As they do every year, male lesser prairie-chickens gathered this Spring on the 48,000-acre Gardiner Angus Ranch in Ashland, Kansas for their ritual mating dance to attract females. The Gardiner Ranch has some of the best remaining patches of open prairie in the central and southern plains and the Gardiners and a number of other ranchers have agreed to conserve the habitat they own by agreeing to work with Common Ground Capital, a private company, to establish a “conservation bank” on their property.The bird, whose population according to scientists. has plummeted by at least 90 percent since 1900, is under serious threat, as most of its native grassland habitat has been lost or degraded, primarily by energy development and agriculture. Privately-owned ranches, like the Gardiners’, are critical to the long-term survival of the species, because over 90 percent of the bird’s remaining habitat is on private land.
Despite the fact that there is little disagreement that the lesser prairie-chicken is in trouble, there is a raging legal and policy debate underway about what to do about it. The focus is whether the declining bird should be listed and protected under the federal Endangered Species Act, and what conservation measures should be required of developers that impact the species’ habitat. The outcome of the debate will have implications for many other imperiled species.
Historically, the lesser prairie-chicken was found across a huge expanse of prairie in the central and southern plains. Today, the birds are limited to two small distinct populations, a northern population in parts of Kansas, Colorado, Oklahoma, and the Texas Panhandle and a scarcer southern population in west Texas and New Mexico. In 2022, the U.S. Fish & Wildlife Service listed the northern distinct population segment as threatened and the southern distinct population segment as endangered under the Endangered Species Act.
The endangered southern population received automatic statutory protections from “take,” including habitat alterations that harm the species. “Take” has a broad definition in the ESA and includes harming or killing a species by virtually any means. The threatened northern population was protected by a species-specific rule adopted under section 4(d) of the ESA that provided more flexibility to ranchers and other land uses than the more absolute protection that the ESA provided for the endangered southern population. For both the endangered southern distinct population segment and the threatened northern population segment, the ESA authorizes the issuance of so-called “incidental take permits” for activities that can result in take and requires mitigation from the permittees to offset the harm their activities cause. Mitigation can include purchasing conservation “credits” from private landowners like the Gardiners.
Despite the flexibility afforded by the special 4(d) rule for the northern population and the availability of permits to authorize activities that could harm the species in both regions, the oil and gas industry and the states of Texas, Oklahoma, and Kansas immediately filed a lawsuit challenging the listing of both populations of lesser prairie-chicken in federal court in the Western District of Texas. The case is still being briefed and there is no decision.
In the meantime, a recent decision in a separate but related case has raised unnecessary uncertainty about the degree to which the threatened northern population of lesser prairie-chickens is protected under the law, a question that affects private landowners, ranchers, and energy companies in the region.
On March 29, the federal district court in the Western District of Texas (the same court that is considering the listing decision in the separate case) issued an opinion in Kansas Natural Resource Coalition v. U.S. Fish and Wildlife Service, striking down the species-specific 4(d) rule that the U.S. Fish and Wildlife Service had promulgated when it listed the northern distinct population segment as threatened. The agency has not announced whether it plans to appeal the decision.
The court ruled that the 4(d) rule for the northern threatened population was invalid, because the Service failed to consider the economic impacts of the rule before finalizing it. The U.S. Fish & Wildlife Service argued that the 4(d) rule is a part of the listing action and longstanding agency interpretation and court precedents established that economic effects are not considered in decisions to list species. The court concluded the agency interpretation receives no deference under Loper Bright and vacated the 4(d) rule. But the effect of the ruling on protection of the northern distinct population segment is far from certain.
The unresolved question is whether the threatened northern distinct population segment is currently covered by the ESA’s prohibition on “take,” even without the special 4(d) rule that has been vacated for now by the court. The answer will determine whether energy companies and others will need to obtain an incidental take permit before developing land that could harm the prairie-chicken, and whether private ranchers will be able to benefit from selling conservation credits to those energy developers for agreeing to protect the birds’ habitat forever. We believe the answer is yes, because of something called the “blanket 4(d) rule.”
In 2024, the U.S. Fish & Wildlife Service reinstated the “blanket 4(d) rule,” which had been in place for 40 years but was temporarily repealed in 2019 by the previous administration. The blanket rule applies all of the statutory protections of the ESA, including the take prohibition, to threatened species, unless there is a species-specific 4(d) rule in place for the species. 50 CFR Ꞩ 17.31(a). The prairie chicken was listed in 2022, when the blanket rule was temporarily repealed and, at the time, the take protections for the northern population segment were supplied by the special 4(d) rule. The blanket rule applies now, however. On its face, the blanket 4(d) rule applies to threatened species for which there is no species-specific 4(d) rule in effect, such as the lesser prairie-chicken since the chicken’s special 4(d) rule has been invalidated. The regulation says, “all of the provisions of § 17.21 (for endangered species of wildlife) . . . apply to threatened species of wildlife, unless the Secretary has promulgated species-specific provisions.” 50 CFR Ꞩ 17.31(a).
In the Preamble to the reinstatement of the blanket rule, the Service outlines the scope of coverage and states, “For species that are currently protected by species-specific 4(d) rules, reinstating the “blanket rules” will have no effect because the species will continue to be protected by the previously promulgated species-specific 4(d) rules.” 89 Fed. Reg. at 23,928 (April 5, 2024). The Preamble emphasizes the importance of coverage by a 4(d) rule, whether the blanket rule or a species-specific version: “Reinstating the ’blanket rule’ option also ensures there is never a lapse in threatened species protections.” 89 Fed. Reg. at 23,921 (April 5, 2024).
Throughout the Preamble, the Service emphasizes its responsibility under Section 4(d) of the act to issue such regulations as the agency deems necessary to provide for the conservation of listed species. E.g., 89 Fed. Reg. at 23,922 (“Thus, we must determine what regulations, if any, are necessary and advisable to provide for the conservation of the species.”). “This approach of applying section 9 prohibitions to threatened species under the ‘‘blanket rules’’ assists our goal of putting in place protections that will both prevent the species from becoming endangered and promote the recovery of species.” 89 Fed. Reg. at 23,923. Although the Preamble does not directly address the possibility that a species-specific 4(d) rule could be invalidated by a court, it would be wildly inconsistent with the express language of the regulation and the agency’s stated goals to conclude that the lesser prairie-chicken’s northern distinct population segment, listed as threatened because it is likely to become endangered in the foreseeable future, has no protections at all after the court’s ruling.
While the agencies, lawyers, courts, and interested public continue to debate the future of the lesser prairie-chicken, the birds will do what they have done for millennia. They will congregate at predetermined locations on patches of prairie on the Gardiner Angus Ranch and other locations to welcome spring in their ritual dances. Whether they, and dozens of other species on the brink of extinction make it, depends on how well we steward private land, and the availability of incentives to private landowners to keep virgin prairies intact. The Gardiner Ranch and other conservation bank properties contain high-quality habitat that the birds must have to persist, and there is a framework in place to compensate the ranchers for maintaining that habitat for the birds. The Endangered Species Act is the lesser prairie- chicken’s safety net and its best shot at survival.
