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A federal judge intends to vacate a decision by the U.S. Fish and Wildlife Service to not list two rare desert wildflowers whose range overlaps with Utah's rich oil shale deposits in Uintah County.
Denver-based U.S. District Judge William Martinez faulted the decision's reliance on a conservation agreement that he doubts would adequately protect Graham's and White River beardtongue, issuing a decision Tuesday that could upset a landmark deal to keep the plants off the endangered species list.
The FWS and federal land agencies hammered out the conservation agreement two years ago with Colorado and Utah, counties with oil shale potential, and the Utah School and Institutional Trust Lands Administration (SITLA), pulling concessions from these pro-development stakeholders intended to mute the potential that oil shale mining would displace beardtongue.
Martinez found some of the agreement's provisions inadequate and is giving its signatories several months to work with environmentalists to fix them. If a deal can't be reached, the judge will enter the order, which could lead to a listing of the two wildflowers — something some environmentalists would like to see.
Such groups hailed his decision, which they say repudiates a flawed conservation plan.
"It's deeply troubling that, in the face of global climate and extinction crises, the U.S. Fish and Wildlife Service would illegally deny protections to imperiled species in order to accommodate the most pollution-intensive fossil fuel on earth," said Taylor McKinnon of the Center for Biological Diversity. "This is dangerously backward public policy."
The center is among seven environmental groups, including the Southern Utah Wilderness Alliance and the Utah Native Plant Society, that sued the federal government over the non-listing decision, calling it a sell-out to the energy industry. Tuesday's ruling is the second time the courts have rejected FWS's refusal to protect these two flowers.
Utah officials fear a listing would put a damper on the oil shale industry, which is developing major projects in the Uinta Basin after decades of failed efforts to extract commercial quantities of oil from Utah's vast shale reserves that harbor an estimated 77 billion barrels of recoverable oil. Beardtongue tends to grow only near outcroppings where these deposits breach the surface, so extensive mining would threaten these plants' existence.
The conservation agreement places development caps on public lands within 44,373 acres of beardtongue habitat "conservation areas" that cover 64 and 76 percent of known habitat for Graham's and White River beardtongue, respectively. It also imposed 300-foot buffers around any beardtongue found on any lands — public or private — in these areas.
SITLA and the other Utah parties to the agreement had argued that it provides better protection than a listing. Endangered species status would provide minimal protection to the half of known beardstongue that grow on state and private lands, which could in theory be bulldozed immediately.
The judge did uphold some of the FWS's handling of the agreement, but had serious reservations about the adequacy of its 15-year term and 300-foot buffers.
SITLA officials, who intervened in the suit, had yet to review the 43-page ruling, but they noted that SITLA and Uintah County have since adopted rules imposing restrictions on non-federal lands.
"It is important to note that we followed though and already addressed this issue the court raised," said John Andrews, SITLA's general counsel.
But Martinez took issue not just with the small size of the buffer zone, but also with how FWS agreed to it, suspecting it was the result of "horse trading with energy developers" rather than careful analysis as required by law. This is because the agency's own recommendations had earlier called for much larger buffers.
"FWS accepted a 300-foot buffer in the Conservation Agreement because its internal study identified it as the minimum needed distance, and selecting that minimum distance balances plant protection with energy development. For two reasons, this size of the buffer zone selection was improper," Martinez wrote.
His ruling reinstates FWS's proposal to list the two species as threatened and designate critical habitat, but stays that decision until after Feb. 21. By that date, all parties, including the Utah entities that intervened in the suit, are ordered to meet in person "to discuss in good faith whether the Conservation Agreement may be modified such that Plaintiffs [the environmental groups] can agree that it will adequately protect the beardtongues for the foreseeable future," Martinez wrote.
"FWS must go back to the drawing board and make a decision based not on politics, but on science, as the law requires," said Robin Cooley, an attorney with Earthjustice representing the environmental groups. "FWS has also recognized that in order to survive the beardtongues need large protected buffer zones around the plants—700 meters for the Graham's beardtongue and 500 meters for the White River beardtongue. These buffers are necessary to prevent habitat fragmentation and to support the wasps that pollinate the wildflowers. Any revised conservation agreement must include adequate buffers."
Twitter: @brianmaffly