Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to Delist Cirsium vinaceum, 30757-30769 [2010-12909]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 105 (Wednesday, June 2, 2010)]
[Proposed Rules]
[Pages 30757-30769]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-12909]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2008-0114]
[92220-1113-0000; ABC Code: C5]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition to Delist Cirsium vinaceum (Sacramento Mountains thistle)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 12-month 
finding on a petition to remove Cirsium vinaceum (Sacramento Mountains 
thistle) from the Federal List of Threatened and Endangered Plants 
under the Endangered Species Act. After reviewing the best scientific 
and commercial information available, we find that delisting C. 
vinaceum is not warranted. However, we ask the public to submit to us 
any new information that becomes available concerning the status of, or 
threats to, the species or its habitats at any time. This information 
will help us monitor and encourage the conservation of this species.

DATES: The finding announced in this document was made on June 2, 2010.

ADDRESSES: This finding is available on the Internet at https://www.regulations.gov at Docket  FWS-R2-ES-2008-0114 and https://www.fws.gov/New Mexico. Supporting documentation we used to prepare 
this finding is available for public inspection, by appointment, during 
normal business hours at the U.S. Fish and Wildlife Service, New Mexico 
Ecological Services Office, 2105 Osuna NE, Albuquerque, NM 87113; 
telephone (505) 346-2525; facsimile (505) 346-2542. Please submit any 
new information, materials, comments, or questions concerning this 
finding to the above address.

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
New Mexico Ecological Services Field Office (see ADDRESSES). If you use 
a telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(A) of the Endangered Species Act of 1973, as 
amended (Act; 16 U.S.C. 1531 et seq.) requires that we make a finding 
on whether a petition to

[[Page 30758]]

list, delist, or reclassify a species presents substantial information 
to indicate the petitioned action may be warranted. Section 4(b)(3)(B) 
of the Act requires that within 12 months after receiving a petition to 
revise the Lists of Threatened and Endangered Wildlife and Plants 
(Lists) that contains substantial information indicating that the 
petitioned action may be warranted, the Secretary shall make one of the 
following findings: (a) The petitioned action is not warranted; (b) the 
petitioned action is warranted; or (c) the petitioned action is 
warranted but precluded by pending proposals to determine whether any 
species is an endangered or threatened species as long as expeditious 
progress is being made to add qualified species to, and remove species 
from, the Lists. Such 12-month findings are to be published promptly in 
the Federal Register.

Previous Federal Actions

    The U.S. Fish and Wildlife Service (Service) proposed to list 
Cirsium vinaceum as a threatened species with critical habitat under 
the Act on May 16, 1984 (49 FR 20735), and listed the species on June 
16, 1987 (52 FR 22933). A recovery plan for C. vinaceum was signed on 
September 27, 1993. The proposed critical habitat rule was not adopted 
in the final determination to list C. vinaceum as a threatened species. 
The proposed critical habitat rule was withdrawn, because the initial 
area proposed was considered too large to be essential for C. 
vinaceum's conservation; the secondary option of designating small, 
separated parcels around each population was deemed not prudent because 
of the potential for vandalism and the absence of net benefit to the 
species (52 FR 22935).
    On April 30, 2004, we received a petition from Mr. Doug Moore, 
County Commissioner of Otero County, New Mexico, to delist Cirsium 
vinaceum. In response to the petitioner's request to delist C. 
vinaceum, we sent a letter to the petitioner dated August 31, 2005, 
explaining that the Service would review the petition and information 
in our files and determine whether or not the petition presents 
substantial information indicating that delisting C. vinaceum may be 
warranted. We concluded in our 90-day finding that the information 
presented in the petition and information in our files was not 
substantial to indicate that delisting the species may be warranted; 
however, the Service initiated a 5-year status review of the species 
(71 FR 70479; December 5, 2006).
    On August 13, 2007, we received a petition from the Board of County 
Commissioners of Otero County, New Mexico, to delist Cirsium vinaceum. 
On August 31, 2007, the Service acknowledged receipt of Otero County's 
complete petition. On November 6, 2008, we published a 90-day finding 
with the conclusion that the petition and information in our files 
presented substantial information indicating that delisting C. vinaceum 
may be warranted (73 FR 66003). That document also initiated a review 
of the species' status within its range.

Species and Habitat Information

    E.O. Wooton and P.C. Standley first described Cirsium vinaceum in 
1913, and originally named it Carduus vinaceus, in accordance with 
generic concepts at that time. In 1915, Wooten and Standley combined 
the thistle with Cirsium, a common genus in the New Mexico flora.
    Cirsium vinaceum is a stout plant, 3.3 to 5.9 feet (ft) (1 to 1.8 
meters (m)) tall when mature. Cirsium vinaceum stems are brown-purple 
and highly branched. The basal leaves are green, 12 to 20 inches (in) 
(30 to 50 centimeters (cm)) long, and up to 8 in (20 cm) wide, with 
ragged edges. Cirsium vinaceum is a short-lived perennial. It lives as 
a rosette (a circular arrangement of leaves close to the ground) for 
one or more years, and eventually a stem bolts upward producing flower 
and seed. Flowering, the vehicle for reproduction, occurs only once, 
from late June through August, when pink-purple flower heads form at 
the tips of stems.
    Seeds are usually produced through cross-pollination, a form of 
sexual reproduction requiring genes from 2 or more separate Cirsium 
vinaceum individuals; however, this species is capable of reproducing 
asexually, using genetic material from a single individual to produce a 
clone. Pollen is carried by a variety of animal vectors, including 
several species of native bees, flies, butterflies, and hummingbirds 
(Tepedino 2002, pp. III.5-7). Burks (1994, pp. 72-78) studied pollen 
movement between C. vinaceum flowers and found that native bees were 
less active as pollinators in small sites (fewer than 100 flowering 
individuals) than in large sites (greater than 1,000 flowering 
individuals), although she concluded that this disparity did not limit 
the overall reproductive success of smaller sites. Burks did find, 
however, that the reproductive success of smaller sites may be limited 
by the relative abundance of heterospecific versus conspecific pollen 
on stigmas. Heterospecific pollen is pollen from other species and does 
not lead to successful fertilization, whereas conspecific pollen is 
pollen from other individuals of the same species, and when deposited 
on the stigma structures of flowers, can successfully fertilize that 
flower. Burks found that there was more conspecific pollen on the 
stigmas of flowers in larger sites than in smaller sites simply as a 
function of there being more C. vinaceum individuals in the area. This 
suggests that larger sites have a better chance of receiving enough of 
the appropriate type of pollen to ensure successful fertilization and 
persistence of that site.
    Cirsium vinaceum is an obligate wetland species that requires 
saturated soils with surface or subsurface water flow. Cirsium vinaceum 
habitats occur in mixed conifer forests and open valleys. Waters at 
these sites are rich in calcium carbonate, from limestone sources, that 
often precipitates out to create large areas of travertine (calcium 
carbonate) deposits, which occasionally become large bluffs or hills. 
Travertine deposits are the most common habitat of the species.
Distribution and Range
    Cirsium vinaceum occurs in Otero County, New Mexico, mostly on the 
eastern slope of the Sacramento Mountains, with a few sites on the 
western slope. The range extends from about 6 miles (mi) (10 kilometers 
(km)) northeast to about 17 mi (27 km) south of Cloudcroft in an area 
of about 150 square mi (390 square km) (Service 1993, p. 3). Plants 
occur in meadows and partly shaded forested areas in the mixed conifer 
zone at 7,500-9,200 ft (2,300-2.743 m) (USFS 2003, p. 42).
    More than 95 percent of the known Cirsium vinaceum sites occur on 
the Lincoln National Forest. There are two additional C. vinaceum sites 
near the southern boundary of the Mescalero Apache Reservation, and one 
known site on a private property seep in Fresnal Canyon that is visible 
from State Highway 82 (Sivinski 2006, pp. 8-9). The extent of C. 
vinaceum habitat on private property inholdings (privately owned land 
within the boundaries of a protected area that is federally or publicly 
owned) within the Lincoln National Forest is unknown.
    Craddock and Huenneke (1997, p. 218) studied water dispersal of 
seed and determined that resultant Cirsium vinaceum establishment in 
streamside habitats was sufficient to genetically link some discrete 
patches of plants. They also found C. vinaceum seed on the surface of 
snow and hypothesized that snowpack may provide large areas of smooth, 
unobstructed surface for wind transport of seed to adjacent C. vinaceum 
patches. Burks (1994, pp. 75-

[[Page 30759]]

77) states that discrete patches of C. vinaceum sites, interconnected 
by pollen and seed dispersal, could collectively be identified as a 
metapopulation. A metapopulation is defined as group of populations 
separated geographically, but interconnected through patterns of 
exchange of genes (Pulliam and Dunning 1994, pp. 189-190). Cirsium 
vinaceum habitats occur in relatively close proximity and may be 
sufficiently connected genetically to form one or more metapopulations.
    The U.S. Forest Service (USFS) catalogs Cirsium vinaceum 
occurrences as habitat locations or sites. New occupied sites have been 
documented on the Lincoln National Forest since C. vinaceum was listed 
as a threatened species in 1987. By 1993, a total of 62 sites was 
identified, of which 58 were on USFS land (Service 1993, p. 2). In 
1995, there were 77 sites known to occur on the Lincoln National Forest 
(Service 2005, p. 697). In 2005 and 2007, the USFS cataloged 104 
extant, historic, or potential C. vinaceum sites included in a 
monitoring program (Barlow-Irick 2007, p. 1); however, most of these 
sites are subdivisions of the original 20 populations described at 
listing. Some sites are sporadically occupied by a few plants during 
wet years, and unoccupied or dormant during droughts (Sivinski 2006, p. 
8). We conclude, therefore, that the 104 C. vinaceum sites currently 
identified by the USFS cannot be meaningfully compared numerically to 
the original 20 populations identified in the listing rule; most of the 
newly indentified sites do not represent true populations, but 
subdivisions of the original 20 populations which were identified 
through the increased survey effort.
    The known geographic range of Cirsium vinaceum has not 
significantly expanded since 1987. All but one of the newly documented 
sites occur within the 155-square-mi (401.45-square-km) critical 
habitat area identified in the 1984 listing proposal (49 FR 20739; May 
16, 1984). The newly occupied site in Fresnal Canyon extends the range 
by less than 1 mi (1.6 km) (Sivinski 2009a, p. 1). It was believed to 
be extirpated when this species was listed, and is thought to be the 
type locality (representative location where the first specimen was 
found) for the species (Sivinski 2009a, p. 1). This site has recently 
been reoccupied due to a USFS road management action that increased 
water supply to the site (USFS 2004, p. 626). Cirsium vinaceum plants 
occur in small, dense groupings covering less than 100 acres (ac) (40 
hectares (ha)) (Service 2005, p. 695). Within the range of the species, 
sites vary in size from 5 square m (54 square ft) to several thousand 
square meters.
Population Abundance
    At the time of listing as a threatened species in 1987, surveys of 
USFS land estimated Cirsium vinaceum to be a species with 10,000 to 
15,000 sexually reproducing individuals (June 16, 1987; 52 FR 22933). 
Most of these individuals occur in sites on USFS lands; however, 
several are on private lands and the Mescalero Indian Reservation (June 
16, 1987; 52 FR 22933). Both the Service and the USFS noted at the time 
that accurate counts of the plant had not been made, and that the 
actual number of plants was likely much larger than the best available 
data indicated. A 1990 inventory of Lincoln National Forest habitats 
located 196,000 total plants, including mature and juvenile rosettes 
(Service 1993, p. 2). This inventory was conducted primarily within the 
original 20 populations described at the time of listing. The survey 
method used reflected all age classes of plants in their habitats, 
rather than methods used in subsequent inventories in which only 
flowering stems were counted. The 1990 inventory also determined that 
C. vinaceum is capable of sporadic root sprouting to produce multiple 
rosettes, or clones, per individual.
    Six additional inventories of Cirsium vinaceum on the Lincoln 
National Forest have been conducted, beginning in 1995, by Dr. Laura 
Huenneke, and in subsequent years by Dr. Patricia Barlow-Irick. These 
inventories consistently followed the survey protocol of counting only 
flowering plants, rather than all plants of various age classes, at 
most of the Lincoln National Forest locations known at the time. 
Surveyed sites consisted of historically occupied, currently occupied, 
and potentially suitable sites within the known range of C. vinaceum. 
Total numbers of flowering individuals were 34,228 in 1995; 39,849 in 
1998; 34,710 in 2000; 30,460 in 2003; 28,063 in 2005; and 24,124 in 
2007 (Barlow-Irick 2008, p. 1). Total numbers of habitat sites assessed 
were: 76 sites in 1995, 81 sites in 1998, 82 sites in 2000, 85 sites in 
2003, 85 sites in 2005, and 81 sites in 2007 (Barlow-Irick 2007, p. 1; 
Sivinski 2006, p. 6).
    Many of the occupied Cirsium vinaceum sites included in these 
surveys are only 330 ft (100 m) apart and are as small as 54 square ft 
(5 square m). Therefore, we do not consider all of these sites to be 
``populations'' in a reproductive or genetic sense of the term, because 
many are in close proximity to one another (Service 1993, p. 4). The 
1987 description of C. vinaceum as occurring in 20 populations of 
discrete patches of plants, or clusters of proximate occupied habitats 
that experience limited exchange of genes between plants in each of the 
patches because of geographic distance, has been revised using more 
complete survey information. Subsequent discoveries of several 
additional patches of C. vinaceum between these ``populations'' and 
observations of seed dispersal in streams have significantly reduced 
the number of C. vinaceum patches that could conform to the traditional 
biological definition of a population (Craddock and Huenneke 1997, p. 
218); however, a revised number of populations of C. vinaceum has not 
been determined.
    The Service and USFS estimates of total population size of Cirsium 
vinaceum are based on the 1995 monitoring protocol of multiplying the 
number of flowering individuals by 10 to account for the numerous 
juvenile rosettes (USFS 2003, pp. 44-45). The multiplier of 10 is based 
on a 1989 count of all rosettes in four C. vinaceum sites, which found 
that flowering individuals ranged from 10 percent to 13 percent of the 
rosettes in the four sites (Sivinski 2006, p. 6). Therefore, this 
protocol relies on a very limited sample in a single year, which may or 
may not be accurate for an entire population estimate in any given year 
(Sivinski 2006, p. 6). We currently do not have information available 
to determine whether 1989 was a representative year, and how other 
years compare to 1989 in terms of total numbers of rosettes at a 
variety of C. vinaceum sites. For these reasons, we are using actual 
flowering stem counts in this finding, and not estimates of total 
population size, as determined by the 1995 monitoring protocol.
    In 1998, the survey protocol was changed from estimating population 
size to actually counting every flowering stem. Additional sites were 
found in this year, leading to a population size that would translate 
to nearly 400,000 individuals using the old protocol of multiplying the 
number of flowering individuals by 10. Barlow-Irick, the contractor who 
completed the inventories of Cirsium vinaceum from 1998 to 2007, states 
that the reported increase in numbers is not the result of the species 
being more abundant within populations, but rather is strictly a 
function of finding more sites as well as the change in protocol from 
estimating population size to actually counting every flowering stem 
(Barlow-Irick 2008, p. 1).

[[Page 30760]]

    The intensive field monitoring described above conducted by 
Huenneke and Barlow-Irick shows a downward trend in the number of 
occupied sites, overall population numbers, and number of flowering 
stalks from 1998 to 2007. The rate of decline in total flowering C. 
vinaceum numbers was 12.9 percent between 1998 and 2000, 12.2 percent 
between 2000 and 2003, 7.9 percent between 2003 and 2005, and 14 
percent between 2005 and 2007. This decline coincides with a severe 
long-term period of drought with higher than average winter 
temperatures across most of New Mexico beginning in 1999 (Sivinski 
2006, pp. 6-7). Five C. vinaceum sites were extirpated between 1995 and 
2007. In 2007, another 18 sites contained less than 25 percent of the 
average number of plants documented in the previous five surveys, and 
11 other sites had between 25 and 50 percent of their average stem 
count (Barlow-Irick 2008, p. 2). However, a declining trend is not 
completely consistent among C. vinaceum sites. While most C. vinaceum 
sites have experienced decreasing numbers of flowering stems during the 
monitoring period, a few sites have increased in stem numbers, likely 
as a result of exclusion of livestock (USFS 2004, p. 629).
Sacramento Mountains Thistle (Cirsium vinaceum) Recovery Plan
    The main objective of the Sacramento Mountains Thistle Cirsium 
vinaceum Recovery Plan (1993) is to protect and manage the habitats 
necessary to sustain viable populations of the species. It recommends 
the following three criteria to meet the plan's goal to delist C. 
vinaceum:
    (1) Acquire water rights specifically for the maintenance of 
travertine spring habitats at a minimum of 30 percent of the occupied 
spring localities, including at least 1 occupied spring locality in 
each of the 20 known canyons of occurrence;
    (2) Develop habitat management plans to alleviate threats to the 
species and ensure permanent protection of at least 75 percent of the 
known occupied habitats, according to steps outlined in the plans. 
Sites should include both core populations at springs, as well as other 
occupied riparian habitats. Unoccupied stream habitat downstream of 
occupied springs should be protected for future colonization by Cirsium 
vinaceum; and
    (3) Establish a 10-year monitoring and research program to 
demonstrate the effectiveness of management implemented under the 
plans.
    No portion of criterion (1) has been met. The State of New Mexico 
owns the State's water, as determined by the United States v. New 
Mexico case of 1978 (438 U.S. 696, 98 S. Ct. 3012). Federal land 
managers in New Mexico do not own the water located on Federal lands, 
and therefore cannot deny a claim of a legitimate beneficial use of a 
water right. However, a land manager can designate the point of 
diversion according to a claim of the water right. In July 2007, the 
State of New Mexico adopted legislation establishing a strategic water 
reserve to manage water for interstate stream augmentation to benefit 
threatened or endangered aquatic or obligate riparian species (NM ST 
Sec.  72-14-3.3, 2007). This law may be applicable to protect Cirsium 
vinaceum habitats. Federal agencies are eligible to acquire such State-
based water rights to benefit threatened or endangered aquatic or 
obligate riparian species; however, to date, no action agency has 
acquired or attempted to acquire water rights to benefit C. vinaceum. 
Where C. vinaceum is not exclusively associated with riparian habitats 
and is not located within river reaches that involve stream 
augmentation or interstate stream compacts, this recent law may not 
apply. This would eliminate most occupied C. vinaceum sites, 
particularly at its upland spring and travertine shelf habitats. Also, 
the New Mexico State Engineer has the ability to protect a water 
resource to further a ``State Conservation Goal,'' but this has not 
been applied to protect any C. vinaceum sites.
    The development of management plans to alleviate threats and ensure 
permanent protection of at least 75 percent of known occupied Cirsium 
vinaceum habitats pursuant to criterion (2) has not been achieved. 
Although management plans have been developed by the Lincoln National 
Forest to address threats to C. vinaceum from forestry practices, 
livestock grazing, and trampling by recreationists, the plans have not 
resulted in permanently protecting 75 percent of the species' occupied 
habitats. As described in the ``Summary of Information Pertaining to 
the Five Factors'' below, exclosures designed to protect some habitats 
occupied by C. vinaceum from trampling and predation have not been 
consistently maintained and have not been used correctly, and livestock 
grazing utilization standards and rotation dates have not been 
consistently enforced. As a result, even in areas where protection has 
been planned and attempted, C. vinaceum has been impacted. In addition, 
C. vinaceum continues to be impacted by highway maintenance activities, 
drought, and an emerging threat of insect predation. These additional 
threats have not been addressed by management plans, and permanent 
protection of at least 75 percent of the known occupied habitats has 
not been ensured.
    While criterion (3) has not been explicitly met, it has been 
addressed in concept by continuing studies of Cirsium vinaceum 
population dynamics, ecology, and response to the mitigation of some 
threats, such as livestock grazing and trampling. For example, 
monitoring has shown that properly maintained and used exclosures 
increase the numbers of C. vinaceum, allowing recovery at sites. The 
recovery plan also recommends developing new information for biological 
factor and threat analysis. Of relevance here is the need for research 
on measures to control insect predation on C. vinaceum.

Summary of Information Pertaining to the Five Factors

    Section 4 of the Act (16 U.S.C. 1533) and implementing regulations 
(50 CFR part 424) set forth procedures for adding species to, removing 
species from, or reclassifying species on the Federal Lists of 
Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of 
the Act, a species may be determined to be endangered or threatened 
based on any of the following five 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.
    We must consider these same five factors in delisting a species. We 
may delist a species according to 50 CFR 424.11(d) if the best 
available scientific and commercial data indicate that the species is 
neither endangered nor threatened for the following reasons:
    (1) The species is extinct;
    (2) The species has recovered and is no longer endangered or 
threatened; or
    (3) The original scientific data used at the time the species was 
classified were in error.
    A species is ``endangered'' for purposes of the Act if it is in 
danger of extinction throughout all or a ``significant portion of its 
range,'' and is ``threatened'' if it is likely to become

[[Page 30761]]

endangered within the foreseeable future throughout all or a 
``significant portion of its range.'' For the purposes of this 
analysis, we will evaluate whether the currently listed species, 
Cirsium vinaceum, should be considered threatened or endangered. Then 
we will consider whether there are any portions of the range of C. 
vinaceum in which the status of the species differs from that 
determined for the species rangewide.
    The Act does not define the term ``foreseeable future.'' However, 
in a January 16, 2009, memorandum addressed to the Acting Director of 
the Service, the Office of the Solicitor, Department of the Interior, 
concluded, ``* * * as used in the [Act], Congress intended the term 
`foreseeable future' to describe the extent to which the Secretary can 
reasonably rely on predictions about the future in making 
determinations about the future conservation status of the species.'' 
In a footnote, the memorandum states, ``In this memorandum, references 
to `reliable predictions' are not meant to refer to reliability in a 
statistical sense. Rather, I use the words `rely' and `reliable' 
according to their common, non-technical meanings in ordinary usage. 
Thus, for the purposes of this memorandum, a prediction is reliable if 
it is reasonable to depend upon it in making decisions'' (M-37021, 
January 16, 2009). The majority of Cirsium vinaceum habitat is on land 
within the Lincoln National Forest. This land is publicly owned and 
managed by the USFS. The USFS manages the land for multiple uses, 
including livestock grazing and recreation. Consderable data are 
available on the impacts such activities have had on C. vinaceum, and 
reliable predictions can be made concerning future impacts to the 
species under USFS management.
    In making this finding, we evaluated the best scientific and 
commercial information available to determine whether delisting Cirsium 
vinaceum is warranted. This information includes the updated petition 
and associated documents, data from the 1990 through 2007 surveys 
(Barlow-Irick 2005, 2007, 2008), recent reports by Sivinski (2007, 
2008) and the USFS (2008), as well as other information available to 
us, to determine whether delisting C. vinaceum is warranted. The 
following analysis examines the five factors described in section 
4(a)(1) of the Act and those activities and conditions currently 
affecting C. vinaceum, or likely to affect the species within the 
foreseeable future.

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

Availability of Water
    Cirsium vinaceum is an obligate wetland species that requires 
surface or immediately subsurface water flows. It occurs only on water-
saturated substrates of springs and seeps on hillsides and valley 
bottoms. Loss of available water at C. vinaceum sites has been observed 
to lead to retractions of occurrence boundaries, a reduction in the 
numbers of individuals, and, in some cases, a loss of all plants at 
sites (USFS 2003, pp. 42-43; Barlow-Irick 2007, pp. 1-2). Study results 
indicate that declining and extirpated C. vinaceum sites are more 
frequently found in drier conditions than are sites with stable or 
increasing populations (Barlow-Irick 2007, pp. 1-2). Loss of water from 
C.vinaceum habitat occurs both naturally and as a result of human 
impacts that cause water diversion directly and indirectly. Examples of 
naturally occurring water loss include changes in precipitation 
patterns and watershed condition, as well as shifts in travertine 
deposits and slopes (USFS 2003, pp. 42-43). Water diversion by roads, 
trails, and spring development are examples of loss of water flow to 
occupied sites due to human activity (USFS 2003. pp. 42-43).
    Natural water loss. In the current decade, Cirsium vinaceum has 
experienced some drought conditions. Water flow at a number of springs 
occupied by C. vinaceum has declined substantially. Monsoonal summer 
precipitation can be very patchy, with some areas receiving 
considerably less rainfall than others. While precipitation data 
compiled by the Western Regional Climate Center for Cloudcroft indicate 
that there was a shortfall of over 20 percent in mean rainfall in only 
1 of the last 15 years (1999) (USFS 2003, pp. 53--54), the seasonal 
distribution of yearly precipitation is significant and can result in 
temporary drought conditions for C. vinaceum.
    Monitoring of Cirsium vinaceum has shown a simple and direct 
relationship between water availability in suitable habitat and numbers 
and extent of plants in occurrences (Huenneke, 1996, pp. 149--150). As 
water flow has been observed to decline at springs, decreases in plant 
numbers and the size of occurrences have occurred. The situation has 
been observed to reverse when increased water is available (USFS 2003, 
pp. 55-56). Dry periods can also increase the effects of livestock 
trampling and herbivory on C. vinaceum when other water and forage 
plants are not available. Springs and creeks provide a majority of the 
watering sites for both livestock and wildlife species, especially elk. 
These wet sites are subject to trampling and hoof damage, and receive 
especially heavy use during drought periods, when neither water nor 
green forage are readily available elsewhere. At the end of the summer 
grazing season in October, livestock water can again be in short 
supply, and impacts to C. vinaceum may increase as a result (USFS 2003, 
p. 56).
    Water diversion due to current activities. Appropriation of water 
rights from springs for a use recognized by the State of New Mexico as 
beneficial, such as for livestock, farming, domestic, or recreational 
facilities, typically uses points of diversion that curtail natural 
surface flows, and thus may negatively impact Cirsium vinaceum. 
Additionally, the original C. vinaceum listing rule described an 
unauthorized 1,900 ft (579 m) long pipeline and cement spring box 
constructed at a C. vinaceum site, which negatively impacted nearby 
plants by impeding water flow (52 FR 22933; June 16, 1987). This 
unauthorized development of a spring near Bluff Springs resulted in an 
84-percent loss of C. vinaceum at one site, from 300 plants in 1984 to 
47 plants in 1991 (Service 1993, p. 29).
    Drainage under roads was improved in Water Canyon and the Rio 
Pe[ntilde]asco in a 2001-2002 riparian improvement project. Sites that 
were formerly occupied by Cirsium vinaceum were returned to conditions 
suitable for reoccupation by the species with the increased water 
availability afforded by this alteration, resulting in the rehabitation 
of these areas by the species (USFS 2004, p. 626).
    Increased water diversion due to future population growth. The 
human population in Otero County, New Mexico, increased by 20 percent 
from 1990 to 2000, and is expected to increase another 17.3 percent 
between the years 2000 and 2030 (University of New Mexico 2004, pp. 1-
3). An increasing human population and its associated agricultural and 
economic activities will require additional water from this relatively 
dry region. For example, between 2010 and 2040, the City of Alamogordo 
estimates its water demand will increase from 7,609 acre feet per year 
to 10,375 acre feet per year (Office of the State Engineer 2003, pp. 3-
4). Aquifers in the Sacramento Mountains are susceptible to impacts 
from existing water rights. Development of additional water rights 
could potentially dewater Cirsium vinaceum water sources, and this 
constitutes a

[[Page 30762]]

threat to the species in the foreseeable future. As discussed above, 
the State of New Mexico adopted legislation establishing a strategic 
water reserve to manage water for interstate stream augmentation to 
benefit threatened or endangered aquatic or obligate riparian species 
(NM ST Sec.  72-14-3.3, 2007). Federal agencies are eligible to acquire 
such State-based water rights to benefit threatened or endangered 
aquatic or obligate riparian species, which may help to mitigate 
impacts of increased water diversion in the future. However, to date, 
no action agency has acquired or attempted to acquire water rights to 
benefit C. vinaceum.
    In summary, while water diversion due to current activities does 
not appear to be a widespread threat at the current time, localized 
impacts have been observed and increased use of water constitutes a 
threat in the foreseeable future. Natural loss of water is currently a 
threat to Cirsium vinaceum. We will continue to monitor water 
availability for C. vinaceum.
Trampling by Livestock
    Improper livestock grazing, as it relates to trampling of habitat, 
was recognized as a threat to Cirsium vinaceum in the 1987 listing rule 
(52 FR 22933; June 16, 1987). In that notice, the authors report that 
many sites previously occupied by C. vinaceum appear to be suitable for 
habitation by the species; however, the populations that formerly 
occurred there had been reduced or eliminated by livestock impacts (52 
FR 22933; June 16, 1987). Livestock have the potential for large 
impacts to the species, both by trampling, discussed below, and by 
predation through grazing, discussed under Factor C.
    Ninety-five percent of Cirsium vinaceum localities occur on USFS 
lands within grazing allotments accessed by livestock. Cirsium vinaceum 
habitats on travertine springs and in the valley bottoms provide the 
majority of watering locations for livestock and elk, subjecting this 
fragile habitat to frequent trampling. One site at Silver Springs on 
the James Allotment has been closed to livestock since 1995. The C. 
vinaceum population in this allotment has grown in response to being 
rested from livestock, and recent information indicates that this 
single allotment contained 36 percent of all flowering stems for the 
species (USFS 2003, p. 44).
    Trampling of Cirsium vinceum and its habitat by livestock and 
humans has caused damage to travertine formations and outflow creek 
beds, resulting in altered water flow to C. vinaceum habitat (USFS 
2003, pp. 42-44). Damage to travertine crusts can adversely affect 
surfaces critical to the successful germination and reproduction of C. 
vinaceum and inhibit C. vinaceum seed movement and dispersal by flowing 
water (USFS 2003, pp. 43-44). During drought, the effects of compaction 
and trampling in drying travertine C. vinaceum sites may be even more 
severe. This damage causes a loss of normal soil structure and 
permeability that may inhibit processes necessary for the development 
and establishment of new plants when water flows return to these sites. 
Trampling of C. vinaceum can reduce tissue needed for metabolism, and 
damage seedlings, rosettes, and flowering stalks (USFS 2003, pp. 43-
44). Broken flowering stalks render affected C. vinaceum incapable of 
reproduction (USFS 2007, pp. 20-21).
    Prior to listing, instances were observed in which trampling from 
livestock grazing had severely impacted Cirsium vinaceum (USFS 2003, p. 
46). Todsen (1976, p. 1) reported that the C. vinaceum population in 
Silver Springs Canyon had only a few intermittent plants on the side of 
a fence where livestock were permitted to graze. In 1978, the USFS 
reported that C. vinaceum in a wet meadow above Bluff Springs occurred 
only within a small fenced-in area that excluded livestock and not in 
the adjacent grazed habitat. The USFS later reported in 1984 that 
recent livestock exclusions from some habitats at Silver Springs, Bluff 
Springs, and Rio Pe[ntilde]asco had ``led to a remarkable increase in 
numbers of Cirsium vinaceum,'' while the population in Lucas Canyon was 
``considerably smaller'' because of livestock (USFS 2003, p. 44). In a 
Lucas Canyon study, C. vinaceum rosettes were markedly smaller at a 
site grazed by livestock (mean rosette diameter approximately 4.85 to 
8.87 in (12.3 to 22.5 cm)) adjacent to an excluded population subject 
only to grazing by elk (mean rosette diameter approximately 20.27 to 
29.17 in (51.5 to 74.1 cm)). Furthermore, this discrepancy was observed 
for 24 months after grazing pressure had been alleviated (Thomson and 
Huenneke 1990, pp. 9-10).
    The effects of trampling have resulted in declines or disappearance 
of Cirsium vinaceum at sites (Fletcher 1979, p. 3; 52 FR 22933; June 
16, 1987). The USFS has minimized some of the trampling impacts of 
concentrated use by livestock and elk by enclosing C. vinaceum habitats 
with fences; however, no new fences or protected areas have been 
created since 1999. Exclosures currently cover approximately 290 ac 
(120 ha) on USFS lands. These exclosures protect about one-half of the 
habitat occupied by C. vinaceum from negative impacts associated with 
livestock use and have resulted in increased numbers of C. vinaceum 
within many fenced sites (Service 2005, p. 698). Fences that are part 
of livestock exclosures are occasionally knocked down or left open, 
resulting in trampling of C. vinaceum (USFS 2007, p. 4). Additionally, 
several exclosures were never finished after their construction was 
initiated, and others have not been maintained, allowing livestock 
access to C. vinaceum habitats (Barlow-Irick 2008, p. 1).
    The USFS has excluded livestock from many Cirsium vinaceum habitats 
with fencing, often aiding in the recovery of those populations. For 
example, a site in Hubbell Canyon that contained no known C. vinaceum 
in 1984 was able to support approximately 500 plants shortly after an 
exclosure was constructed in 1991 (USFS 2003, p. 62). A grazing 
exclosure was built around a site in Lucas Canyon that contained 350 
plants in 1984, but expanded to 3,414 C. vinaceum by 1991. A wet meadow 
above Bluff Springs that contained only one C. vinaceum plant in 1976 
has supported hundreds of C. vinaceum since 1984, when a livestock 
exclosure was built (USFS 2003, p. 62). At present, 40 of 86 sites 
located within the Lincoln National Forest have been fenced to exclude 
livestock or are considered to be inaccessible to livestock due to 
steep slopes or cliffs (Todsen 1976, p. 1; Service 2005, p. 698).
    As previously discussed, exclosures protect Cirsium vinaceum from 
several grazing impacts, including trampling of plants and habitat, and 
herbivory of rosettes, flowering stalks, and seedlings. They have 
allowed C. vinaceum populations to recover inside and even expand 
beyond fenced areas in a few cases (Service 2005, p. 698). However, 
livestock exclosures around C. vinaceum habitats have not been 
consistently maintained. Due to unmaintained fences, some exclosures 
are available for the gathering or relocation of cattle (USFS 2003, p. 
53; 2007, p. 20; Barlow-Irick 2008, p. 1). Two of the larger fenced 
areas containing C. vinaceum habitats have been and continue to be used 
as grazing exclosures during the grazing season, and then used to 
gather cattle at season's end (USFS 2003, p. 53; Service 2010, p. 1). 
Such practices have had adverse impacts on C. vinaceum plants and sites 
by way of increased grazing and presence of livestock which destroy

[[Page 30763]]

seedlings, fragile travertine habitat, and the flowering stalks of 
plants, thereby preventing reproduction by affected plants (Service 
2010).
    In summary, although many sites have been protected, up to 50 
percent of sites are still subject to grazing pressures, and those that 
are fenced may be impacted into the future as fences fall into 
disrepair or are vandalized (Service 2010, p. 1). Furthermore, if 
Cirsium vinaceum were to be delisted, there is little likelihood that 
maintenance and construction of exclosures would continue in the 
future. Therefore, livestock trampling is a significant, ongoing threat 
to C. vinaceum that is expected to continue in the foreseeable future.
Recreation
    Cirsium vinaceum at Bluff Springs are impacted by trampling due to 
human recreation. The Land and Resource Management Plan for the Lincoln 
National Forest (2004, p. 628) prescribes managing Bluff Springs for 
dispersed recreation, while providing for C. vinaceum management. 
Cirsium vinaceum stands in this area have been fenced and foot trails 
rerouted since 1983 to protect this population (USFS 2003, p. 46). Soon 
after construction of the fence, C. vinaceum increased at this 
location, but since 1995, the number of individuals has fluctuated, 
with an overall downward trend. In 2005, the number of flowering stems 
was 486, less than one-third of the 1,600 plant total in 1995. 
Recreational users at Bluff Springs continue to impact C. vinaceum 
annually as users trespass into the fenced area and vandalize plants 
and trample habitat (Barlow-Irick 2008, p. 1). Impacts from 
recreational users continue to be a threat to C. vinaceum at Bluff 
Springs, but are not known to be impacting other populations. Thus, 
recreation is not considered a threat to the species rangewide now or 
in the foreseeable future.
Logging
    Cirsium vinaceum sites have been subjected to direct and indirect 
impacts from land uses that damage travertine substrates and their 
hydrological characteristics. Some of the roads and trails that support 
regional access for timber harvest and management, ranching operations, 
recreation, and residential developments occur in, or adjacent to, C. 
vinaceum habitats. Prior to, and at the time of listing, there was 
concern that ground disturbance from road construction and logging 
could potentially impact C. vinaceum habitats if project planning for 
logging operations did not consider avoiding or reducing impacts to the 
species (Fletcher 1979, p. 3; 52 FR 22933; June 16, 1987). Indirect 
effects from logging, such as road construction, siltation, alteration 
of hydrologic flows, increased surface water runoff, decreased 
infiltration, and higher sediment loads in streams, are additional 
potential impacts to C. vinaceum habitat that can result from forestry 
activities (Service 1993, p. 28). At present, our information indicates 
that the USFS applies a minimum 200 ft (61-m) protective buffer around 
C. vinaceum occurrences during forest management activities and 
excludes all equipment from wetland areas with C. vinaceum habitat 
(Service 2002, p. 3; Service 2004, pp. 4-13). These buffers are in 
accordance with the guidelines of the Lincoln National Forest's Interim 
Management Plan (USFS 1989, p. 4). This active management by the USFS 
has mitigated effects of ground disturbance on USFS lands, where 95 
percent of the species is located. We do not consider ground 
disturbance from logging or its associated direct and indirect effects 
to be a current threat to C. vinaceum.
Climate Change
    The Intergovernmental Panel on Climate Change (IPCC) states that 
warming of the climate system is unequivocal based on observations of 
increases in global average air and ocean temperatures, widespread 
melting of snow and ice, and rising global average sea level (2007a, p. 
5). For the next two decades, a warming of about 0.4 degrees Fahrenheit 
([deg]F) (0.2 degrees Celsius ([deg]C)) per decade is projected (IPCC 
2007a, p. 12). Temperature projections for the following years 
increasingly depend on specific emission scenarios (IPCC 2007a, p. 13). 
Various emissions scenarios suggest that average global temperatures 
are expected to increase by between 1.1[deg]F and 7.2[deg]F (0.6[deg]C 
and 4.0[deg]C) by the end of the 21st century, with the greatest 
warming expected over land (IPCC 2007a, p. 13). Warming in western 
mountains is projected to cause decreased snowpack, more winter 
flooding, and reduced summer flows, exacerbating competition for over-
allocated water resources (IPCC 2007b, p. 14). The IPCC reports that it 
is very likely that hot extremes, heat waves, and heavy precipitation 
and flooding will increase in frequency (IPCC 2007b, p. 18). Because 
Cirsium vinaceum occupies a relatively small area of specialized 
habitat, it may be vulnerable to climatic changes that could decrease 
suitable habitat.
    We find that there are limitations in currently available data and 
climate models. The information available on climate change indicates 
that New Mexico will be impacted by the effects of climate change 
(Agency Technical Work Group 2005, p. 1). However, reliable predictive 
models have not yet been developed for use at the local scale in New 
Mexico's Sacramento Mountains, and there is little certainty regarding 
the timing and magnitude of the resulting impacts. There is currently 
no information specific to the effects of climate change on Cirsium 
vinaceum or its habitat; however, based on projections made by the 
IPCC, we consider climate change to be a potential exacerbating factor, 
worsening the impacts of other known threats. These threats include 
habitat degradation from water loss resulting from prolonged periods of 
drought and increased temperature, and the allocation of water for use 
by the human population and livestock in the area, as well as any 
number of unforeseen compounding effects. In summary, we do not 
currently consider climate change itself to be a factor affecting C. 
vinaceum's persistence, because the information available on the 
subject is insufficiently specific to the species. However, we consider 
climate change to be a potential exacerbating factor and will continue 
to evaluate new information on the subject as it becomes available.
    In summary for Factor A, we continue to consider water availability 
and trampling caused by livestock to be threats to Cirsium vinaceum and 
its habitat currently and in the foreseeable future. We find the 
information available on climate change to be insufficiently specific 
to C. vinaceum to indicate with certainty that it is affecting the 
species and its habitat at this time; however, we will continue to 
evaluate the most up-to-date information on the subject as it becomes 
available.

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

    We do not have any data suggesting that Cirsium vinaceum is, or may 
be, overutilized for commercial, recreational, scientific, or 
educational purposes. Cirsium vinaceum seeds and seed heads have been 
collected for research projects intended to understand and improve the 
status of the species. The species' current level of State and Federal 
protection requires permits from the Service, USFS, and the State of 
New Mexico for such research. At current levels of collection, we do 
not consider overutilization for commercial, recreational, scientific, 
or educational purposes to be a threat

[[Page 30764]]

currently or in the foreseeable future. If the species were delisted, 
permits for collection would continue to be required by the USFS and 
the State of New Mexico.

Factor C. Disease or Predation

Insect Predation
    Native insect population fluctuations and invasions of nonnative 
insects may impact the condition, reproduction, and distribution of 
Cirsium vinaceum. Cirsium vinaceum is host to an undetermined number of 
native and nonnative insect species that prey upon the plant and its 
flower heads. Native insect seed predators can consume from 17 to 98 
percent of C. vinaceum's seed production within a population. Observed 
seed predators include Paracantha gentilis, a native specialist 
Tephritid gall fly; Platyptilia carduidactyla, the native Pterophorid 
artichoke plume moth; Euphoria inda, a native generalist Scarabaeid 
bumble flower beetle; and Rhinocyllus conicus, an introduced 
Curculionid seed-head weevil (Sivinski 2007, pp. 2-14; Sivinski 2008, 
pp. 1-11). A fifth insect predator, Lixus pervestitus, the native 
Curculionid stem borer weevil, was first detected during field surveys 
in 2006 and 2007 (Sivinski 2007, pp. 8-13; Sivinski 2008, pp. 7-11). 
Thus far, L. pervestitus has not been found on C. vinaceum outside of 
the Silver Springs population, and little is known about this insect 
species in New Mexico (Sivinski 2008, pp. 10-11). Sivinski studied 
insect seed predation and herbivory of C. vinaceum in September of 
2006, 2007, and 2008 in four populations: Silver Springs, Bluff 
Springs, Upper Rio Pe[ntilde]asco, and Scott Able Canyon. These insect 
species damaged flower heads or caused premature stem death in all 
years of the study. By September 2007, these insects had collectively 
damaged flowering stalks in significant proportions--up to 98 percent 
within the Silver Springs site, 80 percent of the Bluff Springs site, 
up to 66 percent in the Upper Rio Pe[ntilde]asco site, and 90 percent 
of the Scott Able Canyon site (Sivinski 2007, p. 12). After predation 
by these insects, seed production was significantly reduced in 2007, 
particularly as a result of L. pervestitus in the Silver Springs 
population.
    Lixus pervestitus is likely a recent immigrant to the Sacramento 
Mountains and represents a significant new threat to the long-term 
persistence of the species (Sivinski 2007, p. 13). Lixus pervestitus 
was responsible for killing thousands of Cirsium vinaceum at Silver 
Springs in September of 2006, 2007, 2008, and 2009, before most of the 
flowers had set seed, resulting in nearly complete die-off of flowering 
stems each of these years (Sivinski 2008, p. 9; 2009b, p. 1). Insect 
damage to the Silver Springs population was two-fold; Rhinocyllus 
conicus and Paracantha gentilis reduced seed production earlier in the 
flowering season, then L. pervestitus damaged flowering stems into 
early fall (Sivinski 2007, p. 13). The population totaled 8,727 stems 
in the summer of 2007, and by the end of September of the same year, 98 
percent of these stems were prematurely dead or dying. The timing of L. 
pervestitus' attack left seed maturity and production to only the 
earliest blooming flower heads, greatly reducing this population's 
reproductive output for the season. Immature C. vinaceum rosettes were 
not significantly affected by any native or nonnative insects during 
the study (Sivinski 2007, p. 14). However, this recent addition of this 
invasive seed predator, L. pervestitus, will likely further decrease 
seed production and increase the threat to the persistence of some C. 
vinaceum populations. Small C. vinaceum sites may be more likely to be 
extirpated because of seed limitations, and some sites could remain 
unoccupied if adjacent sites of C. vinaceum are producing and 
dispersing fewer seeds.
    The recovery plan for C. vinaceum identified Rhinocyllus conicus as 
a potential threat to the species (Service 1993, p. 6). Rhinocyllus 
conicus, indigenous to Eurasia, was intentionally introduced to North 
America in 1969 as a biological control agent for the noxious weed 
Carduus nutans (musk thistle). It subsequently spread to at least 26 
States on both C. nutans and native thistle species, and is also 
frequently distributed by deliberate introduction on both private and 
public lands (Dodge 2005, p. 6). The ability of R. conicus to attack 
native thistle species and decrease their seed production has been 
documented (Dodge 2005, pp. 15-38). A preliminary field study of the 
presence and damage of R. conicus in the Silver Springs area found the 
weevil using 63.8 percent of C. vinaceum flower heads in mid-July 2007 
(Sivinski 2008, p. 9).
    The reduction of seed production due to seed predators could have 
long-term effects on the viability of populations. Although Cirsium 
vinaceum can reproduce asexually, that is, without the genetic 
contribution of another C. vinaceum individual, it is not known how 
long a site can persist with little or no seed production (Sivinski 
2009a, p. 1). Asexual reproduction can be advantageous in a stable 
environment because it requires less energy; however, with this form of 
reproduction, genetic material from only one plant is required, so 
clones are produced. Populations that are reduced to recruitment via 
only asexual reproduction could suffer from loss of genetic variation. 
The resulting clones may not be able to adapt to even moderate changes 
to their environment, including the arrival of new insect predators or 
diseases. Many C. vinaceum sites are small or occur on marginal 
habitats where they can disappear during extreme conditions. If insect 
predation eliminates seed production in larger populations, such as 
Silver Springs, the smaller patches that temporarily disappear may not 
be re-established. In addition, genetic exchange through sexual 
reproduction between sites would discontinue and further reduce genetic 
variability of the species.
    In summary, insect seed predation and herbivory of Cirsium vinaceum 
eliminated seed production in the majority of plants at all of the 
study sites in all 3 years of the study. This condition is either very 
likely to spread to other C. vinaceum sites, or is already occurring at 
other sites. For these reasons, we find that insect predation, even 
within sites containing large numbers of C. vinaceum, represents a 
significant new category of threat currently and in the foreseeable 
future.
Livestock Grazing
    Grazing of Cirsium vinaceum by livestock and elk was described as 
minimal in the 1987 listing determination (52 FR 22933). Subsequent 
monitoring of herbivore impacts at several C. vinaceum sites has 
determined that this species is a forage plant for livestock and, 
although not preferred, appears to be part of the cattle diet 
throughout its range (USFS 2003, p. 49). C. vinaceum rosettes that have 
been grazed by livestock early in the growing season have the ability 
to make compensatory growth if grazing ceases; however, flower stems 
that are destroyed or severely damaged by grazing later in the season 
do not recover, and the plant dies without producing seeds (USFS 2003, 
p. 49). Grazing can adversely impact growth, vigor, seedling 
establishment, and reproductive output, and small C. vinaceum sites may 
be more vulnerable and at a higher risk of extirpation than larger 
sites (USFS 2003, p. 55).
    Although Cirsium vinaceum populations have been documented to 
recover within a few weeks from light grazing on fewer than 10 percent 
of plants, grazing of the plants' flowering stalk and leaves of 
rosettes can cause

[[Page 30765]]

total loss of reproduction and can lead to the loss of the affected 
population (USFS 2003, p. 55). Cirsium vinaceum's low tolerance for 
freezing and drought may compound the effects of livestock grazing. 
Herbivory of seedlings, particularly in spring, may reduce the density 
of plants and leave seedlings more exposed to low temperatures. 
Livestock grazing during periods of long-term drought may also affect 
C. vinaceum's ability to recover reproductive capability. Barlow-Irick 
(2005, p. 1) surveyed 85 C. vinaceum monitoring sites in the late 
summer of 2005, after the first wet season following several years of 
drought. The overall number of flowering C. vinaceum was still 
decreasing, but five sites exhibited increased numbers of flowering 
individuals. These five sites were excluded from livestock. 
Furthermore, long-term monitoring trends show correlations between C. 
vinaceum, herbivores, and water availability. Cirsium vinaceum 
populations with above-average numbers of reproductive individuals are 
associated with sites that exhibit consistently greater levels of water 
flow and lower levels of livestock grazing, compared to sites with 
lower average water flows and increased levels of grazing (Barlow-Irick 
2007, p. 1).
    Livestock grazing in USFS allotments containing Cirsium vinaceum 
habitats is permitted from May to October, and herbivory on C. vinaceum 
occurs in all of these months (USFS 2007, p. 20). During a 1992 study 
of livestock grazing on C. vinaceum, use peaked in June, with 76 
percent of accessible rosettes grazed, and again in September and 
October, with over 90 percent of accessible rosettes grazed (USFS 2003, 
p. 48). Although C. vinaceum may be able to persist under this grazing 
regime, there are recognized adverse effects to the species (USFS 2003, 
pp. 54--57). Adverse effects include significant differences between 
rosette size and leaf length between grazed and ungrazed occurrences, 
with the smaller measurements for both found in occurrences grazed by 
livestock. A reduction of plant tissue and size can adversely impact 
growth, vigor, reproductive potential, and the ability of the plants to 
compete with invasive weeds. C. vinaceum has also been observed to only 
make one attempt per rosette at producing a flowering stalk. If that 
stalk is lost to herbivory, reproductive potential for that plant is 
lost (USFS 2003, pp. 54--57).
    Grazing practices in the Sacramento Allotment are sufficiently 
significant to influence the general status of Cirsium vinaceum because 
this allotment contains the majority of C. vinaceum sites and 
individuals. In 2001, the Sacramento Grazing Allotment contained 74 of 
86 occupied C. vinaceum sites found on the Lincoln National Forest. 
This represented a total of 96 percent of all C. vinaceum in 2001 (USFS 
2003a, p. 53). Thirty-eight of these 74 sites are either fenced to 
exclude livestock or are considered to be inaccessible to livestock 
(USFS 2003, p. 53). As of 2007, 68 of the 75 occupied sites were within 
the Sacramento Grazing Allotment, with approximately 62 percent of the 
total number of C. vinaceum stems for the species (Barlow-Irick 2007, 
p. 1). In March 2007, the USFS proposed to extend the grazing rotation 
to allow cattle to be present throughout the entire summer growing 
season (May to October) on portions of the allotment containing C. 
vinaceum. The previous arrangement placed livestock in one pasture from 
May to August, and then deferred the same livestock to another pasture 
from August to October, thus reducing C. vinaceum's exposure to 
livestock approximately one-half of the time. Season-long presence of 
livestock within both pastures would increase livestock impacts to C. 
vinaceum during times when the species could benefit from grazing 
deferral. The extended presence of livestock may adversely affect 
seedlings and their rate of successful establishment and recruitment 
into the population (USFS 2007, p. 20). Moreover, broken or consumed 
flowering stems render affected C. vinaceum incapable of reproduction 
(USFS 2003, p. 55). As described under Factor A, longer exposure to 
livestock also increases the chances of damage to travertine 
substrates, water flow channels, and wetlands upon which C. vinaceum 
depends (USFS 2007, p. 20). As of publication date, this proposal is 
under consultation with the Service.
    Established thresholds for forage of Cirsium vinaceum have been 
exceeded on USFS lands many times, especially during drought years when 
livestock congregate in wetland C. vinaceum habitats or where forage 
production is greater than in dry uplands (USFS 2003, pp. 59-67). Very 
dry conditions early in the summer of 1996 led to an emergency 
consultation with the Service that resulted in use of temporary 
electric fencing to minimize impacts to C. vinaceum (USFS 2003, p. 63). 
At other times, the USFS has allowed grazing permittees 30 days or more 
to remove their livestock after use thresholds had been reached or 
exceeded (USFS 2003, pp. 59-60). Exceeding threshold levels can have 
adverse effects to C. vinaceum plants and sites, as increased grazing 
pressure further destroys the flowering stalks of plants and thereby 
prevents successful reproduction by affected plants.
    In summary, although many Cirsium vinaceum sites have been 
protected, up to 50 percent of sites are still subject to livestock 
herbivory, and those that are fenced may be impacted into the future as 
fences fall into disrepair or are vandalized (Service 2010, p. 1). 
Furthermore, if C. vinaceum were to be delisted, past history indicates 
there is little reason to expect that adequate maintenance and 
construction of exclosures would continue in the future. Therefore, 
livestock herbivory is a significant, ongoing threat to C. vinaceum 
that will continue in the foreseeable future.
Disease
    Barlow-Irick (2007, p. 1; 2008, p. 1) recently reported that the 
large population of Cirsium vinaceum in Firman Canyon and isolated 
individuals in other populations appeared to have unspecified symptoms 
of disease during 2007. This potential disease was not identified, nor 
had any positively identified disease been reported in any C. vinaceum 
population. No specific assessment of potential disease threats has 
been conducted. We do not currently consider disease to be a threat to 
C. vinaceum; however, we intend to continue monitoring populations for 
impact due to this factor.
    In summary for Factor C, we consider predation by insects and 
livestock to be threats to Cirsium vinaceum currently and in the 
foreseeable future. We do not currently consider disease to be a threat 
to the species; however, we need to continue monitoring for impacts due 
to this factor.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    Cirsium vinaceum is currently listed as threatened under the Act. 
The Act and its implementing regulations at 50 CFR 17.71 and 17.72 
establish a series of general prohibitions and exceptions that apply to 
all threatened plants. All trade prohibitions of section 9(a)(2) of the 
Act, implemented by 50 CFR 17.71, apply. These prohibitions, in part, 
make it illegal for any person subject to the jurisdiction of the 
United States to import or export, to transport in interstate or 
foreign commerce in the course of a commercial activity, or to sell or 
offer for sale this species in interstate or foreign commerce, or to 
remove and reduce to possession the species from areas under Federal 
jurisdiction. In addition, for plants

[[Page 30766]]

listed as endangered, the Act prohibits malicious damage or destruction 
on areas under Federal jurisdiction and further prohibits the removal, 
cutting, digging up, or damaging or destroying of such plants in 
knowing violation of any State law or regulation, including State 
criminal trespass laws. Section 4(d) allows for the provision of such 
protection to threatened species through regulation. This protection 
does not currently apply to C. vinaceum.
    As with all federally listed plants, Federal land management 
actions and other project proposals that use Federal funding or require 
a Federal permit that may affect C. vinaceum must be evaluated by the 
Federal action agency in consultation with the Service under section 
7(a)(2) of the Act. Through consultation, the Federal action agency 
ensures that an action will not likely jeopardize C. vinaceum or 
destroy or adversely modify critical its designated critical habitat. 
If the proposed project is likely to jeopardize the species, the 
Service will provide the Federal action agency reasonable and prudent 
alternatives for implementing the action. Regardless of the outcome of 
this determination, the Service will also provide discretionary 
conservation recommendations that would eliminate the impacts to C. 
vinaceum or its habitat. Adoption of these measures may also contribute 
to a Federal action agency's requirements under section 7(a)(1) of the 
Act to utilize their authorites to carry out programs for the 
conservation of listed species. These procedures would not be required 
if C. vinaceum were delisted, and significant reductions in recovery 
effort and protection would likely result. As a delisted species, C. 
vinaceum would continue to be protected by the Lacey Act (83 Stat. 279-
281, 18 U.S.C. 42-44 et seq; as amended), which prohibits trade in 
wildlife and plants that have been illegally taken, possessed, 
transported, or sold. However, the Lacey Act does not afford protection 
of habitat, and were it delisted, C. vinaceum would lose its current 
level of habitat protection.
    The State of New Mexico lists Cirsium vinaceum as endangere