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Defenders of Wildlife v. Norton

ELR Citation: 31 ELR 20846
Nos. Nos. 99-56362, 00-55496, 258 F.3d 1136/(9th Cir., 07/31/2001)

The court holds that the U.S. Department of the Interior's (DOI's) decision to withdraw a proposed rule recommending the flat-tailed horned lizard for protection under the Endangered Species Act (ESA) was arbitrary and capricious. The lizard was identified as a candidate for listing under the ESA in 1982, and in 1993 a proposed rule was published listing the lizard as a threatened species. In 1997, DOI was ordered by a district court to issue a final decision on the lizard. That same year a group of federal and state agencies signed a conservation agreement (CA) implementing a recently completed rangewide management strategy to protect the lizard. Subsequent to the CA's adoption, DOI issued a notice withdrawing the proposed rule that had earlier recommended the lizard for listing as a threatened species. An environmental group challenged DOI's withdrawal in district court, but the district court upheld DOI's decision. The environmental group then appealed.

The court holds that DOI's decision to withdraw the proposed rule was arbitrary and capricious. A species can be extinct throughout significant portions of its range if there are major geographical areas in which it is no longer viable but once was. However, in the notice, DOI did not consider whether the lizard was becoming extinct throughout a significant portion of its range. The habitat on private land may constitute a significant portion of its range demanding enhanced protections not required on public lands. Alternatively, the inverse may be true. Additionally, the lizard may face unique threats in either California or Arizona, or in major subportions of either state. Further, DOI failed to address the lizard's viability in a site-specific manner with regard to the putative benefits of the CA. Thus, it is unclear how the benefits assertedly flowing from the CA affected any portion of the lizard's habitats and how the CA could have mitigated threats to the lizard throughout a significant portion of its range. The court, therefore, reverses the district court's decision and remands the case to DOI.

Counsel for Plaintiffs
Neil Levine
Earthlaw
Foote Hall
7150 Montview Blvd., Denver CO 80220
(303) 871-6996

Counsel for Defendants
Robert H. Oakley
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Berzon, J. Before Trott and Thomas, JJ.