Corbin Hiar, E&E reporter
Published: Thursday, May 12, 2016
The Obama administration this week gave up its legal push to reinstate protections for the lesser prairie chicken, a move that was celebrated by conservative lawmakers and lamented by environmentalists.
The Department of Justice filed a motion Tuesday with the 5th U.S. Circuit Court of Appeals to dismiss the administration’s challenge of a ruling by the U.S. District Court for the Western District of Texas.
Judge Robert Junell’s decision last year overturned a regulation issued in spring 2014 by the Fish and Wildlife Service that added the imperiled member of the grouse family to the threatened species list in Texas, New Mexico, Oklahoma, Kansas and Colorado. The case against the listing was brought by the Texas Permian Basin Petroleum Association and three oil-rich New Mexico counties.
Junell concluded 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 energy development, livestock grazing, tree encroachment and conversion of rangeland to crops (Greenwire, Sept. 3, 2015).
Earlier this year, Junell also refused to amend his ruling. The Obama administration had asked him to send the listing decision back to FWS so the agency could make a new determination taking the rangewide plan fully into account or, at the very least, to limit his ruling to Texas and New Mexico, the states from which the plaintiffs who challenged the listing hailed (E&ENews PM, Feb. 29).
At the time of the prairie chicken listing, the bird’s native grassland and prairie habitat had shrunk by 84 percent. Since then, the Western Association of Fish and Wildlife Agencies, which is implementing the rangewide plan, has struggled to offset the impacts of development on the species (Greenwire, April 1).
FWS now “intends to reassess the status of the species based on the court’s ruling and the best available scientific data,” agency spokesman Brian Hires said in an email. “The Service will continue working with states, other federal agencies and partners on efforts to conserve the lesser prairie chicken across its range.”
Republican members of Congress celebrated the conclusion of the case and vowed to continue battling any further attempts by FWS to protect the bird under the Endangered Species Act.
“The Obama administration’s decision not to appeal a district court ruling, throwing out the listing of the lesser prairie-chicken as a threatened species, is welcome and different news from this administration,” Oklahoma Sen. Jim Inhofe, chairman of the Environment and Public Works Committee, said in a statement. “However, even with this win, I will be looking to put safeguards in place to block the U.S. Fish and Wildlife Service from revisiting the issue until the states’ plan has time to develop and show its success.”
Other Republicans hoped the administration’s change of heart would extend to its management of other imperiled species.
“This is a huge win for New Mexico,” said Rep. Steve Pearce, who has represented the southern half of the Land of Enchantment for 11 years. “While I am happy with the administration’s decision today, it is disappointing the administration took this long to realize how successful private landowners and states are at managing the species. I hope in the future they take local conservation efforts into meaningful consideration prior to any listing decision.”
Conservationists, many of whom have long been critical of the rangewide plan, argued that the administration should take a different lesson from the case.
“It doesn’t matter how much you compromise or appease corporate interests and states, they’ll sue anyway,” said Erik Molvar, a wildlife biologist with WildEarth Guardians, a group that has a similarly litigious relationship with FWS. “So you might as well stop playing politics and do your job competently, based on the science, the way the law intended.”
Meanwhile, the Center for Biological Diversity is considering a lawsuit to force a speedy review of the prairie chicken’s status under the law — even though it fears that may not be enough to save the bird from extinction.
“We are evaluating our options, but nothing is going to get this bird the protections it needs in a timely manner, unless the service is proactive about relisting it,” said Brett Hartl, CBD’s endangered species policy director. “We are extremely pessimistic on that prospect.”