Endangered Species Law & Policy

On March 29, 2025, the U.S. District Court for the Western District of Texas (District Court) vacated the Endangered Species Act (ESA) special 4(d) rule for the northern distinct population segment (DPS) of the lesser prairie-chicken (LEPC). The 4(d) rule had prohibited, in most circumstances, “take” of the species’ northern DPS. Plaintiffs challenged the 4(d) rule in a number of ways, including on grounds that the U.S. Fish and Wildlife Service (Service) should have considered the economic impact of the 4(d) rule prior to its promulgation. As a result of the vacatur, it appears that, for the time being, no "take” prohibitions apply to the northern DPS of the LEPC.

The District Court began its order by explaining that the recent decision of the U.S. Supreme Court in Loper Bright Enterprises v. Raimondo to overturn Chevron deference, meant that the District Court was under no obligation to defer to the Service’s interpretation of ESA section 4(d) and was free to undertake a fresh statutory interpretation of ESA section 4(d).

ESA section 4(d) states that when the Service lists a species as threatened, it must issue “such regulations as [it] deems necessary and advisable for the conservation of the species.” Section 4(d) also allows the agency to prohibit with respect to threatened species any act prohibited under ESA section 9(a)(1). The Service has previously interpreted ESA section 4(d) as allowing the Service either to issue prohibitions the agency deems necessary and advisable or to, instead, rely on the prohibitions enumerated by ESA section 9(a)(1). Ultimately, the District Court held that ESA section 4(d) requires the Service to conduct a necessary and advisable determination for every proposed prohibition promulgated under ESA section 4(d) and that the prohibitions in ESA section 9(a)(1) are the outer bounds of what such prohibitions may entail.

The District Court then turned to the question of whether a necessary and advisable determination under ESA section 4(d) requires a consideration of the economic costs of imposing prohibitions relative to threatened species. The District Court noted that, unlike the ESA’s provisions relating to listing determinations, nothing in the statute prohibits the Service from considering the economic implications of issuing ESA section 4(d) rules. Because the Service failed to consider the economic impacts associated with the LEPC 4(d) rule, the District Court vacated the rule.

After vacating the rule, the District Court went on to state that the Service should have conducted an analysis under the Regulatory Flexibility Act to describe the impacts of the rulemaking on small entities and determine whether less burdensome alternatives should be considered.

The case is styled Kansas Natural Resource Coalition v. U.S. Fish and Wildlife Service. The Service has not yet indicated whether it will appeal the decision.