American Oil and Gas Reporter - September 2015 - 124

ConventionSection: Permian Basin Petroleum Association

PBPA Continues Fight
Against ESA Listing
By Danny Boyd
Special Correspondent

MIDLAND- Members of the Permian
Basin Petroleum Association will gather
for their 53rd annual meeting in mid-October in Midland with a vigilant eye on
efforts to protect their interests from
growing Washington encroachment. The
group's 53rd annual convention begins
on Wednesday, Oct. 14 with a reception
at the Permian Basin Petroleum Museum.
Panels, speakers and the member luncheon
will be held Oct. 15 at the Petroleum
Club of Midland.
In mid-August, the association was
awaiting a ruling from U.S. District Judge
Robert Junell on motions for summary
judgment in PBPA's challenge of a U.S.
Fish & Wildlife Service decision in March
to list the lesser prairie chicken as threatened
under the Endangered Species Act.
"PBPA and its individual members
have made numerous efforts to protect
the prairie chicken," assesses PBPA Chairman Danny Campbell, president of Henry
Resources in Midland. "Our efforts and
our court filing focus on the single issue
of listing the bird. We are making every
effort to keep it very focused. Thus far,
we have been successful in keeping the
challenge here in Midland. Whatever ruling comes forth, it will be the first on efforts to push back on this issue. At this
point, we don't know which way this
will go."
LPC Hearing
At a July 1 hearing in the U.S. District
Court for the Western District of Texas
in Midland, defendant USFWS and coplaintiffs PBPA and New Mexico's
Chaves, Roosevelt, Eddy and Lea counties,
presented arguments for summary judgment in hopes of influencing Junell to
rule in their favor with the possibility of
forgoing trial, reviews PBPA Executive
Vice President Stephen Robertson.
Junell was expected to rule within
nine weeks of the hearing, but, regardless
of the decision, neither side is likely to
drop the case, Robertson assesses. "If a
ruling comes down in our favor, we are

PBPA Annual Meeting
Midland, Tx.
Wednesday, Oct. 14

6-8 p.m. Icebreaker Reception, Permian
Basin Petroleum Museum

Thursday, Oct. 15

7:30-9 a.m. Texas and New Mexico Breakfast, Petroleum Club of Midland
9:15-11:15 a.m. Technical Sessions
11:30 a.m.-1 p.m. Membership Luncheon
1:15-4:15 p.m. Afternoon Sessions/Industry
Panels
4:30 p.m. Closing Reception

fairly certain it will be appealed by the
government and we will continue on to
the next phase," he says. "If the decision
is not in our favor, we will have to get
everybody together in a room and talk
about how to proceed."
In filed motions and responses, PBPA
and co-plaintiffs take aim at how USFWS
determined why the lesser prairie chicken
warrants an ESA listing. PBPA warns
the classification may hobble oil and gas
exploration and production in areas with
lesser prairie chicken habitat. The government argues that, without a listing,
the species risks extinction, but the USFWS is basing its argument on a flawed
method, Roberson says. He adds that the
plaintiffs also contest the procedures behind the agency's conclusions.
"We argue the government went
through its self-prescribed process to
reach the determination, but its numbers
are based slightly more on educated
guesses than scientific data to establish
the bird's historical numbers," Robertson
says. "If you use that kind of methodology
to begin with, how can you properly determine what the number should be now?"
Specifically, USFWS argues that a
substantial drop in bird populations from
one year to the next justifies the listing,
but the agency is required to establish a
10-year average to gauge whether the
population decline warrants review and
listing, Robertson notes.
"If you actually look at the recent 10-

124 THE AMERICAN OIL & GAS REPORTER

year period, when USFWS decided to
start the process of considering a listing,
the average number is only a few thousand
below where the government says the
population should be," Robertson says.
"We argue that, instead of listing the
chicken as threatened, other actions, such
as the rangewide conservation plan, can
and are being taken to improve the population back to a healthy number. We
believe the rangewide conservation plan
will succeed in time. Multiple local governments, states and private parties support
the plan, however, the federal government
is not giving the plan a chance to succeed."
Courtroom Claims
According to court documents, the
plaintiffs argue that USFWS statistics
exemplify a mistaken method. "Throughout this case, plaintiffs have emphasized
the deeply flawed process that led to the
listing of the LPC," states the plaintiffs'
response filed with the court. "The service's failure to consider up-to-date enrollment numbers is one more illustration
of this flawed process."
Numerous stakeholders worked in the
months that preceded the listing decision
to enroll millions of acres in the rangewide management plan with the expectation that USFWS would account for
those efforts, the response states. But despite requests for last minute updates,
the USFWS made no effort to include
the numbers in the listing decision and
declared the plan insufficient when it
signed the listing decision on March 7,
court documents indicate.
PBPA and its co-plaintiffs argue that,
because USFWS has chosen to improperly
implement its policy for evaluating conservation efforts with regard to listing
determinations, the agency cannot evaluate
how conservation efforts are likely to reduce cumulative threats to the lesser prairie
chicken. Filed documents show that the
plaintiffs also argue that the agency has
not performed the required analysis of
conservation efforts, but merely has summarized basic facts about each effort and
has deemed them insufficient. In the

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