Endangered Species Law & Policy

Reminiscent of the tale of endless litigation in Dickens' Bleak House, the Fish and Wildlife Service has reinstated (PDF) the 1993 proposed rule (PDF) to list the flat-tailed horned lizard as a threatened species under the Endangered Species Act following more than a decade of litigation, including two decisions from the United States Court of Appeals for the Ninth Circuit.  The flat-tailed horned lizard is found in the western Sonoran desert of California, Arizona and Mexico.

The reinstatement of the proposed rule is in response to Tuscon Herpetological Society v. Salazar (PDF), the Ninth Circuit's most recent decision respecting the listing determination.  In its decision, the Ninth Circuit reversed a lower court decision upholding the Service's determination to withdraw the proposed rule (for the second time) on the ground that habitat loss did not constitute a significant portion of the species' range and the loss did not result in a likelihood that the species could become endangered in the foreseeable future.  Noting that information concerning population dynamics of the species is limited and inconclusive, the Ninth Circuit faulted the Service for inferring that "the absence of evidence of population decline equates to evidence of persistence."  In a dissent, Judge Noonan questioned the role of the judiciary vis-a-vis the Service where, as here, everyone agrees that there is a high degree of uncertainty.

It's any body's guess whether the lizards are multiplying or declining. In a guessing contest one might defer to the government umpire. The court, however, finds the Secretary's  conclusion impacted by over-reliance on fragmenting evidence of the lizard's persistence; so the court decides to give the Secretary another crack at the problem.

The listing of the flat-tailed horned lizard will impose restrictions on public and private activities in the lizard's range in the United States, although the species is covered by the Coachella Valley Multiple Species Habitat Conservation Plan, which covers approximately 1.2 million acres of land in Riverside County, California.  Like the potential listing of the Sonoran desert tortoise, this listing could also impact areas identified for solar energy projects in California and Arizona.

The comment period on the proposed listing expires May 3, 2010.  Public hearings are scheduled for March 23, 2010 at the University of California, Riverside and March 24, 2010 at the Radisson Hotel in Yuma, Arizona.  The Service has not proposed the designation of critical habitat at this time.