As sister agencies within the Department of the Interior, the BLM normally consults with FWS on matters relating to plant species that are listed or that are candidate species. The expert in these matters is normally the FWS, not the BLM.

The BLM's 96 page letter submitted under the signature of Director Kathleen Clarke on May 10, 2006 in response to the January 2006 FWS proposal to list claimed that there was no overlap in the habitat of Graham's and proposed energy projects and/or that such actions would not be taking place until 2013 at the earliest, and that the BLM promised that it would retain the species as one afforded "special status" in the event FWS found that ESA protection was not warranted.

Yet the Rocky Mountain News reported on December 28, 2006 that Shell Oil would make a commercial oil shale production decision by 2010 if not earlier. And that Norton herself would, as general counsel for Shell's Denver based unconventional resources division, assist Shell with its Colorado oil shale plans (see Norton joins Shell, will work in Denver: Former Interior chief apt to help in pursuit of Colorado oil shale . Known as Shell's Mahogany Research Project, clearly Shell plans to aggressively pursue oil shale development in Colorado's Piceance basin, home to various rare plant species including the Colorado range extension of Graham's (for a map, see ftp://ftp.blm.gov/pub/Grahams_Penstemon/map_a-1_small.pdf. The appearance of improprieties abound.

There are many more potential uses of oil shale (which is a misnomer in that the rock is not necessarily shale and the substance it contains is kerogen, not oil) other than for energy use. The high quality paraffin "oil" that can be obtained from oil shale has medicinal value. Impacts of oil shale development are typically devastating. References to environmentally friendly processes to extract oil shale such as "ecoshale" and "clean energy" are euphemisms. A review of the "ecoshale" process for example in Redleaf Resources Ecoshale reveals that in step 2 ("mine and place the ore" on page 7), the entire surface area is destroyed. This step is largely simply skipped in the discussion.

Oil shale development within its very limited habitat is a near term serious threat to Graham's penstemon. Not developing oil shale in the habitat in Graham's penstemon will in no way impede Shell's or anyone else's plans. Graham's has a very odd, limited distribution that can be avoided.

Kathleen Clarke resigned on December 28, 2006. Prior to 2002 when Clarke became the first woman to head the BLM, she was the executive director of the Utah Department of Natural Resources. Like Norton and MacDonald, she was not keen on environmental protection.

Freedom of Information Act (FOIA) requests made by CNE soon after the December 2006 decision were not timely nor fully complied with by both the FWS and BLM, delaying an appeal or other action in response to that decision. Meanwhile however CNE sent a notice of intent to sue letter (NOI) to Dirk Kempthorne (Norton's replacement) and Dale Hall, director for the FWS, on February 11, 2007 indicating that it along with interested parties intended to institute legal action for various violations committed in denying the listing of Graham's penstemon under the Endangered Species Act. The unexpected government response was that it felt that no further action was required at that time and that the status of the species would be re-reviewed when/if circumstances warranted.

An interesting thing happened following filing of the lawsuit in 2003: action. Most of what was known in 2002 about the distribution and latest status of Graham's penstemon was based on old information, largely the same information that the FWS had relied on in making it a candidate species in the first place. In a comprehensive report released towards the end of 2005 by Utah Natural Heritage Program botanist Ben Franklin, he indicated that:

There is little new information available documenting the status of many populations, i.e. estimated numbers of plants, habitat condition or observed impacts.

Franklin MA. 2005. Plant information compiled by the Utah Natural Heritage Program: a progress report. Prepared for Utah Reclamation Mitigation and Conservation Commission by Utah Division of Wildlife Resources. 334 pp.

Federal agencies are required to assist in monitoring the status of all listed and candidate species. By regulation the BLM is required to identify habitats (Section 1622), maintain an inventory on a continuous basis (Section 6500), make and monitor objectives for special status species (Section 6600) and monitor populations and habitats to determine whether objectives are being met (Section 6840). No monitoring activity had taken place at all because inventory/survey and basic ecological investigations normally precede monitoring and for some 20 years not even that basic work had been accomplished.

While oil and gas prices remained unsustainably low, the interest in energy development in the Uinta Basin remained low throughout most of the 1980's and into the 1990's. Agencies were therefore not keeping tabs on the species nor moving it to a point where either it might be removed as a candidate or else added finally to the official list of threatened and endangered species. Only once the first lawsuit was filed did things start to really change. Pollination work by Red Butte Garden in 2002 ramped up to a new level with with limited survey work, funded by the BLM, beginning starting in 2004. The FWS started to hold rare plant workshops in Vernal primarily for field survey contractors. The FWS even hired a Vernal based botanist for the first time by late 2007. Field survey work was undertaken by the Utah Natural Heritage Program and in 2008 by The Nature Conservancy (TNC) volunteers. As a result of encouragement and active involvement by UNPS, the Uinta Basin Rare Plant Forum (UBRPF) began (part of the idea of which was to foster alliances and create conservation agreements that might preclude the need for more petitions and lawsuits) in late 2005 and thanks to Joan Degiorgio of TNC the UBRPF met continuously, fueling ongoing attention to the species. As a result, an updated profile of Graham's penstemon and other rare Uinta Basin endemics started to emerge.

Meanwhile the BLM's Vernal Field Office was working on an updated Resource Management Plan (RMP) and released a draft RMP and environmental impact statement in January 2005. On December 13, 2005, the BLM published a federal register notice to list proposed Areas of Critical Environmental Concern (ACEC) encompassing public lands in Utah's Daggett, Duchesne, Uintah and Grand counties. Prior to the comment deadline, CNE and UNPS on February 10, 2006 nominated an ACEC based on the critical habitat acreage proposed in the January 2006 FWS proposal along with a minimum buffer of 300 feet (probably insufficient; for plants with medium sized pollinators, a half-mile buffer zone is likely needed). An ACEC was also nominated in the February 10, 2006 letter for Sclerocactus brevispinus (Pariette or Short-spined cactus).

The BLM completed the RMP which was published in October of 2008 (signed by Utah State BLM director Selma Sierra) after a protest period. One of the protests was the fact that the BLM had failed to even consider the ACEC nominations for Graham's penstemon and Pariette cactus. In the Record of Decision and Approved Resource Management Plan, this protest was upheld:

The last of the granted protest issues identified recommendations for potential designation of two ACECs which were overlooked in the planning process. The BLM has reviewed its administrative record and found that the comments submitted in February 2006 (during a comment period for gathering input on potential ACECs) did include recommendations for designating ACECs to protect Graham's penstemon and Pariette cactus habitat. These recommendations were mistakenly overlooked. Because the BLM did not review or consider the recommendations in accordance with BLM 1613 Manual, the protest is granted and these recommended areas will be considered at the earliest opportunity as part of the next planning process conducted in the Field Office. (p. 18, 24)

Despite acknowledging the mistake, rather than fix the error (particularly in light of the demonstrated threats and the FWS January 2006 recommendation to list the species) the BLM effectively circumvented consideration of ACECs for an indefinite period since the "next planning process" is years into the future (possibly as many as 15 to 20). The BLM will, 10 or 15 years from now, then remember to consider the ACECs recommended in February of 2006? After the habitat could then easily be irrevocably altered?

Lawsuit #2 required

On December 16, 2008 a lawsuit pursuant to the NOI was filed by essentially the same coalition (CNE, UNPS, SUWA and CoNPS) represented by Earthjustice. The primary reason for the delay was due to the lack of timely FOIA responses. CNE submitted a FOIA on January 2, 2007 for documents showing negative impacts to Graham's penstemon. CNE/Earthjustice was forced to file a complaint on December 5, 2007 to compel submission of the information. That case was settled on April 22, 2008.

The most disturbing evidence of interference was the formation of a BLM “Penstemon ‘No Listing’ Team” that was in full operation by the end of January 2006 and which provided information to the FWS that was then accepted as the "best available science." Another reason for the delay related to providing some additional time to see if in fact promises made by FWS/BLM to implement a conservation strategy agreement might come to fruition; and to await the results of 2007 and 2008 field surveys (although these considerations came into play because of the FOIA delay). These surveys showed that the range and overall health of the plant was not any better than previously assessed. Agency conservation strategy talk remained exactly that with no funding, and not even a fully executed agreement by all essential parties. Meanwhile energy impacts were increasing and oil shale lands were continuing to be opened up by the Bush administration.

Per Sec 4(a) of the Endangered Species Act, these are the factors (taken alone or in combination) whereby a species is determined to be endangered or threatened:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.

The economic impacts of an initial listing may not be taken into consideration, i.e. the listing decision must be made based on science only. And where there is a lack of information, the benefit of the doubt is to be given to the species (per FWS handbook of procedures).

Consistently through September of 2006 and for well over 20 years, the FWS maintained that it had sufficient information to list Graham's penstemon. The FWS defines a candidate species as a species for which the Service has sufficient biological status information to propose it for listing as endangered or threatened, but which is precluded by higher priority listing activities. Starting with a notice of review dated 9/27/85 and continuing in its 2/21/90 and 9/30/93 reviews, the species was maintained as a category 1 (the highest category). On 2/28/96 the FWS started its new system whereby category 1 types started to be known simply as "candidates" and it then implemented a listing priority number (LPN) ranking system (on a scale of 1 to 12) and Graham's was given an LPN of 8. The crude system attempts to take into account the uniqueness of a species as well as the magnitude and urgency of its threats. Species with a ranking from 1 to 3 are given the highest priority for listing action. Starting with the 9/19/97 review the species was assigned an LPN of 5 which continued to be the case in the 10/25/99, 10/30/01 and 6/13/02 reviews.

In 2004, the LPN was ramped up to a priority 2.

The potential threats associated with oil and gas development within the habitat of P. grahamii are considered to be imminent in light of the increased seismic survey and petroleum leasing. Therefore, we have elevated the LPN for this species from 5 to 2 because the threats continue to be of high magnitude, and are now considered imminent.

Federal Register Vol. 69, No. 86 May 24 2004 24882-24883

And in 2005, the LPN stayed at a critical level of 2 (the highest level this species could be assigned under the LPN system).

Most of the occupied habitat of P. grahamii is within developed and expanding oil and gas fields with several wells and access roads within the species’ occupied habitat. The location of P. grahamii habitat exposes it to possibility of habitat destruction from off-road vehicle use, as well as road, pipeline, and well-site construction in connection with oil and gas development. Collection of plants and seeds is a significant threat due to the actions of rock-garden enthusiasts to obtain this very attractive plant. The species is heavily grazed by wildlife (rodents, rabbits, and possibly deer) and by livestock (primarily sheep). Livestock trampling is affecting some populations. The threats associated with oil and gas development within the habitat of P. grahamii are imminent in light of the increased seismic survey and petroleum leasing. Therefore, we retain a listing priority number of 2 for this species because the threats continue to be of high magnitude, and are imminent.

Federal Register Vol. 70, No. 90 May 11, 2005 24920 to 249921

In the January 2006 listing proposal, FWS said:

. . . it is apparent that increased development will result in direct and indirect effects to plants and their habitats. The correspondence of P. grahamii habitat with energy reserves, lease areas, and planned actions will likely mean that at least some portion of P. grahamii habitat and populations will be threatened by increased development.

Federal Register Vol. 71, No. 12, Jan. 19, 2006 3163

And in the September 12, 2006 CNOR P. grahamii continued to have an LPN of 2.

But suddenly in the notice published on December 19, 2006 FWS stated that it had in fact "no information demonstrating population declines, range contraction or significant habitat impacts because of energy development" despite the fact that some 63% of its habitat was under oil and gas leases and 88% within seismic exploration areas. Incredibly energy development was "not currently a threat to the species, nor is it likely to become a significant threat in the forseeable future."

Of interest however is the fact that ESA litigation coordinator Chuck Davis noted in an e-mail dated October 25, 2005 to the Salt Lake City field office that the BLM had received a number of Utah and Colorado research and development oil shale proposals as a result of the 2006 Energy Development Act and that if these intersected critical habitat for Graham's that FWS was contemplating proposing, it might evidence an imminent threat. A reply to that e-mail on October 27, 2005 indicated that the local field office had been predicting exploration and development of the Mahogany outcrops.

Public comments to the January 2006 proposal to list were varied. Scientific community support for the listing was strong. Local counties opposed the listing for reasons that were largely due to the lack of understanding just how little acreage the proposal would affect. A number of energy companies including Shell Oil submitted extensive arguments against listing (although these were short in comparison to the extensive BLM position paper).

While it can be logically argued that energy companies should fund a permanently protected Uinta Basin nature preserve in light of the permanent area-wide native plant/wildlife damage that has and will be caused by profit inspired activities in that region as well as to evidence their claims of environmental responsibilty, designation of critical habitat under the ESA does not create a preserve nor a sanctuary nor does it "lock up" any lands so designated. It simply means that future proposed impacts to the habitat, and not just the impact to the species, has to be taken into account.

In all, 26 responses favored listing, 13 were against, and several were neutral or requested extensions. Dr. Elizabeth Neese, who passed away in 2008, indicated that just listing it as threatened was probably not enough, and emphasized how important it is that the habitat be protected. Other responses suggested that the critical habitat acreage be increased. Research ecologist Dr. Susan Meyer, while not having worked directly with this particular species, offered this insight:

Most penstemons are prolific seed producers, flowering in the second year of life and increasing their seed production in each subsequent year. They may not live more than a few years, but in that time an individual plant may contribute many thousands of seeds to a long-lived seed bank. Penstemon grahamii does not appear to follow this pattern. Even in years of reasonable precipitation, many mature plants do not flower, and adult plants do not necessarily flower every year. We do not yet have sufficient demographic information to know whether this pattern is associated with a conservative life history strategy that includes a longer-lived life span, that would compensate for this lack of regular seed production. And, we do not know anything about the persistent seed bank for Penstemon grahamii, other than inferring its existence based on data for other penstemons. But what we know so far suggests that this species may be at greater risk because of reduced ability to form a large seed bank to act as a buffer in the face of population decline, whether this decline is weather-related or caused by anthropogenic disturbance. This may account at least in part for small population sizes.

When I see the status of a plant species like Penstemon grahamii expressed in terms of absolute numbers of plants, I realize that this way of thinking has its basis in demographic work with vertebrates, where all individuals can be enumerated at any given point in time. This can be treacherous thinking for herbaceous plant species, whose above-ground populations can wax and wane with the vagaries of year to year weather variation, but whose persistent seed banks are much more consistently present. This makes plant count data remarkably unreliable as an indicator of population status. I realize that the seed bank work necessary to include this life cycle stage in estimates of population viablity cannot be performed for every plant species at risk. But, if this species is listed, seed bank studies should be an integral part of the recovery plan, and such studies should be undertaken in any case.

Meyer SE. 2006. Letter to Henry Maddux, US Fish & Wildlife Service, in support of Penstemon grahamii listing. Research ecologist, USDA Shrub Sciences Lab. March 19, 2006. 2 pp.

A lengthy comment dated May 17, 2006 by professional geo-scientist Ken Kreckel of Casper, Wyoming (claiming some 30 years of oil and gas exploration experience in the Rocky Mountain region) was submitted that favored listing. His comment (in the form of a report/paper) included maps and diagrams indicating the extent and severity of existing and imminent oil and gas projects on or near Graham's penstemon habitat. He noted in his comment the unparalleled amount of activity in the region of some "nine times the level of the 1980's" most of which is concentrated in Uintah County and that "accounts for about 89% of all wells completed in the state" and provided data to show that the upwards trend would likely continue. He concludes by stating that:

It is clear that oil and gas exploration and development activities are currently impacting the proposed critical habitat units. Drilling is currently underway on some of them while major developments are being undertaken directly adjacent to two units. Recent seismic exploration and the large number of well locations already permitted during 2005 indicate this activity will continue across all four areas. With the recent dramatic upswing of this activity, these impacts are projected to increase in the near future. It is time now to move to provide the necessary protections.

Kreckel K. 2006. Potential for oil and gas development to impact proposed critical habitats for Graham's penstemon [Graham's beardtongue). Submitted May 17, 2006 to US Fish & Wildlife Service. 13 pp.

One extreme example of the kind of unprecedented impacts that have been occurring in eastern Utah and largely out of public view with respect to oil and gas drilling is the extensive drilling in the Pariette Draw/Castle Peak area (this is not Graham's habitat, but it is the habitat of two other federally listed species, Sclerocactus brevispinus and S. wetlandicus). From 20 miles above the earth's surface, Newfield Exploration Company's extensive oil and gas drilling impacts in Duchesne and Uintah counties are readily apparent.

Google Earth image from 20 miles above the earth's surface
Each whitish dot or square is an oil pad. For a closer view, see the next image.
Green line is the Duchesne/Uintah county line.

Google Earth image from 28,670 feet above the earth's surface
Closer view of the right half of the prior image.
Both images dated: 7/13/06 Accessed: 12/27/08.

The point that oil companies, county governments and others fail to either acknowledge or recognize is that this species is already being threatened by energy developments. Oil shale threats and considerations of their imminency aside, oil and gas work is impacting it right now. Roads have already damaged its habitat directly and has specifically destroyed plants, and has fragmented its habitat. Extensive amounts of fugitive dust has no doubt impacted pollinators. It is suffering from grazing impacts and from other herbivory that is affecting its ability to even flower. Extended drought has exacerbated all of the foregoing.

The word "imminent" does not even appear in the Endangered Species Act. Nor does a species have to be shown to be in decline to be eligible for listing. In fact, Graham's penstemon is experiencing unregulated impacts now, foreseeable threats abound, and there is evidence to suggest that it is in decline. It typically takes two or more years to complete the listing process. Designation of critical habitat whether included in any final listing or not will require a separate process and take an additional year or two at least. The preparation and completion of a recovery plan will take five years or longer. The species should have been listed at the end of 2006. The time for action has almost passed.

A threatened species under the ESA is any species (which includes subspecies or varieties) which is likely to become an endangered species within the forseeable future throughout all or a significant portion of its range. An endangered species (including subspecies/varieties) is any species that is in danger of extinction throughout all or a signficant portion of its range.

Graham's penstemon qualifies for listing at least as a "threatened" species under multiple ESA provisions. Scientists are all in agreement that ESA protection is appropriate. Further the amount of acreage to protect its habitat and its associated rare and endemic species is tiny and will not stop any proposed energy projects. Listing will help to ensure that its habitat is avoided and taken into account in energy related activities. Listing will also ensure that the State of Utah will be required to take it into account in projects involving state lands that have some federal connection (since Utah has no laws that protect rare plant species). It will also hold the BLM accountable for the protection of the species without regard to the whims of politics.

On all counts, clearly Penstemon grahamii and its fragile ecosystem require ESA protection, and before even wider scale developments occur, to ensure that this natural treasure will exist for the benefit of future generations.

Postscript and ultimately FWS lawsuit #3

On June 9, 2011, United States District Court (for the District of Colorado) Judge Walker D. Miller signed an order in the civil action* filed in 2008 concluding that the FWS had violated the Endangered Species Act in withdrawing the rule to list Graham's penstemon " . . . by failing to consider the threats in combination, ignoring or disregarding the best available sceitnitifc and commerical information, and relying on undetermined or unspecified conservation emasures which wer enot implemented or established to effective." The plaintiff petition was therefore granted and the Dec. 19, 2006 final rule vacated and the matter "remaned to the FWS for further consideration, with all deliberate speed, of a new Final Rule with respect to whether Graham's penstemon should be listed as threatened under the Endangered Species Act. (*Center for native Ecosystems, Southern Utah Wilderness Alliance, Utah Native Plant Society and Colorado Native Plant Society vs. United States Fish and Wildlfe Service and Ken Salazar, Civil action no. 08-cv-2744-WDM-BNB). Judge Miller has since retired.

UNPS news clip from 2011:

Colorado ruling concludes that FWS violated the ESA in handling a petition to list Graham's penstemon (6/9/11)

 

In the United States District Court
For the District of Colorado
Civil Action No. 08-cv-2744-WDM-BNB


Center for Native Ecosystems,
Southern Utah Wilderness Alliance,
Utah Native Plant Society, and
Colorado Native Plant Society


v.

United States Fish & Wildlife Service and
KEN SALAZAR, in his official capacity as
Secretary of United States Department of the Interior


"For the reasons stated I conclude that FWS violated the ESA in withdrawing the proposed rule to list Graham's penstemon by failing to consider the threats in combination, ignoring or disregarding the best available scientific and commercial information, and relying on undetermined or unspecified conservation measures which were not implemented or established to be effective.

Accordingly, Plaintiffs' petition is granted to the following extent. Pursuant to APA, 5 U.S.C. Sec. 706, the December 19, 2006 Final Rule is vacated and the proposed rule is reinstated. The matter is remanded to the FWS for further consideration, with all deliberate speed, of a new Final Rule with respect to whether Graham's penstemon should be listed as threatened under the Endangered Species Act."

Walker D. Miller
U.S. District Judge
June 9, 2011

The FWS did not however proceed with "all deliberate speed." No specific date was ultimately agreed to proceed with reconsidering Penstemon grahamii and when finally by the following summer some follow-up actions were being contemplated, another rare species that also has been a candidate species since 1983 (White River Penstemon) was thrown into the mix and we were told that they would analyzed together, and despite our objections. While the White River penstemon deserved attention, to now throw it into the mix in a case as complex as this did not make sense (and the reason we were told that they would be combined later turned out to not be the case). The threats to the species were not identical and they did not grow together, and the land ownership was not the same. Including White River penstemon only greatly complicated and in the end further delayed a new final rule for Graham's. This process led to a new proposed listing in August of 2013 but which was withdrawn for a last minute conservation agreement which led to lawsuit #3.

Some of what has occurred since 2013 is to some degree summarized by the following clips that have appeared on our news page.

UNPS news clips from 2014:

Uinta Basin Penstemons in the news (05/06/14)

 

Two press releases concerning Penstemon grahamii (Graham's Penstemon) and Penstemon scariosus var. albifluvis (White River Penstemon) were released today.

 

The Salt Lake Field Office of the US Fish & Wildlife Service issued this May 6 release and yesterday updated the related proposed listing page. Comments are due on the draft analyses (environmental and economic) and on the alternative draft conservation agreement by July 7, 2014. We have numerous concerns with respect to the agreement, but are in the process of reviewing it. It should also be noted that the FWS did not initiate this agreement. If the agreement is adopted, then listing of the two species will not occur.

 

In response to the above, a coalition of groups including UNPS, has today issued this press release.

 

Background information

 

It should be noted that "Beardtongue" and "Penstemon" are synonymous in this context.

 

Responses are due July 7, 2014. See the May-July 2014 Sego Lily pp. 12-14 for more information. Comment here. Search for: FWS-R6-ES-2013-0081 and FWS-R6-ES-2013-0082. Please comment! The conservation agreement as proposed is not acceptable. These species need to be listed.

Uinta Basin Penstemons again in the news (07/08/14)

 

On July 7, 2014, a coalition of seven organizations including UNPS filed a response to the May 6, 2014 rulemaking proposals and re-opening of the August 6, 2013 proposal by the US Fish & Wildlife Service to list Penstemon grahamii (Graham's Penstemon) and Penstemon scariosus var. albifluvis (White River Penstemon) with critical habitat under the Endangered Species Act, or, in the alternative accept a draft conservation agreement.

 

July 8, 2014 press release

 

We strongly support listing these species as proposed on August 6, 2013 by the Service; we strongly oppose acceptance of the draft conservation agreement. We provided specific comments with respect to population counts and surveys assisted with other portions of the coalition comments:

 

Coalition comments submitted July 7, 2014

 

We also submitted two separate comments on July 5, 2014:

Listing/critical habitat/draft economic analysis comment
Draft conservation agreement comment

 

Background information:
Inconvenient Penstemons: Will a Conservation Agreement Result in Less Protection for Two Critically Rare Utah Plants?
(May-July 2014 Sego Lily article by Walter Fertig, see pp. 12-14.)
Rocky Mountain Wild - Graham's Penstemon
Unique Wild Flower Protection Restored (Earthjustice June 10, 2011)
Endangered Species Coalition - Graham's Penstemon
Union of Concerned Scientists Report: BLM prevented listing of an endangered plant, promoted oil shale development in its habitat
(Rocky Mountain Wild, formerly Center for Native Ecosystems, July 10, 2009)
UNPS advocacy history - Graham's penstemon (through 2008)

 

 

FWS reverses itself again: no listing for Uinta Basin (or any) Penstemon species in Utah (08/05/14)

 

The Penstemon strike force teams are again alive and at work in Utah and Colorado. What we didn't realize is that one of those teams was the US Fish and Wildlife Service itself, which again proposed listing but then proceeded to stop its own listing proposal, aided and abetted by a state buy-off.

 

In what amounts to a combination of bullying, political pressure, but also following inappropriate polices and procedures and a complete lack of transparency with known stakeholders and agreements made behind closed doors, the FWS has now reversed itself once again in withdrawing its listing proposal for Graham's penstemon and also for White River penstemon.

 

In response, a CBD hosted press released was released on August 5, 2014. See Feds Withdraw Proposal to Protect Rare Utah and Colorado Wildflowers.

 

Federal Register August 6, 2014 proposed rule to withdraw listing

 

Whether it is Penstemon flowersii (Flowers' penstemon), Penstemon grahamii (Graham's penstemon) or Penstemon scariosus var. albifluvis (White River penstemon), forget about any ESA protection in Utah if you happen to be a beardtongue.

 

A coalition of over six groups is investigating this matter and the incorrect procedure that was followed in this matter. FOIA's have already been again initiated. While our primary role has always been one of collaboration and cooperativeness, we find ourselves working now within now an almost impossible structure of bullheaded and often incompetent federal and state agencies, and an ignorant state legislature and governor who are mainly concerned with clearing the way for energy development. To these individuals and agencies we stand opposed.

Uinta Basin penstemons again in the news 12/30/14

 

Seven groups file NOI re: Uinta Basin penstemons

UNPS news clip from 2015: (note: this was actually the fourth overall, the third in which UNPS was a co-plaintiff)

UNPS again joins in third successive lawsuit filed to protect rare Penstemon species (3/26/15)

 

Lawsuit filed to protect rare Colorado, Utah wildflowers threatened by oil shale mining

 

The first Penstemon grahamii petition was filed in 2002 leading to the first lawsuit in 2003.

UNPS news clip from 2016:

Graham's and White River Penstemons candidate status restored (10/26/16)

 

As a result of a Colorado court decision on October 25, 2016 vacating a prior US Fish & Wildlife Service (FWS) decision made in 2014 to withdraw proposed listings made in 2013 for Penstemon grahamii and P. scariosus var. albifluvis (to be recognized again at the species level, i.e. P. albifluvis as a result of recent studies), these two species now once again are federal candidates for listing under the Endangered Species Act.

 

The FWS was found to have acted contrary to the Endangered Species Act (ESA) by concluding that not yet enacted regulatory measured were "existing regulatory mechanisms," by failing to take into account the agreement's early expiration date in determining whether the species face threats into the "foreseeable future," and by taking into account buffer zones into consideration in the economic analysis.

 

More information

 

Court decision dated 10/25/16 by by Judge William Martinez in civil action No. 15-cv-0615-WJM in the US District Court for the District of Colorado.

 

Brian Maffly article which appeared in the Oct. 27, 2016 edition of the Salt Lake Tribune related to the above:

Judge overrules feds’ refusal to list as endangered Utah wildflowers that grow on oil shale

 

Amy Joi O'Donoghue article which appeared in the Oct. 27, 2016 edition of the Deseret News related to the above:

Federal court backs protections for rare Utah wildflowers

With their candidate status restored again in late 2016, the future nonetheless remains uncertain for these species.

More information

 

Current or former government employees with knowledge of government wrongdoing in this or related actions are encouraged to contact Public Employees for Environmental Responsibility (PEER)

 

See the various press releases on our Archived UNPS news page (this web site)

 

Center for Native Ecosystems: Graham's Penstemon

 

Colorado Rare Plant Field Guide - Penstemon grahamii

 

 

Colorado Native Plant Society. 1989. Rare plants of Colorado. Estes Park, CO: Rocky Mountain Nature Association. 73 pp.

 

After indicating that P. grahamii was not found in Colorado until 1981 after being known from eastern utah since the 1930's this publication notes:
"This beautiful little plant evokes comments of joy and delight when seen for the first time. Its special charm led to its choice as the cover subject for this publication." p. 43

 

Federal Register January 19, 2006 listing proposal

 

KGNU Interview on Denial of Protections for Graham's Penstemon
(12/19/08 radio interview with CNE's Erin Robertson by KGNU in Boulder, Colorado)

 

Red Butte Garden - Graham's Penstemon

 

Salt Lake City Weekly article Rescue Me: A tiny purple wildflower in Utah's oil-shale fields struggles against a "drill-baby-drill" mentality by Holly Mullen (published January 8, 2009, p. 15; posted on-line on that same date)

 

Salt Lake Tribune article Lawsuit filed to protect Uinta Basin Flower by Tom Wharton (on-line version published 12/18/08, printed version 12/19/08, Utah section, page B4)

 

State of Utah Natural Resources DWR Graham Beardtongue

 

The Nature Conservancy - Graham's Penstemon: Mapping a Precarious Future

 

US Dept of the Interior Office of Inspector General Direct investigation report link: December 15, 2008 report of investigation from Earl Devaney, Inspector General, to Secretary Kempthorne

 

US Fish & Wildlife Service Graham's Beardtongue

 

This page as of December 15, 2008 had still not been updated, so it is as if the plant was still a candidate and proposed for listing even though the Plants of the Mountain Prairie Region page had last been updated on December 5, 2008 and the status of several other plants that occur in Utah had been recently changed. Threats section: "Threats to the plant may include loss of habitat due to oil and gas exploration, drilling and field development; and tar sand and oil shale mining. Off-road vehicle use, overuse by domestic and wild grazers, and overuse for horticultural use may also affect some plant populations. These threats, in combination with small population sizes and limited distribution of the plant, result in its vulnerability to natural and human-caused events."

 

US Fish & Wildlife Service News Release of January 19, 2006

 

US Fish & Wildlife Service Graham's beardtongue candidate notice of review documents

 

Utah Rare Plant Guide: Penstemon grahamii (hosted by UNPS)

 

Utah Native Plant Society. 1981. Utah's colorful natives. Illustrations by Kaye Thorne. Text by Duane Atwood and Kaye Thorne. Salt Lake City, UT: Sun Lithographing Company. 8 pp. (unpaginated). Funded by UNPS, State Arboretum of Utah, University of Utah Lallapalooza, and Children's Art Discovery Project.

 

UNPS Sego Lily articles

 

Fertig W. 2007. No listing for two rare Utah plants. Sego Lily 30(2): 1,4-6.
Available on-line at http://www.unps.org/segolily/Sego2007MarApr.pdf

 

Frates T. 2004. Goodrich on Badlands. Sego Lily 27(6):2,4-6.
Available on-line at http://www.unps.org/segolily/Sego2004NovDec.pdf
Extended version available at: http://www.unps.org/miscpdf/GoodrichOnBadlands.pdf

 

Robertson E. 2007. Conservation groups respond to USFWS reversal on listing Graham's penstemon. Sego Lily 30(3):4.
Available on-line at http://www.unps.org/segolily/Sego2007MayJun.pdf

Letters submitted to editor of the Salt Lake Tribune on 12/19/08

Subject: Rare Plants on Oil Shale lands

To the editor:

I have been privileged to study native plants in Utah over the past 35 years and am writing in response to your article on Graham's penstemon (T. Wharton/SL Trib 12/18). This spectacular wildflower serves as a poster child for a cluster of more than 15 plants found only in the canyons and hills of the Uinta Basin. That we are rushing to grind up the rocks on which these plants grow makes no sense.

The BLM manages most of these lands, and by setting aside Areas of Critical Environmental Concern, they could create new tourist destinations. The Uinta Basin is the place where dinosaurs roamed - a beautiful landscape that holds promise for economic development from tourism. Visit Vernal, Roosevelt, or Duchesne and drive south into the remote reaches of the Tavaputs Plateau. Any support you give to the conservation of these wild areas will reap rewards for generations to come.

A National Parks Conservation Association study (SL Trib Editorial 12/19) reports that for every $1 invested in the National Park budget, $4 is returned to state and local economies. Our legislators need to take the long view of economic development by recognizing that Utah's greatest resource is the beauty of its land and the resilience of its people.

Leila Shultz
Logan, Utah

 

(Note: the Tepedino editorial below was published in the Dec. 26, 2008 issue of the Salt Lake Tribune but with some edits made by the Tribune staff that were either odd or wrong. For example, "oil and gas lands" was changed to "oil-shale outcrops" and "eastern Utah and western Colorado" was changed to "northeastern Utah and northwestern Colorado" which is somewhat misleading. Some sentences were redacted. So below is the editorial as originally submitted.)

To the Editor:

Thank you for writing about the plight of Graham's penstemon in the Uinta Basin.

How, in a short letter, can one persuade a skeptical reader that a rare species of wildflower has value?

Developing the oil shale lands of eastern Utah would require overcoming staggering obstacles: 1) devising a profitable, site-specific, methodology to extract oil from shale (which hinges on oil prices roughly double those we were paying scant months ago); 2) finding a source of the mammoth amounts of water any such process will require; 3) contriving a way to keep the hazardous byproducts of extraction from our aquifers; 4) financing a method of product delivery to our centers of distribution and commerce that will then burn it of an hour, and move on to other sources and other fuels.

But even if we resolve these difficult issues, what of that glorious native wildflower, Graham's penstemon, in all the world, known only from the oil and gas lands of eastern Utah and western Colorado?

Are we content knowing we've converted all its known populations to car exhaust for a few idle moments' diversion? Is this the best we can do with the gifts we've been granted?


Vincent Tepedino
Logan, Utah

Copyright 2008-2016 Utah Native Plant Society and Tony Frates
Pictures are the property of the respective photographers
The direct link for this page is http://www.unps.org/rareplants/penstemongrahamii.html
First published on the UNPS web site on December 12, 2008 and updated on December 16, 19, 20, 26, 27 2008; January 9, 2009
Postscript and lawsuit #3 section added August 2015.
Additional postscript added October 2016.

CSE name-year style citation for this article:

Frates T. 2016, 2015, 2009, 2008 [cited {access date}]. Profiles in advocacy: Penstemon grahamii [Internet]. Salt Lake City, UT: Utah Native Plant Society. Available from: http://www.unps.org/rareplants/penstemongrahamii.html