[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
    THE ENDANGERED SPECIES ACT: HOW LITIGATION IS COSTING JOBS AND 
                    IMPEDING TRUE RECOVERY EFFORTS

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

                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                       Tuesday, December 6, 2011

                               __________

                           Serial No. 112-88

                               __________

       Printed for the use of the Committee on Natural Resources



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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
            EDWARD J. MARKEY, MA, Ranking Democratic Member

Don Young, AK                        Dale E. Kildee, MI
John J. Duncan, Jr., TN              Peter A. DeFazio, OR
Louie Gohmert, TX                    Eni F.H. Faleomavaega, AS
Rob Bishop, UT                       Frank Pallone, Jr., NJ
Doug Lamborn, CO                     Grace F. Napolitano, CA
Robert J. Wittman, VA                Rush D. Holt, NJ
Paul C. Broun, GA                    Raul M. Grijalva, AZ
John Fleming, LA                     Madeleine Z. Bordallo, GU
Mike Coffman, CO                     Jim Costa, CA
Tom McClintock, CA                   Dan Boren, OK
Glenn Thompson, PA                   Gregorio Kilili Camacho Sablan, 
Jeff Denham, CA                          CNMI
Dan Benishek, MI                     Martin Heinrich, NM
David Rivera, FL                     Ben Ray Lujan, NM
Jeff Duncan, SC                      John P. Sarbanes, MD
Scott R. Tipton, CO                  Betty Sutton, OH
Paul A. Gosar, AZ                    Niki Tsongas, MA
Raul R. Labrador, ID                 Pedro R. Pierluisi, PR
Kristi L. Noem, SD                   John Garamendi, CA
Steve Southerland II, FL             Colleen W. Hanabusa, HI
Bill Flores, TX                      Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
PJon Runyan, NJ
Bill Johnson, OH
Mark Amodei, NV


                       Todd Young, Chief of Staff
                Lisa Pittman, Chief Legislative Counsel
               Jeffrey Duncan, Democratic Staff Director
                David Watkins, Democratic Chief Counsel
                                 ------                                

      

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, December 6, 2011........................     1

Statement of Members:
    Fleming, Hon. John, a Representative in Congress from the 
      State of Louisiana, Prepared statement of..................   107
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     1
        Prepared statement of....................................     2
    Markey, Hon. Edward J., a Representative in Congress from the 
      State of Massachusetts.....................................     3
        Prepared statement of....................................     5

Statement of Witnesses:
    Ashe, Hon. Dan, Director, U.S. Fish and Wildlife Service, 
      U.S. Department of the Interior, Washington, D.C...........    82
        Prepared statement of....................................    84
    Budd-Falen, Karen, Owner/Partner, Budd-Falen Law Offices, 
      L.L.C., Cheyenne, Wyoming..................................     6
        Prepared statement of....................................     8
    Leshy, John D., Professor, U.C. Hastings College of the Law, 
      San Francisco, California..................................    35
        Prepared statement of....................................    37
    Middleton, Brandon M., Attorney, Pacific Legal Foundation, 
      Sacramento, California.....................................    39
        Prepared statement of....................................    41
    Miller, Doug, General Manager, Public Utility District No. 2 
      of Pacific County, Raymond, Washington.....................    13
        Prepared statement of....................................    15
    Schwaab, Eric, Assistant Administrator for Fisheries, 
      National Marine Fisheries Service, National Oceanic and 
      Atmospheric Administration, U.S. Department of Commerce, 
      Washington, D.C............................................    88
        Prepared statement of....................................    89
    Suckling, Kieran, Executive Director, Center for Biological 
      Diversity, Tucson, Arizona.................................    18
        Prepared statement of....................................    20
        Article submitted for the record.........................    81
    Tutchton, Jay, General Counsel, WildEarth Guardians, Santa 
      Fe, New Mexico.............................................    26
        Prepared statement of....................................    28

Additional materials supplied:
    Access for All, Klamath, California, Statement submitted for 
      the record.................................................   107
    Alliance for Justice; Center for Justice & Democracy at New 
      York Law School; Center for Law and Social Policy; Consumer 
      Action; Consumer Watchdog; and Sargent Shriver National 
      Center on Poverty Law, Statement submitted for the record..   111
    List of documents retained in the Committee's official files.   110
    Natural Resources Defense Council and The Wilderness Society, 
      Letter submitted for the record............................   112
    Rivera, Hon. David, Hon. Thomas J. Rooney, Hon. Ted Deutch,, 
      Hon. Richard Nugent, Hon. Vern Buchanan, Hon. Debbie 
      Wasserman Schultz, Hon. Allen West, Members of the U.S. 
      House of Representatives, Letter to President Barack Obama 
      dated November 22, 2011, submitted for the record..........   103
    Salvo, Mark N., Acting Wildlife Program Director, WildEarth 
      Guardians, Letter submitted for the record.................   115
                                     



 OVERSIGHT HEARING ON ``THE ENDANGERED SPECIES ACT: HOW LITIGATION IS 
           COSTING JOBS AND IMPEDING TRUE RECOVERY EFFORTS.''

                              ----------                              


                       Tuesday, December 6, 2011

                     U.S. House of Representatives

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to call, at 10:05 a.m. in Room 
1324, Longworth House Office Building, The Honorable Doc 
Hastings [Chairman of the Committee] presiding.
    Present: Representatives Hastings, Young, Gohmert, Lamborn, 
Fleming, McClintock, Benishek, Rivera, Duncan of South 
Carolina, Tipton, Gosar, Labrador, Flores, Harris, Runyan, 
Amodei, Markey, Kildee, Napolitano, Holt, Bordallo, Costa, 
Sablan, Garamendi, and Hanabusa.
    The Chairman. The Committee on Natural Resources will come 
to order. The Committee on Natural Resources meets today to 
hear testimony on ``The Endangered Species Act: How Litigation 
Is Costing Jobs and Impeding True Recovery Efforts.''
    As usual, the opening statements are for the Chairman and 
the Ranking Member. However, I ask unanimous consent if any 
Member wishes to submit a statement for the record, they submit 
it before close of business today. Without objection, so 
ordered.
    I will now recognize myself for my opening statement.

 STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE FROM THE 
                      STATE OF WASHINGTON

    The Chairman. Today's hearing is the first of several this 
Committee will hold over the next year to examine and review 
the Endangered Species Act. Enacted in 1973 and last 
reauthorized in 1988, the ESA's fundamental goal is to 
preserve, protect and recover domestic key species. This is an 
objective that I believe we can all support.
    However, it has been 23 years since Congress has reviewed 
or updated the ESA. I believe it is the responsibility of this 
Committee and Congress to ask questions and examine if the 
original intent of this law is being carried out two decades 
later. The intent of this hearing and those to follow is to 
have an honest conversation about both the strengths and 
weaknesses of the ESA and consider if there are ways to update 
the law to make it work better for both species and for people.
    The purpose of the ESA is to recover endangered species, 
yet this is where the current law is failing and failing badly. 
Of the species listed under ESA in the past 38 years, only 20 
have been declared recovered. That is a 1 percent recovery 
rate, and I firmly believe that we can do better. In my 
opinion, one of the greatest obstacles to the success of the 
ESA is the way in which it has become a tool for excessive 
litigation.
    Instead of focusing on recovering endangered species, there 
are groups that use ESA as a way to bring lawsuits against the 
government and thus sometimes block job opportunities. These 
groups have filed hundreds of lawsuits against the Fish and 
Wildlife Service and the National Marine Fisheries Service. In 
fact, in July the Interior Department agreed to a settlement 
that covered 779 species in 85 lawsuits in legal actions. 
Information provided to us over the past few months from these 
agencies indicates they have a combined total of over 180 
pending ESA-related lawsuits. These lawsuits direct valuable 
resources away from real recovery efforts.
    Last May, the Department of the Interior stated, and I 
quote, ``The Fish and Wildlife Service's highest priority is to 
make implementation of the ESA less complex, less contentious 
and more effective.'' While I applaud this goal and look 
forward to hearing the Service's progress, I am concerned that 
the Interior Department's real approach to addressing the 
growing docket of ESA cases appears limited to settling 
lawsuits with a few litigant groups. These settlements reward 
the groups by having the taxpayers pay their attorney fees and 
increase the already large list of species the Department is 
struggling to recover.
    American tax dollars and government biologists and 
personnel should be focused on helping to save species from 
extinction, not responding to hundreds of lawsuits. The 
litigation mindset that is consuming the Endangered Species Act 
has had significant job and economic impacts throughout the 
West, unnecessarily pitting people against species. During 
these challenging economic times, America cannot afford runaway 
regulations and endless lawsuits.
    In the Pacific Northwest, my area, the ESA-related 
litigation touches nearly everyone, be it through Federal 
judges determining the fate of irrigated agriculture and clean 
renewable hydrodams, the impact of the listed spotted owl on 
timber communities and jobs, the fear of litigation that has 
blocked renewable wind projects or uncertainty of whether 
predatory wolves are endangered on one side of the highway, but 
not on the other side of that same highway.
    I hope to hear more from our witnesses today about how 
litigation is impacting species projection, job creation and 
economic development across the country. We are also looking 
for an explanation of why the Obama Administration settled 
these lawsuits and how much time and resources litigation takes 
away from real recovery efforts.
    By strengthening and updating the Endangered Species Act, 
improvements can be made so it is no longer abused through 
lawsuits and instead can remain focused on fulfilling its true 
and original goal of species recovery.
    [The prepared statement of Mr. Hastings follows:]

          Statement of The Honorable Doc Hastings, Chairman, 
                     Committee on Natural Resources

    Today's hearing is the first of several this Committee will hold 
over the next year to examine and review the Endangered Species Act. 
Enacted in 1973 and last reauthorized in 1988, the ESA's fundamental 
goal is to preserve, protect and recover key domestic species. This is 
an objective I believe we all can support.
    However, it's been 23 years since Congress has reviewed or updated 
the ESA. I believe it's the responsibility of this Committee and 
Congress to ask questions and examine if the original intent of this 
law is still being carried out two decades later.
    The intent of this hearing and those to follow is to have an honest 
conversation about both the strengths and weaknesses of the ESA and 
consider if there are ways to update the law to make it work better for 
both species and people.
    The purpose of the ESA is to recover endangered species--yet this 
is where the current law is failing--and failing badly. Of the species 
listed under the ESA in the past 38 years, only 20 have been declared 
recovered. That's a 1 percent recovery rate. I firmly believe that we 
can do better.
    In my opinion, one of the greatest obstacles to the success of the 
ESA is the way in which it has become a tool for excessive litigation. 
Instead of focusing on recovering endangered species, there are groups 
that use the ESA as a way to bring lawsuits against the government and 
block job-creating projects.
    These groups have filed hundreds of lawsuits against the Fish and 
Wildlife Services and the National Marine Fisheries Service. In fact, 
in July the Interior Department agreed to a settlement that covered 779 
species in 85 lawsuits and legal actions. Information provided to us 
over the past few months from these agencies indicates they have a 
combined total of over 180 pending ESA-related lawsuits.
    These lawsuits direct valuable resources away from real recovery 
efforts. Last May, the Department of Interior stated: ``The Fish and 
Wildlife Service's highest priority is to make implementation of the 
ESA less complex, less contentious, and more effective.'' While I 
applaud this goal and look forward to hearing the Service's progress, I 
am concerned, that the Interior Department's real approach to 
addressing the growing docket of ESA cases appears limited to settling 
lawsuits with a few litigious groups. These settlements reward the 
groups by having the taxpayers pay their attorneys' fees and increase 
the already large list of species the Department is struggling to 
recover.
    American tax dollars and government biologists and personnel should 
be focused on helping save species from extinction--not responding to 
hundreds of lawsuits.
    The litigation mindset that is consuming the Endangered Species Act 
has had significant job and economic impacts throughout the West--
unnecessarily pitting people against species. During these challenging 
economic times, American cannot afford runaway regulations and endless 
lawsuits.
    In the Pacific Northwest, the ESA-related litigation touches nearly 
everyone--be it through federal judges determining the fate of 
irrigated agriculture and clean renewable hydropower dams, the impact 
of the listed spotted owl on timber communities and jobs, the fear of 
litigation that has blocked renewable wind projects, or uncertainty of 
whether predatory wolves are endangered on one side of a highway but 
not the other.
    I hope to hear more from our witnesses today about how litigation 
is impacting species protection, job creation and economic development 
across the country. We also looking for an explanation of why the Obama 
Administration settled these lawsuits and how much time and resources 
litigation takes away from real recovery efforts.
    By strengthening and updating the Endangered Species Act, 
improvements can be made so it's no longer abused through lawsuits and 
instead can remain focused on fulfilling its true and original goal of 
species recovery.
                                 ______
                                 
    The Chairman. With that, I am pleased to recognize the 
distinguished Ranking Member, Mr. Markey.

STATEMENT OF THE HON. EDWARD MARKEY, A REPRESENTATIVE FROM THE 
                     STATE OF MASSACHUSETTS

    Mr. Markey. Thank you, Mr. Chairman.
    It is hard to believe that it was almost 50 years ago that 
Rachel Carson warned us of the potential for a ``Silent 
Spring.'' At that time bird populations, including our national 
symbol, the bald eagle, were decimated. Bears and wolves, icons 
of the western wilderness, were on the verge of extermination. 
Whales that had once been plentiful in the ocean were rare, 
although whale oil brings to mind the era of Herman Melville in 
``Moby Dick''. The auto industry was still using it as a 
lubricant in 1970.
    In response to these palpable losses, Congress passed the 
Endangered Species Act in 1973 to save species and their 
habitats. The law has been extremely successful at preventing 
extinction and in setting species on a path to recovery. In 
fact, only two species have gone extinct after receiving 
protection by the law.
    Much like the animals it is bound to protect, the 
Endangered Species Act is that rarest of laws that has become a 
victim of its own success. We struggle to recall the dire 
circumstances that led to its creation in the first place. 
Preventing extinction and recovering species is not just the 
right thing to do, it is the economically sensible thing to do. 
Biodiversity of plants, fish and wildlife provide us with 
important benefits, from life-saving drugs to clean drinking 
water. Nature has been producing cures for millions of years, 
including aspirin from the willow tree and high blood pressure 
medications from the pit viper. Imagine that, a weeping tree 
that solves pain and snake oil that actually soothes the heart.
    Hunting, fishing and wildlife watching produces $120 
billion in annual revenues and employs more than 2.6 million 
people. In 2008 alone, tourists spent more than $125 million to 
travel and visit Stellwagen Bank National Marine Sanctuary off 
the coast of my home state of Massachusetts. The Endangered 
Species Act also continues to receive strong support across 
state and party lines. The vast majority of Americans, both 
Democrats and Republicans of all ages, ethnicities and 
education strongly support the Endangered Species Act.
    Americans also agree that decisions about wildlife 
protection should be made by scientists and not by politicians, 
as the law requires, and yet the majority through legislative 
proposals, reductions in appropriations and funding limitations 
continue to demonstrate their predilection for extinction.
    If we want to recover endangered species, we must first 
work to provide adequate funds to implement the Act. The 
Endangered Species Act has been chronically underfunded. Our 
Republican counterparts have cut the Fish and Wildlife 
Service's endangered species budget for next year by $44 
million and the National Oceanic and Atmospheric 
Administration's budget for protected species by $28 million.
    Today we will hear from the Majority that litigation is 
hindering the recovery of endangered species, but the majority 
of activities that occur because of the Endangered Species Act 
take place without litigation. For example, on the Lower 
Colorado River, a long-term program is in place to balance the 
interests of water users with the conservation of endangered 
species, all without litigation.
    When appropriate litigation is used by industry and 
environmental groups alike to ensure that the government 
follows the rule of law, litigation gives citizens the ability 
to challenge the decisions of the government when they believe 
that they have been wronged. It is as fundamental to our rights 
as freedom of speech or the right to vote.
    Captain Ahab is famously known for fixating all of his 
anger and blame on Moby Dick. Similarly, the Majority's white 
whale is the litigants who are striving to ensure that the 
Endangered Species Act is implemented in accordance with the 
law. This whale of a tale only serves to distract us from 
preventing extinction and recovering species for our own 
benefit and for the benefit of future generations.
    I yield back the balance of my time.
    [The prepared statement of Mr. Markey follows:]

     Statement of The Honorable Edward J. Markey, Ranking Member, 
                     Committee on Natural Resources

    Thank you, Mr. Chairman.
    It is hard to believe that it was almost fifty years ago that 
Rachel Carson warned us of the potential for a silent spring. At that 
time bird populations--including our national symbol, the Bald Eagle--
were decimated. Bears and wolves, icons of the western wilderness, were 
on the verge of extermination. Whales that had once been plentiful in 
the ocean were rare. Although whale oil brings to mind the era of 
Herman Melville and Moby Dick, the auto industry was still using it as 
a lubricant in 1970.
    In response to these palpable losses, Congress passed the 
Endangered Species Act in 1973 to save species and their habitats. The 
law has been extremely successful at preventing extinction and in 
setting species on a path to recovery. In fact, only two species have 
gone extinct after receiving protection by the law.
    Much like the animals it is bound to protect, the Endangered 
Species Act is that rarest of laws that has become a victim of its own 
success. We struggle to recall the dire circumstances that led to its 
creation in the first place.
    Preventing extinction and recovering species is not just the right 
thing to do, it is the economically sensible thing to do. Biodiversity 
of plants, fish, and wildlife provide us with important benefits, from 
lifesaving drugs to clean drinking water. Nature has been producing 
cures for millions of years, including aspirin from the willow tree and 
high blood pressure medications from the pit viper. Imagine that--a 
weeping tree that salves pain and snake oil that actually soothes the 
heart.
    Hunting, fishing and wildlife watching produces $120 billion in 
annual revenues and employs more than 2.6 million people. In 2008 
alone, tourists spent more than $125 million to travel and visit 
Stellwagen Bank National Marine Sanctuary off the coast of my home 
state of Massachusetts.
    The Endangered Species Act also continues to receive strong support 
across state and party lines. The vast majority of Americans, both 
Democrats and Republicans, of all ages, ethnicities, and education, 
strongly support the Endangered Species Act. Americans also agree that 
decisions about wildlife protection should be made by scientists, not 
politicians, as the law requires.
    Yet Republicans, through legislative proposals, reductions in 
appropriations, and funding limitations, continue to demonstrate their 
predilection for extinction.
    If we want to recover endangered species, we must first work to 
provide adequate funds to implement the Act. The Endangered Species Act 
has been chronically underfunded. Our Republican counterparts have cut 
the Fish and Wildlife Service's endangered species budget for next year 
by $44 million and the National Oceanic and Atmospheric 
Administration's budget for protected species by $28 million.
    Today we will hear from the Majority that litigation is hindering 
the recovery of endangered species. But the majority of activities that 
occur because of the Endangered Species Act take place without 
litigation. For example, on the lower Colorado River, a long-term 
program is in place to balance the interests of water users with 
conservation of endangered species, all without litigation.
    When appropriate, litigation is used by industry and environmental 
groups alike to ensure that the government follows the rule of law. 
Litigation gives citizens the ability to challenge the decisions of the 
government when they believe they have been wronged. It is as 
fundamental to our rights as freedom of speech or the right to vote.
    Captain Ahab is famously known for fixating all of his anger and 
blame on Moby Dick. Similarly, the Majority's white whale is the 
litigants who are striving to ensure that the Endangered Species Act is 
implemented in accordance with the law. This whale of a tale only 
serves to distract us from preventing extinction and recovering species 
for our own benefit and for the benefit of future generations.
                                 ______
                                 
    The Chairman. I thank the gentleman for his statement and 
for his colorful metaphors that we always look forward to.
    I want to welcome our first panel. We have with us Ms. 
Karen Budd-Falen, Attorney for the Budd-Falen Law Offices in 
Cheyenne, Wyoming; Mr. Doug Miller, General Manager of the PUD 
District No. 2 in Raymond, Washington, the other side of the 
state from where I reside, but I am very familiar with PUDs; 
Mr. Kieran Suckling, the Executive Director for the Center for 
Biological Diversity in Tucson, Arizona; Mr. Jay Tutchton, 
General Counsel, WildEarth Guardians from Santa Fe, New Mexico; 
Mr. John Leshy, Professor at U.C. Hastings, very good name, 
College of the Law in San Francisco; and Mr. Brandon Middleton, 
Attorney for the Pacific Legal Foundation in Sacramento, 
California.
    Your full statement will appear in the record and that 
little five-minute light in front of you, let me explain for 
those of you who are not familiar with it. When the green light 
goes on that means you have the full five minutes. When the 
yellow light goes on you have one minute remaining, and when 
the red light goes on that means that your five minutes have 
expired, and if you could quickly end your remarks at that time 
and keep your remarks within the five-minute time period, I 
would very, very much appreciate it.
    So, with that, we will start with testimony from our panel 
and we will start with Ms. Karen Budd-Falen. You are recognized 
for five minutes. Would you get closer to that and turn on the 
microphone? I forgot to mention that.
    Ms. Budd-Falen. OK. Is it the red button?
    The Chairman. You are on now, yes.
    Ms. Budd-Falen. All right. Thank you.
    The Chairman. You bet.

           STATEMENT OF KAREN BUDD-FALEN, ATTORNEY, 
           BUDD-FALEN LAW OFFICES, CHEYENNE, WYOMING

    Ms. Budd-Falen. Chairman Hastings, Ranking Member Markey, 
and Members of the Committee, thank you for the honor of 
presenting testimony to you today. My name is Karen Budd-Falen. 
I am a fifth-generation rancher from a family owned ranch in 
Big Piney, Wyoming, and an attorney and owner of the Budd-Falen 
Law Office in Cheyenne, Wyoming.
    My law firm engages in a significant amount of Federal 
court litigation both against the Federal government and 
intervening in litigation on behalf of the Federal government 
when it is sued by radical environmental groups who are seeking 
to eliminate the livelihoods of farmers, ranchers and private 
property owners as well as the stability of rural communities.
    The question today is whether litigation is costing jobs 
and impeding true recovery of listed species. I do not believe 
that Congress envisioned that this Act would become a mechanism 
to put every species imaginable on some list while taking less 
than 2 percent off the list. The legislative history of the ESA 
stated that its purpose was to provide a mechanism to recover 
species, not to just simply put them on a list.
    On July 12, 2011, the Fish and Wildlife Service announced 
two settlement agreements with the Center for Biological 
Diversity and WildEarth Guardians that will require the Fish 
and Wildlife Service and NOAA to consider the listing of 
critical habitat designation for 1,053 species in the next four 
years. That is a huge undertaking. The ESA has been in place 
for 30 years and today there are approximately 1,069 listed 
American species and 590 foreign species on that list.
    The CBD and WEG sued because of missed deadlines. While it 
is true that the agency missed the deadlines, Congress should 
be asking whether these settlements actually help further the 
purpose of the ESA. Specifically, if FWS and NOAA are spending 
all of their time putting species or habitat on a list, what 
time do they have in taking species off of that list? Instead 
of focusing on the recovery of species through the development 
of habitat conservation plans or conservation agreements the 
settlement simply focuses on adding more species to the list, 
which kills jobs because it stops private, state and Federal 
property and water use because of producers' fears of the 
significant fines and possible prison time for harming a 
species or modifying its habitat.
    On top of this, the agencies didn't seem to save themselves 
a lot of trouble with these agreements. The petitions filed by 
other groups still have to be considered under the mandatory 
ESA timeframes, and even the settlement agreement still allowed 
the CBD and WEG to continue to file listing petitions, albeit a 
limited number, and to litigate over a whole host of other ESA 
issues, not just the timeline issue.
    So the settlement agreements have not stopped litigation, 
and once a species is listed it can certainly take an act of 
Congress to remove it. Opponents to ESA reform claim that 
species are not removed from the list because they would simply 
have had not enough time to recover. However, the Rocky 
Mountain gray wolf is a perfect example that even when a 
species has met its recovery goals these groups continue to 
litigate to keep the species on the list.
    Finally, I believe that the driving force behind this 
endless stream of litigation is the Federal government's 
payment of attorneys' fees. Since 1995, there has been no 
accounting of this money. Congress and the taxpayers should 
know how much money is being spent to reimburse attorneys in 
ESA and other litigation. Some of my own clients have received 
reimbursement of attorneys' fees. While I believe that the 
facts show that environmental groups receive a significantly 
higher amount and percentage of attorneys' fees than do 
individuals or industry groups, there is only one way to 
disprove my hypothesis: through accountability and 
transparency. My clients and I are willing to undergo that 
scrutiny. I would argue that those who are against transparency 
and accountability have something to hide.
    I do not advocate the repeal of the ESA, but we are being 
told that Americans have to make some choice between species 
protection, private property rights, a clean environment, rural 
community and jobs. I would argue that these things are not 
mutually exclusive and that this type of fear-mongering is only 
for those who want to raise money based on fear. The ESA should 
be promoting conservation and incentive-based recovery plans, 
not adding more species to the list and becoming a bigger 
threat to American jobs.
    Thank you for allowing me to testify. I would be happy to 
answer any questions.
    [The prepared statement of Ms. Budd-Falen follows:]

             Statement of Karen Budd-Falen, Owner/Partner, 
                     Budd-Falen Law Offices, L.L.C.

    My name is Karen Budd Falen. I am a fifth generation rancher in 
Wyoming and an attorney specializing in protecting private property 
rights and rural counties and communities. I offer this testimony to 
provide legal and factual information and to voice my concern over the 
current interpretation and implementation of the Endangered Species Act 
(``ESA'') and the role federal court litigation has taken in driving 
decisions under the ESA.
    Contrary to some belief, the implementation of the ESA has real 
impacts on real landowners, ranchers, farmers, businesses, employers 
and others who are a vital part of America's present and future. Rather 
than saving species and conserving their habitats, the ESA is used as a 
sword to tear down the American economy, drive up food, energy and 
housing costs and wear down and take out rural communities and 
counties. The purpose of the ESA was NOT just to put domestic and 
foreign species on an ever-growing list and tie up land and land use 
with habitat designations, but to recover species and remove them from 
the list. According to a November 29, 211 U.S. Fish and Wildlife 
Service (``FWS'') report, there are currently 165 American and 59 
foreign species on the ESA list, 25 candidate species, 44 critical 
habitat designations and 12 recovery plans. See http://ecos.fws.gov/
tess.public/SpeciesReport. On the delisting side, the same website 
shows that a total of 51 species have been removed from the list, 18 of 
the 51 species because of a listing error, 1 because the species were 
determined to be extinct and 23 because the ESA worked and the species 
was recovered. See http://ecos.fws..gov/tess_public/DelistingReport. In 
other words, since 1979, the ESA has worked as intended in 2 percent of 
the cases.
    While I do not advocate the complete repeal of the ESA, and neither 
do the landowners, families and communities I represent, this Act is a 
threat to private property use, working ranch families and resource and 
job providers. Consider just one example. Charlie Lyons owns the Percy 
Ranch located in Mountain Home, Idaho. Eighty percent of the ranch 
consists of federally managed and state owned lands. Ted Hoffman is 
also from Mountain Home, Idaho, and owns a ranch named the Broken 
Circle Cattle Company. In 21, an environmental group, the Western 
Watersheds Project (``WWP'') sued the FWS to list the Slickspot 
peppergrass which grows, or has the potential to grow, on these 
ranches. The 21 WWP litigation only involved whether the FWS had to 
make a decision regarding whether to list the grass species under the 
ESA, not whether the grass was scientifically threatened or endangered. 
In this litigation, the Court determined that the FWS had violated the 
mandatory time deadline for making a listing decision and remanded the 
matter to the FWS who ultimately decided against listing the Slickspot 
peppergrass. However, because the Court determined that the FWS had to 
make a decision regarding listing of the species, the FWS agreed to pay 
the WWP $26,663 in ``reimbursement'' for attorneys fees and costs. See 
Committee for Idaho's High Desert v. Badgley, 1-cv-1641 (D.Or. 21).
    After this first round of litigation, a number of local ranchers 
including Lyons and Hoffman came together with the State of Idaho and 
created a Candidate Conservation Agreement (``CCA'') which was approved 
by the FWS under the ESA. This was a pro-active Agreement that required 
certain on-the-ground measures be taken to improve the species. Also, 
through this Agreement, a great deal of research was dedicated to the 
status of the Slickspot peppergrass. In a report in 29, the Slickspot 
peppergrass had the highest recorded population numbers since they 
started counting plants.
    Following the decision of the FWS to not list the Slickspot 
peppergrass and despite the CCA, the WWP sued the FWS again in 24 
seeking a court order to list the species. The affected ranchers, 
including Lyons and Hoffman, intervened. However, WWP was successful in 
their attempt to force the FWS to list the Slickspot peppergrass. The 
total amount of money the ranchers spent on participating in the 
litigation was approximately $3,. WWP was awarded $86,5 in attorneys 
fees, plus another $15, to enforce the judgment, for a total award of 
$11,5. See Western Watersheds Project v. Foss, 4-cv-168, (D.Id. 24).
    In 2007, the FWS withdrew the 24 listing decision based upon the 
fact that the Slickspot peppergrass was already well protected by the 
implementation of the CCA. However, the WWP disagreed and sued the FWS 
over the Slickspot peppergrass again. WWP won and received an award in 
attorneys fees of $11,. See Western Watersheds Project v. Kempthorne, 
7-cv-161, (D.Id. 29). The FWS has now prepared its draft designation of 
critical habitat for the plant. The comment period closes on December 
12, 211. Thus far, the total attorneys fees paid related to the ESA 
listing of the Slickspot peppergrass is $238,163..
    According to these ranchers, WWP's objective in litigating over the 
Slickspot peppergrass is to run ranchers off the land in the spring. 
According to Mr. Lyons, if the WWP is successful in their efforts, it 
would mean a death sentence to the Slickspot peppergrass and ruination 
of our ranches. These ranchers would have to sell their cattle and in 
some cases that money would not cover the mortgage on the ranch. The 
plant would ultimately burn. These ranches are located in one of the 
highest frequency fire areas in the country. The FWS admits that fire 
plays a major role in the survival of the Slickspot peppergrass. 
Ranchers play a major role in putting out the fires because they are on 
the land almost every day and can call and tell the federal and state 
agencies when a fire starts. Once there is no economic value and reason 
for the ranchers to be on the land, the fire suppression efforts will 
be greatly diminished. Additionally, if these ranchers have to limit 
their grazing and sell their livestock, they will be left with no 
choice but to subdivide their private land. Housing subdivisions do not 
make good plant and animal species habitat.
    Additionally according to the Natural Resources Conservation 
Service, ``[n]o large ungulates, either domestic or wild use the 
[Slickspot peppergrass] plant (USDI, 29). This species has no known 
agricultural, economic or other human uses at this time.'' St. John, L. 
and D.G. Ogle. Plant Guide for Slickspot peppergrass (Lepidium 
papilliferum). USDA Natural Resources Conservation Service, Plant 
Materials Center, Aberdeen, Id. The CCA, which the landowners signed to 
protect the plant is useless and the faith and hard work that the 
landowners put into management for the plant is down the drain. No one 
can show that this plant is any better protected by an ESA paper 
designation than it was by true on-the-ground management. Under this 
scenario, the ranchers have lost, the plant has lost and the public has 
lost.
    The ESA is ``the most comprehensive legislation for the 
preservation of endangered species ever enacted.'' See Tennessee Valley 
Authority v. Hill, 437 U.S. 153, 18 (1978). The goal of the Act is ``to 
provide for the conservation, protection, restoration, and propagation 
of species of fish, wildlife, and plants facing extinction.'' Wyoming 
Farm Bureau Federation v. Babbitt, 199 F.3d 1224, 1231 (1th Cir. 2), 
citing S. Rep. No. 93-37, at 1 (1973) and 16 U.S.C. Sec. 1531(b). Under 
the ESA, a threatened species means any species which is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant part of its range, see 16 U.S.C. Sec. 1532 (2), 
and an endangered species means any species which is in danger of 
extinction throughout all or a significant portion of its range other 
than insects that constitute a pest whose protection would present an 
overwhelming and overriding risk to man. 16 U.S.C. Sec. 1532(6).
    Anyone can petition the FWS or the National Oceanic and Atmospheric 
Administration--Fisheries Division (``NOAA'') to have a species listed 
as threatened or endangered. 16 U.S.C. Sec. 1533. Listing decisions are 
to be based on the ``best scientific and commercial data available.'' 
16 U.S.C. Sec. 1533(b)(1)(A). However, there is no requirement that the 
federal government actually count the species populations prior to 
listing. Additionally, although species that present an ``overriding 
risk to man'' are not to be listed, there are no economic 
considerations included as part of the listing of a threatened or 
endangered species.
    Once a species is listed as threatened or endangered, prohibitions 
against ``take'' apply. 16 U.S.C. Sec. 154. ``Take'' means to harass, 
harm, pursue, hunt, shoot, wound, kill, capture, or collect, or attempt 
to engage in such conduct. 16 U.S.C. Sec. 1532(19). ``Harm'' within the 
definition of ``take'' means an act which actually kills or injures 
wildlife. Such act may include significant habitat modification or 
degradation where it actually kills or injures wildlife by 
significantly impairing breeding, sheltering or feeding. 5 C.F.R. 
Sec. 17.3. Harass in the definition of ``take'' means intentional or 
negligent act or omission which creates the likelihood of injury to 
wildlife by annoying it to such an extent as to significantly disrupt 
normal behavioral patterns which include, but are not limited to, 
breeding, feeding or sheltering. 5 C.F.R. Sec. 17.3. ``Take'' may 
include critical habitat modification, if such modification results in 
the death of a listed species. Babbitt v. Sweet Home Chapter of 
Communities for a Great Oregon, 515 U.S. 687 (1995). If convicted of 
``take,'' a person can be liable for civil penalties of $1, per day and 
possible prison time. 16 U.S.C. Sec. 154(a), (b).
    Once a species is listed as threatened or endangered, the FWS or 
NOAA must ``to the maximum extent prudent and determinable,'' 
concurrently with making a listing determination, designate any habitat 
of such species to be critical habitat. Id. at Sec. 1533(a)(3). By 
definition, critical habitat (``CH'') are ``specific areas'' see 16 
U.S.C. Sec. 1532(5)(A) and must be ``defined by specific limits using 
reference points and lines found on standard topographic maps of the 
area.'' 5 C.F.R. Sec. 424.12(c); see also Sec. 424.16 (CH must be 
delineated on a map). For ``specific areas within the geographical area 
occupied by the [listed] species,'' the FWS may designate CH, provided 
such habitat includes 1) ``physical or biological features;'' 2) which 
are ``essential to the conservation of the species;'' and 3) ``which 
may require special management considerations or protection.'' 16 
U.S.C. Sec. 1532(5)(A)(I); 5 C.F.R. Sec. 424.12(b).
    CH must also be designated on the basis of the best scientific data 
available, 16 U.S.C. Sec. 1533(b)(2), after the FWS considers all 
economic and other impacts of proposed CH designation. New Mexico 
Cattle Growers Assoc. v. United States Fish and Wildlife Service, 248 
F.3d 1277 (1th Cir. 21) (specifically rejecting the ``baseline'' 
approach to economic analyses). CH may not be designated when 
information sufficient to perform the required analysis of the impacts 
of the designation is lacking. 5 C.F.R. Sec. 424.12(a)(2). The FWS may 
exclude any area from CH if it determines that the benefits of such 
exclusion outweigh the benefits, unless it determines that the failure 
to designate such area as CH will result in extinction of the species 
concerned. 16 U.S.C. Sec. 1533(b)(2).
    Once a species is listed, for actions with a federal nexus, ESA 
section 7 consultation applies. Section 7 of the ESA provides that 
``[e]ach Federal agency [must] in consultation with and with the 
assistance of the Secretary [of the Interior], insure that any action 
authorized, funded, or carried out by such agency . . . 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 . . . 
to be critical . . . .'' 16 U.S.C. Sec. 1536(a)(2). The first step in 
the consultation process is to name the listed species and identify CH 
which may be found in the area affected by the proposed action. 5 
C.F.R. Sec. 42.12(c-d). If the FWS or NOAA determines that no species 
or CH exists, the consultation is complete, otherwise, the FWS must 
approve the species or habitat list. Id. Once the list is approved, the 
action agency must prepare a Biological Assessment or Biological 
Evaluation (``BA''). Id. The contents of the BA are at the discretion 
of the agency, but must evaluate the potential effects of the action on 
the listed species and critical habitat and determine whether there are 
likely to be adverse affects by the proposed action. Id. at 
Sec. 42.12(a, f). In doing so, the action agency must use the best 
available scientific evidence. 5 C.F.R. Sec. 42.14(d); 16 U.S.C. 
Sec. 1536(a)(2). Once complete, the action agency submits the BA to the 
FWS or NOAA. The FWS or NOAA uses the BA to determine whether 
``formal'' consultation is necessary. 5 C.F.R. Sec. 42.12(k). The 
action agency may also request formal consultation at the same time it 
submits the BA to the FWS. Id. at Sec. 42.12(j-k). During formal 
consultation, the FWS will use the information included in the BA to 
review and evaluate the potential affects of the proposed action on the 
listed species or CH, and to report these findings in its biological 
opinion (``BO''). 5 C.F.R. Sec. 42.14(g-f). Unless extended, the FWS or 
NOAA must conclude formal consultation within 9 days, and must issue 
the BO within 45 days. Id. at Sec. 42.14(e); 16 U.S.C. 
Sec. 1536(b)(1)(A).
    If the BO concludes that the proposed action will jeopardize any 
listed species or adversely modify critical habitat, the FWS' BO will 
take the form of a ``jeopardy opinion'' and must include any reasonable 
and prudent alternatives which would avoid this consequence. 16 U.S.C. 
Sec. 1536(b)(3)(A); 5 C.F.R. Sec. 42.14(h). If the BO contains a 
jeopardy opinion with no reasonable and prudent alternatives, the 
action agency cannot lawfully proceed with the proposed action. 16 
U.S.C. Sec. 1536(a)(2). If the BO does not include a jeopardy opinion, 
or if jeopardy can be avoided by reasonable and prudent measures, then 
the BO must also include an incidental take statement (``ITS''). 16 
U.S.C. Sec. 1536(b)(4); 5 C.F.R.Sec. 42.14(I). The ITS describes the 
amount or extent of potential ``take'' of listed species which will 
occur from the proposed action, the reasonable and prudent measures 
which will help avoid this result, and the terms and conditions which 
the action agency must follow to be in compliance with the ESA. Id.; 
see Bennett v. Spear, 52 U.S. 154, 17 (1997).
    Once a species is listed, ESA section 1 also applies on private 
land, even if there is no federal nexus. In order to avoid the 
penalties for ``take'' of a species, and still allow the use and 
development of private land, the ESA also authorizes the FWS to issue 
ITSs to private land owners upon the fulfillment of certain conditions, 
specifically the development and implementation of habitat conservation 
plans (``HCPs''). 16 U.S.C. Sec. 1539. A HCP has to include (a) a 
description of the proposed action, (b) the impact to the species that 
will result from the proposed action, (c) the steps that the applicant 
will take to minimize any negative consequences to the listed species 
by the proposed action, (d) any alternatives the applicant considered 
to the proposed action and why those alternatives were rejected, and 
(e) any other measures that the FWS may deem necessary for the 
conservation plan. 16 U.S.C. Sec. 1539(a)(2)(A). Once a HCP is 
presented, the FWS must make certain findings before it can issue an 
ITS. Those findings include (a) that the taking of the species is 
incidental to the proposed action, (b) that the proposed action 
implements a lawful activity, (c) that the applicant, to the maximum 
extent possible, will minimize and mitigate any negative impacts to the 
listed species, (d) that the HCP is adequately funded, (e) that the 
taking will not appreciably reduce the survival and recovery of the 
species, and (f) any other measures deemed necessary will be carried 
out. 16 U.S.C. Sec. 1539(a)(2)(B). As a practical matter, mitigation 
means that the applicant will either fund programs supporting the 
listed species or will provide or set aside land.
    Although the legal ESA requirements sound fairly benign, that is 
not how the ESA is being used and interpreted by either the Courts or 
the federal agencies and why oversight by the Congress is needed. 
Consider the following examples:
A. Multi-District Litigation Settlement Agreement
    On July 12, 211, the Justice Department and the FWS announced ``an 
historic agreement'' which will require the American taxpayers to pay 
approximately $26,98,92 to just process the paperwork deciding whether 
to include 153 species under various categories under the ESA. See In 
Re Endangered Species Act Section 4 Deadline Litigation, 1-mc-377 
(D.D.C. 21). These two settlement agreements are the culmination of 
what is known as the ESA multi-district litigation. This case was 
formed in 21 by combining 13 federal court cases filed by either the 
WildEarth Guardians (``WEG'') or the Center for Biological Diversity 
(``CBD'') regarding 113 species. On May 1, 211, the FWS announced its 
settlement agreement with the WEG with the promise that the agreement 
would help the FWS ``prioritize its workload.'' That settlement 
agreement was opposed by the CBD who wanted other species added to the 
list. The Justice Department obliged the requests of the CBD and on 
July 12, 211 filed the second settlement agreement. These agreements 
require the FWS to make 121 decisions on proposed listing, listing and 
critical habitat designations for 153 species. See Exhibits 1, 2.
    Since part of this Oversight Hearing is to discuss the costs of 
litigation related to the ESA, this settlement agreement provides a 
good case study. According to a November 1, 21 FWS Federal Register 
Notice, the median cost for the federal government to prepare and 
publish an ESA 9-day finding is $39,276; for a 12-month finding, $1,69; 
for a proposed listing rule with a critical habitat designation, $345,; 
and for a final species listing rule with a critical habitat 
designation, the median cost is $35,. See 75 Fed. Reg. 69,222, 69,23 
(Nov. 1, 21). The Multi-district ESA settlement agreements discuss 
which ESA actions have to be taken for which species, so by simply 
multiplying the number of species with the median cost per individual 
action, the cost to the American taxpayers for implementation of this 
settlement agreement is $26,98,92. Those costs do not include any costs 
related to completing recovery plans, habitat conservation agreements, 
incidental take statements, section 7 consultation requirements or any 
on-the-ground measures for protection of currently listed or proposed 
newly listed species. This $2,, cost is simply to complete paperwork 
related to species that the CBD and WEG believe should be considered by 
the FWS for ESA inclusion.
    This $26,98,92 figure also does not include the amount of money 
that the Justice Department has agreed it will pay in attorneys fee 
reimbursement to the CBD and WEG. The Justice Department and the 
environmental plaintiffs have petitioned the court for additional time 
to discuss settlement of the attorneys fees claim. The Court has 
granted the parties request and according to the court docket sheet, 
the CBD/WEG are to file their attorneys fee petition or a settlement 
agreement by December 8, 211. With regard to payment of attorneys fees, 
the Justice Department has already agreed that the CBD and WEG are 
``prevailing parties;'' so the only remaining question is how much 
money will be paid to these groups.
    There is also a question of how the number of species in the 
settlement agreement grew exponentially from the number of species in 
the original litigation. According to the combined complaints before 
the multi-district panel, the FWS was in alleged violation of the ESA 
by failing to timely respond to the CBD and WEG petitions for 113 
species. However, the settlement agreements expanded the number of 
species to 153. It is not clear how the environmental plaintiffs 
convinced the Justice Department to expand the workload of the FWS 
envisioned by the original Complaints. Relatedly as stated above, there 
are currently 169 species on the list since the passage of the Act in 
1979 (a period of 3 years) and these settlement agreements require 
consideration for 153 more species in just four years. If the FWS and 
NOAA cannot complete all required recovery actions for the species 
already on the list, how can the agencies continue that work if the 
list is approximately double in size?
    Additionally, although the FWS has claimed that these settlement 
agreements will help it prioritize its workload, although the 
settlement agreement limits the number of additional ESA listing 
petitions that can be filed by the CBD and WWP, those are the only two 
groups impacted by the agreements. Thus, other environmental groups 
such as National Wildlife Federation, Western Watersheds Project, 
Sierra Club, the Humane Society of the U.S. or other groups can 
continue to file listing petitions to which the FWS and NOAA have 9 
days to respond. If the federal government violates this timeline with 
relation to a listing petition filed by any other group, more ESA 
litigation will occur. Species will be added to the list, but no equal 
action is taken to get species off the list. I do not believe that 
simply adding species to the list and tying up land for habitat is the 
goal of the ESA.
B. Changes in Interpretation of Areas Designated as Critical Habitat
    Additionally, the FWS appears to have expanded its determination of 
the area to be included in critical habitat designations. Under prior 
determinations, CH was interpreted as the area specifically occupied by 
the species. The ESA defines critical habitat as including ``the 
specific areas within the geographical area occupied by the species, at 
the time it is listed . . . and . . . specific areas outside the 
geographical area occupied by the species at the time it is listed . . 
. upon a determination by the Secretary that such areas are essential 
for the conservation of the species.'' 16 U.S.C. 1532(5)(a)(I), (ii). 
The key issue for the FWS therefore is what areas are ``occupied'' by 
the species. Under past interpretations, the term ``occupied'' included 
only those areas that were actually inhabited by the species. Now, 
however, that definition seems to be expanding to also include areas 
that are used only intermittently by the listed species. The courts, 
such as the Ninth Circuit Court of Appeals, have held that they will 
defer to the FWS determination that CH can include areas used only 
intermittently by a species. See e.g. Arizona Cattle Growers 
Association v. Salazar, 66 F.3d 116 (9th Cir. 21). Recent CH 
designations have shown that the FWS expansion of the term ``occupied'' 
are more commonplace. See e.g. 75 Fed.Reg. 7686 (Dec. 7, 21) (polar 
bear CH designation); 76 Fed.Reg. 3226 (June 2, 211) (Hawaiian monk 
seal CH designation); 75 Fed.Reg. 77962 (Dec. 14 21) (Santa ana sucker 
CH designation).
C. Foreign Species Listings
    Although the United States has no jurisdiction over land use in 
foreign countries, the ESA allows species in foreign nations to be 
listed as threatened or endangered. In fact, as of November 28, 211, 
there were 59 foreign species listed on the United States threatened or 
endangered species list. http://ecos.fws.gov/tess.public. Foreign 
countries who have species on the American list include but are not 
limited to China, Mongolia, Kyrgyzstan, Pakistan, Afghanistan, India, 
Palau, Canada and Mexico.
    With regard to the reasons for listing, recent FWS releases include 
concerns about private land use in these foreign countries and climate 
change. For example, a December 28, 21 FWS foreign species press 
release states:
        All seven species face immediate and significant threats 
        primarily from the threatened destruction and modification of 
        their habitats from conversion of agricultural fields (e.g., 
        soybeans, sugarcane, and corn), plantations (e.g., eucalyptus, 
        pine, coffee, cocoa, rubber, and bananas), livestock pastures, 
        centers of human habitation, and industrial developments (e.g., 
        charcoal production, steel plants, and hydropower reservoirs).

        Although there is limited information on the specific nature of 
        potential impacts from climate change to the species included 
        in this final rule, we [FWS] are concerned about projected 
        climate change, particularly the effect of rising temperatures 
        in combination with the potential loss of genetic diversity, 
        and population isolation; and cumulative effects including El 
        Nino events. Furthermore, we have determined that the 
        inadequacy of existing regulatory mechanisms is a contributory 
        risk factor that endangers each of these species' continued 
        existence.
See Exhibit 3.
    Additionally, once a foreign species is listed on the U.S. 
threatened or endangered species list, the ESA gives the American 
government the authority to buy ``land or water or interests therein'' 
in foreign countries. 16 U.S.C. Sec. 1537.
D. Payment of Attorney Fees with No Transparency or Accountability
    The final issue I would raise with the Committee is the 
accountability and transparency of the amount of attorneys fees paid 
out of the U.S. Treasury for ESA (and other cases). The waiver of 
sovereign immunity of the federal government allowing litigation 
against the FWS and NOAA for alleged violations of the failure to list 
species or designate critical habitat is authorized under section 9 of 
the ESA. 16 U.S.C. Sec. 154(g). Because the ESA contains its own 
``citizen suit'' provision, any awarded attorneys fees come from the 
Judgment Fund. The Judgment Fund is a permanent indefinite 
Congressional authorization. 31 U.S.C. Sec. 134. ESA awards paid by the 
Judgment Fund allows ``reimbursement'' of attorneys to the ``prevailing 
party.'' 16 U.S.C. Sec. 154(g)(4).
    Although environmental groups claim that they recover attorneys 
fees only when they have proven that the government was not following 
the law, that does not seem to be the case. Based upon data collected 
from the PACER National Case Locator federal court data base, in 21 
percent of the cases filed by 14 environmental groups, attorneys fees 
were paid in cases where there was no federal court decision, let alone 
a decision that the plaintiff was a prevailing party. See e.g. Center 
for Biological Diversity v. Norton, Docket No. 5-341 (D. Az. 25). This 
data search was only conducted in 19 states and the District of 
Columbia, so I believe it is only the tip of the iceberg. With specific 
consideration of the ESA, if the federal government fails to respond to 
a petition to list a species within the 9 day time period mandated by 
the ESA, an environmental group can sue and almost always get attorneys 
fees paid. See e.g. WildEarth Guardians v. Kempthorne, Docket No. 8-443 
(D.D.C. 28). In these cases, the court is not ruling that the species 
is in fact threatened or endangered, but only that a deadline was 
missed by the FWS.
    Additionally concerning is that in 1.5% of the same cases reviewed 
through the PACER data base, the court docket sheets revealed that 
attorneys fees were paid, but no amount was given. See Exhibit 5. The 
expenditure of public funds for attorneys fees should be available to 
the public.
    Finally, while not directly related to ESA cases, there are 
attorneys fees ``settlements'' that are not well explained. Consider 
the case of WildEarth Guardians v. U.S. Forest Service, Docket No. 7-
143-JB (N.M. 21). In that case, litigated in the U.S. District Court 
for the District of New Mexico, the WildEarth Guardians lost on all 
counts and claims before the federal district judge. The WildEarth 
Guardians appealed the case to the Tenth Circuit Court of Appeals, and 
even though there was NO ruling by a court on the merits overturning 
the federal district judge's written decision, the WildEarth Guardians 
and the Forest Service jointly petitioned the federal district court to 
allow the Justice Department to voluntarily settle the case, including 
a payment of attorneys fees. The WildEarth Guardians lost their case; 
the Justice Department settled and paid attorneys fees.
    In conclusion, while neither I nor the people I represent want to 
repeal the entire Act, this testimony illustrates that there are 
significant flaws in the Act and loopholes that should be closed. The 
use of the Act now appears to be more to produce paper, than implement 
on-the-ground species and habitat improvement. American landowners can 
be important and vital partners in protecting species and the habitats 
in which they live and the American taxpayer money should be spent on 
habitat improvement rather than attorneys fees and litigation.
    Thank you.
                                 ______
                                 
    The Chairman. Thank you very much, and I apologize for 
mispronouncing your name. I made it long instead of short and I 
apologize for that.
    Ms. Budd-Falen. It is not a problem.
    The Chairman. I recognize Mr. Doug Miller, the Manager of 
the Pacific County PUD, for five minutes.

   STATEMENT OF DOUG MILLER, GENERAL MANAGER, PUBLIC UTILITY 
     DISTRICT NO. 2 OF PACIFIC COUNTY, RAYMOND, WASHINGTON

    Mr. Miller. Good morning, Chairman Hastings, Ranking Member 
Markey, and Distinguished Members of the Committee. My name is 
Doug Miller and I am the General Manager of Public Utility 
District No. 2 of Pacific County in Washington State, 
testifying on behalf of Energy Northwest and four public 
utility districts concerning the Radar Ridge wind project.
    I am pleased to have this opportunity to provide brief 
remarks concerning the project. With me today is Jim Lynch, 
Project Attorney, who will respond to any legal questions you 
may have. Jim is here behind me.
    Four public utility districts joined together to develop a 
wind energy project on Radar Ridge, located in Pacific County, 
Washington. These four project participants are members of 
Energy Northwest, a joint operating agency or JOA formed under 
the laws of the State of Washington. Energy Northwest provided 
project management and oversight for the development of the 
Radar Ridge wind project.
    The utilities pursued this project on Radar Ridge because, 
one, it was an economically attractive winter peaking wind 
energy resource; two, it would have been located in western 
Washington, avoiding further taxing of heavily loaded 
transmission lines that cross the Cascade Mountain Range; and, 
three, it would have been located on State Department of 
Natural Resources land managed for and containing existing 
industrial activities such as telecommunications towers, an 
active gravel quarry and logging operations. Another attractive 
aspect of the project was favorable financing sources obtained 
by Energy Northwest.
    The utilities applied for and were granted authority to use 
over $200 million in clean renewable energy bonds or CREBs to 
finance project construction. Energy Northwest worked closely 
with state fish and wildlife agencies and the U.S. Fish and 
Wildlife Service to conduct studies and evaluate the effects of 
the project on wildlife in the project area. The studies 
concluded that the project was not likely to have a significant 
adverse impact on any wildlife.
    To address concerns expressed by Fish and Wildlife Service 
regarding marbled murrelet, a species listed under the 
Endangered Species Act, Energy Northwest agreed to develop an 
incidental take permit in collaboration with Fish and Wildlife 
Service. The permit would have contained measures to minimize 
and mitigate the effects of the project on listed marbled 
murrelets over the life of the project. Energy Northwest spent 
considerable time developing a permit application over a span 
of two years in collaboration with the Service and thought it 
had captured the Agency's concerns.
    During the development of the ESA permit application Fish 
and Wildlife Service expressed a desire for Energy Northwest to 
sponsor the development of an environmental impact statement, 
or EIS, to analyze the potential impacts of the project on the 
environment. Energy Northwest agreed to this more lengthy 
environmental review process only after Fish and Wildlife 
Service committed to a schedule to complete the permitting 
process by December 31, 2011, over three years after the 
permitting process was first initiated.
    This date was important because it would have enabled the 
utilities to make use of the CREBs' financing. This schedule 
and the parties' agreement to work together on these matters is 
reflected in a Memorandum of Understanding executed in 2009 by 
Energy Northwest, Fish and Wildlife Service and the Bonneville 
Power Administration.
    In early 2011, it became apparent that Fish and Wildlife 
Service would be unable to complete the EIS and issue the 
permit according to the schedule contemplated in the MOU. The 
reasons for this delay by Fish and Wildlife Service were 
severalfold but included the Service's delays in securing 
contracts with a NEPA contractor and peer reviewers.
    In late 2011, after more than three years of interactions, 
Fish and Wildlife Service outlined a new project permitting 
alternative which would have rendered the project uneconomic if 
adopted. The addition of this new alternative would have 
required significant additional time to analyze, further 
delaying the process.
    In conclusion, it is highly unfortunate that the project 
could not proceed despite the best efforts of the many parties 
involved. The decision to abandon this project resulted in a 
loss of about $4 million in project development costs 
contributed by the utilities and the return of $200 million in 
CREBs to the Federal government.
    Thank you for the opportunity to provide these remarks, and 
I would be happy to answer any questions you may have about 
this project.
    [The prepared statement of Mr. Miller follows:]

              Statement of Doug Miller, General Manager, 
            Public Utility District No. 2 of Pacific County

    Good morning Chairman Hastings, Ranking Member Markey and 
distinguished Members of the Committee. My name is Doug Miller, and I 
am the General Manager of Public Utility District No. 2 of Pacific 
County in Washington State, testifying on behalf of Energy Northwest 
and four public utility districts. I am pleased to have this 
opportunity to provide these brief remarks regarding the permitting 
process surrounding the Radar Ridge Wind Energy Project.
    I am here today to tell you about an unfortunate (and expensive) 
sequence of events affecting a well-intentioned renewable energy 
project we attempted to build. My hope is that my testimony will help 
bring attention to the overly-burdensome regulatory process preventing 
construction of renewable energy projects, and lessen the risk that 
others who simply want to do the right thing for their communities 
suffer a similar fate.

Background of the Public Utilities
    Before speaking directly about the Project, I would like to provide 
you with a brief background on my Utility and the other participants in 
the Radar Ridge Wind Project. P.U.D. No. 2 of Pacific County is a 
medium-sized public utility in southwest Washington providing 
electricity service to just over 17,000 customers. Our P.U.D. offers a 
``green power'' retail product for our customers and therefore must 
purchase enough of a renewable wholesale product to cover our ``green 
power'' purchases. Historically, the District has purchased a majority 
of our wholesale power, depending on the contract period, from the 
Bonneville Power Administration (``BPA''), of which greater than 75% 
comes from hydroelectricity, a resource that is not recognized as 
renewable. Therefore, our Utility was looking at the Radar Ridge Wind 
Project for two reasons, to: (1) meet the renewable needs of our green 
power retail customers, and (2) provide an economic boost to Pacific 
County since the Project would have been constructed in our County near 
the community of Naselle.
    The other three participating utilities--Clallam, Grays Harbor, and 
Mason #3 County P.U.D.--were interested in developing the Project 
because they each have more than 25,000 customers and thus are required 
under Washington State's renewable energy standard to have 15 percent 
of their wholesale power portfolio consist of renewable sources by 
2020.
    All four Project participants are members of Energy Northwest, a 
Joint Operating Agency (``JOA'') formed under the laws of the State of 
Washington. Energy Northwest has 28 members, either public utility 
districts or municipal utilities within the State. The JOA is a 
wholesale electric utility that operates the Columbia Generating 
Station and explores and develops, with member interest, other 
generating projects such as the Nine Canyon Wind Project, and White 
Bluffs Solar Station. Energy Northwest provided project management for 
the Radar Ridge Wind Project with input from the four participants.

Overview of the Radar Ridge Project
    Energy Northwest continually prospects for potential generating 
sites and in 2006, contracted with my Utility to place a wind 
monitoring device on our communication tower atop Radar Ridge, located 
in Southwest Washington. The initial monitoring results from this 
location were encouraging--enough so that Energy Northwest asked its 
members if anyone would be interested in exploring the development of a 
wind project on Radar Ridge. The four P.U.D.'s became involved in this 
Project, and the five entities have worked for the past five years on a 
range of studies to evaluate and permit the Project, including wind 
monitoring, avian and wildlife studies, transmission connection 
agreements with the Bonneville Power Administration, a site lease with 
the Washington Department of Natural Resources (``WDNR''), and a range 
of environmental permitting documents.
    Based on the initial studies and analyses developed by Energy 
Northwest, the utilities elected to pursue the Radar Ridge Wind Project 
because:
        (1)  Radar Ridge possesses an economically attractive, winter-
        peaking wind resource that would serve the time of year during 
        the period of highest customer load;
        (2)  The Project would be located in western Washington, closer 
        to our customer loads, and would avoid further taxing heavily 
        loaded transmission lines that cross the Cascade Range;
        (3)  The Project would be located near an existing BPA 
        Substation that could be accessed via construction of a 
        relatively short, three mile transmission line;
        (4)  The Project would be located on State Department of 
        Natural Resources land already used for industrial purposes, 
        and containing existing telecommunications facilities, an 
        active gravel quarry, and active logging operations. Money from 
        the State lease for Project land would benefit Washington 
        schools as well as the local community in which the Project 
        exists; and

Clean Renewable Energy Bonds
    During the development of permitting documents for the Project, the 
Utilities, with assistance from Energy Northwest, applied to the U.S. 
Treasury Department and were granted authority to use Clean Renewable 
Energy Bonds or ``CREBs'' to finance Project construction. The 
Utilities ultimately received authority to use over $200 million in 
CREBs to finance this and one other project; however, the CREBs expire 
in the first quarter of 2013, and must be issued in advance of this 
deadline. Energy Northwest developed a Project schedule in 
collaboration with FWS and BPA to obtain Project permits by December 
31, 2011, to allow use of the CREBs.

Development of the Project Permit Application
    As a condition of Energy Northwest's lease with the WDNR, Energy 
Northwest studied the potential effects of Project construction and 
operation on marbled murrelets, a species listed under the Endangered 
Species Act (``ESA''). Energy Northwest worked closely with State fish 
and wildlife agencies, and the U.S. Fish and Wildlife Service over a 
period of several years to evaluate the effects of the Project on this 
species and other wildlife species in the Project area. The results 
from the Environmental Assessment were extensively peer reviewed. The 
studies concluded that the Project was not likely to have a significant 
adverse impact on marbled murrelets or other sensitive species.
    To address concerns expressed by FWS, Energy Northwest agreed to 
pursue an Incidental Take Permit (``ITP'') under the ESA. The permit 
would have contained measures to minimize and mitigate the impacts of 
the Project on listed marbled murrelets, and it would have authorized 
any potential take of listed marbled murrelets that could occur over 
the life of the Project. Energy Northwest engaged in a multi-year 
process with FWS to develop an acceptable application for an ITP, 
including numerous meetings, and technical workshops with the Service, 
the State, and environmental organizations. In addition, FWS performed 
an independent scientific peer review at its own expense evaluating 
scientific information contained in permit application documents. The 
level of study and peer review associated with this process remains 
unprecedented, and far exceeds any published agency policies.
    During this process of engagement, Energy Northwest worked closely 
with FWS, State wildlife agencies, and environmental organizations to 
identify Project proposals that would address environmental concerns. 
As an example, in response to suggestions from FWS, Energy Northwest 
secured an option to purchase 261 acres of murrelet habitat from a 
nearby timber company as mitigation for the Project. Energy Northwest 
developed Project proposals in an open, collaborative manner, with 
substantial opportunity provided for public comment, resulting in the 
development of an ESA permit application that was submitted to FWS in 
2011 consistent with the parties agreed schedule. FWS and the State 
wildlife agencies provided substantial input into the ESA permit 
application, and Energy Northwest believed that the application 
incorporated the agencies' comments.

Environmental Review Process
    During the development of the ESA permit application, FWS expressed 
a desire for Energy Northwest to sponsor the development of an 
Environmental Impact Statement (EIS) to analyze the potential impacts 
of the Project on the environment. Energy Northwest had previously 
concluded that the Project would have no significant environmental 
impacts, and submitted a draft EA to FWS for its use in the National 
Environmental Policy Act process. However, in the interest of 
collaborating with FWS, Energy Northwest agreed to support the 
development of an Environmental Impact Statement (``EIS''). Energy 
Northwest agreed to this more lengthy environmental review process only 
after FWS and the Bonneville Power Administration (``BPA'') agreed to 
complete the permitting process by December 31, 2011. This schedule, 
and the parties' agreements to work together on these matters, are 
reflected in a Memorandum of Understanding (``MOU'') executed in 2009. 
This permitting schedule would have enabled the Utilities to make use 
of the CREBs.
    After executing the MOU, FWS sought bids from contractors to 
prepare an EIS. FWS retained a consulting firm to develop the EIS; 
however, the process to retain the NEPA contractor took longer than 
expected, and was longer than the process contemplated in the MOU. 
Nonetheless, Energy Northwest agreed to continue to fund EIS 
development based upon the assurances provided to it by FWS that FWS 
would continue to honor agreements contained in the MOU.

Breakdown of the Process
    In early 2011, it became apparent that development of the EIS was 
significantly delayed for several reasons. First, FWS requested another 
peer review of available scientific information. The process to solicit 
and secure a contract with a qualified firm took longer than FWS 
expected. In addition, development of the EIS with the NEPA contractor 
was delayed, and deviated substantially from the schedule contained in 
the MOU. Energy Northwest tried on several occasions, working through 
BPA, to bring the Project back on schedule; however, these attempts 
were unsuccessful. At several junctures, BPA expressed frustration with 
the lack of progress on the EIS, and unresponsiveness of FWS during 
development of the draft EIS.
    In late 2011, Energy Northwest attempted to expedite completion of 
a draft EIS for public review and comment to salvage the Project and 
the CREBs. During this period, FWS indicated its intent to develop an 
alternative to the proposed permit application for inclusion in the 
EIS. After months of work, FWS outlined a new Project alternative that 
would have rendered the Project uneconomic if adopted. A comparison of 
the mitigation proposed by Energy Northwest based on the science and 
that of FWS under this new alternative is depicted below:

[GRAPHIC] [TIFF OMITTED] T1642.001


    .epsAlso, the addition of this new alternative would have required 
significant additional time to analyze in the EIS, making it highly 
unlikely that a final ESA permit would be issued on the schedule 
contemplated in the MOU. Energy Northwest communicated these concerns 
to FWS and BPA on several occasions; however, Energy Northwest was 
unable to resolve this situation. As a result, Energy Northwest was 
left with no choice but to abandon the Project, and relinquish its CREB 
allocation.

Conclusion
    In conclusion, it is highly unfortunate that the Radar Ridge Wind 
Project could not proceed despite the best efforts of the many parties 
involved, including FWS, BPA, State agencies, environmental 
organizations, and the Utilities. The decision to abandon this Project, 
resulting in the loss of $4 million in Project development costs 
contributed by the Utilities, and the return $200 million in CREBs to 
the federal government, is not something the Utilities take lightly. 
The decision to abandon this Project was reached after careful 
deliberation, and after years of attempting in good faith to make the 
process work.
    The Project had, and continues to have, overwhelming support in 
Pacific County, and would have provided substantial economic and 
environmental benefits to the State of Washington. A unique aspect of 
this Project was that it was located on State trust lands, and money 
generated under the State lease would have benefited public schools in 
the State of Washington as well as Pacific County through revenue 
sharing agreements. The Project would have also generated 250-300 
temporary jobs and 9 permanent positions in Pacific County, along with 
indirect benefits to local businesses serving this workforce. Pacific 
County has been particularly hard-hit by the economic down turn, and 
these jobs and related tax revenues will be sorely missed by our local 
citizens.
    I am here today not simply to explain to you the unfortunate 
history of Radar Ridge, but as a public official, I am also here to 
help sort out how we avoid repeating these types of situations in 
Washington, and other similar communities. A lesson I would take away 
from this experience is that a more transparent, reliable permitting 
process is needed under the ESA to permit renewable energy projects. I 
would also say that more formal oversight by Congress of the permitting 
process is needed to insure that waste of public resources can be 
avoided. Finally, I would say a need exists for independent review of 
FWS decisions, short of litigation, to insure that the agency makes its 
decisions without delay, and on the basis of the best available 
scientific information.
    Thank you for the opportunity to provide these remarks.
                                 ______
                                 
    The Chairman. Thank you very much, Mr. Miller.
    Next I will recognize Mr. Kieran Suckling, the Executive 
Director of the Center for Biological Diversity in Tucson. You 
are recognized, Mr. Suckling.

 STATEMENT OF KIERAN SUCKLING, EXECUTIVE DIRECTOR, CENTER FOR 
             BIOLOGICAL DIVERSITY, TUCSON, ARIZONA

    Mr. Suckling. Thank you for inviting me, Mr. Chairman. I 
have a PowerPoint presentation here. If we could go to the next 
slide.
    Yes, we have heard that the Endangered Species Act is not 
successful because only 1 percent of species have been removed 
from the Act. This is a critique we have been hearing for a 
decade or more, but it really begs the question how many should 
have been removed by now, and it presumes without any evidence 
whatsoever that hundreds or all of them should have been 
removed by now. This question has been looked at by the GAO 
recently, by scientists, and what they have all concluded is 
that the work of recovering species takes many decades. That 
work is outlined in Federal recovery plans. Of all the species 
on the endangered species list today, on average, they have 
been on the list for 21 years. The Federal recovery plans on 
average require 42 years for listing, so these species are only 
halfway through the government's recovery program.
    So to assert that somehow they have failed because they did 
not recover twice as fast as the scientific plan to recover 
them says really doesn't make any sense. It is a lot like 
someone starting a 10-day course of antibiotics and declaring 
on day one the antibiotics don't work, I'm going to stop taking 
them.
    So I want to go through a few slides to show the recovery 
trend of species versus their recovery time. If we can go to 
the next slide. This is the whooping crane. It was listed as an 
endangered species in 1967. Its Federal recovery plan says it 
will take 83 years to recover the species. It will recover in 
2050. During that time it has increased from 54 pairs to 599. 
This is an endangered species success story, not a failure, and 
it is on the road to recovery.
    Next slide. This is the nene or the Hawaiian goose. It was 
listed in 1967. Its recovery plan says it will be listed in 
2034. That is 67 years. Meanwhile it has increased from 875 
birds to over 1,700 birds. It is on its way to recovery. It is 
another success.
    We have another side, please. Florida panther, its recovery 
plan says it is going to take 116 years to recover the Florida 
panther listed in 1967. It is not slated to come off the list 
until 2083. After a very rocky start, it is on a steady upward 
swing right now. Much, much too early to declare the Endangered 
Species Act a failure for this species.
    Could we have the next slide? This is actually a picture of 
the Chairman and the Ranking Member discussing the Endangered 
Species Act.
    [Laughter.]
    Could we have the next slide? No, it is actually the Utah 
prairie dog. This is a territorial display. These guys actually 
fight each other and bump heads like big horn sheep, only much 
more exciting. So it was put on the endangered species list in 
1973. Its recovery plan says it is going to take 67 years, and 
as you can see, it is on an upward trajectory. There is over 
11,000 of them now, growing from about 3,000 back in 1973.
    Next slide. Shortnose sturgeon in the Hudson River. Its 
recovery plan says it is going to take 57 years from its 
listing in 1967 to recover. It is well on its way, increasing 
from 12,000 fish to 56,000 fish. This species will actually 
probably be recovered in advance of its slated recovery date.
    Could we go to the next slide? So, when we look about how 
to measure the success of the Endangered Species Act, asking 
species to recover before the recovery plan say they should is 
not a good measure. What we should be asking is are we 
preventing extinction? Are we putting species on the road to 
recovery? And are they recovering in the right speed that we 
expect them to in relationship to their recovery plans?
    So can we go to the next slide, please? So, in terms of 
extinction, 10 species have been removed from the list due to 
extinction. Only two of those went extinct after they were 
listed. The ESA is 99.9 percent effective in preventing 
extinction.
    The next slide, please. To determine whether species are 
moving toward recovery at the proper rate, we examined every 
single native species in the eight northeast states. What we 
found was that 93 percent of all of those species are on a path 
toward recovery, the populations are increasing, and 82 percent 
were downlisted or delisted in the timeframe set out by the 
recovery plans, so in fact the ESA has been very successful in 
doing what it is supposed to do. It is far from a failure.
    Could I have the next slide, please? Next. I guess we are 
done there.
    Then I want to mention one more thing finally in response 
to the settlement agreement that the Department of the Interior 
recently signed with the Center and with WildEarth Guardians. 
Karen Budd-Falen said it would require the designation of 1,053 
critical habitats. That is entirely incorrect. The agreement 
covers I think about 10 critical habitats, not 1,053.
    The agreement primarily requires the Agency to make final 
listing decisions on 251 species on its priority list. These 
are the priority identified by the U.S. Fish and Wildlife 
Service.
    The Chairman. Mr. Suckling, could you please----
    Mr. Suckling. I will be done in one second, and the 
settlement simply allows them to finish their own priorities, 
sir.
    [The prepared statement of Mr. Suckling follows:]

           Statement of Kieran Suckling, Executive Director, 
                    Center for Biological Diversity

The effectiveness of the Endangered Species Act cannot be measured by 
        the number of delisted species because the vast majority of 
        species have not yet reached their scheduled recovery date.
``Evaluating success as a measure of how many species are delisted is a 
        non-informative metric.''

The Performance of the Endangered Species Act--Schwartz (2008)
``The recovery plans we reviewed indicated that species were not likely 
        to be recovered for up to 50 years. Therefore, simply counting 
        the number of extinct and recovered species periodically or 
        over time, without considering the recovery prospects of listed 
        species, provides limited insight into the overall success of 
        the services' recovery programs.''

Endangered Species: Time and Costs Required to Recover Species Are 
        Largely Unknown--Government Accountability Office (2006)
    Critics of the Endangered Species Act often complain that the law 
is failing because only 1% of endangered species have recovered and 
been removed from the list. These critics, however, have never 
explained why they think more species should have recovered by now. 
They conspicuously fail to provide scientific support for the 
contention. They fail because the claim is illogical and contrary to 
scientific expectations. As quoted above, scientists and the U.S. GAO 
have examined the critique and declared it meaningless.
    It is meaningless because the timeline and action blueprint for 
recovery of endangered species is established in federal recovery plans 
and those plans stipulate that few species should have been recovered 
by now. There are currently 1,396 species protected under the 
Endangered Species Act. On average, they have been on the list 21 
years. Their federal recovery plans, however, expect that on average 
they will take 42 years from listing to be recovered. To complain that 
a species did not recover 21 years prior to the conservation timeline 
established in its recovery plan is like declaring an antibiotic to be 
a failure because it did not cure an infection on the first day of a 
ten day course.
    Hundreds of listed species have strong recovery trends but, as per 
their federal recovery plans, will not reach full recovery for several 
decades. Their progress is indicative of the Endangered Species Act's 
effectiveness despite the fact they are not yet recovered. Here are 
just a few examples:
    Whooping Crane. The whooping crane was listed as an endangered 
species in 1967. Its recovery plan anticipated downlisting to 
threatened status in 2035, 68 years from listing. Full delisting would 
likely take until at least 2050, 83 years from listing. The population 
has grown from 54 birds (48 wild and 6 captive) at the time of listing 
in 1967 to 599 in 2011.
    Shortnose Sturgeon. The shortnose sturgeon was listed as an 
endangered species in 1967. Its recovery plan anticipates delisting in 
2024, 57 years from listing. Most of the sturgeon's 19 distinct 
populations have increased. The majority of fish occur in the Hudson 
River population, which increased from 12,669 fish in 1979 to 56,708 in 
1994-1996.
    Hawaiian Goose. The Hawaiian goose was listed as endangered in 
1967. Its recovery plan anticipates delisting in 2034, 67 years from 
listing. The population increased from 300 birds in 1980 to 1,744 in 
2006.
    Florida Panther. The Florida panther was listed as endangered in 
1967. Its recovery plan anticipates delisting in 2083, 116 years from 
listing. Panthers increased substantially from about 30-40 individuals 
in the 1980s to 87 in 2003 and 130 in 2010.
    Utah Prairie Dog. The Utah prairie dog was listed as endangered in 
1973 and downlisted to threatened in 1984. Its recovery plan 
anticipates delisting in 2040, 67 years from listing. The number of 
prairie dogs increased from 3,300 in 1973 to 11,296 in 2010.

Measured by its three goals, the Endangered Species Act is remarkably 
        effective.
    ``Critics, on the other hand, counter that it is an indication of 
the act's failure that only 17 of these species have ``recovered,'' or 
improved to the point that they no longer need the act's protection. 
However, we believe that these numbers, by themselves, are not a good 
gauge of the act's success or failure; additional information on when, 
if at all, a species can be expected to fully recover and be removed 
from the list would provide needed context for a fair evaluation of the 
act's performance.''

Endangered Species: Time and Costs Required to Recover Species Are 
        Largely Unknown--Government Accountability Office (2006)
    The Endangered Species Act is designed to prevent declining species 
from going extinct, turn their populations around so they increase 
toward recovery, and achieve recovery on the timeline set out in their 
federal recovery plans. As described below in greater detail, the 
Endangered Species Act has been remarkably effective on these three 
fronts:
        Prevention of extinction: 99.9 percent effective
        Population growth toward recovery goals: 93 percent effective
        Recovery within the time frame established by federal recovery 
        plans: 82 percent effective

Goal 1: Extinction Prevention
    Ten species have been delisted because of extinction. Eight of 
these were extinct before being protected under the Endangered Species 
Act. Two went extinct while listed. Thus the Act has 99.9-percent 
success rate in preventing the extinction of the 1,445 species placed 
on the domestic threatened and endangered lists.

[GRAPHIC] [TIFF OMITTED] T1642.002


    .epsIt should be noted that even without protection, not all 1,445 
species would have become extinct by 2011. The polar bear, for example, 
is projected to be extirpated from the United States by 2050 and become 
completely extinct by the turn of the century if its habitat is not 
stabilized. To determine how many species would likely have gone 
extinct by now, U.S. Geological Survey scientist Michael Scott compared 
the actual and projected extinction rate of listed species, finding 
that Endangered Species Act prevented the extinction of 227 species 
(Scott and Goble 2006).

Goal 2: Moving Species Toward Recovery
    On a biennial basis, the U.S. Fish and Wildlife Service scores all 
listed species as improving, stable, declining or unknown. Sixty-eight 
percent of species listed for at least six years with a known score 
were stable or declining (U.S. Fish and Wildlife Service 2005). This is 
impressive, given that most species are declining and at very low 
population numbers at the time they are listed (Wilcove et al. 1993). 
It must be noted, however, that these trend scores only reflect a brief 
two-year period; they don't cover the trend since listing. The data are 
also limited because they include threat assessments, rather than being 
limited to population-size trends. This is not to say the data are 
erroneous or in any way wanting, they are simply not designed to reveal 
long-term, quantitative species population trends.
    The largest study to quantitatively examine changes in population 
size since species were listed is Measuring the Success of the 
Endangered Species Act: Recovery Trends in the Northeastern United 
States (Suckling 2007). It examined the population trend and federal 
recovery plan expectations of all threatened and endangered species in 
the eight Northeast states: Maine, Vermont, New Hampshire, 
Massachusetts, Connecticut, Rhode Island, New York and New Jersey. It 
found that:
          None of the species went extinct after being listed.
          93 percent increased in population size or remained 
        stable since being listed.

Goal 3: Recovery Within the Time Frame Established by Federal Recovery 
        Plans
    The Northeast species were listed for an average of 24 years, while 
their federal recovery plans established recovery processes averaging 
42 years. Thus not surprisingly, the recovery plans only expected 11 of 
the species to have been delisted. In fact, nine had been delisted, 
downlisted or proposed for such action. That the actual recovery trend 
is so close to that expected by recovery plans (=82 percent) is 
promising, given that the vast majority of the recovery plans were 
substantially underfunded.

Litigation has aided recovery efforts
    Listing under the Endangered Species Act, the length of time 
listed, and the existence of critical habitat are correlated with 
positive recovery trends (Suckling et al. 2004, Taylor et al. 2007). 
Unlisted species have a much higher extinction rate than listed 
species. Species are more likely to be improving the longer they are 
listed. Species are twice as likely to be improving if they have 
critical habitat than if they do not.
    A large percent (possibly the majority) of environmental lawsuits 
have sought to place species on the endangered species list and 
designate critical habitat for those already on the list. Environmental 
litigation has thus consciously sought to maximize actions known to 
improve species recovery status. The vast majority of these lawsuits 
have succeeded, causing the rate of species listings, the length of 
species listings and the designation of critical habitat designation to 
increase (Taylor et al. 2007, Greenwald et al. 2006, Parenteau 2005).
    The third most common type of environmental litigation has been to 
ensure that federal agencies consult with the U.S. Fish and Wildlife 
Service or the National Marine Fisheries Service when they conduct 
actions which may jeopardize the existence of endangered species. These 
consultations rarely stop projects from occurring, but often result in 
their negative impacts being reduced and/or mitigation measures being 
increase.
    An example of this type of litigation is a suit by the Center for 
Biological Diversity forcing the Bureau of Reclamation to consult with 
the U.S. Fish and Wildlife Service over its plan to increase the height 
of Roosevelt Dam on the Salt and Tonto Rivers in central Arizona. The 
consultation allowed the project to occur, but required the Bureau to 
expend $4 million purchasing and managing riparian habitat for the 
Southwestern willow flycatcher on the San Pedro River. The riparian 
habitat on that area has been restored, its flycatcher population has 
increased in size, and is the species is closer to meeting its recovery 
goal.
    Another example is litigation by the Center for Biological 
Diversity forcing the Bureau of Land Management to consult with the 
U.S. Fish and Wildlife over the impact is grazing, mining, and road 
building programs were having on 24 threatened and endangered species 
within the 24 million acre California Desert Conservation Area. Most of 
the activities were allowed to continue with mitigation measures and 
safeguards, some grazing allotments were purchased to eliminate sheep 
grazing, and some portions of some roads were closed. These actions 
have greatly benefited endangered species there, contributing to the 
population growth of the desert bighorn sheep and other listed plants 
and animals.

Expenses associated with Endangered Species Act litigation are a very 
        small portion of the U.S. Fish and Wildlife Service's budget
    In a September 11, 2011 letter to the Association of Fish and 
Wildlife Agencies (see Attachment A), the U.S. Fish and Wildlife 
Service disclosed that in 2010 it spent $1.24 million to ``manage, 
coordinate, track, and support ESA litigation'' brought by 
environmental and industry groups. This amounts to one half of one 
percent of the endangered species budget, which was over $275 million 
in 2010. According to the letter, the amount the Service spent on 
litigation has remained relatively constant over the last ten years, 
meaning 2010 was a typical year in terms of the very small percentage 
of the endangered species budget that is spent managing litigation.

A large percent of Endangered Species Act litigation is brought by 
        industry groups
    Industry groups, lobbyists and lawyers--and many in Congress 
closely associated with them--have complained that environmental groups 
file too many Endangered Species Act lawsuits. These groups, however, 
have never complained about lawsuits filed by industry groups. Nor have 
they provided evidence that environmentalists file more lawsuits--or 
more expensive lawsuits--than industry interests.
    In fact, 80% of all active critical habitat litigation in 2005 was 
filed by industry groups (Parenteau 2006).
    Similarly, the U.S. Government Accountability Office (USGAO 2011) 
recently found that industry groups filed 48% of lawsuits against the 
Environmental Protection Agency while environmental groups filed 30%.

The Center for Biological Diversity receives little income from federal 
        litigation fee and cost recovery
    Despite wildly erroneous and highly exaggerated claims by Karen 
Budd-Falen and other industry funded ``researchers'', the Center for 
Biological Diversity receives little money from recovery of fees and 
costs in federal litigation, and even less under the Equal Access to 
Justice Act:

[GRAPHIC] [TIFF OMITTED] T1642.003


    .epsBudd-Falen's complaints and calls for disclosure of 
environmental group fee awards are extraordinarily hypocritical in that 
her law firm receives substantial income from fee returns, yet she has 
never disclose the amount. Indeed in 2001, Budd-Falen received $100,000 
from a single lawsuit fee return, dwarfing retained federal fees from 
all Center for Biological Diversity suits in that year ($2,295).
    Another example this hypocrisy is the Pacific Legal Foundation. 
While railing against environmental groups for recovering litigation 
fees and costs, it often recovers much greater sums than the Center for 
Biological Diversity. In 2008, for example, the Pacific Legal 
Foundation recovered $1,400,577 in fees, dwarfing the Center's 
retention of just $365,477 in federal fees and costs. In 2009, the 
Pacific Legal Foundation recovered $793,358, while the Center retained 
just $341,676.
    Note the Center is not complaining about Budd-Falen or the Pacific 
Legal Foundation recovering legal fees and costs. Such awards are a 
proper and integral part of our legal system. They level the playing 
field so that all Americans have equal access to justice.
    Our complaint is that such groups and their Congressional allies 
hypocritically ignore all industry suits and fee recoveries, while 
complaining bitterly about environmental suits. It is clear that their 
interest is not all about litigation or fee recovery in general, it is 
only about litigation they believe hinders the access of their industry 
allies to public resources.

References

Greenwald, D.N., K.F. Suckling and M.F.J. Taylor, M.F.J., 2006. Factors 
        Affecting the Rate and Taxonomy of Species Listings under the 
        US Endangered Species Act. In Goble, D, Scott, M.J. & Davis, 
        F.W. (eds.), The Endangered Species Act at Thirty: Renewing the 
        Conservation Commitment. Island Press.
Miller, J.K., M.S. Scott, C.R. Miller and L.P. Waits. 2002. The 
        endangered species act: dollars and sense? BioScience 52:163-
        168.
Parenteau, P. 2005. An empirical assessment of the impact of critical 
        habitat litigation on the administration of the Endangered 
        Species Act. Vermont Law School Faculty Papers. Paper 1. http:/
        /lsr.nellco.org/vermontlaw_fp/1
Schwartz, M.W. 2008. The Performance of the Endangered Species Act. 
        Annu. Rev. Ecol. Evol. Syst. 2008. 39:279-99
Scott, J.M., D.D. Goble, L.K. Svancara and A. Pidgorna. 2006. By the 
        Numbers in The Endangered Species Act at Thirty: Renewing the 
        Conservation Promise (Dale D. Goble et al. eds. 2006).
Suckling, K.F., R. Slack and B. Nowicki. 2004. Extinction and the 
        Endangered Species Act. Center for Biological Diversity, 
        Tucson, AZ.
Suckling, K.F. 2007. Measuring the Success of the Endangered Species 
        Act: Recovery Trends in the Northeastern United States. Center 
        for Biological Diversity, Tucson, AZ. www.esasuccess.org/
        reports/northeast
Taylor, M.F.J., K.S. Suckling and J.J. Rachlinski JJ. 2005. The 
        effectiveness of the Endangered Species Act: A quantitative 
        analysis. BioScience 55:360-67
U.S. Fish and Wildlife Service. 2005. Report to Congress on the 
        Recovery of Threatened and Endangered Species, Fiscal Years 
        2003-2004. U.S. Department of Interior, Washington, D.C.
U.S. Government Accountability Office. 2006. Endangered Species: Time 
        and Costs Required to Recover Species are Largely Unknown. 
        Washington, D.C.
U.S. Government Accountability Office. 2011. Environmental Litigation: 
        Cases against EPA and Associated Costs over Time. Washington, 
        D.C.
Wilcove, D., M. McMillan, and K. Winston. 1993. What exactly is an 
        endangered species? An analysis of the U.S. endangered species 
        list: 1985-1991. Conservation Biology 7:87-93.
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    The Chairman. Thank you very much. Next we will hear from 
Mr. Jay Tutchton, who is General Counsel for WildEarth 
Guardians in Santa Fe. Mr. Tutchton.

     STATEMENT OF JAY TUTCHTON, GENERAL COUNSEL, WILDEARTH 
                GUARDIANS, SANTA FE, NEW MEXICO

    Mr. Tutchton. Thank you, Chairman Hastings. Jay Tutchton, 
General Counsel, WildEarth Guardians. I am testifying on behalf 
of the organization. I am also an adjunct professor of law at 
the University of Denver. I previously helped run the 
Environmental Law Clinic at the University of Denver and at the 
University of Colorado. I have probably been counsel in over 
100 Endangered Species Act cases.
    The Chairman. Could you move the microphone a little bit 
closer to you?
    Mr. Tutchton. Is that better?
    The Chairman. That is better, much better. Thank you.
    Mr. Tutchton. I was saying I have probably been counsel in 
approximately 100 Endangered Species Act cases. I am afraid I 
am one of the lawyers that you directed your opening comments 
at.
    There is some evident controversy over the Endangered 
Species Act here in D.C. However, across the Nation it is 
broadly supported. In 1999, it was strongly supported or 
supported by 84 percent of the American public in all regions 
of the country. In February of this year, an identical 84 
percent of the American public supported the Endangered Species 
Act. Cuts across party lines, 93 percent of Democrats support 
the Endangered Species Act and 74 percent of Republicans.
    The Act is popular, but to paraphrase Martin Luther King, 
``Vanity asks the question is something popular, conscience 
asks the question is it right.'' As I tried to present in my 
written testimony, it is also right. Scientists agree we are in 
the midst of an extinction crisis. Scientists agree this 
extinction crisis is human-caused. There is obviously a moral 
dimension to protecting endangered species. There is also a 
self-interest in protecting endangered species. It is prudent 
and conservative for a committee charged with natural resources 
conservation to want to protect biodiversity just as it is to 
protect timber or other Federal resources.
    Losing species to extinction is like burning the books in 
nature's library. We will never know their benefits or their 
values if we lose them before we have even read them. The 
Endangered Species Act comes in for criticism for protecting 
bugs and weeds. I think this is a wrong-headed criticism. Much 
of the focus is on the big guys, the wolves, the bears, the 
eagles, the alligators. It is the little guys, the 99 percent 
if you will that actually run the world. These are the plants 
that give us our drugs. These are the insects that pollinate 
our crops and maintain our soil. The major species inspire and 
delight us. It is the minor species that actually keep us 
alive.
    As Mr. Suckling testified, the Endangered Species Act is 
working. I would like to turn my testimony to the issue of 
attorneys' fees since that has come up.
    Now there is two claims out there, that we are filing 
frivolous lawsuits and that we are getting paid too much for 
doing so. Both cannot be true. If we file a frivolous lawsuit, 
we do not get paid. In fact, we should have to pay the other 
side's attorneys' fees, and it would be unethical to do so. As 
to the charge that we are doing this for money, it is the Equal 
Access to Justice Act signed by President Reagan to ensure that 
citizens had a chance against the Federal government in court. 
It has been used by my clients. It has been used by Ms. Budd-
Falen's clients. It is equal access. It is not exclusive to 
either side.
    To recover fees under this Act, you have to both win your 
case against the Federal government and prove that the 
government's defense was not substantially justified. That is a 
hard standard to meet. Once you make those two findings of 
proof, that gets you entitlement to fees but not the amount. 
The amount is then decided by a Federal judge who reviews it 
for reasonableness. The Federal judges appointed and confirmed 
by Congress are by and large very reasonable and prudent people 
who view these settlements and do not willingly hand away 
Federal resources.
    The vast majority of cases that WildEarth Guardians have 
filed have dealt with enforcing deadlines when Congress has 
provided the agency a deadline to do something and the agency 
has failed to meet that deadline. Before we can file any of 
these lawsuits under the Endangered Species Act we must write 
what is called a 60-day notice letter pointing out to the 
agency the specific violation of law of which we are going to 
accuse them, asking them to change their mind and come into 
compliance with the law, and only after the failure of that 60-
day notice letter to deter the illegal agency conduct can we 
file any lawsuit.
    In my last 30 seconds I would just like to give you the 
actual numbers to put the scope of what you feel is a problem 
in perspective, to address the white whale as the Ranking 
Member indicated. In 2008, WildEarth Guardians recovered 
$10,000 in attorneys' fees from the Federal government. In 
2009, we recovered $94,000. In 2010, we recovered $163,000. In 
all of those years it was less than 10 percent of our budget. 
We do not do this for the money. We do this to protect the 
species. Thank you.
    [The prepared statement of Mr. Tutchton follows:]

  Statement of James J. Tutchton, General Counsel, WildEarth Guardians

Introduction
    The Endangered Species Act is our nation's primary wildlife 
conservation statute designed to protect biological diversity. It grew 
out of an emerging consensus that the protection of both charismatic 
animals and other lesser-known species, once deemed valueless, is 
necessary if we are to succeed in protecting not only the species we 
find charismatic, but also the ecosystems on which they, and ultimately 
we, depend. As human understanding has grown, we have learned that 
ecosystems, not unlike a woven sweater, can begin to unravel when even 
a single thread is pulled out. When many threads are pulled, holes 
develop, and what was once a warm and protective sweater no longer 
exists. The same is true for an ecosystem that loses its parts, even 
those that may at first blush seem minor. For example, scientists have 
recently learned that a species as imposing as the grizzly bear, 
monarch of the Yellowstone ecosystem, relies on a species as little 
noticed as the white-bark pine for its survival--and that protecting 
the bear alone without the pine is inadequate, for the bear would have 
little to eat at certain times of year. The Endangered Species Act 
encompasses this scientific understanding of the interconnection 
between species, protecting both greater species and the smaller ones 
that allow the great creatures to survive. In the end, by protecting 
the full range of the tangled, and still poorly understood, web of life 
the Act ultimately protects humanity itself.
    Because the Act protects species, as it must, wherever they are 
found, regardless of land ownership, and because it protects all 
species great and small, regardless of their popularity or immediately 
perceived value to humanity, it has engendered a continuing level of 
controversy. However, this controversy neither indicates that the task 
of protecting biodiversity is unimportant or unpopular, nor that the 
Endangered Species Act is not working as intended.
    There are two false assumptions imbedded in the title of this 
hearing. First, that litigation directed at enforcing the Endangered 
Species Act is costing jobs. Second, that litigation enforcing the Act 
is impeding true recovery efforts. Both of these misguided charges 
obscure more meaningful inquiry into the source of the problems some 
members of this Committee apparently perceive.
    Litigation is a tool to enforce the law. Congress writes our laws, 
but it generally must rely on the executive branch to enforce them. 
However, at times, especially when Congress is concerned about whether 
the executive branch is willing or able to enforce a particular law, 
Congress has enacted provisions encouraging private citizens to 
enforce, or compel the executive branch to follow, the law. These 
``citizen-suit'' provisions, found in most environmental and civil 
rights statutes, represent a bedrock principle of our democracy: the 
idea that citizen oversight can make our government institutions 
better. They are most useful in situations where the volume of legal 
enforcement necessary to fully implement a law may outgrow the capacity 
of federal agencies, where the desire of private litigants to enforce 
the law may exceed that of federal officials, or when a law places 
obligations, such as deadlines for action, on federal agencies and 
Congress desires outside help to ensure that these federal agencies 
comply with the law. The citizen-suit provision in the Endangered 
Species Act serves all three of these functions.
    Accordingly, because litigation, whether conducted solely by 
government prosecutors or by private citizens, is merely a tool to 
increase compliance with the law, a charge that litigation is costing 
jobs is, at base, a charge that enforcing the law is costing jobs. 
There is little difference between having a law that is unenforced or 
unenforceable, and having no law at all. Thus, to the extent some 
members of this Committee perceive a conflict between enforcement of 
the Endangered Species Act and economic activity, this Committee should 
be not be considering whether it wants the law Congress has passed 
enforced via litigation, but whether it likes the law it has written or 
believes it should be amended. The question of whether the Endangered 
Species Act should be enforced is only a component of the larger issue: 
what does Congress think of the Act itself?
    Similarly, the second false assumption imbedded in the title of 
this hearing, that litigation to enforce the Endangered Species Act is 
impeding the recovery of species, also serves to obscure the 
fundamental inquiry. The clearly stated goal of the Endangered Species 
Act is to recover species from the edge of extinction. Congress drafted 
the various provisions of the Act to achieve this end. Thus, if members 
of this Committee perceive a conflict between enforcing the Endangered 
Species Act through litigation and achieving the Act's goal of 
recovering species, the source of the perceived problem is not with the 
enforcement of the Act, but with the Act's efficacy. Enforcement is 
simply implementation. The Committee's concern should be with whether 
the law works when enforced, not with limiting enforcement. Unenforced 
laws are worse than meaningless because they engender disrespect for 
both the rule of law and the legal system.
    In short, the two assumptions contained in the title of this 
hearing hide more fundamental questions that should be explored. The 
basic inquiry here is not, and should not be, whether litigation 
directed at enforcing the Endangered Species Act is a problem, but 
whether Congress wants the Endangered Species Act enforced as written 
and believes it is effective in meeting its goals. To focus on the 
litigation enforcing the law as the source of the problems some members 
of this Committee perceive masks the actual conflict. Simply put, if 
this Committee does not want the Endangered Species Act enforced--it 
does not want the Act. This Committee should openly acknowledge and 
debate the root cause of the problems some of its members perceive. 
Unfortunately, the title of this hearing indicates this Committee may 
be inappropriately focused on shooting the messenger, those who 
litigate to enforce the Endangered Species Act, rather than examining 
the questions behind the message: Are endangered species worth saving, 
does this nation remain committed to the saving them, and is the 
Endangered Species Act an effective means to achieve this end? As 
discussed below, the answer to these questions is clearly--yes.

I. The Endangered Species Act is Needed

A. The Endangered Species Act Protects Valuable Natural Resources
    The vast variety of species with which humans share this planet are 
of incalculable value to us. As stated by Representative Evans on the 
House floor in 1982:
        [I]t is important to understand that the contribution of wild 
        species to the welfare of mankind in agriculture, medicine, 
        industry, and science have been of incalculable value. These 
        contributions will continue only if we protect our storehouse 
        of biological diversity. . .[O]ur wild plants and animals are 
        not only uplifting to the human spirit, but they are absolutely 
        essential--as a practical matter--to our continued healthy 
        existence.
128 Cong. Rec. 26,189 (1982) (Statement of Rep. Evans of Delaware).
    As Americans, we have celebrated the comeback of the bald eagle, 
the very symbol of our country, from a low of 487 nesting pairs in the 
continental United States to more than 9,000 nesting pairs. In large 
part, the Endangered Species Act is responsible for the eagle's 
recovery. Similarly, we now enjoy the company of approximately 3 
million American alligators, a species we almost lost before it was 
protected under the Act and quickly recovered. The whooping crane, a 
symbol of wisdom, fidelity, and long life in many cultures, has also 
benefited from protection under the Endangered Species Act, rebounding 
from a low of 16 individuals to approximately 400. However, though the 
Act has prevented the extinction of this species, the Whooper is not 
yet ready to graduate from the Act's protection. Such charismatic 
creatures the Act has pulled back from the brink of extinction are 
frequently invoked in hearings on the Endangered Species Act. The law, 
however, does not deny its protective shield to creatures whose 
pictures may never grace a wildlife calendar.
    While some have criticized the Endangered Species Act for 
protecting ``bugs and weeds,'' these invertebrates and plants are 
frequently of the most utilitarian value to humans. As expressed by 
Harvard professor E. O. Wilson, if we do not protect the little things 
that run the world:
        New sources of scientific information will be lost. Vast 
        potential biological wealth will be destroyed. Still 
        undeveloped medicines, crops, pharmaceuticals, timber, fibers, 
        pulp, soil-restoring vegetation, petroleum substitutes, and 
        other products and amenities will never come to light. . .it is 
        also easy to overlook the services that ecosystems provide 
        humanity. They enrich the soil and create the very air we 
        breathe. Without these amenities, the remaining tenure of the 
        human race would be nasty and brief. The life-sustaining matrix 
        is built of green plants with legions of microorganisms and 
        mostly small, obscure animals--in other words, weeds and bugs.

The Diversity of Life at 346-47.
    On a global scale, 25 to 40 percent of pharmaceutical products come 
from wild plants and animals. Kellert, Stephen R., The Value of Life: 
Biological Diversity and Human Society (1996). A full 70 percent of 
pharmaceutical products are modeled on a native species, despite only 
0.1% of plant species having been examined for their medicinal value. 
Dobson, Andrew P. Conservation and Biodiversity, Scientific American 
Library (1996). Invertebrate pollinators are also of high value to 
humanity. A variety of pollinators, such as some butterflies and bats, 
are currently protected by the Endangered Species Act, although others 
are not. The loss of pollinators threatens ecological and economic 
systems across the country. Committee of the Status of Pollinators in 
North America, National Research Council, Status of Pollinators in 
North America, National Academies Press (2006).
    One of the Endangered Species Act's explicit purposes is ``to 
provide a means whereby the ecosystems upon which endangered species 
and threatened species depend may be conserved.'' 16 U.S.C. 
Sec. 1532(b). This vision of ecosystem protection appears frequently 
throughout the Act's legislative history. Rosmarino, Nicole J., 
Endangered Species Act Under Fire: Controversies, Science, Values & the 
Law, University of Colorado (2002) The economic benefits healthy 
ecosystems provide humanity dwarf even our national debt. Economists 
estimate the global value of ``ecosystem services'' at $33 trillion 
annually and in the U.S. alone at $300 billion annually. Pimentel, 
David, et al., Economic and Environmental Benefits of Biodiversity, 
BioScience 47(11) (1997) at 747-57; Costanza, R. et al., The Value of 
the World's Ecosystem Services and Natural Capital, Nature 387 (1997) 
at 253-260. Even these dramatic estimates are conservative, as the 
value of ecosystems ultimately equates to the value of everything--as 
without ecosystems humans could not survive. Leakey, Richard et al., 
The Sixth Extinction: Patterns of Life and the Future of Humankind 
(1995). Moreover, most of the services, currently provided to us for 
free by ecosystems, are so intricate and provided on such a massive 
scale that it would not be feasible to replicate them at any cost even 
if scientists possessed the knowledge to do so. The tremendous value of 
ecosystems is placed at risk by the continued erosion of the 
biodiversity. Ehrlich, Paul R. and Wilson, E.O., Biodiversity Studies: 
Science and Policy, Science 253 (1991) at 758-62.
    Additionally, endangered species are of great aesthetic, symbolic, 
and recreational value. Animals and nature are ubiquitous in our 
children's fairly tales and stories, which inform social codes of 
conduct. Continued destructiveness towards nature may consequently 
impact human cognition and social relations. ``The more we know of 
other forms of life, the more we enjoy and respect ourselves. Humanity 
is exalted not because we are so far above other living creatures, but 
because knowing them well elevates the very concept of life.'' Wilson, 
Edward O. Biophilia: The Human Bond with Other Species, Harvard 
University Press (1984) at 115. The recreational value of wildlife is 
also very significant. The U.S. Fish and Wildlife Service has 
determined that approximately 87 million adult Americans, or 38 percent 
of the adult population, spend more than $120 billion in the course of 
wildlife-related recreation annually. These expenditures support 
hundreds of thousands of jobs. U.S. Department of the Interior, 2006 
National Survey of Fish, Hunting, and Wildlife-Associated Recreation. 
These jobs are every bit as valuable to those who hold them as are the 
jobs the Committee perceives at risk from enforcement of the Endangered 
Species Act. In short, the protection of biodiversity appears well 
worth the effort. Just as a nation should not squander its fiscal 
resources, it should not squander its natural ones. The Endangered 
Species Act is central to our national effort to conserve our 
irreplaceable natural resources.

B. The Present Rate of the Loss of Species Is Alarming
    The current rate of species' extinction worldwide is estimated at 
1,000 times the natural rate of extinction and is increasing. The 
impact of seven billion humans on species diversity is comparable to 
that of the asteroid that wiped out most life on Earth 65 million years 
ago. Like geologists do today, future intelligent beings, should there 
be any, will be able to mark the current human-caused extinction epoch 
by observing the number and diversity of fossils preserved in future 
rock layers. Unless these trends are reversed, by the year 2020 up to 
20 percent of all extant species will no longer exist. Wilson, Edward 
O., The Diversity of Life at 346. According to the International Union 
for the Conservation of Nature, one in every four mammals is facing a 
high risk of extinction in the near future. Almost half of all 
tortoises and freshwater turtles are threatened. More than one-fifth of 
the world's birds face extinction according to Birdlife International. 
One third of the world's amphibians are also vanishing. Stokstad, E., 
Global Survey Documents Puzzling Decline of Amphibians, Science 306: 
391 (2004). At least two out of every five species on earth will go 
extinct due to human-caused climate change if greenhouse gas emissions 
are not promptly curtailed. Flannery, Tim, The Weather Makers, Atlantic 
Monthly Press (2005) at 183.
    Moreover, there is a trickle-down effect from species' extinction 
as the loss of one species leads to the loss of other dependent 
species. For example, researchers recently calculated that the 
extinction of nearly 6,300 plants listed as threatened or endangered by 
the International Union for the Conservation of Nature would also 
result in the loss of nearly 4,700 species of beetles and 136 types of 
butterflies. Lian Pin Koh, et al., Species Coextinctions and the 
Biodiversity Crisis, Science 305 (2004) at 1632-34.
    In sum, there should be no legitimate debate over whether or not 
our planet's biodiversity is rapidly diminishing. There should also be 
little debate that this loss is attributable to human activities and 
dramatic human population increases:
        Human demographic success has brought the world to this crisis 
        of biodiversity. Human beings--mammals of the 50-kilogram 
        weight class and members of a group, the primates, otherwise 
        noted for scarcity--have become a hundred times more numerous 
        than any other land animal of comparable size in the history of 
        life. By every conceivable measure, humanity is ecologically 
        abnormal. Our species appropriates between 20 and 40 percent of 
        the solar energy captured in organic material by land plants. 
        There is no way that we can draw upon the resources of the 
        planet to such a degree without drastically reducing the state 
        of most other species.
    Wilson, Edward O., The Diversity of Life at 272. Over ninety-nine 
percent of scientists agree that a serious, world-wide loss of 
biodiversity is likely, very likely, or virtually certain. Rudd, Murray 
A., Scientists' Opinions on the Global Status and Management of 
Biological Diversity, Conservation Biology 25(6) (2011) at 1165-1175. 
There is also strong scientific consensus that humans are responsible 
for this extinction crisis. Id. Indeed, last year the United Nations 
marked the first ever International Year of Biodiversity to call 
attention and spur action to address this problem. The United States 
Endangered Species Act serves as a model for many other nations and 
exhibits our national commitment to the international effort to save 
the diversity of life on Earth.

II. The Endangered Species Act Enjoys Widespread Public Support
    As a remedy to stem the tide of extinction and protect species for 
the use and enjoyment of future generations the Endangered Species Act 
enjoys widespread public support. Passed almost unanimously by Congress 
and signed into law by President Nixon in 1973, the Endangered Species 
Act has consistently remained popular. In 1999, university researchers 
concluded that 84 percent of the American public supported the current 
Endangered Species Act, or an even stronger version of the law. Czech, 
Brian and Krausman, Paul R. Public Opinion of Endangered Species 
Conservation and Policy, Society and Natural Resources 12(5) (1999) at 
469-79. A poll commissioned by the Endangered Species Coalition and 
conducted by Harris Interactive between February 16--20 of this year, 
found that despite the ensuing decade of attacks on the Act since 1999 
and the controversies over its implementation and enforcement, an 
identical 84 percent of Americans adjusted for age, sex, race/
ethnicity, education, region of the country, number of adults in the 
household, and number of phone lines in the household, supported or 
strongly supported the Endangered Species Act. While support was 
strongest among Democrats (93%), the majority of Republicans (74%) also 
supported or strongly supported the Act. The majority of Americans of 
both political parties (64%) also believe that the Act is a safety net 
providing balanced solutions to save wildlife and plants at risk of 
extinction. In short, the protection of endangered species is a broadly 
supported American value. Extinction is not.

III. The Endangered Species Act Is Effective
    Not unlike the biblical Noah, checking off the animals boarding his 
Ark, two by two, the Endangered Species Act operates based on a list. 
Species on the list receive the Act's protections while unlisted 
species do not. The leading cause of species imperilment in the U.S. is 
habitat destruction. Wilcove, David S. et al., Quantifying Threats to 
Imperiled Species in the United States, Bioscience 48(8) (1998) at 607-
15. The protective provisions of the Endangered Species Act, 
particularly those that protect a listed species' designated critical 
habitat, are effective at stemming habitat destruction and recovering 
species. Listed species with a designated critical habitat are twice as 
likely to be recovering as those without designated critical habitat. 
Suckling, Kieran F. and Taylor, Martin, Critical Habitat and Recovery, 
in The Endangered Species Act at Thirty (2006) at 86.
    Additionally, research shows that as of 2006 the Endangered Species 
Act had prevented the extinction of at least 227 species. Scott, 
Michael J., et al. By the Numbers, in The Endangered Species Act at 
Thirty, Island Press (2006) Vol. 1 at 16-35. Accordingly to the U.S. 
Fish and Wildlife Service, only nine of the approximately 1,445 
domestic species ever added to the Endangered Species Act list have 
been declared extinct. Seven of these were mostly likely extinct before 
they received the Act's protection. Thus, the Act has only failed two 
species: a success rate in preventing extinction of over 99 percent. 
Conversely, protection under the Act has successfully recovered at 
least 22 species. Accordingly, the Endangered Species Act is succeeding 
in recovering species at least twice as often as it is has failed. 
Indeed, if the seven species that were likely extinct before they were 
listed under the Act are discounted, the Endangered Species Act is 
succeeding in recovering species at a rate more than 10 times that at 
which it fails.

IV. Enforcement through Litigation has Increased the Effectiveness of 
        the Endangered Species Act
    While the Endangered Species Act has been over 99 percent 
successful in preventing extinction, it is still criticized by some 
because 1,397 species remain on the domestic protected species list, 
while only 22 have been finally recovered. However, this criticism is 
misplaced. The task of recovering species from the edge of extinction 
is difficult. The Endangered Species Act has been on the job for 38 
years. However, many of the species currently protected by the Act, 
have not been listed nearly so long, but were added more recently. 
Moreover, pursuant to the requirements of the Act, the U.S. Fish and 
Wildlife Service has estimated the costs of, and planned for, the 
recovery of many endangered species on long time lines often exceeding 
50 years. Government Accountability Office, Endangered Species: Time 
and Costs Required to Recover Species are Largely Unknown (2006).
    Perhaps more importantly for purposes of the Committee's inquiry 
into conflicts between the Endangered Species Act and economic 
activity, one must recognize that the timeline for species recovery is 
dependent on the resources devoted to recovery--and the strength of the 
protective regulations implemented to achieve recovery. Thus, 
increasing the rate of recovery will require additional resources and 
more, not less, protective regulations--the type of regulations that 
have the potential to affect economic activity. Any criticism of the 
rate of species recovery must recognize that this rate can only be 
increased by greater, not reduced, effort and thus calls for more 
effective enforcement of, or strengthening of, the Endangered Species 
Act.
    Additionally, the rate of species recovery is also dependent on how 
close to the abyss of extinction species are when they are first 
offered the protections of the Act. For example, seven species were 
likely already extinct before they were first listed. Many others have 
been listed only when their populations have fallen to incredibly low 
levels. The size of a vertebrate population at the time of listing is 
often so low that only the establishment of captive breeding 
populations will avoid extinction. Wilcove, David S., et al., What 
Exactly is an Endangered Species? An analysis of the U.S. Endangered 
Species List: 1985-1991, Conservation Biology 7(1) (1993) at 87-93. 
This occurred in the well-known cases of the Mexican wolf, the black-
footed ferret, and the California condor whose protection came only 
after each had dwindled to fewer to two dozen individuals.
    The majority of the cases filed by WildEarth Guardians pursuant to 
the citizen-suit provision of the Endangered Species Act have involved 
efforts to compel the federal agencies responsible for administering 
the Act to meet the deadlines prescribed by Congress for making listing 
decisions. This effort to protect all deserving species under the Act 
sooner rather than later increases their chances for recovery and also 
serves to shorten the timeline needed to recover a species. 
Importantly, for this Committee's inquiry into perceived conflicts 
between the Endangered Species Act and economic activity, adding 
species to the list before they are at the verge of extinction allows 
greater flexibility and accommodation of activities that might conflict 
with recovery through the Act's regulatory mechanisms.
    Having an accurate and complete list of endangered species 
protected by the Act benefits those trying to save species, by allowing 
them to begin protecting and recovering deserving species sooner. It 
also benefits those engaged in planning economic activities that may be 
affected by a species listing by allowing them to modify their plans or 
activities to accommodate the needs of endangered species before 
devoting significant resources to those plans. An incomplete or 
inaccurate list of endangered species benefits no one. Thus, litigation 
directed at listing species that need the protection of the Endangered 
Species Act--to make the list complete and accurate--is beneficial to 
all parties concerned.
    In short, the debate should not focus on diagnosis (listing), but 
on the course of treatment (protection and recovery) we apply to listed 
species. Diagnosis is simply information upon which future decisions 
can be made. We understand this when it comes to visiting the doctor's 
office. Accurate and timely diagnosis of disease is critical. Only once 
the diagnosis is made do we begin to discuss our treatment options with 
our doctor, with choices spanning the spectrum from intensive 
intervention to doing nothing. Our understanding of the Endangered 
Species Act, the law under which we provide emergency room care to 
species in need, should be no different. Accordingly, the Act provides 
that listing decisions must be based solely on the best available 
science and not account for economic impacts. The perceived conflict 
between economic activities and protecting endangered species should 
not influence listing decisions, but may be appropriately debated when 
we decide how to recover listed species and what level of economic 
dislocation we will tolerate in those efforts.
    However, because this Committee appears concerned that litigation 
conducted by WildEarth Guardians and others is somehow interfering with 
species recovery, it is important to note that both Guardians and the 
Center for Biological Diversity have recently entered into separate, 
but overlapping, settlement agreements with the U.S. Fish and Wildlife 
Service. In Re Endangered Species Act Section 4 Deadline Litigation, 
Misc. Action No. 10-377 (EGS) (U.S. District Court for the District of 
Columbia). For those concerned that the process of listing species 
under the Act is overly litigious, these settlement agreements are good 
news. In its separate settlement, Guardians has agreed not to file 
litigation enforcing the Act's listing deadlines for the next five 
years. In return, the U.S. Fish and Wildlife Service has agreed to make 
final listing decisions for all the species the Agency had previously 
concluded warranted the protection of the Act, but for which the 
Service had not made final listing decisions in its 2010 Candidate 
Notice of Review. Thus, the Service will be making final decisions for 
the species which it has preliminarily concluded are most deserving of 
the Act's protections. Neither agreement requires the Service to list 
any particular species, but only to complete its analysis and make a 
final decision. Most of the species that will receive final listing 
decisions under these settlement agreements have been waiting for more 
than two decades for action. The agreements promise an end to this 
waiting and will result in a more accurate and complete endangered 
species list upon which future decisions can be made. Recovery efforts 
for the species the Service ultimately concludes deserve listing will 
begin sooner, and with this head start, recovery efforts should also be 
both more efficient and less disruptive to economic activity than if 
these species are allowed to continue declining without legal 
protection while waiting for action.
    These settlement agreements would not have come to pass without 
litigation to enforce the Act's deadlines. In that sense, the 
litigation that led to the agreements benefitted both the enforcement 
of the Endangered Species Act and the quicker recovery of species which 
should in turn reduce the economic impacts of species protection. Any 
contrary conclusion is unwarranted.

V. There are Actions that could Increase the Rate of Species Recovery

A. Listing Decisions should be made Promptly and in Keeping with the 
        Endangered Species Act's Deadlines
    Finally, in response to this Committee's apparent concern that 
species are not recovering rapidly or efficiently, there are actions 
Congress could take to increase the rate of recovery. As discussed 
above, the difficulty of recovery is proportional to the degree of 
imperilment a species faces when it is first added to the endangered 
species list. The Endangered Species Act provides a two to two-and-one-
half year timeline for making a decision as to whether or not to add a 
species to the endangered species list once it has been petitioned for 
listing. The Act also provides that the responsible agencies may add a 
species to the list on their own initiative. In practice, Congress has 
failed to fund the U.S. Fish and Wildlife Service listing program at 
levels sufficient for it to timely address either the number of citizen 
petitions it receives or the number of species sliding towards 
extinction. Nor has the Service requested adequate funding for these 
tasks. Thus, the Service has been in chronic violation of the listing 
deadlines that Congress provided in the Act to compel agency action. 
These delays have caused WildEarth Guardians and others to litigate to 
enforce Congressional mandates and spur prompter action. Species 
continue to decline while the agency delays addressing their status and 
deciding whether or not they deserve the Act's protections, thereby 
rendering recovery efforts more difficult. Accordingly, if the goal of 
Congress is to increase the rate and potential success of recovery 
efforts, the first step is to fund the listing program at levels that 
will allow the U.S. Fish and Wildlife Service to avoid breaking the 
law. Identification of the problem (prompt listing action) is the first 
step to its resolution (quicker recovery).
    Funding the Service at a rate sufficient for it to comply with the 
settlement agreements it recently entered with WildEarth Guardians and 
the Center for Biological Diversity will not only increase the recovery 
prospect for the species that receive final listing decisions by 
forcing action more promptly, but will avoid a return to litigation as 
the only means available to Guardians, the Center, and others to 
enforce the Act's deadlines.

B. Critical Habitat Designation should be Required for All Listed 
        Species
    As a related matter, Congress amended the Endangered Species Act in 
1978 to require the Fish and Wildlife Service to designate critical 
habitat for a species, to the extent determinable and prudent, at the 
time of listing. As discussed above, listed species with a designated, 
and thus protected, critical habitat are twice as likely to be 
recovering as those without designated critical habitat. Suckling, 
Kieran F. and Taylor, Martin, Critical Habitat and Recovery, in The 
Endangered Species Act at Thirty (2006) at 86. Accordingly, to increase 
the rate of recovery, Congress should also fund the Service at levels 
sufficient to allow the Agency to designate critical habitat for 
species at the time they are first listed. As an additional benefit, 
the prompt designation of critical habitat supports better planning by 
those entities whose economic activities might need to be modified to 
protect listed species. Additionally, because Congress applied the 
requirement to designate critical habitat only to species designated 
after 1978, if Congress desires to increase the rate of species' 
recovery it should remove the exemption for species listed prior to 
1978 and require the designation of critical habitat, to the extent 
prudent and determinable, for all listed species, including those that 
have been on the list the longest.

C. Deadlines for the Preparation of Recovery Plans should be 
        Established, Recovery Plans should be Made Enforceable, and 
        Recovery Plans should be Fully Funded.
    Lastly, and again if the concern is with increasing the rate of 
species' recovery, Congress should focus on Section 4(f) of the 
Endangered Species Act, 16 U.S.C. Sec. 1533(f), the provision that 
requires the preparation of recovery plans for listed species. Unlike 
the other provisions of Section 4, the recovery planning provision 
contains no deadlines. Thus, this most important task of planning for 
species recovery may linger incomplete for many years. The responsible 
agencies have developed a goal of preparing a recovery plan for each 
listed species within two and one-half years of listing. However, in 
practice this timeline is not always followed. For example, the 
National Marine Fisheries Service failed to prepare recovery plans for 
the Sperm, Fin, and Sei Whales for more than 30 years until compelled 
to do so by a lawsuit filed by WildEarth Guardians. Accordingly, if 
Congress desires recovery to occur more rapidly, it should establish 
deadlines requiring prompt recovery planning.
    Furthermore, recovery plans are generally not enforceable by 
citizens. Thus, the actions the responsible agencies determine are 
necessary to recover species are undertaken solely at the pleasure of 
the agencies. Again, the agencies do not always implement the recovery 
plans they have prepared or delay their implementation. Accordingly, to 
compel agencies to carry out the tasks they have determined are 
necessary to recover listed species, Congress should consider making 
the development and implementation of recovery plans more enforceable 
by citizens. An unenforceable or unimplemented plan that simply gathers 
dust in an agency's file cabinet is of little utility. Thus, 
conversely, the problem this Committee perceives with delayed recovery 
efforts is not caused by too much litigation, but by the inability of 
citizens to force federal agencies to do what they said they should and 
would do--through litigation forcing the implementation of recovery 
plans.
    Section 4(f) does require the responsible agencies to prepare 
timelines and estimate the costs of recovery actions. The success of 
these plans and the adherence to their timelines for action thus hinge 
on the amount of funding available. Accordingly, if this Committee 
desires to increase the rate of species recovery, Congress can drive 
that effort through funding, and it should take steps to insure both 
that the agencies request sufficient funding to meet their recovery 
plans and that Congress provides it.

CONCLUSION
    The Endangered Species Act is this nation's commitment that the 
tragic and irreparable extinctions of species that occurred prior to 
the Act's passage will not be repeated. In passing the Act, Congress 
not only recognized that sharing this world with the vast variety of 
species on it increases human joy and well-being, but is, in the end, 
essential to human life. Existence without our fellow companions on 
this planet would not only be lonely, it would be impossible. The 
protection of fragile and unique species is not without cost. 
Frequently, these species have been driven to the edge of the abyss by 
untempered human expansion and monopolization of resources. Allowing 
for their survival requires a measure of restraint on our part. 
However, the perception that saving species from extinction costs jobs 
is shortsighted. Saving species is not only of substantial economic 
benefit, it allows for sustainable economic development by preserving 
resources so that they may be enjoyed and used by future generations. 
Our children will not forgive us if they are able only to learn of the 
wolf's howl, the prairie chicken's dance, or the bear's roar in 
museums. More importantly, our descendents will not survive, or will 
survive only in a more hostile and unforgiving world, without all the 
little things, the bugs and weeds, that drive our ecosystems and allow 
the larger forms of life to thrive. Humans cannot pollinate their crops 
without the assistance of beetles, bees, butterflies, and bats. And 
humans will suffer if the mysterious storehouse of adaptations and 
unique properties found in plants and animals are thrown away without 
understanding. Driving species to extinction is not unlike burning a 
library. Driving species to extinction before we even begin to 
understand them is like burning the library without once reading the 
books.
    Fortunately, extinction is not an American value. Since its 
passage, and despite numerous controversies, the American people have 
consistently and overwhelming supported the Endangered Species Act. 
This support cuts across all lines that might otherwise divide us. The 
Act is working, and will work even better with increased enforcement 
and renewed effort. Litigation, the focus of this hearing, is nothing 
more than a means to enforce the Act. More importantly, litigation has 
shown success in ensuring the Act is implemented as Congress intended. 
Though litigation is adversarial, such disagreements in a civil society 
are necessary to promote change, force action, and reach resolution. 
Congress recognized as much when it provided mechanisms for, and 
requested citizens to help, the government implement the Act and meet 
the obligations it placed on itself. It is inappropriate to denigrate 
successful litigation, brought by citizens, that has forced the 
government and others to follow the law. To do so, is to attack the law 
itself. If Congress does not want a law enforced it should not have 
such a law. WildEarth Guardians does not believe that this nation wants 
to abandon the Endangered Species Act, and it is proud of its efforts 
to enforce our bedrock national commitment to never again drive a 
species to extinction. Rather, Guardians believes this nation is 
committed to insuring our rich flora and fauna, and the ecosystems on 
which they depend, survive and flourish for future generations.
                                 ______
                                 
    The Chairman. Thank you very much, Mr. Tutchton.
    Next we will recognize Mr. John Leshy, Professor at U.C. 
Hastings College of the Law in San Francisco. Mr. Leshy, you 
are recognized.

 STATEMENT OF JOHN LESHY, PROFESSOR, U.C. HASTINGS COLLEGE OF 
               THE LAW, SAN FRANCISCO, CALIFORNIA

    Mr. Leshy. Mr. Chairman, Members of the Committee, thank 
you very much for the opportunity to appear here today. I am 
appearing as a private citizen representing nobody, expressing 
my own views.
    I had extensive experience in the government, about 12 
years working on endangered species issues, and I have also 
taught in this area for quite a long time, so I am speaking 
mostly from my government experience.
    The purpose of the Endangered Species Act is of course to 
protect the diversity of life on earth in the tradition of Noah 
and the ark, and as Mr. Tutchton pointed out, it has a moral 
dimension, but it also really has a very practical dimension. 
It is very much in our self-interest narrowly defined. 
Economists run the numbers on the value of so-called ecosystem 
services, the things that nature provides us and it runs into 
the trillions of dollars.
    The title of today's hearing I respectfully submit paints a 
very misleading picture of the Endangered Species Act, implying 
that litigation is a dominant part of how the Act is 
implemented, that it is costly to the economy and that it and 
the Act itself are ineffective at protecting species. Each of 
these implications is based on my experience in working with 
the Act erroneous.
    First litigation, the media and the public love a good 
fight. A number of high-profile court cases gather a lot of 
attention and fuel this impression that the Act is all about 
litigation, but in my experience the truth is otherwise. Across 
the Nation every day in countless settings the Endangered 
Species Act is being successfully implemented with only rare 
resort to the courts. It puts endangered species concerns 
directly on the table when decisions about projects are made, 
but in the vast majority of situations those concerns are 
accommodated with modest adjustments, little disruption and 
really almost no litigation.
    In many thousands of formal and informal consultations, 
which is the central procedural requirement of the Act that 
take place every year, almost all either allow the project to 
proceed with little change or result in modest changes, and 
many of these changes make the projects better from an economic 
as well as an environmental perspective. Only a relative 
handful are challenged in court.
    The Endangered Species Act has been there for 40 years. 
Most project planners now take it into account from the very 
beginning and that is a very good thing. In almost all the 
court cases the government is the principal defendant, and the 
opportunity, as Mr. Tutchton pointed out, it is an equal 
opportunity for all sides, the people who think the Act is 
overregulating can challenge in court, the people who think the 
Act is underregulating can challenge the government in court. 
Most of the time the government wins and I believe that is as 
it should be because I think the Executive Branch does a 
reasonably conscientious job of implementing the Act, but not 
always, and that too is as it should be.
    We live in an imperfect world where for a variety of 
reasons governments sometimes make mistakes, so the 
availability of judicial review is a good thing, giving all 
sides the opportunity to have a neutral decisionmaker, an 
independent judge, decide on the government's compliance.
    Now let me address the contention that the Endangered 
Species Act costs jobs and reeks economic havoc. Here too a 
number of high profile court injunctions have tended to grab 
the attention and skew public perception, but headlines should 
not obscure the truth, which is that the Endangered Species Act 
has many times protected economic health and saved jobs. 
Indeed, from a larger perspective and longer view, that is more 
often the result than not.
    A concrete example I have given in my written statement at 
some length is the Edwards Aquifer in Texas. It is a large 
groundwater basin in the southcentral part of the state. It is 
a vital regional water supply. It supports thousands, hundreds 
of thousands of jobs. San Antonio, the seventh largest nation's 
city, is wholly dependent on the Edwards Aquifer. Texas, 
frankly, was doing nothing to manage or safeguard the water 
supply of the aquifer. It did just the opposite actually. It 
treated it like a big soda, so anybody can suck the water out 
in unlimited quantities.
    And then the Endangered Species Act came along because by a 
quirk of fate the aquifer fed some springs where some listed 
endangered species were found, and after litigation and much 
negotiation, Texas for the first time began to manage the 
Edwards Aquifer to provide for the long term and to sustain the 
jobs and the regional economy and the millions of people who 
depend upon it. This was a real success story in the Endangered 
Species Act protecting the economic future of a large region of 
Texas. It is not the only example.
    Finally, in my remaining time let me just mention two quick 
things. I agree with Mr. Suckling that the recovery of species 
has to be measured over the long term because the Act, and this 
is kind of an unfortunate way the Act is administered, but it 
has this sort of emergency room atmosphere. Species don't get 
listed until they are really in very dire peril, and it 
obviously takes a long time, as Mr. Suckling's slides show, for 
a species to work out of that.
    I think the administration of this Endangered Species Act 
has been successful overall. It is also getting better and I 
think as the Committee moves forward there are many success 
stories that it can focus on to help improve the Act and its 
administration. Thank you very much for the opportunity to 
testify.
    [The prepared statement of Mr. Leshy follows:]

Statement of Professor John D. Leshy, Harry D. Sunderland Distinguished 
              Professor, U.C. Hastings College of the Law

    I appreciate your invitation to testify today. I am a law professor 
at the University of California, Hastings College of the Law (on leave 
this semester as a visiting professor at Harvard Law School). I appear 
today as a private citizen, expressing my own views.
    I have dealt with the Endangered Species Act in a variety of 
settings in and out of government practically since it was enacted. 
During almost a dozen years of government service, I helped administer 
the statute and advised agencies regarding compliance. Many times I 
helped defend government agencies who were being sued for violating the 
Act. I have also taught the Endangered Species Act to many law students 
in dozens of courses over the years, and have written about it in two 
law casebooks I co-author (dealing with water law and with public lands 
& resources law) as well as in articles and book chapters.
    I believe, based on this extensive experience, I am well-qualified 
to comment on how the Act has worked in practice, and the role 
litigation has played in its administration.
    The Endangered Species Act has a clear and overriding purpose--to 
protect the diversity of life on earth, in the tradition of Noah and 
the Ark. Its objective is important. Famed naturalist E.O. Wilson has 
said that to fail to take strong action to stem the loss of species 
diversity would be the ``folly'' our descendants are ``least likely to 
forgive.''
    Nature's loss is our own. Preserving as much of creation as 
possible has a moral dimension, but it is also very much in our self-
interest, more narrowly defined. Economists put the value of 
``ecosystem services''--the many ways that the natural world and its 
biodiversity support and protect the quality of human life on earth, 
from providing medicines and foodstuffs to pollinating crops to 
cleansing water--in the trillions of dollars.
    The title of today's hearing, I respectfully submit, paints a very 
misleading picture about the Endangered Species Act. It implies that 
litigation is a dominant part of the Act's implementation, that it is 
costly to the economy, and that it, and the Act itself, are ineffective 
at protecting species. Each of these implications is, based on my 
experience working with the Act, erroneous.
    The media and the public love a good fight. A small number of high-
profile court cases garner a lot of attention and fuel the impression 
that the Act is all about litigation.
    In my experience, the truth is otherwise. Across the nation, in 
countless settings, the Endangered Species Act is being successfully 
implemented with only rare resort to the courts. While the Act puts 
endangered species concerns squarely on the table when decisions about 
projects that could affect them are made, in the vast majority of 
situations, those concerns are accommodated with modest adjustments, 
little disruption, and no litigation. Of the many thousands of formal 
and informal ``consultations''--the Act's central procedural 
requirement--that take place every year, almost all either allow the 
project to proceed with little change (because it has been planned with 
the Act in view), or result in modest changes. Often these changes make 
projects better, from an economic as well as environmental perspective, 
Only a relative handful are ever challenged in court. As this suggests, 
with nearly forty years of operation, the Endangered Species Act has 
become embedded in project planning and resource management, and that 
is a good thing.
    In almost all of the court cases brought under the Endangered 
Species Act, the government is the principal defendant, charged with 
inadequately complying with the Act. The opportunity to challenge the 
government is as available to those who think the government is over-
regulating, as it is to those who think the government is under-
regulating. Litigation, in other words, gives all sides equal 
opportunity to persuade a neutral decision-maker--a court--that the 
government is not doing its job.
    In my experience, about as many Endangered Species Act cases are 
brought by those claiming over-regulation as by those claiming under-
regulation. Furthermore, my fairly regular canvass of court opinions 
persuades me that those claiming over-regulation win just about as 
often as those claiming under-regulation.
    Most of the time, though, the government wins. And that is, I 
believe, as it should be. In my experience, the executive branch 
usually does a reasonably conscientious job implementing the Act, and 
deserves and usually receives some deference from the courts.
    But not always. And that, too, is as it should be. We live in an 
imperfect world where, for a variety of reasons, government sometimes 
makes mistakes. So the availability of judicial review is a good thing, 
giving all sides--those who want more regulation and those who want 
less--a tool to make sure the executive branch is faithfully 
implementing the laws that Congress enacts. The American people have 
long been united on the value of judicial review, for litigation 
challenging government policy and performance has been a standard 
feature of American life almost since the beginning of the Republic. 
Our founders, by creating an independent judicial branch, understood 
the need to provide a check to hold other branches of government 
accountable.
    Next, I will address the contention that Endangered Species Act 
regulation costs many jobs and wreaks economic havoc. Here too, a 
handful of high-profile court injunctions have tended to grab attention 
and skew public perception. But headlines should not obscure the truth, 
which is that many times the Endangered Species Act has protected 
economic health and saved jobs. Indeed, from a larger perspective and 
longer view, that is more often the result than not.
    Here is a concrete example. The Edwards Aquifer in Texas, a large 
groundwater basin in the south-central part of the state, is a vital 
regional water supply for farms, industries and municipalities. One of 
the latter is San Antonio, the nation's seventh largest city, and one 
of the largest cities in the world solely dependent on groundwater.
    Being so important to the health, welfare and economic livelihood 
of such a large population, one might expect that Texas would have been 
carefully managing the Edwards. Not so. Until the Endangered Species 
Act was brought to bear, Texas did just the opposite. It treated the 
Edwards Aquifer like a big soda, in which anyone could insert a straw 
and suck out unlimited quantities of water. If your straw was big 
enough, everyone else might suck air.
    Texas law purported to give landowners ``property rights'' in the 
Edwards (and other aquifers in the state), through the so-called 
``capture'' doctrine. But these so-called ``property rights'' were 
hollow--they did not give their ``owners'' any ability to prevent 
others with bigger pumps and deeper wells from taking ``their'' water. 
The ugly truth was, the Texas capture doctrine gave landowners no real 
property rights at all in the water in the aquifer. Instead, it created 
a perfectly legal race to the bottom of the aquifer. (A Texas water 
lawyer once told me how, after he explained Texas groundwater law to 
his client, a large landowner and former prominent state politician, 
the client said, ``Gee, I was all for the capture doctrine, until I 
understood it!'')
    The capture doctrine had a predictable result: The Edwards Aquifer 
was in big trouble. And so was San Antonio and the regional economy. 
Many thousands of jobs were at risk.
    Enter the Endangered Species Act. By a quirk of fate, the Edwards 
Aquifer fed some springs. Rare species of fish, found nowhere else, 
were living in waters fed by those springs. The race to the bottom of 
the aquifer threatened to dry up the springs, which would have wiped 
out the species.
    Now perhaps only a few people would have genuinely grieved if these 
obscure species were erased from the face of the earth. They had no 
known value in the commercial marketplace. Their going extinct might 
have had no more impact than the popping of a single tiny rivet on the 
wing of a giant commercial airliner.
    But the more rivets that pop, the more danger to the plane. If the 
springs and the species died, how far behind might be the institutions 
and economy and culture and jobs that also depended on the Edwards 
Aquifer?
    Joseph Wood Krutch once wrote that ``it is not a sentimental but a 
grimly literal fact that, unless we share the planet with creatures 
other than ourselves, we shall not be able to live on it for long.'' It 
was that ``grimly literal'' fact led the Congress in 1973 to enact the 
Endangered Species Act (without almost no dissenting votes), and led 
President Nixon to proudly sign it into law with the words, ``[n]othing 
is more priceless and more worthy of preservation'' than the ``rich 
array'' of life on earth.
    The U.S. Fish & Wildlife Service added the obscure species 
dependent on the Edwards Aquifer to the endangered species list, and 
the machinery of the Endangered Species Act was brought to bear on the 
problem.
    After years of litigation and negotiation, the state of Texas 
created a management authority and gave it marching orders to safeguard 
the aquifer for the long term. This put the region's water supply, and 
the jobs and economic activity dependent on it, on a much sounder 
footing for the long term.
    Was the road to a resolution at Edwards bumpy? Yes. Was there 
headline-grabbing litigation and controversy? Yes. Are some people 
unhappy about the management scheme the legislature devised? Yes. Is 
the problem completely solved? No.
    But there is no denying that the economically vital Edwards Aquifer 
is being much better taken care of, and is much more likely to sustain 
the regional economy over the longer term, than it was before the 
Endangered Species Act--and litigation to enforce it--entered the 
picture. This is, to my mind, a clear example where the Endangered 
Species Act protected jobs, economic livelihood and human health of a 
large region. It is scarcely the only example.
    The Endangered Species Act has also been successful at its most 
immediate task, saving species from extinction and recovering them. One 
of the problematic aspects of how the Act is administered is that 
species tend not to be listed and brought under the Act's protective 
umbrella until they are in dire peril of blinking out. This gives the 
Act a kind of desperate, emergency-room focus, and means that by the 
time a species is listed, it may be so far gone that recovering it to a 
healthy population may take many years. For this reason, the Act's 
success cannot be measured by recovery in the short term.
    Happily, over the last couple of decades, steps have been taken 
administratively to allow the needs of species declining toward listing 
to be met before they get to the emergency room. In fact, a substantial 
consensus has emerged among states, major players in the regulated 
community, federal agencies and others to support such efforts, through 
such devices as habitat conservation plans that deal with unlisted 
species that are likely candidates for future listing if nothing is 
done, as well as listed species. Focusing on ways to promote these 
positive developments is, in my judgment, a far more productive 
exercise for helping species, and those at risk of being regulated by 
the Act, than focusing on the role of litigation in the Act's 
administration.
    Finally, another very useful step to take in the short run is to 
provide the federal agencies more funding to administer the Act. 
Chronic under-funding has helped engender the kind of emergency-room-
triage atmosphere that makes things more, not less, difficult for those 
who are regulated by the Act. Relatively small amounts of money, in the 
tens of millions of dollars, could make the Act work measurably better 
for them, and everybody else.
    Thank you for the opportunity to testify. I am of course happy to 
answer questions.
                                 ______
                                 
    The Chairman. Thank you very much for your testimony.
    And last we will recognize Mr. Brandon Middleton, Attorney 
for the Pacific Legal Foundation in Sacramento. Mr. Middleton.

           STATEMENT OF BRANDON MIDDLETON, ATTORNEY, 
        PACIFIC LEGAL FOUNDATION, SACRAMENTO, CALIFORNIA

    Mr. Middleton. Thank you, Mr. Chairman and Members of the 
Committee. As an attorney with Pacific Legal Foundation, a 
nonprofit organization dedicated to the protection of private 
property rights and individual rights, I thank you for this 
opportunity to express my views on ESA litigation.
    Perhaps the biggest reason why the ESA provides such a 
strong incentive for environmental groups to stop economic 
progress is because the ESA literally places the importance of 
endangered species above human well-being. I have had the 
pleasure of representing three California farmers in their 
fight to stop ESA from being used to take away their irrigation 
water. A misguided effort to protect the Delta smelt has 
resulted in my clients fowling of their fields and has 
prevented them from hiring more workers and helping to 
alleviate rampant unemployment.
    Now, although progress has been made in their fight to stop 
the Delta smelt regulatory drought, my clients' long-term water 
supply prospects remain grim, and this is because the ESA 
places the needs of the Delta smelt before people. This 
backwards prioritization is a result of the infamous 1978 
Supreme Court decision TVA v. Hill, and in TVA the Supreme 
Court enjoined a Federal dam project from going forward because 
the operation of the dam would lead to the eradication of the 
nearly extinct snail darter fish species. But in terms of ESA 
litigation, TVA's devastating impact is found not in the result 
it reached but in the precedent it set.
    By suggesting a legislative intent that is found nowhere in 
the text of the statute, the Supreme Court provided a gift for 
environmentalists that has been exploited for three decades. 
According to the Supreme Court, Congress's intent in enacting 
the Endangered Species Act was to ``halt and reverse the trend 
toward species extinction whatever the cost.'' The Supreme 
Court also suggested that Congress made it clear that the 
balance has been struck in favor of affording endangered 
species the highest of priorities.
    TVA's draconian language provides ammunition for 
environmental groups to use the ESA to deprive property owners 
and resource users of their rights while at the same time 
preventing courts from considering the hardship resulting from 
such an unbalanced approach. The reality is that there is 
nothing in the Endangered Species Act that prevents courts from 
placing human beings at least at the same level as endangered 
species. But the Supreme Court's decision in TVA allows 
environmental groups to enjoin even so-called green projects 
without concern for the costs of ordering a business to cease 
all operations.
    In the Delta smelt litigation, Judge Wanger offered a more 
balanced approach to the ESA. He ruled that in certain 
circumstances it is appropriate for courts to balance human 
hardship against needs of protected species. While Judge Wanger 
allowed water users to at least have an equal voice in the 
Delta smelt proceedings, the Natural Resources Defense Council 
and Earth Justice have appealed and they have claimed that 
Judge Wanger's view of TVA v. Hill is wrong and that the 
District Court improperly balanced the water supply impacts of 
ESA regulation against Delta smelt habitat concerns.
    This protest of even the slightest limitation of TVA 
demonstrates how environmental groups depend on TVA's troubling 
precedent in cases where they seek to forestall economic 
development and human progress.
    If Congress were to determine that the Supreme Court's 
interpretation of priorities under the Endangered Species Act 
is actually incorrect and that the human species is in fact 
entitled to at least as much priority as our animal species, 
then ESA litigation will shift to a more balanced approach that 
at least gives property owners and resource users an equal 
voice in the courtroom.
    Abandoning the ``whatever the cost'' approach would deprive 
the environmental community of one of the greatest litigation 
weapons. Moreover, allowing for a full balancing of harms and a 
consideration of the public interest would not preclude 
environmental groups from obtaining an injunction in all ESA 
cases but would instead enable a more balanced approach that 
better comports with traditional notions of equity and 
fairness.
    I wish to thank the Committee for this opportunity to 
provide this testimony and hope it will assist the Committee as 
it deliberates improvements to the Act.
    [The prepared statement of Mr. Middleton follows:]

          Statement of Brandon M. Middleton, Staff Attorney, 
Pacific Legal Foundation, Environmental Section, Sacramento, California

    Mr. Chairman, members of the House Committee on Natural Resources, 
thank you for this opportunity to express my views on Endangered 
Species Act litigation.
    The flaws behind the Endangered Species Act are numerous and well-
known. Rather than provide incentives for conservation and 
environmental stewardship, the Endangered Species Act punishes those 
whose property contains land that might be used as habitat by 
endangered and threatened species. The statute's success rate is 
dismal, at best-few species that are classified as endangered or 
threatened ever return to recovered, healthy populations. Further, 
expansive and inflexible Endangered Species Act regulation by federal 
agencies often frustrates innovative local and state conservation 
efforts, with the result being greater conflict and less compromise.
    These structural defects raise serious concerns over the Endangered 
Species Act's efficacy as a conservation statute and demonstrate that 
the statute provides little meaningful benefit to endangered and 
threatened species.
    However, the statute's structural defects that victimize Americans 
in environmental litigation are particularly troubling. The Endangered 
Species Act elevates species protection above human well-being, 
benefitting extreme environmentalists and encouraging them to seek low-
cost court victories at the expense of individual Americans as well as 
federal agencies throughout the country.
    Specifically, environmental groups take full advantage of the 
Endangered Species Act's lenient citizen plaintiff standard. ``Any 
person'' may sue under the statute, a broad provision which has led to 
what the U.S. Fish and Wildlife Service has recognized as a litigation 
crisis.
    Once environmental groups enter the courtroom, they enjoy precedent 
that stacks the deck in their favor. It is not difficult to win an 
Endangered Species Act lawsuit, but of equal concern is that courts 
often impose draconian and unhelpful remedies that harm businesses and 
property owners. The disturbing logic here is that the Endangered 
Species Act requires such results, no matter the costs. The fact that 
the Endangered Species Act generously authorizes attorneys' fees to 
prevailing parties further encourages environmental groups to take an 
overly aggressive approach to litigation without regard for the costs 
imposed on public and private parties.
    With these structural defects in place, environmental groups would 
be foolish not to exploit them. Considering the state of the Nation's 
economy and the continuing onslaught of Endangered Species Act 
litigation, these defects certainly deserve the attention of the 
American people.

The Endangered Species Act's Lenient Standard for Becoming a Citizen 
        Plaintiff
    Numerous environmental groups thrive on bringing repeated 
Endangered Species Act cases to federal courtrooms. The Endangered 
Species Act is especially appealing to serial litigants because it 
provides that ``any person may commence a civil suit'' under the 
statute. 16 U.S.C. Sec. 1540(g)(1). Justice Scalia has criticized this 
expansive citizen suit provision as ``an authorization of remarkable 
breadth when compared with the language Congress ordinarily uses,'' 
noting that in other environmental statutes, Congress has used more 
restrictive tests for citizen plaintiffs. Bennett v. Spear, 520 U.S. 
154, 164-65 (1997). Some courts have gone so far as to rule that the 
Endangered Species Act authorizes animals themselves to sue in their 
own right. See Marbled Murrelet v. Pacific Lumber Co., 880 F. Supp. 
1343, 1346 (N.D. Cal. 1995) (``[A] protected species under the 
Endangered Species Act. . .has standing to sue `in its own right''' to 
enforce provisions of the Act.).
    To be sure, courts still demand that plaintiffs satisfy Article III 
of the Constitution by requiring a ``case or controversy'' before 
adjudicating a case. But the Endangered Species Act's otherwise minimal 
pleading requirements have resulted in what the U.S. Fish and Wildlife 
Service has described as a ``cycle of litigation'' that is ``endless, 
and is very expensive, thus diverting resources from conservation 
actions that may provide relatively more benefit to imperiled 
species.'' 71 Fed. Reg. 58,176, 58,176 (Oct. 2, 2006).
    Indeed, in its October 2006 critical habitat designation for the 
Alameda whipsnake, the Service noted that such designations generally 
are ``the subject of excessive litigation,'' and that ``[a]s a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.'' Id. The 
Service was clear that excessive Endangered Species Act litigation has 
compromised the integrity of the statute:
        We have been inundated with lawsuits for our failure to 
        designate critical habitat, and we face a growing number of 
        lawsuits challenging critical habitat determinations once they 
        are made. These lawsuits have subjected the Service to an ever-
        increasing series of court orders and court-approved settlement 
        agreements, compliance with which now consumes nearly the 
        entire listing program budget. This leaves the Service with 
        little ability to prioritize its activities to direct scarce 
        listing resources to the listing program actions with the most 
        biologically urgent species conservation needs.

        The consequence of the critical habitat litigation activity is 
        that limited listing funds are used to defend active lawsuits, 
        to respond to Notices of Intent (NOIs) to sue relative to 
        critical habitat, and to comply with the growing number of 
        adverse court orders. As a result, listing petition responses, 
        the Service's own proposals to list critically imperiled 
        species, and final listing determinations on existing proposals 
        are all significantly delayed.

        The accelerated schedules of court-ordered designations have 
        left the Service with limited ability to provide for public 
        participation or to ensure a defect-free rulemaking process 
        before making decisions on listing and critical habitat 
        proposals, due to the risks associated with noncompliance with 
        judicially imposed deadlines. This in turn fosters a second 
        round of litigation in which those who fear adverse impacts 
        from critical habitat designations challenge those 
        designations. The cycle of litigation appears endless, and is 
        very expensive, thus diverting resources from conservation 
        actions that may provide relatively more benefit to imperiled 
        species.
Id.
    More recently, the Service has asked Congress to set a limit on the 
number of species it is authorized to consider under the Endangered 
Species Act petition process. Without any such limit, the tactic for 
environmental groups appears to be ``the more, the merrier'' when it 
comes to Endangered Species Act listing petitions. After all, given the 
statute's expansive citizen suit provision, multi-species petitions 
make sense because the Service's inability to manage an overload of 
documents means only that the petitions will be settled in court, with 
the attendant attorney's fees. As Gary Frazer, the Service's assistant 
director for endangered species, has noted, ``[t]hese megapetitions are 
putting us in a difficult spot, and they're basically going to shut 
down our ability to list any candidates in the foreseeable future.'' 
Todd Woody, Wildlife at Risk Face Long Line at U.S. Agency, N.Y. Times, 
April 20, 2011, at A1. Mr. Frazer likewise recognized that if ``all our 
resources are used responding to petitions, we don't have the resources 
to put species on the endangered species list. It's not a happy 
situation.'' Id.
    The consequences of the Endangered Species Act's friendly citizen 
suit provision are thus clear, albeit counter-productive. Citizen 
plaintiffs' easy access to courts has come at the cost of meaningful 
recovery and environmental progress.

Endangered Species Act Litigation Can Bring Handsome Rewards
    The Endangered Species Act's attorney's fees provision defies 
common sense because it allows an environmental group to obtain 
attorney's fees even when a lawsuit is brought over a recovered and 
healthy species that has been recommended by the Service for delisting. 
In most litigation, ``parties are ordinarily required to bear their own 
attorney's fees-the prevailing party is not entitled to collect from 
the loser.'' Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & 
Human Res., 532 U.S. 598, 602 (2001) (citation omitted). Federal courts 
``follow a general practice of not awarding fees to a prevailing party 
absent explicit statutory authority.'' Id. (citation and quotation 
omitted).
    The Endangered Species Act, however, provides that courts ``may 
award costs of litigation (including reasonable attorney and expert 
witness fees) to any party, whenever the court determines such award is 
appropriate.'' 16 U.S.C. Sec. 1540(g). This is an extremely charitable 
provision, especially considering that environmental plaintiffs need 
not fear an award of attorney's fees to the opposing party in the event 
they do not prevail. See Ocean Conservancy, Inc. v. Nat'l Marine 
Fisheries Serv., 382 F.3d 1159, 1161 (9th Cir. 2004) (``Under the ESA, 
defendants are not entitled to costs and fees unless the plaintiff's 
litigation was frivolous.'') (citation omitted).
    The Endangered Species Act attorney's fees provision leads to 
absurd results. In Center for Biological Diversity v. Marina Point 
Development Co., a California business currently faces the prospect of 
paying the Center for Biological Diversity and another environmental 
group more than $1 million in fees and costs without proof of harm to 
any species. In that case, the anti-development plaintiffs sought and 
received an injunction to stop a commercial project based on claims the 
project would harm listed bald eagles. However, the U.S. Fish and 
Wildlife Service had already determined that bald eagles were fully 
recovered and should be delisted and that the challenged project would 
have no effect on the species. And, in fact, while the case was on 
appeal in the Ninth Circuit, the case became moot when the Service 
removed bald eagles from the list of threatened and endangered species 
altogether. But, while the Ninth Circuit recognized that the property 
owners activities did not violate the Endangered Species Act, it 
nonetheless ruled that the Center was entitled to fees under the 
statute, since the delisting of the bald eagle occurred while the 
Center's dubious district court victory was on appeal. See Center for 
Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794 (9th Cir. 
2009).
    This suit provided no benefit to any species but imposed enormous 
costs on a private company without any proof of violation. Common sense 
dictates that the property owner should not have to pay for a statutory 
violation that it did not commit, but the Endangered Species Act's 
attorney's fees provision has enabled precisely this result. Surely, 
this is not what Congress intended.

Did Congress really intend for the Endangered Species Act to be imposed 
        ``whatever the cost''?
    Thanks in part to the Endangered Species Act's litigation 
incentives discussed above, the Natural Resources Defense Council 
(NRDC), Earthjustice, and other environmental groups sued in 2005 to 
shut down critical California water projects in order to supposedly 
protect an insignificant fish called the delta smelt, a species that 
until then had generated little interest outside the extreme 
environmental community. NRDC and Earthjustice won their lawsuit, 
leading to an unprecedented water supply crisis for the San Joaquin 
Valley and Southern California. See NRDC v. Kempthorne, No. 1:05-cv-
1207-OWW-GSA, 2007 U.S. Dist. LEXIS 91968 (E.D. Cal. Dec. 14, 2007) 
(findings of fact and conclusions of law re: interim remedies).
    Yet, just a few years later, after the U.S. Fish and Wildlife 
Service capitulated to the environmental community and issued a formal 
delta smelt management regime that caused still more water supply 
uncertainty, the same federal judge who had previously ruled in favor 
of NRDC and Earthjustice ruled against them and the government, holding 
that the U.S. Fish and Wildlife Service had gone too far in its 
misguided effort to protect the delta smelt, and finding that federal 
staffers engaged in bad faith in attempting to defend delta smelt 
Endangered Species Act restrictions. See Delta Smelt Consol. Cases v. 
Salazar, 760 F. Supp. 2d 855 (E.D. Cal. 2010) (invalidating 2008 Delta 
smelt Biological Opinion), and San Luis & Delta-Mendota Water Authority 
v. Salazar, No. 1:09-cv-407-OWW, Reporter's Transcript of Proceedings 
(Sept. 16, 2011) (finding agency bad faith), available at http://
plf.typepad.com/files/9-16-11-motion-to-stay-final-1.pdf (last visited 
Dec. 1, 2011).
    But what caught legal scholars' attention was Judge Wanger's remedy 
for the U.S. Fish and Wildlife Service's Endangered Species Act 
violations. Despite the protests of NRDC and Earthjustice, Judge Wanger 
took a common sense approach and considered the harm that would result 
from allowing the illegal delta smelt regulations to go forward. In his 
August 31, 2011, decision to enjoin delta smelt-based water 
restrictions, Judge Wanger ruled that where the imposition of flawed 
ESA regulations would ``affirmatively harm human communities through 
the reduction of water supplies and by reducing water supply security 
in future years,'' it is appropriate for courts to balance this human 
hardship against the needs of protected species. As Judge Wanger wrote, 
``[i]f such harms cannot be considered in the balance in an ESA case, 
it is difficult to envision how a resource-dependent [party] would 
ever'' prevail on an injunctive relief motion in an Endangered Species 
Act case. In re Consol. Delta Smelt Cases, No. 1:09-cv-407-OWW, 2011 
U.S. Dist. LEXIS 98300, at *178 (E.D. Cal. Aug. 31, 2011).
    While Judge Wanger's decision to consider human hardship in the 
delta smelt case deserves praise, it may seem remarkable that there was 
ever a question over the court's authority to consider the human costs 
of ill-advised Endangered Species Act regulation. Unfortunately, Judge 
Wanger's decision to balance the hardships and consider the public 
interest in natural resources is the exception in Endangered Species 
Act cases, not the rule. More often than not, courts give the benefit 
of the doubt to environmental groups and the hundreds of species they 
represent, regardless of the circumstances. The deck is stacked such 
that environmental groups have an incentive to sue even when there 
would be little to no benefit to a species from litigation, and even 
though the harm and financial toll of such litigation may be great.
    One may ask, then, how this came to be-how are environmental groups 
able to argue with almost universal success that courts should consider 
the consequences their decisions have on endangered species, but at the 
same time claim that courts have no authority to consider the effects 
their decisions will have on those who actually bear the brunt of the 
Endangered Species Act, i.e., landowners and natural resource users?
    The answer stems from the Supreme Court's notorious 1978 Supreme 
Court decision, TVA v. Hill. TVA concerned whether the Tennessee Valley 
Authority could proceed with the opening and operation of the nearly 
complete Tellico Dam project, notwithstanding the fact that the dam's 
operation would either eradicate the nearly extinct snail darter 
species or at the very least destroy the fish species' critical 
habitat. Although environmental groups contended that the Endangered 
Species Act required the injunction of the Tellico Dam, the district 
court declined to do so due to the amount of public money that had 
already been spent on the project, noting that ``[a]t some point in 
time a federal project becomes so near completion and so incapable of 
modification that a court of equity should not apply a statute enacted 
long after inception of the project to produce an unreasonable 
result.'' Hill v. TVA, 419 F. Supp. 753, 760 (E.D. Tenn. 1976), rev'd, 
549 F.2d 1064 (6th Cir. 1977) (citation omitted).
    The Supreme Court, however, did not agree with the district court 
and enjoined the Tellico Dam project from going forward. Despite 
recognizing that ``[i]t may seem curious to some that the survival of a 
relatively small number of three-inch fish among all the countless 
millions of species extant would require the permanent halting of a 
virtually completed dam for which Congress has expended more than $100 
million,'' the Court concluded that ``Endangered Species Act require[d] 
precisely that result.'' TVA v. Hill, 437 U.S. 153, 172-73 (1978).
    TVA's long-term impact, however, is found not in the result it 
reached, but in the precedent it set. In his majority opinion, Chief 
Justice Burger purported to discern Congress's will in enacting the 
Endangered Species Act by suggesting a legislative intent that is found 
nowhere in the text of the statute: ``The plain intent of Congress in 
enacting this statute was to halt and reverse the trend toward species 
extinction, whatever the cost.'' Id. at 184. Similarly, ``the plain 
language of the Act, buttressed by its legislative history, shows 
clearly that Congress viewed the value of endangered species as 
`incalculable.''' Id. at 187.
    Even more starkly, Chief Justice Burger suggested that Congress 
divested federal courts of their traditional equitable discretion in 
Endangered Species Act cases. According to the Court, there was no 
``mandate from the people to strike a balance of equities on the side 
of the Tellico Dam. Congress has spoken in the plainest of words, 
making it abundantly clear that the balance has been struck in favor of 
affording endangered species the highest of priorities. . ..'' Id. at 
194.
    TVA's draconian language provided ammunition for environmental 
groups to use the Endangered Species Act to deprive property owners and 
resource users of their rights, while at the same time preventing 
courts from considering the hardship resulting from such an unbalanced 
approach. According to this view, TVA represents Congress's intent that 
the Endangered Species Act restricted federal courts' traditional 
equity jurisdiction. Yet in actuality, Congress did no such thing, even 
though it was fully capable of including an explicit provision that 
mandates the restriction of federal courts' traditional equity 
jurisdiction. See generally Brandon M. Middleton, Restoring Tradition: 
The Inapplicability of TVA v. Hill's Endangered Species Act Injunctive 
Relief Standard to Preliminary Injunctive Relief of Non-Federal Actors, 
17 Mo. Envtl. L & Pol'y Rev. 318, 351 (2010).
    Indeed, TVA's precedent has led environmental groups to routinely 
argue that the economic impacts of an Endangered Species Act injunction 
are irrelevant, and that courts are forbidden from considering economic 
hardship when fashioning injunctive relief. See id. at 322. The effort 
to exploit TVA has largely been successful. The Ninth Circuit, for 
example, holds that Congress ``removed from the courts their 
traditional equitable discretion in injunction proceedings of balancing 
the parties' competing interests. The `language, history, and 
structure' of the ESA demonstrates that Congress' determination that 
the balance of hardships and the public interest tips heavily in favor 
of protected species.'' Nat'l Wildlife Fed'n v. Burlington N. R.R., 23 
F.3d 1508, 1510-11 (9th Cir. 1994) (citing TVA, 437 U.S. at 174 and 
citation omitted).
    Similarly, in the First Circuit, courts hold that ``[a]ltough it is 
generally true that in the preliminary injunction context that the 
district court is required to weigh and balance the relative harms to 
the non-movant if the injunction is granted and to the movant if it is 
not,'' that is not the case in Endangered Species Act litigation, as 
``that balancing has been answered by Congress' determination that the 
`balance of hardships and the public interest tips heavily in favor of 
protected species.''' Strahan v. Coxe, 127 F.3d 155, 171 (1st Cir. 
1997) (quoting Burlington N. R.R., 23 F.3d at 1510).
    Today, a primary reason for costly Endangered Species Act 
litigation and the injunction even of ``green'' energy projects can be 
found in TVA's instruction that Congress placed endangered species 
above all other concerns, including humans. When a federal court 
stopped the development of a wind energy project in West Virginia two 
years ago due to alleged threats to the endangered Indiana bat, it 
repeatedly cited TVA and opined that ``Congress, in enacting the ESA, 
has unequivocally stated that endangered species must be afforded the 
highest priority.'' Animal Welfare Inst. v. Beech Ridge Energy LLC, 675 
F. Supp. 2d 540, 581 (D. Md. 2009). In California, the same attorneys 
who forced the injunction of the West Virginia wind project are now 
attempting to prevent the City of San Francisco from engaging in flood 
control efforts at a municipal golf course, supposedly because flood 
control harms the California reg-legged frog. Of course, the 
environmental attorneys' argument is based largely on TVA, as they 
claim that TVA prevents the district court from balancing the hardships 
of increased flooding against the needs of a local amphibian. See 
Plaintiffs' Reply in Support of Motion for a Preliminary Injunction at 
22 n.21, Wild Equity Inst. v. City & County of San Francisco, No. 3:11-
cv-000958-SI (N.D. Cal. Nov. 4, 2011).
    Based on the environmentalists ``species protection whatever the 
costs'' approach to the Endangered Species Act, it should come as no 
surprise that Judge Wanger's recent limitation of the TVA rule has 
found disfavor with the environmental community. While Judge Wanger 
allowed water users to at least have an equal voice in the delta smelt 
proceedings, NRDC and Earthjustice have appealed, arguing that the 
``district court's view of TVA v. Hill is wrong,'' and that the court 
``improperly balanced'' the water supply impacts of Endangered Species 
Act regulation against delta smelt habitat concerns. See Appellants' 
Opening Brief at 18-19, San Luis & Delta-Mendota Water Auth. v. 
Salazar, No. 11-17143 (9th Cir. Oct. 19, 2011).
    Keeping in mind Judge Wanger's admonition that, in the context of 
delta smelt water supply impacts, ``[i]f such harms cannot be 
considered in the balance in an ESA case, it is difficult to envision 
how a resource-dependent [party] would ever'' prevail on an injunctive 
relief motion in an Endangered Species Act case, the environmental 
community's protest of even the slightest limitation of TVA 
demonstrates just how much they depend on the decision's troubling 
precedent in cases where they seek to forestall economic development 
and human needs. Courts, in general, recognize the extreme viewpoint of 
environmentalists, but all too often they punt on engaging in a 
balanced approach to the Endangered Species Act. Instead, the blame for 
the harsh realities of Endangered Species Act litigation is placed on 
the legislative branch, as it was Congress who purportedly ordered that 
endangered species be afforded ``the highest of priorities,'' no matter 
the costs.
    It is misplaced, of course, for courts to blame Congress on an 
approach to injunctive relief never imagined or sanctioned by the 
legislative branch. But although the harms resulting from the 
``whatever the cost'' approach are all too real for property owners and 
resource users faced with an Endangered Species Act lawsuit, addressing 
the problem is fortunately not difficult. As the Supreme Court itself 
recognized in TVA, ``[o]nce Congress, exercising its delegated powers, 
has decided the order of priorities in a given area, it is for the 
Executive to administer the laws and for the courts to enforce them 
when enforcement is sought.'' TVA, 437 U.S. at 194.
    Thus, if Congress were to determine that the Supreme Court's 
interpretation of the order of priorities under the Endangered Species 
Act is incorrect, and that the human species is entitled to at least as 
much priority as allocated to any other animal species, then litigation 
will shift more towards a balanced approach that at least gives 
property owners and resources users an equal voice in the courtroom. 
Abandoning the ``whatever the cost'' mandate would deprive the 
environmental community of one of their greatest litigation weapons, 
and would result in less of a perverse incentive for regulated parties 
to protect endangered species. Moreover, allowing for a full balancing 
of harms and consideration of the public interest would not preclude 
environmental groups from obtaining an injunction in all Endangered 
Species Act cases, but would instead enable a more balanced approach to 
the statute that better comports with traditional notions of equity and 
fairness.

Conclusion
    Incentives matter. Unfortunately, when it comes to the Endangered 
Species Act, the incentives favor the environmental community without 
providing a meaningful benefit to the species that the statute seeks to 
protect.
    This is especially so in the context of Endangered Species Act 
litigation. Numerous environmental groups enjoy successful practices 
that depend on Endangered Species Act restrictions of property owners, 
natural resource users, and government agencies alike. This is a 
testament to how much the statute encourages and fosters Endangered 
Species Act lawsuits.
    Unless lawsuits become more difficult to bring and draconian 
injunctions more difficult to obtain, the disturbing trend of endless 
and ongoing Endangered Species Act litigation is likely to continue.
    I wish to thank the committee for the opportunity to provide this 
testimony and hope this analysis will assist the committee as it 
deliberates improvements to the Endangered Species Act.
                                 ______
                                 
    The Chairman. Thank you very much, Mr. Middleton. I want to 
thank all the panelists for their testimony. We will start the 
question period, and I recognize myself for five minutes.
    Let me just ask one question to all of you, and I think a 
one-word answer would be sufficient. I alluded to this in my 
opening statement, but do you agree that the purpose of ESA is 
to recover species? Mrs. Budd-Falen?
    Ms. Budd-Falen. Yes, I do.
    The Chairman. Mr. Miller?
    Mr. Miller. Yes, I do.
    Mr. Suckling. Yes, I do.
    Mr. Tutchton. Yes.
    Mr. Leshy. Yes.
    Mr. Middleton. Yes.
    The Chairman. Good, we are unanimous. The meeting will be 
adjourned.
    [Laughter.]
    The Chairman. One of the frustrations that we have, 
however, is that process and all of us particularly in the West 
have parochial issues. One of the issues that we are dealing 
with a great deal in my part of the country, and I alluded to 
it in my opening statement, is the fish runs in the Columbia 
River system. Since records have been kept the fish runs right 
now are at their greatest than they have ever been, yet we are 
still subjected to a judge holding up a biological opinion in 
that part.
    Let me ask Mr. Suckling, and I will ask you first and then 
Mr. Middleton, do you believe that hatchery fish should be part 
of the fish count when we count fish coming back? Because the 
runs are not counting hatchery fish. Do you believe the 
hatchery fish should be part of that?
    Mr. Suckling. The hatchery fish should not be considered 
part of the endangered species fish count.
    The Chairman. They should not. Mr. Middleton, do you 
believe they ought to be?
    Mr. Middleton. I do.
    The Chairman. OK. So we have a difference right there. In 
that regard, I find it a little interesting because, Mr. 
Suckling, again in your opening you listed a couple of the 
species that were listed prior to ESA being in place. Was the 
buffalo ever part of a listing to your knowledge?
    Mr. Suckling. No, sir.
    The Chairman. Mr. Middleton, do you know if it was at all?
    Mr. Middleton. I don't believe so.
    The Chairman. I don't believe it was either, and the reason 
I say that is because we recognize in our history how important 
the buffalo was. Buffalo roamed the plains. We heard a great 
deal about that. And yet right now buffalo is a commercial 
commodity, and it has recovered to where we don't say that they 
are endangered. Yet the way that they recovered a purist would 
say would not be to run the Great Plains like they did. In 
fact, they recovered through a method that is very similar to 
farming or perhaps a hatchery process. In fact, you could say 
probably that the recovery of the salmon was because we counted 
hatchery buffalo even though they were never listed.
    And so I have a hard time trying to reconcile why we 
shouldn't count hatchery salmon. The first hatcheries that were 
built on the Columbia River system were roughly in 1900. Now it 
varies maybe 10 years one side of that. And if we take 1900 and 
say that the average lifespan of a salmon is roughly five 
years, I know it varies a little bit, but one year going out, 
three years in the ocean and one year coming back, that would 
be 22 generations of hatchery.
    Do we believe that every wild fish that we count coming 
back through the system that is not marked, is it logical to 
assume that part of them is the offspring of those hatchery 
salmons 22 generations ago? Does anybody want to refute that or 
anybody want to support that?
    [No response.]
    The Chairman. Well, you know, to me, it is a very 
interesting observation, and yet we somehow believe that the 
only fish that we can count as far as recovery in the Columbia 
River system is fish that has been marked, and do we believe 
that we mark 100 percent of them?
    See, this is the frustration when we look at what happens, 
and to kind of tie the knot on this, the bi-op or the 
management plan for the Columbia River system is 10 years in 
the making, virtually all, virtually all, not all, but 
virtually all of the stakeholders on both sides of the argument 
have agreed that the bi-op that is pending is something that is 
workable. Yet, because of litigation, it has been tied up in 
court, and I don't think that does the Northwest very well, and 
when you look at common sense, fish runs are coming back at 
their largest ever even though hatchery is not part of it, yet 
we seem to have this frustration.
    So, when we talk about litigation, I think there certainly 
is a--if there is one example of that, it's the Northwest and 
the runs of salmon.
    Thank you very much. I recognize Mr. Markey.
    Mr. Markey. Thank you, Mr. Chairman.
    Mr. Miller, as I understand it, your project was in line to 
receive $200 million in Federal bonding assistance, is that 
correct?
    Mr. Miller. Yes, clean renewable energy bonds, that is 
correct, yes.
    Mr. Markey. And the State of Washington has a 15 percent 
renewable electricity standard by the year 2020?
    Mr. Miller. That is correct, yes.
    Mr. Markey. Without those two government policies, would 
you even have been able to consider this project?
    Mr. Miller. I can't speak for the other three public 
utility districts. They were covered under the renewable energy 
standard from the State of Washington.
    Mr. Markey. Without the $200 million in Federal assistance, 
would you have been able to consider the project?
    Mr. Miller. Yes, my utility, Pacific County, would have 
considered, yes.
    Mr. Markey. OK. And what would your funding have been?
    Mr. Miller. Probably tax-exempt bonding.
    Mr. Markey. Interesting. Mr. Leshy, is there a 
misunderstanding about the Endangered Species Act to the extent 
to which according to your testimony it's used about half the 
time by plaintiffs claiming there is not enough regulation and 
about half the time by plaintiffs claiming there is too much 
regulation. So it comes from both sides using this mechanism, 
is that correct, almost in equal measure? What's the impact in 
terms of the relationship between the government and ordinary 
citizens if we remove this ability to have access to the 
courts?
    Mr. Leshy. Well, I think it would be problematic, Mr. 
Markey. It is an equal access to justice situation. It is also 
very common not only in environmental laws but all kinds of 
other regulatory laws where people can challenge the 
government's compliance in court if they think there is too 
much regulation or not enough, and that is the reason we have 
an independent judiciary. This really goes back to the founding 
of the country. And in my experience actually the government 
under the Endangered Species Act gets sued about the same 
amount by both sides and actually I think both sides win about 
the same amount of time, although the government wins most of 
the time as I said, and I think that is about right, and I 
think it would be a terrible mistake actually to take the 
courts out of it, and I think it would be a terrible mistake 
for people who are regulated as well as people who think there 
is not enough regulation.
    Mr. Markey. So it wins in equal measure, the government 
against either side? Whether it is this side bringing a case or 
this side bringing a case, the government wins most of the 
time?
    Mr. Leshy. I think that is right. I mean, I don't have any 
hard statistics, but I read the court opinions when they come 
out, and that----
    Mr. Markey. And about half the time the cases come from one 
side and half the time the cases come from the other side?
    Mr. Leshy. I think in general that is true.
    Mr. Markey. Can we move just quickly to job creation, 
whether it is Pacific salmon country or Greater Yellowstone 
area or Florida Keys? How does the Endangered Species Act help 
in job creation?
    Mr. Leshy. I am sorry. Are you asking me?
    Mr. Markey. Yes, please.
    Mr. Leshy. Well, as the Edwards Aquifer example shows, I 
think if you take the broad picture about does the Endangered 
Species Act make the administration of natural resources and 
the management of natural resources in this country better, 
more sustainable for the long term, and we depend upon those 
resources for all kinds of economic activity, I think the 
answer is clearly yes, it does make it better. Edwards Aquifer, 
I mean, the jobs, the thousands of jobs that are dependent upon 
that are more secure, absolutely more secure because of the 
Endangered Species Act.
    Mr. Markey. Mr. Suckling, could you take on that question, 
please?
    Mr. Suckling. There was a recent study by some economists 
at MIT to try to answer the question of whether environmental 
regulations were hurting the economy or not, so they ranked 
every state in the country based on the strictness of its 
environmental laws, and then they ranked every state based on 
its economic health, and they found that the states with the 
strongest environmental laws were the states with the strongest 
environmental health as well, and that really is a good 
indicator of what I think we all know in some degree, which is 
that protecting the environment is good for the economy.
    Mr. Markey. OK. And Mr. Tutchton, again, the big charge 
here is that many of these are just frivolous lawsuits 
encouraged by the fact that there is an Endangered Species Act. 
How much money do you make when you bring a frivolous lawsuit?
    Mr. Tutchton. Zero. You could be sanctioned by the court 
and you could have to pay the other side's fees. It is 
unethical to file a frivolous lawsuit.
    Mr. Markey. OK. So we are really not talking about 
frivolous lawsuits then.
    Mr. Tutchton. No. I think the criticism is actually 
directed at successful lawsuits where the plaintiffs have 
proven the government behaved in an unjustified manner.
    Mr. Markey. And if your organization defended the rights of 
veterans or small businesses, brought a substantial lawsuit, 
would the courts award attorneys' fees?
    Mr. Tutchton. Well, we have to meet three criteria at 
least. We have to win. We have to convince the court that the 
government's position was substantially unjustified, and then 
we have to convince the court that the amount of fees we sought 
is reasonable, and if we can do all three of those, we could 
get recovery.
    Mr. Markey. OK. So there is a test that has to be met and 
only then are you compensated for the case which you have won?
    Mr. Tutchton. Yes. In a typical case we never receive what 
we ask for, and it is not a productive way to make a living.
    Mr. Markey. Thank you, Mr. Chairman.
    The Chairman. Thank you. Thank the gentleman. Next we will 
go to the gentleman from Michigan, Mr. Benishek.
    Dr. Benishek. Thank you, Mr. Chairman.
    Ms. Budd-Falen, in your testimony you mention that the 
implementation of the ESA has real impacts on ranchers and 
farmers and other working people, and I tend to agree with you. 
It is certainly true in my northern Michigan district. We often 
hear from farmers frustrated over the gray wolf. You know, it 
is still listed as an endangered species in the Great Lakes 
area, and really I think that the gray wolf has been a 
remarkable success and a testament to the fact that we can 
recover a species. I mean, at one point there was less than 20 
gray wolves with a recovery goal of 200, but now we have about 
800 wolves. Farmers in my area are bringing me carcasses 
showing me, you know, their cattle are being killed by the 
wolf, and I think it is a problem that the Michigan Department 
of Natural Resources can't help control the wolf population 
because of its inability to get the wolf delisted from the 
endangered species list.
    What in your opinion would be the one thing that we could 
do to help the Endangered Species Act be more effective in its 
ability to actually control and help endangered species? I 
mean, to me, this environment of litigation does not allow the 
agency to spend its money most wisely. What do you think that 
we as a Congress should do to make that work better?
    Ms. Budd-Falen. I think that the most effective thing that 
we can do with regard to endangered species is for one thing 
change the timeframes. Part of the litigation problem is that 
these groups are not litigating over whether a species ought to 
be listed or not. They are litigating over the fact that the 
Federal government can't comply with a 90-day timeframe or a 
12-month timeframe when environmental groups have admitted that 
they are filing thousands of petitions that are simply going to 
crash the system. The Federal government can't comply with 
those timeframes, so I think that is one problem.
    I think another problem is that when the government is 
spending so much time in litigation it doesn't have time to 
look at recovery plans. It doesn't have time to look at 
conservation agreements. I have worked with a group of 
landowners in Idaho where they had a conservation agreement for 
a plan. The Western Watersheds Project decided to file a 
petition with the court to force the listing anyway, and so all 
of that work and time and money that these landowners both at 
the state and Federal government did to create a conservation 
plan is totally out the window.
    I think that once a species gets recovered to the point of 
the wolves they need to come off the list. Taking a species off 
the list doesn't mean all of a sudden that we are going to 
start going out and shooting every wolf or that we are going to 
do something to harm the species, but you could certainly turn 
the management back over to the states, allow the states to 
have more control, allow the landowners to participate instead 
of just simply saying the species is on the list, the habitat 
is designated, and you face Federal prison and substantial 
fines if you harm, harass or take a species.
    Dr. Benishek. Thank you. I will yield back the remainder of 
my time.
    The Chairman. Thank you. The Chair recognizes the gentleman 
from New Jersey, Mr. Holt.
    Mr. Holt. Thank you, Mr. Chairman, and I thank the 
witnesses for fact-based testimony. Thank you.
    Mr. Leshy, would you care to comment on Mr. Middleton's 
comment that the Endangered Species Act puts animal species 
above humans?
    Mr. Leshy. Yes, I am actually happy to debate whether the 
Supreme Court got it right in TVA v. Hill. The line that was 
quoted about whatever the cost actually came out of a report of 
a House committee that was debating the Endangered Species Act 
back in 1973, and it does say in the tradition of Noah and the 
Ark that you really have to do everything you can to protect 
endangered species. It has a very clear objective.
    Now how it gets there actually has a lot of flexibility and 
I think that flexibility has been shown over time, and the 
administration of the Act is getting better in that respect. 
For example, as I mention in my testimony, part of the problem 
with how the Act has been administered is the species actually 
don't get on the list until they are really in very grave 
danger, which makes it very hard to provide for their needs. If 
you can get out in front of that process and if you can manage 
ecosystems more broadly to protect species that are sliding 
toward the list but not there yet, you can do a much more 
predictable job from the standpoint of the regulated community, 
and that is exactly what has happened.
    If you look in the last 20 years big so-called multispecies 
habitat conservation plans have become quite popular because 
the regulated community has joined with the government and 
conservationists to say we can get out in front of these 
problems and be more effective at it, and that is frankly the 
place I think that this Committee could have the most utility 
is to look at how those plans have been formulated and operated 
and are there ways we can improve the Act in that regard.
    Mr. Holt. Mr. Suckling, following along that line, Mr. 
Leshy had talked about an ER triage approach that is necessary 
because species are listed so late in their decline. Do you see 
any ways of changing it, changing the law to improve that and 
to bringing more science-based thinking into it?
    Mr. Suckling. I think we can improve the speed at which we 
put species on the endangered species list, get them on there 
earlier so they can recover faster without changing the law at 
all. We can improve that simply by funding that program to do 
all it needs to do.
    Similarly, in the past we had a problem with species not 
having Federal recovery plans even if they got listed. That 
problem through funding has largely disappeared. The Agency has 
really remarkably improved the number that have recovery plans. 
So, in many regards, adequately funding the current Act and the 
government is all that is needed to improve species.
    Mr. Holt. Thanks. That is good to know.
    This is going over ground that has been plowed a little bit 
this morning, but since it deals with the title of the hearing 
I think we really ought to maybe put to rest any 
misconceptions. Mr. Suckling, would you care to address again 
the contention of Ms. Budd-Falen that it is a failure because 
so few species have recovered?
    Mr. Suckling. Yes, the issue here is, you know, it took us 
hundreds of years to get these species to their imperiled 
state. I will give you an example. The right whale, it was 
called the right whale because it was the right whale to hunt 
to get oil from, that is why it is the right whale. We hunted 
the right whale to the very edge of extinction over a period of 
1,000 years. That is how long it took to endanger that species. 
We got it on the endangered species list in 1967. Its Federal 
recovery plan says just to downlist it to threatened state is 
going to take 150 years. We don't even know how long it will 
take to get it off the list.
    And so to say that it is going to take 150 years to fix a 
problem that was 1,000 years in the making is a very reasonable 
approach, and it would just be incorrect to complain that in 
fact we have failed because that species has not yet recovered. 
It is going to take decades. We have Federal scientific 
recovery plans telling us what to do, how long to do it. The 
average is 42 years. The species on average have only been 
protected for 21. We have decades to go, and that is how it 
should be, but we are on track is the good news.
    Mr. Holt. Thank you. Thank you, Mr. Chairman.
    The Chairman. Thank the gentleman. The Chair recognizes the 
gentleman from South Carolina, Mr. Duncan.
    Mr. Duncan of South Carolina. Thank you, Mr. Chairman.
    First off, I would like to ask the Chairman to address at 
some future hearing the Equal Access to Justice Act because I 
think we need some more transparency in the whole process of 
this lose or pay system. I know in most states where you have 
lose or pay it deals with paying for the court cost, the cost 
of litigation, but not necessarily attorneys' fees, and I 
understand the taxpayer dollars are going to pay the attorneys 
that are litigating against the U.S. Government, so just a 
request, and I know it is something that interests this 
Committee.
    The Chairman. It does interest us and that is part of what 
we are talking about today.
    Mr. Duncan of South Carolina. Yes, sir. Thank you.
    My brother-in-law lives in northwest Montana, and I have 
been traveling out there since the 1980s, and I watch the 
timber industry being decimated because of the spotted owl, and 
we later learned that the spotted owl didn't just need old 
growth forest, old growth stands, it could really reproduce and 
nest in things as simple as a K-Mart sign, so we have seen 
examples where the Endangered Species Act has decimated an 
industry.
    We witnessed recently, I think the gentleman from 
California mentioned the snail darter and the irrigation issue 
in California which really drove commodity prices and fruits 
and vegetable prices up. I am concerned about how the ESA is 
used to keep us from securing our southern border areas where 
fencing could be put in place and take care of the sovereignty 
of this nation. I think that is important.
    I have witnessed in South Carolina where the Federal Energy 
Regulatory Commission or FERC has halted a permit for a 
hydroelectric project, basically reissuing a permit because of 
a sturgeon that once resided in these waters but hadn't been 
seen in this river since the late 1800s. So we think that just 
by denying an energy permit for a hydroelectric project that 
this sturgeon is going to magically reappear in South Carolina 
rivers. I think this whole Act needs to be revisited.
    The gentleman, Mr. Suckling, mentioned if you take an 
antibiotic for a day and it doesn't work, then it won't work if 
you have that mindset I guess, but if you take it for 30 years 
and then decide it won't work, maybe you should have changed 
earlier. Maybe you should have changed the whole process 
earlier if it is still not working. So I am glad we are 
revisiting this. I hope we will rewrite this.
    I would like to ask Mr. Suckling a question because it 
deals with the Southeast and species, going back to that 
sturgeon example in 2011. In July, you stated that the CBD's 
petition to list 404 Southeast species took over a year to 
develop and involved the work by at least three scientists. How 
was this work funded?
    Mr. Suckling. The Center has 43,000 members who provide 75 
percent of our funding, so they funded that work. I would also 
like to say for the record no spotted owl has ever nested in a 
K-Mart sign anywhere.
    Mr. Duncan of South Carolina. Is there a way I can get a 
list of those 404 Southeast species? Can you provide that?
    Mr. Suckling. Yes. The list of those species is on our 
website if you go on there, and you will see a section about 
our settlement and all the species are on there.
    Mr. Duncan of South Carolina. OK. I have nothing further, 
Mr. Chairman. I yield back.
    The Chairman. Would the gentleman yield to me? Before he 
yields back, would you yield to me?
    You mentioned a spotted owl in the Northwest in it was the 
old growth, and when you talk about economic impact there has 
been an huge economic impact because the timber industry in the 
Northwest is simply not there now. It is roughly 20 percent of 
what it was in the late 1980s. But what is also interesting is 
there is another study that came out that said in fact it was 
not the old growth that caused the demise of the spotted owl, 
it was actually a predator called the barred owl, which is a 
little bit larger species and it was more aggressive than the 
spotted owl.
    Now unfortunately that has become public, but nothing is 
still done. We still cling to the idea that only old growth can 
support the spotted owl, and I have personally by the way seen 
non-old growth where the spotted owl has in fact nested, so I 
thank the gentleman for bringing that up from your brother-in-
laws's perspective, but I just wanted to add one more part to 
that, that there is a study that says in fact it wasn't old 
growth or lack of old growth, it was the barred owl, so I thank 
the gentleman for yielding.
    I will recognize the gentlelady from Guam, Ms. Bordallo is 
recognized.
    Ms. Bordallo. Thank you very much, Mr. Chairman. My first 
question is to Mr. Tutchton and Mr. Suckling.
    Your organizations have been accused of using lawsuits as a 
way to generate income. The Pacific Legal Foundation, who Mr. 
Middleton is testifying on behalf of today, lists income from 
court-awarded attorney fees as approximately $1.44 million on 
their 2008 audited financial statement. This is almost a 
quarter of the foundation's income for 2008. Have court-awarded 
attorney fees ever approached this percentage of income for 
your organizations? And I would like just a short answer.
    Mr. Tutchton. No.
    Mr. Suckling. Now our Federal income fee is about 3 to 4 
percent per year. In 2008, when the Pacific Law Foundation got 
$1.4 million, the Center got $356,000 in retained legal fees. 
Very often the Pacific Legal Foundation gets far more money 
than Center each year.
    Mr. Tutchton. That is true for us as well, Ms. Congressman. 
We got $10,000 in 2008. I did want to say we did believe in 
full transparency. These numbers are reported on our 990s. They 
are reported in court-approved settlements signed by Federal 
judges available to anyone. In 2008, that was less than 1 
percent of our income
    Ms. Bordallo. So I take it then that the answer is no in 
both cases.
    My second question, Mr. Tutchton, why is the settlement 
that your organization entered into with the Fish and Wildlife 
Service a good deal?
    Mr. Tutchton. Well, it is a very good deal if the purpose 
of this Committee is to reduce litigation. The settlement is a 
vast litigation reduction device which will also allow the 
Service to begin working first on the species they say are 
their highest priorities, so it will allow an entirely science-
driven process where the Service will pick the species or they 
have already picked them, 250 of them that they will work on, 
and what the settlement does is actually force them to finish 
their work, and that is in everyone's interest to get the list 
correct so that we can make future decisions based on an 
accurate list of species we are trying to protect.
    Ms. Bordallo. So, for the record then, you are saying that 
it reduces litigation and allows science to drive the listing 
process?
    Mr. Tutchton. Yes.
    Ms. Bordallo. Mr. Tutchton, I have another question for 
you. Could you respond to Ms. Budd-Falen's comments on 
litigation for the purpose of meeting a deadline versus 
recovering an endanger species? Now how could a species recover 
if it is not listed?
    Mr. Tutchton. It cannot most of the time, 90 percent of the 
time. Deadlines are a method to force recovery. So, if the 
desire is to increase the rate of recovery, we need the Federal 
agencies to pay attention to deadlines. It is the chronic 
disregard of deadlines that has kept some species from people 
being able to work on their recovery sooner, so the sooner we 
can identify the correct species, get them on the list, the 
sooner we can begin working to get them off the list, and that 
is what deadline litigation accomplishes.
    Mr. Suckling. And if I may add, the Congress provides 
separate budgets for the U.S. Fish and Wildlife Service for 
their listing program and for their recovery program. So, 
regardless if they list fast or slow or not at all in the 
listing program has zero effect on the dollars available in the 
recovery program. So listing species does not in any way impede 
the recovery budget or the recovery work.
    Ms. Bordallo. Thank you.
    Mr. Chairman, I would like to have a clarification of 
something here. I have listened to all the witnesses here and 
there has never been a mention--always the states. I represent 
the U.S. territory of Guam. My colleague here, Mr. Sablan, 
represents the Northern Marianas Islands. Now are we included 
in your statistics or are we not?
    Mr. Tutchton. Yes, you are. In fact, some of the species 
that are in the settlement reside in your territories, and you 
are fully included on equal footing with the states
    Ms. Bordallo. Mr. Chairman, you know, I am always listening 
for this and really out of the territories that are part of 
this Congress we represent 4.5 million Americans, so I think we 
do deserve mention now and then.
    Mr. Suckling. And if I may, there is a way in which you are 
not represented, which is this. The majority of imperiled 
species that are the most imperiled occur on those islands, but 
yet they are funded at a much lower level than the mainland. In 
fact, we have a very serious problem with the Endangered 
Species Act of the Pacific Islands not receiving funding in 
proportion to the number of species they have.
    Ms. Bordallo. Thank you. Thank you very much. Thank you, 
Mr. Chairman.
    The Chairman. Thank the gentlelady. Recognize the gentleman 
from Nevada, Mr. Amodei.
    Mr. Amodei. Thank you, Mr. Chairman.
    Mr. Suckling, you and--I am sorry, I am kind of new at 
this, the gentleman next to you.
    Mr. Tutchton. Mr. Tutchton.
    Mr. Amodei. My colleague from Guam just talked about funds 
that had been awarded based on litigation compared to the 
Pacific Legal Foundation. It is my understanding that those 
funds are court-ordered based on results in specific 
litigation. Is that accurate?
    Mr. Tutchton. Yes. I mean, they are court-ordered. It 
depends on how many hours you spent to achieve the result.
    Mr. Amodei. Well, I understand that, but if the Pacific 
Legal Foundation happened to have gotten a million something 
versus several hundred thousand, is it a true general statement 
to say they must have been more successful in the litigation 
that they chose to be involved in than the folks on the other 
side?
    Mr. Tutchton. It is a statement the Pacific Legal 
Foundation prevailed in its case against the Federal 
government. I would not say they are more successful than our 
litigation. I would say our litigation is more efficient. We 
did the same amount of work much less expensively.
    Mr. Amodei. OK. So you would say that they prevailed in a 
much less efficient manner than you did and therefore they are 
getting four times more the funds awarded?
    Mr. Tutchton. Yes.
    Mr. Amodei. That is a great answer. Thank you very much. 
Now let me ask you this. Also the fact that it is a larger part 
of the percentage of their budget, is that an indication on 
your success in fundraising outside the litigation process as 
opposed to theirs?
    Mr. Tutchton. Well, I think the issue here is that industry 
is complaining about funds.
    Mr. Amodei. Excuse me. I get to form the question if I can, 
Mr. Suckling, so if you think it is a bad question, please feel 
free to say that, but the fact that it is a larger percentage 
of their budget is a function of how much money they raise as 
well as how much money they get awarded in court proceedings. 
Is that an accurate thing to say?
    Mr. Suckling. No, sir.
    Mr. Amodei. OK. Then tell me where I have missed that in 
about 30 seconds or less, please.
    Mr. Suckling. We get our money from a very large membership 
base. They get money from a few corporations and foundations.
    Mr. Amodei. Oh, I am not asking where they got their money 
from. I am asking how much they raised compared to you. Do you 
have any idea what your budget is compared to the Pacific Legal 
Foundation?
    Mr. Suckling. I do not know their budget, sir.
    Mr. Amodei. Thank you for your honesty. Sir?
    Mr. Tutchton. Our budget is much smaller. Our budget is 
about $1.5 million in total. So, if $1.4 million is 25 percent 
of theirs, they are four times our size.
    Mr. Amodei. OK. And how much did you say--I think you 
mentioned you had recovered $300,000 or something in a year 
that you were talking about. So is it a quarter of your budget, 
the $300,000?
    Mr. Tutchton. The figure for WildEarth Guardians is $10,000 
in 2008.
    Mr. Amodei. OK.
    Mr. Tutchton. That is about 1 percent, less than 1 percent.
    Mr. Amodei. Thank you. Now is it my understanding, and if 
it is not, just correct me bluntly, this is an oversight 
hearing, so after looking at how the law has worked over the 
years it is like so whatever the powers that be have decided 
they want to revisit how this is working and hear from various 
stakeholders, obviously what you folks are, are you opposed to 
oversight and revisiting these issues, or do you think 
everything is just great the way it is and we ought to leave it 
alone, stay out of your business?
    Mr. Suckling. No, oversight is excellent. It helps bring 
out the facts that we have seen here today.
    Mr. Amodei. OK. Final question. I am new, which is on 
abundant display at the moment I am sure. I have heard 
testimony about how long it takes for these recovery times and 
I have also seen information that you have put up about how we 
track numbers of species. Is there anything in the existing 
regulations or statutes which talk about revisiting Federal 
recovery plans based upon how numbers of, for instance, 
breeding pairs have risen or fallen? Do we revisit those or 
once that Federal recovery plan is in process is it a pretty 
hard thing to change even if it says, maybe rightly so, 150 
years? Is there any reference to numbers in those two?
    Mr. Suckling. Yes, they are revisited in three ways. Every 
two years the Fish and Wildlife Service does sort of a quick 
and dirty study on species recovery trends of each species. 
Every five years it does a much more substantial review of the 
status of the species, including asking the question does the 
recovery plan need to be updated or amended or not, and then 
finally for many, many species they amend the recovery plan 
after seven or 10 years, so it is a constant revision process.
    Mr. Amodei. And can you give me a general statement if you 
are able that indicates that as a result of the existing 
revisiting process of those plans how many species have had 
either their chronological timeframe reduced or their numbers 
reduced or you know?
    Mr. Suckling. Oh, I see. I can't give you the number of 
them, but I can say that when new recovery plans are put out 
there that are amended they sometimes reduce the time they 
think will be needed to recover. They sometimes expand it 
depending on what the science at that time says.
    Mr. Amodei. Do you have a sense of, because I don't 
obviously, that is why I am asking the question, do you have a 
sense of whether that recovery period is good, recovery period 
needs to be shortened or it needs to be increased? Has anybody 
tracked that?
    Mr. Suckling. Yes, they don't I think track it as sort of a 
general statistical issue, but if you look at the rate at which 
species factually have recovered and you compare that to what 
the recovery plans say should happen, they match pretty well in 
about 82 percent, and so I think that is an indication that 
things are generally on track.
    Mr. Amodei. Thank you. Thank you, Mr. Chairman.
    The Chairman. Time of the gentleman has expired. The Chair 
recognizes the gentlelady from California, Mrs. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chair.
    Mr. Leshy, the Majority argues that the litigation that 
seeks compliance with the Endangered Species Act impedes 
recovery. Was the Department engaged in ESA-related litigation 
during your tenure as Solicitor of the Department of Interior, 
and did active litigation prevent Fish and Wildlife Service 
from recovery efforts, and is it possible the litigation can 
ultimately lead to collaborative species recovery? All in one 
breath.
    Mr. Leshy. Excuse me, Mrs. Napolitano. I think the answer 
is yes to all of that. We were sued a lot when I was in the 
government, again as I said by all sides. Sued on listing 
issues, also sued on compliance issues in terms of biological 
opinions and the adequacy of them and that sort of thing, and I 
don't think the listing litigation really had any effect on the 
recovery exercise because, as was pointed out, the budget 
process is separate. There is a listing budget and then there 
is the rest of the Act administration budget, so they are 
really compartmentalized and segregated, and so there is really 
no interference there I think in terms of litigation.
    Mrs. Napolitano. But can this litigation ultimately lead to 
the species recovery?
    Mr. Leshy. Well, sure. I mean, you know, the full machinery 
of the Act does not come into play until species are listed, 
and so a species that is sliding toward extinction cannot go 
extinct unless it is listed because it is not really protected 
until it is listed. So the listing process is a very important 
process, getting species on the list, and it is really a 
science-driven process. I mean, the species is either in peril 
or it is not. That determination is made. If the answer is yes, 
then it is listed and then the rest of the Act machinery comes 
into play.
    Mrs. Napolitano. One of my wild questions I have always 
asked is do you ever think there will be the human species 
listing?
    Mr. Leshy. I hope not. That would be----
    Mrs. Napolitano. We are a species, are we not?
    Mr. Leshy. Yes, we are.
    Mrs. Napolitano. Thank you. Mr. Leshy, also in Mr. 
Middleton's testimony he mentions the consolidated smelt cases 
and the court's findings. The same judge recently has been in 
the headlines in California of course, and who has retained him 
as counsel, Judge Wanger?
    Mr. Leshy. Sorry, I missed that question.
    Mrs. Napolitano. The same judge that was mentioned in the 
consolidation of the smelt cases.
    Mr. Leshy. Right.
    Mrs. Napolitano. Is recently retired from the bench and is 
now working for?
    Mr. Leshy. You know, I have been away from California the 
last six months, so if this has happened recently, I don't 
know.
    Mrs. Napolitano. I will tell you, Westlands.
    Mr. Leshy. Oh. Well, that is interesting. Well, Judge 
Wanger has been involved in many cases out there involving 
the----
    Mrs. Napolitano. Right.
    Mr. Leshy.--Endangered Species Act and other things and of 
course there is a Court of Appeals that sits to review 
decisions of District Court judges.
    Mrs. Napolitano. Well, I am sure you have read his last 
ruling, right, DX-2, and could you tell briefly in your opinion 
who benefitted from it?
    Mr. Leshy. I haven't read that ruling, so I must decline.
    Mrs. Napolitano. OK. Well, my understanding is again 
Westlands' district.
    Now I sat next to Judge Wanger, he was invited to address 
some Southern California elected officials and water agencies, 
and I did ask him because in his presentation to that group he 
never mentioned Westlands, and my importance to that of course 
is the Southern California water, and I was very surprised that 
he did not actually make mention of that because he went 
through his whole career, including his current renderings, 
which he said, and I quote, ``I have a difference of opinion, 
but I have to follow the law.''
    So I am very concerned of course as to what could happen, 
and that is just my personal opinion because to us we also feel 
like Mr. Suckling mentioning that protecting the environment is 
good for the economy. California is one of the most 
environmental protected and great on the economy and that could 
hurt both, so with that, thank you.
    Mr. Leshy. If I could just comment briefly. On the Delta 
smelt litigation and also on the Pacific salmon litigation, at 
heart really in the short term as well as the long term this is 
sort of a jobs versus jobs issue. That is, we have a declining 
resource and there are people fighting over it, but there are 
as many people dependent upon a healthy salmon population for 
jobs in the Pacific Northwest as are regulated by the 
Endangered Species Act, and that is an important thing to keep 
in mind.
    Mrs. Napolitano. Well, salmon, the endangered salmon was 
prohibited from fishing in California for three years, so a lot 
of the fishermen lost all their business and the economy in 
that area went down to nil. They are finally able to do some 
fishing, although it is a little bit less than they expected, 
but it did work and they are all happy and it is helping the 
economy, so with that, thank you, Mr. Chair, for your 
indulgence.
    The Chairman. Time of the gentlelady has expired. The Chair 
recognizes the gentleman from Idaho, Mr. Labrador.
    Mr. Labrador. Thank you, Mr. Chairman. I guess we just 
heard news here that California's economy is actually doing 
well. I didn't realize that, and I am sure the environmental 
movement has helped a lot with that recovery. But, Mr. 
Middleton, I don't really know the facts about your 
organization, how much money you guys make from lawsuits versus 
how much you get from donors, but how many organizations like 
yours, like the Pacific Legal Foundation are there?
    Mr. Middleton. Well, there are quite a few organizations in 
the country like our organizations, and I would also add I 
think that Mr. Suckling's comments on our fees are misleading 
because we don't strictly do environmental litigation as 
opposed to CBD. We also litigate for the protection of civil 
rights and freedom of speech, for example, and that particular 
statistic used by Mr. Suckling, I don't believe much, if any, 
of those fees were generated from environmental litigation. 
They were for the protection of civil rights.
    And so, to the extent that Mr. Suckling is equating fees 
generated in environmental litigation with fees that are 
generated through the protection of civil rights, I think that 
says a lot about where the priorities of the environmental 
movement are.
    Mr. Labrador. I am shocked that Mr. Suckling would try to 
mislead this panel in any way.
    Mr. Suckling, what is your educational background? You 
know, you gave us a lot of science. Are you a scientist?
    Mr. Suckling. I am not, sir.
    Mr. Labrador. You are a doctor, right? You are a Ph.D.?
    Mr. Suckling. I am not, sir, no.
    Mr. Labrador. But you were studying for a Ph.D.?
    Mr. Suckling. I was studying for a Ph.D., correct.
    Mr. Labrador. OK. And that was not in science?
    Mr. Suckling. No, it was in philosophy.
    Mr. Labrador. In philosophy. And you have indicated that 
one of your biggest goals is to see a lot of litigation so we 
can stop a lot of development in the future, isn't that 
correct?
    Mr. Suckling. No, that is incorrect, sir. My goal is to 
protect the native species and the habitats they rely on.
    Mr. Labrador. Yes, let us talk about that. You gave us a 
lot of science today, again knowing that you are not a 
scientist, but I will still ask for your opinion. You said on 
average it takes 21 years--most species have been 21 years on a 
list and it takes 42 years for their recovery. And then you 
gave us a bunch of data on, you know, 80 plus years for the 
whooping crane, you know, blah-blah-blah-blah.
    Can you tell us who determined what the recovery programs 
should be for all these species?
    Mr. Suckling. The U.S. Fish and Wildlife Service assembles 
a recovery team for each species on the list. The recovery team 
typically has Federal biologists of the Fish and Wildlife 
Service, state biologists from their state's game and fish 
program, and academic scientists from that state and that team 
of people develop the recovery plan.
    Mr. Labrador. OK. And who was this team of people? These 
were scientists?
    Mr. Suckling. Yes. Yes, sir.
    Mr. Labrador. OK. And the science never changes, so you 
never get to a point that you think, you know, something is 
actually recovering, so maybe we should shorten the time that 
the species should be on the list?
    Mr. Suckling. No, sir, the science always changes, which is 
one reason why the recovery plans are revisited every five 
years and updated.
    Mr. Labrador. OK. So when they are changed why do we keep 
extending the--I mean, you showed us some pretty impressive 
charts that show that these species are all recovering. We have 
had the experience of wolves in Idaho where they recovered 
actually beyond the plan, and we still have environmentalists 
telling us that we need to have the wolves still on the list.
    Mr. Suckling. Well, you know, that is a very interesting 
example because when we say that the wolf met the recovery plan 
objectives that was a recovery plan written in 1980, and one of 
the objections we had to it is that the plan was very much out 
of date, did not reflect the new science. It should have been 
updated.
    Mr. Labrador. So as long as it doesn't agree with your 
agenda, then you disagree with it, but as soon as we see 
recovery we don't have any kind of movement toward delisting 
any of these species, is that correct?
    Mr. Suckling. No, the Fish and Wildlife Service is in the 
process of proposing and delisting many species, so yes, they 
are in that process.
    Mr. Labrador. And how long have they been in that process?
    Mr. Suckling. Well, they have been delisting species since 
I think probably the Reagan Administration was the first 
species delisting and each administration since then has 
delisted species.
    Mr. Labrador. OK. And can you tell me what statute the 
Endangered Species Act gives the Fish and Wildlife the 
authority to regulate species that only exist within one single 
state?
    Mr. Suckling. Yes, sir. The Endangered Species Act gives 
them that authority.
    Mr. Labrador. Just within one single state?
    Mr. Suckling. Correct.
    Mr. Labrador. OK. And where is that within the Endangered 
Species Act?
    Mr. Suckling. The Endangered Species Act says that every 
endangered species, every imperiled species rather, should 
eventually be listed as endangered regardless of whether it is 
in one or many states, and in fact the majority of them occur 
in a single state.
    Mr. Labrador. OK. And we have been confronted in Idaho with 
a potential listing of the slick shot pepper grass, which only 
exists within the State of Idaho.
    Mr. Suckling. Right.
    Mr. Labrador. Ms., is it Budd----
    Ms. Budd-Falen. Falen.
    Mr. Labrador.--Falen, can you explain? You have had some 
experience with that, have you not?
    Ms. Budd-Falen. Yes, sir.
    Mr. Labrador. Can you explain what you think about that?
    Ms. Budd-Falen. I think it is actually----
    The Chairman. Turn on the microphone if you would.
    Ms. Budd-Falen. Oh.
    The Chairman. And real briefly.
    Ms. Budd-Falen. I think it is actually disappointing 
because the Fish and Wildlife Service has been up and down on 
whether it should be listed or note listed depending on who 
litigates against it at the time. There was a CCA in place 
though in which the Fish and Wildlife Service signed off on 
with the landowners, with the state, with all interested 
parties, and now because of the latest litigation it is going 
to be listed, and it cost the Federal government over $200,000 
for those three cases to fight over whether the listing ought 
to be. That is just in attorneys' fees.
    Mr. Labrador. So that was just one agreement in place and 
just because one group decided they didn't like the agreement 
we don't have the agreement, right?
    Ms. Budd-Falen. Yes, sir.
    Mr. Labrador. Thank you.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentlelady from Hawaii, Ms. Hanabusa.
    Ms. Hanabusa. Thank you, Mr. Chair.
    Professor Leshy, in reading your testimony you basically 
said that you have dealt with the Endangered Species Act which 
was first passed in 1973 in various settings, and you made a 
reference to the fact that you also did it in government 
service. Can you tell me what kind of government service and 
for how long you were doing that?
    Mr. Leshy. I worked in the Carter Administration, that will 
date me, for almost the entire time, and I was in the Clinton 
Administration from day one until the last day.
    Ms. Hanabusa. And what role did you play in terms of 
working with the Endangered Species Act?
    Mr. Leshy. In the Carter Administration, I think my title 
was Associate Solicitor of the Interior Department for Energy 
and Resources, and in the Clinton Administration I was 
Solicitor. That is the fancy word for the head legal officer.
    Ms. Hanabusa. So I see why you said that you are probably 
more than qualified to testify about this.
    You spent a good deal of time in your testimony talking 
about the Edwards Aquifer in Texas, and it brings to mind 
something regarding state law as well as Endangered Species 
Act, and, first of all, I assume from your written testimony 
that there is nothing considered like some kind of riparian 
water rights in Texas law that would give landowners downstream 
or someone else the right to actually use the water source. Am 
I correct in that?
    Mr. Leshy. Well, yes. The issue in Edwards was the Texas 
law that applies to groundwater, water underneath the ground, 
and Texas basically had and still has outside the Edwards 
Aquifer I think no law. I mean, the law is anybody can stick a 
straw down, drill a well and pump out as much water as they 
want for any purpose, and the kind of cruel irony here is that 
Texas law actually tells landowners that they have property 
rights in the water underneath their land, but they have no 
right to keep anybody else from sucking that water out from 
under them, so it is not really a property right at all. It is 
called the capture doctrine, and it basically means that there 
is absolutely no thought to managing this water source for the 
future.
    And what happened at Edwards was because of this quirk that 
there were endangered species threatened by it, Texas had to 
start managing the Edwards Aquifer to look to the long term, to 
sustain it over the long term and all those jobs and all that 
economic activity and all those people, millions of people 
living over the Edwards Aquifer depending upon it. So the 
Endangered Species Act resulted in a huge improvement, and I 
think most people who understand this in Texas would actually 
agree with that.
    Ms. Hanabusa. So I guess the other part of my question 
would be that in a situation like that, if you didn't have the 
Endangered Species Act and intervention of the feds, that in 
essence you could have no aquifer left today?
    Mr. Leshy. Absolutely. I mean, this was a race to the 
bottom of the aquifer. That was what Texas was engaging in, and 
it was presumably going to dry up the aquifer before anything 
happened had the Endangered Species Act not been there.
    Ms. Hanabusa. Do you have any other examples? I know that 
you pointed out the Texas situation. So, in the time from the 
Carter Administration and the Clinton Administration and the 
role as the Solicitor, were there any other examples of actual 
intervention on a state level to ensure the preservation of an 
aquifer or water source?
    Mr. Leshy. Well, sure. I mean, there are a lot of rivers, 
for example, in the west that are being managed in part to 
protect endangered species. Almost all of these rivers are 
basically regulated, controlled by dams, usually Federal dams, 
and the Endangered Species Act is affecting how those 
reservoirs are operated, and in many cases, and I have 
referenced this already, there have been major successful 
efforts at these multispecies habitat conservation plans that 
apply to these river systems that have resulted in protecting 
the water supply for people but also protecting the species. 
There has been quite a success story, and they have involved 
intensive cooperation between state water authorities and 
Federal agencies.
    I mean, this is not a top down Federal exercise. This is 
really a cooperative exercise. And I think if you ask most 
water managers in the west are we managing water better because 
the Endangered Species Act is there, I think most of them would 
say yes.
    Ms. Hanabusa. So being a devil's advocate, would you say 
that one of the concerns that people who are adverse to the 
Endangered Species Act is the fact that you could use that Act 
and actually step in and control, for example, a state's water 
system?
    Mr. Leshy. Well, you know, the net effect at Edwards was 
the Federal law told the state you had to do something about 
managing this. The mechanics of what they did, and that system 
is a state law system, it was passed by the Texas legislature, 
it is reviewed by the Texas courts. I mean, so the Federal 
government sort of and the Endangered Species Act sort of 
provides the club, but the mechanics and the decisions about 
how that management is going to take place was entirely state.
    Ms. Hanabusa. Thank you. Thank you, Mr. Chair.
    The Chairman. The time of the gentlelady has expired. The 
gentleman from Louisiana, Mr. Fleming.
    Dr. Fleming. Thank you, Mr. Chairman.
    I have been listening intently to the panel. I thank you 
today. So I want to see if I have this straight. The Endangered 
Species Act fails to require agencies to use sound science in 
their decisions and to examine the economic consequences of 
their actions. The ESA allows the Federal government to 
prohibit landowners from making adjustments to their own 
property because the land could provide habitat to some 
endangered species. The ESA's negative incentives encourage 
private landowners to clear their land of endangered species 
and suitable habitat. The ESA has cost hard-working taxpayers 
hundreds of millions of dollars, with some of this money being 
spent on countless lawsuits by environmental groups. And on top 
of that, ESA has only a 1 percent recovery rate.
    Ms. Budd-Falen, in your expert opinion, do I have this 
right?
    Ms. Budd-Falen. I believe that some of your statements are 
correct, and I respectfully disagree with some.
    Dr. Fleming. OK. Go ahead and elaborate.
    Ms. Budd-Falen. The Endangered Species Act requires that 
the listing of a species be based on the best scientific 
evidence available, and so while the determination of what the 
best scientific evidence is is certainly up for debate and 
certainly up for litigation, that is the standard the Fish and 
Wildlife Service is supposed to follow. Now they don't 
necessarily have to actually go out and count the number of 
species now and compare it to some number in the past, but you 
do have the scientific element.
    Economic impacts are not considered at all in the listing 
process. The only time economic impacts come in is in the 
designation of critical habitat, and there is actually a split 
in the court decisions about how those economic impacts are 
considered, whether they are considered only ``for listing'', 
which is the baseline analysis, or whether they include 
impacts--I mean, only designation of critical habitat or 
whether they include some of the impacts from listing because, 
quite honestly, it is really hard to separate whether a dollar 
sign comes from just the fact that the animal is there or the 
fact that it is designated critical habitat.
    So those are the two ``scientific processes''. The Agency 
has got very strict timelines to comply with those. Quite 
frankly, they never or very rarely do comply with those 
timeframes for whatever reason.
    Dr. Fleming. How close do they stick to following through 
the scientific requirements?
    Ms. Budd-Falen. I can tell you that I have never initiated 
litigation against them for the ``failure of best scientific 
information''. I have litigated on critical habitat 
designations because in my experience and based on my clients' 
needs they severely underestimate the economic impacts or 
damage from a critical habitat designation on private property 
rights, landowner rights, land use.
    Dr. Fleming. OK. So it sounds like that you are seeing 
somewhat of a consideration of the science, but virtually none 
on the economics.
    Ms. Budd-Falen. In my opinion, that is correct.
    Dr. Fleming. OK. Mr. Tutchton, same question to you. Do you 
agree with the list or do you disagree and if so, with what?
    Mr. Tutchton. Well, I disagree with the list respectfully. 
Let me give you a good example from your home state. I once 
represented the Louisiana Crawfish Producers Association that 
begged our environmental law clinic to sue to get critical 
habitat for the Louisiana black bear to protect their 
livelihoods by protecting the Atchafalaya Basin, and so that is 
an example, as Mr. Leshy said, where it is not jobs versus 
species. It is jobs versus jobs. The bear could affect some 
jobs in the timber industry, but it was going to support jobs 
in the crawfish industry. So these things are not cut or dried 
either way.
    Dr. Fleming. OK. While I have you, how many lawyers are in 
your organization?
    Mr. Tutchton. Three including myself.
    Dr. Fleming. OK. And besides suing the Federal government 
in various Federal courts, appellate courts, et cetera, what 
other work do you and your colleagues engage in?
    Mr. Tutchton. Just the lawyers or the entire organization?
    Dr. Fleming. Well, in terms of litigation, yes.
    Mr. Tutchton. We do sue the Federal government quite a bit. 
We sue Interior, Agriculture, EPA, National Marine Fisheries 
Service. We have sued private defendants, public utilities, 
coal-fired power plants, people who pollute rivers, sewers, the 
discharge of raw sewage.
    Dr. Fleming. OK. And one final question. I am running out 
of time. Do you believe the public has a right to know how much 
taxpayer money is paid to your organization each year?
    Mr. Tutchton. Yes, I do.
    Dr. Fleming. Can you give us that amount?
    Mr. Tutchton. In terms of attorneys' fees, last year it was 
$163,000. In terms of grants from Federal agencies, it was 
approximately $600,000, primarily to restore streams by 
planting trees.
    Dr. Fleming. OK, thank you. I yield back.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from Michigan, Mr. Kildee.
    Mr. Kildee. Thank you, Mr. Chairman.
    Mr. Leshy, you have had the opportunity to work with the 
Endangered Species Act on both the side of the government and 
as a private citizen. This hearing today has focused on 
litigation, but it also merits a discussion on the Act itself. 
What would be the effect on endangered and threatened species 
if the Endangered Species Act was never enacted or was 
completely abolished? And to get to the point of this hearing, 
in your opinion, is there any other mechanism that could 
reasonably replace the citizen suit provision of the Act and 
continue to be effective to the same degree, Mr. Leshy?
    Mr. Leshy. Well, first of all, thank you, Mr. Kildee. If 
the Endangered Species Act were repealed, I think we would have 
quite a lot more extinctions. I think we would do a much worse 
job of managing natural resources. The Edwards Aquifer, for 
example, I think would be in a lot more peril and the people 
who depend upon the Edwards if the Endangered Species Act were 
repealed.
    I don't think the problem would go away. Many states have 
Endangered Species Act. California actually has one that is in 
some respects tougher than the Federal law, so there would be a 
state safety net in some places but not in all, and so I think 
it would be really a terrible mistake to repeal the Endangered 
Species Act.
    It passed this Congress in 1973 with almost no dissenting 
votes, and when President Nixon signed it into law he said 
nothing is more priceless or worthy of preservation than the 
rich array of life on earth. This was a tremendously popular 
Act and I think it really does touch something deep in the core 
of the American populace and I hope that it remains in place.
    In terms of the litigation tool, the Endangered Species Act 
is not unique in having a citizen suit provision and it is 
certainly not unique to have lawsuits filed against the 
government for failing to live up to laws. We have had that 
tool in place in this country virtually since the founding of 
the republic, and it is I think a useful tool. It is a tool 
that basically holds the government accountable, and it is 
really a tool that frankly serves the congressional interests, 
which is why I think Congress tends to put citizen suits in 
these acts. It is because it is a way for Congress to control 
the Executive Branch, to basically tell the courts help us make 
sure the Executive Branch complies with the law. That is 
exactly what citizen suits are supposed to do, and they provide 
equal access to the courts for anybody who thinks the 
government is not doing its job.
    And so, when a court orders the Executive Branch in one of 
these lawsuits to comply with the Endangered Species Act, the 
court is basically saying Congress has told you to do certain 
things and you are not doing them, we are going to help the 
Congress to see that these laws are carried out. So I think 
that is why citizen suits have actually remained I think 
relatively popular.
    Sure, in individual examples, they can create controversy 
and that sort of thing, but on the whole I think they have been 
a part of the American tradition for a long time, using the 
courts as an independent sounding board to hold the government 
accountable.
    Mr. Kildee. Thank you very much.
    You know, back in 1973, it was generally considered an 
honorable, decent, appropriate, proper, progressive thing to 
assure that the endangered species would be less endangered. 
Now the country is so divided and this Congress is so divided 
you think that you had committed some mortal sin or something 
if you take one side or the other.
    Would it be possible for you and Mr. Middleton and some of 
your colleagues to get together for say a couple months and 
agree on something that might satisfy your perception of the 
needs of protecting or looking at the endangered species? 
Either one of you may answer.
    Mr. Middleton. Well, I appreciate the question and, you 
know, we at Pacific Legal Foundation are certainly willing to 
work with others, including environmentalists, to get to the 
right approach. I think one of the real problems is there is a 
notion that has been advanced today that this litigation 
controversy is really nothing more than jobs versus jobs, and I 
think that is a laughable talking point. You know, I sympathize 
with people like the salmon fishermen in California or the 
folks in Louisiana that Mr. Tutchton represented, but the 
reality is when they engage environmentalists to represent them 
in litigation those environmentalists use the Endangered 
Species Act to dictate whatever the cost that ESA must be 
imposed. That is a stacked deck in their favor, and that I 
think is really why we have gotten to this point where we are 
today.
    The Chairman. The time of the gentleman has expired.
    Mr. Kildee. Thank you, Mr. Chairman.
    The Chairman. The Chair recognizes the gentleman from 
California, Mr. McClintock.
    Mr. McClintock. Thank you, Mr. Chairman.
    To continue on that very line of questioning, there seems 
to be a lack of reasonableness in the application of these 
laws. We all support the Endangered Species Act and its 
objectives. Nobody wants to see any species go extinct, 
particularly when it can be saved. But like most movements I 
think the environmental movement arose over legitimate concerns 
over the quality of our environment, but like most movements, 
once it had achieved its legitimate goals, it began to attract 
a self-interested and self-serving constituency that has taken 
us from legitimate and sensible measures to the realm of 
political extremism and outright plunder, and I think that is 
what this hearing is about.
    The Chairman raised the issue earlier about the importance 
of captive breeding. I represent a portion of the Klamath 
Valley in northern California where the ESA is being used to 
justify the destruction of four perfectly good hydroelectric 
dams on the Klamath River because of what they describe as a 
catastrophic decline in salmon population. I asked how many 
salmon are we talking about? Oh, just a few hundred left. I 
then asked, well, why doesn't somebody build a fish hatchery? 
And the answer is we have a fish hatchery at the Iron Gate Dam. 
That hatchery produces 5 million salmon smolts every year, 
17,000 of those smolts return as fully grown adults to spawn in 
the Klamath every year, but they won't let us include them in 
the ESA count, and to add insult to insanity, when they tear 
down the Iron Gate Dam the Iron Gate Fish Hatchery goes with 
it, and then we do have a catastrophic decline of the salmon 
population.
    Mr. Middleton, why don't we include hatchery fish in these 
population counts? Why don't we recognize the importance of 
captive breeding? The Chairman pointed out the buffalo were 
brought back from the brink of absolute extinction because of 
captive breeding. California condor today, the African 
elephant, why don't we include such a simple cost-effective and 
productive method of restoring these populations?
    Mr. Middleton. Right, and I think they should be included 
in the counts, and what it shows is that oftentimes alternative 
approaches to recovering species are put aside, and the answer 
seems to be in many circumstances to restrict development or to 
restrict energy use, and that I think leads to a 
counterproductive discussion because the people who are 
actually burdened by those restrictions really have no place at 
the table. And if we were able to offer alternative approaches 
that could satisfy both environmental concerns and natural 
resource users, I think that would be the better approach.
    Mr. McClintock. And to what extent are we confusing natural 
phenomenon with manmade phenomenon? For example, the salmon in 
the Pacific Northwest coast, California, Oregon, Washington, we 
have watched a decline in salmon runs over the past decade as 
the same salmon runs in Alaska have absolutely exploded under 
exactly the same Federal regulations. The question is what is 
going on there. Well, it turns out there is a phenomenon called 
the Pacific decadal oscillation, which is a 10-year cycle of 
cold water currents that for the past 10 years has been 
favoring Alaskan waters and has now shifted back toward the 
Pacific Northwest. As the Chairman pointed out, we are now 
seeing dramatically increased salmon runs in the Pacific 
Northwest following that cold water current just as we are 
watching significant declines in Alaskan waters, and yet we 
find that that is somehow justification for massive regulations 
that are shutting down entire sectors of our economy.
    To what extent are we distorting or are we confusing 
natural processes with man-caused phenomenon?
    Mr. Middleton. I think there is a great extent of that, and 
what oftentimes happens is human activity is scapegoated as the 
primary cause for species decline when in reality there are a 
variety of circumstances that should be examined. So, for 
example, with the Delta smelt litigation the environmentalists 
have really been pressing to get these pumps shut off in 
California, and it is true, you know, certain times when the 
Delta smelt go through the pumps they are killed, but that in 
no way includes the other factors that go into the species 
concerned.
    Mr. McClintock. Couldn't the Delta smelt be brought back by 
captive breeding?
    Mr. Middleton. It is possible that it could.
    Mr. McClintock. Building a fish hatchery would be a 
fraction of the cost and far more productive than all the 
costly measures that are currently being imposed by 
misapplication of the ESA. You ask somebody in the 
environmental left, well, why don't you include these fish in 
the count, they say, well, they are just not the same. And you 
say, well, what is the genetic difference? Well, there is none. 
The biologists I have talked to have pointed out that the 
difference between a fish born in a hatchery and a fish born in 
the wild is the same difference as a baby born at a hospital 
and a baby born at home. And to the extent that you are 
increasing the genetic diversity of the gene pool you are 
giving more and more variations for the forces of natural 
selection to work. It seems to me that it is a sensible 
approach and yet it is one that the ESA is being used to 
totally obstruct.
    Mr. Middleton. That is my understanding as well, and I do 
think that there really is a problem when it comes to the 
Endangered Species Act in terms of looking at alternative 
approaches rather than simply scapegoating human activity.
    The Chairman. The time of the gentleman has expired. The 
gentleman from the Northern Marianas, Mr. Sablan.
    Mr. Sablan. Thank you very much. First, I would like to 
associate myself with the earlier comments from my colleague 
from Guam. I am from the Northern Mariana Islands, one of the 
territories on the Islands. Let me also say that I think nobody 
said the administration of ESA was going to be easy, but I also 
think it is because of many of the difficulties that has made 
it successful by preventing extinction and setting species on a 
path to recovery.
    But, Mr. Leshy, I have a little confusion because Mr. 
Middleton earlier made a distinction between his organization's 
work on civil rights and environmental issues. Does the Equal 
Access to Justice Act distinguish the types of litigation, or 
is it a mechanism to ensure that individuals and small 
businesses can have their voices heard when they feel like they 
have been wronged by their government?
    Mr. Leshy. The latter, sir. It applies across a broad array 
of Federal programs, not just environment. In fact, I think the 
environmental recovery fees and environmental actions is 
actually a small proportion of it.
    Mr. Sablan. So that means trade associations, small 
businesses and other types of nonprofits can and have recovered 
fees using the Equal Access to Justice Act and the judgment 
fund.
    Mr. Leshy. Yes.
    Mr. Sablan. Thank you. Mr. Suckling, let me because you are 
not a scientist, but do you employ scientists in your 
organization? I'm assuming because----
    Mr. Suckling. Yes, I do, sir.
    Mr. Sablan.--you said biological diversity. How many 
scientists do you have in your organization?
    Mr. Suckling. We have approximately 25 scientists on staff.
    Mr. Sablan. So when you made the statement earlier stating 
the science you have people who can back this?
    Mr. Suckling. Absolutely, yes.
    Mr. Sablan. I just wanted to make that clear.
    And, Mr. Suckling, what percentage of ESA lawsuits that 
your organization, what percentage do you win?
    Mr. Suckling. We win 93 percent, sir.
    Mr. Sablan. And what are some of these lawsuits?
    Mr. Suckling. Many of them are to speed up the listing 
process for species that are not yet protected but should be 
put onto the list. Other suits are to get specific habitat 
areas mapped out and protected for them. Another group of suits 
we do is to get recovery plans for those species. One of the 
reasons why we tend to focus on those three kinds of suits is 
there have been numerous scientific studies that have been done 
that have said species are more likely to recover the earlier 
they are listed and the longer they are listed. They are more 
likely to recover if they have critical habitat areas. They are 
more likely to recover if they have recovery plans. So we tend 
to target our suits toward those things we know recover 
species.
    Mr. Sablan. Thank you. I don't want you to get me wrong 
here because we have our own issues, you know, with our 
government, especially in the application of the law in the 
Northern Marianas, but let me ask this to you, Mr. Tutchton. 
Did I say that right, sir?
    Mr. Tutchton. Tutchton.
    Mr. Sablan. Tutchton, yes, sir, and also Mr. Suckling 
maybe. There are some who believe that the ability to recover 
attorneys' fees from the judgment fund and under the Equal 
Access to Justice Act fund acts as an incentive for groups to 
continue to bring lawsuits or litigation against Federal 
agencies. Do you believe this is the case?
    Mr. Tutchton. No, I don't. The folks I represent feel 
compelled to protect these species from a sense of moral 
obligation and a sense of turning over the future in a better 
condition to their descendants, and so they would do this 
regardless of where the money came from.
    Mr. Suckling. And if I may answer. There was actual a study 
put out this year in the Journal of Forestry which looked at 
all Equal Access to Justice Act payments, and one of the 
questions it asked is are these providing an incentive for more 
litigation. They concluded that it was not the case.
    For my group, we can look at the numbers and see. I have a 
budget of approximately $8 million. Last year I received $7,500 
from the Equal Access to Justice Act. In the year before, my 
budget was about $7 million. Again I received $7,500 from the 
Equal Access to Justice Act. So the numbers are minuscule. They 
are just minuscule, one-tenth of 1 percent of my budget. They 
are not an incentive to do anything.
    Mr. Sablan. Thank you. I have one last question. Mr. 
Tutchton, I was reading with some interest Ms. Karen Budd-
Falen's testimony. Do you have any comments on her analysis of 
the Equal Access to Justice Act and the Endangered Species Act 
specifically, specifically that plaintiffs can recover legal 
fees under the Equal Access to Justice Act even if they lose?
    Mr. Tutchton. Yes, I have a few comments very briefly. 
Plaintiffs cannot recover attorneys' fees if they lose 
outright. Plaintiffs can recover attorneys' fees in a 
settlement where the Federal government capitulates because it 
did not feel it had reasonable grounds upon which to continue 
the litigation. Those settlements actually save the Federal 
government money because if they had continued to fight the 
case and they eventually lost anyway, they would have owed more 
for dragging out the litigation, so they are a prudent response 
when the Federal government's position is substantially 
unjustified.
    The Chairman. The time of the gentleman has expired.
    Mr. Sablan. Thank you.
    The Chairman. The gentleman from Arizona, Mr. Gosar.
    Dr. Gosar. Mr. Suckling, I am going to quote to you and I 
just want to make sure that you agree or disagree with this 
quote of yours: ``Yes, we are destroying a way of life that 
goes back 100 years, but it is a way of life that is one of the 
most destructive in our country. Ranching is one of the most 
nihilistic lifestyles that the planet has ever seen. It should 
end. Good riddance.''
    Do you agree with that statement?
    Mr. Suckling. I do not. I was caught up in the rhetorical 
heat of the moment, sir.
    Dr. Gosar. How would you say that you changed? Is it 
something that you can work with ranchers?
    Mr. Suckling. We do work with ranchers on occasion, yes, 
sir.
    Dr. Gosar. OK. Let me ask you another question. Give me a 
grade A through F, typically like we see in school, in regard 
to our forest health, especially in Arizona? Can you give me a 
grade?
    Mr. Suckling. It is down around D, approaching F.
    Dr. Gosar. How about let us say F?
    Mr. Suckling. OK.
    Dr. Gosar. I agree. We have problems.
    Mr. Suckling. We have real problems, yes, sir.
    Dr. Gosar. Thank you. I know you are a supporter of the 
``Four Forest Restoration Initiative (4FRI)'', OK, and this is 
very important to us because as scientists, and I am a dentist 
and we have to acknowledge successes and failures, right?
    Mr. Suckling. Yes.
    Dr. Gosar. OK. Well, in the recent Wallow fire experience 
we lost over half of the spotted owl nests. Tell me who won in 
that interchange.
    Mr. Suckling. Well, I have to disagree that we lost over 
half of the owl territories.
    Dr. Gosar. Wait a minute, no, no, no. What they have said 
according to--I mean, this is to the science that said over 
half of the nesting sites in the State of Arizona were lost in 
the Wallow fire, I mean statistically. Do you disagree with 
those?
    Mr. Suckling. The fire burned through areas with half the 
nests, correct. However, spotted owls are known to come back 
and nest in burned areas. So, in terms of what is the impact on 
the spotted owl, we do not know yet, but----
    Dr. Gosar. It was huge. I mean, the numbers----
    Mr. Suckling. Well, we do not know yet if the owls are 
going to return and how many will nest there. My prediction is 
there will be a decrease in owls. It will not nearly be a 50 
percent decrease.
    Dr. Gosar. But that is speculative.
    Mr. Suckling. Excuse me?
    Dr. Gosar. That is still speculative.
    Mr. Suckling. Well, it is based on what we know how spotted 
owls live in fire areas and many forests.
    Dr. Gosar. I like owls too, but it is speculative, OK? My 
whole point is that regardless of what happened with our 
forests before, what we have to do is go forward in a process 
that we don't have this happen again, not just to the people of 
Springerville and the eastern Arizona, the Apaches, but we need 
to have some standardization on how we look at our forests. 
Would you agree?
    Mr. Suckling. Yes, sir.
    Dr. Gosar. Do you think that delays actually have a cost on 
industry?
    Mr. Suckling. Delays of what?
    Dr. Gosar. Like saying 30 days or 60 days or 90 days delays 
with injunctions when we are talking about forest thinning?
    Mr. Suckling. No, 30, 60, 90 days have very little effect, 
sir.
    Dr. Gosar. They have no effect?
    Mr. Suckling. Very little effect, yes.
    Dr. Gosar. Oh, I disagree because there is always a cost 
for a delay because if you are going through a thinning process 
and you could actually in those 90 days take care of let us say 
200 acres, it is 200 acres that less would burn, wouldn't you 
say?
    Mr. Suckling. The planning of a timber sale is typically 
two to three years in length, so delaying 30 days at the end, 
no, it's inconsequential.
    Dr. Gosar. OK, so let me ask you, so you want to be more 
efficient, right?
    Mr. Suckling. Yes, sir.
    Dr. Gosar. So you would be a proponent to start at looking 
at wide swaths proactively before the bid process in ``4FRI'', 
particularly in Arizona so that we could have no further 
delays? Would you agree to that?
    Mr. Suckling. I am not exactly sure how to answer.
    Dr. Gosar. I want the environment, I want to see your group 
being part of the solution process for the forests. Would you 
agree?
    Mr. Suckling. Well, we very much are a part, as you know.
    Dr. Gosar. But I also----
    Mr. Suckling. The ``4FRI'' agreement is one that the Center 
has been advocating.
    Dr. Gosar. I understand, but I also want a template on how 
we actually do that so that we don't have the consequences of 
this fire again.
    Mr. Suckling. Absolutely, and we have prepared a template 
for the issues that we are concerned about.
    Dr. Gosar. And you are going to be prepared so that when 
this contract is awarded then we would go forward with that? 
Yes or no.
    Mr. Suckling. We can go forward with a contract if it obeys 
the laws, not if it violates the laws.
    Dr. Gosar. The status that I am here is working with 
people, working with industry. Are you prepared to work with 
industry?
    Mr. Suckling. We work with both the industry and with the 
U.S. Forest Service.
    Dr. Gosar. OK. I have one last question. Ms. Karen Budd-
Falen, last year the Center for Biological Diversity was forced 
to pay the Chilton family of Arizona over $600,000 in damages 
relating to false claims against a ranching family. The Chilton 
family took on the Center for Biological Diversity after the 
organization accused them of poor ranch management that would 
impact different courts, but the CBD kept on appealing. The 
Western Farm Press indicated that CBD contemplated appealing to 
the Supreme Court. The Center for Biological Diversity said it 
would drop the appeal if the Chiltons paid them $35,000 for 
settling the case. They said no. Sadly, however, the Chiltons 
paid more in legal fees than they collected, but they still 
won. Is this kind of intimidation, is this common?
    Ms. Budd-Falen. In my personal experience, I believe this 
kind of intimidation is common. It is very painful for a 
producer, particularly the livestock industry, to have to have 
a project delayed 30 days or 60 days, or a lot of times we see 
groups coming into court and saying you can't turn out your 
cattle for another 30 days or 60 days because of an 
administrative appeal based on a term permit renewal. That is 
real money to real families, and that kind of intimidation is 
very, very difficult to deal with both financially when they 
have to hire me to intervene in the case as well as mentally 
and personally when your entire livelihood is on the line.
    Dr. Gosar. I believe in common sense, but this is 
extortion. It is a form of extortion, and we need some common 
sense solutions all the way across the board. Thank you very 
much.
    The Chairman. The time of the gentleman has expired. The 
gentleman from Texas, Mr. Flores.
    Mr. Flores. Thank you, Mr. Chairman. Mr. Chairman, thank 
you for calling this oversight hearing, and I want to remind 
everybody it is an oversight hearing, and I haven't heard 
anybody in the conversations today advocate doing away with 
ESA. But in connection with any oversight hearing, it is good 
government to try to look at the laws that are passed and to 
make sure they are being properly administered and interpreted, 
and so I am glad we are doing that today.
    Let me go into some other things. First of all, Mr. Leshy, 
your comments regarding Texas management of water rights are 
incorrect. I would suggest you go ahead and get updated as to 
where we are. We have some very protected water rights that 
even in some cases unfortunately trump private property rights, 
so I would encourage you to go get up to speed on that.
    I keep hearing this jobs versus jobs comment. I am a little 
troubled by that. Mr. Middleton, how many jobs were lost over 
the Delta smelt?
    Mr. Middleton. Well, I think the latest figures----
    Mr. Flores. Just quick answers for everyone.
    Mr. Middleton. Quick answer is several thousand.
    Mr. Flores. OK. And then were any new jobs created as a 
result of that? Did we just magically create several thousand 
new jobs to offset those jobs?
    Mr. Middleton. No.
    Mr. Flores. OK. I didn't think so. Same thing for you, Mr. 
Miller. Your project could have created some jobs, but I guess 
it didn't. How many jobs have you estimated were lost because 
of the aggressive use of ESA?
    Mr. Miller. We anticipated 250 to 300 during a six-to-nine-
month period of construction and then after that eight to nine 
permanent positions.
    Mr. Flores. OK. And did some other jobs magically appear 
when your project got inhibited?
    Mr. Miller. We just terminated it, so no, not at this 
point.
    Mr. Flores. OK. So it is not a job versus job. These are 
real jobs by humans, and somewhere down the road I would like 
to see us talk about not only enhancing the use of the best 
scientific and commercial data in the ESA to also looking at 
the benefit of the physical and sociological and economic 
health of the human species. I think that would be an important 
change to look at.
    Now to my questions. Ms. Budd-Falen, one of the questions 
you were asked was about improvements that we could make to the 
ESA and one of them you said had to do with the listing timing 
I think. Any others just in a few seconds that you could list 
off, any improvements to the ESA?
    Ms. Budd-Falen. I think one great improvement would be 
using incentives to protect landowners and ranch owners to give 
them a benefit to having endangered species on their property 
rather than having endangered species on their private property 
seen as a detriment simply because they will be regulated to 
death.
    Mr. Flores. OK. Anything else?
    Ms. Budd-Falen. I would like to see changes in the way the 
timeframes are issued or in limiting the number of petitions. 
When you have the Center for Biological Diversity boasting that 
it is going to present 1,000 listing petitions in a year, there 
is no way the Fish and Wildlife Service can deal with those in 
90 days or a year.
    Mr. Flores. OK. Could I request you to submit your 
recommendations in writing following this hearing?
    Ms. Budd-Falen. Absolutely.
    Mr. Flores. OK, so we can look at those.
    One of the other subjects that has come up is the Equal 
Access to Justice Act. What improvements can we make to that 
law? I am pretty sure we don't have jurisdiction over that, but 
I would like to know what those are so that we can look at this 
too.
    Ms. Budd-Falen. Actually the discussion today has not been 
exactly correct on attorneys' fees litigating under the ESA. 
Most of the attorneys' fees we are talking about for citizen 
suit provisions, whether it is a listing challenge or a 
critical habitat challenge, come from the judgment fund. The 
judgment fund only requires ``prevailing parties''. It doesn't 
have anything to do with whether the government was 
substantially justified. It doesn't have any of the other 
protections in the Equal Access to Justice Act. The judgment 
fund is a permanently continuing appropriation from the 
Congress and money checks are just written from it.
    Mr. Flores. Could I ask you to submit your recommendations 
on how that ought to be administered as well?
    Ms. Budd-Falen. Yes, I would be happy to.
    Mr. Flores. OK. All right. That would be great.
    And then, Mr. Middleton, any comments that you may have in 
terms of improvements to ESA or the use of government funds for 
litigation?
    Mr. Middleton. Well, I would agree with the comments that 
have just been submitted. One other way that Congress may wish 
to address this issue is through making it more difficult to 
bring lawsuits in the first place. The Endangered Species Act, 
as has been recognized by Justice Scalia, ``Its citizens 
supervision is an authorization of remarkable breadth when 
compared with the language Congress ordinarily uses.''
    So, if you look at statutes like the Clean Water Act, the 
Surface Mining and Control and Reclamation Act, those statutes 
and provisions make it more difficult I think to bring 
lawsuits, and that may be one way to do that.
    Mr. Flores. OK. Thank you all for your time today. I yield 
back.
    The Chairman. The time of the gentleman has expired. The 
gentleman from California, Mr. Costa.
    Mr. Costa. Thank you very much, Mr. Chairman.
    I know that we covered a number of the issues while I was 
gone on the situation involving the Sacramento-San Joaquin 
Delta area and the biological opinions. I guess Mr., is it 
Middleton, who else considers themselves to have some expertise 
in that area? OK, Mr. Suckling.
    After the two recent court decisions this year do you agree 
whether or not the--as some of us have suggested--that the two 
biological opinions on salmonid and smelt should be combined as 
they go back and attempt to address the rulings of the court? 
Mr. Middleton?
    Mr. Middleton. I think that is one way of possibly looking 
at that, yes. I mean, in terms of combining the biological 
opinions, I do know that there have been ongoing discussions in 
terms of that, but it would be I think a more efficient way in 
terms of addressing species concerns rather than spending much 
time on each particular biological opinion.
    Mr. Costa. Especially when a lot of the conclusions seem to 
be in conflict from various outside scientific panels, whether 
it be the National Academy of Sciences or other workshops that 
have taken place at the California Water Institute at Fresno 
State.
    Mr. Suckling, what is your view on that?
    Mr. Suckling. Yes, I am not sure if in the future we do 
them separately or bring them together. I am not sure what 
changes there are.
    Mr. Costa. All right, you are not sure. OK.
    Who here is familiar with the--the Chairman indicated the 
issue with regard to the Columbia River and the challenges they 
have had on the biological opinion. Who is the expert here on 
the panel on that? Mr. Suckling again.
    How many years has it taken to reset the various biological 
opinions on the Columbia River?
    Mr. Suckling. They have been continually sent back over a 
period of 10 years.
    Mr. Costa. That is what I understand. I also have been 
told, I do not know if you would concur with this, that over $2 
billion has been spent in attempting to reset these biological 
opinions.
    Mr. Suckling. I don't have the exact number. It would not 
surprise me if it was that much. They keep getting it wrong and 
it costs money to go back and try to get it right the next 
time.
    The Chairman. Will the gentleman yield?
    Mr. Costa. Yes, I will yield.
    The Chairman. It is in excess of billions of dollars when 
you put it all together.
    Mr. Costa. Yes, and in the Columbia case they have a lot of 
water comparatively to the Sacramento-San Joaquin system, and 
they have money, i.e., WAPA, to fund these continuation to try 
to get it right, which I think one of the thing that frustrates 
me to no end is the lack of a comparative analogy between 
different efforts on different water systems in the west. It 
seems like every time we are trying to reinvent the wheel, and 
for most of the scientists I listen to it just does not make a 
lot of sense, especially when you take into account, as Mr. 
McClintock suggested, the outside factors that also impact the 
fisheries in these instances, and they seem to be left on the 
sideline as we are attempting to deal with this.
    Mr. Suckling, your organization filed what some say is the 
mother of all Endangered Species Act lawsuits against the EPA 
with regard to pesticides, not just for one species but over 
200, is that correct?
    Mr. Suckling. Yes, sir.
    Mr. Costa. Over 400 active ingredients, more than 27,000 
pesticide combinations for consultations. What was the strategy 
or the agenda on this lawsuit as it relates to harm of any 
species or active ingredients?
    Mr. Suckling. Pesticide applications particularly as it is 
directly into waterways or working its way into the waterways.
    Mr. Costa. And how much do you think it will cost the 
taxpayers to perform all of these consultations? How long do 
you think it will take?
    Mr. Suckling. I don't think it will be much expense to the 
taxpayer at all in the consultation. I think that if certain of 
these pesticides are either limited in their use or taken off 
the market there could be some cost to the pesticide 
manufacturers.
    Mr. Costa. Do you believe in a notion of no risk? On risk 
assessment, risk management, is your goal zero risk?
    Mr. Suckling. No, sir. You can never get to zero risk.
    Mr. Costa. So it has been extended, my understanding, the 
lawsuit, to 2012. When do you expect the case to be settled?
    Mr. Suckling. I don't know if it will settle at all. We are 
in ongoing discussions.
    Mr. Costa. Are you seeking buffer zones?
    Mr. Suckling. Excuse me?
    Mr. Costa. Are you seeking buffer zones on restriction of 
affected use?
    Mr. Suckling. Well, if I were able to say how I think this 
should resolve ultimately, I think for some pesticides buffer 
zones should work. I think for other pesticides such as 
Atrazine----
    Mr. Costa. Are you seeking a ban or a restriction on 
restricted materials?
    Mr. Suckling. Some as a buffer, some should be banned.
    Mr. Costa. And do you have any idea of the consequences or 
the cost to America's food supply or food security?
    Mr. Suckling. I don't believe it would jeopardize America's 
food security at all, sir.
    The Chairman. The time of the gentleman has expired except 
under that logical extension there will be less farmers growing 
food it would seem to me.
    Mr. Costa. Well, obviously the witness and I disagree on 
the impacts.
    The Chairman. Yes.
    Mr. Costa. Because I think it would have an effect.
    The Chairman. I think it would too.
    Mr. Costa. And I think we need to look at this carefully. 
Mr. Chairman, I thank you for taking the time to do this and 
look forward to working with you on this effort.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from Colorado, Mr. Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman, and thank you for 
having this hearing.
    Mr. Suckling, I have a couple questions for you. Your 
annual report for 2010 states, ``Where humans multiply 
extinction follows. The fact is as human numbers approach the 7 
billion mark in 2011 the planet cannot continue to sustain both 
an exponentially growing human population and the healthy 
abundance of other species. We need to keep our world livable 
for decades. Until the Center stepped into the discussion the 
environmental community has retreated from what it perceives to 
be the touchy politics of the overpopulation problem.''
    Mr. Suckling. Yes.
    Mr. Lamborn. And you also put out a newsletter supporting 
policies that limit human population. Do you believe human zero 
population growth or even a reduction in the number of human 
beings would be an effective way of protecting thousands of 
species that you are working on behalf of?
    Mr. Suckling. I do think that as we are eating up more and 
more land with development for more and more humans there is 
less and less space. So I do think, yes, human overpopulation 
is a significant environmental problem.
    Mr. Lamborn. OK. Changing the subject, what do you think 
about efforts by states such as Colorado to breed endangered 
species under controlled conditions and then releasing them 
into the wild?
    Mr. Suckling. Captive breeding programs have been a very 
important and long-term part of an industry's conservation, so 
they are generally good, sir.
    Mr. Lamborn. So you don't have any problem with that?
    Mr. Suckling. Well, it depends what the program is, but it 
is a well-known common tool that is used all the time to 
helpful purposes, yes.
    Mr. Lamborn. OK. Well, I am glad to hear that. Does anyone 
else here have a problem with that type of program?
    Mr. Suckling. If you want, I could address the genetic fish 
issue, which is different.
    Mr. Lamborn. No. If I had more than five minutes, I would.
    OK. And then would you agree with me--changing subjects 
entirely--that sometimes the classification of a species as a 
distinct species as opposed to a subspecies is a political 
decision rather than a scientific decision?
    Mr. Suckling. No, sir, I do not.
    Mr. Lamborn. Are you familiar with the Preble's Meadow 
jumping mouse----
    Mr. Suckling. Yes, I am.
    Mr. Lamborn.--versus the Bear Meadow jumping mouse, Bear 
Lodge?
    Mr. Suckling. I am, sir.
    Mr. Lamborn. And the irony is that Wyoming fought the 
decision more vociferously than Colorado, so as you go north in 
Colorado you hit the Wyoming state line, and all of a sudden 
that species is no longer threatened. It is threatened one foot 
south of the state line, one mile south, but one mile north it 
is not threatened. To me, that is a political decision.
    Mr. Suckling. That is a political decision and it is one I 
believe that will soon be erased.
    Mr. Lamborn. Oh, can you elaborate on that?
    Mr. Suckling. Yes. First I should say that decision was not 
based on a difference of the species. It was based on a policy 
that said we can choose to protect a species in one place, 
Colorado, but not another, Wyoming, so it really wasn't really 
a taxonomic issue, that policy.
    Mr. Lamborn. What is this controversy over the taxonomy of 
that?
    Mr. Suckling. It was studied by scientists broadly and they 
broadly agreed with the taxonomy of it.
    Mr. Lamborn. No, no, the science was divided on that. There 
was no consensus.
    Mr. Suckling. There was a single scientist who opposed it 
whose results were studied by the National Academy of Sciences 
and found to be lacking, so I think the science is clear on 
that.
    Mr. Lamborn. I would disagree on that, but please continue 
with what you were saying.
    Mr. Suckling. Yes. So the point there is there was a policy 
decision that said we can choose to protect in some area, not 
other areas. That is what you are looking at with the 
difference between Wyoming and Colorado. That policy has been 
withdrawn by the U.S. Fish and Wildlife Service. It is no 
longer being used. And I think with that happening I suspect 
that the Preble's Meadow mouse will be reviewed without that 
policy and will likely be listed throughout its range. That is 
my personal opinion. Fish and Wildlife Service will have to 
make its decision.
    Mr. Lamborn. As opposed to being delisted throughout its 
range.
    Mr. Suckling. Oh, absolutely. It is a very imperiled 
species. I see no threat of it being delisted.
    Mr. Lamborn. What if it is actually just a subspecies of 
the Bear Lodge Meadow jumping mouse?
    Mr. Suckling. It is not, sir. It has been well studied.
    Mr. Lamborn. I totally disagree with you on that.
    Mr. Suckling. I understand, sir.
    Mr. Lamborn. Do you see any irony in the fact that 
sometimes a species is threatened inside the United States, we 
talked about states having these arbitrary borders, what I 
consider arbitrary, but international borders can be the same 
way. The polar bear, the spotted lynx, they are thriving in 
Canada but not in the U.S. In fact, maybe sometimes these are 
marginal populations. I am thinking the farther south you go 
the less established they ever were no matter how far back you 
go, but to reintroduce them in the marginal areas is the goal 
of some people or shutting down development in those areas may 
be the goal of some people, and yet the farther north you go, 
especially when you cross into Canada, these same species are 
thriving. Do you see any inconsistency there?
    Mr. Suckling. Most of the declining populations of polar 
bears are in Canada. Polar bears are really not thriving in 
Canada, so I don't see a problem there.
    Mr. Lamborn. Or the spotted lynx?
    Mr. Suckling. However, let us assume an example of a 
species that is somewhere out, let us take that example. I 
think that we Americans want the responsibility to protect 
wildlife in our nation, and I think that we would be greatly 
harming to generations if we said we are going to drive the 
wolf extinct in America because it is doing well in Canada.
    Mr. Lamborn. But isn't the purpose----
    Mr. Suckling. That would not be looked well upon.
    The Chairman. The time of the gentleman has expired.
    Mr. Lamborn. Can I follow up with written questions for the 
record?
    The Chairman. Absolutely. I was going to make that 
announcement afterwards because I have several questions here 
that have come up that I want to follow up on. I know the time 
constraints. We want to give everyone an opportunity.
    Mr. Lamborn. Thank you.
    The Chairman. The Chair recognizes the gentleman from 
Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman, and appreciate the 
witnesses all being here today. It looks like most of the 
witnesses haven't been talking all that much, but there was an 
article published in High Country News yesterday by Ted 
Williams, and I think it bears consideration. This is Ted 
Williams, ``It has taken me decades to be recognized as an 
environmental extremist. My attack on Alaska Republican 
Representative Don Young and National Rifle Association board 
member in Sierra Magazine fomented a mass exodus from Outdoor 
Riders Association of America, including 79 members and 22 
supporting organizations. I serve on two foundations that award 
major grants to groups defending wildland from developers and I 
ride a muckraking column for Audubon called Insight. Actually I 
am an extremist only as defined by people who perceive fish and 
wildlife as basically in the way. For those folks all 
environmentalists are extremists. But radical green groups do 
exist, and they are engaged in an industry whose waste products 
are fish and wildlife. You and I are a major source of revenue 
for that industry. The Interior Department must respond within 
90 days to petitions to list species under the Endangered 
Species Act. Otherwise petitioners like the Center for 
Biological Diversity get to sue and collect attorneys' fees 
from the Justice Department. The Center also shakes down 
taxpayers directly from Interior Department funds under the 
Equal Access to Justice Act and from missed deadlines when the 
agency can't keep up with the broad side of Freedom of 
Information Act requests. The Center for Biological Diversity 
has two imitators: WildEarth Guardians and Western Watersheds 
Projects. Kieran Suckling, who directs and helped found the 
Tucson, Arizona, based center, boasts that he engages in 
psychological warfare by causing stress to already stressed 
public servants. 'They feel like their careers are being mocked 
and destroyed and they are', he told High Country News, 'so 
they become much more willing to play by our rules.'
    ``Those rules include bending the truth like pretzel dough. 
For example, after the Center posted photos on its website 
depicting what it claimed was Arizona Rancher Jim Chilton's cow 
denuded grazing allotment Chilton sued. When Chilton produced 
evidence the photos showed a campsite and a parking lot the 
court awarded him $600,000 in damages. Apparently this was the 
first successful libel suit against an environmental group, yet 
the case went virtually ignored by the media. 'Ranching should 
end', proclaimed Suckling, 'good riddance', but the only 
problem with ranching is that it is not always done right, and 
even when it is done wrong it saves land from development.
    ``Amos Eno runs the hugely successful Yarmouth, Maine, 
based Resources First Foundation, an outfit that among other 
things assists ranchers who want to restore native ecosystems. 
Earlier he worked at the Interior's endangered species office 
crafting amendments to strengthen the law, then went on to 
direct the National Fish and Wildlife Foundation. Eno figures 
the feds could 'recover and delist three dozen species' with 
the resources they spend responding to the Center for 
Biological Diversity's litigation. A senior Obama official had 
this to say: 'CBD has probably sued Interior more than all 
other groups combined. They have divested that agency of any 
control over Endangered Species Act priorities and caused a 
huge drain on any resources.'`
    Then the article goes on. It is very telling. Anyway, ``Eno 
apparently said, 'The amount of money CBD makes suing is just 
obscene. They are one of the reasons the Endangered Species Act 
has become so dysfunctional.'''
    And I know in my first term here we were going to reform 
the Endangered Species Act because we had saved so few species, 
and so we worked so hard, and we had hearings like this, and we 
heard not just from one person on a panel but all kinds of 
sources, how can we save more species? And it appeared one of 
the things to end this unwritten policy that landowners, many 
of them have, of shoot, shovel and shut up was to stop taking 
their land and saying you can never use it again but pay them 
if the Federal government found a species that was endangered 
so they would have incentives to report them instead of killing 
them, and I couldn't believe the onslaught that we took for 
trying to do that.
    So, by the end of it, the thing I wanted to get in the 
record, Mr. Chairman, it became clear that the assault on that 
effort to pay landowners for land we had taken away was not 
about saving species, it was an assault on private property 
rights, and I see my time has expired, so I yield.
    The Chairman. Well, I thank the gentleman for getting that 
on the record. There was some discussion on that issue with 
some of the other witnesses.
    The Chair recognizes the gentleman from Florida, Mr. 
Rivera.
    Mr. Rivera. I yield back my time.
    The Chairman. Would you yield to me?
    Mr. Rivera. Certainly.
    The Chairman. All right. I have just a couple of 
observations since I have some time. Mr. Miller, you responded 
to Mr. Flores' I think inquiry about the number of jobs that 
would be lost with this project. Pacific County and Grays 
Harbor County are right in the middle of timber country. How 
many jobs were lost with the spotted owl in your county? Do you 
know right off the top of your head?
    Mr. Miller. I do not have that information, although I 
believe in our general area the spotted owl was not as big an 
issue as in other parts of the State of Washington.
    The Chairman. But you did have mills though.
    Mr. Miller. Yes, we did.
    The Chairman. And how many mills have been closed which 
would have--well, if you don't have that right off the top of 
your head, that would be good to know.
    Mr. Miller. Yes, sorry, I do not have that information.
    The Chairman. OK. Mr. Suckling, you mentioned I think to an 
inquiry by Mrs. Bordallo what your win percentage is and you 
said 93 percent, is that correct?
    Mr. Suckling. Correct, sir.
    The Chairman. Is that 93 percent in court?
    Mr. Suckling. Yes, sir.
    The Chairman. So 93 percent, not settlements, only in 
court?
    Mr. Suckling. Well, no, including settlements and court 
cases.
    The Chairman. Well, there is a distinction there. There is 
a huge distinction it seems to me. What is the win percentage 
in court as opposed to settlements?
    Mr. Suckling. If you just look at court orders, it is 
probably on the order of 80 percent, something like that.
    The Chairman. Eighty percent on settlements?
    Mr. Suckling. No, in court orders you just asked. I am 
sorry, sir.
    The Chairman. Court orders?
    Mr. Suckling. Yes.
    The Chairman. All right. We want to pursue that a little 
bit more closely and I will have some followup questions in 
that regard.
    To follow up on the line of questioning Mr. Amodei had 
about the recovery plans and whether they get revisited. 
Revisiting, is that subject to litigation?
    Mr. Suckling. Very rarely, sir.
    The Chairman. Is it subject to litigation?
    Mr. Suckling. It is an area that very few rules apply. 
There have been in the whole 30-year history of the ESA I am 
guessing 10 or 12 lawsuits total.
    The Chairman. But it is subject to litigation then? Whether 
it has been exercised or not is a different issue. The question 
is, is it subject to litigation?
    Mr. Suckling. Anything in the Act is subject to anyone 
making a claim. Whether they can win or not is up to them.
    The Chairman. OK. All right. Well, with that, I want to 
thank very much the panel for being here for the length of time 
that you took, and clearly there is a great deal of interest on 
this issue. As I said at the outset, this is the first of a 
series of hearings we are going to have.
    As normally applies, and I alluded to this, and Mr. Lamborn 
alluded to this also, there are always followup inquiries that 
we would like to have of all of you. For example, Ms. Budd-
Falen, Mr. Flores asked you to respond to him. If you would 
respond to the full Committee, I would appreciate that. We will 
see that Mr. Flores gets that information.
    But what I would really like to ask all of you, and that 
is, if there is an inquiry that comes from us, we would like to 
have a very, very timely response. Can you all assure me that--
when I say timely I am looking at roughly 30 days. I know there 
may be some complexities, but can you assure me that any 
inquiry that comes from any of us you try to respond within a 
30-day time period? Anybody that can't?
    [No response.]
    The Chairman. OK, I will assume that as all affirmative. 
With that--I gladly yield to the gentleman.
    Mr. Sablan. Thank you very much, Mr. Chairman. Mr. Suckling 
had a response to the article that Dr. Gohmert quoted. That was 
also published in the High Country News?
    Mr. Suckling. Correct, sir.
    Mr. Sablan. I would also ask that this response be included 
in the record.
    The Chairman. That would be fine. Without objection.
    Mr. Sablan. Thank you, Mr. Chairman. Thank you very much.
    [The article submitted for the record by Mr. Suckling 
follows:]

High Country News
Suckling responds: Cashing in? Nope, just saving species every day
by Kieran Suckling
July 25, 2011
Note: This is a response to a Writers on the Range column by Ted 
        Williams, headlined ``Extreme Green.''
    Industry-funded zealots are angling to prevent nonprofits from 
protecting veterans, children, workers and the environment. With the 
absurd argument that nonprofits are getting rich by making the 
government follow its own laws, they want to ensure that only the truly 
rich are able to take the government to court.
    Even those who should know better are drinking the Kool-Aid on this 
one, including outdoor writer Ted Williams, whose recent essay in High 
Country News' Writers on the Range accused the Center for Biological 
Diversity of ``shaking down taxpayers.'' Cribbing from the Internet 
like a Fox News intern, Williams serves up industry propaganda with a 
side of his own trademark use of ``anonymous'' sources and dubious 
quotations.
    Laws to make working conditions safe, ensure our water is clean, 
and protect the rights of veterans and children only work when they are 
enforced. But often they are not because of industry pressure. Witness 
the complete dominance of the U.S. Department of Interior's Minerals 
Management Service by the oil industry in the run-up to BP's 
catastrophic oil spill in the Gulf of Mexico.
    American democracy guards against corruption by allowing citizens 
to sue the government. Now, taking on the government isn't cheap. You 
have to go up against the entire Department of Justice. That's easy for 
the oil industry, Wal-Mart and developers who have money to burn. Not 
so easy for the rest of us.
    To level the playing field, the federal government pays the legal 
fees of individuals, small businesses and nonprofit groups--but only if 
they win. If they lose, they pay their own way.
    In its campaign to revoke this essential equalizer, industry has 
launched a public relations war hinged on the big lie that nonprofits--
especially environmental groups--are getting rich by ensuring that 
environmental laws are followed.
    The current darling of the propaganda machine is Ted Williams, who 
accuses the Center for Biological Diversity of filing petitions to 
protect hundreds of endangered species and then suing the government 
when it inevitably fails to rule on the petitions within 90 days. In 
Williams' tightly scripted anti-environmental message, it's a racket 
producing ``a major source of revenue'' for the Center.
    Nonsense. Between 2008 and 2011, the Center received legal fee 
reimbursements for an average of one case per year challenging the 
government's failure to process endangered species protection petitions 
within 90 days. The average yearly total was $3,867; much less than the 
Center spent bringing the cases. Not exactly a get-rich quick scheme.
    Rush to court? Every one of these suits was filed after the 
government missed its 90-day protection deadline by months, and in some 
cases by over a year. I would submit that spending $3,867 of the 
federal government's money to save the Mexican gray wolf, walrus and 
right whale from extinction is a bargain and a half.
    Williams dives completely into the propaganda sewer when he quotes 
an ``anonymous'' government official complaining of a Center petition 
to protect 404 rare southeastern plants and animals. The alleged 
``anonymous'' source is allegedly outraged that the Center will file a 
slam-dunk nuisance lawsuit because the government can't possibly study 
all 404 species in 90 days.
    In fact, the Center didn't sue, even after the government missed 
its deadline by 420 days. Instead we developed a plan with the U.S. 
Fish and Wildlife Service to ensure all these rare species get reviewed 
for protection in a reasonable amount of time.
    The 1,145-page petition, by the way, was written by three Center 
ecologists with contributions by a dozen academic scientists and 
scientific societies specializing in aquatic ecology. The $75,000 
research project took a year of hard work and set the standard for 
state-of-the-art regional biodiversity assessments. Far from a 
nuisance, it is a massive contribution of critical scientific 
information to be used by state and federal wildlife agencies.
    Without providing any supporting data--not even an ``anonymous'' 
source this time--Williams goes on to charge that the Center is raking 
in the cash by suing ``for missed deadlines when the agency can't keep 
up with the broadside of Freedom of Information Act requests.''
    Hmm. In the past four years, the Center received legal 
reimbursements for exactly one Freedom of Information Act deadline suit 
and the amount we received ($3,031) was far less than we spent forcing 
the Department of the Interior to come clean with the public over its 
offshore oil leasing program in the wake of the Gulf of Mexico 
disaster.
    The Center for Biological Diversity will keep expending vastly more 
resources ensuring the government follows its own wildlife protection 
laws than we'll ever recoup. That's fine with us, because making sure 
bald eagles, wolves, wolverines and owls have a place to live and grow 
is more important than money.
    It's why we do what we do.

Kieran Suckling is executive director of the Center for Biological 
        Diversity, a national environmental group based in Tucson, 
        Ariz., advocating for endangered species and the wild places 
        they live.

 High Country News
                                 ______
                                 
    The Chairman. With that, I would like to dismiss this panel 
and thank you very, very much for your patience and for your 
testimony. We look forward perhaps in the future to having all 
or some of you back on other issues. With that the panel is 
dismissed. And while I am dismissing the panel I would like the 
second panel to come forward: Mr. Dan Ashe, Director of U.S. 
Fish and Wildlife, and Mr. Eric Schwaab, the Assistant 
Administrator for Fisheries for NOAA.
    [Pause.]
    The Chairman. The Committee will come back to order and I 
want to welcome the second panel to this hearing. I want to 
thank Mr. Dan Ashe, who is the Director of U.S. Fish and 
Wildlife Service, for being here, and Mr. Eric Schwaab, who is 
Assistant Administrator for Fisheries for NOAA, for being here.
    You heard before your full testimony will appear in the 
record, and when the green light is on you are doing very, very 
well. When the yellow light comes on it means you have a minute 
left, and when the red light comes on it means that your time 
has expired and I would like you to summarize. So, with that, I 
am pleased to recognize Mr. Dan Ashe for five minutes. You are 
recognized, sir.

           STATEMENT OF THE HON. DAN ASHE, DIRECTOR, 
        U.S. FISH AND WILDLIFE SERVICE, WASHINGTON, D.C.

    Mr. Ashe. Thank you, Mr. Chairman, and good afternoon now I 
guess it is. The Committee has my official statement, so I will 
use my time to make two general points today.
    First, regarding litigation, I think as you heard before, 
in the panel before, the U.S. Fish and Wildlife Service is an 
equal opportunity target. We are challenged frequently by 
industry, environmental and conservation organizations, states, 
tribes, local governments and individual citizens, obviously 
including several of the witnesses that have been testifying 
here today.
    For somebody in my position it is a source of frustration 
for sure. It can cause us to be too timid in embracing 
innovations. It can cause delay. But let me say with clarity 
that litigation is not our principal challenge in effectively 
implementing this important law. In fact, it is not even close. 
Our principal challenge is the escalating loss and conversion 
of habitat that is driven by growing human occupation of the 
planet. It is the expansion of exotic species invasions driven 
by globalizing trade and a paucity of resources to monitor its 
impact. It is the warming of the atmosphere and the ocean that 
is changing the planet's climate system and driving large-scale 
ecological disruption.
    We are challenged in accessing and applying state-of-the-
art scientific information, and this is why we have requested 
funding to build a network of partner-managed landscape 
conservation cooperatives, and I am grateful for the support 
that we have received in this effort from both the 
Administration and the Congress.
    We are challenged by the escalation of political rhetoric 
around the Endangered Species Act. Certainly we can and we will 
improve this law's implementation, but allegations that the law 
is broken and characterizations of good men and women who carry 
it out as zealots or worse is neither correct nor helpful in 
this endeavor.
    I believe that Congress enacted the law's citizens suit 
provisions to ensure that we are held to the highest possible 
standard in its implementation, and they have generally served 
that purpose well. I would take one exception. The torrent of 
deadline-related cases over the past decade has had the 
unfortunate effect of distorting and delaying our biological 
priorities. However, I believe that we have addressed this in 
the recent multidistrict litigation settlement and with our 
requests to the Congress for a cap, an appropriations subcap on 
petition findings.
    My second point pertains to allegations that the Endangered 
Species Act and its attendant regulations result in job losses. 
Of course, by its very nature, the business of fish and 
wildlife conservation is about restraint and a desire to save 
some of what we have for the benefit of future generations. If 
we do great harm to the environment in pursuing our ambitions 
for wealth today, then we run the risk of impoverishing our 
children and grandchildren tomorrow. So, in its wisdom, 
Congress enacted laws like the Endangered Species Act which ask 
us to consult, to contemplate consequences and consider 
restraint. It asks us to make choices which are often very 
difficult but which in balance have proven healthy for the 
Nation and its economy.
    Today in the Mojave Desert construction is proceeding on 
the Ivanpah Project, the world's largest solar facility. During 
construction an average of 650 Americans will be employed 
annually. When complete, 392 megawatts of American made clean, 
reliable, renewable energy will be produced. It is located 
within some of the highest quality habitat for the threatened 
desert tortoise. As the parent company raced to meet very hard 
financing deadlines for that project, our biologists stepped 
up. They worked nonstop, weekend upon weekend until the job was 
done.
    They are considering currently to list the dune sagebrush 
lizard as endangered, raising much concern in the Permian Basin 
oil fields of Texas and New Mexico which produce 17 percent of 
our domestic oil. Once again our employees are rolling up their 
sleeves in partnership with the states, the oil industry, the 
Bureau of Land Management and private landowners. They are 
developing candidate conservation agreements and candidate 
conservation agreements with assurances, and today we are 
approaching 2 million acres signed up in these voluntary 
conservation agreements, helping assure a healthy ecology for 
the lizard and healthy economy for west Texas, eastern New 
Mexico and the nation.
    Mr. Chairman, these women and men are not job-killers. They 
are good Americans and exceptional public servants who bring a 
sense of patriotism, duty and professionalism to everything 
they do. They represent the very best in public service, and 
their examples are not anomalies. They reflect the dedication 
of all U.S. Fish and Wildlife Service employees who do 
outstanding jobs in carrying out important laws like the 
Endangered Species Act.
    Thank you for the opportunity to testify today, and I look 
forward to answering your questions.
    [The prepared statement of Mr. Ashe follows:]

                   Statement of Dan Ashe, Director, 
    U.S. Fish and Wildlife Service, U.S. Department of the Interior

    Good morning Chairman Hastings, Ranking Member Markey and members 
of the Committee. I am Dan Ashe, Director of the U.S. Fish and Wildlife 
Service (Service).
    Mr. Chairman, I appreciate this opportunity to discuss how the 
Service carries out its duties related to the Endangered Species Act 
(ESA), the challenges associated with carrying out those duties, and 
the benefits associated with the Service's conservation mission. Our 
procedures, some prescribed by statute and others by agency regulations 
or policies, are all focused upon ensuring that our decisions are 
objective and based on the best available science. In addition, our 
listing and recovery plan decisions are made in the open with peer 
review and public participation throughout. The Service is committed to 
making the ESA work in the eyes of the public, the Congress, and the 
courts so as to accomplish its purpose of conserving threatened and 
endangered species and protecting the ecosystems upon which they 
depend.
    This job has never been easy, and it grows more difficult and 
complex every day. We are facing an extinction crisis. With the pace 
and extent of environmental change threatening the continued existence 
of more and more of our Nation's biological wealth, we must manage 
limited resources to carry out our mission. The unprecedented challenge 
of climate change and its broad, complex impacts on species and habitat 
make it even more imperative to have an effective, collaborative 
approach to conserving imperiled species. The nature of this work often 
results in strongly held views on all sides and frequent challenges to 
our decisions through the administrative, judicial, and political 
process. In the face of all these factors, we are confident our agency 
does an excellent job of making decisions that are scientifically 
sound, legally correct, transparent, and capable of withstanding 
challenge.

Benefits of Conservation
    The health of threatened and endangered species is strongly linked 
to our own well-being. Millions of Americans depend on habitat that 
sustains these species--for clean air and water, recreational 
opportunities and for their livelihoods. By taking action to protect 
imperiled native fish, wildlife and plants, we can ensure a healthy 
future for our community. Our Nation's history is deeply rooted in the 
conservation of our landscapes, and their value to the American people 
and our economy is clear. For example, the 2006 National Survey of 
Fishing, Hunting, and Wildlife-Associated Recreation, a Department of 
the Interior and Department of Commerce document, found that 87.5 
million U.S. residents participated in wildlife-related recreation. 
During the survey's period of review, 30 million people fished, 12.5 
million hunted, and 71.1 million participated in at least one type of 
wildlife-watching activity such as wildlife observation and photography 
in the United States. These 87.5 million people spent $122.3 billion on 
their activities. Of that, $37.4 billion was trip-related, $64.1 
billion was spent on equipment, and $20.7 billion was spent on other 
items such as licenses and land leasing and ownership. Maintaining 
biological diversity, by protecting our nation's threatened and 
endangered species, provides ecological, scientific, aesthetic, 
recreational, commercial, subsistence, social, cultural, and economic 
benefits to society.

Success in the Endangered Species Act
    The ESA provides a critical safety net for America's native fish, 
wildlife, and plants. And we know it can deliver remarkable successes. 
Since Congress passed this landmark conservation law in 1973, the ESA 
has prevented the extinction of hundreds of imperiled species across 
the nation and has promoted the recovery of many others--like the bald 
eagle, the very symbol of our Nation's strength. Well-known examples 
include the recovery of the American alligator and brown pelican. 
Likewise, in August of this year, the Service delisted the Tennessee 
purple coneflower. This was the culmination of another Service-
facilitated alliance of multiple diverse partners coming together to 
achieve the unified goal of recovery for an endangered plant species.
    Success under the ESA is not only defined by removal of species 
from the list of endangered and threatened species. The fact that 
relatively few observed extinctions have occurred in the United States 
during the last four decades represents a significant benchmark of 
success of the ESA. The law has been successful in stabilizing 
endangered and threatened species by promoting conservation programs 
that are designed for their recovery. For instance, the Service and 
Eglin Air Force Base have worked together to address threats to a small 
native stream fish on the base, the Okaloosa darter, and this year the 
Service was able to downlist the fish from endangered to threatened. 
Partnerships with the States, Tribes, and the agricultural community 
are supporting the ongoing recovery of the black-footed ferret, once 
believed to be extinct but re-discovered 30 years ago and now 
reestablished in 10 experimental populations. A less familiar but 
equally impressive example is that of the Kemp's ridley sea turtle, 
increasing from fewer than 300 females nesting in 1985 to more than 
6,000 females nesting in recent years.
    Our Nation's rich diversity of fish, wildlife, and plant resources 
symbolizes America's richness and promise. The ESA represents a firm 
commitment to safeguard our natural heritage for future generations out 
of a deeply held understanding of the direct link between the health of 
our ecosystems, the services they provide and our own well-being.

ESA Consultation and Habitat Conservation Planning
    Science is the foundation of our consultation and recovery 
activities under the ESA. One of the most important and effective tools 
available to recover endangered and threatened species is the 
consultation process prescribed by section 7 of the ESA. We engage in 
consultation with other Federal agencies to assist them in meeting 
their obligation to avoid taking any action that would be likely to 
jeopardize the continued existence of a listed species or that would 
destroy or adversely modify their critical habitat.
    Habitat Conservation Plans (HCPs) under section 10(a)(1)(B) of the 
ESA provide for partnerships with non-Federal parties to conserve the 
ecosystems upon which listed species depend, ultimately contributing to 
their recovery. HCPs are planning documents required as part of an 
application for an incidental take permit. HCPs provide the 
conservation benefits of proactive landscape planning, combining 
private land development planning with species ecosystem conservation 
planning. Working in partnership is foundational for the Endangered 
Species program, because the conservation of the Nation's biological 
heritage cannot be achieved by any single agency or organization. 
Essential partners include other Federal agencies, States, Tribes, non-
governmental organizations, industry, academia, private landowners, and 
other Service programs and partners. Our collaboration with these 
partners foster solutions providing a balance between wildlife, energy, 
and other economic development.
    In recent years we have worked closely with energy developers to 
site pipelines, solar projects, and wind projects that will reduce our 
reliance on foreign energy sources and create jobs, while avoiding or 
minimizing impacts to threatened and endangered species. For example 
the NiSource pipeline HCP in the eastern U.S. is a partnership with 17 
States and other stakeholders to develop a landscape level, multi-
species HCP to avoid and minimize impacts to endangered and threatened 
species associated with construction, operation, and maintenance of its 
natural gas transmission lines and ancillary facilities running from 
Louisiana to Indiana, and Ohio throughout the northeast to Maine. This 
15,500-mile planning area and associated one-mile corridor covers 6.4 
million acres of land and has the potential to affect 74 federally 
listed species.
    Another example is the Ruby Pipeline Natural Gas Project in 
Wyoming, Utah, Nevada, and Oregon. In the case of the Ruby Pipeline 
Project, the Service worked with the project proponent (Ruby Pipeline 
LLC), the Bureau of Land Management, the Forest Service, and State 
wildlife agencies to develop an ESA Conservation Action Plan, a 
Migratory Bird Conservation Plan, and various State mitigation plans to 
avoid, minimize, and mitigate adverse project impacts to listed and 
candidate species, species of concern, migratory birds, and other State 
species and habitats of concern. Ruby Pipeline LLC has committed about 
$1.7M, $2.8M, and $17M, respectively, to implement these plans. About 
$11M of that funding commitment is intended to address the conservation 
needs of the greater sage grouse to ensure the project does not 
contribute to the need to list this candidate species.
    Using the ESA consultation process, we also worked with the Bureau 
of Land Management on 12 approved high-priority renewable energy 
projects (solar and wind) in 2010, and we have assisted in the approval 
of 11 high-priority renewable energy projects to date in 2011 (4 others 
are close to being approved). The Service is also implementing an 
action plan for supporting ESA compliance for renewable energy projects 
on private lands. This plan takes a 3-pronged approach to developing 
additional staff capacity so that the Service can provide support to 
private developers for renewable energy projects with HCP permit 
decisions completed in a timely manner.
    An integral component of this partnership is the increases in base-
funding in FY 2010 and FY 2011 that we obtained and the President's 
2012 budget requested an additional $2 million to support renewable 
energy projects. These resources provided the Service with much needed 
capacity to help guide energy projects through the permitting process, 
clearly showing that wildlife conservation, economic development, and 
job creation can occur simultaneously. For example, the California 
Habitat Conservation Planning Coalition estimated that regional HCPs in 
California alone will conserve almost 1.5 million acres of land, while 
permitting projects with a cumulative value of $1.6 trillion.

Multi-District Litigation Settlements for the Listing Program
    The nature of ESA work often results in challenges to our decisions 
through the administrative, judicial, and political process. Overall, 
we believe the Service does an excellent job of making decisions that 
are scientifically sound, legally correct, transparent, and capable of 
withstanding challenge. Recently, questions have been raised about the 
costs of litigation.
    In an effort to reduce litigation and shift litigation-related 
resources to improving implementation of the ESA, the Service recently 
developed a 6-year work plan for the Listing Program through mediated 
settlement agreements of cases in Multi-District Litigation (MDL) with 
two of the Service's most frequent plaintiffs, the Center for 
Biological Diversity and WildEarth Guardians. These cases are discussed 
in further detail below. As a result of those settlements, we now 
expect to be able to address the backlog of species awaiting final 
determinations for protection under the Act, and for the first time in 
years, the wildlife professionals at the Service will have the 
opportunity to use our objective listing priority system to extend the 
safety net to those species most in need of protection, rather than 
having our work priorities driven by the courts.
    The Service will systematically, over a period of 6 years, review 
and address the needs of more than 250 species now on the list of 
candidates for protection under the ESA, to determine if they should be 
added to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. All of these species were previously determined by the Service 
to warrant being proposed for listing, but action was deferred because 
of the need to allocate resources for other higher priority listing 
actions. The Service will make listing determinations for each species, 
carefully reviewing scientific information and public comments before 
determining whether listing is still warranted and, if so, whether to 
designate the species as threatened or endangered. Each and every 
listing proposal will be subject to public review and comment.
    The listing work plan will also provide predictability and 
certainty to landowners and State, Tribal and local governments, 
providing time for States and landowners to engage in conservation 
programs and for agencies to develop management plans. The Service has 
developed a variety of tools and programs to encourage conservation 
efforts for listed and candidate species that are compatible with the 
objectives and needs of landowners with listed and candidate species on 
their lands. These tools include Habitat Conservation Plans, Safe 
Harbor Agreements, and Candidate Conservation Agreements that provide 
regulatory assurance; technical assistance; and a grants program that 
funds conservation projects by private landowners, States, and 
territories. In five of the states represented on this committee, 
Florida, Georgia, Louisiana, South Carolina, and Texas, roughly 240 
private landowners have enrolled nearly 2.5 million acres of private 
forest lands in Safe Harbor agreements to aid the recovery of the 
endangered red-cockaded woodpecker.

Litigation Costs
    We fully agree with the concern that our resources are better spent 
on implementing the ESA than on litigation. This was our intent in 
settling the Multi-District Litigation. With the work plan in place, 
WildEarth Guardians and the Center for Biological Diversity agreed to 
dismiss their pending lawsuits and agreed to provisions that should 
have the effect of limiting the number of new petitions and/or deadline 
lawsuits they would file during the same time period. The work plan 
allows the Service to reclaim a greater measure of control over our 
listing activities, to resolve our backlog of listing actions in a 
timely and cost-effective manner, and to focus our limited resources on 
the species most in need of ESA protection.
    The two settlement agreements resolved 13 separate lawsuits that 
were consolidated in these MDL proceedings, and the parties are 
currently attempting to settle the fees-related claims for all of these 
lawsuits. Because the parties' fees-related negotiations are complex 
and ongoing, it is not possible to estimate the amount of any fee award 
at this time. If the parties are unable to agree on the amount of fee 
awards, the court will determine the appropriate amount.
    Nationwide, in FY 2011, the Service spent approximately $1.24 
million to manage, coordinate, track, and support ESA litigation. This 
does not include staff time and resources to prepare administrative 
records and other administrative expenses, nor does it include salaries 
and expenses related to litigation for the Department of the Interior's 
Office of the Solicitor. Although we do not generally track this 
information, we identified approximately $134,156 paid out of Service 
funds for attorneys' fees in FY 2010 and $15,833 in FY 2011. Our FY 
2011 resource management allocation for listing and critical habitat 
was $20.9 million, of which we spent at least $15.8 million taking 
substantive actions required by court orders or settlement agreements 
resulting from litigation. For recovery and habitat conservation, which 
includes section 7 consultation, our resource management allocation was 
$143.1 million.

Improving Implementation of the ESA
    We are committed to continually improving the ESA's implementation 
in close collaboration with our partners. In addition to the 6-year 
work plan for the Listing Program, the Service and the NOAA Fisheries 
are working to improve implementation of the ESA by considering 
appropriate changes to our practices, guidance, policies, or 
regulations to enhance conservation of listed species. Our priority is 
to make implementation of the ESA less complex, less contentious and 
more effective by ensuring that key operational aspects of the ESA are 
current, transparent, and results oriented.
    We seek to accelerate recovery of threatened and endangered species 
across the nation while making it easier for people to coexist with 
these species. To improve the efficiency and effectiveness of the ESA 
in conserving endangered and threatened species, the Service and NOAA 
Fisheries have begun a renewed effort to identify areas where changes 
in ESA implementing regulations and policies may reduce burdens, 
redundancy, and conflict, and at the same time promote predictability, 
certainty, and innovation. This effort is guided by the following 
objectives, which conform with the principles espoused in President 
Obama's Executive Order 13563, ``Improving Regulation and Regulatory 
Review'' and the Service's vision for the Endangered and Threatened 
Species Program:
          Improving the effectiveness of the ESA to conserve 
        imperiled species;
          Making administrative procedures as efficient as 
        possible;
          Improving the clarity and consistency of our 
        regulations through, among other things, the use of plain 
        language and by providing more precise definitions of many of 
        our key terms;
          Encouraging more effective conservation partnerships 
        with other Federal agencies, the States, Tribes, conservation 
        organizations, and private landowners;
          Encouraging innovation and cooperation in the 
        implementation of the ESA; and
          Reducing the frequency and intensity of conflicts 
        when possible.
    The Service and NOAA Fisheries seek to be open and transparent in 
our efforts to improve ESA implementation through ESA regulatory reform 
and meet the goals of promoting public participation, promoting 
innovation, increasing flexibility where possible, ensuring scientific 
integrity, and continuing our analysis of existing rules as set forth 
in Executive Order 13563.

Conclusion
    In closing, Mr. Chairman, America's fish, wildlife, and plant 
resources belong to all of us, and ensuring the health of imperiled 
species is a shared responsibility. We are working to actively engage 
conservation partners and the public in the search for improved and 
innovative ways to conserve and recover imperiled species. I would like 
to emphasize the importance the Service places upon having a science-
driven, transparent decision-making process in which the affected 
public can meaningfully participate.
    The Service remains committed to conserving America's fish and 
wildlife by relying upon the best available science and working in 
partnership to achieve recovery. Thank you for your interest in 
endangered species conservation and ESA implementation, and for the 
opportunity to testify.
                                 ______
                                 
    The Chairman. Thank you, Director Ashe.
    And I recognize Mr. Schwaab from NOAA. You are recognized 
for five minutes.

    STATEMENT OF ERIC SCHWAAB, ASSISTANT ADMINISTRATOR FOR 
  FISHERIES, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, 
                        WASHINGTON, D.C.

    Mr. Schwaab. Chairman Hastings, Ranking Member Sablan, and 
Members of the Committee, thank you for the opportunity to 
testify today. I am Eric Schwaab and I serve as the Assistant 
Administrator for Fisheries at NOAA.
    The ESA requires the listing and protection of species that 
are determined to be endangered or threatened. Protecting and 
recovering ESA-listed species such as salmon and sea turtles 
are crucial to ensuring functioning marine ecosystems and 
providing recreational and economic opportunities for the 
public. At the same time, effectively executing mandates under 
the ESA through listing decisions, critical habitat 
designations, recovery planning and consultation is critical to 
the conduct of important business enterprises around the 
country.
    The National Marine Fisheries Service shares jurisdiction 
over the ESA with the U.S. Fish and Wildlife Service. We manage 
most marine species, including anadromous species such as 
salmon, and we currently manage 82 listed species and have 
proposed an additional 12 species for listing.
    Listings, delistings and changes in status to listed 
species may be initiated by our agency or by petition from any 
interested person. We make listing decisions solely on the 
basis of the best available scientific and commercial data 
available. We are also bound to follow, as you know, strict 
statutory timelines.
    Once a species is listed we are required to designate 
critical habitat for that species, promulgate protective 
regulations for threatened species and develop recovery plans 
that identify conservation measures to recover listed species. 
We work closely with other Federal agencies, state and local 
governments, territories, tribes and private entities to 
develop and implement conservation measures.
    The ESA also requires that Federal agencies proposing 
actions that may affect listed species consult with the 
National Marine Fisheries Service or the Fish and Wildlife 
Service to ensure their proposed actions are not likely to 
jeopardize the continued existence of the species or adversely 
modify critical habitat. This consultation process often 
concludes when we issue a biological opinion, which presents 
our best assessment of how the proposed actions would affect 
listed species and offers measures to minimize, take reasonable 
and prudent alternatives to avoid species jeopardy or adverse 
modification of critical habitat.
    The ESA does permit citizen suits, allowing any person to 
begin a civil suit on his or her own behalf. Much of the ESA 
litigation against NMFS to date has been focused on listings 
and listing-related decisions, the designation of critical 
habitat and on Section 7 interagency consultations. Since 2008, 
there have been approximately 61 cases filed challenging 
listings, critical habitat actions and Section 7 consultations. 
Cases have been filed by nonprofit environmental organizations, 
state and local jurisdictions, industry groups, tribes and 
private citizens. While litigation poses many challenges, it 
can also serve as a useful tool in surfacing concerns and 
bringing parties together.
    The ESA has been instrumental in preventing species from 
going extinct and facilitating steps toward conservation and 
recovery of listed species. Two examples I would highlight in 
our jurisdiction are the Kemp's Ridley sea turtle and Pacific 
salmonids.
    Listed under the ESA since the law's inception, the 
endangered Kemp's Ridley has gone from fewer than 300 nesting 
females in 1985 to more than 6,000 nesting females, and it is 
close to meeting one of the major recovery criteria for 
downlisting. Cooperative efforts with U.S. commercial fishermen 
through the development of turtle excluded devices has been 
instrumental in addressing major threats to the species.
    Currently 28 populations of Pacific salmon and steelhead 
are listed as threatened or endangered. Long-term habitat 
restoration and protection activities have begun to pay off, 
and now, with the exception of Puget Sound Steelhead and 
Central California Coast Coho, all populations with 10 or more 
years of abundance data are currently stable or increasing.
    Although we have made significant progress in recovering 
some species, we recognize the need to make ESA implementation 
more effective and efficient. We have been working closely in 
cooperation with the Fish and Wildlife Service to improve the 
clarity, consistency and transparency of various components of 
our regulations such as those pertaining to incidental take 
statements and critical habitat. We have placed particular 
emphasis on making the process for designating critical habitat 
more efficient and developing additional incentives for 
voluntary conservation actions.
    Additionally, in recognition of the special and unique 
relationships states play in protecting and managing listed 
species, we have created a joint Federal/state task force which 
has been working to address a number of policy issues.
    Mr. Chairman, I want to again acknowledge appreciation for 
the opportunity to be with you today. I would be happy to 
answer any questions you might have.
    [The prepared statement of Mr. Schwaab follows:]

   Statement of Eric Schwaab, Assistant Administrator for Fisheries, 
  National Marine Fisheries Service, National Oceanic and Atmospheric 
              Administration, U.S. Department of Commerce

    Chairman Hastings, Ranking Member Markey, and Members of the 
Committee, thank you for the opportunity to testify before you today on 
the Endangered Species Act (ESA). My name is Eric Schwaab and I am the 
Assistant Administrator for Fisheries, within the National Oceanic and 
Atmospheric Administration (NOAA) of the Department of Commerce. NOAA's 
National Marine Fisheries Service (NMFS) is dedicated to the 
stewardship of living marine resources and the promotion of healthy 
ecosystems, through science-based conservation and management. As a 
steward, NMFS conserves, protects, and manages living marine resources, 
including those that are listed under the ESA, to ensure functioning 
marine ecosystems and recreational and economic opportunities for the 
American public.

NMFS's Role in Implementing the ESA
    The ESA (16 U.S.C. 1531-1543; P.L. 93-205, as amended) requires 
NMFS and the U.S. Fish and Wildlife Service (FWS) to list species that 
are determined to be endangered or threatened, and to subsequently 
protect those species and their habitats. Pursuant to a 1974 Memorandum 
of Understanding between the two agencies, FWS has management authority 
for terrestrial and freshwater species, while NMFS manages most marine 
species, including anadromous species that spend most of their life 
cycles in the ocean. NMFS currently manages 82 listed species. We have 
proposed an additional 12 species to be listed and are evaluating the 
status of 94 candidate species for potential listing under the ESA, 
including 82 species of coral.
    Section 4(a) requires NMFS to determine whether a species should be 
placed on, or removed from, the federal list of endangered or 
threatened species. Listings, de-listings, and changes in status to 
listed species may be initiated by NMFS or by petition from any 
interested person. Once a petition is received, NMFS must, to the 
maximum extent practicable, determine within ninety days whether the 
petition presents substantial information that the petitioned action 
may be warranted. If NMFS determines the petition presents such 
information, we initiate a review of the species' status and must 
determine whether to list the species within one year of receiving the 
petition. Should NMFS formally propose listing a species, we must make 
a final listing determination within one year of the proposal. Listing 
determinations are based on a rigorous status review. At the end of the 
status review, NMFS determines whether the species meets the threshold 
for listing. Listing decisions must be made solely on the basis of the 
best available scientific and commercial data available and follow a 
strict statutory timeline.
    Once a species is listed, we are required to designate critical 
habitat for that species, promulgate protective regulations for 
threatened species, and develop recovery plans that identify 
conservation measures to recover listed species. NMFS works with other 
federal agencies, state and local governments, tribes, and private 
entities to develop and implement measures in these plans. These plans 
allow NMFS to prepare better informed analyses, inform other federal 
agencies on how to use their authorities, and guide cooperation with 
states and other interested parties.
    The ESA also requires, through Section 7, that federal agencies 
proposing actions that may affect listed species consult with NMFS or 
FWS to ensure their proposed actions are not likely to jeopardize the 
continued existence of the species or adversely modify its critical 
habitat. This consultation process often concludes when NMFS issues a 
biological opinion, which presents NMFS's assessment of how the 
proposed actions would affect listed species and offers measures to 
minimize take or reasonable alternatives that will not jeopardize the 
continued existence of the species or result in adverse modification to 
critical habitat.
    The ESA also permits ``citizen suits,'' allowing any person to 
begin a civil suit on his own behalf:
        (A)  to enjoin any person, including the United States and any 
        governmental entity or agency of the United States who is 
        alleged to be violating any provision of the ESA or regulations 
        issued pursuant to the ESA;
        (B)  to compel the Secretary of Commerce or the Interior (the 
        Secretary) to apply take prohibitions with respect to the 
        taking of any resident endangered or threatened species within 
        any State; or
        (C)  against the Secretary where there is alleged a failure of 
        the Secretary to perform any act or duty under Section 4 which 
        is not discretionary.
    Much of the ESA litigation has been focused on: listing and 
listing-related decisions such as findings on petitions to list; 
whether and how to list a species; the designation of critical habitat; 
and Section 7 interagency consultations, including whether a 
consultation is required and the outcome of consultation.
    Since 2008, there have been approximately 61 cases filed 
challenging NMFS's Section 4 listing and critical habitat actions and 
Section 7 consultations. The majority of the cases have been filed by 
non-profit environmental organizations, while others have been brought 
by state and local jurisdictions, industry groups, tribes, and private 
citizens. For those cases in which a final decision has been issued and 
the timeframe for appeal has expired, NMFS has prevailed fully in the 
majority of its Section 7 cases (8 wins, 1 loss, and 6 settlements). 
Likewise, NMFS has prevailed fully in most of its Section 4 cases (3 
wins and 1 loss) and has also settled 5 cases involving a failure to 
meet the ESA's statutory deadlines. The remaining cases are still 
pending in federal court.
    While litigation poses inherent challenges, in some circumstances 
it has served as a useful tool in bringing diverse interests to the 
table. Ultimately, in moving beyond litigation and bringing parties 
together toward implementation of recovery objectives, NMFS has seen 
great potential for species recovery.

Improving the Prospects for Recovery of Species
    The ESA has been instrumental in preventing species from going 
extinct and facilitating progress in recovering listed species. 
Recovery plans, a requirement for all ESA-listed species, provide a 
roadmap for actions and funding priorities needed to remove the species 
from the list and ESA protections. While we still face a number of 
challenges, we have begun to see the benefits of sustained conservation 
efforts for some of our species.

Kemp's Ridley Sea Turtles
    Once described as the most imperiled of all marine turtles, by the 
1960's the Kemp's ridley sea turtle had plunged to less than one 
percent of its historical population. Intense exploitation of turtle 
eggs and drowning of adult turtles in shrimp trawls were primarily 
responsible for the decline. Mexico established conservation programs 
in the 1960s to protect nesting females and their nests. In the United 
States, the Kemp's ridley has been listed and protected as an 
endangered species since the inception of the ESA. NMFS and FWS have 
worked cooperatively with Mexico, and with U.S. commercial fishermen 
through the development of turtle excluder devices, to address the 
threats that caused the decline of Kemp's Ridley sea turtles. The joint 
United States and Mexico recovery planning and conservation efforts 
have yielded benefits for the species. In recent years, we have 
observed an approximate 15 percent increase in Kemp's ridley nests per 
year at the species' main nesting beaches along the northeast coast of 
Mexico. In 1985, there were fewer than 300 females nesting each year. 
Today there are more than 6,000 nesting females. Currently, the Kemp's 
ridley is close to meeting one of the major recovery criteria for 
downlisting to threatened.

Pacific Salmon
    Pacific salmonid populations are described as Evolutionarily 
Significant Units (ESU) for salmon and Distinct Population Segments 
(DPS) for steelhead. Seventeen ESUs and 11 DPSs of Pacific salmon and 
steelhead are currently listed as threatened or endangered under the 
ESA. While populations may vary from year-to-year, the long-term 
habitat restoration and protection activities of NMFS's conservation 
and recovery efforts have assisted in sustaining the species through 
changing conditions by addressing major limiting factors for each ESU 
and DPS. With the exception of Puget Sound steelhead and Central 
California Coast coho, all ESUs and DPSs with ten or more years of 
abundance data are currently stable or increasing.
    NMFS has placed great emphasis on the recovery of Pacific salmon 
and recognizes the cultural, ecological, and economic significance that 
salmon play throughout the west coast. In the past several years, 
threats to Pacific salmon resulted in a consecutive three-year closure 
(2008-2010) of the once-thriving Pacific salmon fishery off the state 
of California. While this was a Magnuson-Stevens Conservation and 
Management Act closure, former Governor Arnold Schwarzenegger's 
Administration estimated that the closure of the salmon fishery in 
California in 2008 and 2009 resulted in the loss of more than $500 
million and cost nearly 5000 jobs, demonstrating the value of healthy 
salmon fisheries.
    NMFS has achieved substantial recovery benefits for Pacific salmon 
through grant expenditures made under the Pacific Coastal Salmon 
Recovery Fund (PCSRF), established by Congress in fiscal year 2000 to 
protect, restore, and conserve Pacific salmonids and their habitats, 
and to address the impacts of the Pacific Salmon Treaty Agreement 
between the United States and Canada. Under PCSRF, NMFS provides 
funding to states and tribes of the Pacific Coast region (California, 
Nevada, Oregon, Washington, Idaho, and Alaska) to implement habitat 
restoration and conservation projects focused on improving the status 
of salmonid populations. Over the past decade, the PCSRF has had a 
positive impact on both salmon recovery and local economies. A 2009 
study by the Ecosystem Workforce Program of the University of Oregon, 
entitled ``A Preliminary Estimate of Economic Impact and Job Creation 
from the Oregon Watershed Enhancement Board's Restoration Investments'' 
assessed the potential economic and employment impacts for watershed 
restoration activities proposed by the Oregon Watershed Enhancement 
Board. That study found that its proposed $40 million investment in 
watershed restoration projects would create or retain nearly 600 jobs 
and generate over $72 million in total economic activity in Oregon and 
leveraging additional funding could create or retain an additional 570 
to 885 jobs and $71 to $110 million in additional total economic 
activity.\1\ An extrapolation of these figures indicates that every 
$1million invested in watershed restoration results in the creation of 
29-37 jobs and a total economic impact of $3.6-4.5 million.
---------------------------------------------------------------------------
    \1\ https://scholarsbank.uoregon.edu/xmlui/bitstream/handle/1794/
10791/bp13.pdf?sequence=1.
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    Key accomplishments for PCSRF funded activities include:
          PCSRF projects have restored, protected, and made 
        accessible nearly 870,000 acres of habitat. Degraded habitat is 
        considered a major limiting factor in all areas where salmonid 
        populations are listed along the Pacific Coast.
          Over 5,300 miles of stream have been opened by PCSRF 
        projects since FY 2000.
          Nearly 240,000,000 fish have been marked supporting 
        efforts to gather data for improved stock identification, more 
        accurate fish abundance estimates, and more effective 
        management of selective fisheries on hatchery fish. These 
        markings improve harvest opportunities and provide economic 
        benefits to communities throughout the region.

Next Steps: Improving the Implementation of the ESA
    Regulatory Improvements. Although we have made significant progress 
in recovering some species, NMFS and FWS recognize that we can make 
implementation of the ESA more effective and efficient. In that regard, 
NMFS and FWS have been working cooperatively to improve the 
implementation of the ESA. In 2009, the NMFS and FWS sought public 
comment on potential changes to the Section 7 interagency consultation 
joint regulations. In response to these comments, to reflect lessons 
learned since these regulations were last updated in 1986, and as part 
of the Department of the Interior and the Department of Commerce's 
implementation of Executive Order 13563, ``Improving Regulation and 
Regulatory Review,'' NMFS and FWS are developing joint regulations to 
update the ESA Section 7 implementing regulations. Specifically, we are 
working to define ``destruction or adverse modification of critical 
habitat,'' which is used to evaluate whether and how federal activities 
can occur in critical habitat, and clarify the scope and content of the 
incidental take statements that are developed following a formal 
Section 7 consultation. These regulatory changes would make the Section 
7 consultation process more consistent. In addition, clarifying the 
scope and content of the incidental take statement, particularly with 
regard to programmatic actions or other actions where direct 
measurement is difficult, will provide greater flexibility in the 
quantification of anticipated incidental taking. Ultimately, this could 
reduce the burden of developing and implementing biological opinions 
without any loss of conservation benefits.
    The regulatory component of this initiative also includes updating 
the regulations governing the process for designating critical habitat 
for listed species to design a more efficient, defensible, and 
consistent process and developing additional incentives for voluntary 
conservation actions under the ESA.
    Increased Cooperation with the States. Section 6 of the ESA 
recognizes the unique role States play in wildlife conservation. In 
recognition of the special and unique relationship among the States, 
FWS, and NMFS in protecting and managing fish, wildlife and plants, the 
NMFS and FWS have created a Joint Federal/State Task Force on 
Endangered Species Act Policy. The Task Force serves as a forum to 
cooperatively identify and address issues of national significance and 
to jointly develop recommendations concerning those issues in 
implementing the ESA. As part of this Task Force's activities, the NMFS 
and FWS have reaffirmed the statement of joint policy, ``Endangered and 
Threatened Wildlife and Plants: Notice of Interagency Cooperative 
Policy Regarding the Role of State Agencies in Endangered Species Act 
Activities'' (Federal Register, July 1, 1994, vol. 59, page 34275), 
which outlines the process for cooperating with, and seeking the input 
of the States in prelisting conservation activities, listing decisions, 
interagency consultations, and habitat conservation planning.
    Increased Public Involvement. NMFS also recognizes that some 
species recovery activities are particularly controversial to the 
public and has taken steps in these circumstances to increase outreach 
to affected communities to explain our underlying conclusions about 
activities' impacts on protected species. Additionally, while all our 
decisions are guided by the best available science, we understand that 
the science related to many of our decisions evolves rapidly and as 
such have engaged external scientists in review of some of our broader-
reaching consultations or decisions. In short, we understand that, by 
engaging affected communities/industries in our decision-making, we can 
achieve enduring species recovery success.

Conclusion
    In conclusion, it is important to note that the ESA should not be 
evaluated solely by the number of species that have fully recovered and 
been removed from the list of threatened and endangered species. The 
ESA has been successful in stabilizing endangered and threatened 
species by addressing threats that caused their decline and promoting 
conservation programs that are designed for their recovery. By 
strengthening partnerships with states and others and maintaining our 
research and management efforts, we are best suited to promote the 
ecological, cultural, and economic benefits inherent in many of our 
listed species.
    Thank you again for the opportunity to testify today. I would be 
happy to answer any questions.
                                 ______
                                 
    The Chairman. Thank you, and I particularly thank your last 
sentence there, and the reason I say that, I stated at the 
outset this is going to be the first of a number of hearings, 
and I just want to tell you that in all likelihood you will 
have another opportunity in the future, and I look forward to 
that as much as, Mr. Schwaab, you said you look forward to it 
very cheerfully.
    I have a question for both of you, and the issue as you 
know of this hearing was the litigation aspect of it. We will 
pursue other areas in the future. But the WildEarth Guardians' 
2010 annual report lists the U.S. Fish and Wildlife Service and 
the U.S. Forest Service and the EPA and sources of grants that 
they use for their programs. Other organizations, including 
Trout Unlimited, have received funding directly or indirectly 
from NOAA.
    Can each of you describe the amount of grants that your 
agency distributes each year to entities that ultimately file 
ESA-related lawsuits against the Federal government? And if you 
do not have that right now, give me a general idea and pursue 
that. Mr. Ashe.
    Mr. Ashe. Mr. Chairman, we can get that information for you 
for the record. I cannot even put an estimate on it, but I 
would say that people that sue us include environmental 
organizations, it includes states, and we give over a billion 
dollars a year in grants to our state partners and they too are 
among the people who take us to court on occasion. And so, as I 
said, that would reach just about the entire breadth and depth 
of our partners in conservation if we looked at litigation as a 
potential consideration in our grant-making.
    The Chairman. Mr. Schwaab?
    Mr. Schwaab. Mr. Chairman, I am in exactly the same 
position as Mr. Ashe, and we would have to provide you some 
information for the record.
    The Chairman. Well, let me make an editorial. I am not 
asking you, because this is a policy question, but it strikes 
me, recognizing that tax dollars that go to grantees is 
fungible, and so on the one hand, in many respects, you could 
argue, and I think very logically, that grant money is used to 
bite the hand that feeds it so to speak, and I just think if 
you were to walk out into any main street in America and say do 
you think it is right to give grants to entities that turn 
around and sue the Federal government regardless of what that 
percentage is, do you think that is correct, and I think that 
probably in most cases you would not get an affirmative answer 
that that is the correct thing to do, yet that is where we are. 
So that information that you give us would be very, very 
helpful I think in that regard regarding the way that I see 
this and probably most Americans see it.
    One issue, we heard about the gray wolf and of course we 
amended the Endangered Species Act as it relates to the gray 
wolf, and when that recovery act was put in place all of 
Washington and Oregon were listed together. Now Washington, 
well, I know Washington, I can't specifically say Oregon, but I 
know Washington now that area is separated by a highway. Now, 
if it is so hard to make a delisting in a larger area, how is 
it going to be easier to make a delisting now when we are 
separating those areas by highways?
    Mr. Ashe. Mr. Chairman, we made a delisting determination 
based upon the distinct population segment that we had listed, 
and so when we delisted the wolf we delisted those portions of 
Oregon and Washington that were within that distinct population 
segment, and so that leaves, as you know, the western two-
thirds of the state wolves potentially in a listed status.
    We are currently doing a status review for that area and so 
what we would do is again look at the question of whether that 
constitutes a separate and distinct population unto itself, and 
if not, whether we should consider delisting the wolf in that 
portion of the state. The State of Washington has just 
developed a very strong wolf management plan for the wolves in 
Washington, so we are very much encouraged by the 
professionalism of the state.
    The Chairman. Would that action that you just described be 
subject to litigation?
    Mr. Ashe. It would be.
    The Chairman. It would be subject to litigation.
    Just to follow up, and I will make an editorial comment, 
and this follows the line of questioning of Mr. Lamborn in the 
last panel. The gray wolf, as you know, is thriving in two 
other states, and presumably it is of the same species. You 
talked about subspecies. I might have a philosophical argument 
with that. But again, if you walk down the street of anybody in 
America and say the gray wolf, which resides in the Pacific 
Northwest, is that part of a larger same species, I think you 
would probably in more cases than not get an affirmative answer 
that it is.
    So my time has expired. I recognize the gentleman from the 
Northern Marianas, Mr. Sablan.
    Mr. Sablan. Thank you very much, Mr. Chairman, and good 
afternoon, gentlemen.
    I have a question for you and I will go directly to Mr. 
Schwaab actually, and thank you what you do, sir. I met with 
your deputy regional director yesterday. I met one of your 
staff from Oregon, yes, from Fish and Wildlife, and I asked him 
for something. I would appreciate a response to that 
eventually.
    But Mr. Middleton, one of our earlier witnesses who is a 
lawyer, said earlier that hatchery and wild salmon should be 
counted together. So, if the salmon population, for example, 
were composed completely of hatchery fish, wouldn't it be more 
vulnerable to collapse, causing these devastating impacts to 
fishermen and to the coastal communities?
    Mr. Schwaab. Thank you, Mr. Sablan. If I could just expand 
a little bit on some of what was discussed. I mean, the short 
answer to your question is yes, hatchery fish without the 
genetic diversity that naturally occurs could lead to increased 
vulnerability and risk, particularly given the kinds of natural 
variability and oscillations that occur over periods of time 
that we heard referenced earlier.
    I would say that we do in many cases and have over the 
years worked very closely with hatchery operations to improve 
the rearing methods with respect to the kinds of genetic 
diversity that you seek that would allow and does allow in many 
cases hatchery fish to be counted in some of these listing and 
recovery decisions. So the situation is not quite as cut and 
dried as hatchery fish don't count. Appropriately reared and 
appropriately diverse genetically fish do count in many cases 
for the kind of work that we are talking about here today.
    Mr. Sablan. All right, thank you.
    Let me ask you, Mr. Schwaab and then Mr. Ashe, the same 
question. Is there a direct relationship between your budgets 
and your ability to protect species? If you were provided with 
more funding, for example, would you be able to do more to 
recover species and work with the states and the territories 
and stakeholders to implement the goals of ESA?
    Mr. Schwaab. Yes, sir. In addition to of course the listing 
and recovery planning discussions that have been much in front 
of the Committee here today, we work extensively both directly 
and with partner organizations, including states, tribes and 
territories too, to foster habitat recovery, habitat 
restoration and protection that is sort of the underlying 
foundation on which all of these species protection and 
recovery efforts depend. We have worked very hard and frankly 
struggled to provide the kind of funding necessary, 
particularly to support partners in some of those habitat 
restoration efforts.
    Mr. Sablan. Thank you. Mr. Ashe?
    Mr. Ashe. I would agree, and I would point you to the 
President's proposed 2012 budget, and I think in the 
President's budget we proposed increases across the fabric of 
our programs that would support endangered and threatened 
species recovery both within our endangered and threatened 
species program but also in areas like the state and tribal 
wildlife grants. The President proposed $95 million for the 
state and tribal wildlife grants so that it would help continue 
to support and expand capacity within our state and territorial 
partners and also full funding for the land and water 
conservation fund so we would have the ability to go into great 
landscapes like the Rocky Mountain Front in Montana and work 
with the ranching community there to put easements on top of 
their property so they can continue a way of life, but we can 
also work with them in the conservation of species like the 
grizzly bear and the bull trout.
    Mr. Sablan. Yes. My time is running out, so let me, Mr. 
Ashe, let me continue with you. Mr. Miller earlier, who was 
seated in the chair right next to you, with the Public Utility 
District No. 2, Pacific County in Washington State, he earlier 
said that hoping to avoid repeating what happened with the 
Radar Ridge Energy Project, is the Radar Ridge the exception or 
the rule, and do you have any examples of how consultation 
processes on renewable energy projects went smoothly?
    Mr. Ashe. I do believe Radar Ridge is quite the exception. 
I think we had a situation there where we had a project 
proponent who proposed a project in absolutely the worst 
location they could propose it in from the standpoint of 
marbled murrelets and then presented us with a timeframe with 
which we simply could not work within and asked us to do a 
categorical exclusion under the National Environmental Policy 
Act which we could not support administratively. And so I think 
that does represent the exception.
    In my testimony we make reference to the Ruby Pipeline, 
which will employ more than 5,000, is employing more than 5,000 
Americans now in the construction of that project. That is an 
example of where an applicant came to us early, worked with us 
diligently and got the approvals that were necessary to put 
that project on the ground. In my oral statement, I mentioned 
the Ivanpah Project, solar project, which was another example 
of a very difficult project but which we were able to get 
across the finish line because we had an applicant who was 
willing to work with us and do what was necessary.
    The Chairman. The time of the gentleman has expired. Maybe 
we ought to throw the Keystone Pipeline in there since we are 
talking about pipelines. The gentleman from Nevada, Mr. Amodei.
    Mr. Amodei. Thank you, Mr. Chairman.
    Mr. Schwaab, coming from a state without a coastline, you 
can go ahead and relax for the next five minutes, OK?
    Mr. Ashe, thank you for coming today. I was reviewing your 
statement and I want to thank you for including the benefits of 
conservation, talking about some economic data in there, and 
you had some stuff talking about folks who fished, folks who 
hunted, that sort of thing, but I didn't see any tie in there 
to Federal lands. Was that just generic data for the U.S. or 
was there a tie to Federal lands in there?
    And let me tell you why I ask the question, and it is not 
going to come as a surprise to you, but as a district that is 
85 percent owned by the Federal government, many of your 
partners on the Federal side, I just wanted to see if there had 
been a look at what the impact was, especially in a 
jurisdiction like that district which is so pervasively under 
Federal ownership.
    Mr. Ashe. The data that was referenced is the survey, five-
year survey on fishing and hunting, and that is all lands 
across the country.
    Mr. Amodei. OK. Thank you. And I want to thank you for 
mentioning that what us old folks in Nevada call the sage hen, 
but I believe back here it is known as the sage grouse, for 
your continuing work on that and look forward to continuing 
that with you.
    There was some discussion earlier about conservation plans, 
and these are my words, nobody else's, but how living of a 
piece of your management tools they are, and I will do my own 
homework, won't take this time, but how much of what you do in 
conservation plans is a result of existing statute in terms of 
the ESA, or is that pretty much handled by regulation or local 
policy, or what is the basis for when you revisit, if there are 
triggers for revisitation, just how that process works.
    Mr. Ashe. You mean if we delist a species?
    Mr. Amodei. I am just talking about modifying the plan 
because we had a lot of discussion earlier about listing. It is 
a 150-year timeframe, and that is what it is. We didn't get 
there overnight and that sort of stuff. So if somebody was 
interested in saying, hey, congratulations, and by the way I 
was gratified to see that at least for the examples it is like 
those were meeting mission if you will, whether there is any 
sort of automatic trigger or what the appropriate mechanism is, 
if it exists in statute, for saying, hey, Mr. Director, can we 
take a look at the XYZ species based on the information we 
believe is available at the moment.
    Mr. Ashe. Well, with regard to species, we do five-year 
status assessments, so we look at the status of a species every 
five years. With regard to conservation agreements, so when we 
are working with private landowners or companies and we put 
together a candidate conservation agreement with assurances the 
important part is the ``with assurances'' part, and that is 
that if that species is listed, so say sage grouse, if we were 
to list the sage grouse and we had a candidate conservation 
agreement with assurances with a landowner, then they have 
assurance that what they are doing in the context of their 
agreement is good for the duration. We don't come back to them 
at a later point in time and do a reassessment and ask them to 
do more.
    Mr. Amodei. OK. And finally you had mentioned in your 
earlier testimony how important it is the timing of somebody 
showing up to you with a potential project in terms of working 
from the inception. Is that something that just happens to be 
folks who are plugged in appropriately that show up early in 
your offices out there, or is there anything, or would it be 
helpful I guess to have a tool that requires a preapplication, 
whatever the right nomenclature meaning is, to get on the radar 
screen if you will early as opposed to you want it bad, you get 
it bad?
    Mr. Ashe. Right. It is always better to have better 
information, and I think the tragedy in the Radar Ridge case is 
we had that information, so it was clear that that project was 
being proposed in an area that had been identified in the 
state's habitat conservation plan as an area of high importance 
for the marbled murrelet. But where we have that information, 
that is the most important thing. If we can get a project sited 
properly at the get-go, we are much more successful at getting 
the project across the finish line.
    I mentioned landscape conservation cooperatives. That is 
one of the tools that we have proposed to pull together states 
or data, working with our state and other partners so that we 
will have better capacity in the future to do just that and 
start, as Bob Abbey in the BLM says, be smart from the start.
    Mr. Amodei. Thank you.
    The Chairman. Will the gentleman yield the final minutes?
    Mr. Amodei. Yes.
    The Chairman. Director Ashe, you said that that was a badly 
placed project here, and as a condition of Energy Northwest 
siting that project, they had to do extensive review with the 
Washington State Department of Natural Resources specifically 
on how it would interact with ESA and the marbled murrelet, and 
the results of that environmental assessment that was peer-
reviewed I might add, peer-reviewed, the studies concluded that 
the project was not likely, not likely to have a significant 
adverse impact on the marbled murrelets or other sensitive 
species, and that was a peer-reviewed study.
    So I just want to make that part of the record because your 
testimony suggested exactly the opposite, and this was a 
condition by which Energy Northwest had to proceed forward on 
the siting of this project.
    The Chair recognizes the gentlelady from Hawaii, Ms. 
Hanabusa.
    Ms. Hanabusa. Thank you, Mr. Chair. Thank you both for 
being here.
    In Administrator Schwaab's position statement, he says that 
the NMFS and the U.S. Fish and Wildlife Services are to list 
species and to determine them to be endangered or threatened 
and to subsequently protect those species and their habitats, 
and that is a mandate for both of your departments.
    Now, in that light, when I reviewed Director Ashe's 
statement, Director Ashe, you talk about habitat conservation 
plans under the ESA, and then you also mention ESA conservation 
action plans with the Bureau of Land Management and various 
other parts of the Department. I am just curious as to whether 
these are specific terms of art and they refer to different 
kinds of conservation plans.
    Mr. Ashe. A habitat conservation plan is a statutory term 
of art, so in Section 10 of the law where we are authorized to 
issue permits for incidental take associated with otherwise 
lawful activities, so if you are a private party and were 
undertaking an activity that was otherwise lawful and would 
take endangered species, we can authorize you to do that if you 
develop a habitat conservation plan to minimize the effects of 
that take.
    And a candidate conservation agreement is an 
administratively created instrument that allows us to work with 
a Federal agency or another party to promote conservation of a 
candidate species before it gets on the list, so it is a way 
that we try to get ahead of the curve and try to deal with 
species conservation issues early.
    Ms. Hanabusa. So when we hear the words ``endangered 
habitat area'', is that different from the habitat conservation 
plan when it is designated endangered habitat in other words?
    Mr. Ashe. Critical habitat.
    Ms. Hanabusa. Critical habitat, right.
    Mr. Ashe. Critical habitat is another function of the law. 
When we list a species the law asks us to identify the critical 
habitat for that species, and generally the law commands us to 
do that. There are some cases in which we can decline to if we 
determine it is not prudent to determine critical habitat, but 
in general the law asks us to define critical habitat.
    Critical habitat is not a protected area. It doesn't set up 
a refuge or a reserve of any kind. It simply is an indication 
of what are the physical attributes of habitat that are 
important for the survival and recovery of the species, and 
there are restrictions against Federal agencies for adversely 
modifying or destroying critical habitat, so it doesn't apply 
to private landowners unless they are applying to the Federal 
government for some form of assistance or authorization.
    Ms. Hanabusa. So, in Administrator Schwaab's statement, he 
talks about the ESA and 16 U.S.C. Sec. 1531 through 1543 that 
requires the list and then their habitat. So that is what you 
are talking about now, the endangered habitat. I mean the 
critical habitat. So now we have critical habitats which are 
just a designation, and then we have habitat conservation 
plans, and there is this ESA conservation action plan that you 
also referenced. So out of all of those, which is the most 
restrictive plan that one could be subjected to?
    Mr. Ashe. I don't think it is--I mean, they are all 
actually--habitat conservation plan is a permissive plan, so 
when you develop a habitat conservation plan, it allows you to 
take, to do something that is otherwise unlawful to take an 
endangered species, so it is not a restrictive plan, it is a 
permissive plan.
    A critical habitat is not a plan at all. It is simply a 
factual identification of habitat that is critical to the 
survival and recovery of the species, so it is not a plan, it 
is an identification.
    A candidate conservation agreement I would say again is not 
a plan. It is an agreement between two parties, the U.S. Fish 
and Wildlife Service and the Bureau of Land Management or the 
U.S. Fish and Wildlife Service and a private landowner, and so 
those are voluntary agreements.
    Ms. Hanabusa. Thank you. Mr. Chairman, my time is up, but 
could I request that they sort of give us a chart that I can 
easily follow?
    The Chairman. Absolutely. I think that would be very, very 
helpful and I would ask you to provide that again for the full 
Committee, and we will certainly see that you all get it. That 
is a good suggestion.
    Ms. Hanabusa. Thank you very much.
    The Chairman. The gentleman from California, Mr. 
McClintock.
    Mr. McClintock. Thank you, Mr. Chairman.
    Mr. Schwaab, I am sorry I wasn't here for your testimony, 
but I understand you are one of those folks who believes that 
fish hatcheries are a really bad idea because of the effect on 
natural selection. Would you elaborate on that?
    Mr. Schwaab. Thank you, Congressman. Actually what I said a 
few minutes ago is that contrary to some of the earlier 
testimony there are a number of circumstances under which 
hatchery-reared fish can be and are included in listing and 
recovery decisions.
    Mr. McClintock. Well, that is certainly not true in my neck 
of the woods. Everything from the Klamath to the Sacramento 
Delta has been severely impacted by regulatory restrictions 
that could easily be met if we simply in the case of the 
Klamath, simply recognize the 5 million salmon smelts that are 
being produced every year at the Iron Gate Fish Hatchery, 
17,000 of which are returning as fully grown adults to spawn, 
presumably after years of the laws of natural selection working 
on them, provides a much larger genetic pool for those forces 
to work upon, which is the very essence of natural selection.
    Mr. Schwaab. So we have worked very closely with hatchery 
operators to improve the use of hatchery operation in a way 
that----
    Mr. McClintock. You are trying to tear down the Iron Gate 
Fish Hatchery in the name of declining salmon populations. That 
is what will cause the catastrophic decline in the salmon 
population.
    Let me ask you this. What is the genetic difference between 
a hatchery fish and a fish born in the wild?
    Mr. Schwaab. So you mentioned earlier, sir, some of the 
Pacific oscillations and the decadal cycles that we see at 
play, and I think one of the important things to recognize is 
that salmon species, in particular across the West Coast, have 
evolved over thousands and thousands of years under those kinds 
of oscillations and have developed genetic mechanisms and the 
kind of genetic diversity that allows them to rebound and 
recover as those changes occur.
    Mr. McClintock. Which are repeated in the genetic 
composition of the hatchery fish. I will put the question to 
you again. Is there any genetic difference between a hatchery 
fish and a fish born in the wild?
    Mr. Schwaab. There absolutely can be. It depends upon the 
parentage.
    Mr. McClintock. And then depends upon the laws of natural 
selection working on those genetic differences to improve the 
species. I mean, that is the whole essence of evolution.
    Mr. Schwaab. But if you constrain that population down to 
where it largely emerges from a small set of parents, then you 
have naturally eliminated a lot of that genetic--that has 
evolved.
    Mr. McClintock. Would you then recommend that we destroy a 
fish hatchery such as I have just described in favor of 
improving the lot of salmon populations on the Klamath?
    Mr. Schwaab. So I would recommend that where we are using 
hatchery-based fish to enhance natural populations that we do 
that in a genetically appropriate and responsible manner, and 
where we are using hatchery fish solely to enhance commercial 
fishing opportunity or recreational fishing opportunity that we 
recognize the limitations that those fish face in dealing with 
the kind of long-term declines that you referenced.
    Mr. McClintock. Well, there is no commercial attractiveness 
of the Delta smelt, and yet meeting ESA requirements in the 
Sacramento Delta have absolutely decimated Central Valley 
agriculture. I am sure you are aware of that. Instead of 
imposing all of these extraordinarily expensive restrictions, 
which have by the way had little or no effect on the Delta 
smelt population, simply providing the fish hatcheries 
necessary to enhance that population would assure an abundance 
of this species with the genetic diversity necessary for the 
laws of natural selection to apply.
    Mr. Schwaab. I think you have the potential in the use of 
hatcheries for restoration if you are attentive to those 
genetic diversity challenges.
    Mr. McClintock. I think here is the nub of the problem. 
There is a certain lack of reasonableness, a certain lack of 
flexibility and absolutism to the point of political extremism 
with which these laws are being applied that are devastating 
our economy and doing little, if anything, to improve the 
populations which we have within our power to improve simply by 
doing what we did to bring back the buffalo population, the 
California condors, African elephants. You can go through a 
long, long litany I suppose dating back to the earlier 
testimony involving Noah's ark. Noah did bring those animals 
into his care, brought them into captivity. I don't recall 
anything specifically in the text about it, but I have to 
assume since there was two of everything there was some 
breeding going on in that state of captivity, and it worked out 
just fine.
    Mr. Schwaab. I must say, sir, that is a different Noah.
    The Chairman. The time of the gentleman has expired. The 
gentleman from Florida.
    Mr. Rivera. Thank you, Mr. Chairman. I recognize as well 
the importance of preserving wildlife for future generations of 
Americans. However, I also believe there are some areas in the 
Endangered Species Act that need to be enhanced and perhaps 
improved upon, so I thank the Chairman for holding this 
important hearing. My statement and my questions will be 
directed to Director Ashe.
    I am honored to represent Everglades National Park along 
with Big Cypress National Preserve in my congressional 
district. The concern I have heard from some in my district and 
particularly conservationists is that the U.S. Fish and 
Wildlife Service is more focused on individual species 
management as opposed to multispecies management and that the 
Service has been practicing what I have heard referred to as 
defensive management out of fear of litigation, which often 
occurs, and let me provide you just an example of that.
    Behind me we have the Everglades snail kite on the left and 
the Cape Sable Seaside sparrow on the right. Both are 
endangered species which live within the Everglades. The kite 
eats snails obviously and requires high water flows for its 
food source to flourish. However, the sparrow needs low water 
flows during its nesting season. The management of the habitat 
for these two endangered species is very complicated because 
the species have competing needs.
    Efforts to assist the sparrow have dramatically reduced the 
snail kite's primary food source in its critical habitat, the 
Florida apple snail. As a result, I have been informed that the 
population of the snail kite has reduced from 3,400, 
approximately in 1999, to approximately 660 now, but the 
sparrow is currently not in its traditional grounds, which no 
longer exists, having moved into areas near the kite. 
Conflicting lawsuits have resulted, slowing down progress in 
Everglades restoration projects that will assist other 
endangered plants and wildlife.
    So I support preserving the sparrow, but we shouldn't be 
creating a false habitat when it imperils other endangered 
species and the overall ecosystem of the Everglades. The 
priorities should be trying to restore balance to the native 
environment through multispecies management and where possible 
restore the habitat and numbers of the sparrow.
    So I want to ask, first of all, are there other instances 
among terrestrial or marine listed species with similar 
conflicts, and if so, how has the Service resolved these 
conflicts?
    Mr. Ashe. We do deal, Mr. Rivera, and I know you meet a lot 
of people, but I remember meeting you out on the Tamiami Trail 
with Senator Salazar, and in the Everglades in particular, we 
have dozens of listed species, and so what we are trying to do 
is restore a system that has been greatly modified by human 
activities, and so the restoration of that ecosystem is made 
difficult by the fact that we have many listed species, some of 
whom can compete for the same habitat.
    So I agree with your objective that what we need to do is 
we need to restore an Everglades ecosystem that has balance and 
wherein we can do the best job that we can do to ensure the 
survival and recovery of a diversity of species, including the 
two that you mentioned. It is a difficult task, as you know.
    We have a similar situation, I know Chairman Hastings is 
familiar with it, with the spotted owl. You mentioned the 
barred owl. They are not two listed species, but we have a 
listed species which is declining and a species that is moving 
into its territory and competing with it for the available 
habitat, and so increasingly we are seeing these kind of what 
we would call intraspecific competitions between species. They 
make our job more difficult, but the task remains.
    Mr. Rivera. One other difficult issue that we have in the 
Everglades is also regarding the Burmese python, a snake that 
you will see behind me measured 17 feet long, and an analysis 
performed on the stomach contents of this nonnative snake found 
the remains of various endangered birds and mammals native to 
the Everglades. How does the Service handle the preservation of 
the native system when these invasive species are present?
    Mr. Ashe. Thank you. I think the Burmese python is 
indicative of the great challenges. The Service of course has 
proposed a rule to list the Burmese python as an injurious 
species under the Lacey Act, which would prevent its further 
importation into the United States. We are working in 
partnership with the State of Florida to control the existing 
populations of Burmese python. It is a great challenge, but 
your question has underscored two of the great challenges that 
I mentioned before in endangered species conservation, which is 
the habitat and managing and restoring the habitat and 
controlling exotic species invasions. Those are two of the 
greatest challenges that are facing us today, and the Burmese 
python is indicative of that.
    Mr. Rivera. Thank you very much. And, Mr. Chairman, just 
finally I would like to let you know that several of my Florida 
colleagues and I recently wrote to the Administration 
requesting that they finalize their listing of nine species of 
large constrictor snakes as prohibited injurious species under 
the Lacey Act, and I would like to ask unanimous consent to 
allow that letter to be submitted for the record.
    The Chairman. Without objection, it will be part of the 
record.
    [The letter submitted for the record by Mr. Rivera 
follows:]

[GRAPHIC] [TIFF OMITTED] T1642.004

[GRAPHIC] [TIFF OMITTED] T1642.005

                                ------                                



    The Chairman. I thank the gentleman. The time of the 
gentleman has expired, and the Chair recognizes the gentleman 
from New Jersey, Mr. Runyan.
    Mr. Runyan. Thank you, Mr. Chairman. Gentlemen, thank you 
for your testimony.
    In Fiscal Year 2011, the Fish and Wildlife Service 
indicated that it spent 75 percent of its budget for resource 
management allocation for critical habitat in listing on, and I 
quote, ``substantive actions required by court-ordered or 
settlement agreements resulting from litigation.'' Mr. Schwaab, 
can you identify what percentage of the NMFS's budget was spent 
on the same actions related to court-ordered settlements and 
litigation?
    Mr. Schwaab. Thank you, Mr. Runyan. I can give you some 
data. Most of our listing activity has been not driven by 
court-ordered action. However, they have originated from 
external petitions. I can tell you that in Fiscal Year 2011 we 
expended about $8.8 million on listing activities, $34 million 
on interagency consultations and $37 million on recovery 
planning and implementation. Many of those expenditures had 
some relationship to ongoing court challenges, but what I can't 
do is parse them out very explicitly in relation to particular 
challenges or in any more detail than that.
    Mr. Runyan. So you are saying it is not possible to extract 
those numbers?
    Mr. Schwaab. Well, so, for example, when we are involved in 
an interagency--there are many interagency consultations that 
we are engaged in that are either driven by or affected by some 
kind of litigation activity, and the challenge would be in 
trying to sort of--most of that activity would occur in some 
fashion anyway. There may be additional activities that are 
required as a result of court action or there is activities 
that might be directed in a certain way, but to parse them out 
in that way would be hard.
    Mr. Runyan. Well, how about just directly from a court-
ordered litigation?
    Mr. Schwaab. Mr. Runyan, we could go back and try to see if 
there were a way to parse that out, but I don't think as I sit 
here today I could give you a correct answer.
    Mr. Runyan. I would appreciate it if you would try and 
submit that to the Committee because, that being said, 
obviously at the bottom of all this is if you have a true stock 
assessment it is really hard to argue anything, and I think 
that is kind of what is going on here today is we are putting a 
lot of money and paying out litigations and not having the 
solid science to really fend off a lot of that stuff, and I 
think this Committee has dealt with that a lot throughout this 
year.
    Mr. Schwaab. So just to clarify, you know, most of the 
court-related listing activity is really about schedule and 
adhering to timeframes. Most of the recovery planning activity 
and more explicitly some of the consultations that relate to 
other agency actions ultimately become the focal point of some 
court action, but only to drive one outcome versus another, and 
it involves particularly that sort of negotiation if you will 
and interagency discussion around reasonable and prudent 
alternatives, which does take into account a lot of 
socioeconomic factors.
    Mr. Runyan. And I understand that, but I think in a way I 
am kind of saying it is kind of a diversion of funds if you 
kind of catch where I am coming from, but I also had another 
question dealing with the Atlantic sturgeon along the entire 
East Coast. You have never truly, and I know you will rebut, 
you have never truly conducted a fishery stock assessment, and 
I know you did a survey in 2007, but there were no true stock 
data inputs, and I just want to see your justification for 
proposing the sturgeon to be on there even though you didn't 
bother to check this since the last time you decided not to 
list it in 1998.
    Mr. Schwaab. Thank you, Mr. Runyan. So I am not suggesting 
that we have done a complete stock assessment on Atlantic 
sturgeon. When we receive a listing petition we undertake that 
evaluation based upon the best scientific and commercial 
information available. We did find there was reasonable merit 
in going through a full listing evaluation. That listing 
evaluation then entails putting together a team of interagency 
scientists to look at the best available information. They did 
use the two available population estimates, one for the Hudson 
River population from 1998 from the New York Department of 
Environmental Conservation and one from the Altamaha River from 
2006 by scientists at the University of Georgia. They 
ultimately formed the primary pieces of information that were 
used in proposing a listing decision, which was put out for 
public comment and is still under review pending final action 
within the Agency.
    Mr. Runyan. Thank you for that.
    The Chairman. The time of the gentleman has expired.
    I just want to say I think the line of questioning that Mr. 
Runyan is pursuing is very, very important to the decision we 
are making because the title or the purpose of this hearing was 
to look at litigation and the costs associated with that as it 
relates to the Endangered Species Act. Congress obviously sets 
the policy and the Executive Branch carries it out, and part of 
our oversight is to see how well that is being done.
    So I think the line of questioning that Mr. Runyan is 
suggesting is very important and, Mr. Schwaab, you respectfully 
said you would try to do that. I would ask you to do that, and 
if you cannot, be open and transparent with us where the 
problems are and we will try to work with you to get those 
answers because I think that is very important.
    This will conclude the first in a series that we will take 
a long and hard and fair look at the Endangered Species Act 
because we want to see how well it is working, where it is 
failing and where it is falling short.
    I want to emphasize this point. It has been over two 
decades or nearly two decades since we last reauthorized the 
Endangered Species Act, and to use an analogy I used earlier, 
if you walked out to any main street in America and said that 
there is an Act on the books that has not been reauthorized for 
20 years, should that Act still be in place, and I bet you 
would get well over 95 percent of the people say, for goodness 
sakes, if it is not reauthorized, why is it on the books?
    Now the obvious answer to that is the process by which we 
have done every year and kicked the issue ahead. I totally 
recognize that. But this is a common sense issue and common 
sense I think answers that the American people want when we 
look at these acts that have a lot of controversy in certain 
parts of the country, and that is what we are endeavoring to 
look at when we have these hearings here.
    So, with that, I want to thank the witnesses, and Mr. 
Schwaab, again, in your opening statement, your last line was 
an open invitation. Believe me, you will have that invitation 
in the future, and I appreciate your volunteering for service 
again, and, Director Ashe, you may be in that same thing.
    So, with no further business to come before the Committee, 
the Committee stands adjourned.
    [Whereupon, at 1:35 p.m., the Committee was adjourned.]

    [Additional material submitted for the record follows:]

 Statement of The Honorable John Fleming, a Representative in Congress 
                      from the State of Louisiana

    Mr. Chairman, I want to thank you for starting this thoughtful 
conversation about the positive and negative features of the Endangered 
Species Act. It is particularly appropriate that today we will be 
discussing the impact that litigation has had on what many consider the 
most powerful environmental law in this nation.
    It has been more than 18 years since the authorization for the 
Endangered Species Act expired. During the past two Congresses, there 
wasn't a hearing on how to improve this Act.
    Based on this lack of attention, you would expect that the Act was 
working perfectly and the U. S. Fish and Wildlife Service and the 
National Marine Fisheries Service were making great strides in meeting 
the fundamental goal of this law which is to recover listed species.
    While there are a number of non-governmental organizations who love 
the Endangered Species Act because they are able to receive millions of 
dollars by filing hundreds of lawsuits against the Federal government, 
it has been a failure for the species they have petitioned to list.
    Let's examine the record. There are now 1,383 species in the United 
States that have been listed as threatened or endangered. Of that total 
21--let me repeat--only 21 species have been declared recovered and 
removed from protection under the Act. That is a recovery rate of 1 
percent. By any objective standard, the Endangered Species Act is 
failing to meet its statutory obligations and a modernization of this 
Act is long overdue.
    Before coming to Congress, I had a family medical practice in 
Minden, Louisiana. If after more than 30 years of practice, only 1 
percent of my patients had recovered from their illnesses or injuries, 
then I would have lost my medical license long ago. Yet, we continue to 
spend millions of tax dollars year after year, ignoring the problems 
and ignoring the fact that federal courts have been running the 
Endangered Species Act Program for nearly twenty years.
    I want to compliment Chairman Doc Hastings for his leadership and 
for his commitment to carefully examine this program in the coming 
months. Even Secretary of the Interior Ken Salazar has stated as 
recently as July 6th that: ``We need to have an endangered species 
program that does in fact work. There are changes and improvements that 
can be made to how we deal with endangered species.''
    I am prepared to work with my colleagues on both sides of the aisle 
to closely examine the Endangered Species Act and make common sense 
improvements.
    What I am not prepared to do is continue to ignore the problems and 
defend the indefensible. The Endangered Species Act was designed to do 
more than just list species--its fundamental goal is to recover species 
so they can thrive in the future and coexist with humankind..
                                 ______
                                 

         Statement of Felice Pace, Coordinator, Access for All

    On Tuesday December 6th the Resources Committee of the US House of 
Representatives held the first in a series of hearings on the 
Endangered Species Act. While this hearing was intended to focus on ESA 
litigation, testimony, questions and answers included a wide range of 
issues related to--and even some extraneous too--the announced subject 
matter. The hearing record remains open until December 16th. This 
testimony is submitted for the hearing record.
    Because I am a university trained economist (BA, Yale University, 
1969) and because Chairman Hastings said in his opening statement that 
he ``wants to hear more about how the ESA is impacting. . .job creation 
and economic development,'' I will focus these comments on the question 
of economic impacts of the ESA.
    The question of the ESA's economic impacts came up during the 
hearing in three key statements:
    In his opening remarks, Chairman Hastings said:
        The litigation mindset that is consuming the Endangered Species 
        Act has had significant job and economic impacts throughout the 
        West--unnecessarily pitting people against species. During 
        these challenging economic times, America cannot afford runaway 
        regulations and endless lawsuits.

        In the Pacific Northwest, the ESA-related litigation touches 
        nearly everyone--be it through federal judges determining the 
        fate of irrigated agriculture and clean renewable hydropower 
        dams, the impact of the listed spotted owl on timber 
        communities and jobs, the fear of litigation that has blocked 
        renewable wind projects, or uncertainty of whether predatory 
        wolves are endangered on one side of a highway but not the 
        other.
    During the question and answer period Chairman Hastings spoke about 
the economic impact of the ESA. He reached back to the 1990s and the 
Northern Spotted Owl conflicts. Chairman Hastings claimed that the 
Northern Spotted Owl ESA listing had devastated Northwest economies and 
led to the ``destruction'' of the timber industry in the region.
    The third major reference to the ESA's economic impact came from 
the testimony of Attorney Karen Budd-Fallen. Ms Falen's statement 
included this:
        Contrary to some belief, the implementation of the ESA has real 
        impacts on real landowners, ranchers, farmers, businesses, 
        employers and others who are a vital part of America's present 
        and future. Rather than saving species and conserving their 
        habitats, the ESA is used as a sword to tear down the American 
        economy, drive up food, energy and housing costs and wear down 
        and take out rural communities and counties.
In the testimony below I examine each of the three claims:

1. ``The ESA has had significant job and economic impacts throughout 
        the West''
    I have examined the economic literature on the subject of the 
economic impacts of the ESA. The overwhelming preponderance of extant 
studies has found either no significant impact or a positive 
relationship between ESA listings and standard measures of economic 
development.
    One of the most on point studies is one conducted by MIT professor 
Timothy Meyer in 1995. Meyer examined ``The Economic Impact of the ESA 
on the Agricultural Sector'' and concluded:
        The key observation from the tests is that all three time 
        periods suggest a positive relationship between endangered 
        species listings and state economic performance in the 
        agricultural sector. Each additional listing of species is 
        associated with an increase in agricultural gross state product 
        during the period of roughly 0.05% to 0.09%. Even if it were 
        real this effect is so small that it is of no policy interest. 
        Moreover, the statistics suggest we would be wise to assume 
        that no systematic relationship exists at all (i.e., the 
        results are statistically insignificant). Nevertheless, this is 
        strong evidence that the functional relationship between 
        endangered species listings and agricultural performance cannot 
        be negative as the opponents of the Endangered Species Act 
        claim.
    In 2006 Tim Kroeger and Frank Casey published ``Economic Impacts of 
Designating Critical Habitat under the U.S. Endangered Species Act: 
Case Study of the Canada Lynx (Lynx Canadensis)'' and concluded:
        The agencies implementing the ESA generally do not quantify the 
        benefits of designation in their economic analyses, arguing 
        that uncertainties associated with monetary quantification of 
        benefits are too large. We examined that argument in a case 
        study of critical habitat designation for the Canada lynx. We 
        found that well-established valuation methodologies allow 
        quantification of many of the benefits of designation. We 
        further found that expected benefits of designation surpass 
        expected costs in seven of our eight scenarios. This 
        underscores the importance of including benefits in economic 
        analyses of critical habitat designation. Otherwise, 
        conservation decisions tend to be dominated by cost 
        considerations, which may result in suboptimal choices for 
        society.
    The inescapable conclusion from examination of the economic 
literature is that--at the level of states, regions and the nation as a 
whole--rather than being the job-killer which opponents claim, the 
Endangered Species Act has either had no significant economic impact or 
has had a positive impact. Based on the empirical studies in the 
literature, many of this nation's independent economists have concluded 
that the ESA is a job creator.

2. The Northern Spotted Owl's ESA listing ``devastated'' the Pacific 
        Northwest and ``destroyed'' the timber industry in the region.
    The claim that the ESA ``destroyed'' the timber industry in the 
Pacific Northwest is, of course, hyperbola. The timber industry remains 
a major industrial sector in the Northwest and Northern California. But 
the general claim of negative impacts to the economy is also not backed 
up by economic data. While jobs were lost in the timber industry, the 
region's economy diversified and is now more resilient to changes in 
the broader economy.
    I've lived, worked and raised a family in Northwest California 
within the range of the Northern Spotted Owl since 1975 and I have 
studied the region's economy in depth. In the twenty years before 
restrictions on federal land in response to the Owl's listing, 
unemployment in rural Northwest California counties was consistently 
double the rate for California as a whole. Employment was erratic as 
timber dependent economies weathered boom and bust housing markets. 
Since protection for the Owl reduced logging on the region's national 
forests, however, rural county unemployment rates have averaged only 
50% above the state rate. . .not the 100% that was experienced 
previously. This indicates that these economies are better off now 
relative to the state as a whole and also that rural Northwest 
California communities are now much less impacted by boom and bust 
changes in housing markets.
    From an economic perspective, the Northern Spotted Owl was a 
catalyst for economic diversification and increased economic 
resiliency, i.e. for positive economic developments within Northwest 
and Northern California communities.
    Of course, the fact that the Northern Spotted Owl was a catalyst 
for positive economic developments--i.e. for the diversification of 
economies which were over dependent on a single, unsustainable, boom-
bust industry--does not mean that there were no negative economic 
impacts. Indeed there were negative impacts. I've had friends and 
neighbors who are loggers and who have had a harder time finding work 
since federal timber sale levels were reduced. And I know mills and 
mill owners who went out of business because they were over-dependent 
on federal timber or could not afford to retool their plants for the 
second growth economy.
    That said, the negative economic effects attributed to the Northern 
Spotted Owl ESA listing were not what the Timber Industry and many 
politicians claimed and still claim they were. Furthermore, these 
changes were going to come anyway once the Old Growth was liquidated. 
Finally, negative impacts were and are dwarfed by the durable positive 
economic impacts that resulted.
    Unfortunately, positive economic news does not really matter much 
if yours is the job that was lost or if yours was the mill which 
closed. It remains a fact of life, however, that the closing of one 
Simplot potato processing plant in Idaho--not to mention the decision 
of a timber corporation to ship logs to China--causes more economic 
dislocation and more job losses than the Northern Spotted Owl caused on 
balance.

3. Budd-Falen claims
    In her testimony and in her regular memos and guest opinions 
attacking the ESA Karen Budd-Falen repeats time and again that the ESA 
is devastating rural America. When, as in her testimony, Ms. Budd-Falen 
says that ``the ESA has real impacts on real landowners, ranchers, 
farmers, businesses, employers and others who are a vital part of 
America's present and future'' I can agree with her.
    If the ESA is being implemented properly, those who own or control 
land which contains critical habitat for an ESA-listed species could 
have to change some of their practices to accommodate the species. I 
would argue that if we are going to have a healthy environment capable 
of sustaining economic well being maintaining and restoring the habitat 
on which biodiversity depends is a basic landowner responsibility. It 
is up to Congress, however, whether or not to provide compensation to 
those who shoulder this responsibility.
    I do, however, reject the assertion that the ESA is putting a 
significant number of folks out of business and I challenge Ms. Budd-
Falen to present the actual cases where her clients have been put out 
of business as a result of the ESA. Where is the data; where even are 
the case histories? Nowhere in her testimony--and nowhere in the 
hearing or in the hearing records that I've seen--is there one shred of 
evidence to back up Ms. Budd-Falen's claims of economic devastation.
    What is true is that--in the rural West where Ms. Budd-Falen and I 
live--there is great fear of the ESA. This fear has been nurtured and 
encouraged by the Farm Bureau Federation, Ms. Budd Falen and others--
including many of the West's rural legislators--for the past 30 years 
or so. The shrill claims of devastating economic impacts repeated over 
and over for so many years have had an impact.
    Yes, many rural westerners do believe that the ESA is a job-killer 
and many fear the ESA coming to bear on them, their jobs and their 
property. But the fear is not reality-based. Furthermore, I think it is 
clear that those who would demonize the ESA for political or economic 
gain are responsible for ESA fear. If these folks really care about 
rural westerners they should not be cynically creating and manipulating 
these folk's fear.
    I would like to also address the testimony submitted by Doug 
Miller, General Manager, Public Utility District No. 2, Pacific County. 
Mr. Miller described his district's experience with the ESA. I do not 
doubt or question his experience. I would ask, however, what was his 
expectation going in and was that realistic?
    The agencies responsible for implementing the ESA have sufficient 
management tools in the ESA toolbox and they have additional tools 
which can be used to protect habitat and preclude the necessity for 
listings. But the existence of tools is no guarantee. Indeed tools can 
be used well or poorly with predictable results. Two key factors 
usually define the difference between effective and unsuccessful use of 
ESA planning and management tools:
          A conservation management plan is likely to fail if 
        you try to use it to get around the law. It is ESA law--as 
        passed by Congress and in accord with regulations adopted to 
        implement the law--which remains the yardstick. If you don't 
        meet the letter and spirit of the law, it is the obligation of 
        the agencies to reject your plan and it is the mission of some 
        other citizens to challenge that plan.
          If you don't have the right people in the room, you 
        are asking for trouble. Attempts to get around the ESA law and 
        the citizen groups which are dedicated to enforcing it have a 
        high probability of failure; adopt such strategies at your own 
        risk. If you want success in managing ESA species for which you 
        have responsibility as a company or landowner, work with the 
        organizations which are dedicated to preserving those species. 
        Most of those organizations are ready and willing to work with 
        you IF you are in good faith and intend to meet your legal 
        obligations.
    In conclusion, I would like to take note of the response of FWS 
Director Don Ash to a question from a member of the committee. When 
asked about his biggest challenge in implementing the ESA, Director Ash 
told the committee that habitat loss to development--not litigation--is 
the single greatest challenge facing the Service. Mr. Ash also defended 
the citizen suit provisions of the ESA stating that citizen enforcement 
holds government to the ``highest standards.''
    We--the American People--and you--our elected representatives--have 
a choice. We can continue the ``War for the West''--including creating, 
encouraging and whipping up folks fears with wild and unsubstantiated 
claims of ``devastation'' at the hands of the ESA or ``immanent 
extinction'' for species. That would be the easy path we have come to 
know so well. Or we can choose to work together, using all the tools in 
the toolbox in good faith, to allay fears and work out solutions on the 
ground.
    The ESA is a good law and it can work tolerably well for everyone 
if we--and by ``we'' I mean those both inside and outside of Congress--
are willing to get out of the way and let it work.
    On behalf of the Access for All network, I thank the Committee for 
the opportunity to submit testimony.
                                 ______
                                 

    The following documents submitted for the record have been 
retained in the Committee's official files:
        1.  Budd-Falen, Karen, Owner/Partner, Budd-Falen Law 
        Offices, L.L.C., Attachment, U.S. District Court 
        ``Stipulated Settlement Agreement.'' (25 pages)
        2.  Sucking, Kieran, Executive Director, Center for 
        Biological Diversity, PowerPoint presentation (14 
        pages)
        3.  Tutchton, Jay, General Counsel, WildEarth 
        Guardians, Santa Fe, New Mexico, Eight documents 
        submitted for the record (44 pages)
                                ------                                


Statement submitted for the record by Alliance for Justice; Center for 
 Justice & Democracy at New York Law School; Center for Law and Social 
    Policy; Consumer Action; Consumer Watchdog; and Sargent Shriver 
                     National Center on Poverty Law

    During the House Committee on Natural Resources' recent 
hearing, ``The Endangered Species Act: How Litigation is 
Costing Jobs and Impeding True Recovery Efforts,'' some members 
voiced concern over the awarding of attorneys' fees under the 
Equal Access to Justice Act (EAJA). EAJA, which was signed into 
law by President Carter and permanently funded by President 
Reagan, awards limited attorneys' fees and costs of litigation 
when a citizen, non-profit organization, or small business wins 
a case involving the federal government and can show that the 
federal government's position was not ``substantially 
justified.'' We write to emphasize the importance of awarding 
attorneys' fees in ensuring that all litigants have access to 
justice. Without the ability to recoup such fees, parties who 
otherwise lack the means to challenge government abuse might 
not assert their rights, potentially leading to specific harms 
like senior citizens not receiving their Social Security 
benefits, veterans not receiving their disability benefits, 
more dangerous highways, and dirtier air and water. We urge 
Committee members to defend EAJA and protect everyone's right 
to access justice.

Sincerely,

Alliance for Justice

Center for Justice & Democracy at New York Law School

Center for Law and Social Policy

Consumer Action

Consumer Watchdog

Sargent Shriver National Center on Poverty Law

                                ------                                

    [A letter submitted for the record by the Natural Resources 
Defense Council and The Wilderness Society follows:]
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    .eps[A letter submitted for the record by Mark N. Salvo, Acting 
Wildlife Program Director, WildEarth Guardians, follows:]

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