Species Listing Dropped

DOJ Drops Appeal on Lesser Prairie Chicken One Week After Filing

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Federal efforts to list the lesser prairie chicken as endangered came to an end Wednesday. (Photo by Marcus Miller, courtesy NRCS)

OMAHA (DTN) -- The U.S. Department of Justice has decided to drop an appeal of a district court decision, ending its pursuit of listing the lesser prairie chicken as endangered through the Endangered Species Act.

The decision comes after the Justice Department had filed arguments May 5 to the U.S. Court of Appeals for the Fifth Circuit, asking the court to review a lower-court ruling in Texas that the U.S. Fish and Wildlife Service's efforts were unconstitutional.

The Justice Department and U.S. Fish and Wildlife Service offered no explanation for dropping the appeal, saying in a statement Wednesday efforts to protect the species would continue.

The decision came as a welcomed surprise to rural lawmakers and agriculture groups that fought the push to list the lesser prairie chicken as endangered. Farm organizations had called the listing a threat to farmers and ranchers.

The decision to drop the endangerment listing came in a letter to the U.S. District Court for the Western District of Texas in San Antonio, which ruled recently the efforts to list the lesser prairie chicken were unconstitutional.

The Texas court ruled the listing was "arbitrary and capricious." The court determined voluntary conservation efforts that have resulted in overall population increases of about 25% from 2014 to 2015, were ignored by the administration.

The Fish and Wildlife Service announced a plan to protect the species in 2014. In July 2015, the agency cited that the prairie chickens were growing in population.

Increases were observed in three of four of the bird's ecoregions across Colorado, Kansas, New Mexico, Oklahoma and Texas. The Sand Sage Prairie Region of southeast Colorado showed the biggest gain at about 75% from a year ago. The mixed grass prairie region of the northeast Panhandle of Texas, northwest Oklahoma and south-central Kansas saw about a 30% increase, while the shortgrass prairie region of northwest Kansas population grew by about 27%.

Aerial surveys by the Western Association of Fish and Wildlife Agencies led to estimates that the bird's population increased by nearly 50% since the 2013 drought in Kansas. As rainfall has returned to historical levels since 2014, the bird's population has increased.

Sen. Jerry Moran, R-Kan., said in a statement the decision should open the door to continued improvement of lesser prairie chicken habitats without harming agriculture.

"The decision today to drop the appeal highlights this administration's flawed approach to listing the lesser prairie chicken as a threatened species in the first place," Moran said. "Stakeholders in Kansas need certainty on the listing. I hope the decision is recognition by the USFWS that increased rainfall and locally driven, voluntary conservation is the best approach to preserving this species -- not more burdensome regulations from the federal government.

"My fear is USFWS made a strategic decision to restart the listing process for the bird instead of continuing to fight a losing battle in court. It is incumbent on USFWS to be open and transparent about its future intentions for the LPC listing. I have asked for answers from USFWS, and will continue to advocate for policies that prevent the service from pursuing future efforts to re-list the species."

Sen. Pat Roberts said in a statement Wednesday, "I have said all along that with a little rain, we will see the lesser prairie chicken population bounce back. As we have come to expect with the Obama administration, they never let common sense get in the way of a costly regulation."

The USFWS said it plans to reassess the status of the species based on the court's ruling and the best available scientific data.

Sen. Jim Inhofe, R-Okla., chairman of the Senate Environment and Public Works Committee, said he was surprised by the move.

"The Obama administration's decision not to appeal a district court ruling, throwing out the listing of the lesser prairie chicken as a threatened species, is welcome and different news from this administration," he said.

"The court's decision to vacate the listing is a win for Oklahoma and the four other state's conservation agencies and our local and industry partners who have committed funding and other resources to implement a conservation plan without the federal government's interference. However, even with this win, I will be looking to put safeguards in place to block the U.S. Fish and Wildlife Service from revisiting the issue until the states' plan has time to develop and show its success."

Ethan Lane, executive director of the National Cattlemen's Beef Association Federal Lands and Public Lands Council, said in a statement that conservation efforts have to be allowed to work.

"Voluntary conservation efforts like the range-wide plan are working to recover the species and must be given an opportunity to succeed without the unnecessary burden of a federal ESA listing," he said.

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

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Todd Neeley