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Permian Basin Petroleum Ass'n v. Department of the Interior

ELR Citation: 45 ELR 20162
Nos. MO-14-C V-SO, (W.D. Tex., 09/01/2015) (Junell, J.)

A district court vacated an FWS rule listing the lesser prairie chicken as a threatened species under the ESA. ESA §4(b) requires FWS to take into account conservation efforts being made by any state before making a listing decision. In 2003, to encourage the development of conservation agreements and plans and to provide certainty about the standard that an individual conservation effort must meet under ESA §4(b), FWS issued its Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE). With regard to the lesser prairie chicken, five states—Colorado, Kansas, New Mexico, Oklahoma, and Texas—are undertaking conservation efforts for the species under a rangewide plan (RWP). The court held that when FWS listed the lesser prairie chicken, it failed to properly apply the PECE to the RWP. FWS failed to evaluate the cumulative effects of all lesser prairie chicken conservation efforts as required by the policy, instead reviewing the RWP in isolation of all other pending and existing conservation efforts. In addition, although FWS did conduct an analysis of all 15 criteria under the PECE, it failed to conduct the "rigorous" analysis of the RWP in several key portions that the policy prescribed. It also failed to consider important questions and material information necessary to make a proper PECE evaluation of the RWP. FWS also wrongly required proof that the RWP had contributed to the elimination of one or more threats to the lesser prairie chicken at the time of the listing decision. The added requirement that the RWP eliminate or even adequately reduce a specific threat at the time of the listing was improper. And FWS' interpretation of the policy is "irrelevant" because the PECE is unambiguous. Given FWS' failure to properly apply the policy, FWS acted arbitrarily and capriciously, and its errors warrant vacatur of the final rule and listing determination.