46542 Federal Register / Vol. 74, No. 174 / Thursday, September 10, 2009 / Proposed Rules 

ACTIONS FUNDED IN FY 2009 BUT NOT

YET COMPLETED—Continued 

Species Action 

2 mussels 

(sheepnose (LPN 

= 2), 

spectaclecase 

(LPN = 4),) 

Proposed listing 

Ozark hellbender2

(LPN = 3) 

Proposed listing 

Altamaha 

spinymussel (LPN 

= 2) 

Proposed listing 

5 southeast fish 

(rush darter (LPN 

= 2), chucky 

madtom (LPN = 

2), yellowcheek 

darter (LPN = 2), 

Cumberland darter 

(LPN = 5), laurel 

dace (LPN = 5)) 

Proposed listing 

8 southeast mussels 

(southern 

kidneyshell (LPN 

= 2), round 

ebonyshell (LPN = 

2), Alabama 

pearlshell (LPN = 

2), southern 

sandshell (LPN = 

5), fuzzy pigtoe 

(LPN = 5), Choctaw bean (LPN = 

5), narrow pigtoe 

(LPN = 11), and 

tapered pigtoe 

(LPN = 11)) 

Proposed listing 

3 Colorado plants 

(Pagosa skyrocket 

(Ipomopsis 

polyantha) (LPN = 

2), Parchute 

beardtongue 

(Penstemon 

debilis) (LPN = 2), 

Debeque phacelia 

(Phacelia 

submutica) (LPN = 

8)) 

Proposed listing 

1Funds for listing actions for these species 

were provided in previous FYs. 2We funded a proposed rule for this subspecies with an LPN of 3 ahead of other species with LPN of 2, because the threats to the 

species were so imminent and of a high magnitude that we considered emergency listing if 

we were unable to fund work on a proposed 

listing rule in FY 2008. 3Funds for these high priority listing actions 

were provided in FY 2008 and 2009 

We have endeavored to make our 

listing actions as efficient and timely as 

possible, given the requirements of the 

relevant law 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. Given our limited budget for 

implementing section 4 of the Act, these 

actions described above collectively 

constitute expeditious progress. 

Astragalus anserinus will be added to 

the list of candidate species upon 

publication of this 12–month finding. 

We will continue to monitor the status 

of this species as new information 

becomes available. This review will 

determine if a change in status is 

warranted, including the need to make 

prompt use of emergency listing 

procedures. 

We intend that any proposed listing 

action for Astragalus anserinus 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 this 

finding. 

References Cited 

A complete list of all references cited 

is available on the Internet at http:// 

www.regulations.govand on request 

from the Idaho Fish and Wildlife Office 

(see ADDRESSES). 

Author 

The primary authors of this document 

are the staff members of the Idaho Fish 

and Wildlife Office 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: August 26, 2009 

Daniel M. Ashe 

Acting Director, U.S. Fish and Wildlife Service 

[FR Doc. E9–21754 Filed 9–9–09; 8:45 am] 

BILLING CODE 4310–55–S 

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. 

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: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for docket 

FWS-R2-ES-2009-0060 and then follow 

the instructions for submitting 

comments. 

• 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 


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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 

§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). 


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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). 


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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 


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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, 


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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 


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