Pillsbury Winthrop Shaw Pittman

The Fish and Wildlife Service lists the lesser prairie-chicken as a threatened species under the Endangered Species Act

By Brad Raffle, Thomas A Campbell, Anthony B Cavender and Nicholas M Krohn

On 21 March 2014, the US Fish and Wildlife Service (FWS) promulgated a final rule that lists the lesser prairie-chicken (LPC) as a ‘threatened’ species under the Endangered Species Act (ESA). Under the ESA, a species is threatened if it is likely to become endangered (and facing extinction) throughout all or a significant portion of its range. The rule has now been published in the Federal Register (79 FR 1974, 10 April 2014), and it will be effective on 12 May 2014. The listing will be located in the FWS rules at 50 CFR § 17.11(h).

The ESA was enacted ‘to provide a means whereby the ecosystems upon which endangered species and threatened species may be conserved, [and] to provide a programme for the conservation of such endangered species and threatened species’. The ESA is expansive, covering all fish or wildlife or plants. The FWS, acting on behalf of the secretary of the interior, is authorised to determine whether a particular species should be listed as endangered or threatened and to designate ‘critical habitat’ for the species. These listing determinations must be made solely on the basis of the best scientific and commercial data available; as a result, the administrative record is usually voluminous, and this is certainly true of the LPC listing.

Once a species is listed, the ESA prohibits the ‘taking’ of a protected species, as well as ‘harm’ to a protected species. The FWS broadly defines ‘harm’ to include habitat modification that kills or injures wildlife. Consequently, federal agencies must consult with the FWS to ensure that their actions — including permit approvals and other authorisations — do not jeopardise listed species or adversely modify their ‘critical habitat’. The law also authorises federal agencies to take affirmative actions that ‘seek to conserve endangered species and threatened species’…

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