A Little Herb Gets Caught In A Big Fight Over the Endangered Species Act

Feb 20, 2019
Originally published on February 21, 2019 9:50 am

MILFORD, Utah — The San Francisco Mountains in southwestern Utah were once home to one of the richest silver mines in the world. When it comes to mining today, they stand mostly quiet — for now — with only a handful of rock mines operating in the area.

But among the abandoned shafts and white limestone cliffs, a relatively recent discovery is growing — the tiny Ostler’s pepper plant. Discovered in 1980 by two Utah-based scientists, this is the only place on earth where the purple and white flowering herb is found.

“It’s a really incredible plant,” said Tony Frates, co-chair of the conservation group Utah Native Plants Society. “It grows on these barren rocks.”

The Ostler’s pepper plant (also commonly referred to as Ostler’s pepperweed or Ostler’s peppergrass) drew attention from scientists under the Obama administration. They suggested listing the herb under the federal Endangered Species Act because of concerns that future mining could kill the plant. It’s still new to science but it’s hard to study because the herb only grows on patches of private land leased by mining companies.

Its location means it’s just out of the reach of federal researchers but not beyond the footprint of prospective mine operators who are searching for the next bonanza.

Conservationists say this puts the pepper plant at risk, launching a controversy that’s highlighting the ongoing fight over which plants and animals should be listed under the Endangered Species Act — and who gets to decide.

In November, an Australian company, Alderan Resources, announced it had found high-grade copper in the area. Soon after, the Trump administration denied protections under the Endangered Species Act following a two-year review that began under the Obama White House. The decision said mining didn’t pose a big threat.

“As a result, the assessment concluded the plants are not in danger of becoming extinct now or in the foreseeable future,” the decision stated, which could soon face a legal challenge from environmental groups.

“How Can It Not Be A Threat?”

The Trump administration’s decision baffled environmentalists like Frates.

“I don’t know how they could have come to the conclusion that mining wasn’t an impact,” he said. “How can it not be a threat?”

Talk — and fears — of future mining in the area have persisted for years. Such concerns are what spurred the environmentalist group Wild Earth Guardians to advocate in 2007 for the plants’ listing under the Endangered Species Act.

But a spot on the Endangered Species list wouldn’t necessarily protect the plants. An old, obscure rule rooted in English common law allows private landowners to kill plants on their property without federal legal recourse. Still, the listing could bring attention and research dollars to the Ostler’s pepper plant.

During the Obama administration, federal scientists appeared to agree with the environmentalists’ concerns that mining could push the species closer to extinction. In 2011, the U.S. Fish and Wildlife Service deemed the Ostler’s pepper plant and its two equally rare nearby cousins, the Frisco Buckwheat and the Frisco Clover, candidates for listing.

“Because the San Francisco Mountains area was one of the most productive areas during the last large-scale precious metal mining efforts, it is reasonable to assume that it will become important again, particularly given the ongoing exploration activities at the mines,” The U.S. Fish and Wildlife Service wrote in its initial decision.

Frates agreed with that initial decision — especially considering the plants are new to science.

“People don’t realize that our knowledge is still not at the same level that it needs to be in terms of knowing what we might be destroying without even realizing it,” he said.

The discovery of new plants, for example, has occasionally lead to breakthroughs in medicine. That aside, Frates said there’s an even bigger question at play.

“Do we morally or ethically have the right to cause another species to be extinct?” he said.

The Fly Trap

When the Endangered Species Act was passed by Congress nearly 50 years ago, it had broad bipartisan support. Since then, it’s been 99 percent effective at stopping listed plants and animals from becoming extinct. But some Western Republican lawmakers argue the Act is like a fly trap: Once a species gets stuck on it, it doesn’t come off.

“Too often, species are kept indefinitely on the Endangered Species List,” Rep. Rob Bishop (R-Utah) said during a committee hearing last year. “State and local governments and their expertise on the ground are often cut out of the process. They have very little say in the decisions to list and the most effective recovery strategies that can be used.”

Bishop and others argue that the states are better equipped than the federal government to protect the plants and animals in their own backyards.

The Trump administration is listening. Officials proposed revisions that would weaken parts of the Endangered Species Act. In 2017, the U.S. Fish and Wildlife Service issued new guidance urging federal scientists to get a second opinion from the states when deciding whether to list a plant or animal.

In Utah, the state’s current stance is that mining isn’t a big threat to the Ostler’s pepper plant.

“It’s unlikely that they would be totally wiped out as a result of either gravel or metal mining,” said Peter Brinton, an environmental scientist with the Utah Division of Oil, Gas and Mining, which regulates mining in the state.

Last year, Brinton helped the governor’s office write comments and propose revisions to a draft version of the rare plants’ Species Status Assessment. The assessment determines risk and is used by the federal government to decide whether to list a species.

In the draft assessment for the Ostler’s pepper plant, federal scientists expressed their ongoing concerns about the impact of mining. Brinton said they were misguided.

“As well intentioned as our friends at the Fish and Wildlife Service might be, they just haven’t studied mining and mine reclamation,” he said. “So that’s where our agency can step in and provide some additional needed perspective.”

For Jennifer Lewisohn, botanist with the U.S. Fish and Wildlife Service, the recommendations were welcome. She said her team was relying on the technical expertise from outside agencies to update their draft threat assessment.

“I think it makes our final document more defensible and more realistic and accurate,” she said.

Both Lewisohn and Brinton don’t foresee a huge threat from future mining in the San Francisco Mountains. Brinton pointed to Alderan’s discovery of high-grade copper there. He said to take it with a grain of salt.

“These mining companies are looking for investment. Mining is high risk,” he said. “Exploration projects in the past haven’t really uncovered anything that’s been worth mining since 1970. What would this project or any other project do differently?”

In other words, just because something is found doesn’t mean it’s worth the price to dig up.

Brinton argues that politics didn’t play into his agency’s recommendations and that it isn’t beholden to the mining industry. The U.S. Fish and Wildlife Service echoed that sentiment.

But Noah Greenwald, endangered species coordinator for the Center For Biological Diversity, said he doesn’t buy it.

“This is a clear example of political interference in what should be a scientific process,” he said.

He points to the U.S. Fish and Wildlife Service sharing the draft version of their risk assessment with the Utah governor’s office. Greenwald argues the state’s proposed corrections and revisions amount to bad politics bleeding into good science.

“[The state] didn’t just give them information about mining,” Greenwald said. “They advocated for a particular position and Fish and Wildlife Service rolled over.”

Greenwald said the Center For Biological Diversity is preparing to litigate. But what this means for the scrappy little herb is unknown. After all, it survived the last mining bonanza.

This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUER in Salt Lake City and KRCC and KUNC in Colorado. 

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