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Ruling strikes down lesser prairie-chicken’s ‘threatened’ listing

A federal judge on Tuesday ruled the lesser prairie-chicken’s listing as threatened under the Endangered Species Act went too far.

Judge Robert Junell granted the motion of Permian Basin Petroleum Association, which filed the suit along with Chaves, Eddy, Lea and Roosevelt counties in New Mexico, to declare the U.S. Fish and Wildlife Service’s listing as unlawful and to set aside the listing, according to court documents.

“FWS failed to properly apply (its standards) to its evaluation of the (rangewide conservation plan), resulting in material error,” Junell wrote in his ruling. “This caused FWS to arbitrarily and capriciously list the (lesser prairie-chicken) as a threatened species.”

He called the FWS analysis of the situation “neither rigorous nor valid.”

“We are very disappointed with the judge’s decision and are now considering options in conjunction with our legal counsel,” said Brian Hires, FWS spokesman.

Junell ruled in favor of the FWS opposing motion for summary judgment because the arguments by the association and counties didn’t meet the burden of proof to show FWS failed to offer a rational explanation for its decision to list the bird or to “respond to significant and highly relevant comments.”

Junell said in his decision the association and counties did not address these questions or did so too vaguely to prove anything.

The petroleum association and counties had argued the service had not followed its own rules in evaluating the lesser prairie-chickens’ situation, particularly by not taking into account efforts by five states, including Texas, and public and private conservation groups to restore and improve habitat for the birds facing a severe decline in population.

A report released in July by Western Association of Fish and Wildlife Agencies said an aerial survey estimated a 25 percent increase in the species’ numbers over 2014 in their five-state habitat on the heels of a 20 percent increase the prior year. In 2012, there had been a 50 percent decrease.

Some of the conservation efforts involved oil and gas, electric utilities and wind farm developers changing their practices and paying into a fund that then paid landowners to change their operations.

“For us, it’s a vindication of the tremendous effort put forth” by companies to improve habitat, said Bill Van Pelt, WAFWA grassland coordinator. “The rain had a big part in it. At the same time, you can’t ignore we had 180 companies enroll whose activity encompasses 12 million acres. You have oil and gas companies not drilling 24 hours a day during mating season and altering their siting based
on where the prairie-chickens are.”

Landowners also enrolled in government programs that helped fund conservation efforts addressing habitat.

Conservation groups that have been in the fight since 1995 strongly disagree with the decision.

“This decision turns the Endangered Species Act on its head by concluding the Fish and Wildlife Service should have given the benefit of the doubt to the oil and gas industry, rather than a species that has seen its habitat and populations vanish,” Noah Greenwald, endangered species director at the Center for Biological Diversity, said in a written statement.

“Christmas came early this year for the oil and gas industry with a court decision specially gift-wrapped for them straight out of Midland, Texas.”