Today, the United States Fish and Wildlife Service (“FWS”) withdrew its proposed rule to list the dunes sagebrush lizard as endangered under the Endangered Species Act of 1973 (“ESA”), finding that the best scientific and commercial data available indicate that the threats to the species and its habitat have been reduced to the point that the dunes sagebrush lizard does not meet the statutory definition of an endangered or threatened species.

According to FWS, the withdrawal is based on its conclusion that the threats to the species as identified in the proposed rule no longer are as significant as believed at the time of the proposed rule.
FWS originally proposed the dunes sagebrush lizard for listing on the Federal Lists of Endangered and Threatened Wildlife and Plants (commonly referred to as the “Endangered Species List”) on December 14, 2010.

On December 5, 2011, FWS extended its final determination on whether or not to list the dunes sagebrush lizard as endangered until June 14, 2012, due to significant scientific disagreement regarding the sufficiency or accuracy of the available data relevant to the proposed listing.
Under the ESA, it is unlawful for any person to “take” an endangered and threatened species, which means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

FWS regulations define “harm” for purposes of the Act to include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”Environmental groups had been pressuring FWS for years to list the dunes sagebrush lizard on the endangered species list, claiming that the lizard was endangered primarily as a result of rapidly expanding oil and gas development in the Permian Basin of New Mexico and Texas.

Placement of the lizard on the endangered species list would have greatly limited oil and gas activities in its habitat, thus significantly impacting oil and gas production in southeastern New Mexico and west Texas.

This article was prepared by Heather M. Corken ( or 713 651 8386) and Kristen Roche ( or 713 651 5303) from Fulbright’s Environmental Law Practice.