Lesser prairie-chickens may return to ESA; public comment sought

The lesser prairie-chicken could be headed to lists under the Endangered Species Act, following a U.S. Fish and Wildlife Service proposal that includes two distinct population segment boundaries.

The service announced May 26 the boundary distinction is based on bird projections with the southern region in more dire shape than the northern one.

The southern distinct population includes populations in eastern New Mexico and across the southwest Texas Panhandle. Birds in that region would be considered endangered, as the service believes the birds there are in danger of extinction. Birds in the northern region, which includes southeastern Colorado, south-central to southwest Kansas, western Oklahoma and the northeast Texas Panhandle, would be classified as threatened. Birds there are projected to become endangered in the foreseeable future.

The service is proposing a rule ESA’s Section 4(d) for the northern boundaries that would tailor protections for the bird. The 4(d) rule proposed would except any “take” of the bird associated with the continuation of routine agricultural practices or the implementation of prescribed fire. The ESA defines take as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to engage in any such conduct.”

Aerial survey results from 2012 through 2020 estimate a five-year average lesser prairie-chicken population of 27,384 across the five-state region. The bird count was estimated at about 34,400 in October 2020 in a report compiled for the Western Association of Fish and Wildlife Agencies.

“The loss of America’s native grasslands and prairies of the southern Great Plains has resulted in steep declines for the lesser prairie-chicken and other grassland birds,” said Service Regional Director Amy Lueders. “For more than two decades, the service has supported and encouraged our partners’ voluntary efforts to conserve the lesser prairie-chicken. Together, we have made great strides in conserving key habitat and raising awareness about threats to the lesser prairie-chicken, but we still have much work to do to ensure we have viable lesser prairie-chicken populations. The service will continue to closely partner with diverse stakeholders across the lesser prairie-chicken’s range to restore this iconic species.”

The service, in a news release, said it plans to continue to work with partners and private landowners to develop voluntary conservation agreements that will protect the bird and the native grasslands on which it depends, while assuring that ranching, agriculture and other activities can continue regardless of whether the species is listed. To date, millions of acres of land have enrolled in voluntary conservation measures across the lesser prairie-chicken’s range.

Wayne Walker, principal with Common Ground Capital, expressed disappointment but was not surprised. The firm and private landowners have worked over the past nine years to successfully develop landscape-scale, market-based conservation strongholds for the lesser prairie-chicken that both the USFWS and state wildlife agencies say the bird needs.

“Unfortunately, the Western Association of Fish and Wildlife Agencies effort favored control of turf over effective conservation collaboration— which thwarted effective conservation that the lesser prairie-chicken actually needed,” Walker said. “So while we are disappointed with the announcement, we are by no means surprised.”

The bird requires large, intact strongholds and requires them now, he said.

“Our private landowner partners are poised to provide this land and we are ready to provide it now. Time will tell if the proposed listing decision stays the same between now and next May.  Either way, we are ready to help and execute on what the lesser prairie-chicken needs most. Our ranchers can provide strategic, accountable conservation gains that includes the last of the best habitat for these birds.”  

Lawmakers oppose listing, potential restrictions

U.S. Sens. Jerry Moran and Roger Marshall, both Kansas Republicans, both expressed their opposition to the listing of the bird as endangered in news releases.

“The Biden administration’s proposal to list the lesser prairie-chicken under the Endangered Species Act threatens to harm farmers, ranchers, energy producers and rural communities,” Moran said. “Kansas and surrounding states invested millions of public and private dollars in conservation efforts in the habitat area, resulting in the bird’s population more than doubling. The decision to propose a listing despite voluntary conservation efforts that continue to successfully restore habitat area removes any incentive for similar locally driven efforts to occur for their species. This proposal will result in less wildlife conservation in the future, not more.”

Marshall said it was example of the Biden administration’s government overreach approach and heavy-handed regulation as opposed to a cooperative approach.

“Instead of working with landowner to promote continued voluntary efforts the service is instead implementing a listing that limits landowner autonomy and opportunity,” he said.

Ultimately if the service goes through with the listing, Marshall said, it will hurt the state’s economy, hinder oil and gas independence, increase utility costs and prevent the development of renewable energy in prime western Kansas locations.

Moran and Marshall had both sent a letter to U.S. Secretary of Interior Deb Haaland urging her not to list the bird on the list. Marshall said the service is considering an exception that would allow for routine agricultural practices and prescribed fire to continue in Kansas.

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U.S. Rep. Tracey Mann, R-KS, who serves the First District that includes the habitat area and is a member of the House Agriculture Committee, also voiced his concern about the proposed rule.

 “The U.S. Fish and Wildlife Service commended the voluntary efforts in Kansas, including 40,000 acres of habitat conservation, but ultimately decided that the federal government is better equipped to address these local areas,” Mann said in a news release. “Over the last several years, our farmers, ranchers, energy sector, and other private landowners have enacted voluntary conservation efforts, and the lesser prairie-chicken’s population has risen in Kansas. This is yet another federal overreach that will disrupt industries that are vital to our economy. I will remain vigilant as the rulemaking process begins and want to ensure all Kansas stakeholders are heard and not negatively impacted by any federal designation.”

The Kansas Livestock Association opposes listing the lesser prairie-chicken as a threatened or endangered species under ESA, according to a news release. It supports voluntary, incentive-based efforts as a means to preserve and enhance the population of lesser prairie chickens in Kansas. Furthermore, KLA supports the inclusion of grazing lands with similar incidental take protections as those afforded cultivated lands in any 4(d) rule. 

“It appears the FWS is playing politics with what should be a science-based listing,” said KLA CEO Matt Teagarden. “The agency’s previous attempt to list the species was struck down by a federal court for ignoring voluntary conservation efforts. It appears once again, the agency has ignored voluntary conservation efforts that have helped double the species population without a government mandate.”

Public comment sought

The lesser prairie-chicken became a candidate for the listing under the ESA in 1998 and was listed as a threatened species in 2014. The listing was vacated in 2015 following a lawsuit. In September 2016, the service received a petition to list the bird as endangered, and in November 2016 made a substantial 90-day petition finding that listing may be warranted.      

The service has submitted the draft rule to the Federal Register. For a copy of the proposed rule and Species Status Assessment, visit www.fws.gov/southwest/es/LPC.html.

Mann is encouraging all stakeholders who are affected by the proposed rule to provide comments to the Fish and Wildlife Service, which is seeking feedback. Comments must be submitted within 60 days of publication on the register. Information on how to submit comments will be available at www.regulations.gov by searching under docket number FWS-R2-ES-2021-0015. Information on how to request a hearing is also included in the notice. The service will also conduct two public hearings to gather public comments on the listing proposal. A public information session is planned for 5 to 6 p.m. Central time, July 8, followed by a public hearing from 6:30 to 8:30 p.m. To register for the hearing, visit https://zoom.us/meeting/register/tJcvce6tqj0pE9R9F2LsoQFVjNRv8kooxeKJ. A similar format is planned on July 14 with an informational session from 5 to 6 p.m., Central time with a public hearing from 6:30 to 8:30 p.m. To register for this hearing, visit https://zoom.us/meeting/register/tJwrfu-hqzoiG9I2Yr2hqxLpPxSu9YrLZzu5.

Dave Bergmeier can be reached at 620-227-1822 or [email protected].