Texas to Sue Biden Administration Over Endangered Species Listing

State joins Kansas and Oklahoma in fight challenging federal overreach

Texas Attorney General Ken Paxton speaks during the Conservative Political Action Conference CPAC held at the Hilton Anatole in Dallas on July 11, 2021. Brandon Bell/Getty Images

Texas Attorney General Ken Paxton on Feb. 6 issued a notice of intent to sue two Biden administration agencies over an endangered species listing for the lesser prairie chicken, adding to a growing number of states resisting the decision.

“This rule was a targeted attempt to implement an unlawful, top-down federal approach aimed at advancing a radical environmentalist agenda, which would crush the type of economic development that aids in providing funds for conservation. This isn’t going to fly in Texas,” Paxton said in a statement.

Paxton joins Kansas Attorney General Kris Kobach and Oklahoma Attorney General Gentner Drummond in challenging the rule, which would go into effect on March 27.

“Kansas will lead the way in fighting against this overreach by the Biden administration,” Kobach said in a Jan. 31 press release.

Former Kansas Secretary of State Kris Kobach(R), follows a rally against COVID-19 vaccine mandates with his oldest daughter, 15-year-old Reagan(L), outside the Kansas Statehouse in Topeka, Kan., on Oct. 30, 2021. John Hanna/AP Photo

The Fish and Wildlife Service previously pushed back the date to March from January, saying it would “allow the service to finalize conservation tools and guidance documents to avoid confusion and disruption for landowners, federal partners, and industry within the lesser prairie chicken’s five-state range.”

The change came after a number of Republicans in Congress, including James Lankford (R-Okla.), Roger Marshall (R-Kan.), and Ronny Jackson (R-Texas), worked to delay the final rule’s effective date.

“Each party that is targeted by this listing must take advantage of this opportunity to continue to engage in their longstanding voluntary conservation efforts, a fact that went completely ignored by the federal government when it came to this decision,” Lankford and those colleagues wrote in a joint statement on Jan. 23.

Texas’s lawsuit targets the Department of the Interior and the U.S. Fish and Wildlife Service.

The latter agency listed the grassland bird, a member of the grouse family, under the Endangered Species Act on Nov. 25, 2022.

More specifically, a northern population of the lesser prairie chicken was listed as threatened, while a southern portion was listed as endangered.

“The lesser prairie chicken’s decline is a sign our native grasslands and prairies are in peril. These habitats support a diversity of wildlife and are valued for water quality, climate resilience, grazing, hunting, and recreation,” the Fish and Wildlife Service’s southwest regional director Amy Lueders said in a statement in November.

The Center for Biological Diversity, an environmental group, celebrated the move as “a victory for lesser prairie chickens.”

The bird’s status has long been a point of contention between some environmental groups and property owners in the region, particularly hydrocarbon companies and cattle ranchers. Environmentalists’ efforts to protect it under the Endangered Species Act began decades ago.

An oil pumpjack works in the Permian Basin oil field in Stanton, Texas, on March 12, 2022. Joe Raedle/Getty Images

In 2014, under the Obama administration, the species was finally listed as threatened.

A judge threw out the listing in 2015, siding with an oil industry group that argued the listing failed to account for voluntary conservation work already being done in the bird’s range.

That same oil industry group, the Permian Basin Petroleum Association (PBPA), has joined the National Cattlemen’s Beef Association and other agricultural groups in their own lawsuit over the latest lesser prairie chicken listing.

Like Kobach, Drummond, and the PBPA, Texas’s Paxton argued that the federal decision ignores local efforts by landowners, the state, and other parties.

Paxton’s press release claims that the Biden administration should have conducted an impact analysis under the requirements of the National Environmental Policy Act, arguing that the lack of such an analysis can be counted among the factors that make the listing illegal.

The Fish and Wildlife Service declined to comment.