[Federal Register Volume 70, Number 234 (Wednesday, December 7, 2005)]
[Proposed Rules]
[Page 72776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23692]



[[Page 72776]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU58


Endangered and Threatened Wildlife and Plants, Notice of 
Reinstatement of the 1993 Proposed Rule to List the Flat-Tailed Horned 
Lizard as a Threatened Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of reinstatement of proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the 
reinstatement of the November 29, 1993, proposed rule to list the flat-
tailed horned lizard (Phrynosoma mcallii) as a threatened species under 
the Endangered Species Act of 1973, as amended (Act). On November 17, 
2005, the U.S. District Court for the District of Arizona vacated the 
January 3, 2003, withdrawal of the proposed rule to list the flat-
tailed horned lizard, reinstated the 1993 proposed rule, and remanded 
the matter to us for further consideration in accordance with its 
August 30, 2005, and November 17, 2005, orders. The District Court 
ordered us to submit for publication in the Federal Register, as soon 
as practicable, a notice advising the public that the January 3, 2003, 
withdrawal has been vacated and that the 1993 proposed rule is 
reinstated, and to submit for publication in the Federal Register a new 
final listing decision on the proposed rule to list the flat-tailed 
horned lizard by April 30, 2006. Consequently, we are hereby providing 
notice that the 1993 proposed rule to list the flat-tailed horned 
lizard is reinstated, and that we will complete a final listing 
decision for the flat-tailed horned lizard by April 30, 2006.

ADDRESSES: The complete file for this notice is available for 
inspection, by appointment, during normal business hours at the 
Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 
Hidden Valley Road, Carlsbad, California 92011.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, at the 
above address, by telephone at 760/431-9440, or by facsimile at 760/
431-9624.

SUPPLEMENTARY INFORMATION:

Background

    The flat-tailed horned lizard (Phrynosoma mcallii) is a small, 
cryptically colored, phrynosomatid lizard that reaches a maximum adult 
body length (excluding the tail) of approximately 87 millimeters (3.4 
inches). The lizard has a flattened body, short tail, and dagger-like 
head spines like other horned lizards. It is distinguished from other 
horned lizards in its range by a dark vertebral stripe, two slender 
elongated occipital spines, and the absence of external ear openings. 
The dorsal surface of the flat-tailed horned lizard is pale gray to 
light rusty brown. The ventral side is white and unmarked, with the 
exception of a prominent umbilical scar.
    The flat-tailed horned lizard is endemic (restricted) to the 
Sonoran Desert in southern California, Arizona and northwestern Mexico. 
The species is documented from the Coachella Valley in Riverside 
County, California; the Imperial and Borrego Valleys in Imperial and 
eastern San Diego Counties, California; south of the Gila River and 
west of the Gila and Butler Mountains in Yuma County, Arizona; east of 
the Sierra de Juarez in the Laguna Salada and Yreka Basins in 
northeastern Baja California Norte, Mexico; and north and west of Bahia 
de San Jorge to the delta of the Colorado River in northwestern Sonora, 
Mexico (Grismer 2002; Rodriguez 2002). The flat-tailed horned lizard 
occurs at elevations up to 800 meters (2600 feet) above sea level, but 
most populations are below 300 meters (980 feet) elevation.
    On November 29, 1993, we published a proposed rule to list the 
flat-tailed horned lizard as a threatened species pursuant to the Act 
(58 FR 62624). On July 15, 1997, we issued a final decision to withdraw 
the 1993 proposed rule (62 FR 37852). Defenders of Wildlife and other 
groups challenged the 1997 withdrawal decision. On June 16, 1999, the 
District Court for the Southern District of California granted summary 
judgment in our favor upholding our decision not to list the flat-
tailed horned lizard. However, on July 31, 2001, the Ninth Circuit 
Court of Appeals reversed the lower court's ruling and directed the 
District Court to remand the matter to us for further consideration in 
accordance with the legal standards outlined in its opinion (Defenders 
of Wildlife v. Norton, 258 F.3d 1136). On October 24, 2001, the 
District Court for the Southern District of California remanded the 
1997 withdrawal decision. Consistent with the District Court's remand 
order, we published a withdrawal of the proposed rule to list the flat-
tailed horned lizard on January 3, 2003 (68 FR 331). The Tucson 
Herpetological Society and other groups challenged this withdrawal 
decision in the United States District Court for the District of 
Arizona.
    On August 30, 2005, the District Court for the District of Arizona 
issued an order granting plaintiffs' motion for summary judgment ``on 
the ground that the Secretary's withdrawal of the proposed rule 
violated the Endangered Species Act and the Ninth Circuit's remand 
order by failing to evaluate the lizard's lost habitat and whether that 
habitat was a significant portion of the range.'' The court upheld all 
other aspects of the January 3, 2003, withdrawal decision. On November 
17, 2005, the District Court issued a subsequent order, consistent with 
its August 30, 2005, order, vacating the 2003 withdrawal and remanding 
the matter to us for further consideration. The District Court 
reinstated the 1993 proposed rule to list the flat-tailed horned lizard 
as a threatened species for the duration of the remand, and ordered us 
to submit for publication in the Federal Register, as soon as 
practicable, a notice advising the public that the January 3, 2003, 
withdrawal has been vacated and that the 1993 proposed rule is 
reinstated. The District Court further ordered us to make a new listing 
decision by April 30, 2006, stating that, ``on remand the agency need 
only address the matters on which the court's August 30, 2005 Order * * 
* found the January 3, 2003 Withdrawal unlawful, which may summarily be 
identified as whether the lizard's lost historical habitat renders the 
species in danger of extinction in a significant portion of its 
range.''
    For additional background information and previous Federal actions 
related to the listing determinations for the flat-tailed horned 
lizard, please refer to the January 3, 2003, Federal Register notice 
(68 FR 331).

Author

    The primary author of this notice is the Carlsbad Fish and Wildlife 
Office (see ADDRESSES section).

    Authority: The authority for this action is the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.).

    Dated: November 30, 2005.
Marshall Jones,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 05-23692 Filed 12-6-05; 8:45 am]
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