For the first time a federal court has struck down the U.S. Fish and Wildlife Service’s overburdensome ‘4(d)’ rule under the Endangered Species Act for the lesser prairie-chicken.
The ruling affirms that federal agencies must consider local economic impacts and respect the limits of their authority when regulating land use.
In July of 2023, a group of agricultural producers and the Kansas Natural Resources Coalition (KNRC) filed a suit against the U.S. Fish and Wildlife Service to block protective regulations under the Endangered Species Act for the lesser prairie-chicken that restricted land use over millions of acres.
“The USFWS split the lesser prairie chicken into two Distinct Population Segments (DPS) and the Northern DPS, which this case was about, was designated as threatened.” The lawsuit challenged the application of the 4(d) rule to the Northern Distinct Population Segment of the Lesser Prairie-Chicken. The court rejected all arguments presented by the government and agreed with KNRC that the U.S. Fish and Wildlife Service failed to consider the economic impact on private entities as required by the Regulatory Flexibility Act.
The Plaintiffs were represented by Charles Yates with the Pacific Legal Foundation (PLF), who said “The Endangered Species Act requires the government to balance conservation efforts with the economic impacts of regulations.”
PLF’s website stated that the District court ruled the U.S. Fish & Wildlife Service must consider economic impact when issuing extra protections for threatened species. Therefore, the lesser prairie-chicken rule is unlawful.
This rule covered lesser prairie-chickens found in Texas, Oklahoma, and Colorado, as well as Kansas—and jeopardized essential local government services, including the building and maintenance of roads, utility poles, and emergency radio towers.
The rule required Landowners to make costly changes to their land use to comply, which could have destroyed their livelihoods.
The principle of the 4(d) Rule set forth by Congress requires the FWS to balance conservation efforts with the economic impacts of regulation on private parties. Finalizing the lesser prairie-chicken rule with complete disregard for its economic costs violated the ESA and the Administrative Procedure Act. Additionally, the agency’s failure to analyze the rule’s impact on small businesses violated the Regulatory Flexibility Act.
Tracy Barton, Executive Director for KNRC stated: “The significance of this case is that it marks the first time the Regulatory Flexibility Act and accompanying analysis have been successfully applied to the Endangered Species Act in court.”
“The key point I emphasize is this: for the federal government to properly assess economic impacts, they must engage with county governments to obtain the necessary data—in other words, coordination is required.”
FWS did not conduct this analysis and therefore the 4(d) rule for the lesser prairie-chicken is illegal. This is the first time a court has ruled the government must comply with the Endangered Species Act’s requirement to prepare a cost-benefit analysis for extra protections of threatened species.
A 4(d) rule is one of many tools in the ESA for protecting threatened species. These rules get their name from section 4(d) of the ESA, which directs the Secretary of the Interior to issue protective regulations deemed “necessary and advisable to provide for the conservation of” threatened species.
