After years of decline and arguable neglect, the lesser prairie-chicken (Tympanuchus pallidicinctus) was poised for a comeback in April 2014. The bird had finally scored a threatened listing under the Endangered Species Act—a big win for environmental groups after a long battle fought with petitions and lawsuits that highlighted the species’ plummeting numbers and increasing threats to its habitat. But it didn’t take long for industry to start fighting back.
In a lawsuit of its own, a group called the Permian Basin Petroleum Association argued that the listing was irrational and unfair. Oil and gas companies had already committed tens of millions of dollars to efforts designed to protect or improve lesser prairie-chicken habitat, says Ben Shepperd, president of the Association. A listing now would cost the industry billions of dollars in lost revenue. The organization had one goal: Get the bird off the list.
“There’s literally hundreds of thousands of jobs at stake here in this five-state region—untold billions of dollars in tax revenue, benefits to local communities and schools and hospitals,” Shepperd says. “When the bird was first listed, we were very concerned as an industry that it was going to have a devastating effect, a very chilling effect on oil and gas development.”
Environmental groups saw just as much at stake on the other side. The lesser prairie-chicken lives only in the grasslands of the central U.S., making it an icon of America’s unique natural heritage and a beacon of an imperiled ecosystem. With its bushy orange eyebrows, flashy mating displays, and position in the political spotlight, the bird also represents many other, less-prominent species, such as dunes sagebrush lizards, prairie dogs, swift foxes, lark buntings, and grasshopper sparrows, that share the same habitat.
“We sort of viewed the chicken as a bang-for-the-buck effort,” says Jay Tutchton, a recently retired environmental lawyer who represented the Center for Biological Diversity and was involved in the legal effort to list the species. “If you took care of the chicken, you’d probably be taking care of the lizard, and the swift fox, and the prairie dogs, and the ferruginous hawks, and all sorts of other things that currently aren’t as close to the edge as the chicken, but are headed that way.”
Up to 99 percent of American grasslands have been degraded or destroyed, adds Clay Nichols, a U.S. Fish and Wildlife Service biologist in Arlington, Texas, who grew up on the edge of prairie-chicken country in New Mexico and started surveying for the birds when he was an undergraduate at Eastern New Mexico University in the late 2000s. “The lesser prairie-chicken is an indicator species of these national treasures of the continental United States,” he says of the country’s native grasslands. “If the lesser prairie-chicken is struggling, it’s for a reason: The grasslands of the Great Plains are struggling.”
Beyond practical arguments about threats to jobs and habitats and food webs, the lesser prairie-chicken has also long attracted deep affection. The bird’s courtship dance during mating season is dramatic enough to draw tourists. “What environmentalists have tried to do is save these species so that future generations can also enjoy them and that they’re not looking at lesser prairie-chickens in a box in a museum,” Tutchton says. “It would be tragic if we lose the chicken. The prairies will be a bit lonelier without this interesting and unique bird.”
Sue Selman is attuned to this potential kind of loneliness. A native of northern Oklahoma, Selman runs a guest ranch that doubles as a featured location in an annual lesser prairie-chicken festival each April. The ranch’s website, which is full of lesser prairie-chicken photographs, urges visitors to start their day with a hot, home-cooked breakfast and then “jump in the truck and head out for an early morning view of the Lesser Prairie Chicken.”
Video portrait: Jay Tutchton, an environmental lawyer who was involved in the legal effort to list the lesser prairie-chicken
A few dozen of the birds used to breed on and near her land, Selman says, but she hasn’t seen them in a few years, and she has started to worry. “I think they’re gone—it just breaks my heart,” says Selman, who leads birding tours for festival-goers and other visitors. “I like the experience of people coming out here and enjoying the prairie-chickens and the prairie. The thought of not having those birds makes me really sad.”
It took about a year for the Permian Basin Petroleum Association’s lawsuit to reach a West Texas courtroom on a steamy June day in 2015. After months of legal wrangling, the foreseeable fate of the lesser prairie-chicken came down to this: a half-empty courtroom, a judge who asked a lot of questions without expressing a hint of emotion, and three months of waiting for a ruling. Finally, the decision came in: The judge had sided with the oil and gas industry, ruling to de-list the lesser prairie-chicken.
The decision surprised parties on both sides. And it marked yet another pivotal moment in a battle over a bird that had been going on for decades. Deep in the heart of oil and gas country, the plight of the lesser prairie-chicken has, in that time, come to offer a unique window into the inner workings of the Endangered Species Act—its potential and its limitations. Because the bird lives primarily on private land, it also raises questions about how a federal law can—or should—be implemented to protect it.
Conservation Priority Areas
The range of the lesser prairie-chicken is constrained to the Southern Great Plains, which includes parts of Colorado, Kansas, Oklahoma, Texas, and New Mexico. To better manage conservation projects and industrial development within this region, state and federal agencies collaborated to prioritize the areas that are most important to lesser prairie-chickens for nesting, leks, and cover.
Lesser Prairie-Chicken Range
Leks within current available habitat
Source: Kansas Biological Survey and Colorado Division of Wildlife
“There’s no doubt that the species needs some help,” says Christian Hagen, an ecologist at Oregon State University in Corvallis, who studies lesser prairie-chicken conservation efforts in the southern Great Plains. “The question before all of us is: What are the best methods to help?”
As yet another petition works its way through the federal review process, some experts think the lesser prairie-chicken may herald the rise of a new model of conservation—one that relies less on the hammer of the law and more on the power of negotiation. If the strategy works—even amidst shifting political winds—it could alter the future for other species, too, by acknowledging the complex and competing interests on lands where development and conservation increasingly struggle to coexist.
Across the wide-open prairies of the American Great Plains, lesser prairie-chickens used to gather like ants at a picnic, according to anecdotal reports dating back to the late 1800s that still linger in the collective consciousness of the region.
The birds, which belong to the grouse family, are mostly grey and brown except for the males’ flashy facial coloring and tufts of feathers that rise behind their necks like Dracula collars. They use these adornments to attract females at display areas called leks. At the beginning of the 20th century, according to stories that are hard to verify, lesser prairie-chickens flew together in dense flocks that filled the sky. Local lore tells of train cars packed full of dead prairie-chickens leaving Denver every few days, bound for restaurants in Chicago. In the early 1900s, there may have been a million of the birds in Texas alone. “I’ve heard people say that when the lesser prairie-chickens would come in to feed, they would literally darken the sky,” Selman says. “There would be hundreds of them. I never got to see that. I can’t even imagine.”
Over time, the species endured and rebounded from a series of setbacks, including the Dust Bowl of the 1930s, followed by major droughts in the 1950s and 90s. Since midcentury, the birds have also suffered from the development of oil and gas fields, the conversion of grassland to agriculture, and poor management of livestock grazing practices. Citing population declines and habitat loss, the first petition to list the lesser prairie-chicken under the ESA reached the U.S. Fish and Wildlife Service in 1995. Although survey numbers from that time are uncertain, the overall population of lesser prairie-chickens appears to have fallen by 90 percent or more since the species’ glory days.
Dick Wilberforce—a Texas-based wildlife photographer who was named artist of the year for the 2017 Lesser Prairie-Chicken Festival—started helping biologists study the birds in the 1960s. He has been leading tours to see their leks for two decades. In the early days, he remembers going out with a biologist friend and tracking down 22 leks, with 30 to 40 birds on each one. “I thought the world was made of prairie-chickens,” he says.
Last spring, wildfires destroyed large swaths of lesser prairie-chicken habitat in several states, including a lek that Wilberforce would take visitors to. Those fires, along with threats like overgrazing, droughts, and energy development, have put Wilberforce in a constant state of worry about the birds. “Now, if someone says, ‘I have a lek,’ that’s pretty darn good,” he says. “If a big rancher says, ‘I got three leks,’ that’s tremendous.”
In 1998, the Fish and Wildlife Service concluded that the bird met the requirements for listing under the ESA. But other species were considered higher priority and the agency lacked the resources to protect them all. Instead, the lesser prairie-chicken joined more than 200 species on a waiting list known as “warranted but precluded,” where it sat for more than a dozen years. Starting in 2010, Tutchton filed a lawsuit attempting to push the agency to move forward with listing the species. It was like a black hole of inaction, Tutchton says. And during the long wait, according to the Fish and Wildlife Service, the species’ population declined from an estimated 300,000 in the 1970s to 50,000 in the mid-90s and around 34,000 in 2012 (with only half as many estimated the following year).
The lesser prairie-chicken’s moment finally came in 2012, when the Fish and Wildlife Service officially proposed listing the species as threatened, setting in motion a process of review, comment periods, and mounting concerns among people with a stake in the land.
When a species is listed under the ESA, it becomes illegal not only to kill or harm individuals but also to damage their habitat, and those restrictions can cause major headaches for businesses and landowners. That was particularly true when federal attention turned to the lesser prairie-chicken, which thrives on habitat that happens to be loaded with oil and gas. Some 20 percent of the oil produced annually in the United States came out of the Permian Basin, making it the country’s most prolific oil-producing region, according to the 2014 lawsuit. (It’s now closer to 30 percent.) The land is also prime real estate for wind turbines, electricity transmission lines, and crops such as wheat, corn, cotton, and soybeans. A listing had the potential to curtail, or at least slow, all sorts of business interests in the region.
Concerns about the lesser prairie-chicken have long been complicated by another twist. Unlike the high-profile conservation story of the sage grouse (Centrocercus urophasianus), which lives mostly on public lands, more than 95 percent of the lesser prairie-chicken’s habitat lies on private property in a region that tends to be deeply conservative and suspicious of federal regulations. Even with a listing, enforcement of the law would be difficult in a place where few people want the federal government poking around on their land.
“It’s not easy to live here. The weather is hard. And making a living here is very hard,” Selman says, referring to conditions that breed resilience but also stubbornness and pride. “Some of these ranchers are open-minded and they’re going to listen. And some of them are just going to say, ‘Get the hell off my land.’ That’s just the way it is.”
Video portrait: Sue Selman, owner of a guest ranch that doubles as a featured location in an annual lesser prairie-chicken festival each spring
(average number of species listed per year)
Since the Endangered Species Act was signed in 1973, the number of species listed as threatened or endangered each year has varied significantly between administrations. During the eight years of the Clinton administration, for example, the average was 65 per year. In President Trump’s first year, his administration listed four.
Aware of those obstacles, the Fish and Wildlife Service had started looking for workarounds to the Endangered Species Act years before the lesser prairie-chicken reached the top of the priority list. The first deals were called Candidate Conservation Agreements with Assurances. According to these agreements, if ranchers agreed to better manage their land for lesser prairie-chicken habitat, they would earn exemptions from future regulations should the species ever be listed. Between 2006 and 2013, wildlife departments and other teams in New Mexico, Texas, and Oklahoma signed on to facilitate CCAAs and related deals with landowners.
When the official proposal for listing came through in 2012, that deal-making momentum snowballed into a first-of-its-kind agreement between the Western Association of Fish and Wildlife Agencies (WAFWA) and wildlife agencies in all five states. As part of the larger Range-wide Conservation Plan, the idea of the offsets program was to offer incentives for everyone whose interests intersect with the future of the bird. In essence, industries pay to enroll in the plan, and they pay extra fees to offset any harm their activities cause to lesser prairie-chicken habitat. They also agree to specific restrictions, like avoiding drilling or other disruptive activities during the bird’s spring mating season. The fees that companies pay go to WAFWA, which uses the money to compensate landowners for taking steps to create better habitat for the birds.
To sweeten the deal, the Fish and Wildlife Service proposed adding a rule to the threatened listing, which would give companies enrolled in the Range-wide Conservation Plan exemptions from the law if the bird were to be listed under the Endangered Species Act. Enrollments came in swiftly. Companies were willing to pay for protection from being surprised down the road, says Nichols, a Fish and Wildlife Service biologist in Texas. “What industry really wants is certainty,” he says. “They don’t want an uncertain regulatory future.”
The Range-wide Plan’s offset program wasn’t the only strategy for rallying business interests around protections for the bird. In a parallel effort in 2010, the U.S. Department of Agriculture’s Natural Resources Conservation Service launched the Lesser Prairie-Chicken Initiative. Funded by the farm bill, the program enrolls landowners in contracts that ensure exemption from Endangered Species Act regulations in exchange for better managing the land for prairie-chickens. So far, the initiative has enrolled more than 700 landowners who have committed more than 1.5 million acres of land. The Range-wide Conservation Plan’s offsets program has collected more than $64 million from 160 companies, according to WAFWA, and contracts with 20 landowners have agreed to improve about 150,000 acres.
Given those efforts and investments, industry groups felt a sense of betrayal when the Fish and Wildlife Service officially listed the lesser prairie-chicken as threatened in 2014. They had made millions of dollars in commitments, and “then, they decided that’s not good enough,” Shepperd says. “We certainly did not feel like all the hard work and dollars and commitments that had gone into the Range-wide Plan had been given a chance to succeed. It almost seemed like we went through that effort for naught.”
The listing elicited an equally strong reaction from environmental groups, who thought the decision was too lenient, contained too many exemptions, and should have been an endangered listing, not a threatened one. Of more than 100 exemption clauses issued by the Fish and Wildlife Service, the lesser prairie-chicken’s was the most permissive to industry, according to a 2017 analysis by Ya-Wei Li, an environmental lawyer at Defenders of Wildlife, a conservation organization in Washington, D.C. Li’s group was one of many that sued over the listing. “Not long after we finalized that decision,” Nichols says, “quite a few lawsuits came in the door.”
It was a race to the courthouse, Tutchton says. His team filed a suit in Washington, D.C. to fight for stricter protections. But the Permian Basin Petroleum Association’s case to de-list is the one that ended up getting heard in Texas in the summer of 2015. The lawsuit’s arguments were multi-pronged. For one thing, the industry group, along with several counties in New Mexico, claimed that protecting the bird under federal law ignored a population rebound that had occurred in recent years, as well as a near tripling of prairie-chicken habitat over the previous three decades. The plaintiffs also said the listing had inflated future potential risks to the species. And most importantly, they said the U.S. Fish and Wildlife Service and Department of the Interior had failed to consider “conservation efforts on a massive scale” that had happened outside the bounds of the ESA through voluntary agreements among landowners, states, and industry. The Range-wide Conservation Plan, the plaintiffs argued, needed time to work.
When lesser prairie-chickens mate, the action starts early. Before dawn in April and May, males stomp their feet in the prairie grass like they’re warming up for a track meet. As they dance, they inflate bright red air sacs on the sides of their necks and raise feathered neck tufts. With these displays and a chorus of warbling squawks, the males chase and fight each other in an attempt to win the right to mate with as many females as they can. It’s an entertaining display of hormones, all condensed into one small area. Outside the breeding season, when the birds disperse, they require much more space.
A single breeding group, which includes an average of 14 adult prairie-chickens, needs about 10,000 acres of land with a particular combination of grass, shrubs, and insects that can support every stage of life, Nichols says. In most cases, several breeding groups combine to make up a population of a few hundred birds that requires about 25,000 acres, or 39 square miles, to survive through all of the species’ life stages.
But expansive stretches of habitat have become scarce in the central U.S. In a 2012 analysis, the Fish and Wildlife Service pointed out that the availability of patches of suitable habitat larger than 25,000 acres has fallen. “There are a very limited number of patches that are greater than this,” Nichols says. “Everybody agrees they need large spaces. How large of a space do they need? That’s where it gets touchy.”
In Oklahoma alone, according to a 2011 study, an estimated 40 percent or more of nesting habitat has been degraded or destroyed by oil, gas, and wind-energy development, making the land potentially unlivable for lesser prairie-chickens. Growing human populations and an increase in habitat fragmentation are problems throughout the species’ range. And the birds have little tolerance for tall structures, such as power poles, oil and gas wells, and wind turbines, which they won’t approach within a mile—likely because those structures serve as perches for hungry raptors.
Development shows no signs of slowing down in the range of the lesser prairie-chicken. In a recent study of publicly available satellite imagery, Li and a colleague found recent disturbances on more than 258,000 acres of lesser prairie-chicken habitat between September 2015 and April 2017. New construction during that period included 946 wind turbines and 311 oil and gas well pads. In 2016 alone, the team estimated that between 85,000 and 184,000 acres of scrubland and grassland were converted into agricultural fields.
From its inception, WAFWA’s Range-wide Conservation Plan and other agreements encouraged participants to take part with the promise that the strategy would help the species enough to avert listing—something that industry stakeholders and many landowners desperately hoped to avoid. To measure how well it’s working, WAFWA has been conducting annual helicopter surveys, and the results might offer hope, depending on how they’re interpreted. In the past five years, lesser prairie-chicken numbers dropped from about 37,000 in 2012 to below 20,000 in 2013, but then ping-ponged back up to about 33,000 in 2017. That same time period also saw the region emerge from a severe drought, which relieved one pressure on the birds.
But not everyone is quick to celebrate. “Some folks pat themselves on the back and say this is really amazing what we’ve done,” says Hagen, who is also a science advisor to the Lesser Prairie-Chicken Initiative. “We’ve got to be a little careful.”
To determine whether the new suite of agreements, all of which are voluntary, can work without a federal listing will require patience with the long, slow process of science, Hagen says. Plenty of studies are ongoing, including those conducted by his group, which has been placing transmitters on individual birds to track their movements and help biologists assess long-term outcomes like reproductive success in areas where trees have been removed to make way for grasslands.
The clearest results so far have come from small studies of interventions like mesquite shrub removal, prescribed burns, and carefully managed grazing practices. That research has helped guide the recommendations that Hagen and colleagues provide to landowners who enroll in the Lesser Prairie-Chicken Initiative. But it’s too soon to know for sure how bird populations are responding to what Hagen calls a “grand experiment:” conservation through partnerships that rely on cooperation and trust without, at least so far, an enduring listing under the Endangered Species Act. “We’re trying to not get too excited if things look great or too despaired that things are going horribly wrong, because all sorts of things play in” to how the bird is doing, Hagen says. “It’s like the stock market.”
Video portrait: Dick Wilberforce, a Texas-based wildlife photographer who has led tours of lesser prairie-chicken leks for two decades
Until better data are available, the need for a federal listing remains a matter of great debate. Some suspect that, in the case of the lesser prairie-chicken, the ESA could make things worse—fueling mistrust of the federal government and reluctance among ranchers and business-owners to engage in agreements that would serve to clue in the Fish and Wildlife Service to the existence of birds on their land. Hints of this kind of fallout followed the proposed listing in 2012, after which enrollments in the Lesser Prairie-Chicken Initiative plummeted—and continued to decrease, even after the species was delisted.
Recognizing the delicate balance that the government has to manage in order to protect species without alienating landowners and businesses, Li is supportive of programs like the Range-wide Conservation Plan. He also thinks the post-listing drop in enrollments is understandable. Even if a listing isn’t necessary to protect the bird, he says, a threat of listing might be.
“One of the arguments that oil and gas made in litigation was that listing isn’t necessary because people will voluntarily sign up for conservation,” he says. But his satellite analysis found that just 15 to 20 percent of impacted habitat had been volunteered for protection since the listing decision was reversed.
“Given just how much habitat the species has lost and how little enrollment occurred during this time frame after delisting, we feel that a listing is necessary at this point to ensure that there’s enough participation in the Range-wide Plan,” he says. “What incentive is there to enroll if there isn’t a threat of listing?”
Today, the political battle over the lesser prairie-chicken is far from over. Shepperd, of the Permian Basin Petroleum Association, says the original and brief listing of 2014 struck people he knew as politically motivated by anti-oil sentiment in the Obama administration at the time. Now, four years later, the Fish and Wildlife Service is without a director and has been since President Trump took office in January 2017.
That lack of leadership—within an industry-friendly, anti-science administration that has already taken steps to weaken the Endangered Species Act—may make the agency even slower to process listing petitions, environmental groups have argued. In that context, conservation deal-making might take on new significance, while marking a shift in how species protection happens—with or without help from the ESA.
The Act will soon get another test. A few months after the Fish and Wildlife Service delisted the lesser prairie-chicken, in July 2016, environmental groups including Defenders of Wildlife filed another listing petition. The Fish and Wildlife Service is expected to release its latest species assessment for the bird later this year. A decision to list or not will follow sometime after that. Based on two decades of history, lawyers might want to keep their phones close by when that happens.
Wilberforce doesn’t care much for politics, and he won’t talk about religion. He does, however, want people to know about the birds, even as some ranchers have told him they’ll be glad when all the lesser prairie-chickens are gone so they won’t have to worry about dealing with them anymore. Among the people he has guided over the years, he remembers a woman with stage 4 cancer, who died a few days after coming to see the birds. “She said, ‘Do you mind if I sit here for a while?’ I said, ‘Ma’am, you can sit here as long as you want,’” he says. “It’s the love of the lesser prairie-chicken that gives me hope.”
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Morgan Heim has been sneezed on by a whale, stampeded by bison, and nearly mistaken for salmon by hungry grizzly bears, all of which she took as great compliments—especially since they let her live to spy on wildlife for another day. Her work has appeared in such outlets as Smithsonian, BBC Wildlife, National Geographic, High Country News, and NPR among others. You can find more of her work at www.morganheim.com.
Day’s Edge Productions is the brainchild of two biologists who said to each other, “Let’s quit science and make documentaries!” Day’s Edge produces long- and short-form science, natural history, and conservation films for broadcast, web, advocacy, and education. Learn more at www.daysedge.com.