Ninth Circuit rejects FWS decision not to list the flat-tailed horned lizard
Tucson Herpetological Society v. Salazar, No. 07-16641, D.C. No. CV 04-0075 NVW (9th Cir. May 18, 2009)
INTRO: Conservation organizations and individual biologists (collectively “Plaintiffs”) contend that the Secretary of the Interior’s (the “Secretary”) decision to withdraw a rule proposing that the flat-tailed horned lizard (the “lizard”) be listed as a threatened species is contrary to the requirements of the Endangered Species Act (“ESA” or the “Act”), 16 U.S.C. 1531 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. 706. They appeal from the district court’s order granting summary judgment in favor of the Secretary. We reverse in part and remand.
The flat-tailed horned lizard is “a small, cryptically colored iguanid . . . that is restricted to flats and valleys of the western Sonoran desert.” 58 Fed. Reg. 62,624, 62,625 (Nov. 29, 1993). Its natural habitat stretches across parts of southern California, southwestern Arizona, and northern Mexico. Agricultural and urban development have resulted in fragmentation of the lizard’s remaining habitat. Fragmentation creates isolated subpopulations that, because of their reduced size, have an increased probability of extinction. Photo from the Arizona FWS Ecological Field Services Office.
FACTUAL AND PROCEDURAL BACKGROUND: The Secretary first proposed listing the lizard as threatened in 1993, citing documented and anticipated population declines. For the next 16 years, the species has been the subject of repeated rulemaking efforts, including a 1997, 2003 and 2006 withdrawal of the listing, and judicial review, including cases in 1997, 2003, 2005, and 2007. In its rulemaking efforts, FWS stated that it relied on population studies to conclude that the lizard “is persisting in the vast majority of its range.” further reporting that “information concerning population dynamics of flat-tailed horned lizard populations is limited and inconclusive.”
EXCERPT: If the science on population size and trends is underdeveloped and unclear, the Secretary cannot reasonably infer that the absence of evidence of population decline equates to evidence of persistence. The absence of conclusive evidence of persistence, standing alone, without persuasive evidence of widespread decline, may not be enough to establish that the Secretary must list the lizard as threatened or endangered. See Cook Inlet Beluga Whale v. Daley, 156 F. Supp. 2d 16, 21-22 (D.D.C. 2001) (holding that the ESA does not require listing “simply because the agency is unable to rule out factors that could contribute to a population decline”); cf. Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) (holding that when examining decisions made under conditions of scientific uncertainty “a reviewing court must generally be at its most deferential”). But this is a different case. The Secretary affirmatively relies on ambiguous studies as evidence of persistence (i.e., stable and viable populations), and in turn argues that this “evidence” of persistence satisfies Defenders’ mandate and proves that the lizard’s lost range is insignificant for purposes of the ESA. This conclusion is unreasonable. The studies do not lead to the conclusion that the lizard persists in a substantial portion of its range, and therefore cannot support the Secretary’s conclusion. The Secretary’s erroneous reliance on lizard persistence, however, does not end our inquiry...
We thus must determine whether the Secretary’s stated reasons — after setting aside the erroneous persistence finding — would have persuaded him that the lizard’s lost historical range is not significant. The Secretary’s conclusion that the lizard’s lost range holds no critical genetic value for the species finds some support in the record, as does his determination that much of the lizard’s lost historical range was converted to other uses decades ago and is thus not recoverable. Neither reason is entirely dependent on lizard persistence. Nonetheless, the 2006 withdrawal repeatedly refers to lizard persistence as persuasive evidence that the species’ lost historical range is not significant. The Secretary offers persistence as both an independent, and indeed primary, basis for
discounting the importance of lost range, and as support for several other key conclusions. Because a reliance on the lizard’s persistence throughout most of its current range cuts to “the heart of the agency’s analysis,” Bondholders Comm., 289 F. Supp. at 440, we cannot readily say that the erroneous finding clearly had no bearing on the Secretary’s ultimate decision to withdraw the proposed listing. On remand, the Secretary may be persuaded that, absent reliable evidence of population persistence, the lizard’s lost historical range is indeed significant.
KEITHINKING: The FWS decision not to list the species certainly had flaws, including an absence of information, and flawed survey data, this opinion gives FWS no deference at all. Indeed, the opinion noted that entirely new counting methods are now in place, and that FWS did have some evidentiary support for its decision. But the Ninth Circuit disregarded the expertise of FWS, and reversed anyway. In the Ninth Circuit, it sometimes seems that the precautionary principle is the governing philosophy. While appropriate, perhaps, for biologists and policy makers, when this approach is embraced by jurists, it leads to ugly charges of judicial activism, as expressed in the dissent by Judge Noonan, who took the rest of the the panel to task:
The legal system does not confide the definitive judgment to the agency entrusted with enforcement of the law but subjects that judgment first to the challenges of the nongovernmental organizations and then to the supervision of judges who are not expert in the scientific matters at stake and not familiar with the species whose survival is at stake. As if this interplay of governmental and private groups did not create room for tension, misunderstandings, and passionate disagreement, the problems in this case have been exacerbated by the simple absence of information.
How many flattailed horned lizards are there? No one knows the answer to that question. Nor does anyone know how many lizards disappeared when portions of their range disappeared. It is supposed that a diminution in range correlates with a diminution in lizards. This hypothesis is plausible. It has not been shown to be probable. Yet the case turns on what measures are necessary to keep this unknown population in existence. The court concludes that the Secretary erred in finding that the lizard has not lost a significant portions of its range. The old method of counting lizards is out. A new method has not been tried very much. It’s anybody’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. If the Secretary does not know what the lizard population was to begin with, or what it was in 1993, or what it is now in May 2009, how will he know if it is increasing, staying the same, or declining?
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.