On July 20, 2016, ten months after a U.S. District Court for the Western District of Texas judge ruled that federal regulators erred in finding the lesser prairie chicken “threatened” under the Endangered Species Act (ESA), the US Fish & Wildlife Service (FWS) finalized its delisting decision. The decision not only validates the work of a public-private bird-conservation partnership, it will also test the viability of such state-based efforts.
The species-protection battle over the lesser prairie chicken has raged for over 20 years. As part of a “sue-and-settle” arrangement with environmental activists, FWS listed the bird as threatened in April 2014. Preferring a higher designation, the same activist groups with which FWS settled sued the agency again later that year, arguing that the bird belonged on the endangered list. A petroleum industry association and four New Mexico counties sued FWS as well, arguing that the agency failed to take into consideration voluntary conservation efforts in the affected states—Colorado, Kansas, New Mexico, Oklahoma, and Texas. Wildlife regulators and private enterprises in those states, concerned with the severe economic impact of an ESA listing for the chicken, created a voluntary Lesser Prairie Chicken Initiative.
The September 1, 2015 Permian Basin Petroleum Association v. Department of the Interior decision agreed with the states that under the ESA, FWS failed to fully “tak[e] into account those efforts, if any, being made by any State … to protect such species.” 16 U.S.C. § 1533(b)(1)(A). A September 15, 2015 WLF Legal Pulse post by Featured Expert Contributor Sam Boxerman of Sidley Austin LLP provides a full analysis of that decision. On February 29, 2016, the Texas federal court denied FWS’s request for reconsideration of its September ruling.
Though it has achieved a complete legal victory, the petroleum association and the other businesses, landowners, and developers that have partnered with the states on the Lesser Prairie Chicken Initiative Council have many challenges ahead of them. When announcing that it had finalized the chicken’s delisting, FWS stressed that it would be “undertaking a thorough re-evaluation of the bird’s status and the threats it faces using the best available scientific information to determine anew whether listing under the ESA is warranted.” FWS’s statement, and its silence on the private-public conservation effort, is not surprising, especially considering that the agency had endorsed the Council’s rangewide conservation plan in October 2013, but then reversed course and imposed the “threatened” designation just seven months later.
Environmental activist groups instinctively oppose voluntary conservation, and organizations such as Defenders of Wildlife—which brought the original listing suit against FWS—will fight vigorously to restore federal control over the lesser prairie chicken. After the federal court’s September 1 decision, a Defenders of Wildlife senior official remarked, “People who had previously been prepared to abide by the rules under a listing are now heading towards the bulldozers again.”
The states and their private-sector partners will need to consistently demonstrate that their commitment to preserving the lesser prairie chicken has not wavered after their court win. They will have to demonstrate the type of positive results detailed in a March 31, 2016 report to FWS on the conservation plan’s second year. The plan has led to a “25 percent increase in the lesser prairie chicken population … industry partners committed nearly $51 million in fees to pay for mitigation actions, and landowners across the range agreed to conserve more than 67,000 acres of habitat.” On June 13, 2016, an umbrella group of western-state wildlife agencies announced the purchase of 30,000 acres of lesser prairie chicken habitat in Kansas.
WLF is a staunch advocate for voluntary efforts like the Lesser Prairie Chicken Initiative, as we’ve written in other contexts. All those involved in a self-regulatory mechanism have a shared stake in its success, and the voluntary nature of the program allows them to quickly adapt their efforts. Such incentives and flexibility do not exist in a one-size-fits-all government regulation.
We urge FWS and litigious activists to give state wildlife regulators a fair chance to balance species protection and economic activity. Any knee-jerk rush to regulate or sue would not benefit the environment; rather, it would make us question whether federal regulators and their “public interest” allies care more about government control than actual species protection.
Also published by Forbes.com on WLF’s contributor page.