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



 
                       THE DANGER OF DECEPTION:
                         DO ENDANGERED SPECIES
                            HAVE A CHANCE?

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

                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                        Wednesday, May 21, 2008

                               __________

                           Serial No. 110-72

                               __________

       Printed for the use of the Committee on Natural Resources



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                     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              Chris Cannon, Utah
Frank Pallone, Jr., New Jersey       Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin         Jeff Flake, Arizona
    Islands                          Stevan Pearce, New Mexico
Grace F. Napolitano, California      Henry E. Brown, Jr., South 
Rush D. Holt, New Jersey                 Carolina
Raul M. Grijalva, Arizona            Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam          Cathy McMorris Rodgers, Washington
Jim Costa, California                Louie Gohmert, Texas
Dan Boren, Oklahoma                  Tom Cole, Oklahoma
John P. Sarbanes, Maryland           Rob Bishop, Utah
George Miller, California            Bill Shuster, Pennsylvania
Edward J. Markey, Massachusetts      Bill Sali, Idaho
Peter A. DeFazio, Oregon             Doug Lamborn, Colorado
Maurice D. Hinchey, New York         Mary Fallin, Oklahoma
Patrick J. Kennedy, Rhode Island     Adrian Smith, Nebraska
Ron Kind, Wisconsin                  Robert J. Wittman, Virginia
Lois Capps, California               Steve Scalise, Louisiana
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
                       Rick Healy, Chief Counsel
            Christopher N. Fluhr, Republican Staff Director
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                

      

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, May 21, 2008..........................     1

Statement of Members:
    DeFazio, Hon. Peter A., a Representative in Congress from the 
      State of Oregon............................................     5
    Inslee, Hon. Jay, a Representative in Congress from the State 
      of Washington..............................................     6
    Lamborn, Hon. Doug, a Representative in Congress from the 
      State of Colorado, Statement submitted for the record......     7
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     1
        Prepared statement of....................................     2
    Smith, Hon. Adrian, a Representative in Congress from the 
      State of Nebraska..........................................     3

Statement of Witnesses:
    Black, Scott Hoffman, Ecologist/Entomologist, Executive 
      Director, The Xerces Society for Invertebrate Conservation.   147
        Prepared statement of....................................   148
    Franklin, Dr. Jerry F., Ph.D., College of Forest Resources, 
      University of Washington...................................   118
        Prepared statement of....................................   120
    Grifo, Dr. Francesca T., Ph.D., Senior Scientist and 
      Director, Scientific Integrity Program, Union of Concerned 
      Scientists.................................................   123
        Prepared statement of....................................   125
    Irwin, Larry L., Ph.D., Principal Scientist, National Council 
      for Air and Stream Improvement, Inc........................   165
        Prepared statement of....................................   166
        Response to questions submitted for the record...........   175
    Kraus, Scott D., Ph.D., Vice President of Research, New 
      England Aquarium...........................................   109
        Prepared statement of....................................   111
    Laverty, R. Lyle, Assistant Secretary for Fish and Wildlife 
      and Parks, U.S. Department of the Interior.................    46
        Prepared statement of....................................    47
        Response to questions submitted for the record...........    50
    Luxton, Jane, General Counsel, National Oceanic and 
      Atmospheric Administration, U.S. Department of Commerce....    66
        Prepared statement of....................................    67
        Response to questions submitted for the record...........    69
    Nazzaro, Robin M., Director, Natural Resources and 
      Environment, U.S. Government Accountability Office.........     7
        Prepared statement of....................................     9
    Parsons, David R., Carnivore Conservation Biologist/Science 
      Fellow, The Rewilding Institute............................   156
        Prepared statement of....................................   157
    Shepard, Ed, Bureau of Land Management, U.S. Department of 
      the Interior, Response to questions submitted for the 
      record.....................................................    65

Additional materials supplied:
    MacDonald, Julie A., MacDonald Consulting, Letter submitted 
      for the record.............................................    73
    Manson, Craig, Former Assistant Secretary for Fish and 
      Wildlife and Parks, U.S. Department of the Interior, Letter 
      submitted for the record...................................   189
    Robertson, Doug, Commissioner, Douglas County, Oregon, 
      Statement submitted for the record.........................   191
    List of documents retained in the Committee's official files.   195


 OVERSIGHT HEARING ON ``THE DANGER OF DECEPTION: DO ENDANGERED SPECIES 
                            HAVE A CHANCE?''

                              ----------                              


                        Wednesday, May 21, 2008

                     U.S. House of Representatives

        Subcommittee on National Parks, Forests and Public Lands

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to call, at 10:06 a.m. in Room 
1324, Longworth House Office Building, Hon. Nick J. Rahall, II 
[Chairman of the Committee] presiding.
    Present: Representatives Rahall, Smith, Grijalva, Sarbanes, 
DeFazio, Scalise, Inslee, Baca, Duncan, Gohmert, Wittman, 
Young, Bordallo, Napolitano, Costa and Holt.

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

    The Chairman. The Committee is meeting today to continue 
our strong oversight hearings on the implementation of the 
Endangered Species Act.
    One year ago, we convened to examine the mess created by 
former Deputy Assistant Secretary for Fish, Wildlife and Parks, 
Julie MacDonald. At the time, I, along with many Members of 
this Committee, had high hopes that the Interior Department 
would take a serious look at how that poorly-placed political 
appointee was allowed to tinker with the work of Agency 
scientists to the detriment of the Endangered Species Program.
    As a result of that hearing, the Agency undertook a review 
of the decisions that fell under MacDonald's purview and 
pledged to work to correct any wrongdoing it uncovered. That 
was a good thing. Now, one year later, after MacDonald's 
demise, we find that instead of cleaning up its mess, the 
Agency has merely swept it under the rug.
    Today, much to my chagrin, we are about to hear that the 
Agency's well-published post MacDonald review, ostensibly 
designed to correct listing and critical habitat decisions, 
decisions tainted by politics, was a boondoggle. It is fixing 
nothing. It was too narrow, too fast and too sloppy.
    Among other things, our Government Accountability Office 
witness today will tell us that Agency reviewers automatically 
discounted from scrutiny any decisions that could not be 
directly linked to tampering by Ms. MacDonald, yet her 
fingerprints may have been all over countless decisions that 
were given automatic immunity from the Fish and Wildlife 
Service's review. Among them were decisions that scientists 
crafted not based purely on the science, but rather according 
to what they anticipated might gain Julie MacDonald's political 
seal of approval.
    Worse still, GAO now reveals to us that there are other 
Interior officials who influenced ESA decisions, and those 
folks are still roaming the halls of the Interior Department 
unchecked. As a result, we can have no confidence that 
political tinkering with the ESA program is being addressed any 
better now than it was under MacDonald's reign.
    Today, we will also hear testimony about the untenable 
delay of a rule designed to protect the severely depleted North 
Atlantic right whale from ship strikes, the latest public 
example of covert White House interference with endangered 
species. It has become abundantly clear that this 
Administration does not give one whit about the ESA.
    The strong-arming of Federal scientists, the slow walking 
of listing decisions, and the stonewalling of new rules has 
convinced me that every attempt to fix the management of the 
Endangered Species Program under this Administration is a lost 
cause. No matter how deeply this Committee looks or how hard we 
push to conduct real, valid oversight, we are hamstrung by 
secrecy and by deception.
    For example, I, along with Representatives Peter DeFazio 
and Jay Inslee, requested documents relating to the northern 
spotted owl, but of the boxes of documents sent to us in 
response to that request, we find barely any mention of the 
names of Agriculture Secretary Mark Ray, Deputy Under Secretary 
of Agriculture Dave Tenney, or Interior Deputy Secretary Lynn 
Scarlett, who all served on the ``Washington Oversight 
Committee''.
    Though it may be a bad pun, my true reaction is something 
smells fishy here. As Chairman of this Committee and as one who 
undertakes oversight responsibility seriously, I am forced to 
conclude that not only has the Endangered Species program been 
sorely politicized, but effort after effort supposedly designed 
to correct the mishandling of the program by this 
Administration and this Agency has also been badly bungled.
    At this point, in my opinion, the best hope for endangered 
species may simply be to cling to life until after next 
January, when this President and his cronies at long last will 
be on the unemployment lines.
    With that, I conclude my testimony and yield to the Ranking 
Minority Member.
    [The prepared statement of Chairman Rahall follows:]

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

    One year ago, this Committee convened to examine the mess created 
by former Deputy Assistant Secretary for Fish, Wildlife and Parks Julie 
MacDonald. At the time, I had high hopes that the Interior Department 
would take a serious look at how that poorly placed political appointee 
was allowed to tinker with the work of agency scientists to the 
detriment of the Endangered Species program.
    As a result of that hearing, the agency undertook a review of the 
decisions that fell under MacDonald's purview and pledged to work to 
correct any wrongdoing it uncovered.
    Now, one year after MacDonald's demise, we find that instead of 
cleaning up its mess, the agency has merely swept it under a rug.
    Today, much to my chagrin, we are about to hear that the agency's 
well-publicized post-MacDonald review, ostensibly designed to correct 
listing and critical habitat decisions--decisions tainted by politics--
was a boondoggle; it is fixing nothing. It was too narrow, too fast, 
and too sloppy.
    Among other things, our Government Accountability Office witness 
will tell us that agency reviewers automatically discounted from 
scrutiny any decisions that could not be directly linked to tampering 
by MacDonald. Yet her fingerprints may have been all over countless 
decisions that were given automatic immunity from the Fish and Wildlife 
Service's review. Among them were decisions that scientists crafted not 
based purely on the science but, rather, according to what they 
anticipated might gain MacDonald's political seal of approval.
    Worse still, GAO now reveals to us that other Interior officials 
also influenced ESA decisions, and those folks are still roaming the 
halls of the Interior Department, unchecked.
    As a result, we can have no confidence that political tinkering 
with the ESA program is being addressed any better now than it was 
under MacDonald's reign.
    Today, we will also hear testimony about the untenable delay of a 
rule designed to protect the severely depleted North Atlantic right 
whale from ship strikes--the latest public example of covert White 
House interference with endangered species.
    It has become abundantly clear that this Administration does not 
give one whit about the ESA. Its strong-arming of Federal scientists, 
slow-walking of listing decisions, and stonewalling of new rules have 
convinced me that every attempt to fix the mismanagement of the 
endangered species program under this Administration is a lost cause.
    No matter how deeply this Committee looks or how hard we push to 
conduct real, valid oversight, we are hamstrung by secrecy and 
deception. For example, I, along with Representatives Peter DeFazio and 
Jay Inslee requested documents related to the northern spotted owl. But 
of the boxes of documents sent to us in response to that request, we 
find barely any that mention the names of Agriculture Undersecretary 
Mark Rey, Deputy Undersecretary of Agriculture Dave Tenney, or Interior 
Deputy Secretary Lynn Scarlett, who all served on the ``Washington 
Oversight Committee.'' Though it may be a bad pun, my reaction is: 
something smells fishy here.
    As Chairman of this Committee, I am forced to conclude that not 
only has the endangered species program been sorely politicized, but 
effort after effort supposedly designed to correct the mishandling of 
the program by this Administration and its agencies has also been badly 
bungled.
    At this point, the best hope for endangered species may simply be 
to cling to life until after January when this President and his 
cronies, at long last, hit the unemployment line.
                                 ______
                                 

 STATEMENT OF THE HONORABLE ADRIAN SMITH, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEBRASKA

    Mr. Smith. Thank you, Mr. Chairman.
    Today, we are holding an annual oversight hearing on the 
Endangered Species Act. This year it is entitled, ``The Danger 
of Deception: Do Endangered Species Have a Chance?'' While it 
certainly is an interesting title, under current law I believe 
the chance of recovery is almost zero.
    For 12 years the Republican House Majority not only 
reviewed the effectiveness of this Act, but we tried to improve 
this law for both wildlife and humans. While ultimately we were 
unsuccessful in gaining the concurrence of the other body, at 
least we tried to do something positive.
    It has been over 7,000 days since the last ESA bill was 
signed into law, 5,709 days since the last authorization 
expired, and 504 days with the new Majority controlling 
Congress, and apparently the Act is perceived to be working 
well. I find that a stunning conclusion, especially in light of 
the fact that the Director of the Fish and Wildlife Service has 
testified that they have not made a single listing or critical 
habitat designation on their own in over a decade.
    The Fish and Wildlife Service doesn't run this program. It 
seems to be run by narrow special interests enriching 
themselves on taxpayer dollars by filing endless lawsuits. I 
can tell you that no one wins with litigation of this nature.
    This hearing will address a number of species. Let me 
comment on just a few. I am sure we will have an interesting 
discussion on the so-called recovery of the northern spotted 
owl. We know now that the population of this threatened species 
is declining by about three percent each year. This is 
remarkable because all of the so-called experts told us that if 
you shut down all the timber mills, destroyed the lives and 
futures of thousands of loggers and their families, then the 
northern spotted owl would thrive in the Northwest forest.
    Now the Fish and Wildlife Service has identified the barred 
owl as the single greatest threat to the continued existence of 
the spotted owl. In fact, their recovery plan states that the 
best action to protect spotted owls is to remove thousands of 
barred owls currently occupying its habitat. This may be 
difficult since barred owls are strictly protected under the 
Migratory Bird Treaty Act.
    While barred owls may now outnumber spotted owls, the 
fundamental threat to all wildlife in the Northwest forest is a 
failure to effectively address wildfires. They will sadly 
occur, and this Congress will do nothing to remove the fuel 
that makes these fires almost inevitable. In terms of spotted 
owls, apparently there is little chance of recovery, and the 
residents of the Northwest were clearly deceived.
    Second, we are likely to hear complaints that the Fish and 
Wildlife Service has failed to adequately protect the 
reintroduced Mexican gray wolf in Arizona and New Mexico. In 
this case, it is hard to believe that anyone was deceived 
because as a ``nonessential experimental population'' ranchers 
have a legal right to protect their lives and livestock from 
these wolves. The law is clear. If a gray wolf attacks a steer 
or a horse they may be killed.
    Finally, let me say to the Assistant Secretary of the 
Interior that we provided 39 months to review the listing 
petition for the polar bear, and still the wrong decision was 
made. It is the wrong decision because the worldwide population 
of polar bears is healthy. In fact, the population has almost 
doubled in the last 50 years.
    It is the wrong decision because there is no practical way 
to improve or retain the habitat for these species, and, most 
importantly, it is the wrong decision because it is an assault 
on sound science and commonsense. By listing the polar bear, 
the Fish and Wildlife Service has deceived the American people 
into thinking that this species is on the brink of extinction 
and that it can maintain or even increase its sea ice habitat.
    Mr. Chairman, after 20 years it is way past due to 
modernize the Endangered Species Act because the current one 
percent recovery rate simply perpetuates a cruel deception on 
the American people. Let us give these species a real chance to 
survive in the future.
    Thank you, Mr. Chairman.
    The Chairman. The Chair thanks the acting Ranking Member.
    Mr. DeFazio? Before recognizing other Members, let me take 
a moment to recognize and welcome a new Member of our 
Committee, Mr. Scalise of Louisiana. We welcome you and 
congratulate you on your victory. Glad to have you a Member of 
the Natural Resources Committee.
    Mr. Scalise. It is a pleasure.
    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.
    I know that the focus of this hearing is greater than the 
issues surrounding the northern spotted owl growth force and 
the Pacific Northwest, but since the gentleman just spoke who 
clearly knows nothing of my region or my forests--to tell the 
truth, I don't even know where you are from, but I have to 
respond.
    We are back where we were in the Bush I Administration 
where you are trying to resolve incredibly complicated and 
difficult environmental problems with political science. It 
defies the law. It defies commonsense, and the losers are the 
environment and the people I represent.
    I represent a lot of those rural communities that have been 
devastated because of changes in forest policy in this country. 
I have tried to provide a commonsense direction, different than 
the Clinton forest plan, and way different than what this 
Administration--this Administration actually has kind of dialed 
back and dug out something called the ``Jameson Plan.''
    Now, I like Sy Jameson. He was a fun guy, but as head of 
the BLM, he cooked up a plan to deal with what was then the 
entire closure of our forests to timber harvesting that had no 
support from any legitimate scientists. It was laughed out of 
court and brought an injunction on all timber harvesting, and 
this Administration has taken us right back to that spot under 
the guise of doing a favor for the people of the Pacific 
Northwest. For the people who live in rural communities and the 
timber industry, they are cruising us right toward a disaster 
again.
    It doesn't have to happen, and I hope there will be some 
result from this hearing today to redirect this Administration 
in a more productive direction because if they follow through 
with their flawed science we are going to end up with another 
court injunction, and we will get even less timber harvest than 
we are getting today.
    I am working on a credible plan that could double the 
Federal timber harvest. Part of it is reflecting a little bit 
of what they propose on the east side, but on the west side 
they are just going after the habitat, the last vestiges of old 
growth. That is what started the whole controversy, and until 
you protect that old growth, you are not going to protect 
adequately the species, the environment, and you are not going 
to end the forest wars in the Pacific Northwest.
    Thank you, Mr. Chairman.
    The Chairman. Do other Members wish recognition? Let me 
see. The gentleman from Arizona, Mr. Grijalva? The gentleman 
from Washington, Mr. Inslee?
    Mr. Inslee. Thank you. I assume we are doing opening 
statements, I assume.
    The Chairman. Yes, we are.

  STATEMENT OF THE HONORABLE JAY INSLEE, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF WASHINGTON

    Mr. Inslee. Thank you, Mr. Chair. I appreciate the Chair's 
work on this issue.
    I think the Chair knows there are many of us who have been 
very concerned about this Administration's failure to follow 
the best available science, which is required under the ESA 
and, in effect, they have followed the best available excuses 
time after time for inaction. It is most disturbing.
    Out in Washington State, it is not just one species that my 
grandkids may not get to enjoy as I did growing up in 
Washington State, but it is several. This has been something 
that has caused a lot of anger in the State of Washington that 
back in D.C. our grandkids are not getting the protection they 
deserve to enjoy nature's bounty.
    I just want to mention a couple of them, most recently of 
concern. This alleged polar bear listing was not a listing of 
an endangered species. It was a listing of the things the 
Administration refuses to do to save that species. On that list 
is, number one, the refusal by the Administration to do 
anything to stop global warming, which is the existential 
threat to the continuation of the polar bears. That is number 
one.
    Number two, they have essentially, the second thing on the 
list, insisted on a business-as-usual approach on oil and gas 
development. Again, a refusal to act.
    Number three on that list of inaction is, they refuse to 
designate critical habitat for the polar bear, as far as I can 
tell, so what we have is a listing on the polar bear. It is 
just a list of what your Federal government refuses to do when 
this iconic creature of the Arctic is going to go extinct. I 
think people have a right to be very angry about that.
    On the spotted owl issue, we are going backwards in the 
State of Washington with this alleged draft recovery plan. It 
goes backwards in protection of old growth. It goes backwards 
in protection of habitat. It is not a recovery plan. It is just 
we haven't had a chance to recover from multiple years of this 
Administration's multiple failures on listing.
    I just hope that the next Administration, because I have 
just about given up on this one, will finally start following 
science. We don't have a lot of time for these species, and I 
appreciate the Chair's willingness to expose these multiple 
failures. Thank you.
    The Chairman. Any other Members wish to make opening 
statements? The gentleman from Maryland, Mr. Sarbanes?
    Yes? The gentleman from Nebraska?
    Mr. Smith. I would submit for the record an opening 
statement by Mr. Lamborn.
    The Chairman. Without objection. It will be made part of 
the record.
    [The prepared statement of Mr. Lamborn follows:]

 Statement of The Honorable Doug Lamborn, a Representative in Congress 
                       from the State of Colorado

    Thank you, Mr. Chairman, for scheduling this hearing today.
    Continuing difficulties surrounding implementation of the 
Endangered Species Act remain a clear problem for many in Colorado. 
From politicizing research to stopping property owners in their tracks, 
one ESA listing in my area has become very contentious.
    The Preble's Meadow Jumping Mouse. This and similar mice are 
located throughout half of the North American continent.
    The scientist who originally classified the Preble's mouse as a 
subspecies, Dr. Krutzsch, has since recanted his original work and no 
longer supports the original classification. Numerous recent scientific 
studies have concluded that the Preble's mouse is both physically and 
genetically indistinguishable from other similar mice. It should never 
have been listed.
    With scientific evidence to the species' abundance and with the 
negative economic impacts on Colorado's economy, this listing is a 
classic example of environmental activists' abuse of federal ESA law to 
stop growth and development.
    I support delisting of the Preble's mouse from Colorado's 
Threatened and Endangered Species List. The Fish and Wildlife Service 
has already removed its listing in Wyoming, and rightfully so. But in 
defiance of common sense, the mouse is suddenly threatened when you 
cross the state line going south.
    The history of the ESA reveals an abysmal record of species 
recovery, less than one percent, at the great cost of loss of property 
rights, restricted access to public lands, and lawsuit abuse.
    To our colleagues joining us today and their constituents, I 
sympathize with all those who've been caught in the middle of the ESA's 
crosshairs. It's time for Congress to make serious reform of the 
Endangered Species Act a reality.
    Thank you, Mr. Chairman.
                                 ______
                                 
    The Chairman. We will now proceed to our first panel 
composed of the following members: Robin Nazzaro, the Director 
of the Natural Resources and Environment, U.S. Government 
Accountability Office; R. Lyle Laverty, the Assistant Secretary 
for Fish and Wildlife and Parks, U.S. Department of the 
Interior, accompanied by Ren Lohoefener of the Fish and 
Wildlife Service, U.S. Department of Interior, and Ed Shepard, 
Bureau of Land Management, U.S. Department of Interior; and our 
third panelist is Jane Luxton, the General Counsel, National 
Oceanic and Atmospheric Administration, U.S. Department of 
Commerce.
    Ladies and gentlemen, we welcome you to our Committee. We 
have your prepared testimony, and it will be made part of the 
record as if actually read. You are encouraged to summarize 
within five minutes, and may proceed as you desire.
    Ms. Nazzaro. I will go first.
    The Chairman. We will go with Ms. Nazzaro first then.

  STATEMENT OF ROBIN NAZZARO, DIRECTOR, NATURAL RESOURCES AND 
       ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Ms. Nazzaro. Thank you, Mr. Chairman and Members of the 
Committee. I am pleased to be here today to discuss the 
Endangered Species Act decision making at the Department of the 
Interior's U.S. Fish and Wildlife Service.
    As has been noted, recent controversy has surrounded 
decisions specifically over whether the Service bases its 
decisions on scientific data or on political considerations. 
Generally, Interior and the Service are required to use the 
best available scientific information when making key decisions 
under ESA.
    Given this recent controversy, Interior directed the 
Service to review ESA decisions to determine which decisions 
may have been unduly influenced. In this action, the Service 
identified eight decisions for potential revision.
    My statement today will address three issues: What types of 
decisions, if any, were excluded from the Service's review that 
may have been inappropriately influenced; to what extent the 
Service's May 2005 informal guidance affected the processing of 
petitions to list a species, which we refer to as the 90-day 
petition; and to what extent the Service has, before delisting 
species, met recovery criteria.
    In summary, we found that several types of decisions were 
excluded from the Service's review of decisions that may have 
been inappropriately influenced. First, while the Service 
focused solely on whether former Deputy Assistant Secretary 
Julie MacDonald influenced the decision directly, we found that 
other Interior officials also influenced some ESA decisions.
    For example, after reviewing a petition to list the Miami 
blue butterfly on an emergency basis, officials at all levels 
supported a recommendation for listing the species. Citing a 
Florida state management plan and the existence of a captive 
bred population, however, an Interior official besides Ms. 
MacDonald determined that emergency listing was not warranted.
    The second criterion was that the scientific basis of the 
decision had been compromised. This criterion excluded policy 
decisions that limited the application of science. Under Ms. 
MacDonald, several informal policies were established that 
influenced how science was to be used when making ESA 
decisions. For example, a practice was developed that Service 
staff should generally not use site recovery plans, which 
contain important information when developing critical habitat 
designations.
    Third, the Service excluded decisions that were changed, 
but not significantly or to the point of negative impact on the 
species. For example, under Ms. MacDonald's influence, 
subterranean waters were removed from the critical habitat 
designation for the Comal Springs invertebrates because the 
Service believed aboveground waters were more important 
habitat.
    Finally, we identified several other categories of 
decisions that were excluded, including decisions that could 
not be reserved, such as decisions that had already been 
addressed by the courts or where development had already 
occurred and the habitats had been destroyed.
    Regarding the May 2005 informal guidance on the processing 
of 90-day petitions, concerns were raised that this guidance 
would bias petition findings against listing species. In our 
survey of 54 petitioned findings issued by the Service from 
2005 to 2007, we found that biologists used information in 
addition to that cited by the petitioner for both support and 
to refute listing petitions. Thus, this guidance had no 
substantive effect on petition findings.
    The Service recognizes the need for guidance to eliminate 
confusion and inconsistency in the processing of 90-day 
petitions, but we note that the need to finalize this guidance 
is more urgent than ever with the Service's recent receipt of 
two petitions to list 681 species since we found that none of 
the petitioned findings we reviewed were issued within the 
desired 90-day timeframe.
    During 2005 through 2007, the median processing time was 
900 days, or about two and a half years, with a range of 100 
days to over 15 years. Additionally, this Service faces several 
challenges responding to court decisions issued since 2004 in 
the processing of these 90-day petitions.
    Finally, of the eight species listed because of recovery 
from 2000 to 2007, the Service determined that recovery 
criteria were completely met for five species and partially met 
for the remaining three species. Although the ESA does not 
explicitly require the Service to follow recovery plans when 
delisting species, the courts have held that ESA's listing and 
delisting threat factors must be addressed to the maximum 
extent practicable when developing recovery criteria.
    In 2006, we found that only five of 107 recovery plans 
contained either recovery criteria to demonstrate consideration 
of these threat factors, or a statement about why it was not 
practicable to include such criteria. In January of this year 
the Director of the Service issued a memorandum requiring all 
new and revised recovery plans to include criteria addressing 
each of the five threat factors. Assuming successful 
implementation of this directive, we believe that future 
delistings will more likely meet recovery criteria and address 
ESA's factors.
    Mr. Chairman, this concludes my prepared statement. I would 
be happy to respond to any questions you or other Members of 
the Committee may have at this time.
    [The prepared statement of Ms. Nazzaro follows:]

    Statement of Robin M. Nazzaro, Director, Natural Resources and 
      Environment, United States Government Accountability Office

    Mr. Chairman and Members of the Committee:
    I am pleased to be here today to discuss our work related to 
Endangered Species Act (ESA) decision making and allegations that 
implementation of the act has been tainted by political interference. 
\1\ Recent controversy has surrounded decisions by the Department of 
the Interior's (Interior) U.S. Fish and Wildlife Service (Service), 
specifically, over the role that ``sound science'' plays in decisions 
made under the ESA--that is, whether the Service bases its decisions on 
scientific data or on political considerations. Generally, Interior and 
the Service are required to use the best available scientific 
information when making key ESA decisions. At Interior some of the 
controversy centered on whether a former Deputy Assistant Secretary, 
Julie MacDonald, improperly influenced ESA decisions so as to limit 
protections for threatened and endangered species. On the basis of an 
anonymous complaint in April 2006, Interior's Office of Inspector 
General began investigating Ms. MacDonald's activities and whether her 
involvement in ESA implementation had undermined species protection. 
\2\ Ms. MacDonald resigned on May 1, 2007, and little over a week 
later, the House Committee on Natural Resources held a hearing on 
political influence in ESA decision making. \3\ After the hearing, 
Interior asked the Service to determine which of its ESA decisions may 
have been inappropriately influenced by Ms. MacDonald.
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    \1\ The ESA requires that the law be implemented by the Secretaries 
of the Interior and Commerce, who have delegated implementation 
authority to the U.S. Fish and Wildlife Service and the National 
Oceanic and Atmospheric Administration's Fisheries Service, (formerly 
the National Marine Fisheries Service) respectively. The U.S. Fish and 
Wildlife Service is responsible for implementing the ESA for freshwater 
and terrestrial species. The National Oceanic and Atmospheric 
Administration's Fisheries Service is responsible for implementing the 
ESA for most marine species and anadromous fishes (which spend portions 
of their lifecycle in both fresh and salt water).
    \2\ Department of the Interior, Office of Inspector General, 
Investigative Report on Allegations against Julie MacDonald, Deputy 
Assistant Secretary, Fish, Wildlife and Parks (Washington, D.C.: Mar. 
23, 2007). The Inspector General concluded that Ms. MacDonald had 
violated federal rules by sending internal agency documents to industry 
lobbyists. The Office of Inspector General issued a second 
investigative report on Ms. MacDonald's involvement in an ESA decision 
about the Sacramento splittail fish on November 27, 2007. This 
investigation concluded that Ms. MacDonald stood to gain financially 
from the decision and she should therefore have recused herself. 
Additionally, as of March 31, 2008, the Office of Inspector General was 
conducting a third investigation, concerning potential inappropriate 
political interference in ESA decisions for 20 species.
    \3\ Endangered Species Act Implementation: Science or Politics? 
Oversight Hearing before the House Committee on Natural Resources, 
110th Cong. (2007).
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    In response to this directive, the Service identified eight 
decisions for further review, generally according to the following 
three criteria: (1) whether Ms. MacDonald influenced the decision 
directly, (2) was the scientific basis of the decision compromised, and 
(3) did the decision significantly change and result in a potentially 
negative impact on the species. The eight decisions selected for 
further review were out of a universe of more than 200 ESA decisions 
reviewed by Ms. MacDonald during her almost 5 years of employment at 
Interior. Upon further review, the Service concluded that seven of the 
eight selected decisions warranted revision. The Service has proposed 
revisions for three of the decisions and intends to revise the 
remaining decisions, as appropriate, in the coming years.
    On December 17, 2007, we briefed your staff on our findings related 
to our work on the Service's review of ESA decisions that may have been 
inappropriately influenced. This testimony formally conveys the 
information provided during that briefing, as updated to reflect the 
most recent developments (see appendix III). In addition, this 
testimony presents the results of our work conducted since the December 
2007 briefing on two other ESA issues.
    The purpose of the ESA is to conserve threatened and endangered 
species and the ecosystems on which they depend. The act requires 
listing a species as endangered if it faces extinction throughout all 
or a significant portion of its range and as threatened if it is likely 
to become endangered in the foreseeable future. \4\ Specifically, in 
determining whether to list or delist a species, the Service evaluates 
the following five threat factors contained in the act:
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    \4\ 16 U.S.C. Sec. Sec. 1532(6), (20); 1533(a).
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    1.  whether a species' habitat or range is under a present or 
potential threat of destruction, modification, or curtailment;
    2.  whether the species is subject to overuse for commercial, 
recreational, scientific, or educational purposes;
    3.  the risk of existing disease or predation;
    4.  whether existing regulatory mechanisms are adequate; and
    5.  whether other natural or manmade factors affect a species' 
continued existence. \5\
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    \5\ 16 U.S.C. Sec. 1533(a)(1).
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    The process to list a species begins either through the Service's 
own initiative or through a petition (referred to as a 90-day petition) 
from an ``interested person,'' and it is governed by the ESA, federal 
regulations, and other guidance that the Service may issue. The Service 
may initiate a review of species without a petition by conducting a 
candidate assessment to determine whether a species ought to be listed. 
\6\ A species may also be listed through the petition process. The ESA 
directs the Service to make a finding within 90 days (to the maximum 
extent practicable) after receiving a petition ``as to whether the 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted.'' \7\ Federal 
regulations define ``substantial information'' as the amount of 
information that would lead a reasonable person to believe that the 
petitioned action may be warranted. \8\ If the Service determines that 
the listing process should proceed, it issues a ``substantial'' 90-day 
finding, then conducts an in-depth 12-month review of the status of the 
species to determine if, according to the best available scientific and 
commercial information, the petitioned action is warranted. If the 
Service determines that the petition does not present credible evidence 
supporting plausible claims, it issues a negative, ``not substantial'' 
90-day finding. A negative 90-day finding can be challenged in court.
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    \6\ The Service's candidate conservation program maintains a list 
of species for which listing is warranted but precluded by other 
higher-priority actions. According to Service officials, the candidate 
conservation program can support actions to reduce or remove threats so 
that listing may become unnecessary. Candidate species may be 
identified through assessments initiated by the Service or through a 
12-month finding on a petition to list a species when the finding 
concludes that listing is warranted but precluded by higher-priority 
listing actions. Candidate assessments use the same ``best available 
science'' standard as used for a 12-month finding on a petition to list 
a species.
    \7\ 16 U.S.C. Sec. 1533(b)(3)(A).
    \8\ 50 C.F.R. Sec. 424.14(b).
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    In May 2005, the Service distributed a guidance document via e-mail 
to its endangered-species biologists that could have been interpreted 
as instructing them to use additional information collected to evaluate 
a 90-day petition only to refute statements made in the petition. 
Concerns then arose that this informal guidance would bias petition 
findings against listing species, thereby reducing the number of 
species that could have a chance at protection under the ESA. \9\
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    \9\ Seventy-two percent of the 90-day petition findings published 
in the Federal Register from calendar years 2005 through 2007 were on 
petitions to list species as threatened or endangered. According to 
federal regulations (50 C.F.R. Sec. 424.14), petitioned actions may 
include (1) petitions to list, delist, or reclassify species 
(reclassification would involve ``up-listing'' a species from 
threatened to endangered or ``down-listing'' a species from endangered 
to threatened); (2) petitions to revise critical habitat; and (3) 
petitions to designate critical habitat or adopt special rules. The 
remaining 28 percent of the 90-day petition findings published in the 
Federal Register from calendar years 2005 through 2007 were on 
petitions to delist species, reclassify species, or revise critical 
habitat designations.
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    Environmental groups and the courts have also raised concern about 
the implementation of recovery plans for delisted species, 
specifically, that the Service has delisted species without fulfilling 
recovery criteria outlined in recovery plans. The ESA generally 
requires the Service to develop and implement recovery plans for the 
conservation of listed species.\10\ Since the act was amended in 1988, 
the Service has been required to incorporate, to the maximum extent 
practicable, several key elements in each recovery plan, including 
objective, measurable recovery criteria that, when met, would enable 
the species to be removed from the list of threatened or endangered 
species.\11\ Recovery plans are not regulatory documents. Rather, they 
provide guidance on methods to minimize threats to listed species and 
on criteria that may be used to determine when recovery is achieved. To 
develop and implement a recovery plan, the Service may appoint a 
recovery team consisting of ``appropriate public and private agencies 
and institutions, and other qualified persons.'' After a recovery plan 
has been drafted or revised, the Service is required to provide public 
notice and an opportunity for public review and comment. Although the 
ESA does not explicitly require the Service to follow recovery plans 
when delisting species, \12\ the possible high level of public 
involvement in the development of recovery plans creates the 
expectation that the Service will adhere to them.
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    \10\ 16 U.S.C. Sec. Sec. 1533(f)(1)-(5). Recovery plans are not 
required if the Service determines that a plan will not promote the 
species' conservation.
    \11\ 16 U.S.C. Sec. 1533(f)(1)(B). As originally enacted in 1973, 
the ESA did not contain a requirement for recovery plans, see Pub. L. 
No. 93-305, 87 Stat. 884 (1973). A general provision on recovery plans 
was first added in 1978 by Pub. L. No. 95-632, Sec. 11(5), 92 Stat. 
3751, 3766 (1978). The general provision was amended in 1982 by Pub. L. 
No. 97-304, Sec. Sec. 2(a)(4)(B)-(D), 96 Stat. 1411, 1415 (1982). The 
detailed provisions that exist today on recovery plans were largely 
added in 1988 by Pub. L. No. 100-478, title I, Sec. 1003, 102 Stat. 
2306-7 (1988).
    \12\ See 16 U.S.C. Sec. 1533(a)(1); 50 C.F.R. Sec. 424.11(c).
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    In this context, from our December 2007 briefing, we are reporting 
on the types of ESA decisions, if any, excluded from the Service's 
selection process of ESA decisions that had potentially been 
inappropriately influenced. Additionally, we are reporting on the 
extent to which the Service's May 2005 informal guidance affected the 
Service's decisions published from 2005 through 2007 on petitions to 
list or delist species and the extent to which the Service determined, 
before delisting, whether species met recovery criteria outlined in 
recovery plans.
    To determine what types of ESA decisions, if any, were excluded 
from the Service's selection process for decisions to review, we 
interviewed the Director of the Service and all eight regional 
directors, and we conducted site visits, phone interviews, or both with 
staff from ten field offices in five regions that were actively engaged 
in ESA decision making. We also reviewed Service policies and 
procedures for making ESA decisions, as well as documentation on the 
Service's process for selecting decisions to review and on the status 
of the review. To evaluate the extent to which the May 2005 informal 
guidance affected 90-day petition findings, we surveyed 44 current and 
former Service biologists responsible for drafting 54 90-day petition 
findings issued from 2005 through 2007. We included only listing and 
delisting petitions for U.S. species; for this reason and others, we 
excluded 13 petition findings between 2005 and 2007 from our sample. 
\13\ To determine the extent to which the Service met recovery criteria 
outlined in recovery plans before delisting a species, we developed a 
list of all U.S. species delisted because of recovery from 2000 through 
2007 and reviewed recovery plans and Federal Register proposed and 
final delisting decisions (rules); this information indicated whether 
the Service believed that it had met the criteria laid out in the 
recovery plans for the eight delisted U.S. species we identified.
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    \13\ We excluded 13 petition findings from our 2005-2007 sample for 
the following reasons: 5 had been overturned by the courts or were 
being redone as a result of a settlement agreement; 3 involved up-
listing already protected species from threatened to endangered; 2 
involved ongoing litigation; 2 involved species located outside the 
United States; and 1 involved a petition to revise a critical habitat 
designation for a species that was already protected.
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    We conducted this performance audit from August 2007 to May 2008 in 
accordance with generally accepted government auditing standards. Those 
standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe that 
the evidence obtained provides a reasonable basis for our findings and 
conclusions based on our audit objectives. A more detailed discussion 
or our scope and methodology appears in Appendix I. Appendix II 
presents a table of the 90-day petition findings included and excluded 
from our sample.
Summary
    Under the criteria the Service used to select decisions to review 
for possible inappropriate influence, several types of ESA decisions 
were excluded. First, while the Service focused solely on Ms. 
MacDonald, we found that other Interior officials also influenced some 
ESA decisions. For example, after reviewing a petition to list the 
Miami blue butterfly on an emergency basis, Service officials at all 
levels supported a recommendation for listing the species. Citing a 
Florida state management plan and existence of a captive-bred 
population, however, an Interior official besides Ms. MacDonald 
determined that emergency listing was not warranted, and the blue 
butterfly was designated as a candidate instead of a listed species. 
Second, the Service excluded policy decisions that limited the 
application of science, focusing instead only on those decisions where 
the scientific basis of the decision may have been compromised. Under 
Ms. MacDonald, several informal policies were established that 
influenced how science was to be used when making ESA decisions. Third, 
the Service excluded decisions that were changed but not significantly 
or to the point of negative impact on the species. Finally, we 
identified several other categories of decisions that in some or all 
cases were excluded from the Service's selection process. For example, 
decisions were excluded from the Service's selection process if it was 
determined that the decision could not be reversed or if it could not 
be conclusively determined that Ms. MacDonald changed the decision.
    While the Service's May 2005 informal guidance had no substantive 
effect on the processing of 90-day petitions, the Service still faces 
other challenges in processing these petitions. Stakeholders have 
expressed concern that the May 2005 guidance was slanted more toward 
refuting petitioners' listing claims, rather than encouraging Service 
biologists to use information to both support and refute listing 
petitions; consequently, they feared that a greater number of negative 
90-day petition findings would result. In our survey of 54 90-day 
petition findings issued by the Service from 2005 through 2007, we 
found that biologists used information in addition to that cited by the 
petitioner to both support and refute claims made in the petitions, as 
applicable, including during the 18-month period when the May 2005 
informal guidance was being used. In November 2006, the Service 
distributed new draft guidance on the processing of 90-day petitions, 
which specified that additional information in Service files could be 
used to support and refute issues raised in the petition. Although the 
May 2005 informal guidance did not have a substantive effect on the 
Service's processing of 90-day petitions, the Service faces challenges 
in processing petitions in a timely manner and in responding to court 
decisions issued since 2004. None of the 90-day petition findings 
issued from 2005 through 2007 were issued within the desired 90-day 
time frame. During this period, the median processing time was 900 
days, or about 2.5 years, with a range of 100 days to 5,545 days (more 
than 15 years). Additionally, the Service faces several challenges in 
responding to court decisions issued since 2004. For example, the 
Service has not developed new official guidance on how to process of 
90-day petitions after a portion of the prior guidance was invalidated 
by the courts.
    Of the eight U.S. species delisted from 2000 through 2007 because 
of recovery, the Service reported that recovery criteria were 
completely met for five species and partially met for the remaining 
three species because some recovery criteria were outdated or otherwise 
not achievable. When the delistings were first proposed, however, only 
two of the eight species had completely met all their respective 
recovery criteria. While the recovery criteria were not completely met 
in every case for each of the species we reviewed, the Service 
determined that the five threat factors listed in the ESA no longer 
posed a significant enough threat to the continued existence of the 
species to warrant continued listing as threatened or endangered. Since 
the ESA was amended in 1988, the Service has been required to 
incorporate in each recovery plan, to the maximum extent practicable, 
objective, measurable criteria that when met would result in a 
determination, in accordance with the provisions of the ESA, that the 
species should be removed from the list of threatened and endangered 
species (i.e., delisted). Courts have held that the Service must 
address the ESA's five threat factors for listing/delisting in 
developing recovery criteria, to the maximum extent practicable. In a 
2006 report, we found that only 5 of the 107 recovery plans we reviewed 
included recovery criteria that addressed all five threat factors. We 
recommended that the Service include in recovery planning guidance 
direction that all new and revised recovery plans contain either 
recovery criteria to demonstrate consideration of all five threat 
factors or a statement about why it is not practicable to include such 
criteria. In January 2008, in response to our recommendation, the 
Director of the Service issued a memorandum requiring all new and 
revised recovery plans to include criteria addressing each of the five 
threat factors. Assuming successful implementation of this directive, 
future delistings should meet the criteria laid out in recovery plans, 
except in situations where new information indicates criteria are no 
longer valid.
    Although we requested comments from Interior on our findings and 
conclusions, none were provided in time for them to be included as part 
of this testimony.
Background
    In addition to 90-day petition findings, 12-month status reviews, 
listings, and delistings, other key categories of ESA decisions include 
critical habitat designations, recovery plans, section 7 consultations, 
and habitat conservation plans (see table 1). \14\
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    \14\ Under the ESA the term ``species'' includes any distinct 
population segment of any species of vertebrate fish or wildlife which 
interbreeds when mature. 16 U.S.C. Sec. 1532(16). 

[GRAPHIC] [TIFF OMITTED] T2492.040

    Service staff at headquarters, eight regional offices, and 81 field 
offices are largely responsible for implementing the ESA. Field office 
staff generally draft ESA decisions; listing, delisting, and critical 
habitat decisions are forwarded to regional and headquarters offices 
for review. Service headquarters forwards listing decisions to 
Interior's Office of Assistant Secretary for Fish and Wildlife and 
Parks for review, although it is the Service Director who generally 
approves the final decisions. The Assistant Secretary of the Interior 
for Fish and Wildlife and Parks makes final critical habitat decisions, 
after considering the recommendation of the Service and considering 
economic, national security, and other factors. Although the Service is 
responsible for making science-based decisions, Interior takes 
responsibility for applying policy and other considerations to 
scientific recommendations.
    In most cases, ESA decisions must be based at least in part on the 
best available scientific information (see table 1). To ensure that the 
agency is applying the best available scientific information, the 
Service consults with experts and considers information from federal 
and state agencies, academia, other stakeholders, and the general 
public; some ESA decisions are both ``peer reviewed'' and reviewed 
internally to help ensure that they are based on the best available 
science. Nevertheless, because of differing interpretations of ``best 
available scientific information'' and other key concepts from the ESA, 
such as``substantial'' and ``may be warranted,'' conservation advocacy 
groups have expressed concerns that ESA decisions are particularly 
vulnerable to political interference from officials within Interior.
    While Ms. MacDonald was at Interior in two positions from July 7, 
2002, through May 1, 2007, she reviewed more than 200 ESA decisions. 
After a May 9, 2007, congressional hearing, Interior's Deputy Secretary 
directed the Service Director to examine all work products produced by 
the Service and reviewed by Ms. MacDonald that could require additional 
review because of her involvement. Service Director Hall said the 
selection process should include any type of ESA decision made during 
Ms. MacDonald's time in office. He delegated the selection process to 
the regional directors and granted them considerable discretion in 
making their selections for potential revision.
    The regions generally applied three criteria to identify decisions 
for potential revision: (1) Ms. MacDonald influenced the decision 
directly, (2) the scientific basis of the decision was compromised, and 
(3) the decision was significantly changed and resulted in a 
potentially negative impact on the species. Using these criteria, the 
Service ultimately selected eight decisions for further review to 
determine if the decision warranted revision. \15\ After further 
review, the Service concluded that seven of the eight decisions 
warranted revision (see table 2).
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    \15\ Initially, the regional offices identified a total of 11 
decisions for potential revision. One of these, on the Mexican garter 
snake, was subsequently withdrawn after further discussion determined 
that the decision was made internally by Service headquarters. Two 
additional decisions, regarding the bull trout and the marbled 
murrelet, were withdrawn by the region after it was determined that 
neither decision involved the inappropriate use of science but rather 
involved policy interpretations. 

[GRAPHIC] [TIFF OMITTED] T2492.041

Several Types of Decisions Were Excluded from the Service's Review of 
        Potentially Inappropriately Influenced ESA Decisions
    Several types of decisions were excluded from the Service's review 
of decisions that may have been inappropriately influenced. First, 
while the Service focused solely on Ms. MacDonald, we found that other 
Interior officials also influenced some ESA decisions. Ms. MacDonald 
was the primary reviewer of most ESA decisions during her tenure, but 
other Interior officials were also involved. For example, in the 
Southeast, after reviewing a petition to list the Miami blue butterfly 
on an emergency basis, Service officials at all levels supported a 
recommendation for listing the species. Citing a Florida state 
management plan and existence of a captive-bred population, however, an 
Interior official other than Ms. MacDonald determined that emergency 
listing was not warranted, and the blue butterfly was instead 
designated as a candidate, not a listed species.
    Second, the Service excluded policy decisions that limited the 
application of science, focusing instead only on those decisions where 
the scientific basis of the decision may have been compromised. Under 
Ms. MacDonald, several informal policies were established that 
influenced how science was to be used when making ESA decisions. For 
example, a practice was developed that Service staff should generally 
not use or cite recovery plans when developing critical habitat 
designations. Recovery plans can contain important scientific 
information that may aid in making a critical habitat designation. One 
Service headquarters official explained, however, that Ms. MacDonald 
believed that recovery plans were overly aspirational and included more 
land than was absolutely essential to the species' recovery. Under 
another informal policy, the ESA wording ``occupied by the species at 
the time it is listed'' was narrowly applied when designating critical 
habitat. Service biologists were restricted to interpreting occupied 
habitat as only that habitat for which they had records showing the 
species to be present within specified dates, such as within 10 years 
of when the species was listed. In the case of the proposed critical 
habitat for the bull trout, Ms. MacDonald questioned Service 
biologists' conclusions about the species' occupied habitat. As a 
result, some proposed critical habitat areas were removed, in part 
because occupancy by the species could not be ascertained.
    Third, the Service excluded decisions that were changed but not 
significantly or to the point of negative impact on the species. For 
example, under Ms. MacDonald's influence, subterranean waters were 
removed from the critical habitat designation for Comal Springs 
invertebrates. Service staff said they believed that the exclusion of 
subterranean waters would not significantly affect the species because 
aboveground waters were more important habitat. They also acknowledged 
that not much is known about these species' use of subterranean waters.
    Finally, we identified several other categories of decisions that, 
in some or all cases, were excluded from the Service's selection 
process. For example, in some cases that we identified, decisions that 
had already been addressed by the courts were excluded from the 
Service's selection process; decisions that could not be reversed were 
also excluded. In the case of the Palos Verdes blue butterfly, Navy-
owned land that was critical habitat was exchanged after involvement by 
Ms. MacDonald in a section 7 consultation. As a result, the habitat of 
the species' last known wild population was destroyed by development, 
and therefore reversing the decision would not have been possible. 
Additionally, decisions were excluded from the Service's selection 
process if it was determined that review would not be an efficient use 
of resources or if it could not be conclusively determined that Ms. 
MacDonald altered the decision. Several Service staff cited instances 
where they believed that Ms. MacDonald had altered decisions, but 
because the documentation was not clear, they could not ascertain that 
she was responsible for the changes. Additionally, decisions that were 
implicitly attributed to Ms. MacDonald were excluded from the selection 
process. Service staff described a climate of ``Julie-proofing'' where, 
in response to continual questioning by Ms. MacDonald about their 
scientific reasoning, they eventually learned to anticipate what might 
be approved and wrote their decisions accordingly.
The Service's May 2005 Informal Guidance Had No Substantive Effect on 
        90-Day Petition Findings, Although Other Challenges Exist
    While the Service's May 2005 informal guidance had no substantive 
effect on the processing of 90-day petition findings, the Service still 
faces several other challenges in processing these petitions. 
Stakeholders have expressed concern that the wording of the May 2005 
guidance was slanted more toward refuting petitioners' listing claims, 
rather than encouraging Service biologists to use information to both 
support and refute listing petitions; consequently, they feared that a 
greater number of negative 90-day petition findings would result. 
According to a senior Service official, it was never the Service's 
position that information collected to evaluate a petition could be 
used to support only one side, specifically, only to refute the 
petition. Rather, according to a senior Service official, its position 
is and has been that additional collected information can be used to 
either support or refute information presented in the petition; any 
additional information is not, however, to be used to augment or 
supplement a ``weak'' petition by raising new issues not already 
presented. According to the ESA, the petition itself must present 
``substantial scientific or commercial information indicating that the 
petitioned action may be warranted.'' \16\ Our survey of Service 
biologists responsible for drafting the 90-day petition findings issued 
from 2005 through 2007 found that the biologists generally used 
additional information, as applicable, to support as well as refute 
information in the petitions. \17\ The Service is facing several 
challenges with regard to the processing of 90-day petition findings. 
In particular, the Service finds it difficult to issue decisions within 
the desired 90-day time frame and to adjust to various court decisions 
issued in the last 4 years.
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    \16\ 16 U.S.C. Sec. 1533(b)(3)(A).
    \17\ In making a 90-day petition finding, the Service must consider 
whether the petition: (1) clearly indicates the administrative measure 
recommended and gives scientific and common names of the species 
involved; (2) contains detailed narrative justification for the 
recommended measure, describing, according to available information, 
past and present numbers and distribution of the species involved and 
any threats faced by the species; (3) provides information on the 
status of the species over all or a significant portion of its range; 
and (4) is accompanied by appropriate supporting documentation in the 
form of bibliographic references, reprints of pertinent publications, 
copies of reports or letters from authorities, and maps. 50 C.F.R. 
Sec.  424.14(b)(2).
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Notwithstanding the Service's May 2005 Informal Guidance, Additional 
        Information Collected by Service Biologists Was Used to Support 
        and Refute 90-day Petitions
    In our survey of 44 Service biologists who prepared 54 90-day 
petition findings from 2005 through 2007, we found that additional 
information collected to evaluate the petitions was generally used, as 
applicable, to both support and refute information in the petitions, 
including during the 18-month period when the May 2005 informal 
guidance was being used. \18\ The processing of 90-day petition 
findings is governed by the ESA, federal regulations, and various 
guidance documents distributed by the Service. To direct the 
implementation of the law and regulations, and to respond to court 
decisions, the Service issues guidance, which is implemented by Service 
staff in developing 90-day petition findings. This guidance can come in 
formal policies and memorandums signed by the Service Director, or 
informal guidance not signed by the Director but distributed by 
headquarters to clarify what information should be used and how it 
should be used in processing petitions. In July 1996, the Service 
issued a formal policy, called Petition Management Guidance, governing 
90-day petition findings and 12-month status reviews. \19\ A component 
of this document was invalidated by the District of Columbia district 
court in June 2004. \20\ According to senior Service officials, since 
2004 the Service has distributed a series of instructions through e-
mails, conference calls, and draft guidance documents to clarify the 
development of 90-day petition findings. For example, in May 2005, the 
Service distributed via e-mail an informal guidance document that 
directed its biologists to create an outline listing additional 
information--that is, information not cited or referred to in a 
petition--that refuted statements made in the petition; biologists were 
not to list in the outline any additional information that may have 
clarified or supported petition statements. \21\
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    \18\ A senior Service official stated that, according to memory, no 
other informal guidance documents were issued during this 18-month 
period. If specific questions were asked by a particular region or 
field office, however, informal guidance could have been given by 
officials at Service headquarters through e-mail.
    \19\ See 61 Fed. Reg. 36075 (July 9, 1996). This guidance was 
issued jointly by the Service and the National Oceanic and Atmospheric 
Administration's Fisheries Service.
    \20\ ALA v. Norton, Civ. No. 00-2339, 2004 WL 3246687 at *3 (D.D.C. 
June 2, 2004).
    \21\ A senior Service official stated that the emphasis was put on 
compiling information to refute petitioners' claims because if a 
petition was found to be ``not substantial,'' the 90-day petition 
finding was the agency's final action on that petition. The Service 
therefore needed to adequately document in the administrative record 
the reasons that the petition was denied.
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    We identified a universe of 67 90-day petition findings issued by 
the Service from 2005 through 2007. To focus on how the Service used 
information to list or delist U.S. species, we surveyed Service 
biologists responsible for drafting 54 of the 67 90-day petition 
findings. For the 54 90-day petitions included in our survey, 40 were 
listing petitions, and 14 were delisting petitions; 25 resulted in 
positive 90-day petition findings, and 29 resulted in negative 90-day 
petition findings (see table 3).
[GRAPHIC] [TIFF OMITTED] T2492.042

    Note: The first time period, January 2005 through April 2005, 
includes the 90-day petition findings in our sample issued before the 
May 2005 informal guidance was being used. The second time period, May 
2005 through November 2006, includes the 18-month period when the May 
2005 information guidance was being used. The third time period, 
December 2006 through December 2007, includes the 90-day petition 
findings in our sample issued after the May 2005 informal guidance was 
superseded by new draft guidance in November 2006.
    Five of these decisions have been or are being revised as the 
result of litigation, and two additional decisions were involved in 
ongoing litigation as of March 31, 2008.

    In November 2006, the Service distributed new draft guidance on the 
processing of 90-day petitions, which specified that additional 
information in Service files could be used to refute or support issues 
raised in the petition but not to ``augment a weak petition'' by 
introducing new issues. For example, if a 90-day petition to list a 
species claimed that the species was threatened by predation and 
habitat loss, the Service could not supplement the petition by adding 
information describing threats posed by disease. The May 2005 informal 
guidance was thus in use until this November 2006 guidance was 
distributed, or approximately 18 months.
    Our survey results showed that in most cases, the additional 
information collected by Service biologists when evaluating 90-day 
petitions was used to support as well as refute information in 
petitions (see table 4). According to the Service biologists we 
surveyed, additional information was used exclusively to refute 
information in 90-day petitions in only 8 of 54 cases. In these 8 
cases, the biologists said, this approach was taken because of the 
facts, circumstances, and the additional information specific to each 
petition, not because they believed that it was against Service policy 
to use additional information to support a petition. In particular, 
with regard to the 4 petitions processed during May 2005 through 
November 2006 for which additional information was used exclusively to 
refute petition information, the biologists stated that the reasons 
they did not use information to support claims made in the petition was 
that either the claims themselves did not have merit or the information 
reviewed did not support the petitioner's claims. Three of the four 
biologists responsible for these petitions also stated that they did 
not think it was against Service policy to use additional information 
to support issues raised in a petition. The fourth biologist was 
uncertain whether it was against Service policy to support issues 
raised in a petition. \22\
---------------------------------------------------------------------------
    \22\ The biologist did not cite the May 2005 guidance when asked 
what guidance was followed in evaluating the petition, so it is 
unlikely that the finding was affected by the May 2005 guidance 
document.
[GRAPHIC] [TIFF OMITTED] T2492.043

The Service Faces Challenges in Processing 90-Day Petitions in a Timely 
        Manner and in Responding to Court Decisions Issued Since 2004
    While the May 2005 informal guidance did not have a substantive 
effect on the Service's processing of 90-day petitions, the Service 
still faces challenges in processing 90-day petitions in a timely 
manner and in responding to court decisions issued since 2004. None of 
the 90-day petition findings issued from 2005 through 2007 were issued 
within the desired 90-day time frame. During this period, the median 
processing time was 900 days, or about 2.5 years, with a range of 100 
days to 5,545 days (more than 15 years). \23\ According to Service 
officials, almost all of their ESA workload is driven by litigation. 
Petitioners have brought a number of individual cases against the 
Service for its failure to respond to their petitions in a timely 
manner. This issue presents continuing challenges because the Service's 
workload increased sharply in the summer of 2007, when it received two 
petitions to list 475 and 206 species, respectively.
---------------------------------------------------------------------------
    \23\ Processing times were calculated as number of days from the 
date the Service received the petition (or the date the petition was 
written, if the date of receipt was unavailable) to the date the 
associated finding was published in the Federal Register.
---------------------------------------------------------------------------
    The Service is also facing several management challenges stemming 
from a number of court decisions since 2004:
      According to senior Service officials, the Service 
currently has no official guidance on how to develop 90-day petition 
findings, partially because of a 2004 court decision invalidating part 
of the Service's 1996 Petition Management Guidance. The Service's 
official 1996 Petition Management Guidance contained a controversial 
provision that treated 90-day petitions as ``redundant'' if a species 
had already been placed on the candidate list via the Service's 
internal process. \24\ In 2004, a federal district court issued a 
nationwide injunction striking down this portion of the guidance. \25\ 
Senior service officials stated that the Service rescinded use of the 
document in response to this court ruling and began an iterative 
process in 2004 to develop revised guidance on the 90-day petition 
process. According to these officials, guidance was distributed in 
piecemeal fashion, dealing with individual aspects of the process in 
the form of e-mails, conference-call discussions, and various informal 
guidance documents. Our survey respondents indicated that the lack of 
official guidance created confusion and inefficiencies in processing 
90-day petitions. Specifically, survey respondents were confused on 
what types of additional information they could use to evaluate 90-day 
petitions--whether they were limited to information in Service files, 
or whether they could use information solicited from their professional 
contacts to clarify or expand on issues raised in the petition. Several 
survey respondents also stated that unclear and frequently changing 
guidance resulted in longer processing times for 90-day petition 
findings, which was frustrating because potentially endangered species 
decline further as the Service determines whether they are worthy of 
protection. Further complicating matters, 31 of the 44 biologists we 
surveyed, or 70 percent, had never drafted a 90-day petition finding 
before. According to a senior Service official, the Service is planning 
to issue official guidance on how 90-day petition findings should be 
developed to eliminate confusion and inconsistencies.
---------------------------------------------------------------------------
    \24\ Some of the 281 species on the candidate list have been 
waiting for a proposed listing decision for more than a decade.
    \25\ALA v. Norton, Civ. No. 00-2339, 2004 WL 3246687 at *3 (D.D.C. 
June 2, 2004) (permanent nationwide injunction based on Gunnison sage 
grouse). See also ALA v. Norton, 242 F. Supp. 2d 1, 18 (2003) 
(declaring this aspect of the guidance to be invalid). The adequacy of 
the guidance was also challenged in a 2001 decision, Center for 
Biological Diversity v. Gale Norton, 254 F.3d 833, 838-40 (2001) 
(holding that provisions of the guidance related to candidate species 
violated the ESA).
---------------------------------------------------------------------------
      With regard to the use of outside information in 
evaluating petitions, the Service must continue to adapt to a number of 
court decisions dating back to 2004 holding that the Service should not 
solicit information from outside sources in developing 90-day petition 
findings. A December 2004 decision by the U.S. District Court for the 
District of Colorado stated that the Service's ``consideration of 
outside information and opinions provided by state and federal agencies 
during the 90-day review was overinclusive of the type of information 
the ESA contemplates to be reviewed at this stage....[and] those 
petitions that are meritorious on their face should not be subject to 
refutation by information and views provided by selected third parties 
solicited by [the Service].'' \26\ Since then, several other courts 
have reached similar conclusions. \27\ Despite the constancy of various 
courts' holdings, 25 out of the 54 90-day petition findings in our 
survey, or 46 percent, were based in part on information from outside 
sources, according to Service biologists.
---------------------------------------------------------------------------
    \26\ Center for Biological Diversity v. Morganweck, 351 F. Supp. 2d 
1137, 1143 (D. Colo. 2004).
    \27\ Colorado River Cutthroat Trout, et al. v. Kempthorne, 448 F. 
Supp. 2d 170 (2006); Western Watersheds Project v. Norton, Civ. No. 06-
127, 2007 WL 2827375 (D. Idaho Sept. 6, 2007) (pygmy rabbit); Center 
for Biological Diversity v. Kempthorne, Civ. No. 07-0038, 2008 WL 
6598322 (D. Ariz. March 6, 2008) (Sonoran desert population of bald 
eagle). The Service's May 2005 informal guidance directed biologists to 
use information in Service files or ``other information,'' which the 
guidance did not elaborate on. The Service's November 2006 draft 
guidance stated that biologists should identify and review ``readily 
available information within Service files'' as part of evaluating 
information contained in petitions. The biologists we surveyed 
expressed confusion and lack of consensus on the meaning of the terms 
``readily available'' and ``within Service files.'' Some Service 
officials were concerned that if information solicited from outside 
sources could not be considered in developing 90-day petition findings, 
many more 90-day petitions would be approved and moved forward for in-
depth 12-month reviews, further straining the Service's limited 
resources.
---------------------------------------------------------------------------
      In addition, the Service must continue to adapt to a 
number of court decisions since 2004 on whether it is imposing too high 
a standard in evaluating 90-day petitions. This issue--essentially, 
what level of evidence is required at the 90-day petition stage and how 
this evidence should be evaluated--goes hand in hand with the issue of 
using additional information outside of petitions in reaching ESA 
decisions. In overturning three negative 90-day petition findings, 
three recent court decisions in 2006 and 2007 have held, in part, that 
the Service imposed too high a standard in evaluating the information 
presented in the petitions. \28\ These court decisions have focused on 
the meaning of key phrases in the ESA and federal regulations, such as 
``substantial'' information, ``a reasonable person,'' and ``may be 
warranted.'' In 2006, the U.S. District Court for the District of 
Montana concluded that the threshold necessary to pass the 90-day 
petition stage and move forward to a 12-month review was ``not high.'' 
\29\ Again, some Service officials are concerned that these recent 
court decisions may lead to approval of more 90-day petitions, thus 
moving them forward for in-depth 12-month reviews and straining the 
Service's limited resources.
---------------------------------------------------------------------------
    \28\ Defenders of Wildlife v. Kempthorne, Civ. No. 05-99 (D. Mont. 
Sept. 29, 2006) (wolverine); Center for Biological Diversity v. 
Kempthorne, Civ. No. 06-04186, 2007 WL 163244 (N.D. Cal. Jan. 19, 2007) 
(Siskiyou Mountains salamander and Scott Bar salamander); Western 
Watersheds Project v. Norton, Civ. No. 06-127, 2007 WL 2827375 (D. 
Idaho Sept. 6, 2007) (pygmy rabbit).
    \29\ Defenders of Wildlife v. Kempthorne, Civ. No. 05-99, slip op. 
at 20 (D. Mont. Sept. 29, 2006).
---------------------------------------------------------------------------
    Beyond these general challenges, the Service's 90-day petition 
finding in a recent case involving the Sonoran Desert population of the 
bald eagle has come under severe criticism by the U.S. District Court 
for the District of Arizona. \30\ The court noted that Service 
scientists were told in a conference call that headquarters and 
regional Service officials had reached a ``policy call'' to deny the 
90-day petition and that ``we need to support [that call].'' A 
headquarters official made this statement even though the Service had 
been unable to find information in its files refuting the petition and 
even though at least some Service scientists had concluded that listing 
may be warranted. The court stated that the Service participants in a 
July 18, 2006, conference call appeared to have received ``marching 
orders'' and were directed to find an analysis that fit a 90-day 
finding that the Sonoran Desert population of the bald eagle did not 
constitute a distinct population segment. The court stated that ``these 
facts cause the Court to have no confidence in the objectivity of the 
agency's decision-making process in its August 30, 2006, 90-day 
finding.'' In contrast, in a September 2007 decision, the U.S. District 
Court for the District of Idaho upheld the Service's ``not 
substantial'' 90-day petition findings on the interior mountain quail 
distinct population segment. \31\
---------------------------------------------------------------------------
    \30\ Center for Biological Diversity v. Kempthorne, Civ. No. 07-
0038, 2008 WL 659822 (D. Ariz. Mar. 6, 2008).
    \31\ Western Watersheds Project v. Hall, Civ. No. 06-0073, 2007 WL 
2790404 (D. Idaho Sept. 24, 2007).
---------------------------------------------------------------------------
Recovery Criteria for Threatened and Endangered Species Were Generally 
        Met in Final Delisting Decisions but Not in Proposed Delisting 
        Decisions
    Of the eight U.S. species delisted from 2000 through 2007 because 
of recovery, the Service reported that recovery criteria were 
completely met for five species and partially met for the remaining 
three species. When the delistings were first proposed, however, the 
respective recovery criteria for only two of the eight species had been 
completely met. Although the ESA does not specifically require the 
Service to meet recovery criteria before delisting a species, courts 
have held that the Service must address the ESA's five threat factors 
for listing/delisting, to the maximum extent practicable, in developing 
recovery criteria. For each of the delisted species that we reviewed, 
the Service determined that the five threat factors listed in the ESA 
no longer posed a significant enough threat to the continued existence 
of the species to warrant continued listing as threatened or 
endangered.
    Table 5 summarizes whether the recovery criteria for the eight 
species delisted from 2000 through 2007 were partially or completely 
met at the proposed rule stage and the final rule stage. At the 
proposed rule stage, only two of the eight species had completely met 
their respective recovery criteria; that fraction increased to five of 
eight at the final rule stage. The period between the proposed rules 
and the final rules ranged from less than 1 year for the gray wolf's 
western Great Lakes distinct population segment to just over 8 years 
for the bald eagle.

[GRAPHIC] [TIFF OMITTED] T2492.044

    A federal district court prevented the delisting of the Sonoran 
Desert population of the bald eagle, pending a 12-month status review 
and lawful determination of its status as a distinct population 
segment.
    For the species where the criteria were not completely met before 
final delisting, the Service indicated that the recovery criteria were 
outdated or otherwise not feasible to achieve. For example, the 
recovery plan for the Douglas County population of Columbian white-
tailed deer was originally developed in 1976 and later updated in 1983. 
The recovery plan recommended maintaining a minimum population of 500 
animals distributed in suitable, secure habitat within Oregon's Umpqua 
Basin. The Service reported it was not feasible to demonstrate, without 
considerable expense, that 500 specific deer live entirely within 
secure lands managed for their benefit, for most deer move between 
public and private lands. Even though this specific recovery criterion 
was not met, the Service indicated that the species warranted delisting 
because of the overall increase in its population and amount of secure 
habitat.
    The West Virginia northern flying squirrel, whose final delisting 
decision was pending at the time of our review, offers an example of a 
species proposed for delisting even though the recovery criteria have 
not been met. The species was proposed for delisting on December 19, 
2006. \32\ The squirrel's recovery plan was developed in 1990 and 
amended in 2001 to incorporate guidelines for habitat identification 
and management in the Monongahela National Forest, which supports 
almost all of the squirrel's populations. The Service asserted that, 
other than the 2001 amendment, the West Virginia northern flying 
squirrel recovery plan is outdated and no longer actively used to guide 
recovery. This was in part because the squirrel's known range at the 
time of proposed delisting was much wider than the geographic recovery 
areas designated in the recovery plan and because the recovery areas 
have no formal or regulatory distinction. In support of its delisting 
decision, the Service indicated that the squirrel population had 
increased and that suitable habitat had been expanding. The Service 
drew these conclusions largely on the basis of a 5-year review--an ESA-
mandated process to ensure the continued accuracy of a listing 
classification--completed in 2006, and not on the basis of the 
squirrel's 1990 recovery plan. The Service also reported that the 
recovery plan's criteria did not specifically address the five threat 
factors.
---------------------------------------------------------------------------
    \32\71 Fed. Reg. 75924 (Dec. 19, 2006).
---------------------------------------------------------------------------
    According to the Service, most recovery plan criteria have focused 
on demographic parameters, such as population numbers, trends, and 
distribution. While the Service acknowledges that these types of 
criteria are valid and useful, it also cautions that, by themselves 
they are not adequate for determining a species' status. The Service 
reports that recovery can be accomplished via many paths and may be 
achieved even if not all recovery criteria are fully met. A senior 
Service official noted that the quality of recovery plans varies 
considerably, and some criteria may be outdated. Furthermore, Service 
officials also noted, recovery plans are fluid documents, and the 
plan's respective criteria can be updated as new threat information 
about a particular species becomes available.
    While the ESA does not specifically require the Service to meet 
recovery criteria before delisting a species, courts have held that it 
must address each of the five threat factors to the maximum extent 
practicable when developing recovery criteria. \33\ In a 2006 report, 
we provided information on 107 randomly sampled recovery plans covering 
about 200 species. \34\ Specifically, we found that only 5 of the 107 
reviewed recovery plans included recovery criteria that addressed all 
five threat factors. We recommended that in recovery planning guidance, 
the Service include direction that all new and revised recovery plans 
contain either recovery criteria to demonstrate consideration of all 
five threat factors or a statement about why it is not practicable to 
include such criteria. In January 2008, in response to our 
recommendation, the Director of the Service issued a memorandum 
requiring all new and revised recovery plans to include criteria 
addressing each of the five threat factors.
---------------------------------------------------------------------------
    \33\ See Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121 
(D.D.C. 2001); Fund for Animals v. Babbitt, 903 F. Supp. 96 (D.D.C. 
1995). In Defenders of Wildlife, the court remanded the recovery plan 
to the Service to incorporate delisting criteria or to provide an 
adequate explanation of why delisting criteria could not practicably be 
incorporated. In Fund for Animals, the court remanded the plan back to 
the Service for revision of the recovery criteria.
    \34\ GAO, Endangered Species: Time and Costs Required to Recover 
Species Are Largely Unknown, GAO-06-463R (Washington D.C.: Apr. 6, 
2006). The random sample of 107 recovery plans included 99 recovery 
plans (covering 192 species) for which the Service has either primary 
responsibility or shared responsibility with the National Oceanic and 
Atmospheric Administration's Fisheries Service, and 8 recovery plans 
(covering 9 species) for which the National Oceanic and Atmospheric 
Administration's Fisheries Service has primary responsibility.
---------------------------------------------------------------------------
Concluding Observations
    In conclusion, Mr. Chairman, questions remain about the extent to 
which Interior officials other than Ms. MacDonald may have 
inappropriately influenced ESA decisions and whether broader ESA 
policies should be revisited. Under the original direction from 
Interior's Deputy Secretary and the three selection criteria followed 
by the Service, a variety of ESA decisions were excluded from the 
selection process. Broadening the scope of the review might have 
resulted in the selection of more decisions, but it is unclear to what 
extent. The Service recognizes the need for official guidance on how 
90-day petition findings should be developed to eliminate confusion and 
inconsistencies. The guidance will need to reflect the Service's 
implementation of recent court decisions on how far the Service can go 
in collecting additional information to evaluate 90-day petitions and 
reflect what standards should be applied to determine if a petition 
presents ``substantial'' information. The need for clear guidance is 
more urgent than ever with the Service's receipt in the summer of 2007 
of two petitions to list 681 species.
    Assuming successful implementation of the Service's January 2008 
directive that recovery criteria be aligned with the five threat 
factors in the ESA, we believe that future delistings will more likely 
meet recovery criteria while also satisfying the ESA's delisting 
requirements based on the five threat factors.
Agency Comments
    We provided Interior with a draft of this testimony for review and 
comment. However, no comments were provided in time for them to be 
included as part of this testimony. Mr. Chairman, this completes my 
prepared statement. I would be happy to respond to any questions you or 
other members of the Committee may have at this time.
GAO Contacts and Staff Acknowledgments
    For further information, please contact Robin M. Nazzaro at (202) 
512-3841 or [email protected]. Contact points for our Offices of 
Congressional Relations and Public Affairs may be found on the last 
page of this statement. Individuals making key contributions to this 
testimony include Jeffery D. Malcolm, Assistant Director; Eric A. 
Bachhuber; Mark A. Braza; Ellen W. Chu; Alyssa M. Hundrup; Richard P. 
Johnson; Patricia M. McClure; and Laina M. Poon.
                                 ______
                                 
GAO Highlights
                     U.S. FISH AND WILDLIFE SERVICE
                 endangered species act decision making
Why GAO Did This Study
    The Department of the Interior's (Interior) U.S. Fish and Wildlife 
Service (Service) is generally required to use the best available 
scientific information when making key decisions under the Endangered 
Species Act (ESA). Controversy has surrounded whether former Deputy 
Assistant Secretary Julie MacDonald may have inappropriately influenced 
ESA decisions by basing decisions on political factors rather than 
scientific data. Interior directed the Service to review ESA decisions 
to determine which decisions may have been unduly influenced.
    ESA actions include, among others, 90-day petition findings, 12-
month listing or delisting findings, and recovery planning. The Service 
distributed informal guidance in May 2005 on the processing of 90-day 
petitions. Recovery plans generally must include recovery criteria 
that, when met, would result in the species being delisted.
    GAO examined three separate issues: (1) what types of decisions, if 
any, were excluded from the Service's review of decisions that may have 
been inappropriately influenced; (2) to what extent the Service's May 
2005 informal guidance affected 90-day petition findings; and (3) to 
what extent the Service has, before delisting species, met recovery 
criteria. GAO interviewed Service staff, surveyed Service biologists, 
and reviewed delisting rules and recovery plans. Interior did not 
provide comments in time for them to be included in this testimony.
What GAO Found
    Several types of decisions were excluded from the Service's review 
of decisions that may have been inappropriately influenced. Using the 
following selection criteria, the Service identified eight ESA 
decisions for potential revision: (1) whether Ms. MacDonald influenced 
the decision directly, (2) was the scientific basis of the decision 
compromised, and (3) did the decision significantly change and result 
in a potentially negative impact on the species. The Service excluded 
(1) decisions made by Interior officials other than Ms. MacDonald, (2) 
policy decisions that limited the application of science, and (3) 
decisions that were changed but not significantly or to the point of 
negative impact on the species.
    The Service's May 2005 informal guidance had no substantive effect 
on 90-day petition findings. In May 2005, Service headquarters 
distributed a guidance document via e-mail to endangered-species 
biologists that could have been interpreted as instructing them to use 
additional information collected to evaluate a 90-day petition only to 
refute statements made therein. GAO's survey of 90-day petition 
findings issued by the Service from 2005 through 2007 found that 
biologists used additional information collected to evaluate petitions 
to both support and refute claims made in the petitions, as applicable, 
including during the 18-month period when the May 2005 informal 
guidance was being used. However, GAO found that the Service faces 
various other challenges in processing petitions, such as making 
decisions within 90 days and adjusting to recent court decisions. None 
of the 90-day petition findings issued from 2005 through 2007 were 
issued within the desired 90-day time frame. During these years, the 
median processing time was 900 days, or about 2.5 years, with a range 
of 100 days to 5,545 days (over 15 years). Additionally, the Service 
faces several challenges in responding to court decisions issued since 
2004. For example, the Service has not yet developed new official 
guidance on how to process 90-day petitions after the courts 
invalidated a portion of the prior guidance.
    Finally, of the eight species delisted because of recovery from 
2000 through 2007, the Service determined that recovery criteria were 
completely met for five species and partially met for the remaining 
three species because some recovery criteria were outdated or otherwise 
not feasible to achieve. When the delistings were first proposed, 
however, only two of the eight species had completely met all their 
respective recovery criteria. Although the ESA does not explicitly 
require the Service to follow recovery plans when delisting species, 
courts have held that the Service must address the ESA's listing/
delisting threat factors to the maximum extent practicable when 
developing recovery criteria. In 2006, GAO reported that the Service's 
recovery plans generally did not contain criteria specifying when a 
species could be recovered and removed from the endangered species 
list. Earlier this year, in response to GAO's recommendation, the 
Service issued a directive requiring all new and revised recovery plans 
to include criteria addressing each of the ESA's listing/delisting 
threat factors.
                                 ______
                                 
Appendix I: Objectives, Scope, and Methodology
    We are reporting on (1) what types of decisions, if any, were 
excluded from the U.S. Pish and Wildlife Service's (Service) selection 
process of Endangered Species Act (ESA) decisions that were potentially 
inappropriately influenced; (2) the extent to which the Service's May 
2005 informal guidance affected the Service's decisions on petitions to 
list or delist species; and (3) the extent to which the Service 
determined, before delisting, whether species met recovery criteria 
outlined in recovery plans.
    To address our first objective, we interviewed the Director of the 
Service, all eight regional directors, and key regional staff. Also, we 
conducted site visits, phone interviews, or both with ESA staff from 
ten field offices in five regions that were actively engaged in ESA 
decision making. Further, we reviewed documentation developed by 
Service headquarters, regions, and field offices about the selection 
process and the status of the Service's review. In addition, we 
reviewed Service policies and procedures for making ESA decisions and 
reviewed other species-specific information.
    To address our second objective, we identified 67 90-day petition 
findings issued by the Service from 2005 through 2007 and conducted 
structured telephone interviews of current and former Service 
biologists responsible for drafting 90-day petition findings issued in 
that time frame. Of the 67, we excluded 13 petition findings from our 
survey: 5 had been overturned by the courts or were being redone as a 
result of a settlement agreement; 3 involved up-listing already 
protected species from threatened to endangered; 2 involved ongoing 
litigation; 2 involved species located outside the United States; and 1 
involved a petition to revise a critical habitat designation for a 
species that was already protected. In total, we surveyed 44 biologists 
responsible for drafting 54 90-day petition findings. To identify the 
lead author responsible for drafting the 90-day petition findings in 
our survey, we contacted the field office supervisor at the office 
where the petition finding was drafted. The field office supervisor 
directed us to the biologist who was the lead author of the finding or, 
if that person was not available, a supporting or supervising 
biologist. Of the 44 biologists we surveyed, 39 were lead biologists in 
drafting the finding, 3 were supervising biologists, and 2 were 
supporting biologists. From February 1,2008, and February 6,2008, we 
pretested the survey with 5 biologists from three regions between, and 
We used their feedback to refine the survey. The five 90-day petition 
findings we selected for the pretest were all published in 2004 to most 
closely approximate, but not overlap with, our sample. They represented 
a balance between listing and delisting petitions, substantial and not 
substantial findings, and types of information used in evaluating the 
petition as stated in the Federal Register notice. We conducted the 
pretests through structured telephone interviews to ensure that (1) the 
questions were clear and unambiguous, (2) terms were precise, and (3) 
the questions were not sensitive and that the questions as phrased 
could be candidly answered. A GAO survey specialist also independently 
reviewed the questionnaire.
    Our structured interview questions were designed to obtain 
information about the process the Service uses in making 90-day 
petition findings under the ESA and the types of information used to 
draft each 90-day petition finding. Specifically, the structured 
questions focused on information that was not cited or referred to in a 
listing or delisting petition but was either internal to Service files 
or obtained from sources outside the Service. 1 In each of 
these categories, we asked whether the information was used to support, 
refute, or raise new issues not cited in the petition.
---------------------------------------------------------------------------
    \1\ We defined information in Service files as information not 
included or cited in the petition but used regularly over the course of 
the lead biologists' work. We defined information external to Service 
files as information not included or cited in the petition but 
solicited from other entities or obtained through exhaustive literature 
searches during the process of reviewing the petition.
---------------------------------------------------------------------------
    Table 6 summarizes the key questions we are reporting on that we 
asked during the structured interviews. We also asked other questions 
in the survey that we do not specifically report on; these questions do 
not appear in the table below.
[GRAPHIC] [TIFF OMITTED] T2492.045

    Our survey results demonstrated in several ways that the May 2005 
guidance did not have a substantive effect on the outcomes of 90-day 
petition findings. First, Service biologists who chose not to use 
information outside of petitions to support claims made in the 
petitions said that Service policy had no influence on this choice. 
Second, when asked what guidance they followed in drafting their 90-day 
petition finding, very few respondents cited the May 2005 guidance, 
indicating that although this guidance may have been followed to create 
an internal agency outline, it did not have a substantive effect on the 
finding itself. Third, in response to our concluding, open-ended 
question, none of the biologists mentioned specific reservations about 
the May 2005 guidance.
    To address our third objective, we generated a list of all of the 
Service's final delisting decisions published as rules in the Federal 
Register (and corresponding proposed delisting rules) from calendar 
years 2000 through 2007, to determine the number of species removed 
from the list of threatened and endangered species by the Service. As 
of December 31, 2007, the Service had issued final rules resulting in 
the delisting of 17 species. Of those 17 delisted species, 2 species 
were delisted because they had been declared extinct, 6 species were 
delisted because the original data used to list the species were in 
error, and 9 species were delisted as a result of recovery. Of the 9 
recovered species, we excluded the Tinian monarch, a species located in 
a U.S. territory, which reduced the number of species we looked at to 8 
U.S. species delisted because of recovery. To examine whether the 
Service met recovery criteria outlined in recovery plans before 
delisting species, we obtained and reviewed the Service's recovery 
plans for each of those 8 delisted species and also examined the 
Federal Register proposed and final delisting rules. This information 
indicated whether the Service believed that it had met the criteria 
laid out in the recovery plans for the 8 delisted U.S. species. 
Finally, we also reviewed the proposed rule to delist the West Virginia 
northern flying squirrel; as of March 31, 2008, the Service had not 
finalized this proposed rule.
    We conducted this performance audit from August 2007 to May 2008 in 
accordance with generally accepted government auditing standards. Those 
standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe that 
the evidence obtained provides a reasonable basis for our findings and 
conclusions based on our audit objectives.

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                                 ______
                                 
    The Chairman. Mr. Laverty?

STATEMENT OF R. LYLE LAVERTY, ASSISTANT SECRETARY FOR FISH AND 
     WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR, 
ACCOMPANIED BY REN LOHOEFENER, FISH AND WILDLIFE SERVICE, U.S. 
    DEPARTMENT OF INTERIOR, AND ED SHEPARD, BUREAU OF LAND 
            MANAGEMENT, U.S. DEPARTMENT OF INTERIOR

    Mr. Laverty. Good morning, Mr. Chairman and Members of the 
Committee. I am Lyle Laverty. I am the Assistant Secretary for 
Fish, Wildlife and Parks for the Department of the Interior.
    I want to thank you for this opportunity to share with you 
the Department's recent actions relating to our implementation 
of the Endangered Species Act. This is my first appearance 
before you and your Committee since my confirmation as 
Assistant Secretary, and it truly is an honor to be here in 
front of you today.
    Let me begin by mentioning our most recent listing 
activity. As you know, Mr. Chairman, Secretary Kempthorne 
announced last week that he accepted my recommendation of the 
U.S. Fish and Wildlife Service Director Dale Hall's decision to 
list the polar bear as a threatened species under the 
Endangered Species Act.
    This listing decision is based on the best available 
science, which shows that the loss of sea ice threatens and 
will continue to threaten the polar bear habitat. This loss of 
habitat puts polar bears at risk of becoming endangered in the 
foreseeable future, which is the standard established by the 
Endangered Species Act for designating threatened species.
    In making the decision, the Secretary also announced that 
he was using the authority provided in Section 4[d] of the 
Endangered Species Act to develop a rule that states if an 
activity is permissible under the stricter standards 
conservation regulatory requirements and standards imposed by 
the Marine Mammal Protection Act, it is also permissible under 
the Endangered Species Act with respect to the polar bear.
    This rule, which we have issued as an interim final rule 
which is effective immediately, will ensure the protection of 
the bear while allowing for continued development of our 
natural resources in the Arctic region in an environmentally 
sound fashion.
    While my nomination was pending with the U.S. Senate, this 
Committee held several hearings. Because of the unique position 
that I held at that time I was still an outsider, but by virtue 
of the nature of the position to which I had been nominated I 
was extremely interested in the issues that you were 
discussing.
    At that time I was fortunate to have both the time and the 
opportunity to reflect on what I was hearing and reading and 
what actions would in my mind address the problems and add real 
value to the process. I determined it was important for me to 
immediately set a firm tone on the issues of ethical behavior 
and how policy and science should interact in the Department.
    One of my commitments to both committees, and one of the 
first actions I took after the nomination, was to meet with my 
staff and the Department's ethics officer for a comprehensive 
briefing on the Department's ethics standards. I also committed 
to and have explained to my staff that any contacts they have 
with field personnel either at the Fish and Wildlife Service or 
the National Park Service regarding questions of science must 
and will be through established organizational channels and 
only with my prior approval.
    I strive to ensure that everyone in my office treats 
everyone else and is, in turn, treated with dignity and 
respect. If there are questions of science, and there should 
be, I expect those discussions to flow through the Director for 
clarification.
    As a natural resource professional, I understand the role 
of science. I am committed to ensure the integrity of science 
as the foundation for our resource decisions. I have met with 
the Fish and Wildlife Service Director Dale Hall and Director 
Mary Bomar and have affirmed my commitment to professional 
behavior and personal code of conduct when it comes to the 
interaction. I affirmed this again in my letters to Senator 
Boxer and Senator Bingaman.
    I believe in performance accountability, including my own. 
I meet on a weekly basis with Director Hall to talk about 
communication, staff interactions and performance, on my 
feedback, on my performance, and the question am I doing what I 
said I would do? I value those conversations.
    I have read the GAO report regarding the Fish and Wildlife 
Service endangered species decision making. I have discussed 
the report with Fish and Wildlife staff and understand the 
Service is currently implementing the recovery plan 
recommendations. The 90-day petition finding guidance is under 
review and incorporates and addresses the court decisions, as 
well as recommendations to the GAO.
    Director Hall has established a series of code of conducts 
as it relates to professional organizations. He has shared that 
with you.
    I will move on, just very quickly, to give an update on the 
discussion on decision review. The Service is moving ahead with 
the review of the decisions that were overseen by the former 
Deputy Assistant Secretary. The process for reviewing decisions 
is established by the Service, and engaged resource 
professionals in those assessments.
    Let me highlight just a few points that Deputy Director Ken 
Stansell shared with the Committee. It talked about the 
conclusion and the revision to seven of the eight decisions 
that should be made. There are actions underway to deal with 
many of those issues. I can go into more detail in a minute 
with you if you would like to do that.
    In conclusion, I believe that the Department and the 
Service have made great strides over this past year, ensuring 
that our decision-making processes are clearly delineated, that 
we maintain a strong emphasis on ethical conduct, and that we 
are continuing our commitment to maintaining the integrity of 
science used in the decision-making process.
    I want to thank you for this opportunity to join you, and I 
look forward to having a chance to answer any questions you 
might have for me. Thank you.
    [The prepared statement of Mr. Laverty follows:]

Statement of R. Lyle Laverty, Assistant Secretary for Fish and Wildlife 

               and Parks, U.S. Department of the Interior

    Mr. Chairman and Members of the Committee, I am Lyle Laverty, 
Assistant Secretary for Fish and Wildlife and Parks at the Department 
of the Interior. I thank you for the opportunity to share with you the 
Department's recent actions relating to our implementation of the 
Endangered Species Act. This is my first appearance before you and your 
Committee since my confirmation as Assistant Secretary, and it is my 
great pleasure to be here today.
    I am accompanied today by Mr. Ren Lohoefener, Regional Director for 
the U.S. Fish and Wildlife Service's Pacific Region, and Mr. Ed 
Shepard, the Bureau of Land Management's Oregon State Director. These 
gentlemen have made themselves available, at your request, to respond 
to any questions that you or other Members of the Committee may have 
about the spotted owl recovery plan and the Western Oregon Plan 
Revisions.
    Let me begin by mentioning our most recent listing activity. As you 
know, Mr. Chairman, Secretary Kempthorne announced last week that he 
accepted my recommendation of Fish and Wildlife Service Director Dale 
Hall's decision to list the polar bear as a threatened species under 
the Endangered Species Act. The listing is based on the best available 
science, which shows that loss of sea ice threatens, and will likely 
continue to threaten, polar bear habitat. This loss of habitat puts 
polar bears at risk of becoming endangered in the foreseeable future, 
the standard established by the ESA for designating a threatened 
species.
    In making the decision, the Secretary also announced that he was 
using the authority provided in Section 4(d) of the ESA to develop a 
rule that states that if an activity is permissible under the stricter 
standards imposed by the Marine Mammal Protection Act, it is also 
permissible under the Endangered Species Act with respect to the polar 
bear. This rule, which we have issued as an interim final rule and 
which is effective immediately, will ensure the protection of the bear 
while allowing for continued development of our natural resources in 
the arctic region in an environmentally sound way.
Past Hearings on ESA Implementation and Science
    During the time my nomination was pending before the Senate last 
year, this Committee held several hearings at which general 
implementation of the ESA was discussed, and the Department's process 
for reviewing ESA-related decisions and the use of science and policy 
in that process were discussed in detail. At that time, both Deputy 
Secretary Lynn Scarlett and Fish and Wildlife Service Director Dale 
Hall affirmed that science is the cornerstone of the Service's work, 
including our decision-making under the ESA, and reiterated the 
Department's absolute commitment to the scientific integrity of that 
process. We have taken many actions, both before and since, that I will 
briefly discuss this morning.
    I should begin by acknowledging that Secretary Kempthorne has, 
since the time of his confirmation, placed a strong emphasis on ethical 
conduct and scientific integrity as we carry out our work for the 
American public. I know that throughout his career in public service, 
the Secretary has exhibited, and continues to exhibit, a commitment to 
the quality and integrity of science in the decision-making process. 
He, along with Deputy Secretary Scarlett, has been effective in setting 
a high standard in this regard.
    As Director Hall noted before the Committee last July, both science 
and policy have roles in the implementation of the ESA. Under the ESA, 
the Service must use the best available science, be explicit about the 
level of uncertainty in that science, and leave it to decision makers 
to choose among available options that achieve the objectives of the 
Act when making a decision. He also acknowledged that policy decisions 
in critical habitat designations are appropriate in the section 4(b)(2) 
exclusion process of the ESA, pursuant to which the Secretary must 
weigh the benefits of exclusion against the benefits of inclusion, and 
that
        ...the assimilation, application, and interpretation of science 
        often represent the beginning point in making policy decisions 
        under the ESA. The peer review process, agency leadership, and 
        the public comment process help to ensure high quality 
        decisions.
Recent Management Activities
    As I mentioned above, the Committee's hearings were held last year 
while my nomination was pending in the United States Senate. Because of 
my unique position at the time, still an outsider but, by virtue of the 
position to which I had been nominated, extremely interested in the 
issues, I was fortunate to have both the time and opportunity to 
reflect on what I was hearing and reading and what actions would, in my 
mind, address the problems and add real value to the process.
    I determined that it was important for me to immediately set a firm 
tone on the issues of ethical behavior and how policy and science 
should interact in the Department. One of my commitments, and one of 
the first actions I took after confirmation, was to meet with my staff 
and the Department's Ethics Officer for a comprehensive briefing on the 
Department's ethics standards. I also committed to explaining, and have 
explained, to my staff that any contacts they have with field personnel 
at either the Fish and Wildlife Service or the National Park Service 
regarding questions of science must and will be through established 
organizational channels, and only with my prior approval. I documented 
my commitment with a letter to all National Park Service and Fish and 
Wildlife Service employees on my first day as Assistant Secretary. I 
strive to ensure that everyone in my office treats everyone else and 
is, in turn, treated with dignity and respect.
    I have met with Fish and Wildlife Service Director Dale Hall and 
National Park Service Director Mary Bomar and affirmed this commitment 
to professional behavior and the personal code of conduct when it comes 
to the interaction between career and political staff.
    In a similar vein, in July of last year, Service Director Hall 
appeared before you and presented his views on ESA implementation and 
the various actions he had taken as Director to ensure that the Service 
implements the ESA with the utmost scientific integrity. Several of 
these important recent steps discussed at that hearing include:
    1.  the issuance, in February 2006, of a memorandum detailing the 
Director's views on how science should be used in making 
recommendations and decisions, as well as the process by which science 
would be reviewed in a policy and legal context; and
    2.  clarification of the division of responsibilities for ESA 
reviews and decisions between the Service and the Assistant Secretary's 
Office, including that the formulation of science would be the 
responsibility of the Service, while discussions between the Director's 
office and Assistant Secretary's office would focus on policy decision-
making.
    The Service also announced this past January that it is 
implementing a code of scientific conduct, a series of guidelines 
applicable not only to scientists, but to managers and executives 
within the Service, including the Director. Moreover, while it applies 
to scientific conduct, it extends to include the translation and 
application of science used to inform resource management decisions. 
The code is modeled on other codes developed and implemented by 
professional organizations, such as The Wildlife Society and The 
American Fisheries Society, and these organizations have praised this 
effort as an important ingredient of organizational integrity. The code 
is intended to provide uniform policies for Service employees to follow 
as they conduct and manage scientific activities, with the utmost 
regard for maintaining and enhancing the Service's reputation for 
professionalism, integrity and objectivity.
    All of these taken together serve as potent examples of the 
seriousness with which Secretary Kempthorne, Deputy Secretary Scarlett, 
and I, along with Director Hall and others in the Department, are 
treating the issue of scientific integrity and the commitment we have 
made to ensuring that our science-based decisions are made according to 
the highest possible standards.
Update on Decision Reviews
    Finally, let me provide you with a brief update on the Service's 
progress on revision of the seven ESA decisions. The process for 
reviewing decisions established by the Service was one of the subjects 
discussed in detail by the Committee and Director Hall at the July 2007 
hearing. For that reason, I will not go into detail on that process, 
but will instead highlight the letter sent to you, Mr. Chairman, by the 
Service's Deputy Director Kenneth Stansell in November 2007. That 
letter forwarded the Service's conclusion that revisions to seven of 
the eight decisions should be made and provided a small amount of 
detail about each decision.
    Currently, Mr. Chairman, work is on-going for four of the seven 
decisions. In November 2007, the Service published a proposed rule to 
revise the listing of the Preble's meadow jumping mouse, and the 
Service expects to make a final listing determination by June 2008. 
Work on the revision of the critical habitat designation for the 
Preble's meadow jumping mouse will begin in June 2008, with a final 
decision expected in June 2010. A proposed rule to revise designation 
of critical habitat for the 12 Hawaiian picture-wing flies was also 
published in November 2007 and a final critical habitat determination 
is expected in November 2008. A proposed rule to revise critical 
habitat for the Canada lynx was published in February 2008, and a final 
critical habitat determination is expected in February 2009.
    Work on the critical habitat for the arroyo toad and the finding 
for the white-tailed prairie dog will begin in Fiscal Year 2009.
    FWS has allocated approximately $1 million from Fiscal Year 2008 
and identified $1.12 million from the Fiscal Year 2009 budget request 
for the Endangered Species Program for work related to revising six of 
the seven decisions under the ESA. Revision of the seventh decision, 
involving the listed entity for the Preble's meadow jumping mouse, is 
not included in the list above because the revision will be completed 
in Fiscal Year 2008 and funding has come from the base allocation for 
the recovery program from Fiscal Years 2007 and 2008 due to our 
delisting proposal.
Conclusion
    I believe the Department and the Service have made great strides 
over the past year in ensuring that our ESA decision-making processes 
are clearly delineated and that we maintain a strong emphasis on 
ethical conduct and continue our commitment to maintaining the 
integrity of the science used in the decision-making process. Again, 
thank you and I am happy to answer any questions that you may have.
                                 ______
                                 

  Response to questions submitted for the record by R. Lyle Laverty, 
Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of 
                              the Interior

Questions from Chairman Nick J. Rahall, II
Guidance for Listing Decisions
    Question: GAO found (page 17) that 70 percent of the biologists 
surveyed and who are responsible for determining whether a listing 
petition is warranted have never drafted a petition finding. Biologists 
responding to GAO's survey said frequently changing guidance resulted 
in longer processing times, and delayed listing decisions. What are 
your plans to issue official guidance to eliminate confusion and 
inconsistencies in the determination of 90-day petition findings?
    Response: A draft Director's memorandum providing interim guidance 
on 90-day petition findings under the Endangered Species Act (ESA) is 
currently under review within the U.S. Fish and Wildlife Service 
(Service). We anticipate that a final Director's memorandum on this 
guidance will be provided to the Regional and field offices by late 
summer 2008.
Spotted Owl Recovery Plan
    Question: When the spotted owl recovery plan was announced last 
week, Members of Congressional staff were told that if peer review 
supported changes, FWS would gladly re-do the recovery plan. Do you 
plan to solicit peer review on the May 16 recovery plan? If peer 
reviewers recommend changes, will you revise the plan?
    Response: The Service is always amenable to expert review of its 
recovery practices and will look to the recovery plan implementers for 
advice on when adaptive management may be needed.
Recovery Plan for Jaguar
    Question: In Jan 2008, Director Hall determined that a recovery 
plan was not necessary because the bulk of the jaguar population 
resides outside the United States. Yet, recovery plans were prepared 
for a number of species with a significant portion of their range 
outside the United States. As examples, recovery plans were prepared 
for the Sonoran pronghorn, Yuma Clapper rail and New Mexico Ridge-nosed 
Rattlesnake. The jaguar occurs from southern Arizona and New Mexico to 
South America. Why was a recovery plan not prepared for the jaguar?
    Response: The examples cited above are all species for which a 
significant portion of the range and breeding populations of the 
species do occur in the United States. Neither is true for the jaguar. 
The ESA requires that recovery plans include objective and measurable 
delisting criteria and an implementation schedule with estimated costs 
and responsible parties which, when fully met and implemented, would 
lead to a determination that the species be removed from the List. The 
jaguar's range extends through the jurisdictions of approximately 20 
countries from the United States border through Mexico, Central and 
South America. The northern extreme of its range occurs in the southern 
United States; this area represents less than one percent of the 
jaguar's entire range.
    Generally, the United States has little authority to implement 
actions needed to recover species outside its borders. These powers are 
limited to prohibiting unauthorized importation of listed species into 
the United States, and prohibiting persons subject to United States 
jurisdiction from engaging in commercial transportation or sale of 
listed species in foreign commerce. The ``take'' prohibitions of 
section 9 only apply within the United States, within the territorial 
seas of the United States and on the high seas. They do not apply in 
the foreign countries where nearly all jaguars are actually found. 
Consequently, the management and recovery of listed foreign species 
remain the responsibility of the countries in which the species occur, 
with the help of available technical and monetary assistance from the 
United States. In short, the Service believes that preparation of a 
recovery plan for this largely international species will not promote 
its conservation.
    Question: Shouldn't this type of decision to exempt a species from 
the requirement to prepare a recovery plan be one for which the Service 
solicits public review and comment?
    Response: Section 4(f)(1) of the ESA provides that the Secretary 
shall develop a recovery plan ``unless he finds such a plan will not 
promote the conservation of the species,'' and there is no statutory 
requirement that the Secretary's finding be subject to public review 
and comment.
    Question: What is the statutory basis that the FWS relied upon in 
denying full ESA protections to a species with a significant foreign 
population?
    Response: The Service has not denied full ESA protection to the 
jaguar by its decision that preparation of a recovery plan would not 
benefit the species. The jaguar is still fully protected by all 
provisions of the ESA within U.S. borders.
    Although we find that formal recovery planning at this time will 
not promote the conservation of the jaguar, we intend to continue our 
efforts to protect jaguars within our borders, and to work 
cooperatively with our partners in northern Mexico in their efforts to 
conduct research, protect habitat, and reduce killing of jaguars in 
northern Mexico. Toward that end, we participate in the Jaguar 
Conservation Team (JAGCT), a federal, state and private partnership 
formed in 1997 to conserve the jaguar in the southwest United States 
and northern Mexico.
Spotted Owl Recovery Plan
    Question: Why is the FWS preparing a recovery plan for the northern 
spotted owl? Haven't the courts said that the Northwest Forest Plan is 
sufficient to protect the owl and a recovery plan is not necessary? Why 
are you using resources on this effort anyway?
    Response: According to the Endangered Species Act, the U.S. Fish 
and Wildlife Service is required to prepare recovery plans for listed 
species unless the Service determines that such a plan will not promote 
the conservation of the listed species. Recovery plans must include a 
description of site specific management actions and recovery criteria. 
The Northwest Forest Plan, while describing important management 
practices for the northern spotted owl, does not include the recovery 
criteria or actions for the owl, as required in the ESA.
    Question: Dr. Franklin also recommends that the Fish and Wildlife 
Service use the late successional reserves as the core of the spotted 
owl conservation area strategy, and supplement them with additional 
designated conservation areas as necessary. He says the 133 owl 
conservation areas identified in the plan are inadequate. Will you 
consider his recommendation and revise the plan accordingly?
    Response: According to the most recent northern spotted owl 
population modeling, the conservation area design as described in the 
Northern Spotted Owl Recovery Plan should, over the long term, be 
sufficient to address the loss of habitat. In fact, the Managed Owl 
Conservation Areas (MOCAs) on the west side of the Cascade Mountains, 
added to the federal lands managed for northern spotted owls on the 
east side of the Cascades, coupled with the additional Federal older 
forests maintained over the next 10 years while we explore the threat 
from barred owls, will equal or exceed the total amount of Late 
Successional Reserves.
Delistings
    Question: We understand that funds for delisting and recovery come 
out of the same account and that the Service's priority is to use these 
funds to delist species instead of focusing on recovery activities. Is 
our understanding correct?
    Response: The Service funds recovery activities using one sub-
activity account. Recovery activities include developing recovery 
plans, implementing recovery actions, conducting 5-year status reviews, 
and addressing delisting and downlisting petition findings. In 
addition, we may use this funding to process species rules, such as 
experimental population designations under section 10(j). When recovery 
has been achieved for a species, we use this funding for regulatory 
actions to delist the species and develop post-delisting monitoring 
plans.
    We do not prioritize our funding allocation for regulatory actions, 
specifically delisting species. The bulk of our funding is allocated 
out by a formula that considers the number of listed species and the 
complexity of recovery implementation activities for those species. In 
addition, approximately 5% of the total general funds, or roughly $3.5 
million, is allocated to specific Service projects or actions through a 
competitive proposal process. In FY08, we targeted, through this 
proposal process, $2.5 million towards on-the-ground recovery actions 
that either prevented extinction or funded recovery action that would 
move the species towards recovery faster. Approximately $990,000 of the 
$3.5 million allocated through the national competition was used to 
fund the regulatory action for complicated or complex delisting or 
downlisting actions. A portion of the $990,000 was also used to develop 
post-delisting monitoring plans for the bald eagle and brown pelican.
Wolverine
    Question: The Service's decision in March not to list the wolverine 
in the lower 48 seems to be based on the reasoning that it is too 
imperiled to be significant enough to warrant protection. Isn't that 
conclusion completely at odds with the plain meaning and intent of the 
ESA? Using this same reasoning how would wolves and grizzly bears 
recover in the lower 48 under the ESA?
    Response: The Service based our determination that the wolverine in 
the lower 48 contiguous United States was not warranted for listing on 
the following reasoning (see 73 FR 12929)
    *  The contiguous U.S. population of the wolverine did not meet the 
discreteness criteria for a Distinct Population Segment under the 
Service's 1996 policy. The international border could not be used to 
delineate a U.S. DPS, because differences between the two countries 
regarding control of exploitation, management of habitat, conservation 
status, or regulatory mechanisms are not significant in light of 
section 4(a)(1)(D) of the ESA.
    *  The contiguous U.S. population of the wolverine did not meet the 
significance criteria for a Distinct Population Segment under the 
Service's 1996 policy. The focus of the 12-month petition finding was 
on the contribution of the contiguous U.S. population of the wolverine 
to the North American subspecies as a whole. Only a small portion of 
the North American wolverine subspecies has ever occurred in the 
contiguous United States. The finding documented that the U.S. 
population was not significant to the continued existence of the North 
American subspecies in Canada and Alaska where it is faring reasonably 
well.
    Unlike the wolverine, the wolf and the grizzly bear both meet 
discreteness criteria defined in the DPS Policy as ``delimited by 
international governmental boundaries within which differences in 
control of exploitation, management of habitat, conservation status, or 
regulatory mechanisms exist that are significant in light of section 
4(a)(1)(D) of the Act.'' Trapping and hunting regulations within the 
contiguous United States were not sufficient to maintain persistence of 
wolves and grizzly bears, which were reduced to low numbers at the time 
they were listed under the ESA. In Canada and Alaska, wolves and 
grizzly bears were also being trapped and hunted, but these activities 
were not threatening the healthy populations that exist there.
    Trapping and hunting of wolverines is legal only in Montana within 
the contiguous United States, and this program is closely monitored. 
Trapping and hunting do not pose a threat to the species; thus, 
differences in control of exploitation that are significant in light of 
section 4(a)(1)(D) did not exist to support the determination that the 
wolverine in the contiguous United States qualifies as a DPS.
Gray Wolves
    Question: How many wolves will have to be killed to trigger a 
decision to relist the species?
    Response: The Service identified four scenarios in the Northern 
Rocky Mountain distinct population segment (NRM DPS) that could prompt 
us to initiate a status review and analysis of threats to determine if 
relisting would be warranted. These scenarios are: (1) if the wolf 
population for any one state in the DPS (MT, ID, WY) range falls below 
the minimum NRM wolf population recovery level of 10 breeding pairs of 
wolves and 100 wolves; (2) if the wolf population segment in Montana, 
Idaho, or Wyoming falls below 15 breeding pairs or 150 wolves in any 
one of those states for 3 consecutive years; (3) if the wolf population 
in Wyoming outside of National Park Service lands falls below 7 
breeding pairs for 3 consecutive years; or, (4) if a change in state 
law or management objectives would significantly increase the threat to 
the wolf population.
    Furthermore, if any of these scenarios occurred during the 
mandatory 5-year post-delisting monitoring period, the post-delisting 
monitoring period would be extended 5 additional years from that point 
in that State.
    The post-delisting monitoring plan for the Western Great Lakes 
distinct population segment (WGL DPS) outlines three scenarios that may 
cause the Service to consider relisting or emergency relisting the WGL 
DPS. These scenarios are: (1) a decline that reduces the combined 
Wisconsin-Michigan (excluding Isle Royale and the Lower Peninsula) late 
winter wolf population estimate to 200 or fewer wolves; (2) a decline 
that brings either the Wisconsin or the Michigan (excluding Isle Royale 
and the Lower Peninsula) wolf estimate to 100 or fewer wolves; or, (3) 
a decline that brings the Minnesota winter wolf population point 
estimate or lower end of the 90% confidence interval to 1,500 or fewer 
wolves.
    Although the thresholds for initiating analyses for relisting are 
based on population numbers, any determination to relist the gray wolf 
would not be based solely on the number of wolves killed or even the 
overall population level alone. The Endangered Species Act requires 
that listing be based on the analyses of current and future threats to 
the entity under consideration using the best scientific and commercial 
data available. Our delisting analyses found that all threats to the 
NRM DPS and the WGL DPS of the gray wolf have been removed. In the 
past, the primary threat to wolves was deliberate and organized 
persecution. Wolf populations are otherwise very resilient to human-
caused and other forms of mortality. On average, humans would have to 
kill more than 30-50% of a wolf population each year to cause 
population declines. Without the use of poisons (which are now banned) 
and/or a government-sponsored eradication program, the Service believes 
that, as a practical matter, it would be very difficult to kill enough 
wolves for a long enough period of time to threaten the wolf population 
and require relisting under the Endangered Species Act.
    Before we could delist the WGL DPS and NRM DPS, each State with a 
portion of a recovered wolf population had to commit in FWS-approved 
wolf management plans to maintain their segment of the wolf population 
so that the overall populations will remain well above recovery goal 
levels. The States also committed to continue to monitor their wolf 
population for the mandatory 5-year post-delisting monitoring period 
and report results to the FWS.
    In the NRM DPS, the three core States of Idaho, Montana, and 
Wyoming committed in their wolf management plans to manage for at least 
15 breeding pairs and 150 wolves each, which is 50% higher than the 
minimum recovery goal level. The combined number of wolves that the 
States indicated they will actually manage for is around 1,000, which 
is more than triple the minimum recovery goal level. Currently, the NRM 
DPS population is at about 1,500 adults and yearlings plus 
approximately 500 pups born this spring.
    In the WGL DPS, the three core States of Minnesota, Wisconsin, and 
Michigan describe in their management plans the minimum number of 
wolves each State will maintain. Minnesota's minimum statewide winter 
population goal is 1,600 wolves. Wisconsin's minimum population goal is 
350 wolves outside of Indian Reservations. Michigan's plan calls for a 
minimum sustainable population of 200 wolves in the Upper Peninsula. 
The numeric recovery goals were 1,251-1,400 for Minnesota and 100 for 
the Wisconsin-Michigan population. Currently, the Minnesota population 
is estimated at more than 3,000 wolves. Wisconsin's current estimate is 
520-545 wolves outside Indian Reservations, and Michigan's estimate is 
434 wolves.
    Wolves in the contiguous United States outside the NRM DPS and WGL 
DPS remain listed under the Endangered Species Act. The estimated 50-
60,000 wolves in Canada and 8-10,000 in Alaska are not listed.
Mexican Wolf
    Question: Why has the Fish and Wildlife Service not revised the 
recovery plan for the Mexican wolf?
    Response: The Mexican gray wolf was listed as an endangered 
subspecies on April 28, 1976 (41 FR 17736). On March 9, 1978, the 
Service issued a final rule that eliminated individual subspecies on 
the list and reclassified the entire species C. lupus as either 
endangered or threatened in North America south of Canada (43 FR 9607). 
However, the final rule stated that we would continue to recognize 
valid biological subspecies for purposes of research and conservation 
(43 FR 9610). The first (and only) Mexican Wolf Recovery Plan was 
international in scope and was approved on September 15, 1982, by the 
Director of the Service and the Director General of Mexico's Direccion 
General de la Fauna Silvestre.
    In April 2003, the Service reclassified the gray wolf, creating 
three distinct population segments (DPS): the eastern, western, and 
southwestern DPS (SWDPS) (68 FR 15804). Creation of the SWDPS provided 
an opportunity to engage a full recovery planning effort and develop 
delisting criteria for the gray wolf in the southwest, which included 
the non-essential experimental population of Mexican wolves. The 
Service convened the SWDPS Gray Wolf Recovery Team in October 2003. The 
Recovery Team was nearing the end of the internal planning process in 
February 2005 when an Oregon Federal Court ruled on litigation brought 
by a coalition of environmental groups and enjoined and vacated the 
2003 Reclassification Rule (Defenders of Wildlife v. Norton, 03-1348-
JO; National Wildlife Federation v. Norton, 1:03-CV-340, D. VT. 2005).
    In response to these rulings, Region 2 put the SWDPS recovery team 
on hold. The recovery team could not continue its work until legal 
issues were resolved and thus we have not been able to complete a 
formal revised recovery plan for the Mexican wolf.
    As an interim measure, the Service is developing a conservation 
assessment for the Mexican gray wolf. This assessment will draw upon 
much of the information generated by the Recovery Team during their 
initial preparation of the draft Mexican wolf recovery plan. The 
conservation assessment will provide background information about the 
species, describe current threats, and contain recommendations to 
advance recovery through the wolf program. It will not contain 
decisions about how many wolves are necessary to achieve recovery, nor 
will it recommend specific geographic areas for expansion of Mexican 
wolf recovery efforts. However, much of the information from the 
conservation assessment could be utilized in a future recovery plan and 
in preparing modifications to the rule.
    In addition to the conservation assessment, the Service is 
simultaneously updating the Mexican Wolf Environmental Impact 
Statement. This process will provide broad public participation 
opportunities and will allow us to use knowledge gained over the last 
ten years to shape alternatives that address successful recovery 
activities.
    Question: In his testimony, Mr. Parsons on panel 2 states that we 
are witnessing the extinction of the Mexican wolf. How will the DOI put 
the wolf back on a track towards recovery?
    Response: The Mexican wolf was extirpated from the United State by 
the mid-twentieth century. Decades later, we better understand and 
support the role that top predators play in balancing ecosystems. The 
Service and its partners have established a group of primarily wild 
born wolves that are breeding and reproducing in the Southwest and has 
demonstrated substantial progress towards recovery. We continue to use 
all available management options for increasing the number of wolves in 
the 10(j) area. The population in New Mexico and Arizona has remained 
near 50 wolves from 2003 to 2007.
    Prior to the Service's 1998 initial release of wolves into the 
10(j) area, the known wild population was zero. As a result of the 
Service's wolf program, the existence of a stable experimental 
population of wolves in the wild over the last several years makes it 
clear that we are not witnessing the extinction of the Mexican wolves 
as suggested by Mr. Parsons' testimony. The captive breeding program is 
managed under a Species Survival Plan. There are currently close to 300 
wolves in the captive population, and all of the wolves released into 
the wild came from this captive population.
    Question: How do you square the additional killing or permanent 
removal of wolves allowed under Standard Operating Procedures 13 with 
the ESA requirement that killing and permanent removal must not 
preclude progress toward recovery?
    Response: The Environmental Impact Statement (EIS) established for 
the reintroduction of Mexican wolves into the Southwestern United 
States stated: ``The FWS will permanently remove from the wild or, as a 
last resort, euthanize any wolves exhibiting a consistent pattern of 
livestock depredation (three or more confirmed kills--(page 2-16).''
    The Service and its partners have set policy that is consistent 
with the foundation documents of this project. Re-introduction of 
wolves as an experimental 10(j) population with Standard Operating 
Procedures (SOP) provisions are not in violation of the ESA and support 
the goal of successful re-introduction by managing human/wolf 
conflicts.
    The primary reason for the extirpation of wolves from the Southwest 
was lack of tolerance (both by the public and government agencies) of 
wolves because of human/wolf conflicts. Active management of individual 
wolves that kill cattle has been the management paradigm in the 
Midwest, the Northern Rockies and the Southwest and clearly increases 
tolerance for wolves by the local public. The Service believes that 
other aspects within this project are more limiting relative to overall 
recovery, including: (1) a single population of wolves rather than 
multiple populations; (2) the recovery area's geographic limitations; 
and, (3) the difficulties of establishing a wild population from 
captive stock.
    Our records show about half of all wolf removals (both permanent 
and temporary) are due to livestock interactions. From 1998 through 
2007, the Service's records show 34 wolves have been permanently 
removed from the wild (11 lethally) and 108 were removed on a temporary 
basis. The remainder of removals are based on other factors including 
boundary violations, nuisance behavior and illegal shootings. 
Temporarily removed wolves are eligible to be re-released into the 
wild. This summer, New Mexico Department Game and Fish (NMDGF) will 
transfer two adult Mexican wolves into the wild.
Moratorium on Take of Mexican Wolves
    Question: Mexican wolf experts have called for a moratorium on 
``take'' until an expert task force can be convened to provide 
guidance? Do you agree with the experts?
    Response: The Mexican Wolf Reintroduction Project is a cooperative 
effort among the Service, Arizona Game and Fish Department (AZGFD), 
NMDGF, U.S. Department of Agriculture--Wildlife Services, USDA Forest 
Service, and the White Mountain Apache Tribe. In addition, many state 
and federal agencies, counties, Native American Tribes, zoos, wildlife 
sanctuaries, universities, and non-government organizations in both the 
United States and Mexico have assisted in planning and implementing 
recovery efforts for the Mexican wolf. We are fortunate to be able to 
draw on the expertise of so many dedicated biologists with practical 
experience and expertise in managing endangered species on the ground 
in Arizona and New Mexico.
    While the Service has removed one wolf and translocated wolves 
within the 10(j) area in 2008, there have been no legal lethal takes 
this year. We are also leading efforts to review and revise the 
program's Standard Operating Procedures to provide us with a broader 
scope of management options to help avoid future lethal removals.
    Biologically, the reintroduction project is successful. We have 
second generation wolves finding mates in the wild, establishing their 
own packs, and taking down native prey. Forty-seven of the 52 wolves 
(90%) documented in 2007 were wild born animals. However, the socio-
economic effects of reintroducing a top predator into cattle country 
are a reality that must be factored into the equation. Wolf/livestock 
conflict is one of the most challenging obstacles facing the Mexican 
wolf reintroduction program. Resolution of this impediment will help 
accommodate the recovery of the Mexican wolf.
    When livestock conflicts occur, our preference is to work with the 
livestock owner to help disrupt depredation behavior by hazing or other 
non-lethal methods of discouraging wolves that are seeking cattle. If 
that does not work, the non-essential experimental population rule 
governing the reintroduction project allows for permanent removal as 
one of the tools to resolve livestock depredation problems.
    Wolf removals are not our preference as they can disrupt pack 
behavior. In order to reduce the economic impacts of livestock 
depredations by wolves, we have suggested a proactive Mexican Wolf/
Livestock interdiction fund. The fund would provide for interdiction, 
incentives and compensation to effected ranchers. We believe that--when 
fully implemented--the interdiction fund will provide a means to offset 
the costs of losses due to wolf recovery to ranchers and allow the 
Service to suspend wolf removals under SOP 13.
Red Knots
    Question: When can we expect action to be taken on this year's 
emergency listing petition for red knots?
    Response: The Service has received four petitions to emergency list 
the red knot. The most recent on February 27, 2008, requested that the 
Service list the U.S. populations of two subspecies of the red knot 
(Calidris canutus roselaari and Calidris canutus rufa) as endangered 
and emergency list one of the subspecies of red knot (Calidris canutus 
rufa). The Service responded to the petitioners in a letter dated May 
1, 2008. In the letter the Service reiterated to the petitioners that 
we had already made a determination that listing the red knot (Calidris 
canutus rufa) is warranted but precluded by other listings of higher 
priority and have added the subspecies to our list of candidates. We 
annually determine whether listing remains warranted and precluded and 
whether we need to utilize the emergency listing provisions of the ESA. 
The Service is currently in the process of making the annual finding 
for this subspecies and anticipates the review and reevaluation of our 
previous finding will be completed by the end of this year. In the same 
letter, we also stated that due to funding constraints, we are unable 
to address the petition to list the red knot (Calidris canutus 
roselaari) this year. Currently all of our listing and critical habitat 
funding for Fiscal Year 2008 has been spent on court orders, settlement 
agreements, and other statutory deadlines. We anticipate making an 
initial finding in the Fiscal Year 2009 as to whether the petition 
contains substantial information indicating the action may be 
warranted.
    Question: Notwithstanding the evidence pointing to the continued 
decline of the species, the red knot was listed as a ``6'' on a 
priority scale of 1 to 12 for candidate species. Why does the red knot 
have such a low listing priority?
    Response: The Service considers three factors when determining the 
appropriate Listing Priority Number (LPN) for a species: (1) the 
magnitude of threats; (2) the immediacy of threats; and (3) the 
taxonomy of the species. Under the third factor, taxonomy, a monotypic 
genus is afforded priority over a full species which is afforded 
priority over a subspecies or distinct population segment. As a 
subspecies of red knot, Calidris canutus rufa could potentially be 
assigned an LPN of 3, 6, 9, or 12 only. As of last year, we had 
determined the rufa subspecies had a high magnitude of threat due to 
the modification of habitat through harvesting of horseshoe crabs to an 
extent that put the viability of the red knot at substantial risk. 
However, we determined the threats were non-imminent because of 
reductions and restrictions on harvesting horseshoe crabs adopted by 
the States in the Delaware Bay region. The red knot was therefore 
assigned an LPN of 6; an LPN of 3, the only higher designation the 
subspecies could potentially receive, would require both a high 
magnitude and a high immediacy of threat.
Cactus Ferruginous Pygmy-Owl (Arizona Population)
    Question: When can we expect the Service to make a finding on 
whether the petition to list the Sonoran desert population of pygmy 
owls is warranted?
    Response: The Service announced on June 2, 2008, that the cactus 
ferruginous pygmy-owl may warrant federal protection as a threatened or 
endangered species under the Endangered Species Act. This decision 
follows an initial review of a petition seeking to protect the pygmy-
owl by adding it to the federal list of endangered and threatened 
wildlife. With this announcement, the Service has begun the 12-month 
status review process.
White Nose Bat Syndrome
    Question: Bats in New York, Connecticut and Vermont are apparently 
affected by the white nosed bat syndrome. Scientists are concerned that 
the syndrome could spread to other states, such as West Virginia and 
Virginia where the endangered Indiana Bat lives. What is the agency 
doing to address this growing problem?
    Response: The Service is working closely with State agencies, the 
U.S. Geological Survey, academic institutions, laboratories, and non-
government organizations to address the threat to bats posed by white-
nose syndrome (WNS). The Service is taking the following actions:
    1.  Facilitating information exchange, coordination, and 
communication by hosting weekly conference calls with state and federal 
agencies throughout the Northeast and Midwest, and maintaining a WNS 
webpage to keep the public and media informed.
    2.  Developing containment and decontamination protocols for 
researchers and cavers to reduce the risk of potentially accelerating 
the spread of WNS.
    3.  Tracking surveyed sites for presence or absence of WNS to 
monitor its apparent spread.
    4.  Mapping caver and biologist movements to investigate any 
possible correlation with affected sites.
    5.  Addressing permitting requirements for listed species work.
    6.  Assisting with field work including collection of samples for 
lab analysis and the counting and capture of live bats for monitoring 
of population health in affected and unaffected regions.
    7.  Working with the states and labs to determine baseline 
information needs in unaffected areas and to develop study designs.
    8.  Developing proposals for collaborative research projects and 
assisting states in identifying and securing potential sources of 
funding.
    9.  Helping to plan and organize a three-day working group meeting 
of all state, federal, and private agencies, laboratories, and academic 
institutions that have been involved with WNS investigations and 
monitoring to date, to further our understanding of white-nose syndrome 
and conserve important bat populations.
Piping Plover Critical Habitat
    Question: Were you aware of the proposed Kenedy Ranch wind project 
in Texas before you announced your plans to re-designate critical 
habitat for piping plover along the Southeast Texas coast?
    Response: Yes, we knew of proposals for two wind farms when we 
received the July 2006 court order to vacate 19 existing units of 
critical habitat for piping plover on the Texas coast and reconsider 
them by May 2008.
    Question: Has the Department or the Service discussed this proposal 
with the project proponent or the State of Texas? If so, can you please 
describe this consultation and the results?
    Response: The project proponents considered and documented whether 
their projects would affect endangered species and concluded that 
piping plovers and their habitat do not occur in the wind farm project 
areas, hence they have drawn the conclusion that piping plovers are not 
anticipated to be affected. Since federal monies or permits are not 
necessary for this project that is on private lands, the project 
proponents are not required to consult with the Service on impacts to 
endangered species.
    Question: Does the Department intend to intercede with the State of 
Texas to request that construction of this project not be permitted 
until such time that additional piping plover critical habitat is 
designated by the Service?
    Response: We are unaware of any Departmental plans to intercede 
with the State of Texas
    Question: Should the Kenedy Ranch Project move forward as planned, 
will the Department pursue enforcement of the Endangered Species Act 
and Migratory Bird Treaty Act when illegal take of piping plover 
occurs?
    Response: Endangered Species Act and Migratory Bird Treaty Act 
enforcement will occur as appropriate on all wind power projects, 
including those planned for Kenedy County.
West Virginia Flying Squirrel
    Question: What are the main threats to the West Virginia Northern 
Flying Squirrel's habitat?
    Response: The main threats that led to the listing of the WVNFS 
were the rangewide clear cut logging of the red spruce-northern 
hardwood forests and fires associated with the logging in the mid-
1800s. The red spruce forests have regenerated on their own and through 
restoration efforts. As stated in our December 19, 2006, proposed 
delisting rule, there is no current threat of clear cut logging within 
the WVNFS habitat, nor is this threat likely to occur in the future. 
The Service determined in the proposed rule that any threat to the West 
Virginia northern flying squirrel's (WVNFS) habitat has been either 
eliminated or largely abated.
    Question: Have all the threats to the West Virginia Northern Flying 
Squirrel's habitat been reduced? If the threats to West Virginia 
Northern Flying Squirrel have not been reduced, why is the Fish and 
Wildlife Service moving forward, especially when squirrel population 
has not been measured?
    Response: Yes, all threats have been eliminated or largely abated 
such that the subspecies no longer meets the definition of threatened 
or endangered under the Endangered Species Act.
    Question: Why wasn't population taken into consideration in the 
delisting proposal?
    Response: The Service considered population dynamics when assessing 
the status of the WVNFS using the best available scientific data. The 
Service considers persistence to be the best indicator of successfully 
reproducing populations for this subspecies. We define persistence as 
continuing captures of WVNFS over multiple generations at previously 
documented sites throughout the historical range. The Service has 
analyzed 20+ years of presence/absence data to determine persistence of 
WVNFS across its range, taking into consideration detectability rates, 
life span, reproductive capacity, dispersal capability, linkages to 
other populations, and the naturally patchy habitat distribution of the 
subspecies. These data consistently indicate a relatively high degree 
of persistence (roughly 80 percent) across the landscape, and are not 
indicative of a declining population of WVNFS.
Questions from Rep. Peter A. DeFazio
    Question: The peer reviews of the draft recovery plan, the SEI 
review, and the members of the habitat working group for the final 
plan, all concluded that all owl habitats should be protected, 
regardless of their location. Why didn't the FWS follow this 
recommendation? Upon what scientific studies is the decision to deviate 
from the habitat working group's recommendation based?
    Response: Input from the SEI report (2008) and the habitat work 
group convened by the Service concerned occupied spotted owl habitat 
and ``high-quality'' spotted owl habitat; these groups did not 
recommend to the Service that ``all owl habitat'' be maintained. The 
final recovery plan looks to the maintenance of ``substantially all of 
the older and more structurally complex multi-layered conifer forests 
on Federal lands outside of MOCAs'' (Recovery Action 32). Maintenance 
of this higher-quality habitat (a subset of suitable habitat) was 
recommended because: (1) these stands include occupied sites, (2) 
costly and time-consuming pre-project surveys can be avoided, and (3) 
chances are reduced of modifying sites either temporarily not occupied 
by spotted owls or actually occupied by spotted owls but not detected 
(due to presence of barred owls).
    Question: Rangewide, only 55% of the MOCAs on the west side 
actually contain owl habitat (p. 89). Given the scientific consensus to 
protect all owl habitat everywhere, why aren't these ``reserves'' 
bigger? How can a species in decline survive--much less rebound and be 
delisted with only 55% of a home, 55% of prey, and 55% of a mate?
    Response: There was not scientific consensus to protect all owl 
habitat everywhere. Input from the SEI report (2008) and the habitat 
work group convened by the Service concerned occupied spotted owl 
habitat and ``high-quality'' spotted owl habitat; these groups did not 
recommend to the Service that ``all owl habitat'' be maintained. 
Recovery Action 5 (page 20) states, ``Manage habitat-capable lands 
within MOCAs to produce the highest amount and highest quality spotted 
owl habitat the lands are capable of producing.'' The final plan 
recommends that lands within the MOCAs that may become suitable habitat 
should be managed to do so. In Table C6 (starting on page 85), the 
percentage of habitat-capable lands within the MOCAs are listed in the 
column titled ``Percent (capable of total)''. The percentages are 
generally above 90 percent.
    Question: Can you name any other species for which FWS has proposed 
reducing existing habitat protections while the species population is 
declining?
    Response: Since recovery plans are guidance documents, the Service 
does not believe that the northern spotted owl recovery plan reduces 
existing protections.
    Question: The MOCAs are based on the reserves proposed in 1990 by 
the ISC, and by the 1992 recovery plan. However, since then, scientists 
(including Dr. Franklin) have concluded that those reserves are not big 
enough or contain enough habitat to help the owl, and that there should 
be more of them. Why aren't the MOCAs bigger and contain more habitat?
    Response: According to the most recent northern spotted owl 
population modeling, the conservation area design as described in the 
Northern Spotted Owl Recovery Plan will address the loss of habitat. In 
fact, the MOCAs on the west side of the Cascade Mountains, added to the 
federal lands managed for northern spotted owls on the east side of the 
Cascades, coupled with the additional Federal older forests maintained 
over the next 10 years while we explore the threat from barred owls, 
will equal or exceed the total amount of Late Successional Reserves.
    Question: You spoke of ``acceptable risk'' in managing for the owl. 
What about the risk of litigation for a recovery plan that doesn't pass 
scientific mustard? What about the risk of region wide injunctions? 
What about the risk of more controversy in my district and state? Do 
these things figure into your calculus of ``risk''?
    Response: The Service is charged with using the best available 
information to create a recovery plan designed to recover the owl and 
incorporate the stakeholders. The Northern Spotted Owl Recovery Plan 
represents such a document.
    Question: According to the final recovery plan, the MOCA strategy 
is based on ``Option 7'' of the ten options discussed in the FEMAT 
report, which provided the scientific foundation for the Northwest 
Forest Plan (Final Recovery Plan, 74). FEMAT states that ``all options 
except option 7 incorporate the Scientific Analysis Team (Thomas et. 
al. 1993) approach to late successional and riparian forest management 
(which enhances both connectivity between reserve areas and increases 
the acreage of late successional and old-growth forest available to 
northern spotted owls)'' (FEMAT, 11-31). Option 7 had the second lowest 
likelihood of leading to a recovered and well-distributed NSO 
population. Why is the final recovery plan based on the only option 
considered by FEMAT that wasn't based on the best available science? 
Why is Option 7 any better today than it was in 1993?
    Response: The recovery plan uses the most recent science available. 
Recent spotted owl population modeling using the latest techniques and 
demographic information indicates the size (MOCA 1s are to support 20 
or more pair, and MOCA 2s to support 1-19 pair) and spacing (no more 
than 12 miles apart for MOCA 1s and no more than 7 miles apart) of the 
MOCAs is expected to provide for a recovery level of occupancy over 100 
years. In fact, the MOCAs on the west side of the Cascade Mountains, 
added to the federal lands managed for northern spotted owls on the 
east side of the Cascades, coupled with the additional Federal older 
forests maintained over the next 10 years while we explore the threat 
from barred owls, will equal or exceed the total amount of Late 
Successional Reserves.
    In addition, the Plan identifies a landscape approach to spotted 
owl habitat conservation on the fire-prone eastern side of the species' 
range that was strongly recommended by leading spotted owl and fire 
experts.
    In theses three Provinces, Eastern Washington Cascades, Eastern 
Oregon Cascades, and the California Cascades, the goal is to maintain 
an ecologically sustainable environment in which spotted owls can 
persist. Spatially dynamic spotted owl habitat patches will be 
identified by a work group after the plan is completed. These habitat 
patches are expected to move around as they are affected by natural 
disturbances, such as fire or insect damage. The entire area outside of 
the habitat patches will be managed to restore ecological processes and 
functions and to reduce the potential for significant losses by stand-
replacement fires, insects and disease. All areas outside of habitat 
patches will be actively managed to reduce risks to spotted owl 
habitat, through such actions as fuels treatments and maintenance of 
large, fire-resistant trees.
    The recovery plan's goal is to maintain 30 to 35 percent of the dry 
forest habitat-capable area in each eastside province for spotted owl 
habitat, which totals more than 900,000 acres. Added to the acres of 
MOCAs, about 7.35 million acres would be managed for spotted owl 
habitat.
    Further, the plan looks to federal land managers to maintain older, 
complex forests on federal lands west of the Cascade crest to benefit 
spotted owls, and identifies almost 2.4 million acres of non-Federal 
lands as Conservation Support Areas, which are meant to provide 
demographic support to the MOCAs.
    Question: What is the difference between the habitat conservation 
strategy you have proposed and the ineffective strategies of the early 
1990s that lead to the owl's listing?
    Response: It is unclear what strategies are being referenced. The 
Service is charged with using the best available information to create 
a plan that it believes is capable of recovering the owl. The Northern 
Spotted Owl Recovery Plan is the first finalized recovery plan for the 
owl and will be implemented in concert with all willing partners.
    Question: Are the MOCAs stationary? The draft recovery plan created 
MOCAs based on a ``rule set'' that the USFS and BLM could use to 
delineate the reserves. I'd like clarification on whether that rule set 
was carried forward into the final plan, or if FWS has drawn these 
lines on a map.
    Response: The MOCAs are stationary and their boundaries are 
displayed in the maps provided in Appendix D of the Recovery Plan 
(pages 93-95).
    Question: How does the FWS define ``high quality habitat''? Is this 
the same as ``nesting, roosting, and foraging'' habitat, or something 
else?
    Response: ``High-quality habitat'' is defined on page 10 of the 
Recovery Plan as, ``Older, multi-layered structurally complex forests 
that are characterized as having large diameter trees, high amounts of 
canopy cover, and decadence components such as broken-topped live 
trees, mistletoe, cavities, large snags, and fallen trees. This is a 
subset of suitable habitat.'' Nesting, roosting and foraging habitat is 
defined differently (page 9) as, ``Suitable habitat that provides 
nesting, roosting and foraging opportunities for spotted owls. 
Important stand elements are high canopy with larger overstory trees 
and a presence of broken-topped trees or other nesting platforms (e.g., 
mistletoe clumps). Some suitable habitat may have limited nesting 
opportunities, but still provide foraging opportunities.'' All high-
quality habitat is nesting, roosting or foraging habitat, but all 
nesting, roosting and foraging habitat is not necessarily high-quality 
habitat.
    Question: The recovery plan states ``the recovery plan specifies 
the spotted owl habitat goals for the MOCAs but defers the actual 
management of those acres to the expertise of the land management 
agencies'' (Final Recovery Plan Appendix F, Response to Comments). 
Since the FWS is the ``expert'' when it comes to the spotted owl, why 
is the agency leaving the actual management requirements up to the USFS 
and BLM to determine?
    Response: While the Service is the federal agency with expertise in 
northern spotted owl biology, the Forest Service and the BLM are 
experts in managing federal forests. Recovery plans are guidance 
documents that are meant to establish the recovery criteria, goals, and 
recommended actions for achieving recovery. Recovery Action 5 (page 20) 
states, ``Manage habitat-capable lands within MOCAs to produce the 
highest amount and highest quality spotted owl habitat the lands are 
capable of producing.'' In other words, all the lands within the MOCAs 
that may become suitable habitat should be managed to do so. The 
Service believes the land management agencies, in technical 
consultation with the Service, have the most expertise on how best to 
actually implement this recovery action.
    Question: The recovery plan states that the MOCAs on BLM land in 
southern Oregon ``coincide with the proposed Late Successional 
Management Areas (LSMAs) in the BLM's preferred alternative for its 
WOPR'' and that ``the best approach for spotted owl recovery now 
appears to be maintain the MOCAs on BLM land and to implement a 
landscape-management approach on U.S. Forest Service land, but this 
discussion requires further analysis'' (Final Recovery Plan, 24). What 
does this mean? Is it possible that there will be no reserves in 
southern Oregon?
    Response: Input from the SEI report (2008) and the fire work group 
convened by the Service clearly indicated that the Klamath Provinces in 
Oregon and California should ultimately be managed in a manner similar 
to the east-side landscape approach. However, specific design of such 
an approach needs more work. On Page 25, the Recovery Plan states, 
``The first task of the [Dry-Forest Landscape] Work Group will be to 
review the interim strategy for the Klamath Provinces and make 
recommendations for a final strategy there. The review should entail: 
1. inclusion of appropriate scientists, Federal agencies, and 
interested parties as appropriate...''
    Question: The recovery planning process for the owl has been highly 
controversial in the past, and has continued today. Given the 
controversy surrounding the draft plan, do you expect to take 
scientific peer review of the final plan? What will you do if that 
review is negative? Will you revise the plan immediately? If you do 
revise the recovery plan, how might that revision affect ongoing 
management actions (timber sales, WOPR, etc.) that tier to the recovery 
plan?
    Response: Consistent with our established policy (see 59 FR 34270), 
the Service conducted peer review of the draft recovery plan and we 
made adjustments to the final plan in response to comments that we 
received. While no further Service-instigated peer review of this plan 
is anticipated in the near future, we could modify the Northern Spotted 
Owl Recovery Plan if the implementation advisors believe sufficient 
information exists to warrant an adaptive management modification.
    Question: I support landscape restoration efforts, both east and 
west of the Cascade crest. The final recovery plan calls for large-
scale thinning east of the crest, which is something I could support. 
However, the recovery plan does not specify what these treatments will 
look like. Who will decide what those forest treatments will be, and 
will there be any independent review of those prescriptions?
    Response: Recovery Action 9 (page 25) calls for the establishment 
of an interagency Dry-Forest Landscape Work Group that will be 
responsible for making recommendations on how to best accomplish the 
goals of the Recovery Plan in those areas. We anticipate this group 
will be interdisciplinary and will include researchers, biologists, 
silviculturists, planners and managers, among other expertise. Projects 
implemented by the land management agencies will be evaluated for NEPA 
clearance.
    Question: How will you determine whether the spotted owl population 
is responding to the recovery plan? Will you use habitat models, or 
``hoot for owls''?
    Response: Spotted owl population monitoring is currently conducted 
through a statistically rigorous, extensive sampling program. Anthony 
et al., 2006, Status and Trends in Demography of Northern Spotted Owls, 
1985-2003, Wildlife Monographs. There are 13 long-term demographic 
study areas (DSAs) across the range of the spotted owl that constitute 
the sampling process. These DSAs are large and cover much of the owl's 
geographic range including a variety of landownership (but mostly 
federal) and management strategies. The monitoring program provides the 
general trend of the species representative of most owl populations on 
federal lands, not the total population of the species. Once the DSAs 
indicate the status of the species is improving toward stability a more 
extensive monitoring effort may be desired for at least 10 years to 
determine if Recovery Criterion 1 is met, i.e., ``The population trend 
of spotted owls is stable or increasing over 10 years of monitoring.''
    Question: If you are relying on habitat models to determine whether 
the species is progressing towards recovery, why are you doing so, 
given that peer reviewers have concluded are not accurate, and do not 
provide enough information to accurately determine the health of the 
owl population? What science supports your habitat model approach, for 
the spotted owl?
    Response: The Service is relying on the results of the demographic 
monitoring program to determine the species' progress. Habitat 
maintenance (as part of the MOCA strategy, the high-quality habitat 
provision and the dry-forest landscape approach) represents only one 
part of the recovery strategy.
    Question: How does the FWS plan to get an aggressive ``hoot and 
shoot'' plan for the barred owl through the NEPA and ESA consultation 
process?
    Response: Recovery Action 29 (p. 31) calls for the design and 
implementation of large-scale control experiments to ``assess the 
effects of barred owl removal on spotted owl site occupancy, 
reproduction, and survival.'' If the results are favorable, we may 
decide to pursue further control efforts. For the initial control 
experiment, we anticipate conducting a rigorous NEPA process, with full 
public review, and conducting an intra-Service consultation on this 
recovery action.
    Question: Is the draft EIS for WOPR consistent with the final 
recovery plan?
    Response: The Western Oregon Plan Revision (WOPR) Draft 
Environmental Impact Statement (DEIS) was based on, and is consistent 
with, the 2007 Draft Recovery Plan, however, the Bureau of Land 
Management is working to make the final WOPR consistent with the final 
recovery plan released in May 2008. The Service has worked closely with 
the Bureau of Land Management and other federal land management 
agencies to discuss what is needed to recover the spotted owl.
    Question: The final recovery plan is expressly predicated on the 
implementation of the Northwest Forest Plan (Final Recovery Plan, 7). 
Yet, the BLM is proposing to eliminate LSRs and substantially reduce 
Riparian Reserves in its WOPR. How will this affect the assumptions and 
conclusions in the recovery plan?
    Response: Where possible and where it made biological sense, MOCAs 
were overlaid on Northwest Forest Plan reserves because of their 
management over the past 14 years. However, the MOCA system, the 
retention of high quality habitat and the dry-forest landscape approach 
are all intended to function independently from the Northwest Forest 
Plan.
    Question: Who is going to conduct the monitoring required by the 
recovery plan? How will it be paid for?
    Response: The current demographic monitoring program is supported 
by the BLM, Forest Service and, to a more limited extent, the National 
Park Service. We anticipate these three agencies, in cooperation with 
the Service, and perhaps the states on state land will continue to fund 
the monitoring program.
    Question: What can we expect from FWS in terms of NSO critical 
habitat, which I understand will be out in early June?
    Response: Except for the areas east of the Cascades, the Service 
intends to designate a critical habitat network that is consistent with 
the Recovery Plan. However, critical habitat requires mapped units and 
is not flexible in recognizing landscapes that naturally change. The 
Recovery Plan does not recommend static conservation areas in the dry-
forest landscape. Consequently, the critical habitat strategy for the 
eastside uses the areas identified in the 2007 draft of the Recovery 
Plan as necessary for recovery.
    Question: Please submit for the record maps of the NSO provinces 
overlaying (a) FS and BLM land ownership; (b) Designated Conservation 
Areas as identified in the 1992 draft recovery plan; (c) LSRs as 
described in the Northwest Forest Plan; and (d) MOCAs under the 2008 
recovery plan.
    Response: The requested materials are attached.

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                                 ______
                                 

Response to questions submitted for the record by Ed Shepard, Bureau of 
            Land Management, U.S. Department of the Interior

1.  The draft EIS for the WOPR was based on the draft recovery plan, 
        both of which were roundly criticized, including by its own 
        scientists. Now that the recovery plan has been finalized, how 
        will the BLM respond? Will the BLM be ``maintaining 
        substantially all high quality habitat'' outside of MOCAs, and 
        managing the remaining land to produce the highest amount and 
        highest quality habitat that those lands are capable of 
        producing? Does that include not logging old growth, which BLM 
        earlier proposed to log under WOPR?
    The BLM is still in the planning process, and I cannot predetermine 
the final decisions that will be the outcome of that process. However, 
I can tell you that the BLM has worked closely with the U.S. Fish and 
Wildlife Service (FWS) during the development of the Final Northern 
Spotted Owl Recovery Plan and BLM's Proposed Western Oregon Plan 
Revisions (WOPR). The BLM released the draft Environmental Impact 
Statement (EIS) in August 2007 and is continuing to work with the FWS 
to make the final EIS consistent with the Recovery Plan. The BLM's 
close collaboration with the FWS will continue as the Recovery Plan 
undergoes adaptive management in the future.
2.  One of the key assumptions of the recovery plan is that ``existing 
        habitat conservation strategies (e.g., the NWFP) would be in 
        place'' (Final Recovery Plan, 7). But WOPR would eliminate the 
        LSRs in southern Oregon (still an area of concern due to past 
        management and the checkerboard), and drastically reduce the 
        Riparian Reserves. What does this mean for the assumptions and 
        conclusions of the final recovery plan? How will the BLM 
        respond?
    The BLM is still in the planning process, and I cannot predetermine 
the final decisions that will be the outcome of that process. The 
quoted text, ``existing habitat conservation strategies (e.g., the 
NWFP) would be in place'' is a baseline assumption made by a panel of 
seven experts for use in a Delphi process at a meeting held on June 1, 
2006, not a key assumption. The final Recovery Plan does not recommend 
maintaining the Northwest Forest Plan (NWFP) late successional reserve 
network for any province. The Recovery Plan for southern Oregon 
includes the following statement:
        ``This Plan recommends implementation of a MOCA network for the 
        Klamath Provinces, but it will be considered an interim 
        strategy until such time another strategy is adopted. A change 
        to a non-MOCA landscape approach, at least on the Forest 
        Service lands, is expected following the work of the Dry-Forest 
        Landscape Work Group (discussed below).
        The MOCAs in the Klamath Provinces in Oregon and California 
        coincide with the proposed Late Successional Management Areas 
        (LSMAs) in the BLM's preferred alternative for its Western 
        Oregon Plan Revision and with U.S. Forest Service LSRs. There 
        is a significant difference in land ownership patterns between 
        the BLM and U.S. Forest Service in this area (i.e., much of the 
        BLM owned land is in a checkerboard pattern, while the Forest 
        Service administers large contiguous blocks of land). BLM's 
        checkerboard land ownership means the agency generally does not 
        manage more than 50 percent of the land in a given area, so its 
        approach to fire management and spotted owl recovery may differ 
        from that of the U.S. Forest Service. The best approach for 
        spotted owl recovery now appears to be to maintain the MOCAs on 
        BLM land and to implement a landscape-management approach on 
        U.S. Forest Service land, but this discussion requires further 
        analysis.'' (Page 24)
    The final Recovery Plan makes no recommendation for the width of 
riparian management areas. The only reference to riparian management 
areas is found on page 19. It notes ``While there is uncertainty 
regarding the forest conditions required for spotted owl dispersal, it 
is assumed dispersal success is better when the habitat between the 
blocks more closely resembles suitable habitat. Land use allocations 
such as visual corridors, riparian management zones, unstable soil 
areas, and special management areas for other species that support 
higher-quality spotted owl habitat embedded in a landscape of forest 
lands managed for timber production should facilitate dispersal of 
spotted owls.''
3.  It seems to me that the BLM is going to have to make extensive 
        revisions to the draft EIS for WOPR, in light of the recovery 
        plan, spotted owl critical habitat due out any day now, and the 
        BLM's own internal science review of WOPR. Would you like more 
        time to make these revisions?
    The BLM has been working closely with the FWS on the Western Oregon 
Plan Revisions and the Recovery Plan. Because of this close 
coordination, we expect to issue a Record of Decision for the current 
Western Oregon Plan Revisions planning process by the end of 2008.
                                 ______
                                 
    The Chairman. Ms. Luxton?

STATEMENT OF JANE LUXTON, GENERAL COUNSEL, NATIONAL OCEANIC AND 
    ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE

    Ms. Luxton. Thank you, Chairman Rahall and Members of the 
Committee, for the opportunity to discuss the proposed rule to 
implement speed restrictions to reduce the threat of ship 
collisions with North Atlantic right whales.
    The North Atlantic right whale is one of the most 
critically endangered large whale species in the world. The 
latest NOAA peer reviewed stock assessment indicates that a 
minimum of 313 individuals were estimated to have existed in 
2002. The minimum population size has likely hovered near 3,000 
[sic] individuals for several decades, having increased from 
perhaps fewer than 100 individuals by 1935 when international 
protection for right whales came into effect.
    From 1995 to 2002, the period when estimates are available, 
the minimum number of right whales alive has fluctuated from 
284 in 1995, to 313 in 2002. These numbers indicate that this 
population remains at risk. Collisions with marine vessels, 
which we call ship strikes, are of the greatest known human-
related causes of right whale deaths and serious injuries.
    To address this threat, NOAA, in collaboration with other 
agencies and stakeholders, developed a right whale ship strike 
reduction program, which includes rulemaking to reduce ship 
speeds in areas where right whales occur. NOAA described the 
program in an advanced notice of public rulemaking, which we 
call ANPRs, in June 2004. After considering comments on the 
ANPR and consulting with other affected agencies, NOAA 
published a proposed ship speed restriction rule on June 26, 
2006.
    The proposed rule would impose a ship speed limit of 10 
knots on commercial vessels 65 feet and greater in overall 
length, which are subject to the jurisdiction of the United 
States. The proposed rule also sought comments on 12 and 14 
knot speed limits. For reasons I will explain in a moment, U.S. 
vessels owned or operated by, or under contract to, the Federal 
government would be exempt from this speed restriction.
    The proposed restrictions would apply in specific marine 
areas and certain port entrances along the East Coast of the 
United States, imposing seasonal speed limits only in parts of 
designated regions that correspond to right whale feeding, 
migration and nursery/calving areas, and high vessel density. 
The areas designated were confined as much as possible to 
reduce economic impact to the shipping industry and the ports.
    The proposed rule also includes speed restrictions that are 
triggered in dynamic management areas where NOAA determines 
there is concentration of three or more right whales, or there 
are one or more right whales in a designated shipping lane.
    NOAA's proposed rule exempted Federal vessels, as I 
mentioned before, based on a determination that national 
security and navigational and human safety missions of some 
agencies may be compromised by a mandatory speed limit. NOAA 
further noted such an exemption would not relieve Federal 
agencies of their obligations to protect endangered right 
whales under the Endangered Species Act, including Section 7.
    In conjunction with this rule, NOAA also completed a draft 
environmental impact statement analyzing six alternatives. The 
EIS included an economic analysis of the rule. NOAA accepted 
written comments on the proposed regulation and the draft 
environmental impact statement, and held several public 
hearings in Jacksonville, Baltimore and Boston during 2006.
    NOAA received more than 10,000 comments on the proposed 
rule from the following groups: State and Federal agencies; 
shipping industry and cruise lines; ports, pilots, marinas and 
longshoremen; whale watch and passenger ferries; recreational 
fishing sector; environmental groups; members of environmental 
groups; and individuals.
    Comments focused on the data available, speed restrictions, 
area covered by the rulemaking, economic impacts and safety 
concerns. Of the comments, more than 9,700 were some type of 
form response.
    After considering all public comments on the proposed rule 
and consulting other affected Federal agencies, NOAA drafted a 
final rule and transmitted it to the Office of Management and 
Budget on February 20, 2007, in accordance with Executive Order 
12866. At present, NOAA's final rule is under interagency 
review.
    NOAA has also taken steps to reduce ship strikes through 
vessel routing measures. The United States prepared and 
submitted to the International Maritime Organization a proposal 
to reconfigure the traffic separation scheme that services 
Boston, Massachusetts. The IMO reviewed and adopted the 
proposal, and the realignment was implemented in July 2007.
    NOAA has also addressed the threat of large whale 
entanglement in fishing gear, another serious problem for right 
whales. On October 5, 2007, NOAA issued a final rule to amend 
the regulations implementing the Atlantic Large Whale Take 
Reduction Plan. This final rule revises the management measures 
for reducing the incidental mortality and serious injury to the 
northern right whale, also humpback whales and fin whales in 
commercial fisheries, to meet the goals of the Marine Mammal 
Protection Act and Endangered Species Act.
    Thank you again, Mr. Chairman, for the opportunity to 
testify. I am happy to respond to any questions.
    [The prepared statement of Ms. Luxton follows:]

      Statement of Jane Luxton, National Oceanic and Atmospheric 
              Administration, U.S. Department of Commerce

    Good morning, I am Jane Luxton, from the National Oceanic and 
Atmospheric Administration (NOAA). Thank you, Chairman Rahall, and 
members of the Committee for the opportunity to discuss the proposed 
rule to implement speed restrictions to reduce the threat of ship 
collisions with North Atlantic right whales.
    The North Atlantic right whale (Eubalaena glacialis) is one of the 
most critically endangered large whale species in the world; the latest 
NOAA peer-reviewed stock assessment indicates that a minimum of 313 
individuals were estimated to have existed in 2002. The minimum 
population size has likely hovered near 300 individuals for several 
decades, having increased from perhaps fewer than 100 individuals by 
1935, when international protection for right whales came into effect. 
From 1995 to 2002 (the period when estimates are available) the minimum 
number of right whales alive has fluctuated from 284 individuals in 
1995 to 313 individuals in 2002. These numbers indicate that this 
population remains at risk. Collisions with marine vessels (``ship 
strikes'') are one of the greatest known human-related causes of right 
whale deaths and serious injuries.
    To address this threat, NOAA, in collaboration with other agencies 
and stakeholders, developed a right whale ship strike reduction 
program, which includes rulemaking to reduce ship speeds in areas where 
right whales occur. NOAA described the program in an Advanced Notice of 
Public Rulemaking (ANPR; 69 Fed. Reg. 30,857) on June 1, 2004. After 
considering comments on its ANPR and consulting with other affected 
agencies, NOAA published a proposed ship speed restriction rule on June 
26, 2006 (71 Fed. Reg. 36,299).
    The proposed rule would impose a ship speed limit of 10 knots on 
commercial vessels 65 ft and greater in overall length, which are 
subject to the jurisdiction of the United States. The proposed rule 
also sought comments on 12 and 14 knot speed limits. For reasons I will 
explain in a moment, U.S. vessels owned or operated by, or under 
contract to, the Federal Government would be exempt from this speed 
restriction. The proposed restrictions would apply in specific marine 
areas and certain port entrances along the East Coast of the United 
States, imposing seasonal speed limits only in parts of designated 
regions that correspond to right whale feeding, migration, and nursery/
calving areas and high vessel density. The areas designated were 
confined as much as possible to reduce economic impact to the shipping 
industry. The proposed rule also includes speed restrictions that are 
triggered in ``Dynamic Management Areas'' where NOAA determines there 
is a concentration of three or more right whales or there are one or 
more right whales in a designated shipping lane. NOAA's proposed rule 
exempted federal vessels based on a determination that national 
security and navigational and human safety missions of some agencies 
may be compromised by a mandatory speed limit. NOAA further noted that 
such an exemption would not relieve federal agencies of their 
obligations to protect endangered right whales under the Endangered 
Species Act, including Section 7.
    In conjunction with this rule, NOAA also completed a draft 
Environmental Impact Statement (EIS) analyzing six alternatives. The 
EIS included an economic analysis of the rule. NOAA announced the 
availability of the draft EIS on July 7, 2006 (71 Fed. Reg. 38,640). 
NOAA accepted written comments on the proposed regulation and the draft 
EIS, and held several public hearings in Jacksonville, Baltimore, and 
Boston during 2006.
    NOAA received more than 10,000 comments on the proposed rule from 
the following groups:
      state or federal agencies
      shipping industry and cruise lines
      ports, pilots, marinas, and longshoremen
      whale watch and passenger ferries
      recreational fishing sector
      environmental groups
      members of environmental groups
      individuals
    Comments focused on the data available, speed restrictions, area 
covered by the rulemaking, economic impacts, and safety concerns. Of 
the comments, more than 9,700 were some type of form response.
    After considering all public comments on the proposed rule and 
consulting other affected agencies, NOAA drafted a final rule and 
transmitted it to the Office of Management and Budget (OMB) on February 
20, 2007, in accordance with Executive Order 12866. At present, NOAA's 
final rule is under interagency review.
    NOAA has also taken steps to reduce ship strikes through vessel 
routing measures. The United States prepared and submitted to the 
International Maritime Organization (IMO) a proposal to reconfigure the 
``Traffic Separation Scheme'' that services Boston, Massachusetts. The 
proposed realignment is expected to provide a significant reduction in 
ship strike risk to right whales and all baleen whale species occurring 
in the area, with minimal concurrent impact to mariners. The IMO 
reviewed and adopted the proposal, and the realignment was implemented 
in July 2007.
    NOAA has also addressed the threat of large whale entanglement in 
fishing gear. On October 5, 2007, NOAA issued a final rule (72 FR 
57104) to amend the regulations implementing the Atlantic Large Whale 
Take Reduction Plan. This final rule revises the management measures 
for reducing the incidental mortality and serious injury to the 
Northern right whale (Eubalaena glacialis), humpback whale (Megaptera 
novaeangliae), and fin whale (Balaenoptera physalus) in commercial 
fisheries to meet the goals of the Marine Mammal Protection Act and the 
Endangered Species Act.
    Thank you again, Mr. Chairman, for the opportunity to testify. I am 
happy to respond to any questions.
                                 ______
                                 

     Response to questions submitted for the record by Jane Luxton

Cabinet Level Decision
 We understand that the ship strike rule has been discussed in 
        Department meetings and could be the subject of a cabinet 
        meeting. This is reminiscent of the rarely invoked God Squad 
        provision where cabinet members meet to decide whether a 
        proposed agency action should go forward notwithstanding the 
        likelihood that species may go extinct.
 How are we not to conclude that the delay in issuing the regulation to 
        protect the right whale is anything more than another example 
        of this Administration's politicization of a scientific 
        decision?
    The process for publishing the ship speed reduction rule has been 
similar to the process for other rulemakings under the Endangered 
Species Act (ESA). It is also the same process that NOAA goes through 
under other mandates such as the Magnuson-Stevens Act and the Marine 
Mammal Protection Act.
    It began with an Advance Notice of Proposed Rulemaking, followed by 
a public comment period during which time the agency conducted public 
meetings up and down the East coast. NOAA then filed a notice of intent 
to prepare a draft environmental impact statement and had additional 
public meetings as required by the National Environmental Policy Act 
(NEPA). Next, following interagency review coordinated by the Office of 
Management and Budget (OMB), as required by Executing Order 12866, NOAA 
published a Proposed Rule and a notice of availability for the draft 
environmental impact statement. Public comments were accepted again as 
required by NEPA and the Administrative Procedure Act. Following this, 
NOAA developed a final rule and final environmental impact statement. 
All three rulemaking documents were sent to the OMB for interagency 
review, as required by Executive Order 12866.
    Under Executive Order 12866, which has been in effect since the 
Clinton Administration, OMB is notified of all proposed federal 
rulemaking actions and coordinates the interagency review of all rules 
that are deemed to be significant. Rules are ``significant'' if they 
may have $100 million or more in annual economic effect, interfere with 
or are inconsistent with actions taken or planned by another agency, or 
raise novel legal or policy issues. This rulemaking has an economic 
impact exceeding $100 million, and thus is considered significant; 
therefore OMB has been coordinating the interagency review process.
 Vice President's Interest
 Why is the Vice President's office interested in the ship strike rule? 
        Scientific issues were not seen as important when OMB reviewed 
        the proposed rule. What has changed?
    This rule is based on peer-reviewed science. The interagency review 
process set forth in Executive Order 12866 will help ensure that the 
Final Rule achieves its regulatory objective in the most cost-effective 
manner, based on ``the best scientific, technical, economic and other 
information,'' and taking into account the views of other agencies and 
members of the public. The rulemaking process is meant to support 
robust interagency dialogue on all of these issues.
 Delay of Rule
 What is the scientific justification for further delays in the 
        proposed rule?
    The interagency review process set forth in Executive Order 12866 
will help ensure the Final Rule achieves its regulatory objective as 
effectively as possible, based on ``the best scientific, technical, 
economic and other information,'' and taking into account the views of 
other agencies and members of the public. The rulemaking process is 
meant to support robust interagency dialogue on all of these issues.
 $100 million Cost
 We understand that the rule could cost international shipping 
        interests $100 million which is significant, even if the amount 
        represents only .1 percent of annual receipts for international 
        shippers. It is my understanding that the Chamber of Shipping 
        of America, which primarily represents American companies, is 
        willing to accept the rule. Yet, the World Shipping Council 
        representing international interests opposes the regulation.
 Why is the Administration giving more credence to the concerns of the 
        World Shipping Council than to the Chamber of Shipping of 
        America, if American companies are willing to do what it takes 
        to protect the whale?
    In conjunction with this rule, NOAA conducted numerous public 
meetings and held several rounds of discussions with the shipping 
community and other stakeholders to describe the content and purpose of 
the ship strike reduction proposals.
    NOAA received more than 10,000 comments on the proposed rule from 
the following groups:
      state or federal agencies
      shipping industry and cruise lines
      ports, pilots, marinas, and longshoremen
      whale watch and passenger ferries
      recreational fishing sector
      environmental groups
      members of environmental groups
      individuals
    Comments from all stakeholders were considered in drafting the 
Final Rule.
 Deadlines
 Why has the White House in reviewing the right whale regulation missed 
        the deadlines in Executive Order 12866?
    Rules are ``significant'' if they may have $100 million or more in 
economic implications, interfere with or are inconsistent with actions 
taken or planned by another agency, or raise novel legal or policy 
issues. This rulemaking is considered significant under Executive Order 
12866 and involves complex issues that have generated substantial 
public comment. OMB is taking the time needed to coordinate the 
interagency review process.
                                 ______
                                 
    The Chairman. Thank you all for your testimony. I 
appreciate it.
    Let me begin by asking Ms. Nazzaro, based on your work, do 
you believe there are ESA decisions that were inappropriately 
influenced by Interior officials other than Ms. MacDonald?
    Ms. Nazzaro. Through the course of our work, we did 
identify that had the Agency broadened their criteria--they 
used three criteria--primarily were the decisions influenced by 
Ms. MacDonald, was the scientific basis of that decision 
compromised and did the decision significantly change or result 
in a negative impact? Had they broadened that criteria, yes, 
they would have identified other decisions for possible 
revision.
    The Chairman. And who?
    Ms. Nazzaro. It might be more important for me to identify 
titles. I don't know if the names will mean as much as to 
identify so that you could get a sense of where in the 
organization they possibly would be.
    The Chairman. That would be a good start.
    Ms. Nazzaro. But one would be the Special Assistant to the 
Assistant Secretary. Another would be--I don't have his title. 
One was a former Assistant Secretary, and the other was a 
Deputy Assistant Secretary. Another was Chief of Staff, so we 
identified a number of individuals.
    The Chairman. Can you name names?
    Ms. Nazzaro. I could.
    The Chairman. Please.
    Ms. Nazzaro. OK. The Special Assistant to the Assistant 
Secretary was Randall Bowman. We found that there were five 
decisions that he affected. Another would be Judge Craig 
Manson; he was a former Assistant Secretary. We found three ESA 
decisions that he impacted. Third, the Deputy Assistant 
Secretary was Todd Willens. He affected one decision. And Brian 
Waidmann, who was Chief of Staff, was not mentioned in 
connection with a particular species, but his name appeared in 
various sources as also reviewing decision packages and 
generally supporting decisions that Julie MacDonald made.
    Now again, this was through our conversations and reviews 
of studies. We are not saying it is an exhaustive list, but we 
have an indication that had they broadened it, there could have 
been others.
    The Chairman. You mentioned Brian Waidmann. Is he still 
Chief of Staff to the Secretary, Mr. Kempthorne?
    Mr. Laverty. Yes, sir, he is.
    The Chairman. He is still holding the title ``Chief of 
Staff.'' And you feel he may have inappropriately influenced 
ESA decisions?
    Ms. Nazzaro. From the sources that we reviewed, sir, we 
found that he frequently reviewed ESA decision packages and 
generally supported decisions that Julie MacDonald made.
    The Chairman. Thank you.
    Let me ask Ms. Luxton a question. Please do not take this 
in the wrong way. I recognize that you are not the witness whom 
we had requested to be with us today. The Agency instead put 
you up, so this is in no way a reflection upon you or your 
abilities, and therefore I will keep the question very simple. 
It only will require a ``yes'' or a ``no.''
    Has the White House interfered in any way on the right 
whale issue? Yes or no?
    Ms. Luxton. I am really not in a position to answer that 
question. I mean, the interagency review process is, I think, 
what you may be referring to, and that is a part of the typical 
review process that goes on with any significant rule, and this 
is classified as a significant rule.
    The Chairman. Do you have any knowledge of any White House 
involvement?
    Ms. Luxton. Well, in the typical interagency process, there 
is always a review by all interested parts of the Federal 
government, and that process is going on now. This is an 
ongoing rulemaking, and that is the normal process.
    The Chairman. Are you aware of any involvement of the 
Council of Economic Advisors?
    Ms. Luxton. Again, all parts of the Federal government are 
part of the interagency review, all that are interested in this 
particular rule, so it is a broad group, just as NOAA is 
involved in interagency reviews when other Agency questions 
come up that have a NOAA aspect of interest to the Agency.
    The Chairman. And why is it taking so long for this rule to 
get out?
    Ms. Luxton. I agree. This rule has taken longer than we 
would have liked it to take. It is a significant rule.
    As I mentioned, we received 10,000 comments on this rule, 
and it involves a great many aspects of vessel safety and 
maneuverability, economics, scientific issues, technical 
issues, and all of them are part of the extensive comments we 
received and the discussions that need to be had to make sure 
we produce the best rule possible.
    The Chairman. OK. Let me ask Assistant Secretary Laverty. 
You heard my opening remarks and the GAO testimony that the 
American people expect more from their government, yet at the 
Interior Department, it appears lessons learned are still being 
lost. The Fish and Wildlife Service bungled its review of the 
Julie MacDonald decisions. Politics is still trumping science.
    Your testimony not withstanding, I would like your response 
to what GAO has reported and to wit: ``Questions remain about 
the extent to which Interior officials other than Ms. MacDonald 
may have inappropriately influenced ESA decisions and whether 
broader ESA policies should be revisited.'' Your comments, 
please?
    Mr. Laverty. Yes, Mr. Chairman. I am not aware specifically 
of the specific references in the report as it relates to these 
outside of Ms. MacDonald. I would be happy to follow up on 
that.
    I can tell you right now that the integrity of the science 
and the process is absolutely clear, and I can assure you that 
decisions that are being made by Fish and Wildlife Service are 
based on the integrity of science, and that there are no 
changes taking place in science.
    The Chairman. Let me ask you what we just heard from the 
previous witness, Ms. Nazzaro, about the Secretary's Chief of 
Staff, Mr. Waidmann, is involved in this decision-making 
process. Do you have a comment on that?
    Mr. Laverty. I am not aware of what his involvement would 
be. I think, as a normal course of review, the Chief of Staff 
does review decisions, but I am not sure what effect it would 
have had in previous ones.
    I have had conversations with him on actions that we are 
taking, but I don't find those to be changing decisions.
    The Chairman. All right. I recognize the acting Ranking 
Member from Nebraska.
    Mr. Smith. Thank you, Mr. Chairman and Members. Certainly, 
I am a relatively new Member to this Committee, and it is very 
interesting the more information that I receive.
    I am a bit curious, Ms. Nazzaro. What is the process? For 
example, Julie MacDonald or Mr. Waidmann--folks like this whose 
names are mentioned in hearings such as this--do you interview 
them as part of your investigation?
    Ms. Nazzaro. We did not interview these individuals. Our 
methodology, as I mentioned earlier, we had talked with 
Director Hall. We also talked to the eight regional directors.
    We also went to 10 field offices in five different regions, 
focusing on those field offices that had the majority of the 
listing and delisting activities, as well as to provide 
geographic coverage.
    Mr. Smith. And so, is there any opportunity given to these 
individuals for rebuttal before their names are mentioned in a 
setting such as this?
    Ms. Nazzaro. We are not making an accusation. We are saying 
they potentially inappropriately influenced it. We did not 
research to what extent they have influenced it or what the 
outcomes were.
    The question asked was to what extent were other 
individuals potentially influencing decisions, and we just felt 
that the scope of the study that the Agency engaged in was a 
rather narrow scope just looking at Ms. MacDonald.
    We understand the allegations that were made regarding her, 
and we understand why they chose to do that as a first step. We 
are just saying, if they had broadened it, they may have come 
up with others.
    Mr. Smith. But the emphasis would be on the potential you 
mentioned?
    Ms. Nazzaro. Correct. Correct. I mean, these came through 
conversations. We also reviewed studies, such as studies by the 
Union of Concerned Scientists and others of that nature.
    Mr. Smith. But these individuals have not been interviewed 
by GAO?
    Ms. Nazzaro. Correct.
    Mr. Smith. Thank you.
    The Chairman. Would the gentleman yield, very quickly, on 
that?
    Mr. Smith. Sure.
    The Chairman. Did you also have access, as part of your 
methodology, to memos?
    Ms. Nazzaro. Yes.
    The Chairman. Thank you.
    Ms. Nazzaro. Emails, documents, Agency documents. Yes. We 
had a quite extensive record of where these individuals' names 
were mentioned numerous times.
    Mr. Smith. Sure. Well, I appreciate that. You know, we have 
a job to do here, and you do as well, and I appreciate your 
service to the public as with anyone here in the room. I mean, 
there are many responsibilities that all of us have.
    I have been sifting through some paperwork here, and I 
would like to submit for the record a rebuttal from Ms. 
MacDonald for the record.
    The Chairman. Without objection. It will be made part of 
the record.
    [The letter submitted for the record by Ms. MacDonald 
follows:]

Julie A. MacDonald
MacDonald Consulting
Phone: 202-333-0844

June 2, 2008

Mr. Gene Dodaro
Acting Comptroller General
Government Accountability Office
441 G. St., NW
Washington, DC 20548

Dear Mr. Dodaro;

    The purpose of this letter is to correct several inaccuracies in 
GAO's report on Endangered Species Act Decision-Making, GAO-08-688T. In 
addition to the report, these inaccuracies--both general and specific 
in nature--were also included in GAO's testimony before the House 
Resource Committee on May 21, 2008. Sadly, most of the errors could 
have been avoided had the author reviewed the source documents and 
interviewed the primary subjects of the report.
    The report misstates the requirements of the Act and is also 
misleading with respect to the duties of the Fish and Wildlife Service 
and the Department of the Interior. With an almost unbelievable lack of 
thoroughness, the authors clearly failed to even read the text of the 
Endangered Species Act. This is a particularly egregious omission, 
since its provisions form the basis of the entire decision-making 
process which is the subject of the report. In addition, the authors 
apparently neglected to perform even the most cursory review of the 
source documents comprising the record. All the emails and comments 
regarding the referenced regulatory documents are readily available and 
a matter of public record. Further, a letter rebutting the specific 
claims made in the referenced Inspector General's Report was made 
available to 8 senior staff at the Department. Despite the fact that 
the rebuttal was referenced publicly in a House Resource Committee 
hearing in July of 2007, the GAO ignored the information, choosing 
instead to perpetuate the IG's mischaracterizations. Finally, the GAO 
never bothered to contact either me or the other officials whose 
activities are referenced in the body of the report.
    Apparently, the GAO prefers to draw the conclusions in its reports 
untrammeled by the facts. Attached is a rebuttal of the specific claims 
included in the report. I presume based on the GAO's mission and core 
values, that the errors and unsubstantiated accusations will be 
corrected by your office. To fail to do so will indelibly mark the 
Office with the taint of partisanship carelessness, and disregard for 
the law and facts.

Sincerely,

Julie A. MacDonald
                                 ______
                                 

                        DETAILED CORRECTIONS TO

               ``ENDANGERED SPECIES ACT DECISION-MAKING''

                           GAO REPORT-08-688T

                              June 2, 2008

    The report is written to support a conclusion that science was 
'inappropriately' influenced. The artifice used to support the 
conclusion has several components, which include:
      Mischaracterization of the requirements of the Endangered 
Species Act;;
      Confusion of the role of the Assistant Secretary's 
Office;
      Misstatement of the role of the Fish and Wildlife 
Service;
      Mischaracterization of legitimate quality control 
activities of the Assistant Secretary's Office;
      Omission of readily available facts
    The approach used by GAO is cynical and contrary to its mission, 
which is to provide Congress information that is objective, fact-based, 
nonpartisan, nonideological, fair, and balanced \1\. Instead, the GAO 
has delivered a document to Congress that could hardly have been more 
misleading or inaccurate. Further, the approach used in developing the 
report is contrary to the core values of GAO, which states all facts 
and analyses in our work are thoroughly checked for accuracy \2\. As 
the following paragraphs will demonstrate, facts were not checked, or 
even considered, and analyses were completed in a context that did not 
reflect the requirements of the law.
---------------------------------------------------------------------------
    \1\ GAO Mission Statement; http://www.gao.gov/about/index.html
    \2\ GAO Core Values; http://www.gao.gov/about/index.html
---------------------------------------------------------------------------
      Mischaracterization of the requirements of the Endangered 
Species Act \3\
---------------------------------------------------------------------------
    \3\ http://frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi?dbname=browse_usc&docid=Cite:+16USC1533
---------------------------------------------------------------------------
    The ESA provides for 3 major regulatory activities, listing, 
designation of critical habitat and consultation on discretionary 
federal activities. All of the regulatory activities rely on one 
standard, the best scientific and commercial data available.
    In the summary, GAO characterizes the standard used for ESA 
decisions as the 'best available scientific information': \4\
---------------------------------------------------------------------------
    \4\ With respect to listing determinations the Act states:
        (b) Basis for determinations
        (1)(A) The Secretary shall make determinations required by 
subsection (a) (1) of this section solely on the basis of the best 
scientific and commercial data available to him...
        With respect to critical habitat designations the Act states.
        (2) The Secretary shall designate critical habitat, and make 
revisions thereto, under subsection (a)(3) of this section on the basis 
of the best scientific data available and after taking into 
consideration the economic impact, the impact on national security, and 
any other relevant impact, of specifying any particular area as 
critical habitat. The Secretary may exclude any area from critical 
habitat if he determines that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the 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.
        With respect to biological opinions the Act states:
        (2) Each Federal agency shall, in consultation with and with 
the assistance of the Secretary, insure that any action authorized, 
funded, or carried out by such agency (hereinafter in this section 
referred to as an ``agency action'') is not likely to jeopardize the 
continued existence of any endangered species or threatened species or 
result in the destruction or adverse modification of habitat of such 
species which is determined by the Secretary, after consultation as 
appropriate with affected States, to be critical, unless such agency 
has been granted an exemption for such action by the Committee pursuant 
to subsection (h) of this section. In fulfilling the requirements of 
this paragraph each agency shall use the best scientific and commercial 
data available.
---------------------------------------------------------------------------
        `The Department of the Interior's (Interior) U.S. Fish and 
        Wildlife Service (Service) is generally required to use toe 
        best available scientific information when making key decisions 
        under the Endangered Species Act (ESA).'
    Then on page 1, GAO repeats the error;
        Generally, Interior and the Service are required to use the 
        best available scientific information when making key ESA 
        decisions.
    And again several times on page 9, where oddly, GAO characterizes 
one out of six activities as most activities...
        `In most cases, ESA decisions must be based at least in part on 
        the best available scientific information (see table 1).'

        `...some ESA decisions are both ``peer reviewed'' and reviewed 
        internally to help ensure that they are based on the best 
        available science...'
    And again on page 8 of the House staff briefing materials:
        `Many ESA decisions must be based, at least in part, on the 
        best available scientific information'.
    However, Table 1 of the GAO Report, found on page 8, recognizes 
that only one activity has a standard based on the less rigorous 
standard of 'information' as opposed to data, and that is the 90-day 
petition finding, which has no regulatory effect. No scientific 
standards are imposed on Recovery Plans.
    There are only two possible explanations for the repeated errors on 
this score. Either the GAO never examined the requirements of the 
statutes or the GAO deliberately ignored the contents of the statute 
and chose to mischaracterize its requirements. Neither explanation is 
consistent with the mission or core values of the GAO.
  Confusion Of The Role Of The Assistant Secretary's Office
    By statute the Assistant Secretary's Office supervises the Director 
of the Fish and Wildlife Service. Yet, in characterizing the activities 
of the Office as 'inappropriate' the GAO report implies that the 
supervisory authority exercised by the office was not authorized by 
law.
    Of the activities undertaken by that office, what exactly was 
inappropriate?
      Requiring that statements in rulemakings were supported 
by data, which is a requirement of the Act?
      Requiring that citations of scientific literature be 
accurate?
      Requiring that comment letters from states and the public 
be read and considered?
      Requiring that the language in final rules was internally 
consistent and fully explained the basis for decisions?
      Perhaps GAO finds that the exercise of the explicit 
authority given to the Secretary to exclude lands from critical habitat 
was inappropriate?
    The above listed activities, which the GAO is characterizing as 
'inappropriate', were conducted by the Office of Assistant Secretary 
Manson. These activities were clearly authorized in law and in fact 
were exercised in fulfillment of the statutory responsibilities of the 
Office. To the extent that final rules were influenced by these 
activities, the influence was consistent with the requirements of the 
Act and due to the fact that the rules did not originally meet those 
standards.
    By using the term 'inappropriate decision making' the GAO neatly 
sidesteps the fact that the decisions were well within the Assistant 
Secretary's purview, but lays spurious doubts on whether they were in 
fact carried out to fulfill the requirements of the ESA.
  Misstatement of the role of the Fish and Wildlife Service
    The ESA gives no role to the Fish and Wildlife Service. While by 
convention and delegation the FWS gathers data, reviews it, and 
prepares regulatory documents; the ultimate decision-making authority 
rests with the Secretary. The Assistant Secretary in supervising the 
FWS sets policy and standards in order to ensure that those documents 
prepared by the FWS meet the standards of the Department of the 
Interior for factual accuracy and legal sufficiency. However, the Act 
gives no authority to the FWS, and the Secretary could just as easily 
through regulation require preparation and response to listing 
documents be prepared by another bureau within the Department of the 
Interior.
    Nevertheless, the report states:
        Although the Sen/ice is responsible for making science-based 
        decisions, Interior takes responsibility for applying policy 
        and other considerations to scientific recommendations.
    There is absolutely no legal authority for such a statement or any 
of the myriad statements implying that the FWS has a statutory role in 
ESA decisions. While the Service may have authority delegated to make 
decisions, that authority is always subject to review of the Director's 
superiors, in this case the Assistant Secretary. The FWS prepares 
documents based on scientific data. The Assistant Secretary, as the 
supervisor of the Director of the Fish and Wildlife Service, reviews 
those documents and in the course of the review, may legitimately 
impose standards on those documents.
    GAO's conclusions regarding the role of the Director of the FWS and 
the Secretary's Office is akin to finding that a Colonel in the Army 
has the authority to override a General's military decisions.
  Mischaracterization of legitimate quality control activities 
        of the Assistant Secretary's Office
    As supervisor of the Director of the Fish and Wildlife Service, the 
Assistant Secretary is responsible for the quality of the products 
produced by the FWS. As a function of his supervision of the Director 
the Assistant Secretary imposed quality control standards. Those 
standards included:
      Requiring that all statements in listing rules be 
supported by data, as required by statute;
      Requiring that all comment letters be considered;
      Requiring that data support identification of habitat as 
occupied;
      Requiring that all studies and data were considered;
      Requiring that all rules be written clearly enough for 
the reader to understand the basis for the decision included in the 
rules;
    First, it is the Secretary of the Interior who is empowered to make 
the decisions under the Endangered Species Act, not staff biologists. 
The statute doesn't envision someone who has spent their entire career 
in a narrow field of study making national policy.
    Second, decisions under the Act are required to be based on best 
commercial and scientific data available, not the more nebulous 
standard of 'best science', or 'best scientific information' either of 
which can be construed to include theory, hypothesis, speculation and 
even opinion.
    GAO has chosen to characterize these activities as 'inappropriately 
influencing' the work. Is it possible to have a more ridiculous or 
nebulous charge? It is the role of a supervisor to ensure the work 
meets the required standards. What the GAO has identified in the report 
is that the Assistant Secretary's Office would not accept opinion and 
speculation in place of data and studies based on the scientific 
method. Just because a scientist has an opinion, doesn't make it 
science.
  Omission of readily available facts
    The report repeatedly mischaracterizes matters of fact which could 
have readily been identified with a minimum of effort. Had the authors 
even taken the trouble to interview me the errors would have been 
avoided. Documentation is available.
      The report misstates the direction given to the FWS staff 
regarding the use of Recovery Plans. The draft information guidance 
document entitled 'Lessons Learned' clearly states for biologists to 
use the science behind the recovery plan, rather than citing the 
recovery plan. This is because there is no scientific standard applied 
to the conclusions and recommendations in a Recovery Plan. The Act 
requires that all information be considered for a Recovery Plan, but 
provides no standard for the final determination as to what is included 
in the plan.
    Thus the Assistant Secretary's Office merely required that 
underlying science supporting the Recovery Plan be used.
    The GAO Report characterized the guidance in this manner:
        `...a practice was developed that Service staff should 
        generally not use or cite recovery plans when developing 
        critical habitat designations.'
    The statement could hardly be more misleading given the actual 
direction given to the FWS. The 'lessons learned' document is a matter 
of public record, and as a matter of fact was the subject of a FOIA 
request. How unfortunate that the GAO staff didn't bother to review 
this guidance.
      The GAO mischaracterizes the nature of policy decisions 
related to application of a standard for `occupied at the time of 
listing'. The Act requires that critical habitat be designated on areas 
occupied at the time of listing. GAO notes that the Assistant 
Secretary's Office interpreted this requirement narrowly, and implies 
this was improper. The Assistant Secretary's Office exercised 
appropriate policy guidance by requiring the FWS to define a standard 
for 'occupied at the time of listing' and include that standard in the 
rule. The standard was determined on a species by species basis. In the 
case of the bull trout, which the GAO references, an area was defined 
as occupied at the time of listing if there was one sighting by a 
qualified professional within a 20 year period; hardly a narrow window.
    The GAO report states:
        `...some proposed critical habitat areas were removed, in part 
        because occupancy by the species could not be ascertained.'
    That means there is no data to support occupancy. The Act requires 
data to make determinations. Is the GAO suggesting that the Assistant 
Secretary's Office should ignore the requirements of the Act and allow 
regulations to be imposed based on speculation and hypothesis?
  The GAO implies that Recovery Plans have a greater role in 
        listing determinations than is provided in law. In the report, 
        the GAO states:
        `ESA does not specifically require the Service to meet recovery 
        criteria before delisting a species'
    In fact, there is no place for Recovery Plans in listing 
determinations. Under the Act, one listing determination is made, and 
that is: whether or not a species belongs on the list. There are five 
factors that apply to the decision. Recovery Plans have no scientific 
standard required in the statute and they have no regulatory authority. 
The Service routinely ignores Recovery Plan standards if and when 
species meet them. In doing so the Service appropriately relies instead 
on the analysis of the five factors which the statute requires for a 
listing determination.
  The GAO mischaracterizes the nature of MacDonald involvement 
        in the Sacramento Splittail Decision.
    The GAO report states:
        `...she edited information regarding the statistical analysis. 
        Service staff said that these edits could make it harder to use 
        the scientific analysis in the future...'
    What the GAO fails to note in its report is that first, all the 
edits were to support the FWS original recommendation on the splittail. 
Second, the wording in the report leads the reader to believe that a 
study was altered in some way, or excluded. The truth is just the 
opposite. The Service had conducted two studies on the splittail. My 
edits ensured that the results of both studies were included in the 
final rule. None of the study data or findings was changed or excluded. 
How odd that the GAO writers failed to either identify the fact or 
report it.
  The GAO Report Ignores the Factual Rebuttal to the First 
        Inspector General Report.
    The GAO report references the IG report, yet fails to acknowledge 
the rebuttal provided to Interior and first referenced in a July 2007 
Resources Committee hearing. In letter responding to a query by 
Congressman Young, the IG stated that his report merely repeated 
allegations. Those two documents should have raised sufficient 
questions regarding the accuracy of the statements in the IG report and 
subsequent statements by selected service staff for the GAO to at least 
check their facts with the subject of the report.
                                 ______
                                 
    Mr. Smith. Mr. Laverty, can you tell us some of the 
challenges, I guess, with implementing recovery programs? I 
know that in my district, we have the Platte River Recovery 
Program. I have tried to be helpful with that so that we can 
arrive at a workable scenario.
    I may not be a big fan of some of the legislation or the 
statutes, but I know that it is here and we need to work within 
those confines and so I want to be a good steward of everything 
afforded me and my constituents. Can you tell us what some of 
the challenges with implementing these recovery programs might 
entail?
    Mr. Laverty. Perhaps as a starter, I think one of the 
challenges comes from working across jurisdictions and working 
with multiple agencies because most species have no 
understanding of administrative boundaries, jurisdictional 
boundaries.
    In my past life as the regional forester with the Rocky 
Mountain Region of the Forest Service, working across agency 
boundaries, administrative boundaries, becomes one of the 
biggest challenges that we have, I think, of bringing people 
together to agree on recovery strategies and then mounting the 
resources to make those come about.
    Mr. Smith. Thank you. I would like to discuss in what 
little time I have left, and if any of you would like the 
opportunity to respond, there is a frustration, certainly, 
among my constituents, and actually I would concede to Mr. 
DeFazio the local nature of many of these issues--that local 
folks typically know the most about a situation, especially as 
it involves the environmental impacts of public policy, or lack 
thereof.
    In my district, there was talk of not having enough prairie 
dogs. They are cute little creatures. Most of my constituents 
would argue that there were plenty of them, and when they got 
word that there weren't enough of them, in some minds, they got 
kind of worked up about that. You know, it seemed to be that 
maybe there was some political science involved with wanting to 
list that; maybe not. I don't know, truly.
    It seems to me that some of these policies are maybe 
premature, and they tend to draw a bigger distance between the 
public and policymakers or policy enforcers. Could you speak to 
that at all?
    Mr. Laverty. Yes, I can. I believe the conversations that 
we have had and, in fact, I shared during my confirmation 
hearings with both committees, is the foundation of science as 
the basis for policy. I think you have to have that as the 
starting point for the conversations.
    The challenge then comes in working with different 
constituent groups, and I think your example of the prairie 
dogs, and black footed ferrets are another example, are what we 
are working on recovering, but yet working with communities, 
working with landowners, disparate types of philosophies, if 
you will, becomes the challenge, and I think that is why we 
have great people working underground to bring these about.
    Mr. Smith. OK. Thank you. I appreciate all of you 
participating today and answering questions, and I yield back.
    Mr. DeFazio [presiding]. OK. Thank you.
    Mr. Laverty, I understand you are accompanied by some 
people behind you who you might need to refer to since I am 
going to be asking you about something which is specific to my 
region and has a long history and is a bit complicated, but let 
me ask a general question first.
    I mean, given your professional background, do you believe 
that peer review is useful?
    Mr. Laverty. Absolutely.
    Mr. DeFazio. OK. And then when the Agency solicits peer 
review, what do you think they should do with the peer review?
    Mr. Laverty. Well, I can share with you the peer review 
that we did on science as a framework for the polar bear 
listing. I think it just sharpens the final product, and I 
believe you can look at examples on the science reports that 
were done by USGS and the peer review comments. Those were 
incorporated into the final product.
    Mr. DeFazio. OK. So they actually incorporated some of the 
critique or suggestions from the peer review into the final 
product?
    Mr. Laverty. I believe the final review incorporated 
thoughts. Probably not all of them.
    Mr. DeFazio. Right.
    Mr. Laverty. I would imagine if you went back and looked at 
the----
    Mr. DeFazio. So generally, when you solicit peer review, it 
would be useful to receive it, evaluate it, and then 
incorporate it into your final recovery plan? That is just sort 
of a simple question.
    Mr. Laverty. Sure.
    Mr. DeFazio. OK. Good. All right.
    Mr. Laverty. I understand.
    Mr. DeFazio. OK. Again, you may not be able to address 
this, but I guess my question would be, in the case of the 
recovery plan for the spotted owl, the Agency did solicit peer 
review and received a critique which the Agency had solicited 
in April 2008, but they rewrote the recovery plan before they 
received the peer review, and the peer review was 
extraordinarily critical of the recovery plan.
    I guess, perhaps to Mr. Lohoefener----
    Mr. Laverty. Lohoefener. Yes, sir.
    Mr. DeFazio.--if we could perhaps allow him to answer the 
question?
    Why are we rushing ahead with the draft recovery plan 
without having a chance to fully incorporate the critique which 
you solicited and received only last month?
    For the record, state your name and position, please. You 
will have to pull that a little closer.
    Mr. Lohoefener. Ren Lohoefener, Regional Director, Pacific 
Region, the United States Fish and Wildlife Service.
    Thank you for that question. It gives me the opportunity to 
correct a misconception. We received the first drafts of the 
SEI report, the solicited peer review that you referred to, in 
either late March or early April. That draft changed in very, 
very minor ways from the final.
    We began using the first draft the minute we had it and, in 
fact, as the SEI report was being developed, the principal 
contractor on that, Dr. Steven Courtney, was in almost daily 
contact with our recovery leader, Dr. Paul Fifer. So, from the 
very beginning, we used the information that was being 
collected in the SEI report to craft the final report.
    Mr. DeFazio. Well, I can see it appears that, particularly 
on the east side, you were somewhat responsive, but I have real 
concerns, and some of your east side work I think does address 
sustainability of those ecosystems and the potential for 
recovery over there, but I have particular concerns about the 
west side.
    Has there ever been another recovery plan where you have a 
declining population where you recommend reducing existing 
habitat?
    Mr. Lohoefener. Again, Congressman, thank you for that 
question. Again, it gives me the opportunity to correct a 
misconception that seems to be out there.
    I believe the reduced amount of habitat you are referring 
to goes back to the Northwest Forest Plan. You will recall the 
Northwest Forest Plan addressed the needs of over 100 species 
in addition to the spotted owl and, in fact, the Northwest 
Forest Plan did not lay out any recovery criteria specific to 
the forest plan.
    Therefore, it is no great surprise that when we write a 
plan specific to the spotted owl the habitat, which is still 
well over six million acres recognized as needed for the 
spotted owl, is less than the forest plan.
    On the west side, which you referred to, we maintain what 
we call managed owl conservation areas, which are principally 
the reserves.
    Mr. DeFazio. Just to clarify, unfortunately I know way too 
much about this. I have been involved probably as long or 
longer than you have on this issue, and I just hate revisiting 
all this stuff.
    As I look at those, they remind me an awful lot of the 
preexisting habitat conservation areas which actually were in 
place, but led actually to the injunctions which we had. We 
seem to be harking back. Has the science changed on evaluating 
those areas in the last 22 years?
    Mr. Lohoefener. Congressman, I would fully agree. Your 
experience out there over the last 18 years with the listing of 
this owl is longer term than mine. No doubt about that. Many 
things have changed in the range of the spotted owl, not the 
least of which is the new threat we recognize, the barred owl.
    On the west side, to get back to that issue, in addition to 
the conservation areas that have been set up I particularly 
congratulate the Forest Service and the Bureau of Land 
Management for stepping forward and agreeing to look at habitat 
that may serve as a buffer, as an ability to keep the spotted 
owl and the landscape as we deal with the barred owl question.
    They have voluntarily stepped forward and agreed to at 
least for the next 10 years as we look at the barred owl 
question maintain that complex forest system. We also are 
looking to the state and the private individuals out there to 
maintain the connected areas between the reserve areas, so I 
think we have an outstanding strategy, especially for the next 
10 years, and if we can control the barred owl threat I look 
for us to turn the corner on recovery of the spotted owl.
    Mr. DeFazio. OK. I have exceeded my time, but I will have 
more questions.
    I would now turn to Mr. Duncan.
    Mr. Duncan. Thank you, Mr. Chairman. I don't really have 
any questions since I just got here, although I was told that 
the recovery plan for the spotted owl has doubled from $189 
million to $400 million. Is that correct? If so, why is that?
    Mr. Lohoefener. Actually your last estimate is a little bit 
low. I think it is even a little bit more than that.
    A large part of the funds being tied up in the needs for 
the owl recovery is the recognition of the huge need to manage 
against wildfire on the east side. That is a very expensive 
thing to do.
    Mr. Duncan. So if that $400 million is low, what is the 
current estimate of the cost?
    Mr. Lohoefener. It is in the recovery plan. Without looking 
at it specifically, it is in the neighborhood of $450 million, 
I believe.
    Mr. Duncan. All right. Thank you very much.
    Mr. Lohoefener. Assistant Secretary Laverty points out to 
me it is actually $459 million.
    Mr. Duncan. All right. Thank you.
    Mr. DeFazio. With that, Mr. Grijalva would be next.
    Mr. Grijalva. Thank you, Mr. Chairman.
    Ms. Nazzaro, can you briefly elaborate? We understand 
scientists were instructed to Julie-proof their decisions to 
gain Ms. MacDonald's approval for their work. Can you elaborate 
on that? What does it mean to Julie-proof a decision?
    Ms. Nazzaro. Yes. This was a term that we heard during our 
interviews with some of the Service biologists regarding their 
decisions.
    What this would be, it would be an act of anticipating what 
it would take to get a decision approved by Julie MacDonald, so 
in their activities, they were writing the decision based on 
that criteria rather than on the basis of the science--what 
they anticipated she was looking for, rather than using what 
the science would have dictated.
    Mr. Grijalva. Thank you.
    Ms. Luxton, can you tell me and the Committee why the Vice 
President's office is interested in the ship strike rule? You 
know, OMB reviewed the proposed rule, didn't seem to have any 
issue with it. What has changed since then?
    Ms. Luxton. Well, again, Congressman, the interagency 
review process provides the opportunity for any part of the 
Federal government that has an interest in the issue to be part 
of a robust dialogue to make sure that the rule is as strong a 
final product as it can be.
    Beyond that, I really can't get into the details of the 
interagency review process in an ongoing rulemaking.
    Mr. Grijalva. OK. Secretary, in January Director Hall 
issued a scientific code of conduct for the Department, but it 
doesn't apply to the Assistant Secretary, Deputy Assistant 
Secretary or anyone else in those offices.
    Would you consider the idea of it being Department-wide 
including those offices, the application of that code of 
conduct?
    Mr. Laverty. The first day on the job, I spent some time 
with Dale, as the Director of the Fish and Wildlife Service, 
and his staff as well as with my immediate staff, and I shared 
with them my performance expectations as it relates to the 
involvement of my staff with Dale and his staff.
    I believe that the framework that we established at that 
moment in time talks very clearly about the roles and 
relationships of the Fish and Wildlife Service in terms of the 
integrity of science and the role and interaction that my 
office would have with both the Fish and Wildlife Service, as 
well as the Park Service.
    I believe it sets the bar very high, and I think the 
Secretary has also done a great job in terms of establishing a 
standard of performance and ethics, and with those elements in 
place I believe that we have the mechanism in place to do the 
kinds of things that need to be done to hold again the 
integrity of science.
    Mr. Grijalva. Without the application of the code?
    Mr. Laverty. I think Dale's code is an absolutely important 
part.
    Mr. Grijalva. That should apply to the respective offices 
that I referred to--Assistant Secretary, Deputy Assistant 
Secretary and their staffs, Chief of Staff?
    Mr. Laverty. It certainly fits for all of our folks, and I 
believe that the Secretary's code of ethics sets the standard 
on behavior across the Department.
    Mr. Grijalva. OK. If I may, Mr. Secretary, two territorial 
issues dealing with the endangered species.
    First, the cactus pygmy owl in Arizona in my district. It 
was delisted in April 2006. I think the conclusion that Fish 
and Wildlife came up with is that while the population was 
endangered in southern Arizona that there was more of the 
species in Mexico. Consequently, the protection shouldn't be 
extended.
    A petition was filed, I think, on March 15, 2007, to list 
the Sonoran Desert population of pygmy owls, which includes 
distinct owls between Arizona and New Mexico. The 90-day period 
on the petition was due in June. It has been almost a year. Can 
we expect the Service to have a finding on the petition to list 
in any timeframe soon?
    Mr. Laverty. Mr. Grijalva, I will follow up on that as soon 
as I get back. I am sorry. I can't tell you the exact status on 
that one, but I will follow back up when I get back.
    Mr. Grijalva. And let me just continue with the reasoning 
of delisting the pygmy owl.
    If we follow that reasoning, Mr. Secretary, then wouldn't 
it be accurate to say that wolves, grizzly bears, jaguars, 
Canadian lynx, and other species found in the U.S. but also 
found in greater numbers in Canada and Mexico, wouldn't they be 
warranted for delisting as well if you follow that reasoning on 
this particular species?
    Mr. Laverty. I believe the status reviews of the Fish and 
Wildlife Service considers populations at large.
    Mr. Grijalva. And the other species is the Mexican wolf. 
Experts tell us that it is probably necessary to call a 
moratorium on the taking, on take, until there is a task force 
of experts that can really provide guidance.
    Do you agree with that concept? How do you square the 
additional killing or permanent removal of wolves under 
Standard Operating Procedure 13 with the ESA requirement that 
killing and permanent removal must not preclude progress to 
recovery? How do you reconcile that and the moratorium so 
experts could convene and provide some real guidance to the 
Department?
    Mr. Laverty. Mr. Grijalva, I understand a little bit of 
what is taking place as it relates to the Mexican gray wolf, 
and I know that they are gathering additional information as 
part of the 10[g] effort.
    How all those pieces come together and incorporate not only 
the new science and what they are finding in terms of what is 
actually happening with numbers of wolves, but also then the 
interaction with the grazing community, so I think there are 
some things that are going on that will help in terms of 
defining what needs to be done.
    Mr. Grijalva. But the reconciling of Procedure 13 and 
recovery?
    Mr. Laverty. I think that has to all be part of that.
    Mr. Grijalva. Thank you.
    Thank you, Mr. Chair.
    Mr. DeFazio. I now turn to Mr. Gohmert.
    Mr. Gohmert. Thank you, Chairman. I appreciate having this 
hearing because this certainly is an issue that needs to be 
dealt with.
    Let me ask anybody that knows. I had read somewhere--and 
you know you can't trust everything you read, and that is why I 
am asking--that there have been spotted owls spotted mating in 
such innocuous places as a K-Mart sign. Have you all read or 
heard anything like that? Other places outside of the virgin 
woods. Are you aware of any spotting of the spotted owl outside 
their virgin wood territory?
    Mr. Lohoefener. Thank you for that question. One thing I 
learned way back when I took ornithology in college was that a 
bird can show up any place, any time. That is the benefit of 
having wings.
    Certainly owls disperse. I have no doubt that they can get 
lost at times and show up places that normally they wouldn't 
be.
    Mr. Gohmert. Well, my thought was that if the spotted owl 
were capable of mating on a K-Mart sign then maybe as an 
endangered species we ought to consider the K-Mart signs 
because they have been in financial trouble. We have lost a lot 
of K-Marts.
    Maybe we could bring a bunch of the K-Mart signs together 
and have them in a little K-Mart forest and encourage the 
spotted owl there because as I read and the Oregonian said the 
versatile and voracious barred owl is proving far more adept at 
getting rid of the small owls, such as the spotted owl, than 
the Endangered Species Act was in saving it.
    What gets me is for years we heard the Federal government 
had to stop the logging in the Northwest. We put thousands and 
thousands of people out of work. We put thousands of people 
into poverty to save this little owl, and it turns out we 
weren't saving the owl. Nature is taking care of getting rid of 
the owl with the barred owl moving in.
    Sometimes it just seems that we get so arrogant, that we 
think that we are so much more powerful than nature, that we 
are going to come in. I don't know. Have there been any 
thoughts of maybe killing some of the barred owl to try to save 
the spotted owl? Is that where we are going to intervene next 
is to try to stop nature from taking its course? Do you know?
    Mr. Lohoefener. You ask a good question, Congressman. There 
are two questions revolving around the barred owl. Should we 
control barred owls, and can we control barred owls?
    The first question is a policy question. The barred owl is 
protected by the Migratory Bird Treaty Act itself. It is a 
policy question we need to address in a public forum soon and 
resolve that.
    The second question, can we control barred owls, is an 
equally relevant question. My information shows that the barred 
owl now occurs throughout the range of the northern spotted 
owl, so that is a large area. I am not at all sure even if 
the----
    Mr. Gohmert. Now, they originally weren't in some of the 
northwestern forests where the northern spotted owl was. Isn't 
that correct? They have moved into that territory now, as I 
understand it.
    Mr. Lohoefener. My information is that over the past 100 
years the barred owl has been moving first west through Canada 
and now south down through Canada and now throughout the range 
of the spotted owl, even down into California, so it has 
changed its range.
    Many species change their range through time. As climate 
change happens, I think we expect this phenomena to be more 
common. All the more need to address the philosophical question 
of should we manage the species.
    Mr. Gohmert. You bring up climate change. There is another 
issue because the climate change experts assured us back in the 
1970s absolutely certain. We had 30 years showing that the 
climate was changing. It was getting colder.
    We were told repeatedly we are at the beginning of a new 
ice age. I am going, ``Do you really think so?'' Thirty years. 
No. We have 30 years of data showing that we are at the 
beginning of a new ice age. Thirty years later, we are saying 
the data shows we are at the beginning of burning up the 
planet.
    Let me just mention this. I will tell you, I am really a 
bit emotional about this in addition to being sarcastic a 
moment ago. I was talking to an 83-year-old lady back home, and 
she is not getting the change she believes in or what she ought 
to have, but she is now paying $400 to $500 a month for energy, 
and she is thinking she needs to change and go back to her 
energy source when she was a little girl of wood because we are 
putting so much of our vast resources off limits. We are 
endangering species like my 83-year-old constituent back home.
    With this Endangered Species Act, Mr. Chairman, we had an 
improvement in the last Congress that passed the House because 
it took head on this issue of one percent of the species being 
saved. We want to save the species.
    This has not been the way to do it, and we ought to end 
this policy that encourages shooting, shoveling and shutting 
up. We ought to pay people if we take their land because they 
have an endangered species. We would start saving a lot more 
species.
    Thank you. I see my time is up.
    Mr. DeFazio. Thank you. Just a quick response, living at 
the epicenter of the spotted owl controversy.
    The spotted owl is one of many potential indicators for old 
growth ecosystems. The fight is now and always has been about 
the last vestiges of old growth in the Pacific Northwest, plain 
and simple. Distill out all the science. That is what it is 
about.
    Until we protect that old growth, we are going to continue 
to have this controversy. We can argue it infringes the spotted 
owl or other issues, but that is what it is all about, it has 
always been about. We are stepping backwards to the 1990s, and 
I just fear we are going to end up seeing our forests totally 
shut down again. That is going to be a disaster.
    Mr. Gohmert. Will the Chairman yield for a question?
    Mr. DeFazio. Certainly.
    Mr. Gohmert. One of the things we figured out to save older 
forests in east Texas is to go in and trim undergrowth and have 
fire lanes to prevent spreading of fire. Is that something that 
is being done or contemplated to make sure that nature doesn't 
wipe out the old growth forest?
    Mr. DeFazio. Nowhere near enough actually. I am developing 
a plan substantially based on thinning, both green thinning and 
fuel reduction thinning. We haven't had adequate budgets to 
implement our fuel reduction in the Pacific Northwest.
    That is part of their proposed recovery plan on the east 
side. I think that has a lot of merit. The west side doesn't 
have as much fire danger, but southern Oregon does. I don't 
think their plan gets at that issue.
    No. You are right about that. We do not want to lose these 
ecosystems to unnaturally intense fires that come from poor 
management over a number of years, so the gentleman is correct 
there.
    Mr. Inslee?
    Mr. Inslee. Thank you.
    Mr. Laverty, folks my age are really excited about maybe 
having grandkids, and we are very concerned those grandkids are 
going to grow up in a diminished world, a world without polar 
bears, without salmon, without orca.
    We are doubly concerned because this Administration has 
given them nothing but delay and dysfunction and just outright 
deceit in this endangered listing situation. I think that 
unfortunately continued in this really hoax of a polar bear 
listing. I want to ask you about that.
    I want to make sure I understand. Despite my friend Mr. 
Gohmert's argument, the Bush Administration has concluded, has 
it not, that the best available science indicates that the 
polar bear faces a major risk of extinction within the next 
century because of global climactic changes associated with 
global warming gases? That is true, isn't it?
    Mr. Laverty. Mr. Inslee, the listing decision and the best 
available science that came to us from perhaps the best 
scientists in the world as it relates to the understanding of 
polar bears and the Arctic conditions tells us that the listing 
basis was based on the fact of sea ice lost and continued sea 
ice loss.
    Mr. Inslee. Right. And the sea ice loss is due to climactic 
changes caused by human anthropomorphic introduction of 
greenhouse gases into the atmosphere. The Bush Administration 
has reached that conclusion, has it not?
    Mr. Laverty. There is no question, and I think everyone 
agrees, that warming is taking place.
    Mr. Inslee. And we all agree and the Bush Administration 
agrees the warming is taking place at least in substantial part 
because humans are putting greenhouse gases in the atmosphere. 
Just say ``Yes." We can move on.
    Mr. Laverty. I would agree, and I think you----
    Mr. Inslee. You agree that the Bush Administration----
    Mr. Laverty.--have to look at that from a very global 
perspective across the United States.
    Mr. Inslee. OK. Now, when you reach a conclusion like that, 
the Endangered Species Act gives a promise to Americans, does 
it not, that the Federal government will change course to 
reduce the threat that would cause this extinction? You 
certainly agree with that, do you not?
    Mr. Laverty. The challenge that you have with that question 
is linking the cause of emissions to a specific point and 
impact on the habitat. You can't do that.
    Mr. Inslee. You agree with me that a listing decision calls 
for the Federal government to change course so that it can 
reduce the threat caused by the problem. Isn't that true? I 
mean, come on. Everybody agrees with that, right?
    Mr. Laverty. The listing decision is to help recover the 
species.
    Mr. Inslee. Right. So let us talk about what the Bush 
Administration has done as a result of this listing decision.
    The day before the listing decision, it opposed a cap on 
the trade to reduce the threat of global warming that would 
cause the extinction of this bear and the collapse of the polar 
ice sheet, which is already occurring. We have already lost a 
million square miles last summer of the polar ice cap.
    The day after the listing did the Bush Administration 
embrace a cap in the trade system?
    Mr. Laverty. I would take your comment.
    Mr. Inslee. Well, just so we can be clear, the listing did 
not cause the Bush Administration to change one iota in its 
resistance to the single most important thing that can prevent 
the loss of the Arctic and the loss of the bear, which is the 
cap in the trade system. Isn't that right?
    Mr. Laverty. I would suggest that dealing with emissions 
and climate change is a global issue. It is not going to just 
take place here in the United States.
    We know from the science that if we shut off emissions 
today that it would take 40 plus years before we would see a 
change in conditions in greenhouse gases.
    Mr. Inslee. Right. We will get to that.
    Mr. Laverty. I am sure we will.
    Mr. Inslee. You will have a chance to put your talking 
points on the record.
    Did the Bush Administration embrace a renewable portfolio 
standard for clean energy as a result of this listing of this 
bear?
    Mr. Laverty. I can't tell you if it was related to the 
bear.
    Mr. Inslee. Did the Bush Administration change its position 
regarding research and development budgets for clean energy 
that can save the polar ice cap and this bear as a result of 
this listing?
    Mr. Laverty. I don't know that it is related to the bear.
    Mr. Inslee. Well, the answer would be no, right?
    Mr. Laverty. I don't know if it was related to the bear.
    Mr. Inslee. Well, did the Bush Administration do anything 
as a result of listing this bear? The answer is no.
    Did it change its permitting process for oil and drilling 
rigs in the North Sea?
    Mr. Laverty. I believe we already have protection in oil 
and gas drilling in the North Sea with MMPA.
    Mr. Inslee. Did it change? Did it change its permitting 
process for drilling in the North Sea as a result of this 
listing?
    Mr. Laverty. I would say again because of the protections 
that are already provided through MMPA there was probably not a 
need to do that.
    Mr. Inslee. All I hear from you in this listing is a list 
of things the Bush Administration has refused to do, even 
though it has concluded that this bear is going to go extinct 
because of global warming.
    I haven't heard a single thing on the list of what the Bush 
Administration is going to do as a result of this listing that 
will, in fact, prevent the extinction of this bear and the 
allowance of our grandkids to have this bear in their life.
    Now, can you point to a single thing the Bush 
Administration has done as a result of this listing?
    Mr. Laverty. I would say that as a result of the soliciting 
that took place last week that we have already done some things 
to move ahead on what we can do to protect this species.
    I, too, because of my age--I have grandchildren. I have a 
granddaughter and I have a grandson, and I engage in 
conversations with my grandkids about the polar bear. They are 
as concerned about the polar bear as I am, and I believe that 
we are on course to do the kinds of things in terms of raising 
the awareness of American people globally about what needs to 
take place to deal proactively with the challenges.
    This is not just a United States issue. This is a global 
issue, and I believe that we have to be working harder globally 
to deal with this issue.
    Mr. Inslee. That is great, but we are the Federal 
government of the proudest country in the world, and you 
haven't done a single thing to protect these bears. You can't 
tell your kids or grandkids you have done anything, and you 
can't tell me you have done anything because you haven't done 
anything.
    Mr. DeFazio. The gentleman's time has expired. Thank you.
    I would turn now to the gentleman from Alaska, Mr. Young.
    Mr. Young. I thank the Chairman. It is awfully difficult 
for me to sit there. You know, thank God for George Bush.
    If we wouldn't have had the hurricane, if we wouldn't have 
had the earthquake in China and the polar bear cap habitat 
wouldn't be lost. I mean, the whole thing. It is just marvelous 
to watch somebody instead of using science browbeat somebody at 
the Department of Interior on nothing.
    If anybody reads the geology of the world and the past of 
the world, 11,000 years ago there was no ice cap and the polar 
bear survived. That is amazing. I am one of those few people 
who do not believe that man is creating this so-called climate 
change, and 300 other scientists from your state, by the way, 
and other areas around this nation agree with me.
    No one wants to debate the issue because we have fallen 
into this idea that this whole thing is coming to a collapse, 
and the ice cap is disappearing and the polar bears are going 
to disappear and that is nonsense. I have geologists come to me 
and talk about the oil under the North Pole. Now, if that is 
the case there wasn't an ice cap.
    Think about that a moment. All I know is, Mr. Chairman, and 
I don't want to be partisan in this, is that Bush is blamed for 
the high cost of gasoline. I would respectfully say we have 
done nothing to mount the supply since 1973. The last time this 
Committee passed the trans-Alaskan pipeline is the last Act 
this Congress has done to promote supply.
    Demand is going up. Supply is going down. We have a great, 
great supply of oil in the Chukchi Sea, the Beaufort Sea and 
other parts of Alaska, let alone the Gulf of California or the 
coast of California and the coast of Florida, and yet no one 
wants to develop it. I want to ask my American people if they 
like paying $4 a gallon. It will be up to $6 a gallon by the 
end of July, so you better buy some and store it because this 
Congress hasn't acted.
    Now, I have said this about this Congress. Not you. We 
haven't done nothing. We were in control 12 years and did 
nothing. The Congress is irresponsible when it comes to supply, 
and we must do this supply equation in delivery of fuel to this 
nation if we want an economic base.
    Mr. Laverty, one of the things I would like to know is you 
made a decision. I am not overly happy with the threatened 
decision, but it is better than endangered. What model did you 
base the fact that these bears are threatened?
    In fact, there are I think 25,000 polar bears now in the 
world and a few years ago there was less than 15,000, so 
something is occurring. What was the model that you used in 
finding the decision on how these were listed?
    Mr. Laverty. Congressman Young, the model that provided the 
framework was based on the IPCC models. We put together an 
ensemble of those models, going back and looking at how they 
fit with what has happened in the past and then projecting into 
the future. That became the foundation for the estimates out in 
the future.
    The other part that factored into that was the actual 
observed trends and what is actually happening with sea ice 
loss and how it relates to the forecasting models. Since the 
sea ice is the foundation for that species in terms of its food 
gathering and becomes the important part of it, any time you 
look at habitat loss that becomes a challenge.
    I believe that wildlife modeling becomes an extremely 
important part of this. You talk about the population that 
exists today. Much of the population recovery today is because 
of managed harvest levels, so it has brought it up from places 
where probably back in the 1960s and 1970s we were down around 
10,000 and 12,000 bears, and because of managed sustainable 
harvesting that population is back up.
    Now the bears are facing a different kind of threat, and 
that is the loss of habitat. That was the foundation for the 
decision.
    Mr. Young. Again, you know, I don't want to dispute this, 
Mr. Chairman.
    Keep in mind I heard the same argument about Terror Lake in 
Kodiak. We couldn't build a lake and raise the water because 
there were two brown bear dens, and they would be flooded. I 
just ask you how dumb those bears are because we did build the 
dam, and the bears just moved above the waterline to another 
denning area.
    We are the only species that I know of who are not trying 
to adapt to climate change, if there is climate change, and 
apparently some people think there is. Is it man caused? I 
don't believe it is.
    But if that is the case, then we are the only ones that 
want to keep everything at status quo instead of looking at 
adaption. Animals will adapt. They will not be extinct, 
contrary to what some people say in this room. But oh, woe is 
us. They are all going to die. They didn't do it 11,000 years 
ago.
    It is an amazing thing, but of course we didn't have 
scientists and newspapers and Congressmen that just go on 
emotionalism about how the world is coming to an end and saying 
maybe we ought to think about adaption if this is occurring.
    Mr. Laverty, again as I talked to the Secretary and 
yourself, we have some other issues concerning polar bears that 
we will discuss at a later date. Hopefully we can solve those 
problems together.
    I am glad to see that some people said in this room earlier 
on, according to information I received, that someone had 
supposedly done something wrong without really backing it up. I 
suggest before anyone makes a statement that might impugn 
someone's character that they might want to look at the facts 
and understand it.
    I yield back, Mr Chairman.
    Mr. Duncan. Would the gentleman yield just for a second? 
Just very quickly.
    Mr. Young. Go ahead.
    Mr. Duncan. I am just curious about one thing that was just 
said, and I want to see how accurate it is. You said the 
population of the polar bears was 10,000 or 12,000 in the 
1970s. Is that correct?
    Mr. Laverty. That is correct, sir. Yes.
    Mr. Duncan. And what is it now?
    Mr. Laverty. Approximately 20,000 to 25,000.
    Mr. Duncan. All right. Thank you.
    Mr. DeFazio. We would now turn to Mr. Sarbanes.
    Mr. Sarbanes. Thank you, Mr. Chairman. Thank you to the 
panel.
    I wanted to go back briefly to the ``Julie-proofing'' 
concept that Congressman Grijalva was asking you about, Ms. 
Nazzaro, because there are two sinister consequences to what 
you are describing. There are implications here.
    One is when science comes up unfiltered and then it is 
rejected, which is a problem that we have been discussing and 
actually is analogous to intelligence, for example. In the 
intelligence community that comes up and then gets rejected. 
That is bad enough.
    Even worse is when the resistance at the top begins to 
contaminate the entire process of gathering information and 
having a deterrent effect on people at lower levels in terms of 
what they will offer up because then you are not even getting 
the science or in the intelligence community, analog 
intelligence, coming up to the higher levels.
    What happens is the policy begins to influence the way it 
is gathered, analyzed and presented, and that pushes out and 
down and dangerously insulates the agency at all its levels 
from making good decisions.
    So when you were talking about the ``Julie-proofing,'' you 
explained that people below Julie MacDonald would provide or 
present or include criteria on things and considerations that 
they thought she was interested in, rather than the science. I 
am just fascinated by that as a kind of guide for us on this 
danger.
    Can you be a little more specific? What is an example? Give 
me a couple examples, if you can, of a Julie MacDonald criteria 
that somebody would include, and what is the kind of science 
criteria that they might keep out in favor of that Julie 
criteria?
    Ms. Nazzaro. Actually, why don't I have the staff who 
actually did the interviews of some of these people come up----
    Mr. Sarbanes. Yes.
    Ms. Nazzaro.--because this issue came up both during 
interviews we did with some of the Service biologists, as well 
as during surveys we did.
    What they were doing was anticipating what kind of criteria 
she would be looking for to support their decisions and then 
they were writing their decisions based on this anticipation, 
knowing that they wanted to get these things approved through 
her.
    I have Jeff Malcolm with me, who is the Assistant Director 
responsible for this engagement, and I will have him directly 
respond to your question if you please.
    Mr. Sarbanes. Mr. Chairman, I assume that is fine that we 
can hear from Mr. Malcolm? Yes.
    Mr. Malcolm. My name is Jeff Malcolm, Assistant Director 
with GAO's Natural Resource and Environment Team.
    There were a number of policies we discussed, informal 
policies, and definitions of some items that weren't 
particularly clear in the Act. ``Occupied at the time of 
listing'' is one of the examples that we used, so in 
designating critical habitat there has been a lot of discussion 
about what that phrase actually means.
    In some cases species were listed very early in the Act, 
let us say in the 1970s, that still don't have a critical 
habitat designated yet, so doing that today there was a large 
debate over what occupied at the time of listing meant. Was 
that the occupied territory when it was listed in the 1970s?
    Julie had some interpretations on how that should be 
implemented, in some cases limiting it to a specific timeframe 
around the listing decision so that influenced decisions, so 
they would put information forward only talking about occupied 
habitat specifically during a specific timeframe based on 
policies and formal guidance that she had provided.
    Mr. Sarbanes. So in other words, she had kind of made it 
clear what her interpretation was and so then they designed 
their analysis and presentation of the information around that 
particular interpretation----
    Mr. Malcolm. Right.
    Mr. Sarbanes.--to get it through, basically?
    Mr. Malcolm. Right. There were a couple different things. 
In some cases we heard that people wrote two different 
decisions. I mean, they would have one in their pocket in case 
the other one didn't go through. Then they would have the one 
that they thought would more likely go through. In other cases 
it was just write the other decision the first time and send 
that forward.
    Ms. Nazzaro. I think you raised two issues. One is there 
are opportunities where you would make a decision based on a 
policy call, and there are times when that is appropriate, but 
what we are asking for is transparency in the process.
    The other issue that you are raising is the fact that the 
guidance is not clear. We talked about the fact that the last 
time formal guidance was written as far as the 90-day petition 
process was back in 1996. In 2004, the courts struck down 
various aspects of that both on merit, as well as on formality, 
if you will.
    And so what we are hearing from a lot of the scientists is 
there are nebulous terms. They don't know what it means. You 
know, people have the opportunity to interpret it as they see 
in this case. It appears that she had different definitions for 
things.
    What we are asking the Service to do is to finalize this 
draft guidance that has been in draft now for over eight years 
I believe in various forms. It is time to get something out 
there so that the Service biologists know what they are 
supposed to be using and it is transparent to the general 
public.
    Mr. Sarbanes. I see my time is up. Mr. Chairman, we have 
reached a scary place if scientists and professionals in the 
Department have to carry around an extra version of their 
analysis in their pocket and try to gauge which version will be 
able to get past their superiors.
    I yield back.
    The Chairman [presiding]. OK. Do other Members have 
questions? Yes, sir. Mr. Wittman?
    Mr. Wittman. Thank you, Mr. Chairman. Just a question for 
Mr. Laverty.
    We have heard about polar bear populations as a worldwide 
group and then population dynamics of those polar bears within 
the United States. Can you tell us as a means to manage the 
U.S. population are you going to use the numbers or the 
population dynamics of the world as a whole?
    If so, when you do that how are you going to look at 
approaching or designating how levels are being approached for 
polar bears that are harvested or that are affected by human-
bear interactions here within the United States?
    Mr. Laverty. There are several pieces to the response to 
your question.
    Two weeks ago, I had a chance to journey to Canada with the 
Secretary and met with the Minister of the Environment in 
Canada. We talked about what we can do, jointly with the 
Canadians, in terms of U.S.-Canadian relationships and managing 
bears. The Canadians have about two-thirds of the total 
population of bears, and I believe that some of the actions 
that came out of that are the kind of things that will fit.
    The next step the Fish and Wildlife Service will be 
undertaking is the designation and delineation of critical 
habitat. That is going to start right away. I think as we begin 
to get those pieces together, continuing to look at how we can 
gather more information and knowledge about bears and bear 
populations, bears' behavior, adaptability, those are all 
pieces that come together as we continue to move ahead on how 
to protect and conserve the bear.
    Mr. Wittman. Mr. Chair, one more question. I am just 
curious.
    Has the Department requested funding to implement the U.S.-
Russia Polar Bear Treaty? If so, what are the extent of 
resources that are needed in order to implement that?
    Mr. Laverty. Congressman, I am not sure. I will follow up 
with that one.
    The Chairman. The Chair wishes to apologize to the 
gentlelady from Guam for failing to recognize her in proper 
order.
    And now the gentlelady from Guam, our distinguished 
Subcommittee Chair on Fish and Wildlife, is recognized for 
whatever time she desires.
    Ms. Bordallo. Thank you. Thank you very much, Mr. Chairman. 
I won't take up too much time. I did come in late. The 
Subcommittee on Insular Affairs also has a hearing this 
morning.
    I hope these questions haven't been asked, but I would like 
to hear them again if they have. To you, Ms. Nazzaro. Did the 
Service follow a consistent process across the eight regions in 
selecting the eight MacDonald ESA decisions for further review?
    Ms. Nazzaro. Our conclusion is that they generally followed 
it because they used the same criteria. However, the process 
that they used did vary slightly by region. There was a 
telephone conversation from Director Hall to the regional 
directors instructing them basically to revisit issues, 
decisions that Julie MacDonald had been involved in.
    How they came up with those is where there was a slight 
variation, and some of it had to do with the workload. A region 
that did not have many decisions it may have been readily 
available, but the regional director would have known what 
decisions to include. Others did involve lower level staff so, 
like I say, it varied slightly, but generally they all used the 
same criteria.
    Ms. Bordallo. A follow-up question then. Overall in what 
ways can the decision-making process be improved in your 
opinion?
    Ms. Nazzaro. I think some of the issues that we raised with 
Representative Sarbanes' questions. We do recognize the 
difficult task that these officials are asked to do.
    A lot of times there is not a lot of information on the 
species or the habitat. You can reach different conclusions 
with the information. We have also talked about how vague some 
of the guidance is and that there is a need to redo it.
    We really are looking for an environment where we have a 
trust that the decisions that are being made are the right 
decisions, and we would view certainly having guidance that is 
very specific is useful for the Service biologists and then is 
transparent to the general public.
    You know, for example, we talked about the recovery plans, 
not using the recovery plans as criteria for delisting. Well, 
the recovery plans go through a public scrutiny process. The 
general public thinks that is the criteria being used, and then 
they find out the Service used other criteria and it just 
raises questions.
    Again, it is the trust of the decision makers. Let us make 
the process transparent. Let us make it clear and very 
straightforward, and I think it would minimize a lot of these 
allegations and improve communication.
    Ms. Bordallo. Are you beginning to overturn or restructure 
this decision-making process currently? Is it ongoing now? Have 
you begun to do the work now? How long until you think you will 
have everything in the right place?
    Mr. Laverty. If I could perhaps respond?
    Ms. Bordallo. Yes.
    Mr. Laverty. The Service has, in fact, moved ahead on some 
of the recommendations that came from the GAO report and 
recommendations as it relates to the findings in the recovery 
piece. We are working on the guidance, and that should be out 
fairly quickly.
    Ms. Bordallo. Good. The other question I have is for Mr. 
Laverty. Why does it take the Service an average of two and a 
half years to respond to a 90-day petition?
    Mr. Laverty. I will try. I have been in the job for a 
little over 180 days, but let me tell you what I have learned.
    The bear is a good example, the polar bear, the incredible 
amount of information and science that has to come together to 
make those decisions. Some of them are fairly straightforward. 
Some are fairly simple. Others I think are extremely complex, 
and they require not only gathering science, but then the 
scientists in terms of their peer review. That takes times.
    Just as we went through the polar bear, we had peer review 
that took time. Then we put that out for comment, so it does 
take time to do that.
    Ms. Bordallo. Thank you, Mr. Chairman. I think that answers 
my questions. Thank you.
    The Chairman. Thank you.
    The gentleman from Washington, Mr. Inslee?
    Mr. Inslee. Thank you, Mr. Chair, for indulging me. A 
previous question prodded me.
    Mr. Laverty, you mentioned you had gone to Canada. Did I 
hear accurately that in Canada you told Canadian media that you 
thought the Congress should amend the law so that bears could 
be shot, polar bears could be shot in Canada and imported into 
the United States?
    Mr. Laverty. I don't believe I said that, sir.
    Mr. Inslee. I am sorry?
    Mr. Laverty. I don't believe I said that.
    Mr. Inslee. I appreciate that. We just had received reports 
of that. Thanks for clarifying that.
    I should give you a chance to make sure. Do you want to 
clarify what you did say?
    Mr. Laverty. I would like to, yes.
    Mr. Inslee. Go ahead. I am sorry.
    Mr. Laverty. Once the bears are listed under the ESA as 
threatened it becomes a depleted species under the Marine 
Mammal Protection Act, and once it is listed as a depleted 
species under the Marine Mammal Protection Act you can no 
longer bring those animals into the States.
    To make any adjustments it would require an Act of the 
Congress to amend the Marine Mammal Protection Act to permit 
that import of those trophy or species taken in Alaska.
    Mr. Inslee. I am reading a CBC news report, May 16, 2008. 
It is talking about the fact that, as you have indicated, the 
current law would say they are depleted and not subject to 
importation.
    It reads, ``But Lyle Laverty, the U.S. Assistant Secretary 
of the Interior for Fish and Wildlife and Parks, told CBC News 
that there is some hope that an exception could be made for 
polar bear trophies, even though polar bears are now a 
threatened species. ``What we are going to have to do is to 
work with Congress,'' Laverty said Thursday. ``I don't want to 
say it is simple, but with just a little amendment to the 
Marine Mammal Protection Act, Congress can make a provision 
that would permit the importation of a trophy from Canada.''
    That sounds to me like you were saying that there should be 
a little amendment to the Marine Mammal Protection Act that 
would allow bears to be shot in Canada that are now listed as 
threatened and imported into the United States. Am I misreading 
that, or is that a misquote?
    Mr. Laverty. I can tell you the essence of the 
conversation. It was in fact she asked how could bears that 
were taken in Canada come into the States, and I was very 
forthright, and told her that it would take a change in the 
Marine Mammal Protection Act.
    That certainly becomes the role of the Congress. If that 
becomes an action that you would like to take that certainly is 
the prerogative of the Congress.
    Mr. Inslee. This news report----
    Mr. Laverty. Just a second.
    Mr. Inslee. I am sorry. Go ahead. Go ahead.
    Mr. Laverty. If I could just close up on that, what becomes 
important is that harvesting of bears in Canada is under a 
very, very sustained and managed process, and I believe that 
the action to do that would not be a threat to the bear. We 
could not find that harvesting for either subsistence or trophy 
hunting is, in fact, a perceived threat to the bear.
    Mr. Inslee. So is this article inaccurate when it said that 
you hoped such an exception could be made? Do you hope that 
such an exception can be made?
    Mr. Laverty. You know, I guess I would bring it back to 
you.
    I think that the fact that people have been able to bring 
in species is an important part to the Canadian economy, and if 
that fits into the scheme of things and there is not a threat 
to the bear then I would say it is worthy of conversation.
    Mr. Inslee. So do you hope there is an exception or not?
    Mr. Laverty. I would say yes.
    Mr. Inslee. Pardon?
    Mr. Laverty. Yes.
    Mr. Inslee. So the Assistant Secretary in charge of marine 
mammal protection who just listed the bear as a threatened 
species hopes it will be allowed to be shot in Canada and 
brought home. Is that right?
    Mr. Laverty. I would say that given the fact that 
sustainable harvesting of bears in Canada is not a threat to 
the species, it is an OK thing to do.
    Mr. Inslee. Well, I think that your hopes in that regard--I 
am not against hope. I am all for hope, but your hopes in that 
regard are consistent with the failure of the Administration to 
do anything as a result of this listing, which is my concern. A 
listing that is just a listing, without action, is just a piece 
of paper.
    Now, you have mentioned that you are going to go and start 
working on a critical habitat designation for the polar bears, 
but we all know what the critical habitat is. It is the ice, 
and if the ice is gone the platform that supports the bears' 
survival will be gone.
    This Administration has concluded that the ice is likely to 
be gone as a result of global warming, so isn't it true that we 
already know what the critical habitat is, we already know that 
global warming is causing it to disappear, we already know that 
the Bush Administration agrees with that, contrary to the 
comments of some of my colleagues across the aisle?
    Their own party's President has recognized what the 
critical habitat is, and the fact is that the Bush 
Administration is not doing anything significant to reduce that 
threat. Isn't that a pretty fair statement?
    Mr. Laverty. I guess I would say not necessarily so. I 
think the fact that we have raised the awareness of the 
importance of dealing with climate change is absolutely 
fundamental to engaging in conversations.
    If we are going to solve this problem, it is a global issue 
and you cannot just look at the issues in dealing with the 
United States' emissions without bringing into the context all 
the rest of the emissions that are taking place that are 
impacting the bear.
    You cannot tell me that there are any emissions that come 
directly from the United States that impact the specific site 
for the bear.
    Mr. Inslee. I can't tell you which molecule of DDT would 
have killed which eagle either or which Al-Qaeda terrorist may 
threaten us.
    Mr. Laverty. Precisely.
    Mr. Inslee. But when the Federal government refuses to act 
to a known threat, that is irresponsible and against the law of 
the Endangered Species Act.
    What you have said, that you are satisfied that by this 
listing you have raised the awareness, the consciousness of the 
community, that is great, but a fire department that simply 
hollers ``Fire!'' and raises the awareness and does not get a 
ladder, and does not get a hose, and does not get the engine 
out of the fire shop, is not doing its job.
    I just don't believe, under any stretch of the imagination, 
this Agency is doing its job to respond to this listing, which 
is to do something about the threat. You know what the threat 
is. You know what it is going to do to the polar bears, but 
this Administration refuses to act.
    I think it is sad it is going to take a new President. I 
really wish that we had an epiphany from this President. It is 
apparent to me from your testimony we haven't got one, but we 
are going to have to do some really fast work in January. You 
can respond if you would like.
    Mr. Laverty. No, sir.
    The Chairman. The gentleman from Oregon, Mr. DeFazio, is 
recognized.
    Mr. DeFazio. Thank you, Mr. Chairman.
    Ms. Nazzaro, on the question about the decisions that we 
visited last year in the hearing by Ms. MacDonald and those 
decisions that were influenced or corrupted by her work, one of 
the things that was done to clean up the Agency was to set up a 
conduct accountability board, as I understand it.
    It is my understanding that the board can only review 
matters referred to it by Ms. Scarlett, who we took testimony 
from last year, and the Chief of Staff, Brian Waidmann. I am 
not certain what their knowledge of or involvement in some of 
Ms. MacDonald's work was.
    I know that apparently Mr. Waidmann at least signed off on 
some of those and approved some of those decisions which had 
been influenced by her. Have you interviewed those two 
individuals?
    Ms. Nazzaro. We did not interview either of them, and Ms. 
Scarlett's name has not come up. Again, our intention in 
raising these was just that there was we felt a lost 
opportunity, if you will.
    Mr. DeFazio. Why haven't you interviewed Mr. Waidmann then 
since he signed off on some of these faulty decisions?
    Ms. Nazzaro. As I said, we weren't there to try to 
corroborate or to get the extent. You also have to realize the 
amount of time that we had to do these engagements. We didn't 
start this until late last year and so it was a relatively 
short timeframe.
    We tried to gather as much information as we could to raise 
some of the issues, and what we are saying is that it appears 
that there was a lost opportunity. The Agency recognized there 
had been a problem with Ms. MacDonald. They were revisiting 
some of those decisions.
    We felt if they had cast a broader net maybe there were 
others that they would have wanted to revisit as well. We are 
listing them as potential, but we have not verified or 
validated the extent of their involvement.
    Mr. DeFazio. OK. I mean, wouldn't it be useful to sit down 
with Mr. Waidmann since he was in such a key position and 
discuss?
    I mean, since now he is one of the two people who can refer 
matters to the ethics review board, wouldn't it be useful to 
know what his role and knowledge of those decisions was at the 
time he approved them?
    Ms. Nazzaro. No. I certainly agree that that is a next step 
that would come after what we have----
    Mr. DeFazio. OK. So have you asked to interview him?
    Ms. Nazzaro. We have not yet, no.
    Mr. DeFazio. OK.
    Ms. Nazzaro. It was not something the Committee asked us to 
do.
    Mr. DeFazio. But you intend to do that?
    Ms. Nazzaro. If the Committee asked us. As you know, GAO 
works basically at the request of Congress so if we are asked 
to do that we certainly could do that.
    Mr. DeFazio. OK. Thank you.
    OK. I am going to go back to my more parochial issue here 
because I don't think that we quite got an answer, Mr. 
Lohoefener. Sorry, sir. People have trouble with my name too.
    What I was trying to say was that basically, as I read your 
final recovery plan, that it really seems to me substantially 
comparable to Option 7 back in the FEMAT, and I don't know if 
you are familiar with Option 7, but Option 7 at least in my 
layman's reading of that, and I will certainly ask Dr. Franklin 
about this later, but I did have a brief conversation with him 
this morning where I think he might confirm that we are 
revisiting Option 7, and that had a very low probability of 
recovery, Option 7 back then 20 years ago.
    I guess my question is why we think basically reducing 
habitat in much the way that was recommended in Option 7, which 
was evaluated back then to not have a high probability, having 
the second lowest out of the 10 options to leading to recovery, 
why we are going there now when it was rejected 20 years ago?
    Mr. Lohoefener. Thank you, Congressman. I have the 
advantage. I can address you as Mr. Congressman, where you have 
to pronounce my last name, so I appreciate that.
    I do not know Option 7 so I can't speak to that directly. I 
can tell you that the recovery plan we have in our hands today 
is the result of 18 years, basically, of hard work by many 
individuals to recover the owl--specifically over the last two 
years, 12 peer reviews, a long, contracted peer review, five 
months of public comment, and over 80,000 comments received.
    The recovery team that was convened and the recovery team 
that finalized the plan believed that the habitat that is 
identified in the plan, if all the recovery actions are taken 
and if the recovery action is successful, will be sufficient to 
recover the owl over the next 30 years.
    Mr. DeFazio. But we talked previously, and you have 
received a critical report. You say you were working to address 
some of those concerns from the draft critical peer review, but 
the question is what will you do to accommodate other concerns 
that were raised at that time or concerns that are being raised 
now about your final recovery plan?
    Mr. Lohoefener. A final recovery plan is a guidance 
document--it is not regulation--which means we can take 
comments on the guidance document any time, and we are happy to 
do so.
    I will convene an oversight group made up of state, Federal 
and other interested private parties, whatever, to help guide 
and implement the recovery plan. If at any time these comments 
rise to the occasion of needing adaptive management of the 
recovery plan we can do that, and if that adaptive management 
warrants public comment we can put the amendment back out for 
public comment and will do that.
    Mr. DeFazio. OK. Just to note, it does say on page 74 of 
the plan that the MOCA--I mean, I hate all these acronyms, but 
anyway, the MOCA network--identified in this recovery plan most 
closely resembles Option 7 and the 20 pair system described in 
Noon & McKelvey, 1996.
    Again, and I guess I will be asking Dr. Franklin, why we 
would think today that with a species in decline and a plan 
that was rejected back then, we would be going back and 
essentially implementing something that had a lower 
probability. But again, I will have to ask Dr. Franklin.
    One other, and you may not be able to address this, and 
this may be BLM, but as I understand the final recovery plan--
at least you can address this part--it is predicated to some 
great extent upon the ongoing implementation of the Northwest 
Forest Plan. Is that correct?
    Mr. Lohoefener. The Northwest Forest Plan, like the IST 
report, like the 1992 draft recovery plan, all played an 
important part in the documents in the underlying information 
that was used in the original draft of the recovery plan.
    Mr. DeFazio. Right, but here is where I am getting into 
this sort of circular problem. You have a new final recovery 
plan. It is substantially based in looking at ongoing 
implementation of the Northwest Forest Plan, yet the BLM is 
proposing to substantially revise the Northwest Forest Plan.
    So how do these things interrelate? I mean, should they 
revisit their whopper to incorporate basically some of the 
assumptions and concerns that the final recovery plan is based 
on, which is the Northwest Forest Plan, or should you revisit 
your final recovery plan given the fact that they are proposing 
to substantially change the Northwest Forest Plan and see what 
impact that would have on your final recovery plan? How do we 
get out of this little loop here?
    Mr. Lohoefener. Thank you, Congressman. I won't begin to 
address the land management issues that the Bureau of Land 
Management has to contend with out there. As you know, managing 
public lands under a multiple use doctrine is an incredibly 
complex job, and I am certainly not the person to speak to 
that.
    I would go back to my answer I gave you a while ago though 
and say the forest plan addressed the needs of over 100 species 
and were not specific to the spotted owl. The final recovery 
plan is specific to the spotted owl, and we worked very 
closely.
    In fact, the help that BLM has given over the last three 
years as we developed the recovery plan can't be acknowledged 
enough in my opinion, so I am very confident that the land 
management that BLM will take on the land will work to recover 
the spotted owl.
    Mr. DeFazio. OK. So eliminating habitat and old growth will 
help with the recovery?
    Mr. Lohoefener. I am sorry, Congressman. Would you restate 
that?
    Mr. DeFazio. Their whopper plan is substantially based on 
substantial harvest of remaining old growth and so you are 
thinking that harvesting remaining old growth habitat will help 
with the recovery?
    Mr. Lohoefener. Again, I won't speak to the land management 
prerogatives of the Bureau of Land Management, but again I will 
reiterate that I am confident that the Bureau of Land 
Management's management, if successful, of the spotted owl will 
lead to the recovery of the owl.
    Mr. DeFazio. OK. Mr. Chairman, I know I am over time, but 
there is a BLM person here too. Perhaps he could address this.
    I just see we are getting into this little circle here 
where you are making assumptions in the recovery plan which are 
going to be contradicted by the actions of the BLM. As I 
expressed earlier, I am very concerned that we are just going 
to end up with a total injunction and an end to what is already 
an anemic level of Federal timber harvest.
    Perhaps the BLM witness, and please identify yourself. I am 
over time, so if you could address that briefly? I know it is a 
complicated question.
    Mr. Shepard. It is complicated.
    Mr. DeFazio. Just for the record identify yourself.
    Mr. Shepard. Ed Shepard. I am the BLM State Director for 
the states of Oregon and Washington.
    You know, it is very complicated, but we have worked very 
closely. Our biologists have worked very closely with them. 
Under the plan revisions, we will be harvesting some old 
growth. We will also be protecting a considerable amount of old 
growth and growing some old growth.
    Based on the recent recovery plan, we know that we have 
some changes that we have to make in our plans to bring that 
into compliance.
    Mr. DeFazio. OK. All right. When will you be undertaking to 
make those changes?
    Mr. Shepard. We are doing it right now.
    Mr. DeFazio. OK. So what is the time period?
    Mr. Shepard. Well, we expect that we are going to have the 
final out this fall.
    Mr. DeFazio. OK. All right. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. The gentleman from Texas, Mr. Gohmert?
    Mr. Gohmert. Thank you, Mr. Chairman. I am not going to 
need 11 minutes to make my comments and address my concern.
    Earlier, a couple of speakers ago, we heard a recitation of 
so-called facts. We know that this is the case. We know that 
global warming is threatening polar bears. If we were back in 
my old courtroom, then I would have had to sustain an objection 
to someone assuming facts that are not in evidence because we 
don't know all of those things.
    It just seems like the U.S. Government may be the only 
place where we take a look and we see that the facts are, as we 
have already heard, that polar bears have gone from 10,000 to 
12,000 in number to 25,000 in number, so that makes them 
threatened. I mean, what other government would make that 
analysis and come to that conclusion?
    We are told that CO2 emissions are going to 
destroy the planet. Mr. Chairman, it seems like the worst 
source of CO2 emissions seems to be the Floor of the 
House of Representatives. Maybe we do need to put more strict 
controls on that.
    But I am concerned about the premise of the hearing. It is 
deeply troubling. The premise seems to be that there is a 
problem in having political appointees who are accountable to 
the taxpayer and who are put in place by the elected head of 
the United States Government; that there is somehow something 
wrong with having that person oversee and supervise the work of 
career employees who are not directly accountable to the 
taxpayer.
    The fact of the matter is the political appointees from 
Secretary Babbitt on down oversaw the work of scientists during 
the Clinton Administration, just as political appointees do in 
the current Administration.
    I would also remind what I have read is that the Office of 
Inspector General concluded that in the case of Julie 
MacDonald, ``We discovered no illegal activity on her part,'' 
that there was no case presented that she ``harassed, bullied 
and insulted Fish and Wildlife or FWS employees,'' so we seem 
to be making some false assumptions even for the premise of the 
hearing.
    But when an Assistant Secretary weighs in on a decision it 
means he or she is doing his or her job. Career biologists in 
Fish and Wildlife Service are human beings. Like anyone else, 
they have their biases, and on occasion they may ignore valid 
policy objectives. This is where legitimate oversight by 
supervisors comes into play. Someone has to do quality control, 
especially when there are problems with bias, even among Fish 
and Wildlife Service employees.
    What we seem to be hearing from the Majority side of the 
aisle today is that we should cede control to unelected career 
government bureaucrats who are also prone to make mistakes and 
who can ignore valid management objectives the Administration 
or Congress might wish to implement.
    But both career bureaucrats and Presidential appointees 
simply need oversight, and that is why I have appreciated the 
oversight hearings the Chairman has had, but to turn over every 
four to eight years at the top of these massive agencies the 
control is not a bad thing per se. The only way the system of 
appointees every four to eight years with new Administration is 
a bad thing is if we don't trust the majority of American 
voters.
    We are told by polls currently that they expect the 
majority of voters in the United States to elect a Democrat as 
President in November of this year. What the Majority of this 
Committee seems to be saying is that they want to be on record 
as saying they don't trust the judgment of those kind of people 
that would vote for a Democrat for President.
    I trust the American voter. I think they do a good job, and 
I hate to sit idly by and have the majority here insult those 
voters who may vote Democrat in the November election.
    Thank you, Mr. Chairman.
    The Chairman. The gentleman from Arizona, Mr. Grijalva?
    Mr. Grijalva. Thank you very much. I would agree with my 
colleague that there is no inherent bad thing about political 
appointees, and I am looking forward to a new crop.
    But I think those political appointees have to be guided by 
some very fundamental principles and values having to do with 
integrity, having to do with transparency and having to do with 
the fact that the public's right to know on how decisions are 
being made. I think once we follow those rules we wouldn't be 
dealing with the situation.
    I want to thank the Chairman. A year ago we had a hearing 
based on the Inspector General's report dealing with 
manipulation of scientific decisions on the Endangered Species 
Act. It has been a year. Ms. MacDonald has resigned. Eight 
decisions--maybe it should have been more--are being reviewed.
    I think, unfortunately, the damage has been done. I say 
that because the greatest allies that endangered species have 
under the Act is science. That is the greatest ally, and the 
route to recovery is guided by science and guided by the Act 
itself. Once that gets manipulated and once that begins to be 
part of the political decision and not the scientific decision-
making scheme then all things are lost.
    So when we talk about the wolverine, the red nut bird, the 
gray wolf, the Mexican wolf, the pygmy owl, on and on and on, 
the jaguar, we have jeopardized them because now we have 
allowed a different culture to run it.
    And so, my question is a very general one. Correct me if I 
am wrong. I think the change that needs to happen is not with 
the Act itself, but with the Administration and the 
implementation of the Act. I say that because I think we have 
institutionalized now a culture that is about pleasing a 
political outcome and not dealing with the reality of facts and 
science. That has been institutionalized with regard to the 
Endangered Species Act, and that change has to be fundamental 
and thorough in the near future.
    And so, my question is am I wrong, Mr. Laverty, if I may? 
Am I wrong in assuming that we are not really going to make any 
progress until that massive institutional change and culture is 
changed?
    I really think what we are talking about today--process, 
specifics--is good and healthy. I think the overall culture 
needs to be changed tremendously with regard to the application 
of the Act. Am I wrong in that assumption or in that conclusion 
to be more exact?
    Mr. Laverty. Mr. Grijalva, I believe--and I can share this 
with absolute confidence--that if you were to ask any scientist 
in the Fish and Wildlife Service or the United States 
Geological Service about the integrity of science you would 
find that today the answer would be that they believe the 
integrity of science is whole.
    I believe I can share that with you because I have 
established in my own set of principles and values 
conversations with Director Dale Hall and his folks that I 
value the integrity of science, and I am going to do, as I 
shared with you in my earlier testimony, all I can to ensure 
the integrity of science.
    Now, as I pointed out, I think it is very, very important 
to be able to have questions about clarity of science. That 
should be OK. That should not be viewed as a threat. That 
should not be viewed as a negative thing. It should be 
absolutely important to make sure that when we come together 
with the best science that that stands the test of integrity.
    The fact that you question me is good. We need to be able 
to do that, and I think that same thing is true for science. I 
believe that the actions that have been taken, as I mentioned, 
in the short time that I have been here--we have four listings 
warranted, two not warranted. Those are based on absolute 
integrity of science. We have come together with nine 
substantial 90-day findings, and I would venture to say that if 
you ask anyone to come and look at that it would be based 
absolutely on science.
    I want to go back and clarify perhaps some of the points 
that were made regarding Brian Waidmann, Chief of Staff. Brian 
Waidmann reviews every Federal Register listing that comes out 
whether it is Fish and Wildlife Service, Park Service, USGS, 
anything.
    Brian Waidmann initials and reviews that, and I think some 
of those reviews are to make sure that we are, in fact, clear 
that the pieces all connect together. That shouldn't be again 
viewed as a negative thing, but I think it is a very important 
piece.
    One of the things, if I could just follow up while I----
    Mr. Grijalva. Well, let me go back to my original question, 
if I may.
    Mr. Laverty. Sure.
    Mr. Grijalva. My earlier question. When I talked about the 
scientific code of conduct that was implemented by Hall, it 
doesn't apply to yourself or anybody else in your office, and 
the question I asked then, shouldn't it so that we have a level 
of consistency on the integrity question?
    Mr. Laverty. Mr. Grijalva, I would be happy to share with 
you the letter that I sent to the Department folks, to both 
Fish and Wildlife Service and the Park Service, that 
established my personal code of conduct and how I was going to 
operate, how I was going to establish that set of principles 
for my staff.
    I believe that we have a very, very solid platform to work. 
We can assure that.
    Mr. Grijalva. My time is up, Mr. Secretary, and I 
appreciate your honesty and your response, and I yield back.
    Mr. Laverty. Thank you.
    The Chairman. The gentlelady from California, Ms. 
Napolitano?
    Mrs. Napolitano. Thank you, Mr. Chair.
    I would like to talk to Mr. Laverty in regard to the 
petitioning under the ESA. I guess many things have not been 
corrected, and apparently last week the long-fin smelt in the 
California Bay-Delta was deemed substantial nine months after 
it was petitioned.
    What assurances do we in this Subcommittee have that the 
status review for the smelt will now proceed efficiently and, 
moreover, be based on the best available science, and will it 
be completed in the next 12 months, which then goes to 
improving the efficiency of the 90-day petition, and how will 
Fish and Wildlife ensure the new delta smelt stands up to court 
scrutiny, the buyout?
    Mr. Laverty. Thank you for that question. I actually had a 
chance to spend some time with Secretary Cristman and Regional 
Manager Steve Thompson talking about the delta smelt and how 
that science and the biological opinions come together.
    One of the things that has to happen is we have to complete 
that biological opinion, and I understand that part of that now 
is with the Bureau of Reclamation. I just found that out this 
morning, so I will follow up on that on the delta smelt.
    Mrs. Napolitano. How long will that take?
    Mr. Laverty. The long-fin. Was that the one that we just 
listed? In a couple months I think we are going to have that 
one out.
    Mrs. Napolitano. Are we sure it is a couple months and not 
a year or more?
    Mr. Laverty. Absolutely. I can assure you. I am getting 
poked. Yes.
    Mrs. Napolitano. May I ask that the Committee be given the 
information as soon as possible?
    Mr. Laverty. Yes, ma'am.
    Mrs. Napolitano. And if you will proceed with the rest of 
the question about the 90-day approval of the implementation?
    I am sorry. Should we be concerned with the delays on other 
decisions, such as the 12-month status reviews in Section 7 
consultations--listing and delisting and others?
    Mr. Laverty. I believe part of our conversation earlier 
focused on the findings from the GAO in terms of guidance to 
the field on the 90-day listing, and I believe we have the 
mechanism in place and that is currently under review. We 
should have that out fairly quickly.
    Mrs. Napolitano. What about the new delta smelt biological 
opinion? Will it stand up to court scrutiny?
    Mr. Laverty. I can tell you it will be based on the best 
available science.
    Mrs. Napolitano. OK. Ms. Nazzaro, on page 22 of your report 
it says: ``Furthermore, Service officials also noted recovery 
plans are fluid documents, and the plan's respective criteria 
can be updated as new threat information about a particular 
species becomes available.''
    Were you able to check the veracity of the Service's 
statement? Is that true that the recovery plans are regularly 
revised?
    Mr. Malcolm. We can't say specifically if they were 
regularly revised, but a number of the species we have examples 
of in our report the recovery plans had been updated, so it can 
happen.
    Again, we also note that a lot of the activity at least on 
the listing side of the house is litigation driven, so there 
obviously is a prioritization process that happens. They do 
have authority to revise the plans. It may not happen----
    Mrs. Napolitano. Why the litigation? Based on what?
    Mr. Malcolm. The example you just used on a late 90-day 
finding. So if the finding is too late there could be 
litigation brought to say----
    Mrs. Napolitano. Which brings it back to are we ensuring 
that we are going to expedite some of those petitions?
    Mr. Malcolm. Right. Yes.
    Mrs. Napolitano. Avoid litigation.
    Mr. Malcolm. Well, some of the litigation involved is over 
missed deadlines, but again there are so many species and so 
many decisions and not listing/delisting, but critical habitat 
and recovery plans and all those types of actions, so doing 
everything for every single species on time obviously would be 
challenging for the Department.
    Mrs. Napolitano. Well, according to the review of the 
recovery plans in the Fish and Wildlife database, it shows that 
only 22 recovery plans have been formally revised in the last 
12 years and 30 in the last 20, and of the 22 in the last 12 
only 13 have been formally completed and made final. The 
average length is 17 years.
    Ms. Nazzaro. Certainly one thing that we did hear was that 
litigation does take a lot of time and so a lot of the other 
priorities that the Service would set, they are distracted from 
that because of litigation.
    Mrs. Napolitano. But if you have litigation that is causing 
the delay because it is not done--how would I say--
expeditiously, within the period required, wouldn't that solve 
some of the problems?
    Ms. Nazzaro. What we are hoping is we have not reviewed the 
draft guidance that Mr. Laverty discusses, but we anticipate 
that once that guidance gets issued it is going to clarify how 
the Service biologists go about reviewing these 90-day 
petitions, and it would certainly expedite the process.
    Mrs. Napolitano. Could you tell me how many of your 
revision plans or actually--I am sorry. I am getting my 
thoughts together. Of the litigated ones are based on late 
filings or extended filings? Is there any amount, percentage?
    Mr. Laverty. I am sorry. I don't know what that answer 
would be. It would be substantial.
    Mrs. Napolitano. Would you find that out for us and let us 
know, because then we can understand that maybe this is part of 
the answer.
    Mr. Laverty. Yes, ma'am.
    Mrs. Napolitano. Thank you, Mr. Chair.
    The Chairman. The gentleman from California, Mr. Costa?
    Mr. Costa. Thank you very much, Mr. Chairman, for this 
important and timely hearing.
    I have a specific question that follows on the one 
Chairwoman Napolitano asked with regard to the Sacramento-San 
Joaquin River Delta system, and then I have a more general 
question as it relates to the Endangered Species Act, which is 
the subject that we are hearing today.
    As it relates to the specific question involving the issues 
of listed species in the Sacramento-San Joaquin Delta, which is 
the largest delta region on the West Coast that has numerous 
problems I would argue as it relates to the multi-purposes and 
the multi-facets of that delta river system that provides not 
only transportation, but a source of water, a source of fishery 
and critical habitat for the West Coast and for California 
particularly.
    As it relates to the smelt issue that Congresswoman 
Napolitano was talking about, when these various scientific 
efforts are being pursued to deal with the various causations 
how are we attempting to weigh the factors, the other factors 
that are causing the degradation of the fisheries--not only the 
smelt, but the salmon and the other?
    When we try to weigh the factors in of invasive species, 
when we try to weigh the factors of the impacts of tremendous 
urbanization that has taken place over the last two decades in 
the area, when we try to weigh the fact that there is over 
1,600 pumps that are within the region that are unscreened--we 
have pumps throughout the country that are screened--and that 
we deal with diversions of water upstream as well besides the 
exportation, how do you weigh all those factors in?
    Mr. Laverty. Mr. Costa, I believe the question you framed 
captures the complexity of the challenges that not only the 
Fish and Wildlife Service faces as we look at the recovery of 
species, but it capitalizes and captures the essence of how do 
we work with multiple jurisdictions to deal with these kinds of 
issues? I know from my conversations with resource 
professionals on the ground that this is an incredibly vexing 
problem for them.
    I would have to say there is not any magic that is just 
going to pop out and we are going to find an instant situation. 
The delta is a classic example I think of the complexities that 
we face. You know, not only is that water important for fish, 
but it is also important for the commerce and the economy of 
California.
    Finding that balance I believe is going to be our challenge 
working together, and I think that is why some of the 
conversations that we have had with the Governor's office, as 
well as with municipalities and agencies that are all impacted, 
that is where we are going to have to find that balance.
    Mr. Costa. Yes, I know, but the balance is always the 
challenge.
    Mr. Laverty. Absolutely.
    Mr. Costa. You know, I want to ask a broader question, but 
it is related to this. I mean, regardless of our philosophical 
discussions, we all agree that good science ought to apply.
    The problem is that scientists focus in their domain and 
their effort, and they have varied degrees of expertise, but 
then not withstanding the science there are always the 
tradeoffs. It is not up to the scientists necessarily to 
determine the social tradeoffs because they involve social, 
economic and other ethos that we all have that are similar and 
common and different.
    Therein lies when you set the balance of the values in 
terms of trying to strike that balance I am not so sure it is 
fair to ask the scientists to do that.
    Mr. Laverty. I would agree, and I believe that setting a 
policy call is not the role of the scientist.
    Mr. Costa. Right.
    Mr. Laverty. The scientist is to bring together the best 
available science to that policy table and then policymakers 
then weigh those tradeoffs, if you will.
    Mr. Costa. Well, then that brings me to the question, and I 
don't know if I have enough time here. With the title, ``Danger 
of Deception: Do Endangered Species Have a Chance?'', it just 
seems to me that we ought to back up a little bit and try to 
figure out when we deal with risk assessment versus risk 
management what in our day and age today is the art of the 
possible.
    I mean, I can assure you that if we didn't have the 38 
million people that live in California today, not to mention 
the other people that live in Oregon and Washington, we could 
do a whole lot to restore the environment and the riparian 
systems and everything else because we wouldn't have the 
demands that all the people place on those important resources.
    But the problem is we do have 38 million people living in 
California, and we have millions of people living in Oregon and 
Washington, and they share the same resources with all the 
other important species that we try to coexist with.
    We never, it seems to me, make an evaluation or attempt to 
try to make the judgment because before people ever set foot on 
this continent, I mean, you had species that went extinct. It 
is the natural evolution of things, but they went extinct based 
upon various climate conditions and other predatory species and 
the like.
    Now, we are the big species here, and we are very predatory 
I would argue, and therefore we impact all the other species, 
but we seem to have this notion that we can have it both ways, 
that we can turn the clock back 150 years or whatever time you 
choose when mankind wasn't impacting all the species.
    I am not so sure you can have it both ways, but I don't 
think we ever have that conversation or that intellectual 
discussion, which is what I think we ought to have in terms of 
what the art of the possible is. That was an editorial. I don't 
know. Do you folks ever have these policy discussions?
    Mr. Laverty. Every day. I don't mean to be flippant in that 
response, but that is really the fundamental issue that we face 
as we bring together the science of what we know about species 
in our environment and how do we then engage in helping make 
these critical decisions as it relates to policy calls on our 
needs as a society and how do we provide that long-term quality 
for what this country is all about.
    Mr. Costa. And it is the art of the possible. If you will, 
Mr. Chairman, give me 30 more seconds, I mean, just to add to 
this point. We have made a determination after 18 years plus of 
lawsuit on the San Joaquin River to reach an out-of-court 
settlement agreement.
    I am not going to put a value on as to whether it is good, 
bad or indifferent because everybody has a different 
perspective, but the parties, both the plaintiffs and the 
defendants, decided after 18 years they were going to quit 
suing one another to attempt to restore a species on the San 
Joaquin River on 47 miles of the river that has not flowed 
since 1964. It is a very noble experiment at a cost of 
somewhere between $300 and $600 million. We don't know what the 
cost will be.
    And so we can do a lot of things, but we also have to 
factor in what the costs and the tradeoffs are. We hope in the 
period of the 15 years during the implementation of this 
agreement that we will be successful, but we don't know that we 
will be. Yes?
    Mr. Laverty. Just perhaps one last comment. I think you 
framed it very, very well in terms of the importance of good, 
hard, quality science. That becomes the foundation for many of 
these conversations.
    That is exactly what we are trying to do is make sure that 
we have that kind of science that has that integrity that 
policymakers can understand what the tradeoffs might be.
    Mr. Costa. Thank you, Mr. Chairman.
    Mr. Laverty. Thank you for your comments.
    The Chairman. The gentleman from Texas, Mr. Gohmert?
    Mr. Gohmert. Thank you, Mr. Chairman. I think our friend, 
Mr. Costa, did a beautiful job of articulating the real balance 
necessary to have proper governance over this country.
    I was affected by my friend from California Ms. 
Napolitano's discussion about the long-finned smelt, and I 
would like to yield to get an answer to a question regarding 
this balance.
    It is my understanding that if the long-finned smelt, this 
little fish, is actually determined to be or classified as 
being an endangered species it will be necessary to hold more 
water up in the delta region, which would apparently deprive a 
lot of Southern California from much needed water.
    I am curious. In the consideration of trying to preserve 
species, which we would all like to do, should any policy 
consideration be given to the adverse effects on the humanity 
there in Southern California? I yield to the gentlelady.
    Mrs. Napolitano. Thank you for yielding. I can tell you 
there is an ongoing battle in regard to allowing water to flow 
naturally down from Northern California. This is a north/south 
issue.
    The fact that there have been lawsuits and much controversy 
over ESA and its effect on the population, let me assure you 
that both sides, no matter what, we need to ensure that we 
protect some of that. I am even discussing in some areas if 
there is endangered species why are we not having hatcheries to 
be able to ensure that the species survive? There is an issue 
there with the environmentalists, which I can understand, but I 
would rather have the DNA be a little bit watered down rather 
than lose it.
    Protection of people? It depends because I can tell you in 
some areas you can be in the lowlands and look up and there is 
a boat going by up in the upper regions. You see it up high, 
the levees. One of those earthquakes is going to come down and 
all of that land is going to be affected. Salt will be intruded 
into the drinking water. It will ruin a lot of California's 
economy. The rest of the nation is going to suffer.
    Now, do we protect? Yes, we have to protect much like we 
want to protect ourselves, the human race. There are many 
things we need to do. How we do it, working cooperatively, and 
this is what Jim was alluding to, is they decided that it is 
better to work with them because it does help the ecosystem.
    With that I would like to turn it over to Jim to finish 
that up.
    Mr. Gohmert. Well, let me reclaim my time for a moment. It 
is my understanding though, and you mentioned the allowing of 
the natural flow of water, but it is my understanding if the 
long-finned smelt were classified as endangered then it would 
probably be required to have an unnatural restraint of water in 
order to help the long-finned smelt, and it would be the 
unnatural restraint of water flow that would so adversely 
affect portions of Southern California.
    I would be glad to yield to my friend, Mr. Costa, if he has 
a comment. You really did a beautiful job of articulating the 
difficulty there.
    Mr. Costa. Well, thank you. I mean, we in California made a 
promise to Chairman Rahall a couple years ago not to bring 
California water problems to the Committee, but they are 
problems.
    Mr. Gohmert. Yes.
    Mr. Costa. I appreciate your interest. But I really think 
they are reflective of water problems that we are going to face 
around the country and around the world in the 21st Century, 
and maybe if we can do a better job in California than we have 
in terms of solving some of them maybe that will be helpful to 
other parts of the world.
    The smelt specifically that you asked the question of. If 
they are listed and there is a portion of the listing, the 
process, and that was the questions we were referring to, could 
cut back as much as an estimated 70 percent of the water supply 
to Southern California and as much to the area that I live in 
and that many of my colleagues do where we farm, so it is a 
very serious issue in terms of the ability to export water 
south of the delta.
    From a standpoint of geography and plumbing, you wouldn't 
have designed California. We have two-thirds of the population 
living where there is very little water, in Southern 
California, and their water supply comes from the Colorado 
River; it comes from the east side of the Sierra; it comes from 
the north.
    Eighty percent of the developed water resources in 
California agriculture uses. We have picked a lot of low-
hanging fruit in the last two decades to conserve water. Water 
is not cheap in California I would argue any more.
    But we have a host of competing challenges on the delta 
smelt that you made reference to. For example, striped bass are 
not native to the delta. They are an eastern fish. They were 
introduced in the 1920s as a good game fish. They are a very 
predatory fish, and they eat smelt, which is the food for the 
salmon. They also eat juvenile salmon. Up until recently 
actually we still sold striped bass stamps, fishing stamps, to 
increase the propagation of striped bass, so these are the 
internal conflicts that drive us nuts.
    Let me just close with one piece of advice when you wade 
into the water of the West. Mark Twain, I think, had it right 
over a century ago when he said, as a reporter in the West, it 
was clear to him that whiskey was made for drinking and water 
was made for fighting, and we are still fighting over those 
water resources today.
    Mr. Gohmert. OK. Thank you.
    Reclaiming my time--well, actually it has expired--if I 
could just say, we certainly want to work with all states with 
water problems, and I hope that we can also, at some point, 
have a hearing on the invasive plant species that are about to 
take over waterways all over the South. We are about to lose a 
lot of natural----
    Mr. Costa. If the gentleman would yield?
    Mr. Gohmert. Sure.
    Mr. Costa. I think invasive species, period. I would not 
limit it to plants.
    Mrs. Napolitano. Would the gentleman yield for a second?
    Mr. Gohmert. Sure.
    Mrs. Napolitano. One of the things we are battling right 
now is the quagga mussel, which is eating some of the food from 
the fish----
    Mr. Costa. Right.
    Mrs. Napolitano.--which we have yet to find the solution 
to, and I think working cooperatively we may be able to have 
the R&D to be able to at least begin to address it because that 
is clogging all your pumps. Not only that; it is taking some of 
the natural food element of a lot of the fish.
    Mr. Costa. Right.
    Mrs. Napolitano. So it is a series of things, not just one 
rather. Thank you, sir.
    Mr. Gohmert. OK. Thank you, and thank you, Mr. Chairman. It 
sounds like you have some Members who would love a hearing on 
invasive species.
    The Chairman. It sounds like it, but I think right now the 
panel needs to be relieved so I will thank the gentlemen and 
ladies that appeared before us today for your expertise and 
your patience and all your help to this Committee and say that 
you are excused. Thank you.
    The Chair will call the next panel, Panel II, composed of 
Dr. Scott D. Kraus, the Vice President of Research, New England 
Aquarium; Dr. Jerry F. Franklin, Ph.D., College of Forest 
Resources, University of Washington; Dr. Francesca T. Grifo, 
Ph.D., Senior Scientist and Director, Scientific Integrity 
Program, Union of Concerned Scientists;
    Scott Hoffman Black, the Executive Director of the Xerces 
Society for Invertebrate Conservation; David R. Parsons, a 
Science Fellow at the Rewilding Institute; and Larry L. Irwin, 
Ph.D., Principal Scientist, National Council for Air & Stream 
Improvement.
    Is everybody still here? The Chair will remind all 
witnesses we do have your prepared testimony and, without 
objection, it will be made part of the record as if actually 
read. You are encouraged to summarize your prepared testimony.
    We will begin with Dr. Kraus. Dr. Kraus, you have been 
recognized to proceed first.

      STATEMENT OF SCOTT D. KRAUS, PH.D., VICE PRESIDENT 
               OF RESEARCH, NEW ENGLAND AQUARIUM

    Mr. Kraus. Thank you, Mr. Chairman. We are going to move 
into the ocean.
    I am from the New England Aquarium. I have been running a 
research program on North Atlantic right whales for almost 30 
years, and I would like to briefly talk about those animals and 
the issues around the ship strike rule that has been proposed 
by NOAA.
    The North Atlantic right whale currently numbers less than 
400 animals, making it one of the most endangered of the large 
whales. In the western North Atlantic, they are found along the 
entire East Coast of North America. Calving occurs in the 
coastal waters of the southeastern U.S. during the winter, and 
the migratory zone is along the Mid-Atlantic. In the summer, 
spring and fall, right whales are found in the Gulf of Maine in 
several habitats.
    Historically, the species was hunted nearly to extinction, 
and despite protection for 70 years, the right whale population 
remains at very low numbers. Today, the primary reasons for 
right whale losses are accidental kills by ships and fishing 
gear.
    Since 1999, at least 30 right whales have been hit by 
ships, leaving 15 dead, four seriously injured and likely to 
die, and 11 with injuries. Another 37 right whales have been 
entangled in fishing gear, six of which were fatal, and another 
six had potentially fatal injuries. In addition to the 
documented deaths, an average of six right whales per year 
disappear from the population and are presumed dead, adding to 
the mortality rates.
    The Department of Commerce's National Marine Fisheries 
Service is the agency responsible for right whales under the 
ESA and the MMPA. The Agency is working hard with the research 
and fishing communities to solve the problem of entanglements 
in fishing gear, and more work is needed in this area.
    However, the problem of ships killing whales is well 
defined, and the Agency's proposed rule to slow ships is a 
solution that will work. There have been a number of questions 
about the science posed by the Office of Management and Budget, 
the World Shipping Council, as well as some to one of my staff 
by the Council of Economic Advisors. I would like to address 
those questions briefly.
    First, the evidence that high ship speeds kill whales. Many 
scientific studies have been done to assess the role of speed 
in ship kills of large whales and in particular for right 
whales. In my submitted testimony, I have provided the relevant 
graphs of speed versus the probability of collision, as well as 
a comprehensive list of all the scientific publications on this 
topic.
    In all cases, scientists have used existing data to model 
the probability of lethal injury to a right whale from ships 
going at different speeds. When you add them all together, the 
cumulative results of all of these studies are conclusive. No 
matter which analytical technique is applied, increased 
shipping speed carries increased risk of death and serious 
injury to all large whales.
    Questions have been raised about whether ship size matters 
to the danger posed to whales. It turns out that it doesn't 
matter very much when the difference is large. Ships are, let 
us say, somewhere between 5,000 and 50,000 dead weight tons, 
and a large whale might only be 40 dead weight tons.
    For comparison, imagine a vehicle colliding with a 
songbird. Whether the vehicle is a motorcycle or a car or a 
train, the bird will probably survive a collision of five to 10 
miles an hour. However, a collision with any of those vehicles 
at 30 miles an hour or 50 miles an hour, the bird is likely to 
die. The difference in mass doesn't matter as long as the 
vehicle is substantially larger than the bird. Only speed 
matters.
    The same principles apply to whales. Because whale to ship 
size differences are large, the severity of damage to a whale 
in the event of a collision with a ship is primarily a function 
of speed. Therefore, speed reductions will reduce the risk of 
fatal collisions between all large ships and whales.
    Now, what is the evidence that many of these different ship 
types are involved? Well, there has been a review by a couple 
of National Marine Fisheries Service scientists, and it turns 
out that just about every large ship around the world that we 
can think of in terms of types have been involved--Navy 
vessels, container, cargo ships, freighters, whale-watching 
vessels, cruise ships, Coast Guard vessels, ferries, dredges, 
et cetera. The data confirm that all types of vessels are 
involved in collisions with whales.
    What does NMFS need to carry out its mandate under the 
Endangered Species Act for right whales? They have a statutory 
obligation under the Endangered Species Act to take actions 
that enable the recovery of right whales. It needs the support 
of Congress to get this rule in place.
    NMFS also needs appropriate funding levels from Congress to 
monitor the population to determine how many animals are being 
lost to human activities, and which management measures are 
working. Failure to support NMFS' efforts is a disservice to 
the industries that are being regulated and will undermine 
their ability to ensure the survival of the North Atlantic 
right whale.
    In conclusion, fast ships kill large whales. Slowing ships 
will, one, reduce the probability of a fatality should an 
encounter occur and, two, give whales the time to evade 
oncoming vessels. Ship strikes of whales involve all ship 
types, all whale species and occur all along the East Coast.
    The National Marine Fisheries Service has taken the 
appropriate approach in using the 10 knot speed limit. This 
speed limit considers economic impact, safe navigation and 
benefit to right whales in a fair and well-researched manner.
    There is no scientific justification for further delays in 
the proposed rule to seasonally slow ships in right whale 
habitats and migratory corridors along the East Coast of the 
United States. Thank you.
    [The prepared statement of Mr. Kraus follows:]

 Statement of Scott D. Kraus, Ph.D., Vice President for Research, New 
                England Aquarium, Boston, Massachusetts

    The North Atlantic right whale currently numbers less than 400 
animals, making it one of the most endangered of the large whales. In 
the western North Atlantic, individual right have been observed from 
the Gulf of Mexico to the Gulf of St Lawrence, but most are found 
seasonally in one of five known habitats. The only calving ground is in 
the coastal waters of the southeastern U.S. during the winter months. 
The migratory corridor for all right whale mothers and calves is the 
coastal zone of the U.S. between Florida and Massachusetts. In the 
spring, aggregations of right whales are present in the Great South 
Channel (east of Cape Cod) and in Cape Cod and Massachusetts Bays. In 
the summer and fall, right whales are observed in the Bay of Fundy, 
between Maine and Nova Scotia, and in an area 50 km south of Nova 
Scotia called Roseway Basin. Aerial surveys also have recently 
discovered winter-time aggregations in the middle of the Gulf of Maine.
    Historically, this species was hunted to near extinction, and, 
despite protection for 70 years, the right whale population remains at 
very low numbers. Today, the primary reasons for the population's slow 
recovery are the accidental kills by ships and fishing gear. Since 
1999, at least 30 right whales have been hit by ships, leaving 15 dead, 
4 seriously injured and likely to die, and 11 with injuries (Table 1). 
Another 37 right whales have been entangled in fishing gear, of which 6 
were fatal, and 6 caused potentially fatal injuries. In addition to the 
documented deaths, an average of 6 animals per year (range: 1--11) have 
disappeared from the population and are presumed dead, adding to total 
mortality rates.
    Shipping and entanglement deaths are added to natural mortality, 
and several population models have shown that this population was 
declining during the 1990's (Caswell et al. 1999; Fujiwara and Caswell 
2001). Fujiwara and Caswell's projections indicated that those trends 
would drive the North Atlantic right whale to extinction in 
approximately two centuries. However, those same models suggested that 
saving just two females per year could reverse this trend. These 
circumstances confirm that this is a critical period for right whales 
and that focused and dedicated efforts will be required if we are to 
assure the recovery of the North Atlantic right whale population.
    The NOAA National Marine Fisheries Service (NMFS) requirement for 
recovery is a population increase for a period of 35 years at an 
average rate of increase equal to or greater than 2% per year. 
Preliminary analyses indicate that this group of right whales has had 
an average growth rate over the last two decades of about 1%. Recent 
calf counts have increased slightly, although increases in mortality in 
recent years may have offset those gains.
    The Department of Commerce's National Marine Fisheries Service is 
the responsible agency for right whale conservation under the ESA and 
the MMPA. The agency is working hard with the research and fishing 
communities to solve the problem of entanglements in fishing gear, and 
more work is needed in this area. However, the problem of ships killing 
whales is well-defined, and the NMFS proposal to slow ships is a 
solution that will work. There have been a number of questions about 
the science posed by the OMB, the OIRA, and the World Shipping Council, 
including questions posed directly to a colleague on my staff by the 
Council of Economic Advisors. I would like to address these questions 
briefly.
Evidence that High Ship Speeds Kills Whales
    Many scientific studies have been done to assess the role of speed 
in ship kills of large whales, and 5 studies have specifically 
evaluated this for right whales. These studies (Vanderlaan and Taggart 
2007; Pace and Silber 2005: Laist et al. 2001: Kite Powell, et al., 
2007; Vanderlaan et al., 2008) used different analytical approaches, 
but all reached the same conclusion that vessel speed plays a role in 
the level of severity of a strike. In addition, a Knowlton et al (1998) 
report titled The Hydrodynamic Effects of Large Vessels on Right 
Whales: Phase Two concluded that in none of their simulations was there 
a situation where a slower moving ship increased the risk of collision. 
A slower ship has lower hydrodynamic forces and is thus safer for a 
whale trying to take avoidance action.
    To summarize the results of all of these studies, I have provided a 
single graph from each of the four quantitative papers in the following 
pages, and offer a summary statement from many of the papers on whales 
and shipping here. The cumulative results of these multiple studies are 
conclusive--no matter which technique is applied, increased shipping 
speed carries increased risk of death and serious injury to all large 
whales.
    Laist et al., 2001 ``Collision accounts compiled here suggest that 
serious injuries to whales may occur infrequently at vessel speeds 
below 14 kn and rarely at speeds below 10 kn.''
    Jensen and Silber, 2003 ``All vessel classes are represented in our 
database, but it appears generally that relatively large and relatively 
fast moving vessels are most often involved.''
    Pace and Silber 2005 ``We found strong evidence (P=0.0025) that the 
probability of death or serious injury increases rapidly with 
increasing ship speed (Figure 1).''
    Vanderlaan and Taggart 2007. ``Notably, it is only at speeds below 
11.8 knots that the chances of lethal injury drop below 50% and above 
15 knots the chances asymptotically increase toward 100%.''
    Kite-Powell, et al., 2007 ``Model results suggest that more than 
half of right whales located in or swimming into the path of an 
oncoming ship traveling at 15 knots or more are likely to be struck 
even when they do take evasive action.''
    Vanderlaan and Taggart, 2008 ``Only the reduced vessel-speed option 
will decrease the likelihood of a lethal injury should an encounter 
occur.''
    In the following graphs, scientists have used the existing data to 
model the probability of lethal injury to a right whale from ships 
going at different speeds. In the first one, Vanderlaan and Taggart 
(2007) show that the probability of fatal injury rises rapidly after 8-
10 knots and approaches 100% above 18kts. In the second (Vanderlaan et 
al., 2008), they add the probability of a whale-ship encounter to the 
original data to show the combined likelihood of a fatal collision (in 
color, where red is bad (fatal), and blue is good (not fatal)).
[GRAPHIC] [TIFF OMITTED] T2492.046

    In the next graph, Pace and Silber (2005) modeled a slightly larger 
dataset without binning into speed categories, and obtained nearly the 
same results as Vanderlaan and Taggart (2007)(shown above). Their 
analysis shows that the probability of mortality or serious injury 
increases dramatically above 7 knots.
[GRAPHIC] [TIFF OMITTED] T2492.047

    Despite some confusion on the part of the World Shipping Council 
and the CEA, ship mass does not matter much when the difference between 
the ship and the whale is large. From a shipping perspective, most 
ships are much more massive than a whale (5000-100,000 DWT vs 40 DWT). 
As C. Taggart points out (in lit. Aug 31 2007 to S.E. Dudley OIRA) the 
situation is similar to a vehicle colliding with a song bird. Whether 
the vehicle is a motorcycle, a car, a bus, or a train, the bird will 
probably survive a collision of 5-10 miles per hour. However, in a 
collision with any of those vehicles at 20-30 miles per hour, the bird 
is highly likely to die.
    Thus mass (size) does not matter as long as the difference between 
the animal and the vehicle is large. The severity of damage to a whale 
in the event of a collision with a large vessel is primarily a function 
of speed. Therefore, regardless of ship size, speed reductions will 
reduce the risk of fatal collisions between ships and large whales.
    Note that most of the results discussed above are predicated upon 
passive whales, in other words, a whale that does not attempt to move 
out of the way of a closely approaching ship. However, Kite-Powell et 
al. (2007) analyzed close approaches (less than 500 m) of ships to 
right whales, and found that a majority of whales do attempt evasive 
actions. Although the sample size is limited, evasive actions increased 
as proximity to the ship increased. Taking whale behavior into account, 
Kite-Powell and colleagues modeled ship/whale encounters at various 
speeds and produced the following graph, which shows the probability of 
collision given different speeds and different ships. Although this 
does not predict fatal injuries, it is consistent with the previous 
models which show that the risk of collision between ships and whales 
increases with speed. These results indicate that slowing ships to a 
speed of ten knots gives whales an increasing amount of time to avoid 
collisions by taking evasive action.
[GRAPHIC] [TIFF OMITTED] T2492.048

Evidence that All Ship Types are Involved
    Jensen and Silber (2003) provide detailed information of the vessel 
types involved in strikes worldwide. ``Of the 134 cases of known vessel 
type, there are 23 reported incidents (17.1%) of Navy vessels hitting 
whales, 20 reports (14.9%) of ship strike for container/cargo ships/
freighters, 19 (14.2%) reports of ship strike for whale-watching 
vessels, and 17 reports (12.7%) for cruise ships/liners (Figure 5). 
Sixteen reports of ship strike (11.9%) are attributed to ferries. Nine 
cases of ship strike (6.7%) are reported for Coast Guard vessels and 
eight cases (6.0%) for tankers. Recreational vessels and steamships 
were each responsible for seven collisions (5.2%) in the database, 
while fishing vessels were responsible for four records (3.0%) of 
strike. One collision (0.75 %) was reported from each of the following: 
dredge boat, research vessel, pilot boat, and whaling catcher boat.''
    These data confirm that all types of vessels are involved in 
collisions with whales, although care should be taken in interpreting 
these numbers. Large ships (e.g. container ships, tankers, and cruise 
ships) may not be aware that a collision with a whale has occurred and 
thus do not report the incident. Captains of ships of all sizes are 
under no obligation to report collisions and may not do so due to 
apathy or fear of legal consequences. The high percentage of Navy and 
Coast Guard collision reports is likely due to standardized military 
and government reporting practice rather than an actual higher 
frequency of collisions relative to other ship types. Both federal 
agencies are actively involved in large whale protection programs and 
reporting struck or dead whales to the National Marine Fisheries 
Service are standard operating procedures.
Evidence that Ship Kills are Impacting All Large Whales
    NMFS has done a thorough job of keeping track of serious injury and 
mortality events (Nelson, et al. 2007). From 2001-2005, NMFS verified 
292 large whale mortalities and determined that 26 were due to 
entanglements and 27 were the result of ship strikes. The cause of 
death could not be determined for 223 (76%) of the carcasses (Nelson 
2007), since animals floating at sea are typically not retrieved for a 
necropsy (except right whales). Because of the endangered status of 
right whales, NMFS has supported the retrieval and necropsy all right 
whale carcasses when feasible. From 2001 through 2007, a total of 31 
right whale carcasses have been documented. Fourteen of these carcasses 
were towed to shore, 10 were found on the beach, and seven were 
unretrievable. Of the 14 carcasses retrieved, nine (64%) died as the 
result of ship strike. If we applied this percentage to all large whale 
carcasses that were not retrieved (223 animals), there may have been as 
many as 142 large whales that died as the result of a vessel strike in 
that five-year timeframe. This suggests that all large whale species in 
the near coastal waters of the U.S. are at risk from ship strikes and 
would be afforded protection from this rule.
What NMFS Needs to Carry Out Its Mandate Under the ESA for Right Whales
    NMFS has the statutory obligation under the Endangered Species Act 
to take actions that enable the recovery of right whales. The NMFS 
proposed rule has the weight of multiple independent scientific studies 
behind it. Other agencies should review the proposed rule for economic 
and other consequences, but should not attempt to second guess the 
science.
    Reducing right whale deaths is critical to protecting the species, 
yet federal funding for right whale research was halved in 2006, 
eliminating support for necropsies, entanglement mitigation, acoustic 
surveys, and photo-identification surveys, thereby negating the ability 
to monitor population health, survival and reproduction. Without these 
ongoing research efforts, it will be impossible to determine how many 
animals are being lost to human activities, which management measures 
are working, and what can be done to support the recovery of the 
species. This data loss is a disservice to the industries that are 
being regulated to reduce human-caused kills of this species, and it 
will hamper NMFS' ability to assure the recovery of the North Atlantic 
right whale under the Endangered Species Act.

Conclusion
    Fast ships kill large whales. Slowing ships will 1) reduce the 
probability of a fatality should an encounter occur, and 2) give whales 
the time to evade oncoming vessels. Ship strikes of whales involve all 
ship types, all species, and occur in all waters of the East Coast. 
NMFS, as the agency responsible for mitigating right whale mortality by 
law, has taken the appropriate approach in using the 10-knot speed 
limit. This speed limit considers economic impacts, safe navigation, 
and benefit to right whales in a fair and well-researched manner. There 
is no scientific justification for further delays in the proposed rule 
to seasonally slow ships in right whale habitats and migratory 
corridors along the East Coast of the U.S.
References Cited
Caswell, H., M. Fujiwara, and S. Brault. 1999. Declining survival 
        probability threatens the North Atlantic right whale. 
        Proceedings of the National Academy of Sciences 96:3308-3313.
Fujiwara, M., and H. Caswell. 2001. Demography of the endangered North 
        Atlantic right whale. Nature 414:537-541.
Jensen, A.S. and G.K. Silber. 2004. Large Whale Ship Strike Database. 
        NOAA Technical Memorandum NMFS-OPR
Kite-Powell, H.L., A.R. Knowlton, and M. Brown. 2007. Modeling the 
        effect of vessel speed on Right Whale ship strike risk Project 
        report for NOAA/NMFS Project NA04NMF47202394
Knowlton, A. R., F.T. Korsmeyer, B. Hynes. 1998. The hydrodynamic 
        effects of large vessels on right whales: Phase two. NMFS 
        Contract No. 46EANF60004
Kraus, S.D., M.W. Brown, H. Caswell, C.W. Clark, M. Fujiwara, P.K. 
        Hamilton, R.D. Kenney, A.R. Knowlton, S. Landry, C.A. Mayo, 
        W.A. McLellan, M.J. Moore, D.P. Nowacek, D.A. Pabst, A.J. Read, 
        R.M. Rolland. 2005. North Atlantic right whales in crisis. 
        Science 309:561-562.
Laist, D.W. A.R. Knowlton, J.G. Mead, A.S. Collet and M. Podesta. 2001. 
        Collisions between ships and whales, Marine Mammal Science, 
        17(1):35-75
Nelson, M., M. Garron, R. L. Merrick, R. M. Pace III, and T.V.N. Cole. 
        2007. Mortality and Serious Injury Determinations for Baleen 
        Whale Stocks along the United States Eastern Seaboard and 
        Adjacent Canadian Maritimes, 2001-2005. Northeast Fisheries 
        Science Center Reference Document 07-05.
Pace, R.M. and G. Silber. 2005. Simple analyses of ship and large whale 
        collisions: Does speed kill? Sixteenth Biennial Conference on 
        the Biology of Marine Mammals, San Diego, CA.
Vanderlaan, A.S.M. and C.T. Taggart. 2007. Vessel collisions with 
        whales: The probability of lethal injury based upon vessel 
        speed. Marine Mammal Science 23(1):144-156.
Vanderlaan, A.S.M., C. T. Taggart, A. R. Serdynska, R. D. Kenney, M. W. 
        Brown. 2008. Reducing the risk of lethal encounters: vessels 
        and right whales in the Bay of Fundy and on the Scotian Shelf. 
        Endangered Species Res. Vol. 4: 283-297.
Table 1. Summary of North Atlantic Right Whale Vessel Strikes, 1999-
        2008
    Compiled using data obtained from the National Marine Fisheries 
Service, the Provincetown Center for Coastal Studies, the New England 
Aquarium, and Woods Hole Oceanographic Institution.
    For more information on individually identified whales, go to 
http://rwcatalog.neaq.org/.

[GRAPHIC] [TIFF OMITTED] T2492.049

[GRAPHIC] [TIFF OMITTED] T2492.050

                                 ______
                                 
    The Chairman. Thank you.
    Dr. Franklin?

   STATEMENT OF JERRY F. FRANKLIN, PH.D., COLLEGE OF FOREST 
              RESOURCES, UNIVERSITY OF WASHINGTON

    Mr. Franklin. Thank you. I appreciate the invitation to be 
here today. I would just put down for the record that I have 
been involved in the issues with regard to the northern spotted 
owl for well over 20 years now, so I have had a little bit of 
experience with it.
    I was part of the Thomas Committee that did the original 
development of the DCA strategy. I was a member of the Gang of 
Four. I was a major participant in the FEMAT and Northwest 
Forest Plan preparation process, and I was a part of two 
sustainable ecosystem institute groups that were convened by 
the Fish and Wildlife Service, one to do a comprehensive 
science review on the owl and the most recent one to advise 
them on how to respond to the criticisms of the draft recovery 
plan.
    I want to compliment the Fish and Wildlife Service on the 
incredible improvement in the plan, going from the draft 
recovery plan to the final recovery plan that they issued last 
week. It was an order of magnitude improvement in the plan, but 
they had a long way to go.
    I particularly want to compliment them on the adoption of a 
credible strategy for dealing with owls in the dry forest 
habitats found on the eastern slope of the Cascade Range. That 
dry forest may turn out to be one of the keys to the long-term 
survival of this subspecies of the spotted owl because it 
appears that there is a possibility that the barred owl is 
going to be less competitive on these dry sites, so it was 
critical to address that.
    I also want to compliment them on the adoption of some 
adaptive approaches to keep problem areas. Certainly 
implementing the dry forest strategy, really developing a 
scientific basis for addressing the barred owl and for 
addressing issues in the very complex Klamath-Siskiyou region.
    I want to apologize to the Fish and Wildlife Service with 
regard to my testimony. I suggested in my testimony that 
various advisory committees that they intended to put together 
were just going to be Federal. The stated intent with regard to 
most of these in the recovery plan is that they would be multi-
institutional and involve a range of stakeholders, and I just 
would encourage this Committee to be sure that it happens that 
way.
    Perhaps my major criticism of the final recovery plan is 
that it does not adequately protect suitable owl habitat within 
the range of the northern spotted owl. This is recognized in 
the final recovery plan itself, which is why they have a 
Recovery Action 32 that says: Maintain substantially all of the 
older and more structurally complex multi-layered conifer 
forests on Federal lands outside of the MOCAs.
    Basically what has happened even in the final recovery plan 
is that we have a species in very serious decline, and still we 
are proposing in this final recovery plan to actually reduce 
both the quantity and quality of designated habitat on the 
Federal lands for the owl.
    We sort of went back to, this is perhaps too strong a word, 
but an ancient reserve design as a basis for the MOCAs. The 
concept in terms of addressing reserves on the Federal lands 
really advanced under the FEMAT and Northwest Forest Plan 
process to late successional reserves, which analysis has shown 
were much superior in terms of both the quantity and the 
quality of habitat insofar as owls are concerned.
    There are a couple of things that could be done very easily 
to resolve this. One would simply be to base any kind of a 
designated reserve system on Federal lands as the late 
successional reserve system and then add other areas as needed.
    If that seems to be unacceptable and the Agency doesn't 
want to do that, it would be possible to develop a more 
definitive basis for their Recovery Action 32, one which would 
actually define for the Federal agencies what that suitable 
habitat is and then simply require the agencies to be 
accountable for ensuring that it is maintained.
    I think I can end with that. Maybe I will just comment one 
other thing here. There was a suggestion that well, the late 
successional reserves are not really appropriate for this 
because they were for more than that. Well, I was there as part 
of a small team with Eric Forsman, Mr. Spotted Owl or Dr. 
Spotted Owl, drawing the boundaries of the late successional 
reserves in FEMAT.
    They were drawn very explicitly to meet owl criteria. We 
would have had a very different system if, in fact, the owl 
biologists had not been very and appropriately influential in 
that process. So to suggest that, in fact, they were not 
designed primarily to accommodate owls is not an accurate 
representation, so I will leave it there.
    Thank you.
    [The prepared statement of Mr. Franklin follows:]

 Statement of Dr. Jerry F. Franklin, Professor of Ecosystem Analysis, 
         College of Forest Resources, University of Washington

    I am here today to provide testimony on development and revision of 
the Recovery Plan for the Northern Spotted Owl, which was released by 
the U.S. Fish and Wildlife Service (USFWS) on May 16, 2008. I am 
Professor of Ecosystem Analysis in the College of Forest Resources at 
the University of Washington. These comments reflect my own views and 
not those of any institution or organization with which I am 
associated.
    Development of the recovery plan for the Northern Spotted Owl 
(Strix caurina var.occidentalis) (NSO) has a history that extends back 
nearly 20 years and which are interwoven with many other planning 
efforts, including the Interagency Scientific committee to Address the 
Conservation of the Northern Spotted Owl (Thomas et al.1990), 
Scientific Committee on Late Successional Forest Ecosystems (1991), 
Forest Ecosystem Management Team (1993), and Northwest Forest Plan 
(1994), in which I have been personally involved. I was a member of s 
Sustainable Ecosystem Institute's (SEI) team that was commissioned by 
the USFWS to do a comprehensive 10-year science review of the owl. In 
2007 the USFWS finally issued a Draft Recovery Plan, which received 
extensive public comment and scientific review, including by a 
scientific panel created by The Wildlife Society and in which I 
participated. Finally, earlier this year I participated in a science 
team commissioned by the USFWS and convened by SEI to advise the agency 
regarding responses to scientific criticisms raised of the draft plan 
in completing a final recovery plan.
    The SEI Team was convened to assist the USFWS in assessing the 
merit of the numerous scientific criticisms that were made of the Draft 
Recovery Plan and in developing appropriate responses to these 
criticisms during revision of the draft plan. The report of this group, 
``Scientific Review of the Draft Northern Spotted Owl Recovery Plan and 
Reviewer Comments'' is available at the Sustainable Ecosystems 
Institute website (http://sei.org). The team membership included 
several NSO specialists as well as scientific experts in fire ecology. 
SEI Team activities included two open meetings in which testimony was 
taken from numerous other scientific experts.
    Major findings of the SEI review of the Draft Recovery Plan 
included: (1) Major threats remain the loss of suitable habitat to fire 
and timber harvest and Barred Owl competition; (2) Much geographic 
variability exists in the ecology of NSO, especially suitable habitat 
and prey use, and this needs to be reflected in a final recovery plan; 
(3) The Draft Recovery Plan underestimates the threat of habitat loss 
from fire and from harvest or salvage of large trees; (4) The Draft 
Recovery Plan is unclear about how much suitable habitat will be 
protected--and this must be clarified in a revised plan; (5) The 
relation of NSO to habitat following wildfire in their home ranges is 
not clear--all fires do not result in habitat loss but intense stand-
replacement fires are certainly not desirable circumstances for the 
owls; (6) Control of Barred Owls may be warranted but credible 
experimentation and other research needs to be done before a control 
program is designed and adopted; (7) Wildfire threats are seriously 
underplayed in the Draft Recovery Plan and are likely to increase with 
climate change; (8) The ``...only viable conservation strategy [in the 
dry forests of the eastern Cascades) will be to actively managed fire-
prone forests and landscapes to sustain Spotted Owl habitat. However, 
this needs to be closely monitored through an adaptive management 
process.''; and (9) ``A simple reserve network is unsustainable in 
east-side fire-prone habitats. Conservation strategies, to be viable, 
must be designed and implemented at the landscape level.'' The SEI team 
also concluded that dealing with wildfire threats to NSO habitat in the 
Klamath Province (Klamath-Siskiyou Mountains) is critical but could not 
reach a consensus on what strategies should be adopted, given the 
considerable ecological complexity of the region; hence, the team 
concluded that developing an active conservation strategy for NSO in 
that province is a high priority in the near future and that it should 
include a team of scientific and technical experts diverse in both 
expertise and institutional affiliation.
    The SEI report on the Draft Recovery Plan emphasizes adaptive and 
collaborative approaches to approaching the several problem areas, 
including implementation of an Eastside Cascade management approach, 
development of a management approach for NSO in the Klamath Province, 
research and experimentation on Barred Owls; and, most important, 
general oversight on the implementation and effectiveness of a Final 
Recovery Plan. The history of the recovery planning effort and related 
federal activities, such as the Bureau of Land Management's WOPR, makes 
clear that there is very little confidence in the ability of the 
federal agencies to objectively implement such programs without 
participation and oversight by scientific and technical personnel from 
outside the federal establishment. Models from other regional efforts, 
which involve independent standing committee's of experts who are well 
educated and full engaged in regional conservation efforts, should be 
utilized in creating an oversight body for the final recovery plan.
    As is apparent from the preceding comments and the public record, 
the Draft Recovery Plan for the Northern Spotted Owl had significant 
scientific deficiencies. These included massive reductions in the 
acreage of critical habitat designated for the species, inappropriate 
extrapolation of scientific findings from the southwestern portions of 
the NSO range to its entire range, a failure to credibly address the 
threat of uncharacteristic wildfire in drier portions of the NSO range, 
and adoption of an aggressive program of Barred Owl removal without any 
scientific evidence as to whether it would be effective. All of the 
scientific reviews have been critical--intensely critical--of many 
aspects of the Draft Recovery Plan and of its overall scientific 
credibility. In effect, the Draft Recovery Plant failed all scientific 
tests.
    The final recovery plan for the NSO that was released last week 
represents a major improvement in scientific credibility over the draft 
recovery plan. The amount of critical habitat, identified as Managed 
Owl Conservation Areas (MOCAs) has been modestly increased, although it 
still falls well short of designating all suitable NSO habitat on 
federal lands. A credible strategy is provided for addressing risks of 
NSO habitat loss to uncharacteristic stand replacement wildfires has 
been incorporated into the plan (I will elaborate more on this later in 
my testimony). There is a plan for comprehensive scientific study and 
experimentation on the relationships between the barred and spotted owl 
prior to any extensive barred owl removal program.
    USFWS is to be applauded for these significant improvements in the 
scientific content of the final Northern Spotted Owl Recovery Plan. 
However, it is important that Congress recognize that these 
improvements are largely a consequence of the oversight provided by 
extensive public involvement, including comprehensive and independent 
scientific review during the development of the recovery plan.
    It is important to continue this kind of public oversight and broad 
scientific participation during the implementation of the plan. 
Specifically, the plan calls for the development of several inter-
organizational working groups, including a group that will oversee 
implementation of the plan and subgroups that will deal with the 
research programs on Barred Owls, development of a strategy for the 
Klamath Province, and implementation of the eastside landscape 
management approach. The USFWS apparently intends to only populate 
these working groups with employees of federal agencies; if this is 
correct, it is a serious mistake. Oversight and planning activities of 
these types should draw their participants from diverse organizations 
and stakeholder groups; they should not be limited to participants from 
federal agencies. Beyond broadened participation in these processes, 
independent third-party assessments are going to be critical in 
assuring the viability and credibility of adaptive management 
processes.
    My personal perspectives on two specific aspects of the Final 
Recovery Plan follow:
    Conservation Areas. The 133 owl conservation areas identified in 
the plan are not adequate. These are based on an old reserve design 
that was developed by the Interagency Scientific Committee to Address 
the Conservation of the Northern Spotted Owl (the ``Thomas Committee'') 
in 1989-1990. This system of reserves (referred to as Habitat 
Conservation Areas or HCAs at that time) was designed to provide 
adequate habitat for NSOs but distributed so as to minimize impacts on 
timber harvest programs. I see no scientific reason why the USFWS would 
have based their approach on this old strategy. The Northwest Forest 
Plan provided for a much more extensive system of Late Successional 
Reserves (LSRs), a system of reserves superior to the HCAs in both the 
amount and quality of owl habitat that was conserved. Given the 
critical status of the NSO it seems appropriate to me to provide both 
the larger amount and better quality of habitat found in the LSRs in 
preference to the system of MOCAs adapted from the earlier HCA 
strategy. An explanation of why LSRs were not used as the identified 
and mapped conservation area system is not provided in the Final 
Recovery Plan. The USFWS should use the NW Forest Plan's system of Late 
Successional Reserves as the core of the NSO conservation area strategy 
and supplement it as necessary with additional designated conservation 
areas. Given the declining status of NSO populations, these additions 
to the LSRs might well include all mature and old-growth forest outside 
of the LSRs on moist forest sites.
    Eastside Dry Forest Strategy. Better explanation or elaboration of 
the highly meritorious eastern Cascade Range dry forest strategy is 
appropriate in both press releases and in the main body of the plan, 
although a fuller presentation is available in an appendix. The press 
release describes the strategy as ``...one of shifting spotted owl 
habitat patches in an entire landscape...''; the emphasis should not be 
on the transient or shifting nature of the patches since the real 
intent is actually to decrease the risk that the denser forest patches 
of NSO nesting, roosting, and foraging habitat will burn and, 
conversely, increase the probability that the designated patches will 
persist. Further, at various places the plan describes the treatments 
of the forests within which these patches are embedded as ``thinning''; 
in fact, the silvicultural treatments are much more than simply 
thinning but, rather, restoration treatments that include prescribed 
fire and efforts to conserve and restore mature and old tree 
populations. USFWS should emphasize these landscape-level treatments as 
silvicultural treatments to restore more historic or characteristic 
(and, certainly, more sustainable) conditions and that the patches of 
NSO habitat will not be subject to significant mechanical thinning but, 
rather, retained intact and for as far into the future as possible.
    This approach of providing for sustainable owl habitat in the 
context of a larger, more holistic effort to restore the dry forest 
landscapes, stands, and old tree populations on the eastern slope of 
the Cascades is important. Optimizing the output of any single resource 
inevitably results in adverse affects on other elements of the 
ecosystem, whether organisms, processes or disturbance regimes. The 
proposed approach in the dry eastside Cascade forest holds the 
potential to benefit the full array of resources.
    Which leads me to my concluding comment on the NSO recovery 
planning process: I conclude my comments with a plea for holistic 
integrated approaches to resolution of natural resource management 
issues, including those related to endangered species. Historically 
there is a pattern of sequential episodes of planning and management of 
natural resources that essentially focus on a primary resource value. 
The dominant focus was wood production for many decades, shifted to 
conservation of biological diversity (as exemplified by Northern 
Spotted Owls), and, most recently to fuel treatments related to 
wildfire. It is inevitable that when we adopt a dominant focus on any 
single resource that there are significant negative impacts on other 
important resource values; it seems to be one of those great absolutes 
that this inevitably happens when you optimize for one specific 
resource outcome. Focusing primarily on timber production is a great 
example for we learned incontrovertibly that devoting a landscape 
primarily to maximizing wood production will result in negative impacts 
to many other important resource values, regardless of efforts at 
mitigation. Natural processes rarely produce forests and landscapes 
that ``optimize'' for specific organisms or processes, including 
disturbances; that is simply not the pattern by which they evolved. I 
believe that we need to stop lurching from one singular emphasis to 
another and begin to develop management regimes that truly integrate a 
variety of objectives (including timber production, provision of NSO 
habitat, and greater sustainability in the face elevated disturbance 
regimes). These approaches must be: Based on fundamental scientific 
knowledge about forest ecosystems and landscapes, including their 
integrated terrestrial and aquatic components; Holistic in their 
perspective and integrative in practice; and Actively engage 
stakeholders in both design and implementation, incorporate adaptive 
approaches, and provide for credible public oversight of agency 
performance.
                                 ______
                                 
    Mr. DeFazio. OK. Thank you for clarifying that point.
    We would now go to the next witness, and I can't see that 
far. Dr. Francesca Grifo?

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

    Ms. Grifo. Thank you, Mr. Chairman, and thank you to the 
Committee for inviting me here today. I am a Senior Scientist 
and the Director of the Scientific Integrity Program at the 
Union of Concerned Scientists, a nonprofit working for a 
healthy environment and a safer world.
    One of the great strengths of the Endangered Species Act is 
its foundation in robust scientific principles. Objective 
scientific information and methods should be used in protecting 
species. The habitat needs of endangered species should be 
scientifically well-informed, and the standard of best 
available science must rely on impartial scientific experts.
    Unfortunately, this has not been the case. The 
politicalization of endangered species science undermines the 
ESA's implementation and enforcement. As the GAO report 
confirms, in every stage of the process from the consideration 
of species for protection to the creation of recovery plans for 
critically endangered species, the Fish and Wildlife Service 
has both distorted science and changed the way it uses 
scientific information, creating a bias against endangered and 
threatened species. Julie MacDonald was truly only the tip of 
the iceberg.
    More than 80 species decisions from the past several years 
are under some type of review because of inappropriate 
interference for political or economic reasons. While we must 
continue to uncover instances where endangered species science 
has been manipulated, edited, overruled or ignored, it is 
equally important to determine what policies allow that 
interference to take place.
    For example, a Fish and Wildlife policy uncovered under the 
Freedom of Information Act prohibited Fish and Wildlife 
scientists from using Agency data to support the protection of 
endangered species during the 90-day finding, which is the 
first step in determining whether a species merits protection.
    The new policy still contains a table that requests data to 
refute the petition's information and clearly states that the 
information within the Service's files is not to be used to 
augment a weak petition, which had previously not been the 
case.
    Documents also show that one portion of the policy which 
requires a summary to be sent to Interior months before the 
petition review has been completed was implemented specifically 
so that Fish, Wildlife and Parks could discuss any issues early 
in the process. In the current context, we wonder what that 
really means.
    And while the spotlight exposing political interference in 
endangered species falls most harshly on Fish and Wildlife 
Service and Interior, NOAA and the Department of Commerce are 
not immune to political pressures. As we have heard, a rule 
intended to reduce fatal collisions between ships and the 
critically endangered right whale has been held at the Office 
of Management and Budget for 456 days when by executive order a 
90-day turnaround is required.
    Documents that we have uncovered show that the Office of 
the Vice President and White House Council of Economic Advisors 
spearheaded an attempt by the White House to discredit the 
science supporting the rulemaking.
    The Council of Economic Advisors went so far as to 
recollect the raw data, reprogram a nonrandom selection of data 
points--some might call that ``cherry picking'' the data--and 
use the resulting unscientific analysis to attempt to discredit 
the relationship with vessel speed and whale mortality. NOAA 
scientists described this analysis as biased and unlike any 
formal sensitivity analysis we are familiar with.
    Secretary Kempthorne did not list a single domestic species 
for two years and five days until a court deadline forced him 
to make a decision on the polar bear. Two hundred and eighty 
species await protections on the candidate list. Our research 
reveals that 52 90-day petitions and 34 12-month reviews were 
denied between 2002 and 2007.
    The Fish and Wildlife Service and the National Marine 
Fisheries Service have failed to establish a transparent means 
of implementing the Endangered Species Act. Agency officials 
are making decisions behind closed doors and with little 
accountability, giving those who abuse science considerable 
cover.
    The problem of political interference in science will not 
be solved solely by the arrival of a new Administration or the 
resignation of additional political appointees. There will 
always be pressure on elected officials from special interests 
to twist information in their favor and, for that reason, I 
urge this Committee to support systemic reforms.
    Specifically, meaningful publicly available ethics 
guidelines must be implemented at all agencies addressing the 
protection of imperiled species. We agree with GAO that the 
decision-making process must be made more transparent to expose 
the misuse of scientific information.
    Scientists should be allowed basic freedoms to carry out 
their work and keep up with advances in their field. This 
should include the right to publish in peer reviewed journals 
regardless of whether their research results agree with 
Administration policy or not, the right to speak freely based 
on clear media and communication policies and the encouragement 
to actively participate in all aspects of scientific societies.
    The conference committee reconciling the Whistleblower 
Protection Enhancement Act must give Federal scientists the 
right to expose political interference in their research 
without fear of retribution and to close in the short term and 
now because delay has consequences.
    Secretary Kempthorne should send a clear message to all 
political appointees that substituting opinions for science is 
not acceptable. We made this suggestion a year ago at this 
hearing, and we are still waiting.
    In light of the GAO report and the demonstrated 
pervasiveness of political interference in recent years, the 
Interior Department should engage in a systemic review of all 
Bush Administration decisions to ensure that the science behind 
those decisions was not altered or distorted, and Secretary 
Kempthorne must demonstrate that all 90-day reviews happen on 
time and are protective of species as required by law. We would 
like to see stakeholder input into the finalization of that 
guidance.
    Given the number of recent attempts to undermine the 
scientific underpinnings of the ESA by Members of Congress and 
political appointees, congressional committees of jurisdiction 
must act to safeguard the role of science in protecting highly 
imperiled species.
    Thank you.
    [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 a critique of the ethics policies of the Fish and 
Wildlife Service (FWS), evidence of a concerted effort by political 
appointees to interfere with the legally mandated process of listing 
endangered species, examples of interference in legally mandated 
endangered species actions, an overview of the problem of political 
interference in science, an updated summary of documented abuses of 
science in Endangered Species Act (ESA) 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 implement the law has been compromised.
    One of the great strengths of the Endangered Species Act is its 
foundation in robust scientific principles and its reliance on the best 
available science. Objective scientific information and methods should 
be used in listing species, the habitat needs of endangered species 
should be ``scientifically well-informed'' and the Endangered Species 
Act standard of ``best available science'' must rely on ``impartial 
scientific experts.''
    Unfortunately, time and time again, when scientific knowledge has 
appeared 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 Interior (DOI), this has been accomplished by placing 
people who are professionally unqualified or who have clear conflicts 
of interest in official posts; by censoring and suppressing reports by 
the government's own scientists, and by actually omitting or distorting 
scientific data.
I. Introduction
    Politicization of the science surrounding the Endangered Species 
Act undermines its implementation and enforcement. The manipulation and 
suppression of this science is pervasive and is not limited to one 
aspect of the execution of the Act, but rather it is rampant from the 
first steps of the listing process to the creation of recovery plans of 
critically endangered species. In addition, the Fish and Wildlife 
Service (FWS) and the National Marine Fisheries Service (NMFS) have 
failed to establish a transparent means of implementing the Act nor one 
subject to a clear code of ethics. Instead, the agencies allow 
political appointees within and without the conservation agencies to 
interfere with individual species decisions and propagate policies that 
reduce the role of science in endangered species decision making.
    The Endangered Species Act is a strong and significant 
environmental law, but its implementation is wearing thin under the 
assault of political pressures. This failure to insulate science based 
decision making from political considerations frequently lands FWS and 
NMFS in court, on the losing side of litigation. Decision-making occurs 
out of the view of the public, and out of reach of open government laws 
like the Freedom of Information Act.
    While it is imperative that we continue to uncover instances where 
endangered species science has been manipulated, edited, overruled, or 
ignored in its entirety, it is equally important to determine what 
policies exist or existed in the DOI and Department of Commerce to 
allow such interference to take place. Listing under the ESA is based 
solely on science; critical habitat and recovery plans can include 
economic and other concerns, but shouldn't be allowed to completely 
outweigh scientific conservation goals. With 80 FWS and NMFS decisions 
(Appendix I) under review because of political interference, this 
process of investigation of possibly illegal decisions has already 
begun. Unfortunately, FWS in its current capacity cannot be relied upon 
to initiate these reviews themselves, as they only found 7 decisions to 
review. Systemic problems are more difficult to detect from the 
outside, and more difficult to root out. However, we are hopeful that 
with clear, unambiguous ethics policies, a renewed commitment to 
transparent decision making, and a working environment free of 
interference and intimidation from high level political appointees, the 
career scientists and managers of the conservation agencies will be 
able to identify and correct the processes that have lead to the 
current abysmal situation.
    This testimony includes our analysis of the beginnings and failings 
of ethical reform at the DOI and FWS (page 1), problems with listing 
species under the ESA both at the anecdotal level and the procedural 
level, a discussion of the inherent flaws in the 90-day review policy 
(page 4) the problems in the implementation of the Act after listing, 
highlighting the recent case of the right whale, (page 9) and a 
discussion of the economic consequences of politically influenced 
decisions, and policies that may reduce species protections (page 12). 
In conclusion we present our recommendations for how this can be 
remedied (page 13).
II. Ethics at the Department of the Interior (DOI) and FWS
    Many of the problems with the implementation of the ESA stem from 
political appointees manipulating or overruling the science behind ESA 
decision-making. A strong ethics policy should address this problem, 
together with greater accountability, more transparency, and a 
retaliation-free environment for reporting political interference. 
Recent ethics policies at DOI and FWS attempt to achieving this goal, 
with varying degrees of success.
Secretary Kempthorne's Ethics Reform
    In June 2007, Department of Interior Secretary Dirk Kempthorne 
unveiled a 10-point ethics plan designed to transform the FWS into ``a 
model of an ethical workplace.'' 1 A month later, Kempthorne 
quietly scaled back the scope and utility of one of the central pillars 
of his plan, the Conduct Accountability Board. 2 
Jurisdiction of the Board was limited to cases involving ``Executive 
Level'' employees--less than 1% of the Interior workforce--and the 
Board was only allowed to review matters referred to it by the Deputy 
Secretary and Chief of Staff.
---------------------------------------------------------------------------
    \1\ Kempthorne, Dirk. Memorandum to All Employees. Subject: 
Promoting Ethics, the Public Interest, and Respectful Behavior. June 
27, 2007. Hosted online by Public Employees for Environmental 
Responsibility (PEER) at http://www.peer.org/docs/doi/
07_03_07_doi_ethics_
directive.pdf
    \2\ Kempthorne, Dirk. Amendment No. 1 to Order No. 3268. Subject: 
Creation of the Conduct Accountability Board at the Department of the 
Interior. July 25, 2007. Hosted online by PEER at http://www.peer.org/
docs/doi/07_17_12_cab_scope.pdf
---------------------------------------------------------------------------
    This means that if former Deputy Secretary Steven Griles, now 
serving time in federal prison for obstruction of justice related to 
his unethical connections to Jack Abramoff, 3 was still at 
Interior he could have determined whether his conduct would be eligible 
for Board review. Griles was the subject of an Inspector General 
investigation probing Griles' arrangement of meetings between former 
clients in the oil and gas industry and Interior Officials. Inspector 
General Earl E. Devaney expressed outrage before the House Government 
Reform Subcommittee on Energy on Sept 13, 2006 that 23 of 25 potential 
ethical violations he had uncovered were dismissed, and then-Secretary 
of Interior Gale Norton decided not to act on the remaining two 
allegations. 4 As for the general ethics of the DOI's 
leadership, Mr. Devaney charged, ``Simply stated, short of a crime, 
anything goes at the highest levels of the Department of the 
Interior.'' 5
---------------------------------------------------------------------------
    \3\ Department of Justice. Former Interior Deputy Secretary Steven 
Griles Sentenced to 10 Months in Prison for Obstructing U.S. Senate 
Investigation into Abramoff Corruption Scandal. June 26, 3007. 
Available online at http://www.justice.gov/opa/pr/2007/June/
07_crm_455.html
    \4\ Andrews, Edmund L. Interior Official Assails Agency for Ethics 
Slide. The New York Times. September 14, 2006.
    \5\ Ibid.
---------------------------------------------------------------------------
    It is unclear what functionality, if any, the Conduct 
Accountability Board retains. The first chair of the Board, Mark 
Linbaugh, then-assistant secretary for water and science, resigned 16 
days after his appointment to chair in order work for the Ferguson 
Group as a water lobbyist for industry. 6 Kempthorne had 
also identified Linbaugh as one of the Department officials charged to 
review the ethics issues raised by the Inspector General's report on 
Julie MacDonald. The IG determined that MacDonald, former Assistant 
Secretary of Fish, Wildlife, and Parks, had been ``heavily involved 
with editing, commenting on, and reshaping the Endangered Species 
Program's scientific reports from the field'' and had ``disclosed 
nonpublic information to private sector sources.'' 7 
Interior Deputy Secretary Lynn Scarlett refused to condemn MacDonald's 
actions in testimony on May 9, 2007 before this committee; she instead 
said that MacDonald ``strived to do what she thought was her duty to 
ensure quality product.'' 8
---------------------------------------------------------------------------
    \6\ Wyden, Ron. Press Release: Wyden Asks Secretary Kempthorne for 
Answers on Interior Ethics Concerns. July 19, 2007. Available online at 
http://wyden.senate.gov/newsroom/record.cfm?id=279869&
    \7\ Department of the Interior Office of the Inspector General. 
Investigative Report On Allegations Against Julie MacDonald, Deputy 
Assistant Secretary, Fish, Wildlife, and Parks. Available online at 
http://wyden.senate.gov/DOI_IG_Report.pdf
    \8\ Scarlett, Lynn. Committee on Natural Resources hearing 
transcript. Hearing entitled: Endangered Species Act Implementation: 
Science or Politics? May 9, 2007.
---------------------------------------------------------------------------
    The Department of Interior clearly needs an ethical conduct board 
to review the actions of its high level appointees, and it also needs 
to send a stronger message that, at every level of its leadership, it 
will adhere to strong ethical standards. It also needs to open the 
charge of the Board to review allegations from all-comers, not just two 
high ranking officials.
FWS Code of Scientific Conduct
    Fish and Wildlife Service Director Dale Hall also took steps 
towards ethical reform at his agency. In late January 2008, Hall 
released a Scientific Code of Professional Conduct that covers FWS 
employees. 9 While a positive first step, we believe this 
code has many shortfalls. The code does not encourage transparency. 
There is no way for scientists to express their difference of opinion 
on a regulatory decision. The code also does not create protections for 
scientists who express concerns about interference in science, or an 
outlet for them to do so anonymously without fear of reprisal.
---------------------------------------------------------------------------
    \9\ Hall, Dale. Scientific Code of Professional Conduct. Jan 30, 
2008. Available online at http://www.fws.gov/science/
---------------------------------------------------------------------------
    We are particularly concerned about two sections of the code. 
Section 7.7 (F) states that employees, should ``Strive to understand 
and accurately interpret, report, and apply scientific information to 
support management decisions affecting fish and wildlife and their 
habitats.'' 10 There are several documented cases of 
political interference where scientists were forced to manipulate their 
data to support pre-determined management decisions. For example, FOIA 
documents show that Benjamin Tuggle, regional director of the FWS 
Southwestern office, and Ren Lohoefener, former assistant director for 
the Endangered Species Program in the FWS Washington D.C. Office, 
``reached a policy call'' that the southwestern bald eagle did not meet 
the requirements under the ESA to be listed as a distinct population 
segment, or DPS. 11 In order to support this decision, FWS 
scientists were instructed during a meeting that the ``answer has to be 
that it's not a DPS'' and ``now we need to find an analysis that 
works.'' 12 We are concerned that the implementation of this 
clause in the ethics policy could further systemize situations like 
that of the bald eagle decision.
---------------------------------------------------------------------------
    \10\ Ibid.
    \11\ Union of Concerned Scientists. FWS Decrees the Southwestern 
Bald Eagle is Safe, in Spite of Science. FOIA documents on the 
southwestern bald eagle all obtained by the Center for Biological 
Diversity and generously shared with UCS. Available online at http://
www.ucsusa.org/scientific_integrity/interference/fws-decrees-
southwestern-bald-eagle-safe.html
    \12\ Ibid.
---------------------------------------------------------------------------
    Section 7.9(C) states that ``Employees must...Be forthright and 
honest about the scientific foundation used for possible policy options 
and the uncertainties associated with any resulting prediction of 
consequences for fish and wildlife and their habitats.'' 13 
Exaggerating scientific uncertainty is a common approach for political 
opposition to a science-based rule, so while we wholeheartedly agree 
that employees should be fully honest about scientific uncertainty, 
they should also be fully protected from the misinterpretation of this 
uncertainty.
---------------------------------------------------------------------------
    \13\ Hall, Dale. Scientific Code of Professional Conduct. Jan 30, 
2008. Available online at http://www.fws.gov/science/
---------------------------------------------------------------------------
    While the concerns above are all serious issues that should be 
addressed, the principal problem with this code of conduct is that it 
doesn't cover the leadership at the Interior Department. In a mid-
January 2008 meeting between Deputy Secretary Lynn Scarlett and several 
conservation organizations, Scarlett stated that the Interior 
Department could not create an overarching scientific code of ethics 
because the agencies varied too widely in their mission and procedures 
for decision making. 14 The Department should be able to 
agree on a basic set of ethics to guide how science is used to inform 
decisions. We encourage the Interior Department as a whole to adopt a 
policy like the FWS Scientific Code of Professional Conduct, taking 
note of our concerns. If it is truly impossible for Interior to adopt a 
uniform ethics code, then it should formally agree to abide by and be 
subject to the ethics codes of its individual agencies in its dealings 
with them.
---------------------------------------------------------------------------
    \14\ Meeting between Deputy Secretary Lynn Scarlett and 
conservation groups, including UCS. Jan 14, 2008.
---------------------------------------------------------------------------
III. Problems with Listing
    On May 14, 2008, Department of Interior Secretary Dirk Kempthorne, 
acting under a court ordered deadline, listed the polar bear as 
threatened under the Endangered Species Act. 15 Until that 
day, Kempthorne had gone two years and five days without listing a 
single domestic species, the longest drought in listing in the history 
of the ESA. 16
---------------------------------------------------------------------------
    \15\ Kempthorne, Dirk. Secretary Kempthorne Announces Decision to 
Protect Polar Bears under Endangered Species Act. May 14, 2008. 
Available online at http://www.fws.gov/home/feature/2008/
polarbear012308/pdf/DOI_polar_bears_news_release.pdf
    \16\ Center for Biological Diversity. Bush Sets New Record in 
Refusing to Protect Endangered Species. May 9, 2008. Available online 
at http://www.biologicaldiversity.org/news/press_
releases/2008/esa-listing-05-09-2008.html
---------------------------------------------------------------------------
    The implementation of the listing process for the Endangered 
Species Act is broken. While we do not have a clear picture for why the 
listing process has been so effectively severed, we believe it is a 
combination of individual actions against species and a biased policy 
on evaluating petitions that discriminates against listing. The 
following cases support this idea, but a thorough examination of the 
full policies and procedures governing listing is needed to ensure that 
imperiled species received the protections guaranteed to them by the 
ESA.
An Unfair Policy on 90-Day Petitions
    The FWS policy on conducting reviews of citizen petitions for ESA 
protection of species is biased towards denying listing, likely raises 
the standard that a petition must meet higher than is required by the 
Act and federal regulations, and prevents a full picture of the ``best 
available scientific and commercial data'' from being used in this 
first and critical stage towards listing. Through documents, many 
highly redacted, obtained via the Freedom of Information Act, UCS 
establishes that the implementation of the 90-day petition review 
process is open to political interference from high ranking officials 
in the FWS and DOI, and is likely part of the reason that the listing 
process ground to a halt for two full years.
    An overview of the rules governing listing--Two listing pathways 
were established for imperiled species in Endangered Species Act--a 
discretionary pathway where FWS can initiate the listing process either 
by placing a species on the candidate list or by issuing a proposed 
listing rule, and a pathway for action by the public. The listing 
record clearly shows that citizen petitions, and the court settlements 
enforcing their timetables, are the primary entry point to the 
endangered species list. The Service, for whatever reasons or 
constraints, rarely initiates its own reviews.
    The first stage of the citizen-initiated listing pathway is the 90-
day period, where the FWS determines whether or not to do a full-scale 
review of the species for listing. This process is determined by Sect 
4(b)(3)(A) of the Endangered Species Act, which states,
        ``To the maximum extent practicable, within 90 days after 
        receiving the petition of an interested person under section 
        533(e) of title 5, United States Code, to add a species to, or 
        to remove a species from, either of the lists published under 
        subsection (c), the Secretary shall make a finding as to 
        whether the petition presents substantial scientific or 
        commercial information indicating that the petitioned action 
        may be warranted. If such a petition is found to present such 
        information, the Secretary shall promptly commence a review of 
        the status of the species concerned.'' 17
---------------------------------------------------------------------------
    \17\ The Endangered Species Act. Available online at http://
www.fws.gov/endangered/pdfs/ESAall.pdf
---------------------------------------------------------------------------
    The standard for substantial information within the Code of Federal 
Regulations (CFR) is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted.'' 18 Petitioners are not required to prove 
that a listing is warranted, only to demonstrate the reliability of the 
information they present supporting the action advocated by the 
petition.
---------------------------------------------------------------------------
    \18\ 50 CFR 424.14(b)
---------------------------------------------------------------------------
    The FWS interpretation of listing rules--Through the narrow glimpse 
available through FOIA documents, the FWS policy for reviewing 90-day 
petitions interprets the Act and its accompanying regulations in such a 
way that the petition listing route is effectively closed. FWS internal 
memos (Appendix II) show that their policy (which updated policies from 
1995, but which we have been informed has been since slightly modified) 
interprets the Act to mean that, ``it is the responsibility of the 
petitioner to provide substantial scientific or commercial information 
to support the petitioned action.'' 19 The Service, in its 
implementation of this clause, requires the petition to be both legally 
and scientifically comprehensive, a standard which the average citizen 
or even the average environmental group cannot easily meet.
---------------------------------------------------------------------------
    \19\ Memorandum from the Director. Policy on 90-Day Petition 
Findings Under the Endangered Species Act. Sent to the Region heads by 
Chris Nolin on November 8, 2006. Obtained via FOIA by UCS. Appendix II.
---------------------------------------------------------------------------
    In fact, FWS policy explicitly prevents its scientists from using 
information they already have within their own files to support a 
citizen's petition. A memo obtained through FOIA entitled ``Policy on 
90-Day Petition Findings Under the Endangered Species Act'' emailed to 
the regional directors on 11/08/2006 by Chris Nolin (chief of the 
division of conservation and classification at the Fish and Wildlife 
Service) says, in the section discussing the scope of information to be 
considered, that information in FWS files is only to be used to
        ``...evaluate the reliability of the information contained 
        within the petition...The information within the Service's 
        files is not to be used to augment a `weak' petition. If we 
        have information independent of that provided in the petition 
        that is sufficient to support a change in the species' listing 
        status, it is the Service's responsibility to utilize our 
        internal candidate, listing, and delisting priorities and 
        processes.'' (Emphasis in original). 20
---------------------------------------------------------------------------
    \20\ Ibid.
---------------------------------------------------------------------------
    Again, FWS rarely initiates its own review of species, so refusing 
to continue a 90-day petition in the face of Service data suggesting 
that the species needs review is the least protective option FWS could 
take.
    FWS formalized the attitude that Service information should only be 
used to discredit a listing petition, and not augment it in such a way 
that imperiled species would quickly receive protections, by creating a 
new procedure for the review process, known as the 90-day petition 
outline and table. The new procedure, which FWS has told UCS was only 
used during 2005 and 2006, was requested by the office of the Assistant 
Secretary of Fish, Wildlife, and Parks as an early-warning system to 
allow them to ``discuss any issues early in the process.'' 
21
---------------------------------------------------------------------------
    \21\ Email from Michelle Morgan. Subject: New petition outline. May 
2, 2005. Obtained via FOIA by UCS. Available from UCS upon request.
---------------------------------------------------------------------------
    FWS scientists now had to prepare a 1-2 pages summary and an 
attached table detailing specifically each claim made in the petition, 
the information in the petition to support each claim, and if there was 
information in the Service's files to refute the petition. In fact, one 
column of the table explicitly calls for FWS information to refute the 
petition; there is no corresponding column for supporting information, 
and FWS scientists were explicitly told they could not use any. 
22 This outline and table were due at the Washington Office 
at least 2 months before the petition analysis was completed, so that 
the Washington Office could forward this report up the Assistant 
Director's level. 23
---------------------------------------------------------------------------
    \22\ Previous two references, and also: Listing meeting notes 
(regarding the southwestern bald eagle). May 16, 2005. Obtained via 
FOIA by the Center for Biological Diversity. All bald eagle FOIAs 
referred to in this testimony obtained by CBD. Available online at 
http://www.biologicaldiversity.org/news/press_releases/desert-bald-
eagle-05-17-2007.html
    \23\ Memorandum from the Director. Policy on 90-Day Petition 
Findings Under the Endangered Species Act. Sent to the Region heads by 
Chris Nolin on November 8, 2006. Obtained via FOIA by UCS. Appendix II.
---------------------------------------------------------------------------
    Specific flaws in the current interpretation--The FWS 90 day policy 
is fundamentally flawed for the following reasons:
    1.  The policy does not allow the use of the best available 
science. Listing decisions are required by the Act to be based on the 
best available science. The 90-day petition is the first step towards 
listing. Selective use of data in the review of a species is inherently 
not using the best available scientific data.
    2.  Scientific data in Service files is used in a biased manner 
which favors denying protections. Only allowing information from 
Service files to be used to refute a petition, not support a petition, 
is an uneven use of the taxpayer-funded science of the FWS. FWS files 
may contain the critical information suggesting that a species requires 
immediate protections, but the FWS policy prevents its employees from 
using this information in conjunction with the review already underway 
to make sure threatened and endangered species get their protections in 
a timely fashion. Instead, the policy requires Service employees to use 
their information to start a separate internal review, a process which 
rarely happens. Also, since the issue at hand is the protection of 
species threatened with extinction, bureaucratic delays due to uneven 
policies can and surely will result in the unnecessary extinctions.
    3.  The FWS policy lacks transparency. UCS requested the 90 day 
tables and the policies regarding the 90 day process in a FOIA request 
on November 28, 2007. Six months later, we still only have a partial 
response. In what we have received, FWS has redacted all of the 
``Service conclusion'' portions of the table which would allow you to 
see the effects of their selective use of scientific data. FWS claims 
that their conclusions are predecisional. This response is inconsistent 
with FWS's response to a FOIA request by the Center for Biological 
Diversity (CBD) regarding the southwestern bald eagle, in which no 
parts of the 90-day table were redacted.
    4.  The policy likely raises the burden of proof higher than is 
required by the Act or the CFR. According to the Act and the CFR, the 
petitioner has to provide substantial information that the petitioned 
action is warranted. They do not have to present an air-tight case that 
the species is warranted for the petitioned action--that is the 
threshold for the 12-month process. The CFR says they have to present 
enough information that a ``reasonable person'' would believe the 
action to be warranted. While we cannot tell the precise effects of the 
use of selective data because of the redactions in our FOIA, the table 
provided to the CBD for the bald eagle shows that 34 of their points 
were rated ``substantial'' while 4 points were rated ``information in 
dispute''. FWS subsequently denied Bald Eagle petition, but a court has 
since ordered a 12 month review of this subpopulation because of 
evidence that the scientists were forced to manipulate their findings 
to support a predetermined policy position.
    5.  FWS scientists are not allowed to use their full expertise. 
Hamstringing the ability of taxpayer-funded scientists with unfair 
restrictions on the use of data does a great disservice to the 
scientists, the imperiled species, and the public. From what we can 
tell from the redacted 90-day tables provided to us, FWS are not always 
adhering to the restrictions in the FWS policy, and we applaud them for 
their efforts.
    6.  The policy opens up the review process to political appointees. 
The inclusion of the 90-day table and outline to the review process was 
done so explicitly at the request of the Office of Fish, Wildlife and 
Parks. Internal emails show that conversations with the Assistant 
Secretary's office were the catalyst for the inclusion of the column 
for information which refutes, never supports, the petition. The 
Assistant Secretary's office has, through its former deputy assistant 
secretary Julie MacDonald, a documented history of manipulating, 
distorting, and suppressing endangered species science, and overturning 
the listing decisions of FWS scientists by executive fiat. It is not a 
stretch to assume that the 90-day outline and table were a part of the 
inappropriate interference of this office. While FWS says that the 
table is no longer being used in the petition process, we do not know 
if it has been replaced with something else, or if FWS has taken steps 
to insulate its scientists from the unacceptable manipulation of high 
level political appointees.
Individual Examples of Political Interference in Listing Decisions
    In species after species, scientific data has been minimized, 
edited, or overruled to deny ESA protections to imperiled species. 
Among the species whose listing decisions have been subject to 
political interference are the greater sage grouse, Gunnison sage 
grouse, Gunnison's prairie dog, white tailed prairie dog, Mexican 
garter snake, southwestern bald eagle, Preble's meadow jumping mouse, 
Sacramento splittail, California tiger salamander, roundtail chub, 
Tabernaemontana rotensis (a rare island tree), fluvial arctic grayling, 
and the Pierson's milkvetch. Most of these are now under investigation 
by either FWS, the Department of Interior IG, the Government 
Accountability Office, or the courts. We will highlight a few cases 
(See Appendix I for more examples):
    Gunnison's prairie dog--This species was on track for a positive 
90-day finding as of Jan 19, 2006. But a short email saying ``Per Julie 
please make the pd [prairie dog] finding negative'' overruled the 
scientists at FWS and the best available science on this species. When 
FWS announced it would review eight species decisions impacted by Julie 
MacDonald, it did not include this species in the list that they would 
revisit. Senator Wyden has since request an IG investigation including 
this prairie dog. 24
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    \24\ Union of Concerned Scientists. Systematic Interference with 
Science at Interior Department Exposed: Gunnison's Prairie Dog. 
Available online at http://www.ucsusa.org/scientific_integrity/
interference/endangered-species-act-interference.html
---------------------------------------------------------------------------
    Greater sage grouse--Julie MacDonald criticized scientific studies 
showing widespread threats to this species. MacDonald heavily edited 
the biologist's findings and the species received a 12-month not-
warranted finding. This finding has since been struck down in court due 
to the direct political interference overriding the use of best 
available science. 25
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    \25\ Union of Concerned Scientists. Systematic Interference with 
Science at Interior Department Exposed: Greater Sage Grouse. Available 
online at http://www.ucsusa.org/scientific_integrity/interference/
endangered-species-act-interference.html#
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An Unclear Future
    Two full years and a handful of days, from May 9 2006 to May 14, 
2008, passed in which Secretary Kempthorne failed to list a single 
domestic species. 26 This was not due to a lack of species--
280 species await protections on the candidate list, 27 and 
our FOIA reveals that 52 90-day petitions and 34 12-month reviews were 
denied between 2002 and 2007. 28 With over 80 species 
decisions from a similar time period under various public, court, 
congressional, IG, or GAO reviews because of inappropriate interference 
for political or economic reasons, 29 our faith that those 
petition denials were done in a fair and scientifically accurate 
process is greatly eroded.
---------------------------------------------------------------------------
    \26\ Center for Biological Diversity. Bush Sets New Record in 
Refusing to Protect Endangered Species. May 9, 2008. Available online 
at http://www.biologicaldiversity.org/news/press_
releases/2008/esa-listing-05-09-2008.html
    \27\ Department of the Interior. 72 FR 69034.
    \28\ UCS. FOIA into use of the 90-day table. Available upon 
request.
    \29\ Appendix I
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IV. Problems with Implementation after listing
    Listing is not the only area of Endangered Species Act 
implementation that is under assault from political interference. The 
pieces of the Act intended to ensure species' recovery--critical 
habitat and recovery plans--are subject to interference via delay, 
manipulation of science, biased cost-benefit analyses, and more. We 
highlight here a few blatant cases of politicization.
Right Whale Interference
    Political interference in endangered species decisions is not 
limited to the FWS and DOI. A new investigation by the Union of 
Concerned Scientists reveals unprecedented interference with a proposed 
rule intended to minimize losses of the critically endangered Northern 
Atlantic right whale. Documents show that five executive branch 
offices--The Office of Management and Budget, the Council on 
Environmental Quality, the Office of Science and Technology Policy, the 
Council of Economic Advisers, and the Office of the Vice President--
have all been involved in blocking the National Marine Fisheries 
Service from issuing the rule to protect whales from fatal collisions 
with ships.
    The right whale is critically endangered--Only about 300 right 
whales remain on the East Coast, and their numbers are threatened by 
fatal collisions with ships and entanglement in fishing gear. 
30 Ship strikes have caused at least 19 right whale deaths 
since 1986, with more suspected but unconfirmed. 31 
According to NMFS, ``no mortality or serious injury for this [whale] 
can be considered insignificant'' and that the death of even a single 
whale, particularly a breeding female, ``may contribute to the 
extinction of the species.'' 32
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    \30\ NOAA Fisheries--Office of Protected Resources. North Atlantic 
Right Whales (Eubaleana glacialis) webpage. http://www.nmfs.noaa.gov/
pr/species/mammals/cetaceans/rightwhale_north
atlantic.htm
    \31\ NOAA. Proposed Rule to Implement Speed Restrictions to Reduce 
the Threat of Ship Collisions with North Atlantic Right Whales. 71 FR 
36299, 36300. June 26, 2006.
    \32\ Stock Assessment, 12. NOAA. Advanced Notice of Proposed 
Rulemaking for Right Whale Ship Strike Reduction. 69 FR 30857. June 1, 
2004.
---------------------------------------------------------------------------
    As part of its efforts to protect the remaining individuals of the 
species, NMFS proposed a rule to implement a 10-knot speed limit around 
16 Atlantic ports and coastal areas during the seasons of right whale 
feeding, migrating, and reproducing. 33 After an extensive, 
thorough, and transparent four years of drafting, NMFS sent its final 
rule to OMB for review on Feb 20, 2007. 34
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    \33\ NOAA. Proposed Rule to Implement Speed Restrictions to Reduce 
the Threat of Ship Collisions with North Atlantic Right Whales. 71 FR 
36299, 36300. June 26, 2006.
    \34\ Office of Information and Regulatory Affairs (OIRA). EO 12866 
Regulatory Review--Search results for Department of Commerce. http://
www.reginfo.gov/public/do/eoPackageMain
---------------------------------------------------------------------------
    OMB delays the rule--Under the executive order authorizing the OMB 
to review regulations, OMB must complete its rule within 120 days--90 
days plus a 30-day extension. 35 The date of this hearing, 
May 21, 2008, will mark 456 days since the rule was sent to OMB.
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    \35\ Executive Order No. 12866. 58 FR 51734. Oct 4, 1993.
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    White House repeatedly attacks the science underlying the rule--
Internal documents obtained by UCS from anonymous sources show that 
offices within the White House have repeatedly challenged and attempted 
to discredit the scientific work of NMFS scientists with the goal of 
altering the rule.
    1.  The Office of the Vice President claims NMFS has ``no data''. 
In private communication, UCS has been told that the OVP has repeatedly 
challenged NOAA/NMFS conclusion that slowing ships, even ships of 
extremely large size, will reduce whale mortality. This is supported by 
the documents obtained by UCS. One document dated October 2007 shows 
NMFS employees replying to unfounded attacks from the Office of the 
Vice President:
        ``OVP staff wonders what evidence NOAA has of whales surviving 
        a collision with a 'large ship.' OVP staff contends that we 
        have no evidence (i.e., hard data) that lowering the speeds of 
        ``large ships will actually make a difference.'' 36
---------------------------------------------------------------------------
    \36\ NOAA. Response to the Office of the Vice President--Ship 
Strike Rulemaking. Oct 2007. Available online at http://
oversight.house.gov/documents/20080430104427.pdf

        NOAA's reply indicated this was not the first time they had to 
        defend against these allegations:
        ``Several types of statistical analysis (provided earlier) of 
        the ship strike records and theoretical physics (provided 
        earlier and appearing in peer-reviewed literature) indicated 
        that vessel speed is a critical variable in reducing the 
        severity of a ship strike.'' ``The size parameter is not 
        statistically significant in the models which incorporate it, 
        while speed is significant in all the models that included it'' 
        ``Accordingly, these theoretical exercises provide no basis to 
        overturn our previous conclusion that imposing a speed limit on 
        large vessels would be beneficial to whales.'' 37
---------------------------------------------------------------------------
    \37\ Ibid.
---------------------------------------------------------------------------
    2.  The Council of Economic Advisers conducts a biased analysis. 
After a meeting on July 10, 2007 involving NOAA, DOC, OMB, OSTP, OVP, 
and CEA to discuss the right whale ship speed rule, CEA announced it 
would ``investigate the reliability of analysis in the published 
literature on which NOAA is basing its position.'' 38 UCS 
has obtained a copy of that analysis, which can be seen in Appendix III 
in a side by side comparison to the NOAA analysis. 39 NOAA 
helped CEA construct the database of ship strike records; CEA also 
solicited information directly from academic researchers. Christopher 
Taggart of Delhousie University and Amy Knowlton of the New England 
Aquarium were both asked for data and analysis by CEA. 40
---------------------------------------------------------------------------
    \38\ NOAA. Response to Council of Economic Advisers' (CEA) Analysis 
of Vessel Speed vs. Whale Ship Strikes. July 31, 2007. Available online 
at http://oversight.house.gov/documents/20080430104427.pdf
    \39\ Appendix III. Side by side comparison of NMFS analysis of 
right whale mortality vs ship speed with the CEA analysis of the same 
thing.
    \40\ Private communication with Dr. Amy Knowlton and Dr. 
Christopher Taggart.
---------------------------------------------------------------------------
    For its analysis, CEA's staff, which has no expertise in either the 
right whale or scientific biometrical modeling, re-coded a non-random 
selection of datapoints, and concluded that the relationship between 
whale mortality and ship speed is not as strong as is suggested by 
career NOAA scientists and independent, peer-reviewed publications. CEA 
also questioned the choice of 10 knots as a speed limit. 41
---------------------------------------------------------------------------
    \41\ NOAA. Response to Council of Economic Advisers' (CEA) Analysis 
of Vessel Speed vs. Whale Ship Strikes. July 31, 2007. Available online 
at http://oversight.house.gov/documents/20080430104427.pdf
---------------------------------------------------------------------------
    NOAA responded to the CEA analysis in a document obtained from an 
anonymous source. In this document, NOAA says:
        ``NOAA has reviewed CEA's analysis and finds it is a biased 
        sensitivity analysis. ``Furthermore, this analysis is unlike 
        any formal sensitivity analysis NMFS biometricians are familiar 
        with.'' ``The basic facts remain that (1) there is a direct 
        relationship between speed and death/serious injury, and (2) at 
        vessel speeds at or below 10 knots the probability of death/
        serious injury is greatly reduced.'' 42
---------------------------------------------------------------------------
    \42\ Ibid.
---------------------------------------------------------------------------
    3.  NOAA and NMFS scientists have been assailed by attempts to 
undermine their science. Through private communications, leaked 
documents, public records and anonymous mailings, UCS has determined 
that NOAA scientists have been constantly challenged by industry, White 
House agencies, and other departments within the federal government.
          As yet another challenge to the NOAA research, OSTP 
        contracted a scientist from Woods Hole Oceanographic Institute 
        to conduct yet another study on ship speed and right whale 
        mortality. UCS has been unable to find a copy of this report, 
        and the scientist has signed a confidentiality agreement. 
        43
---------------------------------------------------------------------------
    \43\ Private communication.
---------------------------------------------------------------------------
      The World Shipping Council, and industry group, has been 
pressuring OMB to dismiss or seriously alter the rule. The shipping 
community is not united in this attitude, as the Chamber of Shipping of 
America supports the rule with minor exemptions. 44
---------------------------------------------------------------------------
    \44\ Office of Management and Budget. Public Comments webpage for 
NOAA. http://www.whitehouse.gov/omb/oira/0648/comments.html
---------------------------------------------------------------------------
      NOAA fielded at least one other round of questions from 
the White House, this time questioning calf birth data, the impact 
force required to kill a whale, and the decision of 30 nautical miles 
as the radius around points of concern. NOAA responded to these 
questions on Nov 20, 2007. 45
---------------------------------------------------------------------------
    \45\ NOAA. Responses to 16 November Questions from the White House 
on Right Whale Ship Strike Reduction Final Rule. November 20, 2007. 
Available online at http://oversight.house.gov/documents/
20080430104534.pdf
---------------------------------------------------------------------------
      The Maritime Administration, a branch of the Department 
of Transportation, has repeatedly challenged the rulemaking in 
internal, private meetings. 46
---------------------------------------------------------------------------
    \46\ Private communication.
---------------------------------------------------------------------------
    It is wholly inappropriate for White House agencies to attempt to 
manipulate right whale science--The case of the right whale speed rule 
displays political interference in science at its worst. NOAA 
scientists have done absolutely everything required of them in the 
rulemaking, conducting an open and stakeholder-accessible process based 
on the best available science. Unfortunately, we have no idea if their 
staunch defense of their rule has been successful, both because the 
rule is delayed and because the current executive branch review of the 
rule is completely opaque.
    Uncovering this story took time and patience, as the good 
scientists at NOAA wrestled both wanting the political interference to 
be exposed and fearing for retaliation against themselves and the rule 
itself. However, through anonymous documentation, it is now clear that 
White House agencies have conducted two separate studies attempting to 
inject artificial uncertainty into the relationship between ship speed 
and whale mortality; one of these studies was biased and did not follow 
accepted, peer-reviewed practices for analysis. The Office of the Vice 
President has boldly doubted the conclusions of the NOAA scientists, 
and the OMB has delayed the rule for a year and three months.
Political Interference in Other Species Protections
    Besides the right whale, many other species have suffered from 
political interference reducing their chances at recovery. Among them 
are the arroyo toad, bull trout, California red-legged frog, Canada 
lynx, three invertebrates living in Comal Springs, the gulf sturgeon, 
loach minnow, Northern spotted owl, Preble's meadow jumping mouse, 
Santa Ana sucker, southwestern willow flycatcher, spikedace, and the 
Topeka shiner. 47 Many of these are under investigation 
(Appendix I). We will highlight two of these cases--the spotted owl 
shows high level interference in a recovery plan, and the bull trout 
shows a common practice of manipulating a cost-benefit analysis to 
significantly reduce critical habitat.
---------------------------------------------------------------------------
    \47\ Appendix I.
---------------------------------------------------------------------------
    Spotted Owl--High ranking officials from the DOI, FWS, and the 
other federal land agencies intervened in the recovery plan for the 
northern spotted owl, compromising the science-based protections in 
order to reduce barriers to increased logging in old-growth forests. 
48 According to peer review by scientists, the draft 
Northern Spotted Owl Recovery Plan 49 prepared in 2007 by 
FWS is a hodgepodge of deliberately misrepresented or selectively 
applied science that downplays the importance of habitat loss. 
50 It also includes a second management option, forced upon 
the recovery team by senior officials, that eliminates fixed protected 
areas for the bird.
---------------------------------------------------------------------------
    \48\ DellaSala, Dominick. Written testimony for the House Natural 
Resources Committee Hearing entitled ``Endangered Species Act 
Implementation: Science or Politics?'' May 9, 2007. http://
www.nccsp.org/files/land/spottedowltestimonydds.pdf
    \49\ FWS. Draft Recovery Plan for the Northern Spotted Owl: Merged 
Options 1 and 2. April 2007. Available online at http://www.fws.gov/
pacific/ecoservices/endangered/recovery/documents/
DraftRecoveryPlanNorthernSpottedOwlWEB_000.pdf
    \50\ FWS. N. Spotted Owl Draft Recovery Plan peer reviews. See in 
particular the Society for Conservation Biology (North American 
Section) and American Ornithologist's Union review. http://www.fws.gov/
pacific/ecoservices/endangered/recovery/peer.html
---------------------------------------------------------------------------
    Bull trout--Officials at the FWS censored an analysis of the 
economics of protecting the bull trout, a threatened trout species in 
the Pacific Northwest, publishing only the costs associated with 
protecting the species and deleting the report's section analyzing the 
economic benefits. Furthermore, while the benefits of protecting the 
bull trout were deleted from the economic analysis, the costs 
associated with this species' protection were inflated. 51 
An exaggerated cost analysis and a deleted benefits analysis 
essentially give the FWS the economic justification, under the ESA, to 
disregard scientific information when designating critical habitat for 
the endangered bull trout.
---------------------------------------------------------------------------
    \51\ FWS press release, ``Draft Economic Analysis of Critical 
Habitat Proposal for Bull Trout in the Columbia and Klamath River 
Basins Released for Public Comment,'' April 5, 2004. Available online 
at http://news.fws.gov/newsreleases/r6/E6CD3A83-F8FD-484C-
8523CF328EC43D93.html.
---------------------------------------------------------------------------
Economic Consequences
    Political interference in science not only delays or prevents much 
needed protections for imperiled species; it can also have drastic 
economic consequences. For example, in two scientifically compromised 
decisions, FWS and NMFS determined that water use plans in California 
would not harm several species of endangered fish, including the delta 
smelt, winter and spring run Chinook salmon, and Central Valley 
Steelhead. Federal courts later confirmed the allegations that politics 
overruled science and struck these decisions down, demanding they be 
rewritten. However, implementation of water use plans had already begun 
to move forward based on these illegal decisions. 52
---------------------------------------------------------------------------
    \52\ Endangered Species Coalition. Political Interference and the 
Loss of Salmon: How Federal Biological Opinions Affected the Salmon 
Fishing Closure. Available upon request.
---------------------------------------------------------------------------
    The costs, both economic and ecological, of these decisions are 
innumerable and far-reaching. California is experiencing severe drops 
in populations in many fish species and the salmon fishery in the 
Sacramento system has crashed, along with several other species in the 
Delta. The federal government has been asked for $150 million in 
disaster relief for the fishing industry, and the recreational fishing 
industry (a $4.8 billion industry supporting 41,000 jobs) and 
recreational boating ($60 million in sales in 2006) will be hit hard. 
53 Additional costs, yet undetermined, will be incurred by 
agriculture and the urban water industries as water deliveries to urban 
and farming areas are cut dramatically in an attempt to bring these 
species back from the brink. Had the FWS and NMFS used the best 
available science and determined that the proposed water delivery 
options would jeopardize these species in the first place, the region 
might not be in the critical situation it finds itself in now.
---------------------------------------------------------------------------
    \53\ Pool, Richard. Testimony before the Subcommittee on Fisheries, 
Wildlife and Oceans. May 15, 2008. Available online at http://
resourcescommittee.house.gov/images/Documents/20080515/
testimony_pool.pdf
---------------------------------------------------------------------------
New Policies of Concern
    On March 16, 2007, the Interior Office of the Solicitor issued a 
memorandum reexamining what the ESA means when it defines an 
``endangered species'' as one which is ``in danger of extinction 
throughout all or a significant portion of its range.'' 54 
The conclusion of this memo finds that the range of a species is 
limited to that area where it currently exists, and should not include 
any range in which the species historically existed but has since been 
extirpated. This conclusion will likely impact both listing and the 
protection of listed species. Many endangered species live in habitats 
of severely reduced size due to urban encroachment or pollution. If FWS 
rules that species have no right to their historic range, many will be 
left in situations where they simply cannot recover to the point where 
than can be removed from the endangered species list.
---------------------------------------------------------------------------
    \54\ Department of the Interior Office of the Solicitor. Subject: 
The Meaning of ``In Danger of Extinction Throughout All or a 
Significant Portion of its Range.'' March 16, 2007. Available online at 
http://www.doi.gov/solicitor/M37013.pdf
---------------------------------------------------------------------------
    In addition, simultaneous to the listing of the polar bear, 
Secretary Kempthorne announced that DOI would be issuing another 
solicitor's opinion narrowing the scope of possible protective actions 
for the polar bear. 55 The press release also stated that 
``the Department will proposed common sense modifications to the 
existing regulatory language.'' Modifications to the regulatory 
language of the ESA have been attempted before which would have 
significantly reduced the effectiveness of the Act. Congress must 
remain vigilant as to what these new regulatory changes will be to 
ensure that the Act continues to function as the premier defense 
against extinction.
---------------------------------------------------------------------------
    \55\ Kempthorne, Dirk. Secretary Kempthorne Announces Decision to 
Protect Polar Bears under Endangered Species Act. May 14, 2008. 
Available online at http://www.fws.gov/home/feature/2008/
polarbear012308/pdf/DOI_polar_bears_news_release.pdf
---------------------------------------------------------------------------
V. Recommendations--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:
Ethics at the DOI
    Secretary Kempthorne must fully implement the 10-point ethics plan 
he unveiled over a year ago. We have not been able to discern the 
extent to which it has been implemented or modified but they do not 
appear to be extensive. The Conduct Accountability board appears to be 
particularly flawed and dysfunctional and in need of reform such as a 
broader charge. The DOI should also create a Scientific Code of 
Professional Conduct similar to the FWS and do this with scientific 
community input.
Ensuring Agency Independence
    While the Office of Management and Budget and other White House 
offices play important roles in coordinating and overseeing the 
regulatory process, those roles should not include second-guessing or 
editing the science underlying ESA decisions.
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 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 (positive or negative) 
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.
      DOI scientists should be encouraged to actively 
participate in relevant scientific association meetings including 
serving on their boards or as officers. These activities should not be 
viewed as a conflict of interest.
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, 
policymakers, 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.
      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. Whistleblower protections for scientists who report abuse 
of science would help ensure that basic scientific freedoms of federal 
scientists are respected.
      The Conference Committee reconciling the Whistleblower 
Enhancement Act, must retain the House provision which would give 
federal scientists the right to expose political interference in their 
research without fear of retribution. It's time for the Conference 
Committee to act to protect scientists.
      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 all 
the decisions where political interference has been exposed.
      Secretary Kempthorne must demonstrate that the 90 day 
review is protective of species. Listing decisions must be based on 
best available scientific and commercial data. Secretary Kempthorne 
must insure that all the information the FWS has is included--not just 
the information that would not support a listing.
      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.
    We look forward to working with the 110th Congress on comprehensive 
bipartisan legislation and other reforms to restore scientific 
integrity to federal policymaking.

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                                 ______
                                 
    Mrs. Napolitano [presiding]. Thank you very much. That was 
quite a statement.
    We would like to now call on Mr. Scott Hoffman Black, the 
Executive Director of Xerces Society for Invertebrate 
Conservation.

 STATEMENT OF SCOTT HOFFMAN BLACK, EXECUTIVE DIRECTOR, XERCES 
             SOCIETY FOR INVERTEBRATE CONSERVATION

    Mr. Black. Thank you for the opportunity to provide 
testimony today. I very much appreciate it. My name is Scott 
Hoffman Black, and I am an ecologist and entomologist, and I am 
the Executive Director of the Xerces Society for Invertebrate 
Conservation.
    We actually were named after the first butterfly to go 
extinct in the U.S. because of human activity. It was in the 
San Francisco area as the Presidio expanded for World War II. 
Not an easy name to pronounce, but a good name for an 
organization like ours.
    For 37 years, the Xerces Society has worked with agencies, 
scientists, land managers and farmers to conserve habitat, 
habitat for invertebrates who are vitally important for our 
welfare. So why care about these animals that most people don't 
think of? Well, butterflies, bees, dragonflies, beetles, worms, 
starfish, mussels and crabs are but a few of the millions of 
invertebrates at the heart of a healthy environment.
    Consider some facts. More than two-thirds of all flowering 
plants require insects for pollination. We wouldn't have most 
plants without insects. Insects and other invertebrates play a 
vital role in nearly every food chain. Eighty-nine percent of 
birds depend upon insects at some point in their lifecycle. If 
you fish, bird watch or hunt game birds you can thank insects 
for that opportunity as all of these animals need to feed on 
insects to survive.
    They are also very important in medicine and technology. 
For instance, scientists recently discovered the highly 
endangered Hawaiian picture wing flies. These are the flies 
that MacDonald changed the critical habitat on and provided 18 
acres of critical habitat for. These flies may possess an 
antibiotic previously unknown to medical science, yet there was 
18 acres of critical habitat provided for these very important 
animals.
    Indeed, according to a recent paper in the journal 
Bioscience, the benefits of native insects to the U.S. economy 
is worth more than $57 billion a year for pollination services, 
pest control and for food for economically important wildlife. 
That is $57 billion a year. Hopefully now you know why we care 
about these small animals.
    While the Endangered Species Act has been successful in 
protecting some invertebrates, the U.S. Fish and Wildlife 
Service often does not take the recommendations of its own 
scientists in making decisions regarding ESA listing and 
critical habitat decisions.
    Although Julie MacDonald may have provided the most 
egregious examples of illegal activity at the expense of these 
endangered species, there are cases in which she was not 
involved where the U.S. Fish and Wildlife scientists were 
overruled anyway.
    Consider a couple case studies. I have more in my written 
testimony. Over 90 percent of the endangered Salt Creek Tiger 
Beetles' salt marsh habitat has been destroyed or severely 
degraded, and there are estimated to be less than 700 of these 
beetles remaining. Not 7,000. Seven hundred.
    A multi-agency team of scientists initially proposed over 
36,000 acres of critical habitat for the recovery of this 
beetle. At the prompting of the U.S. Fish and Wildlife Service, 
the team revised the proposal to 15,000 acres of critical 
habitat. They were trying to balance science with other issues.
    The team members expressed that 15,000 acres was the bare 
minimum amount of habitat needed in order for the species to 
recover. The U.S. Fish and Wildlife Service then proposed only 
1,795 acres of critical habitat. One scientist on the team, in 
comments, has called the decrease from 15,000 to 1,700 
ludicrous.
    The Miami blue butterfly was mentioned earlier by the GAO. 
It was originally petitioned for listing when there were less 
than 100 butterflies left. This was a formerly very common 
species. The field office and region prepared an emergency rule 
to list the species because of its limited habitat and the 
multiple threats. After review, Service officials at all 
levels--at all levels--supported recommendation for listing.
    Citing a Florida state management plan and the existence of 
a captive bred population which had not yet been released, 
however, one Interior official--not Julie MacDonald--determined 
that emergency listing was not warranted, and the blue 
butterfly was designated as a candidate instead.
    Dr. Jaret Daniels, the world expert on the species and a 
butterfly expert at the McGuire Center for Lepidoptera at the 
University of Florida, believes that the current species' very 
small distribution, dangerously low population numbers and 
limited areas available for reintroduction leaves this 
butterfly extremely vulnerable to extinction.
    As mentioned earlier by Dr. Grifo, in addition to 
interfering with these scientific decisions concerning 
endangered species, this Administration has been awful and has 
really failed the Endangered Species Act on new listings. As we 
heard, we have had the fewest new species of any Administration 
since the ESA was passed, and it is not for lack of species in 
need. We have over 281 species that are candidates waiting for 
decisions.
    It is imperative that the U.S. Fish and Wildlife Service 
and the Interior fix the ESA listing process by allowing their 
own scientists to do their jobs unhindered by political 
interference and get some of these candidates who have been 
some of them waiting for years off this list.
    In summary, we continue to see recommendations of U.S. Fish 
and Wildlife Service scientists overruled by their superiors. 
This interference I believe has a negative impact on the 
recovery of these species, as well as a demoralizing effect on 
U.S. Fish and Wildlife Service scientists who call me from 
their home at night.
    In the long run, these decisions cost taxpayers more money 
as the issues need to be resolved in court. For the sake of the 
conservation of these species, decisions need to be based on 
science, not politics.
    Thank you, and sorry for going a little bit over.
    [The prepared statement of Mr. Black follows:]

       Statement of Scott Hoffman Black, Ecologist/Entomologist, 
  Executive Director, The Xerces Society for Invertebrate Conservation

Summary
    Insects and other invertebrates perform the vital services of 
pollination, seed dispersal, and nutrient recycling and are food for 
wildlife. Native insects are also worth over 57 billion dollars a year 
to the U.S. economy. Many invertebrates are currently faced with 
extinction. While the Endangered Species Act [ESA] has been very 
successful in protecting and recovering some invertebrates, the U.S. 
Fish and Wildlife Service [USFWS] often does not follow the law or take 
the recommendations of its own scientists in making decisions regarding 
ESA listing and critical habitat. Although Julie MacDonald may have 
provided the most egregious examples of illegal activity at the expense 
of endangered species, there continue to be other, ongoing examples of 
the U.S. Fish and Wildlife Service violating the law and ignoring 
science.
Salt Creek Tiger Beetle (Cicindela nevadica lincolniana) Critical 
        Habitat
    A multi-agency team of scientists initially proposed over 36,000 
acres of critical habitat for the recovery of the Salt Creek Tiger 
Beetle. At the prompting of the USFWS, this team revised the proposal 
to 15,000 acres of critical habitat. The USFWS then proposed only 1,795 
acres of critical habitat. One scientist on the team has called the 
decrease from 15,000 acres to 1,795 acres ludicrous. This decision was 
not based upon the scientific information available regarding the 
species and the area needed for its recovery.
Miami Blue Butterfly (Hemiargus thomasi bethunebakeri) Listing
    This butterfly was originally petitioned for listing when there 
were less than 100 individuals known to exist. The field office and 
region prepared an emergency rule to list the species because it was 
limited to one population and threats were imminent. The DC office 
failed to follow through on the listing even though all of the 
information available showed that listing was both scientifically and 
legally justified. The number of butterflies remains critically low yet 
the USFWS has not taken action to list this species.
Island Marble Butterfly (Euchloe ausonides insulanus) Listing
    The USFWS denied listing this species, which has fewer than 1,000 
estimated individuals left in its population. There continue to be 
multiple threats to the survival of this butterfly. The field office 
initially was preparing a rule to list the species, but the regional 
office failed to follow though with the listing.
    In addition to interfering with scientific decisions concerning 
endangered species, in the tenure of this administration the USFWS has 
systematically failed to implement the Endangered Species Act. In 
particular, they have been dragging their feet in listing new species, 
having listed the fewest new species of any administration since the 
ESA was passed. To date, the administration has protected just 60 U.S. 
species, compared to 522 protected under the Clinton administration and 
231 protected under the elder Bush's administration. Until the courts 
forced the U.S. Fish and Wildlife Service to protect the polar bear 
last week, the agency had not protected a new U.S. species for 735 
days. This drought in protection of new species far surpassed the last 
such drought, which occurred when James Watt was Secretary of Interior 
and went 382 days without protecting a species in 1981 and 1982. This 
previous drought led Congress to amend the Endangered Species Act to 
include mandatory timelines for listing species.
    The lack of new listings is not for a lack of deserving species. 
There are currently 281 species that are candidates for listing, 
including many invertebrates.
    It is imperative that the USFWS and Department of Interior fix the 
ESA listing process by allowing agency scientists to do their jobs 
unhindered by political interference and by listing all of the 
candidate species in the next five years. Congress could help this 
process by increasing funding for listing of new species and ESA 
implementation overall and by providing clear direction to the agency 
that increased funding be used to provide protection to candidate 
species.
Importance of Invertebrates
    Butterflies, dragonflies, beetles, worms, starfish, mussels, and 
crabs are but a few of the millions of invertebrates at the heart of a 
healthy environment. Invertebrates build the stunning coral reefs of 
our oceans; they are essential to the reproduction of most flowering 
plants, including many fruits, vegetables, and nuts; and they are food 
for birds, fish, and other animals.
    Of the more than one million species of animals in the world, 94 
percent are invertebrates. The services they perform--pollination, seed 
dispersal, food for wildlife, nutrient recycling--are critical to life 
on our planet. Indeed, without them whole ecosystems would collapse. 
But when decisions are made about environmental policy and land 
management, these vital and diverse creatures are often overlooked.
Consider the Facts
    More than two-thirds of flowering plants require insects for 
pollination.
    Insects, worms, and mites are vital in helping microbes break down 
dung and dead plant and animal matter.
    Insects and other invertebrates play pivotal roles in nearly every 
food chain. Eighty nine percent of birds depend upon insects at some 
point in their lifecycle. Small flies are the most important food 
source for juvenile salmon. Even the mighty grizzly bear can eat 30,000 
cutworm moths a day. Some grizzly bears get 1/3 of their yearly supply 
of food from these insects.
    Invertebrates are also very important for medicine and technology. 
Horseshoe crabs are used extensively in the biomedical and 
pharmaceutical industries. Pharmaceutical companies use a blood enzyme 
from horseshoe crabs to test the safety of their products. Spider silk 
is being used to understand how to make better parachutes and sea stars 
are being studied to understand how to make better photoreceptors. 
Studies of the interactions among ants in a colony have led to 
breakthroughs in managing shipping terminals. What other discoveries 
await us?
Invertebrates Contribute to the Economy
    According to a recent paper in the journal Bioscience, the benefits 
of insects to the U.S. economy is worth more than $57 billion per year. 
Insects are a critical food source for the animals that drive a $50-
billion-per-year recreation industry (game bird hunting, fishing and 
bird watching). Pollination by non-honeybee insects, primarily native 
bees, supports $3 billion annually in agricultural crops. Native 
insects that control pests save growers an estimated $4.5 billion per 
year.
    According to E.O. Wilson, Pulitzer Prize-winning author and 
renowned scientist, ``So important are insects and other land-dwelling 
arthropods that if all were to disappear, humanity probably could not 
last more than a few months.''
Importance of Endangered Insects
    A rare and endangered species of insect or other invertebrate is 
unlikely to determine the fate of an ecological system, but as a group 
these species may have a profound effect. Ecosystem functions, such as 
the recycling of nutrients, often are done by specialists like the 
American burying beetle (a species listed as Threatened) rather than 
generalists.
    Endangered species also can act as keystone species in small, 
specialized systems, such as caves, oceanic islands, or some 
pollinator--plant relationships. For example, some plant species rely 
on only one or few species of pollinators. Decreased abundance or loss 
of any of these pollinators can lead to the extinction of plants.
    Some endangered species might provide useful products, such as new 
defenses against diseases and tools for studying various ecosystem or 
organismal processes, as well as direct material benefits. For 
instance, Scientists recently discovered that highly endangered 
Hawaiian picture wing flies (Drosophila spp.) may possess auto-immune 
system characteristics previously unknown to medical science.
    Endangered invertebrates can act as ``Canaries in a coal mine'' and 
can be used as indicator species. Aquatic insects have been used for 
decades to assess water quality, endangered butterflies can be used to 
determine the condition of meadow and prairie habitats and some rare 
snails can be used to assess the health of old growth forests. 
Protecting habitat based on these small animals may also protect 
habitat for other more charismatic species.
Insect Extinctions and Endangerment
    The Xerces blue butterfly, Antioch katydid, Tobias' caddisfly, 
Roberts' alloperlan stonefly, Colorado burrowing mayfly, and Rocky 
Mountain grasshopper all were driven extinct by humans.
    In the United States, the Natural Heritage Program lists 210 insect 
species either as presumed extinct or as missing and possibly extinct. 
Many scientists believe that these numbers underestimate actual insect 
extinction and that many hundreds, or perhaps thousands, of species 
have gone extinct unnoticed in North America.
    The USFWS lists 57 insects as either endangered or threatened but 
many more may be on the brink of extinction. To illustrate, 4.6% of the 
endangered animal species listed by the USFWS, are insects, yet insects 
make up more than 72% of global animal diversity. Of all vertebrates 
that are known to exist in the United States, approximately 18% are 
listed as threatened or endangered. If we assume that insects and 
vertebrates face similar destructive forces at similar levels of 
intensity, then one should expect to find on the order of 16,000 at-
risk insect species in the United States alone. Although this 
assumption oversimplifies the situation, it shows that the 57 insects 
listed as endangered and threatened by USFWS are a significant 
underestimate. The Natural Heritage Program may be closer to the mark 
for select groups of insects for which we have more information. It 
estimates that 20% of stoneflies, 10% of tiger beetles 7% of 
butterflies, and 8% of dragonflies and damselflies are critically 
imperiled or imperiled in the United States. In addition, the Xerces 
Society has produced a Red List of Pollinator Insects of North America. 
The Red List is the most complete assessment of the status of the 
continent's at-risk pollinators. Fifty butterflies and moths and 51 
bees are listed as critically imperiled, imperiled or vulnerable.
Invertebrates and the Endangered Species Act
    The first invertebrate listed under the Endangered Species Act was 
the Schaus swallowtail butterfly on April 28, 1976. This was followed 
by six California butterflies on June 1, 1976.
    The Endangered Species Act has always treated vertebrates more 
generously than it does invertebrates. The Act authorizes the 
protection of species, subspecies, and ``distinct population segments'' 
of vertebrates, yet only species and subspecies of invertebrates may be 
protected. This provision was a compromise between the House of 
Representatives and the Senate in 1978 after the House voted to 
eliminate protection for invertebrates altogether. Insects are also 
singled out as the only group that cannot be protected if a particular 
species is determined by the Secretary of Agriculture to be an 
agricultural pest. However, this provision has never been used, as any 
serious pest would not likely be an endangered species.
    Even with these restrictions, the Endangered Species Act remains 
one of the most important environmental laws in the world for the 
conservation of insects and other invertebrates, and the habitat upon 
which they depend. There is no other national law in the U.S. that 
specifically protects invertebrates and their habitats.
The Xerces Society's Efforts to Protect At-Risk Invertebrates
    The Xerces Society works through all available methods to protect 
invertebrates and their habitats. We consult with private landowners, 
providing them with the information and tools to protect habitat on 
private lands. We join efforts with federal, state and county agencies 
to restore, enhance and protect habitat on public lands. The Xerces 
Society works on cooperative efforts with multiple stakeholders to 
protect the most vulnerable animals in the country. The Xerces Society 
has a very positive, cooperative relationship with the USFWS, other 
federal, state and county land management agencies as well as farmers 
and other landowners.
    When a species is at risk of extinction, the formal listing of that 
species under the Endangered Species Act and the designation of 
critical habitat are tools that spur conservation and research on these 
animals and engage agencies and private landowners. In my experience, 
the United States Endangered Species Act is one of the most powerful 
tools for the conservation of these animals and their habitats in the 
world.
Using Science (Not Politics) to Protect Species
    Over the past seven years there have been many instances of 
decisions at the USFWS that were based on politics rather than the 
available science. Many of these have involved insects and other 
invertebrates. One of the most egregious examples of this was in the 
designation of critical habitat for the Hawaiian picture-wing flies.
    After pressure from conservation groups, the USFWS designated 11 
species of Hawaiian picture-wing flies (Drosophila aglaia, D. 
differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. musaphilia, 
D. neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. 
tarphytrichia) as endangered, and one species (D. mulli) as threatened. 
But in 2006, it proposed a total of 18 acres as critical habitat for 
the flies. This is less than 1 1/2 acres per fly, which was not 
adequate for survival of the species nor was it scientifically or 
legally defensible.
    There have also been many other cases of abuse. To see a more 
complete list of invertebrates where science has taken a back seat to 
politics in ESA decisions, please see appendix 1.
Politics Still Often Trumps Science in Listing and Critical Habitat 
        Decisions
    In our efforts to protect these animals we continue to see 
recommendations of USFWS scientists overruled by their superiors. This 
interference has a negative impact on the recovery of the species 
involved as well as a demoralizing effect on USFWS scientists who are 
trying to do their job. In the long run, these decisions cost tax 
payers more money as the issues will need to be resolved in court.
Salt Creek Tiger Beetle (Cicindela nevadica lincolniana) Critical 
        Habitat
    A multi-agency team of scientists initially proposed over 36,000 
acres of critical habitat for the recovery of the Salt Creek Tiger 
Beetle. At the prompting of the USFWS, this team revised the proposal 
to 15,000 acres of critical habitat. The USFWS then proposed only 1,795 
acres of critical habitat. One scientist on the team has called the 
decrease from 15,000 acres to 1,795 acres ludicrous. This decision was 
not based upon the scientific information available regarding the 
species and the area needed for its recovery.
    On October 6, 2005, the USFWS listed the Salt Creek tiger beetle as 
endangered under the U.S. Endangered Species Act. The beetle is only 
found in a few remnant saline marshes near Lincoln, Nebraska. The Salt 
Creek tiger beetle is one of the rarest insects in the world and 
occupies one of the most restricted ranges of any insect in the United 
States.
    Since the late 1800s, over 90 percent of the Salt Creek tiger 
beetle's saline marsh habitat has been destroyed or severely degraded 
through commercial, residential, industrial, and agricultural 
development and road projects. Although formally much more common only 
three small populations of this beetle remain, and the known adult 
population size in over the last three years has fluctuated from a low 
of only 153 individuals to a high of just over 600 individuals.
    The Salt Creek tiger beetle is considered an ``indicator'' species. 
Its presence signals the existence of a healthy saline marsh--the 
groundwater feeding these wetlands pass through rock formations 
containing salts deposited by an ancient sea that once covered 
Nebraska. Over the past century, more than 230 species of birds have 
been reported using eastern Nebraska saline marshes, including the 
least tern, piping plover, and peregrine falcon. These saline wetlands 
are also home to several salt-adapted plants that are found nowhere 
else in Nebraska. In addition, a healthy saline marsh provides numerous 
benefits for people, including water purification and flood control, as 
well as an area for bird watching and other outdoor recreation.
    On May 4, 2005 a team of scientists from the University of 
Nebraska-Lincoln, Nebraska Game and Parks Commission, Lower South 
Platte Natural Resource District and the Nebraska Field Office of the 
U.S. Fish and Wildlife Service produced an ``Advance Concept Paper'' 
proposing 36, 906 acres of critical habitat for the Salt Creek tiger 
beetle.
    USFWS staff at the regional office subsequently asked the authors 
of the Advance Concept Paper to revise their paper and reduce the 
acreage of the critical habitat proposal. The authors revised their 
recommendation to 15,000 acres of critical habitat, distributed across 
six recovery areas. Team members expressed that 15,000 acres was the 
bare minimum amount of habitat needed in order for the species to 
recover.
    The USFWS then proposed a total of only 1,795 acres of critical 
habitat in four areas (Proposed Rule Federal Register / Vol. 72, No. 
238 / Wednesday, December 12, 2007). There was no scientific rationale 
for the USFWS to cut over 13,000 acres from the previous proposal. The 
USFWS has not provided any scientific justification for how 1,795 acres 
would allow the recovery and long term maintenance of the Salt Creek 
tiger beetle. One of the scientists who co-authored the Advanced 
Concept Paper has called the decrease from 15,000 acres to 1,795 acres 
``ludicrous''.
    The best available scientific evidence as presented in the Advanced 
Concept Paper clearly shows that the current proposed critical habitat 
is woefully inadequate for the recovery and long term maintenance of 
the Salt Creek Tiger Beetle.
Miami Blue Butterfly (Hemiargus thomasi bethunebakeri) Listing
    This butterfly was originally petitioned for listing when there 
were less than 100 individuals known to exist. The field office and 
region prepared an emergency rule to list the species because it was 
limited to one population and threats were imminent. The DC office 
failed to follow through on the listing even though all of the 
information available showed that listing was both scientifically and 
legally justified. The number of butterflies remains critically low yet 
the USFWS has not taken action to list this species.
    The Miami Blue is endemic to Florida. The range of this butterfly, 
which once occurred along the Florida coast (from about St. Petersburg 
to Daytona) as well as several western barrier islands including 
Sanibel, Marco Island, and Chokoloskee south through the Florida Keys 
to Key West and the Dry Tortugas, has been shrinking for many years. 
Ever-expanding urbanization and the associated loss of coastal habitat 
have all but eliminated the Miami blue from the south Florida mainland. 
In recent years, this alarming trend of decline has continued in the 
Florida Keys. Once widespread and locally abundant, the butterfly has 
become considerably rarer and was thought to have been extinct with no 
verified records for the period from March 1992 to October 1999. The 
species was rediscovered on 29 November 1999 as part of a small 
breeding colony within the boundaries of Bahia Honda State Park on 
Bahia Honda Key.
    In June of 2000 the North American Butterfly Association petitioned 
the USFWS to list the Miami Blue as a federally endangered species on 
an emergency basis. The petitioners cited habitat loss and 
fragmentation, mismanagement of existing habitat (e.g. fire 
suppression), unethical collecting, and the influence of mosquito 
control chemicals as threats to this butterfly's continued survival.
    On January 3, 2002, the USFWS announced a positive 90-day finding 
for the petition to list the Miami blue, initiated a status review, and 
sought data and information from the public. In this finding, the USFWS 
indicated that the Miami blue appeared to be in danger of extinction, 
but did not believe the threats to be so great that extinction was 
imminent. However, the USFWS indicated that they could issue an 
emergency rule when an imminent threat posed a significant risk to the 
well-being of the species.
    In June 2002, the USFWS initiated a contract with the McGuire 
Center for Lepidoptera and Biodiversity at the University of Florida to 
conduct a one-year status survey of the Miami blue throughout its 
historic Florida range and to monitor the known population at Bahia 
Honda State Park. Although extensive field surveys were conducted, no 
additional wild populations of the Miami blue were discovered. A 
detailed assessment of the Bahia Honda State Park population confirmed 
a series of small breeding colonies with a total estimate of less than 
100 individuals at any time.
    As the USFWS dragged their feet the State of Florida took action. 
On December 10, 2002 the State of Florida declared the Miami blue to be 
an endangered species on an emergency basis. This was one of the very 
few times that the State of Florida had taken emergency action for any 
reason, and the first time it had done so on behalf of an endangered 
species. Although this was a good step state listing does not provide 
the comprehensive protection of the ESA. On November 19, 2003, the 
State of Florida unanimously approved the species management plan and 
the resulting addition of the Miami blue to Florida's endangered 
species list. The listing by the State of Florida did provide increased 
protection for this species and provided some funding for a captive 
breeding program. In February 2003, under consultation of the USFWS, 
Florida DEP, and the State of Florida (Florida Fish and Wildlife 
Conservation Commission), a captive colony of the Miami blue was 
initiated at the University of Florida in Gainesville from wild eggs 
collected at Bahia Honda State Park.
    The field office and region prepared an emergency rule to list the 
species because it was limited to one population and threats were 
imminent. The DC office failed to follow through on the listing even 
though all of the information available showed that listing was both 
scientifically and legally justified. In December 2004 the USFWS 
acknowledged that the butterfly merited protection, but declined to add 
it to the federal list of endangered species citing lack of funding. 
They subsequently put it on the candidate list.
    Although the state of Florida became involved, the recovery of the 
Miami Blue is anything but certain. Initial areas slated for 
reintroduction and recovery were disallowed because of the perceived 
need for mosquito control. As a result, initial reintroductions were 
delayed and divided into Phase I and Phase II areas-making aggressive 
recovery actions more challenging.
    In 2006, a small number of additional Miami Blue colonies were 
discovered in the Key West National Wildlife Refuge. The University of 
Florida is currently working with the State of Florida and the Refuge 
biologists to determine the exact colony locations and estimates of the 
population sizes.
    Dr. Jaret Daniels, a butterfly expert with the McGuire Center for 
Lepidoptera and Biodiversity (University of Florida), suggests that 
although the captive propagation program has gone well, the current 
species' distribution, dangerously low wild population numbers, limited 
areas available for reintroduction, and limited funding leaves the 
butterfly extremely vulnerable to extinction. He believes that federal 
listing would benefit the recovery of this species because of access to 
additional funding And better protection from threats such as mosquito 
control.
Island Marble Butterfly (Euchloe ausonides insulanus) Listing
    The USFWS denied listing this species, which has fewer than 1,000 
estimated individuals left in its population. There continue to be 
multiple threats to the survival of this butterfly. The field office 
initially was preparing a rule to list the species, but the regional 
office failed to follow though with the listing.
    The Island Marble butterfly was historically found in British 
Columbia, on Gabriola Island and on Vancouver Island from Nanaimo in 
the north, southward along the eastern edge of the island to Beacon 
Hill Park, Victoria. It appears that this butterfly inhabited coastal 
grasslands, and may have taken advantage of forage in adjacent prairies 
associated with Garry Oak woodlands. It had not been seen since 1908 
and was believed to be extinct. In 1998, one small population of the 
Island Marble was found on San Juan Island in Washington State.
    In 2005, two hundred twenty-five surveys were conducted at 110 
potential Island Marble sites by staff from the Washington Department 
of Fish and Wildlife, USFWS, Washington Department of Natural 
Resources, the Xerces Society, and local volunteers. As a result of 
these searches, Island Marble butterflies were found at eleven new 
locations, although none of the sites had more than five individuals. 
The surveys also helped determine the extent of the original population 
at San Juan Island National Historical Park American Camp. The vast 
majority of the butterflies--and the only viable populations--are 
located at American Camp. Many of the individuals found at the new 
locations are likely strays from this main site. The total estimated 
population for the butterfly was under 1,000 individuals.
    Responding to pressure from conservation groups in February 2006, 
the USFWS issued a positive 90-day finding for the Island Marble 
Butterfly, determining that protection may be warranted and initiating 
a status review of the species.
    The field office initially was preparing a rule to list the 
species, but the regional office failed to follow though with the 
listing. Until September 2006, in conversations with the USFWS 
biologists preparing the 12 month finding they routinely stated that 
the species met all of the criteria for listing. A few weeks before the 
decision on the listing was to be announced, the same biologists 
informed me that they were no longer allowed to discuss the Island 
Marble butterfly. In November of 2006 the USFWS denied protection to 
this butterfly with no legal or scientific justification.
    To the credit of the USFWS, they have done some work to conserve 
this species since the listing decision was made (the Xerces Society is 
part of an Island Marble working group). However their effort falls 
short of real protection under the Endangered Species Act. As of 2007, 
the population numbers were still low and possibly declining.
Conclusion
    The Xerces Society for Invertebrate Conservation has worked for 
more than 37 years to conserve habitat for our most vulnerable animals. 
We often work with the U.S. Fish and Wildlife Service to protect these 
animals. However, the USFWS has been ignoring science in many of its 
endangered species decisions. For the sake of the conservation of many 
important species, decisions need to be made based on science not 
politics.
    All statements made in this testimony are mine alone. That said I 
would like to thank Dr. Jaret Daniels, McGuire Center for Lepidoptera 
and Biodiversity (University of Florida), Steve Spomer (University of 
Nebraska, Lincoln), and Noah Greenwald and Bill Snape, (Center for 
Biological Diversity) for clarification on issues regarding the species 
mentioned above and on the ESA process.
Appendix 1.
    The USFWS has violated the critical habitat provisions of the 
Endangered Species Act in the following invertebrate species:
Peck's Cave Amphipod (Stygobromus pecki) Critical Habitat
    The final critical habitat designation included just 38.5 acres (72 
Fed. Reg. 39247, July 17, 2007) which is much less than the total 
extent of habitat identified as essential to the conservation of the 
species by USFWS scientists.
Comal Springs Riffle Beetle (Heterelmis comalensis) Critical Habitat
    The final critical habitat designation included just 30.3 acres (72 
Fed. Reg. 39247, July 17, 2007) which is much less than the total 
extent of habitat identified as essential to the conservation of the 
species by USFWS scientists.
Comal Springs Dryopid Beetle (Stygoparnus comalensis) Critical Habitat
    The final critical habitat designation included just 39.5 acres (72 
Fed. Reg. 39247, July 17, 2007) which is much less than the total 
extent of habitat identified as essential to the conservation of the 
species by USFWS scientists.
Pecos Assiminea Snail (Assiminea pecos) Critical Habitat
    The critical habitat rule for this species dramatically reduced 
acreage protection from 1,523 acres to 396.5 acres. 70 Fed. Reg. 46303 
(August 9, 2005).
Koster's Tryonia Snail (Juturnia kosteri) Critical Habitat
    The critical habitat rule for this species dramatically eliminated 
acreage protection from 1,127 acres to zero acres. 70 Fed. Reg. 46303 
(August 9, 2005).
Noel's Amphipod (Gammarus desperatus) Critical Habitat
    The critical habitat rule for this species dramatically eliminated 
acreage protection from 1,127 acres to zero acres. 70 Fed. Reg. 46303 
(August 9, 2005).
Roswell Springsnail (Pyrgulopsis roswellensis) Critical Habitat
    The critical habitat rule for this species dramatically eliminated 
acreage protection from 1,127 acres to zero acres. 70 Fed. Reg. 46303 
(August 9, 2005).
Helotes Mold Beetle (Batrisodes venyivi) Critical Habitat
    The final rule in question was finalized for this Bexar County (TX) 
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the 
proposed critical habitat rule sought to protect 958 acres, the final 
rule shrunk this to just 164 acres.
Robber Baron Cave Spider (Cicurina baronia) Critical Habitat
    The final rule in question was finalized for this Bexar County (TX) 
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the 
proposed critical habitat rule sought to protect 395 acres, the final 
rule shrunk this to just 57 acres.
Madla Cave Meshweaver (Cicurina madla) Critical Habitat
    The final rule in question was finalized for this Bexar County (TX) 
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the 
proposed critical habitat rule sought to protect 1,811 acres, the final 
rule shrunk this to just 201 acres.
Braken Bat Cave Meshweaver (Cicurina venii) Critical Habitat
    The final rule in question was finalized for this Bexar County (TX) 
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the 
proposed critical habitat rule sought to protect 481 acres, the final 
rule shrunk this to just 85 acres
Government Canyon Bat Cave Meshweaver (Cicurina vespera) Critical 
        Habitat
    The final rule in question was finalized for this Bexar County (TX) 
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the 
proposed critical habitat rule sought to protect 116 acres, the final 
rule eliminated all critical habitat and protected zero acres.
Government Canyon Bat Cave Spider (Neoleptoneta microps) Critical 
        Habitat
    The final rule in question was finalized for this Bexar County (TX) 
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the 
proposed critical habitat rule sought to protect 304 acres, the final 
rule eliminated all critical habitat and protects zero acres.
Ground Beetle (Rhadine exilis) Critical Habitat
    The final rule in question was finalized for this Bexar County (TX) 
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the 
proposed critical habitat rule sought to protect 7,557 acres, the final 
rule shrunk this to just 644 acres.
Ground Beetle (Rhadine Infernalis) Critical Habitat
    The final rule in question was finalized for this Bexar County (TX) 
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the 
proposed critical habitat rule sought to protect 5,083 acres, the final 
rule shrunk this to just 686 acres.
Cokendolpher Cave Harvestman (Texella cokendolpheri) Critical Habitat
    The final rule in question was finalized for this Bexar County (TX) 
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the 
proposed critical habitat rule sought to protect 395 acres, the final 
rule shrunk this to just 57 acres.
Riverside Fairy Shrimp (Streptocephalus woottoni) Critical Habitat
    The final rule in question was finalized on April 12, 2005 (70 Fed. 
Reg. 19153) and protects just 306 acres despite earlier proposed rules 
that protected anywhere from 5,795 acres to 12,060 acres. Without 
rational explanation, or even acknowledgement, it contradicts the 
Riverside fairy shrimp's recovery plan, scientific peer reviewers, and 
USFWS scientists. It falsely identifies many essential habitat areas as 
not essential.
                                 ______
                                 
    Mrs. Napolitano. Thank you.
    The reason I am a little bit antsy is we are going to be 
having votes in a few minutes it looks like. In fact, they may 
be calling for them now, so we will take possibly one more 
speaker and then we will have to recess.
    We can finish? OK. We may be able to finish, but only if we 
hold to our five minute limit if you wouldn't mind.
    Mr. Black. I apologize.
    Mrs. Napolitano. No problem.
    Mr. David Parsons, Science Fellow from the Rewilding 
Institute? Thank you for being here, sir.

                STATEMENT OF DAVID R. PARSONS, 
              SCIENCE FELLOW, REWILDING INSTITUTE

    Mr. Parsons. Yes, ma'am. Thank you, Madam Chairman. It is a 
high honor to be testifying before this Committee.
    I have some supporting documents for my written testimony 
that I would like to enter into the record with your 
permission.
    Mrs. Napolitano. Without objection. So ordered, sir.
    Mr. Parsons. Thank you.
    I have one quick rebuttal to a comment that was made by the 
Ranking Republican Member. I believe that was Congressman 
Smith. He stated that the law requires the killing of all 
Mexican wolves that attack livestock.
    I am the primary author of the Federal regulation that 
applies to all of the Mexican wolves that live in the wild 
today. That regulation was written to allow us the flexibility 
to manage conflict, but not at the expense of conserving the 
species, the Mexican wolf. I can assure you there is no 
provision in that regulation that requires the killing of 
Mexican wolves that attack livestock.
    Thirty-two years after being listed as endangered under the 
Endangered Species Act, the Mexican gray wolf remains the most 
endangered mammal in North America and the most endangered 
subspecies of gray wolf in the world. Less than 50 are known to 
exist in the wild, and around 300 live in captivity.
    Under the Bush Administration, the U.S. Fish and Wildlife 
Service has failed to conserve and recover the Mexican wolf as 
mandated by the Endangered Species Act because it has abandoned 
the application of science and mismanaged the program. Since 
March of 1998, a total of 99 wolves have been released through 
the end of the year 2006, yet less than 50 survive today.
    The approved objective for this initial reintroduction 
project was the establishment of a viable, self-sustaining wild 
population of at least 100 Mexican wolves by the end of 2006. 
That was to happen in the 7,000 square mile Blue Range Wolf 
Recovery Area in southwest New Mexico and southeastern Arizona. 
The Service has failed to meet this objective by all measures, 
and there is no evidence that the population is on a growth 
trajectory.
    Twenty-six years after adoption of a recovery plan and 10 
years following the initial reintroduction, the total wild 
population of Mexican wolves is only 52 animals and three 
successful breeding pairs at the end of the year 2007. The 
population is lower now than it was at the end of 2003.
    In my opinion, the recovery of the Mexican wolf cannot 
succeed under the current policies and management practices of 
the Service and a body called the Adaptive Management Oversight 
Committee to which the Service has delegated its decision 
authority under a memorandum of understanding for the 
reintroduction project.
    The complex web of bureaucratic, multi-agency authority 
sharing, deference to special interests that oppose recovery, 
mismanagement of public lands, the promulgation of operational 
procedures that cause excessive management removal of wolves, 
inattention to science and the indefinite suspension of the 
recovery planning process are precluding the Service from 
meeting the Endangered Species Act mandate for recovery of the 
Mexican gray wolf.
    The poster child of mismanagement is the draconian wolf 
control policy formerly implemented as Standard Operating 
Procedure 13 by the Adaptive Management Oversight Committee and 
approved by the Service. This procedure requires the permanent 
removal or killing of any wolf that is known to or likely to 
have killed three head of livestock over the span of a year 
regardless of the consequences to wolf recovery.
    This may be what the Congressman was referring to, but it 
is a discretionary authority, not a hardwired provision of the 
rule.
    The Service releases wolves with one hand and kills wolves 
with the other. It is my professional opinion that the Service 
and its cooperating agencies are prioritizing wolf control over 
wolf recovery to the point of threatening the second 
extrication of the critically endangered Mexican wolf in the 
wild. Ultimately this may result in the complete extinction of 
the Mexican wolf subspecies since the captive breeding program 
is intended only as a temporary measure to achieve recovery in 
the wild.
    I will briefly outline some solutions that can correct 
these problems. We need to abolish Standard Operating Procedure 
13 and establish benchmarks for population growth to meet the 
conservation standard of the Act. The Service should reclaim 
its decision authority from the Adaptive Management Oversight 
Committee because they are not getting the job done.
    We should reinstate recovery planning, which the Service 
has put into permanent suspension as far as we can tell. We 
need to I think develop and introduce legislation that might 
help resolve some of these problems, such as perhaps legislation 
that would allow the compensation of ranchers to voluntarily retire 
Federal grazing permits in the Wolf Recovery Area.
    Thank you very much for this opportunity to comment.
    [The prepared statement of Mr. Parsons follows:]

    Statement of David R. Parsons, Carnivore Conservation Biologist/
                Science Fellow, The Rewilding Institute

OVERVIEW OF THE ISSUE
    The Mexican gray wolf (Canis lupus baileyi) was completely 
extirpated from the wild by a United States government eradication 
program throughout its historical range in the U.S. and Mexico and 
rescued from the brink of extinction through the captive breeding of 
just 7 survivors.
    Thirty-two years after receiving protection under the Endangered 
Species Act (ESA), the Mexican gray wolf remains the most endangered 
mammal in North America and the most endangered subspecies of gray wolf 
in the world.
    The U.S. Fish and Wildlife Service (FWS) has failed in its duty 
under the ESA to conserve and recover the Mexican wolf because it has 
abandoned the application of science and consequently mismanaged the 
program.
    Twenty-six years after adoption of a recovery plan and 10 years 
following initial reintroductions, the total wild population of Mexican 
wolves was only 52 animals and 3 successful breeding pairs at the end 
of 2007 (Figure 1).
    The approved objective for this initial reintroduction project is 
the establishment of a viable, self-sustaining wild population of at 
least 100 wolves and 18 breeding pairs by the end of 2006 in the 7,000 
square mile Blue Range Wolf Recovery Area in SW New Mexico and SE 
Arizona (Figure 2). The FWS has failed to meet this objective by all 
measures; and there is no evidence that the population is on a growth 
trajectory.
    Under current policies and management practices it appears unlikely 
that recovery of the Mexican wolf will succeed. A complex web of 
bureaucratic multi-agency authority sharing, deference to special 
interests that oppose recovery, mismanagement of public lands, the 
promulgation of operational procedures that cause excessive management 
removal of wolves, inattention to science, and the indefinite 
suspension of the recovery planning process are precluding the FWS from 
meeting the Endangered Species Act (ESA) mandate for recovery of the 
endangered Mexican wolf.
    It is my professional opinion that the FWS and its cooperating 
agencies are prioritizing wolf control over wolf recovery of the 
endangered Mexican gray wolf to the point of threatening the second 
extirpation of the Mexican wolf in the wild; ultimately, this may 
result in the complete extinction of the Mexican wolf since the 
captive-breeding program is intended as a temporary measure to achieve 
recovery in the wild.
BACKGROUND
    The FWS approved the Mexican Wolf Recovery Plan in 1982 which 
called for reintroduction of Mexican wolves, using the rescued captive 
stock of certified pure Mexican wolves, to at least two areas within 
their historic range. Following the preparation of an Environmental 
Impact Statement (EIS), the Secretary of the Interior signed a Record 
of Decision in early 1997 authorizing the release of one experimental 
non-essential population (per Section 10(j) of the ESA) into the Blue 
Range Wolf Recovery Area (BRWRA; Figure 2).
    Section 10(j) of the ESA allows the Secretary of the Interior to 
authorize such releases of experimental populations only ``if the 
Secretary determines that such release will further the conservation of 
such species.'' The ESA defines ``conservation'' as: the use of all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this Act are no longer necessary--in other words, 
recovery and delisting of the species.
    The BRWRA comprises all of the Gila National Forest in southwestern 
New Mexico and all of the Apache portion of the Apache-Sitgreaves 
National Forest in southeastern Arizona--an area of about 7,000 square 
miles (Figure 2). Ninety-five percent of the area consists of public 
national forest lands.
    The release of wolves began in 1998, and 99 wolves were released to 
the BRWRA by the end of 2006. None were released in 2007.
    A special rule (50 C.F.R. Sec. 17.84(k)), promulgated under 
provisions of Section 10(j) of the ESA, specifies circumstances under 
which Mexican wolves in the BRWRA population may be harassed, killed, 
or removed:
      Wolves may be harassed when in proximity to people, 
livestock, and pets.
      Wolves may be killed in self defense or in defense of the 
lives of other humans; when wolves are in the act of attacking 
livestock on private or tribal property; and when wolves are killed by 
livestock guarding dogs.
      The rule authorizes, but does not require, the FWS to 
implement management measures for additional taking (including killing) 
of wolves for various purposes specified in the rule, primarily to 
resolve conflicts between wolf restoration and human activities, 
especially livestock grazing. But this additional taking must not 
preclude progress toward recovery of Mexican wolves (ESA 
Sec. 10(j)(2)(A)).
    The final EIS (page 2-16) affirms the FWS's recognition, in 1996, 
of its duty to conserve and recover Mexican wolves by stating that it 
will use the ``greatest degree of management flexibility'' granted 
through discretionary rule provisions to achieve ``the least impact on 
private activity consistent with wolf recovery'' (emphasis added).
    Project authorizing documents mandate the use of an ``adaptive 
management'' process for project decisions. Under adaptive management, 
actions and policies are to be treated as scientific experiments where 
certain outcomes are hypothesized. Anticipated outcomes are compared 
with actual outcomes and adaptations are guided by what has been 
learned through research, monitoring, and data assessment.
    Since October 31, 2003, management of the BRWRA wolf population has 
been carried out by a six-agency decision-making body, the Mexican Wolf 
Adaptive Management Oversight Committee (AMOC), established by a 
Memorandum of Understanding.
    The most notable management measure authorizing the killing and 
permanent removal of wolves is Standard Operating Procedure 13 (SOP 
13), a discretionary management measure adopted by the AMOC and 
approved by the FWS which requires the removal or killing of wolves 
involved in three fatal livestock depredation incidents in the span of 
one year, even if recovery is precluded by its implementation.
STANDARD OPERATING PROCEDURE 13
    In October 2005, the AMOC, with FWS approval, formally adopted SOP 
13.
    Under provisions of SOP 13, ``Wolves known or likely to have 
committed three depredation incidents within a period of 365 days shall 
be permanently removed from the wild as expeditiously as possible.'' 
Permanent removal includes live capture with subsequent placement in 
captivity and shooting wolves in the wild. Wolf removals under SOP 13 
are punitive and mandatory.
    SOP 13 requires permanent removal of each offending wolf regardless 
of important biological factors such as population numbers, genetic 
value, reproductive status, or the presence of dependent pups.
    SOP 13 places no cap on the number of wolves that will be 
permanently removed from the BRWRA and establishes no population floor 
below which its provisions would be suspended.
    Since its implementation, Mexican wolf removals have spiked, 
undoing all progress towards their recovery in the wild (Figures 1 and 
4).
    FWS approved SOP 13 despite warnings from experts in the Three-Year 
Review (2001; ``Paquet Report'') that progress towards recovery would 
not occur without a reduction in wolf mortalities and management 
removals.
MEXICAN WOLF REINTRODUCTION PROJECT--STATUS REVIEW
    The objective of the authorized reintroduction project is to 
establish a viable, self-sustaining wild population of at least 100 
Mexican wolves in the BRWRA by the end of 2006--nine years following 
the initial releases in 1998. Such a population was predicted to 
include 18 breeding pairs.
    The FWS has failed to meet this objective by all measures; and 
there is no evidence that the population is on a growth trajectory.
    The estimated population at the end of 2007 was 52 wolves and only 
3 breeding pairs. The population has actually declined since the end of 
2003, and the number of breeding pairs has not increased over this 4-
year period (Figure 1).
    Permanent removal and lethal control by agency managers of wolves 
that depredate livestock is the most significant cause of the 
population decline and lack of progress toward the reintroduction 
objective (Figure 3).
    Given that all Mexican wolves stem from only 7 founders, management 
of population genetics is critically important. Recent peer-reviewed 
research has documented genetic deficiencies and reduced reproductive 
fitness in the wild population and recommended measures to restore the 
genetic integrity and fitness of the wild population--a process 
referred to as ``genetic rescue.'' Yet, the FWS has established no 
formal objectives or procedures for managing and improving the genetic 
composition of the wild population.
    The Association of Zoos and Aquariums, which manages the captive 
population of Mexican wolves, requested that the FWS implement ``a 
moratorium on lethal control and permanent removal (rescind or suspend 
SOP13) of Mexican wolves in the Blue Range Wolf Recovery Area until an 
expert taskforce on genetic issues can be convened to provide guidance 
to these actions.'' (Letter to Dr. Benjamin Tuggle, SW Regional 
Director, January 2, 2008; emphasis added).
    A formal resolution unanimously passed by the American Society of 
Mammalogists at its 2007 annual meeting calls upon the FWS to expedite 
a revision of the Mexican Wolf Recovery Plan; suspend all predator 
control directed at Mexican gray wolves (currently carried out under 
SOP 13) at least until the 100-wolf goal of the current reintroduction 
program has been achieved; and protect wolves from the consequences of 
scavenging on livestock carcasses, which can habituate wolves to 
preying on stock causing preventable conflicts.
    New Mexico Governor Bill Richardson has called for the immediate 
suspension of and ultimately revising SOP 13, but his request has not 
been acceded to. In his July 6, 2007, statement, the Governor said: 
``The lethal removal of a female wolf, that leaves pups with a single 
parent, is a setback to the Mexican Gray Wolf Recovery Program, and 
signals that it is time to reexamine the protocols under which wolves 
are removed from the wild'' (emphasis added). Recent peer-reviewed 
research has confirmed the Governor's judgment.
    The wild population of Mexican wolves is not ``self-sustaining.'' 
In fact, the population is lower now than at the end of 2003.
    The FWS contracted with the International Union for the 
Conservation of Nature (IUCN) for the required three-year review of the 
BRWRA reintroduction project. A team of scientists led by world-
renowned wolf ecologist Dr. Paul C. Paquet issued their report in June 
2001; they concluded that ``Survival and recruitment rates are far too 
low to ensure population growth or persistence. Without dramatic 
improvement in these vital rates, the population will fall short of 
predictions for upcoming years.''
    The FWS took no action on the substantive recommendations of the 
three-year review or any of the many subsequent requests to rescind SOP 
13, and the Paquet Report's prediction became the current reality.
THE BRWRA POPULATION OF MEXICAN WOLVES IS ``ESSENTIAL'' TO THEIR 
        RECOVERY
    Mexican wolf recovery will ultimately require the establishment of 
at least three or more viable, self-sustaining ``core'' populations 
with habitat connectivity among the core populations.
    An analysis of five potential reintroduction areas presented in the 
final EIS found the BRWRA to be the most suitable site capable of 
meeting the 100+ wolf objective within the probable historic range of 
the subspecies. The Paquet Report estimated that the BRWRA could 
support 200 to 400 Mexican wolves.
    A recent peer-reviewed analysis of areas suitable for wolf recovery 
in western U.S. confirms the high importance of the BRWRA to the 
recovery of the Mexican wolf in the Southwest.
    Given that the BRWRA is arguably the best place to initiate wolf 
recovery in the Southwest and that restoration of a viable, self-
sustaining population of Mexican wolves in the BRWRA is arguably a 
critically essential component to any future recovery plan for the 
Mexican wolf, the FWS can no longer justify an ``experimental non-
essential'' classification for the BRWRA population.
    In the final rule, the FWS states: ``This reintroduction will 
establish a wild population of at least 100 Mexican wolves and reduce 
the potential effects of keeping them in captivity in perpetuity. If 
captive Mexican wolves are not reintroduced to the wild within a 
reasonable period of time, genetic, physical, or behavioral changes 
resulting from prolonged captivity could diminish their prospects for 
recovery'' (emphasis added).
    Recent peer-reviewed research has confirmed genetic deterioration 
of captive populations over time and recommends the return of captive 
animals to the wild as rapidly as possible.
    Endangered species recovery takes place in the wild, not in 
captivity. There is absolutely no legal or biological basis for 
asserting that a captive breeding program alone satisfies the mandate 
of the ESA. Clearly, the existing BRWRA population or any future wild 
population of Mexican gray wolves can no longer be considered 
``nonessential'' to the continued existence of the subspecies. If there 
ever is a case to be made for the first ever designated ``essential'' 
experimental population under Section 10(j) of the ESA, this is it.
RECOVERY PLANNING
    The ESA (Section 4(f)(1)) mandates that the Secretary ``shall 
develop and implement...`recovery plans' for the conservation and 
survival of endangered species.'' The Mexican Wolf Recovery Plan was 
approved and adopted in 1982. FWS policy requires that recovery plans 
be reviewed every five years and updated or revised if they are out of 
date or not in compliance with the ESA. The 1982 Mexican Wolf Recovery 
Plan has never been updated or revised even though it does not contain 
``objective, measurable criteria which, when met, would result in a 
determination...that the species be removed from the list'' (ESA 
Section 4(f)(2)(B)(ii)) nor a detailed plan for fully recovering 
Mexican wolves throughout a significant portion of their historic range 
to a population status that warrants delisting from the ESA.
    The FWS initiated a recovery plan revision process in October 2003 
but suspended that effort in January 2005. The FWS has shown no intent 
to reinitiate the recovery planning process for the critically 
endangered Mexican wolf.
    The FWS has indefinitely suspended recovery planning that would 
apply the best available science to future decisions for achieving 
recovery of the Mexican wolf.
SELECTED EXAMPLES OF MISMANAGEMENT BY FWS
Genetics:
    The unnecessary government killing of the alpha male of the Saddle 
Pack (AM574) illustrates the punitive management that imperils this 
population and the subspecies as a whole. This wolf killed four head of 
cattle by mid April 2004 and plans were made to remove him from the 
wild. The FWS was aware that he was the sixth most genetically valuable 
Mexican wolf for his genetic attributes among the combined wild and 
captive populations. He was the single most genetically valuable wolf 
in the wild; and was, in fact, irreplaceable genetically. This 
important information was documented in internal FWS communications. If 
captured alive, he could have been bred in captivity, and would have 
perpetuated his valuable genetic heritage. Over the next three months 
this wolf ceased killing cattle, and was observed feeding on an elk; it 
may be that, like other wolves that switch prey preferences, he would 
never have killed another cow. Nevertheless, on July 11, 2004, he was 
shot and killed as per FWS instructions.
Adaptive Management:
    On February 12, 2005, Congressman Steve Pearce (NM) convened two 
meetings, in Glenwood and Socorro, New Mexico, to hear constituents' 
concerns about Mexican wolf recovery efforts in New Mexico. Invited 
participants were primarily members or supporters of the livestock 
industry in New Mexico. At the Congressman's request, senior staff from 
FWS's Southwest Region attended the meetings. Conservation 
stakeholders' requests for similar access to FWS officials through 
formal public hearings were denied.
    On April 22, 2005, the AMOC proposed a moratorium on new releases 
of Mexican wolves into the BRWRA, and the new Standard Operating 
Procedure 13. The Rewilding Institute concluded that the proposed 
release moratorium and new wolf control procedures ``will likely 
increase mortality and removal of wolves while reducing population 
supplementation.'' Following public review, AMOC issued a final release 
moratorium and a final SOP 13 with no substantive changes from the 
proposed procedures, despite the fact that project monitoring had 
documented a population decline of about 20% at the end of 2004.
    The Rewilding Institute found that ``[t]he proposed moratorium on 
releases and translocations appears politically motivated, premature, 
and unjustified on the basis of findings of the 3-year review and 
preliminary findings of the 5-year review''. We fail to find any 
compelling justification in support of the necessity or urgency of the 
proposed moratorium and we recommend that it be rescinded 
immediately.'' (Letter to FWS and Arizona Game and Fish Department 
dated May 25, 2005). The Rewilding Institute's comments were formally 
endorsed by several prominent (some world renowned) conservation 
scientists, including Dr. Paul Paquet. Neither the FWS nor the AMOC 
paid any heed to our science-based and expert-endorsed comments.
LITIGATION
    Frustrated over the FWS's failure to conserve and recover the 
federally endangered Mexican gray wolf, twelve conservation 
organizations filed two lawsuits in the United States District Court 
for the District of Arizona on April 30, 2008. Complaints are 
summarized below.
    WildEarth Guardians and the Rewilding Institute vs. United States 
Fish and Wildlife Service and United States Forest Service. [2:08-cv-
00820-ECV]
      FWS has failed to meet the conservation standard of the 
ESA Sec. 10(j). Since the beginning of 2005, permanent wolf removals 
under SOP 13 have precluded progress towards recovery.
      FWS has acted, and is acting, unreasonably and with clear 
error of judgment by adopting and continuing to implement its SOP 13 
wolf removal campaign in the face of a crashing wolf population.
      FWS has arbitrarily and capriciously overstepped the 
bounds of management flexibility and entered into the realm of unlawful 
endangered species predator control.
      FWS's management strategy of killing and trapping its way 
to recovering the Mexican gray wolf, as manifested by its adoption and 
implementation of SOP 13, has not--and cannot--further the conservation 
of the subspecies.
      The Forest Service has failed to meet the conservation 
duty of ESA Sec. 7(a)(1).
      Permanent wolf removals directly resulting from conflicts 
with Forest Service permitted livestock are precluding the attainment 
of recovery benchmarks for the only wild population of Mexican gray 
wolves.
      The Forest Service has unlawfully refused or unreasonably 
delayed developing and implementing a program for the conservation of 
this endangered subspecies.
    Defenders of Wildlife; Center for Biological Diversity; Western 
Watersheds Project; New Mexico Audubon Council; New Mexico Wilderness 
Alliance; University of New Mexico Wilderness Alliance; The Wildlands 
Project; Sierra Club; Southwest Environmental Center; and Grand Canyon 
Wildlands Council vs. Benjamin Tuggle, Region 2, USFWS; Dale Hall, 
Director, USFWS; Dirk Kempthorne, Secretary U.S. Department of The 
Interior; U.S. Fish and Wildlife Service. [4:08-cv-00280-DCB]
      Defendants failed to carry out environmental analysis and 
public review, as required under NEPA, 42 U.S.C. Sec. 4331 et seq., of 
its decision or decisions to establish the Adaptive Management 
Oversight Committee under a Memorandum of Understanding.
      Defendants' decision or decisions to delegate FWS's 
statutory duties and responsibilities to administer the Mexican gray 
wolf reintroduction project will and have harmed the environment and 
will and has caused adverse impacts to the Mexican gray wolf and the 
reintroduction project.
      Defendants failed to carry out environmental analysis and 
public review, as required under NEPA, 42 U.S.C. Sec. 4331 et seq., of 
its decision or decisions to approve and implement SOP 13.
      Defendants' decision or decisions to establish SOP 13 
will and have harmed the environment and will and have caused adverse 
impacts to the Mexican gray wolf and the reintroduction project. 
Further, because there is no other Mexican gray wolf population in the 
wild, the harm extends not just to the reintroduction project but to 
the prospects for the ultimate recovery of the subspecies.
      By the AMOC MOU, Defendants unlawfully subdelegated to 
the other AMOC lead agencies their statutory duty and responsibility to 
``implement...the objectives and strategies'' of the most central 
facets of the Mexican gray wolf recovery.
      The Defendants' decision or decisions to establish the 
Adaptive Management Oversight Committee under a Memorandum of 
Understanding and to approve and implement SOP 13 are counter to the 
FWS's reintroduction environmental impact statement and record of 
decision, final ESA Sec. 10(j) rule, the 1998 Interagency Management 
Plan, and Defendant's overriding ESA obligation to recover the species 
in the wild.
RECOMMENDATIONS
    Direct FWS to abolish SOP 13.0 and develop management protocols for 
addressing wolf conflicts in ways that take into account population 
genetics, demographics and other factors important for making progress 
towards recovery of the critically endangered Mexican gray wolf. 
Benchmarks for population growth must be established. We recommend an 
annual population increase of at least 15% and an annual increase of at 
least 2 breeding pairs.
    Direct FWS to abolish the AMOC and establish a new model for 
interagency participation, reclaim full decision authority for the 
BRWRA reintroduction project, and carry out its duty to conserve 
Mexican gray wolves per the ESA.
    Direct FWS to prepare a legally sufficient recovery plan, under the 
1988 revisions to the ESA, based on modern conservation science within 
the next year.
    Develop and introduce legislation to compensate livestock operators 
within the BRWRA, on a voluntary basis, in exchange for the permanent 
retirement of the public grazing allotments they lease.

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                                 ______
                                 
    Mrs. Napolitano. Thank you so much, Mr. Parsons. We 
appreciate that.
    We have now Mr. Larry Irwin, Principal Scientist, National 
Council for Air & Stream Improvement. Thank you for being here, 
sir.

   STATEMENT OF LARRY L. IRWIN, PH.D., PRINCIPAL SCIENTIST, 
      NATIONAL COUNCIL FOR AIR & STREAM IMPROVEMENT, INC.

    Mr. Irwin. Thank you, Madam Chairman. It is really a 
delight for me to be here today. Like Jerry Franklin, I have 
been involved with the spotted owl for over 20 years and 
involved in providing scientific information to most of the 
governmental deliberations on behalf of that species.
    As most everyone knows, many species that are listed under 
the Endangered Species Act are listed largely because of 
habitat loss and associated population declines. Marking 
progress toward recovery therefore involves reliable answers to 
two primary questions. How many animals are needed, and how 
much habitat is needed to support them? Valid answers to those 
questions require a predictive link between habitat and 
population performance.
    In the case of the northern spotted owl and the recovery 
plan released last week, maps of late successional and old 
growth forests form the backbone of the recovery strategy. That 
is important and reasonable, but it may well surprise you that 
maps of late successional and old growth forests do not predict 
barred owl abundance or their distributions or their population 
performance very well.
    As a result, there are no confident estimates of how much 
habitat is necessary. The same is true for estimating 
consequences to the owl populations from habitat changes from 
implementing Federal forest management plans, such as the BLM's 
whopper. Maps of late successional and old growth forests fail 
the basic scientific litmus of reliability. There remains then 
an unsettling amount of scientific uncertainty for recovery 
planning.
    Now, I concur with the primary elements, the nuts and bolts 
of the recovery plan, but in my view the picture is incomplete, 
and some parts of the picture are underemphasized. I think this 
Committee can do something about that.
    Two primary topics I want to talk about are risk assessment 
and adaptive management. I would like to elaborate just a 
little bit. The threat to recovery from uncharacteristically 
intense wildfires has been raised in this hearing two or three 
times today. I think it remains underestimated.
    Since the 1994 Northwest Forest Plan was implemented, 
unnaturally intense wildfires destroyed several dozen spotted 
owl sites and degraded many more. Certainly climate changes 
portend additional severe fires in the future that would 
disrupt the recovery network and be a problem for recovery.
    Concern for these fires is even elevated because the most 
productive spotted owls occur in the forests that are at the 
highest degree of risk. Recurring drought, forest insect and 
disease epidemics and, as we heard, invading barred owls 
exacerbate those risks.
    The final recovery plan identified them certainly, but 
recommended qualitative or informal analyses of risks within 
the fire prone landscapes. I believe the need for management of 
these landscapes is higher than that, and doing so requires 
formal, quantitative assessments of risk.
    Certainly chronic changes in these forests have created 
negative consequences for the owls that are not well accounted 
for in the final recovery plan. These sites have been 
classified as suitable. The owls are abandoning them. They look 
to us because they have large trees and dense cover as suitable 
habitat. The owls are saying otherwise.
    Something is happening internally, so there is a difficult 
problem we have to attend and, in fact, it is a paradox in that 
the treatments that might improve the habitat for these owls 
and reduce the risk of fire could also degrade habitat quality 
for the owl. That is a first order paradox that requires formal 
attention.
    We have learned recently that habitat for the owl is indeed 
more than late successional and old growth forests. Details of 
forest stand structure, tree species composition, density of 
the vegetation on the ground matter.
    The final plan described adaptive management as a means of 
identifying what those features are and how to apply them in 
management. My concern here is that adaptive management was 
first identified in 1990 to be applied to spotted owls. It has 
yet to be applied, even after three Administrations have gone 
by the wayside.
    So I ask that this Committee provide the funding for the 
appropriate research and the appropriate technical personnel 
to, in fact, do formal risk assessments and truly apply 
adaptive management.
    Thank you very much.
    [The prepared statement of Mr. Irwin follows:]

   Statement of Larry L. Irwin, Ph.D., Principal Scientist, National 
  Council for Air and Stream Improvement, Inc., Stevensville, Montana

    Chairman Rahall and distinguished committee members. I am truly 
honored to speak to you today. I am Larry Irwin, Principal Scientist 
and Western Wildlife Program Manager for the National Council for Air 
and Stream Improvement, Inc., or NCASI. NCASI is a non-profit, 501(c)6 
environmental management and research organization with headquarters in 
Research Triangle Park, North Carolina. Since 1986, I have conducted 
research and contracted other scientists to conduct research on topics 
associated with forestry and various wildlife species, including the 
threatened Northern Spotted Owl, or NSO. Approximately half of our 
research funding comes from member companies; the remainder comes from 
collaborating private, state, or federal natural resource 
organizations.
    I have conducted scientific studies involving habitat relationships 
and population dynamics among Spotted Owls throughout the 3 affected 
states, emphasizing the NSO. I have published over 30 scientific papers 
on NSOs, some 2 dozen of which appeared in peer-reviewed publications. 
Also, I am currently conducting three cooperative studies that involve 
measuring details of habitat conditions for Barred Owls and NSOs that 
occupy the same areas. Barred Owls recently invaded the Pacific 
Northwest and are strongly implicated in ongoing declines of NSO 
populations via competitive interactions.
    By invitation from Dr. Jack Ward Thomas, now an Emeritus Chief of 
the U.S. Forest Service, I served as an observer/advisor to the 
Interagency Committee of Scientists who proposed the primary 
conservation strategy for the NSO in 1990. I wrote the chapter on 
adaptive management for that conservation strategy. The fundamental 
premises of that strategy have endured through subsequent iterations, 
including the recovery plan that was released late last week.
    Like many species, habitat loss and associated population declines 
were among the major reasons the NSO was listed under the ESA. Recovery 
for the Northern Spotted Owl is predicated on preserving and restoring 
late-successional and old-growth forests (LSOG). Yet, a recurring 
challenge with recovering the Northern Spotted Owl and many other 
species in peril involves reliable answers to questions regarding how 
many animals and how much habitat are needed.
    No one questions that LSOG forests are highly important to the 
ecology of NSOs. Yet, it may surprise you that after at least 
$50million of investment in research and monitoring over the past 30 
years, maps of LSOG forests do not predict NSO distributions very well. 
Perhaps more surprising, there are no strong correlations between NSO 
demographic performance and LSOG forests that would allow confident 
predictions of NSO population response to the recovery plan or to 
federal forest management plans based upon amounts and distributions of 
such habitat. Make no mistake, enormous scientific progress has been 
made, but an unsettling amount of scientific uncertainty remains.
    Therefore, my purposes today are to address two topics described 
within the Final Recovery Plan for the Northern Spotted Owl that could 
be boosted by this Committee:
    1.  Risk Assessment as a means of responding to threats to NSO 
populations in fire-prone forests; and
    2.  Adaptive Management as a means of rapidly reducing scientific 
uncertainty by improving the ability to predict owl demographic 
performance in response to habitat provided through the recovery 
strategy.
    A major take-home message is that there is a great deal of 
ecological variability within and among various forest types occupied 
by the NSO. Much of that variability was acknowledged but incompletely 
described in the Recovery Plan. Ecological variability means that a 
sustainable recovery strategy for NSOs must be multi-faceted and 
specifically orchestrated to learn from experience. I illustrate my 
points by briefly reporting on examples from research on NSOs.
I. RISK ASSESSMENT FOR SPOTTED OWLS IN FIRE-PRONE FORESTS
    I concur with recent views expressed by Courtney et al. (2008) that 
the threat to NSO populations from uncharacteristically intense 
wildfires was been widely under-estimated in the draft recovery plan, 
and I find that remains true in the Final Recovery Plan as well. That 
may have occurred because habitat loss via clearcut logging was 
considered to be a greater and more immediate concern. Also, a 
significant portion of the geographic range of the NSO involves moist 
forests less prone to uncharacteristic fires. Or, it may have occurred 
because NSOs have been observed persisting through some wildfires. 
Moreover, it might have seemed logical that wildfires are natural and 
therefore perhaps an important part of sustaining some forest 
ecosystems. I share the latter view to a limited extent.
    However, dry fire-prone forests comprise perhaps as much as 40% of 
the geographic range of the NSO, so their contributions to recovery are 
paramount. And we know that intense wildfires destroy habitats. For 
example, unnaturally intense fires, such as the Tyee fires in the 
eastern Washington Cascades in 1994 and the Biscuit fires in 
southwestern Oregon in 2002, destroyed several dozen NSO sites. The 
NSOs in the most intensively burned areas either died or emigrated. 
With ongoing climate changes, we can expect more such severe fire 
events in the future.
    The Final Recovery Plan, acknowledging significant threats to NSOs 
in dry, fire-prone forests, calls for a ``landscape management'' 
strategy for the eastern Cascades through the California Cascades part 
of the range of the owl, and recommended informal analyses of 
associated risks. Below, I use examples to summarize the need for pre-
emptive management and scientific support for formal risk assessments 
associated with active management of NSO habitat. After that, I end my 
presentation with a section describing options for reducing scientific 
and management uncertainty via adaptive management experiments.
    A majority of NSO nesting sites in Washington's eastern Cascades 
was selectively harvested several decades ago. These sites now support 
dense pole-sized thickets under the remaining, often disease-ridden 
trees. Such small-diameter thickets in the sub-canopies of Douglas-fir 
forests mixed with Ponderosa pine trees are consistent with changes 
that occurred after the onset of fire suppression. The combination of 
selective harvesting and fire suppression most likely inadvertently 
resulted in suitable NSO habitat. However, those owl sites are now at 
great risk of extensive habitat loss to uncharacteristic wildfires. The 
risk is of high concern because those forests include the areas where 
NSO reproductive rates are highest, a point left out of the Final 
Recovery Plan. An extended insect epidemic exacerbates the risk of 
intense wildfires.
    The result is a ``wicked'' ecological problem in that the most 
productive NSOs exist in forests at greatest risk to uncharacteristic 
wildfires, yet fuel reduction treatments could conceivably reduce 
habitat quality for the owls, at least in the short run. That is a 
paradox of the first order.
    It gets worse. Natural, late-successional dry forests in the 
eastern side of the Cascades and parts of the Klamath region contained 
frequent gaps in the forest canopies and patches of forest-floor 
shrubs. These features apparently resulted from frequent light- to 
moderate intensity fires. Now, after decades of fire suppression 
combined with recurring drought and epidemics of insects and forest 
diseases, the old Douglas-fir trees are gradually being replaced by 
grand fir or white fir trees, which are more shade-tolerant. Forest 
ecologists have labeled that process ``fragmentation in reverse''. It 
might also be labeled retrogressive succession.
    These subtle and chronic changes resulted in negative consequences 
to NSOs that were not considered in the Final Recovery Plan. In a 
recent publication, we documented reduced reproductive performance by 
NSOs as well as site abandonment in such forests. Those events occurred 
even though the predominant overstory grand fir trees are old and large 
and no logging occurred during our study (the sites are in Late 
Successional Reserves, or LSRs, under the 1994 Northwest Forest Plan). 
Now, the increasing populations of Barred Owls seem likely to 
exacerbate the situation.
    The negative effects of this subtle and chronic phenomenon of 
fragmentation in reverse or retrogressive succession on NSO population 
performance in dry grand fir or white fir forests are not widely 
understood or accepted. Possibly that has occurred because it runs 
counter to the preponderance of scientific research in the moist 
Douglas-fir/Western Hemlock zone that demonstrated the strong 
association between NSOs and pristine, late-successional and old-growth 
forests. The west-side paradigm has been extrapolated to dry-forests 
that are not pristine. Many of these eastside forests have features 
that characterize old forests, so they are deemed to be high-quality 
habitat. However, the owls are telling us otherwise. There, a custodial 
strategy for such forests is sub-optimal. The internal quality of those 
habitats has eroded over time and many owls (50 pairs in our study) 
have abandoned the affected stands.
    The consequences of such chronic habitat quality loss to NSOs are 
seriously under-estimated. In the section below on relative risk 
assessment, I provide additional information that supports my view that 
the details of tree species composition and density matter greatly to 
NSOs, in addition to trees of large size and old age. To date, however, 
conservation planning and recovery for NSOs has made little or no 
distinctions among the species of trees that may dominate a forest. 
Fortunately, the Final Recovery Plan does acknowledge the possibility 
that composition may matter, and if so, it would be determined via 
adaptive management activities. I will get to that later.
    It is important to note here that, in addition to providing for NSO 
recovery, the LSR network was developed to support other species that 
are associated with late-successional and old-growth forests. However, 
research by other scientists recently demonstrated that such 
unnaturally dense conditions and related compositional changes in dry 
grand fir forests are associated with reduced songbird species 
diversity and abundance, even though large old trees are present.
    Both forest conditions that I've described--that is, forests at-
risk to uncharacteristically intense wildfires and those in 
retrogressively advanced situations--are not sustainable. The decision 
to be made for such forests is not whether or not to manage them; the 
decision involves how to manage.
A. BUT WHAT SHOULD THE ACTIVE MANAGEMENT LOOK LIKE?
    Aldo Leopold, the father of modern wildlife management, developed 
the central thesis of wildlife management, which holds that the same 
factors that historically destroyed wildlife and their habitats--
logging, livestock grazing, farming, hunting, and wildfire--can be used 
judiciously and creatively to restore them. Many participants in 
endangered species recovery have forgotten that axiom. On the other 
hand, and in accordance with Leopold's view, many forest-wildlife 
scientists do suggest that careful harvesting of trees can emulate some 
spatial fire patterns, or can approximate stand structures and 
composition similar to those created by fires.
    Mind you, judicious logging alone cannot be expected to replicate 
all aspects of natural fires, due, among other things, to multiple 
successional trajectories that depend upon a variety of ecological 
processes associated with soils, moisture, activities of herbivores and 
post-disturbance weather patterns. Therefore, it seems reasonable to 
anticipate that prescribed burning might well be part of the NSO 
recovery toolbox, at least in areas with natural fuel loads. Here, I 
emphasize forests where prescribed fires constitute an unacceptable 
risk of growing into catastrophic fires until distribution and 
abundance of forest fuels, both live and dead, are treated 
mechanically.
    As noted in the 2008 Final Recovery Plan, there is indirect 
evidence to support silvicultural programs that emphasize fuel 
reductions in the Eastern Cascades ecological province. For example, we 
found that understory hardwood (shrubs) were comparatively abundant 
around NSO nest sites in fire-prone Douglas-fir/Ponderosa pine forests. 
These hardwood species all increase after forest thinning as well as 
burning. In addition, group seed-tree and patch-cut systems have been 
demonstrated to maintain the abundance, species richness and diversity 
of many small mammals, suggesting that important prey species can be 
maintained. In one eastern Washington Cascades study densities of 
northern flying squirrels, the NSO's primary prey, increased after 
partial harvesting that left large snags and downed woody debris.
B. EMBRACING RISK AND UNCERTAINTY: TECHNOLOGY EXISTS TO SUPPORT FORMAL 
        COMPARATIVE RISK ASSESSMENTS
    Recent assessments of the status of the NSO, such as the draft and 
final recovery plan and federal forest planning activities such as the 
BLM's Western Oregon Plan Revision (WOPR), included informal 
assessments of risks of uncharacteristic wildfire in fire-prone 
forests. To my knowledge, no assessments for the NSO have attempted 
formal risk analyses that might balance short- and long-term risks and 
benefits to NSOs of ecological restoration relative to minimizing 
uncharacteristically intense wildfires or reversing successional 
retrogression.
    Fortunately, a special issue in Forest Ecology and Management in 
2005 (vol. 211) illustrated analytical tools and decision-making 
procedures that can provide land and resource managers, and Congress, 
greater confidence in displaying short and long-term consequences of 
proposed actions. The special issue summarized the discipline of 
relative risk assessment, described state-or-the-art methods for 
predicting hazards and risks of uncharacteristic wildfires, and 
provided several case-histories for conservation of important 
ecosystems or species in peril that are subject to uncharacteristic 
wildfire. Two case-study examples were illustrated for spotted owls.
    A lack of necessary and reliable analytical tools is often invoked 
by federal regulatory agencies to justify short-term custodial 
management (i.e., ``preservation'') over long-term restoration and 
dismiss formal risk assessment. NCASI, several federal and state 
agencies, and several private companies have been working since 1998 to 
develop new decision-support tools that can better quantify the 
relative risks of short-term preservation versus actively addressing 
long-term risks of uncharacteristic disturbances. In that endeavor, we 
asked a different question: ``Do details for forest-stand structure and 
tree- and understory species composition matter to NSOs?'' Such a 
question must be answered for describing habitat in terms understood by 
forest ecologists and managers. That effort, which I supervise, 
includes 9 individual study areas in western Oregon and northern 
California where over 250 spotted owls have been radio-tagged. That 
information has been combined into a model that now can be linked with 
established tools used by foresters for formal relative risk 
assessments: forest growth models, fire-risk models, and harvest 
scheduling with spatial constraints.
    During that research we learned that habitat for spotted owls is 
more than late-successional and old-growth conifer forests. Hardwoods, 
particularly in forest stands near riparian zones in small-order 
watersheds are very important to spotted owls. In fact, habitat for the 
NSO is even broader than forests: in winter, some NSOs in the Medford, 
Oregon area descend to lower-elevations where they forage at night 
within south-slope manazanita brushfields. These brushfields contain 
only a few scattered trees and are maintained by frequent fires. There, 
they acquire woodrats, a major prey item.
    We have also learned in early analyses that the likelihood of an 
owl using a forest stand varies with increases in basal area of 
Douglas-fir trees. As shown in the attachment graphics, the pattern is 
hump-backed, which means that Douglas-fir stands can be either too 
sparse or too dense. Other important factors include distance from nest 
sites, snag density, downed woody debris, understory shrubs, and tree 
species composition. For example, in mixed conifer stands, Ponderosa 
pine seems to exert a negative influence on NSOs. That suggests that 
ecological restoration that removes small-diameter Douglas-fir trees to 
promote old-growth Ponderosa pine is likely to work against recovery of 
the NSO. Importantly, densities of large trees and overstory canopy 
cover, 2 primary factors often used to map suitable NSO habitat, were 
not strong predictors.
    In my opinion, deeper understanding and stronger technology for 
formal comparative risk assessments that include active management will 
help promote recovery of the NSO. It will also result in more-informed 
natural resource plans regarding treatments that provide satisfactory 
protection while also reducing risk of catastrophic wildfire.
    Because of high variation among physiographic provinces, these 
topics are best addressed at the level of a national forest or BLM 
district. Thus, I encourage this committee to consider promoting and 
funding the necessary personnel and additional risk-assessment 
technology that could accelerate both the recovery efforts and 
judicious federal land management planning in forests occupied by NSOs 
that also are prone to uncharacteristic wildfires.
II. REDUCING SCIENTIFIC UNCERTAINTY: ADAPTIVE MANAGEMENT CAN PROMOTE A 
        MORE SUSTAINABLE FOREST AND MORE EFFECTIVE RECOVERY
    Prior to widespread application in site-specific or watershed 
planning for silvicultural intervention within or near NSO sites, 
models such as that described above should properly be considered as 
``working hypotheses'' for testing and refinement via well-designed 
adaptive management experiments. Such ideas about utilizing adaptive 
management were emphasized in the Final Recovery Plan, but only for the 
Klamath region in southwestern Oregon and Northern California. However, 
I believe the Plan may have been overly optimistic in presuming that 
adaptive management will truly serve NSO recovery.
    The Interagency Scientific Committee (ISC), the Forest Ecosystem 
Management and Assessment Team (FEMAT), and previous recovery plans all 
recognized and promoted adaptive management as a means for identifying 
silvicultural practices on federal lands that might hasten re-growth of 
LSOG forests and thereby sustain species such as NSOs. And 10 federal 
Adaptive Management Areas were established via President Clinton's 
Northwest Forest Plan in 1994. Unfortunately, recent reviews point out 
that adaptive management has become a buzzword and its promises have 
not been fully realized.
    For example, it is now nearly 15 years since adoption of the 
Northwest Forest Plan, and no federal research has been undertaken to 
evaluate how NSOs might respond to habitat manipulation in an adaptive 
management framework. Wildlife scientists have repeatedly demonstrated 
the negative consequences clearcutting within owl habitats, but know 
almost nothing about the effects of numerous combinations of other 
forest management practices such as thinning, selection, or shelterwood 
systems of silviculture.
    Further, the 1994 Northwest Forest Plan assumed that the interim 
no-touch, ``default buffers'' along stream courses would be altered and 
some management allowed once watershed assessments were completed. That 
would have afforded additional opportunities for ``adaptive management 
tests''. However, these redundant buffers remain in place, and are 
predicted to lose their hardwoods over the next 50 years. As stated 
above, this could have negative effects on NSO recovery because 
hardwoods are important to them via their prey.
    The crucial aspects of the Northwest Forest Plan related to 
``adaptive management'', that is, the 10 adaptive management areas, 
thinning or partial harvesting in stands in LSRs, and adjustments in 
widths and silvicultural practices related to riparian buffers, have 
not been aggressively utilized to provide practical insights and new 
technical information. There is little to suggest that yet another 
recommendation for adaptive management, as indicated in the Final 
Recovery Plan, will actually be implemented.
    I remain firmly convinced that new scientific information is 
crucial to developing responsive management to promote recovery of NSOs 
over the long run, while taking into account the dynamic nature of 
their habitats. The ``static habitat'' approach has dominated and the 
risk of loss of those habitats from catastrophic fire or degradation of 
habitat quality via successional replacement, has progressively 
increased.
    Diverging a bit from the Final Recovery Plan, I believe that the 
success of innovative forest management strategies for dry, fire-prone 
forests requires research and monitoring within an adaptive management 
framework in the eastern Cascades as well as the Klamath region. 
Success depends upon integrating the knowledge of forest managers and 
scientists. A complete agenda must address landscape-scale effects on 
northern spotted owls as well as other wide-ranging species.
    However, some observers have wondered if it is truly possible that 
adaptive management, in concert with collaborative and social natural 
resource management, can account adequately for real and perceived 
risks and scientific uncertainty in addition to environmental and 
social values over long- and as well as the short term. The biggest 
challenge could well lie in promoting the public will for implementing 
active forest management programs that seek to balance short-term 
conservation needs with long term forest ecosystem sustainability. Yet, 
in practice, most of these ``collaborative'' efforts have not held 
together for long. To date, little interest has been forthcoming among 
federal regulatory wildlife biologists and scientists for conducting 
adaptive management experiments on behalf of the Northern Spotted Owl.
    This Committee can do something about that. I concur with the 
Recovery Plan's recommendation for a panel of wildlife ecologists, 
forest ecologists and forest managers to generate the salient questions 
and appropriate designs that can address them ways that maximize 
effective communications among what traditionally has been somewhat 
disparate disciplines. Basically, that requires significant investments 
in research funding. Active adaptive management requires simultaneously 
implementing more than one recovery option in areas such as the 10 
federal Adaptive Management areas, the Klamath or eastern Cascades. 
Those options that demonstrably provide greater success can be refined 
and applied more broadly.
SOME POTENTIAL TOPICS FOR ADAPTIVE MANAGEMENT
    The predictive relation between NSOs and habitat conditions is weak 
and must be improved if we are ever to use habitat as a surrogate for 
monitoring progress toward recovery. Doing so will require manipulative 
experiments within an adaptive management framework. Maps of LSOG 
forests provided a useful and commonsense place to begin designing a 
sustainable recovery strategy and articulating that strategy to 
Congress and the public. Yet, LSOG is a categorical description of a 
particular forest successional stage, and successional stages have 
never been demonstrated to have reliable predictive relationships with 
demography of any wildlife species. In fact, a habitat modeling effort 
in northwestern California that included only LSOG ranked about 50th 
among a suite of more than 100 candidate models that were tested 
against field data on NSO locations. In my opinion, habitat for the 
NSO, at least in fire-prone mixed composition coniferous forests, has 
been measured and modeled poorly, whereas NSO demography has been well-
captured by sophisticated statistical models.
    It is oft-stated that the ``devil lurks in the details''. In the 
case of the Northern Spotted Owl recovery, details that matter greatly 
to the owl were overlooked in our zeal to protect LSOG forests. As 
noted above, details of composition of forest trees, tree density, 
understory vegetation and abiotic conditions must be accounted for. 
Linking those features with measures of NSO population performance 
involves detailed forest inventories, which generally have not been 
available to federal researchers at a spatial scale that has been 
matched temporally with information on the owl. Therefore, in addition 
to supporting formal relative risk assessments, I urge this committee 
to identify and allocate the necessary resources for improved forest 
inventories on federal lands. Such details also provide an important 
means for blending wildlife science with forest ecology.
    Finally, a note about the invading Barrel Owl. As reported in the 
Final Recovery Plan, some observers believe, with some limited 
supporting evidence, that the Barred Owl is now the biggest threat to 
NSO recovery. As a result, some believe that lethal control of Barred 
Owls is necessary, at least in the short term. There is also evidence 
that the Spotted Owl might be better able to exploit drier, mixed 
conifer forests than Barred Owls. If that is so, it places an even 
greater premium on active management to restore dry, fire-prone forests 
at risk to uncharacteristic wildfires and those degraded by 
retrogressive succession. This will require adaptive management 
experiments to determine if forest restoration may tilt the balance in 
favor of the NSO.
    The Northern Spotted Owl stands a good chance of recovery if the 
right questions are asked, if the habitat features that matter to owls 
are measured and provided, and if Congress directs regulatory and land 
management agencies in ways that can embrace and reduce scientific 
uncertainty. Without such direction and without adequate funding, I 
fear a legacy of benign neglect will prevail. We've made outstanding 
strides. Yet there is much work, good work, still to be done.
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                                 ______
                                 
ATTACHMENT 1
    This attachment provides graphics that display a portion of a 
computer-based model that summarizes factors influencing habitat 
selection by Northern Spotted Owls at Medford, Oregon (A), and by 
California Spotted Owls near Chico California (B). The data came from 
following radio-tagged spotted owls for up to 5 years in each area. The 
model is known as a ``resource selection function, or RSF. The graphs 
show that forest stands can be too dense for optimal use by spotted 
owls, and also that different tree species have different effects on 
spotted owls.
    The vertical Y-axis in each graph represents the relative 
likelihood of a forest stand being used by a spotted owl for nocturnal 
foraging. The BASAL.FIR X-axis in each graph indicates likelihood of 
use of an individual forest stand by an owl is highest at intermediate 
levels of basal area of Douglas-fir trees, and suggests an optimal 
range of approximately 150-225 square feet of basal area per acre. 
Basal area is the sum of the cross-sectional area occupied by 
individual trees. In A, the CEDAR X-axis indicates that basal area of 
Incense cedar trees has a weak, but positive influence.
    In B, the likelihood of use of a forest stand by a spotted owl 
increased with increasing basal area of hardwoods, exemplified in the 
graph by the axis labeled BASAL.HW. Hardwoods are known to be important 
to the owl's small mammal prey.
    The overall computer models include other factors, such as distance 
to streams and basal areas of other tree species. They can be used in 
conjunction with forest managers' tools such as forest-growth and fire-
risk models to estimate the relative effects on spotted owls in the 
short- and long runs from thinning or partial harvests that reduce tree 
densities or fuel loads. Both graphs indicate relatively high values 
for forest stands with high basal areas, which often characterize old-
growth forests.

[GRAPHIC] [TIFF OMITTED] T2492.055

[GRAPHIC] [TIFF OMITTED] T2492.056

                                 ______
                                 

   Response to questions submitted for the record by Larry L. Irwin, 
                       Principal Scientist, NCAS

Questions from Congressman DeFazio
1.  Do you agree with Dr. Franklin's testimony that the science in the 
        Draft Plan on habitat goals was flawed, and the Final Plan 
        largely remedies these flaws?
    Scientists are risk averse by nature, and it is easy for a 
scientist to identify sections of forest management or recovery plans 
that may not apply all of the relevant science. Despite that, I 
generally agree with Dr. Franklin, although I would describe the 
science in both Plans as more or less incomplete rather than flawed.
2.  Do you agree that it is in the public interest for science-based 
        plans such as Recovery Plan and WOPR to be evaluated and 
        reviewed by eminent scientists?
    No. I would agree to the question if the eminent scientists chosen 
for reviewers are thoroughly aware of the crucial and locally important 
details. The scientific record on spotted owls, for example, is not 
entirely complete, clean or clear, and the details matter greatly. In 
such cases, general scientific knowledge cannot replace intimate 
personal familiarity.
3.  Do you agree that there are still uncertainties as to whether the 
        Final Plan is as effective as the Northwest Forest Plan at 
        protecting owl habitat?
    Of course, there will always be scientific uncertainty as well as 
management-decision uncertainty. I believe the Northwest Forest Plan 
was deficient in several topics relative to owl habitat, and its 
implementation relative to question 4 below was lacking. The new 
Recovery Plan makes a reasoned attempt to remedy some important 
uncertainties, yet it remains to be seen if those suggestions can be 
fully implemented.
4.  The plan relies heavily on ``adaptive management'', which is a 
        science-based approach. Given the answers to 1, 2, and 3, 
        should we leave implementation of WOPR and the Recovery Plan in 
        the hands of government agencies?
    Of course, both the WOPR and the Recovery Plan are government 
constructs and therefore should be implemented by cooperating 
government agencies. Yet, I believe that scientists should be closer to 
the proverbial driver's seat in informing land manager's decision 
making. I continue to encourage both the BLM and U.S. Fish and Wildlife 
Service managers to skillfully engage academic and other scientists in 
formally identifying, managing, and implementing forest management in 
ways that reduce the attendant risks, as stated in my testimony. In 
fact, I remain hopeful that Congress can accelerate the direct 
application of science as part and parcel of land management policy as 
a continuous learning process, which is true adaptive management. 
Adaptive management was proposed by the ISC in 1990, included in the 
Northwest Forest Plan, and promoted in the Final Recovery Plan for the 
Northern Spotted Owl. It was applied passively to a rather limited 
extent, via trail-and-error. It has yet to be executed actively--doing 
so involves embracing uncertainty in a formal manner.
5.  Dr. Irwin, Dr. Franklin's testimony expresses the concern that fire 
        represents a great threat to spotted owls in dry forests and in 
        southern Oregon. Do you share this concern?
    Yes. One needs to look no further than the 2002 Biscuit fires, 
which apparently forced some 50 pairs of spotted owls to seek other 
habitat, which, of course, doesn't exist or is already occupied.
                                 ______
                                 
    Mrs. Napolitano. Thank you very much for your testimony, 
sir.
    I have a question to pose to all of you. Are you in a hurry 
to return to where you came from? We are going to be voting for 
about 45 minutes to possibly an hour. I would like to come back 
and continue a line of questioning for the record. If you are 
with me, I would like to know if you can be back. Those that 
can, fine.
    I will return then and be with you, so I will recess until 
we have votes. We have about six votes. It may take about 45 
minutes, and then we will be back and resume the line of 
questioning. Thank you.
    This will be for the record. Thank you.
    [Recess.]
    Mrs. Napolitano.The oversight hearing on ``Deception: Do 
Endangered Species Have a Chance?'' will reconvene. I apologize 
for the delay and thank you very much for standing by and 
coming back.
    This is a matter of great importance to this Committee, 
especially to people like me who have a great concern about 
some of the Administration's findings or nonfindings, if you 
will, over the last few years that have placed some of our 
protected species in the endangered area and how do we work 
cooperatively, both the farmers, the business, the fishermen, 
with the environmentalists and the scientists to be able to 
ensure that we do not lose any more species forever.
    I have children and grandchildren and a great-grandson, and 
to me it is important that they are able to enjoy and, if you 
will, see these species that still are with us, so with that I 
will move on to the questions. Part of what I would like to do, 
and I hope some of the other Members will come in shortly. Most 
of them that I talked to have meetings, so we will accept them 
as they come in.
    First, to Mr. Scott Kraus. In regard to NOAA, they have 
raised concerns with the sensitivity analysis conducted by the 
White House Council of Economic Advisors. Apparently, the 
Council changed the National Marine Fisheries Service findings 
that five endangered right whales were seriously injured by 
ship strikes to ``not serious.'' What is the significance to 
this change, and what can happen?
    Mr. Kraus. Well, it is perplexing at very best. Normally 
when you run a sensitivity analysis on any kind of model like 
this you want to select your data randomly, and they didn't do 
that. They selected five animals. They changed their status.
    I don't really understand the reasoning behind it because 
it doesn't follow any accepted statistical procedures. I don't 
understand the rationale. We don't understand it.
    Mrs. Napolitano. Was there any explanation? Was anything 
questioned?
    Mr. Kraus. Not to my knowledge.
    Mrs. Napolitano. Was this brought up to them at one point 
or another about being too focused and not using normal and 
standard procedure?
    Mr. Kraus. I only have secondhand information, which 
indicates that the NOAA scientists challenged the analysis as 
inappropriate. That is all I know. I don't know.
    You know, the scientific review that is being challenged by 
the Council on Economic Advisors, we are not privy to that 
external. There is no external peer review by scientists who 
actually work in the field, so we don't know what they are 
doing.
    Mrs. Napolitano. There were no findings revealed, none 
shared?
    Mr. Kraus. There is no call for public review of the 
findings, and there is no information that we are aware of in 
the public domain.
    Mrs. Napolitano. What would benefit? If there were a 
change, what would you feel would be necessary to be able to 
have that information shared so that there would be more--how 
would I say--openness and----
    Mr. Kraus. Well, transparency would help, but it also helps 
to have expertise in the field in which you are being critical, 
you know.
    The whole field of biostatistics is quite complex and 
sophisticated. It is not something that you pick up overnight, 
and it is certainly not something that nonbiostatisticians 
should be challenging without a comprehensive understanding of 
the questions.
    Mrs. Napolitano. I am assuming the economic advisors do not 
have qualified scientists or scientists working for them?
    Mr. Kraus. I honestly don't know but, if I were a 
biostatistician, that is not the first place I would look for a 
job.
    Mrs. Napolitano. Thank you for your honesty, sir.
    Mr. Parsons, you stated that the current management 
practices and Agency policies may cause the extinction of the 
Mexican wolf in the wild. Are we at the point principally 
because of political calculations favoring special interests? A 
failure of leadership? A lack of resources? All of the above or 
any other reasons?
    Mr. Parsons. Madam Chairman, I believe probably all of 
those reasons have some application. I can give you a specific 
example of how politics might have influenced some decisions 
back in February of 2005.
    This would have been at a period when the population had 
just been documented by the Agency to have declined by 20 
percent over the previous year. Congressman Pearce held some 
meetings in the region for constituents who were opposed to the 
wolf recovery program, primarily livestock interests, and 
invited high level Fish and Wildlife Service officials to 
attend those meetings.
    Within three months of those meetings, new procedures were 
proposed. One was a moratorium against any new releases of 
wolves. The other was this Standard Operating Procedure 13, 
which we have shown as clearly the cause for the population 
decline.
    So if you are applying science to an adaptive management 
process and you are looking at a declining population you would 
want to implement measures that would give wolves more 
protection and reduce the amount of taking by the Agency 
because that is the primary cause for the population decline. 
Rather, the Agency issued these new procedures that would have 
the opposite effect.
    Now, interestingly they issued these procedures while they 
were in the middle of a broader public review, an open public 
comment period on their internal five-year review of the 
program where they had made 37 recommendations for changes that 
would be looked at in a proposed rule revision process.
    In the middle of that public process, the purpose of which 
was to provide the Agency with the data they needed to make 
appropriate changes to the program, they interrupted that with 
this process within a process to implement these new rules that 
we clearly pointed out to them in our comments, which I have 
submitted for the record, would cause further decline in the 
population. So that is a political, I think, example.
    Mrs. Napolitano. Are you aware, sir, if this interruption, 
this new process that was injected in between, was added to the 
review for a review of those that were supposed to----
    Mr. Parsons. It was not. It was carried out as a wholly 
separate process. We pointed that out in our comments that it 
seems kind of odd to have a process within a process, 
particularly when the overarching process is the one that is 
providing you with the information to make well-considered 
changes in the program.
    Mrs. Napolitano. Is that five-year review a mandate?
    Mr. Parsons. It is not a mandate, but it is published and 
accepted now.
    That was finished in I think July of 2006 with 37 specific 
recommendations--these are internal--from this Adaptive 
Management Oversight Committee which the Service adopted 
exactly as presented, even though there was a large body of 
science-based public comment that countered many of those. 
Those are now adopted and will actually guide the Service 
internally in this rule revision process.
    Mrs. Napolitano. So, in essence, the recall for a five-year 
review is not something that they are going to be utilizing. 
Rather, they will use the new process?
    Mr. Parsons. Well, they should be utilizing it. It is 
actually required in the regulation that reviews be done at 
three and five years and so that is why they were doing that 
review. It was a legal requirement.
    Mrs. Napolitano. Well, that is why I asked initially if it 
was a mandate, a legal requirement.
    Mr. Parsons. Sorry. I misunderstood. Yes.
    Mrs. Napolitano. OK.
    Mr. Parsons. Resources you asked about, if I may. So far 
there have been 26 wolves taken illegally by nongovernment 
personnel--poaching, if you will. Only one of those cases has 
been resolved from a law enforcement perspective.
    In other words, there has only been one arrest and 
conviction on 26 cases and so that might suggest that from a 
resource standpoint they could use some more law enforcement 
help out there to try to catch these poachers.
    Turnover in the personnel in the program both at the 
Federal and the state level is rampant. There is constant 
turnover, and right now they are in the middle of catching up 
again and staffing up to adequately run the program.
    Mrs. Napolitano. OK. So there are other inherent issues 
involved in being able to protect the Mexican wolf I am 
hearing?
    Mr. Parsons. Yes. Law enforcement is a big one, but I 
should point out that the amount of wolves being taken out by 
the Agency through these management measures that I think are 
out of line is three times those that have been taken out by 
illegal activities.
    Mrs. Napolitano. Are you aware of any instances where the 
wolves may have been enticed or baited into situations 
resulting in livestock depredations?
    Mr. Parsons. Yes, ma'am. There was an article published in 
the High Country News late last year, late December, where a 
rancher in the area, according to the reporter, explained to 
him how he conducted a branding operation within a half mile of 
a known den site for the Mexican wolves and then later that 
evening left a pregnant cow who was expected to give birth that 
night out unprotected on the open range in the vicinity of that 
den with the idea that it would cause a depredation.
    This was a situation where the wolves in the area had two 
depredations already. A third would mean that the Agency took 
them out. In fact, that depredation did occur that night. The 
Agency, not knowing that it was a set-up, went in and actually 
killed a wolf, the alpha female of a pack there called the 
Durango pack.
    As a result, the rancher submitted claims to the Defenders 
of Wildlife for compensation for those animals and received I 
believe $2,400--$2,000 for the mother cow and $400 for the calf 
as if it would have grown up and be sold at market.
    Whether it is true or not, because the rancher has since 
denied having said those things once the article came out. 
Whether it is true or not it illustrates the perverse incentive 
of having a wolf control program operating simultaneously with 
a wolf compensation program.
    You know, I in my own mind predicted that such a scenario 
might play out, and it looks like it has.
    Mrs. Napolitano. OK. Thank you very much.
    For Mr. Scott Hoffman Black. GAO's review found that 
someone besides Julie MacDonald overrode scientists' 
recommendations to list the Miami blue butterfly. Scientists 
had found that three of the five factors determining whether 
the listing is warranted were met.
    Does the Endangered Species Act allow listing officials to 
ignore scientists' recommendations to list a species because a 
state management plan or captive bred population exists?
    Mr. Black. No, it does not. The Endangered Species Act does 
not allow for the Federal government to pass off responsibility 
to the states, which is basically what that official in this 
case was saying that he did. He was passing off responsibility 
for management of this species from the Federal government to 
the state.
    Also, I would contend that even though the state--and I 
want to commend the state--the state stepped in where the 
Federal government would not, and has actually tried to be a 
good actor in protecting the species. That said, their 
Endangered Species Act is not nearly as strong as the Federal 
endangered species statute, so they are not able to truly 
protect this animal.
    When the U.S. Fish and Wildlife Service made this decision, 
or one official it seems made this decision, there were less 
than 100 butterflies out there. I mean, we are talking about 
100 butterflies. They are almost gone, yet the Federal 
government said that this species did not meet the definition 
of being endangered under the Endangered Species Act.
    Mrs. Napolitano. Based on what findings?
    Mr. Black. Well, they based it--and we have been seeing 
more of this--they have based it on what state government was 
going to do for the species. They based it on a future 
projection that the state would be able to manage and protect 
this species and recover it is basically what they did.
    Mrs. Napolitano. But was there consultation with the state 
to be able to come to that decision?
    Mr. Black. I wasn't in between them and the state, but as 
far as I know, no. The state moved forward on their own because 
the Federal government was not moving forward. The state 
stepped up. They were a good actor. They listed the species. 
They funded a captive rearing program.
    As we know from Dr. Jaret Daniels, who is the world expert 
on this species, that has not been enough. We really needed the 
Federal listing of the species so that we could really come up 
with good recovery areas, have the funding to actually recover 
the species.
    Also a big issue has been mosquito control. We are all 
concerned about mosquitos and mosquito borne diseases, but in 
Florida mosquito control trumps their endangered species law so 
there are areas that you cannot recover this butterfly under 
the state statute because there is mosquito control going on at 
those sites, so an endangered species listing was truly 
warranted, and they should have taken action.
    Mrs. Napolitano. But did the mosquito control abatement 
possibly hurt the butterfly?
    Mr. Black. Undoubtedly. One of the stated reasons for the 
decline in this butterfly is pesticide use for mosquito 
abatement. They think that largely losses on the mainland were 
due over decades to mosquito control.
    Mrs. Napolitano. That is interesting because in my area, 
back in my former days, we worked with vector control, and part 
of that was mosquito abatement. What they did was they 
sterilized mosquitoes and released them.
    That seemed to be very, very effective at that point. This 
is I am talking 10 or 12 years ago. I am not sure whether any 
technology is being used, but certainly there are predatory 
animals for mosquitoes that possibly could be bred to be maybe 
more--I don't know. I am just reaching. Besides using 
pesticides that are going to harm other species.
    Mr. Black. There are many other options for mosquito 
control other than broad spectrum insecticides. The problem 
often is county governments who often run the vector control 
boards want to look like they are taking action, and having 
spray out there looks like they are taking action, even when 
oftentimes the efficacy, the effectiveness, of that spraying 
program nobody has even seen whether they are working or not. 
So that said, there are other options.
    Mrs. Napolitano. Yes. I think you go beyond that because 
some of those pesticides are going to go into your groundwater.
    Mr. Black. Yes, undoubtedly in the future. You know, it is 
an interesting conundrum because we have ramped up pesticide 
use for mosquitoes. We are getting a little off the Endangered 
Species Act, but for mosquitoes because of West Nile virus.
    I feel really bad for anybody whose family member has died 
of West Nile. I have two children. I would not want to see that 
happen. That said, we really don't know the ramifications of 
this ramped up pesticide use on our water quality, on cancer 
rates or on the decline in species.
    Mrs. Napolitano. Has the state done any research, done any 
kind of R&D, to be able to determine whether or not that has 
hurt more than helped?
    Mr. Black. Most states do not, and I don't know if the 
State of Florida has done that research on that efficacy, but 
the problem usually is that most of these mosquito abatement 
boards are county so that it is this diffuse network of county 
boards that do mosquito abatement, oftentimes communicating 
some with other counties, but there is usually not an umbrella 
in many states, and again in Florida.
    But the main issue is the Fish and Wildlife Service had 
jurisdiction over that species. It was truly endangered. 
Everybody in the Agency from the field office to the regional 
office to the national office agreed that it should be listed, 
and it sounds like one person made a decision that it 
shouldn't.
    Mrs. Napolitano. Thank you very much.
    I would like to call on my colleague, Mr. Holt. Thank you 
for coming, sir.
    Mr. Holt. Thank you, Madam Chair. I thank the witnesses for 
coming today on this serious issue.
    There is so much to talk about regarding science and 
environmental protection in general, but let me begin in the 
limited time I have to direct a couple questions at Scott Kraus 
if I may.
    In documents we have, NOAA has raised concerns with the 
sensitivity analysis conducted by the Council of Economic 
Advisors. Evidently the Council changed the determinations made 
by the National Marine Fisheries Service from a category of 
``seriously injured'' for whales to ``not serious.''
    I would like to know what is the assessment of the process 
that the National Marine Fisheries Service uses to determine 
the seriousness of an injury and whether this change was 
appropriate or how it came about. It seems a little puzzling to 
me that someone within the Beltway would somehow change the 
designation of something that happened in the field.
    Mr. Kraus. Well, the serious injury determinations are made 
by a panel of veterinarians and biologists familiar with the 
animals, and they have a pretty rigorous review process that 
goes on as animals are being assessed. It is actually an on-
line process.
    It is pretty much informed by the science. That is to say 
because we track all right whales in the North Atlantic 
individually, we know a lot about the outcome of injuries that 
happened in the 1990s or earlier and so we actually know quite 
a bit about when an injury is serious or not, and all that 
information is fed into the assessment that NMFS makes about 
whether an injury is serious or not.
    As for the way the Council looked at or pulled out or 
changed the assessment, it appears to be wholly inappropriate.
    Mr. Holt. How did the change actually take place? Do you 
know?
    Mr. Kraus. I don't have that information. I understand they 
changed five animals from ``considered to be seriously 
injured'' to ``nonserious injuries,'' but the rationale for 
that is not clear.
    Mr. Holt. Am I correct that this seemed to be a change that 
was made inside the Beltway?
    Mr. Kraus. I believe that is correct.
    Mr. Holt. OK.
    Mr. Kraus. It was done by the Council.
    Mr. Holt. Not many whales come up the Potomac, I guess.
    Mr. Kraus. Probably a limited amount of expertise in that 
area, yes.
    Mr. Holt. OK. Thank you, Madam Chair. If I may, I will 
proceed with some other questions.
    Let me turn if I may to Francesca Grifo. Your organization 
and others have published a great deal about the perversion or 
misuse or abuse of science and a good process for answering 
questions about endangered species and a number of other 
things.
    What steps should the Department of the Interior and the 
Fish and Wildlife Service take to ensure scientific integrity? 
Do you have specific recommendations that we should somehow 
codify, whether in law or in procedure?
    Ms. Grifo. Thank you for that question. I like to say that 
this is a very depressing and disheartening problem, but it 
certainly is not a problem without a solution, and I think it 
is important to talk solutions.
    Mr. Holt. And if I may say, in asking the question really 
what I meant is how we can get both good process for good 
decisions, but also good support and protection for those 
making the decisions so that we can get good decisions.
    Ms. Grifo. Absolutely. We have solutions that I will get to 
in a second that are very specific to Interior and this 
particular problem, but I do want to say, because I think what 
you are referring to are these broader issues that really 
affect Federal science as a whole.
    As you say, we have published a lot, and I would just refer 
you to ``Federal Science and the Public Good,'' which really 
does have a very extensive solution section that cuts across 
agencies and gets at some of the issues that have come up here, 
issues of protecting scientists, issues of transparency, issues 
of the way science gets into the decision-making process and so 
on, all of which are very important.
    Specifically in terms of Interior, I guess it is 
particularly disheartening to be here a year later, having made 
a lot of these same claims and allegations and provided a lot 
of evidence a year ago, and yet what have we seen? My mind goes 
to something that perhaps we can do immediately.
    I mean, one is obviously the Whistleblower Protection Act 
is sitting right now in a conference committee. The House 
version, which was passed by a great majority, has specific 
protections for scientists who want to allow the world to know 
that this kind of interference is taking place.
    The Senate version does not, and obviously it is very 
important that that House language stays in the Senate version. 
I realize I am speaking to the converted here, but nonetheless 
that is happening right now.
    Another thing that could happen right now is that each of 
these bad decisions has enumerable consequences down the line, 
biological consequences for the species that we are talking 
about, as well as land use decisions that are made, so when you 
start with nonrobust science the consequences just explode 
outward in large, concentric circles, and so I guess I would 
hope that perhaps this Committee could work closely with the 
Appropriations Committee to say, ``Let's stop funding the 
consequences that are coming out of these decisions that we 
know are tainted.''
    I mean, we have presented a list of 80 species that are 
just a compilation of many different investigations, so we know 
there are a large number of things happening, a lot of species 
that were interfered with in Interior, and it seems that 
perhaps that tool might help us to slow down those consequences 
while we systemically and systematically go back in and take 
away the causes.
    But in addition to that, obviously the ethics policies that 
are out there are not working. There are problems with both the 
Professional Code of Conduct at Fish and Wildlife in that it is 
only Fish and Wildlife. It doesn't extend to Interior. It 
doesn't extend to those very important conversations between 
Interior and Fish and Wildlife and so on.
    Mr. Holt. Would you say that code of conduct is worth 
extending?
    Ms. Grifo. Yes. I believe there is a basis in there of a 
good first step. I mean, as in all of these things, it would be 
great if there was a process that involved stakeholders and 
comment on what these policies should look like, but it is a 
very good first step I would say.
    Mr. Holt. Would any of the other witnesses care to comment 
on that request?
    Ms. Grifo. Yes. I mean, it is not perfect. Don't get me 
wrong. Yes.
    Mr. Holt. Yes, sir?
    Mr. Irwin. Thank you very much for the opportunity. As a 
scientist, you should know that science isn't pure. There is 
good science and there is not so good science. The process of 
delivering good science is fraught with human frailty because 
some people don't like the new science that might be coming 
out.
    I just want to point out to you that it is a brutal 
process. We muddle through much like the attorneys do and our 
lawmakers, but it is not perfect.
    Mr. Black. I would just like to concur.
    Mr. Holt. Of course, I must say part of the point of 
science is to have a process to protect our ourselves from 
self-deception and imposed deception. It is that process that 
allows fallible scientists to do excellent work. It is the 
process that appears to me to have been compromised and 
contaminated in a number of instances.
    Yes, sir?
    Ms. Grifo. Go ahead.
    Mr. Black. I just wanted to concur with Dr. Grifo that it 
is a good first step, but even within the U.S. Fish and 
Wildlife Service I am a scientist. We are not an organization 
that--you know, we are not one of the legal eagles out there. 
We work science-based to try to work with scientists on land 
management issues.
    I get calls from Fish and Wildlife Service scientists from 
their home because they don't want to speak out--they feel they 
can't speak out--on some of these issues, and we really do need 
to extend that code of conduct and maybe even make the code of 
conduct more rigorous so that doesn't happen.
    I should never get a call at night from somebody who is 
concerned about their job to tell me something that they should 
be able to tell everybody in the light of day. That is all I 
wanted to say.
    Mr. Holt. Have you looked at the whistleblower protections 
that are currently in conference here? Do you think that would 
provide enough protection so that the scientists wouldn't have 
to call you at home and interrupt your weekend?
    Mr. Black. From what I know and from the House version, I 
believe that it would. Of course, Dr. Grifo can speak to that 
much better than I can.
    Mr. Holt. OK. Thank you.
    Ms. Grifo. I just want to add that in my testimony there 
are some concerns about that Fish and Wildlife code. It is not 
perfect. I just don't want to leave that impression.
    Mr. Holt. Yes. Thank you.
    Mr. Parsons. If I may briefly? We heard this morning in the 
Agency's testimony common reference to a term called adaptive 
management, which in fact is a very rigorous, science-based 
process for making decisions where you obtain data through 
monitoring and research, and then you feed that back into the 
front end of the process and make decisions that make sense 
based on the science.
    Just a brief example from the Mexican wolf program is this 
five-year review that resulted in 37 internal recommendations 
for improvements to the program. When we analyzed those through 
the Rewilding Institute, and I should add we have a cadre of 
Fellows, some of whom are world-renown scientists like Dr. 
Michael Soule, for example, who look at our comments and sign 
onto them.
    We found that none of those 37 recommendations would have 
any identifiable positive effect on the status of the Mexican 
wolf for years to come, two to three to perhaps several more 
years. In fact, there were four of those provisions that we 
expect would have such a negative influence on the program that 
within our community we dubbed them the four poison pill 
provisions of the 37 recommendations for how the project should 
be changed.
    Now, this is guiding at least the internal process of a 
rule revision that is now in a NEPA process. The scoping is 
done, and they are going to be developing a draft EIS. They use 
that term ``adaptive management'' a lot, but I think it is 
being used very loosely and more as a buzz word to make us 
think they are doing that when, in fact, they are not.
    Mr. Holt. Thank you.
    Thank you, Madam Chair.
    Mrs. Napolitano. Thank you.
    Mr. Wittman? Thank you for coming, sir.
    Mr. Wittman. Thank you, Madam Chair. I have a question for 
Mr. Irwin.
    I am curious if you could explain to us the concept of 
adaptive management and just kind of give us a brief overview 
of that concept?
    Mr. Irwin. We just heard a comment on that from my 
compatriot here, but I would broaden it a little bit in that 
true adaptive management, as it might apply to forest 
management, links researchers and scientists with managers to 
identify possible solutions to various problems, implement more 
than one solution or one feasible solution simultaneously, 
evaluate the consequences perhaps on a relatively small area 
and choose which of those options seem to work, discard those 
that do not. That is the true concept of active adaptive 
management.
    The way it has been practiced is passive adaptive 
management, which is what Mr. Parsons just described to you, 
where learned people get together, decide the best direction to 
take, determine later whether that was right or maybe needs 
some adjustment with new information. That is the passive 
process.
    The active process implements more than one option 
simultaneously, gathers scientific data and proceeds 
accordingly.
    Mr. Wittman. Another question. You state that in certain 
forest types, such as mixed conifer stands with Ponderosa 
pines, density of large trees and overstory canopy are not 
strong indicators of northern spotted owl preference.
    Has anybody identified what those strong indicators might 
be within certain forest types? Would adaptive management aid 
in discovering accurate indicators? If so, maybe can you 
explain how?
    Mr. Irwin. Well, indeed we have been working cooperatively 
with the Forest Service, the BLM, two state forestry agencies 
and a number of private companies who asked that very question. 
We know now that the details matter.
    It turns out that when you examine where spotted owls spend 
their time and compare that to random positions on the 
landscape you find that a number of factors influence their 
decisions on where they go, particularly where they feed. It 
turns out that large trees are not one of those. Canopy cover 
of overstory trees is also not one. Those two are two factors 
that are used in decision making.
    The owls don't make their decisions on that basis. They use 
understory vegetation, shrubs primarily because that is where 
they find their small mammals prey, and they know the 
difference between apparently whether the tree is an old growth 
Ponderosa pine or an old growth Douglas fir. They don't like 
the pine.
    One of the difficulties in forest restoration, particularly 
in the pine/fir zone, is that many folks would like to see 
these large, old growth Ponderosa pine trees with a grassy 
understory. That is wonderful old growth Ponderosa pine. It is 
very poor spotted owl habitat.
    Part of the distinction regarding adaptive management is to 
understand what those details are and then implement them in 
management practices.
    Mr. Wittman. When you talk about forest management 
activities and spotted owl populations, do you believe that 
they are mutually exclusive?
    Didn't some of the science used by the draft recovery plan 
which has since been shelved show some scientific support for 
owls responding positively to a forest management prescription 
that develops these different types of habitats so that you 
have some diversity there with habitat as it relates to forest 
management and owl habitat?
    Mr. Irwin. Very much so. That is especially true in mixed 
conifer zones, on the east slope of the Cascades and Oregon and 
Washington down to the California Cascades and the conifer 
forests in Oregon and Washington Klamath zone as well.
    We know that a mixture of conditions is important, and I 
think it is going to take adaptive management, monitoring and 
research to identify what the optimal situation is. From our 
own work through the past 10 years, it appears that an 
intermediate density of forest is best for the owl. It allows 
for the prey to propagate, and it allows for the owls to 
actually capture the prey.
    Most people believe that similar silvicultural applications 
do not apply in the Douglas fir/hemlock zone, the so-called 
moist forests that occur in western Oregon and Washington. I do 
not agree with that. There is strong information now that 
demonstrates that riparian zones all over the range of the owl 
are very important. These are moist sites close to small 
streams. Not to major rivers, but to small streams.
    In those sites all across Oregon and Washington our 
custodial management strategy--that is no-touch riparian 
management--is not the right thing to do for owls because new 
research for the Forest Service demonstrates that we will lose 
hardwoods. Hardwoods have been demonstrated to be important to 
spotted owls and their prey, so these sites have to be managed.
    They were, in fact, intended to be managed under the 
Pacific Northwest Plan in 1994, and they were ranged as interim 
riparian zones. The adaptive management never happened.
    Mr. Wittman. One more question for Mr. Parsons. When you 
talk about issues with wolves in talking about what role humans 
need to play with wolves, in a situation where a wolf may be 
jeopardizing a human's life do you think in that particular 
situation that a taking of a wolf is substantiated?
    Mr. Parsons. Absolutely. That is written into the Act. It 
is written into our regulation.
    In fact, one person has used that provision for taking a 
wolf when he thought--it remains to be known for sure if he 
truly was threatened, but he thought he and his family were 
being threatened when they were camping. It was the very first 
wolf shot in the program. He shot the wolf, and he was not 
prosecuted for that.
    Mr. Wittman. Very good. Just one additional question. In a 
situation with a rancher, if he has a situation where a Mexican 
gray wolf is killing his livestock, in that situation should 
that rancher be allowed to take that wolf in that situation?
    Mr. Parsons. There is a provision in the regulation for 
that as well that applies to private property. If the rancher 
observes a wolf attacking livestock on his private property he 
can kill that wolf under the provisions of the rule, no 
questions asked other than there has to be evidence, of course, 
that that was the situation.
    There is another provision that moves that opportunity onto 
public grazing lands when and if there are six or more breeding 
pairs present. Then the Fish and Wildlife Service is allowed to 
issue a permit, a limited duration permit, to a rancher to have 
the same opportunity to protect his livestock.
    We have not gotten to the stage where we have enough 
breeding pairs to trigger that regulation for more than just a 
few months.
    Mrs. Napolitano. All right. Thank you very much for your 
questions.
    I would like to introduce into the record testimony from an 
oversight hearing of July 31, 2007, from Mary Kendall, Deputy 
Inspector General. I would like to quote line numbers 1631 to 
1647, and I would like to ask the questions based on this.
    This states that: More than five years ago, following our 
investigation into allegations of tampering in a scientific 
field samples and findings related to an Endangered Species Act 
study, we recommend that the Secretary ask the Department's 
Chief Scientist to convene a working group consisting of 
internal and external scientists to review and make 
recommendations on how to restore rigorous science to the 
Endangered Species Program and to design and implement a 
Department of Interior scientific code of ethics.
    Has that been accomplished? Does anybody know?
    Mr. Black. Not to my knowledge. It has not.
    Mrs. Napolitano. OK. Then the next one, continuing on Line 
1640: ``While an effort was undertaken to develop a draft code 
of scientific conduct, it has never been finalized or issued 
Department-wide. While we believe that this code needs to be 
revived in its present form applicable primarily to employees 
and volunteers who participate in the hands-on scientific 
activity, we also believe that it needs to be expanded to 
specifically include policymakers like Ms. MacDonald.''
    Has that draft code been started, implemented or otherwise 
worked on that you know of?
    Ms. Grifo. Actually I think the bigger issue here is that 
there are a number of these codes that have come and gone, but 
none of them have been publicly available.
    We have been able to get bits and pieces by FOIA and so I 
think that as this procedure happens we need to have a way that 
when these things are in draft, when these things are 
finalized, they come out to the community at large so that we 
can know. I mean, there is a reason why we are not able to 
really answer these questions because those things have not 
been broadly shared.
    Mrs. Napolitano. My understanding is that the Inspector 
General has indicated that they have not been given or 
implemented Department-wide. Is that correct?
    Ms. Grifo. I am sorry. You know, not over the whole 
Department of the Interior.
    Mrs. Napolitano. OK.
    Ms. Grifo. Right. Yes. I mean, within Fish and Wildlife we 
know that one is out, but in terms of Kempthorne's 10 point--I 
can't remember the name of it, but the 10 point thing that he 
came out with. I mean, that one has major problems. It came out 
and then a month later a lot of it was withdrawn in terms of 
there were lots and lots of issues with it.
    As I say, I mean, the key point here is that drafts are not 
easily available. The process is not transparent. I mean, that 
is the key take-home message.
    Mrs. Napolitano. And that is the message from--?
    Ms. Grifo. Well, from I think those of us on the outside 
that want to understand how Fish and Wildlife works, how 
Interior works, those of us who are taxpayers, citizens, 
fishermen, hunters. I mean, any of the stakeholders or 
constituencies.
    I think in order for us to do our jobs as being a 
stakeholder and a constituent of this Department and the 
agencies within that Department, transparency is what allows us 
to know what is going on and be a part of these processes and 
weigh in.
    Mrs. Napolitano. Thank you. Thank you very much.
    Mr. Wittman, any other questions?
    Mr. Wittman. No.
    Mrs. Napolitano. Panel, we want to thank you wholeheartedly 
for your patience and indulgence and for your very insightful 
testimony.
    We will follow up with questions. We have up to 10 business 
days to submit any additional questions, and I believe I have a 
statement from The Honorable Doug Lamborn for the record dated 
May 21 and also it is a report from the Hoopa Valley Tribal 
Council for the record.
    Without objection, I will so order.
    With that, you have 10 business days to provide any 
additional information.
    Anybody in the audience who has information to submit or 
questions to submit, we would appreciate that.
    I appreciate all your participation and your being again so 
patient with us. With that, this hearing is adjourned.
    [Whereupon, at 2:43 p.m., the Committee was adjourned.]

    [Additional material submitted for the record follows:]

    [A letter submitted for the record by Craig Manson, Former 
Assistant Secretary for Fish and Wildlife and Parks, U.S. 
Department of the Interior, follows:]

Craig Manson
Attorney at Law
P.O. Box 5694
Sacramento, California 95817
(916) 844-4979
[email protected]
CA State Bar No. 102298

May 29, 2008

Gene L. Dodaro
Acting Comptroller General
Government Accountability Office
441 G St., NW
Washington, DC 20548

Subject: GAP Report 08-6881, U.S. Fish & Wildlife Service, Endangered 
Species Act Decision Making, May 21, 2008

Dear Mr. Dodaro:

    I am alive. As far as I know, I have been continuously alive since 
the autumn of 1954; that would mean that I was alive, and available for 
consultation during the time that your staff was putting together the 
above-referenced report.
    I served as Assistant Secretary of the Interior for Fish and 
Wildlife and Parks during most of the time of the events mentioned in 
that report; therefore, I found it remarkable that your staff did not 
contact me before making the inaccurate and ill-informed statements 
contained in that report. My present whereabouts are publicly available 
in many sources.
    I was outraged to read in the press that your staff member Robin 
Nazzaro told the Committee on Natural Resources of the House of 
Representatives that I and three other individuals as officials of the 
Department of the Interior, as The Associated Press reported the 
matter, ``may have put political pressure on lower-ranking employees 
who were deciding endangered species cases.'' Having absolutely no 
evidence of such a conclusion, Ms. Nazzaro eructed this disgusting 
innuendo and let it hang before the Committee and the public, not 
having had the good manners to tell me or the other individuals that 
she was going to do so. Even in what passes for etiquette in official 
Washington, her action was unprofessional.
    The Endangered Species Act is, by its own terms, the responsibility 
of the Secretary of the Interior. As Assistant Secretary for Fish and 
Wildlife and Parks, a Presidential appointee confirmed by the Senate, I 
exercised authority delegated by the Secretary. Furthermore, the 
Assistant Secretary has the statutory responsibility to supervise the 
Director of the United States Fish and Wildlife Service. 16 USC 
Sec. 742b(b). In carrying'' the statutory mandates and the delegated 
powers of the secretary, I alone was responsible for decisions made 
under the Endangered Species Act from February 19, 2002 to December 31, 
2005. Your staff either did not know this (which would be bad enough) 
or deliberately disregarded it for reasons I cannot fathom.
    There is no ``political interference'' when a duly appointed 
official performs his or her statutory duties and exercises discretion 
under the law. As Justice Stevens noted in Chevron USA, Inc., v. 
Natural Resources Defense Council, 467 U.S. 837 (1984), ``an agency to 
which Congress has delegated policymaking responsibilities may, within 
the limits of that delegation, properly rely upon the incumbent 
administration's views of wise policy to inform its judgments.'' There 
is a reason that we have elections in America.
    Your staff's report focuses on several determinations under the 
Endangered Species Act that allegedly were improperly influenced by my 
deputy, Julie MacDonald. In fact, in each of those actions, I either 
took the final decision or endorsed to the Secretary the decision of 
the Director of the Fish and Wildlife Service. Ms. MacDonald had no 
power in law or in fact to ``make decisions'' under the ESA and she did 
not do so.
    Ms. MacDonald*s role, for which I hired her in 2002, was to insure 
that the Fish and Wildlife Service presented credible and reliable data 
upon which decisions could be taken under the law. She did that very 
well. Indeed, the report illustrates the success of her work by this 
comment:
        Service staff described a climate of ``Julie-proofing'' where, 
        in response to continual questioning by Ms. Mac Donald about 
        their scientific reasoning, they eventually learned to 
        anticipate what might be approved and wrote their decisions 
        accordingly.
    Anyone with a liberal education will immediately recognize in that 
comment the successful application of a Socratic approach, which in 
this case yielded documents based on better data and led to decisions 
ultimately based on the best scientific data.
    Your staff's report sets out eight actions in which apparently 
there was concern about ``political interference.'' All but two of 
those actions were critical habitat determinations. In most of these, 
Ms. MacDonald's involvement is described as ``reducing'' the acreage 
for the critical habitat. This is incorrect and misleading.
    First, as I have noted, I, and not Ms. MacDonald, made the decision 
to ``reduce'' the critical habitat acreage. My signature is to be found 
on those rules. And I did not simply rubber-stamp the work of others; 
that is not my style. I examined the rules myself.
    Second, the Endangered Species Act requires that the Secretary take 
into account ``the economic impact, the impact on national security, 
and any other relevant impact,'' before designating critical habitat 
for a species. The statute gives the Secretary discretion to ``exclude 
any area from critical habitat if [the Secretary] determines that the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of the critical habitat,'' unless extinction of the 
species would otherwise result. 16 USC Sec. 1533 (b) (2). In exercising 
the delegated powers of the Secretary, I followed the statutory mandate 
to consider economics, national security, and other relevant factors, 
and then I exercised discretion in to determine whether certain areas 
should be excluded from critical habitat. This exercise of discretion 
was informed by the statutory factors, including the best available 
scientific and commercial data. There is no ``political interference'' 
when an official acts within the terms of the law and exercises 
discretion that Congress has granted.
    I must comment also on the case of the Palos Verdes blue butterfly 
which is mentioned in the briefing annexed to the report. This was the 
very first ESA matter that I handled as Assistant Secretary. Within 
days of my arrival, I was summoned to a meeting with the Member of 
Congress who represented the district wherein the Palos Verdes blue 
butterfly is found. The Member had also summoned an Assistant Secretary 
of the Navy. The Member was concerned that the Navy's plans to close a 
facility in that district were being thwarted by the insistence of the 
Fish and Wildlife Service that a ``consultation'' under Section 7 of 
the ESA was required and that the Service could require mitigating 
conditions if the closure action and subsequent transfer of the 
property to the Department of Housing and Urban Development was found 
to ``jeopardize the continued existence'' of the Palos Verdes blue 
butterfly. The Member's interest was that the Member wanted to see a 
program for the homeless moved into the soon-to-be vacated Navy 
facility.
    The 'Navy disagreed with the requirement for a section 7 
consultation and so did the Member of Congress. However, it seemed 
clear to me that there had to be a consultation, and I said so. The 
issue then became whether HDD or the Navy had to do the consultation. 
After conferring with Interior lawyers, I determined that HUD was the 
party responsible for the consultation on the facts of this matter. HUD 
resisted doing the consultation and there followed an extended period 
of negotiations and discussions with HUD and the Fish and Wildlife 
Service. In the meantime, I continually received telephone calls from 
the Member or the Member's staff urging that the issue be resolved. By 
the time I hired Ms. MacDonald, the issue was still outstanding and the 
Member had grown quite frustrated. The Member blamed the Fish and 
Wildlife Service for insisting on the consultation, which to me was 
required by the law.
    Having little time to devote to the matter personally, I turned the 
matter over to Ms. MacDonald, who handled it efficiently and brought to 
a satisfactory conclusion, in that conclusion, we did not accede to 
many of the demands of the Member, some of which clearly would have put 
politics before science.
    In conclusion, there is not a single example in your report of 
``political interference'' with decision-making under the Endangered 
Species Act. Instead, the report illustrates that some people plainly 
were unaccustomed to the required rigor that my office brought to the 
decision-making process. This rigor actually improved the scientific 
aspects of the Department's responsibilities under the Act.
    I find it regrettable that your staff was so easily misled by the 
uninformed views of largely anonymous sources. That creates an 
impression of sloppy and partisan work in contravention of the high 
regard usually accorded your office.

Sincerely,

CRAIG MANSON
                                 ______
                                 
    [A statement submitted for the record by Doug Robertson, 
Commissioner, Douglas County, Oregon, follows:]

 Statement of Doug Robertson, Commissioner for Douglas County, Oregon, 
               and President, Association of O&C Counties

    The Association of O&C Counties represents the interests of 17 
Counties in Western Oregon within which lie 2.1 million acres of BLM 
managed O&C Lands. This Association has represented County interests in 
the management of these lands for over 80 years and was a participant 
in efforts to secure passage of the O&C Act of 1937. The Association is 
pleased to provide Chairman Rahall and the Committee information about 
this unique category of lands.
    The O&C Lands provide habitat for Northern Spotted Owls and other 
species listed under the Endangered Species Act (ESA). At the same 
time, communities are very reliant on the O&C Lands for jobs and other 
economic benefits. County funding traceable to the O&C Lands is 
critically important, in several cases representing half or more of all 
funding for general fund budgets and the many public services provided 
through general fund expenditures. No discussion about the 
administration of the ESA is complete without consideration of the 
community impact--the human impact--that results from strategies for 
the protection and restoration of listed species.
    Most of the O&C Counties are located in an economically troubled 
part of the region, where the unemployment rate exceeds the Oregon and 
the National unemployment rates. This region is dominated by public 
land ownership that is not subject to property taxes. Douglas County, 
for example, has more than 50 percent of its land in public ownership. 
Some of the O&C Counties have more than 60 percent of their land in 
public ownership. The principal industry in these areas was once the 
timber and wood products industry, which has been in a decline 
corresponding to the period of increasing protections on Federal forest 
lands for ESA listed species.
    Douglas County is at the center of the O&C region. In 2006, while 
most of the nation was booming and enjoying unparalleled prosperity, 
Douglas County saw an increase in the number of people living in 
poverty, from 11.8 percent of the population, to 16 percent of the 
population. During this period, there was a corresponding increase in 
the number of children living in poverty. By 2007, fully 25 percent of 
all children in Douglas County were living in poverty. This is a 
shocking and disturbing statistic that ought to generate a sustained 
outcry. It is particularly disturbing in light of a small increase in 
the median income in Douglas County during the same period, clearly 
illustrating that younger families most in need of family wage jobs are 
the ones being left behind. And as the economic conditions in the rest 
of the country have declined over the last year, the conditions in 
Douglas County have declined further as well.
    The need for services provided by County governments increases as 
the economic stresses in the private sector increase. Unfortunately, 
the decline in private sector economic activity attributable to 
withdrawal of Federal timber resources has been paralleled by a decline 
in shared timber receipts available to County governments to pay for 
health services, law enforcement and corrections, services for 
veterans, drug treatment and prevention programs, libraries, programs 
for at-risk youth, and all the other many services paid for from County 
general fund budgets reliant on O&C shared timber receipts. Federal 
safety net programs have been much appreciated and are the only way 
many Counties are avoiding insolvency, but the future of the safety net 
is uncertain, at best. The only hope many of the O&C Counties have of 
sustaining themselves is restoration of a reasonable level of timber 
harvest on the O&C Lands.
    The O&C Counties do not ask that the needs of ESA listed species be 
ignored. To the contrary, we support protection and restoration of ESA 
listed species as a national priority. We ask, however, that those 
responsible for development of strategies for species protection and 
recovery reciprocate, acknowledge the unique legal mandate applicable 
to the O&C Lands, and be willing to fully consider the needs of local 
communities, so that adverse impacts are minimized. Any Federal 
wildlife policy that ignores human impacts may succeed in protecting 
individual species in the short term, but it compromises the legitimacy 
of government and imperils the long-term viability of the law driving 
the policy.
    The importance of the O&C Lands to Counties and communities is best 
understood in light of the unique history of these lands, which 
uniqueness is illustrated by the differences between BLM managed O&C 
Lands and National Forests and other categories of Federal lands. To 
summarize the key differences:
        --The O&C Lands were once in private ownership, but were taken 
        back into Federal ownership after being on the property tax 
        rolls for decades. National Forest lands have never been 
        privately owned.
        --The O&C Lands are dedicated by Federal law to the dominant 
        use of sustained yield timber production for the benefit of 
        local communities. National Forests are multiple use lands with 
        no one use being dominant, and are managed for the benefit of 
        the nation.
        --The O&C Lands are scattered in small parcels in a 
        checkerboard pattern interspersed with private lands across 
        western Oregon. National Forests are typically very large, 
        contiguous blocks of land.
        --50 percent of the revenue from the O&C Lands is shared 
        directly with all the O&C Counties based on a formula, 
        regardless of where the timber harvest occurs. An additional 25 
        percent of revenues to which the Counties were entitled under 
        the O&C Act have been voluntarily returned to the federal 
        government to invest in improvements intended to enhance the 
        land's productivity. Shared revenues from National Forests are 
        limited to 25 percent, which is paid to the State for 
        redistribution to the Counties in which the National Forest 
        having the timber harvest occurs.
        --Shared revenue from the O&C Lands is unrestricted and can be 
        used by a County for any purpose as part of a County's general 
        fund. Shared National Forest revenue can be used only for roads 
        and schools.
A. History of the O&C Lands.
    Between 1866 and 1870, Congress provided for grants of nearly 
4,000,000 acres of land in Oregon to the Oregon and California (O&C) 
Railroad Company. The land grants were given in exchange for a 
commitment to build a railroad through Western Oregon from Washington 
to the California border. The lands were conveyed to the Railroad 
Company with the proviso that they be sold in 160-acre parcels to 
``actual settlers'' for $2.50 per acre. The purpose of the land grants 
under these conditions was to promote the settlement and development of 
Western Oregon.
    The railroad was built, but the Railroad Company failed to honor 
its obligation to sell O&C Lands to ``actual settlers,'' in many cases 
selling the lands in large blocks to speculators, or retaining the land 
itself. After decades of controversy, including action by the U.S. 
Attorney General and the U.S. Supreme Court, Congress responded with 
the Chamberlain-Ferris Act of June 9, 1916, ch. 137, 39 Stat. 218, 
which declared that all grant lands still held by the Railroad Company 
were revested in the United States, and provided for compensation to 
the Railroad for the O&C Lands thus revested. After decades in private 
ownership and on tax rolls, the lands reverted once again to Federal 
ownership
    Had the lands not been taken back by the Federal government, they 
would have remained in private ownership, providing an economic base 
for private industry and a tax base for local governments. Congress 
recognized that revestment deprived much of Western Oregon of an 
important part of its economic foundation. The Chamberlain-Ferris Act 
therefore established the ``Oregon and California Land-Grant Fund'' 
within the United States Treasury, and provided a method for 
distribution of income from the lands. Once certain debts were paid, 
funds were to be distributed 25 percent to the O&C Counties, 25 percent 
to the State of Oregon and the remainder to the United States. The 
distribution method was designed to compensate the state and county 
governments for the fact that they derived no tax benefits from the 
revested lands. See, Clackamas County, Oregon v. McKay, 219 F.2d 479, 
483 (9th Cir. 1954), judgment vacated as moot 349 U.S. 909 (1955). The 
policy at the time was to continue to dispose of the revested lands, so 
that they would be returned again to private ownership.
    The Chamberlain-Ferris Act distribution method did not work. 
Between 1916 and 1926, very little revenue was derived from the O&C 
Lands. The disposal policy was a failure, as the rugged, heavily 
timbered lands were not attractive for farming or for homesites. As a 
result, payments to the O&C Counties and the State of Oregon never 
materialized. To assist the O&C Counties, Congress passed the Stanfield 
Act of July 13, 1926, 44 Stat. p. 2, 915, which provided for payments 
from the general fund of the U.S. Treasury to the O&C Counties. The 
payments were in lieu of taxes which the O&C Counties could have 
collected had the O&C Lands been privately owned.
    The Stanfield Act provided that payments would be reimbursed from 
the O&C Counties' share of funds in the previously-established O&C 
Land-Grant Fund. To the extent that the Stanfield Act payments exceeded 
the O&C Counties' share of the Fund, the excess became a reimbursable 
charge against the O&C Counties' share of the Fund. Between 1926 and 
1936, the O&C Counties' share of revenues from the O&C Lands was 
insufficient to reimburse the United States for its Stanfield Act 
payments. There was therefore an ever-increasing reimbursable charge 
against the O&C Counties' share of the Fund. The system was not working 
to provide the Counties with revenues on a long term basis the way it 
was intended. Congress tried again.
    In 1937, largely at the urging of the Association of O&C Counties 
and Oregon's Congressional delegation, Congress passed the O&C Act, 43 
USC Sec. Sec. 1181a et seq. Prior inconsistent legislation was repealed 
and the system for distributing revenues from the O&C Lands was 
restructured. Once certain debts were satisfied, the O&C Counties were 
entitled to a total of 75 percent of all revenues from the O&C Lands. 
The remaining 25 percent was to be available for the costs of 
administering the sustained-yield program under which the lands were to 
be managed by the predecessor agency of the Department of the Interior.
    In 1953, the O&C Counties began to receive their full 75 percent 
share. After 1953, varying amounts to which the O&C Counties were 
otherwise entitled were retained by the Federal government with the 
cooperation of the O&C Counties under annual Department of Interior 
appropriation acts. After 1957, the O&C Counties received 50 percent of 
the revenues. An additional 25 percent was voluntarily relinquished by 
the O&C Counties and used for the administration and improvement of the 
O&C Lands. The remainder was deposited in the U.S. Treasury. By 
``plowing back'' a portion of the revenue to which they were otherwise 
entitled, the O&C Counties raised the productivity of the lands. This 
plowback was intended as an investment that would return future 
dividends to the Counties in the form of a dependable and increased 
revenue stream from shared timber receipts. The present value of the 
Counties' ``plowback'' investment exceeds $2.5 billion.
    Counties received their 50 percent share of revenues and active 
management of the O&C Lands continued until the early 1990s, when 
timber harvests declined radically due to changing policies, 
environmental concerns and litigation. The Counties have, since the 
early 1990s been the recipients of ``safety net'' payments under 
several temporary federal programs designed to replace lost timber 
receipts. The last of the safety net programs expired September 30, 
2007. Efforts are being made to reauthorize another temporary safety 
net program, but the Counties have been told that, at best, they will 
have to return to reliance solely on shared timber receipts within a 
few years.
B. Statutory Language and Federal Judicial Decisions.
    The purpose of the O&C Act is reflected in the statutory language, 
which provides that any of the lands classified as timberlands
        ``...shall be managed...for permanent forest production, and 
        the timber thereon shall be sold, cut and removed in conformity 
        with the principal [sic] of sustained yield for the purpose of 
        providing a permanent source of timber supply, protecting 
        watersheds, regulating stream flow, and contributing to the 
        economic stability of local communities and industries, and 
        providing recreational facilities....'' 43 USC Sec. 1181a. 
        (Emphasis added.)
    The O&C Act goes on to require that ``timber from said lands in an 
amount not less than one-half billion feet board measure, or not less 
than the annual sustained-yield capacity when the same has been 
determined and declared, shall be sold annually....'' 43 USC 
Sec. 1181a. The O&C Act requires that administration of the lands is to 
``provide, insofar as practicable, a permanent source of raw materials 
for the support of dependent communities and local industries of the 
region.'' Id. The O&C Act further warns that ``[d]ue consideration 
shall be given to establishing lumbering operations in [administering] 
such lands when necessary to protect the economic stability of 
dependent communities.'' Id.
    The O&C Act has been interpreted many times by the courts as making 
timber production the dominant use for the O&C Lands. The other uses 
for the lands identified in the O&C Act (protecting watersheds, 
regulating stream flows, etc.) are secondary uses, to be achieved 
through sustained-yield timber management. The O&C Lands are unlike 
other Federal lands, which are managed under multiple-use mandates 
where all possible uses are to receive equal consideration in the 
planning process. The O&C Act provides for a dominant use, timber 
production, not unlike legislation setting aside other lands for 
particular purposes such as wilderness, parks, scenic areas or historic 
preservation.
    A 1990 Ninth Circuit Court of Appeals case states clearly and 
unambiguously that the overriding purpose of the O&C Act is to provide 
the O&C Counties with revenues through the sale of timber:
        ``...First, the O&C Act was intended to provide the counties in 
        which the O&C land was located with the stream of revenue which 
        had been promised but not delivered by the Chamberlain-Ferris 
        Revestment Act....The counties had failed to derive appreciable 
        revenue from the Chamberlain-Ferris Act primarily because the 
        lands in question were not managed as so to provide a 
        significant revenue stream; the O&C Act sought to change 
        this.'' Headwaters, Inc. v. BLM, Medford Dist., 914 F2d 1174, 
        1183-84 (9th Cir. 1990) (citations omitted, emphasis added).
    In Headwaters, the Ninth Circuit made clear that timber production 
and harvest was the way Congress intended to achieve the goals of a 
sustained revenue stream to the counties and support of local economies 
and industries. In responding to the plaintiffs' argument in that case 
that the O&C lands should be managed for the discretionary protection 
of owl habitat, the court stated that:
        ``...Nowhere does the legislative history suggest that wildlife 
        habitat conservation or conservation of old growth forest is a 
        goal on a par with timber production, or indeed that it is a 
        goal of the O&C Act at all.'' Headwaters, 914 F2d at 1184.
The Court went on to conclude that ``exempting certain timber resources 
from harvesting to serve as wildlife habitat is inconsistent with the 
principle of sustained yield.'' Id. (Emphasis added.) Headwaters is not 
the only case in which the Ninth Circuit emphasized that the O&C lands 
have been dedicated to timber production. See also, O'Neal v. U.S., 814 
F2d 1285, 1287 (9th Cir. 1987); Skoko v. Andrus, 638 F2d 1154, 1156 
(9th Cir. 1979); United States v. Weyerhaeuser Co., 538 F2d 1363, 1364-
65 (9th Cir. 1976).
    The focus of the O&C Act on providing benefits to local communities 
is confirmed by historic interpretations given the O&C Act by the BLM 
itself. For example, in a 1939 press release, less than two years after 
the O&C Act became the management mandate, the BLM's predecessor agency 
had a Chief O&C Forester, the equivalent of the BLM State Director, who 
described the newly adopted sustained yield forestry program in these 
words:
        ``This assures the continuous production of timber for the 
        employment of Oregon industries without the danger of 
        exhausting the timber supply and without the danger of 
        destroying the tax base of the counties. The General Land 
        Office administers these lands as a vast estate held in 
        trust.'' Press Release, March 31, 1939, W. H. Horning, O&C 
        Chief Forester. (Emphasis added.)
In 1940 the O&C Chief Forester elaborated, saying that ``[a]ll the 
lands best suited for the growing of timber will be retained in public 
ownership and kept at work producing crops of timber. Continuous 
production of timber of commercial quality in the largest possible 
amount is the goal.'' W. H. Horning, The O&C Lands and their 
Management, an Important Advance in Forest Conservation (1940). 
(Emphasis added.)
    The dominance of timber production under the O&C Act was preserved 
by Congress as recently as 1976, when Congress passed the Federal Land 
Policy and Management Act (``FLPMA''), which redefined the management 
direction for nearly all lands in the United States under the 
jurisdiction of the BLM, with the telling exception of lands managed 
under the O&C Act. FLPMA, P.L. 94-579, is a multiple use statute under 
which all uses for the land are given equal consideration, and the BLM 
has broad discretion in choosing the mix of uses it will adopt for 
lands managed under FLPMA. But, Congress specifically preserved the 
dominance of timber production on the O&C lands by enacting section 
701(b) of FLPMA, which says that ``[n]otwithstanding any provision of 
this Act [FLPMA], in the event of conflict with or inconsistency 
between this Act and the...[O&C Act and Coos Bay Wagon Road Acts], 
insofar as they relate to management of timber resources, and the 
disposition of revenues from lands and resources, the latter Acts shall 
prevail.''
    In 1986, the Interior Solicitor was asked if the BLM had authority 
to implement a plan for the protection of spotted owls, prior to that 
species being listed under the ESA. The legal opinion differentiated 
between lands managed by the BLM pursuant to FLPMA, and lands managed 
pursuant to the O&C Act. The Solicitor's opinion describes the 
difference as follows:
        ``The freedom conferred on the Secretary under FLPMA is limited 
        in one important way on certain federally-owned timberlands in 
        western Oregon. There, any decision about managing northern 
        spotted owls must be measured against the dominant use of 
        timber production....In deciding whether to establish a program 
        for managing northern spotted owls on O&C timberlands, the 
        Secretary, then, must decide if it is possible to do so without 
        creating a conflict with the dominant use there--timber 
        production. If the Secretary can manage northern spotted owls 
        and still produce timber on a sustained yield basis in the O&C 
        timberlands, the O&C Act in no way will preclude him from 
        making that choice....The converse, of course, also obtains. If 
        a program for managing northern spotted owls conflicts with 
        producing timber on a sustained yield basis in O&C timberlands, 
        the O&C Act will preclude the program's application to that 
        realty.'' Gale Norton and Constance Harriman, Associate 
        Solicitors, Memorandum to James Cason, Deputy Assistant 
        Secretary for Land and Minerals Management (October 28, 1986).
C. Conclusion.
    The O&C Lands are clearly very different from any other lands 
managed by the Federal government, especially National Forest lands 
managed by the Forest Service. The agencies responsible for strategies 
for the protection and recovery of ESA listed species should 
acknowledge the unique history and purposes for these lands, and devise 
strategies that minimize conflicts with the mandates of the O&C Act.
    In every case, throughout the country, implementation of the ESA 
must take into account the human impacts. Long term preservation of 
threatened and endangered species depends on the political willingness 
of the citizenry to accommodate the needs of those species, and if the 
human price over time is too high and too widespread, the will of the 
people to support wildlife protections will diminish.
    The Association of O&C Counties thanks Chairman Rahall and all 
Members of the Committee for considering our concerns.
                                 ______
                                 
    The following documents submitted for the record have been 
retained in the Committee's official files.

      List of documents retained in the Committee's official files

American Society of Mammalogists--Document entitled ``Reintroduction 
        and Conservation of the Mexican Gray Wolf.''
Carroll, Carlos, Ph.D., Klamath Center for Conservation Research--May 
        27, 2008--USFWS. 2008. Final Recovery Plan for the Northern 
        Spotted Owl, Strix occidentalis caurina.
Carroll, Carlos and Devin S. Johnson, contributed paper: ``The 
        Importance of Being Spatial (and Reserved): Assessing Northern 
        Spotted Owl Habitat Relationship with Hierarchical Bayesian 
        Models''--Conservation Biology.
Diamond, John, and Family--Statement submitted for the record.
Durkin, Barbara--Letter submitted electronically via email regarding 
        Cape Wind Draft EIS / MA Audubon.
Haynie, Leigh--Documents submitted electronically via email:
      Civil Action Suit--U.S. District Court--Eastern District 
Court of Kentucky, Heartwood, Inc. vs. Charles L. Myers.
      Article--``All Bats Are in Trouble.''
Hoopa Valley Tribe--Testimony submitted for the record by Congresswoman 
        Napolitano.
Luce, Dr. Julia Martin--Statement submitted for the record.
Olson, Steve, Association of Zoos and Aquariums--Letter submitted for 
        the record dated January 2, 2008, addressed to Dr. Benjamin 
        Tuggle, Duane Shroufe, Bruce Thompson regarding A request for a 
        moratorium on lethal control and permanent removal (rescind or 
        suspend SOP13) of Mexican Wolves in the Blue Range Wolf 
        Recovery Area until expert task force on genetic issues can be 
        convened to provide guidance to these actions.
Parsons, David R.--Documents submitted for the record:
      March 15, 2005--The Rewilding Institute letter addressed 
to U.S. Fish and Wildlife Service regarding Comments on Mexican Gray 
Wolf Project Five-Year Review.
      May 25, 2005--The Rewilding Institute letter addressed to 
Terry B. Johnson regarding Comments on Mexican Wold Blue Range 
Reintroduction Project Adaptive Management Oversight Committee Proposed 
1-year Moratorium on New Releases and Proposed Standard Operating 
Procedure 13.
      October 10, 2005--Document entitled Mexican Wolf Blue 
Range Reintroduction Project Adaptive Management Oversight Committee 
Moratorium for Calendar Year 2006 (Standard Operating Procedure 0.D).
      Article by Society for Conservation Biology on ``The 
Bureaucratically Imperiled Mexican Wolf''--2006.
      April 17, 2006--The Rewilding Institute letter addressed 
to Dr. John Morgart, FWS.
      December 24, 2007--Article from High Country News on 
``Last Chance for the Lobo.''
      December 26, 2007--The Rewilding Institute letter 
addressed to John Slown, FWS.
      March 7, 2008--The Rewilding Institute letter addressed 
to Dr. Benjamin Tuggle.
      May 16, 2008--Letter addressed to Terry B. Johnson from 
Elisabeth A. Jannings, etc., regarding Comments on SOP's.
Richardson, Hon. Bill, Governor--Press release--``Governor Richardson 
        Seeks to Change Protocols for Mexican Wolf Recovery Program''--
        dated July 6, 2007.
Schneberger, Laura--Testimony submitted for the record.
Smith, Adrian, Congressman--Documents submitted for the record:
      May 6, 2007--Julie MacDonald letter addressed to 
Secretary Dirk Kempthorne, DOI.
      May 7, 2007--Julie MacDonald letter addressed to 
Inspector General Earl Devaney, DOI, plus attachments
Wehrheim, Ed, Catron County Commission--Letter addressed to Dr. 
        Benjamin Tuggle on April 26, 2007 regarding Notice of Finding 
        of Imminent Danger, Wolf Durgano F924.
Wehrheim, Ed, Catron County Commission--Letter addressed to the Natural 
        Resources Committee.

                                 
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