Endangered Texas Oil Field Bird Shows Peril Protection Law Faces

The sagebrush and scrubby shin oak of the oil-rich Texas Permian Basin that give shelter to the endangered lesser prairie-chicken are disappearing, plowed under by farms, intense oil and gas development, and wind power projects.

Kirk Williams, who grows wine grapes in the sand hills of the south plains on property that has been in his family for more than a century, is one of the few landowners in Yoakum County, Texas, who has included parts of his ranch in a conservation bank designed to protect the endangered grouse.

“We have a history of conservation, and it just meant that it was an opportunity to preserve some habitat forever and improve that habitat through the conservation easement,” Williams said.

As the Endangered Species Act turns 50 this week, the lesser prairie-chicken is emblematic of the conflicts among private property, energy development, and the effort to save imperiled plants and animals—some of the biggest challenges facing the act’s implementation today.

A species of grouse that has declined from hundreds of thousands to about 32,000 birds in five states, the lesser prairie-chicken a year ago was listed as endangered in the Permian Basin of Texas and New Mexico because it lives amid the most productive oil fields on the continent. The Biden administration also listed it as threatened in Colorado, Kansas, Oklahoma, and the northern Texas Panhandle. The designation, announced in 2022, took effect in March 2023.

Graphic: Jonathan Hurtarte

The listings for the bird came after years of litigation following the Obama administration’s previous listing in 2014, which was vacated by a federal court in 2015. Within months of the endangered listing, the Permian Basin Petroleum Association and the state of Texas sued separately to vacate lesser prairie-chicken protections.

The cases, in the US District Court for the Western District of Texas, were consolidated into Texas v. Department of the Interior.

President Joe Biden in September vetoed two joint resolutions under the Congressional Review Act that aimed to strip the bird of Endangered Species Act protections.

Expanding Habitat

Williams’ ranch borders a state wildlife management area that is home to lesser prairie-chickens, and conservation easements on the ranch expand that island of habitat.

The easements also entice private landowners to protect habitat on their land without being forced in a region where landowners abhor federal regulation on private property, said Adam Riggsbee, president of Austin-based RiverBank Conservation, which established the conservation bank Williams is participating in.

“Our strategy is, you go where you know the chicken is, and you scale out from that,” Riggsbee said. “In order to reach scale, we have to pay market rates for private property rights where we can permanently protect, restore, and manage native range used by the bird.”

But Williams’ willingness to protect lesser prairie-chicken habitat on his land is rare in the region where the oil industry dominates.

The lesser prairie-chicken is the “quintessential” endangered species because its range has been reduced dramatically and overlaps with both wind and oil development, galvanizing industry opposition to its protection, said Melinda Taylor, senior lecturer at the University of Texas at Austin School of Law.

The lesser prairie-chicken exemplifies the challenges the US Fish and Wildlife Service faces in implementing the act, which doesn’t protect habitat unless the agency designated it “critical habitat"—land considered essential for a species’ survival, said Brooke Marcus, an attorney at Nossaman LLP in Austin who represents the wind power and transmission line developers.

The Fish and Wildlife Service has not yet designated critical habitat for the lesser prairie-chicken because the agency said it doesn’t have enough information to do so. So while the bird itself is protected, its habitat is not—for now. That’s a challenge.

Lesser prairie-chicken protection as it currently stands “creates a tension between the cost of compliance for major infrastructure and addressing the USFWS’s concerns with respect to habitat fragmentation,” Marcus said.

The agency is making “worst-case scenario” assumptions about the future of the bird, she said.

Worse Off

The Obama administration in 2014 listed the entire population of the lesser prairie-chicken as threatened—not endangered. When a court vacated that listing, it took an environmental group’s lawsuit to force the Fish and Wildlife Service to review the bird’s status. The agency settled the lawsuit, agreeing to review the bird’s status and determine whether to list it as endangered by 2021.

Today, the lesser prairie-chicken is worse off than it was a decade ago, and even though the Fish and Wildlife Service tried to avoid listing the bird as endangered, its decline and habitat loss made it unavoidable, Taylor said.

“You’ve got a politically strong alliance of interest groups and red states that are really dug in and opposed to any type of federal listing,” Taylor said.

It’s an example of the agency “getting caught in the middle and trying hard to fashion a solution that will ruffle the fewest feathers, and at the end of the day they just get hammered,” she said. “The lesser prairie-chicken listing, I wouldn’t be surprised if it gets thrown out.”

The environmental costs of the most productive oil fields in North America and temperatures rising due to climate change show how the Endangered Species Act is needed now more than ever to address the acute threats to the lesser prairie-chicken and other species, said Noah Greenwald, endangered species director for the Center for Biological Diversity.

“It’s a double-whammy,” he said. “The power of the oil and gas industry just threatens the lesser prairie-chicken and really hundreds of thousands of other species across the planet.”