KS Farms Sue on Lesser Prairie Chicken

LINCOLN, Neb. (DTN) -- A group of Kansas farms, ranches and counties allege the adding of the lesser prairie chicken to the endangered species list is having far-reaching and damaging effects on their ability to manage the land and conduct county business, in a new lawsuit filed in federal court in Kansas on Thursday.

The Biden administration finalized a rule on Nov. 25, 2022, extending Endangered Species Act protections to what was the threatened Northern distinct population segment of the bird.

A complaint filed by the Pacific Legal Foundation in the U.S. District Court for the District of Kansas on behalf of the plaintiffs, details the challenges faced by Lone Butte Farm, LLC, Schilling Land, LLC, and JDC Farms, Inc., as well as the Kansas Natural Resource Coalition. The coalition represents 30 county boards of commissioners in the state.

The plaintiffs ask the court to set aside the final rule as to the Northern DPS of the lesser prairie chicken and to remand the rule back to U.S. Fish and Wildlife.

The farms and ranches in western Kansas have been operated by the Edwards and Schilling families for generations.

The administration's change on the lesser prairie chicken means livestock producers in parts of five states are required to create grazing plans mainly to protect themselves from conducting activities deemed as harmful to the species.

LONE BUTTE FARM

When it comes to Lone Butte Farm in Logan County, Kansas, the complaint said the change to the lesser prairie chicken's status has hurt the operation in measurable ways. The operation grows corn, wheat, sorghum and cover crops, ranches cattle and operates two oil wells.

The 7,000-acre ranch also includes about 3,000 acres of contiguous acres of native grassland maintained by the family.

"As a result, their property contains a large amount of high-quality native grassland habitat," the complaint said.

"That careful stewardship is now penalized. Because the Edwards family's property is identifiable within the service's published range maps for the lesser prairie chicken and because the family has maintained large areas of native grassland habitat, the rule imposes significant direct regulatory burdens upon their business operations."

The complaint then lists five ways the family's operation is injured by the Biden administration's actions, as it does for the other farms and ranches.

To avoid liability for the possible take of the species, the ranch is required to have a site-specific grazing plan that requires the family to "hire a service-approved consultant to develop a grazing plan before they can run cattle on their property--leading to significant compliance costs and costly alterations to their operations."

In addition, the complaint says the new rule has made a number of activities routinely performed on Lone Butte Farm's land "prohibited by the rule." That includes from operating motor vehicles on their property to maintaining existing oil and gas infrastructure on their property.

The lawsuit said the rule will "severely restrict" the Edwards family's future land use planning decisions by "prohibiting the conversion of the native grasslands on their property to other land uses such as row crop agriculture."

The ranch now is subject to citizen lawsuits and agency enforcement actions under the Endangered Species Act and the new rule has "reduced the market value" of the Edwards family's property, "due to public perceptions of the burdens" imposed by endangered species regulations.

OTHER FARMS, RANCHES

The complaint also lists similar damages for the other plaintiff farms and ranches.

JDC Farms, for example, grows crops and raises cattle on about 10,000 acres of privately owned land in Wallace County, Kansas. That includes maintaining about 6,000 acres of native grassland.

"Prior to the finalization of the rule for the lesser prairie-chicken, the Schillings saw no conflict between their cattle-grazing operations and the maintenance of high-quality native grassland habitats," the complaint said.

"The Schillings are now being punished. Because the Schilling family's property is identifiable within the service's published range maps for the lesser prairie-chicken and because the Schillings have maintained and reclaimed large areas of native grassland habitat, the rule imposes significant direct regulation upon their business operations."

The Kansas Natural Resource Coalition claims the new rule is requiring its member counties to expend more resources to prevent the illegal take of the lesser prairie chicken.

The complaint said the rule will "have a devastating impact on the industries that drive the local economies of KNRC's member counties--such as ranching and energy development -- negatively impacting county tax receipts."

SPECIES TERRITORY

The bird is listed as "threatened" in a larger territory that includes eastern Colorado, western Kansas, western Oklahoma and a few counties in the Texas Panhandle.

The rule finalized the U.S. Fish and Wildlife Service split the lesser prairie chicken into two distinct populations for the first time.

The southern population of lesser prairie chickens is now considered endangered in parts of western Texas and eastern New Mexico.

The lawsuit outlines five claims for relief. It alleges the USFWS failed to determine the rule was "necessary and advisable" under the Endangered Species Act; failed to consider all relevant factors before finalizing; the rule exceeds statutory authority and that the federal agencies failed to issue regulatory flexibility analyses.

The farms, ranches and counties allege the USFWS "willfully ignored" limitations placed on the agency by Congress.

"It explicitly refused to consider the costs and benefits of such broad regulation," the lawsuit said, "violated basic principles of reasoned administrative decision-making; and shrugged off the Regulatory Flexibility Act's requirement that it consider the impacts of its actions on small entities -- such as the counties and private landowners."

LONG BATTLE

In March, Texas Attorney General Ken Paxton filed a lawsuit against the U.S. Department of Interior and the U.S. Fish and Wildlife Services in the U.S. District Court for the District of Western Texas. The petroleum and cattle industries also filed similar litigation.

The battle over the lesser prairie chicken listing goes back to 1995 when the Center for Biological Diversity and other groups first petitioned the Fish and Wildlife Service to protect the bird.

U.S. Fish and Wildlife Services placed the lesser prairie chicken on a "candidate species" list in 1998. The Center for Biological Diversity continued to press the issue, leading to a 2011 settlement requiring USFWS to make determinations on hundreds of animals. That prompted USFWS to first propose listing the lesser prairie chicken as a threatened species in 2012.

In April 2014, the agency declared the species as threatened. That led to more lawsuits in Oklahoma and Texas. In September 2015, the U.S. District Court for the District of Western Texas threw out that USFWS decision.

Read more on DTN:

"ESA Saga of the Lesser Prairie Chicken," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

(c) Copyright 2023 DTN, LLC. All rights reserved.