Tuesday, May 19, 2009

Tucson Herpetological Society v. Salazar (Interior Dept.)

May 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16641. Conservation organizations and individual biologists (collectively Plaintiffs) contend that the Secretary of the Interior’s (the Secretary) decision to withdraw a rule proposing that the flat-tailed horned lizard (the lizard) be listed as a threatened species is contrary to the requirements of the Endangered Species Act (ESA or the Act), and the Administrative Procedure Act (APA). They appeal from the district court’s order granting summary judgment in favor of the Secretary. In a partially split decision the majority Appeals Court reversed in part and remanded.

Plaintiffs objected to the Secretary’s assertion that a Conservation Agreement and management strategy have diminished threats to the lizard’s remaining habitat on public lands, and emphasize the management strategy’s slow and still incomplete implementation. The Appeals Court said the Secretary acknowledges that the Conservation Agreement has not yet been fully implemented, but points to specific conservation benefits that the agreement has achieved since it came into being in 1997. Moreover, the Appeals Court said, the 2003 withdrawal states that its assessment of threats to the species’ current range is not “dependent on full implementation” of the Conservation Agreement’s management strategy. The Appeals Court concluded that "the limited benefits that the 2003 withdrawal points to are supported by the record, and the Secretary did not err in taking the Conservation Agreement into account."

Additionally, Plaintiffs argue that OHV (off-highway vehicle) use in the lizard’s current range presents a much greater threat to the species than the Secretary acknowledges. The majority said, "Plaintiffs’ argument, however, relies on inferences from indeterminate scientific evidence. . . Both Plaintiffs and the Secretary point to scientific studies supporting their respective views on the effects of OHVs, but the merits of the conflicting studies is not a proper subject for this court to resolve." The court relied on the precedent saying "We must defer to the agency’s interpretation of complex scientific data."

Finally, Plaintiffs challenge the Secretary’s treatment of scattered threats posed by energy and mineral development projects, increased Border Patrol activity, and the possible construction of large-scale infrastructure projects in the lizard’s current range. The majority said, "Plaintiffs’ arguments follow the same course as their attack on the agency’s analysis of OHV use. In short, they have not presented conclusive evidence to rebut the Secretary’s determination that such threats, either alone or in concert, are not likely to cause the 'destruction, modification, or curtailment of [the species’] habitat or range.'"

Accordingly, the Appeals Court ruled, ". . .we reverse and remand the judgment of the district court with instructions that the matter be further remanded to the Secretary so that the Secretary can again consider whether to withdraw the proposed listing of
the lizard."

Access the complete opinion (
click here).