American Oil and Gas Reporter - January 2017 - 14

IndustryDigest
USFWS Cites Petition
As It Weighs Relist Of
Lesser Prairie Chicken
WASHINGTON-The U.S. Fish &
Wildlife Service says it plans to
reconsider listing the lesser prairie
chicken as endangered four months after
removing the bird from the federal
endangered and threatened wildlife list.
A 2015 court ruling removed the
lesser prairie chicken's threatened status
under the Endangered Species Act
(AOGR, October 2015, pg. 20).
According to the agency, while a review
of an emergency petition antidevelopment groups submitted cites
information indicating a relisting may
be warranted, the agency's action
actually is a continuation of an
assessment that originates from the
chicken's 2014 listing.
Lesli Gray, a USFWS public affairs
specialist, says the service has started
the assessment to help the recovery
process, with completion scheduled for
the summer of 2017. She says the
agency then will begin a 12-month
review and assessment of the bird and
conservation plans in September.
USFWS will not make a listing decision
until 2018, Gray states.
The WildEarth Guardians, Defenders
of Wildlife, and Center for Biological
Diversity submitted the emergency
petition Sept. 8. The document says oil
and gas development is one of the major
causes of habitat loss and fragmentation
for the lesser prairie chicken.
According to the petition, the
amount of land converted to well pads
and roads reflects only a small portion
of the total impact of oil and gas
development. It says the direct footprint
represents only 5 percent of the total
habitat degradation, while the impacts
of habitation fragmentation and species
avoidance behavior accounts for 95
percent of impacted habitat.
U.S. Senator James Inhofe, R-Ok.,
expresses disappointment in the
USFWS decision.
"Just last year, the (U.S. District
Court for the) Western District of Texas
appropriately overturned the lesser
prairie chicken's previous listing, noting
that the service did not adequately
consider the effectiveness of the states'
conservation plans when it assessed the
species' need for federal protection. It is
important that we let the multistate
14 THE AMERICAN OIL & GAS REPORTER

conservation plan have time to work
before bringing down the full force of
the ESA," he says.
The ESA should be a last resort, he
asserts, adding local cooperative efforts
can set a precedent for progress on
species conservation without the heavy
hand of the federal government.
According to the Texas Independent
Producers & Royalty Owners
Association, USFWS is requesting
scientific and commercial data on the
lesser prairie chicken. Information can
be submitted until Jan. 30. ❒

18 States Sue To Stop
Critical Habitat Rule
Eighteen states led by Alabama and
Arkansas filed a lawsuit Nov. 29 in U.S.
District Court for the Southern District of
Alabama, challenging federal rules that
expand the definition of critical habitat
for threatened or endangered species.
The Independent Petroleum
Association of America explains that in
February 2016, the U.S. Fish & Wildlife
Service finalized rules that enabled it to
designate as critical habitat, areas that
did not at the time, and might never be,
necessary to conserve a species simply
by determining that "it is reasonable to
infer from the record that (the
unoccupied areas) eventually will
become necessary to support the
species' recovery."
According to IPAA, USFWS's order
also:
* Redefined "habitat destruction and
adverse modification" to protect not only
existing habitat features, but features that
someday could develop; and
* Essentially adopted as policy a de
facto moratorium on considering federal
lands for exclusion from critical habitat
designations.
"This dramatic expansion of federal
power over land rights has the potential to
threaten economic development across the
nation," declares Arkansas Attorney
General Leslie Rutledge, adding that the
rules may "mire wide swaths of land in
bureaucratic red tape under the notion that
the property may theoretically someday
be beneficial to a certain species, even
when there is no actual research or data to
support that speculation."
Alabama Attorney General Luther
Strange says, "If this rule is
unchallenged, there could be no limit to
(the government's) regulatory reach,
potentially setting the stage for the

federal government to designate entire
states or even multiple states as habitat
for a particular species."
As an extreme example of the rule's
potential, Rutledge and Strange contend
USFWS could designate desert land as
critical habitat for a fish and then
prevent the construction of a highway
over that land on the theory it would
prevent the formation of a stream that
might one day support the species. Or,
they say, the service could prevent a
landowner from planting loblolly pine
trees in a barren field if planting
longleaf pine trees might one day be
more beneficial to an endangered or
threatened species.
The lawsuit asks the court to find
that the expanded definitions violate the
Endangered Species Act, and are
arbitrary and capricious under the
Administrative Procedure Act.
Joining Arkansas and Alabama in the
lawsuit are Alaska, Arizona, Colorado,
Kansas, Louisiana, Michigan, Montana,
Nebraska, New Mexico, Nevada, North
Dakota, South Carolina, Texas, West
Virginia, Wisconsin, and Wyoming.
Named as defendants are the U.S.
secretary of the interior, National
Marine Fisheries Service, the secretary
of commerce, and USFWS. ❒

NMFS Proposes Listing
Bryde's Whale In GOM
WASHINGTON-The National
Marine Fisheries Service and the
National Oceanic and Atmospheric
Administration are proposing to list the
Gulf of Mexico population of Bryde's
whale as threatened or endangered
under the Endangered Species Act.
In its 12-month finding and listing
determination, which was published in
the Dec. 8 Federal Register, NMFS says
it considers the Gulf of Mexico Bryde's
whale a distinct subspecies eligible for
ESA protection. "Based on the Gulf of
Mexico Bryde's whale's small
population (likely fewer than 100
individuals), its life history
characteristics, its extremely limited
distribution, and its vulnerability to
existing threats, we believe the species
faces a high risk of extinction," the
service adds.
In its proposed rule, the National
Ocean Industries Association points out,
"NMFS alleges the 2010 Deepwater
American Oil and Gas Reporter - January 2017

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