Purchase photos

New round of federal lawsuits at loggerheads with one another

6/20/2014

By MIKE CORN

mcorn@dailynews.net

A pair of opposing lawsuits have been filed in the wake of the U.S. Fish and Wildlife Service's decision to list the lesser prairie chicken as threatened.

The latest was filed Tuesday by three environmental groups, two of them part of a 2011 court settlement ultimately resulting in the bird's listing. The groups are Defenders of Wildlife, Center for Biological Diversity and WildEarth Guardians.

Their lawsuit seeks to force FWS to change its listing from threatened to the more severe endangered category.

Gov. Sam Brownback was sharply critical of the lawsuit.

"It is not surprising that these extremist environmental organizations would file a lawsuit in Washington, D.C., that effectively attempts to shut down the energy and agriculture economies of western Kansas," he said in a statement.

"Their previous litigation is what caused the threatened listing of the lesser prairie chicken in the first place. But it appears they are not satisfied with the multi-million dollar costs already imposed on Kansans. What they really seek is a level of economic devastation that would do nothing to enhance the species or its habitat.

"It is the governor's job to protect the rights of Kansans, and that is what I am doing. We will oppose this position and move forward with our own initiatives to reverse the unwarranted federal action."

He didn't say what the state's initiatives might be and he didn't comment on the second lawsuit filed by four New Mexico counties and the trade association representing the most prolific oil-producing region in the nation. They're asking a judge to determine FWS violated administrative rules and set aside the listing.

Both lawsuits point to population surveys conducted by the five states -- Kansas, Oklahoma, Colorado, New Mexico and Texas -- where the bird can be found.

The lawsuit filed by the Permian Basin Petroleum Association and Chaves, Roosevelt, Eddy and Lea counties in New Mexico, contend the agency "apparently mistrusted" the 2013 estimates because it cited the 2012 estimate of 34,400 birds as the "best estimate of current population size."

The lawsuit filed Tuesday by the environmental groups challenge the threatened listing rather than an endangered listing based partly on the 2013 survey showing the numbers had fallen to 17,616 birds.

Instead, the group criticizes the agency's drive to create a so-called 4(d) rule "exempting the primary threats to the species -- including loss and fragmentation of habitat from agriculture, livestock grazing, oil and gas activities and development.

"Here, the service's desire to exercise the regulatory flexibility of Section 4(d) impermissibly trumped its consideration of the best available science and the ESA's listing factors."

Plus, the groups contend, developing a 4(d) rule would have required a National Environmental Policy Act analysis.

That lawsuit asks the court to send the issue back to FWS for further review and the revocation of the 4(d) rule, which also endorsed a range wide plan developed by the five states where the bird can be found.

But the latest lawsuit claims the rule requires an environmental assessment because it allows the killing of more than 1,000 birds a year -- nearly 6 percent of the total population.

"The service concluded 'while there have been major range reductions (84 percent) as a result of factors that have not been abated, there are sufficient stable populations such that the species is not on the brink of extinction" chiefly in 'northwestern Kansas.' "

Specifically, in the Permian Basin lawsuit, the litigants claim they did exactly what FWS asked them to do to help preserve the bird, and contend the agency violated its own policy of weighing the benefits of a conservation plan even before it takes effect.

"What we want is a fair hearing in the court," said Permian Basin Petroleum Association President Ben Shepperd, "which we feel we did not receive from the service."

"Despite the service's own data and analysis showing that the lesser prairie chicken population has increased over the last decade and its occupied range has nearly tripled in the last 30 years, the service based its listing decision in large measure on its conclusions that the LPC is suffering from a reduced population and diminished habitat," the lawsuit states. "These unjustified conclusions, coupled with the service's failure to fairly consider the expected future benefits of conservation efforts covering millions of acres and costing tens of millions of dollars, led the defendants to their irrational conclusion that the LPC population will decline, that its range will contract in the future and that the lesser prairie chicken is therefore likely to become in danger of extinction in the foreseeable future."

That lawsuit contends the occupied range in the 1880s was thought to cover 138,225 square miles, falling to less than 50,000 by 1969.

In 2007, the lawsuit claims, state wildlife agencies reviewed the estimates, boosting the historic range to 180,309 square miles and the current range at slightly more than 25,000 square miles.

Revisions since then have boosted the range to more than 27,000 square miles.

That's the driving force for the association's call for a judge to set aside the listing decision.