Federal Judge in Colorado requires FWS to take another look at Graham's penstemon
Center for Native Ecosystems v. U.S. Fish and Wildlife Service, CV 08-cv-2744-WDM-BNB, 2011 U.S. Dist. LEXIS 61321 (D. Colo., June 9, 2011).
BACKGROUND: The Graham’s penstemon is an herbaceous perennial plant that occurs uniquely on exposed, raw shale knolls and slopes of western Colorado and eastern Utah with five core populations (four in Utah and one in Colorado). Sixty percent of these plants occur on Bureau of Land Management (BLM) lands and, according to the BLM, the plant is in severe decline. After recognizing in the proposed rule that the species had a “strong potential to become an endangered species in the foreseeable future if present threats increase and projected energy development scenarios occur,” and ignoring the advice of peer reviewers, the FWS failed to list the plant in their final rule.
Image from the rare plants webpage by the Utah Native Plant Society
ISSUE:: Plaintiffs challenged the decision of the U.S. Fish and Wildlife Service (FWS) to withdraw the proposed listing of Graham’s penstemon as a threatened species under the ESA. The plaintiffs asserted that 1) FWS failed to consider the combined impact of the identified threats to the plants; 2) FWS disregarded the best available information regarding the threat to the plant of oil and gas development, livestock grazing, and off-road vehicles (ORVs); and 3) FWS failed to demonstrate how claimed conservation measures to protect the plant were implemented and effective and improperly relied on future measures.
RULING: The court granted plaintiffs’ petition for review of agency action. First, the court failed to take judicial notice of the Pariette cactus listing – a plant occurring in the same area and subject to the same impacts as the penstemon. Next, the court found that FWS did not consider the impact upon the species of all listing factors together. FWS had addressed each of the five factors separately and in isolation, but the final rule was devoid of any discussion of the effect of combining two or more factors. In addition, FWS did not consider best available scientific and commercial information because the rule did not adequately address concerns raised by the BLM, nor did it explain why the previously perceived threats of energy development, grazing, and ORV use had been significantly eliminated. Plaintiffs had pointed to specific reports and available information from BLM scientists. Furthermore, when making its listing determination, FWS had relied on the assumption that future draft conservation efforts would be effective when it was instead required to look at existing regulatory mechanisms.