[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]



 
    HEARING ON IMPLEMENTATION OF THE ENDANGERED SPECIES ACT IN THE 
                               SOUTHWEST

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             SECOND SESSION

                               __________

                     JULY 15, 1998, WASHINGTON, DC

                               __________

                           Serial No. 105-96

                               __________

           Printed for the use of the Committee on Resources


                               

 Available via the World Wide Web: http://www.access.gpo.gov/congress/house
                                   or
           Committee address: http://www.house.gov/resources


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                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey               NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California           BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee       DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado                PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California        ENI F.H. FALEOMAVAEGA, American 
WAYNE T. GILCHREST, Maryland             Samoa
KEN CALVERT, California              NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California         SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming               OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho               FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington              CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto 
WALTER B. JONES, Jr., North              Rico
    Carolina                         MAURICE D. HINCHEY, New York
WILLIAM M. (MAC) THORNBERRY, Texas   ROBERT A. UNDERWOOD, Guam
JOHN SHADEGG, Arizona                SAM FARR, California
JOHN E. ENSIGN, Nevada               PATRICK J. KENNEDY, Rhode Island
ROBERT F. SMITH, Oregon              ADAM SMITH, Washington
CHRIS CANNON, Utah                   WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas                   CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania          DONNA CHRISTIAN-GREEN, Virgin 
RICK HILL, Montana                       Islands
BOB SCHAFFER, Colorado               RON KIND, Wisconsin
JIM GIBBONS, Nevada                  LLOYD DOGGETT, Texas
MICHAEL D. CRAPO, Idaho

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held July 15, 1998.......................................     1

Statement of Members:
    Farr, Hon. Sam, a Representative in Congress from the State 
      of California..............................................     2
    Hansen, Hon. James V., a Representative in Congress from the 
      State of Utah..............................................     3
    Miller, Hon. George, a Representative in Congress from the 
      State of California, prepared statement of.................   136
    Pombo, Hon. Richard W., a Representative in Congress from the 
      State of California........................................     1

Statement of Witnesses:
    Anable, Michael, Deputy State Land Commissioner, Arizona Land 
      Department, Phoenix, Arizona...............................     9
        Prepared statement of....................................   147
    Bason, Jimmy, New Mexico Cattlegrowers Association, 
      Albuquerque, New Mexico....................................     4
        Prepared statement of....................................    57
    Coppelman, Peter, Deputy Assistant Attorney General for the 
      Environment and Natural Resources Division, U.S. Department 
      of Justice.................................................    42
        Prepared statement of....................................   165
    Hutchinson, Howard, Coalition of Arizona/New Mexico Counties, 
      Glenwood, New Mexico.......................................     6
        Prepared statement of....................................   141
    Lohoefener, Renne, Assistant Regional Director, Fish & 
      Wildlife Service, U.S. Department of Interior..............    40
        Prepared statement of....................................    69
    Menges, Jeff, Second Vice President, Arizona Cattlemen's 
      Association, Phoenix, Arizona..............................    39
        Prepared statement of....................................    64
    Ohmart, Dr. Robert D., Center for Environmental Studies, 
      Arizona State University, Tempe, Arizona...................    10
        Prepared statement of....................................    62
    Towns, Eleanor, Regional Forester for the Southwestern 
      Region, U.S. Forest Service and Dave Stewart, Acting 
      Director of Range Management...............................    44
        Prepared statement of....................................    71
        Additional material submitted by.........................   250
    Wiygul, Robert, Earth Justice Legal Defense Fund, Denver, 
      Colorado...................................................     7
        Prepared statement of....................................    60

Additional material supplied:
    Fager, Leon, USFS-Retired, Rio Rancho, New Mexico, prepared 
      statement of...............................................   137

Communications submitted:
    Chamber of Commerce, Sacramento, California, prepared 
      statement of...............................................   246
    Chilton, James K. Jr., Chilton Ranch & Cattle Company, 
      Arivaca, Arizona, prepared statement of....................   221
    Jennings, Brian and Deb, Lazy H Cross Ranch, C/O Irving Power 
      Plant, Camp Verde, Arizona, prepared statement of..........   135
    Johnson, Earl C., and Clifford K., Partners, Johnson Cattle 
      Company, Mesa, Arizona, prepared statement of..............   235
    Knight, Phillip K., Date Creek Ranch, Wickenburg, Arizona, 
      prepared statement of......................................   181
    Murphy, Joan B., Phoenix, Arizona, prepared statement of.....   158
    Perkins, Tom, Perkins Ranch, Inc., Chino Valley, Arizona, 
      prepared statement of......................................   241
    Sanborn, Sandy and Marvalene, prepared statement of..........   132
    Sutin, L. Anthony, Acting Assistant Attorney General, U.S. 
      Dept. of Justice, prepared statement of....................   184



    HEARING ON IMPLEMENTATION OF THE ENDANGERED SPECIES ACT IN THE 
                               SOUTHWEST

                              ----------                              


                        WEDNESDAY, JULY 15, 1998

                          House of Representatives,
                                    Committee on Resources,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:07 p.m., in 
room 1324 Longworth House Office Building, Hon. Richard W. 
Pombo [acting chairman of the Committee] presiding.
    Mr. Pombo. [presiding] We're going to call the hearing to 
order.
    I ask unanimous consent to allow members that are not on 
the full Committee--Mr. Skeen, Mr. Hayworth, and others had 
requested permission to participate in the hearing--I ask 
unanimous consent that they be allowed to sit on the dais 
without objection. I also ask unanimous consent that all 
members' opening statements being included in the record. The 
record will remain open to allow members who are not here at 
the beginning to enter their opening statements in the record 
in the correct proportion.

    STATEMENT OF HON. RICHARD W. POMBO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Pombo. The House Committee on Resources is holding this 
hearing today on the implementation of the Endangered Species 
Act in the southwestern United States. The avalanche of 
litigation in the region has created a great deal of confusion 
and hardship.
    I want to thank my colleagues from the States of New Mexico 
and Arizona for bringing this situation to the attention of the 
Committee. In enacting the Endangered Species Act, Congress 
sought to protect declining species from extinction. We believe 
that listing species would stop the intentional harming of 
those species by overhunting or intentionally destroying 
necessary and critical habitat. However, I believe that those 
who were serving in Congress when the ESA was enacted never 
foresaw the use of the ESA by radicals who use the ESA lawsuits 
to shut down entire communities and industries in the West.
    The ESA lawsuit process has been described as a blunt 
instrument that allows a very small group of people to impose 
their will on the majority whether they are right or wrong. The 
ESA lawsuit gives extraordinary power to a very small number of 
people. Those most personally affected by these lawsuits have 
been systematically deprived of their right to defend their 
livelihoods and property.
    Prior to the recent Supreme Court decision in Bennett v. 
Spear, only environmentalists could sue if they disagreed with 
a decision of the Federal agency under the ESA. The Justice 
Department and the Interior Department fought to keep private 
citizens out of the courthouse. The only reason that the 
Supreme Court finally resolved the standing issue in Bennett v. 
Spear was that private citizens were willing to fight all the 
way to the Supreme Court. And guess what? The Supreme Court 
agreed with Mr. Bennett and not the Justice Department that all 
our citizens have the right to protect their civil and economic 
rights in court.
    Now citizens who are personally affected by the extremists' 
lawsuits want to participate in these lawsuits as intervenors. 
It seems to me that allowing the most affected to intervene 
would ensure that the court has all the necessary facts to make 
a better and more accurate decision. The purpose of a trial is 
to get the truth. Excluding private citizens in State and local 
governments from ESA lawsuits deprives the court and the public 
of the truth. It results in one-sided lawsuits and may result 
in a severe injustice to thousand of affected people and their 
families.
    Settling these suits without the agreement of the 
intervenors deprives them of their right to a fair trial. It's 
time to ensure that the public has the opportunity for self-
government through a full and fair involvement in lawsuits, 
including the right to a fair trial. Anything less is not 
democracy.
    Mr. Farr, did you have an opening statement at this time?

 STATEMENT OF HON. SAM FARR, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF CALIFORNIA

    Mr. Farr. Thank you, Mr. Chairman.
    I would appreciate in this hearing discovering the real 
problems that exist regarding the ESA consultation process 
required in every change of ownership of land, or reuse of 
land, that is owned by the Federal Government. With all the 
military-base closures in the United States, we've had to go 
through that process repeatedly. I represent the largest base 
that has been closed, about 28,000 acres, and we went through 
the consultation process very effectively.
    It has also been used in fisheries area such as the 
northeast where they actually had to create some no-take zones 
because they overfished certain areas and they needed to allow 
them to regenerate.
    As members of this Committee and the Congress, we represent 
people. But we also represent all the other living things on 
the planet, particularly those living things in America. And we 
have a responsibility to maintain a balance between people and 
nature.
    My sense is that often times regulators don't realize that 
there has be a solution to a problem. There has to be an end, 
and I hope that we and the regulators can keep that in focus. 
On the other hand, those who are affected by regulations have 
to realize that the end product usually is trying to enhance 
the environmental management of property, to make it better 
than it has been historically. And I think that if we can find 
that consensus, we can, as Members of Congress, make good law 
and support a good process.
    I'm very supportive of the Endangered Species Act. I think 
it is good law. I think in carrying it out, people sometimes 
err on the side of caution, so we need to make sure that 
there's a sense of process here.
    So, Mr. Chairman, I appreciate your having the hearing. I 
look forward to the testimony.
    Mr. Pombo. Thank you.
    Are there any other opening statements at this time? Mr. 
Hansen.

STATEMENT OF HON. JAMES V. HANSEN, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    Mr. Hansen. Thank you, Mr. Chairman.
    I hope people realize the significance of this Act which 
passed in 1973. If you go back and you read what was said in 
the House and the Senate, it was a lot different as it was 
portrayed at that time than it has turned out to be.
    As you read about what was said, a lot of people said we're 
going to protect the grizzly bear, the bald eagle, things such 
as that, but I think it was never envisioned to go to the 
extent that it has. Just like the Wilderness Act, and Hubert 
Humphrey statement ``they'll probably be no more than 30 
million acres will ever go into wilderness.'' We're through 100 
million and going up.
    And so, this Act, in and of itself, does not have a cost-
benefit analysis to it. As you look at areas like Washington 
County in Utah, they've been expending a lot of money for HCP's 
for the desert tortoise. We can't come close to even coming up 
with the money to pay the people off--who we agreed to pay off, 
who have found the desert tortoise on their land. It has got to 
the point that it's almost ridiculous that we have police down 
there to make sure that they cross the road. I don't know what 
GS ratings these guys get, but they are there to make sure that 
happens. But then we find out from the best biologists around 
that the endangered species in Washington County is not really 
endangered, but it is endangered in California. And so, where 
it has respiratory diseases in California, it's very healthy in 
Utah, but we work on it. I have never seen anything as more of 
a subsidy with no end in sight. Somewhere there should be a 
cost-benefit analysis of what we get out of this thing.
    Take the squaw fish in the Colorado River. They're trying 
to now, both the State of Arizona and the State of Utah, now 
they want us to come up $120 million to make fish ladders for 
the squaw fish. Yet its cousin is in the Columbia River and in 
the Columbia River it is a predator. In the Colorado River, 
it's an endangered species. I mean isn't there some sense to 
this thing.
    It's much like the hearing that the chairman and I were at 
out in Reno, Nevada on Monday where the wild-and-free running 
horse is there. And instead of this beautiful thunderhead, and 
Flicka, and all that wonderful stuff you see in movies, they're 
dying of starvation. Now the people who run cows out in that 
area, if they go over one AUM, they're kicked off the ground. 
If they don't get off the ground when they're supposed to, 
there's a penalty on them. Yet they're well over the amount of 
wild horses that run. And so, they're starving to death. So a 
few people who have the emotion and not the science can feel 
that they're doing the right thing. That worries me a little 
bit.
    If I've seen a subsidy, it's the subsidy we're doing on the 
Endangered Species Act, and the subsidy we're doing on Wild 
Horse and Burro Act. And not to get off on that, but I would 
hope that we could attack this a piece at a time and bring this 
thing to some presence of reality. I guess in 1973 if I had 
been here, I would have probably voted for the Act.
    But let me end on this: One of our Speakers that I knew 
very well by the name of Thomas Foley, who is now the 
Ambassador to Japan, made a statement to me because I was 
working with him on another issue, he said ``I wished to hell I 
had never voted for the Endangered Species Act.''
    Thank you, Mr. Speaker.
    Mr. Pombo. Thank you.
    Any other opening statements?
    I'd like to call up the first panel, Mr. Jimmy Bason, Mr. 
Howard Hutchinson, Mr. Robert Wiygul, Mr. Michael Anable, and 
Dr. Robert Ohmart.
    I'd like to thank you for joining us today. Just to 
familiarize yourself, we limit the oral testimony to 5 minutes. 
You have a set of lights that are in front of you. Works 
similar to traffic lights; green means go; yellow means hurry 
up; and red means stop. Your entire written testimony will be 
included in the record, but if you could try to conclude your 
oral testimony in 5 minutes, the Committee would appreciate it.
    Mr. Bason, if you're prepared, you may begin.

STATEMENT OF JIMMY BASON, NEW MEXICO CATTLEGROWERS ASSOCIATION, 
                    ALBUQUERQUE, NEW MEXICO

    Mr. Bason. Mr. Chairman, members of the Committee, my name 
is Jimmy R. Bason and I live seven miles out in the suburbs of 
the little town of Hillsboro, New Mexico, which has a 
population of approximately 200 people. It is typical of the 
small, rural communities throughout the United States that you, 
the Federal Government, apparently are determined to eliminate.
    I'm here representing the New Mexico Cattlegrowers and 
personally own a Federal Government grazing permit allotment on 
the Gila National Forest next to my son's adjoining permit 
which have been in the family about 35 years.
    The Federal Government through its agent, Region 3, 
Southwest Region, and the news media, but not face-to-face has 
insinuated that ranchers don't want to change their ways and 
further insinuated that we're just one step above dinosaurs. I 
fully realize some of those representatives are in this same 
room.
    This is to use an old, unchanged word from these hallowed 
halls, complete ``balderdash.'' We are really on the cutting 
edge of change. We're constantly trying to improve ourselves 
and the resources that we live on. There's no reason for us to 
destroy that, but we're not on the cutting edge of unproven, 
and untested change that's based on theoretical changes 
designed to achieve some fanciful political goal.
    We stay current with the latest scientific methods through 
constant schools, lectures, quarterly meetings, and all the 
disciplines at every one of our meetings--extension courses, 
short courses, et cetera, et cetera. When the adversaries--and 
I use that word--determine they cannot win in actual facts, 
they completely change the rules on us. I compare this to 
challenging Michael Jordan, and I didn't say Michael Jackson--
Michael Jordan, not Michael Jackson--and the Chicago Bulls to a 
basketball game with a pickup team, and just as the tip-off 
ball is about to be thrown in front, I announce to Michael 
we've just changed the rules. And I'm going to be changing them 
as the game goes along. This is exactly what's happening to us 
in New Mexico, and I suspect the rest of the Nation.
    Every one in this room must understand that every Federal 
Government permittee and lessee sets down once a year, every 
year, and in conjunction with, and under the direction of the 
Federal Government, agrees to an annual operating plan which 
the Federal Government signs off on. There's no surprises under 
this.
    We are here today to discuss the citizens' suit provision 
of the Endangered Species Act and, specifically, the two joined 
suits, numbers 666 and 2562, which were scheduled in Federal 
court in Tucson, Arizona in April 1998, in which I attended for 
the New Mexico Cattlegrowers and the Gila Permittees 
Association. The adversaries have alleged again in the media 
that the ranchers were given all the chances to sign off on the 
agreement that the Federal Government and the two zealous 
environmental groups agreed to. This slick distortion of facts 
is very similar to my alluding to the Potomac out here as being 
similar to the Rio Grande. They're both rivers. There is a 
world of difference in knowing of a possible tentative 
agreement 5 days before court and actually having any input 
into that agreement. Not much need to have prisoner sign off on 
his own death sentence when his head is already on the chopping 
block and his hands are tied behind his back.
    Of course, we refused to join into the agreement. The judge 
himself saw the unjustness of this and refused to stipulate it 
in his court. Once again, the Citizen Group had sued and just 
before the actual science and facts could come up in court, the 
Federal Government rolled over and offered up their own 
operating plans; their own best practices; and their own 
trusting permittees on the altar of expediency.
    I want to enter an article out of the Albuquerque Journal 
on the third of August, 1997 into my testimony where it brags 
that lawyers fees are nothing because the Federal Government 
pays it. Mr. Chairman, please recognize that we're talking 
about individual families and communities that are being ruined 
forever. They are the direct result of the Federal Government's 
policies that you and your predecessors established right here 
in Washington, from the time that we were encouraged to settle 
these sparsely occupied lands to keep foreign governments at 
bay--such as France, Russia, Spain, England, and so on--right 
through building of our infrastructure, the roads, the towns so 
that all 270 million citizens can come enjoy what they see 
today.
    The Federal Government as a landlord must recognize that 
these aren't weekly renters out here or motel overnighters. 
They are the builders and the stayers of these rural areas. You 
can see their loyalty to the Federal Government in their 
improvements, and their flags, and all of their infrastructure, 
and their service to the coun-

try. And in no place more graphically illustrated than the 
noisy schools, or the new, and the silent cemeteries with 
generations of names for those passed on.
    In closing, I want to please remind you that you are the 
Federal Government and please accept that responsibility that 
you worked so hard to get elected to. I'm tired of people 
saying it was those guys. On my ranch for 40 years, there's 
been an individual named ``not me.'' I've never been able to 
find him, but he's constantly referred to whenever I ask ``who 
messed this up? Who tore this up?'' The answer is always ``not 
me.'' I've never found him. I'm overjoyed to finally be in here 
in front of ``they'' as in ``they said,'' ``they told us to do 
it.'' You are ``they.''
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Bason may be found at end of 
hearing.]
    Mr. Pombo. They're not here.
    [Laughter.]
    Mr. Bason. Yes, they are.
    [Laughter.]
    They serve on all the committees around here beside just 
this one.
    Mr. Pombo. Mr. Hutchinson.

STATEMENT OF HOWARD HUTCHINSON, COALITION OF ARIZONA/NEW MEXICO 
                 COUNTIES, GLENWOOD, NEW MEXICO

    Mr. Hutchinson. Thank you, Mr. Chairman, and members of the 
Committee.
    The legal strategies being employed by the environmental 
litigants have evolved over two decades. The examples being 
focused on by this hearing, CV 97666 and CV 972562, are only 
two cases in a succession of suits. The strategy focuses on 
land planning processes contained in the National Forest 
Management Act and the Federal Lands Management Policy Act.
    The assertion is that the land and resource management 
plans are action-forcing, therefore, subject to Section 7 
formal consultations under the Endangered Species Act. The 
Supreme Court addressed this issue on May 18 of this year. 
Their ruling was that forest plans are programmatic and not 
action forcing.
    The cases prior to 666/2562 were concluded with stipulated 
settlements. Attempts at intervention by other affected 
interests were opposed by both the Justice Department and the 
plaintiffs. Settlements were granted by the Federal judges 
before the issue of intervention status was determined on 
appeal.
    The results of these questionable settlements has been the 
slow but steady elimination of management activities on the 
National Forest and BLM lands. At the same time, when according 
to Dr. Garrett's report, cited in my written statement, these 
lands are in desperate need of restoration.
    The April 27, 1998 issue of High Country News reported on 
Chief Mike Dombeck's agenda, ``Aide Cris Wood says the fate of 
the schools would be better served separating their support 
from the rate at which trees are falling.'' By slowing 
decoupling communities from the 25 percent fund, we would like 
to see them less subject to the whims, and ups and downs of the 
Forest Service's timber management program. ``Over the short 
term,'' Wood says, ``we're trying to provide a measure of 
stability and predictability they haven't had through much of 
this decade.''
    Are we now to have a decoupling of communities from their 
ranching as well? The instability of the last decade referred 
to Mr. Wood was the direct result of ESA citizens' suit and 
stipulated settlements. The agenda of the executive branch 
seems to run parallel with that of the environmental litigants.
    The settlements have the appearance of friendly suit 
agreements. The question begs to be asked, ``is the 
administration's Justice Department providing a suitable 
defense for the land management agencies or facilitating 
implementation of a special interest's goals who share 
complementary or parallel agendas?''
    A great injustice is being inflicted on the rural residents 
of the southwest region. After nearly a century of livestock 
numbers' reductions, many on a voluntary basis, ecological 
conditions continue to decline. It should have become obvious 
to someone long ago that merely cutting numbers was not the 
solution.
    In the current round of environmental assessments for 
implementing the agreement reached in 666/2562, the records of 
decision issued following the disclosures will not lend to the 
Congressional purpose in the NEPA of ``encouraging productive 
and enjoyable harmony between man and his environment.'' The 
opposite will instead prevail.
    The livelihoods of the rural populations in the southwest 
region are being sacrificed on the altar of biocentricism with 
little assurance of created benefits for the environment or the 
biosphere.
    Congress should insist that the land management agencies 
adhere to their missions, and governing statutes, and quit 
making scapegoats of the commodity and amenity users for their 
mismanagement. Congress should also insist on the disclosure of 
impacts from settlements and insure that affected interests are 
assured standing in litigation. Further, Congress needs to 
investigate the implementation of the convention on 
biodiversity without Senate ratification and the Wildlands 
Project.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Hutchinson may be found at 
end of hearing.]
    Mr. Pombo. Thank you.
    Mr. Wiygul.

 STATEMENT OF ROBERT WIYGUL, EARTH JUSTICE LEGAL DEFENSE FUND, 
                        DENVER, COLORADO

    Mr. Wiygul. Representatives, thank you very much for having 
me here today.
    My name is Robert Wiygul. I'm an attorney with the Earth 
Justice Legal Defense Fund in Denver. I'm very familiar with 
the lawsuit that is one of the subjects of this hearing. It's 
called the Forest Guardians' lawsuit. I was the chief trial 
attorney in that lawsuit. I was also the chief negotiator on 
the settlement agreement that's been spoken about in the 
lawsuit.
    I'd like to give you my perspective on both that lawsuit 
and the settlement agreement that ended it. I think you may 
find that a significantly different perspective from what 
you've heard here today.
    First, let me say that that lawsuit primarily focused on 
what are called riparian areas; streams and stream corridors in 
the southwestern United States. The reason it focused primarily 
on those areas is because that 1 percent of the land base in 
the southwestern United States supports a huge assemblage of 
species that live in that area. Some estimates are as much as 
85 percent of the species that live in the southwestern United 
States are dependent upon those riparian areas, stream 
corridors, for their survival of the species.
    Now this particular lawsuit looked at those areas first and 
foremost. It focused on three species that use those areas and 
that depend on those areas for their survival. The southwestern 
willow flycatcher, which is a bird species, and two fish, the 
spikedace and the loach minnow. All of those creatures are 
dependent on healthy, riparian forests and streams for their 
survival. They are all protected under the Endangered Species 
Act, and by law they must be taken care of when Federal land 
management agencies are doing their planning.
    As we reviewed the situation in the desert southwest with 
respect to the Forest Service's grazing law, a couple of things 
became very clear. One is that in that region, the Forest 
Service had good aspirations to protection of riparian areas in 
their regional guidance; in their forest plans; in many of 
their operating agreements. They had standards in there which, 
if followed, it helped protect those areas; help protect their 
value as habitat for endangered and other species. It also 
became clear that in many cases those standards were not being 
met on the ground and that actions were not being taken to make 
those standards be met on the ground. That is the reason that 
this lawsuit was filed. It followed a significant number of 
discussions with the Forest Service about that situation.
    Now, when we went to Tucson, we prepared to try this case. 
We went with the intention of trying that case. As is very 
often the situation, for those of you who are trial lawyers or 
have been, the pendency of a hearing gives added currency to 
settlement discussions. That was the case there. Those 
discussions--let me be very clear about that--were not a 
rollover. Those discussions and that lawsuit were hard-fought, 
hard-nosed, and the Justice Department, who I consider to be 
colleagues in the bar, are worthy adversaries. They are not on 
the same side of the fence. They were not on the same side of 
the fence in that lawsuit when that agreement was negotiated. 
They were representing clients and they were fulfilling their 
obligations in that area. Other actions may well have to be 
taken to prevent further degradation of species' habitat in 
those areas.
    Now, it is also a fact that the intervenors in that lawsuit 
chose not to participate in the settlement discussions of that 
lawsuit. That is not a fact that I can change. It was a choice 
that they made. They also attempted to challenge the settlement 
agreement itself in its implementation in court, and that 
attempt was turned down by the judge in Tucson.
    I'd be happy to answer any further questions about this. I 
see I have a yellow light on, but that is the perspective that 
we have on this lawsuit. It was an arms-length settlement 
agreement which the intervenors did have the opportunity to 
participate in represented a settlement of claims that, 
obviously in our view, the Forest Service would have lost had 
we gone through with the hearing.
    Again, thank you very much for the opportunity to be here. 
I look forward to answering your questions after the other 
panelists have finished.
    [The prepared statement of Mr. Wiygul may be found at end 
of hearing.]
    Mr. Pombo. Thank you.
    Mr. Anable.

 STATEMENT OF MICHAEL ANABLE, DEPUTY STATE LAND COMMISSIONER, 
           ARIZONA LAND DEPARTMENT, PHOENIX, ARIZONA

    Mr. Anable. Thank you, Mr. Chairman, members of the 
Committee.
    My name is Michael Anable, the Deputy State Land 
Commissioner for the State of Arizona.
    I'd like to give a little different perspective on third-
party intervenor involvement in the citizens' suit. It's often 
where the Land Department finds itself.
    We've run across three different kinds of suits: suits 
where the third-party or the citizen is trying to force a 
deadline at his critical habitat; suits where they're trying to 
force consultation; or suits which allege harm. The department 
has tried to intervene in a great number of those cases, just 
like the cattlegrowers from New Mexico did in the case that was 
just discussed, and we found it to be very difficult to 
intervene. And I believe your opening comments, Mr. Chairman, 
were along the lines of where I want to come from which is we 
need to provide more ability for intervenors to have a say at 
the table.
    There's a great number of cases, which I cited in my 
written testimony, where I illustrate our struggles trying to 
intervene and the types of settlements that have happened 
before we can even get to the table and how egregious that's 
been. I think similar to the arguments you heard from Mr. 
Bason.
    The points that I really want to make are the 
recommendations for change in the future I think Congress and 
this Committee should consider. I think you might want to 
consider giving third parties a right of intervention stronger 
than they have now. Make it clear that if you are a party with 
a significant interest in land, such as the State Land 
Department, that you have a right to intervene and have your 
voice heard, and you have a right to participate, to the extent 
you can, in settlement.
    I think that a very practical problem with the current 
system is the sixty-day notice of intent to sue are only given 
to the agency that's being sued. Third parties must struggle to 
find out if there has been a suit filed that could affect their 
land. And, you know, an agency such as mine which is not large 
does have some attorneys that can go through the court records 
and try to keep up abreast of those, but as you know in the 
Ninth Circuit, it's just a playground for lawsuits and it's 
very difficult to keep track of that. I think that it would be 
fairly simple for Congress to require Federal agencies to post 
a summary--to file a summary in the Federal Register of sixty-
day notices they receive. Every third party, such as us, and 
cattlegrowers, and others would know where they can go look to 
find suits that are challenging them.
    I think that Congress should take a look at allowing 
certain types of activities to go forward during the 
consultation period. Our experience has been that almost every 
project is on hold during the pendency of consultation. And 
there is a great many projects that every one knows will have 
no affect, and yet they get stalled. And I think that there 
needs to some ability for common sense to be put forward.
    I think Congress might want to consider putting thresholds 
on the type of injunctive relief that can be given. There's 
many instances where broad injunctive relief is sought in these 
third-party--in these citizen lawsuits--that affect habitat 
that is, at most, marginally important to species. For example, 
in the Southwest Center versus the Forest Service lawsuit that 
we heard about, a great amount of that habitat was not occupied 
habitat; not suitable habitat, but potentially suitable 
habitat, but they still had to remove livestock from. And I 
think that the court needs to have the ability to weigh the 
relative importance of that habitat to the species versus the 
harm--the impact that it has on the landowner or the permittee 
in that case. Right now, there is only a presumption that the 
court act to err on the side of the species, and there's really 
no wane of that. I'm not arguing that we should allow 
activities in suitable habitat, or habitat where the animal 
exists. I'm saying that there needs to be some level of wane 
when its potential habitat. Stuff that may be useful if you 
change it.
    And the last thing I would argue for is that we might want 
to consider limiting the awards on attorney's fees. I know that 
seems laughable, but in essence in the Ninth Circuit in 
Arizona, I think the current situation has led to a cottage 
industry for filing lawsuits. These lawsuits are starting to 
look like Xeroxed copies that just have the species named in 
them, and they're all the same. There's one after another, and 
I don't think that's what Congress intended when they dreamed 
up the Endangered Species Act.
    That's all the comments I have. I thank you for the time.
    [The prepared statement of Mr. Anable may be found at end 
of hearing.]
    Mr. Pombo. Thank you.
    Mr. Ohmart.

  STATEMENT OF DR. ROBERT D. OHMART, CENTER FOR ENVIRONMENTAL 
       STUDIES, ARIZONA STATE UNIVERSITY, TEMPE, ARIZONA

    Dr. Ohmart. Good afternoon, ladies and gentlemen of the 
House Resources Committee. Thank you, Mr. Chairman, for 
inviting me to testify today. I want to acknowledge my 
Representative Shadegg, who serves on this Committee. I also 
see Mr. Hayworth is here.
    Even though I've been employed by Arizona State University 
for the past 28 years, my comments today are my own based on my 
education and experiences. They in no way represent those of 
the university.
    I've been working in riparian habitats throughout the 
southwest for the past 25 years. In 1993, the Governor of 
Arizona appointed about 35 scientists throughout Arizona and 
from all of the state agencies and private entities as well to 
examine and rank ecosystems in Arizona at a level of risk. EPA 
provided the funding and we on the Technical Committee worked 2 
years examining and ranking the risk level for all ecosystems 
within our state.
    We found that ecosystems at greatest risk in Arizona are 
wetlands, springs, and streams. Domestic livestock grazing 
being ubiquitous in the state of Arizona is one of the top 
three human stressors to these ecosystems.
    I would like to bring your attention to these photographs 
as these are repeat photographs.
    [Photographs.]
    The one on the right with all the cattle in the San Pedro 
River was taken June 1985 when this area was still in private 
ownership and being grazed by domestic livestock. Notice the 
width of the streams, the shallowness of the stream. Then in 
June 1995, 10 years later, but eight and a half years after 
domestic livestock were excluded from the San Pedro River, you 
can see the dramatic response of the riparian system, the value 
of wildlife habitat on the left eight and a half years after 
domestic livestock exclusion. I have many more of these types 
of repeat photographs as well.
    Many people ask me, why worry about riparian habitats? What 
is their importance to society, to us in the southwest? If 
southwestern civilization is to sustain itself, it must have 
clean, reliable sources of water. Our riparian systems are 
vital to our survival in the southwest. Without them, we simply 
cannot survive. When healthy, they help dissipate floods, clean 
our water supplies, and provide the greatest water yield 
through time. Healthy riparian areas also provide the highest 
water quality.
    These systems are also vital to the lion's share of 
wildlife in the southwest. For example, 75 to 85 percent of the 
wildlife in the southwest are obligate users to riparian 
systems. By this, I mean they have to have them to be able to 
survive. Another 15 to 20 percent of the wildlife use these 
habitats at some time or another throughout the annual cycle.
    How much riparian habitat is there? To give you some idea, 
I'll use the data from Arizona since they are the most accurate 
as far as I know for New Mexico and the southwest. There are 73 
million acres total acreage in the state of Arizona. There are 
260,000 acres of riparian habitat or floodplain habitat, about 
.4, four-tenths of 1 percent. They are minuscule, yet they are 
vital habitat to the greatest percentage of wildlife that live 
or exist in Arizona. They are vital to us as humans to survive 
in Arizona. So, though small in acreage, they're extremely 
important to our wildlife, and as a consequence as they 
degrade, more and more species are going to continue to go on 
the endangered species' list. More and more pressures are going 
to be imposed by the citizens of the west and the southwest.
    The most important ecological component for wildlife in 
these riparian systems is the cottonwood willow habitat that 
you see in this photograph on your left.
    [Photograph.]
    It is considered by the Nature Conservancy as the rarest, 
forest type in North America. With the above background 
information in front of us, I think we can now easily answer 
Chairman Young's question as to why has the U.S. Forest Service 
imposed new regulations on grazing on Federal lands in the 
area. U.S. Forest Service has not imposed any new regulations 
on Federal grazing permittees. It is only obeying the laws 
passed by Congress and beginning to better protect natural 
resources on public lands.
    Mr. Chairman, we have in the past borrowed and destroyed 
abundant riparian resources from future generations. Unless we 
start making management changes today, there will not be any 
riparian resources for future generations except for saltcedar. 
Starlings, english sparrows will be our most abundant wildlife.
    Thank you for allowing me to testify.
    [The prepared statement of Dr. Ohmart may be found at end 
of hearing.]
    Mr. Pombo. Thank you.
    Mr. Anable, you made the statement about potential habitat 
in your oral testimony. Could you expand upon that somewhat for 
the Committee what is meant by potential habitat?
    Mr. Anable. Mr. Chairman, members of the Committee, I 
believe in the general sense it's habitat that, given some 
future change in either management or growth of plant material, 
or some change, it will become, or has the potential to become, 
habitat for the species of concern. But it doesn't currently 
have all the attributes that it would need to provide that kind 
of habitat.
    Mr. Pombo. Are you saying that land is regulated because of 
its potential habitat for endangered species, not because 
there's endangered species there?
    Mr. Anable. Mr. Chairman, yes, definitely. That's quite 
common. There's three general categories. There's occupied 
habitat; suitable, but unoccupied; and then potential habitat. 
And in many instances, at least in my limited experience, the 
latter two categories are the lion's share of the type of land 
that we are placing restrictions on.
    Mr. Pombo. You're saying that the lion's share of the land 
that they are putting restrictions on is potential habitat?
    Mr. Anable. In the cases that I've been involved with, and 
I'll give you an example; the mexican spotted owl in northern 
Arizona. There was quite a bit of litigation involved with 
that. There was about a little over 3,000 acres of state land 
that was identified as suitable habitat--critical habitat until 
that got invalidated for the owl, but it was at best marginal 
habitat. It was Ponderosa Pine Forest which latter when the 
Fish Wildlife Service came out with their biological opinion, 
pretty much made it clear that, you know, had they done some 
science outside of the courtroom, they had probably never would 
have designated that as critical habitat. It at best was 
foraging habitat, you know, outside of for-nesting habitat. I 
say that in kind of a general sense. We do have some amount of 
suitable habitat for the owl, but by in-large it was potential 
unoccupied habitat, at best.
    Mr. Pombo. In order for it to qualify for as potential 
habitat, it historically would have been habitat at some point 
in the past? Did they have to show that, at some point, that it 
had been habitat?
    Mr. Anable. Mr. Chairman, I don't know. I think that is the 
intent that it was historically habitat that has been altered 
and with some change in management, it will come back. I don't 
know if there are examples where they purposely would want to 
manipulate habitat to recreate habitat that has been lost. You 
know, I guess there may be instances where they could do that, 
but I think there should be some historical reason to believe 
it used to be habitat.
    Mr. Pombo. Mr. Bason, in your testimony, you said that in 
regards to this specific lawsuit that you found out about it a 
few days before it was settled. Is that accurate?
    Mr. Bason. Yes, sir. We have a different take on it than 
Mr. Wiygul, and I'm going by our attorney, who is Karen Budd. 
She was notified. I think the hearing was scheduled on Tuesday, 
and she was notified about 6 days before there was a potential 
settlement agreement. She lives up in Wyoming. We live in New 
Mexico. Our individual permittees don't all live right next to 
a fax machine. We're scattered out. She tried to keep the 
cattlegrowers informed, our organization twice and the way that 
she had explained to us just on the phone, it was nothing that 
we could live with. So the fact that we had any input into that 
agreement is certainly not--that was a done deal when we were 
told sign off or that's it. We went to the same hearing that 
Mr. Wiygul went, and we spent 3 days just trying to get a 
temporary restraining order--not as he presents it to you--to 
keep them from implementing that agreement until we had time to 
have input in it. And the court ruled against us on that 
because it was not in front of the court. They had already 
settled outside of the court.
    They had a stipulated agreement, which he helped draw up 
dated the 14th of April. I have a copy of it here. The judge 
refused to stipulate or to sign it. So they did another one on 
the 16th of April, which is a lot more restrictive to the 
permittees. And by ``they,'' I mean the Federal Government and 
the two environmental groups.
    And that's our take on the thing. And also, our take from a 
couple of weeks before, talking to the Justice Department, 
which he says are his colleagues, they told us they thought 
they could win this suit. The Forest Service and the Justice 
Department thought they could win this suit. That's what they 
told us. We came prepared to help them do that and found out 
that we were out of the deal.
    Mr. Pombo. But before the 6-day time period, was there a 
request made to have you participate in a potential settlement?
    Mr. Bason. Not that I know of. If they asked our attorney 
before that time, she didn't have any knowledge of any 
specifics, because she called us at the time that she actually 
knew that there was a settlement agreement being proposed.
    I also might expand a little. The Forest Service was going 
to a lot of these affected permittees a month or two before and 
telling them that they might have to fence these riparian 
areas. So a lot of this was being talked about without us as an 
organization or an industry knowing about, although we were 
getting rumors from individual permittees.
    If an individual permittee would sign off and agree to 
that, either under coercion or what he thinks best or whatever, 
then he went out of the potential harm of the suit. That's what 
they did a lot of in Arizona. And a lot of the people affected 
thought that's the best way to do, and individually they got 
out of it.
    Mr. Pombo. My time has expired, but on the second round I 
would like to get back to this. Mr. Farr.
    Mr. Farr. Thank you, Mr. Chairman.
    We are talking only about public lands here, are we not? 
Not private lands?
    Mr. Bason. Are you addressing me, sir?
    Mr. Farr. It wasn't clear from your testimony. Is it just 
public lands?
    Mr. Wiygul. That's correct. This lawsuit just involved 
public lands on Forest Service managed areas.
    Mr. Farr. On the Forest Service managed areas, how much of 
the riparian corridor is grazed and would be subject to these 
consultations? What percentage of the lands available for 
grazing are actually being placed on restriction?
    Mr. Wiygul. The exact percentage I don't know, but it is on 
the order of the overall representation of riparian habitat in 
the land base, which is something around 1 percent, or in some 
cases, less than 1 percent.
    Mr. Farr. So it is riparian habitat or the grazing riparian 
habitat?
    Mr. Wiygul. Well, the riparian habitat on these leases or 
on these allotments----
    Mr. Farr. Is 1 percent.
    Mr. Wiygul. [continuing] rather would be roughly in the 
same proportion it is overall, that's correct.
    Mr. Farr. Well, I really appreciate your testimony, Mr. 
Bason. It was very eloquent. But it is still difficult for me 
to understand the issue. You have a lease on these lands that 
have the riparian habitat on it, and because of the 
restrictions, you cannot graze in that riparian habitat, and 
that is the problem?
    Mr. Bason. That is addressed to me, sir?
    Mr. Farr. Yes, sir.
    Mr. Bason. Yes, sir. In New Mexico and Arizona, the water 
is the key. The water is the key. You have to have water for 
your livestock. So 1 percent--and I won't challenge his 
figures, I don't know--but that small percent controls all of 
the allotment. So that's a favorite Forest Service tactic to 
tell you you can still graze, but you just can't graze where 
there is water, which controls the whole thing.
    Mr. Farr. No, I understand that where the water is, is 
where everything is.
    Mr. Bason. Yes, sir. And I'd like to make the point that 
there is only land there that homesteaders didn't take years 
ago. It's the land left over. And that's why the riparian areas 
are becoming so critical, because most of the good riparian 
areas have already been homesteaded by four generations before. 
They took the good stuff.
    Mr. Farr. Well, this is the problem. You have public land 
and there is a lot of pressure on it for competing interests, 
and the question is how do you balance that out. And the 
consultation process is usually the way you balance it out.
    I recognize there is a problem, because this is an area 
that government really hasn't dealt with before. It's 
relatively new, as Mr. Hansen pointed out, new law. On the 
other hand, the question I am asking is are there any State 
regulators involved in this, or is this just Federal 
regulators, Federal land?
    Mr. Bason. On the forest permits that we are talking about, 
this is just Federal land through the Forest Service, although 
water quality and things like that are controlled through State 
regulation.
    Mr. Farr. What is it specifically that is regulated that 
you don't like? Do you agree that the riparian corridor needs 
to be protected?
    Mr. Bason. I personally don't have a riparian. That is the 
other thing that is hard to say here, because these suits are 
so intermingled. We personally don't have endangered riparian 
area, although I represented our members in that case in 
Tucson, went to do that, but didn't get to.
    Mr. Farr. Well, I'm not so interested in the history of the 
case. I'm interested in trying to figure out what is the 
process here that is causing so much problem. Because if it's a 
management issue, that is, cattle needing water, you're grazing 
on public lands, and you're going to have to be subject to 
public protocols on use of that land just like you can put 
restrictions on your private land when you want somebody to 
lease on that land.
    Is there a way of working these things out so that there is 
a balance here? I think that's what it's all about. It's a 
balance. You know, in my area, I have some very limited cattle 
grazing. Most of it is working out wetlands issues on private 
lands. And what my landowners say is we recognize that these 
things need to be protected. We just want to talk with one 
regulator who will speak for everybody, because our problem is 
that there are too many overlapping regulators and you can't 
get a straight answer.
    Mr. Bason. Now you just put your finger exactly on our 
problem out there, too.
    Mr. Farr. Well, is that the problem? I mean, you may not 
like the answer because you may end up getting all the 
regulators to agree that this is what is the best management 
practice, and that may step on what you think. IIt's not 
private property. This is public property that you are leasing.
    Mr. Bason. Well, it affects our private property, too, 
because we are intermingled all throughout it. If you take away 
the grazing leases, then the private property becomes valuable 
only for subdivision, and our country is going to turn into a 
house trailer under every tree. That's what is happening.
    I have one allotment that is 88 square miles. I get to run 
150 cows year round. Everybody that knows the cattle business--
like Congressman Skeen is going to laugh at how stupid I am--
got 40 acres of deeded land in there. But that's what holds it 
by government policy for the commensurate property. Does that 
mean I quit, too?
    But what we say, if we have always cooperated with the 
Federal Government through the Forest Service, we have always 
cooperated. All of a sudden, in the last 2 or 3 years, they've 
become our adversaries. They are rolling over, and I still use 
that word, so that they can say we have done a great thing for 
this Endangered Species Act, and we can't cooperate with them 
when they don't say--they don't want our input, they just say 
here is the way it is, take it or leave it.
    But what you said about the different regulators, it does 
become a problem, because the Fish and Wildlife Service, 
Department of Interior, is really running the Forest Service 
Department of Ag.
    Mr. Farr. I think there is a solution here, but I am the 
last to suggest that the solution is getting more people into 
the courtroom.
    Mr. Bason. Yes, sir. Thank you.
    Mr. Pombo. Mr. Skeen.
    Mr. Skeen. Thank you, Mr. Chairman. I apologize for having 
to leave. We're appropriating today, as you know, and trying to 
get those bills out over there, so I had to go. I'm sorry I 
missed some of the hearings.
    I'd like to pose a question to Mr. Wiygul. I'm sorry I 
didn't hear his testimony. But the Southwest Center for 
Biodiversity and the Forest Guardians say that it was their 
lawsuit and the subsequent settlement agreement that forced the 
cattle off these allotments for the first time in years.
    Is that a correct statement?
    Mr. Wiygul. It is correct. The Forest Service had standards 
that they were not applying on these allotments to protect 
riparian areas, and as a result of that settlement of the 
lawsuit, those standards were applied, and in many cases those 
cattle got out of the riparian areas.
    Mr. Skeen. Were these standards prevalent when the original 
questions were answered between the grazers and the Forest 
Service, or is this something new?
    Mr. Wiygul. If I understand your question correctly, 
Representative, some of these standards have been in place 
since 1984 in the Regional Guidance for the Southwest Region of 
the Forest Service.
    Mr. Skeen. Why weren't they complied with before the 
recent----
    Mr. Wiygul. I believe that is a question that is going to 
have to go to the subsequent panel.
    Mr. Skeen. Well, that's a question I'd like to have 
answered. I am not looking for--the Justice and the Forest 
Service representatives say they are going to do this anyway, 
so the agreement was really not a big deal, not even a small 
deal, is that correct?
    Mr. Wiygul. Not to second guess my colleagues' 
characterization of the agreement, I think it was certainly an 
important step forward in protecting those riparian areas and 
in making sure that those standards, guidelines, and 
regulations that were on the books were actually enforced.
    And in that sense, I think it was a very important step 
forward in the protection of those areas.
    Mr. Skeen. Well, you've got two approaches inherent in the 
questions that I asked you. Which of the two statements are 
correct, and you can't have it both ways. When you were talking 
about doing this adjustment on riparian rights, was there ever 
any talk about alternative or diversification of water supply 
or water assets in this thing, like drilling a well, like 
putting a pipeline in, or putting a trough in someplace?
    Mr. Wiygul. Yes, it's my understanding that in many of 
these cases, they are looking at developing water in places 
away from riparian areas.
    Mr. Skeen. Then what's the big deal on riparian rights?
    Mr. Wiygul. I'm sorry, sir?
    Mr. Skeen. Then what's the big deal on riparian rights?
    Mr. Wiygul. Well, the big deal there was that you had 
cattle degrading these areas.
    Mr. Skeen. Well, when they don't have a water tub to drink 
out of, they'll go drink out of the river. If you pump it out 
of the----
    Mr. Wiygul. That is indisputably the nature of cattle.
    Mr. Skeen. Yes, it certainly is. And human beings and 
everybody else. I just wonder why all of a sudden we've got 
riparian rights, when for several decades or more, that was no 
big deal? And all of a sudden, we're going to espouse riparian 
rights and that means take the cattle off.
    Mr. Wiygul. I would say that for a couple of decades it was 
a big deal; it was just ignored.
    Mr. Skeen. Well, that's very interesting. I will save the 
questions for further down the line, Mr. Chairman.
    Mr. Pombo. Mr. Faleomavaega.
    Mr. Faleomavaega. Thank you, Mr. Chairman. In going through 
some of the testimony--and certainly I wanted to thank the 
members of the panel for their testimony before the Committee 
this afternoon. I think taking as a followup on what the 
gentleman from New Mexico was trying to get from you gentleman 
is the fact that obviously just under provisions of the 
Endangered Species Act, just out of the 9th Circuit alone, some 
262 cases have been filed.
    Is this a reflection because the law is bad, or is it 
because of some policies considered here that we haven't done 
on our part in the Congress to establish the kind of law that 
we don't end up in court? Anybody that would like to answer.
    Mr. Wiygul. I'm sorry, go ahead, Howard.
    Mr. Hutchinson. Mr. Chairman and Representative, I think 
that the number of cases actually does stem from mismanagement, 
and many of the land users there are in concurrence with the 
environmental proponents that this has been occurring. And 
there have been suggestions of alternative methods for 
addressing these problems.
    However, the quagmire that we are in right now does not 
allow for anything but the court adjudicated settlements being 
the management prescribed. So we get this essentially one-size-
fits-all solution that is then generically assigned to 
everywhere. We are not allowed to adapt our managements and go 
forward.
    There are a number of ranchers and other land users who are 
approaching riparian use and it is really a matter of timing 
and intensity, versus total removal, if you are going to keep 
livestock on the range.
    Mr. Faleomavaega. Mr. Wiygul.
    Mr. Wiygul. Well, I think Mr. Hutchinson and I did find 
something that we could agree on there. I think the number of 
Endangered Species Act actions you've seen in this region of 
the country is a reflection of some specific factor, including, 
unfortunately, a long history of not addressing Endangered 
Species Act issues or complying with the Act itself.
    Where I come from, they say you fish where the fish are. I 
think in this case, the Southwest region, unfortunately was one 
of the places in which the Endangered Species Act has not been 
honored, or had been honored more in the breech than the 
observance.
    Mr. Faleomavaega. You don't consider the Federal agencies 
responsible for enforcement of the Act to the extent that they 
are doing their job according to the provisions of the ESA? 
Here's my problem. You've got a spotted owl. How many spotted 
owls do we have in the Northwest region, and how many acres 
does it take for a spotted owl to survive?
    Mr. Wiygul. I'm sorry, you're asking me that question? You 
don't have very many spotted owls left.
    Mr. Faleomavaega. Well, maybe the Mexican spotted owl or 
the pygmy owl. I think I just wanted to relate to what Mr. 
Bason is trying to say here. The gentleman has got heads of 
cattle; he is given the right to graze. But to protect the 
minnow, those little fish--and I am not very familiar with the 
minnows that exist in the rivers. Is this more important than 
that a gentleman like Mr. Bason has been given a right to graze 
his cattle?
    Mr. Wiygul. Yes, I think there are two separate questions 
that are raised there, Representative. First is that yes, in 
the judgment of the people of the United States who strongly 
support and continue to support the Endangered Species Act, 
protection of species, including minnows, protection of that 
whole complex of biological diversity that is represented by 
endangered species, is critically important.
    Now, nobody wants to put anybody out of business, knock 
anybody out of a living or anything like that. But where those 
things run into irreversible conflict, yes, you do have to act 
to protect those species that are part of the public trust, 
that belong to the citizens of the United States.
    My second point is that grazing on public lands is a 
privilege which is subject to regulation by the landowner, 
which is the Federal Government, which acts on behalf of the 
people of the United States, and regulation to protect other 
resources is appropriate in that situation.
    Mr. Faleomavaega. Well, I think the problem that we have 
here, we have NEPA, we have FLPMA, we have EPA, we have ESA, we 
have Clean Water Act, Clean Air Act, I think with all good and 
sincere intentions. But now we end up with 232 lawsuits. To me, 
that gives me a clear indication that something is wrong here, 
either the agencies responsible for the enforcement of the law, 
or maybe we here in the Congress have not done our part in 
specifying or providing for the appropriate language so that 
the law could be properly administered or enforced.
    And I just wanted to share that concern with you gentlemen. 
Hopefully, I suppose we are all looking for the balance. How 
can we strike a balance between the minnows and Mr. Bason and 
his grazing cattle and among others who sincerely are trying to 
make a living providing for the consumption demands of the 
American public?
    I don't know if we consume minnows, but I just wanted to 
see what are we going to do in trying to strike a balance in 
this. I just wanted to share that concern with you gentlemen.
    Thank you, Mr. Chairman. My time is up.
    Mr. Pombo. Mr. Hayworth.
    Mr. Hayworth. Thank you, Mr. Chairman. I'd like to thank 
members of the panel, especially my friends and fellow 
Arizonans who are here today.
    Mr. Bason, I am with you. I don't like to hear about that 
fellow named ``Not Me.'' Mr. Hutchinson, I appreciate your 
comments. I think, based on my own personal observation, I 
think I would cease characterizing some of these groups as 
``environmental.'' I think, sadly, what we have seen now is the 
rise of a form of legal action that really comes under the 
heading, the new prohibitionists.
    Contrary to the protestations we have just heard from Mr. 
Wiygul, the perception of many ranchers in Arizona and really 
throughout the Southwest is that people are bound and 
determined to put them out of business. And, in fact, we have 
now the rise of the new prohibitionists, made manifest here by 
some of the comments and the delving into ``legal mechanics'' 
about lawsuits and the micromanagement of what transpires in 
court and legal tactics.
    Mr. Wiygul, how many lawsuits have been filed by you 
personally or by the organizations you represent?
    Mr. Wiygul. Are you talking about----
    Mr. Hayworth. I am asking how many lawsuits like these, 
dealing with endangered species and dealing with riparian 
areas. How many lawsuits have you filed in this area, sir?
    Mr. Wiygul. In the desert Southwest?
    Mr. Hayworth. Yes, sir.
    Mr. Wiygul. One.
    Mr. Hayworth. OK. How many lawsuits in general dealing with 
the ESA and cattle ranching have been filed?
    Mr. Wiygul. My estimate in the desert Southwest would be, 
I'm sure, 50 to 100.
    Mr. Hayworth. Who pays the legal bills of your 
organization?
    Mr. Wiygul. In the case of the Earth Justice Legal Defense 
Fund, the folks that I represent, about roughly 80 percent of 
that is paid by donations from individuals. I would say down to 
12 percent from foundations, I think about 2 percent from 
court-awarded attorneys' fees, and the rest from miscellaneous 
sources.
    Mr. Hayworth. Does the Federal Government pay any part of 
that?
    Mr. Wiygul. To the extent that any attorneys' fees or costs 
are awarded under the Endangered Species Act, those come from 
the Federal Treasury, yes.
    Mr. Hayworth. I've heard a lot of people talk about balance 
in this room, and I think that a lot of people would like to 
see some balance.
    Let me turn to Dr. Ohmart. Thank you for coming, sir. Let 
me turn to your photographic evidence you offer here. Could you 
offer a little more detail on these two pictures. Are they from 
the exact same location years later, or are they downstream?
    Dr. Ohmart. The photograph taken on the right was taken by 
an employee of Arizona Game and Fish Department on the San 
Pedro River. The photograph taken on the left, the one with 
green trees in it, was taken June 1995 by an employee of mine 
who I requested to go out to take the photograph on the right 
to try to find that same spot with a picture of domestic 
livestock, if possible. This is eight and a half years after.
    But our data on the Colorado River show a mean growth rate 
of cottonwoods of ten vertical feet a year. If you assume the 
San Pedro is colder, the growing season is shorter, so if we 
say, OK, let's assume six vertical feet a year, 8 years of 
exclusion, you've 48 feet.
    Mr. Hayworth. But to your best knowledge, that was taken 
from the exact same vantage point from the bridge?
    Dr. Ohmart. It's the exact same vantage point. I have been 
there myself two or three times.
    Mr. Hayworth. I think a subsequent panel will show some 
interesting photographic evidence as well. Dr. Ohmart, compared 
to the late 1800's, early 1900's, roughly a century ago, how 
many cattle do you now believe are grazing in the Southwest, 
specifically Arizona and New Mexico?
    Dr. Ohmart. I don't have the exact numbers. If one goes 
back to the historical literature, they estimated in the 
1890's, that there was as high as a million to 1.5 million head 
of domestic livestock grazing in Arizona. Of course, in the 
drought of 1893, it was reported that 30 to 70 percent of those 
animals died. Today, I am sure there is a lot less than that, 
but I don't have the exact number.
    Mr. Hayworth. According to the figures that I have, you had 
about 1.5 million head in Arizona 100 years ago, about 2 
million head in New Mexico. So 3.5 million head of cattle. Now 
there is about 15 percent of that, according to my math, about 
415,000 total.
    If that's the case, why do we pin all the destruction on 
the cattle? If the numbers are decreasing, why would we say 
there is such subsequent destruction of riparian areas, if 
there are fewer head of cattle?
    Dr. Ohmart. I think if one looks at the data sets that we 
looked at going through the Governor's technical committee, 
there are many stressors to riparian habitats. The three to 
stressors in the State of Arizona are--one of them is domestic 
livestock grazing, because it is ubiquitous. Another is water 
management activities, dams, reservoirs, riprapping, this type 
of thing. A third one is ground water pumping.
    Now, domestic livestock, I think when their numbers were 
really high in the late 1800's, had a tremendous impact on 
riparian habitats. Their numbers died off because of drought. 
Then we had very wet years there. In fact, in 1905, the Salton 
Sink became the Salton Sea because of flooding in the Colorado 
River. We had very wet years. We had good productivity. Cattle 
numbers came back, maybe in fewer numbers than what they were 
prior to the heavy grazing in the late 1800's.
    But one of the problems is that once you put cattle out 
there in an allotment and you don't have any kind of management 
plan or any way to regulate or move those animals, they all go 
to the riparian areas. Their ancestral stock was old-world 
riparian livestock. So the minute we brought them here to the 
West, they went to the riparian areas.
    And you'd have to be a fool out there in Arizona, as you 
and I know very well, when it gets 110 to 115 degrees, if I'm 
out there in an allotment, I'm going to be in the riparian 
area. That's where the food is, that's where the water is, 
that's where the shade is.
    So they concentrate there throughout the growing season. 
The riparian areas never have an opportunity to store energy, 
grow, set seed, and do their thing. So we have this basic 
problem of the animals staying concentrated there and not 
getting out unless someone takes and moves them out by 
horseback or whatever.
    Mr. Hayworth. I see my time is up. I thank you, Mr. 
Chairman.
    Mr. Pombo. Mr. Underwood.
    Mr. Underwood. Thank you, Mr. Chairman.
    Given the inordinate number of lawsuits that all this 
contentiousness has generated, ultimately, I think, for most of 
us here, the members of the Resources Committee, we are really 
trying to find lessons in terms of suggestions for legislation. 
And it is very easy, in the course of these hearings, to, in a 
sense, almost have stereotypic views of what's going on.
    You have people who are utilizing public lands and who are 
sometimes characterized as exploiters of the public trust, 
people who are not mindful of the value of the public lands for 
the public in general. You have strong environmentalists, 
activism. I have had some personal experience with that, which 
I think people come in and are very active and file lawsuits 
and absolutely do not consult anybody in the local community. 
They may have one or two people active in the local community 
and the community in general may feel one way, but the activism 
goes on regardless.
    And we also have the issue of how this is being dealt with 
by the Federal agencies and perhaps there is some defect in the 
legislation itself. I think I would go back to my friend from 
American Samoa's comment in trying to figure out if there's 
some kind of lesson that we can learn from this. Is it 
inevitable that we will continue to attempt to resolve these 
issues through the courts?
    I know that we will not get anyone to acknowledge that the 
environmentalists have gone haywire and will file any kind of 
lawsuit at the drop of the hat to foist their nefarious agenda 
at every turn. I don't think we'll get them to acknowledge 
that, and we're certainly not going to get the people who graze 
cattle to acknowledge that they are somehow rapacious in their 
attitudes toward the public lands which, in fact, sustain their 
livelihood.
    So, given that, are we left to blame mismanagers, 
mismanagement in the Federal agencies. Had they conducted their 
business in some other way or had the law been more specific in 
the manner in which they conduct their business, that much of 
this contentiousness could be avoided? Could some of this be 
mitigated or is there just something that--I guess the 
characterization I get from the cattle grazers is that 
everything was moving along relatively well until the Federal 
agencies all of a sudden became very difficult to deal with for 
some unknown reason. And then the unknown reason, I guess, is 
spurred to action by court action by environmentalist groups.
    So what I would like to hear is, is there any element along 
this process, is there anything that can be done for improving 
or revamping the legislation or the consultation process, or 
moving the process a little bit downward in terms of local 
decisionmaking, so that this kind of--well, maybe the intent of 
the Endangered Species Act is to keep attorneys like Mr. Wiygul 
employed forever, I don't know.
    But is there some way that some suggestion can be made 
regarding a kind of a summative view of this? I would be happy 
to hear from Mr. Bason and Mr. Hutchinson and Mr. Wiygul on 
this.
    Mr. Bason. Well, I'll respond at first. The Endangered 
Species Act is fatally flawed. This is from the bar at 
Hillsboro. We are experts there at everything. If you want to 
know about Iran or whatever, we know everything in Hillsboro. 
It is fatally flawed because only the human species has the 
gall to think that we can freeze time. We all think in our 
lifespan we are going to freeze time. This species, it is going 
to be there, it is going to get more.
    The way I was taught in school, all species run their 
course and new ones come on. If we are going to freeze time for 
every one of these species we have out here, including putting 
the grizzly back in New Mexico--we're going to do that too--
what about the new species that are trying to come along that 
have adapted to 270 million people. I use as an example the 
peregrine falcon in New York that is eating the pigeons and 
living a great life; it has adapted.
    Under the way this law is set up, we are going to freeze 
time. We are smart enough in this room to say we are going to 
freeze everything where it is. And we can't do it. The way I 
was raised and the way I work, if you get stuck in the mud, you 
get out. If the roof leaks, you fix it. You cannot freeze time. 
But we all want to under this Endangered Species Act.
    There is nobody loves animals and insects and birds more 
than the people out on the land. We can tell you all about them 
and have names for them. But until we actually go back and 
touch the Endangered Species Act and make it more practical, 
you are going to have this constant fight where you are 
expecting the individual landowners--and you can talk about 
public lands all you want, but the individual landowner out 
there is who's keeping the waters up, who's keeping the salt 
and the minerals and everything out for all these endangered 
species--you are going to force him out of business.
    And what is going to happen? Somebody needs to take a long 
look at this. You cannot freeze time. As we sit here right now, 
people are making babies in the United States. We have to 
acknowledge the facts. So I feel strongly that you have to go 
back to the Endangered Species Act and make it into a 
practical, working law. And that's my----
    Mr. Underwood. I'll ask you your comments on Iran later.
    Mr. Bason. OK.
    [Laughter.]
    Mr. Underwood. Mr. Hutchinson.
    Mr. Hutchinson. Mr. Chairman and Representative Underwood, 
I think there are some solutions, and I think the construction 
of the Act just as it is right now provides many of those 
solutions. Unfortunately, people are not given the opportunity 
or access to those resolutions.
    Under section 7 of the Endangered Species Act, when an 
agency does go to that formal consultation level, a permittee 
is given access to that description of an alternative for a 
prudent measure to take care of that species. Now, that's 
supposed to take place.
    And as an applicant--and that's the language in the Act--as 
an applicant, he is supposed to be at the table during that 
section 7 consultation taking a look at the biological 
information about the species, its habitat, and its needs; and 
then being able to say, well, gee, we can take care of that, we 
can do this in our management scheme, and coming up with 
alternatives.
    However, that does not lend to a one-size-fits-all decision 
that comes out of a Federal court. And the judge is not going 
to spend the time to individually go through every single 
allotment alleged to be out of compliance and do that type of 
consultation process. And it certainly can't be expected of the 
Federal courts that are already overburdened with that.
    But what I am saying is the processes are out there. The 
Federal agencies are not allowing those to take place, and 
certainly, the litigation is an obstacle for implementation of 
those processes.
    Mr. Underwood. If the chairman will allow.
    Mr. Pombo. Go ahead.
    Mr. Wiygul. I'll try to be as brief as I can, although, 
Representative, let me say initially that if I had counted on 
the Endangered Species Act to keep employed, I'd be a lot 
skinnier than I am right now.
    I think that there are two really important points to get 
across here. One is that I think the best way to prevent 
litigation under the Endangered Species Act to prevent what 
have been called train wrecks in some other context is to make 
sure that that Act is complied with on the front end of the 
Federal lands management process and not on the back end.
    The reason we found ourselves in a lawsuit like the Forest 
Guardians lawsuit that's been talked about here was because we 
had biological proof which was very sound and which I felt very 
comfortable going into court with that continued grazing in 
those species' habitats and in riparian areas was going to push 
them toward the brink of extinction.
    If that had been addressed earlier, I don't think we would 
have found ourselves in that situation.
    Now, I was taught that the best way to be respectful to 
folks is to tell them what you think is the truth. So I am 
going to air a perhaps unpopular opinion in this room, which is 
that I think the Endangered Species Act works well now and has 
flexibility built into it right now. That has been my 
experience as an attorney and as a litigator. There is a great 
deal of agency discretion in the administration that is built 
into it, and I do not believe that weakening any of the 
protections of the Act is called for, for any reason. The best 
way to deal with the litigation under the Endangered Species 
Act is to enforce it up front.
    Mr. Underwood. Thank you very much for those responses. If 
I will, Mr. Chairman, my only experience with the Endangered 
Species Act and its application has been an unhappy one. To 
some extent, your comments regarding the fact that it should be 
enforced up front, and going back to Mr. Hutchinson's comments 
about the consultative end of it, in our particular experience, 
we felt very strongly that a course of action had been decided 
in advance and then consultation then occurs. And that somehow 
or other, we were always missing the timelines and that there 
was something procedurally that always seemed to be amiss. And 
it seemed like, you know, some people were in the know; and the 
rest, who were directly affected, were not in the know.
    And that may call for some legislative fix, but certainly 
it is not meant--none of these comments that I personally make 
are to be described as out of sync with the intent of the 
Endangered Species Act, but certainly the way in which it has 
been applied and the lack of consultation. It is abominable. In 
almost every instance that I have had to deal with, with the 
application of this law, it seemed like we were always out of 
sync with the processes and that a decision, in fact, had been 
made prior to consultation, and consultation was simply a pro 
forma process to prove that they had obeyed it. Thank you.
    Mr. Pombo. Mrs. Chenoweth.
    Mrs. Chenoweth. Thank you, Mr. Chairman. I do have some 
questions.
    I wanted to ask Dr. Ohmart, the pictures that you show here 
are very interesting. Once again for the record, are they taken 
from exactly the same place because the angles are different, I 
know that. But are they taken from exactly the same place?
    Dr. Ohmart. Yes, ma'am. They are taken exactly from the 
same place. I didn't take either photo, but I have been there, 
I have checked it out and they are definitely repeat 
photographs 10 years apart, but only eight and a half years of 
exclusion.
    Mrs. Chenoweth. It appears, Doctor, that the photo that was 
taken eight and a half years later was taken in the springtime 
judging from----
    Dr. Ohmart. They were both taken in June, one in June 1985, 
this one in June 1995.
    Mrs. Chenoweth. OK. The reason I question is that there are 
power lines going through the photo eight and a half years 
later.
    Dr. Ohmart. Right. Two things have changed in the 
photograph on the left. One is a new power line went in, two is 
over the past 20 years, the mean base flow of the San Pedro 
River has declined because of ground water pumping. So it's not 
the river it was 20 years ago as far as----
    Mrs. Chenoweth. Declined because of ground water----
    Dr. Ohmart. Ground water pumping.
    Mrs. Chenoweth. [continuing] for the metropolitan areas.
    Dr. Ohmart. For Ft. Huachuca and for Sierra Vista in 
southern Arizona.
    Mrs. Chenoweth. I see. OK, Doctor, thank you.
    Mr. Wiygul, I wanted to try to understand this whole thing 
a little bit better with the stipulated lawsuit, because part 
of the rea-

son for this hearing is the implementation of the Endangered 
Species Act.
    Let me get this straight. In 1997, two lawsuits were filed 
by citizen groups because they said there was a failure on the 
part of the Forest Service to employ proper consultation, that 
is, site-specific consultation. And then the lawsuits were 
joined, right?
    Mr. Wiygul. Yes, ma'am, the lawsuits were joined. There 
were more claims than the consultation claim.
    Mrs. Chenoweth. Now, it was recognized by everyone--the 
court, you, everyone--that the site-specific consultation would 
be finished by July 1998, right?
    Mr. Wiygul. There are two points there. At the time those 
lawsuits were filed, actually, a broader consultation on the 
entire region had never been completed, completed after the 
suits were filed.
    Mrs. Chenoweth. But it was----
    Mr. Wiygul. The Forest Service was--I'm sorry.
    Mrs. Chenoweth. The fact was made known to all of the 
litigants that site-specific consultations were going on at the 
time that the suits were joined and that they would be 
completed by July 1998.
    Mr. Wiygul. At the time those suits were filed, no, I don't 
believe that was available. That happened after the suits were 
filed and after regional consultation.
    Mrs. Chenoweth. So there was a hearing in April 1998 
requesting a preliminary injunction.
    Mr. Wiygul. Yes, ma'am.
    Mrs. Chenoweth. So, in April you requested the preliminary 
injunction enjoining grazing on the affected allotment, and 
that was 2 months before.
    Mr. Wiygul. In riparian areas, yes.
    Mrs. Chenoweth. OK, 2 months before.
    Mr. Wiygul. I think it's important to remember, 
Representative Chenoweth, that the goal of finishing site-
specific consultations on these allotments on the part of the 
Forest Service and the Fish and Wildlife Service was explicitly 
phrased in hortatory and aspirational terms. And if they had 
not made that date, there was no reason they couldn't continue 
consulting as long as they wanted.
    Mrs. Chenoweth. Of course, they didn't have a chance to 
make the date, did they, because you entered into a stipulated 
agreement without the cattlemen and the judge would not agree, 
correct? Because the cattlemen were not part of the stipulated 
agreement. And then you entered into a settlement agreement 
which doesn't take the court's agreement.
    So then the judge went on to say that the fact that the 
agreement actually--I mean, the judge actually said that the 
agreement exceeded the requirements of the ESA, but he had to 
decide that that didn't violate the ESA.
    Mr. Wiygul. With due respect, ma'am, I'd have to say that 
the judge did not say that it exceeded the requirements of the 
Endangered Species Act. He said even if it did, that's not 
necessarily against the law. And he said that in the context of 
rejecting a request to block the implementation of that 
settlement agreement.
    The intervenors, the folks in the Cattle Growers 
Association, had the opportunity to go ahead and ask for an 
injunction or appeal that order, and they chose not to take 
that opportunity.
    Mrs. Chenoweth. And this was a hearing on the settlement 
and the judge--we are both talking about the hearing on the 
settlement.
    Mr. Wiygul. Yes, ma'am.
    Mrs. Chenoweth. And the settlement agreement. And the judge 
wrote, and I quote, the fact that the agreement may exceed the 
requirements of the ESA does not mean it violates the ESA, end 
quote. That is correct, right?
    Mr. Wiygul. Right. He said it may exceed the requirements.
    Mrs. Chenoweth. OK. There was a question asked earlier 
about attorneys' fees. And isn't it true that there has been 
101 cases filed under the ESA in the last 10 years, and that 
the attorneys' fees that have been awarded range all the way 
from $1,000 to $3,500,000?
    Mr. Wiygul. I don't know if the number--I assume there have 
been at least that many cases, and the range of attorneys' fees 
sounds about correct. I think it's important to put that number 
in context. That $3.5 million is about what, say, three 
partners at Skadden, Arps, Slate, Meagher and Flom made in the 
course of the past year.
    The amount that is awarded in attorneys' fees under the 
Endangered Species Act is not anywhere close to what the 
private bar gets for doing cases of similar complexity.
    Mrs. Chenoweth. Well, $3.5 million for one of the cases is 
pretty good fees.
    Mr. Wiygul. It's a lot for three folks in a private law 
firm to make, too.
    Mrs. Chenoweth. Thank you very much.
    Mr. Wiygul. Thank you.
    Mr. Pombo. Mr. Shadegg.
    Mr. Shadegg. Thank you, Mr. Chairman.
    Mr. Wiygul, let me just go back, because I want to clarify 
this and I am a little confused. My understanding is that in 
1996 and 1997, the Forest Service did engage in consultation on 
the regionwide plan, that is, the overall plan. That's correct, 
is it not?
    Mr. Wiygul. That is, I believe, correct, yes.
    Mr. Shadegg. And then the issue was that there had not been 
consultation on each of the individual allotments, is that 
right?
    Mr. Wiygul. That was one of the issues in the lawsuit. At 
the time the lawsuit was filed, the regional consultation had 
not been completed. It was right about that same time, if I'm 
not mistaken.
    Mr. Shadegg. Well, on that point, both the Justice 
Department and the Forest Service contradict you. Both of them 
in written testimony, written statements submitted to us, say 
that the regionwide consultation had been completed.
    Mr. Wiygul. As of what date?
    Mr. Shadegg. As of December 1997.
    Mr. Wiygul. Right. I think the suit was filed, maybe a week 
or something before that.
    Mr. Shadegg. OK.
    Mr. Wiygul. I'm not sure that the discrepancy in dates here 
is significant.
    Mr. Shadegg. OK. So you are saying for 1996 and 1997, the 
regionwide consultation had been going on, there had been an 
overall discussion. Just before the end of that, you file your 
lawsuit, and at that time allege that there had not been the 
site-specific consultation.
    Mr. Wiygul. Right. We didn't know it was just before the 
end of that process, which had been going on for something 
approaching----
    Mr. Shadegg. Two years.
    Mr. Wiygul. I guess, 18 months, 2 years at that point. The 
other point that I think is worth making is that the other 
claims in that lawsuit were not only did consultation not take 
place, but that the practices of continuing to graze in many of 
these riparian areas were resulting in substantive, if you 
will, violations of the Endangered Species Act by pushing these 
species toward extinction.
    Mr. Shadegg. Yes, and that's fair. Let me just go back for 
a minute. This is technical, and I want to just stay on it for 
a minute and then get onto some broader issues. But isn't there 
a problem with the Endangered Species Act in that the minute a 
species is listed, there can not have been consultation unless 
you knew it ahead of time, and yet there can be an injunction 
immediately. You can stop the use of the land and there is no 
waiting period, no time period during which, once a species is 
listed, you can continue to use the land while you conduct the 
consultation. And isn't that an inherent problem raised by your 
lawsuit with the Act that ought to be fixed?
    Mr. Wiygul. I don't think that's raised by this lawsuit, 
because these species have been listed for some time now. I 
think the point that an injunction would automatically be 
issued on that, I think you'd still have to prove the things 
one would ordinarily have to prove in that context to make that 
happen. So I think that, in my view, there is enough discretion 
in the courts there to prevent any kind of----
    Mr. Shadegg. You are not confident you'd get the injunction 
the day the species was listed, that's all you're saying?
    Mr. Wiygul. I'm not very confident about that, 
Representative.
    Mr. Shadegg. OK. Let me turn to a broader scope of issues, 
and let me begin by thanking all the members of the panel, and 
again, as my colleague, Mr. Hayworth did, thanking particularly 
the Arizonans for coming. I appreciate your being here.
    I want to ask particularly Mr. Wiygul and Dr. Ohmart if you 
think that the proper goal should be to ban all grazing in the 
southwestern United States because of the nature of the 
southwestern United States and the nature of grazing. My time 
is short, if you could answer that fairly quickly.
    Mr. Wiygul. Sure. I will answer briefly and let Dr. Ohmart 
say that. I don't speak for any organization on this. To the 
extent that livestock grazing can take place in a manner that's 
compatible with protection of other resources in the law, than 
it's something that could be considered as a use of public 
lands.
    Mr. Shadegg. So you are not generically against all 
grazing. If it can be done in a way that protects species, 
that's OK with you.
    Mr. Wiygul. I keep an open mind on things.
    Mr. Shadegg. Dr. Ohmart, where are you?
    Dr. Ohmart. I have always maintained that domestic 
livestock grazing should occur on public lands as long as it is 
not creating resource damage or, for example, in these 
particular streams, we've got species of fish and species of 
birds that are in dire trouble. And there, I think the only way 
we are going to help them is by total exclusion.
    Mr. Shadegg. Mr. Hutchinson said that it was a question of 
timing and intensity, rather than total removal. Do you agree 
with that?
    Dr. Ohmart. I have looked at this issue a number of times 
and have data from the field on it. And we took a stream, Date 
Creek, near Wickenburg, and we grazed it only in the non-
growing season for 20-some odd years, 24 or 25 years. I could 
have accomplished exactly the same thing that we have 
accomplished there in 24 or 25 years in about 7 or 8 years. So 
you increase the healing period by four to five times, 
depending upon how early you begin to graze it in the fall and 
how late you graze it in the spring.
    So, unfortunately, we should have started 20, 25 years ago 
to start better management on riparian areas, but the Forest 
Service was slow to enforce regulations, BLM has been slow to 
enforce regulations. You know, we have a number of neotropical 
migrant birds that are in dire trouble.
    Mr. Shadegg. Unfortunately, I am going to run out of time. 
I do want to say, Mr. Bason, that I agree with you. I think we 
have a serious problem here, both in that the Act attempts to 
freeze time or pretend that man can control the entire 
environment and restore habitats or species that have long 
since disappeared. But even worse than that, my constituents 
believe the Endangered Species Act was designed to protect 
species which are in danger of becoming extinct on the Earth, 
gone.
    And yet, the language of the Act actually says that it 
protects them wherever they once appeared, no matter how 
briefly or for what reason. And we have, I think, several 
species of fish that are creating problems in southern Arizona 
where those species came forward for a brief period of time 
into that area, we can identify they were there for a brief 
period of time, but now we are going to protect for them. And 
where those same species of fish, you will go south of the 
border in Mexico and there are a plentitude. We have the pygmy 
owl, a similar circumstance. And I am a little bit worried 
about that.
    I guess I have a lot more questions, but we have run out of 
time, and hopefully will get a second round either with this 
panel or the next.
    Mr. Pombo. Mr. Duncan.
    Mr. Duncan. Thank you, Mr. Chairman. I want to say first of 
all that I apologize that I had other meetings that prevented 
me from hearing the testimony of the witnesses. I apologize if 
I cover something or ask about something that's already been 
covered.
    But I have a 1996 report that is 2 years old that says 
since 1973 only 27 species have been removed from the 
Endangered Species lists and seven of those were delisted 
because they went extinct. Nine of them, according to the Fish 
and Wildlife Service, were data errors, which means they never 
should have been listed in the first place. The FWS claims to 
have recovered the remaining 11 species, but not one of them 
was saved by the ESA. And it goes on to explain that.
    Is that true? Are we doing better now, or are we basically 
in the same position as this report from 2 years ago?
    Mr. Hutchinson. Mr. Chairman and Representative Duncan, I 
have contended the same thing about the Mexican Spotted Owl, 
that it has been listed in error. And you weren't here maybe 
for my oral testimony at the beginning, but the Supreme Court 
took a look at the issue of land and resource management plans 
as being action forcing or not. The Supreme Court said no, they 
are not action forcing.
    The reason I am getting to this is a lot of these suits 
have been brought, and a lot of listings have been created, due 
to Forest plans in and of themselves. The primary reason that 
the Mexican Spotted Owl was listed was because the Forest plans 
said that the forest would be harvested in a shelterwood 
manner.
    Well, what was stated in the Forest plans and what was 
taking place on the ground were two different things. In fact, 
the Forest Service had taken this sensitive species, which had 
become sensitive because it had been portrayed in the press in 
the Northwest, is the reason it became sensitive. Not 
biologically sensitive; it had become politically sensitive.
    So the Forest planning, in and of itself, became the issue. 
And so we are back to this situation of whether or not species 
are getting listed because they are actually in danger or not. 
I sit on the Mexican Spotted Owl Upper Gilo Working Group for 
the recovery planning. It is a very difficult position for me 
because I look at the biology of the owl, and I look at the 
situation and I say we are losing more habitat for the Mexican 
Spotted Owl due to catastrophic wildfire. We have lost more 
nesting and roosting sites in the last 10 years to catastrophic 
wildfire than in the entire history of logging in the 
Southwest.
    Mr. Duncan. Well, many people have said for a long time 
that this Act has been driven far more by politics and emotion 
than it has been by science or biology. But let me read another 
statement. This is from The Washington Times quoting a report 
that they wrote about in an editorial about 3 years ago.
    It says ``The government has no idea of the true cost of 
the Endangered Species program. Thought unmeasured, the costs 
of implementing the Act as currently written are in the 
multibillions. Yet in over 20 years, not a single endangered 
species has legitimately been recovered and delisted as a 
result of the Endangered Species Act.''
    Does anybody on this panel have an idea of how much we've 
spent or how much the Endangered Species Act has cost us? Is 
this a wild estimate that they have here that says it has cost 
us in the multibillions? Is that true?
    Mr. Hutchinson. I'd say it's underestimated.
    Mr. Duncan. Underestimated. I see that my time is about to 
expire. Let me just go to Mr. Bason. I read in your testimony, 
you say, ``the radical environmentalists have no regard for the 
families or rural economies, which they will kill if their 
suits are successful and their agenda has nothing to do with 
the protection of any endangered species or the environment.''
    What, Mr. Bason, do you feel is their agenda? What many 
people around the country have started to notice is that the 
environmental movement has gone so far to the left and it is 
being dominated by very wealthy people who can insulate 
themselves from the harm that they do, because it doesn't 
really matter to them if they kill jobs or drive prices up. Yet 
there are many poor and working people who are being harmed 
greatly by this movement now.
    And what I am wondering about is what do you mean--or if 
you say their agenda has nothing to do with the protection of 
any endangered species, what do you think their agenda is at 
this point?
    Mr. Bason. I felt till lately that their agenda was to 
drive all livestock off the land permanently in Arizona and New 
Mexico. But I've changed my mind. They want at least one or two 
cows out there, so they can blame every one of these things on 
it.
    In our case of this lawsuit that we are talking about, if 
they completely exclude the livestock off of the 60-something 
allotments that have finally trimmed down to 23 allotments, no 
one is addressing the elk. If there wasn't a cow out there, 
when you have 1500 elk come by, they are going to pound on 
those little minnows just like a cow does. It is completely out 
of line.
    Any thinking person that's got common sense and knows 
whether to pick up a screwdriver or pick up a hammer, knows 
that you cannot do what they are trying to do here. You cannot 
do this. You have to have some other agenda there.
    So I always felt it was to get the livestock off of our 
land completely. But now I know they've got to have one or two 
cows out there, because they've got to have somebody to blame 
all this on. From global warming right on down, you've got to 
have a cow to blame it on.
    I'd like to yield to my colleague who is not here, Sam 
Donaldson, who has ranches in New Mexico, and you know his 
political bent. On Sixty Minutes, his own program, they asked 
him what would you do if an endangered wolf got there with your 
sheep, and he told them what he would do.
    Why in the world does any person in here, any person think 
that if you were at your house and it's five o'clock at night 
and there's no one around and you lift up this little board and 
there's a little six-legged creature that says please don't 
kill me because I'm the last in the world. Let the government 
come control your land free, which is what the Endangered 
Species does, and you have an axe in your hand and you're 
looking at your grandson over there, what are you going to do?
    You are going to do exactly what Sam Donaldson said he 
would do. I know that; I have fought it. I have had the Forest 
Guardians have a meeting of 4 days right in the middle of my 
allotment, so they could walk out and make comments in June 
after a 5-day drought, I mean a 5-year drought. I know. I am 
there on the battle lines. I know what I'm talking about.
    I don't know what the final agenda is, but it has nothing 
to do with those endangered species, because when I went to 
school, there were 200 or 300 endangered species that go out 
every day in the world, every day. Some of the new have to have 
room to come in.
    I wanted to come up here and file suit on those little 
frogs that had six legs over here in Minnesota and claim that 
they are a new endangered species and everybody has to get out 
of Minnesota. It's gone crazy. And that's what I mean by the 
fact that you've got to come to a balance in this.
    Don't ask me another question.
    Mr. Duncan. Well, all I can say is these rich people who 
grew up in the cities and who come out once every couple of 
months into the woods and think of themselves as great 
outdoorsmen, look at things totally different from people like 
you who have lived on the land and on the farms all your lives. 
I appreciate what you have done for this country over the 
years, you and people like you, because you built this nation.
    And if we do away with private property and if we do away 
with ranching and farming in this country, then we're going to 
live to regret it one day, I can tell you that.
    Mr. Bason. I appreciate that comment and the time. I want 
to tell everyone that I am so grateful that Jurassic Park is 
not true, because if they can clone a dinosaur, this whole 
country is potentially habitat.
    Mr. Pombo. Mr. Farr, do you have additional questions?
    Mr. Farr. Just a quick one. Thank you, Mr. Chairman.
    You know, I think this is all about value. You are 
interested in bottom line for ranching. A week ago today, I was 
sitting on the hillside, private land, in Big Sur and I was 
looking at a California condor that had been reintroduced. It 
was pretty exciting. I had never seen one before and I had 
grown up in that area.
    When I walked off the hill I went down to a restaurant and 
in the restaurant everybody was talking about the condors, 
seeing the condors. And the owner of the restaurant came up and 
said thank you for helping preserve the condors and improving 
my business.
    So why do you want to protect habitat? You were talking 
about the fact that the species may come back. Well, in Big 
Sur, the habitat has been protected--this is on the coast of 
California. There are five reintroduced condors and hopefully 
they are going to make it. And you know what? When they make 
it, business is going to increase. The hotels and the 
restaurants are going to have more people in them.
    So I think that is creating value and I believe that there 
is balance here. Unfortunately what happens in a lot of these 
hearings is we invite you to give us a message, and then we 
kill the messenger, rather than trying to get to the real 
issue.
    Dr. Ohmart, I am really impressed with the way you 
approached this. If you want to use Mr. Hayworth's analogy 
about cattle, how many cattle are there today versus 
historically? We could take historical Southern California and 
compare the cattle herds in Southern California today. The only 
difference is a place called Los Angeles. It developed around 
what limited water there was and there was no room for cattle.
    Is there a way to have both cattle grazing and protection 
of the riparian areas? Can this balance be established and has 
it been es-

tablished anywhere in Arizona? Do cattlemen work with you and 
the University in trying to establish these things?
    Dr. Ohmart. I must confess I don't have very many 
permittees that work with me. I work with about three 
permittees. Because generally, my first advice to a permittee 
is let's get the cows off the riparian area, let's get it 
rehealed, give it a jump start if we need to with plantings of 
willows or whatever we need to do to get the woody rooted 
element in there, and then we'll bring the cattle back slowly.
    Mr. Farr. And that hasn't been done yet?
    Dr. Ohmart. Well, I am working on one Forest Service 
allotment on the Prescott National Forest and the permittee 
removed his cows from three and a half miles of the Verde River 
near Perkinsville. Immediately, the Forest Service came in and 
said that's great, we're going to keep the cows off, and when 
our team is ready, we'll bring the cows back on. So I don't 
know if we'll ever get cows back on there, but I think if I'd 
have had 5 to 7 years, we could have started grazing that 
riparian area.
    Mr. Farr. Professionally, do you believe that that's 
possible, to bring the riparian areas back and then allow for 
grazing, through management, as Mr. Skeen talked about, where 
you provide some offsite watering holes and things like that?
    Dr. Ohmart. I firmly believe that. And he had a grant from 
our state land and water group for $75,000 for us to build off-
stream waters. He has the water right and everything. The 
Forest Service never----
    Mr. Farr. You mentioned the State. Let me ask a question 
here, because Mr. Bason talked about the fact that----
    Mr. Shadegg. Mr. Farr, let him finish his sentence. He 
said, ``the Forest Service never,'' and I would like to hear 
the end of the sentence.
    Dr. Ohmart. The Forest Service never finished the planning 
process, so the gentleman lost that money and the opportunity 
to develop upland waters for his upland habitats. As a 
consequence of this, we are kind of stuck, if you would, 
between, I think, good common sense and Forest Service policy.
    Mr. Farr. Well, I appreciate your approach to it. I hope 
the Committee will call upon your good common sense way of 
looking at it.
    Mr. Bason said that the private lands that have water on 
them are being developed. And so what happens is that the 
public lands that have riparian areas and water on them are 
pressured. And the question is, is the State of Arizona doing 
proper land management so that the private lands will be 
responsible for the riparian corridors and not just leave that 
responsibility up to the Federal Government in federally owned 
lands?
    Dr. Ohmart. Our State really does very little to control 
development in riparian areas on private lands, even our State 
trust land. In 1991, EPA published that riparian habitats in 
the West were in the poorest ecological shape they have ever 
been in in the history of this country. I would say that State 
trust lands and riparian habitats even exceed that degradation 
level. There has not been a law passed to protect State trust 
lands in the State of Arizona since we became a State.
    Mr. Farr. Well, I'd be interested in asking the Cattlemen's 
Association in the next panel if they've lobbied the 
legislature to try to get that. Because here you are coming to 
the Congress and beating up on Federal lands because we have 
the responsibility for maintaining riparian habitat, whereas 
other governments have that same responsibility but are not 
carrying out that responsibility.
    Dr. Ohmart. Well, they don't have that responsibility, sir, 
because we don't have the laws, unfortunately, in our State 
trust lands. There are no laws of conservation other than just 
graze them and try to maximize the buck.
    Mr. Farr. Well, California has them.
    Mr. Pombo. Before I go to Mr. Shadegg, Mr. Anable, would 
you like to respond to that?
    Mr. Anable. Yes, thank you, Mr. Chairman. I have heard that 
kind of statement made many times before, and I have always 
asked, where is your data to show me how that is true. It 
really defies logic.
    I submitted a map with my written testimony that depicts 
the State lands scattered throughout the State. The vast 
majority of our livestock allotments are intermingled with 
State, private, and Federal land, either BLM or used in 
conjunction with Forest Service.
    So I never have understood just how the cows that are on 
these intermingled ranches know how to beat up State land worse 
than Federal land that is not fenced separately. Granted, I am 
not going to say every piece of riparian area we have is in 
excellent condition. We have our problem areas. But I think on 
an average, it defies logic to say that State trust riparian 
areas are worse than the BLM or worse than private.
    I probably would hedge and say that there are probably 
better Forest Service riparian areas than the other three put 
together, just because of longer term concern and management.
    Mr. Pombo. Thank you. As is the case with California in 
looking at your map, the largest landowner in Arizona is the 
Federal Government. So it is fairly understandable why you come 
here.
    Mr. Shadegg.
    Mr. Shadegg. Thank you, Mr. Chairman, and I will be brief. 
Not only is the Federal Government the largest landowner in the 
State of Arizona, government is the largest landowner in the 
State of Arizona. I believe it is 86 percent of all land in the 
State of Arizona is owned by some level of government or 
another, Federal, State or local. That leaves very little 
private land.
    I will be brief, Mr. Chairman; I know you want to move on 
to the next panel. I simply want to go back quickly to Mr. 
Bason's point. I am gravely concerned that if--well, let me 
state it differently. I believe we can, and I am pleased to 
hear that both Mr. Wiygul and Dr. Ohmart believe we can 
properly manage lands to allow the presence of cattle for 
grazing, doing it with some common sense and not over-grazing, 
because if we, in fact, drive all grazing off of these lands, I 
think Mr. Bason's point is well taken. And that is that someone 
will then search for some value to that land. The logical value 
will be development and we are going to have, as Mr. Bason put 
so eloquently, a mobile home under every tree. And I think a 
mobile home under every tree is not a particularly attrac-

tive way to develop the rural areas of Arizona or the 
unpopulated areas of Arizona.
    So I think there is a challenge before us to try to work on 
this law to try to improve it. If, in fact, those are both 
taken from the same spot, they tell a very significant picture. 
I hope we can reach a balance.
    In that regard, one of my constituents is Joan Murphy, who 
lives in my district. She is part of an old-time Arizona 
family. She is a self-described environmentalist, rancher, and 
volunteer. She serves on the National Affairs and Legislative 
Committee of the Garden Clubs of America. And we asked her to 
prepare testimony. It is, I think, rather compelling testimony 
talking about this very issue: how do we strike a balance, how 
do we not ban all grazing and yet properly graze so that the 
lands are properly managed. I think it is good testimony, Mr. 
Chairman, and I would like to submit it for the record if I 
could.
    Mr. Pombo. Without objection.
    [The information referred to may be found at end of 
hearing.]
    Mr. Shadegg. I guess I would like to conclude by simply 
saying that I think she has performed a great service in that 
through the Garden Clubs of America, she has brought to Arizona 
various groups and taken them out and shown them three 
different conditions of land: land where no grazing is allowed, 
land which is being improperly managed--overgrazed, in most 
instances--and then land which is properly grazed.
    And in doing so, demonstrated that you can make a very 
strong case that land which is not grazed at all does not stay 
in as good condition as land which is properly grazed. And it 
is obvious that land which is overgrazed is damaged in the long 
run, and that's isn't good.
    So I think there is a challenge before us. I guess I would 
also want to put into the record an editorial by the Arizona 
Republic in which they caution, their words, ``in-your-face 
environmentalists,'' to be careful about what they ask for. If 
they push to eliminate all cattle from public lands and 
succeed, condos might replace cows as private ranch land is 
sold.
    I agree with the Arizona Republic. I don't want to see 
condos replacing cows, and Mr. Bason, I share your sympathies. 
I am glad to see there is some consensus here, I think, on 
where we ought to be going in terms of goals. There may be 
differences in tactics.
    I do have to say I think the purpose--and I want to commend 
the chairman for this Committee hearing--we have got to, I 
believe, create a better law than we currently have, because I 
counted the number of lawsuits in Arizona, and I believe it is 
23 or 24, the vast majority of which filed either by Southwest 
Center for Biological Diversity, Forest Guardians, or Dr. Robin 
Silver.
    And I think it is incumbent upon us as a Congress to create 
a system where not all decisions are made by Federal judges. 
Mr. Wiygul, I was a practicing attorney before I came here, and 
I know that litigation is a lot of fun and a good way to make a 
living and I wish you well in collecting attorneys' fees when 
you do right under the law.
    But Chip Cartwright, who used to be the forest manager in 
that region, and I had a number of conversations. And I came to 
under-

stand that his job was impossible because no matter which way 
he went on any given decision, he was going to get sued. And 
what we then do is turn the management of all these lands, 
whether it's a Forest Service decision or a BLM decision or 
whatever, over to some Federal judge.
    And I simply don't think that Federal judges have all the 
knowledge in the world and I think we have to find a more 
efficient system than the litigation system for resolving these 
issues. Because we create a structure where every time a 
Federal agency makes a decision, they get sued for it, whether 
it was to allow grazing or not allow grazing, allow trees to be 
cut or not allow trees to be cut.
    If we wind up with a lawsuit over that, that is an 
incredibly costly and incredibly inefficient system, making a 
Federal judge decide the issue, whereas I would rather see some 
people with the technical expertise that is present on this 
panel making those decisions.
    Thank you very much, Mr. Chairman.
    Mr. Pombo. Mr. Faleomavaega.
    Mr. Faleomavaega. Mr. Chairman, I do have a couple more 
questions, if it is all right. Thank you.
    I have a listing here of some 237 cases that have been 
filed with the Fish and Wildlife, again on the questions of 
environment and ESA and others. I would like to ask Mr. 
Wiygul--and please don't think I am beating on you or the 
others--I just wanted to get some information here.
    I recall you had responded saying that you have filed 
somewhere between 50 to 100 cases on behalf of your clients, 
especially on environmental issues with the courts. I just want 
to get a more specific number from you on this.
    Mr. Wiygul. Right. I think that the question from, I 
believe, Representative Hayworth, was how many Endangered 
Species Act suits had been filed in the Southwest Region, and 
my guess was, I don't know, 50 or 100. I personally have, over 
the course of 7 or 8 years, probably filed 30 or 40.
    Mr. Faleomavaega. OK, so I just wanted to get out of that, 
Mr. Wiygul, what percentage have been cases that you file 
against Federal agencies for their lack of implementation of 
the provisions of the law?
    Mr. Wiygul. Probably 40 percent, 30 percent, 40 percent.
    Mr. Faleomavaega. The reason for my raising this is that I 
get a strong impression that, at least from the comments made 
earlier, there is nothing wrong with the law. It is just a lack 
of enforcement of the law that we find ourselves in court. Am I 
correct on this or am I getting the wrong impression from you 
gentlemen?
    Mr. Wiygul. I think in the case of the Endangered Species 
Act, I believe, particularly in some regions of the country, 
the problem is lack of application and enforcement of that 
statute of the front end of the Federal land management 
planning for other Federal action processes.
    I think it's important to remember in the Southwest that 
the vast majority of those cases that have been filed there 
have been won by the plaintiffs, and the forum in which we play 
there is that of the Federal courts. And the Federal courts are 
a forum in which accountability is demanded of attorneys such 
as myself and people who bring those suits.
    I do not think that the judges that we appear in front of 
there can fairly be characterized as radical environmentalists, 
yet they have ruled in favor of the plaintiffs in most of those 
cases.
    Mr. Faleomavaega. Well, I think in most instances judges 
just don't want cases to come into their courts anyway. It's 
just a problem that they are being forced into a situation 
where they have to be the arbiters and they have to make a 
decision when issues such as this come before them.
    But I just wanted to get an idea from you gentlemen, all of 
you, is it really because of the problems that we have with the 
Federal agencies and their enforcement process? Is it the lack 
of promulgation of proper regulations based on the statute, or 
is it just a problem of the law itself? This is what I am 
trying to get to the bottom of.
    Mr. Wiygul. Right. I do not believe that there is a basic 
problem with the law itself, with the exception of the fact 
that it needs to be strengthened to make sure that we protect a 
lot more habitat.
    Mr. Faleomavaega. Again, hearing from my colleagues, and I 
respect them in terms of how they feel about endangered 
species, we just had a hearing last week in Reno, Nevada on how 
we came about protecting wild horses and burros.
    This wasn't because the legislators or our leaders here in 
Washington wanted to protect wild horses and burros. It was 
because of the requests of hundreds and thousands of children 
from all over the country. Wild Horse Annie from Reno, Nevada, 
who is the lady who initiated the whole concept, and the fact 
that if there was indiscriminate slaughtering of horses that 
ended up in meat houses for pet food, the kind of thing that 
goes totally against the mentality of the American people, 
Hopalong Cassidy, Gene Autrey, and Roy Rogers, bless his heart.
    You know, we live these kinds of experiences, and I see the 
merit that there should be some kind of protection given to 
these species of animals and plants, and I think it is part of 
our heritage. So I do see that there is merit to the 
legislation, but at the same time, if we are not doing the 
extremes, just as the gentleman from Guam stated earlier.
    And I think there is where we are having to find ourselves 
on how can we strike that balance for the endangered species, 
for the needs of Mr. Bason and what they are advocating, and 
for our friends who represent the environmental community.
    That is all I wanted to share with you gentlemen. Thank you 
again, Mr. Chairman.
    Mr. Pombo. Mr. Wiygul, I just wanted to give you an 
opportunity to correct the record. You said that in the vast 
majority of the cases, you had won. I have a list of the cases 
in front of me. I believe there is a couple, two, three here, 
that were actually won. Most of these were settlements similar 
to what happened in this particular lawsuit.
    My understanding of this is that you didn't have a judge or 
a jury find in your favor, you had a settlement and that is 
where we end up with the so-called friendly lawsuits.
    Mr. Wiygul. I don't have the list that you have in front of 
you there, but I don't doubt that a lot of those were through 
settlements. However, I think they were through settlements 
that gave the plaintiffs what they wanted, which plainly, I 
think, is a victory.
    Mr. Pombo. Which brings us back to the reason that we are 
holding a hearing like this where you get accused of friendly 
lawsuits between an environmental group and a willing Federal 
Government that settles a case, and the cattlemen are sitting 
out on the side and they are not part of the settlement.
    Mr. Wiygul. I think that my experience with litigating 
Endangered Species Act cases and other sorts of cases with the 
Department of Justice and the Federal agencies has been that 
the agencies are not willing parties, and that those 
settlements come about because the agency makes a correct risk 
termination that they are going to lose the lawsuit and that 
they need to cut their losses and try to do the best they can 
and get out of that situation.
    With respect to the allegation that cattlemen, the 
Cattlegrowers Associations, were cut out of those discussions, 
I was specifically told by the attorney for the Arizona 
Cattlegrowers Association that he believed that settlement 
discussions or any sort of settlement there would violate a 
number of Federal statutes and they were not going to take part 
in those discussions.
    I regret that they made that decision. Apparently, they 
did, and they did not take part in those discussions.
    Mr. Pombo. We are going to give the cattlemen an 
opportunity to respond to that in writing, because I do believe 
that that is an important point. There is obviously a 
difference of opinion in front of the Committee today about 
whether or not they voluntarily decided to stay out or whether 
they were told they had to stay out.
    I would like to ask you another question. In terms of 
filing this number of lawsuits, I have got a list here of about 
320 lawsuits that have been filed by the organization that you 
represent. Over the past several years, the vast majority of 
those are in the West. Why do you think all of these lawsuits 
are filed in the West and the Southwest?
    Mr. Wiygul. I think in response to an earlier question 
here, the reason is a very simple, straightforward, and 
intuitive one. First, the Southwest is an area which, because 
of its ecosystem and the complexity of it, has a lot of 
endangered species. That's one very good reason that that is 
the case.
    The other is that, unfortunately, in a lot of cases, the 
Endangered Species Act has not been complied with there.
    Mr. Pombo. Do you feel that the Endangered Species Act is 
being complied with much more in the Northeast?
    Mr. Wiygul. I think you have a couple of factors at work 
there. I suspect that if you looked at the relative numbers, 
you would find that you didn't have as many assemblages, if you 
will, of endangered species in small areas that concentrate the 
effects of management actions as what you have in the 
Southwest.
    Mr. Pombo. Do you think if you took the 300-some odd Fish 
and Wildlife Service employees that are in charge of listings 
in California and put them in Michigan for a couple of years, 
that they could find more endangered species?
    Mr. Wiygul. I don't know the answer to that question, Mr. 
Chairman.
    Mr. Pombo. And at the same time, take your organization and 
move you to Michigan, do you think there would be more lawsuits 
filed up there?
    Mr. Wiygul. You know, I think I do know the answer to that 
question. It would probably be no, because I have practiced in 
other parts of the country where the Endangered Species Act was 
not used as much, and the reason for that was there just 
weren't as many endangered species or Federal activities of the 
type that affected them.
    Mr. Pombo. Final question to followup on what you just 
said. All of these lawsuits, or the vast majority of these 
lawsuits are because of habitat and habitat destruction. You 
know, the picture of the habitat that's up there, that's what 
we always talk about as habitat destruction.
    This photo we have of the land use pattern in Nevada would 
be very similar in California, Arizona, and New Mexico. There 
is obviously a lot less habitat destruction in those States 
than there is in the Northeastern States, the Mid-Atlantic 
States where they have much heavier development. The farming is 
much more intensive over the years in those states.
    And yet, the habitat destruction that has occurred in those 
States doesn't seem to interest you or the Fish and Wildlife 
Service. It is the habitat destruction that occurs out West 
because of cattle or other things that gain your attention.
    Mr. Wiygul. I'd have to respectfully disagree with you 
about that, Mr. Chairman. I think there are an awful lot of 
folks up in the Northeast and on the East Coast who are very 
concerned about those issues.
    Mr. Pombo. Oh, they're very concerned about Arizona and 
California and other places. They are not quite as concerned 
about what's happening in their area, because we don't have the 
lawsuits being filed that demand that they list endangered 
species there the way that you do out in Arizona.
    I am going to dismiss this panel. I do not want to cut you 
off, but unfortunately, we have 5 minutes left in the vote and 
we are going to have to go vote. I am going to dismiss this 
panel. I will tell you that there are going to be further 
questions that I have of each of you that will be submitted to 
you in writing. I would request that you answer those in a 
timely fashion so that they can be included in the Committee 
hearing record.
    Unfortunately, we are out of time, though, and we have to 
go vote. But I am going to dismiss this panel and the hearing 
will be temporarily recessed.
    [Recess.]
    Mr. Pombo. We're going to call the hearing back to order. 
I'd like to call up our second panel.
    As you're taking your seats, I apologize to the second 
panel for the delay. Sometimes we can't control the floor 
votes, but thank you for being here to testify today.
    Mr. Menges, if you are ready, you can begin.

   STATEMENT OF JEFF MENGES, SECOND VICE PRESIDENT, ARIZONA 
           CATTLEMEN'S ASSOCIATION, PHOENIX, ARIZONA

    Mr. Menges. Thank you, Mr. Chairman. My name is Jeff 
Menges. I'm a fourth generation rancher from Southeast Arizona, 
and currently serving as Second Vice President of the Arizona 
Cattle Growers and present this testimony on behalf of its more 
than 2,000 members.
    I'd like to thank the Committee and the chairman for having 
this hearing and inviting me to testify on behalf of the 
Arizona Cattle Growers with regards to the suits that were 
addressed in Tucson and also with regards to some of my own 
personal experiences on BLM lands and the Endangered Species 
Act.
    In the cases in Tucson, cattle growers were brought into 
the process at the request of the Forest Service and then sold 
out by the same agency. The Arizona Cattlemen's Association had 
witnesses prepared to testify as to the benefits that can 
result from grazing in riparian areas, that it is not necessary 
to exclude grazing to ensure the continued existence of the 
species in question, and that excluding grazing could be 
potentially harmful to some of the endangered species. 
Unfortunately, these witnesses were never heard because the 
agreement that was reached between the government and the 
environmental groups quickly brought an end to the hearing.
    First, I want to point out that the ability to continue to 
utilize Federal lands is crucial to the future of the ranching 
industry, particularly in Arizona where the Federal Government 
owns more than 73 percent of the land. These lands are 
intermingled with State and privately owned lands making nearly 
every ranching operation dependent to some degree on the 
ability to utilize the Federal lands for grazing.
    This attack by the environmentalist groups on Federal lands 
grazing is having the effect of destroying Arizona's ranching 
industry which provides beef for approximately seven million 
people. This overzealous use of the ESA suits is forcing hard 
working ranch families into removing their cattle from the very 
allotments they have spent their lives stewarding--allotments 
which are in better condition today than at any time in 
history.
    For most ranchers, it is a lifetime goal to pass the family 
ranch to the next generation as their parents and grandparents 
have done. Good stewardship of the lands is in the best 
interest of every ranching family. Nevertheless, there are a 
number of interest groups that make no secret of the fact that 
they intend to remove all cattle from the Federal lands in the 
Southwest, and they are utilizing the ESA to do just that.
    A typical scenario of what happens is the groups find an 
area where they want to stop a use. They find a species, 
petition to have it listed, file suit against the agency, 
asserting that they haven't entered into consultation and that 
they are taking endangered species, then they request a 
preliminary injunction, asking to stop the activity, usually 
grazing, then they settle out of court and, more times than 
not, they're awarded attorneys' fees. Assuming this trend 
continues, most ranchers will turn to their last option which 
is to subdivide and sell their private land.
    I was called as an expert witness to the U.S. District 
Court in Tucson, Arizona where the Forest Guardians were 
seeking a preliminary injunction to stop the grazing on more 
than 100 forest allotments. The Forest Service had requested 
that the Arizona Cattle Growers intervene in the process. The 
ACGA then intervened, along with the New Mexico Cattle Growers' 
Association, at a cost to us of approximately $100,000 only to 
have the Forest Service settle with the environmentalists, 
behind closed doors, resulting in the removal of cattle from 
these riparian areas.
    And I see my yellow light's come on, so I'd like to get 
into my own case on the BLM lands. As you can see, my pictures, 
like Dr. Ohmart's pictures, are before and after pictures, but 
the difference is this area has been grazed--winter grazing. We 
started in March 1990. That picture was taken the day we put 
the cattle out of the area. We completed fencing. We completed 
waters. We entered into a written, cooperative agreement saying 
that we were going to graze the area in the winter during the 
dormant season. We grazed it each winter. That's what it looked 
like last week--the bottom picture and then, in 1995, I 
received an award for the efforts. The BLM monitored it in 1995 
and it was the only area in 29 miles that was in proper 
functioning condition, including a number of areas that had 
cattle totally excluded. And then as a result of one of these 
ESA lawsuits filed by the Southwest Center for Biological 
Diversity, earlier this year I was sent a full force and effect 
decision saying that I would have to permanently remove my 
livestock from that area.
    So, in conclusion, until recently I've always been a strong 
supporter of the BLM and its grazing program. It distresses me 
to be in confrontations with BLM officials that I considered 
friends, but I have an obligation to my family to stand for 
what is right and protect my family's future. I've always 
believed that by caring for the land as my parents, 
grandparents and great grandparents did I was preserving an 
opportunity for my own children to engage in this lifestyle if 
they should so choose. But I am now convinced that if this 
runaway train called the Endangered Species Act is not stopped, 
my children will not have that opportunity.
    Thank you.
    [The prepared statement of Mr. Menges may be found at end 
of hearing.]
    Mr. Pombo. Thank you.
    Mr. Lohoefener.

  STATEMENT OF RENNE LOHOEFENER, ASSISTANT REGIONAL DIRECTOR, 
      FISH & WILDLIFE SERVICE, U.S. DEPARTMENT OF INTERIOR

    Mr. Lohoefener. Mr. Chairman, members of the Committee, 
thank you for the opportunity to discuss the Endangered Species 
Act, specifically issues related to conservation of natural 
resources and grazing in the Southwestern United States.
    The Fish and Wildlife Service has experienced an abundance 
in the dangerous species related litigation in the last few 
years, especially in the Southwest. However, the Service 
strongly supports the citizen suit provision of the Endangered 
Species Act. This provision plays an important role in ensuring 
the States, counties, the indus-

try, environmental organizations, and private citizens have a 
say in the protection of species and habitat, and provide the 
means for these parties to ask the courts--the judge--whether 
agencies are appropriately implementing the Endangered Species 
Act.
    Natural resource conservation in the Southwest is extremely 
challenging, not as a result of the citizen suit provision and 
Endangered Species Act, but because there are so many competing 
demands for the Southwest natural resources. The Southwest is a 
biologically rich area with many diverse and fragile 
ecosystems, large expanses of public lands, fast growing 
metropolitan centers, and scarce water resources. This 
situation has been further complicated by past problems in 
communication among Federal agencies and with the public. In 
addition, the Service and other agencies in the Southwest have 
an extremely heavy and ever-increasing workload.
    The complex social, ecological, and economic patterns in 
the Southwest are not going to change. However, a change that 
is already underway is how Federal agencies are communicating 
with each other and with the public, and how we are working 
together to ensure compliance with the Endangered Species Act. 
We are working closely with other agencies to streamline the 
consultation process and to make it as efficient and effective 
as possible. The Service has made and will continue to make 
every effort to ensure that our decisions are scientifically 
valid and our priorities are driven by the needs of species.
    The Endangered Species Act requires the Service to make 
listing decisions based solely on the best scientific and 
commercial data available. It cannot be and is not influenced 
by pending or threatening litigation.
    In the Southwest, the Service and other Federal agencies 
have made a commitment to collaborate among agencies, with the 
public, and with tribal, State and local governments. This 
effort is known as the Southwest Strategy. By improving 
communications with all interested parties, including open 
dialogue early in the decisionmaking process, we hope to 
decrease the amount of litigation and use the resources that 
are currently applied to litigation to increasingly work with 
our partners to conserve natural resources in the Southwest.
    For example, to bring all agencies into compliance with the 
Endangered Species Act section 7 consultation requirements, a 
Southwest Strategy work group has just completed the 
streamlining process to address the near-term section 7 
workload. In addition, public involvement is being undertaken 
and agencies involved in the Southwest Strategy have recently 
been in contact with and sought feedback from various State and 
tribal governments and non-government parties.
    Recently, the collaborative process developed through the 
Southwest Strategy helped avoid an injunction on cattle grazing 
on 160 Forest Service allotments in Arizona and New Mexico. The 
Forest Service and the Fish and Wildlife Service had committed 
to find new ways of doing business in the Southwest and a 
grazing work group was under formation as part of the Southwest 
Strategy enabling us to come together quickly to consult on 
allotments identified in litigation by environmental 
organizations.
    This interagency group was not only able to expedite 
consultation on the 160 allotments that were the subject of the 
lawsuit, but they also reviewed and consult on a total of 
nearly 750 allotments. During the review of these allotments, 
the Forest Service's commitment to protecting species and 
ecosystems was evident as very few modifications were needed to 
ensure that listed species were not adversely affected by 
cattle grazing.
    In order to ensure that the Service is able to help 
conserve natural resources while remaining responsive to the 
needs of other Federal agencies and the public, the 
administration has requested a $2 million increase in the 
Fiscal Year 1999 budget for the Southwest region. This increase 
in funding will allow us to increasingly work with partners to 
reduce the need to list species, increasingly work to recover 
species so that they may be removed from the list of protected 
species, continue to address the listing backlog and respond to 
the hundreds of consultations requested by our Federal 
agencies--other Federal agencies.
    The Service and numerous other Federal agencies have put a 
great deal of effort in getting the Southwest Strategy underway 
and are hoping to use it as an example of how we can do 
business in a more efficient and effective manner. We want to 
ensure that those individuals that make a living off the land 
can continue to do so while also ensuring that native species 
and their habitat are protected on Federal lands, that our 
natural heritage is conserved, and that future listings are 
avoided.
    I am happy to report that we are currently headed in this 
direction. I hope I can report back to you in the near future 
that our efforts have been successful and litigation in the 
Southwest has been reduced.
    Mr. Chairman, members of the Committee, thank you again for 
the opportunity to testify on this issue. I'd be happy later, 
of course, to answer any questions you may have.
    [The prepared statement of Mr. Lohoefener may be found at 
end of the hearing.]
    Mr. Pombo. Thank you.
    Mr. Coppelman.

STATEMENT OF PETER COPPELMAN, DEPUTY ASSISTANT ATTORNEY GENERAL 
   FOR THE ENVIRONMENT AND NATURAL RESOURCES DIVISION, U.S. 
                     DEPARTMENT OF JUSTICE

    Mr. Coppelman. Mr. Chairman and members of the Committee, 
I'm pleased to testify today regarding citizen suits brought by 
environmental plaintiffs under the Endangered Species Act and 
other natural resource statutes in the Southwestern United 
States. The Committee has asked that I focus on two particular 
cases: Southwest Center for Biological Diversity and the Forest 
Guardians' case and, particularly, on the stipulations that 
were entered in settlement of plaintiff's motion for 
preliminary injunction, and I'm happy to do so.
    Decisions of Federal agencies in this case have avoided the 
kind of broad injunctions that have been entered in a number of 
cases around the country. Unlike those situations, there is no 
region-wide shutdown imposed by a Federal court in this case. 
Grazing in the Southwest has continued despite all the 
litigation that we've heard about.
    In my written testimony, I described three situations where 
litigation was pursued rather than settlement and we found the 
courts to be quite unsympathetic in the face of agency 
noncompliance with various environmental requirements including 
the Endangered Species Act. Those are first, in Texas--on the 
Texas National Forests litigation involving the Red-Cockaded 
Woodpecker that began in 1985 has resulted in injunctions that 
were entered in 1988 and, despite two trips to the Court of 
Appeals, remain in effect today.
    In the Pacific Northwest, as the Committee is aware, 
injunctions entered by Federal courts in 1989 to 1992 shut down 
all timber harvesting on 24 million acres of old growth forest 
until the agencies produced the President's forest plan in 
1994. And closer to home, in the Southwest, Federal courts 
enjoined all timber harvesting in the region for over 16 months 
until December 1996 finding violation of consultation 
requirements of the Endangered Species Act with regard to the 
Mexican Spotted Owl.
    Let me now turn to the Southwest Center litigation. In the 
Southwest there are over a thousand grazing allotments in 12 
national forests of which upwards of 700 contain species that 
are listed under the Endangered Species Act. The Act requires 
the Forest Service to consult with the Fish and Wildlife 
Service on activities that the Forest Service authorizes or 
permits, like grazing, that may affect listed species. So, in 
1996 and 1997, the Forest Service consulted with the Fish and 
Wildlife Service on the effects of grazing on a region-wide 
basis, but this region-wide consultation, which concluded in 
December 1997, did not include an analysis of the effects of 
grazing on individual allotments. In the absence of these site-
specific consultations, the Forest Service was arguably out of 
compliance with the Endangered Species Act.
    The Southwest Center lawsuit was filed in October 1997, and 
it was consolidated with a lawsuit that was filed by Forest 
Guardians in December 1997. These two lawsuits, collectively, 
named over 150 allotments for which consultation was lacking, 
and the complaints in both cases asked that all grazing on all 
these allotments be stopped pending completion of the 
consultation.
    Shortly after these lawsuits were filed both the Arizona 
Cattle Growers' Association and the New Mexico Cattle Growers' 
Association moved to intervene, and they were granted 
intervenor status.
    In early March 1998, the Forest Service and the Fish and 
Wildlife Service and the Department of Justice convened a 
conference call among all the parties, including the 
intervenors, to explain the proposed process for completing 
consultation. Soon after this discussion, the plaintiffs--the 
environmental plaintiffs--moved for a preliminary injunction 
against grazing on all the allotments that were identified in 
their two complaints. We filed a response in which we pointed 
out that most of the riparian habitat of species identified had 
already been excluded from grazing, and for the remainder, 
grazing in riparian areas would be excluded in the near future. 
So it became apparent to everybody that the Forest Service was 
already excluding grazing in most of these riparian areas on 
the majority of the allotments so that settlement would be a 
good idea to discuss.
    A few days prior to the preliminary injunction hearing, all 
of the parties--all of the parties, including the intervenors, 
began discussions--this was about 5 or 6 days as you've heard, 
before the hearing--to determine whether we could avoid the 
need for a hearing. And, initially, counsel for the intervenors 
participated. They voluntarily withdrew from those discussions. 
We didn't kick them out.
    Shortly after the first stipulation was signed, and they 
didn't like it, they went to court and asked for a temporary 
restraining order against enforcement of the stipulation. 
That's their perfect right to do so. They argued that the 
Forest Service couldn't legally make the management changes 
that were in the agreement, and that if the agreement was 
implemented it would cause them economic hardship.
    After the hearing, the district court or the magistrate 
recommended that their motion be denied. The magistrate found 
that the Forest Service had the authority to make the changes 
necessary to affect the management direction and that the 
permittees would have the ability to participate in the changes 
and they would retain their right to contest them. The courts 
said specifically, ``if the Forest Service does not follow 
through on its plans to exclude grazing on a shortened timeline 
in order protect the listed species, and a violation of the ESA 
results, the harm could be truly irremediable.''
    The district court judge accepted the magistrate's 
recommendation. The consultation has been progressing on 
schedule. A draft biological opinion was issued and it's now 
projected that the final opinion will be issued in the middle 
or end of August. The delay is caused by the request of the 
Cattle Growers for more time to comment.
    I would be happy to answer any questions the Committee 
might have.
    Thank you.
    [The prepared statement of Mr. Coppelman may be found at 
the end of the hearing.]
    Mr. Pombo. Thank you.
    Ms. Towns.

     STATEMENT OF ELEANOR TOWNS, REGIONAL FORESTER FOR THE 
  SOUTHWESTERN REGION, U.S. FOREST SERVICE AND DAVE STEWART, 
              ACTING DIRECTOR OF RANGE MANAGEMENT

    Ms. Towns. Thanks for the chance to discuss the Endangered 
Species Act and grazing in the Southwest. I'm accompanied by 
Dave Stewart, the Region's Acting Director for Range 
Management.
    Folks, this is not a new controversy. Over a hundred years 
ago, Gifford Pinchot, the first chief, argued that grazing 
should be permitted and regulated, but not prohibited. The 
Congress apparently agreed. Over the years, and in many laws, 
you told us to regulate use and occupancy, but preserve the 
forest, and later you told us to permit grazing and to protect 
the public's natural resources. And so we walk that tight rope, 
seldom pleasing ranchers or environmentalists, each absolutely 
convinced that we are in the pocket of the other. I'm not 
complaining. I love my job. I'm even going to love it at the 
end of today.
    I went to the Southwest to find middle ground between laws 
that require protection of the resources and laws that 
authorize grazing, and I think that's what you want, as well. 
So let's talk about this Southwestern region. We are 12 
national forests, and more than 20 million acres of Federal 
land in Arizona, New Mexico, Oklahoma, and Texas. It's a large 
and diverse area with ecosystems such as the Colorado Plateau 
in Arizona and New Mexico, the Chihuahuan semi-desert in New 
Mexico, the Sonoran Desert in Arizona, and grasslands in 
Oklahoma and Texas.
    Our range management program is extensive and it's 
important to this agency. We have over 1300 grazing allotments 
and over 1600 permits regulating about two million animal 
months of grazing by cattle, horses, sheep, and goats. That's 
about 18 percent of the permits and 16 percent of the animal 
months of grazing on national forest systems lands service-
wide.
    In 1995, we faced the grim reality that over one-third of 
our grazing permits would expire by the end of 1996. We are 
scheduled to complete analyses on about 600 of some 1400 
permits by the end of this year. Priority was given to 
allotments with habitat or species, clean water, or riparian 
issues.
    Well, shortly after we started environmental analysis of 
those allotments, and that's one process, we began forest plan 
level--not site-specific--forest plan level consultation on 
ESA. We knew it'd be a while before site-specific analysis 
would be done and so we established region-wide management 
requirements to avoid jeopardizing those species or destroying 
habitat until we could do site-specific analyses. We even put 
those management requirements into the 1998 annual operating 
plans for each grazing allotment.
    But, nonetheless, in 1997, we were sued twice for allowing 
grazing on 160 allotments before required site-specific 
consultation was completed. So, in February, we initiated site-
specific consultation on those allotments and, while we were at 
it, on another 600 with habitat for listed species.
    And, by the way, I'll take a moment to say that your 
government worked in that instance and we worked hard on behalf 
of the resources and the permittees. Two agencies mobilized 
forces and consulted on 750 allotments in record time. The 
majority, around 600 of them, were determined not to have 
affected species or their habitat. Over 100 were found not to 
have adversely affected listed species. And, so it came down to 
this: of 750 allotments, 21 were found to have adversely 
affected species or their habitat and even though the livestock 
were moved around, seasons were changed, none--zero cows, were 
removed from those allotments as a result of those 
stipulations. To the good, I'm told, that some ranchers elected 
to remove cows in response to consultation on their allotments.
    And, so, here we are: 21 allotments, zero cows removed as a 
result of these stipulations, and two approximately month-long 
stipulations. But back to my story. We started NEPA, and we 
started forest plan consultation, not site-specific. Then we 
were sued for not doing site-specific consultations. We started 
that and then the plaintiffs moved to take livestock off until 
site-specific consultation was done. And to avoid the risk of 
having the livestock taken off, in June, we signed stipulations 
with each plaintiff.
    A couple of points about those stipulations: they were 
short-term, stop-gap agreements that would have ended today had 
we not honored the ranchers' request for more time to study the 
draft biological opinion. Now, some of the ranchers, and some 
of you believe that in negotiating the stipulations, we cut 
deals imposing new and dire conditions. The truth is that, for 
the most part, the stipulations formalize management practices 
that already were being implemented or planned to be 
implemented. And I thought I heard Mr. Bason refer to that.
    In our judgment, signing the stipulations protected the 
resources and kept the livestock on the land and that was our 
choice of evils. The consultation will soon be completed. 
Additional management requirements may very well be necessary. 
I'm almost through, Mr. Chairman. We will continue to make 
progress on NEPA analyses and new allotment management plans. 
All of this takes time and, no doubt, the uncertainty is 
unsettling to some. Resolving this grazing situation in the 
Southwest is a priority for this administration. To that end, 
the President has asked for a $20 million increase in service-
wide range management dollars for 1999; a $3 million increase 
for habitat management for listed species.
    To those who might think that denying these increases will 
restore the status quo, I say that we need the money to comply 
with law. Failure to do so puts grazing and resources in the 
hands of litigants and the courts. And second, as has been 
referred by Mr. Lohoefener, at the insistence of two 
secretaries, agencies in the Southwest came together around 
this issue. We are committed to improving collaboration among 
the users, Federal agencies, States, local governments, tribes, 
and the public; and it's working. I met with the Natural 
Resources Conservation Service officials to discuss range 
improvement budgets for the affected allotments, and it's our 
hope that in the future the improved collaboration among the 
parties will enhance sustainable resource management, reduce 
the polarization litigation that currently are occurring in the 
region.
    Thank you.
    [The prepared statement of Ms. Towns may be found at the 
end of the hearing.]
    Mr. Pombo. Thank you.
    Mr. Coppelman, you said in your testimony that, shortly 
before the settlement, that all of the groups were called 
together and given the opportunity to negotiate and that the 
cattlemen were part of the process. Is that the 6 days that we 
heard testified to earlier?
    Mr. Coppelman. Right. Nothing--there were no negotiations 
before the 6 days.
    Mr. Pombo. There were no negotiations?
    Mr. Coppelman. Well.
    Mr. Pombo. Your testimony is considered under oath and I 
didn't swear anybody in, but, if you need to confer with 
someone else, please do.
    Mr. Coppelman. No, my understanding is that the 
negotiations, you know, were spurred by the scheduling of the 
preliminary in-

junction and--so that the negotiations essentially started 6 
days before the hearing. That's my understanding. I was not 
involved in the negotiating.
    Mr. Pombo. The Committee has received statements from 
others that would indicate that the negotiations between 
Justice Department Forestry were--in the environmental groups 
were happening before the 6 days; that they were discussing a 
possible settlement and possible provisions that would be 
acceptable to both of you and that it was only up to the 6 days 
that the cattlemen were called in.
    Mr. Menges. Are you talking to me?
    Mr. Pombo. I'm going to give him an opportunity to answer.
    Mr. Menges. I thought you were looking at me so----
    Mr. Pombo. No.
    Mr. Coppelman. Well, there could have been talks before 
that, but there was----
    Mr. Pombo. Talks are what I'm talking about. Yes.
    Mr. Coppelman. The 6 days--there was a specific proposal, 
a----
    Mr. Pombo. You had a proposal that you put on the desk and 
said this is what we're going to talk about at the 6 days?
    Mr. Coppelman. We didn't draft the proposal. I think the 
proposal was drafted by the environmentalists and it was 
circulated among all the parties.
    Mr. Wiygul. I believe that's correct.
    Mr. Pombo. I want you to be very careful about how you 
answer this because I don't want this to go anywhere beyond 
this hearing. The draft proposal that was put together, was the 
Justice Department and the Forest Department part of that draft 
proposal in negotiating what was in and what was--what way 
possible settlement could look like?
    Mr. Coppelman. Yes. Our attorneys were involved in----
    Mr. Pombo. Before the 6 days.
    Mr. Coppelman. Mr. Chairman, the trial attorney who was 
involved in discussion isn't here, and I don't know the 
specific answer. I'll have to get back to you on that then.
    Mr. Pombo. Ms. Towns, were you part of the discussions?
    Ms. Towns. No, sir. I have been regional forester for a 
grand total of 3 months now.
    Mr. Pombo. Mr. Stewart, that is with you, was he part of 
the discussions?
    Mr. Stewart. No discussion with our plaintiffs. All of our 
discussions were with our Department of Justice attorneys, in 
terms of articulating to them what the status of these various 
allotments were with respect to various actions that we were 
taking to protect riparian areas. But no discussions with 
plaintiffs.
    Mr. Pombo. You had no discussions with the plaintiffs?
    Mr. Stewart. I had no discussions with plaintiffs. To my 
knowledge, the agency did not. The only discussions that were 
taking place is that as we continued to administer grazing 
permits in the field, on our forest and on our ranger district, 
there were discussions between those people, not directly 
involved with litigation, that are responsible to work with the 
permittees to try and work out resource issues.
    Mr. Pombo. If we have one of the employees of the Forest 
Service who steps forward and says that he was told that the 
settlement would include fencing off the riparian areas several 
weeks before the 6-day period--he was told by his superiors 
that--how would he come up with that information if you were 
not discussing this settlement with someone?
    Ms. Towns. I have no idea, sir.
    Mr. Coppelman. Well, let me say, Mr. Chairman, that there 
were many discussions right from the get-go, when these 
lawsuits were filed, about how to respond and what we were 
going to do--what the government was going to do in response to 
the lawsuits. There were many conversations among the agencies 
and, in fact, on February 6, 1998, well before this hearing, 
the Fish and Wildlife Service and the Forest Service entered a 
grazing consultation agreement where they set forth how they 
were going to carry out these--the consultation requirements on 
the specific allotments, and there were probably discussions 
about what kinds of things might be required as a result of 
this consultation. I mean, I can provide that for the record, 
if you don't already have it.
    Mr. Pombo. Please do. Would it be fair to say that there 
were informal conversations with the plaintiffs about what 
could possibly be in the settlement agreement before they 
drafted the agreement--six days prior to the settlement?
    Mr. Coppelman. Mr. Chairman, I really, without having a 
trial attorney here would--I don't want to guess, as you might 
imagine. I mean, and I will definitely get an answer to you.
    Mr. Pombo. Well, the request was that the trial attorney 
also appear at the hearing and I'm a little bit perplexed that 
we go through the trouble of trying to bring people here for a 
hearing and we don't have people who can answer questions. And 
this is not a slam on you or your ability. I'm sure you do your 
job very well, but the purpose of the hearing was to try to 
find out what happened and to try to answer some of the 
questions that the members have, and for the administration to 
provide us with people who are not in position to answer 
questions is very difficult for us.
    I would appreciate it if you would provide that for the 
record. Let me ask you: Were the Cattlemen's Association 
intervenors included as well in any informal or formal 
conversations that occurred before the 6 days?
    Mr. Coppelman. Prior to the 6 days? That will have to be 
included in the answer that I provide to you.
    Mr. Pombo. Can I ask the Forest Service? Were you 
discussing with the Cattlemen's Association and the other 
intervenors what a possible settlement could look like? Mr. 
Stewart, I know Ms. Towns wasn't there. Mr. Stewart, can you 
answer that?
    Mr. Stewart. Yes. The answer is no. But I would like to 
say--make some remarks about that. Well over a year ago, before 
either of these lawsuits were filed, the Forest Service 
directed our district rangers to look very closely at 
allotments that had already been mentioned in notices of intent 
to sue. We had several 50-day notices of intent to sue. We had 
the allotments, they were actually mentioned. They were written 
out for us to look at and we knew that these were potential 
allotments that could be under litigation. And, so we directed 
our forest supervisors and district rangers to look very 
closely, in the Summer of 1997, what changes would need to be 
made in annual operating plans for 1998 grazing season, 
irrespective of any of this litigation. So----
    Mr. Pombo. So you discussed it with the cattlemen before?
    Mr. Stewart. We discussed it individually with grazing 
permittees, not necessarily the cattlemen's organization in the 
context of settlement.
    Mr. Pombo. Mr. Menges----
    Mr. Stewart. But there we no lawsuits filed at that point 
in time.
    Mr. Pombo. Mr. Menges, is--are you aware of these 
conversations taking place about the riparian areas a year 
before?
    Mr. Menges. The Forest Service, I know, out on the ground 
on an individual basis talked with certain permittees. It's an 
indication of how intimidated that the agencies have become by 
these lawsuits because nearly a year before this thing ever 
went to court, they were out there managing as if they were 
managing for endangered species before the consultation was 
ever complete, just at the threat of a lawsuit. They were 
starting to ask these ranchers to get their cattle out of there 
and amend their annual operating plans to do that. So, yes, I 
think that they did talk to them. We've seen the same situation 
in other areas of the State with the gosshawk. That species has 
never been listed. The Forest Services has adopted guidelines 
for management of goshawks. Might as well be listed.
    Mr. Pombo. Mr. Lohoefener----
    Ms. Towns. Mr. Chairman, if I may address that. Please.
    Mr. Pombo. Yes. Go ahead.
    Ms. Towns. We were out on the ground talking with 
permittees. We--you know there's been some question about 
enforcement over time. We've been out on the ground over a 
number of years discussing range management issues and doing 
that which we're supposed to do in terms of stewardship. I 
think it's a presumption to presume that prior to the lawsuit 
that we were out there to discuss this in relation to 
endangered species. As a matter of fact, I believe I've 
testified that as to those stipulations. What they did was 
essentially carry over, memorialized, formalized that which had 
already been discussed and negotiated on the annual operating 
plans, which is part of our responsibility as regulators.
    Mr. Pombo. Well, I would hope that over the course of time 
that you would discuss this with the permittees. I don't 
believe that is in question. I don't think anybody questions 
that; that over the normal course of business, you would 
discuss management issues with the permittees.
    Mr. Lohoefener, during the period of time before the 6 days 
before the settlement, did you or anyone in your agency have 
informal or formal conversations with the plaintiffs to discuss 
what a possible settlement would look like?
    Mr. Lohoefener. No, I did not, Mr. Chairman, and to the 
best of my knowledge no one in the Service did.
    Mr. Pombo. So, what I'm to understand from the testimony, 
the Fish and Wildlife Forest Service, and the Justice 
Department is that the plaintiffs came in with a draft 
settlement that you did not--had not seen before the 6 days 
prior to the settlement, and you sat down with them to 
negotiate that at that point. You're tes-

tifying here, before Congress today that, to the best of your 
knowledge, you had not seen or discussed the draft settlement 
before that 6 days before the settlement occurred?
    Mr. Lohoefener. Yes, I am, Mr. Chairman.
    Mr. Coppelman. I'm going to check, Mr. Chairman.
    Mr. Pombo. Ms. Towns?
    Ms. Towns. We've testified that we have not--we didn't 
participate in those discussions with plaintiffs.
    Mr. Pombo. Mr. Hayworth.
    Mr. Hayworth. Thank you, Mr. Chairman, and I thank the 
Subcommittee's indulgence in allowing us to come in today, and 
my colleague from Arizona and I, and I appreciate by time on 
the full Committee in the 104th Congress. And, I'm listening 
with great interest to some of these comments. Again, as I'm 
more than eager to point out, JD does not stand for Juris 
Doctor. I'm not a lawyer, never played one on TV, and, yet, we 
hear from one of my Arizona friends what, in essence, can be 
called a ``chilling effect.'' That the mere threat of 
litigation leads to actions presumptive in nature as to exclude 
cattle from certain areas because of the threat that something 
someday might happen.
    So, in essence, I believe, Mr. Menges, is it safe to say 
that it's your notion that a ``chilling effect'' has come 
about?
    Mr. Menges. Absolutely.
    Mr. Hayworth. Mr. Coppelman, what is the name of the trial 
attorney who should be here today? I think of Mr. Bason's 
remark about that fellow, not me, earlier this afternoon. You 
know, it's not me. We're not involved in this. I didn't have 
personal involvement. Who is the trial attorney who should be 
here today?
    Mr. Coppelman. The trial attorney who was on the case is 
Chrissy Perry.
    Mr. Hayworth. I'm sorry?
    Mr. Coppelman. Chrissy Perry.
    Mr. Hayworth. Chrissy Perry. Again, I guess that was not 
your call as to who was here, but, and I don't want to suggest 
to the chairman how to run the Subcommittee, but it might be 
good to try and get Ms. Perry into some of these discussions 
because, although we've heard, well, we're not certain about 
formal negotiations, I think it's safe to infer that, through 
the parsing of statements, there are probably some working 
documents and some ideas, whether drawn up on the back side of 
napkins or legal pads, somewhere--probably, some sort of 
working documents or drafts were circulated. But, again, I 
understand you can't answer because you weren't the trial 
attorney involved, and we probably need Chrissy Perry here.
    Mr. Menges, let me go to your stewardship of the land 
because--and I do wish that Dr. Ohmart, our fellow Arizonian, 
were here. I saw him earlier. I'm not sure if he's still here 
with us in the gallery--in the audience today. But, it's very 
interesting to look at your photographic evidence that seems to 
show us good stewardship of the land including areas where 
cattle have grazed. Could you go into more detail on what 
you're able to do and why you're able to win an award and why 
on earth, now, they'd tell you to get out?
    Mr. Menges. Well, they told me to get out because it's 
potential habitat for one fish species and one bird species--a 
cactus ferrigimous, pygmy owls, and razorback suckers.
    Mr. Hayworth. So, just a second. It is potential----
    Mr. Menges. Right. Neither of the species exist there. But 
the biological opinion that came out as a result of the lawsuit 
by the Southwest Center stated that if cattle were grazing in a 
riparian area that they were taking these species. Therefore, 
the BLM said that they had no alternative but to implement the 
terms and conditions of the biological opinion. I was sent a 
full force and effect decision in which I have appealed; 
although, by it being full force and effect, it remains in 
effect for the duration of the appeal. And we have appeals in 
Arizona that have been before the interior board of land 
appeals for--since 1991, and haven't been heard.
    Mr. Hayworth. So appeals that have been in the hopper 
since--for 7 years now?
    Mr. Menges. Right.
    Mr. Hayworth. Most times when they're criminal cases, the 
statute of limitations would expire, I believe, sir.
    Mr. Menges. With regards to the stewardship question, I 
believe we've done some things with grazing that you couldn't 
do without grazing the areas. After a flood event you'll find 
vertical cuts in the banks. We put cattle in there and rounded 
those cuts off so that vegetation could grow on them. They 
can't grow when it's vertical. We reduced some fireloads in 
there. The annual vegetation is very thick back under the 
mesquite bosque so you can reduce the danger of fire which 
would--could be devastating to habitat.
    We've had some success at reducing salt cedar invasion, by 
grazing in the winter; not putting salt out for the cattle. We 
have been able to get them to eat the salt cedar. It tastes 
salty to them. And, so that's a non-native species that the 
agencies are very concerned about invading.
    I think of a riparian area like any other area. The 
fundamental principles of range management apply and you can 
use livestock as a management tool to achieve your objectives. 
They can work in the seeds. Think of a person's yard, for 
example. You mow your grass, you prune your trees, you 
fertilize, then you do it all over again, and cattle can be 
used as a livestock management tool to do those things, and, I 
think we've seen the results here because this area on my 
allotment was one that was brought into proper functioning 
condition, as I mentioned. And some of the areas that had had 
livestock completely eliminated were not in PFC the first time 
the BLM monitored this 29 mile stretch of river.
    Mr. Hayworth. Just one final note, and I appreciate the 
indulgence of the chair. How much work is involved in trying to 
be a good citizen and do the right thing? I mean, the 
photographic evidence here is compelling. Do you feel you've 
gone the extra mile to be a good citizen? Are you, basically, 
being slapped in the face by these presumptive regulations?
    Mr. Menges. This is an area--I live close to town. There is 
private lands above my allotment. There is private land below 
my allotment that belongs to other ranchers. We have to 
maintain those fences across those--the river between the 
private land and the public land. Every time the river rises, 
we have to go back and do that, and put the cattle out. There 
is a lot of recreational activity in this area--leaving the 
gates open--cattle getting in, so it is a lot of work to keep 
cattle out of these areas.
    I've always had the incentive to do that because I would be 
rewarded by being able to graze this area in the winter. But 
now, there's really not any incentive. We just have the heavy-
handed approach--the Federal Government--saying that if you 
don't keep all the cattle out of there, if you don't maintain 
the fences, then you risk losing your permit.
    Mr. Pombo. Mrs. Chenoweth.
    Mrs. Chenoweth. Mr. Menges, did I understand you to say 
that the Forest Service asked you to intervene in the grazing 
litigation?
    Mr. Menges. Yes. We received--Doc Lane of the Arizona 
Cattle Growers' Association received a phone call from Region 
3--I do not know the individual. I could find out the name. Mr. 
Lane then called the officers, and I'm one of the officers of 
the Association, and said, the Forest Service has been in touch 
with us. They say that they think we may be in some trouble on 
this preliminary injunction, that we need to get intervenor 
status in both suits. I think we may have had it in one suit at 
the time. We went out and got the intervenor status. And make 
no mistake, the information that you received earlier was 
correct. The Cattlemen's Associations were contacted before the 
court hearing about an agreement that had already basically 
been, I suppose, drafted. I don't think we saw it, but our 
attorneys told them if that's what it said, certainly we would 
not sign on to it. Then, at the hearing, when the court 
rejected that as a stipulation, the Cattle Growers' 
Association--well, that was basically the end of the hearing 
and the Forest Guardians and the Forest Service went into a 
room right there in the court house. They did not ask the 
Cattle Growers' Associations to participate. They cut the 
agreement in that room. That is now the agreement that the 
Forest Service is using as a basis for altering the annual 
operating plans on the permit--for the permittees and excluding 
the grazing off of these allotments.
    Ms. Towns. Mrs. Chenoweth, Congressman?
    Mrs. Chenoweth. Yes.
    Ms. Towns. I was just wondering if I might respond to that?
    Mrs. Chenoweth. Yes.
    Ms. Towns. The stipulations--and this may be about the 
third time that I've said this, but it seems to be important to 
repeat. The stipulations memorialized what was in annual 
operating plans that had been worked out since, in 1995, when 
we began to look and see that a number of those permits were 
going to expire in 1996 and we were instructed by the Burns 
amendment to do NEPA compliance on our entire workload.
    The stipulations--I asked that question specifically before 
we came here--memorialized that which had already been worked 
out. There were no deals cut. I think----
    Mr. Pombo. Would the gentlelady yield for just a minute? If 
the stipulations were annual operating procedures, why was the 
lawsuit filed?
    Ms. Towns. There are a number of technical reasons why 
others might choose to file a lawsuit. As I mentioned before, 
there were several layers of planning. We had embarked upon two 
of them and the final one when we were in the programmatic--the 
fourth plan level of planning--when we were into that process 
with Fish and Wildlife Service, the lawsuits were filed saying 
that we had not done site-specific environmental analyses in 
compliance with the ESA. We were on a track doing planning at 
one of two--at two levels.
    Mrs. Chenoweth. There's a difference, though, between the 
stipulated agreement and the settlement agreement. Yes. There 
definitely is. So, Judge Reduttle rejected the stipulated 
agreements.
    Ms. Towns. There is no settlement. The lawsuit is still in 
effect.
    Mrs. Chenoweth. There was a settlement agreement that the--
--
    Mr. Coppelman. Can I just say that the chronology is that 
the judge--there's a Federal district judge and a magistrate. 
The hearings were held in front of the magistrate at the 
direction of the Federal district judge. The magistrate was 
holding a hearing. During that hearing word came back from the 
judge that he was not going to sign the stipulation because the 
Cattle Growers were not on it. OK? So, then, the plaintiffs and 
the Forest Service and Department of Justice reached an 
agreement without--that would not have to be approved by the 
court. Then what happened was the Cattle Growers filed a 
temporary restraining order, that evening, to try to stop that 
stipulation from being enforced, and a hearing was held on 
that. The magistrate rendered a written--a fairly 
comprehensive--written decision denying--recommending that the 
TRO be denied.
    The same judge, who rejected the earlier stipulation, after 
the hearing, after the recommendation of the magistrate, 
approved the recommendation of the magistrate denying the 
temporary restraining order. That's what happened.
    Mrs. Chenoweth. Mr. Menges, do you believe that the 
settlement agreement simply memorialized practices, policies, 
and procedures already in place?
    Mr. Menges. I can think of three permittees that had their 
altered annual operating plans amended, right off the top of my 
head; just some of my friends, and the forest--the local forest 
rangers called a meeting and I attended that meeting at the 
Clifton Ranger district, and they talked about the changes, and 
people had changes to their annual operating plans right there 
that day that were the result of this agreement. And, they 
talked about how they were going to enforce it and they were 
going to hire somebody to ride and take pictures and see if 
they can find somebody that had let cows come into the river.
    Mrs. Chenoweth. And the parties that were affected with the 
changes----
    Mr. Menges. Yes.
    Mrs. Chenoweth. [continuing] were not a party to the 
agreement at all--this settlement agreement?
    Mr. Menges. Oh, no. These----
    Mrs. Chenoweth. Now did the Forest Service offer to pay 
your legal fees? I understand your legal fees were about 
$100,000.
    Mr. Menges. Between the two associations, no. We have to 
get that out of our members.
    Mrs. Chenoweth. Well, if you had agreed to the settlement 
would they have paid your legal fees?
    Mr. Menges. I don't know. I doubt it----
    Mrs. Chenoweth. Mr. Coppelman.
    Mr. Menges. This case----
    Mr. Coppelman. They were intervenors.
    Mrs. Chenoweth. So the Forest Service asked you to 
intervene?
    Mr. Coppelman. You get attorneys' fees if you beat us 
basically. And this case isn't over. And this case is only--all 
that's happened is that they--you know, were at the preliminary 
injunction stage. Nobody is entitled to attorneys' fees, 
nobody's applied for attorneys' fees. So I can't answer the 
question of who, ultimately, may get attorneys' fees in this 
case.
    Mrs. Chenoweth. So, how much will the plaintiff in these 
two cases--the Forest Guardians and FWCBD receive in attorneys' 
fees?
    Mr. Coppelman. I don't know whether they will and, if they 
do, I have no idea how much that will be at this point. I mean, 
it's based upon records that they submit to us--timesheets and 
all that kind of stuff--if they're entitled to attorneys' fees.
    Mrs. Chenoweth. So, in your opinion, they're entitled to 
attorneys' fees if they present proper records and costs?
    Mr. Coppelman. No. I said that they--if they are the 
prevailing party, as determined under the law, then they would 
be entitled to attorneys' fees, just like industry attorneys 
would be entitled to attorneys' fees. And we've paid plenty of 
money to industry counsel, as well.
    Mrs. Chenoweth. Will the intervenors--the cattlemen--
receive any reimbursement of their attorneys' fees and court 
costs from the government at all?
    Mr. Coppelman. I can't--that's way in the future and we'll 
just have to see how this case resolves itself and who 
submits--you know, makes a motion for attorneys' fees. I wish I 
could be more helpful, but I just can't right now.
    Mrs. Chenoweth. I have a lot of other questions, Mr. 
Chairman, but I will yield back my time that is up.
    Thank you.
    Mr. Pombo. If the gentlelady has other questions that she 
would like to ask at this time, we're nearly concluded with the 
hearing so you may go.
    Mrs. Chenoweth. Thank you.
    Mr. Pombo. I ask that she be given an additional 5 minutes.
    Mrs. Chenoweth. If the Cattlemen's Association sues to 
challenge a settlement in a separate suit, as the judge in this 
case has seemed to indicate that he would be suggesting that 
they can, will they ever get an opportunity to present their 
side of the case and their witnesses in court?
    Mr. Coppelman. Well----
    Mrs. Chenoweth. I mean are we going to be facing endless, 
out-of-court settlements----
    Mr. Coppelman. Where we are is the intervenors moved for a 
temporary restraining order. The temporary restraining order 
was denied. Now, they could have moved for--then for 
preliminary injunc-

tion. They could appeal. They haven't chosen to--they haven't 
tried to anything more.
    Mrs. Chenoweth. Do you feel harm has been rendered by this 
decision based on Mr. Menges testimony?
    Mr. Coppelman. Do I feel----
    Mrs. Chenoweth. Has there already been damage caused as a 
result of the decision and Mr. Menges' testimony that certain 
individuals are losing their privileges?
    Mr. Coppelman. I'm not in a position to judge that--what's 
happened to individuals. I mean, that--if Mr. Menges feels he's 
been harmed, I mean, clearly, in enforcing the Endangered 
Species Act, some cattle have been removed from Federal lands. 
Yes.
    Mrs. Chenoweth. Mr. Coppelman, did the court ever issue any 
order or decree that mandates the implementation of this 
settlement agreement?
    Mr. Coppelman. No. That's not the way it was presented 
procedurally. Procedurally, it was presented to the magistrate 
and the Federal district court judge on a motion--a temporary 
restraining order to prevent implementation of the stipulation.
    Mrs. Chenoweth. So there's never been an order or decree 
that mandates the implementation of this settlement agreement, 
then?
    Mr. Coppelman. A judicial order, no.
    Mrs. Chenoweth. Thank you. I have other questions I'd like 
to submit in writing.
    Mr. Pombo. Mr. Hayworth.
    Mr. Hayworth. Mr. Chairman, I just am cognizant of the fact 
that one of the key players, if you will, or participants, the 
trial attorney, was, for whatever reason, not here with us 
today. Might I suggest, commensurate with Congressional 
protocol and your discretion as the Subcommittee chairman, that 
we request of the trial attorney, and, indeed, our friends from 
the Department of Justice and the others involved in this to 
submit all written correspondence, and for that matter, 
informal correspondence, which may exist prior to the 
settlement of this case, involving the litigants, which may 
indicate whether or not there was some sort of pre-settlement 
established--or settlement established before the 6-day period 
that you've talked about. And, I would just--I would make that 
recommendation to you, and, of course, would be happy for you 
to formalize that in some way and I know that, I'm sure that 
our friends in the Justice Department would be happy to comply 
with such a request.
    Mr. Pombo. In conferring with counsel and the full 
Committee chairman, that will be taken under advisement.
    Mr. Hayworth. I thank you very much, Mr. Chairman. I'd like 
to thank those witnesses, especially my constituent from 
Arizona, for being here today.
    Mr. Pombo. We do have further questions that we will be 
submitting to you in writing--to all of you. I have a number of 
questions that I don't feel were answered here today and I have 
other questions that will be submitted to you. If you could 
answer those in writing in a timely fashion for the hearing, it 
would be of great help to the Committee and would avoid future 
hearings, at least on this.
    I thank you for coming in and testifying. Your testimony 
was very valuable to the Committee. I, again, apologize for the 
length of the hearing--the delay in the hearing, but we don't 
control the floor schedule. So. But, thank you all very much 
for being here.
    Mr. Hayworth. Thank you, Mr. Chairman.
    [Whereupon, at 5:44 p.m., the Subcommittee adjourned 
subject to the call of the Chair.]
    [Additional material submitted for the record follows.]
                      Statement of Jimmy R. Bason

    Let me start by thanking you Chairman Young and members of 
the Committee for the opportunity to speak to you today, 
although I would rather have my fingernails pulled out with 
pliers. But, you and your fellow Congressmen need to know what 
is happening to American citizens, American taxpayers who are 
working hard to raise their families. Unfortunately, my family 
and I are in the sorry position to be able to illustrate that 
story.
    I have owned a ranch in Southwestern New Mexico for 36 
years. Unlike many of my counterparts, I did not inherit the 
ranch. I grew up working on other people's ranches. I was able 
to put together my own operation after serving my country in 
the Air Force for five years. I had planned to pass the ranch, 
comprised of Federal, state and private land to my son, Brent, 
and his young family. We have begun that process and Brent 
placed himself heavily in debt last year with federally 
guaranteed loans to begin buying me out of the operation.
    Brent is 29 years old. He is the father of a three-year-old 
Typhen, who I call ``Jefe'' because he thinks he runs the 
outfit, and my newest pride and joy, one-month-old Cord. 
Brent's wife Stephanie worked on the ranch right up until 
delivering Cord last month. Immediately following the birth, 
she was up fighting with the Bureau of Land Management to allow 
our local 4-H group to use a building the agency had promised 
to let the kids use for summer projects.
    Our ranch is largely comprised of two (2) large forest 
allotments on the Gila Forest, which brings us to the topic of 
today's hearing, citizen lawsuits as provided for in the 
Endangered Species Act (ESA), the Clean Water Act (CWA) and the 
Clean Air Act. The Southwestern Region of the U.S. Forest 
Service, which includes 11 forests in Arizona and New Mexico, 
has become the hotbed of environmental litigation. Both the 
Forest Guardians and the Southwest Center for Biological 
Diversity have filed suits against the U.S. Forest Service 
under the ESA. Their initial attempt was to remove livestock 
from some 160 grazing allotments in New Mexico and Arizona.
    Please keep in mind that all FEDERAL GOVERNMENT permittees 
operate under the direction of and with the cooperation of THE 
FEDERAL GOVERNMENT on a yearly basis. Each year the permittee 
manages his allotment pursuant to an annually updated and 
signed agreement with THE FEDERAL GOVERNMENT.
    Instead of working with and defending us as well as 
themselves, we read in the newspapers that THE FEDERAL 
GOVERNMENT says cowboys haven't changed in 20, 50 or even 80 
years. If there is a problem on Federal lands, it is THE 
FEDERAL GOVERNMENT who has created it by not pursuing proper 
management and not allowing permittees to do what they know to 
be best.
    The radical environmentalists have no regard for the 
families or rural economies, which they will kill if their 
suits are successful. And, their agenda has nothing to do with 
the protection of any endangered specie or the environment. 
Cattle don't eat fish or birds and proper grazing management 
practices will allow for fish, birds and cattle. The radicals 
want to control the land and they are using citizen lawsuits to 
do it.
    At the present time our allotments are not a part of ANY of 
the ongoing citizen suits filed by radical environmentalists. 
However, that has not stopped the impact of citizen suits on us 
or many of our neighbors. My son and his young family are 
literally facing bankruptcy at the hands of THE FEDERAL 
GOVERNMENT who guaranteed the loan them the money to go into 
business. I know they are not alone in this crisis.
    We are part of the first 33 allotments in the Gila National 
Forest, one of the 11 forests in the Southwestern Region, to 
undergo environmental analysis as part of the National 
Environmental Policy Act (NEPA) process. The U.S. Forest 
Service (USFS) began the analysis with an initial scoping 
document in early March 1998. Given what I have learned since 
then, I have come to refer to this Federal agency, as well as 
all others as THE FEDERAL GOVERNMENT.
    Between the two allotments, we are authorized to run 450 
head of cattle year-round. Due to the drought that we have 
experienced over the past several years, we have voluntarily 
been running only 300 head, taking non-use on the balance. 
Brent and Stephanie were working with THE FEDERAL GOVERNMENT 
and all seemed well. We have documented monitoring for our 
operation for some 50 years and NEPA analysis was done about 
nine years ago. That all changed near the end of April.
    As part of NEPA our Sierra County Commission got involved 
in the process on behalf of affected permittees in the County. 
In mid April Brent told the Commission, in a public meeting 
attended by FEDERAL GOVERNMENT employees, that unless things 
changed, there would be no need for the Commission to go to the 
trouble. This was publicly confirmed by the FEDERAL GOVERNMENT 
employees in attendance.
    A mere nine days later that all changed. Brent was called 
in by what I now refer to as the ``bully squad.'' Brent was 
confronted by some seven different FEDERAL GOVERNMENT employees 
who told him that because of a court order resulting from a 
citizen suit filed by the Forest Guardians against the USFS, 
his permit would be cut to 92 head.
    First Brent informed the FEDERAL GOVERNMENT that there was 
no court order, rather there was a settlement agreement between 
the Forest Guardians and the USFS, which had no force of the 
court or the law. When they argued with him, he pulled out a 
copy of the settlement agreement, which I had obtained when I 
attended the hearing on the issue. That did not deter them.
    Brent then pointed out that the operation would not be 
economically viable at that number. He stated that he would 
need at least 200 calves to service the debt he had undertaken 
to buy the permit to marginally service the debt under THE 
FEDERAL GOVERNMENT's lending agency's guidelines previously 
agreed to. The ``good cop'' in the squad, then began 
negotiating on Brent's behalf. Pretty soon they had worked back 
up to 192 head. The good cop suggested that THE GOVERNMENT just 
go up the eight additional head to arrive at the number Brent 
needed, The ``bad cop'' absolutely refused. He said THE FEDERAL 
GOVERNMENT had been pushed around enough in the Northwest they 
weren't going to take any more. They had to do something 
dramatic and this was it.
    Brent left the meeting with no resolution. Among the 
reasons THE FEDERAL GOVERNMENT mentioned to justify their 
drastic cut was a computer model being used to assess carrying 
capacity. It appears that all the monitoring we have done over 
the past five decades has little or no value. This computer 
model, which THE FEDERAL GOVERNMENT now wants to call a 
calculator, has built-in assumptions such as the idea that 
cattle will not graze on a slope of over 40 percent. I don't 
know how many of you are familiar with the terrain in New 
Mexico, but no one has told our cattle they won't eat from a 
slope of more than 40 percent. They have been doing it for 
years.
    Additionally, many of the management practices livestock 
producers have employed over the years like placing mineral or 
supplemental feed in strategic locations are designed to ensure 
that the animals will utilize grazing throughout the allotment 
and maintaining equitable distribution of grazing. These 
management practices were not taken into consideration by the 
computer calculator.
    Another assumption is that cattle will not graze beyond two 
miles from any watering facility. That's something else nobody 
has told our cattle. Whole breeds of cattle are promoted for 
their ability to travel miles from water. Additionally, THE 
FEDERAL GOVERNMENT didn't even have correct information about 
where there were watering facilities on the operation. Some of 
that has since been corrected in THE FEDERAL GOVERNMENT's 
files, but incorrect information has already been provided to 
literally hundreds of people, many of whom are dedicated to 
removing livestock from the land.
    There is also the arbitrary decision by THE FEDERAL 
GOVERNMENT that only 35 percent of the forage can be utilized. 
AND, the computer calculator did not take into account all the 
kinds of forage available. No forage value was given for the 
browse, which the main forage source on these allotments.
    Brent was allowed to drive to Silver City to look at the 
model. Having learned his lesson about the ``bully squad,'' he 
took our range consultant, a former USFS employee, as well as a 
range specialist from the New Mexico Department of Agriculture 
(NMDA) with him. None of the three saw anything to support what 
THE FEDERAL GOVERNMENT was proposing to do with our allotment.
    As part of the NEPA process, we were told that each 
permittee had the opportunity to provide an ``alternative'' to 
be included in the second scoping document. The time line in 
which that alternative was to be produced was extremely short, 
especially when you consider that THE FEDERAL GOVERNMENT chose 
to undertake this assessment at the busiest time of year for 
livestock producers. We were able to secure a one-week 
extension through our livestock association and their attorney 
and presented our alternative. That alternative was printed in 
the scoping material published, but with the notation that it 
was not considered viable and would not be studied.
    THE FEDERAL GOVERNMENT has since decided that they would 
further study our alternative, but like the misinformation on 
the water, the seed has been planted and the trap has been laid 
for those who would do away with us.
    On June 9, 1998, THE FEDERAL GOVERNMENT mailed out over 600 
copies of their scoping alternatives to ``interested parties.'' 
Their aim was to make sure that all alternatives and issues 
relative to the 33 allotments were listed and they gener-

ously provided a 20-day comment period. When asked for a 30 
extension on the comment period for all permittees by New 
Mexico Lt. Governor Walter Bradley, THE FEDERAL GOVERNMENT 
granted an extension . . . but only for the Lt. Governor.
    THE FEDERAL GOVERNMENT still plans to issue 23 draft EAs to 
cover the 33 allotments on August 1, 1998. Lt. Governor Bradley 
has until July 30 to comment. I guess that tell us all how much 
THE FEDERAL GOVERNMENT values the participation of state 
government.
    THE FEDERAL GOVERNMENT says it cannot grant an extension to 
all permittees because their analysis must be completed by the 
end of the fiscal year. If the money for the analysis must be 
spent within the fiscal year, why did they wait until March to 
begin the process?
    Adding insult to injury, the Forest Guardians chose to hold 
their annual gathering on our allotment in mid June, after we 
have suffered through five years of drought. That Federal land 
is multiple use land and the Forest Guardians have every right 
to use it. However, now I am told that our allotments have some 
60 comments, while the other 31 have only 15 combined.
    As I said, the draft EAs are to be mailed out by August 1, 
with a 30-day comment period for recipients to ``vote'' on 
which alternative should be utilized. Brent has no illusions 
about which alternative will win the vote on our allotments. It 
will be alternative A, which allows for no grazing, but keeps 
all watering facilities and improvements in place. It does not, 
however, make clear who will pay to keep those improvements in 
place. Brent and Stephanie will certainly not have the money to 
do. In the end, it will be the American taxpayer, your 
constituents, who will pay the bill, just as they are paying 
the bills for these citizen suits.
    Between 1993 and 1998, some 75 suits have been filed in 
Arizona, primarily by radical environmental groups. Every time 
THE FEDERAL GOVERNMENT settles one of these suits, they turn 
around and pay the radicals for their court costs and attorney 
fees. There have been hundreds of thousands of dollars paid out 
by THE FEDERAL GOVERNMENT. During the Forest Guardians meeting 
in Kingston on our operation, their attorney quipped that he 
did not charge his clients fees, THE FEDERAL GOVERNMENT paid 
his bills. And we call these citizen suits?
    If THE FEDERAL GOVERNMENT doesn't pay, so-called charity 
groups do. According to an article from the Albuquerque Journal 
in August 1997, which I would like to request be made part of 
the record, the Philadelphia based PEW Foundation pumped nearly 
$700,000 into the Southwest for litigation between 1995 and 
1997. And, they are just one of the contributors. So much for 
citizen law suits.
    An additional problem with the citizen suit provisions is 
the way THE GOVERNMENT has reacted to them. As part of their 
latest litigation, the Forest Guardians filed for a preliminary 
injunction to remove livestock immediately from more than 100 
allotments in New Mexico and Arizona. At the request of the 
FEDERAL GOVERNMENT and after great expense and effort, the New 
Mexico Cattle Growers Association and the Arizona Cattle 
Growers Association gained intervener status in the case to 
protect the interests of the livestock producers. Although THE 
FEDERAL GOVERNMENT assured our organizations that they were in 
a good position to defend the case, immediately prior to the 
hearing they negotiated a stipulated agreement with the 
radicals that would have been extremely harmful to the 
livestock industry.
    Because we as interveners would not sign off on the 
stipulation, the presiding Federal district judge denied the 
stipulation. So, the Forest Guardians and THE FEDERAL 
GOVERNMENT simply and literally went into a back room and came 
out with a settlement agreement. This agreement is a piece of 
paper with no more value than a contract between two parties.
    THE FEDERAL GOVERNMENT, however, has told the press and the 
public and tried to tell permittees that they have a court 
order to destroy our lives, our families, our culture and our 
country.
    Based on the ESA, the agreement itself appears to be 
illegal. It covers potential critical habitat, potentially 
listed species, suitable habitat and suitable but unoccupied 
habitat. The ESA provides no authority for any of these. The 
potential critical habitat is especially frightening. Potential 
critical habitat is defined as anywhere a species might want to 
live in the next ten years. Suppose some bird or fish or bug 
decides it wants to live where your chair is sitting. Will you 
just step aside and find a new place for your office and for 
our government to hold hearings?
    The Forest Guardians are feeling pretty sly right now. At 
their Kingston meeting on our allotment, they announced that 
they would be flying over the fences THE FEDERAL GOVERNMENT 
agreed to build, taking photographs. They will then bring their 
volunteer troops in on foot to document that fences are down. 
Because THE FEDERAL GOVERNMENT will be violating their 
settlement agreement, the Forest Guardians will then file a new 
suit based on that violation and demand that cattle be removed, 
not because of the ESA, but because of a violation of a 
settlement agreement. Given the way THE FEDERAL GOVERNMENT has 
handled the situation to this point, there is little doubt in 
my mind what happens next.
    There was no way THE FEDERAL GOVERNMENT could hold up their 
end of that settlement agreement even in the beginning. There 
are so many elk in the Gila Forest that there is no way to keep 
them from tearing down fences. If anyone were interested in the 
truth, the truth is that the elk are doing tremendous resource 
damage. Even when all the cows are gone, there will be no 
improvement in the environment because of the elk.
    Additionally, the Forest Guardians made statements at their 
meeting about how ``boy scouts'' might cut fences or leave 
gates open. Any guesses as to the size and age of these ``boy 
scouts?''
    At the conclusion of the Forest Guardians three-day meeting 
in Kingston, gates were left open in every one of our eight 
pastures allowing livestock to roam over more than 100 square 
miles. Coincidence?
    I have been told that folks are walking our pastures that 
are being rested trying to find proof that cattle are in them 
out of the rotation prescribed by our grazing permit, even 
though our allotments are not the subject of current 
litigation. It doesn't take a rocket scientist to figure who 
will be among the targets of the next suits.
    If I sound bitter, it is because I am. I have told you a 
very personal story, but my story is no different than that of 
my fellow cattle producers throughout the West. THE FEDERAL 
GOVERNMENT tells us that they are not trying to put us out of 
business. I would ask, if you decided to cut their wages by 78 
percent, would they still think they were employed? Would they 
be able to pay their bills and feed their families?
    I taught my son not to be afraid of anything. But I am 
afraid and now I can't seem to make him afraid of what THE 
FEDERAL GOVERNMENT, our government, the government is doing to 
us.
    Nobody among us wants to harm the environment. Who could be 
against protecting animals? We have cared for the land and its 
creatures so that we could pass it on to future generations.
    We are hear to beg for your help to stop what is happening 
to us.
                                ------                                


  Statement of Robert Wiygul, Managing Attorney, Earth Justice Legal 
                  Defense Fund, Rocky Mountain Office

    Good afternoon. My name is Robert Wiygul, and I am the 
managing attorney of the Earth Justice Legal Defense Fund's 
Rocky Mountain Office, which is located in Denver, Colorado. I 
am also the attorney for Forest Guardians in the case in the 
Arizona district court which is the subject of this hearing. I 
appreciate the opportunity to be here and to give you my 
perspective on this case, and the settlement agreement which 
resulted from it.
    I'd like to address three basic points about this lawsuit 
and the settlement agreement. The first is that removal of 
cattle from river and stream corridors was and is absolutely 
necessary to address the damage that livestock grazing causes 
to endangered species and water quality on Forest Service lands 
in Arizona and New Mexico. Had the Forest Service not agreed to 
the measures in the settlement agreement, there is little 
question that the Court would have issued an injunction with 
much harsher terms. The second is that the settlement agreement 
was the bare minimum necessary to, in the short term, protect 
stream corridors and the species that depend on them for their 
survival. Over the longer term, there will need to be 
additional reform of grazing practices to protect these 
watersheds. Third, I would like to address the charges that the 
livestock industry was excluded from the negotiations over this 
settlement agreement. Those charges are simply not borne out by 
the facts.

The Forest Guardians lawsuit was a necessary response to what 
amounted to a crisis situation on Forest Service lands in the 
Desert Southwest.

    Stream corridors constitute the richest, most diverse and 
productive ecosystems in the southwestern United States, 
serving as home to hundreds of species, including migratory 
neotropical song birds and native fish. Although historically 
constituting just 1 percent of land in the Southwest, the 
habitats within these corridors--referred to as riparian 
areas--support an estimated 85 percent of desert Southwest 
species at some point in their development. During the course 
of the last century, however, 95 percent of these riparian 
systems have been degraded and destroyed. Unmanaged domestic 
livestock grazing has been one of the single most important 
factors in the precipitous decline of these ecosystems.
    For more than 20 years, the Forest Service has regarded 
riparian health as a top management priority on the 21 million 
acres it manages in Arizona and New Mexico; for more than 15 
years, the Forest Service has had standards and guidelines in 
effect to restore these degraded ecosystems; yet today, the 
vast majority of riparian areas on Forest Service lands remain 
in unsatisfactory condition. During that same period, the 
United States Fish and Wildlife Service (``FWS'') has listed 
one riparian-dependent species after another as threatened or 
endangered. To date, more than 20 southwestern species that are 
dependent on healthy riparian and aquatic ecosystems have been 
listed as either threatened or endangered, or are proposed for 
listing.
    The Forest Guardians lawsuit, Forest Guardians v. U.S. 
Forest Service, et al (Civ. No. 97-2562 PHX-SMM), focused on 
three species that are dependent on healthy streams and 
riparian areas: the southwestern willow flycatcher, the 
spikedace, and the loach minnow. There is no serious question 
that uncontrolled cattle grazing has decimated the riparian 
habitat critical to these species. The scientific literature 
and documentation from the U.S. Fish and Wildlife Service and 
the Forest Service all establish that grazing has altered the 
hydrology and vegetation of these species' habitat so severely 
as to drive them to the brink of extinction.
    The only means of recovering these areas to a fully 
functioning status is to remove cattle from them altogether.
    Despite this fact, the Forest Service's actions to remove 
cattle from this critical riparian habitat has been painfully 
slow and halting. In one case, for example, our research showed 
that fences which were to have been constructed as much as 
three years ago to protect riparian areas from cattle had 
simply never been built. In other cases, cattle were placed in 
riparian pastures after other pastures had been exhausted. In 
still other cases, cattle were present in areas from which the 
Forest Service claimed that they had been excluded. This 
failure to protect critical riparian habitat violated not just 
the Endangered Species Act, but also the National Forest 
Management Act. Just as significantly, the Forest Service had 
very clearly failed to comply with the consultation 
requirements of the Endangered Species Act with respect to 
grazing on these allotments.

The settlement agreement was the bare minimum necessary to, in 
the short term, protect stream corridors and the species that 
depend on them for their survival.

    The fact of the matter is that the Forest Service had 
simply not moved to carry out its obligations under the 
Endangered Species Act, and as a result it stood a good chance 
of losing in court. If the agency lost, the result would very 
likely have been a broad injunction against any continued 
grazing pending compliance with the Endangered Species Act.
    The settlement agreement that was ultimately reached in the 
case was a compromise, as are all settlement agreements. In 
essence it required the Forest Service to remove cattle from a 
number of stream corridors, perform habitat reviews in other 
stream corridors, and insure that trespass cattle were promptly 
removed from places they weren't supposed to be.
    These measures are not by any means overly protective. In 
fact, they constitute a bare minimum of safeguards for these 
endangered fish and birds. For the short term, they will help 
protect critical riparian habitat from further degradation. For 
the longer term, other measures will clearly be necessary. In 
the arid climate of the desert southwest, cattle grazing leads 
to erosion, changes in plant communities, and environmental 
degradation. Over time cattle numbers on Forest Service lands 
must be drastically reduced, and in some cases grazing must be 
eliminated altogether.
    This is not a pleasant prospect for the Forest Service, it 
is not a pleasant prospect for the ranching community, and 
although you may not credit it, it is not a pleasant prospect 
for me. But it is an inescapable fact that decades of abuse is 
catching up with the public lands of the desert southwest, and 
the law and the public demand that those abuses be reversed.

The livestock industry was invited to join in the negotiations 
over this settlement agreement.

    Finally, let me address the charge that the settlement 
agreement in the Forest Guardians suit was cooked up in secret, 
and somehow lacks legitimacy. The fact of the matter is that 
the New Mexico and Arizona Cattle Grower's Associations 
intervened in the lawsuit, and were invited to join in 
settlement discussions. They even participated in early 
settlement talks. Apparently on the advice of their attorneys, 
they pulled out of those talks. Had they chosen to participate, 
they would have been at the table. They did not, and their 
complaints of exclusion cannot lie comfortably in their mouths 
now.
    In addition, it is worth noting that the Cattle Growers' 
Associations requested that the Federal district court block 
implementation of the settlement agreement, and that court 
reused the request in very strong terms. The Cattle Growers 
could have appealed that decision or sought further relief, but 
chose not to. If they believed this settlement agreement was 
secret or illegal, their recourse was through the courts. The 
fact that they chose not to take that recourse says volumes.
    In sum, the Forest Guardians lawsuit was a necessary 
response to years of abuse of the riparian areas of the 
southwestern National Forests. The settlement agreement that 
was reached in that case provides a bare minimum of protection 
for these areas, and its terms were negotiated in broad 
daylight.
    Thank you for inviting me to testify here today. I welcome 
your questions.
                                ------                                


      Statement of Dr. Robert D. Ohmart, Arizona State University

    Good afternoon ladies and gentlemen of the House Resources 
Committee. Thank you, Mr. Chairman, for inviting me to testify 
today.
    Even though I am and have been employed by Arizona State 
University for the past 28 years, my comments today are my own 
based on my education and experiences. They in no way represent 
those of the University.
    I would like to begin with a brief background to give you 
some feel for the basis and foundation of my testimony. I was 
born in eastern New Mexico where my folks worked at dry-land 
farming, raising some cattle, and running some sheep. A large 
portion of my relatives pursued these vocations in the general 
area as well. Dry land farming was erratic at best and if the 
boll weevils didn't get the cotton the hail storms usually did. 
Ranching was similar and my father moved to Carlsbad, New 
Mexico to work in the potash mines shortly before I entered 
school.
    I received all of my primary and secondary education in 
Carlsbad. After graduation in 1955 I attended New Mexico State 
University thinking I was mature enough for a college 
education. Unfortunately that was not the case.
    I left college and worked for two years in the oil fields 
of west Texas. I worked on drilling rigs and ultimately became 
a pulling unit operator where we replaced joints of tubing or 
pumps on oil wells that needed refurbishing. After two years I 
returned to New Mexico State University where I began working 
on a BS degree in Wildlife Management. To broaden my training 
and to insure employment after graduation I took many courses 
in range grasses, range management and animal sciences. I 
graduated in 1961 and elected to continue my education at NMSU 
but now in the Biology Department. I completed my Master's 
Degree in 1963. Though my interests were primarily in wildlife 
(birds) I continued taking botanical courses such as range 
botany and plant ecology.
    I give you this background because most people on the 
street think college professors live and exist in ivory towers 
and have little or no connection with the real world. In many 
of my colleagues that is true, but my roots come from poor dirt 
farmers with little more than a fourth or fifth grade 
education. I have watched many a sunrise on my knees with a 12-
foot cotton sack strapped to my shoulder or standing on a 
pulling unit starting out of the hole with an 8,000-foot string 
of 2-inch pipe. I feel very connected to the real world and 
part of my heritage is a few cows, goats and chickens in my 
back yard in Chandler, Arizona.
    After my Master's degree I attended the University of 
Arizona, worked at the University of California in Davis, and 
eventually accepted a faculty position to develop a wildlife 
program at Arizona State University in 1970.
    Since then, my research has taken me over much of Arizona, 
California, New Mexico and west and south Texas. I have worked 
with virtually every Federal and state agency in the Southwest.
    In 1993 the Governor of Arizona appointed about 35 
scientists throughout Arizona and from all state and private 
entities to examine and rank ecosystems in Arizona at a level 
of risk. EPA provided the funding and we on the Technical 
Committee worked two years examining and ranking the risk level 
for all ecosystems in Arizona.
    We found that ecosystems at greatest risk in Arizona are 
wetlands, springs and streams. Domestic livestock grazing is 
one of the top three human stressors to these ecosystems. (The 
other two are water management (dams, channelization, 
riprapping, etc.), and groundwater pumping.)
    About ten to twelve years ago I became interested in small 
streams and their behavior since virtually all of the large 
streams in the Southwest have been so intensively managed for 
water yield. As I began to examine small streams it became in-

stantly obvious the impacts that grazing livestock where having 
on these stream systems. I immediately began reading and 
studying the scientific literature to determine what other 
workers had observed and documented relative to livestock use 
and their impacts.
    I then began to look for bench mark areas or streams that 
had no or very limited domestic livestock use. Not to my 
surprise there are few streams that had escaped heavy livestock 
use over the past 125 years that cattle have used the arid 
west. I began walking streams seeing what others had reported 
in the scientific literature and noting other types of 
ecological degradation as the result of heavy livestock use. 
Bench mark streams and streams where cattle have been excluded 
in the recent past helped me to reconstruct what the appearance 
of healthy streams should be.
    The photographs I show you today provide vivid evidence of 
the damage uncontrolled livestock have on riparian habitat. 
These are two photos on the San Pedro River taken from the 
Herford Bridge. The one with the cattle in it was taken by a AZ 
Game and Fish employee in June 1985 (Pat O'Brien). Cattle were 
removed from the river on 1 January 1987. So the second photo 
was taken 8.5 years after cattle exclusion from the same spot 
and in the same month (June 1995). You can see that recovering 
a riparian stream is possible, but it takes time and it takes 
will.

Why worry about riparian habitats? What is their importance to 
society?

    If southwestern civilization is to sustain itself it must 
have clean, reliable sources of water. Our riparian systems are 
vital to our survival in the southwest. When healthy they help 
dissipate floods, clean our water supplies and provide the 
greatest water yield through time. Healthy riparian areas also 
provide the highest water quality.
    These systems also are vital to the lion's share of 
wildlife in the Southwest. For example, 75 to 85 percent of the 
wildlife in the Southwest are obligate users of riparian 
systems. By that I mean that this wildlife would no longer 
exist in the Southwest if these habitats were obliterated. 
Another 15 to 20 percent of the wildlife use these habitats at 
some time or another throughout the annual cycle. So about 95 
percent of the wildlife in the Southwest use the riparian 
habitats.

How much riparian habitat is there?

    The most accurate data come from Arizona, but I strongly 
suspect that is very representative for the Southwest. There 
are 73 million acres in Arizona. There are 5,000 miles of 
perennial rivers in the State. There are 260,000 acres of 
floodplains along the above rivers or this acreage is capable 
of supporting riparian floodplain habitat. Thus, less than 1 
percent of Arizona is riparian habitat yet it is vital to more 
than three quarters of the total wildlife in the State. There 
have been a few streams excluded from livestock but their 
numbers are insignificant compared to the whole.

What condition of health are these habitats in?

    In 1991 EPA reported that riparian habitats were in the 
poorest ecological health ever in the history of this country. 
In general, their ecological health has only worsened over the 
past 7 years.

What is the most important ecological component for wildlife in 
riparian systems?

    The cottonwood/willow habitat is by far the richest 
wildlife habitat in the coterminous United States. This forest 
community is considered the rarest forest type by the Nature 
Conservancy.
    With the above background information in front of us I 
think I can now easily answer Chairman Young's question as to 
``Why has the USFS imposed new regulations on grazing on 
Federal lands in the area.''
    The USFS has not imposed any new regulations on Federal 
grazing permitters, it is only obeying the laws passed by 
Congress and beginning to better protect natural resources on 
public lands.
    I went to Tucson with the intent of testifying as an expert 
witness for the Conservation Groups and on my arrival I was 
informed that the USFS had stipulated to all the concerns of 
the Conservation Groups. Being a personal and professional 
colleague with many of the USFS personnel over the past 30 
years, I asked many of them why they had conceded to these 
groups. The answer was a simple ``All of these demands are in 
our planning and management proposals so the intent of the 
Conservation Groups was no different than what our intentions 
were. This action today only expedited our management 
intentions.''
    Mr. Chairman, we have in the past borrowed and destroyed 
abundant riparian resources from future generations. Unless we 
start making management changes today there will not be any 
riparian resources for future generations except for salt 
cedar. Wildlife will mainly be starlings, English sparrows, and 
pigeons. As a young-

ster I was taught that when you borrowed something to ALWAYS 
return it in better condition than when you borrowed it--
sharpen it or whatever.
    We are not doing that, Mr. Chairman, and if we are 
concerned about the condition of this earth for our future 
generations these types of management changes are imperative!
                                ------                                


    Statement of Jeff Menges, Second Vice President, Arizona Cattle 
                          Growers' Association

Introduction

    Mr. Chairman, my name is Jeff Menges. I am a fourth 
generation rancher from southeastern Arizona and I am currently 
serving as second vice-president of the Arizona Cattle Growers' 
Association (ACGA).
    I want to thank Chairman Young and the House Committee on 
Resources for holding this oversight hearing and for inviting 
me to testify on behalf of over 2,000 Arizona Cattle Growers 
regarding the use of the citizen suit provision of the 
Endangered Species Act to terminate grazing in the southwestern 
part of the United States. 16 U.S.C. 1540(g). I will utilize my 
time today by recounting for the Committee my own personal 
experiences with lawsuits filed by the Southwest Center for 
Biological Diversity and the Forest Guardians on BLM allotments 
that my family has been utilizing for nearly twenty years.
    This process is fundamentally wrong and has left ranchers 
disillusioned and has increased distrust of the agency 
personnel we must work with on our allotments. In the case I 
just mentioned the cattlegrowers were brought into the process 
by the agency and then we sold out by the same agency that 
enlisted our assistance. The Arizona Cattlemen's associations 
had expert witnesses prepared to testify as to the benefits 
that can result from grazing in riparian areas, that it is not 
always necessary to exclude grazing to ensure the continued 
existence of the species in question, and that excluding 
grazing could be potentially harmful to some of the endangered 
species. Unfortunately, these witnesses were never heard 
because the agreement that was reached between the government 
and the environmental groups quickly brought an end to the 
``hearing.''

Utilizing Federal Lands is Crucial to the Ranching Industry in 
Arizona

    First, I want to point out that the ability to continue 
utilizing Federal lands is crucial to the future of the 
ranching industry, particularly in Arizona. In our state, more 
than the Federal Government owns 73 percent of the land and the 
Indian tribes and these Federal lands are intermingled with 
state and privately owned lands. This intermingled land 
ownership pattern makes nearly every viable ranching operation 
dependent to some degree on the ability to utilize the Federal 
lands for grazing. This attack by the environmentalist groups 
on the practice of Federal lands grazing is having the effect 
of destroying the entire ranching industry in Arizona, an 
industry that currently provides beef for approximately seven 
million people. This ongoing and overzealous use of the citizen 
suit provision of the ESA is forcing hard working ranch 
families into removing their cattle from the very allotments 
they have spent their lives stewarding--allotments which are in 
better condition today than at any other time in history.
    For most ranchers, it is a lifetime goal to pass the family 
ranch to the next generation as our parents and grandparents 
have done for the past one hundred years. Good stewardship of 
the lands from which we make our living and which makes this 
possible is in the best interest of every ranching family. 
Nevertheless, there are a number of interest groups that make 
no secret of the fact that they intend to remove all cattle 
from the Federal lands in the southwestern part of the United 
States and they have found a method of utilizing the ESA to do 
just that.

Environmentalist Groups are Systematically Removing Cattle from 
the Southwest

    The following is a typical scenario of how the groups 
proceed under the ESA: First, the group determines the area in 
which it wants to see the cattle removed. Next, the group finds 
a species that occupies or could potentially occupy the area 
and petitions to get the species listed as ``endangered'' 
pursuant to the ESA. Then, the group files suit against the 
action agency, either the Forest Service (FS) or the Bureau of 
Land Management (BLM) under the citizen's suit provision of the 
ESA which provides: ``. . . any citizen may request to enjoin 
any person `alleged' to be in violation of the Act . . .'' 16 
U.S.C. 1540 (g)(1)(A). Typically, the group bases its suit on 
the allegation that the land management agency has not entered 
Section 7 Consultation as required for protection of the 
species and asserting that grazing con-

stitutes a ``taking'' pursuant to Section 9 of the ESA. Next, 
the group will ask the court to grant a preliminary injunction 
to prohibit any grazing activity until a decision on the merits 
can be made. The next step is for the environmentalist group 
and the land management agency to settle, out-of-court, whereby 
the FS or the BLM agrees to remove the cattle from the area and 
the environmentalist group agrees to drop the suit. More often 
than not, the environmentalists will obtain an award for costs 
and fees based upon a section within the ESA that provides 
authority for the ruling court to grant such awards whenever it 
sees fit. Id. at 1540 (g)(3)(B)(4). The group uses the fee 
award to finance filing its next lawsuit. This process repeated 
over and over again across the entire southwestern part of this 
country is effectively eliminating the entire ranching 
industry. In my own case, with more than 90 percent of my 
operation existing on Federal lands, assuming this trend 
continues, my only option is to take the remaining private land 
I have left, subdivide and sell it for real estate development.

The Land Management Agencies Fail to Defend Their Own Federal 
Lands Grazing Programs

    Recently, I was called as an expert witness in the U.S. 
District Court in Tucson, Arizona where the Southwest Center 
for Biological Diversity and the Forest Guardians were seeking 
a preliminary injunction precluding continuation of grazing on 
over one hundred Forest Service allotments in Arizona and New 
Mexico. The Forest Service requested that the Arizona Cattle 
Growers intervene in the process. Believing the Forest Service 
intended on defending its grazing program, and realizing that 
the injunction had the potential of putting our ranchers out of 
business, the ACG had no alternative but to request intervener 
status. Therefore, the ACGA intervened in the lawsuit at a cost 
to us and the New Mexico Cattle Growers of approximately 
$100,000 only to have the FS settle with the environmentalists 
``behind closed doors'' resulting in removal of cattle from all 
riparian areas. In this case, the cattlegrowers were neither 
privy to nor included in the negotiation process yet, the U.S. 
Department of Justice attorneys attempted to get the court to 
sign the negotiated settlement agreement. The court refused to 
sign the order but nevertheless, the FS is currently 
implementing the terms of the settlement agreement by modifying 
annual operating plans on Forest Service allotments. Something 
is drastically wrong with this process whereby standing to sue 
is as easy as alleging a violation of the ESA and where 
settlement agreements can be arranged without involving the 
affected parties in the process. A grazing permit represents a 
contract between the individual rancher and the government. I 
know of no other arena, which provides a mechanism whereby an 
outside interest, is allowed to alter or terminate a contract 
without consulting the affected parties. It is fundamentally 
wrong for the land management agencies to negotiate altering 
our grazing permits without including us in the process.

Litigation is Driving Public Lands Management Decisions

    A second suit that I want to address with the Committee was 
filed by the Southwest Center for Biological Diversity was the 
result of a Biological Opinion (BO) released by the U.S. Fish 
and Wildlife Service regarding the BLM allotments utilized by 
my operation and affecting approximately 1.6 million acres and 
288 BLM allotments. In this case, the environmentalists alleged 
that the BLM failed to consult with the Fish and Wildlife 
Service as required under the ESA. However, the released 
findings stated in the Biological Opinion established that 
cattle grazing was not adverse to any listed or potentially 
listed species and that cattle grazing would not adversely 
affect any potential habitat, thereby precluding the 
Consultation requirement. Nevertheless, the environmentalists 
alleged that grazing in these riparian areas constitutes a 
``taking'' of the pygmy owl and the razorback sucker both 
listed as endangered pursuant to the ESA. As a result, the BLM 
entered into a similar process I described above resulting in 
an agreement that forces me to terminate grazing on 
approximately nine miles of riparian area within my allotments 
despite the fact that there is no indication that either of 
these species occupy these particular riparian areas, nor have 
these areas been designated as critical habitat. Furthermore, 
the BLM admits that the riparian areas within our allotments 
exhibit an upward trend.
    In fact, I entered into a cooperative agreement with the 
BLM allowing me to implement a winter grazing program on these 
allotments due to the fact that the riparian area was in such 
good condition. The availability of this annual spring forage 
is invaluable to my ranching operation. I have been grazing 
this particular area under the agreement since 1990 and as 
recent as 1995 this was the only segment within the 29 miles of 
riparian area monitored by the BLM that was determined to meet 
the criteria for ``proper functioning condition'' (PFC).
    I have provided pictures, which illustrate the positive 
vegetative response in this riparian area. Clearly, these 
pictures show and the BLM cannot deny that we have effectively 
accomplished every environmental goal established by the BLM at 
the onset of the grazing program. Furthermore, in 1995, I 
received a ``grazing excellence'' award from the Society for 
Range Management for our efforts. Yet, despite the success of 
my efforts, earlier this year I received a Full Force and 
Effect Decision by the BLM ordering me to remove all livestock 
from these riparian areas for the next ten years (and 
presumably permanently). I filed appealing the decision, but 
pursuant to regulations governing such appeals, the order to 
remove my cattle remains in full force and effect pending 
decision on the appeal. 43 C.F.R. 4.477. Furthermore, the 
burden of proving that our livestock should remain on the 
allotment according to the terms of our cooperative agreement 
lies with the rancher. Assuming I have the resources to defend 
an agreement on one allotment, it's unlikely that I can 
continue to defend myself when the next challenge arises. It 
becomes obvious that the administrative appeals afford little 
relief to the average operator.

Ranchers are disillusioned by the Appearance of Impropriety 
Surrounding these Settlement Agreements

    This process of filing lawsuits only to romance the agency 
into backroom agreements with the environmental community has 
left ranchers disillusioned and created increased level of 
distrust of the agency personnel we have worked with for 
several years. Time and time again, the cattlegrowers have been 
invited to join in the litigation process by the agency only to 
be sold out by the same folks that asked for our help. We are 
astounded by the apparent willingness of the land management 
agencies, an arm of our Federal Government, to succumb to the 
demands of these opposition groups. To illustrate my point, I 
want to provide you with an example of how blatant this can be.
    On the morning following the hearing in Tucson in which I 
was called as an expert witness and which I referred to earlier 
in my testimony, I was sitting in a room at the hotel where all 
parties to the litigation were gathered for a continental 
breakfast. A local news program announced that ``one of the 
largest cattle removals in the history of the public lands 
would be occurring in New Mexico and Arizona.'' A large group 
consisting of Forest Service employees, Southwest Center for 
Biological Diversity and Forest Guardian members and their 
attorneys cheered and clapped the announcement of the previous 
day's settlement agreement between the groups. It was apparent 
to me on whose team those Federal officials were playing.
    The Forest Service and BLM remain under a legal mandate to 
maintain grazing programs, but it is apparent by the actions of 
the agency that there are many of these Federal land managers 
that give only lip service to such programs and would much 
prefer to see livestock eliminated from the Southwest. What has 
become even more painfully obvious to the ranching community is 
that more and more the land management agencies we have worked 
with in the past are aligning themselves ideologically with the 
extreme environmentalist groups that make no secret of the fact 
that it is their goal to remove all livestock from the entire 
southwest. Even more disheartening for us is the fact that 
without the ESA citizen suit provision and provisions for 
reimbursement of litigation costs much of this opposition 
activity would not be possible. Many of us have our life 
savings invested in our Federal lands grazing permits and now 
we are forced to defend them against parties who invest little 
to none of their own resources.

Conclusion

    The process is broken. Litigation is currently driving land 
management decision making and the ESA citizen suit provision 
is fueling the ongoing litigation efforts. The ESA is being 
used to zone for owls, suckers and a number of other species 
that absolutely do not exist and may not even historically 
existed in the area. Federal lands ranchers need relief from 
misuse of this process--these types of frivolous activities is 
not what Congress intended. The citizen suit provision of the 
ESA and the appeal process must be overhauled with 
consideration of the foregoing misuses in mind.
    Until recently, I had been a strong supporter of the BLM 
and its grazing and it distresses me to be in confrontation 
with BLM officials that I considered as friends but I have an 
obligation to my family to stand for what is right and to 
protect my family's future. I always believed that by caring 
for the land like my parents, grandparents and great 
grandparents did I was preserving an opportunity for my own

children to engage in this ranching lifestyle should they 
choose. But I am now convinced that if this ``runaway train,'' 
the ESA is not stopped, my children will not have that 
opportunity to earn their living by ranching.
    Thank you for this opportunity and, if you have any 
questions, I will glad to answer them.

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Statement of Renne Lohoefener, Assistant Regional Director, Ecological 
           Services, U.S. Fish and Wildlife Service, Region 2

    Mr. Chairman, thank you for the opportunity to discuss the 
Endangered Species Act, specifically the citizen suit provision 
of the ESA as it relates to grazing in the Southwest. I am 
accompanied by Tim Vollman, Regional Solicitor, Department of 
the Interior, for our Southwest Region.
    In spite of the abundance of litigation that the U.S. Fish 
and Wildlife Service (FWS) has faced in recent years, 
particularly in the southwestern portion of the U.S., the FWS 
remains a strong proponent of the citizen suit provision of the 
ESA. This provision plays an important role in ensuring that 
non-Federal entities--including states, counties, industry 
associations, environmental organizations and private 
citizens--have a say in the protection of species and their 
habitat, and provides a mechanism whereby citizens can ask the 
courts to examine whether agencies are appropriately 
implementing the ESA. However, it is unlikely that the citizen 
suit provision invites litigation against the Federal 
Government, as these suits could usually be brought under other 
laws were this provision absent in the ESA. In fact, the ESA 
citizen suit provision actually assists the government to avoid 
some lawsuits, since it requires plaintiffs to notify the 
Federal agency 60 days prior to bringing a lawsuit. The Notice 
of Intent to Sue (NOI) provision has enabled the government to 
avoid some lawsuits by responding during the 60-day period to 
the claims made in the NOI and to work with potential 
plaintiffs in other instances to address issues raised in NOIs.
    The situation in the Southwest is extremely challenging, 
not as a result of the citizens suit provision of the ESA, but 
due to the need to manage natural resources for which there are 
many competing demands in an area with extremely diverse and 
fragile ecosystems, large expanses of public lands, fast 
growing metropolitan centers, and scarce water resources. This 
situation has been further complicated by past problems in 
communication among Federal agencies and with the public, and 
by the extremely heavy and ever-increasing workload of the FWS 
and other agencies in this region.
    The complexity of the social, ecological and economic 
situation in the Southwest is not going to change. However, 
Federal agencies are already changing how they communicate with 
each other and the public, and how they work together to ensure 
compliance with the ESA. We are also working closely with other 
agencies to streamline the consultation process and to make it 
as efficient and effective as possible. As for our ever 
increasing workload, the President's FY 1999 budget requested 
an increase for FWS in Endangered Species funding of $2 million 
to support the additional staffing needed to ensure timely and 
efficient consultations, listing decisions, and recovery 
efforts in the Southwest.
    The FWS has made and will continue to make every effort to 
ensure that our decisions are scientifically based, that our 
priorities are driven by the needs of species, and that neither 
are driven by litigation. The ESA requires the FWS to make 
listing decisions solely on the basis of the best scientific 
and commercial data available. It cannot be, and is not, 
influenced by pending or threatened litigation. At the center 
of much of the litigation surrounding the listing program in 
the Southwest has been the FWS's listing priority system. The 
FWS is not challenged as much on decisions of whether to list 
as on decisions of when to list. A large backlog of listing 
actions resulting from the listing moratorium and funding 
rescissions several years ago required the FWS to prioritize 
its listing actions based on critical need, biology and the 
relative conservation benefit provided by each type of listing 
activity. To assist in assigning relative priorities to listing 
actions, each year since the listing moratorium the FWS has 
issued a Listing Priority Guidance (61 FR 64475) to prioritize 
types of listing actions such as emergency listings, final 
listing decisions, candidate status, petition findings, 
delistings and critical habitat designations. This 
prioritization has necessarily resulted in many cases where the 
FWS postponed listing certain species in order to pursue 
listing other species in greater need of ESA protection. The 
FWS has stood behind its listing priority system, which has 
withstood several court challenges, because it is based on 
sound science and conservation need. Operating without this 
priority system or failing to defend this system would likely 
result in more, not fewer, lawsuits.
    To ensure that litigation does not consume our resources 
and to be more responsive to other Federal agencies and the 
public, the FWS has instituted broad reforms in the last few 
years. These reforms have, in many respects, revolutionized 
species conservation in the United States and made 
implementation of the ESA more effective and efficient while 
providing greater flexibility and certainty to businesses and 
private landowners. The FWS has begun streamlining the 
consultation and permitting processes of the Endangered Species 
Program; strengthening our historical commitment to basing 
species conservation decisions on sound science through an 
improved peer review process; increasing the use of Candidate 
Conservation Agreements to remove threats and prevent species 
from needing to be listed as endangered or threatened; 
providing regulatory assurances to private landowners through 
Habitat Conservation Plans (HCPs) with the ``No Surprises'' 
rule and the use of new tools such as ``Safe Harbor'' 
agreements; improving monitoring programs under sections 7 and 
10 of the ESA; and increasing Federal agency, Tribal, State, 
and private sector involvement in species conservation.
    Specifically in the Southwest, the FWS and other Federal 
natural resource-related agencies have made a commitment to 
collaborate with each other, the public and Tribal, State and 
local governments under the umbrella of the Southwest Strategy. 
We are working diligently to improve communications with 
organizations that have typically brought litigation against 
us. By maintaining good communications with all interested 
parties, including open dialogue early in the decision-making 
processes, we hope to decrease the amount of future litigation 
and to use the energy and resources of all parties that is 
currently applied to litigation to work creatively and 
proactively to enhance natural resources in the region. For 
example, towards the end of bringing all agencies into 
compliance on consultation requirements under the ESA, a 
Southwest Strategy Work Group has just completed streamlining 
processes for the Federal agencies to address the near-term 
section 7 workload. In addition, public involvement is being 
undertaken, and agencies involved in the Southwest Strategy 
have recently been in contact with and sought feedback from 
various State and Tribal government and non-governmental 
entities. A tribal summit was also held in New Mexico to engage 
tribal members and governments in dialogue about natural 
resources and one is being planned in Arizona also as part of 
the Southwest Strategy.
    It is in part due to the groundwork laid by the Southwest 
Strategy that a possible injunction on cattle grazing was 
avoided on approximately 160 Forest Service allotments in 
Arizona and New Mexico. The Forest Service and FWS had 
committed to finding a new way of doing business in the 
Southwest and a Grazing Work Group was under formation as part 
of the Federal aspect of the Southwest Strategy, enabling us to 
come together quickly to consult on allotments identified in 
litigation by the Forest Guardians and the Southwest Center for 
Biological Diversity. This interagency group was not only able 
to expedite consultation on approximately 160 allotments that 
were the subject of the suit, but they were able to review and 
are near completion of consultation for 749 other allotments. 
Of those 749 allotments, only 21 required formal consultation 
because they fell into the category of ``Likely to Adversely 
Affect'' a listed species.
    In this consultation, no effects were found on listed 
species for more than 600 of the 749 allotments, and a 
determination of unlikely to adversely affect listed species 
was made for another approximately 110 allotments. The Forest 
Services's commitment to protecting species and ecosystems is 
evident in riparian areas, where grazing was not likely to 
adversely affect any southwestern willow flycatchers or their 
habitat. Furthermore, management changes called for on these 
and future allotments would be required of the Forest Service 
under section 7 consultation irrespective of this or any other 
litigation.
    As previously stated, in order to ensure that the FWS 
remains responsive to the needs of other Federal agencies and 
the public, and of the species, and to address our expanding 
workload, the Administration has requested a $2 million 
increase in our FY 1999 budget for the Southwest. This increase 
in funding will allow us to proactively work with partners to 
reduce the need to list species, continue to address the 
listing backlog, respond to hundreds of consultations for other 
Federal agencies, and work to recover species so that they do 
not need the protections of the ESA.
    The Service and numerous other Federal agencies have put a 
great deal of effort into getting the Southwest Strategy 
underway and are hoping to use it as an example of how we can 
do business in a more efficient and effective manner. We want 
to ensure that those individuals that make their living off the 
land can continue to do so, while also ensuring that native 
species and their habitat are protected on Federal lands, that 
our natural heritage is conserved, and that future listings are 
avoided. I am happy to report that we are currently headed in 
this direction. I hope I can report back to you in the near 
future that our efforts have been successful, and litigation in 
the Southwest has been reduced.
    Mr. Chairman, thank you again for the opportunity to 
testify on this issue. I would be happy to answer any 
questions.
                                ------                                


Statement of Eleanor S. Towns, Regional Forester, Southwestern Region, 
                          USDA Forest Service

Mr. Chairman and Members of the Committee:
    I am pleased to appear before the Committee today to 
discuss the implementation of the Endangered Species Act on 
grazing programs of the southwestern Region. I am accompanied 
by Dave Stewart, Acting Director of Range Management, 
Southwestern Region.
    Today, I will be giving a brief overview of grazing on 
National Forest System lands in general and the Southwestern 
Region in particular.

Overview

    The Forest Service has been managing rangelands for nearly 
100 years, and has a long history of partnership with livestock 
producers who rely upon National Forest System lands. In fact, 
grazing on Federal lands was one of the earliest resource 
issues to be debated in the United States. When the debate 
raged over whether livestock grazing would be banned from the 
Forest Reserves, Gifford Pinchot, the first Chief of the Forest 
Service, argued that grazing be controlled rather than 
prohibited.
    Then, as now, livestock grazing on National Forest System 
lands was based on scientific range research, first begun in 
1897 by the Department of Agriculture in the Cascade Mountains 
of Oregon. The Forest Service began to implement the concept of 
a ``special tract permit system'' (as it was then known) and 
began to collect fees in 1906 that were intended to pay for 
administration of the permit system. By developing concepts 
such as carrying capacity and grazing systems involving 
deferral and rotation, these early range scientists and 
managers laid the foundation for sustainable resource use.
    Today livestock grazing on National Forests reserved from 
the public domain is administered under a number of statutes, 
including the Granger-Thye Act of 1950, the Multiple-Use 
Sustained-Yield Act of 1960, the Forest and Rangeland Renewable 
Resources Planning Act of 1974, the Federal Land Policy and 
Management Act of 1976, and the Public Rangelands Improvement 
Act of 1978, among others. These laws augment the authority in 
the Organic Act of 1897 which established the Forest Service 
and directed the agency to regulate the use and occupancy of 
the forests to preserve them from destruction.

The Range Management Program in the Southwestern Region

    The Southwestern Region of the Forest Service, which 
consists of twelve National Forests and more than twenty 
million acres of Federal land in Arizona, New Mexico, Oklahoma, 
and Texas, is a large and diverse area with ecosystems such as 
the Colorado Plateau in Arizona and New Mexico, the Chihuahuan 
semi-desert in New Mexico, the Sonoran Desert in Arizona, and 
grasslands in Oklahoma and Texas.
    The range management program in the Southwestern Region is 
extensive. There are 1396 grazing allotments and 1658 permits 
which provide for about 2.1 million head months of grazing by 
cattle, horses, sheep, and goats. This represents about 18-
percent of the permits and 16 percent of the head months of 
grazing on National Forest System lands nationwide.
    Grazing in the Southwestern Region and elsewhere on 
National Forest System lands is authorized by a grazing permit, 
which is typically issued for a term of ten years. The permit 
specifies the number of cattle authorized to graze, the 
allotments where the grazing is to occur, and the season or 
time of use. The authorization regarding numbers and season of 
use do not obligate or guarantee that those numbers or seasons 
will be met each year. Through annual operating plans, grazing 
seasons and numbers may be adjusted for resource protection.
    The permit also sets forth the terms and conditions which a 
permittee must comply with when grazing livestock on National 
Forest System lands. For almost a century, courts have held 
that grazing on Federal lands is a privilege, not a right, and 
statutes governing this activity expressly state that issuance 
of a grazing permit does not limit or restrict any right, 
title, or interest of the United States in any federally owned 
land or resources.
    Decisions to issue grazing permits must be made in 
compliance with applicable laws. In addition to the laws 
previously noted, grazing on National Forest System lands is 
also subject to the requirements of the Endangered Species Act, 
the National Environmental Policy Act (NEPA), the National 
Historic Preservation Act, the Wilderness Act, the Clean Water 
Act, and other environmental laws. Decisions to issue grazing 
permits must also be consistent with the applicable direction 
contained in the land and resource management plan (forest 
plan) for the National Forest on which the grazing occurs.
    Evaluating the legal requirements applicable to grazing and 
the resource condition of lands where grazing is proposed are 
crucial to meeting our responsibilities as resource managers. 
The evaluation typically occurs as part of the environmental 
analysis required pursuant to NEPA and is required when a 
grazing permit expires at the end of its ten year term or when 
a permit is waived to the Forest Service as part of the sale of 
a ranching operation.
    In 1995, the Southwestern Region was faced with the 
expiration of 501 permits--covering 36 percent of its 1396 
grazing allotments--by the end of 1996. Under Section 504 of 
the FY 1995 Supplemental Appropriations Bill (Public Law 104-
19), Congress directed the Forest Service to develop a schedule 
for the orderly completion of the environmental analysis 
required by NEPA. In the meantime and pending the completion of 
the requisite analysis, Congress directed the Forest Service to 
issue new grazing permits on the same terms and conditions as 
the expiring grazing permits if the only reason not to issue a 
new permit was that the NEPA analysis had not been completed. 
Once the NEPA analysis had been completed, the Forest Service 
could make the adjustments to the permit terms and conditions 
warranted by the environmental analysis.
    The Southwestern Region developed a schedule to complete 
the NEPA analysis by 2001 on the 501 allotments as well as all 
allotments where there were apparent resource concerns 
associated with endangered species and the protection of clean 
water and riparian areas. The Region has made tremendous 
progress in completing the allotment analysis since the 
enactment of the FY 1995 Supplemental Appropriations Bill. 
Through 1997, decisions authorizing grazing pursuant to the 
NEPA analysis have been made on 294 grazing allotments. We 
project that we will complete decisions for another 287 
allotments in 1998.
    Changes in allotment management may be needed over time as 
new information becomes available; such has been the case with 
respect to species listed as threatened or endangered under the 
Endangered Species Act.
    In May 1996, the Forest Service initiated programmatic 
consultation on all the forest plans in the Southwestern Region 
regarding effects to federally listed threatened and endangered 
species. In June 1997, during this consultation, the Region 
issued special management requirements for seven of the listed 
species (loach minnow, spinedace, spikedace, razorback sucker, 
pygmy owl, southwest willow flycatcher, and Sonoran chub). The 
Region determined the management requirements were necessary to 
avoid jeopardizing these species or destroying critical 
habitat; these requirements were considered in the development 
of the Biological Opinion for the forest plans issued by Fish 
and Wildlife Service in December 1997. The 1998 annual 
operating plans which are appended to and incorporated as a 
term and condition of grazing permits throughout the 
Southwestern Region reflect the June 1997, special management 
requirements.
    In late 1997, the Forest Guardians and Southwest Center for 
Biological Diversity, filed separate lawsuits against the 
Forest Service, alleging the agency had violated the Endangered 
Species Act by allowing grazing to continue before site-
specific consultation with the Fish and Wildlife Service 
required under the Endangered Species Act had been completed. 
Approximately 160 individual grazing allotments on forests 
throughout the Southwestern Region were specifically identified 
in the two lawsuits.
    As part of an important agreement with our colleagues at 
the Fish and Wildlife Service, the Forest Service initiated 
site-specific consultation with the Fish and Wildlife Service 
in February 1998, for grazing on the 160 allotments listed in 
the two lawsuits and approximately 600 more allotments with 
habitat for threatened or endangered species. The consultation 
was scheduled to be completed by July 15, 1998. The completion 
date for consultation has been extended until next month to 
give permitters more time to comment on the draft biological 
opinion. This consultation is an unprecedented accomplishment 
and shows a high level of coordination and cooperation between 
the Fish and Wildlife Service and the Forest Service. We think 
this accomplishment is very important in that it provides for 
conservation and recovery of federally listed species while 
allowing some grazing (albeit at reduced levels) during the 
course of the consultation. The Forest Service has used its 
best efforts to involve ranchers whose permitted allotments 
were among the 160 named in the lawsuits in the consultation 
process to the extent such involvement was authorized under the 
Endangered Species Act.
    On March 3, 1998, Forest Guardians filed a motion for a 
preliminary injunction to halt grazing on most of the named 
allotments in their lawsuit pending completion of the site-
specific consultation. Subsequently, the Southwest Center for 
Biological Diversity also filed a motion for a similar 
preliminary injunction. In order to avoid injunctions of 
livestock grazing, the Department of Justice negotiated 
stipulations with both Forest Guardians and the Southwest 
Center for Biological Diversity to ensure that protection of 
habitat for threatened and endangered species would con-

tinue at least until the completion of the consultation on the 
allotments. The stipulations formalize management practices 
that were already being implemented. As part of the 
stipulations, the Forest Guardians and the Southwest Center for 
Biological Diversity agreed to withdraw their respective 
motions for preliminary injunction, which, if granted, could 
have forced the removal of livestock from the allotments 
entirely. We were aware of concerns expressed by the livestock 
industry which had intervened in these lawsuits and regret that 
they declined to sign the agreement. It was our view, a view 
shared by the Department of Justice, that the benefits of 
entering into these stipulations--including avoiding a possible 
court ordered injunction--outweigh any disadvantage.
    The consultation will soon be completed. We will continue 
to make progress on NEPA analysis and new allotment management 
plans. All of this takes time. Resolving the grazing situation 
in the Southwest is a priority of this Administration; in the 
President's FY 1999 budget for Forest Service range management, 
the President asked for $65.6 million, an increase of $20 
million over FY 1998. Part of the requested increase would be 
allocated to the Southwestern Region to address livestock 
grazing. The President's FY 1999 budget for the Forest Service 
includes $28.7 million for habitat management for threatened, 
endangered, and sensitive species, an increase of $3 million 
over FY 1998. A portion of these funds would be allocated to 
the Southwestern Region for use to restore habitat. Habitat 
restoration for these species in combination with improvements 
in livestock management help make it possible to recover 
endangered species so that they may be removed from the list of 
threatened and endangered species.
    We are committed to improving collaboration among the 
Federal agencies, states, local governments, tribes, and the 
public. It is our hope that in the future, improved 
collaboration among all parties will enhance sustainable 
resource management and reduce the polarization and litigation 
that currently is occurring in the Region.

Conclusion

    In summary, the Forest Service has been managing rangelands 
for nearly 100 years, and has a long history with livestock 
producers who rely upon National Forest System lands. The 
Southwestern Region manages a diverse and unique range of 
ecosystems and has an extensive range program. The Region is 
moving quickly to complete NEPA analysis, including 
consultation with the Fish and Wildlife Service for federally 
listed threatened and endangered species. Resolving the 
challenges in the Southwestern Region is a high priority for 
the Administration. We will continue to work closely with the 
Fish and Wildlife Service and the public to meet these 
challenges. Thank you for the opportunity to discuss these 
complex matters. This concludes my prepared remarks. I would be 
happy to answer questions.

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                Statement of Sandy and Marvalene Sanborn

    The following is a brief synopsis of the tangle of agency 
actions which threaten to put the Sanborn Land and Cattle 
Company (``Sanborn LCC''), an Arizona livestock company, out of 
business. In July 1997, the Forest Service told us that we 
could no longer graze the Salt River/Roosevelt Lake Pasture 
which is included in our allotment because grazing would harm 
the Southwest Willow Flycatcher (``SWWF''). For the past three 
years, we had removed our livestock during the nesting season 
but had been allowed to return in late summer. By closing the 
pasture, the Forest Service denied us access to our water 
rights in the Salt River. Due to the Forest Service's 
antiquated and unwritten policy of not allowing any range 
improvements until there is a final allotment management plan 
(``AMP''), we were prohibited from installing substitute water, 
and lost several head due to dehydration.
    For the last year, we have been shut out of this critical 
pasture, even more critical water--all due to a selectively 
applied Endangered Species Act (``ESA'') policy. The District 
Ranger's decision is on appeal but we as an elderly couple, 
simply could not do the physical labor to ride the cattle to 
keep them out of the pasture (with no fences to speak of) and 
deliver water as well.
    We acquired the grazing permit when we purchased the ranch 
in 1994. We are an older couple and our health has been 
directly harmed by the Forest Service's action, their treatment 
of us, and the stress of trying to understand and comply with 
regulatory decisions which make no sense. Sandy Sanborn 
underwent heart surgery shortly after the Forest Service closed 
the Salt River pasture in the fall of 1997 and postponed the 
surgery in order to try to deal with the Forest Service. The 
threat of losing the huge investment represented by the ranch 
and the home is too much to face alone and without help. We 
tell you the following experiences to show how the Forest 
Service's implementation of the ESA, is causing havoc, bears 
little or no relation to the resources or the species to be 
protected and requires congressional intervention.

The Grazing Permit

    Our ranch, like many in the western livestock industry, is 
our primary asset. We own, as Sanborn LCC, Grazing Permit 
Number 12-795 for the Sierra Ancha and the Poison Springs 
allotments located on the Tonto National Forest, east of 
Phoenix. Sanborn LCC is authorized to graze approximately 950 
cattle on two grazing allotments. However, we never have grazed 
the full permit numbers due to the last several years of 
drought. In 1997, we brought off an additional 50 head and in 
1998 agreed to reduce our numbers to 370 head plus yearlings.
    The Poison Springs allotment was originally divided into 25 
pastures, including three located on the Salt River which the 
Forest Service now collectively calls the ``Salt River/
Roosevelt Lake'' pasture. We were originally told that the 
pasture would be closed to grazing during the spring (April 15 
through July 31) in order to protect the SWWF, now listed as an 
endangered species. We complied with this direction and removed 
all of the livestock for the nesting season.

SWWF Habitat To Be Flooded

    When we bought the ranch, we also understood that the 
Bureau of Reclamation (``BOR'') proposed to expand water 
storage for the East Roosevelt Dam and Lake, and it would 
inundate part of the Salt River pasture for a few months every 
few years. The BOR proposal to increase water storage for the 
Phoenix metro-area is also being litigated but has been upheld.
    The partial allotment closure is contradicted by the fact 
that this pasture will be regularly under water by the BOR's 
expansion of the Roosevelt Dam to hold an additional 30,000 
acre feet of water. This will increase the surface area of the 
lake by more than 2,000 acres. While the pasture can be grazed 
when not under water, Forest Service, BOR and USFWS all 
acknowledge that the area will lose the trees which create the 
SWWF nesting habitat.
    We believe that due to the planned flooding of this 
pasture, the land along the Salt River was never designated 
critical habitat for the SWWF. Certainly, the USFWS reviewed 
and approved the flooding of this area and the loss of the 
suitable nesting habitat.\1\ The USFWS issued a non-jeopardy 
opinion approving the Bureau's projection of a total loss of 
this area as habitat for the SWWF.
---------------------------------------------------------------------------
    \1\ The USFWS also designated more than 300 river miles in Arizona 
as ``critical habitat'' for the SWWF--none of which are in or near the 
Sierra Ancha or Poison Springs allotments of the Tonto National Forest. 
62 Fed. Reg. 39129 (July 22, 1997); 62 Fed. Reg. 44228 (August 20, 
1997) (correction).

---------------------------------------------------------------------------
The Forest Service Decision

    In May 1997, the Regional office of the Forest Service 
issued Interim Direction to protect the SWWF (``SWWF 
Direction''). This direction was prepared and implemented 
without any public comment or notice and without amending the 
respective forest plans. In preparing this direction, the 
Forest Service relied on unpublished and now unavailable 
biologists' opinions, as opposed to hard scientific evidence, 
that there is a direct link between cattle grazing and 
parasitism of SWWF nest sites by cow birds. The same team 
ignored other scientific work calling into question the 
validity of this assumption. This direction called for the 
removal of all activities on the National Forests, including 
livestock grazing, recreation, and other human activity.
    In the summer of 1997, the Regional Forester directed the 
forests to immediately implement the SWWF direction. The 
District Ranger of the Tonto National Forest, based entirely on 
this direction, closed the Salt River pasture to all livestock 
grazing for the foreseeable future on July 22, 1997. To our 
knowledge, the District Ranger did not close any other pasture 
on the Tonto National Forest.
    When we first bought the ranch and the National Forest 
grazing permit, the Forest Service was in the process of 
developing an AMP for an entire drainage on the Tonto National 
Forest. Today, the Sanborn LLC AMP is still not final, even 
though the Forest Service completed a final environmental 
assessment, which was challenged for not being an environmental 
impact statement (``EIS''), and then published a final EIS in 
October, 1997.
    Based on the alleged threat of livestock to the SWWF, in 
July, 1997, the Forest Service closed pastures of the permit 
(renamed the Salt River pasture). This is very same area which 
will be inundated by the expansion of the East Roosevelt Dam. 
The irony is that even though USFWS declared the flooding of 
the SWWF habitat to be okay, the Forest Service used the SWWF 
as the reason to deny us both our grazing access and access to 
critical water rights by permanently closing the area to all 
livestock grazing. This decision completely disrupted our 
operation because it is located along the river and without 
access we cannot use the water we own.
    The District Ranger's decision to close the Salt River 
pasture occurred immediately after a ``tiger team'' from the 
regional office met with the District Ranger and her staff to 
demand immediate action. The team members castigated and 
threatened District Ranger staff members who objected to the 
direction due to lack of due process and questions about the 
biology.
    The Salt River pasture provides the primary source of water 
for the entire allotment and with the closure of the pasture, 
we have had to haul water on an almost daily basis. The Forest 
Service has adhered to a policy of not approving additional 
range improvements, such as water development or fences, until 
the AMP was done. This process was started in 1992, long before 
we purchased the ranch, and is still not complete. The Forest 
Service approved the AMPs for the other allotments included in 
the same final EIS in October of 1997. However, the Forest 
Service excluded our allotment shortly after their appeal of 
the decision to close the Salt River pasture. Thus, the Forest 
Service has put us in a lose-lose situation, with no access to 
water, during a drought, and no opportunity or ability to 
pursue other solutions.
    Despite our cooperation and efforts to work with the Forest 
Service, the Forest Service will not authorize any fences or 
water projects that will provide water to pastures where there 
is no natural water. The Forest Service's only reason is that 
the AMP is not yet final but that the same time, the Forest 
Service itself has delayed issuing the Sanborn LCC AMP, 
although it approved the AMPs for all of the other ranches 
covered by the EIS.
    Not until this year, after entering into an agreement with 
the Forest Guardians, did the Forest Service act to close other 
grazing allotments to grazing based on the SWWF direction. Now, 
we understand that several hundred permitters are also being 
forced to remove their livestock from riparian areas and 
related pastures, with little or no notice. The direction is 
not applied to other uses, such as recreation use, even though 
all uses were identified as harmful.
    We requested a stay of the District Ranger's decision, 
based upon the significant economic harm and the serious 
questions about the alleged connection between SWWF and 
livestock grazing. This request for a stay was denied, based on 
erroneous accusations leveled by the Supervisor's office that 
we had grazed the full permit numbers and refused to remove 
livestock during the drought. A few months later, the Forest 
Service decided to stay the entire appeal, an action for which 
they had no legal authority, on the basis that the USFWS would 
revisit its biological opinion. Sanborn LCC objected to this 
stalling tactic in a letter to the District Ranger and never 
received the courtesy of a response. The USFWS did revisit the 
biological opinion but did not change the prescription for the 
SWWF, which is closure of the pasture for the nesting season.
    The Forest Service claimed that it has delayed its decision 
on the Sanborn's AMP due to new information concerning the 
SWWF. This new information is not the U Bar Ranch data, which 
the Forest Service has discounted as not applicable. The 1998 
revised USFWS biological opinion only requires removal of 
livestock grazing during the nesting season, not year round. 
Thus, the USFWS biological opinion does not support the Forest 
Service's decision to close this pasture to grazing 
permanently.
    The Forest Service's actions cannot be supported on 
procedural grounds or scientific grounds. The SWWF direction 
was adopted secretly, despite express requirements in the law 
and regulations that such direction have public notice and 
comment. By comparison when the Forest Service tried to adopt 
direction regarding the red cockaded woodpecker or the northern 
goshawk, the Sierra Club prevailed in appeal on the basis that 
any such direction had to be adopted as part of a public 
process.

Assumption of Harm to the SWWF Contradicted

    The Forest Service has continued to discount the results of 
a five year study on the U Bar Ranch, which shows that grazing 
does not lead to greater parasitism and that SWWF is not harmed 
by livestock grazing. This year Forest Service biologists are 
reconsidering the presumed link between loss of nest sites and 
livestock grazing. Nevertheless, due to a combination of 
hostility to grazing program within the Forest Service and the 
threat of ESA litigation, Forest Service officials continue to 
remove livestock grazing on the basis of the ESA.
    The latest scientific evidence shows that the presumed 
connection between the decline of the SWWF and livestock 
grazing cannot be supported. The work done on the U Bar Ranch 
is the only study seeking to measure the relationship between 
grazing and the SWWF. It is debunking most of the assumptions 
now being employed by the Forest Service. Despite this credible 
new information, the Forest Service is ignoring the results of 
the U Bar study, on the assumption that the habitat is 
different, the Forest Service assumes that all cattle are 
harming the SWWF, without addressing the specific facts of the 
particular allotment.
    We pointed out that the allotment has dense stands of 
tamarisk where the SWWF nests and roosts and the cattle do not 
stand in the nest habitat, because they cannot trail through 
the trees and brush. The Forest Service's claim that the 
removal of livestock grazing is due to the USFWS direction and 
possible jeopardy opinion makes no sense, if USFWS has already 
approved inundation of this habitat. Moreover, it makes no 
sense to deny us the right to graze livestock when this area is 
not critical habitat and the Forest Service has failed to 
consider reliable scientific evidence that livestock grazing is 
not the cause of cow birds taking over SWWF nests.
    The Sanborn LCC situation was only exacerbated by the fact 
that the Forest Service states that it relied on reports from 
its biologists but those reports are not included as part of 
the appeal record, and the Supervisor declined to provide a 
copy of the report, although originally he agreed to do so.
    For the last year, we have suffered serious losses as a 
direct result of the Forest Service's mechanical application of 
the SWWF Direction--which itself was (a) admittedly based on 
incomplete information, (b) adopted in secret, without the 
procedural protections guaranteed by the National Forest 
Management Act, Federal Land Policy and Management Act, and the 
National Environmental Policy Act; and (c) apparently so weak 
and biased that the Forest Service will not release the actual 
data allegedly supporting the closure of the pasture.
    We have completed the administrative appeal process and are 
awaiting a decision. However, given the Forest Service's denial 
of the stay request a year ago and its recent refusal to even 
disclose the biological report which was the basis for the 
decision to close the pasture, we are not optimistic. The 
Forest Service treatment of Sanborn LCC reflects an 
institutional hostility to livestock grazing and a willingness 
to sacrifice this industry.
    It is long past time for someone to bring common sense and 
fairness to the management of the National Forests. Many other 
livestock grazing permitters, like Sanborn LCC, face ever-
growing limits on their grazing permits which are adopted 
without any sound basis in science, fact, or common sense. 
Recent litigation and the mere threat of litigation appears to 
persuade the Forest Service to simply turn on the livestock 
industry and become a willing partner in the environmental 
groups' efforts to end all livestock grazing on the National 
Forests.
    We urge this Committee to begin drafting legislation to 
prevent the Forest Service from disrupting the legal rights of 
grazing permitters, without following fair and open procedures 
in the development of ESA management guidelines, and evaluation 
of which guidelines can be supported by science as opposed to 
emotion and political posturing. Unless Congress acts, the 
Forest Service will continue to sacrifice the multiple-use 
interests to the demands of a few who oppose ``impure'' uses of 
the Federal lands. Only seven years ago, the attacks were on 
the logging industry, which has largely disappeared from the 
Arizona National Forests. This year is livestock grazing. In 
the next few years, recreation use will be the target. We also 
urge the Congress to revise the Endangered Species Act so that 
it cannot be used as a tool by agencies to ignore the legal 
rights of long-standing permitters and land uses in favor of 
politically motivated litigants.
                                ------                                


  Statement of Brian and Deb Jennings, Lazy H Cross Ranch, C/O Irving 
                    Power Plant, Camp Verde, Arizona

July 28, 1998

Dear Representative Don Young,
    We would like to submit this letter as written testimony 
for record on the ERA hearing on 7/13/98.
    My wife and I have owned the Skeleton Ridge Allotment 
grazing rights on the Tonto National Forest for 23 years. We've 
operated on a rest rotation management plan for 18 years. 
Included with that is 18 years of trend monitoring, as well, 
that show our range conditions to be in an upward to stable 
trend in all aspects.
    In 1994 we decided to sell our ranch. In March of 1995, we 
asked the Forest Service to update our NEPA plan to cover the 
latest endangered species requirements, which would be required 
either to transfer or reissue our permit. It took two and a 
half years for Forest Service and Fish & Wildlife Service to go 
through the motions and come up with an opinion. The ``on the 
ground'' forest service people couldn't see or find any adverse 
effects from our current grazing plan or numbers. However, the 
Fish & Wildlife Service came back with an opinion of ``may 
effect but no adverse effect'' with real strict usage 
guidelines. They had NO sound science to back up their 
decision, which will greatly restrict the current grazing plan.
    In the last three and a half years, due to lawsuits and 
deal making between the Forest Service and numerous 
environmental groups to prevent lawsuits, new stricter use 
guidelines, deals to completely remove livestock grazing from 
designated occupied, unoccupied or potential habitat and all 
the unrest among the agencies, we have lost 5 or 6 (at least) 
potential buyers. When they talk to the Forest Service, they 
aren't given any answers as to whether or not grazing will be 
allowed and if so, whether it'll be at current numbers or 
reduced numbers. This push for proposed changes in Forest 
Service guidelines will force us or anybody who buys this ranch 
to likely lose a third or more of the grazing capacity and/or 
build at least 30 miles of fence which will have to be 
constantly maintained, rain or shine, in very rough country. 
This will cost more than the current value of the permit. We 
sure can't blame anyone for not wanting to invest in all these 
unanswered questions.

Case II

    My family and I also own Red Creek Allotment grazing rights 
adjacent to Skeleton Ridge. This ranch has been on the same 
type management plan, same monitoring system showing the same 
results and has the same endangered species. We also asked for 
the updated NEPA on this ranch in March of '95. As of to date 
we have no answer on this ranch either. One of the reasons we 
don't is the agency people are unable to come to the same 
decisions. Some say it should be a ``may effect with no adverse 
effects'' and the others just seem to want the livestock 
removed altogether from the Verde River. The only difference 
between Skeleton Ridge Allotment and Red Creek Allotment is a 
barbwire fence! Needless to say, we've lost numerous potential 
buyers on this ranch, also.
    In 1985 the forest supervisor, the regional director of 
Fish & Wildlife Service and the director of AZ Game & Fish 
signed an MOU to plant the Gila Top Minnow in some 60 sites in 
AZ in an experimently nonessential capacity with the biological 
opinion of ``may effect but no change in activity.'' A few 
years after they were planted the Forest Service began to fence 
livestock away from springs and other sources of minnow 
habitat. This year after 13 years of saying nothing, we are 
told that we have to fence off the remaining unfenced springs 
and/or streams before we can use the surrounding pastures. It 
has been seven months since we were informed of the decision to 
exclude livestock from these sites. To date none of the paper 
work is done to start any construction of alternative, 
dependable water (which we were promised) or fencing, and we 
are due to move into these pastures in a couple of weeks at the 
latest. This is going to cause us to have to stress (by 
overuse) the pastures we are currently in or remove numbers to 
avoid a take. This because no one is responsible for their 
decisions or their lack of actions.
    The AZ Game & Fish surveyed these sites and found NO Gila 
Top Minnows on Red Creek Allotment since 1987. However Fish & 
Wildlife and Forest Service will not give on their decision 
until more studies are done. Consequently, we're stuck in 
between with no answers. Very possibly, we will lose every 
thing in the end.

Case III

    My in-laws, Herschel and Ramona Downs, own the KP & 
Raspberry Allotments grazing rights in the Apache-Sitgreaves 
National Forest. They have been on this place for 45 years. The 
current management plan has been used for 13 years. Along with 
this they have also monitored, showing an upward trend for the 
same period of time. In 1995, their 10-year permit came up for 
renewal. The Forest Service proceeded to go through the motions 
of the NEPA process. But, with the big push to get so many 
permits renewed before they expired, the Forest Service came up 
with a computer model, from somewhere unknown to us, to set 
carrying capacity by. This model eliminated so much area as 
unsuitable, estimated carrying capacity so low, and restricted 
vast areas for occupied, unoccupied, and potential habitat for 
several endangered species, that it showed an 84 percent 
reduction in livestock numbers. All this was done from the 
office with no ground truthing what so ever. The trend 
monitoring, which had been done with Forest Service range 
staff, U of A range specialists, and the permittee was totally 
ignored. This reduction in numbers is from 225 head to 46 head. 
The EIS said there would be no adverse economic impact. But in 
reality this has destroyed Herschel and Ramona's life, 
financially and emotionally. Herschel is 85 years old and can't 
start over, has no income and nothing to sell except their home 
which was for retirement. They have nothing to pass on to their 
daughters and granddaughter. That is two families that have 
lost everything (their daughter and son-in-law ran the ranch 
for them). A way of life and a way to earn a living.
    They are going to sell their cattle and turn the permit 
back to the Forest Service because 46 head only earns 
approximately $10-$12 thousand annual income, at best. Two 
families can't run a ranch and live on that amount. One can't!
    If they take non-use to save a chance of getting it back 
after the court cases are settled, they still have to maintain 
all improvements (this entails some 200 miles of fence). Thus 
they would be liable for any unwanted livestock straying onto 
their permit and all restricted areas within. We understand 
harm to an endangered species to be a felony if prosecuted. Can 
you see an 85 year old man in prison because an elk tore the 
fence down or some jerk left a gate open and a cow got through 
to where she wasn't supposed to be?!
    If the Fish & Wildlife Service, Forest Service, and 
environmental groups aren't using the ESA to justify removing 
livestock, they should be willing to remove ALL threats to 
listed species, such as recreation, reintroduced predators or 
over populations of certain species. However, this is not 
happening.
    As you can see from these three cases, the ESA needs 
changed if we are to maintain life as or near to what it is 
now, economically and socially.
    We feel that many changes are called for in the ESA. Here 
are three good examples:
        1--All decisions concerning listings should be based on sound 
        science.
        2--Removal of one species should be followed by removal of any 
        and all other species that can and will do the same harm or 
        damage.
        3--Introduction of a species should only be done when it won't 
        endanger the survival of another species.
    We appreciate your efforts to help. Thank you for giving us this 
opportunity to testify.

Sincerely,
        Brian & Deb Jennings
                                 ______
                                 
Statement of Hon. George Miller, a Representative in Congress from the 
                          State of California
    Mr. Chairman, here we go again. Same hearing, different month, as 
we hear one more time about how the west is being persecuted under the 
Endangered Species Act. This time, it's the environmental community 
using the citizen suit provisions of the ESA to kick cattle ranchers 
off Federal lands with the cooperation of the Federal agencies. 
Moreover, the environmental groups are getting rich doing it.
    The facts do not seem to support those claims, however. The fact 
is, the Endangered Species Act requires all Federal agencies to consult 
with the Fish and Wildlife Service to insure that any action carried 
out by an agency, including the issuance of grazing permits, is not 
likely to jeopardize the continued existence of any endan-

gered or threatened species. Moreover, the Act imposes a substantive 
duty on the agencies to insure that any action authorized by the agency 
is not likely to reduce appreciably the likelihood of both the survival 
and recovery of the species.
    The fact is, cattle grazing, be it on public or private lands, can 
be extremely damaging to riparian habitat and, in many cases, the 
habitat that is needed for several endangered and threatened species to 
survive. In the case we will hear about today, the Forest Service has 
admitted that it had not conducted consultations on the permits 
allowing this grazing, and that this was a violation of the law. This 
suit was settled with an agreement that embodied the activities that 
the Forest Service had already planned to undertake to ensure 
compliance with the ESA. Moreover, as the Justice Department will point 
out, the situation was resolved without the burden of court ordered 
shut downs that have been common in the past. Instead, grazing is 
continuing to occur on the vast majority of Forest Service allotments.
    The fact is, if there are more lawsuits being filed in the west to 
enforce the ESA, it is not because the burden of the ESA has increased, 
or is being unfairly imposed on the west and not the east. It because 
species diversity and richness in the west and south is far greater 
than it is in the north and the east. Its because the population growth 
in the south and west is booming--all of the nations fastest growing 
regions are found in the south and west--placing more demands on scarce 
resources. Its because the demand for the use of Federal lands 
continues to increase, as private lands continue to be sold to 
developers to accommodate this growth. And its because local 
governments, developers, and the users of taxpayer-owned lands are 
constantly applying pressure on the Federal agencies to refrain from 
implementing the ESA. In fact, an ESA bill in the Senate is stalled 
because the Republican leadership is insisting that all language 
obligating Federal agencies to help recover species be deleted from the 
bill . . . . a demand which will, without a doubt, encourage more 
lawsuits.
    The fact is, as the growth in the Southwest continues to place more 
demands on public lands in this incredibly biologically diverse region, 
ESA related issues will increase as well. The rate at which the Forest 
Service and the Fish and Wildlife Service will be able to conduct 
consultations, make listing decisions, and carry out their 
responsibilities under the law will not not increase, however, without 
an increase in financial resources to address this growing workload. In 
turn, the environmentalists will continue to win their lawsuits. Not 
because the courts are more sympathetic, but because the letter of the 
law is clear and the courts are finding that it is not being applied, 
in large part due to this lack of resources.
    Ironically, this week we will be asked to vote on an Interior 
appropriations bill that does nothing to improve that financial 
situation for the Service and provide more expedient consultations for 
ranchers and others who wish to use public lands. According to an OMB 
letter, ``Under-funding the ESA as the Interior Appropriations bill 
does, will harm our ability to get species back on the road to recovery 
and off the ESA list. It will also result in an increase in litigation 
due to an inability to complete consultations, listings, and de-
listings in a timely manner.''
    If we want to do something to really solve ESA conflicts, we need 
to stop pointing to the Act as the cause of all of our problems and 
instead provide the agencies with the resources they need to do their 
job in a timely fashion. The majority of Americans support the 
protection of endangered species, and this law is not going away. Lets 
stop trotting out the same old rhetoric to make the situation worse and 
work together on getting the facts so we can do what the public elected 
us to do; reauthorize this law in a way that makes it better for both 
the species and the people.
                                 ______
                                 
     Statement of Leon Fager, USFS Retired, Rio Rancho, New Mexico
    Dear Congressman Miller:
    Please enter the following letter into the record of the upcoming 
hearing in July sponsored by Rep. Joe Skeen of New Mexico concerning 
the Southwestern Region of the Forest Service agreements to remove 
livestock from riparian areas.
    I recently retired, November 30, 1997, after 31 years in the Forest 
Service. My Forest Service career included assignments as a wildlife 
biologist on the Apache Sitgreaves and Black Hills National Forests, 
Regional Fisheries Biologist in Region 2, and the Southwestern Regional 
Threatened, Endangered and Sensitive Species Program Manager from 1992 
until I retired. Over the past 31 years, I have seen many changes in 
the Forest Service concerning our customers and the resources that we 
were charged to manage. My concerns and frustrations with the Forest 
Service in the Southwestern Region prompted me to take an early 
retirement and leave an organization that I once loved. I would like to 
share with you some of my experiences in R3 hopefully to give you some 
insight into why the Region is subject to an overwhelming amount of 
litigation, angry public and degrading natural resources.
    The Southwestern Region, over the years, has nurtured a strong and 
politically effective relationship with the timber and livestock 
industries. Budgets and targets, of course, help drive Forest Service 
programs and entrenched the Regional belief that timber and range were 
the two primary products from National Forest System lands and in fact 
are the Regions' core values. Other programs such as wildlife, fish, 
rare species, botany and water are considered secondary products and 
are generally seen as constraints on the timber and range programs. The 
publics that support wildlife, fish and rare plant programs are 
considered ``the enemy'' by many of those in leadership positions, 
including the current Director of Wildlife, Fish and Rare Plants.
    The role of the biologists in the Region is support for the timber 
and range programs with little opportunity to design and implement 
projects specifically to recover listed and sensitive species. These 
species are not valued by the Region's leadership and the only reason 
that so much energy and money is being spent on them now is that the 
Region has been sued numerous times with more litigation on the way, 
because of the Southwestern Region's apparent failure to follow the law 
and adequately protect rare species.
    Furthermore, the Southwestern Region's leadership see the lawsuits 
as an attack on the programs they value. The Southwestern Region's 
leadership and is spending millions of taxpayer dollars to defend a 
livestock grazing (range) program that has outlived its value and needs 
to be phased out as an inappropriate use of National Forests in the 
21st century.
    The impact, past and present, of livestock grazing on Southwestern 
National Forests is the major reason that ecosystems are deteriorating, 
species are near extinction and watersheds are losing much of their 
ability to yield high quality and quantities of water. The damage done 
by livestock is especially apparent in the Region's riparian 
ecosystems. Riparian areas make up less than 1 percent of the National 
Forests vegetation types yet support the majority of the Regions' rare 
animal, fish and plant species as well as providing water and 
recreation.
    Biologists, over the years, have voiced their concerns over the 
impacts that livestock were having on riparian systems in the 
southwest. Their concerns have been generally ignored by Regional line 
officers. This comes as no surprise because of the history of most of 
the folks in leadership positions who grew up with the traditional 
timber and range emphasis and they still maintain that same mentality 
today. Many feel that the current leadership in the Region is incapable 
of making hard decisions to meet the publics' demand for water, 
wildlife, fish, rare plants and recreation in the upcoming century. 
There are three rapidly growing metropolitan areas in the Region with 
most new residents relocating from the eastern U.S. The demands from 
resources from National Forests will be less timber and livestock 
production and greater demands for values other than livestock. As the 
publics in the Southwest become increasingly aware of the values of 
fish, wildlife, rare species and water they are demanding protection, 
recovery and restoration of rare species and their habitats on National 
Forest lands.
    These demands, often in the form of lawsuits, are seen by the 
Regions leadership as meaningless complaints from a minority of 
``radical environs,'' and after years of ignoring their own biologists, 
state wildlife agencies and the public, we taxpayers paying the cost to 
defend livestock grazing in the Region. The ineptness of the Regions 
leadership is also reflected in the reprisals to anyone perceived as 
challenging traditional management of the agency's core values.
    The Regional Leadership Team is incapable of being responsible and 
accountable for the conservation of the publics resources, including 
taxpayers dollars. They are out of touch with the public and do not 
have passion for restoration of degraded ecosystems. They threatened 
employees who speak out in favor of resources and they destroy their 
credibility. I know of many biologists and one deputy forest supervisor 
who were forced to leave the Forest Service, transfer or resign because 
they spoke out on resource and leadership issues in the Region. I know 
of a Fisheries Biologist who is barred from working on some Forests and 
Regional Task Groups because he criticized the Regions leadership in 
regards to riparian habitat management. I will be glad to furnish their 
names if you would like. The problems in the Southwestern Region relate 
back to the leadership.
    I would like to offer some suggestions that I think would help make 
positive changes in the Region:

          (1) Remove those line officers that demonstrate lack of 
        leadership or will to manage the resources on National Forests 
        as NATIONAL resources for the good of the public.
          (2) Carefully replace inept line officers with leaders that 
        are sensitive to ALL the publics. This means meeting with ``the 
        enemy'' environmental groups, finding common ground and working 
        together to restore ecosystems, watersheds and recover rare 
        species.
          (3) We can prevent much costly litigation if we had leaders 
        that follow the law and listen to the public.
          (4) Think about doing away with the ``line and staff'' 
        organization. Explore the use of successful organizations from 
        the private sector such as Saturn Motors. The Kaibab NF is 
        studying a new and more effective organization which they 
        discussed with the Gore Company, makers of Gore-Tex. They were 
        told that no matter what kind of organization they develop will 
        not work as long as the Forest Service is out of touch with 
        their markets and the public. In fact, the Gore-Tex folks said 
        that if their company was out of touch with their customers as 
        the Forest Service is they'd be out of business. The 
        decentralized line and staff organization allow for many little 
        fiefdoms bossed by many inept leaders.
          (5) Acquire leaders who will regain our lost relationships 
        with state wildlife agencies and environmental groups. Get rid 
        of those now in leadership positions who fester hostility 
        between the Forest Service and these groups.
          (6) Develop active partnerships between the Forest Service 
        and environmental groups such as the Southwest Center For 
        Biological Diversity, Forest Guardians, National Audubon 
        Society, etc.
          (7) Consider working with Congress to modify the Multiple-Use 
        Act to that of an Appropriate-Use Act. The Multiple-Use Act as 
        applied in this Region means ALL uses coming from the same 
        acre. This is why we're in trouble on our riparian areas.
          (8) Rather than just mitigating the losses of rare species 
        from grazing and timber management activities begin restoring 
        habitats to recover and delist species. This is what our Forest 
        Service Manual directs us to do.
          (9) Require that biologists become certified using The 
        Wildlife Society's certification process. The Forest Service 
        requires silviculturist to become certified before writing 
        timber prescriptions, biologists need to be certified before 
        authorized to sign Biological Assessments. This would reduce 
        the opportunity for forests to have range conservationists and 
        non-qualified biologists giving favorable findings under 
        Section 7 of the ESA to support range and timber.
          (10) Develop a program area of ecosystem restoration. This 
        should be the core program area of the Forest Service and 
        should drive all other programs.
          (11) Since our public lands are indeed important to the 
        public interest and are highly valued as a source of water, 
        recreation, wildlife and the protection and recovery of rare 
        genetic material needed by future generations, we should 
        consider the designation of a national commission similar to 
        the Federal Reserve appointed by the administration who makes 
        policy on public lands. This commission would be independent of 
        congressional and agency influence and would set policy based 
        upon the needs and desires of the public of the use of public 
        lands.
          (12) The Congress and the Forest Service must come to grips 
        with destructive livestock grazing, not only on riparian areas 
        but also on the adjacent upland watersheds. The damage caused 
        by livestock has resulted in untold costs both to the health of 
        these ecosystem but also to the economic health of communities 
        large and small which depend on water and recreation from 
        National Forests in the southwest. There are a number of 
        alternatives that could be implemented to lessen the impact of 
        livestock on southwestern national forests: (A) Do not restock 
        livestock on allotments that have been vacated and the permit 
        waived back to the Forest Service--retire these allotments from 
        grazing; (B) Design a ``buyout program'' possibly using grazing 
        fees and Federal Land and Conservation Funds to use as a pool 
        to compensate willing grazing permittees to waive their permit 
        back to the government and the allotment will be retired from 
        grazing; and (C) Designate an area of each National Forest 
        where livestock could be grazed under feedlot conditions. This 
        would reduce the damage to a small (less than one section), 
        allow the Forest Service to graze cows, thereby satisfying one 
        of their core values and provide a place for permittees to put 
        their cows. The taxpayer is paying for this but the taxpayer is 
        already footing the bill for uneconomical grazing; this would 
        at least reduce the cost.
          (13) Focus on watershed health, not just riparian. Costly 
        riparian fencing should only be used as a short-term emergency 
        measure.
          (14) No more Ecosystem Management (EM) lip service. Prove 
        commitment to EM through on-the-ground action.
          (15) Abandon management strategies that call for maximum 
        resource production.
          (16) Make Land and Resource Management Plans realistic in 
        terms of resource limitations and budgets. Integrate separate 
        resource proposals i.e. wildlife, water, recreation. Disclose 
        contingency plans for different budget levels.
          (17) Learn to just say ``no'' to demands on National Forests 
        which violate the law or detract from sustainability.
          (18) Set priorities when resource uses conflict, i.e. 
        recreation vrs wildlife habitat.
          (19) Monitor Forest Service actions and learn from mistakes.
          (20) Reward Forest Service employees for entrepreneurship and 
        risk taking. A study of the Forest Service reward system found 
        that the Service did not highly value these attributes but 
        rather rewarded employees for loyalty.
          (21) Tie Forest Service performance standards to measures of 
        ecosystem sustainability.
          (22) Do not accept the Forest Service excuse that elk and not 
        livestock are causing damage to riparian areas. Where there is 
        elk damage, it is very localized and due to the deteriorated 
        condition of the surrounding uplands, due to overgrazing by 
        livestock which force elk into riparian areas.
          (23) Require that a cost:benefit analysis be done on each 
        allotment and disclose to the public. The taxpayers are getting 
        ripped off, not only in environmental damage, but in our 
        pocketbooks too! An analysis of 3 allotments on the Apache-
        Sitgreaves show as total taxpayer cost for range improvements 
        to be $323,690 with an annual return from grazing permits of 
        $2168. At this rate it, without adding interest to the debt as 
        a private borrower would normally have to do, it would take 150 
        years to pay the taxpayer back for this debt.
          (24) Don't buy into the myth of ``folk economics'' that a 
        reduction in livestock grazing will cause small towns to 
        disappear, quite the contrary is true. It is well documented by 
        Dr. Tom Powers, economist, University of Montana, that when 
        small towns rely only on one or two industries such as 
        livestock and timber, their long term sustainability is highly 
        threatened. Many case studies reveal that when the mills closed 
        or livestock were eliminated as an industry, there was a very 
        short time period (18 days for Arizona and 25 for New Mexico) 
        for the growth of normal income to replace all jobs lost to 
        Federal grazing. In fact short term unemployment is considered 
        healthy to the overall economic health of communities because 
        new and diversified industry take the place of the traditional 
        ways of life. The Forest Service and politicians are actually 
        doing a disservice to these small communities and only 
        perpetuate this kind of ``folk economics'' to protect the 
        status quo and generally a few ranchers who want their way of 
        life continued and subsidized by our tax dollars.
          (25) Lastly and most importantly, decision-makers should use 
        their power to sway the Forest Service to use the best science 
        in making decisions for the long term sustainability of our 
        public lands. We hold these lands in stewardship for the long 
        term needs of future generations. Public lands need to be 
        restored for the benefit of endangered species, wildlife, fish, 
        recreation and clean water for our economic future.
    With an increasing population, the importance of our public lands 
for clean water, recovery of rare species, wildlife, fish, recreation, 
wilderness and scenic beauty is more important to our society everyday. 
Traditional extraction uses have to give way to nonextractive uses if 
our public lands are to support sustainable ecosystems. Old ways of 
thinking and managing these lands need to give way to using best 
science in the gentle stewardship of these national treasures. I think 
the American taxpayer is going to demand healthy ecosystems and a 
positive return on his dollar. Both are now absent on our public lands

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