Prairie Chicken Lawsuit Moved to Tulsa | Courthouse News Service
Thursday, November 30, 2023
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Prairie Chicken Lawsuit Moved to Tulsa

(CN) - Claims that the U.S. government has inadequately protected the extinction-threatened lesser prairie chicken should fly to Tulsa, a federal judge in Washington ruled.

Defenders of Wildlife had gone to Washington in April with its challenge of the government's designation of the bird as "threatened."

The designation allows the states where the bird is found - Colorado, Kansas, New Mexico, Texas and Oklahoma - to avoid imposing additional regulations on oil and gas development under a "special-rule" exemption of the Endangered Species Act.

Known for its elaborate booming and strutting mating displays, the bird has suffered a 50 percent decline in population since 2012. Its range has been reduced by 84 percent due to a loss of suitable grasslands due to development, the U.S. Fish and Wildlife Service says.

That agency was petitioned on behalf of the bird in 1995, but budget restrictions and higher listing priorities kept the birds in limbo until 2010 when WildEarth Guardians filed suit to force the agency to act.

Its case was combined with others filed by the Center for Biological Diversity and settled in 2011, with Fish and Wildlife agreeing to submit a listing proposal by Nov. 29, 2012. The proposal was published on Dec. 11, 2012, and the special exemptions were published in May 2013.

Five federal lawsuits have since been filed in Oklahoma and Texas over the designation.

The conservation groups claim the special exemption and the Fish and Wildlife agreement allows the energy industry to "kill the equivalent of just under half of the remaining chicken population" in ten years.

U.S. District Judge Beryl Howell agreed Monday to transfer the D.C. lawsuit to Tulsa, in response to the motion filed by Oklahoma Independent Petroleum Association, which had intervened in the case.

Noting that the plaintiffs and defendants both opposed a change of venue, Howell wrote that deference to their choice of forum "is somewhat weakened" because the dispute regards agency actions "taken primarily in Oklahoma" and nearby states.

"The connection between the regulation of the lesser prairie-chicken and the citizens of Washington D.C. is less clear," the 14-page opinion states.

Howell noted that the presence of the administrative record in Oklahoma "slightly favors" transfer there because "this case will be decided on the basis of the administrative record with no witnesses likely to be called."

Howell also noted the D.C. Circuit's "well-established" rule that when two cases between the same parties on the same cause of action are filed in different federal courts, the first suit is to be allowed to proceed first.

"The instant action is the fourth suit filed," Howell wrote. "The first two cases filed, as well as a third one, are presently before Judge [James H.] Payne in the Northern District of Oklahoma."

In March, Oklahoma and the Domestic Energy Producers Alliance filed a similar federal lawsuit against the Department of the Interior and the Fish and Wildlife Service in Tulsa.

Consisting of 15 coalitions representing 10,000 people and companies in the domestic oil and natural gas industry, the alliance went after the "unprecedented secret settlements" between Fish and Wildlife and conservation groups that allowed the agency to complete hundreds of ESA listing decisions within a few years.

Federal officials are bound by statute to make Endangered Species Act listing decisions based "solely on the basis of the best scientific and commercial data available ... after conducting a review of the status of species and after taking into account those efforts, if any, being made by any state ... to protect such species [including] conservation practices, within any area under its' jurisdiction," the alliance's complaint stated.

The alliance claimed Fish and Wildlife committed itself to making the decisions before states' voluntary efforts were given a chance to remove threats to certain species.

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