Judge blocks Endangered Species Act listing of lesser prairie chicken

By Whitney Forman-Cook

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WASHINGTON, Sept. 2, 2015 - The Western District Court of Texas vacated a 2014 “threatened” listing of the lesser prairie chicken Tuesday on the grounds that the U.S. Fish and Wildlife Service (FWS) incorrectly determined that voluntary conservation action wouldn't be enough to protect the bird.

The lesser prairie chicken was listed as threatened under the Endangered Species Act last March after FWS determined conservation efforts on the part of landowners and industry would not assuage the bird's population decline. According to the agency, the species' population has fallen 84 percent in the last 15 years due to habitat degradation and drought.

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Permian Basin Petroleum Association, an oil and gas trade group, challenged the listing in court along with four New Mexico counties, claiming that the voluntary support was sufficient. Several other energy sector companies have come out in strong opposition of regulatory protections for the bird as well, claiming that land use restrictions throughout the bird's five-state Great Plains range would unduly burden energy exploration and extraction.

District Judge Robert Junell agreed with PBPA. 

“The Court finds FWS did conduct an analysis” of stakeholder participation, Junell wrote in his opinio. "However, this analysis was neither ‘rigorous' nor valid as FWS failed to consider important questions and material information necessary to make a proper … evaluation,” Junell wrote.

Congress has made several attempts to defund implementation of the lesser prairie chicken listing protections through the appropriations process.

In May, the House voted to approve a defense authorization measure that included a provision to keep the bird from being listed as a threatened species until 2021. Just over a month later, the Senate Appropriations Committee referred a bill funding the Interior Department and the Environmental Protection Agency that barred FWS from enforcing the bird's listing.

House Natural Resources Committee Chairman Rob Bishop, R-Utah, released a statement in support of the court and accusing FWS of “illegally steamrolling states by their own secret rules.”

“This is exactly way the House passed provisions to stop FWS from undoing the states' conservation work on both the lesser prairie chicken and the sage grouse,” Bishop said. An FWS listing decision on the greater sage grouse is due by Sept. 30.

Senate Environment and Public Works Committee Chairman Jim Inhofe, R-Okla., concurred with Bishop, claiming the lesser prairie chicken's population has actually grown by 20 percent since 2014.

“The increase in LPC (lesser prairie chicken) population shows that states, industry, and farmers have proven their ability to steward their land and successfully conserve the LPC population without the need for big government interference,” Inhofe said.

In addition, he continued, “Oklahoma and four other states in the LPC's range established non-federal conservation plans prior to the administration's decision to list the species” that FWS should have given more consideration.

The Center for Biological Diversity (CBD) released a contrary statement that said the lesser prairie chicken is still in danger, having decreased in numbers by 99 percent and having lost 85 percent of its habitat due to oil derricks, roads, pipelines and other development. 

“This decision turns the Endangered Species Act on its head by concluding the Fish and Wildlife Service should have given the benefit of the doubt to the oil and gas industry, rather than a species that has seen its habitat and populations vanish,” said Noah Greenwald, the endangered species director at CBD. “The lesser prairie chicken was first identified as needing protection in 1995, yet the oil and gas industry did nothing to ensure its survival for 20 years until regulations were proposed to protect it.”

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