A federal judge vacated the Biden-era rule that listed the lesser prairie chicken as endangered under the Endangered Species Act (ESA)—for a second time.
Judge David Counts of the U.S. District Court for the western district of Texas wrote in an Aug. 12 order that the U.S. Fish and Wildlife Service (USFWS) committed a “foundational error” when it listed the species as endangered in 2022.
The ruling removes the rule’s federal restrictions on livestock grazing, energy pipeline development, oil drilling, wind farms and road construction, effective immediately.
“We told the Biden administration its rule was outrageous and illegal federal overreach,” said Oklahoma Attorney General Genter Drummond. “This court decision affirms we were right. Oklahoma’s cattle grazing, energy production and rural economy are no longer under siege by this unlawful regulation.”
Oklahoma joined Kansas and Texas in a lawsuit in 2023 against the Biden administration’s 2022 listing of the species. In April this year, Counts vacated the final listing rule in a similar lawsuit filed by the Kansas Natural Resource Coalition and several industry groups.
The USFWS will go back to the drawing board and revisit the lesser prairie chicken’s status under federal law.
Ruling and background
Whether the lesser prairie chicken belongs on the ESA has been under consideration for more than a decade. In 2014, USFWS first listed the species as threatened. The rule was immediately challenged by multiple groups, including the states in the most recent challenge. The court ultimately vacated the rule in 2015.
In 2016, USFWS received another petition to list the lesser prairie chicken as endangered throughout its range, or in three distinct population segments (DPS). The agency published a 12-month finding and proposed rule in 2021, which determined two DPSs were appropriate. In 2022, it was finalized that the Northern DPS was classified as threatened and the Southern DPS as endangered.
In March 2023, Oklahoma, Texas and Kansas filed suit against the final rule, and industry groups filed suit shortly after. Industry groups included oil and gas groups, and livestock and cattle associations. The plaintiffs alleged that USFWS improperly applied its policy for determining DPSs in violation of the ESA and Administrative Procedures Act.
Earlier this year, following a change in administration, USFWS reevaluated the plaintiffs’ claims and determined the agency erred in applying the DPS policy. USFWS found that it did not provide a sufficient justification that the two population segments of the species are significant enough for a DPS.
“Because the confessed error in the DPS analysis affects the assessment of extinction risk, Fish and Wildlife believes this error warrants immediate vacatur of the listing decision,” the order read.
The government called for the voluntary vacatur and remand of the 2022 rule. Several environmental groups, including the Center for Biological Diversity, intervened to defend the final listing rule. Counts denied their motion.
“No real novel thinking is required to resolve this presumably unusual species of voluntary remand involving a concession of foundational error,” Counts wrote. “The task before Fish and Wildlife is to go back and determine the listable entity for purposes of the listing determination,” he continued.
USFWS expects to complete a new finding by Nov. 30, 2026, on the 2016 listing petition that led to the final listing rule.
“From the beginning, we have maintained that the 2022 listing was legally flawed, scientifically unsupported, and unnecessarily harmful to the communities, landowners, and industries that have long been committed to voluntary conservation efforts for the lesser prairie-chicken,” said Permian Basin Petroleum Association President Ben Shepperd in a statement. The group was one of the plaintiffs associated with the case.
“This ruling reaffirms what we’ve said all along: collaboration and on-the-ground conservation are the only things that have been proven to work,” Shepperd added.
Sixteen voluntary conservation programs remain in place to conserve the lesser prairie chicken. — Anna Miller Fortozo, WLJ managing editor
