[Federal Register: June 25, 2007 (Volume 72, Number 121)]
[Proposed Rules]               
[Page 34657-34661]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition To List the Sierra Nevada Distinct Population Segment of 
the Mountain Yellow-Legged Frog (Rana muscosa)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of an amended 12-month petition finding.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce an 
amended 12-month finding on a petition to list the Sierra Nevada 
distinct population segment (DPS) of the mountain yellow-legged frog 
(Rana muscosa) under the Endangered Species Act of 1973, as amended 
(Act). We are amending our previous 12-month petition finding, which 
found that listing is warranted but precluded, by revising the 
preclusion and expeditious progress section of that finding.

DATES: The finding announced in this document was made on June 25, 

ADDRESSES: Supporting documentation used in the development of this 
amended 12-month finding will be available for inspection, by 
appointment, during normal business hours at the Endangered Species 
Program, Division of Conservation and Classification, U.S. Fish and 
Wildlife Service, 4401 N. Fairfax Drive, Room 420, Arlington, VA 22203. 
Comments and materials received, as well as supporting documentation 
used in the development of the initial 12-month finding published on 
January 16, 2003 (68 FR 2283), are available for inspection, by 
appointment, during normal business hours at the Sacramento Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, Room 
W-2605, Sacramento, CA 95825.

FOR FURTHER INFORMATION CONTACT: Chris Nolin, Chief, Division of 
Conservation and Classification, Endangered Species Program (see 
ADDRESSES section) (telephone 703-358-2171). Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 
days a week.



    Section 4(b)(3)(B) of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. 1531 et seq.), requires that, for any petition 
to revise the Lists of Endangered and Threatened Wildlife and Plants 
that contains substantial scientific or commercial information that the 
petitioned action may be warranted, we make a finding within 12 months 
of the date of the receipt of the petition on whether the petitioned 
action is: (a) Not warranted, (b) warranted, or (c) warranted, but that 
the immediate proposal of a regulation implementing the petitioned 
action is precluded by other pending proposals to determine whether any 
species is threatened or endangered, and expeditious progress is being 
made to add or remove qualified species from the Lists of Endangered 
and Threatened Wildlife and Plants (Lists). Such 12-

[[Page 34658]]

month findings are to be published promptly in the Federal Register. In 
addition, section 4(b)(3)(C) of the Act requires that a petition for 
which the requested action is found to be warranted but precluded shall 
be treated as though resubmitted on the date of such finding, requiring 
a subsequent finding to be made within 12 months; we refer to such 
findings as ``resubmitted petition findings.''

Biological Information and Summary of Factors Affecting the Species

    Our initial 12-month finding, published in the Federal Register on 
January 16, 2003 (68 FR 2283), included information on the biology, 
status, and summary of factors affecting the species. This information 
has been updated annually through our Candidate Notice of Review 
(CNOR), in which we evaluate the available scientific information and 
make our resubmitted petition findings on this and other species for 
which we previously have made a 12-month finding that listing is 
warranted but precluded. The most recent CNOR was published on 
September 12, 2006 (71 FR 53756); in it we continued to find that 
listing the Sierra Nevada DPS of the mountain yellow-legged frog is 
warranted but precluded, based on the latest species assessment for 
this taxon. That assessment, which provides the most current 
information on the biology, status, and summary of factors affecting 
the species, is available on our Internet Web site at http://www.fws.gov/endangered/candidates/index.html.
 We are currently 

reviewing and evaluating the available information on this taxon and 
will again update our species assessment and resubmitted petition 
finding in the next CNOR, which we anticipate we will publish in fall 
2007, unless we take some other listing action pertaining to the Sierra 
Nevada DPS of the mountain yellow-legged frog prior to that time.

Previous Federal Actions

    On February 10, 2000, we received a petition, dated February 8, 
2000, from the Center for Biological Diversity and Pacific Rivers 
Council to list the Sierra Nevada population of the mountain yellow-
legged frog stating that the Sierra Nevada population of the mountain 
yellow-legged frog satisfies the criteria in our Distinct Population 
Segment (DPS) Policy and that it should be listed as endangered. On 
October 12, 2000, we published a 90-day finding on that petition in the 
Federal Register (65 FR 60603), concluding that the petition presented 
substantial scientific or commercial information to indicate that the 
listing of the Sierra Nevada population of the mountain yellow-legged 
frog may be warranted; we also requested information and data regarding 
the species. On January 10, 2003, we made a 12-month petition finding 
that listing was warranted but precluded, and we published the 12-month 
finding in the Federal Register on January 16, 2003 (68 FR 2283). We 
made this finding in accordance with a court order requiring us to 
complete a finding by January 10, 2003 (Center for Biological Diversity 
v. Norton, No. 01-2106 (N. D. Cal. Dec. 12, 2001)). Upon publication of 
that finding, we added the Sierra Nevada DPS of the mountain yellow-
legged frog to our list of species that are candidates for listing.
    The Center for Biological Diversity and the Pacific Rivers Council 
challenged our finding that listing was warranted but precluded, and 
sought to compel the Service to proceed with listing the frog. On June 
21, 2004, the U.S. District Court for the Eastern District of 
California granted summary judgment in favor of the United States 
(Center for Biological Diversity v. Norton, No. 03-01758 (E. D. Cal. 
June 21, 2004)). In response to an appeal of the decision, on October 
18, 2006, the 9th Circuit Court of Appeals reversed and remanded the 
District Court's judgment. Specifically, the 9th Circuit Court of 
Appeals concluded that the 12-month finding we published on January 16, 
2003, did not meet the requirements of section 4(b)(3)(B) of the Act, 
because the finding did not contain information demonstrating that: (1) 
The immediate proposal and timely promulgation of a final regulation 
implementing the petitioned action is precluded by pending proposals to 
determine whether any species is an endangered species or a threatened 
species; and (2) expeditious progress is being made to add qualified 
species to either of the Lists and to remove from such Lists species 
for which the protections of the Act are no longer necessary (Center 
for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1103 (9th Cir. 
Oct. 18, 2006)).
    We are addressing the 9th Circuit Court's ruling by amending our 
January 16, 2003, warranted but precluded finding to include a 
description and evaluation of the reasons and data demonstrating why 
listing the Sierra Nevada DPS of the mountain yellow-legged frog was 
precluded and describing the expeditious progress we had made on adding 
qualified species to the Lists at the time we published the 12-month 

Preclusion and Expeditious Progress

    Preclusion is a function of the listing priority of a species in 
relation to the resources that are available and competing demands for 
those resources. Thus, in any given fiscal year (FY), multiple factors 
dictate whether it will be possible to undertake work on a proposed 
listing regulation or whether promulgation of such a proposal is 
warranted but precluded by higher priority listing actions.
    The resources available for listing actions are determined through 
the annual Congressional appropriations process. The appropriation for 
the Listing Program is available to support work involving the 
following listing actions: Proposed and final listing rules; 90-day and 
12-month findings on petitions to add species to the Lists or to change 
the status of a species from threatened to endangered; resubmitted 
petition findings; proposed and final rules designating critical 
habitat; and litigation-related, administrative, and program management 
functions (including preparing and allocating budgets, responding to 
Congressional and public inquiries, and conducting public outreach 
regarding listing and critical habitat). The work involved in preparing 
various listing documents can be extensive and may include, but is not 
limited to: gathering and assessing the best scientific and commercial 
data available and conducting analyses used as the basis for our 
decisions; writing and publishing documents; and obtaining, reviewing, 
and evaluating public comments and peer review comments on proposed 
rules and incorporating relevant information into final rules. The 
number of listing actions that we can undertake in a given year also is 
influenced by the complexity of those listing actions, i.e., more 
complex actions generally are more costly. For example, during the past 
several years, the cost (excluding publication costs) for preparing a 
12-month finding, without a proposed listing rule, has ranged from 
approximately $11,000 for one species with a restricted range and 
involving a relatively uncomplicated analysis, to $305,000 for another 
species that is wide-ranging and involved a complex analysis.
    We cannot spend more than is appropriated for the Listing Program 
without violating the Anti-Deficiency Act (31 U.S.C. 1341(a)(1)(A)). In 
addition, in FY 1998 and for each fiscal year since then, Congress has 
placed a statutory cap on funds which may be expended for the Listing 
Program, equal to the amount expressly appropriated

[[Page 34659]]

for that purpose in that fiscal year (see H.R. 2107, 105th Cong. 
(1997)). This cap was designed to prevent funds appropriated for other 
functions under the Act, or for other Service programs, from being used 
for Listing Program actions (see H.R. No. 105-163, at 21, 25 (1997)).
    Recognizing that designation of critical habitat for species 
already listed would consume most of the overall Listing Program 
appropriation, Congress also put a critical habitat subcap in place in 
FY 2002 and has retained it each subsequent year to ensure that some 
funds are available for other work in theListing Program: ``The 
critical habitat designation subcap will ensure that some funding is 
available to address other listing activities'' (H.R. Rep. No. 107-103, 
at 30 (2001). In FY 2002 and each year since then, the Service has had 
to use virtually the entire critical habitat subcap to address court-
mandated designations of critical habitat, and consequently none of the 
critical habitat subcap funds have been available for other listing 
    Thus, through the listing cap, the critical habitat subcap, and the 
amount of funds needed to address court-mandated critical habitat 
designations, Congress and the courts have in effect determined the 
amount of money available for other listing activities. Therefore, the 
funds in the listing cap, other than those needed to address court-
mandated critical habitat for already listed species, set the limits on 
our determinations of preclusion and expeditious progress.
    Congress also recognized that the availability of resources was the 
key element in deciding whether, when making a 12-month petition 
finding, we would prepare and issue a listing proposal or make a 
``warranted but precluded'' finding for a given species. The Conference 
Report No. 835 accompanying Public Law 97-304, which established the 
current statutory deadlines and the warranted but precluded finding, 
states (in a discussion on 90-day petition findings that by its own 
terms also covers 12-month findings) that the deadlines were ``not 
intended to allow the Secretary to delay commencing the rulemaking 
process for any reason other than that the existence of pending or 
imminent proposals to list species subject to a greater degree of 
threat would make allocation of resources to such a petition [i.e., for 
a lower-ranking species] unwise'' (H.R. Conf. Rep. No. 97-835, at 21 
(1982)). Taking into account the information presented above, in FY 
2003 (the fiscal year in which we made our initial warranted but 
precluded finding for this population of the mountain yellow-legged 
frog), the outer parameter within which ``expeditious progress'' must 
be measured is that amount of progress that could be achieved by 
spending $3,077,000, which was the amount available in the Listing 
Program appropriation that was not within the critical habitat subcap.
    Our process is to make our determinations of preclusion on a 
nationwide basis to ensure that the species most in need of listing 
will be addressed first and also because we allocate our listing budget 
on a nationwide basis. However, through court orders and court-approved 
settlements, Federal district courts have mandated that we must 
complete certain listing activities with respect to specified species 
and have established the schedules by which we must complete those 
activities. The species involved in these court-mandated listing 
activities are not always those that we have identified as being most 
in need of listing. As described below, a large majority of the 
$3,077,000 appropriation available in FY 2003 for new listings of 
species was consumed by court-mandated listing activities; by ordering 
or sanctioning these actions the courts essentially determined that 
these were the highest priority actions to be undertaken with available 
funding. Copies of the court orders and settlement agreements referred 
to below are available from the Service (see ADDRESSES section above) 
and are part of the administrative record for this resubmitted petition 
    The FY 2003 appropriation of $3,077,000 for listing activities 
(i.e., the portion of the Listing Program funding not related to 
critical habitat designations for species that already are listed) was 
fully allocated to fund work in the following categories of actions in 
the Listing Program (see Table below): Compliance with court orders and 
court-approved settlement agreements requiring that petition findings 
or listing determinations be completed by a specific date; section 4 
(of the Act) listing actions with absolute statutory deadlines; 
essential litigation-related, and administrative- and program-
management functions; and a few high-priority listing actions.

                       FY 2003 Listing Allocation
                                             Allocated        balance
FY03 Appropriation......................      $3,077,000      $3,077,000
Capability Funding (Regional Office              700,000       2,377,000
 staff salaries)........................
Economic Analysis*......................           9,805       2,367,195
Federal Register Printing...............         188,700       2,178,495
Attorney Fee Awards and Litigation......          39,496       2,138,999
General Program Activities (funds used         2,138,999               0
 primarily for work on 90-day and 12-
 month petition findings required by
 statute, or by court-order or
 settlement agreements; also for limited
 work on proposed rules; also includes
 Washington Office salaries)............
* Funds used for work on critical habitat associated with a proposed
  listing determination for Scotts Valley polygonum.

    In FY 2003, our allocation of Listing Program funds included a 
limited amount of funding ($100,000) to each Regional office to ensure 
that the office maintained minimal core capacity for listing actions 
(e.g., evaluating the status of species to help ensure that an 
emergency listing action can be taken if necessary, participating in 
work to meet the statutory requirement to annually review and make 
findings on resubmitted petitions). In a Region that faces a relatively 
limited workload in the Listing Program with regard to deadlines 
resulting from court orders or settlement agreements, and a relatively 
limited workload related to meeting statutory deadlines, some of this 
``capability'' funding may be available to address high priority 
listing actions. However, in most Regions the limited amount of 
capability funding for Regional offices included in an allocation is 
used for work associated with supporting listing actions related to 
court orders or settlement agreements, and for meeting statutory

[[Page 34660]]

deadlines (i.e., there are no funds available for high priority listing 
    Based on the available funds and their allocation for these 
purposes, no FY 2003 funds were available for proposed listing actions 
for any species, including the Sierra Nevada DPS of the mountain 
yellow-legged frog, except for those with court-ordered deadlines and 
for the Miami blue butterfly (see explanation below for why we worked 
on a proposed rule for this species). Specific details regarding the 
individual actions taken using the FY 2003 funding, which precluded our 
ability to undertake a listing proposal for the Sierra Nevada DPS of 
the mountain yellow-legged frog, are provided below. As noted below, in 
some instances, the work was based on meeting deadlines established by 
court order or by settlement agreements. In other instances, the work 
was done in order to meet statutory deadlines. All 12-month findings 
are subject to an unqualified statutory deadline. With regard to 90-day 
findings, the decision in Biodiversity Legal Foundation v. Badgley, 309 
F.3d 1166 (9th Cir. 2002), held that the Act requires that 90-day 
petition findings (i.e., the initial finding as to whether a petition 
contains substantial information, which the Act directs us to make 
within 90 days of receipt of a petition, if practicable) must be made 
no later than 12 months after receipt of the petition, regardless of 
whether it is practicable to do so. Thus, all 90-day findings are 
arguably subject to an absolute statutory deadline. As a result of this 
ruling, which changed our interpretation of section 4(b)(3) of the Act, 
we have been working to issue petition findings on outstanding 
    Our decision that a proposed rule to list the Sierra Nevada DPS of 
the mountain yellow-legged frog was warranted but precluded, included 
consideration of its listing priority. In accordance with guidance we 
published on September 21, 1983, we assign a listing priority number 
(LPN) to each candidate species (48 FR 43098). Such a priority ranking 
guidance system is required under section 4(h)(3) of the Act (16 U.S.C. 
1533(h)(3)). Using this guidance, we assign each candidate a LPN of 1 
to 12, depending on the magnitude of threats, imminence of threats, and 
taxonomic status; the lower the listing priority number, the higher the 
listing priority (e.g., a species with a LPN of 1 would have the 
highest listing priority). At the time we made our 12-month finding (68 
FR 2283, January 16, 2003), we assigned the Sierra Nevada DPS of the 
mountain yellow-legged frog a LPN of 3 based on threats that were of a 
high magnitude and imminent, and on its taxonomic status as a distinct 
population segment. Thus, listing this population of the frog was 
precluded by the more than 80 candidate species that had higher listing 
priority (LPN = 2) at the time of our petition finding (see Table 1 of 
the Notice of Review; 67 FR 40657, June 13, 2002), in addition to being 
precluded by lack of available funds.
    As explained above, a determination that listing is warranted but 
precluded also must demonstrate that expeditious progress is being made 
to add and remove qualified species to the Lists. (We note that in this 
amended finding we do not discuss specific actions taken on progress 
towards removing species from the Lists because that work is conducted 
using appropriations for our Recovery program, a separately-budgeted 
component of the Endangered Species Program. As explained above in our 
description of the statutory cap on Listing Program funds, the Recovery 
Program funds and actions supported by them cannot be considered in 
determining expeditious progress made in the Listing Program.) As with 
our ``precluded'' finding, expeditious progress in adding qualified 
species to the Lists is a function of the resources available and the 
competing demands for those funds. Our expeditious progress in FY 2003 
in the Listing Program, up to the date we published the 12-month 
finding for the Sierra Nevada DPS of the mountain yellow-legged frog, 
included preparing and publishing the following:
    (1) Final rule to list Lomatium cookii (Cook's lomatium) and 
Limnanthes floccosa (large-flowered woolly meadowfoam) (67 FR 68004, 
November 7, 2002). The deadline for this action was the result of a 
court-approved settlement agreement.
    (2) Withdrawal of a proposed rule to list the flat-tailed lizard as 
threatened (68 FR 331, January 3, 2003). The deadline for this listing 
decision was the result of a court order.
    (3) 12-month petition finding for the Yosemite toad (67 FR 75834, 
December 10, 2002). The deadline for this action was the result of a 
court-approved settlement agreement.
    (4) 90-day petition findings for three species: Washington 
population of the western gray squirrel (67 FR 65931, October 29, 2002) 
(deadline set by a court order), Mono basin population of the greater 
sage-grouse (67 FR 78811, December 26, 2002) (statutory deadline), and 
cerulean warbler (67 FR 65083, October 23, 2002) (statutory deadline).
    Our expeditious progress also included work on listing actions for 
55 species for which decisions had not been completed as of the date we 
published our initial 12-month finding for the Sierra Nevada population 
of the mountain yellow-legged frog. These actions are listed below; 
work on those actions with an asterisk (*) was conducted pursuant to a 
deadline set by a court and all other actions, with the exception of 
the work on a proposed listing for the Miami blue butterfly, were 
pursuant to meeting statutory timelines, i.e., timelines required under 
the Act:
    (1) 90-day petition findings for the following species: New England 
cottontail, greater/eastern sage-grouse, western sage-grouse*, mountain 
quail*, trumpeter swan, Colorado River cutthroat trout, and midvalley 
fairy shrimp*.
    (2) 12-month petition findings for the following species: Western 
gray squirrel*, Queen Charlotte goshawk*, California spotted owl*, 
Kootenai river burbot*, westslope cutthroat trout*, Horkelia 
hendersonii (Henderson's horkelia)*, and Lupinus lepidus var. 
ashlandensis (Mt. Ashland lupine)*.
    (3) Proposed listing determinations for the following species: 
California tiger salamander (rangewide)*, Salt Creek tiger beetle 
(deadline subject to an out-of-court settlement agreement), and Miami 
blue butterfly. We worked on a proposed rule to list the Miami blue 
butterfly as it was a high priority listing action. The Miami blue 
butterfly is restricted to one isolated population on Bahia Honda Key 
in Florida and is threatened by the combined influences of catastrophic 
environmental events, habitat destruction or modification, mosquito 
control activities, potential illegal collection, potential loss of 
genetic heterogeneity, and potential predation. Work on assessing the 
status of the species and preparing a listing rule originally was 
approved for funding and was initiated in FY 2003 because at the time, 
the Region considered that it was an emergency. We later decided not to 
exercise our discretion under section 4(b)(7) to emergency list the 
species (based in part on the existence of a captive-bred population). 
However, because a review of the species had been conducted, and 
because it was a high priority species, continued work on the proposed 
listing was approved.
    (4) Final listing determinations for the following species: Florida 
black bear*, pygmy rabbit, mountain plover*, Rota bridled white-eye*, 
California tiger salamander (Sonoma County)*, slickspot peppergrass*, 
Scott Valley polygonum (with critical habitat), and three Mariana 
Island plants (Nesogenes

[[Page 34661]]

rotensis, Osmoxylon mariannense, and Tabernaemontana rotensis)*.
    (5) Resubmitted petition findings for 30 species (these species are 
identified with the code ``C*'' in Table 1 of the CNOR published in the 
Federal Register (67 FR 40657, June 13, 2002)).
    We have endeavored to make our listing actions as efficient and 
timely as possible, given the requirements of the relevant laws and 
regulations, and constraints relating to workload and personnel. We are 
continually considering ways to streamline processes or achieve 
economies of scale, such as by batching related actions together where 
feasible. Given our limited budget for implementing section 4 of the 
Act, the actions described above collectively constitute expeditious 


    The information provided above amends our finding, published 
January 16, 2003 (68 FR 2283), that listing the Sierra Nevada DPS of 
the mountain yellow-legged frog is warranted but precluded. 
Specifically, the information amends the finding to include information 
pertaining to preclusion and expeditious progress. Thus this amended 
finding fully satisfies the requirements of section 4(b)(3)(B)(iii) of 
the Act. We note also that since publication of our initial warranted 
but precluded finding, we have made resubmitted petition findings 
pursuant to the requirement of section 4(b)(3)(C)(i) of the Act, and 
published these in the Federal Register on May 4, 2004 (69 FR 24875), 
May 11, 2005 (70 FR 24869), and September 12, 2006 (71 FR 53755). In 
each case we have found that the petitioned action is warranted but 
precluded, and our finding has included information demonstrating 
preclusion and expeditious progress.
    We will continue to monitor the status of this species and its 
habitat. Should an emergency situation develop, we will act to provide 
immediate protection, if warranted. We intend that any proposed listing 
action for the Sierra Nevada DPS of the mountain yellow-legged frog 
will be as accurate as possible. Therefore, we will continue to accept 
additional information and comments from all concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning the status of this species.


    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: June 14, 2007.
Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E7-12282 Filed 6-22-07; 8:45 am]