[Federal Register: June 13, 2002 (Volume 67, Number 114)]
[Rules and Regulations]               
[Page 40789-40811]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 40789]]


Part III

Department of the Interior


Fish and Wildlife Service


50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Listing of the 
Chiricahua Leopard Frog (Rana chiricahuensis); Final Rule

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Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF41

Endangered and Threatened Wildlife and Plants; Listing of the 
Chiricahua Leopard Frog (Rana chiricahuensis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule with a special rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
the Chiricahua leopard frog (Rana chiricahuensis) as a threatened 
species pursuant to the Endangered Species Act of 1973, as amended 
(Act) throughout its range. The Chiricahua leopard frog is now absent 
from more than 75 percent of its historical sites and numerous mountain 
ranges, valleys, and drainages within its former range. In areas where 
it is still present, populations are often small, widely scattered, and 
occupy marginal and dynamic habitats. Known threats include habitat 
alteration, destruction, and fragmentation, predation by nonnative 
organisms, and disease. This final rule will implement Federal 
protection to this species and provide funding for development and 
implementation of recovery actions. Concurrently with publication of 
this final rule, we are publishing a special rule under section 4(d) of 
the Act. Under the special rule, take of Chiricahua leopard frog caused 
by livestock use of or maintenance activities at livestock tanks 
located on private, State, or Tribal lands would be exempt from the 
prohibition of section 9 of the Act.

EFFECTIVE DATES: This rule is effective July 15, 2002.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment and during normal business hours, at the 
Arizona Ecological Services Field Office, U.S. Fish and Wildlife 
Service, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ, 85021-4951, 
telephone; 602/242-0210, facsimile; 602/242-2513, website; http://

FOR FURTHER INFORMATION CONTACT: James Rorabaugh, Herpetologist, 
Arizona Ecological Services Field Office (see ADDRESSES section).



    Leopard frogs (Rana pipiens complex), long considered to consist of 
a few highly variable taxa, are now recognized as a diverse assemblage 
of 17 or more species (American Museum of Natural History 2001, Hillis 
et al. 1983), with many of these described in the last 30 years. Mecham 
(1968) recognized two distinct variations of ``Rana pipiens,'' or the 
northern leopard frog, in the White Mountains of Arizona. One of these, 
referred to as the ``southern form,'' was depicted as a stocky frog 
with raised folds down both sides of the back (dorsolateral folds) that 
were interrupted and deflected medially towards the rear. The other 
form matched previous descriptions of Rana pipiens. Based on 
morphology, mating calls, and genetic analyses (electrophoretic 
comparisons of blood proteins), Platz and Platz (1973) demonstrated 
that at least three distinct forms of leopard frogs occurred in 
Arizona, including the southern form. This southern form was 
subsequently described as the Chiricahua leopard frog (Rana 
chiricahuensis) (Platz and Mecham 1979).
    This new species was distinguished from other members of the Rana 
pipiens complex by a combination of characters, including a distinctive 
pattern on the rear of the thigh consisting of small, raised, cream-
colored spots or tubercles on a dark background, dorsolateral folds 
that were interrupted and deflected medially, stocky body proportions, 
relatively rough skin on the back and sides, and often green coloration 
on the head and back (Platz and Mecham 1979). The species also has a 
distinctive call consisting of a relatively long snore of one to two 
seconds in duration (Davidson 1996, Platz and Mecham 1979). Snout-vent 
lengths of adults range from approximately 54 to 139 millimeters (mm) 
(2.1 to 5.4 inches (in)) (Stebbins 1985, Platz and Mecham 1979). The 
Ramsey Canyon leopard frog (Rana subaquavocalis) is very similar in 
appearance to the Chiricahua leopard frog, but it often grows to the 
largest size range given for the Chiricahua leopard frog and has a call 
that is typically given under water (Platz 1993).
    Recent articles in the scientific literature report the extirpation 
and extinction of amphibians in many parts of the world (Houlahan et 
al. 2000; Berger et al. 1998; Lips 1998, 1999; Laurence et al. 1996; 
Vial and Saylor 1993; Pechmann et al. 1991; Blaustein and Wake 1990). 
In the United States, frogs in the family Ranidae, which includes the 
Chiricahua leopard frog, are particularly affected (Sredl et al. 1997, 
Sredl 1993, Bradford 1991, Clarkson and Rorabaugh 1989, Hayes and 
Jennings 1986, Corn and Fogleman 1984). These population declines 
result in many cases from habitat loss or predation by introduced 
predaceous fishes, amphibians, and crayfish (Fernandez and Rosen 1996; 
Rosen et al. 1996a, 1994; Hayes and Jennings 1986); however, 
populations are sometimes extirpated from seemingly pristine habitats, 
often at higher elevation, montane locales (Meyer and Mikesic 1998, 
Sredl 1993, Drost and Fellers 1993, Corn and Fogleman 1984, Hines et 
al. 1981). In the last few years, the role of infectious diseases has 
been recognized as a key factor in amphibian declines in seemingly 
pristine areas (Carey et al. 2001, 1999; Daszak et al. 1999). A fungal 
skin disease, chytridiomycosis, has been linked to amphibian decline in 
many parts of the world (Berger et al. 1998, Speare and Berger 2000), 
including the Chiricahua leopard frog in Arizona (Sredl 2000, Sredl and 
Caldwell 2000) and New Mexico (C. Painter, New Mexico Department of 
Game and Fish, pers. comm. 2001). A number of other factors have been 
identified as causes or possible causes of global amphibian decline; 
although their role in the declining status of the Chiricahua leopard 
frog is poorly studied or unknown, they may be contributing causal 
factors. They include climate change or climatic extremes (Alexander 
and Eischeid 2001, Pounds et al. 1999, Fellers and Drost 1993, Dimmitt 
1979); transport (sometimes over long distances) and deposition of 
contaminants, dust, gases (Stallard 2001), and pesticides (Cowman et 
al. 2001, Davidson et al. 2001, Lips 1998); increased levels of 
ultraviolet-B radiation and interactions with pathogens, particularly a 
water mold (Saprolegnia ferax) (Blaustein et al. 1994, Keisecker and 
Blaustein 1995); acid rain (Vatnick et al. 1999, Blanchard and 
Stromberg 1987); cadmium and arsenic contamination (Hale and Jarchow 
1988); and over-collection (Jennings and Hayes 1985). Furthermore, 
factors are likely working in synergy to exacerbate deleterious effects 
(Carey et al. 2001, 1999; Keisecker et al. 2001, Middleton et al. 2001, 
Vatnick et al. 1999, Keisecker and Blaustein 1995). Increased 
extirpation rates and in some cases extinction, coupled with recent 
declining trends in the status of many amphibian populations worldwide, 
are alarming and represent a very recent and rapid global decline of an 
entire class of vertebrates on all six continents on which they live 
(Carey et al. 1999, Blaustein et al. 1994, Wake 1991).
    The Chiricahua leopard frog is known currently or historically from 
cienegas (mid-elevation wetland communities

[[Page 40791]]

often surrounded by arid environments), pools, livestock tanks (i.e., 
small earthen ponds), lakes, reservoirs, streams, and rivers at 
elevations of 1,000 to 2,710 meters (m) (3,281 to 8,890 feet (ft)) in 
central and southeastern Arizona; west-central and southwestern New 
Mexico; and, in Mexico, northern Sonora and the Sierra Madre Occidental 
of Chihuahua and Durango (Sredl and Jennings in press, Sredl et al. 
1997, Degenhardt et al. 1996, McCranie and Wilson 1987, Platz and 
Mecham 1984, 1979). The range of the species is divided into two parts, 
including--(1) a southern group of populations (the majority of the 
species' range) located in mountains and valleys south of the Gila 
River in southeastern Arizona, extreme southwestern New Mexico, and 
Mexico; and (2) northern montane populations in west central New Mexico 
and along the Mogollon Rim in central and eastern Arizona (Platz and 
Mecham 1979). Historical records exist for Pima, Santa Cruz, Cochise, 
Graham, Apache, Greenlee, Gila, Coconino, Navajo, and Yavapai Counties, 
AZ, and Catron, Grant, Hidalgo, Luna, Soccoro, and Sierra Counties, NM 
(Sredl et al. 1997, Degenhardt et al. 1996).
    The distribution of the Chiricahua leopard frog in Mexico is 
unclear. The species has been reported from northern Sonora, Chihuahua, 
and Durango (Hillis et al. 1983, Platz and Mecham 1984, 1979) and, more 
recently, from the State of Aguascalientes (Diaz and Diaz 1997). 
However, Webb and Baker (1984) concluded that frogs from southern 
Chihuahua were not Chiricahua leopard frogs, as expected. The taxonomic 
status of chiricahuensis-like frogs in Mexico from southern Chihuahua 
to the State of Aguascalientes is unclear and in this region another 
leopard frog, Rana montezumae, may be mistaken for the Chiricahua 
leopard frog.
    Recent genetic analyses, including a 50-loci (location of a gene on 
a chromosome) starch gel survey, morphometrics, and analyses of nuclear 
DNA supports describing the northern, or Mogollon Rim populations in 
Arizona of the Chiricahua leopard frog as a distinct species (Platz and 
Grudzien 1999). Multiple haplotypes (sets of genes inherited as a unit) 
within chiricahuensis were also identified using mitochondrial DNA 
analysis (Benedict and Quinn 1999), providing further evidence of 
genetically distinct population segments. If the species is split into 
two or more distinct taxa, fewer populations would exist within each 
taxon, increasing the level of endangerment for each.
    Chiricahua leopard frogs have been either collected or observed at 
231 sites in Arizona (B. Kuvlesky, Buenos Aires National Wildlife 
Refuge, pers. comm. 1997; Terry Myers, Apache Sitgreaves National 
Forest, pers. comm. 1997; Sredl et al. 1997; Rosen et al. 1996a&b; 
Snyder et al. 1996; C. Schwalbe, University of Arizona, pers. comm. 
1995; R. Zweifel, Portal, Arizona, pers. comm. 1995; Hale 1992; 
Clarkson and Rorabaugh 1989; Fish and Wildlife Service files, Phoenix, 
Arizona). In New Mexico the species has been either collected or 
observed at 182 sites (Painter 2000). Eleven historical sites were 
listed by Platz and Mecham (1979) in Mexico, mostly from the eastern 
base and foothills of the Sierra Madre Occidental in Chihuahua and 
Durango, with one site in northern Sonora. Hillis et al. (1983) list 
another site from Durango, and frogs at a site on the Sonora-Chihuahua 
border have been tentatively identified as Chiricahua leopard frogs 
(Holycross 1998). The presence of Chiricahua leopard frogs in the 
Sierra Madre Occidental of southern Chihuahua was questioned by Webb 
and Baker (1984), and as discussed, taxonomic questions complicate 
defining the range of the species in Mexico beyond northern and central 
Chihuahua and northern Sonora.
    Some museums still have many southwestern leopard frogs catalogued 
as Rana pipiens. Once these specimens have been reexamined, additional 
historical sites for Rana chiricahuensis may result. Also, frogs 
observed at some sites in the wild, which may have been Rana 
chiricahuensis, were not positively identified.
    Many collections of Chiricahua leopard frogs were made before 1980 
(Painter 2000, Jennings 1995; Platz and Mecham 1979; Frost and Bagnara 
1977; Mecham 1968). Recent surveys to document the status and 
distribution of the species were conducted primarily from the mid-1980s 
to the present (Painter 2000; Sredl et al. 1997, 1995, 1994, 1993; 
Rosen et al. 1996a; Fernandez and Bagnara 1995; Jennings 1995; 
Rorabaugh et al. 1995; Rosen 1995; Zweifel 1995; Sredl and Howland 
1994, 1992; Hale 1992; Scott 1992; Wood 1991; Clarkson and Rorabaugh 
1991, 1989; Rosen and Schwalbe 1988). These surveys were summarized 
first by Jennings (1995) and then Painter (2000) for New Mexico and by 
Sredl et al. (1997) for Arizona.
    In 1995, Jennings reported Chiricahua leopard frogs still occurred 
at 11 sites in New Mexico. Based on additional work, Painter (2000) 
listed 41 sites at which Chiricahua leopard frogs were found from 1994 
to 1999. Thirty-three of these are north of Interstate 10 (northern 
populations) and eight are in the southwestern corner of the State 
(southern populations). Thirty-one of the 41 populations were verified 
extant during 1998 and 1999 (Painter 2000). However, during May through 
August 2000, the Chiricahua leopard frog was found extant at only 8 of 
34 of the sites (C. Painter, pers. comm. 2000). Three populations east 
of Hurley in Grant County declined or were extirpated during 1999 and 
2000 (R. Jennings, pers. comm. 2000), and preliminary data indicate 
another population on the Mimbres River, also in Grant County, has 
experienced a significant die-off (C. Painter and R. Jennings, pers. 
comm, 2000).
    Sredl et al. (1997) reported that during 1990 through 1997 
Chiricahua leopard frogs were found at 61 sites in southeastern Arizona 
(southern populations) and 15 sites in central and east-central Arizona 
(northern populations). As a means to make the Arizona and New Mexico 
status information more comparable, the number of sites at which 
Chiricahua leopard frogs were observed from 1994 through 2001 in 
Arizona were tallied. Based on available data, particularly Sredl et 
al. (1997), Rosen et al. (1996b), and Service files, Chiricahua leopard 
frogs were observed at 87 sites in Arizona from 1994 to 2001, including 
21 northern sites and 66 southern sites. Many of these sites have not 
been revisited in recent years; however, evidence suggests some 
populations have recently been extirpated in the Galiuro and Chiricahua 
mountains, while others, most notably in the Buckskin Hills area of the 
Coconino National Forest, have been recently (2000-2001) discovered. In 
2000, the species was also documented for the first time in the 
Baboquivari Mountains, Pima County, Arizona (E. Wallace, pers. comm. 
2000), extending the range of the species approximately 19 kilometers 
(km) (12 miles (mi)) to the west.
    Intensive and extensive surveys were conducted by Arizona Game and 
Fish Department (AGFD) in Arizona from 1990 to 1997 (Sredl et al. 
1997). Included were 656 surveys for ranid frogs (frogs in the family 
Ranidae) within the range of the Chiricahua leopard frog in 
southeastern Arizona. Rosen et al. (1996a&b, 1994), Hale (1992), Wood 
(1991), Clarkson and Rorabaugh (1989), and others have also extensively 
surveyed wetlands in southeastern Arizona. It is unlikely that many 
additional new populations will be found there. A greater potential 
exists for locating frogs at additional sites in Arizona's northern 
region, as several new populations have been discovered on the Coconino 
National Forest in 2000

[[Page 40792]]

and 2001. Sredl et al. (1997) conducted 871 surveys for ranid frogs in 
the range of the northern sites, but report that only 25 of 46 
historical Chiricahua leopard frog sites were surveyed during 1990-
1997. The majority of these unsurveyed historical sites are in the 
mountains north of the Gila River in east-central Arizona. Additional 
extant populations of Chiricahua leopard frogs may occur in this area.
    Of the historical sites in New Mexico, 24 have imprecise site 
information that precludes locating or revisiting them. Many others are 
on private lands to which the owners have denied access to biologists 
(the privately owned Gray and Ladder ranches are notable exceptions). 
As in Arizona, potential habitat within the range of the southern 
populations has been surveyed more extensively than that of the 
northern populations. From 1990 to 1991, Scott (1992) conducted 
extensive surveys of the Gray Ranch, which contains much of the 
Chiricahua leopard frog habitat in southwestern New Mexico. 
Observations from numerous other herpetologists were included in his 
reports, and cowboys and ranch hands were interviewed to locate 
potential habitats. Jennings (1995) surveyed other potential habitats 
in southwestern New Mexico outside of the Gray Ranch in the Peloncillo 
Mountains. Other herpetologists working in that area, including Charles 
Painter (pers. comm. 2001), and Andy Holycross, Arizona State 
University (pers. comm. 1998), also worked extensively in this area. 
Probably few if any unknown populations of Chiricahua leopard frogs 
occur in southwestern New Mexico.
    Surveys in the northern portion of the species' range in New Mexico 
have been less complete. Jennings (1995) believed that the wilderness 
areas of the Gila National Forest have the greatest potential for 
supporting additional extant populations and for securing an intact 
metapopulation that would have a good chance of long-term persistence. 
A metapopulation is an assemblage of populations with some level of 
migration between them, in which individual populations may be extinct 
but can then be recolonized from other populations. Recent surveys 
(1995 to 1999) have discovered four extant populations in the Gila 
Wilderness (Painter 2000).
    In Mexico systematic or intensive surveys for Chiricahua leopard 
frogs have not been conducted. However, it is expected that the species 
almost certainly occurs or occurred at more than the 12 (or 13) 
reported sites in Chihuahua, Sonora, and Durango (Platz and Mecham 
1979, Hillis et al. 1983, and Holycross 1998). Only one site has been 
documented in Sonora, yet many populations occur or occurred in the 
mountain ranges and valleys adjacent to the Sonora border in Arizona. 
Other sites probably occur or occurred in Sonora. The identity of 
leopard frogs in southern Chihuahua (and perhaps Durango) is in some 
question (Webb and Baker 1984). Reports of the species from 
Aguascalientes (Diaz and Diaz 1997) are similarly questionable and 
should be confirmed by genetic analysis.
    The Chiricahua leopard frog is reported absent from a majority of 
surveyed historical sites. For example, in Arizona, Clarkson and 
Rorabaugh (1989) found the species at only 2 of 36 sites that supported 
Chiricahua leopard frogs in the 1960s and 1970s. In New Mexico, 
Jennings (1995) found Chiricahua leopard frogs at 6 of 33 sites 
supporting the species during the previous 11 years. During 1998 to 
1999, Chiricahua leopard frogs were found at 31 of the 41 sites where 
they had been documented after 1993 (Painter 2000); however, subsequent 
surveys in 2000 only revealed frogs at 8 of 34 of these sites (C. 
Painter, pers. comm. 2001). Sredl and Howland (1994) reported finding 
Chiricahua leopard frogs at only 12 of 53 historical sites. In 1994, 
during surveys of 175 wetland sites in southeastern Arizona, Rosen et 
al. (1994) reported the Chiricahua leopard frog was extant at 19 
historical and new sites, but was not found at 32 historical sites. 
Throughout Arizona, Sredl et al. (1997) found the species present at 21 
of 109 historical sites.
    Determining whether a species is declining based on its presence or 
absence at historical sites is difficult. Where frogs are observed at a 
particular site, they are considered extant. However, a failure to find 
frogs does not necessarily indicate the species is absent. Corn (1994) 
notes that leopard frogs may be difficult to detect (the frogs hide by 
movement and camouflage, and are often not vocal), museum records do 
not always represent breeding sites, collections have occurred from 
marginal habitat, and museum and literature records often represent 
surveys over long periods of time, which ignores natural processes of 
geographical extinction and recolonization. These latter natural 
processes may be particularly important for the Chiricahua leopard frog 
because its habitats are often small and very dynamic. Because the 
Chiricahua leopard frog and other southwestern leopard frogs exhibit a 
life history that predisposes them to high rates of extirpation and 
recolonization (Sredl and Howland 1994), absence from at least some 
historical sites is expected.
    However, the failure of experienced observers to find frogs in 
relatively simple aquatic systems such as most stock tanks and stream 
segments indicates that frogs are probably absent. Stock tanks (also 
known as livestock tanks) are defined as an existing or future 
impoundment in an ephemeral drainage or upland site constructed 
primarily as a watering site for livestock. Howland et al. (1997) 
evaluated visual encounter surveys at five leopard frog sites. At sites 
with known populations that were not dry, frogs were detected in 93 of 
100 surveys conducted during the day from April through October. During 
a drought in 1994, Rosen et al. (1996a, 1994) surveyed all Chiricahua 
leopard frog sites known at that time in southeastern Arizona and other 
accessible waters, and discussed locations of waters and faunal 
occurrence with landowners. By focusing on aquatic sites that did not 
go dry, and through careful and often multiple surveys at each site, 
the authors were able to define distribution at a time when aquatic 
faunal patterns were clear. The authors believed that nearly all 
potential habitat was surveyed, and, if frogs were present, they would 
have been detectable at most sites.
    Although Chiricahua leopard frogs were found out at 129 sites from 
1994 to the present, because of the inherent dynamic nature of 
southwestern wetland and riparian habitats (e.g., flooding, drought, 
and human activities), coupled with the increased likelihood of 
extirpation characteristic of small populations, the viability of 
extant populations of the Chiricahua leopard frog is thought, in many 
cases, to be relatively short. As discussed in Factor E of the 
``Summary of Factors Affecting the Species'' section below, 
approximately 38 percent of sites occupied by Chiricahua leopard frogs 
from 1994 to 2001 were artificial tanks or impoundments constructed for 
watering livestock. The dynamic nature of stock tank habitats and the 
small size of the populations that inhabit them suggest that many of 
these populations are not likely to persist for long periods.
    Rosen et al. (1996a) hypothesized that ``the ongoing restriction of 
Chiricahua leopard frogs to shallow, marginal habitat types means that 
eventually the species will be wiped out by a drought (see Fellers and 
Drost 1993, Corn and Fogelman 1984) that it would readily have 
weathered in refugia now pre-empted by nonnative species. Our 
hypothesis clearly predicts that this species will go extinct in 

[[Page 40793]]

Arizona, and probably elsewhere, unless appropriate action is taken.'' 
In New Mexico, Painter (1996) reported similar findings: ``Rana 
chiricahuensis is rapidly disappearing from southwest New Mexico 
(Jennings 1995, pers. obs.). Unless these unexplainable trends are 
quickly reversed, I expect the species to be extirpated from 90 to 100 
percent of its former range in New Mexico within the next decade.''
    Although survey data strongly suggest that the species is absent 
from more than 75 percent of historical sites (Painter 2000, Sredl et 
al. 1997, Jennings 1995), we include here further analysis to 
investigate whether extirpations represent natural fluctuations or 
long-term declines caused by human impacts (Blaustein et al. 1994, 
Pechman et al. 1991).
    Numerous studies indicate that declines and extirpations of 
Chiricahua leopard frogs are at least in part caused by predation and 
possibly competition by nonnative organisms, including fishes in the 
family Centrarchidae (Micropterus spp., Lepomis spp.), bullfrogs (Rana 
catesbeiana), tiger salamanders (Ambystoma tigrinum mavortium), 
crayfish (Oronectes virilis and possibly others), and several other 
species of fishes, including, in particular, catfishes (Ictalurus spp. 
and Pylodictus oliveris) and trout (Oncorhynchus spp. (=Salmo) and 
Salvelinus spp.) (Fernandez and Rosen 1998, Rosen et al. 1996a, 1994; 
Snyder et al. 1996; Fernandez and Bagnara 1995; Sredl and Howland 1994; 
Clarkson and Rorabaugh 1989). For instance, in the Chiricahua region of 
southeastern Arizona, Rosen et al. (1996a) found that almost all 
perennial waters investigated that lacked introduced predatory 
vertebrates supported Chiricahua leopard frogs. All waters except three 
that supported introduced vertebrate predators lacked Chiricahua 
leopard frogs. The authors noted an alarming expansion of nonnative 
predatory vertebrates over the last two decades. In the Chiricahua 
region, Chiricahua leopard frogs were primarily limited to habitats 
subject to drying or near drying, such as stock tanks. These habitats 
are not favored by nonnative predatory fishes and bullfrogs, but 
because they are not stable aquatic habitats they are marginal for 
leopard frogs (Rosen et al. 1994).
    Additional evidence that the observed absence of Chiricahua leopard 
frogs from historical sites is not the result of a natural phenomenon 
emerges from analysis of regional occurrence. If the extirpation of the 
Chiricahua leopard frog was a natural consequence of metapopulation 
dynamics or other population level processes, then an observer would 
not expect to find the species absent from large portions of its range. 
Rather, Chiricahua leopard frogs might be absent from some historical 
sites, but would still be found at other new or historical sites in the 
region. In New Mexico, Painter (2000) reported that, with the possible 
exception of the Yaqui River drainage, extant Chiricahua leopard frog 
populations occur in each of the six major drainages where the species 
was found historically (Tularosa/San Francisco, Mimbres, Alamosa/Seco/
Rio Grande, Gila, Playas, and Yaqui). However, occurrence of the frog 
in these drainages is characterized by few, mostly small, isolated 
populations. Populations in the Playas drainage are probably limited to 
two introduced populations in steep-sided livestock tanks from which 
frogs cannot escape (Painter 2000). The species was not found on the 
mainstem, Middle Fork, or East Fork of the Gila River, where the 
species occurred historically at many sites.
    In Arizona, the species is still extant in seven of eight major 
drainages of historical occurrence (Salt, Verde, Gila, San Pedro, Santa 
Cruz, Yaqui/Bavispe, and Magdalena river drainages), but appears to be 
extirpated from the Little Colorado River drainage on the northern edge 
of the species' range. Within the extant drainages, the species was not 
found recently in some major tributaries and/or from river mainstems. 
For instance, the species was not reported from 1995 to the present 
from the following drainages or river mainstems where it historically 
occurred: White River, West Clear Creek, Tonto Creek, Verde River 
mainstem, San Francisco River, San Carlos River, upper San Pedro River 
mainstem, Santa Cruz River mainstem, Aravaipa Creek, Babocomari River 
mainstem, and Sonoita Creek mainstem. In southeastern Arizona, no 
recent records (1995 to the present) exist for the following mountain 
ranges or valleys: Pinaleno Mountains, Peloncillo Mountains, Sulphur 
Springs Valley, and Huachuca Mountains. Moreover, the species is now 
absent from all but one of the southeastern Arizona valley bottom 
cienega complexes. The Chiricahua leopard frog is known or suspected to 
have been historically present, and at least in some cases, very 
abundant (Wright and Wright 1949) in each major southeastern Arizona 
valley bottom cienega complex. It is thought to be breeding in small 
numbers in the Empire Cienega, but is absent as a breeding species from 
all others, including Arivaca Cienega, upper Santa Cruz Valley 
cienegas, Babocomari Cienega, marshy bottoms of the upper San Pedro 
River, Whitewater Creek and Hooker Cienega in the Sulphur Springs 
Valley, Black Draw and associated cienegas, and San Simon Cienega. 
Three frogs were recently observed at the O'Donnell Creek cienega, but 
these appear to be immigrants from nearby populations (P. Rosen, pers. 
comm. 2000). These large, valley bottom cienega complexes may have 
supported the largest populations in southeastern Arizona, but are now 
so overrun with nonnative predators that they do not presently support 
the Chiricahua leopard frog in viable numbers (Rosen et al. in press). 
These apparent regional extirpations provide further evidence that the 
species is disappearing from its range. Once extirpated from a region, 
natural recolonization of suitable habitats is unlikely to occur in the 
near future.
    Where the species is still extant, sometimes several small 
populations are found in close proximity, suggesting metapopulations 
are important for preventing regional extirpation (Sredl et al. 1997). 
Disruption of metapopulation dynamics is likely an important factor in 
regional loss of populations (Sredl et al. 1997, Sredl and Howland 
1994). Chiricahua leopard frog populations are often small and their 
habitats are dynamic, resulting in a relatively low probability of 
long-term population persistence. However, if populations are 
relatively close together and numerous, extirpated sites can be 
    Human disturbances can result in increased rates of extinction and 
decreased rates of recolonization. If the extinction rate for a given 
population exceeds the colonization rate, that population will go 
extinct (Hanski 1991). Various human impacts (see ``Summary of Factors 
Affecting the Species'' section) can result in increased extinction 
rates and increased isolation of populations within a metapopulation 
with resulting decreased colonization rates. In addition, big rivers, 
cienega complexes, lakes, and reservoirs that once probably supported 
large populations of Chiricahua leopard frogs, and were likely stable 
source populations for dispersal to smaller sites, are almost all 
inhabited by nonnative predators and thus are unsuitable as habitat for 
this species (Sredl et al. 1997, Rosen et al. 1996a, Sredl and Howland 
1994). The currently extant smaller populations almost certainly 
exhibit greater extinction rates than these larger populations did 
historically, increasing the importance of metapopulations for 
maintaining viable populations or groups of frog populations. However, 
pathogens may

[[Page 40794]]

counter some of the beneficial aspects of metapopulations. Once 
introduced into a metapopulation, a disease such as chytridiomycosis 
can spread to and eliminate groups of adjacent populations as frogs 
move between wetland sites. This is the most reasonable explanation of 
extirpation of the Chiricahua leopard frog from a metapopulation of 
stock tanks in New Mexico (Declining Amphibian Populations Task Force 
1993, R. Jennings, pers. comm. 2000).

Previous Federal Action

    Based on status information indicating the species was recently 
extirpated from historical sites (Clarkson et al. 1986, Clarkson and 
Rorabaugh 1989), the Chiricahua leopard frog was added to the list of 
category 2 candidate species with the publication of a comprehensive 
Notice of Review on November 21, 1991 (56 FR 58804). We also included 
the species as a category 2 candidate in the November 15, 1994, Notice 
of Review (59 FR 58982). Category 2 candidates were those taxa for 
which we had some evidence of vulnerability and threats, but for which 
we lacked sufficient data to support a listing proposal.
    We elevated the Chiricahua leopard frog to category 1 candidate 
status on July 11, 1994. This change in the status of the species came 
too late to appear in the November 15, 1994, Notice of Review. Category 
1 candidates were taxa for which we had on file sufficient information 
on biological vulnerability and threats to support proposals to list 
them as endangered or threatened, but for which preparation of listing 
proposals was precluded by higher priority listing actions.
    Beginning with our February 28, 1996, Candidate Notice of Review 
(61 FR 7596), we discontinued the designation of multiple categories of 
candidates, and only those taxa meeting the definition for former 
category 1 candidates are now considered candidates for listing 
purposes. In the February 28, 1996, notice, we identified the 
Chiricahua leopard frog as a candidate species.
    On June 10, 1998, we received a petition dated June 4, 1998, from 
the Southwest Center for Biological Diversity to list the Chiricahua 
leopard frog as endangered and to designate critical habitat for the 
species. In a letter dated July 7, 1998, we informed the petitioner 
that pursuant to the Service's July 1996 Petition Management Guidance, 
we consider candidate species to be under petition and covered by a 
``warranted but precluded'' finding under section 4(b)(3)(B)(iii) of 
the Act. The petitioner filed a complaint for declaratory and 
injunctive relief with the Arizona District Court on August 25, 1999, 
which asked the court to require the Secretary of the Interior to take 
action on the petition. We published the proposed rule to list the 
Chiricahua leopard frog in the Federal Register on June 14, 2000 (65 FR 
37343). In that same rule we also published a proposed special rule 
that we are finalizing as discussed below.
    On August 29, 2001, the Service announced a settlement agreement in 
response to litigation by the Center for Biological Diversity, the 
Southern Appalachian Biodiversity Project, and the California Native 
Plant Society. Terms of the agreement require that we submit to the 
Federal Register, on or before June 6, 2002, a final listing and 
critical habitat decision for the Chiricahua leopard frog. This 
agreement was entered by the court on October 2, 2001 (Center for 
Biological Diversity, et al. v. Norton, Civ. No. 01-2063 (JR) 

Special Rule

    Concurrently with publication of this final rule to list the 
Chiricahua leopard frog as threatened, we are publishing a special rule 
under section 4(d) of the Act to amend regulations at 50 CFR 17.43. The 
special rule replaces the Act's general prohibitions against take of 
the Chiricahua leopard frog with special measures tailored to the 
conservation of the species on all non-Federal lands. Through the 
maintenance and operation of the stock tanks for cattle, habitat is 
provided for the leopard frogs, hence there is a conservation benefit 
to the species. Under the special rule, take of Chiricahua leopard frog 
caused by livestock use of or maintenance activities at livestock tanks 
located on private, State, or Tribal lands would be exempt from section 
9 of the Act. See Summary of Factors for more information on take. As 
noted above, a livestock tank is defined as an existing or future 
impoundment in an ephemeral drainage or upland site constructed 
primarily as a watering site for livestock. The rule targets tanks on 
private, State, and Tribal lands to encourage landowners and ranchers 
to continue to maintain these tanks as they provide habitat for the 
frogs. Livestock use and maintenance of tanks on Federal lands will be 
addressed through the section 7 process. When a Federal action, such as 
permitting livestock grazing on Federal lands, may affect a listed 
species, consultation between us and the action agency is required 
pursuant to section 7 of the Act. The conclusion of consultation may 
include mandatory changes in livestock programs in the form of measures 
to minimize take of a listed animal or to avoid jeopardizing the 
continued existence of a listed species. Changes in a proposed action 
resulting from consultations are almost always minor. (See our response 
to Issue 8 and Factor A in the Summary of Factors for further 

Summary of Comments and Recommendations

    In the June 14, 2000, proposed rule and associated notifications, 
we requested that all interested parties submit factual reports or 
information that might contribute to the development of this final 
rule. The comment period for the proposed rule was initially open from 
June 14 through September 12, 2000. In a September 27, 2000, Federal 
Register notice (65 FR 58032), we reopened the comment period from 
September 27 through November 13, 2000, announced two public hearings, 
and clarified the proposed special rule that accompanied the proposed 
rule. We contacted four peer reviewers; appropriate elected officials 
from State, Federal, and local governments; Mexican, Tribal, Federal, 
and State agencies; county and city governments; scientific 
organizations; and other interested parties and requested that they 
comment. We published legal notices in the following newspapers 
announcing the proposal and inviting comment: Arizona Business Gazette 
(July 6, 2000), Tucson Citizen (June 28, 2000), Arizona Daily Star 
(June 28, 2000), Albuquerque Journal (June 28, 2000), Albuquerque 
Tribune (June 28, 2000), Sierra Vista Herald (June 27, 2000), Bisbee 
Daily Review (June 27, 2000), Silver City Daily Press (June 26, 2000), 
and the White Mountain Independent (June 30, 2000). To announce the 
reopening of the comment period, public hearings, and the clarification 
of the special rule, we published legal notices in the Arizona Republic 
(October 5, 2000), Tucson Citizen (October 2, 2000), Arizona Daily Star 
(October 2, 2000), Sierra Vista Herald (September 29, 2000), Bisbee 
Daily Review (September 29, 2000), Silver City Daily Press (September 
28, 2000), and White Mountain Independent (October 3, 2000). We 
received 23 comment letters. Nine of these opposed, seven supported, 
and seven were neutral on the proposed listing action. The breakdown of 
the comments included two from Federal agencies, two from State 
agencies, one from a County, ten from organizations or corporations, 
and eight from

[[Page 40795]]

individuals. These included the letters from the four peer reviewers 
(two from State agencies and two from individuals). We also received 11 
requests for public hearings. In response to those requests, public 
hearings were held in Silver City, New Mexico, on October 10, 2000, and 
in Bisbee, Arizona on October 11, 2000. Thirteen people attended the 
hearing in Silver City, during which four individuals and two 
representatives of organizations provided oral comments. Six people 
attended the hearing in Bisbee; two individuals provided oral comments. 
In total, four of the commenters at the hearings supported and one 
opposed listing, and three provided additional information or asked 
    We updated the final rule to reflect comments and information we 
received during the comment period. We address opposing comments and 
other substantive comments concerning the rule below. Comments of a 
similar nature or point are grouped together (referred to as ``Issues'' 
for the purpose of this summary) below, along with our response to 
    Issue 1: The frog should be protected under a conservation 
agreement in lieu of listing. Several commenters commented that the 
Chiricahua leopard frog would be better protected under a conservation 
agreement in lieu of listing as threatened. Commenters noted that 
conservation efforts are underway for the species in several areas that 
could serve as models for conservation strategies and agreements, and 
that ranchers and others are more likely to work with the Service on 
conservation if the species is not listed.
    Response: Valuable conservation efforts have been undertaken for 
the Chiricahua leopard frog in Arizona on the Tonto National Forest 
near Young (Sredl and Healy 1999), in the San Bernardino Valley (Rosen 
and Schwalbe 2000; Biology 150, Douglas High School 1998), and Buenos 
Aires National Wildlife Refuge (Schwalbe and Rosen 2001, Schwalbe et 
al. 2000), and in New Mexico on the Mimbres River, as described in the 
proposed rule. As mentioned by the commenters, these efforts are models 
for future conservation of the species and we encourage the development 
of similar efforts elsewhere within the range of the frog. However, a 
conservation agreement is unlikely to preclude the need to list this 
particular species for several reasons. Conservation agreements are 
most effective when there is a good understanding of the relationship 
between habitat management and maintenance of the species, and of the 
specific management needed to conserve it. As discussed in the 
``Background'' section, the Chiricahua leopard frog is declining, but 
the causes of the declines are not always clear. Finding solutions to 
two of the primary identified causes of decline, disease and predation 
by introduced organisms, will not be easy, and will likely involve 
considerable research. Implementing solutions will likely require 
considerable corrective or restorative actions. However, at this time 
we do not know how to address these serious threats on a landscape 
scale. If other factors, such as climate change, UV-B radiation, acid 
rain, or airborne contaminants from copper smelters in Mexico, are 
contributing to the decline of the species, these are also threats for 
which we have no easy solution, and which could not be addressed 
adequately in a conservation agreement. Furthermore, funding is not 
available to research, develop, and coordinate comprehensive solutions 
to problems facing this species, let alone implement them throughout 
the species' extensive range. The primary goal of a conservation 
agreement, whether it be a candidate conservation agreement with 
assurances for private or State landowners, or conservation agreements 
with Federal agencies, should be to reduce threats to a species to a 
point where listing is not needed. That goal is not achievable at this 
time. To conclude, a conservation agreement in lieu of listing is not 
appropriate for the Chiricahua leopard frog for the following reasons: 
(1) Our knowledge of why populations have declined or disappeared is 
incomplete, (2) we do not know how to alleviate some of the major 
identified threats, and (3) only limited resources are available to 
develop or implement needed management. We commit to continue our 
efforts to work with landowners and encourage involvement in 
conservation efforts for the frog.
    Issue 2: The special rule should be clarified and expanded. One 
commenter suggested that the special rule be expanded to include an 
exemption from section 9 of the Act for management and operation of, 
and sport fishery and angling in, all artificial and managed water 
bodies on all State and Federal lands. Another commenter requested that 
the special rule be extended to ``acequias,'' which is a name used for 
historical irrigation headwaters and ditches in New Mexico. Other 
commenters asked that we extend the rule to livestock tanks on State 
and Federal lands, as well as private and Tribal lands.
    Response: Extension of the rule to sport fisheries management and 
angling in waters occupied or potentially occupied by the Chiricahua 
leopard frog is also not appropriate. Special rules may be issued by 
the Secretary of the Interior pursuant to section 4(d) of the Act when 
such regulation is deemed ``necessary and advisable to provide for the 
conservation of the species.'' Predation by nonnative fishes, some of 
them sport fish, is a potential threat to the Chiricahua leopard frog. 
Extension of the special rule to sport fisheries management and angling 
would thus not be consistent with the conservation needs of the 
Chiricahua leopard frog and with section 4(d) of the Act. Extension of 
the special rule to acequias is not necessary because the only known 
current or historical occurrence of a Chiricahua leopard frog in or 
near an acequia is at a spring in the headwaters of an acequia located 
on Bureau of Land Management lands in Sierra County, NM. Any work at 
this site must be approved by the Bureau of Land Management, and 
therefore is a Federal action that would be evaluated in consultation 
pursuant to section 7 of the Act. As a result, coverage for acequias 
under the special rule would be duplicative from a regulatory 
    We published a Federal Register notice (65 FR 58032) on September 
27, 2000, clarifying that the proposed special rule extends to 
operation and maintenance of livestock tanks on private, State, and 
Tribal lands. Extension to tanks or other bodies of water on Federal 
lands is unnecessary and would be duplicative from a regulatory 
perspective because the section 7 consultation process in the Act is 
designed to efficiently evaluate effects to listed species for projects 
such as stock tanks, and authorize take, if appropriate, via an 
incidental take statement in a biological opinion. Since the Chiricahua 
leopard frog was proposed for listing, we have conducted a number of 
section 7 conferences with the Forest Service in regard to grazing in 
Chiricahua leopard frog habitat. None of these conferences have 
concluded that grazing would jeopardize the continued existence of the 
Chiricahua leopard frog. Where grazing would affect occupied habitat we 
have in some cases anticipated that take of Chiricahua leopard frogs 
would occur, and included measures to minimize that take. These 
measures have included, for instance, guidelines for stock tank 
maintenance, guidelines for cleaning or drying equipment and gear used 
at one tank before using it at another tank as a means of preventing 
disease transmission, and preconstruction

[[Page 40796]]

surveys for frogs in areas to be affected by range improvement 
projects. In no case have we required changes in stocking rates, use of 
pastures, or utilization rates, or made other major modifications to 
livestock operations during the section 7 process.
    Issue 3: In the proposed rule we solicited comment on the 
desirability of issuing a special rule that would exempt activities 
associated with conservation plans that promote recovery from the 
section 9 take prohibitions, so long as the plans are approved by us 
and the appropriate State game and fish agency. Two commenters believed 
that extending the special rule to these circumstances would be 
beneficial and would likely promote recovery efforts.
    Response: We did not expand the special rule to provide coverage 
for conservation plans. A multi-party conservation agreement exists for 
this species that promotes recovery and was approved by us and AGFD; 
thus, it could serve as a model conservation plan element of a special 
rule. We want to encourage to the fullest extent possible cooperative 
conservation planning and implementation such as the efforts described 
above. However, we believe we can provide technical assistance, all 
necessary permits, and in many cases, limited funding to support these 
activities in the absence of a special rule. For example, we are 
providing funding through AGFD for development of a safe harbor 
agreement to address conservation planning by the Malpai Borderlands 
Group in southeastern Arizona and southwestern New Mexico. In summary, 
coverage of conservation planning under the special rule is not needed 
to allow current efforts to proceed and to promote and permit future 
    Issue 4: One commenter noted that the taxonomy of the Ramsey Canyon 
leopard frog is in question, and it could be subsumed into Rana 
    Response: If a peer-reviewed paper is published in a scientific 
journal that subsumes that species into Rana chiricahuensis, we will 
promptly work with our partners in that conservation agreement to put 
in place safe harbor agreements, habitat conservation plans, and other 
regulatory tools as needed to maintain the successful continuity of the 
program and ensure our partners do not face legal vulnerability as a 
result of their efforts to conserve this frog.
    Issue 5: Information is inadequate to support listing the 
Chiricahua leopard frog. Several commenters believed that the status 
information on the Chiricahua leopard frog is inadequate to support 
listing the species as threatened. Commenters pointed to numerous 
places in the proposed rule where we state that specific factors may be 
a threat, but few if any supportive data exist. Several commenters 
believed surveys were inadequate to quantify whether declines have 
occurred. They believed the frog could occur at many unsurveyed sites, 
particularly on private lands, and thus not be in danger of extinction. 
Commenters noted that over 12,000 stock tanks are located within 
watersheds occupied by the frog in Arizona, and over 10,000 in New 
Mexico, but only several dozen have been surveyed. One commenter 
questioned the qualifications of researchers cited, and others stated 
the listing should be based on peer-reviewed science. One commenter 
thought systematic or intensive surveys must be conducted in Mexico 
prior to listing. Another asked if studies had been completed to 
determine whether observed declines in Chiricahua leopard frog 
populations are natural fluctuations or long-term trends.
    Response: Chiricahua leopard frogs are difficult to identify, thus 
some survey data may be in error. The data standard upon which a 
listing decision must be based is stated at section 4(b)(1)(A) of the 
Act: Listings shall be made ``solely on the basis of the best 
scientific and commercial data available.'' In evaluating the status of 
the Chiricahua leopard in the proposed rule, the preferable data to use 
is found in peer-reviewed scientific journals, followed by other peer-
reviewed published or unpublished reports, non peer-reviewed reports by 
experts on the species, other reports available to us, and personal 
communications. For the development of this rule, the relied-upon 
information consisted mostly of peer-reviewed reports, most of which 
are unpublished. In some cases the best information available was 
personal communications with experts on the species. Relatively few 
peer-reviewed scientific journal articles have been published 
specifically about the status of the Chiricahua leopard frog.
    Although few peer-reviewed journal articles are available, there is 
a wealth of information about declines and, to a lesser extent, causes 
of decline of the Chiricahua leopard frog in the United States. 
Historical distribution was well-explored, particularly in the 1960s 
and 1970s, when researchers were sorting out the taxonomy of 
southwestern leopard frogs (Pace 1974, Platz and Platz 1973, Mecham 
1968). This intensive work occurred in the context of nearly 100 years 
of collections in Arizona and New Mexico, resulting in leopard frogs 
being well-represented in museum collections (Rosen et al. 1996b, 
Fritts et al. 1984). Fritts et al. (1984) list 61 sites for Chiricahua 
leopard frog in New Mexico. Sredl et al. (1997) list 147 historic sites 
for Arizona.
    Declines in southwestern leopard frogs and other ranid frogs were 
first noted in the 1970s (Hale and May 1983), and in the early 1980s an 
effort was initiated to document the decline and identify causes 
(Clarkson and Rorabaugh 1989, Rosen and Schwalbe 1988, Clarkson et al. 
1986, Fritts et al. 1984). In 1990, AGFD hired a leopard frog projects 
coordinator, and since that time, the AGFD has devoted a full-time team 
of herpetologists to track the status and implement conservation of 
Arizona's ranid frogs. Status work accomplished from 1990 to 1997 by 
the AGFD in Arizona is summarized by Sredl et al. (1997), and included 
intensive frog inventories at 75 percent of historical Chiricahua 
leopard frog sites as well as many other wetland sites in Arizona. This 
work occurred at the same time others were searching for leopard frogs 
at new and historical Chiricahua leopard frog sites in Arizona (e.g. 
Rosen et al. 1996a&b, 1994, Snyder et al. 1996, Fernandez and Rosen 
1996, Fernandez and Bagnara 1995, Zweifel 1995, Hale 1992, Clarkson and 
Rorabaugh 1991, Wood 1991).
    In New Mexico, Scott (1992) thoroughly surveyed potential 
Chiricahua leopard frog habitats in southwestern New Mexico. Jennings 
(1995) surveyed 50 (82 percent) of the 61 historic sites identified by 
Fritts et al. (1984) as well as 22 other wetland sites. Additional 
surveys have been conducted since Jennings' work by New Mexico 
Department of Game and Fish, the Gila National Forest, Barney 
Tomberlin, Bureau of Land Management, the Animas Foundation, Andy 
Holycross, personnel at the Ladder Ranch, and others, as summarized in 
Table 4 of Painter (2000). Since the proposed rule was published, 
Forest Service biologists have become more aware of the species and 
have been looking for leopard frogs throughout the forests of Arizona 
and New Mexico. The surveys upon which this rule is based were 
conducted by qualified biologists, and the majority were by experts on 
the species.
    In summary, more than 75 percent of the historical sites have been 
resurveyed for Chiricahua leopard frogs. Frogs were not found at more 
than 75 percent of those resurveyed sites. We acknowledge that the 
species probably occurs at some unsurveyed sites. However, the results 
of the historical site surveys present a convincing argument that the 
species is declining across its range in Arizona and New Mexico. 
Furthermore, every

[[Page 40797]]

recent report that discusses the status of the species concludes it is 
in decline. As discussed in the ``Background'' section, the frog's 
apparent disappearance from significant portions of its range argues 
that the declines are not the result of normal population fluctuations, 
but represent real, regional declines and loss of populations and 
metapopulations. Commenter's contention that only a small percentage of 
stock tanks in Arizona and New Mexico have been surveyed for Chiricahua 
leopard frogs is inaccurate. Many of the historical and new sites that 
have been surveyed for frogs are stock tanks. Also, only a small 
percentage of stock tanks have any potential to support populations of 
this frog. These are stock tanks within the range of the frog, from 
1,000 to 2,710 m (3,280-8,890 ft) in elevation, and which hold water 
most of the time. Surveys for frogs have focused on this category of 
stock tank. The potential for finding many new populations on private 
lands is small, because most of the habitat and potential habitat of 
the Chiricahua leopard frog occurs on National Forests. Two of the most 
important private parcels within the range of the frog (Gray Ranch and 
Ladder Ranch in New Mexico) have been recently surveyed for frogs.
    Commenters accurately identified a gap in our knowledge of the 
species' status in Mexico. As discussed in the ``Background'' section, 
limited surveys have been conducted in Mexico, and unresolved taxonomic 
questions and possible misidentification of frogs are apparent 
problems. However, declines or the causes of decline do not stop at the 
international boundary as shown by the fact that the Mexican Government 
considers the Chiricahua leopard frog a threatened species (Secretario 
de Desarrollo Social 1994). Our designation of the frog as a threatened 
species is consistent with the findings of Mexican biologists and the 
Mexican Government.
    Commenters are also correct in stating that research into the 
causes of population loss and decline are incomplete, and compelling 
evidence linking declines with causal factors is often missing or 
speculative. However, as discussed in the ``Background'' section and 
the ``Summary of Factors Affecting the Species'' section, abundant data 
support the contention that populations of Chiricahua leopard frogs are 
eliminated by a variety of introduced, nonnative vertebrate and 
invertebrate predators, and that these predators are widespread in 
Arizona and New Mexico. However, Chiricahua leopard frogs have 
disappeared from many locations where nonnative predators are absent 
and no other causes of extirpation are apparent. Chytridiomycosis has 
played a part in these mysterious declines, but a myriad of other 
causal factors may be involved as well. As a result, discussions of the 
threats to the species herein are appropriately and often punctuated by 
uncertainty qualifiers such as ``may'' and ``could.'' The fact that we 
cannot always identify the causes of decline does not negate a large 
body of evidence that the species is declining and threatened 
throughout a significant portion of its range, and thus warrants 
    Issue 6: Peer reviews and regulatory compliance documents should be 
made available for public review and comment prior to making a listing 
decision. Several commenters stated that peer reviews and regulatory 
compliance documents should be made available to the public for review 
and comment before a final decision regarding listing.
    Response: In accordance with policy promulgated July 1, 1994 (59 FR 
34270), we solicited the expert opinions of four appropriate and 
independent specialists regarding this proposed rule. The purpose of 
such review is to ensure listing decisions are based on scientifically 
sound data, assumptions, and analyses, including input of appropriate 
experts and specialists. Our four peer reviewers submitted comments 
during the public comment periods. As stated in the proposed rule, 
these and other comments received were and still are available for 
public review. Although, if individual respondents request that we 
withhold their home address or identity, we honor such requests to the 
extent allowable under the law. Public review and comment was and is 
possible, but any such comments would need to have been submitted 
during a comment period to be included in the administrative record and 
considered in our listing decision. We frequently reopen comment 
periods if needed to include substantive comments in the administrative 
record; however, we did not receive any comments after the close of the 
second and last comment periods; thus there was no need to reopen the 
comment period.
    In the issuance of rules under the Act we are required to ensure 
compliance with applicable regulations. Required determinations under 
these regulations were presented in the proposed rule for the Paperwork 
Reduction Act of 1995 and Civil Justice Reform Executive Order. Our 
determinations under these regulations were available for comment; 
however, we received no comments pertaining to them.
    We also indicated in the proposed rule that we would publish an 
analysis of how the special rule complies with various laws and 
Executive Orders. However, these regulations and Executive Orders, 
which include the Small Business Regulatory Enforcement Fairness Act, 
the Regulatory Flexibility Act, Executive Order 12866 (Regulatory 
Planning and Review),Unfunded Mandates Reform Act, Executive Order 
12630 (Takings Assessment), Executive Order 13132 (Federalism), and 
Executive Order 13211 (dealing with regulations that significantly 
affect energy supply, distribution, and use), address economic and 
other issues not related to science. Section 4(a) of the Act requires 
that listing decisions be made solely on the best scientific and 
commercial (i.e., trade) data available. Therefore Section 4(a) of the 
Act supersedes the Executive Orders and statutes listed above which 
would otherwise require the Service to consider economic and other 
aspects of the special rule as an integral part of the listing 
decision. As a result, Service policy, as outlined in the Endangered 
Species Listing Handbook, 1994, indicates that special rules being 
published contemporaneously with a listing do not include an analysis 
of these various laws and Executive Orders. Thus, the Service will not 
be publishing an analysis of how this special rule complies with these 
various laws and Executive Orders.
    Issue 7: One commenter asked how the rule will affect the quality 
of the human environment, particularly how industry and recreation will 
be affected.
    Response: This is a question typically addressed in National 
Environmental Policy Act (NEPA) documents. As stated herein and in the 
proposed rule, NEPA documents are not required in connection with 
regulations such as this adopted pursuant to section 4(a) of the Act.
    Issue 8: Listing, even with adoption of the special rule, will 
unnecessarily burden or threaten the livelihood of ranchers and cattle 
operations. Several commenters were concerned that regulations put in 
place by listing the Chiricahua leopard frog would add additional 
burden to an already over-regulated livestock industry. One commenter 
believed listing the frog would result in elimination of grazing on 
Federal lands. Another commenter was concerned that listing could 
result in different management of stock tanks on private versus Federal 
lands within the same ranch, causing management and resource conflicts. 
One commenter

[[Page 40798]]

was concerned that the rights of Federal livestock permittees are not 
guaranteed in the section 7 process.
    Response: We recognize the importance of stock tanks as habitat for 
the Chiricahua leopard frog. Stock tanks are small earthen ponds 
created when a rancher builds up a barrier of soil to capture water 
from a small drainage area. These tanks would not have been built nor 
maintained without active grazing programs and viable ranches. Although 
livestock programs help create and maintain habitat, as discussed in 
the ``Summary of Factors Affecting the Species'' section, some adverse 
effects can occur from grazing programs, such as watershed degradation, 
riparian habitat loss, trampling of frogs, eggs, and tadpoles, and 
spread of disease. When a Federal action, such as permitting livestock 
grazing on Federal lands, may affect a listed species, consultation 
between us and the action agency is required pursuant to section 7 of 
the Act. The conclusion of consultation may include mandatory changes 
in livestock programs in the form of measures to minimize take of a 
listed animal or to avoid jeopardizing the continued existence of a 
listed species. Changes in a proposed action resulting from 
consultations are almost always minor. Since the Chiricahua leopard 
frog was proposed for listing, we have conducted a number of section 7 
conferences with the Forest Service in regard to grazing in Chiricahua 
leopard frog habitat. None of these conferences have concluded that 
grazing would jeopardize the continued existence of the Chiricahua 
leopard frog. Where grazing would affect occupied habitat we have in 
some cases anticipated that take of Chiricahua leopard frogs would 
occur, and included measures to minimize that take. These measures have 
included, for instance, guidelines for stock tank maintenance, 
guidelines for cleaning or drying equipment and gear used at one tank 
before using it at another tank as a means of preventing disease 
transmission, and preconstruction surveys for frogs in areas to be 
affected by range improvement projects. In no case have we required 
changes in stocking rates, use of pastures, or utilization rates, or 
made other major modifications to livestock operations during the 
section 7 process.
    We cannot predetermine the outcome of section 7 consultations, but 
because the Chiricahua leopard frog coexists with grazing throughout 
its range, we believe the likelihood of a biological opinion with a 
jeopardy conclusion is low. In those cases in which we anticipate that 
take of Chiricahua leopard frogs would occur, any reasonable and 
prudent measures, along with terms and conditions, identified to 
minimize take cannot alter the basic design, location, scope, duration, 
or timing of an action and may involve only minor changes (50 CFR 
402.14(i)(2)). A permittee can ensure that his or her rights and 
concerns in the section 7 consultation process are addressed to the 
maximum extent possible under the law by applying for applicant status 
with the action agency pursuant to 50 CFR 402.14. Applicant status 
guarantees permittees certain rights in the section 7 process, such as 
submitting information, having veto power over requests for extensions 
of the consultation period beyond 60 days, and reviewing and commenting 
on draft biological opinions.
    In regard to grazing activities on non-Federal lands, the special 
rule provides an exemption from the section 9 take prohibitions for 
operation and maintenance of stock tanks. These are the ranching 
activities on non-Federal lands most likely to take a Chiricahua 
leopard frog. By providing this exemption, we acknowledge the 
importance of these tanks to the conservation of the species, and that 
populations of frogs can coexist with use and maintenance of the tanks. 
If other non-Federal ranching activities may result in take of 
Chiricahua leopard frogs, these activities may be permitted by the 
Service by issuance of an incidental take permit to the landowner 
pursuant to section 10(a)(1)(B) of the Act.
    Issue 9: One commenter believed that our assertion in the proposed 
rule that tadpoles may be trampled by cattle is overly speculative.
    Response: There are no observations of trampling that we are aware 
of with regard to grazing of cattle and Chiricahua leopard frogs. 
However, in southeastern Idaho, hundreds of metamorphosing western 
toads (Bufo boreas) were trampled when a large herd of sheep were 
driven through a pond that had dried 4 days earlier. The majority of 
the young toads at the pond were left dead or dying; however, at least 
some adult toads escaped injury by hiding under logs or in rodent 
burrows (Bartelt 1998). Nevertheless, we believe this observation from 
Idaho supports our contention that certain life stages of the 
Chiricahua leopard frog are probably trampled by cattle at livestock 
tanks and in other habitats where cattle have access to aquatic 
habitats used by this frog. Discussions in the ``Summary of Factors 
Affecting the Species'' section describe other ways that direct 
mortality of frogs may occur from livestock grazing. Despite these 
potentially adverse effects from livestock grazing, we recognize the 
importance of stock tanks as providing additional habitat for the 
Chiricahua leopard frog and find that an overall conservation benefit 
occurs from the maintenance of these stock tanks. We do not believe 
that cattle trampling alone would lead to the extirpation of a 
population of Chiricahua leopard frogs.
    Issue 9: We did not follow regulations pertaining to required 
notifications and public participation. One commenter stated that we 
did not provide notice of the proposed rule to State agencies and 
countries, or publish a summary in each area in which the frog occurs, 
in accordance with 16 U.S.C. 1533(b)(5). Another commenter believed we 
did not provide for adequate public participation in the rulemaking 
process, and criticized us for only providing 12 to 15 days notice of 
the public hearings. Commenters contend that hearings were held at 
night in driving rain storms, which was inconvenient, and notices of 
extension of the comment period included 2 deadline dates, which was 
    Response: Procedures for public participation and review in regard 
to proposed rules are defined at section 4(b)(5) of the Act, 50 CFR 
424, the Administrative Procedure Act (5 U.S.C. 551 et seq.), and other 
applicable law. In response to commenters' specific comments, notice of 
publication of the proposed rule, which included a web address where 
the rule could be viewed or downloaded, was mailed on June 20, 2000, 
from our Phoenix Office to 149 agencies, organizations, and 
individuals, including 3 Arizona State agencies and 3 New Mexico State 
agencies, and a Federal and State agency in Mexico. Summaries of the 
proposed rule were published in the form of legal notices in 9 
newspapers in Arizona and New Mexico, as described in the beginning of 
this section. We also provided news releases to newspapers and news 
services, and a number of newspaper articles were published describing 
the frog, its status, and the proposed rule. Similar notifications were 
provided for the reopening of the comment period.
    Weather may have been a factor in the low turnout at the public 
hearing in Bisbee, AZ. As the commenter noted, heavy rain may have kept 
some people from coming, especially if they had to drive more than a 
few miles. In contrast, the weather in Silver City, NM, was good on the 
day of the hearing. We held the hearings in the evening (7:00-9:00 
p.m.) because most people work or have other commitments during the 
day. The

[[Page 40799]]

September 27, 2000, Federal Register included two notices of the 
reopening of the comment period, announcement of the public hearings, 
and clarification of the special rule. The first stated the comment 
period was reopened until November 13, 2000; the second stated comments 
were due on October 27, 2000. We accepted comments until November 13, 
and we did not receive any comments after the close of the comment 
period. We made it clear at the public hearings and in the legal 
notices and news releases announcing the hearings that the comment 
period was open until November 13. We agree that this may have been 
confusing to some people, but if someone had only seen the Federal 
Register notice that comments were due October 27, and submitted 
comments in accordance with that incorrect notice, their comments were 
still accepted and entered into the administrative record.
    Public notices were published in Bisbee, AZ, and Silver City, NM, 
12 days prior to the public hearings in those cities. A Federal 
Register notice announcing the reopening of the comment period, the 
public hearing, and a clarification of the special rule was published 
13 days prior to the hearing in Silver City and 14 days prior to the 
hearing in Bisbee. We believe on the whole the public had ample notice 
of the hearings and ample opportunity to comment on the rule, both 
orally at public hearings and in written comments. The Act only 
requires that one public hearing be held, if requested (section 
4(b)(5)(E)). We held two hearings. Notification was provided both in 
the Federal Register and in newspaper notices in seven newspapers. We 
also sent a news release to 45 news outlets servicing communities in 
the historical range of the Chiricahua leopard frog, and we published 
articles on October 5, 2000, in Bisbee, AZ, and October 2, 2000, in 
Silver City, NM, announcing the hearings and discussing the proposed 
rule. On September 27, 2000, we mailed an announcement of the hearings, 
reopening of the comment period, and clarification of the proposed 
special rule to 163 individuals, organizations, and government agencies 
within the historical range of the frog. Furthermore, our regulations 
only requires a 60-day comment period on proposed rules (50 CFR 424.16 
(c)(2)). The comment period on the Chiricahua leopard frog proposed 
rule was initially open for 120 days, and then reopened for 45 days, 
for a total of 165 days. In conclusion, we maintain that the public had 
ample opportunity to comment on the proposed rule, and ample 
notification that comments were being solicited.
    Issue 10: Critical habitat should be designated. Commenters stated 
that, without critical habitat, section 7 will only protect currently 
occupied habitat, which is insufficient for medium- or long-term 
survival of the species. One of our peer reviewers suggested we 
designate only the unoccupied major recovery areas as critical habitat. 
The reviewer argues that if only major, unoccupied recovery areas are 
designated as critical habitat, these areas and their recovery 
potential would be protected under the section 7 consultation 
regulations, but the location of occupied sites would not be revealed. 
The reviewer recommends several valley bottom cienega complexes and 
montane canyons in southeastern Arizona for designation as critical 
    Response: Our rationale for determining that designation of 
critical habitat is not prudent is grounded in the concern that 
publication of maps and locations of Chiricahua leopard frogs will 
increase threats of collection, vandalism, and disease transmission for 
this species (see the ``Critical Habitat'' section of this rule). These 
threats would only be a concern where the frog actually occurs.
    The Chiricahua leopard frog is largely absent from rivers, springs, 
cienegas, and other valley wetlands, as well as many of the major 
montane canyons of southeastern Arizona. Historically, these areas were 
probably very important and may have contained the largest, most stable 
populations of the Chiricahua leopard frog in southeastern Arizona. 
Most are now dominated by nonnative predators that have apparently 
excluded the Chiricahua leopard frog (Rosen et al. in press, 1996a, 
1994). This scenario has been repeated elsewhere within the range of 
the Chiricahua leopard frog.
    Critical habitat is habitat that is essential to the conservation 
of the species (section 3 of the Act; see ``Critical Habitat'' section 
herein). Because of the presence of a variety of nonnative predators, 
most of the sites suggested by the reviewer for designation of critical 
habitat do not currently contain features that are essential to the 
conservation of the Chiricahua leopard frog. Whether these sites are 
capable of being restored is unknown. The presence of a variety of 
nonnative predators with very different life histories make restoration 
especially challenging. For example, although bullfrogs can be 
eliminated from small, simple aquatic systems (Schwalbe and Rosen 2001, 
Schwalbe et al. 2000), we currently do not know how to remove them from 
large, complex aquatic systems. We also do not know how to control 
crayfish, even on a relatively small scale, and both the bullfrog and 
crayfish can live in, at least for a while, and disperse through 
terrestrial habitats. Our ability to control nonnative fish is better, 
but accomplishing fish control in a large system would be challenging, 
at best. A further problem would be preventing the reintroduction of 
these species, if we were successful at initially removing them. As a 
result, we do not know if the areas described by the reviewer can ever 
support Chiricahua leopard frogs in the future, and thus whether they 
are essential for the conservation of the species is questionable. If 
we were successful at eliminating nonnative predators and Chiricahua 
leopard frogs recolonized or were reestablished in these areas, then 
our concern about vandalism, collection, and disease transmission would 
extend to these areas, as well as the sites occupied today, and our 
rationale for not designating critical habitat in currently occupied 
sites would extend to these newly-occupied habitats.
    In the absence of critical habitat designation, many of the areas 
referred to by the peer reviewer will be protected as a result of the 
presence of other critical habitat designations and listed species that 
require healthy riparian systems, special management that is typically 
extended to riparian and aquatic sites on Forest Service and Bureau of 
Land Management lands, and protection afforded by section 404 of the 
Clean Water Act and other regulations. In addition, if a site has 
potential to support Chiricahua leopard frogs, and the species may be 
present, a Federal action agency should still consult with us pursuant 
to section 7 of the Act if the actions of that agency may affect the 
survival or recovery of the frog via effects to its habitat.
    In time, our ability to control nonnative predators should improve, 
and our understanding of the conservation needs of the Chiricahua 
leopard frog will be honed. The need for critical habitat will be 
revisited during preparation of a recovery plan for the species, and if 
new information becomes available suggesting designation of critical 
habitat is prudent, we may revisit a critical habitat designation at 
that time.

Peer Review

    In accordance with our July 1, 1994 (59 FR 34270), Interagency 
Cooperative Policy on Peer Review, we requested the expert opinions of 
four independent specialists regarding pertinent scientific

[[Page 40800]]

or commercial data and assumptions relating to supportive biological 
and ecological information in the proposed rule. The purpose of such 
review is to ensure that the listing decision is based on 
scientifically sound data, assumptions, and analyses, including input 
of appropriate experts and specialists.
    We requested four individuals who possess expertise on Chiricahua 
leopard frog natural history and ecology to review the proposed rule 
and provide any relevant scientific data relating to taxonomy, 
distribution, or to the supporting biological data used in our analyses 
of the listing factors. We received peer reviews from all entities 
(including AGFD). All agreed that the Chiricahua leopard frog is in 
decline over all or significant portions of its range and faces 
considerable threats where it still exists. AGFD favored conservation 
agreements over Federal listing as a means to recover the species; the 
other reviewers believed the frog should be listed as a threatened 
species. We have carefully considered and incorporated peer reviewers' 
comments into the final rule, as appropriate. We briefly summarize 
their observations below.
    One of the peer reviewers recommended designation of critical 
habitat (that comment is addressed above); the other reviewers did not 
address critical habitat. One of the reviewers did not object to the 
special rule, two others supported it, and the fourth recommended 
expanding its scope (comment addressed above). Two of the peer 
reviewers provided documentation of recent die-offs or extirpations in 
New Mexico at three sites near Hurley and a fourth site on the Mimbres 
River. Chytridiomycosis was confirmed at one of the sites, and the 
pattern of decline at the other three suggests chytridiomycosis may be 
involved there as well. One of the reviewers emphasized that 
chytridiomycosis is emerging as a viable explanation for observed 
patterns of Chiricahua leopard frog declines. Small populations that 
are isolated, such as in remote stock tanks, may be less susceptible to 
contracting chytridiomycosis than large populations of frogs or 
individuals in metapopulations, in which the likelihood of disease 
transmission is much greater. This perspective tempers current thought 
that metapopulations are crucial to survival of the frog, but may help 
explain why Chiricahua leopard frog populations are often small and 
isolated, and why metapopulations are so rare. The reviewer notes 
further that the growth of chytrids is retarded by warm waters, which 
may help explain why Chiricahua leopard frogs have persisted at some 
geothermal springs in New Mexico. One of the reviewers provided the 
following new survey data for New Mexico: during May to August 2000, 
the frog was found at only 8 of 34 sites at which the species had been 
found from 1994 to 1999. This same reviewer described two proposed 
mining projects in New Mexico that may adversely affect Chiricahua 
leopard frogs and their habitats.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we have determined that the Chiricahua leopard frog should 
be classified as a threatened species. We followed the procedures found 
at section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations 
(50 CFR part 424) issued to implement the listing provisions of the 
Act. We may determine a species to be endangered or threatened due to 
one or more of the five factors described in section 4(a)(1). These 
factors and their application to the Chiricahua leopard frog (Rana 
chiricahuensis Platz and Mecham) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. Riparian and wetland communities 
throughout the range of the Chiricahua leopard frog are much altered 
and reduced in size compared to early- to mid-19th century conditions 
(Arizona Department of Water Resources 1994; Brown 1985; Hendrickson 
and Minckley 1984; Minckley and Brown 1982). Dams, diversions, 
groundwater pumping, introduction of nonnative organisms, woodcutting, 
mining, contaminants, urban and agricultural development, road 
construction, overgrazing, and altered fire regimes have all 
contributed to reduced quality and quantity of riparian and wetland 
habitat (Belsky and Blumenthal 1997; Wang et al. 1997; DeBano and Neary 
1996; Bahre 1995; Brown 1985; Hadley and Sheridan 1995; Hale et al. 
1995, Ohmart 1995; Stebbins and Cohen 1995; Hendrickson and Minckley 
1984; Arizona State University 1979; Gifford and Hawkins 1978).
    Many of these changes began before ranid frogs were widely 
collected or studied in Arizona and New Mexico. The Chiricahua leopard 
frog may have been much more widely distributed in pre-settlement times 
than is indicated by historical collections. Extant sites are generally 
located in stream and river drainage headwaters, springs, and stock 
tanks. However, historical records exist for the Verde, San Pedro, 
Santa Cruz, and Gila Rivers, and the species is extant in the San 
Francisco and Mimbres Rivers in New Mexico and on the Blue River in 
Arizona. This suggests that it may have occurred in other major 
drainages such as the mainstems of the Salt, White, Black, and Little 
Colorado Rivers. The species is also now largely absent from valley 
bottom cienega complexes in southeastern Arizona, which likely 
contained large populations historically (Rosen et al. in press). 
Habitat degradation, diversions, loss or alteration of stream flows, 
groundwater pumping, introduction of nonnative organisms, and other 
changes are often most apparent on these larger drainages and cienega 
complexes (Sredl et al. 1997, State of Arizona 1990, Hendrickson and 
Minckley 1984).
    Although the cumulative effect of such changes to its habitat is 
unknown, the extirpation of the Chiricahua leopard frog may have 
occurred in some major drainages and cienegas prior to its occurrence 
being documented. Large drainages connect many of the extant and 
historical populations and may have served as important corridors for 
exchange of genetic material. Riverine and cienega populations probably 
served as a source of frogs for recolonization if extirpations occurred 
within satellite populations (Sredl et al. 1997, Rosen et al. 1996a).
    Beavers (Castor canadensis) likely promoted the creation of 
Chiricahua leopard frog habitat. The activities of beavers tend to 
inhibit erosion and downcutting of stream channels (Parker et al. 1985) 
and ponded water behind beaver dams is favored habitat for ranid frogs. 
However, beavers were extirpated from some areas by the late 1800s and 
are still not abundant or are extirpated from other areas where they 
were once common (Hoffmeister 1986). For example, in Arizona beavers 
are extirpated from the Santa Cruz River and, before recent 
reestablishments, were extirpated from the upper San Pedro River. Loss 
of this large mammal and the dams it constructed likely resulted in 
loss of backwaters and pools favored by the Chiricahua leopard frog.
    These changes occurred before leopard frogs were widely collected; 
thus, hypotheses concerning correlations between extirpations of beaver 
and Chiricahua leopard frogs cannot be tested by comparing historical 
versus extant frog populations. Where beavers occur within the range of 
the Chiricahua leopard frog today, beaver ponds are often inhabited by 
nonnative predators, such as introduced fishes and bullfrogs, that prey 
upon and preclude

[[Page 40801]]

viable populations of Chiricahua leopard frogs. Because nonnative 
species often thrive in beaver ponds, the presence of beavers could 
actually hinder recovery of the Chiricahua leopard frog in some 
    As discussed above in Issue 8 of the comments section, small 
earthen ponds commonly known as stock tanks, constructed as water 
sources for livestock, are important habitats for the Chiricahua 
leopard frog, particularly in Arizona (Sredl and Jennings in press, 
Sredl and Saylor 1998). In some areas, stock tanks replaced natural 
springs and cienegas or were developed at spring headwaters or cienegas 
and now provide the only suitable habitat available to the Chiricahua 
leopard frog. For instance, the only known sites of the Chiricahua 
leopard frog in the San Rafael and San Bernardino valleys, Buckskin 
Hills, and in the Patagonia Mountains of Arizona are stock tanks. For 
example, data suggest Arizona populations of this species have fared 
better in stock tanks than in natural habitats. In Arizona, Sredl and 
Saylor (1998) found a significantly higher proportion (63 percent) of 
known extant Chiricahua leopard frog populations in stock tanks as 
compared to riverine habitats (35 percent), suggesting Arizona 
populations of this species have fared better in stock tanks than in 
natural habitats. However, this generalization does not hold for New 
Mexico, where in recent years many stock tank populations were 
extirpated, apparently by disease (Painter 2000). Sredl and Saylor 
(1998) found that stock tanks in Arizona are occupied less frequently 
by nonnative predators (with the exception of bullfrogs) than natural 
sites. For all these reasons, there is a high probability that the 
Chiricahua leopard frog would be extirpated from many more areas if 
ranchers had not built and maintained stock tanks for livestock 
    Although stock tanks provide refugia for frog populations and are 
important for this species in many areas, only small populations are 
supported by such tanks and these habitats are very dynamic. Tanks 
often dry out during drought, and flooding may destroy downstream 
impoundments or cause siltation, either of which may result in loss of 
aquatic communities and extirpation of frog populations. Periodic 
maintenance to remove silt from tanks may also cause a temporary loss 
of habitat and mortality of frogs. Populations of nonnative introduced 
predaceous fishes, bullfrogs, and other species, although less 
prevalent than in natural habitats, sometimes become established in 
stock tanks and are implicated in the decline of the Chiricahua leopard 
frog (Rosen et al. 1996a, 1994). Stock tanks may facilitate spread of 
infectious disease and nonnative organisms by providing habitats for 
frogs in arid landscapes that otherwise may have served as barriers to 
the spread of such organisms. In New Mexico, stock tank populations in 
some areas were apparently eliminated by disease (Painter 2000, 
Declining Amphibian Populations Task Force 1993). Sredl and Saylor 
(1998) caution that stock tank populations are sometimes simply 
mortality sinks with little reproduction or recruitment.
    The effects of livestock grazing on leopard frog populations are 
not well-studied; however the Chiricahua leopard frog coexists with 
grazing activities throughout its range. For instance, a large and 
healthy population of Chiricahua leopard frogs coexists with cattle and 
horses on the Tularosa River, New Mexico (Randy Jennings, Western New 
Mexico University, pers. comm. 1995). A metapopulation of Chiricahua 
leopard frogs exists in stock tanks on allotments in the Buckskin Hills 
of the Coconino National Forest, Arizona. Maintenance of viable 
populations of Chiricahua leopard frogs is thought to be compatible 
with well-managed livestock grazing, and as discussed, stock tanks are 
currently important leopard frog habitats, particularly in Arizona. 
However, adverse effects to the species and its habitat may occur under 
certain circumstances (Sredl and Jennings in press). These effects 
include deterioration of watersheds, erosion and/or siltation of stream 
courses, elimination of undercut banks that provide cover for frogs, 
loss of wetland and riparian vegetation and backwater pools, and spread 
of disease and nonnative predators (Sredl and Jennings in press, U.S. 
Fish and Wildlife Service 2000, Belsky et al. 1999, Jancovich et al. 
1997 Ohmart 1995; Hendrickson and Minckley 1984; Arizona State 
University 1979). Increased watershed erosion caused by grazing can 
accelerate sedimentation of deep pools used by frogs (Gunderson 1968). 
Sediment can alter primary productivity and fill interstitial spaces in 
streambed materials with fine particulates that impede water flow, 
reduce oxygen levels, and restrict waste removal (Chapman 1988). Eggs, 
tadpoles, metamorph frogs, and frogs hibernating at the bottom of pools 
or stock tanks are probably trampled by cattle (US Fish and Wildlife 
Service 2000, Bartelt 1998).
    In June 1994, a die-off of Chiricahua leopard frogs occurred at a 
stock tank in the Chiricahua Mountains, Arizona, that reduced the frog 
population from 60 to 80 adults to fewer than 10 (Sredl et al. 1997). 
Analysis of dead and moribund frogs and water from the tank indicated 
that disease was unlikely to be the cause of the die-off; however, 
levels of hydrogen sulfide were high enough to be toxic to wildlife. 
The authors suspected that high detritus loads (including cattle 
feces), low water levels, high water temperature, and low 
concentrations of dissolved oxygen created a suitable environment for 
sulphur-producing bacteria that produced toxic levels of hydrogen 
sulfide. Chiricahua leopard frogs were not found at this site in 1998.
    Many large impoundments or lakes were created within the range of 
the Chiricahua leopard frog for water storage, recreation, and as a 
source of hydroelectric power. For instance, historical records exist 
for the species from Luna Lake, Nelson Reservoir, Hawley Lake, and 
Rainbow Lake north of the Gila River in Arizona; and Lake Roberts, 
Patterson Lake, and Ben Lilly Lake in New Mexico, but surveys at these 
sites since 1985 located no frogs (Painter 2000, AGFD 1997). Currently, 
large impoundments invariably support populations of predaceous 
nonnative fishes, crayfish, and/or bullfrogs. Predation and possibly 
competition with leopard frogs likely caused or contributed to the 
disappearance of the Chiricahua leopard frog from reservoirs.
    Construction and operation of reservoirs also alter downstream 
flows and can result in dramatic changes in stream hydrology, rates of 
erosion and sedimentation, riparian vegetation, and other components of 
riparian ecosystems (Johnson 1978). The effects of these changes on 
Chiricahua leopard frog populations are unknown. However, downstream 
effects of such impoundments are implicated in the decline of other 
anurans (frogs and toads), including the endangered arroyo toad (Bufo 
californicus) (Service 1993) and the foothill yellow-legged frog (Rana 
boylii) (Lind et al. 1996).
    On the Trinity River in California, the extent of riparian 
vegetation increased with an accompanying decrease in sandbars, of 
which the latter was breeding habitat of the foothill yellow-legged 
frog. Unseasonably high flows from dam releases also resulted in loss 
of entire cohorts or age groups of larval frogs (Lind et al. 1996). 
Similar effects may occur in Chiricahua leopard frog habitats. Water 
temperatures are often colder below dams than in similar unaltered 
systems (Lind et al. 1996), which may retard development of frog eggs 
and larvae (Stebbins and Cohen 1995). Lack of scouring flood flows 
below dams may also create relatively

[[Page 40802]]

stable pools with abundant vegetation that favors establishment of 
bullfrogs (Lind et al. 1996). Dispersal of nonnative fish from 
impoundments to either downstream or upstream reaches may result in 
further adverse effects to frog populations.
    Evidence of historical mining is commonly encountered within the 
range of the Chiricahua leopard frog, but few of these mines are 
currently active and most do not appear to directly affect the wetland 
and riparian areas occupied by the species. Only a few extant or 
historical Chiricahua leopard frog sites are thought to be currently 
directly affected by mining operations. Active mining occurs in 
California Gulch, Pajarito Mountains, AZ (an historical site), but is 
limited to a short reach of the drainage. Mining in the area of Hurley, 
NM, may affect Chiricahua leopard frogs in that area (if populations 
have not been eliminated by disease; R. Jennings, pers. comm. 2000). 
The recently proposed Gentry Iron Mine may be located within 1.6 km 
(1.0 mi) of two extant Chiricahua leopard frog populations on the Tonto 
National Forest, Arizona. The effects of that mine, if built, are 
unknown. In New Mexico, both the proposed expansion of the Santa Rita 
open-pit copper mine near Silver City, and a proposed beryllium mine on 
the south side of Alamosa Creek, may affect Chiricahua leopard frog 
populations in those areas (C. Painter pers. comm. 2000). The resulting 
effects of the proposed mining activities on these populations are 
uncertain at this time, but may include changes in water quality and 
flow rates.
    In the past, spillage from mine leach ponds probably affected some 
Chiricahua leopard frog populations. In June 1969, leach ponds at a 
mine at Clifton, AZ, breached and spilled a heavy, red residue 
(probably iron oxide) into Chase Creek, which flowed for 4 miles to the 
San Francisco River. Rathbun (1969) estimated a nearly 100 percent kill 
of ``leopard'' frogs and tadpoles along the 4 mile reach of Chase 
Creek. Given the location and elevation of the site, the leopard frogs 
affected could have been lowland leopard frogs (Rana yavapaiensis) or 
Chiricahua leopard frogs. Overflow, leakage, and tailings dam failures 
at the copper mine at Cananea, Sonora, occurred several times from 1977 
to 1979 and severely affected many miles of the upper San Pedro River 
in Sonora and Arizona. A spill in 1979 resulted in water that was brick 
red in color with a pH as low as 3.1. Aquatic life in the river was 
killed (U.S. Bureau of Land Management 1998). The last known occurrence 
of the Chiricahua leopard frog in the upper San Pedro River was 1979 
(Service files).
    Although mining activities were more widespread historically and 
may have constituted a greater threat in the past, the mining of sand 
and gravel, iron, gold, copper, beryllium, or other materials remains a 
potential threat to the Chiricahua leopard frog. In addition as noted 
in Factor C of this section, mining also has indirect adverse effects 
to this species.
    Fire frequency and intensity in Southwestern forests are much 
altered from historic conditions (Dahms and Geils 1997). Before 1900, 
surface fires generally occurred at least once per decade in montane 
forests with a pine component. Beginning about 1870 to 1900, these 
frequent ground fires ceased to occur due to intensive livestock 
grazing that removed fine fuels coupled with effective fire suppression 
in the mid to late 20th century that further prevented frequent, 
widespread ground fires (Swetnam and Baisan 1996). Absence of ground 
fires allowed a buildup of woody fuels that precipitated infrequent but 
intense crown fires (Danzer et al. 1997, Swetnam and Baisan 1996). 
Absence of vegetation and forest litter following intense crown fires 
exposed soils to surface and rill (a channel made by a small stream) 
erosion during storms, often causing high peak flows, sedimentation, 
and erosion in downstream drainages (DeBano and Neary 1996). Following 
the 1994 Rattlesnake fire in the Chiricahua Mountains, Arizona, a 
debris flow filled in Rucker Lake and many pools in Rucker Canyon, both 
of which are historical Chiricahua leopard frog sites. Leopard frogs 
(either Chiricahua or Ramsey Canyon leopard frogs) apparently 
disappeared from Miller Canyon in the Huachuca Mountains, Arizona, 
following a 1977 crown fire in the upper canyon and subsequent erosion 
and scouring of the canyon during storm events (Tom Beatty, Miller 
Canyon, pers. comm. 2000). Leopard frogs were historically known from 
many sites in the Huachuca Mountains; however, natural pools and ponds 
are largely absent now and the only breeding leopard frog populations 
occur in man-made tanks and ponds. Bowers and McLaughlin (1994) list 
six riparian plant species they believed might have been eliminated 
from the Huachuca Mountains as a result of floods and debris flow 
following destructive fires.
    Other activities have also affected the habitat of the Chiricahua 
leopard frog. For instance, in an attempt to increase flow, explosives 
were used at Birch Springs in the Animas Mountains, Hidalgo County, New 
Mexico, to open up the spring. The explosion resulted in destruction of 
the aquatic community, flows were reduced rather than increased, and 
Chiricahua leopard frogs subsequently disappeared (N. Scott, pers. 
comm. 1994). In the first half of 2001, Cuchillo Negro Spring in Sierra 
County, New Mexico, was excavated probably in an attempt to increase 
flows for downstream agricultural use. The spring, located on Bureau of 
Land Management lands, was occupied by Chiricahua leopard frogs prior 
to the excavation. Surveys in July 2001, after the excavation, failed 
to locate any Chiricahua leopard frogs, and pools that provided frog 
habitat had been largely destroyed (J. Rorabaugh, pers. obs. 2001).
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. The collection of Chiricahua leopard frogs in 
Arizona is prohibited by Arizona Game and Fish Commission Order 41, 
except where such collection is authorized by special permit. 
Collection of Chiricahua leopard frogs is also prohibited in Mexico. 
The collection or possession of Chiricahua leopard frogs is not 
prohibited in New Mexico.
    Over-collection for commercial purposes is known to be a 
contributing factor in the decline of other ranid frogs (Jennings and 
Hayes 1985, Corn and Fogelman 1984). Although collection is not 
documented as a cause of population decline or loss in the Chiricahua 
leopard frog, Painter (2000) notes that individuals have repeatedly 
joked to him that these frogs make good bass bait. The collection of 
large adult frogs for food, research, pets, or other purposes, 
particularly after a winter die-off or other event that severely 
reduces the adult population, can hasten the extirpation of small 
populations. The listing of the Chiricahua leopard frog and its 
recognition as a rare species are reasonably expected to increase its 
value to collectors. In 1995, many large adult Ramsey Canyon leopard 
frogs (closely related to the Chiricahua leopard frog) were reportedly 
illegally collected from a site in the Huachuca Mountains, Arizona, 
following publicity about the rare status of the frog. Leopard frogs 
are common in the pet trade in the United States, and although we are 
not aware of U.S. commercial trade in Chiricahua leopard frogs, it may 
occur. Diaz and Diaz (1997) note that Chiricahua leopard frogs are 
sometimes sold in pet shops in Mexico, but, as discussed, the identity 
of these frogs is questionable.
    C. Disease or predation. Predation by introduced, nonnative 
bullfrogs, fishes, tiger salamanders, and crayfish is

[[Page 40803]]

implicated as a contributing factor in the decline of ranid frogs in 
western North America (Fernandez and Rosen 1996, Bradford et al. 1993, 
Hayes and Jennings 1986, Moyle 1973), and may be the most important 
factor identified so far in the current decline of the Chiricahua 
leopard frog (Rosen et al. 1994, 1996a). In southeastern Arizona, Rosen 
et al. (1994, 1996a) documented 13 nonnative predaceous vertebrate 
species in aquatic communities in the range of the Chiricahua leopard 
frog, including bullfrog, tiger salamander, and 11 fish species 
including bass, trout, and catfish, among others.
    Rosen et al. (1994, 1996a) found that Chiricahua leopard frogs were 
replaced by bullfrogs and centrarchid fish. Sixteen of 19 sites where 
Chiricahua leopard frogs occurred lacked nonnative vertebrates. All 
historical frog sites that lacked Chiricahua leopard frogs supported 
nonnative vertebrates. At the three sites where Chiricahua leopard 
frogs occurred with nonnatives (one site with green sunfish, Lepomis 
cyanellus, and two with tiger salamanders), either the frog or the 
nonnative vertebrate was rare. In two of the three cases, frogs may 
have derived from other nearby sites (Rosen et al. 1996a), and thus may 
have represented immigrants rather than a viable population.
    In the San Rafael Valley, Arizona, Chiricahua leopard frogs were 
only found at sites that lacked nonnative fish and bullfrogs (Snyder et 
al. 1996). In the White Mountains of Arizona, disappearance of 
Chiricahua leopard frogs from most historical sites correlated with the 
appearance of tiger salamanders and nonnative crayfish (Fernandez and 
Rosen 1996, Fernandez and Bagnara 1995). Crayfish were found to prey 
upon Chiricahua leopard frog larvae, metamorphs, and adults. Crayfish 
recently spread to the breeding pond of one of the last and possibly 
the most robust populations of Chiricahua leopard frogs in the White 
Mountains, Arizona (M. Sredl, pers. comm. 1999, Fernandez and Rosen 
1998), and are now very abundant in former Chiricahua leopard frogs 
habitats on the Blue River, Arizona (J. Platz, pers. comm. 2000).
    Sredl and Howland (1994) noted that Chiricahua leopard frogs were 
nearly always absent from sites supporting bullfrogs and nonnative 
predatory fishes; however, Rosen et al. (1996a) suggested further study 
was needed to evaluate the effects of mosquitofish, trout, and catfish 
on frog presence. Rosen et al. (1996a) suspected that catfish would 
almost always exclude Chiricahua leopard frogs, and that trout may 
exclude leopard frogs.
    The Rio Grande leopard frog (Rana berlandieri) is a recent 
introduction to southwestern Arizona and southeastern California (Platz 
et al. 1990). Although the species does not presently occur within the 
range of the Chiricahua leopard frog, it is rapidly expanding its 
distribution and currently occurs as far east as the Phoenix area 
(Rorabaugh et al. 2002). If it continues to spread eastward, the ranges 
of the Rio Grande and Chiricahua leopard frogs may overlap in the 
future. This large, introduced leopard frog might prey on small 
Chiricahua leopard frogs (Platz et al. 1990), and tadpoles of the two 
species may compete.
    In contrast to nonnative aquatic vertebrates, numerous species of 
native fishes, the Sonoran mud turtle (Kinosternon sonoriense), other 
species of native ranid frogs, and native garter snakes commonly 
coexist with the Chiricahua leopard frog (Rosen et al. 1996a, Platz and 
Mecham 1979). Tiger salamanders are native to the following portions of 
the Chiricahua leopard frog's range: San Rafael Valley in southeastern 
Arizona (Ambystoma tigrinum stebbinsi), the northern portion of the 
species' range (Ambystoma tigrinum nebulosum), and the mountains of 
Sonora, Chihuahua, and Durango (Ambystoma rosaceum). Native fishes, 
such as trout (Oncorhynchus), chub (Gila), longfin dace (Agosia 
chrysogaster), and topminnow (Poeciliopsis), also occur within the 
range of the Chiricahua leopard frog.
    Fish, frogs, and salamanders, both native and nonnative, may 
facilitate disease transmission among Chiricahua leopard frog 
populations. Bullfrogs, Rio Grande leopard frogs, lowland leopard 
frogs, Sonora tiger salamanders, and other species found with 
Chiricahua leopard frogs are known to contract chytridiomycosis 
(Davidson et al. 2000, Speare and Berger 2000, Sredl et al. 2000), and 
could conceivably transmit that disease or other diseases to Chiricahua 
leopard frogs. Kiesecker et al. (2001) showed that rainbow trout 
(Oncorhynchus mykiss) may serve as a vector for a pathogenic water 
mold, Saprolegnia ferax, that has been associated with embryonic 
mortality of amphibians in the Cascade Mountains of Oregon, suggesting 
stocking of game fishes could facilitate disease transmission, as well.
    Postmetamorphic Death Syndrome (PDS) was implicated in the 
extirpation of Chiricahua leopard frog populations in Grant County, New 
Mexico, as well as in other frog and toad species. All stock tank 
populations of the Chiricahua leopard frog in the vicinity of Gillette 
and Cooney tanks disappeared within a three-year period, apparently as 
a result of PDS (Declining Amphibian Populations Task Force 1993). The 
syndrome is characterized by death of all or nearly all metamorphosed 
frogs in a short period of time, leaving only tadpoles surviving in the 
population. Dead or moribund frogs are often found during or 
immediately following winter dormancy or unusually cold periods. The 
syndrome appears to spread among adjacent populations causing regional 
loss of populations or metapopulations. Similar die-offs or spring 
absence of frogs were noted in Arizona and Sonora. Steve Hale (Tucson, 
AZ, pers. comm. 1994) noted that in some years, very few Chiricahua 
leopard frogs would occur in the canyons of the Santa Rita and Pajarito 
mountains in the spring, suggesting that frogs were dying during the 
winter months. The apparent post-metamorphic death of the Tarahumara 
frog was documented in southern Arizona and northern Sonora as early as 
1974, and by 1983 this species had died out in Arizona (Hale 2001, Hale 
et al. 1995, Hale and Jarchow 1988).
    Hale and Jarchow (1988) suggested arsenic and or cadmium poisoning 
might be contributing factors in these frog die-offs. Arsenic often 
occurs at high levels near sulfitic mine tailings and may be leached by 
rainfall containing elevated levels of sulfate (Hale and Jarchow 1988). 
Cadmium originating from airborne emissions from copper smelters in 
southern Arizona and northern Sonora was identified as another possible 
cause of mortality. Frogs appeared to persist most consistently at 
springs and headwaters where cadmium to zinc ratios were relatively 
low, which is consistent with the theory that contaminants were washing 
into streams and accumulating in downstream reaches. Precipitation 
collected in 1984 to 1985 in southeastern Arizona had a depth-weighted 
mean pH of 4.63 and carried high levels of sulfate, arsenic, cadmium, 
copper, lead, and zinc. High acidity and sulfate concentration occurred 
when upper-level winds were from the directions of copper smelters, 
particularly those at Douglas, AZ, and Cananea, Sonora (Blanchard and 
Stromberg 1987). In regard to the northern leopard frog, waters no more 
acidic than pH 6.0 are optimal for fertilization and early development 
(Schlichter 1981). When exposed to waters of pH 5.5 for 10 days, 72 
percent of northern leopard frogs died, versus a control group held in 
pH 7.0 that exhibited 3.5 percent mortality (Vatnick et al. 1999). 
These results suggest that

[[Page 40804]]

precipitation may have been acidic enough to affect Chiricahua leopard 
frog reproduction and survival. Small aquatic systems, such as stock 
tanks, that could be swamped by runoff during heavy rainfall events are 
most likely to be affected. Stock tanks with pHs of less than 4 were 
noted in the late 1990s on the west slope of the Huachuca Mountains, 
Arizona, which is near the smelter at Cananea (M. Pruss, pers. comm. 
1999). The smelters at Douglas and Cananea are now closed, thus we 
would expect a reduction or cessation of contaminant laden or acidic 
rainfall. How long it might take for residual elevated levels of 
cadmium, arsenic, and other smelter-related contaminants in the 
environment to disperse is unknown.
    In the 1990s disease was recognized as a significant factor, if not 
the most important proximate factor, in global amphibian decline. In 
retrospect, the die-offs observed in New Mexico and attributed to PDS, 
and die-offs of leopard frogs and Tarahumara frogs described above in 
Arizona and Sonora, appear consistent with disease outbreaks elsewhere 
in the world. Lips (1998) documented reduced abundance and skewed sex 
ratios of two anuran species, and dead and dying individuals of six 
other amphibian species in Puntarenas Province, Costa Rica. Her 
observations were consistent with a pathogen outbreak, and recent 
evidence suggests chytridiomycosis may be responsible for the declines 
(Longcore et al. 1999, Berger et al. 1998). Lips (1998) noted that 
declines in her study area were similar to those reported for 
Monteverde, Costa Rica, the Atlantic coast of Brazil, and Australia. 
Amphibian decline in these areas spread wave-like across the landscape, 
suggestive of pathogen dispersal. Further work by Berger et al. (1998) 
showed that chytrid fungi were associated with amphibian declines in 
Panama and Queensland, Australia; the authors hypothesize it is the 
proximate cause of amphibian decline in these areas. Evidence now 
suggests chytridiomycosis is responsible for observed declines of 
frogs, toads, and salamanders in portions of Central America (Panama 
and Costa Rica), South America (Atlantic coast of Brazil, Ecuador, and 
Uruguay), Australia (eastern and western States), New Zealand (South 
Island), Europe (Spain and Germany), Africa (South Africa, ``western 
Africa'', and Kenya), Mexico (Sonora), and the United States (8 States) 
(Speare and Berger 2000, Longcore et al. 1999, Berger et al. 1998, Hale 
2001). Ninety-four species of amphibians have been diagnosed as 
infected with the chytrid Batrachochytrium dendrobatidis (Hale 2001, 
Speare and Berger 2000). The proximal cause of extinctions of two 
species of Australian gastric brooding frogs and the golden toad (Bufo 
periglenes) in Costa Rica was likely chytridiomycosis. Another species 
in Australia for which individuals were diagnosed with the disease may 
now be extinct (Daszak 2000).
    In Arizona, chytrid infections have been reported from four 
populations of Chiricahua leopard frogs. Two populations of the closely 
related Ramsey Canyon leopard frog have also been infected (M. Sredl, 
pers. comm. 2000). In New Mexico, chytridiomycosis was identified in a 
declining population near Hurley, and patterns of decline at three 
other populations are consistent with chytridiomycosis (R. Jennings, 
pers. comm. 2000). Retrospective analysis of Tarahumara frog specimens 
collected during a die-off in Sycamore Canyon, Arizona, in 1974 showed 
they were infected with chytrids (T.R. Jones and P.J. Fernandez, pers. 
comm. 2001), and the disease has now been confirmed from all Tarahumara 
frog declines and extirpations in Arizona and Sonora where specimens 
have been available for examination (Hale 2001). Although 
chytridiomycosis has been associated with Southwestern ranid frog 
declines and extirpations, the role of the fungi in the larger picture 
of frog population dynamics is as yet undefined. It is clear that 
Chiricahua leopard frog populations can exist with the disease for 
extended periods. The frog has coexisted with chytridiomycosis in 
Sycamore Canyon, Arizona, since at least 1974. However, at a minimum, 
it is an additional stressor, resulting in periodic die-offs that 
increase the likelihood of extirpation and extinction.
    Although chytridiomycosis now appears to be the most likely 
proximate cause of ranid frog die-offs observed in Arizona and Sonora 
since the 1970s, Hale and Jarchow's (1988) contention that contaminants 
associated with copper smelters may have caused the die-offs should not 
be dismissed. In fact, many other environmental factors or stressors 
may interact with chytridiomycosis synergistically to either increase 
the virulence of the disease or compromise the immune systems of 
amphibians (Lips 1999). These factors or stressors may include 
increased levels of contaminants (such as cadmium, arsenic, pesticides 
and others), as suggested by Hale and Jarchow (1988), but also acidic 
rainfall, climate or microclimate (e.g., temperature, moisture) change, 
increased UV-B radiation, or other changes in habitats that cause 
stress and immunosuppression (Carey et al. 2001, 1999). Additional 
research is needed to determine how or if these factors are 
contributing, directly or indirectly, to the decline of the Chiricahua 
leopard frog.
    D. The inadequacy of existing regulatory mechanisms. A variety of 
existing international conventions and law, and Federal and State 
regulations provide limited protection to the Chiricahua leopard frog 
and its habitat (Arizona Game and Fish Commission Order 41). State 
regulations prohibit collection or hunting of Chiricahua leopard frogs 
in Arizona, except under special permit. Collection is not prohibited 
in New Mexico, and although collecting has not been documented as a 
cause of population loss, the typically small, geographically isolated 
populations of this species are extremely vulnerable to collection 
pressure. Regulations have not been adequate to stem habitat loss and 
degradation or to address factors such as introduction of nonnative 
    In Mexico, the collection of threatened species is prohibited; 
although individuals of this species have been reported in the Mexican 
pet trade (Diaz and Diaz 1997). The habitat of the Chiricahua leopard 
frog and other threatened species is protected from some activities in 
Mexico. The species is not protected by the Convention on International 
Trade in Endangered Species of Wild Fauna and Flora (CITES), which 
regulates international trade.
    The Lacey Act (16 U.S.C. 3371 et seq.), provides some protection 
for the Chiricahua leopard frog. This legislation prohibits the import, 
export, sale, receipt, acquisition, purchase, and engagement in 
interstate or foreign commerce of any species taken, possessed, or sold 
in violation of any law, treaty, or regulation of the United States, 
any Tribal law, or any law or regulation of any State.
    The Federal Land Policy Management Act of 1976 (43 U.S.C. 1701 et 
seq.) and the National Forest Management Act of 1976 (16 U.S.C. 1600 et 
seq.) direct Federal agencies to prepare programmatic-level management 
plans to guide long-term resource management decisions. In addition, 
the Forest Service is required to manage habitat to maintain viable 
populations of existing native and desired nonnative vertebrate species 
in planning areas (36 CFR 219.19). These regulations have resulted in 
the preparation of a variety of land management plans by the Forest 
Service and the Bureau of Land

[[Page 40805]]

Management that address management and resource protection of areas 
that support, or in the past, supported populations of Chiricahua 
leopard frogs.
    Nineteen of 41 sites confirmed as supporting extant populations of 
the Chiricahua leopard frog in New Mexico from 1994 to 1999, and 47 of 
87 sites occupied from 1994 to 2001 in Arizona, are on National Forest 
lands. Forty-three of these sites occur on the Coronado and Gila 
National Forests. Additional sites occur on the Apache-Sitgreaves, 
Tonto, and Coconino National Forests. As a result, Forest Service land 
management plans are particularly important in guiding the management 
of Chiricahua leopard frog habitat. However, these plans have not 
always adequately protected this species' habitat. Many activities that 
affect the Chiricahua leopard frog and its habitat are beyond Forest 
Service control. For instance, the Forest Service does not have the 
authority to regulate off-site activities such as atmospheric pollution 
from copper smelters or other actions that may be responsible for 
global amphibian declines, including that of the Chiricahua leopard 
frog. The Forest Service has only limited ability to regulate 
introductions or stockings of nonnative species that prey on Chiricahua 
leopard frogs. An effort is underway to restore natural fire regimes to 
forest lands, but at present it is focused on areas of urban interface, 
and many decades will likely pass before natural fire cycles are 
restored on a landscape scale across the Southwest. Despite extensive 
planning efforts by the Forest Service and implementation of management 
actions to protect wetlands and maintain viable populations of native 
species on Forest Service lands, loss of Chiricahua leopard frog 
populations and metapopulations continues.
    The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 
4321-4370a) requires Federal agencies to consider the environmental 
impacts of their actions. NEPA requires Federal agencies to describe 
the proposed action, consider alternatives, identify and disclose 
potential environmental impacts of each alternative, and involve the 
public in the decision-making process. Federal agencies are not 
required to select the alternative having the least significant 
environmental impacts. A Federal action agency may select an action 
that will adversely affect sensitive species provided that these 
effects were known and identified in a NEPA document. Most actions 
taken by the Forest Service, the Bureau of Land Management, and other 
Federal agencies that affect the Chiricahua leopard frog are subject to 
the NEPA process.
    State and Federal air quality regulations strictly regulate 
emissions from copper smelters, historically a major source of acidic 
rainfall and atmospheric cadmium and arsenic in southeastern Arizona, 
pollutants that may adversely affect the Chiricahua leopard frog (Hale 
and Jarchow 1988). However, a major source of these pollutants has been 
copper smelters in Cananea and Nacozari, Sonora; which are not subject 
to the same regulations as in the United States (Hale et al. 1995; 
Blanchard and Stromberg 1987).
    Wetland values and water quality of aquatic sites inhabited by the 
Chiricahua leopard frog are afforded varying protection under the 
Federal Water Pollution Control Act of 1948 (33 U.S.C. 1251-1376), as 
amended; and Federal Executive Orders 11988 (Floodplain Management) and 
11990 (Protection of Wetlands). The protection afforded by these and 
other Federal laws and regulations discussed herein has not halted 
population extirpation and the degradation of the habitat of this 
    The AGFD included the Chiricahua leopard frog on their draft list 
of species of concern (AGFD 1996); however, this designation affords no 
legal protection to the species or its habitat. State of Arizona 
Executive Order Number 89-16 (Streams and Riparian Resources), signed 
on June 10, 1989, directs State agencies to evaluate their actions and 
implement changes, as appropriate, to allow for restoration of riparian 
resources. Implementation of this regulation may reduce adverse effects 
of some State actions on the habitat of the Chiricahua leopard frog. 
The New Mexico Department of Game and Fish does not consider the 
Chiricahua to be threatened or endangered. The Department also adopted 
a wetland protection policy in which they do not endorse nor take any 
action that would promote any private or public project that would 
result in a net decrease in either wetland acreage or wetland habitat 
values. This policy affords only limited protection to Chiricahua 
leopard frog habitat because it is advisory only; destruction or 
alteration of wetlands is not regulated by State law.
    E. Other natural or manmade factors affecting its continued 
existence. Because of the inherent dynamic nature of southwestern 
wetland and riparian habitats, coupled with the increased likelihood of 
extirpation characteristic of small populations, the viability of 
extant populations of the Chiricahua leopard frog is thought, in many 
cases, to be relatively short. Approximately 38 percent of sites 
occupied by Chiricahua leopard frogs from 1994 to 2001 were artificial 
tanks or impoundments constructed for watering livestock. These 
environments are very dynamic due to flooding, drought, and human 
activities such as maintenance of stock tanks. In addition, stock tank 
populations are often quite small. Small populations are subject to 
extirpation from random variations in such factors as the demographics 
of age structure or sex ratio, and from disease and other natural 
events (Wilcox and Murphy 1985). Inbreeding depression and loss of 
genetic diversity may also occur in small populations of less than a 
few hundred individuals; such loss may reduce the fitness of 
individuals and the ability of the population to adapt to change 
(Frankel and Soule 1981). Both of these genetic considerations result 
in an increased likelihood of extirpation (Lande and Barrowclough 
    The dynamic nature of stock tank habitats and the small size of the 
populations that inhabit them suggest that many of these populations 
are not likely to persist for long periods. As an example, siltation 
and drought dramatically reduced the extent of surface water at 
Rosewood Tank in the San Bernardino Valley, Arizona (Matt Magoffin, San 
Bernardino National Wildlife Refuge, pers. comm. 1997). Surface water 
and habitat for frogs were reduced in June 1994 to a surface area of 
approximately 60 square feet that supported a population of 
approximately eight adult Chiricahua leopard frogs and several hundred 
tadpoles. In this instance the landowner was only able to prevent the 
population from being extirpated by repeated efforts to intervene on 
behalf of the Chiricahua leopard frog in trucking water to the site, 
rebuilding the tank, and constructing a small permanent pond to 
maintain habitat for the species.
    Some larger populations occurring in stream courses or other non-
stock tank habitats also experience dramatic changes in population 
size, such as in Sycamore Canyon in the Pajarito Mountains, Arizona, 
and on the eastern slope of the Santa Rita Mountains, Arizona (S. Hale, 
pers. comm. 1994). These aquatic systems, although much larger than a 
stock tank, experience dramatic environmental phenomena such as floods, 
drought, and in the case of Sycamore Canyon, varied zinc to cadmium 
ratios and chytridiomycosis, all of which may cause populations to 
crash. This suggests that even these relatively large and natural 
habitats and the frog populations they support are very dynamic. As a 
result of this dynamic nature, leopard frog

[[Page 40806]]

populations are susceptible to extirpation.
    As discussed in the ``Background'' section of this final rule, the 
viability of metapopulations is probably very different than small, 
isolated populations. In the absence of infectious disease, 
metapopulations are more likely to persist over time than small, more 
isolated populations, because individuals and genetic material can be 
exchanged among populations within the metapopulation, resulting in 
increased recolonization rates and fewer potential genetic problems. If 
infectious disease, such as chytridiomycosis is introduced, 
metapopulation structure and exchange of individuals among populations 
would facilitate disease transmission, possibly resulting in regional 
die-offs or extirpation, such as was observed in stock tank populations 
in Grant County, New Mexico (Declining Amphibian Populations Task Force 
1993). To define metapopulations of the Chiricahua leopard frog, some 
knowledge of the ability of this species to move among aquatic sites is 
required. Amphibians, in general, have limited dispersal and 
colonization abilities due to physiological constraints, limited 
movements, and high site fidelity (Blaustein et al. 1994); however, the 
ability of the Chiricahua leopard frog, thought to be one of the more 
aquatic of the leopard frogs, to move through arid environments may be 
surprising to many. In August 1996, Rosen and Schwalbe (1998) found up 
to 25 young adult and subadult Chiricahua leopard frogs at a roadside 
puddle in the San Bernardino Valley, Arizona. They believed that the 
only possible origin of these frogs was a stock tank located 5.5 km 
(3.4 mi) away. Rosen et al. (1996a) found small numbers of Chiricahua 
leopard frogs at two locations in Arizona that supported large 
populations of nonnative predators. The authors suggested these frogs 
could not have originated at these locations because successful 
reproduction would have been precluded by predation. They found that 
the likely source of these animals were populations 2 to 7 km (1.2 to 
4.3 mi) distant. In the Dragoon Mountains, Arizona, Chiricahua leopard 
frogs breed at Halfmoon Tank, but frogs occasionally turn up at Cochise 
Spring (1.3 km (0.8 mi) down canyon in an ephemeral drainage from 
Halfmoon Tank) and in Stronghold Canyon (1.7 km (1.1 mi) down canyon 
from Halfmoon Tank). There is no breeding habitat for Chiricahua 
leopard frogs at Cochise Spring or Stronghold Canyon, thus it appears 
observations of frogs at these sites represent immigrants from Halfmoon 
Tank. Dispersal of Chiricahua leopard frogs probably occurs most often 
along drainages, particularly those with permanent water, but also 
along intermittent stream courses and overland during summer rains.
    Where several populations of Chiricahua leopard frog occur in close 
proximity (separated by about 5 km or less), functional metapopulations 
may exist. Two areas of the Galiuro Mountains of Arizona have supported 
a total of 12 extant sites since 1994, including 4 sites in the 
northern end of the range and 8 in the southern end. A similar cluster 
of seven sites occurs in the Dragoon Mountains, AZ. In the Buckskin 
Hills of the Coconino National Forest, Arizona, 10 stock tank 
populations occur close enough together to consider them a 
metapopulation. Such metapopulations may exist elsewhere, for instance, 
in the southwestern quarter of the San Rafael Valley and the Crouch 
Creek area of Arizona, and in New Mexico, east and northeast of Hurley, 
and in the Frieborn Canyon-Dry Blue Creek area. However, with the 
exception of those in the Dragoon Mountains, the southern Galiuro 
Mountains, and the Buckskin Hills, metapopulations of which we are 
aware probably consist of five or fewer sites. Metapopulations, 
particularly the larger examples, are critical to long-term survival of 
the species. Also critical are large populations, such as on the 
Tularosa River, NM; and Sycamore Canyon and associated tanks in the 
Pajarito Mountains, AZ; which are expected to experience relatively low 
extinction rates and may serve as source populations for colonization 
of nearby suitable habitats. Unfortunately, these large populations and 
metapopulations, because they are not isolated, are the most likely to 
contract infectious disease. This increases our concern about disease 
and underscores the importance of minimizing the likelihood of human-
caused disease transmission. Populations have recently declined or been 
extirpated near Hurley, and these declines are associated with 
chytridiomycosis. The metapopulation in the Galiuro Mountains may have 
also crashed recently, although the extent and cause of decline is 
    We carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the Chiricahua leopard frog in developing this final rule. 
Based on this evaluation, our preferred action is to list the 
Chiricahua leopard frog as threatened. The Act defines an endangered 
species as one that is in danger of extinction throughout all or a 
significant portion of its range. The Act defines a threatened species 
as any species likely to become endangered within the foreseeable 
future throughout all or a significant portion of its range. This 
species is likely to become endangered within the foreseeable future 
throughout all or a significant portion of its range, and therefore 
meets the Act's definition of threatened.
    Within its range in the United States, the Chiricahua leopard frog 
is believed absent from more than 75 percent of historical sites, and 
has undergone regional extirpation in areas where it was once well-
distributed. The status of populations in Mexico is poorly understood, 
but the species is considered threatened by the Mexican Government. The 
species is not in immediate danger of extinction, because at least a 
few relatively robust populations and metapopulations still exist 
(e.g., Tularosa River, Dragoon Mountains, Buckskin Hills) and 
Chiricahua leopard frogs were found at 129 sites from 1994 to the 
present. However, if present threats and declines continue, the 
Chiricahua leopard frog is likely to become an endangered species in 
the foreseeable future (Painter 1996, Rosen et al. 1996a). Therefore, 
we believe that the Chiricahua leopard frog meets the definition of a 
threatened species under the Act.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as--(i) 
the specific areas within the geographic area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
consideration or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' means the use of all methods and procedures 
that are necessary to bring an endangered species or a threatened 
species to the point at which listing under the Act is no longer 
    Section 4(b)(2) and 4(b)(6)(C) of the Act, as amended, and 
implementing regulations (50 CFR 424.12) require that, to the maximum 
extent prudent and determinable, the Secretary designate critical 
habitat at the time the species is determined to be endangered or 
threatened. The designation of critical habitat is not prudent (50 CFR 
424.12(a)(1)) when one or both of the following situations exist--(1) 

[[Page 40807]]

species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat, or (2) such designation would not be beneficial to 
the species.
    Critical habitat designation would require publishing in the 
Federal Register locations of Chiricahua leopard frog populations and 
habitats essential for the conservation of the species. As discussed 
under Factor B in the ``Summary of Factors Affecting the Species,'' the 
Chiricahua leopard frog may be threatened by collection. Publishing 
site data would facilitate collection as it would provide collectors 
with specific, previously unknown, information about the location of 
this species. Collection has contributed to the decline of other rare 
anurans, including the endangered Wyoming toad (Bufo hemiophrys 
baxteri), threatened California red-legged frog (Rana aurora draytonii) 
(Stebbins and Cohen 1995, Jennings and Hayes 1995), and a number of 
other anuran species worldwide (Vial and Saylor 1993).
    Scientists have not documented collection, to date, as a cause of 
population decline or loss in the Chiricahua leopard frog. However, 
such collection would be difficult to document and collection of large 
adult frogs for food, fish bait, pets, scientific, or other purposes, 
particularly after a winter die-off or other event that severely 
reduces the adult population, could hasten the extirpation of small 
populations. Recognition of the Chiricahua leopard frog as a threatened 
species may increase its value to collectors. The Chiricahua leopard 
frog is an attractive, often bright green frog that probably does quite 
well in captivity. The northern leopard frog, Rana pipiens, a very 
similar animal, is common in the pet trade and we are aware of internet 
trade in ``leopard frogs,'' which could include Chiricahua leopard 
frogs. Chiricahua leopard frogs should be as attractive as the northern 
leopard frog to collectors, or perhaps more so because of their rarity. 
Diaz and Diaz (1997) report sale of Chiricahua leopard frogs as pets in 
Mexico (although the identity of these frogs to species is 
questionable). Painter (2000) notes that individuals have repeatedly 
joked to him that these frogs make good ``bass-bait.''
    Import and export data provided by our Division of Law Enforcement 
document a substantial amount of international trade in Rana spp. 
Specifically, for the period of January 1, 1996, to October 31, 1998, 
9,997 live individuals of Rana spp. were imported and 51,043 live 
individuals were exported from the United States. Because shipments of 
wildlife from the United States are not as closely monitored as 
imports, and are sometimes not recorded to the genus level (this is 
also true for imports as well), the number of exports documented for 
this timeframe is likely an under representation of what actually 
    In 1995, many large adult Ramsey Canyon leopard frogs (which are 
very similar in appearance and closely related to the Chiricahua 
leopard frog) were reportedly illegally collected from a site in the 
Huachuca Mountains, Arizona, following publicity about the rare status 
of the frog (from Service notes of the May 25, 1995, meeting of the 
Ramsey Canyon Leopard Frog Conservation Team). The site, which occurs 
within the range of the Chiricahua leopard frog, was considered 
extirpated until Ramsey Canyon leopard frogs were reestablished in 
2000. Collection probably contributed to the demise of this population. 
Following newspaper publicity regarding our proposal to list the Arroyo 
toad (Bufo microscaphus californicus), a former U.S. Forest Service 
employee found that a main pool near the road, formerly with a high 
density of calling males, was absent of males, some previously tagged. 
The tagged males could not be located elsewhere and it is not thought 
that their absence was due to natural movement or predation (Nancy 
Sandburg, U.S. Forest Service pers. comm. 1999). Publishing maps for 
the best populations and habitats of Chiricahua leopard frog could 
cause or contribute to similar declines or extirpations. The evidence 
shows, therefore, that threat of collection would increase 
substantially if we disclosed specific location information for all or 
the most important Chiricahua leopard frog populations and habitats.
    Publishing site data could also facilitate vandalism of habitats 
where Chiricahua leopard frogs occur. Platz (1995) noted the 
disappearance of large tadpoles at a Ramsey Canyon leopard frog site in 
Brown Canyon, Huachuca Mountains in 1991-1992, and suggested their 
disappearance may have, in part, resulted from an act of vandalism. 
Many Chiricahua leopard frog habitats are small and could be easily 
contaminated with toxicants or taken over by nonnative predators, 
resulting in extirpation of frog populations. The majority of extant 
populations also occur on public lands (primarily National Forest 
lands) with public access routes that lead to the populations or pass 
nearby. Public access to these sites is reasonably expected to 
facilitate collections or vandalism.
    Publishing maps of Chiricahua leopard frog sites could also 
facilitate disease transmission. Chytridiomycosis and other amphibian 
diseases can be spread by people visiting a Chiricahua leopard frog 
site. If a person visits a site where disease is present and then 
travels to another site, disease can be spread via muddy or wet boots, 
nets, vehicles or other equipment (Speare et al. 1998, David Green, 
National Wildlife Health Center, Madison, Wisconsin, pers. comm. 2000). 
Although other hypotheses have been proposed (Carey et al. 1999), 
Daszak et al. (1999) find that the pattern of amphibian deaths and 
population declines associated with chytridiomycosis is consistent with 
an introduced pathogen. The chytrid fungus is not known to have an 
airborne spore, but rather disperses between individuals and 
populations via zoospores that swim through water or during contact 
between infected animals (Daszak 1998). If chytridiomycosis is a recent 
introduction on a global scale, then dispersal by way of global or 
regional commerce, translocation of frogs and other organisms, and 
travel between affected and unaffected areas by anglers, scientists, 
tourists, and others are viable scenarios for transmission of this 
disease (Daszak et al. 1999, Halliday 1998). Furthermore, amphibians in 
the international pet trade (Europe and USA), outdoor pond supplies 
(USA), zoo trade (Europe and USA), laboratory supply houses (USA), and 
species recently introduced (cane toad (Bufo marinus) in Australia and 
bullfrog in the USA) have been found infected with chytrids, suggesting 
human-induced spread of the disease (Daszak 2000). Until the spread of 
chytridiomycosis is better understood, and the role of this and other 
diseases in the decline of the Chiricahua leopard frog is clarified, 
visitation of Chiricahua leopard frog sites should not be encouraged. 
Publishing maps of Chiricahua leopard frog sites could facilitate 
visitation by collectors or those who want to view the frog. Increased 
visitation increases the risk of infectious disease transmission. 
Because of a lack of isolation, metapopulations of frogs, which are 
critical to the survival and recovery of the Chiricahua leopard frog, 
may be most at risk from human-facilitated disease transmission.
    The prohibition of destruction or adverse modification of critical 
habitat is provided under section 7 of the Act, and therefore only 
applies to actions funded, authorized, or carried out by Federal 
agencies. ``Destruction or adverse modification'' is defined under

[[Page 40808]]

50 CFR 402.02 as an action that appreciably diminishes the value of 
critical habitat for the survival and recovery of the listed species. 
Similarly, section 7 prohibits jeopardizing the continued existence of 
a listed species. ``Jeopardize the continued existence'' is defined as 
an action that would be expected to reduce appreciably the likelihood 
of survival and recovery of a listed species.
    Given the similarity in the above definitions, in most cases 
Federal actions that would appreciably reduce the value of critical 
habitat for the survival and recovery of the Chiricahua leopard frog 
would also reduce appreciably the likelihood of survival and recovery 
of the species. The Chiricahua leopard frog occurs mostly in relatively 
small populations that are highly vulnerable to extirpation. Habitat 
alteration of a severity to result in destruction or adverse 
modification of critical habitat would likely also jeopardize the 
continued existence of the species. Similarly, reasonable and prudent 
alternative actions that would remove the likelihood of jeopardy would 
also remove the likelihood of destruction or adverse modification of 
critical habitat. While a critical habitat designation for habitat 
currently occupied by this species would not be likely to change the 
section 7 consultation outcome because an action that destroys or 
adversely modifies such critical habitat would also be likely to result 
in jeopardy to the species, there may be instances where section 7 
consultation would be triggered only if critical habitat is designated. 
Examples could include unoccupied habitat or occupied habitat that may 
become unoccupied in the future. One of our peer reviewers recommended 
designating critical habitat in major montane canyons and valley bottom 
cienegas, which today are largely overrun by nonnative predators and 
unoccupied by Chiricahua leopard frogs. This comment is addressed in 
issue 10 of the ``Summary of Comments and Recommendations'' herein. We 
concluded that designation of critical habitat in these areas is not 
currently prudent because a variety of aquatic and semiaquatic 
nonnative predators render them unsuitable as Chiricahua leopard frog 
habitat, we do not know how to remove those predators, and if 
Chiricahua leopard frogs could and did occupy these areas, just as with 
the currently occupied habitats, we would be concerned about increased 
human visitation and associated collection, vandalism, and disease 
transmission. We believe that any added benefit of critical habitat due 
to section 7 consultations in unoccupied habitat or recognition of 
areas important for recovery would be outweighed by the publication of 
detailed maps that would subject the species to the threat of 
collection, vandalism and disease transmission.
    In balancing the benefits of critical habitat designation against 
the increased threats, we believe the records show that there are few 
benefits to be derived in this particular instance from designation of 
critical habitat. We believe that any potential benefits of critical 
habitat designation, beyond those afforded by listing, when weighed 
against the negative impacts of disclosing site-specific sites, does 
not yield an overall benefit. We, therefore, determine that critical 
habitat designation is not prudent for the Chiricahua leopard frog. If 
information comes to light in the future indicating critical habitat is 
prudent, we will reconsider designation. Critical habitat designation 
will also be reconsidered in the recovery planning process.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against taking and harm are discussed, in 
part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is designated or proposed. Regulations implementing 
this interagency cooperation provision of the Act are codified at 50 
CFR part 402. Section 7(a)(4) requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. If a species is listed or critical 
habitat is designated subsequently, section 7(a)(2) requires Federal 
agencies to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of such a species 
or destroy or adversely modify its critical habitat. If a Federal 
action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with us.
    The Chiricahua leopard frog occurs on Federal lands managed by the 
Coronado, Apache-Sitgreaves, Tonto, Coconino, and Gila National 
Forests; the Bureau of Land Management; and our refuges. Examples of 
Federal actions that may affect the Chiricahua leopard frog include, 
but are not limited to, dredge-and-fill activities, grazing programs, 
construction and maintenance of stock tanks, logging and other 
vegetation removal activities, management of recreation, road 
construction, fish stocking, issuance of rights-of-ways, and 
discretionary actions authorizing mining. These and other Federal 
actions require section 7 consultation if the action agency determines 
that the proposed action may affect listed species. Since the 
Chiricahua leopard frog was proposed, we have conferenced with several 
National Forests in Arizona and New Mexico on proposed operation of 
grazing leases, and in cooperation with the Forests, we have drafted 
criteria for guiding determinations of effect in regard to section 7 
grazing consultations or conferences on the frog. These conferences are 
discussed in more detail in our response to Issue 8 in the ``Summary of 
Comments and Recommendations'' section of this rule.
    Development on private or State lands requiring permits from 
Federal agencies, such as permits from the U.S. Army Corps of Engineers 
under section 404 of the Clean Water Act, would also be subject to the 
section 7 consultation process. Federal actions not affecting the 
species, as well as actions that are not federally funded or permitted, 
would not require section 7 consultation. However, prohibitions under 
section 9 of the Act (discussed below) would apply.
    Important regional efforts are currently underway to establish 
viable metapopulations of Chiricahua leopard frogs. We are currently 
working with Arizona Game and Fish Department, New Mexico Department of 
Game and Fish, the University of Arizona, and several Federal and 
private landowners in these efforts. An ongoing regional conservation 
planning effort in the San Bernardino Valley, Arizona, being undertaken 
by this agency, the Forest Service, State, and private individuals is a 
good example of such efforts. Owners of the Magoffin Ranch, in 
particular, have devoted extensive efforts to conserving leopard frogs 
and habitat at stock tanks on that ranch. As part of the San Bernardino 
Valley conservation

[[Page 40809]]

effort, a high school teacher and his students rear tadpoles in 
Douglas, Arizona, and established populations of Chiricahua leopard 
frogs in small constructed wetlands at Douglas area public schools 
(Biology 150 Class, Douglas High School 1998). In another regional 
conservation effort, the Tonto National Forest, Arizona, Arizona Game 
and Fish Department, and the Phoenix Zoo have developed a Chiricahua 
leopard frog ``conservation and management zone'' in which frogs have 
been reared and released into the wild to establish new populations 
(Sredl and Healy 1999). Another effort to remove nonnative predators 
and reestablish Chiricahua leopard frogs is underway at Buenos Aires 
National Wildlife Refuge, Arizona (Schwalbe and Rosen 2001). A similar 
regional conservation plan, involving The Nature Conservancy, Dr. Randy 
Jennings, and New Mexico Department of Game and Fish, is underway on 
the Mimbres River, New Mexico.
    We commend the individuals involved in these efforts. These 
regional conservation plans are proving grounds for developing the 
techniques to recover the species rangewide. As such, we strongly 
support them, and encourage others to develop regional conservation 
plans. We will provide assistance and use our authorities to the 
fullest extent possible to help develop and implement site-specific 
conservation activities for this species. When the Chiricahua leopard 
frog is listed, handling, rearing, translocation or other forms of 
direct or incidental take resulting from conservation activities can 
continue under section 10 permits from us. Incidental take associated 
with conservation plans may also be permitted pursuant to an incidental 
take statement in a biological opinion for activities under Federal 
jurisdiction. Prior to the species listing, we will attempt work with 
the individuals involved in these conservation efforts to ensure that 
permits are issued promptly and that the process does not interrupt or 
hinder ongoing recovery actions.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all threatened 
wildlife. These prohibitions, including the regulations codified at 50 
CFR part 17, make it illegal for any person subject to the jurisdiction 
of the United States to ``take'' a species, which is defined as killing 
a species or significantly harming it, including harassment or habitat 
destruction which causes death or significant injury to the species. 
These prohibitions also make it illegal to import or export, transport 
in interstate or foreign commerce in the course of a commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any threatened species unless provided for under a special rule. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken illegally. Certain exceptions will 
apply to persons acting in an agency capacity on the behalf of the 
Service and to activities associated with cooperative State 
conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving threatened wildlife species under certain circumstances. 
Regulations governing permits are codified at 50 CFR 17.32. Such 
permits are available for scientific purposes, to enhance the 
propagation or survival of the species, and/or for incidental take in 
connection with otherwise lawful activities. For threatened species, 
permits also are available for zoological exhibition, educational 
purposes, or special purposes consistent with the purposes of the Act.
    It is our policy (July 1, 1994; 59 FR 34272) to identify to the 
maximum extent practicable at the time a species is listed those 
activities that would or would not likely constitute a violation of 
section 9 of the Act. The intent of this policy is to increase public 
awareness of the effect of the listing on proposed and ongoing 
activities within a species' range. Based on the best available 
information, the following are examples of actions that would not 
likely result in a violation of section 9:
    (1) Actions that may affect Chiricahua leopard frog that are 
authorized, funded or carried out by a Federal agency when the action 
is conducted in accordance with an incidental take statement issued by 
us pursuant to section 7 of the Act, or for which such action will not 
result in take;
    (2) Actions that may result in take of Chiricahua leopard frog when 
the action is conducted in accordance with a permit under section 10 of 
the Act;
    (3) Recreational activities such as sightseeing, hiking, camping, 
and hunting in the vicinity of Chiricahua leopard frog populations that 
do not destroy or significantly degrade Chiricahua leopard frog 
habitat, and do not result in take of frogs;
    (4) Release, diversion, or withdrawal of water from or near 
Chiricahua leopard frog habitat in a manner that does not displace or 
result in desiccation or death of eggs, tadpoles, or adults; does not 
disrupt breeding activities of frogs; does not favor introduction of 
nonnative predators; and does not alter vegetation characteristics at 
or near Chiricahua leopard frog sites to an extent that it exposes 
frogs to increased predation;
    (5) Logging activities that do not result in erosion or siltation 
of stream beds and other aquatic habitats occupied by Chiricahua 
leopard frogs, do not adversely affect water quality, and do not denude 
shoreline vegetation or terrestrial vegetation in occupied habitat; and
    (6) In accordance with the special rule, activities associated with 
the use and maintenance of livestock tanks, such as, but not limited 
to: trampling by livestock, cleaning sediment from the tanks, and 
clearing or grazing of vegetation around the tanks.
    Activities that we believe could potentially result in ``take'' of 
the Chiricahua leopard frog, include, but are not limited to the 
    (1) Unauthorized collection, capture, or handling of the species;
    (2) Intentional introduction of nonnative predators, such as 
nonnative fish, bullfrogs, crayfish, or tiger salamanders into occupied 
frog habitat;
    (3) Any activity not carried out pursuant to the special rule 
described in ``Sec. 17.43 Special rules-vertebrates'' that results in 
destruction or significant alteration of habitat of Chiricahua leopard 
frog including, but not limited to, the discharge of fill material into 
aquatic habitat occupied by the species, the diversion or alteration of 
stream flows and aquatic habitats occupied by the species or withdrawal 
of water to the point at which habitat becomes unsuitable for the 
species, grazing in occupied habitat or overgrazing in the watersheds 
of occupied habitat, and the alteration of the physical channels within 
the stream segments and aquatic habitats occupied by the species;
    (4) Water diversions, groundwater pumping, water releases or other 
water management activities that result in displacement or death of 
eggs, tadpoles, or adult frogs; disruption of breeding activities; 
introduction of nonnative predators; or significant alteration of 
vegetation characteristics at or near occupied sites. However, pursuant 
to the special rule for this species, operation and maintenance of 
livestock tanks on private, State, or Tribal lands that result in 
incidental mortality of frogs would not be considered a violation of 
section 9;
    (5) Discharge or dumping of hazardous materials, silt, or other 
pollutants into waters supporting the species;
    (6) Possession, sale, delivery, transport, or shipment of illegally 
taken Chiricahua leopard frogs; and

[[Page 40810]]

    (7) Actions that take Chiricahua leopard frogs that are not 
authorized by either a permit under section 10 of the Act or an 
incidental take statement under section 7 of the Act, or are not 
exempted from the section 9 take prohibitions as described in the 
special rule ``Sec. 17.43 Special rules-amphibians'' for this species; 
the term ``take'' includes harassing, harming, pursuing, hunting, 
shooting, wounding, killing, trapping, capture, or collecting, or 
attempting any of these actions.
    Not all of the activities mentioned above will result in violation 
of section 9 of the Act; only those activities which result in ``take'' 
of Chiricahua leopard frog would be considered violations of section 9. 
We will review other activities not identified above on a case-by-case 
basis to determine whether they may be likely to result in a violation 
of section 9 of the Act. We do not consider these lists to be 
exhaustive and provide them as information to the public. Please direct 
your questions regarding whether specific activities will constitute a 
violation of section 9 to the Field Supervisor, Arizona Ecological 
Services Field Office (see ADDRESSES section).
    We may issue permits to carry out otherwise prohibited activities 
involving threatened wildlife species under certain circumstances. 
Regulations governing permits for threatened species are at 50 CFR 
17.32. Address your requests for copies of the regulations on listed 
wildlife and inquiries about prohibitions and permits to the U.S. Fish 
and Wildlife Service, Branch of Endangered Species/Permits, P.O. Box 
1306, Albuquerque, NM 87103 (telephone (505)248-6920, facsimile 

Required Determinations

    (1) Civil Justice Reform. A decision on whether the Chiricahua 
leopard frog should be listed is required by the Endangered Species Act 
and the need for this threatened designation is well documented herein. 
Special rules may be issued by the Secretary of the Interior pursuant 
to section 4(d) of the Act when such regulation is deemed ``necessary 
and advisable to provide for the conservation of the species.'' The 
special rule will promote the conservation of the Chiricahua leopard 
frog by allowing ranchers to continue to maintain their stock tanks, 
which provide habitat for the frog, as they have in the past without 
additional regulatory burdens being imposed as a result of the listing 
of the frog as threatened. The rule clearly states that existing and 
future stock tanks on non-Federal land can be used and maintained 
without fear of violating section 9 of the Act. Since the special rule 
will benefit the Chiricahua leopard frog without imposing a burden on 
the public; we do not expect it to be challenged. As a result, in 
accordance with Executive Order 12988, the Office of the Solicitor has 
determined that the listing and special rule do not unduly burden the 
judicial system and meet the requirements of sections 3(a) and 3(b)(2) 
of the Order.
    (2) National Environmental Policy Act. We have determined that 
Environmental Assessments and Environmental Impact Statements, as 
defined under the authority of the National Environmental Policy Act of 
1969, need not be prepared in connection with regulations adopted 
pursuant to section 4(a) of the Endangered Species Act, as amended. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). In addition, we 
have determined that Environmental Assessments and Environmental Impact 
Statements, as defined under the authority of the National 
Environmental Policy Act, need not be prepared in connection with 
regulations adopted pursuant to section 4(d) when they accompany 
listings, as in this case.
    (3) Government-to-Government Relationship with Tribes. In 
accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) Executive Order 13175 and 512 DM 2, we have 
evaluated possible effects on Federally recognized Indian tribes and 
have determined that there are no effects.
    (4) Paperwork Reduction Act. This rule does not contain any new 
collections of information other than those already approved under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of 
Management and Budget Control Number 1018-0094, which expires on July 
31, 2004. An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid Control Number. For additional information concerning 
permit and associated requirements for endangered species, see 50 CFR 

References Cited

    You may request a list of all references cited in this document, as 
well as others, from the Arizona Ecological Services Field Office (see 
ADDRESSES section).


    The primary author of this notice is James Rorabaugh (see ADDRESSES 

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    We amend Part 17, subchapter B of chapter I, title 50 of the Code 
of Federal Regulations, as follows:


    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec. 17.11(h) by adding the following in alphabetical 
order, under AMPHIBIANS, to the List of Endangered and Threatened 

Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 40811]]

                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened

                   *                  *                  *                  *                  *                  *                  *

                   *                  *                  *                  *                  *                  *                  *
Frog, Chiricahua leopard.........  Rana chiricahuensis.  U.S.A. (AZ, NM),     Entire.............  T                       726           NA  Sec.  17.43
                                                          Mexico.                                                                                    (b)

                   *                  *                  *                  *                  *                  *                  *

    3. Amend Sec. 17.43 by adding paragraph (b) to read as follows:

Sec. 17.43  Special rules--amphibians.

* * * * *
    (b) Chiricahua leopard frog (Rana chiricahuensis).
    (1) What activities are prohibited? Except as noted in paragraph 
(b)(2) of this section, all prohibitions of Sec. 17.31 will apply to 
the Chiricahua leopard frog.
    (2) What activities are allowed on private, State, or Tribal land? 
Incidental take of the Chiricahua leopard frog will not be considered a 
violation of section 9 of the Act, if the take results from livestock 
use at or maintenance activities of livestock tanks located on private, 
State, or Tribal lands. A livestock tank is defined as an existing or 
future impoundment in an ephemeral drainage or upland site constructed 
primarily as a watering site for livestock.

    Dated: June 6, 2002.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-14730 Filed 6-12-02; 8:45 am]