After filing an appeal with the U.S. Court of Appeals for the Fifth Circuit less than two weeks prior, on May 10, 2016, the U.S. Fish and Wildlife Service (Service) filed an unopposed motion to voluntarily dismiss its appeal of the district court decision that vacated the listing of the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA). The U.S. District Court for the Western District of Texas, Midland Division, identified a number of errors in the Service’s evaluation of the species under the criteria laid out in the “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” (PECE Policy) for determining whether species conservation will be implemented and effective. A thorough discussion of the district court’s rationale is available here. After the district court declined the Service’s request to amend its judgment and remand the rule without vacatur, the Service filed the recent notice of appeal.
While the Service’s ultimate decision to forego an appeal may appear unexpected, the Service has reported its intent to conduct a status review of the species, which could lead to issuance of a new proposed rule to list the lesser prairie-chicken under the ESA. Current voluntary conservation efforts by states, federal agencies, and stakeholder industries are expected to continue, including the Western Association of Wildlife Agencies (WAFWA) Range-wide Conservation Plan. The listing status of the lesser-prairie chicken directly impacts a number of industries across the species’ five-state range—Texas, Oklahoma, Colorado, Kansas, and New Mexico—and will likely remain a controversial topic in coming years.