Legal Battle Developing Over Federal Laws and Lesser Prairie Chicken

Mike Irvin, Kansas Farm Bureau Attorney

The economic ramifications from the presence of the Lesser Prairie Chicken in Prowers County and almost 90 other counties in five southwest states are diverse.  Representatives from the Prowers Conservation District and Kansas and Colorado Farm Bureaus are fearful that the potential overreach of the federal Endangered Species Act as it applies to wildlife, plant life and insects, could seriously impact the revenues of agriculture, energy production and the oil and gas industry in the southwest.

Jim Sipes

Kansas Farm Bureau Legal Foundation Director, Mike Irvin and Jim Sipes of the KFB presented a viewpoint of how future farming operations in the region could be impacted and the steps they are taking to prevent a new listing of the Lesser Prairie Chicken under the ESA.  In March 2014, the U.S. Fish and Wildlife Service listed the LPC as a ‘threatened species’ due to a declining population, one step away from being listed as ‘endangered’.  That’s the point, he explained, in which protective measures kick in and specify future land use.  Last June, a group known as the Center for Biological Diversity filed a lawsuit to list the species under that designation.  That has the Kansas Farm Bureau worried to the point that they’re taking legal action to halt that action and are looking for financial support for their efforts.

Irvin told an April 8 gathering in Holly, “The Center for Biological Diversity will file these suits, hoping that in the long run, they’ll be paid a settlement to drop the case.  That’s how they make their money.”  He explained the Kansas Farm Bureau, along with memberships in Texas, Colorado, New Mexico and the American Farm Bureau Federation filed a countersuit.  He said the number of birds in southwest Kansas has declined over the past several years, but it was attributable to drought disrupting their habitat, more than agricultural intrusion.  Once the bird population declines enough, a ruling on their status could be issued.  There’s also the question of additional bird habitats in non-counted areas on the fringes of the regions being listed.  “There could be more birds than estimated, but we don’t know.  The areas of interest involve five states and 90 separate counties, covering 20M acres of range and farmland of which 3.9M are in CRP.  Sipes said 25% of the LPC are found in CRP lands.  The adult male travels in a four square mile area, mostly.  The birds like that type of land for habitat with foliage that’s 18 inches tall, where they subsist mostly on seeds.    Southwest Kansas has 39 affected counties south of I-70 and about 80% of traditional habitats are gone.  Southeast Colorado is on the fringe of that area, but has already seen how local LPC habitats have halted any progress on a proposed dairy farm operation south of Holly.

The term ‘take’ is applied to an act which harms the bird or its habitat. Irvin explained the penalties, if a person or company is found guilty, are harsh.  “You can be fined a maximum of $50,000, sentenced to a year in jail on criminal charges and be subjected to civil penalties up to $25,000 per ‘take’,” he explained.  The Bureau wants some modifications made to the ESA, using a more common sense approach.  The oil and gas industry has a buy-out option where they can pay into a mitigation program which uses the funds to establish habitats in other areas.  Irvin said, “To date, $45M has been paid into the program, with only 200,000 new habitat acres established and that seems very costly to me.”  Because agricultural operations were not included in the initial development of the mitigation program, they cannot make use of the buy-out after the fact.

Sipes was asked if there are any estimates of the potential negative economic impact to the affected areas of the five states in question if the Lesser Prairie Chicken is listed as endangered.  He said that type of an estimate is not available at this time.  He added, “Primarily the ESA does not allow them to look for the economic impact for a listing decision.  Now if they do declare critical habitat they do have to consider some economics in that.  Our experts in the bureau also feel that if we challenge a designation on their future assessment, we probably won’t win.”

Sipes added that there’s about one year left to determine what areas are critical habitats for the bird’s main focal and connective points, on a regional scale before the study is finalized.  Irvin said one goal of the group is to fight for personal property rights and bring a balance to future rulings derived from the Endangered Species Act.  Interested landowners can view the latest results of their efforts at the website, www.stopfowlplay.com.

By Russ Baldwin