When Protection Doesn’t Protect

Lesser prairie-chicken listing contains massive loopholes

This is the story of a little-known bird in great need of help. The Fish and Wildlife Service (FWS) first placed the lesser prairie-chicken on its “candidate list” for protection under the Endangered Species Act (ESA) in 1998. A candidate species is one that FWS has determined meets the definition of an endangered or threatened species, but cannot be formally protected under the ESA due to lack of funding and other priorities. The years went by, and the bird remained in limbo as a candidate species, even as threats to its existence continued to increase. Finally, after wait-listing the bird for 15 years (and after legal pressure from conservation groups), the FWS listed the lesser-prairie chicken as a threatened species in March of this year.

Unfortunately, it was a hollow victory. While lingering in administrative purgatory for 15 years, the lesser prairie-chicken population declined from 35,000 birds in 2012 to only 17,616 in 2013 — that’s a loss of 50% in only one year! Historically, the birds ranged widely across Texas, Oklahoma, Kansas, Colorado, and New Mexico, but today they are only present in about 16% of this historic range. Given these glaring statistics, one would think the lesser prairie-chicken meets the textbook ESA definition of endangered: “in danger of extinction in all or a significant portion of its range.” But despite the overwhelming evidence, FWS decided to list the lesser prairie-chicken as threatened, a lesser degree of protection, along with a so-called “special 4(d) rule” that would all but cancel out many ESA protections.

This rule means that the listing decision contains, in the words of one of Defenders’ senior attorneys, “a loophole so big you could drive a truck through it.” ESA listing is meant to protect a species from serious threats. But thanks to this 4(d) rule, many of the primary threats to the species and its habitat would be allowed to continue, including agriculture, livestock grazing, oil and gas activities, and development.

So how can officials claim that this listing decision will help? Instead of depending on the protections offered by the ESA, this listing relies on voluntary conservation efforts that have no proven track record of actually preventing harm to species. After more than a decade on a waiting list, and with half its population already gone, this imperiled species deserves better. So we’ve joined forces with our conservation allies to challenge the listing in court. We are asking a federal judge to order the FWS to reconsider its decision to list the lesser prairie-chicken as threatened instead of granting it the endangered status it so clearly needs. We are also seeking to have the 4(d) rule invalidated to close the loopholes in this listing and grant the lesser prairie chicken real protection from the activities that threaten its survival. Hopefully, we can help keep this rare and beautiful bird from teetering on the edge of extinction. We’ll keep you updated as the case moves forward.

Anne Russell Gregory is the Conservation Law Coordinator for Defenders of Wildlife