[Federal Register Volume 74, Number 174 (Thursday, September 10, 2009)]
[Proposed Rules]
[Pages 46542-46547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21755]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2009-0060]
[92210-1111-0000-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition to List Cirsium wrightii (Wright's marsh thistle) as 
Threatened or Endangered with Critical Habitat

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 list Cirsium wrightii (Wright's marsh 
thistle) as threatened or endangered under the Endangered Species Act 
of 1973, as amended, and designate critical habitat. Following a review 
of the petition, we find the petition provides substantial scientific 
or commercial information indicating that listing this species may be 
warranted. Therefore, with the publication of this notice, we are 
initiating a status review of the species to determine if the 
petitioned action is warranted. To ensure that the status review is 
comprehensive, we request scientific and commercial data regarding 
Cirsium wrightii. At the conclusion of this review, we will issue a 12-
month finding to determine if the petitioned action is warranted. We 
will make a determination on critical habitat if and when we initiate a 
listing action for this species.

DATES: We made the finding announced in this document on September 10, 
2009. To allow us adequate time to conduct this review, we request that 
we receive information on or before November 9, 2009.

ADDRESSES: You may submit information by one of the following methods:
    <bullet<ls-thn-eq> Federal eRulemaking Portal: http://www.regulations.gov. Search for docket FWS-R2-ES-2009-0060 and then 
follow the instructions for submitting comments.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R2-ES-2009-0060; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    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, 
New Mexico Ecological Services Office, 2105 Osuna NE, Albuquerque, NM 
87113; by telephone (505-346-2525) or by facsimile (505-346-2542). 
Persons who use a telecommunications device for the deaf (TTD) may call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Request for Information

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are

[[Page 46543]]

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 request information 
on the status of Cirsium wrightii. We request information from the 
public, other concerned governmental agencies, Native American Tribes, 
the scientific community, industry, or any other interested parties 
concerning the status of C. wrightii. We are seeking information 
regarding:
    (1) The historical and current status and distribution of the 
Wright's marsh thistle, its biology and ecology, and ongoing 
conservation measures for the species and its habitat; and
    (2) Information relevant to the factors that are the basis for 
making a listing determination for a species under section 4(a) of the 
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of the species' habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing or regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence and threats to the species or its habitat.
    If we determine that listing Cirsium wrightii is warranted, it is 
our intent to propose critical habitat to the maximum extent prudent 
and determinable at the time we would propose to list the species. 
Therefore, with regard to areas within the geographical range currently 
occupied by C. wrightii, we also request data and information on what 
may constitute physical or biological features essential to the 
conservation of the species, where these features are currently found, 
and whether any of these features may require special management 
considerations or protection. In addition, we request data and 
information regarding whether there are areas outside the geographical 
area occupied by C. wrightii that are essential to the conservation of 
the species. Please provide specific comments and information as to 
what, if any, critical habitat you think we should propose for 
designation if the species is proposed for listing, and why that 
proposed habitat meets the requirements of the Act.
    We will base our 12-month finding on a review of the best 
scientific and commercial information available, including information 
we receive during this public comment period. Please note that comments 
merely stating support or opposition to the action 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 must be made ``solely on the basis of the best 
scientific and commercial data available.'' Based on the status review, 
we will issue a 12-month finding on the petitioned action, as provided 
in section 4(b)(3)(B) of the Act.
    You may submit your information concerning this finding by one of 
the methods 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 website. 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 personal identifying 
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 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. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files at 
the time we make the determination. 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 standard for substantial information within the Code of Federal 
Regulations (CFR) with regard to a 90-day petition finding is ``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)). If we find that substantial information was presented, we 
are required to promptly commence a review of the status of the 
species.
    In making this 90-day finding, we based our decision on information 
provided by the petitioner, as well as information available in our 
files and on the Internet that was directly relevant to the information 
raised in the petition at the time we received the petition. We 
evaluated that information 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 Sec. 424.14(b) of our regulations is limited to a determination 
of whether the information contained in the petition meets the 
``substantial information'' threshold.

Petition

    On October 15, 2008 we received a petition from the WildEarth 
Guardians, dated October 9, 2008, requesting that we list Cirsium 
wrightii (Wright's marsh thistle) as threatened or endangered under the 
Act. Additionally, the petitioner requested that critical habitat be 
designated concurrent with listing of C. wrightii. The petition clearly 
identified itself as such and included the requisite identification 
information for the petitioners, as required in 50 CFR 424.14(a). In a 
November 26, 2008, letter to the petitioner, we responded that we had 
reviewed the petition and determined that an emergency listing was not 
necessary. We also stated that, to the maximum extent practicable, we 
would address their petition within 90 days.
    The petition asserted that water diversion, habitat loss and 
degradation through current livestock grazing, inadequate regulatory 
mechanisms, weed control, non-native species, drought, and climate 
change threaten C. wrightii. During our review of the petition, we 
found that the majority of information cited in the petition was not 
readily available to us. Therefore, on December 18, 2008, we requested 
that the petitioner provide references. On February 13, 2009, the 
petitioner provided additional references.

Previous Federal Actions

    There have been no previous Federal actions concerning this 
species.

Species Information

    Cirsium wrightii is a wetland obligate species that was originally 
collected in 1851 at San Bernardino Cienaga, Cochise County, Arizona 
(Gray 1853, p. 101; Smithsonian 1849, p. 1).

[[Page 46544]]

Historically, the species was found in Arizona; New Mexico; and 
Chihuahua, Mexico (Gray 1853, p. 101; Coulter 1891, p. 244; Kearney and 
Peebles 1951, p. 952; Correll and Johnston 1970, p. 1719; Service 1995, 
p. 1). An occurrence of the species in western Texas has been verified 
from a few plants in Presidio County; however, most specimens from 
Texas have recently been identified as Cirsium texanum (Texas thistle), 
rather than C. wrightii (Sivinski 1994a, p. 1; 1996, p. 2; 2006, p. 1; 
Worthington 2002a, p. 4). This species is easily confused in herbarium 
collections with C. wrightii (Sivinski 1994a, p. 1; 1996, p. 2; 2006, 
p. 1; Worthington 2002a, p. 4). In the field, C. wrightii differs from 
C. texanum in being a wetland obligate (almost always occurs in 
wetlands) with thick succulent leaves (New Mexico Rare Plant Technical 
Council (NMRPTC) 2006, p. 1).
    Cirsium wrightii is a biennial (a plant completing development in 2 
years, flowering its second year) or a weak monocarpic perennial (a 
plant that flowers, sets seed, then dies) in the sunflower family 
(Asteraceae). The plant is prickly with short black spines and a 0.9-
to-2.4-meter (m) (3-to-8-foot (ft)) single stalk covered with succulent 
leaves (Sivinski 1996, p. 1; Arizona Game and Fish Department (AGFD) 
2001, p. 1). Numerous slender flowering branches emerge from the stalk, 
starting about one-third up the length of the plant. Branches are 
terminated by one or a few small flowering heads, which have numerous 
slender phyllaries (a modified leaf associated with the flower) 
(Sivinski 1996, p. 1). Flowers are white to pale pink in areas of the 
Sacramento Mountains, but are vivid pink in the Santa Rosa locality 
(Sivinski 1996, p. 1). The species occurs in wet, alkaline soils in 
spring seeps and marshy edges of streams and ponds between 1,130 and 
2,600 m (3,450 and 8,500 ft) in elevation (NMRPTC 2006, p. 1; Sivinski 
1996, p. 1).
    In the New Mexico portion of the species' range, Cirsium wrightii 
appears to be an obligate of seeps, springs, and wetlands (NMRPTC 2006; 
Sivinski 1996; Service 1998; Worthington 2002a, p. 2). Plants commonly 
found in areas inhabited by this species include Scirpus spp. 
(bulrush), Salix spp. (willow), Baccharis glutinosa (seepwillow), 
Helianthus paradoxus (Pecos sunflower), Juncus spp. (rush), and Typha 
spp. (cattail) (New Mexico Botanist 2004, p. 2; Sivinski 1996, pp. 2-5; 
Worthington 2002a, pp 1-2).
    The petition and information in our files indicate that Cirsium 
wrightii populations may be declining. The species is believed to be 
extant in New Mexico; however, it is unclear whether the species has 
been extirpated from Arizona, Texas, and Mexico (Worthington 2002a, p. 
4).
    In New Mexico, C. wrightii is known from the Pecos River Valley and 
the west slope of the Sacramento Mountains (Sivinski 1996, p. 2), in 
Chavez, Guadalupe, Otero, and Socorro Counties, New Mexico (Bridge 
2001, p. 1; New Mexico Botanist 2004, p. 2; NMRPTC 2006, p. 1; Sivinski 
1994, p. 1; 2005, p. 1; Service 1998, p. 1; Worthington 2002, p. 1; 
2002a, pp. 1-3). Known extant populations are widely disjunct, 
sometimes separated by more than 200 miles (322 km). Populations in the 
City of Roswell, Chaves County, and Lake Valley, Sierra County, New 
Mexico, appear to be extirpated (NMRPTC 2006, p. 2; Sivinski 2005, p. 
1).
    Information on the persistence and status of localities is lacking 
for many areas historically occupied by Cirsium wrightii. We are 
unaware of specific information on population abundance, or any year-
round or long-term monitoring data on C. wrightii in Arizona, New 
Mexico or Mexico (see also Sivinski 1996). In Texas, Cirsium wrightii 
specimens have been confused with C. texanum because of the difficulty 
in distinguishing the two species (Sivinski 1994, p. 1; 1994a, p. 1; 
Sivinski 2007, p. 1). For these reasons, the status of this species 
remains unclear in its range in both the southwestern United States and 
in Mexico.

Five-Factor Evaluation

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR 424, set forth the procedures for adding species 
to the Federal Lists of Endangered and Threatened Wildlife and Plants. 
A species may be determined to be an endangered or threatened species 
due to one or more of the five factors described in section 4(a)(1) of 
the Act: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.
    In making this 90-day finding, we evaluated whether information on 
threats to Cirsium wrightii, as presented in the petition and other 
information available in our files, is substantial, thereby indicating 
that the petitioned action may be warranted. Our evaluation of this 
information is presented below.

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

Information Provided in the Petition
    The petitioner asserts that the most significant threat to Cirsium 
wrightii is the alteration of the hydrology of its rare wetland 
habitat. Cirsium wrightii is a wetland obligate, and populations have a 
high potential for extirpation when habitat dries due to water 
diversions, draining of wetlands, or drought. The petitioner makes the 
following claims:
    (1) The extirpation of C. wrightii populations in Chaves and Sierra 
Counties, New Mexico, are likely linked to the depletion of water 
through human activity;
    (2) Marshes along drainages in the Sacramento Mountains have been 
drained, but likely contained populations of C. wrightii historically; 
and
    (3) Extant populations of C. wrightii in Otero and Guadalupe 
Counties, New Mexico, are currently threatened, and will be threatened 
in the future, by municipal water diversion and use, and the draining 
and development of wetlands.
    The petitioner cites the U.S. Forest Service (USFS) (2008) as 
support for the assertion that private wells in Otero County have 
increased since the 1950s. The petitioner believes that these private 
wells threaten the species by diverting and draining water from canyons 
that currently or historically supported C. wrightii populations. 
Finally, the petitioner believes that, although the USFS considers C. 
wrightii to be a sensitive species on the Lincoln National Forest (see 
further discussion under Factor D), it recently permitted actions that 
may result in the destruction of its habitat (e.g., see USFS 2008, 
entire document).
    The petitioner asserts Cirsium wrightii is threatened by 
alterations to the hydrology of its rare wetland habitat, as desert 
springs and cienegas (marshes) are susceptible to drying or being 
diverted (NMPTC 2006, p. 2; Worthington 2002a, p. 3). Loss of water 
from wetland or spring habitat occurs naturally through changing 
precipitation patterns or as a result of human impacts from direct or 
indirect water diversion (USFS 2008, p. 19). For example, the C. 
wrightii population on City of Roswell lands has been extirpated as 
habitat at that location is no longer suitable for the plant (New 
Mexico Department of Game and Fish 2005, pp. 33-34; Sivinski 1996, p. 
4).

[[Page 46545]]

Cirsium wrightii occurrences in La Luz Canyon in the Sacramento 
Mountains of New Mexico are within municipal supply watersheds, where 
pipelines divert water to the City of Alamogordo (Shomaker 2006, pp. 
20, 26; USFS 2008, p. 21). The petitioner indicates that:
    (1) The City of Alamogordo holds about 11,500 acre feet (1420 
hectare meters) per year in water rights on the Lincoln National Forest 
and other lands that they continue to use;
    (2) The number of private wells in La Luz and Fresnal Canyons in 
the Sacramento Mountains has increased 94 percent since the 1950s; and
    (3) These watersheds were recently designated a critical management 
area, where the New Mexico Office of the State Engineer no longer 
permits new non-domestic groundwater appropriations (USFS 2008, p. 21).
    The USFS (2008, p. 23) concluded that water withdrawal would 
continue to increase in this area and compound the effects of the 
recent and ongoing drought, leading to degradation of wetland and 
riparian habitat. The USFS (2008, p. 26) determined that Cirsium 
wrightii occurrences in this area would be affected by their issuance 
of a special use permit to maintain and operate the pipelines on USFS 
lands. Other C. wrightii occurrences are within areas where water is 
diverted for domestic use, which may contribute to the drying of its 
habitat (Sivinski 2006, p. 1).
    The petitioner claims that the direct effects of grazing on Cirsium 
wrightii are not known and that Sivinski (1995, p. 5) did not find any 
evidence of the plant being grazed. Alternatively, the petitioner 
asserts that cattle may indirectly and adversely affect C. wrightii by 
degrading its habitat, changing soil structure and chemistry, and 
reducing water quality. Nevertheless, the petitioners note that no 
studies specifically related to the effects of livestock grazing on C. 
wrightii have been conducted (NMRPTC 2006, p. 2). Sivinski (1995, p. 5) 
noted that if two small springs in La Luz Canyon were diverted for 
livestock use, C. wrightii could potentially be impacted. The 
petitioner does not detail ongoing or future direct or indirect impacts 
to the species from livestock.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    We reviewed Sivinski (1996, 2005a, 2006) and find the assertions 
made by the petitioner to be reliable and accurate. Sivinski (1994, 
pp.1-2; 1996, p. 4; 2005, p. 1; 2006, p. 4) reported loss or 
degradation of habitat in Chaves, Otero, and Sierra Counties, New 
Mexico, areas that historically supported Cirsium wrightii. The 
population at the type locality from Arizona has not been relocated and 
the species may be extirpated from the State (AGFD 2001, p. 1; Sivinski 
1994, p. 1; 1996, p. 4). There are six general confirmed locations in 
New Mexico, each having occurrences within a few miles of one another, 
one verified population of a few plants in Presidio County, Texas, and 
no locations confirmed to be extant in Arizona and Mexico (Sivinski 
1996, pp. 2-5; Sivinski 2005, p. 1; 2006, p. 1; Worthington 2002a, p. 
4).
    Increased water extraction in the last 100 years has contributed to 
the depletion of most surface spring systems in the Chihuahuan Desert 
(see Karges 2003 and references therein). Moreover, the appropriation 
of water rights from springs for a ``beneficial use,'' such as 
livestock water, farming, domestic use, or recreational facilities, 
typically uses points of diversion that can curtail natural surface 
flows. Information in our files indicates that aquifers in the 
Sacramento Mountains are susceptible to appropriation by existing water 
rights and development of new water rights, which may pose future 
threats to the species (Service 2008, entire; USFS 2008, entire). For 
these reasons, we find that the petition presents substantial 
information that listing of the species may be warranted due to the 
alteration of wetland habitat occupied and needed by C. wrightii. We 
intend to assess this factor more thoroughly during the status review 
for the species.
    We have no information in our files regarding grazing as a threat 
to C. wrightii, nor did the petitioner provide any information on 
observed or potential effects of grazing.
    We find that there is substantial information in the petition and 
readily available in our files to indicate Cirsium wrightii may be 
threatened by the present or threatened destruction, modification, or 
curtailment of its habitat as a result of the alteration of desert 
springs, seeps, and wetland habitats. We did not find substantial 
information in the petition or readily available in our files to 
indicate that livestock grazing may be a threat to the species; 
however, we will assess the potential impacts of livestock grazing 
during the status review for the species.

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

    The petitioner provides no information addressing this factor, and 
we have no information in our files indicating that listing of the 
species due to overutilization for commercial, recreational, 
scientific, or educational purposes may be warranted. We intend to 
assess this factor more thoroughly during the status review for the 
species.

C. Disease or Predation

Information Provided in the Petition
    The petitioner provides information on an exotic weevil 
(Rhinocyllus conicus) that was introduced into the Great Plains to feed 
on various species of thistles, and claims that this and other native 
and exotic predator species may threaten native Cirsium (thistle) 
species. The petitioner provides no information addressing impacts of 
disease on Cirsium wrightii.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Information in our files substantiates that there have been 
intentional releases of the exotic weevil to control Carduus nutans 
(musk thistle) (Sivinski 1994, p. 2; 2007, p. 6; NMRPTC 2006, p. 2; 
Bridge 2001, p. 1; AGFD 2001, p. 2). This exotic weevil has recently 
been found in the Sacramento Mountains in habitat occupied by Cirsium 
wrightii (Sivinski 2007, p. 6). Moreover, a native predator, the stem 
borer weevil (Lixus pervestitus) caused a widespread premature stem 
death to the flower heads of at least one population of the endangered 
C. vinaceum (Sacramento Mountains thistle), which co-occurrs with C. 
wrightii (Sivinski 2007, pp. 8-12). It is unknown if the stem borer 
weevil feeds on C. wrightii or has the same level of impact; however, 
we will assess these potential impacts during the status review for the 
species.
    We find that there is substantial information in the petition and 
readily available in our files to indicate Cirsium wrightii may be 
threatened by predation. We did not find substantial information in the 
petition or readily available in our files to indicate that disease may 
be a threat to the species; however, we will assess the potential 
impact of disease during the status review for the species.

D. The Inadequacy of Existing Regulatory Mechanisms

Information Provided in the Petition
    The petitioner asserts that Cirsium wrightii is not adequately 
protected by Federal or State laws or policies to prevent its 
endangerment or extinction. The petitioner states that the species' 
ranking in NatureServe was changed from G3 (vulnerable) to G2 
(imperiled) in 2003 (NatureServe 2009, p. 1). Similarly, its National 
Status ranking for the U.S. is N2 (imperiled due to a

[[Page 46546]]

restricted range and very few populations) (NatureServe 2009, p. 2). 
The petition reports that Cirsium wrightii is listed as endangered by 
the State of New Mexico; however, the petitioner claims that this 
designation provides little regulatory protection for the habitat of 
the species. The petition reports that Cirsium wrightii is on the 
Regional Forester's Sensitive Species List and is noted by the Service 
to be a species of concern (USFS 2008, p. 35); however, the petitioner 
claims that these designations provide no protection or mitigation for 
impacts to the species.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    We reviewed these designations and find that the species receives 
no protection from the NatureServe designations because the designation 
lists only serve to notify the public of the species' status and do not 
require any conservation or management actions or provide any 
regulatory authority for conservation of species.
    The State of New Mexico lists Cirsium wrightii as endangered. As 
such, C. wrightii is protected from unauthorized collection, transport, 
or sale by the New Mexico Endangered Plant Species Act, 9-10-10 NMSA. 
This law prohibits the taking, possession, transportation and 
exportation, selling or offering for sale any listed plant species. 
Listed species can only be collected under permit from the State of New 
Mexico for scientific studies and impact mitigation; however, this law 
does not provide any protection for C. wrightii habitat. There are no 
statutory requirements under the jurisdiction of the State of New 
Mexico that serve as an effective regulatory mechanism for reducing or 
eliminating the threats (see Factors A and C above) that may adversely 
affect the C. wrightii and its habitat. There are also no requirements 
under the New Mexico State statutes to develop a recovery plan that 
will restore and protect existing habitat for the species. Therefore, 
the species does not have a recovery plan, conservation plan, or 
conservation agreement. For these reasons, we find that the petition 
contains substantial information that existing New Mexico State 
regulatory mechanisms may currently be inadequate to protect C. 
wrightii.
    The USFS is required to analyze the impacts on its sensitive 
species, including C. wrightii, in all applicable National 
Environmental Policy Act (NEPA) documents (42 U.S.C. 4321 et. seq.). On 
April 21, 2008, a new USFS planning rule (73 FR 21468) was made final 
that detailed how sensitive species would be analyzed in project 
planning and review. However, on June 30, 2009, the United States 
District Court for the Northern District of California issued a 
decision in Citizens for Better Forestry v. United States Department of 
Agriculture, No. C 08-1927 CW (N.D. Cal. June 30, 2009). The court 
enjoined the USFS from implementing and using the 2008 planning rule 
and remanded the matter to them for further proceedings. The Government 
has not yet determined whether to appeal the District Court's June 30, 
2009 decision to the Ninth Circuit Court of Appeals. Therefore, the 
protections that may be afforded the species due to its USFS sensitive 
species status are unclear, and we will assess this factor more 
thoroughly during the status review for the species.
    Similarly, the petitioner notes that the Service has identified 
Cirsium wrightii as a species of concern (Service 2009). While not a 
formal legal designation under Service regulations, a species of 
concern is defined as a taxon for which further biological research and 
field study are needed to resolve its conservation status or which is 
considered sensitive, rare, or declining on lists maintained by Natural 
Heritage Programs, State wildlife agencies, other Federal agencies, or 
professional/academic scientific societies. Species of concern are 
identified for planning purposes only and the title confers no 
regulatory protection.
    Neither the petition nor our files provide information about 
existing regulatory mechanisms for the species if it is extant in 
Arizona, Texas, or Mexico. As such, we found no information that the 
lack of regulatory mechanisms in Arizona, Texas, or Mexico is affecting 
the continued existence of Cirsium wrightii.
    We find that there is substantial information in the petition and 
readily available in our files to indicate that Cirsium wrightii may 
receive inadequate protection from its designation as a USFS sensitive 
species and from current regulatory mechanisms in the State of New 
Mexico. It receives no regulatory protection from the NatureServe 
designations or from the Service designation as a species of concern, 
because these lists only serve to notify the public of the species' 
status and do not require any conservation or management actions. The 
petitioner does not provide substantial information on the inadequacy 
of other existing regulatory mechanisms, including those which may be 
in place in Texas, Arizona, or Mexico. In summary, we find that there 
is substantial information in the petition and readily available in our 
files to indicate C. wrightii may be threatened by the inadequacy of 
existing regulatory mechanisms.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

Information Presented in the Petition
    The petitioner reports that drought may threaten Cirsium wrightii, 
as parts of the Sacramento Mountains have experienced extreme drought 
conditions in recent years, creating conditions that are not conducive 
to the species' occupation (USFS 2008, p. 21).
    The petitioner notes that Cirsium wrightii is known to hybridize 
with C. texanum and C. vinaceum, threatening the genetic integrity of 
the species (Correll and Johnston 1979, p. 1719; NMRPTC 2006, pp. 1-2).
    The petitioner also claims that Cirsium wrightii is threatened by 
climate change. The petitioner does not cite any information or 
publications in support of their claim on a correlation between climate 
change and the persistence of the species. The petitioner claims that 
climate change further complicates the impact of drought and water 
diversions, and suggests that regional landscape-scale vegetation 
changes from climate change are strong indicators for the potential 
loss of wetland habitat. The petitioner cites Breshears et al. (2005) 
as support; however, the authors (Breshears et al. (2005)) report on 
Pinus edulis (pinyon pine) in the Jemez Mountains, New Mexico, and not 
changes to wetland habitat or even vegetation changes within the range 
of C. wrightii.
    The petitioner also claims that introduced plant species pose a 
threat to Cirsium wrightii through competition. The petitioner believes 
that Elaeagnus angustifolia (Russian olive), Tamarix spp. (salt cedar), 
and Lythrum spp. (loosestrife) can severely impact occurrences of C. 
wrightii.
    The petitioner asserts that some occurrences of Cirsium wrightii 
are threatened by mechanical and herbicide treatments by individuals 
who believe they are eradicating invasive plants.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Information in our files supports the petitioner's claim that 
Cirsium wrightii may be threatened by drought. Sivinski (2005a, pp. 3-
4) reports that springs and wet valleys have been affected by drought 
in at least three canyons of the Sacramento Mountains, New Mexico,

[[Page 46547]]

resulting in reduced C. wrightii populations.
    Information in our files substantiates the petitioner's claim that 
Cirsium wrightii hybridizes with other species. For example, Cirsium 
species observed at Rattlesnake Springs (Carlsbad Caverns National 
Park), New Mexico, show characteristics that are intermediate between 
C. wrightii and C. texanum (NMRPTC 2006, pp. 1-2). This Cirsium 
population blooms in May rather than in August through October, as is 
typical of C. wrightii. C. wrightii sometimes occurs with the 
threatened C. vinaceum in the Sacramento Mountains, where a few hybrids 
between these rare taxa have been observed; however, hybrid plants are 
apparently uncommon (Service 2008a, p. 13; Worthington 2002, p. 1). We 
will assess hybridization more thoroughly during the status review for 
the species.
    We find the information presented in the petition and readily 
available in our files on the subject of climate change to be 
insufficiently specific to C. wrightii to be conclusive; however, the 
Intergovernmental Panel on Climate Change (IPCC) states that warming of 
the climate is unequivocal and indicates that drying trends in the 
Southwest are likely to persist or worsen (IPCC 2007a, p. 15; IPCC 
2007b, p. 887). We intend to investigate the effects of climate change 
on C. wrightii further in the status review for the species.
    We find the information cited on the potential threat of introduced 
species, E. angustifolia and Tamarix spp, to be generic in nature and 
not specific to C. wrightii or its habitat. Sivinski (1996) reports 
that E. angustifolia and Tamarix spp. are becoming dominate in many 
riparian and wetland areas, but that these species likely do not 
threaten C. wrightii because it grows in saturated substrates that are 
not suitable habitat for these exotic trees; however, there is 
substantial information that indicates that Lythrum spp. could severely 
impact the habitat of C. wrightii at some point in the foreseeable 
future. Sivinski (1996, p. 6) reports that this exotic species has not 
yet spread to the interior Southwest, but is spreading throughout the 
west coast States.
    We find that there is substantial information in the petition and 
readily available in our files to indicate Cirsium wrightii may be 
threatened by drought and potential competition from Lythrum spp. While 
hybridization between C. wrightii and other Cirsium species has been 
observed, it is uncommon, and does not appear to be a significant 
threat to C. wrightii. We did not find substantial information in the 
petition or readily available in our files to indicate that C. wrightii 
may be threatened by the effects of climate change or competition from 
Elaeagnus angustifolia or Tamarix spp; however, we will assess these 
potential impacts during the status review for the species.

Finding

    Section 4(b)(3)(A) of the Act 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. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. 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 the 
finding promptly in the Federal Register.
    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)). 
We have reviewed the petition and the literature cited in the petition, 
and evaluated the information to determine whether the sources cited 
support the claims made in the petition. We also reviewed reliable 
information that was readily available in our files to clarify and 
verify information in the petition. Based on our evaluation of the 
information provided in the petition, we find that the petition 
presents substantial scientific information indicating that listing 
Cirsium wrightii may be warranted.
    The petitioner presents substantial information indicating that 
Cirsium wrightii may be threatened by Factor A (the present or 
threatened destruction, modification, or curtailment of its habitat or 
range), Factor C (predation), Factor D (inadequacy of existing 
regulatory mechanisms), and Factor E (other natural or manmade factors 
affecting its continued existence). The petitioner does not present 
substantial information that Factor B (overutilization for commercial, 
recreational, scientific, or educational purposes) is currently, or may 
be in the future, a threat to C. wrightii. Based on this review and 
evaluation, we find that the petition presents substantial scientific 
or commercial information that listing C. wrightii throughout all or a 
significant portion of its range may be warranted due to current and 
future threats under Factors A, C, D, and E. Therefore, we are 
initiating a status review to determine whether listing C. wrightii 
under the Act is warranted. We will issue a 12-month finding as to 
whether any of the petitioned actions are warranted. To ensure that the 
status review is comprehensive, we request scientific and commercial 
information regarding C. wrightii.
    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 review 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 positive 90-day finding. Because the 
Act's standards for 90-day and 12-month findings are different, as 
described above, a positive 90-day finding does not mean that the 12-
month finding also will be positive.
    We encourage interested parties to continue gathering data that 
will assist with the conservation of Cirsium wrightii. The petitioner 
requests that critical habitat be designated for this species. If we 
determine in our 12-month finding that listing C. wrightii is 
warranted, we will address the designation of critical habitat at the 
time of the proposed rulemaking.

References Cited

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

Author

    The primary authors of this rule are the staff members of the New 
Mexico Ecological Services Office (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: August 24, 2009.
Daniel M. Ashe,
Acting Director, Fish and Wildlife Service.
[FR Doc. E9-21755 Filed 9-9- 09; 8:45 am]
BILLING CODE 4310-55-S