OKLAHOMA LAWSUITS FILED OVER DESIGNATION OF SPECIES UNDER ENDANGERED SPECIES ACT

By TONI ELLINGTON

Two property owners and a number of agricultural groups have filed suit against the government in the U.S. District Court for the Northern District of Oklahoma, claiming that the government violated the Endangered Species Act (“ESA”) by entering into an agreement to prematurely classify several species as threatened or classified.  The case was brought by property owners Andrea and Brad Hutchison, along with Quay County, New Mexico; Curry County, New Mexico; Quay Farm & Livestock Bureau; the New Mexico Cattle Growers Association #039; and others against the Department of the Interior.

In March of 2014, the Attorney Generals for the State of Oklahoma, State of Kansas, and the State of North Dakota, along with the Domestic Energy Producers Alliance and the Oklahoma Farm Bureau, filed suit in the same court against the Department of the Interior and the U.S. Fish and Wildlife Services (“FWS”) for violations of the ESA, the Administrative Procedures Act, and the U.S. Constitution.  The plaintiffs in this case claim that the agencies violated the law by entering into private settlements with special interest litigants over endangered or threatened species. The dispute arose over the FWS’ settlement involving the Lesser-Prairie Chicken, the Greater Sage-Grouse, the Sprague’s Pipit, the Rabbitsfoot Mussel, and the Northern Long-Eared Bat.  The plaintiffs claimed the agencies made premature decisions in classifying these species as threatened or candidate species.

A key issue in recent ESA disputes like these and others nationwide is how designation of the species under the ESA affects oil and gas operations in the species’ designated habitats.  The settlement in dispute in the case brought by the Attorney Generals of Oklahoma, Kansas, and North Dakota was a settlement with the Wild Earth Guardians group.  Opponents argue that the tactics of these environmental groups, along with the Department of Interior’s and FWS’ decisions to settle, have violated procedure and regulations under the ESA.  Opponents claim this settlement and the one opposed by the plaintiffs in the Hutchison case, play into the “sue and settle” tactics of the environmental groups, who file multiple petitions against FWS or other agencies, which then must respond within 90 days.  Because the agencies cannot respond to the barrage of petitions, they choose to enter into settlements, often without input from other groups that may be affected, according to opponents.

For more information, see Case Nos. 4:2014cv00509 and 4:2014cv00123 on the PACER network for the U.S. District Court, Northern District of Oklahoma, or contact Toni Ellington at (504) 599-8502.