A. California red-legged frog (Rana aurora draytonii)
USFWS Review, Lawsuit Challenging Critical Habitat Designation (Center for Biological Diversity v. Dirk Kempthorne)

In July 2007, U.S. Fish & Wildlife Service (USFWS) Director Dale Hall announced that the agency’s critical habitat designation for the California red-legged frog “should be re-evaluated.” In 2006 USFWS had re-designated critical habitat for the threatened California red-legged frog (CRLF), cutting the original designation from 4.1 million acres down to 450,288 acres. The original designation was designed to overlap core recovery areas identified in the CRLF’s recovery plan (which was finalized in 2002) whereas the 2006 designation partially or entirely excluded many core recovery areas. A series of investigative news articles, followed by agency memos and press releases, cast doubt over decisions by former Deputy Assistant Secretary MacDonald affecting at least eight endangered species (see discussion II D below), including the 2006 CRLF critical habitat designation. On December 19, 2007, the Center for Biological Diversity filed suit challenging the 2006 CH designation, claiming that USFWS has violated the ESA by issuing a critical habitat rule that is not based on the best available science, that (1) does not designate as critical habitat all areas that are essential to the conservation of the species, (2) excludes many thousands of acres by failing to consider all of the conservational, societal, and economic benefits of critical habitat, and (3) is based upon a faulty economic analysis. The lawsuit asks USFWS to initiate a new habitat designation procedure immediately.

B. Mountain yellow-legged frog (Rana muscosa*)
ESA Candidate Status Remains Unchanged for the Sierra Nevada Population

On June 25, 2007, pursuant to an order from the Ninth Circuit Court of Appeals dated October 18, 2006, USFWS issued an amended 12-month finding on a petition to list the Sierra Nevada Distinct Population Segment of the mountain yellow-legged frog, retaining its previous “warranted but precluded” decision. In other words, the Sierra Nevada mountain yellow-legged frog remains on the candidate list awaiting ESA protection. The “warranted but precluded” decision agreed with petitioning conservationists that the mountain yellow-legged frog deserves listing as an endangered species, but that listing is made impossible due to “expeditious progress” on the listing of other species and lack of funds. This is the same decision the agency made more than four years ago, despite the emergence of new scientific evidence about the perilous status of the Sierra Nevada population. The Center for Biological Diversity and Pacific Rivers Council submitted a formal petition to list the mountain yellow-legged frog in February 2000 and subsequently filed suit in May 2001 to compel the service to respond to the listing petition. [* The fact that two species of mountain yellow-legged frog are now recognized in the Sierra Nevada was not addressed in the petition or the Ninth Circuit’s ruling.]

C.Columbia Spotted Frog (Rana luteiventris)
Candidate Status downgraded

In December of 2007 USFWS announced that due to the development of conservation agreements for the Columbia spotted frog – a 10-year Conservation Agreement and Strategy for both the Northeast and the Toiyabe subpopulations in Nevada (in 2003) and a Candidate Conservation Agreement for the Owyhee subpopulation in Idaho (in 2006) – the agency downgraded the species from a rank of 3 to 9. (See candidate review discussion at II C below for information on this and other amphibian candidates for listing.)

D. Chiricahua Leopard Frog (Rana chiricahuensis)
Final Recovery Plan Released

On June 4, 2007, USFWS released its Final Recovery Plan for the Chiricahua leopard frog, five years after the species was listed as threatened. The Plan identifies needed actions to recover the Chiricahua leopard frog, including protection of existing populations and occupied habitats, creation or restoration of additional habitats and populations, control of non-native predators and minimizing spread of disease, the monitoring of the recovery effort and frog populations, research that will facilitate better and more efficient recovery, and adaptive management Currently the ESA does not specify when a recovery plan must be completed. USFWS has a policy calling for recovery plans to be completed within three years of listing but rarely does the agency meet this goal. The average time for completion of a recovery plan completion is about six years. Under the Clinton administration the federal government completed roughly 72 recovery plans annually, but that average has fallen to 16 a year under President George W. Bush.

E. Yosemite Toad (Bufo canorus)
Court Decision on Wilderness Packstock Impacts (High Sierra Hikers Assn. V. Bernie Weingardt)

On October 30, 2007, the Northern District federal court issued a ruling against the U.S. Forest Service’s allowance of special use permits for commercial packstock operations in the Ansel Adams and John Muir Wilderness areas in part due to impacts on the Yosemite toad and its habitat. Previously, in 2002, the court ordered the Forest Service to complete a cumulative impacts analysis and a site-specific analysis for each special use permittee for packstock; the court also ordered interim protective measures, such as a reduction in maximum packstock group size and implementation of trailhead quotas. Both sides appealed to the Ninth Circuit which ruled that the “Forest Service’s decision to grant permits at their pre-existing levels in the face of documented damage resulting from overuse does not have rational validity.” The Ninth Circuit also found, among other things, that (1) the survey methodology was unreliable; and (2) the Forest Service violated NEPA by failing to take a hard look at the harm to the Yosemite Toad. The parties are working with the district court to determine how to proceed.

F. Arroyo Toad (Bufo californicus)
Legal Action Challenging Critical Habitat Designation (Center for Biological Diversity v. U.S. Fish and Wildlife Service)

On December 19, 2007, the Center for Biological Diversity filed suit challenging the 2005 critical habitat designation for the arroyo toad. The toad was listed as an endangered species in 1994. The USFWS designated 182,360 acres of critical habitat in 2001. In response to an industry lawsuit, the agency issued a new designation in 2005 of 11,695 acres, a reduction of 98%. The Center’s lawsuit claims that the 2005 designation is illegal due to an arbitrary identification of costs and benefits of critical habitat, illegal exclusions of habitat from the final designation, public participation irregularities and violations, and unsupported definitions of “occupied” and “unoccupied” habitat, among other defects. The lawsuit asks that USFWS issue a revised critical habitat designation for the arroyo toad that corrects these errors and otherwise provides for the conservation of the species. (See discussion II D below for more information on USFWS review of this and 7 other ESA decisions).

G. California Tiger Salamander (Ambystoma californiense)
State Appeals Court Ruling to Initiate Species Protection Process

On February 26, 2007 the California Fish and Game Commission appealed a superior court ruling that ordered the Commission to accept the initial petition to list the California tiger salamander (CTS) under the California Endangered Species Act (CESA), declare CTS a candidate species, and proceed with the listing process. Previously, in October 2004, the Commission voted to reject the Center for Biological Diversity’s petition to list the California Tiger Salamander as an endangered species, having rejected a similar petition by the same proponents in 2001.

II. MULTI-SPECIES ACTIONS

A. Siskyou Mountains Salamander (Plethodon stormi) and Scott Bar Salamander (Plethodon asupak)

1. Legal Action to Reinstate State Protection (Environmental Protection Information

Center v. California Department of Fish and Game) On January 12, 2007, a San Francisco Superior Court Judge ruled that the California Department of Fish and Game (DFG) cannot remove California Endangered Species Act (CESA) protection for the Scott Bar salamander. Formerly considered a subpopulation of the Siskiyou Mountains salamander, which is listed as a threatened species under CESA, the Scott Bar salamander was described as a new species in May 2005. This decision clarifies that only the Fish and Game Commission, and not DFG, can remove protection for species under CESA.

2. Federal ESA Status Review Initiated

On March 29, 2007, USFWS announced it will consider ESA protection for the Siskyou mountains salamander and the Scott Bar salamander. The agency published a positive 90-day finding and initiated 12-month review, finding that the petition filed by a coalition of conservation groups presents substantial information that listing of the two species across all or a portion of their ranges may be warranted based on the threatened destruction, modification, or
curtailment of their habitat and ranges. This finding initiates a status review of these species so that the agency can gather more scientific data on the two salamander species.

B. Court Rules on California’s Fish Stocking Practices (Pacific Rivers Council v. California Department of Fish and Game)

In May of 2007, Judge Patrick Marlette of the Sacramento Superior Court ruled that California’s fish stocking program must comply with the California Environmental Quality Act (CEQA) and that the Department of Fish and Game shall conduct a public review of the program’s impacts. The ruling is in response to a lawsuit filed in October of 2006 by the Pacific Rivers Council and the Center for Biological Diversity over the Department’s longstanding failure to consider the impacts of fish stocking on sensitive aquatic species throughout the state, including nine amphibian species (see Table 1). The judge ruled that “[i]n this case, there is little doubt that…respondent's fish stocking program has significant environmental impacts on the aquatic ecosystems into which hatchery fish are introduced, and, in particular, on native species of fish, amphibians and insects, some of which are threatened or endangered.” The environmental review of the Department’s statewide fish stocking practices will begin in early 2008.

Table 1: Native Amphibians Impacted by CDFG Fish Stocking Practices

C. 2007 ESA Candidate List Update

Each year the USFWS publishes a Candidate Notice of Review (CNOR), an updated list of plant and animal species native to the United States that are candidates for listing under the ESA. In 2007 USFWS added one new Western amphibian species candidate, downgraded the “threat” status of another, and retained four other species on the list (i.e., denying them ESA protection). (See Table 2 below.) The new candidate species is the Arizona tree frog (Hyla wrightorum) Huachuca/Canelo Distinct Population Segment (DPS). The agency placed the tree frog on the candidate list because “[e]vidence exists that the DPS persists in an ecological setting that is unique for the taxon, that loss of population segment would result in a significant gap in the range of the taxon, and that the population segment differs markedly from other populations of the species in its genetic characteristics.” The downgraded candidate is the Columbia spotted frog (Rana luteiventris), which has remained on the candidate list for 15 years.

Table 2: 2007 ESA Candidate List for Western Amphibians

Source: Federal Register, Vol. 72, No. 234, Thursday, December 6, 2007.
a – The FWS ranks candidate species from 1 – 12, with 1 having the highest listing priority and 12 the lowest; 3 is
the highest rank available for a subspecies or population.
b – this species was newly added to the list in 2007.

D. FWS Review of Multiple ESA Decisions

On November 23, 2007, the USFWS announced that it would review seven decisions made under the ESA, including recent critical habitat designations for the California red-legged frog and arroyo toad, after questions were raised about the integrity of the scientific information used and whether the decisions made were consistent with appropriate legal standards. The decisions were finalized by former Deputy Assistant Secretary for Fish, Wildlife and Parks Julie MacDonald who resigned May 1, 2007. In a press release about the review, USFWS Director H. Dale Hall stated: “The integrity of the Endangered Species Act and the decisions made under its authority depend on the rigorous and impartial analysis of scientific evidence, as well as consistent application of the legal standards of the Act and our regulations.” However, no timeline has been set for the reviews, nor has the Director indicated what actions, if any, will ensue. The Government Accountability Office and the Inspector General also are currently conducting investigations of decisions by MacDonald and other high level officials in the Department of Interior and the U.S. Fish and Wildlife Service.

For more information contact:
Deanna Spooner, Pacific Rivers Council
PO Box 10798, Eugene, OR 97440
541-345-0119 or deanna@pacrivers.org

Check out PRC’s amphibian conservation work at http://www.pacrivers.org