FWS Removes Lesser Prairie Chicken from ESA

Published August 29, 2016

On July 20, 2016, the U.S. Fish and Wildlife Service (FWS) officially delisted the lesser prairie chicken from the Endangered Species List (ESL).

It had previously been listed as “threatened.”

The action came 10 months after a judge for the U.S. District Court for the Western District of Texas ruled federal regulators erred in listing the lesser prairie chicken as threatened under the Endangered Species Act.

In April 2014, as part of an agreement that settled a lawsuit with a number of environmental groups, FWS listed the bird as threatened. In response to the decision, the Permian Basin Petroleum Association and four New Mexico counties sued FWS, arguing the agency failed to consider the Lesser Prairie Chicken Initiative (LPCI), a voluntary conservation effort made by wildlife regulators, businesses, and individual landowners in the affected states: Colorado, Kansas, New Mexico, Oklahoma, and Texas. LPCI’s primary goal is to protect the species in order to avoid the potentially severe economic impacts of placing the chicken on the ESL.

Court Overrules FWS

In his September 1, 2015, decision, Senior U.S. District Court Judge Robert Junell vacated the FWS’ “Final Rule,” which had listed the lesser prairie chicken as a threatened species. Junell sided with the trade association and counties under the ESA, agreeing FWS had failed to fully “tak[e] into account those efforts, if any, being made by any State … to protect such species.”

Junell also concluded FWS violated its own rules by listing the lesser prairie chicken as threatened, writing, “FWS erred, acting arbitrarily and capriciously by improperly interpreting and then applying the [FWS’s Policy and Evaluation of Conservation Efforts] to the [Range Wide Plan] in a cursory and conclusory manner. This error warrants vacatur of the final rule and listing determination.”

On February 29, 2016, the Texas federal district court denied FWS’ request for reconsideration of its September ruling.

‘Victory for Landowners’

Texas Agriculture Commissioner Sid Miller says he’s pleased FWS finally carried out the federal court’s decision and delisted the lesser prairie chicken.  

“We believe in sound decision-making, private property owners’ rights, and the fact that government is not the answer to every problem, and I’m pleased to see the U.S. Fish and Wildlife Service has dropped its latest attempt to impede our rights,” Miller said. “The latest action is a tremendous victory for Texas landowners, who have been battling the burden of an overreaching federal government and can now work to protect the lesser prairie chicken through [voluntary] conservation methods already working across many states.

“I commend our municipalities, farmers, and ranchers, who for years have proactively invested millions of dollars and acres into the voluntary lesser prairie chicken conservation program,” Miller said. “We must continue our efforts to fight federal overreach and protect our private property owners.”

Brian Seasholes, director of the Endangered Species Project at the Reason Foundation, believes private conservation efforts are more effective at protecting species than ESA.

“The ESA is an 800-pound gorilla that can scare landowners and may lead to counterproductive results,” said Seasholes. “The polar opposite [of the ESA] is using a cooperative approach, as was done here.”

Mark Ramsey ([email protected]) writes from Houston, Texas.


Judge Robert Junell, Permian Basin, et al. v. U.S. Fish and Wildlife Service, Sept 1, 2015: https://heartland.org/publications-resources/publications/permian-basin-et-al-v-us-fish-and-wildlife-service