Lesser Prairie Chicken Removed from ESA List
As word spreads on how a Federal District Court in Midland, Texas has vacated the US Fish and Wildlife Service’s (Service) decision to list the Lesser prairie chicken (LPC) as threatened, we thought we would share a bit of the back story on how this decision came about.
Eight New Mexico Counties came together in 2013 and held a joint coordination meeting with the Service to discuss local conservation measures and the lack of science supporting a listing decision. While other entities had requested coordination, the NM counties were the only local governments successful in having the government-to-government meeting with the Service.
Ultimately, the Service decided to list the species as threatened primarily because recent surveys, taken during a severe drought, showed a significant drop in population. In this case, coordination was helpful in building a record, but ultimately did not convince the Service to forgo listing the species.
Even prior to the coordination effort, the five states with LPC habitat (Texas, New Mexico, Kansas, Oklahoma and Colorado) had come together and developed a conservation plan that promised to preserve the LPC so that listing would not be necessary. The Service approved the plan and numerous oil and gas companies signed up under the agreement funding the plan, all before the Service made its final determination. However, even this unprecedented conservation effort was not enough to stop the environmental agenda to list the LPC at all cost.
A day after the Service issued its threatened rule, the Center for Biological Diversity (an extreme environmental organization) filed a 60 day notice of intent to sue claiming the Service should have listed the species as “endangered.”
With the legal clock ticking, the Permian Basin Petroleum Association (PBPA) initiated a strategy that would lead to the vacated decision. First, they prepared an action under the Administrative Procedures Act, which allowed them to file the case without having to issue a 60 day notice, as the environmentalists had done. Second, they selected the Federal District Court in Midland, Texas as the proper venue, instead of Washington D.C. or Oklahoma where other cases were eventually filed. Third, they kept the case simple and did not tie in any of the issues that would cause it to be joined with one of the other actions.
The eight New Mexico counties that coordinated with the Service were invited to join in on the case, and four of these, Chaves, Roosevelt, Lea and Eddy, did so.
The case was filed a day before the environmentalists 60 day clock ran out and when the environmentalists did file their case and argued that the Midland action should be moved to Washington D.C to be heard, Federal District Judge, Robert Junell, disagreed. He retained control of the case and at the first of this month found that the Service had acted arbitrary and capricious when considering the five state conservation plan, and therefore, vacated the listing.
The Service’s next move will be interesting. The ruling to vacate the listing could cause the courts in the other LPC cases to decide the issues they are hearing are now moot. The Service could appeal, but will have to weigh the risks of spending more scarce resources on this issue. There is a slim chance the Service could argue that the decision should be limited to the Western District of Texas and the NM counties that participated in the case. The Service could also consider going back through the re-listing process, but with the latest surveys showing populations up 25%, they have a harder case to make.
Regardless, a big pat on the back needs to go out to the PBPA and four NM Counties that successfully did an end run on the environmental agenda to list a species as endangered, where the science demonstrates it is not warranted.
