[Federal Register: March 2, 2006 (Volume 71, Number 41)]
[Proposed Rules]               
[Page 10631-10633]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU58

Endangered and Threatened Wildlife and Plants; Reinstated 
Proposed Rule To List the Flat-Tailed Horned Lizard as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period for the reinstated proposed rule 
to list the flat-tailed horned lizard (Phrynosoma mcallii) as a 
threatened species pursuant to 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, remanded the 
matter to us for further consideration in accordance with its August 
30, 2005, and November 17, 2005, orders, and ordered us to make a new 
listing decision by April 30, 2006. Pursuant to the Court's November 
17, 2005, order, on remand we ``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.'' To ensure our new 
final listing decision is based on the best scientific and commercial 
data currently available, we are reopening the public comment period on 
the 1993 proposed listing rule to solicit information and comment 
regarding the flat-tailed horned lizard's lost historical habitat.

DATES: We will accept comments from all interested parties until March 
16, 2006. Comments received after the closing date may not be 
considered in the final decision on this action.

ADDRESSES: If you wish to comment on the specific issue identified by 
the District Court in its November 17, 2005, order for remand of the 
January 3, 2003, withdrawal of the proposed rule to list the flat-
tailed horned lizard, you may submit your comments and materials by any 
one of several methods:
    1. You may submit written comments and information to Jim Bartel, 
Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and 
Wildlife Office (CFWO), 6010 Hidden Valley Road, Carlsbad CA 92011.
    2. You may hand-deliver written comments to the CFWO, at the 
address given above.
    3. You may send comments by electronic mail (e-mail) to 
fw8CFWOcomments@fws.gov. Please submit Internet comments in ASCII 

format and avoid the use of special characters or any form of 
encryption. Please also include ``ATTN: Flat-Tailed Horned Lizard'' in 
your e-mail subject header and your name and return address in the body 
of your message. If you do not receive a confirmation from the system 
that we have received your Internet message, contact us directly by 
calling our CFWO at phone number 760-431-9440. Please note that this 
Internet address will be closed at the termination of the public 
comment period.
    4. You may fax your comments to 760-431-9624.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.
    Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the CFWO at 
the above address.

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


Public Comments Solicited

    To assist us in making a final listing determination based on the 
best scientific and commercial data available, we are reopening the 
public comment period on the proposed rule to list the flat-tailed 
horned lizard for 14 days to accept public comment on the specific 
issue identified in the District Court's November 17, 2005, order, 
namely whether the flat-tailed horned lizard's lost historical habitat 
renders the species likely to become in danger of extinction within the 
foreseeable future throughout all or a significant portion of its 
    Comments relevant to the identified issue for consideration during 
the remand of the January 3, 2003, withdrawal of the proposed rule to 
list the flat-tailed horned lizard that were previously submitted 
during prior comment periods on the proposed rule need not be 
resubmitted as they have been incorporated into the public record and 
will be fully considered in preparation of the final determination.


    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 withdrew the 1993 proposed rule (62 
FR 37852). Defenders

[[Page 10632]]

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 back 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. Consistent with the District 
Court's remand order, we published a reinstatement of the 1993 proposed 
listing of the flat-tailed horned lizard as threatened and opened a 
120-day comment period (66 FR 66384, December 26, 2001). The District 
Court further ordered us to commence a 12-month schedule for a final 
listing decision in compliance with the Ninth Circuit Court's order. As 
a result, 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 environmental organizations and 
individuals 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 Service's failure 
to make this specific determination was the only violation cited by the 
District Court. 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 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.'' The order indicates that, while the Court believes this 
determination is required by the Ninth Circuit's opinion, ``the 
Secretary has wide discretion in delineating a significant portion of 
the lizard's range,'' including in defining the ``range'' of the 
species (which the Court states must include some lost habitat) and in 
choosing the point in time at which to examine the range. On December 
7, 2005, we published a notice reinstating the November 29, 1993, 
proposed rule to list the flat-tailed horned lizard as a threatened 
species. For reasons outlined in this notice, we are now reopening the 
comment period on the proposed rule.
    For your convenience, here is a list of the primary Federal 
Register documents pertaining to the proposed listing of the flat-
tailed horned lizard as threatened:

                 Action                                     Date                            FR citation
Proposed rule to list the flat-tailed     November 29, 1993......................  58 FR 62624.
 horned lizard as threatened.
Withdrawal of proposed rule.............  July 15, 1997..........................  62 FR 37852.
Reinstatement of proposed rule;           December 26, 2001......................  66 FR 66384.
 reopening of comment period.
Withdrawal of proposed rule.............  January 3, 2003........................  68 FR 331.
Reinstatement of proposed rule..........  December 7, 2005.......................  70 FR 72776.

    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 in 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 Yuha 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 (2,600 feet) above sea level, but 
most populations are below 300 meters (980 feet) elevation. Various 
descriptions and estimates of the historical and current ranges of the 
flat-tailed horned lizard are described in the November 29, 2003, 
proposed rule (58 FR 62624); July 15, 1997, withdrawal of the 1993 
proposed rule (62 FR 37822); and January 3, 2003, withdrawal of the 
1993 proposed rule (68 FR 331).
    In 2003, the Flat-tailed Horned Lizard Interagency Coordinating 
Committee released a revised version of the 1997 Flat-tailed Horned 
Lizard Rangewide Management Strategy (Flat-tailed Horned Lizard 
Interagency Coordinating Committee 2003). The 2003 Rangewide Management 
Strategy, includes a map of the approximate historical and current 
range boundaries of the flat-tailed horned lizard. Using the geographic 
information system shape files used to develop the range map, we 
calculated the area of the historical and current ranges of the flat-
tailed horned lizard in the United States and Mexico. Based on this 
information, we estimated the historical range (United States and 
Mexico) to be approximately 6,183,647 acres (2,502,433 hectares), which 
with the exclusion of the historic Lake Cahuilla would be reduced to 
approximately 4,874,238 ac (1,972,534 ha), and the current range 
(United States and Mexico) to be approximately 3,962,543 acres 
(1,603,884 hectares). A copy of this report can be viewed on the 
Carlsbad Fish and Wildlife Office's Web site at http://www.fws.gov/carlsbad/

    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,

[[Page 10633]]

2003 Federal Register notice (68 FR 331).


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


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

    Dated: February 17, 2006.
Marshall Jones, Jr.,
Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. E6-3005 Filed 3-1-06; 8:45 am]