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Court Ends Lesser Prairie Chicken Rule

Todd Neeley 4/01 5:50 PM

LINCOLN, Neb. (DTN) -- A federal judge has struck down a Biden administration rule that would have split the lesser prairie chicken into two distinct populations for the first time. The decision is a major victory for ranchers and others who had challenged the rule.

The Biden administration finalized a rule on Nov. 25, 2022, extending Endangered Species Act protections to what was the threatened northern distinct population of the lesser prairie chicken.

In its order, the U.S. District Court for the District of Western Texas said this week that the U.S. Fish and Wildlife Service did not follow the law in promulgating the rule.

"As observed earlier, the 4(d) rule decision-making universe is not established by the constraints placed on the listing decision," U.S. District Judge David Counts said in a court document.

"While, as here, data supplying the listing decision supports the secretary's choice of necessary prohibitions, that data does not check the advisability box. Such a determination requires consideration of costs. Because fish and wildlife failed to account for costs, to include cost of compliance, it failed to consider the 'all relevant factors' and ignored 'important aspects of the problem' before it."

In March 2023, the Permian Basin Petroleum Association, state cattle organizations and the state of Texas filed separate lawsuits in a Texas court challenging the U.S. Fish and Wildlife Service's endangered species list designation of the lesser prairie chicken.

Several Kansas ranchers, farmers and counties filed a similar lawsuit in federal court in Kansas, and a court moved it to the same Texas court.

"By acknowledging that the Endangered Species Act requires the government to balance conservation efforts with their economic impact, the court restored the ability of these ranching families to earn a living," said Charles Yates, an attorney at Pacific Legal Foundation, representing the plaintiffs.

The Biden-era rule 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 the southern area, which includes parts of western Texas and eastern New Mexico. The bird is listed as "threatened" in a larger northern territory that includes eastern Colorado, western Kansas, western Oklahoma and a few counties in the Texas Panhandle.

The Kansas plaintiffs asked the court to set aside the final rule regarding the northern population and send the rule back to U.S. Fish and Wildlife.

Pacific Legal Foundation filed the Kansas lawsuit on behalf of Lone Butte Farm LLC, Schilling Land LLC, JDC Farms Inc. and the Kansas Natural Resource Coalition. The coalition represents 30 county boards of commissioners in the state.

The Edwards and Schilling families have operated their farms and ranches in western Kansas for generations.

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

The Kansas lawsuit outlined how the change in listing of the lesser prairie chicken has affected farms, ranches and counties.