFWS’s refusal to evaluate delisting the GCW as endangered, based on evidence that it is not threatened, was illegal. It also instructed the USFWS to review the 2015 administrative petition, which it refused to do. TPPF sued again in January 2022 in federal district court again asking the court to require the USFWS to comply with federal law. Nearly two years later, TPPF again won. On Sept. 5, the court ordered the USFWS to evaluate the 2015 petition.

“Nothing permitted the U.S. Fish and Wildlife Service to ignore the Fifth Circuit’s order – but that is exactly what the Service did,” TPPF Senior Attorney Ted Hadzi-Antich said in a statement. “The court held the Service’s feet to the fire and required it to follow the Fifth Circuit’s instructions. That should send a message to all federal administrative agencies seeking to arrogate power for themselves that does not belong to them.”

“The court recognized a simple truth: federal agencies must follow the law,” TPPF attorney Connor Mighell said. “Now the Service must do its job and examine our Petition’s evidence, rather than inventing improper ways to dismiss it.”