[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
__________
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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.
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\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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