[Federal Register: December 5, 2006 (Volume 71, Number 233)]
[Proposed Rules]               
[Page 70479-70483]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Delist the Sacramento Mountains Thistle (Cirsium 
vinaceum) and Initiation of 5-Year Status Review

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of 5-year 
status review.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to remove the threatened Sacramento 
Mountains thistle (Cirsium vinaceum) (thistle) from the Federal List of 
Threatened and Endangered Plants, under the Endangered Species Act of 
1973, as amended (Act). We find the petition does not present 
substantial information indicating that delisting of the thistle may be 
warranted. Therefore, we will not initiate a further 12-month status 
review in response to this petition under section 4(b)(3)(B) of the 
Act. However, we are initiating a 5-year review of this species under 
section 4(c)(2)(A) of the Act to consider information that has become 
available since we listed the species as threatened on June 16, 1987 
(52 FR 22933). This will provide the public an opportunity to submit 
new information on the status of the species. We invite all interested 
parties to submit comments or information regarding this species.

DATES: The finding in this document was made on December 5, 2006. To be 
considered in the 5-year review, comments and information should be 
submitted to us (see ADDRESSES section) on or before March 5, 2007. 
However, we will continue to accept new information about any listed 
species at any time.

ADDRESSES: Data, comments, information, or questions concerning this 
petition finding and 5-year review should be submitted to the Field 
Supervisor, New Mexico Ecological Services Field Office, 2105 Osuna 
Road NE, Albuquerque, New Mexico 87113. You may send your comments by 
electronic mail (e-mail) directly to the Service at 
thistlecomments@fws.gov. The petition, supporting data, and comments 

will be made available for public inspection, by appointment, during 
normal business hours at the above address.

Ecological Services Field Office (see ADDRESSES above) (telephone 505-
346-2525, facsimile 505-346-2542).



    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. We 
are to base this finding on information provided in the petition. 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.'' 
Petitioners need not prove that the petitioned action is warranted to 
support a ``substantial'' finding; instead, the key consideration in 
evaluating whether or not a petition presents ``substantial'' 
information involves demonstration of the reliability and adequacy of 
the information supporting the action advocated by the petition.

[[Page 70480]]

    We have to satisfy the Act's requirement that we use the best 
available scientific and commercial information to make our decisions. 
However, we do not conduct additional research at this point, nor do we 
subject the petition to rigorous critical review. Rather, at the 90-day 
finding stage, we accept the petitioner's sources and characterizations 
of the information, to the extent that they appear to be based on 
accepted scientific principles (such as citing published and peer 
reviewed articles, or studies done in accordance with valid 
methodologies), unless we have specific information to the contrary. 
Our finding considers whether the petition states a reasonable case for 
delisting on its face. Thus, our 90-day finding expresses no view as to 
the ultimate issue of whether the species should no longer be 
classified as a threatened species. We make no determinations as to the 
currency, accuracy, completeness, or veracity of the petition. The 
contents of this finding summarize that information that was available 
to us at the time of the petition review.
    In making this finding, we relied on information provided by the 
petitioners and information available in our files at the time we 
reviewed the petition, and we evaluated that information in accordance 
with 50 CFR 424.14(b). Our process for making a 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.

Species Information

    The thistle is a stout plant, 3.3 to 5.9 feet (ft) (1 to 1.8 meters 
(m)) tall. Thistle 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. The thistle 
presently occurs on both the eastern and western slopes of the 
Sacramento Mountains in Otero County, New Mexico. The thistle occurs 
primarily on National Forest System lands of the Lincoln National 
Forest in south-central 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). In this area, the thistle occurs 
within the mixed conifer zone, between 7,500 and 9,500 ft (2,300 and 
2,900 m), in limestone substrate. The thistle is an obligate riparian 
species that requires saturated soils with surface or sub-surface water 
flow. Waters at these sites are rich in calcium carbonate 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 habitats of the thistle.
    On June 16, 1987, we listed the thistle as a threatened species 
based on threats from water development, grazing, recreation, logging, 
and the invasion of exotic plants (52 FR 22933). A recovery plan for 
the species was finalized on September 27, 1993 (Service 1993, pp. 1-

Review of the Petition

    For this finding, the Service evaluated the statements and 
information in the petition by comparing these with information 
contained in our files. The Act identifies the five factors to be 
considered, either singly or in combination, to determine whether a 
species may be threatened or endangered or whether a listed species 
should be reclassified or removed from the list. The following 
discussion presents our evaluation of the petition, based on 
information provided in the petition, information available in our 
files, and our current understanding of the species.
    On April 30, 2004, we received a petition from Mr. Doug Moore, 
Otero County Commissioner, New Mexico, to delist the thistle as a 
threatened species. In response to the petitioner's request to delist 
the thistle, we sent a letter to the petitioner dated August 31, 2005, 
explaining that the Service would review the petition and determine 
whether or not the petition presents substantial information indicating 
that delisting the thistle may be warranted.
    The petition references the June 16, 1987, final listing rule (52 
FR 22933) and lists the following threats for the species: (1) Loss of 
water; (2) trampling or ground disturbance by cattle, wildlife, or 
humans; (3) grazing of plants; and (4) logging. The supporting 
information provided by the petitioner includes only a portion of one 
recent biological assessment and a portion of one recent biological 
opinion conducted for a USDA Forest Service (Forest Service) grazing 
allotment (Forest Service 2003, pp. 1, 57-68; Service 2004, pp. 1, 25-
27). The petition also provides the following summary statements 
regarding the thistle: (1) The range of the species is 500 percent 
greater than when it was listed in 1987; (2) the known population size 
is 2,800 percent greater than when it was listed; and (3) the known 
threats that can be managed have been virtually removed. The petitioner 
states that monitoring has determined that grazing and disturbance no 
longer threaten the species, and that logging has never impacted the 
thistle. The petition also cites a biological assessment prepared by 
the Forest Service (Forest Service 2003, pp. 41-68) that indicates the 
thistle's abundance and range have increased since the species was 
    Finally, the petitioner disagrees with the Recovery Plan's strategy 
of encouraging the State of New Mexico to adopt water law standards 
that recognize the need for preservation of in-stream flow to benefit 
plants, fish, and other wildlife (Service 1993, p. 9). The petitioner 
suggests that proactive watershed restoration would be a more effective 
strategy to insure the availability of water at the springs and bogs 
which provide habitat for the species. The Petitioner also suggests 
that the availability of water, air, and sunshine are aspects of the 
natural world which do not need to be guaranteed by the Service before 
a species can be delisted.

Conservation Status

    Under section 4 of the Act, we may list or delist 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. This 90-day finding is not a status 
assessment and does not constitute a status review under the Act. 
Therefore, what follows below is a preliminary review of the factors 
affecting this species.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    The June 16, 1987, listing (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 
and reservoir construction), trampling by recreationists, road 
maintenance, and logging as threats to the species' habitat and range. 
The thistle also has been impacted by off-road vehicles (ORVs), 
motorcycles, road grading, and other activities (Service 1993, pp. 4-6; 
Forest Service 2004, pp. 625-629).

[[Page 70481]]

Information Provided in the Petition
    The petitioner maintains that loss of water may threaten the 
thistle, but suggests that the availability of water, air, and sunshine 
are aspects of the natural world which do not need to be guaranteed by 
the Service. The petitioner notes that proactive watershed restoration 
would be more appropriate than acquiring water rights for the thistle. 
The petitioner also states that logging has not impacted the thistle 
because forest management discourages these activities near areas 
considered habitat (springs and bogs). Finally, the petitioner 
maintains that the plant's known population size is 2,800 percent 
greater than when it was listed.
Evaluation of Information in the Petition
    We agree with the petitioner that reduction in the availability of 
water could threaten the species. As noted, the thistle is an obligate 
riparian species that requires surface or immediately sub-surface water 
flows. The loss of water can be: (1) Naturally caused due to drought 
conditions; (2) caused by other factors that may cause a spring to go 
dry (i.e., rerouting of underground channels); or (3) caused by 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). Since 1999, New Mexico has been in a drought 
(Piechota et al. 2004, pp. 303-305); however, the length or severity of 
the current drought cycle is not known, and the Southwest may be 
entering a period of prolonged drought (McCabe et al. 2004, pp. 4138-
4140). Droughts of the 20th century are minor in comparison to droughts 
in the last 2000 years. For example, droughts prior to 1600 are 
characterized by longer duration (multidecadal) and greater spatial 
extent than droughts of today (Woodhouse and Overpeck 1998, pp. 2698-
2706; Piechota et al. 2004, pp. 303-305). It is unknown how the springs 
in the Sacramento Mountains would respond to extended drought and an 
increase in the level of water withdrawals (e.g., groundwater pumping). 
It is likely that the seasonal distribution of yearly precipitation 
also plays a role in water availability for the thistle. 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). We will 
consider the petitioner's suggestion for alternative methods of 
providing water in future recovery planning efforts.
    We generally agree with the statement that logging does not 
currently threaten the thistle. At present, the Forest Service applies 
a minimum 200 ft (60 m) protective buffer around thistle occurrences 
during forest management activities (Service 2002, p. 3; Service 2004, 
pp. 4-13; Service 2005a, p. 3). Still, the petition does not provide 
substantial scientific information that the present or threatened 
destruction, modification, or curtailment of habitat or range no longer 
threatens the thistle.
    Information in our files indicates that at the time of listing, the 
range of the thistle consisted of approximately 20 known population 
areas (within 6 large canyon drainages) containing an estimated 10,000 
to 15,000 sexually reproducing individuals (52 FR 22933; Service 1993, 
p. 2). Presently, the thistle occurs in small, dense populations at 86 
sites on the Lincoln National Forest with an estimated population of 
350,000 to 400,000 plants (Service 2005b, pp. 695-697). The extent of 
occupied sites and plant numbers fluctuates with rainfall and the 
amount of surface flow available. Populations generally expand in years 
of higher spring flows, with plants establishing farther downstream and 
scattered along the springs' outflow creeks. In years of lower flow, 
populations contract back to the wetter areas around the springs 
(Forest Service 2004, pp. 625-629).
    As discussed above, information in our files indicates that the 
petitioner's claim that the number of populations and range of the 
thistle are greater than what was known in 1987 is reliable and 
accurate. However, the petitioner has presented no information or 
analysis to suggest these increased numbers would indicate that listing 
is no longer warranted, nor to suggest that threats under Factor A no 
longer impact the species. Impacts to habitat remain substantial 
factors impacting the long-term viability of this species.

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

    The petition provides no information addressing this factor. The 
original listing did not cite this factor as significant.

C. Disease or Predation

Information Provided in the Petition
    The petition indicates that herbivory does not adversely affect the 
species because vigorous growth of thistle was observed in areas 
following heavy use.
Evaluation of Information in the Petition
    The original listing suggested the amount of predation by 
herbivores was minimal (52 FR 22933, June 16, 1987). Livestock can 
trample vulnerable seedlings, rosettes, and flowering stalks, as well 
as damage travertine and soft substrates in occupied and potential 
habitat (Thomson 1991, pp. 44-52; Service 2004, pp. 62-63). The 
petition includes information indicating that livestock use of occupied 
habitat results in trampling and herbivory, but reduced livestock 
stocking levels and fencing around springs has led to large increases 
in thistle abundance (Forest Service 2003, pp. 53-56; Service 2004, p. 
35; Service 2005b, pp. 698-703). For example, more than 10-fold 
increases have been observed in some areas following the construction 
and maintenance of exclosures (Forest Service 2003, pp. 53-56). Grazing 
exclosures have protected thistles from trampling and herbivory, and 
allowed populations inside the exclosures to expand outside fenced 
areas (Forest Service 2003, pp. 53-56). Forty of the 86 population 
sites located within the Lincoln National Forest have been fenced to 
exclude livestock or are considered to be inaccessible (Service 2005b, 
p. 698). Exclosures total approximately 120 ha (290 ac), protecting 
occupied thistle habitat from the negative impacts associated with 
livestock use (Service 2005b, p. 698). Although thistles have been 
documented to recover within a few weeks from light grazing (i.e., 
grazing impacting less than 10 percent of known plants), livestock 
grazing on the thistle's flowering stalks and the leaves of rosettes 
can contribute to the loss of the entire reproductive output of the 
plant (Forest Service 2003, p. 53, 59; Service 2005b, p. 697). The 
petitioner did present evidence that threats from grazing can be 
reduced by using exclosures but did not present evidence that grazing 
no longer is a threat to the species.

D. The Inadequacy of Existing Regulatory Mechanisms

    The petition does not discuss the adequacy of regulatory 
mechanisms. The original listing did not cite this factor as 
significant except to briefly mention that take was prohibited by 
existing Forest Service regulations and that no other State and Federal 
regulations protected the species.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The petition does not discuss other natural or manmade factors. The 
original listing discussed the impacts of livestock grazing on range 
and the impacts of competition from introduced exotic species. As 
livestock grazing was

[[Page 70482]]

also discussed under Factor C in the original listing, the petition's 
discussion of this issue and our response is covered under Predation 


    We have reviewed the petition and evaluated the information in 
relation to other pertinent literature and information available in our 
files. The thistle's population numbers and range are greater today 
than at the time of the June 16, 1987, listing. The petitioner states 
the threats are no longer significant, and requested that we delist the 
species. However, the petition does not analyze any new scientific 
information in relation to the five factors we must consider before 
proposing to delist a species. In addition, the petitioner includes 
very little detailed justification for the suggested delisting of the 
thistle, does not provide information regarding the status of the 
species over a significant portion of its range, does not describe or 
analyze how the threats relate to past or present numbers and 
distribution of the thistle, and includes only a small amount of 
supporting documentation. After this review and evaluation, we find the 
petition does not present substantial information to indicate that 
delisting the thistle may be warranted at this time.

5-Year Review

    Our regulations at 50 CFR 424.21 require that we publish a notice 
in the Federal Register announcing those species currently under active 
review. This notice announces our initiation of a 5-year review for the 
threatened thistle.

Why Is a 5-Year Review Conducted?

    Section 4(c)(2)(A) of the Act requires that we conduct a review of 
listed species at least once every 5 years. We are then, under section 
4(c)(2)(B) of the Act, to determine, on the basis of such a review, 
whether or not any species should be removed from the List of 
Endangered and Threatened Wildlife (50 CFR 17.11) or the List of 
Endangered and Threatened Wildlife Plants (50 CFR 17.12) (delisted), or 
reclassified from endangered to threatened (downlisted), or from 
threatened to endangered (uplisted).
    The 5-year review is an assessment of the best scientific and 
commercial data available at the time of the review. Therefore, we are 
requesting submission of any new scientific and commercial data on the 
thistle. Considering the best scientific and commercial information 
available, the Service will recommend whether or not a change is 
warranted in the Federal classification of the thistle. Any change in 
Federal classification would require a separate rulemaking. As part of 
our 5-year review, we will ensure that the information used is 
complete, accurate, and consistent with the requirements of the Act, 
the Service's Policy on Information Standards under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 

What Information Is Considered in the Review?

    A 5-year review considers all new information available at the time 
of the review. This review will consider the best scientific and 
commercial data that has become available since we listed the species 
on June 16, 1987 such as: (A) Species biology, including, but not 
limited to, population trends, distribution, abundance, demographics, 
and genetics; ( B) habitat conditions, including but not limited to 
amount, distribution, and suitability; (C) conservation measures that 
have been implemented to benefit the species; (D) threat status and 
trends (see five factors under heading ``How do we determine whether a 
species is endangered or threatened?''); and (E) other new information, 
data, or corrections, including, but not limited to, taxonomic or 
nomenclatural changes, identification of erroneous information 
contained in the List of Endangered and Threatened Wildlife and Plants, 
and improved analytical methods.

How Is the Sacramento Mountains Thistle Currently Listed?

    Under the Act, the Service maintains Lists of Endangered and 
Threatened Wildlife and Plant species (Lists) at 50 CFR 17.11 (for 
animals) and 17.12 (for plants). Amendments to the Lists through final 
rules are published in the Federal Register. The Lists are also 
available on our Internet site at http://endangered.fws.gov/wildlife.html.
 The Sacramento Mountains Thistle (Cirsium vinaceum) is 

listed as threatened, with an historic range of U.S.A. (New Mexico), in 
the family Asteraceae. It does not have designated critical habitat, 
and no 4(d) special rules apply to this plant.

Definitions Related to This Notice

    The following definitions are provided to assist those persons who 
contemplate submitting information regarding the species being 
reviewed: (A) Species includes any species or subspecies of fish, 
wildlife, or plant, and any distinct population segment of any species 
of vertebrate, which interbreeds when mature; (B) Endangered means any 
species that is in danger of extinction throughout all or a significant 
portion of its range; (C) Threatened means any species that is likely 
to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.

How Do We Determine Whether a Species Is Endangered or Threatened?

    Section 4(a)(1) of the Act establishes that we determine whether a 
species is endangered or threatened based on one or more of the five 
following factors: (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. Section 4(a)(1) of the Act requires 
that our determination be made on the basis of the best scientific and 
commercial data available.

What Could Happen as a Result of This Review?

    If we find that there is new information concerning the Sacramento 
Mountains thistle, indicating a change in classification may be 
warranted, we may propose a new rule that could do one of the 
following: (a) Reclassify the species from threatened to endangered 
(uplist); or (b) remove the species from the List (delist). If we 
determine that a change in classification is not warranted, then the 
thistle will remain on the List under its current threatened status.

Public Solicitation of New Information

    We request any new information concerning the status of the 
Sacramento Mountains thistle. See ``What Information Is Considered in 
the Review?'' heading for specific criteria. Information submitted 
should be supported by documentation such as maps, bibliographic 
references, methods used to gather and analyze the data, or copies of 
any pertinent publications, reports, or letters by knowledgeable 
sources. If you wish to submit information for the 5-year review, you 
may submit information to the Field Supervisor, New Mexico Ecological 
Services Field Office (see ADDRESSES).
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review

[[Page 70483]]

during regular business hours. Individual respondents may request that 
we withhold their home addresses from the rulemaking record, which we 
will honor to the extent allowable by law. There also may be 
circumstances in which we would withhold from the rulemaking record a 
respondent's identity, as allowable by law. If you wish us to withhold 
your name or address, you must state this prominently at the beginning 
of your comment, but you should be aware that the Service may be 
required to disclose your name and address under the Freedom of 
Information Act. However, we will not consider anonymous comments. We 
will make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 

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 


    The primary authors of this rule are the New Mexico Ecological 
Services Field Office staff (see ADDRESSES).


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

    Dated: November 14, 2006.
H. Dale Hall,
Director, Fish and Wildlife Service.
 [FR Doc. E6-20317 Filed 12-4-06; 8:45 am]