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Put Prairie-Chicken Rule Back in the Pot, Both Sides Say

A trio of conservation groups is suing to force full protection of the lesser prairie-chicken under the Endangered Species Act (ESA) while a trio of states and their allies are suing over the process that led to recently adopted measures to protect the bird.

Late last month the U.S. Fish and Wildlife Service (FWS) listed the lesser prairie-chicken as "threatened," a designation that is one notch below "endangered" status (see Daily GPI, March 28). In an unusual move, FWS relied upon a voluntary state-level plan applicable in range states Texas, New Mexico, Oklahoma, Kansas and Colorado to provide some protections for the bird while limiting impacts on industries such as oil and gas.

Interests on both sides are unhappy.

"Drought and habitat destruction are devastating the small remaining population of this magnificent grassland bird," said Jay Lininger, a senior scientist with the Center for Biological Diversity. "The unenforceable state-level plan and voluntary measures are too little, too late, and will not get traction fast enough to prevent extinction. The lesser prairie-chicken needs the full protection of the Endangered Species Act to stem the tide of habitat destruction."

Meanwhile, Oklahoma, Kansas and North Dakota, along with Domestic Energy Producers Alliance and Oklahoma Farm Bureau Inc. aresuing to challenge the process by which FWS decided to list the bird as threatened.

According to Kansas Attorney General Derek Schmidt, the lawsuit challenges the use of a process by which private interest groups can sue federal agencies and then enter into consent decrees that compel the agencies to take certain actions. It was a citizens lawsuit that led to a federal court order that ultimately forced FWS to make the decision that lists the lesser prairie-chicken as threatened under the ESA.

The states and their allies are arguing that FWS violated its statutory obligation to make ESA listing decisions "solely on the basis of the best scientific and commercial data available" and failed to adhere to the agency’s own regulations and guidelines in the rulemaking process.

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