November 01, 2013

Lesser conservation: The U.S. Fish & Wildlife Service proposes threatened listing for the lesser prairie-chicken, then guts it

Kalyani Robbins

The lesser prairie-chicken (Tympanuchus pallidicinctus) is a rare grouse dressed in alternating brown and off-white bands and colorful embellishments for mating, with known habitat in Colorado, Kansas, New Mexico, Oklahoma, and Texas. The species has experienced a rapid population decline as a result of human development, especially agriculture, and is down to only about a tenth of its prior habitat range. Because of this increasing vulnerability, and under pressure to list the species as a result of a massive listing-progress settlement in 2011, the U.S. Fish and Wildlife Service (FWS) proposed threatened status in December 2012. 77 Fed. Reg. 73,828 (Dec. 11, 2012). After a comment period on this initial proposal, the FWS proposed the listing again in May 2013, this time adding a “special 4(d) rule” limiting the extent to which the lesser prairie-chicken is to be protected from “take” under section 9 of the Endangered Species Act (ESA). 78 Fed. Reg. 26,302 (May 6, 2013).

The ESA only prohibits take of endangered species but allows the FWS (and the National Oceanic and Atmospheric Administration, for marine species) to publish rules under section 4(d), 16 U.S.C. § 1533(d), applying the same take restrictions to threatened species. Section 4(d) rules are not very common with FWS listings because the agency has a universal 4(d) rule extending the take prohibition to all threatened species absent a special 4(d) rule limiting the scope of that protection. Thus, special 4(d) rules tend only to reduce the protection from take. Their use is especially controversial due to the conservation purpose the ESA imposes on the use of section 4(d).

Special 4(d) rules became best known in the context of the polar bear, when the FWS was pressured to list the species based on habitat loss resulting from climate change but included a special 4(d) rule providing that actions contributing to climate change (greenhouse gas emissions) would not qualify as takes because the causation was too remote. While many scholars agree that the ESA is not the right tool for climate mitigation, this step incensed the sizable public-interest community wishing to pursue this mitigation avenue.

The lesser prairie-chicken 4(d) rule, which is still open for comments at the time of this writing, excludes two circumstances from the application of take protections to the species. The first is for certain conservation programs that provide a net benefit to the species. The second, which is of greater concern to the conservation community, provides a broad exemption for agricultural activity, so long as certain conservation practices are being followed. The problem with this exemption is that, in spite of requiring enrollment in a conservation program, it does not stop the further use of lesser prairie-chicken habitat. The expansion of agriculture into its habitat has been the primary downfall for the species.

Another odd aspect of this 4(d) rule is that it is completely unnecessary in order for the projects to which it applies to go forward, at least assuming they would not jeopardize the continued existence of the species. Private parties seeking permission to take members of a listed species may apply for an incidental take permit under section 10 of the ESA. As long as their project will not jeopardize the species, and with an adequate habitat conservation plan that mitigates the take, the permit will issue. This 4(d) rule takes agricultural activity out of the usual process for incidental take—a process that was designed to protect imperiled species.

As for oil and gas development, which also faces conflicts with the lesser prairie-chicken, the 4(d) rule does not help this industry at all. Indeed, it might make it more difficult to obtain incidental take permits, given that the broad agricultural exclusion will be pushing the species closer to the brink of extinction. In addition to being prime agricultural land, the chicken’s grassland habitat overlays some desirable oil deposits, some of which are already under development. The threatened listing, along with the 4(d) rule that gives away more incidental take than the bird can absorb, will place the oil and gas industry in a tight spot with respect to development in the region.

In a desperate scramble to survive the listing, the oil industry has proposed a “habitat exchange” program, in which it would restore habitat for the lesser prairie-chicken in one area in exchange for being allowed to destroy its habitat in an area desired for oil and gas development. While the industry was able to get one environmental organization on board (likely because some of the more pragmatic environmentalists believe in allowing some harm to prevent what they fear will be even greater harm otherwise), wildlife organizations oppose the deal, taking the position that none of the remaining cramped habitat should be damaged at this point. And clearly the exchange itself would require substantial take, assuming the destroyed habitat was occupied.

As of this writing it remains to be seen what will actually happen with the listing or the 4(d) rule, but one thing is clear: it is not likely to be good news for oil and gas. Even wind, which is more environmentally friendly than oil and gas, will suffer, as some of the desirable areas for wind development are also on lesser prairie-chicken habitat. Agriculture, on the other hand, appears poised to march on.

Kalyani Robbins

Kalyani Robbins is associate professor of Law at the University of Akron.