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Focus on Regulation

Western District Texas Court Grants Summary Judgment for PBPA Plaintiffs and Vacates Lesser Prairie Chicken Listing Decision

Prairie chickenIn a first-of-its-kind ruling and a significant victory for state wildlife agencies, landowners, ranchers, farmers, and the oil and gas industry in Texas, New Mexico, Oklahoma, Kansas, and Colorado, the U.S. District Court for the Western District of Texas, in Permian Basin Petroleum Association (PBPA) et al. v. Department of the Interior (DOI), et al., granted summary judgment in favor of PBPA and vacated the U.S. Fish and Wildlife Service (FWS) rule listing the lesser prairie chicken (LPC) as threatened under the Endangered Species Act (ESA).  In its September 1, 2015 opinion, the Court concluded that the decision to list the LPC was arbitrary and capricious under the Administrative Procedure Act (APA) and that the agency failed to properly apply its Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE Policy) to conservation efforts already undertaken on millions of acres across five states to improve habitat for and diminish threats to the LPC.  Under the LPC Range-wide Conservation Plan, initially approved by FWS, more than 180 oil and gas, pipeline, electric transmission and wind energy companies have enrolled more than 14 million acres in conservation agreements to avoid, minimize, or mitigate impacts to the LPC from their operations. In the process, the industry participants in the Range-wide Plan have committed $45.9 Million in enrollment and impact fees to cover off-site mitigation actions for unavoidable impacts and conserve habitat.  Earlier this year, the Western Association of Fish and Wildlife Agencies, which oversees the conservation efforts under the Range-wide Plan, reported a 25 percent increase in the LPC’s population from 2014 to 2015, in part a result of industry’s conservation efforts.

The Western District of Texas decision is the first time a court has vacated an ESA listing decision on the grounds that FWS violated the APA by not properly evaluating conservation efforts as required by the PECE Policy (in this case the substantial efforts committed to under the Range-wide Plan).  Although the government had requested remand without vacatur, the Court vacated the LPC listing rule in its entirety. The Court’s decision in PBPA v. DOI impacts landowners and businesses in the five states containing LPC habitat: Texas, New Mexico, Oklahoma, Colorado and Kansas.  The decision also will impact four other district court cases (in the Northern District of Oklahoma and in the District Court of the District of Columbia) that challenge the LPC listing decision but which have not yet proceeded to briefing.  The FWS has 60 days to decide whether to appeal the decision to the Fifth Circuit.

The lead Plaintiff in the lawsuit is PBPA, the largest regional oil and natural gas association in the United States, with more than 1,000 member companies that produce oil and gas in the Permian Basin. The Permian Basin, which includes west Texas and eastern New Mexico, is the most prolific oil-producing region in the United States and produces approximately 20 percent of the oil produced annually in the U.S.  Joining PBPA as co-plaintiffs are Chaves, Eddy, Lea, and Roosevelt Counties in eastern New Mexico. The counties contain significant portions of LPC range and significant amounts oil and natural gas development, agriculture and farming.