In the intervening days since Senior U.S. District Judge Robert Junell issued his ruling rolling back the listing of the lesser prairie chicken, confusion has run rampant.
A clearer picture has since emerged, although it might become murky once again when the U.S. Fish and Wildlife Service on Thursday asks Junell to modify his decision.
FWS plans to ask the judge to remand — rather than vacate — the bird’s listing as a threatened species back to the agency. That way, attorneys say, the agency will be able to correct the issues Junell found fault with.
If he’s unwilling to do that, FWS will ask the judge to limit what is effectively a delisting process to specific areas in the Permian Basin and the four New Mexico counties that filed the lawsuit resulting in the decision.
“Because the relief requested in this motion is necessary to avoid imminent and irreparable harms, and because the status of the lesser prairie-chicken listing decision has ramifications for cases pending in several other federal district courts, defendants respectfully request that the court expedite its consideration of this motion,” federal attorneys asked.
The request is being opposed by the plaintiffs, the Permian Basin Petroleum Association, an oil industry trade group, and the New Mexico counties of Chaves, Roosevelt, Eddy and Lea.
Those other lawsuits include one in federal court in Tulsa, Okla., filed by the Oklahoma attorney general’s office, which Kansas decided to join in with, as well as one filed by three environmental groups seeking to enhance the lesser prairie chicken’s listing to endangered.
“Both cases on are hold, pending a decision in Junell’s court in Texas,” said Defenders of Wildlife attorney Jason Rylander, who is on the case in federal court in Washington seeking to show the federal wildlife agency didn’t go far enough when it listed the bird as threatened. “Things are very much up in the air. As of now, the listing is vacated nationwide. FWS has asked the judge to reconsider the scope of the decision, and there has been no ruling to date.
“That has held up any final decisions by FWS on whether to appeal. The result is that all the other cases are essentially in limbo. If the ruling stands, those cases will be moot.”
Rylander’s response to a question concerning the status of the case he’s involved in lays out the situation, including a clear message that Junell’s decision had broader reaching effects than first thought.
Initially, there were mixed opinions as to if the decision only applied to Texas or if it affected all five states where the lesser prairie chicken can be found — Texas, Oklahoma, New Mexico, Colorado and Kansas. The vast majority of the birds can be found in Kansas.
Early on, the Kansas Farm Bureau had indicated the ruling might only apply to Junell’s Texas district.
KFB Legal Foundation attorney Mike Irvin said they went back to the attorneys representing them in the battle over the listing, and were told the decision essentially rolled back the listing.
FWS spokeswoman Lesli Gray agreed, saying the bird is still included on the threatened species list, but it has no official protections pending a ruling based on the Thursday hearing.
The agency might not know its status immediately, as the court could take the matter under advisement and issue a decision later.
“He could rule from the bench,” she said. “It’s up to him.”
The request to amend the decision, Irvin said, protects the wildlife agency’s right to appeal the decision if they get an adverse decision.
“If it’s denied, we anticipate it will be appealed,” he said.
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The judge’s decision rolling back the listing hasn’t prompted energy companies to flee the program designed to boost lesser prairie chicken numbers.
“We’ve only had one company that indicated it was going to back out,” said Jim Pitman, the conservation services director for the Western Association of Fish and Wildlife Agencies, which is handling mitigation efforts to boost bird numbers.
Although he wouldn’t identify the firm, he said he would consider it a medium-size firm.
Pitman said he thinks most of the companies enrolled, most of which are energy firms, will remain in the program. He said if the effort to boost the bird’s numbers fall flat, FWS likely will remain with the listing process or move it into the endangered category, which can carry more restrictive measures.