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Court Orders Feds to Protect Utah, Colorado Wildflowers From Resource Extraction

With implications for oil/natural gas drilling as well as mining, the U.S. District Court for Colorado on Tuesday agreed with various environmental groups that the U.S. Fish and Wildlife Service (FWS) needs to protect two threatened wildflowers that live solely on an oil shale formation in Colorado and Utah.

As part of the decision, however, the court ordered the parties to meet to try to resolve their differences and report back to the court by Feb. 28.

A coalition of environmental organizations, led by Earthjustice on behalf of five other groups, including the Center for Biological Diversity, filed a lawsuit alleging that oil shale and tar sands mining, along with oil/gas drilling, threaten 100% of one type of wildflower (White River beardtongue) and 85% of a second one (Graham's beardtongue).

Western Energy Alliance's (WEA) Kathleen Sgamma, vice president for government and public affairs, said this is another example in which environmental groups are never satisfied. "In this case, the county and state, along with industry, worked together to put forward a plan for on-the-ground conservation, and that's never enough for the enviros because they want federal government control.”

Sgamma said the science is "weak" for supporting allegations the two types of wildflowers need protection, and the push by the coalition is a way to hide their real intentions, which are to block development of natural resources. "It is unfortunate that the federal government can't see this," she said.

The court ruled Tuesday that the FWS could not rely on a 15-year "conservation agreement" negotiated with pro-industry stakeholders following a 2013 proposal by the federal agency to extend the Endangered Species Act (ESA) protection to the wildflowers and nearly 76,000 acres of what has been designated as their essential habitat. FWS later denied the ESA protections, relying on the subsequent conservation agreement to provide protections.

Under the court's action, the proposed rule extending the ESA protections was put back into effect. "This is the second time a federal court has struck down the FWS's decision to deny ESA protections to the beardtongue," a spokesperson for the environmental groups said.

The conservation agreement required the government and industry signatories to implement restrictions on federal, state and private lands in the two states that would purportedly protect the wildflowers. Judge William Martinez said the federal agency "did not err when it accounted for the conservation agreement in this case."

But the judge said the FWS "acted contrary to the ESA" in several regards, including assuming that the agreement's proposed regulatory and nonregulatory measures were already in effect and taking into account "economic considerations" in applying a 300-foot buffer zone around the wildflowers.

While Martinez said the court is vacating the federal agency's decision not to list the wildflowers as "threatened" under ESA, before entering the final judgment, he ordered the parties to reconvene by Feb. 21 to try to revise the conservation agreement to satisfy the concerns of all the parties, including the environmental groups.

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