[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]







    DEFINING SPECIES CONSERVATION SUCCESS: TRIBAL, STATE AND LOCAL 
            STEWARDSHIP VS. FEDERAL COURTROOM BATTLES AND 
                       SUE-AND-SETTLE PRACTICES

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

                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                         Tuesday, June 4, 2013

                               __________

                           Serial No. 113-22

                               __________

       Printed for the use of the Committee on Natural Resources




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                     COMMITTEE ON NATURAL RESOURCES

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

Don Young, AK                        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 Holt, NJ
Paul C. Broun, GA                    Raul M. Grijalva, AZ
John Fleming, LA                     Madeleine Z. Bordallo, GU
Tom McClintock, CA                   Jim Costa, CA
Glenn Thompson, PA                   Gregorio Kilili Camacho Sablan, 
Cynthia M. Lummis, WY                    CNMI
Dan Benishek, MI                     Niki Tsongas, MA
Jeff Duncan, SC                      Pedro R. Pierluisi, PR
Scott R. Tipton, CO                  Colleen W. Hanabusa, HI
Paul A. Gosar, AZ                    Tony Cardenas, CA
Raul R. Labrador, ID                 Steven A. Horsford, NV
Steve Southerland, II, FL            Jared Huffman, CA
Bill Flores, TX                      Raul Ruiz, CA
Jon Runyan, NJ                       Carol Shea-Porter, NH
Mark E. Amodei, NV                   Alan S. Lowenthal, CA
Markwayne Mullin, OK                 Joe Garcia, FL
Chris Stewart, UT                    Matt Cartwright, PA
Steve Daines, MT
Kevin Cramer, ND
Doug LaMalfa, CA
Vacancy

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














                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, June 4, 2013............................     1

Statement of Members:
    Bordallo, Hon. Madeleine Z., a Delegate in Congress from the 
      Territory of Guam..........................................     4
        Prepared statement of....................................     5
    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 
      Commonwealth of Massachusetts, Prepared statement of.......    82

Statement of Witnesses:
    Brigham, Hon. N. Kathryn, Chairwoman, Columbia River Inter-
      Tribal Fish Commission.....................................    13
        Prepared statement of....................................    15
        Report submitted for the record web address..............    14
    Ferrell, Steve, Wildlife and Endangered Species Policy 
      Advisor, State of Wyoming, Cody, Wyoming...................    33
        Prepared statement of....................................    35
    Jankovsky, Tom, Commissioner, Garfield County, Glenwood 
      Springs, Colorado..........................................    38
        Prepared statement of....................................    39
    Noss, Dr. Reed F., Professor of Biology, University of 
      Central Florida, Orlando, Florida..........................    20
        Prepared statement of....................................    22
    Parenteau, Patrick, Professor of Law, Vermont Law School, 
      South Royalton, Vermont....................................    27
        Prepared statement of....................................    29
    Powell, Tyler, Deputy Secretary of Environment, Office of the 
      Secretary of Environment, State of Oklahoma................     7
        Prepared statement of....................................     9
                                     


 
 OVERSIGHT HEARING ON ``DEFINING SPECIES CONSERVATION SUCCESS: TRIBAL, 
 STATE AND LOCAL STEWARDSHIP VS. FEDERAL COURTROOM BATTLES AND SUE-AND-
                          SETTLE PRACTICES.''

                              ----------                              


                         Tuesday, June 4, 2013

                     U.S. House of Representatives

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to notice, at 10 a.m., in room 
1324, Longworth House Office Building, Hon. Doc Hastings 
[Chairman of the Committee] presiding.
    Present: Representatives Hastings, Gohmert, Bishop, 
Lamborn, MClintock, Lummis, Duncan, Tipton, Labrador, 
Southerland, Flores, Mullin, Stewart, Daines, LaMalfa, DeFazio, 
Bordallo, Costa, Cardenas, Horsford, Huffman, Shea-Porter, 
Lowenthal, and Garcia.
    The Chairman. The Committee will come to order, and the 
Chair announces the presence of a quorum, which, under our 
rules, is two Members, and we have exceeded that by two-and-a-
half times, so I am very pleased with that.
    The Committee on Natural Resources is meeting today to hear 
testimony on an oversight hearing on ``Defining Species 
Conservation Success: Tribal, State, and Local Stewardship vs. 
Federal Courtroom Battles and Sue-and-Settle Practices.''
    Under Committee Rule 4(f), opening statements are limited 
to the Chairman and Ranking Member. However, I ask unanimous 
consent that if any Member wants to submit a statement for the 
record, that they submit that by the close of the day.
    [No response.]
    The Chairman. And without objection, so ordered.
    I will now recognize myself for 5 minutes for my opening 
statement.

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

    The Chairman. Today the Committee continues its important 
oversight of the Endangered Species Act, or ESA, a law that has 
not been reauthorized for 25 years. The intent of today's 
hearing is to highlight specific examples of how species 
benefit from the work of State, local, and tribal entities, 
often in spite of, rather than because of, the ESA listings or 
habitat designations.
    During the last Congress, this Committee held several 
hearings that demonstrate how the ESA has been used as a tool 
for litigation, and how skillful lawyers are benefiting much 
more than species. Ironically, the same litigious groups that 
routinely criticize the Federal Government's failure to meet 
ESA listing or critical habitat deadlines are the same groups 
that are quick to claim that the status quo ESA successful 
protects species by keeping the vast majority, which, by the 
way, is over 98 percent, from ever getting off the list.
    Closed-door settlements between the Interior Department and 
these litigious groups has set specific court-approved 
deadlines to force hundreds of species listings and habitat 
designations over the next few years. These settlement 
deadlines, and agencies' reactions to the threats of 
litigation, are dominating Federal agencies' use of resources 
and how they prioritize endangered species activities, often to 
the detriment of species.
    The map that is listed up there shows how the Interior 
settlements with the Center for Biological Diversity and the 
WildEarth Guardians impact nearly every State in the Union. 
That is the number of listings in the settlement. While Section 
A of ESA requires the Interior Department to cooperate with 
States and I quote ``to the maximum extent practical,'' 
including consultation before major ESA Federal actions 
affecting land or water within the States' borders, Interior 
settlements were negotiated and signed without State and local 
input, and with little regard for ongoing conservation efforts.
    Fortunately, State, local, and tribal governments, and many 
private land owners not only care about species conservation, 
but they are doing it now, and in a manner that responsibly 
respects local economic activities, private property, and other 
uses. This is occurring despite the ever-growing litigation 
industry involving Federal implementation of ESA.
    In the Pacific Northwest, where I am from, hatchery 
programs run by the Columbia River Tribes have resulted in 
several notable successes, yielding record runs of ESA-listed 
salmon in several areas not seen in decades, and developing 
science that demonstrates well-run hatcheries can move salmon 
to a goal of delisting. Some Federal bureaucrats and litigious 
groups, however, have sought to block use of hatcheries, 
despite clear support for their use under ESA.
    Two other prominent species issues featured today, the 
Lesser Prairie Chicken, affecting largely private property in 
portions of 5 States, and the Greater Sage Grouse, affecting 
important energy and grazing areas in part of 13 Western 
States, have become urgent issues now. But it is not because 
they face imminent extinction. Rather, the settlements now set 
deadlines that require the Interior Department to determine 
whether or not to list both candidate bird species soon.
    In both cases, State and local governments oppose a Federal 
listing. And yet, have taken comprehensive and proactive steps 
to develop data to prioritize species management, and plans to 
manage them at the State and local level, while at the same 
time protecting their local economies.
    So, I look forward to hearing more from our witnesses today 
about how successfully managing species is possible without 
Federal ESA listings, and that delisting is and should be a 
definition of success for ESA.
    In my view, successful State, local, and tribal species 
conservation efforts need to be encouraged, not threatened by 
lawsuits. Allowing the fate of species to be increasingly 
decided by Federal bureaucrats, lawyers, or Federal judges is 
not working, and it undercuts the true purpose, in my view, of 
the ESA.
    [The prepared statement of Mr. Hastings follows:]

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

    Today the Committee continues its important oversight of the 
Endangered Species Act (ESA), a law that has not been reauthorized by 
Congress for 25 years. The intent of today's hearing is to highlight 
specific examples of how species benefit from the work of state, local 
and tribal entities, often in spite of--rather than because of--
Endangered Species Act listings or habitat designations.
    During the last Congress, this Committee held several hearings that 
demonstrated how the ESA has been used as a tool for litigation and how 
skillful lawyers are benefitting much more than species. Ironically, 
the same litigious groups that routinely criticize the federal 
government's failure to meet ESA listing or critical habitat deadlines 
are the same groups that are quick to claim that the status quo ESA 
successfully protects species by keeping the vast majority (over 98 
percent) from ever getting off the list.
    Closed-door settlements between the Interior Department and these 
litigious groups have set specific, court-approved deadlines to force 
hundreds of species listings and habitat designations over the next few 
years. These settlement deadlines, and agencies' reactions to the 
threats of litigation, are dominating federal agencies' use of 
resources and how they prioritize endangered species activities, often 
to the detriment of species.
    This map over here shows how the Interior settlements with CBD and 
WEG impact nearly every state in the union.
    While Section 6(a) of the ESA requires the Interior Department to 
cooperate with States ``to the maximum extent practicable,'' including 
consultation before major ESA federal actions affecting land or water 
within states' borders, Interior's settlements were negotiated and 
signed without state or local input, and with little regard for ongoing 
their conservation efforts.
    Fortunately, state, local, and tribal governments, and many private 
landowners not only care about species conservation, they're doing it 
now, and in a manner that responsibly respects local economic 
activities, private property, and other uses. This is occurring despite 
the ever-growing litigation industry involving federal implementation 
of the Endangered Species Act.
    In the Pacific Northwest, hatchery programs run by Columbia River 
tribes have resulted in several notable successes--yielding record runs 
of ESA listed salmon in several areas not seen in decades, and 
developing science that demonstrates well-run hatcheries can move 
salmon toward a goal of de-listing them. Some federal bureaucrats and 
litigious groups, however, have sought to block use of hatcheries, 
despite clear support for their use under ESA.
    Two other prominent species issues featured today--the Lesser 
Prairie Chicken, affecting largely private property on portions of five 
states, and the Greater Sage Grouse, affecting important energy and 
grazing areas in parts of thirteen western states--have become urgent 
issues now, not because they face imminent extinction.
    Rather, the settlements set deadlines that require the Interior 
Department to determine whether or not to list both ``candidate'' bird 
species soon. In both cases, states and local governments oppose a 
federal listing, yet have taken comprehensive and proactive steps to 
develop data to prioritize species management and plans to manage them 
at the state and local level while protecting their economies.
    I look forward to hearing more from our witnesses today about how 
successfully managing species is possible without federal ESA listings, 
and that de-listing is and should be the definition of ``success'' for 
ESA.
    In my view, successful state, local and tribal species conservation 
efforts need to be encouraged, not threatened by lawsuits. Allowing the 
fate of species to be increasingly decided by federal bureaucrats, 
lawyers or federal judges is not working and undercuts the true purpose 
of ESA.
                                 ______
                                 
    The Chairman. With that, I will yield back my time, and 
recognize the gentlelady from Guam.

  STATEMENT OF THE HON. MADELEINE Z. BORDALLO, A DELEGATE IN 
              CONGRESS FROM THE TERRITORY OF GUAM

    Ms. Bordallo. Thank you, Mr. Chairman. Last June this 
Committee held an oversight hearing on the Endangered Species 
Act entitled, ``Taxpayer-Funded Litigation: Benefitting Lawyers 
and Harming Species, Jobs, and Schools.'' A year later, the 
name has changed. But, unfortunately, the song remains the 
same. The Majority is trotting out the same tired arguments and 
roundly debunked myths questioning the legitimacy and the 
effectiveness of the law.
    The Endangered Species Act is one of the most important, 
popular, and effective conservation laws, not just in the 
history of the United States, but in the history of the world. 
Since it became law in 1973, U.S. GDP has increased nearly 
threefold, and per capita income has increased by half. 
Clearly, this law has not brought about the economic disaster 
that its detractors like to claim.
    The ESA's near-perfect record of achieving species survival 
and its numerous species recovery successes, like the bald 
eagle, American alligator, and the gray whale, even in the face 
of continued population growth, land conversion, and pressure 
on ocean and coastal resources, show that the law has been a 
true success.
    The success of the Endangered Species Act comes from the 
cooperation of the Federal Government with the State and local 
governments, along with businesses and private land owners, the 
Fish and Wildlife Service, and the National Oceanic and 
Atmospheric Administration are working diligently with the 
States, localities, land owners, and other Federal agencies to 
find cooperative solutions to protecting and recovering 
threatened and endangered species, and prevent others from 
becoming imperiled.
    The fact that neither of the agencies tasked with 
implementing the ESA were invited to appear at the June 2012 
hearing or in today's rerun reflects the continuation of a 
troubling Republican strategy of fear-mongering, rather than a 
fair oversight effort. Republicans on this Committee know that 
Americans value biodiversity, conservation, and want economic 
development to be compatible with ecosystem health. They know 
that the ESA contains significant flexibility to allow projects 
to proceed after taking into account the national interest in 
the preservation of species and their habitats. And they know 
that the ESA has prevented the extinctions of 99 percent of 
species that have received protection under the law.
    Rather than admit this, the Majority is pursuing a radical 
agenda by casting doubt on a perfectly open and legitimate 
public participation process, ignoring the fact that citizen 
suits are brought on behalf of thousands of individual members 
of the plaintiff groups, and pointing to slow recovery rates as 
proof of failure, without providing the context of 
fundamentally altered and fragmented landscapes, insufficient 
conservation budgets, and global climate change.
    Moreover, the Majority ignores that Congress, under a 
Democratic and Republican leadership, have given agencies 
flexibility to avoid costly litigation. Case in point, we have 
empowered the Department of Defense to comply with ESA's 
requirements and avoid litigation by entering into partnerships 
with private land owners.
    It would behoove us to look at this matter in a more 
constructive manner, rather than a visceral hate of a 
successful law.
    Maybe most troubling is the fiction the Majority and its 
allies are trying to create around the use of so-called sue-
and-settle tactics under the ESA. It is said that imitation is 
the sincerest form of flattery. Now we have the Chamber of 
Commerce and the Republicans accusing the Obama Administration 
of making an end run around the regulatory process, just as 
environmental groups and Democrats accused the Bush 
Administration.
    I think we can reach bipartisan agreement that sue-and-
settle is a catchy phrase. However, the fact that the Majority 
is using it as an excuse to shut down the right of people to 
protect the actions of their government is inappropriate, and 
runs counter to its own Tea Party principles. It also does 
nothing to promote species recovery, a goal to which 
Republicans are willing to spend time talking about, but are 
not willing to spend funds to actually achieve.
    I thank you, and I look forward to hearing from our 
witnesses.
    [The prepared statement of Ms. Bordallo follows:]

           Statement of The Honorable Madeleine Z. Bordallo, 
           a Delegate in Congress from the Territory of Guam

    Last June this Committee held an oversight hearing on the 
Endangered Species Act entitled: ``Taxpayer-Funded Litigation: 
Benefitting Lawyers and Harming Species, Jobs and Schools.'' A year 
later the name has changed, but unfortunately the song remains the 
same. The Majority is trotting out the same tired arguments and roundly 
debunked myths questioning the legitimacy and effectiveness of the law.
    The Endangered Species Act is one of the most important, popular, 
and effective conservation laws not just in the history of the United 
States, but in the history of the world. Since it became law in 1973, 
U.S. G-D-P has increased nearly threefold, and per capita income has 
increased by half. Clearly this law has not brought about the economic 
disaster that its detractors like to claim. The E-S-A's near perfect 
record of achieving species survival, and its numerous species recovery 
successes like the bald eagle, American alligator, and gray whale--even 
in the face of continued population growth, land conversion, and 
pressure on ocean and coastal resources--show that the law has been a 
true success.
    The success of the Endangered Species Act comes from the 
cooperation of the federal government with state and local governments 
along with businesses and private landowners. The Fish and Wildlife 
Service and the National Oceanic and Atmospheric Administration are 
working diligently with states, localities, landowners, and other 
federal agencies to find cooperative solutions to protecting and 
recovering threatened and endangered species, and prevent others from 
becoming imperiled. The fact that neither of the agencies tasked with 
implementing the E-S-A were invited to appear at the June 2012 hearing 
or in today's rerun reflects the continuation of a troubling Republican 
strategy of fear mongering rather than a fair oversight effort.
    Republicans on this Committee know that Americans value 
biodiversity conservation and want economic development to be 
compatible with ecosystem health. They know that the E-S-A contains 
significant flexibility to allow projects to proceed after taking into 
account the national interest in the preservation of species and their 
habitats. And they know that the E-S-A has prevented the extinction of 
99 percent of species that have received protection under the law.
    Rather than admit this, the Majority is pursuing a radical agenda 
by casting doubt on a perfectly open and legitimate public 
participation process; ignoring the fact that citizen suits are brought 
on behalf of thousands of individual members of the plaintiff groups; 
and pointing to slow recovery rates as proof of failure without 
providing the context of fundamentally altered and fragmented 
landscapes, insufficient conservation budgets, and global climate 
change.
    Moreover, the Majority ignores that Congress, under Democratic and 
Republican leadership, have given agencies flexibility to avoid costly 
litigation. Case in point, we have empowered the Department of Defense 
to comply with E-S-A's requirements and avoid litigation by entering in 
partnerships with private landowners. It would behoove us to look at 
this matter in a more constructive manner rather than a visceral hate 
of a successful law.
    Maybe most troubling is the fiction the Majority and its allies are 
trying to create around the use of so-called ``sue-and-settle'' tactics 
under the E-S-A. It is said that imitation is the sincerest form of 
flattery. Now we have the Chamber of Commerce and Republicans accusing 
the Obama administration of making an end run around the regulatory 
process, just as environmental groups and Democrats accused the Bush 
administration. I think we can reach bipartisan agreement that ``sue-
and-settle'' is a catchy phrase. However, the fact that the Majority is 
using it as an excuse to shut down the right of people to protest the 
actions of their government is inappropriate, and runs counter to its 
own Tea Party principles. It also does nothing to promote species 
recovery, a goal to which Republicans are willing to spend time talking 
about but are not willing to spend funds to actually achieve.
    Thank you and I look forward to hearing from our witnesses.
                                 ______
                                 
    The Chairman. I thank the gentlelady for her opening 
statement, and I want to welcome the panel here. And for the 
purpose of introduction, I will yield to the gentleman from 
Oklahoma to introduce the first witness. Mr. Mullin?
    Mr. Mullin. Thank you, Mr. Chairman. It is my pleasure to 
introduce a fellow Oklahoman to this Committee. I would like to 
introduce Mr. Tyler Powell, a native of Guthrie, Oklahoma, who 
currently serves our State as the Deputy Secretary of 
Environment at the Office of Secretary of Environment. In the 
role of his services as the Secretary of Environment's chief 
policy advisor--and he works to coordinate the State's 
environmental cabinet agencies, including the Oklahoma Water 
Resource Board, the Oklahoma Department of Wildlife 
Conservation, and the Oklahoma Department of Environment 
Quality.
    Tyler is a graduate of Oklahoma State University and prior 
to joining the Secretary of Environment's office, he served as 
a field representative for one of our own colleagues, 
Congressman Tom Cole. And I would encourage my colleagues not 
to underestimate this young man. He is extremely knowledgeable 
in what he does. I have a tremendous amount of respect for his 
knowledge. I have sat down and had extensive conversations with 
him, and I tell you he is quite an impressive man.
    So, Mr. Tyler Powell, I welcome you to this Committee, and 
thank you for making this long trip from God's country.
    The Chairman. I thank the gentleman for his introduction.
    We also have Ms. Kathryn Brigham, who is the Chairwoman of 
the Columbia River Intertribal Fish Commission out of Portland, 
Oregon; Mr. Reed Noss, Professor of the Biology at the 
University of Central Florida, out of Orlando, Florida; Mr. 
Patrick Parenteau, Professor at Vermont Law School in South 
Royalton, Vermont.
    And I will yield to the gentlelady from Wyoming to make the 
introduction of the next witness. The gentlelady is recognized 
for the purpose of introduction.
    Mrs. Lummis. Thank you, Mr. Chairman. Well, it is my 
pleasure to introduce Steve Ferrell to the Committee today. He 
is a long-time public servant in the West, running several 
State-managed State wildlife agencies. He spent 30 years with 
the Arizona Game and Fish before finally seeing the error of 
his ways and coming to Wyoming. From 2008 to 2011 Steve Ferrell 
served as Director of the Wyoming Game and Fish Department, 
where he addressed issues such as wolves, grizzly bears, sage 
grouse conservation, wildlife diseases, and invasive species. 
Steve now serves Wyoming's Governor, Matt Mead, as a lead 
policy advisor on wildlife and endangered species.
    I should note that Steve's son is a combat veteran who is 
still deployed as a civilian in Afghanistan today.
    Steve, thank you so much for being here. Thanks for your 
long service. Thanks for your son's service, your entire 
family's sacrifices to our country. I look forward to your 
testimony today.
    Mr. Chairman, I yield back.
    The Chairman. I thank the gentlelady. And our last witness 
is Mr. Tom Jankovsky--I hope I said that correctly--who is the 
Commissioner of Garfield County in Colorado. I think that is in 
Mr. Tipton's district, if I am not mistaken.
    Well, I want to welcome all of you here. Let me kind of 
give you the ground rules. All of you are asked to submit a 
prepared statement for the record, and that will appear in the 
record. For your oral remarks, though, if you could confine 
that to 5 minutes, we would very much appreciate it, because we 
obviously have Members that want to ask questions in the 
follow-up. And the way that works, you have the light in front 
of you. When the green light is on, it means you are doing 
very, very well. When the yellow light comes on, it means there 
is 1 minute left. And then, when the red light comes on--well, 
we just won't go there, OK?
    [Laughter.]
    The Chairman. But if you could wrap up your remarks in that 
timeframe, and that way we can get through it. Keep in mind 
your full statement will be part of the record.
    So, Mr. Powell, we will start with you, and you are 
recognized for 5 minutes.

  STATEMENT OF TYLER POWELL, DEPUTY SECRETARY OF ENVIRONMENT, 
           STATE OF OKLAHOMA, OKLAHOMA CITY, OKLAHOMA

    Mr. Powell. Good morning, Mr. Chairman, members of the 
Committee. My name is Tyler Powell, and I serve as Oklahoma's 
Deputy Secretary of Environment. I want to thank you for the 
invitation to testify on the success of State stewardship of 
species, and our efforts in working to conserve the Lesser 
Prairie Chicken.
    Currently, Oklahoma has 32 species subject to an endangered 
species listing determination by the U.S. Fish and Wildlife 
Service as part of a multi-district litigation settlement that 
was entered into. Of specific interest for Oklahoma was the 
Lesser Prairie Chicken, a grouse found across the Southern 
Great Plains, with a current range that includes parts of 
Colorado, Kansas, New Mexico, Texas, as well as a 12-county 
area in Western Oklahoma. The settlement the Service entered 
into requires that they make a listing determination on the 
Lesser Prairie Chicken by December 30, 2012. This deadline was 
extended as a result of an action the Service undertook. And on 
November 30, 2012, the Service announced a proposed threatened 
listing.
    While we realize that this is a positive sign and can 
possibly avoid some of the most burdensome regulations, if they 
had chosen an endangered listing, it is still not an ideal 
outcome. The State of Oklahoma has been working to conserve the 
Lesser Prairie Chicken since a petition to add the species to 
the Endangered Species list was submitted in 1995. Our 
Department of Wildlife Conservation has now spent over $26 
million on habitat conservation, research, land acquisition, 
and development of habitat conservation plans. This amount does 
not include the work that has been undertaken by private land 
owners, energy, and transmission companies.
    We also believe that State management of this species, by 
working directly with stakeholders to allow for responsible 
conservation is in the best interest of the Lesser Prairie 
Chicken. Beginning in 2011, Governor Fallin and our State 
legislature asked our office to work with any and all 
stakeholders to develop a plan to ensure appropriate management 
of the Lesser Prairie Chicken, and preclude the need for a 
listing in Federal protection.
    We took a philosophy that the plan should be facilitated by 
the State, but developed in a cooperative fashion with private 
land owners, and a coalition of our State's agriculture, oil 
and gas, transmission, wind energy, and transportation 
industries, who all have a stake in the potential listing of 
this bird, with a common goal of developing a plan that can 
serve the species and allows for responsible land use and 
development.
    After over a year of work, the Oklahoma Lesser Prairie 
Chicken Conservation Plan was released last October. Before the 
ink was dry, we began an unprecedented aerial survey and 
additional research on the ground, as required by the plan. The 
other four States with Lesser Prairie Chickens began to take 
notice of what Oklahoma was undertaking. Working through a 
group of wildlife biologists employed by the five State 
wildlife agencies, also known as the Lesser Prairie Chicken 
Interstate Working Group, the Western Governors' Association, 
and the Western Association of Fish and Wildlife Agencies, the 
State wildlife directors of Colorado, Kansas, New Mexico, 
Texas, and Oklahoma are currently working with industry, 
Federal agencies, and other stakeholders to take the Oklahoma 
conservation framework to a range-wide plan.
    Our goal with a range-wide plan is to convince the Service 
that the five States have management of the species under 
control, and that Federal protection is not warranted. This 
plan includes prioritization of habitat conservation, a metric 
system that can be used to assess conservation practices, and 
to provide for a voluntary mitigation framework for development 
of otherwise impacted areas.
    This plan allows for responsible industry development, and 
allows for our State's two leading industries of agriculture 
and energy to continue in a way that minimizes the impacts to 
the Lesser Prairie Chicken. We feel that this effort can have a 
greater outcome than any possible outcome provided through the 
Endangered Species Act, due to the unique role that the five 
States provide.
    While the range-wide plan is still under development, the 
Service began to take notice of our efforts. The five States 
submitted a draft plan to the Service on April 1st. On May 6th, 
the Service announced that they would reopen the comment period 
for the proposed listing, and begin to take comments on the 
range-wide plan, while also taking comments on a draft 4(d) 
rule. While we see this as a positive sign, we have great 
concerns with the Service putting forward a 4(d) rule.
    While it is helpful to what see the possible threatened 
listing would look like, and that it would allow any practices 
under the range-wide plan to continue, it seems premature and 
assumes that the Service may have already made up their final 
listing determination. A 6-month extension for scientific 
disagreement with statements in the Service's proposed listing 
is needed to address issues within the listing documents, as 
well as to allow research underway to be used in a final 
listing decision.
    My boss, Secretary Gary Sherrer, made this request to 
Director Dan Ashe that has neither been acted upon or denied. 
As it stands today, the U.S.--or the Endangered Species Act 
does not adequately assess the work that States are providing, 
and provides little or no role for the States after a listing 
of the species. State wildlife agencies have built a trust with 
land owners and stakeholders that continue to benefit the 
Lesser Prairie Chicken and other species. We believe that this 
trust is lost when the Service takes over all management of a 
species under the ESA.
    As seen in other areas, States are best equipped to manage 
resources within their boundaries, and the Lesser Prairie 
Chicken is no different. Our goal is to have Oklahoma's work on 
the Lesser Prairie Chicken be an example of how species of 
greatest conservation need should be managed.
    Thank you for the opportunity to be before you today, Mr. 
Chairman and members of the Committee. I look forward to taking 
any questions.
    [The prepared statement of Mr. Powell follows:]

      Statement of Tyler Powell, Deputy Secretary of Environment, 
       Office of the Secretary of Environment, State of Oklahoma

    Good morning, Mr. Chairman, Members of the Committee. My name is 
Tyler Powell and I serve as the Deputy Secretary of Environment for the 
Oklahoma Secretary of Environment's office. I want to thank you for the 
invitation and opportunity to testify on successes of state stewardship 
of species and our efforts in working to conserve the Lesser Prairie 
Chicken.
    The Office of the Secretary of Environment serves at the pleasure 
of Governor Mary Fallin and advises her on environment and natural 
resource issues (Okla. Stat. tit. 27A, Sec. 1-2-101). We are also 
responsible for coordination of the state's environmental agencies, 
including the Oklahoma Department of Wildlife Conservation. As the date 
for publication of a final listing determination for the Lesser Prairie 
Chicken draws nearer, we feel compelled to highlight the successes of 
state stewardship of Candidate species and the continuing efforts of 
the states, working both individually and collectively, to conserve the 
Lesser Prairie Chicken, which are increasingly important, and must be 
given appropriate consideration in the final listing determination.
    Currently, Oklahoma has thirty-two petitioned species and an 
additional five candidate species, three of which have had proposed 
listing rules published (for a full list see Appendix A), which are 
subject to an endangered species listing determination by the U.S. Fish 
and Wildlife Service (Service) as part of a multidistrict litigation 
settlement that was entered into in 2011 (U.S. Fish and Wildlife 
Service Multi-Year ESA Listing Work Plan). A species of particular 
interest for Oklahoma is the Lesser Prairie Chicken, an endemic grouse 
found across the southern Great Plains, with a current range that 
includes parts of Colorado, Kansas, New Mexico and Texas, as well as a 
twelve county area in western Oklahoma.
    The settlement the Service entered into required that they publish 
a proposed listing rule for the Lesser Prairie Chicken by September 30, 
2012. This deadline was extended as a result of an action undertaken by 
the Service, and on November 30, 2012 the Service announced a proposed 
threatened listing (Endangered and Threatened Wildlife and Plants; 
Listing the Lesser Prairie Chicken as a Threatened Species, 77 Fed. 
Reg. 738282, 73888 (Dec. 11, 2012)). While we realize this is a 
positive sign and could possibly avoid some of the most burdensome 
regulations if they had chosen an endangered listing, it is still not 
an ideal outcome.
    The State of Oklahoma has been working to conserve the Lesser 
Prairie Chicken since a petition to add the species to the Endangered 
Species List was submitted in 1995. Our Department of Wildlife 
Conservation has now spent over $26 million on habitat conservation, 
research, land acquisition and development of habitat management plans. 
This amount spent does not include the work that has been undertaken by 
private landowners, energy and transmission companies. We also believe 
that state management of this species, working directly with 
stakeholders to allow for responsible land use and development and 
conservation, is in the best interest of the Lesser Prairie Chicken.
    The Oklahoma Department of Wildlife Conservation (ODWC) has 
recently purchased over 17,660 acres for Lesser Prairie Chicken habitat 
improvement and protection, and entered into a long-term lease 
agreement with the Oklahoma Commissioners of the Land Office to protect 
another 3,270 acres of Lesser Prairie Chicken habitat adjacent to 
Oklahoma's Beaver River Wildlife Management Area. In addition, ODWC has 
entered into management agreements with private landowners to enhance 
and protect an additional 28,000+ acres of Lesser Prairie Chicken 
habitat on private land in Oklahoma.
    Beginning in 2011, Governor Fallin and the state legislature asked 
our office to work with any and all stakeholders to develop a plan to 
ensure appropriate management of Lesser Prairie Chickens and thus 
preclude the need for a listing. We took a philosophy that a plan 
should be facilitated by the state, but developed in a cooperative 
fashion with private landowners and a coalition of our state's 
agriculture, oil and gas, transmission, wind energy, and transportation 
industries who all have a stake in a potential listing of the bird, 
with a common goal of developing a plan that conserves the species and 
allows for responsible land use and development. After over a year of 
work, the Oklahoma Lesser Prairie Chicken Conservation Plan (OLEPCCP) 
was released on October 23, 2012 (Available at http://
www.wildlifedepartment.com/wildlifemgmt/lepc/cons_plan.htm). Before the 
ink was dry, we began to implement this plan with an unprecedented 
aerial survey and additional research and management on the ground. The 
first year of aerial surveys were hampered by poor weather and logistic 
difficulty, but we were able to survey areas that had never been 
surveyed before, and documented previously unknown Lesser Prairie 
Chicken leks. Additional Lesser Prairie Chicken research was contracted 
with researchers from both Oklahoma State University (ODWC Research 
Project LPC-OSU-12, Impacts of Fragmentation and Heterogeneity, 
Resource Selection, Survival and Recruitment of LEPC in Oklahoma) and 
the University of Oklahoma (ODCW Research Project LPC_OU-12, Population 
Ecology and Conservation of the Lesser Prairie Chicken and Its 
Ecosystem). We also identified 15 Core Areas (For a full list see 
Appendix B) for implementing substantial conservation efforts for the 
Lesser Prairie Chicken with a goal, towards which we are currently 
working, of each at least 70% of each Core Area consisting of high 
quality Lesser Prairie Chicken habitat.
    The ODWC, in meeting another objective of the OLEPCCP, developed an 
approved Candidate Conservation Agreement with Assurances (CCAA) for 
Lesser Prairie Chickens on Agricultural Lands in Oklahoma (up to 
200,000 acres) (Final Candidate Conservation Agreement With Assurances, 
Final Environmental Assessment, and Finding of No Significant Impact; 
Lesser Prairie Chicken, Oklahoma, 78 Fed. Reg. 14111, 14114 (March 4, 
2013)). We immediately began preparing Lesser Prairie Chicken Wildlife 
Habitat Management Plans (WHMP) and issuing Certificates of Inclusion 
to interested landowners. Landowners who have an approved WHMP are 
provided assurance, that, as long as they continue to implement the 
management practices prescribed in their WHMP, they will face no 
additional regulatory action or requirements and are also provided 
incidental take coverage if the Lesser Prairie Chicken becomes listed. 
To date, we have received applications from over forty landowners 
representing nearly 170,000 acres. We have also asked the Service for 
an additional 200,000 acres to be allowed in the enrollment, which 
would bring the total acreage eligible for CCAA in Oklahoma to 400,000 
acres.
    The other four states within the Lesser Prairie Chicken's range 
began to take notice of what Oklahoma was undertaking. Working as a 
group, wildlife biologists employed by the five state wildlife agencies 
(Lesser Prairie Chicken Interstate Working Group), the Western 
Governor's Association, and the Western Association of Fish and 
Wildlife Agencies, the state wildlife agency directors from Colorado, 
Kansas, New Mexico, Texas and Oklahoma are currently working with 
industry, federal agencies, and other stakeholders to take the Oklahoma 
framework to a range wide plan. Our goal for the range-wide plan is to 
convince the Service that the five states have management of the 
species under control and that federal protection is not warranted. 
This plan includes prioritization of habitat conservation, a metrics 
system that can be used to assess conservation practices and to provide 
a voluntary mitigation framework for developed or otherwise impacted 
areas. The plan allows for responsible industry development and allows 
for our state's two biggest industries of agriculture and energy to 
continue, in a way that minimizes impacts to the Lesser Prairie 
Chicken. We feel that this effort can affect a greater and much more 
positive outcome than any possible outcome provided through the 
Endangered Species Act due to the unique role that the five states 
play, and the Lesser Prairie Chicken management knowledge and 
experience that they bring to the table.
    While this range wide plan is still under development, the Service 
has taken notice of the effort. The five states submitted the draft 
plan to the Service on April 1st. On May 6th the Service announced that 
they would reopen the comment period for the proposed listing rule and 
began taking comments on the five state plan, while also taking 
comments on a draft 4(d) rule (Endangered and Threatened Wildlife and 
Plants; Listing the Lesser Prairie-Chicken as a Threatened Species With 
a Special Rule, 78 Fed. Reg. 26302, 26308 (May 6, 2013). While we see 
this as a positive sign, we have concerns with the Service putting 
forward a 4(d) rule. While it is helpful to see what a possible 
threatened listing would look like and that a listing appears to allow 
any practices delineated under the range wide plan to continue, it 
seems premature and assumes the Service may have already made their 
decision on a final listing rule. A six-month extension for scientific 
disagreement with statements made in the Service's proposed listing 
rule is needed to address issues within the listing document as well as 
to allow research currently underway to be used in a final listing 
determination. Oklahoma Secretary of Environment, Gary Sherrer, made 
this request on December 17, 2012 (Regulations.gov Document ID: FWS-R2-
ES-2012-0071). This request to Director Dan Ashe of the US Fish and 
Wildlife Service has still not been accepted or denied.
    As it stands today the Endangered Species Act does not adequately 
assess the work that states are undertaking and provides little or no 
role for the states after listing of a species. State wildlife agencies 
have built trust with landowners and a stakeholder that continues to 
benefit the Lesser Prairie Chicken and other species. We believe, and 
have seen in past listings, that this trust is lost when the Service 
takes over all management of a species. As also seen in other areas, 
states are best equipped to manage resources within their boundaries. 
Our goal remains to have Oklahoma's work on the Lesser Prairie Chicken 
be an example of how species of greatest conservation need should be 
managed.
    Thank you for the opportunity to be before you today, Mr. Chairman 
and Members of the Committee. I look forward to answering any questions 
you may have.



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




    The Chairman. Thank you very much, Mr. Powell, for your 
testimony.
    And now I am pleased to welcome Chairwoman Brigham, who is 
the Chairwoman of the Columbia River Intertribal Fish 
Commission. And, Ms. Brigham, you are recognized for 5 minutes.

STATEMENT OF THE HON. N. KATHRYN BRIGHAM, CHAIRWOMAN, COLUMBIA 
      RIVER INTER-TRIBAL FISH COMMISSION, PORTLAND, OREGON

    Ms. Brigham. Good morning, Chairman Hastings and Committee 
members. I am a member of the Confederated Tribes of the 
Umatilla Indian Reservation, Board of Trustees Secretary, and 
the Chair of the Columbia River Intertribal Fish Commission. It 
is my pleasure to address you this morning and share the 
Yakama, Nez Perce, Umatilla tribal fishery program successes 
where we have succeeded in rebuilding salmon stock that have 
been depleted or gone extinct in the Columbia River. And I will 
identify some institutional barriers to our success, and make 
recommendations on how they may be overcome.
    As a tribal leader, I have been involved in salmon 
management since 1976, CRITFC commissioner and a U.S. tribal 
representative to the Pacific Salmon Commission. CRITFC and our 
member Tribes have conducted a comprehensive treaty rights 
implementation program intended to maintain compliance with 
court orders, regional intergovernmental agreements and 
international salmon treaties. We are leaders in fisheries 
management and working in collaboration with 5 States, 11 
Federal agencies, and private entities.
    To achieve our goal, we emphasize the highest level of 
scientific rigor and cost-effective management strategies. 
While many of the Pacific Coast salmon stocks remain in 
distress, our Tribes are building Columbia Basin success, acre 
by acre, tributary by tributary, and stock by stock. I would 
like to briefly highlight just a few of these successes, two 
reintroduction programs.
    The first is the Mid-Columbia Coho. Yakama designed an 
innovative supplementation approach when, within a few years of 
inception, returns were sufficient to transition to solely in-
basin brood stock with recent adult returns as high as 32,000.
    The second is the Umatilla spring chinook reintroduction 
program in the Walla Walla River. This demonstrating how, when 
given an opportunity, adult fish will return, spawn, and rear 
in available habitat.
    The supplementation program, the Snake River chinook 
restoration is perhaps our most significant achievement, and we 
have a graph up there that shows that in 1995 the Nez Perce 
began a supplementation program. And then in 1998 things were 
returning. It also shows how hatcheries and wild fish are 
rebuilding in the Snake River Basin. It is a forum for both 
wild and natural hatcheries.
    I also have a bunch of success stories with details on this 
that I would like to enter for the record, and let you know 
that our Tribes are the forefront of research and innovation on 
hatchery supplementation in a region that is led to believe 
that wild fish are good and hatchery fish are bad. We are 
proving that is not the case. The data result shows that 
hatcheries can assist in rebuilding naturally spawning 
populations. So does new peer-reviewed science. The Nez Perce 
Tribe's Johnson Creek Artificial Production Enhancement 
Project, a 13-year study, used DNA from returning adults to 
track parents and offspring to determine how successful 
hatchery fish are mating in the wild when compared to wild 
fish. This shows that hatcheries can be used to rebuild 
naturally spawning fish.
    I would like to request that this report be entered into 
the record for one reason, mainly, and that is that this is on 
the record, and it is not varied. We have very high concerns 
that this report is going to be ignored.
    The Chairman. Without objection, that will be part of the 
record.
    [Note: The report submitted for the record has been 
retained in the Committee's official files and can be found at: 
http://naturalresources.house.gov/uploadedfiles/johnson
creek_brigham.pdf:]
    Ms. Brigham. Thank you. I would like to identify a few 
barriers in recovery restorations and recommendations for the 
12 ESA Columbia River stocks.
    In 2005 NOAA clarified their policy that allows production 
under the Endangered Species Act. Due to anti-hatchery 
philosophies by some NOAA staff, NOAA fisheries are under-
utilizing the hatchery tool. The result is a 100-year work 
backlog and recovery timeframes. These timeframes are 
unacceptable, socially and biologically.
    We would like to create incentives for the Federal 
Government. We would like to have the gridlock goal and 
timeframe created. We would like cross-budgeting established. 
We would like to eliminate--oh, the other one is mass 
marketing. This is a 30-year record of expensive, failed 
practice without any conservation benefits. We would like to 
eliminate that and use this funding for restoration and allow 
co-managers to manage this on a case-by-case basis.
    And then, the ESA Migratory Bird Act and Marine Mammal 
Protection Act, they are not compatible with each other. We 
need to figure out how to make that work. Thank you.
    [The prepared statement of Ms. Brigham follows:]

      Statement of The Honorable N. Kathryn Brigham, Chairwoman, 
              Columbia River Inter-Tribal Fish Commission

    Chairman Hastings and members of the Committee, the Columbia River 
Inter-Tribal Fish Commission (CRITFC) is pleased to share our views on 
the Endangered Species Act as it relates to Columbia River salmon. Our 
testimony will highlight: tribal restoration successes; institutional 
barriers to building abundance and; recommendations to overcome these 
barriers.
    CRITFC was founded in 1977 by the four Columbia River treaty 
tribes: Confederated Tribes of the Umatilla Indian Reservation, 
Confederated Tribes of the Warm Springs Reservation of Oregon, 
Confederated Tribes and Bands of the Yakama Nation, and Nez Perce 
Tribe. CRITFC provides coordination and technical assistance to these 
tribes in regional, national and international efforts to protect and 
restore our shared salmon resource and the habitat upon which it 
depends.
    Our collective ancestral homeland covers nearly one-third of the 
entire Columbia River Basin in the United States. In 1855, the United 
States entered into treaties with the four tribes whereupon we ceded 40 
million acres of our homelands to the United States. In return, the 
U.S. pledged to honor our ancestral rights, including the right to 
fish. Unfortunately, a perilous history brought the salmon resource to 
the edge of extinction and now 12 salmon and steelhead populations in 
the Columbia Basin are listed under the Endangered Species Act (ESA).
    Today, the CRITFC tribes are leaders in fisheries restoration and 
management working with state, federal and private entities. CRITFC's 
member tribes are principals in the region's efforts to halt the 
decline of salmonid, lamprey and sturgeon populations and rebuild them 
to levels that support ceremonial, subsistence and commercial harvests. 
To achieve these objectives, the tribes' actions emphasize `gravel-to-
gravel' management including supplementation of natural stocks, healthy 
watersheds and collaborative efforts.
Columbia River Fisheries Management--A New Era of Collaboration
    The Columbia Basin is in the greatest era of collaboration in our 
lifetimes. In 2008 lengthy negotiations involving CRITFC and its member 
tribes resulted in three landmark agreements: 1) the 2008-2017 United 
States v. Oregon Management Plan with federal, tribal and state parties 
that sets forth collaborative fishery arrangements and specific 
artificial production commitments, and which is also an order of the 
federal court for the District of Oregon, and; 2) the Columbia Basin 
Fish Accords with federal action agencies overseeing the federal hydro 
system in the Columbia Basin, and; 3) a new Chinook Chapter of the 
Pacific Salmon Treaty. These agreements establish regional and 
international commitments on harvest and fish production efforts, 
commitments to critical investments in habitat restoration, and 
resolving contentious issues by seeking balance of the many demands 
within the Columbia River basin. Our tribes have committed to 
substantial on-the-ground projects to fulfill these agreements. Tribal 
propagation programs are an important part of these commitments and 
their successes.
Tribal Successes--Stream by Stream, Stock by Stock
    This section highlights just a sampling of the numerous successes 
our tribes have forged in the Columbia Basin. These include success 
through both re-introduction and recovery projects.
Methow and Wenatchee River Coho
    Prior to the 20th century, an estimated 120,000 to 165,000 coho 
returned annually to mid-Columbia tributaries--the Yakima, Wenatchee, 
Entiat, Methow, and Spokane. Impassable dams, overfishing, unscreened 
irrigation diversions, habitat degradation, and hatchery policies all 
contributed to the virtual disappearance of coho in these tributaries.
    Responding to the losses the Yakama Nation began an aggressive 
suite of actions beginning with reintroduction of coho to the Methow 
River in 1997 and the Wenatchee River in 1999. Using the only coho 
stock available, an early-run, lower river coho, the Yakama Nation 
designed an innovative supplementation approach which acclimates 
juvenile fish to spawning areas. Within a few years of inception, 
returns were sufficient to transition to solely in-basin broodstock.
    Since the program's inception, total adult coho returns to the two 
basins have ranged from 1,751 to 30,341 with a 10-year average of 8,576 
fish. Significantly, adult returns in 2009 were at a record high (since 
the mid-1900s) and deemed sufficient to open a limited tribal and non-
tribal fishery in Icicle Creek, a Wenatchee tributary. It was the first 
fishery in over half a century. Another record return--nearly twice 
that of the 2009 record--occurred in 2011.
    Partnerships with Grant County and Chelan Public Utility Districts 
and the Methow Salmon Recovery Foundation have helped make this 
restoration project possible. Sportsfishers, tribal members, and non-
tribal commercial fisheries are now sharing in the benefits.
    Similar coho reintroduction and restoration have occurred in the 
Yakima and Clearwater river basins. Both the Yakama Nation's Yakima 
River Coho Re-Introduction Study and the Nez Perce Tribe's Clearwater 
Coho Restoration Project are successful with results comparable to the 
Wenatchee/Methow program. Despite starting with out-of-basin hatchery 
stock, the Clearwater, Yakima, Wenatchee, and Methow rivers are seeing 
increasing returns of natural origin coho--fish that are adapting to 
their new environment and establishing spawning populations in new 
habitat areas.
Walla Walla River Spring Chinook
    The Walla Walla subbasin is in the SE corner of Washington State 
within the northeast portion of the aboriginal title lands of the 
Confederated Tribes of the Umatilla Indian Reservation. Spring chinook 
were extirpated from the Walla Walla River for more than 80 years.
    The construction of the Nine Mile (Reese) Dam in 1905 preceded the 
disappearance of spring chinook and caused the Walla Walla River to run 
dry each summer for nearly 100 years.
    Then, in 2001, thanks to an agreement among three irrigation 
districts, the Umatilla Tribes, and federal agencies, the Walla Walla 
River started flowing all year long. This agreement supplemented 
earlier tribal, state, and landowner partnerships to improve fish 
passage and habitat. The tribe began its spring chinook reintroduction 
program because the species is critical to the Walla Walla River's 
ecological health consistent with the tribes' River Vision, and spring 
chinook are integral to the tribal cultural, spiritual and economic 
life.
    To initiate the program, the Umatilla Tribes released surplus 
Umatilla and Ringold adult spring chinook into the South Fork of the 
Walla Walla River. Needing additional broodstock, the Umatilla tribe 
was able to acquire an additional 250,000 spring chinook smolts from 
Carson National Fish Hatchery in Carson, Washington and successfully 
reprogrammed these fish for release into the South Fork Walla Walla.
    The Umatilla tribe's spring chinook reintroduction in the Walla 
Walla River is demonstrating how, when given the opportunity, adult 
fish will return, spawn, and rear in available habitat. Since the 
program began, adult spring chinook returns to the upper Walla Walla 
River and Mill Creek have increased from 200 fish in 2004 (the first 
year of returns) to 1,135 in 2009. The tribal goal is 5,500 adults to 
the river mouth. Due to the program's success, the tribe was able to 
open a tribal fishery on the Walla Walla in 2010, the first time in 
nearly a century.
Snake River Fall Chinook
    Snake River fall chinook have been brought back from the brink of 
extinction. Listed as threatened under the Endangered Species Act, the 
estimated return of naturally-spawning Snake River fall chinook 
averaged 328 adults from 1986-1992. In 1994, fewer than 2,000 Snake 
River fall chinook returned to the Columbia River Basin.
    The construction of dams on the Snake River, beginning with Swan 
Falls in 1901 and continuing with the Hells Canyon Dam Complex in the 
1950's and Lower Snake River dams in later years, eliminated or 
severely degraded 530 miles--or 80%--of the historical habitat. The 
most productive of that habitat was upriver from the site of Hells 
Canyon Dam, which has no fish passage. A precipitous decline of Snake 
River fall chinook followed with only 78 wild adults observed at Lower 
Granite Dam in 1990.
    Today the Nez Perce Tribe uses a cutting-edge hatchery program that 
supplements natural chinook populations with hatchery-reared fish of 
the same stock. The details of the Snake River Fall Chinook Program 
were refined through U.S. v. Oregon processes, and since 1995 the 
parties have included commitments for a Snake River Fall Chinook 
supplementation program. The development of numerous rearing and 
acclimation facilities in the Snake River Basin as well as the Nez 
Perce Tribal Hatchery is essential to the implementation of the 
program. The tribes secured the initial funding for the program through 
the U.S. Congress. In 1996, Congress instructed the U.S. Army Corps of 
Engineers to construct acclimation facilities under the Lower Snake 
River Compensation Plan. Today the Nez Perce Tribe operates and 
maintains three acclimation facilities in addition to the Nez Perce 
Tribal Hatchery.
    Together, the Nez Perce facilities release approximately 450,000 
yearling and 2.8 million sub-yearling fall chinook smolts each year 
into the Clearwater and Snake rivers. These releases have dramatically 
increased the number of natural and hatchery origin adult fall chinook 
returning above Lower Granite Dam.
    Total adult fall chinook salmon returns have increased from less 
than 500 adults to Lower Granite Dam annually from 1975-1995 to a 
record count of more than 41,000 in 2010. The natural origin adult 
return in 2012 was just under 13,000 fish, which was a record since the 
construction of Lower Granite Dam in 1975.
Utilizing Salmon Hatcheries for Natural Stock Recovery
    The Columbia River treaty tribes' approach to salmon recovery is to 
put fish back into the rivers and protect the watersheds where fish 
live. We employ supplementation and propagation to improve abundance, 
productivity, distribution and diversity to increase naturally spawning 
populations of salmon using biologically appropriate hatchery fish.
    CRITFC endeavors to secure a unified hatchery strategy among 
tribal, federal and state co-managers. To that end, we seek to design 
hatchery programs using the best available science and supported by 
adequate, efficient budgets.
Best Available Science: Significant New Findings on Supplementation
    Significant new research on hatchery and wild fish interaction, 
conducted by the Columbia River Inter-Tribal Fish Commission, was 
published in the journal Molecular Ecology in October, 2012. The study, 
``Supportive breeding boosts natural population abundance with minimal 
negative impacts on fitness of a wild population of chinook salmon,'' 
found that hatchery-reared salmon that spawned with wild salmon had the 
same reproductive success as salmon left to spawn in the wild, a result 
that refutes earlier perceptions that interbreeding of hatchery-reared 
fish with wild fish will always decrease productivity and fitness of 
the wild populations.
    The study focused on a population of summer chinook whose natal 
stream is located in central Idaho, almost 700 miles upstream of the 
Pacific Ocean and the subject of the Nez Perce Tribe's Johnson Creek 
Artificial Propagation Enhancement Project (JCAPE).
    The Nez Perce Tribe began the JCAPE Project in 1998 after tribal 
biologists observed critically low numbers of returning adult chinook 
to Johnson Creek, a tributary to the South Fork of the Salmon River in 
central Idaho, and upstream of eight large dams. By 1995 the number of 
spawning fish pairs in Johnson Creek had been reduced to five.
    Adult return numbers are now consistently meeting the Johnson Creek 
project's short-term abundance goal of 350 returning adults, with the 
project already returning more than 1,000 summer chinook adults in some 
years. A limited harvest will be allowed when the tribe reaches a goal 
of 6,900 adults returning to Johnson Creek. The long-term ecological 
return or escapement goal is 19,000 summer chinook. The Nez Perce Tribe 
believes that by continuing the careful work of the JCAPE Project these 
goals stand a good chance of being met.
    Supplementation Did Not Reduce Fitness of Wild Fish The Johnson 
Creek research demonstrates two things: first, hatcheries don't 
inherently change salmon genetics. Second, well managed supplementation 
programs can increase population abundance while minimizing the genetic 
impacts to wild fish populations.
    The study used DNA from all returning adults collected over a 13-
year period to track parents and their offspring and to determine how 
successful hatchery fish were at mating in the wild when compared to 
wild fish. The study showed a clear boost to the number of adult salmon 
returning to the population from supplementation: Fish taken into the 
hatchery produced an average of nearly 5 times the number of returning 
adults compared to the fish that were left in the wild to spawn. A key 
finding of the Johnson Creek study was that a hatchery-origin fish 
spawning naturally with a wild fish had the equivalent reproductive 
success as two wild fish, suggesting that chinook salmon reared for a 
single generation in the hatchery did not reduce the fitness of the 
wild fish. Similarly, productivity of two hatchery fish spawning 
naturally was not significantly lower than for two wild fish.
Identifying the Institutional Barriers to Recovery
The Law and Policy provides, but the Regulators do not
    ESA listing of salmon populations in the Columbia River has a 
complex and contentious history. While the Endangered Species Act 
explicitly provides for the use of artificial propagation in the 
conservation of listed species the role of propagation has not evaded 
this tension. Section 2(b) of the ESA (16 U.S.C. 1531(b)) calls for 
recovery of the species in the wild, while section 3(3) explicitly 
authorizes the use of propagation in the conservation of listed 
species. To resolve this legal tension, the National Marine Fisheries 
Service and U.S. Fish and Wildlife Service have adopted formal policies 
regarding controlled propagation following notice and comment 
rulemaking procedures. Joint NMFS-USFWS Policy on the Controlled 
Propagation of Species Listed under the ESA (65 FR 56916, September 20, 
2000); and NMFS Policy on the Consideration of Hatchery-Origin Fish in 
Endangered Species Act Listing Determinations for Pacific Salmon and 
Steelhead (70 FR 123, June 28, 2005). The central tenet of the hatchery 
policy is the conservation of naturally spawning salmon populations and 
the ecosystems upon which they depend, recognizing the contribution 
that properly managed hatchery programs may provide. Hatchery fish will 
be included in assessing an ESU's status in the context of their 
contributions to conserving natural self-sustaining populations.

    Section 4 of the NMFS policy reads as follows:

        Status determinations for Pacific salmon and steelhead ESUs 
        generally consider four key attributes: abundance; 
        productivity; genetic diversity; and spatial distribution. The 
        effects of hatchery fish on the status of an ESU will depend on 
        which of the four key attributes are currently limiting the 
        ESU, and how the hatchery fish within the ESU affect each of 
        the attributes. The presence of hatchery fish within the ESU 
        can positively affect the overall status of the ESU, and 
        thereby affect a listing determination, by contributing to 
        increasing abundance and productivity of the natural 
        populations in the ESU, by improving spatial distribution, by 
        serving as a source population for repopulating unoccupied 
        habitat, and by conserving genetic resources of depressed 
        natural populations in the ESU. Conversely, a hatchery program 
        managed without adequate consideration of its conservation 
        effects can affect a listing determination by reducing adaptive 
        genetic diversity of the ESU, and by reducing the reproductive 
        fitness and productivity of the ESU. In evaluating the effect 
        of hatchery fish on the status of an ESU, the presence of a 
        long-term hatchery monitoring and evaluation program is an 
        important consideration.

    We believe the law and policies are clear--carefully-managed 
propagation should have an important role to play in conserving salmon 
listed under the ESA. However, regulators are typically dogmatic and 
contrary to these possibilities.
The Mass-Marking Requirement
     Mass marking of salmon started in the early 1980s as a management 
tool for recreational fisheries to access healthy hatchery returns 
while theoretically minimizing harvest impacts on naturally spawning 
returns. The practice of mass marking hatchery fish began to spread to 
salmon in the Columbia Basin after the ESA listings in early 1990s and 
culminated in 2004 with federal appropriations language requiring mass 
marking at facilities receiving federal funding.
    The experience in the Columbia Basin for steelhead indicates that 
mass marking and the implementation of mark selective fisheries are not 
conservation measures. Naturally spawning steelhead in the Upper 
Columbia and Snake rivers were listed for protection under the ESA 
despite over a decade of mass marking and mark selective fishing. Money 
spent on mass marking and mark selective fishing could be reallocated 
to other actions that have a higher likelihood of contributing to 
recovery of naturally spawning populations.
    Mass-marking is detrimental to ocean fisheries monitoring. Harvest 
arrangements under the Pacific Salmon Treaty are based on coded wire 
tag (CWT) information. The Treaty includes a MOA that requires both 
countries to maintain a CWT database. Mass marking affects ocean 
fisheries sampling because the fin clip no longer indicates the 
presence of a CWT. A large number of samples with no tags will be sent 
to the tag labs, increasing the costs for the tag lab and complicating 
the data analysis, making it more difficult to assess ocean harvest 
impacts.
    Our tribes have requested that Congress reconsider the never-
authorized requirement, delivered through prior appropriations 
language, to visibly mark all salmon produced in federally funded 
hatcheries. We have requested that federal mass-marking requirements be 
waived in the Columbia River Basin in favor of local managers to ensure 
compatibility with our overall objective of ESA delisting and with 
prevailing laws and agreements: US v Oregon, Pacific Salmon Treaty and 
the Columbia Basin Fish Accords.
Incompatible Conservation Statutes
    All Columbia Basin salmon stocks suffer from predation. Predation 
is a naturally occurring source of mortality though the degree of that 
mortality may not be. Species laws like ESA, the Marine Mammal 
Protection Act and the Migratory Bird Act are all well intentioned, but 
poorly reconciled with one another. Predation amplified by species 
imbalance has become a significant source of mortality for salmon. 
Combined, protected marine pinnipeds and shore birds constitute the 
majority of predation on ESA stocks. Co-managers' ability to affect 
these interactions are extremely limited.
    Our tribes are encouraged by the recent efforts by Congress to 
amend the Marine Mammal Protection Act through the Endangered Salmon 
and Fisheries Predation Prevention Act. This Act would provide clarity 
and flexibility to co-managers to manage and balance ``hot-spots'' of 
pinniped predation on salmon and other sensitive species. It would also 
provide tribes equitable access to management tools.
Recommendations to Overcome Institutional Barriers:
        1) Incentivize de-listing for federal agencies--100-year 
        recovery timeframes are unacceptable socially and biologically. 
        Tribes and States and local governments have inherent 
        incentives to de-list and fully recover species. Federal 
        regulatory agencies do not. Creation of incentives and targets 
        for de-listing could synchronize activities of co-managers with 
        regulators.
        2) Resolve Scientific Gridlock through goal-driven management--
        We must ask the proper questions: Not ``how does poor 
        propagation management inhibit recovery,'' but rather ``how can 
        propagation be integrated with and support recovery.''
        3) Eliminate Salmon Mass-Marking Requirements--repeal the mass-
        marking requirement for Columbia Basin salmon hatcheries and 
        allow the practice to occur only with the concurrence of local 
        co-managers. Salmon managers should be provided the latitude to 
        make case-by-case decisions whether to mark fish and, if so, in 
        the appropriate percentages.
        4) Cross-cut budgeting--NOAA Fisheries budget documents are 
        nearly incomprehensible. The problem is not NOAA's alone. 
        Eleven separate federal agencies receive federal funds to 
        address some aspect of salmon management. NOAA Fisheries 
        resources should be directed to supporting the types of 
        hatchery actions the tribes are taking. To do so, NOAA 
        Fisheries must issue the necessary research permits in a timely 
        fashion. NOAA Fisheries' must find efficiencies in the 
        preparation of biological opinions for hatchery genetic 
        management plans
        5) Balance species interaction through greater flexibility of 
        the Marine Mammal Protection Act and the Migratory Bird Act.

    In summary, through combined efforts of the four tribes supported 
by a staff of experts, we are proven natural resource managers. Our 
activities benefit the region while also essential to the U.S. 
obligation under treaties, federal trust responsibility, federal 
statutes, and court orders. The Endangered Species Act is at its best 
when it provides beneficial coordination and resources. It is at its 
worst when it creates delay, bureaucracy and limits the tools co-
managers need to restore abundance. We welcome fresh eyes and where 
necessary, new oversight from this Committee.


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    The Chairman. Thank you very much for your testimony, Ms. 
Brigham.
    And next we have Mr. Reed Noss, who is a Professor of 
Biology at the University of Central Florida in Orlando. And, 
Dr. Noss, you are recognized for 5 minutes.

STATEMENT OF DR. REED F. NOSS, PROFESSOR OF BIOLOGY, UNIVERSITY 
              OF CENTRAL FLORIDA, ORLANDO, FLORIDA

    Dr. Noss. Thank you very much, Chairman Hastings, 
Representative Bordallo, and other members of the Committee. My 
name is Dr. Reed Noss, I am a Professor of Biology at the 
University of Central Florida. I have worked as a biologist for 
four decades, which happens to coincide precisely with the 
venerable history of the U.S. Endangered Species Act of 1973.
    I want to begin by reminding us why we have an Endangered 
Species Act. Well, the short answer is extinction. Americans 
were concerned in 1973, and they remain concerned today, about 
the extinction of species. As President Nixon said in signing 
the Act, ``Nothing is more priceless and more worthy of 
preservation than the rich array of animal life with which our 
country has been blessed.'' Americans overwhelmingly hold the 
value that wildlife and nature are good and ought to be 
preserved.
    For example, in a 2006 national survey, 81 percent of 
respondents agreed that taking good care of nature is part of 
our duty to God.
    The first stated goal of the ESA, which I think sometimes 
we forget, is to provide a means whereby the ecosystems upon 
which endangered species and threatened species depend may be 
conserved. But because Congress never provided clear direction 
for how to conserve ecosystems, we are basically stuck with 
trying to protect and recover most species on an individual 
basis. This is not the most cost-efficient means to protect our 
national heritage.
    However, lacking broader legislation, such as an endangered 
ecosystems act, the ESA is the best we have to work with. And, 
given the challenges and complexities of protecting and 
recovering species, the ESA has worked remarkably well.
    Preventing extinction means that we will still have the 
opportunity to benefit from nature in countless ways, from 
medical science and industry, for recreation, spirituality, and 
for the services such as the protection of--or provision of 
clean water, buffering of storm surge and flooding in coastal 
areas and otherwise, pollination of crops, production of 
multiple natural resources.
    One critical goal of the ESA, of course, is to recovery 
species to population sizes and distributions that will ensure 
their persistence in the long run, and where they can be 
delisted. It is important to understand that species recovery 
is extremely challenging today because the threats that led to 
species being listed in the first place have generally not 
subsided. In fact, many threats, such as population growth, 
resource consumption, urban sprawl, and climate change are only 
getting worse.
    Nevertheless, despite these continuing threats, the record 
of ESA is not so bad at all. As of December 2009, last time 
there was a complete listing figured, 25 previously listed 
species had been recovered. A high-profile example, which, of 
course, as Representative Bordallo mentioned, is the bald 
eagle, one of the first listed species, and our national 
symbol, by 2007 the bald eagle had recovered to the point where 
it was removed from the endangered species list. And I am lucky 
in Florida to see bald eagles literally every day, and it is a 
wonderful experience.
    Recent studies show that, in fact, most species, most 
listed species, have improved in status over time. Still, 
maintenance of viable populations of many listed species will 
continue--will require continuing species-specific 
interventions over the long term. Otherwise, they will go 
extinct. This finding should not be surprising. Human activity 
has made life tough for these species. Now they need our help 
to survive. It is really a very simple problem.
    In my written testimony I provide some information about a 
species I know well, the Florida Grasshopper Sparrow, which was 
listed under the ESA as endangered in 1986. Now, granted, the 
Florida Grasshopper Sparrow is no bald eagle, in terms of 
charisma. But if you look at this picture, I hope you will 
agree with me that it is actually a very attractive bird. Much 
more, it is also the flagship species of the Florida dry 
prairie--next slide--which is an ecosystem type only found in 
South Central Florida, nowhere else in the world. Now, the 
Florida Grasshopper Sparrow is declining abruptly--if I can 
have the next slide--it declined over 90 percent, due to 
conversion of its primary habitat to agriculture, especially 
improved pasture. But over the last decade, for reasons we 
don't understand, it has declined another 80 percent. And we 
don't really know why it is declining so rapidly.
    The U.S. Fish and Wildlife Service, due to funding 
limitations and probably some politics, has repeatedly refused 
to fund the necessary research to determine the cause of the 
decline. The likely extinction of the Florida Grasshopper 
Sparrow within the next few years does not represent a failure 
of the Endangered Species Act. It represents a failure of the 
U.S. Fish and Wildlife Service to obtain the necessary 
scientific knowledge to stop the population decline and achieve 
recovery. And this, in turn, is a result of limitations in 
funding and other problems.
    I discuss some other things in my written testimony, but I 
am out of time. So thank you very much for your attention.
    [The prepared statement of Dr. Noss follows:]

          Statement of Dr. Reed F. Noss Professor of Biology, 
            University of Central Florida, Orlando, Florida

    Good morning, Chairman Hastings, Representative Bordallo, and the 
other members of the Committee on Natural Resources. My name is Dr. 
Reed Noss. I am the Provost's Distinguished Research Professor of 
Biology at the University of Central Florida. I have served as 
President of the Society for Conservation Biology and Editor-in-Chief 
of its scientific journal, Conservation Biology. I am an Elected Fellow 
of the American Association for the Advancement of Science.
    I have worked in the fields of ecology and conservation biology for 
four decades, coinciding precisely with the venerable history of the 
U.S. Endangered Species Act of 1973. I teach conservation biology, 
ecosystems of Florida, ornithology, and history of ecology. My current 
research centers on the vulnerability of species and ecosystems to 
land-use change, climate change, and sea-level rise, and what we might 
do to address those threats. I have nearly 300 publications, including 
seven books, and am rated as one of the 500 most highly cited authors 
in all fields.
    I am honored to address this committee during the 40th anniversary 
year of the U.S. Endangered Species Act, passed by Congress with nearly 
unanimous support and signed by President Richard Nixon in 1973. This 
Act is nothing less than one the most important and influential pieces 
of conservation legislation in the history of the world.
Americans' concern about extinction
    I want to begin by reminding us why we have an Endangered Species 
Act (ESA). The short answer is extinction. The American people value 
their wildlife. They were concerned in 1973 and remain concerned today 
about the extinction of species. Extinction is forever; that is a 
cliche, but it is no less true.
    As President Nixon said in signing the Act, ``Nothing is more 
priceless and more worthy of preservation than the rich array of animal 
life with which our country has been blessed. It is a many-faceted 
treasure, of value to scholars, scientists, and nature lovers alike, 
and it forms a vital part of the heritage we all share as Americans. I 
congratulate the 93rd Congress for taking this important step toward 
protecting a heritage which we hold in trust to countless future 
generations of our fellow citizens. Their lives will be richer, and 
America will be more beautiful in the years ahead, thanks to the 
measure that I have the pleasure of signing into law today.''
    Americans remain concerned about extinction. According to a 
February 2013 survey of 657 registered voters conducted by Public 
Policy Polling, 61% of Americans are ``concerned about the rate that 
wildlife is disappearing'' (http://phys.org/news/2013-03-population-
growth-threat-species-poll.html). With continued human population 
growth, conversion of natural areas to human uses, climate change, and 
sea-level rise, the Endangered Species Act is needed much more today 
than when President Nixon signed the Act into law in 1973.
    Section 2 of the ESA states a clear purpose for the Act: ``The 
purposes of this Act are to provide a means whereby the ecosystems upon 
which endangered species and threatened species depend may be 
conserved, to provide a program for the conservation of such endangered 
species and threatened species, and to take such steps as may be 
appropriate to achieve the purposes of the treaties and conventions set 
forth in . . . this section.''
    Because Congress never provided clear direction for the first 
stated goal of the Act--to conserve ecosystems--we are stuck with 
trying to protect and recover most species on an individual basis or in 
relatively small groups. This is probably not the most cost-efficient 
means to protect biological diversity and the integrity of America's 
ecosystems. However, lacking broader legislation, such as an Endangered 
Ecosystems Act, the Endangered Species Act (ESA) is the best we have to 
work with. And, given the challenges and complexities of conserving 
species, it works remarkably well.
The value of species and nature
    An implicit assumption of the Endangered Species Act is that every 
species has value. This, in fact, is a dominant ethical norm of most 
religious and philosophical traditions around the world. In the United 
States, most people who belong to mainstream religions believe that God 
created all species and saw them as good. For example, Deuteronomy 
11:12: ``A land which the LORD thy God careth for: the eyes of the LORD 
thy God are always upon it, from the beginning of the year even unto 
the end of the year. '' Furthermore, the Bible suggests that it is our 
duty as humans to care for and steward God's creation. In a 2006 
American Values Survey, 81% of respondents agreed that ``Taking good 
care of nature is part of our duty to God'' (http://
ecoamerica.typepad.com/blog/files/ecoAmerica_AEVS_Report.pdf).
    A foundational principle of modern environmental ethics is that 
species have value in and of themselves, a view that is shared by a 
majority of Americans. A 1993 national poll conducted by Washington 
State University, Utah State University, and Oregon State University, 
and based on 1,300 phone interviews, found that 71% of respondents 
agreed with the statement, ``wildlife, plants, and humans have equal 
rights to live and develop on the earth;'' 89% agreed that ``humans 
have an ethical obligation to protect plant and animal species'' 
(http://ir.library.oregonstate.edu/xmlui/bitstream/handle/1957/24967/
EMNO8562.pdf?sequence=1).
    A 2010 poll conducted for The Nature Conservancy by the Republican 
polling firm, Public Opinion Strategies, and the Democratic polling 
firm, Fairbank, Maslin, Maullin, Metz & Associates, found that 
``roughly equal proportions of American voters believe that the best 
reason to conserve nature is for its own sake (42%) and for the 
benefits it provides to people (45%)'' (http://
www.conservationgateway.org/Files/Pages/key-findings-recent-
natio.aspx).
    Besides intrinsic value, species have utilitarian or instrumental 
value. Individual species, for instance, may possess chemicals or 
structures in their bodies useful to medicine or industry, and there 
are many examples of such discoveries. Preventing extinction means that 
we still have the opportunity to make new such discoveries. Species 
also have value in terms of their role in ecosystems. It is now well 
established scientifically that the diversity of species in an 
ecosystem contributes to its ``resilience,'' which is the ability to 
maintain or rapidly recover essential functions after disturbance. 
Ecosystem resilience is vitally important to human society because it 
assures the continuation of essential ecosystem services such as the 
provision of clean water, buffering of storm surges in coastal areas, 
pollination of crops, production of timber and other resources, and 
other benefits.
    It is a bit tricky to determine the contribution of each individual 
species to ecosystem resilience, mostly because the vast majority of 
species are poorly studied scientifically. Some species clearly play 
more pivotal roles than others. As noted in a recent review, ``The 
presence of one or a handful of species, rather than the overall 
diversity of an ecosystem, is often the determinant of stability 
against different perturbations . . . depending on the types of 
stability and perturbation, different species may play key roles'' 
(Ives and Carpenter 2007). A synthesis of grassland biodiversity 
experiments shows that high plant species richness is needed to 
maintain ecosystem services: ``Although species may appear functionally 
redundant when one function is considered under one set of 
environmental conditions, many species are needed to maintain multiple 
functions at multiple times and places in a changing world'' (Isbell et 
al. 2011).
    Given continued uncertainty about the ecological role of individual 
species, it is sensible to prevent the human-caused extinction of any 
species. As wildlife biologist (turned philosopher) Aldo Leopold stated 
decades ago, ``To keep every cog and wheel is the first precaution of 
intelligent tinkering.''
    Americans are not ambivalent about the value of nature. The 2010 
poll referred to above, conducted for The Nature Conservancy, found 
that 90% of registered voters in the U.S. believe that ``Nature's 
benefits for people'' are ``extremely important'' or ``very 
important.'' The margin of error in this poll was plus or minus 3.5%.
Listing and recovering species
    One key step for preventing extinctions is to list species that 
meet the criteria for listing under the ESA. Many highly imperiled 
species are not currently protected under the Act. A recent study 
compared the coverage of species under the ESA with the international 
IUCN Red List of Threatened Species. The authors found, for example, 
that 40% of IUCN-listed birds in the U.S. are not listed under the ESA. 
Altogether, a nearly 10-fold increase in listing would be required for 
the ESA to protect all IUCN-listed species found in the U.S. (Harris et 
al. 2011). It is also important to list declining species 
expeditiously. Currently, the prospects for many listed species are dim 
because they were already severely imperiled at the time they received 
protection under the Act.
    Another critical goal of the ESA is to recover listed species to 
population sizes and distributions that will assure their persistence 
over the long run, in which case they can be delisted under the Act. 
One concern of people who question the efficacy of the Endangered 
Species Act is that species are not recovering in a timely manner. By 
definition under the ESA, a species is recovered when it is neither 
``in danger of extinction throughout all or a significant portion of 
its range'' (ESA sec 3(6)) nor likely to become so ``within the 
foreseeable future'' (ESA sec. 3(20)). Therefore, to be legally 
considered recovered, a species must be sufficiently abundant and the 
threats it faces eliminated or managed such that delisting the species 
does not set off another round of decline (Neel et al. 2012).
    It is important to understand that species recovery is extremely 
challenging today because the threats that led to species being listed 
in the first place have generally not subsided. Many, such as human 
population growth, resource consumption, urban sprawl, and climate 
change, are only getting worse.
    Nevertheless, despite these continuing threats to species, the 
record of the ESA for species recovery is not so bad. As of December 
2009, 25 previously listed species had been delisted and considered 
recovered. A high-profile example is the Bald Eagle, designated our 
national symbol by the Second Continental Congress in 1782 and one of 
the first species to be placed on the endangered species list. For the 
Bald Eagle, the ESA clearly worked. By 2007, the eagle population had 
recovered sufficiently to be removed from the list. I see Bald Eagles 
virtually every day where I live in Florida, and it's always a 
wonderful experience.
    A 2005 study found that 52% of species listed under the ESA either 
showed improvements in status or were not declining over the time 
period 1988-2002. The status of listed species generally has improved 
over time, with only 35% still declining 13 years or more after 
protection under the ESA (Male and Bean 2005).
    Other researchers have noted improvements in recovery planning in 
recent years. For example, in comparison with plans completed prior to 
previous reviews in the early 1990s, Neel and colleagues found that ``a 
larger proportion of species in later plans have the potential to be 
delisted, more have at least one quantitative recovery criterion, the 
overall numbers of populations and individuals required for recovery 
would increase, and these numbers would exceed the numbers when the 
recovery plan was written for more species'' (Neel et al. 2012).
    Still, too many species listed as Threatened or Endangered are 
unlikely to recover. Delisting may not be possible for many species, 
even when a recovery plan is fully implemented. The U.S. Fish and 
Wildlife Service and National Marine Fisheries Service estimate that 
delisting may be possible for only 73% of listed species. Neel et al. 
(2012) note that ``delisting objectives for abundance remain on the 
lower end of the continuum of viability, with 68%-91% falling below 
published thresholds for the minimum numbers of individuals. In 
addition, 144 species could be considered recovered with even fewer 
populations than existed when the recovery plan was written.'' These 
facts suggest that the best available science is not always applied to 
delisting decisions.
    We must acknowledge the need to continue and strengthen 
conservation efforts for imperiled species, even after their formal 
recovery goals have been met. A recent study determined that 
maintenance of viable populations of many species will require 
continuing, species-specific intervention over the long term. The 
authors termed such species ``conservation reliant'' and determined 84% 
of the species listed under the ESA are conservation reliant and will 
require ``continuing, long-term management investments'' (Scott et al. 
2010). This finding should not be surprising. Human activity has made 
life tough for these species. Now it is our responsibility to help them 
survive.
The Florida Grasshopper Sparrow
    I'd like to give you an example of a species I know well, and have 
studied in the field, a species which is declining to extinction 
despite being listed under the ESA as Endangered in 1986. This species 
is the Florida Grasshopper Sparrow. This bird occurs only in the unique 
dry prairie ecosystem of south-central Florida, some 90% of which has 
been converted to improved pasture, agriculture, and recently, urban 
sprawl.
    This sparrow is admittedly no Bald Eagle in terms of public 
charisma, but it means a lot to many of us in Florida. Close-up, it's 
really quite attractive (see photo below) and it is the flagship 
species of the Florida dry prairie, an ecosystem found nowhere else on 
earth (see photo below). Given that the first stated goal of the ESA is 
to conserve ecosystems, this sparrow potentially plays a very valuable 
role.


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    After declining at least 90% from habitat loss during the 20th 
century, the Florida Grasshopper Sparrow has declined another 80% just 
over the past decade (see figure below), and it is now probably the 
most highly imperiled bird in the continental United States.



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    We don't know exactly why the Florida Grasshopper Sparrow has 
declined so abruptly over recent years. Although we have some promising 
hypotheses, the U.S. Fish and Wildlife Service has repeatedly refused 
to fund the necessary field research to determine the cause, or causes, 
of decline. I am a founding member and former chair of the Florida 
Grasshopper Sparrow Working Group, an interagency group of scientists 
and managers, which serves as the de facto recovery team for the 
sparrow. We advise the U.S. Fish and Wildlife Service regarding 
protection, recovery, and management strategies and actions. Over the 
past few years we have submitted several proposals for field research 
on the Florida Grasshopper Sparrow to determine the causes of decline 
and what might be done to reverse the decline and recover the species. 
The local (Vero Beach) Field Office of the U.S. Fish and Wildlife 
Service has avidly encouraged and solicited our research proposals and 
sent them up the line, where they are uniformly and perhaps arbitrarily 
rejected by the Regional or National Offices of the Service.
    The point is, we cannot recover species if we don't understand the 
causes of decline and the basic biology of the species. The likely 
extinction of the Florida Grasshopper Sparrow within the next few years 
does not represent a failure of the Endangered Species Act. It 
represents a failure of the U.S. Fish and Wildlife Service to obtain, 
through research, the scientific knowledge needed to stop the 
population decline and achieve recovery--and then act on that 
information. This failure, in turn, reflects at least in part the 
insufficient budget given to the Endangered Species Program of the 
Service by Congress and the Administration.
Endangered species or private property rights?
    Finally, I will address briefly the perceived conflict between 
endangered species protection and private property rights. Conflicts 
between non-Federal landowners and the welfare of imperiled species are 
inevitable because, according to the U.S. General Accounting Office 
(1994), more than half of the species listed under the ESA have 81% of 
more of their habitat on private or other non-Federal lands. Species 
distributions seldom conform to political boundaries, so the states, 
tribes, and local jurisdictions are generally not well suited to 
oversee protection and recovery of species listed under the ESA. This 
is a federal--and in some cases an international--responsibility.
    Our country has mechanisms to resolve conflicts between endangered 
species protection and private property rights. For instance, in the 
1982 amendments to the ESA, Section 10(a) authorizes the U.S. Fish and 
Wildlife Service and National Marine Fisheries Service to issue to non-
Federal entities a permit for the ``incidental take'' of endangered and 
threatened species on their lands. An incidental take permit allows a 
landowner to proceed with an activity that is legal in all other 
respects, but which results in the ``incidental'' taking of a listed 
species.
    A number of incentives exist for non-Federal landowners who have 
listed species or species proposed for listing on their properties to 
pursue incidental take permits. The most significant requirement of 
Section 10(a) is that an application for an incidental take permit must 
include a habitat conservation plan (HCP) for any and all listed 
species that might be subject to take under the proposed activity. The 
purpose of an HCP is to minimize and mitigate the effects of the 
permitted action (for example, new housing development) on listed 
species. HCPs are intended to accomplish this objective through the 
protection, restoration, and management of habitat for the species 
covered by the plan.
    A general benefit for private landowners, counties, and local 
jurisdictions who engage in the Section 10(a) permitting and the 
habitat conservation planning process is that a well-developed and 
defensible HCP, especially one that addresses the needs of multiple 
species and ecosystems, streamlines the permitting process and results 
in reduced costs to landowners and government in the long term. Some 
landowners who have multiple listed species on their properties have 
described HCPs enthusiastically as ``one-stop shopping,'' i.e., a 
single permit allows them to address all listed species concerns 
simultaneously for the specified period of the incidental take permit 
(generally from several years to 75 years).
    In reality some HCPs have been of high quality and successful in 
meeting conservation objectives (so far), whereas others have been 
dismal failures. It all comes down to the quality of the science 
underlying the HCP, the moral commitment of the landowners and the 
agencies to follow the best available science for the benefit of the 
species concerned, and the reliability of long-term funding to 
implement the plan and to make adjustments to the plan (what we call 
``adaptive management'') as conditions change and new knowledge about 
the species and their ecosystems is obtained.
Our responsibility
    To conclude, when President Nixon signed the ESA into law in 
December 1973, it was not a partisan issue. The bill was written by 
Republicans and Democrats, and it passed the House by a vote of 355 to 
4. Respect for life and prevention of extinction is a universal ethical 
value. As Americans, we should be proud to have a powerful law that 
reflects this ethical value, and we should do everything we can to 
assure its successful implementation. I trust that this committee will 
take this responsibility seriously.
    Thank you for the opportunity to testify before this esteemed 
committee.
Literature Cited in this Testimony:
    General Accounting Office, U.S. 1994. Endangered Species Act: 
information on species protection on nonfederal lands. GAO/RCED-95-16 . 
http://www.gao.gov/assets/230/220827.pdf.
    Harris, J.B.C. Harris, J.L. Reid, B.R. Scheffers, T.C. Wanger, N. 
S. Sodhi, D.A. Fordham, and B.W. Brook. 2012. Conserving imperiled 
species: a comparison of the IUCN Red List and U.S. Endangered Species 
Act. Conservation Letters 5:64-72.
    Isbell, F., V. Calcagno, A. Hector, et al. 2011. High plant 
diversity is needed to maintain ecosystem services. Nature 477:199-202.
    Ives, A.R., and S.R. Carpenter. 2007. Stability and diversity of 
ecosystems. Science 317:58-62.
    Male, T.D., and M.J. Bean. 2005. Measuring progress in US 
endangered species conservation. Ecology Letters 8:986-992.
    Neel, M.C., A.K. Leidner, A. Haines, D.D. Goble, and J.M. Scott. 
2012. By the numbers: How is recovery defined by the US Endangered 
Species Act? BioScience 62:646-657.
    Scott, J.M, D.D. Goble, A.M. Haines, J.A. Wiens, and M.C. Neel. 
2010. Conservation-reliant species and the future of conservation. 
Conservation Letters 3:91-97.
                                 ______
                                 
    The Chairman. Thank you very much, Dr. Noss.
    We now have Mr. Patrick Parenteau, who is a Professor at 
the Vermont Law School in South Royalton, Vermont. You are 
recognized for 5 minutes.

 STATEMENT OF PATRICK PARENTEAU, PROFESSOR OF LAW, VERMONT LAW 
                SCHOOL, SOUTH ROYALTON, VERMONT

    Mr. Parenteau. Thank you, Chairman Hastings and 
Representative Bordallo, for the opportunity to appear here. My 
career, like Dr. Noss, has also spanned about 40 years in 
tracking the Endangered Species Act. And the ESA has occupied a 
major focus of my work over those years. And I have seen the 
Act from every perspective you can imagine. I have been on both 
sides of the cases. I have represented plaintiffs, I have 
represented defendants, I have represented the Federal 
Government, I have represented the State governments. So I 
believe I have some perspectives that might be of some value to 
the Committee. At least I hope so.
    Make no mistake about it. We are facing an extinction 
crisis. Human-caused extinction rates are 100 to 1,000 times 
background rates of extinction, according to Dr. E.O. Wilson, 
Dr. Reed Noss, and many other distinguished conservation 
biologists. And at the rate we are going, we are looking at 
rates of 10,000 times background rates. We are looking at the 
prospect of losing half of the species on earth in some of the 
worst case analyses of global climate change and other forces 
that are affecting habitat and ecosystems upon which these 
species depend.
    We do have an ethical obligation to do something about 
that. Much of what is happening can be avoided. Much of what is 
happening with the resources that are being lost is waste. 
There are alternatives that can be used to avoid some of these 
consequences. It is to human benefit to do so. The ecosystem 
services that Reed Noss has mentioned amount to trillions of 
dollars annually on a global basis. So we are talking about 
economic assets, as well as we are talking about natural 
values, intrinsic values of species and ecosystems.
    The ESA is a vital safety net for these species. There is 
no question but hundreds of species would have gone extinct by 
now but for the Endangered Species Act, some of which are very 
well-known species: the eagle, the alligator, the condor, the 
whooping crane. But many of which are not. They are at the 
bottom of the food chain. But as E.O. Wilson properly points 
out, it is the little things that run the world. Those are the 
parts of the ecosystem we have to be paying attention to 
because those are the things that provide the pollination and 
other services that Dr. Noss talks about.
    So, the ESA is an absolutely vital piece of the puzzle, but 
it is a tiny piece of the puzzle, in terms of the challenges 
that we are facing if we are going to turn this situation 
around, try to preserve some of the earth's magnificent 
biological diversity. The irony of the moment is the earth has 
the richest composition of biological diversity in its geologic 
history, and yet we are losing it at the most rapid rate we 
have seen in many, many millions of years.
    Why does recovery take so long under the Endangered Species 
Act? That is what everyone wants to know. Well, if you look at 
the data, 85 percent of the species that are listed under the 
ESA are there because of habitat loss. In some cases, 
catastrophic habitat loss. Over 95 of habitat has been lost, in 
the case of many of these species. By the time they are listed, 
the window of opportunity to save them is very narrow. The 
longer it takes to list them, the longer it takes to designate 
critical habitat, the longer it takes to implement recovery 
plans, the longer it takes to spend the money to conserve the 
habitat that remains, the less chance they have for survival, 
the greater the conflict, and the less cost-effective the 
measures that you have at your disposal. So, it is absolutely 
critical that species get listed, and that these other 
mechanisms get implemented.
    Again, why is recovery so difficult? It is not possible to 
turn around that catastrophic loss of habitat that has taken 
hundreds of years to accumulate in a matter of decades, even. 
For some of these species, we are probably talking about a 
century or more, if ever, some of these species can be totally 
delisted. The whooping crane may be a perpetual care species, 
simply because of the limited capability for it to reproduce, 
and so on. So, those are some of the reasons.
    What about the role of litigation? The primary reason for 
the citizen suit provision of the Endangered Species Act and so 
many other environmental statutes is to hold the government 
accountable. The cases that we are talking about are situations 
where courts have found repeatedly that the government has 
deliberately and repeatedly violated mandates, non-
discretionary duties. That is why we have litigation.
    Why do we have so many violations? Because the agencies are 
not properly staffed, they are not properly funded. The courts 
have found this over and over again. The courts have said, 
``Either change the law, or fund the law, but don't come to 
court and say, `We need more time, we are not going to obey the 
mandates of the statute.' Courts don't exist to condone 
violations of the law.'' If we want a rule of law in this 
country, we need litigation to hold the government accountable. 
That is the primary reason for these lawsuits.
    Finally, some of the flexibility mechanisms that the law 
provides: safe harbors, no surprises, candidate conservation 
agreements, conservation banks, 4(d) rules, habitat 
conservation plans, recovery credits, tax deductions, many, 
many market-based solutions. Everybody that is at this table--
tribal, State, local, nonprofit, profit, for-profit groups--
everybody has a role to play.
    And everything that is being done so far is fine, but we 
need to do much more, if we are going to turn this situation 
around. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Parenteau follows:]

           Statement of Patrick Parenteau, Professor of Law, 
              Vermont Law School, South Royalton, Vermont

    My name is Patrick Parenteau. I am professor of law and senior 
counsel to the Environmental and Natural Resources Law Clinic at 
Vermont Law School. I have been actively involved in the practice of 
environmental law for almost forty years. My career spans every facet 
of environmental law. I have held senior positions in the non-profit 
sector with the National Wildlife Federation, in the federal government 
as general counsel with EPA Region One, in state government as 
Commissioner of the Vermont Department of Environmental Conservation, 
in the private sector as of counsel with the law firm of Perkins Coie, 
and in academia as director of the environmental law program at VLS. I 
have substantial experience with the subject matter of this hearing. I 
was involved in some of the earliest and most important cases under the 
Endangered Species Act; I testified in the legislative hearings on the 
amendments to the Act in 1978, 1979, and 1982; I have appeared in all 
four proceedings before the endangered species exemption committee 
created by the 1978 amendments; I served as special counsel to the U.S. 
Fish and Wildlife Service in the northern spotted owl exemption 
proceedings; I have commented on a number of rulemaking sunder he Act 
and have published numerous articles on its successes as well as its 
shortcomings.
    I would like to thank Chairman Hastings and Representative Bardallo 
for providing me this opportunity to share the following observations 
on the subject of today's hearing.
I. THE EXTINCTION CRISIS IS REAL AND THE COOPERATION AND COMMITMENT OF 
        ALL PARTIES--PUBLIC AND PRIVATE, FOR PROFIT AND NOT FOR 
        PROFIT--IS REQUIRED TO MEET THE CHALLENGE.
    The consensus of the scientists who study species and ecosystems is 
that we are in the midst of the sixth great extinction rivaling the 
five mass extinction events in earth's history.\1\ A poll by the 
American Museum of Natural History found that 7 in 10 biologists 
believe that mass extinction poses a colossal threat to human 
existence, a more serious environmental problem than even its 
contributor, global warming, and that the dangers of mass extinction 
are woefully underestimated by most everyone outside of science. 
Professor EO Wilson (The Diversity of Life) has calculated that human 
caused extinction rates are between 100 and 1,000 times the natural 
background rate of extinction and could climb as high as 10,000 times 
in a few decades. According to the latest IUCN ``Red Book,'' of the 
40,168 species that the 10,000 scientists in the World Conservation 
Union have assessed, 1 in 4 mammals, 1 in 8 birds, 1 in 3 amphibians, 
and 1 in 3 conifers are at risk of extinction. The peril faced by other 
classes of organisms is less thoroughly analyzed, but fully 40 percent 
of the examined species on the planet are in danger, including up to 51 
percent of reptiles, 52 percent of insects, and 73 percent of flowering 
plants. Here in the U.S. the number of species listed under the ESA has 
grown to over 2000, and hundreds, perhaps thousands more are candidates 
for listing.
---------------------------------------------------------------------------
    \1\ See Millennium Ecosystem Assessment, Ch. 4 Biodiversity, 3 
(2005); available at http://www.unep.org/maweb/en/Index.aspx. The study 
found that over the past few hundred years humans may have increased 
the species extinction rate by as much as three orders of magnitude. 
The study also found that 60 percent of the world's ecosystem services 
assessed have been degraded or are being used unsustainably.
---------------------------------------------------------------------------
    The causes of this dramatic loss of biological diversity are well 
known: habitat loss; invasive species; pollution; unsustainable 
harvests of marine life; and, looming ever larger, climate disruption. 
The truth is that humans exert a profound effect on the earth's 
ecosystems and evolutionary processes. The good news is that humans can 
change the way they use land and water and other natural resources and 
thereby reduce their impact on natural systems. However it will take an 
unprecedented level of cooperation and commitment among all levels of 
government and all stakeholders in order to halt and reverse the march 
towards extinction.
    As the title of this hearing indicates tribal, state and local 
governments all have important roles to play in species conservation. 
So does the federal government and so do the other nations of the 
world. It is not either/or; it is all of the above. There are many 
examples of how each level of government contributes to conservation. 
The Nez Perce Tribe assumed management of the gray wolf recovery 
process in Idaho. The Columbia River Intertribal Fish Commission has 
been working for decades to restore the depleted runs of Pacific 
salmon. The Yurok Tribe has been studying ways of reintroducing the 
California condor to their lands. The list goes on.
    There are many examples of what states are doing as well: The 
California Natural Communities Conservation Program; the Oregon salmon 
management plan; \2\ the network of state natural heritage programs in 
every region of the country; \3\ the many statewide habitat 
conservation plans adopted under the ESA; and the fact that all but 
four states have adopted state endangered species acts modeled on the 
ESA; \4\
---------------------------------------------------------------------------
    \2\ Oregon Department of Fish and Wildlife http://
www.dfw.state.or.us/mrp/salmon/.
    \3\ NaturServ http://www.natureerve.org/visitLocal/.
    \4\ American bar Association, Endangered Species Act: Law Policy 
and Perspective, 2d ed. Ch. 11 (2010).
---------------------------------------------------------------------------
    Local governments also have a key role to play in promoting smart 
growth, preventing sprawl, investing in green infrastructure through 
proper management and protection of floodplains, wetlands and open 
space. The very first habitat conservation plan was created in San 
Bruno County California to conserve the habitat of the San Bruno blue 
butterfly. Volusia County in Florida developed a comprehensive beech 
lighting program to protect nesting sea turtles. Austin Texas created 
one of the first multi-species HCPs to balance development and 
conservation goals. I am sure there are many more examples of local 
success stories that unfortunately do not get as much attention as the 
controversies that periodically erupt when development collides with 
the needs of species.
II. THE ESA IS AN INDISPENSABLE TOOL IN THE SPECIES AND ECOSYSTEM 
        CONSERVATION EFFORT
    2013 marks the 40th anniversary of the ESA. To say that the Act has 
led a tumultuous life would be an understatement. A law first proposed 
by President Nixon and passed overwhelmingly in both the House and 
Senate has become a lightning rod for political attack. Too often these 
attacks have shed more heat than light on the issues and the genuine 
problems that do exist. The ESA is not a perfect law; nor are any of 
the other laws passed by Congress. But the flaws have more to do with 
how the law is implemented than how it is written. A full discussion of 
all the ways in which the administration of the Act could be improved 
as well as what amendments could actually strengthen the Act is beyond 
the scope of this presentation. Suffice to say I welcome the day when 
there can be a sober and objective analysis of ways in which the 
threats to species can be reduced and the ecosystems on which they 
depend can be better conserved while enhancing sustainable development 
and job creation goals.
    For now however, it is clear that but for the ESA many more species 
would have gone extinct and many more would be doomed to that fate. 
According to the National Research Council, the ESA has saved hundreds 
of species from extinction.\5\ Some of the more charismatic species 
rescued from the brink include the whooping crane, bald eagle, 
peregrine falcon, gray and red wolf, grizzly bear, and gray whale. A 
study published in the Annual Review of Ecological Systematics 
calculated that 172 species would potentially have gone extinct during 
the period from 1973 to 1998 if Endangered Species Act protections had 
not been implemented.\6\ According to the U.S. Fish and Wildlife 
Service, of the listed species whose condition is known, 68 percent are 
stable or improving, and 32 percent are declining. The longer a species 
enjoys the ESA's protection, the more likely it is that its condition 
will stabilize or improve. The law has also helped to preserve millions 
of acres of forests, beaches, wetlands and wild places that serve as 
critical habitat for these species.
---------------------------------------------------------------------------
    \5\ National Academies Press, Science and the Endangered Species 
Act, 4 (1995).
    \6\ Mark W. Schwartz, ``The Performance of the Endangered Species 
Act,'' Annual Review of Ecology, Evolution, and Systematics Vol. 39: 
279-299 (2008).
---------------------------------------------------------------------------
    The point is that a national law is needed to deal with a problem 
as all-encompassing as extinction. Tribes, states and local governments 
have done a lot and could do much more but they cannot do everything 
necessary to manage wide ranging species like wolves and bears, let 
alone global species like turtles and whales. The threats to these 
species are increasingly global such as climate disruption. The 
response to these threats must be ecosystem based and occur on a 
landscape scale. As species and ecosystems cross political boundaries 
so too must the solutions. Species must a have a floor of protection to 
survive. Leaving protection to the uncertainties of a piecemeal 
approach and the geo-political differences that exist in the country 
will not work. A good example of this problem is the Dead Zone in the 
Gulf. It is caused by the runoff of nutrients form the vast Mississippi 
River watershed. No one state can fix the problem. The upstream states 
lack the incentive to incur the costs of controlling the runoff from 
their farms for the benefit of the downstream states and their fishing 
industry. The Clean Water Act provides a mechanism to address this kind 
of trans-boundary problem. Without a federal law little progress would 
be possible. The same is true is species conservation, perhaps even 
more so. It is difficult to judge the worth of individual species some 
with obscure names and no known commercial value. It is always easy to 
justify one more project that takes one more acre of shrinking habitat. 
Yet this whittling away of habitat, an acre at a time, is responsible 
for 85% of the species on the ESA list.\7\ The larger the list grows 
and the longer it takes to implement real recovery efforts the greater 
the costs and disruption and the less chance there is for a promt 
recovery.
---------------------------------------------------------------------------
    \7\ Wilcove et al, ``Quantifying Threats to Imperiled Species in 
the United States,'' Vol. 48, No. 8 (Aug., 1998), pp. 607-615.
---------------------------------------------------------------------------
    Having a central repository of information and expertise about 
species and the efficacy of various recovery techniques is also 
beneficial and facilitates efforts by tribes, states and local agencies 
that wish to participate in conservation efforts. Of course this is a 
two way street. Federal agencies have much to learn from those who are 
closest to the resources and activities affected by the ESA.
III. ``SUE AND SETTLE'' IS A RED HERRING THAT DISTRACTS FROM THE 
        CRITICAL NEED TO STRENGTHEN THE ESA'S RECOVERY MECHANISMS
    I have read the Chamber of Commerce report ``Sue and Settle: 
Regulating behind Closed Doors.'' While it makes for entertaining 
reading I find it badly misrepresents what actually happens in these 
cases.
    First, ``sue and settle'' is an old story, and it has more to do 
with politics than reality. Not so long ago the George W. Bush 
administration was accused of entering into sweetheart deals with 
industry. My colleague Michael Blumm wrote a law review article 
documenting a number of these deals including one that sought to 
relinquish federal rights on public lands and extinguish wilderness 
study areas without conferring with congress as required by law.\8\
---------------------------------------------------------------------------
    \8\ Blumm, ``The Bush Administration's Sweetheart Settlement 
Policy: A Trojan Horse Strategy for Advancing Commodity Production on 
Public Lands,'' Environmental Law Reporter, Vol. 34, p. 10397, May 
2004.

---------------------------------------------------------------------------
    The Chamber report states:

        ``Sue and settle occurs when an agency intentionally 
        relinquishes its statutory discretion by accepting lawsuits 
        from outside groups that effectively dictate the priorities and 
        duties of the agency through legally binding, court-approved 
        settlements negotiated behind closed doors--with no 
        participation by other affected parties or the public.

    Almost nothing in that statement is accurate. First, most of the 
cases cited involve actions seeking to enforce mandatory duties imposed 
by statute. In the case of the ESA nearly all of the cases involve 
citizen suits to enforce statutory deadlines such as the deadline for 
making decisions on whether to list a species or designate critical 
habitat. Where discretion is involved suits are brought under the 
Administrative Procedure Act (APA) and are subject to a standard of 
review that is highly deferential to the agency. In no case of which I 
am aware has an agency ``intentionally relinquished its statutory 
discretion.'' Agencies may choose not to raise arguments they may have 
on jurisdictional or procedural grounds but that is not the same as 
relinquishing discretionary authority. Since the days of Attorney 
General Edwin Meese the Department of Justice has had a policy that 
explicitly forbids entering into agreements that either cede statutory 
authority or bind future administrations or congressional 
appropriations.\9\ Every consent decree I've ever seen has a 
boilerplate provision explicitly stating that the agency retains all of 
its statutory discretion.
---------------------------------------------------------------------------
    \9\ AUTHORITY OF THE UNITED STATES TO ENTER SETTLEMENTS LIMITING 
THE FUTURE EXERCISE OF EXECUTIVE BRANCH DISCRETION June 15, 1999 http:/
/www.justice.gov/olc/consent_decrees2.htm.
---------------------------------------------------------------------------
    Second, though it is certainly true that settlement negotiations 
occur ``behind closed doors,'' which is the only way cases can be 
settled, proposed consent decrees under the ESA and other environmental 
statutes must be published in the Federal Register, the public and 
affected parties are allowed to comment, and the judge must make a 
finding that the consent decree is in the public interest and is not 
contrary to law. I am aware of instances, including one case in which I 
was involved, where as a result of public comment a judge has declined 
to enter a decree and ordered the parties back to the negotiation 
table. Addition the DOJ has the statutory right to comment on ever 
consent decree in a citizen suit and object to agreements that 
compromiser federal interests. Courts pay particular attention to the 
views of DOJ in such cases.
    Third, settlements like the ones in the ``mega listing'' cases 
cited by the Chamber do not ``dictate the priorities and duties of the 
agency.'' Rather these cases enforce duties already embodied in the 
statute. Indeed if there was no duty there would be no lawsuit and no 
settlement. Moreover, the listing settlements do not dictate what the 
ultimate decision must be as to any particular species. Rather the 
settlements establish a reasonable timetable for making decisions that 
in some case are long past the statutory deadline.\10\ Again if 
conservation is the goal the sooner a species gets listed the better 
the chances of recovery and the less costly and disruptive it will be 
for everyone.
---------------------------------------------------------------------------
    \10\ See FWS Listing Workplan to implement the settlements in CBD v 
FWS and WildEarth Guardians v FWS http://www.fws.gov/endangered/
improving_esa/listing_workplan.html.
---------------------------------------------------------------------------
    Fourth, contrary to the arguments of some, is little evidence that 
ESA citizen suits distort agency priorities and actually impede 
recovery efforts. In one of the few empirical studies done on this 
question the authors actually concluded that the citizen suits targeted 
species facing higher threats than those identified by FWS as deserving 
of higher priority for listing.\11\ The authors stated: ``Among species 
in conflict with development citizen initiated species are 
significantly more threatened than FWS-initiated species.''
---------------------------------------------------------------------------
    \11\ Barry J. Brosi and Eric G.N. Biber, ``Citizen Involvement in 
the U.S. Endangered Species Act,'' Vol. 337 Science (August 17, 2012).
---------------------------------------------------------------------------
    Fifth, batch listings like those agreed to in the mega listing 
cases are actually more efficient than listing species one by one. 
Having a definite timetable with a cease fire agreement to allow the 
agencies to work through the backlog makes sense. The settlements in 
the listing cases have given the agencies more control over the process 
than they had before when they were constantly being sued for violating 
the law. The courts cannot simply condone statutory violations brought 
to their attention.

    The Chamber report also alleges:

        ``This process also allows agencies to avoid the normal 
        protections built into the rulemaking process--review by the 
        Office of Management and Budget and the public, and compliance 
        with executive orders--at the critical moment when the agency's 
        new obligation is created.''

    This is simply not true. Agencies must comply with the law as 
written by Congress, including the requirements for notice and comment 
rulemaking provided in the APA (5 U.S.C. Sec. 553). Courts must reverse 
agency actions that are contrary to law or undertaken without 
observance of legally required procedures (5 U.S.C. Sec. 706). While 
agencies can commit to a schedule for performing their mandatory 
duties, they cannot settle litigation by making commitments concerning 
the substance of final regulations they will issue. Agencies have 
inherent authority to reconsider prior regulatory decisions so long as 
they have a reasoned basis for doing so. Motor Vehicle Mfrs. Ass'n v. 
State Farm Automobile In. Co., 463 U.S. 29, 56-57 (1983).
    Courts do not simply rubber stamp these agreements. A good example 
is Conservation Northwest v Harris, No. 11-35729 (April 25, 2013), 
where the Ninth Circuit recently rejected a consent decree on the 
ground that it made a substantive change to the Survey and Management 
Standard of a the Northwest Forest Plan without going through the 
proper rulemaking process for making such a change.
IV. CONCLUSION
    Congress has included citizen suits in a large number of 
environmental statutes including the ESA. Experience has shown that 
such suits are a critical component of the implementation of these 
laws.\12\ These suits hold agencies accountable to the rule of law and 
to the will of congress. There is no merit to the charge that such 
suits are collusive. There are many safeguards built into the judicial 
process including the requirement that plaintiffs prove standing to 
even bring the case, the requirement that courts must approve 
settlements after taking public comments into account, and the 
requirements of the APA regarding rulemaking procedures such as notice 
and comment and reasoned explanations for changes in policy.
---------------------------------------------------------------------------
    \12\ Robert L. Glicksman, ``The Value of Agency-Forcing Citizen 
Suits to Enforce Nondiscretionary Duties,'' 10 Widener L. Rev. 353 
(2004).
---------------------------------------------------------------------------
    The success of the ESA depends on many things starting with 
adequate funding. As many commentators have noted, Congress needs to 
provide greater incentives to encourage habitat conservation. The 
agencies responsible for administering the Act, FWS and NOAA, have 
created a number of opportunities for tribes, states, local authorities 
and private parties to participate in the process. These include safe 
harbor agreements, no surprises guarantees, candidate conservation 
agreements, recovery credits and tax deductions, and conservation 
banking opportunities.\13\ Those who genuinely want to engage in 
conservation can find many ways of doing so. There may well be 
disagreements over what is actually needed for any particular species 
but decisions must ultimately be based on the best available science.
---------------------------------------------------------------------------
    \13\ See FWS Endangered Species Program http://www.fws.gov/
endangered/.
---------------------------------------------------------------------------
    Thank you. I would be happy to answer any questions.
                                 ______
                                 
    The Chairman. Thank you very much for your testimony.
    And next I will recognize Mr. Steve Ferrell, who is the 
wildlife and endangered species policy advisor to the Wyoming 
Governor, Matt Mead. You are recognized.

  STATEMENT OF STEVE FERRELL, WILDLIFE AND ENDANGERED SPECIES 
        POLICY ADVISOR, STATE OF WYOMING, CODY, WYOMING

    Mr. Ferrell. Thank you, Mr. Chairman, members of the 
Committee. Before I start, Governor Mead asked that I share 
with you his appreciation for the efforts of former Secretary 
Salazar and Fish and Wildlife Director, Dan Ashe, for their 
efforts in helping to delist wolves in Wyoming. Now, to my 
testimony.
    States are unquestionably qualified to be partners in 
implementing the ESA. States have extensive expertise in 
science-based wildlife management principles and the 
application of public policy. Further, States are significantly 
affected by the ESA, including their ability to maintain their 
economies and the natural resources. To highlight our 
expertise, I will describe two success stories in Wyoming.
    First, wolves. By the end of this year, the wolf population 
in Wyoming will have exceeded all recovery goals for 12 
consecutive years. By anyone's standards, that should be a 
success story. Yet today, Wyoming remains involved in 
litigation contesting the delisting of wolves. Since delisting 
in Wyoming 9 months ago, 3 separate lawsuits have been filed 
from a total of 14 organizations. Litigation has been a 
constant occurrence regarding wolves since their first 
delisting in 2008.
    To achieve our most recent delisting, Wyoming revised its 
regulatory framework. Among other features, our plan commits to 
enhanced population goals, facilitates natural dispersal, 
improves certainty in protecting wolves, and commits to genetic 
connectivity. The latter feature is unique to Wyoming's plan. 
It includes extensive genetic monitoring and commits to further 
plan revisions if State management is not achieving its goal.
    Next, the Sage Grouse Task Force. Wyoming is a leader in 
sage grouse conservation. Since 2008, our core area strategy 
established by three executive orders has twice been endorsed 
by the Service as a sound framework to avoid listing sage 
grouse. The task force is the product of a meeting co-chaired 
by Governor Mead and Secretary Salazar in 2011. It is comprised 
of Governors' representatives of the 11 sage grouse States and 
the executives of 4 Federal agencies. The task force is charged 
with developing a near-term management plan with a primary 
focus on policy.
    The task force represents a new model that is heralded by 
many as a unique approach to the conservation of a candidate 
species. The combined effort of the 11 States and 4 Federal 
agencies is impressive. When leveraged back at home with the 
contributions of industries, NGO's, and land owners, the 
combined effort is staggering. Time will tell whether it will 
be successful.
    For State and private contributors, success will be 
measured by the attainment of its goal: a not-warranted finding 
for sage grouse in 2015. States and industries need certainty 
that this model has a chance to succeed to invest so heavily in 
it. If this effort fails to achieve its goal, and sage grouse 
are listed in spite of the conservation taking place, I wonder 
if this model will be attempted again.
    In my written testimony I offer ideas on how Federal 
statutes and policies could be changed to improve the 
implementation of the ESA. I want to touch briefly on two.
    One of the most urgent needs is to make the ESA decisions 
less susceptible to litigation. Changes to the ESA and the 
Equal Access to Justice Act that reduce the financial incentive 
to litigate would make the ESA implementation more efficient 
and transparent. In Wyoming, reduced incentives to litigate 
would have improved the effectiveness of implementing the ESA 
for wolves, grizzly bears, and others. Despite these amazing 
success stories, litigation continues with no finality. These 
subjects are repeatedly litigated and filed simultaneously in 
multiple jurisdictions, making them costly to defend. 
Legislation that requires wealthy litigants to pay their own 
way would help limit litigation to cases involving species in 
jeopardy, and not ones where litigants merely disagree with the 
delisting decision.
    Last, climate change. Climate change is increasingly cited 
as a factor to list species using models to predict the effect 
of climate change on a species status. It is reasonable to 
expect that the accuracy of these models diminish the further 
into the future that they are applied. There are examples where 
species are proposed for listing, only because of predictions 
made by climate change models. In these examples, the species 
is currently robust in number and distribution, and no other 
threats affect their status. This begs the question of how far 
into the future predictive models should be applied beyond the 
listing decision, and how much consideration should be given to 
current conditions in making those decisions now.
    Is it reasonable to remove a species from State trust 
status 10, 50, or even 100 years prior to its showing the 
predicted effect of climate change? Federal policy needs to 
define foreseeable future and develop criteria to consider the 
uncertainty of climate change models. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Ferrell follows:]

      Statement of Steve Ferrell, Wildlife and Endangered Species 
            Policy Advisor, State of Wyoming, Cody, Wyoming

    Mr. Chairman, Members of the Committee, my name is Steve Ferrell. I 
am a Policy Advisor to Governor Mead in Wyoming. My primary 
responsibility is wildlife and endangered species issues. It is an 
honor to offer you my thoughts on the topic of today's hearing and 
answer your questions. I intend to focus on state led conservation 
opportunities relative to the Endangered Species Act (ESA), offer 
suggestions for improving implementation of the ESA, and report on a 
promising ongoing effort regarding the topic.
    States should be considered full and equal partners in implementing 
the ESA. Listing decisions under the ESA typically result in 
transferring the management jurisdiction for a species between state 
and federal authority. Full state involvement should be expected since 
the states either were the managers prior to the listing decision or 
will become the managers after the delisting decision. States are 
unquestionably qualified to be effective partners in the implementation 
of the ESA. States have extensive experience and expertise in science 
based wildlife management principles and the application of public 
policy in managing wildlife as a public asset. States are significantly 
affected by the ESA including their ability to develop and maintain 
their economies and natural resources. States should be afforded every 
opportunity to provide input to laws, regulations and policies in 
implementing the ESA.
    To highlight this expertise, let me briefly describe two success 
stories in Wyoming.
Wolves in Wyoming
    I am proud to say that wolves in Wyoming have exceeded their 
recovery goals for 11 consecutive years.
    Wolves were likely eradicated from the lower 48 states by 1930. In 
1974 gray wolves in the lower 48 states were listed as endangered. For 
the 50 years preceding 1986 there had been no detection of wolf 
reproduction in the U.S. portion of the Rocky Mountains. In 1986 a den 
was discovered near the Canadian border in Glacier National Park. In 
1987 the wolf recovery plan for the Northern Rocky Mountain Region 
established a recovery goal of 300 wolves and 30 breeding pairs to be 
equally allocated among the states of Wyoming, Idaho and Montana. In 
1995 and 1996 a total of 31 wolves were reintroduced to Yellowstone 
National Park. Three years later Yellowstone supported 112 wolves and 6 
packs. In 2001, just 6 years after reintroduction, the wolf population 
in the Northern Rocky Mountains exceeded recovery goals.
    By the end of 2013 the wolf population in Wyoming will have 
exceeded the numerical, distributional, and temporal recovery goals for 
12 consecutive years. By anyone's standards that should be a success 
story. Yet today Wyoming remains embroiled in litigation contesting the 
delisting of wolves. Since delisting in Wyoming nine months ago, three 
separate lawsuits have been filed by a total of 14 organizations. 
Litigation has been a constant occurrence since the first delisting 
rule in 2008. At that time the wolf population in the Northern Rockies 
exceeded the recovery goal for total numbers by more than 5 times and 
for breeding pairs by more than 3 times. Wolves have been delisted in 
Wyoming twice since 2008 and both delisting decisions have been 
challenged in court.
    In 2011 Wyoming began the process of revising its statutes, rules 
and management plan addressing wolves. Among other features our revised 
regulatory mechanisms commit to enhanced population goals, add 
protections to facilitate natural dispersal of wolves, delete features 
from previous regulations to improve certainty in protecting wolves, 
and commit to successful genetic interchange between wolf populations. 
The latter feature is unique to Wyoming's plan. It includes extensive 
genetic monitoring and commits to further plan revisions if state 
management is a factor in not meeting genetic connectivity goals. 
Wyoming's plan was twice subjected to peer review with favorable 
results. Wolves were removed from the protections of the ESA in 
September 2012.
The Sage-grouse Task Force
    Wyoming is a recognized leader in sage-grouse conservation. In 2008 
then-Governor Freudenthal issued an executive order establishing the 
core area strategy for sage-grouse conservation in the state. The U.S. 
Fish and Wildlife Service (the Service) endorsed the executive order as 
a sound framework for a policy to conserve sage-grouse populations and 
achieve the goal to preclude listing sage-grouse. In 2011 Governor Mead 
issued an updated version of the executive order which has been 
similarly endorsed by the Service.
    In December 2011 Governor Mead and then-Secretary Salazar co-hosted 
a meeting in Cheyenne among the Governors' representatives of the 11 
sage-grouse states and the executives of four federal agencies (the 
Service, the Bureau of Land Management, the Forest Service and the 
Natural Resources Conservation Service) to discuss a coordinated effort 
that might ensure sage-grouse would not require the protections of the 
ESA by 2015. The Sage-Grouse Task Force is a product of that meeting. 
Co-chaired by the Governors of Wyoming and Colorado, and the Director 
of the Bureau of Land Management (BLM), the Task Force is charged with 
developing a near-term comprehensive management plan with a primary 
focus on policy. The Task Force has served as a support group for state 
planning efforts across the species range to improve regulatory 
mechanisms. It also serves as a coordination forum for BLM and Forest 
Service sage-grouse planning efforts, and the remarkable achievements 
of the Natural Resource Conservation Service's (NRCS) Sage Grouse 
Initiative. The Task Force has investigated opportunities for 
improvement in federal fire policy, invasive species policy, and state 
and privately led conservation efforts. The group is presently 
developing a list of metrics that best quantify the conservation value 
of management efforts and a database to document those efforts.
    The Task Force represents a new model that is heralded by many as a 
unique approach to the range-wide conservation of a candidate species. 
The combined effort of the 11 sage-grouse states and four federal 
agencies with jurisdiction for sage-grouse is impressive. When these 
efforts are leveraged back at home with the contributions of 
industries, NGOs, and landowners the combined effort is staggering.
    Time will tell if the efforts will be successful. For state and 
private contributors, success will be measured by the attainment of the 
goal--a ``not warranted'' finding for sage-grouse in 2015. States and 
industry need certainty that this model has a chance at succeeding to 
invest so heavily in it. If this effort fails to achieve its goal and 
sage-grouse are listed in spite of the range-wide conservation taking 
place, I wonder if this model will be attempted again. The amount of 
time and resources invested by Wyoming and other states on species 
conservation is tremendous, but our incentive to do so is harmed by the 
uncertainty created by an outdated ESA, and repeated litigation that 
places arbitrary deadlines on listing decisions. One thing is certain, 
the federal government absolutely needs the states' active involvement 
in species conservation, but we are travelling a path that will 
eventually back states into a corner, and leave the federal government 
to fend for itself for a program that is already overwhelming.
Improving implementation of the ESA through Legislation.
    The states recognize that comprehensive reform of the ESA is not a 
likely outcome in the near future. However, that does not mean that 
implementation of the ESA cannot be improved in ways that benefit 
species and people. Some updates to the ESA itself, agency practices, 
and other related laws ought to be addressed.
    One of the most urgent needs is to make ESA-related decisions less 
susceptible to litigation. Changes to the ESA and the Equal Access to 
Justice Act would cause significant improvement in ESA implementation. 
For example, litigation appears to be a business model for some 
organizations today. Changing these laws to reduce the financial 
incentive to litigate would make the implementation of the ESA more 
efficient, and more transparent. States and other interested 
stakeholders need and deserve a seat at the table when it comes to ESA 
management. Litigation moves these decisions out of the public realm, 
and into the very private confines of a courtroom.
    In Wyoming, reduced incentives to litigate would have addressed the 
ineffectiveness of implementing the ESA for wolves, grizzly bears, and 
others. Despite the amazing recovery success story for these animals, 
litigation continues and allows no finality in managing these species. 
These subjects are repeatedly litigated and filed simultaneously in 
multiple jurisdictions making them very costly to defend.
    The most active litigants (states and non-government organizations) 
have the resources to litigate without the financial incentives caused 
by awarding attorney fees to the prevailing party. Legislation that 
requires wealthy litigants to pay their own way would help limit the 
onslaught of litigation to only the most substantive and deserving 
cases where real harm to species is shown, not ones where the litigants 
merely disagree with the decisions of the Service.
    Another example for improving ESA implementation would be requiring 
ESA litigation to be filed initially in the federal court of appeals in 
the circuit that is home to the Service's Regional Office that has 
primacy for the species in question. This would speed up litigation by 
removing the federal district courts from the process, reduce ``forum 
shopping'' by plaintiffs, and allow the decision to be made in the home 
circuit.
    Increased scrutiny of the process and outcomes of litigation and 
the suggested changes to these laws would have a positive effect on the 
implementation of the ESA.
Opportunities for Policy Revisions.
    There are several policy revisions that could improve the 
implementation of the ESA. Some of these may benefit from changes in 
the statute. Some may require new statutory authority to enable new 
policies or make them more defensible in litigation. Most would not 
require changes in statutes.
    Recovery goals. Federal policy should require the identification of 
recovery goals in final rulemaking. The recovery criteria should 
include a clear description of the required population size, population 
trend, or other relevant criteria describing recovery. States should 
play an active role in developing the recovery goals.
    Delegation of authority. Federal policy should enhance the 
delegation of authority for the management of listed species to willing 
state partners. There are several examples where states have 
voluntarily accepted this role. Shared authority could also be enhanced 
through formal agreements, which spell out a larger role for states in 
coordinating ESA implementation.
    Peer Reviews. The ESA requires that the Service base decisions on 
the best science. Yet wildlife is regarded by the states as a public 
trust asset. Accordingly, states manage species under their 
jurisdiction with broad public participation, considering socio-
economic objectives as well as the scientific principles of wildlife 
management. As such, wildlife management under state jurisdiction 
includes science and public policy. The Service has as a matter of 
policy made extensive use of scientific peer reviews in developing 
management plans. The agency's response to these reviews can create 
unrealistic consequences. The states should be equal partners in 
designing peer reviews, selecting reviewers, choosing the scope of the 
review, and formulating a response. Reviews should be broadened to 
include public policy issues as well as scientific merit. This would 
result in management decisions that balance public policy needs with 
species recovery needs.
    Define Significant Portion of the Range (SPR). It is important to 
recognize that regulatory mechanisms are the product of states and 
counties and may vary across jurisdictional boundaries. Favorable 
listing decisions, experimental, nonessential population designations 
and 4d rules have provided significant incentives for a regulatory 
jurisdiction to implement conservation measures.
    A common argument in ESA litigation is that the inadequacy of 
existing regulatory mechanisms requires a listing or relisting. Some 
court cases have held that differing degrees of protection cannot be 
based on jurisdictional boundaries. In response to these cases, in 2011 
the Service withdrew its existing policy interpreting the term 
``significant portion of the range'' and published a new draft policy. 
The new draft eliminates several important incentives for the 
conservation of listed species. Listing decisions must be determined 
based on the collective effect of regulatory mechanisms across a 
species' range. This diminishes the certainty for reward if a 
regulatory authority invests in conservation.
    The draft SPR policy requires a species to be listed as endangered 
range-wide if conditions warrant endangered status in a significant 
portion of the range. This is true even if evidence simultaneously 
supports a determination that the species is only threatened throughout 
its entire range. Consequently, the draft prevents the use of 
conservation tools commonly used to recover threatened species such as 
experimental nonessential (10j) designations and special (4d) rules 
which cannot be applied to the recovery of endangered species.
    The final policy interpreting SPR needs to preserve the rewards 
that states and counties currently realize for investing in 
conservation. Further, the final policy should not assign endangered 
status to portions of the range where the population is threatened so 
that conservation tools that are only available for managing threatened 
populations are not lost. If these provisions are not restored the 
conservation of imperiled species may be diminished.
    Climate Change and Foreseeable Future. Climate change is 
increasingly cited as a factor in deciding to list species under the 
ESA. Status reviews use models to predict the effect of climate change 
on a species' status. It is reasonable to expect that the accuracy of 
these models diminish the farther into the future that they are 
applied. There are examples where species are proposed for listing only 
because of long-term predictions made by climate change models. In 
these examples the species is currently considered robust in number and 
distribution and there are no other current threats that affect the 
species' status well into the future. Listing these species takes them 
from state trust status and places them in federal jurisdiction. This 
begs the questions of how far into the future predictive models should 
be applied beyond the listing decision, and how much consideration 
should be given to current conditions in making those decisions now? Is 
it reasonable to remove a species from state trust status 5, 10, 50 or 
100 years prior to their status showing the predicted effect of climate 
change? Federal policy needs to define ``foreseeable future'' and 
develop criteria that consider the uncertainty of climate change models 
at various times into the future.
    Thank you for the opportunity to share my thoughts on this 
important subject.
                                 ______
                                 
    The Chairman. Thank you very much, Mr. Ferrell, for your 
testimony.
    And for purposes of more of an introduction, I recognize 
the gentleman from Colorado, Mr. Tipton.
    Mr. Tipton. Thank you, Mr. Chairman. I would like to be 
able to introduce a friend of mine, Tom Jankovsky, a 
commissioner out of Garfield County in Colorado, for being here 
today to be able to testify. We could have, I guess, gotten a 
carpool and come back. We were together just a few days ago.
    I appreciate him traveling from Colorado to be able to 
provide a local perspective on the work being done to locally 
conserve and protect endangered species, and that unique 
perspective out of Garfield County.
    Tom, thank you for being here in regards to dealing with 
the sage grouse issues which are impacting the greater West.
    Thank you, Mr. Chairman, I yield back.
    The Chairman. Mr. Jankovsky, you are recognized for 5 
minutes.

  STATEMENT OF TOM JANKOVSKY, COMMISSIONER, GARFIELD COUNTY, 
                   GLENWOOD SPRINGS, COLORADO

    Mr. Jankovsky. Thank you, Mr. Chairman and honorable 
members of the Committee. I am from Garfield County, Colorado. 
And also with me today is Dr. Rob Ramey, President of Wildlife 
Science International, and a member of the Garfield County Sage 
Grouse Team. I am here to discuss why local plans are more 
effective for endangered species conservation, through our 
county's experience, with the potential listing of the Greater 
Sage Grouse and the litigious nature of the ESA.
    Garfield County worked with the BLM on the Northwest 
Colorado Sage Grouse EIS as a cooperating agency, and is one of 
nine Colorado counties that have sage grouse habitat managed by 
five local plans. In these cooperating agency meetings, we 
realize local plans are not being considered. Because we have a 
local plan, we engage the BLM in the coordination process. 
Congress set forth the coordination process through FLPMA, 
whereby the Secretary shall ``keep apprised of local plans, 
give consideration to those plans, meaningfully involve local 
governments, resolve inconsistencies, and make Federal plans 
consistent with local plans.''
    Our first two coordination meetings covered the significant 
differences between our local plan and the policies being 
directed through the BLM national technical team report. Our 
primary concern is that the policies the BLM is attempting to 
put into place do not fit our unique topography, and will fail, 
and will harm our local economy. The studies for the NTT report 
were primarily from Central Wyoming, with miles of rolling sage 
brush, while our topography and vegetation is quite unique, 
characterized by high plateaus with sage brush at the ridge 
tops, steep drops to drainages in valley floors, with a 
patchwork of sage brush, conifer, aspen, and pinyon juniper 
forests.
    The map used in the EIS covers 220,000 acres of private and 
Federal lands in our county. We questioned this map, and were 
told the mapping was not the responsibility of the BLM, but was 
provided by Colorado Parks and Wildlife, and that our plan was 
not acceptable, because it was voluntary, with no regulatory 
assurance. We met with CPW, who stated the map was prepared at 
the 50,000-foot view. And that was concerning, since this map 
is the foundation for the policies being developed in the EIS. 
We then hired Dr. Ramey and mapping experts to evaluate the 
basis of the science used in the NTT report, and for the 
creation of the CPW habitat map. We found the map was not 
reproducible. Lost my place, here.
    The net result reduced the suitable habitat from 220,000 
acres to 28,000 acres. With the refined mapping and the best-
available science, we adopted the Garfield County Greater Sage 
Grouse Conservation Plan that provides private and public land 
owners with policies that are fit to the county's unique 
landscape. The plan retains regulatory assurance by mandating 
our policies on Federal land. It places the county at the 
center of decision making through coordination. This allows all 
the different Federal, State, and local interests to come 
together through one comprehensive plan, in the spirit of 
cooperation, thereby avoiding legal conflict.
    In our third coordination meeting with the BLM, U.S. Fish 
and Wildlife Service, and CPW, we presented our plan to discuss 
and resolve inconsistencies with the NTT report. Last, we met 
with CPW to validate our habitat mapping, which revealed a high 
correlation of accuracy. The intent is to work with CPW to 
amend this CPW map that will ultimately be used in the final 
BLM EIS.
    I would like to take this opportunity to request assistance 
from this Committee. First, the Service has withheld valuable 
data that supports a warranted listing. We only wish to verify 
their data, as required under the Information Quality Act. We 
would appreciate this Committee's interceding on our behalf to 
obtain this data.
    Second, we would request that the BLM abide by FLPMA, their 
own statutes and regulations, to resolve policy conflicts at 
the local level. Then, not only would litigation be avoided, 
but solutions would be put in place that truly benefit the sage 
grouse.
    Thank you for your time and assistance in this matter, and 
I would be happy to answer any questions. Thank you.
    [The prepared statement of Mr. Jankovsky follows:]

  Statement of Tom Jankovsky, Commissioner, Garfield County, Colorado

    Thank you Mr. Chairman and members of the committee.
    My name is Tom Jankovsky, County Commissioner from Garfield County, 
Colorado. Also with me today is Dr. Rob Ramey, President of Wildlife 
Science International and a member of the Garfield County Greater Sage 
Grouse team.
    I am here to discuss why local plans are more effective for 
endangered species conservation through our County's experience with 
the potential listing of the Greater Sage Grouse and its habitat.
    Garfield County worked with the BLM on the NW Colorado Greater Sage 
Grouse Environmental Impact Statement (EIS) as a cooperating agency as 
one of nine counties that have Sage Grouse habitat managed by five 
local plans.
    In these cooperating agency meetings we realized local plans were 
not being considered. Because we have a local plan, we engaged the BLM 
in the Coordination process. Congress set forth the coordination 
process through the Federal Land Policy Management Act (FLPMA) whereby 
the Secretary of the Interior shall: keep apprised of local plans; give 
consideration to those plans; meaningfully involve local governments; 
resolve inconsistencies; and, make Federal plans consistent with local 
plans.
    Our first two Coordination meetings covered the Coordination 
process and significant differences between our local plan and the 
policies being directed through the BLM's National Technical Team (NTT) 
Report. Our primary concern is that the policies the BLM is attempting 
to put in place do not fit our unique topography and will fail, destroy 
our local economy and create the need for litigation.
    The studies for the NTT Report were primarily from central Wyoming 
with miles of rolling sage brush while our topography and vegetation is 
quite unique characterized by high plateaus with sage brush at the 
ridge tops, steep drops to drainages and valley floors, with a 
patchwork of sage brush, conifer, aspen and pinion-juniper forests. 
(See Attachment 1: Topography Differences) As a result, conservation 
measures must adapt to the unique habitat through our local plan.
    The map used in the EIS covers 220,000 acres of private and federal 
lands in our county. We questioned this map and were told that the 
mapping was not the responsibility of the BLM, but was provided by 
Colorado Parks & Wildlife (CPW) and that our plan was not acceptable 
because it was voluntary with no regulatory assurance.
    We met with CPW who stated the map was prepared at a 50,000 ft. 
view. That was concerning since the map is the foundation for the 
policies being developed in the EIS.
    We then hired Dr. Ramey and mapping experts to evaluate the basis 
of the science used in the NTT Report and for the creation of the CPW 
habitat map. We found the map was based on very coarse vegetation data, 
a subjective occupied range map, and a four-mile lek buffer that 
assumes large expanses of intact habitat.
    Ultimately, this map was not reproducible. So we prepared our own 
map based on CPW criteria and highly accurate vegetation data. The net 
result reduced suitable habitat from 220,000 acres to 28,000 acres. 
(See Attachment 2: Suitable Habitat Mapping Differences)
    With the refined mapping and best available science, we adopted the 
Garfield County GSG Conservation Plan that provides private and public 
land owners with land management principles, policies and BMPs that are 
tailor-fit to the County's unique landscape and habitat 
characteristics.
    This plan retains regulatory assurance by mandating our policies on 
federal land. It is designed with an adaptive management approach and 
places the County at the center of decision making through 
Coordination. (See Attachment 3: Coordination Diagram) This allows all 
of the different federal, state and local interests to come together 
through one comprehensive plan in the spirit of cooperation thereby 
avoiding legal conflict. It is critical that agency plans be consistent 
with local plans.
    In our third Coordination meeting with the BLM, U.S. Fish & 
Wildlife Service (the Service), and CPW, we presented our plan to 
specifically discuss and resolve inconsistencies with the NTT Report. 
Lastly, we met with CPW to validate our habitat mapping which revealed 
a high correlation of accuracy. The intent is to work with CPW to amend 
the CPW map that will ultimately be used in the final BLM EIS.
    Garfield County supports the Secretary's specific direction to the 
BLM that requires them to address ``local ecological site variability'' 
for regional/sub-regional plans. (See Attachment 4: Instructional 
memorandum 2012-044) Additionally, FLPMA requires the BLM to coordinate 
their efforts with local plans.
    I would like to take this opportunity to request assistance from 
this Committee. First, the Service has withheld valuable data that 
supports a warranted listing. We only wish to verify their data as 
required under the Information Quality Act. We would appreciate this 
Committee's interceding on our behalf to obtain this data as soon as 
possible.
    Second, we ask that you direct the Secretary of Interior to 
coordinate fully with local governments to ensure consistency between 
local and federal plans, more specifically local sage-grouse plans. 
Finally, we simply request the BLM abide by FLPMA and their own 
statutes and regulations to resolve policy conflicts at the local 
level. Then, not only would litigation be avoided, but solutions would 
be put in place that truly benefit the sage-grouse.
    Thank you for your time and assistance in this matter. We 
appreciate this opportunity and would be more than happy to answer any 
questions this Committee may have.


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


   Attachment 4: BLM Instructional Memorandum 2012-044
                united states department of the interior
                       bureau of land management
                         washington, d.c. 20240
                          http://www.blm.gov/
                           December 27, 2011

In Reply Refer To:
1110 (230/300) P
EMS TRANSMISSION 12/27/2011
Instruction Memorandum No. 2012-044 Expires: 09/30/2013

To: All Field Officials
From: Director
Subject: BLM National Greater Sage-Grouse Land Use Planning Strategy
Program Areas: All Programs.

    Purpose: This Instruction Memorandum (IM) provides direction to the 
Bureau of Land Management (BLM) for considering Greater Sage-Grouse 
conservation measures identified in the Sage-Grouse National Technical 
Team's--A Report on National Greater Sage-Grouse Conservation Measures 
(Attachment 1) during the land use planning process that is now 
underway in accordance with the 2011 National Greater Sage-Grouse 
Planning Strategy (Attachment 2).
    This IM supplements direction for Greater Sage-Grouse contained in 
WO IM No. 2010-071 (Gunnison and Greater Sage-Grouse Management 
Guidelines for Energy Development), the BLM's 2004 National Sage-Grouse 
Habitat Conservation Strategy and is a component of the 2011 National 
Greater Sage-Grouse Planning Strategy (Attachment 2). It is also 
consistent with WO IM No. 2011-138 (Sage-Grouse Conservation Related to 
Wildland Fire and Fuels Management).
    In March 2010, the U.S. Fish and Wildlife Service (FWS) published 
its decision on the petition to list the Greater Sage-Grouse as 
``Warranted but Precluded.'' 75 Fed. Reg. 13910 (March 23, 2010). Over 
50 percent of the Greater Sage-Grouse habitat is located on BLM-managed 
lands. In its ``warranted but precluded'' listing decision, FWS 
concluded that existing regulatory mechanisms, defined as `specific 
direction regarding sage-grouse habitat, conservation, or management' 
in the BLM's Land Use Plans (LUPs), were inadequate to protect the 
species. The FWS is scheduled to make a new listing decision in Fiscal 
Year (FY) 2015.
    The BLM has 68 land use planning units which contain Greater Sage-
Grouse habitat. Based on the identified threats to the Greater Sage-
Grouse and the FWS timeline for making a listing decision on this 
species, the BLM needs to incorporate explicit objectives and desired 
habitat conditions, management actions, and area-wide use restrictions 
into LUPs by the end of FY 2014. The BLM's objective is to conserve 
sage-grouse and its habitat and potentially avoid an ESA listing.
    In August 2011, the BLM convened the Sage-Grouse National Technical 
Team (NTT), which brought together resource specialists and scientists 
from the BLM, State Fish and Wildlife Agencies, the FWS, the Natural 
Resources Conservation Service (NRCS), and the U.S. Geological Survey 
(USGS). The NTT met in Denver, Colorado in August and September 2011, 
and in Phoenix, Arizona in December 2011, and developed a series of 
science-based conservation measures to be considered and analyzed 
through the land use planning process. This IM provides direction to 
the BLM on how to consider these conservation measures in the land use 
planning process.
    In order to be effective in our ability to conserve Greater Sage-
Grouse and their habitat, the BLM will continue to work with its 
partners including: the Western Association of Fish and Wildlife 
Agencies (WAFWA), FWS, USGS, NRCS, U.S. Forest Service (USFS), and Farm 
Services Agency (FSA) within the framework of the Sagebrush Memorandum 
of Understanding (2008) and the Greater Sage-Grouse Comprehensive 
Conservation Strategy (2006).
    Policy/Action: The BLM must consider all applicable conservation 
measures when revising or amending its RMPs in Greater Sage Grouse 
habitat. The conservation measures developed by the NTT and contained 
in Attachment 1 must be considered and analyzed, as appropriate, 
through the land use planning process by all BLM State and Field 
Offices that contain occupied Greater Sage-Grouse habitat. While these 
conservation measures are range-wide in scale, it is expected that at 
the regional and sub-regional planning scales there may be some 
adjustments of these conservation measures in order to address local 
ecological site variability. Regardless, these conservation measures 
must be subjected to a hard look analysis as part of the planning and 
NEPA processes.
    This means that a reasonable range of conservation measures must be 
considered in the land use planning alternatives. As appropriate, the 
conservation measures must be considered and incorporated into at least 
one alternative in the land use planning process. Records of Decision 
(ROD) are expected to be completed for all such plans by the end of FY 
2014. This is necessary to ensure the BLM has adequate regulatory 
mechanisms in its land use plans for consideration by FWS as part of 
its anticipated 2015 listing decision.
    When considering the conservation measures in Attachment 1 through 
the land use planning process, BLM offices should ensure that 
implementation of any of the measures is consistent with applicable 
statute and regulation. Where inconsistencies arise, BLM offices should 
consider the conservation measure(s) to the fullest extent consistent 
with such statute and regulation.
    The NTT-developed conservation measures were derived from goals and 
objectives developed by the NTT and included in Attachment 1. These 
goals and objectives are a guiding philosophy that should inform the 
goals and objectives developed for individual land use plans. However, 
it is anticipated that individual plans may develop goals and 
objectives that differ and are specific to individual planning areas.
    Through the land use planning process, the BLM will refine 
Preliminary Priority Habitat and Preliminary General Habitat data 
(defined below) to: (1) identify Priority Habitat and analyze actions 
within Priority Habitat Areas to conserve Greater Sage-Grouse habitat 
functionality, or where possible, improve habitat functionality, and 
(2) identify General Habitat Areas and analyze actions within General 
Habitat Areas that provide for major life history function (e.g., 
breeding, migration, or winter survival) in order to maintain genetic 
diversity needed for sustainable Greater Sage-Grouse populations. Any 
adjustments to the NTT recommended conservation measures at the local 
level are still expected to meet the criteria for Priority and General 
Habitat Areas.
    Preliminary Priority Habitat (PPH): Areas that have been identified 
as having the highest conservation value to maintaining sustainable 
Greater Sage-Grouse populations. These areas would include breeding, 
late brood-rearing, and winter concentration areas. These areas have 
been/are being identified by the BLM in coordination with respective 
state wildlife agencies.
    Preliminary General Habitat (PGH): Areas of occupied seasonal or 
year-round habitat outside of priority habitat. These areas have been/
are being identified by the BLM in coordination with respective state 
wildlife agencies.
    PPH and PGH data and maps have been/are being developed by the BLM 
through a collaborative effort between the BLM and the respective state 
wildlife agency, and are stored at the National Operations Center 
(NOC). These science-based maps were developed using the best available 
data and may change as new information becomes available. Such changes 
would be science-based and coordinated with the state wildlife agencies 
so that the resulting delimitation of PPH and PGH provides for 
sustainable populations. In those instances where the BLM State Offices 
have not completed this delineation, the Breeding Bird Density maps 
developed by Doherty 2010[1] As LUPs are amended or revised, the BLM 
State Offices will be responsible for coordinating with the NOC to use 
the newest delineation of PPH and PGH. To access the PPH and PGH data, 
please use the following link: //blm/dfs/loc/EGIS/OC/Wildlife/
Transfers/GREATER_SAGE_GROUSE_GIS_DATA. will be used. The NOC will 
establish the process for updating files to include the latest PPH and 
PGH delineations for each state. This information will assist in 
applying the conservation measures identified in Attachment 1 below.
    Timeframe: This IM is effective immediately and will remain in 
effect until LUPs are revised or amended by the end of FY 2014.
    Budget Impact: This IM will result in additional costs for 
coordination, NEPA review, planning, implementation, and monitoring.
    Background: Following a full status review in 2005, the FWS 
determined that the Greater Sage Grouse was ``not warranted'' for 
protection. Decision documents in support of that determination noted 
the need to continue and/or expand all efforts to conserve sage-grouse 
and their habitats. As a result of litigation challenging the 2005 
determination, the FWS revisited the determination and concluded in 
March 2010 that the listing of the Greater Sage-Grouse is warranted but 
precluded by higher priority listing actions.
    In November 2004, the BLM published the National Sage-Grouse 
Habitat Conservation Strategy. The BLM National Strategy emphasizes 
partnerships in conserving Greater Sage-Grouse habitat through 
consultation, cooperation, and communication with WAFWA, FWS, NRCS, 
USFS, USGS, state fish and wildlife agencies, local sage-grouse working 
groups, and various other public and private partners. In addition, the 
Strategy set goals and objectives, assembled guidance and resource 
materials, and provided comprehensive management direction for the 
BLM's contributions to the ongoing multi-state sage-grouse conservation 
effort.
    In July 2011, the BLM announced its National Greater Sage-Grouse 
Planning Strategy (Attachment 2). The goal of the Strategy and this IM 
is to review existing regulatory mechanisms and to implement new or 
revised regulatory mechanisms through the land use planning process to 
conserve and restore the Greater Sage-Grouse and their habitat. The 
Gunnison Sage-Grouse, bi-state population in California and Nevada and 
the Washington State distinct population segments of the Greater Sage-
Grouse will be addressed through other policies and planning efforts.
Manual/Handbook Sections Affected: None.
    Coordination: This IM was coordinated with the office of National 
Landscape Conservation System and Community Partnership (WO-170), 
Assistant Director, Renewable Resources and Planning, (WO-200), 
Minerals and Realty Management (WO-300), Fire and Aviation (WO-400), 
BLM State Offices, FWS and state fish and wildlife agencies.
    Contact: State Directors may direct questions or concerns to Edwin 
Roberson, Assistant Director, Renewable Resources and Planning (WO-200) 
at 202-208-4896 or [email protected]; and Michael D. Nedd, 
Assistant Director, Minerals and Realty Management (WO-300) at 202-208-
4201 or [email protected].
    Signed by: Authenticated by:
    Mike Pool Ambyr Fowler
    Acting, Director Division of IRM Governance, WO-560
    Attachment 5: Key differences that make the Garfield County Greater 
Sage Grouse Plan a more effective conservation tool than those proposed 
by federal agencies.
High-resolution habitat mapping
    The habitat mapping provided by State and Federal agencies in 2012 
for Greater Sage-Grouse in the Plan Area was at a landscape level that 
did not accurately address the unique topography of the Roan Plateau, 
or provide planning information at resolution accurate enough for 
County to use in the Plan, and for relevant land-use planning 
activities potentially occurring within the Plan area, including 
protection of sage grouse habitat. Because of the significant 
implications on land use and ongoing land management, the Board of 
County Commissioners deemed that most accurate delineation of habitat 
was deemed necessary. This habitat mapping process followed the latest 
and most relevant peer-reviewed habitat mapping process available for 
mapping large and diverse areas, using the highest resolution data 
available (with a two-meter resolution, as compared to the one 
kilometer, landscape-level resolution used by the agencies).
    The sage-grouse habitat in Garfield County is naturally fragmented, 
as a result of topography and the patchy nature of sagebrush, non-
sagebrush shrubs, meadows, aspen, and conifers in the Plan area. 
Expanses of contiguous sagebrush, necessary to support a large stable 
population (as described by the Fish and Wildlife Service in their 2010 
candidate determination notice), do not exist in Garfield County. 
Additionally, the sage-grouse population inhabiting Garfield County is 
a peripheral population located on the far southeastern edge of the 
species range. As a result, the stewardship of the population requires 
detailed knowledge of local conditions, including accurate mapping of 
its habitat.
Conservation measures are tailored to local circumstances
    Rather than rely on one-size-fits-all regulatory prescriptions, 
such as four mile buffers and three percent anthropogenic disturbance 
thresholds proposed by the BLM's National Technical Team (NTT), the 
County has taken a more effective approach: tailoring conservation 
measures to address specific threats to sage grouse and local 
circumstances that are unique to Garfield County (i.e. predation and a 
naturally fragmented habitat). The significance of this strategy to 
sage grouse conservation is that it allows for a more efficient 
allocation of conservation effort by focusing on threats that matter 
most in this sage grouse population.
Voluntary conservation efforts on private land
    In contrast to the NTT report, where the proposed conservation 
measures assume that private land management is inferior to federal 
land management, and requires a regulatory ``command and control'' 
approach, the Garfield County Plan recognizes and builds upon the 
importance of voluntary conservation by private landowners. The 
importance of voluntary conservation on private land is recognized by 
many scholars of the Endangered Species Act, including the current 
Deputy Assistant Secretary of Fish and Wildlife and Parks, Michael 
Bean, who has authored multiple papers on the subject.
Annual Review and adaptive management
    Recognizing that local governments can be more nimble than federal 
agencies, the Garfield County Plan includes a required annual 
coordination review with the federal and state agencies that have 
habitat or species responsibilities within the Plan Area. (A review may 
also be initiated based on important new information.) This review 
process will evaluate the availability and condition of habitats, 
direct and indirect impacts, conservation measures, policies and best 
management practices being implemented by each agency for their 
effectiveness and applicability to the Plan Area. Also incorporated in 
this coordination review is any new scientific information and, if 
warranted, modifications to the best management practices, policies, 
and conservation incentives within the Plan. The County will also 
initiate meetings with private property owners in the Plan Area for the 
purpose of analyzing their conservation efforts and effectiveness, as 
well as any new scientific data. The annual coordination review will 
ensure that Plan updates are timely, adaptive, and based on the best 
available scientific and commercial data.
Consistency with the Information Quality Act
    The Garfield County Plan ensures that sage-grouse habitat 
management decisions shall be made based on the best available 
scientific information that is applicable to sage-grouse habitat in 
Garfield County. The scientific information used will be consistent 
with standards of the Information Quality Act (Quality, Objectivity, 
Utility and Integrity), as determined by the County. In contrast to the 
interpretation of the Act by some federal agencies, this means that the 
data collected by state and federal agencies, or used in published 
scientific research relied upon by those agencies, must be provided to 
the County.
    The Garfield County Plan acknowledges that many of the purported 
``universal'' negative impacts of fluid mineral development, an 
important economic activity on the Roan Plateau and Piceance Basin, are 
based upon outdated information and/or overstated. In fact, none of the 
studies cited in the NTT report can definitively point to an actual 
population decline rather than temporary displacement of sage grouse 
from areas immediately affected by current fluid mineral development. 
Instead, the extraction of fluid minerals in Garfield County (and 
increasingly elsewhere) is accomplished using increasingly advanced 
technologies, more efficient operations, avoidance of important 
habitat, more effective mitigation measures, and interim habitat 
restoration, than in the past. As a result, surface disturbances that 
potentially affect sage grouse tend to be minimal and temporary in 
nature. The fast pace of these technological developments and more 
efficient operations has meant that the primary literature on the 
impacts of fluid mineral extraction on sage grouse in Wyoming is 
inconsistent with current practices used in Garfield County. It is 
anticipated that the more advanced technologies under development will 
continue to allow the efficient extraction of resources while further 
avoiding or minimizing impacts to sage grouse and other species.
    A balance of harms approach ensures responsible stewardship of 
natural and human resources in Garfield County
    In contrast to the approach proposed in the NTT report, that 
focuses solely on the welfare of sage grouse, the Garfield County Plan 
requires that the balance of impacts to other species and to human 
welfare must be weighed prior to approval and implementation.
                                 ______
                                 
    The Chairman. Thank you very much, Commissioner Jankovsky, 
for your testimony. And I just want to note for the record 
that--and I want to thank all of you for your testimony. But, 
for the record, I did not hear anybody testify that they wanted 
to see a species go extinct. I think that ought to be well 
said. I think the issue that we are looking at is how best to 
preserve species.
    I will recognize myself for 5 minutes.
    And, Chairman Brigham, thank you very much for your 
testimony, and for that impressive showing of how hatchery fish 
work. However, in your testimony you point out that in Section 
3 of the ESA, ESA specifically authorizes propagation as a 
means to conserve species. That is specifically in the Act. Yet 
there are some Federal bureaucrats and litigious groups that 
oppose any use of hatcheries. And you reference that in your 
testimony--and thank you for that.
    But what I want you to do specifically is to respond to the 
claim that I have heard, and I know you have heard, that 
hatchery fish are inferior, specifically in the Columbia and 
Snake River Basins. Could you respond to that?
    Ms. Brigham. Well, thank you, Mr. Chairman. I think, you 
know, hatcheries are supposed to be there to mitigate for lost 
fish. And when we have raised the hatcheries in a way to put 
the fish back, they are not inferior. They are rebuilding the 
natural spawning stocks. And I will give you one example.
    In the late eighties or nineties we were putting fish back 
into the Umatilla River. And at that point in time we were 
doing a number of things at the same time. We were putting fish 
back into the Umatilla River, but we didn't have enough water 
to attract the stocks back into the Umatilla River. And so, 
these stocks went all the way up to the Snake River. And it was 
always amazing to me that NOAA said--and Washington, basically, 
said--that these fish were inferior. And if these fish were 
inferior, I wondered why they traveled 200 miles further than 
they needed to go? So----
    The Chairman. Thank you. You know, I am very much aware of 
when the Umatilla River was way down, and the difference of 
going up the Umatilla River and the Snake River is--it is eons 
difference. I agree with that.
    Because of my time, Mr. Powell, I want to ask you a 
question. In the appendix of your testimony, you say that there 
were more than three dozen species that were part of this large 
settlement. Did Interior consult with your State before 
agreeing to this settlement with these groups?
    Mr. Powell. The Department of the Interior failed to go 
through and consult with neither our office, the State, nor our 
Department of Wildlife Conservation.
    The Chairman. Because of that, how will this affect some of 
your other programs that you have in place, as far as this is 
concerned?
    Mr. Powell. Thank you, Mr. Chairman. Because of the 
timeframes that are set out as part of the master settlement, 
there is no giving resources. So we will have multiple 
instances of species coming up at the same time, and other 
times we will have lulls. So it is hard for us to allocate 
resources, both from a biological standpoint and from a policy 
standpoint, to go be able to deal with these individual 
situations.
    The Chairman. Good. Dr. Noss and Mr. Parenteau, I know that 
conservation biologists--and both of you identified yourselves 
as that--tend to oppose hatcheries to conserve species. Do you 
support any hatchery programs at all, Dr. Noss?
    Dr. Noss. In my case, I do, actually. I think conservation 
is so complex that we need all the tools in the toolbox. And in 
certain cases, hatcheries can be important in helping to 
restock depleted fisheries.
    Now, the important thing to recognize--and it is--the paper 
that Ms. Brigham brought up, I would like to call your 
attention to this--the important thing to recognize is that 
most studies of hatchery fish have found them inferior in their 
productivity in the wild.
    The Chairman. Well, but Dr. Noss, I am asking if you 
support hatchery fish. Now, I know that there is--there may be 
a disagreement on that, but I think Ms. Brigham pointed out 
very well in this instance that is contrary.
    Mr. Parenteau, I want you to respond to that.
    Mr. Parenteau. I think captive breeding is a key tool, and 
I----
    The Chairman. Is a key tool?
    Mr. Parenteau. Key tool. And it was very instrumental in 
bringing back the condor, the whooping crane, the black-footed 
ferret. It absolutely has a place to play in the arsenal of 
tools that we have. But Dr. Noss, being the scientist, would 
also be quick to point out it is all about the details: which 
species, under what circumstances, what is the risk of capture 
and propagation in one case, what is the risk of hatchery out-
competing wild fish in another case. Each site-specific 
analysis, based on sound science, but it is definitely a tool 
that needs to be looked at.
    The Chairman. Well, let me just make this observation. The 
first hatcheries on the Columbia and Snake River systems go way 
back to the early 1900s. There were no records kept. And so, we 
don't know--if the life cycle of a salmon is roughly 5 years, 
which would be, then, well over 20 generations, we have no idea 
if hatchery fish and wild fish went together. We just have no 
records of that at all.
    And then a final point I would make is prior to the 
Endangered Species Act being implemented, now 40 years ago, the 
buffalo was going extinct. The buffalo is not extinct. I would 
just suggest to you that the buffalo is a hatchery product. 
That is why we have so many buffalo.
    With that, I will recognize Ms. Bordallo.
    Ms. Bordallo. Thank you, Mr. Chairman. Mr. Parenteau, in 
your testimony you pointed out flaws in a recent U.S. Chamber 
of Commerce report on so-called sue-and-settle tactics. Can you 
discuss briefly how the claims of government agencies giving up 
their authority in settlements creating new obligations outside 
the law are inaccurate?
    Mr. Parenteau. The only way that these cases are settled is 
by means of a consent decree. Consent decrees have to be 
approved by--judges will not approve a consent decree unless it 
is in the public interest and fully compliant with all of the 
rules and all laws, including the requirement that agencies go 
through rulemaking with public notice and comment and full 
transparency.
    The allegation that these are secret deals that bind the 
agency and substantive decisions is factually and legally 
wrong. Absolutely, uncategorically wrong. That does not happen 
in the American judicial system. I have been involved in 
negotiating these agreements, I have been involved in watching 
courts review these agreements.
    There was a recent ninth circuit decision in a case in 
which the ninth circuit threw out the consent decree because it 
didn't ensure that all of the proper rulemaking procedures 
would be followed, that the public would be given an 
opportunity to comment on this. The suggestion that our courts 
are there to rubber-stamp collusive agreements is insulting to 
our judiciary. They do not do that, Madam.
    Ms. Bordallo. Thank you. Thank you, Doctor. Another 
question for you. The Majority argues that litigation that 
seeks compliance with the Endangered Species Act impedes 
recovery. Now, can you explain how litigation can ultimately 
lead to collaborative species recovery?
    Mr. Parenteau. Unless the species is listed, there is no 
recovery. So the first step in the process is if the date by 
which listing is to have occurred has passed--and in some cases 
it has passed by years, not just months, but many, many years 
have passed beyond which decisions about listing should have 
been made--this mega-listing case that people are talking 
about, this CBD case and the other WildEarth Guardians case, 
those are schedules. They make no substantive decisions 
whatsoever. Those are timetables to make decisions. Unless 
those decisions are made, the recovery process cannot even 
begin.
    Understand something, the Endangered Species Act itself 
does not mandate recovery. That is a fundamental flaw in the 
statute. There is no mandate for recovery in the statute. There 
is no timetable for recovery in the statute. There is no 
dedicated fund for recovery in the statute. There is no 
mechanism in the statute by which recovery is to occur by any 
specific date. That is a fundamental flaw in the statute.
    Ms. Bordallo. Thank you. Dr. Noss.
    Dr. Noss. Yes?
    Ms. Bordallo. This Committee's majority believes the ESA is 
a failure because many listed species have not recovered to the 
point that they can be removed from the list. Given increased 
pressures facing species, is that an accurate measure of the 
Act's success? If you could, just briefly answer that.
    Dr. Noss. I don't believe it is an accurate measure, 
because, as I noted in my testimony, the threats that led to 
those species being listed have not abated and they have only 
worsened. The greatest ultimate threat to the survival of a 
species is human population growth.
    When the Endangered Species Act was passed in 1973, we had 
212 million people in the United States. Today we have 315 
million people. OK? So human population has been increased by a 
third. And, depending on what happens with immigration reform, 
some people are estimating up to 600 million people within the 
next few decades in the United States. This is going to put 
extreme pressures--already is putting extreme pressures--on 
species. It is amazing to me that any species at all have 
recovered, given these pressures.
    Now, human population growth, the ultimate threat. But that 
leads directly, then, to the leading proximate threat, which, 
as Mr. Parenteau pointed out, is habitat loss and modification. 
And that is why we are seeing this continuing trend.
    Ms. Bordallo. Doctor, I have another question for you, my 
last question here. Dr. Parenteau mentions in his testimony 
that we are in the midst of a sixth great global extinction 
brought on by human activity. Now, can you describe why the ESA 
is of such great importance to balancing economic activity with 
the ecosystems that sustain human life?
    Dr. Noss. That is a huge question. The ESA is simply one 
reminder that we have to take care of the environment while 
pursuing economic health. And economic health and economic 
growth are not necessarily equivalent. And it is curious that 
only since the mid-20th century have those two been found to be 
equivalent through using a GDP, for example, to measure 
economic health.
    But the ESA does not stop economic activity. It simply 
guides economic activity toward those sectors that are greener, 
that do least harm in their activities.
    Ms. Bordallo. Thank you very much, and I yield back.
    The Chairman. Will the gentlelady yield to me real quickly?
    Mr. Parenteau, if you said that the ESA does not call for 
the recovery of species, why do environmental groups not want 
to reauthorize the Endangered Species Act, if that fundamental 
part is not part of ESA?
    Mr. Parenteau. I think a lot of environmental groups would 
like to see the Endangered Species Act reauthorized. As Dr. 
Noss pointed out, the process takes too long. By the time----
    The Chairman. Wait, wait, wait, wait. Now, what process 
takes too long?
    Mr. Parenteau. The entire process: the listing process, 
critical habitat, recovery, the whole process.
    The Chairman. OK. I am way over my time, but you made that 
statement and yet I hear constantly that environmental groups 
do not want to come to the table and discuss what needs to be 
updated in the Endangered Species Act.
    Mr. Parenteau. I think they do. I think they do.
    The Chairman. Well, I would welcome them----
    Mr. Parenteau. All of them.
    The Chairman. I would welcome them to certainly tell this 
Committee that they would like to do that. Because I hear, 
frankly, the contrary to that. I welcome your statement, I 
really do. But I wish you would communicate with your brethren 
out there that opposes that, so we can have a discussion on 
this.
    And I am way over my time on that. I would now like to 
recognize Mr. Mullin from Oklahoma.
    Mr. Mullin. Thank you, Mr. Chairman. Mr. Powell, thanks 
again for coming before this Committee today, and thank you for 
your service to our great State of Oklahoma.
    Can you tell me what role you play if a listing is done and 
finalized at the Federal level by the Fish and Wildlife Service 
on the Lesser Prairie Chicken and American--what I call the 
dung beetle, because around my part of the country you can kick 
over any pile of whatever, you can find these dung beetles. And 
what concerns do you have if your role is diminished going 
forward on this species recovery?
    Mr. Powell. What we worry about from a State standpoint is 
the State really has no purpose once a listing is done. The 
Federal Government comes in, takes over all coordination of the 
species. The State can serve as just a general commenter, just 
like any other individual, but that is probably not enough when 
we have a--at least in Oklahoma, our Department of Wildlife 
Conservation has a constitutional duty to oversee fish and game 
and wildlife in the State, and make sure that the resources of 
the State are protected.
    Mr. Mullin. What resources do the State's wildlife agencies 
possess that the fish and wildlife services don't?
    Mr. Powell. Probably the biggest resource, Congressman, as 
you know, is just the trust, the relationships. Most Oklahomans 
like getting out and recreating. They like hunting, they like 
fishing. They have relationships with their game wardens. They 
have relationships with their biologists. They have 
relationships with individuals who are working to go through 
and help what they want to do. That's lost. The Federal 
Government is not out there. They are not out there in the 
fields. They are not out there working with Oklahomans to go 
through and try to go through and figure out how we can improve 
habitat, how we can improve species. That is the biggest issue 
that is lost.
    Mr. Mullin. You know, and just being from Oklahoma, 
obviously, relationship is everything. I mean I bring this 
point up all the time, that there isn't anybody that wants to 
take care of our land better than we do. My children are the 
fourth generation on the land that I grew up on. And we want 
our wildlife to be there. We want things to be there. But we 
want to have a working partner. And every time, it seems like, 
that we allow some agency to get involved, that doesn't have 
the relationship, that doesn't have the personal connection to 
our land, it just seems like they take common sense and throw 
it completely out the window, and they start enforcing things 
that don't seem to fit.
    One size doesn't fit all. If we can allow the States to sit 
back and do their job--now, if the States aren't taking care of 
it, fine. There is a role there. There is a constitutional role 
there. But if the States are taking care of it, and we are 
seeing that the numbers are improving, we are seeing that we 
are doing our due diligence to do what we can, then the Federal 
Government should stay out of our business. And I think that is 
basically what you are saying. I am adding a little bit more to 
it.
    But anyways, Mr. Powell, it is my understanding that the 
State officials have repeatedly asked the Fish and Wildlife 
Service to explain why the Service drastically changed the 
Lesser Prairie Chicken listing from a priority number of eight 
down to two. And is that correct?
    Mr. Powell. That is correct.
    Mr. Mullin. Have you got any feedback? Have you been told 
why? I mean considering that our numbers have been swinging 
back up, have we got any explanation from them?
    Mr. Powell. We did ask that question, and I believe that 
there has also been a number of congressional letters that have 
asked that question. The response that is received back from 
the Fish and Wildlife Service essentially said that there 
continue to be threats to the habitat.
    Mr. Mullin. Have they been out there with you? Have you 
been in contact with them? Have they been out there and looked 
at it themselves?
    Mr. Powell. We have been in fairly regular contact with the 
Fish and Wildlife Service, but they have failed to specify 
exactly what the threats are, and what exactly could be done, 
where States look for a creative solution to go through and try 
to solve these problems.
    Mr. Mullin. So, just so I am not confused on this, you 
haven't gone out in the field with him. They haven't worked 
with you on this. This is just something they came up with 
themselves and said they were going to list it, drop it from 
eight to two, which is a huge drop.
    Mr. Powell. It is a huge drop. It takes us from a position 
that historically the Service might not have gotten to, to 
essentially the next in line.
    The Service has gone through at some point, I am sure, at a 
biologist and at a low staff level been out in the field. But 
most of the people who are making the key decisions have not 
been out in the fields with our biologists, with our Department 
of Wildlife personnel.
    Mr. Mullin. Last question is what is the state in the 
industry--you guys are working together. What have you done 
that benefits the Lesser Prairie Chicken?
    Mr. Powell. Probably the biggest thing that has happened is 
when the wind energy industry was beginning in Oklahoma in the 
early 2000's, our State's largest utility, Oklahoma Gas and 
Electric Company, came to the State and said, ``We want to go 
through and proactively protect the Lesser Prairie Chicken and 
other species that these wind farms, that these transmission 
lines may go through and harm.''
    OG&E, just out of the generosity of their heart, went 
through and provided $9 million as offset to be used for land 
acquisition for additional research to go through and be used 
for habitat conservation, to go through and be used for other 
purposes, all to help protect the Lesser Prairie Chicken. That 
was no mandate of the State, that was no mandate of the Federal 
Government.
    Mr. Mullin. That was just industry and the State working 
together?
    Mr. Powell. Yes.
    Mr. Mullin. Mr. Powell, thank you. Mr. Chairman, I will 
yield back.
    The Chairman. I thank the gentleman. The Chair recognizes 
the gentleman from California, Mr. Huffman.
    Mr. Huffman. Thank you very much, Mr. Chair. Thank you for 
this hearing, and thank you especially for the spirit of your 
statement earlier that this is focusing on strategies to save 
and avoid extinction and bring about recovery, rather than 
whether we should do these things.
    And in that regard, I wanted to devote my time to this 
distinction between extinction avoidance and recovery that a 
couple of the witnesses, at least, have talked about. We have 
lots of cases in California where years have been spent and 
millions and millions of dollars wrangling around biological 
opinions and take issues. But we also have some success stories 
where people in State and local government have partnered with 
their Federal Government partners on recovery plans.
    And so, I wondered if the two witnesses--the scientist and 
the environmental attorney who have spoken to this issue a 
little bit--could speak to some of the tools that are available 
under the Endangered Species Act to bring in State government 
partners, local government partners, even private land owners, 
with a bigger, longer-term recovery strategy in mind.
    Dr. Noss. OK. I will begin. You know, the main, primary 
question of this hearing really surprises me, to some extent. 
Because I think this perceived conflict between the Federal 
Government and its activities and the States and the Tribes and 
the local governments on the other hand is being blown out of 
proportion, and may even be a red herring. Because everywhere I 
have worked in my 40-year career I have seen, generally, really 
good cooperation between the Federal agencies and State, 
tribal, and local agencies.
    I have worked in Ohio, Oregon, California, and now most of 
my career recently in Florida. And in all those cases there are 
Section 6 cooperative agreements in place that on, literally, a 
daily basis, the Federal and the State biologists sit down and 
work on species recovery. They don't work on listing plans 
together; the States usually have their separate listing 
process. And, you know, California's Endangered Species Act is 
stronger than the Federal Endangered Species Act.
    But they work together on things like habitat conservation 
plans under Section 10(a) of the Endangered Species Act. And 
California, again, has a stronger law: the Natural Communities 
Conservation Act. And I have worked on 15 of those. I was on a 
panel appointed by Governor Wilson back in the early 1990s. And 
these things work.
    I mean it has always been very productive, and I have been 
pleased to see that cooperation between Federal and State.
    Mr. Huffman. Can you speak perhaps to the greater certainty 
and regulatory assurance that you can get? Because economic 
disruption has been brought up when we get into critical 
habitat designations and things like that. But I often hear 
from people who have entered into these HCPs and NCCPs in 
California that what they get in return--it is a lot of work, 
and it is a lot of collaboration, but what they get in return 
is much greater economic certainty than----
    Dr. Noss. Exactly.
    Mr. Huffman [continuing]. Sort of fighting over take 
permits.
    Dr. Noss. It has been called one-stop-shopping by a lot of 
large land owners. They can get an HCP, NCCP, and take care of 
all of their permitting needs for, say, 50 years, rather than 
to have to come back to the table for every endangered species 
individually, and develop a new plan. So it has worked.
    I would like to turn over, if you don't mind, to Mr. 
Parenteau----
    Mr. Huffman. Yes, please.
    Dr. Noss [continuing]. Because he has, I am sure, a lot 
more to say about that issue.
    Mr. Parenteau. Well, you know, the model for the habitat 
conservation planning program of the Nation was started in San 
Bruno with the San Bruno Blue Butterfly, and that is the model 
that we have all followed. There are now 30 million acres under 
habitat conservation plans across the country.
    In some States like South Carolina--the entire State has a 
State-wide habitat conservation plan for the Red Cockaded 
Woodpecker. In Michigan they have one for Kirtlands Warbler. 
So, those are a couple of the mechanisms that are there.
    I think where the real tensions come are the hard cases, 
like the Delta Smelt. I mean that is a tough case, because you 
are talking about a--I don't have to tell you--the massive 
agricultural industry dependant on water, and a tiny fish 
representative of an entire estuarine ecosystem also dependant 
on water. That is a tough conflict. That is not going to get 
resolved very easily. And so we shouldn't be surprised if there 
is tension and conflict and litigation over that. That just 
goes with the territory.
    But I think there are more examples of quiet diplomacy and 
things getting worked out than people are aware of. I think 
there are more success stories out there that don't get nearly 
as much attention as the controversies, and that is too bad.
    Mr. Huffman. Thank you both. I yield back, Mr. Chair.
    The Chairman. I thank the gentleman. Next I will recognize 
the gentleman from Utah, Mr. Stewart.
    Mr. Stewart. Thank you, Mr. Chairman. Before I begin my 
questions, a comment or two, if I could.
    Mr. Parenteau I appreciate you have given a very passionate 
defense of the decisions of the courts. And I have to say that 
if you believe the courts are infallible with some of their 
decisions or applications of law regarding ESA, or really 
regarding any area of the law, that you may be the only person 
in this room who would take that position.
    In fact, I am really quite surprised with a bit of your 
comment, when you said it was insulting to question some of 
these decisions. And being a professor of the law, I am 
surprised that you would take such a position, and I am 
suggesting that that is probably not a position you would teach 
your students, nor is it a position that you would take if it 
was an area of the law which you disagreed with the court's 
decision.
    Dr. Noss, you mentioned--and I appreciated the fact that 
you talked about President Nixon being the one who initiated 
this process, and also that the vast majority of Americans 
agree with this. And I think that is worth reinforcing. And, 
Mr. Chairman, you made this point, as well. The vast majority 
of Americans want to see this be successful, including the vast 
majority of Republicans, including all of the members of this 
Committee. We want to see species protected. Certainly we don't 
want to see species extinction. And we are all trying to 
accomplish the same thing. The only question is, again, as the 
Chairman indicated, what is the best way and, in some cases, 
the most efficient way, that we can do that?
    And in that regard I would like to then focus my comments 
and my questions regarding some of the unintended consequences 
that may result from excessive litigation, or how these 
petitions to lead--particularly these petitions to list--can 
lead to excessive litigation. Let me quote a statistic and then 
ask a question from that. Between 1994 and 2006 there were an 
average of 20 petitions to list that the Fish and Wildlife 
Service received.
    Dr. Noss, I will start with you. Do you have any idea how 
many they have received in the last few years, over the last 4 
years?
    Dr. Noss. I know it is a lot.
    Mr. Stewart. It is a lot.
    Dr. Noss. Believe me, I am no friend of litigation in a 
general sense. I am no fan of courtroom science----
    Mr. Stewart. Yes.
    Dr. Noss [continuing]. Where talking heads come in and hire 
guns and give one side of the story without being objective. It 
bothers me.
    Mr. Stewart. You know----
    Dr. Noss. I have been one of those. But I try to be as 
honest as possible.
    Mr. Stewart. And I appreciate that, and I get that sense 
from your testimony, that that is kind of your attitude toward 
that.
    Mr. Parenteau, do you have any idea how many petitions that 
Fish and Wildlife has received over the last 4 years, compared 
to the 20 before?
    Mr. Parenteau. Well, I don't have the specific number. I 
know they have increased. And the reason that they have 
increased is because----
    Mr. Stewart. Well, we----
    Mr. Parenteau [continuing]. Congress has put a moratorium 
on listing. The Bush Administration----
    Mr. Stewart. You know how much----
    Mr. Parenteau [continuing]. Stopped listing. There is a 
backlog of listing that has occurred over the last decades.
    Mr. Stewart. Wait, that is not----
    Mr. Parenteau. That is the reason.
    Mr. Stewart. But that wasn't my question, nor my comment. 
Do you have any idea how much they have increased?
    Mr. Parenteau. I don't know the exact number.
    Mr. Stewart. They have gone from about----
    Mr. Parenteau. I know it has increased, and I know the 
reason that it has increased.
    Mr. Stewart. They have gone from about 20 to more than 
1,200.
    Mr. Parenteau. And the reason is because of the backlog of 
listing because the program hasn't been funded, because----
    Mr. Stewart. Once again, sir----
    Mr. Parenteau [continuing]. The agencies haven't done what 
the law requires, sir.
    Mr. Stewart. Mr. Parenteau, I haven't asked you a question, 
and that is not the area of my questioning or my interest right 
now. My point is that they have gone up by an extraordinary 
amount.
    Now, I would like to quote----
    Mr. Parenteau. You should ask why.
    Mr. Stewart. I know why, and I think we are--I think we 
have a disagreement on opinions as to----
    Mr. Parenteau. All right.
    Mr. Stewart. Now, let me ask you. Would you agree with the 
current Administration's position--this is from the Deputy 
Secretary Hayes--when he says, ``My major concern is the fact 
that this has been fish-in-the-barrel litigation for folks 
who--because there is a deadline and we miss these deadlines, 
and so we have been spending a huge amount of time, in my mind, 
relatively unproductive time.''
    And once again, this isn't a Republican administration, 
this is the current Administration saying, ``relatively 
unproductive time'' fending off lawsuits in this arena.
    Mr. Noss, again, I would like to come back to you and ask 
you to respond to that, if you would.
    Dr. Noss. Well, the reason the agencies are getting sued is 
that they are not following the law. And the main reason they 
are not following the law is they don't have the budget to do 
it.
    There is also political interference, and I have witnessed 
some of that myself. As Congressman DeFazio may be aware, the 
biological knowledge to list the Northern Spotted Owl as 
endangered or threatened existed many, many years before the 
listing actually took place. And people were scared to death 
about what might happen if that bird were listed. In the end, 
of course, it wasn't the Endangered Species Act that caused a 
court injunction against logging in the Northwest, it was a 
violation of the National Environmental Policy Act and National 
Forest Management Act.
    Mr. Stewart. I would suggest that you may be right on that. 
In some cases they are sued because they may not be following 
the law. But I would also suggest--and this is very obvious to 
anyone who is honest about this--it is very clear that in many 
cases they are suing because it is a revenue source for them.
    In the last 4 years, 570 lawsuits the Justice Department 
has had to defend that have led to an outcome of more than $15 
million allocated to different environmental groups. And it 
would be, I just think, dishonest to not recognize that is a 
very clear financial incentive----
    Dr. Noss. If that is happening, I deplore it. Believe me.
    Mr. Stewart. Yes, thank you.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentlelady from New Hampshire.
    Ms. Bordallo. Mr. Chairman, I ask unanimous consent to add 
an article to the record in which Fish and Wildlife Director 
Dan Ashe states on the scale of the challenges that we face 
implementing the Endangered Species Act. Litigation doesn't 
even show up on the radar screen.
    The Chairman. Without objection, it will be part of the 
record.
    [Note: The article submitted for the record by Ms. Bordallo 
has been retained in the Committee's official files and can be 
found at http://www.fws.gov/endangered/media/
TheWildlifeProfessionalSpring2013-DansEditorial.pdf.]
    The Chairman. The Chair recognizes the gentlelady from New 
Hampshire, Ms. Shea-Porter.
    Ms. Shea-Porter. Thank you, Mr. Chairman. I am very 
concerned about the tone of this hearing, and I would ask that 
we not pit ourselves against one another or unjustly attack the 
men and the women who have come to talk to us and give us their 
best knowledge and opinion.
    Some of this, I think, is larger than the people right 
here. Comments such as, ``Every time we allow some agency to 
get involved,'' and then going on about how the Federal 
Government should stay out of our business if we are not doing 
it right, and then I took a look at some of the testimony 
again, and Mr. Parenteau wrote, ``Federal agencies have much to 
learn from those who are closest to the resources and 
activities affected by the ESA.'' And so I thank you for that 
comment.
    And I would say that we shouldn't be pitted against each 
other here. At the very beginning the Chairman said this is 
what we all agree on, that we want to protect these resources. 
And so, yes, we may have some disagreement here. But I think 
what we have been hearing today has been particularly 
unproductive.
    So, having said that, I will move on to Dr. Noss. Mr. 
Parenteau referenced a study that estimated more than 170 
species would have gone extinct in ESA's first 25 years, if not 
for the law's protections. Given the fact that so many species 
have not been listed until they are on the brink of extinction, 
can you explain the importance of that achievement and what it 
says about the future?
    Dr. Noss. Well, again, I find it amazing that the 
Endangered Species Act has been as effective as it has been, 
given all the hurdles and the continuing trends of ecosystem 
degradation. But as far as the future, we have to understand 
that biologists recognize a phenomenon we call the ``extinction 
debt.'' What it means is that the number of species you see out 
on the landscape at any given time includes a number of species 
that are basically committed to extinction because of habitat 
loss over time. They may have lost 95 percent of their habitat. 
And they are still around, but they are in populations so small 
that they are going to go extinct over the next few decades, or 
maybe a century or two. But the only way to bring them back 
would be massive habitat restoration, as well as protection.
    And so, we have, really, a backlog of extinction. Some 
people have called these species the walking dead. They are out 
there, walking around, but they are not really alive, because 
they are not going to last long. I mean those are the kind of 
species I really worry about.
    And the Endangered Species Act needs to do a better job, I 
think, of prioritizing species for protection, to following its 
first stated goal, to conserve the ecosystems upon which these 
species depend, and do so in a broad way, rather than species 
by species, site by site, threat by threat. I think that is how 
we will make progress.
    Ms. Shea-Porter. OK. Thank you for that. And the other 
question I had was there was some testimony about how you can't 
use climate change models going out, 10 years, 50 years, 100 
years. And aren't those models pretty accurate at this point?
    Dr. Noss. They are getting better all the time. They always 
carry some uncertainty, and all the authors of those papers 
about future climate envelopes for species have acknowledged 
the uncertainty. They are getting better. The main questions 
arise about are species actually able to move across the 
landscape to where their predicted new habitat is located, or 
are we going to have to move them ourselves? And what does that 
mean? What kind of threats come along with that?
    So, there are all kinds of questions of that sort. The 
point is that the landscapes of today are heavily fragmented. 
And so, when climate changed in the past, sometimes just as 
rapidly as it is changing now--and it is really a falsehood 
that climate change is more rapid today than at any time in the 
past; there has been periods in the past that were every bit as 
rapid or more than what we can expect over the next century. 
But then, the landscape was connected. It was a natural 
landscape. Today we have cities, we have highways, we have huge 
agricultural fields in the way. That is where the biggest 
question about the impacts of climate change lie, in my 
opinion.
    Ms. Shea-Porter. All right. And then I have one more 
question. How many years, decades of experience do you have?
    Dr. Noss. About four.
    Ms. Shea-Porter. OK, four decades of experience.
    Dr. Noss. Plus school.
    Ms. Shea-Porter. Are we where you thought we would be when 
you first started in this field? Has it been better or worse, 
or kind of what you thought was going to happen, taking a long 
view, four decades ago?
    Dr. Noss. That is a good question. I think the 
environmental awareness, and at least excitement in my 
generation in the 1960s and 1970s has waned somewhat. You don't 
see it, even among my generation and among young people, as 
strongly today. And so I am disappointed in that.
    Things have gotten worse. I actually did not think that the 
population would continue to grow at the rate it has been 
growing, in the United States or globally, because population 
was a huge issue in the 1970s. Today it is taboo. People don't 
want to talk about population, and especially immigration, it 
is not politically correct. So, there I am disappointed.
    But, on the other hand, the science has actually progressed 
faster than I might have predicted. We now have a pretty good 
understanding about what--at least those species that we have 
studied, what they need and what their ecosystems need to 
persist over the long term. And so I am excited by that.
    Ms. Shea-Porter. And you feel good about the science.
    The Chairman. The time of the gentlelady----
    Ms. Shea-Porter. Thank you very much, I yield back.
    The Chairman. The time of the gentlelady has expired. I 
recognize the gentleman from Montana, Mr. Daines.
    Mr. Daines. Thank you, Mr. Chairman. Mr. Ferrell, I was 
struck by your testimony that suggested that back in 1996, when 
the wolves were reintroduced there into the Northern Rockies--
and I come from the State of Montana, I am an avid outdoorsman, 
I am a fifth-generation Montanan, I have spent more time above 
10,000 feet backpacking in wilderness than most Sierra Club 
members have, and so I am an avid conservationist and I love my 
State, and I love the part of the country I come from.
    In 1996, the wolves were reintroduced. And in 5 years, your 
testimony said, they exceeded the target goal. Yet it took us 
12 years to move through the process of moving them off the 
endangered species list. Can you elaborate more on what the 
single biggest challenge was, in terms of it was 5 years to hit 
the goal, which we are grateful--we have the wolves, the goal 
they wanted--but 12 years to get them off the list.
    Mr. Ferrell. Well, thank you for the question. The 
testimony, I think, actually reflects it has been 6 years. But 
still, I think what the point there is it is a prolific 
species. Once it was given protections in Yellowstone National 
Park, it expanded rapidly, and it continues to do that.
    And so, unlike other species that aren't quite as 
reproductive, wolves are. And the challenges have been trying 
to actually get them delisted--have really nothing to do with 
the numbers, in my opinion. I mean they have--we have been at--
like I said in my testimony, our recovery goal has been--all 
recovery goals have been met now for the twelfth consecutive 
year. And yet we are still facing more litigation on that 
delisting 9 months ago.
    Mr. Daines. I think many of us realize that the wolves 
didn't know where the boundary of Yellowstone National Park 
was. They tend to move. And I see them a lot. In fact, I have a 
wolf tag in my pocket from 2011 that was unused.
    Commissioner Jankovsky, a question. In your testimony you 
mentioned the necessity of the Department of the Interior to 
use accurate and viable data to support the warranted lifting.
    Second, you mentioned the importance of the Secretary of 
the Interior to work with local governments in their 
decisionmaking. And you come from Garfield County. We have a 
Garfield County in Montana, as well, out in the eastern part of 
our State. I can tell you, listening to what you had to say 
there, I couldn't tell the difference. Whether you are from 
Garfield County in Montana or Garfield County in Colorado, we 
have the same challenges with the Department there in my home 
State.
    The Department has released three resource management plans 
for their Billings, Mile City, Hi-Line offices. These plans--
especially their Greater Sage Grouse planning--are a supreme 
concern to county commissioners, ranchers, farmers, oil and gas 
developers, and other land users in Montana. And these plan 
parameters are established for priority-protected habitat for 
sage grouse, areas of critical environmental concern. And, by 
the way, the wolves are moving into sage grouse country as 
well, now, which is just another dynamic as we think about 
working with balancing the species, because wolves do need to 
eat.
    The comment period for these plans end abruptly this month, 
without the possibility of an extension. The reasoning the BLM 
mentioned for the refusal to extend these comment periods is 
due to the mega-settlement reached between the Department, the 
U.S. Fish and Wildlife Service, and groups like the Center for 
Biological Diversity referenced in this hearing.
    In your opinion, since the settlement was negotiated 
amongst the Department, the U.S. Fish and Wildlife Service, and 
the groups to conserve the Greater Sage Grouse, is it possible 
for the Department and BLM to extend comment periods for 
resource management plans in order to assure adequate data is 
considered?
    Mr. Jankovsky. Yes, in my opinion, this covers 11 States, 
it covers 69 different planning units within the BLM. And I 
believe if counties were to ask for an extension, that is 
possible. But the problem is--and what I have heard as a 
cooperating agency--is we are under the gun, we are under a 
timeframe, where we have to get this done by 2014 for habitat 
management, so the bird will not be listed in 2015.
    Mr. Daines. Is another good reason for extension so that 
local Montanans can have sufficient opportunity to digest the 
proposed plans, evaluate impacts, and then comment on them?
    Mr. Jankovsky. Well, I agree with that. We are one county 
with a very different topography, as I mentioned, from where 
the studies were done for the NTT report. And I think when you 
cover 11 States in the Western United States, you are going to 
find many counties with very diverse topography, very diverse 
uses of their land, and this is a big issue that I think 
actually has been misused to some extent.
    Mr. Daines. Quickly, as we are running out of time, can you 
expand on this uncertainty a declaration of priority habitat 
creates for neighboring ranchers, private property owners, and 
resource development?
    Mr. Jankovsky. Well, I think, first of all, that the best 
science hasn't been used. There are studies out now that 
grazing actually works well with the sage grouse and improves 
the habitat. And it does not state that in the NTT report.
    Mr. Daines. Thank you.
    The Chairman. The time of the gentleman has expired. I 
recognize the gentleman from Oregon, Mr. DeFazio.
    Mr. DeFazio. Thank you, Mr. Chairman. Dr. Noss, you talked 
at some length about ecosystems, rather than individual 
species. And that would essentially require a refocusing and 
potentially a change in the Endangered Species Act, would it 
not?
    Dr. Noss. Well, it was the first stated goal, but it was 
not mentioned in the original Act. It is mentioned again--I 
think it was in the 1982 amendments but, again, with no clear 
direction to Congress for how to accomplish that goal.
    Mr. DeFazio. Right. And----
    Dr. Noss. So, yes, I think there needs, personally, to be a 
new law.
    Now, it is interesting, the Province of Manitoba, just last 
month, renewed their Endangered Species Act, but now it is the 
Endangered Species and Endangered Ecosystems Act, and they are 
especially designating tall grass prairies, calcareous 
prairies, and other ecosystems within the province that have 
declined greatly. And the point is, when ecosystems decline, so 
do the species associated with them.
    So, for many decades I have championed an ecosystem 
conservation as a proactive, cost-effective way to take care of 
a number of these species, rather than to have to deal with 
them all individually.
    Mr. DeFazio. Right. In the last couple of years, as we have 
been trying to work through management of the forests in 
Oregon, I was out with someone from Fish and Wildlife, a top 
official. And there was some controversy over a proposed 
management prescription which would have removed some rather 
large fir trees in a ponderosa pine area. And he said, ``Look. 
What is good for the forest is good for''--not just the owl, 
but the other species, also.
    Dr. Noss. I agree.
    Mr. DeFazio. So, somehow we have to kind of move from that 
rifle shot to something that is a little broader, generally.
    Dr. Noss. I agree. But, at the same time, I think we have 
to recognize that even if we really implemented ecosystem 
conservation in the best possible way, there will still be 
those species, those conservation-reliant species, those 
walking dead species, that are going to need individual 
attention for quite a while until the ecosystems are once again 
healthy enough to sustain them.
    Mr. DeFazio. Right. And then HCPs would have to play a big 
role in that, right, since this is not exclusively taking place 
on Federal land.
    Dr. Noss. Exactly right. And the best HCPs that I have seen 
consider the ecosystem and ecological processes, as well as the 
individual species. HCPs, of course, are all over the block. 
Some of them are excellent, at least so far; others are pretty 
dismal failures. But HCP is one way we can accomplish ecosystem 
conservation, if done right.
    Mr. DeFazio. And then, the issue of excluding States, I 
don't believe States should be sort of just a bystander in the 
process.
    Dr. Noss. I agree.
    Mr. DeFazio. You mentioned the Oregon salmon management 
plan as a success. Do you think we need somehow to change the 
status of States as interveners in the Act, or cooperators, or 
give them some enhanced status?
    Dr. Noss. I think a well-developed conservation or 
cooperative agreement under Section 6 is really all we need. 
That is what that section was written for. And in many States, 
such as Florida, the States and the Feds are cooperating 
completely. And, in fact, some of the environmental groups are 
upset that the State now has a lot more authority about 
management of species than they did in the past. So some of 
those details remain to be worked out, but I think we have the 
mechanism right there.
    Mr. DeFazio. Mr. Parenteau, would you comment on that? What 
do you feel about the role of the States in this?
    Mr. Parenteau. Well, I think it varies from State to State, 
but I think there are some outstanding examples of where States 
have done tremendous things. We have already talked about the 
California NCCP program. I point out the multi-species habitat 
conservation plan in South Florida, the multi-species habitat 
conservation plan around Austin for two species of birds and a 
variety of invertebrate species in caves around Austin that 
settled a long-running dispute over how development was going 
to occur in a very economically high----
    Mr. DeFazio. Well, what are the barriers, then? Why doesn't 
this take place more----
    Mr. Parenteau. Money and staff is a big part of it. It 
always comes back to that. If you give the States the 
responsibility, are you also going to give them the means to 
carry out that responsibility? If you give the Fish and 
Wildlife Service the mandate to go out and work with the 
States, are you going to give them the money and the staff to 
do that? If you want these plans to be based on sound science, 
are you going to fund the kinds of studies that are needed?
    If you are talking about ecosystem approaches, you are 
talking about crossing boundaries, not just county boundaries, 
State boundaries, but international boundaries. For some of 
these species you are talking continental ecosystems.
    So it is fine to talk about the goal of raising the bar to 
ecosystem level. But to operationalize that in a legal sense, 
to make it more than philosophy, to make it law, that has been 
the stumbling block. It is not easy to conceptualize the kinds 
of standards--the lawyers have been at this in my field 
forever. And in the Academy the literature is as big as this 
room on how would you construct a law that had metrics of 
measurement and standards to actually make ecosystem management 
work on the ground. That is the challenge.
    Mr. DeFazio. OK, thank you. Thank you, Mr. Chairman.
    The Chairman. Yes, the time of the gentleman has expired. I 
recognize the gentleman from Texas, Mr. Flores.
    Mr. Flores. Thank you, Mr. Chairman. Just a question for 
Mr. Powell, Mr. Ferrell, and Mr. Jankovsky. Each of you has 
talked about the positive things going on at your State and 
local levels. And, I guess, Ms. Brigham, you as well. You have 
talked about the things going at State, local, and tribal 
levels. You have also talked about the lack of coordination 
between the Federal Government with respect to endangered 
species. And one of the messages I think I heard from you--and 
I just need you to confirm this--is that there is not a 
consistency between Federal plans and State and local plans. Am 
I correct in my understanding?
    Mr. Powell. That is correct.
    Mr. Flores. OK. Ms. Brigham? Mr. Ferrell? Mr. Jankovsky? 
OK.
    In light of that, what could the Federal Government learn 
from your experiences when it comes to identifying and 
protecting and recovering species? Mr. Powell, you first.
    Mr. Powell. At least from Oklahoma's standpoint, what we 
are emphasizing is a voluntary framework through both our State 
conservation plan with the Lesser Prairie Chicken, and now the 
five-State range-wide plan, a plan that, in the event that a 
listing does not go forward, that they do find a not-warranted 
result, which is the goal of all five of the States, that the 
mechanisms, that the mitigation, everything would still exist 
in the future as a voluntary resource. Obviously, we would not 
go through and force folks to do it. There are a lot of folks, 
especially in our oil and gas industry and in our energy 
industry that are going to continue to do it, and have told us 
that, simply because they worry about a future listing coming 
down if they fail to do it.
    Mr. Flores. OK. Ms. Brigham?
    Ms. Brigham. Thank you. I think if the NOAA and the U.S. 
Fish and Wildlife Service would focus on the priority of 
delisting and developing plans to do that, we could accomplish 
a lot. But they seem to be growing their science departments 
and not focusing on rebuilding or delisting.
    Mr. Flores. OK. Mr. Ferrell?
    Mr. Ferrell. The voluntary framework certainly is important 
for us in Wyoming, as well. But a good example of where I think 
we have taken a leading role is in our executive order for sage 
grouse conservation. Essentially, that is designed on a core 
area concept, where 80 percent of the birds actually exist on 
less than 30 percent of the landscape in Wyoming. So you can 
provide a regulatory mechanism that protects those, but still 
allows some leeway for industry to continue to develop their 
goals, as well.
    Mr. Flores. OK. Mr. Jankovsky?
    Mr. Jankovsky. Yes. In our case, we became the center of 
all the agencies. We talked to the Federal Government, and they 
referred us back to the State government. We had to go back to 
the State government and then take that back to the Federal 
Government. And then we had coordination meetings that not only 
had all three governments there together, but allowed the 
public and environmental groups and large land owners to listen 
and participate, as well.
    Mr. Flores. OK. The subject of this hearing today was about 
the sue-and-settle practices that have gone on at the FWS. And 
one of the things I have tried to do to deal with that is to 
introduce H.R. 1314, and it applies to the ESA citizen suits, 
where the Department of the Interior allegedly fails to perform 
a non-discretionary act such as missing a deadline in the 
listing process. This kind of suit is driving much of the 
litigation, and enabling plaintiffs to dictate terms to the 
FWS.
    What this legislation does is it gives local government and 
stakeholders--and that is the four of you at the table--a say 
in the settlements, enhancing the ability of parties affected 
by potential regulation to intervene in the lawsuit. 
Furthermore, it would prevent a judge from approving a 
settlement if States and counties to the plan object.
    It doesn't change ESA in a way that limits the FWS's 
regulatory authority, or prevents it from litigating a case to 
resolution. H.R. 1314 maintains FWS's ability to reach a 
settlement, provided that the States, the counties, and the 
stakeholders, are given a seat at the table.
    So, Mr. Powell, in my limited time, would that be helpful 
to you?
    Mr. Powell. It would be extremely helpful. As we have seen 
with the mass resettlement, it would allow us to at least see 
and maybe have a part in helping to prioritize when listing 
decisions would be needed.
    Mr. Flores. Ms. Brigham?
    Ms. Brigham. Same thing.
    Mr. Flores. OK. Mr. Ferrell?
    Mr. Ferrell. Absolutely.
    Mr. Flores. Mr. Jankovsky?
    Mr. Jankovsky. Yes.
    Mr. Flores. Thank you. I yield back.
    The Chairman. The gentleman yields back his time. The Chair 
recognizes the gentleman from California, Mr. Cardenas.
    Mr. Cardenas. Thank you very much. I would like to allow 
you, Mr. Parenteau, to elaborate on something that maybe one of 
my colleagues wasn't very interested in your answer, but I 
certainly am. It is about environmental groups and how, in my 
opinion, environmental groups are not monolithic in their 
thoughts or efforts. Just like, for example, the congressional 
species that just gathers in this room, a lot of times we might 
disagree on a 22-to-18 basis ongoing very often. So we are not 
monolithic either, even though we may have the same titles and, 
at the end of the day, may even have the same goals.
    So, what do you think would lead to less lawsuits? Because 
that was the discussion earlier, and it was about lawsuits and 
the attack on--that environmental groups are of a certain 
nature and that that leads to lawsuits.
    Mr. Parenteau. I think batch listing is the way to go.
    Mr. Cardenas. What is that?
    Mr. Parenteau. Batch listing, which is happening. The mega-
settlements that we are talking about, one of the advantages of 
them is that is going to require that more than one species be 
listed at a time.
    I am fully in agreement that process ought to be open to 
those who want to comment on it. I don't have any argument 
about that. And my point is that before any consent decree is 
entered by a Federal district judge there is the opportunity 
for comment. Now, whether people took advantage of it or not, I 
can't say.
    But I can say, as a matter of law, those decrees have to be 
noticed in the Federal Register, there is an opportunity to 
comment, there is an opportunity to tell the judge why the 
decree is wrong, how people are prejudiced by it, how it is 
going to have adverse effects on the public interest, so all 
the people at this table who don't like these multi-settlement 
agreements, in my view, missed an opportunity when those 
settlements were entered. They had the opportunity to weigh in 
if they wanted to so they could take advantage of that.
    If something more needs to be done, I would be one of those 
to say it is better to have people's problems with agreements 
registered earlier, rather than later. So, the more the process 
can be transparent and opened up to people to say, ``Wait a 
minute, this is not the right thing to do, this is going to 
have this adverse effect that you may not have thought about,'' 
that is a good thing to do.
    But the fundamental problem of why we have so many lawsuits 
is because there are so many violations. And the reason that we 
have so many violations is because the Agency is not performing 
non-discretionary duties. And the reason they are not doing 
that is they don't have the staff, they don't have the funding, 
they have political interference, they have other things they 
want to do. Whatever the reasons are, it is no secret. It is 
not rocket science. There are violations of law, and the courts 
are saying that is what is happening, and it has to stop.
    If you want to change the law, if you want to structure a 
new process that avoids the one-by-one listings, fine. I think 
there are some environmental groups out there who would be 
willing to entertain that conversation, so long as the goal is 
strengthening the recovery process, not weakening it. If that 
can be the agenda, I would think there would be people who 
would be willing to pursue that.
    Mr. Cardenas. Mr. Noss, when it comes to the science behind 
this whole discussion why we are where we are, why the United 
States even has these laws on the books, or what have you, can 
you please remind us why we--the connection between the purpose 
for protecting species and the connection between the human 
species?
    Dr. Noss. Well, the Endangered Species Act, again, was the 
response of the American public talking to its legislatures 
about their concern that wildlife was disappearing, was 
declining. And there were many species of especially 
charismatic----
    Mr. Cardenas. But let's get past that. The reason why I 
asked this question is because a lot of people say, ``So what 
if a butterfly is gone? So what?'' Or, if a particular wolf is 
no longer around, so what? Or a particular rabbit, or a 
particular lizard----
    Dr. Noss. OK.
    Mr. Cardenas. That is my point.
    Dr. Noss. OK----
    Mr. Cardenas. I mean a lot of people don't understand--or 
maybe you are wrong in your answer. I don't--I----
    Dr. Noss. Well, I actually--I was getting to that. Because 
originally, the----
    Mr. Cardenas. But we have an element of time, so----
    Dr. Noss [continuing]. Focus was on big, charismatic--what?
    Mr. Cardenas. If you could condense it.
    Dr. Noss. OK. The original focus was on the big, 
charismatic species. Science has progressed to the point that 
we now recognize the role of these smaller, to most people less 
charismatic species that are absolutely critical to the 
function of that ecosystem, that contain chemicals and 
structures in their body that have proven very useful for 
industry, for medical science, and so on.
    And also, this ecosystem functions best when the full suite 
of species is maintained. And we can't predict, in many cases, 
exactly what will happen to the ecosystem if we lose a given 
species, because there is some kinds of redundancy built into 
the system. But because we can't predict, to keep every cog and 
wheel is the best intelligent tinkering, as Aldo Leopold 
pointed out years ago. So it is a precautionary approach.
    We know that these species play valuable roles. It is hard 
to say exactly what those are, because there hasn't been money 
to study them sufficiently, but they do play roles that the 
American people depend on, both directly through products and 
chemicals, and indirectly through the services provided by 
ecosystems.
    Mr. Cardenas. So there is, without question, a connection.
    The Chairman. The time of the gentleman----
    Dr. Noss. Without question, it is very well substantiated.
    The Chairman. The time of the gentleman has expired----
    Mr. Cardenas. Thank you very much, Mr. Chairman. I yield 
back.
    The Chairman. The Chair recognizes the gentleman from 
California, Mr. McClintock.
    Mr. McClintock. Thank you, Mr. Chairman. As I listen to the 
acting Ranking Member, on behalf of the Democratic Minority, 
one would think that the ESA was this magnificent success to 
the environment that has had no cost to our economy. This is 
sheer fantasy.
    You know, as to the former claim, I direct her attention to 
the Pacific Legal Foundation study that utterly debunked the 
notion that this has been such a fabulous success. The PLF 
documented that more than 30 percent of all of the delisted 
species noted by the Center for Biological Diversity were 
because of Federal data error. In other words, they shouldn't 
have been listed in the first place.
    And as to the latter claim that this has come with no 
economic cost, I would certainly invite her to come to 
California's Central Valley, where the ESA has required the 
diversion, literally, of billions of gallons of water from the 
Central Valley agriculture that has destroyed literally 
hundreds of thousands of acres of some of the most fertile and 
productive farm land in America that has thrown thousands of 
farm-working families into unemployment, that has raised 
grocery prices for us all, all in the name of the three-inch 
delta smelt.
    Currently, Fish and Wildlife proposes to declare about 2 
million acres of the Sierra Nevada as critical habitat to 
protect the Mountain Yellow-Legged Frog. That is essentially 
the entire Sierra Nevada. That means severe restrictions or 
outright prohibitions on grazing, on timber harvest that are 
already down 86 percent from 1980 levels, fire management, 
recreation, including hiking and rafting and camping. This in 
an area that has already been economically devastated by 
Federal regulations, is threatened by catastrophic forest 
fires, and is heavily dependant on both resources and tourism 
for its economy.
    This bespeaks a complete lack of balance in addressing the 
issue, and an ideological extremism that is utterly 
breathtaking in its scope and utter disdain for the welfare of 
millions of American families who are affected by these 
policies.
    You know, as the Chairman said, no one wants to see a 
species go extinct. We want a super-abundance of these species, 
which, it seems to me, we can produce at far lower cost than 
the extensive and expensive measures required by ESA, which 
brings me to Ms. Brigham and her experience with fish 
hatcheries on the Columbia. It reminded me of my experience on 
the Klamath, where this Administration is seeking to spend over 
a half-a-billion dollars of taxpayer money to tear down four 
perfectly good hydroelectric dams that are producing--or 
capable of producing--155 megawatts of the cleanest and 
cheapest electricity on the planet. The excuse is because of a 
catastrophic decline in the salmon population on the Klamath.
    When I first visited there and was told of this, I said, 
``Well, why doesn't somebody build a fish hatchery?'' Well, it 
finds out somebody did build a fish hatchery at the Iron Gate 
Dam. It produces 5 million salmon smolts a year. Seventeen 
thousand of those smolts return as fully grown adults to spawn 
in the Klamath every year. The problem is they are not allowed 
to be included in the population counts.
    Ms. Brigham, we are told that, well, they are just not the 
same, hatchery fish and wild-born fish. But it seems to me the 
only difference between a hatchery fish and a wild-born fish is 
the difference between a baby born at home and a baby born at 
the hospital. Have you discerned any differences between the 
hatchery fish and the wild born fish?
    Ms. Brigham. On the Columbia River, the only way we can 
identify the difference is the mass marking that occurs on the 
Columbia River. If it doesn't have an adipose clip, it is a 
wild fish. If it has an adipose clip, it is a hatchery fish. If 
it has its clip or fin adipose, then it is a wild fish, and 
that is the only way you can tell the difference.
    Mr. McClintock. Well, after a hatchery smolt has gone into 
the ocean, survived 5 years in the open ocean, and returned as 
a fully grown adult to spawn, hasn't it already demonstrated 
that it is just as hale and hearty as a wild-born fish?
    Ms. Brigham. It is all due to management, yes.
    Mr. McClintock. And don't the same laws of natural 
selection in the wild apply equally to hatchery fish and wild-
born fish during those 5 years that they are in the open ocean?
    Ms. Brigham. Yes.
    Mr. McClintock. Well, then, it seems to me we ought to just 
count the damn hatchery fish.
    Captive breeding of the broad-backed California condor 
brought them back from the brink of extinction, it seems to me 
that we should be encouraging that practice. It is also 
dramatically cheaper than measures that are otherwise required 
by the ESA.
    Mr. Jankovsky, if we assured the product of captive 
breeding programs were included in assessing population counts 
and mitigation measures, what effect would that have on the 
issues that you are dealing with?
    Mr. Jankovsky. Well, on sage grouse it is a little bit 
different, but there is one recent study showing that eggs that 
were produced in a hatchery, so to speak, or an incubator, have 
been successful.
    Mr. McClintock. My time has expired, but I would also be 
interested in thoughts of any of the other Members who are 
testifying.
    The Chairman. If they could respond, I would appreciate it. 
Thank you.
    Ms. Brigham. I have a quick----
    The Chairman. The Chair recognizes the gentleman from 
Nevada, Mr. Horsford.
    Mr. Horsford. The mic isn't working. I guess when you get 
to the end, it doesn't work as well.
    [Laughter.]
    Mr. Horsford. Thank you, Mr. Chairman, members of the 
Committee, for testifying today. I am from Nevada. I represent 
both the rural and urban part of 52,000 square miles in Nevada. 
And we are working on the recovery of sage grouse in our State. 
And we don't know yet if sage grouse will need to be listed, 
but our Governor is working with State, local, and Federal 
agencies to help recover species now, so we can be proactive.
    So, I would like to ask what might be the implications for 
species if Congress modifies the Act, or if outside advocates 
are not allowed to petition for species protection. Mr. Noss.
    Dr. Noss. The rate of listing has been so slow that without 
the petitioning process to bring species to the attention of 
the Fish and Wildlife Service, I think we would have a lot of 
species sinking into the brink of extinction before they are 
noticed.
    Many of the species that have been petitioned for listing 
of course still don't get listed. They have been put into this 
warranted-but-precluded category, where listing is found to be 
warranted, based on the best available scientific information, 
but then they sit in limbo for up to decades. So there, the 
citizen petition process has failed. But it is primarily 
because, at least from what the Fish and Wildlife Service says, 
it is because of high-priority listing actions taking 
precedence over those considered of lower priority, which is 
often a political decision.
    But the bottom line is they don't have enough money to list 
all the species that are petitioned.
    Mr. Horsford. So, to that point, I wanted--that was a 
follow-up question that I had. So, in the event that there is a 
delay in listing, what does that do to the actual eventual 
recovery? Does that make that easier or more difficult?
    Dr. Noss. If the delay results in continuing population 
decline of the species, which, in most cases, it does, without 
the protection of the Act, then recovery is going to be more 
difficult. The smaller and more precarious the population at 
the time that recovery kicks in, the more difficult it is to 
ever get that species off the Act.
    Mr. Horsford. So then can you or anyone else identify or 
comment on any early intervention--best practices to 
intervention recovery?
    Dr. Noss. In some cases the States are doing that. There is 
one species that I petitioned for listing back in 1987, in 
Florida, the Sherman's Fox Squirrel. It is still in warranted 
precluded category with Fish and Wildlife Service after all 
those decades. But the State now is undertaking extensive 
surveys and studies of this species, and has an action plan in 
draft form that I just reviewed the other day.
    So, that is an example where a State has stepped in where 
the Federal Government was basically not at the door, and done 
what was necessary at least to try to get the information to 
figure out how to recover this species. So it is still listed 
by the State, even though the Feds have refused to list it so 
far.
    Mr. Horsford. OK. And is it correct that environmental 
groups aren't the only ones who can recover under the ESA's 
citizen suit provision? Is that correct?
    Mr. Parenteau. That is correct.
    Mr. Horsford. So, instead, a broad spectrum of people, 
including those who do not want species to receive ESA 
protections frequently file suits under this provision?
    Mr. Parenteau. Absolutely right.
    Mr. Horsford. And so, would you care to address, then, some 
of the remarks during this hearing about the ESA is a failure 
because so few species have recovered?
    Dr. Noss. Well, as I think several people have commented 
now, it is amazing that any species have recovered, given the 
increasing threats to these species existence that can be 
linked to human population growth and increasing habitat 
destruction. So it is really no surprise that recovery has been 
so slow. Even with lots of money dedicated to the recovery of 
these species, we would still have severe problems recovering 
many of them, because their habitat just isn't there.
    Mr. Horsford. OK. Well, thank you, Mr. Chairman, and I will 
conclude there. I would again just ask, as we are trying to do 
in our State, my objective of being on this Committee is 
finding best practices to solve problems. And sage grouse is a 
big problem. We know it is a problem in other places. There are 
strategies that we can implement now proactively, and I would 
like to work cooperatively with my colleagues on the other side 
to figure out ways to do that, so that we can prevent these 
type of species being listed, thereby avoiding delay in 
development and growing our economy. So I appreciate you very 
much.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentlelady from Wyoming, Mrs. Lummis.
    Mrs. Lummis. Thank you, Mr. Chairman, and thank you, one 
and all, for attending today.
    Mr. Ferrell, a question for you. About how much money and 
manpower has the State of Wyoming put into on-the-ground 
conservation and wildlife management?
    Mr. Ferrell. Thank you for the question, Congresswoman. 
Well, just annually, for example, the Game and Fish's budget is 
about $60 million a year. All of that is essentially going 
toward conservation. The Wyoming Wildlife and Natural Resources 
trust fund has put a tremendous amount of money in just sage 
grouse alone. In the last 3 years, I think the number is over 
$100 million between matched money by the private sector in the 
State of Wyoming and, for example, the Natural Resource 
Conservation Service's sage grouse initiative.
    So, we are talking numbers that we have never seen before 
in my profession being committed by a State to a single 
species.
    Mrs. Lummis. And how much money, roughly, is in the Wyoming 
Wildlife and Natural Resources trust fund?
    Mr. Ferrell. Oh----
    Mrs. Lummis. That is--I will get that from you later.
    Mr. Ferrell. I could get that for you later.
    Mrs. Lummis. OK. What about other stewardship conservation 
groups and volunteer organizations? Do they add anything to the 
effort?
    Mr. Ferrell. Absolutely.
    Mrs. Lummis. Let me ask you about some of those, if I 
could, sort of yes or no. Does the Rocky Mountain Elk 
Foundation do on-the-ground conservation?
    Mr. Ferrell. Absolutely.
    Mrs. Lummis. And do they help you, in your capacity as 
Wyoming's Endangered Species Act coordinator with on-the-ground 
recovery?
    Mr. Ferrell. They do. They are primarily focused on elk, 
but they are looking at landscape-scale projects that help 
endangered species, as well.
    Mrs. Lummis. What about the Conservation Fund?
    Mr. Ferrell. They do, as well. They help fund some of those 
conservation easements that I have spoken about regarding sage 
grouse.
    Mrs. Lummis. What about the Wyoming Stock Growers Land 
Trust?
    Mr. Ferrell. Very, very active in conservation. Also in the 
sage grouse arena.
    Mrs. Lummis. Do you know if the Montana Land Reliance, the 
Colorado Cattlemen's Ag Land Trust, the California Range Land 
Trust participate in conserving species, along with ecosystem 
efforts?
    Mr. Ferrell. I am not familiar with what those groups are 
doing.
    Mrs. Lummis. OK. What about the Center for Biological 
Diversity? Has it done actual conservation work on the ground 
in our State?
    Mr. Ferrell. Not to my knowledge.
    Mrs. Lummis. What about the Natural Resources Defense Fund, 
the NRDC?
    Mr. Ferrell. Again, not to my knowledge.
    Mrs. Lummis. How about WildEarth Guardians?
    Mr. Ferrell. Same.
    Mrs. Lummis. No on-the-ground conservation work?
    Mr. Ferrell. Not that I know of.
    Mrs. Lummis. In our State. Do you know if they have done--
did they do any in Arizona, when you were in Arizona?
    Mr. Ferrell. No.
    Mrs. Lummis. I have a question about grizzly bears. Was the 
grizzly bear at one time--first of all, is it listed as an 
endangered species?
    Mr. Ferrell. It is listed as threatened.
    Mrs. Lummis. Threatened. At one time was it considered 
recovered under the initial breeding pair per land area 
recovery criteria?
    Mr. Ferrell. It was delisted in 2007 and put back on the 
list through litigation in 2008.
    Mrs. Lummis. And was it under a different set of criteria? 
Why, when it was recovered under initial criteria, was it 
subsequently put back on a lesser level of listing, but 
nevertheless a listing level?
    Mr. Ferrell. The downlisting from endangered to threatened 
I believe happened a long, long time ago. I couldn't comment on 
that.
    Mrs. Lummis. You mentioned seven suggestions that you had 
for this Committee in your testimony. You also discussed two of 
them, litigation and climate change modeling--you went into 
some detail on those. Could you give us a couple more examples 
that you would like to highlight of those seven suggestions in 
your testimony?
    Mr. Ferrell. I would be happy to. One of the things is this 
definition of significant portion of the range. It is kind of a 
technical analysis, but what had happened in 2011, there were 
two court decisions primarily that said you can't delist on 
administrative boundaries any more. The frustration with that 
is that administrative boundaries is where regulatory 
mechanisms come from. That is the source of a regulatory 
mechanism. And yet, regulatory mechanisms are often cited, 
including those cases, as what is being inadequate, causing the 
relisting of a delisted species.
    But aside from that, the current draft definition of SPR 
doesn't allow one to use some of the tools that are most 
important to us in conserving threatened species, those being 
10(j) designations and 4(d) rules.
    Mrs. Lummis. So 10(j)--my time has expired. If we go into a 
second round, I would like to explore non-essential 
experimental populations. Thank you.
    The Chairman. Or we will get a written answer to those 
remarks.
    The Chair recognizes the gentleman from California, Mr. 
Costa.
    Mr. Costa. Thank you very much, Mr. Chairman. I have a lot 
of questions, can't cover it all, I will submit them for the 
record.
    I want to talk first about 50,000 feet, and then maybe a 
little more specifically to some California issues. When I was 
here earlier in the hearing there was some discussion about 
recommendations that the environmental community has provided 
to reform the Endangered Species Act. Did either of our two 
professors here provide a listing of what those recommendations 
are?
    Mr. Parenteau. I think the most extensive discussion was 
during Senator Kempthorne's tenure. That is the last time that 
I recall that there was a serious effort----
    Mr. Costa. Do you have a series of recommendations?
    Mr. Parenteau. For how the Act should be changed?
    Mr. Costa. Yes.
    Mr. Parenteau. Yes. It needs a recovery mandate, it needs a 
dedicated fund for recovery. It needs to do multiple species 
listings. It needs to explore--because I don't think we are 
ready to write a law yet--how you would get to an ecosystem 
level approach to conservation and get away from this one-
species-at-a-time approach. I don't think we are ready to write 
a law----
    Mr. Costa. Well, it has been a criticism for a long time, 
one species at a time. And now, looking at the entire 
ecosystem, certainly places that I am familiar with in 
California, and I think that is a result of--let me drill down 
a little further.
    We have arguments all the time about best use of science. 
And I don't know, if some others of you would like to opine, 
please chime in. The science is always changing. We get better 
at it. And, of course, there are different interpretations of 
the science that are used by folks of various philosophical 
persuasions. So how do you determine what, in fact, is the best 
science, when it is continuing to evolve, and we learn more? 
Dr. Noss?
    Dr. Noss. The weight that the approach that scientists 
themselves use is evidence-based research. Basically, it is the 
weight of evidence. Science does keep changing, but at any 
moment in time there is not necessarily a consensus in the pure 
sense of that word, but there is weight of evidence favoring 
one point of view over the other. This does change through 
time, but it changes relatively slowly. I think that recovery 
plans should be revised when the weight of evidence for a new 
approach changes.
    Mr. Costa. Yes, but in terms of the practical application 
of that, then we get muddled into lawsuits, which are very 
lengthy, very costly, and, at the end of the day, I don't think 
do much to resolve the restoration of any particular species.
    Dr. Noss. I think it depends on defensibility of the 
change. If the change is arbitrary and capricious, that is one 
thing. But if the change is based on the best available science 
at that time, on the weight of evidence----
    Mr. Costa. What do you think about the----
    Dr. Noss [continuing]. To not change is irresponsible.
    Mr. Costa [continuing]. When you are trying to evaluate 
best science, and we talk about reasonable and prudent 
alternatives and the application of reasonable and prudent 
alternatives to create flexibility, when there are differences 
as it relates to the science?
    Dr. Noss. Science seldom points to one option as the only 
option that might succeed. There is generally options that 
might----
    Mr. Costa. I concur with you, but we have--in projects that 
my colleague, Mr. McClintock, was talking about, we have a--
there are--I concur with you, there are a lot of knobs here 
that you can turn to try to----
    Dr. Noss. Exactly.
    Mr. Costa [continuing]. Impact an ecosystem. But in these 
water fights that we handle, we continue to use one knob and 
ignore all the other factors that are impacting the ecosystem 
and particular species. But it is done for a particular agenda, 
and for a purpose. And then it makes it very, very difficult to 
get folks to agree.
    Let me ask you another question, because, I mean, we 
understand how the game is played. But a noted environmentalist 
was making reference to the Keystone Pipeline, about mitigation 
for the Keystone Pipeline. And I thought he was very 
forthcoming in his comment. He says, ``There is no mitigation 
that can be done for the Keystone Pipeline,'' which, by the 
way, I support. And he says, ``We just don't believe we ought 
to continue to foster any enhancement of fossil fuel. And so, 
if we don't build the Keystone Pipeline, it will have that, we 
hope, that effect, and therefore, no mitigation is 
acceptable.''
    I mean my view is we have hundreds and thousands of miles 
of pipelines in this country, and if we can't build that, gee, 
safely, we ought to give up, because you can mitigate for it. 
Now, at least if the agenda is we don't want any fossil fuel, 
and we want to discourage it, then let's not talk about 
mitigation, because that is not the issue.
    Let me ask you one last question before my time runs out 
here. Restoration versus extinction. Species have been going 
extinct for hundreds and millions of years. But now, of course, 
it is man's impact on it. When do we make an ethical judgment 
as to what the contributions are that man is contributing to an 
extinction versus the natural course of evolution?
    Dr. Noss. There are species that are on their way out 
naturally, but that is a very slow pace. As Mr. Parenteau 
mentioned, science is overwhelming in support of the idea that 
extinction rates today are hundreds to thousands of time the 
natural rate, which are referred to as the background rates.
    So, yes, there are some species that, if we did nothing 
either for them or against them, they would slip away over 
periods of decades, centuries, millennia. But the kind of 
extinction rate we have now, thousands of species going extinct 
every year, is way out of the ballpark. We haven't seen 
anything like it for 65 million years.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from Colorado, Mr. Tipton.
    Mr. Tipton. Thank you, Mr. Chairman, and I would like to 
thank our panel for taking the time to be here.
    Mr. Jankovsky, I would like to ask a couple of questions 
out of our area. You have raised concern over the technical 
team report on the Greater Sage Grouse. How does that model 
that they are putting forward out of the BLM, how does that fit 
the topography of Garfield County in Colorado?
    Mr. Jankovsky. Well, as far as topography, it doesn't fit 
at all. The technical team report was done and the studies were 
done primarily in Central Wyoming, where you have miles and 
miles of rolling sage brush. And in our part of the State we 
have high plateaus with the sage brush on top, with valleys 
with a mixture of aspen, conifer, juniper, pinyon forest. So it 
is more of a patchwork.
    Mr. Tipton. So, essentially, your--Mr. Daines had talked 
about up in Montana we have very different topography, but 
apparently the BLM is trying to institute a policy of one size 
fits all.
    Mr. Jankovsky. The BLM is trying to institute a policy of 
one size fits all. That is correct.
    Mr. Tipton. Now, one thing that concerns me, as part of 
your testimony you talked about some data that has been 
withheld. By the way, how much money has Garfield County spent? 
Not Federal money, but Garfield County money residents spent.
    Mr. Jankovsky. Compared to the State's, it is not a lot. 
But we have a five-member team, besides myself, working on sage 
grouse. We have our director of community develop as the 
quarterback, so to speak, of that team. We have hired four----
    Mr. Tipton. And what is the dollar amount of the----
    Mr. Jankovsky. About $200,000.
    Mr. Tipton. That is a pretty big number in Western 
Colorado, isn't it?
    Mr. Jankovsky. That is a significant amount of money, yes.
    Mr. Tipton. OK. So you are putting forward local people's 
money to be able to try and address a national agenda that is 
being put forward. And you have requested additional data to 
actually try and help move the ball forward. What data have you 
not received? Why are they not trying to help you achieve that 
goal?
    Mr. Jankovsky. Well, we have asked Fish and Wildlife for 
the historical count data from 1965 to 2007, so we can get an 
idea of how many sage grouse are actually out there, and how 
they were counted. The latest number we had from--I think it 
was 2007 was 535,000 sage grouse, which is a lot of birds. And 
also, between 2001 and 2005, I believe, 200,000 birds were 
harvested through hunting. So, I guess I am concerned that this 
may be a little bit of an abuse of----
    Mr. Tipton. Let's understand this. The Federal Government 
is going to be listing the sage grouse and is issuing hunting 
permits.
    Mr. Jankovsky. Well, the States are issuing hunting 
permits.
    Mr. Tipton. And States are issuing the hunting permits.
    Mr. Jankovsky. Yes.
    Mr. Tipton. A little bit of a conflict in terms of some of 
the policy that is going to be there.
    Let's look at this from maybe that little broader view. 
Western Colorado, approximately 70 percent of the land is 
either Federal, State, or tribal lands right now. Some of the 
critical habitat that is going to be proposed, does that 
encroach onto private lands, as well?
    Mr. Jankovsky. Yes. In our county there are 220,000 acres. 
And of that, 80,000 is Federal land and about another 40,000 is 
private lands with Federal minerals. So it is about 50/50 in 
our county.
    Mr. Tipton. So when that private land is moved into 
potential critical habitat, is that going to impact the ability 
of struggling farmers and ranchers to be able to grow crops, to 
be able to raise animals?
    Mr. Jankovsky. Yes, it will.
    Mr. Tipton. It will. What was the impact when we 
reintroduced some of the predators--riparian, wolves, and the 
like--in terms of impact on the sage grouse species? Any idea?
    Mr. Jankovsky. Well, the impact for us is not so much 
reintroduction as it is primarily ravens and coyotes, they are 
the primary predators in our area.
    Mr. Tipton. Here is one of the issues I think I have with 
the broad brush stroke coming out of the BLM. You talked about 
some of the numbers that are going to be over in Garfield 
County. Let's take 100,000 birds, just as a theoretical 
example. That would be recovery, let's say, in Garfield County. 
You get 110,000. Based on the current BLM policy, are you still 
going to be restricted?
    Mr. Jankovsky. If----
    Mr. Tipton. You would be, wouldn't you?
    Mr. Jankovsky. If the policy goes through as it is through 
the NTT report, we would be restricted.
    Mr. Tipton. So, effectively, what we are doing is we are 
creating a policy where we can't win, even when we win. They 
will not be delisted in Wyoming or in Montana or in portions of 
Colorado, once we have actually achieved recovery. Is that 
accurate?
    Mr. Jankovsky. That is accurate, yes.
    Mr. Tipton. Does that provide a real challenge for you, 
when you are trying to be able to provide for your county, and 
particularly when we see some of the unemployment rates in our 
area?
    Mr. Jankovsky. Yes, it does. If the NTT report went 
through, or if the bird was listed, it would harm our county's 
economy, and we would lose jobs, we would lose tax revenues and 
royalties, as well.
    Mr. Tipton. Is BLM trying to do anything to help resolve 
these conflicts with you?
    Mr. Jankovsky. It has taken a while, because we have been 
so persistent. They have actually started to listen to us, to 
some extent. So we are working through the system.
    Mr. Tipton. I yield back, Mr. Chairman.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from Idaho, Mr. Labrador.
    Mr. Labrador. Thank you, Mr. Chairman. Dr. Noss, you have 
mentioned several times today that it has been amazing that the 
ESA has been as successful as it has been. Why do you keep 
repeating that? Can you further elucidate us on what you mean 
by that?
    Dr. Noss. What I mean is very simply that the threats that 
led to those species being listed in the first place have not 
abated. And most of them have actually gotten worse since the 
Endangered Species Act was passed and those species were 
listed.
    So, the other part of the question is that we haven't had 
the money given to the Fish and Wildlife Service and the 
National Marine Fisheries Service to recover species as the Act 
at least intends in spirit.
    Mr. Labrador. So----
    Dr. Noss. It doesn't give clear guidance, as Mr. Parenteau 
mentioned.
    Mr. Labrador. So you are asking for more money. Could the 
answer just be that nature takes care of itself, that maybe we 
don't know more than nature does?
    You know, your answer is to come from up on top, telling 
nature what it needs to do and telling humans what they need to 
do, as opposed to just realizing--and like Mr. Costa just 
asked--that some species are going to go and some species are 
going to stay, and that is just a regular evolutionary process. 
And you don't know more than everybody else----
    Dr. Noss. This is way out of the ballpark of natural 
evolution.
    Mr. Labrador. Yes.
    Dr. Noss. It is basically--you know, nature is still out 
there, but it has been overwhelmed by the human population and 
our consumption.
    Mr. Labrador. OK. You said, ``According to the''----
    Dr. Noss. They are not----
    Mr. Labrador.--``Society''--you made a statement on June 
19, 2004 that, ``The collective needs of non-human species must 
take precedence over the needs and desires of humans.'' Do you 
still stand by that?
    Dr. Noss. I do.
    Mr. Labrador. Mr. Parenteau, in 1998, a William and Mary 
Law Review article entitled, ``Rearranging the Deck Chairs: 
Endangered Species Act Reforms in an Era of Mass Extinction,'' 
you wrote that, ``Humanity threatens to turn the earth into a 
planet of weeds.'' Do you still stand by that statement?
    Mr. Parenteau. That is what the science suggests.
    Mr. Labrador. That is what the science suggests? And have 
either of you received or represented plaintiffs that have 
received attorneys fees paid for by the Federal Government?
    Mr. Parenteau. I have.
    Dr. Noss. Have I received what kind----
    Mr. Labrador. Payments or represented plaintiffs that have 
received attorneys fees from the Federal Government.
    Dr. Noss. No.
    Mr. Labrador. How many ESA lawsuits have you personally 
been party to, Mr. Parenteau?
    Mr. Parenteau. Representing interests?
    Mr. Labrador. Yes.
    Mr. Parenteau. Didn't do a calculation before I came here, 
but----
    Mr. Labrador. Approximately.
    Mr. Parenteau. Over 40 years? My goodness. Twenty?
    Mr. Labrador. OK, Mr. Parenteau, will the Center for 
Biological Diversity or any other groups you represented 
endorse any legislation that would require public disclosure 
the amount of money it receives from taxpayers through EG and 
the judgment fund?
    Mr. Parenteau. That was for me?
    Mr. Labrador. Yes.
    Mr. Parenteau. I didn't get the question. Do they have to 
report it? Yes. It is 501(c)(3) 1099 form.
    Mr. Labrador. And they report currently how much money they 
receive from the Federal Government?
    Mr. Parenteau. Yes, they do.
    Mr. Labrador. OK. In 2004 you authored an article for the 
Duke Environmental Law Policy Forum entitled, ``Anything 
Industry Wants: Environmental Policy Under Bush II,'' in which 
you lamented that the Bush Administration was using sweetheart 
deals routinely to make major policy decisions without public 
participation and congressional review. You remember that 
article, I assume.
    Mr. Parenteau. I certainly do.
    Mr. Labrador. You say as much in your testimony about sue-
and-settle. But today you are saying that sue-and-settle is an 
old story. Yet I am wondering why you decry this tactic in one 
instance and you defend it in another instance.
    Mr. Parenteau. I decry it in both. And some of the 
sweetheart deals in the Bush Administration were turned aside 
by the courts. So that was my reason for saying that I don't 
think you can charge the courts with an act of collusion in 
these cases.
    One case in particular involving wilderness study areas in 
Utah comes to mind. And there was a sweetheart deal, there was 
no public participation. And the Bush Administration was about 
to cede Federal rights to millions of acres of land in an 
agreement that was about to be entered by the court. 
Environmental groups got wind of it, intervened, and stopped 
it.
    So, I am consistent in saying I don't think the courts are 
handmaidens in implementing sweetheart deals engineered by 
interest groups on either side, whether it is industry or 
environmental groups. I don't think the court is doing that----
    Mr. Labrador. Shouldn't the States and citizens that will 
actually have to bear the burden of these litigations and these 
listings have an opportunity to weigh in on these decisions?
    Mr. Parenteau. They have that opportunity.
    Mr. Labrador. Now, do you feel that this Administration 
is--going back to the Utah example that you just raised, do you 
feel that this Administration's Interior settlements with CBD 
and WEG, without any public involvement, are similarly 
outrageous, or that they constitute the camel's nose under a 
tent, as you have said about the Bush Administration?
    Mr. Parenteau. No, because those agreements set a time 
table for decisionmaking. They make no decisions whatsoever 
about whether species will be listed or not. There will be 
ample opportunity for public review and comment in the 
rulemaking process that has to be done for each and every one 
of the species----
    Mr. Labrador. So when the ultimate decision isn't in 
accordance with your stated views, then it is OK. But when it 
is not in accordance with your stated views, then it is not OK. 
Thank you.
    Mr. Parenteau. Well, that is a misrepresentation of what I 
said.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman. And I appreciate the 
witnesses being here. Having been a former judge, having been 
to conferences with hundreds and hundreds of judges, having 
both Federal and State judge friends, I find it interesting 
somebody could be involved in the litigation process and, like 
under Bush, be concerned about the sue-and-settle process, even 
though some of the litigation or the proposed judgments might 
be turned back, and be just indignant that it is an insult to 
our judges to say that they would rubber-stamp what the parties 
propose.
    I would go through proposed judgments, but I had so many 
judges, both State and Federal, who would say, ``If the parties 
agree, then sign the judgment and let it go.'' And obviously, I 
am glad Dr. Parenteau is here so that he could find out that 
there are many judges that feel that way. If the parties agree, 
sign the judgment, let it go. I am glad that in your 20 cases 
you have not been exposed to that, but I can tell you it does 
happen.
    And then also, I love hearing such optimism, those who want 
to preserve species are open to reform of the Endangered 
Species Act. And I thought that was the case too, until I 
became a freshman in Congress in 2005 and 2006, and I saw our 
Chairman, Richard Pombo, doing everything he could to reach out 
on both sides of the aisle to people on both sides of issues, 
more than two sides, ``Give us your input,'' and he tried to 
take that, and we tried to craft an Endangered Species Act 
reform that everybody could be happy with. But some of us were 
concerned that we had only been able to delist less than 1 
percent of those that we were charged with trying to preserve, 
and that surely there is a better way.
    And when we had information from land owners who said, 
``You will take my land and never give me a dime in return, you 
take it by saying I can never use it again once a species is 
listed as endangered,'' so we thought, OK, a good thing here, 
maybe a good compromise, let's pay the land owner so they 
wouldn't be tempted to what we heard was a shoot, shovel, and 
shut-up type of approach to the endangered species that, if 
somebody was going to go broke if an endangered species was 
found on their land, they would rather kill the endangered 
species, bury it, and keep their mouth shut than lose their 
livelihood and their family go broke and their local community 
have no tax income coming in.
    So, we thought, gosh, maybe--all right. This would be a 
great way to reach out. Let's have the Federal Government pay 
people for their land, because it sure seems like a taking. I 
was shocked, as I am sure you would have been, if you had been 
trying to reach out on both sides of the aisle, as I tried to 
help Chairman Pombo. He had me come over to his office. ``Let's 
call people. Let's see what we can work out.'' And there were 
people who did not want a reform whatsoever.
    And on the night before the vote, really trying to reform, 
people we had reached out to, we had included their amendments 
trying to work out, they crafted a new deal, and were proposing 
that, and said, ``This would be much better.'' It was a slap in 
the face. And not only that, the Sierra Club and all these 
other groups moved into his district and started crafting lies 
about the man so they could defeat him for having the nerve to 
try to reach some kind of agreement on endangered species 
reform.
    We have preserved some species, but I would tell you we can 
do so much better than we have if people would get off their 
ideological horses and get down on the ground with the rest of 
the local people and the local government. Not just State and 
Federal that do some sweet deal, but the local land owners.
    And don't think that we can do so much better if we never 
have private property again. I am telling you this--maybe I 
should have testified, because obviously I have more experience 
with this than people that have been in the courtroom or--and 
not known how judges actually work things, or not known what it 
was to actually craft a deal, Mr. Chairman. But I saw a good 
man destroyed because he reached out and he tried to reform the 
Endangered Species. And I hope it doesn't happen here, because 
we need to preserve better.
    And this final comment, Mr. Chairman. I am struck by how 
many people, liberal luminaries, say they believe in evolution 
and then spend the rest of their life trying to prevent it. 
Thank you, I yield back.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from Florida, Mr. Southerland.
    Mr. Southerland. Thank you, Mr. Chairman. I know that we 
have heard a lot today regarding the partnerships. I know, Dr. 
Noss, you have talked about those and have been in favor of 
those, and say that there are many of those partnerships 
between Federal and State governments working well in the 
implementation of the Endangered Species Act.
    I know that--I wanted just to ask a question that I have 
written down here. You mentioned the need to allow States to 
voluntarily manage listed species. This is to Mr. Ferrell. You 
mentioned the need to allow States to voluntarily manage listed 
species. This management is going on right now between the Fish 
and Wildlife Service of Florida and the Wildlife Conservation 
Commission. In fact, in a recent joint column authored by 
individuals from both agencies, it was called the first of its 
kind.
    However, the Center for Biological Diversity recently filed 
its intent to sue over this arrangement. When a Republican 
Governor and the Obama Administration can agree on such an 
approach, yet is sued by an entity whose headquarters are not 
even in Florida, doesn't that speak volumes to others who want 
to try to engage these partnerships that obviously Dr. Noss has 
agreed with are so beneficial?
    Mr. Ferrell. Absolutely. I mean there is a huge chilling 
effect for the rest of us, if we can't enter into agreements 
that are providing constructive conservation without being 
sued.
    Mr. Southerland. Dr. Noss, you are familiar with this. I 
mean, obviously, you are from Florida.
    Dr. Noss. Yes.
    Mr. Southerland. So, I mean, you are familiar with this 
agreement. Do you approve of this agreement?
    Dr. Noss. I have read the agreement. It has been a few 
months. There are some parts in it that I am worried about.
    You have to remember, the Center for Biological Diversity--
for one thing, I don't agree with everything that they do, but 
they have played an extremely valuable role. There is a 
watchdog. And I think, in the Florida case, those few elements 
of the cooperative agreement that they see as opening up too 
many loopholes, they are concerned about those. And I would 
gather that is why they have sued, although I have not talked 
to anybody in that group about----
    Mr. Southerland. But, I mean, are you in favor of the--I 
mean----
    Dr. Noss. I am in--definitely, in principle, in favor of 
the cooperative agreement. And most of it that I have read I 
think is beneficial, yes.
    Mr. Southerland. I know that--I would like to ask Mr. 
Parenteau. I know you are an advisory board member to the 
Center of Biological Diversity. And I know that Mr. Labrador 
questioned you on your history of lawsuits and so forth. Did 
you, in your capacity as a board member, did you advise the 
Center for Biological Diversity, to pursue this litigation that 
obviously Dr. Noss seems to agree with?
    Mr. Parenteau. No, I did not.
    Mr. Southerland. So you didn't have any--you didn't weigh 
in on this at all.
    Mr. Parenteau. No, my role is very limited to the climate 
work they do.
    Mr. Southerland. OK, OK. I know that it appears to me to be 
almost litigation thuggery when you have an opportunity to--
there are so many limited resources, both at the Federal and 
the State level. I know, Mr. Parenteau, you mentioned that we 
need more resources. I think the American people would say that 
the Department of Justice and the IRS and HHS have had plenty 
of resources, that resources aren't their problem. It seems to 
be an integrity issue.
    I am amazed, as I sit here in this Committee and we talk 
about the Forest Service and all the money they have, and all 
the lands they have, and yet we have more timber rotting in the 
national forests than we harvest. And as a result, every year 
we see homes, hundreds upon hundreds of homes, go up in flames 
because of mismanagement.
    We see NOAA move $300 million out of research to put a 
satellite into space--obviously, with no guarantee that we can 
even get it there, and then come back and ask for more research 
dollars, and saying that we don't have good data.
    And yet, artificial reefs planted in the Gulf of Mexico 
that reef fish call home are not counted in fish surveys 
because they are not considered natural habitat. However, when 
you bring that fish over your transom, that fish is 
automatically counted for sure against your bag limit.
    You look at the GSA and you look at the billions of square 
foot of buildings that are mismanaged or vacant and crumbling 
and turning areas into blight.
    You know, I don't see the money problem here. What I see is 
a Federal Government that, in every area you look at, is too 
large. It cannot be managed. And I would agree that it can't be 
managed, no matter who is in charge. It is too big. And yet, 
you know, we have opportunities for partnerships that make 
sense. And yet we have organizations like the one, sir, that 
you sit on as an advisory committee, that want to continue to 
make sure that we don't take advantage of these kind of 
partnerships.
    I have to tell you, it is very difficult to consider some 
of the things you say, when I know you have been a part of 
these lawsuits. I mean it is amazing. If the money we have is 
limited, then clearly, to gum up the system through the 
litigation thuggery, as I made reference to, is not productive. 
Unless, obviously, your vision is different than common sense 
and efficiency. So----
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from California, Mr. LaMalfa.
    Mr. LaMalfa. Thank you, Mr. Chairman. You know, I come here 
as a freshman from a background in farming in Northern 
California, and our family has been at it for about 82, 83 
years now. And so our deal is that we preserve our assets, we 
preserve the land. And we use it well and wisely, and it has 
been successful all this time.
    So, we like the species, we take care of them. If there is 
a gopher snake going across our dirt road, you stop and wait 
for it to go across, because he has a part in the ecology, too. 
There is a mother mallard going across the county road there--
for some reason the water on the other side of the road is 
better on this side, she wants to take her baby ducklings and 
amble across the road--you stop your truck so she can get 
across, maybe flag other people down so they don't run over the 
baby ducks. So, we are part of this whole ecology there, and we 
do like to care for and preserve it, as farmers. It is smart, 
and it is the right thing.
    But we get hit with all the different agencies and all the 
different groups coming after us all the time, suing. My 
district is very rural, so we have timber, we have mining, we 
have agriculture, farming and ranching. They are good people, 
they just want to figure out how to get along and comply. 
People have been farming and ranching 160 years in some of 
these areas. And all they get is yet another alphabet soup of 
regulators coming in and changing the rules on them. They put 
in fish screens, they re-engineer their waterways. They put up 
fences along creeks to keep the cattle out. They do all these 
things, and it is never good enough.
    So, what you have here is a trust problem. You have an 
issue where they see yet another agency showing up with a badge 
and a gun, trying to have a dialog with them, and all they get 
is more regulations and even threats. When I see something like 
this here that says maybe we need to do a mega-listing at one 
time, you know, 21 species in Texas, 30 in Florida, 24 in 
California, 69 in Hawaii--we might as well just write off 
Hawaii, as far as human activity--that sort of stuff makes 
people shudder, as to the idea that they are going to continue 
doing any kind of human activity. The United States of Habitat 
Preservation, the way it goes.
    And then let's look at the Endangered Species Act success 
for 40 years now. When you have a less-than-3 percent--perhaps 
even 1 percent recovery after all the tens of billion dollars 
spent by government, and probably the hundreds of billions of 
dollars, maybe trillions, of economic activity that has been 
lost over that 40 years, do we call that a success? Because 
there is always a balance between cost and effect, cost and 
benefit ratio. You might say, well, any species can't be lost, 
because that is too high a cost.
    Well, we were talking about the natural inclination things 
a while ago, and a gentleman mentioned over 65 million years. I 
don't know how we can track data of 65 million years of species 
recovery and loss when, at best, we have really only been doing 
this to the intensity we have for maybe for 40 or 50 years with 
data--questionable data in a lot of cases, at that. How in the 
world are we supposed to really know what the trends are for 
more than the last 30 to 40, 50 years of species increase or 
decrease, as opposed to thousands of years, since Europeans 
have only been in North America for a couple hundred years.
    Has anybody really kept track of this? Do we really know? 
But we can do the best we can. And so, if we work with the 
stewards of the land, the farmers, the ranchers, the timber 
people, the miners--for products people still need and are 
still going to have to come from somewhere, we are not using 
any less paper and wood products yet. The forests are 
practically shut down in the Western States, in California. We 
would rather watch them burn, I guess. And then, when you have 
a burn, you have a catastrophe that, as they are so overloaded 
with growth that they become moonscapes afterwards with the 
erosion, all the species are out there dying in the fire. Is 
that successful? Are we getting there with what we are doing? 
We need to take a really big relook at how we do business here.
    And so, we have folks like--I can go to an article that was 
just published in Forbes a couple days ago. If I am being 
redundant with this, please forgive me, I was in an ag meeting. 
But it was in Forbes on the 27th about the Center for 
Biological Diversity. And if you don't mind, I am just going to 
quote a little bit here.
    The quote is by a gentleman named Mr. Kieran Suckling from 
the CBD in talking about organizations' hiring of activities 
who lack science degrees. Does that hurt the CBD's 
effectiveness, he is asked. He says, ``No. It was a key to our 
success. I think the professionalization of the environmental 
movement has injured it greatly. These kids get degrees in 
environmental conservation and wildlife management, come 
looking for jobs in environmental movement. They have bought 
into resource management values and multiple use by the time 
they graduate. I am more interested in hiring philosophers, 
linguists, and poets. The core talent of a successful 
environmental activist is not science and law, it is 
campaigning instinct, which makes it more successful in the 
battle against people that produce.''
    So, it isn't really a scientific-based thing. They don't 
want the scientists. They want people that can campaign and 
fight against what we are talking about with the people in 
rural America. And I can go on and on about that.
    But we to--just a big shift in the way we are thinking 
about that. Because if people in rural America that are the 
producers, they don't trust you all any more in the 
environmental movement, or a lot in the agency movement. We 
want to be able to help and be cooperative, but we can't under 
these rules.
    The Chairman. The time of the gentleman has expired. I want 
to thank the panelists for being here for this hearing, these 
2\1/2\ hours, and I want to thank all of the Members on both 
sides of the aisle for their participation.
    I just want to give you my impression of what I heard 
today. First of all, I heard, as I stated earlier, nobody here 
wants to see a species go extinct. That stands to reason. But 
what apparently the issue is in how you attain that. And what 
we heard on this panel is a number of ways it is being done on 
the local level, whether you are talking about the State level, 
the county level, or the tribal level, there is an effort in 
order to make sure that species do not go extinct.
    And even, we found in cross examination, or some 
questioning, particularly from the gentlelady from Wyoming, 
about groups that are involved with that. And the irony, at 
least as it relates to Wyoming with the questioning that Mrs. 
Lummis had, was there are private groups that are involved with 
this. But the groups that are involved in the litigation that 
we see, especially this major, major settlement case, they are 
not involved in recovery. At least there is no evidence, at 
least in Wyoming, with the testimony we heard. And yet, that 
seems to be a problem.
    Now, on the other hand, I'm very pleased to hear that the 
Act is basically flawed because there is no recovery aspect to 
it, said in testimony of Mr. Parenteau. I am very pleased to 
hear that. Now, the Act hasn't been reauthorized for 25 years. 
That is a quarter of a century. My impression--Mr. Gohmert, I 
think, said it in a different way, but I certainly agree with 
his remarks--is that this is politically driven. And I will say 
the environmental left does not want to sit down.
    So, Mr. Parenteau, I am going to give you some homework. 
You stated in testimony here that you think there are some 
environmental groups that would be willing to sit down and look 
at the recovery aspect and some of the other things that you 
mentioned. I think there is probably some common ground. We 
heard that from the other side of the aisle, certainly from our 
side of the aisle. So my homework to you, Mr. Parenteau, within 
the next 30 days, would you give me a list of those 
environmental groups that would be willing to sit down?
    Mr. Parenteau. With the precondition that the Act as it is 
is not up for weakening.
    The Chairman. Listen.
    Mr. Parenteau. Strengthening, that is the key.
    The Chairman. Listen, the----
    Mr. Parenteau. Strengthening.
    The Chairman. Well, the idea is--see, this is the thing 
that bugs me. All the sudden there is a precondition, and all I 
am asking you, really, is to say which environmental groups 
will want to sit down.
    Mr. Parenteau. I will.
    The Chairman. And you already--and so you have to have a 
precondition before we even agree on something as basic as 
that?
    Mr. Parenteau. Yes----
    The Chairman. There is a problem.
    Mr. Parenteau [continuing]. Because they don't trust this 
Committee to do what is needed for recovery. That is why.
    The Chairman. Wait a minute, wait a minute. The premise 
that we said and what we heard all the way through is nobody 
wants to see a species go extinct. We want to recover a 
species. Who is opposed to that?
    Mr. Parenteau. It is not what we say, Mr. Chairman, it is 
what we do. And what we are doing is driving species----
    The Chairman. Mr. Parenteau, I have the gavel here, and I 
am giving you homework. And if you want to respond to that, 
that is fine. That is fine. In fact, I welcome it. But to 
suggest, when I am just simply asking you for the group that 
would want to talk, and you come up with conditions, and then 
accuse this Committee of not wanting to--or of lack of trust, 
defies logic to me.
    I was in the Congress--not on this Committee at the time--
when Mr. Pombo went through this. And I know Mr. Pombo very, 
very well. He got annihilated in the political process. Nobody 
can deny that.
    All I want from you is, within 30 days, you give me a list 
of environmental groups that would be willing to sit down and 
talk. And maybe, maybe, in the near future we can reauthorize 
this Act to focus on recovery, because that is what the intent, 
in my view, was of the Endangered Species Act right from the 
get-go.
    Again, I want to thank all of you, particularly those that 
came, and particularly those from the Northwest, Ms. Brigham, 
especially testifying on the record here of your efforts to 
recover species and doing it with collaboration with people 
that are affected by that.
    With that, if there is no further business to come before 
the Committee, the Committee stands adjourned.
    [Whereupon, at 12:36 p.m., the Committee was adjourned.]

    [Additional material submitted for the record follows:]

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

    The title of this hearing suggests that state and local governments 
have forever been successful stewards of species, and that federal 
protection of biodiversity under the Endangered Species Act has only 
produced protracted litigation. Nothing could be farther from the 
truth.
    Before the ESA granted federal protection to imperiled fauna and 
flora, state wildlife management policies had pushed species like the 
American alligator, gray wolf, and grizzly bear to the brink of 
extinction. Now, because of the ESA, those species and many others have 
either recovered, or are on that path.
    All Americans, no matter if they live in Springfield, Massachusetts 
or Springfield, Missouri; Portland, Maine or Portland, Oregon, have a 
stake in conserving biodiversity. From this bank of genetic material we 
can draw cures for diseases, industrial innovations, and improvements 
to agriculture to enhance our economy and our quality of life.
    The ESA guards this bank, and ensures that rather than drawing down 
our principle, we will accrue interest by making economic development 
compatible with the survival and restoration of species. Under the ESA, 
state and local governments can assist in, and even lead these efforts 
within their borders.
    However, animals and plants do not recognize political boundaries: 
we need the ESA because we need assurance that when a species moves 
from one state to another it receives a consistently high level of 
protection and not disparate treatment that harms its chances for 
survival. States lack the ability to address wildlife conservation 
outside their borders, as well as the ability to appropriately account 
for the legitimate species conservation interests of people who live in 
other states.
    The ESA is one of the most effective and popular environmental laws 
not only in our country, but in the world. Even in the face of massive 
and ongoing loss of habitat to haphazard development, 99 percent of 
species afforded the Act's protections over the past 40 years are still 
surviving today. Scientists estimate that more than 170 species would 
have gone extinct over that period if not for the ESA. We need to keep 
the ESA strong and give appropriate support to the federal agencies 
that are working diligently with states to facilitate development 
projects while accounting for biodiversity conservation.

                                 
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