[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                        ENDANGERED SPECIES ACT 
                            IMPLEMENTATION: 
                         SCIENCE OR POLITICS? 

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



                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                         Wednesday, May 9, 2007

                               __________

                           Serial No. 110-24

                               __________

       Printed for the use of the Committee on Natural Resources



  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                                   or
         Committee address: http://resourcescommittee.house.gov

                     U.S. GOVERNMENT PRINTING OFFICE

35-221 PDF                 WASHINGTON DC:  2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office  Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800  Fax: (202) 512-2250 Mail Stop SSOP, 
Washington, DC 20402-0001
















                     COMMITTEE ON NATURAL RESOURCES

               NICK J. RAHALL II, West Virginia, Chairman
              DON YOUNG, Alaska, Ranking Republican Member

Dale E. Kildee, Michigan             Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas              Ken Calvert, California
Frank Pallone, Jr., New Jersey       Chris Cannon, Utah
Donna M. Christensen, Virgin         Thomas G. Tancredo, Colorado
    Islands                          Jeff Flake, Arizona
Grace F. Napolitano, California      Stevan Pearce, New Mexico
Rush D. Holt, New Jersey             Henry E. Brown, Jr., South 
Raul M. Grijalva, Arizona                Carolina
Madeleine Z. Bordallo, Guam          Luis G. Fortuno, Puerto Rico
Jim Costa, California                Cathy McMorris Rodgers, Washington
Dan Boren, Oklahoma                  Bobby Jindal, Louisiana
John P. Sarbanes, Maryland           Louie Gohmert, Texas
George Miller, California            Tom Cole, Oklahoma
Edward J. Markey, Massachusetts      Rob Bishop, Utah
Peter A. DeFazio, Oregon             Bill Shuster, Pennsylvania
Maurice D. Hinchey, New York         Dean Heller, Nevada
Patrick J. Kennedy, Rhode Island     Bill Sali, Idaho
Ron Kind, Wisconsin                  Doug Lamborn, Colorado
Lois Capps, California               Vacancy
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South 
    Dakota
Heath Shuler, North Carolina

                     James H. Zoia, Chief of Staff
                   Jeffrey P. Petrich, Chief Counsel
                 Lloyd Jones, Republican Staff Director
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                

     
























                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, May 9, 2007...........................     1

Statement of Members:
    DeFazio, Hon. Peter A., a Representative in Congress from the 
      State of Oregon............................................     4
        The Wildlife Society Final TWS Position 
          Statement on the Endangered Species Act submitted for 
          the record.............................................   151
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     5
        Letter to the U.S. Fish and Wildlife Service submitted 
          for the record.........................................   116
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     1
        Prepared statement of....................................     2
    Sali, Hon. Bill, a Representative in Congress from the State 
      of Idaho...................................................     3
    Saxton, Hon. Jim, a Representative in Congress from the State 
      of New Jersey, Prepared statement of.......................   140
        Letter to DOI Secretary Kempthorne submitted for the 
          record.................................................   141
    Young, Hon. Don, a Representative in Congress from the State 
      of Alaska, Prepared statement of...........................   142

Statement of Witnesses:
    Clark, Jamie Rappaport, Executive Vice President, Defenders 
      of Wildlife................................................    13
        Prepared statement of....................................    14
        Response to questions submitted for the record...........    18
    DellaSala, Dominick A., Ph.D., Chief Scientist and Executive 
      Director, National Center for Conservation Science & Policy   154
        Prepared statement of....................................   156
        Response to questions submitted for the record...........   160
    Grifo, Dr. Francesca T., Ph.D., Senior Scientist and Director 
      of Scientific Integrity Program, Union of Concerned 
      Scientists.................................................    23
        Prepared statement of....................................    25
    Horn, William P., Attorney, Birch, Horton, Bittner & Cherot, 
      on behalf of the U.S. Sportsmen's Alliance.................   179
        Prepared statement of....................................   181
        Response to questions submitted for the record...........   183
    Rodd, Judith Schoyer, Director, Friends of Blackwater........   163
        Prepared statement of....................................   164
        Response to questions submitted for the record...........   171
    Ruch, Jeff, Executive Director, Public Employees for 
      Environmental Responsibility (PEER)........................    32
        Prepared statement of....................................    34
        Response to questions submitted for the record...........    45
    Scarlett, Hon. P. Lynn, Deputy Secretary, U.S. Department of 
      the Interior...............................................     6
        Prepared statement of....................................     8
    Young, John A., Biologist (Retired), National Oceanic and 
      Atmospheric Administration Fisheries and U.S. Fish and 
      Wildlife Service...........................................   173
        Prepared statement of....................................   176
        Response to questions submitted for the record...........   178

Additional materials supplied:
    Hallock, Robert J., Statement and chronology submitted for 
      the record.................................................   143
    Northern Spotted Owl Recovery Plan Options, October 18, 2006, 
      submitted for the record by The Honorable Jay Inslee.......   189
    Olson, Gail S., Ph.D., Letter submitted for the record by The 
      Honorable Jay Inslee.......................................   187


 OVERSIGHT HEARING ON ``ENDANGERED SPECIES ACT IMPLEMENTATION: SCIENCE 
                             OR POLITICS?''

                              ----------                              


                         Wednesday, May 9, 2007

                     U.S. House of Representatives

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to call, at 10:03 a.m. in Room 
1324, Longworth House Office Building. Hon. Nick J. Rahall, II 
[Chairman of the Committee] presiding.
    Present: Representatives Rahall, Young, Christensen, 
Napolitano, Holt, Grijalva, Costa, Sarbanes, Miller, Markey, 
DeFazio, Kind, Capps, Inslee, Baca, Sandlin, Gilchrest, Pearce, 
Brown, Heller, Sali, and Lamborn.

STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE 
          IN CONGRESS FROM THE STATE OF WEST VIRGINIA

    The Chairman. The Committee on Natural Resources will come 
to order, please.
    Last week, Julie MacDonald resigned her position as Deputy 
Assistant Secretary for Fish, Wildlife and Parks at the 
Department of the Interior, ending what many staff felt was a 
reign of terror. Unfortunately, when she packed up she left 
behind a lot of baggage, including an agency that seems bent on 
abdicating its mandated responsibilities under the Endangered 
Species Act to protect God's creatures for future generations.
    From changes in regulations to poorly developed legal 
reviews that have left the agency sorely vulnerable to attack 
in the courts, the evidence of a systematic effort to undermine 
the law and species protection is quite clear. This is an 
agency that seems focused on one goal--weakening the law by 
administrative fiat and it is doing much of that work in the 
shadows, shrouded from public view.
    For example, we know that the Department has been 
contemplating for some time a major rewrite of regulations to 
implement that law. We know this because a copy of draft 
regulations was leaked to the media. As Chairman of the 
Committee with oversight of this matter, I asked for copies of 
the same draft regulations, but received no response from the 
Department; that is, until Monday, two days before this 
hearing.
    That response from Director Dale Hall said, and I quote, 
``The Department has made no final decision on whether to 
propose any regulatory changes to the ESA.'' Yet, the letter 
includes a chart prepared, ironically, by the Center for 
Biological Diversity with the Fish and Wildlife Service's 
editorial notes describing their ``current draft proposal.''
    While Fish and Wildlife has gone to extreme lengths to keep 
these documents away from the Committee, special interest 
groups challenging ESA decisions have found it easy enough to 
get their hands on a version of them.
    Just last week, on May 1, 2007, the American Forest 
Resource Council had to amend a complaint it filed in court on 
March 7, 2007, citing a regulation that is not even on the 
books but is rumored to be under consideration--apparently, top 
secret consideration--at the Interior Department. Just how the 
timber industry was able to procure the draft regulation is a 
matter of much speculation.
    What is clear, however, is that the timber industry has 
better access to information from the Bush Administration than 
the People's Representatives in the Congress of the United 
States.
    Proposed changes to the regulations are not the only way 
the administration seeks to undermine the law. While much 
attention in recent days has focused on Julie MacDonald, the 
Inspector General issued a report that shed light on problems 
that run far deeper than those she caused and those will be the 
focus of much of this hearing today.
    For all of its talk about faith and religious values, I 
find it impossible to reconcile that public persona with this 
administration's flagrant lack of regard for the work of the 
Creator's hand. As well, I do not find pushing policies that 
imperil God's creatures and that place at greater risk of 
extinction plants that provide life-saving drugs to be in 
keeping with His grand design.
    For me to sit here and suggest that the Department is on a 
sad and irresponsible mission to undercut species recovery is 
an understatement. What we are seeing here--if we could 
actually see behind the cloak of secrecy surrounding the 
Interior Department--is a complete disregard for the very 
science that has equipped us to be responsible stewards of this 
earth with which we have been blessed.
    We must ask ourselves as a nation, how do we want this 
government to run the Endangered Species Program--entangled in 
politics, or enlightened by science?
    That concludes my opening statement.
    [The prepared statement of Mr. Rahall follows:]

            Statement of The Honorable Nick J. Rahall, II, 
                Chairman, Committee on Natural Resources

    Last week, Julie MacDonald resigned her position as Deputy 
Assistant Secretary for Fish, Wildlife and Parks at the Department of 
the Interior, ending what many staff felt was a reign of terror. 
Unfortunately, when she packed up she left behind a lot of baggage, 
including an agency that seems bent on abdicating its mandated 
responsibilities under the Endangered Species Act to protect God's 
creatures for future generations.
    From changes in regulations to poorly developed legal reviews that 
have left the agency sorely vulnerable to attack in the courts, the 
evidence of a systematic effort to undermine the law and species 
protection is quite clear. This is an agency that seems focused on one 
goal--weakening the law by Administrative fiat and it is doing much of 
that work in the shadows, shrouded from public view.
    For example, we know that the Department has been contemplating, 
for some time, a major rewrite of regulations to implement that law. We 
know this because a copy of draft regulations was leaked to the media. 
As Chairman of the Committee with oversight of this matter, I asked for 
copies of the same draft regulations, but received no response from the 
Department. That is, until Monday, two days before this hearing.
    That response from Director Dale Hall said, ``The Department has 
made no final decision on whether to propose any regulatory changes to 
the ESA.'' Yet, the letter includes a chart prepared, ironically, by 
the Center for Biological Diversity with the Fish and Wildlife 
Service's editorial notes describing their ``current draft proposal.''
    While Fish and Wildlife has gone to extreme lengths to keep these 
documents away from the Committee, special interest groups challenging 
ESA decisions have found it easy enough to get their hands on a version 
of them.
    Just last week, on May 1, 2007, the American Forest Resource 
Council had to amend a complaint it filed in court on March 7, 2007, 
citing a regulation that is not even on the books but is rumored to be 
under consideration--apparently, top secret consideration--at the 
Interior Department. Just how the timber industry was able to procure 
the draft regulation is a matter of much speculation.
    What is clear, however, is that the timber industry has better 
access to information from the Bush Administration than the People's 
Representatives in Congress.
    Proposed changes to the regulations are not the only way the 
Administration seeks to undermine the law. While much attention in 
recent days has focused on Julie MacDonald, the Inspector General 
issued a report that shed light on problems that run far deeper than 
those that she caused and those will be the focus of much of this 
hearing today.
    For all of its talk about faith and religious values, I find it 
impossible to reconcile that public persona with this Administration's 
flagrant lack of regard for the work of the Creator's hand. As well, I 
do not find pushing policies that imperil God's creatures and that 
place at greater risk of extinction plants that provide life-saving 
drugs to be in keeping with His grand design.
    For me to sit here and suggest that the Department is on a sad and 
irresponsible mission to undercut species recovery is an 
understatement. What we are seeing here--if we could actually see 
behind the cloak of secrecy surrounding the Interior Department--is a 
complete disregard for the very science that has equipped us to be 
responsible stewards of this Earth with which we have been blessed.
    We must ask ourselves as a Nation, how do we want this government 
to run the Endangered Species Program--entangled in politics, or 
enlightened by science?
                                 ______
                                 
    The Chairman. I recognize the Ranking Member, Mr. Sali.

   STATEMENT OF THE HONORABLE BILL SALI, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF IDAHO

    Mr. Sali. Thank you, Mr. Chairman.
    As someone who has spent a good deal of time reviewing the 
impact of the Endangered Species Act, I can assure everyone 
within the sound of my voice that no one who originally voted 
for this legislation ever envisioned that this Act would be 
used to smash the dreams of millions of Americans.
    Our forefathers who sacrificed everything for our freedom 
would be shocked to learn that Americans are unable to fully 
utilize their property because of a blind salamander, ferry 
shrimp, fountain darters, ground beatles and kangaroo rats. In 
fact, there are 2,489 domestic and foreign species listed under 
the Endangered Species Act. The Fish and Wildlife Service has 
designed critical habitat for 487 species, yet despite spending 
billions of dollars designating millions of acres for critical 
habitat and disturbing the lives of millions of property owners 
who must in some cases pay exorbitant fees to develop their 
land, only eight domestic species have ever been recovered in 
more than 30 years.
    There is no question that politics and not the Department 
of the Interior are running the Endangered Species Act, and it 
has been hijacked by misguided Federal judges and radical 
environmental organizations whose sole interest is not to 
recover species, but to gorge themselves on taxpayers' money.
    The Fish and Wildlife Service has not initiated a listing 
decision on its own since 1995. Instead of recovering species, 
the Service must spend its meager dollars preparing and 
defending itself against an endless barrage of lawsuits. It has 
gotten so bad that the Service has now hired a full-time 
attorney that does nothing except monitor the legal filings 
against the agency.
    This is not a new problem. It started with the Clinton 
Administration and has continued unabated in the Bush 
Administration. Organizations like the Center for Biological 
Diversity know that they can go to Federal court and sue the 
agency over a listing or critical habitat designation. They 
know they will win. They will be handsomely compensated for 
suing, and they can then hire more lawyers to file or threaten 
to file even more lawsuits.
    Meanwhile, species continue to languish under the 
Endangered Species Act with little, if any, hope of ever 
recovering. This Act has become a powerful weapon to stop or 
limit development in this country.
    Mr. Chairman, instead of criticizing political appointees 
within the Department of the Interior for doing their job, this 
institution would be better served by asking how we can improve 
the Endangered Species Act. There is no one who can objectively 
say that this program is working effectively with a less than 1 
percent recovery rate because the only entities that are 
profiting from the Act are those groups who endlessly sue the 
Fish and Wildlife Service and the National Oceanic and 
Atmospheric Administration.
    In the past four years, millions of dollars have been paid 
to litigants in hundreds of court cases. Just imagine if these 
funds had been used for the original purpose of the Act, which 
was to recover and then remove species from the list, it is 
time to stop this madness.
    Federal policymakers have a right to question the 
conclusions of career biologists. These employees are hard-
working, dedicated public servants, but they are not 
infallible.
    I look forward to hearing from our witnesses and want to 
hear their perspectives on how we can restore the Endangered 
Species Act to its original intent. Thank you, Mr. Chairman.
    The Chairman. The gentleman from Oregon, Mr. DeFazio.

 STATEMENT OF THE HONORABLE PETER A. DeFAZIO, A REPRESENTATIVE 
              IN CONGRESS FROM THE STATE OF OREGON

    Mr. DeFazio. Thank you, Mr. Chairman. Thank you for calling 
this hearing, particularly in light of recent revelations I 
believe this is very timely. I will be brief, but I recently 
gave a speech to the assembled timber industry in the Pacific 
Northwest, and I started with the quote, you know, ``Those who 
forget history are doomed to repeat it.'' And then I went on to 
talk about unintended consequences.
    Here we have an administration that has bent over backwards 
for industry, and some in industry think that this 
administration, by perverting science, by substituting 
political judgment for science is doing them a big favor. If 
you want to change the protections and the management of the 
land, you can't go beyond the existing law, and this 
administration clearly is attempting to do that.
    If you want to have a fair and honest debate, as the 
gentleman on the other side of the aisle recommended about 
reauthorization of the Endangered Species Act, and updating the 
Act, and modifications to it, we should have that. We haven't 
debated that issue since 1996, when Mr. Pombo and Mr. Young 
stopped short of a reasonable proposal from the other side of 
the aisle to update the Act with a mischievous proposal that 
was just so ridiculous that Newt Gingrich wouldn't even bring 
it to the Floor of the House.
    So here we are today fast forward. This administration is 
basically repeating everything done by the Bush One 
Administration in an attempt to provide favors to industry, and 
instead of providing favors what they created was a train 
wreck, a train wreck in my region that ended up in the courts, 
and a temporary suspension of all Federal timber harvesting, 
and they are about to repeat that in my region by again 
ignoring scientific and biological advice, and substituting 
political opinion improperly and probably illegally.
    So I am hopeful that this will be a wake up call both to 
the industry and to the administration, and that they don't do 
further damage and begin to comply with the law, and if we need 
to discuss and debate changes in the law, let us do that.
    Thank you, Mr. Chairman.
    The Chairman. The gentleman from Colorado, Mr. Lamborn.
    Mr. Lamborn. I have no statement at this time, Mr. 
Chairman.
    The Chairman. The gentlelady from the Virgin Islands, Ms. 
Christensen.
    Ms. Christensen. I have no statement either, Mr. Chairman.
    The Chairman. The gentleman from Arizona, Mr. Grijalva.

 STATEMENT OF THE HONORABLE RAUL M. GRIJALVA, A REPRESENTATIVE 
             IN CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Thank you, Mr. Chairman. Just to thank you 
for the hearing, and given the official distortion and 
manipulation that is now well chronicled that has happened to 
the Endangered Species Act, that has hampered recover, that has 
hampered a real look at what this Act should be and should be 
doing, I think this hearing is very timely and necessary.
    Hopefully, in the light of day and not in some back room, 
in a dark room, can we talk about the changes that need to 
occur in the Act, and the kinds of protections that need to be 
put in place with the bureaucracy so the distortion and 
manipulation that is well chronicled does not occur again, and 
toward that end, I thank you very much for this hearing, Mr. 
Chairman.
    The Chairman. We will now proceed with today's witnesses. 
The first panel is composed of the following individuals: The 
Honorable P. Lynn Scarlett, Deputy Secretary, Department of the 
Interior; Ms. Jamie Rappaport Clark, Executive Vice President 
of Defenders of Wildlife; Dr. Francesca T. Grifo, Senior 
Scientist and Director of Scientific Integrity Program, Union 
of Concerned Scientists; and Mr. Jeff Ruch, Executive Director, 
Public Employees for Environmental Responsibility
    Mr. Sali. Mr. Chairman?
    The Chairman. Yes.
    Mr. Sali. Mr. Chairman, I am in receipt of a statement from 
a deputy regional forester who apparently has taken issue with 
some statements that have been ascribed to him in the testimony 
of one of the witnesses that will be before us today.
    In light of that, Mr. Chairman, and given the high stakes 
potentially of this hearing that is being presented, I would 
ask that we swear in the witnesses that will appear before the 
Committee today.
    The Chairman. The Chair would like to allow the individual 
in question to submit his testimony, and pursuant to Committee 
Rule 4[f], the Chairman may, and I stress the word ``may'' 
administer oaths to any witness before the Committee, and it is 
a discretionary action and this particular Chairman has chosen 
not to swear witnesses in.
    Mr. Sali. Mr. Chairman, then I would like to point out that 
under the False Statements Accountability Act of 1996, 
witnesses should be aware that giving false testimony to 
Congress could result in penalties equal to that under the 
Federal perjury statute, five years in prison and up to 
$250,000 in fines.
    The Chairman. The witnesses may proceed. Deputy Secretary 
Scarlett, you may proceed. As with all witnesses, the Committee 
does have prepared testimony, and without objection it will be 
considered as read, and printed in the record, and witnesses 
are encouraged to keep their oral testimony five minutes in 
length.

         STATEMENT OF THE HONORABLE P. LYNN SCARLETT, 
       DEPUTY SECRETARY, U.S. DEPARTMENT OF THE INTERIOR

    Ms. Scarlett. Thank you very much, Mr. Chairman, and 
Members of the Committee. Thank you for inviting me to discuss 
the Department of the Interior's implementation of the 
Endangered Species Act.
    Secretary Kempthorne, the Department, and the U.S. Fish and 
Wildlife Service strongly embrace effective implementation of 
the ESA to fulfill its goals. As a life-long bird watcher, I am 
both professionally and personally committed to these goals.
    Secretary Kempthorne's success in addressing complex issues 
springs from his bipartisan approach to solutions. While a 
United States Senator representing the State of Idaho, he 
worked cooperatively with then Secretary Babbitt on 
legislation, Senate Bill 1180, the Endangered Species Recovery 
Act of 1997, legislation that emphasized species recovery. It 
required that listing decisions be based in empirical field 
tested and peer reviewed scientific data. It provided 
incentives and opportunities for state, landowners, and the 
public to participate in decisionmaking.
    These goals remain the centerpiece of Secretary 
Kempthorne's vision for implementing the Endangered Species 
Act.
    After Secretary Kempthorne's confirmation in May 2006, he 
directed the Department, with other agencies, to seek idea son 
cooperative conservation. This effort culminated in 25 
cooperative conservation listening sessions held throughout the 
country. Of the written comments we received, more than 80 
percent touched on the Endangered Species Act. Several 
consistent themes on the ESA emerged from those sessions.
    First, the ESA should focus on ecosystem health and species 
recovery; second, states should have a greater role in species 
protection; third, ESA tools should enhance cooperative 
conservation opportunities; fourth, ESA decisions must be 
informed by science; fifth, the ESA is often burdensome for 
landowners without corresponding significant benefits to 
species; and finally, regulatory terms and implementation 
practices are unclear and inconsistent.
    To address these comments, Secretary Kempthorne asked Fish 
and Wildlife Service Director Dale Hall, who is with me here 
today, to assemble a group of Fish and Wildlife Service 
employees with expertise in the ESA to develop draft ESA 
regulatory concepts for consideration.
    Recent administrations, Democratic and Republican, along 
with Governors, academics and conservationists, have identified 
aspects of the Endangered Species Act as currently implemented 
that limit efficiency, effectiveness, and conservation results.
    The Service's work related to threatened and endangered 
species has been in large part driven by lawsuits. The 
Service's most current estimate shows that it has 41 lawsuits 
involving listing decisions for seven species, a petition 
findings for almost 300 species, including a majority of the 
candidate species, critical habitat for six species, and five-
year reviews for 89 species.
    We believe available resources would be better spent 
focusing on actions that directly benefit species, such as 
developing and implementing recovery plans and forming 
conservation partnerships. The Service has greatly improved the 
Endangered Species Act administration in protecting species. A 
host of cooperative conservation grant programs promote 
partnerships with states, landowners and others. The Service, I 
believe, employs rigorous procedure to ensure that the best 
available science supports ESA determinations.
    I want to underscore Secretary Kempthorne's and my personal 
commitment to transparency, quality, and integrity of science 
used to inform ESA and other land management decisions. We do 
not promote, tolerate, or endorse suppression of scientific 
information.
    The Service continues its long record of vigorous 
implementation of the ESA. The Service intends to publish final 
listing determinations for 38 species and proposed critical 
habitat for 12 species in Fiscal Year 2008. The Service also 
focuses on recovery activity.
    There is no better institutional knowledge and expertise 
for making the ESA work on the ground than our Fish and 
Wildlife Service career employees, and their colleagues in NMFS 
with day-to-day responsibility for the ESA's implementation. It 
is these experts who prepared a draft ESA document that is 
still undergoing refinement. It focuses on enhancing state 
involvement in all aspects of the ESA with continued oversight 
and final decisionmaking resting with the Service and NMFS. It 
creates for the first time regulations focused on the recovery 
process. This documents differs in significant ways from the 
draft of an earlier document circulated by Salon.com.
    The document does not, for example, change the definition 
of jeopardy in any way as it exists in current regulations. 
Greater emphasis is placed on cooperative partnerships to 
implement the ESA. The Department does not now have a complete 
proposal for improving the ESA regulations. No decision has 
been made as to whether to proceed with proposing changes to 
implementing regulations.
    Any proposed regulatory changes would, of course, be 
proposed in the Federal Register for full public review and 
comment. We believe that if the public has a full opportunity 
to review proposals with the concepts now under consideration, 
they will affirm that these concepts will enhance the 
effectiveness of the ESA and its implementation.
    The Department and Service are strongly committed to 
carrying out our statutory obligations with regard to species 
recovery, and to working with our partners and with the 
Congress toward that important goal.
    I appreciate the hearing, and thank you very much. I would 
be happy to answer any questions.
    [The prepared statement of Ms. Scarlett follows:]

           Statement of P. Lynn Scarlett, Deputy Secretary, 
                    U.S. Department of the Interior

    Mr. Chairman and Members of the Committee, thank you for inviting 
me to appear before you today to discuss the Department of the 
Interior's implementation of the Endangered Species Act of 1973 (ESA). 
Secretary Kempthorne, the Department, and the U.S. Fish and Wildlife 
Service strongly embrace effective implementation of the ESA to fulfill 
its goals.
A Commitment to Recovery
    Secretary Kempthorne's success in addressing complex issues springs 
from his bipartisan approach to solutions. While a United States 
Senator representing the State of Idaho, he worked cooperatively with 
then-Secretary Babbitt on legislation, S. 1180, the Endangered Species 
Recovery Act of 1997, legislation that emphasized species recovery.
    The legislation was successfully reported by the Senate Environment 
and Public Works Committee although it was ultimately not enacted. 
Secretary Kempthorne's bill set strict requirements for prioritizing 
and developing recovery plans for listed species; required that listing 
decisions be based on empirical, field-tested, and peer-reviewed 
scientific data; and provided incentives and opportunities for states, 
landowners, and the public to participate in decision-making. These 
goals remain the centerpiece of Secretary Kempthorne's vision for 
implementation of the ESA.
    At his confirmation hearing before the Senate Energy and Natural 
Resources Committee last spring, then-Governor Kempthorne reiterated 
his strong desire to work collaboratively on ESA issues. He stated at 
that hearing, ``I am intent upon saving species. I am not content with 
triage, where you simply say that they are endangered and then you move 
on to list the next species. I will always ask, `What are we doing to 
actually restore species, instead of just listing them?''' Throughout 
his career as a Senator and Governor, the Secretary has focused on 
species recovery.
Background
    Some of the discussion today will no doubt focus on a draft of 
regulatory concepts obtained and published by an online magazine a 
little more than a month ago. That document was largely the product of 
discussions, in 2005, among agency officials of the Departments of the 
Interior and Commerce about ways to improve the ESA.
    It was a deliberative document that was not yet complete, nor had 
it been formally reviewed within the Department or by other relevant 
agencies, and not issued as a formal proposal. Many concepts at that 
time remained unresolved and under critical discussion.
    After Secretary Kempthorne's confirmation in May 2006, he directed 
that the Department, with other agencies, seek ideas on Cooperative 
Conservation and a range of issues. This effort culminated in 25 
Cooperative Conservation Listening Sessions, held throughout the 
country, where more than 30,000 people provided their input and ideas, 
through either written or spoken comments, on a range of issues, 
including the ESA. Of the written comments received, more than 80 
percent commented on the ESA, with many commenting on what they 
perceived as impediments to cooperative conservation.
    Several consistent themes on the ESA emerged from the Listening 
Sessions:
      The ESA should focus on ecosystem health and species 
recovery;
      States should have a greater role in species protection;
      ESA tools should enhance cooperative conservation 
opportunities;
      ESA decisions must be informed by science;
      The ESA is often burdensome for landowners without 
corresponding significant benefits to species; and
      Regulatory terms and implementation practices are unclear 
and inconsistent.
    To address these comments, Secretary Kempthorne asked FWS Director 
Dale Hall to assemble a group of career FWS employees with expertise in 
the ESA to develop draft ESA regulatory changes for consideration. The 
resulting draft document differs in significant ways from an earlier 
document circulated by salon.com.
    In the 20 years since ESA regulations were originally promulgated, 
the Service and the National Marine Fisheries Service (NMFS) have 
learned a great deal about how best to implement the provisions of the 
Act. Recent Administrations--Democratic and Republican--along with 
governors, academics, and conservationists have identified aspects of 
the ESA as currently implemented that limit efficiency, effectiveness 
and conservation results. A collaborative group composed of diverse 
interests last year reported to the U.S. Senate that ``All agree, at 
least in principle, that if new approaches could be identified that 
would both improve the effectiveness of habitat conservation efforts 
for species and reduce the burden upon landowners and other regulated 
interests, those new approaches should be embraced.'' In 2005, the 
Administration reviewed the Service's ESA program with the Program 
Assessment Rating Tool (PART) and found that the program lacked 
adequate performance goals and was limited by strict deadlines and 
regulations.
    Chief among the needed improvements is a faster rate of recovering 
species. Roughly 1,300 domestic species of plants and animals are 
listed as either threatened or endangered. To date, just 20 of these 
species have recovered and no longer need the protections of the Act. 
Just one out of three listed species is considered stable or improving, 
compared to last year.
    Another opportunity for improvement is to fulfill the Act's vision 
of robust partnerships with states, many of whom have significant 
expertise in wildlife and plant biology.
    Also, many landowners could be stronger conservation partners by 
maintaining habitat to attract at-risk species if we could clarify 
inconsistent practices and unclear terminology that are tangling us in 
litigation.
    Consider designation of critical habitat, which has received 
significant attention and critique in recent years. Former Secretary 
Bruce Babbitt wrote in a New York Times op-ed piece shortly after 
leaving office that, in its struggle to keep up with court orders, the 
Service had diverted its best scientists and much of its ESA budget 
away from more important tasks like evaluating candidates for listing 
and providing other protections for species on the brink of extinction.
    Protection of habitat is a key to sustaining and recovering 
endangered species. However, the critical habitat process as currently 
practiced under the Act is not an effective means of conserving 
habitat. The Service has characterized the designation of critical 
habitat as the most costly and least effective class of regulatory 
actions it undertakes.
    The Service's work related to threatened and endangered species has 
been in large part driven by lawsuits. The Service's most current 
estimate shows that it has 41 lawsuits involving listing decisions for 
7 species; petition findings for almost 300 species, including a 
majority of the candidate species; critical habitat for 6 species; and 
5-year reviews for 89 species.
    In sum, too much time is spent responding to litigation rather than 
putting in place on the ground actions to recover species. We believe 
available resources would be better spent focusing on actions that 
directly benefit species, such as improving the consultation process, 
developing and implementing recovery plans, and forming conservation 
partnerships with states, tribes, and private landowners.
Improving Administration of the ESA
    The Department has greatly improved ESA administration and 
protecting species, yet effectiveness remains constrained under current 
rules. Under the banner of the Department's Cooperative Conservation 
Initiative, a host of grant programs promote partnerships with states, 
landowners, and other citizen stewards to protect and enhance habitat 
for threatened and endangered species. These and related grant programs 
also help maintain, protect, and restore habitat in ways that help 
prevent the need to list species as endangered or threatened.
    For example, more than $67 million in grants was provided to 27 
states in 2006 to support conservation planning and acquisition of 
vital habitat for threatened and endangered fish, wildlife and plants. 
The grants, awarded through the Cooperative Endangered Species 
Conservation Fund, will benefit species ranging from orchids to bull 
trout that are found across the United States. Recovery Land 
Acquisition grants benefit 63 listed and 11 candidate species, 
including several Hawaii forest birds: the 'akepa, 'kiopo'au, and 
Hawaii honeycreeper. Habitat Conservation Planning grants will benefit 
111 listed species and 13 candidate species, including Canada lynx, 
grizzly bears, bull trout, bald eagles, gray wolves, west-slope 
cutthroat trout and Columbia River redband trout. Habitat Conservation 
Plan Land Acquisition grants benefit 40 listed species and 3 candidate 
species including, including several core populations of federally 
listed plants, such as San Jacinto Valley crownscale and slender-horned 
spineflower.
    The Department has also focused on other means of encouraging 
voluntary conservation. The Service uses such tools as Candidate 
Conservation Agreements, Candidate Conservation Agreements with 
Assurances, Safe Harbor Agreements, Habitat Conservation Plans and 
Conservation Banking, which provide for close cooperation with private 
landowners, state, tribal, and local governments, and other non-federal 
partners that are particularly important in our implementation of the 
ESA.
    Over the past few years, the Service has improved the Recovery 
Program, establishing a process whereby recovery needs of species can 
better be prioritized and addressed by Service Regions, and developing 
a new recovery implementation database for better tracking of recovery 
actions. The Service has streamlined Section 7 consultation processes 
for several kinds of activities, such as hazardous fuels treatment 
projects, habitat restoration, and recreational activities in the 
Pacific Northwest, cutting completion time for consultations under the 
program while maintaining species protections.
    We have improved the science that underlies all of our decisions, 
including decisions made under the ESA. I want to underscore Secretary 
Kempthorne's and my personal commitment to transparency, quality, and 
integrity of science used to inform ESA and other land management 
decisions. Science is the foundation of all of our conservation 
efforts. The Department, through the Service and the U.S. Geological 
Survey, has a long tradition of scientific excellence.
    The FWS works closely with the U.S. Geological Survey in a science 
partnership to enhance the administration of the ESA by the Service. 
Through a Science Support Partnership program, USGS addresses priority 
science needs of the FWS to inform their ESA decisions. The Service and 
the USGS together are developing the best scientific information 
available for the listing determination for the polar bear.
    Consistent with its long-standing policies on peer review and 
information standards under the ESA, the Service employs rigorous 
procedures to ensure that the best available science supports ESA 
determinations. The Department and the Service have established 
guidelines, following the direction of the Information Quality Act 
(section 515 of P.L. 106-554), to ensure and maximize the quality, 
objectivity, utility, and integrity of the information that we 
disseminate to the public. Service guidelines establish the policy and 
procedures for reviewing, substantiating, and correcting the quality of 
the information disseminated.
    Under no circumstance do we promote, tolerate, or endorse 
suppression of scientific information. Building upon the Service's ESA 
peer review policy established in 1994, we also follow the guidelines 
for federal agencies delineated in the ``Final Information Quality 
Bulletin for Peer Review,'' released by the Office of Management and 
Budget on December 16, 2004.
    In January 2005, the Service formed a Science Committee, to 
strengthen collaboration on science issues throughout the Service and 
to help identify needs and opportunities that cut across programs and 
regions. The Committee provides advice and recommendations to the 
Director concerning science needs, especially those related to meeting 
field needs for research, technical assistance, and scientific 
information and training.
    Committee members have been chosen for their distinguished service, 
with every attempt made to appoint those who represent a diverse array 
of Service programs, regions and scientific backgrounds. The 
Department's goal in taking these actions is to ensure openness and 
transparency in the science that underlies and informs our decisions.
    We also continue to address critical habitat, listing, and recovery 
planning priorities under the ESA. Starting in Fiscal Year 2004, the 
Service saw an increase in petition litigation. In response, the 
Department approved a shift of critical habitat funds to listing funds 
in order to comply with our petition deadlines in 2005 and 2006. The 
program expects continued litigation in Fiscal Years 2007 and 2008.
    For Fiscal Year 2008, the Service currently anticipates making 
final listing determinations for 12 species and proposed listings for 8 
species. In terms of critical habitat, the Service intends to publish 
final listing determinations for 38 species and proposed critical 
habitat for 12 species in Fiscal Year 2008. In Fiscal Year 2007, the 
Service currently anticipates publishing 17 final critical habitat 
rules, and 17 proposed critical habitat rules. The Service finalized 
critical habitat for 29 species and completed listing actions for 15 
species in Fiscal Year 2006.
    We are also rightly focused on recovery activities. For the past 
several years, the Service has increased the involvement of the public 
in recovery planning. Public involvement early on and throughout the 
planning process ensures recovery actions are feasible and establishes 
support for implementation of recovery actions following completion of 
a recovery plan. Scientific peer review and public review ensure plans 
are based on the best available science and information.
    The Service has developed recovery plans on approximately 87 
percent of listed species. The development of high quality recovery 
plans is a priority for the Service's Recovery Program. Recovery plans 
are essential to the effective and efficient implementation of recovery 
actions, not only by the Recovery Program, but by other Service 
programs, Departmental bureaus, other Federal agencies, and other 
partners.
    During Fiscal Year 2008, the Service expects to prepare recovery 
outlines for species added to the list in Fiscal Year 2007 and to 
complete final recovery plans for 10 species, resulting in 88 percent 
of species listed 2.5 years or more having approved recovery plans in 
Fiscal Year 2008. We estimate that, in Fiscal Year 2007, the Service 
will complete final recovery plans for 11 species. In Fiscal Year 2006, 
final recovery plans for 40 species were completed, including Atlantic 
salmon and 20 California vernal pool species; revised final recovery 
plans were drafted for 19 species; and draft plans for an additional 9 
species were published.
Endangered Species Act Success Stories
    We know that the measure of success under the ESA is recovery of 
listed species, and the cumulative years of ESA partnerships described 
above are achieving good results. In recent months, the Service 
announced the recovery of several species that have come to symbolize 
the promise of the ESA: grizzly bears, wolves, and bald eagles.
    Grizzly Bears. The Service announced at the end of March that the 
Yellowstone population of grizzly bears would be removed from its 
``threatened'' status on the list of threatened and endangered species. 
Grizzly numbers in the Yellowstone ecosystem have increased from an 
estimated population of 136 to 312, when they were listed as threatened 
in 1975, to more than 500 bears today.
    The bears will now be managed under a comprehensive conservation 
strategy developed by state and federal scientists and managers that 
includes intensive monitoring of Yellowstone bears, their food, and 
their habitat. The conservation strategy incorporates the best 
available science and allows state and federal agencies to adjust 
management in response to new scientific information or environmental 
and bear population changes. State and federal managers will continue 
to work cooperatively under this framework to manage and maintain 
healthy grizzly bear populations throughout the Greater Yellowstone 
area.
    The grizzly bear's remarkable comeback is the result of years of 
intensive cooperative recovery efforts between federal and state 
agencies, conservation groups, and individuals. Such cooperation is 
necessary, for these bears require a great deal of space.
    Gray Wolves. Recognizing the success of gray wolf efforts under the 
ESA and highlighting the cooperation and collaboration among states, 
tribes, conservation groups, federal agencies and citizens in affected 
areas, the Service announced in January 2007 that the western Great 
Lakes population of gray wolves was being removed from the list, and 
that it was proposing to remove the northern Rocky Mountain population 
of gray wolves from the list.
    When the wolf was first listed as endangered in the 1970s, only a 
few hundred wolves remained in Minnesota. Recovery criteria outlined in 
the Eastern Timber Wolf Recovery Plan include the assured survival of 
the gray wolf in Minnesota and a population of 100 or more wolves in 
Wisconsin/Michigan for a minimum of five consecutive years. The 
recovery plan identified 1,250 to 1,400 as a population goal for 
Minnesota. That State's wolf population has been at or above that level 
since the late 1970s, and the Wisconsin/Michigan wolf population has 
been above 100 since the winter of 1993-94, achieving the latter 
numerical goal in the recovery plan. Wolf numbers in the three states 
have exceeded the numerical recovery criteria established in the 
species' recovery plan.
    The minimum recovery goal for wolves in the northern Rocky 
Mountains is 30 breeding pairs and at least 300 wolves for three 
consecutive years, a goal that was attained in 2002 and has been 
exceeded every year since. The Service believes that with approved 
state management plans in place in Montana and Idaho, threats to the 
wolf population will have been reduced or eliminated in those states. 
The northern Rocky Mountain Distinct Population Segment includes all of 
Montana, Idaho and Wyoming, the eastern one-third of Washington and 
Oregon, and a small part of north-central Utah.
    While the Service has approved wolf management plans in Montana and 
Idaho, it has determined that Wyoming's state law and wolf management 
plan are not sufficient to conserve that State's portion of a recovered 
northern Rocky Mountain wolf population. If Wyoming's plan is not 
approved before the Service takes final action on this proposal, wolves 
would continue to be protected under the ESA in the significant portion 
of their range in northwest Wyoming, excluding the national parks, 
which have adequate regulatory mechanisms for wolf conservation.
    Bald Eagles. Finally, the Department continues efforts toward 
delisting the bald eagle, which has recovered in the lower 48 states 
from a population estimated at 417 nesting pairs in 1963, to a current 
population estimated at over 7,000 breeding pairs. The threats to the 
species have been reduced; reproductive success has increased to a 
healthy level; and the population is growing and distributed across 47 
of the lower 48 states (Vermont does not currently have a nesting 
population of bald eagles).
    In February of this year, the Service announced that the final 
decision on whether to delist the bald eagle would be postponed to no 
later than June 29, 2007. The additional four months will give the 
Service time to complete additional analyses related to the final rule 
and put in place management guidelines and procedures that will make it 
easier for the public to understand ongoing Bald and Golden Eagle 
Protection Act safeguards, ensuring that eagles continue to thrive once 
delisted.
Listening Sessions and the ESA Regulations
    After 25 Listening Sessions on Cooperative Conservation, in which 
the ESA was mentioned more than any other issue, the Service assembled 
a group of career employees, including Assistant Regional Directors 
from across the country and employees in the Washington Office's 
Endangered Species program, along with career professional staff from 
NMFS, to develop a draft of proposed regulations for consideration. 
There is no better institutional knowledge and expertise for making the 
ESA work on the ground than these career employees with day-to-day 
responsibility for the ESA's implementation. To ensure that legal 
advice was readily obtainable, representatives from the Department's 
Office of the Solicitor and the Department of Commerce and the National 
Oceanic and Atmospheric Administration's Office of General Counsel were 
also available.
    The draft document prepared by this team and which is still 
undergoing refinement, focuses on enhancing state involvement in all 
aspects of the ESA, with continued oversight and final decision making 
by the Service and NMFS; creating, for the first time, regulations 
focused on the recovery process; providing more clear and effective 
tools to private landowners, municipalities, cities, states, tribes and 
others to conserve and recover listed species through more efficient 
permitting processes; creating a more efficient process for federal 
action agencies to consult with the Service and NMFS under Section 7, 
and emphasizing the role all federal agencies have in recovering listed 
species; and providing guidance for the species listing petition 
process, clarifying language used in the listing and critical habitat 
processes, and recognizing existing conservation efforts when making 
listing decisions.
    This document differs in significant ways from the draft of the 
earlier document circulated by Salon.com. The current draft document 
strongly emphasizes the recovery process, the definition of 
``jeopardy'' as it exists in current regulations is unchanged; rather, 
greater emphasis is placed on cooperative partnerships to implement the 
ESA. The Department does not yet have a complete proposal for improving 
the ESA, and no decision has been made as to whether to proceed with 
proposing changes to the implementing regulations. Work continues on 
concepts and language that could become proposed rule changes.
    Our goal in this work is to greatly improve ESA implementation by 
strengthening its conservation purposes while also removing some 
disincentives that deter many from engaging in activities that would 
benefit species. Any regulatory changes would, of course, be proposed 
in the Federal Register for full public review and comment. We believe 
that, if the public has a full opportunity to review a proposal with 
the concepts now under development, they will affirm that these 
concepts will enhance the effectiveness of the ESA and its 
implementation.
    The Department and the Service are strongly committed to carrying 
out our statutory obligations with regard to species recovery and to 
working with our partners toward that important goal. Mr. Chairman, 
this concludes my prepared testimony. I would be pleased to respond to 
any questions you and other members of the Subcommittee might have.
                                 ______
                                 
    The Chairman. Thank you. Ms. Clark.

            STATEMENT OF MS. JAMIE RAPPAPORT CLARK, 
        EXECUTIVE VICE PRESIDENT, DEFENDERS OF WILDLIFE

    Ms. Clark. Thank you, Mr. Chairman, and Members of the 
Committee.
    I am Jamie Rappaport Clark, Executive Vice President of 
Defenders of Wildlife. Prior to coming to Defenders, I worked 
for the Federal government for almost 20 years, for both the 
Department of Defense and the Department of the Interior. I 
served as Director of the Fish and Wildlife Service from 1997 
to 2001. Thus, I have seen the Endangered Species Act from a 
variety of perspectives.
    I know the difficulties faced by the dedicated 
professionals in the Fish and Wildlife Service, the National 
Marine Fishery Service, and other Federal agencies implementing 
this law, and bring no criticism against these committed 
professionals currently administrating the ESA. However, I 
cannot ignore the damage that has been done to endangered 
species conservation by political appointees in the current 
administration.
    Rather than enhancing recovery efforts to expand on 
existing successes, I firmly believe that this administration 
is actually harming species recovery. It has undermined the 
scientific integrity of its programs with political 
interference and has slowly starved the program of needed 
resources. I realize that these are serious charges, but let us 
look at the facts.
    Fewer listing of endangered and threatened species have 
occurred in this administration than in any previous one, and 
that is not because there is a lack of candidates in serious 
need of protection. The 57 species protected in the last six 
years is just one quarter of the number protected in the four 
years of the first President Bush's administration.
    The top career professional position in charge of Federal 
endangered species efforts has been vacant for more than a 
year, and the position has yet to even be advertised for 
filling.
    The Fish and Wildlife Service programs involved in 
implementing the Endangered Species Act have lost at last 30 
percent of the staff that they once contained. There has been a 
consistent and continuing failure by the administration to 
request adequate resources for endangered species conservation, 
and the budgets presented to Congress. The Fiscal Year 2008 
request is at least 20 percent below the minimum level needed.
    The Interior Department's Office of Inspector General has 
confirmed that former Deputy Assistant Secretary Julie 
MacDonald was ``heavily involved with editing, commenting on, 
and reshaping the endangered species program's scientific 
reports from the field.''
    This went on for many years. The scope and magnitude of 
political interference revealed by IG interviews is 
unprecedented in my experience. More recently, as Dr. DellaSala 
details in his testimony, the administration appears to have 
interjected political considerations heavily and to recovery 
planning for the Northern Spotted Owl.
    I should say here that no one is arguing that science alone 
should dictate policy. Science is the foundation on which sound 
policy decisions depend, but when political interference tries 
to force the scientific process toward a particular answer, 
that foundation is undermined and ultimately you wind up making 
very bad policy choices.
    The problems are even broader than what I have described so 
far. Draft regulations dated as recently as two months ago 
proposed changes of such significance that they no doubt would 
seriously undermine the Endangered Species Act in numerous ways 
identified in my written statement.
    Defenders appreciates the opportunities provided by Deputy 
Secretary Scarlett to discuss the very broad outlines of ESA 
regulatory revisions. However, neither our two brief meetings 
nor our widely circulated two-page fact sheet have been 
particularly illuminating thus far. In fact, frankly, the 
discussions and the fact sheet have raised more questions and 
concerns than they have answered or allayed.
    Rather than to continue to work behind closed doors on a 
comprehensive rewrite of the Endangered Species Act 
regulations, we have asked the administration to work with a 
broad array of stakeholders to find common ground on ways to 
improve conservation of imperiled species before going forward 
with any proposal.
    Success in finding common ground hinges no openness and 
transparency. A key first step in that direction is for the 
administration to share the text of any changes in the 
Endangered Species Act regulations currently under 
consideration in a collaborative manner. In the absence of any 
inclusive process like this, however, it is only prudent for 
Congress and Defenders to focus on the changes we have either 
seen in draft or discuss with the administration, and the 
general theme in each case is a clear withdrawal of the 
services from their Federal responsibility to oversee 
implementation of the ESA. It is as though having starved the 
endangered species program and dismantled and demoralized its 
staff the administration now wants to wash its hands of 
carrying out the law all together by turning it over to states 
and other Federal agencies that, frankly, are ill equipped to 
take it on at this time.
    Mr. Chairman, the absence of meaningful congressional 
oversight of the administration's implementation of the 
Endangered Species Act for the past six years has certainly 
contributed to each of the problems I have described today. I 
am pleased that under your leadership and as today's hearing 
demonstrates, Congress is reasserting its rightful place in 
conducting oversight of this critically important law.
    I urge you to continue to make full use of this Committee's 
oversight authority in the weeks and months ahead, to insist 
that the administration work cooperatively with the Congress 
and interested stakeholders to protect and recover endangered 
species rather than hurriedly pursuing unilateral regulatory 
amendments to the Endangered Species Act.
    Thank you. I will be happy to answer any questions you or 
other members of the Committee might have.
    [The prepared statement of Ms. Clark follows:]

     Statement of Jamie Rappaport Clark, Executive Vice President, 
                         Defenders of Wildlife

    Mister Chairman and members of the Committee, I am Jamie Rappaport 
Clark, Executive Vice President of Defenders of Wildlife. Founded in 
1947, Defenders of Wildlife has over 500,000 supporters across the 
nation and is dedicated to the protection and restoration of wild 
animals and plants in their natural communities.
    As you know, prior to coming to Defenders of Wildlife, I worked for 
the federal government for almost 20 years, for both the Department of 
Defense and the Department of the Interior. I served as Director of the 
U.S. Fish and Wildlife Service from 1997 to 2001. Thus, I have seen the 
Endangered Species Act from different perspectives: that of an agency 
working to comply with the law; working for and then leading the agency 
charged, along with other federal agencies, states, and private 
landowners, with implementing the law; and now leading a conservation 
organization working to ensure that the law is fully implemented to 
conserve threatened and endangered plants and wildlife.
    The common lesson I have drawn from all of these experiences is 
that the Endangered Species Act is one of our most farsighted and 
important conservation laws. For more than 30 years, the Endangered 
Species Act has helped rescue hundreds of species from the catastrophic 
permanence of extinction. But the even greater achievement of the 
Endangered Species Act has been the efforts it has prompted to recover 
species to the point at which they no longer need its protections.
    Recovery is what the Endangered Species Act is all about. It is 
because of the act that we have wolves in Yellowstone, manatees in 
Florida, and sea otters in California. We can marvel at the sight of 
bald eagles in the lower 48 states and other magnificent creatures like 
the peregrine falcon, the American alligator, and California condors 
largely because of the act.
Recovery Efforts Hamstrung by Lack of Support and Political 
        Interference
    Mister Chairman, because I know the difficulties faced by the 
dedicated professionals in the U.S. Fish and Wildlife Service, the 
National Marine Fisheries Service, and other federal agencies 
implementing this law, I am reluctant to criticize those who are 
currently administering the Endangered Species Act. However, because I 
know how successful the act can be in recovering species and because of 
the deep regard I have for those dedicated professionals administering 
the act, I cannot ignore the damage that has been done to endangered 
species conservation under the current administration. Rather than 
enhancing recovery efforts to expand on existing successes, I firmly 
believe that this administration is actually hamstringing species 
recovery. It has undermined the scientific integrity of its Endangered 
Species Act programs with political interference and slowly starved the 
program of needed resources.
    Those are serious charges, but look at the facts:
    The top career professional position in charge of federal 
endangered species efforts has been vacant for more than a year, and 
the position has yet even to be advertised for filling.
    The Fish and Wildlife Service programs involved in implementing the 
Endangered Species Act have lost at least 30 percent of the staff they 
once contained. In some areas, that rate may be close to 50 percent.
    There has been a consistent and continuing failure by the 
administration to request adequate resources for endangered and 
threatened species conservation in the budgets presented to Congress. 
The Fiscal Year 2008 request is at least 20 percent ($40 million) below 
the minimum level needed.
    Fewer listings of endangered and threatened species have occurred 
in this administration than in any previous one and 277 species 
remaining on the candidate species list still await initiation of the 
listing process. The 57 species brought under the protection of the 
Endangered Species Act in the last six years is just one quarter the 
number protected in the four years of the administration of President 
George Herbert Walker Bush. Listing is the crucial first step in 
catalyzing public and private recovery efforts.
    The Interior Department's Office of Inspector General (OIG) has 
confirmed that former Deputy Assistant Secretary of the Interior for 
Fish and Wildlife and Parks Julie MacDonald was--heavily involved with 
editing, commenting on, and reshaping the Endangered Species Program's 
scientific reports from the field.'' The scope and magnitude of 
political interference revealed by OIG interviews is unprecedented in 
my experience. In one example cited by the OIG, a listing decision 
required by law to be rooted in science was instead ruled by the 
personal views of Deputy Assistant Secretary MacDonald, only later to 
be overturned by a court that refused to ignore the science. This and 
numerous other examples of political interference detailed in the OIG 
report have seriously compromised the integrity and credibility of the 
endangered species program.
    More recently, as Dr. DellaSala details in his testimony, the 
administration has interjected political considerations heavily into 
recovery planning for the northern spotted owl. A so-called 
``Washington oversight committee,'' which initially consisted of Deputy 
Assistant Secretary MacDonald and other senior-level administration 
political appointees, instructed the spotted owl recovery team of 
scientists and other experts to stop work on development of their 
conservation approach and develop a second approach that would offer 
greater ``flexibility.'' The increased flexibility option would result 
in weakening owl habitat protections by (1) delegating authority to the 
Forest Service and BLM to decide where to place blocks of owl habitat 
without creating lines on a map, (2) providing no information on total 
habitat acreages to be managed for owls, and (3) no longer anchoring 
spotted owl recovery to the Late Successional Reserves established 
under the Northwest Forest Plan. Frankly, the extent of this political 
interference in recovery planning so far exceeds anything I have ever 
encountered that it is astonishing for its sheer audacity.
An Administrative Rewrite of the Endangered Species Act Behind Closed 
        Doors
    Finally, the issues raised by the potential revisions to the 
administrative rules that guide implementation of the Endangered 
Species Act, some of which are dated as recently as March, are a source 
of great concern.
    We appreciate the opportunities afforded some of us to discuss the 
very broad outlines of Endangered Species Act regulatory revisions with 
Deputy Secretary Scarlett, Director Hall, and Fish and Wildlife Service 
and NOAA-Fisheries career staff. However, we have found neither our 
discussions nor the widely circulated, two-page fact sheet particularly 
illuminating.
    In fact, the discussions and fact sheet have raised more questions 
and concerns than they have answered or allayed. Moreover, in addition 
to the very general descriptions provided by the administration, we 
have draft regulations dated as recently as two months ago that propose 
changes of such significance that they would seriously undermine the 
ability of the Endangered Species Act to protect and recover imperiled 
species.
    Although the administration maintains that the leaked documents do 
not reflect its current intentions, the information they have provided 
so far contains scant information on which of these regulatory changes 
or portions of them remain on the table. Regardless, there are no 
guarantees that revisions off the table now will not find their way 
back to the table in any proposed or final rulemaking.
    As we noted in our meetings with Deputy Secretary Scarlett and 
Director Hall, we believe that the interests of endangered and 
threatened species recovery would best be served by working together 
openly on matters for which there is support among a wide variety of 
interests. In the absence of any inclusive process like this, however, 
it is only prudent that the Congress and organizations like Defenders 
of Wildlife focus on existing examples of specific administrative rule 
changes because we already have seen several iterations of them and we 
may see still more. These changes are of deep concern for at least four 
reasons.
    First, although early intervention to halt the decline of species 
is clearly advisable, the proposed changes would almost certainly have 
the effect of only allowing listing--and the conservation measures 
prompted by a listing--once species are in extreme peril. The effect of 
postponing corrective action will be to make recovery and eventual 
delisting of species even harder and more expensive than it already is 
and more unlikely to occur in any reasonable time frame.
    Second, over the years, the Section 7 consultation process between 
the Service and other federal agencies has been one of the act's most 
successful provisions in reconciling species conservation needs with 
other objectives. For example, progress towards the conservation of 
species such as the grizzly bear and piping plover would have been 
virtually inconceivable without the beneficial influence of Section 7. 
Yet, the proposed changes and fact sheet descriptions appear to reduce 
the scope of Section 7, reduce the role of the Fish and Wildlife 
Service in its implementation, and weaken the substantive standards 
that apply to federal agency actions. The net effect of these changes, 
like those described above with respect to listing, will almost 
certainly be to make species recovery less likely rather than more 
likely.
    Third, the draft regulations would re-define the term 
``conservation'' so that it no longer would be synonymous with recovery 
and remove the term ``recovery'' from many places in the regulations. 
Proposed rule changes, for example, would re-word the statutory 
language on recovery plan contents to remove statements that the goal 
of plan requirements is the conservation and survival of species and 
remove the term ``recovery'' and the language describing it as a goal 
from the reasons to delist a species. We find it difficult to reconcile 
these proposed changes with improving recovery of species under the 
Endangered Species Act.
    Fourth, the proposed regulatory revisions of March 2007 construe 
the Endangered Species Act mandate for federal-state cooperation to 
mean delegation of current federal responsibilities to the states. The 
proposed changes would give the Secretaries of the Interior and 
Commerce very broad discretion to grant states authority to assume 
responsibility for carrying out much of the endangered species program. 
The proposal would allow states to ``request and be given the lead role 
in many aspects of the Act, including, but not limited to, Section 4, 
Section 7, and Section 10 of the Act.'' The administration's fact sheet 
on the regulation changes appears to describe a similar delegation of 
responsibility to the states, a fact acknowledged in meetings with the 
administration.
    As stewards of the plants and animals within their borders, states 
are important partners in the conservation of threatened and endangered 
species. The Endangered Species Act gives states wide opportunities to 
create their own programs for protection and recovery, and to 
contribute to federal efforts as well. By increasing the legal 
protections given to imperiled plants and animals within their borders, 
state endangered species laws can complement the federal law, 
supplementing protection of species already listed so that recovery can 
be achieved. Strong state laws and state Wildlife Action Plans also can 
protect species not listed under the federal act, thereby lessening the 
need for federal listing.
    As of 2005, however, most of the existing 45 state endangered 
species acts merely provide a mechanism for listing and prohibit the 
direct killing of listed species. The scope of state prohibitions on 
take generally is narrower than the ESA's take prohibition. For 
instance, only nine states make it illegal to harm listed species. 
Massachusetts is the lone state to bar the ``disruption of nesting, 
breeding, feeding or migratory activity.'' Georgia is the only state to 
explicitly include destruction of habitat in its take prohibitions, and 
it doesn't apply to private lands. No mechanisms exist in 32 state 
endangered species laws for recovery, consultation, or critical habitat 
designation. Just five states require recovery plans. And five states 
have no endangered species law at all, simply relying on the federal 
act or nongame programs.
    In response to a nationwide survey conducted by Defenders of 
Wildlife and the Center for Wildlife Law on state endangered species 
protection in 1998, state agency staff identified a number of 
constraints to assumption of a greater role in conservation of 
endangered species. These included a general lack of funding and staff 
and a reluctance or lack of preparation to take on more 
responsibilities under the federal law.
    Most significantly, however, state agency staff pointed to the 
difficulties created by a patchwork of inconsistent and sometimes 
ineffective state laws in protecting and recovering species that occur 
in multiple states. This situation remains unchanged in 2007. The 
administration's draft regulations propose to resolve this dilemma by 
requiring that a state ``provide for coordination with all other States 
within the current range of the species affected by such granted 
authority or delegated activities.'' But this approach fails to address 
the concerns identified by state fish and wildlife agency staff. It 
also appears to place little value on the broad, interstate view and 
coordination that can be provided by the Fish and Wildlife Service or 
NOAA-Fisheries for species having multi-state distributions.
    The administration's proposed delegation of Endangered Species Act 
authority to the states is a change to the law of such significance 
that it should be brought to Congress for its consideration, not put in 
place by means of administrative fiat. There is no evidence in three 
decades of Endangered Species Act legislative history that Members of 
Congress or administration officials were sufficiently unhappy with the 
relative federal and state roles to even raise it as an issue on the 
six occasions in which Endangered Species Act amendments were discussed 
and adopted between 1976 and 1988.
A More Constructive Approach to Improving Conservation of Imperiled 
        Species
    The general theme of all the administrative rule changes we have 
seen from, or discussed with, the administration is a withdrawal of the 
Fish and Wildlife Service and NOAA-Fisheries from implementation of the 
Endangered Species Act. Having hamstrung the endangered species program 
by starving it of resources and injecting political considerations into 
its science, the administration's rewrite of the ESA rules now would 
have the Fish and Wildlife Service and NOAA-Fisheries shed the 
responsibility entrusted to them by Congress on the basis that the 
agencies lack sufficient resources and expertise.
    Defenders of Wildlife is committed to improving protection and 
recovery of endangered and threatened species under the Endangered 
Species Act, and we have worked with you, Mr. Chairman, and others 
toward that end. But all indications ranging from leaked documents to 
discussions with administration officials are that the administration 
is considering policy changes of such scope and magnitude that they 
should be brought to Congress for its consideration as amendments to 
the Endangered Species Act.
    Major changes to the Endangered Species Act are on a fast track 
behind closed doors. A spokesperson for the Interior Department was 
quoted in an April 26 Washington Times article as saying, ``When we put 
out proposed regulations, we will hold a press conference and tell 
everyone what we are doing.''
    We have asked the administration to adopt a different, more 
constructive approach. We have asked that they work with a broad array 
of stakeholders to find common ground on ways to improve conservation 
of imperiled species prior to going forward with any proposal. The 
success of the common endeavor we seek hinges on openness and 
transparency. A key first step in that direction is for the 
administration to share the text of any changes in the Endangered 
Species Act regulations currently are under consideration in a 
collaborative manner, not by holding a press conference and publishing 
proposed regulations.
    Mister Chairman, the absence of meaningful congressional oversight 
of the Administration's implementation of the Endangered Species Act 
for the past six years has contributed to each of the problems I have 
described today. As you are well aware, under previous leadership of 
this Committee, hearings were devoted more to undermining the 
Endangered Species Act, rather than making sure that those charged with 
implementing the law were doing so in a manner that would achieve 
successful conservation of endangered species. I am pleased that, under 
your leadership Mister Chairman, and as today's hearing demonstrates, 
Congress is reasserting its rightful place in conducting oversight.
    I urge you to continue to make full use of this Committee's 
oversight authority in the weeks and months ahead to insist that the 
administration work cooperatively with Congress and stakeholders rather 
than hurriedly pursuing unilateral amendments to the Endangered Species 
Act via administrative rulemaking. Preventing the extinction of 
important plants and wildlife is of such critical importance that close 
oversight is essential to assure the appropriate protection of our 
natural resources and responsible stewardship by this administration.
    Thank you for considering my testimony. I'll be happy to answer 
questions.
                                 ______
                                 

     Response to questions submitted for the record by Jamie Clark

Questions from the Republican Members
 (1)  During your four years as Director of the U.S. Fish and Wildlife 
        Service, did you always accept without question or modification 
        the scientific recommendations of our [sic] agency's wildlife 
        biologists?
    I sought to make sure I understood the scientific findings of the 
U.S. Fish and Wildlife Service's biologists as well as the limitations 
and level of uncertainty associated with those findings. I did not 
edit, comment on, or reshape scientific findings from those biologists.
 (2)  What is the role of the Deputy Assistant Secretary for Fish, 
        Wildlife and Parks in terms of reviewing listing petitions, 
        five year species reviews and designations of critical habitat 
        designation? Are they [sic] legally obligated to accept at face 
        value the scientific recommendations for listing, five year 
        reviews and critical habitat designations?
    In my experience, the Deputy Assistant Secretary for Fish, Wildlife 
and Parks did not personally review listing petitions or five-year 
species reviews. On occasion, individuals in this position were briefed 
to ensure that they were aware of such decisions and to assist them in 
understanding the scientific basis of the decision, and any potential 
ramifications that it might have. As I recall, designations of critical 
habitat required the approval of the Assistant Secretary for Fish, 
Wildlife and Parks. Under the Endangered Species Act, designation of 
critical habitat involves both scientific and economic recommendations. 
During my tenure, the Assistant Secretary did not seek to modify or 
influence the science underlying critical habitat designations, but may 
have chosen to address concerns about economic impacts in a manner 
consistent with the science but different than the approach recommended 
by the Fish and Wildlife Service.
 (3)  As you know and have testified, the Act requires that once a 
        species is listed a critical habitat designation is required. 
        Did you designate critical habitat for every species listed 
        during your tenure as Director? Why not?
    No. In 1995 Congress imposed a moratorium on all Endangered Species 
Act listing activities in a rider to a defense supplemental 
appropriations bill. That moratorium was in place for an entire year. 
No funding could be spent on any activities funded through the listing 
account, which included both actual species listings as well as 
critical habitat designation, with the result that an extensive backlog 
developed of more than 400 species in need of listing. Once the 
moratorium was lifted and the Fish and Wildlife Service could again 
spend funding on activities under the listing account, the Service 
found that it was ``not prudent'' to use limited listing account 
dollars on critical habitat designation before more of the backlogged 
species could be given at least the basic protections of the Act. Thus, 
the overriding priority was getting species onto the list, getting them 
under the Act's protection rather than designating critical habitat 
which, while important, was overshadowed by the need to provide the 
Act's protection to species in great need.
 (4)  In terms of staff time and resources, how big of an issue were 
        lawsuits filed against the Fish and Wildlife Service over 
        listing and designation of critical habitat? Was this a big 
        deal, an annoyance or a non-factor?
    Given the extensive backlog of more than 400 species in need of 
listing that resulted from the 1995 moratorium imposed by Congress on 
all Endangered Species Act listing activities, I believed then, and I 
believe now, that the litigation to compel critical habitat 
designation, while important, detracted from the Fish and Wildlife 
Service's more pressing and important efforts to get imperiled species 
onto the list and under the Act's protection.
 (5)  Ms. Clark, you testified previously before this Committee that as 
        Director you tried to improve the Act's effectiveness, increase 
        the role of states, tribes and landowners, have less regulation 
        and more incentives for property owners. In fact, you stated 
        that: ``We are constantly evaluating implementation of the 
        Endangered Species Act to ensure its implementation in as fair, 
        flexible manner as we can make possible''. Was that a political 
        decision you or the Secretary made? In the final analysis, 
        isn't that exactly what the current leadership of the Fish and 
        Wildlife Service is trying to accomplish?
    Under my leadership and that of Interior Secretary Bruce Babbitt, 
the only changes to the Endangered Species Act regulations were ones to 
provide support for conservation on private lands under section 10 of 
the law. These limited changes were proposed after extensive 
consultation with representatives of conservation and regulated 
community interests. In contrast, what has been leaked from this 
administration and provided in fact sheets and discussions indicates 
that major changes to nearly every aspect of Endangered Species Act 
implementation are actively under consideration. Changes have been 
drafted or described with respect to listing determinations, critical 
habitat designation, state involvement, section 7 consultation, and 
private lands conservation. In sum, these changes appear to exceed in 
scope and magnitude almost anything Congress has ever done in amending 
the law during the last 30 years. There has been no meaningful 
consultation to find common ground with conservation interests prior to 
formally proposing changes in how the Endangered Species Act is carried 
out. From the outside, it appears as though a wholesale re-write of the 
law is taking place in an effort to accomplish administratively that 
which former Representative Pombo could not accomplish legislatively.
 (6)  What is the value of critical habitat designation without a 
        recovery plan for the affected species?
    The value of critical habitat designation and every other 
conservation provision under the Endangered Species Act is enhanced by 
the completion of a recovery plan.
 (7)  When you were the Director of the Fish Wildlife Service did the 
        President's budget reflect the needs of the ESA programs?
    In general, yes. The lack of support by some in Congress to 
adequately fund listing and critical habitat designation, as evidenced 
by the 1995 moratorium and subsequent appropriation acts, adversely 
affected budget requests and funding for those activities.
 (8)  When you were the Director of the Fish and Wildlife Service how 
        many ESA lawsuits were there?
    I have no records of this statistic. This information likely can be 
supplied by the U.S. Fish and Wildlife Service.
 (9)  Do you think lawsuits effect [sic] the way the agency can do its 
        job to protect species?
    Yes. Lawsuits can both positively and negatively affect the way an 
agency does its job to protect species.
(10)  How many lawsuits has your organization, the Defenders of 
        Wildlife, filed against the FWS under the ESA to date? Would 
        you say that these lawsuits drive the implementation of the 
        Law? Do these lawsuits follow science or do they circumvent 
        science in the same way your organization is claiming the Bush 
        Administration is with their implementation policies?
    We do not tally the lawsuits filed by Defenders of Wildlife 
according to the statute being challenged. Most lawsuits involved 
challenges under multiple statutes in any case. Lawsuits by Defenders 
of Wildlife do not drive implementation of the ESA. Rather, these 
lawsuits seek to compel compliance with the Endangered Species Act in a 
manner that is in accord with the best available scientific 
information.
(11)  In your testimony, you state that you know how successful the Act 
        can be in recovering species. To my knowledge only 1 percent of 
        the species have been recovered and removed from the list. 
        Fifteen of those removed were due to data errors. How is 1 
        percent a success? What is your definition of recovery?
    Bringing grizzly bears, brown pelicans, peregrine falcons, and soon 
the bald eagle back to a point at which the protection of the 
Endangered Species Act is no longer necessary is my definition of 
recovery. Recent scholarly work by Scott et al. (2005) estimated that 
the Endangered Species Act had prevented the extinction of 227 species 
and found a positive correlation between the number of years a species 
is listed and improvements in its status. As I said in my testimony, 
these successes amply demonstrate how successful the Act can be in 
recovering species. In my view they ought to be celebrated, not 
denigrated.
(12)  You speak highly of career scientists and their ability to do 
        their jobs. The FWS has convened career scientists and managers 
        to develop these proposed changes to the ESA regulations. If 
        you support career individuals, why wouldn't you support the 
        Bush Administration's ground-up efforts utilizing career 
        individuals to develop regulations to improve the 
        implementation of the Act? If you are concerned about public 
        involvement, won't the Service need to go through a public NEPA 
        review process prior to implementing any changes? Why isn't 
        that sufficient?
    I do not believe that the comprehensive re-write of the Endangered 
Species Act regulations that is now underway came at the request or 
initiative of career Fish and Wildlife Service scientists and managers. 
I believe these career individuals are faithfully trying to provide the 
least damaging responses to policy directions given by political 
appointees that clearly are intended to largely remove the Service from 
its federal responsibility to oversee implementation of the Endangered 
Species Act. It's as though having starved the endangered species 
program budget and dismantled and demoralized its staff, the 
administration now wants to wash its hands of carrying out the law 
altogether by turning it over to states and other federal agencies that 
are ill-equipped to take it on.
    With respect to public involvement, in the long run it will be far 
more productive for the administration to work openly with stakeholders 
and Congress on those matters for which there exists broad support. 
There potentially are a number of such areas of agreement. Defenders of 
Wildlife and six other major conservation organizations have asked 
Secretaries Kempthorne and Gutierrez to work with us and other 
stakeholders to find common ground in conservation of imperiled species 
prior to going forward with any proposal. The success of the common 
endeavor we seek hinges on openness and transparency. A key first step 
in that direction is for the administration to share the text of any 
changes in the Endangered Species Act regulations currently are under 
consideration in a collaborative manner, not by holding a press 
conference and publishing proposed regulations. In any case, I welcome 
the support indicated in the question for subjecting any forthcoming 
proposal to the requirements of the National Environmental Policy Act. 
From everything I have seen so far, there is no question that the 
proposal under development by the administration will be a major 
federal action significantly affecting the quality of the environment.
(13)  During your tenure at Interior, is it your contention that the 
        Deputy Assistant Secretary or other officials never edited, 
        commented or reshaped ESA scientific reports?
    Yes.
(14)  Did the OIG find that Julie MacDonald had broken any laws?
    According to the Report of Investigation concerning Deputy 
Assistant Secretary of the Interior MacDonald, the Department of the 
Interior's Office of Inspector General, ``confirmed that MacDonald has 
been heavily involved with editing, commenting on, and reshaping the 
Endangered Species Program's scientific reports from the field'' and 
``determined that MacDonald disclosed nonpublic information to private 
sector sources, including the California Farm Bureau Federation and the 
Pacific Legal Foundation.'' The Report states further that ``the OIG 
Office of General Counsel's review of this investigation indicates that 
MacDonald's conduct violated the Code of Federal Regulations (C.F.R.) 
under 5 C.F.R. 9 2635.703 Use of Nonpublic Information and 5 C.F.R. 5 
2635.101 Basic Obligation of Public Service, Appearance of Preferential 
Treatment.''
(15)  Do you or do any of the officers or full-time employees of 
        Defenders serve on any FACA Committees for Dol or Commerce?
    Yes, as of May 20, 2007, the following:
      Michael Leahy, Department of Commerce Industry Trade 
Advisory Committee on Forest Products (ITAC 7)
(16)  How many lawsuits does Defenders currently have against either 
        Dol or Commerce? How many have they filed since you joined 
        them? How many had they filed in the 4 years prior to you 
        joining?
    The following is a list of cases on which we are currently a party 
against the Departments of the Interior or Commerce:
      Defenders of Wildlife v. Gutierrez, No 05-2191 (right 
whale)
      Butte Environmental Council v. Kempthorne, No 05-629 
(vernal pools)
      Stevens County v. DOI, No 06-156 (Little Pend Oreille - 
grazing)
      Defenders of Wildlife v. Kempthorne, No 06-180 (Fl black 
bear)
      American Bird Conservancy v. Kempthorne, No 06-02631 (red 
knot emergency listing)
      Cary v. Hall, No 05-4363 (African antelope)
      Communities for a Greater Northwest v. DOI, No 1:06-01842 
(grizzly intervention)
      State of Wyoming v. DOI, No 06-0245J (Wyoming wolf 
intervention)
      Defenders of Wildlife v. Kempthorne, No 04-1230 (lynx)
      Conservation Northwest v. Kempthorne, No 04-1331 
(Cascades grizzly)
      Defenders of Wildlife v. Kempthorne, No 05-99 (wolverine)
      Tucson Herpetological Society v. Kempthorne, No 04-75 
(flat-tailed horned lizard)
      The Wilderness Society v. Kempthorne, No 98-2395 
(National Petroleum Reserve - Alaska)
    We do not keep records of lawsuits filed in relation to the tenure 
of the Executive Vice President.
(17)  Why is litigation so necessary to protect species? Doesn't that 
        imply that the law needs revision?
    Failing all else, litigation may be necessary to protect species in 
those unfortunate circumstances in which agencies fail to follow the 
law.
(18)  You mention the Southern sea otter as a success of the ESA. 
        Congress enacted specific legislation detailing how DOI was 
        supposed to deal with an experimental population of 
        translocated animals. Yet, during your tenure at FWS, the 
        provisions of the law were not adhered to. In addition, your 
        agency did not request funding for the provisions in that law. 
        Because of FWS lack of adhering to the law, commercial 
        fishermen, those who were supposed to be protected from the 
        effects of the translocated sea otters were put out of 
        business. Do you see this as a success? Do you see this as a 
        precedent that will make it more difficult to get private 
        landowners to support reintroduction efforts of listed species 
        in the future? Are you aware that FWS has now decided to 
        declare the translocation program a failure and walk away from 
        their obligations under the law?
    The southern sea otter is an example of how, when the Endangered 
Species Act is applied properly and vigorously, significant progress 
can be achieved toward recovery. Although this species remains at risk 
and faces a number of significant threats, under the ESA significant 
strides have been made. Following the fur trade of the 1800s, the 
southern sea otter was believed to be extinct throughout its range. In 
the late 1930s, a small remnant population was discovered along the Big 
Sur coast. Although that population received protection under 
California law, it was not until enactment of the Marine Mammal 
Protection Act in 1972 and the Endangered Species Act in 1973 that 
federal law ushered in an era of increased protection and gradual 
population growth and range expansion. Especially notable in this 
regard was the use of the take prohibitions of these two laws in the 
mid-1980s to reduce high levels of mortality that were occurring as a 
result of incidental capture and drowning in fishing nets and the 
cooperative management approaches made possible with the State of 
California to impose fishery closures and gear restrictions to reduce 
take to comply with federal law. The Endangered Species Act also helped 
reduce the risk of oil spills by application of the section 7 
consultation process to impose various standards regarding vessel 
traffic and oil spill response along the sea otter range, as well as to 
address the threat of spills caused by offshore oil exploration and 
development. In addition, the ESA has been critically important in 
promoting a wide range of recovery actions under section 4, including 
the recovery plan issued in 2003. As a result of these actions, the 
southern sea otter population has increased from approximately 1,200 in 
the early 1980's to approximately 2,750 animals today. The species' 
range has expanded from Point Purisma (in the south) to Point 
Conception (in the south). The northern end of the range has stayed at 
around Half Moon Bay.
    At the time legislation was enacted to provide for translocation of 
southern sea otters, there were hopes that a population of southern sea 
otters at San Nicolas Island would grow to somewhere between 150 and 
500 individuals. That population size was never realized and current 
numbers approximate only 40 animals. The Fish and Wildlife Service used 
a team of experts, the Southern Sea Otter Recovery Team, to help them 
evaluate the efficacy of this program. The Service did not walk away 
from anything or fail to adhere to the law, rather they used the best 
available science and advice from scientific experts, which indicated 
that the future existence of southern sea otters would benefit from 
natural range expansion to the south, rather than impeding population 
growth through a ``no-otter'' or management zone. The Service's 
biological opinion under the Endangered Species Act found that 
``continuing the containment program and restricting the southern sea 
otter to the area north of Point Conception (which marks the current 
legal boundary between the parent range and the management zone, with 
the exception of the translocation zone at San Nicolas Island) is 
likely to jeopardize its continued existence.'' Thus, the provisions of 
the translocation law were fully adhered to by the Service because 
continuing enforcement of the so-called ``no otter'' or ``management'' 
zone would have resulted in a violation of the Endangered Species Act's 
prohibition on jeopardy. In fact, the commercial fishing industry filed 
a lawsuit in 2000 in an effort to force the Service to capture and 
remove sea otters from the sea otter enforce to the management zone. 
When the Service and environmental group interveners opposed this 
lawsuit, the commercial fishing group plaintiffs withdrew their case.
    In addition to the likelihood of jeopardy, enforcement of the 
management zone would have conflicted with the essential premise of the 
translocation law. As it was enacted in 1986, the understanding of the 
law was that the management zone would be enforced in exchange for the 
establishment of a successful experimental population at San Nicolas 
Island. That has not occurred, even to this day. Although the Service 
has published a draft EIS to evaluate what should be done about the 
translocation, the agency has not yet ``decided to declare the 
translocation program a failure'', although such a conclusion does 
appear to be justified by the lack of success with the experimental 
population. I assume that, if the Service reaches such a conclusion, it 
would not ``walk away from its obligations under the law'' but would 
instead follow applicable legal requirements and procedures in reaching 
a final decision and carrying out the necessary conservation and 
management actions.
    With regard to funding, the Service and other agencies typically do 
not seek specific earmarks for money for individual actions, such as 
those referred to in the question. In any event, the Service would not 
be allowed to seek funding to undertake an action that would violate 
section 7(a)(2) of the Endangered Species Act.
    No commercial fishing interests have been ``put out of business'' 
because of the translocation law. To the extent commercial fishing 
interests are experiencing financial difficulties, their problems are 
the result primarily of years of unsustainable harvesting practices and 
the effects of coastal pollution and habitat degradation. Defenders of 
Wildlife and other environmental groups have been exploring with 
commercial fishing groups various ways to address the common concern 
over coastal pollution and habitat degradation, which are problems that 
pose a serious threat to marine wildlife and the livelihood of fishing 
businesses.
    The experience with the sea otter translocation law has had no 
effect on the interest of private parties to support Endangered Species 
Act conservation programs. As the record of the Endangered Species Act 
implementation demonstrates, the private sector has responded well to 
species conservation efforts when appropriate regulatory and other 
incentives are available. Such voluntary participation post-dates the 
southern sea otter translocation program.
    Today, the southern sea otter continues to face a number of serious 
threats. These include, as identified in the Recovery Plan: habitat 
degradation (oil spills ans other environmental contaminants which lead 
to infectious disease) and human take (including shooting, entanglement 
in fishing gear, and harassment) and food resource limitations. Just as 
the Endangered Species Act helped bring the sea otter to the point of 
its current population size and expanded distribution, it is continuing 
to play a critically important role in moving forward with actions to 
hopefully achieve full recovery. Foremost among these is the 
implementation of the recovery plan, which is being carried out by a 
recovery implementation team representing all affected stakeholders. In 
addition, important research is underway, as directed by that plan in 
an effort to identify and halt the current threats to species recovery.
(19)  How many species currently listed under the ESA are species that 
        are not found in the United States? Why is it necessary to list 
        species under the ESA that are not found in the United States? 
        If the concern is about trade in those species, doesn't CITES 
        provide the necessary [sic]
    As of May 12, 2007, the U.S. Fish and Wildlife Service identifies 
567 species found in other countries that are listed under the 
Endangered Species Act. One favorable conservation consequence of 
listing these species under the Endangered Species Act is that federal 
agencies are required under section 7 to ensure that they do not 
authorize, fund, or carry out actions in other nations that would be 
likely to jeopardize these species' continued existence. Also, by 
listing foreign species under U.S. law, it can provide the necessary 
impetus for the parties to CITES to add a species to an appendix under 
the treaty and regulate international trade in that species.
                                 ______
                                 
    The Chairman. Thank you. Dr. Grifo.

   STATEMENT OF DR. FRANCESCA T. GRIFO, SENIOR SCIENTIST AND 
 DIRECTOR OF SCIENTIFIC INTEGRITY PROGRAM, UNION OF CONCERNED 
                           SCIENTISTS

    Ms. Grifo. Good morning. My name is Francesca Grifo, and I 
am a Senior Scientist and Director of the Scientific Integrity 
Program at the Union of Concerned Scientists, a leading 
science-based nonprofit working for a healthy environment and a 
safer world. I am also a biologist.
    Thank you, Mr. Chairman, Ranking Member Sali, and Members 
of the Committee, for the opportunity to speak to you about the 
problem of political interference in the work of Federal 
scientists.
    In March 2006, almost 6,000 biologists wrote a letter 
asking Congress to protect the integrity of science in the 
implementation of the Endangered Species Act. One of the act's 
great strengths is its foundation in sound scientific 
principles, and its reliance on the best available science. The 
biologists urged that objective scientific information and 
methods be used in listing species; that the habitat needs of 
endangered species are scientifically well informed; and that 
the Endangered Species Act standard of best available science 
must rely on impartial scientific experts.
    Losing species means losing the potential to solve some of 
humanity's most intractable problems, including hunger and 
disease. The Endangered Species Act is more than just a law--it 
is the ultimate safety net in our life support system.
    Unfortunately, time and again science has conflicted with 
political goals. Americans lose and politics wins. At the Fish 
and Wildlife Service science itself appears to be endangered. 
More than 12,000 scientists, including 52 Noble Laureates, have 
signed a scientist statement condemning political interference 
in science. UCS has compiled over 70 examples of the misuse of 
science in its A to Z Guide to Political Interference in 
Science.
    In 2005, in an attempt to assess the state of science at 
the Fish and Wildlife Service, UCS and public employees from 
Environmental Responsibility surveyed more than 1,400 Fish and 
Wildlife scientists. The scientists reported that pressure to 
alter scientific reports for political reasons has become 
pervasive. At field offices around the country, Fish and 
Wildlife scientists tell of being asked to change scientific 
information, remove scientific facts, or come to conclusions 
that are not supported by the science.
    More than half of all our respondents, and that is 233 
scientists, knew of cases where commercial interests have 
inappropriately induced the reversal or withdrawal of 
scientific conclusions or decisions through political 
intervention, and more than two out of three staff scientists--
again that was 303 scientists--and nearly nine out of ten 
scientist managers--knew of cases where U.S. Department of the 
Interior political appointees have injected themselves into 
ecological service's determinations.
    More than four out of five, that is 351 scientists, said 
that funding to implement the Endangered Species Act is 
inadequate. All those numbers should be zero.
    One scientist noted that, ``I have been through the 
reversal of two listing decisions due to political pressure. 
Science was ignored, and worse, manipulated to build a bogus 
rationale for reversal of listing decisions.''
    Another remarked that, ``Department of the Interior 
officials have forced changes in Service documents, and worse, 
they have forced upper level managers to say things that are 
incorrect.''
    While a third scientist wondered, ``Why can't we be honest 
when science points in one direction but political reality 
results in making a decision to do otherwise? Morale and 
credibility will improve if we are honest, rather than trying 
to twist the science to make politicians happy.''
    These survey results illustrate an alarming disregard for 
scientific facts among the political appointees entrusted to 
protect threatened and endangered species. There is evidence of 
politics trumping science in the listing of the Greater Sage 
Grouse, the Gunnison Sage Grouse, Gunnison's Prairie Dog, 
Roundtail Chub, Tabernaemontana Rotensis, Trumpeter Swan, and 
the White-tailed Prairie Dog. Politics won in the critical 
habitat designation of the Bull Trout, the Florida Panther, the 
Marbled Murrelet, the Pallid Sturgeon, Piping Plover, Interior 
Least Tern, Red Frog, and Salmon and Steel Head, and these 
lists are illustrative, not exhaustive.
    The Union of Concerned Scientists urges this Committee to 
enact reforms. To ensure the work of Federal scientists will 
not be subject to political manipulation, the Department of the 
Interior should increase transparency in the decisionmaking 
process to expose the manipulation of science, and make other 
political appointees think twice before altering or distorting 
documents.
    Open communication among scientists is one of the pillars 
of the scientific method. Department of the Interior scientists 
should be free to disseminate their research results. Interior 
should adopt media and communication policies that ensure 
taxpayer-funded scientific research is accessible to Congress, 
the media, and the public. Scientists should be proactively 
made aware of these rights.
    I want to thank the House for approving the Whistle Blower 
Protection Enhancement Act. It is now time for the Senate to 
act on this important piece of legislation.
    Finally, there are three immediate actions: Secretary 
Kempthorne should send a clear message to all political 
appointees that substituting opinions for science is 
unacceptable. In light of the demonstrated pervasiveness of 
political interference in the Endangered Species Act decisions 
during the past years, Interior should engage in a systematic 
review of all Bush Administration decisions to ensure that the 
science was not altered or distorted. At the very least, 
Secretary Kempthorne should require an immediate re-evaluation 
of decisions where political interference has been exposed.
    Given the number of recent attempts to undermine the 
Endangered Species Act science by Members of Congress and 
political appointees, congressional committees of jurisdiction 
must act to safeguard the role of science in protecting highly 
imperiled species.
    We look forward to working with the 110th Congress on 
bipartisan legislation, and other reforms to address this 
issue. Thank you very much. I will be happy to answer 
questions.
    [The prepared statement of Ms. Grifo follows:]

   Statement of Francesca T. Grifo, Ph.D., Senior Scientist with the 
       Union of Concerned Scientists Scientific Integrity Program

    This testimony is presented by Dr. Francesca Grifo, Senior 
Scientist with the Union of Concerned Scientists (UCS), a leading 
science-based nonprofit working for a healthy environment and a better 
world. The full testimony is submitted for the record. Dr. Grifo will 
summarize her statement for the Committee on the problem of political 
interference in the work of federal government scientists. This written 
testimony contains an overview of the problem of political interference 
in science, a summary of the UCS survey of U.S. Fish and Wildlife 
Service (FWS) scientists, a summary of documented abuses of science in 
Endangered Species Act decisions, and recommended government reforms 
needed to restore scientific integrity to the federal policy making 
process.
    Chairman Rahall, Ranking Member Young, and Members of the 
Committee, the Union of Concerned Scientists appreciates the 
opportunity to testify today on an extremely important issue--the 
federal government's implementation of the Endangered Species Act and 
whether the science used to enforce the law has been compromised.
    In 1972, President Richard Nixon asked Congress to pass ``a 
stronger law to protect endangered species of wildlife.'' 1 
But over the years, the law's lofty goals have been compromised. 
Indeed, in March 2006, 5,738 biologists wrote a letter asking Congress 
to protect the integrity of science in the implementation of the 
Endangered Species Act. 2 ``One of the great strengths of 
the Endangered Species Act is its foundation in sound scientific 
principles and its reliance on the best available science,'' their 
letter states. The biologists urged that ``objective scientific 
information and methods'' should be used in listing species, that the 
habitat needs of endangered species are ``scientifically well-
informed'' and that the Endangered Species Act standard of ``best 
available science'' must rely on ``impartial scientific experts.''
---------------------------------------------------------------------------
    \1\ Michael J. Bean, ``Endangered species, endangered act?'' 
Environment, 1 Jan. 1999.
    \2\ ``Letter from Biologists to the U.S. Senate Concerning Science 
in the Endangered Species Act.'' March 2007. Available online: http://
www.ucsusa.org/scientific_integrity/restoring/science-in-the-
endangered.html.
---------------------------------------------------------------------------
    ``Losing species means losing the potential to solve some of 
humanity's most intractable problems, including hunger and disease,'' 
the biologists concluded. ``The Endangered Species Act is more than 
just a law--it is the ultimate safety net in our life support system.''
    Unfortunately, time and time again, when scientific knowledge has 
seemed to be in conflict with its political goals, the current 
administration has manipulated the process through which science enters 
into its decisions. At many federal agencies and departments, including 
the Department of the Interior, this has been accomplished by placing 
people who are professionally unqualified or who or who have clear 
conflicts of interest in official posts and on scientific advisory 
committees; by censoring and suppressing reports by the government's 
own scientists, and by actually omitting or distorting scientific data.
Scientific Integrity
    Successful application of science has played a large part in the 
policies that have made the United States of America the world's most 
powerful nation and its citizens increasingly prosperous and healthy.
    Although scientific input to the government is rarely the only 
factor in public policy decisions, scientific input should always be 
weighted from an objective and impartial perspective. Presidents and 
administrations of both parties have long adhered to this principle in 
forming and implementing policies. Recent actions, however, threaten to 
undermine this legacy by preventing the best available science from 
informing policy decisions. UCS has compiled over seventy examples in 
its A to Z Guide to Political Interference in Science. 3
---------------------------------------------------------------------------
    \3\ Available Online: http://www.ucsusa.org/atoz.html.
---------------------------------------------------------------------------
    The misuse of science has occurred across a broad range of issues 
such as childhood lead poisoning, toxic mercury emissions, climate 
change, reproductive health, and nuclear weapons. Experts at the Food 
and Drug Administration (FDA) charged with ensuring the safety of our 
food and drug supply, report being pressured to alter their scientific 
conclusions. Scientists nominated to serve on scientific advisory 
boards report being asked about their political leanings. And 
scientists studying climate change have been effectively barred from 
communicating their findings to the news media and the public.
    Misrepresenting and suppressing scientific knowledge for political 
purposes can have serious consequences. For example, the FDA had 
pronounced the pain medication Vioxx safe, but as many as 55,000 
Americans died before it was withdrawn from the market. 4
---------------------------------------------------------------------------
    \4\ Dr. David Graham, Testimony to the Senate Finance Committee, 18 
November 2004.
---------------------------------------------------------------------------
    This misuse of science has led Russell Train, the EPA administrator 
under Presidents Nixon and Ford, to observe: ``How radically we have 
moved away from regulation based on independent findings and 
professional analysis of scientific, health and economic data by the 
responsible agency to regulation controlled by the White House and 
driven primarily by political considerations.'' 5
---------------------------------------------------------------------------
    \5\ Russell E. Train, ``The Environmental Protection Agency just 
isn't like it was in the good old (Nixon) days.'' 
www.girstmagazine.com, September 22, 2003.
---------------------------------------------------------------------------
    On February 18, 2004, 62 preeminent scientists articulated these 
concerns in a statement titled ``Restoring Scientific Integrity in 
Policy Making.'' 6 In this statement, the scientists charged 
the Bush administration with widespread and unprecedented 
``manipulation in the process through which science enters into its 
decisions.''
---------------------------------------------------------------------------
    \6\ Available Online: http://www.ucsusa.org/scientific_integrity/
interference/scientists-signon-statement.html.
---------------------------------------------------------------------------
    In the years since the statement was released, more than 12,000 
scientists have signed on to the scientists' statement. Signers include 
52 Nobel laureates, 63 National Medal of Science recipients, and 195 
members of the National Academy of Sciences. A number of these 
scientists have served in multiple administrations, both Democratic and 
Republican, underscoring the unprecedented nature of the current level 
of political interference in science. Individual scientists have been 
joined by several major scientific associations, including the American 
Association for the Advancement of Science, the American Public Health 
Association, the American Geophysical Union, and the Ecological Society 
of America, which have addressed the problem at society wide meetings 
and have begun to investigate how to defend science from political 
interference.
Voices of Fish and Wildlife Service Scientists
    Political interference has been pronounced in those federal 
agencies tasked with implementing the Endangered Species Act.
    In 2005, UCS and Public Employees for Environmental Responsibility 
(PEER) distributed a 42-question survey to more than 1,400 Fish and 
Wildlife Service (FWS) biologists, ecologists, botanists and other 
science professionals working in Ecological Services field offices 
across the country to obtain their perceptions of scientific integrity 
within the FWS, as well as political interference, resources and 
morale. Nearly 30 percent of the scientists returned completed surveys, 
despite agency directives not to reply--even on personal time.
    The scientists reported that pressure to alter scientific reports 
for political reasons has become pervasive at the U.S. Fish and 
Wildlife Service. At field offices around the country, Fish and 
Wildlife scientists tell of being asked to change scientific 
information, remove scientific facts or come to conclusions that are 
not supported by the science.
I. Political Interference with Scientific Determinations
    Large numbers of agency scientists reported political interference 
in scientific determinations.
      Nearly half of all respondents whose work is related to 
endangered species scientific findings (44 percent) reported that they 
``have been directed, for non-scientific reasons, to refrain from 
making jeopardy or other findings that are protective of species.'' One 
in five agency scientists revealed they have been instructed to 
compromise their scientific integrity--reporting that they have been 
``directed to inappropriately exclude or alter technical information 
from a FWS scientific document,'' such as a biological opinion;
      More than half of all respondents (56 percent) knew of 
cases where ``commercial interests have inappropriately induced the 
reversal or withdrawal of scientific conclusions or decisions through 
political intervention;'' and
      More than two out of three staff scientists (70 percent) 
and nearly nine out of 10 scientist managers (89 percent) knew of cases 
``where U.S. Department of the Interior political appointees have 
injected themselves into Ecological Services determinations.'' A 
majority of respondents also cited interventions by Members of Congress 
and local officeholders.
II. Negative Effect on Wildlife Protection
    While a majority of the scientists indicated that agency 
``scientific documents generally reflect technically rigorous 
evaluations of impacts to listed species and associated habitats,'' 
there is evidence that political intrusion has undermined the FWS's 
ability to fulfill its mission of protecting wildlife from extinction.
      Three out of four staff scientists and even higher 
proportions of scientist managers (78 percent) felt that the FWS is not 
``acting effectively to maintain or enhance species and their habitats, 
so as to avoid possible listings under the Endangered Species Act;''
      For those species already listed as threatened or 
endangered under the ESA, more than two out of three scientists (69 
percent) did not regard the FWS as effective in its efforts toward 
recovery of those listed species;
      Nearly two out of three scientists (64 percent) did not 
feel the agency ``is moving in the right direction;'' and
      More than two-thirds of staff scientists (71 percent) and 
more than half of scientist managers (51 percent) did not ``trust FWS 
decision makers to make decisions that will protect species and 
habitats.''
III. Chilling Effect on Scientific Candor
    Agency scientists reported being afraid to speak frankly about 
issues and felt constrained in their roles as scientists.
      More than a third (42 percent) said they could not openly 
express ``concerns about the biological needs of species and habitats 
without fear of retaliation'' in public while nearly a third (30 
percent) did not feel they could do so even inside the confines of the 
agency;
      Almost a third (32 percent) felt they are not allowed to 
do their jobs as scientists; A significant minority (19 percent) 
reported having ``been directed by FWS decision makers to provide 
incomplete, inaccurate or misleading information to the public, media 
or elected officials;'' however,
      Scientific collaboration among FWS scientists, academia 
and other federal agency scientists appears to be relatively untainted 
by this chilling effect, with a strong majority (83percent) reporting 
they felt free to collaborate with their colleagues on species and 
habitat issues.
IV. Resources and Morale
    While we cannot ascribe low staff morale to any one cause, the 
tenor of staff responses and their level of concern about a misuse of 
science are cause for concern.
      Half of all scientific staff reported that morale is poor 
to extremely poor and only 0.5 percent rated morale as excellent;
      More than nine out of ten (92 percent) did not feel that 
the agency ``has sufficient resources to adequately perform its 
environmental mission;'' and
      More than four out of five (85 percent) said that funding 
to implement the Endangered Species Act is inadequate.
In Their Own Words
    As part of the survey, the scientists were also asked how best to 
improve the integrity of scientific work at Fish & Wildlife--two-thirds 
of respondents provided written responses. By far the concern mentioned 
most often was political interference. The scientists' words paint a 
vivid picture of political misuse of science.
    One scientist noted that ``I have been through the reversal of two 
listing decisions due to political pressure. Science was ignored...and 
worse manipulated to build a bogus set of rationale for reversal of 
these listing decisions.''
    Another remarked that ``[r]ecently, DOI officials have forced 
changes in Service documents, and worse, they have forced upper-level 
managers to say things that are incorrect...,'' while a third explained 
that ``As it stands, [fish and wildlife] regional headquarters, [the 
Interior Department] and White House leadership are so hostile to our 
mission that they will subvert, spin or even illegitimize our 
findings.''
    One biologist wondered ``Why can't we be honest when science points 
in one direction but political reality results in [the agency] making a 
decision to do otherwise? Morale and credibility will improve if we are 
honest rather than trying to twist science to make politicians happy.''
    These survey results illustrate an alarming disregard for 
scientific facts among the political appointees entrusted to protect 
threatened and endangered species. The ESA requires the best available 
science be used as the basis for listing and recovery decisions.
Abuse of Endangered Species Science
    In our A to Z Guide to Political Interference in Science, the Union 
of Concerned Scientists has documented specific instances where 
endangered species data has been compromised. 7 The 
following examples address two fundamental facets of the ESA: decisions 
to list a species as endangered or threatened; and designation of 
critical habitat.
---------------------------------------------------------------------------
    \7\ Supporting documentation detailing these examples of political 
interference in science is available at: http://www.ucsusa.org/
atoz.html.
---------------------------------------------------------------------------
Listing Decisions
Greater Sage Grouse
    Julie MacDonald, the former Deputy Assistant Secretary for Fish and 
Wildlife and Parks at DOI, also interfered with the science behind the 
proposed listing of the Greater sage grouse, a highly threatened ground 
bird in the American west. A partial copy of Ms. MacDonald's edits and 
commentary on a scientific review by agency biologists of the state of 
scientific knowledge of the bird and its habitat was obtained by the 
New York Times. Many of her comments challenged specific statements 
made by biologists, questioned the methodology behind studies, and 
dismissed conclusions without providing a scientific basis for her 
criticism. Her baseless interference cast enough doubt on the status of 
the greater sage grouse that an expert panel recommended against 
listing the bird for protection.
Gunnison Sage Grouse
    Gunnison Sage grouse have experienced significant declines from 
historic numbers; only 4,000 breeding individuals remain in 
southwestern Colorado and southeastern Utah. FWS biologists and field 
staff were prepared to list the Gunnison sage grouse as endangered and 
designate a critical habitat, when the ESA listing for this distinct 
species was abruptly delayed and eventually reversed by Julie MacDonald 
and other Department of the Interior officials. These officials greatly 
edited the scientific reports of the scientists, reducing the 
substantial listing proposal to a mere outline of information, and 
finally concluded on a ``not warranted'' listing for this imperiled 
bird.
Gunnison's Prairie Dog
    The Gunnison's prairie dog, a distinct species from the white-
tailed prairie dog, had 90% of its historical range in Arizona, New 
Mexico, Utah, and Colorado, reduced by the combined pressures of oil 
and gas drilling, urban sprawl, sylvatic plague, and continued shooting 
and poisoning. Preliminary studies by FWS scientists showed that the 
Gunnison's prairie dog was a candidate for ESA listing until explicit 
orders from Julie MacDonald reversed their decision and precluded 
further study.
Roundtail Chub
    The Roundtail Chub of the lower Colorado River Basin was concluded 
to be a distinct population segment by the FWS scientists studying the 
fish from the field office of Arizona, but the pending decision was 
reversed by FWS officials. The extinction of this population segment, 
which is imperiled by a combination of non-native fish introductions 
and degradation of its stream and river habitat, would result in the 
species being eliminated from roughly a third of its range.
Tabernaemontana rotensis, a rare island tree
    Approximate thirty plants remain of the species Tabernaemontana 
rotensis, a medium-sized tree with white flowers and orange-red fruit 
that grows in the Northern Mariana Islands. In 2000, the FWS published 
a rule recognizing T. rotensis as a species and proposing to list it as 
an endangered species, but this decision was reversed by the Department 
of the Interior in April 2004. Documents show that DOI decision was 
influenced by comments from the Air Force, which manages the lands upon 
which T. rotensis is primarily found. This decision runs counter to the 
recommendations of the Pacific Islands office of FWS, the primary 
scientists that work on the species, and the peer reviewers of the 
proposed rule, who all supported listing, and to virtually all of the 
published literature.
Trumpeter Swan
    According to documents released through the Freedom of Information 
Act, as well as testimony from consulting scientists, then FWS director 
Steve Williams based decisions concerning the status of rare trumpeter 
swans on a scientifically flawed report that lacked outside peer review 
and seriously misrepresented another study. The attempt to list the 
imperiled trumpeter swans in Montana, Wyoming, and Idaho as a distinct 
population segment from the plentiful tundra swans of the same region 
would have forced the FWS to halt the popular swan hunting season in 
Utah. A formal complaint from PEER prompted director Steve Williams to 
convene a scientific panel to review the matter; the panel concluded 
that the FWS documentation was inadequate for use in a species 
determination. Williams overruled the panel's decision and continued to 
refuse protection to the trumpeter swan.
White-Tailed Prairie Dog
    The white-tailed prairie dog is suffering severe declines, having 
vanished from 92 percent of its historical habitat in higher-elevation 
grasslands across the western half of Wyoming, western Colorado, 
eastern Utah, and southern Montana. Documents show that then Assistant 
Secretary MacDonald directly tampered with a scientific determination 
by FWS biologists that the white-tailed prairie dog could warrant 
Endangered Species Act protection, and further, prevented the agency 
from fully reviewing the animal's status. Specifically, she changed 
scientific conclusions, and added erroneous scientific information, and 
ordered the finding to be changed from positive to negative.
Critical Habitat Designation
Bull Trout
    Officials at the U.S. Fish and Wildlife Service deleted chapters 
detailing the economic benefits of protecting the bull trout, a 
threatened species in the Pacific Northwest, from an independent and 
peer-reviewed cost analysis of establishing a critical habitat for the 
species. The final published report included no material on the 
estimated $215 million in economic benefits, and exaggerated the $230 
to $300 million in costs estimated by the researchers. These costs 
would primarily fall on hydropower, logging, and highway construction. 
White House officials claimed that the methodology of including 
benefits with costs in a financial analysis was discouraged, despite 
having used the same methodology themselves to justify administration-
supported policies.
Florida Panther
    According to FWS biologist Andrew Eller, Jr., FWS officials have 
knowingly used flawed science in the agency's assessment of the 
endangered Florida panther's habitat and viability in order to 
facilitate proposed development in southwest Florida. Eller says agency 
officials knowingly inflated data about panther population viability by 
erroneously assuming that all known panthers are breeding adults, 
discounting juvenile, aged, and ill animals. They have also minimized 
assessments of the panthers' habitat needs by equating daytime habitat 
use patterns (when the panther is at rest) with nighttime habitat use 
patterns (when the panther is most active). An independent scientific 
review team has confirmed that the information disseminated by the FWS 
about the Florida Panther contains serious errors.
Marbled Murrelet
    The Bush administration overruled the opinions of its own 
government scientists in deciding that the marbled murrelet in 
California, Oregon, and Washington was not genetically or ecologically 
distinct from bird populations in Canada and Alaska. These birds were 
listed as threatened under the Endangered Species Act in 1992, as they 
were disappearing rapidly from the three northwestern states as their 
coastal forest habitat came under pressure from human development and 
logging. In a review of the bird's status, prompted by the trade group 
American Forest Resource Council, the regional offices of the FWS 
argued that the murrelet of the Pacific Northwest was ecologically 
distinct from its cousins in Canada. However, the federal FWS ignored 
these scientists and moved to reduce its protected habitat by 95% and 
eventually initiated plans to delist the bird.
Pallid Sturgeon, Piping Plover and Interior Least Tern
    In late 2000, a group of scientists that that been studying the 
flow of the Missouri river concluded a ten year, independently reviewed 
study recommending a river management system mimicking natural seasonal 
fluctuations. The scientists contended that such a river plan would 
comply with the Endangered Species Act by helping to protect two 
species of birds (the threatened piping plover and the endangered 
interior least tern) and one species of fish (the endangered pallid 
sturgeon). However, the Bush administration intervened by creating a 
new team of scientists who worked under incredibly short deadlines, 
contained only two of the original 15-member river review team, and 
eventually released an ``amendment'' to the original document which was 
not subject to peer-review. The conclusion of the new team greatly 
softened the recommendation for river flow, and also insisted that the 
changes in water level would only affect the sturgeon.
Red Frog
    In April 2006, the FWS finalized plans to reduce by nearly 90 
percent the critical habitat set aside for the protection of a rare 
species of California frog. According to FWS, a new analysis had shown 
that the cost of maintaining the original critical habitat for the red-
legged frog was too high and would unfairly burden homeowners and 
ranchers. But the analysts who made the cost estimates argued that the 
numbers were skewed, since they were not permitted to factor in any 
monetary benefits of protecting the land.
Salmon
    A panel of scientific experts found that there was a strong 
scientific basis for excluding hatchery-raised fish when measuring the 
size of wild salmon populations in the Pacific Northwest. Such 
population counts are central to determining protection status and 
habitat needs under the Endangered Species Act. This central 
recommendation was deleted from the final report of the advisory 
committee. As the panel's lead scientist, Robert Paine, put it, ``The 
members of the panel were told to either strip out our recommendations 
or see our report end up in a drawer.'' The Bush administration 
subsequently released new determinations which combine hatchery and 
wild fish, thus inflating the population counts of several endangered 
or threatened naturally spawning fish. The removal of the extensive, 
up-to-date scientific record compiled by the advisory committee leaves 
these populations open to legal challenges calling for their delisting.
Strategies To Weaken The ESA
    Just this year, the Administration has attempted to weaken the ESA 
in ways that undermined the original intent of the ESA as passed by 
Congress. In March 2007, for example, the Department of the Interior's 
Office of Solicitor sent out a memo responding to questions raised by 
the FWS about the definition of an ``endangered species''--an issue 
that had been raised in a 2001 federal appellate court decision. The 
troubling memo concludes that when considering whether a species is 
endangered, government officials only have to consider its jeopardy in 
the current habitat it occupies, not its historical range. 8
---------------------------------------------------------------------------
    \8\ ``The Meaning of ``In Danger of Extinction Throughout All or a 
Significant Portion of its Range,'' Memo to Director, U.S. Fish and 
Wildlife Service from the Office of the Solicitor, United States 
Department of the Interior, 16 Mar. 2007.
---------------------------------------------------------------------------
    Thirty-eight biologists were so concerned about the potential 
impact of this memo that they sent a letter to Interior Secretary Dirk 
Kempthorne and warned that the memo's conclusions ``will have real and 
profoundly detrimental impacts on the conservation of many species and 
the habitat on which they depend.'' The letter states, ``Congressional 
intent about the act is clear: The Endangered Species Act is intended 
to allow species to be restored throughout large portions of their 
former range.'' 9
---------------------------------------------------------------------------
    \9\ Letter to Secretary Dirk Kempthorne regarding proposed changes 
to the Endangered Species Act, 30 Apr. 2007.
---------------------------------------------------------------------------
Systemic Problems Require Systemic Solutions
    The problem of political interference in science will not be solved 
by a new Administration or the resignation of additional political 
appointees. There will always be pressure on elected officials from 
special interests to weaken environmental laws. For that reason the 
Union of Concerned Scientists urges this committee to enact systemic 
reforms:
Transparency in Scientific Decisions
    Scientists at the FWS recommended more transparency in the 
decisions making process. Said one FWS biologist, ``Plac[e] much more 
scrutiny on the decision-making process between the draft scientific 
document and the final decision. The work is great until it hits the 
supervisory chain, and then things are dropped, changed, altered 
(usually without written record) and then finalized with dismissive 
responses to concerns.''
    To ensure the work of federal scientists will not be subject to 
political manipulation, the Department of the Interior should increase 
transparency in the decision-making process to expose manipulation of 
science and make other political appointees think twice before altering 
or distorting scientific documents. We make the following 
recommendations:
      The DOI should publish a statement explaining the 
scientific rationale for each listing decision and recovery plan. The 
statement should justify and defend how FWS staff reconcile scientific 
and economic data to make the final decision. The statement must 
include the scientific documentation that went into the decision and 
the names of the FWS employees and officers involved in the process.
      If FWS scientists have significant concerns with or 
criticisms of the decision, they must also be able to submit a 
statement explaining their disagreement. This would provide them with 
an opportunity to make their concerns public and provide FWS with an 
opportunity to explain how they have addressed the concerns or why they 
are not significant.
      DOI should establish a formal and independent scientific 
review board for agency policies and decisions.
Scientific Freedoms
    Scientists should be allowed basic freedoms to carry out their work 
and keep up with advances in their field. One FWS scientist 
recommended, ``Encourag[ing] scientists to keep abreast of scientific 
information (e.g., Membership in professional societies, pay for them 
to attend prof[essional] meetings) and allowing scientists to do their 
job-make sure they can focus on getting the science right before they 
are bombarded with the social, political and economic angles that come 
with each issue.''
      DOI scientists should be free to publish their tax-payer 
funded research in peer-reviewed journals and other scientific 
publications and be able to make oral presentations at professional 
society meetings. The only exception should be if the publication or 
presentation of the research is subject to Federal export control, 
national security, or is proprietary information.
Scientific Communication
    Open communication among scientists is one of the pillars of the 
scientific method. For society to fully reap the benefits of scientific 
advances, information must also flow freely among scientists, policy 
makers, and the general public. The federal government must respect the 
constitutional right of scientists to speak about any subject, 
including policy-related matters and those outside their area of 
expertise, so long as the scientists make it clear that they do so in 
their private capacity, and such communications do not unreasonably 
take from agency time and resources. Scientists should be proactively 
made aware of these rights and ensure they are exercised at their 
agencies.
      DOI should adopt media and communication policies that 
ensure tax-payer funded scientific research is open and accessible to 
Congress, the media, and the public. The policy should:
        Affirm that scientists and other staff have the 
fundamental right to express their personal views, provided they 
specify that they are not speaking on behalf of, or as a representative 
of, the agency but rather in their private capacity.
        Create an internal disclosure system to allow for the 
confidential reporting and meaningful resolution of inappropriate 
alterations, conduct, or conflicts of interest that arise with regard 
to media communications.
        Include provisions to actively train staff and post 
employee rights to scientific freedom in all workplaces and public 
areas.
Whistleblower Rights
    In the past, scientists who have attempted to disclose political 
interference with science have been found ineligible for whistleblower 
protection. Under the Whistleblower Protection Enhancement Act, H.R. 
985, which recently passed in House of Representatives, these 
disclosures are protected. Whistleblower protections for scientists who 
report abuse of science would help ensure that basic scientific 
freedoms of federal scientists are respected.
      Congress should pass the Whistleblower Enhancement Act, 
which would give federal scientists the right to expose political 
interference in their research without fear of retribution. The House 
has approved this measure, and it's time for the Senate to act.
      DOI scientists who provide information or assist in an 
investigation regarding manipulation or suppression of scientific 
research should be given adequate protection from retaliation.
      DOI should fully investigate any retaliatory actions 
against a scientist who expresses their concerns within or outside of 
the agency.
Immediate Actions
    There are several immediate actions that the Interior Department 
and Congress should take to prevent political interference in science 
and reinforce the scientific foundation of the Endangered Species Act:
      Interior Department Secretary Dirk Kempthorne should send 
a clear message to all political appointees that substituting opinions 
for science is unacceptable.
      In light of the demonstrated pervasiveness of political 
interference in Endangered Species Act decisions during the past 
several years, the Interior Department should engage in a systematic 
review of all Bush administration decisions to ensure that the science 
behind those decisions was not altered or distorted. At the very least, 
Secretary Kempthorne should require an immediate reevaluation of 
decisions where political interference has been exposed.
      Given the number of recent attempts to undermine the 
scientific underpinnings of the Endangered Species Act by Members of 
Congress and political appointees, congressional committees of 
jurisdiction must act to safeguard the role of science in protecting 
highly imperiled species.
Restoring Scientific Integrity Throughout Government
    In the 109th Congress, the Union of Concerned Scientists strongly 
supported comprehensive legislation to protect fact-based information 
from distortion in order to give policymakers the best data on which to 
make decisions that affect each and every American.
    The ``Restore Scientific Integrity to Federal Research and 
Policymaking Act,'' sponsored in the House by Representatives Henry 
Waxman (D-CA) and Bart Gordon (D-TN) drew 80 sponsors. The prime 
sponsor of its Senate companion was Sen. Richard Durbin (D-IL).
    We look forward to working with the 110th Congress on comprehensive 
bipartisan legislation and other reforms to restore scientific 
integrity to federal policymaking.
                                 ______
                                 
    The Chairman. Thank you. Mr. Ruch.

        STATEMENT OF MR. JEFF RUCH, EXECUTIVE DIRECTOR, 
       PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY

    Mr. Ruch. Mr. Chairman and Members, my name is Jeff Ruch, 
and I am the Executive Director of Public Employees for 
Environmental Responsibility, otherwise known as PEER. We are a 
service organization for scientists, law enforcement officers, 
land managers, attorneys, who face crises on environmental 
issues, and as such, we act as sort of a giant shelter for 
battered staff, and in this context we see the underside of 
many of these conflicts.
    In doing this work, we have interviewed scores of 
scientists work on the ESA where we have surveyed hundreds of 
them. We have deposed managers under oath in litigation, and we 
have sparked and monitored official investigations, and our 
conclusions are these:
    One, is that political manipulation is now thoroughly 
corrupting Endangered Species Act science. It has become 
widespread and it has become routine, to the point where even 
field biologists in remote stations can get a call from a 
deputy assistant secretary and be told to change a number. It 
is extraordinary.
    Second, that this political interference, particularly 
under former Secretary Gail Norton and her leadership team, 
Craig Manson, Paul Hoffman, Julie MacDonald, none of them had 
scientific backgrounds, was directed from the top, and included 
and was enforced by kind of a dissemble to succeed policy in 
which the perpetrators of fraud were promoted, and scientists 
who persisted in disclosing inconvenient facts were ostracized, 
marginalized, or in extreme cases, fired.
    Finally, that these problems are not limited to the 
Department of the Interior. The surveys and other work we have 
done in NOAA, NOAA Fisheries, finds just as extensive, if not 
more, intense political interference with the work that they 
are doing.
    Now, to me, I was somewhat surprised when I read Ms. 
Scarlett's testimony that she did not mention Julie MacDonald, 
and the Department itself has been silent with respect to that 
particular affair, and it is unclear whether Interior's posture 
is whether Ms. MacDonald did anything wrong, or whether it was 
unfortunate that she was caught doing what she was doing.
    But the approach of ignoring the elephant in the front row 
of this hearing room itself sends a very strong message to 
people who work for the Department of the Interior, and that is 
that political interference will continue to be tolerated and 
woe to those that interfere.
    Moreover, it is significant that the Department has 
announced no steps to correct the errors that were identified 
by its own Inspector General.
    I would like to comment for just a second about litigation. 
The reason that environmental groups can bring in and win these 
lawsuits is that they are relying upon the science generated by 
the agency's own specialists. The burden that these groups have 
to show, the burden is on the plaintiff. They have to show that 
the agency action, they have to show that the Federal 
government is acting in an arbitrary and capricious fashion. 
They must demonstrate that the Federal government's action has 
no rational basis. That is one of the heaviest burdens in 
jurisprudence.
    But the reason these groups consistently win these suits is 
because the agency's own information has been manipulated and 
it is difficult to defend before a Federal judge of any 
political persuasion.
    Because it is clear that the Department of the Interior has 
apparently no intention of acting in regard to these matters, 
we would urge the Congress to step in, and we would ask that 
the Congress take acts to improve accountability, transparency, 
and integrity.
    In terms of accountability, we would urge that the 
Committee focus not only on removing managers that perpetrate 
these kind of actions, but also pay some attention to the 
scientific, political prisoners of conscience whose careers 
have been jeopardized because they have proceeded with 
information that is correct but politically inconvenient.
    One of the cases we want to draw your attention to is Rex 
Wahl, a Bureau of Reclamation biologist who has been sitting at 
home at taxpayers' expense for nine months for the crime of 
committing candor in disclosing information about pending 
Reclamation projects.
    The second thing we would urge is transparency. We would 
echo the comments made by Dr. Grifo from the Union of Concerned 
Scientists, and add one more. NOAA and the Department of 
Commerce are about to adopt a far-ranging, unprecedented gag 
order that prevents its personnel from making any kind of 
statement that is of official interest, even on their own time, 
at a scientific conference, at any place without prior review 
and approval. We would think that the Congress should step in 
and ban these sort of non-disclosure policies because they are 
the antithesis of transparency.
    Finally, with respect to integrity, we would echo that 
whistle blower protection is sorely needed as these scientists 
have almost no legal protection when they are just trying to do 
their jobs. We would also urge that the Committee legitimize 
involvement by scientists and professional societies so that 
efforts to promote integrity of science is no longer considered 
a conflict of interest as it is under current policy.
    Finally, we would urge that the Congress enforce the laws 
that allow members of the Civil Service to directly communicate 
with the committees without fear of appraisal. We hope that the 
Congress takes acts to ensure that taxpayer funds are no longer 
used to perpetrate fraud.
    [The prepared statement of Mr. Ruch follows:]

              Statement of Jeff Ruch, Executive Director, 
           Public Employees for Environmental Responsibility

    Good morning. My name is Jeff Ruch and I am the Executive Director 
of Public Employees for Environmental Responsibility (PEER).
    PEER is a service organization dedicated to protecting those who 
protect our environment. PEER provides legal defense to federal, state, 
local and tribal employees dedicated to ecologically responsible 
management against the sometimes onerous repercussions of merely doing 
their jobs. In addition, PEER serves as a safe, collective and credible 
voice for expressing the viewpoints otherwise cloistered within the 
cubicles. Headquartered in Washington, D.C., PEER has a network of ten 
state and regional offices. Most of our staff and board members are 
themselves former public employees.
    On a daily basis, public employees in crisis contact PEER. In our 
D.C. office alone, we average five ``intakes'' per day. A typical 
intake involves a scientist or other specialist who is asked to shade 
or distort the truth in order to reach a pre-determined result, such as 
a favorable recommendation on a project. It is in this context that 
PEER hears from scientists working within the U.S. Fish & Wildlife 
Services (FWS), as well as the National Marine Fisheries Service 
(NMFS). My remarks reflect the input we have received from these 
scientists who feel unable to openly voice their concerns.
    In this morning's testimony, I will 1) describe how official 
manipulation and distortion of Endangered Species Act (ESA) science has 
become pervasive; 2) explain how scientists are often caught in the 
political crosshairs of their own agency management with little 
recourse; and 3) suggest how Congress can ameliorate this state of 
affairs.
I. Official Manipulation and Distortion of ESA Science Is Pervasive
    I do not mean to suggest that the type of political interference 
described in this testimony originated with the present administration. 
The ESA has been plagued by politics since its inception.
    In December 1997 PEER published a white paper entitled War of 
Attrition: Sabotage of the Endangered Species Act by the U.S. 
Department of the Interior. In that white paper we detailed political 
intervention by then-Interior Secretary Bruce Babbitt and his top aides 
to reverse the findings of agency scientists in eight high-profile ESA 
cases. In each case, environmental groups successfully sued Interior 
and forced the listing or other action the political intervention was 
intended to prevent.
    The principal difference in the intervening decade is that what was 
an occasional event during the Clinton administration is now a daily 
occurrence. The handful of cases PEER cited during the Clinton years is 
dwarfed by the scores of such cases being reported under the current 
Bush administration. The cases under Clinton where politics trumped 
science appear to have been triggered by complaints from state 
governors or other high-profile dynamics. By contrast, under the 
current Administration, political intervention has become a matter of 
routine.
    One of the unique aspects of the ESA is the status it accords to 
the role ``the best scientific and commercial data available'' as 
either the sole or principal guide for the Secretary to make 
determinations relative to the Act [ see, for example, 16 U.S.C. 
Sec. 1533 (b) (1) (A) and 16 U.S.C. Sec. 1536].
    From the earliest days of the current Administration, however, 
there has been a profound tension between the facts reported to it by 
civil servants and its political goals. For example, after promising 
during her confirmation hearings to faithfully report the scientific 
findings of agency specialists, five months later, on July 11, 2001, 
then-Interior Secretary Gale Norton provided the Congress with a letter 
that substantially altered biological findings from FWS concerning 
effects of oil development in the Arctic National Wildlife Refuge. All 
17 of the major changes made in the FWS evaluation by the Secretary or 
her immediate staff (as no other member of her leadership team had yet 
been confirmed) pointed in one direction--to minimize the biological 
impacts of oil drilling. When questioned about the changes Ms. Norton 
ascribed them to typographical errors.
    This willingness to rewrite scientific and technical findings to 
serve political aims has continued unabated and, by some measures, has 
accelerated. In 2002, following a PowerPoint presentation by 
presidential counselor Karl Rove to Interior political staff, the 
scientific determination of water levels needed to support threatened 
coho salmon in the Klamath River was suddenly cut in half without any 
biological analysis, in violation of the ESA. At the behest of Bureau 
of Reclamation officials, the conclusion of a draft biological opinion 
prepared by a NMFS team was altered to lower the minimal in-stream flow 
levels below what the fisheries scientists believed necessary for the 
survival of coho salmon in the Klamath River. Late that summer, the 
Klamath experienced the largest fish kill in the history of the Pacific 
Northwest.
    In the ensuing years, the political rewrite of ESA scientific 
documents has become a routine practice. Last fall, for example, the 
conclusion of a scientific assessment on whether the Gunnison's prairie 
dog should be listed under the ESA was changed under orders by a 
political appointee--Interior Deputy Assistant Secretary Julie 
MacDonald, an engineer by training, who has been quite energetic in 
rewriting biological opinions. In this case, a draft opinion which 
found listing of the Gunnison's prairie dog to be scientifically 
warranted sparked this terse e-mailed directive:
        ``Per Julie please make pd finding negative. Thanks''
    In other words, all of the scientific analysis would remain 
unchanged, only the conclusion (the positive recommendation) would 
change. This suggests a blatant, almost casual, approach to political 
interference with ESA science.
    At the same time, PEER has received scores of complaints from FWS 
and NMFS scientists about similar acts of manipulation. To find out how 
widespread this experience was, in 2005, PEER in partnership with the 
Union of Concerned Scientists (UCS) surveyed more than 1,400 FWS 
biologists, ecologists and botanists working in field offices across 
the country to obtain their perceptions of scientific integrity within 
the agency. The survey had a 30% rate of return and produced some of 
the following results:
      Nearly half of all respondents whose work is related to 
endangered species scientific findings (44%) reported that they ``have 
been directed, for non-scientific reasons, to refrain from making 
jeopardy or other findings that are protective of species.'' One in 
five agency scientists said they have been ``directed to 
inappropriately exclude or alter technical information from a FWS 
scientific document'';
      More than half of all respondents (56%) cited cases where 
``commercial interests have inappropriately induced the reversal or 
withdrawal of scientific conclusions or decisions through political 
intervention''; and
      More than a third (42%) said they could not openly 
express ``concerns about the biological needs of species and habitats 
without fear of retaliation'' in public while nearly a third (30%) felt 
they could not do so even inside the confines of the agency. Almost a 
third (32%) felt they are not allowed to do their jobs as scientists.
    In essays submitted on the topic of how to improve integrity at 
FWS, many biologists cited Julie MacDonald by name. Most essays, 
however, were couched in more general terms:
      ``We are not allowed to be honest and forthright, we are 
expected to rubber stamp everything. I have 20 years of federal service 
in this and this is the worst it has ever been.''
      ``I have never seen so many findings and recommendations 
by the field be turned around at the regional and Washington level. All 
we can do at the field level is ensure that our administration record 
is complete and hope we get sued by an environmental or conservation 
organization.''
      ``Recently, [Interior] officials have forced changes in 
Service documents, and worse, they have forced upper-level managers to 
say things that are incorrect...It's one thing for the Department to 
dismiss our recommendations, it's quite another to be forced (under 
veiled threat of removal) to say something that is counter our best 
professional judgment.''
    Later that year, the two groups surveyed 460 NMFS scientists 
charged with administering the ESA. More than a quarter (27%) of the 
scientists returned the surveys with even more disturbing results:
      An even stronger majority (58%) knew of cases in which 
high-level Commerce Department appointees or managers ``have 
inappropriately altered [NMFS] determinations;''
      More than one third (37%) have ``been directed, for non-
scientific reasons, to refrain from making findings that are 
protective'' of marine life; and
      Nearly one in four (24%) of those conducting such work 
reported being ``directed to inappropriately exclude or alter technical 
information from a...scientific document.''
    In essays submitted on the topic of how to improve the integrity of 
scientific work at the agency, the predominant concern raised by the 
NMFS scientists was political interference:
      ``It seems that we are encouraged to think too much about 
the consequences and how to get around them, rather than just basing 
our recommendations on the best available data.''
      ``[I]t is not uncommon to be directed to not communicate 
debates in writing. I have also seen written documents that include 
internal discussions/debate purposefully omitted from administrative 
records with no valid reasoning.''
      ``Removing the implication that an ESA Section 7 Jeopardy 
determination is never or almost never justified--this view is 
frequently held and expressed by managers. A huge problem is that a 
Sec. 7 consultation for ESA, whether the science is good or bad, that 
does not cause problems for an action agency is not heartily 
scrutinized. But a determination that results in more protection for 
the species and restricts an agency action or lengthens their timeline 
is always scrutinized and pressure may be applied to change the 
determination even if valid.''
    Not every manipulation of ESA science is blatant. Some are subtle, 
involving re-interpretations or technical guidance that on their face 
appear neutral but are, in fact, designed to skew scientific results. 
For example, in January 2005, Dale Hall, the then-FWS Southwest 
Regional Director, issued a new policy forbidding biologists from using 
wildlife genetics to protect or aid recovery of endangered and 
threatened species. As a result, agency biologists are prohibited from 
even considering unique genetic lineages in protecting or recovering 
wildlife in danger of extinction.
    By prohibiting consideration of individual or unique populations, 
Hall's policy allows FWS to declare wildlife species secure based on 
the status of any single population (even a population in captivity, 
such as within a zoo). This means the agency could pronounce species 
recovered even if a majority of populations were on the brink of 
extinction or permit approval of development projects that extirpate 
whole populations.
    While seemingly neutral on its face, the policy was timed to block 
the ESA listing of the Lesser Prairie-Chicken, as well as to water down 
the recovery plans for the Mexican Spotted Owl and the Southwest Willow 
Flycatcher as well as a number of desert fish species, among other 
species.
    This policy even provoked a rare, though fruitless, internal 
protest. Then-Mountain-Prairie Regional Director Ralph Morgenweck, 
attacked the new policy, citing several examples where genetic 
diversity has been critical to species' survival because it allows 
wildlife to adapt to emerging threats, diseases and changing 
conditions. In his memo of protest, Morgenweck stated:
        ``I have concerns that the policy could run counter to the 
        purpose of the Endangered Species Act to recover the ecosystems 
        upon which endangered and threatened species depend. It also 
        may contradict our direction to use the best available science 
        in endangered species decisions in some cases.''
    Mr. Morgenweck's protest was ignored. Shortly thereafter, the 
author of the policy, Dale Hall, was nominated and confirmed as the 
Director of the FWS.
    Lastly in this regard, one important measure of the pervasiveness 
of official scientific fraud and distortion is the high success rate by 
conservation groups in winning ESA lawsuits against the government. In 
order for these non-profit groups to prevail in court, they must show 
that the federal government acted in an arbitrary and capricious 
manner. This is one of the heaviest burdens in civil jurisprudence in 
that the plaintiffs must show that the government agency had no 
rational basis for its decision.
    The way in which these, often small, groups prevail is by showing 
that the Secretary of Interior or Commerce ignored their own 
scientists. In other words, ESA lawsuits against Interior or Commerce 
are powered almost exclusively by the research generated (and then 
suppressed or rewritten) by the agency itself.
II. Scientists Are Caught in the Political Crosshairs with Little 
        Recourse
    In our experience, biologists in FWS and NMFS typically have little 
interest in politics; their passion is the resource. It often comes as 
quite a shock when they find themselves caught up in the political 
winds blowing out of Washington, DC. In those instances, these 
specialists are like deer caught in the headlights, not knowing where 
to run, as a truck barrels down threatening to flatten their careers.
    Compounding the risks is the relative delicacy of scientific 
careers, which may be derailed by agency actions that would not trouble 
other professionals. In some scientific disciplines (particularly those 
within FWS and NMFS), the ``publish or perish'' dynamic means that if 
an agency prevents the submission of manuscripts to peer reviewed 
journals the scientist is put at a (sometimes fatal) competitive 
disadvantage. Being denied permission to attend a professional 
conference or present a paper at such a conference can cause grievous 
career harm. When administered as punishments these tactics can be 
quite devastating, but they do not rise to the legal standard of a 
``personnel action'' within federal civil service law and thus are very 
difficult to challenge or review.
    On the other hand, some agency tactics for punishing scientists who 
disclose inconvenient truths are far from nuanced:
      One Bureau of Reclamation biologist represented by PEER 
has been home on paid administrative leave for nine months. His 
supposed offense was sending e-mails to federal agencies and an 
environmental group pointing out problems in Bureau filings and 
reports. The biologist, Charles (Rex) Wahl., was also the agency NEPA 
(National Environmental Policy Act) coordinator whose job it is to keep 
stakeholders informed. Originally, Reclamation proposed to fire Wahl 
for being ``subversive'' and revealing ``administratively controlled 
information.'' This January, the Bureau withdrew those charges and 
instead proposed dismissal on the grounds of causing ``embarrassment'' 
for putting the agency in a ``negative light.'' For good measure, the 
Bureau also dismissed his wife, Cherie, from her temporary clerk-typist 
position. Meanwhile, Rex Wahl sits at home and collects his pay;
      A FWS biologist who protested diversion of critical 
habitat found her e-mail privileges ``suspended'' until the end of the 
fiscal year; and
      A biologist who raised concerns about growing damage 
cause by off-road vehicles was abruptly removed from that program and 
re-assigned to a position with no duties in an office that has no phone 
or computer.
    Unfortunately, wronged federal scientists who seek vindication face 
steep challenges.
A. Federal Scientists Have Scant Legal Protection
    This Congress is currently reviewing legislation to strengthen the 
distressingly weak Whistleblower Protection Act. I will not reiterate 
the arguments in that debate except to note that scientists who raise 
concerns about the quality of studies or the validity of findings often 
have no legal protection at all.
    In the federal civil service, scientists risk their jobs and their 
careers if they are courageous enough to deliver accurate but 
politically inconvenient findings. For openers, the practice of ``good 
science'' is not recognized as protected activity under the federal 
Whistleblower Protection Act, unless 1) the scientist is reporting a 
falsification or other distortion that violates a law or regulation; or 
2) the scientific manipulation creates an imminent danger to public 
health or safety.
    Absent those unusual circumstances, a disclosure of a skewed 
methodology, suppression of key data or the alteration of a data-driven 
recommendation is treated as if it were a policy dispute, for which the 
disclosing scientist has no legal protection or standing.
    In 2003, nearly half of the federal civilian workforce (in the 
Departments of Homeland Security and Defense) lost traditional civil 
service protections. In these agencies, the emerging management regime 
resembles a private sector, at-will employment system. Scientists in 
these agencies can easily be fired, de-funded, transferred or otherwise 
redirected simply because the results of their scientific work cause 
political displeasure.
    On, May 30, 2006, Justice Samuel Alito cast his first deciding vote 
in Garcetti v. Ceballos (126 S. Ct. 1951) which held that public 
servants have no First Amendment rights in their role as government 
employees. The central premise of this ruling is public employees per 
se have no free speech status because their speech is owned by the 
government.
    The court held that civil servants enjoy First Amendment rights 
only when they act outside their work role and go public. Thus, under 
the Supreme Court's formulation, telling an inconvenient truth at work 
allows no constitutional defense against on-the-job retaliation.
    The only protection the Court identified for public servants is 
whistleblower legislation. Unfortunately, the federal Whistleblower 
Protection Act has been interpreted to exclude disclosures made within 
the scope of duty. Thus, internal agency communications often lack any 
legal protection whatsoever--constitutional or statutory.
    The only body of law that protects government scientists is the 
handful of environmental statutes, such as the federal Clean Air Act, 
that protect disclosures made by any employee, public or private 
sector, that further the implementation of those acts. The ESA, 
however, has no such whistleblower provision. Moreover, the Bush 
administration has recently ruled that all but two of the six 
environmental laws with such whistleblower provisions are off-limits to 
federal employees under the doctrine of sovereign immunity--based on 
the old English common law maxim that ``The King Can Do No Wrong.''
B. Agencies Reward Scientific Fraud
    Compounding this daunting legal climate is the tendency by the 
agencies to promote or reward the very officials who perpetrate the 
distortions of scientific work. The reason behind this perverse dynamic 
seems evident--managers who dissemble to achieve a pre-determined 
result are simply doing the bidding of the agency's top political 
appointees. In another context, then-Department of Justice Chief-of-
Staff Kyle Sampson expressed the concept when he testified that the 
distinction between politics and performance was ``artificial.''
    To convey just how widespread this ``lie to succeed'' culture has 
become in federal service, consider two recent examples:
      In 2005, a Commerce Office of Inspector General report 
found that a key NMFS biological opinion on the effects of diverting 
Sacramento River water from the San Francisco Bay Delta to thirsty 
Southern California had been improperly altered to find no adverse 
effects. The responsible party identified by the Inspector General was 
one James Lecky, a regional official. Shortly thereafter Mr. Lecky was 
promoted to become the agency's Director of Protected Resources, in 
which position he oversees production of all the biological opinions on 
threatened and endangered species; and
      One of the rare instances in which FWS has admitted that 
it committed scientific fraud involves use of skewed biology in 
assessing the habitat needs and population of the endangered Florida 
panther (discussed in the following section). The central figure in 
this episode was Jay Slack, the Field Supervisor of the FWS South 
Florida Field Office in Vero Beach. Mr. Slack fired the FWS biologist, 
Andrew Eller, who had challenged the fraud. Following a whistleblower 
complaint waged by PEER, Mr. Eller was restored to FWS in a courthouse 
steps settlement. Shortly thereafter, Mr. Slack received a Meritorious 
Service Award. Six months later in February 2006, Slack was promoted to 
serve as Deputy Regional Director of the FWS Mountain-Prairie Region, 
responsible for the eight-state area of Colorado, Montana, Wyoming, 
Utah, Nebraska, Kansas and the Dakotas.
C. Profiles in Biological Courage
    From reports that PEER has received there are regions where 
political pressure to change scientific findings is particularly acute. 
This is not meant to suggest that other regions do not have these 
problems, only that further congressional investigation into this topic 
would likely find fertile ground in these suppression ``hot spots.'' 
These hot spots coincide with swelling populations pushing against 
shrinking wildlife habitats:
    Southwest Florida: The challenges facing federal biologists in 
South Florida are almost beyond description. Attached to my testimony 
is a letter by Ann Hauck on behalf of the Council of Civic Associations 
[Attachment I] which conveys how deep-seated the difficulties in that 
fast-growing region are.
    In that region, FWS biologists are forbidden from issuing ESA 
``jeopardy letters''--no matter how destructive the development 
project. As these new developments sprawl across the tattered habitat 
of the endangered Florida panther, avoiding a finding of jeopardy 
remains quite a challenge for FWS. The agency had to resort to using 
scientific fictions to inflate panther population and inaccurately 
minimize habitat needs. Here are some of the fictions which FWS 
admitted that it employed, in response to a Data Quality Act challenge 
filed by PEER and FWS biologist Andy Eller:
      Relying on daytime habitat use patterns (when the panther 
is at rest) while ignoring nighttime habitat use patterns (when the 
panther is active);
      Assuming that all known panthers are breeding adults, 
discounting juvenile, aged and ill animals; and
      Using population estimates, reproductive rates, and 
kitten survival rates not supported by field data.
    Then-FWS Director Steven Williams, who made the formal admission of 
error in response to the PEER/Eller challenge, resigned the day before 
it was announced. As it was announced, the FWS Southeastern Regional 
Office held a press conference in which it declared that not one single 
decision or biological review would change as a result of the decision.
    Pacific Northwest: Fishery biologists in both NMFS and FWS working 
on issues involving dams and their management, especially within the 
Federal Columbia River Power System, are being subjected to a severe 
form of cognitive dissonance. These scientists are being asked to 
ignore evidence as to the negative effect these structures are having 
on listed fish populations and to overestimate the salutary effect of 
various mitigation measures.
    One FWS biologist has described an impending ``biological train 
wreck'' on the Columbia River, pitting survival of endangered fish 
populations against rising power rates and threats of artificially 
manipulated floods, in describing a concerted effort by agency 
officials to obstruct implementation of the ESA.
    Southwest: Booming population growth in the arid Southwest is 
pushing many species toward extinction but federal recovery plans are 
tangled in inter-agency and political conflict. For example, FWS 
scientists find endangered and threatened fish of the Gila River basin 
in Southern Arizona and Western New Mexico continue to decline because 
key steps in approved recovery plans are not implemented by their own 
agency, particularly control of nonnative game fish managed by the 
state wildlife agencies which are supposed to be assisting in federal 
recovery plan implementation.
    A recovery plan is a basic provision of the Endangered Species Act. 
It outlines the steps needed to prevent possible extinction of a 
federally-listed species and to restore a healthy self-sustaining 
species. The recovery plans are sound but there is no consistent 
follow-through. The conflicting mandate of the FWS to protect native 
fish versus the state wildlife agencies' promotion of sport fishing has 
stalemated effective actions in addressing root causes of the 
continuing deterioration in the status of the native species.
    In all of the above-described settings, scores of federal 
scientists are struggling mightily to respect their professional ethics 
while maintaining a career in federal service.
III. Congress Can Restore Scientific Integrity
    Congress has the ability to address the deterioration in the 
integrity of official ESA science. PEER would offer the following 
recommendations:
A. Insist on Accountability for Political Appointees and Managers
    Any progress in this area will be problematic unless those 
political appointees and managers who perpetrate scientific fraud or 
manipulation suffer negative career consequences. For example, the 
Interior Department has yet to condemn the conduct of the recently-
resigned Julie MacDonald. The continued silence from Secretary Dirk 
Kempthorne sends a strong signal that misrepresenting agency scientific 
research is a practice is endorsed by Interior leadership. The posture 
of Interior appears to be that unless the interference is publicly 
exposed in an embarrassing fashion rewriting scientific documents for 
non-scientific reasons is a ``no-harm-no-foul'' infraction.
    Significantly, the only recent instance in which Interior 
Department leadership embraced the concept of scientific integrity has 
been as a tool to punish what it perceived to be scientists with an 
agenda. In 2002,
    The Washington Times cooked up a scandalous hoax in which the 
central allegation was that several FWS, U.S. Forest Service and 
Washington State scientists had hatched a plot to close large sections 
of Western public lands by planting phony samples of fur from the 
threatened Canada lynx. The Washington Times then attempted to sell ad 
space to PEER and other environmental groups so that the ``other side'' 
of this story would be printed in their pages.
    Despite repeated internal and external investigations that debunked 
this hoax (the scientists had sent in outside samples to test the 
private DNA laboratory but these samples were never part of the lynx 
habitat survey), Members of Congress, abetted by top Interior 
officials, decried how ESA science had ``gotten out of control.''
    When the furor died down and the scientists were vindicated, a 
somewhat sheepish Interior Department published a Code of Scientific 
Ethics, as a face-saving step to show that it had done something to 
ensure that its scientists would never again go out of control. 
Although Interior issued a press release with the Code attached, the 
Code never appeared within any Interior manuals. There remains broad 
confusion as to its status, meaning and application.
    This semi-official Interior Code of Scientific Conduct has among 
its provisions the following:
      ``I will act in the interest of the advancement of 
science and contribute the best, highest quality scientific 
information.''
      ``I will neither hinder the scientific and information 
gathering activities of others nor engage in dishonesty, fraud, deceit, 
misrepresentation, or other scientific, research or professional 
misconduct.''
      ``I will place quality and objectivity of scientific 
activities and information ahead of personal gain or allegiance to 
individuals or organizations.''
    Interior's Code of Scientific Conduct [the full text can be seen in 
Attachment II] should be formally promulgated and made explicitly 
binding on its political appointees and managers.
B. Transparency Will Deter Distortions
    Supreme Court Justice Louis Brandeis once said ``Sunshine is the 
best disinfectant,'' and his prescription has application here.
    Congress should require that internal alterations of scientific 
reports become part of the public record, so that the evolution of 
official findings can be traced. In particular, alterations by 
political appointees of FWS and NMFS scientific documents should be 
reported to the Congress with a mandatory written explanation for the 
basis of the alteration.
    If these changes to scientific conclusions must be explained in the 
clear light of day, it should deter some of the grosser distortions. 
Conversely, if Interior or Commerce Department leaders argue that the 
changes their political appointees make are appropriate, they should 
not mind sharing that justification with the rest of us.
    Retrospectively, the Interior Department has yet to correct the 
scientific misrepresentations made my Ms. MacDonald that were 
identified by the Inspector General. The Interior Department should 
affirmatively correct these errors now, rather than waiting for them to 
be invalidated one-by-one through court orders produced by ESA 
challenges.
    Moreover, Ms. MacDonald was not acting as a lone rogue. Her actions 
fit into a pattern of scientific misrepresentations perpetrated by her 
former colleagues, including Deputy Assistant Secretary Paul Hoffman 
and former Assistant Secretary Craig Manson. If Interior is not willing 
to go back and correct the errors mad by these political appointees, 
then the Congress should step in and order an independent review of the 
revisions made by Interior appointees since 2002. This congressionally-
chartered scientific ``Truth Commission'' would identify the errors 
that need to be corrected. Correcting the ESA scientific record now 
would prevent much future litigation, and render several existing 
lawsuits moot.
C. Stop Suppression of Science by Prohibiting Agency Gag Orders
    One of the most disturbing findings of the PEER/UCS surveys was 
that federal scientists were unsure about what they could or could not 
say or write to colleagues in academia or other agencies. As a result, 
the natural give-and-take of scientific development is stunted by 
politically-inspired public communication policies that require all 
communications be officially vetted.
    PEER believes that the confusion among scientists is the direct 
result of deliberately vague policies that generally restrain agency 
scientists from interacting with outsiders. For example, the FWS on May 
5, 2004 held an all-staff ``Town Meeting'' to tout its ``scientific 
excellence.'' That afternoon, all employees were supposed to take part 
in an ``interactive discussion'' via telephone conference, Internet 
connection or satellite download with then-Director Steve Williams.
    At that meeting, Mr. Williams announced that FWS would begin 
concerted interaction with professional societies. He was then asked by 
a participant whether he would address the Interior ethics guidelines 
which still discourage agency scientists from more than passing 
involvement with associations dedicated to raising and protecting 
scientific standards. The ethics guidelines classify these professional 
societies as the sources of potential conflict of interest. Ironically, 
agency lawyers are free to participate in state bar or legal 
association activities but scientists have no comparable freedom.
    In other instances, agency constraints on scientists are not as 
subtle. For example, on March 29, 2007, the Commerce Department posted 
a new administrative order on ``Public Communications'' requiring that 
agency climate, weather and marine scientists obtain agency pre-
approval to speak or write, whether on or off-duty, concerning any 
scientific topic deemed ``of official interest.''
    This new order, which becomes effective this month, would repeal a 
more liberal ``open science'' policy adopted by the National Oceanic & 
Atmospheric Administration on February 14, 2006. The agency also 
rejected a more open policy adopted last year by the National 
Aeronautics and Space Administration. This new policy also was rushed 
to print despite an ongoing Commerce Office of Inspector General review 
of communication policies that was undertaken at congressional request.
    Although couched in rhetoric about the need for ``broad and open 
dissemination of research results [and] open exchange of scientific 
ideas,'' the new order forbids agency scientists from communicating any 
relevant information, even if prepared and delivered on their own time 
as private citizens, which has not been approved by the official chain-
of-command:
      Scientists must give the Commerce Department at least two 
weeks ``advance notice'' of any written, oral or audiovisual 
presentation prepared on their own time if it ``is a matter of official 
interest to the Department because it relates to Department programs, 
policies or operations.''
      Any ``fundamental research communication'' must ``before 
the communication occurs'' be submitted to and approved by the 
designated ``head of the operating unit.'' While the directive states 
that approval may not be withheld ``based on policy, budget, or 
management implications of the research,'' it does not define these 
terms and limits any appeal to within Commerce; and
      It is so all-encompassing that the only exception is for 
National Weather Service employees who may ``as part of their routine 
responsibilities to communicate information about the weather to the 
public.''
    While claiming to provide clarity, the new Commerce order gives 
conflicting directives, on one hand telling scientists that if unsure 
whether a conclusion has been officially approved ``then the researcher 
must make clear that he or she is representing his or her individual 
conclusion.'' Yet, another part of the order states non-official 
communications ``may not take place or be prepared during working 
hours.'' This conflict means that every scientist who answers an 
unexpected question at a conference puts his or her career at risk by 
giving an honest answer.
    The rights of non-national security agency scientists should not 
vary from agency to agency. Congress should ban the Commerce Department 
and other similar gag orders and allow federal scientists to freely 
communicate and argue about science.
D. Strengthen Whistleblower Protections and Extend Them to Scientists
    The House of Representatives (H.R. 985) recently passed legislation 
that extends civil service whistleblower protection to federal 
scientists who report data manipulation or suppression. Enactment of 
that legislation would help address many of the problems discussed at 
this hearing.
    In addition to strengthening the scope and application of federal 
whistleblower statutes, PEER suggests three specific steps that 
directly address ESA and related science:
    1.  Enact a Whistleblower Provision for ESA. As noted earlier, ESA 
lacks the type of whistleblower protection that exists in several other 
environmental statutes. Applying this sort of whistleblower protection 
to ESA (PEER would also urge application to the National Environmental 
Policy Act) will mean that federal scientists working on these issues 
would be able to do their jobs free from the prospect of reprisal for 
doing their jobs too well on a controversial or politically-charged 
issue.
    2.  Clarify Laws So That Federal Scientists Are Not Barred by 
Sovereign Immunity. Most would agree that federal agencies should not 
be above the law, but executive branch agencies are doing just that 
with respect to environmental whistleblower laws. The re-emergence of 
the sovereign immunity doctrine is rooted in the argument that Congress 
did not explicitly indicate its intent to waive sovereign immunity. 
Thus, Congress could put this legal shibboleth to flight by 
affirmatively declaring that these laws apply to the federal government 
in the same manner as they apply to the private sector.
    3.  Legalize Federal Scientist Participation in Professional 
Societies. Anything that increases the transparency of agency 
scientific decision-making, particularly by involving knowledgeable, 
credible and disinterested outside specialists contributes to the 
factors safeguarding scientific integrity. Congress should make it 
explicitly clear that federal employee involvement with professional 
organizations dedicated to improving the quality of science is not a 
real or apparent conflict of interest but is just the opposite--an 
activity which furthers the agency mission. Congress should revive the 
stillborn 2005 FWS initiative on professional openness by a) directing 
agency ethics offices to encourage rather than discourage staff 
involvement in professional societies; and b) promoting, through 
resolution, appropriation language or other mechanism, federal 
participation and partnerships with outside scientific bodies.
E. Put Some Teeth into the Right to Communicate with Congress
    Congress itself can also play a direct role in strengthening the 
scientific integrity within federal service. The threat of disclosure 
to Congress can deter or reverse informational distortions.
    Unfortunately, the ability of federal employees to communicate with 
Congress is tenuous.
    During the past few years there have been many instances where 
scientists and technical specialists have been constrained from 
communicating findings directly to Congress. Probably the most 
prominent example involved Richard Foster, the actuary for the Medicare 
program, who was prevented from informing Congress the pending 
prescription drug bill that was ultimately enacted would cost 
approximately $150 billion or more than had been previously estimated.
    In its examination of that case, the Congressional Research Service 
(CRS) opined that the restraints placed on Mr. Foster forbidding him 
from revealing the ``true'' cost estimates violated prohibitions (the 
``Lloyd Lafollette Acts'') against interference with communications 
between a federal employee and a Member of Congress. Notwithstanding 
that finding, CRS was silent as to what could or should be done either 
in that case or to prevent future violations. A review of those 
prohibitions shows that Congress envisioned the denial of appropriated 
funds to support such violations but Congress failed to provide a means 
for invoking that sanction. Without a way to enforce it, the law 
becomes merely a rhetorical prop.
    PEER would suggest that Congress put some teeth in laws that 
safeguard its right to receive information from federal employees. 
Authorizing citizen suits to recover appropriated funds misused in 
restricting communication directly from the salaries paid to officials 
who violate this law would allow Members of Congress to directly 
enforce these laws. This somewhat personal yet public benefit remedy 
would allow individual suppressors of information to be judged in the 
bright light of day.
Conclusion
    On the issue of political interference with ESA science, 1) the 
Science Advisor to the President; 2) the Chief Science Advisor to NMFS) 
and 3) and the Science Advisor to the Interior Secretary have all been 
conspicuously silent. Presumably, it is their jobs to take the lead in 
identifying and rooting out misuse of science but, in actuality, these 
positions function as cheerleaders and apologists.
    It is precisely because political interference has become so 
ingrained in these two agencies, Interior and Commerce, charged with 
implementing ESA that a dramatic reversal will be required to purge the 
political content from ESA scientific findings. The first step toward 
pursuing this improvement is admitting the problem.
    If, however, the current administration does not concede that its 
political intrusions have obstructed ESA, it is unlikely to seek any 
remedies--and that job will fall to Congress and the courts.
ATTACHMENT I

                The Council of Civic Associations, Inc.

                         24910 Goldcrest Drive

                     Bonita Springs, Florida, 34134

                             (608) 238 0539

                              May 9, 2007

To The House Committee on Natural Resources:

    The attached report has been prepared by the Council of Civic 
Associations, Inc., a not-for-profit organization founded in 1996. We 
are affiliated with over 70 civic organizations, government liaisons 
and community leaders in South Florida. Our goal is to make government 
at all levels accountable for enforcing the laws for which they are 
responsible. We believe laws enacted for the benefit of all citizens 
are being ignored in order to benefit specific special interest groups.
    The following contains excerpts from a report submitted by the 
Council of Civic Associations, Inc., (CCA) to the House Committee on 
Natural Resources on March 8, 2007. This 28-page report and attachments 
document the disregard for the enforcement of existing laws that has 
become commonplace among governmental bodies at the federal, state and 
local levels. It further documents the proactive marginalizing or 
outright silencing of governmental employees who conscientiously 
attempt to live up to the responsibilities of their positions.
    Although the House Committee on Natural Resources May 9th hearing 
will focus on the implementation of the ESA, the Committee should take 
note that the Clean Water Act is a vital component to protecting 
endangered species in Florida, where there are seven endangered, 
species, seven threatened species and 21 species of special concern 
that are wetland-dependent.
    At the same time, the public agencies which are charged with 
protecting resources are missing in action. The U.S. Environmental 
Protection Agency (USEPA) office in SW Florida has been closed and the 
West Palm Beach office has been stripped of its former authority with 
key staff reassigned to report to Atlanta. The Southwest Florida U.S. 
Fish & Wildlife Service (USFWS) ecological field office responsible for 
area permit review, including biological opinions has also been closed. 
Mr. Bubba Wade, a Sr. Vice President of U.S. Sugar, is a governing 
board member of the South Florida Water Management District and 
represents sugar interests on the Board.
    As you conduct your committee's oversight activities, we would ask 
you to direct attention to:
    1. The absence of any meaningful cumulative analysis of the scores 
of new developments covering thousands of acres taking place in the 
midst of what is universally known as some of the most sensitive 
wildlife habitat in the U.S., including Picayune Strand State Forest, 
Big Cypress National Preserve, Florida Panther National Wildlife Refuge 
(NWR), Ten Thousand Island NWR, Rookery Bay National Estuarine Research 
Reserve, J.N. Ding Darling NWR, Estero Bay Aquatic Preserve and public 
lands purchased with federal funding, e.g., Southern Golden Gate 
Estates and Fakahatchee Strand.
    The slash pine forests, including hydric pine flatwoods, which are 
rare outside of SW Florida, have been identified as an imperiled 
ecosystem due to a loss of 88 percent from 1900 to 1989 (Source: Noss 
and Peters, 1995). Hydric pine flatwoods support 31 mammal, 139 bird, 
40 reptile, 17 amphibian and 22 fish species, including 100 federally 
listed species, 274 migratory bird species occur in SW Florida; 175 of 
these are found in aquatic habitats. Of the 992 plants species found in 
hydric pine flatwoods, 98 species are state listed (Source: Florida 
Game and Fresh Water Fish Commission [Wood, 1994]).
    As a FWS spokesperson stated:
        ``The panther represents what is left of the eco-system, a 
        symbol of everything else that is going to disappear unless 
        habitat is set aside.''
    2. The decision of the USFWS to stop issuing jeopardy biological 
opinions (JBOs) for any of the myriad of proposed developments 
destroying the tattered shreds of endangered species habitat in this 
region. The question your committee should answer is--what good is the 
ESA if the principal federal enforcement agency is scared to death to 
use it? Even the U.S. Army Corps of Engineers (USACE) Jacksonville 
District Chief Regulatory Office, Dr. John Hall (RET.), claimed in an 
e-mail that ``the political pressure on FWS is evident to anyone who 
reads the records of their BO's on the panther.'' ``In my opinion, they 
play politics themselves.''
    Some examples include--
      A FWS field biologist was told to re-write the biological 
opinion for Winding Cypress [permit proposal], which is located in the 
middle of a swamp at the headwaters of Rookery Bay National Estuarine 
Reserve. He was told to write the opinion with a ``positive spin,'' and 
when he refused, it was re-written for him. The developer--a major 
political donor--complained to his superiors. ``I was told to back off 
under threat of insubordination.'' According to the biologist, ``the 
compensation proposed was less than the formula used at that time 
projected.'' In a personal e-mail, the biologist commented ``A lobbyist 
for Van Ness Feldman, and a good friend of Jay's (former FWS Vero Beach 
Ecological Services director)'' intervened during the deliberations on 
panther habitat compensation for Winding Cypress. The FWS scientist was 
reassigned to another state.
      The FWS issued 58 recommendations of denial within the 
1998-2001 time frame and 15 incidental taking comments. Since 2000, the 
FWS has issued 20 biological opinions that have permitted major 
destruction of panther habitat. About 16,000 acres were destroyed or 
degraded in 11 of these projects.
      Facing pressure from developers and Collier County 
leaders, FWS shrank the panther focus area last December by nearly 
900,000 acres, an area roughly the size of Rhode Island. Land is 
vitally important for a species that requires up to 200 square miles of 
territory per creature. Yet, the FWS has never issued a ``jeopardy 
biological opinion'' that would halt a development in panther habitat. 
There have been 40 Florida panther deaths since 2000 and 11 died last 
year on Florida roads. This represents arguably more than 10 percent of 
the panther population.'' (Source: Naples Daily News).
      The FWS is now allowing developers to partially write 
their own biological opinions to--speed things up--on whether their 
project would doom the Florida panther to extinction (St. Petersburg 
Press).
      Naples Reserve, adjacent to the east boundary of Winding 
Cypress is the single project that FWS elevated to the Corps for permit 
denial. The Service request for denial went all the way to DC but was 
rejected by the Corps and the permit was issued.
      The FWS is not the lone recipient of political 
interference on the Winding Cypress project. The CCA was informed by a 
reliable source that Mr. Bob Szabo of the lobbying firm, Van Ness 
Feldman was brought in specifically to talk to Mr. Jimmy Palmer, 
regional administrator, USEPA, Atlanta, regarding the project. An e-
mail, from Palmer to the West Palm Beach office, dated 9/17/2002, 
states: ``Cool your jets and focus on the status of the matter. Bob 
Szabo (Van Ness Feldman--Wash. D.C.) is a friend of mine who is wired 
tightly into some VERY high places. He (and others) are (sic) voicing 
concerns about how Bruce [Boler] conducts his business.'' (Note: Boler 
was an USEPA biologist who claimed it was permitted even though it did 
not meet water quality criteria at the time). Boler moved to another 
federal agency. He claims the developers were the ones most anxious to 
get rid of him because he objected to the development funded report 
that said wetlands create pollution.
    3. A plethora of biological, hydrological or other technical 
objections to development projects having been reversed, suppressed, 
diluted or otherwise obviated for reasons completely apart from 
technical merits of those objections.
                                 ______
                                 
    RECOMMENDATIONS: The following is a list of recommendations 
compiled by regional, state and federal regulatory sources to address 
some of the serious deterioration of natural resource protections in 
Florida:
    1. Congress should request a report by an independent source, e.g., 
the National Academies of Science, to determine how the Nation's only 
national estuary program established for preservation, the Charlotte 
Harbor National Estuary Program (NEP) area, had its resources so 
thoroughly degraded by federal actions in the ten years since it was 
established that it now needs a complete restoration program. EPA 
establishes NEPs yet during the worst of the destruction the EPA 
leadership remained silent. The EPA Office of Inspector General (IG) 
should investigate corruption at the top and how science-based 
information is not reported under the current leadership structure. The 
IG should report on the degradation that occurred since the designation 
of the NEP and what management reforms at the federal level are needed 
to ensure a restoration plan can be initiated and successfully carried 
out.
    2. The federal government should investigate questionable land 
deals for Everglades Restoration, e.g., Palm Beach Aggregates and the 
South Florida Water District (Source: Palm Beach Post).
    3. Congress must authorize the formation of an independent 
oversight committee to review USACE projects (McCain/Feingold 
legislation).
    4. Congress should form an independent authority to carry out the 
404 wetlands program and, in so doing, reduce the USACE role to that of 
a commenting agency. At the heart of the problem is a conflict of 
culture: the agency's role to find engineering solutions--weirs, 
canals, ditches, reservoirs--to accommodate the needs and impacts of 
growth while purporting to protect naturally functioning wetlands.
    5. Congress must authorize the EPA to withdraw Florida's authority 
to issue NPDES discharge permits under Clean Water Act (CWA). In a 
press release dated August, 2003, Senator Joseph Lieberman states: 
``The Florida Department of Environmental Protection/South Florida 
Water Management Department permit and certification programs are not 
meeting CWA standards.''
    6. Congress must amend the Clean Water Act to add clarity and 
certainty. At the same time, Congress must develop independent 
oversight to remove political and special interest influence.
    7. Congress must require that there is better, more streamlined 
communication between the agencies, whether they are federal or state. 
There is a long, unnecessary history of one agency not knowing (and not 
caring) what the other agency is doing. The result is that developers 
are able to play one agency against the other to the detriment of the 
environment.
    8. Fundamentally, the CWA will only be effective if the regulatory 
agencies decide to embark upon meaningful enforcement of the ESA and 
CWA. This means that both civic and criminal enforcement must be 
allowed.
Attachment II

                      U.S. DEPARTMENT OF INTERIOR

                     THE CODE OF SCIENTIFIC CONDUCT

To the best of my ability:
    > I will act in the interest of the advancement of science and 
contribute the best, highest quality scientific information for the 
Department of the Interior.
    > I will conduct, manage, judge, report, and communicate scientific 
activities and information honestly, thoroughly and without conflict of 
interest.
    > I will be responsible for the resources entrusted to me, 
including equipment, employees' time, and funds. I will be accountable 
for the prompt and accurate collection, use, and reporting of all 
financial resources and transactions under my control.
    > I will disclose the research methods to the local communities, 
Indian tribes, and other individuals whose interest and resource uses 
are studied; and respect the confidential and proprietary information 
provided by those individuals to the fullest extent permitted by law.
    > I will neither hinder the scientific and information gathering 
activities of others nor engage in dishonesty, fraud, deceit, 
misrepresentation, or other scientific, research or professional 
misconduct.
    > I will welcome constructive criticism of my scientific activities 
and information, participate in appropriate peer reviews, and critique 
others' work in a respectful manner amid objective scientific review.
    > I will be diligent in the creation, use, preservation, and 
maintenance of collections and data records; adhere to established 
quality assurance and quality control programs; follow the records 
retention policies of the Department; and comply with Federal law and 
established agreements related to the use, security, and release of 
confidential and proprietary data.
    > I will know, understand and adhere to standards of public 
information dissemination and the formal publication of scientific 
information and respect the intellectual property rights of others.
    > I will be responsible in all scientific activities for both the 
collection and interpretation of data I collect and the integrity of 
conclusions I present.
    > I will place quality and objectivity of scientific activities and 
information ahead of personal gain or allegiance to individuals or 
organizations.
                                 ______
                                 

      Response to questions submitted for the record by Jeff Ruch

Questions from Republican Members
(1)  Would you agree that if you phrase a question a certain way in a 
        survey you can get the response you are looking for?
    Phrasing of survey questions affects both response rate and 
response pattern.
    If the Republican Members are interested in ensuring that a 
dispassionate survey of U.S. Fish & Wildlife Service (FWS) scientists 
has been conducted, PEER stands ready to assist you in conducting your 
own survey of that cohort.
    The PEER/UCS survey questions were vetted by a committee on current 
and former FWS employees so that each statement on the survey form 
reflected the precise concern being voiced by their colleagues.
    Attached are that full survey and the results. Should the 
Republican Members have problems with the phrasing of any particular 
item in the survey, please do not hesitate to share it.
    The essay question offered FWS employees a free form venue to vent 
on the issue of scientific integrity in any manner they chose. I would 
request that the Republican Members read the essays written by the 
scientists and hear the concerns directly from the horse's mouth.
(2)  What do you think of Mr. Horn's testimony where he describes 
        making policy decisions after receiving differing scientific 
        recommendations? Do you agree that in those cases it is 
        necessary for a policy person to make decisions that not all 
        scientists would agree with?
    I found Mr. Horn's testimony to be disjointed and contradictory. 
Mr. Horn is not a scientist but is a lobbyist for the recreational 
vehicle industry.
    On one hand, he appeared to be saying that all ESA decisions are 
not based on pure science but are judgment calls and then proceeds to 
attack the decision to consider listing the polar bear as a ``triumph 
of politics over science.'' Go figure.
    As explained at the hearing, the ESA lays out a distinct role for 
what have been labeled ``policy considerations.'' Otherwise, the ESA 
decisions are, by law, required to reflect the best available science.
    An untrained ``policy person'' (i.e., political appointee) has no 
business acting as a scientific referee or peer review committee of 
one.
(3)  Would you agree that science is never clear cut, that two 
        scientists could research an issue and come up with different 
        results or opinions?
    I am not a scientist.
    From my experience as a lawyer I believe that, on many issues, 
scientific consensus is possible and that courts frequently assess 
scientific evidence for purposes of determining whether a legal 
threshold has been met.
    Conversely, there are instances where scientists interpret the same 
facts differently. That is precisely why proposed Administration 
policies restricting the speech and publication of research by federal 
scientists are inimical to the promotion of scientific integrity.
                                 ______
                                 
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Results of 2005 USFWS Ecological Services Survey

    Below are essay responses to the following survey question:
42. The integrity of the scientific work produced by USFWS Ecological 
        Services could best be improved by:
    This is a sample of some of the most compelling or representative 
answers from each region. The essay responses are sorted according to 
region, Region 1 through Region 7, ending with responses for which the 
region is unknown (due to missing postal stamp on return envelope). 
Within each region the responses are displayed according to one of 
eleven popular topics or miscellaneous (category twelve). Each response 
is preceded by a code indicating several things about that particular 
respondent. The code is: survey number assigned by PEER--region--
state--manager (M) or staff (S).
    Please let me know if you have any questions about this 
information.
REGION 1 (Pacific: CA, NV, ID, OR, WA, HI)
I: Removing politics/political influence over scientific decisions
    414-R1-OR-M
    Removal of Julie McDonald from Dept of Interior. I have never 
before seen the boldness of intimidation demonstrated by a single 
political appointee. She has modified the behavior of the entire 
agency.
    I believe there should be a through investigation of her abuse of 
discretionary authority and modification of science information 
provided in FWS documents.
    407-R1-CA-S
    The biological determinations of the field offices should not be 
ignored and overridden by non-biologists in the Interior. If they must 
override field office biological determinations they should do so early 
in the process rather than at the last minute.
    405-R1-NV-S
    Exposing interference at the department level (Julie MacDonald)
    004-R1-CA-S
    Staying true to biological analyses regardless of the political 
climate.
    013-R1-ID-S
    Reducing the influence of employees in the assistant secretary of 
Interiors office on field office decisions.
    014-R1-ID-S
    I do not know if improvement is possible in this political climate. 
I have been through the reversal of two listing decisions due to 
political pressure. Science was ignored--and worse manipulated to build 
a bogus set of rationale for reversal of these listing decisions. I 
have very little hope for any improvement--and I fear that the current 
trend of political meddling will only worsen in the next four years.
    019-R1-NV-S
    I have never seen so many findings and recommendations by the field 
be turned around at the regional and Washington level. All we can do at 
the field level is ensure that our administration record is complete 
and hope we get sued by an environmental or conservation organization.
    028-R1-HI-S
    It is wrong that non-scientists take our work and use only the 
parts of it they like and cut out the rest.
    036-R1-ID-S
    Removing the politics from supposed ``Scientifically-based'' 
decisions. At least tell the public the decisions are based on policy 
and don't try to hide behind science.
    038-R1-CA-S
    There needs to be a fire wall between political appointees in the 
Dept of the Interior and FWS so that we can produce rules and reports 
without political interference
    040-R1-HI-S
    Remove politics from the process. Everyone is afraid to make any 
decisions or conduct any action that would be views as controversial. 
Biologists on the bottom just try to keep their heads down and stay out 
of trouble. They have absolutely no power. All they can do is write 
memos to the files defending their positions that only come to light if 
the files get FOIA'd. The process really is broken, but not in the ways 
discussed by politicians and the press.
    042-R1-WA-S
    Dept of Interior is making substantial changes to the Ecological 
Services related decision with no scientific analysis or basis.
    045-R1-CA-S
    Figuring out a way to reduce political influence on decisions, 
Interference from politicians and commercial interests undermine 
successful implementations of the Act. Those people with power 
defiantly get more advantageous BOs and receive priority in processing.
    056-R1-WA-S
    The Dept. of the Interior should be using the scientific 
information generated by FWS ecological services staff and making 
decisions based on science and not on political agendas of the current 
administration.
    057-R1-WA-S
    Only do those things if we are committed to making science-based 
rather than political-based decisions. No sense in making science more 
credible if we have no intention of using science in the decision-
making process.
    060-R1-OR-S
    Keeping politics out of our staff work and working from a 
collaborative and objective point.
    061-R1-WA-S
    Separating scientific findings from management decisions that are 
not based solely in science.
    066-R1-WA-S
    Allowing USFWS scientists to make decisions, rather than having 
them dictated by the DOI.
    075-R1-OR-M
    If the DOI would allow FWS to determine or resolve issues using 
scientific and other information, without interference during the 
development of studies and documents. There are a number of cases in 
Region 1 where DOI managers such as Manson have called biologists in 
the field offices or even at home to question work, thus [averting] the 
entire FWS structure and process.
    079-R1-CA-M
    Reducing or eliminating interference from DOI political appointees 
(Craig Manson, etc.) and their special assistants (especially Julie 
MacDonald).
    084-R1-WA-M
    Removing political appointees from USFWS science determinations,
    098-R1-OR-S
    Taking politics out of the decision making process.
    100-R1-ID-S
    Less direct involvement by DOI, minimize DOI changes to FWS Federal 
Register publications.
    102-R1-NV-S
    Do not mix politics with biology.
    104-R1-ID-S
    Making decisions based on the best current science.
    107-R1-OR-S
    Doing work based on science rather than political commercial 
interests and direction. We are not allowed to be honest and 
forthright, we are expected to rubber stamp everything. I have 20 years 
of federal service in this and this is the worst it has ever been.
    108-R1-NV-S
    Relieving managers and supervisors from the pressures of political 
influence.
    111-R1-CA-S
    Stop letting the BIA lawyer Julie MacDonald rewrite USFWS documents 
with no factual support.
    112-R1-WA-S
    USFWS is getting quite a bit of pressure from the DOI these days 
and most bios I know expect that pressure level to increase over the 
next four years. The Biologists I know who deal with controversial ESA 
issues are striving to maintain a good administrative record pf the 
recommendations that are brought forth to management. So that they can 
provide that documentation if needed. It appears that at the DOI level, 
politics comes into place and sometimes trumps science.
    113-R1-HI-S
    Removal of political influence at higher levels.
    116-R1-OR-S
    Support for conservation plans that allow time to actually go into 
effect rather than changing or doing away with them as a result of 
politics. In general, let science and not politics dictate decisions 
more.
    118-R1-CA-S
    Not allowing political influence to drive the decision making 
process.
    126-R1-HI-M
    Biologists being able to write their documents with our changes 
because of politics and concern about upsetting some group. Just let us 
do our jobs and don't tell us we don't know how to write valid 
scientific documents because we do. That's what we were hired to do in 
the first place.
    129-R1-CA-S
    Not allowing DOI to override a scientifically sound federal 
register rule-making decision.
    132-R1-WA-S
    Science not politics.
    137-R1-CA-S
    Keeping politics out of biological decision making.
II: Increasing funding or resources
    004-R1-CA-S
    Provide technical staff with sufficient resources (bucks, bodies 
and brains) to get the best possible product out.
    040-R1-HI-S
    Dramatically increase funding and permanent staff.
    032-R1-CA-S
    Allowing for more staff to complete the mission of the FWS. More 
staffing would improve the turnaround time on projects and allow staff 
to address litigious workload. Increase turnaround time would improve 
the public perception of FWS.
    020-R1-CA-M
    Several important projects have and are under funded. Good science 
takes time. More time requires more funding. Additional staff can 
improve time deadlines-more staff requires more funding. The balance 
between a well done project and making a deadline is funding.
    028-R1-HI-S
    We are also terribly under funded by the Bush Administration. We 
are putting out fires and have no funds to do the real work of 
recovery, implementing recovery actions or doing proactive 
conservation.
    045-R1-CA-S
    Finding needs to be increased drastically; not cute. And you can't 
recover species we don't invest some serious dollars into recovery and 
reduce some of the threats.
    046-R1-WA-S
    A budget increase to fund more technical staff and distribute large 
workload.
    053-R1-WA-S
    More resources and staff, we are overworked which leads to poor 
morale and poor work performance. The resources are suffering because 
ES can't do the job adequately.
    101-R1-CA
    Appropriations that meet work-load demands.
    111-R1-CA-S
    Hire more biologists to do all the work we are swamped with. We 
cannot turn out good documents in the time allotted with current staff 
levels.
    113-R1-HI-S
    Substantially increase funding.
    118-R1-CA-S
    Fully funding ecological services in order to proactively deal with 
issues, instead of constantly reacting
    127-R1-ID-M
    Improved funding for research specific to the work of ecological 
services. Sufficient staffs to thoroughly manage interpret and 
integrate scientific information.
III: Devoting more attention to professional development, such as 
        access to scientific literature and time to review it.
    062-R1-WA-S
    Financial support for staff to participate in professional 
societies and training.
    114-R1-WA-S
    More time to do research and more time to attend scientific 
meetings. More time to publish; now I can't do anything but crank out 
biological opinions.
    118-R1-CA-S
    Allowing scientists to fully keep abreast of the most recent 
science literature.
    122-R1-HI-S
    Allowing biologists time to keep up with the scientific advances in 
the field and time to use scientific techniques in conducting their 
work. Also providing them with real opportunities for career 
advancement based on scientific expertise, not supervisory.
    124-R1-WA-S
    Having the financial resources to keep up with scientific 
developments (i.e., modeling, quantitative process) that we could 
incorporate into our analysis.
    132-R1-WA-S
    Increased training and professional development
    138-R1-OR-S
    Assuring that ES staff are given opportunities to receive 
appropriate training, attend scientific conventions and participate in 
or conduct science research.
IV: Improving the quality of FWS management.
    410-R1-OR-S
    I think the service is being set up for a hall that is now being 
directed from within. Reduced funding for ``white hot'' programs 
(Partners, Jobs in the Woods), management changes to proposed 
recovering plans to make ESA look like a terrible program, and 
agreement by new appointees that ``ESA should be changed''.
    012-R1-ID-S
    Empowerment of staff biologists with funds to be directed to the 
projects they are working on. The model for this is the Partners 
Program and Candidate Species Program.
    041-R1-WA-S
    Hiring properly trained supervisors who have a background in 
species conservation as well as business administration and 
supervision.
    082-R1-ID-M
    Hiring management that has experience and interests in 
conservation. Don't know how this can be accomplished as much of our 
management in the last four years has been appointed or removed outside 
the normal hiring practices.
    094-R1-CA-S
    Careful consideration of filling vacancies and promotions to place 
competent, qualified people as supervisors and mid-level management. 
There is way too much cronyism and nepotism placing ``friends'' in 
higher grade positions that could have been filled by new blood off the 
list.
    099-R1-OR-S
    More financial resources to have enough staff time to adequately 
research, review and assess impacts to our trust resources.
    104-R1-ID-S
    Supervisors managing biologists should have a biology background.
    115-R1-WA-S
    Making sure supervisors and coordinators who review ESA and section 
7 consultations actually know the law and our handbook for implementing 
it (send them to mandatory training).
    Foster an atmosphere where supervisors and coordinators don't seem 
to flourish by keeping a low profile instead encourage risk taking 
(when reasonable) and confidence and don't be afraid to make 
politically unpopular decisions
    125-R1-HI-S
    Providing strong leadership in the USFWS from the top down. The 
message we are receiving from the current administration is that our 
agency is not important.
    132-R1-WA-S
    Continued development of meaningful partnerships
    137-R1-CA-S
    You need to recognize that what goes on in field offices can often 
approach the ideal of what FWS mission is-but as it goes up the chain 
getting closer to DOI, this ideal becomes lost in career/ego protection 
for those in executive service.
V: Restoring the research arm to FWS (now with USGS)
    057-R1-WA-S
    Give us back out research branch. Improve and encourage training 
and peer conferences.
    084-R1-WA-M
    Return of Biological Research Branch to the USFWS (away from the 
USGS).
    124-R1-WA-S
    Recombining with USGS biological Resources Division.
    133-R1-OR-M
    Bring back our research agency.
VI: Restoring the conservation ethic to FWS.
    411-R1-WA-S
    I am discouraged that no matter what the project, somehow we will 
ok it. We have to. We cannot stop a project.
    409-R1-WA-
    Slowing advancements past GS-12 without supervising, based on 
proven scientific publishing's in peer-reviews journals.
    002-R1-CA-S
    FWS could actually follow the law and implement regulations. Stop 
making excuses to the public, developers and politicians for doing 
their job.
    017-R1-OR-S
    Emphasizing habitat needs for fish and wildlife above partnering or 
political agenda. The USFWS can be proud of its history and those 
leaders who shaped the high standards on refuges, migratory protection 
and development of the ESA. The service needs to proudly defend the 
existing FWS institutions and Acts and continue to recover habitat.
    019-R1-NV-S
    It is the unwillingness of decisions makers to do the right thing 
for the resource. At the field level, my supervisor is faithful to the 
resources but is frequently told to back off from the regional office 
and DC.
    025-R1-ID-S
    By Balancing development concerns (short term) with long term 
sustainability.
    041-R1-WA-S
    Giving nationwide guidance and policy on section 7 procedures that 
emphasize and explain the portion of the regulations giving ``the 
benefit of the doubt to the species.'' Giving standardized trainings on 
section 7 procedures so all will implement it correctly.
    043-R1-CA-S
    Reducing retaliatory reprisals from management for doing complete 
assessments.
    044-R1-WA-S
    Full support by immediate supervisors and management to ``err on 
the side of the resources'' rather than with the project proposals.
    069-R1-WA-S
    Things can be improved by having an administration in Washington, 
D.C. that supports what we do.
    080-R1-CA-S
    Upper management seems to have no backbone when it comes to 
upholding the ESA.
    117-R1-WA-S
    An administration that values conservation that supports 
environmental laws enacted by congress that balances issues of public 
vs. commercial interests.
    122-R1-HI-S
    USFWS appears to value science rigor, but does not reward their 
staff for their scientific expertise. I personally feel I have very 
little opportunity for career advancement within FWS beyond my current 
level (GS-12), despite carrying out extensive research on my own time 
and publishing numerous scientific papers. I have reached the end of 
the line and am wondering if I mistakenly gave up my scientific career.
    129-R1-CA-S
    Focusing more attention on relationship with other state and public 
agencies, groups and offices.
    137-R1-CA-S
    Recognizing that we are beyond ``striking a balance'' because we 
are dealing with threatened and endangered species--already out of 
balance. To balance need to lean more on the side of conservation.
V1I: Increasing the transparency of scientific decisions, through, for 
        example, peer review.
    018-R1-WA-S
    Allowing the science basis for decisions to be clear and available 
to the public
    027-R1-CA-S
    Please look closely at what is happening to the Recovery 
Implementation money. In our office about one tenth of the money makes 
it to the Recovery Branch and about one quarter of that makes it to 
recovery implementation--in spite of the fact that contracts are lined 
up for spending the money on recovery. Where does the rest of the money 
go? Is this happening in other offices?
    029-R1-HI-S
    For conservation to be effective, we need society to better 
understand the negative ramifications of global habitat destruction and 
degradations. We know enough
    Now to know we need to reverse these trends but society ignores it.
    062-R1-WA-S
    More active role in conservation of non-listed species-> FWCA
    067-R1-CA-S
    We are also often at the mercy of peer-reviewed academic science, 
which generally sucks.
    084-R1-WA-M
    Improved use of external peer review.
    088-R1-NV-S
    Increased coordination between USFWS Fisheries and the USFWS 
Ecological Services.
    090-R1-ID-S
    Internal steps to increase peer review and transparency in general.
    091-R1-ID-S
    Greater transparency in justification for making biological 
decisions. More public awareness of the decision making process.
    101-R1-CA
    Getting rid of critical habitat would be big help. It is too big of 
a drain on resources fro real little value.
    117-R1-WA-S
    What I have seen in the last 4 years is an increase in bureaucratic 
red tape, mindless administrative tasks, overturning of science-based 
decisions with our really making those decisions transparent to the 
public.
VIII: Decreasing control of contractors and client agencies over 
        scientific conclusions.
    411-R1-WA-S
    Working with most (not all) tribes is a problem. They know that if 
they grumble long enough-that political pressure will ease 
restrictions.
    408-R1-CA-M
    We're becoming a third world country in that our resources can be 
bought by commercial interest, no mater what the law.
    013-R1-ID-S
    I feel some of the change toward involving public and stake holders 
has improved the quality of our recovery planning documents.
    074-R1-OR-S
    Producing scientific work. Not by using other agencies' scientific 
research.
    135-R1-CA-S
    By having our entire budget come directly to the Service and not 
through another agency such as BOR. When parts of our budget come 
through BOR (Bureau of Reclamation) the only items that receive 
attention are those of interest to BOR and their political friends.
    136-R1-CA-S
    Focusing on conservation strategies first and deadline second.
X: Settling or changing the role of lawsuits.
    008-R1-OR-S
    If the environmental groups stopped suing us and imposing 
ridiculous timeframes to make listing and critical habitat 
determinations. We are not given enough time or funding to evaluate and 
make scientific decisions because of court determined deadlines which, 
is counter productive to the environmentalist goals of protecting 
species.
    060-R1-OR-S
    Getting back to the spirit of the ESA rather than being paralyzed 
by the process of ESA. (For example, the recovery work is insignificant 
compared to the amount of time and money used to defend lawsuits.
    110-R1-CA-S
    Ensure Recovery money is spent appropriately.
    136-R1-CA-S
    Focusing more one settling lawsuits than fighting against them. We 
need to get the funds to take care of our listing critical habitat 
backlog so we're now in perpetual crisis mode.
XI: Creating a career ladder for agency scientists.
    120-R1-HI-M
    Develop a two track structure at FWS:
    One track is management and administration.
    One track is science analysis.
    The scientific track analyzes the environmental and biological 
issues and stays current with the science literature and perspectives. 
The admin track deals with policy. Both tracks would write independent 
final analyses that are part of the admin record.
    133-R1-OR-M
    Create an advancement path based on scientific research.
XII: Miscellaneous.
    006-R1-CA-S
    Ecological Services doesn't produce scientific work. Opinions are 
not based on science/data. Millions of dollars are wasted yearly on 
well-intentions but poorly designed/implemented/analyzed projects that 
don't get us information or recover species. Supervisors need to know 
they are tasking staff with things they can't do. This also leads to 
poorly conducted contract work. Because staff are simply not trained in 
experimental design and estimation of techniques.
REGION 2 (Southwest: AZ, NM, TX, OK)
I: Removing politics/political influence over scientific decisions
    143-R2-OK-S
    Reduce politically-based interference with agency scientists and 
scientific decisions by requiring challenges to be made through formal 
channels and to be based on science or other applicable grounds, not 
mere greed.
    148-R2-TX-M
    Decreasing political influence including the pressure and 
willingness of upper and mid-level managers to respond to it.
    151-R2-AZ-S
    Keeping it scientific and biological when the decisions require it. 
Biological opinions are supposed to be based on biology, not political 
expediency or [cowering] to some user group.
    160-R2-OK-S
    Less influence by political staff
    163-R2-AZ-M
    Biological, not politically based decisions. Being able and 
encouraged to implement the real intent of laws, ESA, CWA, NEPA etc. 
not implementation based on needs of industry.
    164-R2-AZ-M
    Getting rid of Julie McDonald.
    167-R2-AZ-S
    Providing rigorous documentation of scientific decisions is already 
required. I wish managers would provide similar documentation, (phone 
records, and memos to file) of those when marching orders are given by 
a member of congress, an appointee, an RD etc. In other words, it 
should be documented when a scientific process is usurped by political 
considerations
    170-R2-NM-S
    Allowing biologists to make biological assessments before the 
injections of politics.
    171-R2-NM-M
    Allowing scientific rather than political decisions.
II: Increasing funding and resources.
    143-R2-OK-S
    Increase funding for all ES activities, but especially those less 
popular with special interests, including ESA, see 404 CWA and 
Environmental Contaminants.
    394-R2-NM-M
    Having adequate staff and providing adequate funding for all FWS 
program mandates.
    159-R2-OK-M
    Provisions of more adequate staff and funding levels.
    178-R2-TX-M
    Better funding, filling vacancies, money to obtain peer review.
III: Devoting more attention to professional development, such as 
        access to scientific literature and time to review it.
    151-R2-OK-S
    Greater staffing levels would allow more training, more time to 
keep up with literature and more time spent producing quality products. 
I have a stack of literature 18'' high that needs to be logged, read 
and filed!
    152-R2-TX
    Stay up to date.
    169-R2-AZ-S
    Allowing and paying for scientists to remain current in their 
specialty field.
IV: Improving the quality of management.
    140-R2-TX-S
    Removing fat at the top of the bureaucratic food chain, which 
increases distortions of goals or objectives both up and down the 
chain.
    158-R2-TX-S
    The Texas state Admin is commonly referred to by the staff as Dr. 
Evil; his underling is Minnie Me: No integrity or leadership.
    170-R2-NM-S
    In region 2, the regional director is more a tuned with the Cattle 
Growers Association than his own ES biologists.
    173-R2-NM-M
    After 4 years they have selected managers who will parrot their 
beliefs as a result with few exceptions the entire echelon of FWS are 
not advocates for the fish and wildlife.
VI: Restoring the conservation ethic to FWS.
    163-R2-AZ-M
    We need to get back to being advocates for the fish and wildlife 
resources, not advocates of development and big industry.
II: Increasing the transparency of scientific decisions, through, for 
        example, peer review.
    158-R2-TX-S
    Quit giving lip service to peer review and working with others--
start doing it.
IX: Expanding use of partnerships.
    175-R2-OK-S
    Most importantly, the Partners for Fish and Wildlife program is the 
only way to affect listed and declining species on private lands. This 
program is severely under funded and still too focused on waterfowl and 
wetlands. This program is the only way to ``shelter'' recovery money 
from litigious HCP suits, etc.
REGION 3 (Great Lakes: MN, IA, IL, IN, WI, MI, OH, MO)
I: Removing politics/political influence over scientific decisions
    181-R3-MN-S
    Re-instating ecological services field office oversights on 
restoration grant programs. More money is now funneled into programs 
such as private stewardship grants which are administered by non-
biologist bureaucrats in the regional office who give out the money 
without sufficient scientific oversight or accountability to project 
effectiveness.
    182-R3-WI-S
    Political influence has been moving downward ever since and it is a 
corrosive, negative force on environmental agencies.
II: Increasing funding or resources.
    181-R3-MN-S
    Filling positions vacated in the past four years. The work load is 
the same or greater, but there are fewer people due to budget cuts
III: Devoting more attention to professional development, such as 
        access to scientific literature and time to review it.
    179-R3-WI-S
    Encouraging scientists to keep abreast of scientific information 
(e.g., Membership in professional societies, pay for them to attend 
prof meetings.) and allowing scientists to do their job-make sure they 
can focus on getting the science right before they are bombarded with 
the social, political and economic angles that come with each issue.
    181-R3-MN-S
    Encouraging participation actively in professional societies (we 
currently have no resources for this and must do it at our own time and 
expense). Reinstating our training budget, this is now laughably small. 
We are priced out of most technical training, unless we do it at our 
own time/ expense, providing access to current scientific journals 
(hard to do now unless there is a large university in town.
    185-R3-MI-M
    Here in ES field station we are under pressure to respond to issues 
on a timely basis and have to prioritize issues. This type of 
environment is not conducive to research (which requires large blocks 
of uninterrupted time and access to facilities and technicians.
V: Restoring the research arm of FWS (now with USGS).
    182-R3-WI-S
    Restoring research as a function of USFWS--loss of Region 8 
crippled us.
    185-R3-MI-M
    Give us back our research arm! USGS-BRD should be part of USFWS so 
that we can better integrate applied needs in the field with the 
research expertise of scientists who do research full-time.
VIII: Decreasing control of contractors and client agencies over 
        scientific conclusions.
    180-R3-WI-S
    Allowing ES staffs to more directly participate in development and 
implementation if surveys and studies related to the End Spp etc. 
rather than farm everything out to DNR and contractors.
    184-R3-IN-S
    Professionalism is downplayed at ES in favor of cooperation and 
diplomacy. Washington prefers to look at the big pictures but in my 
opinion it's the wrong big picture.
REGION 4 (Southeast: GA, AL, AR, FL, KY, LA, MS, TN, NC, SC, PR)
I: Removing politics/political influence over scientific decisions
    191-R4-FL-S
    Too many managers (gs-13) are too political (easily swayed by calls 
from regional offices and or politicians.) to make the correct 
decisions based on science.
    192-R4-AR-S
    Have politicians keep their noses out of things they don't know 
anything about. Have them stop meddling with changes to the endangered 
species act for political or monetary gain.
    195-R4-TN-S
    Field offices have highly qualified biologists who can make 
decisions and findings about species and habitats based on sound 
science. These findings are based on biological and ecological needs of 
the species and are but one facet to be considered in making a final 
decision. Wildlife laws have provisions and procedures for considering 
non-biological issues. Bottom line: Let ES biologists do their jobs; 
then incorporate their findings in the decision-making process as 
provided for in federal laws. Don't short cut around established 
procedures.
    198-R4-FL-S
    Making decisions based upon actual science and true effects to 
listed species after a full, complete and rigorous analysis of project 
impacts. Findings need to be based upon biology and ecology, not what 
is politically acceptable or tolerable to the applicants, politicians, 
developers and public.
    213-R4-FL-S
    Taking the politics out of the scientific decision making process; 
taking the fear and career intimidation off the backs of the 
biologists; promoting professionalism and integrity among the 
scientists.
    218-R4-FL-S
    Better support from Field Supervisors, Regional Office Line 
Supervisors and Washington Staff for Field Biologists instead of 
allowing politics or their career aspirations to override resources 
decisions.
    222-R4-FL-S
    Isolating FWS from politics.
    226-R4-LA-S
    Not watering down decisions made by staff by caving into political 
pressure!!!
    236-R4-FL-S
    Better separation of political appointees from decision making 
within FWS.
    254-R4-NC-S
    Removing politics and economics from the equation.
II: Increasing funding or resources.
    194-R4-AL-M
    As budgets fall and salaries benefits, solicitor cost is almost 
everyone becomes desk jockey.
    203-R4-KY-S
    Providing adequate staff, funding and support for the biologists to 
do our job.
    204-R4-FL-S
    Additional personnel and more appropriate/better use of experienced 
staff on critical issues.
    218-R4-FL-S
    Additional Staff to allow more in depth study on individual 
projects consultations. Workload is so heavy that decisions must be 
made without complete review of information.
    225-R4-MS-S
    Increase staffing levels. Instead of two people covering 32 
counties, at least double that so four folks could cover 8 counties. 
More staff = more proactive work at county level before more land 
clearing starts.
    239-R4-NC-S
    Improved funding.
    236-R4-FL-S
    Adequate funding from congress and the administration.
    242-R4-MS-S
    Adequately funding the programs involved.
    262-R4-FL-S
    More staff resources to tackle the heavy work-load.
III: Devoting more attention to professional development, such as 
        access to scientific literature and time to review it.
    187-R4-FL-S
    More support from agency staff to participate and interact with 
professionals, organizations, agency researchers, and university 
researchers. Also funding to attend organize and influence professional 
society workshops.
    259-R4-GA-S
    Scientific and policy documents cannot keep pace with the barrage 
of impacts. Therefore, biologists spend almost all of their time 
fulfilling permit applications and have no time to monitor whether or 
not recommendations or requirements are implemented. This disparity 
means that true impacts to species are not fully understood by 
biologists
    260-R4-FL-S
    Each biologist is over-worked, not allowing for quality work and 
more time is spent on administration paper work every year.
    225-R4-FL-M
    Our office doesn't really do research. We could benefit by 
subscribing to a citation database soft ware or having annual 
scientific needs assessments and improve cooperation from the USGS.
    201-R4-FL-S
    Better communication and information sharing, providing journal 
articles to staff.
    211-R4-NC-S
    Enhancing access to peer reviewed literature via internet ( the 
inter library loan is often unavailable or too slow to meet timelines 
for projects). Increasing funds to direct applied research targeting 
project ``review issues (especially to thresholds of environmental 
change and resulting impacts to listed species.) Evaluation of 
standards within the Agency, including better support/backing of 
scientific staff and recognition of time to collect, synthesize and 
interpret best available info.
    243-R4-MS-S
    Increase collaborative studies with university and state fish and 
wild life agencies and other federal agencies. This would ensure that 
study resultions would be more accepted by the scientific community.
IV: Improving the quality of management.
    401-R4-GA-S
    I feel that much of my time is spent on clerical type duties 
because management doesn't have the time to analyze efficiency of our 
operation.
    199-R4-FL-M
    Reducing rather than penalizing integrity.
    248-R4-FL-S
    I believe that the real problem with the agency lies with upper 
level management. Most of the time the fundamental science used to 
formulate biological opinions is sound and the lead biologist submit a 
quality product to the supervisor. Upper level management then buckles 
under political pressure and the recommendations/biological opinion 
initially submitted is revised and watered down to all the permit to be 
granted.
    201-R4-FL-S
    Removal of ``air of fear'' that staff experience just from asking 
questions of top management-even those non-scientific questions. I was 
once told after a staff meeting that it is not in my best interest to 
put the Field Supervisor ``on the spot'' with questions. In the 2 years 
following I have not asked any more questions even though I am unsure 
about issues in my office--for fear of reprisals
    253-R4-FL-S
    Remove [Vero Beach Field Supervisor Jay] Slack.
    215-R4-FL-MS
    Could be best improved by managers at all levels who are willing to 
listen; set aside political influences for ``a moment'', consistently 
interact with staff, remove biases toward researchers, empower staff, 
etc.
    240-R4-MS-S
    Reduce the RO supervisory staff and increase the technical staff.
    241-R4-MS-S
    Favoritism when hiring should be eliminated (climbers are bad 
scientists).
VI: Restoring the conservation ethic to FWS.
    206-R4-FL-S
    Starting at the executive office and working downwards electing/ 
appointing decision makers with a commitment to conservation ethic and 
support for endangered species recovery.
    225-R4-MS-S
    Reward management for making tough decisions on the side of the 
species not on the political side that favors development.
    228-R4-GA-S
    Promoting the priority of getting out into the field to learn the 
ecosystems
    239-R4-NC-S
    More backbone and less dog and pony show-more on the ground action.
VII: Increasing the transparency of scientific decisions, through, for 
        example, peer review.
    209-R4-AR-S
    Providing more regulatory authority and law enforcement 
capabilities in other programs such as CWA, MBTA and ESA.
    248-R4-FL-S
    Better peer-review.
X: Settling or changing the role of lawsuits.
    258-R4-FL-S
    Not having the workload be directed by litigations.
XI: Creating a career ladder for agency scientists.
    234-R4-FL-S
    Developing employees instead of losing them.
XII: Miscellaneous.
    194-R4-AL-M
    More LE and ESA, fills, contaminants, water quality issues. Greater 
cooperation by the EPA and state environmental quality division. The 
EPA is totally uncooperative in CWA; state division is probably the 
worst in the nation.
    234-R4-FL-S
    Consistent and accountable application of funds.
    239-R4-NC-S
    Stopping the USFWS from raising and stocking exotic species, 
particularly fish.
    246-R4-FL-M
    Undergrad and Grad schools need to offer Ethics courses.
REGION 5 (Northeast: ME, DE, RI, NY, MD, NJ, WV, PA, VA, NH, MA, VT)
I: Removing politics/political influence over scientific decisions
    264-R5-NH-S
    Getting the political appointees off our backs and let us do our 
jobs.
    275-R5-ME-S
    Keeping science and politics totally separate. Why can't we be 
honest when science points in one direction but political reality 
results in USFWS making a decision to do otherwise? Morale and 
credibility will improve if we are honest rather than trying to twist 
science to make politicians happy.
    293-R5-MD-S
    A top-down emphasis put on quality science (and the willingness to 
listen to it!). As it stands, FWS regional HQ, DOI and White House 
leadership are so hostile to our mission that they will subvert, spin 
or even illegitimize our findings. Without changing the leadership, 
having this discussion is probably futile.
    276-R5-PA-M
    Having regional office and Washington office staff who have the 
courage and integrity to stand up to political pressure and commercial/
business interests. It is at this level that scientific/biological 
determinations by field staff are not supported or are over-turned.
    Contrary to what the administration says--the issue is not peer 
review or failure to use ``good science.'' The ``goodness'' of our 
science is only questioned when it yields an answer that is in conflict 
with a commercial or political interest.
    278-R5-VA-M
    Incorporate commercial/economic and political concerns in making 
final recommendations and decisions, but don't manipulate the science 
to minimize or erase competing environmental concerns. (emphasis in 
original)
    281-R5-VA-S
    That the FWS scientific findings drive regulation and action for 
species and habitat rather than be altered due to political influence 
from within DOI.
II: Increasing funding or resources.
    398-R5-MD-S
    If ecological service offices were given actual project money, we 
could spend more time doing projects rather than time spent trying to 
find ways to pay for staff/projects.
    263-R5-NH-M
    More discretionary funding to contract for targeted or focused 
scientific studies. The money is needed early, when the issue concern 
is first identified, not later when it has reached crisis stage or we 
are facing litigation.
    266-R5-PA-S
    Adequate funding base programs so biologists have necessary time to 
perform the job they have been trained to do (as opposed to chasing 
soft dollars to keep program alive)
    270-R5-VA-S
    Increase the number of field biologists and decrease the number of 
upper management. Too many highly paid supervisors that don't work 
directly on species conservation or work in the field. In R5 we lost 
field staff in 2004 while gaining several upper level positions. In my 
office they are applying for raises for all supervisors.
    287-R5-NJ-S
    Increasing staffing and funding to allow appropriate time and 
attention to the issues related to project review, recovery, and 
candidate assessment.
    282-R5-ME-M
    Providing adequate funding and staffing levels.
    Continued budget cuts affect the long-term mission of the Service 
to adequately protection wildlife and habitat.
    283-R5-DE-S
    More funding--offices are chronically under-staffed; we're expected 
to do more with less; the best, most dedicated biologists are over-
worked and vulnerable to burn-out; when you're over-worked, quality of 
work tends to suffer.
III: Devoting more attention to professional development, such as 
        access to scientific literature and time to review it.
    398-R5-MD-S
    Promoting more participation in professional societies.
    267-R5-PA-S
    Sufficient funding and authorization for scientists to attend at 
least one professional meeting per year.
    394-R5-MD-M
    Providing more technical courses at NCTC instead of a slew of 
touchy-feely ones.
    284-R5-ME-S
    Better access to and collaboration with USGS biologists. Better 
relationships with universities and the Coop Program.
IV: Improving quality of management.
    271-R5-NJ
    ES program has been hurt by too many regional office appointees 
with lack of experience and no field office work.
    273-R5-VA-S
    Holding management accountable and implement consequences to them 
for poor performance.
    279-R5-VA-M
    Better leadership. The Service creates excellent staff biologists, 
but we do not groom leaders. Good biologists are hired for supervisory 
positions with little regard for supervisory skills.
V: Restoring the research arm of FWS (now with USGS).
    399-R5-ME-S
    Restoring research and scientific investigation capabilities to the 
service.
    394-R5-MD-M
    Giving back our research program from USGS.
    287-R5-NJ-S
    Returning our research arm which was transferred to USGS decreasing 
coordination with research scientists.
VI: Restoring the conservation ethic to FWS.
    265-R5-NY-S
    Using the precautionary principle as the norm rather than having 
the burden of proof lie with the resource agency.
    288-R5-ME-S
    Political decisions should be made at the HQ level, not at the 
regional or field level.
    286-R5-NJ-S
    Improving support of an [sic] field offices by the Regional Office.
    285-R5-PA-M
    By learning that at some point, it may be necessary to say ``no'' 
(i.e., not everything is ``win-win'').
VII: Increasing the transparency of scientific decisions, through, for 
        example, peer review.
    284-R5-ME-S
    State/regional peer review teams to review Service programs.
    281-R5-VA-S
    Allowing the science to speak for itself and be available to the 
public.
VIII: Decreasing control of contractors and client agencies over 
        scientific conclusions.
    267-R5-PA-S
    Support from politically appointed administrators on issues 
involving other federal agencies as well as state agencies.
XI: Creating a career ladder for agency scientists.
    293-R5-MD-S
    Inclusion of scientist-only positions within [Ecological Services].
REGION 6 (Rocky Mountain Plains: CO, MT, KS, NE, ND, SD, UT, WY)
I: Removing politics/political influence over scientific decisions
    302-R6-WY-S
    Allowing us to do our jobs without political influence.
    304-R6-NE-S
    Conclusions drawn by Field Office; scientifically sound and based 
on best scientific data available; must be supported by [Regional 
Office] and [Washington Office], not patently dismissed due to 
inconvenience and inconsistency with current political whims.
    305-R6-WY-S
    Eliminate the control that DOI political appointees have over the 
scientific decision making process. Decisions have to be allowed to be 
made based on the best science available--there is far too much 
influence by DOI political appointees, state and local government 
elected officials and commercial interests.
    308-R6-NE-M
    Prevent political appointees from re-writing agency policies/
guidances that weaken our ability to properly administer federal 
environmental laws.
    311-R6-CO-S
    Keeping politics out of the scientific investigations.
    315-R6-UT-M
    Non-interference with political appointees, from our national 
directorate to DOI and CEQ. Our agency does an excellent and scientific 
and protective job to the best of its ability given political 
intervention and public indifference.
    316-R6-UT-S
    Removing politics from the process.
    325-R6-WY-S
    Having the best scientific data speak for itself. Too often, the 
scientific data and the recommendations of field employees are 
dismissed by higher-ups and by those not wanting to make waves or go 
against the wishes of the current administration.
    327-R6-MT-M
    Reducing the direct intervention by Department of the Interior 
political Appointees who often overturn the findings of scientific 
documents and replace them with political determinations.
    332-R6-ND-M
    For appointed positions, appointing agency career professionals, 
rather than politically-connected lawyers, judges and industry 
lobbyists whose principle agenda is the dismantling of legitimate 
agency missions, budgets and workforce.
    333-R6-NE-M
    The current Administration is having a profound negative impact on 
the ability of the USFWS to do its job through political influence and 
budget reductions to Ecological Services Program areas.
II: Increasing funding or resources.
    302-R6-WY-S
    Adequate funding!!! (emphasis in original)
    305-R6-WY-S
    Provide adequate funding and resources.
    310-R6-CO-S
    Provide sufficient funding to deal with the mandates as directed by 
Congress.
    312-R6-WY-S
    Funding at an appropriate level to handled the current workload 
with sound scientific survey methods for gathering information on 
listed and sensitive species.
    324-R6-MT-S
    More staff, so we'd have more time to devote to writing our 
documents.
III: Devoting more attention to professional development, such as 
        access to scientific literature and time to review it.
    311-R6-CO-S
    Providing funds to keep staff up to date on current scientific 
findings and training.
    318-R6-WY-S
    More funding to hire more biologists which would allow biologists 
to undertake more scientific work and devote more time to this part of 
the position.
    319-R6-MT-S
    A lot of our ``best available science'' is quickly becoming 
outdated--funding is needed to help support new research.
IV: Improving quality of management.
    300-R6-SD-S
    Elimination of Regional Offices--they provide minimal value to 
field offices while consuming huge resources for high graded--often 
inexperienced or incapable employees.
    317-R6-KS-S
    Reduce layers of management. We could trim one-fourth to one-third 
of the Washington and Regional office staffs and have absolutely no 
negative effect on the biological work of the agency. Management used 
to exist to serve the filed staff, but this has reversed in the past 5-
10 years. They take the money, we do the work, they make decisions 
regardless of what our data show.
    396-R6-MT-M
    Stronger leadership qualities in Field Supervisors, and other 
supervisors, in holding field bios to use of best science, and correct 
interpretation of scientific research results. Too many field bios are 
poorly trained and get emotionally attached to species and/or 
conservation issues. Those bios use ``err on side of species'' to 
justify ludicrous rationales, requirements and they waste precious 
resource dollars. Damage credibility of USFWS biologists.
    More training for biologists and managers in ES law, regulation and 
POLICY. Many field biologists don't have a clue as to what these cover 
or what or how or where they evolved.
V: Restoring the research arm of FWS (now with USGS).
    316-R6-UT-S
    Giving us back our research arm--BRD.
VI: Restoring the conservation ethic to FWS.
    315-R6-UT-M
    We need to raise public awareness of the purpose of the laws we are 
charged to uphold (NOT just ESA) and garner their support against the 
saboteurs currently in power! Public resources are being sacrificed for 
private gain--irreversible losses. Hard to keep protecting the public's 
interests in public's resources when they don't care or are 
misinformed!! (emphasis in original)
    334-R6-CO-S
    Instill an organizational climate that encourages non-SES employees 
to aggressively engage SES and political appointees in the application 
and interpretation of scientific principles, without fear of either 
short term or long term (career) retribution.
    413-R6-NE-M
    Removing the political oversight at the Departmental level that has 
rendered the U.S. Fish and Wildlife Service to a position that is no 
longer effective in protecting fish and wildlife resources.
VII: Increasing the transparency of scientific decisions, through, for 
        example, peer review.
    303-R6-NE-S
    FOIA, FOIA, FOIA! Keep our agency honest through whatever means 
available.
    334-R6-CO-S
    Demonstrate to the public that the approaches/principles used by 
FWS to assess risk to declining species are similar to those used by 
other disciplines (e.g., bankers and farmers) to assess future risk and 
conserve their trust resources.
XI: Creating a career ladder for agency scientists.
    330-R6-NE-S
    Currently, hiring and promotions are based on one's knowledge in 
law and policy. Little consideration is given to level of education or 
publication history. This is evident as Bachelor of Science graduates 
fill high ranking positions. This failure is occurring at the 
Directorate level where one Regional Director does not have a 
scientific background and it is evident in her lack of support for her 
agency's mission.
XII: Miscellaneous
    303-R6-NE-S
    Get us real whistleblower protection through Congress.
    334-R6-CO-S
    Require annual training of staff level biologists on ``scientific 
principle.'' Now, training is ``optional'' and most ES training courses 
emphasize process.
    336-R6-MT-M
    Hiring younger biologists who have more advanced degree and more 
modern skills.
REGION 7 (Alaska)
I: Removing politics/political influence over scientific decisions
    357-R7-Fairbanks-S
    Keeping the politics out of science. Allowing biologists to do 
their jobs.
    351-R7-Anchorage-S
    Remove DOI political appointees from the review and approval 
process.
    349-R7-Fairbanks-M
    I have been and continue to be proud of the job the USFW does with 
respect to conserving fish and wildlife. The clear problem is with this 
Administration's political appointees. Recently, DOI officials have 
forced changes in Service documents, and worse, they have forced upper-
level mangers to say things that re incorrect and not reflective of the 
agency's view on an issue. This, I believe, goes too far. It's one 
thing for the Department to dismiss our recommendations, it's quite 
another to be forced (under veiled threat of removal) to say something 
that is counter our best professional judgment.
    344-R7-Anchorage-S
    Biologists at lower levels are prevented from releasing information 
that might hurt the pro-development interests.
    340-R7-Fairbanks-S
    Removing the influence of DOI political appointees in producing 
scientific documents.
    339-R7-Juneau-M
    Use science/biology, not politics.
    403-R7-Juneau-M
    Removing oversight of political appointees, such as the DOI Alaska 
Issues appointees, who review our draft letters and change them before 
career employees can sign them.
    402-R7-Anchorage-M
    Allowing us to do our jobs without political interference.
II: Increasing funding or resources.
    361-R7-Anchorage-S
    Staff resources are dwindling in Alaska--everyone is overworked and 
burned out!!!
    346-R7-Juneau-S
    Steady funding streams (more than 1 year budget cycle) to develop 
meaningful trend analysis.
    337-R7-Fairbanks-S
    Resources to use modern tools for managing and retrieving/analyzing 
information--GIS, databases, computer-assisted modeling of populations.
IV: Improving quality of management.
    361-R7-Anchorage-S
    Having a Regional Directorate willing to stand up to the ACOE by 
approving 404 denials recommended by ES staff. We have been told to run 
any potential ``denials'' through the Assistant RO for ``pre-
approval''--which are then not granted for release--we have to rewrite 
the letters.
    352-R7-Anchorage-M
    Having the Director be a career position not a political appointee.
VI: Restoring the conservation ethic to FWS.
    344-R7-Anchorage-S
    There is a culture of fear of retaliation in mid-level management. 
If the manager were to speak out for resources, they fear loss of jobs 
or funding for their programs. (So they go into ``duck&cover'' mode and 
wait for the politics to change.)
VIII: Decreasing control of contractors and client agencies over 
        scientific conclusions.
    357-R7-Fairbanks-S
    Not vetting comment letters (drafts) before the state, private 
industry, other agencies--asking for their input and then changing our 
letter to suit their needs.
XII: Miscellaneous
    343-R7-Anchorage-S
    For endangered species program: Making designation of critical 
habitat optional (not mandatory) thus decreasing multitudinous 
lawsuits.
    337-R7-Fairbanks-S
    Training in decision-making processes that recognize scientific 
uncertainty. Biologists trained to evaluate discrete issues using 
standard statistical approaches are ill-equipped to deal with complex 
issues for which too little information is available.
REGION UNKNOWN
I: Removing politics/political influence over scientific decisions
    383-RU-S
    Leaving politics out of ESA decisions.
    374-RU-S
    Less intervention from political appointees--of course that would 
require a revamp of the system and greater level of integrity 
(willingness to suffer professionally) at mid-level management levels.
    365-RU-S
    Excluding political powerbrokers from intimidating Service 
scientists.
II: Increasing funding or resources.
    393-RU-S
    Receiving support required, including funding.
    386-RU-S
    Adequate funding to assess resources to make good evaluations.
    366-RU-S
    Increasing the number of staff biologist to handle an ever 
increasing workload.
IV: Improving quality of management.
    378-RU-S
    Having a Director willing and able to stand up to Interior would 
help spread back bone to the Regional Directorates. Right now our 
Direction is so worthless none of our management can expect support.
V: Restoring the research arm of FWS (now with USGS).
    363-RU-S
    Long-term research and population monitoring is almost non-existent 
in the non-governmental scientific sphere, and has become rare with 
government scientists. Ecological Services does not have adequate staff 
to do this work and funding and personnel has dropped severely--
especially after Region 8 became USGS-BRD. Bring back the scientific 
staff and dedicate them to long-term management related research.
VI: Restoring the conservation ethic to FWS.
    387-RU-S
    Focusing in a more comprehensive manner on the needs of all rare 
species and their stressors.
    386-RU-S
    Movement away from GPRA based acres as the only method of 
evaluation. We are neglecting the animals.
VII: Increasing the transparency of scientific decisions, through, for 
        example, peer review.
    367-RU-S
    Placing much more scrutiny on the decision-making process between 
the draft scientific document and the final decision. The work is great 
until it hits the supervisory chain, then things are dropped, changed, 
altered (usually without written record) and then finalized with 
dismissive responses to concerns.
VIII: Decreasing control of contractors and client agencies over 
        scientific conclusions.
    386-RU-S
    Careful scrutiny of programs that seek outside funding to perform 
work that should be done by consulting firms. Due to underfunding and 
poor management of existing funds, we are becoming a consulting firm.
                                 ______
                                 
    The Chairman. Thank you, ladies and gentlemen.
    Let me ask my first question to Deputy Secretary Scarlett 
in regard to the IG report. In his testimony, Mr. Ruch just 
now, the Public Employees for Environmental Responsibility, 
points out that the Interior Department has ``yet to condemn 
the conduct of the recently resigned Julie MacDonald.''
    Mr. Ruch also says that the Interior Department should 
correct Ms. MacDonald's scientific misrepresentations that have 
been identified by the Inspector General.
    My question is, has the Department submitted a formal 
response to the Inspector General?
    Ms. Scarlett. There has been a verbal response to the IG, 
and the IG provides us with a form. I believe that form was 
being submitted to him yesterday or today. But I could go 
beyond that. I will say that----
    The Chairman. Yes. My question is, do you expect to clear 
the air on this matter?
    Ms. Scarlett. Ms. MacDonald has now resigned. We went 
through a lengthy process. I personally received the IG report, 
gave it to the Assistant Secretary for Fish, Wildlife and 
Parks, who reviewed it thoroughly, did fact checking and follow 
up, and subsequently provided to a board that Secretary 
Kempthorne has created, an accountability board, to further 
review those findings. Upon the completion of that effort, Ms. 
MacDonald did resign.
    We view the details of Ms. MacDonald's matter as a 
personnel matter. However, I will say from a matter of policy 
that Secretary Kempthorne is strongly, strongly supportive of 
accountability. He has gone to the Government Ethics Office and 
asked for a list of best practices. We are methodically going 
through the Department to implement all of those at 100 percent 
level. So from a policy standpoint, yes, we expect an 
accountable, professional staff that at all times is respectful 
and utilizes science with integrity.
    The Chairman. So do you expect to take corrective action to 
repair the damage created by Ms. MacDonald to the Interior 
Department itself?
    Ms. Scarlett. This is the first time I had heard that 
particular suggestion with respect to reviewing the science. 
Let me say again that several steps have already been taken to 
further ensure that the Department is, one, that is accountable 
and operates with integrity.
    By the way, I want to reenforce that I believe that the 
Department is generally with both career and non-career 
employees one of the highest professional standards, but we 
have created an accountability board to further ensure that all 
actions--that people are held accountable for actions. We have, 
as I said, created an ethics process whereby we are putting in 
place 80 ethics best practices. Many of them we already had 
underway, but we are making sure that we have all 80 of those 
best practices.
    With respect to the science itself, working with the Fish 
and Wildlife Service we continue to strive to ensure that the 
best science is undertaken to inform the decisions that we 
take. Many of those decisions are ongoing, and we will continue 
to review them, review the science, and ensure that that 
science is brought to bear in those decisions.
    The Chairman. Let me ask the rest of the panel to respond 
to the Deputy Secretary's response just now, beginning with 
you, Mr. Ruch.
    Mr. Ruch. This is the first we had heard that there was an 
accountability board identifying 80 best practices, and we are 
curious as to whether or not they are sort of bigger than a 
bread box.
    We noted in our testimony that the Department of the 
Interior had already adopted a Code of Scientific Ethics but 
never bothered to incorporate it into its manuals. We are not 
sure who it applies to, but it appeared it doesn't apply to 
political appointees.
    We are not at all clear, based upon those statements, that 
the Department of the Interior is distancing itself from the 
conduct of Ms. MacDonald or is prepared to offer any assurances 
to its professional staff that such interference will not be 
tolerated in the future.
    The Chairman. Dr. Grifo.
    Ms. Grifo. Thank you. Given the context of the political 
interference that we are documenting across agencies, across 
departments, it is hard for us to take this seriously until we 
see what this really looks like. If there is this 
accountability board, could we have them on the web so that we 
can see who they are? Could we have perhaps, you know, 
nonprofits and other groups represented on this accountability 
board?
    These 80 best practices, you know, could we have comment 
and review of those from beyond the agency or the Department?
    I mean, I think these are important first steps, but the 
proof will be in the pudding. I mean, when we see the details, 
we will be able to make a final judgment.
    The Chairman. Jamie.
    Ms. Clark. Well, at a top level, it is interesting that the 
Department is forming an accountability board, and that they, 
you know, are very concerned about the manipulation of science, 
and concerned about Julie MacDonald. But what I still find very 
troubling is that if they don't count suppression or 
manipulation of science, and frankly, why did they leave Julie 
MacDonald in place for so long. Her legacy, if you will, goes 
back over many species that you heard both Mr. Ruch and Dr. 
Grifo lay out.
    And so whether it is the Code of Science Ethics, which I 
have read, and I agree with, but there is a glaring omission, 
as I understand it in talking to career folks, in that 
political appointees were specifically excluded from that. So 
if you create this wall for career employees to be have one way 
and political appointees to behave another, then it is ripe for 
problems that we are seeing now.
    The Chairman. Thank you. The Chair does have further 
questions, but noting my time has expired and noting that there 
are 14 Democrats here and four Republicans, I do want to yield 
at this time to the Ranking Minority Member for his questions.
    Mr. Sali. Thank you, Mr. Chairman.
    Ms. Clark, you would agree with me that the goal of the 
Endangered Species Act is to have zero species become extinct?
    Ms. Clark. I would agree with you that the goal of the 
Endangered Species Act is to conserve threatened or endangered 
species and protect the habitat they depend on, and as an 
ultimate goal, you are right. As a country, we should not allow 
and condone the extinction of species.
    Mr. Sali. Ms. Grifo, you would agree with that as well?
    Ms. Grifo. Yes, I would.
    Mr. Sali. OK. In terms of science, leaving apart the 
requirements of the Endangered Species Act, what is the 
acceptable rate of extinction of species, Ms. Clark?
    Ms. Clark. I think that that is a bit of red herring. I 
don't think that there is an acceptable ``level'' of risk for 
species. I think that we deal with these issues one at a time, 
and I don't think any scientist or policy person would agree 
that there is a ``right'' number for losing creatures on this 
earth.
    Mr. Sali. So you believe that the scientific goal should be 
zero, the same as it is under the legal standard of the 
Endangered Species Act. Is that correct?
    Ms. Clark. Well, again, I didn't agree with you straight 
out. The way that you represented the goal of the Endangered 
Species Act is ``zero'' extinction. I represented it 
differently in that the goal, the purpose of the Endangered 
Species Act is to provide for the conservation of species on 
the brink and to protect their habitat. That is different than 
the way that you characterized it.
    Mr. Sali. Well, Ms. Grifo, I guess I would ask you. What is 
your view in terms of science? Is there an acceptable rate of 
extinction of species?
    Ms. Grifo. Well, I would say that what I am sure we can all 
agree on is the fact that we are at a one-year anniversary of 
the last time any species was listed. That is certainly not the 
way to get at the----
    Mr. Sali. OK, but that is not my question. My question is, 
in terms of science, is there a rate at which we would say, 
yes, species ought to become extinct at this rate throughout 
time?
    Ms. Grifo. No.
    Mr. Sali. There is no----
    Ms. Grifo. It is a much more complicated question than 
that. The question of extinction, yes, there are background 
rates of extinction, but those are on geological time scales. 
What we are seeing right now in this country is not on that 
time scale. It is not a part of any sort of natural extinction 
process.
    Mr. Sali. OK. How can we determine what is natural and what 
is unnatural?
    Ms. Grifo. There are gray areas in all of these issues. 
There are areas of uncertainty, but I think it is very clear 
that what we are seeing in this country is not about that. It 
is not a rate that is happening. Storms and other things that 
are non-human oriented are not causing these extinctions. It is 
very clear to us that invasive species that--habitat 
degradation that, you know, we can go through the litany of 
causes are what are causing these extinctions, and it is fairly 
clear to make the link from those threats back to us, and that 
is why we have the responsibility to work with the Endangered 
Species Act to prevent that.
    Mr. Sali. Well, as we look at the fossil records, it is 
fairly clear that there have been a huge number of species that 
have become extinct, and so I am trying to reconcile how do we 
look at that series that happened before there was an ESA, 
before there was even a Federal government in this country, 
before there was even a country here, how do we reconcile that 
huge number of species that have become extinct with the 
requirements of the Endangered Species Act, which is 
essentially, as I look at it, a goal of zero, Ms. Grifo?
    Ms. Grifo. I would say that I would welcome the opportunity 
to come with a group of my colleagues and have this very 
interesting intellectual conversation with you, but the topic 
of today's hearing is really about the political interference 
in science, and the fact that the Act as it stands is not 
functioning.
    Mr. Sali. Well, if I were to suggest to you that I think 
probably everyone around this series of seats up here agrees 
that there is politics involved in this, and that it just 
depends on which political side you happen to be on whether you 
think it is good or bad in terms of any particular result. 
Would you agree with that comment?
    Ms. Grifo. No. What I would agree with is that the 
Endangered Species Act has parts of it where, for example, 
listing. We are looking at best available science and 
commercial data. That is the basis of the Act, and the basis of 
those listing decisions. There are others where after we have--
--
    Mr. Sali. So are you suggesting that there----
    Ms. Grifo. Could I finish?
    Mr. Sali.--is no politics in this?
    Ms. Grifo. I am about to get to that part.
    Mr. Sali. OK.
    Ms. Grifo. There are other parts of the Act, such as, you 
know, critical habitat designation, where we take the best 
available science, and then pull that together with economic 
and other concerns, and that is the place where we have an open 
debate in the light of day where everyone can see it and 
participate about how we weigh those things.
    I am not here to tell you that science is the basis of 
every policy decision. That is not what this is about. What 
this is about is the fact that outside of the realm of public 
discourse, outside of our democracy----
    Mr. Sali. So you would agree that there is politics in 
these decisions no matter what?
    Ms. Grifo. I agree that there is a point in these decisions 
where we do take into account economic and other 
considerations, and we do that with the best available science, 
not a manipulated or changed science.
    The Chairman. And by other considerations, you would 
include politics?
    Ms. Grifo. I would include economic considerations.
    Mr. Sali. Well, you said economic and other considerations. 
By other considerations, you would agree that that includes 
politics, correct?
    Ms. Grifo. I would agree that economics often gets 
political.
    Mr. Sali. Thank you, Mr. Chairman.
    The Chairman. Mr. DeFazio was here first. OK, Dale, do you 
have any questions? Let me recognize you. I am sorry. I am 
sorry.
    Mr. Kildee. I will be very brief. I was a little late. But 
you know, I think there is a difference between reviewing and 
weighing science, and to force changes in a scientific report, 
and I think that is what it is really all about, that we find 
evidence that there has been changes forced into scientific 
report, which is really dangerous.
    I served on the Budget Committee for six years, and we 
expected our budget experts to add up for us and say that 2 
billion plus 2 billion was 4 billion. We didn't go back and 
say, no, make it 2 billion plus 2 billion is 3 billion because 
that fits our needs more, and I think it is extremely important 
that we can review and weigh the science with the other 
factors, but just to force changes in the sciences is 
dishonest, I think, and certainly dangerous, and that is all I 
have to say, Mr. Chairman.
    The Chairman. Thank you, Dale. The gentleman from Maryland, 
Mr. Gilchrest.
    Mr. Gilchrest. Thank you, Mr. Chairman.
    I think I would like to make a comment first before I have 
four just short questions. In the Endangered Species Act, the 
big picture is simply that human activity very often is not 
compatible with nature's design. Even though the science is 
some understanding of what parking lots do to the ecology, what 
sprawl does to the ecology, what a whole range of air 
pollutants do to the ecology, and it is all integrated 
together. So unless we tease out what we are doing to cause 
species not to be sustainable, the ultimate end to that is that 
human beings are not sustainable because we depend on the 
resources that we are trying to protect. So it is a closed 
loop.
    And to manipulate science by any means is doing a huge 
disservice to the public. To take politics into consideration 
while you are understanding the basics of that science is 
always acceptable, but for politics to manipulate and change 
that science so that 2 billion plus 2 billion equals 3 billion 
is not acceptable. So I hope the Ranking Member and Ms.--I 
can't see your name.
    Ms. Grifo. Grifo.
    Mr. Gilchrest. Grifo. Can get together really. I sincerely 
think that some of us on this side of the aisle should sit down 
and go through the process of understanding the science behind 
the ecology. That would be very beneficial.
    The questions I have is just very quickly. Mr.--is it Ruch?
    Mr. Ruch. Ruch.
    Mr. Gilchrest. Ruch, Mr. Ruch. The situation with Rex 
Wahl----
    Mr. Ruch. Yes.
    Mr. Gilchrest.--and the Bureau of Reclamation?
    Mr. Ruch. Yes.
    Mr. Gilchrest. A Reclamation project. What is the status of 
that right now?
    Mr. Ruch. He is still awaiting a decision. He has been at 
home on paid administrative leave for nine months, going on 10.
    Mr. Gilchrest. And he is on administrative leave because?
    Mr. Ruch. He was originally charged with subversive 
activities in e-mailing information to the Army Corps and other 
groups. That was withdrawn. He is now charged with causing 
embarrassment, which we didn't know was an offense, and we are 
awaiting a decision by the agency.
    Mr. Gilchrest. This is the Department of the Interior?
    Mr. Ruch. This is the Department of the Interior, Bureau of 
Reclamation.
    Mr. Gilchrest. The NOAA gag order, can you make a further 
comment on that, on scientists, that they can't make statements 
unless--we have heard about this one--they can't make 
statements unless those statements to the Rotary Club or to 
another agency is vetted through the----
    Mr. Ruch. Correct.
    Mr. Gilchrest.--political appointee?
    Mr. Ruch. This policy is about to become final next week 
according to the schedule laid out by the Department of 
Commerce, and what it says is--there is two parts. One has to 
do with on-duty statements, and those are subject to approval, 
but I think the more controversial one is all off-duty 
statements that are--deemed of official interest is the term 
they use--are also subject to review and approval.
    So for a scientist attending a conference, if he is asked a 
question and is unsure what the departmental policy is, he is 
not allowed to depart from the policy, so as we understand the 
policy, he is supposed to say ``No comment.''
    Mr. Gilchrest. Interesting.
    Mr. Ruch. And the point of all this was that the scientific 
process involves collaboration, interaction with colleagues, 
but the way these rules are increasingly being interpreted, 
Federal scientists are, in essence, being kept more and more in 
kind of an intellectual monastery where they are not allowed to 
talk or interact or share information.
    Mr. Gilchrest. Ms. Scarlett, you may not have anything to 
do with that, but if you do, can you give us some kind of 
comment. If you don't, fairly you don't.
    Ms. Scarlett. I am unaware of NOAA's policies.
    Mr. Gilchrest. You don't have anything like that in 
Interior?
    Ms. Scarlett. I am not aware that we have anything like 
that.
    Mr. Gilchrest. So in the Interior Department, you wouldn't 
have anything to limit an employee from making comments to the 
Rotary Club or to the Corps of Engineers about an issue?
    Ms. Scarlett. I am not aware that we have any policy.
    Mr. Gilchrest. Are you aware of Rex Wahl's situation?
    Ms. Scarlett. I am not. I heard about it for the first time 
in the testimony this morning.
    Mr. Gilchrest. Can you give us some idea of what this draft 
document is all about that was on Salon Magazine, and what the 
status of that is now?
    Ms. Scarlett. Yes, Congressman. Going back a year and a 
half or two years, understanding that there have been decades 
now of implementation of the ESA, and increasingly, including 
in the last administration, issues raised about limitations on 
its effectiveness, partly through lack of clear terminology 
that has promoted some litigation, the disincentives for 
citizen stewardship created in some of the ways that the Act is 
implemented, a process began within the Department to put a 
number of concepts on the table for possible regulatory 
changes.
    That process was not completed. It was, if you will, a 
putting of everything but the kitchen sink on the table from a 
variety of people. When Secretary Kempthorne arrived and was 
confirmed at the end of May of last year, he asked that that 
effort completely stop; that we put essentially that effort on 
the back shelf, and that we hold 25 cooperative conservation 
listening sessions around the country on a variety of issues, 
not simply ESA, to hear what it is people had to say about 
conservation.
    In that process, some 80 percent of written comments that 
came in actually mentioned ESA, and in particular, said that 
some of the provisions of the way we implement ESA stood in the 
way of cooperative conservation and citizen stewardship. There 
were many comments on the growing abilities of states, their 
own biological expertise, particularly for species in those 
states, and that they could play a better role as envisioned in 
Section 6 of the Act when it was originally passed.
    So we went out after those listening sessions and reviewed 
those comments. Those are posted, by the way, on a website, 
Cooperativeconservation.gov. It is very transparent.
    Secretary Kempthorne then asked Dale Hall, who is here with 
me today, and his team of Endangered Species Act experts, that 
is, his associate regional directors in charge of implementing 
ESA in each of the regions, as well as his headquarters' 
experts, including Bryan Arroya, who heads up the ESA program 
here, and he is also with me today, to sit down with NMFS, and 
look at those comments from the cooperative conservation 
listening session and themselves write what they thought would 
be the best way to move forward in improving the way we 
implement the act.
    We have a document that is underway. It is not complete. It 
continues to be revised, reviewed, and refined. It has been 
wholly and 100 percent written by those experts without the 
hand of the political appointees of the Department, excepting 
Dale Hall himself, of course, as head of the Fish and Wildlife 
Service has been engaged.
    That is what that process is, and it differs significantly 
this product from that which ended up on Salon.com.
    Mr. Gilchrest. Thank you very much. Thank you, Mr. 
Chairman.
    The Chairman. The gentleman for Oregon, Mr. DeFazio.
    Mr. DeFazio. Thank you, Mr. Chairman.
    Ms. Scarlett, is there ongoing work within the Department 
to systematically review decisions that Ms. MacDonald may have 
improperly influenced? Yes or no.
    Ms. Scarlett. There are a number of decisions that were 
made over time, some of which are completed decisions, if you 
will, some of which are ongoing. What we are doing and in fact 
really with the leadership of Dale Hall, dating back a year or 
so ago, we created a process, a process for reviewing these 
status of each and every ESA decision, whether it is critical 
habitat, recovery or otherwise, making sure that we are staying 
apace with legal requirements, but also ensuring that Dale had 
the full latitude to apply the science expertise of those 
within his department.
    Mr. DeFazio. But that is avoiding the question. She was 
very influential on a number of decisions, particularly as 
pertained to critical habitat on the Sage Grouse, the Bull 
Trout, and perhaps the Spotted Owl.
    Are you reviewing what influence she might have had? For 
instance, in the IG report on page 8, it says, ``Agents note in 
a number of e-mails and comments on the Bull Trout CHD''--
critical habitat decision--``MacDonald forced, forced a 
reduction in critical habitat in the Klamath River from 296 to 
42 miles.''
    Ms. Scarlett. I am not aware of a current action underway 
with respect to Bull Trout. With respect to the Northern 
Spotted Owl, which you mentioned, that
    The process is ongoing, and Dale Hall's folks and the 
recovery team, which includes numerous scientists, are actively 
involved in addressing that.
    Mr. DeFazio. OK, let us turn to the Spotted Owl. We had a 
plan submitted by scientists in the region September 2006. That 
plan was rejected by something called the Washington Oversight 
Team. Was Ms. MacDonald a member of that team?
    Ms. Scarlett. Ms. MacDonald might have been a part of that 
team.
    Mr. DeFazio. Yes, she might have been. Who was part of that 
team? Were you a part of the team?
    Ms. Scarlett. I chair that team or I should say----
    Mr. DeFazio. OK. Now, could you tell me your credentials in 
the area of biology and science, your professional credentials? 
Do you have any?
    Ms. Scarlett. I am not a scientist, sir.
    Mr. DeFazio. You are a political scientist, is that 
correct?
    Ms. Scarlett. Recover planning, as was noted earlier, is--
--
    Mr. DeFazio. OK, that is fine. Ma'am, just answer the 
questions, please.
    So you are a member of the team. You are not sure whether 
Ms. MacDonald--you were the Chair but you don't know whether 
Ms. MacDonald was a member or not. Now, that is kind of odd for 
a Chair, isn't it?
    Ms. Scarlett. No, because----
    Mr. DeFazio. If you were the Chair, you must have known who 
came to your meetings.
    Ms. Scarlett. Well, it was precisely because it was in 
flux. This was a team that included Dale Hall. It included his 
recovery team people from the Northwest. It included people 
from the Bureau of Land Management, from the Forest Service and 
others, and this is because this recovery planning effort 
actually involves several different documents--the recovery 
plan.
    Mr. DeFazio. Right.
    Ms. Scarlett. Critical habitat.
    Mr. DeFazio. True.
    Ms. Scarlett. As well as BLM and Forest Service Resource 
Management Plan.
    Mr. DeFazio. I am familiar with the process. Thank you.
    Ms. Scarlett. Therefore, they all took part.
    Mr. DeFazio. On the list I have says that she was a member 
of the oversight team, so she may have been.
    Ms. Scarlett. The reason that I used that terminology is 
that the membership has been in flux and it has been some 
months since she has not participated.
    Mr. DeFazio. OK. So we don't know whether or not she was 
really a member of the team or whether or not she may have had 
undue influence, but we know there was a particular focus on 
critical habitat.
    October 17th, with the rejecting by this Washington 
Oversight Team, which she may or may not have been a number of, 
that you are the Chair of, so certainly familiar with this, you 
rejected the plan proposed by the scientists in the Northwest, 
and you ask for a rewrite, and you ask for an additional 
option, an option two, is that correct?
    Ms. Scarlett. Let me clarify, and I am going to read to 
you--I am going to read to you a letter----
    Mr. DeFazio. We have documents that----
    Ms. Scarlett. Yes.
    Mr. DeFazio.--substantiate that, ma'am.
    Ms. Scarlett. Let me read to you a letter that I have 
received because it pertains to testimony today. ``Dear 
Dominick, it is with both surprise and displeasure that I have 
become aware of a statement in your testimony to the----
    Mr. DeFazio. Ma'am, I am not--you may----
    Ms. Scarlett. ``I categorically deny making such a 
statement.''
    Mr. DeFazio. Excuse me. I am asking about factual things. I 
am not asking you about the opinion or the testimony of a 
future panelist here.
    Ms. Scarlett. All right.
    Mr. DeFazio. So we don't need to reject his testimony right 
now. I am asking about factually documented e-mails, so it was 
rejected on October 17th, is that correct?
    Ms. Scarlett. No. No. Factually----
    Mr. DeFazio. It wasn't?
    Ms. Scarlett. No.
    Mr. DeFazio. And you didn't ask for a rewrite?
    Ms. Scarlett. Factually----
    Mr. DeFazio. You didn't ask for a rewrite and the addition 
of an option two?
    Ms. Scarlett. Sir, would you like me to answer?
    Mr. DeFazio. Yes, I am asking, yes or no. It wasn't 
rejected?
    Ms. Scarlett. The document----
    Mr. DeFazio. You just sent it back.
    Ms. Scarlett. The document was not rejected. It was a 
draft, and as a draft, we always expect further improvements. 
What we asked were three things:
    Number one, I commended the group for having written a very 
outstanding document but suggested that its organization would 
merit some reorganization for better readability.
    Number two, the document identified in it the Bard Owl as a 
significant threat to the Northern Spotted Owl, and yet when 
you read the recovery planning proposals there was nothing in 
there to address the Bard Owl. We asked whether there was any 
scientific or other information that could help us try to 
address the threat of the Bard Owl in the recovery plan.
    Number three, we asked whether, given the large landscape 
scale, using the exact same science and the exact same recovery 
goals, there might be a way to utilize an adaptive management 
approach and ask that they retain the existing management 
approach they were proposing, but could they consider and 
propose an adaptive management approach alongside that. So 
those were the three requests----
    Mr. DeFazio. OK. So that would be where the option two came 
from. It said, ``The less defined second option was requested 
by Interior Department political appointees and other high-
level officials in Washington, D.C.'' said Dave Wesley. Not 
Dominick DellaSala. And he was the leader of the agency's 
Spotted Owl recovery team.
    Ms. Scarlett. Again, if I could just----
    Mr. DeFazio. Right.
    Ms. Scarlett. If I could simply repeat. What we had--you 
know, a recovery plan is a management plan, and what we were 
trying to do is to get the best possible management plan. The 
document that we received was an outstanding document. I 
commended the Service for it. But we were asking whether, 
because of the large landscape scale, it might be possible to 
create performance measures and an adaptive management approach 
as an option for the public to consider.
    The idea is to have a recovery plan that put out two 
options. Let us consider them, one, an option that was adaptive 
management, the other a more traditional one with lines on a 
map that said these are the conservation areas. That is what we 
did.
    The science remains absolutely identical in both of those 
options.
    Mr. DeFazio. So then it isn't true that you focused on just 
option two. You didn't require them to just submit option two 
so that----
    Ms. Scarlett. Absolutely not. We wanted multiple options.
    Mr. DeFazio. OK. So at no point you restricted them to 
option two?
    Ms. Scarlett. No.
    Mr. DeFazio. OK. And you are basing that on--I am running 
out of time here? OK, sorry.
    Yes, Don. Well, we are trying to get in a few facts here, 
and we are going to end up--Mr. Former Chairman, if you could, 
please, it is my time. I am not yielding, and I will end now, 
but let me just say we are going to be back in the courts, and 
we are going to have another mess because of the perversion 
that has gone on here, and I will come back for a second round, 
and continue the line of questioning. Thank you.
    The Chairman. The Chair appreciates the gentleman from 
Oregon, the Ranking Minority Member has just arrived. The Chair 
will recognize him.
    Mr. Young. I have already been recognized, but thank you, 
Mr. Chairman.
    [Laughter.]
    Mr. Miller. In a dark night with no flashlight.
    [Laughter.]
    Mr. Young. That is the greatest compliment I have ever had, 
Mr. Miller.
    [Laughter.]
    Mr. Young. Madam Secretary, were there any regulatory 
changes in the Endangered Species Act during the Clinton 
Administration?
    Ms. Scarlett. I believe in the Clinton Administration there 
were several regulatory--ESA regulatory proposals made. I do 
not believe that they were finally implemented, but perhaps 
Jamie Clark would be best positioned to answer that.
    Mr. Young. Ms. Clark?
    Ms. Clark. During the Clinton Administration, there were 
administrative updates, if you will, to the Endangered Species 
Act. They were done through open public notice and comments, 
things like peer review, enhancing the role of states.
    Mr. Young. Not much difference to what has occurred here? 
Much of the same thing.
    Ms. Clark. Well----
    Mr. Young. Madam Secretary, what was the goal of those 
policy changes? Do you have any idea what the goal was? 
Anybody?
    Ms. Scarlett. You are asking me about the----
    Mr. Young. Yes.
    Ms. Scarlett.--Clinton Administration goals?
    Mr. Young. Yes.
    Ms. Scarlett. When I look at those goals, they were very 
much the same as the goals that we have: enhancing 
partnerships, the role of states, enhancing and clarifying the 
requirements for science and documents, and improving the 
opportunity for conservation partnerships, et cetera, and a 
focus on recovery.
    Mr. Young. Do you recall whether a Republican Congress ever 
enacted legislation or a rider to an appropriations bill that 
would prevent or prohibit these changes from occurring?
    Ms. Scarlett. I am not aware of any such rider being 
enacted.
    Mr. Young. It has not, in fact.
    What is the goal of the current potential regulatory 
changes of the Endangered Species Act? What is your goal?
    Ms. Scarlett. Our fundamental and central goal is to 
enhance recovery and to do so by enhancing the opportunity for 
cooperative conservation partnership, partnerships with states 
and so on.
    Mr. Young. Well, there is not much difference from that 
than what Secretary Babbitt tried the same thing, I believe, 
under the Clinton Administration, same proposal.
    Ms. Scarlett. These kinds of concepts have been in play in 
academia among the western Governors, as well as among 
administrations, both Democratic and Republican. That is the 
focus on recovery, better opportunity for states, and better 
opportunity for citizens and landowners to participate in 
conservation.
    Mr. Young. And if I can, Mr. Chairman, my concern here is, 
and of course, I am probably the only person on this Committee 
that has ever voted for the Act itself, and it is probably the 
worst vote I made because we were misled at that time in what 
the Act was supposed to do, and the Act has been implemented 
and used by groups to try not to preserve species, but to 
impede any type of development or growth, and that is the 
unfortunate thing.
    We have two cases in Alaska right now, which very, very 
concerns me in this Act. One is the Polar Bear. Oh, boy, we are 
going to save the Polar Bear. There is no shortage of Polar 
Bears, no science was ever studied. Yet it is possibly being 
put on the Endangered Species Act which will affect any type of 
fossil fuel development in the United States.
    We have another--without any science again--another 
beginning of the Beluga Whale. No science, no study, but the 
species is declining in Cook Inlet, which also is my largest 
port, and if they are put on the Endangered Species Act without 
any type of cooperation with the state, it shuts down the port 
and the main entry for any goods coming in the State of Alaska.
    So we have to, as this Committee, Mr. Chairman, and I think 
the members of the Committee, instead of just pointing the 
finger at the administration, come up with some alternatives. 
We must save the species if that is what we are seeking to do, 
but let us not forget that we have the human factor involved 
also, and it is ironic to me, and I will speak to my good 
Chairman, that most of this Act has been really forcibly put 
upon the western states, and I don't consider California too 
western anymore. It has been infested by those liberal elements 
that I am not sure what they are, but Oregon is getting there, 
and Washington is right behind it, and I am afraid Alaska may 
be next.
    But it seems to me that this Act has been used----
    The Chairman. What about West Virginia?
    Mr. Young.--over and over again.
    The Chairman. What about West Virginia?
    Mr. Young. Well, no, no, that is what I am saying. It has 
not--when was the last time West Virginia----
    Mr. DeFazio. Where are we getting done?
    Mr. Young. Mr. Chairman.
    Mr. DeFazio. Where is Oregon getting?
    Mr. Young. Close to California, not quite yet, you are 
getting there.
    Mr. Chairman, I have to ask you, and what I am leading up 
to, it seems to me like a lot of this Act is not used in the 
eastern states to a great degree.
    The Flying Squirrel?
    The Chairman. We have someone on the next panel.
    Mr. Young. The Flying Squirrel? 1985, the Flying Squirrel, 
which is 1985, 1995, that is 22 years ago, and I am just saying 
if we want to protect the species, then I think we ought to 
rewrite this Act because what I think the administration is 
trying to do is discouraging those landholders private entirety 
of protecting the species.
    Now, I want to go through the story, and I will be quiet. 
My dad died and he left a ranch to my brothers and myself, but 
he left 21 acres in the middle of that ranch that you cannot 
touch. It is probably the only place, Mr. Miller, in California 
you have yet you can see everything as it was many, many, many 
years ago.
    Now, every place around that ranch they farmed it right up 
to the quick. We call it the quick. No more fence rules, no 
more nothing. And low and behold, the Golden Garter Snake was 
going to be put on the endangered species list, and low and 
behold, guess where most of those garter snakes were located--
in those 21 acres.
    Now here comes Fish and Wildlife and says Endangered 
Species Act, you have to have a buffer zone around the 21 
acres, which would have taken in the whole ranch. Instead of 
patting him on the back and giving him ``Good job, Russ, you 
did great, you saved the Golden Garter Snake for us, here is 
something you can have, a plaque to put up on your wall, 
continue that good work,'' they want to put a buffer zone, or 
did, they are not going to do it now, a buffer zone around 
there, and what you call ``Shoot, shut up, and shovel,'' and 
this is what this Act is doing.
    So we better listen to the administration, and come up with 
some new ideas, and how we can make this thing work better. If 
not, we have failed. Never was the intent of that. I am saying 
I am the only one on this Committee ever voted for the dumb 
act, and 1 percent recovery rate of the whole thing--1 percent. 
Yet the imposition upon every landholder private has been 
untold and taken away from those peoples, and taken without 
compensation.
    Thank you, Mr. Chairman.
    The Chairman. Since the gentleman from California has been 
honored by the vicious attack by the gentleman from Alaska, I 
will recognize him to defend himself.
    [Laughter.]
    Mr. Miller. Well, I would rather get back to the subject of 
the hearing. I have been on this Committee for 33 years, so Mr. 
Young and I have been back and forth at one another for a long 
time.
    Ms. Scarlett, according to court documents that I have 
looked at show that Deputy Assistant Secretary Julie MacDonald 
allowed the California Farm Bureau's lobbyist to make copies of 
internal Interior document deliberations in an attempt to 
really damage or undermine the review process of the threatened 
Delta Smelt. That was in 2004. Are you aware of that?
    Ms. Scarlett. I am aware of that. I have read the same 
things you have read.
    Mr. Miller. What actions were taken in response to that?
    Ms. Scarlett. First, let me say Ms. MacDonald has resigned 
and is no longer with the Department.
    Mr. Miller. Everybody in this government is resigning. I 
want to know what happened in the Department.
    Ms. Scarlett. OK. Well, let me go through sequentially.
    Second, working with Dale Hall about 12-15 months ago we 
worked out a process so that Dale would work directly with his 
Fish and Wildlife Service people on the science and information 
and generation of packages, and that the Washington office, 
including----
    Mr. Miller. That was in response to what?
    Ms. Scarlett. That the Washington office and Ms. MacDonald 
would appropriately apply their role of overseeing and looking 
at quality control, but that the documents themselves would be 
developed in the field by the Fish and Wildlife Service people, 
and that was out of concern that we wanted a process in which 
that----
    Mr. Miller. But there were other scientific documents that 
Ms. MacDonald edited and reviewed and changed, is that not 
correct?
    Ms. Scarlett. Ms. MacDonald, fulfilling her role as a 
deputy assistant secretary----
    Mr. Miller. Not as a scientist.
    Ms. Scarlett. That is correct, but as her role of 
fulfilling the role of overseeing and reviewing documents 
certainly did edit documents appropriately. Remember the 
documents come in and they are not simply about science. 
Oftentimes there is quality control issues, issues that pertain 
to whether the document actually has substantiated claims made, 
or whether it is coherent and consistently written.
    Mr. Miller. Have you reviewed her actions on the Smelt 
decision, on the vernal pools and Tiger Salamander and the 
Split Tail?
    Ms. Scarlett. I have not reviewed her decisions on those 
specific issues.
    Mr. Miller. Well, let me tell you something. You know, this 
is a very, very serious matter because, you know, as the 
courts--the state courts made a determination that the 
California may have to shut down its pumps because it is out of 
compliance to pump water from the north to the south, which is 
obviously a very important event in the California economic and 
social life.
    They are now telling us that they believe that they have 
equivalency permits based upon the work done at the Federal 
agency. We now learn that the Federal agency work may very well 
have been undermined and changed, and in a scientific fashion, 
not just editing what she knew something about, but editing the 
scientific findings and determinations and suggestions of 
scientists.
    So now our state people are suggesting--I don't think I 
agree with them, but they are suggesting that somehow they have 
an equivalency permit based upon a series of processes and 
findings here that may in fact be fraudulent.
    Ms. Scarlett. Sir, I am not familiar with the equivalency 
permit as to what----
    Mr. Miller. OK. Let us just talk about what you are 
responsible for, and each one of these determinations, which is 
absolutely critical to operation of the California water 
programs, the Federal and state water programs, we now have 
this woman wandering around here changing the content and the 
findings of these determinations.
    Ms. Scarlett. What I can say is that on the Delta Smelt, 
Steve Thompson, who heads up the California and Oregon office 
out there, or California and Nevada office, is the individual 
in charge with overseeing the process and decisionmaking on 
Delta Smelt, and all my interaction on that issue has been with 
him and with him only.
    Mr. Miller. So your testimony would be that you believe 
that the exiting protections for the Delta Smelt are sufficient 
for recovery?
    Ms. Scarlett. I can't speak to that. I would have to defer 
to Steve Thompson and the Fish and Wildlife Service and their 
judgment on that as scientists.
    Mr. Miller. Well, my concern is that Mr. Thompson's and 
others' determinations may be built upon these actions by Julie 
MacDonald.
    Ms. Scarlett. Certainly the Fish and Wildlife Service, I 
believe, on an ongoing basis continues to examine the science 
and the foundations of the decisions that it is rendering, and 
that is the case with the Delta Smelt.
    Mr. Miller. Well, it is interesting that, you know, a 
number of your career biologists and other scientists have made 
it clear that this doesn't represent their work. In fact, she 
took their names off some of the reports, so we don't know what 
it represents now.
    Ms. Scarlett. Congressman, as we go forward with all of 
these endangered species issues, we are striving to uphold the 
greatest integrity in our science and----
    Mr. Miller. That is my concern. That is my exact concern.
    Ms. Scarlett.--we will continue to do that
    Mr. Miller. That we know how difficult and we know the 
splits in Congress and in society and everywhere else around 
the Endangered Species Act, and the theory is that at the end 
of the day we rely on good science, and sometimes you like the 
decisions and sometimes you don't, but when you have a person 
like this wandering around with reported conflict of interests 
in terms of her own land ownership she and her husband has in 
the Sacramento Valley, you start to get very concerned about 
what happens here.
    Do you understand the level of concern? We are talking 
about the economy of the State of California, and decisions 
that have been made one way or the other--forget whether I 
agree or disagree with them--but now we find out that we have 
this individual wandering around making determinations based 
upon her beliefs.
    Ms. Scarlett. Let me state again, Ms. MacDonald has 
resigned from the Department. We are striving to ensure the 
highest integrity of science----
    Mr. Miller. In 2004, in 2004, she----
    Ms. Scarlett.--and will continue to do that.
    Mr. Miller.--is letting people come into the office to take 
e-mails to undermine the government's case. 2004. This is 2007. 
She has resigned. That is no gift to the country. She has been 
wandering around there for three more years. This is a serious, 
serious ethical and legal problem for the Department, and it is 
a serious problem in terms of what we now can rely on or not 
rely on on at least two species, maybe three species that are 
absolutely critical to determining how we provide for the 
health of San Francisco Bay and the San Joaquin/Sacramento 
Delta. Absolutely critical in terms of the future planning of 
this state.
    What are you going to do?
    Ms. Scarlett. Congressman, we are striving--I can move from 
this moment forward, and we have been over these last months 
assuring what I believe is a process of integrity. Our Fish and 
Wildlife Service head of the Endangered Species Act Program and 
his counterparts in the regions are striving to utilize the 
best science and do so in a transparent way properly. Documents 
that are presented to the Department are reviewed to ensure 
that they have legal sufficiency, that they are coherent and 
clearly stated, and that is the policy of this Secretary, and 
that is what I am striving to do.
    On an ongoing basis, on an ongoing basis for----
    Mr. Miller. The process broke down in this instance? Did 
the policy break down?
    Ms. Scarlett. I believe it is extraordinarily important, as 
everyone----
    Mr. Miller. No, no, no. Did the policy break down?
    Ms. Scarlett. As everyone around this table has said, it is 
imperative that science proceed with the utmost----
    Mr. Miller. And I am asking you, everybody agrees to that, 
we all agree to that. In this instance, did the policy break 
down with the involvement of Julie MacDonald in these 
decisions?
    You are striving for something but you have a person 
wandering around exerting exactly opposite energy of what you 
say you are striving for.
    Ms. Scarlett. Sir, we created a process so that there would 
not be the sort of direct engagement in the field, but rather 
the appropriate departmental review process.
    Mr. Miller. So let me ask you. You created this policy----
    Ms. Scarlett. Which we think is the appropriate way to 
proceed.
    Mr. Miller. Did you create this policy knowing of her 
activities, so you worked around her, and she resigned now? Is 
that what you are telling us? You and----
    Ms. Scarlett. No.
    Mr. Miller.--the regional office are working around her 
involvement?
    Ms. Scarlett. No. As the ESA decisionmaking has unfolded 
over many years, including most recent years, Julie MacDonald 
strived to do what she thought was her duty to ensure quality 
product.
    Mr. Miller. Oh, give me a break. Give me a break on this, 
OK?
    Ms. Scarlett. As we----
    Mr. Miller. My time has run out. If you believe that, if 
you believe that, then we are in very serious trouble here, and 
the underpinnings of the integrity of this Department are in 
very serious trouble.
    Ms. Scarlett. Sir.
    Mr. Miller. And the ripples----
    Ms. Scarlett. Sir, let me----
    Mr. Miller.--of her activities are a real consequence.
    Ms. Scarlett. Sir, let me complete the sentence. As we 
became aware that there might have been some direct engagement 
with scientists in the field, we thought that that was not the 
appropriate way to proceed, and consequently we made assurances 
that that would not be how the decision process would unfold.
    Mr. Miller. But in a number of cases, that is how it 
unfolded at the end of the day, with all due respect. That is 
how it unfolded over the last three years.
    The Chairman. The gentleman's time has expired.
    Mr. Miller. It has expired. Mr. Chairman, I would like to 
make a request. I think at some point it is very important that 
the Committee staff have the ability to interview people from 
the Department, and former people from the Department under 
oath to make a determination. The has huge ramifications for 
the State of California, and I would like to discuss that with 
you later. I am not asking you to make a decision now, but I 
would like very much to discuss that with you later.
    The Chairman. The Chair understands.
    We will recognize the gentleman from New Mexico, Mr. 
Pearce.
    Mr. Pearce. Thank you, Mr. Chairman. I would join with the 
gentleman who just spoke. The wolf issue is a very major issue 
in New Mexico, and the current program managers can't tell us 
one thing about how many wolves are running loose outside the 
tract area, and I would like to under oath talk to the people 
who are implementing the wolf program in New Mexico because it 
does, it eats away at the very economic basis of our Western 
way of life because the grazing permits are being taken away 
from people whose livestock are being killed by the wolves, and 
all the people who are going to make sure that New Mexico has 
got all the wolves it need.
    By the way, when the wolves kill too many animals in 
Arizona, they bring them to New Mexico to release them, and I 
would like to get that under oath. So I would share the 
gentleman's request for a panel where we talk to people under 
oath.
    Ms. Scarlett, we had testimony from one of the witnesses 
that the Bush Administration is choking off the funding. Yet 
when I look at the funding I see in comparative years, if we 
take today and move back four years, take the end of the 
Clinton Administration, move back four years, see conservation, 
3.8 under Clinton, 9.7 under Bush; listing, 4.4 million under 
Clinton, 12 million under Bush; consultation, 16 million under 
Clinton, 47 million under Bush; recovery, 36 versus 67. That 
doesn't feel like we are choking funding off.
    Are we choking funding off? Can you make some sort of an 
assessment about the choking of funding?
    Ms. Scarlett. Sir, we have taken extraordinarily seriously 
our responsibilities under the Endangered Species Act, and I 
believe the budget numbers that you just described reflect 
that. I will add to that, that under the President's vision of 
cooperative conservation we have also increased cooperative 
conservation grants by some 50 percent. Those grants being 
precisely the vehicle through which we work with landowners to 
get on-the-ground recovery, and that to the tune of some 320 
million in our proposed 2008 budget.
    Mr. Pearce. Yes, the starving of funding is a curious 
statement.
    Are you familiar with any of the scientists? We have been 
hearing a lot about science. Are you familiar with any 
scientists in the agencies who have misused facts?
    I would direct your attention to the lynxes.
    Ms. Scarlett. I was going to say, sir, there was an 
instance several years ago in which some lynx's hair samples 
were----
    Mr. Pearce. Yes, there were three Forest Service employees, 
there were two Fish and Wildlife employees, and there were two 
State of Washington Department employees who basically 
falsified information so that in one article it said the 
culture inside the agencies is one that approves of lying and 
cheating on the part of the scientists involved.
    So when I hear about science, I realize we also need to 
balance it out by the internal agencies' willingness to achieve 
its agenda no matter what methods of science are used.
    Whatever happened to those people? We see Ms. MacDonald has 
resigned, and we see her--we are going to get her in here under 
oath or get you here under oath. Whatever happened to these 
Fish and Wildlife Service employees for lying and cheating? 
This is according to the newspaper that they did that.
    Ms. Scarlett. Sir, it has been about four years. I don't 
recall what actually occurred with them. What I do know is that 
it was that instance that actually resulted in our beginning to 
craft a Code of Scientific Conduct to try and create procedures 
whereby we could better assure that that would not happen, and 
that there would be accountability should it happen.
    Mr. Pearce. I was up about two or three years ago flying 
over a central Arizona project, and they were pointing out one 
down, that they would empty out, and then some environmental 
group brought suit so that they couldn't put the water back in. 
So the ended up getting $25 million, this environmental group 
got $25 million in order to allow them to put the water back 
in. That seems and feels like extortion.
    You have 111 suits right now that agencies and NGO's have 
brought against you--environmental groups. Do any of those 
groups ever make money off those lawsuits? Do they ever get 
settlements from the agency or someone?
    Ms. Scarlett. There are instances where there are 
settlements. There are also instances where their attorney's 
fees are paid.
    Mr. Pearce. Fees that are paid.
    Ms. Scarlett. That is correct. I do not have the tally 
though of what that would be.
    Mr. Pearce. So Defenders of Wildlife has four suits on this 
block of stuff. Defenders of Wildlife could actually draw 
revenue. They could draw cash payments for the outcome of that 
suit. Is that more or less correct, Mr. Scarlett?
    Ms. Scarlett. In the disposition of lawsuits, it is 
possible that organizations receive either attorney fees and/or 
settlement.
    Mr. Pearce. So the Defenders of Wildlife, when I get the 
word that the Defenders of Wildlife actually has received cash 
settlements, that would be somewhat accurate? It could be 
accurate?
    Ms. Scarlett. It could be accurate that there are cash 
settlements and attorney's fees paid.
    Mr. Pearce. As far as the wolf involved in western New 
Mexico--by the way, it is now--I will use this point to say 
that we have had spottings as far away as maybe 200 miles away 
in New Mexico. People are getting concerned. The last things 
the wolves did was go into a corral, they were chasing the 
horse. It ran back to its house, felt like it could get 
sanctuary. They attacked and killed the horse inside the corral 
there right behind the house. They have killed pets.
    What is the agency doing to see that no human life is taken 
because we had testimony in this Committee last year that the 
most provocative thing to a wolf is a baby crying or laughing? 
That was testimony that came from a scientist, a specialist. So 
I worry about my constituents when the wolves in my district 
actually come up and take a horse right out of its pen, and I 
mean they strip it down to where it is a skeleton left, it 
looked like piranhas had been associated with it. It was not a 
very pretty thing, and in fact then the next week they killed 
another horse right in the same area. Meanwhile the agency is 
trapped by people who would be bring lawsuit to keep it from 
touching any of the wolves, and they are supposed to. Their law 
says, the regulation says it is supposed to.
    What is being done to protect the innocent live in the 2nd 
District of New Mexico because Fish and Wildlife puts the 
killer wolves, the ones who are too big a danger in Arizona, 
they get brought to New Mexico, and New Mexico is a releasing 
point? I would like to take them to Central Park and release 
them there. If it is good for western New Mexico, it is good 
for every place. I think we should bring them here and put them 
loose on the mall. That would be nice. If it is OK for New 
Mexico, it ought to be good for anyplace.
    But tell me what is being changed about that.
    Ms. Scarlett. Sir, the Department and the Fish and Wildlife 
Service recognize the challenges of large species, be it wolf, 
grizzly bear or others, that do pose threats to human 
settlements, property, domestic livestock and so forth. The 
Endangered Species Act does require that we protect species 
that are threatened or endangered of extinction, and I believe 
the Department has done that well.
    We have just recently proposed the de-listing of the Gray 
Wolf in a portion of its range. As we do that, we do so with a 
very careful management plan in cooperation with states to help 
ensure that those wolves are managed in such a way that on the 
one hand they thrive, and on the other hand they do not pose 
threats to people.
    So it is a challenge. These are predator species. On the 
other hand we try to both ensure that human populations and 
domestic livestock are protected by working with states in 
their management as well as with local communities, and then at 
the same time fulfill our responsibilities, but it is an 
ongoing challenge.
    Mr. Pearce. The ranchers out in western New Mexico wish 
they would be listed as an endangered species where they could 
get that same protection from the U.S. Government. Thank you. 
Appreciate it, Mr. Chairman.
    The Chairman. The gentleman from Wisconsin, Mr. Kind.
    Mr. Kind. Thank you, Mr. Chairman. I want to thank you for 
holding this very important hearing, and for the testimony that 
we have had here today, and quite frankly, it is astounding, 
you know, just hearing the reports and the accounts, and it is 
not just limited to the Department of the Interior, but 
virtually every Federal agency in this administration in 
regards to the political manipulation of facts and 
scientifically based studies, and I am talking about political 
appointees in the Pentagon, I am talking about the U.S. 
Attorney scandal right now, I am talking about the revision and 
rewriting of global climate change and global warming reports.
    Now this ESA is really just the tip of the iceberg of what 
we have been seeing consistently through the administration. I 
am not confident that this matter with Julie MacDonald will be 
held right internally, I wouldn't be surprised if she gets the 
Medal of Freedom Award by this administration at the end of the 
day.
    In all seriousness, reading the IG's report should be a 
call for action on this, and yet given Secretary Kempthorne's 
glowing praise for her at the time of her resignation, I am not 
at all confident that the Interior Department has the 
willingness or capability of bringing some accountability to 
this matter, and that is tragic because not only has the 
Congress lost confidence of this administration and in this 
agency in dealing with this, but more importantly, the American 
people are because they see this manipulation that has been 
taking place over the last six years in this administration.
    I know this has been uncomfortable for you, Ms. Scarlett, 
but that is the way it has to be, and I want to specifically 
ask you a question in regards to the process of de-listing the 
grizzly bears right now, and the American Bald Eagle, and 
whether or not the proposed changed rules that is pending at 
Fish and Wildlife has had any influence in that decision as far 
as de-listing of the Grizzly at Yellowstone and the American 
Bald Eagle that we are about to move forward on.
    Ms. Scarlett. Let me speak first to the Bald Eagle. The 
Fish and Wildlife Service has been working for some time on a 
de-listing proposal for the Bald Eagle. When the Bald Eagle or 
if the Bald Eagle is de-listed, it comes under the protection 
of the Bald & Golden Eagle Protection Act. Therefore, it will 
continue to have significant protections.
    Mr. Kind. I understand that, and I submitted a letter to 
you, or to Secretary Kempthorne dated April 13, signed by 25 of 
my colleagues, including the Chair and Mr. Miller here, 
questioning the wisdom of redefining the definition of 
``disturb'' under the Bald & American Eagle Protection Act, and 
this is important.
    Ms. Scarlett. It is.
    Mr. Kind. It is an important factor, and as far as 
maintaining the appropriate protection for the Bald Eagle, 
which is an incredible success story, and the American people 
see it as such. But if we blow this now----
    Ms. Scarlett. Yes.
    Mr. Kind.--in redefining definitions that have common 
meanings and common practice, then we are not going to be able 
to list it in one of those successful stories.
    Ms. Scarlett. Sir, I believe the definition that we now 
have builds upon the very common practice that you are talking 
about. There were earlier definitions that have been 
repudiated. The one that is currently under consideration 
builds upon common practice and the experience of our Fish and 
Wildlife Service.
    Mr. Kind. Well, if I could request a written response to 
the letter that we have submitted, and I will give you another 
copy of the letter today, and perhaps a briefing, and I am 
taking the lead on it, and if you have someone that is 
specifically--and I have had conversations with Director Hall 
about this matter myself for some reassurance, because all the 
fly always counsels were raising concerns about this 
definition, and perhaps most importantly, most of the state 
fish and wildlife agencies are saying themselves are saying 
that the proposed redefinition was unworkable, and wouldn't 
provide adequate protection for the Bald Eagle, and it is 
important that they are on board with all of this given the 
reliance Fish and Wildlife has in working with the state 
agencies in the implementation of these practice plans.
    So if you could submit that written response or have 
someone respond to us, and then I would like to sit down with 
someone.
    Ms. Scarlett. Be happy to do that, and we concur that it is 
imperative that that definition of disturb build on common 
practice, and assure the long-term survivability and 
flourishing, indeed, of the Bald Eagle.
    Mr. Kind. And as far as Mr. Ruch and Dr. Grifo and Ms. 
Clark is concerned, we have heard some very good 
recommendations on what type of action that perhaps the 
Congress can take as far as tightening up these procedures to 
see that the science is being pursued and implemented, and what 
we would be asking from you is maybe some specific proposals 
and what action this Committee, this Congress can be taking, 
assuming that the administration themselves or the agency is 
incapable of implementing changes in light of the IG's reports 
and all the other reports coming out.
    I have heard the need of greater transparency, greater 
whistle blower protection, perhaps changing the definition of 
the standard of proof from arbitrary and capricious to 
something that might--we might have to look at in that regard, 
in regards to the definition of proof that we currently have to 
show, but we would be looking for some specific proposals, and 
I think some of that is already in your written testimony. I 
haven't had a chance to review everyone's written testimony 
yet, but that would be very helpful as we move forward.
    Thank you all again, and thank you, Mr. Chairman.
    The Chairman. The Chair recognizes the gentleman from 
Colorado, Mr. Lamborn. I apologize for not recognizing him 
earlier as he was the first here today.
    Mr. Lamborn. Mr. Chairman, thank you.
    We have had some discussion today about the role of science 
and I think there has been a--some people may have given the 
impression that science never varies and people are always in 
agreement, and all scientists are going to look at a problem 
and come up with the same answer and conclusion.
    Dr. Grifo, I hope I pronounced that correctly.
    Ms. Grifo. Yes.
    Mr. Lamborn. Wouldn't you agree with me that scientists can 
look at the same set of facts and in good faith come up with 
differing conclusions?
    Ms. Grifo. Yes, sir, and that is the purpose of peer 
review. That is the purpose of exchanges at scientific 
meetings. I mean, I am not going to sit here and tell you that 
every scientist is in lock-step on every topic. But I think the 
problem that we have seen at Interior and with Fish and 
Wildlife is that there is no clear policy that even allows the 
career scientists to be at those meetings, to publish in 
those----
    Mr. Lamborn. Well, that is OK. I didn't ask about that.
    For instance, what is a species and what is a subspecies? I 
mean, a subspecies is not a species, but yet you have the 
lumpers and the splitters, you know, to use a colloquial term, 
in the scientific community, and some will say that subspecies 
shouldn't get extra protection and others would say it is 
separate and should get.
    Don't you agree then that we have these good faith disputes 
and if scientists can't agree, you know, what is a bureaucrat 
going to do?
    I mean, it is not as clear-cut as maybe some of the panel 
have intimated. Wouldn't you agree with that?
    Ms. Grifo. The Endangered Species Act asks for the best 
available science, and that is what we need. Now, that best 
available science can come from a number of different sources, 
and it can reflect a variety of different opinions.
    Unfortunately, what we are seeing is that when there is a 
reconciliation of those opinions, that the science is being 
changed before that open process even occurs, and that is the 
problem, sir.
    Mr. Lamborn. Well, and the reason I bring this up, in 
Colorado, we have the Tree Bulls Meadow Jumping Mouse, and then 
it was getting additional protection, and yet a scientist came 
along and said, hey, that is genetically identical to the Bear 
Lodge Jumping Mouse, which is not threatened up north, north of 
Colorado. So that has created all kinds of turmoil, and 
millions, tens of millions of dollars of expense to the 
taxpayers, and private property owners.
    Ms. Grifo. Could I respond?
    Mr. Lamborn. No, that was just a comment.
    Ms. Grifo. OK.
    Mr. Lamborn. Thanks for your willingness though.
    Ms. Grifo. OK.
    Mr. Lamborn. Ms. Clark, a question for you, a conceptual 
question. If there is a species that is common and thriving in 
another country, like Canada, let us say, but its total 
territory in the U.S., it is under threat, and wherever it 
lives in the U.S., and its habitat and it itself is under 
threat and in danger. What should we do? Should we assume that 
because the species itself, its future on the planet Earth is 
assured, but in the U.S. it is under threat. Should we take 
steps to protect it in the U.S. where it is under threat?
    Ms. Clark. The U.S. Endangered Species Act does under the 
definition of species provide protection to species, subspecies 
and distinct vertebrate segment, and the policy defining 
distinct vertebrate segment, at least while I was at Interior, 
did in fact acknowledge that the United States had an 
obligation to protect the species within its borders because 
the reach of the law as it relates to consultation, obligations 
for recovery, and interagency coordination happens only within 
the United States.
    So there actually are a number of species on the list, the 
Woodland Caribou, the Northern Rockies Wolves, Marble Murrelet, 
all of which a decision was made that they were important to 
the ecology of the United States, and the Endangered Species 
Act should afford them protection under the rules of the U.S.
    Mr. Lamborn. So hypothetically speaking, if there is a lynx 
or a be Polar Bear or anything else, and it is thriving in 
Canada, and it only historically was ever marginally in the 
U.S., that marginal existence in the U.S. would trigger all 
kinds of action against private landowners or anything like 
that who might step in the way of that species where it is 1 
percent existence in the U.S.?
    Ms. Clark. Well, the existence, and having suitable range 
in the United States affords the opportunity of the Endangered 
Species Act to provide that protection. Yes, it does. Today's 
law allows for the protection of the U.S. range species in 
danger from their status in the United States.
    Mr. Lamborn. OK. So the law doesn't contemplate the 
existence of that species in other like neighboring countries?
    Ms. Clark. It can, but there is the opportunity given the 
reach of the law, the other sections of the law--recovery, 
consultation--to declare the U.S. population a distinct 
vertebrate segment because it recognizes the international 
borders. That was done by policy years ago.
    Mr. Lamborn. Along a similar vein, and I know 
Representative Young, who was here a few minutes ago, would 
come down on this, but I question whether the original intent 
of the law and those who passed it in Congress 30 some years 
ago, for instance, wanted insects to be on the list of 
endangered species, and I noticed that in your comment you 
refer to how it is good that we are bringing back the wolf, the 
Timber Wolf, and the manatee, and I believe the eagle is the 
other species you cite, and those we would all agree deserve 
and need protection, and it is wonderful what is happening.
    But were insects intended by the original passage of the 
law?
    Ms. Clark. Yes, absolutely they were, Congressmen, because 
if you look at the ecological web of life, we don't 
differentiate between charismatic mammals or insects, fish, 
amphibians, reptiles, about the ecological connectivity of the 
fabric of what makes up the systems and the unique habitat 
systems in this country.
    And so there are a number of insects--butterflies, they are 
insects. Most wouldn't debate that. And so it suggests some 
level of taxonomic arrogance to decide whether a wolf gets 
protection and a Bay Checkerspot Butterfly does not. These 
species are afforded legal protection regardless of taxonomic 
classification.
    Mr. Lamborn. Excuse me?
    Ms. Clark. I just summarized by saying all the species, 
whether they are an insect, a mammal, a reptile, if they are in 
danger of extinction or threatened with endangerment should be 
afforded legal protection.
    Mr. Lamborn. Thank you.
    The Chairman. The Chair recognizes the gentlelady from the 
Virgin Islands, Ms. Christensen.
    Ms. Christensen. Thank you, Mr. Chairman.
    I was particularly interested in this hearing. 
Unfortunately, I had another just about equally important 
hearing so I have been back and forth, but I want to thank you 
for holding this hearing because it deals with two issues that 
have been of great concern to me. One is the weakening of the 
Endangered Species Act.
    In my time serving on the Committee on National Parks, we 
have fought back unsuccessfully in the last Congress some 
encroachments on that using exaggerated issues regarding the 
Department of Defense or Native American populations, and 
today, I haven't completely gotten through all of the testimony 
either, but I notice reports of reducing staff, which also 
undermines the ability of the Department to address the issues 
concerning the Endangered Species Act.
    But another issue that, as Mr. Kind said, goes far beyond 
just this one agency is the changing of reports and the 
replacement of scientists by not only industry people, but 
religious ideologies, and so the reports don't come out based 
on the best available science.
    One of the reports that I dealt with as a physician was the 
one coming out of the agency on health care, quality and 
research on health disparities. The first report actually 
showed that there were major disparities between racial and 
ethnic minorities and the rest of the population, and when it 
got to the Office of the Secretary, that report was changed so 
that the report as it came out initially showed that there were 
no disparities. Luckily, some of the Committee members over 
here had them go back and issue the original report.
    So I am hoping that beginning to look at this one issue 
today in this agency will help to reverse some of that, and it 
is important that we be able to have confidence in the reports 
coming out of the administration.
    I guess, about to ask one question that I am sure it has 
probably been asked. Again, I would ask Deputy Secretary 
Scarlett, because it is important that we are able to have 
confidence in the reports coming out, if all of those reports 
that came out under Ms. MacDonald, are they being reviewed and 
can we anticipate that they will be revised or looked at and 
revised, if necessary, using the best available science?
    Ms. Scarlett. Congresswoman, this issue has come up several 
times this morning. Let me just say right now as clearly as I 
can where there is evidence of science manipulation, we want to 
correct that, and we will explore where those incidences are 
and address them.
    I do want to say that I believe we are applying scientific 
integrity. I think that in the Fish and Wildlife Service we 
have outstanding scientists. I trust them. I rely on them. I 
defer to their judgment, and Secretary Kempthorne likewise does 
as well. If there are incidences and specific examples of 
interference, we will look at those and take whatever steps are 
appropriate.
    Ms. Christensen. Deputy Secretary Scarlett, my workings 
with you, you know, I have worked with you on issues at home 
and other places, and I found you to be a person of integrity. 
I think though that everyone of the reports that has come out 
under the personnel who resigned needs to be reviewed because 
unless we look at all of them we won't know if there were some 
decisions that were made that were not based on science. To me, 
the assumption should be there that all of them may have some 
flaw and need to be looked at.
    Mr. Chairman, I have no further questions.
    The Chairman. The gentleman from South Carolina, Mr. Brown.
    Mr. Brown. Thank you, Mr. Chairman. I will be brief. I 
notice a lot of other questions need to be asked, but I was 
going to ask Dr. Grifo, if I might. Let me give you an example 
and see how you would respond.
    There is a species that is currently at an historic 
population level but whose habitat may be significantly altered 
in the next 50 to 100 years. Should the Fish and Wildlife 
Service list this species today?
    Ms. Grifo. That is a question for the process that the 
Endangered Species Act requires, the best available science. We 
need to have the career biologists do their part, whatever 
advisory committees are appropriate do their part. I mean, that 
is not for me to answer. The important thing is that we have a 
process that this Act enables, and the important thing is that 
we do not manipulate the science going into that process. That 
is what is critical to the outcome.
    Mr. Brown. I would like, if I may, Mr. Chairman, is to 
yield my available time to Mr. Pearce.
    Mr. Pearce. Thank the gentleman for yielding.
    Ms. Clark, I was hearing your comment about equal 
protection for any species. So if you had to choose or if we 
had to choose between a species and a forest dying, which would 
you choose?
    If it is a matter of the trees and the forest dying, or in 
spraying to protect the trees, you might kill the butterflies 
there, what decision would you have made as director?
    Ms. Clark. I don't make decisions in the hypothetical, 
Congressman.
    Mr. Pearce. Well, it is not hypothetical. Let us go to New 
Mexico right now, Cloudcroft, New Mexico. We have 50 or 60 
thousand acres that have already died, every tree there. They 
have a disease which started about two years. The Forest 
Service made the decision not to spray for the butterflies and 
for the Spotted Owl. Meanwhile the forest is going to simply 
die. Cloudcroft, New Mexico, sits nestled in there, and the 
fire alarm, the fire danger among the citizens is 
extraordinarily high. People are bringing suits to keep from 
cutting the trees.
    My question is then in the non-hypothetical, would you 
spray and kill butterflies or would you save the forest?
    Ms. Clark. There is a provision in the Endangered Species 
Act that----
    Mr. Pearce. I am asking what you would do. Would you make 
the decision to spray and save the trees and kill butterflies 
or would you do what has been done right now?
    Ms. Clark. I am not going to give you a yes or a no, sir. I 
would make the decision----
    Mr. Pearce. That is OK then. I would reclaim my time then. 
I am just asking your input because a decision has been made 
and we got people who are very gravely at risk because of 
decisions that are made.
    Ms. Scarlett, you might want to think about that because it 
is an issue that we will be bringing up. It is a very difficult 
issue, and we have a community at risk, the same sorts of 
qualitative decisions are being made every day, and so that in 
this Committee two years ago we heard a city councilman from 
San, I think, Bernardino or one of the Sans out there in 
California, and she says, our community is the greenest of the 
green, and she said, I am the greenest of the green 
commissioners on the city council, and she said, we can't even 
build a room on the back of a house to accommodate invalids in 
our town because of the Endangered Species Act. She said the 
Endangered Species Act is broken from the eyes of an 
environmentalist, from the eyes of the greenest of the green, 
the Endangered Species Act is broken beyond belief, and you 
need to fix it.
    I doubt that we hear that testimony here today, but I would 
yield the gentleman back his time. Thank you.
    Mr. Brown. Mr. Chairman, I yield back my time.
    The Chairman. The gentleman from New Jersey, Mr. Holt.
    Mr. Holt. Thank you, Mr. Chairman.
    Ms. Scarlett, I would like to pursue some of the line of 
questioning that Ms. Christensen and others have been following 
that really has to do with the environment in which the 
scientists operate so that we can have good science.
    First of all, you said you were unaware of any gag order at 
the Interior Department. Are you familiar with the memo that 
was sent to Fish and Wildlife Service employees instructing 
them not to talk about the relationship between climate change 
and Polar Bears?
    Would you call that a gag order?
    Ms. Scarlett. I am aware of that particular memo. I could 
answer it or I have with me Dale Hall who actually wrote the 
memo who could describe its purposes and intent.
    Mr. Holt. Well, I have other questions I want to get to, so 
let me just ask. Would you call that a gag order when it says, 
let us see--anyone approved for travel from the Fish and 
Wildlife Service ``will not be speaking on or responding to 
these issues.''
    Ms. Scarlett. My understanding of the memo which pertained 
to some international travel is that we had a delegation going 
to a meeting, and an inquiry had come as to what the subject 
matter of the meeting was, and the memo was intended to say 
that for the purposes of the Fish and Wildlife Service 
attending the meeting, their topic was not climate change; that 
they were to speak on the topics in which they had expertise, 
and that was the intent. It was not intended to be a gag order, 
but rather a clarification of what the purpose of the travel 
was who was going, and as in any international delegation, to 
have assignments clearly appropriated.
    Mr. Holt. Well, this gets at my point. It seems to me that 
you have a lot of remedial work to do, you and the others 
heading the agency, with 30 percent of the staff positions 
vacant in the Ecological Services Program, with the top 
professional position in charge of Federal endangered species 
efforts vacant for the better part of a year. I have to ask 
whether people feel comfortable in those jobs, if you are 
having trouble filling those positions because it is a very 
uncomfortable position to be in, or whether you are choosing 
not to fill those positions so that the ESA will not be 
enforced.
    Ms. Scarlett. Sir, neither of those.
    Mr. Holt. Neither of those.
    Ms. Scarlett. This Department remains strongly committed to 
fulfilling the provisions of the Endangered Species Act, and I 
have with me today Bryan Arroya who is actually serving in the 
capacity of head of the ESA program to which you allude.
    Mr. Holt. Now, there were earlier questions about what 
steps have been taken to correct what might be manipulation of 
science by a now retired or resigned official, and you seem to 
say that you were not making the effort to review and correct 
any of the errors that might be in there.
    You owe it not just to your employees, and not just to us, 
but to the country to do everything you can to restore the 
environment of good science there, and that would include 
making sure that any errors in science, any manipulation in 
science that occurred for whatever reason, political are not, 
are corrected, and that the positions are filled with people 
who are competent in their area, and that they are told when 
hired that they will be free to practice the science.
    You have some real remedial work to be done regardless of 
what happens to individuals who are fired or who resign, and 
other departments have faced this. A few of them have tried to 
deal with it, but this is a critical situation throughout our 
government--the politicization of science and the disparaging 
of scientifically trained staff, and my time has expired, but I 
just want to make sure that you understand the seriousness of 
the task in front of you.
    Ms. Scarlett. Sir, let me reaffirm that where there is 
evidence of science manipulation we will act upon it. I take 
that challenge and charge very seriously. You will find no 
greater champion of integrity in science than myself and this 
Secretary, and we will strive to take whatever actions we can 
to ensure that that is publicly evidenced as well as 
internally.
    Mr. Holt. You and he should sit down with every memo that 
passed through the hands and that might have been subject to 
alterations or manipulation, you should be sitting there at the 
table with scientists going through word by word and correcting 
those.
    Thank you, Mr. Chairman.
    The Chairman. The gentleman from Arizona, Mr. Grijalva.
    Mr. Grijalva. Thank you, Mr. Chairman, and I think much of 
the discussion or a big part of it has been about the 
Endangered Species Act itself, and the philosophical 
differences we might hold here regarding that Act. I want to 
get back to the scheduled substance of this hearing which had 
to do with manipulation that occurred, and in my mind there is 
no doubt, and the distortion that happened to the integrity and 
the empirical information that people use, that we use to make 
decisions under the Endangered Species Act. That is the 
fundamental issue, I think, at this hearing, and I agree with 
my colleagues, as they have said, that this is almost a 
pathological behavior on the part of the administration, not 
only in the Interior Department, but in other departments as 
well.
    Let me ask, with the exception of the Deputy Secretary, the 
three witnesses, part of our responsibilities that our Chairman 
talked about at the beginning has to do with the oversight and 
remedy that we need to talk about on the issue of distortion, 
manipulation, and the debasing of science and fact as part of 
the decisionmaking, and if you could for the record and briefly 
each one of you a central one or two recommendations that you 
mention in your testimony, if you could elaborate on those that 
would help guide this committee in terms of oversight and 
remedy for the long haul, and we can begin with Ms. Clark.
    Ms. Clark. Thank you, Mr. Grijalva.
    I will leave it to my colleagues to talk about some of the 
transparency and whistle blower issues, but we are quite 
concerned, I am quite concerned about the kind of 
administrative policies that are under rewrite. I am very 
interested in working with the Department.
    I absolutely believe in the Deputy Secretary's and the 
Secretary's goals, and so whether it is--certainly it might not 
be their intent from our perspective the effect of what we know 
about the regs that are under revision will seriously, in 
essence, rewrite the implementation goals of Section 4, the 
listing provisions, the recovery provisions, the consultation 
provisions, and clearly I don't know how else to interpret 
``delegate to the states'' other than delegate to the states, 
you know, states that are ill-equipped to take on some of these 
challenges, though I certainly agree that greater participation 
and collaboration and openness is important.
    So while I was asked earlier whether the Clinton 
Administration developed regs to implement the Act, and 
Secretary Scarlett answered our purpose quite well, the issue 
that concerns me is that while I believe we were working really 
hard to make the Endangered Species Act ``function'' better, we 
never lost sight of the goal of achieving species recovery, and 
through some of the processes that I understand are underway--
of course, not having seen this version of the draft regs--we 
stand ready to work with this Department, but I really fear it 
is on a fast track, and I urge the Congress to pay careful 
attention to the regulatory process underway because what was 
not achieve legislatively in the last Congress could easily be 
achieved administratively, and that would be a real nail in the 
coffin for the Endangered Species Act.
    Mr. Grijalva. Yes, I am looking forward to seeing how Mr. 
Hall and the Department identify frivolous petitions as we go 
along in this process.
    If the other witnesses want to make one central 
recommendation, I would appreciate that, or a couple.
    Ms. Grifo. Yes, I think one of the most important things, 
and it has come up several times this morning already, is open 
communication. In response to the Department of Commerce media 
policy, we have sent a long letter--10 plus pages--to Secretary 
Gutierrez about the problems in that Department of Commerce 
policy, and we are happy to make that available.
    But some of the central things in that are that, you know, 
when you become a scientist and work for the Federal 
government, you are not giving up your First Amendment rights, 
you are not giving up your ability to talk about your taxpayer-
funded research results, and we have to really honor the work 
that these biologists are doing and allow them that opportunity 
to take advantage of that central pillar of the scientific 
method, which is communicating those results, talking about 
those results.
    To have a Fish and Wildlife Service scientist at a 
professional meeting have to not be able to answer a question? 
I mean, there is no clear policy that we could find on those 
websites. This is something that could happen very quickly. We 
have a model media policy that could be adopted tomorrow by the 
Interior Department.
    Mr. Grijalva. Sir?
    Mr. Ruch. I think the central thing this Committee could do 
is open up the black box of decisionmaking in the Department of 
the Interior. We have heard today about the formation of an 
accountability board. We don't know who is on it. We don't know 
what standards they meet. We don't know anything about it. We 
have heard now about an internal review process that is not 
spelled out that no one has heard of before.
    If there is a paper trail and a transparent process where 
when these changes are made, when the scientists from the 
Department are overruled, there is a record and there is a 
written justification, we wouldn't have need for this hearing.
    The other thing I would add very quickly is that the 
ability of civil servants to communicate with the Congress, to 
talk to you and your staff, need to have some enforcement 
behind it because, to the extent that you have the ability to 
see into the opacity of these agencies directly, that would be 
a very strong preventative step.
    Mr. Grijalva. Thank you, and I think the resignation of Ms. 
MacDonald does not remedy the issue that we are dealing with 
here, and I would hope that each one of her decisions, each one 
of her reviews are looked at very carefully and in a very 
transparent way, examined for the appropriateness and to assure 
there was no manipulation or distortion of that information.
    Mr. Chairman, if I may for the record like to ask you if I 
may enter into the record a letter that I and Congressman 
Mitchell sent to Director Hall dealing with the de-listing of 
the Southwest Desert Bald Eagle, and accompanying information. 
Given some of the things that we have all read and heard about 
regarding manipulation, I would request that his response be 
made available to all the Committee as well.
    Thank you.
    The Chairman. Without objection, the gentleman's letter 
will be made part of the record. And you are asking for written 
responses, are you? And we would ask the persons to whom those 
questions are directed to respond for the record.
    [The letter submitted for the record follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairman. The gentlelady from California, Ms. 
Capps.
    Ms. Capps. I concur with the remarks that my fellow 
Californian, Mr. Miller, by requesting further questioning of 
staff of the Department, if necessary, under oath referred to a 
minute ago by Jeff Ruch.
    Turn this microphone on so I can face the witnesses, and 
thank you for being here today, particularly my constituent who 
is our Deputy Secretary Scarlett from my district in 
California.
    We all understand that the ESA designates critical habitat 
in order to ensure the recovery of endangered species. Now, in 
2005, the Department issued a rule to cut back habitat along 
the Pacific Coast for the threatened Snow Leaf Plover by over 
40 percent. I am using the Plover as an example for many such 
rules, and its final rule, because I want to highlight the--I 
quote from the preamble to the rule on this and many other 
examples. The Bush Administration has included the following 
statement. I am quoting from that rule, and I have a copy of it 
here.
    ``In more than 30 years of implementing the ESA, the 
Service has found that the designation of critical habitat 
provides little additional protection to most listed species 
while preventing the Service from using scare conservation 
resources for activities with greater conservation benefits.''
    It is my understanding that some attorneys working for the 
Department oppose the inclusion of this statement in critical 
habitat designations, being of the opinion that this 
inappropriate language.
    So I want to ask you, Secretary Scarlett, what is the legal 
justification for including this statement in a final rule on 
critical habitat designation?
    Ms. Scarlett. Congresswoman, nice to see you.
    I am not an attorney so I am hesitant to give the legal 
justification for that terminology. It is language that was 
proposed by the Assistant Secretary Craig Manson, a former 
judge and a lawyer. So I would prefer to be able to get back to 
you with a legal opinion on that, which appears to be what you 
are asking for.
    Ms. Capps. I would appreciate that in writing, but while we 
are having that conversation perhaps in a non-legal way. There 
must have been some reason for putting this statement in the 
rule.
    Ms. Scarlett. Let me speak in a non-legal way, not trying 
to present the legal justification, but for some time now, and 
including, I believe, and Jamie could speak to this in the 
previous administration, there has been concern that critical 
habitat as practiced has not really added advantages to species 
or enhanced their survivability, if you will.
    One of the things that we have been actually looking at in 
the proposed or possibly proposed changes to the ESA 
regulations would be language that we think would breathe life 
into critical habitat by actually defining it and strengthening 
its purposes and role toward recovery. But I think it is in 
light of the history of critical habitat which added on to the 
context of other protections of the species really didn't add 
much value that that language was proposed.
    Ms. Capps. And let me ask you a question then about the 
value, and what studies there are to determine this statement 
that you just made. You aligned it with the previous 
administration, but you must affirm it if its presence still in 
the rule, that there is no need, you know, for additional 
protection.
    Is this based on studies?
    Ms. Scarlett. Let me clarify. There often is need for 
significant protection of species. The issue at hand is whether 
critical habitat as implemented has provided that additional 
protection, and yes, there are a number of academic studies 
that have evaluated critical habitat and its role in helping 
species recovery that are very critical of that role.
    Ms. Capps. Let me then thank you. I look forward to some 
more statements because it says in the--where I quoted, it 
says, ``The designation provides little additional 
protection,'' so that is in the rule.
    Dr. Grifo, you referred to a lot of this in your opening 
statement. I am not sure you mentioned the Plover specifically, 
but it doesn't matter. I mean, that is of interest along the 
Pacific Coast very much, but whether you talk about this rule 
with respect to that issue, that species or others, the same 
rule has been used many times.
    Ms. Grifo. Yes. I would say--I mean, right now we are 
looking at about 30 species for possible scientific problems in 
the way that they were listed or in the way that the critical 
habitat was designated, and I would just like to say as an 
aside that really less than half of those, I mean a bit less 
than half of those have anything to do with Julie MacDonald, so 
this is a much broader problem than that.
    Ms. Capps. Right.
    Ms. Grifo. We have many, many other specific examples that 
we are looking at that at this point do not have her influence 
on them.
    But I would say, you know, I go back to the Endangered 
Species Act. I mean, there is a process under which, you know, 
the critical habitat is designated, and if we want to have a 
full, open, scientific debate about the value or non-value of 
that, then let us have that in the open and draw those 
conclusions and move on. But at this point the law that we have 
says we will designate that critical habitat, that that is an 
important part of the whole process.
    Ms. Capps. Just finally if I could add, I know the red 
light is on, are you aware of studies on both sides of this 
issue or many sides of it?
    Ms. Grifo. There are many sides of this issue.
    Ms. Capps. Yes.
    Ms. Grifo. And I would also say that it depends on the 
particular taxa that we are talking about. I mean, depending on 
the organism and the way that it uses its range and habitat, 
there is going to be a rang of effects.
    Ms. Capps. Thank you. I look forward to the written 
statement, but I also think we need more questioning.
    The Chairman. Let me go to the gentleman from Maryland who 
has been very patient and with us from the very beginning this 
morning, Mr. Sarbanes.
    Mr. Sarbanes. Thank you, Mr. Chairman.
    I remember where I was when my 16-year-old daughter told me 
she wanted to be a scientist because I was so excited about it, 
and the testimony today has left me sort of with a sinking 
feeling in the pit of my stomach because my ambition for her, 
she will make her own mind, but if she was going to be a 
scientist is that at one point she would be on the public 
sector side of that and contributing in ways that so many 
scientists that you have described are trying to do, and I have 
to worry about--you know, we talk about climatic change in the 
global sense. There is definitely a climatic change underway 
with respect to the scientific community being able to bring 
forth its best research.
    So the other thing I have sort of been engaged in 
informally is my own little research project. I am sitting on 
committees that have looked back at some of the overreaching 
that is going on with respect to these agencies, and as best I 
can tell, maybe there is not a handbook, but there is certainly 
plenty of evidence that there might be on how you undertake to 
destroy the reputation of government and sell the idea that 
there is no such thing as good government in this country, and 
the three-point approach is you can either reduce resources 
dramatically, which makes it tougher for people to do their 
jobs; or you can do outsourcing with no oversight, which then 
leads to poor performance which reflects back on the agency; or 
you can have political interference of the kind that we have 
discussed today.
    Everyone does it--sort of customizes, depending on the 
agency. We have seen how the army did it in the case of 
Sergeant Tillman and Jessica Lynch. We have seen what happened 
at GSA over Lorena Doan. We have seen what the Council for 
Environmental Quality in the White House did with respect to 
crossing out whole portions of the scientific reports on global 
warming. We have seen what the Department of Education did with 
respect to the Reading First Program. We have seen what the 
Vice President and his folks did with respect to the CIA, et 
cetera, et cetera, et cetera.
    I am going to ask you a question that may sound sarcastic 
but it is not. Can you describe to me what you think may be 
some of the unique or special vulnerabilities that exist within 
the agency that is the focus today to this kind of political 
interference?
    In other words, if I was out to do the kind of distortion 
that you have described, what would be the most effective way 
for me to accomplish that?
    You have talked about phone calls actually coming into the 
field, telling people out in the field to change a number, to 
change a sentence, to change a conclusion. That seems pretty 
heavy-handed and not particularly sophisticated way of going 
about it. But describe to me, what are the particular 
vulnerabilities that this agency has, that this program has to 
this kind of interference? We will start with you.
    Mr. Ruch. Scientific careers are delicate things, and a 
career can be derailed in a lot of way that isn't even 
considered a formal personnel action. So suddenly not being 
invited to conferences, being forbidden from making 
presentations, those sort of things are the--and preventing 
them from publishing--are the kind of things that are generally 
unchallengeable, management discretion that are life and death 
decisions for that scientist's career.
    There is another layer, and that is the scientists have 
almost no legal protection. Generally, what the conflict is--
these scientists they are not whistleblowers. They are not 
trying to go on 60 Minutes. They are just trying to do their 
job, and there is no overall protection for these scientists 
who are basically just trying to do what they have always done, 
and for the most part the people that we see are utterly 
stunned in that they were doing the same thing they were always 
doing. They just weren't paying attention to the political 
whims behind them, and when they suddenly recognize that they 
were institutionally inconvenient, it sort of shattered their 
entire world.
    An additional problem is the recent U.S. Supreme Court 
decision, Justice Alito's first swing vote, that ruled that 
government employees at all levels of government lack any First 
Amendment protection when they are speaking as government 
employees. That is sort of a devastating decision in terms of 
the role, and the rationale was because government owns their 
speech.
    So for people to enjoy constitutional protection, they 
almost have to kind of stand up and rebel, which is itself a 
stance fraught with professional danger, and then you add onto 
that the utter, almost inapplicability of whistle blower 
statutes. So traditionally under the Civil Service Law, in 
order to be a whistle blower somebody has to be reporting a 
violation of law, and imminent danger, gross waste or 
mismanagement, taking out a key recommendation. Watering down a 
methodology, suppressing information usually doesn't rise to 
that level.
    So for the most part you have people that are going into 
battle that don't even think that there is supposed to be a 
fight without any arms.
    Mr. Sarbanes. Yes.
    Ms. Clark. If I could respond to that. I think what is most 
chilling to me, having spent a lot of time in Federal 
government, is there is something special about a career 
biologist, a career scientist. They are incredibly passionate, 
incredibly committed, and they want to be heard. That doesn't 
mean that their decision rules or their recommendation rules, 
and that is not what we are talking about here because, you 
know, it is important. I mean, let me give you some of the 
sound bites I have heard.
    It is things like ``I have never seen such disregard for 
career biologist opinion. I have never been so summarily 
dismissed,'' and then when you have two of the highest ranking 
career officials remove from their positions, after 
considerable long careers, highly recognized, highly respected, 
and shunted off into other positions, that sends this 
reverberating chill through the agency that is indescribable.
    Many of these biologists are single income or balancing 
dual careers, which is very difficult to balance dual careers 
in geographic locations, and so what I hear is, you know, it is 
easier to shut up. It is amazing that there are decisions being 
made that career people aren't even signing off on anymore.
    It is one thing to have a recommendation bubble up to 
Washington and have a policy decision to do something 
different, that is the right of the political appointee. It is 
another thing to call down into the ranks of the--I mean, for a 
GS-9 to get a call from a deputy assistant secretary is pretty 
overwhelming, and the way that the Service deals with that, 
which I have found really interesting, is when they are under 
fire they start--I mean, you see it in the work that UCS 
computed.
    What they put on e-mail is truly a cry for help, you know. 
``Per Julie, change this.'' So it is very clear to anybody that 
is watching that that is what has triggered it. You know, there 
were times during my time at the Department where decisions did 
not follow the recommendations of the career biologists, but I 
do not recall one instance where we forced the changed of the 
underpinning information.
    Mr. Sarbanes. Thank you for your testimony. I think I am 
out of time.
    Ms. Grifo. Can I also?
    Mr. Sarbanes. Mr. Chairman, can we get one more response? 
Yes.
    Ms. Grifo. OK, thank you very much.
    I just want to further emphasize some of the things that my 
colleagues have made, and I would just direct you to--from our 
Fish and Wildlife Service survey that we did. One of the 
questions is an open-ended essay question, and all of the 
responses from the scientists are on our website, and there are 
hundreds of them, and you will hear, you know, in their own 
words what you have heard echoed here.
    But I would also like to broaden it out somewhat because I 
believe that vulnerability exists wherever you have science-
based agencies. I believe that, in particular, you know, Fish 
and Wildlife is subject to this because it is a regulatory 
agency. It is what we are seeing at the Food and Drug 
Administration. It is what we are beginning to investigate at 
the Environmental Protection Agency, and so on.
    So I think there is special vulnerabilities when you have a 
science agency that is mixed with the regulatory function 
because when we look at some of the other purely science-based 
agencies, the National Science Foundation, a great deal of 
USGS, we are not seeing problems to this degree. So it isn't 
something that is inherent in a Federal scientist. It really 
has to do, I think, very much with that regulatory action.
    I would just close by saying that we have now surveyed or 
asked this question to nine different agencies, and we have 700 
scientists that have come back and said to us, ``I am afraid to 
talk about the mission-driven work of my agency for fear of 
retaliation.'' That is huge.
    Mr. Sarbanes. Those are very helpful answers.
    Mr. Chairman, I would just note, the last time I checked we 
were trying to recruit more people in math and science and 
technology in this country in order to compete, and obviously 
what we have heard described today is not helping us with that 
at all. Thank you.
    The Chairman. I thank the gentleman from Maryland.
    I recognize the gentlelady from California, Ms. Napolitano. 
Oh, I am sorry, I am sorry. Excuse me, excuse me. The gentleman 
from Washington, Mr. Inslee is recognized who has also been 
very patient and attentive all morning.
    Mr. Inslee. Thank you.
    Ms. Scarlett, my name is Jay Inslee. I represent part of 
the State of Washington. We care very strongly, my 
constituents, about the Evergreen State. We want the Federal 
government to follow the law in protection of our salmon, and 
our orcas and our owls and our murrelets, and the sad fact is 
that under your leadership, we have negligence, incompetence, 
and political hackery.
    I have to tell you that I am more upset after this hearing 
than I was beginning listening to this situation because a fish 
rots from hits head, and this Julie MacDonald situation is not 
some rogue employee that has run countercurrent to this 
administration and this leadership, and you have shown a 
stunning lack of awareness of that or willingness to deal with 
this situation, and I want to know about your involvement in 
these decisions.
    I am told that you are Julie MacDonald's supervisor, or at 
least in her management above her, is that correct?
    Ms. Scarlett. I am not her supervisor. I am as Deputy 
Secretary, of course, the number two in the department. She 
reports or she reported to the acting assistant secretary and/
or assistant secretary.
    Mr. Inslee. And were you the person who specifically 
refused to follow scientific information when you were on this 
``Washington Oversight Committee'' that overruled the 
scientists and the recovery team that worked assiduously to 
create an option for the Spotted Owl recovery plan, and you 
came back and told them that you didn't want them to have a 
recovery with designated territory for the owl? You wanted a 
different approach, and said that you should look at new 
science even though those scientists specifically told you that 
that science should not be perverted to be used to do exactly 
what you did. Was that you who did that?
    Ms. Scarlett. That is wildly incorrect. We have a recovery 
team, a recovery planning team that prepared a draft recovery 
plan for the Northern Spotted Owl. When we met with that team 
as they presented the draft to a group of us, and I was part of 
that, I did three things.
    First, I commended them on an outstanding report. I did 
suggest as they go through the draft that they might want to 
re-organize it a little bit for clarity and readability.
    Second, in the report they noted that the Bard Owl was a 
significant threat to the Northern Spotted Owl, and yet the 
recovery plan actually presented no information on how to 
address the Bard Owl, so we asked if there was any science or 
any method to perhaps include Bard Owl and address that issue.
    And the third thing that we did was to say, given that this 
is a very large landscape scale challenge, would it be 
possible, and it was a question, would it be possible to 
develop a second option--one option that was based on lines on 
a map for conservation areas and a second that would be based 
on performance rules and an adaptive management approach.
    They presented us with a final draft, which included both 
options, the original and that one. The science was absolutely 
unaltered and remained the same in both of them.
    Mr. Inslee. You were specifically told that the southern 
range information should not be used to eliminate the mapped 
owl recovery areas, and that is exactly what you suggested to 
be done, and in fact the option that was generated eliminated 
the owl recovery----
    Ms. Scarlett. Sir, that is inaccurate. That is simply 
inaccurate.
    Mr. Inslee. OK, well, let me ask you. Did the option two 
eliminate the mapped owl recovery areas? Just tell me. Did it 
or not?
    Ms. Scarlett. What option two does is to present using the 
exact same science in an adaptive management approach.
    Mr. Inslee. Listen. I am going to ask the question.
    Ms. Scarlett. So we have retained both options----
    Mr. Inslee. You will excuse me, but I will ask the 
questions.
    Ms. Scarlett. Yes.
    Mr. Inslee. We have a ceratin responsibility in this 
democracy and right now I will be asking them and you will be 
answering them.
    Ms. Scarlett. That is right, and I----
    Mr. Inslee. And my question is did option two eliminate the 
mapped owl recovery areas? Yes or no?
    Ms. Scarlett. Option two presents an adaptive management 
approach to addressing the recover of the Spotted Owl using the 
same science.
    Mr. Inslee. I am going to ask this question until I get an 
answer. Did the option two eliminate the mapped owl recovery 
areas? Let us get this over. It did, didn't it?
    Ms. Scarlett. Option two is an adaptive management 
approach.
    Mr. Inslee. It eliminated the mapped owl recovery areas, 
didn't it?
    Ms. Scarlett. It is an adaptive management approach.
    Mr. Inslee. And your answer is yes, isn't that, correct?
    Ms. Scarlett. Sir, these are management options. They are 
not about science. The science is the same in both of them. And 
so my answer to you, if you are asking about any change in 
science, there was no change in science. They read exactly the 
same.
    Mr. Inslee. Ma'am.
    Ms. Scarlett. One uses lines on a map for the management 
approach, and the other uses an adaptive management approach. 
This was agreed upon by the recovery plan team in full, and 
both options are in the recovery plan proposal on the street.
    Mr. Inslee. Ma'am, you have grossly undervalued my sense of 
persistence and patients. A mapped out recovery area is an area 
commonly defined in the English language and in biology--my dad 
was a biology teacher so I have some background--that basically 
gives a geographic protection of the range of the Spotted Owl. 
That is very important as the science have told you on repeated 
occasions.
    When the scientists in the recovery team came to you and 
suggested an option that retained those MOCAs, mapped owl 
recovery areas, you, as a political appointee without a science 
degree, came back and said that is not good enough for us. Send 
us an option that does not include mapped owl recovery areas, 
and I am going to ask you a really simple question, and there 
is no excuse not to answer this yes or no.
    Does option two include mapped owl recovery areas?
    Ms. Scarlett. Sir, option two is an adaptive management 
approach and no scientist at anytime came to us and said we 
absolutely needed the mapped approach. That is simply an 
inaccurate statement.
    Mr. Inslee. Ms. Scarlett, I was hopeful going into this 
hearing that this debacle at the Department under the 
leadership of the new Secretary of Interior that we would hope 
to reorient this agency to do the job for the American people. 
But your abject refusal to even recognize a simple fact that 
because of your political decision you asked scientists to come 
back with something that eliminated the principal protection--
let me finish.
    Ms. Scarlett. Sir, I did not do that.
    Mr. Inslee. No, excuse me.
    Ms. Scarlett. The premise is simply wrong, and I will not 
answer the question in that way.
    Mr. Inslee. Fine. Well, I am just telling you I am still 
hopeful that the Secretary can help clean up this agency, but I 
think it would be helpful to have your resignation because you 
refuse to recognize how sick this situation is, and your 
refusal to cooperate on this issue in a host of ways, including 
the simple recognition of what happened here, I think you ought 
to give serious consideration to turn this post to somebody 
else who can help re-orient this agency. The country deserves 
it. The new Secretary deserves it.
    Ms. Scarlett. Sir, I uphold science and its integrity as an 
absolute imperative. The premise of your question is simply 
inaccurate. Whatever that information was provided to you is 
not accurate.
    I was at no time told that the mapped recovery option is 
the only scientifically valid option, and incidently, I do have 
a letter from someone on the recovery team who is alleged to 
have made that comment, and who categorically refutes it.
    Mr. Inslee. I would have more. My time is expired.
    The Chairman. The gentlelady from California, Ms. 
Napolitano.
    Ms. Napolitano. Thank you, Mr. Chair.
    What I am hearing and what I have been listening to on the 
video conference is very, very distressing. The administration 
during the last several months, I believe it is Ms. Scarlett, 
de-listed the Virginia Northern Planes Squirrel, has de-listed 
the grizzly bear, and is talking about down listing the 
Manatee. Meanwhile, there are a number of other candidate 
species that are eligible for listing. It is growing. But there 
is no effort being made to list any of these.
    How are we going to recover endangered species if they are 
not listed? Some day the human being species may be on the 
endangered list.
    Ms. Scarlett. Let me say first that the decisions on the 
Grizzly and the other species that you mentioned are--since the 
matter here is a discussion of science--each of those species, 
according to the Fish and Wildlife Service and with no 
interjection or intervention from Washington, had determined 
that those species had met their recovery goal. According to 
the Act, therefore, they moved, and this has been a many, many, 
many year process in the making for several of those species, 
they moved toward proposing those de-listings.
    With the Manatee, that has not yet occurred. What has come 
out is a five-year status review of the Manatee. That is a 
science report, and that science report indicates that the 
trends for the Manatee show that it is not any longer in danger 
of extinction. But whether they act upon that to actually 
propose a de-listing or a down listing, I believe in the case 
in question, has not yet been undertaken.
    The Service does continue to list species, and it has a 
balancing act of doing the critical habitat designations, 
recovery planning. I am pleased to say they have accomplished 
by 2008 some 88 percent of all species listed more than two and 
a half years will have a recovery plan, and that is an 
extraordinarily important step in the protection of these 
species.
    Ms. Napolitano. Well, then I would pose the question to 
you, what happened to the Bull Trout? I am reading some of the 
testimony that he submitted for today's hearing. He is former 
Bull Trout coordinator of Fish and Wildlife Service and 
discussed the role the scientists played in providing peer 
review for the recovery plan, and a five-year status review for 
the Bull Trout. That was back in 2004.
    Ms. Scarlett. I am not familiar with the Bull Trout issue 
that you are describing in particular.
    Ms. Napolitano. I am sorry.
    Ms. Scarlett. We can get more information for you.
    Ms. Napolitano. OK, because I would like to have that 
writing because despite those efforts the recovery in the five-
year species review were never finalized, and I would like to 
have that in writing, Mr. Chair.
    And I certainly, listening to the gentlemen, I would hope 
that nothing ever deters a public servant from talking to a 
Member of Congress. I don't care if they call them a whistle 
blower. They need to help us protect our species, and help us 
be able to hold administrators accountable. That is the role we 
should be playing. There should be no deviation from that. That 
is law, and we should not deviate from that, and I would 
admonish any administrator that they should also keep in mind 
that they work for the general public. Although the 
administration may have appointed them, their responsibility is 
to the citizens and to those charges that they have been given.
    Thank you, Mr. Chair.
    The Chairman. Thank the gentlelady. The Chair has a 
housekeeping matter. We do have a series of votes on the House 
Floor currently underway. The Committee will stand in recess 
until 1:30, and would ask this panel, I know it has been a long 
morning and we appreciate your patience and responses, if you 
would come back at that time because there are a second round 
of questions from members that are not here now but they will 
return at that time to ask a second round of questions.
    [Recess.]
    Mr. DeFazio [presiding]. The Committee come back to order. 
Chairman Rahall will be back around 2 o'clock, and I will chair 
during the interim, so we will pick up where we left off. Are 
we on the Republican round or the Democratic round? Do you 
know?
    Mr. Sali. I think it is your turn.
    Mr. DeFazio. OK. All right, all right. Thank you.
    Mr. Sali. And then it is mine.
    Mr. DeFazio. Yes, I understand that. I was being fair there 
in asking. I left when Grace was asking questions.
    I would like to address some further questions to Ms. 
Scarlett. The oversight team which you chair, how do they each 
decisions? What sort of process do you follow? Is it consensus? 
Do you have votes? How do you do it?
    Ms. Scarlett. You are talking about the Northern Spotted 
Owl recovery team oversight group?
    Mr. DeFazio. Yes.
    Ms. Scarlett. OK, because that----
    Mr. DeFazio. Well, there is an oversight committee that has 
a list of people, Jim Case and Lynn Scarlett, David Verde, 
Julie MacDonald, Julie Jacobson, et cetera, et cetera, that I 
assume that is that group.
    Ms. Scarlett. Yes, and that group, just for clarification, 
is solely focused on the Northern Spotted Owl recovery plan.
    Mr. DeFazio. OK. Good.
    Ms. Scarlett. It is not a standing committee that does 
other things.
    Mr. DeFazio. OK.
    Ms. Scarlett. Basically, what it really is is a review team 
more than an oversight team I would characterize it as. There 
is a recovery planning team. That team includes many 
scientists, the Fish and Wildlife Service leads that team, but 
it also has representatives from the Forest Service, the Bureau 
of Land Management, and other entities. They worked out in the 
Northwest to develop a recovery plan for the Northern Spotted 
Owl. They brought in that recovery plan in draft form for the 
oversight team to review.
    One of the reasons that that review is so important----
    Mr. DeFazio. And that is the plan that was rejected and 
sent back, and when they asked for modifications?
    Ms. Scarlett. Well, let me clarify because it really was 
not rejected and sent back. It was an excellent plan in a draft 
form, which I verbally praised because it was an excellent 
plan, but there were, as I said earlier, three challenges to 
it.
    Mr. DeFazio. Right.
    Ms. Scarlett. On, in its structure it was difficult to 
read. It was organized in a kind of backwards way, so we 
suggested that when they go back and do the redraft they write 
it in a different order, same words, but different order.
    Mr. DeFazio. Sure.
    Ms. Scarlett. As I mentioned----
    Mr. DeFazio. I understand.
    Ms. Scarlett. OK.
    Mr. DeFazio. And at what point did you ask for option two 
to be developed?
    Ms. Scarlett. So at that meeting in which we had the Forest 
Service and the Bureau of Land Management and others reviewing 
the option one, I believe it might have been the Forest Service 
that asked the team or the two representatives who were there 
presenting it, they asked them--you have presented a plan that 
actually draws lines on a map for the recovery areas. Is there 
a way to do this differently? Are there other options?
    And the team said this is just one option. There are other 
ways to go about doing this recovery.
    Mr. DeFazio. The team of scientists in the Northwest by 
consensus said that they thought there were other options 
available?
    Ms. Scarlett. The individuals, the two individuals that 
were representing the team at that meeting.
    Mr. DeFazio. So two individuals who were representing that 
team made that recommendation. OK.
    So when you asked for development of the second option, see 
how accurate you think this is. This is from a chronology 
provided by the Audubon Society, and they say, October 26-27, 
full team met. ``Mr. Lohoefner admitted Forest Service, BLM, 
were driving the recovery plan revisions demanded by the 
oversight committee,'' which is consistent with what you just 
said, ``and stated that the end product would have to be 
flexible enough to be acceptable to the Forest Service and 
BLM.''
    Is that correct? I mean, that is sort of what you are 
saying, that they wanted that.
    Ms. Scarlett. I can't speak to the conversation that Rhen 
might have had.
    Mr. DeFazio. Right.
    Ms. Scarlett. All I know is what we discussed at the 
meeting that I attended. I can't speak to conversations that 
Rhen or others had subsequent to that.
    Mr. DeFazio. Sure. But prior to that, on October 19, there 
was an e-mail from the Pacific Region office that said, ``The 
team will no longer make decisions by consensus.'' Is that 
correct?
    Ms. Scarlett. I don't know. I don't recall.
    Mr. DeFazio. OK. But it seems like you usurped their 
decisionmaking process. Then we had two members of the team in 
Washington who agreed to be driven by the Forest Service and/or 
BLM at some level. We are not certain which.
    Then it went on to say, and to quote, ``Ensure we are 
exploring the options described by the decisionmakers.'' That 
would be the oversight team, is that correct, the 
decisionmakers?
    Ms. Scarlett. I would assume they are referencing the----
    Mr. DeFazio. Yes. Well, this is not an official Wildlife 
Service memo. Maybe you are not particularly familiar with 
that, but it seems like that would probably refer to the 
oversight, the oversight team.
    Now, the oversight team, it seems, got a little later on a 
bit more prescriptive about what they wanted in option two, 
which was in fact e-mails that came, and I believe one of them 
was, and I have moved places here so all my voluminous papers 
are--here we go.
    ``We just received new direction from Lynn Scarlett, Deputy 
Secretary of the Interior, concerning the NSO recovery plan.'' 
We are now into early January. It says, ``Both options are due 
in Washington by February 5. These options are to address the 
recent direction we received from D.C. Two Word files are 
attached below.''
    And it is very specific about de-linking option one, and I 
mean, there is very many prescriptive sorts of things. So you 
are saying this was generated locally by the scientists and at 
the direction or, or just sort of the inquiry about a little 
more flexibility for Forest, but this is awfully prescriptive. 
There is actually five major points here about how you would 
develop option two, which are very prescriptive.
    Do you remember that?
    Ms. Scarlett. I do not, and as a matter of fact, the 
meeting that I attended we did not give prescriptions. Again, 
we simply said is there a way to do another option. We think it 
is good policymaking on something this complex to be able to 
have several options to consider, all of which used the same 
science and are focused on recovery.
    That particular memo may be somebody's notes or----
    Mr. DeFazio. Mr. Wesley, and it has dates and, you know, 
all the facts.
    Ms. Scarlett. I don't know what they are but I certainly 
never gave any five-point directive or seven-point directive or 
whatever it is.
    Mr. DeFazio. OK. But now that essentially option two has 
become the preferred alternative of the oversight group, how 
did you reach the determination? Was that again by consensus or 
vote or did it just sort of come out?
    Ms. Scarlett. I don't know that that is correct. I believe 
that the recovery plan that is out for review, the proposed 
recovery plan puts both options forward.
    Mr. DeFazio. OK. So then you are not favoring option two at 
this point in time? They are both out for discussion?
    Ms. Scarlett. I believe they are both out for discussion.
    Mr. DeFazio. OK. What science was used--we have talked a 
lot about science to develop option two, because there are--it 
says here, and this is another memo, this is earlier--sorry to 
jump around. This is dated October 18, and this was after the 
first discussion in Washington about maybe having some more 
flexibility and asking that the draft be somewhat revised.
    And point 1[a] is emphasized, ``The new science indicating 
habitat variability across the range and de-emphasize the 
past.''
    Ms. Scarlett. Let me clarify again. The science for both 
options, both the MOCA option, the mapped owl conservation area 
option, and option two utilize the same science, but that 
science that you are referencing pertains to there had been an 
earlier perspective that owls favored only old growth forest 
areas.
    Some more recent science suggests that that picture is much 
more complex.
    Mr. DeFazio. And so the recent science would be then 
references to the Olsen study, and the Franklin study, is that 
correct?
    Ms. Scarlett. I don't know, sir.
    Mr. DeFazio. OK. Well, those seem to be what is being 
relied upon here since they are the only two studies extant 
recently in the literature which questioned the range and 
viability.
    Ms. Scarlett. And they were relied upon, by the way, for 
both options. I want to underscore that.
    Mr. DeFazio. Well, that is unfortunate because the author 
of the Olsen study says, and it says actually within the 
published version, ``We do not recommend that the forest 
managers use our modeling results as a prescription for 
managing habitat either within the Oregon coast range or 
elsewhere until similar studies have been conducted. Likewise, 
the small amount of variability in fitness parameters 
attributable to habitat variables in our models should not be 
used to argue that habitat has little influence on owl 
demography.''
    So I guess maybe we relied more on the second one from Mr. 
Franklin since that one says don't use this to change anything.
    Ms. Scarlett. Sir. Sir, the recovery planning team utilized 
the science that it had available, the best available science.
    Mr. DeFazio. OK. So your review group just sort of 
cursory----
    Ms. Scarlett. We did not----
    Mr. DeFazio.--and you didn't really review these things----
    Ms. Scarlett. We did not----
    Mr. DeFazio.--and you don't understand the underlying 
science.
    Ms. Scarlett. Sir, we did not question the science that was 
presented to us.
    Mr. DeFazio. OK, but if this is accurate.
    Ms. Scarlett. The report----
    Mr. DeFazio. If that is the science that was used and the 
scientist who created it said that, do you think you should 
base a plan on it?
    Ms. Scarlett. The plan, it is my understanding in my 
discussions with the Fish and Wildlife Service, is not based on 
a single scientific study.
    Mr. DeFazio. OK. No, we have a second one. Here we go.
    Ms. Scarlett. But rather----
    Mr. DeFazio. Mr. Franklin is the only other--Allen 
Franklin--the only other study extant which questions this 
same, the habitat, and he says in a letter, as he and his co-
authors have repeatedly noted, their data is just a first 
approximation and ``in itself should not be considered 
definitive.''
    So the science on which option two is based, the authors of 
the science say it shouldn't be based there, but you are saying 
that we had spontaneous movement in this direction, just a 
couple members of the team showed up and the Forest Service----
    Ms. Scarlett. No.
    Mr. DeFazio.--and BLM, and it was not directed by you or 
anybody else on this oversight team that this option be 
developed, that you follow this new science, and all that it is 
just sort of a coincidence we ended up here.
    Ms. Scarlett. No, sir, that is not what I am saying. What I 
am saying is that there is science on the Spotted Owl and the 
kind of habitat it needs, and the kind of threats that it has. 
The recovery planning team looks at the composite of that 
information.
    Mr. DeFazio. OK, what does your group do in terms of 
looking at the work of that team?
    Ms. Scarlett. And then that group wrote a draft recovery 
plan. That plan----
    Mr. DeFazio. We are repeating ourselves. We are up to the 
current----
    Ms. Scarlett. If you would like to understand the process, 
I am trying to go through it.
    Mr. DeFazio. OK.
    Ms. Scarlett. Because it was really fairly straightforward.
    Mr. DeFazio. Very.
    Ms. Scarlett. The material comes in. We look at it. It 
looked good. It looked as though it was going to be at least a 
way from a land management standpoint to try to achieve 
recovery goals. But because we are talking about a large 
landscape scale, because we also were told, including in the 
recovery plan science information itself, that this was a 
dynamic situation, and that they were learning more about the 
bird, we asked in light of that whether it would be prudent to 
have an adaptive management approach.
    Those at the table said we can go back to the group and see 
so that----
    Mr. DeFazio. Who were those at the table? Which two members 
of the team?
    Ms. Scarlett. I don't recall.
    Mr. DeFazio. OK.
    Ms. Scarlett. It was the Fish and Wildlife Service, the 
lead----
    Mr. DeFazio. It would be useful for you to provide those 
names to the Committee.
    Ms. Scarlett. We could provide that.
    Mr. DeFazio. Thank you.
    Ms. Scarlett. And those individuals said we can explore 
this. We will go back to the recovery planning team. They did 
and the recovery----
    Mr. DeFazio. And are you aware that the team by consensus, 
which was no longer allowed having adopted the further one, was 
not very happy with this directive?
    Ms. Scarlett. I don't know their disposition. I did not 
speak to them directly, but what I am told is that they rolled 
up their sleeves and they developed a second option, and I am 
told that at least at the point in time at which it was 
advanced to us that there had been consensus on that option.
    Again, remembering that like the NEPA process where we ask 
ourselves for good management decisions to have options, this 
was about giving us some choices to reflect on, and the public 
because both options are out for public review.
    Mr. DeFazio. Sure. This has nothing to do with the desire 
of the agencies to target the last remaining old growth in 
Pacific Northwest and a desire of those agencies to pick up the 
harvest by targeting those areas. Nothing at all.
    Ms. Scarlett. I believe----
    Mr. DeFazio. This is all about the owl and its recovery and 
the ecosystem.
    Ms. Scarlett. I believe the agencies in question who have 
large areas of land to manage up there were looking for 
recovery planning options that would give them some guidance 
and ability to help both fulfill their mission and at the same 
time----
    Mr. DeFazio. Well, unfortunately, there is also a legal 
mission that is required.
    Ms. Scarlett.--recover the----
    Mr. DeFazio. And I am afraid you are going to be tested 
legally if you pursue option two, and I think you would be 
found wanting and we will be back right where we were with Cy 
Jamison in Bush one which is under injunction and losing what 
little timber harvest we have left.
    Thank you. My time has expired.
    Mr. Sali.
    Mr. Sali. Thank you, Mr. Chairman.
    Ms. Scarlett, I just want to state for the record that I 
appreciate your effort to respond today in spite of being cut 
off repeatedly, in spite of being, I think, really demeaned 
today, and I want you to know I appreciate your service to the 
country, and the difficult job that you have.
    Ms. Scarlett. Thank you.
    Mr. Sali. Ms. Clark, do you believe that science is the 
factor that should drive all determinations for a listing?
    Ms. Clark. I think, Congressman, that science is the 
foundation upon which decisions are made, and by law the 
decision on whether or not to add a species to the list is by 
law made on the best available science.
    Mr. Sali. And that should be our sole criteria for a 
listing?
    Ms. Clark. For determining whether or not a species should 
be afforded legal protection, it is science.
    Mr. Sali. And do you think the same thing is true for 
designation of critical habitat?
    Ms. Clark. Well, by law, designation of critical habitat is 
based on the best available science, and scientific and 
economic considerations, and so that is a part of the law where 
economics, the economic impacts and benefits are weighed as 
well.
    Mr. Sali. And so we shouldn't just use science when we are 
making a determination for critical habitat for a listed 
species, is that correct?
    Ms. Clark. Oh, current law suggests otherwise. Current law 
allows for both science and the economics to be factored in.
    Mr. Sali. And when the agency is carrying out a five-year 
species review, should science, best available science be the 
sole standard that we make those determinations by, whether 
there should be a change or not?
    Ms. Clark. When determining whether a species is endangered 
or threatened, science should be the dominant factor.
    Mr. Sali. I am asking about the five-year species review 
that the agency is required to----
    Ms. Clark. Well, the five-year species review is to 
determine status. Is an endangered species still endangered?
    Mr. Sali. Right.
    Ms. Clark. Should it be threatened? That, sir, is a 
scientific underpinning because it is the status of the species 
that is being evaluated.
    Mr. Sali. And Dr. Grifo, do you agree with the comments 
that Ms. Clark just made?
    Ms. Grifo. I do.
    Mr. Sali. So that best available science should be the sole 
factor for listing. Do you agree with that?
    Ms. Grifo. That is the law.
    Mr. Sali. And you believe that for designation of critical 
habitat it is best available science and economic 
considerations I think----
    Ms. Grifo. That is the legislative framework we have, and I 
think that underscores why it is so important that we get the 
best available science, and have that, because it is so 
important in making these decisions.
    Mr. Sali. And best available science should drive the 
species review whether to continue a listing in its then 
current form or change it to some other designations. You agree 
with that?
    Ms. Grifo. I would agree with Jamie Clark, yes.
    Mr. Sali. And so for both of you, I guess I am asking, do 
you think we ought to just follow part of the law or all of the 
law?
    Ms. Clark. Do you think we should just? I didn't hear.
    Mr. Sali. Should the Fish and Wildlife Service be required 
to follow all of the law or just part of the law, or can we 
just pick and choose what we want to follow?
    Ms. Clark. Well, it never occurred to me that agencies 
could pick and choose what part of Federal law they would want 
to follow, sir. So my assumption is that the Fish and Wildlife 
Service would follow all the laws that they are charged with 
overseeing.
    Mr. Sali. Well, I am looking at 16 U.S.C. 1531[b] which 
deals with the listing decision, and it requires, and I am 
quoting from the statute, the determination be made ``solely on 
the basis of the best science and commercial data available.''
    Commercial data, does that indicate to you that there is 
some economic impact in the listing decision or not?
    Ms. Clark. It does not actually. The commercial data part 
of that, I believe, was intended to take into account 
international commerce, trade, and things like that. It was 
never to bring into account the economic impacts of----
    Mr. Sali. You would agree that that is not best available 
science though when we start talking about those areas, 
correct?
    Ms. Clark. Well, it affects the status of the species. 
Absolutely, I would agree that it does that.
    Mr. Sali. And so it would be correct----
    Ms. Clark. The trade in the species, the commercial impacts 
of utilization of the species, that is the kind of commercial--
--
    Mr. Sali. It would be correct to say--I am sorry. It would 
be correct to say that best available science is not the sole 
driving consideration under a listing decision because the law 
requires inclusion of commercial data available in making and 
conducting that decision, correct?
    Ms. Grifo. The other part of that is that, you know, for 
many species the science is part of that commercial data. I 
mean, that commercial data is often based on a scientific 
process, and I think, you know, the source is not nearly as 
important as making sure that we have a direct conduit----
    Mr. Sali. I want to make sure----
    Ms. Grifo.--from the suppliers to the process.
    Mr. Sali. OK, on that point I want to make sure I 
understand. You are saying that that trade between countries is 
a scientific determination.
    Ms. Grifo. No. What I am saying is that in certain 
instances commercial data may also be related to scientific 
information. Fisheries, for example, a lot of the information 
that we have on fisheries is very well collected under a 
commercial framework. That is all we are saying, and that in 
many instances----
    Mr. Sali. Wouldn't that be scientific information though at 
that level?
    Ms. Grifo. Well, if it is peer reviewed, if it goes through 
a scientific process. You know, there are other determinants of 
what is science. If it is evidence-driven, if it----
    Mr. Sali. Other determinants. So you would be changing your 
testimony about----
    Ms. Grifo. No.
    Mr. Sali.--best available science?
    Ms. Grifo. If it is evidence-driven, you know, it becomes 
part of a scientific process.
    Mr. Sali. Well, is it science or is it commercial data?
    Ms. Grifo. In some instances, it could be both, and that is 
not a detriment to the science nor is that a detriment to the 
commercial data. It is simply an instance in which population 
information is sometimes based on fisheries' data on catches.
    Mr. DeFazio. So your testimony is that----
    Ms. Grifo. But traditionally in the Act----
    Mr. DeFazio.--commercial data is science?
    Ms. Grifo. No, that is not what I have said. Let me be 
clear. We can talk about a definition of science and what is a 
scientific process and what is not a scientific process, and 
then we can take that framework and we can look at what comes 
in from commercial sources, and we can evaluate through a 
scientific process, through an evidence-driven process whether 
that is appropriate information to take into account. That is 
all I am saying.
    Mr. Sali. Should commercial data, as required by the 
statute, be included in the listing decision that is not 
scientific data?
    Ms. Clark. It hasn't thus far. I mean, I am not sure I am 
following your question, Congressman. But the clause, the 
listing criteria, the clause that we are talking about, the 
link of the commercial data is to the science status of the 
species, and that science process that informs the decision. 
They aren't independent issues that are weighed.
    Mr. DeFazio. Well, do you believe that science or 
commercial data?
    Ms. Clark. I believe that commercial----
    Mr. DeFazio. The information you are talking about that 
should be considered.
    Ms. Clark. It all relates to the status. Science which can 
subsume the commercial information is what informs the decision 
on status of a species.
    Mr. Sali. Do I understand your testimony then to be that 
notion of commercial data is just surplusage in the language of 
the statute?
    Ms. Clark. No, not at all. I would agree 100 percent with 
Dr. Grifo's recitation of the fisheries instance, for example.
    Mr. Sali. Well, let me approach this just a little 
differently here. When you were hired by the Defenders of 
Wildlife, do you believe that that organization took your 
political views into account in making that decision?
    Ms. Clark. That was never a part of my interview. No, I 
don't believe that they did.
    Mr. Sali. Do you think it is very likely that Ms. Scarlett 
would be hired ever by the Defenders of Wildlife?
    Ms. Clark. I wouldn't suggest one way or the other. I would 
certainly--I am not the hiring official, but certainly I 
believe that Secretary Scarlett could--I would love for her to 
apply. I mean, you know, that would be fine.
    What is important to people----
    Ms. Scarlett. I might be looking for a job after this 
meeting.
    Ms. Clark. That is right.
    [Laughter.]
    Ms. Clark. That is right. What is important to Defenders of 
Wildlife, if we want to talk about my organization, is a 
commitment and a passion to conserve wild plants and animals in 
their natural communities.
    Mr. Sali. Do you think there is a political dynamic in this 
hearing today?
    I mean, it seems like the people on this side of the 
benches tend to agree more maybe with the work that Ms. 
Scarlett has done, and the folks on that side tend to agree 
with the points that you are trying to bring.
    Do you think there is a political element in this hearing 
today?
    Ms. Clark. Well, actually, Congressman, what is interesting 
for me is it seems like it is not much difference in that in 
previous congresses it was just literally flipped.
    Mr. Sali. And so the politics--I guess my point is this. 
You represent, and Dr. Grifo, I would be happy to hear your 
comments on this as well, you represent nonprofit organizations 
that in my view pretty clearly have a political bent, and your 
testimony before us is that we are encouraged to believe 
essentially your position, and not trust what the Fish and 
Wildlife Service has been doing, and so I am wondering if it is 
OK for politics to be a part of your organization, and for you 
to come and advocate certain things in front of this Committee, 
but it is not OK for the government agencies to have anything 
political as a part of their work on the Endangered Species 
Act.
    Why is it we should take your testimony as the gospel truth 
and follow everything you suggest, and not listen to the 
agency? Why is it OK for there to be politics involved in your 
opinions but not in the government agency?
    Mr. DeFazio. I am going to suggest that you want to hold 
that thought because I went over by six minutes, the 
gentleman's----
    Mr. Sali. Mr. Chairman, I want to point out that you went 
over by five minutes your first turn, and by nine minutes your 
second.
    Mr. DeFazio. Nine?
    Mr. Sali. Yes.
    Mr. DeFazio. OK, we will give you--OK, I thought it was 
six. I must have gotten it upside down. Let us hear the answer, 
please.
    Ms. Clark. I will give you a couple of answers to that.
    First, yes, I am representing proudly Defenders of 
Wildlife, but I am also representing a 20-year career in the 
Federal government, including a big chunk of time as both a 
career biologist and as director of the Fish and Wildlife 
Service. So I believe I come with more than just my Defenders 
of Wildlife knowledge.
    Yes, I think it is a huge disappointment that we have 
reduced the importance of a law like the Endangered Species Act 
to a political debate. This is not about making ``political 
decisions'' based on a science framework. Administration after 
administration has the opportunity to do that. Some get caught. 
Some go through the gauntlet.
    What we are talking about is if in fact the science 
underpinning by which political appointees make decisions has 
been tinkered with or disrupted to change the foundation. That 
is what I presumed this hearing was about. It is not to suggest 
that political appointees of either party can't make a 
decision.
    Mr. Sali. And Ms. Clark, I appreciate the comment that you 
just made because I do believe that this whole area is just 
riff with really partisanship and I want to state for the 
record that I do believe that the work of protecting species is 
important work. You know, whether we get into a debate about 
the law, whether we have commercial data or best available 
science as a standard, you know, is that really getting the job 
done, and I am not sure that it is.
    I hope you will excuse me today for, I think, what were 
some fairly pointed questions. My intent was to get to this 
notion that politics does seem to be driving this, and I am 
going to suggest on both sides of the aisle, and in the 
meantime the species that we all, I think, are hoping to 
protect are not getting the benefit of the best work that we 
can give them. Thank you.
    Mr. DeFazio. I thank the gentleman.
    Ms. Grifo. Could I respond?
    Mr. DeFazio. Who is that? We are way over, but just go 
ahead.
    Ms. Grifo. Very quickly. Very, very quickly.
    I mean, I think that we can agree absolutely that obeying 
the law as written is not a partisan issue. I think we can 
agree that valuing the science is not a partisan issue. I mean, 
these are things, these are values that I think pervade, you 
know, both sides of the aisle, and very importantly.
    But I think the important thing here is that, you know, 
what we are bringing forward is not our word. You know, you 
don't have to believe us. It is the documented examples of 
things like, you know, tract changes where the science is 
changed. I mean, that is clearly a partisan issue, and together 
we should agree that fixing that and making sure that that does 
not happen, because we all value the science, is an issue that 
is truly nonpartisan. Thank you.
    Mr. DeFazio. Thank you. Mr. Inslee.
    Mr. Inslee. Thank you.
    Ms. Scarlett, you have interjected some levity but I have 
to return to a real serious issue. First, I want to ask you 
what does MOCA mean in this context?
    Ms. Scarlett. Mapped owl conservation area.
    Mr. Inslee. Has that ever been changed to managed owl 
conservation area?
    Ms. Scarlett. Yes.
    Mr. Inslee. And in October 18, 2006, what was the 
definition of MOCA?
    Ms. Scarlett. Say that again.
    Mr. Inslee. In October 18, 2006, what was the definition of 
MOCA?
    Ms. Scarlett. Sir, I don't know if there was a different--
if that acronym was used with a different set of words at that 
time.
    Mr. Inslee. Well, it is either mapped or managed owl 
conservation areas, right, one of the two?
    Ms. Scarlett. That is my recollection.
    Mr. Inslee. And it is specifically designated geographic 
areas for the protection of Spotted Owls, right?
    Ms. Scarlett. As used in the context of the recovery 
planning process, yes.
    Mr. Inslee. Now, I had asked you earlier if your committee 
which you chair required the planning teams regionally to 
present to you an option that eliminated the MOCA concept. As 
best I could tell, you hadn't.
    I want to refer you to a memo dated October 18, 2006, 
titled ``Northern Spotted Owl Recovery Plan Options''. Have you 
seen that document before that is before you?
    Ms. Scarlett. I am looking at it right now, I think.
    Mr. Inslee. I have been told that it is a memo generated by 
your committee and sent back to the region to basically 
encapsulate your direction to them from your committee, from 
this Washington Recovery Committee. Is that what that is?
    Ms. Scarlett. I believe what this might be is a summary. It 
was not generated by me, but I believe subsequent to the 
meeting one of the members of the committee tried to summarize 
and capture what the discussion was, so I think it is better 
characterized not so much as a direction as it was a summary of 
what was the conversation on next steps.
    Mr. Inslee. Well, it says, ``The recovery team will develop 
two options that tier off the existing draft recovery plan,'' 
and then it has further information.
    Ms. Scarlett. That is correct, and that was a summary of 
the conclusion of the meeting.
    Mr. Inslee. And on page two, I refer you to paragraph two, 
which is option two as I understand. It says, ``Provincial 
habitat targets,'' and then it has bullets, and if you read 
along with me, it says, ``Eliminate the MOCA concept and 
instead establish provincial habitat target.''
    Do you agree that is what it says?
    Ms. Scarlett. I agree that is what it says.
    Mr. Inslee. And wouldn't you agree that this memo, which 
appears to be the summary of what you did, called for 
eliminating the MOCA concept?
    Ms. Scarlett. No, I do not agree to that statement because 
we did not conclude that we would eliminate the concept. What 
we asked for was option one, which retained that concept, and 
then adding to that option two so that we would have two 
options to consider.
    Mr. Inslee. And you ordered them to come up with an option 
two that eliminated the MOCA concept, didn't you?
    Ms. Scarlett. We asked them to come up with a concept that 
utilized adaptive management, sir, based on the same science 
foundation. If the issue today is the interference or changing 
of science, the science foundation, for anyone that reads both 
options, reads exactly the same.
    As managers and as the discussion that Mr. Sali just 
presented indicated, it is incumbent upon us to try and figure 
out what are the best management options to achieve recovery 
goals. We put forth--we asked the team to come up with two, the 
one they had originally come up with, and an alternative so 
that we could consider both, and that is what has been done.
    Mr. Inslee. Ma'am, I have given you every chance in the 
world to honestly answer this question.
    Ms. Scarlett. And that is an honest answer.
    Mr. Inslee. Every chance in the world, including the 
memorandum from your own committee saying what you did. I am 
just telling----
    Ms. Scarlett. Sir, that is an honest answer because if you 
look at this document, it includes option one, which still has 
the MOCAs, and therefore I am not going to sit before you and 
answer that we asked for the elimination of it.
    Mr. Inslee. I am going to ask you one more time. Did you 
not ask for option two that would require the elimination of 
the MOCA concept, and that is the language of the memo? Did you 
not do that?
    Ms. Scarlett. We asked for an option that did not use the 
MOCA concept.
    Mr. Inslee. Thank you. We could have saved 20 minutes if 
you had answered that question.
    Ms. Scarlett. No, sir, if I may.
    Mr. Inslee. Let me ask you one more question here. The 
Endangered Species Act, I assume you believe it gives the 
administration the authority to look at issues of habitat 
destruction and how that habitat has been destroyed, including 
cutting down old growth forests, is that correct?
    Ms. Scarlett. Could you repeat that again?
    Mr. Inslee. I am sorry. The Endangered Species Act gives 
the authority to the agency to consider issues of habitat 
destruction, including looking at reasons why habitat is being 
destroyed and how the Federal government can consider their 
preservation?
    Ms. Scarlett. Absolutely the Act takes into account habitat 
modification and its impacts on species.
    Mr. Inslee. And including how that habitat is being 
destroyed, correct? Like if you cut down the old growth, that 
is a thing to be concerned about.
    Ms. Scarlett. The Act includes consideration of any changes 
in the habitat that might affect the species.
    Mr. Inslee. OK. Then why is the agency taking such a short-
sighted approach on Polar Bears and global warming? I want to 
read from a document dated December 27, 2006, for immediate 
release. It says, ``Interior Secretary Kempthorne announces a 
proposal to list Polar Bears as threatened under Endangered 
Species Act,'' and it says on page two, ``While the proposal to 
list the species is threatened cites the threat of receding sea 
ice, it does not include a scientific analysis of the causes of 
climate change. That analysis is beyond the scope of the 
Endangered Species Act review process which focuses on 
information about the Polar Bear and its habitat conditions, 
including sea ice.''
    Now, the fact of the matter is, is that global warming is 
causing the melting of the Arctic ice. The Polar Bear survival 
as a species is dependent upon the existence of that Arctic 
ice. Your administration under your leadership refuses to 
consider the human activities that are at least in part 
responsible for melting of the habitat that keeps these bears 
alive.
    Now, you just got done telling me that it is part of your 
job to look at habitat destruction and the reasons for that 
habitat destruction, and your refusal to look at the reasons 
why the Arctic ice is melting would be just as glaringly 
incompetent as refusals to look at clear cutting the old growth 
for Spotted Owls.
    Now, the fact of the matter is your administration under 
your leadership is refusing to consider the reason for the 
habitat destruction that could lead to the extinction of Polar 
Bears, isn't that correct?
    Ms. Scarlett. No, that is certainly not correct, sir. Since 
2001, President Bush has affirmed that climate change is 
occurring, and that there are anthropogenic or human-caused 
reasons for that.
    I currently chair a climate change committee in the 
Department of the Interior with some 60 plus participants, 
including many U.S. Geological Survey scientists. We are 
looking at its impacts across the lands and waters that we 
manage.
    In the instance that you cite with respect to the Polar 
Bear, the entire focus of that proposed listing was indeed the 
change in habitat, the sea ice melting. The reason for the 
particular language that you cite there is that the Fish and 
Wildlife Service comprises biologists. Therefore, their 
scientific expertise is biology. They were able to import 
information about sea ice and sea ice melting, but they did not 
feel that they were competent to judge or write about the 
causes of climate change. That we look to our U.S. Geological 
Survey and many other bodies, the Intergovernmental Panel on 
Climate Change----
    Mr. Inslee. That is correct, and your approach is 
magnificently short-sighted because you do have the authority 
under this Act to have those other agencies of the government 
look at the causes of climate change and the reasons why the 
Arctic is melting, and you are sitting there telling me we 
can't use taxpayer dollars to find out why the climate change 
is occurring----
    Ms. Scarlett. Sir, we are doing that.
    Mr. Inslee.--under this--well, excuse me. Then I guess you 
are----
    Ms. Scarlett. We are absolutely doing that but in----
    Mr. Inslee. You are telling me this document then that came 
out of Secretary Kempthorne's office dated December 27, 2006, 
is a bunch of hooey, is that what you are telling us?
    Ms. Scarlett. No. What I am saying to you is that in the 
context of the Endangered Species Act, the Act directs the Fish 
and Wildlife Service to look at five factors that might affect 
species, one of which is habitat.
    So in the context of their proposed listing, they looked at 
habitat and they did write up significant comments with respect 
to sea ice, and the sea ice trends. But in the context of ESA, 
that is the limitation of what their charge is.
    Their charge is not in that document to turn around and re-
do the Intergovernmental Panel on Climate Change report, but 
the administration and the Department are very actively engaged 
in that. In fact, we have frequent presentations by our U.S. 
Geological Survey people reporting on their science as it 
relates to that issue.
    Mr. Inslee. I will just ask one more crack at this and then 
I will----
    Mr. DeFazio. Excellent.
    Mr. Inslee.--be finished. Thank you, Mr. Chair, for your 
indulgence.
    Do you agree or disagree with this document that came out 
of the Secretary's office that said that a scientific analysis 
of the causes of climate change is beyond the scope of the 
Endangered Species Act? Do you agree or disagree with that 
statement?
    Ms. Scarlett. I agree that that is an accurate statement. 
The focus of the ESA is on the habitat and the document clearly 
cites the change in habitat, including sea ice melting. It is 
not a forum for talking about larger climatology and 
atmospheric chemistry. There are places for that, and we are 
engaged in those efforts.
    Mr. Inslee. I wish it was so, and thank you. You have given 
me two answers to the same question. Thank you very much.
    Mr. DeFazio. I thank the gentleman. If the gentleman can 
stay for a few moments.
    Mr. Inslee. Briefly.
    Mr. DeFazio. Well, Mr. Rahall is supposed to be here too, 
and I have 10 constituents waiting in my office. I am wondering 
if you would take the Chair, but let me just do some quick 
business.
    I have a unanimous consent request for a statement from 
Representative Saxton, a letter directed to Secretary 
Kempthorne from Wayne Gilchrest and Mr. Saxton, a statement by 
the Ranking Member Don Young, testimony by Robert Hallock, 
former Fish and Wildlife employee, and a statement by the 
Wildlife Society regarding the final TWS position statement on 
the Endangered Species Act, and without objection we will enter 
those into the record.
    [The information follows:]

  Statement of The Honorable Jim Saxton, a Representative in Congress 
                      from the State of New Jersey

    The Endangered Species Act is often called the ``crown jewel'' of 
our nation's environmental laws because it is the only environmental 
statute that aims to protect both threatened and endangered species and 
the habitats on which they depend. The ESA has been a remarkably 
successful statute. It has saved many species from extinction and 
helped to restore such iconic wildlife as the gray wolf and bald eagle 
across much of their historic range.
    Congress remains committed to the goal of protecting endangered 
species for future generations of Americans, and it is important that 
the Administration and Congress work together to ensure that any 
changes in the way the Act is implemented be accomplished in the open 
and with full opportunity for public vetting. I have expressed my 
concerns over reports that the Administration is considering 
overhauling the Act through regulatory and policy changes. Congressman 
Gilchrist and I sent a letter to Secretary Kempthorne on April 18, 
2007, regarding some troubling administrative policy changes to the ESA 
that were reported in the media, and I will submit that letter here for 
the record as well.
    I want to reiterate my opposition to any attempt to rewrite the ESA 
administratively, especially if those changes might weaken in any way 
the critical safety net that the ESA represents for species and 
habitat. While I am, of course, open to suggestions to improve 
implementation of the Act on the ground and strengthen its ability to 
recover species, any broad changes to the ESA should have full 
deliberation in Congress.
    I look forward to this hearing and to future dialogues over how we 
can best fulfill the promise of the ESA and protect America's wildlife 
heritage.
                                 ______
                                 
    [The letter to DOI Secretary Kempthorne submitted for the 
record by Mr. Saxton follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [The statement submitted for the record by The 
Honorable Don Young follows:]

       Statement of The Honorable Don Young, Ranking Republican, 
                     Committee on Natural Resources

    Mr. Chairman, I want to compliment you for holding this hearing. I 
am one of only nine members of the current House of Representatives who 
voted for the Endangered Species Act in 1973.
    I supported that Act because I felt then, as I do now, that we have 
a responsibility to help conserve and restore wildlife species. It is 
for this reason why I have sponsored, co-sponsored and voted for 
efforts to protect a diverse group of species including elephants, 
rhinoceros, tigers, Great Apes, neotropical migratory birds and marine 
turtles.
    Having said that, I can assure everyone within the sound of my 
voice that no one who voted for this legislation ever envisioned that 
this Act would be used to smash the dreams of millions of Americans.
    Our forefathers who sacrificed everything for our freedom would be 
shocked to learn that Americans are unable to fully utilize their 
property because of a blind salamander, fairy shrimp, fountain daters, 
ground beetles and kangaroo rats.
    In fact, there are 2,489 domestic and foreign species listed under 
the Endangered Species Act. The Fish and Wildlife Service has designed 
critical habitat for 487 species. Yet, despite spending billions of 
dollars, designating millions of acres of critical habitat and 
disturbing the lives of millions of property owners who must, in some 
cases, pay extortion fees to develop their land, only 8 domestic 
species have ever been ``recovered'' in more than 30 years.
    There is no question that politics and not the Department of the 
Interior are running the Endangered Species Act. It has been hijacked 
by misguided federal judges and radical environmental organizations 
whose sole interest is not to recover species but to gouge themselves 
on taxpayer money. The Fish and Wildlife Service has not initiated a 
listing decision on its own since 1995. Instead of recovering species, 
the Service must spend its merger dollars preparing and defending 
themselves against an endless barrage of lawsuits. It has gotten so bad 
that the Service has now hired a full-time attorney that does nothing 
except monitor the legal filings against the agency.
    This is not a new problem. It started in the Clinton Administration 
and has continued unabated in the Bush Administration. Organizations, 
like the Center for Biological Diversity, know they can go to federal 
court and sue the agency over a listing or critical habitat 
designation. They know they will win, they will be handsomely 
compensated for suing and they can then hire more lawyers to file or 
threaten to file more lawsuits. Meanwhile, species continue to languish 
on the Endangered Species Act with little, if any, hope of ever 
recovering.
    In my own State, the National Marine Fisheries Service is 
investigating whether beluga whales in the Cook Inlet should be listed 
on the Endangered Species Act. The agency is responding to a petition 
filed by an organization that has a political agenda of driving a stake 
in the heart of economic development in Alaska. This Act has become a 
powerful weapon to stop or limit development in this country.
    Mr. Chairman, instead of criticizing political appointees within 
the Department of the Interior for doing their job, this institution 
would be better served by asking how we can improve the Endangered 
Species Act. There is no one who can objectively say that this program 
is working effectively with a less than 1 percent recovery rate because 
the only entity that is profiting from the Act are those groups who 
endlessly sue the Fish and Wildlife Service and the National Oceanic 
and Atmospheric Administration.
    In the past four years, millions of dollars has been paid to 
litigants in hundreds of court cases. Just imagine, if these funds had 
been used for the original purpose of the Act which was to recover and 
then remove species from the list.
    It is time to stop this madness. Federal policy makers have a right 
to question the conclusions of career biologists. These employees are 
hardworking dedicated public servants but they are not infallible. I 
look forward to hearing from our witnesses and want to hear their 
perspectives on how we can restore the Endangered Species Act to its 
original intent.
                                 ______
                                 
    [The testimony submitted for the record by Robert Hallock 
follows:]

        Statement submitted for the record by Robert J. Hallock

Subjects
    Department of the Interior staff makes changes to Fish and Wildlife 
Service February 8, 2006 redesignation of Critical Habitat for the 
endangered Kootenai River white sturgeon that prevent its recovery. 
This is a documented case history of misuse of the best available 
scientific information during rule making, and subsequent obstruction 
of regulatory processes under the Endangered Species Act (ESA) by the 
Bush Administration appointees within the Department of the Interior 
and the Army Corps of Engineers for political purposes. Several 
remedies widely applicable to the ESA are offered below.
Qualifications
    By Robert J. Hallock, PhD., 33 years with Fish and Wildlife Service 
(Service), Division of Ecological Services, responsible for 
administration of the ESA. I was the Fish and Wildlife Service's 
Kootenai River white sturgeon (Kootenai sturgeon) Recovery Team Leader. 
I am the primary author of the Fish and Wildlife Service's Interim Rule 
published in the Federal Register on February 8, 2006, expanding 
designation of critical habitat for the sturgeon in the Kootenai River 
within northern Idaho. I was the Fish and Wildlife Service consultation 
biologist directly involved with Corps of Engineers' operations of 
Libby Dam, on the Kootenai River in Montana.
Background, Status of the Surgeon, and Urgency to Conserve
    The Endangered Species Act was passed by Congress to insure that 
the species diversity of the United States was not threatened by 
untempered economic growth and development. As implemented it is a 
balance between development and the goals of the ESA. The Act primarily 
accomplishes Congress' goals through listing and recovery of species at 
risk of becoming extinct. Key to protection and recovery of a species 
is the development of the biological opinions on Federal activities 
including the proper use of essential primary constituent elements of 
designated critical habitat
    Designation of Critical Habitat falls under section 4 of the Act. 
Such determinations are supposed to be made ``on the basis of the best 
scientific data available.'' By definition, critical habitat ``means 
(i) the specific areas within the geographical area occupied by the 
species at the time it is listed in accordance with provisions of 
section 4 of this Act, on which are found those physical or biological 
features (I) essential to the conservation of the species and (II) 
which may require special management considerations and protection.'' 
Recovery of the Kootenai sturgeon is dependent upon restoring 
sufficient water depth to allow migration into otherwise suitable 
designated Critical Habitat to spawn, and incubate embryos.
    Background and urgency for listing and development of critical 
habitat: The Kootenai sturgeon numbered about 7,000 in 1980, but only 
about 1,400 when listed in 1994, and fewer than 500 of these fish 
remain today. They have not successfully reproduced since 1974, 
coincident with the operations of Libby Dam, Montana. As a result of 
operating the Kootenai River for hydroelectric power generation and 
flood control, this dam has significantly altered spawning season 
flows, depths, and water temperatures of the river. Since Libby Dam, 
annual average maximum water depth within designated critical habitat 
has been reduced by about 12 feet. This loss in depth has precluded 
known use of this critical habitat for 15 out of the last 16 years that 
intensive monitoring has taken place. The exception being 2006, when 
the Corps failed to follow its established, previously consulted upon, 
flood control procedures, and caused a high water event only 3 feet 
shallower than the unregulated annual average annual peak flow event 
within this newly designated critical habitat. Under these conditions 
in 2006 about one third of radio tagged females in spawning condition 
did migrate into this critical habitat.
Intervention
    A senior Department of the Interior official forced the Service to 
change the essential primary constituent element for water depth to a 
level not recommended by the Service, not supported by the available 
scientific data and information, and not leading to survival or 
recovery.
    For 12 years the Army Corps of Engineers has ignored the Reasonable 
and Prudent Alternative measures to provide greater flows of three 
biological opinions (1995, 2000, and 2006) that found jeopardy to the 
continued existence of the species based upon their proposed actions. 
The biological recommendations addressed the critical need to restore 
spawning habitat by enhancement of powerhouse releases through either 
use of the spillways or installation of the additional existing 
generators, turbines, and related facilities now stored within the 
powerhouse at Libby Dam. Biologists of the Idaho Department of Fish and 
Game have documented population declines, and they have estimated that 
the remaining adult sturgeon die at 9% per year. Because the reduced 
water depth, most sturgeon continued to spawn over unsuitable sandy 
substrate downstream of the newly designated critical habitat. Because 
of these unsuitable conditions, millions of eggs and embryos perish 
annually.
    Besides Army Corps of Engineers' years of failures to follow 
earlier and existing biological opinions, the Corps' staff has begun 
insinuating pending ``stock limitation''. Stock limitation would be 
used as an excuse to evade responsibility to use their authorities to 
recover the Kootenai sturgeon because an argument could be made that 
there would not be enough spawning sturgeon remaining to demonstrate a 
reproductive response, no matter what form of habitat restoration 
occurs. The Service and the Recovery Team, including State, Tribal, and 
Canadian entities, believe recovery is achievable.
Specific Points of Intervention
    The following is a list of extraordinary efforts by the staff of 
the Secretary of the Interior to intervene, to delay, and to nullify 
the regulatory process of designation of critical habitat, leading to 
obstruction of subsequent consultation under section 7, and how and why 
this is occurring:
      Abuse of the ``Data Quality Act'' which is supposed to 
assure quality, objectivity, and integrity of Federal government 
information. In practice, the Secretary's staff inserted inappropriate 
information to minimize accountability of the regulated agencies in 
advance of critical habitat designation (rule). Initially they 
attempted to eliminate a measurable depth criterion of at least 7 
meters altogether. Then they required the Service to arbitrarily reduce 
recommended minimum water depth to at least 5 meters.
       No sturgeon spawning migration or successful recruitment has 
been documented in the designated critical habitat with minimal flows 
resulting in water depths of only 5 meters. This critical habitat rule 
facilitates legal challenges from affected third parties such as 
Anheuser-Busch (hop farms), downstream Canadian hydroelectric 
operators, or conservation groups. Any litigation delays effective 
recovery actions. In addition, insertion of the Secretary's staff's 
arbitrary 5 meter depth criterion made my critical habitat rule useless 
during the subsequent ESA section 7 consultation for Libby Dam that was 
signed 10 days later (February 18, 2006). This consultation addressed 
the most significant of the essential critical habitat features: 
minimum water depth suitable for normal spawning migration behavior, 
survival, and recovery. Had the original draft critical habitat 
recommendation, greater than 7 meters, stood, the February 18, 2006 
biological opinion would have had the same clear minimum water depth 
standard, and it would have led to recovery.
      Anti-ESA/regulatory language. The Secretary's Office 
required the insertion of boiler plate propaganda falsely claiming that 
the designation of critical habitat is of little value for conservation 
of listed species, and that litigation resulting from these tardy or 
faulty rules wastes agency resources. Because of the Interior staff's 
arbitrary reduction in critical habitat need for depth discussed in the 
bulleted item above, the Secretary's required inserted language becomes 
a self-fulfilling prophesy. This Interim ``final'' Rule is flawed, and 
it does not provide for either survival or recovery of the Kootenai 
sturgeon.
      In an overt attempt to obstruct future section 7 
consultation, Julie McDonald forced the Fish and Wildlife Service to 
insert faulty consultation baseline language into the February 8, 2006 
Interim Rule designating critical habitat for Kootenai sturgeon, 
Federal Register, Vol. 71, No. 26, Feb. 8, page 6389. MacDonald 
inserts: ``In some cases, the PCEs may exist as a result of ongoing 
Federal actions. However, the Service does not foresee that continued 
operations of Libby Dam in a manner consistent with past operations 
would result in adverse modification of critical habitat. These 
conditions are part of the current baseline conditions.'' As our 
Interior Solicitor has pointed out, if this were true there would be no 
need for the Corps to have consulted on the operations of Libby Dam 
three times each with the Fish and Wildlife Service and National Marine 
Fisheries Service. Also, no special management could subsequently be 
recommended to the Corps by the Service to address the ongoing adverse 
modification of critical habitat.
       On a conference call with me, Susan Martin and others of the 
Service's Spokane Field Office, Dale Hall, Director of the Fish and 
Wildlife Service, was adamant that this baseline insertion in the 
Kootenai sturgeon Interim Rule was out of line. He vowed that he would 
deal directly with Julie MacDonald, and to have this passage removed. 
Unfortunately, he failed. As cited above this language remains in the 
published Kootenai sturgeon critical habitat Interim Rule.
      The Secretary's Office's recent creation of required 
special internal procedures, ``concept papers,'' to provide themselves 
and their preferred special interests an advanced, closed-door, 
opportunity to intervene in the process prior to the publication of 
even Proposed Rules. Rules are supposed to be based solely on best 
available scientific information. This unnecessary and inappropriate 
procedure serves only political ends while attempting to shield key 
portions of the Administration's deliberative process from public 
review.
      Direct alteration of the quality of scientific 
information relied upon. Direction to misclassify four peer reviewed 
research papers by the U.S. Geological Survey as ``gray literature''. 
This weakens the information on altered physical parameters leading to 
the primary constituent element, the minimum 7 meter depth criterion, 
and invites Data Quality Act challenge by affected third parties. It is 
widely understood that USGS peer review process and research quality is 
second to none.
      Also in the concept paper phase, the Secretary's staff 
arbitrarily eliminated all quantification of essential physical-habitat 
features, the Primary Constituent Elements including the essential 
minimum 7 meter water depth.
      When the Service resisted, the Secretary's staff ``cherry 
picked'' an outlier data point (5 meters) from the best available 
scientific data to misrepresent as the essential physical habitat 
feature for water depth. This alone rendered this published Interim 
``final'' Rule useless for the conservation of the Kootenai sturgeon.
      The arbitrary 5 meter water depth criterion inserted 
personally (as documented in ``track changes'') by Julie MacDonald of 
the Secretary's staff essentially nullified the section 7 consultation 
regulatory requirement upon the Army Corps of Engineers to provide 
greater flows and essential water depths. The Corps was no longer 
obligated to provide flows within the newly designated critical habitat 
sufficient to meet even a minimal water depth for proper spawning 
migration behavior. That February 18, 2006 section 7 consultation which 
relied in part upon my interim critical habitat rule is now in Court. 
Thus, the Secretary's required boiler plate claiming that critical 
habitat is resulting in unwarranted litigation has already become a 
self-fulfilling prophesy assured by the behavior of the Secretary's own 
staff.
      Deputy Assistant Secretary Julie MacDonald arbitrarily 
inserted unreferenced materials in my Federal Register notice of 
February 8, 2006, misrepresenting the Army Corps of Engineers' 
performance in providing sufficient flows during the previous 12 years. 
The insertion was to the effect that the Corps had been in compliance 
with prior jeopardy biological opinions on the operations of Libby Dam. 
The fact is that they have repeatedly failed to implement the flow 
enhancement measures specified in 1995 and 2000 jeopardy biological 
opinions. The unacknowledged fact is that the Corps has been sued and 
lost in District Court for noncompliance with the biological opinions. 
It is also significant that MacDonald (or possibly the Corps as ghost 
writers for MacDonald) failed to reference the litigation history of 
noncompliance to be consistent with the Data Quality Act. Julie 
MacDonald's insertions also contain a favorite misrepresentation by 
some Corps' Northwestern Division staff that the ``(t)he declines [of 
Kootenai sturgeon] are believed to be due to recruitment failure 
largely related to lack of appropriate spawning and rearing habitat''. 
The Corps (through MacDonald) is trying to make the impression that 
appropriate spawning and rearing habitat is naturally lacking. The 
truth is that the critical spawning/ incubation habitat still exists 
but requires adequate flows and water depth to make it accessible. 
Presence of suitable habitat and the ability of sturgeon to reach and 
use it was documented as an unintended consequence of the Corps' 
deliberate disregard of their own flood control procedures in spring of 
2006.* The Corps' action resulted in high flows and water depths, and 
in response a third of the radio tagged females in spawning condition 
did occupy and use this critical habitat. This proved that the suitable 
spawning/incubation habitat existed, and that it is the Corps' 
operations of Libby Dam that are precluding normal migration and 
utilization by spawning and incubating sturgeon.
      Delays forced upon the Fish and Wildlife Service. The 
chronic intervention by the Secretary's staff in late 2005, including 
their newly required ``concept paper'' phase delayed the process to the 
extent that procedural deadlines set by the Court could no longer be 
met even with a 60 day extension to February 1, 2006, granted by the 
Court. Thus, the current critical habitat rule is uniquely labeled 
``Interim Rule'', with internal language stating that it ``does 
constitute a final rule''. Yet this rule calls for public comment, a 
unique label and rule.
      During the fall of 2005, it appeared that Julie MacDonald 
and her assistant Randal Bowman were intending to set up this Interim 
Rule for failure through a third party challenge under the Data Quality 
Act. However, during January 2006 their strategy changed to one of 
direct obstruction through arbitrary insertion of erroneous primary 
constituent elements and unreferenced information that would not 
support either survival or recovery of the Kootenai sturgeon. From that 
time it appeared impossible to overcome this politically motivated 
obstruction from the Department of the Interior.
      Intimidation of powerless Fish and Wildlife Service staff 
by political appointees through the Senior Executive Service (SES) 
personnel in management positions. Throughout the attached 
documentation it is evident that numerous Fish and Wildlife Service 
biologists at field, regional, and central office staff levels 
attempted to adhere to the best available scientific information during 
the formulation of this Kootenai sturgeon Interim Rule. However, the 
Fish and Wildlife Service staff was ultimately unable to resist 
political intervention and total disregard of the Data Quality Act by 
Julie MacDonald and her assistant, Randal Bowman, seeking early 
political intervention on behalf of economic special interests. The 
Endangered Species Act regulatory processes were deliberately subverted 
by the Bush Administration appointees acting through compliant Civil 
Service managers and Senior Executive Service personnel.
Remedies
    If you truly want the regulatory agencies to conduct business as 
Congress has prescribed in the laws, than you need to replace all SES 
positions in the regulatory agencies with regular Civil Service 
positions. In this way agencies may again have stable public servants 
as leaders and their staffs will have sufficient autonomy to do their 
jobs without fear of retaliation.
    Senior Executive Service has created a systemic cancer within the 
regulatory agencies, where the smallest of decisions are subjected to 
political review and the best available scientific information becomes 
negotiable. SES was created by the Civil Service Reform Act of 1978, 
and now most of the top positions in the Fish and Wildlife Service, 
Regional Director up, are SES. It is about money in exchange for 
political control. SES employees have higher pay scales and compete for 
bonuses from a dedicated bonus source in exchange for loyal political 
obedience. These SESers have hire and fire authority over regular civil 
servants, yet like their appointed political masters in the 
Departments, few have been held accountable for adverse personnel 
actions or poor resource decisions, including those involving the ESA. 
They have for decades systematically selected and promoted regular 
Civil Service line officers for similar levels of obedience even when 
that obedience means that laws could be violated. With such a top down 
structure well established it should be no surprise that the purposes 
of the ESA are not reliably fulfilled in response to shifting political 
priorities in the Executive Branch.
      Accountability for Federal employees for disregard of 
requirements of the Endangered Species act is almost unheard of. While 
adequate provisions exist within the Act, for political reasons they 
rarely enforced. In some instances where politics has been given 
priority over best available science, known threats to currently listed 
species have been perpetuated. Some of these treats may be closely 
linked to take, a prohibited action under section 9. Where it can be 
demonstrated that such actions were outside the scope of the Endangered 
Species Act or established consulted upon agency procedures, the 
potential of criminal liability exists. Accountability has also been 
lacking when politics has trumped best available scientific information 
in a high proportion of recent listing decisions. Some of these poor 
decisions have been reversed by the courts. However, this may take 
years. In the interim threats commonly remain unaddressed, as species 
continue to decline.
    The problem here is that investigations involving Endangered 
Species Act are initiated within the Service's Division of Law 
Enforcement, (a subdivision of the Department of the Interior) prior to 
referral to the Department of Justice. Since frequently Interior 
officials are involved directly or in some way complicit, these 
investigations do not occur or they do not reach the Department of 
Justice for prosecution. This has become a classic case of the fox 
guarding the hen house.
    As a remedy, Congress could redirect that all potential instances 
of wrongdoing under the Endangered Species Act now be referred directly 
to the Department of Justice for investigation and prosecution if 
warranted. Further, a tracking system is suggested to allow Congress to 
assess performance by the Department of Justice.
      Abolish the so-called Data Quality Act and anything else 
that comes up administratively to carry out the same objectives. This 
is nothing more than a poorly disguised tool to aid special economic 
interests and the Federal action agencies serving these special 
interests evade Federal laws and regulations, including the ESA under 
the veil of ``sound science''.
    * The Army Corps of Engineers has been forced to publicly admit 
that their 2006 spill at Libby Dam of up to 31,000 cfs was a result of 
deliberate repeated failure to follow their own flood control 
procedures. The Corps has yet to admit to why they deliberately 
disregarded their primary mission and authorities three times in 2006 
alone. Nor have they taken disciplinary actions against those 
responsible for the adverse effects. Effects of this spill included: 1) 
Unreported lost hydroelectric revenue of approximately $20 million that 
will never be included in the annual Treasury payments by Bonneville 
Power Administration. Unreported agricultural losses were also in the $ 
millions. 2) Due to extended periods of elevated dissolved gas in the 
water during this forced spill, there was unauthorized injury of 
threatened bull trout in the Kootenai River below Libby Dam documented 
by Montana Department of Fish Wildlife and Parks, 3) The Corps was 
responsible for generating unwarranted fear of flooding in the local 
communities, and 4) The Corps has lost credibility as an agency charged 
with assuring public health and safety. The Corps' After Action Report 
of this spill event omitted disclosure of the extensive economic 
losses, omitted any credible explanation of why they disregarded their 
own established procedures on three occasions in 2006 alone, and 
arbitrary omission an external peer review on their After Action Report 
consistent with the Data Quality Act.
    Calls for a Department of Defense Inspector General whistleblower 
investigation, FBI investigation, and Service's Division of Law 
Enforcement investigation have all been ignored. No one has been yet 
been held accountable within the Corps, suggesting that they were 
working under orders from high in the Administration. I can offer only 
two explanations for this Corps operational failure 1) it was an 
arrogant and irresponsible attempt to resist regulatory recommendations 
under the ESA from both the Service and National Marine Fisheries 
Service to adopt a more fish friendly flood control procedure, and 2) 
it would serve to maintain the status quo and the optimization of 
hydroelectric operations in the U.S. and Canada, and agricultural 
operations in Idaho, especially 50 acres of hops owned by Anheuser-Bush 
Inc. that are planted within the levees along the Kootenai River.
                                 ______
                                 

  Supporting information for testimony of Robert J. Hallock at House 
    Committee on Natural Resources, Full Committee Oversight Hearing

    Subject: Chronology of Julie MacDonald's intervention into Kootenai 
sturgeon Critical Habitat Interim Rule (FR Vol. 71, No. 26 Wed. Feb. 8, 
2006, Pages 6383-6396)
    Julie MacDonald, Deputy Assistant Secretary of the Interior, was 
directly involved in the technical details during Fish and Wildlife 
Service's development of the Interim Rule expanding the designation of 
critical habitat for the Kootenai sturgeon, published in the Federal 
Register on February 8, 2006, under a Court order.
    This discussion involves a listing decision under section 4 of the 
Endangered Species Act and by definition it is supposed to be developed 
``solely on the basis of the best scientific and commercial data 
available''. However, the communications identified below document how 
Ms. MacDonald regularly inserted the administration's policy and 
distorted the scientific information during development of this Interim 
Rule redesignating critical habitat for the Kootenai sturgeon.
    The following annotated chronology tracks the development of two of 
the significant flaws which Ms. MacDonald forcibly inserted into this 
Interim Rule:
    1) One flaw involves a policy matter that inappropriately 
establishes a baseline condition of the existing Federal agency 
operations of Libby Dam for subsequent consultations. These ongoing 
operations of Libby Dam known are known to have been causing 
recruitment failure among Kootenai sturgeon for 30 consecutive years. 
This flawed baseline condition, established in this critical habitat 
rule by Julie MacDonald, constrained the Fish and Wildlife Service 
during section 7 consultation and allowed the Federal actions agencies 
to avoid full utilization of their authorities to conserve the Kootenai 
sturgeon. This is precisely what occurred in a biological opinion on 
Libby Dam operations issued on February 18, 2006 just 10 days after 
this Interim Rule.
    2) The other flaw involves arbitrarily (``cherry picking the 
data'') to minimize the depth metric in the Primary Constituent 
Elements (PCE). This was also intended to minimize the regulatory 
burden, and it resulted in a management threshold metric not likely to 
support or conserve the endangered Kootenai sturgeon. Thus subverted 
politically, this critical habitat Interim Rule becomes ineffective, 
and the DOI required boiler plate additions to the critical habitat 
rules condemning the process become a self-fulfilling prophecy.
    Throughout this process you will see attempts (ultimately 
unsuccessful) by various staff of the Fish and Wildlife Service to 
resist Ms. MacDonald in order to develop a functional and defensible 
critical habitat consistent with the Endangered Species Act.
    The dates below are arranged by the date upon the most recent e-
mail in a communication string. Some of these e-mail communication 
strings include relevant attachments with Julie MacDonald's input in 
track changes.
    09-23-05: Guidance is sought on how to address this baseline issue 
initiated by the Corps of Engineers involving Kootenai sturgeon. 
Reference is made to inappropriate use of baseline in the ongoing 
resignation of critical habitat for bull trout and the possible poor 
precedent for the ongoing redesignation of critical habitat for 
Kootenai sturgeon.
    11-29-05: e-mail message from Jesse DELia
    Julie MacDonald becomes directly involved in the drafting of the 
sturgeon critical habitat rule. The attachment: Kootenai comments(11-
18-05) includes her comments in track changes. Within this iteration of 
the draft rule the faulty baseline language has already been inserted 
in both the Primary Constituent Elements discussion and in the Section 
7 Consultation discussion, page 33 and 39 respectively:
    ``Each of the areas designated in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of the Kootenai sturgeon. In some cases, the PCEs exist as a 
result of ongoing Federal actions. As a result, ongoing Federal actions 
at the time of designation will be included in the baseline in any 
consultation conducted subsequent to this designation.''
    My primary constituent elements section with specific metrics, 
including at least 23 feet (7 meters) of river depth have been removed 
entirely. In their place is inserted on page 33 ``We have not changed 
the existing PCEs in this rulemaking.'' This is not based on the best 
scientific information available in 2005.
    01-19-06: Draft rule returned from Fish Wildlife and Parks (DOI, 
MacDonald). This iteration includes my suggested insertion within the 
flawed baseline paragraph now moved into the Special Management 
Considerations and Protections section: ``However, the current ongoing 
operations of Libby Dam do not provide for sufficient flows and depths 
of the Kootenai River that are features essential to the conservation 
of the sturgeon.'' In addition two narrative PCEs are reinserted, 
neither has specific measurable metrics. DOI required ``boiler plate' 
subsections discrediting the critical habitat process is still present 
within the Supplementary Information section.
    01-25-06, 12:16 PM: Includes terse, accusatory comments and 
directions from Julie MacDonald to Ren Lohoefener, e-mail of 01-21-06. 
Note MacDonald's reference to her data, underlined for emphasis. 
Includes another iteration with more of Julie MacDonald's ``rewrite'' 
of 01-20-06, and her comments shown in track changes.
    My sentence inserted in the flawed baseline discussion remains on 
page 26.
    In the background information section page 6 Julie MacDonald has 
misrepresented the data and ``cherry picked' and the lowest end of the 
range depth where any sturgeon egg has been recovered by one researcher 
working only in the Kootenai River, 16.5 feet (5 meters). She then 
relied upon that to replace my 23 feet (7 meters) management criterion 
in the PCEs. In her 01-20-06 draft rule on page 6 Ms. MacDonald now 
states ``The data indicates that Kootenai Sturgeon actually spawn at 
depths roughly greater than 16.5 ft(5 m)...''. Then on page 24 
MacDonald changes the PCE metric to read'' A flow regime ``to produce 
depths of at least 16.5 ft(5 m)...''. Julie MacDonald, said to be an 
engineer by training, is here functioning as a biologist.
    The required DOI political boiler plate discrediting the critical 
habitat process has been removed from this document.
    MacDonald inserts an almost entirely new background section. Of 
particular interest is the first full paragraph found on page 6 
involving the role of the Army Corps of Engineers. There are numerous 
implications:
    1) First, is obvious that no one in the Fish and Wildlife Service 
wrote this new background section. It came from MacDonald to the 
Service. I certainly did not write this although I am identified as 
principal author at the end of this Interim Rule.
    2) There are no citations for the information in this paragraph. A 
different standard is used to measure the veracity of materials 
inserted by Julie MacDonald in to the rule. There is a double standard 
on information quality involved here. I have no entries to identify the 
source of this misrepresented information in the administrative record 
for this Interim Rule. Data Quality Act disregarded by MacDonald
    3) Because the several misrepresentation(s) in this paragraph 
mirror those perpetuated by the Army Corps of Engineers staff over the 
past 11 years (involving noncompliance with the Reasonable and Prudent 
Alternatives of 3 Jeopardy Biological Opinions) it is apparent that 
staff from the Army Corps either directly wrote this paragraph for 
MacDonald or otherwise communicated it to her.
    4) First sentence attributes the declining population of sturgeon 
as ``due to recruitment failures largely related to lack of appropriate 
spawning and rearing habitat.'' We have heard Dave Ponganis of the 
Corps make this same misleading claim for years. To the contrary 
spawning and rearing habitat has been always been there in the braided 
reach. However, the Corps operations of Libby Dam have reduced water 
depth, and this has in most years been altering normal behavior of 
sturgeon during their spawning migration and causing them to spawn 
unsuccessfully elsewhere over unsuitable sandy substrate.
    5) The third sentence is a half truth at best. The Corps has 
disregarded the RPAs of our 3 jeopardy biological opinions over an 11 
year period. The RPAs I am referring to are Service recommendations to 
use the spillways at Libby Dam specifically to augment flows, in excess 
powerhouse capacity, to allow the sturgeon to migrate and reproduce 
normally. By refusing to perform the most obvious recommended 
experiment involving flows the Corps has suppressed a logical adaptive 
approach to conservation. If you do not do the experiment you don't 
have to evade the results if they are inconvenient.
    01-25-06, 3:04 PM: Series of e-mail messages in a mode of 
``triage'' in response after the fact to MacDonald's manipulation of 
the data involving depth needs for migration of Kootenai sturgeon 
spawners. The direct conference call mentioned was supposed to include 
Julie MacDonald and me. If MacDonald was on the call she was not 
announced. During that call I explained how inappropriate this 5 meter 
depth criterion was, and how it was not supported by the citation 
relied upon by MacDonald in her inserted background section on page 6 
or on page 24, her inserted PCEs. The Service staff really had no 
alternatives, but to include MacDonald's edits. At this point MacDonald 
had essentially assumed my role as primary author of this Interim Rule.
    (A total of 5 e-mail strings, including attachments with 
MacDonald's input in track changes sent in separate e-mails)
    [NOTE: Additional information submitted for the record has been 
retained in the Committee's official files.]
                                 ______
                                 
    ]The Final TWS Position Statement on the ESA prepared by 
The Wildlife Society follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

    Mr. DeFazio. Just to clarify Mr. Sali's point as best 
as we can on the commercial factors, I mean, this quotation a 
little longer, it says, ``Solely on the basis of the best 
available scientific and commercial information regarding a 
specie's status without reference to possible economic or other 
impacts of such determination.''
    But there does not seem to be an otherwise, according to 
staff, definition of commercial data, so we will have to 
continue to plumb the depths of that, but my understanding is 
economic considerations come in at the top of designation of 
critical habitat and/or the ``God Squad'' being convened to 
determine the fate of a species. Commercial data, at least in 
consideration of salmon generally, and that is, as was stated 
by one of the witnesses, which is, we catch fish, we have to 
document the fish we catch, and that can be submitted a part of 
an argument about the viability of the species.
    Finally, just one last thing to Secretary Scarlett, and 
hopefully this time we will agree. We have an interagency 
problem here which you could resolve satisfactorily. Chairman 
Rahall has a large number of petitions regarding the record of 
decision on the de-listing of the, or listing, is it a de-
listing? De-listing of the Northern Flying Squirrel, and I 
won't read the formal name, and these were postmarked on the 
date that comments closed, but the Postal Service delivered 
them after that date, and apparently, according to Chairman 
Rahall, thus far the position of the Department has been that 
they can't accept them even though, for instance, the IRS says, 
gee, if you mailed your check by midnight, it is OK.
    What do you think? Can we help these people out?
    Ms. Scarlett. I would prefer to turn to my expert Dale Hall 
on this.
    Mr. DeFazio. OK.
    Ms. Scarlett. He is the one that would know the procedures 
and rules with respect to the timing.
    Mr. DeFazio. Is the gentleman----
    Ms. Scarlett. He says we will----
    Mr. Hall. Yes, I wasn't aware that they were late comments, 
so we will take them.
    Ms. Scarlett. He said we will take them.
    Mr. DeFazio. OK, great. Excellent. We end on a positive 
note. The Chairman will be happy if he ever comes back. I will 
be happy if he comes back, too, because I have to go meet my 
constituents but I appreciate Mr. Inslee taking over.
    I thank the panel for sitting for such a long time, the 
interruption, your patience, and your answers, and look at 
that, perfect timing, we solved your flying squirrel problem. 
So the next panel.
    The Chairman. The next panel is composed of Mr. Dominick A. 
DellaSala, Chief Scientist and Executive Director, National 
Center for Conservation Science & Policy; Ms. Judith Schoyer 
Rodd, Director, Friends of Blackwater; Mr. John Young [Retired] 
Biologist, U.S. Fish and Wildlife Service; and Mr. William P. 
Horn, Attorney at Birch, Horton, Bittner & Cherot.
    Lady and gentlemen, we welcome you to the Committee. We do 
have your prepared testimony and it will be made a part of the 
record as if actually read, and you are encouraged to keep your 
oral testimony within the five-minute limit.
    Dr. DellaSala, do you want to proceed?

  STATEMENT OF MR. DOMINICK A. DELLASALA, CHIEF SCIENTIST AND 
EXECUTIVE DIRECTOR, NATIONAL CENTER FOR CONSERVATION SCIENCE & 
                             POLICY

    Mr. DellaSala. Thank you, Mr. Chairman, Distinguished 
Committee Members.
    My name is Dominick DellaSala. I am Executive Director and 
Chief Scientist for the National Center for Conservation 
Science & Policy, which is a conservation science policy think 
tank in Ashland, Oregon. I, for the past year, have served on 
the Fish and Wildlife Service recovery team.
    By now the Committee has heard several allegations related 
to my testimony, and I submitted it for the record, but I am 
going to summarize here. I would like to set the record 
straight on the recovery process that I witnessed as a recovery 
team member.
    To begin with, the recovery team did not include any of the 
well-recognized published, established, independent owl 
scientists. This was unusual in the terms of recovery team 
makeup.
    The second point I would like to make is that the team came 
up with a draft in September, in part that was based on mapped 
reserves of old growth forests. That draft was sent back to 
Washington, D.C. on September 29. It came back to us with 
direction from the Washington Oversight Committee. We were told 
first that the Washington Oversight Committee ``rejected the 
draft,'' and instead sent us instructions to develop two 
independent options based on this new direction.
    I have extensive documentation of that provided as e-mails 
from different recovery team members that I could submit in 
addition to my testimony. Some of those are summaries from 
discussions that were had with recovery team members and Lynn 
Scarlett.
    During this process, we were told to do the following: Use 
``new science''; second, increase emphasis on the Bard Owl; 
third, de-emphasize old growth habitat protections; fourth, de-
link the recovery plan from the Northwest Forest plan 
protections.
    I want to point out the so-called ``new science'' that is 
based on just two studies, both options one and two 
significantly reduce the amount of old growth forest habitat 
based on interpreting those two studies, and it has already 
been read by Congressman DeFazio the specific caution noted by 
the researchers not to apply their studies in management 
recommendations at this time.
    In addition to that, we had conference calls with those 
researchers that warned us against doing this. We had other 
input from those researchers to the recovery team that said 
don't use our results to develop habitat provisions. That 
advice was ignored. The habitat provisions made it into the 
draft in both options one and two. It is not based on the best 
available science at this time.
    Now, despite the authors' warnings, now we have a document 
that would reduce old growth habitat under both options, and 
contrary to earlier statements on the September draft 
submission, it did include provisions about the Bard Owl. That 
is not true that we did not have provisions in the plan about 
the Bard Owl. The recovery team acknowledged this as a threat, 
had specific actions in there.
    I will point out that when a species like the Spotted Owl 
is faced with multiple threats, including the Bard Owl and 
habitat loss, you protect more habitat, not less. There is a 
very strong body of conservation science that supports that 
statement.
    Now, what we got were two options. Option one has the 
mapped owl conservation areas, or MOCAs, but significantly 
reduces by 27 percent the amount of habitat capable for Spotted 
Owls compared to the Northwest Forest plan. Option two does not 
have any mapped reserves. It is difficult as a scientist for me 
to evaluate an option that does not have maps, but based on an 
exercise we did as recovery team members it appears that that 
option would result in about 823,000 acres of old growth forest 
being left out of the reserve network.
    We have an owl that is declining. We have the prevailing 
science that says it needs habitat protected in fixed reserves. 
There is only 7 million acres of the 24.4 million acres of 
Federal old growth left. Every acre is precious.
    So what is motivating this? First of all, in my testimony I 
have documented the timber settlement agreement that was 
reached between the industry and this administration in 2001. 
That was led by the American Forest Resources Council. It was 
designed to triple the amount of old growth logging in the 
Pacific Northwest.
    The administration settled and delivered on those processes 
through a five-point plan that was designed to weaken the 
habitat protections for listed species, including the owl and 
fish throughout the Northwest. That is what is playing out here 
in this recovery process.
    The recovery process throughout was inappropriately 
interfered politically. It is not based on the best available 
science. The authors themselves of the studies that were cited 
warned against using it in this manner. Yet it still appears in 
the recovery plan.
    I think what we have now is a product that is not based on 
the principles of the Endangered Species Act with respect to 
the best available science being used to develop objective 
measurable criteria. Instead, we have a recovery plan that was 
politically motivated and is most likely to reduce habitat at a 
time when we are witnessing an accelerated decline for the 
threatened Northern Spotted Owl.
    Thank you.
    [The prepared statement of Mr. DellaSala follows:]

    Statement of Dominick A. DellaSala, Ph.D., Chief Scientist and 
 Executive Director, National Center for Conservation Science & Policy

    Chairman Rahall and committee members, thank you for this 
opportunity to testify on scientific integrity and the Endangered 
Species Act. My name is Dominick DellaSala. I am Executive Director of 
the National Center for Conservation Science & Policy, a science-based 
conservation organization in Ashland, OR. Since last June, I have 
served as a member of the U.S. Fish & Wildlife Service (USFWS) 
appointed recovery team for the threatened Northern Spotted Owl.
    There are three key points I will make today in my response to the 
draft recovery plan for the Northern Spotted Owl published in the 
Federal Register on April 26, 2007:
    1.  what was supposed to be a science-based plan was derailed by a 
pattern of political interference (see Exhibit A);
    2.  the recovery plan includes habitat provisions recommended for 
the owl that are considerably less than currently afforded the owl 
under the NWFP; and
    3.  while oversight of agency documents by department officials in 
itself is not unusual, in this case political interference clearly 
allowed the Forest Service and Bureau of Land Management (BLM) to have 
an inappropriate amount of influence that resulted in a recovery plan 
that is not based on the best available science.
    Throughout my testimony I will be referring to options 1 and 2 of 
the draft plan. For simplicity, Option 1 is based, in part, on the 
fixed network of mapped habitat reserves--called Late-Successional 
Reserves or LSRs--initially established under the NWFP. Option 2 does 
not rely on fixed reserves but rather lets the Forest Service and BLM 
decide where blocks of habitat will be located according to a ``rule 
set'' detailed in the recovery plan (see Appendix B of the plan). Both 
options are inadequate to recover the owl.
(1) Spotted owl recovery plan and process was derailed by political 
        interference
    Distinguished Members, in 1991 one of the Northwest's most famous 
judges, The Honorable William Dwyer said that the debate over the 
Northern Spotted Owl is about more than this one species. As he 
recognized, under the law, the owl was the indicator species of the 
remaining old-growth forest; all but a small fraction of which is now 
gone (Seattle Audubon v. Evans, 777 F. Supp. 1081, 1088 (1991). Judge 
Dwyer's ruling set the stage for the adoption of the landmark Northwest 
Forest Plan.
    In April 2006, under pressure of lawsuits by both the timber 
industry and conservation groups, the USFWS agreed to prepare an 
updated recovery plan for the threatened Northern Spotted Owl (an early 
draft was published in 1992 but it was never officially adopted because 
the Secretary of Interior assumed at the time that the NWFP would serve 
as a de facto recovery plan). The agency assembled a multi-stakeholder 
team consisting of representatives from federal and state agencies, 
timber industry, and conservation groups to develop an updated recovery 
plan. This team did not include any of the many well-recognized, 
independent scientists with expertise in owl biology. The USFWS charter 
document under which the recovery team made decisions emphasized that 
``recommendations for recovery actions from the Team will be made in a 
collaborative manner, striving for the highest level of consensus 
possible.
    In late September of 2006, the recovery team forwarded its draft 
plan to USFWS headquarters in Washington D.C. for internal review. The 
team recommended a recovery strategy that was anchored mostly in the 
existing LSR network. We reached consensus on this approach because it 
was the most scientifically credible way to recover the owl. The 
recovery team also agreed it was the most efficient way to integrate 
the NWFP and the recovery plan. The scientific rationale for using 
fixed reserves for conserving spotted owls and other old-growth 
dependent species has been repeatedly reaffirmed in the scientific 
literature (e.g., Courtney and Franklin 2004, Thomas et al. 2006, Noon 
and Blakesley 2006, Strittholt et al. 2006). For instance in a USFWS-
commissioned five-year ``status review'' of the Northern Spotted Owl in 
2004, two scientists, Drs. Steven Courtney and Jerry Franklin concluded 
that:
      ``the Reserve and Matrix strategy of the NWFP has been 
successful and is performing as expected'' (Chapter 9, page 9); and
      the NWFP has made important contributions to protect and 
recover the endangered owl and without the plan the situation of 
Northern Spotted Owls would be far bleaker'' (Chapter 9, page 15).
    In addition, the latest analyses of demography of spotted owls 
(Anthony et al. 2006) has shown that owls are reproducing and surviving 
better on federal land managed under the NWFP than on non-federal lands 
where logging is much greater (i.e., the annual rate of owl population 
declines on nonfederal lands was more than twice that on federal 
lands).
    Although the recovery team agreed that a network of protected LSRs 
would be the foundation of the spotted owl recovery strategy, we did 
not reach consensus on specific habitat provisions for the owl, 
particularly in the southern part of its range. The team agreed to 
forward our science-based recommendations to USFWS headquarters on the 
condition that the draft plan undergo rigorous scientific peer review, 
and that substantive revisions be made, if necessary, pending results 
of peer review. The USFWS initially rejected this request for peer 
review, citing insufficient time as a constraint, although more than 
five months elapsed during which the agency prepared the draft for 
publication. The recovery team was notified on April 24, 2007 (two days 
before public release of the draft plan) that the peer review process 
is finally underway.
    In late September, the Pacific Regional Director of the Fish & 
Wildlife Service, Ren Lohoefener, notified the recovery team of the 
existence of a ``Washington [DC] Oversight Committee,'' consisting of 
high-ranking officials from the departments of Agriculture and 
Interior, who would scrutinize the draft recovery plan (detailed in 
attached Exhibit A). At the time, the oversight committee included 
Julie MacDonald, who was under investigation for political interference 
in other ESA matters and recently resigned from her position. On 
October17, the recovery team was told that the Oversight Committee 
rejected the September draft recovery plan, in part, because it was 
based on the NWFP's network of LSRs and therefore did not provide 
enough ``flexibility.'' The Oversight Committee instead directed the 
recovery team and federal agency staff to rewrite the plan, and to 
include a second alternative--Option 2--that does not rely on fixed 
habitat reserves.
    I want to emphasize that Option 2 is not a product of the recovery 
team. In fact, on February 7, Mr. Ren Lohoefener, Pacific Regional 
Director of USFWS, gave direction to the team to ``don't spend any more 
time on Option 1, the majority opinion of the Washington oversight 
committee is they prefer Option 2.'' This new direction was not based 
on sound science but was designed to give the Forest Service and the 
BLM the discretion to exempt public forests from the NWFP in response 
to ``friendly'' lawsuits filed by the timber industry (known as the 
``global settlement agreement''--see attached Exhibit B) to triple the 
amount of logging in the region. The USFWS also received direction from 
the Oversight Committee to do the following.
      De-emphasize past science and rely on ``new science''--we 
were told to base habitat recommendations on a handful of studies in 
the southern part of the owl's range. Two of those studies point to the 
owl's reliance on a mixture of forest age classes (Franklin et al. 
2000--northern California Klamath province, Olson et al. 2004--Oregon 
Coast Range). However, the authors of both of the studies specifically 
cautioned against using the results to guide forest management actions 
for spotted owls. A third study, also in the southern range near 
Roseburg, Oregon did not conclusively confirm spotted owl use of 
younger forests. Unfortunately, the USFWS ignored these warnings and 
wrote a draft plan that inappropriately recommended region-wide habitat 
criteria that significantly underestimate the old growth habitat needs 
of the owl. The clear intent of this directive was to downplay the 
importance of old growth habitat to allow additional old growth logging 
on federal lands (detailed below).
      ``Flip and switch'' the presentation of threats to the 
spotted owl in the draft plan by minimizing the importance of habitat 
loss and placing more emphasis on Barred Owls--An October 25 memo 
directed the recovery team to ``indicate [the Barred Owl] was [the] 
only threat given priority number 1''and summarize the habitat threats 
discussion into less than a page.'' An untitled document dated October 
27 and distributed to the team at a meeting in Portland by Dave Wesley, 
recovery team leader, contained instructions from Lynn Scarlett, Deputy 
Director of Interior, directing the recovery team to make the new 
option (Option 2) ``less focused on habitat preservation.'' Although 
Barred Owls have emerged as a recent threat to spotted owls (Kelly et 
al. 2003, Crozier et al. 2006), the science of conservation biology and 
endangered species management is clear on this point--when a species is 
faced with multiple threats it is best to conserve more habitat for it, 
not less.
      ``De-link the recovery plan from the Northwest Forest 
Plan''--On October 18, we received notice from the USFWS to ``de-link 
the owl plan from the Northwest Forest Plan'' to provide the Forest 
Service and BLM with more ``flexibility'' (see attached Exhibit A). On 
October 26, Mr. Lohoefener admitted that the Forest Service and BLM 
were driving the recovery plan revisions demanded by the Oversight 
Committee, and stated that the end product would have to be flexible 
enough ``to be acceptable to the Forest Service and BLM.'' Under 
intense questioning from recovery team members, both Dave Wesley, USFWS 
recovery team leader, and Cal Joyner, the Forest Service representative 
on the recovery team, explained that ``flexibility'' meant giving the 
Forest Service and BLM discretion to alter or eliminate Managed Owl 
Conservation Areas (or MOCAs as in Option 1 of the draft recovery plan) 
from the recovery plan. Notably, the BLM is currently revising its 
forest plans on 2.4 million acres in western Oregon and is considering 
alternatives that do not include fixed reserves (see Exhibit B) and the 
Forest Service recently excluded from NEPA its forest plan revisions 
(Federal Register Vol. 71, No. 241, Friday, December 15, 2006, pp 
75481-75495.). It should be noted that one of the primary reasons why 
the owl was listed in 1990 was ``inadequacy of regulatory mechanisms.''
2)  The recovery plan includes habitat provisions recommended for the 
        owl that are considerably less than currently afforded the owl 
        under the NWFP
    Option 1 vs. NWFP--a comparison of the habitat provisions in Option 
1 vs. the habitat provisions in the NWFP for the LSRs (Tables F1 and F2 
in Appendix F (errata copy) of the draft recovery plan vs Table F1 and 
Table 3-8 in Lint 2005) indicates that Option 1 could reduce the 
estimated amount of habitat capable for owls by 27%.
    This is mainly because the Option 1 reserve network (MOCAs) does 
not include all of the existing LSRs. Option 1 also lowers the habitat 
bar for owls in two additional ways: (1) setting delisting thresholds 
for suitable owl habitat at 50-70% within the reserve network (instead 
of the 100% late-successional goal for LSRs under the NWFP), and (2) 
allowing delisting to be considered when an arbitrary 80% of the MOCAs 
in the Option 1 reserve network meet the low regional habitat 
criterion. Both of these provisions could result in premature delisting 
of the owl if habitat is judged to be sufficient based on this 
standard.
    Option 1 vs. Option 2--Option 2 could result in even greater 
reductions than Option 1 because the rule set allows the Forest Service 
and BLM to consider smaller reserves by limiting the size of owl 
habitat blocks relative to Option 1. When applying the rule set for 
Option 2, the recovery team estimated that 823,000 acres of old-growth 
habitat could be left out of the network of habitat blocks compared to 
Option 1 (unpublished recovery team exercise). In particular, because 
Option 2 does not include fixed habitat reserves, only includes an 
``example'' of possible habitat block locations (Appendix B), and does 
not include total acreage figures, it may not meet the requirements of 
the Endangered Species Act regarding ``measurable, objective'' 
standards for delisting criteria.
    I would like to point out that only about 7 million acres of the 
24.4 million acres of public forests in the PNW is currently old growth 
(Strittholt et al. 2006) and not all of this is protected (e.g., 1 
million acres of old forest can be logged in the ``matrix''). This 
represents but a fraction (15%) of historic conditions (all ownerships) 
and therefore every acre of old growth is important. Conversely, the 
vast majority of public and non-federal lands include younger forest 
age classes.
    I would also like to point out that recent demography studies of 
spotted owls found that 9 of 13 study areas across the range of the owl 
had declining populations and the rate of decline was accelerating 
(Anthony et al. 2006). The bottom line here is that the owl is 
declining from multiple causes at a time when the USFWS is proposing a 
recovery plan that lowers the bar on habitat protections under both 
options.
    The flexibility the administration desires cuts both ways--in 
fact--there is an even stronger scientific case to be made for 
enlarging reserves for the spotted owl due to the increased threats 
posed by Barred Owls and loss of habitat from fire. I and other team 
members mentioned this repeatedly during recovery team meetings, yet 
this science-based recommendation was rejected by the USFWS. 
Unfortunately, the habitat provisions in both options could result in 
the need to up-list the owl to endangered status in the future should 
populations continue to decline and habitat be further reduced by 
logging facilitated by inadequate regulatory mechanisms. This could 
eventually result in less flexibility not more.
3)  While oversight of agency documents by department officials in 
        itself is not unusual, in this case political interference 
        clearly allowed the Forest Service and BLM to have an 
        inappropriate amount of influence that resulted in a recovery 
        plan based more on the timber objectives of land managers than 
        on the best available science.
    In closing, I want to underscore the unusual makeup of the recovery 
team and the change in process under which it operated when the 
Oversight Committee took charge late in the process. Typically, 
recovery plans are developed by recognized experts in the ecology and 
management of the listed species to ensure that recovery objectives and 
delisting criteria are based on best available science (Department of 
the Interior and Department of Commerce 1994). Under the ESA, the 
purpose of recovery plans is to get listed species to recover to the 
point where delisting is warranted and protection under the ESA is no 
longer needed. In order for a listed species to move from the 
``intensive care unit'' to a viable population, recovery plans must be 
based on best available science. Obviously, that was not the case here 
as the USFWS did not include the highly recognized owl experts on the 
recovery team whose seminal work was cited and, in some cases, 
misrepresented.
    The political interference documented in this case led to 
misapplication of habitat provisions under both options and the 
creation of Option 2, which is by no means a recovery team product nor 
was it generated out of consensus. In fact, according to a news story 
in the Land Letter on May 3, Dave Wesley, leader of the agency's 
spotted owl recovery team, stated ``the less-defined second option was 
requested by Interior Department political appointees and other high-
level officials in Washington, D.C.''
    Therefore, in spite of nearly a year of participation as a recovery 
team member, I cannot stand by this document. The agency, however, did 
eventually and only recently agree to conduct peer review of the plan. 
Should peer review confirm the scientific flaws noted in my testimony, 
the recovery plan should be rewritten by working closely with 
recognized owl scientists to ensure it is based on the best available 
science without further political interference. Clearly, in the case of 
the draft spotted owl recovery plan science took a back seat to 
politics.
Literature Cited
Anthony, R.G. and several others. Status and trends in demography of 
        Northern Spotted Owls. Wildlife Monographs 163. 48 pp.
Courtney, S., and J.F. Franklin. 2004. Chapter 9: Conservation 
        Strategy. In: S.P. Courtney, J.A. Blakesley, R.E. Bigley, M.L. 
        Cody, J.P. Dumbacher, R.L. Fleischer, A.B.
Franklin, J.F., R.J. Gutierrez, J.M. Marzluff, and L. Sztukowski (eds). 
        2004. Scientific evaluation of the status of the Northern 
        Spotted Owl. Sustainable Ecosystems Institute, Portland, OR.
Crozier, M.L., and several others. 2006. Does the presence of barred 
        owls suppress the calling behavior of spotted owls. The Condor 
        108:760-769.
Department of the Interior and Department of Commerce. 1994. Endangered 
        and threatened wildlife and plants: notice of interagency 
        cooperative policy on information standards under the 
        Endangered Species Act. Friday, July 1, 1994 (34271).
Dugger, K.M., F. Wagner, R.G. Anthony, and G.S. Olson. 2005. The 
        relationship between habitat characteristics and demographic 
        performance of Northern Spotted Owls in Southern Oregon. The 
        Condor 107:863-878.
Franklin, A.B., D.R. Anderson, R.J. Gutierrez, and K.P. Burnham. 2000. 
        Climate, habitat quality, and fitness in Northern Spotted Owl 
        populations in northwestern California. Ecological Monographs 
        70:539-590.
Kelly, E.G., E.D. Forsman, and R.G. Anthony 2003. Are barred owls 
        displacing spotted owls? The Condor 105:45-53.
Lint, J. 2005. Status and trends of Northern Spotted Owls populations 
        and habitat. USDA PNW-GTR-648.
Noon, B.R., and J.A. Blakesley. 2006. Conservation of the Northern 
        Spotted Owl under the Northwest Forest Plan. Conservation 
        Biology 20:288-296.
Olson, G.S., and several others. 2004. Modeling demographic performance 
        of Northern Spotted Owls relative to forest habitat in Oregon. 
        J. Wildlife Management 68:1039-1063.
Strittholt, J.R., D.A. DellaSala, and H. Jiang. 2006. Status of mature 
        and old-growth forests in the Pacific Northwest. Conservation 
        Biology 20:263-374.
Thomas, J.W., J.F. Franklin, J. Gordon, and K. N. Johnson. 2006. The 
        Northwest Forest Plan: origins, components, implementation 
        experience, and suggestions for change. Conservation Biology 
        20:277-286.
    NOTE: Exhibits have been retained in the Committee's official 
files.
                                 ______
                                 

           Response to questions submitted for the record by 
                      Dominick A. DellaSala, Ph.D.

Questions from Republican Members
    I would like to thank the members of the Committee for the 
opportunity to respond to these follow-up questions from the hearing. 
My responses to each question are set out below. In general, a number 
of the questions appear to raise issues of a legal nature. While I am 
not an attorney, my testimony before the Committee was offered as a 
conservation biologist and scientist. Nonetheless, I have attempted to 
respond to the Committee's questions to the best of my ability.
(1)  What role should the states have in protecting endangered species? 
        Do you agree with Ms. Rodd that the Fish and Wildlife Service 
        should not devolve management responsibilities to the states? 
        States control road building, energy development, including 
        alternatives, and home development which could affect listed 
        species.
    Response: The Endangered Species Act is a federal environmental 
law. It already recognizes an appropriate role for the states in a 
number of places explicitly in the following provisions: (1) 16 U.S.C. 
Sec. 1531(a)(5) finds that encouraging state involvement in species 
protection is important to the success of the Act; (2) Sec. 1531(c)(2) 
recognizes a congressional policy of cooperation with states to resolve 
water resource and endangered species issues; (3) Sec. 1533(b)(1)(A) 
directs the Fish & Wildlife Service to consider state efforts to 
protect species in making listing decisions; (4) Sec. 1533(b)(1)(B) 
directs the Fish & Wildlife Service to consider in making listing 
decisions species identified by states as in need of protection; and 
(5) Sec. 1535 generally establishes a program for cooperation with 
states in species conservation. The ESA also implicitly recognizes 
cooperation with the states as, for example, 16 U.S.C. Sec. 1532(13) 
includes officers, employees, agents, departments, and 
instrumentalities of states as ``persons'' generally subject to all 
applicable requirements of the Act. One of the reasons we need a 
nation-wide law for threatened and endangered species is because many 
species cross state lines or are subjected to impacts that come from 
outside a particular jurisdiction. Because the ESA is a federal law, 
any role for the states in protecting listed species should be 
consistent with the purposes of the ESA and should comply with its 
provisions.
(2)  Many endangered species are located on private property. Do you 
        believe that the agency should not weigh the effects of 
        proposed listings on land owners in their deliberations to list 
        a species?
    Response: Section 4 of the ESA sets out the factors the Fish & 
Wildlife Service may consider in determining whether a species should 
be listed as threatened or endangered (see 16 U.S.C. 
Sec. 1533(a)(1)(A)--(E)). These factors are appropriately focused on 
sources of biological threats to a species because the question of 
whether a species faces a sufficiently imminent risk of extinction to 
warrant listing is fundamentally one of biology. The ESA also 
appropriately allows consideration of the effects of a listing on 
private property owners and others in provisions other than the listing 
criteria of section 4 (see, for example, 1533 U.S.C. Sec. (b)(2) which 
allows the Fish & Wildlife Service to exclude specific areas of habitat 
critical to a species from designation as critical habitat for economic 
reasons so long as the exclusion will not result in the extinction of 
the species). This separation of the biological question of whether a 
species should be listed as threatened or endangered from other issues 
about how to respond to a listing is logical and well-founded. From a 
scientific perspective, the effect of a listing on a land owner is not 
germane to the biological question of the degree of risk the species 
faces.
(3)  When the agency designates critical habitat doesn't the law allow 
        the balancing of scientific findings with economic and other 
        considerations?
    Response: Section 4(b)(2) of the ESA specifically provides that: 
``the Secretary may exclude any area from critical habitat if he 
determines that the benefits of such exclusion outweigh the benefits of 
specifying such areas as critical habitat, unless he determines, based 
on the best scientific and commercial data available, that the failure 
to designate such area as critical habitat will result in the 
extinction of the species concerned'' (see also 50 C.F.R. 
Sec. Sec. 424.12 to 424.21--regulations that govern designation of 
critical habitat recognizing role of economic impacts and other 
considerations in final habitat designations). Thus, it would appear 
that the ESA and its implementing regulations already allow the 
consideration of economic issues in making a critical habitat 
determination under specific circumstances and standards. In my view, 
this approach adequately allows the balancing of scientific findings 
with economic and other considerations.
(4)  As a biologist, have you ever been in a position where there were 
        other scientists that did not agree with a position you took 
        based on research?
    Response: Many apparent disagreements among scientists arise at 
first because they are addressing different but related issues, working 
from different assumptions, collecting different data, or using 
different methodologies. When they compare assumptions and data and 
analyze them objectively to determine which are most appropriate and 
reliable, areas of disagreements are usually reduced or eliminated. It 
is for this reason that focusing on science and relying on the best 
available scientific and commercial data--as the ESA does--provides the 
best foundation for reliable decisions about species and their 
conservation.
    In addition, while it is certainly not unusual for scientists to 
disagree over research findings, these disagreements are best resolved 
through the peer review process of which I have participated throughout 
my 20-year career. Peer review is the gold standard by which quality 
science is objectively judged. When disagreements over published 
articles occur, they also may be resolved through point and counter 
point articles and additional research. In this manner, scientists 
benefit by rigorous, independent review and exchange of ideas, and 
decision makers benefit by having the best science available to make 
informed policy choices.
    As subject editor for two scientific journals, The Natural Areas 
Journal and Conservation Biology, I have overseen the peer review 
process using a refereed and independent (blind) peer review process. 
This is the best standard we have for resolving scientific debate. My 
own research, which includes over 150 published articles, has gone 
through this type of rigorous, independent peer review.
(5)  What do you think of Mr. Horn's testimony where he describes 
        making policy decisions after receiving differing scientific 
        recommendations? Do you agree that in those cases it is 
        necessary for a policy person to make decisions that not all 
        scientists would agree with?
    Response: There is a legitimate and appropriate difference between 
science and policy. Scientific issues depend on detailed observations, 
objective analysis of data, and carefully drawn conclusions based on 
the facts and analysis. Policy issues often reflect other values, 
including societal ones. The key, however, is for policy makers to 
explain their policy choices in light of setting aside such findings 
where they choose to do so. Only with such clear and careful 
articulation of the grounds for policy choices can the public and 
others evaluate whether a policy choice is appropriate in light of the 
broader policy choices and standards set forth in our laws.
    Agency officials or decision-makers sometimes choose to ignore 
scientific findings in making policy choices. In these cases, the 
foundation on which those decisions were made is undermined with the 
likely outcome of a poor and risky decision. For this reason, it is 
important that decisions by policy persons are made in an open and 
transparent manner so that consequences can be appropriately weighed by 
society. Far worse, however, are the cases in which decision-makers 
seek to manipulate, distort, overturn, or suppress scientific findings 
in order to make them comport with their policy preferences. There were 
numerous examples given by witnesses at the May 9 hearing that point to 
an unprecedented manipulation of science by agency officials in this 
administration. These efforts essentially rely on subterfuge to deprive 
the public and the Congress of any ability to evaluate the soundness of 
decisions. In my view, this is an inappropriate approach to the 
intersection between science and policy that I have tried to focus in 
on one particular instance--the preparation of a draft recovery plan 
for the Northern Spotted Owl--in my testimony to the Committee. Indeed, 
under the Endangered Species Act, the overriding policy of the Fish & 
Wildlife Service must be ``to provide a means whereby the ecosystems 
upon which endangered species and threatened species depend may be 
conserved, [and] to provide a program for the conservation of such 
endangered species and threatened species''. 16 U.S.C. Sec. 1531(b). In 
the case of the spotted owl recovery plan, preconceived outcomes got in 
the way of sound science.
(6)  Would you agree that science is never clear cut, that two 
        scientists could research an issue and come up with different 
        results or opinions?
    Science is often quite clear cut, especially where there is 
sufficient information to draw reliable conclusions. In cases where it 
is not, scientists lack enough information to draw reliable inferences. 
Even in these situations, however, scientists often have methods of 
analysis that can provide useful and reliable insights in the face of 
uncertainty and risk assessment and most often couch there statements 
in probability terms. Where scientists do ``research an issue and come 
up with different results or opinions,'' as I noted above, it often 
involves different assumptions, analytical methods, and so on. For that 
reason, these apparent differences can usually be resolved--if not 
immediately then over time--by scientists working together, comparing 
their results, refining their analyses, and stating their confidence 
limits. The idea--suggested by the question--that there is no such 
thing as a right answer in science, is resolvable through peer review 
and statements of confidence in the findings.
    In addition, reputable scientists would not reach hasty conclusions 
when the facts are largely unknown or in dispute. The risks to 
endangered species, and society, go up when policy decisions are based 
on scientific uncertainty (e.g., findings that have low confidence 
levels or have limited application) and poor choices. This is 
especially troubling when the science is outright ignored, manipulated, 
or interfered with in order to support preconceived outcomes. To 
illustrate this point, I would like to discuss a particular case where 
hasty or incorrect policy decisions could lead to more costly measures 
or, even worse, changes that are impossible to reverse.
    In the case of threatened Northern Spotted Owl, there is a 
scientific consensus that the owls' survival depends on protecting old-
growth forests from logging. This is based on more than two decades of 
research (see Anthony et al. 2006). The draft spotted owl recovery 
plan, however, falsely concluded that the owl does not need a high 
proportion of old-growth forests to survive. This conclusion was based 
on just two studies (Franklin et al. 2000, Olson et al. 2004) in the 
southern portion of the owls' range where owls were reported using a 
mixture of forest age classes (not just old growth). However, a third 
study (Dugger et al. 2005) by some of the same researchers in a nearby 
study area could not confirm these findings. When a small number of 
studies produce results that are inconsistent with a larger body of 
work, the proper scientific approach is to treat these with great 
caution and work to 1) confirm whether they are correct or not, and 2) 
if correct, how far can they be reliably extrapolated? The following 
statements from these researchers underscore my concerns:
      ``...we do not recommend that forest managers use our 
modeling results as a prescription for managing habitat either within 
the Oregon Coast Range or elsewhere until other similar studies have 
been conducted.'' (Olson et al. 2004).
      ``I have repeatedly noted that the monograph (Franklin et 
al. 2000) represents just a first approximation of these relationships, 
which form the basis for future studies, but in itself should not be 
considered definitive.'' (Dr. Alan Franklin in a November 21, 2006 
letter to Paul Phifer, Fish & Wildlife Service, which was forwarded to 
the recovery team).
    Unfortunately, these warnings were ignored by Fish & Wildlife 
Service which instead chose habitat provisions for the owl that low-
ball old-growth protections based on false interpretations of the two 
studies. This is a clear-cut example of making hasty decisions that 
could result in premature delisting of the owl, or even worse, 
continued and irreversible habitat losses. In this case, science was 
misapplied and statements of scientific uncertainty ignored in order to 
support a preconceived outcome dictated by the Washington Oversight 
Committee as detailed in my testimony.
    Because conservation science is the science of ``crisis 
management,'' especially in the case of endangered species, prudent 
decision making should be based on the precautionary principle. Old 
growth habitat once logged takes many decades to re-grow. Because the 
owl requires old growth over most of its range, as most owl biologists 
have concluded, logging these forests pushes the species closer to 
extinction and could trigger an up-listing to endangered status, 
resulting in decisions more costly socially and economically. Most 
notably, the owl is an indicator species of old-growth forests, which 
contain a broad suite of values widely supported by society. These were 
considered in the Northwest Forest Plan, and any action that weakens 
the Plan has implications that reach beyond the fate of the Northern 
Spotted Owl.
Literature Cited
Anthony, R.G. and several others. Status and trends in demography of 
        Northern Spotted Owls. Wildlife Monographs 163. 48 pp.
Dugger, K.M., F. Wagner, R.G. Anthony, and G.S. Olson. 2005. The 
        relationship between habitat characteristics and demographic 
        performance of Northern Spotted Owls in Southern Oregon. The 
        Condor 107:863-878.
Franklin, A.B., D.R. Anderson, R.J. Gutierrez, and K.P. Burnham. 2000. 
        Climate, habitat quality, and fitness in Northern Spotted Owl 
        populations in northwestern California. Ecological Monographs 
        70:539-590.
Olson, G.S., and several others. 2004. Modeling demographic performance 
        of Northern Spotted Owls relative to forest habitat in Oregon. 
        J. Wildlife Management 68:1039-1063.
                                 ______
                                 
    Ms. Rodd. Chairman Rahall.
    The Chairman. Yes, ma'am.

             STATEMENT OF MS. JUDITH SCHOYER RODD, 
                DIRECTOR, FRIENDS OF BLACKWATER

    Ms. Rodd. Thank you for the opportunity to appear before 
your Committee.
    My name is Judith Schoyer Rodd. I am the Director of 
Friends of Blackwater, a citizen's organization with 1,000 
dues-paying members, and offices in Tucker County and 
Charleston, West Virginia.
    We West Virginians are extremely proud of our beautiful 
mountains, rivers, and rural communities, and we are fierce and 
zealous in their defense and protection. We are particularly 
proud of the West Virginia Highlands, a little bit of Canada in 
Appalachia.
    I am here on behalf of the Save our Squirrel, or SOS 
Coalition, a consortium of 25 groups that have banded together 
to prevent the U.S. Fish and Wildlife Service from removing 
Federal endangered species protections from the West Virginia 
Northern Flying Squirrel, Glaucomys sabrinus fuscus.
    Our coalition member groups include the Wilderness Society, 
the National Wildlife Federation, the American Lands Alliance, 
the Center for Biological Diversity, the Southern Appalachian 
Bio Diversity Project, the Southern Appalachian Forest 
Coalition, Heartwood, Stewards of the Potomac Highlands, and 
the Maryland Conservation Council.
    Ginny, a flying squirrel as we like to call her, and her 
babies are the signature species of our state's highest 
mountains. Ginny is a relic of the last ice age. When the 
glaciers retreated, Ginny's ancestors were isolated on the high 
mountain ridges of six West Virginia counties and one in 
Virginia.
    Ginny has evolved a remarkable lifestyle, surviving a 
demanding and specialized habitat--feeding at night on 
underground fungi that grow in the cool, moist forest and 
mountain tops.
    Ginny has been on the Federal endangered species list since 
1985. In the fall of 2006, officials at the Fish and Wildlife 
Service announced a fast-track de-listing proposal for Ginny. 
The proposal developed in secret without input from official 
recovery plan authors is to strip all Federal protections from 
the West Virginia Northern Flying Squirrel. This proposal 
generated a huge negative public reaction. The agency says that 
the public cannot see 2,325 pages in the agency's files on de-
listing.
    Members of Congress, this isn't national security. What can 
be so secret about a squirrel? The agency's stealth de-listing 
plan is illegal and absurd procedurally and substantively.
    Fish and Wildlife Service admits it has no idea how many 
squirrels there are. The threats to Ginny and her habitat are 
growing, not shrinking. The meager scientific data on Ginny's 
habitat and likely future has been cherry picked and 
mischaracterized to support a clearly pre-determined 
conclusion.
    The leading scientist who has studied the squirrel for 
decades has opposed the de-listing proposal. More than 5,000 
people have sent comments to Fish and Wildlife Service opposing 
the plan, and we have submitted a 50-page comment letter 
refuting every assertion in the agency's proposal.
    People in the agency tell us they have no funding to 
implement the recovery plan, and instead they are planning how 
to scrap the recovery plan altogether. Certainly it would solve 
a lot of problems for everyone but the species and its habitat. 
It is shameful and shocking to learn that what we are 
experiencing in West Virginia is a symptom of a greater 
problem--the attempted rollback of endangered species 
protection across America by political appointees who appear to 
despise the very law they are sworn to uphold.
    We join with Americans everywhere in saying that we will 
not tolerate any rollback of the protections of the Endangered 
Species Act.
    As I speak to you today, Ginny is nursing her babies in a 
birch-barked line nest. Ginny can survive the cold mountain 
nights, but she can't protect herself from Beltway 
machinations. It is up to us to protect Ginny, and all the 
other wonderful parts of the creation.
    Our SOS, Save Our Squirrel Coalition represents millions of 
Americans who expect nothing less from our government, and that 
is why I would like to thank you for the opportunity to come to 
Washington and tell our story. I have included further remarks 
in my written testimony, and will be happy to take any 
questions.
    [The prepared statement of Ms. Rodd follows:]

  Statement of Judith Schoyer Rodd, Director, Friends of Blackwater, 
         on behalf of the ``SOS!--Save Our Squirrel'' Coalition

    Thank you for the opportunity to appear before your committee. My 
name is Judith Schoyer Rodd. I am the Director of Friends of 
Blackwater, a citizen organization with one thousand dues-paying 
members, and offices in Tucker County and Charleston, West Virginia.
    We West Virginians are extremely proud of our beautiful mountains, 
rivers, and rural communities, and we are fierce and zealous in their 
defense and protection. That is why I am appearing today on behalf of 
the ``SOS!--Save Our Squirrel'' Coalition, a consortium of 25 groups 
that have banded together to prevent the U.S. Fish and Wildlife Service 
from removing federal endangered species protection for the West 
Virginia Northern Flying Squirrel, (Glaucomys sabrinus fuscus). Our 
Coalition member groups include The Wilderness Society, American Lands 
Alliance, The Center for Biological Diversity, Southern Appalachian 
Biodiversity Project, Southern Appalachian Forest Coalition, Heartwood, 
Stewards of the Potomac Highlands, and Maryland Conservation Council.
    ``Ginny'' the flying squirrel, as we like to call her, is the 
``signature species'' of our State's highest mountains. Ginny is a 
relic of the last Ice Age. When the glaciers retreated, Ginny's 
ancestors were isolated on the high mountain ridges of six West 
Virginia counties (and one in Virginia.) Ginny has evolved a remarkable 
lifestyle, surviving in a demanding and specialized habitat, feeding at 
night on underground fungi that grow in the cool, moist, forested 
mountaintops.
    Ginny has been on the federal Endangered Species List since 1985. 
In the Fall of 2006, officials at Fish and Wildlife announced a fast-
track ``de-listing'' proposal for Ginny. The proposal, developed in 
secret, without input from official recovery plan authors, is to strip 
all federal protections from the West Virginia Northern Flying 
Squirrel.
    This proposal generated a huge negative public reaction. The agency 
says that the public cannot see 2,325 pages in the agency's files on 
de-listing. Members of Congress--this isn't national security. What can 
be so secret about a squirrel?
    The agency's stealth ``de-listing'' plan is illegal and absurd--
procedurally and substantively. Fish and Wildlife admits it has no idea 
how many squirrels there are. The threats to Ginny and her habitat are 
growing, not shrinking. The meager scientific data on Ginny's habitat 
and likely future has been ``cherry-picked'' and mischaracterized, to 
support a clearly predetermined conclusion. The leading scientist who 
has studied the squirrel for decades has opposed the de-listing 
proposal.
    More than 5,000 people have sent comments to Fish and Wildlife 
opposing the plan, and we have submitted a fifty-page comment letter, 
refuting every assertion in the agency's proposal. Members of Congress, 
people in the agency tell us they have had no funding to implement the 
recovery plan, and instead they are planning how to scrap the recovery 
plan altogether. Certainly it would solve a lot of problems--for 
everyone but the species and its habitat!
    It is shameful and shocking to learn that what we are experiencing 
in West Virginia is a symptom of a greater problem. The attempted 
rollback of endangered species protection across America--political 
appointees who appear to despise the very law they are sworn to uphold. 
We join with Americans everywhere in saying we will not tolerate any 
rollback of the protections of the Endangered Species Act.
    As I speak to you today, Ginny is nursing her babies in a birch-
bark lined nest. Ginny can survive the cold mountain nights, but she 
can't protect herself from Beltway machinations. It's up to us to 
protect Ginny--and all of the other wonderful parts of the Creation. 
Our ``SOS--Save Our Squirrel'' Coalition represents millions of 
Americans who expect nothing less from our government. That's why I 
thank you for this opportunity to come to Washington and tell our 
story. I have included further remarks in my written testimony and I 
will be happy to take any questions.
Issues in FWS implementation of the Endangered Species Act nationally.
    I would like to make the following points about the importance of 
endangered species recovery plans. The Endangered Species Act requires 
FWS to develop recovery plans for endangered species. Recovery plans 
are a roadmap for protection and recovery of the species. For a species 
to be de-listed or downlisted, it must meet the recovery criteria 
contained in the recovery plan.
    The Bush Administration has completed fewer recovery plans than any 
administration since the Carter administration. To date, the Bush 
Administration has completed just 100 recovery plans, compared to 577 
under the Clinton administration and 174 under the first Bush 
administration. Moreover, the Bush administration has interfered with 
development of recovery plans to an unprecedented degree.
    The Apache trout recovery plan is one example. Then-regional-
director Dale Hall went around the Apache Trout Recovery Team to revise 
the Apache Trout Recovery Plan to make it easier to de-list the trout. 
Over the objections of the Team Members the weaker, revised plan was 
adopted. The Northern Spotted Owl recovery plan is another example of 
interference in the development of recovery plans.
    The Bush administration has also ignored recovery plan criteria in 
order to speed downlisting and de-listing of species, and not only in 
the case of the West Virginia northern flying squirrel. For example, in 
April 2006, FWS recommended downlisting the Florida manatee from 
endangered to threatened, even though it admitted the manatee had not 
yet met the downlisting criteria established by a panel of scientists 
in 2001 to assess the manatee's progress, and contained in the recovery 
plan. FWS claimed it ignored those criteria and instead followed the 
legal definitions of ``endangered'' and ``threatened.'' FWS cancelled 
its downlisting plans shortly afterward after an outcry from scientists 
and the public.
    I also wish to address the recently leaked proposed changed Fish 
and Wildlife Service regulations for the Endangered Species Act, which 
exemplify the contrarian approach of the administration to science. The 
administration's draft regulations would limit scientists' ability to 
do what is needed to recover species. This developing regulatory 
package is an attempt to formalize the administration's approach of 
suppressing and distorting endangered species science to get the 
outcomes it wants. Specifically, the proposed changes would tie 
scientific hands regarding decisions about whether to list a species as 
threatened. A species should be listed as threatened if it is likely to 
become endangered within ``the foreseeable future''. Currently, this 
definition is left up to scientists, because it varies case by case. 
The draft regulations would arbitrarily define ``foreseeable future'' 
as ``10 generations or 20 years, at the discretion of the Service'' in 
most cases. What would that mean for species like the WV Flying 
Squirrel, which is threatened in the long term by global warming?
    The draft regulations also improperly devolve authority to the 
states. Currently, States are encouraged to participate in recovery 
planning, listing decisions and critical habitat designations, but the 
U.S. Fish and Wildlife Service maintains the ultimate responsibility 
and authority to make a scientifically-based, non-political decisions. 
It often does so over the objections of state agencies, which are more 
beholden to local political pressure. The Administration's draft 
regulations say ``States, may request and be given the lead role in 
almost every aspect of the Act, including, but not limited to, 
[listing, consultation, and Habitat Conservation Plans.]'' There are 
many reasons, from political pressure in-state to resources of the 
state agency, for caution when handing such responsibilities to the 
states.
Comments On the Proposed De-Listing of the West Virginia northern 
        flying squirrel
    The proposed de-listing rule for the West Virginia northern flying 
squirrel (WVNFS) is deeply flawed and fails to meet the basic 
requirements of the Endangered Species Act for recovery of a species. 
The squirrel is not going to ``fly solo'' as the Fish and Wildlife 
Service claims but instead will glide into extinction under this 
proposal. Here are the problems with the proposal.
    1.  The Administration's process for this de-listing proposal 
violates the Endangered Species Act by ignoring the WVNFS Recovery Plan 
standards and fails to provide a post-de-listing monitoring plan for 
public review and comment.
    2.  There is no credible information on the flying squirrel 
population, which in turn does not allow assessment of population 
trends.
    3.  There is inadequate and misleading information on flying 
squirrel habitat.
    4.  There are flaws in the modeling for flying squirrel presence, 
capture counts and habitat needs.
    5.  The plan relies on the good intentions and interest of others 
to protect the squirrel after de-listing despite an inadequate 
regulatory framework and lack of funding.
    6.  There is inadequate analysis of ongoing and cumulative impacts 
on flying squirrels, including failure to examine the devastating 
effects of:
         Climate Change
         Energy Development
         Private Land Development and Highway Construction
         Timbering
Process Concerns
Ignoring the Recovery Plan is Violation of the Endangered Species Act
    The WVNFS de-listing proposal is the clearest crystallization to 
date of a heretofore background effort by the Bush administration to 
dispense with recovery plans by arguing that objective, measurable, 
concrete de-listing criteria should be overridden by the five non-
criteria-based listing factors. The Fish and Wildlife Service (FWS) 
throws out the Recovery Plan for the squirrel by saying it is too old 
and is irrelevant because ``new light'' has been shed and ``new 
information has become available'' which is never explained. The 
recovery plan was amended as recently as 2001 and the Service has not 
and cannot demonstrate that the recovery criteria are scientifically 
inadequate. The recovery plan's requirement of population stability is 
the bedrock of conservation biology and cannot credibly be replaced by 
an unscientific concept of ``persistence,'' and the recovery plan's 
requirement of perpetual habitat protection is another important 
principle of conservation biology.
    It is quite evident that there is nothing inadequate with the 
recovery criteria in the plan. The de-listing proposal and 5-year 
review certainly do not demonstrate any inadequacies. To the contrary, 
its justification for designating the species as recovered follows the 
same general logic as the plan: the population is healthy, the species 
life history is sufficiently known to be managed, the habitat is 
currently protected, the habitat will be protected into the foreseeable 
future. Furthermore, the de-listing proposal and 5-year review 
repeatedly state that these have been accomplished by implementing the 
plan. However the logic doesn't match the facts on the ground.
    It is no accident the Service tries to denigrate the Recovery Plan 
because it cannot meet the goals for de-listing the squirrel as 
outlined by the Plan. First, the Recovery Plan requires that 80% of the 
core habitat (Geographic Recovery Areas or GRA's) for the squirrel have 
a stable or increasing population for at least ten years. There is no 
data indicating whether the WVNFS is stable, increasing or decreasing. 
How does the Service deal with this problem? It throws out the goal 
because it would prevent de-listing. While not alerting the reader that 
it is violating this provision of the recovery plan, the Service 
substitutes the demographically meaningless and undefined concept of 
``persistence'' to replace population measures. Secondly, the recovery 
plan requires that all core habitat areas be managed for the species in 
perpetuity. The de-listing proposal admits that they are being managed 
under a multiple-use mandate that will result in continued logging of 
important squirrel habitat. And thirdly, the recovery plan requires 
that high elevation forests be protected in perpetuity, while the de-
listing proposal notes that they may be completely destroyed by global 
warming.
Process Out of Order: Need for Comment Period on the Post-De-listing 
        Monitoring Plan
    It is clear from the December 19, 2006 Federal Register Notice and 
the meeting on February 9, 2007 between Friends of Blackwater and the 
FWS that the agency does not have a post-de-listing monitoring plan in 
place. This is a problem for a number of reasons. The ESA requires that 
a post-de-listing monitoring plan be published simultaneous with the 
de-listing rule. Unless and until such a plan is distributed to the 
public, this de-listing rule is arbitrary, capricious, and not in 
accordance with the law.
    Any purported plan has not undergone full public scrutiny. The 
public has a right to comment on the full range of what is proposed in 
de-listing the flying squirrel. In failing to provide the post-de-
listing monitoring plan at this time, the FWS is fragmenting the 
commenting process and denying the public the opportunity to provide 
fully informed comments. A second comment period will be required when 
the post-de-listing monitoring plan is completed. The 5-Year Review and 
the post-de-listing monitoring plan are inextricably linked. In order 
to understand if the assertions of species viability after de-listing 
contained in the 5-Year Review are true, it is necessary to know the 
monitoring steps proposed to ascertain the state of squirrel viability. 
This critical information is missing since the post-de-listing 
monitoring plan has yet to be written.
FOIA Request and the Comment Period Deadline
    Friends of Blackwater submitted a FOIA request (#2006-00988) on the 
West Virginia northern flying squirrel proposed de-listing rule Sept 
10th, 2006. We received materials from that FOIA request on December 
19th. Friends of Blackwater appealed the partial denial of 2,325 pages 
of documents. This appeal was submitted on Feb 2, 2007 (Appeal Number 
2007-060). We received phone confirmation that more documents would be 
released in February. We have yet to receive any of the released 
documents.
    We would like an official explanation for the long delay in the 
release of these materials. When can we expect to receive these 
documents? Withholding documents undermines the rule making process, 
and lessens public trust in federal agencies. It further undercuts the 
ability of the public to make informed comments when denied access to 
legally releasable materials that serve to illuminate the proposed de-
listing. The signatories of this letter request that the comment period 
remain open until all documents have been received and reviewed.
Population Concerns
    The foundation of wildlife biology is understanding the population 
ecology of a species and its habitat. In the absence of population data 
the utmost caution must be observed in considering any action they may 
directly impact a species or its habitat.
    The proposed rule states that de-listing is justified because of 
``an increase in the number of individual squirrels'' (proposal at 
75924). At the time of listing, ten squirrels where known at four 
sites; between 1985 and 2005 there were 1,141 captures at 107 sites 
(proposal at 75926). An unknown portion of the captures were 
recaptures, thus the 1,141 captures do not represent 1,141 squirrels. 
The population size was not known or estimated at any point between 
1985 and 2005. These data do not in any manner support the Service's 
assertion that the population has increased since 1985, nor has the 
Service provided any additional data to support the strange assertion. 
The only valid conclusions one can draw about WVNFS populations trends 
are 1) the population size is not known now or at any time between 1985 
and 2005, 2) the 1985 to 2005 population trend is not known, 3) the 
current population trend is not known, 4) some capture sites have been 
used relatively continuously since 1985, some have been used 
sporadically, some have been abandoned, and many are lacking in 
sufficient data to determine whether use has been consistent, sporadic 
or abandoned between 1985 and 2005, and 5) the Service has completely 
dropped the ball on WVNFS monitoring, having consistently failed over a 
20-year period to fund or establish demographically useful surveying 
methodology.
    A recent analysis of all federally listed species in eight 
northeast states determined that all had persisted and 93% had 
increased in size or remained stable since listing (Suckling 2006). 
Under the proposal's ``persistence'' criteria, all of them should be 
removed from the endangered species list. Some such as the piping 
plover, roseate tern, and green sea turtle have done considerably 
better than persist, they have dramatically increased in size, yet none 
have been proposed for de-listing because, unlike the case of the 
WVNFS, the Service is requiring that the species meet scientific 
recovery criteria established in recovery plans. The Service's 
procedure in this case is to ignore the recovery plan and proceed to 
de-list in the absence of any explicit recovery criteria based on the 
nearly meaningless and poorly defined concept of ``persistence.'' This 
clearly violates the Endangered Species Act requirement that the 
Service scientifically demonstrate the species is recovered.
Data Analysis of Captures from Field Reporting Forms for WVNFS
    To further clarify the number of endangered squirrels captured as 
stated in the Fish and Wildlife Service's proposed rule, we analyzed 
data from a digital database of squirrel captures provided by the West 
Virginia Department of Natural Resources from 1988 through 2006. This 
data analysis concluded there were a total of 1,199 captures during 
this time period with only 79 recaptures. However, there were some 327 
captures that did not include any information about ear tag numbers 
placed on captured squirrels with no clear reason for this lack of 
information. These 327 records represent a distinct anomaly in the 
capture data that seemed to indicate that there may have been as few as 
793 unique captures.
    Due to this and several other inconsistencies within the data 
source we obtained copies of the actual field reporting sheets from the 
West Virginia Department of Natural Resources office in Elkins, West 
Virginia in order to try to further understand these and other 
inconsistencies in the capture data.
    Data from available field capture forms was then entered into an 
Excel Spreadsheet. A total of 1,233 documents representing research 
from years 1985 to 2006 were entered for assessment. As a means of 
trying to keep the information as accurate as possible, forms that were 
illegible (in part or whole), forms that were duplicates of others, as 
well as type written forms that appeared to be summary in nature but 
lacked definitive information were excluded for the purpose of data 
analysis. After excluding data that fell into those categories, capture 
data was assessed for some 1,147 separate events.
    Upon review of the capture data, 104 events had been recorded as 
recaptures and 114 events were recorded as unknown. For the purpose of 
analysis it was assumed that unknown meant it was not possible for any 
number of reasons to determine whether the animal had been captured in 
previous field studies. This led to the determination (based solely on 
the exclusion of captures recorded as recaptured or unknown) that only 
929 events remained as possible unique captures.
    Further analysis of the data included assessment of the assignment 
of tag numbers during capture events. During 275 captures the animal 
was not tagged. Reasons for the lack of tagging ranged from escape of 
the animal to ``not applicable''. These 275 events also included 
several nestlings that were not tagged at the time the data was 
recorded. Without tagging of these animals on initial capture it cannot 
be known if they were ever recaptured. Analysis of the data from these 
1,147 captures presents several inconsistencies in the actual 
collection of the field data.
    To summarize, analysis results show 114 events where initial 
capture or recapture was unknown; 275 instances where a tag number was 
not assigned to an animal; and 104 events that were definitively 
recaptures. When these numbers are considered, unique squirrel captures 
over the last 21 years may only number 654 individuals. Considering 
that the squirrel only has an average life span of four years this is a 
very small number indeed.
Ecological Issues
    In examining the Fish and Wildlife Service's Five-Year Review of 
the status of the squirrel on which the proposed delisting rule is 
based, one anticipates an extensive review of current literature 
related to the WVNFS alongside results of independent research 
performed by the agency, supported by expert opinions. Instead one 
encounters a synthesis of some current and relevant information 
alongside numerous unfounded assertions. Also troubling is the use and 
indeed heavy reliance on unpublished, non-peer reviewed science such as 
Menzel 2003. Instead of a comprehensive and objective review of the 
status of WVNFS, the Five-Year Review fails to address relevant 
ecological information and basic principles of conservation biology. In 
an effort to correct these deficiencies we present some of the 
ecological issues that are ignored by the agency.
      The WVNFS has been documented and is known to inhabit 
deciduous forests at lower elevations and should not be considered an 
obligate to spruce fir forests.
      The WFNS is typically considered to inhabit forests with 
older growth characteristics such as an all-aged forest structure, 
vertical diversity, down woody debris, and a high level of diversity of 
plants, animals, fungi, mosses, and lichens. Although the WVNFS is 
associated with this habitat it can exists across a broad range of 
forest habitats but needs forests with older growth conditions in 
enough places across its range to persist.
      Protecting only old growth spruce forests will not ensure 
the protection of northern hardwoods. Northern Hardwoods communities 
must also be protected in reserves of sufficient size. Without knowing 
the spatial needs of the WVNFS it is presumptuous to assume that just 
protecting small portions of forest will be sufficient to recover the 
species.
      It is essential to not only maintain reserves of spruce 
and northern hardwoods but also to retain their connectivity across the 
landscape. Any loss of connectivity via road building, large-scale 
logging, etc. should be considered as a substantial threat that has not 
been abated at the scale appropriate to recover the species. Studies 
indicate that roads can have major impacts to the ability of flying 
squirrels to move across the landscape (Weigl et al. 2002).
      Other forest health issues that compound the threats to 
the WFNVS include: the loss of Eastern Hemlock to the Hemlock Wooly 
Adelgid, the loss of Fir to Balsam Wooly Adelgid, the loss of Beech due 
to Beech bark Disease, and the impacts of Oak Decline in northern 
hardwood communities. Even if it were true that all threats at the time 
of listing the WVNFS have been abated (which they most certainly have 
not) there are new threats which are growing that may have untold 
consequences for the WVNFS. De-listing this species now would strip 
away the protections offering it the best chance for survival.
Red Spruce
Role of Spruce in Boreal Habitat
    High elevation spruce in the Southern Appalachians is a relict of 
widespread spruce occurrence during the Pleistocene. However, spruce is 
just one component of this habitat. The proposed de-listing and the 
modeling on which the de-listing proposal relies focus on spruce to the 
exclusion of other components of boreal habitat. It is simplistic to 
imagine that spruce and elevation by themselves determine preferred 
habitat for G. sabrinus fuscus.
Habitat Age-Class and the Squirrel
    One of the most consistent factors associated with G. sabrinus 
fuscus is older growth trees and old growth conditions. This should be 
a primary focus of recovery efforts. However, this is in direct 
opposition to efforts to ``restore'' spruce forests, as this is likely 
to involve harvesting mature tree to be replaced with new regeneration. 
Even if spruce regeneration is successful, which is highly unlikely 
under a climate change scenario, these immature trees are unlikely to 
provide good habitat in any foreseeable future.
Food Sources
    The use of food sources by Glaucomys sabrinus fuscus is critical to 
an understanding of their habitat use. One study of the G sabrinus 
fuscus fecal pellet contents, done by Donna Mitchell of the WV DNR in 
1998 gives us some insight into what the squirrel eats. Entitled 
``Spring and Fall Diet of the West Virginia Northern Flying Squirrel'' 
it was published by the American Midland Naturalist in 2001. The 
pellets studied were collected from 115 captured squirrels from 1989 to 
1991 in the spring and fall. No information was collected for winter 
and summer food sources. The spring samples show equal consumption of 
buds from red spruce and beech trees and fungus associated equally with 
both conifer and broadleaf trees. In the fall, fungi were more widely 
eaten, as were beechnuts. Lichen and mosses were also found in the 
samples. This small study supports the contention that the squirrel 
forages in both northern hardwood and conifer habitat and is not 
limited to red spruce forest types.
Model Used to Plan Management is Flawed
    Over simplistic models of habitat requirements cannot be used 
solely to justify the de-listing of the WVNFS. The interpretation of 
this information has led the FWS to draw conclusions on the ecology of 
WVNFS and its population that are unsubstantiated. The de-listing 
proposal for Glaucomys sabrinus fuscus is heavily based on habitat 
modeling (Menzel, 2006). While this modeling is useful as an 
interesting addition to characterizing G. sabrinus fuscus, the study 
should not be promoted as definitively characterizing the habitat of G 
sabrinus fuscus. The model contains untested assumptions, is based on 
limited data, is a simplified model that does not account for important 
variables in the species' biology, and remains an unverified and 
untested model. The model is also being applied outside of its intended 
scope and for purposes that are not supported by the study that the 
model is based on.
Threats to squirrel from second home and energy development, logging, 
        road building, and climate change
    Road building, mining, gas development, industrial wind and second 
home development are all increasing and pose significant threats to the 
WVNFS due to habitat fragmentation and removal which the Fish and 
Wildlife Service ignores.
    Threats to the squirrel from logging continue on both private and 
public land. While the Monongahela National Forest claims to have 
protected the squirrel from logging under their old and new management 
plans, they in fact allow logging in all hardwood stands occupied by 
the squirrel as well as logging in mix hardwood and conifer stands to 
encourage red spruce to dominate the canopy. They also allow logging to 
thin red spruce stands. The Fish and Wildlife Service's claim that the 
Forest Service's management plans protect the WVNFS has never been 
substantiated.
    There is a strong scientific consensus that spruce-fir forests will 
disappear from the Southern and Central Appalachians (and probably the 
United States) under even the most conservative global warming models. 
While some components of the northern hardwood forest will likely 
remain in the region, it will likely cease to function as a discrete 
ecological community. This will likely result in the extinction of the 
WVNFS. In the medium term (i.e., next 100 years), global warming is 
probably the greatest threat to the squirrel's existence, yet the de-
listing proposal provides only a cursory glance at the issue. This 
violates the Endangered Species Act requirement to employ the best 
available scientific information in making de-listing decisions. The 
proposal's passing reference, moreover, is miscited, misinterpreted, 
and relies on criteria disallowed by the Endangered Species Act. The 
final decision must provide a thorough review of the large body of 
published scientific studies examining the likely impact of global 
warming on the WVNFS and its habit. (See attachment III)
Experts Excluded from Process
    Research professors Dr. Peter Weigl and Dr. John Pagels, who were 
on the Appalachian northern flying squirrel Recovery Team and had 
developed much of the methodology to carry out the recovery goals, were 
not invited to work on the de-listing process. They were not told that 
de-listing was being considered, only downlisting. Their years of 
research would have been invaluable to the Fish and Wildlife Service 
personnel working on the Five Year Review of the West Virginia northern 
flying squirrel. However, they were not consulted and much of their 
research was not used. Dr. Weigl made clear in his comments submitted 
for this comment period that he is opposed to de-listing Glaucomys 
sabrinus fuscus. Dr. Pagels raised a number of important concerns about 
de-listing as well
Conclusions and Recommendations
    We believe that the Fish and Wildlife Service has no scientific 
basis for de-listing, let alone downlisting to threatened the WVNFS. We 
believe that the shoddy work revealed in the proposed rule to de-list 
and the Five Year Review show an attempt by the current administration 
to move away from the hard science of recovery plan criteria and to de-
list any species that has become a bother. This proposal has undermined 
the public's confidence in the scientific work of the Service. We ask 
this committee to demand that the Service convene a blue ribbon panel 
of independent scientists to review this proposal and the data that it 
is based on and come up with a new plan for the WVNFS that will ensure 
its protection into the future. Without such a plan it will not ``fly 
solo'' but come crashing to the ground and glide into extinction.

[GRAPHIC(S) NOT AVAILBLE IN TIFF FORMAT]

 Response to questions submitted for the record by Ms. Judith Rodd

(1)  Ms. Rodd, you talk about leaked proposed changes to the Fish and 
        Wildlife Service's ESA regulations. The Director of the Fish 
        and Wildlife Service in a letter to Chairman Rahall has 
        indicated that these ``draft regulations'' were ``never adopted 
        by the Department or the U.S. Fish and Wildlife Service and 
        represented just one point of view on the issue''. Do you 
        believe the Service should have any regulatory authority to 
        modify how the Endangered Species Act works?
    The Fish and Wildlife Service has no ``regulatory authority'' to 
modify the substantive requirements and protections of the ESA without 
Congressional action. The leaked draft regulations go far beyond any 
permissible interpretation or application of the ESA. They are 
therefore illegal on their face
(2)  You seem to object to the notion that authority be devolved to the 
        states. Doesn't the Governor and the West Virginia legislature 
        care about the West Virginia Northern Flying Squirrel? Based on 
        the fact that the federal government has recovered less than I 
        percent of the 2,400 listed species, don't you think you might 
        have a better outcome at the state level?
    The federal Endangered Species Act has not only prevented the 
extinction of 99% of all species ever listed, it has also put the 
majority of listed species on an upward recovery trend. The Fish and 
Wildlife Service found in 2004 that of those species with a known 
trend, 68% are stable or improving. When properly funded and 
implemented by the federal government, the Endangered Species Act is 
successful at its core purpose.
(3)  You mentioned in your testimony that the Service has no funding to 
        implement the recovery plan for the West Virginia Northern 
        Flying Squirrel. Do you know how many species have recovery 
        plans? Do you know what the Congressional appropriation was for 
        ESA Recovery efforts in FY'06? Do you know that figure was $16 
        million more than the last year of the Clinton Administration?
    Currently, 1312 species are listed as endangered or threatened, of 
which 1077 have approved recovery plans. While appropriations for 
recovery have certainly increased during the Bush administration, the 
Bush administration has used these funds far less efficiently than did 
previous administrations. The Clinton administration completed 577 
recovery plans over eight years. The Reagan administration completed 
243 plans over eight years. To date, the Bush administration has 
completed only 100 plans over six years.
    In the face of this need and its own poor record at completing 
recovery plans, the Bush administration has consistently requested cuts 
to recovery funding. In FY'06 Congress appropriated $73 million for 
endangered species recovery--$9 million more than the amount the 
administration requested that year. In FY'07 the administration once 
again requested a cut to recovery funding, requesting $65 million for 
recovery. The House of Representatives again demonstrated that Congress 
values endangered species recovery more than the White House by 
approving $70.6 million for recovery in FY'07.
(4)  If this species has been listed since 1985, what has happened for 
        the past 22 years?
    Under agreements with the U.S. Fish and Wildlife Service, the West 
Virginia Department of Natural Resources and the Monongahela National 
Forest have conducted nestbox surveys for the flying squirrel. Out of 
the 4,000 nestboxes put up only 2% were occupied by the squirrel. 
Because the nest box survey protocol differed from year to year and the 
surveys were not done on a regular basis the results cannot be used to 
calculate the squirrel population.
(5)  One of the reasons that the Fish and Wildlife Service has a lack 
        of financial resources is the endless number of lawsuits. While 
        I am sure you support lawsuits, since members of your coalition 
        filed many of them, but wouldn't it be better for the 
        plaintiffs to take their financial judgements and to spend some 
        of that taxpayer money helping Ginny and her kids and not just 
        hiring more attorneys? Are you for Ginny or more lawyers?
    In passing the Endangered Species Act, Congress specifically 
recognized the need for citizen enforcement of the Endangered Species 
Act by including a citizen suit provision. The need for this provision 
has never been more clear. The present administration has taken almost 
no action to protect the nation's endangered species except under court 
order. Indeed, all of the 57 species newly protected by this 
administration have followed court order.
    Moreover, the administration's claims that litigation is draining 
the coffers is almost entirely baseless. Attorneys fees paid to 
conservation organizations that successfully sue to force protection of 
endangered species are not paid out of the Fish and Wildlife Service's 
budget. Instead, they come from the budget of the Department of 
Justice. Reflecting this fact, the Fish and Wildlife Service's own 
budgetary documents fail to show substantial expenditures on litigation 
related expenses beyond carrying out the duties that are required under 
the law and necessary for the conservation of species.
    Rather, records show that at the end of 2005, the Fish and Wildlife 
Service found themselves in the awkward position of not having spent 
over $500,000 dollars that they had set aside for litigation related 
expenses precisely because attorney's fees are not paid from their 
budget. This money was instead spent on making findings to determine if 
additional species required the protections of the Act, which is one of 
the agency's primary duties.
(6)  You state in your written testimony that it would be improper to 
        devolve authority to the states with regard protecting 
        endangered species. However, states have always has primacy 
        with regard to wildlife management in their states. Has West 
        Virginia adopted any state management measures to protect the 
        flying squirrel?
    The West Virginia state code gives the state primacy over wildlife. 
However the state has no state Endangered Species Act (ESA) but instead 
has an agreement with the United States Fish and Wildlife Service which 
charges that agency with enforcement of the ESA and the funding of 
research on endangered species. The West Virginia Department of Natural 
Resources does much of the field work on endangered species using 
federal funds and submits reports to Fish and Wildlife.
(7)  In your written testimony, you list road building, mining, gas 
        development, industrial wind, and second home development as 
        significant threats to the flying squirrel. These are actions 
        controlled by the State, correct? With the limited resources 
        the Fish and Wildlife Service has to implement the ESA, 
        shouldn't the state be responsible and take actions to limit 
        the effect these activities have on the flying squirrel?
    Much of this work is regulated by the federal government such as 
road building and mining. The state has very limited funding to do the 
work. and would be unable to carry out the task.
(8)  How does mining effect the flying squirrel? Are you recommending 
        that mining, gas development and wind energy not be pursued in 
        West Virginia as alterative fuel sources?
    In some cases strip mining removes the forest habitat of the West 
Virginia northern flying squirrel. Mining and energy development are 
continuing with the West Virginia northern flying squirrel on the 
endangered species list. The Fish and Wildlife Service staff consults 
with companies and individuals about the effects of their activities on 
the squirrel and outlines ways to avoid harm to the squirrel and in 
some cases suggests mitigation measures.

Judith Holyoke Schoyer Rodd
Director, Friends of Blackwater
501 Elizabeth St., Room 3
Charleston, WV 25311
[email protected]
Charleston Office Phone 304-345-7663
Charleston Office Fax 304-345-3240
                                 ______
                                 
    The Chairman. Mr. Young.

            STATEMENT OF MR. JOHN YOUNG [RETIRED], 
           BIOLOGIST, U.S. FISH AND WILDLIFE SERVICE

    Mr. Young. Mr. Chairman, my name is John Young. I was a 
biologist with NOAA Fisheries and the U.S. Fish and Wildlife 
Service for my entire 30-year career. My work with both 
agencies was relative to implementation of the Marine Mammal 
Protection Act and Endangered Species Act. I retired in 2005.
    In 2002, I was selected as the first and today the only 
Bull Trout coordinator for the Fish and Wildlife Service. My 
understanding is that the Pacific Region of the Fish and 
Wildlife Service is currently planning to refill this position 
after nearly a two-year vacancy.
    As Bull Trout coordinator, my job was to serve as a conduit 
between field staff of the Fish and Wildlife Service, the 
scientific community, the public, and the managers of the Fish 
and Wildlife Service in preparing three documents required 
under the ESA after a species is listed as threatened or 
endangered: a recovery plan, a critical habitat designation, 
and a five-year review of the species status.
    All of the information I am providing to you today, 
including my written testimony, is reflected in the respective 
administrative records for these three initiatives. The 
administrative records are available from the Pacific Region of 
Fish and Wildlife Service in Portland, Oregon.
    To prepare the recovery plan, the Fish and Wildlife Service 
established recovery teams across the range of Bull Trout in 
Washington, Oregon, Nevada, Idaho, and Montana. Recovery teams 
were made up of biologists and other stakeholders representing 
other Federal agencies such as the Forest Service and Bureau of 
Land Management, state fish and wildlife agencies, private 
timber companies, private utility companies, private ranchers 
and farmers, and others.
    The recovery plan was drafted and released for public 
comment. The draft plan was also peer reviewed by fishery 
biologists identified by the American Fishery Society. Peer 
reviewers included U.S. Forest Service research biologists, 
university professors, biologists working for private timber 
industry corporations, biologists working for state fish and 
wildlife agencies, and others, and included some of the most 
prominent Bull Trout researchers as reflected by the current 
scientific literature.
    Public and peer review comments were considered and the 
draft recovery plan was edited accordingly. To date, the final 
recovery plan for Bull Trout has not been released.
    To prepare the critical habitat proposal, a team of Fish 
and Wildlife Service biologists worked with recovery team 
members to describe habitat necessary to support the recovery 
of those populations identified in the draft recovery plan as 
essential to the survival and recovery of Bull Trout.
    Again, public comment was solicited and peer review 
initiated, and again peer review affiliations ranged from 
Federal and state agencies to private timber companies and 
academia.
    Based on public and peer review input, the amount of 
critical habitat proposed for Bull Trout was reduced 
significantly in the draft final designation submitted by staff 
biologists to Fish and Wildlife Service mangers.
    An economic analysis of the effects of the critical habitat 
proposal was prepared concurrently by a private contractor and 
released for public comment. At the direction of the Fish and 
Wildlife Service Washington office some 50 pages of this 
analysis describing the potential economic benefits of Bull 
Trout critical habitat designation were deleted. Therefore, the 
economic analysis only described potential negative economic 
effects of the proposed designation.
    The economic analysis also, by policy direction, vastly 
overestimated the potential negative economic effects of 
critical habitat designation by including all costs incurred 
pursuant to the conservation of Bull Trout since listing in 
1998, and by double and triple counting costs of conservation 
measures that benefit multiple species of listed fish, but were 
assessed in full to each of the respective species.
    Subsequent dialogue with Fish and Wildlife Service 
Washington office, and the Office of the Assistant Secretary 
for Fish, Wildlife and Parks resulted in numerous categories of 
exclusions of areas from the Bull Trout critical habitat 
designation. None of these exclusions were based on science, 
and the rationale for several categories of exclusions was 
either unclear or illogical.
    The final critical habitat designation for Bull Trout was a 
fraction of that presented to Fish and Wildlife Service 
managers following public comment and peer review, and the 
result was a designation of scattered patches of critical 
habitat across the Pacific Northwest, not reflective of the 
connected habitat representing the life history requirements of 
this species.
    Accordingly, the critical habitat designation is currently 
being litigated by several conservation organizations.
    In 2004, a five-year review of the status of Bull Trout was 
initiated in response to a request from the Governor of Idaho. 
For this project, a panel of experts was convened to assist 
Fish and Wildlife Service biologists and managers in designing 
a process for both collecting information relative to the 
status of Bull Trout, and also for subsequent decisionmaking.
    Panel members were chosen through a literature searching 
process with the most qualified individuals were identified 
based on their contributions to the scientific literature. 
Panel member affiliations included the Fish and Wildlife 
Service, academia, and the U.S. Geological Survey, and others.
    As was the case with the draft recovery plan and the 
critical habitat proposal, the draft five-year review was then 
submitted for peer review by scientists from a diversity of 
affiliations. The result of the review was that some 
populations of Bull Trout were in an improved conservation 
status since listing. Some populations were in a degradated 
conservation status, and overall the populations of Bull Trout 
in the United States were still appropriately listed as 
threatened under the ESA.
    To date, this review has not been released, and my 
understanding is that the Fish and Wildlife Service intends to 
begin work on a new five-year review for Bull Trout.
    The intent in responding to the ESA requirements for 
preparing a recovery plan, a critical habitat designation and a 
five-year review was to create a transparent scientifically 
based process that the public, the scientific community, and 
the mangers in the Fish and Wildlife Service and the Office of 
the Assistant Secretary for Fish, Wildlife and Parks could 
track.
    The transparent process and the scientific basis for these 
initiatives are reflected in the administrative records held by 
the agency, and available for public and congressional review. 
The failure to finalize these initiatives consistent with a 
carefully developed processes and peer reviewed scientific 
information I have described has resulted in a lowering of 
morale among Fish and Wildlife Service scientific staff; a 
reduced respect for the work of the agency from scientific 
peers, and the public; the willingness of the scientific 
community to assist the Fish and Wildlife Service in such 
initiatives in the future; and a tremendous waste of labor and 
associated budget within the Fish and Wildlife Service.
    Thank you.
    [The prepared statement of Mr. Young follows:]

           Statement of John A. Young, Biologist (Retired), 
           NOAA Fisheries and U.S. Fish and Wildlife Service

    This statement is submitted by John A. Young. I was a biologist 
with NOAA Fisheries and the U.S. Fish and Wildlife Service for my 
entire 30-year career. My work with both agencies was relative to 
implementation of the Marine Mammal Protection Act and the Endangered 
Species Act (SEA). retired in 2005.
    In 2002 I was selected as the first, and to date the only, Bull 
Trout Coordinator for the U.S. Fish and Wildlife Service (USFWS). My 
understanding is that the Pacific Region of the USFWS is currently 
planning to re-fill this position after a nearly two year vacancy.
    As Bull Trout Coordinator, my job was to serve as the conduit 
between field staff of the USFWS. the scientific community, the public, 
and the managers of the USFWS in pre-paring three documents required 
under the SEA after a species is listed as threatened or endangered: a 
Recovery Plan, a Critical Habitat Designation, and a 5-year review of 
the species status. All of the information I am providing to you today 
is reflected in the respective administrative records for these three 
initiatives. The administrative records are available from the Pacific 
Region of the USFWS in Portland, Oregon.
Bull Trout Recovery Plan
    To prepare the Recovery Plan the USFWS established Recovery Teams 
across the range of bull trout in Washington, Oregon, Nevada, Idaho and 
Montana. Recovery Teams were made up of biologists and other 
stakeholders representing other Federal agencies, such as the Forest 
Service and Bureau of Land Management, State fish and wildlife 
agencies, private timber companies, utility companies, private ranchers 
and farmers, and others. The recovery plan was drafted and released for 
public comment. The draft plan was also peer reviewed by fishery 
biologists identified by the American Fisheries Society. Peer reviewers 
included U.S. Forest Service research biologists, university 
professors, biologists working for private timber industry 
corporations, biologists working for State fish and wildlife agencies, 
and others, and included some of the most prominent bull trout 
researchers as reflected by the current scientific literature. Public 
and peer review comments were considered and the draft recovery plan 
was edited accordingly. To date the final recovery plan for bull trout 
has not been released.
Bull Trout Critical Habitat Designation
    To prepare the critical habitat proposal, a team of USFWS 
biologists worked with recovery team members to describe habitat 
necessary to support the recovery of those populations identified in 
the draft recovery plan as essential to the survival and recovery of 
bull trout. Again, public comment was solicited and peer review 
initiated and, again, peer reviewer affiliations ranged from Federal 
and State agencies to private timber companies and academia. Based on 
public and peer review input, the amount of critical habitat proposed 
for bull trout was reduced significantly in the draft final designation 
submitted by staff biologists to USFWS managers.
    Subsequent dialogue with the USFWS Washington Office and the Office 
of the Assistant Secretary for Fish, Wildlife and Parks resulted in 
numerous categories of exclusions of areas from the bull trout critical 
habitat designation. None of these exclusions were based on science, 
and the rationale for several categories of exclusions was either un-
clear or illogical.
    For example, the entire ``action area'' of the Federal Columbia 
River Power System (FCRPS) (i.e., the Federal hydro power projects on 
the Columbia and Snake Rivers) was deleted from the critical habitat 
designation. ``Action area'' is a term of art under the SEA and 
indicates the scope of habitat that a species that is affected by 
project operations occupies. So, if an adult bull trout migrates 
through a dam on the mainstream Columbia River and is potentially 
affected by dam operations, the ``action area'' includes the spawning 
grounds high up in the watershed (sometimes a hundred miles or more 
distant from the mainstream river) where the adult fish was born and 
returns to reproduce. The problem with excluding these areas from a 
critical habitat designation is that the operators of the FRPS--the 
U.S. Army Corps of Engineers, the Bureau of Reclamation, and the 
Bonneville Power Administration--only control operations on the 
mainstream Columbia and Snake Rivers. These agencies have absolutely no 
discretionary authority over upstream habitat occurring on private 
farms and ranches, State lands, or Federal lands managed by the Forest 
Service or Bureau of Land Management. While an argument might be made 
that exclusion of the mainstream Snake and Columbia River areas 
directly managed by the agencies operating the FRPS is appropriate, 
blanket exclusion of the FFCRPS ``action area'' is completely 
illogical. USFWS staff identified this category of exclusion as 
inappropriate, but USFWS managers were overruled by the Office of the 
Assistant Secretary for Fish, Wildlife and Parks.
    Another example of an illogical, unsupportable category of 
exclusion is that of all reservoirs within the range of bull trout 
habitat. There are hundreds of large and small reservoirs built for 
irrigation water storage, flood control, and hydro power generation in 
the Pacific Northwest. Operators of these reservoirs include Federal 
Agencies, private utility companies, private associations of ranchers 
and farmers, and State and local governments. Operational plans for 
these reservoirs are diverse, depending on their purpose. Some, but 
certainly not all, of the operators of reservoirs have consulted with 
the USFWS under the SEA and have accordingly considered the 
conservation of bull trout when designing their annual operation plans. 
Most pertinent to this discussion is that the exclusion of all 
reservoirs within the scope of proposed bull trout critical habitat was 
made at the direction of the Office of the Assistant Secretary for 
Fish, Wildlife and Parks without an analysis of the status of 
individual operational plans, any associated conservation measures, and 
the effect of those plans and measures on the habitat necessary for the 
continued survival and recovery of bull trout. Again, the efficacy of 
this blanket exclusion was questioned at the staff level, but again 
USFWS managers were directed to include this exclusion category in the 
final critical habitat rule by the Office of the Assistant Secretary 
for Fish, Wildlife, and Parks.
    The final critical habitat designation for bull trout was a 
fraction of that presented to USFWS managers following public comment 
and peer review, and the result was scattered patches of habitat across 
the Pacific Northwest not reflective of connected habitat. representing 
the life history requirements of this species. Accordingly, the 
critical habitat designation is currently being litigated by several 
conservation organizations.
Bull Trout Proposed Critical Habitat Economic Analysis
    An economic analysis of the effects of the critical habitat 
proposal was prepared concurrently by a private contractor and released 
for public comment. At the direction of the USFWS Washington Office, 
50+ pages of this analysis describing the potential economic benefits 
of the proposed bull trout critical habitat designation were deleted. 
Therefore, the economic analysis only described potential negative 
economic effects of the proposed designation.
    The data presented in the Economic Analysis has also been skewed, 
by policy, to over-estimate costs associated with a critical habitat 
designation for bull trout. For example, fish passage facilities on the 
hydro power projects in the Pacific Northwest were built long before 
bull trout were listed as threatened and were designed primarily to 
pass salmon and steelhead from their spawning grounds to the Pacific 
Ocean and back again. These facilities are expensive to build and 
maintain, and do benefit some populations of migratory bull trout, as 
well as the salmon and steel head they were originally built for. 
However, in the economic analysis of proposed bull trout critical 
habitat the full cost of construction and operation has been attributed 
as a cost relative to the bull trout critical habitat designation. 
There was no attempt to pro-rate costs by species based on the degree 
of benefit. More astounding is the fact that these same full costs of 
construction and operation are also reflected in the NOAA Fisheries 
Economic Analysis of proposed critical habitat for species of salmon 
and steelhead under that agency's jurisdiction. The public, therefore, 
is being intentionally misled to believe that the costs of designating 
critical habitat and the general conservation of listed species of fish 
in the Pacific Northwest are multiples of the actual costs incurred.
    Another troubling policy currently being implemented is direction 
to include all costs associated with the conservation of a species 
since listing in the economic analysis of a proposed critical habitat 
designation. For bull trout, which were listed in 1998, some 5 years 
prior to the initiation of the critical habitat designation, the costs 
include all conservation efforts implemented during this 5-year period. 
This policy of including all costs within a document prepared 
ostensibly to address the critical habitat proposal, and clearly titled 
as relevant only 10 the critical habitat proposal, is disingenuous at 
best.
Bull Trout 5-year Review
    In 2004, a 5-year review of the status of bull trout was initiated 
in response to a request from the Governor of Idaho. For this project, 
a panel of experts was convened to assist USFWS biologists and managers 
in designing a process for both collecting information relative to the 
status of bull trout and also for subsequent decision-making. Panel 
members were chosen through a literature searching process where the 
most qualified individuals were identified, based on their 
contributions to the scientific literature. Panel member affiliations 
included the U.S. Forest Service, academia, the U.S. Geological Survey 
and others.
    As was the case with the draft Recovery Plan and proposed Critical 
Habitat designation, the draft 5-year review was then subjected to peer 
review by a diverse group of scientists, and the document was edited 
accordingly. The result of the 5-year review was that some populations 
of bull trout were in an improved conservation status since listing, 
some populations were in a degraded conservation status, and overall 
the populations of bull trout in the United States were still 
appropriately listed as threatened under the SEA. To date, this review 
has not been released, and my understanding is that the USFWS intends 
to begin work on a new 5-year review for bull trout The inescapable 
perception is that policy makers in the Office of the Assistant 
Secretary are looking for a different result.
Summary
    The intent in responding to the SEA requirements for preparing a 
recovery plan, a critical habitat designation, and a 5-year review was 
to create a transparent, scientifically-based process that the public, 
the scientific community, and managers in the USFWS and the Office of 
the Assistant Secretary for Fish, Wildlife and Parks could track. The 
transparent process and the scientific basis for these initiatives are 
reflected in the administrative records held by the agency and 
available for public and congressional re-view. The failure to finalize 
these initiatives based on the carefully developed processes and peer 
reviewed scientific information I have described has resulted in a 
lowering of morale among USFWS scientific staff, a reduced respect for 
the work of the agency from scientific peers and the public, a reduced 
willingness of the scientific community to assist the USFWS in such 
initiatives in the future, and a tremendous waste of labor and 
associated budget within the USFWS.
Observations on the Critical Habitat Process in General
    It is clearly stipulated in the SEA that critical habitat be 
designated within a year of a listing of a species as threatened or 
endangered. The unwritten policy of the USFWS under both the current 
administration and the preceding administration is that critical 
habitat is of little value beyond the consultation requirements 
associated with listing, and critical habitat development is not 
initiated unless and until the agency is sued to do so. Because the SEA 
is abundantly clear in this regard, the agency almost never prevails in 
such litigation and is routinely directed by the court to work out a 
schedule for completing critical habitat designation with the 
litigants.
    This unwritten policy of resisting a basic requirement of the SEA 
represents poor management at its worst. If the intent is to influence 
Congress to modify the requirements of the SEA, it has not been 
successful. What has resulted is a pattern of reactive management where 
the agency is litigated, forced to work out a schedule for completing a 
critical habitat proposal where planning alternatives are limited, and 
then forced to refocus existing labor and budgetary resources to meet 
the mandates of the court. The court costs of successful litigants that 
the agency must assume, negative publicity to the agency resulting 
'from the public perception that the agency is not doing its job, and a 
demoralized work force associated with this ``head buried in the sand'' 
management approach are the unnecessary and avoidable by products of 
such poor management practices.
                                 ______
                                 

      Response to questions submitted for the record by John Young

Questions from the Minority Members
    1.  I do not disagree with former Secretary Babbitt and former 
Director Clark relative to the regulatory value of critical habitat. 
The listing of a species results in regulatory protections that are not 
particularly enhanced by the designation of critical habitat (except in 
the rare case where unoccupied critical habitat is designated to 
provide for the recovery of a species whose range has been severely 
depleted). The identification of critical habitat, however, does serve 
to inform and educate the public as to specific areas that are 
important to the survival and recovery of listed species. Despite 
agency views on the value of critical habitat, it is important for the 
agency to follow the law and avoid unnecessary lawsuits and the public 
perception that the agency is not interested in fulfilling its mission 
to implement the ESA.
    2.  Yes. However, the balancing must be based on sound economic and 
other considerations with supporting logic. In the case of bull trout, 
many of the considerations were illogical, as I have documented in my 
written testimony and which is clearly reflected within the 
administrative records for the bull trout critical habitat initiative.
    3.  Yes. In the cases of bull trout recovery planning, critical 
habitat designation, and the 5-year review we sought peer review from 
expert scientists with a variety of backgrounds and affiliations to 
work through any such disagreements. Scientific peer review is the 
mechanism to work through any such situations where scientists 
disagree.
    4.  Yes. However, if the policy maker has two opinions from two 
scientists, it would be appropriate to seek further input from 
additional peer reviewers to ensure that all facets of the scientific 
disagreement have been appropriately reviewed.
    5.  Yes. Federal scientists must document their findings based on 
the scientific literature and, where appropriate, expose those findings 
to scientific peer review so that the entire basis for any conclusions 
are transparent to the public, other scientists, and policy makers.
    6.  Yes.
    7.  Yes, definitely. Critical habitat is defined in the ESA as 
habitat necessary to provide for the ``conservation'' of the species in 
question.
    ``Conservation'' is defined in the ESA as those measures necessary 
to provide for the survival and recovery of the species in question. 
One would not expect to recover a species if the life history 
requirements that have resulted in the evolution of the species over 
thousands of years are ignored.
                                 ______
                                 
    The Chairman. Mr. Horn.

          STATEMENT OF MR. WILLIAM P. HORN, ATTORNEY, 
                BIRCH, HORTON, BITTNER & CHEROT

    Mr. Horn. Thank you. Mr. Chairman, my name is William Horn, 
and I appreciate the opportunity to appear today to discuss the 
Endangered Species Act, and the interactions of policy and 
science in its implementations. Let me add that my comments 
arise from my prior tenure as Assistant Secretary of the 
Interior for Fish, Wildlife and Parks, my present service on 
the National Academy of Sciences' Environmental Board, and my 
long-time representation of the U.S. Sportsmen's Alliance.
    The implementation of the ESA from my perspective both as 
an insider and also as an private practitioner over the last 15 
plus years is always an exercise in both policy and science, 
and frankly, it can't be any other way.
    One incontrovertible fact is that Congress has never 
provided the Department or the Service with the infinite 
resources to administer the program, and as a result, program 
administrators, regardless of their political stripe or their 
status as political or careers, are compelled to make 
unescapable policy choices regarding which species to focus on 
first, which recovery programs to pursue, which listing 
decisions take priority, and so long. There just simply aren't 
the staff and the dollars to do everything all at the same 
time. Choices need to be made.
    Science plays, obviously, an important role in making those 
choices, but it is my submission that only the most naive would 
conclude that science always provides clear answers for every 
ESA decision. For example, in Florida's Everglades, the water 
management regime necessary to bring back the Cape Sable 
Seaside Sparrow adversely impacts two other listed birds, the 
Everglade's Kite and Wood Stork. Someone has to make a policy 
decision appropriately informed by relevance science about 
which water management approach should be pursued, which one of 
those three species gets priority over the others because there 
is no simple way to pick something that takes care of all three 
simultaneously.
    Now, these types of limitations became very evident to me 
on an issue that showed up on my desk in 1986. At that time 
only seven California Condors remained in the wild and they 
were dying regularly. Half of the condor recovery team argued 
that the remaining birds needed to be captured, and to be made 
part of a captive breeding program then untested. The other 
half of the recovery team were adamant that captive breeding 
was scientifically unproven. The birds should be allowed to 
remain in the wild, and even to die with dignity in the wild, 
as one member put it.
    Ultimately, I made a policy decision to try the unproven 
science, capture the remaining birds, and embark on a breeding 
program, an effort that was delayed while we were sued by 
environmental plaintiffs who argued that that decision was 
contrary to accepted science.
    Now, as the Committee may know, the captive breeding 
program turned out to be an enormous success, and had we waited 
for some kind of scientific consensus to arise from the 
battling members of the recovery team or we had accepted the 
environmentalists view of good science at that time, wild 
condors would likely be extinct today.
    Now, the obvious thesis of this hearing is that this 
administration is somehow singularly responsible for making a 
variety of ESA decisions to not list in contravention of 
scientific information.
    We would submit that a proposed listing, earlier related, 
represents another example of an environmental gesture 
triumphing over science, and that concerns the proposed listing 
of Polar Bears. And although the bear populations are at 
historic highs throughout the Arctic, and Canada successfully 
manages these populations, the Service is no proposing to list 
all Polar Bears as threatened based on one disputed model that 
predicts major shrinkage of sea ice in 45 years.
    The U.S. sporting community, Canada, the Alaska Department 
of Fish and Game and others have reacted strongly, contending 
that the science does not support the conjecture contained in 
this one model. We believe that good science would acknowledge 
that the bears had previously survived at least two major 
climate warming periods. Good science would recognize the 
present overall health of the bears. Good science would also 
recognize the present sport hunting programs, which Canada 
administers, which provide important funding would be cut off 
and terminated if the listing proceeds. Unfortunately, instead 
of good science, we see an environmental gesture in this 
particular case.
    Let me just conclude by noting that any attempt to run this 
program on pure science is divorced from reality. There is no 
pure science in many circumstances because the answers aren't 
clear or they are clearly provisional. The scientists disagree, 
often strongly, and predictive models usually are even more at 
odds.
    With such uncertainties inherent in wildlife management 
necessitate policy judgments by responsible and accountable 
officials, and someone ultimately other than the dueling 
scientists has to make calls on whether or not to capture the 
condors or choose the appropriate Everglades water flow regime 
to benefit the sparrow, storks, or the kites. That type of 
balance in this system just cannot be escaped and should be 
recognized by all of those who take this program seriously, and 
care deeply about all of the species that it seeks to protect.
    Thank you.
    [The prepared statement of Mr. Horn follows:]

            Statement of William P. Horn, on behalf of the 
                       U.S. Sportsmen's Alliance

    Mr. Chairman: My name is William P. Horn and I appreciate the 
opportunity to appear before the Committee to discuss implementation of 
the Endangered Species Act (ESA) and how matters of policy and science 
interact. These comments arise from my tenure as Assistant Secretary of 
the Interior for Fish, Wildlife and Parks from 1985-1988, my present 
service on the National Academy of Sciences Board on Environmental 
Science and Toxicology, and my long term representation of the U.S. 
Sportsmen's Alliance and its interests in wildlife conservation, 
scientific management of wildlife, and related ESA issues.
    Implementation of the ESA is an exercise in both policy and 
science. It cannot be any other way. One incontrovertible fact is that 
Congress has never provided the responsible agency--the Department of 
the Interior and its U.S. Fish and Wildlife Service (FWS)--with 
infinite resources to administer the program. As a result, program 
administrators are compelled to make choices regarding which species to 
focus on, which recovery programs to pursue, which listing decisions 
take priority, etc. These unescapable choices--that have afflicted 
every Administration, Democrat or Republican, since 1973--require 
policy decisions and it goes without saying that policy choices are 
political choices.
    Science plays an important role in making these choices but only 
the most naive would conclude that science provides clear answers, and 
clear policy choices, for every ESA decision. For example, in Florida's 
Everglades the water management regime to benefit the Cape Sable 
Seaside Sparrow adversely impacts other listed species such as the 
Everglades Kite and the Wood Stork. The scientists who constitute the 
recovery team for each species are making focused judgments, and 
recommendations, designed to benefit ``their'' species even if it means 
hindering the conservation or recovery of the other species. Someone 
has to make a policy decision, appropriately informed by relevant 
scientific data, about which water management approach should be 
pursued and that someone is usually a senior policy maker (i.e., a 
political appointee) and not a biologist in his or her white lab coat
    The limitations of ``science'' were very evident in one major issue 
that arrived on my desk during my term as Assistant Secretary. In the 
late 1980's, only seven California Condors remained in the wild 
following a series of deaths from power line collisions and unknown 
causes. One half of the condor recovery team scientists argued that the 
remaining birds needed to be captured and become part of a captive 
breeding program. The other half were adamant that captive breeding was 
scientifically unproven, the birds should be allowed to ``die with 
dignity'' in the wild. Ultimately, I made a policy decision to try the 
unproven science, capture the remaining birds, and embark on the 
breeding program--an effort that was delayed while the Department was 
sued by a group of environmentalist plaintiffs which opted for the 
``die with dignity'' approach. As the Committee may know, the captive 
breeding program turned out to be a great success and today 
approximately five dozen condors in at least two separate populations 
exist in the wild. Had we waited for some kind of consensus to arise 
from the battling scientists, wild condors would likely be extinct.
    In the same time frame, FWS received from a group of Stanford 
University professors a petition to list a purported subspecies of Bay 
Checkerspot butterflies. However, the lepidopterist taxonomists were 
hopelessly divided over whether or not the butterflies were a bona fide 
subspecies. That was the crucial issue as if they were a subspecies, 
they would be eligible to be listed and if not, there were sufficient 
numbers of this species elsewhere that listing would not be warranted. 
Ultimately, I made a policy decision to list the butterfly by siding 
with those taxonomists claiming it was a subspecies.
    This happens to be one area where there is no ``pure'' science to 
help resolve disputes. The taxonomy community is famous for being 
divided between ``lumpers'' and ``splitters.'' The former take a dim 
view of subspeciation and are much inclined to group things at the 
species level. In contrast, the latter leans toward dividing (i.e., 
splitting) species into smaller and smaller subspecies. For ESA 
purposes, this is important since ``subspecies'' are eligible for 
listing and the taxonomic determination, as in the butterfly case, 
drives the listing decision. A policy maker (i.e., a political 
appointee) who, in effect, puts the splitters in charge will end up 
listing many more subspecies compared to a policy maker who puts 
lumpers in charge of speciation determinations. Both sides of the 
taxonomic community can claim the mantle of good science, yet a policy 
maker who goes with one side will surely be criticized by the other for 
departing from good science.
    A fundamental problem with the present ESA is that it does not 
allow for enough policy judgments. For example, the statute provides 
for the listing of six different types of ``species'': at one end are 
``endangered species'' and at the other end ``threatened distinct 
population segments.'' It was always my policy judgment that more 
attention--and finite resources--needed to be directed toward 
``endangered species'' as these ``species'' are on the brink of 
extinction. On the other hand, a ``threatened distinct population 
segment'' means that only this limited segment is in serious trouble 
and that the species, or subspecies, as a whole is likely doing 
alright. The Act clearly contemplated allowing Interior and FWS to make 
these kinds of distinctions, especially between ``endangered'' and 
``threatened'' species, but court rulings over the years have largely 
erased this intended and needed flexibility.
    The sloppy language of the Act has been construed by courts to 
create a situation where, in essence, every listed species must be 
recovered regardless of cost or consequence. Of course, without 
infinite resources, the agency lacks the ability to do everything it is 
supposed to do under the Act: review species, list species, engage in 
consultation with other federal agencies, issue biological opinions, 
conserve species, recover species, fulfill the international side of 
the program, and enforce the taking proscriptions. When senior policy 
makers attempt to make needed choices, informed by scientific 
information, to establish priorities and decide which endangered 
species, endangered subspecies, endangered population segment, 
threatened species, threatened subspecies, or threatened population 
segment requires attention over another, litigation is almost automatic 
from those adherents of the species given second or third priority. A 
federal court then commandeers the program and directs the commitment 
of finite staff and monetary resources until the next court moves a 
different species to the head of the list. No application of 
``science'' in a policy/political vacuum is going to solve these 
inherent problems with the ESA.
    Repeated judicial intervention has also been a bane of the program 
and many of the rulings have little to do with science but a lot to do 
with the badly written Act. Please note that this trend is hardly 
recent. During Secretary Bruce Babbitt's tenure at Interior, during the 
Clinton Administration, the Department and FWS were the target of 
incessant ESA lawsuits--mostly from the ``environmental'' side. Career 
staff complained repeatedly about how ESA program resources were being 
commandeered by the courts and how difficult it was to administer the 
program amid a welter of often conflicting judicial edits.
    A more recent example of judicial overreach is the lynx. Every 
wildlife biologist knows that lynx populations are tied inextricably to 
their primary prey species--snowshoe hares. In addition, the lynx is a 
northern species primarily occupying habitats in Alaska and Canada 
where populations are unendangered and unthreatened. In contrast, lynx 
populations in the northern tier of the Lower 48 states cycle up and 
down with the relative abundance of hares. When the lynx population 
shrinks, as it always does in this natural cycle, it contracts and lynx 
numbers in states such as Maine or Minnesota drop. The FWS, aware of 
this cycle, declined to list as endangered or threatened the naturally 
marginal lynx POPULATION SEGMENTS in the Lower 48. This science-based 
decision was rejected by a U.S. District Court in D.C., based on the 
sloppily written ESA, and now these lynx are listed as a threatened 
distinct population segment. Of course, listing won't do much for lynx 
abundance in these states since no Act of Congress or federal court can 
keep snowshoe hares at perpetually high levels. If the Committee is 
serious about ensuring a primary role for science in ESA 
decisionmaking, it should amend the Act to ensure greater judicial 
deference to the expert determinations of the FWS.
    We all have a front row seat to the next case of the courts v. 
science. In Yellowstone, the previously threatened distinct population 
segment of grizzly bears has reached numbers substantially greater than 
the recovery goal set 20 years ago in its recovery plan. Indeed, it's 
safe to say that this population of bears recovered years ago, and 
should have been delisted then, but the agency is genuinely fearful of 
political fallout from delisting and judicial intervention. The ``usual 
suspects'' have announced their intention to challenge in court, this 
completely warranted and scientifically established delisting, and it 
will be interesting to see if science (and FWS) prevail over those 
interests with an apparently vested interest in keeping the recovered 
bears on the ESA list.
    The obvious thesis of this hearing is that the Bush Administration 
is singularly responsible for making ESA policy decisions, such as 
listings, in contravention of scientific information. A pending 
proposed listing, however, represents the triumph of politics--and 
gesture making--over science. Polar bear populations are at historic 
highs throughout the Arctic and Canada so successfully manages six (of 
the 19) populations that they sustain both subsistence and sport 
hunting. Similarly effective management in Canada, by FWS in Alaska, 
and in other countries has led FWS to conclude that no present hunting, 
habitat alteration, etc. are causing adverse impacts on these 
populations. Nonetheless, in response to a lawsuit filed in California, 
FWS is now proposing to list all polar bears as threatened under ESA 
based on one disputed model that predicts shrinking sea ice in 45 
years.
    Canada and the Alaska Department of Fish and Game, among others, 
have reacted strongly to this proposal contending that the science does 
not support the conjecture enshrined in this one model. Good science 
would recognize that there are many climate change sea-ice models, some 
of which predict differing levels of nearshore and multi-year sea ice 
during summer months from 40 to 100 years from now. Good science would 
acknowledge that polar bears have previously survived at least two 
major climate warming periods (centuries before humans loosed carbon 
dioxide into the atmosphere). Good science would recognize that 
changing sea-ice conditions will benefit some seal species that serve 
as prey for the bears. Good science would note that present studies 
indicate that polar bear survival may be more dependent on certain snow 
conditions for denning rather than sea-ice conditions. Good science 
would recognize the overall health of polar bear populations. Good 
science would also recognize that if any bear population segments 
deserved listing, it would be the two or three populations for which 
little information is available so no one knows conclusively if these 
populations are indeed threatened.
    Unfortunately, instead of good science, we see a political gesture. 
We understand the desire of some interest groups to turn the polar bear 
into their poster child for ``global warming.'' We're bitterly 
disappointed that the Interior Department, so far, has bought into this 
kind of gesture-making and is trumping good science and conservation. 
In fact, listing would hurt bear conservation efforts by barring U.S. 
citizens from participating in the Canadian sport hunting program and 
cut off a primary source of funding for important conservation and 
scientific management programs.
    Let me conclude by noting that any attempt to rely on ``pure 
science'' to run the ESA program is divorced from reality. There is no 
``pure science'' as in many instances answers aren't clear or are 
completely provisional. Scientists disagree, often strongly, and 
predictive models are usually more at odds. Such uncertainties, 
inherent in wildlife management, necessitate policy judgments by 
responsible and accountable officials. Someone other than dueling or 
competing scientists have to make the calls on whether or not to 
capture the condors or choose an Everglades water flow regime to 
benefit the sparrows, the storks, or the kites. Fundamentally the 
availability of only finite staff and funding resources--per Congress--
mandate that policy choices be made. Priorities have to be set because 
all elements, and all species, cannot be treated equally despite what 
the law may provide. Those too are policy decisions--not science. Under 
these immutable circumstances it would be naive, at best, and 
counterproductive to try to administer the ESA program on the basis of 
a myth--``pure science.''
                                 ______
                                 

   Response to questions submitted for the record by William P. Horn

    1.  I cannot recall a listing of an otherwise healthy species of 
fish or wildlife based solely on a single model that predicts 
population declines over a 45 year or greater time span. There have 
been instances where a species was in some difficulty (e.g., spotted 
owls) and population models predicted a further decline in overall 
numbers. The approach underlying the present proposed listing of all 
polar bears is unprecedented since the worldwide population of the 
bears is at or above record highs. Please note that if a presently 
healthy population can, or must, be listed based solely on one model 
that projects problems 45 years or further into the future, many 
otherwise presently healthy species will become eligible for listing 
now.
    2.  There are dozens of listings of distinct population segments 
(DPS's) as endangered or threatened species. Some of the highest 
profile species are DPS's, including Yellowstone grizzly bears, lynx in 
the Lower 48 states, and numerous salmon runs on the West Coast. In 
these cases, the overall species is healthy (e.g., there are tens of 
thousands of grizzly bears in Alaska and Canada) but a specific 
population segment is determined to be in jeopardy.
    3.  The Act includes an effective hierarchy with endangered species 
on top and threatened distinct population segments at the bottom. 
Clearly, limited resources ought to be focused on endangered species--
facing extinction--rather than on population segments of otherwise 
healthy species especially when those segments are only ``threatened.''
    4.  The proposed listing of the polar bear is a major mistake on 
many levels. First, the listing will terminate the single most 
effective polar bear conservation program--the sport hunting program 
administered in Canada that generates hundreds of thousands of dollars 
of revenue to fund tangible, on-the-ground conservation and management 
activities. Second, the bear MIGHT be in trouble 45 years from now IF 
the one model regarding sea ice shrinkage turns out to be correct. It 
strikes me as foolish to expend finite resources now, as the result of 
a listing, on the presently healthy polar bears rather than direct 
those resources at genuinely endangered species. Third, listing the 
bears based on a 45 year projection will set a precedent that will 
likely compel the listing of many Arctic species that are otherwise 
presently healthy. This would further skew the allocation of limited 
resources away from presently endangered species.
    5.  We regard the listing of the polar bear as an environmental 
gesture--a bald faced effort to make the bear the ``poster child'' for 
global warming doomsayers. There is nothing in the ESA that empowers 
the Secretary of the Interior to begin to regulate CO2 
emissions within the U.S. or in the world (i.e., China or India) so the 
listing will do little or nothing to address the purported root cause 
of Arctic sea ice shrinkage--excessive CO2 output into the 
atmosphere. In addition, there is nothing in the legislative history of 
the ESA indicating Congress ever contemplated or intended the ESA to be 
used to regulate human activity on such a broad scale.
    6.  Listing all polar bears as threatened, as presently proposed, 
would not provide the Fish and Wildlife Service any authority to 
protect or conserve polar bear habitat in Canada or any other foreign 
country. Since only two of the 19 bear populations are found within the 
U.S. (Alaska), the listing is really only a gesture since the listing 
would not empower FWS to do much of anything to beneficially impact 
conservation of the other 17 bear populations.
    7.  A variety of environmentalist interests challenged my decision 
to capture the remaining wild California Condors in the mid-1980's and 
embark on the ultimately successful captive breeding program to save 
the species from extinction. The Department and FWS were initially 
enjoined from conducting the capture program by U.S. District Court in 
Washington, D.C. as a result of the environmentalist lawsuit 
challenging the capture/captive breeding decision. Most of the 
arguments against the decision claimed that there was insufficient 
scientific justification to embark on the captive breeding effort and 
that once the birds were captured, they would never be returned to the 
wild. This led to one of the plaintiffs commenting that it was 
preferable to have the condors ``die with dignity'' in the wild rather 
than be captured for the then unproven captive breeding program. 
Ultimately, the courts upheld the Department's decision and the 
capture/breeding program proceeded--and succeeded.
    It is likely that such arguments would be used again today. 
Unfortunately, there are many interests whose primary interest is using 
the ESA to impose land use controls and other restraints on human 
activity rather than focus on bona fide wildlife conservation and 
species recovery. Keeping species in the wild, even at the risk of 
extinction, advances this regulatory agenda. Moreover, other interests 
will fight to maintain a listing for these same reasons even though 
sound scientific data demonstrates that a listed species has recovered 
and warrants delisting.
    8.  Federal employees, including scientists, retain their First 
Amendment rights. Furthermore, agency scientists have an obligation to 
provide the best data and scientific judgments--consistent with 
applicable law--to senior policy makers. However, there is often no 
bright line between a scientific dispute and a policy issue. Our system 
recognizes that the elected President and his executive branch team 
make the policy decisions. Career personnel have an obligation to 
adhere to those policy judgments. If career personnel want to make 
independent policy (and contradict Presidential appointees and others 
confirmed by the Senate), they need to give up their protected civil 
service status and enter the political arena.
    9.  Clearly there must be interaction between research and 
management for both to be effective and serve the public interest. It's 
clear though that management decisions usually fall in the policy realm 
where accountable political appointees hold sway. Accordingly, it is 
well established that much research is asked for to enable an agency to 
deal with pressing management issues. Smart managers, though, realize 
that they should ask the researchers where research is needed and where 
it will ultimately help an agency discharge its duties under applicable 
law including the ESA.
                                 ______
                                 
    The Chairman. Thank you very much. I appreciate your 
testimony and patience in being with us all morning and into 
the afternoon.
    Let me ask you, Ms. Rodd, the first question, if I might. 
Could you please explain the flaws and the serious concerns 
that you have with the process at the Fish and Wildlife Service 
has undertaken to de-list the squirrel?
    Ms. Rodd. Certainly. Thank you for the opportunity.
    We are very concerned because in this case the recovery 
plan has been thrown out as a standard by which the recovery is 
being measured. The squirrel is--we are told that the squirrel 
population is persistent. We are told that the habitat is 
protected and the threats are going down.
    The recovery plan sets up a way to measure these things. 
You measure a basic population. You look at trends over 10 
years. No measures of population have been made. The agency 
itself admits they have no understanding of what the population 
is.
    So they have turned to this strange term ``persistence'', 
which means once in a while a squirrel pops up, and that is 
their science for going all the way from endangered to no 
protection at all. The habitat that they have described is not 
an agreement with all the major scientific papers. They 
describe the squirrel as being totally dependent on a Red 
Spruce habitat, when in fact it uses both Red Spruce and 
Northern Hardwoods. And so when they say, well, we will protect 
Red Spruce, they are losing half the habitat. This 
misdefinition of habitat could be fatal to the squirrel.
    Third, they talk about threats decreasing, and in that case 
they say, we are protecting the squirrel on the Monongahela 
National Forest, and there won't be any logging under the new 
forest plan. But reading the details of the new forest plan 
logging is allowed in all the habitats where the squirrel 
exists. It is allowed in Red Spruce habitat which they have 
singled out for protection, but they still are allowing 
logging. It is allowed in the Northern Hardwood habitat, and it 
is allowed in Hemlock, which is another place where the 
squirrel is found. So it is not being protected from logging.
    It is not being protected from road building. They claim 
that flying squirrels have the ability to slide 140 feet and 
therefore could cross a four-lane highway and be fine. This is 
absurd. They base this on one study, one letter, anecdotal 
instance of a squirrel crossing a power line, and they compare 
that to a four-lane highway.
    They also would, in order for the squirrel to glide the 140 
feet, you would have to plant 200 feet trees along the edge of 
any highway to allow them to get that amount of glide going.
    We also find a flaw in their numbers. They are saying that 
1,147 squirrels have been found over 21 years, and that is 
enough to say the squirrel is fine. We looked at the original 
field notes for everyone of those captures, and we are able to 
confidently claim that they have only caught 654 squirrels in 
21 years. That is 30 a year. They didn't even go back and look 
at the basic research to see what was there.
    We are very upset with the shoddy science being done here, 
and we are upset that the recovery plan is being thrown out, 
which apparently, I am surprised to learn, is happening all 
over the place. We are part of a national trend. We don't like 
it.
    The Chairman. So what would be your recommendations for 
correcting these faults?
    Ms. Rodd. We would like a Blue Ribbon scientific panel to 
be convened on this rule, proposed rule, to review the science 
and come up with a recommendation. We would like this panel to 
consist of independent scientists, scientists that are not part 
of the agency, either Fish and Wildlife or the Forest Service. 
That is what we would recommend.
    The Chairman. OK. Mr. Young, let me ask you, as a former 
employee at Fish and Wildlife you have perspectives certainly 
that none of us have, and I have a question regarding the role 
that science and peer review have in ESA decisions.
    If the work that scientists provide that Fish and Wildlife 
Service has ignored, as we understand happened with the Bull 
Trout, what incentive is there for outside scientists to devote 
time to peer reviewing ESA decisions?
    Mr. Young. Well, that is a good question, Mr. Chairman, and 
I am sorry Congressman Inslee is not here because my response 
reflects some of his constituents, I believe.
    The Chairman. We will share your responses.
    Mr. Young. Little incentive. For instance, when the 
critical habitat designation came out as it did come out, our 
partners in Washington Department of Fish and Wildlife, several 
of our partners there who were members of recovery teams and 
participated in the critical habitat process, and participated 
as peer reviewers as well, were incensed and basically 
expressed outrage and I am sure it was just a knee-jerk 
reaction, but at least initially said don't come back and ask 
us for any help again because you are just wasting our time.
    It is disingenuous to ask a peer reviewer who has a career, 
or a group of peer reviewers, they have careers, they have 
their own duties to do, to devote time to reviewing hundreds of 
pages of documents sometimes, providing helpful guidance with 
their expertise, and then to see the final result that reflects 
none of their input. So it is damaging to the agency in that 
regard, I believe.
    The Chairman. What guidelines or what documents, rather, 
are available to guide Fish and Wildlife employees when it 
comes to making critical habitat designations?
    For example, how do they know what is to be included in an 
economic impact analysis?
    Mr. Young. Well, the economic impact analysis is done by 
private contractors, so they are guided by the Washington 
office, and there is a staff member in the Washington office 
who is an economist, the sole economist, as I understand, in 
the U.S. Fish and Wildlife Service. Of course, that person 
doesn't make the policy that guides these contractors. That is 
done by others in the Department.
    So I can't really respond beyond that. You know, there are 
people who provide guidance through the economist in Fish and 
Wildlife Service.
    The Chairman. OK. Are the peer reviewers paid?
    Mr. Young. Peer reviewers are not paid.
    The Chairman. They are not paid.
    Mr. Young. No. No, they are voluntary, and you know, as the 
Bull Trout coordinator I worked hard to develop relationships 
with these people, and with these agencies so that they would 
take the time, and their supervisors would allow them to take 
the time to help us with peer review, and in the case of the 
five-year review of the panel that guided the whole five-year 
review process. In that case, even our regional director, it 
appeared to me, was so nervous about making a decision that he 
wanted an outside panel to guide the process that led to the 
decision to be totally transparent in the record.
    The Chairman. OK. We thank you for your testimony today. 
Appreciate it very much.
    The Committee will stand adjourned.
    [Whereupon, at 2:48 p.m. the Committee was adjourned.]

    [Additional material submitted for the record follows:]

    [A letter from Gail S. Olson, Ph.D., submitted for the 
record by The Honorable Jay Inslee follows:]

                              May 16, 2007

The Honorable Jay Inslee
U.S. House of Representatives
Washington, D.C.

Dear Congressman Inslee:

    I am a wildlife biologist who has conducted research on the 
relationships between Northern Spotted Owls and their habitat for the 
past 8 years. I (along with 6 co-authors) published a paper on some of 
the results of that research in the Journal of Wildlife Management in 
2004 and it has been cited several times in the draft Northern Spotted 
Owl Recovery Plan. Specifically, results published in my paper have 
been used to support the habitat provisions for both Options 1 and 2 in 
the Plan. I strongly believe this to be at least a misinterpretation of 
my research results and at worst deliberate misuse.
    One of the key findings described in the paper was that a mixture 
of older forest and young or non-forest was positively associated with 
owl survival and reproductive output within one study area in the 
Oregon Coast Range. We anticipated the temptation to use this 
information to write habitat prescriptions when we discussed the 
``Management Implications'' of the research. On p. 1052 of Olson et al. 
(2004), we stated: ``...we do not recommend that forest managers use 
our modeling results as a prescription for managing habitat either 
within the Oregon Coast Range or elsewhere...''. This statement is 
alluded to within the Recovery Plan (p. 36) and the claim is made that 
these results were used only to establish de-listing guidelines and not 
to set management prescriptions. However, it is difficult to imagine 
that delisting criteria and habitat prescriptions can be completely de-
linked, and the rest of the Plan as written does not appear to separate 
the two concepts.
    Therefore, I believe it is reasonable to assume that my research 
results were used to set habitat provisions in the Plan. Therefore, I 
believe it is important to reiterate the reasons why we made that 
statement in the paper.
    1. The amount of variation explained by the models is low. That 
means that the habitat variables that we examined are not strong 
predictors of owl population parameters (survival and reproductive 
output). Many other factors likely have an influence, including habitat 
components not examined in this study.
    2. The habitat variables we used in the study were assessed by 
transcribing aerial photography images. Errors in this process may 
misrepresent the amounts of certain habitat types.
    3. Our results may reflect unique conditions within our study area 
and may not be representative of other areas. Replication of this study 
in other areas is necessary to determine whether our results were 
typical or anomalous.
    In addition to these general caveats, I've identified at least 5 
key areas where the results of my research were misapplied within the 
Plan.
    1. Definition of owl habitat. The habitat variables used in our 
analyses were not the same as those that will be used in measuring 
``habitat-capable'' acres in the provisions within the Plan. Although 
there may be some overlap in the definitions, no effort was made to 
determine what this overlap is. Therefore, specific values from my 
research may translate to entirely different values of the habitat 
definitions used in the Plan.
    2. Scope of analyses and scale of measurement. Our research was 
conducted within a study area known to be historically inhabited by 
spotted owls. The aim of our study was to see if we could determine 
differences in owl demographic performance within this area based on 
the habitat in the area immediately surrounding owl nest trees and 
activity centers (owl territories). Thus our study only assessed 
habitat at a relatively small scale and not across entire landscapes. 
To infer that the same pattern of habitat found within 1500m of owl 
territory centers can be applied to landscapes as a whole requires 
additional assumptions that are certainly not supported by my research 
and also is contrary to what most ecologists believe about the 
importance of scale in studying wildlife-habitat relationships.
    3. Misinterpretation of habitat fitness potential. The Plan bases 
much of its support for the habitat provisions on a measure called 
``habitat fitness potential'', which was developed by Franklin et al 
(2000) as a means of combining the affects of habitat on owl survival 
and productivity into a single measurement. Because they used a common 
population modeling method based on a projection matrix, they used the 
symbol lh as short-hand notation to represent habitat 
fitness potential. This likely has led to confusion and the assumption 
that this measurement can be equated to the more widely used l which is 
a population projection measure used to measure population trends in 
northern spotted owls (c.f. Anthony et al. 2006). In general, values of 
l indicate whether a population is increasing (l>1.0), decreasing 
(l<1.0), or stable (l=1.0). However, values of lh cannot be 
similarly interpreted because they are based on animals already 
recruited into the population. They are also idealized values based on 
the assumption that the models used to estimate the survival and 
reproductive output parameters used to calculate habitat fitness 
potential are accurate. They are NOT based on direct analyses of the 
data collected from spotted owls within those individual territories.
    4. Appendix D. The most obvious example of poor use of science in 
the Plan is found in Appendix D, which purports to describe what 
habitat fitness potential is and it does nothing of the sort. First, 
there is no information on how habitat fitness potential is calculated, 
which is necessary for any understanding of what it is. Second, the 
analyses presented to determine the province-specific habitat threshold 
values are completely ad hoc. The ``limited data set'' attributed to 
the Olson et al. (2004) paper consisted of 6 data points where were 
intended as visual examples only, and no data were provided on specific 
habitat values within the paper. Thus they were estimated from a figure 
(Figure 5) that was never intended to be used in such a way. The graph 
in Figure D.2. is not of the true relationship between lh 
and the habitat variable, which can be calculated directly because 
lh was computed based on a formula containing habitat 
values. Even the analysis based on Figure D.3., which is supposedly 
taken directly from the Olson et al (2004) Figure 2 is incorrect in 
that it does not accurately estimate the maximum value, which is known. 
In general, none of the analyses in Appendix D that relate to Olson et 
al. (2004) were necessary or appropriate.
    5. Lack of uncertainty measures. It is a major tenet of modern 
scientific analyses that the uncertainty of estimates be reported so 
that the results can be properly interpreted. Estimates are commonly 
given with confidence intervals or other measures of variance. The Plan 
repeatedly ignores such uncertainty and does not consider how such 
uncertainty may affect the recommendations of the Plan.
    In summary, my general impression with respect to the use of my 
research is that the Recovery Team lacked an understanding of the 
methodologies used and deliberately ignored warnings against using it 
to write management prescriptions. I was never asked to answer 
questions regarding either the methodology nor the recommendations, 
which further leads me to believe that clarity on these issues was not 
desired. I hope this letter provides some of this clarity and sets the 
record straight on what can and cannot be inferred from my research.

                               Sincerely,

                          Gail S. Olson, Ph.D.

    [Northern Spotted Owl Recovery Plan Options, October 18, 
2006, submitted for the record by The Honorable Jay Inslee 
follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                               
