Listing Litigation: Courts Rule on Two Permian Basin Species

On February 29, 2016, the U.S. District Court for the Western District of Texas rejected the U.S. Fish and Wildlife Service's (Service) request to reinstate federal Endangered Species Act (ESA) protections for the lesser prairie chicken (Tympanuchus pallidicinctus).  Permian Basin Petrol. Ass 'n v. Dep 't of the Interior, No. 7:14-CV-50 (W.D. Tex. Feb. 29, 2016.).  In September 2015, the court ruled on a challenge brought by the Permian Basin Petroleum Association and four New Mexico counties and vacated the final rule listing the lesser prairie chicken as threatened under the ESA.  The court concluded that the Service failed to properly evaluate the Western Association of Fish and Wildlife Agencies Range-wide Plan in accordance with the Service’s own Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE Policy).  Rather than appeal the September 2015 decision, the Service filed a motion to amend the judgment requesting that, instead of vacating the decision, the court remand it to the agency for further review.  Alternatively, the Service asked the court to limit its ruling to the Permian Basin region of Texas and four counties in New Mexico.  The court rejected both requests, concluding that the evidence presented by the Service was speculative, and that the Service should not be given another chance to list the species because the analyses behind its original decision were insufficient and invalid.  The lesser prairie chicken therefore remains unlisted and unprotected by the ESA, until the Service either prevails on appeal (should they choose to appeal) or the Service completes a new rulemaking.

In another PECE Policy lawsuit arising out of the Permian Basin, on March 1, 2016, the U.S. Court of Appeals for the District of Columbia Circuit affirmed a lower court decision upholding the Service’s decision not to list the dunes sagebrush lizard (Sceloporus arenicolus).  Defenders of Wildlife v. Jewell, No. 14-5284 (D.C. Cir. Mar. 1, 2016).  In 2010, the Service published a Withdrawal of the Proposed Rule to List Dunes Sagebrush Lizard based largely on a voluntary conservation plan established by the state of Texas following the publication of the proposed rule.  The Texas plan supplemented existing federal and state conservation efforts in New Mexico.   Defenders of Wildlife and the Center for Biological Diversity challenged the Service’s no-list determination, alleging that the Service’s finding with regard to the sufficiency of the Texas plan was not made in accordance with the PECE Policy.  The district court ruled that plaintiffs had failed to demonstrate that the Service's findings were arbitrary and capricious and granted the Service’s motion for summary judgment.  The D.C. Circuit affirmed the lower court’s decision, concluding that the Service’s reliance on the Texas plan was reasonable.

  • Brooke M. Marcus

    Brooke Marcus is a natural resources lawyer focused on assisting the renewable energy sector with maintaining compliance with environmental laws. She is go-to counsel for matters involving the Endangered Species Act (ESA), the ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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