Quack Quack: Is The Prairie-Chicken Problem Back? Update on the Lesser Prairie Chicken Conservation Efforts

October 25, 2016

In September 2015, a Western District of Texas court vacated the United States Fish and Wildlife Service (“USFWS”)’s designation of the lesser prairie chicken (“prairie chicken”) as “threatened” under the Endangered Species Act (“ESA”).[1] The USFWS sought a reversal of this ruling, which the Court denied on February 29, 2016. By late July of this year, the USFWS finalized de-listing of the bird as “threatened”—indicating that the agency will not pursue appeal.[2] This is a huge victory for oil and gas companies operating in the prairie chicken’s habitat range. With the prairie chicken removed from the “threatened list,” the companies’ incidental “taking” of listed animals will lessen under the ESA restriction. However, in order to ensure the prairie chicken does not get re-designated as “threatened” in the future, it is important that project developers in the region continue participating in the voluntary Range-Wide Conservation Plan (“Conservation Plan”).

 

Part of the reason for the court’s initial order to remove the bird’s listing was the USFWS’s failure to thoroughly review the Conservation Plan’s impact and implementation with regards to the prairie chicken in the population.[3] The Conservation Plan, a state-based program, uses market-based incentives to combine conservation efforts with energy production and exploration efforts. This is achieved by requiring project developers to pay fees which are then used to fund private landowners who set aside land for conservation efforts.[4] It is important that developers continue to participate in the Conservation Plan because the U.S. Fish and Wildlife Service stated 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.”[5]

 

Re-evaluation by the USFWS is not the only reason those incentivized to keep the prairie bird off the endangered list should continue contributing to conservation efforts. Oil and gas developers continue to face heightened scrutiny not only from USFWS but also from other environmental groups. In the absence of federal administrative control, the capability of non-governmental conservation efforts will play a larger role. “With no regulatory “stick,” wildlife groups believe industry will stop ponying up before destroying the prairie chicken’s essential habitat.”[6] In fact, environmental groups have filed a petition with the USFWS for emergency protections for the bird.[7]

 

However, the Conservation Plan does seem to be working to increase the population of the prairie chicken, as the court insinuated it might in its initial order. On March 31, 2016 the Western Association of Fish and Wildlife Agencies (“WAFWA”) released its second annual report detailing new developments under the Conservation Plan. According to the report, “the estimated lesser prairie-chicken range-wide population increased by 25 percent . . . .”[8]  Should the prairie chicken population continue to grow under the current conservation scheme, the success of voluntary conservation efforts could serve as a viable alternative to conservation efforts remaining in control of federal agencies. Already, some government officials from the states involved with the Conservation Plan oppose any reenlistment of the bird under the Endangered Species Act.[9]

 

In conclusion, although the lesser prairie chicken is no longer on the ESA’s “threatened” list and the population has reportedly increased under the Conservation Plan, this is not the end of the road for those wanting the prairie chicken to remain off the ESA’s list. It is necessary for oil and gas companies, along with other industries in the bird’s habitat range, to continue payments to the Conservation Plan in order to thwart efforts by environmental groups to re-list the bird as a threatened species under the ESA. If these environmental groups were to succeed, “incidental takings” of the prairie chicken by entities operating in the bird’s habitat would again be restricted—greatly thwarting industrial exploration and production in the area.[10] Continued participation by industry leaders in conservation efforts would exemplify how industry interests and environmental interests can co-exist. If the Conservation Plan continues to result in increased population growth for the prairie chicken, this plan could serve as a model for future efforts to save threatened species while at the same time support industrial development.

 


 

[1] Permian Basin Petroleum Ass’n et al., v. U.S. Dep’t. of Interior, No. 7:14-cv-00050-RAJ (W.D. Tex. Sept. 1, 2015).

[2] U.S. Fish and Wildlife Serv., Endangered and Threatened Wildlife and Plants; Lesser Prairie-Chicken Removed From the List of Endangered and Threatened Wildlife (2016).

[3] Supra note 2.

[4]Thomas A. Campbell et al., Protecting the Lesser Prairie Chicken Under the Endangered Species Act: A Problem and an Opportunity for the Oil and Gas Industry, 45 Tex. Envtl. L. J. 31, 42-43 (2015).

[5] Glen Lammi, Regulators’ Delisting of Lesser Prairie Chicken A Win, And A Test, For Voluntary Conservation, Forbes Mag. (Aug. 1, 2016), http://www.forbes.com/sites/wlf/2016/08/01/regulators-delisting-of-lesser-prairie-chicken-a-win-and-a-test-for-voluntary-conservation/#74afcb357ff0.

[6] Phil Taylor, Prairie chicken ruling tests strength of voluntary conservation, E&E Pub., LLC (Oct. 15, 2015), http://www.eenews.net/stories/1060026377.

[7] Environmental groups rekindle battles over lesser prairie chicken, The Denver Post (Sept. 13, 2016), http://www.denverpost.com/2016/09/13/environmental-groups-battle-over-lesser-prairie-chicken/.

[8]Western Association of Fish & Wildlife Agencies, Lesser Prairie-Chicken Range-Wide Plan Reports on Successful Second Year (2016), http://www.wafwa.org/initiatives/grasslands/lesser_prairie_chicken/news_releases/e_1838/Lesser_Prairie_Chicken_News_Releases/2016/3/Lesser_Prairie-Chicken_Range-wide_Plan_Reports_on_Successful_Second_Year.htm.

[9] Governor to oppose new initiative on prairie chicken, Today’s KFDI FM 101.3 (Sept. 14, 2016), http://www.kfdi.com/news/governor-to-oppose-new-initiative-on-prairie-chicken.

[10] Endangered and Threatened Wildlife and Plants; Special Rule for the Lesser Prairie-Chicken; Final Rule 79 Fed. Reg. 20074 (April 10, 2014) (to be codified at 50 C.F.R. pt. 17).

Laura Shoemaker is a second year law student at The University of Texas School of Law. She graduated Cum Laude from U.C.L.A. in 2014 with a B.A. in Communication Studies. She will be working at the Houston office of Baker Botts and the Century City office of Irell and Manella during the summer of 2016.