[Federal Register: April 21, 2006 (Volume 71, Number 77)]
[Proposed Rules]               
[Page 20637-20639]
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.
    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

[[Page 20638]]

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 May 8, 
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 see Public Comments Solicited section 

below for more information on submitting a comment by e-mail.
    4. You may fax your comments to 760/431-9624.
    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 
CFWO (see ADDRESSES section), by telephone at 760/431-9440, or by 
facsimile at 760/431-9624.


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 (58 FR 62624; November 29, 
1993) to list the flat-tailed horned lizard 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 range.
    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.
    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.
    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, but you should be aware that the Service may be required to 
disclose your name and address pursuant to the Freedom of Information 
Act. 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.

Previous Federal Actions

    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 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 
    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 document (70 FR 72776) reinstating the

[[Page 20639]]

November 29, 1993, proposed rule to list the flat-tailed horned lizard 
as a threatened species. On March 2, 2006, we published a document 
announcing the reopening of a 14-day public comment period on the 
proposed rule to list the flat-tailed horned lizard under the Act (71 
FR 10631). To ensure the public is provided with an adequate 
opportunity to comment on the matters identified by the Court, the 
parties filed a Joint Stipulation with the Court on March 28, 2006, to 
allow for an additional public comment period. On March 29, 2006, the 
Court granted our request for an extension of the April 30, 2006, 
deadline, and ordered us to submit the new final listing determination 
for the flat-tailed horned lizard to the Federal Register on or before 
the date six weeks after the close of this additional public comment 
period. For the reasons outlined in this document, we are now reopening 
the comment period on the proposed rule for an additional 16 days.
    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.
Reopening of comment period............  March 2, 2006..........................  71 FR 10631.


    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, 2003, Federal Register notice 
(68 FR 331).


    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: April 7, 2006.
Marshall Jones, Jr.,
Deputy Director, U.S. Fish and Wildlife Service.
 [FR Doc. E6-5895 Filed 4-20-06; 8:45 am]