Scientists fight over threat to Texas songbird—and who owns the data

The golden-cheeked warbler sits just a few centimeters high and weighs 15 grams. But the diminutive Texas songbird is causing an outsize political flap, from courthouses to the pages of an academic journal. At stake are the fate of an endangered species, land development plans worth millions of dollars—and scientific reputations.

A long-running saga over whether the warbler deserves legal protection took an unexpected twist this month, when a scientific journal reinstated a study showing alarmingly low bird numbers, which the journal editor had previously said should be retracted for plagiarism. The Journal of Field Ornithology republished the controversial paper alongside three separate commentaries in which dueling research teams trade allegations of sinister motives, censorship, and misuse of data. And the journal editor admits he is publishing the paper now against his better judgement.

The editor, Gary Ritchison, a biologist at Eastern Kentucky University in Richmond, told Science he reversed his 2016 decision to retract the paper after taking advice from lawyers at the journal’s publisher Wiley and the Council on Publication Ethics, a global advisory body based in the United Kingdom. “I think this is the end of it,” he says.

But although he accepts their judgement, he does not agree with it. Preparation of the contested paper “violated the spirit of appropriate scientific communication and what we view as accepted norms of collaboration and authorship” he writes in a commentary in the journal.

The warbler breeds only in parts of Texas, where it builds nests from the fallen bark of the juniper trees. In response to accelerating loss of its habitat, the U.S. Fish and Wildlife Service gave the warbler protected status in 1990. This placed restrictions and expensive conditions on development, including on private land. Many landowners have lodged objections and tried to weaken the statutory protection for the bird.

In 2015, Texas Land Commissioner George P. Bush (son of former Florida Governor Jeb Bush and nephew of former President George W. Bush) announced his support for a petition to remove the warbler from the endangered list. He said the protection was based on outdated science and had “devastated private property owners across central Texas.”

Both the petition and a separate lawsuit to delist the birds drew heavily on a study of warbler numbers funded by the Texas Transportation Commission. The survey had tracked the bird across the state, including in the Balcones Canyonlands Preserve (BCP), about 50 kilometers northwest of Austin. Published in 2012, that work suggested the birds were relatively common—a conclusion that ecologists disputed.

In 2015, however, a team led by Lisa O’Donnell, who works in wildlife conservation for the city of Austin, reported a very different picture. It used field data and computer models—some from the earlier study—to estimate warbler numbers in the BCP. They found the birds were scarcer than previous estimates had suggested, a result that strengthened the case for rules to protect them. They published the findings in the Journal of Field Ornithology in 2015.

But the arguments switched from science to publication ethics when O’Donnell’s team was accused of using the older project’s analysis without permission. The complainants, including Bret Collier of Louisiana State University in Baton Rouge and Michael Morrison of Texas A&M University in College Station, say the permission granted by Austin for their survey in the BCP did not allow others to use their model, because it was based on data gathered at many sites. As such, they insist the model was their intellectual property.

“In a way it was a compliment,” O’Donnell says. “They were not able to critique our science so they had to resort to data use.” The "criticisms fail to serve any purpose other than to obfuscate and undermine an otherwise robust, transparent scientific process," O'Donnell and colleagues write in their response to the critique.

Ritchison, however, agreed with the complainants, and took steps to retract the paper. “We were aware that in conservation terms this would be a useful paper,” he says. “But even though we’re all interested in birds we decided we needed to treat it as an academic issue.”

Technically the O’Donnell paper was never formally retracted, he says, because the process was halted by the lawyers. But he still thinks it should have been. “From an ethical standpoint, if not a legal standpoint, [they] should not have included those estimates in their paper.”

In a commentary in the Journal of Field Ornithology , Collier and Morrison say the decision to not retract O’Donnell’s paper “should prove a frightening precedent for any scientist who signs a contract for property access.”

Meanwhile, efforts to delist the warbler have foundered. The Fish and Wildlife Service denied the 2015 petition, and last month, a federal judge rejected the lawsuit to delist the bird.