FAIR OR FOWL?
In a case before the state Supreme Court, a company seeks to exit its contract after the prairie chicken's de-listing
An Oklahoma oil and gas operator t hat hasn't held up it send of a contract it entered to help maintain habitat for the lesser prairie chicken is asking Oklahoma's Supreme Court to decide whether its actions were justified.
Le Norman Operating, part of Templar Energy — a company started and grown but no longer owned by David Le Norman, chair - man of the Oklahoma Petroleum Alliance—is being sued in Oklahoma County District Court by the Western Association of Fish and Wildlife Agencies, a nonprofit group that runs a program to preserve habitats for the bird.
The nonprofit asserts in its lawsuit the company owes it about $4.1 million that it would use to help landowners undertake conservation measures to help preserve the species.
The company countersued, arguing that the agreement it had entered into effectively was voided because of a federal judge's 2015 determination that the U.S. Fish and Wildlife Service had acted “arbitrarily and capriciously by improperly interpreting and then applying” applicable law when it made its determination the bird was threatened.
The same judge' s ruling also effectively removed the bird from the service's threatened species list.
In its answer as part of the Oklahoma County case, Le Norman Operating asserted it owed the nonprofit nothing because it didn't enroll in the program until after the Fish and Wildlife Service had determined the species was threatened.
It asked the judge to require the nonprofit to repay it about $ 352,000 it had given the organization so far, and asked the judge to also require the nonprofit to pay Le Norman's attorney fees, costs and expenses.
Shortly thereafter, Le Norman Operating sought a summary judgment in the case.
In July, Oklahoma County District Court Judge Richard C. Ogden denied Le
Norman's request, ruling the contract between the two was valid.
Last month, Ogden heard argument son whether to allow Le Norman Operating to appeal his ruling to the supreme court, and ul timately agreed to that request.
This week, Le Norman Operating asked the supreme court to consider the case.
Bird's status remains political
While the U.S. government dropped its effort to list the lesser prairie chicken as a threatened species in 2017, environmentalists' efforts to change that position continue.
Three groups, including Defenders of Wildlife, filed a lawsuit against the federal government in June seeking further evaluation of the bird's status. To resolve that case, the U.S. Fish and Wildlife Service agreed to conduct another review of the bird's status and complete it before the end of 2021.
Meanwhile, U.S. Sens. Jim In ho fe and James Lank ford, both Oklahoma Republicans, signed a letter along with senators from other involved states, sent to the Secretary of Interior asking for federal authorities to give the association' s conservation program an adequate opportunity to accomplish i ts mission before undertaking another review.
“It is imperative that you provide the fullest and fairest opportunity for such private conservation plans to succeed ,” the letter stated.
The bird' s habitat includes parts of western Oklahoma, Kansas, Texas, New Mexico and Colorado, and some oil and gas and agriculture advocates fear listing the bird as an endangered species could cur tail activities within those states.
A report released in March by the Western Association of Fish and Wildlife Agencies estimated the bird' s population at 38,637, an increase of 29% from the previous year, and credited that growth to its mitigation plan.
Its latest annual report, published in January, also stated industry partners had committed more than $64 million in enrollment and mi tigati on fees to pay for conservation actions, and that land owners across the range had agreed to conserve more t han 1 50,000 acres of habitat through 10-year and permanent conservation agreements.
However, it observed declining industry enrollments were threatening the long-term viability of its mitigation framework.
And t he Le Norman lawsuit raises another critical question.
If the company were to obtain an affirmative ruling from the supreme court, might t hat give other participating companies in Oklahoma that joined the program between when the chicken was listed as threatened and when it was delisted a precedent to void their contracts as well?
Attorney Jason Rylander, senior counsel at Defenders of Wildlife, said that potential is troublesome for an organization that already appears to be having difficulties carrying out its plans.
“The rangewide plan was an unprecedented attempt to engage states and private landowners in conservation, but for us, the proof is in the pudding,” Rylander said.
“We need to see plans in place that are meaningful, robust and enforceable. If you aren't going to protect the species by placing it on the list, these plans have to do the work, and we have growing concerns that the association' s range wide plan is not adequate.”
Le Norman, meanwhile, is no longer connected to the company involved in the case.
He now owns a venture capital company called Reign Capital Holdings, which invests in upstream and midstream oil and gas and oil and gas services.
He was selected to serve a two- year term earlier this year as the first chairman of the Petroleum All i ance of Oklahoma, t he oil and natural gas trade association formed by the merger of the Oklahoma Independent Petroleum Association and the Oklahoma Oil& Gas Association.
A representative for Le Norman didn't respond Friday to a request for comment.