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States File Suit Against FWS for Lesser Prairie Chicken ESA Designation

States File Suit Against FWS for Lesser Prairie Chicken ESA Designation
Kansas, Oklahoma and North Dakota attorney generals oppose FWS designation of lesser prairie chicken as 'threatened'

Kansas and North Dakota are the latest states to join a three-state lawsuit brought by Oklahoma Attorney General Scott Pruitt challenging the process by which the U.S. Fish and Wildlife Service decided to list the lesser prairie chicken as threatened.

Kansas Attorney General Derek Schmidt formally filed papers for Kansas to join the suit last week; North Dakota Attorney General Wayne Stenehjem has also joined.

Schmidt says the suit challenges the use of a process often called "sue and settle," by which private interest groups can sue federal agencies and then enter into consent decrees that compel the agencies the take certain actions.

Kansas, Oklahoma and North Dakota attorney generals oppose FWS designation of lesser prairie chicken as 'threatened' (NRCS photo)

One of those so-called "citizen suits" led to the federal court order that ultimately forced the U.S. Fish and Wildlife Service to make the March 27 decision that listed the lesser prairie chicken as threatened under the Endangered Species Act, Schmidt claims.

The states challenging the process argue that consent decrees cannot be used to ignore or circumvent clear provisions of federal statutory law. The lawsuit alleges that FWS violated their lawful obligation to make ESA listing decisions "solely on the basis of the best scientific and commercial data available."

The suit says the FWS also failed to adhere to the agency's own regulations and guidelines in the rulemaking process.

Impacts on farmers and ranchers
Tom Buchanan, president of the Oklahoma Farm Bureau, shared in an April 4 commentary that the listing could "impose unnecessary federal restrictions on agricultural producers, limiting their rights to develop their private properties."

Under the "threatened" designation, if farmers' lands fall into the designated habitat area – which the FWS says 90% of the LPC habitat is private land – then it would be unlawful to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" a lesser prairie chicken.

Harm is defined to include significant habitat modification or degradation, if it results in the death or injury to a lesser prairie-chicken by significantly impairing essential behavior patterns, including breeding, feeding or sheltering.

Related: FWS Questions and Answers regarding the Lesser Prairie Chicken ESA Designation

The lesser prairie-chicken currently occupies a five-state range that includes portions of Colorado, Kansas, New Mexico, Oklahoma and Texas.

Though the FWS threatened designation does include a special rule to exempt conservation practices performed through the Western Association of Fish and Wildlife Agencies’ Lesser Prairie-Chicken Range-wide Conservation Plan and other Natural Resources Conservation activities, Buchannan says the designation isn't needed.

A better option, he said, would be fostering an improved partnership between private landowners and state agencies.

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