County and FWS win prairie dog lawsuit

Court determines EPA listing is not warranted

By Adam Broderick

The United States District Court ruled in favor of Gunnison County and the U.S. Fish and Wildlife Service in their case against plaintiff WildEarth Guardians on Tuesday, September 8.

Defendants in the case were also the American Petroleum Institute and Western Energy Alliance. The court denied WildEarth’s petition to list the Gunnison prairie dog as either an endangered or a threatened species under the Endangered Species Act (ESA), concluding that prairie dog populations are stable and a listing is unnecessary.

According to the ESA, to be considered “endangered” a species must be in danger of extinction throughout all or a significant portion of its range, and a “threatened” species is one that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”

The Gunnison prairie dog inhabits grasslands in the Four Corners region and is one of five species of prairie dogs in North America.

Since 2004, WildEarth Guardians has been working to list the Gunnison prairie dog under the ESA, and the Fish and Wildlife Service (FWS) has been fighting to keep the species from being listed. WildEarth’s petition to list the species originally came up because cases of the plague were being discovered among the species, but the FWS as well as Gunnison County maintain that populations are now stable and that no threats are placing or are expected to place either subspecies in danger of extinction.

Court documents show that in 1916 the Gunnison prairie dog occupied about 24.3 million acres. By 1961, largely due to disease and poisoning, it only occupied about 1 million acres. But in 2013, the species occupied about 23.4 million acres and those numbers have been stable since 2005.

In 2008, the FWS determined that listing the species was not warranted in the “prairie portion” of the species’ range but was warranted in the “montane portion” (higher elevation, wetter climate). However, WildEarth argued that there was no evidence the two were of a separate subspecies. In 2013, the FWS determined that the Gunnison prairie dog could be divided into two different subspecies: Cynomys gunnisoni gunnisoni (montane), and C.g. zuniensis (prairie). The FWS concluded that neither subspecies warranted listing pursuant to the ESA because neither subspecies is in danger of extinction.

WildEarth sued the FWS with the intention to have the entire species listed, saying the FWS “unlawfully and arbitrarily” divided the species into two subspecies based on portions of the species’ range. WildEarth won that lawsuit, saying ambiguous language made the subspecies division insufficient, and the court overturned the FWS determination of the two subspecies.

Most recently, the FWS determined that regardless of subspecies the Gunnison prairie dog should not be listed under the ESA because neither subspecies is truly facing danger of extinction or endangerment.

Gunnison County attorney David Baumgarten says the FWS determined that the species shouldn’t be listed at all, “because issues with plague have been resolved with new techniques, and a conclusion that the species recovers well even from a plague episode.”

The FWS and Gunnison County (as well as American Petroleum Institute and Western Energy Alliance) prevailed in this case, but Baumgarten says he has no idea if WildEarth will appeal the decision.