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Lawsuit Filed to Protect Rare Colorado, Utah Wildflowers Threatened by Oil Shale Mining

Records show Fish and Wildlife Service conceded to habitat destruction demanded by industry under the guise of “conservation”
the Graham’s beardtongue (Penstemon grahamii) is a perennial plant known from the Uintah Basin in Utah and Colorado.

A Graham’s beardtongue (Penstemon grahamii). The Graham’s and White River beardtongues have been waiting for Endangered Species Act protection since 1975 and 1983 respectively.

Kevin Megown / U.S. Forest Service
March 26, 2015
Denver, CO —

Conservation groups filed a lawsuit today in federal court in Denver challenging the U.S. Fish and Wildlife Service’s decision to deny Endangered Species Act protection to two imperiled wildflowers that live only on oil shale formations in Colorado and Utah. Oil shale and tar sands mining and traditional oil and gas drilling threaten 100 percent of known White River beardtongue populations and over 85 percent of the known Graham’s beardtongue populations. 

In August 2013, the Service proposed to provide Endangered Species Act protection to the wildflowers and nearly 76,000 acres of their essential habitat, recognizing the threat posed by mining and drilling. One year later—after lobbying by industry and its supporters, including the Utah School and Institutional Trust Lands Administration (SITLA) and Uintah County—the Service reversed-course and denied Endangered Species Act protections. The Service based its decision on a 15-year “conservation agreement” negotiated behind closed doors with pro-industry stakeholders.  

Public records obtained by plaintiffs in today’s lawsuit show that the conservation agreement purposefully excluded wildflower habitat from protection to accommodate oil shale mining and drilling.  SITLA’s Associate Director and Chief Legal Counsel, John Andrews, described the agreement as follows:

“The basic concept is you’ve got a 15-year agreement that’s going to buy for all of our miners the ability to strip mine and destroy any [wildflowers] that are located on those sites in exchange for some conservation” on lands “that wouldn’t be disturbed” anyway.[1]

In its proposal to list the species, the Service recognized oil shale mining in the wildflowers’ habitat as one of the primary threats justifying the need for Endangered Species Act protections.  FWS found that that development of just two planned oil shale projects in Utah by the Enefit and Red Leaf corporations would have substantial impacts and would reduce the viability of the species.  But the conservation agreement denies protections on private and state lands slated for oil shale development during the 15-year term of the agreement, including those owned or leased by Enefit and Red Leaf.

“The conservation agreement is a giveaway to the fossil fuel industry,” said Robin Cooley, an Earthjustice attorney representing the conservation groups. “Although the Fish and Wildlife Service previously identified habitat that was essential to the survival of these wildflowers, the agency rolled over during negotiations and sacrificed more than 40% of this essential habitat, including lands the oil shale industry plans to strip mine in the next 15 years.”

“The Endangered Species Act requires the Service to make decisions based on science, not politics,” said Megan Mueller, senior biologist with Rocky Mountain Wild.  “The science here is clear, these wildflowers must be protected from strip mining and drilling.”

“The Endangered Species Act has an incredible record of saving species—but it can only work if we use it.  We’ve known for decades that these wildflowers need federal protections if they’re going to survive,” said Michael Saul, a senior attorney with the Center for Biological Diversity. “It’s shameful to see the Fish and Wildlife Service forego that effective tool just for the profits of one industry.”

“These rare and beautiful wildflowers are a treasured part of our natural heritage and we need to protect them for future generations to enjoy,” said Tony Frates with the Utah Native Plant Society. “Rather than ensuring their survival through the proven protections of the Endangered Species Act, the Fish and Wildlife Service opted for a conservation agreement that paves the way for destruction of large populations of these two species.”

Earthjustice filed today’s lawsuit challenging the Service’s failure to list the beardtongues under the Endangered Species Act 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.

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