Author: Damien M. Schiff
One of the most litigated-over species in the Southwest has been the flat-tailed horned lizard. First noted as a species at risk by the U.S. Fish & Wildlife Service in the early 1980s, the species was ultimately formally proposed for listing in 1993. Fast forward nearly twenty years, and two appellate decisions, and we have the Service's decision, issued Tuesday, that the lizard is not endangered or threatened with extinction and that the 1993 proposed listing should be withdrawn.
ESA watchers will recall that this is the same species that was at issue in the Ninth Circuit's Defenders of Wildlife decision, the first published appellate opinion interpreting what "significant portion of its range" means as used in the ESA. In that case, the Ninth Circuit held that the Service had failed to determine whether the lizard's listing could be justified based on areas of its historical range where the lizard today is no longer viable (or is entirely absent from).
In this week's determination, the Service found that, owing to much better monitoring data, increased federal, state, and local conservation measures, reduced development and agriculture threats, and the like, the lizard is safe for the foreseeable future. The Service also determined that no potential distinct population segment of the lizard was sufficiently threatened to merit listing. Finally, the Service also determined that the lizard was not threatened or endangered in any significant portion of its range (a big nod to Defenders of Wildlife). I would be rather surprised if no one challenges this finding.