Oil-shale plans could be derailed by ruling on Graham's penstemon, an endangered plant

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William Blake saw heaven in a wildflower. The energy industry sees nothing but trouble.

Last week, a federal judge in Denver ruled that the U.S. Fish and Wildlife Service's decision not to declare an obscure plant as endangered was "arbitrary and capricious" -- a ruling that could have far-reaching implications for future drilling and oil shale development in Colorado and Utah.

Graham's penstemon, a wildflower in the snapdragon family, can be found only on shale outcroppings in northeastern Utah and northwestern Colorado. There are five core populations -- four of them in Utah, and three of which have less than 200 plants left each, thanks to years of grazing, drilling and off-road vehicle use. Environmentalists have been seeking Endangered Species Act protection for the plant since the 1970s and were close to getting it a few years ago.

But under the Bush administration, the Bureau of Land Management lobbied heavily against the ESA designation, and Fish and Wildlife abruptly withdrew a proposed rule listing Graham's penstemon as threatened. That action led to subsequent legal challenges, culminating in Senior Judge Walker D. Miller's ruling on Thursday that the feds had failed to take into account the cumulative impact of so many stresses on the plant's viability.

The Graham's penstemon range is narrow but happens to parallel some prime areas for oil shale development and oil and gas drilling, particularly in Utah. (A cousin of the plant, the rare Parachute penstemon, has been a key battle point in the gas drilling targeted for the Roan Plateau). Miller's decision sends the issue back to USFWS for further review, which could lead to greater protection for the plant (and another hurdle for energy development in the Uinta Basin) when a final rule is issued in another year or so.

"The real question of how much protection Graham's penstemon will receive is still up to Fish and Wildlife," notes Meg Parish, attorney for Earthjustice. "But the judge made it clear that they can't keep doing what they've been doing."

Additional details on Judge Miller's decision can be found here.

More from our Follow That Story archive: "Salazar moves forward -- and backward -- on oil shale leases."

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