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Flat-tailed horned lizard
Courthouse News Service, May 20, 2009

Lizard Gets Another Shot at Protection
By Avery Fellow

The Secretary of the Interior must reconsider the flat-tailed horned lizard for endangered species listing after using inconclusive population numbers to say that the population was viable, the 9th Circuit ruled.

The court reversed a ruling that allowed the Secretary to withdraw the listing, saying the agency was wrong to conclude that the lizard's flourishing presence throughout most of its range meant loss of its habitat elsewhere was insignificant.

The current population data is "unhelpful," Judge Tashima wrote, but just because there is no evidence of huge population decline, the agency should not have come to the "sweeping conclusion" that the lizard was doing fine.

The lizard, native to the Sonoran desert in California, Arizona and Mexico, was first proposed for listing in 1993. But the Secretary never approved it, and moved to withdraw the listing proposal in 1997.

Defenders of Wildlife and other conservation groups then sued the Secretary to compel a listing determination, but the government compromised with a promise to address threats to the lizard's habitat on public lands.

Despite reliance on shaky population data, the Secretary appropriately interpreted the significance of the lost range, the court ruled.

The Secretary found that despite habitat loss, evidence that lizards were migrating between isolated populations meant that the species was maintaining sufficient genetic diversity, and the appellate panel agreed.

Also, the Secretary said that much of the lost range does not factor into species recovery because it is not recoverable, disappearing decades ago during agricultural and industrial buildup. These two conclusions stand without the persistence finding, the circuit panel ruled.

But the Secretary relied too heavily on the persistence finding, minimizing habitat loss because the lizard was thriving in certain areas, to withdraw the proposed listing. The court remanded the listing proposal to the Secretary for reconsideration, ruling that the historical lost range may be considered significant.

The lizard is quickly disappearing in the California's Coachella Valley, but the court agreed with the Secretary that this was not a significant loss, as it represents only 1 percent of the remaining lizard range.

Judge Noonan partially dissented, saying nothing will change when the case is remanded, because there is still no conclusive population data.

The issue of the lizard listing has been tossed in the courts for years, caught between government and private groups that argue only over range data, Noonan said. Because there is no knowledge of how many lizards were lost when the range disappeared, the Secretary cannot evaluate whether the population is increasing, staying the same, or declining. Noonan says remanding the case only forces the Secretary to "guess again." 

Photo © Paul S. Hamilton