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BLM prevents listing of an endangered plant, promotes oil shale development in its habitat

In May 2006, the Bureau of Land Management (BLM) provided a misleading scientific analysis of the location of anticipated oil and gas drilling activities and misrepresented the threat of future oil shale development to the U.S. Fish and Wildlife Service (FWS). The BLM's analysis was successful at stopping the FWS from protecting a rare wildflower under the Endangered Species Act (ESA).  In December 2006, the FWS withdrew their proposal to list Graham's penstemon (Penstemon grahamii, also known as Graham's beardtongue), as a threatened species under the ESA. The FWS "relied heavily" on the BLM's comments in its decision to withdraw the proposed listing.1

Protections were proposed, then withdrawn

Graham's penstemon is a rare wildflower that grows exclusively on oil shale outcrops in the Uinta Basin in Utah and a small, adjacent portion of Colorado—a region with ongoing oil and natural gas development and potential oil shale development.2  Unlike traditional oil and gas resources, oil shale is a sedimentary rock that releases petroleum-like substances after the rock is mined, crushed, and heated.3 Oil shale extraction involves the large-scale disturbance of mined lands and impacts wildlife and air quality.4

Although Graham's penstemon had been an official candidate for listing under the ESA since 1975, for various reasons the FWS took no action on listing the plant until a court settlement required the FWS to issue a decision on the plant's status by January 2006.5 

The FWS proposed listing Graham's penstemon as a threatened species with designated critical habitat on January 19, 2006.6  In the proposed rule, the FWS stated that habitat destruction and degradation due to energy development "pose a serious threat to long-term viability" of the species.  The proposal cited pressure from Congress and economic interests in developing oil shale resources, making the plant "highly vulnerable" because of potential oil shale development.7 The FWS also asserted that, while conservation measures in response to oil and gas development had been effective to date, future increases in oil and gas development would result in habitat loss and fragmentation.8

As BLM manages 60% of Graham's penstemon habitat, the FWS needed information from the BLM to determine the likelihood and effects of future energy development. In response to the FWS's request for information, the BLM submitted extensive comments on May 10, 2006.9 

In response, the FWS reversed its January 2006 opinion and withdrew the proposed listing on December 19, 2006.10  The FWS's decision not to list the plant went against the assessments of three independent scientists who were asked to review the proposed listing in early 2006.11 Instead of following the reviewers' opinions, the FWS "relied heavily" on BLM's comments to justify its withdrawal.12  BLM internal documents and further investigation demonstrate that the BLM's explicit intent was to stop the listing of Graham's penstemon under the ESA. 

BLM's "No Listing" Team

The BLM began drafting comments in response to the proposed listing of Graham's penstemon in early 2006.  An anonymous source told the Union of Concerned Scientists (UCS) that the BLM's goal was to prevent the listing of Graham's penstemon as a threatened species.13 

Internal BLM emails, obtained through a Freedom of Information Act (FOIA) request, indicate that Dwight Fielder, the division chief of Fish, Wildlife and Plant Conservation at the BLM, and Karl Stein, a BLM fisheries biologist, were involved early in the process of constructing BLM's comments. In a January 26, 2006 email, Fielder told Stein that at a recent briefing, "Kathleen [likely Kathleen Clarke, former BLM director], Jim Hughes [former BLM Deputy Director for Programs and Policy], and Larry Benna [former BLM Deputy Director for Operations]" agreed that the BLM needed a "tight strike team" to prevent the plant's listing.14 

In his reply to Fielder, Stein suggested that they meet with the FWS "to see what additional information they would need to see in the record to prevent a listing."15 As further confirmation of the BLM's intent, an email between members of the BLM comment writing team contained "Penstemon "No Listing" Team" in the subject line.16

The BLM's final comments used a misleading analysis of oil and gas well locations and misrepresented the likelihood of future oil shale development to convince the FWS that the threats to the species were not severe enough to warrant listing.

BLM's misleading analysis oil and gas well locations

In their initial proposal to list Graham's penstemon, the FWS argued that increases in traditional oil and gas exploration would result in habitat loss and fragmentation, thereby endangering the plant.17 A March 1, 2006 email from George Diwachak, a Utah BLM environmental scientist and member of the BLM comment writing team, to Stein and others reveals his concerns about the number of estimated proposed oil and gas wells in the penstemon area. Diwachak stated he was "at a loss in how to address the fact that the entire area may be blanketed by oil and gas proposals."18

The BLM's comments downplay the anticipated effects of increased oil and gas development on Graham's penstemon by providing a misleading analysis of the location of the plant in relation to the likely locations of oil and gas wells.  According to the BLM, the majority of the plant's locations occur on slopes between 2 and 25 degrees, and that the majority of oil and gas wells in the plant's region occur on slopes less than 10 degrees. Using this information, the BLM asserted that oil and gas wells would not "generally" be located in the same place as Graham's penstemon; the BLM argued that because the plant grows on steeper slopes than the ideal locations for oil and gas wells, thus plant occurrences were not "spatially coincident" with oil and gas well locations.19  Yet the BLM's own data do not support their conclusions, showing that more than half (about 62%) of the plant's area has slopes of less than or equal to 10 degrees.20

Dr. Leila Shultz, a professor at Utah State University chosen by the FWS to be a peer reviewer for the proposed threatened listing of Graham's penstemon, stated that she was "stunned by any allegation" that Graham's penstemon locations are "generally" on slopes too steep to accommodate oil and gas wells. Dr. Shultz's reaction to the BLM's claim was: "This is simply not true."  She described that the populations she has mapped in the past were "primarily on flat or gently sloping sites," and that the plant's habitat "looks as if it might already have been cleared and prepared as a site for oil and gas wells."21

BLM's bait and switch of possible oil shale development

The BLM also used their comments to dispel the FWS's concerns about oil shale development in Graham's penstemon habitat. A document embedded within a draft version of the BLM's comments and titled as "Potential Strategy for Avoiding a Listing" states that if the BLM "can show that the footprint of the plant and its habitat is outside of the zone of probable development, threats from energy development can be minimized."22

In their final comments, BLM stated that "no overlap exists between proposed and potential future oil shale/tar sands development and species habitat" for Graham's penstemon.23 BLM asserted that commercial oil shale production would likely not begin until at least 2013.  Although the BLM repeatedly pointed to economic and technological uncertainties in oil shale production, they also stated that oil shale production is expected to become commercially viable within the next 20 years.24

The BLM assured FWS that they would develop conservation measures to protect Graham's penstemon from future oil shale and tar sands development through their "recently initiated Programmatic Environmental Impact Statement (PEIS) for the Oil Shale/Tar Sands Commercial Leasing Program…"25 However, the BLM admitted that they could not "describe what the specific conservation measures will be."26

Despite assuring the FWS in 2006 that future oil shale development would not threaten Graham's penstemon, the BLM issued its PEIS in November 2008 and opened up a large portion of the plant's range as available for commercial oil shale leasing.27 The FWS protested in its own set of comments on the PEIS, stating that they had withdrawn their listing proposal in part because they were "assured by the BLM that surface mining was an unlikely development scenario for oil shale development."28 

FWS pointed out that the areas available for lease applications for development included "over 90 percent" of formerly proposed critical habitat for Graham's penstemon and recommended that BLM avoid these areas until previously discussed conservation measures could be implemented.29 In the PEIS, BLM acknowledged the overlap between Graham's penstemon and lands available for leasing and described a few conservation measures that would be taken in the future to protect the plant.30

Thus, although the BLM assured the FWS in 2006 that potential future oil shale development would not occur in proposed critical habitat for Graham's penstemon, the BLM had already initiated a leasing process that would set such oil shale development in motion.

BLM inflated uncertainty in their comments

Another tactic the BLM employed to calm FWS concerns about Graham's penstemon pollinator habitat was the insertion of conditional language in the BLM's final comments. A March 7, 2006 email from a member of the BLM team to Karl Stein demonstrates that BLM was aware that the authors of a BLM-funded pollination study of Graham's penstemon were concerned about protecting the plant's pollinators. The email stated that one author of the BLM-funded study expressed concerns that no new plants were being added to the current populations and also indicated the need for ecosystem management for plant pollinators.31

Despite this information, drafts of the BLM comments demonstrate that the BLM used edits to downplay the effects of energy development on pollinators and pollinator habitat. A draft from February 23, 2006 stated that dirt road networks, pipelines, and transmission corridors "create a potential for disturbance..."32 The March 13 draft contained almost the same sentence, but it is qualified by stating "could create a potential for disturbance…"33 (underline is present in the draft and indicates insertion). The drafts of the BLM's comments contain additional examples of inflated uncertainty; BLM retained these conditional language insertions in their final comments.34

Disagreement among BLM's comment writing team

Embedded within a draft version of the BLM comments obtained through a FOIA request are notes on the proposed listing, indicating that at least one member of the penstemon "strike team" believed the species should be listed under the ESA. The notes begin by stating that "Listing of this species in light of the pending and ongoing activities of oil and gas development is probably warranted" because there are currently inadequate conservation measures to protect the species. 35

The notes continue with descriptions of the threats to the plant.36 Changes in the landscape due to increases in roads and infrastructure, thus causing the influx of invasive weeds, habitat fragmentation, and loss of penstemon pollinators are described. The notes suggest conservation measure that could be used to mediate some adverse effects of energy development.37 These notes did not appear in the final BLM comments.

Conservation groups sue to protect Graham's penstemon

A coalition of conservation groups, including Center for Native Ecosystems and Utah Native Plant Society, filed a complaint against the FWS in December 2008, citing that "In withdrawing the proposed rule, FWS ignored the best scientific information available, disregarded the opinions of its own experts, relied upon unproven, voluntary conservation measures, and failed to defend its dramatic change in position, all in violation of the ESA…"38

A FWS assistant field supervisor told the The Salt Lake Tribune in December 2008 that, based on information from the BLM, the FWS determined that Graham's penstemon "did not need to be listed at that time."39 She continued, stating, "…the information we received was that the potential for oil development was out in the future and that we were not sure if it was economically viable."40

Although Interior Secretary Ken Salazar withdrew oil shale leases that were pushed through just before President Obama took office, he expressed his intent to solicit for new oil shale leases in the near future.41  The exact fate of Graham's penstemon is uncertain, but as a result of the BLM's successful campaign against listing the plant under the ESA, the plant does not have all the protections that the best available science indicates that it needs.

1. U.S. Fish & Wildlife Service (FWS). 2006. "Withdrawal of Proposed Rule to List Penstemon grahamii (Graham's beardtongue) as Threatened With Critical Habitat." Federal Register, vol. 71, no. 243, p. 76024-76035, December 19.
2. Red Butte Garden. "
Graham's penstemon." University of Utah
; Utah DNR. "Graham's beardtongue."; Center for Native Ecosystems. "Graham's Penstemon."
3. Oil Shale and Tar Sands Programmatic EIS Information Center. "About Oil Shale."
4. Ibid.
5. U.S. Fish & Wildlife Service. 2006. "
Proposed Threatened Status for Penstemon grahamii (Graham's beardtongue) With Critical Habitat." Federal Register, vol. 71, no. 12, p. 3158-3196, January 19.
6. Ibid.
7. Ibid.
8. Ibid.
9. U.S. Bureau of Land Management (BLM). 2006. "
Formal Response to the U.S. Fish and Wildlife Service proposed Threatened Status for Penstemon grahamii (Graham's beardtongue) With Critical Habitat." May 10.
10. FWS withdrawal of proposed listing. 2006.
11.
Peer Review request from Utah FWS State Office and Peer Reviewer replies. 2006; FWS withdrawal of proposed listing. 2006.  
12. FWS withdrawal of proposed listing. 2006.
13. Anonymous source. UCS interview, February 2009.
14. Fielder, D. 2006.
Email to Karl Stein. January 26. Document obtained through a Freedom of Information (FOIA) request by the Center for Native Ecosystems, the Southern Utah Wilderness Alliance, the Utah Native Plant Society, and the Colorado Native Plant Society provided to UCS.
15. Stein, K. 2006. Email to Dwight Fielder. January 26. Document obtained through a Freedom of Information (FOIA) request.
16. Diwachak, G. 2006.
Email. February 6. Document obtained through a Freedom of Information (FOIA) request.
17. FWS proposed listing. 2006.
18. Diwachak, G. 2006.
Email to Karl Stein and others. March 1. Document obtained through a Freedom of Information (FOIA) request.
19. BLM formal response to proposed listing. 2006.
20. Ibid.
21. Shultz, L. UCS email correspondence, March 23, 2009.
22. "
Potential Strategy for Avoiding a Listing of Penstomen [sic]" Document obtained through a Freedom of Information (FOIA) request.
23. BLM formal response to proposed listing. 2006.
24. Ibid.
25. Ibid.
26. Ibid.
27. U.S. Bureau of Land Management. 2008. "
Approved Resource Management Plan Amendments/Record of Decision (ROD) for Oil Shale and Tar Sands Resources to Address Land Use Allocations in Colorado, Utah, and Wyoming and Final Programmatic Environmental Impact Statement." November.

28. U.S. Bureau of Land Management. 2008. "Proposed Oil Shale and Tar Sands Resource Management Plan Amendments to Address Land Use Allocations in Colorado, Utah, and Wyoming and Final Programmatic Environmental Impact Statement, Volume 4: Comments and Responses." September.

29. Ibid.
30. U.S. Bureau of Land Management. 2008. "
Oil Shale and Tar Sands Final Programmatic Environmental Impact Statement (PEIS)." September
.
31. 2006.
Email to Karl Stein. March 7. Document obtained through a Freedom of Information (FOIA) request.
32. BLM comments draft from 02/23/06 document #85. Document obtained through a Freedom of Information (FOIA) request.
33. BLM comments draft from 3/13/06 document #83. Document obtained through a Freedom of Information (FOIA) request.
34. BLM formal response to proposed listing. 2006.
35. BLM comments draft from 02/23/06. Document obtained through a Freedom of Information (FOIA) request.
36. Ibid.
37. Ibid.
38. Parish, M. 2008. "Complaint for Declaratory and Injunctive Relief." Earthjustice, December 16.
39. Wharton, T. 2008. Lawsuit filed to protect Uinta Basin flower. The Salt Lake Tribune, December 18.
40. Ibid.
41. U.S. Department of the Interior. 2009. "
Secretary Salazar to Offer a New Round of Oil Shale Research, Development and Demonstration Leases." News Release, February 25.

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