As he bounces over his Sherman County range land in his camouflage-painted Kawasaki Mule to check on his cattle and bison, Ken Klemm is aware that what he is doing could be illegal.
Federal rules that went into effect two weeks ago to protect the lesser prairie chicken appear to ban off-highway vehicles in the bird’s habitat, he says.
This is the sort of thing that drives ranchers crazy about this whole prairie chicken issue. They love the bird and practice what they believe are sound land-management policies to nurture and protect them, Klemm says. Now the federal government is telling them what they can and can’t do on their own land. The open-air Mule, which Klemm calls a “golf cart on steroids,” is how he covers the 4,000 acres he owns north of Goodland in western Kansas.
“To me, it’s anti-American,” Klemm says. “We have a federal government that has clearly over-reached into a species that they shouldn’t have.”
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Anger, and much confusion, has spread over the prairie since the U.S. Fish and Wildlife Service listed the lesser prairie chicken as a threatened species under the Endangered Species Act in April. Some think the listing places farmers and ranchers on their own threatened list. They fear that the intrusion of government will ruin their economy, hurt oil and gas production, even threaten to shut down small western Kansas towns.
Ornithologists, however, hailed the listing, some saying it was long overdue. The birds are part of the history of the state, they say, and add to residents’ quality of life. And the prairie chicken’s showy spring mating rituals, in which the male puffs out the orange air sacs along its neck, dances and lets out booming calls to woo females, are sights not to be missed, they say.
“I think the birds are just as important as the economic development,” says Mark Sexson, who has a 400-acre ranch in Kearny County in southwest Kansas and works with other landowners.
“I don’t want anybody telling me how to run my place or the places I have a say-so in,” Sexson says, “but I’m willing to work with the state or federal government or whoever to come up with good sound decisions to move ahead.”
The fish and wildlife service cited a huge drop in population in the past year as the reason for the listing. The service said the five states with grassland that serve as the bird’s habitat – Kansas, Colorado, New Mexico, Oklahoma and Texas – had fewer than 18,000 lesser prairie chickens in 2013, down almost 50 percent from 2012.
A “threatened” listing is a step below “endangered” under the act and allows for more flexibility in how the act’s protections are implemented.
The listing allows federal oversight of efforts to revive the bird’s population.
Push-back from Topeka was swift.
Kansas joined Oklahoma in a federal lawsuit challenging the process, called “sue and settle,” that led to the listing. The process means private groups can sue federal agencies and then enter into consent decrees that compel the agencies to take action, the lawsuit says.
It says one of those lawsuits led to a federal court order that ultimately forced the U.S. Fish and Wildlife Service to list the lesser prairie chicken as threatened. The lawsuit, and other critics of the listing, say that the rush to list the bird in the wake of the court ruling meant the service failed to take necessary steps before acting, such as making environmental impact statements and thoroughly evaluating the science related to the species.
Kansas legislators approved a bill declaring that the federal government has no authority to regulate prairie chickens in the state and gave the attorney general and county prosecutors the authority to sue if any federal agency tries.
Meanwhile, U.S. Rep. Tim Huelskamp, who represents western Kansas, has proposed slashing the U.S. Fish and Wildlife Service’s budget by 25 percent.
Landowners may avoid additional regulations if they participate in a voluntary conservation plan to help the prairie chicken developed by officials in Kansas and other states.
The plan calls for oil, wind and other companies, as well as ranchers and farmers, to follow grazing, brush management and other practices.
Industries pay an enrollment fee that varies based on acreage or type of development. That money is set aside to rebuild or replace habitat that is altered or destroyed.
Landowners don’t pay an enrollment fee, but they can receive money for implementing conservation practices. The service says those in the voluntary programs won’t get fined if they accidentally harm a prairie chicken.
The plan sets a population goal of 67,000 birds range-wide over a 10-year average, determined by aerial surveys. The species was last at that level in 2006.
Confusion over restrictions
The oil and gas industry and electrical cooperatives in Kansas also feel threatened by the listing. Companies are trying to understand what restrictions are being placed on their activities and how much the listing will cost them.
Jeff Logan, land manager for Mid-Continent Energy in Wichita, pulled out information from his desk telling him that if his company puts even a small oil and gas pad on prime prairie chicken habitat, it would have to pay $103,640 in mitigation. Drilling oil and gas wells typically costs $200,00 to $300,000, he says.
“It is a huge impact on our operations and would probably render many of our drilling opportunities uneconomic,” Logan says. The mitigation requirements “just seem to be way out of line.”
Logan says companies still don’t know what might subject them to penalties or whether contractors will be subject to fines. During the mating season, drilling activities will be restricted to certain times within a prescribed distance from a “lek,” where males perform their ritual dances. Activities of seismic crews will be restricted, forcing companies to pay the crews for time they aren’t working.
The listing could mean higher rates for thousands of customers of electrical cooperatives in the affected range land, says Bruce Graham, CEO of Kansas Electric Cooperatives Inc. The association includes 29 electric cooperatives and two generation and transmission co-ops in Kansas. Nine or 10 of the co-ops are in the prairie chicken range land, where they serve about 100,000 customers, he says. The cost of enrolling in the conservation plan to get protection from accidentally harming the birds is $10,000 to $20,000 per mile of distribution line in the prime habitat and could be up to $800,000 per mile for transmission lines, Graham says. Going around that land is expensive, too, he says.
“As a nonprofit co-op, we don’t have stockholders to pass the cost along to,” he says. “We have to pass it along to consumers.”
Klemm says he has experienced fallout from the Endangered Species Act in other states. In Wyoming, where he was a guide and trapper, a friend was mauled by a grizzly bear, Klemm says. The friend managed to kill the bear, then survive a 30-mile horseback ride out of the back-country and a 70-minute ride to a hospital. He was in an intensive care unit when a wildlife official came in and cited him for killing the grizzly, which was listed as endangered, Klemm says. The friend had to go to court to prove he was innocent.
“In America, you’re innocent until you’re proven guilty. In the Endangered Species Act, you’re guilty before you’re proven innocent,” he says.
Klemm keeps detailed charts of daily grazing on his ranch near Goodland. It allows him to plan how his grasses are used to grow the required habitat for wildlife as well as his animals. The drought, he says, has had a severe impact on the grass. It is there, but it’s very short now, surviving on root reserves.
“This is how we manage our land here, and it works,” Klemm says. “We’re managing for more grasses, more diversity, more roots and to put more carbon in the soil, and that all benefits lesser prairie chicken. It benefits every wild animal on the ranch.”
Klemm believes the drought has hurt the lesser prairie chicken and that the birds will return when the rains come.
He doesn’t want outsiders telling him how to manage his land, so he hasn’t signed up for the conservation plan, meaning he lacks protection if, say, he accidentally runs over a nest with his Kawasaki Mule. Violations under the Endangered Species Act can carry up to a $25,000 fine and five years in jail.
The costs that the prairie chicken listing presents to the five states, particularly Kansas, which is home to 60 to 70 percent of the birds, puts an unfair burden on the region, Klemm says.
“If this bird really is a national treasure that the whole country should be concerned about,” Klemm says, “why is the expense just on western Kansas?”
Worth the fuss
To Mark Robbins, ornithology collection manager at the University of Kansas Biodiversity Institute, the feared impact of the prairie chicken listing is exaggerated. The management plans designed for the agricultural and energy industries allow ranching and drilling activities to continue.
Robbins said the bird should have been listed 20 to 25 years ago. He’s surprised it didn’t become extinct.
“Why do we always have to wait until things become catastrophic?” Robbins says.
Lesser prairie chickens are worth all the fuss, Robbins and other scientists say.
Lesser prairie chickens are an indicator species, meaning they serve as an indicator of the overall health of the ecosystem, says Eugene Young, a biologist and editor of ornithological society bulletins in Kansas and Oklahoma.
Loss of the bird’s habitat to agriculture and other human disturbances, as well as the extended drought, has brought it the verge of extinction, he says.
“From a Kansas perspective, the greater and lesser prairie chickens are iconic images of what Kansas was at one time,” Young says.
Ron Klataske, executive director of Audubon of Kansas, said the state would lose more than prairie chickens if it can’t save the habitats, which also support the western meadowlark, grasshopper sparrow and varieties of larks and sandpipers. Helping the prairie chicken will benefit pheasants and quail, as well, he said.
Without those species, “We’ll have a very barren prairie and a very barren state,” Klataske says.
Sexson, the Kearny County rancher, says he was against the listing. He and other ranchers had hoped programs could have been implemented to help the lesser prairie chicken without bringing in the federal government.
Sexson, a former biologist and supervisor with the state wildlife, parks and tourism department, believes that the habitat for the lesser prairie chicken actually has increased and that the bird’s future is bright once the drought ends.
Sexson says the prairie chicken makes it worthwhile to go out on the prairie.
“If you like nature, that’s what it’s all about. Money can be made in a lot of different ways,” he says. “Quality of life is what makes it worth getting up in the morning.”