Federal Judge Vacates Lesser Prairie-Chicken Rule

September 2, 2015 | Kristine A. Tidgren

Yesterday, a federal judge for the United States District Court for the Western District of Texas vacated the U.S. Fish and Wildlife Service’s (FWS) final rule[i] in which the agency listed the lesser prairie-chicken as a "threatened" species.

The controversial rule was published April 10, 2014, and two months later the Permian Basin Petroleum Association and several New Mexico counties filed a lawsuit challenging its validity. The plaintiffs alleged that the FWS did not provide a rational basis for its listing decision or follow its own procedural rules.

The "threatened” listing was a step below “endangered.” It meant that the species was likely to become extinct within the foreseeable future and that the bird was entitled to protection. The “threatened” listing, as opposed to an "endangered" listing meant somewhat more flexibility under the Endangered Species Act as to how the protections were to be implemented. Nonetheless, the rule greatly impacted oil and gas, agricultural, and other key interests in the states of Colorado, Kansas, New Mexico, Oklahoma, and Texas.

In his 29-page, September 1, 2015, order, Judge Junell vacated the FWS’s final rule. He did so after finding that the FWS had failed to follow its own rule for evaluating existing conservation efforts when making a listing decision.  Although the FWS evaluated the formal conservation plan that had been implemented by the five impacted states, the court found that it did not perform a “rigorous” analysis. Nor did the FWS evaluate projected impacts of the conservation plan beyond the present and short term or evaluate the plan in conjunction with other ongoing conservation efforts. These failures, the court stated, “tainted critical findings and determinations, resulting in an unwarranted final rule.”

This ruling ends another chapter of what will no doubt continue to be a contentious battle over an unassuming little bird. It also reflects a larger ongoing battle in many sectors regarding the perception of increased government regulation.

Read the order here.


[i] LPC Final Rule, 79 Fed. Reg. 19,974 (April 10, 2014).