Kansas lesser prairie chicken in new flap as federal agency proposes new protections

U.S. Fish and Wildlife Service proposed Wednesday listing the lesser prairie chicken under the Endangered Species Act, a move which could spark new legal battles in Kansas and other states after a round of litigation five years ago.

Under the proposed rule, the Fish and Wildlife Service would divide the bird into two distinct populations. In southern New Mexico and southern Texas it would be considered an endangered species, while those in Kansas, Colorado, Oklahoma and northern Texas would be designated as threatened, a legal status a step below endangered.

The designations will free up federal money for conservation efforts, but could also put up new environmental restrictions on businesses operating near the birds’ habitat. The Kansas population is concentrated in the western half of the state, where agriculture and energy are dominant industries.

Clay Nichols, lead biologist on the Fish and Wildlife Service team proposing the rule, told reporters Wednesday that the primary threat to the lesser prairie chicken is the loss of its habitat from energy development and conversion of grasslands to croplands.

Publication of the rule Wednesday sets off a 60-day public comment period.

The lesser prairie chicken was listed as threatened by the federal agency in 2014 under the Obama administration, but the designation spurred backlash in Kansas and other states.

Then-Gov. Sam Brownback and other Republicans decried the measure as federal overreach. Kansas Attorney General Derek Schmidt and other state attorneys general went to court, and the state enacted a 2014 law declaring “state sovereignty” over non-migratory wildlife.

Fish and Wildlife dropped the designation in 2016 after a federal judge ruled that the agency had failed to conduct a rigorous analysis following a lawsuit from an energy group.

Schmidt, now a candidate for governor, did not immediately respond to a question Wednesday on whether his office would file another lawsuit if the new rule is approved under President Joe Biden’s new administration.

A spokesman for his office responded a day later that the office would assess its legal options as the process moves forward.

“When the Obama Administration tried to list the lesser prairie chicken as a threatened species, we insisted that the federal government follow the law, took them to court and successfully fought the listing,” said Schmidt spokesman John Milburn.

“Now that the Biden Administration is pursuing this, we will again assess the legality of the federal actions and will work closely with other state and federal leaders to stand up for the concerns of the Kansans whose lives and livelihoods are affected.”

The proposed designation was swiftly condemned by the state’s two Republican senators, Jerry Moran and Roger Marshall. Moran said the listing would harm farmers and ranchers in western Kansas.

Marshall said it would limit landowner autonomy and hurt the state’s economy.

“The U.S. Fish and Wildlife Service’s announcement is disappointing and a reminder that this Administration favors government overreach and heavy handed regulation over cooperation with those who have been working to protect the Lesser Prairie Chicken’s habitat and growing the bird’s population across the Midwest,” Marshall said in a statement.

However, the designations can also provide a financial opportunity for ranchers and ranchers through mitigation credits, said Wayne Walker, the head of Oklahoma-based LPC Conservation, whose firm works with landowners to get them certified with Fish and Wildlife for conservation efforts.

“For the landowners who have the birds it can be an opportunity to diversify their income… It’s a meaningful amount of money relative to what their land’s worth and they get to keep their ranch,” Walker said.

This story was updated to include a response from Kansas Attorney General Derek Schmidt’s office.