[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
H.R. 4315, ``21ST CENTURY ENDANGERED SPECIES TRANSPARENCY ACT''; H.R.
4316, ``ENDANGERED SPECIES RECOVERY TRANSPARENCY ACT''; H.R. 4317,
``STATE, TRIBAL, AND LOCAL SPECIES TRANSPARENCY AND RECOVERY ACT'';
AND H.R. 4318, ``ENDANGERED SPECIES LITIGATION REASONABLENESS ACT''
=======================================================================
LEGISLATIVE HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
Tuesday, April 8, 2014
__________
Serial No. 113-69
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
87-584 PDF WASHINGTON : 2015
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Washington, DC 20402-0001
COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Rauul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Caardenas, CA
Paul A. Gosar, AZ Jared Huffman, CA
Rauul R. Labrador, ID Raul Ruiz, CA
Steve Southerland, II, FL Carol Shea-Porter, NH
Bill Flores, TX Alan S. Lowenthal, CA
Jon Runyan, NJ Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Steve Daines, MT Katherine M. Clark, MA
Kevin Cramer, ND Vacancy
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Bradley Byrne, AL
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
CONTENTS
----------
Page
Hearing held on Tuesday, April 8, 2014........................... 1
Statement of Members:
Grijalva, Hon. Rauul, a Representative in Congress from the
State of Arizona........................................... 4
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 2
Prepared statement of.................................... 3
Statement of Witnesses:
Bean, Michael, Counselor to the Assistant Secretary, Fish and
Wildlife and Parks, U.S. Department of the Interior,
Washington, DC............................................. 20
Prepared statement of.................................... 22
Budd-Falen, Karen, Owner/Partner, Budd-Falen Law Offices,
Cheyenne, Wyoming.......................................... 65
Prepared statement of.................................... 66
Courtney, Steven P., Associate, National Center for
Ecological Analysis and Synthesis, Santa Barbara,
California................................................. 16
Prepared statement of.................................... 17
Holsinger, Kent, Attorney, Holsinger Law, Denver, Colorado... 75
Prepared statement of.................................... 76
Jankovsky, Hon. Tom, Commissioner, Garfield County, Colorado. 29
Prepared statement of.................................... 30
Percival, Robert V., Robert F. Stanton Professor of Law,
Director, Environmental Law Program, University of Maryland
Francis King Carey School of Law, Baltimore, Maryland...... 71
Prepared statement of.................................... 72
Ramey, Rob Roy II, Ph.D., Wildlife Science International,
Nederland, Colorado........................................ 6
Prepared statement of.................................... 8
Rauch, Sam, Deputy Assistant Administrator for Regulatory
Programs, National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, U.S. Department of
Commerce, Washington, DC................................... 25
Prepared statement of.................................... 26
Seliger, Kel, a U.S. Senator from the State of Texas......... 14
Prepared statement of.................................... 15
Additional Material Submitted for the Record:
American Loggers Council, prepared statement of.............. 54
Casperson, Hon. Tom, a U.S. Senator from the State of
Michigan, prepared statement of............................ 56
LEGISLATIVE HEARING ON H.R. 4315, TO AMEND THE ENDANGERED
SPECIES ACT OF 1973 TO REQUIRE PUBLICATION ON THE INTERNET
OF THE BASIS FOR DETERMINATIONS THAT SPECIES ARE ENDANGERED
SPECIES OR THREATENED SPECIES, AND FOR OTHER PURPOSES,
``21ST CENTURY ENDANGERED SPECIES TRANSPARENCY ACT''; H.R.
4316, TO AMEND THE ENDANGERED SPECIES ACT OF 1973 TO
IMPROVE THE DISCLOSURE OF CERTAIN EXPENDITURES UNDER THAT
ACT, AND FOR OTHER PURPOSES, ``ENDANGERED SPECIES RECOVERY
TRANSPARENCY ACT''; H.R. 4317, TO AMEND THE ENDANGERED
SPECIES ACT OF 1973 TO REQUIRE DISCLOSURE TO STATES OF THE
BASIS OF DETERMINATIONS UNDER SUCH ACT, TO ENSURE USE OF
INFORMATION PROVIDED BY STATE, TRIBAL, AND COUNTY
GOVERNMENTS IN DECISIONMAKING UNDER SUCH ACT, AND FOR OTHER
PURPOSES, ``STATE, TRIBAL, AND LOCAL SPECIES TRANSPARENCY
AND RECOVERY ACT''; AND H.R. 4318, TO AMEND THE ENDANGERED
SPECIES ACT OF 1973 TO CONFORM CITIZEN SUITS UNDER THAT ACT
WITH OTHER EXISTING LAW, AND FOR OTHER PURPOSES,
``ENDANGERED SPECIES LITIGATION REASONABLENESS ACT''
----------
Tuesday, April 8, 2014
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
----------
The committee met, pursuant to notice, at 10:04 a.m., in
room 1324, Longworth House Office Building, Hon. Doc Hastings
[Chairman of the Committee] presiding.
Present: Representatives Hastings, Bishop, Lummis,
Benishek, Tipton, Gosar, Southerland, Flores, Mullin, Daines,
Cramer, LaMalfa; Holt, Grijalva, Costa, Huffman, Shea-Porter,
and Garcia.
The Chairman. The committee will come to order. Today we
are having a legislative hearing on H.R. 4315, the ``21st
Century Endangered Species Transparency Act''; H.R. 2316, the
``Endangered Species Recovery Transparency Act''; H.R. 2317,
the ``State, Tribal, and Local Species Transparency Recovery
Act''; and H.R. 4318, the ``Endangered Species Litigation and
Reasonable Act.'' The Chair notes a presence of a quorum.
I ask unanimous consent that Mr. Neugebauer from Texas be
allowed to sit in the committee and participate in the hearing.
[No response.]
The Chairman. Without objection, so ordered. And the same
courtesy would be applied to Mr. Huizenga, if he also wants to
come and testify.
We will begin now with opening statements, as confined to
the Chairman and Ranking Member. However, I ask unanimous
consent that any Member who wants to have a statement appear in
the record have it to the committee before the close of
business today. And, without objection, so ordered.
I will now recognize myself for 5 minutes.
STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
The Chairman. Today marks the legislative phase of
updating, improving, and modernizing the Endangered Species Act
for the 21st century. It is a product of years of Committee
oversight on this 40-year-old law, which was last reauthorized
26 years ago, in 1988.
Last year I, along with my colleague from Wyoming, Mrs.
Lummis, created the Endangered Species Act Congress Working
Group. It is comprised of Republican Members from affected
States nationwide. This group held forums and received hundreds
of public comments from all sides.
In February the working group released its final report
with more than 20 recommendations. The group found that while
there is strong support for conserving endangered species,
there are key areas where improvements could be made to make
the law more effective for both species and for people. Today's
bills reflect some of those recommended improvements.
I have said it has never been my intent to introduce a
sweeping overhaul of the Endangered Species Act. I don't
believe that is the best way to go forward. Instead, the focus
needs to be on thoughtful, sensible, and targeted proposals. We
have those before us today.
First is a bill I introduced, H.R. 4315, the ``21st Century
Endangered Species Transparency Act.'' This legislation simply
requires that data used by Federal agencies for ESA listing
decisions be made publicly available and accessible through the
Internet. The last significant update to ESA was when the
Internet was in its infant stages. Posting data, supporting key
ESA decisions online will greatly enhance transparency and is
something, frankly, that should have been done a long time ago.
In my own Central Washington district, the Fish and
Wildlife Service, rather than using actual DNA data, based its
decision to list a plant called a bladderpod largely on
publicly inaccessible data from a 2006 unpublished manuscript.
Other examples include the Federal Government's citation to
taxpayer-funded studies that conclude without actual data that
listing the greater sage-grouse across 11 Western States is
warranted.
Now, whether one agrees with the conclusions that I just
cited or not, refusing to make tax-funded data available to the
American public flies in the face of transparency and good
science.
H.R. 4317, the ``State, Tribal, and Local Species
Transparency and Recovery Act,'' sponsored by our colleague
from Texas, Mr. Neugebauer, would enhance State, local, and
tribal involvement in ESA decisions. This bill would require
that before any listing decision is made, the Federal
Government must disclose all data used to States affected by
such actions. This gives States the opportunity to verify,
dispute, or complement such information, and encourages a
stronger role for States and species conservation policies.
The bill also ensures that data from local, State, and
tribal entities--those are the governments closer to the
ground--be included in ESA listing decisions.
H.R. 4316, the ``Endangered Species Recovery Transparency
Act,'' sponsored by Mrs. Lummis, would require the
administration to track and make available online the millions
of taxpayer dollars being spent on ESA-related litigation, to
give American people clear information about the time and
resources currently used to address ESA-related lawsuits.
And the final bill, introduced by Mr. Huizenga from
Michigan, would reduce taxpayer-financed attorney fees to help
ensure that resources for species protection are focused more
on species than on lucrative legal fees. It puts in place the
same reasonable hour caps on attorney fees used in another
Federal law, the ``Equal Access to Justice Act.'' This common-
sense bill would help reduce the often current exorbitant
taxpayer-funded fees, often upwards of $500 an hour, and make
them limited to the hourly rate for attorneys that prevail
against the Federal Government at $125 an hour. This is in line
with the Equal Access to Justice Act.
And just last week, at the Appropriations Committee
hearing, the Director of Fish and Wildlife acknowledged that
there could be--and I will quote--``opportunities to make
incremental improvements'' to the ESA. And that is exactly what
we are doing here, in a manner that I hope will be bipartisan.
These bills provide a starting point for this committee's
legislative efforts on the Endangered Species Act. Moving
forward with these simple, narrowly focused proposals would
help bring needed transparency for significant Federal ESA
decisions for both people and for species.
[The prepared statement of Mr. Hastings follows:]
Prepared Statement of The Honorable Doc Hastings, Chairman, Committee
on Natural Resources
Today marks the legislative phase of updating, improving, and
modernizing the Endangered Species Act for the 21st century. It is the
product of years of committee oversight on this 40-year-old law that
was last reauthorized in 1988.
Last year, I along with Rep. Cynthia Lummis, created the Endangered
Species Act Congress Working Group. Comprised of Republican Members
from affected districts nationwide, this group held forums and received
hundreds of public comments from all sides.
In February, the Working Group released its final report with more
than 20 recommendations. The Group found that while there is strong
support for conserving endangered species, there are key areas where
improvements could be made to make the law more effective for both
species and people. Today's bills reflect some of those recommended
improvements.
I've said it has never been my intent to introduce a sweeping
overhaul of the ESA. I don't believe that's the best way forward.
Instead, the focus needs to be on thoughtful, sensible, and targeted
proposals. We have those before us today.
First is a bill I introduced, the 21st Century Endangered Species
Transparency Act. This legislation simply requires that data used by
Federal agencies for ESA listing decisions be made publicly available
and accessible through the Internet. The last significant update to the
ESA was when the Internet was in its infant stages. Posting data
supporting key ESA decisions online will greatly enhance transparency,
and is something that should have been done long ago.
In my own central Washington district, the Fish and Wildlife
Service, rather than using actual DNA data, based its decision to list
a plant called the bladderpod largely on publicly inaccessible data
from a 2006 ``unpublished'' manuscript. Other examples include the
Federal Government's citation to taxpayer-funded ``studies'' that
conclude, without actual data, that listing the Greater Sage Grouse
across 11 western States is warranted. Whether one agrees with the
conclusion or not, refusing to make taxpayer-funded data available to
the American public flies in the face of transparency and good science.
H.R. 4317, the State, Tribal, and Local Species Transparency and
Recovery Act, sponsored by Rep. Neugebauer, would enhance State, local
and tribal involvement in ESA decisions. This bill would require that
before any listing decision is made, the Federal Government must
disclose all data used to States affected by such actions. This gives
States the opportunity to verify, dispute, or complement such
information and encourages a stronger role for States in species
conservation policies. The bill also ensures that data from local,
State and tribal entities--those closest to the ground--be included in
ESA listing decisions.
H.R. 4316, the Endangered Species Transparency Act, sponsored by
Rep. Lummis, would require the administration to track and make
available online the millions of taxpayer dollars being spent on ESA-
related litigation to give the American people clear information about
the time and resources currently used to address ESA-related lawsuits.
The final bill, introduced by Rep. Huizenga, would reduce taxpayer-
financed attorney fees to help ensure that resources for species
protection are focused more on species than on lucrative legal fees. It
puts in place the same reasonable hourly caps on attorney fees used in
another Federal law, the Equal Access to Justice Act. This common sense
bill would help reduce the often current exorbitant, taxpayer-funded
fees--often upwards of $500 per hour--and make them limited to the
hourly rate for attorneys that prevail against the Federal Government
at $125 per hour. This is in line with the Equal Access to Justice Act.
Last week, at an appropriations hearing, the Director of the Fish
and Wildlife Service acknowledged that there could be ``opportunities
to make incremental improvements'' to the ESA. That is exactly what
we're doing here, and in a manner that, I hope will be bipartisan.
These bills provide a starting point for this committee's
legislative efforts on the ESA. Moving forward with these simple,
narrowly focused proposals would help bring needed transparency for
significant Federal ESA decisions for both species and people.
______
The Chairman. And, with that, I will recognize the
distinguished Ranking Member, Mr. Grijalva.
Mr. Grijalva. Thank you very much, Mr. Chairman, and thank
you for yielding.
STATEMENT OF THE HON. RAUUL GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. After numerous hearings and a partisan task
force which concluded that the Endangered Species Act is a
failure because it has not recovered enough species, we now
have before us four bills that would create red tape, divert
agency resources, and dictate what data constitutes the best
available science, regardless of whether the data is, in fact,
the best, or even scientific. None of these bills will actually
lead to the recovery of more species.
The pattern of this committee with respect to ESA has been
all too familiar to other issues we have before us. Partisan
hearings, excessive document demands from agencies that require
thousands of man-hours to address, the all-Republican task
force, and, yesterday, another subpoena for Fish and Wildlife
Service, which, by now, must be feeling pretty popular with the
Natural Resources Committee.
Finally, today we consider four bills that have been
before--that have been developed with no consultation with the
Democrats. Ironically, a few of these bills have concepts
that--some changes could probably be supported. But, as
drafted, they have significant problems. If the past is a
prologue, there will be no effort to try to make the changes
that will garner bipartisan support, and the Majority will just
move forward to mark up, because, as we all know, they have the
votes.
This, unfortunately, is not the way to successfully
legislate. And unchanged, these bills will very likely go the
way of the dodo bird. No real progress will be made to improve
agency efficiency and increase recovery rates for species or to
truly improve transparency in a way that benefits citizens,
agencies, and the species. Perhaps that is what the other side
wants: the ability to endlessly attack ESA and repeat
accusations that have been around for decades, that
environmentalists are getting rich off ESA lawsuits and species
are not recovering.
The fact is, like it or not, ESA is one of the most
important environmental laws of our time, and protecting
endangered species is broadly supported by the public. When the
father of ESA, Congressman John Dingell, introduced his bill in
1973, species were disappearing at an accelerated rate. As Mr.
Dingell noted then, and is still true today, the protection of
endangered species is far more than a matter of aesthetics.
Once a species is gone, it is gone. When we fail to protect
endangered species, as then-Committee Chairwoman Margaret
Sullivan noted, we tinker with our own futures, and run risks
whose magnitudes we barely understand, if at all.
Does the recovery of species take time? Of course it does.
Species that end up on the list are those that have been driven
to the brink, but saved from extinction after decades of
habitat loss and degradation or, in the case of the wolf, a
concerted extermination effort. Were it not for ESA, however,
scientists estimate that more than 200 species would have gone
extinct in the time since the law's passage. Moreover, when
comparing the actual recovery rate of listed species to the
recovery plans that have been developed under the law, 90
percent of the listed species are recovered at a rate that was
expected in the plan.
We have a duty and a responsibility to protect all
creatures, great and small. And I cannot support legislative
initiatives that will undermine that goal. If the Republicans
want to improve recovery, increase transparency in a manner
that truly benefits species, we are prepared to talk. If this
effort is just another talking point on the too-much-regulation
or sue-and-settle agenda, however, the discussion will be
unproductive and short.
With that, Mr. Chairman, thank you, and I yield back my
time.
The Chairman. I thank the gentleman for his opening
statement, and I am very pleased to recognize our first panel.
We have Dr. Rob Roy Ramey from Nederland, Colorado, who is with
the Wildlife Science International. We have The Honorable Kel
Seliger, State Senator from Amarillo, Texas; Dr. Steve
Courtney, Associate for the National Center for Ecological
Analysis and Synthesis, from Santa Barbara, California; Mr.
Michael Bean, Counselor to the Assistant Secretary for Fish and
Wildlife and Parks for the U.S. Department of the Interior,
here, in Washington, DC; Mr. Sam Rauch, Deputy Assistant
Administrator for Regulatory Programs for the National Marine
Fisheries Service at the U.S. Department of Commerce, here, in
Washington, DC; and The Honorable Tom Jankovsky, Commissioner
of Garfield County, Colorado.
For those of you who have not had the opportunity to
testify in front of the committee, we ask all of you to submit
a written statement, which you all did. And that will be part
of the record. However, with your oral remarks, I would ask
very much that you keep them within the 5-minute time period.
And that timing light in front of you is how we kind of keep
score here. When the green light is on, it means you are doing
extremely well. When the yellow light comes on, it means that
you are coming to the end of your 5 minutes. And then, when the
red light comes on, that means that the 5 minutes are over. So,
I would ask you to end your remarks before that red light comes
on, if you can do that. And if we do that, we will have plenty
of time, hopefully, for questions.
So, with that, I want to introduce first Dr. Rob Roy Ramey,
II, from Nederland, Colorado. And you are recognized for 5
minutes, Dr. Ramey.
Dr. Ramey. Thank you, Chairman.
STATEMENT OF ROB ROY RAMEY II, PH.D., WILDLIFE SCIENCE
INTERNATIONAL, NEDERLAND, COLORADO
Dr. Ramey. Thank you, Chairman. This hearing today
considers modest bills that seek to correct several
longstanding issues with transparency and prioritization of
conservation effort in administration of the Endangered Species
Act.
The first bill, H.R. 4315 (Hastings), would restore the
public's right to know by providing public access to the data
that are the basis of ESA decisions. H.R. 4315 is also
consistent with a long trend of legislation on the openness and
transparency of government. In 1982, congressional amendments
to the Endangered Species Act required that listing decisions
be based upon data, rather than opinion or information.
Subsequent legislative expansions of the public's right to
know including the Shelby Amendments and circular A110, from
the Office of Management and Budget, to require that all data
produced under a Federal award be made public; the Freedom of
Information Act in 2000; the Federal Advisory Committee Act,
also in 2000; and the Data Quality Act in 2001, for which all
the agencies have produced policies.
This tradition of openness continued in 2009, with
President Obama's executive order requiring greater openness
under the Freedom of Information Act. ``The presumption of
disclosure also means that agencies should take up affirmative
steps to make information public. They should not wait for
specific requests from the public. All agencies should use
modern technology to inform citizens of what is known by their
government, and disclosures should be timely.''
Moreover, within the scientific community, an increasing
number of scientific journals require that the data be archived
and publicly available. The benefits of making data public and
independent review are obvious. Here are a few of the benefits
recognized by the National Institutes of Health and National
Academy: reinforcing open scientific inquiry, encouraging a
diversity of analysis and opinion, promoting new research,
testing of new or alternative hypotheses, enabling exploration
of topics not envisioned by the original investigators,
permitting the creation of new data sets by combining data sets
from multiple sources, and promoting new ways of looking at
problems.
Just as maintaining scientific progress to benefit human
health, these same reasons apply to solving problems with
ecosystem health facing endangered species. And withholding
data does not further the goal of species recovery.
Despite a trend toward openness in virtually all other
areas of government, many far-reaching ESA listings and
regulatory decisions are being made without the opportunity for
independent analysis of the underlying data. The ESA is sorely
in need of updating in this regard. And the services are
working from an outdated model.
Should the U.S. Fish and Wildlife Service and National
Marine Fisheries Service be making far-reaching decisions based
upon data that are not publicly available, and even data that
they and peer reviewers retained by them have not seen? I don't
think so.
Now, what about the criticisms of this bill? In my 34 years
of experience working with endangered species in the wild, the
risks of data disclosure are overstated. Most of the data we
are talking about reveals nothing about specific locations that
would put plants and animals at risk. Measurements, genetic
data, mortality data, disease data, behavioral data,
experimental data, past locations recalling an animal's move
from one place to another, their sex, age, and number. These
don't put the animals at risk. And in cases where there are
regularly used nest sites, water sources, and these are host to
human activity, and a documented risk exists, seasonal closures
are an effective tool for protection.
The purported risk of poaching or harassment of wildlife is
a red herring. It has been my direct experience that if the
public knows where nests are, or the water sources are, it can
be counted on to protect them from trespass and harm. It has
also been my experience that poaching is a crime of opportunity
and chance. It is not one facilitated by data mining. And there
are severe penalties for poaching, and that includes felonies.
Now, the privacy of land owners is something of concern to
all of us. And that could be protected in the same way that
privacy of individuals involved in clinical trials and medical
research can be protected, through the use of legally binding,
non-disclosure data-sharing agreements. And these are in wide
use.
In conclusion, I do see one grave risk to this openness and
proposed data disclosure. It is to those who have sought to
maintain their power, money, and authority by withholding
scientific and financial data from the public, and this comes
at the cost of recovering species.
And just a few words on H.R. 4316 and 4318. I think in
1978, when the Supreme Court interpreted the language of the
ESA to conclude that listed species must be protected at
whatever the cost, they weren't referring to paying out
exorbitant lawyers' fees. Thank you very much.
[The prepared statement of Mr. Ramey follows:]
Prepared Statement of Rob Roy Ramey II, Ph.D., Wildlife Science
International, Nederland, Colorado on H.R. 4315, H.R. 4316, H.R. 4317,
and H.R. 4318
``There is, to begin with, the kind of secrecy that everyone
deplores but that is fostered by institutional cultures of
self-interest, both public and private--when scientific facts
that the public has a right to know are intentionally hidden
and knowingly withheld to preserve the economic or political
standing of powerful organizations.''
Sheila Jasanoff, John F. Kennedy School of Government, Harvard
University.
The hearing today considers bills that seek to correct several
long-standing issues with transparency and prioritization of
conservation effort in administration of the Endangered Species Act
(ESA). The bills would restore the public's right to know when it comes
to ESA decisions; ensure cooperation with State, local, and tribal
governments; and ensure that the public's funds go where they are
needed most--to species conservation rather than into lawyers' pockets.
As a biologist who has dedicated a 34-year career to the
conservation of endangered species, and who has risked life and limb on
countless occasions to save endangered species in the wild, I support
these bills. While the details of these bills may be discussed and
debated, the need for them is unquestionable.
H.R. 4315, (Hastings), ``21st Century Endangered Species Transparency
Act''
The first bill, H.R. 4315, addresses a subject that I have written
extensively about in scientific papers and in previous testimony before
this committee, on August 1, 2013. I include a copy of that testimony
as an attachment in support of my testimony today, however, let me
reiterate several key issues and address several concerns raised by
critics.
First, the ESA requires that decisions to list species as
threatened or endangered, and enact regulatory actions to aid their
recovery, be made ``solely on the basis of the best available
scientific and commercial data.'' However, Federal agencies actually
rely on published and unpublished studies, and professional opinion,
rather than the underlying data used in the studies. This means that
many far-reaching ESA listing and regulatory decisions are being made
without an opportunity for independent analysis and verification of the
underlying data upon which the cited studies are based.
Second, when data are not publicly accessible, legitimate
scientific inquiry is effectively eliminated as no third party can
independently reproduce the results. Such secrecy does not further the
goal of species recovery. Such secrecy also puts the evidentiary basis
of some resource agency decisions outside the realm of science and in
clear violation of the Information Quality Act. And finally, it has the
effect of concentrating power, money, and regulatory authority in the
hands of those who control access to the data.
Third, peer review is not a panacea. It is a useful but imperfect
filter on information quality and not a substitute for public access to
the underlying data that allows for an independent, third party review.
Fourth, there are precedents that support the archiving of data
that is being proposed in this bill. Several publicly accessible data
repositories exist on the Internet, as well as traditional museum and
library archives where data may be archived without charge.
Additionally, a growing number of scientific journals require that the
data be published with the paper or deposited in an online archive. As
an example, data archiving and sharing policies that have been
developed by the National Institutes of Health are straightforward and
address many of the issues raised by critics for similarly requiring
data archiving and sharing of data used as the basis of ESA decisions.
(https://grants.nih.gov/grants/policy/data_sharing/
data_sharing_faqs.htm#902).
And finally, as I was asked in previous testimony, ``Are there
situations where public access to data should be limited, such as
revealing the locations of endangered species?'' To that question I
answered, ``In most cases, this threat is overstated. However, in those
situations where there is a legitimate concern (i.e., where poaching
has been clearly documented), the risk should be weighed against the
potential benefits of more effective management aiding species
recovery. If the risk of disclosure is real, then the solution is to
allow only `narrowly drafted exceptions to the general rule of open
access' as `broad exceptions tempt agencies and other decisionmakers to
shield their programs from criticism' (Fischman and Meretsky 2001).''
One widely used mechanism that allows for data sharing when disclosure
has risk or data are considered proprietary, is the use of legally
binding, non-disclosure/data sharing agreements. These are in
widespread use in the medical research fields and examples can be
downloaded from the websites of major research universities (i.e. MIT,
Cornell, Yale).
As noted by Jasanoff (2006) ``Important legislative expansions of
the public's right to know and assess information used by the
government include: the Freedom of Information Act, 5 U.S.C. Sec. 552
(2000), the Federal Advisory Committee Act, 5 U.S.C. app. Sec. Sec. 1-
15 (2000), and the Data Quality Act, a rider to the Treasury and
General Appropriations Act for Fiscal Year 2001, Pub. L. No. 106-554,
Sec. 515, 114 Stat. 2663 (2000).'' To this list, I add the Shelby
Amendment to the Omnibus Appropriations Act for FY 1999, Pub. L. No.
105-277, 64 FR 5684 (Feb. 4, 1999) which amended OMB Circular A-110 to
require that Federal awarding agencies ensure that all data produced
under an award are made available to the public through the procedures
established under the Freedom of Information Act. H.R. 4315 is
consistent with that legislative trend of openness and transparency.
H.R. 4317, (Neugebauer), ``State, Tribal, and Local Species
Transparency and Recovery Act''
The next bill, H.R. 4317, addresses a long-standing frustration
experienced by State, local, and tribal governments I have worked with,
at having their data and plans effectively ignored by the Fish and
Wildlife Service (USFWS) unless the agency was forced to do otherwise
(i.e. through litigation). We are currently seeing this issue play out
on the lesser prairie chicken, that was just listed by the USFWS, as
well as Gunnison and greater sage grouse, whose decisions are pending.
In all of these cases, the data and the plans were developed with
substantial expenditures of earnest effort. However, there is no
guarantee that superior local data will be considered by the USFWS as
best available scientific and commercial data in its decisionmaking.
A poignant example comes from Dolores County, Colorado. It is the
poorest county in that State and facing devastating economic
consequences with a potential listing of the Gunnison sage grouse. That
proposed listing has crippling economic consequences because most of
the county, including the town of Dove Creek and most of its
agricultural land, was mapped and proposed as critical habitat by the
USFWS. The county commissioned an independent GIS analysis of critical
habitat, which found (using higher resolution data) large areas of non-
habitat mapped as critical habitat and submitted comments to the USFWS
pointing out these problems. However, given the experience of other
counties whose mapping efforts have been ignored, the County is not
hopeful.
Commissioner Tom Jankovsky of Garfield County, Colorado can
describe a similar situation there, where their sage grouse habitat is
naturally fragmented by topography and vegetation, but the agencies
treat it as if it were contiguous habitat, and have ignored the
County's superior mapping efforts.
Perhaps even more disturbing is that fact that there is no
mechanism for the USFWS to cooperate with State, local, and tribal
governments in development of conservation plans and provide assurances
that proposed conservation efforts will meet the standards of the
Policy for the Evaluation of Conservation Efforts When Making Listing
Decisions (PECE policy). Essentially, State, local, and tribal
governments find out whether their hard work has paid off only at the
time of a listing decision. That is a disincentive for investing
conservation efforts. This bill could make a difference in providing a
mechanism whereby greater assurance is provided in advance.
H.R. 4316, (Lummis), ``Endangered Species Recovery Transparency Act''
I applaud the intent of H.R. 4316 to track the funds expended to
respond to ESA lawsuits, including the number of employees dedicated to
litigation, attorney's fees awarded in the course of ESA litigation and
settlement agreements. To this I would add the requirement that these
expenditures also be tracked by species, and that ESA expenditures at
other Federal agencies be tracked as well, so that the public can
determine the total Federal cost of implementing the ESA. Such data
would go a long way toward setting priorities.
H.R. 4318, (Huizenga), ``Endangered Species Litigation Reasonableness
Act''
And finally, I have a few words to say about H.R. 4318, (Huizenga).
In 1978, the U.S. Supreme Court interpreted language of the ESA to
conclude that listed species must be protected ``whatever the cost.''
However, I do not think the Supreme Court was referring to ``whatever
the cost'' applying to exorbitant, run-away lawyer's fees. This bill
will reprioritize expenditures so that they will do the most good for
species recovery.
Literature Cited
Fischman, R.L., and V.J. Meretsky. 2001. Endangered species
information: access and control. Washburn Law Journal 41:90-113.
Jasonoff, S. 2006. Transparency in public science: purposes,
reasons, limits. Law and Contemporary Problems. Duke University.
Ramey, R.R. 2013. U.S. House of Representatives, Committee on
Resources. Oversight Hearing on: ``Transparency and Sound Science Gone
Extinct?: The Impacts of the Obama Administration's Closed-Door
Settlements on Endangered Species and People.'' (Provided oral and
written testimony.) 1 August 2013.
Attachment A
Testimony of Rob Roy Ramey II, Ph.D.
Before the Committee on Natural Resources, Oversight Hearing on
``Transparency and Sound Science Gone Extinct?: The Impacts of the
Obama Administration's Closed-Door Settlements on Endangered Species
and People,'' held August 1, 2013
``A democracy requires accountability, and accountability
requires transparency.''
Barack Obama (from Memorandum for the Heads of Executive Departments
and Agencies, on the subject of the Freedom of Information Act)
My Qualifications
I am an independent scientist with 33 years of experience in
conservation, research and management of threatened and endangered
wildlife. Having worked on many species, including peregrine falcons;
California condors; desert, Sierra Nevada, and Rocky Mountain bighorn
sheep; argali sheep of Asia; meadow jumping mice; sage grouse; delta
smelt and African elephants, I am well aware of the scientific issues
surrounding species listing and recovery. I earned a Ph.D. from Cornell
University in Ecology and Evolutionary Biology; a master's degree from
Yale University in Wildlife Ecology; and a bachelor's degree in Biology
and Natural History from the University of California Santa Cruz, and
postdoctoral experience included research at University of Colorado,
Boulder and as a visiting scientist at the Center for Reproduction of
Endangered Species at the San Diego Zoo. After 5 years as Curator of
Vertebrate Zoology at the Denver Museum of Nature & Science, I served
as a consulting Science Advisor to the Office of the Assistant
Secretary of the Interior in Washington, DC. I am member of the
Caprinae Specialist Group at the International Union for the
Conservation of Nature (IUCN) and serve as a science advisor to the
Council for Environmental Science, Accuracy, and Reliability (CESAR). I
consult on endangered species scientific issues and conduct scientific
research with Wildlife Science International, Inc.
I bring to your attention two key transparency issues with the
implementation of the U.S. Endangered Species Act. These are issues
that undermine legitimate conservation efforts, waste scarce
conservation dollars, and impose ineffective regulatory burdens on the
public. In the worst cases, they can harm the very species they were
intended to protect. I also provide potential solutions that I think
both sides of the aisle may find agreement on.
issue 1: most esa decisions are not based upon publicly available data
The U.S. Endangered Species Act (US-ESA) requires the U.S. Fish and
Wildlife Service (USFWS) make decisions to list species as threatened
or endangered, and enact regulatory actions to aid the recovery of
species, ``solely on the basis of the best scientific and commercial
data available'' (16 U.S.C. 1531 et seq.). Although referred to as
data, the USFWS actually relies on published and unpublished studies,
and professional opinion, rather than the underlying data the cited
studies are based upon (see http://www.fws.gov/informationquality/ and
the Department of Interior's Scientific Integrity policies (DOI 2011)).
Despite having adopted the Office and Management and Budget Information
Quality Guidelines which require transparency in studies used in
regulatory decisionmaking, currently, neither the USFW, nor the
National Marine Fisheries Service have a requirement that data relied
upon in decisionmaking be publicly available.
Resource agency reliance on the papers and reports which summarize
results and contain the opinions of scientists, rather than the
underlying data, as specifically required by the ESA, has created an
untenable situation where:
1. Far-reaching ESA listing and regulatory decisions are being made
without an opportunity to independently analyze the
underlying data and assumptions upon which the cited
studies are based.
2. Resource agencies have effectively replaced the scientific method
in implementation of the ESA (i.e., data, hypothesis
testing, and reproducible results) with the opinions
expressed by the authors of the cited studies, especially
when those opinions are erroneously represented as if they
were rigorously tested against the data.
What are the effects of this lack of transparency on the public?
When data are not publicly accessible, legitimate scientific inquiry is
effectively eliminated as no third party can independently reproduce
the results. This action puts the evidentiary basis of some resource
agency decisions outside the realm of science and in clear violation of
the Information Quality Act. Furthermore, it has the effect of
concentrating power, money, and regulatory authority in the hands of
those who control access to the data (Ramey 2012).
That is neither transparent nor is it democratic; it relies on
authority.
There are sound reasons to question such authority. Key studies
used in decisionmaking on the greater sage grouse, Gunnison sage
grouse, boreal toad, Prebles meadow jumping mouse, coastal California
gnatcatcher, delta smelt, desert bighorn sheep, and hookless cactus
have one of more of the following: mathematical errors, missing data,
errors of omission, biased sampling, undocumented methods, simulated
data used when more accurate empirical data were available,
discrepancies between reported results and data, misrepresentation of
methods, arbitrarily shifting thresholds, inaccurate mapping, selective
use of data, subjective interpretation of results, fabricated data
substituted for missing data, or no data at all. Clearly, the agency's
scientific peer review process that should have caught these errors is
not as effective as it is portrayed to be.
It has been my experience that when data has not been provided to
the agencies, then obtaining access to data held by researchers, even
after publication, can be difficult, if not impossible. As the
following responses to data requests illustrate, seeking data can
frequently resembles a shell game:
``It is very possible that this data set does not exist any
longer.''
``The USFWS data was deliberately provided in a format that
would not facilitate a detailed analysis by those unfamiliar
with the manner in which it was collected.''
``Unfortunately we cannot provide you with the raw data you
have requested at this time.''
``We categorically do not release this information to anyone
including the United States Fish & Wildlife Service and the
California Department of Fish and Game.''
While some researchers have been responsive to data requests,
others simply ignore our data requests altogether. Some researchers
apparently feel a need to control access to the data, determining if,
when, and to whom it will be released, sometimes years after the data
were collected. However, many of these studies were permitted and/or
funded by the USFWS (or other source of Federal funding) through
grants, contracts, or cooperative agreements. Therefore, it follows
that the data should be public, yet there is no consistent requirement
from the USFWS that the data be public or provided to the agency.
This problem is more widespread than one might initially think. In
a notable case, colleagues at the California Fish and Game (CDFG) had
to track down and net-gun endangered desert bighorn sheep from a
helicopter so they could manually download data from the GPS radio
collars (that provide precise locations at regular time intervals).
They were forced into this extreme course of action because a
researcher had reset the access codes on the collars so only he could
download the data remotely, and the researcher refused to share the
data with the CDFG who needed it for management of the population (Dr.
V. Bleich, CDFG retired and K. Brennen, pers. comm). Funding for
purchase of the GPS radio collars was provided by the USFWS for use by
the researcher.
In two other cases (coastal California gnatcatcher and desert
bighorn sheep in the Peninsular Ranges) a court order was required to
obtain the data.
Clearly, the public interest in having timely access to data
overrides perceived ownership of data by some researchers. As noted by
ESA scholars, Fischman and Meretsky (2001):
``In addition to the rapid responses often needed to recover
endangered species, most research in conservation biology is
also distinguished by a dependence on government resources. The
funding for research; the scientific permits allowing
researchers to collect, harass, or harm animals; the permission
for access to public lands; and the regulation controlling
activities to ensure continued existence of imperiled species
all point to the pervasive public interest in the resulting
information. This public claim for access countervails the
customary control researchers exert over data they collect.''
In my experience, recovery of threatened and endangered species is
most effective when there is active scientific debate and discussion
about the best courses of action to identify and ameliorate threats,
and how to devise more effective conservation measures. Such urgency
requires open and timely access to data.
A solution to this issue is neither difficult, nor costly. There
are publicly accessible data repositories (i.e. GenBank for DNA
sequences and Dryad for general purpose data archiving http://
datadryad.org/), as well as traditional museum and library archives
where data may be archived without charge. All that is needed is a
requirement the data be archived prior to the agency relying on the
report or paper in its decisionmaking, and that the data (both raw and
final data sets) and methods are provided in sufficient detail to allow
third party reproduction.
Are there situations where public access to data should be limited,
such as revealing the locations of endangered species? In most cases,
this threat is overstated. However, in those situations where there is
a legitimate concern (i.e., where poaching has been clearly
documented), the risk should be weighed against the potential benefits
of more effective management aiding species recovery. If the risk of
disclosure is real, then the solution is to allow only ``narrowly
drafted exceptions to the general rule of open access'' as ``broad
exceptions tempt agencies and other decisionmakers to shield their
programs from criticism'' (Fischman and Meretsky 2001).
issue #2: peer review is not a panacea
Peer review is a useful but imperfect filter on information
quality. However, it is not a substitute for public access to the
underlying data that allows for an independent, third party review.
Despite the best of intentions, there are no guarantees that peer
reviewers will be provided access to data, or that if data is provided,
it will be used in developing their review. As previously noted, peer
reviewers do not always catch errors of significance. Moreover, as
detailed in my previous testimony to the committee (Ramey 2007), if
there was a bias or selective presentation of information by the USFWS
to peer reviewers, the outcome of the peer review can be less than
objective. And finally, despite agency assurances, there is no
guarantee that reviewers will be free of conflict of interest or will
deliver an impartial assessment. The reasons for this are summarized in
the following excerpt from my recent paper, On The Origin of Specious
Species (Ramey 2012):
``The problems that lead to these issues [with peer review] are
three fold. First, the number of experts involved with a
particular species is often limited. Whole careers are
sometimes dedicated to the study of a species (or subspecies or
population), and a listing can produce what is perceived as
needed ``protection'' for that species under the ESA.
Additionally, ESA listings can have the effect of putting these
experts into positions of power, money, and authority, through
their roles on Recovery Teams, Habitat Conservation Plans, and
consulting as USFWS ``approved biologists.'' Because few ESA-
listed species are ever delisted, this guarantees a virtual
lifetime of employment on one's favorite species. Thus, experts
used in peer review may also be advocates, or have an
emotional, ideological, or financial stake in the proposed
listing.''
``Second, a network of individuals who work on a particular
species (or issues common to several species) can form powerful
``species cartels.'' These social networks can influence the
peer review process, provide a united front to advocate for
particular decisions, and repress the publication of
information that does not agree with their positions.'' It has
been my experience that the FWS and NMFS typically rely on
species specialists, which exacerbates this problem.
``And third, the use of other Federal biologists in peer
review, especially those from the USFWS and the USGS-Biological
Resources Division (USGS-BRD), cannot be viewed as conflict
free. The increasing codependency of the USFWS and USGS-BRD,
results in a growing and previously unrecognized conflict of
interest in science used in support of ESA decisions and the
use of USGS biologists as peer reviewers on information used in
ESA decisions. This extends to the role of USGS biologists who
serve as editors and reviewers for scientific journals, and who
peer review highly influential scientific information used in
ESA decisions.''
To avoid the pitfalls of peer review described above, the solutions
are relatively straightforward:
1. To ensure that peer reviews are transparent, conducted in an
objective and consistent manner, that the underlying data
are both available and analyzed by reviewers, and that
potential conflicts of interest are clearly identified,
accountability is required: make failure to comply with
Information Quality Act an arbitrary and capricious action
on the part of the agency.
2. Ensure that that all agency sponsored and administered peer
reviews, including those conducted internally by biologists
at the USGS, be public information if they are relied upon
by the USFWS or NMFS.
3. Require that the USFWS and NMFS identify and make available
online all information including contrary information that
it has received.
conclusions
The American people pay for data collection and research on
threatened and endangered species through grants, contracts,
cooperative agreements, and administration of research permits. They
pay the salaries of agency staff who collect data, author, edit, and
publish papers based upon those data. They, for the most part, are
willingly regulated based on those data. It is essential that the
American people have the right to full access to those data in a timely
manner, as it is in the public interest. A requirement that data and
methods be provided in sufficient detail to allow third party
reproduction would raise the bar on the quality and reproducibility of
the science used in ESA decisions and benefit species recovery. Failure
to ensure this level of transparency will undermine the effectiveness
of the very programs that the data were gathered for in the first
place.
It should not take a subpoena (or intrepid, net-gun toting State
biologists leaping from helicopters) to obtain data that should be
public under the ESA.
Accountability is needed in the implementation of Information
Quality Act, particularly in regard to public access to data and the
peer review process.
Qualified third party reviews have the potential to reduce the
workload of agencies, and improve the caliber of regulatory actions.
The ongoing ``bio-blitzkrieg'' of ESA listing petitions, lawsuits,
and settlement agreements does a disservice to bona-fide conservation
efforts. Every time another species is added to the list of threatened
and endangered species, or a new deadline is imposed by litigants, the
resources to recover species becomes more thinly spread. Throwing more
money at the problem is not the solution, nor is allowing
decisionmaking by fiat. The solution is to ensure that the scientific
evaluations are done properly the first time, and that means relying
upon data and objective application of the scientific method, as
required by the ESA.
Literature Cited
DOI. 2011. Integrity of Scientific and Scholarly Activities.
Department Manual. Part 305, DM, Chapter 3:1-38. Office of the Deputy
Secretary, Department of Interior. available at http://www.doi.gov/
scientificintegrity/index.cfm. Accessed October 2, 2012.
Fischman, R.L., and V.J. Meretsky. 2001. Endangered species
information: access and control. Washburn Law Journal 41:90-113.
Ramey, R.R. 2007. Written testimony submitted to the U.S. House of
Representatives, Committee on Natural Resources, for the Legislative
Hearing on: ``Crisis of Confidence: The Political Influence on Agency
Science and Decision-Making.'' July 31, 2007.
Ramey, R.R. 2012. On the Origin of Specious Species. Chapter 4, In:
Institutions and Incentives in Regulatory Science. J. Johnston (ed.),
Lexington Books. Pp. 77-97.
______
The Chairman. Thank you very much, Dr. Ramey, for your
testimony. I will now recognize the gentleman from Texas, Mr.
Neugebauer, for purposes of introduction.
Mr. Neugebauer. Thank you, Chairman Hastings, and thank you
for your--and I appreciate you allowing me at this hearing
today to consider--take the opportunity--H.R. 4317, which is
the ``State, Tribal, and Local Species Transparency and
Recovery Act.'' We know better decisions are made when you have
the best facts. One of the things--Fish and Wildlife--the
States and the stakeholders the data--to make those
determinations. At the same time, give States the opportunity
to furnish data to Fish and Wildlife--decisions.
And so, I think this is a proactive approach, and I
appreciate--hearing today--want to make sure that we are--
working toward the--of the species, as well at the same time
acting--and so, I think this is a--, and I think--
It is my honor to welcome not only a friend, but--from
Texas. Kel represents 37 counties, and there are only 254
counties in Texas. And so, when I say that Seliger represents
Texas, I mean he represents Texas. He is a former mayor of
Amarillo, Texas. But, more importantly, while he has been in
the Senate he has been very involved in the Endangered Species,
its impact on Texas, its impact on--So, it is my privilege to
recognize Mr. Seliger, Senator Seliger.
The Chairman. Senator Seliger, you are recognized for 5
minutes.
STATEMENT OF THE HON. KEL SELIGER, A U.S. SENATOR FROM THE
STATE OF TEXAS
Mr. Seliger. Mr. Chairman, ladies and gentlemen, thank you
very much for the opportunity to talk to you today about the
State's role in the process of endangered species. I
particularly appreciate Congressman Neugebauer's interest and
work in this area, because it is very important. The district
that I represent produces 20 to 25 percent of the Nation's oil
and gas, and a substantial amount of the Nation's cotton, grain
sorghum, wheat, corn, beef, milk, and pork.
Two years ago I chaired an Odessa, Texas, hearing of our
Natural Resources Committee to deal with the dune sage brush
lizard. And there were two overarching, I think, fundamental
principles that came out of the hearing. One, any
determinations under the Endangered Species Act should be based
upon good science, scientifically reliable science that
provides clear measures of what the problem is, what the
potential solution is, and what the effects of the remedies
are.
The other thing that we found out--and some of the largest
independent producers of oil and gas in the country were there,
all people who own or have rights on substantial acreages in
West Texas and New Mexico--was that nobody wanted to be
responsible for the extinction of any species, however
physically small and insignificant that they may be. And I
think that is particularly important because, at the end of the
day, the way I understand the Endangered Species Act, it is
about the protection or restoration of the species, not just a
settlement of litigation.
The States' engagement, I think, is critical, because that
is where so much of the science is generated that will be used.
In the case of the dune sage brush lizard, which we believe is
in a unique habitat in West Texas and Southern New Mexico,
there may be more than one, but the primary authority is a
State employee, a Professor Lee Fitzgerald at Texas A&M
University, whose research has been very transparent and peer
reviewed.
And the pathways to success vary by States. And I think
that is particularly important. In the case of the dune sage
brush lizard there are mitigation credits by land set-asides.
When it comes to the lesser prairie chicken, there are five
States involved in that habitat: Texas, New Mexico, Oklahoma,
Kansas, and Colorado. And they have set aside large amounts of
property. And it is just a different way to do it. But each
species may require a different solution, and those solutions
may be specific and characterized by the presence in those
States.
There are 168 million acres in Texas, 95 percent of which
is privately held. In the United States as a whole, only 30
percent of the land is owned by the Federal Government. The
rest in those States is privately held. Largely in the West, we
look at areas that have large land areas, be it the Permian
Basin or the Great Plains, or whatever.
Most of the States--certainly in the case of Texas,
Colorado, and Oklahoma--there are parks, wildlife, wildlife
fishery organizations, that have tremendous scientific assets
in which to do the research to make sure that it is
transparent, as it must be, as State agencies, and to see to it
that the remedies work, because they are the ones who will
provide the empirical measures to show us what the effects are
of those measures used.
In the case of the lesser prairie chicken, 35 companies
enrolled over 4 million acres. In the case of the dune sage
brush lizard, private companies put up about $2 million to pay
for the research that would be done in the State of Texas,
under the auspices of Fish and Wildlife Service, to see to it
that the research was good, effective, and transparent.
But the overall point of the whole thing is endangered
species is meant to serve a specific purpose: the protection,
restoration, if necessary, of species, and the restoration and
maintenance of habitat.
The end goal is not simply the settlement of litigation,
but to have a positive effect on species possibly affected.
Thank you very much.
[The prepared statement of Mr. Seliger follows:]
Prepared Statement of The Hon. Kel Seliger, a U.S. Senator from the
State of Texas on H.R. 4317
Thank you for the opportunity to address the Committee on Natural
Resources. I am pleased to support the ``State, Tribal, and Local
Species Transparency and Recovery Act,'' H.R. 4317 by Congressman Randy
Neugebauer. Current law clearly directs the Secretary of the Interior
to ``cooperate to the maximum extent practicable with the states'' when
carrying out the Endangered Species Act, and for good reason (16 U.S.C.
1535(a)). State fish and wildlife agencies have the necessary
jurisdiction, resources, and imperative relationships with businesses
and landowners to create comprehensive wildlife action plans that can
preclude the listing of a species. No one wants a species to be listed;
the method for preservation of the species is at the center of the
debate. The entities that are best suited to take on this role are the
States themselves. Timely and meaningful coordination between State and
Federal agencies is imperative in order to preserve potentially
endangered species.
Second, a definition of ``best scientific and commercial data
available'' that includes information obtained by the States is
essential. It is the essence of local control to not only allow, but
also to empower and rely on the local jurisdiction to have the most
current data and best understanding of the issue at hand. To forgo
information from State fish and wildlife agencies, who are in the field
each and every day, simply does not make sense. The U.S. Fish and
Wildlife Service should engage State agencies early and communicate
efficiently and effectively throughout the entire review of a species.
______
The Chairman. Thank you very much, Senator Seliger. I will
now recognize Dr. Steven Courtney, Associate for the National
Center for Ecological Analysis and Synthesis from Santa
Barbara, California.
That is a long title, I might say. Don't say it quickly,
but you are recognized for 5 minutes.
STATEMENT OF STEVEN P. COURTNEY, ASSOCIATE, NATIONAL CENTER FOR
ECOLOGICAL ANALYSIS AND SYNTHESIS, SANTA BARBARA, CALIFORNIA
Dr. Courtney. Thank you. Thank you, Mr. Chairman. I am
Steven Courtney, I am a principal scientist at Western
EcoSystems Technology, Inc. (WEST)--based in Cheyenne, Wyoming,
and an associate at NCEAS, based in Santa Barbara. I am a
biologist with 22 years working with ESA on behalf of private,
tribal, State, and Federal clients. My particular expertise is
in designing and implementing peer review, fact finding, other
processes for difficult or controversial situations. That
includes, a few years ago, leading a synthesis on a little
critter called the Northern Spotted Owl, which I think the
Chairman may have heard of. I also worked on a science process
that helped to diffuse the headwaters controversy in northern
California, the Columbia, the Missouri, the Rio Grande, the
Klamath, Sacramento, and a few other places. And most recently,
I led the review on Fish and Wildlife Services' proposal to
delist the gray wolf. For my day job I work on greater sage-
grouse and advise both private and State clients.
So, you can see that I am not an expert on any one issue or
any region. Instead, I help those who are trying to develop
efficient and science-based solutions, and to design
transparent processes that are aimed at determining best
available science. So my comments here are really on those two
issues, on the role and value of transparency, and how we can
ensure that the decisions of Federal agencies are based on best
science.
While we all agree that transparency is pretty much a good
thing, and it increases the likelihood that we will get new
ideas, it increases the likelihood that any mistakes can be
found and corrected, and, most importantly perhaps, it
increases the likelihood that stakeholders will be able to
understand the reasons for agency decisions. But it is
important to distinguish between scientific information and use
of that information in a deliberative process.
I would argue that attempts to improve ESA decisionmaking
for increased transparency could more usefully be targeted. For
instance, when setting up an evaluation process to understand
the status of the spotted owl, I was very careful, given the
history of that controversy, to be as transparent as possible.
The science groups met in public, stakeholders were invited to
attend those meetings and to present information. And,
ultimately, the process led to a change in Federal management
of the Northwest forests, as our work showed that major threats
were not just in the harvest, but invasion of--by barred owls
and catastrophic wildfires.
Essentially, the same process has been followed in many
other situations. And the processes that I run, reviewers are
not anonymous, there is a record of how information is used and
weighed and evaluated, and then of how decisions are reached.
So, when science-based decisions are discussed openly and
fairly, there is a greater engagement by all sectors, enhanced
cooperation, less litigation, and, I believe, better
decisionmaking. So, transparency of process is very important,
and fair and open explanations of decisions can also be quite
valuable.
But complete transparency could be detrimental. I represent
private clients whose information on timber inventory or
mineral deposits--they would be very upset if that information
became public, and if their ability to access those resources
due to endangered species constraints also became public.
So, I encourage and recommend that the committee consider
how to encourage transparency when it would be helpful,
primarily in ensuring the process is open and fair and as clear
as possible; and second, in encouraging decisionmakers to set
forth the rationale for their decisions.
Turning now to H.R. 4317 regarding best available science,
I will only state that I believe that it is always important to
reach best available science, and that there are techniques in
place to do that, including peer review, joint fact finding,
other things like that. And we do catch and--advise Federal
scientists on the need for change. And most recently on the
gray wolf, perhaps. And I would argue that legally defining
best available science cannot be effective in swaying the minds
of scientists themselves, who will continue to evaluate science
based upon tried and trusted criteria, such as falsifiability,
replicability, and the weight of evidence. And I would
encourage you to make use of existing techniques. Thank you.
[The prepared statement of Dr. Courtney follows:]
Prepared Statement of Dr. Steven P. Courtney, Associate, National
Center for Ecological Analysis and Synthesis (NCEAS), Santa Barbara,
California on H.R. 4315 and H.R. 4317
I am Steven Courtney, Principal Scientist at Western EcoSystems
Technology, Inc. (WEST) and Associate at the National Center for
Ecological Analysis and Synthesis (NCEAS). For the past 40 years, I
have been a biologist, with 22 years of working with the Endangered
Species Act. This experience has included work on behalf of private,
tribal, State, and Federal clients, on many different species and
ecosystems. My particular expertise is in designing and implementing
peer review, fact-finding, and other processes to enhance understanding
of science and related issues within the context of difficult or
controversial situations. A sampling of this work includes:
Leading a synthesis of Spotted Owl biology that identified
current threats to that species;
The science process that helped resolve and defuse the
Headwaters controversy in northern California;
Reviews of water management on the Missouri, Columbia, and
Rio Grande Rivers, and in the Everglades and the Edwards
Aquifer;
Investigations of allegations of scientific malpractice
against Federal scientists in the Sacramento delta and the
Klamath Basin; and
Most recently, leading a review of the use of science by
the U.S. Fish and Wildlife Service (USFWS) regarding de-
listing the wolf.
Currently, most of my work concerns range management and
conservation of sage-grouse, advising private and State clients, as
well as the USFWS.
I have been privileged to work on many systems. Without being an
expert on any one species or region, I have, instead, been engaged
first hand on a wide variety of the issues faced around the country
regarding management of wildlife and natural resources. I have strived
to help those looking for efficient and science-based solutions under
the Endangered Species Act (ESA), in particular, by designing
transparent processes aimed at determining the `best available
science'. My comments on the four bills before you are focused on those
two issues: what is the role and value of transparency; and how can we
ensure that the decisions of Federal agencies are based on the best
science?
transparency
Science depends on the clear and fair evaluation of information. In
the context of the ESA, decisions made by regulatory agencies, (USFWS
and NOAA-Fisheries), as well as other parallel decisions taken by
action agencies (such as the U.S. Army Corps of Engineers (USACE), the
U.S. Forest Service (USDA-FS), and the bureaus within the Department of
the Interior) depend critically on the quality of the scientific
evaluations they carry out. Increasing the transparency of such
scientific assessments has the potential to increase their quality.
Transparency encourages the consideration of new or alternative ideas,
and it increases the likelihood that mistakes will be corrected. Of
course, one of the key advantages of increasing transparency is that
stakeholders can see the basis for agency decisions.
On the face of it, transparency would appear to be straightforward
and a positive attribute. However, my experience with diverse systems
suggests a need for caution and careful application and design of
transparent disclosure of information. In particular, it is useful to
distinguish between scientific information itself, and the use of that
information in a deliberative process. Attempts to improve ESA
decisionmaking through increased transparency need to be targeted and
carefully designed in order to avoid negative effects on commercial
activity and on conservation.
When setting up an evaluation process to understand the status of
the Spotted Owl, I was careful, given the history of that controversy,
to be as transparent as possible. The science group met in public, and
stakeholders were invited to attend these meetings and to present
information. All meetings were recorded, and the technical
deliberations among the scientists became part of the administrative
record. In this way, we ensured that any party could understand our
reasoning, and see how we reached our conclusions. Ultimately, that
process led to a change in Federal management of northwest forests, as
our work showed that loss of habitat to invasive Barred Owls and to
wildfire were major threats comparable to the impacts of timber
harvest.
Essentially the same process has been followed in many other
situations. For reviews on the Everglades, the Missouri, or wolf-
delisting, there is no secrecy regarding the process. Reviewers are not
anonymous, and there is a record of how information is weighed and
evaluated, and then participants provide a record of how decisions are
reached. We make an effort to ensure that stakeholders understand the
evaluation process, and how to contribute to these processes, and,
likewise, we explain our reasoning and the rationale for final
assessments. This openness has proven to be both popular and effective.
When science-based decisions are discussed openly and fairly, there is
greater engagement by all sectors; enhanced cooperation; less impetus
for litigation; and (I believe) better decisionmaking.
By contrast, a lack of clarity can cause problems. In 2011, I was
asked to evaluate allegations of scientific misconduct against Interior
employees on the Sacramento Delta. While the investigative panel found
no evidence of misconduct (and found that the employees had followed
good scientific procedure), we did determine that they had not
explained clearly the rationale for their decisions. That lack of an
open explanation and of how they reached their evaluations led to
significant misunderstandings and frustrations.
In short, transparency of process is important, and fair and open
explanations of decisions can be valuable. I commend the interest in
transparency by this committee. However, in some situations, complete
transparency can be detrimental. Many landowners, for instance, regard
information about wildlife on their lands to be proprietary. Full and
transparent disclosure of such information could have significant
financial impacts. For instance, information on the presence of Spotted
Owls and of the quality of their forest habitat can readily be used by
outsiders to predict a company's timber inventory and the likelihood of
the company being able to harvest that resource. Similarly, a company
with significant populations of a listed species might be unable to
access mineral resources. If such detailed information on a species'
distribution were to be made generally available, it could impact the
company significantly, creating an advantage to competitors,
potentially decreasing shareholder confidence, and so on. In short,
release of such proprietary information is often opposed by such
landowners, for good reason. Requiring full transparency in such
situations can also deter landowners from participating in constructive
conservation agreements with the USFWS or other agencies.
The possibility of complete transparency of data is a potential
threat to conservation planning. Many landowners may be unwilling to
even enter into discussion with USFWS regarding Conservation Banks, or
Conservation Credit systems, if there is a belief that all information
will become public. The innovative conservation exchange system for the
Lesser Prairie Chicken acknowledges this wariness on the part of
landowners and allows habitat evaluations to be carried out by
independent third parties, precisely to assure landowners that their
private information will remain private. Many species listed under the
ESA, and many others that may be considered for listing, occur
predominantly on private lands. For such species, the goodwill of
landowners is imperative, and their concerns for privacy of information
cannot be ignored.
Two of the bills before this committee, H.R. 4315, and H.R. 4317,
discuss the importance of transparency. I recommend that the committee
consider how to ensure that transparency is encouraged in those areas
where it would be helpful. This is primarily in two realms--first, in
ensuring that the process used in scientific assessments is as open,
fair, and clear as possible; second, in encouraging decisionmakers
clearly to set forth the rationale for their decisions, including the
information on which the decision was based and why that information is
relevant and deemed to be the best available information.
best available science
Let me now turn to the matter of best available science. H.R. 4317
specifically addresses one of the lynchpins of ESA--that actions by
NOAA-Fisheries and USFWS must be based on the `best scientific and
commercial data available.' Many existing policies and management
programs of the two regulatory agencies are aimed at ensuring that the
statute is followed and that `best available science' is identified and
used. Hence, internal and external reviews, consultations with affected
parties (including Tribal Nations, States, and other Federal agencies),
collaborative conservation efforts, and other policies all aim to
improve the use by USFWS and NOAA-Fisheries of good science. Specific
tools and programs, such as peer review and Structured Decision Making,
are similarly designed to identify and use best science.
To the extent that H.R. 4317 would codify consultation with States
and tribes, it appears duplicative of existing programs and efforts;
however, if H.R. 4317 results in the data from States and tribes being
defined as either the `best available' or equal in quality to other
`best available' information, it would undermine the existing intent
under ESA that science (whatever its source) be fairly evaluated in an
impartial manner, and only then that the `best available science' be
employed in decisionmaking.
Generally, Federal agencies receive judicial deference on
scientific and technical issues. This deference reflects the expertise
of the agencies on such matters. Nevertheless, Federal scientists are
not infallible; there exist numerous programs to take corrective
actions, or to use `adaptive management' to improve the quality and use
of science. While stakeholders (including States and tribes) may be
dissatisfied with individual agency actions, there are already
mechanisms available for review and consultation and techniques and
tools by which the decisions of Federal agencies can be examined and
amended by the agency concerned. Encouraging the wider use of such
cooperative and engaged approaches would likely meet the objectives of
stakeholders and enhance both transparency and the application of best
available science.
In 2000, I led a program designed to address a seemingly
intractable debate--whether deepening the shipping channel of the
Columbia River would harm endangered fish. The opinions of three
regulatory agencies (NOAA, USFWS, and EPA), of the action agency
(USACE), and of numerous stakeholders (including States and tribes)
were in conflict. The parties agreed to a neutral and impartial
process, in an attempt to resolve their differences over interpretation
of the science. Over the course of 7 months, the parties met and
debated the science in public, with the guidance of a team of nine
eminent scientists. New science was commissioned. At the end of the
process, there was an unequivocal result and finding: deepening of the
channel would not harm the fish. In this case, entrenched positions
were abandoned, a cooperative program was adopted, and Federal
scientists were willing to change their opinions.
Late last year, I helped carry out an independent peer review of
some of the science underlying the USFWS's proposal to de-list the Gray
Wolf under the ESA. A panel of independent scientists was convened by
NCEAS at the request of the USFWS. In the course of their review, the
panelists unanimously concluded that the USFWS's position on the
taxonomy and genetics of wolves was not rooted in the `best available
science'. Note that the USFWS has not yet made a final determination on
its proposal, and, thus, it is not yet clear how this scientific
finding will be used. Nevertheless, the fact that the USFWS sought and
received truly independent review, which did then not concur with the
agency's position, is indicative that we already have processes in
place that can identify situations when corrective action may be
warranted.
There are many other examples where stakeholder input can help
improve decisionmaking by Federal agencies. To name just one, the wind
energy/wildlife guidelines, developed with the aid of a Federal
Advisory Committee, are widely acknowledged to be a good,
scientifically based program.
Legislation that re-defines what constitutes `best available
science' cannot be effective in swaying the minds of scientists
themselves, who will continue to evaluate science based upon tried and
trusted criteria such as logical consistency, replicability and the
weight of evidence. Efforts to improve Federal decisionmaking under ESA
may instead be best served by programs that provide opportunity and
resources for increased consultation and collaborative assessments. The
Columbia River program in 2000 cost some $500,000; the recent wolf peer
review, much less. There are many options for improving the
availability of programs to improve scientific evaluations, scaling
from standing FACA committees, to once-off public meetings, to small
scale document reviews. All of these may have value when used
appropriately, and all are currently available to the agencies
concerned.
literature
Review of Proposed Rule Regarding Status of the Wolf Under the
Endangered Species Act. 2014. National Center for Ecological Analysis
and Synthesis.
Science Review of Testimony in the Delta Cases; Summary Report 2013
Atkins and RESOLVE.
Evaluation of Scientific Information regarding Preble's Meadow Jumping
Mouse 2007 SEI.
Scientific evaluation of the status of the Northern Spotted Owl 2004
SEI.
Reducing Uncertainty and Risk: Peer Review of the Potential Impact of
Dredging and Disposal on At-Risk Salmonids in the Lower Columbia River
Estuary, 2001 SEI.
Comprehensive Guide to Studying Wind-energy Wildlife Interactions.
National Wind Coordinating Collaborative 2011.
Lesser Prairie Habitat Exchange (documents at http://
www.thehabitatexchange.org/species/lesser-prairie-chicken/).
______
The Chairman. Thank you very much, Dr. Courtney. I will
next recognize Mr. Michael Bean, Counselor to the Assistant
Secretary for Fish and Wildlife and Parks at the U.S.
Department of the Interior, here, in Washington, DC.
And, Mr. Bean, you are recognized for 5 minutes.
STATEMENT OF MICHAEL BEAN, COUNSELOR TO THE ASSISTANT
SECRETARY, FISH AND WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE
INTERIOR, WASHINGTON, DC
Mr. Bean. Thank you, sir. Chairman Hastings, Representative
Grijalva, members of the committee, I am Michael Bean,
Counselor for Fish, Wildlife, and Parks at the Interior
Department.
I want to begin by noting that the Fish and Wildlife
Service is committed to the use of the best science available
in its ESA listing decisions, as the law requires it to do. The
Service is also committed to transparency in its decisionmaking
processes.
In furtherance of that goal of transparency, it is the
established practice of the Fish and Wildlife Service to make
available the relevant scientific and commercial data on which
it relies when making listing decisions. That data is generally
maintained in the field offices that have the lead for those
listing decisions. In addition, a list of literature, studies,
and other relevant data, and copies of pivotal documents are
posted on regulations.gov.
Service listing decisions are carefully crafted, fully
explained, and copiously documented, addressing each of the
factors that Congress has specified as relevant to those
listing decisions.
We are pleased that the bills under consideration today
seek to further the goals of science-based decisionmaking and
transparency. We do not, however, support them in their current
form, for reasons that I will explain.
Let me begin by noting that we strongly agree that States,
the data from States, is often the best available data for us.
Because of the extensive experience and responsibilities of the
States, the ESA already directs the Service to carefully
consider the information that States provide. The Service must
take into account the work of the States in its listing
decisions. And the Service must provide the States with a
written explanation whenever it makes a listing decision at
odds with the recommendations of a State.
However, not all States have responsibilities or programs
for all the types of species eligible for ESA listing: in
particular, plants and invertebrates. For species such as
these, for example, the best available data may come from
universities, museums, conservation organizations, and
industry. For counties and tribes, the situation is more
varied. In most States, the jurisdiction and responsibility for
wildlife rests with the State, not with the counties, which
generally have no research programs related to ESA listing
decisions.
Given these facts, it is apparent that the question of what
constitutes the best available data should turn on an
evaluation of the data itself, and not who provided it. To
presume at the outset that the data from a particular source
will always constitute the best available data would negate the
very purpose of requiring the use of the best available data.
Moreover, it is clear that data from States, counties, and
tribes cannot all constitute the best available data when the
data from these sources are in conflict, as they sometimes are.
Frequently the publications, studies, and reports on which
the Service relies are based upon underlying data collected and
maintained by the States, who control access to it. State law
sometimes stringently restricts the release of certain wildlife
data, as does the State of Texas, for example. There are a
variety of reasons why the States choose to limit access to
wildlife data: either it reveals the location of sensitive
species, could expose those species to collecting, disturbance,
or vandalism. In addition, States often depend upon private
land owners who give them access to their lands to gather
wildlife data. Maintaining that access may mean respecting the
land owner's desire to avoid unwanted trespassers, poachers, or
simple curiosity-seekers.
The bottom line, however, is that the raw data underlying
the publications, reports, and studies on which the Service
routinely relies may not ever be in the possession or control
of the Service. Thus, to the extent that H.R. 4315 is intended
to require the Service to post such data on the Internet, it
may create an obligation impossible to fulfill, and provide yet
a new basis for challenging the validity of listing or de-
listing decisions.
Finally, with respect to the two bills concerning
litigation costs, it is not clear that they would have the
effect of allowing more resources to be devoted to
conservation, but may instead have the opposite effect. With
respect to all four bills, we would be pleased to work with the
committee to find effective ways of addressing the issues
raised by those bills. Thank you, Mr. Chairman.
[The prepared statement of Mr. Bean follows:]
Prepared Statement of Michael J. Bean, Counselor to the Assistant
Secretary, Fish and Wildlife and Parks, Department of the Interior on
H.R. 4315, H.R. 4316, H.R. 4317, and H.R. 4318
Chairman Hastings, Ranking Member DeFazio, and members of the
committee, I am Michael J. Bean, Counselor to the Assistant Secretary
for Fish and Wildlife and Parks at the Department of the Interior
(Department). I appreciate the opportunity to testify before you today
regarding four bills to amend the Endangered Species Act of 1973 (ESA).
Although the Department cannot support these four bills in their
current form, the Service recognizes the importance of data
transparency and availability and is willing to work with the committee
to address the issues that the bills raise.
overview of the endangered species act
The ESA provides a critical safety net for America's native fish,
wildlife, and plants. And we know it can deliver remarkable successes.
Since Congress passed this landmark conservation law in 1973, the ESA
has prevented the extinction of hundreds of imperiled species across
the Nation and has promoted the recovery of many others--like the bald
eagle, the very symbol of our Nation's strength.
Earlier this year, the Service published a proposal to recognize
the recovery of, and to remove from the protection of the ESA, the
Oregon chub, a fish native to rivers and streams in the State of
Oregon. The recovery of the Oregon chub is noteworthy because it is
attributable in significant part to the cooperation of private
landowners who entered into voluntary conservation agreements to manage
their lands in ways that would be helpful to this rare fish. In some
cases, landowners agreed to cooperate in reintroducing the fish into
suitable waters on their property. The help of private landowners and
the cooperation of State and Federal partners were critical to the
success in bringing this fish to the point at which it is no longer
endangered and no longer in need of the protection of the ESA.
The recovery of the Oregon chub has taken a little more than 20
years of sustained effort. That is a relatively speedy timeframe within
which to undo the effects of what are often many decades of habitat
loss and degradation and the other threats that are responsible for the
endangerment of many species. For example, the recovery and delisting
of the bald eagle was the culmination of a 40-year conservation effort.
The Aleutian Canada goose recovery took 34 years. Efforts to recover
the whooping crane have been under way since the 1940s when fewer than
20 cranes remained. Those efforts have been dramatically successful,
with a wild population today of several hundred birds. Likewise, the
California condor and black-footed ferret, both of which were so
perilously close to extinction that no individuals of either species
survived in the wild, have made extraordinary progress. Today condors
and ferrets have been successfully bred in captivity and reintroduced
to the wild, where they have successfully produced wild-born offspring.
Despite the dramatic progress toward recovery that each of these
species has made, the whooping crane, California condor and black-
footed ferret are still endangered species and will likely remain so
for many more years. That is the virtually inevitable consequence of
waiting until a species has been greatly depleted before beginning
efforts to recover it, as is the case for most species protected under
the Endangered Species Act.
As the Oregon chub example makes clear, private landowners can
hasten the recovery of endangered species through their cooperative
efforts. The Oregon chub is just one of many endangered species that
landowners are helping recover through voluntary agreements with the
Service known as ``safe harbor agreements.'' These agreements provide
participating private property owners with land-use certainty in
exchange for actions that contribute to the recovery of listed species
on non-Federal lands. Safe harbor agreements with Texas ranch owners
have helped restore the northern aplomado falcon to the United States,
from which it had been absent for roughly a half century. In the
southeastern United States, more than 400 landowners have enrolled
nearly 2.5 million acres of their land in safe harbor agreements for
the endangered red-cockaded woodpecker. These landowners have
effectively laid out the welcome mat for this endangered bird on their
land, as a result of which populations of this endangered bird are
growing on many of these properties. Many others are doing similarly
for other endangered species.
Thus, the Endangered Species Act provides great flexibility for
landowners, States and counties to work with the Fish and Wildlife
Service on voluntary agreements to protect habitat and conserve
imperiled species. Through Safe Harbor Agreements, Candidate
Conservation Agreements, Habitat Conservation Plans, Experimental
Population authority, and the ability to modify the prohibitions on
take of endangered species in Section 9 by crafting special rules for
threatened species under Section 4(d), the Act allows and encourages
creative, collaborative, voluntary practices that can align landowner
objectives with conservation goals.
h.r. 4315 and h.r. 4317: data quality and accessibility
If enacted, H.R. 4315, the 21st Century Endangered Species
Transparency Act, would establish a requirement to make publically
available on the Internet the best scientific and commercial data that
are the basis for each listing determination. If H.R. 4317 were
enacted, the State, Tribal, and Local Species Transparency and Recovery
Act would amend the ESA to require FWS provide States with all data
used in ESA Section 4(a) determinations prior to making its
determination, and define ``best available scientific and commercial
data'' to include all data submitted by a State, or tribal or county
government.
``Best Available'' Data
The decisions that the Fish and Wildlife Service makes with respect
to listing or delisting of species must be made ``solely on the basis
of the best scientific and commercial data available.'' Congress added
this explicit directive in 1982, in response to the perception that
some listing decisions then were being influenced by non-scientific
considerations. Congress made clear then that the threshold decision of
whether a species is endangered or threatened is a scientific judgment
to be informed by the best available information alone.
Often, the States are among the best sources of such information,
particularly with respect to game and other actively managed species.
However, some States lack authority or programs to conserve certain
species that are eligible for protection under the Endangered Species
Act, such as invertebrates and plants, and therefore collect
insufficient data. Counties and other units of local government
generally have neither jurisdiction nor programs to manage wildlife.
For all of these reasons, the best available scientific information may
come from such sources as universities, museums, conservation
organizations, and industry. Thus, to define ``best scientific and
commercial data available'' as always including data submitted by a
State, tribal or county government--as H.R. 4317 does--may not always
be accurate. Section 4(b)(1) of the Act already requires the Service to
take into account the efforts and views of States and their political
subdivisions when making listing decisions, and Section 4(i) requires
the Service, if it makes a listing determination at odds with the
recommendations of a State, to provide that State with a written
explanation of the reasons for doing so. Finally, it should be noted
that defining all data submitted by States or counties as the ``best
available,'' would create a quandary if there were conflicting data
from such sources. A concrete recent example concerned several counties
in Kansas who took strong exception to the conservation plan for the
lesser prairie-chicken that the State proposed. The counties and the
State took diametrically opposed positions based on conflicting data.
In this example, both cannot be the ``best available.''
As noted, the studies, reports, and research publications by State
agencies or their employees are often the best studies and analyses
available to the Service. A broad-ranging requirement to post on the
Internet this State data--particularly if that requirement extends to
the raw data underlying such studies and analyses--would almost
certainly elicit a number of well-considered concerns from the States
themselves. Those concerns would start with the fact that in some
instances State law prohibits the release of certain wildlife data. For
example, Texas Government Code Section 403.454 prohibits the disclosure
of information that ``relates to the specific location, species
identification, or quantity of any animal or plant life'' for which a
conservation plan is in place or even under consideration.
Even where there is no State law barrier to releasing the raw data
underlying State studies, there are many reasons why States would be
reluctant to have that data widely disseminated via the Internet. To
the extent that such data reveals the location of rare or sensitive
species, its disclosure would put such species at added risk, both from
collectors or vandals as well as from people with entirely innocent
motives, such as the desire to get an up-close photo of an eagle and
its young in their nest, or of prairie-chickens displaying on their
mating grounds.
The ability of States, and of scientific researchers generally, to
gather wildlife data often depends upon the willingness of private
landowners to grant them access to their lands. Many landowners can
reasonably be expected to be less likely to grant such access if they
know that the data collected on their land would be posted on the
Internet. Their concerns might include the well-being of the wildlife
on their land as well as their own sense of privacy and desire not to
have to contend with trespassers, vandals, and simple curiosity
seekers. The disclosure requirement that the sponsors of H.R. 4315
intend to produce better scientific data could have the unintended
consequence of reducing the amount and quality of such data. While the
Service is willing to explore other approaches, it has generally found
satisfactory to most States and researchers its current records
management process. As part of that process, the Service makes
available all of the relevant scientific and commercial data that it
has and on which it relies in making a listing determination under
Section 4(a)(1) of the ESA. The data is generally maintained at the
field office that is the lead for making the listing determination.
Additionally, a list of literature, studies, and other relevant data
used in making the determination and copies of pivotal documents are
posted on Regulations.Gov, the government Web site for electronic
records and public comments. These documents are generally made
available to the public electronically upon request. However, there may
be limitations to the release of certain data if it falls within one of
the exceptions to disclosure under the Freedom of Information Act (for
example, the Service sometimes obtains from the Defense Department
certain high resolution photographs that the Department requests not be
released to the public because of national defense considerations). In
these cases, the Service refers the requester to the party from which
the data originated. Further, in many circumstances, such as peer-
review published literature, FWS relies on a synthesis or analysis of
data that is summarized by the prevailing scientific expert or author
of the paper. In such circumstances, FWS relies on the expert
evaluation and analysis of the data and may not have in its possession
or be able to obtain the underlying data.
h.r. 4316 and h.r. 4318: litigation reform
The Endangered Species Recovery Transparency Act, H.R. 4316, would
require the Secretaries of the Interior and Commerce to provide an
annual report to Congress detailing litigation expenditures from
agencies within their respective Departments within 90 days of fiscal
yearend. Agencies would need to provide the Secretary with detailed
information, including a description of the claims; the amounts of
resources expended responding to notices of intent to sue letters and
all other actions in preparation of or related to litigation, as well
as attorney's fees awarded and the basis for such awards. H.R. 4318,
the Endangered Species Litigation Reasonableness Act would limit the
hourly rate for prevailing attorney fees to $125 per hour, thereby
focusing resources on conservation and recovery rather than litigation.
In consultation with Department of Interior's Solicitor's Office, we
find it is unclear whether the amendment as drafted would actually
amend the ESA to place a cap on fees and awards and, even if it did,
considering the complex interplay between the provisions of the Equal
Access to Justice Act and the Endangered Species, whether doing so
would have the intended effect.
The Service would like to explore with the committee whether there
are administratively easier means of tracking and reporting fee awards
than what has been proposed.
conclusion
In closing, Mr. Chairman, America's fish, wildlife, and plant
resources belong to all Americans, and ensuring the health of imperiled
species is a shared responsibility for all of us. In implementing the
ESA, the Service endeavors to adhere rigorously to the congressional
requirement that implementation of the law be based strictly on
science. At the same time, the Service has been responsive to the need
to develop flexible, innovative mechanisms to engage the cooperation of
private landowners and others under the Endangered Species Act and
other laws, both to preclude the need to list species where possible,
and to speed the recovery of those species that are listed. The Service
remains committed to conserving America's fish and wildlife by relying
upon the best available science and working in partnership to achieve
recovery. Thank you for your interest in endangered species
conservation and ESA implementation, and for the opportunity to
testify.
______
The Chairman. Thank you very much, Mr. Bean, for your
testimony. Next I will recognize Mr. Sam Rauch, Deputy
Assistant Administrator for Regulatory Programs for the
National Marine Fisheries Service, Department of Commerce,
here, in Washington, DC. Recognized for 5 minutes.
STATEMENT OF SAM RAUCH, DEPUTY ASSISTANT ADMINISTRATOR FOR
REGULATORY PROGRAMS, NATIONAL MARINE FISHERIES SERVICE,
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S.
DEPARTMENT OF COMMERCE, WASHINGTON, DC
Mr. Rauch. Good morning, Mr. Chairman, members of the
committee. Thank you for the opportunity to testify before you
today. My name is Sam Rauch, and I am the Deputy Assistant
Administrator for Regulatory Programs at the National Marine
Fisheries Service. We jointly administer the Endangered Species
Act with the Fish and Wildlife Service, and our focus is mainly
on ocean species and Pacific salmoides, as they go inland.
The purpose of the Endangered Species Act is to conserve
threatened and endangered species and their ecosystems.
Congress passed the law on December 28, 1973, recognizing that
the natural heritage of the United States was of aesthetic,
ecological, educational, recreational, and scientific value to
our Nation and its people.
It was understood that, without protection, many of our
Nation's living resources would become extinct. The Endangered
Species Act has been successful in preventing species
extinction. Less than 1 percent of the species listed under the
law have gone extinct, and over 30 species have recovered.
The National Marine Fisheries Service has recently de-
listed the eastern population of Steller sea lions. This is the
first de-listing for our agency that has occurred because of
recovery since 1994, when we de-listed the now-thriving eastern
population of Pacific gray whales.
Actions taken under the Endangered Species Act have also
stabilized or improved the downward population trend of many
marine species. For example, in 2013 we saw record returns of
nearly 820,000 adult fall Chinook salmon passing the Bonneville
Dam on their way up the Columbia River to spawn. This is the
most fall Chinook salmon to pass the dam in a single year,
since the dam was completed in 1938, and more than twice the
10-year average.
Recovery of threatened and endangered species is a complex
and challenging process. We are engaged in a range of
activities under the Endangered Species Act that include
listing species and designating critical habitat, consulting on
Federal actions that may affect a listed species or its
designated critical habitat, and authorizing research to learn
more about protected species.
We also partner with a variety of stakeholders, including
private citizens, Federal, State, and local agencies and
tribes, and interested organizations and industry that have
been critical to implementing recovery actions and achieving
species recovery goals.
For example, several NMFS programs provide support to our
partners to assist with achieving recovery goals. From 2000 to
2012, the Pacific Coastal Salmon Recovery Fund provided almost
$1 billion in funding to support partnerships in the recovery
of listed salmon and steelhead.
From 2003 to 2013, the Species Recovery Grants to States
awarded 37 million to support State recovery and research
projects for other listed species. And from 2001 to 2013, the
Prescott Program awarded over $44.8 million in funding through
483 grants to Stranding Network members to respond and care for
stranded marine mammals.
The National Marine Fisheries Service is dedicated to the
stewardship of living marine resources through science-based
conservation and management. The Endangered Species Act is a
mechanism that helps guide our conservation efforts, and
reminds us that our children deserve the opportunity to enjoy
the same natural world we experience.
We are currently analyzing the four legislative proposals
that were recently introduced into the House of Representatives
regarding the Endangered Species Act, and we would be happy to
work cooperatively with you on these draft bills.
Thank you again for the opportunity to discuss the
implementation of the Endangered Species Act, and I am
available to answer any questions you may have.
[The prepared statement of Mr. Rauch follows:]
Prepared Statement of Sam Rauch, Deputy Assistant Administrator for
Regulatory Programs, National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, U.S. Department of Commerce on
H.R. 4315, H.R. 4316, H.R. 4317, and H.R. 4318
introduction
Good morning, Mr. Chairman and members of the committee. Thank you
for the opportunity to testify before you today. My name is Sam Rauch
and I am the Deputy Assistant Administrator for Regulatory Programs for
the National Oceanic and Atmospheric Administration's (NOAA) National
Marine Fisheries Service (NMFS) in the Department of Commerce. NMFS is
dedicated to the stewardship of living marine resources through
science-based conservation and management.
This year we celebrate the 40th Anniversary of the Endangered
Species Act (ESA). The purpose of the ESA is to conserve threatened and
endangered species and their ecosystems. Congress passed the ESA on
December 28, 1973, recognizing that the natural heritage of the United
States was of ``esthetic, ecological, educational, recreational, and
scientific value to our Nation and its people.'' It was understood
that, without protection, many of our Nation's living resources would
become extinct. There are more than 2,140 species listed under the ESA.
A species is considered endangered if it is in danger of extinction
throughout all or a significant portion of its range. A species is
considered threatened if it is likely to become endangered in the
foreseeable future. The U.S. Fish and Wildlife Service (USFWS) within
the Department of the Interior and NMFS share responsibility for
implementing the ESA. NMFS is responsible for 93 marine species, from
whales to sea turtles and salmon to Johnson's sea grass.
nmfs implementation of the esa
NMFS conserves and recovers marine resources by doing the
following: listing species under the ESA and designating critical
habitat (section 4); developing and implementing recovery plans for
listed species (section 4); developing cooperative agreements with and
providing grants to States for species conservation (section 6);
consulting on any Federal agency actions where the agency determines
that the action may affect a listed species or its designated critical
habitat and to minimize the impacts of incidental take (section 7);
partnering with other Nations to ensure that international trade does
not threaten species (section 8); enforcing against violations of the
ESA (sections 9 and 11); cooperating with non-Federal partners to
develop conservation plans for the long-term conservation of species
(section 10); and authorizing research to learn more about protected
species (section 10).
How Species are Listed or Delisted
Any individual or organization may petition NMFS or USFWS to
``list'' a species under the ESA. If a petition is received, NMFS or
USFWS must determine within 90 days if the petition presents enough
information indicating that the listing of the species may be
warranted. If the agency finds that the listing of the species may be
warranted, it will begin a status review of the species. The agency
must, within 1 year of receiving the petition, decide whether to
propose the species for listing under the ESA. NMFS may, on its own
accord, also initiate a status review to determine whether to list a
species. In that instance, the statutory timeframes described above do
not apply. The same process applies for delisting species.
NMFS or the USFWS, for their respective species, determine if a
species should be listed as endangered or threatened because of any of
the following five factors: (1) present or threatened destruction,
modification, or curtailment of its habitat or range; (2)
overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) inadequacy of
existing regulatory mechanisms; and (5) other natural or manmade
factors affecting its continued existence. The ESA requires that
listing and delisting decisions be based solely on the best scientific
and commercial data available. The Act prohibits the consideration of
economic impacts in making species listing decisions. The ESA also
requires designation of critical habitat necessary for the conservation
of the species; this decision does consider economic impacts.
The listing of a species as endangered makes it illegal to ``take''
(harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
collect, or attempt to do these things) that species. Similar
prohibitions usually extend to threatened species. Federal agencies may
be allowed limited take of species through interagency consultations
with NMFS or USFWS. Non-Federal individuals, agencies, or organizations
may have limited take through special permits with conservation plans.
Effects to the listed species must be minimized and in some cases
conservation efforts are required to offset the take. NMFS' Office of
Law Enforcement works with the U.S. Coast Guard and other partners to
enforce and prosecute ESA violations.
Interagency Consultation and Cooperation
All Federal agencies are directed, under section 7 of the ESA to
utilize their authorities to carry out programs for the conservation of
threatened and endangered species. Federal agencies must also consult
with NMFS on activities that may affect a listed species or its
designated critical habitat. These interagency consultations are
designed to assist Federal agencies in fulfilling their duty to ensure
Federal actions do not jeopardize the continued existence of a listed
species or destroy or adversely modify designated critical habitat.
Biological opinions document NMFS' opinion as to whether the Federal
action is likely to jeopardize the continued existence of listed
species or adversely modify their designated critical habitat. Where
appropriate, biological opinions provide an exemption for the ``take''
of listed species while specifying the extent of take allowed, the
Reasonable and Prudent Measures necessary to minimize impacts from the
Federal action, and the Terms and Conditions with which the action
agency must comply. Should an action be determined to jeopardize a
species or adversely modify critical habitat, NMFS will suggest
Reasonable and Prudent Alternatives, which are alternative methods of
project implementation that would avoid the likelihood of jeopardy to
the species or adverse modification of critical habitat. Nationally,
NMFS conducts approximately 1,200 ESA consultations per year.
species recovery
Recovery of threatened and endangered species is a complex and
challenging process, but one which also offers long-term benefits to
the health of our environment and our communities. Actions to achieve a
species' recovery may require restoring or preserving habitat,
minimizing or offsetting effects of actions that harm species,
enhancing population numbers, or a combination of all of these actions.
Many of these actions also help to provide communities with healthier
ecosystems, cleaner water, and greater opportunities for recreation,
both now and in future generations.
Partnerships with a variety of stakeholders, including private
citizens, Federal, State and local agencies, tribes, interested
organizations, and industry, are critical to implementing recovery
actions and achieving species recovery goals. Several NMFS programs,
including the Species Recovery Grants to States and Tribes and the
Pacific Coastal Salmon Recovery Fund, and the Prescott Marine Mammal
Rescue Assistance Grant Program provide support to our partners to
assist with achieving recovery goals. From 2000-2012 the Pacific
Coastal Salmon Recovery Fund has provided $1.03 billion in funding to
support partnerships in the recovery of listed salmon and steelhead.
From 2003-2013 the Species Recovery Grants to States has awarded $37
million to support State recovery and research projects for other
listed species. From 2001-2013 the Prescott Program awarded over $44.8
million in funding through 483 grants to Stranding Network members to
respond and care for stranded marine mammals.
endangered species act successes
The ESA has been successful in preventing species extinction--less
than 1 percent of the species listed have gone extinct. Despite the
fact that species reductions occurred over often very long time
periods, in its 40 year existence, the ESA has helped recover over 30
species. NMFS has recently delisted the Eastern population of Steller
sea lion, our first delisting since 1994 when NMFS delisted the now
thriving eastern population of Pacific gray whales. Between October 1,
2010, and September 30, 2012, of the 70 domestic endangered or
threatened marine species listed under the ESA, 27 (39 percent) were
stabilized or improving, 16 (23 percent) were known to be declining, 6
(8 percent) were mixed, with their status varying by population
location, and 21 (30 percent) were unknown, because we lacked
sufficient data to make a determination.
In addition to Pacific gray whales and Eastern Steller sea lions,
ESA recovery actions have stabilized or improved the downward
population trend of many marine species. For example, listed humpback
populations are currently growing by 3-7 percent annually. In 2013, we
saw record returns of nearly 820,000 adult fall Chinook salmon passing
the Bonneville Dam on their way up the Columbia River to spawn. This is
the most fall Chinook salmon to pass the dam in a single year since the
dam was completed in 1938, and more than twice the 10-year average of
approximately 390,000. A substantial number of Hawaiian monk seals are
alive today because of direct interventions by the NMFS Recovery
Program. Because of these efforts directed at monk seals, the
population is 30 percent larger than if we had not acted, offering hope
for future recovery and assurance our actions are making a difference.
We face continuing challenges in recovering numerous other species.
Declines in habitat in coastal areas from wetlands to coral reefs is
often a major causative factor. As stresses on coastal ecosystems
increase, it is important to place a priority on habitat protection and
restoration in order to prevent listings and facilitate recovery and
delisting.
pending legislative proposals
NMFS is currently analyzing the four legislative proposals that
were recently introduced into the House of Representatives: H.R. 4315,
the ``21st Century Endangered Species Transparency Act,'' H.R. 4316,
the ``Endangered Species Recovery Transparency Act,'' H.R. 4317, the
``State, Tribal, and Local Species Transparency and Recovery Act,'' and
H.R. 4318, the ``Endangered Species Litigation Reasonableness Act.''
conclusion
Extinctions are currently occurring at a rate that is unprecedented
in human history. Each plant, animal, and their physical environment is
part of a much more complex web of life. Because of this, the
extinction of a single species can cause a series of negative events to
occur that affect many other species. Endangered species also serve as
``sentinel'' species to indicate larger ecological problems that could
affect the functioning of the ecosystem and likely humans as well. As
importantly, species diversity is part of the natural legacy we leave
for future generations. The wide variety of species on land and in our
ocean has provided inspiration, beauty, solace, food, livelihood and
economic benefit, medicines and other products for previous
generations. The ESA is a mechanism to help guide conservation efforts,
and to remind us that our children deserve the opportunity to enjoy the
same natural world we experience.
Thank you again for the opportunity to discuss implementation of
the Endangered Species Act. We would be happy to work cooperatively
with the committee on these draft bills and would welcome the
opportunity to discuss the legislation in more detail. I am available
to answer any questions you may have.
______
The Chairman. Thank you very much, Mr. Rauch. And our last
witnesses--for purposes of introduction, I will recognize my
colleague from Colorado, Mr. Tipton.
Mr. Tipton. Thank you, Mr. Chairman, and I would certainly
like to welcome today a friend of mine from my home area in my
district in Colorado, Tom Jankovsky. He is a County
Commissioner in Garfield County in Colorado, a third-generation
native Coloradan who is serving his first term as the Garfield
County Commissioner.
Commissioner Jankovsky serves on the public lands lead for
the Board of County Commissioners. During his tenure he has
also served on the Garfield County Human Services Commission,
the Garfield County Clean Energy Board, the county's Investment
Advisory Board, and as a member of the Compressed Natural Gas
Collaborative in Western Colorado.
The commissioner is currently working as a General Manager
for Sunlight Mountain Resort in Glenwood Springs, Colorado. He
has held that position at the ski area since 1985. And Tom was
inducted into the Colorado Ski and Snowboard Hall of Fame in
2012. I am still trying to secure a picture of Tom on a
snowboard. He is currently on the board, and is past Chair for
Colorado Ski Country USA.
I certainly appreciate him, Mr. Chairman, taking the trip,
and look forward to his testimony. And, with that, I yield
back.
The Chairman. Mr. Jankovsky, you are recognized for 5
minutes.
STATEMENT OF THE HON. TOM JANKOVSKY, COMMISSIONER, GARFIELD
COUNTY, COLORADO
Mr. Jankovsky. Thank you, Mr. Chairman and honorable
members of the committee. I am here to speak in favor of H.R.
4315 and H.R. 4317 about the issues of transparency between
local, State, and Federal Governments regarding the Endangered
Species Act, as it relates to the potential listing of the
greater sage-grouse.
The underpinning message to be conveyed is there is a
serious lack of openness and fairness, transparency, in
decisions being made by State and Federal agencies that are
hidden behind the cloak of the ESA that have serious impacts on
local communities. Information used by these agencies to make
extraordinary decisions with enormous impacts on local
communities, such is done with ESA, should be available for
review and verification by those it impacts. To operate
otherwise furthers the appearance--and perhaps the fact--that
the information is inaccurate, misleading, has no scientific
basis, and is agenda-driven by special interests. Therefore, by
design, it is meant to be hidden from objective review. And,
ironically, the ultimate casualty is the ESA and the species it
is meant to protect.
At the local level, Garfield County has experienced this
lack of transparency and freedom of information, as a
cooperating agency with the BLM in the greater sage-grouse EIS.
From the start, as a cooperating agency, we questioned the
accuracy of habitat maps produced by the Colorado Department of
Parks and Wildlife and used by the BLM in the development of
the alternatives.
The greater sage-grouse habitat in Garfield County is
unique. It is fragmented, located on ridgetops, with
significant drops into valley floors. In our research and
discussions with CPW it was discovered that the mapping was
prepared at a 50,000-foot view, based on very coarse vegetation
data, a subjective occupied range map, and a 4-mile lek buffer
that assumes large expanses of intact habitat. Ultimately,
contrary to Federal requirements, the map is not reproducible,
and is based on data that the agency used--refuses to release
to the public, despite a Colorado open records request. As a
result, we were left to create our own habitat maps at
considerable expense. The map developed by Garfield County
shows a 70 percent reduction in habitat.
I have questioned how the greater sage-grouse could ever be
listed as an endangered or threatened species. The current
estimated population numbers for the greater sage-grouse are
reported to be between 350,000 and 535,000 birds, which is 70
to 107 times greater than the minimum effective population. At
the reported current rate of decline of 1.4 percent per year,
it would take 300 years for the population to dwindle to the
minimum effective population.
In our view, there remains the fundamental breakdown in the
types of information used to make decisions. For example, it
has been reported that between 2001 and 2007, hunters bagged
207,000 birds. Additionally, 9,000 birds were harvested in
Nevada alone in 2009 and 2010, which is just shy of the total
number of birds currently estimated for the State of Colorado.
As a cooperating agency, we also question the science used
in the EIS, which has adopted policies contained in the
national technical team report. We question the science behind
the 3 percent disturbance cap on development and habitat. This
winter our own Governor Hickenlooper wrote to the U.S. Fish and
Wildlife Service and Colorado's formal comments, ``It is our
understanding that there is limited scientific evidence that
supports either of the two numbers currently in play for
anthropogenic disturbance. Imposing an arbitrary cap on the
landscape could have catastrophic impacts on resource use.''
Garfield County requests for data use by State and Federal
agencies concerning the greater sage-grouse EIS has been denied
or not responded to. Through our biologist, Dr. Rob Ramey, we
have requested population and population count data from the
U.S. Fish and Wildlife Service to no avail. We would appreciate
this committee's interceding on our behalf to obtain this data
as soon as possible.
I support H.R. 4315 and H.R. 4317. Greater transparency and
sharing of data will help local governments affected by ESA
decisions that will have lasting social economic impacts on our
communities.
Thank you for your time and assistance in this matter.
[The prepared statement of Mr. Jankovsky follows:]
Prepared Statement of the Hon. Tom Jankovsky, Commissioner, Garfield
County, Colorado on H.R. 4315 and H.R. 4317
Thank you Mr. Chairman and members of the committee.
My name is Tom Jankovsky, County Commissioner from Garfield County,
Colorado.
I am here to speak in favor of H.R. 4315 and H.R. 4317 about the
issue of transparency between local, State and Federal governments
regarding the Endangered Species Act as it relates to the potential
listing of the Greater Sage Grouse. The underpinning message to be
conveyed is there is a serious lack of openness and fairness
(transparency) in decisions being made by State and Federal agencies
that are hidden behind the cloak of the ESA that have serious impacts
on local communities.
Information used by these agencies to make extraordinary decisions
with enormous impacts on local communities such as is done with the ESA
should be available for review and verification by those it impacts. To
operate otherwise, furthers the appearance and perhaps the fact that
the information is inaccurate, misleading, and erroneous, has no
scientific basis, and is agenda driven by special interests. Therefore
by design is meant to remain hidden from objective review and
ironically, the ultimate casualty is the ESA and the species it is
meant to protect.
At the local level, Garfield County experienced this lack of
transparency and freedom of information, as a Cooperating Agency with
the Bureau of Land Management (BLM) in the Greater Sage Grouse
Environmental Impact Statement (EIS). From the start, as a Cooperating
Agency we questioned the accuracy of habitat maps produced by the
Colorado Department of Parks and Wildlife (CPW) and used by BLM in the
development of the alternatives in the Greater Sage Grouse EIS.
The Greater Sage Grouse habitat in Garfield County is unique, it is
fragmented, located on ridge tops with significant drops into valley
floors. In our research and discussions with CPW, it was discovered
that the mapping was prepared at a 50,000 ft. view; based on very
coarse vegetation data, a subjective occupied range map, and a 4-mile
lek buffer that assumes large expanses of intact habitat. Ultimately,
contrary to Federal requirements, the map is not reproducible and is
based on data that the agency refuses to release to the public, despite
a Colorado Open Records Act request and offers for data sharing
agreement protections. As a result, we were left to create our own
habitat maps at considerable expense. The map developed by Garfield
County shows a 70 percent reduction in habitat.
A transparent review and validation of CPW data could have resulted
in a habitat map that is effective for proper bird management in
Garfield County's highly unique habitat; instead, we have two radically
different habitat maps, where CPW's inaccurate map will produce lasting
and extraordinary socio-economic impacts to our region.
I have questioned how the Greater Sage Grouse could ever be listed
as an endangered or threatened species. The current estimated
population numbers for the Greater Sage Grouse are reported to be
between 350,000 and 535,000 birds which is 70 to 107 times greater than
the ``minimum effective population.'' At the reported current rate of
decline of 1.4 percent per year (nationally assumed), it would take 300
years for the population to dwindle to the minimum effective
population. How can the current status warrant inclusion on the
endangered species list?
In our view, there remains a fundamental breakdown in the types of
information used to make decisions. For example, it has been reported
that between 2001-2007 hunters bagged 207,000 birds. Additionally,
9,000 birds were harvested in Nevada alone in 2009 and 2010 which is
just shy of the total number of birds currently estimated for the
entire State of Colorado.
As a Cooperating agency we also question the science used in the
EIS, which has adopted policies contained in the National Technical
Team (NTT) Report. We question the science behind the 3 percent
disturbance cap on development in habitat. This winter, our own
Governor Hickenlooper wrote to the U.S. Fish & Wildlife Service in the
Colorado's formal comments, ``It is our understanding that there is
limited scientific evidence that supports either of the two numbers
currently in play for anthropogenic disturbance (3 percent and 5
percent) . . . Imposing an arbitrary cap on the landscape could have
catastrophic impacts on resource use.''
In addition, in our County we question the science behind the 4-
mile buffer from a lek (mating area of the Greater Sage Grouse). The 4-
mile radius from a lek in Garfield County will start in sage brush
habitat on the top of a ridge, go down a slope into an Aspen forest to
the valley floor, go back up through a conifer forest, to the top of
the next ridge and again start back down the next ridge. This shows the
fragmentation of the habitat and why a 4-mile buffer does not work in
our County.
Garfield County requests for data used by State and Federal
agencies concerning the Greater Sage Grouse EIS, have been denied or
not responded too. Through our biologist, Dr. Rob Ramey we have
requested population and population count data from the U.S. Fish &
Wildlife Service. We wish to verify this data as requested under the
Information Quality Act. We would appreciate this committee's
interceding on our behalf to obtain this data as soon as possible.
I support H.R. 4315 and H.R. 4317, greater transparency and sharing
of data will help local governments, affected by ESA decisions that
will have lasting socioeconomic impacts on our communities.
Thank you for your time and assistance in this matter. We
appreciate this opportunity and would be more than happy to answer any
questions this committee may have.
Attachment 1: Topography Differences
Attachment 2: Suitable Habitat Mapping Differences
Attachment 3: Coordination Diagram
Attachment 4: BLM Instructional Memorandum 2012-044
Attachment 5: Key Differences That Make the Garfield County Greater
Sage Grouse Plan a More Effective Conservation Tool Than Those Proposed
by Federal Agencies
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much, Commissioner Jankovsky,
and I want to thank the panel for your statement. I will now
recognize myself for 5 minutes for questioning.
The common thread in all of these four bills, particularly
two of them, is transparency so that people know why decisions
are being made. And, frankly, on a larger scale, unless you
have transparency in the form of government that we have, we
don't have a government of the people. I mean that is just
common sense, to me.
So, with that in mind--and I suppose that cuts both ways--
but, Mr. Bean, let me ask you a question, or for a comment.
When I introduced H.R. 4315 several weeks ago, the Center for
Biological Diversity characterized it as a weakening of the
Endangered Species Act. Now, I found that a bit puzzling. And
the reason I found that puzzling, because on December 19 the
Center for Biological Diversity, along with the Natural
Resources Defense Council and the Sierra Club sent a letter to
you when you were looking at removing the grizzly bear from the
list. And this is what they said in their letter, toward the
end of the letter: ``Yellowstone grizzly bear data have been
collected nearly exclusively under the authority of the Federal
Government and funded by taxpayers. Release of this data will
promote efficiency and effectiveness in government. Simply put,
release of this data is consistent with the principles of good
governance, transparency, and good science.'' Now, that is from
the Center of Biological Diversity, which was part of the mega-
settlement that was done behind closed doors that has affected
a lot of people, potentially, throughout the country.
Two questions. Have you responded to that letter, do you
know?
Mr. Bean. Not to my knowledge.
The Chairman. You have not responded to that. Yes, you have
not responded to that letter.
Mr. Bean. Not to my knowledge.
The Chairman. OK. If you have, would you provide to the
committee your response to that letter?
Mr. Bean. Yes, of course.
The Chairman. OK. And the last part--and I understand that
you did not say transparency was not a good idea, but you had
some conditions of that transparency. So, I just wonder if this
is, I guess, part of examples where transparency is good.
Mr. Bean. What I believe I said was that the Fish and
Wildlife Service is committed to transparency in its
decisionmaking, and its regular processes are ones that
disclose the data upon which it relies, as well as the Service
does make available the data that it has in its possession or
control.
I tried to make the point that often what the Fish and
Wildlife Service utilizes are published studies, reports,
analyses, and so forth, and those published reports, analyses,
and studies are often based on State data that the Fish and
Wildlife Service neither has nor has the right to give to
others.
But, to the extent the Service has that data in its own
possession, unless there is some compelling reason under FOIA
to withhold it--I would give us one example. Sometimes the Fish
and Wildlife Service gets from the Defense Department certain
high-resolution photographs about species locations, and the
Defense Department asks that that data not be released to the
public for security-related purposes. Unless there is a reason
like that, the Service, as a general matter and a routine
matter, makes available the data that it has.
The Chairman. But the principle of the data being made on
listings is good policy.
Mr. Bean. Yes.
The Chairman. Yes. OK. Dr. Ramey, would you--in your ending
oral remarks you kind of alluded to potentially this sort of
contingency, I guess, with some of the groups that are
involved. Would you care to comment on that?
Dr. Ramey. Information is power. Data is power. And if data
are withheld, then the group or the agency that hold that data
can maintain their power. And it has been my experience in
trying to obtain data from individuals, researchers that are
permitted by the Federal agencies--and it is not really very
much State data, Michael, it tends to be more independent
researchers--it can be like pulling teeth to try and obtain
that data. You write a polite letter, you get a refusal, the
questions come back, ``What are you going to do with this?''
``Well, I would like to actually look at your study.'' It
is not just me; other colleagues of mine have had the same
issue, over and over again. There are times that you can submit
a FOIA to obtain data. But, ultimately, some data sets have
been obtained under subpoena, like the Coastal California
gnatcatcher data. And then--it shouldn't come to that.
Here, we are facing a situation with a listing of greater
sage-grouse, where some of the data is maintained by States,
but that data set is now 7 years old. There have been numerous
papers published on this. The data set is shared among a good
old boys club of people, and yet the data is not public, and we
are about to spend billions, if not trillions, of dollars on
this listing.
The Chairman. All right. My time is expired, but I just
wanted to make the point it comes both ways. This letter that I
referenced was for de-listing. Should not the same principle
apply for listing? That is what the issue is.
With that, I will recognize the distinguished Ranking
Member, Mr. Grijalva.
Mr. Grijalva. Thank you very much, Mr. Chairman. Mr. Bean,
let me just get an answer and you can amplify that answer. Is
it true that the only way to get data from Fish and Wildlife
that you use in listing the decision is through a FOIA request?
Mr. Bean. No, I don't believe that is true. I think the
Fish and Wildlife Service commonly makes available data that it
has by publishing the reports and studies, or certainly a list
of reports and studies on which it relies with the proposed and
final listing decisions. That data is published on the
regulations.gov Web site for anybody to access who cares to see
it.
Mr. Grijalva. And I appreciate that, because that is the
question that we are going to hear over and over again today.
Dr. Courtney, do you think there is any sound scientific
basis for pre-determining that certain sources of data are
always going to be the best scientific and commercial data
available?
Dr. Courtney. Congressman, science is a process. And so it
is an ongoing process, and it is always a work in progress. And
there is no reason to assume that your science is better than
mine, just because you are sitting up there and I am down here.
The processes of science are self-correcting, and we figure
things out, and ultimately the truth is out.
Mr. Grijalva. Dr. Courtney, you noted that the peer review
you led regarding the Fish and Wildlife's proposal to de-list
the gray wolf unanimously found that the proposal was not based
on the best scientific and commercial information available,
and that is an indication of a situation where, as you
mentioned, it is an ongoing process, so corrective action is
warranted. In your opinion, is that corrective action in this
case of withdrawal of de-listing--is the withdrawal of that de-
listing decision----
Dr. Courtney. I have no opinion on what the Service should
do, Congressman. My task was very simple, which was to guide a
process to look at what the science said and a panel
unanimously found that the science in that case did not support
one part of the agency's proposed de-listing. We didn't
consider all aspects of the proposal. And, of course, the use
of science is a totally different thing from creating science.
Mr. Grijalva. Appreciate that. Commissioner Jankovsky, in
your testimony you say that with respect to the greater sage-
grouse EIS that was developed by the Bureau of Land Management,
that, ``From the start we questioned the accuracy of habitat
maps produced by the Colorado Department of Parks and
Wildlife,'' and that the maps produced by your county were much
different. Let me try to understand this. So are you saying
there was a conflict, fundamental conflict, between the data in
the maps that the State and county were providing the Bureau of
Land Management?
Mr. Jankovsky. I was saying that the maps provided by the
State of Colorado to the Bureau of Land Management that were
used in the greater sage-grouse EIS for northwest Colorado were
considerably different from our maps. Garfield County,
Colorado, is very unique in its habitat. It is fragmented----
Mr. Grijalva. OK.
Mr. Jankovsky [continuing]. And we found a 70 percent
reduction in the amount of habitat in Garfield County.
Dr. Ramey. Could I jump in?
Mr. Grijalva. So they were different.
Dr. Ramey. That mapping was done at a 2-meter resolution--
--
Mr. Grijalva. Excuse me, I have a question over here, thank
you. I really don't have any questions for you, so I want to
concentrate here.
What would happen, Commissioner, again, if Fish and
Wildlife were required to consider the county data and the
State data to be the best information available? How would--if
you have them in conflict?
Mr. Jankovsky. They are in conflict. And we did use 2-meter
resolution, where the State used a much broader--actually,
State Fish and Wildlife people stated that it was a 50,000-foot
view----
Mr. Grijalva. So----
Mr. Jankovsky [continuing]. They used on the mapping, where
we went down----
Mr. Grijalva. With regard to the legislation, then, the
county data, which you feel--you support, is, in your estimate,
the best available data, and not the State's.
Mr. Jankovsky. That is correct. And we feel----
Mr. Grijalva. So that would hold precedent in any decision.
Mr. Jankovsky. I don't know if it would hold precedent in
any decision----
Mr. Grijalva. That is fine.
Mr. Jankovsky [continuing]. But we feel that we have the
best available----
Mr. Grijalva. OK, thank you.
Mr. Jankovsky [continuing]. Data, and the best science----
Mr. Grijalva. Yield back.
The Chairman. I thank the gentleman. I will recognize the
gentleman from Colorado, Mr. Tipton.
Mr. Tipton. Thank you, Mr. Chairman. And, Mr. Ramey, I
would like to be able to hear your answer. If you can keep it
brief, we have a limited amount of time. We are talking about
best available science. What was the discrepancy between the
State of Colorado and the map produced by Garfield County?
Dr. Ramey. It is a question of the resolution of the data.
Much higher resolution in the vegetation mapping provided--done
by the county and their GIS group, as opposed to that being
proposed by the Federal agencies. The same situation has been
found in the Gunnison sage-grouse, as well, where large parts
of non-habitat, including the Town of Doat Creek and Gunnison
Gorge, were declared as critical habitat.
And so, if one has the chance to obtain the data and do a
superior analysis, it benefits species protection, because you
can put the----
Mr. Tipton. So it goes to the Commissioner's statement it
was a 50,000-foot view, you narrowed this down to actually look
at something that--you noted in your testimony you need a
certain amount of ground cover, you need a certain amount of
water to be available if you really want to be able to recover
the species. The broad brush stroke simply doesn't work. Is
that accurate?
Dr. Ramey. That is very accurate. There is a lot of
collateral damage, in terms of public support, when critical
habitats are over-extended.
Mr. Tipton. Great. Commissioner, let's talk about real
acres. I think in the West it is so expansive. You said a 70
percent reduction. How many acres did they want to include in
Garfield County, and what did you reduce it to with good
science?
Mr. Jankovsky. Garfield County has 220,000 acres of
priority habitat, and with good science that was reduced to
about 70,000 acres.
Mr. Tipton. About 70,000 acres, a huge reduction in that.
You know, Mr. Bean, I would like to be able to find out--
you talked about transparency, and wanting to be able to open
the door on that. And why are we not releasing the NTT Report?
Mr. Bean. The NTT Report was published a couple years ago.
It has been released.
Mr. Tipton. We don't have the information. Have you
received the information, Mr. Ramey?
Dr. Ramey. I think you are mistaken on that. I think that
what you might be referring to is the sage-grouse lek count
data that are the basis, the fundamental basis, of the 2010
listing decision on the greater sage-grouse. And that data was
analyzed under this Federal cooperative agreement from the Fish
and Wildlife Service, and yet 6 years later the data are still
not public.
Mr. Tipton. Why is that not public, Mr. Bean?
Mr. Bean. The data--well, first of all, the study is a
study by Dr. Garten and others that--the authors of the study
are employed by the Idaho Department of Fish and Game, the
Oregon Department of Fish and Wildlife, and the Washington
Department of Fish and Wildlife, and the University of Idaho.
The data they used to compile their report is State-maintained
data. That data has never been made available to the Fish and--
--
Mr. Tipton. Are you making decisions off that data?
Mr. Bean. We are not making decisions off of that----
Mr. Tipton. Are you using that data?
Mr. Bean. We will be using the report and other information
to make a decision----
Mr. Tipton. Don't you think that ought to be public, if we
are talking about transparency?
Mr. Bean. I think that if the States decide to release that
data, it would be a good thing.
Mr. Tipton. You are an advisor to Fish and Wildlife and the
Department of the Interior. Are you giving them advice, ``We
need to be able to have transparency so we can make good, sound
judgments''?
Mr. Bean. I have advocated in my testimony and elsewhere,
transparency. I have also made clear that we cannot withhold
what we do not have. And, in this instance, the information
involved is maintained and controlled by the States.
Mr. Tipton. Let's talk a little bit about population count.
Commissioner, have you been given a goal to be able to reach,
how many birds? And we have achieved a recovery?
Mr. Jankovsky. No, I think that is one of the difficulties
that Dr. Ramey was talking about, is that even in our small
area, there is no set population. It is an estimate, and we
actually have a biologist from CPW working there, but we don't
have a number that is specific to our area.
Mr. Tipton. Mr. Bean, how do we get recovery if we don't
know what the numbers are?
Mr. Bean. Numbers are a part of the equation. The main
focus is threats, identifying and addressing threats. The Fish
and Wildlife Service is required by Congress's law, the
Endangered Species Act, to consider five factors in deciding
whether or not a species is to be listed.
Mr. Tipton. You know, the Commissioner just gave us some
pretty big numbers, in terms of the population of the bird. How
do we know, when we have an 11-State recovery program, if we
have had success in Colorado--it is still going to be listed if
it is not achieved by some ambiguous number that you won't give
us in Wyoming--that we have achieved recovery? How do we
actually win, given what you are actually laying out, without
transparency?
Mr. Bean. Well, what the Fish and Wildlife Service is doing
at present is working closely with Colorado and the other 10
States that have----
Mr. Tipton. Our Governor pointed out that we have the best
science on the ground in the State of Colorado, and are
achieving recovery----
Mr. Bean. I am aware of the Governor's letter. With respect
to the matter that Mr. Jankovsky raised, the Bureau of Land
Management's EIS is a draft EIS. They have made no final
decision. They have made no final EIS. They are in the process
of incorporating data from the county and others in a revised
EIS. It is a testament to the strength of the process that the
information available to the Bureau can improve through the
input from the counties and others. And, as the Bureau makes a
decision on its land use plan, it will have the benefit of the
counties' input, and will have the ability to make a well-
informed decision.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from California, Mr. Huffman.
Mr. Huffman. Mr. Chair, thanks very much. I appreciate that
the stated concern, stated purpose of this hearing and this
legislation we are talking about today is over species recovery
and de-listing. On at least that much I think both parties can
agree. We want to see species recover, we want to see them de-
listed.
That is about where it ends, though, because the premise of
the bills we are considering and a lot of the debate is that
the problem is that we are not recovering more species because
we are somehow listing too many, or that we are somehow
spending too much time on lawsuits that seek listing. And I
find that a bit too far. We are not going to help the
Endangered Species Act with the conservation and de-listing of
species by making it harder to list them, or by making it
harder to enforce the Act.
But it does appear to me that there is something we can do
to help species recovery and de-listing, and that is to
actually invest in species recovery and de-listing. So I have a
question for our witnesses from NMFS and the Fish and Wildlife
Service. I would like to ask you how much you have requested
for your various efforts to recover species in the last fiscal
year, and then tell us how much was appropriated in response to
those requests.
Mr. Rauch. Thank you for the question. I don't have those
exact numbers. We will get them to you from the National Marine
Fisheries Service.
Mr. Huffman. All right. Is it fair to say that your
requests have not been matched in the appropriations, that
there is a shortfall?
Mr. Rauch. I do not know the specific numbers. I know that
since 2010 Congress has not appropriated the full amount we
have requested for at least Pacific salmon. There has been a
shortfall there, where the President has requested more than we
have received. In 2014 we received some of those numbers back,
so I don't know if that trend continues.
Mr. Huffman. All right. Mr. Bean, can I ask you? I know you
have requested millions in cooperative recovery and de-listing
efforts. Tell us about how the appropriations have matched
that.
Mr. Bean. I only know part of the answer to your question,
which is for the FY 2015 budget request the Service has
requested an $18 million increase for recovery-related
purposes.
Mr. Huffman. How many species are currently listed as
warranted but precluded because your agencies lack resources to
implement adequate protections? Do either of you know, off
the----
Mr. Rauch. I do not believe that NMFS has any listed as
warranted but precluded.
Mr. Bean. I don't know the precise number. My guess is it
is in the ballpark of 150 or so for the Fish and Wildlife
Service. That may give or take 20.
Mr. Huffman. My information is that you have 145 candidate
species, according to the Fish and Wildlife Service Web site,
51 species currently proposed for listing, according to your
Web site. Can either of you identify any currently protected or
listed species whose recovery you think would benefit from the
passage of any of these four bills?
Mr. Bean. I cannot. I think the concern that I expressed
was that these bills, although they are directed at the purpose
that we share of improving transparency and improving reliance
upon good science, I do not see how these bills will increase
the resources, or increase the effectiveness of the tools we
now have to recover species.
If I can say a word just about recovering species, so far
in this administration some 11 species have been recovered and
de-listed due to recovery, which is more than in any prior
administration. There are, indeed, nine others proposed for de-
listing because of recovery. So we are making good progress in
recovering and de-listing species, but there are a lot of
species that are still a long ways from recovery that are
clearly doing very well, compared to their historical numbers.
And among them, California condors, black-footed ferrets,
Florida manatees, and whooping cranes, all of which are at or
near their historic highs over the last half-century or more,
all of which will remain endangered species for many more
years, because they were reduced to very low numbers, but all
of which are clearly major successes for the Endangered Species
Act, even though they are still endangered species not yet
recovered.
Mr. Huffman. All right. Mr. Rauch?
Mr. Rauch. I concur with Mr. Bean's statements regarding
the effects of these bills on recovery. I do not see a direct
link between these bills and efforts to recover the species.
And I would also echo his comments about the success on
recovery that this administration has had. There are large
efforts that have been made, and I think we can all be proud of
those.
Mr. Huffman. All right, thank you.
The Chairman. The time of the gentleman has expired. I
recognize the gentleman from Texas, Mr. Flores.
Mr. Flores. Thank you, Mr. Chairman. Senator Seliger, let's
start with you for a minute. Can you cite any examples of how
better cooperation or better, actually, data communication
regarding ESA matters would have better facilitated the Federal
Government implementing ESA, and resulted in a better outcome
for Texas?
Mr. Seliger. I think I can, Congressman Flores, in that the
process we believe, should be data-driven.
Mr. Flores. Right.
Mr. Seliger. There clearly is an empirical measure of
species population to determine whether they are increasing or
declining. And then, where the science comes in is to analyze
the problems, the threats, and the possible solutions. And
then, very importantly, to measure the progress made to
consider de-listing.
And I find it interesting, reflecting on Congressman
Huffman's questions just last week, Director Ashe suggested a
$9 million decrease in grants to States to be used in the
scientific inquiry around endangered species. It is a big help
to States.
Mr. Flores. Thank you, Senator Seliger. Commissioner
Jankovsky, how has your interaction with the Bureau of Land
Management and Fish and Wildlife Service on the sage-grouse
impacted your county, and what have your county's own efforts
produced in the way of sage-grouse needs and management? I
think you drilled into that a little bit----
Mr. Jankovsky. OK. We are definitely at the local level. I
mean, you know, we are the ones that make local land use
decisions that affect the bird, at least in our county, and we
have coordinated with the Bureau of Land Management, and they
have come to meetings, and we have talked about issues, and we
have had direct, face-to-face discussions. We have sent letters
to--at least to Denver, to Fish and Wildlife Service, and those
letters have not even been responded to.
And we do have questions about the science, especially in
our county. And we look at it at the local level, and we have
control at the local level, and that is what is missing, in my
opinion.
Mr. Flores. OK, thank you. Dr. Ramey, Mr. Courtney has
suggested that data transparency could threaten conservation
planning, and he cited as an example the lesser prairie
chicken, which, despite extensive State, local, and private
efforts to keep it off the list, was listed by FWS 2 weeks ago.
A report by the Center for Environmental Science, Accuracy,
and Reliability concluded that the FWS listing rule for the
prairie chicken failed to consider data and analysis
demonstrated in the lesser prairie chicken populations were
increasing, and that genetic isolation has not occurred. So, in
this regard I have two questions.
First of all, do you agree with Mr. Courtney, that data
transparency could threaten conservation planning?
Dr. Ramey. Briefly, just a correction. That report, I
believe, refers to the greater sage-grouse and the genetic
diversity in that----
Mr. Flores. I am sorry----
Dr. Ramey [continuing]. Numbers.
Mr. Flores. That is right.
Dr. Ramey. Yes. In my direct experience, having worked on
endangered species in the field, including California condors
and peregrine falcons, peninsular bighorn sheep, Sierra bighorn
sheep, and on and on, openness and transparency and having the
data allows you to have a re-examination of the threats to the
species, and you can have a discussion and debate about those
and prioritize. If data are withheld, there is no opportunity
for that.
You can have all the studies you want, you can have all the
peer reviews you want. But unless the peer reviewers and the
public have access to the data, there is no way that this is
truly an effective scientific decision. And the statute
requires that these decisions be based on data, not opinions,
not speculation in papers. The Office of Management and Budget,
with the Data Quality Act, require that these be based on data.
Mr. Flores. Well, that brings us to my next question, and
that is, you know, this data discrepancy that is described in
this report, is that another example of how important State and
local data is for the Federal Government to use before the ESA
listing?
Dr. Ramey. Well, State and local data are essential to
having an effective recovery, because local data, local
knowledge, certainly like in Garfield County, is essential. You
can't have one-size-fits-all solutions to endangered species.
It has to be tailored to the problems, and you need to
prioritize your effort on addressing the threats.
Mr. Flores. Mr. Courtney, I have a question for you, but,
given my time, you will have to answer following this report.
Maybe you can do that in writing for us.
I have some conflicts among the answers that you gave.
First of all, in your testimony you said that you recommend
making use of existing technologies. But in your answers you
said sciences work in progress and science is self-correcting.
So I think there is a conflict between using things that are
existing, but still trying to always use the best-available
science. So if you would submit an answer following this
hearing, I would appreciate it.
Dr. Courtney. Of course.
Mr. Flores. Thank you.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from California, Mr. Costa.
Mr. Costa. Thank you very much, Mr. Chairman. To the
scientists that are here, and some of the other folks that are
dealing with these issues on an ongoing basis, I kind of have a
statement that I want to make, because I think the notion of
trying to create further transparency is meritorious, I think,
when we are dealing with the challenges facing the Endangered
Species Act. I think many of us who feel that there ought to be
changes or modifications to reflect the reality of the
challenges we face today in species recovery often times get
drowned out.
When we talk about best science available, we know that
the--to take a follow-up on the comment from the gentleman who
just spoke, Mr. Flores--the science is changing, so we learn
more. And so, the best science available is never a stationary
place. And I think that, you know, we can look to all the
experts, and we do--National Academy of Sciences and others--
who opine and write opinions on changing developments. But our
credibility is always lacking when we have difficulty in
species recovery.
And, of course, with changes in climate, we have a lot of
noted biologists, scientists, and others that say that it may
be literally an impossible feat to accomplish to recovery
species in which water temperatures are changing over a period
of time, and other factors. And we don't take that into
account.
So, I guess, in terms of our credibility, how do we define
success? How do we define success in species recovery? And
often times, I mean, you talk about the California condor, we
talk about salmonid recovery. I mean there is a whole host of
issues that I am familiar with on the West Coast. The fact is
that, often times, there are multiple factors that cause the
decline in these species.
And so, when we deal with--most of the time, from a
regulatory standpoint, we don't have the ability to deal with
multiple factors, and it is like trying to fly an airplane when
you have only one control, and that is over power, and you
don't have control over the airlines or other elements that
would factor in.
So, who wants to try to take this on, when we talk about
changes that are necessary in the law?
Dr. Ramey. I will be glad to jump in. And, as you know, the
delta smelt is a case where, because the data are public and
available, there have been, over the last 2 years, 3 years, six
papers, including a paper by scientists at NCEAS, to re-examine
all the data set and look at it in new ways, in trying to
figure out what are the current problems for the delta smelt.
Not the past problems, but the current problems. And one of
those they identified is the ammonia deposition caused by the
Sacramento waste water treatment plant, something that people
hadn't considered before. But because the data are public, it
is possible to have that kind of----
Mr. Costa. Are predator bass----
Dr. Ramey. And predator bass.
Mr. Costa [continuing]. That consume a lot of the smelt. So
how do we get there?
And then you have the gentleman from Davis, noted fish
biologist, who indicates that as water temperatures continue to
increase over the next four, five, six decades, that it may be
impossible to recover some of these species.
Dr. Ramey. In that one you are facing an ecosystem
collapse.
Mr. Costa. Yes.
Mr. Bean. Sir, if I can answer your----
Mr. Costa. Well, change. But, I mean, millions of years
before--we obviously are impacting all of it, that's given. But
the fact is that species have declined and become extinct as a
result of a meteor hitting in the Yucatan Peninsula. I mean
there are a lot of things that cause factors, right?
Mr. Bean. Mr. Costa, if I can address your earlier question
of how do we define success in this area, I think we can define
it in a number of ways. We start with avoiding extinction of
species we have identified as endangered. We have done a good
job of avoiding extinction.
Second, and perhaps most importantly, measuring our ability
to make a more secure future for these species. As I indicated,
many species, although still endangered, have a clearly more
secure future ahead of them because of----
Mr. Costa. But is it fair, when we have multiple factors
that are causing the decline of a species, to only use one?
Mr. Bean. We have to address all the factors, sir. You are
correct about that.
Mr. Costa. But we don't do that.
Mr. Bean. We try our best to do that.
Mr. Costa. I can cite many examples where we are not.
Mr. Bean. There are certainly many examples where it is
very difficult to do that, and we have more or less success
doing that. But in every instance we try to address every
threat that we can.
Mr. Costa. All right.
The Chairman. The time of the gentleman has expired.
Mr. Costa. All right. Thank you very much, Mr. Chairman.
Discussion to be continued.
The Chairman. It will, I know that. The Chair recognizes
the gentleman from California, Mr. LaMalfa.
Mr. LaMalfa. Thank you, Mr. Chairman. As the discussion
goes back and forth here today, we hear different ideas about
the legitimacy of these bills being helpful. I mean I think
what is important, how they are helpful isn't maybe necessarily
with however recovery of species works now, but with people's
ability to have transparency with it, to know what actually the
data is, and if it is being applied correctly, and if you have
a complete set of data.
So, I think, whether this is a dollar toward recovery, I
think it can actually be helpful in that, because you have a
broader range of data to work from, using local government,
using local people's input on it.
You know, I have a situation up in Siskiyou County that has
to do with water usage and water rights up in northern
California, where they were bringing some group from
Massachusetts in to help conduct the surveys and design a
model, and they didn't really seem too interested in hearing
from the locals, the farmers and ranchers, on that. Yet this is
what is being imposed on people.
Now, when you hear that there are ideas for listing 145 or,
by some other counts, maybe 374 new species--or considered for
threatened or endangered status, I wonder if--the ultimate goal
seems to tying up every single acre west of the Mississippi
from usage by humankind for--whether it is very needed timber
thinning and management, being able to access water supplies
that are desperately needed for California's drought, a
multitude of things that are being contemplated for people in
these--the wise use of resources. Every one of these listings
means much more time spent fighting with government agencies to
try and have access to the resources. Every listing.
Now, in California, for example, we have the longhorn
elderberry beetle--don't even get me started on the smelt--
which was listed some years ago and has been in a de-listing
process for about 8 years, and actually reached to the point
where they have had the data brought to them, the
recommendation by the Wildlife Service board that the de-
listing move forward. Yet, for 2 years, they have been sitting
on it. The answer I hear on that is they are not happy with one
of the peer review--one member of a peer review board has
issues with some of the way the data is collected.
Well, how are we supposed to--out here, whether it is the
general public or us in this representation position--be able
to have any kind of input whether the data, the collection
process, is even working when they are counting burros for
beetles? And yet we have very important flood control projects
in northern California and probably across all the West,
similarly, that are being held up because the agencies can't
get off the dime and respond to a possible de-listing.
So, with that, I had a comment or a question I am seeking
for you on that, Dr. Ramey. You have mentioned that lack of
available data is hurting the process. We also have in northern
California the Sierra Nevada yellow-legged frog habitat
designated, or a designation being contemplated. Yet the people
involved doing the economic analysis have never visited the
area, and are considering only the impact on Federal agencies,
and maybe a little bit on utilities. Please expound on how the
transparency would help our local governments to have a better
input than just somebody that hasn't even visited the site.
Dr. Ramey. I don't do economic analysis. But if I was to do
something like that, I would certainly want to know where the
species occurred, and then go from there to figure out, from
higher-resolution mapping, where the potential economic costs
would be.
Mr. LaMalfa. Who would best know what those economic costs
would be?
Dr. Ramey. Well, I would leave that to the economists to
figure out. But obviously, local people have some knowledge
there.
Mr. LaMalfa. Some or a lot?
Dr. Ramey. Well, I was being--that's an understatement
there. The problem there is that, whether it is scientific data
or economic data, local data is going to be very, very
valuable, and, in some cases, absolutely essential, especially
when a species is occupying a very, very small area.
And speaking about economic analyses involving critical
habitat, a number of those have been overturned, due to
inadequate economic analysis. The coastal California
gnatcatcher is one, for example. So, this is a relevant issue.
It does spill over into economics.
The Chairman. The time of----
Mr. LaMalfa. And I think on the biological side, as well,
at least seeking some input from local people on how things
work, you know, maybe not the final word, but might be helpful
to design a model.
So, thank you, Mr. Chairman. I yield back.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from New Jersey, Mr. Holt.
Dr. Holt. Thank you. Let me begin by pursuing that line of
questioning that we were just hearing. Let me address this, I
suppose, to Mr. Bean and Mr. Rauch each. In what sense, in what
circumstances, does best equal all?
The ESA says we should be using the best scientific and
commercial data available. Certainly linguistically best does
not equal all. In an evaluation situation, in actual practice,
does best equal all? If you were trying to make a decision
based on scientific evidence, do you want a data dump, or do
you want some discrimination in what is best and relevant?
Let me ask Mr. Bean first, and then Mr. Rauch.
Mr. Bean. Thank you, sir. I think that the Fish and
Wildlife Service, when it makes its listing decisions, goes
through a rulemaking process in which anybody who cares to
provide any data that they----
Dr. Holt. Could you speak into the microphone more, please?
Mr. Bean. Sure.
Dr. Holt. Thank you.
Mr. Bean. When the Fish and Wildlife Service proposes to
list a species, it goes through a rulemaking process in which
anybody who wants to comment and provide any data at all can do
so. The Service must take all that into account. However,
Congress has been clear that the decision to list or not list
is to be based solely on the best available scientific and
commercial data. And that does require the Service to make some
informed judgment of which of the data at its disposal is most
reliable, most scientifically defensible, most useful. So, yes,
best does not equal all.
Dr. Holt. Mr. Rauch?
Mr. Rauch. Thank you. I do agree that best does not equal
all. We do, as does Fish and Wildlife Service, accept all the
data, and we actively seek out data, including data from States
and others. Anybody who will give us data, we will accept it.
We have a 1994 policy between us and the Fish and Wildlife
Service which talks about how we weight those data differently.
Just because we accept it doesn't mean they are all of the same
caliber. We will weight things more highly, for instance, if
they are peer-reviewed, if they are public, they get much
greater weight in our analysis. So we look at those factors,
and that is spelled out in this 1994 policy in which we do
grade the data. And we try to determine what is the best, and
then rely on that.
Dr. Holt. Thank you. Senator Seliger, you said that no one
wants a species to be listed. I think those were your words----
Mr. Seliger. Nobody wants species to be extinct.
Dr. Holt. Well, in your prepared testimony I think you said
``listed.'' No?
Mr. Seliger. I am sorry, I don't recall.
Dr. Holt. I will take a look again. But species listed--
listing, of course, is the first step under the Endangered
Species Act. With regard to some of the demonstrable successes
of the Endangered Species Act--the iconic bald eagle or the
American alligator or the great whale--are you arguing that
listing in the ESA was not responsible for their revival, or
that the revival no one wanted?
Mr. Seliger. No, sir. I am certainly not, and I apologize,
because the intention was to say no one wants to see a species
extinct. Clearly, there can be situations--and there have
been--where populations are so threatened that a listing is
necessary, as long as it is based upon good science.
Dr. Holt. Well, actually, I do have this letter from April
4 on your stationery, ``No one wants a species to be listed.
The method of preservation of a species is at the center of the
debate.''
Well, I am running out of time, so I will just finish with
a statement, which is the ESA is an unusual law. It is one of
the strongest environmental laws. It is based on a zero
tolerance approach, which gives a lot of people heartburn. But
it is demonstrably successful. There are many species that I
think are vibrant populations now that would not be, but for
the ESA. And so that listing, I think, has been critical to the
prospering of the bald eagle, and the American alligator, the
gray whale, and others.
So, I would ask you to think carefully about your words
there, and consider the successes we have had. Thank you.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from Montana, Mr. Daines.
Mr. Daines. Thank you, Mr. Chairman. I want to thank you,
too, for your leadership on this important topic. The Chairman
had field hearings in both Montana and Wyoming this past fall.
I think it is always helpful to get out of the world of
academia in Washington, and out into the field, where reality
exists.
It was summed up out in Montana at the hearing, that the
ESA is like a 40-year-old ranch pick-up. It once served a
useful purpose, but is in bad need of repair. And I think we
sit here today, seeking to make this better, and to repair
something that is now 40 years old.
And I can tell you, as I travel around the State of
Montana, the threat of the listing of the greater sage-grouse
is a major threat to our local economies and our everyday
lives. Talking to the ranchers out there in eastern Montana,
sometimes it is just refreshing to get to their perspective, as
we hear all views on this around the impact of predators and
coyotes, of ravens, eagles, hawks, and so forth, as it relates
to--as well as habitat, and everything else. But you talk to
multi-generational families out there on the ranches, they can
tell you pretty quickly what causes sage-grouse populations to
go up, and what causes them to go down.
I understand that in Texas the information provided by
States, local governments, and other affected stakeholders
informed the Fish and Wildlife Service enough to reverse its
decision on the dune sage brush lizard as endangered. But,
however, last week it has been discussed in this hearing the
Fish and Wildlife Service listed the lesser prairie chicken,
despite the State efforts. And I can tell you Montanans are
very concerned that this decision that we saw happen in the
last couple weeks is an indication of the decision that awaits
us on the greater sage-grouse coming September, 2015. And I
surely hope the intent is not to dismiss the recommendation
from the respective 11 States that have prepared sage-grouse
conservation plans.
In fact, Montana and Wyoming have the largest populations
of sage-grouse, and are putting a lot of effort into conserving
habitat and bird population numbers which we still hunt today
in Montana. And as someone who strongly believes that this
country would be a whole lot better if DC looked more like
Montana and not the other way around, let me ask you, do you
have any recommendations--maybe I could direct this to Dr.
Ramey.
Any recommendations for the States of Wyoming and Montana
in working with the Fish and Wildlife Service to provide the
data that could have been missing in the lesser prairie chicken
case, but was provided by the State and local governments in
the lizards case? We are trying to maybe get an answer here
before we take the test here in September of 2015.
Dr. Ramey. The State of Wyoming makes all of its sage-
grouse data public, and that is a great start. I don't know
about Montana, but if it hadn't been for the fact that the
State of Wyoming had made their data public, a number of
analyses, including one we are to be publishing soon, wouldn't
have been possible. So making the data public is very
commendable, and it is a great way to lead.
Mr. Daines. Any other comments, what we could learn from
what happened just in the last month? Any of the panelists?
Ideas that we don't fall into the same trap that happened?
Mr. Bean. Sir, if I may, I would just respond to your
concern that the decision on the lesser prairie chicken is
somehow a foretelling of the future decision on the greater
sage-grouse, I would caution not to make that connection,
because the circumstances are quite different. The lesser
prairie chicken suffered a fairly dramatic population collapse.
Its numbers are a small fraction of sage-grouse numbers.
Perhaps most importantly, the 11 States with sage-grouse
have been working for the last 4 years cooperatively with the
Fish and Wildlife Service, with BLM, with Natural Resources
Conservation Service, to put together programs and plans to
address the threats to that species. They are making real
progress in that. So I think that will be decided on its
merits, independent of the decision for the lesser prairie
chicken.
Mr. Daines. I sure hope so, because I think you have some
important stakeholders there in Montana that--we desire, I
think, the same outcome here, of protecting the species. But
I--we really do believe that the folks back home oftentimes are
closer to the issues than the folks who are thousands of miles
away, here in Washington.
Is there something--moving back to Dr. Ramey, is there
something Congress can do? You mentioned the transparency with
Wyoming data. Anything else that States and local governments
could do--to have a stronger voice in this process? Would H.R.
4317 help in that regard?
Dr. Ramey. Well, let me say I do concur with Rauch and Bean
here, that best does not equal all. However, I am going to add
to that, that you only get to best available by considering all
the data. And I think that that is the frustration that local
governments, tribes, and States have, is that their data are
frequently not considered in a decision. And it is extremely
frustrating.
And just to use the example of the Agua Caliente v.
Scarlett case on critical habitat and peninsular bighorn sheep,
that particular case resulted because the tribes and others had
better data, and they had to go to court in order to force the
decision on a critical habitat, which resulted in about a 50
percent reduction. But that allowed the conservation effort to
be more focused on what is most important for the animals and
aid their recovery. And they are almost recovered.
Mr. Daines. Thank you.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from Michigan, Dr. Benishek.
Dr. Benishek. Thank you, Mr. Chairman. I would like to
thank you for holding this hearing today, and I would also like
to take this opportunity to enter additional testimony from
both the American Loggers Council and Senator Tom Casperson,
who represents the 38th District of Michigan into the record.
These folks couldn't be here in person with us today, but
they strongly support these bills that work to reform the
Endangered Species Act. I appreciate their support and work to
conserve species that are important to Michigan.
[The information submitted by Dr. Benishek for the record
follows:]
Prepared Statement of the American Loggers Council by Daniel J.
Dructor, Executive Vice President on H.R. 4315, H.R. 4316, H.R. 4317,
and H.R. 4318
The American Loggers Council (ALC) appreciates the opportunity to
submit written comments in support of four recently introduced bills
that would make significant changes in the administration of the
Endangered Species Act. These four bills, H.R. 4315; H.R. 4316; H.R.
4317 and H.R. 4318, all suggest improved procedures and accountability
for decisions to list species as threatened or endangered under the
act. We would like to thank Representatives Hastings, Lummis,
Neugebauer and Huizenga, respectively, for introducing these bills.
ALC is a coalition of some 30 State logging associations from
throughout the country. Our members collectively represent over 10,000
family owned businesses that employ over 50,000 workers. Our members
are largely located in rural communities and support an industry that
typically is the mainstay of the local economy. Each and every one of
our members can tell a convincing story about how the Endangered
Species Act has affected their operations and personal lives whether
they be on Federal, State, private or tribal lands and they understand
the need for the reforms embodied in these proposals. Transparency in
decisionmaking; public access to data, research and assumptions
regarding listing decisions; and modernizing the process for legal
challenges of the act's administration are all reforms that we strongly
support.
Often, the data, research and assumptions that lead to a decision
to list a species is a mystery to the public. In our experience, the
U.S. Fish and Wildlife Service relies heavily on internal research and
scientific expertise and to academia for information about candidate
species. It is our opinion that scientists who are invited to provide
input to the agency and provide the scientific basis for making a
listing decision is often an exclusive club of hand-picked individuals.
In the current process, it is not unusual for outside information and
research to be ignored because it does not support preconceived
positions of the agency or it may originate from sources the agency
believes has an economic interest in the decision. There is plenty of
evidence that the agency excludes valid and credible information in its
quest for ``the best scientific information available.'' There is no
better example than the northern spotted owl. Listed in 1990, credible
evidence was provided to the U.S. Fish and Wildlife Service that
questioned the dependency of the owl on old growth habitat. Information
was also provided that suggested the barred owl was a significant
factor contributing to the decline of spotted owl numbers. Both of
these assertions were ignored by the agency as its selected group of
scientists (a cartel is an appropriate description) who did not want to
believe these suggestions to be credible. Twenty-four years later, the
agency is now advocating for the management of second growth forests
for habitat recruitment and has determined that more habitat exists
today than when the owl was listed as a threatened species. Also, the
agency recently completed an environmental impact statement that
authorized the killing of barred owls to reduce competition with its
close cousin, the northern spotted owl. You can imagine the chagrin of
the tens of thousands of forest industry workers who lost their jobs as
a result of the listing of the northern spotted owl.
Another example of the need for transparency is in the agency's
reliance on computer models for predicting a species reaction to
management alternatives. Population data is often lacking and when it
is available it is often discounted in deference to the attitude that
``the amount and quality of habitat is more important than the
population of the species.'' So, the agency will use a computer model
to predict the amount of a species' habitat that will be available over
time and under different management options. The problem with this
approach is that the prediction the model makes is entirely dependent
on the quality of the data and assumptions that go into it. These
inputs into the model should be fully disclosed and explained to the
public. Also, the certainty associated with these inputs should be
disclosed. Are they best guesses? Do they represent a consensus of the
scientific community? Do they consider alternative views, opinions or
research? Or is it all hardwired to predict a preconceived outcome?
These are questions the public deserves an answer to.
Finally, H.R. 4318 would impose a $125 per hour limit on attorney's
fees for suits filed under the Endangered Species Act. This limit is
currently included in the Equal Access to Justice Act and we support
including it in ESA litigation, as well. There is no question that
certain special interest groups have exploited ESA litigation as a
means to finance their existence and sustain their litigious
activities. Just this year, the State of Oregon settled a lawsuit
brought by an environmental organization involving the marbled
murrelet. The suit alleged that the management of State forest lands in
Oregon was resulting in the ``take'' of marbled murrelets. The marbled
murrelet is a seabird that spends 90 percent of its life in the ocean
to feed. It spends 10 percent of its life inland nesting in coastal
forests. The suit was based entirely on habitat modification and a dead
or injured murrelet was never produced. The State agreed to reduce
timber harvest levels on the subject forest lands by over 80 percent to
settle the case even though the land in question is required by the
State's constitution to generate financial resources for public
education. But to avoid going to court, the State agreed to a huge
reduction in timber harvest levels and paid the environmental
organization's attorney $391,000 of taxpayer's money to settle the
suit. The attorney never stepped foot into the court room. This is but
one example of the kind environmental extortion that currently occurs
under the existing litigation process.
In summary, the American Loggers Council urges the committee to
pass these bills and send them to the Floor of the House of
Representatives for consideration.
We appreciate the opportunity to provide these comments.
______
Prepared Statement of Tom Casperson, a U.S. Senator from the State of
Michigan
Legislation before the Natural Resources Committee to amend the
Endangered Species Act (ESA), H.R. 4315-H.R. 4318, offers much needed
reforms that should be approved by the committee as it will help
address concerns I hear about routinely from my constituents and
residents of Michigan.
As the State Senator for most of Michigan's Upper Peninsula (UP),
my district covers an area that is bigger in size than nine other
States, yet has a mere 270,000 people. Given the make-up of my district
and the land-based economic activities that most residents depend upon
to make a living and support our communities, which are historically
based and culturally centered, we have been significantly and adversely
impacted by various environmental laws and regulations including the
ESA. It is common to hear from constituents who strongly believe that
changes are needed to environmental laws and regulations, with the ESA
being one of the laws most in need of changing.
That is why I appreciate the work of the ESA Working Group and the
introduction of legislation to reform the ESA including H.R. 4318 by
Congressman Bill Huizenga of my home State. The purpose of H.R. 4318 is
to help make ESA decisions less susceptible to litigation which would
be a significant and valuable victory for taxpayers and those who
repeatedly see the ESA used to stifle reasonable use, conservation, and
enjoyment of the natural resources.
As we have seen in Michigan, environmental groups and so-called
animal welfare groups are repeatedly using litigation to impact
decisions made under the ESA. And, in some cases their attorneys are
being awarded huge sums of money ranging from $300-$500 per hour with
taxpayers covering that cost when they prevail in ESA cases.
It is frustrating enough for residents of Michigan to have to
continue to endure the impacts of those decisions on their lives, but
it adds insult to injury to have attorneys profiting with their hard-
earned dollars when the tax money could instead go to something much
more important such as transportation or education needs. To address
this, H.R. 4318 is a common sense measure to place the same $125 per
hour cap on ESA cases that applies to other government litigation
cases.
A few examples in Michigan will help to portray why reform is
needed to the ESA. Most recently, the wolf population has been a hot
topic in the UP and across Michigan as most UP residents call for more
management and control to curb the negative impacts that a growing wolf
population has had on residents, pets, livestock, wildlife and
visitors.
Wolves were recently delisted from the endangered species list in
January 2012, but the delisting was long overdue. When wolves were
listed as an endangered species more than three decades ago, a recovery
goal of 200 animals was set which was the target number at which time
the animals would be delisted. However, delisting didn't happen for
years after that goal was attained with at least part of the delay
brought on by certain animal welfare groups challenging the process and
bringing litigation.
During that time, the wolf population in Michigan expanded to
approximately 700 wolves, well above the recovery goal of 200 in
Michigan alone. Our neighboring States of Wisconsin and Minnesota have
approximately 800 and 2,200 wolves respectively. This has led to many
negative impacts on UP residents where the wolves are concentrated in
Michigan. Farmers are losing livestock to wolves, family pets and
hunting dogs have been killed, other wildlife are being impacted, and
wolves are even entering communities such as the city of Ironwood where
eight had to be killed within the city itself to address residents'
fears that they were becoming too habituated to humans. A wolf was also
hit by a car in Escanaba in December.
Delisting has allowed us to move forward as a State to enact some
management tools, but had we been able to address the situation
earlier, UP residents would not be enduring the impacts they see from
the wolf population today.
In addition, most economic activity in the UP is dependent on land-
based economic sectors including forestry and mining. The ESA has
unreasonably and negatively affected those sectors with environmental
groups and bureaucrats successfully using the laws and regulations to
slow down sustainable use of the land.
For example, there are three Federal forests in Michigan, with two
of them being in the UP. Each Federal forest has a forest service
management plan in which an ``allowable sales quantity (ASQ)'' is
established. This is essentially a timber harvest plan. Since 1986 when
the first plans were written, the U.S. Forest Service has never sold
the ASQ of timber in the forest plans for the Ottawa and Hiawatha
National Forests in the UP. Specifically, over the last several years,
less than half of the timber required to maintain forest health was
harvested with the amount ranging from 38 to 45 percent of ASQ.
Many believe, myself included, the lack of management on forestland
is directly attributable to environmental laws, including the ESA,
which has been used to stall or prohibit management efforts.
This has left our forests in poor health, which is in part
responsible for the natural disasters that have befallen them, and it
also equates to loss of jobs and economic activity in rural areas that
depend on the land-based industries to survive. For example, in 2010,
the Ottawa and Hiawatha National Forests cumulatively fell short of
annual ASQ by more than 115 million board feet. This equates to a loss
of 1,265 jobs using a calculation based on 1 million board feet of
harvested timber providing enough raw materials to sustain 11 direct
jobs and multiple other indirect jobs.
In addition, the ESA was recently cited by the Environmental
Protection Agency (EPA) in its many objections to the development of
County Road 595 in Marquette County. The road would have addressed
public safety concerns and aided in economic development opportunities
related to forestry and mining. However, after much local and State
support and hundreds of hours of negotiation by the Marquette Road
Commission to try to address concerns, the road project was not
advanced due to concerns from Federal agencies including the EPA, U.S.
Army Corps of Engineers and the U.S. Fish and Wildlife Service.
For example, in a 44-page EPA document titled ``Responsiveness
Summary EPA Objection to the Issuance of a Clean Water Act Section 404
permit to construct County Road 595'' from December 2, 2012, the
following statement was made: ``The project could cause impacts to
Kirtland's warbler (Setophaga kirtlandii) and Canada lynx (Lynx
candaensis) which are protected under the Endangered Species Act and
which have the potential to be present within the proposed CR 595
corridor.''
The document also points to concerns about impacts on wetlands and
references various threatened and endangered species that could be
located in those areas which would have been impacted. It is
significant to note, however, that the applicant was willing to
mitigate any impacts on wetlands to a much higher degree than any
impact they would have caused--and at one point offered to mitigate 22
acres of wetlands with an astounding offer of 1,600 acres of wetlands.
In short, it was a tremendous loss for the UP when the Federal
agencies used various environmental regulations and hoops to reject the
united local and State efforts to build County Road 595.
While the ESA has served a purpose, it has been abused and used as
a tool by those who do not want to see human activity on natural
resources. There must be more balance between environmental regulations
to protect truly sensitive areas while allowing sensible activity as
well, including economic development and recreational uses.
Today's law does not provide that balance to ensure property rights
and use are maintained and promoted where appropriate, and that is why
the committee should vote to approve H.R. 4315-H.R. 4318 to help
provide residents of Michigan and its sister States some relief from
those who take advantage of originally well-intended laws that now are
in need of reform to allow States to respond appropriately to local
needs, provide transparency and allow better use of tax-payer dollars.
______
Dr. Benishek. I represent the northern half of the State of
Michigan, and have seen firsthand how the ESA impacts my
district. For example, when a county wanted to build a road,
the ESA said the project could cause impact to Kirtland's
Warbler and Canada Lynx, which are protected under the
Endangered Species Act, and which have the potential to be
present with the proposed county road corridor. Despite offers
by the county to include thousands of acres of offsets for the
potentially impacted area, the road was unable to be built. The
regulators could not be satisfied.
Commissioner Jankovsky and Dr. Ramey, do you think that the
ESA adequately takes into account State and local actions for
conservation that may already be under way?
Dr. Ramey. I think one of the issues here is that the State
and local governments, and tribes, may produce conservation
plans and invest heavily, as Huffman had mentioned, in
conservation efforts, but not find out whether they receive any
credit for that until the time of a listing decision, for
example. And that, I think, is a strong disincentive for
conservation efforts for State and local governments to invest
in those.
And it would be best if, under the PECE policy, the Policy
on Effectiveness of Conservation Efforts, if the services
worked more cooperatively with these State, tribal, and local
governments, and gave them some assurances in advance that
their efforts are not going to be, essentially, in vain.
Dr. Benishek. Mr. Jankovsky?
Mr. Jankovsky. Yes, and I would just add to that. I think
at the local level, and especially with local land owners, we
almost feel as though we are not being heard. And we look at
these issues and how important they are to our economies, and
also the conservation of the species, and it is--we are not
being heard, and that is our concern.
Dr. Benishek. A couple more questions for you two. If you
listen to those folks that have been opposed to 4315, the
status quo is apparently working just fine when it comes to
scientific transparency. To them, the legislation is not
necessary to publish the data on the Internet.
Can you, from your perspective, tell us why we need this
legislation?
Mr. Jankovsky. First of all, I don't think the transparency
is there. I don't think you can get to the data. I think that
local governments are now--especially after the spotted owl--
are looking at what the impacts are. The impacts are immense to
our economies and to our citizens and to how we operate--and to
the ability to be able to continue into the future as
productive economies. So that is the concern.
That is why, if you can have this data transparent, so we
can be at the table, and we can look at it, and we can dissect
it, and we can respond back and have a dialog, it is going to
make a big difference for the local governments.
Dr. Benishek. Any further comment, Dr. Ramey? I just point
this out because, you know, here we had, in my district a
potential for huge economic development with the construction
of a road that every single elected official in the State was
in favor of, which the Michigan Department of DNR was going to
oversee the wetlands, and that.
But when the answer that you get from the Environmental
Protection Agency is that there is a species that has the
potential to be present as a reason for stopping an effort for
a local economic activity, it is a very bad answer for the
hundreds and maybe thousands of people that don't have a job.
There are no data to support the fact that these endangered
species, animals, were even there. It is just that they had the
potential to be there. It is very difficult for people in the
local community to trust the bureaucrats in Washington when
they give an answer like that that affects hundreds of people.
Well, I am out of time, but thank you so much.
Mrs. Lummis [presiding]. I thank the gentleman. The Chair
recognizes herself for 5 minutes.
Mr. Bean, Fish and Wildlife Service recently requested
nearly 40 new employees for ecological services as part of the
sage-grouse initiative. How many of those employees will be on
the ground, implementing conservation plans like Wyoming's
plan, which is, by the way, Fish and Wildlife Service-approved?
I would be delighted to have that information. What I
understand is most of them will be desk jobs here in
Washington, but I would love to see a breakdown of that.
Mr. Seliger--is it Selinger?
Mr. Seliger. It is Seliger.
Mrs. Lummis. Seliger.
Mr. Seliger. Yes, ma'am.
Mrs. Lummis. OK. Mr. Seliger and Mr. Jankovsky--now, did I
get that right? Thanks. Could you each think of specific
examples where better cooperation with the Federal Government
on data would result in better outcomes, both for species and
for the State and local governments that you represent that are
trying to recover species before they are listed?
Mr. Jankovsky. Well, we are definitely the individuals on
the ground and we work with the private land owners. We
actually have a good rapport with the State governments and, to
some extent, for the Federal employees that are working at a
local level.
And so, we really can see what the impacts are. And through
voluntary basis, and also by working with the Federal
Government, we can make things happen at the local level. And
if we don't have the cooperation from Washington, DC, if we are
not being heard, then land owners and local governments are
just going to--we are not going to work with the Federal
Government, because there is just an impasse.
Mrs. Lummis. Mr. Seliger?
Mr. Seliger. Yes, ma'am. The local--I say local--State, in
this case, scientists and biologists are as much an asset to
Fish and Wildlife Service as they are to the individual States,
I believe.
It was interesting recently that the lesser prairie
chicken's threat level, if you will, or its priority status was
eight, which is relatively low, and then was moved to two. And
I am not aware of the sort of definitive evidence that was
presented for a serious move like that, but it appeared to be
motivated somewhat more by settlement deadlines with litigants
than based upon any change or information, scientific
information, generated that most likely would have been
generated in those State Fish and Wildlife Services.
Mrs. Lummis. Thank you. Mr. Bean, the Fish and Wildlife
Service has a peer review process, correct?
Mr. Bean. Yes, that is correct.
Mrs. Lummis. Dr. Ramey, can the Service guarantee
scientific integrity while scientists are denied the underlying
data and methodologies?
Dr. Ramey. I think one can go and look at the Office of
Management and Budget discussions concerning the Information
Quality Act, and that provides for a rebuttable presumption
that peer review is adequate, and that it requires that there
be reproducibility in data and methods and analysis by an
informed member of the public.
So, there are plenty of examples across the field of
science where peer review has been inadequate. It is a useful
tool. It is an imperfect tool.
Mrs. Lummis. Following up, Dr. Ramey, should the Fish and
Wildlife Service and the National Marine Fisheries Service be
basing listings and other important decisions on studies and
opinions that cannot be accessed or verified?
Dr. Ramey. That is a great question for the people of this
country. It is clearly in violation of the Information Quality
Act, that if you can't obtain the underlying data, there is no
reproducibility. You can't ask any questions. Again, you can
have all the peer reviews you want, but unless you have the
access to that, it is different.
And peer reviews are sometimes incredibly conflicted. On
the hookless cactus, one of the peer reviewers was actually on
the board of directors of the NGO that litigated to list the
species. Another one was one of the original authors of the
taxonomy of the species. I mean that is not an independent
review.
So these things have an opportunity to go--I know that Dr.
Courtney has worked to try and prevent that, but it is--the
problem is that science is a human process. It has its faults,
as well. But it----
Mrs. Lummis. We are----
Dr. Ramey [continuing]. Fundamentally goes back to the
data.
Mrs. Lummis. We are indeed fallible people. I thank the
panel. And my time has expired. I yield to the gentleman from
Arizona, Mr. Gosar.
Dr. Gosar. Thank you, Chairman--Chairwoman. Mr. Bean and
Mr. Rauch, you just talked a minute ago about a lot of your
data coming from the Department of Defense, and that that data
is restrictive on their direction.
So, my question is, as any NGO, environmental, or
conservation group who has initiated sue-and-settle been privy
to that information that would otherwise not be disclosed to
anybody else?
Mr. Bean. Not to my knowledge, sir, no.
Dr. Gosar. Mr. Rauch?
Mr. Rauch. No, not to my knowledge.
Dr. Gosar. Mr. Ramey, are you familiar with anything?
Dr. Ramey. No, I am not.
Dr. Gosar. Would you go back and--I would like all the
members of this panel to come back and answer that, post-
operatively. I am a dentist, so if I speak in medical terms--I
would like to have a conversation in regards to that, because I
actually think there is.
So, Mr. Bean, last month Fish and Wildlife Service
designated over 700,000 acres of land in southern Arizona as
critical habitat--now you are going to see where this question
came about--in regards to the rarely present jaguar. I think
DoD has a big overlap with that aspect.
Game and Fish Assistant Director for Wildlife Management,
Jim deVos, stated at the time, ``I find it difficult to justify
designating critical habitat for a species that is so rarely
found in Arizona. And looking at the available data on the
presence of jaguars, there has been no documentation of a
female jaguar in Arizona for nearly a century.'' You would
agree?
Mr. Bean. I don't have any independent knowledge, sir, I am
sorry.
Dr. Gosar. OK. Such designations should be based on good
science and effective conservations, which are both lacking
with this designation. This designation does nothing to further
the conservation act on the jaguar. What best available
scientific and commercial data was used to justify this
listing?
Mr. Bean. I don't know the details, I am going to have to
supply that to you post-operatively, as you say.
Dr. Gosar. OK, I would expect that. Mr. Bean, last night
the Fish and Wildlife Service announced that they were
reopening the comment period going to designating a critical
habitat for the New Mexico meadow jumping mouse, commonly known
as Rip Van Winkle, the sleeping mouse. This proposed rule seeks
to stifle economic development, harm grazing on over 15,000
acres in New Mexico, Colorado, and my home State of Arizona.
Wild Earth Guardians report that this rodent typically
hibernates for 10 months out of the year. Environmental groups
have been pushing for this designation since 2007.
Is your agency pushing for the designation of critical
habitat for the sleeping mouse, based on actual science, or to
appease extremist groups that are threatening lawsuits?
Mr. Bean. Let me answer that this way, sir. I don't know
the facts of this particular instance. But I can assure you
that in no instance is the Fish and Wildlife Service proposing
critical habitat to appease the interests of extremist groups.
I can assure you of that.
Dr. Gosar. So we would like to have a review on sue-and-
settle. So we would like, once again, going back to the sue-
and-settle aspect, and privy documentation.
Dr. Ramey, can you provide examples of where data sharing
has been beneficial for species conservation, and examples of
where it is needed?
Dr. Ramey. Certainly the delta smelt case is probably the
first and foremost in my mind, because we just published on
that about a year ago. Identifying the threats is extremely
important to allocating conservation efforts.
On the boreal toad, we were able to obtain data on the
genetics and the distinctiveness of the various groups, and we
found large amounts of missing data in the data sets, and the
lines were basically arbitrarily drawn around those groups. And
so, that independent re-evaluation allows for a refocusing of
research needs and conservation effort.
In terms of the California condor, peregrine falcons, there
had been previously thought to be human disturbance of nest
sites as being a problem. However, when the data were in, that
was not the issue; DDT and predation were. And so, having open
access to data allowed for that kind of re-analysis.
Like I said, the greater sage-grouse is an example where it
is sorely needed. I mean we don't have the basis of the data
that was cited 64 times in the 2010 listing decision. On the
Gunnison sage-grouse, there is no measurement data, there is no
color data. The supposed historic range is entirely based upon
speculation, no data. So, those are two very relevant recent
cases where that is needed.
Dr. Gosar. So, Mr. Bean, is there a case that we have made
mistakes in regards to restrictive habitat? I can think of one
that I kind of want to hedge my bet on this, and that would be
the spotted owl, Mexican spotted owl.
Mr. Bean. I am sorry, sir, I didn't hear your question.
Dr. Gosar. Have we made any mistakes in regards to habitat
restrictions in regards to endangered species?
Mr. Bean. The Fish and Wildlife Service has, on occasion,
de-listed species that it originally listed on the basis of
error, taxonomic error or other informational defects. There
are relatively few of those, but, yes, there have been some of
those.
Dr. Gosar. Mexican spotted owl would actually be one of
those, wouldn't it be, because we have an overgrowth of timber,
and Mexican spotted owls really don't like that, do they?
Mr. Bean. I am sorry, sir, I don't have the facts----
Dr. Gosar. I think it proliferates the common barn owl. And
what we have done in Arizona and a lot across the West is we
have actually allowed these forests to be over-occupied. And we
in Arizona have become victims of these catastrophic fires
because of this.
I hope that you would really reconsider yourself, and look
at some of this critical habitat in a conscientious way, and
utilize State and local maps. Thank you.
Mrs. Lummis. The gentleman's time is expired. The Ranking
Member has one follow-up question, after which we will excuse
this panel.
Mr. Grijalva. Yes, Dr. Courtney, in the testimony today--
follow up on something that was said. If peer reviews in and of
themselves are imperfect tools, what would be the alternative,
number one?
And, number two, in the many peer reviews that you
conducted, there is publicity attached and there is full
transparency? And that is the question.
Dr. Courtney. Well, thank you, first, for giving me the
last word.
[Laughter.]
Dr. Courtney. Peer review is--it is the best tool we have.
Like democracy, right? It is the best tool we have. If it is
carried out transparently, if the process is carefully
designed, if all records are kept, then it gives you a clear
record of how evaluations are made, and that then becomes
useful for a decisionmaker. Is it always going to give us the
best result? No, I think it should be an ongoing process.
And to answer Mr. Flores' question from a little bit
earlier, the tools that we have, like peer review and like some
of the processes that are in place within the two agencies,
they are good tools. Whether they are used as openly and as
commonly as we might like, that probably can be improved, and--
--
Mr. Grijalva. OK.
Dr. Courtney [continuing]. I am very much in favor of
things being done in public.
Mr. Grijalva. Thank you very much, Madam Chair. And in
closing, I just want to--for the record--that we did have a
jaguar in Arizona, Macho B. Unfortunately, that jaguar met its
demise at the hands of Arizona Fish and Wildlife in a capture.
With that, I yield back.
Dr. Gosar. Madam Chairwoman? To correct the record, it was
a male jaguar, not a female.
Mrs. Lummis. I thank the gentlemen. We have had one of our
members return. The gentleman from Florida, Mr. Southerland, is
recognized for 5 minutes.
Mr. Southerland. Thank you, Madam Chair. My questions will
be brief. I am curious, as I am looking through this data, Mr.
Rauch, I want to ask you a question.
I am looking at the FWS 2011 90-day finding that the Center
for Biological Diversity has petitioned to list the 374 aquatic
species in several Southeastern and Gulf States. The listing
may be warranted, is their finding.
I am just curious. I am on the Fisheries Subcommittee. I
know that the red snapper is clearly an irritating fish to you
guys. I am just curious. How can we do 90-day findings for 374,
and yet we can't get good findings for one fish in the South
Atlantic for over 3,000 days?
Mr. Rauch. Thank you for the question.
Mr. Southerland. I am sure you appreciate that question.
Mr. Rauch. I do appreciate the question.
[Laughter.]
Mr. Rauch. We have had many discussions, I think, in this
very chair on this topic. I can't speak to Fish and Wildlife
Service's petition. I do know that it is sometimes difficult
for us to make 90-day findings on very large numbers of species
when we have similar 90-day findings. The standard for a 90-day
finding is much lower than the standard for an ultimate
listing. That is based on substantial information from the
petitioner that indicate it may be warranted, which is a
particularly low standard. We then would engage in the kinds
of--the status review process, which is more akin to the stock
assessment process that you are familiar with with the red
snapper. That would only occur after that 90-day finding is
met. So there is a much lengthier process after the 90-day
finding is met.
I will say that, in terms of the South Atlantic red
snapper, as I think I----
Mr. Southerland. How lengthy? I am just curious. How
lengthy should that process be?
Mr. Rauch. Under the Endangered Species Act? We have up
to--by statute, we have up to a year.
Mr. Southerland. OK.
Mr. Rauch. To finalize that process. That includes the 90
days.
Mr. Southerland. So, therefore--and I know we are jumping
tracks, but this is the same, the same Department, OK, same
agency. So, when you mention those--you know, the timeframe
there, the expectation that the people that live in the South
Atlantic, the Gulf of Mexico, regarding one fishery, one, and
then it has taken over 3,000 days certainly seems to be an
inconsistency of thought for the Department.
Mr. Rauch. So I will say that we have scheduled that stock
assessment.
Mr. Southerland. Well, that is wonderful.
Mr. Rauch. For the end of this year, yes. At the end of
2014 we are--we are concerned, as well, that that stock
assessment has lagged behind for the South Atlantic red
snapper.
Mr. Southerland. OK. So that is really just my--I mean I am
just amazed, as I heard--as I read the data for today, to know
that the inconsistency by the Department on this particular
fish that--Magnuson clearly, clearly outlines the economic
value of the fish--is a determinant factor. It must be,
according to law. That is not interpretation; it is clear that
that fish must be--must have the surveys in a timely manner. I
just find that inconsistency to be glaring, and so I am
thrilled to hear you state that that is scheduled for the next
year.
So, really, that is just--that is my only point. And, Madam
Chair, I yield back.
Mrs. Lummis. I thank the gentleman, and I very much want to
thank this panel of witnesses for their valuable testimony.
Members of the committee may have additional questions for
you, and we would ask that you respond to these in writing. The
hearing record will be open for 10 business days to receive
these responses. And, again, with our tremendous gratitude, we
excuse this panel, and will now hear from our second panel of
witnesses.
We are pleased to be joined by Ms. Karen Budd-Falen, of
Cheyenne, Wyoming; Mr. Robert Percival, of Baltimore, Maryland;
Mr. Michael Bean, and Mr. Sam Rauch, who were with us on our
last panel, will continue and join us on our second panel, as
will Mr. Kent Holsinger, from Denver, Colorado.
To the gentlemen who so patiently sat through the first
panel and now have the pleasure of doing so again, if you wish
to get up and stretch your legs during the testimony of the
three new witnesses we have, feel free to do so, and then come
back and join us, as we may have additional questions for you.
You will not be asked for prepared testimony for this panel,
since we had the pleasure of hearing from you during the first
panel.
So, now, I would like to thank and welcome our current
panelists. And the Chair recognizes herself to introduce the
first witness on this panel.
Ms. Budd-Falen is from my home State of Wyoming. She has
been a tireless researcher on the subject of agency funds that
have been used for payments to attorneys who sue the Federal
Government and either receive payment for their legal fees and
costs in settlements, or in the court, and how this has
affected the budgets of Federal agencies.
Most of the information she has assembled has been
anecdotal, as we don't have, currently, a formal system of
reporting those dollars that are paid out of agency budgets for
attorney's fees, which is the subject of one of the bills
before us today. I deeply want to thank Ms. Budd-Falen for her
work in bringing this issue to our attention. And I welcome her
to present for 5 minutes.
As Chairman Hastings would say, if he was here, the green
light indicates you are good to go. The yellow light asks you
either to talk faster, or summarize more quickly. The red light
truly is the conclusion of your spoken testimony. And we do
have the advantage of your written testimony, so don't feel
that, just because you didn't get to say it all, that it has
not been called to our attention.
Again, gratefully, for the second panel the Chair
recognizes Ms. Budd-Falen for 5 minutes.
STATEMENT OF KAREN BUDD-FALEN, OWNER/PARTNER, BUDD-FALEN LAW
OFFICES, CHEYENNE, WYOMING
Ms. Budd-Falen. Thank you, Congressman Lummis and members
of the committee. My name is Karen Budd-Falen, and I am a
rancher and attorney in Wyoming. I represent many ranchers,
land owners, and local governments who feel the direct impacts
of the Endangered Species Act and critical habitat
designations.
There has long been a concern that litigation, rather than
science, is overtaking decisions under the ESA. Although there
has been a great deal of discussion and consternation, large
settlement agreements are happening right now, dealing with
multiple species. But that has actually always been the case.
It was very interesting.
In preparing for this testimony, I located a settlement
agreement that was agreed to in the Clinton administration,
where the Clinton administration agreed with Defenders of
Wildlife and Fund for Animals that it needed to review the
candidate list for 443 species in a period of 5 years. Under
that settlement agreement you had species that the
environmental groups that sued believed were languishing on the
candidate list, and that needed review. So they created a time
deadline to deal with that.
At the end of the 5-year time deadline, the Clinton
administration determined that it simply could not comply. Now,
certainly at the end of that timeline you had some issues with
appropriations, but there were 4 years in which the Clinton
administration could comply, and it simply could not. The Fish
and Wildlife Service then issued a listing final priority
guidance, and I think the language of that guidance, was
important as it was to President Clinton as it is today.
The guidance strongly stated that good science, rather than
litigation, should drive the listing of species under the
Endangered Species Act. The decision also said that to continue
to deal with these species would result in increasing backlogs
as species are currently being petitioned. So, you have the
mega-settlements of today, in which the Fish and Wildlife
Service has agreed to take 1,053 actions over the course of 5
years.
The settlement agreements did not stop the Center for
Biological Diversity from filing additional petitions. And, as
you heard the gentleman speak of earlier, Center for Biological
Diversity has filed a petition for hundreds of mussels and fish
and other species in the South Atlantic, as well as species in
every other State. So, it begs the question: How is the Fish
and Wildlife Service going to continue to deal with this? And
the reality is they don't have the money to do it.
Now, although the Fish and Wildlife Service and the
National Marine Fisheries Service can continue to blame
Congress for its problems, in my opinion sue-and-settle
actually does make a difference. And what I would cite to this
committee is the run sheets the Department of Justice recently
released. Those run sheets listed what the Department of
Justice believed was its litigation for approximately 3 years
and 3 months. Only dealing with Endangered Species Act, only
relating to the wildlife section in the Energy and Resources
Department.
Now, the run sheets didn't total the attorney's fees paid,
so I did. We just simply did the math with a large calculator.
We figured out that, in those 3 years and 3 months, 573 cases
had been filed; 489 of those were filed by environmental
groups. Only 19 of those cases were filed by what you would
call industry groups or water districts; 65 cases were filed by
individuals, so we couldn't tell their affiliation. And in that
time period, $52,518,628.93 had been expended in attorney's
fees.
I think that that does speak to the issue regarding
litigation and attorney's fees. I think that the Justice
Department numbers are wrong, because GAO report after GAO
report has reported that they do not have a good method of
tracking. I think that we need to look at the priorities.
Although the Center for Biological Diversity will tell you that
I am simply willing to kill every endangered species on the
planet, that is absolutely not true. But we have to look at
priorities, and we have to look at our citizens as we are doing
it. That is who you represent.
With that, I would stand for any questions. Thank you.
[The prepared statement of Ms. Budd-Falen follows:]
Prepared Statement of Karen Budd-Falen, Owner/Partner, Budd-Falen Law
Offices LLC, Cheyenne, Wyoming on H.R. 4316 and H.R. 4318
My name is Karen Budd-Falen. I grew up as a fifth generation
rancher and have an ownership interest in a family owned ranch west of
Big Piney, Wyoming. I am also an attorney specializing in environmental
litigation (including the Endangered Species Act). I represent the
citizens, local businesses, and rural counties and communities who may
not necessarily be the defendants in litigation under the Endangered
Species Act (``ESA'') but who absolutely feel the consequences that are
the results of endless ESA litigation. My clients, friends and family
have to live with the results of the species' listings and critical
habitat determinations; my clients, friends and family also pay the
litigation fees to feed the litigation machine.
If I had to select one word to describe the bills before you today,
it would be honesty. As it currently stands, there are only two ways
for the general public to get information related to why a species was
listed or critical habitat was designated under the ESA, or whether
attorney's fees were paid related to ESA litigation. With regard to the
basis for listing or critical habitat determinations, the only
publically available source of information is through filing a Freedom
of Information Act (``FOIA'') with the U.S. Fish and Wildlife Service
(``FWS'') or the National Marine Fisheries Service (``NMFS'') asking
for the data. While a listing or critical habitat rulemaking published
in the Federal Register may describe ``why'' the FWS or NMFS believed
that listing or critical habitat designation was appropriate or
prudent, the agencies do not have to publish sources of the ``best
scientific and commercial data'' used to make their decisions. Unless
Federal court litigation is filed and an administrative record is
produced, the ``best scientific and commercial data'' is only available
through FOIA, at a cost of $24, $42; and $61 per hour for search and
managerial review time, $.15 per page for black and white copies and
$.90 per page for color copies. Maps and odd size reproductions cost
more. See 43 C.F.R. Part 2, Subpart G.
Public information regarding payment of attorneys' fees for ESA
litigation is equally difficult to access. Although it is possible to
publically search Federal court databases through PACER [Public Access
to Court Electronic Records], those searches are based upon individual
Federal courts and only by party name. The public then has to research
the docket sheet for each case to determine if attorney's fees were
paid and why. There is a service charge that has to be paid to be able
to search PACER and downloading any document bears an additional cost.
This is very difficult and expensive for taxpayers who are footing the
bill for the attorneys' fees payments.
In reviewing these four bills and moving away from the hype that
even the subject of the ESA seems to provoke, there is nothing evil or
right-wing about this legislation. These bills change nothing of
substance to the requirement that Congress commanded the Federal
agencies to ``provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved'' and
``to provide a program for the conservation of such endangered species
and threatened species.'' 16 U.S.C. Sec. 1532(b).
The proposed legislation can be described as follows:
H.R. 4315 requires that the information and data used to list
species as threatened or endangered and make critical habitat decisions
be put on the Internet. It does NOT require the FWS or the NMFS to
gather more, different or additional data; it does not change the
existing requirement that the ``best available scientific and
commercial data'' be used; it does not add to the citizen suit
provisions or create a new cause of action to sue to change the listing
process; it does not include any new deadlines. Under this bill,
deference will still be owed to the Federal agency regarding what to
consider as the best scientific and commercial data available. See
Hawksbill Sea Turtle v. Fed. Emergency Mgmt. Agency, 11 F.Supp.2d 529,
549 (D.Vi. 1998). The bill also does not require that only ``peer''
reviewed or published information be considered nor does it require
that the FWS or NMFS conduct new studies or await the completion of new
studies and analysis. See California Native Plant Soc'y v. Norton, 2004
WL 1118537 (S.D. Cal. Feb. 10, 2004). This bill merely requires that
the FWS and NMFS take the ``best scientific and commercial data
available'' supporting their decision scan it onto the Internet. If
litigation is filed related to the listing or critical habitat
decision, this data has to be produced for the administrative record
anyway. H.R. 4315 does nothing to change that. This bill is not a
radical change to the ESA.
H.R. 4316 similarly only adds a requirement for reporting of data
that should already be available. This bill requires a report on
attorney's fees and costs for ESA-related litigation. Again, this bill
does not change the citizen suit provision of the ESA to add or
subtract the amount or type of litigation that can be filed; this bill
does not take away any of the Department of Justice's authority or
ability to settle litigation at any point, this bill does not bypass
the ``existing legal safeguards'' ensuring that the Federal Government
follows its procedural and legal mandates, including ensuring that
deadlines are met. See Testimony of Robert V. Percival, Before the
House Committee on Oversight and Government Reform, Hearing on
``Mandate Madness: When Sue and Settle Just Isn't Enough,'' June 28,
2012. In his testimony, Professor Percival opines that the citizen suit
and Administrative Procedures Act (``APA'') waivers of sovereign
immunity to allow litigation against the Federal agencies are
``desirable and favored by public policy,'' and that ``existing legal
safeguards preclude collusive litigation.'' H.R. 4316 does nothing to
dispute or change any of those arguments. The bill simply requires
reporting of existing litigation and attorney's fees payments to the
public. It should not be a radical notion for the public to know how
much is being paid by the Federal Government and to whom the check is
written.
H.R. 4317 is equally benign. This bill states that the FWS and NMFS
must cooperate and consult with State agencies with regard to the data
that the Federal Government considers, and that ESA listing
decisionmakers consider data submitted by State and local governments
and Indian tribes. State and local governments and Indian tribes have
significant interest and expertise in protecting plant and animal
species and habitats, particularly given that they have local
conservation district managers, State game management agencies, and
tribal government resources to use for this task. It seems exceedingly
arrogant for the Federal Government to not want to coordinate with
these local experts. Other Federal statutes, such as the National
Environmental Policy Act, require coordination and consultation with
State and local governments and Indian Tribes; the ESA should be no
different and Federal biologists should take advantage of this
important local knowledge.
As with H.R. 4315, H.R. 4317 does not define ``best scientific and
commercial data available'' nor does it require the FWS of NMFS to wait
until the State or local government or Indian tribe develops
independent data. The terms ``cooperate'' and ``consult'' do not give
State and local governments or Indian tribes any type of ``veto power''
over the Federal agencies nor do these terms regulate the requirements
of the ESA to a subservient position with regard to State, local and
tribal interests. The Federal cases that define ``cooperate'' cite to
the dictionary definition of the term from the Webster's New
International Dictionary which defines the term as ``to work
together.'' See Long Term Capital Holdings v. United States, 330
F.Supp.2d 122, 168 (D. Conn. 2004) aff'd sub nom. Long-Term Capital
Holdings, LP v. United States, 150 F.App'x 40 (2d Cir. 2005).
The Federal courts define ``consult'' by stating:
Merriam-Webster's Collegiate Dictionary defines
``consultation'' as ``the act of consulting or conferring,''
and it defines ``consult'' as ``to deliberate together,'' among
other things. See Merriam-Webster's Collegiate Dictionary 268
(11th ed. 2005). The American Heritage Dictionary of the
English Language similarly defines ``consultation'' as ``[t]he
act or procedure of consulting'' and defines ``consult'' as
``[t]o seek advice or information of'' or ``[t]o have regard
for; consider.'' The American Heritage Dictionary of the
English Language 286 (1978).
Makua v. Gates, 2008 WL 976919 (D. Haw. Apr. 9, 2008) order
clarified, 2009 WL 196206 (D. Haw. Jan. 23, 2009).
Consulting and cooperating with State governments, local
governments and Indian tribes does not change the mandates or substance
of the ESA, but it ensures that all data and information is available
to the FWS and NMFS so that they can make the best decision they can.
Finally, H.R. 4318 caps the hourly fee that attorneys can charge
for ESA litigation filed pursuant to the ESA citizens suit provision at
the same rate as the hourly fee allowed under the Equal Access to
Justice Act (``EAJA''). 28 U.S.C. Sec. 2412(D)(2)(a)(ii). Although the
citizens suit provision waives sovereign immunity for ESA litigation
related to alleged violations of ESA section 4 (cases related to
species listing, critical habitat designation, development of recovery
plans and special rules), litigation filed against the Federal
Government related to other ESA provisions are not subject to the
citizens suit provision. For example, a substantial amount of
litigation related to the ESA stems from charges that the Federal
Government is violating the section 7 consultation requirements of the
ESA. 16 U.S.C. 1536(a)(2). Sovereign immunity for those suits is waived
pursuant to the Administrative Procedures Act (``APA''); attorney's
fees for cases brought pursuant to the APA are paid under the EAJA.
EAJA statutorily sets the attorney's fees cap at $125 per hour. If the
purpose of litigation enforcing the ESA is truly species protection
driven, is seems very inequitable for attorneys litigating ESA section
4 cases to receive ``unlimited'' hourly fees, although those attorneys
litigating the equally important ESA section 7 consultation provisions
only receive $125 per hour. This bill would not stop litigation, change
any of the causes of action possible under either the ESA citizens suit
provision or the APA enforcing the provisions of ESA section 7; it just
treats all ESA plaintiffs' counsel equally.
The concern that litigation, rather than biology or science, would
overtake the ESA is nothing new. In fact, settlement agreements like
the multi-district settlement agreements in 2011 are not new. In Re:
Endangered Species Act Section 4 Deadline Limitation, Misc. Action No.
10-377 (EGS), MDL Docket No. 2165. Just over 10 years ago, the Clinton
administration's U.S. Fish and Wildlife Service issued its Final
Listing Priority Guidance because, even at that time, pending and
threatened litigation was ``diverting considerable resources away from
the Service's efforts to conserve endangered species.'' See Notice of
Listing Priority Guidance, 61 FR 24722-02, 24724 (May 16, 1996). That
notice was published because the Service wanted to publically announce
that it would not ``elevate the priority of proposed listings simply
because they are the subjects of active litigation. To do so would let
litigants, rather than expert biological judgment, control the setting
of listing priorities.'' Id. at 24728.
The publication of that guidance was based upon a 1992 Clinton
negotiated settlement agreement with Plaintiffs Fund for Animals and
Defenders of Wildlife that required the FWS to resolve the conservation
status of 443 candidate species by publication of a proposed listing or
a notice stating why listing was not warranted.\1\ Fund for Animals et
al v. Babbitt, 92-cv-800 (D.D.C. April 2, 1992). The complaint was
never answered by the Justice Department. Rather a settlement agreement
was negotiated, and attorney's fees of $67,500 were paid. In 1996, the
Fund for Animals revived the same litigation to seek a court ordered
compliance with the original settlement agreement because the FWS could
not keep up with the ambitious decisionmaking schedule. Fund for
Animals et al v. Babbitt, 92-cv-800 (Motion filed by Plaintiffs
enforcing the settlement agreement, docket 19 (August 19, 1996)).
Again, no answer was filed by the Justice Department, but a new
schedule for the remaining decisions was negotiated and another $24,500
was paid in attorney's fees. It was then that the U.S. Fish and
Wildlife Service issued its Final Listing Priority Guidance to ensure
that the work of agency's biologists would not be driven by litigation.
See 61 FR 24722-02, 24728 (stating that ``The Service will not elevate
the priority of proposed listings for species simply because they are
subjects of active litigation. To do so would let litigants, rather
than expert biological judgments, control the setting of listing
priorities. The Regional Office with responsibility for processing such
packages will need to determine the relative priority of such cases
based upon this guidance and the 1983 listing priority guidance and
furnish supporting documentation that can be submitted to the relevant
Court to indicate where such species fall in the overall priority
scheme.'')
---------------------------------------------------------------------------
\1\ This is exactly the same requirement as the current Center for
Biological Diversity and WildEarth Guardians multi-species settlement
agreements, although the current multi-species settlement includes 1053
ESA actions.
---------------------------------------------------------------------------
The events leading up to the 1996 Listing Priority Guidance Federal
Register notice are eerily similar to the 2011 multi-species Obama
settlement agreement with the Center for Biological Diversity and
WildEarth Guardians. The litigation in both cases was filed by
environmental groups who were not satisfied with the pace of decisions
issued by the FWS or NMFS. Rather than answering the litigation, the
Justice Department entered into settlement agreements committing the
Federal agencies to strict time deadlines for making decisions that
either list species or determine that listing is not warranted.
Decisions to place the species on the ``warranted but precluded'' or on
the candidate list are not allowed under either the 1992 or 2011
settlement agreements. Between the settlement agreement in 1992 and the
motion to force compliance with the settlement agreement in 1996, the
FWS determined, on its own, that it could not comply with the
settlement time schedule and its regular workload. 61 FR 24726 (noting
that if the Service were to devote its budget to compliance with the
settlement agreement, it would be devoting no resources to the final
listing decisions of the 243 species that were proposed for listing at
the time. ``This course of action would also result in a still larger
backlog of proposed species awaiting final decision.'').
Still other FWS notices decry the concern over the immense amount
of ESA litigation. For example, in the proposed rules listing the
Spalding's Catchfly (plant) as threatened, the Service stated that
because of ``litigation demands'' even though the petition to list was
presented on November 16, 1998, action was not taken until December 3,
1999. 64 FR 67814-02 (December 3, 1999). The plant was not finally
listed as threatened until October 10, 2001. 66 FR 51598-01 (October
10, 2001) (again citing litigation demands as one of the reasons for
the delay). Even as recently as 2010, the Service noted that ``resource
demands associated with litigation'' delayed the finalization of the
draft recovery plan for the bull trout. 75 FR 2270-01 (January 14,
2010). Any claim that the current pace of litigation does not impact
implementation of the ESA is simply not borne out by the FWS' own
documents.
Recently, there have also been claims that ESA litigation costs are
``not a concern under the Endangered Species Act.'' See Center for
Biological Diversity (``CBD'') March 29, 2014. In support of its claim,
the CBD cites two studies that it simply did not read. First the
August, 2011 Governmental Accountability Office (``GAO'') study
entitled ``Environmental Litigation Cases Against EPA [Environmental
Protection Agency] and Associated Costs over Time'' shows a dramatic
increase in litigation against the EPA from 2009 to 2010. Because the
EPA does not administer the ESA, it is not a surprise that ESA
litigation against the agency is limited. The two ESA cases reported
against the EPA dealt with claims that the EPA had failed to comply
with the section 7 consultation requirements of the ESA. One
environmental group, Northwest Environmental Defense Center, was paid
$40,000 in 2010; the CBD was paid $405,000 for its section 7
consultation case against the EPA in 2007. Because these cases involved
ESA section 7 claims, the attorney's fees were paid based upon the
Equal Access to Justice Act. Additionally, the 2011 GAO report
complained, ``Justice [Department] maintains separate, decentralized
databases containing environmental case litigation and does not have a
standard approach for collecting and entering data. Without a standard
approach, it is difficult to identify and summarize the full set of
environmental litigation cases and costs managed by the department
agency wide.''
The second GAO study cited by the CBD, ``USDA Litigation, Limited
Data Available of USDA Attorney Fee Claims and Payments,'' March 26,
2014 also does not support the CBD's claims. That study noted that
there is no central internal or external tacking of attorney fee
payments within the Department of Agriculture (``USDA''). With regard
to ESA litigation, again because the Department of Agriculture does not
implement the listing and critical habitat provisions of the ESA,
litigation relates to alleged violations of the ESA section 7
consultation provisions. Of the 33 USDA agencies, 29 do not track
attorney's fees payments at all, even though some of those agencies
have been sued for alleged violation of ESA section 7 consultation
requirements. See, e.g., Buffalo River Watershed Alliance et al v.
United States Department of Agriculture et al, 13-cv-450 (E.D. Ark,
August 6, 2013) (claiming that a loan decision backed by the USDA's
Farm Services Agency \2\ and the Small Business Administration violated
the section 7 consultation provisions of the ESA). Clearly this report
cannot be said to support the proposition that ESA litigation is ``not
a concern.''
---------------------------------------------------------------------------
\2\ The Farm Services Agency is one of the USDA agencies that does
not track attorney's fees payments.
---------------------------------------------------------------------------
The CBD press release, dated March 26, 2014, fares no better. This
press release was based on a 276 page spread sheet run released by the
Department of Justice (``DOJ'') listing litigation summaries in cases
defended by the Environment and Natural Resources Division, Wildlife
Section of DOJ. The spread sheets are titled ``Endangered Species
Defensive Cases Active at some point during FY09-FY12 (through April 4,
2012)''. Although the DOJ release itself contained no analysis, my
legal staff calculated the following statistics:
------------------------------------------------------------------------
------------------------------------------------------------------------
Total Number of Cases Filed....................... 573
Total Number of Cases in which Attorney's Fees 183
were Paid........................................
Total Cases Filed by Environmental Group.......... 489
Total Cases Filed by Industry Group, Local 19
Government or Water District.....................
Number of filed by Individuals Who Did Not Seem to 65
be Tied to any Group.............................
Total Attorney's Fees Paid........................ $52,518,628.93
------------------------------------------------------------------------
And while the payment of $52,518,628.93 of American taxpayer's
money over an approximate 3-year period seems high, use of the FOIA has
shown that the DOJ does not keep an accurate account of the cases it
defends. For example, in 2009, my firm sent a FOIA request to the DOJ
asking for the amount of litigation defended and attorney's fees paid
to a named environmental group based upon litigation against the
Federal Government filed in the Federal District Court for the District
of Idaho. The Justice Department responded with what it believed were
all cases that met the criteria, a total of 67 cases in all. Reviewing
those cases, according to the Justice Department's list, this
environmental group received approximately $900,000 in attorney's fees
in 9 years. However, when the list provided by the Justice Department
was compared with the actual PACER documents from the Federal District
Court of Idaho, it was discovered that the Department failed to account
for an additional 23 cases filed by this single group in the District
Court in Idaho. We also discovered that this single group had received
$1,150,528 in tax payer dollars over the applicable period. This is
just one illustration that shows that the DOJ run sheets attached to
the 2014 CBD press release do not account for all the litigation filed
or the attorney's fees paid.
I would thank this committee for holding this hearing and for
starting the discussion related to the ESA. The FWS Web site, as of
April 5, 2014, shows that 1337 species have been listed, but only 30
recovered. While the advocates can argue about whether the Act is
working, these bills at least make the decisions more apparent and
transparent to the American public and the bill-paying taxpayers.
Thank you.
______
Mrs. Lummis. I thank the witness, and wish to recognize Mr.
Robert Percival for 5 minutes. Thank you for being here.
STATEMENT OF ROBERT V. PERCIVAL, ROBERT F. STANTON PROFESSOR OF
LAW, DIRECTOR, ENVIRONMENTAL LAW PROGRAM, UNIVERSITY OF
MARYLAND FRANCIS KING CAREY SCHOOL OF LAW, BALTIMORE, MARYLAND
Mr. Percival. Thank you, Madam Chair. I have a bit of a
cold, but I am the Director of the Environmental Law Program at
the University of Maryland School of Law.
The Endangered Species Act is the product of a remarkable
bipartisan consensus concerning the moral imperative of
preserving biodiversity. I remind the committee that it was
approved by Congress overwhelmingly by a 92-to-0 vote in the
Senate, and with only 12 dissenting votes in the House. The ESA
has been recognized as one of the most profound moral
accomplishments of the human race, because it recognizes that
we have an ethical obligation to preserve all of God's
creation.
The U.S. Supreme Court, in its first decision, interpreted
the Act--called it the most comprehensive legislation for the
preservation of endangered species ever enacted by any nation,
and it emphasized the importance of citizen involvement
provided by the Act with respect to petitioning to list
species, and also the citizen suit provisions of the Act.
One chronic problem with implementation of the Act, though,
is that the agencies have not been given sufficient
appropriations to carry out all their statutory duties, and
that is a large reason why they have been subjected to so many
lawsuits.
I do want to make one correction to Ms. Budd-Falen's
testimony. She refers in it to a 1992 Clinton administration-
negotiated settlement with the Fund for Animals and Defenders
of Wildlife that required the Fish and Wildlife Service to
resolve the conservation status of 443 candidate species, and
she cites the case as having the settlement agreement approved
on April 2, 1992. I would remind her that President Clinton was
not elected President until November 1992, and did not take
office until January 1993. That indeed was the settlement
negotiated by the Bush administration, which I think makes my
point that this has been a chronic problem with respect to
implementation of the Act under both Republican and Democratic
administrations.
Now, the legislative proposals we have before us today
would only exacerbate this problem by imposing new, unfunded
mandates on the agencies. Until Congress provides adequate
funding to enable the agencies to discharge in a timely fashion
their responsibilities for listing endangered species,
consulting with other Federal agencies concerning their
conservation, obligations for listing species, and for
promoting species recovery acts, the current pattern of
litigation is likely to continue.
Three of the four bills under consideration at this hearing
would create new statutory responsibilities for the agencies
implementing the ESA without increasing the already inadequate
funds made available to them. The fourth would change the
standard for awarding attorney's fees under the Act. The
ability of citizen groups and businesses to go to court to hold
agencies accountable has been one of the most important
features of our legal system that makes it the envy of the
world. It has been absolutely critical to ensuring that our
Federal environmental laws are implemented and enforced in a
manner consistent with statutory directives, as the Supreme
Court noted in its landmark TVA v. Hill decision.
The citizen suit provision currently in Section 11(g) of
the Endangered Species Act mirrors those provisions contained
in virtually all the other major Federal environmental laws.
There is no warrant for singling out the Endangered Species Act
and cutting back on the possibility of attorney's fees, just
because some don't like litigation, which occurs in both
Republican and Democratic administrations.
The ESA is a landmark piece of legislation that was the
product of an overwhelming bipartisan consensus concerning the
importance of preserving biodiversity. Congress authorized
citizen suits to hold agencies accountable for violations of
the Act. Measures to oppose additional unfunded mandates on
agencies implementing the ESA will only make it more difficult
for them to carry out their statutory responsibilities. There
is certainly no justification for singling out the ESA's
attorney's fee-shifting provision that currently mirrors those
contained in virtually every other major Federal environmental
law. Thank you.
[The prepared statement of Mr. Percival follows:]
Prepared Statement of Robert V. Percival, Robert F. Stanton Professor
of Law, Director, Environmental Law Program, University of Maryland
Francis King Carey School of Law, Baltimore, Maryland on H.R. 4316 and
H.R. 4318
My name is Robert V. Percival. I am the Robert F. Stanton Professor
of Law and the Director of the Environmental Law Program at the
University of Maryland Francis King Carey School of Law. Thank you for
inviting me to testify today. For more than two decades I have been the
principal author of the most widely used environmental law casebook in
U.S. law schools, Environmental Regulation: Law, Science & Policy
(Wolters Kluwer Law & Business, 7th ed. 2013). I have taught
Environmental Law for more than a quarter century and I also teach
Constitutional Law, Administrative Law and Global Environmental Law.
i. the endangered species act reflects our highest moral aspirations
The Endangered Species Act (ESA) is the product of a remarkable,
bipartisan consensus concerning the moral imperative of preserving
biodiversity. In his Special Message to Congress on February 8, 1972,
President Richard Nixon called on Congress to enact ``legislation to
provide for early identification and protection of endangered
species,'' to ``make the taking of endangered species a Federal offence
for the first time,'' and to ``permit protective measures to be
undertaken before a species is so depleted that regeneration is
difficult or impossible.'' \1\ Congress responded by enacting the ESA
by an overwhelming, bipartisan majority. The legislation passed the
Senate by a vote of 92-0 on July 24, 1973. On September 18, 1973, the
House approved its own version of the bill by a vote of 390-12. The
final legislation that emerged from a joint conference committee was
agreed to by the Senate unanimously on December 19, 1973 and by the
House by a vote of 355-4 on December 20, 1973. President Nixon signed
the ESA into law on December 28, 1973.
---------------------------------------------------------------------------
\1\ Richard M. Nixon, Special Message to Congress Outlining the
1972 Environmental Program, Feb. 8, 1972 (http://
www.presidency.ucsb.edu/ws/index.php?pid=3731).
---------------------------------------------------------------------------
The ESA is a profoundly ``pro-life'' piece of legislation. It
creates a presumption that humans should avoid activity that would harm
endangered species and that Federal agencies should avoid actions
likely to jeopardize species continued existence. The ESA has been
recognized as one of the most profound moral accomplishments of the
human race because it recognizes that we have an ethical obligation to
preserve all of God's creation.\2\
---------------------------------------------------------------------------
\2\ Roderick F. Nash, The Rights of Nature: A History of
Environmental Ethics (Univ. Wisc. Press 1989). See also Evangelical
Environmental Network, On the Care of Creation: An Evangelical
Declaration on the Care of Creation (1994) (http://
www.earthcareonline.org/evangelical_declaration.pdf).
---------------------------------------------------------------------------
In its first major decision interpreting the ESA, the U.S. Supreme
Court declared the Act to be ``the most comprehensive legislation for
the preservation of endangered species ever enacted by any nation.''
\3\ It explained that ``Congress has spoken in the plainest of words,
making it abundantly clear that the balance has been struck in favor of
affording endangered species the highest of priorities.'' \4\ As an
illustration of ``the seriousness with which Congress viewed this
issue,'' the Court specifically cited the ESA's ``provisions allowing
interested persons to petition the Secretary to list a species as
endangered or threatened and bring civil suits in United States
district courts to force compliance with any provision of the Act.''
\5\
---------------------------------------------------------------------------
\3\ Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).
\4\ Id. at 194 (1978).
\5\ Id. at 181.
---------------------------------------------------------------------------
Despite strong public support for the ESA,\6\ it often has been a
target for political attacks because the costs of species protection
measures are more visible and immediate than the more diffuse, long-
term benefits of preserving biodiversity. Yet the bipartisan majority
that enacted this landmark legislation rejected the notion that species
should be sacrificed to political expediency. As the Supreme Court
explained in TVA v. Hill ``Congress was concerned about the unknown
uses that endangered species might have and about the unforeseeable
place such creatures may have in the chain of life on this planet.''
\7\ Thus ``the plain intent of Congress in enacting'' the legislation
``was to halt and reverse the trend toward species extinction, whatever
the cost.'' \8\
---------------------------------------------------------------------------
\6\ During the spotted owl controversy in 1992, voters supported
the ESA by a margin of 66 to 11 percent. When asked to choose between
protecting species or savings jobs and businesses, species protection
was favored by a margin of 48 to 29 percent. Sawhill, Saving Endangered
Species Doesn't Endanger the Economy, Wall. St. J., Feb. 20, 1992, at
A15.
\7\ 437 U.S. at 178-79.
\8\ Id. at 184.
---------------------------------------------------------------------------
Balanced, scientific evaluations of the ESA have consistently
endorsed its basic principles. Evaluating more than two decades of
experience with the ESA, the National Research Council in 1995, in a
report commissioned by Congress, found that ``the ESA is based on sound
scientific principles.'' \9\ It concluded that ``there is no doubt that
it has prevented the extinction of some species and slowed the decline
of others.'' \10\ In a letter to the U.S. Senate in March 2006 a group
of 5,738 biologists praised the ESA and criticized proposals to weaken
its protections. The biologists noted that the ESA had contributed to
``significant progress'' in species protection. They stressed the
importance of the ESA's emphasis on ``best available science'' and they
criticized proposals to mandate the use of non-scientific factors to
delay or block listing decisions, designations of critical habitat or
implementation of species recovery plans.\11\
---------------------------------------------------------------------------
\9\ National Research Council, Science and the Endangered Species
Act 4 (1995).
\10\ Id.
\11\ Letter from 5,738 Biologists to the U.S. Senate Concerning
Science in the Endangered Species Act, March 2006 (http://
www.ucsusa.org/assets/documents/scientific_integrity/
biologists_california.pdf).
---------------------------------------------------------------------------
ii. inadequate funding has jeopardized implementation of the esa.
imposition of additional unfunded mandates on agencies would only
exacerbate this problem.
A fundamental problem with implementation of the ESA has been the
chronically inadequate funding that has been afforded the Federal
agencies charged with implementing the Act. Since it was last
reauthorized in 1992, the ESA has been implemented through annual
appropriations that have been inadequate to enable the agencies
promptly to comply with their statutory responsibilities.\12\ This has
made the agencies targets for lawsuits seeking to compel them to
perform their non-discretionary duties. Until Congress provides
adequate funding to enable Federal agencies to discharge in a timely
fashion their responsibilities for listing endangered species, for
consulting with other Federal agencies concerning their conservation
obligations for listed species, and for promoting species recovery
efforts, the current pattern of litigation is likely to continue.
---------------------------------------------------------------------------
\12\ Donald C. Baur, Michael J. Bean & William Robert Irvin, A
Recovery Plan for the Endangered Species Act, 39 Envt'l L. Rep. 10006,
10010 (2009).
---------------------------------------------------------------------------
The imposition of additional unfunded mandates on the agencies
would only exacerbate existing problems of inadequate agency resources.
Three of the four bills under consideration at this hearing would
create new statutory responsibilities for the agencies implementing the
ESA without increasing the already-inadequate funds available to them.
H.R. 4315 would require publication on the Internet of the basis
for determinations that species are endangered and threatened. This is
unnecessary given the agencies' existing statutory obligation under the
ESA and the Administrative Procedure Act (APA) to provide public notice
of proposed and final agency actions in the Federal Register, which is
available on the internet, and to describe and evaluate the reasons and
data upon which agency actions are based.\13\
---------------------------------------------------------------------------
\13\ See ESA Sec. 4(b)(3)(B), 16 U.S.C. Sec. 1533(b)(3)(B) (``the
Secretary shall promptly publish such finding in the Federal Register,
together with a description and evaluation of the reasons and data on
which the finding is based.'') and ESA Sec. 4(b)(4), 16 U.S.C.
Sec. 1553(b)(4) (mandating that the informal rulemaking provisions of
the APA, 5 U.S.C. Sec. 553, apply to regulations issued under the ESA),
and ESA Sec. 4(b)(8) (requiring that publication in the Federal
Register of any listing regulation ``shall include a summary by the
Secretary of the data on which such regulation is based and shall show
the relationship of such data to such regulation.'').
---------------------------------------------------------------------------
H.R. 4316 would require the Secretary of Interior annually, in
consultation with the Secretary of Commerce, to gather and to submit to
Congress detailed data concerning not only every citizen suit brought
under the ESA, but also every notice letter informing the agency of an
alleged violation of the Act. This data would include not only direct
expenditures by the agencies on any aspect of preparation for, or
conduct of such litigation, but also estimates of employee time devoted
to such activities. The bill targets only citizen suits and does not
require reporting of the costs of responding to oversight requests by
congressional committees, which have been quite substantial.\14\ By
focusing solely on the costs of performing agency duties under the ESA,
without any consideration of the benefits of such actions, this data
would contribute to a distorted view of the value of the ESA.
---------------------------------------------------------------------------
\14\ See Letter from Secretary of Interior Sally Jewell to Chairman
Hastings, January 15, 2014 (http://www.eenews.net/assets/2014/01/16/
document_daily_04.pdf) (estimating that the Department of Interior
spent more than 19,000 staff hours and nearly $1.5 million responding
to 27 document requests from this committee).
---------------------------------------------------------------------------
H.R. 4317 would dictate that the ``best scientific and commercial
data available'' include ``all such data submitted by a State, tribal,
or county government.'' If this is interpreted to mean that any data
submitted by such a government must be deemed to be the ``best
scientific and commercial data available,'' the requirement would
constitute an improper effort by Congress to dictate scientific
judgments. If instead it means only that when governments submit
scientific and commercial data that is indeed the best available, it is
unnecessary because this is already permissible under existing law.
iii. congress should not amend the attorney fee-shifting provisions of
the esa
The ability of citizen groups and businesses to go to court to hold
agencies accountable is one of the most important features of our legal
system that makes it the envy of the world. It has been absolutely
critical to ensuring that our Federal environmental laws are
implemented and enforced in a manner consistent with statutory
directives, as the Supreme Court noted in its landmark TVA v. Hill
decision.\15\
---------------------------------------------------------------------------
\15\ 437 U.S. 153, 181 (citing the ESA's ``provisions allowing
interested persons to petition the Secretary to list a species as
endangered or threatened and bring civil suits in U.S. district courts
to force compliance with any provision of the Act.'')
---------------------------------------------------------------------------
The citizen suit provision contained in Section 11(g) of the
Endangered Species Act \16\ mirrors those contained in the other major
Federal environmental statutes.\17\ It authorizes the court to ``award
costs of litigation (including reasonable attorney and expert witness
fees) to any party, whenever the court determines such award is
appropriate.'' \18\ In Ruckelshaus v. Sierra Club,\19\ the Supreme
Court interpreted similar language in the citizen suit provision of the
Clean Air Act to require success on the merits before a party can
become eligible for an award of attorney's fees.
---------------------------------------------------------------------------
\16\ 16 U.S.C. Sec. 1540(g).
\17\ See generally, Congressional Research Service, Award of
Attorneys' Fees by Federal Courts and Federal Agencies, June 20, 2008.
\18\ 16 U.S.C. Sec. 1540(g)(4).
\19\ 463 U.S. 680 (1983).
---------------------------------------------------------------------------
The attorney fee-shifting provisions Congress has enacted in nearly
all the Federal environmental laws are designed to enable ordinary
citizens to ensure that the laws are implemented and enforced.\20\
Despite claims to the contrary, citizen suits have proven to be
essential to effective implementation of the ESA \21\ and the other
major Federal environmental statutes. Thus, there is no justification
for measures to discourage such actions.
---------------------------------------------------------------------------
\20\ Robert V. Percival & Geoffrey P. Miller, ``The Role of
Attorney Fee Shifting in Public Interest Litigation,'' 47 Law & Cont.
Problems 235 (1984), available online at: http://
scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3755&context=lcp.
\21\ Laura Peterson, Lawsuits Not Hurting Endangered Species Act--
FWS Director, Greenwire, July 5, 2012; Berry Bosi & Eric Biber, Citizen
Involvement in the U.S. Endangered Species Act, 337 Science 802 (Aug.
2012).
---------------------------------------------------------------------------
H.R. 4318 would replace the existing standard for awarding
attorney's fees under the ESA with a more restrictive standard
contained in the Equal Access to Justice Act (EAJA). Rather than
allowing judges to award ``reasonable'' fees to prevailing parties when
``appropriate,'' as authorized under existing law, this amendment would
single out ESA citizen suits and subject them to below-market fee caps
under the EAJA. There is no justification for removing citizen suits
brought under the ESA from the same fee-shifting standards applicable
to the other major Federal environmental laws. As noted above,
Ruckelshaus v. Sierra Club already restricts attorney's fee awards to
prevailing parties. Thus, H.R. 4318 is merely a measure designed to
make it more difficult for citizens to hold government agencies
accountable for failing to implement the ESA.
iv. conclusion
The ESA is a landmark piece of legislation that was the product of
an overwhelming, bipartisan consensus concerning the importance of
preserving biodiversity. Congress authorized citizen suits to hold
agencies accountable for violations of the Act. Measures to impose
additional unfunded mandates on agencies implementing the ESA will only
make it more difficult for them to carry out their statutory
responsibilities. There is no justification for replacing the ESA's
attorney's fee-shifting provision that currently mirrors those
contained in virtually every other major Federal environmental law.
______
Mrs. Lummis. I thank the gentleman, and I now recognize Mr.
Ken Holsinger of Denver, Colorado. Thank you for being here.
STATEMENT OF KENT HOLSINGER, ATTORNEY, HOLSINGER LAW, DENVER,
COLORADO
Mr. Holsinger. Thank you, Madam Chair, members of the
committee. It is my honor to be here to testify in support of
H.R. 4316, the ``Endangered Species Recovery Transparency
Act,'' and H.R. 4318, the ``Endangered Species Litigation
Reasonableness Act.''
As the manager of a small Denver-based law firm that
specializes in lands, wildlife, and water law, I can attest to
the rampant litigation abuses that have been perpetrated under
the Endangered Species Act. Last year was the 40th anniversary
of the Act. It has been amended in 1978, 1982, and, last, in
1988. Now, to put that in perspective, in 1988 the Soviet Union
was a superpower, and Def Leppard topped the pop charts. It is
high time to modernize and update this law.
Like none other, litigation drives the ESA. And,
unfortunately, a few activist groups have buried the U.S. Fish
and Wildlife Service in petitions and litigation. The Center
for Biological Diversity and Wild Earth Guardians in particular
have petitioned to list hundreds and hundreds of species. And
when the Fish and Wildlife is overwhelmed in trying to respond,
these groups are litigating against missed deadlines. They are
creating the very problems they are suing over.
For example, Wild Earth Guardians, formerly known as Forest
Guardians, and Center for Biological Diversity have been
litigants in no fewer than 1,366 cases between 1990 and the
present: Wild Earth Guardians in 401 cases, Center for
Biological Diversity in 965.
Now, looking closely at the Wild Earth Guardians cases,
most have been brought against the Federal Government, about 95
percent. Most have been against the Department of the Interior,
and most have been on ESA issues.
Center for Biological Diversity, you can see, has filed
most of their cases in the 9th Circuit Court of Appeals. This
is, by the way, a chart showing, by each U.S. district court,
cases filed by Center for Biological Diversity. We got this
information through the Public Access to Court Electronic
Records, or PACER, and searched each and every Federal
jurisdiction to find where Center for Biological Diversity and
Wild Earth Guardians had filed suit.
We also searched the appellate courts and the number of
cases. You can see a huge preference for the 9th Circuit Court
of Appeals, the most overturned circuit in the Nation. And if
you tally these 965 cases brought by CBD, about two-thirds were
in the 9th Circuit and the District of Columbia.
Wild Earth Guardians, in the next slide, a little bit
different. You can see many cases filed where they are based in
New Mexico, of their total of 403 cases filed.
In 2011, as you know, Wild Earth Guardians and CBD entered
a significant settlement agreement with Fish and Wildlife
Service, auspiciously to help prevent litigation and stem this
vicious sue-and-settle cycle. Unfortunately, since then, CBD
has still been a party to 179 lawsuits, Wild Earth Guardians,
88.
These actions are robbing the species to pay the attorneys.
And as long as 10 years ago the Fish and Wildlife Service
itself recognized, in discussing litigation over critical
habitat, it provides little real conservation benefit. ``Driven
by litigation in the courts, rather than biology, it limits our
ability to fully evaluate the science, consumes enormous agency
resources, and imposes huge societal and economic costs.'' That
quote is more apropos today than ever.
H.R. 4316 and H.R. 4318 would do much to improve the ESA,
and make sure that resources are used where they belong. Let's
use our scarce conservation resources wisely, rather than on
this frivolous and needless litigation.
Madam Chair, thank you again for the opportunity to testify
in support of these measures. We have seen a windfall to the
attorneys in these few activist groups, and it is high time
that Congress address these issues, update and modernize the
ESA for the betterment of people, wildlife, and the communities
that depend upon them. Thank you.
[The prepared statement of Mr. Holsinger follows:]
Prepared Statement of Kent Holsinger, Attorney, Holsinger Law, LLC,
Denver, Colorado on H.R. 4316 and H.R. 4318
Thank you for the opportunity to testify in support of H.R. 4316
(the Endangered Species Recovery Transparency Act) and H.R. 4318 (the
Endangered Species Litigation Reasonableness Act). Holsinger Law, LLC
is a small, Denver-based law firm that specializes in lands, wildlife
and water law. I am testifying as the manager of Holsinger Law, LLC. In
that capacity, I can attest to the rampant litigation abuses under the
Endangered Species Act (``ESA'') and the need for H.R. 4316 and H.R.
4318. These measures would improve and update the ESA while ensuring
scarce conservation resources go to real, on-the-ground work rather
than taxpayer-funded litigation.
i. the endangered species act should be updated
Last year was the 40th anniversary of the ESA. The ESA is the most
powerful environmental law in the world. The end product of nearly a
century of Federal encroachment on State authority and control over
wildlife, it was passed by the Congress and signed by President Nixon
in 1973. The ESA replaced 1966 and 1969 laws which provided for the
listing of endangered species but with little substance. The 1973 Act
has been reauthorized eight times. Significant amendments have been
enacted in 1978, 1982, and 1988, while the overall framework of the
1973 Act has remained essentially unchanged.
Former Idaho Senator Dirk Kempthorne tried, but ultimately failed,
to amend and reauthorize the ESA in 1997. I was intimately involved in
those efforts as well as the amendments to the ESA that passed the
House in October, 2005 under the leadership of former House Resources
Committee Chairman Richard Pombo. Unfortunately, the Senate never
adopted similar legislation. The last time the ESA was updated (1988),
the Soviet Union was a superpower and Def Leppard topped the pop
charts.
ii. litigation abuses
Like no other law, litigation drives the ESA. Unfortunately, a few
activist groups have buried the U.S. Fish and Wildlife Service
(``FWS'') with listing petitions and litigation under the ESA. The
Center for Biological Diversity (``CBD'') and WildEarth Guardians
(``WEG'') have petitioned to list hundreds and hundreds of species
under the ESA. As soon as the FWS is overwhelmed responding to
petitions, these groups start litigating over missed deadlines. They
are creating the very problems upon which they are suing the FWS.
CBD and WEG \1\ have been litigants in no fewer than 1,366 cases
between 1990 and the present. WEG was involved in 401 cases while CBD
was a party to 965 cases. Of the WEG cases, approximately 95 percent
have been brought against the Federal Government. In 2010, WEG filed
more than one new lawsuit per week. Most of these have been brought
against the U.S. Department of the Interior (DOI), and most have raised
claims related to the ESA. In just the past 5 months, these two groups
have been a party to an additional 19 cases.
---------------------------------------------------------------------------
\1\ Formerly known as Forest Guardians.
---------------------------------------------------------------------------
We compiled this information using the Public Access to the Court
Electronic Records (``PACER'') system and performing a query for
``WildEarth Guardians'' and ``Center for Biological Diversity'' as a
party in each of the Federal district courts, courts of appeal, and the
U.S. Supreme Court. The earliest case included in this data was filed
in 1990. The search using this method was finished on November 12,
2013. In order to update the information, the PACER ``National Case
Locator'' function was utilized to search for cases in which WEG or CBD
were a party that were filed between November 13, 2013 to April 4,
2014. These cases were then added to the numbers generated using the
former method.
Responding to litigation-driven settlement agreements has consumed
the FWS and a significant part of its budget. Activist groups often
collect taxpayer-funded attorney fees when new deadlines are negotiated
in these cases--perpetuating a vicious ``sue and settle'' cycle.
In the summer of 2011, WEG and CBD announced a settlement agreement
with the FWS that imposed deadlines for final determinations for listed
status on 757 species no later than September, 2016. The Plaintiffs
collected over $140,000 in attorney fees and costs from the taxpayers
as part of the settlements. Since the settlements, CBD has been a party
to approximately 179 lawsuits and WEG has participated in 88 lawsuits.
On March 17, 2014, the State of Oklahoma (``Oklahoma''), along with
the Domestic Energy Producers Alliance (``DEPA''), filed suit against
the FWS citing the use of ``sue-and-settle'' tactics. Additionally the
settlements require the FWS to submit either a ``warranted'' or ``not
warranted'' decision, effectively eliminating the ``warranted but
precluded'' category. Scott Pruitt, Oklahoma Attorney General, also
stated that the ``sue and settle'' timelines force decisions from the
FWS before they have had a chance to review the science, which violates
the original structure of the ESA requiring sound science before a
listing determination is made. Overall, the parties argued that FWS has
deviated from the ESA requirements and the guidance FWS adopted
thereunder by committing to these unrealistic deadlines; and that this
action undermines support for State-led voluntary conservation programs
of other species.
Despite the settlement agreements, CBD has boasted of filing new
ESA petitions (including one emergency petition) and lawsuits as
recently as April 3, 2014, with 15 press releases announcing notices of
intent to sue, lawsuits filed, and lawsuits joined since the beginning
of the year.
iii. robbing the species to pay the attorneys
Congress passed the Endangered Species Act with visions of
protecting grizzly bears and bald eagles from reckless human-caused
extinction. Few could have foreseen how all-out protective efforts on
behalf of such little-known creatures as the burying beetle, the pallid
sturgeon, or the Preble's meadow jumping mouse would adversely impact
U.S. taxpayers due to rampant litigation abuses in which millions of
dollars of taxpayer funds are used to prepare, litigate, and settle
lawsuits brought by just a few activist groups.
This abusive litigation does little to further conservation of
species. It does much to pad the pocketbooks of a few litigious groups
and their attorneys. The Center for Biological Diversity (``CBD'')
posted an astonishing $1,406,139 in legal returns in 2012 (17 percent
of that year's total revenue) and $503,509 in 2011. In WEG's 2011
Financial Report, they stated $303,406 in legal income--accounting for
16 percent of their total income for the year. 2010 brought them
$153,545 in legal income.
Even the FWS has recognized the huge social and economic cost of
such activist litigation. In discussing critical habitat, the FWS has
stated it:
. . . provides little real conservation benefit, is driven by
litigation and the courts rather than biology, limits our
ability to fully evaluate the science involved, consumes
enormous agency resources, and imposes huge social and economic
cost. The Service believes that additional agency discretion
would allow our focus to return to those actions that provide
the greatest benefit to the species most in need of
protection.. . .\2\
---------------------------------------------------------------------------
\2\ 69 FR 53135 (Aug. 31, 2004).
---------------------------------------------------------------------------
iv. h.r. 4316 and h.r. 4318 will improve the esa
Currently, no one seems to know exactly how destructive this
litigation is. H.R. 4316, The Endangered Species Recovery Transparency
Act, introduced by Rep. Lummis, would require the FWS to report the
resources used to respond to ESA litigation, including the number of
employees needed, the funds used, and the attorney's fees awarded due
to litigation and settlement agreements. This information is vital to
determine how taxpayer dollars are being consumed by attorneys rather
than being used to support real conservation work. By reviewing this
information, steps can be taken to direct funds where they will more
effectively promote the conservation and recovery of endangered or
threatened species, and to also support boot-on-the-ground conservation
efforts at the local level.
As an attorney in private practice, I have seen environmental
groups claim excessive hourly rates in litigation. It is not uncommon
to see claims for more than $500 per hour. H.R. 4318, The Endangered
Species Litigation Reasonableness Act, introduced by Rep. Huizenga,
would place a cap on attorney fees that can be awarded by the courts.
Litigation abuses result in excessive pay-outs of taxpayer funds. A cap
limiting the hourly rate for prevailing attorneys would diminish the
incentive to ``sue and settle'' by activist groups, but more
importantly, allow taxpayer dollars to be more effectively allocated to
the conservation and recovery of species.
I strongly support the passage of these measures to improve the ESA
and urge the committee to advance them in the legislative process.
v. conclusion
Now is hardly the time for ``business as usual'' under the ESA.
Scarce resources are being wasted on litigation driven by a handful of
activist groups with little or no real conservation benefits. People
and wildlife would benefit from improvements to the ESA, through
enactment of H.R. 4316 and H.R. 4318. I urge Congress and the
administration to work together to reduce frivolous litigation through
disclosure of costs to the taxpayers and a reasonable cap on the hourly
rate for awards of attorney fees. It is high time to stop wasting
taxpayer dollars and rewarding frivolous and abusive litigation.
Thank you again for the opportunity to testify on these important
measures.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mrs. Lummis. I thank you, and want to thank all of our
panelists for their testimony. The Members will now have
questions for you. Each will receive 5 minutes to ask
questions. The Chair will begin by recognizing herself.
Ms. Budd-Falen, did the multi-species settlement in the
1990s help or hinder the agency's ability to manage its
workload, in your opinion?
Ms. Budd-Falen. Actually, in the opinion of the Fish and
Wildlife Service itself it hindered their ability to manage
their workload. Particularly toward the end, when the listing
priority guidance was filed, the Service was concerned that
dealing with the backlog of the species under the settlement
agreement was going to create a backlog of considering current
petition, and the Service itself said that it was not going to
allow this backlog to continue. That is why the listing
priority guidance was issued in the first place.
Mrs. Lummis. Do we run the same risk with the current mega-
settlement, since there is no limitation on groups continuing
to submit listing petitions?
Ms. Budd-Falen. Actually, I believe that the backlog and
the risk is worse. The original settlement only had 443
species. The current mega-settlement has 1,053 actions. So you
have dramatically increased the number of backlogged cases that
they have to deal with, as well as the Center for Biological
Diversity and Wild Earth Guardians continuing to petition more
and more species, which just puts the agency further and
further behind.
Mrs. Lummis. Mr. Bean, I used to be on the Interior
Appropriations Subcommittee. And how do you develop a budget
when you don't know how much you will be spending annually on
litigation and attorney's fees? Because this comes out of
your--well, out of U.S. Fish and Wildlife Service's budget.
Mr. Bean. Some of the fees come out of our budget, some
come out of the judgment fund, which is not Fish and Wildlife
Service----
Mrs. Lummis. Exactly. But the judgment fund has money in
it, whereas, when it comes out of your--U.S. Fish and Wildlife
Service budget, that comes out of the agency's appropriated
budget.
Mr. Bean. I believe, in the case of these deadline suits,
that they do not come out of the agency budget.
Mrs. Lummis. That is just the opposite of what I was told
by Director Ashe when I was on the committee. Now, did you make
a distinction that I misunderstood?
Mr. Bean. I am not sure what Director Ashe may have said.
My understanding is that the attorney's fees paid in the
deadline suits are paid from the judgment fund.
Mrs. Lummis. OK, a deadline suit being different from some
of these mega-settlements.
Mr. Bean. No, the mega-settlements all--the MDL settlement,
as we call it, dealt only with deadline cases.
Mrs. Lummis. OK. So if it is true that mega-settlements are
paid out of the judgment fund, what types of litigation are
paid for out of the agency's budget, in terms of reimbursing
lawyers?
Mr. Bean. Yes, my understanding is if the Fish and Wildlife
Service is sued under the Administrative Procedure Act for----
Mrs. Lummis. Missing deadlines.
Mr. Bean. Not for missing deadlines, but for discretionary
actions that are alleged to be arbitrary and capricious, if we
lose those cases we pay out of our agency funds.
Mrs. Lummis. OK. So do you just guess about how many
settlements of those kinds of suits there will be every year,
where your budget is actually tapped?
Mr. Bean. I don't know the precise process. My assumption
is the Fish and Wildlife Service looks to the past as a guide
to the future, and anticipates based on past experience.
Mrs. Lummis. OK. At this time I am going to recognize the
Ranking Member for 5 minutes.
Mr. Grijalva. Thank you. Mr. Percival, do you agree with
the statement that was just made, that the ability to file
citizens suits has made ESA essentially a situation where those
suits are robbing species--that we are robbing species
protection to pay for litigation, and pay attorney's fees?
Mr. Percival. No, definitely not. Citizen suit provisions
are sometimes the only lawyer the species has, if it is not
adequately being dealt with, or being ignored by the agency.
Mr. Grijalva. You know, and just a quick follow-up on
citizen suits. You know, suing the government is as American as
apple pie. And the issue is litigation in terms of education,
voting rights, health care that just went to the Supreme Court,
where citizens brought that to that court, seeing it as a last
resort. So it is not a unique situation that we are talking
about in this instance with ESA. And if you could, just expand
on that.
Mr. Percival. It is certainly not unique under American
law. It is one of the aspects of American law that makes our
system the envy of the world. In the last several years I have
done a tremendous amount of work in China, where they have
immense environmental problems. And the Chinese
environmentalists realize that the one thing they are never
going to be able to do is to sue their national government to
enforce the environmental laws. And that is one aspect of U.S.
environmental law that they would love to be able to have.
Mr. Grijalva. Thank you. Ms. Budd-Falen, while you have
repeatedly challenged the merits of the attorney's fees
recovered by environmental organizations, in 2001 your firm
received 100,000 in fees under the New Mexico Cattle Growers
Association case brought under the Endangered Species Act;
2005, again, Cattle Growers against Fish and Wildlife, 59,000
in fees, Section 11(g) of ESA; in 2006, 165,000 in fees, 4,500
in costs under the Equal Access to Justice Act and the ESA in
the Nebraska Habitat Conservation. Can you tell this committee
whether there have been other ESA-related cases, where you
successfully recovered fees? And how much recovered, either
under ESA or Equal Access to Justice Act?
Ms. Budd-Falen. Mr. Grijalva, I believe that you have
listed the ESA cases. We have settled other cases with regard
to getting EAJA funds.
But you are totally mischaracterizing my testimony. I am
not arguing that the Endangered Species Act citizen suit
provision should be eliminated. I am not arguing that
attorney's fees shouldn't be paid under the Equal Access to
Justice Act. What I am arguing, and what I have offered on
behalf of every client that I have received fees from is that
those ought to be transparent to the public. Those fees are
American taxpayer dollars. And if my clients receive them, the
public should know. If the Center for Biological Diversity
receives them, they should----
Mr. Grijalva. You are saying they should come out of Equal
Access--that the payments should be capped under the Equal
Access, right?
Ms. Budd-Falen. Under the Equal Access to Justice Act they
are already capped at----
Mr. Grijalva. I know, and so--not out of the judgment fund.
Ms. Budd-Falen. That is correct.
Mr. Grijalva. So, if the cases you litigated are under the
suit provisions of ESA, that section that is not capped, 11(g),
were you able to avail yourself of unlimited and unreasonable
fees, as you claim other litigants under the same provision, in
citizen suits, are doing so?
Ms. Budd-Falen. Actually, if you look at the petitions that
we filed, we requested our regular attorney's fees. My maximum
hourly rate, as of 2014, is----
Mr. Grijalva. Well, it is a goose and gander question.
Because if it is--we are assuming, then, that other
organizations, whether it be the Center for Biological
Diversity--are somehow playing the system and not doing the
practices that you are doing. So, therefore, you are not
availing yourself of unlimited fees and collections there, the
assumption can be that potentially no one else is, either.
Ms. Budd-Falen. I strongly disagree with you. If you look
at the last attorney's fees request from Earth Justice--maybe
it wasn't the last, but it was a recent one----
Mr. Grijalva. OK.
Ms. Budd-Falen [continuing]. They requested $775 an hour
for attorney's fees. There is not an attorney in the United
States worth $775 an hour----
Mr. Grijalva. Let me just--if I can wrap up, Madam Chair, I
have similar questions for Mr. Holsinger, relative to his fees,
and relative to the collection of those fees, including a thing
yesterday, which was $600 an hour per page, $6,000. I have
those. I will submit those for appropriate answers following
the goose and gander scenario that I am trying to ask about.
Thank you.
Mrs. Lummis. The gentleman's time is expired. And before
the Chair recognizes the gentleman from Utah for 5 minutes, I
would like to ask the staff to put up the chart on the Center
for Biological Diversity litigation 1990 to present. Thank you
very much.
The Chair recognizes the gentleman from Utah, Mr. Bishop.
Mr. Bishop. Thank you. And you recognized me on the first
guess, too. I appreciate that.
We had in the first panel a whole lot of talk about the
kinds of data that are used. So, Ms. Budd-Falen, if I could ask
you, first question about data. Are critical habitat
designations only limited to natural features?
Ms. Budd-Falen. No, your Honor. Actually, there has--I am
sorry. I am so used to court.
[Laughter.]
Mr. Bishop. And from now on, Grijalva is going to use that
all the time. I appreciate it.
[Laughter.]
Ms. Budd-Falen. Actually, we recently had a decision by the
U.S. Fish and Wildlife Service on the Chiricahua leopard frog.
That Chiricahua leopard frog critical habitat designation
includes manmade stock tanks created by ranchers in the 1930s
and 1940s. Those ranchers in Arizona are now being told that
they have to ensure pH and all of these different criteria for
water tanks that they developed that is now critical habitat.
Those frogs wouldn't be there, had it been for the ranchers,
and they are trying to cut the ranchers' ability to use their
grazing allotments.
Mr. Bishop. All right, I appreciate that. Let me follow up
with another question to you on a different track of what the
second panel is more interested in doing.
The second--I am sorry. The administration says that it
wants to explore administrative options to track costs. Why is
legislation necessary to achieve this, Ms. Falen?
Ms. Budd-Falen. Because, quite frankly, the administration
is doing a terrible job at tracking costs, even according to
the GAO reports that have come out. The GAO reports very
clearly state the Department of Justice does not clearly track
these costs. It also stated that, with regard to the USDA and
the recent report that came out on that, as well as the EPA and
the GAO report on that.
And, in my own experience, when we filed a Freedom of
Information Act request with Department of Justice asking for
all of the cases filed by a certain environmental group in one
Federal district court in a certain period of time, when we
compared the docket sheets with the Federal court database,
they missed 23 cases.
Mr. Bishop. OK. So to both you and Mr. Holsinger, does
anything in H.R. 4316 or the other bill--I can't remember the
number right now--prohibit litigants from suing the Federal
Government on ESEA? ESA, I am sorry.
Ms. Budd-Falen. Absolutely not. And I think the idea that--
claiming that this is somehow harming the citizen suit
provision is just a red herring, because people are so afraid
to modernize the ESA.
Mr. Bishop. Mr. Holsinger?
Mr. Holsinger. I would echo that. There is absolutely no
prohibition. And I would liken back to Congressman Grijalva's
comment that litigation is like apple pie. Well, if that is the
case, then CBD and Wild Earth Guardians have had 1,366
servings, and that is outrageous.
Mr. Bishop. Thank you. And I wish you could do the same
thing on ESEA, which is another pain I have to bear. But I am a
teacher, so forget that one.
[Laughter.]
Mr. Bishop. Can I--again, to the two of you, Mr. Holsinger
and Ms. Falen, one of your colleagues there has testified that
H.R. 4318 discourages lawsuits by reducing taxpayer-financed
attorney's fees. You have extensive experience with these kind
of fees. This committee has found instances where environmental
attorneys have charged the government over $500 per hour. And
one attorney received exorbitant fees for successfully using
the ESA to stop construction of an elementary school.
How do you address the argument that attorneys should not
live under the same attorney's fee standard as the Equal Access
to Justice Act?
Ms. Budd-Falen. Actually, I do not think that there is a
justification. The Equal Access to Justice Act has the same
purpose as the fee shifting provisions under the citizen suit
provision, which is to reimburse reasonable attorney's fees. It
was not a get-rich-quick, make-a-lot-of-money-for-your-
organization proposition.
The Equal Access to Justice Act attorney's fees have been
updated. They are now approximately $200 an hour, considering
cost of living and all that other kind of requirements. I see
no reason that an attorney for a veteran should be treated any
different than an attorney for a tree or a rock.
Mr. Bishop. All right, thank you. Mr. Holsinger, 30 seconds
or less.
Mr. Holsinger. I can say, as an attorney in private
practice, that my practice is nowhere near as lucrative as some
of the outrageous fees that we have heard about today.
Mr. Bishop. Thank you. And Mr. Bean, I actually had one
last question for you. Unfortunately, I have 20 seconds, and it
would have fit better in the first panel anyway, so next time
you come up here you've got it coming.
Mr. Bean. Beg your pardon, sir?
Mr. Bishop. I am sorry. I will save it until the next time
you come up here.
Mr. Bean. OK. Thank you, sir.
Mr. Bishop. Yield back.
Mrs. Lummis. I thank the gentleman and recognize the
gentleman from Montana, Mr. Daines.
Mr. Daines. Thank you, Madam Chairwoman. In Montana, we
know too well how land management actions by Federal agencies
are halted, due to habitual litigants. This is all to the
detriment of responsible resource management and our local
economies. From providing timely renewals of recreation
permits, to approving much-needed timber sales, or preventative
treatments for catastrophic wildfire, Federal agencies spend
millions of dollars analyzing their decisions to bullet-proof
them from lawsuits that are then only halted in court.
You know, in Montana national forests cover about 15
million acres. That is about 60 percent of the total forested
acreage in the State. But timber sales on national forests have
declined by 58 percent since 2009. And, meanwhile, our timber
mills are obtaining logs hundreds of miles away from their
mills to keep their business afloat, while their resources
deteriorate in our Montana forests.
In fact, I was up in Lincoln County, met with a couple from
Eureka, Montana at dinner, and they shared with me. They said,
``We describe this part of the State any more as poverty with a
view.'' The poverty rates in our forested counties in Montana
are well above the State average. In fact, in Lincoln County,
75 percent of the ground up there is owned by the Federal
Government, and the unemployment rate is 15.2 percent.
Now, the Alliance for the Wild Rockies, one of these
environmental groups that file lawsuits, they filed an
injunction of timber sale in the Little Belt of Montana, based
on the lynx habitat impact. This sale could have provided logs
to a mill in Montana.
The more resources spent on analyzing decisions, fighting
in court, not only waste taxpayer dollars, but reduces the
value of the resource, and kills jobs in rural communities.
Additionally, after these decisions are made, the taxpayers
foot the bill for the attorney's fees. In fact, the Alliance
for Wild Rockies challenged the Cabin Gulch Vegetation
Management Project, a project intended to treat beetle-infested
trees. These are trees that have died in the Big Belt Mountains
in Montana. This 9th Circuit that is referred to here on the
screen, the 9th Circuit Court judge upheld the Forest Service
actions--upheld the Forest Service actions--in 11 of the 12
counts. But they halted the project, due to potential impact on
lynx habitat.
And then here is what happened, to add insult to injury.
The Federal judge awarded 100 percent of the attorney's fees,
requested at a rate in excess of the normal fee, despite the
Forest Service challenge. The court paid $300 an hour, instead
of the standard Montana rate of $220 an hour. And although the
Forest Service prevailed in 11 of the 12 counts--that is not
too bad a batting average--the Forest Service must now pay
$72,000 in attorney fees. Those are taxpayer dollars.
Karen, maybe we could start with you. Could you tell me
what effect does litigation and attorney's fees, pay-outs, have
on actual species recovery?
Ms. Budd-Falen. Absolutely none. The problem is the money
isn't going to on-the-ground projects or on-the-ground
improvement for the species. It is simply going to pay
attorneys to file more litigation to stop more projects that
are happening on the ground.
Mr. Daines. Mr. Holsinger, you know, we are making some
pretty rich apple pies up there in Montana, based on your
analogy there. Could you comment on that?
Mr. Holsinger. Yes, Congressman. I would echo Ms. Falen. I
have personal knowledge of working with the Upper Colorado
River Recovery Program, an effective program to help recover
and de-list species in the Colorado River. They were faced with
litigation filed against them, much like we are talking about
today. And I can tell you that tied them up for years in
responding to the document requests and the huge burdens of
litigation. It prevented them from doing their jobs, which were
to try to recover the listed fish in the Colorado River. I am
sure that plays over time and time again.
And I am, frankly, mind-boggled. I have a great deal of
respect for Mr. Bean. I am stymied that he would devote only a
sentence of his oral remarks on this litigation issue. And, Mr.
Rauch, who I did not know until today, as far as I could tell,
virtually ignored it.
Mr. Daines. I have to tell you. I was at a mill recently in
southwest Montana, and we only have 9 timber mills left in
Montana; we used to have 30. Working with these hard-working
Montanans, they are looking at having to go 450 miles away for
a timber sale right now, out of State and, by the way, outside
the 9th Circuit jurisdiction, to get logs.
As we are having this conversation, looking at a hillside
of dead trees on national forests, killed by beetles, next to a
hillside that had been wiped out by a forest fire that we still
have recoverable timber, and we couldn't go up there and
harvest it, and having to travel over 500 miles to get logs to
supply the mill--I see my time is up, Madam Chairwoman.
Mrs. Lummis. Yes, the gentleman's time is expired. We will
have a second round. Each Member will be asked to limit
themselves to one question. The Chair recognizes herself.
There has been a lot of concern expressed on the first
panel about how data transparency might jeopardize proprietary
data. And we know that medical and other scientific fields have
dealt with the issue of proprietary data versus transparency
for non-proprietary data and protected personal data.
Ms. Budd-Falen, have voluntary efforts to conserve the
sage-grouse, including candidate conservation agreements, been
undermined by the reluctance of the Federal Government to
protect proprietary data in the case of land owners' personal
data?
Ms. Budd-Falen. Absolutely. And I find that a totally
fascinating subject here, because you have the Federal agencies
on one hand, saying that we have to protect all this data on
which the decisions are made, yet, for example, on the sage-
grouse CCAA in Oregon that we are trying to do, the Fish and
Wildlife Service is saying that if a land owner signs up to
voluntarily do species protection, that all of his data is
subject to FOIA, and that that can go out.
And so, it really seems a conflict to me. And the idea that
the Fish and Wildlife Service just voluntarily gives this data
is truly laughable to a lot of us, because under FOIA is the
only way that you know that you get all of the information in
data. When they just voluntarily release it, you have no idea
if they are cherry-picking the data, or if they are cherry-
picking the information.
And so, to say that the current system is working with
regard to the release of data is simply not correct and not
transparent at all.
Mrs. Lummis. Thank you. The Chair's time has expired. The
Chair recognizes the Ranking Member, Mr. Grijalva.
Mr. Grijalva. Thank you, and the issue of proprietary is
confusing to me. The fluids and chemicals used in fracking are
proprietary. And, therefore, that shouldn't be released. But
data that somebody might consider proprietary in ESA, that
shouldn't be protected.
Anyway, Mr. Percival, what authority--third factor in this
discussion. What authority do the Federal courts have to ensure
that attorney fees, awards are reasonable, and only provided
when appropriate under the citizen suit provision of ESA? And
are the Federal courts vigorous in vetting that process?
Mr. Percival. Yes, it is definitely the case that the
Supreme Court in the Ruckelshaus case, as I mention in my
testimony, said that before any party could be eligible for an
attorney's fee they had to be a prevailing party. And that
means you have to win some aspect of the lawsuit before you can
even be eligible to apply for the attorney's fees.
Then, the standard for receiving attorney's fees under the
attorney's fees shifting provision of the Endangered Species
Act requires that the court determine that the fee is
reasonable. So, in each of these cases where attorney's fees
awards have been made that some are touting as outrageous, you
had a member of the independent, neutral, Federal judiciary
determining, based upon an assessment of the amount of work and
skill that went into the litigation, that that fee award was
reasonable. And those are very important safeguards that ensure
that fee awards are not outrageous windfalls to plaintiffs who
bring non-meritorious litigation.
Mr. Grijalva. Thank you. Yield back, Madam Chair.
Mrs. Lummis. I thank the Ranking Member. The gentleman from
Utah is recognized for one question.
Mr. Bishop. Thank you. I have a three-parter.
[Laughter.]
Mr. Bishop. I am sorry. Mr. Bean, I have a chance to ask
you the question, after all. So, during the hearing last August
I was able to ask Director Ashe if it would be both possible
and preferable that actual data be used for ESA decisions that
affect both species and people, and should be available for
everyone to see online and on the Internet. And he answered,
clearly, yes. That is the verbiage that is up there.
So, for A, just for the record, I would like to get--is
your answer yes or no to that same question?
Mr. Bean. I would answer the same way.
Mr. Bishop. OK. So then, B, I further asked Mr. Ashe, then,
that the Fish and Wildlife Service would look at the very
questionable data that was referenced in a letter from Fish and
Wildlife to the State of Utah relating to the greater sage-
grouse, namely relating to tall structures, buffers, and
disturbance limits. The concern for many of the States,
including Utah, was intensified last week when Secretary Jewell
alluded to a scenario where 40 regulations might be used in the
event the sage-grouse is listed.
So, instead of that, why shouldn't the Department of the
Interior simply make good on its stated purpose of endorsing
the State plans, and keep it off list in the first place?
Mr. Bean. The Fish and Wildlife Service has made no
decision about whether the sage-grouse will go on the list or
not. I will not make that decision, will not propose a
decision, until September of 2015.
Mr. Bishop. All right. Then, in that case, my question is
rhetorical, and obviously, preferable than doing the 4(d)
speculation that could be taking place. States have done a
great job, they need to have their data there.
And my part C, I need to ask if the Chairlady would be kind
enough to tell me what my part C is.
Mrs. Lummis. Oh, I thank the gentleman. Part C would be
addressed to the gentleman from Denver regarding why the 9th
Circuit is the preferred circuit for the Center for Biological
Diversity and other environmental litigants.
Mr. Bishop. I knew that.
[Laughter.]
Mr. Holsinger. Thank you, Madam Chair, Congressman. You
know, one can only speculate, but it is commonly known that the
9th Circuit is the most commonly over-turned circuit in all of
the U.S. court system. I think these litigants are picking
their venues.
Mr. Bishop. With that, I yield back.
Mrs. Lummis. I thank the gentleman. And I thank the panel.
This has been a productive hearing. It follows a year's worth
of hearings to develop the legislation that you see before you.
And I appreciate the panel's feedback on the legislation you
see before you, now that it has been drafted.
As I mentioned before, Members will have additional
questions for witnesses, possibly, and we ask that you respond
to these in writing. The hearing record will be open for 10
business days to receive these responses.
Now, with our tremendous gratitude to the people who are
here today--because we know how much time it takes to get to
Washington and to prepare the testimony you have presented
today--we want you to know we are extremely grateful for your
input. If there is no further business, without objection, the
committee stands adjourned.
[Whereupon, at 12:43 p.m., the committee was adjourned.]
[all]