[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]



 
     JARBIDGE RIVER POPULATION OF BULL TROUT -- TRULY THREATENED?
=======================================================================



                        OVERSIGHT FIELD HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                     July 27, 2002 in Elko, Nevada

                               __________

                           Serial No. 107-149

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

                    JAMES V. HANSEN, Utah, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,                   George Miller, California
  Vice Chairman                      Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana     Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Peter A. DeFazio, Oregon
Elton Gallegly, California           Eni F.H. Faleomavaega, American 
John J. Duncan, Jr., Tennessee           Samoa
Joel Hefley, Colorado                Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado              Calvin M. Dooley, California
Richard W. Pombo, California         Robert A. Underwood, Guam
Barbara Cubin, Wyoming               Adam Smith, Washington
George Radanovich, California        Donna M. Christensen, Virgin 
Walter B. Jones, Jr., North              Islands
    Carolina                         Ron Kind, Wisconsin
Mac Thornberry, Texas                Jay Inslee, Washington
Chris Cannon, Utah                   Grace F. Napolitano, California
John E. Peterson, Pennsylvania       Tom Udall, New Mexico
Bob Schaffer, Colorado               Mark Udall, Colorado
Jim Gibbons, Nevada                  Rush D. Holt, New Jersey
Mark E. Souder, Indiana              Anibal Acevedo-Vila, Puerto Rico
Greg Walden, Oregon                  Hilda L. Solis, California
Michael K. Simpson, Idaho            Brad Carson, Oklahoma
Thomas G. Tancredo, Colorado         Betty McCollum, Minnesota
J.D. Hayworth, Arizona               Tim Holden, Pennsylvania
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana

                      Tim Stewart, Chief of Staff
           Lisa Pittman, Chief Counsel/Deputy Chief of Staff
                Steven T. Petersen, Deputy Chief Counsel
                    Michael S. Twinchek, Chief Clerk
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                



















                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on July 27, 2002....................................     1

Statement of Members:
    Gibbons, Hon. Jim, a Representative in Congress from the 
      State of Nevada............................................     1
        Prepared statement of....................................     8

Statement of Witnesses:
    Brackett, Bert, Cattle Rancher, Flat Creek Ranch, Rogerson, 
      Idaho......................................................    52
        Prepared statement of....................................    53
    Carpenter, Hon. John C., Assemblyman, Nevada State Assembly..    14
        Prepared statement of....................................    16
    Murphy, Dennis D., Professor, Department of Biology, 
      University of Nevada-Reno..................................    44
        Prepared statement of....................................    47
    Roberts, Brad, Chairman, Elko County Board of Commissioners..    10
        Prepared statement of....................................    11
    Trafton, Stephen D., Western Native Trout Program, Trout 
      Unlimited (California Chapter).............................    49
        Prepared statement of....................................    50
    Vaught, Robert L., Forest Supervisor Humboldt-Toiyabe 
      National Forest, Forest Service, U.S. Department of 
      Agriculture................................................    26
        Prepared statement of....................................    28
    Weller, Gene, Deputy Administrator, Nevada Division of 
      Wildlife, Nevada Department of Conservation and Natural 
      Resources..................................................    39
        Prepared statement of....................................    41
    Williams, Robert D., Field Supervisor, Nevada Fish and 
      Wildlife Office, Fish and Wildlife Service, U.S. Department 
      of the Interior............................................    20
        Prepared statement of....................................    23



















 OVERSIGHT FIELD HEARING ON JARBIDGE RIVER POPULATION OF BULL TROUT -- 
                           TRULY THREATENED?

                              ----------                              


                        Saturday, July 27, 2002

                     U.S. House of Representatives

                         Committee on Resources

                              Elko, Nevada

                              ----------                              

    The Committee met, pursuant to call, at 1:03 p.m., at the 
Elko Convention Center, 700 Moren Way, Elko, Nevada, Hon. Jim 
Gibbons presiding.

STATEMENT OF THE HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF NEVADA

    Mr. Gibbons. The Committee on Resources hearing will come 
to order.
    I'm Jim Gibbons, your Congressman from the Second District 
of Nevada, and I want to welcome all of you here, and I 
personally want to thank all of you for coming out today on a 
Saturday to attend what I think is going to be a very important 
hearing.
    As a member of the House Resources Committee, I'm honored 
to bring this field hearing to Elko, and I do apologize for 
myself and no one else from the Resources Committee being here, 
but that's because we finished our work in Washington, D.C., 
this morning at 4 a.m., and on the way to the airport at 5 this 
morning, many of the other members had indicated that their 
flight schedules and their hearing schedules were so turned 
around by the lateness of last night's hearing or this 
morning's hearing that they were unable to be here. So I want 
to say that simply because I'm the only one here, I can assure 
you that all of the records and comments of the testimony will 
be on the record, and it's going to be easy for me because I 
don't have to yield to any other Congressman to ask questions. 
I get to share the whole day with you.
    But let me say that Elko is the perfect choice for this 
hearing. It is going to be a hearing on the Endangered Species 
Act. And Elko in particular is special to me. Not only because 
it's an important part of the Second Congressional District 
which I have had the privilege to represent for the last 6 
years, but it's also because I believe that Elko is God's 
country, and it is just an extreme pleasure for anybody to 
visit and for me to come here and have one of these hearings. 
It's a great honor to be away from Washington, D.C.
    Actually it's my opinion that the farther away you get from 
Washington, the more common sense you can have in discussion on 
any subject. And that's important.
    But in all seriousness, having the witnesses and other 
interested parties in attendance here today I think speaks 
volumes for the dedication of your community and the State of 
Nevada as well. This is a beautiful Saturday, and I want to get 
right down to business so that we can finish this hearing in a 
reasonable amount of time and that each of you can still get 
out and hopefully enjoy some part of your Saturday and your 
weekend.
    Let me begin by telling you what the overview of what we're 
going to do here today is, and then we'll get on with it. What 
I plan to do is read my opening remarks here. I'm going to go 
through a little bit of a Power Point presentation, and that's 
why we set it up here on the screen for you, to give you a 
little better insight, a little better education, kind of an 
ESA 101 course to let you have a better idea of what is 
happening with the Endangered Species Act, what is happening in 
particular with reference to the bull trout and the ESA.
    Let me start with a little history in my remarks because it 
goes all the way back to 1973, and that is when Richard Nixon 
signed the Endangered Species Act into law, and I think then 
the intent of the ESA, and I will quote, was to ``conserve 
ecosystems upon which endangered species depend and to provide 
a program to conserve such species.'' since that time the 
United States has witnessed the listing of over 1200 animals 
and plants as threatened or endangered by the U.S. Fish and 
Wildlife Service and the National Marine Fisheries Service. A 
majority, a vast majority, a large percentage of that number 
are out West.
    Unfortunately, the ESA, or Endangered Species Act, and if I 
say this acronym ESA, I mean Endangered Species Act, has not 
been so much a safety net for endangered species at or 
approaching the edge of extinction as it has been a primary 
land management tool in the hands of regulatory agencies.
    I don't believe it was ever the intent of Congress to 
provide the Fish and Wildlife Service or the degree of control 
it wields over public land management, agencies, and private 
landowners today that it has, and it certainly was never the 
intent of Congress to vest this power in the hands of very few 
people.
    The Jarbidge population of the bull trout listed as 
threatened by the U.S. Fish and Wildlife Service on March 30th 
of 1999 is a case in point of how ESA's sword is sometimes 
wielded in isolated western watersheds. The question regarding 
the success of the Endangered Species Act will be judged 
historically on the validity of the species that were listed.
    This hearing today is one of a series of hearings by the 
House Resources Committee. We have spent much of the 107th 
Congress looking at how the ESA requirement to make 
determinations on the basis of whether the best scientific and 
commercial data has been interpreted by the regulatory agencies 
as reflected in listing and consultation decisions, and while 
erring on the side of conservation is prudent, philosophical 
guidelines for decisionmakers charged with the survival of the 
species can sometimes be an overzealous use or abuse of the 
flexibility that is intrinsic to this philosophy, and that is a 
concern of all of us.
    We have heard it said that the South Canyon Road issue was 
a primary impetus for this listing. I, too, was troubled by the 
sequence of those events. But please note we are here today to 
talk about the motives for the listing, but the basis for the 
documenting in the listing rule, and this is our primary 
purpose, not necessarily to talk about the Jarbidge Road or the 
South Canyon Road.
    We want to see if the decision to list the bull trout was 
based solely on the best available scientific data as is 
required by the Endangered Species Act and if that data is 
science based or more in the realm of speculation or opinion.
    We also want to hear what some of the latest science may be 
on the Jarbidge population, what criteria must be met to delist 
the specific bull trout population, and to determine whether we 
are in a position to proceed toward delisting.
    I'm also very interested to hear from our local officials 
and impacted residents of the Jarbidge watershed area, and Elko 
County in particular, their stories, and their stories are no 
less important than our discussion of good science. Responsible 
environmental stewardship can go hand in hand with meeting 
society's needs.
    I want to thank everyone for being here this morning, and I 
also want to point out something. It's taken a tremendous 
amount of work putting this hearing on, and I appreciate the 
interest shown by the number of people who have turned out for 
this hearing today. Because this is an official Congressional 
hearing as opposed to a townhall meeting, we have to abide by 
certain rules of the Committee and of the House of 
Representatives. So we kindly ask that there be no applause of 
any kind or any kind of demonstration with regard to testimony.
    It is important that we respect the decorum of the House 
rules and the rules of the Committee, and I look forward to 
this hearing from the panel of witnesses today. Let me remind 
the witnesses that under our Committee rules, they must limit 
their oral statements to 5 minutes, but that their entire 
statement will appear in the record.
    We will also allow the entire panel to testify before 
questioning the witnesses, and I would like to recognize--
before I recognize the first panel, what I would like to do is 
take a moment and go through this Power Point briefing to sort 
of give you the lay of the land, and as I said, Endangered 
Species Act 101 course that might help you better understand 
what takes place and how it has affected you in particular in 
Elko County with the bull trout.
    So first slide. What's important is to look at the 
chronology of the listing of the bull trout. In November 1st of 
1994, a group called Friends of the Wild Swan brought a lawsuit 
to force the Fish and Wildlife Service to list various members 
of various species including the bull trout as endangered. The 
Fish and Wildlife Service then determined that while it may 
have been ripe for consideration, that they had other things to 
do, and therefore, in '96, the Oregon District Court directed 
the Fish and Wildlife Service to go back and reconsider that. 
In other words, moving their--forcing their decision out rather 
than allowing for them to look at other areas.
    March 13th of '97, they came out with a proposed rule, but 
it did not list the bull trout. Therefore, in April of '97, the 
Court ordered the Fish and Wildlife Service to go back and 
reconsider their decision, and in June of '97, a proposed rule 
by the Fish and Wildlife Service came out again but did not 
list the bull trout.
    So therefore, in December of '97, the court ordered them 
again to reconsider what they had done. And in '98, a proposed 
rule finally came out after 4 years of being pushed by the 
courts to list the bull trout. And they came out with a 
proposed rule in 1998. In August of '98, they gave a 240-day 
emergency listing. This was probably precipitated by the road 
issue that we talked about earlier.
    In March 30th of 1999, the Fish and Wildlife Service 
finally listed the bull trout as threatened.
    That's the chronology of where we are and how we got to 
where we are today. Let me give you some definitions that might 
help you. The DPS is another acronym for distinct population 
segment. Metapopulation is the interaction or the interacting 
network of local populations of fishes that may be different 
but they do interact.
    A nodal is the seasonal migration area, probably the lower 
point along the stream where fish migrate up and down, and then 
you get to a focal point, which is the upper colder part of the 
water where spawning usually takes place. When you hear those 
areas and you get to migratory versus resident, bull trout are 
migratory in their adult stage, they are not necessarily a 
resident fish, but they do migrate and have spawning in the 
upper areas in the colder waters.
    To look at the basis for a threatened listing fish is the 
purpose of this hearing, so the rule and issue of the Fish and 
Wildlife Service is what we're going to talk about today.
    Next. Here are some of the questions we want to ask. Was 
the decision based on the best available scientific data? Is 
there any new information which might help us make that 
decision? And what is the criteria needed and necessary to 
delist? And what further information is needed if we don't have 
it? What would be a recovery program or what would one look 
like if we had one?
    And the questions we're not asking, almost as important. 
What was the motivation behind the listing? We don't want to 
get into that. And is the South Canyon Road Federal or county? 
That is outside of the purview of this hearing today.
    And is the Nevada Department of Wildlife report on the bull 
trout based on best available science? We're not going to talk 
about what Nevada did. We're going to talk about what the 
Federal Fish and Wildlife Service did.
    Here is our ESA 101. Remember I said there were 1200 
species listed, approximately 1200 around the United States. 
But only 11 of those 1200 have ever been delisted. And the 
evidence of program failure or success is one of the questions. 
Because the purpose of the ESA to bring species back from the 
edge of extinction and get them off of the Endangered Species 
Act listing. That is the purpose of the Act.
    So those decisions to list the species must be made by this 
criteria and this criteria alone, and that is solely based on 
the basis of the best scientific and commercially available 
data.
    Is there too little data? Well, the Fish and Wildlife 
Service--when there is too little data, let's look at this. 
Here is what the Fish and Wildlife Service handbook says. You 
got to give the benefit of the doubt to the species. And the 
conference report number 697 of the 96th Congress says that the 
best information available language was to give benefit of the 
doubt to the species.
    The problem is that gives too much control with vague 
language when you say the benefit of the doubt to very few 
people who make these decisions.
    And that's why we're coming and working on the Hansen bill 
which is designed to improve the language of the Endangered 
Species Act so that it works to do what the intent was, to 
bring species back. Because when you have 11- or 1200 species 
out there, with the label endangered or threatened, and you do 
nothing--for example, there's been a 4-year hiatus since the 
listing of the bull trout, and we still don't have a plan to 
delist them, a plan to bring them back from extinction. That 
tells me that we either have too much focus on listing plants 
and not enough focus on getting them off, getting them back 
from the brink of extinction.
    Court decisions. Well, here are some recent court decisions 
that will talk you through all of the concerns that have been 
brought up. First of all, agencies are not obligated to conduct 
studies to obtain missing data. Agencies cannot ignore 
available information.
    Congress, the intent is that the Fish and Wildlife Service 
take conservation measures before a species is conclusively 
headed for extinction. And the Service must utilize the best 
scientific data available, not the best scientific data 
possible.
    The bar that the Fish and Wildlife Service has to clear in 
terms of listing, in terms of evidence is very low, but it must 
at least clear some evidentiary purpose in order to list it.
    The mere speculation as to the potential for harm is not 
sufficient.
    Those are court rulings. They are very important and very 
significant on how they apply to the decision to list a 
species.
    Now, H.R. 4840, which is what we're talk working on, is 
called the Sound Science for Endangered Species Act Planning 
Act of 2002. There is a preference in the Act for empirical, 
field tested, and peer reviewed data. Any scientist will tell 
you this is the standard by which they judge scientific data on 
making any decision.
    The endangered or threatened determination is due to one or 
more of five factors: 1, the present or threatened destruction, 
modification, or curtailment of its habitat or range; 2, 
overutilization for commercial, recreational, scientific or 
educational purposes, disease or predation; the inadequacy of 
existing regulatory mechanisms--and we'll talk about all of 
these--and other natural and man-made factors affecting its 
continued existence.
    Now, here is Fish and Wildlife listing bases. The present 
or threatened destruction, modification or curtailment of its 
habitat or range; stream temperatures--and here is where we get 
into the decision why we're here--stream temperatures are 
likely--that's not sound, that's not definitive, just a vague 
it is likely--likely to be elevated by past forest practices. 
They have no data, but that's the reason, one of the reasons 
why they listed it.
    Sediment from road work is likely still impacting habitat. 
Yet they have no data on doing that.
    Road maintenance practices continue to impact habitat. 
Well, they have not studied it, there is no data.
    Grazing effects are minor and localized. So grazing was 
actually taken out of the picture because its impacts are minor 
and localized, and it did not pertain to the listing of the 
bull trout.
    Concern over mine adit discharges or mine tailings may be 
the source of problems. Those last two. There is no data on 
that. Nothing was studied, nothing was brought out to list that 
information, no empirical study, no data.
    The only migration barrier identified has been fixed. They 
put a ladder in there and found now bull trout migrating beyond 
the ladder. So they found that the fish do migrate. So the last 
one, the migration barrier has been taken care of.
    And water temperature is likely a barrier. Although water 
temperature data is missing. There is no water temperature 
data.
    Now this is the Federal Fish and Wildlife Service.
    Overutilization for commercial, recreational or scientific 
or educational purposes. Ambiguous, it's ambiguous on illegal 
harvest and incidental take. State scientific collection 
requirements are minimal.
    Disease or predation. Diseases are not thought to be a 
factor. Rainbow trout are again likely negatively affecting 
bull trout. No data. It's just a speculation. It's likely that 
it will affect the bull trout.
    The inadequacy of existing regulatory mechanisms. Poorly 
engineered roads and irresponsible maintenance practices. Bull 
trout task force did not produce a plan. Four years later.
    Other natural or man-made factors affecting its continued 
existence. Small isolated populations are susceptible to 
natural events.
    Every population in the world, you and I. Dinosaurs were 
subjected to this same problem. A meteoric impact can eradicate 
a population. A forest fire in the area, sediment runoff after 
the forest fire, plugging or choking the stream off, would 
dramatically affect that population. So every population has 
that same, whether it is a large or small, isolated, but even 
isolated small populations.
    What some scientists are saying who have reviewed all of 
the peer data. Let's go through some of their comments.
    Tom McMahon, a known biologist scientist and environmental 
extinction scientist said isolation from other species and 
small population size is significant. The Nevada Department of 
Wildlife data is questionable because of the way it was 
collected and extrapolations that they made from that data.
    Adequate population trend data is not available. So no one 
has studied the population trend over a long enough period of 
time to give you a sort of indication whether the population is 
decreasing or rising.
    The Bitterroot, Montana, bull trout, which is a similar 
bull trout, is isolated, it's a remnant fish, but it was 
abundant before 1930.
    Here is the American Society of Fisheries review of the 
data, what they say. Nevada data has problems, as we just 
talked about. It is estimated--they estimate, they have drawn 
some conclusions, they estimate 629 of these bull trout are in 
the west fork of the Jarbidge River. They give some ratio, and 
I'm not sure how they calculated it out, but they say there is 
.026 fish per mile--I think that is mile; maybe meter--it puts 
population in the high risk category. So it is small numbers 
there.
    The high probability of extinction is significant if the 
population is less than 2,000 fish. There is a 20 percent 
probability of persistence. That means there is a one in five 
chance if we do nothing the fish are going to survive. There is 
a four in five chance that this fish because of its small 
population, small--or it has a high probability of extinction 
because of its population and small numbers. Four and five says 
that it will not survive no matter what you do.
    The effective population of 19 to 64 fish, and that's far 
below the 500 needed that they say is necessary for the bull 
trout to succeed.
    Here we go again. Here is the reviewer number 2 from the 
same American Society of Fisheries. No evidence of interaction 
of subpopulations. That means these fish have different little 
schools of populations that migrate and interact up and down 
the stream area. And the focal distribution is small, making 
even protected areas vulnerable to stochastic events. Those are 
monumental events that take place, as we talked about.
    Dunham, another scientist, minimum population science, 
extinction risk is now moderate to high because of the 
population. Isolation of populations, extinction risk moderate 
to extreme. The replication populations, extinction risk 
moderation to extreme. Replication is those fish that are 
capable of reproducing and being able to sustain a population.
    There is no basis to assume that the population is at 
capacity for the system. Although Nevada, on the other hand, 
believes that because of the environment and because of the 
ecosystem and the habitat for the bull trout, that its 
population size today is pretty much governed by the 
environment, size of the stream and the habitat for it. In 
other words, it would be larger if it had the available habitat 
to do that, and if it were less, it would be smaller.
    Preliminary evidence suggests that subpopulations are not 
metapopulations. Subpopulations and metapopulations means they 
are interacting.
    Greg Watson, Fish and Wildlife Service. Assume that bull 
trout historically distributed more widely. Bull trout is a 
``K'', a predatory species of fish. Numbers never were high. 
That's what they are saying.
    Large enough basin to be self-replicating.
    Catastrophic events have always happened, migratory feature 
is a recovery mechanism. In other words, if you have a fire at 
some point in the stream, fish will migrate one side or the 
other, and as soon as the sediment clears out of the stream 
they will migrate back up and they will recover, but their 
migratory instincts to move away from where the environment is 
not suitable for them is a recovery mechanism that is 
instinctive to the fish.
    The bull trout are particularly selective in their 
requirements. Yes, they are. They have to have cold water.
    And population numbers have high magnitude of variability. 
In other words, when we looked at some of the numbers there is 
an assumption there is 629 bull trout. I don't think they went 
out and counted every one, but they have a high number of 
variability between the numbers that they can count.
    Don Chapman, another scientist, said the strongest case is 
for cataclysmic events. We talked about that. If a meteor 
strikes the Jarbidge area, guess what, folks? Not only will the 
bull trout be gone, we will probably all be gone.
    Speculates that species had a much larger range. That's 
what he is saying. That is just speculation that it had a much 
larger range.
    So in conclusion what we can say is that adequate data is 
lacking for this listing. The genetic data is lacking, the 
population trends haven't been studied, habitat needs have not 
been detailed. What we need to do is do a more intensive study 
of the fish either before you list it or after it is listed to 
figure out how to get it unlisted.
    That is the basic premise of where we are today. That's 
your ESA 101 course, ladies and gentlemen. And as I said, 
monitoring is needed, and I believe the issue today is, was the 
best scientific data used to make this determination, and 
that's what we will find out today.
    [The prepared statement of Mr. Gibbons follows:]

 Statement of Hon. Jim Gibbons, a Representative in Congress from the 
                            State of Nevada

    Ladies and Gentlemen, thank you for being here today for this 
important hearing. As a member of the House Resources Committee, I am 
honored to bring this field hearing to Elko, Nevada.
    Elko is a special community for me--not only because it lies within 
the Second District of Nevada--which I have had the privilege of 
representing in Congress for the last 6 years--but also because I 
consider this God's country. Also, it is my opinion that the further 
away we get from Washington, D.C. ... the more common sense we can 
interject into this discussion. But, in all seriousness, having our 
witnesses and other interested parties in attendance today speaks 
volumes of your dedication to this community--and to the State of 
Nevada.
    It is a beautiful Saturday--I want to get right down to business so 
that we can finish this hearing in a timely and productive manner--and 
so that each of you can get out and still enjoy the rest of your 
weekend.
    In 1973, President Richard Nixon signed the Endangered Species Act 
into law. The intent of ESA is to ``conserve ecosystems upon which 
endangered species depend and to provide a program to conserve such 
species.'' Since that time, the United States has witnessed the listing 
of over 1,200 animals and plants as Threatened or Endangered by the 
U.S. Fish and Wildlife Service and the National Marine Fisheries 
Service. As of this time last year, only 11 species had been de-listed 
due to recovery.
    This alone begs the question: Do we use these 11 species as 
evidence that ESA has failed?...Or, do we judge the success of the 
program on the number of listed species that still have intact 
populations? The answer to that question partially depends on whether 
one believes that the listed species were truly threatened or 
endangered to begin with!
    Unfortunately, the ESA has not been so much a safety net for 
endangered species at or approaching the brink of extinction...as it 
has been a primary land management tool in the hands of the regulatory 
agencies.
    It was never the intent of Congress to provide the U.S. Fish and 
Wildlife Service the degree of control it wields over public land 
management agencies and private land owners today. And, it certainly 
was never the intent of Congress to vest this power in the hands of so 
few.
    While Army Corps of Engineers aluminum-sulfate laden sludge still 
continues to be pumped into the Potomac River along Washington D.C., 
unhindered by ESA restraints, U.S. Fish and Wildlife Service and 
National Marine Fisheries Service continue their assault on the West.
    The Jarbidge population of bull trout, listed as threatened by the 
U.S. Fish and Wildlife Service on March 30 of 1999, is a case-in-point 
of how the ESA sword is sometimes wielded in isolated western 
watersheds. The question regarding the success of the Endangered 
Species Act will be judged historically on the validity of the species 
that were listed.
    This hearing today is one in a series of hearings by the House 
Resources Committee. We have spent much of the 107th Congress looking 
at how the ESA requirement to make determinations on the basis of 
whether the ``best scientific and commercial data'' has been 
interpreted by the federal regulatory agencies as reflected in listing 
and consultation decisions.
    While erring on the side conservation is a prudent philosophical 
guideline for decision-makers charged with the survival of species, 
overzealous use...or abuse...of the flexibility intrinsic to this 
philosophy is a real concern.
    We have heard it said that the South Canyon Road issue was a 
primary impetus for this listing. I too was troubled by the sequence of 
events.
    But--please note--we are not here today to talk about the motives 
for the listing...but the basis for it, as documented in the listing 
rule. This is our primary purpose.
    We want to see if the decision was based ``solely on the best 
available scientific data'' as is required by the Endangered Species 
Act...and if that ``data'' is science-based or more in the realm of 
speculative opinion.
    We also want to hear what some of the latest science is on the 
Jarbidge population; what criteria must be met to de-list this specific 
bull trout population; and, determine whether we are in a position to 
proceed toward de-listing.
    I am also very interested to hear from our local officials and 
impacted residents of the Jarbidge watershed and Elko County. Their 
stories are no less important than our discussion of good science. 
Responsible environmental stewardship can go hand-in-hand with meeting 
society's needs.
    The scales are currently tipped against any economic development 
which improves quality of human life.
    They are tipped against economic development that also provides a 
capacity for environmental stewardship unavailable in other parts of 
the world.
    Returning to a balance includes shedding light on the doomsday 
litany and exaggerations of the environmental movement.
    Decisions that disregard science will never stand the test of time.
    I want to thank everyone for being here this morning, and I also 
want to point out something. It's taken a tremendous amount of work 
putting this hearing on, and I appreciate the interest that is shown by 
the number of people who have turned out for the hearing today. Because 
this is an official Congressional hearing, as opposed to a town hall 
meeting, we have to abide by certain rules of the Committee and of the 
House of Representatives. So we kindly ask that there be no applause of 
any kind or any kind of demonstration with regards to the testimony.
    It is important that we respect the decorum and the Rules of the 
Committee. I look forward to hearing from the panels of witnesses 
today. Let me remind the witnesses that under our Committee Rules, they 
must limit their oral statements to five minutes, but that their entire 
statement will appear in the record. We will also allow the entire 
panel to testify before questioning the witnesses.
    I would like to recognize our first panel of witnesses.
                                 ______
                                 
    With that, let me turn to our first panel and you don't 
have to listen to me any more. I'm going to turn to panel one, 
which is Brad Roberts, Chairman of Elko County Board of 
Commissioners, and John Carpenter, Assemblyman for the State of 
Nevada Assembly, and those two, if you would come up, 
gentlemen, and take a seat.
    Gentlemen, while you are being so kind to come, and 
remember, we have a limited timeframe and a number of panels to 
get through, and I took more time than I needed. And so I ask 
you to be succinct, to the point. Your full and complete 
recorded testimony will be entered into the record, and if you 
could summarize it, it would be all the better.
    Who would like to start?
    Mr. Roberts. I can start.
    Mr. Gibbons. Beauty over age. Just kidding, Brad.

   STATEMENT OF BRAD ROBERTS, CHAIRMAN, ELKO COUNTY BOARD OF 
                         COMMISSIONERS

    Mr. Roberts. OK. My testimony actually runs about 5 minutes 
12 seconds, if I could be allowed the additional 12.
    Mr. Gibbons. Go for it. I'll give you the extra 12.
    Mr. Roberts. Congressman Gibbons and Members of the Panel, 
thank you for the opportunity to present testimony at this 
important hearing. I am Brad Roberts, Chairman of the Elko 
County Board of Commissioners. My testimony today will address 
the social and economic impacts of the listing of the Jarbidge 
river population OF bull trout.
    It is not possible today for me to provide you with the 
actual dollar impact this listing has had on the town of 
Jarbidge or our county. Jarbidge, Nevada, is one of the most 
remote towns in the lower 48 states. The town's business is 
comprised of bed and breakfasts, one bar-restaurant, a general 
store, and a gasoline station. In addition, two outfitters 
conduct business in the Jarbidge Mountains.
    The Jarbidge area is renowned for its Class 1 airshed, 
scenic beauty and numerous outdoor recreation opportunities. 
The key to the pleasurable experience of these visitors is 
access to the forest system lands in the area. In turn, these 
visitors are key to Jarbidge economic well being.
    A General Accounting Office report issued in April 1999 
identified the Jarbidge area as one with high potential of 
catastrophic fire. If a fire were to begin south of the town of 
Jarbidge, it would at the very least inhibit visitors from 
spending time in the area due to the diminished recreational 
opportunities and scenic values. In the worst case, the town of 
Jarbidge could be destroyed.
    The listing of the bull trout has prevented Nevada Division 
of Wildlife from stopping sport fishing in Jarbidge River. As 
the fishing experiences diminished by the lack of stocking, 
fewer anglers will visit Jarbidge, which reduces the revenue of 
the town's businesses.
    According to an Environmental Assessment prepared by the 
Forest Service in 1998, there are six fewer campsites available 
in the canyon than there were before the 1995 flood that 
damaged South Canyon Road. The lack of campsites undoubtedly 
has reduced the number of camping visitors, and dispersal of 
forest visitors is hampered by the lack of suitable campsites 
resulting in overuse of the remaining facilities, some of which 
include toilets which cannot be serviced and certainly create a 
greater environmental concern than some silt in the water.
    The Forest Service estimates that visitors to the forest 
system lands are increasing by two to 3 percent per year, but 
the Jarbidge area has experienced a reduction in facilities 
available for use by the visiting public. Fewer campers mean 
fewer dollars spent in Jarbidge. In fact, Jack Creechley, owner 
of the Outdoor Inn, says that his business has fallen 
approximately 20 percent since the bull trout was listed. 
Another business has closed.
    Clarke and Josaitis in the ``Recreation Specialist's Report 
for Jarbidge Canyon Road Reconstruction Project'' dated 
February 25th, 1997, state: ``it has been reported by Jarbidge 
business owners and observed in the field that visitor use in 
Jarbidge Canyon has dropped since the flood event. The overall 
decline in the number of people visiting the area is expected 
to continue under the current condition.''
    About 10 years ago--excuse me--for about 10 years the 
county has been trying to comply with the Federal Clean Water 
Act by installing a filtration plant for the Jarbidge River 
water supply which has 100 connections. Because of a variety of 
bureaucratic complications, we are now looking at a $1 million 
chlorination plant for a population of 60. Unfortunately, the 
bull trout is square in the middle of this causing us to do 
additional scoping and analysis prior to gaining approval for 
this vital project. The loss of a cooperative relationship 
between Elko County and the Forest Service has done no good for 
either party and has had a ripple effect throughout the county.
    A direct economic impact of this damaged relationship is 
the cost to both Elko County and the United States of the 
mediation and court sponsored settlement proceedings.
    The total appraised value of private property in Jarbidge 
is 4,206,000. Prior to the listing it was virtually impossible 
to acquire property in Jarbidge. Today about 10 percent of the 
property is for sale, and there are essentially no buyers 
coming forward. One business has closed.
    These may not seem like severe impacts, and our situation 
certainly pales in consideration to Klamath Basin, but this 
county, the fourth largest in the continental United States, 
with only about 50,000 residents, has about 72 percent of its 
area controlled by the Federal Government. Sales and property 
taxes are vital, and when anything adversely impacts our tax 
revenues, the entire county feels it.
    Clearly, the impacts of actions taken by Federal agencies 
are felt throughout our county. The listing of the bull trout 
and its subsequent effects on recreation in the town of 
Jarbidge has been detrimental to our well being.
    The bull trout is a survivor. It is a glacial relic, and 
there is no glacier for survival. It has lasted through floods, 
intensive grazing, logging, mining and sports fishing. It co-
existed with South Canyon Road for most of a century.
    Therefore, I conclude my prepared remarks with a request 
that you use every tool available to measure whether or not the 
bull trout is truly threatened by our road or is, as we 
believe, doing just as well as it is has for a very long time. 
Thank you for this opportunity to testify.
    [The prepared statement of Mr. Roberts follows:]

 Statement of Brad Roberts, Chairman, Elko County Board of Commissions

    Mr. Chairman, and members of the panel, thank you for the 
opportunity to present testimony at this important hearing. I am Brad 
Roberts, Chairman of the Elko County Board of Commissioners. My 
testimony today will address the Social and Economic impacts of the 
listing of the Jarbidge River population of bull trout.
    It is not possible today for me to provide you with the actual 
dollar impact this listing has had on the town of Jarbidge or our 
County. What I will share with you is a brief rundown of the adverse 
social and economic impacts we have seen, so that you might better 
understand how important this issue is to our County.
    Jarbidge, Nevada, is one of the most remote towns in the lower 48 
states, and could be considered as a mining ghost town. There are some 
12 year-around residents of the town, and in summer this increases to 
50 or 60. A large percentage of the summer residents are retired 
persons. The towns businesses comprise: a bed and breakfast, one bar/
restaurant, a general store, and a gasoline station. Other amenities 
include a U.S. Post Office and Volunteer Fire Department. In addition, 
two outfitters conduct business in the Jarbidge Mountains.
    The Jarbidge area is renowned for its Class 1 airshed, scenic 
beauty, and numerous outdoor recreation opportunities. These factors 
directly account for the bulk of Jarbidge commerce. Visitors enjoy a 
variety of leisure pursuits, including hunting, fishing, camping, 
hiking, backpacking, horseback riding, ATV and four wheel driving, 
birdwatching, and rockhounding. Key to the pleasurable experience of 
these visitors is access to the Forest System lands in the area. In 
turn, these visitors are key to Jarbidges economic well-being.
    Repair of South Canyon Road has been stymied by the emergency 
listing of the bull trout as a threatened species under the Endangered 
Species Act of 1973. Because the road has not been repaired, fire crews 
cannot readily access fires in Jarbidge Canyon south of Pine Creek, 
effectively placing the first fire line about three miles south of 
Jarbidge. This is unacceptable, as it clearly places a priority on the 
bull trout at the expense of people, their property, and the Forest. As 
a commissioner of this county, I am charged with protecting the lives 
and property of the county's residents. The listing of this fish is 
preventing me and my fellow commissioners from carrying out our 
mandate.
    A General Accounting Office report issued in April of 1999, 
identified the Jarbidge area as one with high potential of catastrophic 
fire. If a fire were to begin south of (or, up-canyon of) the town of 
Jarbidge, it would, at the very least, inhibit visitors from spending 
time in the area, due to diminished recreational opportunities and 
scenic values. In a worst case, the town of Jarbidge could be 
destroyed.
    Two issues are central to preventing a catastrophic fire: first, 
access is necessary so that fire suppression can be implemented while a 
fire is in its earliest stages. Secondly, land managers need access in 
order to properly reduce the fuel loads so that fires will be of lower 
intensity.
    In addition to the fire suppression issue, the listing of the bull 
trout has prevented the Nevada Division of Wildlife from stocking 
sportfish in Jarbidge River. As the fishing experience is diminished by 
the lack of stocking, fewer anglers will visit Jarbidge, which reduces 
the revenue of the towns businesses.
    According to an Environmental Assessment prepared by the Forest 
Service in 1998, there are six fewer campsites available in the canyon 
than there were before the 1995 flood that damaged South Canyon Road. 
This may not sound like much, until you realize that there are only 
some 23 campsites remaining in one of the premier outdoor recreation 
locations in the state of Nevada. The lack of campsites undoubtedly has 
reduced the number of camping visitors, and dispersal of Forest 
visitors is hampered by the lack of suitable campsites, resulting in 
overuse of the remaining facilities. Some of which include toilets 
which cannot be serviced and certainly create a greater environmental 
concern than some silt in the water. Furthermore, according to the 
Forest Services 1998 EA, ``Jarbidge Canyon is an important avenue for 
forest visitors to access the [Jarbidge] wilderness.''
    The Forest Service estimates that visitors to Forest System lands 
are increasing by 2 to 3 percent per year, but the Jarbidge area has 
experienced a reduction in facilities available for use by the visiting 
public. Fewer campers means fewer dollars spent in Jarbidge. In fact, 
Jack Creechley, owner of the Outdoor Inn, says that his business has 
fallen approximately 20 percent since the bull trout was listed. 
Another business, the Red Dog Saloon, has closed. Numbers of hunters 
have also declined, because the Nevada Division of Wildlife has reduced 
the numbers of deer tags issued, largely as a result of the drought we 
have been experiencing. While the reduction in hunters is not directly 
related to the listing of bull trout, it does become a part of the 
cumulative effects on the financial well-being of Jarbidge. Combined 
with decreasing numbers of fishermen, campers, and other 
recreationists, the impact is severe.
    The ``Economic Specialist's Report for Jarbidge Canyon Road 
Reconstruction Project,'' authored by Doug Clarke and Clare Josaitis of 
the Forest Service, dated February 25, 1997, states that road 
reconstruction would result in the greatest numbers of visitors to the 
Jarbidge area when compared with no road reconstruction. The report 
states, ``The local economy would do best under this alternative.'' 
Clarke and Josaitis (1997a) note that ``Many factors, both natural and 
human caused, have cumulatively affected the economy of the town of 
Jarbidge.'' Included in their list of factors are:
     LLack of opportunities for further development of the town 
because it is surrounded by National Forest system lands
     LThe remote location of the town and its distance from 
substantial population centers
     LThe popularity of designated wilderness and its proximity 
to the town
    Clarke and Josaitis, in their ``Recreation Specialists Report for 
Jarbidge Canyon Road Reconstruction Project,'' also dated February 25, 
1997, note that, ``Prior to the 1995 flood, the Jarbidge Canyon road 
ended at Snowslide Trailhead, which was the most popular portal to the 
Jarbidge Wilderness, among horseback riders, backpackers and 
dayhikers.'' They also state, ``It has been reported by Jarbidge 
business owners and observed in the field that visitor use in Jarbidge 
Canyon has dropped since the flood event. The over all decline in the 
number of people visiting the area is expected to continue under the 
current condition.'' Regarding the probable consequences of repairing 
the road, the report indicates, ``Restored vehicle access to four camp 
areas above Pine Creek, would: (1) reduce but not eliminate the 
competition for campsites, (2) limit the amount of pioneering of new 
sites, and (3) reduce the amount of unauthorized camping within the 
town of Jarbidge.'' Clarke and Josaitis (1997b) indicate that 
administration of the wilderness boundary would be most effective with 
the road repaired.
    For about ten years the County has been trying to comply with the 
Federal Clean Water Act by installing a filtration plant for the 
Jarbidge water supply, which has 100 connections. Because of a variety 
of bureaucratic complications, we are now looking at a one million 
dollar chlorination plant for a population of 60. Unfortunately, the 
bull trout is square in the middle of this, causing us to do additional 
scoping and analysis prior to gaining approval for this vital project.
    In addition to the potential for catastrophic fire, loss of 
recreation opportunities, and additional costs to the County and 
community of Jarbidge, another significant social impact of the listing 
of the Jarbidge River bull trout is the deterioration of the 
relationship between Elko County and its residents with the Forest 
Service. Prior to the listing, the Forest Service and Elko County had 
worked cooperatively, both on maintenance of South Canyon Road, and on 
repair of the road after the 1995 flood. With three years passing and 
nothing done to restore the road, Elko County had grown weary of what 
the Chief of the Forest Service, Dale Bosworth, terms ``analysis 
paralysis'' exhibited by the Forest Service, and in July 1998 the 
County took steps to repair the road, citing the threat of catastrophic 
fire as the reason.
    The bull trout had been considered for listing, but had been 
considered low on the Fish and Wildlife Services priority list. The 
Fish and Wildlife Service was sued by environmental groups, and as part 
of the settlement agreement reached in that lawsuit, published notice 
of intent to list various populations of bull trout under the ESA. This 
was done in June of 1998. In July of 1998, when Elko County authorized 
repair of South Canyon Road, citing the threat of catastrophic fire, 
the Jarbidge River population was emergency listed as endangered. The 
emergency listing alleged that Elko Countys road repair efforts would 
put the fish in immediate danger. The County was ordered by the Corps 
of Engineers to cease and desist repair efforts one day after they 
began. Nevada Division of Environmental Protection issued its own cease 
and desist order, which was later found to be unsubstantiated.
    Numerous previous studies conducted by the Forest Service had been 
favorable to road repair. With the emergency listing, everything 
changed. Without involving the County, the agency decided to close the 
road, which it did in November and December of 1998. Elko County 
Commissioners, and many Elko County residents, were understandably 
upset by this unilateral action. The cooperative association between 
the County and the Forest Service was badly damaged.
    The loss of a cooperative relationship between Elko County and the 
Forest Service has done no good for either party, and has had a ripple 
effect throughout the County. A direct economic impact of this damaged 
relationship is the cost, to both Elko County and the United States, of 
the mediation and court-sponsored settlement proceedings. A number of 
Elko County residents will also tell you that Elko Countys economic 
diversification efforts have been hampered by Elko County taking a 
stand against what we Commissioners perceived as a federal agency 
overstepping its authority.
    We realize that the Forest Service has nothing to do with the 
listing of the bull trout. We also realize that it is far better that 
the County and the Forest Service work together than to be at 
loggerheads. Elko County and the Forest Service have recently begun the 
lengthy process of restoring an air of cooperation, but it will not 
happen overnight.
    The assessed valuation of private property and improvements in 
Jarbidge is some $1,472,380. Our assessments are based on 35% of 
appraised value, so the total appraised value of private property in 
Jarbidge is $4,206,800. Prior to the listing, it was virtually 
impossible to acquire property in Jarbidge. Today, about 10% of the 
property is for sale, and there are essentially no buyers coming 
forward. One business has closed.
    These may not seem like severe impacts, and our situation certainly 
pales in comparison to the Klamath Basin. But this county, the 4th 
largest in the continental United States, with only about 50,000 
residents, has about 72% of its area controlled by the federal 
government. Sales and property taxes are vital, and when anything 
adversely impacts our tax revenues, the entire County feels it. 
Clearly, the impacts of actions taken by federal agencies are felt 
throughout our county. The listing of the bull trout, and its 
subsequent effects on recreation, the town of Jarbidge, and our 
relationship with the Forest Service, has been detrimental to our well-
being.
    The bull trout is a survivor. It is a glacial relic and there is no 
glacier for survival. It has lasted through floods, intensive grazing 
(nearly 400,000 sheep at the turn of the century), logging (stories 
tell of the stream being choked with sawdust for lumber for the mines), 
mining (which included the dumping of toxic chemicals into the stream), 
and sportsfishing. It coexisted with South Canyon Road for most of a 
century. Therefore, I conclude my prepared remarks with a request that 
you use every tool available to measure whether or not the bull trout 
is truly threatened by our road, or is, as we believe, doing just as 
well as it has for a very long time.
    Thank you for the opportunity to testify. I will be happy to answer 
any questions you wish to ask.
References Cited
Clarke, D., and Josaitis, C., 1997(a), Economic Specialists Report for 
        Jarbidge Canyon Road Reconstruction Project, USDA Forest 
        Service, 8 pp.
Clarke, D., and Josaitis, C., 1997(b), Recreation Specialists Report 
        for Jarbidge Canyon Road Reconstruction Project, USDA Forest 
        Service, 12 pp.
General Accounting Office, 1999, Western National Forests A Cohesive 
        Strategy is Needed to Address Catastrophic Wildfire Threats, 
        report GAO/RCED-99-65, 60 pp.
USDA Forest Service, 1998, Jarbidge River Environmental Assessment for 
        Access and Restoration Between Pine Creek Campground and the 
        Jarbidge Wilderness, Humboldt Toiyabe National Forest, June, 
        1998, 52 pp. plus appendices.
                                 ______
                                 
    Mr. Gibbons. You did that in less than 5 minutes. Very 
good.
    John Carpenter, welcome.

   STATEMENT OF JOHN C. CARPENTER, ASSEMBLYMAN, NEVADA STATE 
                            ASSEMBLY

    Mr. Carpenter. Thank you, Jim.
    I really appreciate you being here today, and I think it 
shows the great commitment that you have to this area to come 
and listen to what we have to say.
    I don't know if it would be proper or not, but I would like 
to enter this into the record if I could. It come out of last 
night's Free Press. I think two very good editorials that might 
lend some credence to what we're talking about here today.
    Mr. Gibbons. Without objection it will be entered into the 
record.
    [The information has been retained in the Committee's 
official files.]
    Mr. Carpenter. Thank you.
    As I said before, thank you very much for holding this 
hearing. We're most appreciative of your efforts to reform the 
Endangered Species Act. I believe the hearing today will give 
more insight into this contentious and important subject and 
the need for reform.
    It is well to start with a quote from the Federal Register 
when the bull trout was listed as threatened. ``the Jarbidge 
River population segment, composed of a single subpopulation 
with few individuals, is threatened by habitat, degradation 
from past and ongoing land management activities such as road 
construction and maintenance, mining and grazing, interaction 
with nonnative fishes, and incidental angler harvest. We based 
this final determination on the best available science and 
commercial information including current data and new 
information received during the comment period.''
    And I'd like to say I also attended their hearing at 
Jackpot when they were discussing this, and the story has not 
changed since that hearing.
    My analysis of the situation at the time of the listing is 
that road construction and maintenance was minimal. There had 
been no mining or grazing in the area of South Canyon for many 
years. The same situation exists today. The only interaction 
the bull trout have with nonnative fish are when they swim by 
each other.
    Angler harvest has never been a problem. Who would want to 
catch a bull trout? It's going to cost you 10,000 bucks. 
According to people who were unlucky enough to catch them years 
ago, they were not a gourmet meal and gave little or no 
resistance when caught.
    Their assertion that the listing was based on the best 
scientific and commercial information available is poppycock. 
The truth is they ignored all scientific information, 
especially the scientific information provided by NDOW.
    I believe that Congress has required that regulations be 
written in plain English. The final rule listing of bull trout 
as threatened is not written in plain English. It just as well 
be written in a foreign language. It is so complicated and 
disjointed.
    Section 4 of the Act requires the Fish and Wildlife Service 
to make a determination to list solely on the best scientific 
and commercial data available. A reading of the listing 
indicates the listing was political and not scientific. The 
listing was for the self-gratification of the Fish and Wildlife 
Service, a payoff to the Greenies, and appeasement of a 
misinformed Federal judge.
    The bull trout is a prehistoric fish that needs very cold 
water. The fish is a remnant of the glacial period that ended 
several thousand years ago. Their population will continue to 
decline naturally until they are eventually extinct. This 
extinction is a natural process and not caused by human threat.
    The fish are a threat to themselves as they are very 
carnivorous and eat each other. Just as the Endangered Species 
Act would not have prevented the extinction of the dinosaur, 
the Endangered Species Act cannot save the bull trout. The 
Endangered Species Act and listing the bull trout as threatened 
only prevents humans from enjoying the South Canyon. It limits 
their camping and fishing experience as well as increasing the 
fire danger to the canyon. Young families, the elderly and 
handicapped are even more affected by the listing and the 
restrictions that are in place.
    Fish and Wildlife Service is supposed to make a 
determination of the suitability of the listing based upon five 
factors as stipulated in the Act. I submit to you that their 
narrative describing the listing criteria is misleading, filled 
with untruths and in many cases down right lies. The fish is 
not threatened, the Fish and Wildlife Service has perpetuated 
fraud upon the citizens of Jarbidge and Elko County, and I 
think the evidence is overwhelming that the fish must be 
delisted, and I think that we saw that in the presentation 
here. Thank you very much.
    [The prepared statement of Mr. Carpenter follows:]

Statement of Hon. John C. Carpenter, Assemblymen, Nevada State Assembly

    Gentlemen,
    Thank you very much for holding this hearing. We are most 
appreciative of your efforts to reform the Endangered Species Act. I 
believe the hearing today will give more insight into this contentious 
and important subject and the need for reform.
    It is well to start with a quote from the Federal Register when the 
bull trout was listed as threatened. ``The Jarbidge River population 
segment, composed of a single subpopulation with few individuals, is 
threatened by habitat degradation from past and ongoing land management 
activities such as road construction and maintenance, mining, and 
grazing; interactions with non-native fishes; and incidental angler 
harvest. We based this final determination on the best available 
scientific and commercial information including current data and new 
information received during the comment period''.
    My analysis of the situation at the time of the listing is that 
road construction and maintenance was minimal. There had been no mining 
or grazing in the area of South Canyon for many years with the same 
situation existing today. The only interaction the bull trout have with 
non-native fish, are when they swim by each other. Angler harvest has 
never been a problem. Who would want to catch a bull trout? According 
to people who were unlucky enough to catch them years ago, they were 
not a gourmet meal and give little or no resistance when caught.
    Their assertion that the listing was based on best scientific and 
commercial information available is poppycock. The truth is they 
ignored all scientific information especially the scientific 
information provided by N.D.O.W.
    I believe Congress has required that regulations be written in 
plain English. The final rule listing the bull trout as threatened is 
not written in plain English. It just as well be written in a foreign 
language. It is so complicated and disjointed.
    Section 4 of the Act requires the Fish and Wildlife Service to make 
a determination to list solely on the best scientific and commercial 
data available. A reading of the listing indicates the listing was 
political and not scientific. The listing was for the self-
gratification of the Fish and Wildlife Service, a pay off to the 
Greenies and the appeasement of a misinformed Federal Judge.
    The bull trout is a prehistoric fish that needs very cold water. 
The fish is a remnant of the glacial period that ended several 
thousands years ago. Their population will continue to decline 
naturally until they are eventually extinct. This extinction is a 
natural process and not caused by human threat.
    The fish are a threat to themselves as they are very carnivorous 
and eat each other. Just as the Endangered Species Act would have not 
prevented the extinction of the dinosaur, the Endangered Species Act 
cannot save the bull trout. The Endangered Species Act and the listing 
of the bull trout as threatened, only prevents humans from enjoying the 
South Canyon. It limits their camping and fishing experience as well as 
increasing the fire danger to the Canyon. Young families, the elderly, 
and handicapped are even more affected by the listing and restrictions 
that are in place.
    The Fish and Wildlife Service is supposed to make a determination 
of the suitability of the listing based up five factors as stipulated 
in the Act. I submit to you that the narrative describing the listing 
criteria is misleading, filled with untruths and in many cases 
downright lies. The fish is not threatened, the Fish and Wildlife 
Service has perpetuated fraud upon the citizens of Jarbidge and Elko 
County. The evidence is over-whelming; the fish must be de-listed.
                                 ______
                                 
    Mr. Gibbons. I'm truly impressed. Both of you did that in 
less than 5 minutes. Very good of you, and we will submit your 
full written testimony for the record.
    Let me take a few moments here to ask a couple of questions 
of each of you, and I want to start with the concept that, 
John, you just mentioned the fire danger up there. I know that 
access in order to be able not only to improve the quality and 
the condition of the forest is important up there, but access 
to get up there if there is ever a fire is important as well.
    As you know, Congress has recently been allocating 
additional funding to state and Federal agencies for the 
purpose of getting on top of our wildfires. Can you state what 
impact the bull trout listing has had on your planning and your 
consideration for being able to fight a forest fire if one 
should occur up there?
    Mr. Carpenter. Thank you. I think that that's a very good 
point in that before we had a road there that was completely 
passable to most vehicles, even the largest trucks that the 
Forest Service and our NDEP has. But now about a mile and-a-
half of that road you cannot get up there, and we know that 
when the lightning strike comes, that if you can get up there 
and put that fire out in a short period of time, the chances of 
it mushrooming into a real holocaust is very much limited. So 
we need that access.
    And I'm going to talk about the road here, we need that 
access of the road to get up there to be able to put those 
fires out.
    Now during the last few years citizens have went up there 
and repaired quite a stretch of that road. Even last Saturday, 
why, we went up there and we were able to fix one area where 
the new truck that the Forest Service had given to Nevada 
Division of Forestry was able to get up the canyon another few 
hundred more feet.
    But it all helps if we can put those fires out early so 
that they don't mushroom into things that we have going on in 
California now. Because a fire would--it would not only destroy 
Jarbidge but we probably wouldn't have to worry about the bull 
trout any more because there wouldn't be any habitat left. So 
it's critical that we're able to fix that road for fire 
protection.
    Mr. Gibbons. Brad, have you in your experience as a County 
Commissioner had any consideration given to the effect of the 
cost of county operations due to listings like the bull trout?
    Mr. Roberts. Well, we have been--like I said, there's been 
a reduction of business in the community. There were 29 
campsites. There's 23 now because six are unusable. So it's 
reduced the ability for campers to find sites. It's made it 
more difficult for the Forest Service to manage in that they 
have what they call road campsites that are in undesirable 
areas.
    It's not just the fire issue. People want to go up there 
and enjoy the experience of the wilderness, at least the 
wilderness trailhead. And you also have issues such as personal 
injury or so forth in those areas. And if you have an accident 
or an illness or something where people are unable to get 
there, they are going to have to virtually pack them out on a 
gurney for a mile or so before they can get to a vehicle. So it 
has its other impacts as well.
    The road is virtually--I know we weren't to talk about the 
road, but they are intermixed between the listing of the fish 
and the road are actually one issue, I believe, because the 
fish wasn't listed for the benefit of the fish. It was listed 
for the benefit of the road not to be rebuilt.
    And it's just made it very difficult for the 
recreationalist to use it and emergency personnel as well.
    Mr. Gibbons. Let me go back if I could, Brad, and talk 
about the new chlorination plant that you have got planned for 
Jarbidge up there. You said it was going to cost approximately 
$1 million.
    Mr. Roberts. Correct.
    Mr. Gibbons. How are you going to distribute the cost with 
only, what did you say, 20 or so connections?
    Mr. Roberts. There is 100 possible connections for the town 
of Jarbidge.
    Mr. Gibbons. 100. How do you distribute the cost of that 
plant and the operational cost to the 100 users?
    Mr. Roberts. The water rights are going to go up 
dramatically for those users in that community. And the 
interesting part, because we have to depreciate out that value 
so that at some point in time that plant needs replaced or 
maintenance or so forth, that there will be monies available to 
do that in the future.
    The initial work outside of the salaries and time expended 
by the county in getting to this plant or designing this plant 
and getting the monies and so forth, most of the money is grant 
money. But it's a one-time shot. If it needs maintenance, the 
town is going to have to pay for it.
    And the bull trout listing has--we were ready to start work 
this summer. Now we're doing additional scoping because of the 
bull trout.
    Mr. Gibbons. So it's added to the cost of the county.
    Mr. Roberts. Added to the cost. And the interesting part is 
it's a very, very, very rare occasion that we find any 
contaminants in the Jarbidge water system at all. But under 
Federal Clean Water Act, we have to make sure the tourists 
don't get in trouble.
    Mr. Gibbons. Do you have an estimate of what the individual 
water user will be charged, what will be the fee, the average 
fee that you can see down the road for this?
    Mr. Roberts. Well, I know some of the residents are here, 
and they are sitting down so I'll tell them. I would not be out 
of line, I don't believe, if I said they were going to pay $150 
a month for water.
    Mr. Gibbons. What does the average Elko County or city of 
Elko resident pay for water; do you know?
    Mr. Roberts. You know, I don't know. Maybe John knows. He 
is a resident.
    Mr. Carpenter. I think that we pay for water service I 
think $17 a month.
    Mr. Gibbons. So if you live in the city you are paying $17 
a month, if you live in Jarbidge you are going to pay 150, up 
to 150?
    Mr. Roberts. Yes.
    Mr. Gibbons. If it works out that way.
    Mr. Roberts. When that plant is on line and the additional 
plumbing that goes with it.
    Mr. Gibbons. To a lot of people up there, I'm sure that 
that is going to be an awfully difficult burden to bear, 
especially those that are on fixed incomes, been there for a 
while, senior citizens, et cetera.
    Mr. Carpenter. Jim, I would like to if I can comment a 
little bit on the fishery situation up there. It used to be 
that there was quite a few fishing licenses sold in the town of 
Jarbidge because the NDOW stocked the river, and especially the 
kids would really like to come up there, and that was their 
first fishing experience for many of them. And the trout that 
were planted there, why, they were easily--some of them were 
easy to catch. But you know, if you're a first-time fisherman 
and you catch a fish, whether it is easy or not, you get hooked 
on it so you keep fishing.
    But now we don't have that. The NDOW cannot stock that 
stream. To me, that's a major act of the endangered species 
that prevents NDOW from stocking that stream.
    And so I really think that that is really doing a great 
disservice, not only to the people here in Elko County but many 
people come or used to come to Jarbidge for the fishing 
experience, and they just don't do it any more. So you know, 
it's kind of a snowball effect throughout the whole county when 
NDOW is prevented from doing that.
    Mr. Gibbons. I would imagine in addition to the fishing, 
the camping experience, access to the wilderness area, have all 
been impacted by the fact that the bull trout was listed up 
there as well. The economic part that you talked about earlier, 
businesses that are suffering up there because of this, John 
and Brad.
    Mr. Carpenter. You know that Caesar Salicchi, our County 
Recorder--or our County Treasurer--he reiterated to me many 
times, and Caesar is disabled from polio years ago, but going 
up the South Canyon was one of the enjoyments that he looked 
forward to every summer, and now he's prevented from doing 
that.
    And if you go up that canyon, really up to the first 
campground there, it's just kind of a--the scenery remains the 
same. But if you can get up there another mile or half a mile, 
it opens up an entirely new vista that I think that elderly and 
handicapped and young families ought to be able to enjoy, which 
at the present time they cannot. So I think that's another real 
detriment to what has happened in the use of that canyon.
    Mr. Gibbons. Well, I don't have any more questions for each 
of you. If there is something that you want to add, a final 
comment you'd like to make, I'll give you that opportunity now 
if you want to do so.
    Mr. Carpenter. Well, I just--Congressman, I think that 
there is no reason to have the fish listed. The fish is going 
to do great on the habitat that's there. I think that if there 
would be something that we could really do, and I think you 
will hear testimony today that NDOW hasn't come up with a plan 
because they don't know what else they can do other than what 
they are doing now rather than close that whole canyon. And I 
just don't think that that's an option, you know, because the 
fish is up there in the wilderness area, and that's where it's 
doing as well as it can, and certainly there's no impact up 
there in the wilderness, and I just think that whatever you can 
do to delist the bull trout, we will be eternally grateful 
because it is something that is done that should not be there.
    And you know, we have the Lahontan cutthroat trout in this 
county, and we're doing a lot of things to hope it will be 
delisted some day. But you know, we're fencing streams and 
modifying grazing and doing all those kind of things to get the 
Lahontan delisted. But there's really nothing we can do for the 
bull trout because he's just there and he's doing his thing, 
and we can't close that canyon down. That is not going to 
happen. So we need to get the trout delisted.
    Mr. Gibbons. Brad?
    Mr. Roberts. I would have to agree with John. I think the 
editorial in last night's paper, the guest editorial from a 
native resident from Jarbidge really hit all the key points. 
And you know, the fish has been a survivor. If we truly are 
facing global warming, he ain't going to make it because he has 
to have glacial cold water to survive, and all the trees in the 
world are not going to make that cold enough for him.
    As being a survivor, at the turn of the century, there's as 
many as 400,000 head of sheep running in that country. There is 
none now. The streams, there is some records telling of the 
Jarbidge River being clogged with sawdust from the sawmills up 
there, cutting the timber for the mines, and there's none of 
that now. And there are stories of the miners dumping chemicals 
in the river of toxic levels. There is none of that now.
    And the fish is still there. But his worst demise is 
himself. There are other fish in the stream, he breeds with 
them, and those offspring are, and you may hear this from NDOW, 
but they are infertile and they eat their young. So how are you 
going to help a fish that there ain't any kind of critter that 
does that?
    So anything you can do to bring this fish off the list 
would certainly help the overall economy and the recreational 
opportunities for all residents and tourists alike in the 
Jarbidge area.
    Mr. Gibbons. Well, I want to thank both of you specifically 
because when I came here, I made my first, very first opening 
statement the farther you get from Washington, D.C., the more 
common sense you can have in a discussion, and both of you have 
proved that point exactly. You came here with good common sense 
remarks, not a lot of emotion, based on facts, presented us 
with information that we need to hear and we need to have on 
our record that will help us move forward with this hearing 
that will help us move forward with the legislation as well. I 
wanted to thank each of you for being here today, and with that 
I'll excuse you and call up our second panel.
    Our second panel is going to be Mr. Robert Williams, Field 
Supervisor for the Nevada State Office of the U.S. Fish and 
Wildlife Service under the Department of Interior, and Mr. 
Robert Vaught, Forest Supervisor, Humboldt-Toiyabe National 
Forest, U.S. Forest Service, Department of Agriculture. I have 
to be careful because if I say Bob, I have to know which Bob 
I'm talking to.
    Mr. Williams. Just look at us and we'll know which one.
    Mr. Gibbons. I'll put Mr. instead of Bob.
    I'd like to welcome both of you to this hearing. Both of 
you have been in this room on this issue before at a hearing, 
and appreciate your presence again today.
    I will begin with Mr. Williams, U.S. Fish and Wildlife 
Service. If you can, summarize your testimony. We're happy to 
put your full and complete written testimony into the record. 
We will begin with you. Welcome, Mr. Williams. The floor is 
yours.

 STATEMENT OF ROBERT WILLIAMS, FIELD SUPERVISOR, U.S. FISH AND 
                        WILDLIFE SERVICE

    Mr. Williams. Mr. Chairman, thank you for the opportunity 
to meet again and to discuss the listing of the Jarbidge River 
population bull trout. As you know, my name is Bob Williams. I 
am the Field Supervisor for the Fish and Wildlife Service here 
in the State of Nevada.
    You have requested that the Service address three questions 
specifically: Was the listing of the Jarbidge bull trout 
population based solely on the best available science and 
commercial data? how does the bull trout listing meet the 
Endangered Species Act criteria? and what information would we 
need to delist the species?
    I have submitted my testimony for the record.
    For the past several months there's been much discussion 
about the use of good science in the Service decisionmaking. 
Given the impact that our resource management decisions can 
have on communities and individuals, species conservation 
decisions must be based on the best available science and 
commercial data.
    Our data and scientific information must meet the highest 
possible ethical and professional standards. This is something 
I have taken very seriously in my 26-year career with the 
Department of Interior and working for the Service.
    Assistant Secretary Manson testified in March before this 
Committee addressing the issue of science as it relates to the 
Fish and Wildlife Service. I think his comments are worth 
restating here for the record.
    He said that first there is no monopoly on good science. 
The Department must make or must take a broad net, or cast a 
broad net--excuse me--to take advantage of independent 
scientific expertise. We believe that this will ensure that our 
decisions are based on the best available science, not just on 
one group's interpretation of the science.
    We must also acknowledge that science is not exact and that 
even experts will differ in their opinions. Where there are 
differing interpretations of the science behind our decisions, 
we must provide opportunity both by the Department scientists 
and stakeholders to air their differences and work through 
them.
    The Service has been repeatedly accused of listing the bull 
trout as a way to stop the South Canyon Road. This is just not 
the case. And I think the chronology of events that you 
outlined earlier indicate that.
    The bull trout listing actually began back in 1985. And as 
you know, and as you indicated, much of the history of the 
listing of the bull trout was as a result of court ordered 
decisions.
    The Service believed back in the early 1990's based on the 
population survey data and information that we had at that 
time, both real data and empirical data on the species and the 
habitat, that the bull trout was warranted for listing but 
precluded from listing because of other higher priorities. In 
1992, the Service received a petition to list the trout as 
endangered throughout its range.
    From 1992 to 1997, and after numerous motions, the Service 
did list the five distinct populations of bull trout in 1997 
and for the Jarbidge 1998. While the lawsuits may have pushed 
the listing, the decisions to list the species, in our opinion, 
was based on the best available science collected across the 
range of the species including the information that we had on 
the Jarbidge for this particular listing in the Jarbidge EPS.
    As it relates to your second question, I would like to 
briefly go through the five listing factors, and some of the 
information that we presented. A more detailed again outline is 
in my testimony. As you indicated, the first factor as it 
relates to listing is the present threatened destruction, 
modification or curtailment of habitat or range. We believed 
based on the information that past livestock, mining and other 
factors affecting the functionality of the stream significantly 
was affecting the current population of bull trout. Road 
construction and maintenance practices further evidenced the 
degradation of the stream and the habitat.
    The second factor is overutilization for commercial, 
recreation, scientific or educational purposes. There was an 
angling limit of up to 10 bull trout per day until the species 
was listed in 1998. We believe that was significantly affecting 
the species.
    Even with the catch and release program now in place, and 
with angler difficulty in identifying species, bull trout are 
likely still being taken in the system. A recent bull trout 
protein incident was reported in Idaho in the watershed 
indicating the taking continues today.
    The third factor is disease and predation, which as you 
indicated is not a factor, or at least we don't believe it's a 
factor.
    The fourth factor is inadequate protection mechanisms, and 
again, we believe that the watershed is relatively remote, 
access is difficult for much of the year, and there's been 
damaging activities occurring that have gone unchecked, such as 
road construction and maintenance, river channelization, 
riparian vegetation removal, firewood collection, instream 
woody debris removal, and unsustainable grazing.
    The last factor is basically human caused or other human 
caused related activities. And one of the things that we 
identified in the listing was the nonnative species.
    In 1998, we published a proposed rule to list the bull 
trout, again, using all the available information that we had 
at that time.
    We notified the public of the proposal through the media 
and sent out over 800 letters to individuals. We held public 
meetings for the rule for 4 months. We received 23 comments 
pertaining to the population. We solicited formal, scientific, 
peer review, a process within our listing policy. We had one 
peer reviewer who did come back and basically stated that 
listing was the conservative and appropriate decision.
    The last question that you asked of us was related to 
delisting criteria. The specific delisting criteria we have not 
been able to identify or haven't identified yet, but we are 
early in the process. We have identified a bull trout recovery 
team for this particular area and that we are working with the 
Nevada Division of Wildlife, the Idaho Game and Fish, Duck 
Valley Paiute-Shoshone Tribes, BLM, the Forest Service and 
ourselves, and the bull trout team has met for the first time 
in December and is continuing to develop a plan.
    We hope to have a plan sometime by this fall. December I 
think is the target date.
    Delisting will occur when the Jarbidge River population 
meets the recovery criteria that will ensure the species and 
its habitat are protected and can sustain itself. Consistent 
population monitoring using statistical sound techniques will 
be critical to determine the recovery criteria and when 
delisting can occur.
    Mr. Chairman, I appreciate your time, and this concludes my 
testimony.
    [The prepared statement of Mr. Williams follows:]

  Statement of Robert D. Williams, Field Supervisor, Nevada Fish and 
  Wildlife Office, U.S. Fish and Wildlife Service, Department of the 
                                Interior

    Mr. Chairman, thank you for the opportunity to appear before you 
today to discuss the listing of the Jarbidge River population of bull 
trout. My name is Bob Williams, Field Supervisor for the U.S. Fish and 
Wildlife Service's (Service) Nevada Fish and Wildlife Office in Reno.
    For the past several months, there has been much discussion about 
the use of good science in the Service's decision-making. Given the 
impact that our resource management decisions can have on communities 
and individuals, the species conservation decisions we make must be 
based on the best available science. Our data and scientific 
information must meet the highest possible ethical and professional 
standards. This is something I have taken very seriously throughout my 
26 year career, and I know that FWS Director Steve Williams continues 
to improve the use of sound science within the Fish and Wildlife 
Service.
    Craig Manson, Assistant Secretary for Fish and Wildlife and Parks, 
testified in March 2002 before this Committee about issues related to 
the use of good science by the Service as it carries out its 
responsibilities. His comments are worth reiterating here: there is no 
monopoly on good science. The Department must cast a broad net to take 
advantage of independent scientific expertise. We believe that this 
will ensure that our decisions are based on the best available science, 
not just one group's, or another's, interpretation of the science. We 
must also acknowledge that science is not exact, and that even expert 
opinions can differ. Where there are differing interpretations of the 
science behind our decisions, we must provide opportunities for both 
Department scientists and stakeholders to air those differences and, 
wherever possible, resolve them. It must be an open process.
    In your invitation to appear today, you asked us to ponder several 
questions. Was the listing of the Jarbidge River bull trout population 
based solely on the best available scientific and commercial data? How 
does the Jarbidge bull trout listing meet (or not meet) Endangered 
Species Act listing criteria? And, what information would be needed to 
delist? I would like to provide the Service's response to those 
questions.
Bull trout listing: science
    We believe that the addition of the Jarbidge River bull trout 
population to the Endangered Species list was based solely on the best 
available scientific and commercial data. Section 4(b) of the 
Endangered Species Act of 1973, as amended (ESA), requires that 
determinations of endangered and threatened species be based solely on 
the best scientific and commercial data available after conducting a 
review of the status of the species and after taking into account 
efforts by states or foreign countries to protect the species. The ESA 
also requires that consideration be given to listing species which have 
been identified as in danger of extinction, or likely to become so 
within the foreseeable future, by any state or foreign country's 
conservation agency.
    In 1985, the Service first included bull trout in a public Notice 
of Review (50 Federal Register 37958) identifying possible candidates 
for future listings under the ESA. These candidate species were 
typically added to the Service's public notices based upon concerns 
expressed by biologists from State and Federal agencies, universities, 
and other knowledgeable individuals from all over the country, and data 
in local Service office files. The Service maintained bull trout on a 
list of potential candidate species until 1997.
    During this time period, the Service was also petitioned to list 
the bull trout as endangered. The Service's findings in response to the 
petition initiated a long series of legal actions and court decisions. 
As a result of a court order, the Service proposed to list the Klamath 
and Columbia river populations of bull trout on June 13, 1997 (62 
Federal Register 32268), and the Coastal-Puget Sound, Jarbidge River, 
and St. Mary-Belly River populations on June 10, 1998 (63 Federal 
Register 31693).
    The amount of research, surveys, and reports on bull trout 
increased greatly during the 1990s, most likely due to all the bull 
trout-related legal actions and the increasing potential for a listing 
of the species. For example in 1990, the Nevada Division of Wildlife 
(NDOW) gathered historical agency survey data and proposed future 
species management activities in a draft bull trout management plan 
report (Federal Aid Project No. F-20-26, Job No. 207.4). The Service 
also funded NDOW to perform a survey in 1993 to gather additional data 
on the Jarbidge River bull trout population, which was documented in a 
1994 NDOW report. In 1999, NDOW organized a new Jarbidge River bull 
trout survey.
    Using data from the 1990 and 1994 NDOW reports and other scientific 
information available at the time, including the 1999 survey data, the 
Service determined that the Jarbidge River population was small, 
isolated, and vulnerable to extinction. We also identified numerous 
potential threats to the population including habitat degradation from 
past and ongoing activities including mining, road construction and 
maintenance, grazing, angling, competition with stocked fish, and 
unpredictable natural events such as the debris torrents that occurred 
in the 1995 flood in the Jarbidge River Canyon. Based on these data, 
the Service listed the species as threatened on April 8, 1999 (64 
Federal Register 17111).
Bull trout listing: listing criteria and threats to the species
    Section 4(a) of the ESA sets forth the five factors upon which 
endangered or threatened status is conferred. The five factors are: 1) 
the present or threatened destruction, modification, or curtailment of 
its habitat or range; 2) overutilization for commercial, recreational, 
scientific, or educational purposes; 3) disease and predation; 4) the 
inadequacy of existing regulatory mechanisms; and 5) other natural or 
manmade factors affecting its continued existence. Based on the best 
available information, the Service determined that the Jarbidge River 
bull trout listing was warranted given the current threats to its 
population.
    I will now review the application of these factors to the Jarbidge 
River bull trout population, which were discussed in detail in the 
April 1999 Federal Register listing decision.
1) The present or threatened destruction, modification, or curtailment 
        of its habitat or range.
    Bull trout historically occurred throughout much of the Snake River 
Basin. In addition to more subtle habitat changes such as increasing 
stream temperatures and sedimentation, genetic connectivity among bull 
trout populations in the basin was gradually lost due to dam 
construction, water diversions for irrigation, and animal grazing. 
Water quality concerns were also associated with streamside mine 
tailings, piles, and mine shaft drainage. The remaining Jarbidge River 
population is now isolated and located over 150 river miles from other 
bull trout populations. Due to its current restricted distribution and 
low numbers of fish, the Jarbidge River population is susceptible to a 
variety of threats.
2) Overutilization for commercial, recreational, scientific, or 
        educational purposes.
    The Jarbidge River system has been heavily fished, dating back to 
the 1930s. Decades of non-native trout stocking by both Idaho and 
Nevada encouraged increased angling pressure in bull trout habitat. 
Idaho stopped stocking trout in 1990, and Nevada's last stocking was in 
1998. A 1990 NDOW report specifically stated concerns for the bull 
trout population because of angling pressure and the removal of larger 
bull trout (6-12 inches) from the system, possibly before they were old 
enough to reproduce for the first time. Angler harvest was considered 
by NDOW to be a likely ``primary factor in the low densities of bull 
trout in the East and West forks of the Jarbidge River.''
    Harvest is considered a threat to both resident and migratory forms 
of bull trout. Migratory fish are at greater risk because of their 
lower numbers, desirable larger size and higher visibility to anglers. 
Anglers are known to have difficulty identifying bull trout, so 
unintentional harvest of bull trout is likely still occurring despite 
angler education efforts. Nevada bull trout fishing regulations were 
changed in 1998, and it is now a catch and release program. Limits on 
other trout (native redbands and residual stocked rainbows) and 
mountain whitefish are now 5 and 10 fish, respectively, which still 
allows for substantial fishing pressure and potential repeated bull 
trout captures. To date, bull trout monitoring has not been conducted 
long enough to allow for detection of improvements in the population. 
Idaho established a two trout limit for the Jarbidge River watershed in 
1992, and prohibited harvest of bull trout entirely in 1995.
3) Disease and predation.
    Disease and predation have not been documented as factors affecting 
the survival of bull trout in the Jarbidge River watershed.
4) The inadequacy of existing regulatory mechanisms.
    Existing regulatory mechanisms protecting streams, stream channels, 
riparian areas, and floodplains are either inadequate to protect bull 
trout habitat or are not sufficiently enforced. Activities that damage 
habitat are frequently undetected because the Jarbidge River watershed 
is relatively remote and access is difficult for much of the year. 
Examples of such activities might include road construction and 
maintenance practices, river channelization, riparian vegetation 
removal, firewood collection, stream bank stabilization, instream large 
woody debris removal, and unsustainable grazing practices, among 
others.
5) Other natural or manmade factors affecting its continued existence.
    Natural and manmade factors affecting the continued existence of 
bull trout include introductions of non-native species (catchable-size 
rainbow trout) that compete with and may prey upon bull trout, drought, 
and debris torrents (such as the 1995 event on the West Fork of the 
Jarbidge River).
    These five listing factors were discussed at length in our proposed 
rule to list the bull trout as an endangered species. The Service 
requested input on these factors from the public, agencies, scientific 
community, industry, and other interested parties. We notified over 800 
individuals about our proposed rule, including private citizens; State 
and Federal agencies; Federal, State, county and city elected 
officials; and local media. We also published announcements of the 
proposed rule in local newspapers, including the Elko Daily Free Press 
here in Nevada. The Service held four public hearings, including one in 
Jackpot, Nevada, during July 1998. The public comment period was open 
for 4 months. We received 52 public comments on the proposed rule, and 
of these, 23 pertained to the Jarbidge River population. The majority 
of the comments supported the listing, with seven comments opposing 
listing. In the Service's view, few comments provided meaningful new 
data to consider with respect to the threats discussed in the proposed 
listing decision.
    During the public comment period, we also solicited formal 
scientific peer review of our proposed rule in accordance with our 
Interagency Cooperative Policy for Peer Review in Endangered Species 
Act Activities (July 1, 1994; 59 FR 34270). We solicited six 
individuals with expertise in bull trout biology and salmonid ecology 
whose affiliations included academia and Federal, State, and Canadian 
Provincial agencies to review the proposed rule within the public 
comment period. Only one of the six peer reviewers responded to our 
official request. That reviewer stated that listing was the 
``conservative and appropriate decision.'' Another recognized bull 
trout expert from academia (not an official peer reviewer) submitted 
public comments strongly supporting the Jarbidge River bull trout 
listing.
    As part of the administrative record we provided the results of an 
independent peer review of Jarbidge River bull trout data and 
population status presented in the 1999 NDOW Report. The peer review 
was performed by two fisheries scientists selected by the Western 
Division of the American Fisheries Society (AFS). The AFS peer review 
(reviewers remained anonymous to ensure impartiality) substantially 
supported the decision to list the species. The conclusion of our 
official peer review of the listing decision and the AFS peer review of 
the NDOW report were consistent with our decision to move forward with 
the listing.
    In July 1998, with the Jarbidge River bull trout already proposed 
for listing, Elko County began reconstructing the South Canyon Road in 
the midst of known bull trout habitat. Potential direct and indirect 
impacts in the West Fork of the Jarbidge River included the harm and 
harassment of juvenile and adult bull trout; disruption or prevention 
of bull trout migration and spawning; alteration of stream flow and 
temperature; loss of riparian vegetation; and increased sediment 
transport. This combination of activities had the potential to affect 
the future survival and recovery of the Jarbidge River population. For 
these reasons, the Service temporarily emergency listed the Jarbidge 
River population as endangered on August 11, 1998 (63 Federal Register 
42757). The emergency listing lasted for 240 days.
    On April 8, 1999, we published a final rule listing the Jarbidge 
River population as threatened, as we had originally proposed (64 
Federal Register 17110). Listing the bull trout as threatened rather 
than endangered was possible due to habitat restoration in the South 
Canyon Road area and other beneficial projects that were implemented by 
Federal and State agencies, including habitat management improvements 
and the elimination of rainbow trout stocking in Nevada.
    Along with conferring the threatened status on the bull trout, the 
final listing rule included a ``special rule'', under section 4(d) of 
the ESA. The rule allowed for incidental take of bull trout in the 
Jarbidge River population for educational, conservation or scientific 
purposes, as well as by recreational fishing for 2 years (until April 
9, 2001). To extend the special rule beyond the original 2 years, the 
4(d) rule required the States of Idaho and Nevada to develop a 
conservation and management plan for bull trout in the Jarbidge River. 
The extension would provide continued legal angling opportunities for 
the public in the Jarbidge River. The Service has been advised by NDOW 
that the management plan is close to completion.
Bull trout: delisting
    At present, the requirements for delisting have not been 
identified. Several years ago a Bull Trout Recovery Team was assembled. 
Representatives from the States of Idaho, Montana, Nevada, Oregon and 
Washington, Upper Columbia River United Tribes, and Service offices in 
five states were asked to participate. This recovery oversight team has 
prepared a range-wide draft bull trout recovery plan which will be 
published for public review this fall (November 2002).
    Recovery and delisting of each of the five listed bull trout 
populations can occur independent of each other. A Recovery Unit Team 
has been established to develop a recovery plan specifically for the 
Jarbidge River population and to identify specific delisting criteria. 
Similar to the larger recovery oversight team, this local recovery team 
includes representatives from the States (including NDOW and Idaho 
Department of Fish and Game); Tribes (Duck Valley Paiute-Shoshone 
Tribes' Habitat, Parks, Fish and Game Division); and Federal agencies 
(Bureau of Land Management, U.S. Forest Service , and the Service). The 
Team met for the first time in December 2001 and should have a draft 
recovery plan by the end of this year (December 2002).
    This local team is tasked with defining bull trout recovery for the 
Jarbidge River including specific objectives and recovery criteria for 
delisting, reviewing factors affecting the species, identifying site-
specific recovery actions, and estimating recovery costs. NDOW has 
participated in the development of the recovery plan and is one of many 
stakeholders. Participation by the States and other local stakeholders 
is vital in order for the recovery effort to be successful. The draft 
recovery plan will be available for public review, and we hope to 
receive substantial public input from stakeholders, including the 
residents of Jarbidge and the Elko County Board of Commissioners. All 
comments received will be considered by the local recovery team in 
finalizing the recovery plan. Our goal is to have the final recovery 
plan for the Jarbidge River, Coastal Puget Sound, and St. Mary-Belly 
River populations by 2004. We hope to finalize the range-wide plan by 
2003.
    Delisting will occur when the Jarbidge River population meets the 
recovery criteria that are developed by the local recovery unit team 
and identified in the recovery plan. These recovery criteria will 
address the following population characteristics within the recovery 
unit: 1) the distribution of bull trout in existing and potential local 
populations (local populations are groups of bull trout that spawn 
within a particular stream or portion of a stream system); 2) the 
estimated abundance of adult bull trout, expressed as either a point 
estimate or range of individuals; 3) the presence of stable or 
increasing trends for adult bull trout abundance; and 4) the 
restoration of fish passage at any barriers identified as inhibiting 
recovery. Consistent population monitoring using statistically sound 
techniques will be required to determine when the recovery criteria 
have been met and delisting can occur.
    Since the 1999 listing, the Service has participated in conducting 
additional surveys of bull trout and bull trout habitat in the Jarbidge 
River system with NDOW, IDFG, BLM, and the USFS. This work has occurred 
throughout the watershed on the East and West forks of the Jarbidge 
River, Dave Creek, Deer Creek, Jack Creek, Pine Creek, and Slide Creek. 
Probably the most significant findings from this work is the 
documentation of bull trout spawning in Dave Creek in an area with 
substantial habitat restoration potential, and the capture of five 
potential migratory bull trout in fish traps on the lower East and West 
forks by IDFG. Both of these events are extremely encouraging for the 
future success of the species recovery efforts in the watershed.
    Mr. Chairman, this concludes my testimony. I will be happy to 
answer any questions that you or other members of the Subcommittee may 
have. Again, I thank you for giving the Fish and Wildlife Service the 
opportunity to testify.
                                 ______
                                 
    Mr. Gibbons. Thank you very much, Mr. Williams.
    Mr. Vaught, welcome to the Committee. Happy to have you.

  STATEMENT OF ROBERT L. VAUGHT, FOREST SUPERVISOR, HUMBOLDT-
                    TOIYABE NATIONAL FOREST

    Mr. Vaught. Thank you very much. I appreciate being here, 
Congressman Gibbons.
    I would like to talk in more or less general about the 
Forest Service management issues within the Jarbidge drainage. 
That is located on the Jarbidge Ranger District on the 
Humboldt-Toiyabe National Forest.
    My name is Bob Vaught. I'm the Forest Supervisor for the 
Humboldt-Toiyabe National Forest. And I appreciate your 
interest and your willingness to address this topic.
    I think that it is one of the more contentious issues 
because of the strong disagreements associated with the entire 
Jarbidge road issue, and that dealing with it effectively is 
important in order to ultimately effectively deal with the road 
issue. So this is important, and I appreciate your interest in 
allowing us to be here today.
    I defer to the Fish and Wildlife Service considering 
listing issues specifically. The Forest Service role and 
responsibility is to manage habitat and resources that are 
located on the National Forest. We also have a very specific 
role to work with the community and the people in dealing with 
those resource issues so that both the community, people and 
resources are all effectively and appropriately dealt with in 
terms of our decisionmaking.
    There are a number of efforts that have been underway for 
many decades, including recently, that the Forest Service has 
been involved with in the Jarbidge drainage. I would like to 
briefly mention those because I do think it is important to the 
discussion. Some have already been mentioned. Some are 
difficult issues such as the water effort that is underway to 
develop a water system for the community that meets state and 
Federal requirements.
    The sanitary landfill issue which within the recent past 
has been worked on very diligently by those that were involved 
in that. We have been involved in working on grazing issues up 
there. We have been involved in working on reclamation of 
mining issues up there. The Forest Service has been very 
involved in road work, bridge work, culvert work, bridge and 
culvert replacement, bridge and culvert maintenance which have 
been essential for the community.
    So we have a long history of working with the community to 
try to resolve these issues.
    Personally as a professional of nearly 25 years in the 
Forest Service, it is of great consternation to me when these 
kinds of things occur in terms of the controversy associated 
with this issue, that essentially stop good decisionmaking from 
going on and from getting to resolution. And I am hopeful that 
we will soon be able to do that.
    We're all familiar with the intense controversy associated 
with this. As you also well know, in April of 2001, there was a 
settlement agreement that was signed which outlines the factors 
which allow the parties that have been involved in this to work 
together in a positive way toward resolution and ultimate 
decision about whether and how and where the road can be 
rebuilt.
    One of the things that that settlement agreement does is it 
provides Elko County the opportunity to submit to the Forest 
Service a plan that they support for road development. The 
Forest Service has now received that proposal, and in March of 
this year we submitted and issued a notice of intent to do an 
environmental impact statement to work on resolution of this 
issue.
    An environmental impact statement will finally be issued we 
hope about a year from now, hopefully just a little bit sooner 
than that, and according to the laws under which we operate, we 
will of course consult with the U.S. Fish and Wildlife Service 
in that decision.
    In conclusion, the Forest Service remains committed to 
working with the county, to working with the people of 
Jarbidge, to working with the signatories of the settlement 
agreement, to seek resolution to this issue. I certainly 
support the efforts that we nationally are working on to try to 
make the environmental--the ESA, the Endangered Species Act, a 
document that works for people and works for the West. Until 
there are changes to that, we will do everything we can to move 
forward with the decision in consultation with the county that 
is going to be one that is a wise decision and is good for the 
people and is good for the resources.
    Thank you very much for the opportunity to be here, and as 
always, would be very open to any questions that you have.
    [The prepared statement of Mr. Vaught follows:]

  Statement of Robert L. Vaught, Forest Supervisor, Humboldt-Toiyabe 
                  National Forest, USDA Forest Service

    Thank you for the opportunity to be with you today to discuss the 
management of the Jarbidge watershed in the Jarbidge Ranger District of 
the Humboldt-Toiyabe National Forest. My name is Bob Vaught. I am the 
Forest Supervisor for the Humboldt-Toiyabe National Forest.
    I will defer to the Fish and Wildlife Service to address your 
questions concerning the listing of the bull trout. Today, I will focus 
my comments on the management of National Forest System lands in the 
Jarbidge watershed, home to the southern most population of bull trout. 
I will also comment on the Forest Service's efforts to work with Elko 
County and local individuals concerned about the management of the 
National Forest.
    Prior to the 1999 listing of the bull trout as a threatened species 
under the Endangered Species Act, the Forest Service had undertaken 
several management actions aimed at improving the aquatic habitat in 
the Jarbidge River watershed. These actions included:
    1. LImplementation of vegetative utilization standards on all nine 
grazing allotments within Jarbidge River sub-watersheds;
    2. LReplacement of a culvert with a bridge to restore fish passage 
between the West Fork of the Jarbidge River and Jack Creek;
    3. LFencing of several upland springs and portions of river and 
creek bottoms to protect riparian areas from the impacts of cattle;
    4. LImplementation of reclamation and erosion control measures for 
ceased mining operations; and
    5. LCollaboration with Elko County to close the Jarbidge municipal 
landfill and issuance to the County of a special use permit for a 
transfer station that comports with regulatory requirements of the 
Nevada Division of Environmental Protection.
    In 1995, a high water event in the Jarbidge River canyon washed out 
portions of the South Canyon Road and caused the river to cut a new 
channel where the road once ran. This event stimulated much discussion 
concerning the future of the road, access to portions of the National 
Forest and the general health of the aquatic ecosystem.
    In 1997, the Regional Forester reviewed on appeal a decision to 
rebuild the road and remanded the decision to the Humboldt-Toiyabe 
National Forest for further analysis on the effects to the bull trout 
and other aquatic species from road construction and from possible 
future road failure. The Fish and Wildlife Service in April 1999 listed 
the bull trout as a threatened species. The listing requires the Forest 
Service to consult with the Fish and Wildlife Service on agency action, 
such as construction or reconstruction.
    In November 1999, when the House Committee on Resources 
Subcommittee on Forests and Forest Health conducted a field hearing in 
Elko, the United States and Elko County were engaged in discussions 
concerning the fate of a washed-out portion of the South Canyon Road 
along the West Fork of the Jarbidge River. Today, following a federal 
district court settlement agreement signed in April, 2001, I am please 
to inform you Mr. Chairman that the Forest Service and Elko County are 
diligently working together to implement the provisions of this 
agreement.
    The Settlement Agreement spells out the working relationship 
between the parties to the Agreement: John Carpenter, Elko County, the 
State of Nevada's Division of Environmental Protection, and the 
agencies of the United States, the Fish and Wildlife Service, the 
Environmental Protection Agency, and USDA Forest Service. The Agreement 
provides Elko County with the opportunity to submit a proposal to the 
Forest Service to reestablish the South Canyon Road and requires the 
completion of certain watershed improvement projects. The Agreement 
further provides that the Forest Service study the road reconstruction 
and watershed projects following established agency procedures for 
environmental analysis.
    Let me give you an example of how committed Elko County and the 
Forest Service are to working together. A portion of the Settlement 
Agreement identifies the need for interim work on the South Canyon Road 
to prevent erosion. Last Saturday, citizen volunteers, Elko County 
Commissioners and staff, and Forest Service workers, nearly 20 people 
in all, worked side-by-side on a short-term measure to armor stream 
banks in an effort that will reduce the amount of sediment reaching the 
West Fork of the Jarbidge River.
    During the fall of 2001, contract biologists, hydrologists and soil 
scientist, collected data on the condition of the Jarbidge watershed. 
These inventories represent the most recent and complete data available 
to the Forest Service and will be used during the environmental 
analysis. In March 2002, the Forest Service issued a Notice of Intent 
to evaluate the effects of several alternatives for road 
reconstruction, and watershed and aquatic habitat improvement projects. 
A series of public meetings were held this spring and work has begun on 
a draft Environmental Impact Statement. Elko County as a cooperating 
agency is working closely with the Forest Service in the environmental 
analysis process. They submitted a proposal for road reconstruction to 
the Forest Service this past June. A Final Environmental Impact 
Statement expected next spring.
    As required by law (the National Environmental Policy Act, the 
National Forest Management Act, and the Endangered Species Act, and 
others) and regulations, the Forest Service will consult with the Fish 
and Wildlife Service to guarantee that any action in the South Jarbidge 
Canyon will not jeopardize the continued existence of the listed bull 
trout. The Forest Service asked the Fish and Wildlife Service to be a 
cooperating agency during the environmental analysis process. The 
Service agreed. Working closely in this manner will ensure the Service 
fully understands the project and potential impacts to the listed 
species, and allow them to provide input to the alternatives to be 
evaluated.
    In conclusion, the Forest Service remains committed to working with 
the cooperating agencies and keeping the interested publics informed of 
the progress we are making on the environmental analysis and we are 
also committed to following the laws and regulations governing the 
environmental analysis.
    Mr. Chairman, this concludes my statement. I will be happy to 
answer any questions you may have.
                                 ______
                                 
    Mr. Gibbons. Thank you. Thank you, Mr. Vaught.
    Both of you provided I think all of us an important 
statement, function of your agency and the purpose why you have 
taken on this issue, and I think it's important for everyone 
here to hear that as well.
    Of course, my questions will be focused I believe primarily 
to Mr. Williams. Should I say Dr. Williams? You do have a 
Ph.D.?
    Mr. Williams. No, I do not.
    Mr. Gibbons. You do not. Are you a biologist?
    Mr. Williams. Yes, I have a Master's Degree in fishery 
biology.
    Mr. Gibbons. So when we talk about fish, you know a lot 
about them.
    Mr. Williams. I used to know more about them. Being a 
manager. The science has continued.
    Mr. Gibbons. Let me go back, because the issue gets back to 
the whole purpose why we're here what the criteria was that we 
were looking at, you were looking at when you decided to list 
this as a threatened species, and as I listened to your 
statement, you kept using the term we believe. What data were 
you using at that point?
    Mr. Williams. I think for the--and we tried to in my 
written testimony outline a lot more of the detail. If I can--
and I have not specifically tracked all the data that was used 
in the listing decisions that were made in '94--.
    Mr. Gibbons. Let me ask the question, did the Forest 
Service itself, U.S.--I mean not the Forest Service--Fish and 
Wildlife Service itself collect the data? Did it study it with 
its own biologist?
    Mr. Williams. No, and that is where I was going to go. It 
is my understanding in the '94 era, 1994, is when the Fish and 
Wildlife Service was looking at the species specifically 
rangewide and trying to make a determination of whether it was 
warranted, based on the first petitions, and that is when we 
basically said from all the information we collected, and most 
of it came from academia, it came from states, tribes, whoever 
basically was on the ground and managing the species, those 
were the data that we used and looked at the species rangewide, 
made the determination that it wasn't warranted for listing 
rangewide. But within the terminus of the United States or the 
lower 48, we said that it was warranted based on the 
information from the states, from the tribal entities across 
the range in the lower 48, that it was warranted because of the 
status of the species and because of the habitat, modifications 
or changes or destruction, things that had gone on across the 
range.
    Mr. Gibbons. Let me summarize because the law I think is 
very clear. It says decisions to list a species must be made, 
quote, solely on the basis of best scientific and commercially 
available data. And in 1999, you made that decision to list the 
bull trout in Jarbidge based on the best scientific and 
commercially available data; is that correct?
    Mr. Williams. That is correct. And that data did include 
the data from the Division of Wildlife. From their 1990 report, 
their 1994 report, and even their raw data or their preliminary 
data that we had and were able to talk to them about that 
wasn't published until after the final rule came out in 1999. 
So we were in communication with them.
    Mr. Gibbons. OK. In 1994, though, your agency published a 
finding that a listing of the bull trout was warranted but 
precluded by higher priority listings.
    Mr. Williams. That is correct.
    Mr. Gibbons. Was your proposed rule to list the Columbian 
Klamath population, I presume the bull trout, in 1997 a 
response to the '96 Oregon District Court order, or was it 
based on the basis of best scientific and commercial data?
    Mr. Williams. I think--well, on the best available 
information, the best available scientific information at the 
time. But I think where the Court came in and said your 
decision to put it at a priority 9 is not appropriate given 
what the plaintiffs had come to us with with maybe new 
information or other information saying, we want this species 
listed now. And so the Court directed us to reconsider the 
information and any new information, and that's where we 
basically made and agreed to go forward with the Columbia and 
Klamath.
    Mr. Gibbons. That was '97.
    Mr. Williams. Yes.
    Mr. Gibbons. The Jarbidge population was not proposed to be 
listed until June of '98, after the Oregon District Court order 
of December of '97 ordered your agency to reconsider the 
proposed rule we just talked about, and you said the reason the 
Jarbidge bull trout was not proposed to be listed in your '97 
rule was that the Court order prohibited using data not part of 
the '94 record; is that correct?
    Mr. Williams. Right. But in March of '97, we were 
redirected to look at all of the--look at the '94 record and 
any new information. That's what the March '97 directive from 
the Court was.
    Mr. Gibbons. So the information, though, on the Jarbidge 
trout was not available to you prior to '94, was it?
    Mr. Williams. Yes, it was. We had Jarbidge information in 
'90 and the '94 report.
    Mr. Gibbons. Well, I'm reading the Court record, and it 
indicated it was not part of the '94 record. Did you get 
information after '94 that tipped the scales then in listing 
this species?
    Mr. Williams. From March of '97 until we came out with the 
proposed rule is when we were allowed to look at all the 
available information and do an analysis of threats, and 
that's--and we basically were directed--based on that 
information, we made another finding that it was warranted for 
us to list Jarbidge, Puget Sound and St. Mary Belly.
    Mr. Gibbons. But as you heard the two gentlemen earlier, 
there have been no grazing, overgrazing in there for decades. 
Road construction had been going on for a number of years, but 
there was no data on what the effect of the road construction 
had been. Overutilization, whether by recreation, et cetera, 
you didn't have data that specified that.
    You came in and you used hypothetical or opinions because 
that's what you said, you said we believe rather than we 
studied the data on it. So you took data that wasn't scientific 
or commercial and posed that with opinion data, did you not?
    Mr. Williams. Yes. But if I could add. I think--.
    Mr. Gibbons. I'm not trying to drag you through this 
kicking and screaming. It's OK to say yes.
    Mr. Williams. But I think it's important for the record for 
you to understand the process that we went through, if you 
will, in terms of the analyses. And while we may not have had 
the exact amount of sediment, the tonnage of sediment that goes 
in from the sidecasting of the road maintenance activity, we 
know from other streams and other areas that that is a problem 
in terms of sedimentation on spawning areas. That is known 
within the scientific community of people studying trout. So 
that in and of itself becomes a threat.
    While we don't have again the specific amount that goes in 
on the Jarbidge and any particular bend in the river, we know 
that road maintenance activities is affecting, can affect 
reproduction, can affect the species. So that becomes a threat.
    The fact that it is an ongoing activity, that becomes a 
threat in terms of our analysis and the way we present it.
    Mr. Gibbons. And if you knew about any typical road 
construction that proposed the threat to the species, you would 
take action to stop it after the listing as a threatened 
species; correct?
    Mr. Williams. Correct. I think that that's really the 
impetus of why we moved it in terms of the emergency listing.
    Mr. Gibbons. Let me ask this question. Did your agency 
participate with the Forest Service in the removal of the road? 
In other words, the reshaping and contouring of the original 
existing road structure after the listing of threatened?
    Mr. Williams. Yes.
    Mr. Gibbons. And you recognized then the activities that 
took place by that construction crew during that time and its 
effect on the bull trout?
    Mr. Williams. Yes.
    Mr. Gibbons. Because we have seen a lot of pictures where 
that construction crew had its equipment in the middle of the 
stream. It was using heavy equipment, diversions, had bales of 
hay and plastic diverting the canal and the streambed. But 
that's OK.
    Mr. Williams. We went through what we called section 7 
consultation. We worked with the Forest Service and experts in 
terms of stream and river morphology to make sure that the 
activities that were undertaken minimized effects to the 
species, minimized effects to the stream, while trying to 
reconfigure and put the stream back into a healthy state. So 
under that kind of a scenario, yes, we did basically concur 
that those practices and that activity was consistent with 
conservation of the species.
    Mr. Gibbons. I guess it's all a relative portion. When you 
have a bulldozer sitting in the middle of a stream, whether or 
not that's healthy for a fish species is a question we can 
debate, and we won't get into that now.
    Let me ask, go on to this. How many of the U.S. Fish and 
Wildlife Service listings, 1200 we have cited in here, have had 
the luxury of going through a rigorous scientific and 
commercially available data analysis prior to listing?
    Mr. Williams. I think all of them to the same extent that 
we went through for the listing of the bull trout. Many species 
are afforded a more thorough analysis, if you will, if there is 
more available information, we know more about the species, we 
know more about the direct threats. There are a host of species 
out there that we have listed with not a lot of information. 
But again, using the process of a surrogate species or closely 
related species where we know where certain things can be 
affecting the overall dynamics of population structure.
    In terms of the analysis, we do have a Fish and Wildlife 
handbook. We have classes basically where we send young 
biologists to basically teach them and walk them through the 
mental processes with using all the available information that 
they can to put together a sound listing package.
    Mr. Gibbons. I think you saw the recommendations and the 
studies that have been done by other scientists who were 
specialists in fisheries and extinction specialists, and the 
recommendations that they made with regard to what they saw 
from all of the data. And I guess the one big conclusion that 
we can all draw from looking at what their statements and their 
reviews have been, is that the data is inconclusive, the data 
leads one way or the other but doesn't specifically come to a 
finite conclusion.
    Mr. Williams. For this species, if I could be so bold, I 
think for this species we don't argue the point that it is at 
the southern most end of its range, and there is global 
warming. We recognize that going on. But I don't believe that 
there is anything in the Endangered Species Act that says you 
can walk away from it. Because of all of the things that you 
can't control, you just walk away from it.
    Mr. Gibbons. We're not asking you to walk away. I think 
what we want to do is make sure that the law is applied, it has 
to use solely decisions made on the best scientific and 
commercially available data, and that when there is a listing, 
that we start taking action to turn it around to get it back 
from the edge of extinction if we can, and if we can't, 
rationally do what we can. The purpose of the bill and the 
purpose of the law was not to be using the ESA, the Endangered 
Species Act, to effect some other agenda, and that's what we 
see on some occasions.
    Now, I'll give you one example where the Fish and Wildlife 
Service is turning another eye away from doing its job, and 
that's on the Potomac River, there is a new bridge being built 
between Virginia and Maryland just south of the Capitol to 
facilitate the heavy, heavy traffic burden there. There is 
endangered Atlantic sturgeon that lives in the Potomac River 
there. Dredging the silt off the bottom is indeed an enormous 
impact, has an enormous impact on the species, that endangered 
species itself. And yet, the Fish and Wildlife Service has sort 
of stepped back and said it's OK to dredge because we need the 
bridge.
    Now I guarantee you out here in Nevada, you would never get 
even the consideration of that kind of a plan, let alone 
dredging in the river, moving the bed upon which the sturgeon 
lays its eggs and survives on out here. Plus it's stirring up a 
lot of sediment, a lot of toxics metals. They are continuing to 
allow the Department of Reclamation to dump toxic materials 
into the Potomac, and yet it has the habitat for an endangered 
species.
    And we see a different application of the standards east of 
the Mississippi than we do out here in the West. And for those 
of us out West, these people out here that are affected 
dramatically, it is very difficult to understand why when you 
are in Virginia and Maryland you can go ahead and build an 
eight lane bridge across an endangered species habitat, but we 
can't have a little dirt road along the side of the stream up 
there that doesn't impact the bull trout.
    [Applause.]
    Mr. Gibbons. But the purpose. If you are going to do it in 
one place, be consistent and do it every place. And the 
frustration is what has led not only us in Nevada but other 
states, California, the Klamath area, and Oregon in the Klamath 
area--excuse me--Idaho, Montana, Utah, Arizona, many many 
western states are having the same very very difficult time 
with the Endangered Species Act because when they get listed, 
there is no way to get them off the listing. And that's 
something we want to talk about in a minute is how we're going 
to get this species off the endangered list.
    The impact it has on private property is enormous. When a 
butterfly is listed, as it was recently up in Northwest Nevada, 
the impact that had on private property owners and the ability 
that they could have on their own property is dramatically 
impacted. I don't think that was the intent of the law because 
I can't imagine back in 1973 that Congress would envision that 
somebody could not step foot on his own property for fear of 
endangering the habitat of a butterfly.
    It's gone so far over the edge today that many of these 
people here are becoming so frustrated, they don't know where 
to turn. And this is why we have to come back in Congress and 
start saying we have to start using scientific data rather than 
using subjective nonanalytical approaches.
    And I can just say that it appeared when you listed this 
you didn't model the bull trout population risk or the 
uncertainty using the available methods, or even the quoted 
estimates provided by answers in your proposed rule that were 
brought up. There were some modeling that should have been done 
on those proposed rules. And the Nevada Department of Wildlife 
reports that were given to you about the scarcity of the 
empirical data.
    And it seems to me that the modeling data that's necessary, 
the science modeling--I mean, I'm a scientist but I'm in the 
mining and geology side of it. We always use modeling when 
we're looking at how do we view something in total and how do 
we analyze it from the perspective of making use of it.
    Modeling is something that you as a scientist know is the 
proper way to do it, but it doesn't seem to me that you modeled 
the bull trout using all of that data that you say you had from 
schools, universities, states, private industries, people, 
tribes. You must have had enough data to model all of this to 
give you a pretty good idea, but it doesn't seem that you used 
the modeling as a purpose.
    Let me ask: Why didn't you model these? Why didn't you 
perform a modeling exercise?
    Mr. Williams. In terms of modeling the population, I think 
in our review of the information that we had and because of the 
way it was collected, I guess we felt like because you know any 
model is only as good as the information going in and the 
variances in terms of if you run a statistical analysis of the 
variances that you are going to get out at the end. And because 
we just believed that the data had limitations in terms of 
being able to extrapolate or start looking at the overall 
population.
    And I think that was borne out through some of the peer 
review in terms of the utility of the information. But we took 
it at face value. And those data are valuable from the 
standpoint of looking at snapshots in time over so many years, 
the late '80's on through early '90's and into the late '90's 
in terms of the persistence of the species. But the scientists 
have also said the persistence of this species, bull trout in 
the Jarbidge, is not very viable, if you will, based on where 
we are right now.
    I think the good news is, though, based on the data 
collection and the working together with the state that's 
occurring today, we're getting more information. We're looking 
at finding other areas that have temperature that can expand 
their range. With some habitat improvements, I believe that 
this species can extend itself in terms of distribution, and we 
can get into some activities working with the Forest Service 
and the community to basically have and define what we believe 
to be delisting criteria.
    Mr. Gibbons. Let's talk for a moment in the brief time that 
we have, let's talk a little bit about the delisting process. 
In order to delist this trout what would be the requirements to 
delist the bull trout?
    Mr. Williams. I guess the way--and there is a--let me back 
up a little bit. There is a rangewide bull trout recovery team, 
and that's across the range.
    Mr. Gibbons. So you're saying you would have to have the 
bull trout recovery team in Oregon, Idaho, Montana and Nevada 
to delist the bull trout in Jarbidge?
    Mr. Williams. No. I just wanted to let you know where the 
recovery criteria process is. There is a rangewide team of 
which the state has been invited and the Fish and Wildlife 
Service is basically leading that rangewide team. Each of the 
distinct population segments, which the Jarbidge is distinct 
and of itself, has what we call a local unit team. And so we 
will have specific criteria for the Jarbidge distinct 
population segment upon which once we meet those criteria this 
area can go ahead and be delisted, without the Columbia, 
without the Klamath or Puget Sound or St. Mary.
    The recovery criteria that we believe that will need to be 
addressed within each of their units, and I can kind of list 
them for you, is looking at the distribution of bull trout in 
the existing and potential local populations or in these local 
population areas; the established abundance of adult bull trout 
expressed as either a point estimate or a range of individuals; 
the presence of stable or increasing trends in the bull trout 
abundance; and restoration of fish passage at any barriers 
identified within a recovery area.
    Mr. Gibbons. This plan is the one you are talking about 
that will be finished by December?
    Mr. Williams. It should start addressing those things and 
at least laying it out by the team, and then that would go out 
for public comment, right. We hope to have those kinds of 
criteria and how we want to approach each of those four.
    Mr. Gibbons. And the kinds of criteria would be like the 
American Society of Fisheries have said, if you have a 
population of less than 2000, it's risky, if you have more than 
2000. So if I walked out there today or say I walked out there 
January 2003, you come up with your plan that says if we have a 
population of 2000, not the 694 bull trout that they estimate, 
and I went out there and I individually counted 2,010 bull 
trout in the stream, and I qualified under that, would it be 
delisted if I came in with a very specific study, if I were a 
biologist and you believed me, and studied and said that 2,010 
bull trout, a population that is capable of sustaining itself 
and it was over the 2,000 mark, would you delist it?
    Mr. Williams. I think that that's one of several of the 
criteria. The exact number as estimated by adult abundance, 
that is what you are talking about. You got 2,000 adults you 
counted, that's one criteria.
    But I think in terms of delisting, as I said in my 
testimony, we are really looking at persistence over time. So I 
think it's not only what you had today but can you demonstrate 
based on the population over several years of sampling that 
your population is stable or it's increasing.
    Mr. Gibbons. Well, let me say that the population stability 
was never studied by you because there was no data that 
indicated the population stability over time was decreasing. 
That wasn't part of your decision factor. They indicated here 
that their estimates, this American Society of Fisheries, gave 
an estimated number and said, well, because it is below 2,000, 
it is unlikely that it will survive.
    How are you going to get the population to grow? What are 
you going to do to get it to grow?
    Mr. Williams. I'd like to add a couple things. No. 1, I 
think that's why it's so important as the recovery team starts 
to come up with what we believe to be approved methodology that 
gets us to statistical reliability so we can track populations 
total over time. Second, I think that by improving habitat, by 
working on some of the things that were identified as threats, 
that I think that we can improve habitat which basically helps 
build the population over time.
    So with improvement of habitat, to me is the key that helps 
establish and brings back the native species or brings back 
populations, and we can start documenting that over time. And I 
believe in the science of the viability population analysis 
that says you need X number of adults and juveniles and young 
fish over time, and then you will basically have a stable 
population. If the scientists come back, the team comes back 
and says this is what we need and here are some recovery 
activities for the habitat, we put it in a plan, in the 
Service's policy about a deal is a deal is real, and we'll 
delist the species.
    Mr. Gibbons. When you testified earlier you indicated a 
number of things that you believe were a factor, preexisting 
mining, preexisting large woody removal from the stream. Is 
large woody removal from the stream being conducted today, or 
in the recent past, last week?
    Mr. Williams. Is it being investigated?
    Mr. Gibbons. Is large woody debris removal currently being 
conducted from the east fork of the Jarbidge River?
    Mr. Williams. I don't know specifically whether it's being 
done. I think it has been done in the past as a way to clear 
the channel out and make sure that some of the storm events--
not storm--flood events like '95 didn't occur. That is I think 
information that we receive probably from the Forest Service as 
part of the listing package.
    Mr. Gibbons. Going back to your delisting process, what can 
we do, what can the community do, what can Congress do in the 
meantime to help the species?
    Because these people out here want to do it as fast as 
possible. They don't want to wait till every one of them is 
dead and their grandchildren say we still have the endangered 
trout, and 2,000 years old and we're waiting for the next Ice 
Age. They want to move forward, and if we can do something, we 
want to know what it is we can do.
    Mr. Williams. I believe that--well, the listing or 
delisting process is critical in terms of bringing in 
stakeholders and working with partners. There is no way--and we 
know that we cannot delist the species by ourselves. So it 
requires us, and we need to engage the local community at 
whatever level they are willing to engage with us in terms of 
doing that.
    I think coming up with things like an improved road 
maintenance program, working with Elko County and the citizens, 
is there a better way to grade the road, to have access into 
Jarbidge without sidecasting material. Is there a better way to 
provide wood for the campers and the people that go up there 
rather than just let them top down a dead or dying bush or a 
limb off the tree. I think that there are ways working with the 
Forest, working with BLM, working with the community to build a 
recovery plan that we can all embrace and we can all work 
together at delisting the species as quick as possible.
    Mr. Gibbons. Explain to me and this Committee why your 
agency has the sole authority to list something which you said 
you cannot delist it by yourself.
    Mr. Williams. I guess to me the simple answer to that is 
the Congress in the passing of ESA entrusted that 
responsibility to the Secretary. The Secretary of Interior is 
entrusted the regulatory aspects or the Endangered Species Act 
implementation to Fish and Wildlife Service.
    Mr. Gibbons. Are you afraid you will be sued?
    Mr. Williams. Excuse me?
    Mr. Gibbons. Are you afraid you will be sued if you attempt 
to delist this bull trout?
    Mr. Williams. You mean right now without having--.
    Mr. Gibbons. I mean, are lawsuits part of your 
consideration why you either list something or don't list 
something?
    Mr. Williams. Not really. I think we are certainly moved 
and are directed all the time by Court to list things. But as a 
normal day-to-day business for myself working in my office, no, 
not at all. In fact--.
    Mr. Gibbons. That is because you have free lawyers, is what 
you are saying. You have taxpayer paid lawyers.
    Mr. Williams. If I could go on a little bit. I mean, I look 
as an agent of the Fish and Wildlife Service responsible 
working in the State of Nevada, I work and look hard for ways 
to do everything but list species. Listing in a lot of ways is 
a no-win situation.
    And I would rather work with the community, and there are 
examples within the state where we have worked with the 
community to not list species, such as the Amargosa toad. We 
are working right now on the relic frog down in Clark County to 
not have to list that species, in the face of a petition right 
now from a group, Center for Biological Diversity, that I think 
the next step is to sue us. But I'm still forging ahead trying 
to get a plan in place where we don't have to list that 
species.
    Mr. Gibbons. And I think that's a very very wise and 
prudent place for your agency to be working. I mean, that to us 
is never let the species get to that point.
    Mr. Williams. Right.
    Mr. Gibbons. And all I can say is I certainly hope that you 
are also doing the same heavy lifting in keeping the sage hen 
or the sage grouse from being listed as an endangered species 
as well. That's something I think we can work on and prevent 
and never have to stumble through that serious problem down the 
road as well.
    Mr. Vaught, you have sat there for a long time, very 
patiently, haven't been asked a question. Let me just throw one 
at you, just softball.
    Does the Forest Service have, or even BLM, if you know, 
because that's not in your prerogative, but does Forest 
Service, an agency like yours, have an improved road 
maintenance plan?
    Mr. Vaught. The settlement agreement that I previously 
described has a responsibility that the Forest Service is kind 
of the lead for, but all of us as a part of the settlement 
agreement are going to work to accomplish really three major 
things within that settlement agreement, which are in answer to 
your question. The first is resolution of the roads issue, of 
course. The second is very specific habitat improvement 
projects that can and should be completed on the Jarbidge River 
system and the South Canyon Road area. And the third is a road 
maintenance and improvement plan that we work together on with 
the county to identify and implement.
    I do believe that resolution of those three issues will go 
a long way in dealing with the delisting issues as well.
    Mr. Gibbons. Wonderful.
    Gentlemen, especially Mr. Williams, you have been the 
subject of my questioning now for a considerable period of 
time, and I greatly appreciate your patience and your answers 
as well, and I have got a number of additional questions that I 
have, but rather than keep you here and keep you in the 
limelight and the hot seat, so to speak, what I'd like to ask 
is if I could submit written questions to you and have you 
return them to the Committee within, say, a reasonable period 
of time. Thirty days ought to give you time to answer some of 
these questions. They shouldn't be too difficult questions, and 
we will do that.
    Mr. Williams. Sure.
    Mr. Gibbons. I will submit them to you in writing through 
the Committee process, and would appreciate both of you 
responding to any questions that come to you appropriately. 
With that, let me thank you for your work and your presence 
here today, your testimony that you have given us. I will 
excuse you now at this point and call up our third panel. Thank 
you, gentlemen.
    Our third panel today is going to consist of Gene Weller, 
the Deputy Administrator of the Nevada Division of Wildlife, 
Nevada Department of Conservation and Natural Resources; Dennis 
Murphy, professor, Department of Biology, University of Nevada 
Reno; Steve Trafton, Western Native Trout coordinator for Trout 
Unlimited, the California chapter; Bert Brackett, a cattle 
rancher from Flat Creek ranch.
    Gentlemen. Well, Mr. Weller, we will begin with you going 
from left all the way down the list and have you each testify, 
and we would like to have you summarize your testimony as you 
heard others, and we will submit your full and complete written 
testimony for the record.
    Mr. Weller, welcome. The floor is yours.

  STATEMENT OF GENE WELLER, DEPARTMENT ADMINISTRATOR, NEVADA 
                      DIVISION OF WILDLIFE

    Mr. Weller. Thank you, Congressman Gibbons. Good afternoon 
to you.
    My name again for the record is Gene Weller. I am a 30-year 
plus employee with Nevada Division of Wildlife. My current 
position is Deputy Administrator with that agency.
    But I bring a perspective to this hearing that's a little 
broader. At the time of the events in question, I was the local 
program biologist in this area. So I have a lot of personal 
firsthand experience in there. I believe I can bring a good 
deal of history to these proceedings.
    And I thank you for the opportunity to testify and 
including my complete testimony in the hearing record.
    By Nevada statute, fish and wildlife in their natural 
habitats are part of the natural resources belonging to the 
people of the State of Nevada. The Division of Wildlife is 
charged with the preservation, protection, management and 
restoration of that wildlife and its habitat. In accordance 
with this legislative mandate, the Division is responsible for 
the fish populations in the Jarbidge River system which is 
under consideration today.
    As early as 1954, the then Nevada Fish and Game Commission 
was monitoring and actively managing the fish populations of 
the Jarbidge River system. That activity is continued to the 
present. The results of those ongoing investigations are 
maintained in individual reports, files and annual job progress 
reports and are available for public inspection.
    On August 11th, 1998, as a direct result of work by Elko 
County to reconstruct the South Canyon Road on the west fork of 
the Jarbidge River, the Jarbidge River bull trout was listed as 
an emergency endangered species under the authority of the 
Endangered Species Act. The emergency endangered classification 
is a temporary one, normally used only when a species is in 
immediate peril of extinction. The Division of Wildlife 
disagreed with the emergency listing because the reach of the 
Jarbidge River immediately affected by the county's actions is 
not critical to the survival of the Jarbidge River distinct 
population segment of bull trout.
    You mentioned in your definitions earlier before the 
difference between focal and nodal habitats. We would say that 
the area in question was indeed a nodal habitat, not a focal 
habitat. There is a big difference there. I'll address that as 
I go through.
    In April 1999, when the emergency endangered listing 
expired, the bull trout was listed by the U.S. Fish and 
Wildlife Service as a threatened species. The Division of 
Wildlife after careful consideration of the biological status 
of the species opposed this listing because, in our opinion, 
the five threats criteria which we have talked about before 
defined in the Act for listing the species are not supported.
    Virtually all of the critical bull trout habitat in Nevada, 
that focal area of the species, is located deep within the 
Jarbidge wilderness area. It's hard to see on this map but it 
is designated in the darker green there, if you look closely, 
where impacts by man are virtually nonexistent. There is 
currently no grazing, mining, recreation or other land use 
impacts to bull trout populations within that wilderness area. 
More temperature tolerant adult Jarbidge bull trout are indeed 
migratory and seasonally inhabit lower reaches of the Jarbidge 
River as the South Canyon Road and below. However, naturally 
higher water temperatures discourage year-round bull trout 
habitation of these areas. It becomes a nodal area.
    Bull trout are a glacial relic, and they are dependent upon 
cold clear water between 40 and 51 degrees Fahrenheit, moderate 
stream gradients of less than 12 percent, and suitable stream 
flows of more than one cubic feet per second for spawning and 
rearing. These exacting habitat conditions are naturally 
limited in the Jarbidge River system in Nevada. However, 
Division studies show that where these habitat conditions 
prevail in the Jarbidge, bull trout exist in reasonable and 
viable numbers.
    Bull trout are classified as a game fish in the state of 
Nevada, but there is currently a regulation that prohibits 
harvest by fishermen. Fish disease testing in the drainage has 
revealed no harmful or threatening pathogens. The Division does 
not stock hatchery trout in the Jarbidge River. There are no 
competing or hybridizing species present in the river.
    Evidence collected by the Division suggests that there are 
minimum of three genetic subpopulations in the Jarbidge system, 
which mitigates threats to the population from natural 
disasters and ensures genetic diversity within the population 
as a whole. Recent discoveries of wandering bull trout, adult 
bull trout in less suitable reaches of the system support our 
confidence in the role of the Jarbidge River metapopulation to 
recolonize itself in case of a stochastic event.
    The definition of threats in the 1999 final rule cannot be 
supported. Even the rhetoric of the final rule contradicts 
itself, as you pointed out, by explaining that most of the 
identified threats to the persistence of bull trout are a 
problem in other portions of the bull trout's range but not in 
the Jarbidge.
    The Division has further argued that even if the threats 
defined in the listing rule were real, there are virtually no 
practical management actions which could be applied to remedy 
them due to the protected nature of the existing populations 
and the near pristine condition of their primary habitats. 
There are no significant threats to the Jarbidge River distinct 
population segment of bull trout.
    We currently have a listed species in the Jarbidge River 
with no conceivable means to delist it. Yet the Division and 
others are now obligated to divert significant resources to 
meaningless recovery efforts for the bull trout.
    The Division has determined from extensive biological 
investigations before and after the final rule that bull trout 
in the Jarbidge system are relatively well distributed 
throughout the system and are secure in those habitats. Habitat 
surveys conducted by the Division of Wildlife document good to 
excellent aquatic and riparian habitat conditions throughout 
the system. Ongoing fish surveys show fish populations, 
including redband trout, mountain whitefish, suckers, dace and 
bull trout that are robust, well distributed, and stable or 
increasing relative to past surveys. This is consistent with 
and supports the data presented to the Fish and Wildlife 
Service at the time of the listing decision.
    The Division utilizes proven inventory methods and 
population estimation protocols that accurately portray the 
status and trend of fish populations. Competent trained 
biologists of the Division of Wildlife have walked every mile 
of bull trout habitat in the Jarbidge River system. I would 
hazard to say that we are the only ones who have done so.
    Division personnel are the most knowledgeable people on 
this planet about the bull trout in the Jarbidge. Our knowledge 
is formidable, not based on reading a report or a treatise on 
life history but by walking the streams and handling the fish.
    From that practical knowledge base as well as our 
substantial data, Division biologists have maintained from the 
onset that bull trout populations of the Jarbidge are secure 
and continue to reside in low numbers in a disjunct 
distribution. That distribution represents the preferred flow 
and temperature criteria for year-round bull trout occupation. 
We are aware--we are aware--unaware of any declining or lost 
populations since we have been conducting surveys in the 
Jarbidge drainage. I would remind you that the Endangered 
Species listing criteria notes that, quote, ``rarity in and of 
itself is not adequate reason for listing.''
    In conclusion, the Division of Wildlife, based upon 
scientific data holds, that the Jarbidge River bull trout 
populations are now and were at the time of their listing 
viable. They are not teetering on the brink of extinction 
because of the actions of man.
    Indeed, the protection already afforded bull trout by the 
Jarbidge Wilderness designation has probably mitigated most 
human influences leaving the future of bull trout in the 
Jarbidge River system subject only to natural evolutionary 
processes. If the fish disappears in the unforeseeable future, 
it will be because as a glacial relic, it is going the way of 
glaciers. Until then, bull trout are an important part of 
Nevada's wildlife resources, and the Division of Wildlife 
stands ready to manage them accordingly without the unnecessary 
protection of the Endangered Species Act.
    I thank you for this opportunity to testify, and I will 
gladly answer any questions you have.
    [The prepared statement of Mr. Weller follows:]

  Statement of Gene Weller, Deputy Administrator, Nevada Division of 
                                Wildlife

    Good morning, Mr. Chairman, Committee members. My name is Gene 
Weller. I am a thirty plus year employee of the Nevada Division of 
Wildlife, and my current position is Deputy Administrator. I bring an 
added perspective to this hearing, as I was the local Fisheries Program 
Supervisor here in Elko when the whole bull trout controversy started 
back in the mid-1990's. I believe I can bring a great deal of history 
to these proceedings. Thank you for the opportunity to testify.
    By Nevada statute, fish and wildlife in their natural habitat's are 
part of the natural resources belonging to the people of the State of 
Nevada. The Division of Wildlife is charged with the preservation, 
protection, management, and restoration of that wildlife and its 
habitat. In accordance with this legislative mandate, the Division is 
responsible for the fish populations of the Jarbidge River system, 
which is under consideration here today. As early as 1954, the then 
Nevada Fish and Game Commission was monitoring and actively managing 
the fish populations in the Jarbidge River system. In 1992, in direct 
response to a growing regional concern about the range-wide status of 
bull trout, the Department of Wildlife embarked upon an exhaustive 
inventory of the trout in the Jarbidge River system in Nevada with 
specific emphasis on bull trout. This study was completed in 1994, and 
results were made public in an unpublished Department report entitled 
The Status of Bull Trout in Nevada (Johnson and Weller 1994). Beginning 
in 1998, another exhaustive survey of the Jarbidge River fish 
populations was undertaken by the now Division of Wildlife. The results 
of this study are summarized in yet another Division publication 
entitled The Status of Bull Trout in Nevada (Johnson 1999). I have 
included copies of each report in my testimony support materials. Since 
that time, the Division has continued in its efforts to discern the 
biological status and trend of the Jarbidge River bull trout 
population. The results of these investigations are maintained in 
Division files and annual job progress reports. The information I am 
providing you today is drawn primarily from the 1994 and 1999 status 
reports as well as more current information.
    On August 11, 1998, as a direct result of work by Elko County to 
reconstruct the South Canyon road on the West Fork of the Jarbidge 
River, the Jarbidge River bull trout was listed as an ``emergency 
endangered'' species under the authority of the Endangered Species Act. 
The ``emergency endangered'' classification is a temporary one, 
normally used only when a species is in immediate peril of extinction. 
The Division of Wildlife disagreed with the emergency listing because 
the reach of the Jarbidge River immediately affected by the County's 
actions is not critical to the survival of the Jarbidge River Distinct 
Population Segment of bull trout. In April 1999, when the ``emergency 
endangered'' listing expired, the bull trout was listed by the U.S. 
Fish and Wildlife Service as a ``threatened'' species. The Division of 
Wildlife, after careful consideration of the biological status of the 
species, opposed this listing because, in our opinion, the five 
criteria defined in the Act for listing a species are not supported. 
Those five criteria are:
    1. LThe present or threatened destruction, modification, or 
curtailment of its habitat or range;
    2. LOver-utilization for commercial, recreational, scientific, or 
educational purposes;
    3. LDisease or predation;
    4. LThe inadequacy of existing regulatory mechanisms; and
    5. LOther natural or manmade factors affecting its continued 
existence.
    It is our contention, and has been since the listing occurred three 
years ago, that the Jarbidge River bull trout populations in their 
present or future states are not subject to the aforementioned threats; 
neither is the species imperiled unto extinction.
    Virtually all the critical bull trout habitat in Nevada is located 
deep within the Jarbidge Wilderness Area where impacts by man are 
virtually non-existent. There are currently no grazing, mining, 
recreational or other land use impacts to bull trout populations within 
the wilderness area. More temperature tolerant adult Jarbidge bull 
trout are migratory, and seasonally inhabit lower reaches of the 
Jarbidge River such as the South Canyon Road site; however naturally 
higher water temperatures discourage year around bull trout habitation 
in these areas. Bull trout are a glacial relict, and they are dependent 
upon cold clear water between 40' to 51'F, moderate stream gradient of 
less than 12%, and suitable stream flows of more than one cubic feet 
per second for spawning and rearing. These exacting habitat conditions 
are naturally limited in the Jarbidge River system in Nevada; however, 
Division studies show that where these habitat conditions prevail in 
the Jarbidge, bull trout exist in reasonable and viable numbers.
    Bull trout are classified as a game fish in the State, but there is 
currently a regulation that prohibits harvest by fishermen. Fish 
disease testing in the drainage has revealed no harmful or threatening 
pathogens. The Division does not stock hatchery trout in the Jarbidge 
River. There are no competitive or hybridizing species present in the 
river. Evidence collected by the Division suggests there are a minimum 
of three genetic subpopulations in the Jarbidge system, which mitigates 
threats to the population from natural disasters, and insures genetic 
diversity within the population as a whole. Recent discoveries of 
``wandering'' adult bull trout in less suitable reaches of the system 
support our confidence in the role of the Jarbidge River metapopulation 
to recolonize itself in the event of a stocastic event.
    The definition of threats in the 1999 final rule cannot be 
supported. Even the rhetoric of the final rule contradicts itself by 
explaining that most of the identified threats to the persistence of 
bull trout are a problem in other portions of the bull trout's range, 
but not in the Jarbidge. The Division has further argued that even if 
the threats defined in the listing rule were real, there are virtually 
no practical management actions which could be applied to remedy them, 
due to the protected nature of the existing populations and the near 
pristine condition of their primary habitats. There are no significant 
threats to the Jarbidge River Distinct Population Segment of bull 
trout. We currently have a listed species in the Jarbidge River with no 
conceivable means to delist it. Yet the Division and others are now 
obligated to divert significant resources to meaningless recovery 
efforts for the bull trout.
    The Division has determined from extensive biological 
investigations before and after the final rule that bull trout in the 
Jarbidge River system are relatively well distributed throughout the 
system and are secure in those habitats. Historical data indicates bull 
trout have always had a limited presence in this system; however, where 
there is adequate habitat, primarily water temperature related, there 
are bull trout. Studies also document that current habitat conditions 
are infinitely better than those of recorded history when the Jarbidge 
River environs were subjected to severe degradation from livestock 
grazing and mining. The records conclusively show that the Jarbidge 
River system was severely over-grazed by livestock between the mid-
1880's to about 1930. Gold was discovered in Jarbidge Canyon in 1909, 
with an influx of miners and other fortune seekers beginning to invade 
the area during the spring of 1910. The drainage was heavily prospected 
and mined for about the next 10 years with several successful mining 
and milling operations operating in the immediate vicinity of the 
river. During this period, living conditions for trout in the river 
were extremely poor, and trout survival and persistence was tenuous. If 
the fish could persist in the severely degraded habitat conditions of 
the late 1800's and early 1900's, they surely will flourish in the 
vastly improved conditions of today.
    Today, habitat surveys conducted by the Division of Wildlife 
document good to excellent aquatic and riparian habitat conditions 
throughout the system. Areas with localized grazing problems are being 
addressed and are seldom in critical bull trout habitat anyway. As you 
can see from the distribution maps, the majority of focal or critical 
bull trout habitat (designated in dark blue) is located deep within the 
Jarbidge Wilderness. Mining is non-existent in the area. While 
sedimentation from road construction and maintenance are always an 
issue with fish survival, those areas in the Jarbidge system with road 
issues are outside the critical bull trout habitats. Even the role of 
migratory fluvial bull trout is not overtly jeopardized by 
sedimentation from roads because of timing. Fluvial bull trout 
typically migrate to cooler water in the spring when high flows 
mitigate the effects of sediments. Spawning and rearing take place 
during the fall and winter months in protected upstream reaches of 
streams devoid of roads and their impacts.
    Ongoing fish surveys show fish populations including redband trout, 
mountain whitefish, suckers, dace and bull trout that are robust, well 
distributed, and stable or increasing relative to past surveys. This is 
consistent with, and supports, the data presented to the Fish and 
Wildlife Service at the time of the listing decision. The Division 
utilizes proven inventory methods and population estimation protocols. 
While not as statistically valid as research protocols, the methods 
used by the Division are considered totally adequate for management 
purposes, and they accurately portray the status and trend of fish 
populations. Competent, trained biologists of the Division of Wildlife 
have walked every mile of bull trout habitat in the Jarbidge River 
System. I would hazard to say we are the only ones who have done so. 
Division personnel are the most knowledgeable people on this planet 
about the bull trout in the Jarbidge. Our knowledge is formidable, not 
based on reading a report or a treatise on life history, but by walking 
the streams and handling the fish. From that practical knowledge base 
as well as our substantial data, Division biologists have maintained 
from the onset that bull trout populations of the Jarbidge are secure 
and continue to reside at low numbers in a disjunct distribution. That 
distribution represents the preferred flow and temperature criteria for 
year-around bull trout occupation. We are unaware of any declining or 
lost populations since we have been conducting surveys in the Jarbidge 
Drainage. I would remind you that Endangered Species listing criteria 
notes that ``rarity in and of itself is not an adequate reason for 
listing.''
    It is unfortunate that the South Canyon road issue and the bull 
trout are being considered together. There is little doubt that roads 
in the immediate vicinity of streams are characteristically deleterious 
to fish populations. Sedimentation, pollution and channelization 
normally associated with roads are real threats to fish populations. 
The Division of Wildlife has consistently opposed the redevelopment of 
the South Canyon road; however, our opposition is not based on the 
potential extirpation of bull trout, but the negative impact roads 
typically have on all aquatic fish and wildlife species. The 
redevelopment of the South Canyon road will not press the bull trout 
nor any other species in the river over the brink of extinction, nor is 
the threat of that redevelopment grounds for a listing of the bull 
trout as a threatened species under the auspices of the Endangered 
Species Act of 1973. We object strenuously to the improper and 
unethical use of bull trout as a surrogate.
    In conclusion, the Division of Wildlife, based upon scientific 
data, holds that the Jarbidge River bull trout populations are now and 
were at the time of their listing, viable. They are not teetering on 
the brink of extinction because of the actions of man. Indeed, the 
protection already afforded bull trout by the Jarbidge Wilderness 
designation has probably mitigated most human influences, leaving the 
future of bull trout in the Jarbidge River system subject only to 
natural evolutionary processes. If the fish disappears in the 
unforeseeable future, it will be because as a glacial relict, it is 
going the way of the glaciers. Until then, bull trout are an important 
part of Nevada's wildlife resources, and the Division of Wildlife 
stands ready to manage them accordingly, without the unnecessary 
protection of the Endangered Species Act.
    Thank you for this opportunity to testify. I will gladly entertain 
your questions.
Support Materials:
    1. LThe Status of Bull Trout in Nevada (Johnson 1999). [This 
document has been retained in the Committee's official files.]
    2. LThe Status of Bull Trout in Nevada (Johnson, Weller 1994). 
[This document has been retained in the Committee's official files.]
    3. LCopy of Division of Wildlife letter to the U.S. Fish and 
Wildlife Service opposing the ESA listing of bull trout dated October 
5, 1998. [This document has been retained in the Committee's official 
files.]
                                 ______
                                 
    Mr. Gibbons. Thank you, Mr. Weller. Excellent statement.
    Professor Murphy, welcome and happy to have you. I'm a 
University of Nevada alumni myself and proud that you are 
there. You might want to tell the audience your background and 
experience or your expertise so that when you begin your 
testimony they can get acquainted with you.

 STATEMENT OF DENNIS MURPHY, PROFESSOR, DEPARTMENT OF BIOLOGY, 
                   UNIVERSITY OF NEVADA, RENO

    Mr. Murphy. Thank you, Congressman Gibbons. I'll do that. 
My name is Dennis Murphy. I'm the Director of the Ph.D. Program 
in ecology, evolution and conservation biology--I won't give 
you the acronym to all of that--at the University of Nevada, 
Reno.
    Pertinent to this hearing I'm actually the Past President 
of the International Society for Conservation Biology. I served 
on the interagency's spotted owl scientific committee which was 
convened in the late '80's, early '90's, to deal with that 
issue. More recently I headed up the approach in California 
which created the natural community's conservation planning 
effort to take care of the California gnat catcher.
    I have also been team leader in your own backyard of the 
Late Tahoe watershed assessment, and we delivered that 1,100 
page assessment of the status of Tahoe's resources in 1999. And 
finally, I think quite pertinent to this hearing, I was 
selected by the National Academy of Sciences to serve the GAO 
in the review of the desert tortoise listing and recovery plan 
on request of this same House Committee.
    In an effort to stay brief I'll skip a little of my 
background information beyond that to suggest that we have got 
technical experts on either side of me that are going to weigh 
in on many of these technical issues, but I did in these few 
comments want to set the listing of the bull trout in the 
context of other listings of species in the West. We should 
note that the Jarbidge bull trout with no more than eight 
extant demographic units is truly severely in peril by any 
measure. The sizes of the remnant populations are frightening 
small, and that is on the basis of accounts by all the experts. 
We're looking at dozens of fishes to hundreds of fishes in each 
of those eight demographic units.
    Those populations by any assessment are well within the 
range of expected stochastic and that is random events such as 
droughts, deluge, landslides and wildfires that commonly cause 
species to go extinct locally when populations are of those 
size. The apparent desperate sensitivity of the bull trout to 
environmental variation, its need for extraordinarily cold 
waters for reproduction, its highly fragmented distribution, 
its susceptibility to inevitable future climate changes, all 
make this species worthy of some Federal protection.
    There is a good question that might be asked, and we 
probably won't answer it here, but why was the species tendered 
threatened status and not the higher statutory and regulatory 
standard endangered status. The Jarbidge bull trout is by most 
measures more perilous in terms of its current circumstances 
than a great many listed endangered species. But instead it has 
threatened status, similar to the desert tortoise, the northern 
spotted owl, the marbled murrelet, and a number of other 
species that actually have multistate distributions.
    Listing of those species certainly were also controversial 
and received intense scrutiny including scientific review and 
legal challenge, and they like the bull trout were shown to be 
on a clear and unhalted slide toward disappearance. At the time 
of the listing the question of peril for the bull trout was not 
when--excuse me--was not when--excuse me--was not if but when 
the trout would actually vanish.
    Now perhaps lost in arguments over how many individual bull 
trout remain is the true measure of risk to the species. It is 
not its current status per se, but population trends that 
should concern us regarding the bull trout in the Jarbidge 
mountains and elsewhere. This species undoubtedly has declined 
from historical numbers of both population and of individuals. 
Much of that decline undoubtedly occurred before any of the 
counts that have been provided to the Fish and Wildlife Service 
were made from Nevada.
    But many key details, and this is important, many key 
details of trout biology and the state of the habitat to 
support it remain unknown. Those uncertainties don't compromise 
or invalidate the listing decision, but they do challenge 
planners who should right now be working to recover the species 
and remove it as promptly as possible from the Federal list.
    Where current science is going to come up short in this 
controversial conservation effort is not in the listing per se 
but in the follow through, after the listing actions. We do not 
know enough today to chart a reliable course for this species 
to recovery. Recovery of the bull trout will have to be 
informed by new information on the species' physiological 
tolerances, on its ecological interactions with its habitat and 
other species, and on metapopulation, that is between 
population dynamics across the Jarbidge system.
    Until good science can reduce uncertainties about the bull 
trout, we will be able to do very little to improve its 
circumstances.
    The linked issues of science and uncertainty in the 
Endangered Species Act are clearly issues of importance to this 
Committee, as evidenced by this hearing and the GAO review of 
the desert tortoise actions. As you know, Congress required the 
Departments of Interior and Commerce that listings of species 
be informed, as you said, by the best available scientific and 
commercial data. Correspondingly, I can offer you no examples 
of species that have been listed without justification and 
without a preponderance of data, even when data are limited, 
that support that Federal action.
    That the Fish and Wildlife Service has never had to reverse 
a listing or has had courts intervene to do so reflects the 
typical use of the best available information in new listings. 
But listing is not where science is missing in act and 
implementation.
    The statute unfortunately offers no specific direction on 
the use of science and actions that accompany and follow 
listings, including the designation of critical habitat, the 
development and implementation of recovery plans, establishment 
of habitat conservation plans under section 10(a), and 
certainly in conversations between agencies under section 7. 
These are the real contexts in which the prohibitions of the 
Act's section 9 affect stakeholders, where the benefits of 
listing are supposed to serve the bull trout and where the real 
impacts of the listing are going to affect the Elko County 
residents and other Nevadans.
    The resource agencies struggle in these areas to bring good 
products forward, but absent explicit guidelines for applying 
science, without staff support trained in cutting-edge 
applications, and with virtually no funding to bring in outside 
expertise, scientific input into agency implementation efforts 
is inevitably hit and miss.
    It would be easy to direct the agencies just to submit 
their proposed actions to some version of scientific, and we 
can call it peer review, probably involving academic and 
consulting scientists, but the proliferation of agency actions 
in much of the West and certainly in California make that 
proposition unwieldy at best. The statute really needs to give 
the agencies clear direction for the use of science, under 
which circumstances and how science should inform their 
actions. In turn, the agencies need to draw roadmaps for 
bringing better and more reliable defensible knowledge to their 
decisions and actions through better articulated regulations 
and standards of performance.
    Having heard the bell, I wanted to close by pointing out 
that I would rather be remiss not to note that we have been 
blessed by Fish and Wildlife Service field office here. It is 
remarkably competent and reasonable. My experience in 
California has not nearly been as pleasurable as it is here in 
the state of Nevada.
    I want to keep in mind that the noise surrounding the 
listing of the bull trout is really more of a glaring exception 
than the rule in the state of Nevada, reminding folks that the 
Jarbidge bull trout was the first species restricted solely to 
Nevada that's been listed since 1985. The only listings in 
Nevada in the '90's other than the bull trout were actually the 
desert tortoise and the southwest willow fly catcher, and those 
listings were really precipitated because of circumstances 
beyond this state.
    And I wanted to point out that and the facts resonate that 
in 1993 this state was fourth in the Nation in candidates for 
endangered species listing, and remains today third out of 50 
states in amphibians at risk, and fourth in the Nation in 
plants and fish at risk. And I do think that we have shown 
elsewhere in the state, the mention of the Amargosa toad in the 
last panel is an example, the Tahoe yellowcrest up at Lake 
Tahoe, both species kept off the list through the cooperation 
of stakeholders, scientists, agency folks, both in land and 
resource, and I think if we can use those as exemplars of 
dealing with these problems, we're going to be in very good 
stead.
    [The prepared statement of Mr. Murphy follows:]

  Statement of Dennis D. Murphy, Director of the Graduate Program in 
   Ecology, Evolution and Conservation Biology at the University of 
                              Nevada, Reno

    My name is Dennis Murphy. I am director of the graduate program in 
Ecology, Evolution, and Conservation Biology at the University of 
Nevada, Reno. Pertinent to this hearing, I am past president of the 
international Society for Conservation Biology, served on the 
Interagency Spotted Owl Scientific Committee, was chief architect of 
California's Natural Community Conservation Planning Program, was team 
leader of the Lake Tahoe Watershed Assessment, and just two weeks ago 
served the National Academy of Sciences in assistance to the GAO in its 
review of the original listing and subsequent recovery plan for the 
desert tortoise - - that effort in response to a request from this 
House Committee to consider the reasonableness of that listing, much as 
you consider the reasonableness of the bull trout listing today.
    The Jarbidge bull trout is a species known to few Americans, but it 
is hardly the most obscure species to make headlines during the thirty 
years of conservation planning under the Endangered Species Act of 197 
3. The listing of an obscure fish, the snail-darter, was challenged in 
1976 all the way to the Supreme Court, where the strength of the then 
fledgling statute was affirmed. The first species to cause real 
conflict on private property was the mission blue, a butterfly the size 
of a dime found in an urbanized habitat in the San Francisco bay area. 
And a drab six gram bird that meows like a kitten, the California 
gnatcatcher, has required developers to spend hundreds of millions of 
dollars to mitigate its habitat losses, and created a crisis in land 
use that makes our Nevada conflicts look trivial. Those listings and 
those of many dozens of other species both grand and seemingly trifling 
have caused similar consternation among landowners, recreationalists, 
and committed opponents of big federal government. While opposition to 
the ESA and its implementation has often been as heartfelt elsewhere, 
it has rarely been quite as loud as here in Elko County, Nevada - 
which, of course, makes a measured discussion of science and bull trout 
that much more important.
    Other technical experts from the resource agencies and academia 
have weighed and will weigh in on the question of the appropriateness 
of the Jarbidge bull trout listing. I set my opinion here in the 
context of other animal listings in the western states during the past 
decade. The Jarbidge bull trout, with no more that eight extant 
demographic units (and probably no fewer than four, is severely 
imperiled by any measure. The sizes of the remnant populations are 
frighteningly small by the accounts of all the expert - - just dozens 
to hundreds of individual fish. These populations are well within the 
size range at which expected stochastic environmental events, droughts, 
floods, landslides, and wildfires very commonly cause species to 
disappear, even without the helping hands of humans. The apparent 
desperate sensitivity of Jarbidge bull trout to environmental 
variation, its need for extraordinarily cold waters for reproduction, 
its now highly fragmented distribution, its susceptibility to 
inevitable future climate changes, all make the species worthy of 
federal protection. And, actually, a fair question might be asked - - 
why was the species tendered threatened status and not the higher 
regulatory standard, endangered status. The Jarbidge bull trout is by 
most measures in more perilous circumstances than a great many listed 
endangered species; instead it has threatened status similar to the 
desert tortoise, northern spotted owl, marbled murrelet, and a number 
of other species with multi-state distributions and much greater 
likelihoods of survival. Listings of those species also were 
controversial and received intense scrutiny, including scientific 
review and legal challenge, and they like the Jarbidge bull trout were 
shown to be on a clear and unhalted slide toward disappearance. At the 
time of its listing the question of peril for the bull trout was not 
if, but when, this vanishing species would finally vanish.
    Perhaps lost in arguments over exactly how many individual Jarbidge 
bull trout remain is the true measure of the risk to the species. It is 
not its current status, but population trends that should concern us 
about the bull trout in the Jarbidge mountains and elsewhere. The 
species undoubtedly has declined from historical numbers of both 
populations and individuals in those populations. Much of that-decline 
may have occurred before any recorded studies of the fish in Nevada. 
But many key details of bull trout biology and the state of the habitat 
that supports it remain unknown. Those uncertainties do not compromise 
or invalidate the listing decision, but they do challenge planners who 
should be working to recover the species and remove it as promptly as 
possible from the federal list.
    Where current science is going to come up short in this 
controversial conservation effort is not in the listing of the bull 
trout but in the follow though, the after the listing actions. We do 
not know enough today to chart a reliable course for this species to 
recovery. Recovery of the bull trout will have to be informed by new 
information on the species' physiological tolerances, on ecological 
interactions between the trout and its habitat and other species, and 
on metapopulation dynamics across the broad Jarbidge landscape. Until 
good science can reduce uncertainties about the bull trout, we will be 
able to do very little to improve its circumstances.
    The linked issues of science and uncertainty in Endangered Species 
Act implementation is clearly an issue of importance to this committee, 
as evidenced by this hearing and the GAO review of the desert tortoise 
actions. As you know Congress required of the Departments of the 
Interior and Commerce that listings of species be informed by ``the 
best available scientific and commercial data.'' Correspondingly, I can 
offer you no examples of species that have been listed without 
justification and without a preponderance of data that support federal 
action. That the U.S. Fish and Wildlife Service and National Marine 
Fisheries Service have never had to reverse a listing, or had the 
courts intervene to do SO , reflects their typical use of the best 
available information in new species listings. But listing is not where 
science is missing in Act implementation.
    The statute unfortunately offers no specific direction on the use 
of science in actions that accompany and follow listings, including the 
designation of critical habitat, development and implementation of 
recovery plans, establishment of habitat conservation plans under 
section 10(a) of the Act, and conservation between agencies under 
section 7. These are the contexts in which the prohibitions in the 
Act's Section 9 affect stakeholders, where the benefits of listing 
serve the bull trout itself and where the real impacts of the listing 
affects Elko County residents and other Nevadans. The resource agencies 
struggle in these areas to bring good products forward, but absent 
explicit guidelines for applying science, without staff support. 
trained in cutting edge applications, and with virtually no funding to 
bring in outside expertise, scientific input into agency implementation 
efforts is inevitably hit or miss.
    It would be easy to direct the agencies to submit their proposed 
actions to some version of scientific ``peer'' review, probably 
involving academic and other consulting scientists, but the 
proliferation of agency actions in much of the west, and certainly in 
California, make that proposition unwieldy at best. The statute needs 
to give the agencies clearer direction for the use of science--under 
which circumstances and how science should inform their actions. In 
turn, the agencies need to adumbrate roadmaps for bringing reliable and 
defensible knowledge to their decisions and actions through better 
articulated regulations and standards of performance. The criteria 
promulgated by the ESA agencies in the Federal Register 9 March 1999, 
intended to provide clarifying guidance to habitat conservation 
planning, may provide model language for new statutory directives and 
regulations that invoke science.
    Out in the great expanses of rural Nevada, I would be remiss not to 
note that the state has have been blessed with a Fish and Wildlife 
Service field office that is almost uniquely competent and reasonable. 
The rant and fustian that has accompanied the listing of the bull trout 
is not the course of regular business in Nevada, it is a glaring 
exception. The Jarbidge bull trout is the only new federal listing of 
an organism restricted to Nevada since 1985. The only listings in 
Nevada in the 1990s other than the bull trout were the desert tortoise 
and southwest willow flycatcher, two species in much more trouble 
outside of our state. These facts should resonate in a state that 
ranked fourth in the nation for candidate species for protection in 
1993, and today ranks third in amphibians at risk, and fourth in plants 
and fishes vulnerable to extinction. Through cooperation between land 
and resource managers, scientists, and stakeholders, imperiled species 
have been protected without listing actions in Nevada. Two species at 
equally great risk of extinction as the bull trout, the Amargosa toad 
in Nye County and Tahoe yellow cress at Lake Tahoe, show that trading 
shovels for dialogue can have a win-win result, having benefitted from 
collaborative efforts and conservation strategies that have kept them 
off the federal list.
    I hope that the concern expressed by the Resources Committee in 
their request for review of desert tortoise and bull trout listings be 
expanded to consider science in other aspects of Endangered Species Act 
implementation and the funding that will be necessary to support that 
science. I am glad to answer questions about technical issues pertinent 
to the bull trout listing, and hope that experiences in conservation 
planning elsewhere in our great state can be used to inform the 
challenge of saving this very special fish species.
                                 ______
                                 
    Mr. Gibbons. Very good, Professor.
    Mr. Trafton, welcome. The floor is yours.

 STATEMENT OF STEVE TRAFTON, WESTERN NATIVE TROUT COORDINATOR, 
                        TROUT UNLIMITED

    Mr. Trafton. Thank you. Mr. Chairman, Trout Unlimited 
thanks you for the invitation to testify here today. Trout 
Unlimited is an organization of 130,000 members organized into 
more than 450 local chapters nationwide. Our mission is to 
conserve, restore and protect America's trout and salmon 
fisheries and their watersheds. We have a long history of 
working with local communities, landowners, and state and 
Federal agencies.
    Trout Unlimited has invested an enormous amount of 
volunteer effort in the Jarbidge River. Our local volunteers 
raised $10,000 to help build the bridge that replaced a culvert 
on Jack Creek that was preventing bull trout from moving 
upstream to spawning habitat. Trout Unlimited volunteers 
sponsored a fencing project on Jack Creek to protect the stream 
corridor. Countless hours have been spent working on stream 
habitat improvements and on participation in the management 
planning processes that affect the Jarbidge River's trout 
resource. We take great pride in these efforts.
    Our members come from a wide variety of backgrounds, but 
they share a common belief in the principle that healthy 
watersheds are at the heart of the great trout fishing 
opportunities that Americans enjoy. That principle is at the 
heart of our work in the Jarbidge River watershed.
    As your slide earlier pointed out, Trout Unlimited has not 
been directly involved in any of the listing processes or the 
litigation that resulted in the Jarbidge River bull trout's 
current listed status. Trout Unlimited has been involved since 
1995 in an effort to protect the bull trout from the harmful 
sediment loading that occurs as a part of the cycle of flood 
damage and road repair that has been at great expense to the 
taxpayer the South Canyon Road's primary legacy.
    Let me emphasize that our involvement has consisted from 
start to finish in participating in the public processes that 
have been established to allow citizens to have a say in the 
management of America's public natural resources. Trout 
Unlimited's attempts to highlight the precarious state of bull 
trout in the Jarbidge River certainly did shed light on the 
potential need for a listing under the Endangered Species Act. 
They were not the reason the species was listed however.
    That decision, as we heard earlier, had been made even 
before Elko County's Commissioners decided to take the law into 
their hands and repair the road regardless of the consequences. 
We're all familiar with what the first consequence of that 
action was, an emergency listing.
    It is worth noting that biology aside, the County 
Commissioners' actions and attitudes are ongoing proof of, in 
the words of the Endangered Species Act, the inadequacy of the 
existing regulatory mechanisms protecting bull trout. In other 
words, the Elko County Commissioners didn't only put the trout 
listing on the fast track, they were also ensuring that the 
bull trout stays listed for a long time.
    Should the Jarbidge bull trout be a listed species? Let me 
state for the record that I am not a biologist. I and Trout 
Unlimited draw conclusions from the consultation of as wide a 
variety of experts as possible. In this case, the experts, with 
the notable exception of the Nevada Division of Wildlife, say 
that the species should be listed.
    To cite a handful of examples, the Humboldt-Toiyabe 
National Forest 1998 Environmental Assessment of proposed South 
Canyon Road repairs stated that, quote, ``It is premature to 
say that the population of bull trout in the Jarbidge River is 
stable,'' unquote. The Forest Service's Jason Dunham, a leading 
authority on bull trout, has reviewed the species status and 
the NDOW position on bull trout listing and twice in 1998 and 
again in 1999 concluded that NDOW's reasoning is flawed and 
that Jarbidge bull trout are indeed at risk.
    In 2000, a review of NDOW's position by the Western 
Division of the American Fisheries Society concluded that a 
listing was warranted.
    Finally, the U.S. Fish and Wildlife Service decided as far 
back as 1997, long before the South Canyon Road controversy 
erupted, that a listing was warranted.
    Science favors the listing.
    In Trout Unlimited's view, the purpose of today's hearing 
should not have been just another rehashing of an old topic. Is 
there sufficient empirical or modeling data to justify a 
listing? The experts answered that question a long time ago.
    Incidentally, anyone, anyone who believes that Jarbidge 
bull trout should be delisted can petition to delist the 
species. If there is sufficient information out there to 
convince a majority of the experts that a delisting is 
warranted, then so be it.
    I think we all know that right now that's not the case. Our 
focus today and our focus in the future should be on gathering 
whatever information we lack and making whatever improvements 
to habitat and management strategies that we can to ensure that 
Jarbidge bull trout can be delisted and stay delisted.
    Trout Unlimited's work in the Jarbidge watershed has had 
improved habitat and stable bull trout populations as its 
mission from the start. Our work might once have helped to 
provide a reason not to list bull trout. Our work can still set 
us on a path toward restoring the health and vitality of this 
unique population of game fish.
    Thank you, and I'm happy to answer any questions you might 
have.
    [The prepared statement of Mr. Trafton follows:]

    Statement of Steve Trafton, Trout Unlimited, California Chapter

    Mr. Chairman, Trout Unlimited thanks you for the invitation to 
testify here today. Trout Unlimited is an organization of 130,000 
members organized into more than 450 local chapters nationwide. Our 
mission is to conserve, restore, and protect America's trout and salmon 
fisheries and their watersheds. We have a long history of working with 
local communities, landowners, and state and federal agencies.
    Trout Unlimited has invested an enormous amount of volunteer effort 
in the Jarbidge River. Our local volunteers raised $10,000 to help 
build the bridge that replaced a culvert on Jack Creek that was 
preventing bull trout from moving upstream to spawning habitat. Trout 
Unlimited volunteers sponsored a fencing project on Jack Creek to 
protect the stream corridor. Countless hours have been spent working on 
stream habitat improvements and on participation in the management 
planning processes that effect the Jarbidge River's trout resource. We 
take great pride in these efforts. Our members come from a wide variety 
of backgrounds, but they share a common belief in the principle that 
healthy watersheds are at the heart of the great trout fishing 
opportunities that Americans enjoy. That principle is at the heart of 
our work in the Jarbidge watershed.
    Trout Unlimited has not been directly involved in any of the 
listing processes or the litigation that resulted in the Jarbidge River 
bull trout's current listed status. Trout Unlimited has been involved, 
since 1995, in an effort to protect the bull trout from the harmful 
sediment loading that occurs as a part of the mindless cycle of flood 
damage and road repair that has been--at great expense to the 
taxpayer--the South Canyon Road's primary legacy. Let me emphasize that 
our involvement has consisted, from start to finish, in participating 
in the public processes that have been established to allow citizens to 
have a say in the management of America's public natural resources. We 
have been surprised by the extreme reaction that our position in this 
debate has provoked. Let us recall the basic facts: This is a mile and 
a half of dead-end road leading to an outhouse.
    Trout Unlimited's attempts to highlight the precarious status of 
bull trout in the Jarbidge River certainly shed light on the potential 
need for a listing under the Endangered Species Act. They were not the 
reason that the species was listed, however. That decision had been 
made even before Elko County's commissioners decided to take the law 
into their hands and repair the road, regardless of the consequences. 
We are all familiar with what the first consequence of that action was: 
an emergency listing. It is worth noting that, biology aside, the 
county commissioners' actions and attitudes are ongoing proof of--in 
the words of the Endangered Species Act--the inadequacy of the existing 
regulatory mechanisms protecting bull trout. In other words, the Elko 
County commissioners didn't only put the bull trout listing on the fast 
track; they are also ensuring that the bull trout stays listed for a 
long, long time.
    Should the Jarbidge bull trout be a listed species? Let me state 
for the record that I am not a biologist. I, and Trout Unlimited, draw 
conclusions from the consultation of as wide a variety of experts as 
possible. In this case, the experts--with the notable exception of the 
Nevada Division of Wildlife--say that the species should be listed. To 
cite a handful of examples: The Humboldt Toiyabe National Forest's 1998 
Environmental Assessment of proposed South Canyon Road repairs stated 
that ``it is premature to say that the population of bull trout in the 
Jarbidge River is stable.'' The Forest Service's Jason Dunham, a 
leading authority on bull trout, has reviewed the species' status and 
the NDOW position on a bull trout listing and twice, in 1998 and 1999, 
concluded that NDOW's reasoning is flawed and that Jarbidge bull trout 
are ``at risk.'' In 2000, a review of NDOW's position by the Western 
Division of the American Fisheries Society concluded that a listing was 
warranted. Finally, the U.S. Fish and Wildlife Service decided as far 
back as 1997--long before the South Canyon Road controversy erupted--
that a listing was warranted. It is worth noting that the Service was 
motivated, in part, by the concerns expressed by the Nevada Division of 
Wildlife that angling pressure was resulting in the harvest of 
significant numbers of Jarbidge River bull trout.
    Science favors the listing. In Trout Unlimited's view, the purpose 
of today's hearing should not have been just another rehashing of an 
old topic. Is there sufficient empirical or modeling data to justify a 
listing? The experts answered that question a long time ago. 
Incidentally, anyone who believes that Jarbidge bull trout should not 
be listed can petition to delist the species. If there is sufficient 
information out there to convince a majority of the experts to support 
a delisting then so be it. We all know that that is not the case at the 
moment.
    No, our focus today, and our focus in the future, should be on 
gathering whatever information we lack, and making whatever 
improvements to habitat and management strategies that we can to ensure 
that Jarbidge bull trout can be delisted, and stay delisted. Trout 
Unlimited's work in the Jarbidge watershed--from fundraising for the 
Jack Creek bridge to participating in the public processes through 
which management decisions are made--has had improved habitat and 
stable bull trout populations as its mission from the start. Our work 
might once have helped to provide a reason not to list bull trout. Our 
work can still set us on a path towards restoring the health and 
vitality of this unique population of game fish.
                                 ______
                                 
    Mr. Gibbons. Thank you, Mr. Trafton.
    Mr. Bert Brackett from Idaho, Rogerson, Idaho. Thank you 
for driving all the way down here to Elko to participate in 
this.
    Bert, the floor is yours.

           STATEMENT OF BERT BRACKETT, CATTLE RANCHER

    Mr. Brackett. Thank you, Mr. Chairman, for inviting me to 
testify at this hearing. I'm Bert Brackett. I'm representing 
myself, my family and our ranching operation. I'm a fourth 
generation rancher, and my family has ranched in the area for 
over 100 years. Headquarters ranch is in Three Creek, Idaho, 
where we winter our cattle. We summer across the state line in 
Nevada.
    Our ranch like many others in the West is a combination of 
private, state, BLM and Forest Service lands, when combined 
together forms a viable economic unit and as such helps 
maintain open space, preserve natural landscapes.
    I would like to share with this Committee what seems to be 
a real success story. It is, however, a classic example of how 
advocacy science can be used to further an agenda.
    1993, bull trout numbers in Dave Creek, which is a major 
stream between the east fork and the west fork of the Jarbidge 
River, was estimated at 251 fish. For the next 8 years 
management practices stayed the same. Nothing changed except 
the bull trout listing. 2001, field investigation of Dave Creek 
reported about a thousand bull trout, over 400 percent 
increase.
    On the surface this might appear to be remarkable recovery. 
But the fact of the matter is it was two separate studies with 
two different objectives that gathered the science to support 
their agenda at the time.
    I would like to comment on the process that led up to the 
listing. In 1994, a bull trout working group was formed with 
the goal of being proactive, being ahead of the curve, trying 
to take actions that would head off possible listing under the 
Endangered Species Act. It was done in a collaborative fashion 
with a spirit of cooperation.
    That all came to an end when the Jarbidge bull trout were 
listed on emergency basis to stifle the Jarbidge shovel 
brigade. That was the end of the working group, as far as I 
know, and consequently, the efforts of the working group were 
largely wasted.
    Others will address the South Canyon Road situation so I'll 
limit my comments to effects on grazing. Listing under the 
Endangered Species Act opened up a whole new array of possible 
lawsuits and legal action. This past year we started to see 
radical extremist environmental groups begin to exploit the 
Act. We received a notice of intent to sue for grazing on our 
private lands. The charge is without merit, but when threatened 
we must defend ourselves. BLM and Forest Service also received 
notices of intent to sue which would force them to deny us 
water for our cattle which we have used for close to 50 years. 
The extremist goal is to end grazing on Federal land in the 
West, and Endangered Species Act has become the weapon of 
choice because it lends itself to harassment and opportunities 
for lawsuit.
    We have and will continue to fully cooperate with the land 
management agencies to protect natural resources including bull 
trout. For example, the biological assessment for ongoing 
activities stated that spawning starts in September, and since 
our cattle were present, that fish may be adversely affected.
    Our grazing permit has a season of use from July to 
October. We asked the Forest Service to modify our permit so we 
would remove cattle from the allotment by September 1st, 
thereby limiting the possibility of conflict. They would not 
modify our permit, but they did make the change in our annual 
operating plan.
    The burden from redundant overregulation on ranchers speaks 
to the socioeconomic impact caused by the listing. We have been 
in compliance with the rules and regulations, we're meeting the 
standards. So it's not about protecting the fish. This is about 
abuse of process with a purposeful intent to damage private 
citizens.
    The upper end of Jarbidge watershed is wilderness. The 
lower is wilderness study area, wild and scenic river and ACEC 
for big horn sheep. So it receives layer and layer of 
restrictions and protections. Streams have been evaluated for 
PFC and are in properly operating condition. In addition, there 
are water quality standards set by DEQ.
    For grazing, we have to meet the standards and guidelines 
as well as utilization levels on upland vegetation as well as 
riparian forage and shrubs. To add the full weight of 
regulation provided for in the Endangered Species Act is 
overkill. Most troubling is the additional avenues of 
harassment it opens up for radical environmentalists dedicated 
to ending grazing in the West.
    In conclusion, is the Jarbidge River population of bull 
trout truly threatened? Probably not. Should it be delisted? 
Most definitely. Should the Act be amended to require peer 
review science and to prevent many of the abuses the law 
currently allows? Again, most definitely. Thank you for 
allowing me to testify. Are there any questions?
    [The prepared statement of Mr. Brackett follows:]

     Statement of Bert Brackett, Flat Creek Ranch, Rogerson, Idaho

    Thank you Mr. Chairman for inviting me to testify at this hearing. 
I am Bert Brackett and am representing myself, my family and our 
ranching operation. I am a fourth generation rancher and my family has 
ranched in the area for over 100 years. Our headquarters ranch is in 
Three Creek, Idaho where we winter our cattle. We summer across the 
state line in Nevada. Our ranch like many in the West is a combination 
of private, state, BLM, and Forest Service lands. When combined 
together, it forms a viable economic unit and as such helps maintain 
open space and preserve natural landscapes.
    I would like to share with this committee what seems to be a real 
success story. It is a classic example of how advocacy science can be 
used to further an agenda. In 1993 Bull Trout numbers in Dave Creek 
(which is a major stream between the East Fork and West Fork of the 
Jarbidge River) was estimated at 251 fish. (Johnson and Weller1994) For 
the next eight years management practices stayed the same; nothing 
changed except for the Bull Trout listing. In 2001 a field 
investigation of Dave Creek by Burton, Klott and Zoelick reported an 
estimate of about 1000 Bull Trout or a 400% increase. On the surface 
this might appear to be a remarkable recovery, but the fact of the 
matter is it was two separate studies with two different objectives 
that gathered the ``science'' to support their agenda at the time.
    I would like to comment on the process that led up to the listing. 
In 1994 a Bull Trout working group was formed with the goal of being 
proactive, being ahead of the curve and trying to take actions that 
would head off a possible listing under the Endangered Species Act. It 
included numerous local, state, and federal agencies, affected ranchers 
and other interested public. There were several meetings a year; a 
number of problems identified; and projects undertaken to address the 
concerns. It was done in a collaborative fashion with a spirit of 
cooperation. That all came to an end on June 10, 1998 when the Jarbidge 
Bull Trout were listed on an emergency basis to stifle the Jarbidge 
Shovel Brigade. That was the end of the working group as far as I know 
and consequently the effort of the working group was wasted.
    Others will address the South Canyon Road situation so I will limit 
my comments to effects on grazing. Listing under the Endangered Species 
Act opens up a whole new array of possible law suits and legal action. 
This past year we started to see the radical extremist environmental 
groups begin to exploit the Act. We received a Notice of Intent to sue 
for grazing on our private lands. The notice says ``your actions have 
caused and will foreseeably continue to cause the killing, harming, 
harassing, capturing and or other forms of `take' of listed threatened 
Bull Trout''. The charge is without merit, but when threatened, we must 
defend ourselves. The BLM and Forest Service also received notice of 
intent to sue which would force them to deny us water for our cattle 
which we have used for close to fifty (50) years. The extremist goal is 
to end grazing on federal land in the West and the Endangered Species 
Act has become the weapon of choice because it lends itself to 
harassment and opportunities for lawsuits.
    We have and will continue to cooperate fully with the land 
management agencies to protect natural resources including Bull Trout. 
For example, the biological assessment for ongoing activity stated that 
spawning starts in September and since our cattle were present, that 
fish may be adversely affected. Our grazing permit has a season of use 
from July to October. We asked the Forest Service to modify our permit 
so we would remove cattle from the allotment by September 1 thereby 
limiting the possibility of conflict. They would not modify our permit, 
but did make the change in our annual operating plan.
    The burden from redundant over regulation on ranchers speaks to the 
socio-economic impacts caused by the listing. We have been in 
compliance with the rules and regulations and are meeting the standards 
so this is not about protecting the fish. It is about abuse of process 
with the purposeful intent to damage private citizens.
    The upper end of the Jarbidge River Watershed is wilderness. The 
lower is Wilderness study area, wild and scenic river and ACEC ( area 
of critical environmental concern) for Big Horn sheep so it receives 
layer upon layer of restrictions and protection. The streams have been 
evaluated for PFC and are in properly functioning condition. In 
addition there are water quality standards set by DEQ (Department of 
Environmental Quality). For grazing, we also have to meet standards and 
guidelines as well as utilization levels on upland vegetation as well 
as riparian forage and shrubs.
    To add the full weight of regulation provided for in the Endangered 
Species Act is overkill. Most troubling is the additional avenues of 
harassment it opens for radical environmentalists dedicated to ending 
livestock grazing in the West.
    In conclusion, is the Jarbidge River population of Bull Trout truly 
threatened--probably not. Should it be delisted--most definitely. 
Should the act be amended to require peer review science and to prevent 
many of the abuses that the law currently allows, again--most 
definitely.
    Thank you for allowing me to testify. Are there any questions?
                                 ______
                                 
    Mr. Gibbons. Mr. Brackett, I want to thank you again for 
coming all the way down to Elko to testify. You are from 
Rogerson, Idaho, and many of us as we listen to you understand 
now that the ESA, Endangered Species Act, is not just a problem 
here in Nevada but it is a problem universally around the West 
in particular. I do appreciate the fact that you have brought 
to us the stories of your family.
    I'm being asked by the reporter here to take a little bit 
of a break so that he can rest his fingers. So when we come 
back, we'll ask a few questions, but we would like to take 
about a 10-minute break right now.
    [recess.]
    Mr. Gibbons. This Resource Committee hearing will come back 
to order.
    I'd like to begin now with a few questions for this panel 
of witnesses that I have. I'd like to begin with Mr. Brackett 
and ask him, because he's testifying as to the fact of threats, 
litigation, restrictions, and if you would elaborate for us: 
What have they forced you to do on your private property with 
regard to these restrictions and lawsuits?
    Mr. Brackett. I think, you know--to preface my answer, you 
mentioned in your opening remarks, and it's been noted several 
other times, the grazing wasn't a problem, grazing wasn't an 
issue in the listing. As far as our private land, we have 
continued to develop offstream water to restrict access on the 
riparian areas, implement better or more managed grazing 
systems, rotation deferred.
    As far as what we are being forced to do, we don't know 
yet. We got the 60-day notice of intent to sue, and there 
hasn't been a follow-up on that.
    Mr. Gibbons. What group has given you notice to file suit?
    Mr. Brackett. Western Watersheds and High Desert.
    Mr. Gibbons. These are environmental groups?
    Mr. Brackett. They are.
    Mr. Gibbons. The issue of bull trout, obviously, there must 
be bull trout on your private property; is that correct?
    Mr. Brackett. They are not on my private--well, no, they 
are not on my private property. They are adjacent on my 
brother's private property on Dave Creek.
    Mr. Gibbons. Your brother's ranch there on Dave Creek?
    Mr. Brackett. We have some private property that is in the 
Dave Creek watershed that drains into Dave Creek.
    Mr. Gibbons. Does he graze cattle?
    Mr. Brackett. He does.
    Mr. Gibbons. Does he graze cattle on the property that is 
in question with the bull trout?
    Mr. Brackett. He does, and he has, and the family has for 
over 50 years.
    Mr. Gibbons. And yet, there is a substantial population of 
bull trout in the area?
    Mr. Brackett. That's what the surveys show. That's what 
we're being told.
    Mr. Gibbons. So the conclusion would be that the grazing 
and population of the bull trout have minimal impact with each 
other?
    Mr. Brackett. I think that would be a fair conclusion. Up 
until this time it's been compatible.
    Mr. Gibbons. I appreciate that.
    Mr. Trafton, I certainly recognize the good work your 
organization has done with regard to building the bridge and 
the money you have contributed to the population of bull trout. 
Nevada Division of Wildlife has now found bull trout above the 
Jack Creek bridge that you worked on. And I think that's good. 
I think that's the kind of action that will help with regard to 
the bull trout.
    I do have a second comment to make, and I don't know if any 
of the citizens here in the audience have read your written 
statement. I know I have. And I would only make one little 
recommendation about the attitude of the written words that are 
in there. They are not helpful to working together. They appear 
confrontational and caustic.
    And I don't think that when you write a comment and put it 
in the record, Congressional Record, that your organization, 
and I don't believe that, unless that is your own personal 
opinion, is best suited by a very confrontational approach. And 
so I just don't think that it's in the best interests to come 
up with a very caustic written statement. It's not helpful in 
terms of being able to facilitate working together. A very 
confrontational attitude develops, and I would just make that 
about your written testimony. Although it is going to be 
included in the record. I would just make that suggestion for 
you in the future when you do this.
    I wanted to ask you a question. You have 130,000 members. 
In how many states?
    Mr. Trafton. All 50.
    Mr. Gibbons. All 50 states. Is Trout Unlimited involved 
with the endangered Atlantic sturgeon in the Potomac River?
    Mr. Trafton. We are not. They are not a trout.
    Mr. Gibbons. But it's a fish.
    Mr. Trafton. It's a fish, yes.
    Mr. Gibbons. And you said that you were interested in all 
fish.
    Mr. Trafton. I said we were interested in America's trout 
and salmon resources and their watersheds.
    Mr. Gibbons. If you look at this map up here, Mr. Trafton--
and I don't know, you are not a biologist, I'm not a biologist, 
I'm a geologist--the canyon is 1500 feet wide, it's 1200 feet 
deep, and over the last hundred years, I don't know how many 
hundred thousand tons of soil have been washed down that canyon 
through the sediment in that stream. There was no road there, 
but it's a natural phenomena. Sediment deposition is not 
necessarily a road problem. Would you agree with that?
    Mr. Trafton. I would.
    Mr. Gibbons. So it isn't necessarily the road being a 
problem up there.
    Mr. Trafton. It's not necessarily the road being the 
problem, and I don't think we ever said that the road was the 
only problem that these fish face.
    Mr. Gibbons. I just wanted to make sure that you didn't 
list the problem as being the road because in your testimony it 
was the maintenance of the road that you indicated.
    Mr. Trafton. If I may clarify on a couple points. I 
mentioned the road is a problem because in the letter that I 
received inviting me to this testimony, I was specifically 
asked to comment on what our involvement in the listing process 
has been, and our involvement has been specifically involved in 
the road. So that's why I concentrate some remarks on that 
aspect of the problems facing bull trout.
    I should also say, just for the record, in reference to 
your suggestion that I be less caustic, personally I felt that 
my statement was probably not as caustic as some of the others 
that were given.
    No. 2, just for the record for the people who don't 
necessarily know what the difference between my written 
statement and my oral statement was, it was a difference of 
about four words. So what I wrote and what I said were exactly 
the same thing, and there's no difference, and I think that's 
an important distinction for everyone to know.
    Mr. Gibbons. Well, it's how it's taken, and the four words 
can be significant in meaning. I just wanted to bring that to 
your attention.
    Dr. Murphy, what's your opinion with regard to rarity as 
you heard Mr. Weller talk about as a cause or noncause for 
simply listing a species as endangered or threatened?
    Mr. Murphy. There's no question that rare species are in 
the forefront of listing decisions. There's also no question 
that our footprint on this earth is so substantial that all 
species rare and common are being impacted by them. I know that 
you have expressed interest in other circumstances regarding 
the expansion of weeds across the West, great scourge in the 
state of Nevada compromising our aquatic resources and so on. 
It may be that that ends up being the biggest threat to all 
species in the state of Nevada at one point or another, rare 
and common.
    It certainly is appropriate for us to recognize that some 
species have exceedingly narrow distributions, and there is 
literally nothing we can do to expand those distributions. 
Glacial relics like this species includes a listed butterfly in 
Colorado which is found only above 13,000 feet on the northeast 
slopes of Mount Uncompahgre. That species is being squeezed off 
the top of the mountain by climate change, and we are likely to 
lose that species. The Service decided to list that species and 
this species, invoking not only the rarity but the specifics of 
perceived threats.
    Mr. Gibbons. Let me ask a clarification of your statement 
because you said multistate distributions. Is there not a 
multistate distribution for the bull trout?
    Mr. Murphy. Well, I try to be very careful. The Jarbidge 
bull trout is a Nevada species. The listing in the coterminous 
48 states of a number of the DPS's or distinct population 
segments is of course a multistate challenge.
    Mr. Gibbons. Let me ask about the recovery, recovery plan 
for this. If the species habitat for the bull trout is 
principally, as you can see by the map up there, within a 
wilderness area that is very exclusive of most changes, I mean, 
it would be very difficult to change the habitat in that area 
by man, what recommendations would you have to improve a 
habitat that's in a wilderness area that is supposed to be 
untrammeled by man?
    Mr. Murphy. Well, as I pointed out in my written testimony, 
I'm afraid that we fall far short of where we would like to be 
in terms of an information base on this species. I'm not sure 
we know exactly what the needs are in terms of gravel size, 
large woody debris and all that goes with it.
    It's very clear that a highly focused research agenda 
coupled with an adaptive management plan where we start to 
amend streams where necessary to respond to what we learn about 
this species and a much more rigorous monitoring scheme frankly 
than we have employed previously, could add up to pushing this 
animal to the extent that we can recover it. We can't look for 
the species to appear in the Independence Mountains and the 
Pequots. It is going to be a species in the Jarbidge 
Wilderness.
    However, I think we can do things to secure this species. 
The only sad part of this process is I believe that the listing 
would have been unnecessary had the kind of cooperative 
ventures that have gone on elsewhere in this state been 
initiated before 1998, and this may be a model for how we don't 
want to deal with out incipient endangered species. I see no 
reason why a state this large with this much open space, this 
much Federal land has to suffer from Federal listings of 
species when stakeholders are so concerned about many of these 
species. Our capacity be able to put good science on the ground 
is there, and the land that resource management agencies do 
have the tools to be able to protect these species.
    Mr. Gibbons. Let me ask if you would do this for the 
Committee based on your experience. Would you submit to us your 
suggested language change for science, how it should be applied 
to the listing of an endangered species?
    Mr. Murphy. I'll struggle with that job description.
    Mr. Gibbons. You understand what we're trying to get at? 
You actually said that it should be science. Science is very 
vague in many cases and how it should be applied and what we 
understand.
    Mr. Murphy. I think we're experiencing here, in deference 
to both Trout Unlimited and Mr. Weller, that it's not just 
using the best available science but it's finding a way to 
interpret parsimoniously that information. Laying those data on 
the table aren't enough.
    Mr. Gibbons. That is why I'm asking how the science is to 
be interpreted. In other words, how is it applied and what 
science is needed. I think we have to be very specific because 
being vague in general has led us down this path to where now 
sometimes we see abuses in some cases.
    Mr. Murphy. Those of us who struggled with the Endangered 
Species Act believe the Congress left this area specifically 
vague so that there would be alternatives offered up to the 
agencies in invoking this statute. But as you pointed out 
earlier, small butterflies stopping landowners from carrying 
out otherwise lawful activities probably were not in the minds 
of the signatories who handed the legislation Christmas eve to 
President Nixon.
    Mr. Gibbons. Having read the Committee reports in 1973 on 
this issue, I can say that their idea was not the application 
of the endangered species as we see it today. It was to save 
the grizzly, it was to save the bald eagle and other larger 
species, not down to the endangered Steamboat buckwheat grass 
blade, or a small butterfly in some other area.
    Mr. Murphy. Those are the exact words of Senator Goldwater 
in 1974.
    Mr. Gibbons. Well, that was 1 year after it was enacted. So 
I can tell you, I wasn't there, but I have read them. And I 
agree with you on that.
    One final question, Dr. Murphy, and that would be: Do you 
know any organization, whether private or public, that has 
studied the bull trout in this area to the degree and depth 
that the Nevada Department of Wildlife has?
    Mr. Murphy. I can't answer that because I haven't seen the 
full record that the Fish and Wildlife Service reviewed in its 
listing package, but there is no question that the strongest 
presentation of data was that by NDOW in its sequence of three 
reports from 1990 to 1999. Now with that I'd like to add a 
caveat that one of the biggest shortcomings in the Endangered 
Species Act implementation that we have is the application of 
data in recovery processes, in deciding the fate of private 
lands under HCP's, and it's a lack of reliable data that often 
compromise us. The problem with the data set is not that there 
aren't data, but that the data have not been collected in 
experimental framework that allows the strongest possible 
conclusions of all sorts to be drawn from it, No. 1.
    And No. 2, we really lack a long time series. And you 
remember part of the argument here is not just how many trout 
but whether they are trending down or frankly whether they are 
trending up. And we just simply can't draw those conclusions 
from the current data base.
    Mr. Gibbons. Well, that's one of the problems with the 
listing actually because you don't have the population trends 
in the listing aspect, let alone the delisting, and that has 
led us to this point as well.
    Let me go talk to Mr. Weller and ask him a question. When 
did the State of Nevada begin, and you said you have actually 
done some of the studies and work in this area on the bull 
trout, when did the State of Nevada begin looking at this fish?
    Mr. Weller. Well, we have anecdotal records from clear back 
in the early 50's shortly after the then Department of Fish and 
Game was created. And we did that in conjunction with normal 
biological monitoring in the area. So we do have some. And I 
agree, there is not a lot of rigor in that data, but there is 
data from clear back as early as 1954.
    Mr. Gibbons. Have population trends been part of that data?
    Mr. Weller. Again, I would agree with Dennis, there is--as 
a management agency, we are bound by what we are able to do. We 
do not do research rigorous type investigations. We do 
management type investigations.
    And his point is well taken. The amount or the integrity of 
that data could come under question because it is not done to 
exacting statistical levels. But it is adequate for management, 
and that is what we do.
    To continue, I guess I would say that we have had that 
anecdotal information and data that we have gathered clear back 
into the 50's, but we realize that there was an issue coming 
here in the mid '80's and started an intensive look at the fish 
and used that look that culminated in the report of 1994 to 
summarize, to try to encapsulate that trend based on old. We, 
for instance, went back to old sites where we had contacted 
fish in the 50's and re-replicated those surveys. And that sort 
of thing from a management standpoint, our intent was to 
determine in fact are we in fact on a downward trend in this 
fish. We didn't see that.
    I would say also as we gotten deeper embroiled in this 
whole process, we have refined our methods significantly, going 
to the literature, going to research to find better ways of 
looking for fish, more intensively and extending, for instance, 
our sample, the intervals, the intensity of our work to try to 
improve that. As we have done that over the years, over the 
last several years, we have been able to actually confirm our 
data and enlarge our estimates and gain more comfort with our 
estimates.
    Mr. Gibbons. Would you believe or would you agree that 
probably some status of a species, either prethreatened or 
preendangered that would permit a recognition of the need to 
study something would be a better way to force a scientific 
evaluation over a period of time rather than jumping head long 
into the listing of it as threatened and saying, well, we don't 
have the data but we'll leave it on the sidelines? What I'm 
saying is we need to look at the science before we list and 
make some sort of a recommendation to a species that is 
entitled to looking at science and data before we go forward 
with the process of listing it. That would be my question.
    Mr. Weller. Quite frankly, Congressman, that is exactly 
what we tried to do. We saw this on the horizon. We saw it was 
coming. West wide in the basin we knew we had the southern most 
distribution of bull trout, and we knew there were going to be 
under a lot of scrutiny. So we tried to establish that prior to 
that. We did collect data. And we did present that data to the 
Service, and we feel it was not--it was ignored.
    Mr. Gibbons. Let me ask a question. Does the Endangered 
Species Act itself listing, current listing, restrict, inhibit 
or otherwise obstruct any of the data collection and studying 
that you would do, normally do?
    Mr. Weller. As we have described earlier, when a species 
becomes listed, you step into a joint jurisdictional role for 
that species. Prior to that we had sole jurisdiction as the 
State of Nevada. Fish belonged to the people of the State of 
Nevada, we're that agency by law required to manage them. As 
the fish is listed we step into a joint jurisdictional role. We 
still have a role, but so does the Service.
    And now we fall under the auspices of the Endangered 
Species Act, and we have section 10 take requirements. We have 
section 7 consultation requirements. We have the potential 
funding sometimes of section 6 funding we can pull into that.
    So there are those issues that come into effect very 
definitely. All of a sudden we're--and quite frankly, we're 
answering to a new schoolmaster here.
    Mr. Gibbons. Well, where is your agency currently at with 
regard to the bull trout management plan?
    Mr. Weller. The Division of Wildlife developed a management 
plan, it's been referenced a few times, back in 1990. The plan 
was never truly gone through. It had never truly gone through a 
formal process, but we have that plan in place. The plan is 
currently in a state of revision bringing it up to date with 
our current knowledge base.
    But we realized in 1990 we had to have some--and what the 
species management plan does for us is give us a working 
document. It's our document as to what, how we value the fish, 
where we're going with it. And so that plan has been in 
existence all along. And I would say that the majority of work 
that we have done on the bull trout since the whole issue began 
is tied directly to that management plan.
    Mr. Gibbons. If I look at the southern exposure, the 
southern distribution of the bull trout, and the types of 
environment and habitat for the bull trout, is there any way to 
expand the area of the habitat and guarantee us or at least 
provide us with an assurance that we will expand the 
population? In other words, if the habitat area is the 
restricting part of the limited numbers of bull trout in the 
area, obviously, you are going to need to expand the habitat.
    Can you physically theoretically expand the bull trout 
habitat in this area to eliminate that one restriction?
    Mr. Weller. Again, we're back to the issue of nodal versus 
focal habitats. The critical habitat for bull trout are the 
focal habitats. Those are those habitats that are required for 
reproduction and rearing.
    The lower focal type or nodal type habitats lower down in 
the drainage, the majority of it are critical. I'm not 
demeaning them at all. They are very important.
    And there is a role of the population. The population needs 
those nodal habitats as well as the focal ones. However, they 
are not the critical habitats that are going to cause the 
demise of the fish.
    To answer your question, I believe that there's very little 
opportunity to enlarge focal habitats. Those in the dark blue 
on the map are areas that are very very exacting. The fish is a 
glacial relic, requires cold water, requires certain slopes, 
requires complexity of habitat. Those areas are there, they are 
established, and they are occupied.
    And so I would say there is very little opportunity to 
increase focal habitats. Nodal habitats, there are some issues. 
We could deal with road issues down below. And we could do some 
better work in best management practices, et cetera, that could 
help those nodal habitats. And I would recommend that we do do 
that.
    But my issue becomes the threats. There are no threats to 
the primary areas where they need to be. So we really don't 
have opportunities there.
    Mr. Gibbons. You indicated that there was no serious 
species competition within the stream itself.
    Mr. Weller. That's correct.
    Mr. Gibbons. So unfortunately, Judge Jones in Oregon didn't 
think so. He felt that there was some competition of species 
there as well. I'm not sure where that science came from. Maybe 
he was a fisherman. I can only guess. Maybe he visited the 
area.
    Mr. Weller. I wouldn't discount that there is no 
competition of fish species in the river. But they are all 
evolved. They are natural species. Those are the fish that have 
been there all along, and the bull trout have persisted in 
spite of that competition. Bull trout are tough little fish. 
They do OK by themselves.
    Mr. Gibbons. Let me ask the same question I asked Professor 
Murphy, if you wouldn't mind putting together a recommendation 
of how the law should apply the science to the listing of an 
endangered species and provide that to me, I would appreciate 
that.
    Mr. Weller. I can do that.
    Mr. Gibbons. I know it is a challenge.
    Mr. Weller. Very definitely.
    Mr. Gibbons. It is a big case. I would imagine stochastic 
events up there in the focal habitat area are probably, as you 
say, the biggest threat to the survival of this species, much 
of which we can't control. If you had an enormous fire up there 
that denuded the surface, erosion would run down, choke the 
stream with sediment, and you could have a terrible disaster on 
the species. Those types of situations are beyond the control 
of human beings. We have no means by which we can forecast nor 
prevent something like that.
    As you heard, the county is having a difficult time, as 
well as others, in the fire fighting and preparation, 
prevention as well as fire fighting, actual fire fighting 
capability in the area. I'm very concerned that some of the 
byproduct of listing is actually more detrimental to the future 
of a species in terms of restricting our ability to thin forest 
or to prevent forest fires, thereby causing more damage than we 
would be preventing it.
    Mr. Weller. I think your point that you made earlier was 
very well taken. I had the opportunity with my family to visit 
Mount Saint Helens this last year, and I would point out that 
the seven peaks of the Jarbidge are volcanic peaks. Indeed, 
there is volcanic activity there. When I looked at Mount Saint 
Helens, I realized what a stochastic event indeed is. Or 
meteor, as you mentioned, were to happen, it all becomes a moot 
point.
    So we live under that threat. There is always that fear 
that that could happen.
    If you look at the map, you see a distribution in two major 
drainages, and these two drainages are separated by some pretty 
rugged country. There is no question a good fire could break 
out at the top and sweep the whole thing, or one of the seven 
peaks could erupt and take the whole thing out. That could 
happen.
    But what we have to depend on, I believe, as we have looked 
at this, is the fact that there are--they are individual 
populations spread throughout those two drainages. If indeed a 
fire were to ravage, heaven forbid, the west fork of the 
Jarbidge, we have the metapopulation potential where fish from 
the east fork could recolonize the west fork. We could do that 
if it got to that.
    I also have discovered over the years--.
    Mr. Gibbons. Could you do that under the Endangered Species 
Act?
    Mr. Weller. It would be a challenge. We would have to do a 
lot of consultation, but I think it can be done in the spirit 
of cooperation, as mentioned.
    But I was going to say, with my number of years in 
fisheries biology, I have been taken back a number of times at 
the resiliency and the strength of fish populations. Fish 
survive fires. They are not totally gutted by a fire. I have 
seen them do it a number of times. Something like a bull trout 
in a high drainage protected by rock could very well survive a 
fire. And their population numbers respond very rapidly in 
proper conditions.
    The other thing I have noticed is the quick response of 
vegetation after fires.
    So I would say don't discount the fact that just the 
natural process will take care of itself. There is no doubt 
there have been fires in the Jarbidge in the past, major fires 
in the past, and the fish has persisted, and I would say that 
we shouldn't underestimate that ability of the fish to do that.
    So I would add those two things. We have the ability to 
respond because we are here. The systems are well protected, 
the populations are diverse and spread, and I'm not going to 
say it couldn't happen, but it's not the big fear that we would 
think, I don't think.
    Mr. Gibbons. Well, I wanted to thank all of you for your 
very enlightened testimony. It's certainly very helpful, very 
valuable to this Committee because our challenge is great. Our 
challenge is to come up how to make the ESA work before the 
Endangered Species Act destroys itself through misapplication 
or through abuse or through inability to move forward as 
sometimes is the case.
    Many times we have got species out there that are listed 
with just a label on them, and nothing is happening, no plans, 
there's no work being done, no studies being undertaken, and 
simply listing a species as endangered or threatened doesn't by 
itself save the species. I think that's the important part that 
we all have to look at.
    Trout Unlimited has done a great thing in building a bridge 
to help the species get to the focal areas. That's very 
important.
    But it is actions rather than words, and more so it's being 
able to work together on something like this rather than 
threaten lawsuits and bring everybody to a standstill while we 
spend valuable resources, valuable money, and oftentimes 
bankrupting people, in an effort to do something that I think 
collaboration and working ahead of time would have prevented 
and worked well with.
    I'm not going to ask any more questions. I did want to say 
as we close here, to everybody here, the purpose of this 
meeting was to bring out the Endangered Species Act in terms of 
an educational aspect to allow you to see how it's applied, 
some of the misinformation that is out there, and to learn a 
little bit more about it. It's also to have this Committee 
understand from the testimony of these people and other 
witnesses that have been here a better understanding of how to 
move the Endangered Species Act itself into a position that is 
intended to do what it is supposed to do and that is to help 
recover species, and we certainly want to do that.
    This brings us to the end of our hearing, and I did want to 
once again thank everybody, especially the audience who has sat 
through this very patiently for 3 hours as if it were a college 
course, and I hope you have gained as much as I have from this 
hearing.
    And with that, I want to thank each and every one of our 
witnesses today as well for their participation and bring this 
hearing to a close. Thank you, gentlemen.
    [Applause.]
    [Whereupon, at 3:56 p.m., the Committee was adjourned.]

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