Phil Taylor, E&E reporter
Published: Thursday, September 3, 2015
A judge’s decision Tuesday to strip federal protections from a prairie grouse that roams the southern Great Plains has thrown into question how the government considers voluntary conservation measures when issuing listing decisions under the Endangered Species Act.
The decision could influence how the Fish and Wildlife Service considers voluntary conservation programs in other high-profile listing decisions, such as the greater sage grouse.
The ruling by Judge Robert Junell of the U.S. District Court for the Western District of Texas overturned the agency’s decision in spring 2014 to list the lesser prairie chicken as threatened in Texas, New Mexico, Oklahoma, Kansas and Colorado, where the bird’s native grassland and prairie habitat had shrunk by 84 percent (E&ENews PM, March 27, 2014).
Legal experts said it’s quite rare for a federal court to overturn a FWS listing decision.
Junell ruled that FWS failed to consider the extent to which a rangewide conservation plan crafted and administered by state wildlife agencies and supported by energy companies and landowners would ameliorate the chicken’s top threats — including oil and gas wells, grazing, tree encroachment, and conversion of rangeland to crops.
It was a major victory for plaintiffs, including the Permian Basin Petroleum Association and four southeast New Mexico counties that are flush with oil, said Jim Banks, an attorney with Hogan Lovells, who represented the oil and gas group in the case.
“Our clients … all feel vindicated by the decision because they were among the leaders putting their resources into the rangewide plan,” Banks said.
But environmental groups and some ESA experts said Junell’s ruling would likely lose on appeal because it gave too little deference to FWS to decide whether the rangewide plan would be enough to halt the bird’s path to extinction.
“This decision is something of an outlier in refusing to defer to the agency,” said Daniel Rohlf, a professor at the Lewis & Clark Law School. “I think the plaintiffs had sort of a home-court advantage, so to speak.”
The government has not said whether it will appeal the ruling to the 5th U.S. Circuit Court of Appeals.
“We are very disappointed in the judge’s decision and are now considering options in conjunction with our legal counsel,” said Gavin Shire, a spokesman for FWS.
The ruling drew praise from a handful of Republican lawmakers who argued the government’s listing decision was a slap in the face to states, oil and gas companies, and farmers who had agreed to invest tens of millions of dollars into prairie chicken conservation with the belief that those steps would be enough to avoid the regulatory teeth of ESA.
In listing the chicken, FWS also introduced a special rule that exempted participants in the rangewide plan from the law’s strictest mandates.
Junell said FWS’s listing decision was fatally flawed because it “was not sufficiently thorough” in its analysis of the rangewide plan, rendering its listing decision “arbitrary and capricious.”
At issue is FWS’s implementation of its Policy for Evaluation of Conservation Efforts (PECE), a framework it and the National Marine Fisheries Service adopted in 2003 to help them decide whether incipient conservation plans such as the prairie chicken rangewide plan are sufficient to avoid listing species under ESA.
PECE lists nine criteria for deciding whether a conservation action is certain to be implemented and six additional criteria for deciding whether such action is likely to be effective.
The policy aims to ensure “fledgling plans have the opportunity to make a listing unnecessary,” the court said. FWS also needed it to ensure its listing decisions were more defensible in court.
At the time of FWS’s prairie chicken listing decision, its PECE analysis found that 17 industry participants had enrolled 169,534 acres in the rangewide conservation plan, but no landowners had enrolled. The plan developed by the Western Association of Fish and Wildlife Agencies (WAFWA) requires companies to mitigate for unavoidable impacts to habitat by paying landowners to perform bird-friendly grazing, brush management, prescribed burning and native plant restoration, in addition to reclaiming unneeded roads and well pads.
FWS found there was “a high level of uncertainty regarding who will implement the conservation practices to offset industry enrollment and associated impacts,” the court said.
But that conclusion was flawed, Junell wrote, because the enrollment period for the plan had just opened and was ongoing.
“PECE is intended to look forward and make a projection as to the number of landowners it anticipated,” Junell wrote. “FWS should have considered factors not presently included in the record, such as prior industry and landowner participation in other conservation efforts in the area and FWS’s assessment of [the rangewide plan’s] incentives — Was it a good deal? Would those incentives make landowner participation more likely?”
The court also disagreed with one of FWS’s key assumptions in its listing decision: that industry would have less incentive to participate in the rangewide plan if the threat of a listing were lifted.
The assumption “replaced and prevented any meaningful analysis” of whether the conservation plan would be implemented and “tainted” the service’s evaluation of whether the plan would be effective, the court ruled.
In contrast, the court rejected the plaintiffs’ other two claims: that FWS failed to articulate a rational basis for its decision based on the best scientific evidence available and that FWS failed to respond to “significant and highly relevant comments” raised by plaintiffs.
Banks said the ruling appears to be the first time a judge has overturned an FWS listing decision due to the agency’s failure to adequately consider voluntary conservation plans.
“They really just gave it a lick and a promise and never did the kind of analysis that the policy calls for,” he said, adding that his clients who had joined the rangewide plan felt they’d been “double-crossed.”
“What [FWS] can and should do is take the judge’s opinion seriously,” he said. “There are some important listing decisions coming up, and this is a chance for them to reassess how they implement the policy and make sure in the future it is done thoroughly and in a manner the judge requires.”
Turning ESA ‘on its head’
ESA experts said it is likely FWS is conducting a PECE analysis to support its decision this month on whether to recommend listing the greater sage grouse as threatened or endangered. The agency did not immediately confirm whether it is conducting such an analysis for the Westwide bird.
In the past few years, PECE analyses have supported decisions by FWS to withdraw proposed ESA listings for the dunes sagebrush lizard, a 3-inch reptile whose shinnery oak habitat overlaps with Permian Basin oil lands, and the Coral Pink Sand Dunes tiger beetle in Utah.
In the case of the prairie chicken, environmentalists and some ESA scholars said the court wrongly assumed FWS could accurately predict the future participation in the rangewide plan.
“How can you be certain about something at the same time that you’re guessing?” said Noah Greenwald, endangered species director at the Center for Biological Diversity, which is suing FWS in another district court to get the prairie chicken’s status upgraded to “endangered.”
“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,” he added.
Rohlf of Lewis & Clark Law School said the court’s ruling rests on a faulty premise: that FWS was wrong to conclude that deciding not to list the species would result in fewer businesses and landowners enrolling in the rangewide plan.
FWS’s logic was sound, Rohlf said in an email.
“I find it rather remarkable that a court would question FWS’ determination that landowners and industry would be less likely to voluntarily limit their activities or contribute funding toward species conservation once the threat of a listing was behind them,” Rohlf said. “Most landowners and economic interests are willing to make significant investments precisely aimed at avoiding listings; once that objective is accomplished, their resolve to better protect a species and its habitat (beyond whatever commitments these entities have already made) logically diminishes.”
He said the court was wrong to demand that FWS engage in “mere speculation as to whether good things might happen in the future if a species is not listed.”
The decision will likely have limited impact on listing decisions beyond this case, Rohlf predicted.
Banks of Hogan Lovells disagreed, arguing that PECE is designed to “inherently forecast forward.”
In the chicken decision, FWS forecast the future negative threats to the bird — including drought and climate change — but took only “a static snapshot” of the positive impacts of the rangewide plan, he said.
“Because the judge did such a thorough and thoughtful job in his opinion, there’s a very strong likelihood the circuit would uphold this decision,” he said.
Other cases, legislation
For now, Junell’s opinion has put other pending prairie chicken cases in limbo.
One lawsuit brought by CBD, Defenders of Wildlife and WildEarth Guardians in the district court in Washington, D.C., argues that the bird should have been listed as endangered and that FWS’s issuance of a special rule allowing industry exemptions to ESA was illegal. That case has been moved and consolidated with a case in a district court in Oklahoma, where oil and gas interests are arguing the chicken should not have been listed at all.
Mike Senatore, vice president of conservation law at Defenders, said the environmental plaintiffs are waiting to see whether Junell’s decision takes effect just in West Texas or nationwide. If it applies nationwide and FWS declines to appeal it, the environmental groups’ case might be moot.
“I would be shocked if they don’t appeal it,” Senatore said. “The government has very strong grounds.”
As the case plays out in court, pro-oil lawmakers are also pushing legislation to delist the prairie chicken.
The House’s defense authorization bill, which passed in the spring, would delist the prairie chicken, and the Senate’s bill to fund the Interior Department in fiscal 2016 would also temporarily halt ESA protections.
Proponents say a listing is unnecessary in light of the growth of the rangewide plan — industry partners have now pledged $46 million in mitigation and enrollment fees to conserve or restore millions of acres, WAFWA said — and the fact that prairie chicken numbers grew by about 25 percent over the past year, marking the second consecutive year of significant growth.
“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,” Senate Environment and Public Works Chairman James Inhofe (R-Okla.) said yesterday in a statement. “It is my hope that this ruling, along with language providing a temporary delisting of the LPC in the House-passed National Defense Authorization Act, will enable states to effectively conserve species without all of the burdensome federal regulations that come with a listing under the ESA.”