72776 Federal Register / Vol. 70, No. 234 / Wednesday, December 7, 2005 / Proposed Rules 

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. 

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 flattailed 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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