Judge tosses FWS listing of lesser prairie chicken

Jeremy P. Jacobs, E&E reporter
Published: Wednesday, September 2, 2015


A federal judge threw out yesterday the Fish and Wildlife Service’s decision to list the lesser prairie chicken as threatened under the Endangered Species Act.

The March 2014 listing — the result of more than a decade of efforts by conservationists — was sharply criticized by agriculture and industry interests because the prairie chicken’s habitat spans farmland in five southern Great Plains states and includes the oil-rich Permian Basin (E&ENews PM, March 27, 2014).

Four New Mexico counties and the Permian Basin Petroleum Association challenged the listing in court, and yesterday Judge Robert Junell of the U.S. District Court for the Western District of Texas sided with their arguments.

Junell held that FWS failed to follow its own regulations for considering ongoing conservation efforts for a species before listing it.

Five states — Texas, New Mexico, Oklahoma, Kansas and Colorado — have established a rangewide conservation plan administered by the Western Association of Fish and Wildlife Agencies, or WAFWA. The effort was meant to prevent the species’ listing under the ESA.

Junell said FWS’s regulations require the agency to fully consider such conservation measures — including ones that have yet to be implemented — to see whether they will be sufficient to avoid a listing.

The agency, he concluded, failed to adequately weigh the rangewide plan, which encourages industry and landowners to protect habitat through mitigation and offsetting land.

Critics of the listing decision cautioned that it could derail drilling, as well as wind farms in the five states.

WAFWA says its conservation effort has included landowners committing to conserving nearly 100,000 acres of habitat over 10 years. Additionally, it claims industry partners have pledged $46 million in mitigation and enrollment fees to pay for conservation. Oil, wind, gas, electric and pipeline companies have secured about 11 million acres across the states, the group says.

Wyoming Rep. Cynthia Lummis (R), who has led efforts to undo the listing decision, applauded the ruling.

“Judge Junell caught the Fish and Wildlife Service playing fast and loose with its own rules,” Lummis said in a statement. “There is a better way to serve species and people in the 21st Century and that’s with collaborative conservation like the Rangewide Plan, which doesn’t need a federal listing to flourish.”

Conservationists criticized the decision, saying it gave too much weight to industry arguments.

“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,” Noah Greenwald of the Center for Biological Diversity said in a statement. “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.”