Texas court weakens federal protections for lesser prairie-chicken

Can private ecosystem markets protect the lesser prairie-chicken’s habitat when federal regulation has either failed or may be overturned? 

That’s the question that the Lesser Prairie-Chicken Landowner Alliance has been trying to answer since 2021. The alliance is a landowner group focused on conserving grouse species in the Great Plains and Midwest, including the lesser prairie-chicken. Researchers estimate that the total population of lesser prairie-chickens—a ground-nesting species of grouse—has declined, mostly due to habitat loss, from millions to about 30,000 today, spread across five midwestern states.  

On March 29, a Texas court vacated the Endangered Species Act special 4(d) rule for the northern distinct population segment of the lesser prairie-chicken. Many landowners and oil and gas interests had chafed under the rules imposed under those designations.  The above photo is from Michael Smith.

That decision by the U.S. District Court for the Western District of Texas came in response to lawsuits challenging the U.S. Fish and Wildlife Service’s designation of the lesser prairie-chicken as a threatened species. The bird has been bounced off and on the protected-species list in recent years as the issue has become a political football. After lesser prairie-chickens were de-listed by the first Trump administration, the Biden administration re-listed them, but divided them into two populations, a northern one that was “threatened”—a lesser designation requiring fewer protective measures—and a southern one that was “endangered.” 

The Trump administration recently weighed in on May 7 with a request to remove it. One of its arguments for removing the federal protection was that there are already multiple state and private initiatives to protect it.  

In the March 29 ruling, the court agreed with the plaintiffs that the FWS should have considered economic costs when crafting the 4(d) rule, which prohibits or restricts activities that may harm threatened or endangered species or their habitats.  The FWS has not yet indicated whether it will appeal the decision, according to Nossaman LLP.   

Commendation for LPCLA

The Lesser Prairie-Chicken Landowner Alliance’s mission is “to save ranching, rural communities, water, and wildlife” by seeking to ensure that ranchers are paid fair market value for the multiple conservation services that grasslands and ranching provide to society. These services include clean air and water and healthy wildlife habitat.  

The alliance flips on its head the concept of “social costing,” developed by influential English economist A.C. Pigou. The idea behind social costing is that every economic activity, from farming to factories, produces “externalities”—harms or costs to the rest of society that are not included in the product’s purchase price, but should be. Social costing is widely cited by environmentalists to justify regulations. 

The LPCLA proposes that if destroying a habitat is a social cost, then preserving it is a benefit to society that ranchers should be paid for. It’s one example of what has been called ecosystems markets. Carbon markets, which seek to price in climate harms by incentivizing markets to pay for environmental benefits like reducing emissions, are another development of the ideas behind social costing. 

On April 24, the LPCLA received a special commendation from the Kansas Department of Commerce, presented by Lt. Gov. and Secretary of Commerce David Toland.  It named Kansas ranchers Mark Gardiner, Stacy Hoeme and 18 others. “These efforts by the Lesser Prairie-Chicken Landowner Alliance play a significant role in reversing the alarming loss of grasslands across the Great Plains, allowing our state’s ranchers to continue to effectively manage this natural resource, feed the world with real, high-quality protein, and support the economic vitality of rural communities.”

Harbinger of prairie health

Conservation entrepreneur Wayne Walker hopes that private interests will continue to work together toward that effort. He is a principal with Common Ground Capital LLC, which offers conservation credits, and CEO of LPC Conservation focused on prairie chickens. “Producers are great at organizing their operations, but they don’t get paid market rates for conservation,” Walker told High Plains Journal. “These things aren’t often talked about. If you’re a steward of habitat reserves, why isn’t someone paying you for that service?” Under CGC’s model, property owners sign long-term, market-based protective land easements that protect lesser prairie-chickens habitats in exchange for a prescribed revenue stream. 

“The prairie chicken really is a harbinger for prairie health,” Walker said. “We have to learn to pay for ecosystem services. We have now figured out what it actually costs with this model.” 

Government does have a role in setting fair third-party standards, Walker said, just as with other ecosystem markets. But regulation alone can often be heavy-handed and not responsive to market values.

“Regulators alone aren’t going to solve problems at a large enough scale,” he said. “Eco-system markets can be botched.” 

He points to a 12-year-old effort by the Western Association of Fish & Wildlife Agencies to price in impacts to prairie chicken habitats that under priced the cost of effectively mitigating impact to the LPC and to achieving its 10-year conservation goals.

“Mostly non-resident property owners took the programs mitigation dollars from energy industry impact fees, but they didn’t help the prairie chicken and didn’t make any meaningful progress towards their own self-stated goals,” he said. 

Could these habitat-protection easements and land-use restrictions eventually be passed on as property changes hands? “Yes,” Walker said. “But there is new evidence that these easements and land-use conditions do not negatively affect property values.”

David Murray can be reached at [email protected].