On August 12th, a federal judge in Texas has, for a second time, vacated a Biden administration rule that listed the lesser prairie chicken as endangered and remanded the rule back to the U.S. Fish and Wildlife Service (FWS).
U.S. District Judge David Counts in the U.S. District Court for Western Texas, vacated the rule in a lawsuit filed by multiple plaintiffs in the oil and gas and agricultural industries, including the Kansas Natural Resource Coalition. The Pacific Legal Foundation represented the plaintiffs.
The Court granted the FWS’s voluntary motion to vacate the listing decision and for remand, sending it back to the FWS for further analysis. The Court further denied the requests from environmental litigation groups to intervene in the case stating their motions were untimely and didn’t meet the necessary burden to participate in the case.
The FWS told the court it plans to undertake a new rulemaking on the lesser prairie chicken and that decision is why Judge Counts’ ruling said Fish and Wildlife committed “serious error at the very foundation of its rule. Mere remand would not cure this error. Fish and wildlife therefore commits no handwaving when it also concedes that this failure causes the final listing rule to be ‘unlawful’ and therefore ‘not in accordance to law.'”
An interesting point made by the judge stated that 16 conservation programs have been established by private entities, mainly oil and gas industry producers, prior to 2022, with a $40 million mitigation bank to support the survival of the lesser prairie chicken.
The Judge said: “Without the bird’s listing, so it goes, ‘there will be little or no demand for conservation credits.’”
Congressman Tracey Mann (KS-01) issued this statement about the ruling and how it affects Kansas landowners.
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