Federal court says U.S. Fish and Wildlife Service must take another look at listing decision
There’s a new legal twist in the long-running battle over rare wildflowers in northwestern Colorado and northeastern Utah. This week, a federal court, restored Endangered Species Act protection for two species of penstemon that grow only in oil shale formations in the region.
Conservation activists won protection for the plants in 2013, when the U.S. Fish and Wildlife Service determined that 91 percent of Graham’s beardtongue populations and 100 percent of White River beardtongues were threatened by the impacts of oil and gas development. But a year later, the agency reversed course, claiming that a voluntary conservation agreement would mitigate those threats.
The two wildflowers have been waiting for Endangered Species Act protection since 1975 and 1983 respectively, and the threats to their continued existence have only increased as developers have flocked to Utah hoping to exploit oil shale and tar sands deposits.
Conservation groups said the deal was a giveaway to the oil industry, aimed at placating pro-energy counties, and this week’s decision by the U.S. District Court for Colorado supports their arguments. The court concluded that the Service could not reasonably rely on the agreement in denying Endangered Species Act protections.
The decision faulted the Service for failing to explain why the agreement would not simply leave the beardtongues in the same “precarious state” in 15 years as they were in when the Service proposed listing. The court also found that the agency did not base its decision solely on the best available science, as required by the Endangered Species Act, when it approved 300-foot protective buffers for the plants as part of the conservation agreement.
The court vacated the decision not to protect the plants and reinstated the proposed rule, ordering the parties in the lawsuit to meet and discuss the conservation agreement to determine whether it can be modified to prevent the two species from going extinct in the foreseeable future. This is the second time that a federal court has struck down the USFWS’s decision to deny Endangered Species Act protections to the beardtongues.
“This is a tremendous victory for these rare and beautiful wildflowers that are threatened by strip mining and drilling everywhere that they live,” said Robin Cooley, an Earthjustice attorney who filed the legal papers on behalf of the conservation groups. “FWS must go back to the drawing board and make a decision based not on politics, but on science, as the law requires.”
“The science here is clear, these wildflowers must be protected from strip mining and drilling,” said Megan Mueller, senior biologist with Rocky Mountain Wild. “We urge the Fish and Wildlife Service to get it right this time and provide protections under the Endangered Species Act.”
“It was recognized from the beginning that a 15-year agreement term was highly inadequate to protect these species, and we are grateful that the court has recognized this,” said Tony Frates, conservation co-chair of the Utah Native Plant Society. “Just in the past six months several very large-scale Uinta Basin projects have been given the green light and once started are each projected to last 25 years or more.”
Earthjustice filed the lawsuit on behalf of Rocky Mountain Wild, Center for Biological Diversity, Southern Utah Wilderness Alliance, Utah Native Plant Society, Grand Canyon Trust, Western Resource Advocates, and Western Watersheds Project.