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SPOTLIGHT
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Prairie-chicken listing bypasses oversight

Published on -5/1/2014, 10:21 AM

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Last month, the Domestic Energy Producers Alliance joined with the state of Oklahoma in a legal battle with the U.S. Fish and Wildlife Service over a "sue and settle" -- an induced deadline to decide whether the lesser prairie chicken should be listed as "threatened" under the Endangered Species Act. In addition, the state of Kansas and the state of North Dakota have joined the battle.

DEPA is an alliance of 15 state and national oil and gas associations, including the Kansas Independent Oil & Gas Association, as well as a number of independent oil and gas producers, royalty owners and oilfield service companies.

The lawsuit carries serious implications not only for the individual private property rights of all Americans, but also for the future of our economy and energy independence in the United States.

The fight over "sue and settle" -- a long-standing legal strategy whereby anti-development groups sue government agencies such as USFWS, forcing the agency into settlement negotiations that are devoid of voter accountability -- is nothing new. In fact, the House recently passed legislation titled the Reducing Excessive Deadline Obligations Act of 2013 that sought to address these behind-the-curtain negotiations.

However, "sue and settle" continues to be an effective legal tactic for anti-development groups, whereby unelected government officials and environmental special interests negotiate secret settlements behind closed doors without any oversight by the public. This practice not only affects the independent oil and gas producers DEPA represents, but also agriculture, manufacturing and any other endeavor that requires a physical presence in the massive areas these listings encompass. The result is a significant rise in the cost of food, fuel and other consumer products.

The lesser prairie chicken listing is the result of two secretly negotiated settlements in 2011 between USFWS and like-minded special-interest groups. The settlements are a coup for anti-development crusaders, because they bypass statutorily required ESA procedures and fast-track the ESA listing process. USFWS's exclusive agreements with these special-interest groups require USFWS to complete listing decisions for the lesser prairie chicken and nearly 300 additional species (the majority of which were not even subjects of the original lawsuit) within the span of only a few short years. To put these ESA-related "sue-and-settle" abuses in proper perspective, between 1994 and 2006, anti-development groups petitioned USFWS to list an average of 20 species per year. Since 2007, however, USFWS has received petitions to list more than 1,250 species -- roughly the same number of species that have been listed during the past 30 years.

Just last month, USFWS complied with one of these "sue and settle"-induced deadlines, listing the lesser prairie chicken as "threatened" under ESA. What's most disconcerting is the decision, which could have dire consequences for economic development and private-property rights, will provide no additional protection for the lesser prairie chicken.

To be clear, DEPA fully supports the development and implementation of voluntary conservation strategies for species, and our members' response to the call of the lesser prairie chicken is a perfect and timely example of our organization's commitment to conservation. Our efforts have produced a conservation program formally endorsed by USFWS that is unprecedented in the scope of protection it affords the species and the degree of multidisciplinary collaboration that underpins it. DEPA members have not only funded this plan, but they also have agreed to adhere to the plan's conservation measures.

But these behind-the-scenes settlements force USFWS to ignore state-led conservation programs like this one. The result? A high probability USFWS will list a species as threatened or endangered even if -- by their own admission -- existing conservation programs provide sufficient protection.

This type of overreaching, irresponsible regulation will thwart oil and natural gas development at a time when energy independence is paramount, not to mention threaten thousands of good, high-paying jobs for Americans in the energy sector.

Now, DEPA, the state of Oklahoma, the state of Kansas, the state of North Dakota and others are bringing the fight to federal bureaucracy. It is time our federal government and its agencies follow the law, be transparent and afford all parties the protections of due process and participation guaranteed by the U.S. Constitution.

Edward Cross is president of Kansas Independent Oil & Gas Association.

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