Lost: The Supreme Court declined to hear the case on June 7, 2021.

Ken Klemm is a buffalo rancher by trade, but he believes in leaving his land in better shape than before, so he has also spent the past 20 years using his 4,000-acre ranch in Kansas for conservation efforts. Klemm was the first president of the KNRC, which has been instrumental in bringing the fight against endangered species listing of the lesser prairie chicken.

But a conservation plan developed by KNRC to keep the bird off the endangered list now faces danger of its own, because a federal agency failed to follow the law.

In 2003 the Fish and Wildlife Service created the PECE Rule. The PECE Rule sets the standards for evaluating that plan in listing decisions and provides the key incentive for states, industry, conservationists, and property owners to participate.

The resulting management plans have proven successful including KNRC’s lesser prairie chicken plan adopted and implemented through its member counties. As a result, the lesser prairie chicken’s population has doubled, keeping it off endangered lists, while respecting property rights.

But the Service never submitted the PECE Rule to Congress as required by the CRA. Passed in 1996, and signed by President Bill Clinton, the CRA requires federal agencies to send rules to Congress before they may take effect giving Congress its rightful opportunity to oversee agency actions.

The Fish and Wildlife Service’s failure to submit its rule to Congress means the rule is not lawfully in effect and thus cannot be relied upon. Therefore conservation efforts like the KNRC’s are caught in a Catch-22: plans will be evaluated under the rule, but since the rule’s not legal in the first place, relying on it risks substantial litigation and regulatory uncertainty.

On behalf of the KNRC, PLF filed a lawsuit asking a federal court to declare that the Service violated the CRA and Administrative Procedure Act. The suit also demanded that the Service submit its rule to Congress for approval so it could legally take effect and allow good conservation work to continue.

What’s At Stake?

  • Rulemakers must follow the rules: No unelected, unaccountable bureaucrat can enforce any rule without first submitting the rule to Congress for review. Failure to do so creates an unnecessary cloud of uncertainty around rules that people must be able to rely on.
  • The Fish and Wildlife Service’s failure to submit the PECE Rule to Congress puts conservation efforts in a Catch-22: plans will be evaluated under the rule but, since it’s not legally in effect, relying on it creates substantial legal risks.

Case Timeline

August 24, 2020
Court Opinion
United States Court of Appeals for the Tenth Circuit
April 11, 2018
United States Court of Appeals for the Tenth Circuit