*This article is not a substitute for the advice of an attorney.*
(Sorry for the interruption in our Eminent Domain in Texas series, but this was important news that we needed to cover. We will return to our Eminent Domain in Texas series with the final post next week.)
Last week, the United States Fish and Wildlife Service announced that it would list the lesser prairie chicken as “threatened” pursuant to the federal Endangered Species Act. This listing–a step below a listing of endangered–will afford protection to the animal, but will allow more flexibility in how the animals will be protected than a listing of endangered.
The listing will allow state government officials and private landowners to manage conservation efforts, including several approved conservation plans. One such multi-state plan, developed by the Western Association of Fish and Wildlife Agencies and approved by the United States Fish and Wildlife Service, establishes that conservation practices carried out during usual agricultural and energy development are not subject to further regulation under the Endangered Species Act. Essentially, if landowners or companies are enrolled in the plan, they will not be subject to additional regulations so long as they comply with the plan requirements. As of March 21, 2014, nearly 4 million acres of land had been voluntarily enrolled in the WAFWA plan. [Read prior blog on this plan here.] There are additional similar plans that offer similar exemptions.
The lesser prairie chicken is found in 5 states: Texas, New Mexico, Oklahoma, Colorado and Kansas. In 2013, there were reportedly 18,000 lesser prairie chickens, which is 50% fewer than in 2012. Officials say that this is due in part to human activity carried on in their usual habitat including oil and gas production, wind energy production, and farming and ranching, as well as the ongoing drought across the region.
Numerous groups, including state governments, landowners, and energy companies have expressed dissatisfaction with this listing and it is possible that litigation may result to challenge the decision. These groups point to the severe economic impact that this listing could have on energy production in their states. West Texas lawmakers have spoken out on the listing here.