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



 
                      TAXPAYER-FUNDED LITIGATION:
                          BENEFITTING LAWYERS
                         AND HARMING SPECIES,
                           JOBS AND SCHOOLS

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

                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                         Tuesday, June 19, 2012

                               __________

                           Serial No. 112-116

                               __________

       Printed for the use of the Committee on Natural Resources



         Available via the World Wide Web: http://www.fdsys.gov
                                   or
          Committee address: http://naturalresources.house.gov



                  U.S. GOVERNMENT PRINTING OFFICE
74-665                    WASHINGTON : 2013
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, [email protected]  

                     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                      Betty Sutton, OH
Scott R. Tipton, CO                  Niki Tsongas, MA
Paul A. Gosar, AZ                    Pedro R. Pierluisi, PR
Raul R. Labrador, ID                 John Garamendi, CA
Kristi L. Noem, SD                   Colleen W. Hanabusa, HI
Steve Southerland II, FL             Paul Tonko, NY
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 Counsel
               Jeffrey Duncan, Democratic Staff Director
                David Watkins, Democratic Chief Counsel
                                 ------                                

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, June 19, 2012...........................     1

Statement of Members:
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     1
        Prepared statement of....................................     3
    Markey, Hon. Edward J., a Representative in Congress from the 
      State of Massachusetts.....................................     4
        Prepared statement of....................................     5

Statement of Witnesses:
    Holsinger, Kent, Manager, Holsinger Law, LLC, Denver, 
      Colorado...................................................    25
        Prepared statement of....................................    27
    Lummis, Hon. Cynthia M., a Representative in Congress from 
      the State of Wyoming (At-Large)............................     9
        Prepared statement of....................................    11
    Patterson, Hon. Jerry E., Commissioner, Texas General Land 
      Office, Austin, Texas......................................    13
        Prepared statement of....................................    15
    Rohlf, Daniel J., Professor, Pacific Environmental Advocacy 
      Center, Lewis and Clark Law School, Portland, Oregon.......    20
        Prepared statement of....................................    22
    Sessions, Hon. Jeff, a United States Senator from the State 
      of Alabama.................................................     6
        Prepared statement of....................................     8
    Stokes, John A., Facilities Development Project Coordinator, 
      San Diego Unified School District, San Diego, California...    17
        Prepared statement of....................................    18

                                     



OVERSIGHT HEARING ON ``TAXPAYER-FUNDED LITIGATION: BENEFITTING LAWYERS 
                AND HARMING SPECIES, JOBS AND SCHOOLS.''

                              ----------                              


                         Tuesday, June 19, 2012

                     U.S. House of Representatives

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              :

    The Committee met, pursuant to notice, at 10:01, in Room 
1324, Longworth House Office Building, Hon. Doc Hastings 
[Chairman of the Committee] presiding.
    Present: Representatives Hastings, Duncan of Tennessee, 
Gohmert, Lamborn, Coffman, McClintock, Tipton, Labrador, Noem, 
Flores, Harris, and Amodei; Markey, Kildee, Napolitano, Holt, 
Costa, and Sablan.
    Also Present: Representative Bilbray.
    The Chairman. The Committee will come to order, and the 
Chair notes the presence of a quorum.
    The Committee on Natural Resources meets today to hear 
testimony on taxpayer-funded litigation benefitting lawyers and 
harming species, jobs, and schools. I ask unanimous consent 
that Mr. Bilbray from California be allowed to participate in 
the hearing. He had expressed an interest in doing so. And 
without objection, so ordered.
    We will now begin, and I will recognize myself for five 
minutes for my opening statement.

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

    The Chairman. The Endangered Species Act was last renewed 
in 1988, when the price of a movie ticket was $3.50 and a cell 
phone, if you had one, was the size of a brick. A lot has 
changed since then. Nearly 25 years later, we have a 
responsibility to ensure this decades-old expired law reflects 
changes and reality so it can be more effective going forward 
for both species and for people. That is what this hearing and 
future hearings will be about.
    Today we will more closely look at one of the greatest 
weaknesses of the ESA, how excessive and costly litigation is 
distorting the ESA's goals. To quote Jamie Clark, the Clinton 
Government-era Fish and Wildlife Service Director, ESA 
litigation has become an ``industry.''
    The original purpose of the ESA was to help recover 
endangered species and remove them from the list, not force 
taxpayers to reward an army of environmental lawyers to exploit 
vague definitions and deadlines that realistically cannot be 
met.
    The dramatic proliferation of lawsuits has serious 
consequences for both the species' recovery and for our 
economy. First, endless litigation diverts valuable time and 
resources away from actual recovery efforts. Agency personnel, 
the States, communities, and private enterprise are forced to 
react to lawsuits, thereby affecting the real efforts to 
conserve and recover species.
    Second, these lawsuits over the past four years have 
numbered more than 500 and have cost taxpayers millions of 
dollars, dollars that go straight to the pockets of special 
interest lawyers. As an example, the Department of Justice 
noted that two lawyers received over $2 million each in 
attorney fees from ESA cases.
    Third, there is an apparent lack of transparency and 
accountability to taxpayers when ESA settlements are being 
negotiated behind closed doors by attorneys that receive 
taxpayer-funded fees from Federal agencies.
    According to information the Committee has obtained from 
the Justice Department, over $21 million has been paid out in 
attorney fees in recent years. And that is just what we know. 
And as seen by this map up here, the costs of the ESA 
litigation are high throughout the country, but much worse in 
the Western part of the United States.
    Not surprisingly, the majority of ESA lawsuits are filed by 
the same handful of organizations, with the Center for 
Biological Diversity and WildEarth Guardians leading the pack. 
According to one report, attorneys' fees and Federal grants 
accounted for 41 percent of WildEarth Guardians' revenue in 
2010. So apparently, it does ``pay to play.'' It is clearly 
appropriate to ask, in these tight fiscal times, whether 
taxpayers should subsidize groups that sue taxpayers in return.
    While a few environmental lawyers rake in the Federal cash 
at hundreds of dollars per hour, the needs of truly endangered 
species suffer. More seriously, American jobs are lost and 
people are hurt.
    Today, in a later panel, we will hear how ESA lawsuits have 
blocked the construction of a San Diego elementary school since 
2006. The school district created habitat for the fairy shrimp, 
and for the past six years it has been caught in endless red 
tape to complete the school that obviously was intended to 
educate our children. Ironically, another witness here today 
was himself deeply involved in that litigation--litigation that 
paid him attorneys' fees and blocked the school from being 
built.
    Before I conclude, there has been much discussion lately on 
how best to define success regarding the Endangered Species 
Act. I have noted that of the 1,391 domestic animal and plant 
species listed under the Act, only 20 have been removed. This 
represents just less than a 1-1/2 percent recovery rate, and I 
do not think anybody should be proud of that.
    A recent Center for Biological Diversity report claims that 
the ESA is sufficiently recovering species. CBD claimed success 
by using data for only 110 of those listed species that have 
recovery plans. This cherry-picking is less than 10 percent 
recovery, and that is hardly anything to shout about. We need 
to move beyond a system where species are added to the list, 
but never come off.
    Increasing the number of ESA species should not be the 
primary goal. It should be to recover species and get them 
taken off the list. Litigation that blocks economic activity 
and public needs, such as building schools, not only impedes 
recovery, but it diminishes trust of taxpayers who are 
subsidizing that litigation.
    [The prepared statement of Mr. Hastings follows:]

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

    The Endangered Species Act was last renewed in 1988, when the price 
of a movie ticket was $3.50 and a cell phone, if you had one, was the 
size of a brick. The world has changed a lot since then.
    Nearly 25 years later, we have a responsibility to ensure this 
decades-old, expired law reflects changes and reality so that it can be 
more effective going forward for both species and people. That's what 
this hearing and future hearings will be about.
    Today, we will more closely look at one of the greatest weaknesses 
of the ESA--how excessive and costly litigation is distorting the ESA's 
goals. To quote Jamie Clark, the Clinton government-era Fish and 
Wildlife Service Director, ESA litigation has become an ``industry.''
    The original purpose of the ESA was to help recover endangered 
species and remove them from the list, not force taxpayers to reward an 
army of environmental lawyers to exploit vague definitions and 
deadlines that realistically cannot be met.
    The dramatic proliferation of lawsuits has serious consequences for 
both species recovery and our economy.
    First, endless litigation diverts valuable time and resources away 
from actual recovery efforts. Agency personnel, states, communities and 
private enterprise are forced to react to lawsuits, thereby affecting 
real efforts to conserve and recover species.
    Second, these lawsuits, over the past four years numbered more than 
500, and cost taxpayers millions of dollars--dollars that go straight 
to the pockets of special interest lawyers. As an example, the Justice 
Department (DOJ) noted two lawyers received over $2 million each in 
attorney fees from ESA cases.
    Third, there's an apparent lack of transparency and accountability 
to taxpayers when ESA settlements are being negotiated behind closed 
doors by attorneys that receive taxpayer-funded fees from federal 
agencies.
    According to information the Committee obtained from the Justice 
Department, over $21 million has been paid out in attorney fees in 
recent years. And that's just what we know. As seen on this map, the 
costs of the ESA litigation are high throughout the country, but much 
worse in the West.
    Not surprisingly, the majority of ESA lawsuits are filed by the 
same handful of organizations--with the Center for Biological Diversity 
and WildEarth Guardians leading the pack.
    According to the one report, attorneys' fees and federal grants 
accounted for 41% of WildEarth Guardians's revenue in 2010. Apparently, 
it ``pays to play.'' It is clearly appropriate to ask in these tight 
fiscal times, whether taxpayers should subsidize groups that sue 
taxpayers in return.
    While a few environmental lawyers rake in the federal cash at 
hundreds of dollars per hour, the needs of truly endangered species 
suffer. More seriously, American jobs are lost and people are hurt.
    Today, we will hear how ESA lawsuits have blocked the construction 
of a San Diego elementary school since 2006. The school district 
created habitat for fairy shrimp and for the past six years has been 
caught in endless red tape to complete a school intended to educate 
hundreds of children. Ironically, another witness here today was 
himself deeply involved in that litigation--litigation that paid him 
attorneys' fees and blocked the school from being built.
    Before I conclude--there's been much discussion lately on how best 
to define success regarding ESA. I've noted that of the 1,391 domestic 
animal and plant species listed under the Act, only 20 have ever been 
removed from the list--this represents just a 1 percent recovery rate 
that no one should be proud of.
    A recent Center for Biological Diversity report claims that the ESA 
is sufficiently recovering species. CBD claimed success by using data 
for only 110 of the listed species that have federally-approved 
recovery plans. This ``cherry picking'' less than 10 percent of the 
total listed species data seriously diminishes their report's 
credibility.
    We need to move beyond a system where species are added to the 
list, but never come off. Increasing the number of ESA species 
shouldn't be the primary goal. It should be to recover species and get 
them taken off the list. Litigation that blocks economic activity and 
public needs, such as building schools, not only impedes recovery, it 
diminishes trust of taxpayers who are subsidizing that litigation.
                                 ______
                                 
    The Chairman. And with that, I will recognize the 
distinguished Ranking Member of the Committee, Mr. Markey of 
Massachusetts.

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

    Mr. Markey. Thank you, Mr. Chairman, very much.
    This week on the House Floor, Republicans are pursuing 
their great American giveaway. Two omnibus Republican bills 
would hand out millions of acres of land to oil and gas 
companies, hand-pick old growth forests for logging interests, 
and trample on the rights of Americans living, working, or 
traveling within 100 miles of our borders.
    Today's hearing on the Endangered Species Act is another 
example of the great American giveaway. In addition to selling 
off our public lands to Big Oil and relinquishing our 
constitutional rights to Big Brother, Republicans are 
questioning the right of Americans to challenge Government 
actions in the courts.
    They are attacking the ability of citizens to bring suits 
against the Federal Government when it fails to follow the law. 
Without this check, the oil, mining, and timber industries can 
maximize their influence on Government actions without any 
serious check from the public.
    According to the Majority's original May analysis of 
information provided by the Department of Justice, the Federal 
Government has reimbursed almost $13 million in attorneys' fees 
since 2009 in cases involving the Endangered Species Act. That 
works out to an average of $3.7 million per year.
    In comparison, last year House Republicans proposed to cut 
money for endangered species programs $72 million per year 
below the President's Fiscal Year 2012 request. These proposed 
cuts to resources for recovering was almost 20 times more than 
the average attorneys' fees paid per year. If the Republican 
Majority really wanted to help species recover, they would be 
adding funds for endangered species restoration, not 
subtracting them.
    Since 1988, the bald eagle is now off the list. Grey wolves 
are now off the list in Montana and Washington State and 
Oregon. But the list still contains grizzly bears, right 
whales, the Pacific yew tree, where we derive Taxol to fight 
cancer, and so far very successfully.
    The Majority has also raised questions about individual 
Endangered Species Act cases with large payment of attorney's 
fees. These, too, should be put in perspective.
    For example, in 2006, the Bush Administration paid out 
$18.7 million in a single telecommunication case that the 
Government lost. One case. Since 2009, $8.7 billion has been 
paid out of the Judgment Fund.
    Attorney's fees for cases involving Endangered Species Act 
are less than two-tenths of one percent of that total. Of 
course, the Judgment Fund is part of the Treasury Department. 
Awards made from it do not come from funds appropriated to 
agencies.
    The Republican argument that litigation somehow hinders the 
recovery if endangered species just does not add up. The cost 
of such litigation makes up a tiny fraction of all of the cases 
successfully brought against the Federal Government each year.
    In reality, dealing with litigation is just a small part of 
the work done by the Federal Government to protect endangered 
species. The vast majority of the Government's time and effort 
is spent on conservation.
    Just last week an historic agreement between the Fish and 
Wildlife Service and the States of Texas and New Mexico 
protected critical habitat of the dunes sagebrush lizard, and 
kept it from being added to the Threatened Species List. Even 
Congressman Steve Pearce called these plans some of the most 
successful ever.
    Around the country, Government scientists are working with 
States, counties, cities, and individual land owners to develop 
science-based solutions that work for people and protected 
species.
    Contrary to the claims of some, the Endangered Species Act 
has done exactly what it was intended to do, help wildlife and 
plants and fish survive. Since its enactment in 1973, only two 
species on the endangered list have gone extinct, an over 99 
percent success rate in avoiding extinction.
    Recovery of species is also on track. A recent analysis 
found that 90 percent of species are recovering at the rate 
specified their Federal recovery plans. No one can call that a 
failure, either.
    Extinction is forever. It is the ultimate giveaway. We will 
never know the benefits that might have come from species that 
have disappeared from the earth. That is why the vast majority 
of Americans of all ages, ethnicities, and education, both 
Democrat and Republican, strongly support the Endangered 
Species Act.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Markey follows:]

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

    This week on the House floor Republicans are pursuing their `Great 
American Giveaway.' Two omnibus Republican bills would hand out 
millions of acres of land to oil and gas companies, hand pick old-
growth forests for logging interests, and trample on the rights of 
Americans living, working or traveling within 100 miles of our borders.
    Today's hearing on the Endangered Species Act is another example of 
the Great American giveaway. In addition to selling off our public 
lands to Big Oil and relinquishing our Constitutional rights to Big 
Brother, Republicans are questioning the rights of Americans to 
challenge government actions in the courts. They are attacking the 
ability of citizens to bring suits against the federal government when 
it fails to follow the law. Without this check, the oil, mining and 
timber industries can maximize their influence on government actions 
without any serious check from the public.
    According to the Majority's analysis of information provided by the 
Department of Justice, the federal government has reimbursed almost $13 
million in attorneys' fees since 2009 in cases involving the Endangered 
Species Act. That works out to an average of $3.7 million per year. In 
comparison, last year House Republicans proposed to cut money for 
endangered species programs $72 million below the president's fiscal 
year 2012 request. These proposed cuts to resources for recovering 
species was almost 20 times more than the average attorney fees paid 
per year. If the Republican majority really wanted to help species 
recover, they would be adding funds for endangered species restoration, 
not subtracting them.
    The Majority has also raised questions about individual Endangered 
Species Act cases with large payment of attorneys' fees. Those too 
should be put in perspective. For example, in 2006, the Bush 
administration paid out $18.7 million in a single telecommunication 
case that the government lost. One case! Since 2009, $8.7 billion has 
been paid out of the Judgment Fund. Attorneys' fees for cases involving 
the Endangered Species Act are less than two-tenths of one percent of 
that total. Of course the Judgment Fund is part of the Treasury 
Department. Awards made from it don't come from funds appropriated to 
agencies. The Republican argument that litigation somehow hinders the 
recovery of endangered species just doesn't add up. The cost of such 
litigation makes up a tiny fraction of all of the cases successfully 
brought against the federal government each year.
    In reality, dealing with litigation is just a small part of the 
work done by the federal government to protect endangered species. The 
vast majority of the government's time and effort is spent on 
conservation. Just last week an historic agreement between the Fish and 
Wildlife Service and the states of Texas and New Mexico protected 
critical habitat of the Dunes Sagebrush lizard and kept it from being 
added to the threatened species list. Even Congressman Steve Pearce 
called these plans ``some of the most successful ever.'' Around the 
country, government scientists are working with states, counties, 
cities and individual land owners to develop science-based solutions 
that work for people and protected species.
    Contrary to the claims of some, the Endangered Species Act has done 
exactly what it was intended to do: help wildlife, plants, and fish 
survive. Since its enactment in 1973, only 2 species on the endangered 
list have gone extinct--an over 99 percent success rate in avoiding 
extinction. Recovery of species is also on track. A recent analysis 
found that 90 percent of species are recovering at the rate specified 
by their federal recovery plans. No one can call that failure.
    Extinction is forever. It is the ultimate giveaway. We will never 
know the benefits that might have come from species that have 
disappeared from the Earth. That's why the vast majority of Americans, 
of all ages, ethnicities, and education, both Democrats and 
Republicans, strongly support the Endangered Species Act.
                                 ______
                                 
    The Chairman. I thank the gentleman for his statement. And 
I am very pleased, our first panel, to have The Honorable Jeff 
Sessions from the great State of Alabama, more specifically 
Mobile, Alabama; and a former colleague on this Committee, 
Congresswoman Cynthia Lummis from the great State of Wyoming, 
more specifically Cheyenne, Wyoming.
    So in our invitation, we mentioned that your full statement 
will appear in the record. But we have the five-minute rule 
over here. And so with that, Senator Sessions, you are 
recognized for five minutes.

 STATEMENT OF HON. JEFF SESSIONS, A UNITED STATES SENATOR FROM 
                      THE STATE OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman, and Ranking 
Member Markey, and distinguished Members of the panel. It is an 
honor to be with you.
    I served for 12 years as United States Attorney and two 
years as Attorney General of Alabama, some years as an 
Assistant United States Attorney, and I have an appreciation 
for one of the problems I believe our legal system faces today. 
I will offer my statement for the record and just share a few 
thoughts with you.
    There is a development in our country in recent years by 
which lawsuits are filed by advocacy groups--they can be 
conservative, liberal, Republican, or Democrat--to seek to 
advance an agenda that they have. And too often, we have seen 
an erosion of a classical principle that we United States 
Attorneys and an Assistant, as I once was, were taught.
    And that principle is, you should defend the rules and 
regulations of the United States even if you do not agree with 
them, even if your President does not agree with them, even if 
it is not popular, because they were the duly elected, duly 
selected, passed law of the United States. And to erode that 
law by not defending it effectively in a District Court 
somewhere in America is to erode law in America, to erode the 
principles of our country.
    One of the most dramatic examples of that, and my 
predecessor as Attorney General agreed, to add two new Justices 
to the Alabama Supreme Court in response to a lawsuit 
challenging the elected process of justices in Alabama--
amending the Constitution and violating the Constitution of 
Alabama, the laws of Alabama, never asking the Legislature if 
they were willing to pay two more judges.
    I got elected, and we appealed, and the Federal Court 
overruled that and said that was wrong. The Alabama 
Constitution should not have been overridden so lightly. But 
this was an example of a lawyer meeting with the other side, 
agreeing to a statement, and the district judge approving the 
settlement. The trial judge approved the settlement because 
normally the parties in agreement before a judge, the judge 
approves the settlement they enter into.
    Well, we have seen a great deal of that happening, I 
believe, with the Endangered Species Act. Maybe some good 
settlements and maybe some bad settlements, but my sense is 
that often, that the people involved, committed to protection 
of endangered species, unable to get Congress to pass laws or 
expend monies to do as they would like to see the process be 
done, are not too eager to defend aggressively against a 
lawsuit asking that they be required to do that.
    And this lack of clear defense and lack of principled 
approach, I think, does endanger the rule of law in America. 
And it causes Americans to wake up and say, how did this 
happen? How did multi-million-dollar, hundreds of millions of 
dollars, in requirements, environmental or otherwise, get 
imposed on us? How did it occur?
    And it occurred somewhere in court, where you have an 
unelected Federal judge with a lifetime appointment. Attorneys 
are part of the bureaucracy. And people just say, well, that is 
what the judge ruled, you know? We are bound by it. That is the 
right thing. You cannot have anything to do about it, American 
people. It has been decided by a court of law. And a judge 
issues a judgment. And that judgment is in many ways more 
difficult to deal with than a Federal regulation, and it 
becomes a judgment of law.
    So I think, Mr. Chairman, you are on the right track to be 
asking these questions in a principled way, in a long-term way, 
that will protect endangered species. I believe in that. I know 
we all do. I had a great visit on a river this weekend. Walked 
into Tennessee. And we have an extraordinary number of 
endangered species in that stream. I was shocked how many.
    Alabama is number three in the Nation in endangered 
species, and we want to protect them. But we need to do it in a 
lawful way, an effective way, that is in accord with our 
principles. And we need to know how these decisions are 
reached, who is making these settlements, and if we could come 
up with a better way to have oversight over that, I think the 
people of the United States would be better able to affix 
responsibility for the burdens that gets imposed on them.
    So it is an honor to be with you. I think you are serving 
history, and you are serving the Constitution. And I appreciate 
this opportunity.
    [The prepared statement of Mr. Sessions follows:]

               Statement of The Honorable Jeff Sessions, 
                a U.S. Senator from the State of Alabama

    Mr. Chairman, Ranking Member Markey, and other members of this 
Committee:
    I am honored to be with you today to discuss an issue that is 
critical to the rule of law in America. The situation arises when a 
litigant or advocacy group sues the government and demands some sort of 
policy relief. You are rightly focusing on the large number of cases 
under the Endangered Species Act, but the problem is pervasive.
    From the days years ago when I was an Assistant U.S. Attorney and 
U.S. Attorney, the principle to be followed by the government attorneys 
was to vigorously defend the duly enacted rule or law of the United 
States no matter what the lawyer or the presidential administration 
then in power, and for whom you worked, publicly or privately thought 
about it.
    The regulation or law being duly enacted became the law of the 
United States until it was changed. The government attorney's clear 
duty in such cases was to defend it against all efforts to alter or 
weaken it. The lawyers defended it dutifully because it is your job and 
there was no one else.
    As you can imagine, this principle is non-partisan. Some days it 
may work to the benefit of one party, one special interest, one 
ideology and another day, against. But, this is the core idea of a 
lawful society.
    Now in recent decades, a dangerous trend has emerged. Advocacy 
lawsuits have more and more been used as a tool to advance an agenda. 
This abuse of law is particularly insidious when government attorneys, 
for political or policy reasons, fail to do their duty.
    Let me give you a dramatic example. A lawsuit was filed by certain 
civil rights groups supported by certain plaintiff lawyer interests 
against the method of selecting Alabama Supreme Court justices. Our 
Justices are elected. They contended the system was discriminatory in 
results. The Attorney General then in office agreed to settle the case. 
The settlement called for adding two justices to the Alabama Supreme 
Court, and he agreed that the new justices would, in effect, be 
selected by a committee of the plaintiffs, and not elected. All of this 
was in violation of the Alabama constitution, and Alabama law, and all 
without appropriations from the legislature to pay for the new 
justices. The settlement was approved by the Federal District Judge. I 
was elected Attorney General later that year, appealed the case, 
defended Alabama law, and won it in the Court of Appeals.
    During this period, a series of education lawsuits, referred to as 
``equity funding'' cases arose. Advocates for more education funding 
and taxes, attacked the unequal results of local education taxes. 
Supported by powerful education interests, the cases resulted in 
``settlements'' all over the country, changing the duly enacted funding 
policies of many states. Many of these cases were an overreach. Often 
the attorneys representing the states caved to political pressure 
rather than defending the law of the state.
    A Democratic Attorney General in Tennessee fought the lawsuit in 
Tennessee, as was his duty, and won. But many other Attorneys General 
cut a deal and, I believe, improperly undermined the legislature and 
law of their state. Some of these lawsuits were not adversarial as the 
system contemplates--but collusive.
    Now, it works like this in environmental law cases. An agency, 
state or federal, desirous of more stringent laws, more funding, and 
more power, has their wishes rebuffed by the legislature. Then a 
lawsuit is filed demanding the Agency take the action favored by the 
Agency. Then the case is ``settled'' by the state or federal attorneys 
to the benefit of the plaintiff and to the satisfaction of the Agency 
or the President. The judge, after being informed that the United 
States or the State agree with the settlement, normally approves the 
settlement. The result is that law and regulations are expanded, 
altered, and violated, often far beyond their intent or plain meaning.
    Thus, the power to legislate--that is given in our system to the 
elected legislative branch--is defeated and altered in a way that is 
not obvious to the people. This unhealthy process is further advanced 
by the requirement that, in certain cases, the U.S. government must pay 
the private attorneys if they win. From 2001 to 2010, the Interior 
Department made over 230 attorney fee payments ``as a result of 
Endangered Species Act litigation'', totaling more than $21 million. 
This practice appears to be accelerating. GAO has found that the number 
of Interior Department attorney fee and cost payments increased by 76% 
from 2008 to 2010 (from 21 to 37 payments). GAO even identified one 
payment in 2010 that exceeded $5.6 million.
    Unfortunately, the Interior Department does not seem to have a good 
grasp of the full costs. Due to discrepancies in how the agency tracks 
the information, GAO found that ``the data may not be complete over the 
identified timeframe'' and that Interior Department ``officials were 
not sure that they had provided the complete universe of cases.'' 
Senator Inhofe and I wrote the Administration, once in November and 
again last month, asking for copies of correspondence between the 
agency and the plaintiffs related to two of these settlements. To date, 
the Administration has refused to provide the requested documents on 
the basis that they are protected from disclosure because they relate 
to ``mediation.''
    Please remember that, while the Department of Interior can urge 
their legal views to the Department of Justice, ultimately it is the 
Justice Department attorneys who represent the United States in court 
and who are responsible for defending the rule of law. I am frankly 
worried that they have not fulfilled their duties faithfully.
    I am a strong believer in protecting endangered species. Only 
California and Hawaii have more threatened or endangered species than 
our beautiful and environmentally diverse state. Just this weekend, I 
hiked to the Walls of Jericho preserve where the river and streams are 
brimming with life.
    But, lawyers, courts and bureaucrats do not get to make policy in 
this country. In the long run, we will all be better served if the 
nation's governing principles are followed. Indeed, disaster will 
result if we depart from our great heritage of law.
    Your hearing, Mr. Chairman, is very important. I believe there is 
too much secrecy in these settlements. There is too often collusion. 
There is too much politics. The ``sue and settle'' actions can quickly 
become anti-democratic, leaving the American people unable to fix 
responsibility for policies being imposed with which they disagree.
    Dig into this situation. It is important. History and the 
Constitution will salute you for it.
                                 ______
                                 
    The Chairman. Well, thank you very much, Senator Sessions. 
Appreciate your remarks. And as I mentioned in my opening 
statement and, as a matter of fact, the first hearings we had, 
we feel--at least, I feel--that this litigation is something 
that needs to be addressed in an open and transparent way. So 
thank you very much for your remarks.
    I will now recognize the gentlelady from Wyoming, Mrs. 
Lummis, who is a former Member of this Committee. And you know 
the rules because you have been on this Committee, so you are 
recognized for five minutes.

   STATEMENT OF THE HON. CYNTHIA LUMMIS, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF WYOMING

    Mrs. Lummis. Well, thank you, Mr. Chairman, Mr. Ranking 
Member, Members of the Committee. This is the third time today 
I have missed being on this Committee, and this is only my 
third meeting of the day. So thanks very much for allowing me 
the opportunity to speak today.
    After listening with great interest to your committee 
discuss litigation as part of your hearing on the Endangered 
Species Act a few months ago, and especially now, after the 
Senator from Alabama has delivered forceful remarks on the need 
to update and modernize the Endangered Species Act, I thought 
it important to share with you what I have learned on taxpayer-
funded litigation.
    Understanding the types of litigation and the source of 
taxpayer funds for each is critical first step to fixing any 
problems associated with litigation. So with your indulgence, I 
want to use my time today to help set the stage for your 
important deliberations.
    Title 16, Section 1540(g) of the U.S. Code is the law that 
authorizes citizen suits in the Endangered Species Act. Suits 
filed pursuant to this section of law are awarded fees and 
expenses through the Judgment Fund, a permanently appropriately 
bottomless pot of money established for the purpose of paying 
judgments in suits against the Federal Government.
    These citizen suits, and decisions about when and how much 
taxpayers should be on the hook to pay for them, fall squarely 
in this Committee's lap. It is critical that you take up this 
issue because I strongly believe that the court is not the 
right venue for ensuring successful species conservation.
    But regardless of what you decide to do or not do about 
ESA-authorized litigation, the fact remains that Congress has 
clearly spoken about what types of litigation are appropriate 
under the ESA. Now, that is a fact that is important to 
distinguish the ESA litigation from Equal Access to Justice 
Act, or EAJA, litigation, as it is known.
    At its core, EAJA is a social safety net program, not an 
environmental one. It is designed to reimburse individuals or 
small businesses the cost for attorneys that sue the Federal 
Government when no other law provides for that. The 
Congressional Record on EAJA's development and passage is 
crystal clear. Congress intended that it serve as a way to help 
veterans, retirees, and small businesses combat the Federal 
Government in court when they felt they had been personally 
wronged.
    Unfortunately, the law throws up difficult roadblocks for 
these legitimate users to recoup their costs. Those roadblocks 
are virtually nonexistent in environmental litigation because 
of the difference in the types of cases brought to court. There 
is ample document that EAJA awards in environmental cases are 
exponentially larger than in cases involving our Nation's 
veterans or retirees.
    I want to refer you to scholarly journals from Virginia 
Tech and Notre Dame, reports from the Government Accountability 
Office, and review of tax records and open court documents to 
confirm this. All these reports show that despite Congress' 
clear intent, EAJA has been used to reimburse groups for 
environmental lawsuits, and no one in Government is keeping 
track.
    Contrary to lawsuits filed pursuant to the ESA, EAJA-
reimbursed lawsuits that touch on ESA decisions are not related 
to actual environmental violations. Now, let me say that in a 
different way because it is a critical point. In every single 
EAJA--EAJA, as opposed to ESA--related cases, litigious 
environmental groups are paid not because they found an 
environmental violation but because they dispute the paperwork 
or procedure by which the Government reached a decision the 
environmental group opposed.
    In essence, these groups use EAJA as a taxpayer-funded back 
door approach to protesting agency decisions and altering the 
ESA's operation without ever having to prove a violation of 
environmental law. Litigious environmental groups like to say 
that EAJA reimbursements are a small part of their budget. If 
that is true, then they will not miss the subsidy when it is 
gone. But either is a weak argument for the point.
    Environmental laws exist for environmentalists. EAJA is for 
seniors, veterans, and small businesses in need. Because EAJA 
payments are supposed to come from agency budgets, every single 
dollar paid to support court battles over procedural grievances 
is a dollar not spent on actual recovery. We have lost sight of 
that, and we have let litigious environmental groups exploit 
our lack of vigilance.
    Mr. Chairman, I would refer you to my additional remarks in 
writing. And I deeply appreciate this Committee's time and 
indulgence to understand the distinction between ESA litigation 
and EAJA litigation this morning. Thank you.
    [The prepared statement of Mrs. Lummis follows:]

             Statement of The Honorable Cynthia M. Lummis, 
             the Representative in Congress for All Wyoming

    Thank you Mr. Chairman for this opportunity to speak with you 
today.
    After listening with great interest to your committee discuss 
litigation as part of your hearing on the Endangered Species Act a few 
months ago, and especially now after the Senator from Alabama has 
delivered forceful remarks on the need to update and modernize the 
Endangered Species Act, I thought it important to share with you what I 
have learned on tax-payer funded litigation.
    Understanding the types of litigation and the source of tax-payer 
funds for each is a critical first step to fixing any problems 
associated with litigation.
    So with your indulgence, I want to use my time to help set the 
stage for your important deliberations today.
    Title 16, Section 1540(g) of the United States Code is the law that 
authorizes so-called ``citizen suits'' in the Endangered Species Act. 
Suits filed pursuant to this section of the law are awarded fees and 
expenses through the Judgment Fund--a permanently appropriated 
bottomless pot of money established for the purpose of paying judgments 
in suits against the federal government.
    These citizen suits, and the decisions about when, and how much 
tax-payers should be on the hook to pay for them fall squarely in this 
committee's lap.
    It is critical that you take up this issue, because I strongly 
believe that the court is not the right venue for ensuring successful 
species conservation. But regardless of what you decide to do or not do 
about ESA authorized litigation, the fact remains that Congress has 
clearly spoken about what types of litigation are appropriate under the 
Endangered Species Act.
    That is a very important distinction that separates ESA litigation 
from the Equal Access to Justice Act--or EAJA, as it's affectionately 
known.
    At its core, EAJA is a social safety net program--not an 
environmental one. It is designed to reimburse individuals or small 
businesses the cost of attorneys for suing the federal government when 
no other law provides for that.
    The Congressional Record on the bill's development and passage is 
crystal clear. Congress intended that EAJA serve as a way to help 
veterans, retirees and small businesses combat the federal government 
in court when they felt they had been personally wronged. 
Unfortunately, the law throws up difficult roadblocks for these 
legitimate users to recoup their costs.
    Scholarly journals from Virginia Tech and Notre Dame, reports from 
the Government Accountability Office, and reviews of tax records and 
open court documents all show that despite Congress' clear intent, EAJA 
has been used to reimburse groups for environmental lawsuits--and no 
one is keeping track.
    Contrary to lawsuits filed pursuant to the Endangered Species Act 
itself, EAJA reimbursed lawsuits that touch on ESA decisions are not 
related to actual violations of that law.
    Let me say that in a different way because this is a critical 
point. In every single EAJA related case, litigious environmental 
groups are paid not because they have found an environmental violation, 
but because they dispute the paperwork or procedure by which the 
government reached a decision the environmental group opposed.
    In essence, these groups use EAJA as a tax-payer funded, backdoor 
approach to protesting agency decisions, and altering the ESA's 
operation without ever having to prove a violation of the ESA itself.
    Litigious environmental groups like to say that EAJA reimbursements 
are a small part of their budget. If that is true then they won't miss 
the subsidy when it's gone, but either way that weak argument entirely 
misses the point.
    Environmental laws exist for environmentalists; EAJA is for seniors 
and veterans in need.
    Because EAJA payments are supposed to come from agency budgets, 
every single dollar paid to support procedural grievances is a dollar 
not spent on actual species recovery. We have lost sight of that, and 
we have let litigious environmental groups exploit our lack of 
vigilance.
    Those of us who live in the west will likely always deal with a 
higher volume of environmental litigation; it is a fact of life. The 
trick is getting the incentives right.
    We need to push court battles toward legitimate environmental 
violations instead of spending tax-payer dollars to support rope-a-dope 
procedural protests when a group is simply dissatisfied with an 
outcome.
    That is why my bill, the Government Litigation Savings Act, is so 
important in tandem with your hearing today.
    If my bill becomes law, the litigious environmentalists can still 
litigate over procedures and paperwork, they simply cannot expect the 
tax-payer to pay them to do it any longer. Instead, they can only be 
reimbursed for substantive suits they win under the terms laid out for 
them in the Endangered Species Act.
    While I may not always agree with the outcome of an open and public 
process for species conservation, I prefer that process any day of the 
week to the very private and privileged decision-making process of the 
courts.
    In the Federalist #78, Alexander Hamilton wrote that the judicial 
branch is the weakest branch of the federal government; saying that the 
court has ``no influence over either the sword or the purse.''
    Mr. Hamilton could never have envisioned what is now the norm. In 
the realm of species conservation, the court is much more than an equal 
partner with congress and the executive; it is the driving force behind 
the purse, and the policy.
    I commend you for taking up this issue, and I urge you to work with 
your counterparts at the Judiciary Committee to advance the Government 
Litigation Savings Act. I am eager to hear the discussion today on ways 
we can properly manage litigation for the benefit of species recovery.
    I yield back.
                                 ______
                                 
    The Chairman. Thank you very much for your testimony. Thank 
both of you for your testimony. Obviously, this is going to be 
an ongoing process, as I mentioned in my opening remarks, and I 
very much appreciate your input. So with that, we will dismiss 
the first panel.
    I would like to call now the second panel to the table. We 
have The Honorable Jerry Patterson, who is the Commissioner of 
the Texas General Land Office, from Austin, Texas; Mr. John 
Stokes, the Facilities Development Project Coordinator from the 
San Diego Unified School District from San Diego, California; 
Mr. Daniel Rohlf, Professor at Lewis and Clark Law School and 
the Pacific Environmental Advocacy Center, from Portland, 
Oregon; and Mr. Kent Holsinger, attorney at Holsinger Law Firm 
from Denver, Colorado.
    I want to just tell you the rules. As I mentioned earlier, 
your full statement that you submitted will be a part of the 
record, and I would ask you to confine your remarks to five 
minutes. The way that timing light works, when the green light 
is on, you are doing very, very well. And when the yellow light 
comes on, that means you are down to one minute. And when the 
red light comes on, it means that your time is expired. So just 
keep that in mind.
    I would now like to recognize the gentleman from Texas, Mr. 
Gohmert, for the purposes of introduction of the first witness.
    Mr. Gohmert. Thank you, Mr. Chairman. It is a great 
privilege of mine to introduce a friend and just a fantastic 
elected official from Texas. He never loses because people 
appreciate who he is.
    And before I get into that, Mr. Chairman, I would ask 
unanimous consent to submit the written testimony of Todd 
Staples, Texas Agricultural Commission, and also comments by 
Susan Combs, the Texas Comptroller of Public Accounts.
    The Chairman. Without objection, they will be part of the 
record.
    [The statements submitted for the record by Mr. Gohmert 
have been retained in the Committee's official files.]
    Mr. Gohmert. And back to Jerry. Jerry Patterson was born in 
Houston, Texas on November 15, 1946. He graduated from one of 
the greatest academic institutions in America, Texas A&M 
University. It is obvious that the concentration there is on 
academics, and never more clearly than last football season.
    [Laughter.]
    Mr. Gohmert. After volunteering for duty in Vietnam, Jerry 
Patterson was designated as a Naval Flight Officer and served 
in Marine fighter squadrons until his retirement from the 
Marine Corps Reserve as a Lieutenant Colonel in 1993. Five 
consecutive generations of his family have served our Nation in 
time of war.
    From 1993 to 1999, he was a State Senator from District 11. 
His most significant legislative successes include passage of 
the historic Concealed Handgun Law, a constitutional amendment 
allowing home equity lending, the Texas Coastal Management 
Plan, and the creation of the Texas State Veterans Home 
program.
    He is a tireless advocate for fellow veterans. He chaired 
the first Veterans Affairs Committee in the Texas Senate. In 
2002, he was elected as our Land Commissioner in Texas and 
reelected to a third term in 2010. He was named Texan of the 
Year for his outstanding work in promoting Texas history 
education, strengthening Texan Independence Day, and in 2011 
the Sons of the Republic of Texas named him a Knight of San 
Jacinto for his efforts to preserve Texas history.
    He resides in Austin and has four children, and those are 
Samantha, Cole, Emily, and Travis. It is really an honor to 
have Jerry here. He is such a great American, a great Texan. 
Jerry Patterson.
    The Chairman. I thank the gentleman for his introduction. 
And I would just simply say if a measurement of academic 
achievement is measured on the football field or lack thereof, 
Washington State qualifies.
    [Laughter.]
    The Chairman. Mr. Patterson, you are recognized for five 
minutes.

          STATEMENT OF JERRY PATTERSON, COMMISSIONER, 
            TEXAS GENERAL LAND OFFICE, AUSTIN, TEXAS

    Mr. Patterson. Thank you, Mr. Chairman and Members, 
Congressman Gohmert for that introduction, some of which was 
actually true. I did cram the normal four-year course of study 
into only five years at A&M, and graduated in the top 75 
percent of my class there.
    [Laughter.]
    Mr. Patterson. I am honored to speak to you about an issue 
that has become particularly important in Texas. As my role as 
Texas Land Commissioner, I manage approximately 13 million 
acres. All the revenues from that 13 million acres is 
dedicated, by Constitution, to public ed and to higher ed. It 
cannot be spent in any other manner, so making money off of the 
resources of Texas mineral, real property resources is 
extremely important.
    I would submit to you that the Endangered Species Act, as 
originally drafted and passed in 1973, has evolved to a 
circumstance where it is categorically and clearly broken. I am 
not sure it serves the purpose of the environment or the 
species, and it certainly, with great frequency, does not serve 
the purpose in my fiduciary duty to the permanent school fund 
and the permanent university fund.
    The question before the Committee today is the litigation 
aspect and how this has evolved into a process that is driven 
by litigation, not by science. I think that is clearly evident 
in the recent controversy and ongoing controversy about the 
dunes sagebrush lizard.
    I think in my written testimony I have cited testimony--or, 
actually, a statement made on the Floor of the Senate, the U.S. 
Senate, on 21 September 1970, by Senator Roman Hruska from 
Nebraska in which he lamented that Section 304, the citizens 
suit provision in the Clean Air Act, was predicated, and I 
quote:
    ``On the erroneous assumption that officials of the 
Executive Branch of the U.S. Government will not perform and 
carry out their responsibilities and duties under the Clean Air 
Act. Never before in the history of the United States has 
Congress proceeded on the assumption that the Executive Branch 
will not carry out the congressional mandate. Hence, private 
citizens shall be given specific statutory authority to compel 
such officials to do so.''
    I think he also continued to say, ``I might add that the 
agency might not be at fault if it does not act promptly or 
does not enforce the Act,'' and I think that is clearly in the 
situation we have today with the U.S. Fish and Wildlife Service 
and also the National Marine Fisheries Service. They are not 
the problem.
    Senator Hruska went on to say, ``Notwithstanding the lack 
of capability to enforce this Act, suit after suit after suit 
could be brought. The functioning of the Department could be 
interfered with, and its time and resources frittered away by 
responding to these lawsuits. The limited resources we can 
afford will be needed for the actual implementation of the 
Act.''
    Today, 42 years later, we find ourselves in a circumstance 
in which the prediction of Senator Hruska in 1970 has come 
true. It is clear that the number of lawsuits is not 
necessarily about species preservation. It is clear that we are 
not living up to the original intention and objective of the 
Act.
    In Texas, we kind of consider this to be the recent 
controversy on the dunes sagebrush lizard. We consider it to 
kind of being charged with capital murder. You know you were 
not even at the scene of the crime, but you pled down to 
manslaughter because the alternative was pretty bad.
    So, similarly, we have entered into an agreement, or some 
folks have entered into an agreement, called the Texas 
Conservation Plan in which companies are going to be spending 
money as a result of all of this litigation. It is going to 
impact their operations, and at some point could have an impact 
on whether we continue to produce oil and gas, all because of a 
lizard that there is no one that can tell you today that it was 
endangered, that it is endangered.
    There is no scientific basis, but nonetheless we suffer an 
ill. And that is another thing to do before we can continue the 
exploration of natural resources and production of those 
natural resources in Texas.
    Another analogy, I guess, would come from the former 
football coach at the University of Texas, where he said, ``A 
tie is kind of like kissing your sister.'' Well, that is 
essentially what we have done by entering into this Texas 
Conservation Plan that was essentially a coercion over about a 
six-month period to get something done to avoid a listing of a 
species that there is no scientific basis for listing.
    The problem today is the Act is not working, and it needs 
to be revised. And later I may have some suggestions for that. 
Thank you, Mr. Chairman.
    [The prepared statement of Mr. Patterson follows:]

            Statement of Jerry E. Patterson, Commissioner, 
               Texas General Land Office, State of Texas

    Chairman Hastings and Committee members, I am Jerry Patterson, the 
27th commissioner of the Texas General Land Office. The General Land 
Office (GLO) was created in 1836 when Texas was an independent 
Republic. The General Land Office is the oldest state agency in Texas 
and I have been elected by the people of Texas to oversee it since 
2003.
    As Commissioner, I am entrusted by the people of Texas to oversee 
millions of acres of land and mineral rights on behalf of the school 
children of Texas. I take this fiduciary role very seriously. As 
chairman of the School Land Board, I help govern the real estate 
portfolio of the Permanent School Fund (PSF), a $26 billion trust that 
benefits every child in Texas.
    It is my responsibility to the PSF that brings me here today. I am 
here to discuss what I see as an exploitation of a loophole and the 
fleecing of tax payer dollars by a few radical environmental groups.
    To be brief and to the point: the U.S. Fish and Wildlife Service is 
faced with a no-win situation. They are overwhelmed by environmental 
groups with hundreds of candidate listings that the agency cannot 
possibly respond to in the statutory timeline specified. They then find 
themselves in violation of that statute and subsequently sued by these 
same groups who filed to protect the species. These groups create the 
problem by purposely overwhelming the agency, knowing that they will be 
unable to respond, and then dictate an outcome because the agency 
settles rather than being able to follow the appropriate process, 
including the study of scientific evidence.
    The Endangered Species Act is one of a dozen or more laws passed in 
the 1970's designed to protect critically imperiled species from 
extinction as a ``consequence of economic growth and development 
untempered by adequate concern and conservation.'' It is now being used 
by a few radical environmental groups to stop economic growth and 
development without the scientific proof that a species and or its 
habitat is being harmed or threatened. The statute worked well for more 
than 30 years until a few years ago. So why are we discussing this 
today?
    A lesson in history is a good place to start. On September 21, 
1970, Senator Roman Hruska, Neb., took to the floor of the United 
States Senate to address what he perceived as an issue. The Nebraska 
Senator pointed out that in S. 4358--The Clean Air Act, Section 304 
``Citizen Suits'':
        ``was predicated on the erroneous assumption that officials of 
        the Executive Branch of the United States Government will not 
        perform and carry out their responsibilities and duties under 
        the Clean Air Act. Never before in the history of the United 
        States has the Congress proceeded on the assumption that the 
        Executive Branch will not carry out the Congressional mandate, 
        hence, private citizens shall be given specific statutory 
        authority to compel such officials to do so. The Hearings of 
        the Public Works Committee do not provide either a factual or 
        legal basis which would justify the adoption of this far-
        reaching and novel procedure wherein private citizens may 
        challenge virtually every decision made by the officials of the 
        Executive Branch in the carrying out of the numerous complex 
        duties and responsibilities imposed by the Clean Air Act. Mr. 
        President, that involves not only every decision but also every 
        lack of a decision, which the secretary may engage in for the 
        purpose of implementing this Act.

        Mr. President, I might add that the agency might not be at 
        fault if it does not Act promptly or does not enforce the Act 
        as comprehensively and as thoroughly as it would like to do. 
        Some of its capabilities depend on the wisdom of the 
        appropriations process of this Congress. Notwithstanding the 
        lack of capability to enforce this Act, suit after suit after 
        suit could be brought. The functioning of the department could 
        be interfered with, and its time and resources frittered away 
        by responding to these lawsuits. The limited resources we can 
        afford will be needed for the actual implementation of the 
        Act.''

        The public interest is not served by subjecting officials of 
        the Executive Branch to harassing litigation. How can they 
        perform the complex administrative and enforcement functions 
        required under the Clean Air Act while simultaneously 
        participating as defendants and/or witnesses in litigation? 
        Instead of forcing such officials to act more effectively the 
        institution of the Citizens Suits will more likely lead to 
        paralysis within the regulatory agency. (Congressional Record, 
        page 32925, September 21, 1970)
    We find ourselves some 42 years later seeing the wisdom in Senator 
Hruska's words and how he predicted where we are today. It should be 
noted that section 304 ``Citizen Suits'' of the Clean Air Act, also 
applies to the Endangered Species Act.
    Amazingly, these environmental groups are able to afford these 
suits by exploiting the Equal Access to Justice Act to get their 
attorneys fees paid. Since 2008, nineteen radical environmental groups 
have received in excess of $15 million in attorney's fees under this 
provision. As crazy as it sounds, these same groups that are suing over 
a missed deadline are also receiving grants from the agency. Pretty 
good gig if you can get it!
    Listing a species, without adequate scientific data, just to settle 
a lawsuit is capricious. The impacts of such decision making can be 
vast. Had the dunes sagebrush lizard been listed, production in the 
Permian Basin--which provides the US with more than 20% of the daily 
oil and gas produced in this country--could be hamstrung, particularly 
if the price per barrel of oil continues to decline, making margins 
closer to the break even point. The Permanent School Fund--with oil and 
gas revenues of more than $4 billion--could see revenue drop by 25 
percent or more.
    As for the impact to the Texas economy in the area targeted by 
environmental groups as critical habitat without the benefit of 
science, encompasses the Permian Basin which provides the US with more 
than 20% of the daily oil and gas consumed in this country. The mining 
section is responsible for some 27,000 jobs in counties targeted by 
environmental groups. And in 2010, the earnings for this sector of the 
economy accounted for more than $1.75 billion dollars and accounts for 
37% of the regions total. Severance taxes from oil and gas production 
in the area for the same period are $265.9 million, more than 22% of 
the state's total severance taxes for 2010.
    On Wednesday, June 13th, the US Fish and Wildlife Service announced 
a land mark decision to not list the dune sage brush lizard (DSL) as an 
endangered species. It was heralded as an unprecedented conservation 
agreement between Texas, New Mexico and the agency. While I applaud the 
agency for working with stakeholders to come up with a creative 
solution, this completely overshadows the real issue. Oil and gas 
operators will be paying fees into a fund to mitigate the impact to 
habitat of the dunes sage brush lizard, but there is no proof that it 
is threatened or endangered.
    Let me be very clear, I am the first to stand up to save a species 
that is truly endangered or threatened. But only after a thorough 
scientific review of the data proving that a threat exists. Trying to 
satisfy an environmental group's threat of a lawsuit is a waste of 
energy, time and resources. The FWS should be spending their time doing 
what they do, evaluating candidate listing requests. I believe that FWS 
should be given the adequate resources to perform their mission and 
given the time they need in order to render a complete and thorough 
decision based on science.
    It is interesting to point out that my office also is responsible 
for our beaches and wetlands along the gulf coast. It takes longer to 
get a permit from the U.S. Army Corps of Engineers, anywhere from 18 to 
36 months to do restoration work on habitat, than it does for the Fish 
and Wildlife service to render a definitive decision to list a species. 
Why is that?
    Science and real data are vital to saving any species. But 
proposing such listings simply to settle lawsuits can cost Texas 
billions and have a lasting impact on future income for funding public 
education in Texas. It is my recommendation that this committee address 
the statute, specifically section 304 as Senator Hruska recommended 
years ago, that is causing this fleecing of our tax dollars and robbing 
the agencies of their resources to actually do the work they are 
supposed to do for the people of this great country.
    Thank you.
                                 ______
                                 
    The Chairman. Thank you very much, Commissioner Patterson, 
for your testimony.
    Now I would like to recognize Mr. John Stokes, who is the 
Facilities Development Project Coordinator for the San Diego 
Unified School District. Mr. Stokes, you are recognized for 
five minutes.

   STATEMENT OF JOHN STOKES, FACILITIES DEVELOPMENT PROJECT 
  COORDINATOR, SAN DIEGO UNIFIED SCHOOL DISTRICT, SAN DIEGO, 
                           CALIFORNIA

    Mr. Stokes. Thank you, Mr. Hastings and distinguished 
Members, for the opportunity to come here and present this 
testimony to you today.
    The project to be described in this brief testimony is the 
history of the Salk Elementary School, which is named in honor 
of Dr. Jonas Salk. The issues that I will present are not the 
fault of Congress, but we believe that they can be fixed.
    The San Diego Unified School District acquired the Salk 
property as a graded, developable 13.7-acre site by Pardee 
Construction in 1979. This was required as part of the plan 
unit development for Mira Mesa housing developments. However, 
due to the effects of the California Prop 13 initiative which 
was passed by the voters in 1978, funds were not available to 
design or construct a school. The property sat undeveloped 
until the need was identified for a new school as part of the 
Proposition MM school bond initiative which was passed by the 
voters in 1998.
    In 1997, just prior to the bond's passage, an environmental 
assessment was performed at the Salk site and the San Diego 
fairy shrimp were identified in non-native depressions at the 
site which formed due to settlement, foot, and unauthorized 
vehicle traffic.
    In between 2003 and 2005, The District Board of Education 
certified the final Environmental Impact Report which 
identified onsite mitigation. However, the U.S. Fish and 
Wildlife Service began to raise concerns at that time regarding 
the onsite mitigation.
    Further, in 2005 after additional study, the District's 
biological consultant and crustacean expert, Dr. Marie 
Simovich, concurred with the Service and identified that there 
were two species of shrimp at the site. One was the Federally 
protected San Diego fairy shrimp, and the other being the 
Lindahl's shrimp, a non-protected and aggressive species.
    It was further determined that the shrimp and vernal pool 
habitat quality at Salk was undesirable as it was not 
indigenous, but formed in the settlement, foot, and vehicle 
traffic depressions. Regardless of this, the District was still 
required to look at offsite mitigation options.
    In late 2005, the District began negotiations with the City 
of San Diego to develop a mitigation plan at the nearby 
McAuliffe Park open space site.
    In late 2006, as a sidebar action, an injunction was filed 
in Federal court by 14 environmental groups, including the 
Southwest Center for Biological Diversity, against the Service, 
challenging a decision to issue an Incidental Take Permit to 
the City of San Diego based on its conservation plan regarding 
property in the vicinity of the Salk school site.
    The then-City of San Diego leadership mistakenly added the 
Salk property into this injunction, which then was filed in the 
Federal court system. This essentially shut down the District's 
ability to construct the Salk school until the District was 
removed from the injunction in late 2010.
    The District was advised that it was highly probable that 
it would be removed from the injunction, but it would have to 
be filtered through the Federal court system and it would be 
safe to proceed with school site planning, but at a slowed 
pace. This four-year action was a major delay to this project.
    Going back to the school planning, In early 2008, the 
Service issued a letter to the District concurring with the 
design direction, which included the use of the McAuliffe site 
for mitigation.
    In late 2009, the District and City of San Diego entered 
into and approved a Memorandum of Understanding which 
identified a trade of 6.1 acres of the Salk school site 
property for the 12.7-acre McAuliffe open space site. The land 
swap also included fees of approximately $2.7 million to be 
paid to the City of San Diego, which would encompass the 
development of the 6.1-acre Salk property.
    In mid-2010, the District released the revised 
Environmental Impact Report for public review which included 
the McAuliffe mitigation site. However, in late 2010, the 
Service approached the District and stated that they deemed all 
the vernal pools on the Salk site to be actively occupied with 
San Diego fairy shrimp, and that there did not appear to be 
enough vernal pool mitigation acreage at the McAuliffe site.
    The District protested, but to prove otherwise, several 
years of additional delays and additional funds would be 
required to perform wet and dry season testing of the pools. 
This decision then required the District to seek additional 
mitigation land at the City of San Diego's Carroll Canyon site, 
which caused an additional one-year time delay and consulting 
fees and community frustration.
    The Service then supported the District's use of the 
Carroll Canyon site and opened multiple dialogues with the City 
of San Diego on the District's behalf to secure the use of the 
site for mitigation purposes. In late 2011, the City of San 
Diego informed the District in support of the use of the 
Carroll Canyon site for vernal pool restoration.
    Due to no design requirements being issued and continual 
agency sequencing and review issues, the process has taken much 
longer than anticipated and added millions of dollars in 
additional costs, as well as affected local job creation and 
quality of education. Again, this process is not the fault of 
Congress, but we do believe that it can be fixed.
    Thank you for your time.
    [The prepared statement of Mr. Stokes follows:]

      Statement of John A. Stokes, Facilities Development Project 
Coordinator, San Diego Unified School District/Facilities Planning and 
                              Construction

    Good morning. Thank you for the opportunity to come here and 
present this testimony to you today.
    The project to be described in this brief testimony is the history 
of the Salk Elementary School which is named in honor of Jonas Salk.
    The San Diego Unified School District (District) acquired the Salk 
property as a graded developable 13.7 acre pad by Pardee construction 
in 1979. This was required as part of the PUD for Mira Mesa housing 
developments. However, due to the effects of the California Proposition 
13 initiative which was passed by the voters in 1978, funds were not 
available to design or construct a school. The property sat undeveloped 
until the need was identified for a new school as part of the 
Proposition MM school bond initiative which was passed by the voters in 
1998.
    In 1997, just prior to the bond's passage, an environmental 
assessment was performed at the Salk site and San Diego Fairy Shrimp 
were identified in non native depressions which formed due to 
settlement, foot and unauthorized vehicle traffic.
    Between 2003 and 2005, The District Board of Education certified 
the final Environmental Impact Report (EIR) which identified on-site 
mitigation. However, the US Fish and Wildlife Service (Service) began 
to raise concerns regarding the on-site mitigation. Further, in 2005 
after additional study, the District's biological consultant/crustacean 
expert, Dr. Marie Simovich concurred with the Service and identified 
that there were two species of shrimp at the site. One was the 
Federally protected San Diego Fairy shrimp, and the other being the 
Lindahls shrimp, a non protected and aggressive species. It was further 
determined that the shrimp and vernal pool habitat quality at Salk was 
undesirable as it was not indigenous, but formed in settlement, foot 
and vehicle traffic depressions. Regardless of this, the District was 
still required to look at off-site mitigation options.
    In late 2005, the District began negotiations with the City of San 
Diego to develop a mitigation plan at the nearby McAuliffe Park open 
space site.
    In late 2006, as a sidebar action, an injunction was filed in 
federal court by fourteen environmental groups against the Service 
challenging a decision to issue an Incidental Take Permit to the City 
of San Diego based on it's conservation plan regarding property in the 
vicinity of the Salk school site. The then City of San Diego leadership 
mistakenly added the Salk property into this injunction which then was 
filed in the federal court system. This essentially shut down the 
District's ability to construct the Salk school until the District was 
removed from the injunction in late 2010. The District was advised that 
it highly probable that it would be removed from the injunction, but it 
would have to be filtered through the Federal court system and it would 
be safe to proceed with school site planning, but at a slowed pace. 
This 4 year action was a major delay to this project.
    Going back to the school planning, In early 2008, the Service 
issued a letter to the District concurring with the design direction 
which included the use of the McAuliffe site for mitigation.
    In late 2009, the District and City of San Diego entered into and 
approved a Memorandum of Understanding (MOU) which identified a trade 
of 6.1 acres of the Salk school site property for the 12.7 acre 
McAuliffe open space site. The land swap also included fees of 
approximately 2.7million dollars to be paid to the City of San Diego 
which would encompass the development of the 6.1 acres of the Salk 
Property.
    In mid 2010, the District released the revised EIR for public 
review which included the McAuliffe mitigation site. However, in late 
2010, the Service approached the District and stated that they deemed 
all the vernal pools on the Salk site to be actively occupied with San 
Diego Fairy shrimp, and that there didn't appear to be enough vernal 
pool mitigation acreage at the McAuliffe site. The District protested, 
but to prove otherwise, several years of additional delays and 
additional funds would be required to perform wet and dry season 
testing of the pools. This decision then required the District to seek 
additional mitigation land at the City of San Diego's Carroll Canyon 
site which caused an additional 1 year time delay and consultants fees 
and community frustration.
    The Service then supported the District's use of the Carroll Canyon 
site and opened multiple dialogues with the City of San Diego to secure 
the use of the site for mitigation purposes. In late 2011, the City of 
San Diego informed the District in support of the use of the Carroll 
Canyon site for vernal pool restoration.
    Due to no design requirements being issued and continual agency 
sequencing and review issues, the process has taken much longer than 
anticipated and added millions of dollars in additional costs as well 
as affected local job creation and the quality of education
    Currently, the District has completed the final Habitat 
Conservation Plan (HCP) and Environmental Assessment (EA) process and 
is awaiting them being entered into the Federal Register for public 
review sometime within the next 30 days. It is hoped that necessary 
permits will be issued to the District by the end of September, 2012 
and that actual construction can begin by no later than mid 2013.
                                 ______
                                 
    The Chairman. Thank you very much, Mr. Stokes, for your 
testimony.
    I will now recognize Mr. Daniel Rohlf, Professor at the 
Lewis and Clark Law School and the Pacific Environmental 
Advocacy Center from Portland, Oregon. Now, Lewis and Clark is 
not in Portland itself, is it? It is in a suburb?
    Mr. Rohlf. Lewis and Clark is in the City of Portland.
    The Chairman. It is in the City of Portland? OK. Well, I 
will not hold that against you. I just wanted clarification.
    [Laughter.]
    Mr. Rohlf. Thank you, Mr. Chair.
    The Chairman. You are recognized for five minutes, Mr. 
Rohlf.

   STATEMENT OF DANIEL ROHLF, PROFESSOR, LEWIS AND CLARK LAW 
SCHOOL AND THE PACIFIC ENVIRONMENTAL ADVOCACY CENTER, PORTLAND, 
                             OREGON

    Mr. Rohlf. Thank you, Chairman Hastings and Ranking Member 
Markey.
    In addition to my teaching and academic work on the 
Endangered Species Act, I am a co-founder of the Pacific 
Environmental Advocacy Center at Lewis and Clark Law School, 
our domestic environmental law clinic.
    PEAC provides free legal representation to people and 
organizations that work to clean up our air and water and 
protect our Nation's wildlife. Most of our clients are small 
local groups.
    For example, with the help of PEAC's attorneys, one such 
citizen group collected more water pollution fines in Oregon 
than the entire staff of the State's Department of 
Environmental Quality between 2004 and 2006. Oregon's water is 
clear as a result, benefitting both fish and people. These are 
precisely the results Congress intended when it provided for 
attorney fee awards for successful litigants in environmental 
cases.
    As the title of this hearing suggests, taxpayer-funded 
attorney fee awards do benefit lawyers, though perhaps in 
different ways than I think this Committee meant to imply. Fee 
awards help our clinic provide hands-on legal training to 
students, who go on to work for a wide variety of clients, 
including the Federal Government, private property owners, and 
this very Committee.
    Litigation does not harm species, jobs, or schools. Indeed, 
quite the opposite is true. For example, through my work with 
PEAC, I have worked on litigation that has significantly 
improved a Federal agency's operation of hydroelectric dams on 
the Columbia and Snake Rivers.
    When I first became involved in salmon conservation 
efforts, one could literally count on one hand the number of 
returning Snake River sockeye. That is it. However, I am happy 
to say that today, ``Lonely Larry,'' the nickname given to the 
single salmon who returned to Idaho's Redfish Lake in the early 
1990s, has given way to increasing runs of salmon that pump 
hundreds of millions of dollars into the economies of Northwest 
communities.
    For example, one recent study estimated that recreational 
fishers spend over $900 for each Chinook salmon they land, a 
figure that I can say is entirely accurate given my many years 
of fishing with my father-in-law.
    But Mr. Chairman, you are correct. Another of PEAC's 
successful cases was in fact designed to harm species--
specifically, invasive species that threaten native wildlife, 
our farmers' crops, and even our own back yards. These invaders 
are an environmental and economic disaster of staggering 
proportions. The Federal Government, States, and private 
industry incur over $140 billion, with a B, each year in 
control costs and damage stemming from invasive species.
    As a result of over a decade of PEAC's work and success in 
court, EPA closed a regulatory loophole in the Clean Water Act 
and now more carefully regulates discharges of ballast water 
from ships, one of the primary ways that aquatic invasive 
species hitch a ride to this country.
    The Federal Government's modest fees for PEAC work bought 
ongoing reductions in the risk of extinction for countless 
aquatic species and helped prevent significant economic damage 
to local communities.
    So why does recovery of listed species sometimes lag behind 
what we would like to see? Unfortunately, current levels of 
appropriations for recovery measures are only about one-fifth 
of the level needed to do the job. Therefore, the single most 
effective step that can be taken to recover threatened and 
endangered species, and thereby increase the pace of 
delistings, is to support more funding for recovery efforts.
    Such investments in species and ecosystem recovery provide 
enormous returns. For example, hunting, fishing, and wildlife 
watching together account for over $120 billion in annual 
revenue, equivalent to the seventh largest corporation in 
America.
    Finally, it is important to remember that attorney's fees 
to plaintiffs are only awarded when a court finds that the 
conduct of the Federal Government was way out of line. For 
example, I was involved in a recent ESA case where the court 
found that high-level Fish and Wildlife Service managers in 
Washington, D.C. overruled the scientific findings of the 
agency's local biologist for political purposes, issuing what 
one agency biologist, in the record, characterized as 
``marching orders'' for a negative decision.
    This case provides two important lessons. First, it is 
vital to have outside watchdogs to make sure Federal agencies 
follow the law and take steps it prescribes to protect 
imperiled species. Second, it would have been simple for Fish 
and Wildlife Service to avoid paying PEAC's attorney's fees, 
and indeed avoid litigation altogether, if the agency had 
simply complied with the ESA in the first instance.
    The attorneys and students at PEAC do not do the work we do 
because it is lucrative--which it is not. We do it because it 
is vitally important. I am proud of the work we have done and 
continue to do. It has helped recover species, and it has made 
our air and water cleaner.
    Our Nation's wildlife represents one of our country's 
greatest national assets, and biodiversity is a continuing 
source of economic prosperity. The small investment of 
providing fees to groups like PEAC to enforce the law has 
helped to ensure that these treasures will continue to exist 
for generations to come.
    [The prepared statement of Mr. Rohlf follows:]

                Statement of Professor Daniel J. Rohlf, 
   Pacific Environmental Advocacy Center, Lewis and Clark Law School

    Thank you Chairman Hastings, Ranking Member Markey; I appreciate 
your invitation to speak to the Committee today.
    I am a Professor of Law at Lewis and Clark Law School in Portland, 
Oregon. I am also the co-founder of the Pacific Environmental Advocacy 
Center (PEAC), Lewis and Clark's environmental law clinic. PEAC 
provides free legal representation to organizations and citizen groups 
that work to clean up pollution of our air and water and protect our 
nation's wildlife. Most of our clients are small local non-profit 
groups. For example, our clinic pursues actions to protect water 
quality on behalf of the Northwest Environmental Defense Center, an 
organization run by volunteer Lewis and Clark Law School students and 
alums. With the help of PEAC's attorneys, between 2004 and 2006 NEDC 
clean water enforcement actions collected more water pollution fines in 
Oregon than the entire staff of the state's Department of Environmental 
Quality. Spurred by press reports of this disparity, Oregon DEQ has 
finally begun to issue more substantial fines to polluters. As a 
result, Oregon's water is cleaner, which in turn has benefited salmon 
and steelhead as well as the people of Oregon. PEAC and NEDC's work is 
made possible in part by the availability of fee awards to successful 
plaintiffs. These are precisely the results Congress intended when it 
provided for attorney fee awards for successful litigants in 
environmental cases.
    My work at PEAC and Lewis and Clark focuses primarily on federal 
litigation on behalf of public interest organizations that involves the 
federal Endangered Species Act (ESA). For over two decades, I have 
taught law school courses on wildlife law, authored one book and 
numerous articles on the ESA. During this time, I have worked with law 
students in our environmental law clinic to litigate many ESA cases, 
including matters dealing with salmon conservation in the Columbia 
River Basin, grizzly bear recovery in the northern Rocky Mountains, and 
protection of fairy shrimp in southern California.
    As do my clinical colleagues at Lewis and Clark, I draw a clear 
distinction between my academic and clinical work. In my classes, my 
goal is to simply provide an accurate picture of how the law works--I 
leave my personal views outside the academic classroom. On the other 
hand, as we stress as part of our clinic's legal ethics instruction, 
PEAC staff attorneys and student clerks have an obligation to represent 
zealously the interests of our clients, which include many 
environmental organizations. However, Lewis and Clark also offers 
opportunities for students interested in gaining real-world experience 
by representing ranchers, farmers, and miners. Many Lewis and Clark 
students thus receive law school credit through their litigation work 
with the Western Resources Law Center, an organization co-founded by 
the law school's former dean. WRLC's staff attorney is also an adjunct 
law professor at Lewis and Clark. Without WRLC, many of family and 
small-scale ranchers, farmers, and miners would not be able to have 
their interests represented in court, just as many citizen groups and 
non-profit environmental organizations could not retain expert 
attorneys without PEAC.
    As the title of this hearing suggests, tax-payer funded attorney 
fee awards do benefit lawyers, though in different ways than this 
Committee meant to imply. Fee awards help our clinic provide hands-on 
legal training for students who will be the future elected officials, 
attorneys, managers, and others working to resolve society's many 
environmental challenges. Lewis and Clark graduates who participate in 
PEAC now work at U.S. Department of Justice and federal agencies, state 
and local government, law firms, and non-profit organizations. One of 
PEAC's recent alums worked as a fellow with the staff of this 
Committee, so it is not a stretch to say that this very body gained an 
employee with invaluable real-world experience in environmental law as 
a result of the hands-on experience made possible by PEAC and the 
attorneys fees that help fund our clinic. Attorney fee awards when it 
prevails in litigation also help the Western Resources Law Center to 
provide its students with valuable experience in environmental law.
    Even with the availability of fee awards, working for an 
environmental non-profit organization does not make for a lucrative 
career. The annual salaries of PEAC staff attorneys are far less than 
first-year associates in Washington, D.C. law firms. Many of our 
graduates fortunate enough to land highly sought-after positions with 
public interest organizations must rely in part on the law school's 
Loan Repayment Assistance Program to meet their monthly student loan 
payments. From over two decades experience, I can assure you that it is 
not a paycheck but rather strong personal convictions and a desire to 
benefit society--to make our water and air cleaner and to save species 
from extinction--serve as the motivations for PEAC students and staff 
attorneys. I see the same sorts of commitments to public service and 
financial sacrifices in attorneys I work with throughout the 
environmental community.
    Litigation does not harm species, jobs, or schools; indeed, quite 
the opposite is true. Through my work with PEAC, I have worked for more 
than 20 years on litigation challenging federal agencies' operation of 
hydroelectric dams in the Columbia and Snake Rivers, a major reason 
that many salmon and steelhead runs are on the lists of endangered and 
threatened species. When I first became involved in salmon conservation 
efforts, one could literally count on one hand the number of returning 
Snake River sockeye. However, I'm happy to say that today ``Lonely 
Larry''--the nickname for the single Snake River sockeye salmon that 
made it to Idaho's Redfish Lake in the early 1990s--has given way to 
hundreds of sockeye that now follow their ancient migration from the 
ocean to the mountains. The picture is also now much brighter for many 
other Columbia Basin runs.
    Courts' enforcement of Endangered Species Act protections for 
salmon has been a major factor in increasing salmon survival. One of 
the first ESA lawsuits to improve salmon survival was brought not by 
environmentalists, but by the State of Idaho. In his ruling on that 
case in 1994, Judge Malcolm Marsh concluded that federal hydro managers 
had ``focused their attention on what the establishment is capable of 
handling with minimal disruption,'' and emphasized that in order to 
restore salmon in the Columbia Basin ``the situation literally cries 
out for a major overhaul.'' \1\
---------------------------------------------------------------------------
    \1\ Idaho Dept of Fish and Game v. NMFS, 850 F.Supp. 886, 900 (D. 
Ore. 1994).
---------------------------------------------------------------------------
    Unfortunately, that overhaul is still not complete. Scientists have 
repeatedly pointed out relatively modest modifications to dam 
operations could significantly improve salmon survival. However, these 
changes to the status quo have often met with stiff resistance. PEAC 
and Earthjustice, representing a broad coalition of environmental 
groups, sport and commercial fishermen, and local businesses, have 
followed in Idaho's footsteps to enforce the ESA's protections for 
salmon in court. Indian tribes and the state of Oregon have 
collaborated in these legal efforts. Both district courts and the Ninth 
Circuit Court of Appeals have found repeatedly that dam managers have 
failed to live up to the ESA's requirements for increasing salmon 
survival. These legal victories have compelled the National Marine 
Fisheries Service to improve its plans for salmon recovery, and have 
spurred wide investment in habitat restoration that will not only 
benefit salmon and steelhead, but will help restore aquatic ecosystems 
throughout the Columbia Basin. As new recovery plans are written, the 
courts have ordered more spill over the dams to increase survival of 
baby salmon on their way to the sea.
    Fee awards from successful litigation have enabled PEAC and 
Earthjustice to devote the huge amounts of time and effort necessary to 
enforce the requirements of the ESA and complete the overhaul of dam 
operations envisioned by Judge Marsh nearly two decades ago. Data from 
many sources show that these awards have been a very sound investment 
in terms of both the environmental and economic well-being of the 
Northwest. Court-ordered spill has increased the survival of out-
migrating salmon by as much as 95 percent, stabilizing many declining 
populations. Since much of growth in salmon numbers consists of 
hatchery fish available for harvest, this increase in salmon 
populations is delivering benefits to river and coastal communities by 
protecting and creating jobs in the salmon economy. Recreational 
fishing for salmon and steelhead in the Columbia-Snake River Basin 
currently generates approximately $562 million per year for fishers 
businesses, and communities, with commercial fishing adding $60 million 
more. When excellent ocean conditions allowed Idaho to open a salmon 
fishing season in 2001--at that time a very rare occurrence--
independent economists calculated that economic activity in the state 
increased by $90 million; the fishing season accounted for nearly a 
quarter of the annual sales of businesses in one small town on the 
Snake River. A 2009 study estimated that recreational fishers spend 
over $900 for each chinook salmon they land, a figure that I can say is 
entirely accurate from my many fishing trips with my father-in-law.\2\
---------------------------------------------------------------------------
    \2\ Potential Economic Contributions of Spring and Summer Chinook 
Had SAFE For Salmon Been In Effect, Southwick Associates, Inc. April 
24, 2009 pg 27, Appendix C.
---------------------------------------------------------------------------
    As the title of this hearing suggests, one of PEAC's successful 
cases was in fact designed to harm species--specifically the invasive 
species that represent a huge threat to native wildlife, plants, and 
crops, and which inflict significant damage on the national economy. 
Over a decade ago, a PEAC student aware of the dangers posed by 
invasive species grew angry that the very law designed to prevent such 
damage was unable to do so. At the time, regulations implementing the 
Clean Water Act exempted from the law the discharge of ballast water 
from ships. These discharges are one of the primary causes of 
introductions of invasive aquatic species into the waters of the United 
States. Invasive species, which often out-compete and displace native 
and endangered species, have become a huge environmental and economic 
disaster. For example, over half of the fish and most of the bottom-
dwelling creatures living in San Francisco Bay are not native, making 
the Bay the world's most invaded body of water. Invasive species are 
now the second-leading cause of species becoming endangered, behind 
only habitat destruction. But what is truly staggering is the price tag 
for efforts to control invasive species and mitigate the damage they 
cause to crops, infrastructure, and businesses. The federal government, 
states, and private industry incur over $140 billion in costs each year 
stemming from damage caused by--as well as efforts to control--invasive 
species. Water intake pipes and hydroelectric turbines clogged with 
invasive mussels, fishing communities devastated by loss of commercial 
species to competition from invaders, entire ecological systems facing 
an uncertain future--the harms caused by invasive species are very real 
and very expensive.
    After the EPA refused PEAC's petition to close the Clean Water 
Act's regulatory loophole for ballast water, PEAC was forced to sue the 
agency. The Ninth Circuit Court of Appeals sided with PEAC's clients, 
and today EPA and the Coast Guard are implementing a general permit 
regulating ballast water discharges from ships that advances efforts to 
eliminate introductions of invasive species throughout the United 
States. PEAC's work has thus helped to make our waters cleaner, slowed 
the spread of invasive species, reduced the risk of extinction of 
countless aquatic species, and prevented significant economic damage to 
local economies. The long fight legal to gain these protections would 
not have been possible without the attorney fees that our clinic 
received for its successful work.
    Overall, investment in implementing the ESA--including attorney fee 
payments for successful citizen enforcement of the statute--provides 
the American public with significant environmental and economic 
returns.
    The ESA has proven to be very effective at halting and reversing 
imperiled species' decline toward extinction--at least those species 
that make it through the listing process and on to the list of 
threatened or endangered species. According to the U.S. Fish and 
Wildlife Service, 99% of the species on the ESA's protected lists have 
been saved from extinction.\3\ Given the complex and challenging 
threats facing many species, recovery can take many years. However, a 
peer-reviewed study concluded that the longer a species has been 
listed, the more likely it is to be improving.\4\ Perhaps not 
surprisingly, another study found that species' chances of recovery 
also went up with increased spending for recovery measures, but it also 
noted that current levels of appropriations for recovery measure are 
only about one-fifth of the level needed to do the job.\5\ Therefore, 
the single most effective step that can be taken to recover threatened 
and endangered species--and thereby increase the pace of delistings--is 
to support more funding for recovery efforts.
---------------------------------------------------------------------------
    \3\ U.S. Fish and Wildlife Serv., Endangered Species Program, Why 
Save Endangered Species, at 4 (2005).
    \4\ M. Taylor, K. Suckling, and J. Rachlinski, The Effectiveness of 
the Endangered Species Act: A Quantitative Analysis, 55.4 BioScience, 
360, 366 (2005).
    \5\ Miller JK, Scott JM, Miller CR, Waits, The Endangered Species 
Act: Dollars and Sense? 52 BioScience 163-168 (2002).
---------------------------------------------------------------------------
    Protecting endangered and threatened species and the ecosystems 
upon which they depend provides critical ecosystem services that all 
creatures depend upon--including us. Functioning ecosystems supply us 
with cold clean water, purify our air and remove wastes from rivers and 
streams, pollinate our crops, provide sources of medicine and raw 
materials, and give an increasingly crowded world open space and places 
to recreate and enjoy wildlife.
    The dollar value of biodiversity and the ecosystem services it 
provides is immense. For example, hunting, fishing, and wildlife 
watching together account for $120 billion in annual revenue, 
equivalent to the 7th largest corporation in America.\6\ As the Fourth 
Circuit Court of Appeals noted, the reintroduction and protection of 
red wolves was constitutional under the Commerce Clause because red 
wolf recovery had the potential to increase local receipts from 
wildlife-related tourism by up to $183 million annually in North 
Carolina, and by up to $354 million per year in Great Smokey National 
Park.\7\ Similarly, a recent estimate put the value of healthy salmon 
runs in the Sacramento River system at $5.7 billion, representing 
94,000 jobs.\8\
---------------------------------------------------------------------------
    \6\ U.S. Fish and Wildlife Serv., Div. of Econ., Rep. 2006-1, 
Wildlife Watching in the U.S.: The Economic Impacts on National and 
State Economies in 2006, at 3 (2008).
    \7\ Gibbs v. Babbitt, 214 F.3d 483, 493 (4th Cir. 2000).
    \8\ American Sportfishing Association press release, August 7, 2009 
(citing information developed by Southwick Associates, and economic 
research firm).
---------------------------------------------------------------------------
    As you have noted Mr. Chairman, and I suspect nearly all of us 
would agree, Congress has an obligation to the American public to 
ensure that the Executive branch's policies and actions fully implement 
the laws enacted by the people's representatives. When it passed the 
Endangered Species Act, Congress recognized that the vast scope and 
complexity of protecting species across the country from extinction 
made it important to enlist citizens in ensuring effective enforcement 
of the law. In light of the enormous environmental as well as financial 
payoffs from endangered species protection and recovery, the federal 
government's investment in attorney fee awards for successful citizen 
enforcement of the ESA is extremely modest.
    Finally, it is important to remember that these fee awards are only 
available when plaintiffs are able to prove that the Executive branch 
substantially violated the law to the extent that a judge considers an 
agency's actions to be ``arbitrary and capricious.'' One of my recent 
cases--ironically involved bald eagles, our nation's symbol of truth 
and justice--involved high-level FWS mangers overruling the findings of 
the agency's endangered species biologists for political purposes. 
Disregarding the ESA's express requirement that decisions about species 
listings be based solely on the best science available, FWS' 
Washington, D.C. office issued what a local FWS biologist characterized 
as ``marching orders'' to turn down a petition to list the isolated 
population of eagles in Arizona's Sonora Desert--despite 
recommendations to the contrary from the agency's local experts. \9\ 
This prompted another agency scientist to comment that ``[w]e've been 
given an answer now we need to find an analysis that works.'' This is 
obviously not the way science is done. The court ruled that FWS had 
acted unlawfully, finding its actions to ``exemplify an arbitrary and 
capricious agency action.'' It awarded PEAC attorney fees for its role 
in reversing the agency's arbitrary decision.
---------------------------------------------------------------------------
    \9\ Center for Biological Diversity v. Kempthorne, 2008 WL 659822 
at 11 (D. Ariz. 2008).
---------------------------------------------------------------------------
    This case provides two important lessons. First, it is vital to 
have outside watchdogs to make sure that federal agencies are following 
the law and taking the steps needed to protect imperiled species. 
Second, it would have been simple for FWS to avoid paying PEAC's 
attorney fees--and avoid litigation altogether--if the agency had 
simply complied with the ESA in the first instance.
    The attorneys and students at PEAC do not do the work we do because 
it lucrative (which it isn't); we do it because it is vitally 
important. I have spent countless nights my office with my students 
hurriedly finishing briefs before a filing deadline, long after all the 
other faculty and students left the law school campus for the day. All 
the PEAC staff and students often work on cases for many hours a day, 
sometimes to the detriment of their other classes, because they believe 
that stopping pollution and protecting our wildlife are the most 
important things they do. I'm proud of the work we've done and continue 
to do. It has helped recover species, and it has made our air and water 
cleaner. Our nation's wildlife represents one of our country's greatest 
natural assets, and biodiversity is a continuing source of economic 
prosperity. The small investment of providing fees to groups like PEAC 
to help enforce the law has helped to ensure that these treasures will 
continue to exist for generations to come.
                                 ______
                                 
    The Chairman. Thank you very much, Mr. Rohlf, for your 
testimony.
    Now I will recognize Mr. Kent Holsinger, attorney at the 
Holsinger Law Firm in Denver, Colorado. You are recognized for 
five minutes.

            STATEMENT OF KENT HOLSINGER, ATTORNEY, 
                HOLSINGER LAW, DENVER, COLORADO

    Mr. Holsinger. Thank you, Mr. Chairman, Members of the 
Committee. I appreciate the opportunity to be here today for 
this important topic.
    Mr. Chairman, Members of the Committee, I believe the 
Endangered Species Act has become the Nation's most abused 
environmental law. It has evolved from Congress passed in 1973 
into a leviathan, driven by litigation by activist groups, a 
small cadre of attorneys.
    The United States is the greatest Nation on earth, typified 
by our freedoms, our liberty, and our ``can do'' spirit. But I 
fear as a result of the Endangered Species Act and these 
abuses, it has evolved into a ``cannot do'' nation.
    Agriculture we cannot do for mountain plover. Electricity 
we cannot do for razorback sucker or for salmon. Mining, the 
pallid snail. Domestic energy production, the greater sage 
grouse.
    The greater sage grouse has not been listed. It is a 
candidate for listing. Nonetheless, it is seriously impacting 
activities in the West. As an example, the BLM, which 
administers over 250 million acres in the West, is signaling by 
all accounts that it is closed for business, that activities 
can no longer go forth from resource management plan revisions 
that are approaching 2,000 pages, 50 pages of new restrictions, 
5 pages of acronyms and abbreviations, going so far as to 
purport to regulate private lands in the name of species like 
greater sage grouse.
    But what can we do when conservation efforts are proposed, 
be they for a permit to approve some activity? The answer is, 
sorry, you cannot do that without additional NEPA compliance--
NEPA compliance, understand, for the conservation measures to 
actually do benefit to the species.
    Contrary to what we have heard and from reports like the 
Center for Biological Diversity, a 10 percent compliance rate 
with recovery documents is hardly a 90 percent success rate 
under the Endangered Species Act. In fact, fewer than 1-1/2 
percent of species have ever recovered to the point of 
delisting.
    Now, Center for Biological Diversity and other activist 
groups have petitioned to list hundreds and hundreds of species 
in the West. As an example, from their effort that culminated 
in a settlement agreement, they petitioned to list Arctia 
species 1, a moth in the West; Heterocampa rufinans, a moth in 
Colorado; Fibi ellisebra, an ant (phonetic).
    Many of these lack even common names or descriptions. And 
the material cited by petitioners and later litigants was from 
a database called NatureServe. With NatureServe comes an 
important disclaimer: All documents or information provided are 
as-is, without warranty as to currentness, completeness, or 
accuracy of any specific data.
    How can the Fish and Wildlife Service purport to comply 
with the best available science standard under the Act when 
their listing budget has doubled? And by budget, I mean the 
number of species that they will be considering per year. Now, 
757 species that they have to consider for listing out of a 
total of less than 1200 on the Act today.
    The ESA has been an incredible success for groups like 
Center for Biological Diversity. Since 1999, they have been a 
party to over 835 Federal lawsuits. Two new lawsuits announced 
since I prepared my testimony for today on Saturday.
    They are collecting millions in taxpayer-funded attorney 
fees, including over $125,000 simply for this settlement alone. 
In one case we were involved in, attorney fees awarded to 
environmental plaintiffs amounted to $650,000 in one single 
case.
    But more money for the Fish and Wildlife Service is not the 
answer. In fact, the Endangered Species Act has been cited as a 
hindrance to good conservation efforts. The BLM and the Forest 
Service have recognized that the ESA creates a complex maze 
that is regularly an obstacle to conservation work. Even the 
Fish and Wildlife Service has noted that it supports voluntary 
conservation efforts as the most effective means to protect 
species and their habitats.
    There have been tremendous success stories. They are in 
spite of the ESA, not because of it. To fix these problem, we 
should allocate our scarce resources to full species--no more 
nonsense with subspecies and population segments. Take away the 
litigation incentives, recognize mitigation, and streamline the 
process for it to occur. Recognize the benefits that accrue 
from voluntary work and on private lands. And thank you again 
for the opportunity to be here today.
    [The prepared statement of Mr. Holsinger follows:]

        Statement of Kent Holsinger, Manager, Holsinger Law, LLC

    Thank you for the opportunity to testify. Holsinger Law, LLC is a 
small, Denver-based law firm that specializes in lands, wildlife and 
water law. I am testifying as the manager of Holsinger Law, LLC. In 
that capacity, I can attest to the impacts the Endangered Species Act 
(ESA) has had on many of our clients such as individual landowners, 
agricultural entities, water providers and energy producers.
I. Drowning in Petitions and Flooding with Lawsuits
    Over the past several years, a small cadre of environmental groups 
has buried the U.S. Fish and Wildlife Service (FWS) with listing 
petitions under the ESA. WildEarth Guardians alone has petitioned to 
list more than 681 plant and animal species.
    Such efforts could blanket the West with ESA listings. A single 
listing could have dramatic impacts to the regulated community: 
agriculture, water, utilities, industry and others. Federal agencies 
impose onerous restrictions even for candidate and special status 
species such as greater sage grouse.
    Listings and litigation are unlikely to go away. According to the 
Western Legacy Alliance, from 2000 to 2009 the Center for Biological 
Diversity (CBD) filed 409 lawsuits; followed by 180 lawsuits filed by 
WildEarth Guardians (WEG) and 91 filed by Western Watersheds Project, 
among many others. These activist groups can collect millions in 
taxpayer-funded attorney fees from procedural victories or even 
settlement agreements with the United States.
    Accordingly to our research, from 1999 to 2012, CBD has been a 
party to a staggering 835 lawsuits! WEG has been a party to 145 
lawsuits (123 of which it initiated) between 2008 and 2011. Of the WEG 
cases, 95% have been brought against the federal government. In 2010, 
WEG filed more than one new lawsuit per week. Most of these have been 
brought against the U.S. Department of the Interior (DOI). Most have 
raised claims related to the ESA.
    CBD and WEG entered into settlement agreements with DOI In May and 
July of 2011 over petitions to list over 775 species under the ESA 
through a myriad of lawsuits and petitions. Currently, there are 1,1,38 
species listed under the ESA. How can the FWS process these petitions 
while adhering to the ``best available science'' standard under the 
ESA?
    These groups collected over $125,000 in taxpayer-funded attorney 
fees as a result. Despite the settlement agreements, CBD has boasted of 
filing new ESA petitions and lawsuits as recently as June 8 and June 
11, 2012.
II. The ESA Stands in the Way of Good Conservation Efforts
    Because the regulatory straightjacket of the ESA creates a 
disincentive to landowners, listing often stands in the way of good 
conservation work. Even the FWS expressed that it ``supports voluntary 
conservation as the most effective method to protect species and their 
habitats.'' See 70 Fed. Reg. 2245. And the FWS does ``recognize that 
listing may affect local planning efforts, due to its effect on 
voluntary conservation efforts.'' Id. at 2246.
    Listings often restrict the ability to manage for species and could 
even result in harm to the species. See Amara Brook, Michaela Zint, 
Raymond De Young, Landowners' Responses to an Endangered Species Act 
Listing and Implications for Encouraging Conservation, 17 Conservation 
Biology 1473, 1638 (Dec. 2003) (Where an extensive survey of landowners 
showed that many managed their land so as to avoid the presence of a 
listed species). Many landowners managed their forest lands to avoid 
the nesting of federally-listed red-cockaded woodpeckers. For example:
        Ben Cone of North Carolina managed 7,200 acres of timberland 
        with 70-80 year harvest rotations, small cuts, and controlled 
        burns, which...created habitat for the red-cockaded woodpecker. 
        When the endangered woodpecker took up residence on Cone's 
        land, more than 1,500 acres were placed under the control of 
        the U.S. Fish and Wildlife Service (see Stroup 1997). In 
        response, Cone began a harvest rotation of 40 years on the rest 
        of his land in order to eliminate the mature pines favored by 
        the woodpecker and also remove any possibility that the federal 
        government would take control of his remaining land.

        Ben Cone's experience is not an isolated incident, as a study 
        by economists Dean Lueck and Jeffrey Michael (1999) confirms. 
        Using data from hundreds of forest plots in North Carolina, 
        they found that the more red-cockaded woodpeckers in the 
        vicinity, the more likely the landowners were to harvest 
        younger trees....(Lueck and Michael 1999, 36). The landowners' 
        incentive for using this shorter rotation was to ensure the 
        birds did not move onto their property, possibly leading to 
        land-use restrictions. Clearly, the ESA is creating perverse 
        incentives. Holly Lippke Fretwell, Forests: Do we get what we 
        pay for? Available at http://www.perc.org/publications/
        landreports/report2.php#tale.

        According to Bureau of Land Management (BLM) and U.S. Forest 
        Service officials, the ESA creates ``...a complex maze of 
        processes and procedures, which field biologists and managers 
        must attempt to negotiate on a daily basis in order to 
        implement on-the-ground projects.'' USFS and BLM, Improving the 
        Efficiency and Effectiveness of the Endangered Species Act, 
        (Dec. 15, 2003). In regards to the peregrine falcon, leading 
        experts concluded, ``despite having the authority for 
        implementing the ESA, and a number of their biologists 
        contributing importantly to the recovery program, as an agency 
        the FWS had a limited role, and its law enforcement division, 
        which was in charge of issuing permits as well as enforcing 
        regulation, was regularly an obstacle to recovery actions.'' 
        (Burnham and Cade 2003b) (emphasis added).
III. Greater Sage Grouse: Are BLM Lands Closed for Business?
    Federal lands comprise over one-third of the State of Colorado. 
Over 8 million acres are managed by the BLM. While Congress has 
mandated that these lands be managed for multiple uses, the BLM is 
issuing new draft Resource Management Plan (RMPs) that signal BLM lands 
could be closed for business. New restrictions for sage grouse and 
other sensitive species could threaten scores of communities in the 
West.
    RMPs guide and define management actions, future land use decisions 
and project-specific analyses on some 250 million acres of BLM lands in 
the West. BLM justifies the significant revisions to its existing RMPs 
due to ``new issues and higher levels of controversy'' since the 
original plans were prepared. More than 15 RMPs are currently under 
revision in Alaska, Arizona, California, Colorado, Idaho, Nevada and 
Wyoming.
    In Colorado, BLM has issued new drafts for its Colorado River 
Valley and Kremmling Field Offices. Some of these RMPs approach 2,000 
pages with 50 pages of new restrictions and 5 pages of acronyms and 
abbreviations.
    The drafts would include: less land available for mineral leasing; 
significantly increased buffers around sage grouse habitat; de facto 
wilderness; significantly increased buffers around raptors and eagles; 
new restrictions for prairie dogs, amphibians, fish and recreation; 
buffers around streams and water supplies; timing limitations for 
stream crossings; new cultural restrictions and tribal consultation 
requirements; onerous air quality standards and severe restrictions on 
mechanized travel and right-of-ways.
    Some BLM wildlife restrictions go far beyond the legal standards 
required. For example, there are now restrictions for sensitive fish 
species that occur only downstream and outside of the planning areas. 
Timing limitations for in-channel work (ie road crossings, pipelines or 
culverts) are proposed for ``native fish'' and ``important sport 
fish.'' BLM intends to ``designate'' lands with wilderness 
characteristics and, much like EPA's controversial guidance on 
wetlands, proposes to regulate activities in and around riparian areas 
and even intermittent streams.
    Even more disturbing are BLM's proposed restrictions on access to 
public lands. BLM now mandates areas open to cross-country travel or 
``Open to Existing Routes'' should instead be ``Limited to Designated 
Routes.'' This simple change places millions of acres off limits to 
mechanized travel. For example, in the Kremmling draft, BLM cross-
country travel would be slashed from 307,300 acres to only 200 acres. 
Thousands of acres would also be designated Right-of-way Avoidance 
Areas and Right-of-way Exclusion Areas. No Surface Occupancy 
stipulations would increase tenfold and Controlled Surface Use 
constraints would double.
    Citing impacts from agriculture and energy development, 
environmental groups have been pushing to list the sage grouse under 
the ESA for years. Despite over 300 documented conservation efforts in 
place, DOI determined listing the greater sage grouse was warranted but 
precluded in 2010. Ironically, in some of the RMPs, BLM recognizes that 
sagebrush habitat is largely intact and that there is little threat of 
fragmentation. They also recognize significant increases in moose, 
antelope, mule deer and elk populations since the last RMP revisions. 
Adding fuel to the fire, the BLM, and several other federal agencies, 
are now intruding on Colorado and proposing to regulate oil and gas 
despite decades of successful state regulation.
    The draft RMPs are incredibly complex and onerous. In some cases, 
they lack significant information and failed to include key documents, 
descriptions and data necessary for informed public review and comment. 
Where BLM analyzed economics, its figures were inconsistent and 
contradictory. As a result, BLM has created a jigsaw puzzle of 
conflicting regulations and contradictory assumptions. The underlying 
theme implies BLM lands will be closed for business due to sage grouse 
and other issues.
IV. Opportunities for Mitigation and Wildlife Protection
    For listed species, activities that require federal permits, 
licenses or authorizations require consultation with the U.S. Fish and 
Wildlife Service (Service) under Section 7 of the ESA. This can result 
in significant delays and costly project modifications. For example, 
surveys may be required for some listed species that are not present 
for significant months out of the year. And existing federal permits, 
licenses or authorizations could be subject to reinitiation of 
consultation upon new listings or information. Finally, some actions on 
public or private lands could be construed to ``take'' listed species 
or their habitat under Section 9 of the ESA. Violations of the ESA are 
subject to substantial civil and criminal penalties.
    A common thread in dealing with these issues is the need to 
mitigate impacts for regulatory compliance. But, incredibly, agencies 
like the BLM are requiring permitting and red-tape even for projects 
that improve or enhance habitat. National Environmental Policy Act 
(NEPA) compliance, along with the ESA, is stifling conservation work.
    But there are opportunities for improvement. For example, Partners 
for Western Conservation (Partners) is a 501(c)(3) designed to 
facilitate on-the-ground conservation work. It was established by the 
Colorado Cattlemen's Association, Environmental Defense and industry 
representatives.
    Private landowners contribute up to 95% of the habitat for listed 
and at-risk species. With close ties to statewide agricultural 
organizations, environmental groups and natural resource agencies, 
Partners could help bridge the gap between the needs of the regulated 
community and the restoration, improvement and protection of valuable 
wildlife habitat on public and private lands. Companies or entities 
that need mitigation could solicit, and choose from, proposals from 
landowners to do real, on-the-ground conservation work. Besides 
introducing competition, and reduced costs, Partners could facilitate 
contracts between the regulated and the applicable landowner as well as 
quantification and monitoring of habitat benefits.
    The system could work much like wetlands banking. Wetlands banking 
has become so successful that the Army Corps of Engineers now urges the 
regulated look first to wetlands banks to mitigate impacts. Wildlife 
credits or habitat banking through entities like Partners could 
eventually help break the cycle of listings and litigation in favor of 
real, quantifiable conservation work that benefits landowners, the 
regulated and the environment. But until Congress directs the agencies 
to refocus away from red-tape and simply saying ``no,'' there is little 
incentive for such proactive habitat work.
V. Conclusion
    Now is hardly the time for ``business as usual'' under the ESA. 
Scarce resources are being wasted on litigation driven by a handful of 
activist groups with little or no real conservation benefits. People 
and wildlife would benefit from improvements to the ESA, NEPA and other 
federal laws. Congress and the Administration should be working to 
reduce frivolous litigation, streamline permitting to promote on-the-
ground conservation efforts, alleviate economic burdens and promote 
jobs. Thank you again for the opportunity to testify.
                                 ______
                                 
    The Chairman. Thank you very much for your testimony. I 
want to thank all of you for your testimony. We will now start 
the process of questions from the Committee, and I will 
recognize myself for five minutes.
    My first question goes to Commissioner Patterson. You 
mentioned the settlement that is being negotiated. I assume it 
is not totally promulgated on the dunes lizard yet, but it is a 
work in progress. But that is a settlement on an individual 
species.
    Let me ask you a question from your perspective. Given your 
testimony and your experience with this individual settlement, 
do you think these mega-settlements that we have seen here in 
the last several years are a good idea? And if so, why? And if 
not, why not?
    Mr. Patterson. Well, I think this settlement was the best 
that could be done for the folks who are concerned with 
continuing to produce oil and gas in the Permian Basin. It was 
not a settlement that they sought. It was not a settlement that 
they were enamored of. But again, the alternative was a 
listing.
    But we still have a circumstance in which there is no 
scientific evidence that this species is----
    The Chairman. I understand that. I understand it, and I was 
down there, and I heard that firsthand from people.
    Mr. Patterson. Right.
    The Chairman. My question is, what are your views on the 
mega-settlements?
    Mr. Patterson. Oh, yes. Mega-settlements--the ecosystem 
settlements, yes. That just is a way of lumping together 
species which may not be justified for an endangered status and 
trying to move it through the process in kind of a sale 
process. I do not support that, absolutely not. And of course, 
this was not one, and the----
    The Chairman. I understand. But I wanted your views on 
that.
    Mr. Patterson. Yes. That takes anyway science and just 
makes it as an expeditious manner to list a bunch of species.
    The Chairman. Right. Getting back, then, to that individual 
settlement, do you think that the way, say, it is written right 
now, that there is adequate flexibility for States to enter 
into agreements that would be beneficial to both the species 
and to your States? Or is there a hindrance in the law as it is 
written right now to allow that to happen?
    Mr. Patterson. U.S. Fish and Wildlife has a statutory 12 
months, 90-day prior to that time. And that drives us as well. 
So the answer is no. It is not conducive to State participation 
in the process, for the same reasons that U.S. Fish and 
Wildlife cannot respond in a timely manner with that statutory 
requirement.
    The Chairman. Yes. Thank you very much.
    My next question is for Mr. Holsinger. You mentioned in 
your written testimony, and you alluded to it toward the end of 
your oral testimony, that there have been successes, but those 
successes are in spite of. Would you elaborate on that?
    Mr. Holsinger. Yes, Mr. Chairman. One example that we can 
cite is in Colorado. The Colorado Farm Bureau and their members 
partnered with the Rocky Mountain Bird Observatory over 
mountain plover. Remarkable voluntary conservation efforts, 
where farmers would call the bird observatory before they 
plowed their fields, so that they would actually invite people 
onto their private lands to flag plover nests so the farms 
would not till over them.
    The efforts were award-winning from the Department of the 
Interior. Unfortunately, they were rewarded ultimately with, 
yet again, litigation over the listed status of mountain 
plovers.
    So I think the old adage--if you have a rare mineral on 
your property, it is more valuable; if you have a rare species, 
it becomes valueless--is very true.
    The Chairman. And just real briefly, in your written 
testimony you suggested that there may be harm to endangered 
species the way this is working out. Just briefly, would you 
elaborate real quickly on that?
    Mr. Holsinger. Yes, Mr. Chairman. In the peregrine falcon 
recovery, the U.S. Forest Service and the BLM experts actually 
concluded that the ESA was a hindrance to doing good things for 
the species and not a help.
    Similar things have been studied for the Preble's meadow 
jumping mouse in Colorado and Wyoming, and the red cockaded 
woodpecker, where landowners are actively managing to avoid 
further presence of these species because they recognize the 
terrible regulatory impacts that could affect them if they are 
indeed present. And that is a terrible perverse incentive.
    The Chairman. I see instances of that in my district.
    Mr. Rohlf, in your testimony, oral testimony, you mentioned 
the success of the sockeye salmon on the Snake River. That was 
largely recovered because of a hatchery program. Do you support 
hatcheries?
    Mr. Rohlf. In the instance of Snake River sockeye, that was 
kind of a last gasp.
    The Chairman. No. My question is, do you support the 
hatchery program to recover a species?
    Mr. Rohlf. They have a place in instances like the Columbia 
River.
    The Chairman. That implies that there is not a place. Tell 
me where there is not a place, then.
    Mr. Rohlf. In many of the runs, hatchery practices actually 
harm wild runs rather than help them.
    The Chairman. My time is up, but I wonder how one can come 
to that conclusion when the hatchery programs on the Snake 
River and the Columbia River system started at the turn of the 
1900s. There was no marking at that time. And if the lifespan 
of a salmon is five years, how would you possibly know that 
offspring in the 1990s, 2000, would not be the offspring from 
hatchery fish? That defies logic, in my mind.
    My time is expired. I recognize the gentleman from 
Massachusetts, Mr. Markey.
    Mr. Markey. Thank you.
    Mr. Rohlf, we have heard a lot about the Judgment Fund this 
morning, and I hope that you can clarify the confusion about 
it.
    The Judgment fund was established in order to pay awards 
and attorney fees in cases where judges find that the Federal 
Government has violated the law, any law. Now, the Republicans 
argue thought payments in Endangered Species Act cases are 
depleting the fund.
    Since 2009, the Judgment Fund has paid out $8.7 billion. 
The Majority's analysis claims that 21 million has been paid 
for attorney's fees in cases involving the Endangered Species 
Act in that same period of time.
    Now, 21 million is two-tenths of 1 percent of 8.7 billion. 
Now, I know that you are a law professor and not a math 
professor. But does two-tenths of 1 percent of the entire 
Judgment Fund seem excessive to you?
    Mr. Rohlf. I think that is a very small percentage for a 
very wise investment. A lot of benefit.
    Mr. Markey. Yes. Two-tenths of 1 percent seems very small 
to me as well. I await clarification by the Majority, perhaps, 
in their questioning as to how that can be a significant amount 
of money.
    Now, Mr. Rohlf, according to a study by the University of 
Vermont, industry lawsuits opposing critical habitat 
designations now account for over 80 percent of all of the 
active cases related to the critical habitat under the 
Endangered Species Act.
    Do you believe that we should limit the ability of 
businesses, like oil and gas producers, from challenging agency 
actions under the Endangered Species Act so that we do not have 
the courts cluttered with these cases? Because they do 
represent 80 percent of all the cases that are brought. Do you 
think we should find a way of limiting their ability to bring 
cases?
    Mr. Rohlf. Representative Markey, I think the rule of law 
is one of the things that makes this country great, and access 
to the courts is very important. And I think the Equal Access 
to Justice Act, as well as the citizen suit provisions of the 
Endangered Species Act and other environmental laws, have 
provided that equal access to the courts for all. And so I 
would not support limiting access to our courts by anyone.
    Mr. Markey. I agree with you. Even though they are oil and 
gas companies, and even though it is 80 percent of all the 
cases brought under the Endangered Species Act, I do not think 
we should be limiting them. I think we have to stand up for 
those oil and gas companies and their right to have access to 
the courts.
    Now, Mr. Rohlf, the Majority argues that litigation that 
seeks compliance with the Endangered Species Act impedes 
recovery. Do not delays in listing species play a bigger role 
in hampering their recovery? And cannot litigation lead to 
collaborative species' recovery?
    Mr. Rohlf. Well, Representative Markey, there are over 250 
species on a list under the ESA that have been determined to 
warrant protection under the statute, and they have not been 
listed. And so they just languish on this list with no 
protection whatsoever.
    Now the Fish and Wildlife Service has agreed to go through 
that list and consider listing those species, and that will be 
the most important thing to get them on the road to recovery. 
So listings put species on the road to recovery.
    Mr. Markey. Now, Mr. Rohlf, businesses or individuals who 
are sued often settle their disputes out of court rather than 
engage in litigation. They do this to save time and money in 
addition to avoiding the chance for an adverse ruling.
    Do you think the Federal Government should be allowed to 
save taxpayers' money by settling cases that would otherwise 
result in additional litigation costs?
    Mr. Rohlf. I think that is very important.
    Mr. Markey. Do you agree with that, Mr. Holsinger?
    Mr. Holsinger. Mr. Chairman [sic], I think what is lacking 
is real on-the-ground conservation work. And none of this 
litigation results in that.
    Mr. Markey. We agree with that. Would you support an 
increase in funding for on-the-ground conservation work, Mr. 
Holsinger, in the Federal budget?
    Mr. Holsinger. To the States?
    Mr. Markey. From the Federal Government to----
    Mr. Holsinger. From the Federal Government to the States?
    Mr. Markey. To the States.
    Mr. Holsinger. Yes. I think that would be a good step. 
Funding for State conservation efforts are where those 
activities can best occur.
    Mr. Markey. Would each of you agree that there should be an 
increase in conservation funding? Mr. Rohlf?
    Mr. Rohlf. Yes. I think that would benefit endangered 
species and people.
    Mr. Markey. Mr. Stokes?
    Mr. Stokes. I do as well.
    Mr. Markey. And Mr. Patterson?
    Mr. Patterson. Yes, sir. I think more money going to the 
States without the oversight and strings that make it difficult 
to administer would be a very good idea.
    Mr. Markey. You think the funding is too low right now?
    Mr. Patterson. I think any additional funding should go to 
the States. Yes, sir.
    Mr. Markey. Thank you. And I appreciate that.
    Mr. Chairman, I yield back the balance of my time.
    The Chairman. I thank the gentleman.
    The Chair recognizes the gentleman from Texas, Mr. Gohmert, 
for five minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And I am curious. My colleague, Mr. Markey, mentioned 80 
percent of lawsuits are industry-based. Mr. Holsinger, do you 
have any comment about that?
    Mr. Holsinger. I am stunned to hear such a figure. I have a 
hard time understanding where it could come from. I have a 
tremendous amount of comfort and knowledge in the data that 
environmental groups are bringing hundreds and hundreds of 
lawsuits. No such knowledge of industry suits to the contrary.
    Mr. Gohmert. To my friend Jerry Patterson, we have not 
talked about this particular question. But I am curious: Have 
you ever heard the term, ``Shoot, shovel, and shut up''?
    Mr. Patterson. That is exactly what occurs when you have a 
statute that does not encourage participation in the process. 
When you have people fearful of having--I think that is where 
you are going with this----
    Mr. Gohmert. Yes. Go ahead. Please explain.
    Mr. Patterson. When you have folks fearful of what may 
happen if a certain species is located on their property, you 
are going to have exactly as you described.
    And I make it analogous to I am also responsible for oil 
spilled along the Texas Coast. We have tremendous voluntary 
cooperation because they know that we are cooperative, and it 
is not a penalty-based system. You report; you get it cleaned 
up; there is no penalty.
    If you have folks who will self-report because they have 
confidence in the system, you will have much more cooperation, 
and in this case, much more conservation.
    Mr. Gohmert. Well, actually, we had an effort in 2005 and 
2006, the 109th Congress, to improve the Endangered Species 
Act. And I was shocked at the resistance we got to improving 
the Act and improving the rate of saving the species simply by 
paying landowners if the Federal Government stepped in and 
declared your land was an endangered species habitat.
    Clearly, when the Federal Government does that, it seemed 
to me that was a taking. You cannot use your property like you 
wanted to. And I was shocked at the resistance we got over that 
because it seemed like that would help eliminate some poor 
farmer out there that is just scraping by, and he finds an 
endangered species.
    And he knows that if that part of his land is taken up--and 
I know you do not advocate this policy, but you hear poor 
landowners struggling to get by that say, look. If they declare 
an endangered species habitat on my land, I am out of business. 
My family is broke. We have nothing. And I cannot sell the land 
because it is an endangered species habitat.
    It seemed like a fair thing to do, and that it would 
encourage, as you have, people to self-report when there is 
pollution or problems. And I know nobody knows Texas land 
better than you. You have been in the job and been all over the 
State doing that.
    But you do think that would be a better improvement to the 
ESA than some of the other ideas that have been proposed?
    Mr. Patterson. I think so. And there are several ways to 
improve the ESA. One of them is to get rid of the 1-month 
statutory deadline, which is a technique and a tactic in the 
litigation to drive the train rather than actually do an 
evaluation of species.
    Providing financial incentives for landowners to 
participate, self-report, create habitat on their own without 
having an overbearing agency, be it State or Federal, looking 
over their shoulder, that would all be positive.
    Mr. Gohmert. And of course, since that revenue from State 
land funds our education system in Texas, that would be good 
for all the little children that we want to educate. I know you 
have pushed that strongly, and I appreciated that in your 
opening comments.
    Mr. Stokes, do you have anything further to suggest based 
on the discussion thus far that we could do to help improve the 
ESA?
    Mr. Stokes. At this point, from our level, we are more of 
an end user of this whole thing. And where we have had the 
difficulty--and let me answer that question this way. Where we 
have had the difficulty is in the--when we have requested--when 
this school was in the--when I took it over almost four years 
ago, I sat down with Fish and Wildlife up in Carlsbad and 
specifically asked them, what are the legal requirements? What 
are you guys looking for so we can do this correctly?
    And I am still waiting for an answer to that. So when I 
say, help us, we need----
    Mr. Gohmert. Oh, but you did not put a time limit on when 
you wanted an answer. I think that----
    Mr. Stokes. We did, sir.
    Mr. Gohmert. Oh, you did? OK.
    Mr. Stokes. Yes, we did. We had----
    Mr. Gohmert. Yes. Do not leave the Federal Government an 
open-ended question.
    Mr. Stokes. Right.
    Mr. Gohmert. The answer will stay open.
    Mr. Stokes. Sure. We shared the project's timeline. We went 
through that to say, what can we do to help you move this 
along? What can we do to do this? Because we have to serve the 
students. The project is running late as it is.
    So we went through all of that. And it was just one thing 
after another. That just seemed to us to be open interpretation 
because we had no standards in front of us by which to gauge 
any kind of a dialogue or a discussion. I mean, we have the 
Building Code that we can flip through and look through that. 
But this is something completely different.
    So I would say we need some help in that arena.
    Mr. Gohmert. Thank you. I yield back.
    The Chairman. The time of the gentleman has expired.
    The Chair recognizes the gentleman from New Jersey, Mr. 
Holt.
    Mr. Holt. Thank you, Mr. Chairman.
    You know, with the Endangered Species Act, it is easy to 
ridicule a particular listing, some jumping mouse or spotted 
owl or some small creature. And instead, we often turn to the 
grandeur of the streams teeming with salmon or steelhead, or 
the magnificent grizzly or grey wolves or the really 
magnificent Atlantic sturgeon, many of which are older than 
most of the people in this room. And we see maybe why it is 
important to prevent extinction.
    But I think the greater significance of the Endangered 
Species Act is what it means for the web of life, more than 
these grand species. It is not nice to disrespect Mother 
Nature. And there are things that we are learning about the web 
of life that go far beyond our really poor understanding up to 
now of how these things are tied together--not just whether we 
will find Taxol in yew trees or other things, but what it will 
say about our ability to live on this Earth.
    Mr. Rohlf, you had spoken about the success of the 
Endangered Species Act. I am not quite sure how to measure it, 
whether it is recovery and delisting of species, or prevention 
of extinction. Just in quick summary, how would you describe 
the degree of success of the ESA so far?
    Mr. Rohlf. Well, if you go back to the late 1960s and early 
1970s when the Department of the Interior was first compiling a 
list of species facing extinction, that list was growing longer 
every day. Nearly 40 years later, after enacting one of the 
most comprehensive protections for biodiversity of any country, 
we see many efforts throughout the country to combine economic 
development as well as protection of endangered species.
    And that is having a great deal of success. I mentioned 
efforts to restore salmon in the Pacific Northwest. Restores 
ecosystems, provides jobs, supports the local economy, and 
protects that web of life.
    And if you look all around the country, similar efforts are 
going on. And rather than biodiversity being in decline 
throughout the country, in many places we are making enormous 
strides to protect biodiversity and provide for the benefits of 
that for both people and the environment.
    Mr. Holt. Thank you. Further, Mr. Rohlf, I would like to 
ask you about citizen enforcement, citizen watchdogs. How 
important is this in not just the Endangered Species Act but 
Clean Air Act, Clean Water Act, toxic statutes, and so forth?
    Mr. Rohlf. Well, it is incredibly important. As I 
mentioned, a small group of volunteer law students and alums of 
our law school that we represent garnered more penalties for 
enforcing the Clean Water Act than the entire State 
environmental enforcement agency of Oregon for three years. So 
without those citizen watchdogs, without citizen enforcement of 
environmental laws, including the Endangered Species Act, we 
would be in a lot of trouble.
    Mr. Holt. Mr. Holsinger, you commented about how many 
lawsuits have been filed by one organization in particular. 
What limit should be placed on the number of lawsuits that a 
citizen or citizen organization should be able to file?
    Mr. Holsinger. Well, Congressman, I think it is just an 
indication of how broken the law has become that we even need 
to ask the question.
    Mr. Holt. Yes. But were you suggesting that there should be 
a limit?
    Mr. Holsinger. I am suggesting the law is broken and has 
led to a significant and tremendous amount of frivolous 
litigation.
    Mr. Holt. So some of those should be limited because you 
think they are frivolous?
    Mr. Holsinger. I think the law should be amended to take 
away the incentive.
    Mr. Holt. That is not my question.
    Let me ask another question. What would be a satisfactory 
number of species to be listed? You talked about a 
proliferation of the number of species. Should there be a 
congressionally imposed--should Congress substitute our 
scientific judgment for that of scientists of how many species 
should be listed?
    Mr. Holsinger. Well, I think the standard under the Act is 
clear. It is the best available science. But when you have such 
a----
    Mr. Holt. And would you put a limit on that?
    Mr. Holsinger. A limit on the best of----
    Mr. Holt. The number of species?
    Mr. Holsinger. On the number of species?
    Mr. Holt. Yes. I mean, why do you raise that point about 
the number of species unless you are saying that it is too 
many? And so then I am asking you to define too many.
    Mr. Holsinger. Well, I will give you a wonderful reason why 
I mentioned that. The Endangered Species Act provides that a 
species may be petitioned for listing. These groups are 
petitioning to list hundreds of species. I do not think that is 
consistent with the letter of the law.
    Mr. Holt. And that is, in your opinion, too many? Well, 
thank you. My time is expired.
    The Chairman. The time of the gentleman has expired.
    The Chair recognizes the gentleman from California, Mr. 
McClintock.
    Mr. McClintock. Thank you, Mr. Chairman.
    Mr. Holsinger, what other fields of law do we provide for 
citizen prosecutors? I know we do that for the ADA. That has 
been a nightmare to the citizens of my District, where we are 
watching a horrendous proliferation of predatory lawsuits being 
undertaken by these citizen prosecutors. Are we seeing the same 
thing with the ESA?
    Mr. Holsinger. Absolutely. The group, WildEarth Guardians, 
just in the past three years, has filed over 145 cases. I 
mentioned Center for Biological Diversity. There are a handful 
of other actors that are doing similarly.
    Mr. McClintock. And how are these settlements arrived at?
    Mr. Holsinger. Often, as Mr. Patterson testified, these are 
the result of missed deadlines. If the agency misses their 12-
month finding or their 90-day finding, these groups can 
litigate. The agency says, gosh, we are overwhelmed with 
litigation. We missed a deadline here. We will agree to 
consider this within so many----
    Mr. McClintock. And these are generally findings in, well, 
cases like the San Diego school project, for example?
    Mr. Holsinger. Yes. So if the agency----
    Mr. McClintock. But when these settlements are arranged 
between the Government and the citizen prosecutors, what role 
do victims like the San Diego Schools play in the settlement 
discussion?
    Mr. Holsinger. I can tell you: None.
    Mr. McClintock. Are there any other fields of law other 
than the ADA where we allow this kind of rampant abuse of our 
legal system by self-appointed citizen prosecutors?
    Mr. Holsinger. Not that I am aware of.
    Mr. McClintock. Is it something we ought to repeal in its 
entirety?
    Mr. Holsinger. You know, I think the Act serves a good 
purpose. The citizen suit provision is clearly one of the areas 
that is ripe for a second look.
    Mr. McClintock. We were told that this has helped 
enormously with the salmon populations. But we have held a 
number of hearings on at this in the Pacific Northwest, and 
what we found is most of this is specific to caudal 
oscillation, a naturally occurring ocean current that shifts 
its pattern about every decade or so.
    For the last decade, it was favoring Alaskan waters, where 
they were seeing record salmon runs, while we were watching 
declining salmon populations in the Pacific Northwest from 
Washington down to California. Now we have seen the current 
shift back. You are seeing declining runs in Alaska, but 
burgeoning runs in the Pacific Northwest.
    Is the ESA really helping in this respect?
    Mr. Holsinger. I think in many cases it stands much more in 
the way of good conservation work. As the agency folks that I 
referenced have testified, it is often a hindrance.
    Mr. McClintock. Has anyone tried to quantify the economic 
cost to this Nation of this lunacy?
    Mr. Holsinger. Congressman, this very Committee a few years 
back did a report that estimated the cost of the ESA approached 
$3 billion to landowners, local governments, and the like each 
year.
    Mr. McClintock. How much did it just cost the San Diego 
City Schools? How was the economy helped by the ESA litigation 
that caused the disruptions in your planning?
    Mr. Stokes. Well, so far, our costs that we have incurred 
as a result of the injection have been approximately $5.8 
million of additional fees.
    Mr. McClintock. And so $5.8 million that was supposed to go 
for school construction instead went into the pockets of 
lawyers like the fellow sitting next to you.
    Mr. Stokes. It went into the pockets of lawyers paying our 
consultants. And again, we have two attorneys working on this, 
just trying to move it along.
    And if I might, Mr. McClintock, the process is such that if 
we do not comply with what is coming back to us as comments, 
then we cannot obtain our incidental take permits. We cannot 
obtain these things. So we really, to a point, have no 
recourse. Even if our attorneys get involved, we have no 
recourse to resolve this except to do what we are being told to 
do.
    Mr. McClintock. Mr. Patterson, what recommendations could 
you make? I would start by suggesting that we ought to count 
the damn hatchery fish. On the Klamath, we were told we have to 
tear down four perfectly good hydroelectric dams because of a 
catastrophic decline in salmon. And I said, well, why does 
somebody not build a fish hatchery?
    And they said, well, we have a fish hatchery at Iron Gate. 
It produces 5 million salmon smolts a year. 17,000 return every 
year as fully grown adults to spawn. But they will not let us 
include them in the ESA counts.
    Mr. Patterson. I think we need to--there is a public policy 
question. Do we assume a burden to preserve every species that 
exists today when we know that there are tens of thousands of 
species that became extinct long before man ever set foot on 
this planet?
    The standard that is inherent in the opposition, or in the 
Center for Biological Diversity, et cetera, is that every 
single species must be preserved. There are some that are going 
to naturally, even absent man's presence, go away. But we have 
created a burden that is not achievable.
    How do we make that triage? I do not know, to answer the 
question from the gentleman from New Jersey. I do not know, but 
something. What we have now is created to fail.
    The Chairman. The time of the gentleman has expired.
    The Chair recognizes the gentlelady from California, Mrs. 
Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chairman.
    A question that I have for all of you, and I think all of 
you more or less agree, from what I am hearing, is that there 
is not adequate funding to be able to get some of the 
assistance to the areas. Am I correct? You are talking about 
funding to the agency to be able to help, whether it is 
permitting or getting your caseload down?
    Mr. Holsinger. Congresswoman, that question was first 
addressed to me. I will take a first stab at a response.
    I do not think funding for the agency is the issue. My 
query was whether that was additional funding for the States 
because the States have primacy over wildlife.
    Mrs. Napolitano. Correct. That is the idea, is to be able 
to allow more funding for the States to be able to help the 
Agencies locally.
    Mr. Holsinger. Not if it is funding that goes to Fish and 
Wildlife Service. But if it is funding to promote State 
conservation or private conservation, I think that is 
absolutely a good thing.
    Mrs. Napolitano. Anybody else?
    Mr. Rohlf. Representative, part of the reason that it takes 
so long to list many species is that Congress continually 
limits the listing budget of the Agencies needed to go through 
the listings.
    And so rather than those artificial caps on money that the 
Fish and Wildlife Service can spend in going through its 
backlog of listing species, this Committee could increase the 
listing budget and allow species to get on the path of recovery 
much sooner.
    Additionally, as I mentioned, recovery funds, funds that 
actually fund on-the-ground recovery and restoration efforts 
for listed species, are woefully inadequate. So additional 
funds to both the Agencies and the States for recovery would be 
a great step.
    Mrs. Napolitano. Thank you. Short answers because my time 
is running out sir. I am sorry.
    Mr. Stokes. Thank you. I think funding is only part of the 
issue. I think if you just throw money at it----
    Mrs. Napolitano. Fine. No, I understand.
    Mr. Patterson. Time is money and money is time. If you 
increase the time available to the U.S. Fish and Wildlife to do 
their job, you will have fewer lawsuits because that is what is 
triggering lawsuits, is that 12-month period.
    If you increase that period of time, you have fewer 
lawsuits. If you have fewer lawsuits, you will have more staff 
time dedicated toward doing the research as opposed to 
responding to litigation.
    Mrs. Napolitano. Thank you.
    Professor Rohlf, there are lots of claims that the 
nonprofit environmental organizations make a significant 
portion of their income, or, quote, ``get rich,'' from bringing 
ESA-related lawsuits against the Government. Is that accurate?
    Mr. Rohlf. Well, sometimes I wish it was. But 
unfortunately, that is not the case. The Center for Biological 
Diversity, for example, that many people have raised, gets 
perhaps 2 percent or less of its budget from attorney fee 
awards. And nobody is getting rich off of this.
    Our clinic employs some of the best lawyers in the Pacific 
Northwest--not just environmental lawyers, but the best lawyers 
in the Northwest. And we pay them; we can afford to pay them 
about half of what somebody fresh out of law school makes at a 
big firm here in D.C.
    Mrs. Napolitano. Thank you. But why does it take so long 
for the recovery of some species? And I must add, I keep 
telling people endangered species, yes, there are some that 
have been extinct for many, many years. But guess what, guys? 
We are also a species, man. So we need to protect others so 
that we can protect ourselves.
    Professor, what factors most aid listed species' recovery?
    Mr. Rohlf. Well, you cannot regrow an ancient forest in a 
couple of years. You cannot restore an aquatic ecosystem that 
humans have completely re-plumbed, like the Columbia and Snake 
Rivers, overnight. And so many of these species declined over 
decades, and to think that we can put them on a list and, in a 
couple of years say, everything is great, and take them off, is 
simply impossible.
    However, most species are recovering. The Endangered 
Species Act is working, according to the timeline of those 
recovery plans.
    Mrs. Napolitano. Thank you. And while you are at it, would 
you be able to comment on whether or not ESA did or did not 
play a role in the recovery of the salmon in the West Coast and 
the economic benefit to not only the fishermen but the Nation 
as a whole? Because that brings money into our pot.
    Mr. Rohlf. In my view, the Endangered Species Act has 
played a huge role in salmon recovery throughout the Northwest. 
As a result of a court decision, for example, dam managers now 
have to spill more water through the dams to protect juvenile 
salmon that are migrating down to the sea, and that has 
increased the survival of both hatchery as well as wild runs up 
to 95 percent.
    Mrs. Napolitano. Thank you. And the biomedical industry has 
show protected species can be the source of lifesaving 
medicines such as the revolutionary cancer drug Taxol, derived 
from the bark of the Pacific yew tree, a species native to 
Oregon, Washington, and Alaska.
    Does protecting biodiversity have other tangible benefits 
to the human health and our economy?
    Mr. Rohlf. Well, it has huge benefits, Representative. Just 
to give you--I see we are almost out of time. But just to give 
you something I thought of on the way over, I saw a slogan on a 
taxi that said, ``West Virginia, Wild and Wonderful.'' I guess 
they rejected, ``West Virginia, Paved and Pretty Good.'' So I 
think that sort of instinctively shows the value that we place 
on biodiversity.
    The Chairman. The time----
    Mrs. Napolitano. Thank you. Thank you, sir.
    The Chairman. The time of the gentlelady has expired.
    The Chair recognizes the gentlelady from South Dakota, Mrs. 
Noem.
    Mrs. Noem. Thank you, Mr. Chairman.
    Professor Rohlf, I have a question for you. What are the 
qualifications for placing a species on the Endangered Species 
List?
    Mr. Rohlf. The U.S. Fish and Wildlife Service and the 
National Marine Fisheries Service must determine, based on the 
best science available, that the species meets the definition 
of ``threatened'' or ``endangered'' under the statute.
    Mrs. Noem. So I recently read an article, and I wish now 
that I would have copied it and kept the information with me. 
But it was on the Eastern diamondback rattlesnake that was 
being considered for placement on the list, and it was 
specifically because it was being harassed by individuals and 
people--not because there was not a plethora of them available 
throughout the areas where they live, but because of how they 
were being treated by humans.
    Is this a qualification that will allow a species to be 
listed on the list?
    Mr. Rohlf. Well, to the extent that human activities are 
harassing or harming the species such that they face potential 
extinction, yes. It is a factor that should be considered.
    Mrs. Noem. Anyone else on this panel would like to weigh in 
on a topic like that, where a decision can be made on 
activities in an area that can add a new species to the list? 
Mr. Holsinger?
    Mr. Holsinger. The best available science, as a standard, 
has received a great deal of scrutiny. We have seen many cases 
where we believe the agency is making decisions that are 
actually contrary to the best available science, and listings 
in our State--the Preble's meadow jumping mouse is a great 
example--there, the agency biologists say that no one can tell 
the Preble's meadow jumping mouse from another meadow jumping 
mouse unless you actually kill it and measure the inside of its 
cranium.
    So we have gotten to levels of absurdity with these things, 
and it is time to set that right.
    Mrs. Noem. Yes. That was how I felt after reading that 
article. Well, thank you for your clarification on that.
    Commissioner, I have a question for you. I understand that 
the Western States Land Commissioners Association, which 
includes Texas and 22 other States, including my home State of 
South Dakota, passed a resolution earlier this year that will 
raise concerns about the mega-settlements between Fish and 
Wildlife and--would you please explain that resolution and the 
goals?
    Mr. Patterson. Well, there are 23 states that--we have a 
convention every summer and every fall, 23 States. And by the 
way, the president, I think, the current president is Jerry 
Johnson, the elected Commissioner of Public Lands from the 
great State of South Dakota.
    And the concern was across the board. Even those who 
considered themselves green--you know, the Commissioner from 
New Mexico, the commissioners from other States who are of a 
different party than I--we have all realized that what we have 
today, it is not working. And we, I think, unanimously passed a 
resolution to have someone take a look at the ESA and how it is 
working because it is not.
    Mrs. Noem. Do you think a group such as this could make 
much better decisions for their local States and areas than 
people at the Federal Government level that are looking at it 
from a much more distant perspective?
    Mr. Patterson. Absolutely. And I do not fault the Federal 
Government, folks. I do not fault the folks at Fish and 
Wildlife, or NMFS, or Secretary Salazar, or Under Secretary--
they are trying the best they can. But they are hamstrung by a 
statute that is in functional failure at the present time.
    Mrs. Noem. Thank you. I appreciate that.
    And with that, Mr. Chairman, I will yield back.
    The Chairman. With the gentlelady yield to me?
    Mrs. Noem. Certainly.
    The Chairman. I want to just make an observation, since I 
have some time. The issue has been brought up about recovering 
species, and there have been several references to my part of 
the country. And I mentioned that the life cycle of a salmon is 
roughly five years. It may vary a year or two on either end. 
And the salmon runs coming back into the Columbia and Snake 
River systems are greater than they have been since we started 
keeping records in 1938.
    So Mr. Holsinger, I would like to ask you a question since 
you deal with this in the law. At what point, if you are having 
tremendous salmon runs coming back on a consistent basis, do 
you say, OK, I think we have recovered them? Essentially if the 
life span of a particular species is five years?
    Mr. Holsinger. Mr. Chairman, a great question, and one 
that, again, is mired in this question of science. When you are 
counting the DNA of a salmon that, for all intents and 
purposes, a salmon is a salmon in the Northwest or the 
Northeast--but when you are listing based on different 
tributaries and these minute differences in DNA that probably 
do not rise to the level beyond differences in individuals like 
you and I, something has gone horribly wrong.
    And in our case in Colorado, under State leadership, we 
crafted our own recovery goals because the Feds did not for our 
listed fish on the Colorado River. But it took tremendous 
effort and tremendous pressure by the State to say, no. Let's 
set a goal and let's meet it.
    The Chairman. For the record, the statement was made that 
there has been a tremendous success in recovering because of 
the Endangered Species Act. I would just point out, for the 
record, that there is a spill that was called for on the Snake 
River--or on the Columbia River, a summer spill to save species 
of fish.
    And data shows that it saved--it cost something like $70 
million in lost revenue to the power agencies to save 24 fish. 
That is hardly economic success, in my view.
    The Chair recognizes the gentleman from the Northern 
Marianas, Mr. Sablan. And I thank the gentlelady for yielding 
to me.
    Mr. Sablan. Thank you very much, Mr. Chairman.
    Good morning. Mr. Rohlf, Mr. Patterson suggested that we 
should increase the amount of time Federal Agencies have to 
respond to petitions under the ESA. But are not many species 
running out of time?
    Mr. Rohlf. Yes, they are.
    Mr. Sablan. I know that because I come from the islands, 
where we have species that are seriously in danger, and whether 
that is on land or on ocean.
    Mr. Rohlf. Oftentimes Agencies cannot get to those listing 
decisions simply because they do not have the budget to do so.
    Mr. Sablan. And so my question is--and you noted also 
earlier, too, like a question to my colleague from California. 
You noted that funding has not been sufficient to fully do the 
job of getting all species on the path to recovery.
    Many species went through years if not decades of decline 
prior to their listing under ESA. So is it realistic that 
recovery can just occur overnight, especially if there are 
insufficient funds in Federal agency budgets, for them to do 
their job?
    Mr. Rohlf. No, it is certainly not. And even though we are 
making significant strides and recovering many species, that 
does take time, just as it took time to get them to that point 
that we need to protect them.
    Mr. Sablan. All right. Mr. Holsinger, good morning, sir. I 
am not a lawyer, so please help me understand this.
    You said that you know that environment groups are bringing 
hundreds and hundreds of lawsuits over the ESA. Yet the Federal 
court system claims that there were just 240 lawsuits, 240 
lawsuits filed against the Federal Government in all 
environmental matters, in the 12 months ending June 30, 2011.
    So where is this flood of ESA suits by environmental 
groups?
    Mr. Holsinger. Thank you, Congressman. The research that we 
did was based on environmental groups that filed claims against 
the Federal Government over the past several years in the 
Federal courts, and raising Endangered Species Act cases.
    What we found, again, is that hundreds of cases have been 
filed, the majority of which are against Agencies--the 
Department of the Interior, for example--and the majority of 
which raise ESA as claims.
    Mr. Sablan. So you are saying--because what I have here is 
that there were 240 filed in 2011. So you are saying since time 
immemorial. And now, of course, we can always say, you know, 
hundreds of thousands, tens of thousands. But we are talking 
here about current events.
    Could you provide your analysis to the Committee for the 
record, please? We would really like to see that.
    Mr. Holsinger. Yes, I would be happy to.
    Mr. Sablan. All right. So one more question, if I may. The 
United States Constitution States that, ``Congress shall make 
no law abridging the freedom to petition the Government for a 
redress of grievances.''
    When a suit is brought against the Federal Government under 
ESA or any other Federal law, the plaintiff is seeking that 
redress. Do you believe the First Amendment should be changed 
to only apply to some people's grievances, Mr. Holsinger?
    Mr. Holsinger. No. I believe the Endangered Species Act 
should be changed.
    Mr. Sablan. So we should change the Endangered Species Act 
so only a selected or a certain number of people would file 
grievances or petitions against our Government?
    Mr. Holsinger. There is no doubt that the citizen suit 
provision should be changed.
    Mr. Sablan. But are you talking about citizens' groups? So 
environmental groups are not the only ones who can recover 
under ESA's citizen suit provisions. Correct?
    Mr. Holsinger. I suppose that is correct, but the majority 
of litigation is certainly----
    Mr. Sablan. Instead, a broad spectrum of people, including 
farmers and ranchers, can also file suit under this provision. 
Is that also correct?
    Mr. Holsinger. I know of perhaps one case where that has 
occurred. Perhaps.
    Mr. Sablan. But it is a fact that farmers and ranchers can 
also file grievances under this provision. Right?
    Mr. Holsinger. But they never--virtually never recover.
    Mr. Sablan. But it does not matter whether they did or they 
did not. It is just they can.
    Mr. Holsinger. I think it is very relevant that they have 
not.
    Mr. Sablan. Professor Rohlf, do you agree with his 
statement?
    Mr. Rohlf. Actually not. Industry groups, property owners, 
routinely file lawsuits under the ESA's citizen suit provision 
as well as the Equal Access to Justice Act. As we have heard 
already, the vast majority of lawsuits challenging critical 
habitat decisions by the U.S. Fish and Wildlife Service are 
filed by property owners and industry, and oftentimes those 
groups recover attorney's fees as well.
    So many of the attorney fee payments that go out under EAJA 
or the Endangered Species Act that involve endangered species 
issues actually go to lawyers like Mr. Holsinger for industry 
and property owners.
    Mr. Sablan. Thank you.
    The Chairman. The time of the gentleman has expired.
    The Chair recognizes the gentleman from Tennessee, Mr. 
Duncan.
    Mr. Duncan of Tennessee. Thank you very much, Mr. Chairman. 
This is a very important hearing. It is important to my State 
of Tennessee, which ranks fifth on the endangered species--on 
the number of endangered species listed.
    Our briefing paper says that there were 570 ESA-related 
lawsuits filed in just the last four years, not counting the 
hundreds of other environmental-type lawsuits. It is almost 
impossible to calculate the costs of these lawsuits to the 
courts, to Federal, State, and local Agencies, and especially 
to businesses.
    One thing I do know, we have sent many millions of good 
jobs to other countries for the last 40 or more years, and we 
have driven up costs for everyone on everything. We have 
destroyed millions of jobs, in large part, or at least a very 
high percentage, based on the environmental laws.
    And I have noticed over the years that most of the 
environmental radicals seem to come from very wealthy or very 
upper income families. Perhaps they do not realize how many 
poor and lower-income and working people have been hurt by 
destroying all these jobs and driving up all these costs, but 
it has certainly happened.
    In fact, Patrick Moore, a founding member of Greenpeace, 
once said in an interview, ``The environmental movement 
abandoned science and logic somewhere in the mid-1980s just as 
mainstream society was adopting all of the more reasonable 
items on the environmental agenda. To stay in an adversarial 
role, those people had to adopt ever-more extreme positions 
because all the reasonable ones were being adopted.''
    And I read with great interest this portion of our briefing 
paper that says, ``Even the threat of lawsuits influences 
Federal agencies' actions or lack thereof on citizens' 
entities. They go through the proper environmental permitting 
processes required by the law. It often delays projects for 
years.''
    In Montana, for example, a mining project that had gone 
through environmental reviews and received all required permits 
in 1993 now has to spend millions of dollars on updating 
environmental impact statements. The mining company has been 
told by the FWS that it will need to pay for contractors to 
help them complete a biological opinion related to grizzly 
bears, but will have no assurance that the project will move 
forward.
    A couple of months ago, I had the head of CSX Railroad who 
came to see me and told me that they had tried for seven and a 
half years to get permits to mine phosphate in Florida on 
property that they had owned for many years. They finally gave 
up and went down to Peru, went to Peru and got approval in just 
a few months' time. Hundreds of jobs, all that money, and there 
are so many examples that is it really sad what we are doing to 
our own people.
    When I graduated from the University of Tennessee in 1969, 
people with just a bachelor's degree could find good jobs 
managing factories or businesses. Then we started sending all 
those jobs to these other countries. And so all these people 
decided that they had to go to graduate school.
    Many, many hundreds of thousands, unfortunately, went to 
law school. I am a lawyer and a judge, but I can tell you just 
yesterday there was an article in the paper about that there 
are far too many lawyers out there. And in spite of the fact 
that we have far too many lawyers, these courts are approving 
these fees of $400 and $500 an hour as if we had a shortage of 
lawyers. It is just ridiculous, and it is really said what has 
happened because of the ESA and some of these other Acts.
    I heard this lawyer, a woman lawyer, brag about how that 
she specialized in these government-type lawsuits like this. 
But she was saying this as justification for settlement, that 
she had never had a client who received nearly as much as she 
had in legal fees. I think that is sad, and I am very glad that 
I can say that I have never had a client that did not receive a 
whole lot more than I ever received.
    But this law needs some drastic changes or we are going to 
continue to hurt a lot of poor and lower-income and working 
people in this country. Thank you, Mr. Chairman.
    The Chairman. I thank the gentleman.
    And the Chair recognizes the gentleman from California, Mr. 
Costa, for five minutes.
    Mr. Costa. Thank you very much, Mr. Chairman.
    A number of Endangered Species Act decisions out of the 
District of Columbia and Federal courts have characterized 
their roles as hyper-deferential.
    And we know, as a result of the first inaction of the 
Endangered Species Act, going back to the 1970s, based upon a 
lot of--various court decisions, the application of the law 
certainly has changed; at least, it is my view it has changed, 
and I think many others concur with that view.
    Is it appropriate--and I am not sure which gentleman to 
respond to--for a Federal agency to defer decisions, even when 
an agency may have ignored data or failed to use the tools 
available to a practicing scientist, or one that acted contrary 
to prevailing norms relevant to the fields of the scientific 
inquiry? Who would like to try to respond to that? Mr. 
Holsinger? Do you want to take a stab at that?
    Mr. Holsinger. Thank you, Congressman.
    Mr. Costa. Briefly, because there are a couple of other 
questions I want to get to.
    Mr. Holsinger. You bet. The issue of agency deference has 
evolved considerably due to the huge number of cases over the 
Endangered Species Act. Professor Rohlf testified as to the 
notion of political interference with decisions.
    I can tell you, from scouring thousands of pages of 
administrative records, the political interference that I saw 
was merely asking scientists, ``What is your support for this? 
What is your authority for this proposition?''
    So I think it is critical that there be a thorough and 
transparent vetting of listing decisions, and sticking to the 
letter of that best available science.
    Mr. Costa. But the science, as we know, changes also as we 
learn more.
    Mr. Holsinger. Absolutely. And that is----
    Mr. Costa. Go ahead.
    Mr. Holsinger. That is one of the reasons I think it is so 
critical to focus our scarce resources on species. These 
debates over genetics and taxonomy and subspecies and distinct 
populations, we are spending our scarce conservation dollars 
unwisely.
    Mr. Costa. I want to get there, but if some of you others 
want to weigh in, please do. That raises the question of--and I 
have seen it in a host of different areas; Kern County that I 
represent has, I think, perhaps the highest amount of listed 
endangered species in the State of California.
    We have had some habitat conservation plans that have had 
some success. But it seems to me treating those as a totality 
of an ecosystem is far more effective than on a species-by-
species basis. Would you concur or not?
    Mr. Holsinger. I think land conservation that takes into 
account multiple species under mechanisms like HCPs, CCAAs, are 
definitely steps in the right direction.
    Mr. Costa. We have had problems with a host of issues on 
water-related cases, where it seems to me that has not been the 
case. We look at one of the stress factors in the case of the 
Sacramento-San Joaquin delta system, and we determine, ah-hah, 
that is the only one we can really control, i.e., the export of 
water, when we ignore invasive species, when we ignore other 
impacts of ammonia in the water, discharges, other--and it 
seems to me that, as a matter of fact, the National Academy of 
Science at this particular instance has come down very hard on 
this.
    How do you treat a species if you only look at one stress 
factor that has been listed?
    Mr. Holsinger. Well, the Act requires consideration of 
several different factors, including adequacy of regulatory 
mechanisms, other threats to the species. So I think part of 
the process the agency goes through is to examine many 
different factors.
    Mr. Costa. But in practice, that is not the case, in the 
experiences that I have had to deal with.
    Let me ask one other question to any of you. Should the 
social implementations be taken into account, whether it is a 
school district in San Diego or whether it is land use 
decisions in Texas, as to the impact of a listing that has harm 
to both the social well-being and the economics of a given 
area?
    Mr. Patterson. I think if you talk social, if you, say, 
substitute economic, then absolutely the answer is yes, in my 
opinion. And I think there may be provisions for that in the 
Act--someone who knows the Act better than I do.
    But you have to look at a balance. I mean, this is a 
constant tension. There are thousands of species that expired 
long before we were here, and to presume that we have to 
protect all of them may be creating bar that is too high to 
cross.
    Mr. Rohlf. Mr. Representative, I think the best policy is 
back in 1973, this House recognized that species represent 
potentially invaluable resources. And we never know what 
benefits they can provide. And so simply throwing some away 
because we do not see those benefits now is squandering 
investments that we need for our future.
    Mr. Costa. My time is expired. I do not think I said that. 
I asked whether or not they should be weighed in as a part of 
the consideration. You took it to the extreme. Thank you.
    The Chairman. Thank you, Mr. Costa.
    At this time the Chair recognizes the gentleman from 
Colorado, Mr. Coffman, for five minutes.
    Mr. Coffman. Thank you, Mr. Chairman. Thank you, Mr. 
Chairman, for taking the lead on this very important issue of 
modernizing the Endangered Species Act. Although the intent of 
this Act was to save species from extinction, it has devolved 
into a tool for litigation at the expense of thousands of 
proposed economic development projects.
    The ESA was not meant to create jobs for trial lawyers. 
Rather, it was meant to help and protect plants and animals. 
However, the recovery rate of species listed under the ESA is 1 
percent since the bill's inception in 1973.
    Further, there have been billions of dollars in lost 
opportunity for economic development and job creation because 
of the endless litigation arising from the ESA. The result is 
that, currently, we are not saving species, and the ESA 
incentives for lawsuits are antagonistic to economic 
development. Clearly, the system is not working.
    For this reason, it is imperative that we look at how to 
modernize the ESA to make it more effective in its mission of 
savings species from extinction. I want to thank the witnesses 
that are here today, and I have a few questions.
    Mr. Kent Holsinger, I know you are familiar with the 
Preble's meadow jumping mouse. Many believe that the listing of 
the Preble's meadow jumping mouse was motivated by the 
environmentalists' desire to stop economic development and 
growth in Colorado, not actually protected species.
    For example, water managers in my district were forced to 
spend hundreds of thousands of dollars to construct mouse 
tunnels for the Preble's jumping mouse. What are your thoughts 
on advocacy groups using ESA as a tool to stop economic 
development and growth?
    Mr. Holsinger. Thank you, Congressman. It is no doubt that 
these activist groups, their attorneys, the consultants that 
are hired, have a vested interest. In many cases, academia does 
as well. If they publish papers on a species that is listed 
under the ESA, that is a huge deal for them They receive 
funding to study these species. It can make or break careers in 
academia.
    What we saw with the Preble's mouse, the most active 
opponents of delisting were the consultants that companies and 
entities and agencies and landowners were forced to hire to go 
look for the mice as a result of a consultation with the U.S. 
Fish and Wildlife Service.
    So again, if you follow the dollars, the motivations of 
many of these things can be quite clear.
    Mr. Coffman. I know you commented on this some, but in 
Colorado under the Owens Administration, there was a program, 
an effort, to help endangered species in order to get them 
delisted.
    And I know you referenced that in earlier testimony, but I 
wonder if you can go into a little bit more detail on that and 
whether or not you think that is a good example for the country 
going forward.
    Mr. Holsinger. Yes. This is some years back, when I was at 
the Department of Natural Resources. We made it a State 
priority to recover and work toward delisting of species.
    And again, the States are where wildlife management occurs. 
That is where we are closest to the ground, closest to the 
landowners, and that is where these conservation efforts, these 
conservation dollars, should be occurring.
    The Federal law, again, has devolved into this endless 
array of litigation. But good things can be done at the State 
and local levels. We see local sage grouse working groups, for 
example, coming together, trying to figure out how to do good 
things for the species and for the habitat. So there are very 
good things occurring at the State and local level.
    Mr. Coffman. Can you give me an example of one specific 
species that you worked with that you had success on during 
those years under the Owens Administration?
    Mr. Holsinger. Greenback cutthroat trout was an interesting 
example, state efforts to recover and delist that. Were it not 
for the 2002 drought, we had reached population numbers where 
we were about ready to get off of the Federal list, again due 
to Federal delegation of authority under the ESA to the States 
so the States could do these things.
    Mr. Coffman. Thank you, Mr. Chairman. I yield back.
    The Chairman. All right. Thank you. The gentleman yields 
back.
    At this time we recognize the gentleman from Michigan, Mr. 
Kildee.
    Mr. Kildee. Thank you, Mr. Chairman.
    Professor Rohlf, the biomedical industry has shown that the 
protected species can be the source of lifesaving medicines 
such as the revolutionary cancer drug Taxol, derived from the 
bark of the Pacific yew tree, a species native to Oregon, 
Washington, and Alaska.
    Does protecting biodiversity have other tangible benefits 
for human health and the economy?
    Mr. Rohlf. It certainly does, Mr. Representative. As I 
mentioned, in the Pacific Northwest, efforts to restore salmon 
have brought hundreds of millions of dollars in economic 
benefits to local communities. Another good example I would 
raise comes from my hometown of Portland, Oregon.
    The City of Portland basically takes water out of a stream 
and pumps it into the homes of hundreds of thousands of its 
water customers. It does not have any expensive treatment 
facilities or fancy equipment. It just pumps that water right 
to our homes.
    That water comes from a protected ecosystem on the flanks 
of Mount Hood that is also home to spotted owls and salmon. 
Basically, what that ecosystem does for us is collect water, 
clean it, and deliver it right to us. So that is the type of 
example of the benefit of ecosystem services that directly 
benefits me, because I drink it, and the City of Portland, 
which essentially gets clean water for free.
    Mr. Kildee. Thank you very much. Another part of that--the 
zebra mussel was unintentional introduced into the Great Lakes, 
upon which I live. And that species, are there other species 
that could be introduced into the Great Lakes that would have 
an enhancing effect upon the Great Lakes?
    Mr. Rohlf. It is possible, Mr. Representative. However, 
introduced species, as you mentioned, oftentimes put ecosystems 
and jobs and our economy at huge risk. Zebra mussels, for 
example, if they get into the Columbia River ecosystem, we are 
in for some serious economic devastation.
    So that is why a lawsuit that my environmental law clinic 
brought to help control invasive species will provide 
tremendous economic benefits to our society by preventing those 
sorts of introductions of invasive species.
    Mr. Kildee. We right now in Michigan, of course, and in 
Canada, the streets around the Great Lakes are worried about 
the Asian carp, which may have already left some of its DNA in 
the lower part of the water there.
    When I was in the State Legislature in the late 1960s/ 
early 1970s, we introduced the salmon, Coho and Chinook salmon, 
which probably, Mr. Holsinger, are maybe cousins to the salmon 
out in the Northwest.
    Is there any danger when one introduces even a similar 
species, even though the DNA may be--I will address this to 
both of you, maybe Mr. Holsinger first--the DNA may be very 
similar or almost exact. But is there any danger of introducing 
some disease by introducing fish of the same species from 
another area into the, say, Great Lakes?
    Mr. Holsinger. Congressman, I am not sure that I have heard 
of such an instance. I do know that recovery efforts with the 
listed fish in Colorado that we have, hatcheries have been 
integral to those. So I would hate to see limits on the ability 
to do such things.
    Mr. Kildee. Well, I can recall voting for the introduction 
of the Coho and the Chinook, and it seems to have been a 
successful thing. I do worry about to make sure that we 
thoroughly examine the possibilities because aside from the DNA 
being basically the same, we know, within our human species, 
one cousin may have the Huntington gene and the other may not, 
yet their DNA basically is that of the human.
    So how far should we go in trying to determine whether we 
may be inadvertently introducing something that could be 
harmful?
    Mr. Holsinger. Congressman, it is a good question. I am not 
sure I have an answer.
    Mr. Kildee. OK. Thank you very much. Thank you.
    The Chairman. Thank you, Mr. Kildee.
    At this time we recognize the gentleman from Idaho, Mr. 
Labrador, for five minutes.
    Mr. Labrador. Thank you, Mr. Chairman.
    Mr. Stokes, this question may have already been asked, but 
I am just really curious about--thinking about the state of the 
economy right now, thinking about our school districts. You 
know, we struggle in Idaho, as I am sure you struggle in 
California, with having enough money for building schools and 
helping our children.
    I believe it is about $7,000 per pupil that you spend each 
year in California. Is that correct?
    Mr. Stokes. Approximately. That is my understanding as 
well.
    Mr. Labrador. What was the amount of money that was 
budgeted for construction of your school?
    Mr. Stokes. I believe the original--because it was so long 
ago--the original construction amount that was originally 
budgeted out of the bond was $20 million. Then as things began 
to progress with this, that budget was increased to $30.8 
million.
    Mr. Labrador. And how much has been spent on litigation?
    Mr. Stokes. That I do not have an exact answer for you, but 
I would estimate right now, under my tenure as the program 
manager for that, between $100,000 and $200,000 to date, in the 
last three and a half years.
    Mr. Labrador. And what I think is missed sometimes is, you 
know, we are talking about the cost of attorney's fees and 
whether somebody should get 120 or 400, which both of them are 
high.
    But really, it is the opportunity cost. That really is the 
biggest cost to the community. Can you estimate what your 
opportunity cost has been in this process?
    Mr. Stokes. Can you go back and then explain that, by the 
opportunity cost?
    Mr. Labrador. Well, what could you have been doing instead 
of wasting all your time on this litigation and wasting all 
your energies on trying to figure out if a little shrimp is 
going to be saved or not? What could you have been doing during 
this time in your school district?
    Mr. Stokes. Well, let me go back and answer that a little 
different way. If the lawsuit was not filed, the injunction was 
not filed, the school would be constructed and would have be 
populated in September of 2008. We would have had several--
well, literally hundreds and hundreds of kids go through the 
school already.
    We would have had kindergartners; this would be their fifth 
or sixth grade graduating class as of this year. We would have 
been able to depopulate overcrowded schools that are in the 
close vicinity. We have three immediate schools that we would 
have depopulated immediately and put into Salk to populate 
them, thus reducing the class size at the overpopulated 
schools, or the schools that are at capacity right now, which 
is a real challenge for the district, considering the economics 
and the quality of education.
    We are actually looking at increasing class sizes due to 
the budget, and construction of the school would take the 
pressure off of that in that community.
    Mr. Labrador. So in a time that you are actually thinking 
about increasing class sizes, and the science--there are 
different debates about whether that is a good thing or a bad 
thing----
    Mr. Stokes. Right.
    Mr. Labrador [continuing]. But the reality is that you had 
the money allocated for this particular school.
    Mr. Stokes. We did.
    Mr. Labrador. This is something that was actually approved 
by the voters of the area.
    Mr. Stokes. That is correct. Correct, sir.
    Mr. Labrador. Correct. In spite of having some financial 
difficulties, the people decided that they wanted another 
school. And now, because of just a simple lawsuit, you are not 
able to provide the services that you want to provide.
    Mr. Stokes. That is correct. Just a quick story on that. 
One of the neighbors directly across from the Salk school site, 
when the school was originally promised to them, I believe his 
daughters were in upper elementary school. They now both have 
their PhDs. They were evidently on a fast track, but according 
to him, they both have their PhDs now. So a long delay.
    Mr. Labrador. Amazing.
    Mr. Rohlf, the current Federal statute for the Equal Access 
to Justice Act and the Judgment Fund provide that attorney's 
fees cannot exceed $125 per hour unless the court determines 
that an increase in the cost of living or a special factor such 
as the limited availability of qualified attorneys for the 
proceedings involved justifies a higher fee.
    Why is this statutory rate of $125 per hour not adequate 
compensation, in your opinion?
    Mr. Rohlf. Well, actually, if you look at the time and 
effort spent on a case, many, many of the hours that one spends 
on a case are not compensable. An average law firm working for 
a large corporation on endangered species issues charges about 
$400 or $500 an hour.
    Mr. Labrador. But are they charging the Federal Government 
for that?
    Mr. Rohlf. No. They are charging private entities.
    Mr. Labrador. So they are actually charging the private 
sector. You are charging the Government. Why is that not 
adequate?
    Mr. Rohlf. Well, because although those costs might sound 
high, it is actually very expensive to provide legal expertise 
to a client. And that is why a private firm charges the rates 
that it does.
    Equal Access to Justice Act awards are generally much less 
per hour, and I am not really sure why environmental plaintiffs 
should--or environmental attorneys should expect to provide 
services at far less than the cost charged by the private 
sector.
    Mr. Labrador. Probably because you are getting your money 
from the public sector, and you are also stopping schools, like 
the San Diego School District, from actually doing the job that 
the voters want them to do. But thank you for your time.
    Mr. Gohmert [presiding]. Thank you, Mr. Labrador.
    At this time we will recognize the gentleman from 
California, Mr. Bilbray, for five minutes.
    Mr. Bilbray. Thank you, Mr. Chairman. You know, Mr. 
Chairman, as somebody who has spent 18 years as an 
environmental regulator, $460 an hour and saving the planet, I 
think, is a pretty good compensation for your efforts. I know, 
as a member of the California Coastal Commission or a member of 
the Air Resources Board, there was no way I was charging $460 
to save the planet.
    But I want to thank you for a chance for me to be here 
today. I really want to talk specifically about an item that I 
think everybody should agree is an example of the system not 
working. And as somebody who has been involved in the 
environmental movement before most--in fact, I would challenge 
anybody to say that they were involved in the environmental 
movement in 1970 like I have been.
    But I think all of us recognize the intention of the Act 
has been changed dramatically in implementation. And I guess 
that is what it really comes down to. Consultation has become 
dictation. Mr. Holt talked about the web of life. It is based 
on balance, and checks and balances in Nature.
    Frankly, as someone who has worked with the Act, there are 
not any checks and balances. It is to the point to where the 
absurd is able to be pushed to extreme. And I was actually 
watching President Obama give a speech where he said, ``The 
Federal Government ought to be building more schools.'' And all 
I thought was, Mr. President, the Federal Government does not 
have to build more schools, but it needs to allow local 
communities to build schools. Give the permit for the school.
    I am talking about just the Jonas Salk School, which 
hopefully, if we address this issue, can be built by the time 
to celebrate the 100th anniversary of this great scientist. We 
are talking about, as the President learned, shovel-ready does 
not mean you can build it. Shovel-ready means you have six to 
eight years of litigation before you. And even the President 
pointed out the shock of what a huge gap it is between the 
perception of what is OK to be done and what it takes to 
finally get the permits.
    The fact is, I do not think anyone, when they passed the 
Endangered Species Act, expected a community, a multi-ethnic 
committee like Mira Mesa, to have to wait over a decade just 
for the Federal bureaucrat to say, ``OK, you can start 
construction on a school.''
    And let me tell you, this is a location that I would 
challenge anybody who claims to be an environmentalist to talk 
about. In 1978, this site was graded, graded for the slab. It 
was built in an area where, for 30 years, every environmental 
study that has been done on vernal pools and the fairy shrimp 
has said that constructive wetlands is impossible. Cannot 
happen.
    Thirty years of the best scientists in the world saying 
that the private sector cannot build constructive wetlands in 
lieu of disturbed habitat because the science was not there. 
And now the school is being told, for over a decade, ``Oh, it 
is a miracle. We have a constructive wetland that happened 
accidentally on a site that has been graded, and your kids 
cannot build the school.''
    Let me remind you, at a time that the President is talking 
about, let's get out there and create jobs, this regulatory 
roadblock is blocking 500 construction jobs, and how many 
thousands of kids from being able to be educated in their 
neighborhood. No one who voted for the Act in 1973 expected 
this type of absurdity and extremism to be applied.
    Now, I think, though, Mr. Chairman, we can recognize that 
both sides could look at: How do we address these issues? And I 
think first we have to admit, this is not about trashing the 
environment.
    This is not about the fact of it is either save every plant 
or make every kid--and accept that kids cannot be educated. It 
is about reasonable application, as those of us who have done 
that. The trouble is, the reasonableness has gone to extremes 
because there are no checks and balances. When somebody goes 
before a Planning Commission, they get some review. You do not 
get that review except in courts.
    And let me point out that we have a project that says, Fish 
and Wildlife, let's make a decision a decision within 90 days. 
Do not switch people who come in with new conditions. Do not 
add in new conditions after you have already looked at it for 
ten years. And let's build this school, let's create the jobs, 
and let's move forward.
    And hopefully, we will recognize that if this can happen 
with a school, what about the small business that is trying to 
go over? And I will just say to those who say about the health 
research and the health breakthroughs, the UC Cancer Center was 
being held up for the gnatcatcher. How many lives might have 
been saved if that permit and that expansion and that cancer 
research facility had gone in there?
    There is a cost of over-regulatory activity as much as 
there is a cost to under-regulatory. And so it is the balance 
we are talking about. And Mr. Chairman, I hope that this 
Committee will take a look at the CURED Act. Hopefully 
Democrats and Republicans, those who are active in the 
environmental movement and those who are active in the 
educational institution, can get together and say, ``Maybe we 
can learn from Jonas Salk one more time, and Jonas Salk School 
will be the prototype of how we can finally get this law to 
implement as intended.''
    And I yield back.
    Mr. Gohmert. Thank you. The gentleman had yield back.
    At this point, I would like to thank our panel of witnesses 
for your valuable testimony and for your time in being here. 
Obviously, you are not here because of the great pay that you 
get from the Committee for being here. So we do appreciate your 
interest and your input.
    Members of the Committee may have additional questions for 
the witnesses, and if so, we would ask that you respond within 
ten business days.
    If there is no further business, then without objection, 
the Committee stands adjourned.
    [Whereupon, at 12:08 p.m., the Committee was adjourned.]