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Monday, March 31, 2014

Oklahoma attorney general sues FWS

by Mark Mendiola - WLJ Correspondent

Oklahoma Attorney General Scott Pruitt’s Mar. 17 lawsuit filed in Tulsa against the U.S. Interior Department and U.S. Fish & Wildlife Service (FWS) is getting high marks from the Oklahoma Cattlemen’s Association.

In his suit, Pruitt charges those federal agencies with using “sue and settle” tactics in collusion with environmental groups that exploit litigation in the court system to advance their cause, especially in regard to endangered species.

“Friendly settlements” of lawsuits filed by special interest groups and endorsed by Interior and FWS often impose tougher regulations and shorter deadlines than those imposed by Congress, causing a crippling economic effect, Pruitt says.

Because the settlements are occurring without public input, attorneys general are not able to represent the respective interests of their states, businesses and citizens, he says.

According to the lawsuit, FWS violated the Endangered Species Act by agreeing to a settlement with New Mexico-based WildEarth Guardians that led to a consent decree requiring the agency to determine the listing status of 250 other species by Sept. 30, 2015, essentially sidestepping the rulemaking process.

WildEarth Guardians says the lesser prairie chicken has suffered population declines due to oil, gas and wind energy development. It sued the FWS in 2010, accusing the agency of failing to meet deadlines in determining the listing status of 251 species, including the lesser prairie chicken.

The FWS agreed whether to grant the lesser prairie chicken threatened status by Mar. 31, which would restrict land use in the fowl’s five-state habitat, including Oklahoma, if granted.

The Domestic Energy Producers Alliance of Oklahoma has joined Pruitt in filing the suit. It represents independent oil and natural gas producers and argues the federal government is using the Endangered Species Act to halt oil and natural gas development, devaluing private property rights.

Pruitt noted that Oklahoma, other states and private industry have spent $26 million to develop a voluntary, comprehensive conservation plan to protect the lesser prairie chicken.

“Oklahoma has indicated its willingness to protect the lesser prairie chicken, but it seems increasingly clear this issue isn’t about sound science or saving endangered species. Using the courts to impose regulations undermines the rule of law,” Pruitt said.

A column by two attorneys on the Lexology web site said Pruitt’s lawsuit signals an important escalation in the fight against federal consent settlements of Endangered Species Act cases with non-governmental environmental organizations.

“ESA lawsuits have become a key tool to prevent or delay project development activities, including in the oil and gas industry,” they wrote, noting the largest settlement resulted in FWS agreeing to examine 455 different species over five years.

Pruitt’s lawsuit is the first time a state has taken legal action to break the FWS “sue and settle” cycle, the lawyers said. It puts the impact on state economies and autonomy on the table as a new issue. It also is a well-timed complement to Texas’ recent efforts to confront the ESA listing issue from a scientific perspective by appropriating $5 million to research three species that could be listed as endangered.

Active legislation is pending in Congress to modify “sue and settle” practices, passing the House and under consideration in a Senate subcommittee.

“Whether or not Oklahoma eventually wins its lawsuit, simply bringing it has underscored the importance of deciding whether regulation by lawsuit is a legitimate way to implement the ESA,” the attorneys said.

Michael Kelsey, Executive Vice President of the Oklahoma Cattlemen’s Association, said normally he does not like lawsuits, especially those that advance agendas, but he praised Pruitt for challenging the “sue and settle” agreements between federal agencies and activists.

“There’s a time and a place,” Kelsey told Western Livestock Journal. “Dire circumstances require dire actions.”

Often lawsuits filed by extreme activist groups are not settled based on sound science or environmental principles, he said.

The rural community has responded very positively to protecting endangered species, going above and beyond, Kelsey said, saying the Endangered Species Act destroys private property rights. “We can do things far better than the federal government. … It’s a long row to hoe here, but it puts a stake in the ground and says we’ve had enough.”

Despite a prolonged drought, especially in Oklahoma’s west and northwest where it has persisted for five years, ranchers remain extremely optimistic, Kelsey said, noting cattle prices and market conditions are fantastic.

“It’s a great industry. We feed the world. I believe that. We market a great protein product,” he said. — Mark Mendiola, WLJ Correspondent

 
 


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