Court Overturns Listing of Lesser Prairie Chicken

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By Alan Kovski

Sept. 2 — The listing of the lesser prairie chicken as a threatened species has been vacated by a federal court that ruled the U.S. Fish and Wildlife Service failed to give due consideration to conservation efforts when the service made the listing decision.

The bird, a kind of grouse, is found in five states and is common among the oil- and gas-producing regions of Texas, New Mexico and Oklahoma. It was listed as threatened under the Endangered Species Act in 2014.

The listing was overturned Sept. 1 by the U.S. District Court for the Western District of Texas in a victory for the Permian Basin Petroleum Association and four New Mexico counties. The listing had frustrated oil and gas companies, state and local governments and landowners who had hoped their conservation efforts, including a range-wide plan, would head off the listing.

Ben Shepperd, president of lead plaintiff Permian Basin Petroleum Association, issued a statement Sept. 2 welcoming the ruling as a vindication of conservation steps taken by his association's companies and others. The conservation measures “began long before this listing decision was made and will continue unabated now that the court has thrown it out,” he said.

A Fish and Wildlife Service spokesman said, “We are very disappointed in the judge's decision and are now considering options in conjunction with our legal counsel.”

Court Says Agency Violated Own Policy

The federal district court found that the Fish and Wildlife Service had failed to follow its own policy on evaluating conservation programs to determine the status of a species for a listing decision.

That failure was arbitrary and capricious and consequently a violation of law, the court said, explaining that judicial review of agency action under the Endangered Species Act is governed by the arbitrary and capricious standard of the Administrative Procedure Act.

The Fish and Wildlife Service issued a policy in 2003 to govern the evaluation of conservation programs for listing decisions (68 Fed. Reg. 15,000). The court said it owed the agency no deference in interpretation of the policy because the policy was unambiguous, allowing a court to make an assessment of whether the agency did its job properly.

The court found the Fish and Wildlife Service failed to follow the policy when the agency based its analysis of the range-wide conservation plan on an assumption that industry wouldn't be motivated to enroll absent a listing of the lesser prairie chicken as threatened.

Conclusion Called Arbitrary, Capricious

“This conclusory assumption was arbitrary and capricious as no substantive basis was provided, legitimate or otherwise,” the court said.

The assumption also prevented any meaningful analysis of whether the conservation effort would be implemented, the court said.

An environmental advocacy group, the Center for Biological Diversity, lamented the ruling in a Sept. 2 statement questioning the oil and gas industry's commitment to conservation.

“This decision turns the Endangered Species Act on its head by concluding the Fish and Wildlife Service should have given the benefit of the doubt to the oil and gas industry, rather than a species that has seen its habitat and populations vanish,” Noah Greenwald, endangered species director for the group, said.

“The lesser prairie chicken was first identified as needing protection in 1995, yet the oil and gas industry did nothing to ensure its survival for 20 years until regulations were proposed to protect it,” he said.

For its part, the oil and gas industry sued because, in its view, the Fish and Wildlife Service didn't make a fair evaluation of whether, in fact, the conservation efforts appeared to be reasonable.

Lawmakers Want Policy Change

Rep. Rob Bishop (R-Utah), chairman of the House Natural Resources Committee, issued a statement saying, “The Obama administration has been merciless in its quest to list species—even when the science says otherwise. This is exactly why the House passed provisions to stop FWS from undoing the states' conservation work on both the Lesser Prairie Chicken and the Sage Grouse.”

A statement from Sen. James Inhofe (R-Okla.) welcomed the ruling and said, “It is my hope that this ruling, along with language providing a temporary delisting of the [lesser prairie chicken] in the House-passed National Defense Authorization Act, will enable states to effectively conserve species without all of the burdensome federal regulations that come with a listing under the ESA.”

A House-Senate conference was still trying to work out differences over the National Defense Authorization Act (H.R. 1735) when members of Congress halted work in the first week of August for a summer recess.

James Banks of law firm Hogan Lovells US LLP was the lead attorney for the plaintiffs in the federal district court. Justice Department attorney Daniel Joseph Pollak led the defense team for the Interior Department and the Fish and Wildlife Service.

To contact the reporter on this story: Alan Kovski in Washington at

To contact the editor responsible for this story: Larry Pearl at

The ruling in Permian Basin Petroleum Ass'n v. Interior is available at

More information about the lesser prairie chicken is available at