Midnight on the prairie

Is there still time for America to save this vital bird?

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Dressed in feathers banded to disguise her among the shadows of prairie grass, a female lesser prairie chicken perches atop a dry plant stalk overlooking the southeastern Colorado plains, chortling to her potential cohort in a singular way reminiscent of an underwater coo. Her male counterpart struts beneath her on his lek (their mating ground) with head angled down and feathers from his head pointing toward the horizon. With breast puffed up, he reveals a brilliant orange air sac on his throat and bright yellow comb above his eyes as he dances for her, booming a sound that echoes across the prairie. But such is the rarest of sights these days.

The lesser prairie chicken, which depends on the prairie ecosystem, is in trouble. And an oil and gas industry-funded conservation program created to preclude the bird from being listed under the Endangered Species Act (ESA) — a protection that would have limited drilling in some areas — appears to be falling short in its claimed efforts to save the species. 

Prior to the arrival of European immigrants, lesser prairie chickens were abundant in the grasslands of what is now called Colorado, Kansas, New Mexico, Oklahoma and Texas. But now, primarily due to large-scale loss and fragmentation of habitat, the lesser prairie chicken’s range distribution has been reduced by roughly 85 percent, according to the USDA Natural Resource Conservation Service. And according to an assessment by the U.S. Geological Survey (USGS) the remaining habitat of the bird is highly fragmented. So despite conservation efforts aimed at reversing this dangerous trend, another USGS report completed in 2017 found that prairie chicken populations are declining.

These denizens of the American prairie are in danger from long-term habitat destruction and modification due to ongoing and increasing oil and gas extraction, climate change, agricultural activities, and a host of other factors including wind turbines and power transmission lines. And the global climate crisis is expected to drive a four-fold increase in the number of 100-plus-degree days on the Southern Plains the lesser prairie chicken calls home. 

For these reasons, the Center for Biological Diversity, Defenders of Wildlife, and WildEarth Guardians have joined together to sue the U.S. Fish and Wildlife Service (USFWS) and the Department of Interior that oversees it, for allegedly violating the ESA by failing to make a 12-month finding on a 2016 petition to list the lesser prairie chicken for full protection under the ESA filed by the conservation groups. According to the USFWS, the determination is now scheduled for 2021, a four-year delay the agency says is due to “numerous conservation plans in development with representatives from the agriculture, wind energy, and oil and gas energy sectors.” 

According to the USFWS, one of these plans, administered by the Western Association of Fish and Wildlife Agencies (WAFWA) has resulted in some habitat conservation for the lesser prairie chicken. The USFWS is currently working with WAFWA on a comprehensive review of the plan, which was previously scheduled, it says, to “ensure there are viable conservation programs in place” for the bird.

Michael Robinson, senior conservation advocate with the Center for Biological Diversity, says the aforementioned 2017 USGS report modeled forward the extinction threat on the lesser prairie chicken by examining previous responses of the species to various heat events in the past. In light of the climate crisis, and assuming fossil fuel production increases, which it has been doing, Robinson says the study basically shows lesser prairie chickens will continue to decline, possibly to extinction. 

“This is the kind of evidence that the USFWS is completely ignoring when they sit on their hands and don’t move to get the lesser prairie chicken under the protection of the Endangered Species Act,” Robinson says, adding his and other conservation groups believe the bird should be listed as endangered as conditions are worsening.

Despite the deteriorating conditions for the bird, it appears fossil fuel production will not only continue, but increase. David Bernhardt, secretary of the Department of the Interior and former oil and gas lobbyist who is named as a defendant in the conservationists’ suit, is “expeditiously” processing oil and gas permits on public lands, according to a recent interview he did with The Colorado Independent. Bernhardt has previously admitted he’s not overly concerned about climate change.

Oil and gas extraction is exerting a two-fold impact on the lesser prairie chicken; first, because the birds lose habitat in the short term when oil and gas exploration and associated infrastructure encroaches. And second, as oil and gas production increases, lesser prairie chickens are one among many thousands of animals and plants that are further imperiled by the climate crisis.

Making things worse, Bernhardt has proposed changes to the implementation of the Endangered Species Act that would allow economic factors to be a part of the listing decisions, potentially giving the oil and gas industry the political ammunition it would need to stop some needed listings.

Feds seem determined to drive off the cliff

Even as the conservation groups’ lawsuit and the USFWS’ decision on listing the lesser prairie chicken play out, the Bureau of Land Management is simultaneously considering leasing still more public lands in the bird’s shrinking habitat for oil and gas extraction. The lands in question are located in southeastern Colorado, due west of the Sand Creek Massacre site. 

In comments submitted by the conservation groups as part of the environmental assessment process for these BLM leases, they assert BLM must ensure its climate analysis complies with a recent March 19 court ruling in which U.S. District Court Judge Rudolph Contreras struck down nine BLM environmental analyses under the National Environmental Policy Act for oil and gas leases because the bureau had failed to account for “the cumulative impact of greenhouse gas emissions generated by past, present or reasonably foreseeable BLM lease sales in the region and nation” when it approved leases on some of its lands in Wyoming (see BW’s “To drill on Colorado public land, feds will need to assess fracking’s climate impacts, Jun. 13, 2019). 

According to Brant Porter, BLM public liaison, since the ruling regarding the Wyoming lease sale, the Colorado BLM has bolstered its “strong analysis” of greenhouse gas emissions to ensure they comply with the Wyoming precedent. WildEarth Guardians, which questions whether Colorado could have so quickly done the required research, is considering challenging the state’s claims.

In opposition to the BLM’s lease offerings, the Colorado Department of Natural Resources and Division of Parks and Wildlife are requesting BLM’s oil and gas leases in southeastern Colorado be deferred for the sake of the lesser prairie chicken. Some of the parcels are in habitat where CPW and DNR requests voluntary mitigation, but DNR Director Dan Gibbs expressed concern in a letter to the BLM regarding their ability to enforce mitigation stipulations where surface ownership is private. 

The State of Colorado listed the lesser prairie chicken as a threatened species in 1973, and since the early 1990s, the bird has experienced further overall declines in the state. CPW estimated there were only 161 lesser prairie chickens in Colorado in 2011, after finding just 148 birds in 2010, 75 birds in 2009, 116 in 2008 and just 74 between 2006-2007.  

CPW states the lesser prairie chicken population was devastated by severe snowstorms, particularly in December 2006, followed by years of drought. But oil and gas extraction was likely also a factor. According to COGCC data, statewide oil and gas drilling permits reached their peak in 2008, with 8,000 filed permits. Other big years included 2006 and 2007, with 5,900 and 6,300 permits filed, respectively. 

Since the fall of 2016, CPW has been working to restore the bird to the grasslands of southeastern Colorado. In collaboration with the Kansas Department of Wildlife, U.S. Forest Service and others including private landowners, CPW has translocated lesser prairie chickens from Kansas to Colorado’s Comanche National Grassland, and claims to be making modest progress in restoring the bird through these efforts. This will be the last year of translocations according to CPW, which will then assess its efforts and determine the best course for saving the bird going forward. The translocations — funded by a Competitive State Wildlife Grant, Wildlife cash, and Great Outdoors Colorado (GOCO) funds — cost approximately $300,000. CPW claims it has invested over a million dollars in preserving the species in the last decade, primarily working “to secure or expand viable self-sustaining populations of lesser prairie chickens.” CPW has also concentrated on habitat restoration and conservation planning. 

It is difficult to understand how one government agency such as CPW can be working proactively to relocate endangered birds into the grasslands to increase its chances of survival while another agency like the BLM is simultaneously considering granting oil and gas leases, which will further endanger the same birds in roughly the same areas. 

The public comment period for the draft environmental assessment for the Colorado leases recently closed, and the parcels are set to go on sale in September. According to BLM’s Porter, the environmental assessment for the lands in question contains a stipulation for endangered, threatened and sensitive species on all Royal Gorge Field Office lands being weighed for inclusion in the sale. “Under that stipulation, the BLM may deny a proposed activity by a lessee that may negatively affect a listed, threatened or endangered species or their designated or proposed critical habitat,” Porter wrote in an email. But because of the bureaucratic delays already described above, the lesser prairie chicken isn’t technically listed as threatened or endangered by the feds. Being only a candidate for such protections creates a very large loophole that the oil and gas industry can drive right through.

CPW says they hope the BLM will seriously consider their comments and position on the proposed leases, saying they have worked very hard on the conservation partnership.

Despite such possibilities, many critics of the BLM process of leasing public lands find it doubtful that the endangered bird will trump the desires of the powerful oil and gas industry.  

Influence of the oil and
gas industry

In 1995, the USFWS made the lesser prairie chicken a “candidate” for federal protection under the Endangered Species Act (ESA). While the USFWS found that such protection was warranted at that time, a listing was precluded due to what the Service considered other higher priority actions. The bird’s status did not change again until 2008 when the USFWS upgraded the prairie chicken’s priority ranking, reflecting an increase in threats it faced from oil and gas extraction and other factors.

 Despite this heightened status, a proposed listing under the ESA was again precluded by still other higher priority ESA listing actions. 

Finally, things were starting to look up for the bird in 2011. That’s when the USFWS began determining whether the lesser prairie chicken should become fully protected under the ESA.

However, a new wrench found its way into the process. During the USFWS’ ESA determination process, WAFWA created a partnership — largely funded by the oil and gas industry —  with the states wherein the lesser prairie chicken is native. The goal of this partnership was to come up with a range-wide conservation plan for the bird, but it was also to prevent the listing of the lesser prairie chicken on the Endangered Species List, an outcome that would have negatively impacted oil and gas extraction in the bird’s habitat. 

By creating an industry-funded alternative plan to the ESA that, in theory, would protect the prairie chicken while still prioritizing operational continuity for the oil and gas industry, WAFWA and its partners gave the courts the excuse they needed to prevent ESA protection for the bird.  

In April 2014, the USFWS finally listed the lesser prairie chicken as threatened under the ESA. However, its assessment included a special rule allowing “incidental take” of lesser prairie chickens by entities enrolled in, and in compliance with, WAFWA’s aforementioned range-wide plan — many of the largest oil and gas companies in the world. 

Soon after the 2014 listing, however, the Permian Basin Petroleum Association, which earlier helped create the WAFWA plan, along with eastern rural counties in New Mexico containing oil and gas production, sued the USFWS over the “threatened” listing on ESA. The oil and gas association and New Mexico counties won and were able to overturn the lesser prairie chicken’s ESA listing on proceedural grounds in 2015. 

WAFWA’s slide presentation claims its range-wide conservation plan was one of the primary reasons for the court’s decision.

As a result of this ruling, the USFWS removed ESA protections from the lesser prairie chicken in July 2016. By then, state wildlife biologists in Colorado and Kansas counted just two male lesser prairie chickens on the Comanche National Grasslands in Colorado and just five males on the Cimarron National Grasslands in Kansas. The conservation groups again petitioned the USFWS to protect the lesser prairie chicken under the ESA and to grant emergency protections to the most imperiled and isolated populations in Colorado, western Kansas, and along the Texas-New Mexico Border. 

According to the conservation groups, the USFWS was supposed to make its decision on listing the bird within 12 months. But so far, the USFWS has yet to act, and it doesn’t plan to do so until at least 2021. 

That’s a long time for two birds to hold out on their own. 

The impact of the energy-
industry-funded plan

So just how successful has WAFWA’s range-wide conservation plan been in conserving the lesser prairie chicken without the aid of federal protections? 

According to WAFWA, the conservation plan entered its fifth year of implementation in 2018, and by the end of that year, oil and gas industry partners had committed more than $64 million in enrollment and mitigation fees to pay for conservation actions, and landowners across the bird’s range have agreed to conserve more than 150,000 acres of habitat through both 10-year and permanent conservation agreements.

 “However, declining [oil and gas] industry enrollments are threatening the long-term viability of the industry mitigation framework part of the plan,” according to WAFWA. 

WAFWA’s plan created ways for the oil and gas industry to continue extraction while attempting to prevent the listing of the lesser prairie chicken. Although WAFWA claims modest success in terms of conserving land, it says the lesser prairie chicken is on a track to be federally listed and regulated under the ESA because of low oil and gas industry participation. Lesser prairie chicken populations are still declining despite WAFWA and the oil industry’s range-wide plan, and are further imperiled by oil and gas-driven climate change and other factors.

Perhaps the most instructive of the slides in the aforementioned WAFWA PowerPoint presentation shows that following 2014, as oil prices fell, so too did oil and gas industry enrollment in the conservation plan. And even as oil prices leveled and began increasing again beginning in 2016, oil and gas industry enrollment in the conservation plan continued to decline. Oil and gas industry-mitigated projects dropped from 481 in 2014 to 72 in 2017, with a drop in costs from $9 million to $472,936 for the same years. And according to a 2018 WAFWA report, oil and gas industry enrollment continued to fall. Even now, as drilling is booming, companies are not enrolling new mitigation acquisitions where the extraction is occurring, according to WAFWA. 

The failure of the oil and gas industry to uphold its end of the conservation bargain — all enrollment targets since the court’s ruling have been missed — is putting the industry-friendly plan in jeopardy. 

“If companies want the benefits of the [range-wide conservation plan] to avoid federal regulation, higher levels of participation are required,” reads another slide in WAFWA’s PowerPoint. 

“The conservation of the [lesser prairie chicken] is dependent upon all of our partners, not just the oil and gas industry,” the USFWS stated, which adds it’s working with all of its partners to ensure there are durable conservation options in place for the bird moving forward. USFWS didn’t respond by deadline as to the accuracy of WAFWA’s claims regarding oil and gas industry enrollments. It also wouldn’t state whether or not the conservation plan has worked, noting only some habitat conservation has been achieved and highlighting the aforementioned pending review of the plan. 

WAFWA leadership recently voted to likewise re-evaluate the status of the conservation plan and conduct an audit.  

But with only two male lesser prairie chickens known to remain in the Comanche Grasslands, its hard to imagine such continued decline could be spun as a success story. 

The impact of the Endangered Species Act

As ESA rules stand now, if the lesser prairie chicken is listed as a threatened species it would have a significant impact, according to Michael Saul, senior attorney for the Center for Biological Diversity. Such a listing wouldn’t necessarily prohibit the BLM oil and gas parcels from being leased, Saul says, but under the Endangered Species Act, once a species is put on the list, it becomes illegal to kill, capture or harass the species, as well as requiring that all federal agencies, including the BLM, have to consult with the USFWS before taking any actions that could affect a listed species to ensure that those actions won’t jeopardize the continued survival of the species or cause adverse modification to its critical habitat. 

But even if listed, the Trump administration and the Department of Interior under Secretary Bernhardt may still get the last word thanks to their previously mentioned efforts to make economic considerations a deciding factor in which species get protected under the ESA. In the case of the lesser prairie chicken, that would be a huge win for the oil and gas industry.  

Until the lawsuits and these proposed changes to the Endangered Species Act play out, it will be up to the few remaining lesser prairie chickens to fight for their own survival on the prairie where they once numbered in the millions. It’s a tall order when up against the world’s most powerful and destructive industry and the Trump administration’s quest for “energy dominance.” 

“For many thousands of years, lesser prairie chickens have lived on the prairie, in the grasslands, and gone through their mesmerizing dances and songs, enlivening the prairie,” says Robinson. “They’ve been greatly reduced by agriculture and development, and now we’re seeing some of their last homes get leased out for oil and gas. Climate change is crowding them out as well. They need the protection of the Endangered Species Act.”

Hopefully, it’s not too late.  

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