[Federal Register Volume 73, Number 216 (Thursday, November 6, 2008)]
[Proposed Rules]
[Pages 66003-66009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26275]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS R2 ES 2008 0114; 92220-1113-0000; C5]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Delist Cirsium vinaceum (Sacramento Mountains Thistle)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of a status 
review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to remove the threatened Cirsium vinaceum 
(Sacramento Mountains thistle) from the Federal List of Threatened and 
Endangered Plants, under the Endangered Species Act of 1973, as amended 
(Act). We find that the petition presents substantial information 
indicating that delisting of C. vinaceum may be warranted. Therefore, 
with the publication of this notice, we are initiating a 12-month 
status review in response to this petition under section 4(b)(3)(B) of 
the Act to determine if delisting the species is warranted. To ensure 
that the review is comprehensive, we are soliciting data and other 
information regarding C. vinaceum.

DATES: To allow us adequate time to conduct a status review, we request 
that information be submitted on or before December 22, 2008.

ADDRESSES: You may submit information by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: [FWS-R2-ES-2008-0114; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all information 
received on: http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Information 
Solicited section below for more details).

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Office, 
2105 Osuna Road, NE, Albuquerque, New Mexico 87113; telephone 505-346-
2525; facsimile 505-346-2542. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Solicited

    When we make a finding that substantial information exists to 
indicate that listing or delisting a species may be warranted, we are 
required to promptly commence a review of the status of the species. To 
ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting any 
additional information on the status of Cirsium vinaceum from the 
public, other concerned governmental agencies, Native American Tribes, 
the scientific community, industry or environmental entities, or any 
other interested parties.

[[Page 66004]]

We are seeking information on historical and current distribution, 
biology and ecology, ongoing conservation measures for the species or 
its habitat, and threats to the species or its habitat. We also request 
information regarding the adequacy of existing regulatory mechanisms.
    Please note that comments merely stating support or opposition to 
the actions under consideration without providing supporting 
information, although noted, will not be considered in making a 
determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species shall be made ``solely on the basis of the best scientific and 
commercial data available.'' At the conclusion of the status review, we 
will issue the 12-month finding on the petition, as provided in section 
4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.).
    You may submit your information concerning this finding by one of 
the methods listed in the ADDRESSES section. We will not consider 
submissions sent by e-mail or fax or to an address not listed in the 
ADDRESSES section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Information and materials we receive, as well as supporting 
documentation we used in preparing this finding, will be available for 
public inspection on http://www.regulations.gov, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
New Mexico Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

    Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires 
that we make a finding on whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. 
Such findings are based on information contained in the petition, 
supporting information submitted with the petition, and information 
otherwise available in our files at the time we make the finding. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition, and publish our notice of this 
finding promptly in the Federal Register.
    Our 90-day finding under section 4(b)(3)(A) of the Act and Sec.  
424.14(b) of our regulations is limited to a determination of whether 
the information in the petition meets the ``substantial information'' 
threshold. ``Substantial information'' is defined in 50 CFR 424.14(b) 
as ``that amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted.'' 
If we find that substantial information was presented, we are required 
to promptly commence a status review of the species.
    We evaluated the information provided by the petitioner in 
accordance with 50 CFR 424.14(b). Our process for making this 90-day 
finding under section 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our 
regulations is limited to a determination of whether the information in 
the petition meets the ``substantial scientific and commercial 
information'' threshold (as mentioned above).

Species Information

    Cirsium vinaceum is a stout plant, 3.3 to 5.9 feet (ft) (1 to 1.8 
meters (m)) tall. Cirsium vinaceum stems are brown-purple and highly 
branched. The basal leaves are green, 12 to 20 inches (in) (30 to 50 
centimeters (cm)) long, and up to 8 in (20 cm) wide, with ragged edges. 
Cirsium vinaceum is a short-lived perennial. It lives as a rosette (a 
circular arrangement of leaves close to the ground) for one or more 
years, and eventually a stem bolts upward producing flower and seed. 
Flowering, the vehicle for sexual reproduction, occurs only once, from 
July through September, when pink-purple flower heads form at the tips 
of stems. At any given time, flowering adults comprise approximately 10 
percent of the total number of plants (USFS 2003). Seed production 
usually occurs from cross-pollination by native bees, flies, 
butterflies, and hummingbirds, although pollination from another plant 
is not always required for reproduction. Adult C. vinaceum plants die 
after flowering. Cirsium vinaceum is an obligate wetland species that 
requires saturated soils with surface or sub-surface water flow. Waters 
at these sites are rich in calcium carbonate from limestone sources 
that often precipitates out to create large areas of travertine 
(calcium carbonate) deposits, which occasionally become large bluffs or 
hills. Travertine deposits are the most common habitat of the species.
    Cirsium vinaceum presently occurs on both the eastern and western 
slopes of the Sacramento Mountains in south-central New Mexico. The 
species is found primarily on National Forest Service lands of the 
Lincoln National Forest in Otero County, New Mexico (Service 1993, p. 
3). A few occupied sites lie on the extreme southern end of the 
Mescalero Apache Indian Reservation and a few private land inholdings 
within the Lincoln National Forest (Service 1993, p. 3). Within this 
known range, C. vinaceum grows in the mixed-conifer zone, between 7,500 
and 9,500 ft (2,300 and 2,900 m), in limestone substrate.
    Cirsium vinaceum was listed as a threatened species on June 16, 
1987, based on threats from water development, trampling and ground 
disturbance by livestock, recreation, logging, and the invasion of 
exotic plants (52 FR 22933). At the time of listing, it was known from 
20 localities consisting of a total of 10,000 to 15,000 sexually 
reproducing plants (52 FR 22933). This number of plants was greater 
than the 2,000 to 3,000 sexually reproducing plants known at the time 
the species was proposed for listing in 1984 (49 FR 20735). A recovery 
plan for C. vinaceum was finalized on September 27, 1993 (Service 1993, 
pp. 1-23). Critical habitat has not been designated for this species.

Review of the Petition

    On August 13, 2007, we received a petition from the Board of County 
Commissioners of Otero County, New Mexico, to delist Cirsium vinaceum. 
The petitioner cites the following documents pertaining to C. vinaceum: 
A 1984 proposal to determine C. vinaceum to be a threatened species and 
to determine critical habitat (49 FR 20735, May 16, 1984); the June 16, 
1987 final rule to determine C. vinaceum to be a threatened species (52 
FR 22933); the 1993 Sacramento Mountains Thistle (Cirsium vinaceum) 
Recovery Plan; the 2004 original petition to delist the Sacramento 
Mountains thistle submitted by Otero County Commissioner Doug Moore; 
the 2004 Final Environmental Impact Statement--Sacramento, Dry Canyon, 
and Davis Grazing Allotments (Forest Service 2004); the 2005 
Programmatic Biological and Conference Opinion: the Continued 
Implementation of the Land and Resource Management Plans (LRMP) for the 
Eleven National Forests and National Grasslands of the Southwestern 
Region (LRMP Biological Opinion) (USFWS 2005); the 2006 90-

[[Page 66005]]

day finding on a petition to delist the Sacramento Mountains thistle 
(Cirsium vinaceum) and initiation of a 5-year status review (71 FR 
70479, December 5, 2006); the USDA Natural Resources Conservation 
Service web report, ``New Mexico County Level Distribution for Cirsium 
vinaceum'' (web-checked by petitioner February, 2007); and a U.S. 
Forest Service (Forest Service) Draft Map of Known Locations of 
Sacramento Mountains Thistle (Cirsium vinaceum), Sacramento Ranger 
District, Lincoln National Forest (undated). The petitioner clearly 
identifies the petition as a petition and includes the requisite 
information for the petitioner, as required in 50 CFR 424.14(a).
    The petitioner summarizes the natural history of Cirsium vinaceum, 
describes the range and population status from 1984 to 2003, and 
outlines the regulatory history.The petitioner emphasizes that C. 
vinaceum numbers have increased dramatically since the original listing 
and believes that the recovery objectives have been satisfied. 
Comparisons of occupied localities and population numbers are drawn 
from the 1984 petition to list C. vinaceum (49 FR 20735, May 16, 1984), 
the June 16, 1987 final rule to list C. vinaceum as threatened (52 FR 
22933), the 1993 recovery plan for C. vinaceum, and the 2006 90-day 
finding on a petition to delist C. vinaceum (71 FR 70479, December 5, 
2006). These documents give the locality and population numbers as: 14 
localities with 2,000 to 3,000 total individuals in 1984; 20 localities 
with a total of 10,000 to 15,000 reproductive individuals in 1987; 62 
localities with 49,000 total plants in 1993; and 86 localities with an 
estimated 350,000 to 400,000 total C. vinaceum plants in 2003. 
Population data after 2003 are not included in the petition. The 
petitioner also discusses possibilities of the range of C. vinaceum 
extending northward into Lincoln County as suggested by a National 
Resources Conservation Service web site general map that highlights 
Lincoln County as well as Otero County for the distribution of C. 
vinaceum (http://plants.usda.gov/java/county?state_name=New%20Mexico&statefips=35&symbol=CIVI4, from 2007), and southward, 
based on a large known population located toward the southern tip of 
the Sacramento Ranger District of the Lincoln National Forest.
    The petitioner claims that threats to Cirsium vinaceum have been 
``either completely eliminated or sufficiently reduced so that the 
long-term survival of C. vinaceum is ensured.'' Each of the five 
listing factors is addressed by the petitioner, who analyzes threats 
given in the original listing of 1987 and believes that they have been 
minimized. The petitioner states that delisting is warranted based on 
the sufficient recovery of the species and the assertion that the 
initial listing was done in error.
    In making this 90-day finding, we evaluated whether information on 
the changes in the status and threats to Cirsium vinaceum, as presented 
in the petition, and clarified by information readily available in our 
files at the time of the petition review, is substantial, thereby 
indicating that the petitioned action may be warranted. Our evaluation 
of this information is presented below.

Threats Analysis

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. We evaluate whether 
that species may be endangered or threatened because of one or more of 
the five factors described in section 4(a)(1) of the Act. We must 
consider these same five factors in delisting a species. We may delist 
a species only if the best scientific and commercial data available 
indicate that the species no longer meets the definition of threatened 
or endangered under the Act. Delisting may be warranted as a result of: 
(1) Extinction, (2) recovery, and/or (3) a determination that the 
original data used for classification of the species as endangered or 
threatened were in error.
    Under section 4 of the Act, we may list a species, subspecies, or 
Distinct Population Segment of vertebrate taxa on the basis of any of 
the following five factors: (A) Present or threatened destruction, 
modification, or curtailment of habitat or range; (B) overutilization 
for commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) inadequacy of existing regulatory mechanisms; 
or (E) other natural or manmade factors affecting its continued 
existence. We also apply these same factors in determining whether the 
threats have been sufficiently reduced or eliminated to justify 
delisting. This 90-day finding is not a status assessment and does not 
constitute a status review under the Act.

A. Present or Threatened Destruction, Modification, or Curtailment of 
the Species' Habitat or Range

    The June 16, 1987, listing rule (52 FR 22933) and subsequent 
recovery plan (Service 1993, pp. 4-6) list habitat destruction or 
alteration by domestic livestock, water development (e.g., withdrawal 
from springs, reservoir construction), trampling by recreationists, 
road construction, logging, and competition with exotic plants as 
threats to the species' habitat and range. Cirsium vinaceum also has 
been impacted by off-road vehicles, motorcycles, road maintenance, and 
other activities (Service 1993, pp. 4-6; Forest Service 2004, pp. 625-
629).
Range and Population
    The petitioner states that the number of localities and abundance 
of Cirsium vinaceum have increased since it was listed. As discussed 
above, the petitioner notes that the known distribution of C. vinaceum 
has grown from 20 localities at the time of listing in 1987 to 86 
discovered localities by 2003. As noted in the Species Information 
section above, we now know that flowering adults comprise approximately 
10 percent of the total number of plants (USFS 2003). This means that 
the 350,000 to 400,000 individuals reported in 2003 by the petitioner 
equate to approximately 35,000 to 40,000 flowering plants. Therefore, 
the estimated number of flowering plants increased from 10,000 to 
15,000 in 1987 to 35,000 to 40,000 by 2003.
    Our records indicate that the numbers of Cirsium vinaceum 
localities and individuals presented in the petition through 2003 are 
accurate. Much of the increase in individual plants is attributable to 
more intensive survey efforts since 1984 which also resulted in the 
discovery of several new areas of occupied habitat. There is no doubt 
that the numbers of documented C. vinaceum have grown between the years 
of 1984 and 2003, the most recent data presented in the petition.
    A method to estimate the total number of plants (flowering 
individuals plus rosette individuals that have not flowered yet) was 
devised, based on a 1989 count of all rosettes in 4 Circium vinaceum 
localities, which found that the number of rosettes (non-reproductive 
for that year, but potentially reproductive the following year) was 
approximately 10 times the number of reproductive plants in the field 
(Thompson 1991). Using this method, the total number of individual 
plants has been calculated by multiplying the number of flowering 
plants by 10 to obtain the number of both non-reproductive rosettes and 
reproductive individuals. This would amount to an increase from 100,000 
to 150,000 total individuals in 1987 to 350,000 to 400,000 total 
individuals in 2003 (Service 2005, p. 712). In terms of range size, one 
(Fresnal Canyon) of the

[[Page 66006]]

new thistle locations occurs outside the 155-square-mile area that was 
proposed but never finally designated as critical habitat in the 1984 
listing proposal (May 16, 1984, 49 FR 20735). Thus, the overall 
distribution of the species has increased (Service 2005, p. 698; 
Sivinski 2007, p. 1). We agree with the petitioner that the numbers of 
localities and individuals, and the range of the species appears to 
have increased.
Livestock Grazing
    The petitioner claims that the threat of livestock grazing 
activities has been adequately reduced as a result of herding 
practices, exclosures (fences to exclude livestock), and livestock 
inaccessibility due to rough terrain. In addition, the petitioner 
asserts that the use of exclosures, herding efforts, and natural 
inaccessibility collectively have satisfied one of the major actions of 
the recovery plan, which was to ``develop habitat management plans to 
alleviate threats to the species and ensure permanent protection of at 
least 75 percent of the known occupied habitats according to steps 
outlined in the plans.''
    To support this conclusion, the petitioner cites the 1993 recovery 
plan, which mentions that grazing permittees have exerted more effort 
toward herding, and that many seep and spring habitats are excluded 
from frequent livestock use by the steepness of travertine ledges 
(Service 1993). The petitioner further cites the recovery plan and 
concludes that grazing impacts to the remaining habitats have been 
sufficiently mitigated as a result of exclosure fences constructed 
around almost half of all occupied Cirsium vinaceum sites recorded for 
2003. According to the petition, which cites the Forest Service's 2003 
Biological Assessment for the Sacramento Grazing Allotment Management 
Plan (Forest Service 2003), exclosures have increased C. vinaceum 
numbers for those fenced populations. The petitioner states that the 
recovered status of the species will be maintained by the installation 
of additional exclosure fences in the future, as noted in a final 
environmental impact statement covering the Sacramento grazing 
allotment (Forest Service 2004a).
    At the time of listing, the presence of livestock was recognized as 
being detrimental to Cirsium vinaceum due to trampling and ground 
disturbance (52 FR 22933, June 16, 1987). Evidence of damage by 
livestock was based on the notable decrease in numbers of individuals 
in Lucas Canyon when exposed to excessive grazing prior to listing, and 
on the substantial increase in C. vinaceum at Bluff Springs once the 
area was fenced (52 FR 22933). Our current understanding of livestock 
impacts involves the susceptibility of the species to trampling of 
vulnerable seedlings, rosettes, and flowering stalks, as well as 
damaging of travertine and soft substrates in occupied and potential 
habitat (Thomson 1991, pp. 44-52; Service 2004, pp. 62-63). Cirsium 
vinaceum can recover within a few weeks after heavy grazing is reduced 
or eliminated, and can continue to persist with light grazing if only 
the foliage and not the central stem is grazed (Forest Service 2003, 
pp. 53, 59; Service 2005, p. 697). But livestock consumption of 
flowering stalks and the leaves of rosettes can cause the loss of the 
entire reproductive output of the plant (Forest Service 2003, pp. 53, 
59; Service 2005, p. 697). Thus, in areas that are grazed, C. vinaceum 
experiences direct impacts from livestock trampling and consumption, as 
well as indirect impacts from ground disturbance, substrate 
destruction, and rechannelling of water flow (Forest Service 2003, pp. 
43-56; Service 2005, p. 697).
    Information in our files indicates that fencing around C. vinaceum 
individuals to prevent livestock access has produced an increase in 
plants in those localities. Currently, exclosures cover approximately 
290 acres (ac) (120 hectares (ha)), protecting about half of the 
occupied habitat from the negative impacts associated with livestock 
use (Service 2005, p. 698). We agree with the petitioners that 
exclosures have protected individual plants and habitat from livestock 
access and destruction.
Habitat Protection
    The petitioner states that the objective of the recovery plan to 
protect 75 percent of known occupied habitat has been met through the 
success of protecting Cirsium vinaceum from grazing through building 
exclosure fences. A portion of this protection also is afforded by 
topography, making terrain inaccessible to cattle, notes the 
petitioner. According to the petitioner, the recovery criterion has 
been exceeded based on a comparison of known population areas and C. 
vinaceum numbers between 1987 and 2003. Numbers of an estimated 10,000 
to 15,000 plants from 20 known localities in 1987 are contrasted with 
data from 2003 for 350,000 to 400,000 plants. The petitioner links this 
increase to the fencing of approximately 290 ac (120 ha) of C. vinaceum 
habitat and concludes that the area fenced must have protected at least 
75 percent of the known occupied habitats.
    Information in our files indicates that the petitioner's claim that 
the number of populations and range of Cirsium vinaceum are greater as 
of the date when the petition was written than what was known in 1987 
is reliable and accurate. A delisting criterion in the recovery plan 
involves the permanent protection of at least 75 percent of the known 
occupied habitat (Service 1993, p. 9). Using the most current data 
presented by the petitioner, the achievement of 75 percent permanent 
protection for the known C. vinaceum occupied habitat area, number of 
localities, or number of plants would mean that 58 of an estimated 77 
acres of occupied habitat, 64 of 86 occupied localities, or 262,500 to 
300,000 of 350,000 to 400,000 plants would have to be permanently 
protected. Although the information presented by the petitioner does 
not indicate that protection of 75 percent of known occupied habitat 
has been achieved, it does indicate that the amount of habitat in 
protected status has increased and that the extent of the threat of 
disruption or modification of habitat may be reduced.
Water Accessibility
    The petitioner maintains that threats of habitat destruction from 
water development have been reduced adequately by the Forest Service's 
special-use water permit process, new State legislation, and the 
implementation of conservation actions in the form of habitat 
improvement projects recommended in the recovery plan.
    The petitioner reports that New Mexico adopted in-stream flow 
legislation in 2005. From our records, the State of New Mexico enacted 
in-stream flow legislation in 2005 and then amended it in 2007. This 
legislation establishes a water reserve based on water donation, 
purchase, or lease from willing sellers to benefit species that are 
rare, sensitive, or have small populations (N.M. Stat. Ann. Sec.  72-
14-3.3). Use of the water is limited to aquatic or obligate riparian 
species within a river reach or ground water basin (N.M. Stat. Ann. 
Sec.  72-14-3.3). The new State statute does provide a mechanism to 
protect lower drainage habitats of Cirsium vinaceum from drying if a 
strategic water reserve is created, although the legislation does not 
prevent the diversion of water from isolated montane wetlands or 
headwater springs, where C. vinaceum also occurs, and does not directly 
establish a ``strategic water reserve'' for the thistle, (N.M. Stat. 
Ann Sec.  72-14-3.3). Nevertheless, the statute's goals of providing 
water to obligate riparian

[[Page 66007]]

listed species, by creating a ``strategic water reserve'', and avoiding 
the listing of additional species might be applied to benefit C. 
vinaceum (N.M. Stat. Ann Sec.  72-14-3.3).
    The petitioner states that through the issuance of special-use 
permits, the Forest Service can control the location of a water 
diversion point in relation to Cirsium vinaceum locations near springs. 
According to the petitioner, the recovery plan recommends water 
diversion for spring development only at locations downstream of 
suitable habitat in order to provide necessary water to the species and 
prevent habitat disturbance (Service 1993). Citing the LRMP Biological 
Opinion (Service 2005), the petitioner claims that the Forest Service 
can specify the location of water intake points in special use permits 
to protect C. vinaceum from habitat degradation.
    The petitioner believes that water conservation to benefit Cirsium 
vinaceum has been implemented by the Forest Service. Citing the LRMP 
Biological Opinion (Service 2005), the petitioner describes a riparian 
improvement project in 2001-02 that supplied former occupied habitat 
with additional water by allowing drainage under roads in Water Canyon 
and the Rio Penasco. The petitioner maintains that this project 
increased water availability to plants, promoted establishment and 
abundance of the species, and helped to conserve C. vinaceum.
    At the time of listing, the Service was concerned about the impacts 
of water development or associated habitat deterioration to Cirsium 
vinaceum individuals. The listing notice mentioned that an unauthorized 
1,900 ft (579 m) long pipeline and cement spring box had been 
constructed at a C. vinaceum site, which negatively impacted nearby 
plants (52 FR 22933, June 16, 1987). These structures impeded water 
flow to the plant and provided evidence of the sensitivity of C. 
vinaceum to diminishment of its water supply. Just prior to the time of 
listing, the Bureau of Reclamation had conducted studies of three 
potential dam and reservoir sites to be used for industrial and 
domestic water supply in the region (52 FR 22933). Developing any of 
these water sites was believed to pose a significant threat to C. 
vinaceum. To emphasize the species' requirement of wetland habitat, the 
Service identified the adoption of in-stream flow legislation and 
acquisition of water rights as the first delisting criterion for C. 
vinaceum in the recovery plan (Service 1993, p. 9).
    As an obligate wetland plant, Cirsium vinaceum continues to depend 
on water availability for its survival. Although the dam and reservoir 
projects mentioned in the listing notice were not implemented, 
information from our files indicates that C. vinaceum currently is 
subjected to water loss from natural drought conditions; other factors 
that can cause a spring to go dry (e.g., rerouting of underground 
channels); or human impacts, such as spring development or loss of 
water flow to an occupied site through diversion by roads or trails 
(Service 1993, pp. 4-5; Service 2004, p. 35). Currently, the region has 
been under drought conditions since 1999. The length and severity of 
the drought, and therefore its ultimate impact on C. vinaceum, are not 
known (Piechota et. al. 2004, pp. 303-305). It is likely that the 
seasonal distribution of yearly precipitation also plays a role in 
water availability for C. vinaceum. Spring desiccation at occupied 
sites has led to a reduction in the number of individual plants, and in 
some cases, caused a loss of all plants at previously occupied sites 
(Forest Service 2003, pp. 35-36). It is unclear how the springs in the 
Sacramento Mountains would respond to a combination of extended drought 
and an increase in the level of water withdrawals (e.g., diversions, 
groundwater pumping).
    In summary, the new State legislation provides a mechanism to 
protect lower drainage habitats of Cirsium vinaceum from drying if a 
strategic water reserve is created (N.M. Stat. Ann Sec.  72-14-3.3). 
Moreover, the statute's goals of providing water to obligate riparian 
species by creating a ``strategic water reserve'' might be applied to 
benefit C. vinaceum (N.M. Stat. Ann Sec.  72-14-3.3). Our records 
indicate that in the State of New Mexico, the land owner reserves the 
right to determine the point of water diversion (United States v. New 
Mexico, 438 U.S. 696 (1978)). For populations located on the Lincoln 
National Forest, the Forest Service has the ability to designate the 
intake point for water diversion during the special use permitting 
process in a manner that protects C. vinaceum from desiccation. 
Information from our files supports the petitioner's claim that the 
Water Canyon and the Rio Penasco road improvement project conserved 
water and C. vinaceum by retaining water and diverting it toward 
suitable habitat (Service 2005). This retention and influx of water 
into suitable habitat enabled C. vinaceum reoccupation of these sites 
(Service 2005).
Road Construction, Logging, and Recreation
    The petitioner cites information in the recovery plan (Service 
1993) to assert that road construction, logging operations, and 
recreational activities do not threaten the Cirsium vinaceum or its 
habitat at this time. Specifically, the petitioner claims that the 
Forest Service's policy of maintaining a 200-ft (61-m) buffer region 
around populations protects C. vinaceum during road construction, 
logging operations, and trail planning (Service 1993). The petition 
also references a ``no entry area condition on a recent timber sale'' 
(52 FR 22933, June 16, 1987), in response to minimizing logging threats 
to C. vinaceum. The petitioner provides a quote from the previous 90-
day finding highlighting the Service's acknowledgement that logging 
``does not currently threaten the thistle'' (71 FR 70479, December 5, 
2006). In addressing recreation, the petitioner refers to the recovery 
plan's mention of a fence that was constructed by the Forest Service 
prior to 1993 around Bluff Springs and its fragile travertine substrate 
to re-route foot trails (Service 1993). The Biological Assessment for 
the Sacramento Grazing Allotment (Forest Service 2003) also is 
referenced by the petitioner to support the effectiveness of the Bluff 
Springs exclosure by noting that C. vinaceum numbers have increased 
since the fence was constructed.
    At the time of listing, there was concern that ground disturbance 
from road construction and logging could impact Cirsium vinaceum 
habitats if planning for logging operations did not consider the 
species (52 FR 22933). In addition, Bluff Springs, an area containing 
C. vinaceum, was also vulnerable to overuse by recreationists (52 FR 
22933, June 16, 1987). The listing rule affirms that ``overuse for 
recreation or any human-caused deterioration of the area around the 
springs could harm the species'' (52 FR 22933). At present, our 
information indicates that the Forest Service applies a minimum 200-ft 
(61-m) protective buffer around C. vinaceum occurrences during forest 
management activities (Service 2002, p. 3; Service 2004, pp. 4-13). The 
exclosure constructed around Bluff Springs has served to dissuade human 
use and divert foot traffic from sensitive substrates at Bluff Springs, 
with a slowly responding increase in C. vinaceum numbers at that site 
as of 2007 (Forest Service 2003, p. 59; 2007 database). Maintenance of 
the buffers and exclosures appears to be assisting in the recovery of 
C. vinaceum.

[[Page 66008]]

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The petitioner provides minimal information addressing this factor, 
reiterating that this factor has not been an issue for Cirsium 
vinaceum. The original listing did not cite this factor as significant 
and a review of information in our files does not suggest that 
overutilization for commercial, recreational, scientific or educational 
purposes currently threatens C. vinaceum. We agree that this issue may 
not be applicable to the species at this time.

C. Disease or Predation

    Disease is mentioned as being an insignificant threat to Cirsium 
vinaceum in the conclusion of the petition. No information is provided 
by the petitioner regarding the effects of disease on the species. At 
the time of listing, there were no known diseases to C. vinaceum, and 
disease was not mentioned in the listing petition. Currently, we have 
no information in our files suggesting that disease may be a 
significant threat to the species.
    The petitioner states that wildlife and livestock predation or 
consumption of Cirsium vinaceum is not a known threat. The 2004 
Biological Assessment for the Southwestern Region is referenced as 
support for the assertion that wildlife predation is negligible and 
cattle are the primary grazers of C. vinaceum (Forest Service 2004). 
The petition cites the recovery plan to support its conclusion that 
threats from grazing have been alleviated by exclosures, inaccessible 
topography, and herding practices (Service 1993). Based on a Forest 
Service herbivory (plant consumption) monitoring report, the petitioner 
claims that livestock consumption of the plants is no longer a 
substantial threat because livestock herbivory during 1992 led to 
increases in C. vinaceum vigor and population growth in 1993 (Forest 
Service 1994). The petitioner further reports that there was no 
evidence of negative effects to C. vinaceum from livestock grazing 
during the years of 1995, 1998, and 2001 (Forest Service 2004). The 
petitioner suggests that ``a certain amount of herbivory may promote C. 
vinaceum reproduction by causing seeds to shed and by dispersing the 
seeds'' (p. 27 of the petition) and concludes that herbivory by 
livestock is not a significant threat to C. vinaceum.
    At the time of listing, herbivory by livestock was not mentioned as 
a threat, but trampling of Cirsium vinaceum and ground disturbance by 
livestock were understood to be threats (52 FR 22933, June 16, 1987) 
(see additional discussion in Factor A above). However, by the time of 
the recovery plan's publication date, research verified that livestock 
consumption of C. vinaceum caused a reduction in plant rosette size and 
reproductive output (Service 1993, p. 5). Some thistle localities are 
protected from livestock access by use of exclosure fencing.
    Information in our files indicates that a complex relationship 
exists among Cirsium vinaceum, precipitation, and livestock herbivory; 
however, overall, plants in grazed areas do more poorly than C. 
vinaceum plants protected from livestock access (Forest Service 2003, 
pp. 44-51). Still, our data affirm an increase in C. vinaceum 
abundance, detected during the early and mid 1990s for the Forest 
Service's herbivory report.

D. Existing Regulatory Mechanisms

    The petitioner provides documentation of protective regulations in 
the form of Forest Service regulations, the Lacey Act, New Mexico State 
law, and a potential post-delisting monitoring process to claim that 
existing regulations are sufficient to conserve Cirsium vinaceum if it 
becomes delisted. Several regulations under Forest Service jurisdiction 
are discussed by the petitioner. A Federal regulation protects 
threatened and endangered species against take in National Forests, 
which prohibits the damage or removal of plants, including C. vinaceum 
(36 CFR 261.9). The Forest Service's issuance of special-use permits to 
designate points of water diversion in the Lincoln National Forest is 
addressed as a means to protect C. vinaceum from spring development. 
Based on the recovery plan, the petitioner mentions that a permit is 
required to collect plants in C. vinaceum localities (Service 1993). 
The petitioner presents two other species that have received protection 
from the Sensitive Species program (McKittrick pennyroyal (Hedeoma 
apiculatum) and Tumamoc globeberry (Tumamoca macdougalii)), and claims 
that this program provides an additional regulatory mechanism for C. 
vinaceum protection (58 FR 49244; 58 FR 33562). The petitioner believes 
that the 200-ft (61-m) buffer around roads, trails, and timber 
operations described in the recovery plan (Service 1993), along with 
the standards and guidelines given in the LRMP Biological Opinion 
(Service 2005), offer direction for actions in the Lincoln National 
Forest, which further protect C. vinaceum.
    The petitioner also claims that the Lacey Act provides adequate 
protection to Cirsium vinaceum. According to the petition, the Lacey 
Act makes importing, exporting, transporting, selling, receiving, 
acquiring, or purchasing C. vinaceum unlawful within or outside of 
State, National, and international boundaries (16 U.S.C. 3372; Service 
1993, p. 6). At the State level, the petitioner asserts that C. 
vinaceum receives protection from the New Mexico State Endangered Plant 
Species Act. The New Mexico State Endangered Plant Species Act 
prohibits the take, damage, or sale of listed plants, and requires 
permits for scientific study (N.M. Stat. Ann. Sec.  19.21.2). The 
recent in-stream flow legislation is mentioned by the petitioner as 
another protective regulation for the species in terms of water 
provisioning (N.M. Stat. Ann Sec.  72-14-3.3). Finally, the petitioner 
believes that the post-delisting monitoring plan will protect the 
species because any indication of becoming extinct would trigger the 
emergency listing process of the Act that would re-list C. vinaceum (16 
U.S.C. 1533(g)).
    At the time of listing, only the Federal regulations at 36 CFR 
261.9 prohibiting take of plants from National Forests were in 
existence (52 FR 22933, June 16, 1987). The other regulations had not 
been enacted. Currently, under the Act, damage, destruction, removal, 
possession, transport, or sale of Cirsium vinaceum is prohibited on 
Federal lands (16 U.S.C. 1531 et seq.). On State lands, the Act serves 
to prohibit moving, digging up, cutting, damaging, destroying, 
transporting, or selling C. vinaceum, including instances where 
trespassing is involved (16 U.S.C. 1531 et seq.). Permits may be 
authorized under specific instances to engage in otherwise lawful 
activities with C. vinaceum.
    Information in our files, along with information from the petition, 
supports the existence of the mentioned regulatory mechanisms for 
Cirsium vinaceum as a listed species. As a delisted species, C. 
vinaceum individuals would continue to be protected by the Lacey Act, 
if involved in collection, transport, or commerce, as well as the New 
Mexico State Endangered Plant Species Act, if the plant retains its 
state status as endangered; however, these laws do not protect C. 
vinaceum habitat. If delisted, C. vinaceum could benefit from 
regulatory protection as a Forest Service sensitive species. We affirm 
that C. vinaceum would be carefully monitored for at least 5 years 
after delisting to ensure that the species would not be at risk of 
extinction during that time. If delisted, the post-delisting monitoring 
plan would likely include thresholds indicating when a status review 
was warranted.

[[Page 66009]]

E. Other Factors Affecting the Species

    Citing information from the recovery plan and the LRMP Biological 
Opinion (Service 2005), the petitioner discusses a lack of evidence 
indicating that exotic teasel (Dipsacus sylvestris) and musk thistle 
(Carduus nutans) are posing threats to C. vinaceum via competition. The 
petitioner acknowledges the ``potential for C. vinaceum to become 
excluded from some of its drier habitats by the invasive teasel,'' 
which the petitioner quotes from the recovery plan (Service 1993). 
However, the petitioner also claims that evidence concerning 
competitive impacts to C. vinaceum from interactions with bull thistle 
(Cirsium vulgare), Canada thistle (Cirsium arvense), and poison hemlock 
(Conium maculatum) has not been presented. Thus, the petitioner 
concludes that competition from invasive plants is not an immediate 
threat to C. vinaceum.
    At the time of listing, competition with introduced teasel and musk 
thistle had reduced or eliminated populations of Cirsium vinaceum at 
sites where it had formerly grown or where habitat was still suitable 
but where invasive plant species were present (52 FR 22933, June 16, 
1987). Information in our files indicates that exotic teasel and musk 
thistle occurrences are being monitored and are found at approximately 
one-third of the C. vinaceum localities (2007 database). At this time 
we have no information suggesting that competition among C. vinaceum 
and exotic plants is a significant threat. Similarly, we have no 
information establishing bull thistle, Canada thistle, and poison 
hemlock as immediate threats to C. vinaceum. Information in our files 
suggests the musk thistle may be serving as a vector for Rhinocyllus 
conicus, the exotic seed head weevil (Sivinski 2007, pp. 6, 13; Gardner 
and Thompson 2008, p. 1), although future interactions among the musk 
thistle, weevil, and C. vinaceum remain unclear.

Finding

    We have reviewed the delisting petition and the supporting 
documents, as well as other information in our files. We find that the 
delisting petition and other information in our files present 
substantial information that threats to Cirsium vinaceum may have been 
reduced and that delisting C. vinaceum may be warranted, and we are 
initiating a status review. Our process for making this 90-day finding 
under section 4(b)(3)(A) of the Act is limited to a determination of 
whether the information in the petition presents ``substantial 
scientific and commercial information,'' which is interpreted in our 
regulations as ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)).
    The petitioner provides a detailed petition that reviews much of 
the knowledge of Cirsium vinaceum, including the natural history, 
range, and threats. The documents referenced provide substantial 
information indicating that C. vinaceum is more widely distributed 
throughout several canyon drainages in the Sacramento Mountains area 
than recorded at the time of listing. The 2003 population data of C. 
vinaceum, the most recent survey data analyzed by the petitioner, 
indicates that the number of individuals has increased since the time 
of listing in 1987. Additionally, substantial documentation of the 
reduction of threats from potential water development, road 
construction, logging operations, and recreational activities is 
presented. The petitioner also provides substantial information 
indicating that additional regulatory mechanisms may now exist that 
could limit damage to individuals and the development of water in 
riparian areas.
    It is important to note that the ``substantial information'' 
standard for a 90-day finding is in contrast to the Act's ``best 
scientific and commercial data'' standard that applies to a 12-month 
finding as to whether a petitioned action is warranted. A 90-day 
finding is not a status assessment of the species and does not 
constitute a status review under the Act. Our final determination as to 
whether a petitioned action is warranted is not made until we have 
completed a thorough status review of the species, which is conducted 
following a substantial 90-day finding. Because the Act's standards for 
90-day and 12-month findings are different, as described above, a 
substantial 90-day finding does not necessarily mean that the 12-month 
finding will be warranted.

References Cited

    A complete list of all references cited in this notice is available 
upon request from the New Mexico Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this rule are the New Mexico Ecological 
Services Field Office staff (see FOR FURTHER INFORMATION CONTACT).

Authority

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

    Dated: October 28, 2008.
 Kenneth Stansell,
Acting Director, Fish and Wildlife Service.
 [FR Doc. E8-26275 Filed 11-5-08; 8:45 am]
BILLING CODE 4310-55-P