Several cattle groups, the states of Texas, Kansas and Oklahoma, and an oil industry group are suing the federal government over listing the lesser prairie-chicken (LPC), claiming the feds failed to consider current conservation measures and the impact on ranchers and the oil industry.
Both suits are challenging the decision by the U.S. Fish and Wildlife Service (USFWS) to list two distinct population segments (DPS) of the LPC under the Endangered Species Act (ESA). In November, USFWS listed the southern DPS as endangered and the northern DPS as threatened with a 4(d) rule that tailors protections for the bird. The 4(d) rule would allow for agricultural practices and grazing to continue, provided a “prescribed grazing plan developed by a qualified party” is approved by USFWS.
Background
The LPC was initially listed as threatened under the ESA in 2014, but the Permian Basin Petroleum Association challenged the listing. The listing was vacated in 2015, with the court citing USFWS violated its policies as it failed to consider conservation efforts already underway. In 2016, environmental groups petitioned to have the LPC divided into several distinct population segments and listed as endangered. In 2019, the environmental groups sued to list the bird under the ESA, citing USFWS’ inaction, and USFWS agreed to make a new determination of the LPC’s status by May 2021.
Industry suits
The suit by the Permian Basin Petroleum Association, National Cattlemen’s Beef Association and the cattle associations of Kansas, New Mexico, Oklahoma and Texas contends[1] USFWS not only failed to consider existing conservation efforts, but arbitrarily divided the LPC into two distinct population segments in violation of its policy on evaluating population segments. The suit contends USFWS did not provide a reason when it changed the buffer from 200 to 300 meters in the final rule in November for oil and gas operations.
Additionally, the suit states the ESA’s 4(d) rule does not allow[2] USFWS to delegate authority to third parties for enforcement.
“Because of the Service’s listing decision, Plaintiffs and their members have incurred and will continue to incur expenses necessary to avoid actions now prohibited by the ESA,” the suit states[3] .
Ben Shepperd, president of the Permian Basin Petroleum Association, told the San Antonio Express-News the listing and the additional buffer requirements would add time and uncertainty to the permitting requirements.
“We think significant portions of oil and gas could be shuddered or negatively impacted, dramatically impacted, in such a way that it would disrupt the state of Texas’ economy, and frankly our national security and our energy security,” Shepherd said.
The second suit by the states of Kansas, Oklahoma and Texas raises similar issues regarding dividing the bird into two segments and the activities that can occur within the LPC’s range. The suit states the 4(d) rule is vague [4] and contains “a more serious defect” of allowing a third party “power to write and implement grazing management plans without federal or state oversight.” The suit continues the listing of the LPC puts in jeopardy conservation efforts by the states and private landowners and that “to achieve conservation while enabling economic development is crucial to the success of lesser prairie-chicken conservation.”
Texas Attorney General Ken Paxton initially filed the suit but was later joined by Kansas and Oklahoma earlier this month. At the time of filing, Paxton said the Biden administration’s policy reduced states’ autonomy and harmed Texans’ property rights.
“The lesser prairie-chicken’s change in classification puts many of Texas’ conservation efforts at risk, all while bringing immeasurable harm to Texans’ property rights,” Paxton said in a statement. “My lawsuit aims to preserve both individual and states’ rights that are threatened by this rule and stop this Biden administration policy in its tracks.”
Kansas Attorney General Kris Kobach and Oklahoma Attorney General Gentner Drummond acknowledged the federal government’s overreach and the listing’s impact on agriculture and the oil and gas industry.
Oklahoma Farm Bureau President Rodd Moesel thanked Drummond for joining the suit, saying that farmers and ranchers are stewards of the land.
“Tying agricultural producers’ hands by restricting which land-management practices they can use unnecessarily restricts our members’ generations-deep boots-on-the-ground experience as caretakers of the land,” Moesel said.
Both suits question USFWS’ estimates of habitat and population loss as USFWS acknowledged population data was unreliable in previous decades and wasn’t accurate until aerial surveys were conducted recently.
The suits are asking the U.S. District Court for the Western District of Texas to vacate the rule. — Charles Wallace, WLJ editor
