The suit was filed by Earthjustice on behalf of the Center for Native Ecosystems, Utah Native Plant Society, Colorado Native Plant Society, and Southern Utah Wilderness Alliance.
In January 2006, the U.S. Fish and Wildlife Service proposed to add Graham's penstemon to the endangered species list. But instead of finalizing protections, in December 2006 the Service suddenly reversed course and claimed that threats were no longer present.
"I fully support Endangered Species Act protection for Graham's penstemon," said Dr. Leila Shultz, Professor Emeritus of Wildland Resources at Utah State University in Logan. "The proposal to protect the penstemon should never have been withdrawn." Dr. Shultz served as one of the official peer reviewers of the Service's proposal to protect the penstemon, and helped discover many of the known populations in the late 1970s. "When I went back to the penstemon's habitat this fall, I couldn't believe how many new roads were in there," she added.
Graham's penstemon is a strikingly beautiful wildflower in the snapdragon family that only occurs on oil shale outcrops in the Uinta Basin of
northeastern Utah and northwestern Colorado. The penstemon was first considered for Endangered Species Act protection in 1975, when the Smithsonian drafted the first list of plants to be protected under the Act. After nearly 30 years without action, and with drilling threats mounting, conservation groups formally petitioned the Service to protect the penstemon in 2002.
"Graham's penstemon is the polar bear of the Uinta Basin," said Tony Frates with the Utah Native Plant Society. "With oil and gas drilling, oil shale mining, and tar sands extraction all ramping up in its habitat, this wildflower urgently needs the protections of the Endangered Species Act."
In January 2006 the Service determined that the penstemon needed to be protected. However, by the end of the same year, the Service abruptly reversed course and claimed that threats had disappeared. The Bureau of Land Management (also within the Interior Department) vigorously opposed Endangered Species Act protection. The Service's decision to deny protections stated, "we have relied heavily on BLM's comments" (71 Fed. Reg. 76026 [Dec. 19, 2006]). Although the Service admitted that 88% of the penstemon's populations were in areas where active oil and gas exploration was taking place, and that all three of the formal scientific reviewers of the proposal to protect the penstemon agreed that protection was necessary, the Service claimed that the BLM's comments had reassured them that the penstemon would be safe from harm.
However, the BLM's comments were vague and did not commit to new conservation actions for the penstemon: "While we cannot describe what the specific conservation measures will be, because they are yet to be developed, they will incorporate effective conservation measures for [Graham's penstemon] and other species" (p. 6 of BLM's formal response to the Service on the January 2006 listing proposal).
"The claim that new scientific information underpinned the decision to withdraw listing of Graham's penstemon as threatened is inaccurate," stated Dr. Vincent Tepedino, retired government scientist and Adjunct Professor at Utah State University. "No such evidence exists." For several years Dr. Tepedino attempted to investigate the penstemon's pollination biology and its dependence on pollinators, but was thwarted by the paucity of blooming plants.
The citizens bringing today's lawsuit were forced to sue the BLM under the Freedom of Information Act earlier to obtain documents that revealed that the authors of the BLM's comments were known as the "Penstemon 'No Listing' Team" and the "penstemon strike team". The BLM developed a "Strategy for Avoiding a Listing of Penstemon" and deliberately downplayed the possibility of oil and gas drilling in the penstemon's habitat. This was a challenge; one of the authors emailed other members of the team saying, "I'm at a loss in how to address the fact that the entire area may be blanketed by oil and gas proposals."
"Luckily there is an easy fix here," said Sarada Krishnan with the Colorado Native Plant Society. "The Service should reinstate and finalize the original protective proposal."
The Endangered Species Act requires that endangered species listing decisions be based solely on the best available science. Yesterday the Interior Department's Inspector General released an investigative report uncovering political interference in 13 other endangered species decisions. He concluded, "action is necessary to restore the integrity of the ESA program, and the morale and reputation of the FWS in the eyes of the public and of Congress."
"Every day more evidence of Interior Department corruption emerges," said Erin Robertson, Senior Staff Biologist for Center for Native Ecosystems in Denver. "With the Bush administration in charge, this little wildflower didn't stand a chance against the drilling and oil shale industries. Now it will finally get its day in court."
Today the national Endangered Species Coalition also released a report titled "Without a Net: Top Ten Wildlife, Fish and Plants Most in Need of Endangered Species Protection", and included Graham's penstemon as an honorable mention.