Lawsuit chides 'inaction' in saving rare bird threatened by oil and gas in Permian Basin

A lawsuit alleged the federal government failed to protect a dwindling species of chicken in the deserts of southeast New Mexico despite a proposal it receive the highest government protections.

The lesser prairie chicken was proposed last year by the U.S. Fish and Wildlife for protections in two regions known as “distinct populations segments” (DPS).

That was in June 2021, and the proposal was required to be finalized in June of this year, the lawsuit argued, but the Fish and Wildlife Service has yet to do so.

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The southern DPS encompassed parts of southeastern New Mexico and West Texas, where the chicken was proposed for an “endangered” listing under the Endangered Species Act – the highest class of protections that indicates extinction is imminent.

The northern DPS, covering the northern Texas panhandle, along with parts of Colorado, Oklahoma and Kansas was proposed for “threatened” which entails less strict protections but indicates endangered conditions are likely to occur soon.

Protection under the Endangered Species Act (ESA) could restrict development on lands known as habitat of the species, impacting local industries like oil and gas development and agriculture in southeast New Mexico, which sits in the Permian Basin oilfields – the most active fossil fuel region in the U.S.

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Michael Robinson with the plaintiff Center for Biological Diversity said such actions were needed to conserve an animal “iconic” to the region that once numbered in the hundreds of thousands throughout the American West.

Today, the lesser prairie chicken’s southern DPS was believed to only host a couple thousand birds, with threats mostly coming from large-scale development that restricted the wide-open plains the chickens need to breed and thrive.

They’re known for unique mating practices require large swaths of undisturbed lands, that see chickens gather in groups known as leks, usually in the spring, where they stomp their feet and warble to attract mates.

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“It’s haunting to think that videos of the lesser prairie chicken’s intricate dance may be all that’s left for future generations if these fascinating birds don’t get the protections they’ve been promised,” Robinson said.

“The oil and gas industry has fought for decades against safeguards for the lesser prairie chicken, and the Fish and Wildlife Service is late issuing its final rule. The agency has slow-walked every step, and these imperiled birds keep losing more habitat.”

The first petition to list the chicken as endangered came in 1995 from the Biodiversity Legal Foundation, but it wasn’t listed as threatened until 2014 and that designation was subsequently overturned via a federal court case in Midland, Texas.

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The Center petitioned again in 2016 to list the chicken, followed by a lawsuit and a series of public hearings that led to the latest proposal.

Oil and gas worries about impacts from land restrictions

The oil and gas industry and its supporters again opposed the listing, citing potential economic harm brought on by the land restrictions that would be imposed.

In its submitted comments, the New Mexico Oil and Gas Association (NMOGA) argued the listing would increase costs for its members – fossil fuel companies throughout the state – as they develop energy in the Permian Basin.

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“The proposed rule will have significant impact on NMOGA’s members’ business planning and operations by increasing operational costs, delaying project timeframes and limiting or precluding operations in certain areas,” read NMOGA’s comments in the Federal Register.

Oil and gas in New Mexico accounts for more than a third of the State’s budget and was estimated this year to bring a $2.5 billion surplus in the state’s coffers.

That’s economic development NMOGA warned could be stymied by tighter environmental regulations like listing the chicken as endangered.

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“Development of this resource, including substantial federal minerals, has resulted in significant revenues for New Mexico,” read NMOGA’s comments.

NMOGA also argued lesser prairie chicken population were increasing in the last several years, citing data from the Western Association of Fish and Wildlife Agencies (WAFWA) that reported total chicken populations grew from 15,913 in 2013 to 30,461 in 2021.

That data also showed a decline of about 4,000 birds from 2020’s total of 34,568 lesser prairie chickens and did not distinguish between the northern and southern DPS.

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Opposition to the listing also came from the Eddy County Commission, which argued private landowners including oil and gas operators already enacted conservation practices intended to conserve the bird.

“These commitments have proven successful, as reflected by recent surveys of the (lesser prairie chicken), which show their numbers are on the increase,” read a letter signed by all five Eddy County Commissioners.

But in its lawsuit, the Center for Biological Diversity argued the gains in population reported by WAFWA were inadequate to truly restore the bird and overcome a decades-long decline in its numbers, referencing a March 2021 assessment by Fish and Wildlife Service that said all of the regions where the bird dwells were at risk of extinction.

Additional federal action was needed, the suit read, to truly reverse the bird’s path to extinction.

“The Service found that if population declines for the lesser prairie chicken continue as projected, there is an increased risk of, ‘losing one or more representative ecoregions’ for the birds,” read the lawsuit.

Adrian Hedden can be reached at 575-628-5516, achedden@currentargus.com or @AdrianHedden on Twitter.

This article originally appeared on Carlsbad Current-Argus: Lawsuit chides 'inaction' in saving rare bird threatened by oil and gas