In September, the United States District Court for the Western District of Texas has found that the US Fish and Wildlife Service (“USFWS”) acted improperly in finding the lesser prairie chicken met the requirements to be listed as threatened under the Endangered Species Act.  The court, therefore, vacated the bird’s listing under the Act.  [Read full opinion here.]

Endangered Species Act Background

The Endangered Species Act (“ESA”) seeks to offer legal protection to species facing extinction by prohibiting a “take” of animals subject to the Act’s protection.  “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such
conduct.”  Under the ESA, animals are listed as either being “endangered,” defined as being in “danger of extinction throughout all or a significant portion of its range” or as “threatened,” defined as likely to become endangered in the foreseeable future.

The decision whether and how to list a species is made by the US Fish and Wildlife Service.  In reaching this decision, the USFWS looks at a number of factors.  Specifically, the USFWS is required to consider voluntary conservation plans and their effectiveness in determining the need to list a species.

For a more in depth background on the Endangered Species Act, click here to review a fact sheet I previously prepared on this topic.

The Lesser Prairie Chicken

The lesser prairie chicken is a species of grouse found in a five-state region of the United States:  Texas, New Mexico, Kansas, Oklahoma, and Colorado.  In April 2014, the US Fish and Wildlife Service (“USFWS”) published a final rule including the lesser prairie chicken as “threatened” under the ESA.

The Lawsuit

The Permian Basin Petroleum Association, along with four New Mexico counties, filed suit against the USFWS challenging its listing decision.  The lawsuit made three claims:  (1) the USFWS failed to properly take voluntary conservation plans into consideration; (2) the USFWS decision was not rational and based on the best available scientific evidence; and (3) the USFWS did not adequately consider significant and relevant comments raised during the public comment period.

Both parties filed competing motions for summary judgment.  The court ruled on the motions on September 1, 2015.  The judge found in favor of the challengers on the first claim and in favor of the USFWS on claims two and three.

The Court’s Opinion

The primary argument made by the challengers is that the USFWS failed to consider the impact of a voluntary conservation effort to preserve lesser prairie chicken habitat, called the range wide plan.  The range wide plan is a voluntary plan by which landowners voluntarily enter into agreements with USFWS to enhance and protect lesser prairie chicken habitat.  If a take does occur while carrying out the agreed upon conservation efforts, the landowner is not liable under the ESA.

In discussing the USFWS evaluation of the impact of conservation plans, the court noted that the USFWS gave only cursory consideration to the overall impact of these plans. And failed to rigorously consider all 15 factors required by rule in issuing a listing decision.  Specifically, the court found the that USFWS’ improper analysis included the unsupported idea that if the bird was not listed, the incentive to enter into conservation plans would no longer exist, failure to consider enrollment numbers in the program prior to making the final listing decision, believing that the existence of a flexible timeframe for the plan rather than a formal implementation schedule was inadequate, the fact that USFWS believed the plan would benefit the number of lesser prairie chickens in existence, and the false belief that the plan lacked objective measures to ensure goals are achieved.

Thus, because the court found that USFWS did not follow their own rule in evaluating the conservation plans, it ordered the agency’s final rule be vacated.  Thus, the listing of the lesser prairie chicken has, at least for now, been vacated and the bird is not subject to ESA protections.

Currently, the USFWS has a pending motion to amend the court’s ruling, which will be heard nextweek.  The USFWS seeks a different remedy–rather than vacating the listing, they ask the court to remand the decision back to USFWS because there is a “serious possibility” that upon conducting the proper analysis, the USFWS would have be able to “substantiate its decision” to list the bird.  USFWS worries that vacating the listing, rather than remanding, will put the species in danger.  Alternatively, the USFWS argues that if the court will not remand the case, it should limit the vacating of the listing to only the Permian Basin and the four counties who are plaintiffs in the case.

If the court upholds its ruling to vacate the listing, it seems highly likely that the USFWS will appeal this decision.

Why Should We Care?

First, for landowners in the five-state area where the lesser prairie chicken is found, this decision is welcome news.  Landowners, including agricultural operators, and the oil and gas industry were extremely concerned about their ability to continue operating in the bird’s range after it was listed under the Act.  At least for now, such landowners will not be liable for a “take” if they harm the bird or its habitat.

Second, on a broader scale, this case offers hope that courts will carefully evaluate whether animals should be listed under the Act and take into account whether USFWS adequately considered voluntary conservation plans in making their listing decision.  These voluntary plans are an attempt by landowners to work with the government to protect the species at issue and avoid the need for listing under the ESA.  This case shows that at least this court will ensure the USFWS carefully considers the impact of these voluntary programs when making listing decisions.

Finally, over the last several years, it has seemed that the listing of animals under the ESA was almost unlimited.  Seeing that there are strict requirements for how listing decisions are made and that the court will require the USFWS to comply with those requirements is good news for landowners.