Earlier this month, a federal district court in Texas dealt a blow to the U.S. Fish and Wildlife Service (FWS) and its misguided approach to protecting species, in this particular case the Lesser Prairie Chicken.
Five states have endeavored to respect the environment, the economy, and individual rights by accommodating the needs of private property owners, industry, and the Lesser Prairie Chicken in the Great Plains region. That didn’t stop the FWS, in April 2014, from listing the bird as a “threatened” species under the Endangered Species Act (ESA), enacting the land and work restrictions that come with the designation.
The Lesser Prairie Chicken roams across parts of Colorado, Kansas, New Mexico, Oklahoma, and Texas and has sustained drops in population due to drought and changes in land use. In a classic sue and settle case, environmental extremist groups sued the FWS to list the bird under the Endangered Species Act, even though the FWS originally determined the bird to be a comparatively low priority. Listing a species under the ESA comes with severe land restrictions. People whose land is considered part (or even potentially part) of the species’ habitat are no longer allowed to use their property as they see fit and most often are uncompensated for the loss of value. Such severe restrictions turn the listed species into liabilities for land owners rather than assets. Because the regulatory costs are so high, landowners have less incentive to conserve a species or its habitat.
Hoping to avoid this, the Western Association of Fish and Wildlife Agencies (WAFWA) began to develop a Lesser Prairie Chicken Range-Wide Conservation Plan in 2012 that “brings together the different voluntary conservation programs in the high plains into a common approach to provide for both minimization and mitigation of impacts and conservation of [the Lesser Prairie Chicken] habitat.” It includes “the five [Lesser Prairie Chicken] range states, industry; oil, gas, wind, electricity and telecommunications, and private landowners; farmers and ranchers” along with the USDA and other conservation nongovernmental organizations.
Nevertheless, the FWS still listed the bird as “threatened.” In doing so, however, the district court determined that the FWS didn’t follow its own procedures for making the listing determination, as spelled out in its Policy for Evaluation of Conservation Efforts (PECE) analyzing the sufficiency of non-federal plans before listing a species. The court concluded that the FWS’s required analysis:
… was neither “rigorous” nor valid as FWS failed to consider important questions and material information necessary to make a proper PECE evaluation of the [rangewide plan]. … Further, the failure to consider this information was inconsistent with the clear requirements of PECE.
Among the problems with the FWS’s analysis that led to the bird being listed as threatened was the unsupported assumption that the WAFWA plan wasn’t likely to be effective because not enough private landowners had committed land for improved habitat and management. The FWS didn’t bother to make the required “educated forecast” regarding future enrollment—not to mention that enrollment had just opened at the time.
Consequently, the court determined that the FWS’s decision to list the Lesser Prairie Chicken as “threatened” was “arbitrary and capricious” and vacated the “threatened” listing.
To put this in context, it is extremely rare for a court to determine that an agency has acted in an arbitrary and capricious manner. The case could play an important role in the outcome of initial and final listings for some 1,000 species the Obama administration has been working through since 2011, and most immediately a court-mandated decision on the Greater Sage-Grouse that covers 11 Western states by September 30.
Reflecting on the decision, Noah Greenwald, endangered species director for the Center for Biological Diversity, said, “This essentially means that oil companies can build an oil derrick over these birds’ nests.”
Not only is this inflammatory rhetoric inaccurate, but it also does a disservice to developing policies that actually help. Instead, as the WAFWA responded to the decision, “the court decision underscores the validity of a comprehensive voluntary conservation effort.”
Under the voluntary program, industries and other participants pay fees for enrollment and activities, like oil and natural gas and wind development, that unavoidably affect the Lesser Prairie Chicken habitat. These fees pay to restore acres of habitat and compensate private property owners for taking actions to improve or set aside habitat lands. According to the WAFWA, in its first year, 11 million acres were enrolled in the program, $46 million in fees collected, and over 180 companies involved. With help from better rainfall, the Lesser Prairie Chicken population grew 25 percent from 2014 and 2015.
Species conservation can be accomplished through the voluntary efforts of private property owners and the work of states. Unfortunately, the FWS, through the Endangered Species Act, takes a heavy-handed and ineffective approach that treats property owners as obstacles and views states as inferior to the federal government.
Pessimists are calling the court’s decision a “win” for industry. In reality, it’s a win for sound, local environmental policy and the Lesser Prairie Chicken.
This piece originally appeared in The Daily Signal