May 18, 2009

Flat-tailed horned lizard decision

By Damien M. Schiff Senior Attorney

Today the Ninth Circuit issued its ruling in Tucson Herpetological Society v. Salazar, a challenge to the Service’s 2006 decision to withdraw a proposal to list the flat-tailed horned lizard. This is just the latest in a long series of decisions over whether to list the lizard. The most significant of those decisions, until today, was Defenders of Wildlife v. Norton, a 2001 ruling from the Ninth Circuit. In that case, the court held that the Service had misinterpreted a key phrase from Section 4 of the ESA. Under that provision, the Service is authorized to list species that are endangered or likely to be become endangered throughout all "or a significant portion" of their range. The Service had determined that, because the lizard was persistent on public property, the agency therefore had no obligation to determine whether the lizard may also be endangered on private property. Defenders found this analysis to be irreconcilable with the statute, because it was at least theoretically possible that the private-property portion of the lizard’s range was "significant," such that the lizard could warrant listing regardless of its purported persistence on public lands.

The trouble with the Defenders analysis was that it seemed to countenance a logical fallacy. Specifically, the opinion faulted the Service because the agency failed to determine whether the areas of the lizard’s range in which the species is now extinct could be considered "significant." The trouble here is that the ESA provides for listing of species that are currently endangered or threatened but that are not actually extinct. If a species no longer exists, i.e., is extinct, in a portion of its range, then it necessarily cannot be endangered or threatened with extinction in that same portion of its range. (The Interior Department Solicitor adopted this criticism of Defenders in a March, 2007, memo).

Well, it’s not surprising that the Service, on remand, resisted the logical fallacy. And it’s also not surprising that the Ninth Circuit, in today’s opinion, backtracked from the fallacy. How did the court manage it? Very simply, really: it repackaged (in so many words) the Defenders "signficance" analysis as a gloss on the ESA’s "habitat loss" listing factor.

It is insufficient, under Defenders, to point to one area or class of areas where lizard populations persist to support a finding that threats to the species elsewhere are not significant; the ESA requires a more thorough explanation. See 258 F.3d at 1146 (faulting the Secretary for concluding that the availability of habitat on public lands alone renders lost habitat on private lands insignificant). Plaintiffs argue that this is precisely what the Secretary has done here.

The Secretary’s explanations, however, exhibit more nuance than Plaintiffs acknowledge. Although he places considerable weight on the lizard’s persistence throughout most of its remaining range, reliance on persistence is not per se inconsistent with Defenders. The 2006 withdrawal analyzes the lizard’s lost habitat in a site-specific manner, and cites lizard persistence to corroborate its conclusion that the lost portions of the lizard’s range do not provide any unique or critical function for the well-being of the species. Moreover, the Secretary offers two supplemental reasons that do not depend on persistence alone. He cites to a study of migration between isolated lizard populations and reasonably concludes that the lizard’s lost range does not represent a critical pathway for maintenance of genetic diversity. He also notes that most of the lizard’s lost range was converted to agricultural or commercial uses decades ago, is generally not recoverable, and is thus of limited significance to the lizard’s long-term survival.

Slip op. at 5954-5955 (citations omitted).

As is clear from the foregoing, the court approved the Service’s analysis on the grounds of the agency’s explanation of how the lost portions of the Service’s range do not have a bearing on the persistence of the lizard in the species’s occupied range. What is this, if not the standard habitat loss analysis under Section 4?

Nevertheless, the court still overturned the Service’s decision and remanded the matter, on the grounds that the Service had not sufficiently proved its conclusion that the lizard is in fact persistent in its occupied range. Judge Noonan, writing in partial dissent, would have none of the majority’s secondguessing:

A style of judging, familiar to readers of the old English reports, characterizes the judge as dubitante. That is probably the most accurate term for me, which leads me to concur in the majority opinion insofar as it rejects the contentions of the Tucson Herpetological Society and to dissent from the remand whose command to the Secretary of the Interior is, Guess again.

On balance, today’s decision is a win for the Service, as well as a partial retreat from Defenders. But one wonders whether the government is considering an en banc petition la The Lands Council (a 2008 en banc decision in which the court retreated significantly from its recent practice of questioning agency decisionmaking in environmental matters)?

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