The Lesser Prairie-Chicken and circumventing public oversight

This year, Domestic Energy Producers Alliance (DEPA) joined with the state of Oklahoma in a legal battle with the U.S. Fish and Wildlife Service (USFWS) over a “sue and settle”-induced deadline to decide whether the Lesser Prairie-Chicken should be listed as “threatened” under the Endangered Species Act (ESA). 

At first glance, this might seem like a parochial issue. In reality, it is a lawsuit that carries with it serious implications not only for the individual private property rights of all Americans, but also for the future of our economy and energy independence here in the United States.

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The fight over “sue and settle” – a long-standing legal strategy whereby anti-development groups sue government agencies like USFWS, forcing the agency into settlement negotiations that are devoid of voter accountability – is nothing new. In fact, the House recently passed legislation entitled the Reducing Excessive Deadline Obligations Act of 2013 that sought to address these behind-the-curtain negotiations.

However, “sue and settle” continues to be an effective legal tactic for anti-development groups, whereby unelected government officials and environmental special interests negotiate secret settlements behind closed doors without any oversight by the public. This practice not only affects the independent producers that DEPA represents, but also agriculture, manufacturing and any other endeavor thatrequires a physical presence in the massive areas these listings encompass. The result is a significant rise in the cost of food, fuel and other consumer products.

In the case of the Lesser Prairie-Chicken, its prominence in national headlines is the product of two of these secretly negotiated settlements in 2011 between USFWS and like-minded special interest groups. The settlements are a coup for anti-development crusaders, because they bypass statutorily required ESA procedures and fast-track the ESA listing process. USFWS’s exclusive agreements with these special interest groups require USFWS to complete listing decisions for the Lesser Prairie-Chicken and nearly 300 additional species (the majority of which were not even subjects of the original lawsuit) within the span of only a few short years. To put these ESA-related “sue and settle” abuses in proper perspective, between 1994 and 2006, anti-development groups petitioned USFWS to list an average of 20 species per year. Since 2007, however, USFWS has received petitions to list more than 1,250 species – roughly the same number of species that have been listed over the past 30 years.

Just last month, USFWS complied with one of these “sue and settle”-induced deadlines, listing the Lesser Prairie-Chicken as “threatened” under ESA. What’s most disconcerting is that the decision, which could have dire consequences for economic development and private property rights, will provide no additional protection for the Lesser Prairie-Chicken.

To be clear, DEPA fully supports the development and implementation of voluntary conservation strategies for species, and our members’ response to the call of the Lesser Prairie-Chicken is a perfect and timely example of our organization’s commitment to conservation. Our efforts have produced a conservation program formally endorsed by USFWS that is unprecedented in the scope of protection it affords the species and the degree of multidisciplinary collaboration that underpins it. DEPA members have notonly funded this plan, but they have also agreed to adhere to the plan’s conservation measures.

But these behind-the-scenes settlements force USFWS to ignore state-led conservation programs like this one.  The result? A very high probability that USFWS will list a species as threatened or endangered even if – by their own admission – existing conservation programs provide sufficient protection.

This type of overreaching, irresponsible regulation will thwart oil and natural gas development at a time when energy independence is paramount, not to mention threaten thousands of good, high-paying jobs for Americans in the energy sector.

Now, DEPA and the state of Oklahoma are bringing the fight to federal bureaucracy. It is time that our federal government and its agencies follow the law, be transparent, and afford all parties the protections of due process and participation guaranteed by the United States Constitution.  

McDonald is president of the Domestic Energy Producers Alliance.