Lesser Prairie Chicken

The Lesser Prairie Chicken (LPC), Tympanuchus pallidicinctus, is a species of prairie grouse commonly known for its spring mating display. The LPC is found in five states throughout the southern and central high plains of the United States, including much of western Kansas. The LPC depends on prairie and grassland ecosystems, which have changed over the years due to fires, livestock grazing, agriculture, infrastructure changes, and energy production.

The U.S. Fish and Wildlife Service (USFWS) estimates the habitat of the LPC has diminished across its historical range by about 90 percent. Additionally, the LPC is considered by the USFWS to be a “boom-bust” species because its annual reproductive success is tied to precipitation patterns. Historical estimates suggest the LPC population was once in the hundreds of thousands; however, the USFWS now estimates the population of the LPC to be about 27,000 across the five-state region.

Listings Under the Endangered Species Act

The LPC has been a candidate for listing under the Endangered Species Act (ESA) since 1998, and was listed as a threatened species under the ESA in 2014. Following a lawsuit in 2015, the listing was vacated; however, in September 2016, the USFWS received a new petition to list the LPC as an endangered species. In November 2016, the USFWS determined that an endangered species listing could be warranted.

In May 2021, the USFWS listed two distinct population segments (DPS) of the LPC:

• The Northern DPS, covering south-central and western Kansas, southeastern Colorado, western Oklahoma, and the northeast Texas Panhandle, was listed as threatened; and
• The Southern DPS, encompassing eastern New Mexico and the southwest Texas Panhandle, was listed as endangered.

The USFWS also finalized a Section 4(d) Rule aimed at conserving the Northern DPS and allowing greater flexibility for landowners and land management.

The effective date of the final rule was delayed from January 24, 2023, to March 27, 2023.

Congressional and Presidential Action

Senate Joint Resolution 9 was introduced by U.S. Senator Roger Marshall on February 7, 2023. S.J.Res.9 would have nullified the final rule issued by the USFWS that listed the Northern DPS of the LPC as threatened and the Southern DPS of the LPC as endangered under the ESA. The joint resolution was passed by the Senate on May 3, 2023, and passed by the House of Representatives on July 7, 2023.

President Joe Biden vetoed S.J.Res.9 on September 26, 2023. The Senate failed to override the veto on September 28, 2023.

Kansas Resolution

During the 2023 Legislative Session, SCR 1602 was introduced and passed by the Legislature. SCR 1602 stated the Kansas Legislature disapproves the designation of the LPC as a threatened species in Kansas by the USFWS and supports the passage in Congress of Senate Joint Resolution 70 and House Joint Resolution 105, which would have nullified the final rules issued by the USFWS and returned control to the farmers, ranchers, and energy producers of Kansas.

Pending Litigation

Three lawsuits have been filed regarding the USFWS listing:

• March 2023 – the Kansas Livestock Association, National Cattlemen’s Beef Association, and other industry groups filed a lawsuit against the U.S. Department of Interior and the USFWS in the Western District of Texas;
• April 2023 – the Kansas Attorney General joined Texas and Oklahoma in their federal lawsuit that was filed in the Western District of Texas; and
• July 2023 – Kansas farmers and ranchers and the Kansas Natural Resource Coalition filed a federal lawsuit in the District of Kansas.

As of publication, all three lawsuits are pending. In October 2023, the lawsuit filed by Kansas farmers and ranchers and the Kansas Natural Resource Coalition was transferred to the Western District of Texas court. The federal government argued that all three cases share the same defendants and could result in inconsistent adjudications. The other two lawsuits have been consolidated and are scheduled to begin the trial on October 7, 2024.