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



 
                 HEARING ON THE ENDANGERED SPECIES ACT

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

                             FIELD HEARING

                               before the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             SECOND SESSION

                               __________

                  OCTOBER 26, 1998, CLOVIS, NEW MEXICO

                               __________

                           Serial No. 105-118

                               __________

           Printed for the use of the Committee on 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 October 26, 1998....................................     1

Statement of Witnesses:
    Bradley, Hon. Walter, Lieutenant Governor, State of New 
      Mexico, Santa Fe, New Mexico, as read by Mr. Dennis Roche..     4
        Prepared statement of....................................    43
    Budd-Falen, Ms. Karen, Counsel, New Mexico Cattle Growers 
      Association, Cheyenne, Wyoming.............................     9
        Prepared statement of....................................    44
    Cowan, Caren, New Mexico Cattle Growers......................    33
    Crook, Anna Marie, State Representative......................    39
    Derrick, Lewis...............................................    34
    Eppers, Bud, Chairman, New Mexico Public Lands Council, 
      Roswell, New Mexico........................................    18
        Prepared statement of....................................    52
    Fowler, Dr. John, Professor of Agricultural Economics, New 
      Mexico State University, Las Cruces, New Mexico............    16
        Prepared statement of....................................    68
    Frost, Bob, President, New Mexico Cattle Growers Association.    37
    Hahn, Carl...................................................    36
    Ingle, Hon. Stuart, New Mexico State Senator, Portales, New 
      Mexico.....................................................     6
    Lombardi, Sharon, Executive Director of Dairy Producers of 
      New Mexico.................................................    34
    Mallory, Bobbie, State Representative........................    38
    Mitchell, Karen..............................................    36
    Moore, Bill, New Mexico Department of Agriculture, Las 
      Cruces, New Mexico.........................................    21
        Prepared statement of....................................    57
    Pacheco, Manuel, Northern New Mexico Stockmen's Association, 
      Taos, New Mexico...........................................    20
        Prepared statement of....................................    55
    Pattison, Mr. Hoyt, New Mexico Interstate Stream Commission, 
      Clovis, New Mexico.........................................     7
        Prepared statement of....................................    63
    Payne, Tom...................................................    37
    Williams, John C., General Manager, Canadian River Municipal 
      Water Authority............................................    35



                 HEARING ON THE ENDANGERED SPECIES ACT

                              ----------                              


                        MONDAY, OCTOBER 26, 1998

                          House of Representatives,
                                    Committee on Resources,
                                                Clovis, New Mexico.
    The Committee met, pursuant to notice, at 9 a.m. in the 
Clovis Room, Holiday Inn, 2700 East Mabry Drive, Clovis, New 
Mexico, Hon. Richard Pombo presiding.
    Mr. Redmond. [presiding] I would like to begin by thanking 
all of the folks here on the east side of the state for coming 
out and some folks up from the south for the endangered species 
hearing today, and I want to welcome all of you to Clovis, if 
you're not originally from the Clovis area.
    And I want to recognize folks that are in the audience with 
us today. We have State Representative Anna Crook of the 64th 
District. And we also have State Rep Bobbie Mallory in District 
67.
    And am I overlooking anyone? Do we have any mayors or 
county commissioners?
    Mr. Schuler. I'm John Schuler, Clovis City Commissioner.
    Mr. Redmond. John, good to have you with us. And any other 
elected officials?
    Well, I want to thank the elected officials for coming 
because the Endangered Species Act has an impact, not only on 
the farms and ranches and businesses, but it also has an impact 
on--on where you are as an elected official and how you 
exercise--you execute your responsibilities as elected 
officials, so I want to thank you all for--for coming.
    And we also have Brian Thomas. Brian works for Congressman 
Mac Thornberry.
    And--but, anyway, without--without any further delays, I'm 
going to welcome Congressman Richard Pombo, my colleague from 
California, who has held almost 30 hearings across the--across 
the country.
    It's inevitable that there will be changes coming with the 
Endangered Species Act. There--You know, basically, people 
across the country are finding problems with it, the way that 
it's implemented on a regulatory basis. And I think it's always 
important, for those of us that represent you in Washington, 
that we come out to the field and we hear what you want us to 
say and do and write in our bills in Washington, DC. That's 
what representative government is all about; and, so, we're 
here listening to the people of the east side.
    We received some criticism about having the hearing over 
here and--from some folks in Santa Fe. And, you know, my 
response was, ``What is wrong with hearing from the people from 
the east side? They have a voice, and they're American 
citizens, and they're taxpayers and have every right to be 
heard.''
    So, I'll turn it over to Congressman Pombo.
    Mr. Pombo. The Committee on Resources will come to order. 
The Committee is meeting today to hear testimony on the 
Endangered Species Act. We will limit the opening statements of 
the members of the Committee so that we can get to the 
testimony from our witnesses here today.
    I would like to thank Congressman Redmond and those of you 
here for the opportunity to bring the House Resources Committee 
to the State of New Mexico. I look forward to listening and 
learning more from you about how the Endangered Species Act is 
being implemented and in force in the southwestern region of 
the United States.
    The chairman of the Committee, Congressman Don Young, the 
Congressman from the State of Alaska, sends his best regards 
and his regrets that he could not be here today. He asked me to 
chair this field hearing for him.
    In 1995, when a new majority claimed Congress, I, along 
with some of you in this room, had great expectations that we 
would be able to amend the Endangered Species Act and implement 
common sense approaches to species protection similar to those 
that the 1973 Act envisioned when they originally adopted the 
law.
    Congress believed that this law would be used to prevent 
the extinction of species. It never dreamed that it would be 
turned into a tool used by a small minority of people to impose 
Federal land and water use controls on rural America. Congress 
could never have foreseen the resulting widespread rural 
economic and social dislocations caused by such manipulation of 
the 1973 law.
    Some of the individuals that claim to be guardians of our 
environment turned down this Committee's offer to testify 
today. The staffs of this Committee and Congressman Redmond 
worked hard to get witnesses from the conservation community 
for the hearing. Written invitations and followup phone 
conversations were sent to the Forest Guardians, the Southwest 
Center for Biological Diversity, The National Audubon Society, 
and The Earth Justice Legal Defense Fund. Curiously, none of 
these groups has provided witnesses for today's hearing.
    Nevertheless, I fully expect harsh criticism by some for 
not having a balanced hearing. Let the record state that this 
Committee made every attempt to provide all possible interested 
parties with the opportunity of coming before it today.
    But this lack of response is not a total surprise. For the 
last 4 years, those of us on this Committee have worked to 
draft legislation in a common sense approach that would protect 
species and the rights of our citizens. Unfortunately, instead 
of sitting down with Congress to discuss the future of 
protecting the nation's species, the Clinton Administration has 
chosen to stand in the way of genuine efforts that would have 
brought about change.
    The ESA has been law since 1973. Currently, there are over 
1,100 domestic species protected under the law. The time is 
long overdue for the administration to work cooperatively with 
Congress to fix the ESA. It is outdated and many people believe 
broken. It is broken for the people, and it is broken for 
wildlife. It only succeeds at punishing those who do the most 
to provide habitat for wildlife--rural America.
    We are here this morning to listen to your ideas on what we 
can do to improve the current Endangered Species Act. I 
strongly believe that as this country begins to enter the 21st 
century, we must find a more balanced way to accomplish the 
goals of this outdated species protection act. Surely we can 
reduce the regulatory burdens of average Americans, small 
businesses, and state and local governments while still 
protecting our natural resources.
    I expect today's hearing to assist in this endeavor. As 
Congressman Redmond mentioned, I have had close to 30 hearings 
on the Endangered Species Act over the past 4 years. About half 
of those have been field hearings. The effort that we have made 
is to bring Congress to the people and to listen to those who 
normally don't have an opportunity to testify before Congress.
    When we are back in Washington, DC, we listen to the folks 
that have professional lobbyists, to the folks that have staff 
attorneys. They have access to us, they have access to the 
Committees, and they testify on a consistent basis. The folks 
that don't have that opportunity are the people who live out 
here and work for a living and don't have the opportunity to 
run to Washington and testify before a hearing every chance. So 
we have made a very real effort to reach out to rural America 
and to the folks that have not had an opportunity to testify in 
the past.
    As well, there has been some criticism on this particular 
hearing about the--the lack of scientists and--and others that 
are testifying here today. I can tell you that this Committee 
has heard from over 50 scientists, biologists, professors, 
folks that are self-proclaimed experts on the Endangered 
Species Act. Some have testified to status quo. Others have 
testified that they would like to see changes. But there has 
been no lack of input from the scientific community into the 
problems that currently exist with the Endangered Species Act 
and possible changes that they would like to see made in that.
    With that, I would like to offer Congressman Redmond a 
chance to say any additional comments he has at this point. I 
would like to call up our first panel to testify. The Honorable 
Walter Bradley, who I believe his designee is going to testify, 
Honorable Stuart Ingle, Mr. Hoyt Pattison, and Mrs. Karen--
Karen Budd-Falen, if you would join us up here at the witness 
table.
    I would like to thank you for joining us today. Committee 
rules allow you 5 minutes for an oral presentation each. The 
oral presentation is basically the part that you summarize from 
your full testimony. Your full testimony will be included in 
the record. But if you could try to limit it to 5 minutes, we 
would appreciate that.
    If you're not familiar with the lights that are in front of 
you, green means go, yellow means hurry up, and red means stop, 
similar to your traffic lights.
    So, if you would like to begin, identify yourself for the 
record, and you may proceed.

STATEMENT OF HON. WALTER BRADLEY, LIEUTENANT GOVERNOR, STATE OF 
 NEW MEXICO, SANTA FE, NEW MEXICO, AS READ BY MR. DENNIS ROCHE

    Mr. Roche. My name is Dennis Roche. I'm here presenting the 
testimony of Lieutenant Governor Walter Bradley from the State 
of New Mexico.
    Mr. Pombo. Thank you. Welcome.
    Mr. Roche. Good morning, Mr. Chairman and Congressman 
Redmond and welcome to New Mexico. Mr. Chairman, I also thank 
you for the opportunity to speak on behalf of the executive 
branch of the State of New Mexico. I will keep my testimony 
short and straight to the point.
    I have been Lieutenant Governor of New Mexico for 3 years 
and 11 months. As an ombudsman for New Mexico, I have been 
overwhelmed with the amount of constituent concerns I've 
received pertaining to the infringement and unbalance the 
Endangered Species Act has on private property rights, state 
sovereignty, and states' waters.
    The purpose of this testimony is to provide the concerns 
that the executive branch of New Mexico has with the Endangered 
Species Act. As you are all aware, New Mexico has been 
negatively impacted by the abuse and misuse of the ESA. For 
example, payment in lieu of taxes revenues, or PILT, generated 
from the use of U.S. Forest Service resources have been 
dramatically reduced. I don't have to explain to this Committee 
the critical need for these revenues to local governments for 
infrastructure purposes.
    Payments to counties have been affected by decisions 
relating to the spotted owl. Recently legislation was proposed 
to overcome this impact and stabilize payment to the states. 
Mr. Chairman, rural New Mexico is being hit hard, and 
hardworking families who have been lawfully making a living off 
the land for generations are being devastated. It won't be too 
long before urban areas become aware and are affected by the 
ESA.
    As Lieutenant Governor, I have a responsibility to the 
taxpayers of New Mexico. These people are concerned with what 
is occurring in our state. Let me make it clear. I am not 
against preserving a clean environment. I like to have clean 
water to drink. I enjoy the scenery when I travel throughout 
the state. I want children who are our future to enjoy what I 
have enjoyed.
    However, I believe that there are--that there needs to be a 
balance in the ESA, and decisions must be based on best 
available scientific data, not on unquestionable data or no 
data, as what appears to be happening today.
    As I stated earlier, private property rights, state 
sovereignty, and water are major concerns to the New Mexico 
executive branch. As for private property rights, the ESA 
allows Federal Government or citizen litigants to take property 
owners to court without evidence that these actions will cause 
a taking. The current ESA has no provisions for takings.
    Language should be incorporated to allow property owners to 
enter into agreements with the Secretary of Interior 
identifying activities and any potential takings. Also, 
property owners should be compensated as required by the Fifth 
Amendment of the United States Constitution.
    The encroachment of state sovereignty is also a major 
concern. Under the current ESA, states are often excluded from 
the listing process even though within state's borders there 
may be threatened and endangered species. As for the 
development of recovery plans, states have no role. States 
should be recognized and allowed to participate in all plans or 
activities such as recovery plans.
    Water in western states and specifically in New Mexico is 
critical. Nowhere in the ESA does it acknowledge state law 
regulation, rules, or any interstate compact covering the 
appropriation, use, or diversion of waters.
    Presently in New Mexico the Corps of Engineers and the 
Bureau of Reclamation are proposing an environmental impact 
statement. The purpose of this EIS is to comply with the ESA 
for the Upper Rio Grande Basin and it's rivers.
    Mr. Chairman, New Mexico receives approximately 80 percent 
of its water from this area. New Mexico is currently seeking a 
Joint-Lead status as allowed under the National Environmental 
Protection Act. Because this Act, or NEPA, is being 
implemented, and only because of this, an economic impact 
analysis is required as well as the impacts on the human 
environment.
    I would like the Resources Committee to know that New 
Mexico fully intends to become involved in this process. By 
becoming involved, the state will make sure that all data being 
analyzed will be sound. The question now is, what are some of 
the solutions to the concerns that have been identified?
    First of all, if any amendments to the ESA are going to 
take place, all states must be an integral player. It is our 
belief that states are more aware and knowledgeable of how to 
manage resources, species and habitat. The ESA should not act 
as a tool for zoning and land use.
    Second, state water laws, compacts, diversions and 
appropriations are being ignored. Language must be incorporated 
into the ESA acknowledging states' requirements and sovereignty 
regarding water.
    Mr. Chairman and Members of the Committee, New Mexico met 
with these Federal entities on October 16th, 1998. An article 
was brought to their attention that came out of the Albuquerque 
Journal a couple of weeks ago.
    And stop here.
    Mr. Pombo. No, go ahead and continue.
    Mr. Roche. Thank you.
    An article was brought to their attention that came out of 
the Albuquerque Journal several weeks ago. The title of the 
article is ``Forum May Not Stop River Compact Suits.'' In this 
article, Forest Guardians' Executive Director, John Talberth, 
states, ``Based on what I've heard today, there are certain 
aspects of litigation I think we should go forward with more 
quickly.'' The Federal response to this article at the meeting 
was that they all had resolved--they had resolved all issues 
with the Forest Guardians.
    Mr. Chairman, Members of the Committee, New Mexico has been 
there and has seen it. The Federal agencies meet with the 
environmental organization, cut deals, and then go out and do 
Environmental Impact Statements after the fact. As a result, 
the human environment is significantly impacted as well as the 
economy at both the state and local level.
    Environmental extremists, Mr. Chairman, are actually 
targeting operations of Federal dams, irrigation works, and a 
lot more in western states. And as I stated earlier, only 
because NEPA is being implemented will an economic impact 
analysis be conducted as well as an analysis on the human 
environment.
    The ESA should include provisions in addressing and 
analyzing the human environment and economic impacts. However, 
another provision should be added stating that decisions made 
should minimize the human environment and economy.
    The ESA must acknowledge state sovereignty, responsibility 
and obligation on water laws, rights and compacts. I believe 
that an impact analysis on the economy and human environment 
should be required under the ESA. We have got to find a balance 
between protecting species, habitat, our economy, and most 
importantly human beings.
    Thank you again, Mr. Chairman and Members of the Committee, 
to allow the executive branch of New Mexico to address their 
concerns here this morning.
    Mr. Pombo. Thank you.
    [The prepared statement of Hon. Bradley may be found at end 
of hearing.]
    Mr. Pombo. Mr. Ingle?

   STATEMENT OF HON. STUART INGLE, NEW MEXICO STATE SENATOR, 
                      PORTALES, NEW MEXICO

    Mr. Ingle. Thank you, Mr. Chairman. If you will look at--
notice my testimony here, I double-spaced it, and it's only, 
just barely, slightly over three pages because I know you get a 
lot to read and so do I.
    I'll just speak off the cuff a little bit about some of the 
problems I think we have, and we've got a lot of folks here in 
the audience that are in--are in and share those problems.
    You know, in New Mexico, we are a state that in many 
instances----
    Mr. Redmond. Use the mike.
    Mr. Ingle. Is this better?
    In New Mexico, we are a state that has varying types of 
climates. We have a--we have a lot of forests in New Mexico. We 
have a desert region. We have some regions that are even more 
desert like.
    The thing about environmental laws that I have noticed, 
like many laws that are written, you have a law that is written 
and then the--and then the department makes regulations that 
are actually--actually, basically, the law itself. It's 
difficult, I know, for Congress to pass very specific laws, but 
I think we need to be careful, as we do in the state--in the 
state legislature, of trying to pass laws where regulations can 
basically not just be written solely and as something that can 
dictate all policies and all laws.
    I think we need to look at the environmental things by 
region. There are certain regions of the United States that may 
have certain environmental situations, but the regulation very 
often is used and will make things a very difficult situation 
in a group of states where the regulation wasn't even meant to 
exist.
    We've got people here that have farmed and ranched in New 
Mexico for generations, people here from Taos, New Mexico, who 
have been there for many years. They have not abused that land. 
They never intend to abuse the land. The land is the only asset 
they have, and they will continue to take care of this land.
    And I think very often people in the environmental 
situation often think that landowners are about abusing things, 
abusing the land and abusing the animals and taking advantage 
of everything that is wonderful in nature. Well, you can't do 
that anymore, if you ever did.
    I know years ago the--all the Buffalo population of the 
United States was, you know, done away with in 20 years. Well, 
we don't have that situation anymore. Nothing in the United 
States, I believe, faces that kind of just wholesale slaughter 
or things being done away with.
    We have people in the United States and generations of 
people that want to look and keep things well for the next 
generation, for their children, because beauty is something we 
all look at very closely and very deeply now. And I don't think 
it's anything that we're going to do away with by carelessness.
    But laws and regulations also often mean the loss of land, 
the loss of any profitability the land has; and, yet, the man 
that has the land and his family get nothing. Because by the 
time everything is decided, he has been without the use of his 
land so long that it just basically has no value. It has no 
saveability except to someone for a useless industry, and they 
often don't have any money for that.
    Mr. Chairman, Members of the Committee, I--I think these 
are things primarily that we just need to try to watch for. And 
I understand, Mr. Pombo, you're in the farming and ranching 
industry yourself, and you're certainly aware that it's not 
exactly a cup of tea right now. And many people here are in 
that, too.
    You know, in this state we've suffered a tremendous amount 
of drought in this area. We also make so much grain in the 
United States anymore that it sells for 1949 prices, and those 
are things you can't fix by law or regulation.
    But when you have laws and regulations that are just put 
into effect without the real knowledge and caring about the 
people that are in the industry, those are the things that we 
need to watch for. And as you said, those people are never in 
Washington to testify. They're out trying to make a living.
    Mr. Chairman, Members of the Committee, thank you very 
much.
    Mr. Pombo. Thank you.
    [The prepared statement of Mr. Ingle may be found at end of 
hearing.]
    Mr. Pombo. Mr. Pattison?

 STATEMENT OF MR. HOYT PATTISON, NEW MEXICO INTERSTATE STREAM 
                 COMMISSION, CLOVIS, NEW MEXICO

    Mr. Pattison. Thank you, Mr. Chairman, Congressman Pombo 
and Congressman Redmond. We're proud to have you here today, 
and it's a pleasure and an opportunity to appear before you up 
here as a representative for Mr. Richard Cheney, who is the 
chairman of the New Mexico Interstate Stream Commission.
    I am also a member of the Interstate Stream Commission. I'm 
a farmer and an engineer. I live north of Clovis, right here in 
Curry County. I would like to call your attention to some of 
the history of the Endangered Species Act that perhaps will be 
of interest to you and the other members of the Committee.
    When the Endangered Species Act was passed and signed into 
law in 1973, a House report observed that, quote, There are 375 
species of animals imminently threatened throughout the world. 
The report specifically observed, ``It is beyond our capability 
to acquire all the habitat which is important to those species 
without at the same time dismantling our own civilization.''
    Those were prophetic words. Now there are over a thousand 
species alone right here in the United States, as you pointed 
out, Mr. Chairman, that--and these include 33 insect species. 
The U.S. Fish and Wildlife Service and other Federal 
bureaucracies seem intent on dismantling our civilization by 
way of this law.
    The--as currently written, the Endangered Species Act 
allows application of sloppy science to bad law, endangering 
state's rights and private property rights, flying in the face 
of the Constitutional guarantees.
    To be specific, right here in eastern New Mexico, we have 
the Pecos River and the Pecos bluntnose shiner which is 
supposedly an endangered species. The Bureau of Reclamation has 
threatened to take over the operation of Sumner Dam in the 
Pecos river between that and Carlsbad so that 35 cubic feet per 
second of water can be released at certain times during the 
year to provide habitat for the Pecos bluntnose shiner.
    This, Mr. Chairman and Members of the Committee, will take 
out of use, through evaporation and seepage, 3,000 acre feet. 
Now, this will impact greatly the delivery of water to Texas 
that New Mexico is obligated by the Pecos Compact and U.S. 
Supreme Court to deliver to Texas every year. And if we fail to 
do so, the--a priority call must be instituted on the Pecos 
River and this, if carried to its extreme extent, could impact 
that area of the State of New Mexico and its economy over $200 
million because of this priority call.
    If we take 3,000 acre feet out of our deliveries to the 
state line, we could conceivably be in a deficit position and 
not have delivered to Texas the water required by this compact.
    Mr. Chairman, Members of the Committee, you have a copy of 
the written testimony. The other part that I would like to 
touch on has to do with the San Juan River and a similar 
situation there where the State of New Mexico is going to be 
required to expend $2 million out of a total of $172 million 
that is embodied in a bill presently in the U.S. Senate. I 
don't believe it has been passed; and, hopefully, it won't be. 
But that will require recovery of species that were poisoned by 
the same people that are trying to recover them at this present 
time in the 1960's.
    I would like to touch on one other item. It has been said 
that here in eastern New Mexico we don't have any endangered 
species problems, only fear and apprehension and anger. Well, 
that's abso-

lutely probably true; but, it's not true that we don't have any 
endangered species problem.
    One of those has to do with the black-tailed prairie dog. 
We have these in--by the thousands in this part of the state, 
and they have been asked by certain environmental groups to be 
declared threatened. There is not any way, Mr. Chairman, 
Members of the Committee, that this animal is a threatened or 
even endangered species. They exist right now, here today, 
right here in the city of Clovis and probably in every 
municipality in the State of New Mexico.
    The only reason they don't cover the 250 million acres that 
was originally their habitat, as is pointed out in the article 
in the Albuquerque Journal on August 1 of 1998 is that this 
area grows wheat and feed and corn and livestock, and feeds are 
an issue. Therefore, it is an absurdity that this is an 
endangered specie.
    Mr. Chairman, what do we do about this? Do they just go 
ahead and unfettered declare the prairie dog to be an 
endangered species? What recourse do we have? The playing field 
needs to be balanced if you folks choose to reauthorize an 
Endangered Species Act.
    Thank you.
    Mr. Pombo. Thank you, Mr. Pattison.
    [The prepared statement of Mr. Pattison may be found at end 
of hearing.]
    Mr. Pombo. Mrs. Budd-Falen?

 STATEMENT OF MS. KAREN BUDD-FALEN, COUNSEL, NEW MEXICO CATTLE 
             GROWERS ASSOCIATION, CHEYENNE, WYOMING

    Ms. Budd-Falen. Thank you. My name is Karen Budd-Falen. I 
am both a fifth generation rancher and an attorney who is 
this--today is representing the New Mexico Cattle Growers 
Association.
    In the letter you sent asking the New Mexico Cattle Growers 
to participate at this hearing, you asked if the Endangered 
Species Act was working and what affect it had on New Mexico. 
In addition to the effect that the Act has had on farmers and 
ranchers, it seems like the Endangered Species Act really is 
the litigation tool of choice for the environmentalists.
    Let me give you one easy example. Between 1993 and 1998, 75 
cases were filed in the Federal District Court for the District 
of Arizona solely involving the Endangered Species Act. Of 
those 75 cases, 67 were filed by environmental groups, mostly 
the Forest Guardians and the Southwest Center for Bio 
Diversity.
    In just 5 years, when all those cases were said and done, 
the U.S. Government agreed to pay the environmental groups, 
either voluntarily or through stipulated settlements, over 
$5,329,659.50 in litigation fees and costs to environmental 
groups. This is in addition to the economic harm that it has 
caused New Mexico ranchers and farmers.
    So, what is happening is the Federal Government, through 
the Equal Act and the Justice Act, is paying environmental 
groups to sue the Federal Government to stop land use.
    Certainly if the Endangered Species Act were working and 
were working correctly, the Federal Government would be 
spending this $5 million on species protection rather than on 
paying attorney fees and costs to environmental groups to 
litigate over the Endangered Species Act.
    That amount of litigation alone should show the Committee 
that the Endangered Species Act, in its current form, is not 
working. Otherwise, the Act would be implemented, and the 
species would be protected.
    If you want to look at individual economic costs, let me 
give you an example. On behalf of the New Mexico Cattle 
Growers, I represented 19 grazing permittees on the Arizona and 
New Mexico border whose grazing allotments were being cut 
between 40 and 85 percent on a 1-year's--or on a year's 
reduction for the renewal of grazing permits because of 
Endangered Species Act concern.
    So, the Forest Service wrote several environmental impact 
statements reviewed by the Fish and Wildlife Service under 
Section Seven of the Endangered Species Act, wherein between 40 
and 85 percent of the grazing permits were cut, fences were 
agreed to be built around private water rights, and livestock 
was moved away from water in areas where there is not a lot of 
water. The--There were three counties that were specifically 
affected, two in Arizona and one in New Mexico.
    In addition to the loss of the ranchers, which were not 
calculated in the formulas, the county tried to determine if 
there was any economic loss to local governments. But the loss 
of those 19 ranches--or with reduction of those 19 ranches, the 
county, in and of itself, lost $10 million in economic loss the 
first year because of those reductions.
    The county then went and looked at what happened to farmers 
and ranchers when their livelihoods were reduced between 40 and 
85 percent. What the county found out is that the first thing 
that ranchers cut was medical costs. If you don't have enough 
money, the first thing you stop doing are going to doctors when 
you're sick.
    The second thing that was lost for the ranchers in terms of 
their own economic livelihood was food and supplies. In this 
area, 60 percent of the money made by ranchers goes back into 
the ranch in terms of--of operation repairs such as maintenance 
of fences or hiring help or whatever. That's where the loss 
came from, was that 60 percent that the money put back into 
maintaining the Federal land.
    A $10 million economic loss in three counties is a 
significant loss, and that was because of the Forest Service's 
decision to reduce those grazing allotments. The saddest thing 
in all of that was when you actually sat down and looked at the 
Forest Service documents making the reduction. The Forest 
Service documents listed a total of nine threatened or 
Endangered species that it claimed to be caring for which was 
the reason for the reduction.
    But when you actually sat down and looked at the effects, 
either the species were extirpated, which means that there 
weren't any endangered species on the allotments, which 
happened with the Mexican gray wolf and with the jaguar, or the 
species that were present on the allotment, including Southwest 
willow flycatcher, bald eagle, peregrine falcon, Mexican 
spotted owl, Apache trout, Loach minnow, razorback sucker, the 
Forest Service documentation themselves either said there was 
no adverse effect from livestock grazing on the species or that 
the effects occurred from something else.
    So, these ranchers suffered between a 40 and 85 percent 
reduction in their grazing permits and their cattle weren't 
affecting the species in the first place. That's the kind of 
real life stories that are being--that are occurring in New 
Mexico because of the Endangered Species Act.
    Clearly, it's an Act that is broken and needs to be fixed 
by Congress.
    Thank you.
    Mr. Pombo. Thank you.
    [The prepared statement of Ms. Budd-Falen may be found at 
end of hearing.]
    Mr. Pombo. I thank all of you for your testimony. Mrs. 
Budd-Falen, in your testimony you talk about in excess of $5 
million that was paid--paid out. Was that money used for 
habitat recovery or----
    Ms. Budd-Falen. No, your Honor. That was litigation fees 
and costs paid directly to environmental groups. Not a drop of 
that money went to endangered species or protection of 
endangered species or recovery plans or anything. That was 
litigation money that went to lawyers.
    Mr. Pombo. So, you're telling the Committee that all this 
money went to attorneys and none of it went to recovering 
habitat or recovering endangered species?
    Ms. Budd-Falen. That's exactly what I'm telling the 
Committee. Those were--the fees and costs were filed in court 
documents and paid directly to the attorneys representing 
environmental groups.
    Mr. Pombo. That is, according to your testimony, is in 
excess of a million dollars a year?
    Ms. Budd-Falen. That is correct, Your Honor.
    Mr. Pombo. Not bad work if you can get it, huh?
    Ms. Budd-Falen. I'm litigating on the wrong side.
    Mr. Redmond. No, you're not.
    Ms. Budd-Falen. No, you're right. I am litigating on the 
right side.
    Mr. Pombo. You mentioned the Forest Service allotments and 
grazing allotments, and you said that, in your testimony, that 
they had to fence off water rights, that they had to fence off 
access to water. I know a little bit about the cattle industry. 
If you don't have water, what is the rest of the ground worth?
    Ms. Budd-Falen. Absolutely nothing. And the problem is, is 
what they're doing with the fencing decision, is they are 
fencing--this is a very dry area. There is only a few streams 
and rivers that run through the area. It's also very steep.
    And, so, in terms of drilling water or putting a pump in a 
water source and pumping the water up a hill is incredibly 
expensive. And the Forest Service has told the permittees that 
they either build and maintain the fences, which are incredibly 
expensive, or they say you don't turn out your livestock.
    And then they'll go to the permittees and say, ``Well, this 
benefits you because we're not kicking you off of your 
allotment. So, we're not eliminating your use of the allotment, 
but you don't have any water to put your cows on when your cows 
are in the allotment.''
    And, so, they really are eliminating use. It just sounds 
better.
    Mr. Pombo. Now, the Forest Service is building the fences 
or--or the cattlemen are expected to build the fences?
    Ms. Budd-Falen. In some cases, the Forest Service is 
building. In some cases, they are telling the cattlemen, ``You 
don't have to build a fence; but, until the fence is built you 
cannot turn your cows into the pasture.''
    Mr. Pombo. Are there any of the cattlemen that have gone 
ahead and built a fence?
    Ms. Budd-Falen. Yes.
    Mr. Pombo. There are?
    Ms. Budd-Falen. Yes.
    Mr. Pombo. And that--that fact was reflected in their lower 
rent then, right?
    Ms. Budd-Falen. No.
    Mr. Pombo. No?
    Ms. Budd-Falen. No, the grazing fees that are paid by the 
cattle owner are paid regardless of who builds the fence. What 
happens, though, is it increases the maintenance cost, because 
in no case has the Forest Service or the environmental groups 
or anyone else pushing this decision agreed to do the 
maintenance on these fences.
    And, so, the--the maintenance cost of 60 percent that the 
rancher pays to maintain the allotments already now increases 
because they have to pay them--they have to pay those 
additional costs. The Forest Service does not bear the brunt of 
any of these costs.
    Mr. Pombo. The--All of you testified that there was 
questionable science that was used in some of these cases. Can 
any of you give me an example of what you would consider 
questionable science or that was used in any of these 
endangered species cases on a listing? Mr. Pattison?
    Mr. Pattison. Thank you, Mr. Chairman.
    Mr. Pombo. Speak into the mike.
    Mr. Pattison. In the case of the poisoning of the fish in 
the San Juan River so that it would become a so-called blue 
ribbon trout fishing area in the 1960's, the Fish and Wildlife 
Service and the--I believe the New Mexico Game and Fish 
Department might have been in on it, too, they had decided at 
that time, through the science available to them, that that was 
a necessary action.
    Now the whole input of the $172 million that is trying to 
be used for recovery of these same species is counter to what 
was thought in 1973. And those--some of those species aren't 
even native to New Mexico. So, that is a perfect illustration 
of the lack of sound science in trying to recover those 
species.
    Up in Colorado, those--some of those same species exist and 
can be further enhanced and propagated without the financial 
impact on New Mexico and Arizona and California that is brought 
about by this action on the San Juan.
    Now, the sound science would indicate that a thorough 
investigation would have been made as to the total habitat of 
these varieties of fishes, and that a note would be made of the 
areas where they thrive now. But, because of the environmental 
actions of certain groups, they pick the spot on the river 
where they have been poisoned in the past and they say that, 
``Well, they need to be re-

covered.'' So, that is a perfect illustration, I believe, of a 
lack of use of sound science.
    Mr. Pombo. One of the criticisms that I've heard on the 
Endangered Species Act is that it is not implemented evenly 
across the country. There are some cases where it is much more 
aggressively implemented or that the recovery plans that are 
adopted are much more aggressive in certain parts of the 
country than there are in others.
    You brought up the prairie dog as possibly being listed as 
endangered or threatened under the Act.
    Mr. Pattison. Yes, Mr. Chairman. The black-tailed prairie 
dog has been a native of North America since who knows how 
long. And back before the vast prairies of the central United 
States were broken up and used for farming, its habitat 
included all of that area in particular spots.
    And it has been said that there were 250 million acres and 
black-tailed--black-tailed prairie dogs inhabited almost all of 
this area, and now it's reduced to one million acres; 
therefore, it should be declared a threatened species.
    However, there isn't any way that their original habitat 
will ever be restored; or, if it were, the United States and a 
lot of the rest of the world would starve because of lack of 
wheat in the production--agricultural production of those vast 
acres.
    Mr. Pombo. I would caution you when you say there is no 
way. If they implemented a recovery plan similar to what 
they've done in California with the California spotted owl and 
the Northern spotted owl, any area where you would find 
potential habitat for the prairie dog, you would have to stay 
out of it, develop a habitat recovery plan for that particular 
area.
    I believe that, right now, any place in our forests which 
have been harvested for hundreds of years where there is a 
spotted owl nest, you can't build within a thousand feet of 
that nest. And if they had a similar recovery plan for your 
plains, you would not be able to go farm anywhere near that.
    It may sound somewhat odd to you looking across it, but we 
thought it was very odd when they offered that to us for the 
recovery of the spotted owl in California, so----
    Mr. Pattison. Mr. Chairman, I believe that if that should 
occur and the black-tailed prairie dog were to be declared an 
endangered species, not just a threatened species, but an 
endangered species, and all of the farming through this vast 
area would be ordered to be shut down, that that would be 
probably the best thing that would have happened as far as the 
Endangered Species Act was concerned, because you would have 
Congress then seeing how impossible this Act is and it would be 
repealed. Because people would feel it firsthand in the grocery 
store.
    Mr. Pombo. Thank you, Mr. Pattison.
    Mr. Redmond. I have a few questions. My first question is 
to Senator Ingle. As an elected official who represents a large 
agricultural district and is a farmer yourself, what do you 
hear from your constituents about the Endangered Species Act?
    Mr. Ingle. Basically, Congressman, what I hear is basically 
a lot of the things we've heard this morning. It seems to me 
that they're--we're concentrating--or the efforts are 
concentrated more on litigation than they are on actually 
conserving any of the species.
    You know, there is ways that you can--you can conserve some 
species, if that's what--if that's indeed what the Act is 
designed to do, which it is. And there are--there is some merit 
to some of that. But it seems to me that the lawsuit or the 
litigation comes first, and then that is an effort then to 
basically eliminate any use that the--the owner had for the 
land, so basically that's the way that that Act was 
accomplished.
    It doesn't--doesn't help the owner at all. It just seems--
basically where his land is of no real use. Falen here on the 
end spoke, I thought, very well of what happens in the Forest 
Service lands. You can use the land if you do all this work on 
it; but, in desert areas and things like that, often you 
cannot--you--that's why it's a Forest Service, because 
basically much of this land can't actually be bought by private 
people that can make--make the actual land work and pay for 
itself. That's why we have so darn much of it in New Mexico, 
not only statewide but Federal.
    But, by the same token, these folks have taken care of this 
land and made some use of it and paid taxes through their 
income and things from it. The Environmental Protection Act 
basically just eliminates the whole source of any income off 
anything.
    And whether the species are there is not a litigation 
itself to stop the use of it, and that's the danger that I see 
in so much of this. And there is another example of the prairie 
dog thing. We're certainly not short of those little guys and 
never will be. They are--they are a survivor. Some animals in 
this--this--this state weren't.
    We're spending a lot of money now trying to reintroduce a 
gray wolf in certain areas of the state. We're having an awful 
hard time. They've been out of circulation for so long, that 
it's a little bit tough to get over somebody bringing your food 
and having to hunt it down yourself.
    And not that I'm against them being introduced, but there 
are certain species that have--have come through, you know, the 
growth of man, and we can't stop the growth of man here. So, 
basically, I think we need to look out more--and if we're going 
to preserve something, let's try to preserve it.
    Let's not try to just let it stop and litigate everything 
that comes along. And then the litigation is--as all of us 
know, once the suit is filed it may be years before the--the 
action is actually taking place, and perhaps your case is 
thrown out, perhaps it's put off for another hearing and you've 
got another 2 years. But it's--I think those are the things we 
need to be very careful of.
    Mr. Redmond. OK. My next question is to Mr. Pattison. 
Environmentalist Sam Hitt recently said the Endangered Species 
Act had little impact in the Clovis area. Is this correct?
    Mr. Pattison. I believe that's probably because of the fact 
that Mr. Hitt has been here very little and doesn't know what 
our problems are. And if he were land commissioner, it would 
mean that he would have to be educated a great deal before he 
could take care of his office.
    No, it's not correct. The prairie dog, and the reason I 
brought it up, is one of the endangered species, so-called, or 
threatened species that they haven't used any science at all. 
Not just false science or sloppy science, they haven't used any 
science at all in ascertaining the--the habits and the 
existence and the reproduction and so forth of this prairie 
dog.
    You can see them right now today within the city limits of 
Clovis, and you can do the same thing in Albuquerque and Santa 
Fe and Las Cruces and almost, if not all, of the municipalities 
or villages in the State of New Mexico.
    Mr. Redmond. Thank you. For Ms. Budd-Falen, have you 
discovered any data which indicates that the livestock industry 
adversely affects the populations of the endangered species? 
You gave us an example of the economic impact in three 
counties, approximately $10 million. But the question here is, 
you know, is the livestock, are they adversely affecting the 
population of the endangered species?
    Ms. Budd-Falen. That's--to me, that's one of the most 
frustrating things about it. The environmentalist community 
makes this look like it's an either/or situation type, either 
humans or animal species; and that--that is absolutely not the 
case.
    The case that I talked about over on the Arizona-New Mexico 
border, the Forest Service and the Fish and Wildlife Service 
jointly found that grazing had no effect on the list of 
threatened or endangered species that they were concerned 
about, no effect at all. This was grazing currently occurring 
on those allotments in the riparian area, cattle walking into 
the streams and taking a drink.
    We had a court hearing on this several months ago. They 
testified that actually more harm came to the species from 
driving up and down the roads checking on the cattle than 
actually occurred by the cattle in the streams themselves.
    And, so, it's not a question of cattle or endangered 
species or humans or endangered species. Species are resilient. 
Cattlemen can--can work and change. They don't have to have 
their livelihoods eliminated.
    The facts are that on the species that the Fish and 
Wildlife Service and the Forest Service were concerned about in 
Arizona and New Mexico, every single determination came out not 
likely for it to adversely affect the species.
    Mr. Redmond. I would like to make an assignment to each of 
those that are testifying this morning on Panel I. When 
Congress addresses the issue of the Endangered Species Act, 
it's inevitable that we'll have to be very clear in our 
definition of ``threatened'' and ``endangered.'' It's not just 
a matter of the--you know, the implementation of regulations. 
It's the--you know, what definition is being used for 
``threatened'' and ``endangered.''
    And I would like for each of those who testified to take a 
crack at it. If you were writing the law, how would you define 
``threatened'' and ``endangered''?
    Thank you. That's all I have, Mr. Chairman.
    Mr. Pombo. I just had a couple more questions I wanted to 
ask. There was a recent statement that there is no straight-
line connection between the Endangered Species Act and the 
livestock industry, and I was wanting to ask Ms. Budd-Falen 
about that statement and if she agrees with it.
    Ms. Budd-Falen. I absolutely disagree with that statement. 
One of the straight-line impacts that I talked about was that 
when the grazing allotments in Arizona and New Mexico were 
reduced between 40 and 85 percent because of endangered 
species, that, in one single year, resulted in a $10 million 
loss to local economies and it resulted into a loss to the 
ranchers themselves, and what got cut was spending for medical, 
for medical supplies and for going to doctors.
    That was a direct, straight-line impact from--from an 
Endangered Species Act decision to the ranchers and farmers 
themselves. So, I think that it is clear that there is a direct 
impact. I know that Sam Hitt's article talked about that there 
was no impact and that these people weren't affected. That's 
not true.
    For example, I represent some other ranchers and farmers 
whose water rights, which have been declared private property 
in the State of New Mexico, have been directly taken. This is 
water for farms and for ranches. Most of these water rights 
were developed before the Federal lands were even created, back 
when Mexico still had this land and before the signing of the 
Guadalupe-Hidalgo Treaty. These right have been directly taken 
from them because of the Endangered Species Act.
    There has been no analysis of whether this taking has 
occurred, the costs, or any of that. We've recently filed suit 
to try, under the Fifth Amendment of the Constitution, to try 
to force the Federal Government to at least recognize the 
problem with taking--direct taking of private property under 
the ESA.
    Mr. Pombo. OK. Thank you. I want to thank the panel for 
your testimony. If there are any further questions for this 
panel, they will be presented to you in writing. And if you can 
answer those in writing for the Committee, they will become 
part of the official record, and I would appreciate that.
    But thank you very much. You're excused.
    I would like to call up the second panel, Dr. John Fowler, 
Mr. Bud Eppers, Mr. Manuel Pacheco, and Mr. Bill Moore.
    Thank you very much. I think you heard the explanation of 
the 5-minute rule. I--if you're almost finished, I usually let 
you go ahead and finish. But if you could try to stick to that, 
I would appreciate it.
    Dr. Fowler, if you're ready, you can begin.

    STATEMENT OF DR. JOHN FOWLER, PROFESSOR OF AGRICULTURAL 
 ECONOMICS, NEW MEXICO STATE UNIVERSITY, LAS CRUCES, NEW MEXICO

    Dr. Fowler. Good morning, Mr. Chairman, distinguished 
Committee Members. I greatly appreciate the opportunity to be 
here this morning.
    I am a professor of Agricultural Economics at the New 
Mexico State University in the State of New Mexico, and I have 
responsibilities involving a team of scientists called the 
Range Improvement Task Force, and we have been working in this 
arena of resource management for many, many decades. We greatly 
appreciate the opportunity to share some of our experience with 
you and the Committee members this morning.
    I am a strong supporter of the original intent of the 
Endangered Species Act. I believe that continuity of the 
genetic pool, bio diversity, and species richness are essential 
elements to long-term well being of our society and our 
productivity. However, that's where the support stops.
    The application and implementation of the Endangered 
Species Act that we have seen in the State of New Mexico goes 
beyond any semblance of reasonableness, any semblance of common 
sense, and any semblance of professionalism. The hard-
handedness of the agency assigned to implement this, the U.S. 
Fish and Wildlife Service, their lack of experience in the 
field--in 20 years I have yet to find the U.S. Fish and 
Wildlife Service biologists in the field. We have yet to have 
them interact with the people they are directly impacting. This 
travesty needs to be corrected.
    Private landowners, Mr. Chairman, are the key to the 
successful implementation and change of the Endangered Species 
Act. They are the individuals that understand where the species 
are. They are the individuals that understand how they move, 
how they interact with one another, and how coexistence can be 
implemented. And, yet, these people cringe at the very thought 
and mention of threatened and endangered species because of the 
way it's implemented on the ground. This has to be rectified, 
Mr. Chairman.
    Another major area of the Endangered Species Act, this has 
become a dominant use policy. As soon as the mention of 
endangered species comes up, all other types of management are 
thrown to the side. All of our relevant legacy of data and 
information is cast aside. And the only principle that they 
used is that of the endangered species. It becomes the tail 
wagging the dog. Our management is cast aside and oftentimes 
without the proper scientific credibility.
    We've been teaching for 20 years how sound biology, 
economics, and institutional constraints need to be equal legs 
on the triangle of management. Not a single spot of law, but an 
encompassing three-dimensional effort for management for the 
short term as well as the long term involving the people, the 
politics, and the physiology. This is lost with the Endangered 
Species Act.
    The Endangered Species Act uses a principle called a 
precautionary principle. If there is any hint of endangered 
species, then by all means, before you find out about this 
species, remove and reclassify the species and change 
everything before you might have any impact.
    A classic example is the snail darter. Years ago, in the 
Tennessee valley, Federal projects were stalled, prevented, 
local impacts were implemented, and then all of a sudden, lo' 
and behold, other populations were discovered, and the 
consequences were already done.
    We have done this on 18 of the 22 species currently being 
nominated for a list that were presented by Secretary Babbitt. 
There were mistakes in science in 18 of the 22 classifications. 
This is inexcusable. The damage that was done was done a 
priori, it was done premature, and we have allowed this to 
happen.
    I have presented in my testimony to you, Mr. Chairman, 
seven examples of the implementation of the Endangered Species 
Act in New Mexico. The analysis tries to--to show not only the 
direct impacts to the agricultural industries, but also the 
supporting infrastructure and how they are impact affected.
    For the purpose of brevity, I would like to have this 
introduced for the record.
    Mr. Pombo. Without objection, it will be included.
    Dr. Fowler. Thank you, Mr. Chairman.
    Even with this analysis that we did, it did not include 
reductions in wealth. It did not include equity and capital 
losses associated with this Act. In addition, it does not 
include intangible losses associated with loss of way of life, 
loss of hope, despair, increased suicide, increased divorce. 
All these are the cumulative impacts of the Endangered Species 
Act that are being forced upon our citizens, Mr. Chairman.
    We need a comprehensive cumulative analysis of this Act. In 
addition to those--the analysis on the separate seven species, 
I have also included a summary of the ideas developed by a 
multi-agency, multi-disciplinary team done in 1993, nearly 6 
years ago, that speaks and addresses how do you get good 
science? How do you list a species? How do you develop a 
recovery plan before they're implemented?
    So, procedurally, I believe these are just as germane today 
as they were in 1993, and I also would like to present that to 
the chairman as a matter of record. Thank you very much, Mr. 
Chairman.
    Mr. Pombo. Thank you.
    [The prepared statement of Dr. Fowler may be found at end 
of hearing.]
    Mr. Pombo. Mr. Eppers.

  STATEMENT OF BUD EPPERS, CHAIRMAN, NEW MEXICO PUBLIC LANDS 
                  COUNCIL, ROSWELL, NEW MEXICO

    Mr. Eppers. Thank you, Mr. Chairman, and we appreciate you 
bringing the Committee on Resources, the oversight hearing to 
New Mexico where you've already stated the people that are most 
affected have an opportunity to have input into the process.
    I represent over 4,500 Federal and state trust land 
permittees throughout the State of New Mexico. We graze on 
intermingled private, state, and Federal land. Most all of our 
operations range from small to large family business livestock 
production operation.
    In preparing this testimony, this Committee necessitates 
review of the effectiveness of the Endangered Species Act since 
it was adopted and signed into law. Dr. Fowler already 
mentioned the snail darter. The desert tortoise is another 
example where a gold mining company desired to harvest the gold 
out of the hilly terrain on the California-Nevada border. A 
requirement for getting that permit to mine, they were forced 
to go and acquire private property and set up a desert tortoise 
research center before they could be given a permit to mine 
their gold.
    In a 1,500 acre development location near Las Vegas, 
Nevada, they were required to physically remove all desert 
tortoises from their proposed development land, and they 
removed over 870 tortoises at a cost in excess of $40,000 per 
turtle.
    The Southwestern willow fly catcher, not listed by the U.S. 
Fish and Wildlife Service, but afforded protection by a Federal 
judge, threatens historical water and grazing rights throughout 
the southwest. Cattle grazing is being eliminated by fencing in 
riparian areas on forested land and BLM is quickly developing 
similar management practices.
    The list goes on and on, and in every case there is not one 
shred of peer reviewed, scientific documentation supporting 
listing and protection.
    Recently, the Fish and Wildlife Service told a staff person 
of Congressman Skeen that there were less than 400 pairs of the 
Southwestern willow flycatchers left in the entire world. This 
is absurd when recent studies indicate there is at least that 
many or more on the Gila River in southwestern New Mexico.
    One of the things that you asked for was recommendations of 
how the Endangered Species Act might be amended or changed. I 
would like to offer several recommendations for consideration 
by the Committee as you consider reforming the ESA.
    First, the ESA is not--cannot claim victory in restoring or 
preventing a single species from becoming extinct, and it 
should be repealed in its entirety. Its purpose at this time is 
to eliminate consumptive uses of the land for extortion of 
developers and miners.
    The Committee should seriously consider whether the Federal 
Government should play a role in endangered species or let the 
states address identification, listing, habitat requirements, 
or reintroduction. With the exception of just a very few 
species, states have management responsibility for wildlife 
within their borders. Even in migratory species, the states 
could do a better job in management than the Federal Government 
and at a lower cost.
    Congress should establish a blue ribbon committee of range, 
timber, and wildlife professionals from land grant 
universities. They should be charged with reviewing any and all 
available data on the current status of each species under 
Federal agency management. They should request and review all 
management techniques used to protect and restore species 
populations, and then they should report back to Congress with 
a progress report on each species with any recommendation for 
management changes to expedite recovery or withdraw the species 
from protection.
    Federal agencies should only be given management 
responsibility for migratory species. Species that can walk or 
crawl across state boundaries should not be managed by other 
than state agencies in cooperation with the neighboring state.
    Listing of a threatened or endangered species should only 
occur after substantial and verifiable and peer reviewed 
evidence exists. Land grant university scientists should concur 
unanimously.
    Citizen suits should be prohibited. One of the worst 
travesties of the ESA is the ability of environmental groups to 
bring before a favorable judge a request for a listing, 
critical habitat designations, and management restrictions. The 
judiciary is not the proper setting for addressing the 
endangered species issues.
    Conditions for listing should include mitigation of the 
impact on rural communities, economies, historic land uses, and 
management production on private, state trust, and Federal 
land.
    And, by all means, to protect private property, Executive 
Order 12630 should be enacted into law with the Justice 
Department Implementation Guidelines serving as the regulations 
for compliance. General appropriation to the Endangered Species 
Act should be eliminated, and a possible funding source for 
federally listed spe-

cies could be a voluntary contribution provided for on the 
individual income tax forms.
    I appreciate and thank the Committee on Resources for 
coming to New Mexico and holding hearings on such an important 
issue.
    And I would just like to call your attention, you've asked 
the question about the news release by Sam Hitt. I would just 
like to say that in eastern New Mexico alone there are a number 
of threatened or proposed species, the Pecos pup fish, the 
bluntnose shiner, the sand lizzard, Arkansas River shiner, 
lesser prairie chicken, black-tailed prairie dog, and Pecos 
sunflower. And if these--these species aren't important to 
eastern New Mexico, Mr. Hitt doesn't know what he is talking 
about.
    Thank you, Mr. Chairman.
    Mr. Pombo. Thank you.
    [The prepared statement of Mr. Eppers may be found at end 
of hearing.]
    Mr. Pombo. Mr. Pacheco?

  STATEMENT OF MANUEL PACHECO, NORTHERN NEW MEXICO STOCKMEN'S 
                 ASSOCIATION, TAOS, NEW MEXICO

    Mr. Pacheco. Thank you, Mr. Chairman, Mr. Redmond--
Congressman Redmond.
    I think that to fully understand my remarks you need to 
understand my roots and my background. I'm a descendant of the 
Pachecos that have been here since 1598, and on my mother's 
side, from the Ortizes that have been here since 1693. 
Historical records show that we've been in ranching since early 
1700.
    Besides ranching, I started working at varied businesses 
since I was 16 years old. I became a public schoolteacher, a 
central district school administrator. I did work for the 
agency for international development. I have been a consultant 
to some lawyers. I've organized many organizations, and I 
served my country in the U.S. Naval Forces. I've also served on 
the National Public Lands Council under Secretary of Interior, 
Manuel Lujan and President George Bush.
    I am currently a board member of Northern New Mexico 
Stockman, also the P.A.J.E. Corporation, a New Mexico wide 
agricultural business related organization, and also vice 
president of El Llano Ditch in Colorado.
    The Endangered Species Act, although well intended, has 
been a total failure. According to the National Wildlife 
Federation, in 25 years with billions of dollars spent, of 
1,119 species listed, 6 species were delisted as recovered and 
6 have become extinct.
    The Mexican wolf reintroduction has left no survivors but 
spent millions. The Southwestern willow flycatcher, probably 
the only scientific study with qualified biologists using U.S. 
Fish and Wildlife Service protocol, was done on the U-Bar Cow 
Ranch in the Gila River. In July 1994, it had a high of 64 
pairs. In might be noted that in the west the only other pairs 
found were 38 in the Keru River in California in a county that 
has no cows.
    From 1994 through 1998, along the Gila, they have counted 
up to 186 pairs, so they've been growing in numbers, all in cow 
country. Remember that.
    Another difference found in this study is that the 
established literature that the Federal agencies have been 
following is contrary to what they state. The placement of 
nests have been high, the vegetation of preference different. 
Why then do they go and fence thousands of miles of river 
without any science being done as to its effect? What a waste 
of money.
    The Carson National Forest spent a million dollars trying 
to locate Mexican spotted owls. They found one in the Jicarilla 
reservation. Imagine what that money could do if it was spent 
on resource improvement.
    It must be said that among scientists and biologists there 
are differences in approaches to saving species. We, the 
Northern New Mexico Stockmen, believe that by saving species 
and improving range, you can do it by putting your money and 
your effort on the ground. Historically, our families have 
protected the area for over 400 years.
    Those that do not subscribe to common sense take actions 
like those that happened in Vail, Colorado. In Colorado, the 
extremists started to burn out development. We're afraid--and I 
come from an area where there is five ski areas, and I've seen 
plans from this new Santa Fe ring--pretty soon you're not going 
to be able to go camp, recreate, ski, or use the lands that we 
have used before it was an idea of the United States, before 
there was a country of Mexico, and for 150 years under our 
country that we have fought, died, and served.
    Why are we not equal at least to the plants and animals 
that they're trying to save? We have civil rights under the 
Treaty of Guadalupe-Hidalgo, under the Constitution of New 
Mexico, under the 14th and 5th Amendments of the United States 
Constitution. Why are they being taken away from us by radicals 
that take no risk?
    Mr. Pombo. Thank you.
    [The prepared statement of Mr. Pacheco may be found at end 
of hearing.]
    Mr. Pombo. Mr. Moore?

STATEMENT OF BILL MOORE, NEW MEXICO DEPARTMENT OF AGRICULTURE, 
                     LAS CRUCES, NEW MEXICO

    Mr. Moore. Honorable Congressmen, let me begin by thanking 
you for the opportunity to provide my perspective on the 
Endangered Species Act. I would like to draw from my 
professional training and experience as a wildlife biologist 
and discuss with you briefly the lack of science that I am 
seeing personally in ESA implementation.
    I would like to focus on the Southwestern willow 
flycatcher, a species which has already been mentioned a couple 
of times here today. In my professional opinion, the majority 
of the controversy over this species' protection and livestock 
grazing could be alleviated through more objective evaluation 
and application of the scientific information.
    In addition, Federal agencies' failure to comply with 
procedural requirements of the ESA have contributed greatly to 
the current crisis facing New Mexico's livestock industry. This 
failure to comply with statutory responsibilities has forced 
Federal agencies into a reactionary mode, investing resources 
to address what should be frivolous lawsuits. In an effort to 
quickly attain procedural compliance with the ESA and stave off 
unfavorable court rulings, these agencies are implementing 
sweeping management actions which would not be necessary if a 
more proactive approach, i.e., timely attention, to these 
issues had been taken.
    The U.S. Fish and Wildlife Service published a final rule 
listing the flycatcher as endangered in 1995. The final rule 
not only provides Federal protection, but it is also supposed 
to justify the Fish and Wildlife Service's decision to list the 
species. This justification is supposed to be based upon the 
best available scientific and commercial information available.
    However, in my review of the final rule and the literature 
cited within it, I found errors in the way that the literature 
was represented. These errors are being incorporated into 
Federal land management decisions and also into litigation to 
the unjustified detriment of livestock producers. That's the 
first point I would like to make today.
    A good example of this is the alleged relationship between 
livestock presence and cowbird brood parasitism. Just very 
quickly, brown-headed cowbirds have been shown to affect 
flycatcher populations. Nobody disputes that. The cowbird lays 
its eggs in nests of flycatchers and flycatchers end up raising 
baby cowbirds or no babies at all, essentially.
    The Fish and Wildlife Service has taken the position that 
livestock presence is responsible for cowbird presence. In 
other words, if you remove all livestock, then the cowbirds are 
going to go away. And that line of reasoning is already being 
used in New Mexico to remove some livestock from some Federal 
permits.
    When I reviewed the scientific literature cited in the 
final rule, I found what could best be described as a 
correlation. Livestock and cowbirds both present in an area, 
and that's it. But somehow the Fish and Wildlife Service has 
turned that into a cause and effect relationship, i.e., 
cowbirds are present because livestock are present.
    I believe this is a very fatal flaw in scientific research 
which leads to unsubstantiated and sometimes grossly erroneous 
conclusions. To put it in some less scientific terms, one could 
likely find a statistically significant relationship between 
increased ice cream sales and increased crime rates. However, I 
don't think anybody looking at the issue objectively would 
automatically conclude that increased ice cream sales resulted 
in an increase in crime rates; but, that's essentially what the 
Fish and Wildlife Service is doing in this particular 
situation.
    My second point is that Federal agencies need some 
accountability. Special interest groups are having a field day 
suing agencies because these agencies, by their own admission, 
cannot meet the procedural requirements of the ESA. Why not?
    Privately the Federal agencies blame one another. In the 
meantime, lawsuits continue to be filed and the only people who 
suffer any repercussions are the livestock producers who are 
dependent upon that Federal grazing permit to stay in business.
    A good example of this is the Forest Service's decision 
earlier this year to remove livestock from a couple hundred 
miles of streams in western New Mexico and northern New Mexico. 
That decision was not made based upon recently collected field 
data indicating degraded riparian conditions. The decision was 
made because the Forest Service, by its own admission, was out 
of procedural compliance with the ESA, that is despite the fact 
that the Forest Service had over 3 years to come into 
compliance.
    The Forest Service made that decision in order to avoid the 
possibility of a court injunction. There was no scientific data 
which led to that decision, no matter what you read in the 
newspapers.
    Special interest groups are utilizing the ESA to create 
what has been described--let me back up. Litigation has got to 
be removed as the central driving force behind ESA 
implementation. Every Federal agency decision made in regards 
to the flycatcher, every single decision going back to the 
original petition to list has come about as a direct result of 
a lawsuit or the threat of a lawsuit.
    As a result of being produced in a crisis mode, the 
biological integrity of decisions is suffering. Special 
interest groups are utilizing the ESA to create what has been 
described as a legal train wreck. These groups have been very 
explicit in stating their objective is to rid our public lands 
of all cattle grazing.
    Unless Federal agencies somehow find a way to meet their 
requirements or the ESA sees some substantive changes, the 
present ESA and all of its procedural requirements has and will 
continue to be a very effective tool in achieving these groups' 
political--and I stress--not biological agenda.
    In the meantime, the ESA will continue to be used to 
achieve a political agenda, and we will continue to argue how 
ineffective the Act is at recovering species.
    I know I've covered a lot of ground here very quickly; but, 
everything which I discussed is outlined in greater detail in 
my written testimony which I've already submitted to your 
staff. And, once again, I thank you for this opportunity.
    Mr. Pombo. Thank you for your testimony.
    [The prepared statement of Mr. Moore may be found at end of 
hearing.]
    Mr. Pombo. Thank you for your testimony. I thank the entire 
panel. I would like to start with Dr. Fowler. To open up your 
testimony, you talked about your wish to preserve biodiversity 
and to use good science in the decisions that are being made. 
Do you believe that good science is being used in--in the 
current implementation of the Act?
    Dr. Fowler. That is explicitly accurate.
    Mr. Pombo. What is driving it? Why would the agencies, 
which are required to use good science, that by their own 
admission claim that they are using the best available data, 
what--what would be driving them to use science that is not 
peer reviewed, that is not accurate, that may be biased or 
politicized?
    Dr. Fowler. Well, that's a very encompassing question, Mr. 
Congressman. We have in the west example after example of where 
moves are made before data recovery plans are completed, before 
the blueprint for recovery is being finished. Example after 
example of where they've jumped the gun either for political 
reasons, or as Mr. Moore has described, they've been forced 
with these actions.
    We are seeing a transition from consumptive use to non-
consumptive use. We are seeing where the--in the west, there 
are rights associated with water rights that are clouding the 
title of the Federal Government and the U.S. Forest Service 
lands, and Bureau of Land Management lands, and we are seeing 
where the easiest way, the most--quickest way to remove these 
clouds of title are through a surrogate such as endangered 
species so they will get in-stream water flows.
    They can retain water for endangered species at all levels 
of the river system, and that the Federal Government can retain 
these rights. I do believe there is some very, very clandestine 
motives that aren't immediately obvious to everybody, and that 
we are falling directly into this mood of transferring 
ownership from the private sector to the Federal sector.
    Mr. Pombo. I've often believed that with the number of the 
species that I've seen, I've had the opportunity to go around 
the country quite extensively and look at some of the 
endangered species problems that they've had, and it appears 
that with a lot of the problems, that there are--there is 
another agenda associated with a particular listing.
    Mr. Moore said something about removing cattle, and the 
other two gentlemen, by removing cattle from the public lands 
as being part of the agenda out west. We had people that have 
admitted that if it wasn't for the spotted owl, they would have 
had to have created one in order to get the loggers out of our 
forests.
    Do you believe that the Federal Government, that the 
Endangered Species Act, the way it's being implemented today, 
is susceptible to that kind of manipulation of the Act?
    Dr. Fowler. Yes, sir, I do. Johanna Wald, Natural Resource 
Defense Council, I believe has testified on your Committee, if 
we cannot price livestock off the western range, we will policy 
or litigate them off. It's--you know, we are falling exactly 
into the line that has been prepared for us. This is not an 
accident.
    Mr. Pombo. The--getting back to your original comment about 
bio diversity and the importance of maintaining bio diversity, 
I would assume that is part of your training, is to--to 
understand the importance of bio diversity in this country and, 
in fact, throughout the world.
    Having said that, do you believe that there is any way that 
man can stop species from becoming extinct?
    Dr. Fowler. Yes, I do. I believe man has a direct impact on 
species, both negatively and positively. You know, it's no 
accident that 75 percent of endangered species are located on 
private land. Individuals, who through generations, know how to 
nurture species. They do not rape, pillage, and plunder in the 
short run if they're going to be there for generations.
    It's common knowledge that a mid-seral state type is often 
more conducive to more species richness than all the way to an 
excellent condition. Trying to manage for the infinity is 
usually moving toward a single species. Whereas, if you'll keep 
in a lower seral state, you'll have more species richness, not 
only in vegetation, but also all the interrelationships between 
the animals, insects, arthropods, et cetera, that co-mingle.
    So, attempting to go to excellent condition is the wrong 
move. We are going beyond the optimality position. And 
management, Mr. Chairman, is the key to success. People are the 
key to success. They're not the problem. They have the 
knowledge through time or those species wouldn't be there, and 
we just haven't recognized that.
    We have to get back to the people who know how to work the 
land. And we are moving as fast away from that as possible, Mr. 
Chairman. And that is the wrong--absolutely the wrong 
direction.
    Mr. Pombo. A final question that I would like to ask you, 
if we changed the incentives that are currently in the Act so 
that instead of the Endangered Species Act being seen as a 
negative by property owners and property managers, but instead 
as a positive, say that there were tax incentives for creating 
habitat, that there were awards and rewards that were available 
if you increase the amount of habitat and consequently the 
number of endangered species on your property, do you think 
that would be an effective tool in managing the recovery of 
endangered species versus the fear that many property owners 
have today?
    Dr. Fowler. I think that would be a major start forward, 
Mr. Chairman. The agricultural industry, No. 1, is--is a stable 
industry throughout the west. Other industries come and go, 
have peaks and troughs, but agriculture, in general, through 
time, has been a stable industry. And this industry responds to 
price. They have always and will always respond to price. 
That's the very nature of the individuals.
    You give them a positive signal on a product, and they will 
produce it, and that includes endangered species. We have not 
given them the correct signal. As a matter of fact, we've given 
them the reverse signal.
    Mr. Pombo. Thank you. Mr. Redmond?
    Mr. Redmond. Thank you, Mr. Chair.
    Dr. Fowler, a couple of questions on your--on your 
testimony. You said that in--And this is--Maybe I didn't--This 
is for clarification purposes. I'm not sure I understood this.
    You said that in your 20 years, you've not seen a field 
worker from Fish and Wildlife out in the field dealing with the 
endangered species; is that correct?
    Dr. Fowler. That is correct.
    Mr. Redmond. Can you clarify--I mean, what--what--what do 
you mean ``out in the field''? Are you talking about out in the 
streams and the forests, or are you talking about at the 
university or in the field office? What--what do you mean by 
``out in the field''?
    Are you--are you indicating that they're sitting somewhere 
behind a desk in Santa Fe or in Washington making these 
decisions without coming out and physically being present in 
those communities? Can you describe that for me? I didn't----
    Dr. Fowler. Yes, sir.
    Mr. Redmond. I didn't clearly understand that.
    Dr. Fowler. Oftentimes, in my role as coordinator of the 
Range Improvement Task Force, we get on the ground with 
individuals on allotments in the forests, in the rangelands, in 
the riparian areas; and, during those times there is usually an 
interaction between the industry and the agency.
    And the agencies that are represented there are the U.S. 
Forest Service and Bureau of Land Management. And it's their 
biologists that are on the ground. Those people then feed the 
U.S. Fish and Wildlife Service and because of Section Seven of 
the Endangered Species Act, they have been put in the driver's 
seat as the only biologists of record.
    You cannot get those people out of Albuquerque.
    Mr. Redmond. So--so, what you're saying is that we get the 
scientists from the university, we get the scientists from the 
Forest Service; but, the scientists who are directly 
responsible for the implementation through the Fish and 
Wildlife will not and have not historically been in the field?
    Dr. Fowler. That is correct, Mr. Congressman.
    Mr. Redmond. You spoke about data being cast aside. Can you 
describe the kind of data that you're speaking about?
    Dr. Fowler. I was referring to a case brought up earlier by 
the panel, Mr. Pattison, who was speaking to the Pecos 
bluntnose shiner. And, here, that species was studied starting 
in 1991, and they have been looking at the impacts of the 
current irrigation regime on the bluntnose shiner. And it was a 
5-year study that was continued for three more.
    And at the end of the 5 years, an additional two, 7 years, 
there was a tenfold recovery in these species itself. Rather 
than that being accepted as a positive success, what we're 
seeing now is a change to a recommendation for a continuous in-
stream flow of 35 cubic feet per second for this fish when the 
last 7 years of data would contradict that need, as an example. 
After years of study, once again this agenda, Mr. Chairman, is 
not being met. And the data was cast aside.
    Mr. Redmond. Mr. Chairman, may I request that that data be 
entered into the record for this hearing?
    Mr. Pombo. Without objection.
    [The information referred to may be found at end of 
hearing.]
    Mr. Redmond. Thank you. And I personally would also like to 
have a copy of that, Dr. Fowler, not only for the Committee, 
but also for my personal use, as well.
    I just want to make one comment before--before I hand the 
microphone back. And there is terminology being used that I 
think that we need to very clearly delineate and understand 
what we're talking about.
    One of the terms today was that there is good science and 
bad science. As one who holds a master's degree in philosophy 
and the focus of my research is philosophy of science, there is 
no such thing as good science or bad science. There is science.
    The Latin word for science means certain knowledge, and 
what we have here is, we don't have bad science, we have 
ignoring science. We have people, professionals in the field, 
whether they're with Fish and Wildlife, whether they're with 
another agency, that are ignoring the data such as what Dr. 
Fowler is talking about here.
    It is not scientific to discard data. That's not science. 
That is not a part of the scientific method, never has been, 
never will be. And so what we have is, we don't have bad 
science, we have people that are ignoring science.
    And I would like to--and the reason I'm stating this on the 
record is that it's very important that we collect all data 
that is relative to the issue and we acknowledge that as 
relevant data that will bring us to the conclusion of science, 
the certain knowledge on these issues.
    Mr. Pombo. I wanted to--I thought of another question I 
wanted to ask Dr. Fowler before I move on. In your testimony, 
you talked about, I believe you said, 22 species that have been 
mentioned recently by the secretary for delisting. We've had 
the opportunity, and I believe the figure is now up around 30, 
that depending on which press release you read, I think if you 
put them all together you're up around 30 now that have been 
proposed for delisting or down listing.
    In doing an analysis of the species, I believe it was six 
of those species are extinct and should never have been put on 
the list. The vast majority of the species were errors and 
miscountings, things that were not species that got listed as 
separate species. I do not believe that there is a single 
species on the list that you can say was a recovery of the 
Endangered Species Act or as a result of the Endangered Species 
Act.
    Do you have any information that would be contrary to that, 
because the Committee has looked into this, Committee staff has 
looked into this. And if you do have that, I would--I would 
like to have that.
    Dr. Fowler. I personally do not, Mr. Chairman. We do have a 
Ph.D., in wildlife biology, and I will inquire of him and make 
the information from him directly available to the Committee.
    Mr. Pombo. Yeah, if--if you or the university or any of 
the--the other scientists that you work with have any 
information about any of those species that could be as a 
result of the Endangered Species Act, we would like to find a 
recovery where the Act actually worked so that we could use 
that as a model. And we have had a very difficult time finding 
any where they actually worked and a species was recovered 
because of anything that was done under the Endangered Species 
Act.
    [The information referred to may be found at end of 
hearing.]
    Mr. Pombo. The--Mr. Moore, you--you seem fairly confident 
that livestock grazing and the Southwestern willow flycatchers 
can co-exist. Do you have any direct evidence of that, 
scientific evidence of that, that you could present to the 
Committee?
    Mr. Moore. Yeah, you're--you're basically looking at two 
controversies whenever you're talking about conflicts between 
livestock grazing and flycatcher viability. The first is the 
cowbird brood parasitism issue which I discussed briefly. In 
addition to the scientific data not supporting that 
relationship, we also have field data showing that where 
livestock and flycatchers were both present, cowbird brood 
parasitism rates were insignificant on the flycatcher 
populations.
    The second prevailing assumption that's going through a lot 
of Federal documents right now is that livestock grazing will 
destroy flycatcher habitat. I would like to bring up an area 
that has already been brought up a couple of times; and, that's 
the U-Bar Ranch, which is a privately owned and privately 
managed ranch in western New Mexico.
    This single ranch contains--Depending upon whose numbers 
you use, that ranch contains one-third to one-half of the known 
Southwestern willow flycatcher population in the world. In 
addition to that, this ranch also grazes several hundred head 
of livestock.
    One thing that I found kind of interesting in a report that 
I read recently on this issue, a report done by Forest Service 
biologists who did a study last year and they looked at two 
areas in riparian habitat where flycatchers were nesting. One 
area, they excluded livestock grazing; another area, they 
didn't exclude livestock grazing.
    There was no statistical significant--There was no 
statistically significant difference between those two 
populations. In fact, if you just look at the raw numbers, 
nesting success in the area where livestock were not excluded 
was actually 10 percent higher. But, like I say, that's not a 
statistically significant difference.
    Mr. Pombo. You said that, in your testimony, that the 
science was gathered. Just for the record, who did this 
particular study?
    Mr. Moore. It would be Stoleson and Finch. I think it is 
Scott Stoleson and Deborah Finch, U.S. Forest Service, Rocky 
Mountain Forest and Range Experiment Station.
    Mr. Pombo. So, was it federally funded?
    Mr. Moore. Yes, that was a Federal study.
    Mr. Pombo. And has Fish and Wildlife used that information 
in determining the proper recovery plan?
    Mr. Moore. No, that's--that goes back to something which 
Dr. Fowler mentioned, all of this--all these decisions are 
being made; yet, the Fish and Wildlife Service hasn't come out 
with a recovery plan yet for this species.
    All these decisions are being made, individuals are being 
hurt, but nobody has sat down to take a look at the science and 
said, ``OK. What do we need to do to recover this species?'' 
That hasn't happened yet. The Fish and Wildlife----
    Mr. Pombo. The enforcement actions aren't taking place?
    Mr. Moore. Yes, that's correct. The Fish and Wildlife 
Service has got a policy that states very explicitly that it 
will develop recovery plans for species within two and a half 
years of listing. Southwestern willow flycatcher recovery plan 
is already a year overdue, and it's probably going to be at 
least another year before we will even see a draft.
    Mr. Pombo. You made another statement that I'm curious 
about. You said that on this particular ranch was one of two 
places of known populations of--of this particular flycatcher. 
When were they discovered on this particular ranch?
    Mr. Moore. There is is some studies going back from 
probably the mid-eighties that knew that those flycatchers were 
out there; but, they've not been intensively studied since 
probably about 1994 on.
    Mr. Pombo. And have other scientists gone out to other 
ranches to see if they had populations of flycatchers?
    Mr. Moore. No, I don't think you're going to see that 
happening.
    Mr. Pombo. I'm always curious when they say that these are 
the ``only known populations,'' because until they found them 
there, they didn't know they existed there. So, how do they 
know they're not somewhere else?
    But it--I see that come up often in data that we get from 
reports from the Forest Service and Fish and Wildlife, that 
these are the only known population and they're the only ones 
left in the world and so on. And I always wonder how they know 
that.
    But, Mr. Eppers, in your testimony, you talk quite 
extensively about the states having jurisdiction in managing 
wildlife within their borders. Do you feel that the State of 
New Mexico is competent to handle endangered species recovery?
    Mr. Eppers. Well, I certainly do, Mr. Chairman, because 
they already have the mechanism in place. They have the 
conservation services division set up, state listed species. 
They're already involved in the management of endangered 
species in conjunction with the management of other--a 
multitude of other wildlife species, and I think that they 
could handle it much better than what the feds have 
demonstrated they can do up-to-date.
    Mr. Pombo. The way the Act is currently being implemented 
gives little or no opportunity for state involvement in the 
recovery of species, let alone private individuals involved in 
it.
    And just for my own knowledge, amongst the cattlemen, 
amongst the property owners, are they typically more willing to 
work with the state officials or with Federal officials in 
terms of trying to recover these species in property 
management?
    I know you had some state listed species, and, you know, 
there is some differences there. Amongst the general 
population, how is the feeling toward the state agencies? Is it 
generally positive or is it negative?
    Mr. Eppers. I think with any--anything related to 
endangered species you have a certain amount of fear from the 
landowners that an action can require them to lose their 
ability to manage their land.
    But that has not been that prevalent within the state 
agency. They have been involved in working, I think to some 
degree, with landowners; and, at least we find them out in the 
field occasionally.
    As Dr. Fowler has already indicated, you don't find the 
Fish and Wildlife Service out in the field. We can communicate 
with the Forest Service and BLM, State Game and Fish Department 
personnel; but, we don't have the opportunity to visit with the 
Fish and Wildlife Service or the--any of the other Federal 
agencies involved with endangered species.
    Mr. Pombo. Amongst the other suggestions that--that you 
have made, you seem very confident that the current 
implementation of the Act has not worked and, in fact, should 
be repealed. Do you think that there is a need to have an 
Endangered Species Act to protect species?
    Mr. Eppers. I find it very hard to support the Endangered 
Species Act as it has been managed in the past and is presently 
being managed. I cannot see any relevance to the improvement of 
any species as a result of the Endangered Species Act. The 
species that they always refer to as being recovered or 
propagated under the Endangered Species Act have all occurred 
under other Federal Acts, not the Endangered Species Act, the 
bald eagle, alligators in Florida, et cetera, et cetera.
    I--there again, I think that the people on the ground 
within the states have the ability to recognize if the species 
is threatened or endangered; and, if they do, they have the 
means and the availability, especially here in New Mexico with 
a Range Improvement Task Force team and the scientists that sit 
on that team to address and come up with a way to protect that 
species and enhance or recover the population.
    Mr. Pombo. Thank you. I just--to finish up with this 
panel--You have additional--OK.
    Mr. Redmond. Mr. Moore, earlier Dr. Fowler was mentioning 
the precautionary principle. Based on the information that you 
have testified here this morning to, the--this--in this 
hearing, that the Southwestern willow flycatcher, based on the 
information that you have, has reproduced itself more in the 
presence of cattle as opposed to the absence of cattle; is that 
correct? Do I understand that correctly?
    Mr. Moore. Well----
    Mr. Redmond. I know you said it was a minor statistical 
deviation, but it's still a statistical deviation?
    Mr. Moore. Yeah, just looking at the raw numbers, I believe 
it was in the area where livestock were not excluded, nesting 
success was 61 percent. In the area where livestock was 
excluded, nesting success was 51 percent.
    Mr. Redmond. OK. So, what that does is, that calls into 
question the precautionary principle, because the precautionary 
principle says ``do not intervene,'' presupposing that if 
intervention should occur, the damage would be done. When, in 
this case, by not intervening, causes damage.
    So, it brings into question the whole policy decision 
regarding the precautionary principle. Is that--would that be--
--
    Mr. Moore. I wouldn't dispute that a bit. As a matter of 
fact, I would agree with that 100 percent that there just--
there seems to be this over--overriding, prevailing assumption 
that we have to take this better safe than sorry approach, 
whether or not science is directing our actions or not.
    Mr. Redmond. Right. And in this case, you know, the idea 
is, that if we touch it, it could get--it could be harmed; 
where, in reality, if we don't touch it, it will be harmed.
    So, I think that as we discuss, Mr. Chairman, in the future 
however the Endangered Species Act, when it is amended--when it 
is amended that we take into consideration not only a clearly 
defined definition for threatened species and endangered 
species, but also the role of the precautionary principle 
policy, because we may be doing species harm by not 
intervening, and this is one example.
    Oh, I've got one more for Mr. Eppers. You mentioned 
something about possible funding for Federal listed species 
could be voluntary contributions provided for on an individual 
basis on the income tax form. So, you could either vote, you 
know, to put the dollar in the Presidential election, or you 
could vote to save the willow flycatcher?
    Mr. Eppers. Certainly.
    Mr. Redmond. Well, I'm glad I have a choice. But I guess 
once the money goes into that fund, you're recommending 
something like price supports for spotted owls; is that--No, I 
mean, theoreti-

cally, you know, I think that one--one of the main problems I 
believe that we're having with the implementation and our 
desire to save endangered species is that we're taking a heavy-
handed central government approach as opposed to an approach 
that, No. 1, honors the right to private property; No. 2, 
honors the inevitable market driving forces; and, you know, No. 
3, that it is based on sound science and not faulty procedure.
    So, I have no problem with recovering a species by using a 
market approach as opposed to a central government approach, 
and, so, you're--you're--you have created somewhat of a--of a 
hybrid here where, yes, it's partially market; but, yes, it's 
partially Federal.
    And so my question is that if we were to have this check-
off on our taxes and people who do not live on the land as you 
do, if they're so concerned about the species that you have to 
live with, that they should accept some responsibility and this 
would be a way that they could accept some of that 
responsibility.
    In terms of implementation of that, we're basically looking 
at something like price supports for spotted owls; is that not 
correct?
    Mr. Eppers. Yes, it could be considered that, Congressman. 
And I--I just feel that--that if the people that really have an 
interest and a desire to protect endangered species want to 
participate in the process, they could contribute some funding 
toward that goal.
    I think the abuse of the Act as it has been, the vast 
expenditure of funds that several of the panelists have already 
identified, really has not helped the endangered species. And 
if people knew how high the products that they are purchasing 
in the marketplace today have elevated just because of the 
Endangered Species Act, it would be quite frightening to them.
    You look at our timber industry. It no longer hardly 
prevails in this country. We're importing our timber. We're 
importing our oil and gas. We are vast approaching importation 
of our food supplies.
    And if we don't change this thing around, I really fear 
that--that we're going to be dependent--totally dependent on 
foreign sources for our necessary needs. And I just think that 
the people, that if they're really concerned about endangered 
species, they should put some money into the process.
    And it may be a price support for spotted owls, but it--it 
certainly would help find out just how much public support 
there is, truly, out there for endangered species.
    Mr. Pombo. Mr. Pacheco?
    Mr. Pacheco. Gentlemen, I support by some examples. I don't 
believe in Federal supports for the endangered species, per se. 
I think that people on the ground do a better job.
    Let's look at New Mexico and an example at the Gila Grande, 
the Caldero location that the government is trying to buy right 
now, and--and I support that. In New Mexico, at the turn of the 
century there was no elk. Today we have an overpopulation 
because people on the ground felt that that species needed to 
be in New Mexico.
    Now the endangered species terrorists say that cows and 
others are doing damage to the streams, endangering other 
species. Basically, I showed people on tour at the Gila Caldera 
that the only ones that wallow in the river eating off the 
stream were the elk, and we saw groups of 50 to 100 elk in the 
streams eating off of the banks.
    Where were the cows? And that's a cow ranch with over 7,000 
head there. Thousands of yards away from the stream. They only 
go there to drink.
    So, again, if you're going to use science, do it like John 
Fowler--and we've been on the ground together a lot--says, by 
being on the ground. A lot of people sit on the back and make 
decisions without ever going and visiting my place, and it's 
become a money-making, defrauding tool for these groups to 
pursue money by going after endangered species protection 
without no science.
    Mr. Pombo. Let me ask you this then, in Mr. Eppers' 
testimony, he talks about, I believe it was in Las Vegas, a 
developer that paid $40,000 per turtle to relocate turtles. How 
many cattlemen in this area would give up grazing cattle for 
$40,000 turtles if they could raise turtles instead?
    Mr. Pacheco. Let me--Let me put it in the context of the 
north central New Mexico. We've been harvesting a living in 
that area for 400 years. We've lived, we've raised families, 
we've existed and invited everybody to come, and they have and 
found the purest state of beautiful God's country. You couldn't 
change our way of living.
    You know, we do other things, but cattle business is in our 
blood. It's--It's our tradition. It's our lifestyle, and we're 
going to do it till all of us die. I have a son that's in it. I 
have a grandson that's in it. My parents and grandparents were 
in it, and we're here to stay.
    And we've seen a lot of Santa Fe raid proponents. Sam isn't 
here because he thought that I would question his motives. Not 
even the environmental community likes Sam because he is a 
radical.
    Mr. Pombo. I say--I say about the $40,000 turtles half 
sarcastically. But we talked about incentives earlier, and I 
believe very strongly that if there were incentives within the 
Act for people to create habitat and create more endangered 
species on their property, that they would do it.
    Mr. Pacheco. We're doing that now, Congressman. The New 
Mexico--North New Mexico Stockmen and our 2,500 members are 
cooperating with the conservation fund, the extension service, 
and the Forest service on top of Glorietta Mesa to improve the 
range which improves a habitat, and that's how the species will 
truly survive.
    You know, the biggest threat to species is urbanization. If 
you congregate a lot of people in an area, species will go 
away. They're not dumb. If you protect and improve that range, 
the way we live, species will flourish.
    You know, money isn't everything. I like the way I raised 
my children and where I raised them. And I think they're going 
to like the way they raise their children and their 
grandchildren. After all, we've been here for 225 years under 
Spain, 25 years under Mexico, and 150 years under the United 
States. We haven't changed much. But from the outside, people 
have tried to change us. It just didn't work.
    Mr. Pombo. Well, I--I thank the panel very much for your 
testimony. It was very informative for me and for the 
Committee.
    As we work toward making changes and trying to develop an 
Endangered Species Act that works for people as well as for 
wildlife, the testimony we've received here today will be very 
valuable in that effort.
    I will excuse this panel. Thank you very much for your 
testimony.
    Our structured panels have completed their testimony and 
the questioning. At this point we will begin an open microphone 
session of ten witnesses who have already signed up to speak. 
Each witness will be given 2 minutes to speak. A yellow light 
will come on after 1 minute and a red light at 2 minutes.
    I would like to now ask the first five witnesses to be 
ready to testify and come forward. Caren Cowan, Sharon 
Lombardi, Lewis Derrick, and John--John C. Williams, and Carl 
Hahn, if you would come up, please.

                    STATEMENT OF CAREN COWAN

    Ms. Cowan. Mr. Chairman, Congressman Redmond, my name is 
Caren Cowan. I work for the New Mexico Cattle Growers. I'm a 
native of the southwest and a private landowner and very 
concerned about where we're heading with the Endangered Species 
Act.
    You expressed some concern this morning that the 
environmentalists didn't want to come to this hearing. I would 
submit to you that the environmentalists are in this room. The 
radicals didn't want to come to this hearing. So, we need to 
look at it from that perspective.
    Those folks have an agenda which you've alluded here today. 
Mr. Hitt's own organization has said that cattle are exotic 
pests that have no place in the State of New Mexico. So, I 
think that pretty well outlines their agenda very rapidly.
    And then they take that a little bit further. Yesterday 
morning I heard a lady on television talking about the--all the 
damage that was done in Vail, and it was referred to as eco-
terrorism. And she said, ``Oh, no, that's not terrorism. 
Terrorism is when you hurt people. We were just vandalizing.'' 
I don't know how any--I don't understand that thought process.
    But with that said, I stand before you on behalf of several 
people on the western side of the state. I talked to you 
earlier this morning about coming back and perhaps doing a 
hearing that they can get to. This was an awful long drive for 
them.
    I would like to enter into the record letters that they 
sent over for your consideration today, and then there is one 
lady who is actually not a member of Cattle Growers right now, 
who can't afford to be, who owns a BLM permit over in the 
Grants area, which is in Congressman Redmond's district.
    On the top of the stack that I'm about to give you is a 
letter that's not dated that she got from the Farmington 
resource district telling her that her permit has been cut in 
half. She can only graze from the 10th of October till the 5th 
of May because of the willow flycatcher.
    This lady is single. She has got a family she is trying to 
raise. She has a sick grandchild. She actually called my office 
the first time from Ronald McDonald House because her 
grandchild was in--was hospitalized.
    She doesn't know where she is supposed to go with her cows. 
She has had this permit for 50 years, and these are the 
questions that we need answered for our people.
    Thank you so much for your time, and thank you for being 
here. We look forward to seeing you again.
    Mr. Pombo. Thank you. Without objection it will be included 
in the record.
    [The letters will be kept on file at the Committee Office 
in 1324 Longwoth Building, Washington, DC.]
    Mr. Pombo. Sharon Lombardi?

                  STATEMENT OF SHARON LOMBARDI

    Ms. Lombardi. Sharon Lombardi, Executive Director of Dairy 
Producers of New Mexico. We appreciate you being here, Mr. 
Chairman and Congressman. We know it's far from Washington and 
it gives us an opportunity to tell you how we feel.
    Dairy Producers of New Mexico is an association of dairy 
producers in our state. We represent about 90 percent of all 
the milk produced in the State of New Mexico, and we now are 
No. 10 in the Nation in milk production.
    We want to go on record to say that we are also concerned 
about the Endangered Species Act. We're concerned about how it 
impacts our state, our indigenous people, our industry, and our 
homes.
    We know that we need to have a balance; and, this, I know, 
is going to be hard for Congress to come up with because I know 
how it is out there with so many people giving input. But we 
need to have a balance by using good, sound science or by not 
ignoring science, as our Congressman said, to ensure that we do 
protect our endangered species, but--but not--but not to take 
away our personal property rights.
    As it was said earlier, it is not between livestock and 
endangered species or people between the endangered species.
    Thank you.
    Mr. Pombo. Thank you.
    Lewis Derrick?

                   STATEMENT OF LEWIS DERRICK

    Mr. Derrick. My name is Lewis Derrick. I own a small ranch 
in southeastern New Mexico east of Dexter and also work for a 
larger ranch.
    I guess there is no common sense in the Endangered Species 
Act, or that's my opinion. I have the prairie chicken. I have 
the sagebrush lizard on my property. Well, they say they have 
to have the cover for the chicken. Then you have to have the 
dunes--sand dunes that blow out or open for the lizard. They're 
either going to have to take my cattle off, or they're either 
going to have to let me overgraze it where I can make the--the 
sand dune lizard habitat.
    I think if they're--the management of the spotted owl may 
be destroying 100 other species. Are you going to manage one 
species to destroy 1 or 200 more?
    Another common sense approach is the bluntnose shiner and 
the Arkansas River shiner. Well, the Arkansas River shiner is 
endangered in the Canadian River. But it's abundant in the 
Pecos River. And in the Federal Register, it states that the 
Arkansas River shiner takes over the habitat of the Pecos 
bluntnose shiner. Well, why don't they take the Arkansas River 
shiner and put it up in the Canadian River and it won't be 
endangered there and then the Pecos bluntnose shiner can have 
its habitat?
    Well, you go into the prairie dog. Well, they're worried 
about the black-tailed prairie dog, and then they introduce the 
black-foot ferret, another endangered species, and they 
predatorize on black-tailed prairie dogs. And then they want to 
introduce the wolf in the same area. It don't make any sense.
    The--also, the Pecos pup fish, they habitize with other 
species of fish, and I just think there needs to be some common 
sense out there. And I might raise a prairie chicken for 
$40,000 a pair.
    Thank you.
    Mr. Pombo. John Williams?

                 STATEMENT OF JOHN C. WILLIAMS

    Mr. Williams. Mr. Chairman, Congressman Redmond, it's a 
pleasure to be allowed to speak to you today. Thank you again 
for coming to this region.
    My name is John Williams. I'm General Manager for the 
Canadian River Municipal Water Authority. We operate Lake 
Meredith on the Canadian River north of Amarillo as a municipal 
industrial water supply for 11 cities in the Texas Pandhandle 
and South Plains.
    We're definitely in the apprehension category concerning 
the Endangered Species Act. We've been waiting for the other 
shoe to drop for about 4 years now with regard to the listing 
of the Arkansas River shiner.
    And as we've watched this process, we've come to believe 
more and more that the Endangered Species Act is sort of like 
Alice in Wonderland. If you look at it more and more closely, 
it becomes curiouser and curiouser.
    First of all, the Fish and Wildlife Service, as you've just 
heard, does not like the fact that species sometimes move from 
one habitat to another. There is a species of the Arkansas 
River shiner or a population of the Arkansas River shiner in 
the Pecos River doing very well. But they want to eliminate or 
eradicate that population of the species and then regulate the 
people using the Canadian River to try and restore it somehow 
or other in that area.
    The fact that the litigation is used as a means of managing 
land and resources to suit the peculiar aims of individual 
groups seems very curious, and that--that you've heard a lot 
about and is definitely one of the problems with the Act.
    You've heard--heard about the fact that the Service uses--I 
forget the term that was used before, but I'll call it 
prospective harm as a means of trying to regulate the species. 
You have to prove that you're not going to do harm to the 
species, instead of the service having to prove that you are. 
It's like dealing with the Internal Revenue Service.
    We wanted to take the salt out of the Canadian River in 
some areas, but they said, ``Well, that might harm the Arkansas 
River shiner.'' And they made us prove that it wouldn't harm 
the Arkansas River shiner. So, you're guilty until proven 
innocent.
    So, I certainly hope that you can overhaul the Endangered 
Species Act. I know there is very little likelihood of being 
able to repeal it; but, I certainly hope that it can be 
instilled with some degree of common sense and some 
functionality that will actually help endangered species 
instead of harming people.
    Thank you.
    Mr. Pombo. Thank you.
    Carl Hahn.

                     STATEMENT OF CARL HAHN

    Mr. Hahn. Mr. Chairman, my name is Carl Hahn. I'm involved 
in banking here in Curry County and I also run cattle.
    One thing I would like to start out with is, I can verify 
Mr. Pattison's observation that the prairie dog is alive and 
well in Clovis and Curry County. Just last week I was walking 
into Wal-Mart, and there was one roosting out there on the 
porch in front of me, so I do know that they are in this area 
less than a mile away.
    I'm not going to sit here and tell you that I'm qualified 
to talk about all the endangered species, but the one species 
that I am qualified to talk about that is in danger is the 
American farmer and rancher. These folks are going through a 
real tough time. The drought that we've had in various parts of 
this state this year, low cattle prices and crop prices 
definitely have an effect and an economic impact on this area.
    It's pretty tough when you're trying to sell 58 cent fat 
cattle and $2 corn and make things work and compete in the 
market buying $30,000 pickups and other items.
    One thing I would like to say is, I would appreciate it if 
you would listen to these folks. They're involved in this every 
day. They know what is going on out there, and they--anything 
that's done as far as passing legislation and laws will have an 
impact on them, thus having an economic impact on them and on 
our community, as well. So, I would appreciate it if you would 
look diligently at this and take any consideration into fact 
that these folks are out making their living and it affects 
them.
    Thank you.
    Mr. Pombo. Thank you.
    The next five that we have are Karen Mitchell, Bob Frost, 
Tom Payne, Bobbie Mallory, and Anna Marie Crook.
    Carol--Karen, go ahead.

                  STATEMENT OF KAREN MITCHELL

    Ms. Mitchell. Good morning. My name is Karen Mitchell, and 
I appreciate the opportunity to visit with you this morning, 
and I thank you both for being here.
    My family has a cow-calf and stocker ranch in northeastern 
New Mexico which has been in our family in excess of 100 years. 
The ranch is almost exclusively private property. I appreciate 
the opportunity to share with you just one way that we have 
already been impacted by the Endangered Species Act.
    Historically, we have attempted to have an open-door policy 
concerning having individuals, governmental agencies, and state 
agencies on our property to perform research and just enjoy the 
open spaces. Since the Endangered Species Act, we are far more 
cautious about allowing any individuals on our property.
    According to current practices for species listing, even 
the identification of potential habitat can create adverse 
effects on our oper-

ation. One example is the mandatory fencing of a riparian area. 
A very real fear under the Endangered Species Act is the 
ability that our private property rights will be violated; 
consequently, we close our borders.
    We'll be the first to admit that we make mistakes; however, 
we resent the fact and the ability under the Endangered Species 
Act for those individuals who are not on the land, have no risk 
of livelihood, and no risk of lifestyle to mandate our 
management practices.
    Our desire is to preserve our way of life and the 
environment which we have been entrusted with for generations 
to come. Our concern is that with the Endangered Species Act, 
our ability to do this is in grave jeopardy.
    Thank you.
    Mr. Pombo. Thank you.
    Bob Frost.

                     STATEMENT OF BOB FROST

    Mr. Frost. Mr. Chairman, Congressman Redmond, I am Bob 
Frost. I'm the current President of the New Mexico Cattle 
Growers Association; but, today I am here as a private 
landowner here on the east side.
    Currently, I am the caretaker and owner of a four-
generation ranch where we all work together. Stewardship of 
this land is very important to me, and--and I am going to pass 
this on to the following generations.
    The land and its natural inhabitants work together well. 
The Endangered Species Act, when implemented without sound 
scientific information, has cost ranchers and counties a lot of 
money. Ranchers and farmers have a tough time already.
    Something like the Endangered Species Act, in its present 
form, cost--could cost us our land. If we have to move cattle 
off the land, where does the county get its property tax as 
well as its cattle inventory?
    The Endangered Species Act, in some cases, has created 
takings, and the Constitution says if things are taken, you 
should be compensated. If you cannot use your land because of 
the Endangered Species Act, it has been taken. We would rather 
use our land.
    Mr. Pombo. Tom Payne.

                     STATEMENT OF TOM PAYNE

    Mr. Payne. Mr. Chairman, Mr. Redmond, thank you so much for 
the opportunity to speak. My name is Tom Payne. I'm a private 
lands rancher in central northern New Mexico. Mr. Carl Hahn was 
just up here a few minutes ago. He is my banker, and he is 
right, there are some of us out there who are--may well become 
endangered species.
    You know, we produce the food and fiber that feeds and 
clothes a dynamic, growing nation, and we would appreciate the 
opportunity to continue to do that. A number of years ago my 
wife and I acquired a ranch that had not had any livestock on 
it for a period of 7 years. The land, the vegetation had 
climaxed within 5 years of becoming a degenerative state. But 
the upshot of the whole situation was, there was no water on 
the land because it was mostly fed by pipelines with sprinklers 
on those pipelines. There was no wildlife. There was no birds. 
It was kind of spooky. There were no deer. There were no 
antelope.
    After we acquired the ranch, we put cattle back on it. We 
put water back in our pipelines. We developed more watering 
systems. The wildlife has come back. We have a good population 
of antelope now. We have a good population of deer. We've 
reintroduced quail, and we have a nice population of tortoises.
    Mr. Pombo. And they're for sale, right?
    Mr. Payne. We can work out a deal on those tortoises.
    I said all this to say the rancher is the true steward of 
the land. We're on the land. We're not going to--We're not 
going to destroy our only means of making a livelihood.
    As Ms. Mitchell also pointed out, we don't let a government 
official come on our land now. A member of the Soil and Water 
Conversation District recently made the comment to me that he 
was required to watch for endangered species anytime he was on 
the property. Consequently, any improvements that my wife and I 
do to our property, we will do on our own without any help from 
anyone.
    Thank you. And I wish you both great success in your 
upcoming election.
    Mr. Pombo. Thank you.
    Bobbie Mallory?

       STATEMENT OF BOBBIE MALLORY, STATE REPRESENTATIVE

    Ms. Mallory. Thank you. Thank you for hosting this meeting, 
Mr. Chairman and Congressman Redmond.
    I'm Bobbie Mallory, the State Representative for six 
counties on the eastern and northeastern part of the state, and 
agriculture is the life blood of my district. If agriculture is 
doing bad, my towns are doing bad.
    I'm deeply concerned about the potential effect the 
Endangered Species--excuse me, Species Act has on the farmers 
and ranchers in my district and across the State of New Mexico. 
The threat of the prairie dog and lesser prairie chicken being 
declared scares me to death.
    While visiting Lake Sumner this summer, we had, gosh, the 
hottest summer I ever remember. We were going through a heavy 
drought. As a matter of fact, all six of my counties were 
declared a disaster because of the drought.
    And at that particular time, there was the water being 
drained because of the minnow; and, by the time this water got 
to Roswell from Lake Sumner, half of it was lost due to the 
evaporation and seepage. And it really upset me because our 
farmers and ranchers need that water. We're the third driest 
state in the nation.
    I ask that you all review the Endangered Species Act and 
make some revisions to it. Thank you very much.
    Mr. Pombo. Ann Marie--Anna Marie Crook.

      STATEMENT OF ANNA MARIE CROOK, STATE REPRESENTATIVE

    Ms. Crook. Thank you, Mr. Chairman and Congressman Redmond. 
I really appreciate you coming and hearing from my 
constituents, from the people around the State of New Mexico.
    I'm state representative for the 64th District, which is 
primarily right here in Curry County. My brothers and I are 
from a family of third-generation farmers and ranchers, and I 
think these people, as exemplified, that have testified before 
you today, are the greatest lovers of our land. They love their 
land, and they want to protect their land.
    I serve on the Water Committee, and as Mr. Pattison stated 
today, you've heard some of the issues that we have heard and 
listened to in the water area. I truly appreciate the people 
that have given their testimony today. I think it's from the 
heart, and I think it's for the sake of their livelihood that 
they have told you their problems.
    I come from a family, like I said, and we came up in hard 
times, and they worked hard to protect their land. As you can 
tell from the looks of me, I have dealt with the prairie dogs 
on our land for as many years as I am old. We had prairie dog 
towns when I was a child; and, as those of you that are in the 
audience, you know what the prairie dog does. You know how much 
of the land they take to the detriment of the grazing.
    I--as again I said, I serve on the Water Committee. We 
heard the other day from testimony the many issues that we have 
in regard to water. One of the gentlemen testified that he was 
in Santa Fe and he saw a map, and it didn't have Tatum, it 
didn't have some of our eastern cities; and, we're concerned 
that with the water and the issues that the environment has 
with them, that this may become a reality.
    I do appreciate the time you've taken to come and hear from 
the people in our area, and I wish you would look at this 
article up close.
    Thank you again for your time.
    Mr. Pombo. I thank all of you for your testimony. I would 
like to recognize Congressman Redmond for any closing comments 
he may have.
    Mr. Redmond. First, I would like to thank Congressman 
Richard Pombo from California to be here to represent the House 
Committee on Resources and for receiving the testimony today. 
Richard, we appreciate it.
    I think representative government works best when 
representatives are out with the people as opposed to back in 
the beltway. Both you and I agree we would rather be out here 
than in the beltway.
    A couple--couple closing comments. No. 1 is, I think one of 
the things we need to realize about the environmental situation 
challenge that we have before us as Americans, there are some 
scenarios where we are in crisis, there are other scenarios 
where we're not yet in crisis but could be, and then there are 
other scenarios that we just need to maintain what we have and 
we'll never be in crisis. And we do not have to respond to each 
of those levels with the same amount of intensity.
    When we move toward trying to clean our air, clean our 
water, and protect the environment in terms of endangered 
species--and, of course, this is pretty much--this hearing is 
focused on the Endangered Species Act--is that we need to 
recognize that there needs to be flexibility to protect the 
endangered species.
    For instance, one person mentioned the minnows in the Rio 
Grande and how the water was let out of the reservoir in order 
to protect the minnow; but, yet, by the time the water got 
there, it was evaporated, for the most part.
    Well, to me it makes sense that the water is diverted for 
agricultural purposes and we use one of the seven fish 
hatcheries in the State of New Mexico to reproduce the minnow 
so that if it does die out in that area, we can restock it.
    That is going to be different from, you know, the 
reintroduction of the wolf or, you know, addressing the issue 
of the flycatcher. Every critter and addressing the need for 
every critter is going to be different. So, a cookie cutter, 
one-size-fits-all approach, which is overprotective, is not the 
way to do it, and so we need to be looking at flexibility and 
meeting the needs of each one of those--one of those species 
including the American farmer on the east side of the State of 
New Mexico. So, No. 1, we need to be looking at flexibility.
    The--the next thing that I would like to do is, I gave one 
of the panels an assignment, and I forgot to mention for the 
last panel, I would like for, you know, the last panel also, 
you know, Dr. Fowler, Mr. Eppers, of course, Bud, you were the 
most in terms of making recommendations, Mr. Pacheco, and Mr. 
Moore, I would like to hear, not only for myself, but also if 
you could communicate to the Committee, you know, when we go in 
and we get ready to overhaul the Endangered Species Act, and we 
want it to be fair for everyone, as well as the species, that--
that you participate.
    I mean, this is America and this is where we have a 
representative, participatory, you know, form of government. 
And if you don't participate, if you don't help write the law, 
somebody else is going to do it for you or to you. And that's 
why I want everybody that's on both of the Committees to get in 
writing to my office, how should we define endangered? How 
should we define ``threatened''?
    Because those are going to be critical in the 
implementation of any new policy that we have. And if you don't 
define them, somebody else is going to define them. So, I ask 
you to--you know, to, you know, bring those--those forward.
    I think it's very important that as we move forward in 
recovery--towards recovery with endangered species, since it 
was said, you know, many of the extreme environmentalists are 
right here in this room, there is nobody here that wants to see 
a species become extinct. There is nobody here that wants to 
poison the water. There is nobody here that wants our air to be 
dirty.
    But we just don't like the way that the government at this 
particular time is addressing the problem. Because this is 
America, we can come in and we can change the way that the--
that the challenge before us is addressed.
    And, so, you're now part of the solution as opposed to part 
of the problem. And, so, what I would like for you to do is, as 
you continue to think about this issue, there is three things 
that I want you to keep in mind, and I think all of them were 
stated here. If you have a pencil and piece of paper, you want 
to write these things down.
    That as we move toward saving the endangered species, No. 
1, that the policies absolutely must be science based. There is 
no substitute for accurate, certain knowledge concerning the 
species.
    No. 2, whatever policy is written, it must--and underline 
``must,'' capital letters, italics, exclamation mark--it must 
honor the right to private property.
    And, No. 3, that we need to have built into the saving of 
the endangered species an incentive to save the endangered 
species as opposed to have an incentive to be against the 
endangered species.
    So, as you draft your proposals and your suggestions for me 
as we go hopefully into the next Congress and we're going to--I 
would like to see--you know, of course, the chairman would know 
more than I do in terms of scheduling; but, you know, we need 
to address this as soon as possible, better sooner than later. 
But those three principles needs to be deeply ingrained.
    We need to have a policy that honors New Mexico culture. 
Mr. Pacheco very eloquently, you know, described that, that, 
you know, the cattle raising is in our blood for 400 years; 
and, we are just not going to put that aside.
    We've co-existed before the willow flycatcher. We want to 
continually co-exist in the future with the willow flycatcher. 
We just want to know how we're going to be able to do that.
    The--the last thing I want to say is that you're here 
today--and some of the people I've seen in other hearings and 
other meetings--don't give up. I want you to be continually 
proactive. You need to be proactive in this, in your proposals. 
Again, because if you're not proactive, then you're going to be 
reactive.
    So, in terms of being proactive, help us to define the 
parameters of the world and the policy in which you want to 
live, a policy environment that is good not only for the 
species but also good for the people who live on the land.
    So, again, Mr. Chairman, thank you very much for coming to 
New Mexico; and, according to House rules, you've got to close.
    Mr. Pombo. Well, I thank you very much. I can tell you that 
Congressman Redmond was very persistent in his requests that we 
do hold this hearing here. He originally mentioned to me 
several months ago the desire to hold a hearing on the 
Endangered Species Act in his district. He let me know some of 
the problems that had happened out here, some of the things 
that people had sent to him, letters and such about some of the 
problems that they had. And we tried extremely hard to 
accommodate that and to bring the Resources Committee out to 
the people.
    Many times there is--there is criticism when we do field 
hearings, and folks will say that we can do this in Washington. 
And I would argue that we could not receive this testimony in 
Washington, DC. Obviously, the majority of folks here could not 
afford to or probably don't have the desire to go to 
Washington, even if they could afford it.
    But it is extremely valuable to the Committee and I think 
to the process to have real people relating to their 
representatives what some of the real problems that they have 
are.
    There was a final paragraph in Mr. Pacheco's testimony that 
I would like to read because he didn't get to it.
    ``Perhaps it was best said by one of my elders in--in Cuba, 
New Mexico. `Pacheco, what are we to do? I have only 30 acres, 
a good house I built myself. My wife and I raised three 
children, sent them all through college. I always paid my 
taxes, owe no money to anyone. I have 30 cows, worked at the 
saw mill in summers, cut and sold dead wood in the winter. Now 
what? What does my country want me to do, become homeless, go 
to Albuquerque and be a burden on everyone else?' You have 
taken his culture and his pride.''
    I think it was because of that testimony right there that 
it is--that we point out why it's so important that we come out 
here, because this testimony cannot be delivered by a lobbyist 
in Washington or a lawyer in Washington. This has to be 
delivered by a real person out in the real world, and I 
appreciate all of you being here and--and the input that you've 
had into this.
    I thank the witnesses for their valuable testimony and the 
members for their questions. The members of the Committee may 
have some additional questions for the witnesses, and we will 
ask you to respond to those in writing. The hearing record will 
be held open for 10 days in case anyone would like to provide 
additional material for the record.
    You may send additional material to the Committee on 
Resources, U.S. House of Representatives, 1324 Longworth House 
Office Building, Washington, DC 20515.
    If there is no further business, the chairman again thanks 
the members of the Committee and/or witnesses, and this hearing 
is adjourned.
    Thank you very much.
    [Whereupon, the committee was adjourned.]
    [Additional material submitted for the record follows.]
   Statement of Hon. Walter Bradley, Lieutenant Governor, New Mexico

    Good morning Mr. Chairman and Congressman Redmond and 
welcome to New Mexico Mr. Chair. I also thank you for the 
opportunity to speak on behalf of the Executive Branch of the 
State of New Mexico.
    I will keep my testimony short and straight to the point.
    I have been Lt. Governor for New Mexico for three years and 
eleven months. As an ombudsman for New Mexico, I have been 
overwhelmed with the amount of constituent concerns I've 
received pertaining to the infringement and unbalance the 
Endangered Species Act has on private property rights, state 
sovereignty and states' waters.
    The purpose of this testimony is to provide the concerns 
the Executive Branch of New Mexico has with the Endangered 
Species Act. As you all are aware, New Mexico has been 
negatively impacted by the abuse and misuse of the ESA. For 
example, PILT revenues generated from the use of U.S. Forest 
Service resources have been dramatically reduced. I don't have 
to explain to this Committee the critical need for these 
revenues to local governments for infrastructure. Payments to 
counties have been affected by decisions related to the spotted 
owl. Recently, legislation was proposed to overcome this impact 
and stabilize payment to states. Mr. Chairman, rural New Mexico 
is being hit hard and hard working families who have lawfully 
been making a living off the land for generations are being 
devastated. It won't be too long before urban areas become 
aware and are affected by the ESA.
    As Lt. Governor, I have a responsibility to the taxpayers 
of New Mexico. These people are concerned with what is 
occurring in our state. Let me make it clear, I am not against 
preserving a clean environment. I like to have clean water to 
drink. I enjoy the scenery when I travel throughout the state. 
I want children who are our future to enjoy what I have 
enjoyed. However, I believe that there needs to be a balance in 
the ESA, and decisions must be based on ``best available'' 
scientific data, and not on questionable data, or no data as 
what appears to be happening today.
    As I stated earlier, private property rights, state 
sovereignty and water are major concerns to the New Mexico 
Executive Branch.
    As for private property rights, the ESA allows Federal 
Government or citizen litigants to take property owners to 
court without evidence that these actions will cause a 
``taking.''
    The current ESA has no provisions for takings. Language 
should be incorporated to allow property owners to enter into 
agreements with the Secretary of Interior identifying 
activities and any potential takings. Also, property owners 
should be compensated as required by the Fifth Amendment of the 
United States Constitution.
    The encroachment of state sovereignty is also a major 
concern. Under the current ESA, states are often excluded from 
the listing process even though within state's borders there 
may be T & E species. As for the development of recovery plans, 
states have no role. States should be recognized and allowed to 
participate in all plans or activities such as recovery plans.
    Water in western states and specifically in New Mexico is 
critical. Nowhere in the ESA does it acknowledge state law, 
regulation, rules, or any interstate compact covering the 
appropriation, use or diversion of waters. Presently in New 
Mexico, the Corps of Engineers and the Bureau of Reclamation 
are proposing an Environmental Impact Statement. The purpose of 
the EIS is to comply with the ESA for the Upper Rio Grande 
Basin and rivers. Mr. Chairman, New Mexico receives 
approximately 80 percent of its water from this area. New 
Mexico is currently seeking a ``Joint-Lead'' status as allowed 
under the National Environmental Policy Act. Because NEPA is 
being implemented and only because of this, an economic impact 
analysis is required as well as the impacts on the human 
environment. I would like the Resources Committee to know that 
New Mexico fully intends to become involved in this process. By 
becoming involved, the State will make sure that all data being 
analyzed will be sound.
    The question now is, what are some of the solutions to the 
concerns that have been identified?
    First of all, if any amendments to the ESA are going to 
take place, all states must be an integral player. It is our 
belief that states are more aware and knowledgeable of how to 
manage resources, species and habitat. The ESA should not act 
as a tool for zoning and land use.
    Second, state water laws, compacts, diversions and 
appropriations are being ignored. Language must be incorporated 
into the ESA acknowledging states requirements and sovereignty 
regarding water.
    Mr. Chair, members of the Committee, New Mexico met with 
these Federal entities on October 16, 1998. An article was 
brought to their attention that came out on the Albuquerque 
Journal a couple of weeks ago. The title of the article is 
``Forum May Not Stop River--Compact Suits.'' In the article, 
Forest Guardians Executive Director John Talberth states, 
``based on what I've heard today, there are certain aspects of 
litigation I think we should go forward with more quickly.'' 
The Federal response to this article at the meeting was that 
they had resolved all issues with the Forest Guardians.
    Mr. Chairman, members of the Committee, New Mexico has been 
there and seen it. The Federal agencies meet with the 
environmental organization, cut deals and then go out and do 
Environmental Impact Statements. As a result, the human 
environment is significantly impacted as well as the economy at 
the state and local level.
    Environmental extremists, Mr. Chairman, are actually 
targeting operations of Federal dams, irrigation works and a 
lot more in western states. And as I stated earlier, only 
because NEPA is being implemented will an economic impact 
analysis be conducted as well as an analysis on the human 
environment. The ESA should include provisions in addressing 
and analyzing the human environment and economic impacts. 
However, another provision should be added stating that 
decisions made should minimize the human environment and 
economy.
    The ESA must acknowledge states sovereignty, responsibility 
and obligation on water laws, rights, and compacts. I believe 
that an impact analysis on the economy and human environment 
should be required under the ESA. We have got to find a balance 
between protecting species, habitat, our economy and most 
importantly human beings.
    Thank you again Mr. Chairman, members of the Committee to 
allow the Executive Branch of New Mexico address their 
concerns.
                                ------                                


         Statement of Karen Budd Falen, Esq., Cheyenne, Wyoming

    My name is Karen Budd Falen. I am both a rancher and an 
attorney who represents private property owners, ranchers and 
local governments. Today, I am testifying on behalf of the New 
Mexico Cattle Growers Association.
    The New Mexico Cattle Growers Association (``NMCGA'') is a 
nonprofit association with approximately 1700 members, 
including those who either own their ranch in fee simple and 
those who graze livestock on federally managed (Bureau of Land 
Management [``BLM''] or United States Forest Service) lands. 
The vast majority of ranchers who graze their livestock on the 
BLM or National Forest lands are physically and economically 
dependent upon the use of those Federal lands for their 
livelihoods. In many cases, these ranches consist of a small 
amount of deeded property surrounded by vast tracts of BLM or 
National Forest lands. Those federally managed lands are often 
encumbered with private water rights, private improvements and 
county roads and access rights. These small amounts of private 
property, the private rights on the Federal lands and the 
Federal land grazing allotments themselves constitute the 
ranch. The deeded property of the typical ranch is insufficient 
to support the ranchers' herds for an extended period of time. 
Thus, if a rancher cannot access his BLM or National Forest 
grazing allotment or his private rights located on that 
allotment, he must either lease other pasture (if any is even 
available), purchase alternate forage such as hay (which is 
extremely expensive), or sell his herd. Any of these options, 
even for a single grazing season, can force a ranch into 
bankruptcy. The longer access to allotments and private 
property within those allotments is denied, the more severe the 
consequences to each individual rancher and to the rural 
community dependent upon the multiple use and sustained yield 
of the National Forest and BLM managed lands.
    In specific response to your question, the Endangered 
Species Act (``ESA'') has had a dramatic and detrimental affect 
on rural communities and industries in New Mexico. The ESA 
seems to be the ligation tool of choice for environmentalists. 
For example, between 1993 and 1998, 75 separate cases were 
filed in the Federal District Court for the District of Arizona 
alone. Of those 75 cases, 67 were filed by environmental 
groups. All of those cases specifically concerned ``alleged 
violations'' of the Endangered Species Act. As a result of that 
litigation the United States Government often voluntarily 
through stipulated settlements paid approximately $5,329,659.60 
in attorneys fees and costs to the environmental groups.
    In response to this litigation, rural ranchers, counties 
and private property owners have to fight back with litigation 
and Congressional action of their own. However, in the same 
time frame described above, representatives of the rural and 
ranching community have only filed five cases; only one of 
those cases ended with the payment of approximately $7,000 to 
the rural and ranching representatives.
    As a result of this litigation, one of the biggest costs to 
the ranchers and rural communities is their costs of 
participation in the litigation filed by the environ-

mental groups. In most cases, the Federal Government will not, 
and in fact cannot, adequately represent the property rights 
and interests of the rural communities and private property 
owners when sued by the environmentalists. This is particularly 
true when environmental groups request the removal of livestock 
through a preliminary or permanent injunction. For example, in 
the ``Tucson settlement,'' (the settlement agreement among the 
Southwest Center for Biological Diversity, Forest Guardians and 
the Forest Service in the case entitled Southwest Center for 
Biological Diversity and Forest Guardians v. Forest Service, 
civ. Nos. 97-666 and 97-2562), the livestock industry 
intervened. Even though a settlement agreement was reached, 
despite the Court's refusal to sign a stipulated settlement 
based upon the objections of the NMCGA and Arizona Cattle 
Growers Association, the livestock industry was allowed to 
participate. Although at least in the Tucson case, the 
industries' intervention may not have altered the initial 
outcome, attempted intervention is better than watching the 
disruption and destruction of an industry, culture, local 
economy and way of life.
    Although it is my position that the ESA needs reform, 
frankly the biggest problem with the ESA is the Federal 
Government's refusal to follow the mandates of the Act. Let me 
give you some examples:

1. Gila and Apache Sitgreaves National Forests Permittees

    One of the biggest problems facing ranchers on Federal 
lands is the Forest Service's and BLM's refusal to involve 
grazing permitters and lessees as applicants in the Section 7 
consultation process under the ESA. In many cases, it is clear 
that the BLM and Forest Service would rather ``cut a deal'' 
with the Fish and Wildlife Service (``FWS'') to ensure a no 
jeopardy opinion, than include the grazing permittees in the 
consultation process. My assumption is that by excluding the 
permittees, the FWS and the consulting Federal agency believe 
that they can insulate both agencies from having to justify 
their decisions ``on the record'' with good data.
    The failure to provide the grazing permittees with 
applicant status is a particular problem in the Gila National 
Forest in New Mexico and the Apache Sitgreaves National Forests 
in Arizona. Prior to 1995, the Forest Service held the position 
that the reissuance of regularly-expiring livestock grazing ten 
year term permits did not require analysis pursuant to the 
National Environmental Policy Act (NEPA). 42 U.S.C. Sec. Sec.  
4321, et seq. However, without the benefit of rulemaking or 
other formal decision making process, in 1995, the Forest 
Service changed its policy to one that mandates that term 
grazing permit reissuance be allowed only upon the completion 
of NEPA analysis.
    In 1995, the ten year term livestock grazing permits for 
six permittees on the Gila and 13 permittees covering 20 
grazing allotments on the Apache-Sitgreaves (A-S) National 
Forests were set to expire. Pursuant to the new agency policy, 
the Forest Service completed its alleged NEPA and section 7 
consultation process and reissued the permits. The problem is 
that none of the new permits were reissued with the same terms 
and conditions as the expiring permits; rather every permit 
which was evaluated received a direct reduction in livestock 
grazing of between 40 percent and 85 percent as well as an 
indirect reduction in livestock grazing mandated by a new terms 
and conditions with which the permittees will never be able to 
comply. These severe reductions in permitted grazing numbers 
and seasons of use, and the host of new terms and conditions 
will severely impact the economic viability of the permittees' 
ranches in Arizona and New Mexico. The majority of these 
reductions were based upon the DRAFT Mexican spotted owl and 
goshawk utilization guidelines issued by the Forest Service 
following consultation with the FWS. The permittees were not 
involved in the implementation of these draft guidelines on 
their individual grazing permits. Although many of the 
permittees wrote to the Forest Service requesting ``applicant'' 
status and specific involvement in the ESA section 7 
consultation process, the Forest Service declined that request, 
stating that the permittees could only comment on the 
biological evaluation to the FWS. The permittees were NOT 
involved in any of the informal discussions or preparation of 
the biological evaluation or biological opinion. The permittees 
were simply told that they were bound by the outcome of the 
process.
    Under the ESA, when a Federal agency proposes actions that 
might impact wildlife, fish, or plant species listed as 
threatened or endangered under the ESA, the agency must consult 
with the FWS. The agency proposing the action (the action 
agency) must consult with the FWS to ensure that the action 
does not jeopardize the continued existence of threatened or 
endangered species, or result in the adverse modification of 
critical habitat. When a proposed Federal action involves a 
third party who is an applicant for a permit or the holder of a 
permit issued by the action agency, the action agency must 
cooperate with and assist the third party in the ESA 
consultation process. 16 U.S.C. Sec.  1536(a)(3) and 50 C.F.R. 
Part 402. By administrative law judge decision, this includes 
Federal land grazing permittees or lessees.
    Under the regulations, to facilitate the ESA consultation 
process, the action agency and the third party applicant are to 
prepare a ``biological assessment'' or ``biological 
evaluation'' (hereinafter referred to generally as a 
``biological assessment'') that identifies the proposed action 
and any threatened or endangered species in the project area. 
16 U.S.C. Sec.  1536(c)(1). Based upon the biological 
assessment, the action agency and the applicant determine 
whether the proposed action is likely to adversely affect a 
listed species or its designated critical habitat. 50 C.F.R. 
Sec.  402. The action agency and applicant then submit the 
biological evaluation to the FWS. The FWS reviews the 
biological evaluation and issues one of two documents: (1) a 
``concurrence statement'' whereby the FWS concurs with the 
action agency's finding that the proposed action is not likely 
to adversely affect listed species or their critical habitat 
(known as a No-Jeopardy Opinion), or (2) a formal Biological 
Opinion whereby the FWS fully analyzes the proposed action and 
its possible impact on listed species or their critical 
habitat.
    During the NEPA grazing analyses, the Gila and Apache-
Sitgreaves National Forests engaged in the ESA Section 7 
consultation process with the FWS. The FWS and Forest Service 
reviewed the proposed grazing reductions, and the FWS issued 
``No Jeopardy'' Biological Opinions concurring with the Forest 
Service's findings that proposed actions would not likely 
adversely affect listed species and/or their critical habitat. 
However, the FWS ``No Jeopardy'' opinions or concurrent 
statements were conditioned on compliance with particular 
mitigation conditions. These mitigation conditions included 
requirements such as fence construction, exclusion of livestock 
from certain parts of allotments, restrictions on placement of 
mineral supplements, and forage utilization standards. The 
burden to comply with and undertake these mitigation measures 
falls directly upon the ranching industry. Despite their 
obvious role in the Forest Service's proposed grazing actions 
and the burden imposed by the mitigation measures, the affected 
permitters (applicants) were not informed of the ESA 
consultation process, nor did the Federal Government involve or 
seek the participation of the ranchers in the consultation 
process. By failing to involve the Plaintiffs in the 
consultation process, the Defendants and Gila and Apache-
Sitgreaves National Forests violated the ESA and agency 
regulations.
    In addition to the affects that these reductions have on 
the individual ranchers, local governments and communities are 
also adversely effected by these grazing reductions. At a 
hearing in Las Cruces, New Mexico earlier this year, Cathy 
Cosgrove, an economist and range scientist, testified that the 
specific reductions proposed by the Forest Service in this case 
had ``significant impacts'' on the local economy. In fact, her 
office conducted a study and found that 60 percent of the money 
that local ranchers spent went toward the cost of maintaining 
their operations, such as the cost of labor, the cost of 
fencing, the cost of water troughs, etc. Increasing those costs 
by forcing ranchers to complete additional fence maintenance or 
forcing them to develop additional water sources because their 
livestock can no longer access stream banks substantially cuts 
into an already slim profit margin. Additionally, the study 
determined that for the three county economic area, the 
reductions in the case resulted in a $10 million economic loss. 
That loss included a loss of local jobs, as well as a direct 
loss to the local economy in terms of the available funds local 
ranchers have to spend for medical care, food and supplies. 
Again, this is a direct impact because of a reduction in 
grazing between 40 percent and 85 percent for 19 ranchers on 
the Arizona and New Mexico border because of alleged ESA 
concerns.
    Although environmentalists may argue that these losses are 
acceptable to protect endangered species, the record in this 
case shows that livestock grazing these allotments has not had 
an adverse effect on any threatened or endangered species in 
this area. In fact the environmental assessments which propose 
these reductions affirmatively state that livestock grazing has 
not had an adverse impact on any threatened or endangered 
species or their habitats. Thus, these ranchers and their local 
communities are suffering economic and lifestyle losses without 
any corresponding benefits to species allegedly protected under 
the ESA. See Exhibit 1.

2. The ``Tucson Settlement'' and Subsequent Litigation

    In addition to the loss of grazing permits, the ESA can 
also result in the loss of private property, private property 
rights and access to private property. This Committee has 
already held hearings discussing the Forest Service, Forest 
Guardians and Southwest Center for Biological Diversity 
settlement agreement in the case of Forest Guardians and 
Southwest Center for Biological Diversity v. Forest Service, 
civil numbers 97-666/97-2562.
    As a result of that settlement, the Forest Service has 
issued decisions eliminating livestock use in riparian areas 
and water sources in 13 separate allotments in Ari-

zona and New Mexico. The grazing permitters, either 
individually or through counsel, appealed each of those 
decisions through the Forest Service administrative appeals 
process. Although in each case, the permittees requested a stay 
of the implementation of those decisions pending a decision on 
the merits of the permittees' appeals, the Forest Service 
refused to stay any of the decisions. As a result of those 
decisions, access to private property has been denied, access 
to private stock water rights which are recognized as private 
property has been denied and the use of county roads has been 
denied to the affected ranchers. As a result of this direct 
taking of private property, some of the individual permittees 
have filed suit in the Federal District Court for the District 
of New Mexico requesting that the decisions be set aside.

3. Recommendations for Reform of the ESA

A. Listing Decisions Must Be Based Upon Scientific Data

    Under present court interpretations of the ESA, species can 
be listed as threatened or endangered without any current 
scientific study or data. In its present state, all the ESA 
requires is a ``literature search'' to determine if there were 
greater numbers of a species in the past than are presently 
known. The FWS does not even have to have current population 
data to list a species. Thus, species can be listed based on 
estimates and a literature search, no science is involved.
    Additionally concerning is that species can also be listed 
based upon an opinion that the habitat for the species is 
shrinking, regardless of whether the population numbers are in 
decline. Thus, a literature search can produce an opinion that 
the estimated habitat size is smaller now than ``in the past,'' 
and a species can be listed, again no science is involved. 
Although the ranching and rural community does not oppose the 
protection of truly threatened or endangered species, it is 
imperative that listing decisions be based upon actual science 
and monitoring data. If the ``best scientific and commercial 
data available'' is none, the FWS must gather the necessary 
data to list, rather than listing species based upon estimates 
and guesses.

B. Constitutional Principles Must Be Followed

    The Fifth Amendment to the U.S. Constitution provides that 
private property shall not be taken for public use without due 
process and just compensation. Note that the Founding Fathers 
did not say that the public or the Federal Government could not 
take private property, just that private property could not be 
taken without due process and just compensation. The 
implementation of the ESA has not followed these mandates. For 
example, although the Tucson settlement and the decisions 
implementing it deny private property owners the right to use 
and access private property (let alone Federal grazing 
permits), not a single private property owner has been 
compensated and no hearings or other due process procedures 
have been conducted. The courts have held that protection of 
threatened or endangered species is an important public 
purpose. Thus, the Fifth Amendment mandates that those private 
property owners bearing this public cost must be compensated.

C. Applicant Status Must be Strengthened

    As stated in the section on the section 7 consultation 
process, private property owners, as well as Federal land 
grazing permittees and lessees have the right to participate in 
the decision process. As described by one court, if the action 
agency will not act as an advocate for the applicant in the 
consultation process, the agency should ``get out of the way'' 
and allow direct consultation between the affected individual 
and the FWS. While this mandate sounds strong, it is rarely 
followed by either the Forest Service or the BLM. For example, 
in the Gila and Apache-Sitgreaves permittees case, the Forest 
Service biological evaluation proposed fencing, grazing 
reductions and utilization standards, without ever contacting 
the affected permittees. Thus, the proposed action itself 
resulted with the 40 percent to 85 percent reductions in 
livestock use, even before the FWS prepared its biological 
opinion. The permittees were never given any chance to review 
or oppose these reductions before they were presented to the 
FWS. As a consequence, the FWS issued no jeopardy opinions, 
accepting the proposed actions of the Forest Service. The 
Forest Service then issued final decisions to the permittees 
which, by law, had to be in compliance with the FWS biological 
opinions. Therefore, even though the process allowed for full 
permittee participation, in reality, the grazing permittees 
were never consulted nor included in the process. Certainly 
those directly affected by the section 7 consultation should be 
allowed to participate in that process. Any ESA revisions must 
strengthen that right of participation.
    On behalf of the NMCGA, I sincerely appreciate the 
opportunity to present this evidence to you. Should you have 
any questions, please do not hesitate to contact me.

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  Statement of Bud Eppers, President, New Mexico Public Lands Council

    The New Mexico Public Lands Council respectively 
appreciates the Committee on Resources holding a Hearing in the 
West, in New Mexico and providing an opportunity for directly 
impacted individuals and communities the opportunity to 
testify. We represent more than 4,500 Federal public lands and 
New Mexico State Trust land permittee's and leasee's who have 
livestock production operations throughout New Mexico.
    We graze year long on intermingled Private, State and 
Federal land. Over 90 percent of all range improvements which 
includes fencing of exterior boundaries, interior pasture 
fences which serve our management needs for livestock water 
development, storage and distribution systems for proper 
utilization of forage. Nearly all of our members range from 
extremely small to large family owned and managed operations. 
They have been and remain the pillars to numerous small rural 
communities, school systems and support business.
    Preparing this testimony before this Committee necessitates 
review of the effectiveness of the Endangered Species Act (ESA) 
since it was adopted and signed into law in 1972. The 
endangered ``Snail Darter'' delayed and tremendously increased 
construction costs for the Teleco Dam and ultimate electricity 
and water consumers. Endangered and threatened wildlife species 
more than doubled the costs of the Transalaska Pipeline. The 
Spotted Owl virtually halted timber harvesting in the 
Northwestern part of the United States while the Mexican 
Spotted Owl did the same for the Southwest.
    The Desert Tortoise significantly increased the cost of 
gold mining and livestock grazing in California, Nevada, Utah 
and Arizona. One situation I am personally familiar with was 
the request for a mining permit to extract gold from the hilly 
terrain along the Nevada and California border. As a condition 
for the granting of the permit by the Bureau of Land 
Management, Home stake Mine Company was required to purchase 
private land and fund a Desert Tortoise Research Center before 
their permit was approved.
    Another situation was that home developers adjacent to Las 
Vegas were required to fund a project to seek and physically 
remove Tortoises from a 1,500 acre site. During this exercise 
approximately 870 turtles were removed at a cost in excess of 
$40,000 per turtle. Many of these were transported to the New 
Research Center. Historical livestock grazing use has been 
modified or curtailed to the extent that many ranchers can no 
longer afford to stay in business.
    The Southwester Willow Fly Catcher, not listed by the U.S. 
Fish and Wildlife Service, but afforded protection by a Federal 
Judge, threatens historical water and grazing rights throughout 
the Southwest. Cattle grazing is being eliminated by fencing in 
riparian areas on Forest lands. BLM is quickly developing 
similar management practices on the public lands. Riparian 
lands are critical to breeding livestock because they begin 
growing early in the season and stay green late into the 
summer. These areas are vital to conditioning cattle for 
breeding and early reproduction cycles. They are also necessary 
during extended periods of drought.
    The list goes on and on and in every case there is not one 
shred of peer reviewed scientific documentation supporting a 
listing and protection. In the case of the Southwestern Willow 
Fly Catcher (SWFC) a documented study funded by the Phelps 
Dodge Corporation found that the largest population, in 
possibly the United States, exists in an area where intensive 
cattle grazing occurs on private irrigated farm land.
    Research in this area has been ongoing for several years 
and each year increasing numbers are identified. The Fish and 
Wildlife Service (F&WL) recently told a staff person of 
Congressman Joe Skeen's that there were only 400 pairs of SWFC 
left in the entire world and 200 of these were in the Gila 
River area. How in the world can F&WL back up a statement like 
this? Have they traveled the world to listen for a SWFC? Cattle 
are falsely blamed for SWFC population problems, where to my 
knowledge, not any peer reviewed scientific documentation 
exists.
    It is my understanding the only way you can identify a SWFC 
is to listen to its voice, as it is very difficul to see them. 
I am told the experts can tell the difference in the male and 
female but how do you count them by listening to the voice? 
There is a lizard in my area of New Mexico that is supposed to 
be endangered. The only way you can count them is to plant a 
bucket in the sand hoping they will fall in. When you retrieve 
the lizard, out of the bucket, you have to count the strips on 
its belly to tell if this is the endangered one. To count the 
fish, that are supposed to be endangered, the people that are 
experts either wade into the river or go by boat, go to a pool 
and pick the fish up by a net. It is my understanding many fish 
die by this method. How do they know that there are not 
hundreds of the endangered fish in the mud or down or up the 
river in the many pools.
    At this time the F&WL Service is asking the Bureau of 
Reclamation to let out more water on the Pecos river to save 
two endangered fish. Downstream the farmers will suffer because 
of the fish and the Pecos River Compact to Texas, as so much 
water belongs to Texas. Because of this there will not be any 
irrigation water when the farmer needs it. The fish were 
protected but the small communities are not. There will not be 
the crops to sell in the fall. The farmer does not have any 
money to buy goods therefore the business's will suffer, just 
as the Owl closed many communities in the Northwest this will 
happen in New Mexico or other States.
    A frog will only come out if there is a large rain. Where 
do they live in the drought years? In the mud, and if you have 
ever heard a frog ``sing'' after a rain you will know they are 
not endangered. Neither are many of the animals that are 
listed. There is no proof, yet every day something else is on 
the list to study. Is this a way to keep an agency funded? The 
plant, loco weed, will live in the ground for 100 years and 
only if the conditions are right will blossom and grow. This is 
scientifically documented. These two examples are not listed as 
endangered or threatened but I wanted to show how nature 
protects an animal or plant. How many listed endangered or 
threatened species are the same.
    There are numerous other species that are or have caused 
extremely serious consequences on land uses or development 
opportunities. As new species are identified and listed the 
growing problems will surely increase and prevent all economic 
activity from continuing to support our rural communities and 
school systems. Catron Courty New Mexico is a prime example of 
the effects of endangered species management. They are one of 
the largest Counties in New Mexico but with the smallest 
population. Due to their vast area, 4,414,720 acres, rural 
communities are heavily dependent upon the economic activity 
generated by timber, mining, livestock production and 
recreation. Timber harvesting has for the most part ceased in 
this County. The mills have closed and labor associated with 
this industry has had to retrain or move to other locations.
    Catron County had 3 schools for the education of their 
children but today only one continues and it is faced with 
growing difficulties and declining attendance. If this school 
is forced to close it is a great distance to have to transport 
children to other locations.
    I would like to offer several recommendation for 
consideration by the Committee as your consider reforming the 
ESA. First, since the ESA can not claim victory in restoring or 
preventing a single species from becoming extinct it should be 
repealed in its entirety.
    The Committee should seriously consider whether the Federal 
Government should play a role in endangered species or let the 
States address identification, listing, habitat requirements or 
reintroduction. With the exception of just a very few species, 
States have management responsibilities for wildlife within 
their borders. Even in migratory species the States could do a 
better job in management than the Federal Government and at a 
much lower costs.
    1. Congress should establish a blue ribbon Committee of 
range, timber and wildlife professionals from Land Grant 
Universities. They should be charged with reviewing any and all 
available data on the current status of each species under 
Federal agency management. They should request and review all 
management techniques used to protect and restore species 
populations. They should report back to Congress with a 
progress report on each species with any recommendations for 
management changes to expedite recovery or withdraw the species 
from protection.
    2. Federal agencies should only be given management 
responsibilities for migratory species. Species that can walk 
or crawl across State boundaries should not be managed by other 
that State agencies in cooperation with the neighboring State.
    3. Listing of a threatened or endangered species should 
only occur after substantial verifiable and peer reviewed 
evidence exists. Land Grant University Scientist should concur 
unanimously.
    4. Citizen suits should be prohibited. One of the worst 
travesties of the ESA is the ability of the environmental 
groups to bring before a favorable Judge request for a listing, 
critical habitat designations and management restrictions. The 
Judiciary is not the proper setting for addressing the 
endangered species issue.
    5. Conditions for listing should include mitigation of the 
impacts on rural, communities, economies, historic land uses 
and managed production on Private, State Trust and Federal 
lands. Executive Order 12630 should be enacted into law with 
the Justice Department Implementation Guideline serving as the 
Regulations for compliance.
    6. A possible funding source for Federal listed species 
could be a voluntary contribution provided for on the 
individual income tax forms.
    I appreciate and thank the Committee on Resources for 
coming to New Mexico to hold hearings on such an important 
issue. This completes my statement and I would be happy to 
stand for question.

                Addendum to the statement by Bud Eppers

    Once again I thank Representatives Richard Pombo, Bill 
Redmond and Committee Chairman Don Young for holding a hearing 
in areas affected by the Endangered Species Act (ESA). Most of 
the testimony presented and statements vocally given were by 
individuals who could not afford to travel to Washington, D.C.
    Representative Pombo asked me if I believed that there 
should not be an ESA? My prepared testimony indicated that I 
did not believe the Federal Government should be managing or 
involved with any other than migratory species. The States 
should have the responsibility to protect and manage threatened 
or endangered species within their borders. The Federal 
Government, in my opinion, has usurped the authority of the 
States and violated the Constitution of the United States.
    The Federal agencies have a dismal record of success in 
managing endangered species. The only thing that they can take 
credit for is severely reducing or completely eliminating 
responsible management of our renewable and non-renewable 
resources. Also, creating shortages of oil, gas, timber, metals 
and a rapidly reducing livestock grazing industry.
    Their actions have drastically increased the costs of 
production to the point that we can import oil, metals, lumber, 
beef, lamb and wool cheaper than we produce it here. This is a 
situation this nation will suffer from as we become subservient 
to other governments for our material needs.
    No, I do not believe the Federal Agencies should be in the 
endangered species business. They have failed miserably in 
demonstrating their ability to do so.
    Congressman Redmond raised the issue and Dr. John Fowler 
addressed it some in his testimony on an incentive based 
recovery, production or habitat management program. I firmly 
believe that the Congress should seriously consider this 
possibility. When one evaluates the hundreds of millions of 
dollars that has been spent to date with little to no effect, 
new innovative ideas should be explored. In the case of the 
$40,000 plus costs per Desert Tortoise, I would wager that 
private landowners could restore the population to historical 
high numbers and if on a bid bases it could be done for much 
less. Why not try it, nothing else seems to be working.
    Defining ``threatened'' or ``endangered'' warrants 
familiarizing ones self with threatened or endangered from 
what? I have lived on the same land as my family has since 
1926. I have had the opportunity to witness numerous changes 
during my tenure for the past 60 years. It is my strong opinion 
that weather, disease and predators have had more detrimental 
impacts on all species than has mankind.
    We have witnessed on several different periods in time the 
increase and decrease in jack rabbits, cotton tails, skunks, 
coyotes, fox, antelope, deer, quail, dove, hawks, bobcats, 
snakes, catfish, perch, rats, and mice populations. Jack 
rabbits, cotton tails and skunks have been impacted more by 
disease that either drought or predators. Bubonic plague and 
rabies are the most common diseases responsible. Keep in mind 
that we have had a predator management program on our ranches 
all of my life.
    Quail, dove and hawks are very susceptible to long periods 
of inclement weather. Several days of 25 to 35 degree 
temperatures and persistent drizzle will kill all bird species 
in this area. During this past winter after up to 3 feet of 
snow covered the land for nearly 3 weeks we found hundreds of 
dead birds. Previous population numbers have not returned yet, 
but they will with time.
    Deer and antelope have been mostly affected by extended 
periods of drought but stomach worms have caused large numbers 
to weaken and die during excellent range conditions. Predators 
such as coyotes and mountain lions play a large roll in 
reducing numbers of both antelope and deer. However, losses are 
held to a minimum when continuous predator management is 
conducted.
    Changing weather patterns have and are effecting varieties 
of fish. Livestock ponds and tanks for many years contained 
several fish species but due to nearly 20 years of less intense 
rainfall, runoff seldom occurs and consequently these ponds and 
tanks have dried up and no longer provide habitat for fish. If 
it were not for water stored above dams and slowly released 
throughout the year fewer fish would be alive such as the Blunt 
Nose Shiner, Pecos Pupfish, Pecos Gambusia and others.
    Species populations vary greatly over time. When I have 
witnessed very, very low numbers of some species, over time 
they continue to regenerate into thriving populations. Based on 
my personal observations over time any species identified and 
considered for listing as either threatened or endangered 
should not be listed until:

        1. Data has been collected over a minimum of 15 years by 
        monitoring annually species populations, habitat conditions, 
        climatic conditions, disease problems and predation.
        2. Monitoring should be on the same location with all 
        measurements being documented to the extent that can be 
        repeated.
        3. Data collected is distributed to qualified professional 
        within the Land Grant Universities for peer review.
        4. Any assumptions or recommendations should be distributed to 
        the same qualified professionals for peer review.
    Based on the monitoring data and documentation the following is my 
suggestion for a definition for threatened or endangered species.

        Threatened species are species whose population continuously 
        declines over the monitoring period to a level at least 50 
        percent below the population count at the beginning of the 
        monitoring period.
        Endangered Species are species whose populations continuously 
        declines over the monitoring period to a level at least 80 
        percent below the populations count at the beginning of the 
        monitoring period.
    Thank you for allowing me to include this addendum before the 
record is closed. If I can answer any questions or provide additional 
explanation please contact me.
                                 ______
                                 

      Statement of Manuel Pacheco, Northern New Mexico Stockmen's 
                     Association, Taos, New Mexico

    Good morning I am Manuel R. ``Rudy'' Pacheco, a rancher and 
resident of Taos in the North Central part of New Mexico. My 
wife, Angelica Maria Martinez de Pacheco and I raised five 
children, two girls and three boys, all higher education 
graduates and now professional people. We have seven 
grandchildren.
    To fully understand my remarks, I must explain my roots and 
part of my background.
    We are descendants on my fathers side from the Pacheco's 
who mapped and surveyed most of northern Spanish America. Entry 
into New Spain, Territory of New Mexico by the Pachecos was in 
1598. Best historically known was Bernardo de Miera y Pacheco 
who traveled with Father Escalante. On my mother's side direct 
descendants of Nicolas Ortiz I, Nino Ladron de Guevara, who 
came to Santa Fe with Diego De Vargas in 1693. Both families 
were members of several land grants. My wife is a direct 
descendant of Antonio Martinez the original grantee of the 
Antonio Martinez y Lucero de Godoi, land grant in Taos county. 
Historical records show that our families were ranching in New 
Mexico in the early 1700's. We still run a small operations, 
one in Taos, the other in Ortiz, Colorado.
    Besides ranching I have worked in several varied businesses 
since the age of 16. After attending college, I became a public 
high school teacher and later a central office district 
administrator. After 33 years of service I retired in 1987, but 
then did consulting work for the New Mexico Department of 
Education. AID, through departments of UNM and LSU 
universities. I did some organizing work and consulting for 
some organizations and attorneys. I have been a taxpayer for 
over 50 years. I served my country in the U.S. Naval Forces as 
a medical corpsman in my youth. I've belonged to many civic and 
social organizations. Service included the National Public 
Lands Council under Secretary of Interior, Manuel Lujan Jr. and 
President George Bush. I currently serve as a board member of 
the Northern New Mexico Stockman. P.A.J.E. corporation a New 
Mexico wide agricultural business related organization. I am 
Vice-President of El Llano Ditch company in the county of 
Conejos Colorado.
    The Endangered Species Act, although well intended, to save 
species, has been a total failure. According to the National 
Wildlife Federation, in 25 years with billions of dollars 
spent, one thousand one hundred and nineteen (1,119) species 
listed as endangered or threatened; six species were delisted 
and six have become extinct. The Mexican Wolf reintroduction in 
the Arizona, New Mexico border, has left no survivors, but 
spent millions. The Southwestern Willow Flycatcher, probably 
the only scientific study with qualified biologists using 
established U.S. Fish and Wildlife Service protocol was done on 
the U Bar cow Ranch in southwestern New Mexico along the Gila 
River, as reported in the September issue of the Coalition 
Quivira, a survey of the bird inhabiting the U Bar Ranch was 
undertaken in May through July 1994, showing a high population 
of 64 pairs. It should be noted that the second largest 
population in 1997 was located on the Keru River in California 
with 38 pairs. Since 1994 surveys conducted yearly at U-Bar 
Ranch showed that there was 107 pairs in 1995, 138 pairs in 
1996, 174 pairs in 1997 and 186 pairs in 1998, all in cow 
country. The next highest population is 38 pairs where there is 
no livestock. Another significantly different from what some 
established literature has been suggesting, the placement of 
nests are high and some exceed 70 feet above ground, and the 
vegetation of preference significantly different. Why then 
fence thousands of miles of river and insist that a birds 
habitat is, when no science has been done to substantiate the 
claims? In the Carson National Forest, a million dollars was 
spent trying to locate Mexican Spotted Owls, according to 
staff. They found one in the furthest boundary of the Jicarilla 
reservation. What a waste of money. Imagine what could be 
accomplished if that money was spent in resource improvement.
    It must be said that among scientists and biologists there 
is differences as to approaches on saving species. We can say 
that by improving habitats, we, the Northern New Mexico 
Stockman are saving species and improving range. Historically, 
in our four centuries of living in these lands we protected the 
environment we did that because that is how we survived.
    The Northern New Mexico Stockman, the conservation Fund, 
the Forest Service and the Extension Service are working 
together on the Valle Grande Grass Bank atop Glorieta Mesa. The 
Quivera Coalition is demonstrating that there are benefits in 
reasonable people working together for a common good. Preserve 
open space, improve habitat and species survive.
    There are those that do not subscribe to common sense 
solutions, but will take radical actions like those that 
happened in Vail, Colorado recently. Others take to the courts 
actions that are easy to initiate and do not need scientific 
validation to set in motion. Federal Agencies, either because 
they are spending most of their time and energy responding to 
lawsuits, have become non-productive and roll-over on 
settlements with extremist groups. The new Santa Fe Ring, the 
Guardians of the Forests, have found there is easy money, and 
time spent intimidating Federal agencies with no science in 
their lawsuits. The fact is, phony environmentalism is a money 
making enterprise. What a sweet deal, government grants, tax 
exempt status, private grants from tax exempt organizations, 
government paying their court costs and legal fees, they don't 
pay when they lose a lawsuit. I asked the regional forester why 
is it you don't collect from groups that lose when you win a 
lawsuit. The answer, the justice department does not wish to do 
so. We the dumb taxpayers pay for everything, the justice 
department attorneys and staff, our attomey's, the court costs, 
and the radicals legal costs.
    The affects of the misuse of the Endangered Species Act and 
now also happening in the Clean Water Act is deep and very 
harmful. In counties where unemployment range from 10 through 
20 percent, some of the poorest in the Nation, there has not 
been one member in our 2500 plus organization that has not been 
affected. Our businesses are labor intensive, there are low 
markets, and profit making is almost impossible. We risk 
everything! What do the radicals risk, nothing! Its not right. 
We have for 225 years under Spain, 25 years under Mexico, and 
now 150 years under the United States have been productive and 
proud people. The Act has become a tool to deny private 
property and water rights. Never in our history has there been 
such an assault on our rights. We have a right to make a 
living, but without scientific evidence owls, birds, minnows, 
salamanders, other animals and plants are being used to 
prohibit us to live off our lands. Just think, before the idea 
of a country of the United States and long before a nation of 
Mexico, we were here harvesting a living.
    Since 1848 when the Treaty of Guadalupe Hidalgo was signed, 
which was confirmed by Congress of the United States, affirmed 
in the Keary Code, and became part of the Constitution of New 
Mexico in section 5 of Article 2. We have been taken by fraud, 
denied some rights, this happening in the country where we were 
born, raised, educated and have made a living and some have 
died for. The United States Constitution with the adoption of 
the Fifth and Fourteenth Amendments, made the use of land and 
water our civil rights. Why then can a few radicals prevent us 
from using lands we have for 400 years. They have been here 25 
years, remnants of the drop-out generation. Why are we being 
subordinated to plants and animals. We need at least equal 
treatment. I ask you, who knows and has taken care of the land 
and water better? Traditional livelihoods are the fiber of our 
culture. Grazing, harvesting woods, vigas, latias, and using 
water for crops is what maintains us and made us endure the 
hardships of our area.
    Perhaps it was best said by one of my elders in Cuba, New 
Mexico. ``Pacheco, what are we to do! I have only 30 acres, a 
good house I built myself. My wife and I raised three children, 
sent them all through college. I always paid my taxes, owe no 
one any money. I have 30 cows, worked at the sawmill in the 
summers, cut and sold dead wood in the winter. Now what? What 
does my country want me to do. Become homeless go to 
Albuquerque and be a burden on everyone else.'' You have taken 
his culture and his pride.
                                ------                                


    Statement of William J. Moore, Wildlife Specialist, New Mexico 
                       Department of Agriculture

    The Endangered Species Act requires decisions be based on 
the ``. . . best scientific and commercial data available. . . 
.'' My purpose in writing this testimony is to outline 
deficiencies, which I believe exist in the review and 
application of the best scientific information available.
    My comments focus on the southwestern willow flycatcher 
(Empidonax traillii extimus) and the effect this species is 
having on the livestock industry in New Mexico. In my 
professional option, the majority of the current controversy 
over this species' protection and livestock grazing could be 
ameliorated through a more objective evaluation and application 
of the scientific information. In addition, Federal agencies 
failure to comply with the procedural requirements of the ESA 
have contributed greatly to the current crisis facing New 
Mexico's livestock industry. This failure to comply with 
statutory responsibilities has forced them into a reactionary 
mode investing resources to address what should be frivolous 
lawsuits. In an effort to quickly attain procedural compliance 
with the ESA and stave off unfavorable court rulings these 
agencies are implementing sweeping management actions which 
would not be necessary if a more proactive approach (i.e. 
timely attention) to these issues had been undertaken.
    The southwestern willow flycatcher (flycatcher) was 
federally listed in 1995 through the publication of the 
Endangered and Threatened Species: Southwestern Willow 
Flycatcher; Final Rule (final rule) (FWS 1995). At that time 
the U.S. Fish and Wildlife Service (FWS) estimated the 
flycatcher's population in the range of 300 to 500 pairs. New 
Mexico was believed to contain the majority of the population. 
Biologists believe this population range is still an accurate 
reflection of the flycatcher's population size (Sogge et al. 
1997). However, other statements within the final rule and 
subsequent management direction are not supported by recent 
field studies or the scientific literature to which they were 
originally attributed. A good example is the relationship 
between the presence of livestock and brown-headed cowbird 
(Molothrus ater) brood parasitism.
    Gill (1990) defines brood parasites as, ``. . . birds that 
relinquish care of their young to foster parents by laying 
their eggs in the nests of other birds.'' Obligate brood 
parasites are those birds which do not attempt to nest and 
therefore, rely completely on other species to raise their 
young. The brown-headed cowbird is the only obligate brood 
parasite in North America (Brittingham and Temple 1983).
    Studies have reported the flycatcher being subjected to 
high rates of brood parasitism from cowbirds (Brown 1988, 
Harris 1991, Whitfield and Placer 1994). As a result, cowbird 
brood parasitism is identified as a threat to the continued 
existence of the flycatcher (FWS 1995).
    In New Mexico, more than 230 head of livestock were removed 
from three Bureau of Reclamation (BOR) grazing allotments. In 
correspondence to the BOR, the FWS stated,

        ``The [Fish and Wildlife] Service believes that continued 
        grazing in the . . . grazing allotments during the flycatcher's 
        breeding season this year would likely result in `take' of the 
        species in the form of brown-headed cowbird nest parasitism. . 
        . .'' In other words, the FWS is asserting the presence of 
        brown-headed cowbirds, and the resultant brood parasitism, is 
        attributable to the presence of livestock.
    The FWS has asserted this relationship exists in other documents as 
well, including biological opinions issued to the Bureau of Land 
Management (BLM). For example, in the incidental take statement issued 
to the BLM's Mimbres Resource Area (FWS 1997a), the FWS stated, ``The 
[Fish and Wildlife] Service believes that current management as guided 
by the MRA RMP [Mimbres Resource Area, Resource Management Plan] may 
result in the incidental take of the annual reproductive effort of two 
pair of southwestern willow flycatchers due to cowbird brood 
parasitism. . . . The anticipated take of the willow flycatchers is 
based on the persistence of grazing in the immediate vicinity and the 
likelihood of cowbird parasitism. . . .''\1\ The biological opinion 
issued to the Taos Resource Area contains similar language (FWS 1997b). 
Therefore, if cowbird parasitism occurs, the FWS is assuming livestock 
grazing on BLM allotments is the facilitator for this activity, and if 
cowbird parasitism is occurring, the removal or reduction of livestock 
will result in an appreciable reduction in the brood parasitism rate.
---------------------------------------------------------------------------
    \1\ U.S. Fish and Wildlife Service, N.M. Ecological Services 
Office. 3/18/97. Memorandum (and attachment) to Bureau of Reclamation, 
Albuquerque, NM. 4pp.
---------------------------------------------------------------------------
    This alleged relationship between the presence of livestock and 
brood parasitism rates has also been incorporated into litigation. For 
example, the Forest Guardians, a Santa Fe based special interest group, 
has asserted in a Notice of Intent to Sue the Forest Service ``. . . 
concentrations of livestock on the national forests of the Southwestern 
Region have led to increased numbers of cowbirds, resulting in cow-bird 
parasitism''\2\ Thus, it appears Federal agencies and special interest 
groups have accepted that the presence of livestock will indirectly 
impact flycatcher populations, without qualification, by increasing 
cowbird brood parasitism rates. However, the question should be asked, 
``what exactly does the scientific literature report?''
---------------------------------------------------------------------------
    \2\ Forest Guardians. 1997. Notice of Intent to Sue (Sec. 11, 
Endangered Species Act), Issued to the Southwestern Region of the U.S. 
Forest Service, Region 3, (4/25/97).
---------------------------------------------------------------------------
    In the final rule listing the flycatcher as endangered, the FWS 
(1995) states, ``The association of cowbirds with domestic livestock is 
detailed in the sources cited in this final rule.'' Therefore, in 
addition to other sources, I conducted a very focused review of the 
literature cited in the final rule (FWS 1995). In that review I found 
literature cited inappropriately in the final rule (FWS 1995). In 
addition, I believe much stronger conclusions were made than can be 
supported by the scientific literature. This has led to some 
questionable management recommendations and decisions. Following is a 
brief assessment of my findings on the relationship between livestock 
presence and flycatcher viability.
    In the final rule (FWS 1995), the FWS outlined the relationship 
between livestock presence and cowbird brood parasitism on flycatchers 
as follows.

        The increase in cowbirds in the Southwest and parasitism of E. 
        t. extimus and other birds are generally attributed to the 
        following scenario: The introduction of modern human 
        settlements, livestock grazing, and other agricultural 
        developments resulted in habitat fragmentation. Simultaneously, 
        livestock grazing and other agriculturad developments served as 
        vectors for cowbirds by providing feeding areas near host 
        species, nesting habitats (Henna 1928, Gaines 1974, Mayfield 
        1977).
    Brown-headed cowbirds were at one time ``. . . limited to open 
grasslands of central North America.'' (Lowther 1993). Some authors 
have conjectured the cowbirds followed the great herds of bison (Bison 
bison), and fed on the insects stirred up by these herds (Skutch 1996, 
Lowther 1993, Robinson et al. 1992). The FWS (1995) has concluded 
domestic livestock are a surrogate for the historic herds of bison. In 
the final rule (FWS 1995), the FWS states, ``Where high parasitism 
rates are found in E. t. extimus nesting locations in areas with no 
livestock grazing at the nest site, there have been livestock nearby 
that provide feeding sites in close enough proximity to facilitate 
cowbird parasitism. In support of this statement, the FWS notes grazing 
does not occur in the Grand Canyon National Park, but ``. . . open 
range grazing and an introduced bison herd occur on adjacent lands.'' 
(FWS 1995). The FWS (1995) also notes cowbirds concentrate at pack 
animal corrals within the park.
    Such reasoning inappropriately assumes what may be a simple 
correlation (livestock and cowbirds are present) is a cause and effect 
relationship (cowbirds are present because livestock are present). This 
is a fatal flaw in scientific research, which leads to unsupported and 
sometimes grossly erroneous conclusions. For example, one could likely 
find a statistically significant relationship between increased ice 
cream sales and increased crime rates. However, I do not think anyone 
looking at the issue objectively would automatically conclude increased 
ice cream sales resulted in an increase in crime rates.
    It should also be pointed out rangeland livestock grazing (as is 
being evaluated in New Mexico) is much different from pack stations. 
This distinction is not made in the final rule (FWS 1995) or other 
Federal documents. In addition, modern livestock management practices 
result in much different ``grazing patterns'' than those exhibited by 
historic bison herds.
    In the Sierra-Nevada, Rothstein et al. (1980), ``. . . found midday 
feeding aggregations most often around horse corrals at mountain pack 
stations. Cowbirds foraged on the ground and seemed to obtain much of 
their food by probing through and pecking into horse manure.'' There 
are factors that invalidate direct application of these findings to 
rangeland livestock grazing. These factors include: (l) Beyond the 
obvious fact these are different species, cattle are ruminants, while 
horses possess a simple monogastric digestive system. This means cattle 
are much more efficient at digesting and breaking down plant material. 
Thus, quantities of seeds and other plant material found in horse 
manure would not be available in cattle feces. (2) Several horses 
concentrated in a corral are not comparable to stocking rates 
established on public lands in New Mexico. For example, six or more 
horses confined in a corral of a few hundred feet are not applicable to 
a stocking rate of the same number of cattle scattered over a square 
mile. (3) Horse corrals have a great deal of people and other human 
activity, which may be contributing to their attractiveness to brown-
headed cowbirds. For example, animals are being fed at these pack 
stations. Perhaps this feed is an attraction to cowbirds. Bent (1965) 
quotes Coues (1874) as stating, ``. . . every camp and stock-corral, 
permanent or temporary, is besieged by the busy birds [cowbirds], eager 
to glean sustenance from the wasted forage.'' In short, I do not 
question the observations made by Rothstein et al. (1980) that cowbirds 
were clumped at pack stations. However, I do question their 
applicability to livestock grazing on public lands in New Mexico.
    In a second study, Rothstein et al. (1984) found feeding sites most 
commonly used by the cowbirds in their study include: a small horse 
pasture and corral, a large horse pasture, two separate bird feeders, 
and a campground. Note two of the three ``types'' of feeding areas 
(bird feeders and campgrounds) are not associated with livestock.
    If livestock must be present before cowbirds can be present, then 
on public land grazing allotments the cowbirds annual arrival would 
logically coincide with or be shortly after the arrival of livestock. 
However, Verner and Ritter (1983) did not find a significant difference 
in cowbird counts conducted before and after the arrival of cattle and 
horses. Based upon the sighting of a nestling, the authors also 
concluded cowbirds began laying eggs as much as a month prior to 
livestock turn-out (Verner and Ritter 1983). Egg production requires a 
great deal of resources (Gill 1990), and these cowbirds would have very 
recently migrated. This suggests (in contrast to what is being 
asserted) the presence of livestock is not required for a stable 
cowbird food source.
    This takes me back to the FWS's statement outlining the asserted 
relationship between livestock presence and cowbird brood parasitism. 
As mentioned earlier, in the final rule (FWS 1995), which is the 
document that justified and provided Federal protection for the 
flycatcher, the FWS stated:

        The increase in cowbirds in the Southwest and parasitism of E. 
        t. extimus and other birds are generally attributed to the 
        following scenario: The introduction of modern human 
        settlements, livestock grazing, and other agricultural 
        developments resulted in habitat fragmentation. Simultaneously, 
        livestock grazing and other agricultural developments served as 
        vectors for cowbirds by providing feeding areas near host 
        species' nesting habitats (Havana 1928, Gaines 1974, Mayfield 
        1977).
    Webster's dictionary defines vectors as ``an organism that 
transmits a pathogen.'' This is a strong indictment against livestock 
grazing (and other agricultural developments). Therefore, the cited 
literature should be studies confirming this relationship. However, 
Hanna (1928) is a 1928 update on the different bird species parasitized 
by the dwarf cowbird in the San Bernardino Valley. The article does not 
mention livestock grazing (or other agricultural developments), nor is 
there any mention of feeding areas utilized by cowbirds. The stated 
purpose of Gaines (1974) is to compare current breeding bird status 
within the Sacramento Valley to earlier records. It provides no data to 
support the FWS's statement. Mayfield (1977) is a summary of the 
author's work on Kirtland's warblers (Dendroica kirtlandii), with 
emphasis on brown-headed cowbird brood parasitism, but it also fails to 
provide any data to support the above indictments against livestock 
grazing. Thus, one must question whether the removal of livestock from 
BOR grazing allotments at Elephant Butte Reservoir resulted in any 
appreciable improvement in that flycatcher population. Based upon my 
review, it does not appear this decision was based on a thorough and 
objective review of the best scientific information.
    Another recent management decision of concern involves the 
Southwest Region of the U.S. Forest Service. In April of this year the 
Forest Service committed to removing livestock from over 200 miles of 
streams under its management authority. This massive decision was not 
made based on recently collected field data indicating degraded stream 
conditions. Rather, this commitment was made as part of an out of court 
settlement agreement with two special interest groups.
    The Forest Service, by its own admission, was out of compliance 
with the procedural requirements of the ESA. Therefore, it made this 
commitment in order to avoid the possibility of a court injunction. 
What made this decision even more troubling is the Forest Service and 
these special interest groups intentionally excluded the affected 
livestock permitters from these negotiations.
    The Forest Service is also taking other steps to prohibit livestock 
use in potential or occupied flycatcher habitat (63 FR 29692-29695). 
This is despite data collected by Forest Service biologists which is 
contrary to the current prevailing assumption that livestock grazing 
and flycatchers are incompatible.
    As was mentioned earlier, biologists familiar with the status of 
the flycatcher estimate its population at between 300 and 500 breeding 
pairs (Sogge et al. 1997). Depending upon which end ofthe range you 
choose (300 or 500) the U-Bar Ranch in the Cliff-Gila Valley of New 
Mexico supports approximately one-third to one-half of the known 
flycatcher population in the United States. 1997 field season estimates 
range from 150 (Stoleson and Finch 1998) to 174 (Parker and Hull 1997) 
nesting pairs. The next largest population of flycatchers contains only 
38 pairs (Stoleson and Finch 1998). Yet, the U-Bar Ranch has been 
involved in livestock production for some time and currently supports 
400 head of livestock, which are present throughout the flycatcher's 
breeding season. (Parker and Hull 1994, Hull and Parker 1995, 1996). 
Stoleson and Finch (1998) summarized this paradox as follows:

        Paradoxically, the Cliff-Gila population occurs on a working 
        cattle ranch that includes water diversion for irrigation, 
        leveed river banks for flood control, and floodplain 
        agriculture--all activities identified as potential threats to 
        the existence of the flycatcher by the U.S. Fish and Wildlife 
        Service (U.S. Fish and Wildlife Service 1995).
    Stoleson and Finch (1998) found some interesting results in their 
first year of data collection. For example, nesting success in riparian 
patches open to livestock grazing (13/21=61 percent) did not differ 
significantly from patches were livestock were excluded (24/47=51 
percent). Overall nesting success was found to be 55.2 percent (n=68). 
The only other site were nesting success has been found to be greater 
was in San Luis Rey, California, where intensive cowbird control 
efforts have been instituted for several years. More significantly, 
``The density of breeding birds calculated for the site (773 to 1114 
pairs per 40 ha) is the highest density ever recorded for non-colonial 
birds in North America.''
    Bury and Corn (1995) warn the scientific community against 
accepting hypotheses which have not been critically reviewed. In my 
assessment this is at least part of the problem with the current 
controversy surrounding flycatcher management in New Mexico. There 
seems to be a consensus in Federal agency documents and decisions, 
without qualifiers, that livestock grazing will negatively impact 
flycatcher populations and/or habitat. Yet, as has been pointed out in 
this testimony, such a blanket approach to management (i.e. total 
livestock removal) is unwarranted. Livestock and flycatchers can 
coexist and flourish. If this can occur on private land, as is the case 
in the U-Bar Ranch example, why cannot it happen on public land? It 
appears science (sound natural resource principles and practices) is 
not driving the ESA, as is mandated in the law.
    Because Federal agencies have not been able to meet their statutory 
responsibilities, they are no longer in control of the situation. 
Instead, special interest groups, through litigation, based upon 
procedural ``technicalities,'' are dictating management of our Federal 
lands. This begs the question, why are our Federal agencies seemingly 
unable to comply with the ESA? I believe there are several factors 
which need to be addressed.
    There needs to be more accountability within and/or by Federal 
agencies.
    The final rule (1995) to list the flycatcher was published in 
February 1995. The Forest Service had nearly three years to complete 
its consultation responsibilities. Yet, this task was not accomplished. 
The FWS has also filed to meet its obligations in a timely manner. The 
FWS has a policy that clearly states, ``the Service will . . . develop 
recovery plans within two and a half years after final listing.\3\ 
[emphasis original]. However, it has been over three and a half years 
since the flycatcher was listed and any hopes for a recovery plan are 
at least another year away.
---------------------------------------------------------------------------
    \3\ Endangered and Threatened Wildlife and Plants: Notice of 
Interagency Cooperative Policy on Recovery Plan Participation and 
Implementation Under the Endangered Species Act, 59 FR 34272-34273, (7/
1/97).
---------------------------------------------------------------------------
    In private conversations with Federal land management personnel 
(i.e., BLM and Forest Service), they complain about the amount of time 
it takes for the FWS to complete a consultation (sometimes years). 
There are also complaints the FWS is evaluating programs and dictating 
management without possessing any technical knowledge or experience. 
For example, the FWS is mandated to evaluate the impacts of livestock 
grazing. Yet, they have no experience or training in designing or 
implementing grazing strategies. On the reverse, the FWS complains 
Federal land management agencies do not have data to verify to its 
satisfaction that a particular grazing strategy will not impact a 
species. Therefore, they must err on the side of caution in these 
recommendations. This lack of trust and efficiency becomes compounded 
when threats of litigation are allowed to dictate the situation.

         Litigation has to be removed as the central, driving 
        force behind ESA implementation.
    Every Federal agency decision made in regards to the flycatcher, 
beginning with the original petition to list, has come about as a 
result of a lawsuit or threat of a lawsuit. As a result of being 
produced in such a crisis mode, the biological integrity of decisions 
suffer. I believe this is part of the problem with the FWS's 
interpreta-

tion and land management agencies' implementation of the ``best 
available scientific and commercial data.''
    Litigation is not only resulting in less than thorough decisions, 
but it is also resulting in a waste of time and financial resources. An 
example of this is the critical habitat designation for the flycatcher. 
In that designation (62 FR 39129-39147) the FWS noted the designation 
meets ``the technical requirements of the [Endangered Species] Act . . 
.'' However, it also stated, ``. . . [the] designation provides little 
or no conservation benefit despite the great cost to put it in 
place.''(62 FR 39130).
    Special interest groups are utilizing the ESA to create what has 
been described as a ``legal train wreck.'' These groups have been very 
explicit in stating their objective is to ``rid our public lands of all 
cattle grazing.'' The present ESA, and all of its procedural 
requirements, has and will continue to be a very effective tool in 
achieving these group's political (not biological) agenda. These groups 
have stated they are planning to continue to sue the FWS to list more 
species. Therefore, there is no foreseeable end to this train wreck 
unless the ESA is provided some substantive changes. These changes need 
to focus on a very fundamental change in the philosophy of how the ESA 
is implemented.
         The ESA's current punitive, command and control 
        approach to species recovery should be replaced with incentives 
        for species recovery.
    Under the current ESA system there are no positive outcomes for 
farmers and ranchers who discover an endangered species on their 
property. The U-Bar Ranch provides an excellent opportunity to observe 
(and learn) how an endangered species can coexist and prosper with 
diverse land uses. It should be rewarded for its openness and efforts. 
Instead, at least one special interest group has tried to encourage the 
FWS to restrict the U-Bar's activities.
    Maybe not to the same degree or involving the same species, but I 
believe there are more U-Bar examples. However, under the current 
system, it is in the landowner's interest to keep the discovery of an 
endangered species secret. Under the current system, the best such an 
individual can hope for is to be left alone. Therefore, why report it 
in the first place?
    New Mexico is considered a public lands state. However, more than 
40 percent of it is still in private ownership. In most cases these 
private lands were selected because they were considered to be the most 
productive lands for a family to survive upon. As such, these private 
lands also have some of the best wildlife habitat in the state.
    Like any group of people, there are some better than others. 
However, based upon personal experience, I can honestly say farmers and 
ranchers care about taking care of the land and the wildlife it 
supports. The Federal agencies need somehow to foster this view. This 
means turning endangered species into an asset instead of a liability. 
Everyone, except those organizations striving for divisiveness, would 
benefit from such an approach.

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