On March 22, 2023, the State of Texas filed a lawsuit against the Fish and Wildlife Service (“FWS”) over its recent decision to list two population segments of the lesser prairie-chicken as threatened and endangered under the Endangered Species Act (“ESA”). The LPC was listed in November 2022 following a decades-long debate over whether listing the species was appropriate. If the lawsuit filed by the State of Texas is successful, it could result in the listing decision being overturned.
The Endangered Species Act
The ESA was adopted by Congress in 1973 for the purpose of conserving both species facing the threat of extinction, as well as the ecosystems on which those species depend. To achieve that goal, the ESA requires all those species at risk of extinction to be identified and added to a list maintained by FWS and the National Marine Fisheries Service (“NMFS”) (collectively, “the Services). A species can be listed under the ESA as either “threatened” or “endangered.” A species will be listed as “endangered” if the Services determine that the species is “in danger of extinction throughout all or a significant portion of its range[.]” 16 U.S.C. § 1532(6). A species will be listed as “threatened” if the Services conclude that the species “is likely to become an endangered species within the foreseeable future[.]” 16 U.S.C. § 1532(20).
To be considered for listing under the ESA, the Services must determine that a species meets one of the following five criteria: (1) there is a present or threatened destruction, modification, or curtailment of its habitat or range; (2) the species is overutilized for commercial, recreational, scientific, or educational purposes; (3) the species is declining due to disease or predation; (4) there is an inadequacy of existing regulatory mechanisms; or (5) there are other natural or manmade factors affecting its continued existence. 16 U.S.C. § 1533 (a)(1). Once a species is listed, it will receive certain protections under the ESA. Those protections include a prohibition on “take” of a listed species, which is broadly defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The term “harm” is further defined as “an act which actually kills or injures wildlife” including any actions which modifies or degrades a species’ habitat so that wildlife is killed or injured by “significantly impairing essential behavior patterns, include breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. While these protections are granted automatically to all species listed as endangered under the ESA, for species listed as threatened, the Services must specify which ESA protections will apply.
Along with authorizing the listing of entire species, the ESA also allows the Services to list “any distinct population segment of any species[.]” 16 U.S.C. § 1532(16). Although the text of the ESA does not define “distinct population segment,” the Services have issued guidance on how to interpret and implement the term. In the guidance document titled “Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act” (“DPS Policy”), the Services clarify that they will consider three elements when making a decision regarding the status of a possible DPS: (1) the discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment’s conservation status in relations to the ESA’s standards for listing. The Policy goes on to explain that a species population will be discrete if it is “markedly separated” from other populations of the species by physical, physiological, ecological, or behavioral factors, or if populations of the species are separate by international boundaries. The significance of a discrete population segment will be determined by factors such as whether the population segment lives in an ecological setting unusual for the species, whether loss of the population segment would result in a significant gap in the range of the species, whether the population segment represents the only surviving natural occurrence of the species in its historic range, and whether the population segment has “markedly” different genetic characteristics from the rest of the species. Finally, when determining whether a DPS should be listed under the ESA, the Services will consider the same five factors that it would consider if it was deciding to list the species as a whole.
Listing the Lesser Prairie-Chicken
The lesser prairie-chicken is a bird species that historically was found through Southeastern Colorado, Southwestern Kansas, Western Oklahoma, the Panhandle and South Plains of Texas, and Eastern New Mexico. Today, it only occupies a portion of its historic range, with some estimates suggesting that the lesser prairie-chicken’s current range has been reduced anywhere from 80-90%. According to FWS, a southern population of the lesser prairie-chicken is located in in New Mexico and Texas, and a larger northern population is located in Texas, Oklahoma, Colorado, and Kansas. While the two populations were at one time likely connected, FWS has concluded that habitat loss and fragmentation has resulted in the two populations becoming genetically distinct due to being geographically isolated by 95 miles. The overall population of the lesser prairie-chicken has also experienced significant decline since at least the 1960s.
In general, lesser-prairie chickens live for two-three years, and reproduce in the spring and summer. To reproduce, male lesser-prairie chickens gather at assembly areas known as leks during the spring to attract females. Males show strong fidelity to their breeding sites, and will return to the same lek multiple times, even if female attendance and habitat conditions have degraded. The preferred habitat for lesser prairie-chickens is mixed-grass prairies and shrublands dominated either by sand sagebrush or sand shinnery oak. Lesser prairie-chickens also favor areas with few to no anthropogenic features or other vertical structures. FWS notes that habitat loss is one of the primary threats currently affecting the lesser prairie-chicken. According to FWS, the loss of habitat is mostly a result of human activities such as oil and gas production, wind energy development, and livestock grazing.
The effort to list the lesser prairie-chicken under the ESA began in 1995 when first received a petition to list the prairie-chicken as threatened. Although FWS did respond to the petition with a finding that listing the lesser prairie-chicken may be warranted, it declined to list it at that time because other higher priority listing actions took precedence. FWS did ultimately list the lesser prairie-chicken as threatened in 2014, but that decision was vacated the following year by the United States District Court for the Western District of Texas. In 2016, FWS received another petition to list the lesser prairie-chicken under the ESA. This time, the petitioners asked that FWS list the prairie-chicken as endangered instead of threatened. FWS responded to the petition with a finding that listing the lesser prairie-chicken may be warranted, but did not make a final listing decision, which prompted the petitioners to file suit. In 2019, FWS and the petitioners entered into a stipulated settlement agreement that FWS would issue a 12-month finding on whether to list the lesser prairie-chicken. In fulfillment of that agreement, FWS issued a proposed rule in June 2021 to list two distinct population segments of the lesser prairie-chicken under the ESA. Under the proposed rule, FWS would list the Southern distinct population segment (“Southern DPS”) as endangered, and the Northern distinct population segment (“Northern DPS”) as threatened. A final listing rule was issued in late 2022, and on January 24, 2023, the two populations of lesser prairie-chicken were officially listed under the ESA. Two months later, the State of Texas filed a lawsuit.
The Current Lawsuit
In State of Texas v. U.S. Dep’t of Interior, No. 7:23-cv-00047 (W.D. Tex. March 21, 2023), Texas along with several of its state departments have filed suit against FWS claiming that its decision to list the lesser prairie-chicken violates the ESA. While the plaintiffs make numerous arguments, three in particular are worth examining: (1) FWS misapplied its distinct population segments policy when it designated two population segments of the lesser prairie-chicken; (2) FWS failed to analyze the comprehensive conservation efforts currently in place to protect the lesser prairie-chicken; and (3) the portion of the rule that applies to the Northern DPS exceeds FWS’s statutory authority by including an exception to the take prohibition that outsources FWS’s authority to currently unidentified third parties.
The plaintiffs argue that FWS’s decision to list two distinct population segments of the lesser prairie-chicken violates the ESA because the final listing rule improperly applies the DPS Policy and fails to demonstrate that the populations meet the Policy’s requirements. According to the plaintiffs, the plain language of the DPS Policy requires FWS to analyze a possible distinct population segment as it compares to the rest of the species. Instead, FWS improperly split the species into two halves and compared the halves to one another. Additionally, the plaintiffs claim that FWS failed to show that the two population segments of the lesser prairie-chicken satisfied the element of discreteness outlined in the DPS Policy. According to the plaintiffs, FWS concludes that the populations are discrete because they are 95 miles apart and there is a lack of data showing movement between the two populations. However, the plaintiffs claim that FWS failed to show that there was an actual lack of genetic diversity between the two populations which is necessary for establishing discreteness. Finally, the plaintiffs claim that FWS failed to show that the two populations of lesser prairie-chicken satisfied the element of significance as outlined in the DPS Policy because FWS failed to show how the loss of one population would create a significant gap in the species’ range. The plaintiffs argue that without those two findings, FWS cannot establish two distinct population segments of lesser prairie-chickens for purposes of the ESA.
Next, the plaintiffs claim that FWS failed to consider the impacts of on-going conservation efforts when it made its listing decision for the lesser prairie-chicken. Specifically, the plaintiffs argue that FWS should have applied its Policy for Evaluation of Conservation Efforts (“PECE”) to two existing conservation programs. If FWS had done so, the plaintiffs claim that the listing rule would have more adequately examined the future benefits of the conservation programs to the lesser prairie-chicken. The PECE was adopted by FWS in 2003, and outlines how FWS will evaluate conservation efforts that have “not yet been implemented or have not yet demonstrated effectiveness” when making listing decisions under the ESA. The two conservation programs highlighted by the plaintiffs were established 2010-2013, and the plaintiffs note that FWS declined to apply the PECE because the programs were on-going, not newly established, at the time that the listing decision was being drafted. However, the plaintiffs claim that if FWS had evaluated the programs under the PECE, it Service would have more appropriately analyzed the benefits of the programs.
Finally, the plaintiffs challenge a portion of the rule that specifically applies to the Northern DPS which FWS designated as threatened. As previously discussed, when a species is listed as threatened, the ESA’s protections are not automatically applied to the species as would happen if the species were listed as endangered. Instead, FWS must clarify which ESA protections will apply to a threatened species. In the final listing decision for the lesser prairie-chicken, FWS determined that the prohibition on take would apply to the Northern DPS. As part of that determination, FWS included a variety of activities that would not be considered take of a Northern DPS prairie-chicken. Among those exempted activities was livestock grazing, provided that the grazing occurs pursuant to a site-specific grazing plan developed by a “Service-approved party.” According to FWS, to be considered “Service-approved party,” the individual or entity must “possess adequate training or experience, typically 5 years or more, in the fields of wildlife management, biology, or range ecology,” as well as demonstrate the ability to develop a grazing management plan which ensures that grazing activities are compatible with lesser prairie-chicken habitat needs. The plaintiffs argue that this requirement is an unlawful delegation of authority to private parties that FWS is not authorized to make. According to the plaintiffs, this decision exceeds FWS’s ESA authority.
The lawsuit filed by the State of Texas is not the only challenge to FWS’s decision to list the lesser prairie-chicken. After issuing a Notice of Intent to Sue in January 2023, a coalition of industry groups lead by Premian Basin Petroleum Association and National Cattlemen’s Beef Association have also filed their own suit arguing that the listing decision for the lesser prairie-chicken should be vacated. In Permian Basin Petroleum Ass’n v. Dep’t of Interior, No. 7:23-cv-00049 (W.D. Tex. March 21, 2023). The plaintiffs in that case raise largely similar claims as the plaintiffs in State of Texas v. U.S. Dep’t of Interior, including the claims that FWS improperly applied the DPS Policy and failed to apply the PECE.
While it is unclear what the ultimate outcome of these lawsuits, it seems likely that the legal battle over whether to list the lesser prairie-chicken under the ESA is far from settled.
To read the complaint in State of Texas v. U.S. Dep’t of Interior, click here.
To read the complaint in Permian Basin Petroleum Ass’n v. Dep’t of Interior, click here.
To read the listing decision for the lesser prairie-chicken, click here.
To read the DPS Policy, click here.
To read the PECE, click here.
To read the text of the ESA, click here.
For more National Agricultural Law Center resources on the ESA, click here.