The Obama administration told a federal judge last week that overturning Endangered Species Act protections for the lesser prairie chicken could put the bird on a one-way road to extinction.
U.S. District Court Judge Robert Junell for the Western District of Texas handed the administration a surprising defeat last year when he overturned the Fish and Wildlife Service’s spring 2014 decision to add the lesser prairie chicken to the list of threatened species in Texas, New Mexico, Oklahoma, Kansas and Colorado.
The bird’s native grassland and prairie habitat had shrunk by 84 percent because of drilling, wind farms, road building, grazing and plowing. But the Permian Basin Petroleum Association and four southeast New Mexico counties that are flush with oil successfully fought the listing.
Junell ruled that FWS had failed to consider the extent to which a rangewide conservation plan crafted and administered by the Western Association of Fish and Wildlife Agencies, and supported by energy companies and landowners, would ameliorate those threats (Greenwire, Sept. 3, 2015).
Federal attorneys are now asking Junell to amend his ruling. Instead of scrapping it altogether, they want him to send it back to FWS so the agency can make a new listing determination taking WAFWA’s plan fully into account.
But if the bird doesn’t receive any federal protections, the administration argues that energy companies and farmers will continue to destroy the chicken’s vanishing habitat with impunity.
"The loss and fragmentation of even relatively small amounts of existing and suitable habitat can easily put the species on a path towards a ‘death spiral’ from which it cannot recover, as the Service has seen for similar prairie grouse species such as the now-extinct heath hen and endangered Attwater’s prairie-chicken," Department of Justice attorneys wrote in a Jan. 27 filing.
The U.S. attorneys emphasized that "the main threat to the species is habitat fragmentation, and the lesser prairie-chicken’s habitat is highly fragmented, with a Service analysis finding only 20 habitat patches remaining range-wide of the size necessary to support the species over the long-term."
During the course of the litigation, DOJ said, development interests are threatening the remaining patches of 21,000 acres or more. In addition to existing developments that FWS has previously addressed to the court, there are "several additional prospective wind projects in Oklahoma and Kansas that would occur in currently suitable habitat for the species," wrote the administration.
These and other projects can go ahead without any legal requirement to consult with FWS about ways to minimize impacts to the prairie chicken, DOJ argued.
"In Oklahoma alone, there are at least seven pending highway improvement projects with federal involvement in suitable lesser prairie chicken habitat where the vacatur will prevent the Service from requiring appropriate mitigation measures as part of an [Endangered Species Act] consultation," the filing said.
"In addition, given that potential developers have no legal requirement to communicate with the Service in the absence of listing, there is every reason to believe that projects other than those known to the Service are proceeding without sufficient protections for the species."
Industry defends, Ashe critiques WAFWA plan
In a filing made the same day, lawyers representing the Permian Basin Petroleum Association countered the administration by claiming that "WAFWA has achieved notable progress in implementing" the rangewide plan.
They also downplayed the extent of habitat that is currently slated for development.
"WAFWA estimated that these five wind energy projects would impact only about 0.1 percent of the estimated range of the [lesser prairie chicken, or LPC], and it concluded that even impacts 100 times greater than that would not likely have a ‘demonstrable impact on the probability that the LPC would be placed in danger of extinction,’" the oil industry attorneys said, citing testimony provided by the state wildlife regulators.
While they acknowledged that habitat is important to the survival of the bird, the oil group and its partners argued that "few factors have greater influence on the condition of LPC habitat than moisture. Drought causes the population to contract, while periods of normal or above-normal precipitation cause the population to expand, as it has done in recent years."
Permian Basin Petroleum Association lawyers criticized the agency for suggesting that a threatened listing was still necessary for the bird, which has seen its population increase for two consecutive years (Greenwire, June 26, 2015).
"This Court has instructed them to evaluate the [rangewide plan] and other conservation efforts in a forward-looking manner by making informed predictions about the likely future success of those efforts," industry lawyers said of DOJ’s case. "Their argument that the Service’s action could simply be reissued on remand betrays either a misunderstanding of, or a refusal to recognize, that this Court has decided a fundamentally different kind of analysis is required."
FWS Director Dan Ashe, however, recently cast doubt on its ability to clearly analyze the impact of the rangewide plan.
Because WAFWA has still not created a database to track affected land and corresponding mitigation efforts, "the Service is unable to determine that the [rangewide plan] is offsetting the impacts to lesser prairie-chickens," Ashe said in a Dec. 22 letter to a top WAFWA official about an annual report it sent FWS last year (Greenwire, April 7, 2015).
"We consider this a crucial deficiency and we must redouble effort to get a successful conclusion," Ashe said of the nonexistent database.
He also criticized WAFWA’s annual report for containing "limited financial information" about which companies have paid to offset which actions that harm chickens.
Ashe offered detailed instructions for how the state regulators should summarize the rangewide plan’s finances so that FWS can determine whether its conservation goals are "financially achievable," he said in the letter, which was provided to Greenwire on condition of anonymity by a source who is closely following the court case.
A new ruling from Junell could come any day now. Meanwhile, WAFWA’s second annual report on the effectiveness of the rangewide plan is set to be released in a couple of months.