Profiles in advocacy:
Penstemon grahamii

(Graham's penstemon; Graham's beardtongue; Uinta Basin penstemon)

by Tony Frates
Utah Native Plant Society

A long history of UNPS collaborative advocacy efforts

Penstemon grahamii was one of 3,000 U.S. vascular plant species included in the Smithsonian Institution report to Congress of 1974 originally mandated by Section 12 of the Endangered Species Act (ESA) and published ultimately as part of a status review in the Federal Register on July 1, 1975. The Smithsonian report was treated by the Department of the Interior as a technical "petition" and it thus became the initial working document for jump-starting the objectives and requirements of the Act passed on December 28, 1973. Graham's penstemon was accorded a proposed status of endangered in the 1975 status review.

UNPS sprang to existence in the fall of 1978. Prior to 1980, UNPS members compiled a list of globally "endangered and threatened plants" that occur in Utah for consideration by federal agencies. Penstemon grahamii was initially placed, starting with that very first list, in the category of "endangered" with a critical habitat recommendation. This first UNPS recommended list was published in the January 1980 UNPS newsletter.

Dr. Elizabeth J. Neese who sat on our first board of directors had already begun her extensive studies of the flora of the Uinta Basin (and also became a Penstemon expert) and regularly participated in annual Utah rare plant conferences held throughout the early to late 1980's (and in the 1986 Uinta Basin Flora which she co-authored, she described this species as "Endemic, uncommon") as did botanical expert Dr. Leila M. Shultz (a current UNPS board member in 2007 and 2008; and also one of our earliest board members) who studied the rare and endemic plants of the Uinta Basin (specifically including P. grahamii in 1978 and 1979) and who also regularly participated in annual UNPS rare plant reviews that consistently maintained P. grahamii as a species of great concern.

Penstemon grahamii late May, 1979 by Leila Shultz
Penstemon grahamii Copyright 1979 Leila Shultz

In one of our earliest publications in 1981, Utah's Colorful Natives, Graham's penstemon was one of the seven illustrated plants.

Penstemon grahamii drawing by Kaye Thorne
Penstemon grahamii illustrated by Kaye Thorne as it appeared in Utah's Colorful Natives (1981)
(click for larger image)

UNPS board members and committee chairpeople in the 1980's also included Uinta Basin expert Sherel Goodrich, Dr. Stanley Welsh and Dr. Duane Atwood, all of whom made numerous field visits to the plant's habitat.

A small, (short-lived?) perennial plant often only a few inches (up to about 8 inches) tall, and occurring only in the Uinta Basin primarily across a narrow band in the southern end of Uintah County (and barely entering Carbon and Duchesne counties) and to a smaller degree in adjoining (but some 35+ miles north of Utah occurrences) Rio Blanco County in Colorado, it is referred to in the A Utah Flora series as follows:

This is one of our most distinctive penstemons, often growing with Astragalus lutosus, Aquilegia barnebyi, Cryptantha barnebyi, and other rare species on peculiar, oil-rich substrates. This is a gorgeous, large-flowered penstemon of the white shales in eastern Utah . . .

Welsh SL, Atwood ND, Goodrich S, Higgins LC [eds.]. 2008. A Utah flora (4th ed., revised). Provo, UT: Brigham Young University Press. 1019 pp. (The same comment was made in the earlier 1993 and 2003 editions.)

Links to pictures of just a few of the rare and endemic species that occur with Graham's penstemon follow. These pictures are courtesy of Dr. Leila Shultz and were taken in 1979 and included in her Uintah Basic Endemic Flora attachment submitted to the FWS as part of a peer review.

Aquilegia barnebyi (Shale columbine)
Aquilegia barnebyi habitat
Astragalus lutosus (Dragon milkvetch)
Cryptantha barnebyi habitat (Barneby's cryptanth) by J. Shultz
Cryptantha grahamii (Graham's cryptanth)
Eriogonum ephedroides (Ephedra buckwheat)

UNPS held a rare plant conference on December 4, 1981 at BYU during which Penstemon grahamii was placed in the second highest category (Priority, High 2).

These early activities in part led to Graham's penstemon being published by the US Fish & Wildlife Species (FWS) first as a category 2 candidate species on December 15, 1980, and ultimately as a full priority (category 1) candidate species on November 28, 1983. (The FWS dropped the designation of category 1, 2 and 3 candiate species per a notice of review published February 28, 1996, and retained primarily only the category 1 species; the important candidate species program has been largely inactive and only sparingly used since that time).

Dr. Atwood, as an early volunteer UNPS activity, manually mapped known rare plant occurrences throughout the state including those of Graham's penstemon which were later used in monitoring proposed projects in the areas of its habitat.

UNPS conservation committee activities relative to Graham's penstemon began to occur at least as early as August of 1983 when huge land transfers from the federal to state government began to take place that included lands suspected of containing Graham's penstemon.

Efforts as early as mid-1980 were made by UNPS co-founder Richard Hildreth (who later became the first director of Red Butte Garden) to preserve P. grahamii seeds and to encourage research into its horticultural requirements.

Sheep and cattle grazing was a frequently observed threat to the species noted in extensive survey work starting in early May to mid-June of 1982 by Elizabeth Neese, Frank Smith, Betsy Neely, Kaye Thorne, Kezia Snyder, Ron Kass, John Trent and others. Also frequently classified as an "apparent threat" was oil shale development. The only reason for their category 2 status recommendation at that time was due to the relatively wide distribution of the species as compared to some other oil shale endemics; they recognized that an apparent and foreseeable threat to the species throughout its restricted range was energy development.

The grazing impacts remain unaddressed to the present time and have added to the decline of the species. Graham's penstemon evolved on harsh lands upon which grazing animals of any size were historically absent, and which cannot be providing cows or sheep with any significant sustenance. They should therefore not be allowed on these soils. Yet Red Butte Garden conservation botanist Jennifer Lewinsohn noted a general decline at one study area due to overgrazing in 2005, and that sites visited in southern Uintah County that year were either too small or too heavily grazed to be able to conduct pollination studies.

Then UNPS chairperson Dr. Susan Meyer visited the plant's habitat and photographed the species in flower while visiting with a Vernal group that was interested in becoming a new UNPS chapter in May of 2001.

Penstemon grahamii May, 2001 by Susan Meyer
Penstemon grahamii Copyright 2001 Susan Meyer

UNPS concern and related educational work in connection with this species has continued unabated, accelerating when significant and feared energy development impacts began to occur and particularly as the long dormant interest in oil shale was revitalized. For each of the past several years, UNPS members have helped to survey Graham's penstemon habitat in collaboration with other organizations and agencies. Since the fall of 2005, UNPS has been very actively involved in The Nature Conservancy's Uinta Basin Rare Plant Forum, and this high priority species has been frequently discussed.

UNPS Salt Lake Chapter president and board member Kipp Lee documented some off-road vehicle impacts to Graham's habitat during the fall of 2005.

Penstemon grahamii habitat on Tavaputs Plateau with OHV damage Oct. 2005 by Kipp Lee
The beginning of OHV damage in the vicinity of Penstemon grahamii habitat
Copyright 2005 Kipp Lee

There is no evidence to suggest that Graham's penstemon enjoys disturbance. Its very existence on barren oil shale knolls suggests that minimum habitat disturbance is required in order for its seedlings to become established. An unintended consequence of miles of new and improved roads for large trucks associated with energy exploration and development is the resulting increased access by recreational vehicles (as well as the introduction of noxious weeds and alien plants). OHV users simply need to stay on existing roads and trails to avoid significant ecological problems. The nature of Graham's habitat is less of an attractive nuisance than it is for some species, but clearly OHV impacts can be expected to increase, and directly as a result of energy development related roads.

Roads in Penstemon grahamii habitat July 2006 Google Earth
Google Earth image showing a tapestry of roads in Graham's penstemon Uintah Co. habitat
From an elevation of 12,698 feet. Image date: 7/13/06. Accessed 12/27/08.

As a result of a UNPS member assisted survey on May 27, 2006, direct impacts to Penstemon grahamii were noted as a result of roads leading to oil and gas pads, and related impacts. Contrary to BLM assertions that P. grahamii habitat is primarily on steep cliffs where oil and gas pads would not be placed, we noted exactly the opposite. Plants in fact typically occur on flat terrain to gentle slopes with a grade of usually less than 20%.

Penstemon grahamii road and pipeline disturbed habitat in Sunday School Canyon May 27, 2006 by Tony Frates
Graham's penstemon plants are being destroyed and habitat disturbed by roads for oil & gas pad developments
Copyright 2006 Tony Frates

UNPS member survey results were provided to both the local FWS office as well as to the Utah Natural Heritage Program.

In addition to all of the current and future energy projects that this species will not be able to endure, a perfect storm of other factors is adding to its calamity. For reasons that are not understood (recent extended drought coupled with overall climate change?), the species in some years produces almost no flowers (which in turn has greatly thwarted work on its pollination ecology). And in those increasingly rare years when it does flower, some insect or critter eats the barely opened flowers.

Penstemon grahamii trying to flower May 27, 2006 by Tony Frates
Graham's penstemon in Utah produced almost no flowers in 2006. 2007 was also a poor year.
Copyright 2006 Tony Frates

Botanists have noticed that when the plant does now flower, it typically happens as much as a month or more earlier than it did just two or three decades ago. The erratic flowering is creating yet another problem. While in 2008 Graham's penstemon finally had a good flowering year, visitation by pollinators appeared to be low. The inconsistency of its flower production has led bee expert Dr. Vincent J. Tepedino in a 2008 field visit report to comment:

I believe that flowering by P. grahamii is so unreliable from year-to-year that flower visitors, especially specialists, must frequently be supported by other plant species. Thus P. grahamii may be "parasitizing" other plant species for pollinators.

Tepedino VJ. 2008. Report on flower-visitors to Penstemon grahamii and P. pachyphyllus. Unpublished report. 2 pp.

This also poses a serious problem when attempting to conduct rare plant surveys and in assessing potential energy and related impacts. A rule that is still often ignored by land managers is that, especially with a non-woody vascular plant species (i.e. "wildflowers" ), surveys for potential impacts to rare plants must typically occur during some obvious aspect of its reproductive cycle. For most species this is when it is in full flower. This is also the case for Graham's (even experienced botanists often cannot otherwise identify it in the field in light of look-a-likes at certain vegetative phases) and that timing a survey for that reason alone can be difficult enough inasmuch as the flowering time varies from year to year. But a rule that is almost always ignored by land managers is that species like these typically can greatly fluctuate in terms of raw numbers from year to year and in some years at a given site can be practically non-existent. One year you might visit a spot where a given species is easy to find. The next year you visit the same spot and may not be able to find a single plant. Or in the case of Graham's, the plants might be there but impossible to easily identify because of their inconsistent flowering. As a result, proper surveying is a multi-season, multi-year proposition and not a single year, single season event (as is usually the case).

Penstemon grahamii May 27, 2006 by Tony Frates
Graham's penstemon is a small plant that can be difficult to identify when not in flower.
Copyright 2006 Tony Frates

UNPS forced to become a co-petitioner

FWS inaction coupled with resurgence of energy development in the Uinta Basin led to UNPS, for the first time in its history, joining in a petition and subsequently in a lawsuit. Based on a 121 page listing petition prepared and primarily authored by biologist Erin Robertson of the Center for Native Ecosystems (CNE), UNPS joined CNE, Southern Utah Wilderness Alliance (SUWA), the Colorado Native Plant Society (CoNPS), and the American Lands Alliance in a petition for listing which was filed on October 8, 2002.

When no response to the petition was filed, the coalition filed suit in 2003. A court settlement required the FWS to review the information and publish a decision in response to the petition and to publish a final determination by December of 2006.

On January 19, 2006, the FWS published a proposal to list the species as threatened under the Endangered Species Act, with a provision to designate some 3500 acres of critical habitat.

Instead of publishing a final determation to list the species, the FWS instead made an abrupt change and on December 19, 2006 withdrew its proposal and in essence denied the petition. This also had the effect of ending the candidate status of Penstemon grahamii.

The proposal to list Penstemon grahamii was derailed by high level interference within the department which included the assemblage of a BLM team under direction from then Interior Secretary Gale Norton whose specific assignment was to adversely comment on the listing proposal. This was in contradiction to not only the assessment of the local FWS office, plus also the peer review input of three scientists including Dr. Leila Shultz who said in a letter to the FWS in Salt Lake City:

. . . it is imperative that a well-planned program of conservation be developed for Penstemon grahamii.

The listing package offers, in my view, an excellent compromise between extreme non-disruptive conservation on the one hand, and 'rip up everything' development that would likely cause the extinction of Graham's Penstemon as well as a number of other Uintah Basin endemic plants.

Inasmuch as energy development is likely to increase in the very near future, I believe it is imperative that a well-planned program of conservation be developed for Penstemon grahamii. The listing package lays the groundwork for this by delineating critical habitat and proposing areas for conservation. The proposed listing for Penstemon grahamii is both timely and well-executed. The listing package offers, in my view, an excellent compromise between extreme non-disruptive conservation on the one hand, and 'rip up everything' development that would likely cause the extinction of Graham's Penstemon as well as a number of other Uintah Basin endemic plants.

Fortunately, preservation of the Penstemon grahamii habitat should serve to save other species associated with the plant.

The proposed ruling will not preclude energy development or, in my opinion, offer significant hindrance.

Shultz LM. 2006. Letter to Henry R. Maddux of US Fish & Wildlife Service. Research Professor, Utah State University. May 16, 2006. 2 pp.

Norton resigned as Interior Secretary in March of 2006 under circumstances that were less than exemplary. Her ill-experienced deputy assistant secretary whom she appointed, Julie MacDonald, resigned in disgrace in May of 2007. While there is no direct evidence that MacDonald was involved with Graham's penstemon (in a December 15, 2008 Associated Press story, Report: Endangered species decisions tainted, MacDonald is implicated as having tainted "nearly ever decision made on the protection of endangered species over five years" according to the latest inspector general report and if true, then MacDonald most likely participated in improper interference with Penstemon grahamii), she was involved in many other similar cases of improper interference. At at minimum, Norton herself instigated the interference in the case of Graham's.

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 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.

Newfield oil and gas fields in Pariette Draw/Castle Peak area
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.

Newfield oil and gas fields in Pariette Draw/Castle Peak area
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


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
Frates T. 2004. Goodrich on Badlands. Sego Lily 27(6):2,4-6.
Available on-line at
Extended version available at:
Robertson E. 2007. Conservation groups respond to USFWS reversal on listing Graham's penstemon. Sego Lily 30(3):4.
Available on-line at

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
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: