Answer: Because a Lesser Prairie-Chicken, now an Endangered Species Act “threatened species,” can do whatever it wants . . . on your land, on land that you operate, even on land where you provide services. But this is no joke—harming this bird, or just harming its now-protected habitat, can result in substantial monetary penalties or even land you in prison.
So if you own, lease, provide service to or have any other interest in western-Kansas land designated on this unofficial map or if you have existing operations, plans to expand, or to start new developments in any of these areas, proceed with caution because it is now illegal to “take” a Lesser Prairie-Chicken. This means that you cannot harm, harass, or kill a bird.
Lesser Prairie-Chicken habitat is protected too
But “harming” or “harassing” includes more than direct harm. It includes disrupting or modifying the bird’s breeding, feeding, or sheltering habits, and even modifying its habitat, which includes sand/sagebrush prairie in southwest Kansas, mixed-grass prairie in south-central Kansas, and short-grass/CRP in northwest Kansas. So direct harm or merely disturbing range-land habitat violates the Endangered Species Act and can result in per “take” $25,000 civil penalties, $50,000 criminal penalties, and a one-year prison sentence.
While the primary concern is about new activities that might affect Lesser Prairie-Chickens, the new prohibitions apply to new and some parts of existing activities such as:
- Oil and gas development and production including seismic testing, land surveying, construction, drilling, completion, workovers, operations and maintenance, plugging and remediation.
- Wind, cell, and radio towers, and power lines including construction, operation and maintenance, decommissioning and removal.
- Agricultural activities including brush management, building and maintaining fences and livestock enclosures, grazing, water supply and windmill operation, maintenance and repair.
- Road construction, operation and maintenance, and off-highway vehicle use.
- General construction and other land management including prescribed burns, game and predator management, and remediation of impacted habitat.
- Hunting Lesser Prairie-Chickens is prohibited. Because their ranges overlap, care must be taken to avoid inadvertent takes while hunting Greater Prairie-Chickens.
Because any activity near a Lesser Prairie-Chicken or any disturbance of its habitat, whether birds are present or not, could be a “take,” anyone operating any kind of existing facility, or who is in the process of planning a new or expanded operation, must proceed with caution. And because every situation is unique, acceptable practices will depend on the location and the type of activity.
Existing agricultural practices on cultivated land are exempt. Farmers cannot hunt or otherwise intentionally harm a Lesser Prairie-Chicken, and can only expand or change existing operations by following specific guidelines. But an “incidental take” during continued routine agricultural practices on cultivated lands in row crop, seed-drilled untilled crop, hay, or forage production where cultivation has taken place within the last 5 years, does not violate the Endangered Species Act. This includes plowing, drilling, disking, mowing, or other mechanical manipulation; management of lands in cultivation; routine activities in direct support of cultivated agriculture including replacement, upgrades, maintenance, and operation of existing infrastructure such as buildings, irrigation systems, fences, and roads; and use of chemicals in direct support of cultivated agriculture when done in accordance with label recommendations.
No Oil and Gas or Wind exemptions
Unlike farming, the U.S. Fish and Wildlife Service declined to exempt the oil and gas and wind industries, stating that they are two of the primary threats to the species and are likely to result in additional population declines if left unchecked. Instead, the Service stated that these sectors are better addressed through the Lesser Prairie-Chicken Range-Wide Conservation Plan developed by a non-profit Wyoming corporation called the Western Association of Fish and Wildlife Agencies (“WAFWA”), an incidental take permit, or “other” undefined mechanisms designed to offset the threats from these activities.
There is a safe haven, of sorts
Enrollment in and compliance with the terms of WAFWA’s Range-Wide Conservation Plan will protect you if an incidental take occurs. The plan requires you to avoid impacts where possible, minimize unavoidable impacts, and pay WAFWA to develop and maintain compensating habitat when impacts occur.
What if you own potential Lesser Prairie-Chicken habitat that is not developed or farmed?
WAFWA is looking for suitable land to provide mitigation. You may enroll in programs that pay you to convert your property into high-quality habitat for periods ranging from as few as five years, or by signing a perpetual conservation easement. These agreements warrant careful review. Among several other concerns, they are agreements with a private, non-profit Wyoming corporation not registered to do business in Kansas.
Kansas Attorney General Derek Schmidt has joined Oklahoma and North Dakota, the Domestic Energy Producers Alliance, and the Oklahoma Farm Bureau to challenge the listing with a lawsuit filed in the United States District Court in Tulsa.
KIOGA has announced that the Kansas Attorney General also intends to file suit in Kansas seeking to enforce new Kansas legislation asserting that the federal government does not have the authority to regulate the Lesser Prairie-Chicken in the state. See House Bill 2051, signed by the governor last week. Reliance on this legislation is ill advised at this time.