The fate of the lesser prairie-chicken, a bird native to the southwestern grasslands and prairies, hangs in the balance as a legal battle over its endangered species status unfolds. The species, which was formally listed under the Endangered Species Act (ESA) in late 2022, faces an uncertain future as a lawsuit challenging its listing continues to play out in the courts.
The lesser prairie-chicken, once widespread across Southeastern Colorado, Southwestern Kansas, Western Oklahoma, the Panhandle and South Plains of Texas, and Eastern New Mexico, now occupies a mere fraction of its historic range. Estimates suggest that its range has been reduced by as much as 90%, with population levels declining since at least the 1960s. This drastic reduction in habitat and population has led the U.S. Fish and Wildlife Service (FWS) to recognize two distinct populations of the bird: a southern population in New Mexico and Texas, and a northern population across Texas, Oklahoma, Colorado, and Kansas.
The ESA, the primary federal wildlife protection law in the United States, aims to conserve species facing extinction and the ecosystems they depend on. The FWS, along with the National Marine Fisheries Service, is tasked with identifying species for ESA protection. The agency can list a species or a distinct population segment of a species based on factors such as habitat destruction, overutilization, disease, or other natural or manmade factors.
In late 2022, the FWS listed the southern distinct population segment (Southern DPS) of the lesser prairie-chicken as endangered and the northern distinct population segment (Northern DPS) as threatened. However, the state of Texas filed a lawsuit in January 2023 challenging this decision, arguing that the FWS had misapplied its policy on distinct population segments and failed to consider ongoing conservation efforts.
Initially, the FWS defended its listing decision, but in a surprising turn of events, the agency has now asked the court to vacate the listing decision and dismiss the lawsuit. The FWS claims it identified a “serious default” in the listing decision, specifically that it failed to adequately justify and analyze the designation of two distinct population segments. The agency argues that the final listing decision did not sufficiently consider whether the gap in the species’ range would be significant.
Environmental groups seeking to intervene in the case disagree with the FWS’s assessment. They argue that the court cannot overturn the listing decision without first ruling on the merits of the case. The groups cite case law suggesting that courts should not grant a federal agency’s voluntary remand for vacatur without determining that the action has violated the law.
The outcome of this legal battle will have significant implications for farming and ranching operations in the areas where the lesser prairie-chicken is found. If the listing is vacated, these operations may face fewer regulatory burdens. However, if the listing stands, they will need to continue to comply with ESA protections for the species.
As the court considers the FWS’s request to vacate the listing decision, the future of the lesser prairie-chicken remains uncertain. The decision will not only impact the species but also the agricultural operations that share its habitat. The legal battle serves as a reminder of the complex interplay between wildlife conservation and agricultural interests, and the delicate balance that must be struck to protect both.