Ninth Circuit denies endangered species protections to Arizona snake

SAN FRANCISCO (CN) — A Ninth Circuit Court of Appeals panel sided with the U.S. Fish and Wildlife Service on Friday to deny Endangered Species Act protections to the Tucson shovel-nosed snake, ruling that the snake wasn’t distinct enough from the western shovel-nosed snake.

The panel affirmed a lower court decision in a memorandum where they said that despite its unique skin coloration, the snake was not genetically different enough from the existing snakes to qualify as a separate subspecies.

“The documents underlying CBD’s second petition rested on the outdated view that ’the consideration of color pattern was necessary in defining subspecies populations,’” the panel said.

The panel said that the snake’s significant genetic similarities were a more important factor and the center’s petition did not include substantial scientific evidence to warrant its own subspecies.

The judges were equally skeptical of arguments that the Tucson snakes needed extra protection because of fungal diseases affecting the larger snake population in Arizona.

“Reports that birds get the flu, without more, would not necessarily mean listing the pigeon as endangered may be warranted," the panel wrote in its conclusion.

The Center for Biological Diversity, which brought the lawsuit in early 2022, claims the snake should be considered its own subspecies and placed on the endangered species list. Meanwhile, Fish and Wildlife argues that the Tucson snake is only a regional class of the Sonoron snake, not a separate subspecies, and is not in danger of becoming extinct.

The center claims at least 39% of the snake’s habitat, confined to Maricopa and Pinal counties in the northern Sonoran Desert of central Arizona, has been eliminated by agriculture and urban development with the rest likely to be developed in the near future, signaling impending doom for the subspecies.

The panel of judges heard oral arguments on the matter in early November following an appeal after an Arizona judge sided with the service.

The center first petitioned the service to list the Tucson snake, known for its distinct red and black color pattern, as endangered in 2004, and again in 2020 after the U.S. Fish and Wildlife Service rejected the petition.

“The U.S. Fish and Wildlife Service wrongly denied the Tucson shovel-nosed snake, but it’s really hard to get courts to second guess them when it’s a question of interpreting genetics,” said Noah Greenwald, endangered species director at the Center for Biological Diversity. “The frustrating thing is that the leading expert on the species told them they got it wrong, and in their view, it was just too much work to reconsider.”

Greenwald added that more genetics work is in progress on the species, and he anticipates the center will seek protection for the species once again in the future.

A spokesperson for the U.S. Fish and Wildlife Service declined to comment, saying the service does not comment on active litigation.

Fish and Wildlife initially agreed with the center when it first petitioned for protections in 2004, and in 2008 placed the Tucson shovel-nosed on the waiting list for protections, prioritizing more jeopardized critters.

But Fish and Wildlife, relying on a 2014 U.S. Geological Survey study of the western shovel-nosed snake, later found that the Tucson shovel-nosed falls into the same subspecies category as a larger group — the Sonoran shovel-nosed — whose habitat range stretches 200 miles west to the California border and covers 2.4 times the land area previously thought by the center.

After the Fish and Wildlife reversed course in 2014, the center replied with a letter from the late Dr. Phil Rosen, a leading expert on western shovel-nosed snakes, laying out the errors in the service’s determination.

In 2020, the center filed a new petition, citing Rosen’s letter and a research article he co-authored separating the Tucson shovel-nosed from the larger Sonoran subspecies. Rosen’s main argument was the snake’s unique coloration, which he hypothesized is an evolutionary response to living in the low desert, defines it better than genetics, which would include genetically similar snakes adapted to different environments.

The panel of judges included U.S. Circuit Judges Richard Paez and John Owens, appointed by Bill Clinton and Barack Obama, respectively, and U.S. District Judge Richard Seeborg, a Barack Obama appointee sitting with the panel by designation from the Northern District of California.