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

[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

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COMMITTEE ON NATURAL RESOURCES

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

Don Young, AK Dale E. Kildee, MI
John J. Duncan, Jr., TN Peter A. DeFazio, OR
Louie Gohmert, TX Eni F.H. Faleomavaega, AS
Rob Bishop, UT Frank Pallone, Jr., NJ
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Rush D. Holt, NJ
Paul C. Broun, GA Raul M. Grijalva, AZ
John Fleming, LA Madeleine Z. Bordallo, GU
Mike Coffman, CO Jim Costa, CA
Tom McClintock, CA Dan Boren, OK
Glenn Thompson, PA Gregorio Kilili Camacho Sablan,
Jeff Denham, CA CNMI
Dan Benishek, MI Martin Heinrich, NM
David Rivera, FL Ben Ray Lujan, NM
Jeff Duncan, SC 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.]