ELR Citation: 46 ELR 20045
No(s). 7:14-CV-50 (W.D. Tex. Feb 29, 2016) (Junell, J.)

A district court denied a motion to amend its prior ruling vacating FWS' listing of the lesser prairie chicken as a threatened species under the ESA. FWS argued that the court should have remanded, rather than vacated, the rule. It claimed that there is a serious possibility that its decision to list the lesser prairie chicken could be substantiated on remand and that vacatur is disruptive. But FWS failed to show that the court committed a clear error of law in the prior ruling or that remand would prevent a manifest injustice. The facts of this case constitute a rare circumstance warranting vacatur, and FWS failed to satisfy its burden of proving that vacatur will have or has had disruptive effects. The evidence provided by FWS is speculative, as it failed to show that development activities harmful to the species are imminent or substantial. In fact, the evidence presented suggests that the threats to the lesser prairie chicken have been subsiding. And given that FWS' decision to list the species as threatened was based on the entire population across Colorado, Kansas, New Mexico, Oklahoma, and Texas, the court declined to limit vacatur to New Mexico and Texas, the only states connected to the parties in this case. Permian Basin Petroleum Ass'n v. Department of the Interior, No. 7:14-CV-50, 46 ELR 20045 (W.D. Tex. Feb. 29, 2016) (Junell, J.).