As many expected, a lawsuit has been filed challenging the Fish and Wildlife Service’s recent listing of the lesser prairie chicken as “threatened” under the Endangered Species Act (“ESA”).  (Read more about the listing here.)

The Permian Basin Petroleum Association, along with four New Mexico counties (Chaves, Roosevelt, Eddy, and Lea), filed suit this week against the Department of the Interior, the U.S. Fish and Wildlife Service, and certain of their employees claiming that the decision to list the lesser prairie chicken as threatened under the ESA violated the Administrative Procedures Act.  The Complaint was  filed in the United States District Court for the Western District of Texas in Midland.  The lawsuit claims that the agencies violated their own policy by failing to properly evaluate the conservation efforts undertaken by public and private groups prior the listing and ignoring scientific data showing that the lesser prairie chicken population has increased over the last decade and their occupied range has nearly tripled in the last 30 years.  Review the Complaint here.

As the Complaint explains, the Secretary of the Interior determines whether a species should be listed “threatened” or “endangered” under the Endangered Species Act based upon 5 factors, one or more of which must be present to list the species.  These factors are:  (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predication; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence.  As part of its analysis, the agency must consider all conservation efforts being made to protect a species, including Candidate Conservation Agreements and Candidate Conservation Agreements with Assurances, to determine the certainty that they will be implemented and the certainty that the efforts will be effective using 15 criteria set forth by the PECE Policy.

The plaintiffs claim that the agencies failed to adequately consider the numerous conservation plans in place, covering millions of acres, in order to protect the lesser prairie chicken.  “Upon information and belief, to date, the Service has not conducted an analysis of the cumulative effect of these conservation efforts or the likely cumulative benefits to be expected from implementation of these efforts in the foreseeable future.”

Specifically, the claims listed in the complaint are as follows:

Claim 1:  Failure to perform “PECE Policy Analysis.”  Plaintiff claim that the agencies failed to develop or publish a PECE policy evaluation to determine the effectiveness of the conservation plans.

Claim 2:   Failure to formulate and explain a rational decision based upon the evidence.  Plaintiffs claim the agencies failed to consider evidence that the population of lesser prairie chickens has increased since 2003 and that their estimated occupied range has nearly tripled since 1980.  Instead, the agencies claim that the species has a reduced population size and faces ongoing habitat loss and degradation.

Claim 3:  Failure to respond to comments.  The plaintiffs each submitted comments on the proposed rule during the public comment period, but claim that the agencies ignored each of their comments.

In light of this, plaintiffs seek the following relief from the court:

(1) A ruling that the defendants violated the Administrative Procedures Act in listing the lesser prairie chicken as threatened under the Endangered Species Act;

(2) A declaration that the defendants actions (listed in claims 1-3) were arbitrary, capricious, an abuse of discretion, and otherwise violate the Administrative Procedures Act; and

(3) A determination that the listing was unlawful and an order setting it aside.

For more information, read a Midland Reporter Telegram article here.