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





   ESA DECISIONS BY CLOSED-DOOR SETTLEMENT: SHORT-CHANGING SCIENCE, 
     TRANSPARENCY, PRIVATE PROPERTY, AND STATE AND LOCAL ECONOMIES

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

                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                      Thursday, December 12, 2013

                               __________

                           Serial No. 113-55

                               __________

       Printed for the use of the Committee on Natural Resources


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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
            PETER A. DeFAZIO, OR, Ranking Democratic Member

Don Young, AK                        Eni F. H. Faleomavaega, AS
Louie Gohmert, TX                    Frank Pallone, Jr., NJ
Rob Bishop, UT                       Grace F. Napolitano, CA
Doug Lamborn, CO                     Rush Holt, NJ
Robert J. Wittman, VA                Rauul M. Grijalva, AZ
Paul C. Broun, GA                    Madeleine Z. Bordallo, GU
John Fleming, LA                     Jim Costa, CA
Tom McClintock, CA                   Gregorio Kilili Camacho Sablan, 
Glenn Thompson, PA                       CNMI
Cynthia M. Lummis, WY                Niki Tsongas, MA
Dan Benishek, MI                     Pedro R. Pierluisi, PR
Jeff Duncan, SC                      Colleen W. Hanabusa, HI
Scott R. Tipton, CO                  Tony Caardenas, CA
Paul A. Gosar, AZ                    Steven A. Horsford, NV
Rauul R. Labrador, ID                Jared Huffman, CA
Steve Southerland, II, FL            Raul Ruiz, CA
Bill Flores, TX                      Carol Shea-Porter, NH
Jon Runyan, NJ                       Alan S. Lowenthal, CA
Markwayne Mullin, OK                 Joe Garcia, FL
Steve Daines, MT                     Matt Cartwright, PA
Kevin Cramer, ND                     Vacancy
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Vacancy

                       Todd Young, Chief of Staff
                Lisa Pittman, Chief Legislative Counsel
                 Penny Dodge, Democratic Staff Director
                David Watkins, Democratic Chief Counsel
                                 ------                                











                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Thursday, December 12, 2013......................     1

Statement of Members:
    DeFazio, Hon. Peter A., a Representative in Congress from the 
      State of Oregon............................................     6
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     3
        Prepared statement of....................................     4

Statement of Witnesses:
    Albrecht, Carl, CEO, Garkane Energy Cooperative, Inc., Loa, 
      Utah.......................................................    30
        Prepared statement of....................................    32
    Evans, Brock, President, Endangered Species Coalition, 
      Washington, 
      DC.........................................................    23
        Prepared statement of....................................    25
        Questions Submitted for the record.......................    27
    Foley, Greg A., Executive Director, Division of Conservation, 
      Kansas Department of Agriculture, Topeka, Kansas...........    12
        Prepared statement of....................................    14
    Maxwell, Megan, Consulting Biologist, Broomfield, Colorado...    33
        Prepared statement of....................................    35
        Questions Submitted for the record.......................    72
    Roman, Dr. Joseph, Rubenstein School of Environment and 
      Natural Resources, University of Vermont, Burlington, 
      Vermont....................................................    16
        Prepared statement of....................................    17
        Questions Submitted for the record.......................    21
    Sikes, Jeff, Legislative Director, Association of Arkansas 
      Counties [AAC], Little Rock, Arkansas......................     9
        Prepared statement of....................................    11

Additional Material Submitted for the Record:
    Beebe, Mike, Governor, State of Arkansas, Letter submitted 
      for the record.............................................     9
    Salvo, Mark N., Director, Federal Lands Conservation, 
      Defenders of Wildlife, Letter submitted for the record.....   103
                                     


 
  OVERSIGHT HEARING ON ESA DECISIONS BY CLOSED-DOOR SETTLEMENT: SHORT-
 CHANGING SCIENCE, TRANSPARENCY, PRIVATE PROPERTY, AND STATE AND LOCAL 
                               ECONOMIES

                              ----------                              


                      Thursday, December 12, 2013

                     U.S. House of Representatives

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The committee met, pursuant to notice, at 10:04 a.m., in 
room 1324, Longworth House Office Building, Hon. Doc Hastings 
[Chairman of the committee] presiding.
    Present: Representatives Hastings, Gohmert, Bishop, 
Lamborn, Fleming, McClintock, Thompson, Lummis, Benishek, 
Duncan, Tipton, Labrador, Southerland, Flores, Daines, LaMalfa, 
McAllister, DeFazio, Holt, Grijalva, Costa, Huffman, Ruiz, 
Lowenthal, and Garcia.
    Also present: Representatives Huelskamp, Womack, and 
Stewart.
    The Chairman. The committee will come to order. The 
Committee on Natural Resources is meeting today to hear 
testimony on ``ESA Decisions by Closed-Door Settlement: Short-
Changing Science, Transparency, Private Property, State, and 
Local Economies.''
    Now, before I begin our statements of the Chairman and 
Ranking Member and the witnesses, I ask unanimous consent that 
Mr. Womack, from Arkansas, Mr. Huelskamp, from Kansas, and Mr. 
Stewart, who, ironically, last time we met, was a member of the 
committee, but is now not a member of the committee, be allowed 
to sit on the committee and participate in these hearings.
    [No response.]
    The Chairman. And, without objection, so ordered.
    Before I start my opening statement, I want to make an 
announcement of where we are, as we are winding down this first 
session of this Congress. This is the last hearing of the year. 
And, as those that are gathered here know, it is part of this 
committee's continuing view of the Endangered Species Act, and 
how the law would be improved to prioritize recovery and 
science over lawsuits and closed-door settlements. This effort 
will continue in the near year, whereas my expectation that the 
committee will begin to advance common-sense ESA improvement 
legislation that will truly benefit species and the people.
    Second, in September of this year, the committee completed 
its eighth hearing on renewing the Magnuson-Stevens Fishery 
Conservation and Management Act. I am announcing today that, 
within a week, a discussion draft of the reauthorization bill 
will be released for public review and input. This will be 
followed by a hearing in January on this legislation.
    Other priority matters that this committee will address 
next year include protecting and expanding American hydropower; 
pursuing solutions to build more water storage; and a committed 
focus on restoring the promise made to our rural counties and 
schools by ensuring responsible, active management of our 
national forests.
    Over the past year, great patience has been shown in 
conducting several oversight requests to the Interior 
Department and other agencies. What is sought is transparency 
information and accountability on decisions and actions made by 
the Department and other agencies. To date, the Interior 
Department's response has been far less than satisfactory, in 
my view. And in several instances, our questions appear to be 
met with deliberate slow-walking by their attorneys.
    This is not acceptable. And, after many months of patient 
persistence, unless prompt compliance comes very soon, more 
direct steps will be taken to ensure that the Department 
fulfills its oversight obligations to this committee and to 
Congress.
    Finally, it was my hope that a last mark-up of the year 
could occur this week. Regrettably, that wasn't possible for 
tomorrow. We will now look ahead to January to continue the 
hard work begun earlier this year. Over the past 12 months, 
this committee has continued its work in workhorse ways. And 
let me just give you some statistics.
    The House has passed 50 bills from this committee, each 
with bipartisan support. This includes 41 bills passed under 
the suspension process, which means that each of these bills 
have broad, overwhelming, and bipartisan support in the House. 
More than 30 of these measures await action in the Senate. A 
number have had Senate hearings, and several have been reported 
from the Senate committees, and await action by the full 
Senate. And, between our work and the Senate, 10 bills have 
been signed into law by the President.
    As we enter next year, it is my intent to continue to work 
to achieve enactment of common-sense solutions and legislation. 
Now, let me give you two examples. In January, it is my 
specific intent to advance legislation advocated by our 
colleague on the committee, Mr. Benishek, to resolve a long-
standing situation in northern Michigan, by recognizing 
boundaries and establishing a Sleeping Bear Dunes Wilderness 
Area. Dr. Benishek has been working overtime to get this 
accomplished. Both he and his senior Senator Levin have this as 
a priority. And I am committed to working with both of them, 
because I believe it is possible to reach an appropriate 
resolution that accomplishes their collective goals.
    There is also a public lands and wilderness legislation 
that our former colleague, Mr. Amodei, who was just made a 
member of the Appropriations Committee, has been tirelessly 
working to advance. Due to his persistent efforts, action will 
occur on that legislation also in January.
    Now, I know that these are not easy issues. They require 
careful consideration and thoughtful action to ensure that they 
are done right. That is how we have approached our work on this 
committee, and we will continue to do so in January and next 
year.
    I recognize my colleague from Michigan, Mr. Benishek.
    Dr. Benishek. Thank you, Mr. Chairman. Chairman Hastings, I 
would like to thank you and Ranking Member DeFazio and the 
committee staff for your commitment to moving H.R. 163, the 
Sleeping Bear Dunes National Lakeshore Conservation and 
Recreation Act, forward next year.
    As you know, this legislation was created by my 
constituents. They came together in response to a plan 
originally created by the National Park Service that they felt 
didn't meet the needs of the local area. So they came up with 
something better, a plan that guaranteed beach access, and 
guaranteed the needs of the local community.
    Again, thank you for continuing to work with me and my 
constituents on this effort. I appreciate it.
    The Chairman. I thank the gentleman, and I really want to 
congratulate his persistence on this issue. It is a difficult 
issue, as I know the gentleman knows.
    With that, now I will recognize myself for my opening 
statement.

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

    The Chairman. Two years ago, the Obama administration's 
Interior Department signed settlement agreements with two 
litigious groups, in their words, ``to make implementation of 
the ESA less complex, less contentious, and more effective.''
    In August, the Director of the Fish and Wildlife Service 
testified before this committee that ``settlement agreements 
are often in the public's best interest because the Service has 
no effective legal defense to most deadline cases, and because 
settlement agreements facilitate issue resolution as a more 
expeditious and less costly alternative to litigation.''
    This, then, raises several questions. Are these ESA 
settlements, and others negotiated by Federal agencies behind 
closed doors with certain groups truly in the public's best 
interest? Have they made implementation of ESA less contentious 
and less costly? Are expeditious ESA listings allowing adequate 
involvement of States, local governments, and private 
landowners? Have they encouraged use of transparent and best 
science and commercial data in ESA decisions? Have they led to 
robust economic impact analyses of ESA listings on communities? 
Have they discouraged litigation? These are legitimate 
questions.
    Here are some of the facts of what these settlements have 
produced in the 2 years. The current number of proposed and 
final ESA listings has increased by 210, and the amount of 
proposed and final critical habitat has increased by more than 
2 million acres, and that, those settlements, potentially 
affect more than 2,000 river miles nationwide.
    The Interior Department has accepted 85 percent of the new 
listing petitions it received, including petitions seeking more 
than 140 new listings to the Fish and Wildlife Service, and the 
National Marine Service. Selective use of ESA data in science 
and peer review conflicts of interest has clouded the Obama 
administration's adherence to data quality and transparency 
requirements.
    New executive orders and regulations are reducing robust 
economic impact analyses, and could alter how critical habitat 
is analyzed.
    And litigants to the settlements are continuing to file 
lawsuits. In just the past year, the Center for Biological 
Diversity has threatened or filed over a dozen new lawsuits 
against the Interior Department, either because they didn't 
list fast enough, or because the Center for Biological 
Diversity didn't agree with Interior's decision not to list.
    Undoubtedly, of course, some believe cramming hundreds of 
obscure species into the ESA list under deadlines and blocking 
off huge swaths of land because of the settlements, some might 
call those successes. But many areas of the country tell a 
different story of how these policies are impacting their 
communities, their economies, and, ultimately, the species 
considered.
    While the Service recently endorsed a plan submitted by 
Texas, Oklahoma, Kansas, Colorado, and New Mexico to conserve 
the Lesser Prairie Chicken, there is little assurance that the 
Service won't list the prairie chicken anyway. The Service has 
refused requests by dozens of counties and other interests for 
additional time to factor new data and review other plans, 
insisting it must stick to a self-imposed settlement deadline 
of March 2014.
    In the coming months, according to settlement-imposed 
deadlines, the Bureau of Land Management and Forest Service 
will submit plans covering over 250,000 square miles in 11 
Western States to the Service to decide whether they are 
adequate to avoid listing of the Greater sage grouse. These 
plans are based on seriously flawed Federal technical documents 
that lack transparency. Nevertheless, the Service has charged 
ahead with proposing listing of sage grouse in portions of 
Nevada, California, Colorado and Utah.
    Over 2,000 river miles in a dozen Midwestern and Southern 
States are likely to be impacted as a result of the Service's 
listing of mussels and other fish species. These listings will 
impact over 40 percent of Arkansas alone, including 
agriculture, timber, and energy producers, and small 
businesses.
    In my home State of Washington, listing is imminent for a 
plant called the bladderpod, although DNA shows it is not 
warranted, and proposed gopher listings are impacting local 
economies and one of the greatest military installations in the 
world in my State. These are some impacts from the settlements. 
The listing-by-litigation approach is not working for people 
and species.
    So, I look forward to hearing from our witnesses to 
continue a frank and open discussion on how to improve the law.
    [The prepared statement of Mr. Hastings follows:]
 Prepared Statement of the Honorable Doc Hastings, Chairman, Committee 
                          on Natural Resources
    Two years ago, the Obama administration's Interior Department 
signed settlement agreements with two litigious groups, in their words, 
``to make implementation of the ESA less complex, less contentious and 
more effective.''
    In August, the Director of the Fish and Wildlife Service testified 
before this committee that ``settlement agreements are often in the 
public's best interest because [the Service] has no effective legal 
defense to most deadline cases, and because settlement agreements 
facilitate issue resolution as a more expeditious and less costly 
alternative to litigation.''
    This raises several questions: are these ESA settlements, and 
others negotiated by Federal agencies behind closed doors with certain 
groups, truly in the public's ``best interest?'' Have they made 
implementation of ESA ``less contentious'' and ``less costly?'' Are 
``expeditious'' ESA listings allowing adequate involvement of States, 
local governments, and private landowners or aiding efforts to avoid 
listings or to delist species? Have they encouraged use of transparent 
and best science and commercial data in ESA decisions? Have they led to 
robust economic impact analyses of ESA listings on communities? Have 
they discouraged litigation?
    Here are some facts of what these settlements have produced in just 
2 years:

   The current number of proposed and final ESA listings has 
        increased by 210, and the amount of proposed and final critical 
        habitat has increased by more than 2 million acres and more 
        than 2,000 river miles nationwide.
   The Interior Department has accepted 85 percent of the new 
        listing petitions it received, including petitions seeking more 
        than 140 new listings to the Fish and Wildlife Service, and the 
        National Marine Fisheries Service.
   Selective use of ESA data and science and peer review 
        conflicts of interest has clouded the Obama administration's 
        adherence to data quality and transparency requirements.
   New executive orders and regulations are reducing robust 
        economic impact analyses, and could alter how critical habitat 
        is analyzed.
   Litigants to the settlements are continuing to file 
        lawsuits. In just the past year, the Center for Biological 
        Diversity has threatened or filed over a dozen new lawsuits 
        against the Interior Department, either because they didn't 
        list fast enough, or because the Center for Biological 
        Diversity didn't agree with Interior's decision not to list.

    Undoubtedly, some believe cramming hundreds of obscure species onto 
the ESA list under deadlines and blocking off huge swaths of land 
because of the settlements are ``successes,'' but many areas of the 
country tell a different account of how these policies are impacting 
their communities, their economies, and ultimately, the species.
    While the Service recently ``endorsed'' a plan submitted by Texas, 
Oklahoma, Kansas, Colorado and New Mexico to conserve the Lesser 
Prairie Chicken, there is little assurance that the Service won't list 
the prairie chicken anyway. The Service has refused requests by dozens 
of counties and other interests for additional time to factor new data 
and review other plans, insisting it must stick to its self-imposed 
settlement deadline of March 2014.
    In coming months, according to settlement-imposed deadlines, the 
Bureau of Land Management and Forest Service will submit plans covering 
over 250,000 square miles in 11 Western States to the Service to decide 
whether they are adequate to avoid listing of the Greater Sage Grouse. 
These plans are based on seriously flawed Federal technical documents 
that lack transparency. Nevertheless, the Service has charged ahead 
with proposing listing of sage grouse in portions of Nevada, 
California, Colorado and Utah.
    Over 2,000 river miles in a dozen Midwestern and Southern States 
are likely to be impacted as a result of the Service's listing of 
mussels and other fish species. These listings will impact over 40 
percent of Arkansas alone, including agriculture, timber, and energy 
producers, and other small businesses.
    In Washington, listing is imminent for a plant called the 
bladderpod, though DNA shows it is not warranted, and proposed gopher 
listings are impacting local economies and one of the largest military 
installations in the world.
    These are some impacts from the settlements. The ``listing-by-
litigation'' approach is not working for people and species. I look 
forward to hearing from our witnesses and to continuing a frank and 
open discussion on how to improve this law.
                                 ______
                                 
    The Chairman. And before I recognize the Ranking Member for 
his opening statement, I want to recognize the newest member of 
our committee, Mr. Vance McAllister, who just walked in--timing 
is everything, you notice. I welcome him to the committee. His 
background, and coming from the great State of Louisiana, I 
know he will add a great deal to our deliberations. So welcome, 
Mr. McAllister, to the committee.
    And, with that, I recognize the Ranking Member, Mr. 
DeFazio.

  STATEMENT OF THE HON. PETER A. DeFAZIO, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF OREGON

    Mr. DeFazio. Thank you, Mr. Chairman. I am interested to 
hear there will be a proposal on reauthorizing Magnuson 
available in a week. I would hope perhaps, if your draft is 
near done, you might share it. We haven't seen it. Because I 
think this is something that can be worked out on a bipartisan 
basis, and doesn't need to be one side of the aisle, and 
doesn't need to be contentious. So I am hopeful that, before it 
is released to the general public, that we might have an 
opportunity to look at it.
    I have talked with the Secretary of the Interior. She has 
expressed a willingness to take a phone call from you at any 
time, to provide any specific information that is necessary. 
The Department has been basically, devoting a lot of resources 
to tens of thousands of pages of documents that, as far as I 
can tell, no one bothers to read, once they have been brought 
down here to the Hill. They are all in a closet somewhere.
    I don't know what the objective is. If we have some very 
specific objectives or concerns regarding the Interior 
Department and lack of transparency on a particular issue, I am 
sure on a bipartisan basis we can pursue those things. But to 
mire Interior down is actually going to slow them down in many 
things that we agree upon that we want to get done out there, 
the myriad activities that Interior is involved in. So, I think 
that they have been more than forthcoming. And if there is 
anything in particular that reaches a conclusion or a point 
that isn't just some sort of giant fishing expedition for tens 
of thousands of pages of documents that no one is going to read 
or compile, then I am sure we could get that. Again, I think we 
could do these things better.
    And then, to the case in point, which is Endangered Species 
Act reform, I have been on the committee 27 years now, as of a 
few weeks from now. And over that time we have visited a couple 
of times meaningful updates to the Endangered Species Act. 
Republican Wayne Gilchrest from the Eastern Shore of Maryland 
had a bipartisan proposal which I supported some number of 
years ago. George Miller at one point had a bipartisan 
proposal, which I supported. There are ways to continue the 
objectives of the Endangered Species Act that would be less 
time consuming, less litigious, less burdensome, particularly 
as we move more toward looking at larger landscape management 
and ecosystem approaches, as is being done with the Lesser 
Prairie Chicken in a cooperative mode with a number of States. 
And I would hope that those are the kind of reforms we are 
going to look at in the law.
    Listing species one at a time, sometimes in conflict, one 
with another--most famously, I think, the Kootenai sturgeon--in 
an area that needs certain water types of flows to spawn. But 
when those flows are created it creates conflicts for other 
endangered species downstream. We have got to work these things 
out in a way that is a more general ecosystem-based approach to 
management, so we don't create inherent conflicts and 
imponderables, in terms of accomplishing the goals of the act, 
which I would hope we all still share. We don't want to see 
species go extinct.
    So, this is the sixth hearing on this issue. I am hopeful 
that, in a collaborative way, we can look at some reforms that 
will make the act work better to achieve the goals that were 
set forth 40 years ago. It is a 40-year-old law. And we do need 
to recognize more modern science and different approaches to 
accomplish those goals. Thank you, Mr. Chairman.
    The Chairman. Will the gentleman yield before his time runs 
out? Let me just quickly respond to the oversight aspect that I 
had mentioned in my statement and the gentleman responded to.
    I welcome Secretary Jewell--and we had a meeting and she 
said, ``Give me a call on these things,'' and I welcome that. 
And, frankly, I thought that would be a page-turner in trying 
to get information. It is very hard to come to conclusions when 
you don't get the information. That is why we are asking for 
the information.
    But I have to say to the gentleman this will obviously be a 
work in progress. But after that meeting with Secretary Jewell, 
and after giving her a heads up on information that she 
requested, we still haven't been getting it. And there is 
always speculation about what we are looking for, but when we 
are asking for something specific, if we get that then we can 
make a determination.
    So I just wanted to respond briefly. This is a work in 
progress, and I would certainly welcome the gentleman, as we 
move forward. I thank the gentleman for yielding.
    Mr. DeFazio. Well, if I could reclaim my time, even though 
it has expired, if there is a particular specific request or 
objective that I am--I would be happy to be made aware of it, 
and also help expedite things with Interior. But the feeling 
is--so far they have gotten 50,000 pages of documents, and I 
don't know who has reviewed those 50,000 pages, and what it is 
we need in addition.
    So, I would like to work together on that and relieve them 
of some burden so that she can focus on other issues that are 
of mutual concern. So thank you, Mr. Chairman.
    The Chairman. I will take that request in the spirit that 
it is given, and hopefully we can get what our desired outcome 
is.
    Now I want to welcome the first panel in front of us. And 
let me go through briefly and recognize the panelists. And then 
we will have individual introductions. We have, first, Mr. Jeff 
Sikes, who is a Legislative Director for the Association of 
Washington Counties, located in Little Rock, Arkansas; Mr. Greg 
Foley, who is the Executive Director of the Division of 
Conservation for the Kansas Department of Agriculture in 
Topeka, Kansas; Dr. Joe Roman, from the Rubenstein School of 
Environment and Natural Resources at the University of Vermont 
in Burlington, Vermont; Mr. Brock Evans, President of the 
Endangered Species Coalition, based here, in Washington, DC; 
Mr. Carl Albrecht, CEO and General Manager of Garkane Energy, 
located in Loa, Utah; and Megan Maxwell, an independent 
biologist from Broomfield, Colorado.
    Before we start the introductions, let me explain how the 
timing light works there. You all submitted written testimony 
to us, and that will all be part of the record. And so I would 
ask you to keep your oral remarks to within 5 minutes, and that 
is what that timer is in front of you. Now, there are three 
lights on the timer: green light, yellow light, and red light. 
When the green light is going, that means that you are doing 
wonderfully well. When the yellow light comes on, it means you 
have a minute to go before the 5 minutes is over. And when the 
red light comes on--well, try not to get to the red light, if I 
could just say it that way.
    So, with that, I want to thank you. And I will recognize 
now our colleague from Arkansas, Mr. Womack, for the purposes 
of an introduction. Mr. Womack?
    Mr. DeFazio. Mr. Chairman?
    The Chairman. Yes?
    Mr. DeFazio. If I could, just for one second?
    The Chairman. Go ahead.
    Mr. DeFazio. There is a hearing in Aviation, which--I have 
a couple of pressing questions--I am going to head to. No 
disrespect to the witnesses. I have read your testimony.
    And I will be back with some questions, Mr. Chairman, but I 
do have to get down there for a bit. So thank you.
    The Chairman. I recognize that. There are always conflicts 
going on. And so you don't need my excuse, but you are OK, you 
can go.
    Mr. Womack is recognized.
    Mr. Womack. Thank you, Mr. Chairman. I, first of all, want 
to personally thank you for holding a hearing on the impact 
these ESA designations could have on Arkansans and citizens 
across America.
    The critical habitat designation for rabbitsfoot mussels 
and neosho muckets will affect nearly half of my State's 
surface area and, simply put, jeopardizes the livelihood of 
Arkansans. Today I am proud to say that every member of the 
Arkansas delegation is well versed on the issue, thanks in 
large part to Jeff Sikes, who I am proud to introduce to this 
distinguished committee this morning.
    As the Association of Arkansas Counties' Legislative 
Director, Jeff sounded the alarm on the true and possibly 
devastating impact this critical habitat designation will have 
on a startling number of Arkansans and their communities. Jeff 
was also responsible for building the broad coalition of 
leaders throughout Arkansas who are committed to standing up 
for the rights of the people and businesses of our great State.
    I look forward to Jeff's testimony today. For while he is 
an expert of the science and legality of the designation, he 
also speaks with common sense and is acutely aware of the 
designation's real-life implications.
    Mr. Chairman, before I yield back, I have in my possession 
a letter from Arkansas Governor Mike Beebe that echoes our 
concerns, as well. And I would like to seek unanimous consent 
to enter his letter into the record for today's proceedings.
    [No response.]
    The Chairman. Without objection, that letter will be part 
of the record.
    [The letter from Governor Beebe submitted by Mr. Womack for 
the record follows:]
            Letter Submitted for the Record from Mike Beebe
                                          Governor,
                                         State of Arkansas,
                                                 December 10, 2013.
The Honorable Sally Jewell,
Secretary,
U.S. Department of the Interior,
1849 C Street, NW.,
Washington, DC 20240.

Re: Proposed Critical Habitat Designation, Docket ID No. FWS-R4-ES-
2013-0007

    Dear Madame Secretary:

    I am writing in regard to the U.S. Fish and Wildlife Service's 
proposed critical habitat designation for the neosho mucket and 
rabbitsfoot mussels. The proposed rule would designate 769.2 river 
miles as critical habitat. The targeted watershed covers approximately 
42 percent of Arkansas's entire geographic area. I am concerned about 
the adverse impact this designation, as recommended, could have, not 
only on the 31 counties directly concerned, but on my entire State. 
More than 90 percent of the property through which the affected river 
and stream flow is privately owned. That means thousands of Arkansas 
farmers, livestock producers, business owners, and individuals will be 
negatively impacted.
    A coalition of well-respected Arkans as entities, led by the 
Association of Arkansas Counties [AAC], representing a wide range of 
public and private stakeholders, filed an official comment with the 
Service on October 28, 2013. Based on sound scientific research, the 
coalition recommends that the Service reduce its proposed critical 
habitat area by about 38 percent. The group is not recommending the 
elimination of critical habitat, simply a more realistic designation. 
The coalition also points out that the Service's economic analysis, 
based solely on agency-to-agency interaction, does not weigh the 
substantial private costs to be incurred. It drastically underestimates 
the potentially devastating effect the change could have on numerous 
small businesses and industries. Many, including agriculture, are vital 
economic drivers in our State.
    I support the recommendations made by the AAC, and I urge you to 
reconsider this sweeping designation that will be a hindrance making 
life difficult for so many Arkansans. I am confident that a narrower 
critical habitat designation can be reached--one that will adequately 
protect these species, without unnecessarily jeopardizing the 
livelihoods of many Arkansans. Thank you for your consideration.
            Sincerely,
                                                Mike Beebe.
                                 ______
                                 
    Mr. Womack. And with that, Mr. Chairman, again, our thanks 
for holding the hearing. And I yield back my time.
    The Chairman. All right. Mr. Sikes, you are recognized for 
5 minutes. Thank you very much.

 STATEMENT OF JEFF SIKES, LEGISLATIVE DIRECTOR, ASSOCIATION OF 
         ARKANSAS COUNTIES [AAC], LITTLE ROCK, ARKANSAS

    Mr. Sikes. Chairman Hastings, well, was Ranking Member 
DeFazio, and committee members, good morning. I am Jeff Sikes, 
Legislative Director for the Association of Arkansas Counties. 
I appreciate the honor and the privilege of testifying here 
today on a matter of great concern in my home State, namely the 
potential listing of over 40 species under the Endangered 
Species Act with a required designation of critical habitat for 
each. As I speak to you today, I represent not only the 75 
counties of Arkansas, but also a number of public and private 
stakeholders who have come together to push back against this 
historic expansion of the number of listed species under the 
Endangered Species Act.
    This potential expansion--if we had all 40 listed, it quite 
literally could cover our entire State with critical habitat 
units. Now, the groups that I represent, I have got them in my 
comments, but they are the Arkansas State Chamber of Commerce, 
the Arkansas Environmental Federation, Farm Bureau, timber 
producers, et cetera. All stakeholders are going to be impacted 
greatly by this.
    Now, as we speak, Arkansas has actually submitted comments 
on two of these species, the neosho mucket and the rabbitsfoot 
mussel, who, combined, have this potential of putting 42 
percent of our State's watershed into critical habitat.
    Now, for the record, we do not oppose the listing of 
candidate species, so long as that listing is supported by good 
science. However, we heartily oppose the designation of 
critical habitat unless absolutely necessary. As I am sure most 
Members know, it is the designation of critical habitat that 
can give the green light to a devastating environmental 
litigation.
    Now, currently, we in the South and Southeast find 
ourselves dealing with the results of a settlement between the 
Department of Justice and various environmental groups, and it 
is a court order mediation that was completely secret in nature 
until the results of it were quietly rolled out. And we only 
found out about this, the settlement, after a business 
associate out West who had some experience with the Endangered 
Species Act alerted me to the settlement and, more importantly, 
actually educated me, took the time to educate me, what the 
ramifications were of this settlement. And if we hadn't had 
that, no one in the South, or no one in Arkansas, no one I have 
spoken to in the South or Southeast would have had any idea 
that this was going on. Clearly, that process is broken, and I 
think we need to fix it.
    One of the things I would suggest is that in these cases 
where you do have a settlement, or you do have a lawsuit, that 
the education provided by the Service regarding those--that 
settlement be proactive, better rounded, and not limited to 
waiting for some request from land owners who can't make the 
request if they don't know what is going on.
    And then, currently, it is the position, the official 
position of the Service, that a land owner has no reason to 
fear a listing of critical habitat or a critical habitat 
designation, unless there is some sort of Federal nexus, unless 
they take some money from the Federal Government. And that is 
true, as far as it goes. But the reality is the real 
devastating impact of ESA is third-party litigation. And that 
has devastated the West, and now it is set to devastate the 
South and Southeast. And our people in Arkansas will just never 
know what hit them until they wake up one day and they can't 
use their property any more for what they bought it for.
    And this leads me to my final point. We absolutely must 
change the way the Service performs its economic analysis prior 
to designation of critical habitat. I am not an economist, but 
as I understand it the Service currently utilizes an 
incremental model as opposed to a more inclusive cumulative 
model to determine the economic impact. And the upshot of this 
method is it only measures the cost of government agencies 
talking to each other, consulting with one another during the 
20-year life of the critical habitat designation. That is just 
way off.
    To give you an example of what I--well, the upshot of that 
is what it results in is a ridiculously low and misleading 
economic analysis. And when you look at--whoever would read 
that would just be completely misled as to what the real 
effects were going to be. And to give you an example of what I 
mean, their economic analysis for the neosho mucket and 
rabbitsfoot mussel was $220,000 a year, spread across 12 
States, $20,000 a year each for 20 years for $4.4 million. Our 
economist, who teaches at the University of Arkansas, projected 
$20 to $50 million, just in Arkansas alone during that same 
period. That has to be fixed. It can be fixed by a rule change, 
not a law. And we would hope that you all would take that up.
    [The prepared statement of Mr. Sikes follows:]
Prepared Statement of Jeff Sikes, Legislative Director, Association of 
             Arkansas Counties [AAC], Little Rock, Arkansas
    Chairman Hastings, Ranking Member DeFazio and committee members 
good morning, I am Jeff Sikes, Legislative Director for the Association 
of Arkansas Counties. I appreciate the honor and privilege of 
testifying here today on a matter of great concern in my home State, 
namely the potential listing of over 40 species under the Endangered 
Species Act [ESA] with a required designation of critical habitat for 
each.
    As I speak to you today, I represent not only the 75 counties of 
Arkansas, but also a number of public and private stake holders who 
have come together to push back against this historic number of 
potential listings and designation of critical habitat that has put our 
State, and many States in the South, in danger of becoming, quite 
literally, covered by critical habitat units. These stakeholders 
include: Arkansas State Chamber of Commerce; Arkansas Environmental 
Federation; Arkansas Association of Conservation Districts; Arkansas 
Forestry Association; Arkansas Farm Bureau; Arkansas Timber Producers 
Association; Arkansas Poultry Federation; Arkansas Independent 
Producers and Royalty Owners; Agriculture Council of Arkansas; Camp 
Ozark; Arkansas Cattlemen's Association; Energy and Environmental 
Alliance of Arkansas; and Cargill Foods, Inc.
    As we speak, Arkansas has submitted comments on two of these 
species, the neosho mucket and the rabbitsfoot mussel, who, combined, 
have the potential of putting 42 percent of our State's watershed into 
critical habitat.
    While we do not oppose the listing of candidate species, whose 
listings are supported by good science, we heartily oppose the 
designation of critical habitat unless absolutely necessary. As I'm 
sure most of the Members know it is the designation of critical habitat 
that can give the green light to devastating environmental litigation. 
In fact as far back as 1989 Donald Carr, former acting Assistant 
Attorney General for the Land and Natural Resources Division, stated 
``Critical Habitat does have advocacy value. It helps the prosecutor 
get rid of showing the steps to jeopardy.''
    In the current situation, we in the South find ourselves dealing 
with the results of a settlement between Department of Justice 
attorneys and various environmental groups. This settlement was the 
result of a court-ordered mediation that was completely secret in 
nature until the results were quietly rolled out. We only found out 
about this settlement because of my relationship with a gentleman from 
out west, who along with being an expert on the Secure Rural Schools 
and Community Self-Determination Act reauthorization issue, was also an 
expert in ESA matters. Were it not for his alerting me, and, just as 
importantly, educating me as to why I should be alerted, absolutely no 
one in Arkansas or indeed much of the South, would've had any idea they 
should be alarmed or have any further idea as to what they should do 
about it. Clearly, this process of ``sue and settle'' is broken and 
should be addressed. More importantly, the public outreach and 
information provided by the U.S. Fish and Wildlife Service [FWS], in 
the wake of these settlements, should be greatly increased so as to 
avoid future catastrophes for ill-informed business and land owners.
    I would suggest that future education provided by the FWS be 
better-rounded, proactive and not limited to waiting for a request 
which cannot happen if business or landowner has no knowledge the 
action is occurring. Currently, it is the official position of the FWS 
that a landowner has no reason to fear an ESA listing or critical 
habitat designation unless there is some sort of nexus between the 
landowner and the Federal Government--and this is true as far as it 
goes. It completely misses, however, the most probable and most 
potentially devastating impact of the ESA and here I am referring to 
third party litigation. This litigation has devastated the West and now 
appears prepared to wreak the same sort of havoc in the South/
Southeast. There should be no attempts, by the FWS, to minimize the 
impacts that may be visited upon the landowners, most of whom work 
there tails off every day, to support their families and pay taxes.
    This leads me to my final point. We absolutely must change the way 
the FWS performs its Economic Analysis prior to the designation of 
critical habitat. I am not an economist; however, as I understand it 
the service currently utilizes an incremental model, as opposed to more 
inclusive cumulative model (co-extensive), to determine the economic 
impact of declaring critical habitat. The upshot of this method is that 
it only measures the costs of agencies talking to each other during 
section 7 consultations. This is guaranteed, indeed designed, to 
provide an analysis that is ridiculously low and certain to mislead the 
reader as to the real human and economic impact of declaring critical 
habitat.
    To give you an example of what I mean, the service's economic 
assessment regarding the declaration of critical habitat for the Neosho 
Mucket and Rabbitsfoot Mussels provides for, a $220,000 per year impact 
spread across 12 States, over a 20 year period, for a total projected 
impact of $4.4 million. Our Economist, Dr. Jim Metzger, Professor of 
Economics, University of Arkansas in Little Rock, in the briefest of 
snapshots, and excluding third party litigation, projected the loss to 
Arkansas alone to be $20-$50 million. The good news, if there is any, 
is that it would not require an act of Congress but a change with 
Service regulations (73 FR 33052) and the Office of Management and 
Budget [OMB] guidelines for best practices for the conduct of economic 
analysis of Federal regulations
    In closing, we must attempt to slow down ``sue and settle'' 
activities and, when a loss or settlement is inevitable, educate the 
affected landowners as to all of their ramifications. Finally, we 
should work to change the rule on economic analysis to one that 
accurately reflects the real economic and human costs of the 
designation of critical habitat.
                                 ______
                                 
    The Chairman. Thank you very much, Mr. Sikes, for your 
testimony.
    I now recognize Mr. Greg Foley, Executive Director of the 
Division of Conservation for the Kansas Department of 
Agriculture, located in Topeka, Kansas.
    Mr. Foley, you are recognized for 5 minutes.

  STATEMENT OF GREG A. FOLEY, EXECUTIVE DIRECTOR, DIVISION OF 
 CONSERVATION, KANSAS DEPARTMENT OF AGRICULTURE, TOPEKA, KANSAS

    Mr. Foley. Thank you, Mr. Chairman. Good morning. Mr. 
Chairman, members of the committee, my name is Greg Foley. As 
the Director of the Division of Conservation, Department of 
Agriculture, I appreciate the opportunity and the invitation to 
appear before the committee and express thoughts, concerns, and 
impacts associated with the Endangered Species Act listing of 
the Lesser Prairie Chicken.
    Agriculture is our largest economic driver in Kansas, 
valued at more than $33 billion annually. We have more than 50 
million acres of land, providing agricultural jobs for more 
than 400,000 people. Agriculture is not just growing crops and 
raising animals, but it includes robust sectors of renewable 
energy, food processing, research, and education, and 
agribusiness. Kansas has very few public lands, and has a 
private ownership rate of approximately 98 percent.
    How are we being proactive to protect the Lesser Prairie 
Chicken? There are five States that have areas currently that 
are occupied by the Lesser Prairie Chicken, Kansas being one of 
those States. There are numerous voluntary plans for 
conservation actions that have been developed by stakeholders 
in our region. The Kansas Department of Wildlife and Parks and 
Tourism, one of our State agencies, has played an integral role 
in the development of one of those such plans that was actually 
endorsed--that the Chairman spoke about--just a couple days ago 
by the U.S. Fish and Wildlife Service.
    Additional stakeholder groups have developed strategies, as 
well. We are open to the multiple voluntary strategies and 
plans for species recovery, and believe that the Service should 
expedite consideration of all plans to ensure the oil and gas 
industry and agricultural producers have best options available 
to them to prevent a listing. I have attached a slide 
presentation that--the opening slide is on the screen there--
that identifies some tools, maps, conservation priority areas, 
the conservation reserve program status in the Lesser Prairie 
Chicken-occupied range, acres enrolled. It has a lot of 
components, and I would encourage you to take a look through 
that at your leisure.
    Mr. Chairman, the Department of Agriculture, in our 
division, we have a large stakeholder group. We have 105 
counties in Kansas, a lot of volunteers. They work side by side 
with thousands of other farmers and ranchers, as natural 
resource conservationists, to protect soil, water, air, plants, 
and animals. These leaders have voiced some fears and impacts 
in the event of a listing.
    Common questions--and I wrote this testimony as the issues 
or fears or concerns and some of the information I read in the 
last couple of days, maybe they are prophecies, but I will 
leave that to be determined--some of those questions include, 
``Will I be able to take my CRP out of the program, if the 
Lesser Chicken is listed?''; ``Will I be able to build new 
fences, outbuildings, grain bins?''; ``Why would the Federal 
Government extend my current CRP contract if a different 
Federal agency prevents them from putting land back in to its 
prior use as a row crop production?''; ``If returning CRP back 
to crop land is prohibited, and the land is not re-enrolled in 
the program, will I be prohibited from haying or grazing during 
primary nesting seasons?''; ``Will I be able to hay or graze 
existing pasture or range land?'' That is just the start of the 
list.
    These landowner questions communicate a significant message 
of the potential for loss of current enrolled CRP acres. The 
cause-and-effect relationship from a regulatory action may 
reduce the ability of USDA and State efforts to maintain and 
re-enroll existing habitat, enroll new habitat acres, and to 
utilize other voluntary incentive-based programs to assist the 
recovery of the Lesser Chicken. We believe current Kansas 
conservation efforts are an indication of why Kansas has the 
largest number of acres and the number of birds within the 
occupied range.
    Kansas has experienced three consecutive years of drought. 
In my review of the Lesser Chicken, it looks like there are 
three basic requirements or principles to ensure the existence 
of the species: food, nesting, and brood-rearing habitat, and 
water. We would challenge utilizing existing programs within 
USDA to add other components such as the livestock water 
supply, dealing with drought-related issues, water is obviously 
an issue that we have endured. Even drought can be planned and 
managed for with voluntary incentive-based programs.
    In closing, I would like to highlight a handful of points 
that are potential impacts and issues in Kansas agriculture and 
the Lesser Prairie Chicken, if a listing were to occur: the 
ability to continue food and fiber production in the affected 
area; the potential of expanding the footprint or buffer zone 
of the current occupied range, arbitrarily adding tens of 
thousands of acres under the control of the U.S. Fish and 
Wildlife Service; reduction of personal property rights.
    Agriculture is our economic driver. Negative impacts means 
lost jobs, population, assurances, predictability, State 
programs, and many other bureaucratic terms of protection are 
feared due to loopholes, complex rules, and hidden agendas.
    Mr. Chairman, members of the committee, thank you for the 
opportunity to testify before you to touch a few bases and 
address written testimony, as well. We request voluntary 
solutions in lieu of regulatory controls. Thank you, Mr. 
Chairman.
    [The prepared statement of Mr. Foley follows:]
 Prepared Statement of Greg A. Foley, Executive Director, Division of 
     Conservation, Kansas Department of Agriculture, Topeka, Kansas
    Good morning, Mr. Chairman, members of the committee. My name is 
Greg Foley and I am the Executive Director of the Division of 
Conservation, Kansas Department of Agriculture. I want to thank you for 
the invitation to appear before the committee to express thoughts, 
concerns and impacts associated with an Endangered Species Act [ESA] 
listing of the Lesser Prairie Chicken [LPC].
    I work closely with the recently appointed Kansas Secretary of 
Agriculture, Jackie McClaskey, and am appearing today to convey 
concerns that impact Kansas Agriculture. Agriculture is the largest 
economic driver in Kansas, valued at more than $33 billion annually. In 
Kansas, there are 52,320,102 acres of land that provides jobs for more 
than 427,000 people. Agriculture in Kansas is not just about growing 
crops and raising animals, but also includes robust sectors of 
renewable energy production, food processing, research and education, 
agribusiness and more. Kansas farmers and ranchers are feeding the 
world. In 2011, Kansas exported nearly $5.3 billion in agricultural 
products. Kansas has very few public lands and has a private ownership 
rate of approximately 98 percent.
    How is Kansas being proactive to protect the LPC? There are five 
States that have areas that are currently occupied by the LPC. There 
are numerous plans for voluntary conservation actions that have been 
developed by stakeholders in the region. The Kansas Wildlife, Parks and 
Tourism has played an integral role in the development of a multi-state 
Range-Wide Conservation Plan coordinated through the Western 
Association of Fish and Wildlife agencies. These conservation programs 
being implemented that have resulted in positive effect on LPC 
populations or are expected to create those benefits. Additional Kansas 
stakeholder groups have also developed strategies as well. We are open 
to multiple voluntary strategies and plans for species recovery and 
believe that the Service should expedite consideration of all plans to 
ensure that the oil and gas industry and agricultural producers have 
the best options available to them to prevent a listing or, in the 
event of a listing to facilitate mitigation and conservation 
activities. I have attached a slide presentation outlining some of 
those efforts and accomplishments in Kansas. The presentation includes 
Federal program tools, maps of conservation priority areas, CRP status 
in the LPC range, acres enrolled, etc.
    Mr. Chairman, Kansas Department of Agriculture and the Division of 
Conservation have a network of 525 locally elected voluntary 
supervisors within the 105 organized Conservation Districts. This 
grassroots governance of voluntary incentive based programs provides us 
with input from every county throughout the State. These volunteers, 
side by side with thousands of other farmers and ranchers, are natural 
resource conservationists working to protect soil, water, air, plants, 
and animals. Kansans have worked with State and Federal programs 
implementing conservation practices, many of which have significant 
benefits to wildlife. Of the 27 million acres enrolled in the USDA 
Conservation Reserve Program [CRP], Kansas currently holds 
approximately 2.34 million of the enrolled acres. These local leaders 
have voiced fears of the impacts in the event of a listing. Common 
questions arise: Will I be able to take my CRP out of the program if 
the LPC is listed? Will I be able to build new fences, outbuildings, 
grain bins, etc.? Why would the Federal Government extend my current 
CRP contract if a different Federal agency prevents them from putting 
the land back to its prior use as row crop production? If returning CRP 
back to cropland is prohibited and the land is not re-enrolled in the 
program will I be prohibited from haying or grazing during ``primary 
nesting seasons?'' Will I be able to hay or graze existing pasture and 
rangeland? The list goes on and on.
    These landowner questions communicate a significant potential for 
loss of currently enrolled CRP acres. This cause and effect 
relationship from a regulatory action may reduce the ability of USDA to 
maintain and re-enroll existing habitat, enroll new habitat acres, and 
to utilize other voluntary programs to assist the recovery of the LPC. 
We believe current Kansas conservation efforts are an indication as to 
why Kansas has the largest number of acres and numbers of birds within 
the occupied range. The Kansas Department of Agriculture's formal 
comments to the USFWS requested that they work with the Natural 
Resources Conservation Service and the Farm Service Agency to utilize 
existing programs such as CRP, Conservation Reserve Enhancement Program 
[CREP], and the Lesser Prairie-Chicken Initiative to prioritize these 
conservation practices and applicable programs to open sign-up status, 
increase the rental rates, and potentially add practices or plant 
mixtures to benefit the species.
    Kansas has experienced three consecutive years of drought. Federal 
drought declarations verify this drought of record and this has had a 
significant impact on crops, plants, animals and everything in this 
region of the State. In my review of the LPC, it appears there are 
three basic requirements that will ensure the existence of the species 
which are food, nesting and brood rearing habitat and water. Outside 
the box thinking to add ``wildlife water supply'' to existing Federal 
programs is necessary, and may be essential, if recovery and 
repopulation of the LPC is the mission. I would volunteer to assist 
NRCS to modify an existing livestock water supply specification and to 
work with wildlife specialists to design a system that works. This 
should be the American way, assess the problem and define solutions, 
not resort to litigation or regulatory sprawl. Even drought can be 
planned for and managed with voluntary incentive based programs if the 
will is there that is supported by Congress, the Administration and 
respective Federal agencies.
    In closing, I would like to highlight some of the most significant 
concerns of the Kansas Department of Agriculture. Potential impacts and 
issues for Kansas agriculture and the Lesser Prairie Chicken if a 
Federal listing occurs:

   The ability to continue food and fiber production in the 
        affected area.
   The potential of expanding the footprint or buffer zone of 
        current occupied range arbitrarily adding tens of thousands of 
        acres under the control of USFWS.
   A reduction in personal property rights such as the 
        inability to add an outbuilding at the farm, or pursue oil 
        exploration, or utilize steady class 4 or class 5 winds for 
        clean energy, to install or move an irrigation center pivot, to 
        till expired CRP, etc.
   Weather cycles are not controlled by a Federal agency. 
        Establishing and or maintaining habitat are subject to adequate 
        precipitation for growth, which has potential implication with 
        program compliance rules.
   Agriculture is the economic driver in Kansas; negative 
        impact to that engine means schools will close, population will 
        decline, jobs will be lost, etc. This is a narrow margin 
        industry that is a price taker in the market place. When costs 
        increase, the agriculture producer does not have the luxury of 
        raising the price of the commodity.
   Assurances, Predictability (NRCS NB 300-14-7-LTP), State 
        ``Certainty'' programs and many other bureaucratic terms of 
        ``protection'' are feared due to loop-holes, complex rules, 
        hidden agendas that could lead to regulation of non-point 
        source pollution.
   A listing will likely result in decreased participation by 
        private landowners in voluntary conservation programs designed 
        to benefit the LPC. Because the vast majority of LPC range is 
        under private ownership, a Federal listing will likely hinder 
        our ability to conserve the species rather than increase 
        populations as intended.

    Mr. Chairman, members of the committee, thank you for the 
opportunity to testify before you and to plea for help to find working 
voluntary solutions in lieu of regulatory control. Senator Roberts used 
a quote of President Dwight D. Eisenhower last week that I believe 
holds the key to a solution: ``There is nothing wrong with America that 
the faith, love of freedom, intelligence and energy of her citizens 
cannot cure.''
    If it be the pleasure of the Chairman, I will stand for questions 
at the appropriate time.
                                 ______
                                 
    The Chairman. Thank you very much, Mr. Foley, for your 
testimony. And now I will recognize Dr. Joe Roman from the 
Rubenstein School of Environment and Natural Resources at the 
University of Vermont in Burlington.
    Dr. Roman, you are recognized for 5 minutes.

STATEMENT OF DR. JOSEPH ROMAN, RUBENSTEIN SCHOOL OF ENVIRONMENT 
   AND NATURAL RESOURCES, UNIVERSITY OF VERMONT, BURLINGTON, 
                            VERMONT

    Dr. Roman. Thank you, Chairman Hastings and members of the 
committee. So my name is Joe Roman, and I am honored to appear 
before you to discuss the importance of the Endangered Species 
Act today. I am a fellow at the Gund Institute for Ecological 
Economics at the University of Vermont, and also a visiting 
scholar at Duke University in North Carolina. In 2011, my book, 
``Listed: Dispatches from America's Endangered Species Act'' 
was published by Harvard University Press.
    Now I am going to give you a background on the act and on 
some of the ecological impacts of the act, in this case the 
economic benefits that the act can have. Forty years ago this 
month, the Endangered Species Act was passed. It was unopposed, 
90 to nothing in the Senate, and there were only 4 nays in the 
House of Representatives. Richard Nixon signed the bill on 
December 28, 1973. So this month.
    How has the act fared since then? The Endangered Species 
Act remains the strongest environmental legislation in the 
country, and the first comprehensive law to address the global 
extinction crisis. The diagnosis of listing a species is 
intended to be as clear as a visit to the doctor's office. A 
species is endangered or it is not, regardless of political or 
economic considerations.
    The trouble is we often wait until animals and plants get 
to the emergency room before we make that diagnosis. Ninety-
nine percent of listed species have been saved from extinction 
over the past 40 years, and there are clear success stories. 
The bald eagle was recovered in 2007 with breeding eagles in 
every State on the continent. The Pacific gray whale now has a 
population of about 19,000. And the gray wolf is once again an 
important part of the Rocky Mountain ecosystem.
    Please allow me to discuss some of the many benefits of 
endangered species conservation. Biodiversity produces the 
ecosystem services from climate regulation to pollination and 
food production that we all depend on every day. These benefits 
could be spiritual or cultural. They can also be of direct 
value to local communities and human health.
    In 2011, Americans spent about $144 billion on wildlife 
viewing, hunting, and fishing. About 1 in 20 people are 
directly or indirectly employed by such outdoor activities. 
Wildlife conservation supports millions of jobs.
    Endangered species protection also supports local 
economies. Manatees listed in 1967 in an earlier version of the 
act attract hundreds of thousands of visitors to Florida each 
year. Reef-based tourism around the Florida Keys is almost 
entirely based on corals, including the federally listed 
staghorn and elkhorn corals. The industry employs more than 
43,000 people, earning $1.2 billion a year. This is supported 
by the ESA.
    Endangered species and natural habitats provide ecosystem 
services, benefits provided by nature for free. Call it natural 
capital. Two endangered mussel species, the purple bank climber 
and the fat three-ridge, are found only on the Apalachicola 
River in Florida. Protection of these mussels helps ensure that 
our waters are not overused, that rivering and forest habitat 
provide a buffer from storm surges, and a nursery for shrimp, 
crab, and bass, essential to fisheries, including oystermen, 
the 1,200 oystermen that work in that area.
    This diversity of life matters to our health and well-being 
on a daily basis. More species diversity means greater chemical 
diversity and more opportunities to discover pharmaceuticals 
for cancer or infectious disease. Most of our drugs come from 
natural compounds.
    There is also a direct correlation between diversity of 
wildlife and the reduction of the transmission of zoonotic 
diseases. Those diseases pass from animals to humans. Lyme 
Disease, for example, is the most commonly diagnosed vector-
borne disease in the country. It comes from ticks. Several 
studies have shown that areas with high diversity of wildlife 
can reduce the risk of this disease. Many species play a 
protective role by feeding, but not infecting, the black-legged 
ticks. So having a diversity of wildlife reduces the disease 
burden. Healthy ecosystems means healthy people.
    Many species now struggle with habitat loss. In the 
Southeast, where I traveled from today, 99 percent of the long-
leafed pine forests were cut down--they were already cut down 
when the ESA was passed--endangering many of its residents, 
including the red cockaded woodpecker. To respond to this loss, 
the Endangered Species Act has become the Nation's most 
effective habitat protection law.
    Species and their habitats and their ecosystems are 
integrally related. The success of this powerful law depends on 
adequate funding and listing decisions based on the best 
available science. Economic studies should include the economic 
and ecological benefits of protecting endangered species, and 
we should work to incentivize voluntary conservation efforts on 
private lands so we don't wait until species are in the 
emergency room before we treat them.
    I would like to conclude by thanking the Members of 
Congress and the American people for supporting the Endangered 
Species Act. The law is in the fine American tradition of 
protecting our citizens, economy, environment, and wildlife in 
all its forms.
    [The prepared statement of Dr. Roman follows:]
     Prepared Statement of Dr. Joseph Roman, Rubenstein School of 
 Environment and Natural Resources, University of Vermont, Burlington, 
                                Vermont
    Good morning, Chairman Hastings and members of the committee. My 
name is Joe Roman, and I am honored to appear before you to discuss the 
importance of the Endangered Species Act. I have been working on 
endangered species conservation for the past 20 years. I am a visiting 
scholar at Duke University and a fellow at the Gund Institute for 
Ecological Economics at the University of Vermont. My research and 
writing focus on the biology and economics of endangered species 
conservation. In 2011, my book Listed: Dispatches from America's 
Endangered Species Act was published by Harvard University Press; it 
was awarded the 2012 Rachel Carson Book Award by the Society of 
Environmental Journalists.
    Forty years ago this month, the Endangered Species Act was passed. 
When the act came up for a vote in the Senate, there was widespread 
bilateral support. Republicans Bob Dole of Kansas, Jesse Helms of North 
Carolina, Ted Stevens of Alaska, and Howard Baker of Tennessee voted 
for the bill. There were only four nays in the House of 
Representatives. Signing the act on December 28, 1973, President 
Richard Nixon noted that the ``legislation provides the Federal 
Government with the needed authority to protect an irreplaceable part 
of our natural heritage--threatened wildlife. . . . 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.''
    Forty years on, how has the act fared? The Endangered Species Act 
remains the strongest environmental legislation in the country, and the 
first comprehensive law to address the global extinction crisis: zero-
tolerance legislation. No new extinctions, no exceptions. The diagnosis 
of listing a species is intended to be as clear as a visit to the 
doctor's office: a species is endangered or it is not, regardless of 
political or economic considerations. Once a species is protected, the 
Fish and Wildlife Service has had a very high success rate: about 99 
percent of listed species have been saved from extinction, and 
populations of most animals and plants protected under the act are 
stable or increasing in size (Bean 2009). It is likely that hundreds of 
species would have gone extinct in the United States in the absence of 
this legislation.
    There are clear successes: The bald eagle was recovered in 2007, 
with breeding eagles in every State on the continent. After hunting was 
banned and habitat preserved, the American alligator fully recovered in 
1987. The Pacific gray whale, delisted in 1994, now has a population of 
about 19,000. The gray wolf, extirpated by park rangers in Yellowstone 
in the early 20th century, is now an important part of the Rocky 
Mountain ecosystem. These are just a few of the species that have 
benefited.
    The Endangered Species Act has been an influential law, serving as 
the model for biodiversity conservation around the world and in many 
States looking to protect biodiversity on a local level. By investing 
in endangered species, we are saving wildlife in all its forms and 
protecting our economy and human well-being. Yet stagnant funding 
levels hurt nearly every aspect of Endangered Species Act 
implementation, from listing species, to conducting recovery activities 
and providing sufficient law enforcement. When we make these 
investments, we can expect endangered species recovery and healthy 
ecosystems. Please allow me to discuss some of the many benefits of 
endangered species conservation.
                  the economics of wildlife protection
    Biodiversity produces the ecosystem services--from climate 
regulation to pollination and food production--that all of us depend on 
everyday. The field of ecological economics can help us to resolve 
conflicts and see a path forward that includes stewardship, 
sustainability, and the valuation of natural capital. It can also help 
us to quantify the benefits of protecting endangered species and their 
habitats. These benefits can be spiritual and cultural, and they can 
also be of direct value to local communities and human health.
    On the most obvious level, wildlife brings in millions of 
recreational and tourism dollars to many communities, through bird 
watching, whale watching, and other forms of outdoor activities. The 
Department of the Interior, Commerce Department, and Census Bureau have 
been gathering economic data on outdoor activities since 1955. In 2011, 
Americans spent more than $144 billion on hunting, fishing, and 
wildlife watching (U.S. Fish and Wildlife Service and U.S. Census 
Bureau 2012). About 1 in 20 people are employed directly or indirectly 
by such outdoor activities. Wildlife conservation supports millions of 
jobs.
    Endangered species protection also supports local economies. 
Manatees, federally listed since 1967, attract hundreds of thousands of 
visitors to Florida each year (Fig. 1). Just about all of the tourism 
in Citrus County, on Florida's ``Nature Coast,'' centers on manatees. 
Tourists spent $23 million a year to see them in the local springs, and 
many tour operators support Federal protections of these marine 
mammals. Homosassa, Florida, has erected a statue celebrating its 
favorite attraction.
    Citrus County, like other parts of Florida, makes its living from 
protected species. Reef-based tourism around the Florida Keys is almost 
entirely dependent on corals, including the federally listed staghorn 
and elkhorn corals; the industry employs more than 43,000 people, whose 
wage income totals $1.2 billion a year. By protecting whales, we 
created a $956 million annual industry for Coastal States in the 
Atlantic, Pacific, Gulf of Mexico, Hawaii, and Alaska (O'Connor et al 
2009). In many cases, this industry helped diversify employment as 
commercial fishing opportunities were reduced. The figures for 
birdwatchers alone are staggering: there are 48 million in the United 
States, compared to about 33 million anglers and hunters. Bird watching 
is worth $32 billion per year in the United States. Just as cities 
compete for stadiums and factories, communities should vie for parks 
and charismatic fauna, such as whooping cranes in Texas and Wisconsin, 
bald eagles at Mason's Neck in Virginia, and humpback whales in New 
England.

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    Though wildlife conservation clearly boosts employment, a 
common complaint is that protected areas reduce a community's tax base. 
But the reality is that these expenditures help local economies: 
wildlife watching and outdoor recreation bring in about $40 billion in 
tax revenues to State and local governments (Southwick Associates 
2012).
    Endangered species conservation also supports our natural capital 
in the form of ecosystem services. Two endangered mussel species--the 
purple bankclimber and the fat three-ridge--are found only on the 
Apalachicola River in Florida. It appeared that they were in direct 
conflict with human activities, especially when Atlanta was suffering 
drought in 2007. But here's the thing: endangered species are their 
habitat, and these habitats provide long-term benefits to all of us. 
Protection of endangered mussels helps ensure that our waters are not 
overallocated or overexploited, and these filter-feeding bivalves can 
help reduce pollutants, which benefits people downstream. The riverine 
habitat of endangered mussels provides numerous services for people and 
their local economies. Flooding forests can buffer communities from 
storm surges and provide a nursery for shrimp, crab, and bass and other 
fish. Apalachicola fisheries are worth more than $200 million per year. 
There are 1,200 oystermen and 25 packinghouses working in this region, 
representing 90 percent of the Florida harvest. The flooding forests 
are also the source of tupelo honey. In a good harvest year, the tupelo 
honey crop in Florida approaches $900,000 (Roman 2011).
    The benefits of protecting species often outweigh the short-term 
costs. Forests help stabilize the climate by absorbing and storing 
carbon dioxide in trees, soils, and understory foliage. Marshlands and 
barrier beaches protect us from extreme storms and hurricanes. Trees 
clean the air. By restoring and conserving natural infrastructure, we 
create jobs and provide ecosystem services to the most vulnerable 
populations, dependent on forests and oceans.

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                   .epsbiodiversity and human health
    The diversity of life matters to our health and well-being on a 
day-to-day basis. More species diversity means greater chemical 
diversity and more opportunities to discover pharmaceuticals. Sixty 
percent of cancer drugs and 75 percent of drugs for infectious diseases 
come from natural compounds. There is also a direct correlation between 
the diversity of wildlife and the reduction of the transmission of 
zoonotic diseases, such as hantavirus, which are transmitted from 
animals to humans. This is important since we appear to be in a time 
when diseases are emerging and re-emerging at a high rate, perhaps 
because we are altering environments so quickly and traveling around 
the world more rapidly.
    West Nile virus reached the United States in 1999 and is now found 
from Massachusetts to Florida to Washington State. The hosts for West 
Nile virus are our common birds of the suburbs, such as robins and 
crows, which can contract the disease and die. Other less common 
species, such as wading birds and woodpeckers, are epidemiological dead 
ends. When mosquitoes bite these birds, the virus is not transmitted, 
and the prevalence of the disease goes down (Ezenwa et al. 2006). The 
greater the species richness, the greater the dilution effect for the 
disease reservoir, and the lower the risk to people. More species 
diversity equals reduced disease transmission.
    Lyme disease is the most commonly diagnosed vector-borne disease in 
the country, transmitted by the blacklegged tick (Fig. 2). An important 
host for this bacterial disease is the white-footed mouse, common in 
fragmented landscapes. Several studies have shown that areas with high 
diversity of wildlife can reduce the risk of Lyme disease: many species 
play a protective role by feeding but not infecting blacklegged ticks. 
The Virginia opossum, for example, grooms and kills the ticks, which 
can reduce the prevalence of the disease (Ostfeld and Keesing 2012).
    By restoring healthy ecosystems, with a full suite of native 
species from microbes to plants to predators, we can reduce disease 
transmission, bolster local economies, and enhance our experience of 
nature. Biodiversity protection may be as important to people on a 
local scale in their everyday lives as it is in remote protected 
ecosystems (Pongsiri et al. 2009).
                          habitat conservation
    Historically, overexploitation was responsible for many of the 
extinctions in North America, such as the great auk, sea mink, and 
passenger pigeon. But now many species struggle with more systemic 
problems, such as habitat loss and invasive species. In the Southeast, 
99 percent of the native long-leaf pine forests were cut down, 
endangering many of its residents, including the red-cockaded 
woodpecker. Loss and fragmentation of sagebrush habitats are the main 
causes in the decline of Gunnison and greater sage grouse populations. 
The Gunnison sage-grouse has declined by more than 90 percent from its 
historic abundance and has been proposed for listing as endangered with 
a final decision expected next year.
    In its attempt to decelerate or mitigate such threats, the 
Endangered Species Act has become the Nation's most effective habitat 
protection law. The drafters of the law made it clear that more than 
just species conservation in a zoo or arboretum, the act was intended 
``to provide a means whereby the ecosystems upon which endangered 
species and threatened species depend may be conserved.'' The Supreme 
Court has affirmed that the act's definition of ``take'' included the 
severe harm of habitat destruction. Our protection of endangered 
species depends on preserving and restoring healthy ecosystems.
                              ways forward
    The Endangered Species Act is a powerful law, but its success 
depends on funding it adequately and on maintaining its integrity. If 
we invest more in protecting species, we can recover them and receive 
enhanced benefits from our natural capital. All species that deserve 
protection should be listed and fully protected. Many species have to 
wait years, and sometimes decades, to be protected under the act even 
though the science is clear that they need to be listed. Delaying 
listing makes conservation more difficult, and species have gone 
extinct while waiting for status determinations. Decisions should be 
made based on the best available science, without political 
interference. Economic studies should examine the economic and 
ecological value of protecting endangered species in addition to the 
costs. We should work to incentivize voluntary conservation efforts 
through the Farm Bill and other legislation, to protect native species 
and endangered habitats on private lands.
    I would like to conclude by thanking the Members of Congress and 
the American people for supporting the Endangered Species Act. The law 
is in the fine American tradition of protecting our citizens, 
environment, and wildlife in all its forms. The act has been successful 
in reducing extinctions and protecting our natural heritage. By 
protecting endangered species we can conserve the flora, fauna, and 
natural systems that fuel our economy and protect our well-being.
                               references
    Bean, M. J. 2009. The Endangered Species Act: Science, Policy, and 
Politics, The Year in Ecology and Conservation Biology 1162: 369-91.
    Ezenwa, V. O., Godsey, M. S., King, R. J., Guptill, S. C. 2006. 
Avian diversity and West Nile virus: Testing associations between 
biodiversity and infectious disease risk. Proceedings of the Royal 
Society B 273: 109-117.
    O'Connor, S, Campbell R, Cortez H, and Knowles T. 2009. Whale 
Watching Worldwide: Tourism Numbers, Expenditures and Expanding 
Economic Benefits. International Fund for Animal Welfare. Yarmouth, MA.
    Ostfeld, R. S., and F. Keesing. 2012. Effects of host diversity on 
infectious disease. Annual Review of Ecology, Evolution, and 
Systematics 43: 157-82.
    Roman, J. 2011. Listed: Dispatches from America's Endangered 
Species Act. Harvard University Press: Cambridge, MA.
    Schmidt, K. A., and R. S. Ostfeld. 2001. Biodiversity and dilution 
effect in disease ecology. Ecology 82: 609-619.
    Southwick Associates. 2012. The Outdoor Economy. The Outdoor 
Industry Association: Boulder, CO.
    U.S. Fish and Wildlife Service. 2013. Gunnison Sage Grouse: 
Proposed Listing and Responsibilities Under the Endangered Species Act. 
www.fws.gov.
    U.S. Fish and Wildlife Service and U.S. Census Bureau. 2012. 
National Survey of Fishing, Hunting, and Wildlife-Associated 
Recreation, 2011. www.census.gov.
                                 ______
                                 
         Questions Submitted for the Record to Dr. Joseph Roman
    Questions Submitted for the Record by the Committee on Natural 
                               Resources
    Question. Given the advancements in scientific understanding we 
have made as a society, is it appropriate for us to ensure that 
development activity is compatible with species conservation? Is 
development that ignores biodiversity responsible?
    Answer. Development that ignores biodiversity is neither 
responsible nor sustainable. In the 40 years since the Endangered 
Species Act was passed, we have made major strides in conservation 
biology, including conservation genetics, captive breeding, and habitat 
restoration. We've even started restoring species like whooping cranes, 
California condors, and gray wolves, to historic ranges.
    During this time, we've come to understand that we can live with 
wildlife--that our native animals and plants are not simply denizens of 
remote preserved areas, but part of the mosaic of human landscapes. 
Responsible, sustainable development will give us a desirable future 
and protect biodiversity in all of its forms. Perhaps more than 
anything we do, future generations will thank us for protecting the 
wild charismatic animals, such as whales and rhinos, and the critical 
components of ecosystems, such as plants, invertebrates, and microbes.
    Question. Can you please elaborate on the benefits of biodiversity 
for helping to stop the spread of, and cure, deadly diseases?
    Answer. Biodiversity can help us in many ways, perhaps most 
obviously because more species diversity means greater chemical 
diversity and more opportunities to discover pharmaceuticals. 
Approximately 60 percent of cancer drugs and 75 percent of drugs for 
infectious diseases come from natural compounds.
    There is also a direct correlation between the diversity of 
wildlife and the reduction of the transmission of zoonotic diseases, 
such as hantavirus, which are passed from animals to humans. West Nile 
virus reached the United States in 1999 and is now found from 
Massachusetts to Florida to Washington State. The hosts for West Nile 
virus are the common birds of the suburbs, such as robins and crows, 
which can contract the disease and die. Other less common species, such 
as wading birds and woodpeckers, are epidemiological dead ends. When 
mosquitoes bite these birds, the virus is not transmitted, and the 
prevalence of the disease goes down. The greater the species richness, 
the greater the ``dilution effect'' for the disease reservoir and the 
lower the risk to people. More species diversity equals reduced disease 
transmission (Roman 2011).
    Lyme disease is the most commonly diagnosed vector-borne disease in 
the country, transmitted by the black-legged tick. An important host 
for this bacterial disease is the white-footed mouse, common in 
fragmented landscapes. Several studies have shown that areas with high 
diversity of wildlife can reduce the risk of Lyme disease: many species 
play a protective role by feeding but not infecting blacklegged ticks. 
The Virginia opossum, for example, grooms and kills the ticks, which 
can reduce the prevalence of the disease.
    By restoring healthy ecosystems, with a full suite of native 
species from microbes to plants to predators, we can reduce the 
transmission of some diseases. Biodiversity protection may be as 
important to people on a local scale in their everyday lives as it is 
in remote protected ecosystems.
    Question. A paper published last week in Nature magazine found that 
tidal wetland communities have an incredible ability to adapt to rising 
sea levels and more frequent flooding. This would seem to be a boon for 
coastal communities, as wetlands buffer against storms and absorb 
floodwaters and high tides, but the paper also reports, ironically, 
that human development is the biggest threat to allowing these wetlands 
to adapt for our benefit. Can protecting this type of habitat for the 
diamondback terrapin and the whooping crane protect our coastal 
communities and private property as well?
    Answer. Yes, I think there is a great value in protecting wildlife 
and wetlands. By doing so, we protect endangered species, such as the 
whooping crane, and the many Americans that live along the Nation's 
coast. I recently wrote a piece about the piping plover on the east 
coast for Slate. In the article I discuss how conservationists and 
landowners can work together to preserve the coastline for shorebirds 
and other wildlife as well as homes (Roman 2013). We can start with 
more stringent building codes and a retreat from the high-risk overwash 
zones. We should also use ecological engineering to protect our 
coastlines. Along the bays and estuaries, salt marshes absorb storm 
surges. Oyster reefs are natural breakwaters, protecting shorelines. 
All of these habitats, our natural infrastructure, provide other 
services, including nurseries for fish, carbon sequestration, and the 
conservation of wildlife, as well as protecting property. Restoring 
habitats that trap sediment and damp waves, such as oyster beds, mussel 
beds, and willow floodplains, will have many benefits for coastal 
communities (Borsje et al. 2011).
    One recent study suggests that natural habitats protect two-thirds 
of U.S. coastlines. We need to protect these habitats now, as sea-level 
rise is likely to increase the number of people by up to 60 percent in 
the coming decades (Arkema et al. 2013). To prepare for these changes, 
human communities should be built wisely, saving protected areas. 
Pioneering efforts in Louisiana and New York that include natural and 
engineered systems can be emulated in other regions. Including natural 
systems on our coastal planning will save us money, heartache, and the 
species we treasure like piping plovers, whooping cranes, and 
diamondback terrapins.
    Question. In his testimony, Mr. Albrecht mentioned that the greater 
sage-grouse is hunted and killed by sportsmen in Utah. If threats to 
its habitat require that a species be protected under the ESA, hunting 
will need to be greatly curtailed or eliminated. Can you talk about the 
negative economic consequences for sportsmen and rural communities when 
irresponsible land use leads to a decline in game species?
    Answer. In my home State of Vermont, and in North Carolina, where I 
have been working this year, hunters form an important part of the 
local community and economy. In 2011, hunters spent approximately $34 
billion dollars in the United States, and fisherman contributed $24 
billion to the economy (U.S. Fish and Wildlife Service 2012). Just like 
the greater sage grouse, these hunters and fishers depend on healthy 
productive ecosystems--open land where they can hunt and fish. If we 
lose that land, people will have to travel further, and those travel 
costs are tough if you're on tight budget.
    Consider the fantastic work that Ducks Unlimited has done in 
protecting and restoring marshes or the money that has gone into 
protecting wildlife refuges by the Duck Stamp program. Trout Unlimited 
has also worked hard to keep our waters healthy and running free. 
Hunters and fishers have long understood that we need healthy 
ecosystems with abundant wildlife. They travel, they spend money, and 
they learn to appreciate the outdoors. They can be some of our greatest 
allies in habitat protection.
                               references
    Arkema KK, Guannel G, Verutes G, Wood SA, Guerry A, Ruckelshaus M, 
Kareiva P, Lacayo M, Silver JM. 2013. Coastal habitats shield people 
and property from sea-level rise and storms. Nature Climate Change 3: 
913-918.
    Borsje BW, van Wesenbeeck BK, Dekker F, Paalvast P, Bouma TJ, van 
Katwijk MM, de Vries MB. 2011. How ecological engineering can serve in 
coastal protection. Ecological Engineering 37: 113-122.
    Roman J. 2011. Listed: Dispatches from America's Endangered Species 
Act. Cambridge: Harvard University Press.
    --. 2013. Can the plover save New York? Slate: Aug. 23.
    U.S. Fish and Wildlife Service. 2012. 2011 National Survey of 
Fishing, Hunting, and Wildlife-associated Recreation. Washington, DC.
                                 ______
                                 
    The Chairman. Thank you very much, Dr. Roman, for your 
testimony. And now I will recognize Mr. Brock Evans, President 
of the Endangered Species Coalition based here, in Washington, 
DC.
    Mr. Evans, you are recognized for 5 minutes.

    STATEMENT OF BROCK EVANS, PRESIDENT, ENDANGERED SPECIES 
                   COALITION, WASHINGTON, DC

    Mr. Evans. Thanks, Mr. Chairman and members of the 
committee. I very much appreciate the invitation to be here. 
And personally, I want to say, for myself and the Endangered 
Species Coalition--which is about 300 groups, scientific 
societies, religious groups, and sportsmen groups, as well as 
environmental, actually, Mr. Chairman--that it is a great 
honor, a special honor to be here this month and this date. 
Because, as my colleagues have mentioned, this is the 40th 
anniversary of the Endangered Species Act, signed by Richard 
Nixon December 28, 1973. And so it is considered by many as one 
of the finest and most effective wildlife and habitat 
protection laws anywhere in the world. And I want to come back 
to that.
    First, I also want to add--I can't resist adding to my 
colleague that I used to spend many years in our State, Mr. 
Chairman, in Washington State, concerned about what is 
happening to the ancient forests out there. And during most of 
those days in the early 1960s and 1970s, we always thought that 
the most valuable treasure that should be protected that is 
unique are those magnificent trees of the ancient forests, 4 to 
8 feet thick and 200 feet high, and they were like cathedrals, 
and so on. And so, that is what we fought for and worked for.
    I didn't realize until a good deal later that the most 
important tree in that forest, from a human scientific 
standpoint, was a little small, scraggly tree called the yew 
tree, Pacific yew tree. You know it, I am sure. Small, bent 
over, a little tree down there in the bottom. Whenever they 
would clear out the big trees for lumber, they would always 
just burn the yew tree in the pile. Well, it turns out that the 
bark of the yew tree produces Taxol, which is used in the 
treatment of cancer. It melts ovarian tumors. It protects 
against cancer, for example. This is just another example to 
add to what my colleague just added about, all the uses of 
these seemingly insignificant species that can make a big 
difference. And we must not let them go extinct.
    In my opinion, and my colleague's opinion, the whole world 
is a library full of books of all these chemical compounds and 
things like that, that we don't even know the answers to yet. 
And we have only read about 5 percent of the books. And so, to 
let a species go extinct is like burning down all the 
libraries, but not reading any--only 5 percent of the books.
    Let me come back, though, because time is limited, and I 
appreciate having some. This might be a good time to read 
President Richard Nixon's words, which I think respect what 
this is all about here. He said, ``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 of all 
Americans. I congratulate the 93rd Congress for taking this 
important step toward protecting a heritage which we hold in 
trust for 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.'' That is what Richard 
Nixon said.
    And I don't think he was just speaking about the fact that 
it is a strong and remarkable law, Mr. Chairman, but he is also 
commenting on the enormous majorities by which it passed. As my 
colleague said, 92 to nothing in the Senate, 355 to 4 in the 
House. Quite a remarkable expression of bipartisan unity, one 
of the best that our feisty people can ever get.
    So, that was very, very powerful, expressed the hopes and 
the loves of the whole American people, who don't want to see 
things go extinct, who want to have a regular process for 
saving them, protect them, and keep them going. So we would 
suggest, Mr. Chairman--and I think we all feel this inside our 
hearts, here--that what we have is before us in the native 
species--it is not just one of the best wildlife habitat 
protection statutes anywhere in the whole world, but it is a 
profoundly moral law. Moral. Think of that.
    For the first time ever in the history of the world, the 
legislators of our great Nation got together in 1973 and they 
said that from now and henceforth, we shall not permit any 
living species of plant or animal that shares its natural 
territory with us to go extinct. So, there is a lot more in my 
statement about that, but we should always remember the 
morality of these laws. And that is why the American people 
love them so much, among other things.
    Let me just close with the remarks of one of our most 
active board members, a retired Marine Corps general, and here 
is what he said. ``When service members deploy to other lands, 
they see the devastation wrought by governments who don't hold 
their land in stewardship for future generations. It gives 
those of us in uniform a unique perspective on the incredible 
beauty of our own land. And we know that. Were it not for the 
protection of the Endangered Species Act, we would be no 
different from those countries that have failed to respect 
their environment. For us, a country worth defending is a 
country worth preserving.''
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Evans follows:]
   Prepared Statement of Brock Evans, President, Endangered Species 
                       Coalition, Washington, DC
    Mr. Chairman and Ranking Member DeFazio, thank you for the 
invitation to appear here before you today. I am Brock Evans, President 
of the Endangered Species Coalition. While we have some members who are 
individuals, most of our membership consists of more than 300 groups 
around the country large and small, including scientific societies, 
sportsmen's organizations and religious groups as well as environmental 
organizations. Founded in 1982, just 9 years after passage of the 
Endangered Species Act, our mission ever since has been to watch over 
the implementation of this landmark law. It is considered by many as 
one of the finest and most effective wildlife and habitat-protection 
laws anywhere in the world.
    We at the Endangered Species Coalition are very proud of the 
Endangered Species Act and the way it has operated in all branches of 
our political system, to carry out its specific legal mandate, passed 
into law by the Congress 40 years ago, and signed by President Richard 
M. Nixon exactly 40 years ago this month--December 28, 1973.
    Perhaps this 40th year Anniversary of the Endangered Species Act is 
just the right place for us all to recall the exact words of President 
Nixon, who was clearly expressing the near-unanimous will of the whole 
American people, in his official remarks while signing the law:

        ``I have today signed S. 1983, the Endangered Species Act of 
        1973. At a time when Americans are more concerned than ever 
        with conserving our natural resources, this legislation 
        provides the Federal Government with needed authority to 
        protect and irreplaceable part of our natural heritage--
        threatened wildlife.

        ``This important measure grants the Government both the 
        authority to make early identification of endangered species 
        and the means to act quickly and thoroughly to save them from 
        extinction. . . .

        ``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 of all 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.''

    President Nixon was speaking, not just about a strong and 
remarkable law, but also about the enormous majorities by which it was 
passed: 92-0 by the Senate, and 355-4 in the House. . . . Quite a 
remarkable expression of bipartisan unanimity for any democratically 
elective body, anywhere in the world . . . this was one of those most 
clear expressions of our will to be found in nearly any statute.
    Its passage back then 40 years ago was also an expression of the 
hopes, of a whole people and their elected representatives--that these 
other most interesting, beautiful and useful native plants and animals, 
who share our Nation with us, will survive, despite the desperate 
condition of many of them at that time . . . and likely, off into the 
foreseeable future. Something had to be done and quickly, reasoned the 
Congress--or not at all, and we would lose all this.
    This grand hope has proved itself and its value many times over in 
the four decades since in spite of many ups and downs. Remember a 
species has to be truly in emergency room status before it can even get 
ON the endangered species list, and only then recovered when 
populations reach a sustainable level. Yet the successes are a great 
tribute. We brought the American peregrine falcon back from just 324 
individuals in 1975 to approximately 3,500 nesting pairs today. The 
American alligator had been hunted and traded to near-extinction. Today 
they number around 5 million from North Carolina through Texas. Even 
species that are not yet ready to come off of the endangered species 
list are seeing great comebacks, such as the southern sea otter. Sea 
otters were down to about 50, yet have rebounded to approximately 2,800 
individuals in recent years.
    But there is something else, Mr. Chair, which we also want to share 
with the committee. It is the recognition, the understanding, that the 
Endangered Species Act is a law uniquely expressive of American values, 
and American culture . . . in short, it is an American law. . . . Thus 
a most powerful statement of our love, as a people, for our land and 
our wildlife.
    Let us remember, reflect back on those events of 1973 once again 
when the legislators of a great nation got together, and they said . . 
. from now on and henceforth, we the American people shall not permit 
any living native plant or wild creature which shares the national 
territory with us, to become extinct.
    And as we have seen, that legislation which passed by the 
overwhelming numbers I mentioned already and was signed by a Republican 
President with the enthusiastic support of his advisors. This is about 
as bipartisan and unified as our feisty people can get.
    Why is this? I have pondered this great achievement many times, 
since I became the Executive Director of the Coalition in 1997, and the 
President in 2006: And I think I have, at last, understood: it is 
because the Endangered Species Act is not just another wildlife 
protection statute. It is more, so much more, than just that: it is a 
moral, profoundly moral law. And thus the political expression of the 
love of a whole people.
    But there is something else, Mr. Chairman, and then I will close: 
The Endangered Species Act was not then, in 1973, and is not now, 40 
years later, some kind of weird anomaly in our political history. I 
have come to realize that too. Most Americans really do love their 
land, and this is a tradition of our national life that goes way, way 
back . . . before anyone even thought of the words ``endangered 
species'' . . . to William Bartram 1778, James Feminore Coopper, the 
Hudson River School, all the way to the establishment of Yellowstone 
National Park a century later, 1872.
    The establishment of Yellowstone, followed by a whole National Park 
System, was so significant and so influential that in 1912, the British 
Ambassador commented: ``National Parks are the best idea America ever 
had''.
    But that wasn't the end of it, this narrative about the innate love 
and concern for wild places and the wildlife they sheltered, by our 
people either. In 1964 along came another very strong and very 
protective law: the Wilderness Act--an even stronger law, again passed 
by huge majorities, and requiring protection of the best of our 
Nation's remaining wild places, and the wild creatures which inhabited 
them.
    Because of this long and consistent past political history 
protecting natural places and their native wildlife, we suggest it is 
no accident that the Endangered Species Act was passed just 9 short 
years later.
    Think of it again: the profound morality of all these statutes, 
together one dramatic and powerful set of expressions: of Americans' 
desire to protect as much as possible of the beauty and wildlife we 
live among.
    Simply put, in my direct experience, the American people of every 
and any party, race, culture . . . religion, all love their parks and 
wildlife and will fight to protect them . . . that fact explains better 
than anything else why the Endangered Species Act has not only 
survived, but also flourished despite all the efforts to weaken it over 
the years.
    And that brings me again to the subject of this hearing: legal 
settlements negotiated under the Endangered Species Act.
    The question is whether it is lawsuits that are hampering species 
recovery or whether it is actually the chronic underfunding of the Fish 
and Wildlife Service and their efforts to recover species. With 
adequate funding, the agency would be able to not only review listing 
petitions in a timely fashion, but they would also have the resources 
to recover species--not just prevent their extinction.
    This is what we believe, and what we have witnessed Mr. Chairman, 
and we appreciate the opportunity to share these thoughts with the 
Committee today. We are all Americans here, and the Endangered Species 
Act and the way it works to fulfill its guarantee--to the whole 
American people as well as to our native plant and animal life--offers 
much to be proud of . . . just as do the National Parks and Wilderness 
Acts.
    I close with the remarks of a retired Marine Corps general Mike 
Lehnert, who also happens to be a very active member of our Endangered 
Species Coalition Board of Directors:
    ``When service members deploy to other lands, they see the 
devastation wrought by governments who do not hold their land in 
stewardship for future generations. It gives those of us in uniform a 
unique perspective of the incredible beauty of our own land, and we 
know that, were it not for the protection of the Endangered Species 
Act, we would be no different from those countries that have failed to 
respect their environment. For us, a country worth defending is a 
country worth preserving.''
    Thank you, Mr. Chairman and Ranking Member DeFazio for the 
opportunity to share our views with the committee today.
                                 ______
                                 
           Questions Submitted for the Record to Brock Evans
    Questions Submitted for the Record by the Committee on Natural 
                               Resources
    Question. The Endangered Species Act has been described by some as 
a ``Federal receivership,'' into which plants and animals are only 
placed if they become threatened with or in danger of extinction given 
that States have primary jurisdiction over wildlife management. When 
State mismanagement has pushed a species to the brink, does it make 
sense to then give the same State authority over species conservation 
and recovery?
    Answer. Often touted by opponents of Federal protection, the claim 
that Endangered Species Act removes the authority of States to manage 
wildlife is inaccurate. In many cases of listed species, the States 
(through memorandum of understanding with FWS) are often the primary 
agencies managing the species on the ground, and they almost always 
work in concert with the Federal agencies on various conservation 
measures aimed at restoring protected species and their habitat. 
Examples include gray wolves and grizzly bears in the N. Rockies 
States, where State wildlife agency staff are the boots on the ground 
working to minimize human-wildlife conflict and managing (and sometimes 
removing) animals that are repeatedly getting into conflict. The act 
also provides Federal funds to States to manage conservation of listed 
species. So, while ultimately the FWS has the final say, the States are 
heavily involved in management of listed species.
    For most species on the brink, the problem isn't State management 
per se, rather it is habitat destruction and fragmentation. Some of 
this is private land that has been lost as quality habitat due to the 
commercial and residential development, and some are Federal lands and 
waters that have been fragmented due to industrial development and 
road-building. Both State AND Federal agencies have been complicit in 
permitting activities that result in the loss of habitat that drives 
species to the brink.
    With regard to State fish and wildlife agencies, much (if not most) 
of their revenue derives from the sale of hunting and fishing licenses. 
As a result, many States have an incentive to protect this revenue 
source, which may incline wildlife managers to favor certain species 
over others. In the case of large carnivores, which are seen by some as 
a threat to huntable big-game species (and thus, State license 
revenue), States have shown a propensity toward more aggressive 
management of large carnivores to reduce threats to ungulates, even 
though there is little evidence that predators are the primary drivers 
of ungulate population control. In most cases, predation is secondary 
to habitat loss, over-hunting, and climate on populations of ungulates.
    Recent analysis by Defenders of Wildlife also show that States do 
not have the necessary resources to protect species. While the budget 
for the Fish and Wildlife Service has decreased, the agency still has 
greater resources for wildlife protections compared to resources that 
States provide for threatened and endangered species.
    Furthermore, State management around Federal lands can greatly 
impact the ability of Federal lands to serve as wildlife havens. For 
instance, Denali National Park in Alaska had previously had a buffer 
zone around the park where wolf hunting was prohibited. Buffer zone 
protections were lifted 4 years ago to devastating impacts according to 
a recent article in the Washington Post, The Last Wolves by Jane 
Goodall. While the National Park Service has been boasting that Denali 
is one of the best places in the world for people to see wolves in the 
wild, this has shifted dramatically. The chance of seeing a wolf has 
dropped to less than 12 percent today from nearly 45 percent just a few 
years ago. Only 59 wolves were found in the last count in Denali. 
Scientists such as Jane Goodall fear that the wolves of Yellowstone 
National Park may be headed in the same direction.
    For those reasons, Federal involvement in protecting species is 
essential. It does not make sense to simply handover complete authority 
to State management without Federal engagement.
    Question. We often hear that the cost of complying with the 
Endangered Species Act is a burden on landowners and businesses. 
However, it is a fact that only 1 percent of ESA consultations result 
in a ``jeopardy'' finding, meaning that 99 percent of proposed projects 
move forward with no restrictions. Isn't it true that the Fish and 
Wildlife Service works with other agencies, businesses, and property 
owners to find ways to allow economic development that is compatible 
with species conservation?
    Answer. Yes, U.S. Fish and Wildlife Service absolutely work with 
other agencies, businesses and property owners to find ways to allow 
economic development. Agencies have become very adept at supporting 
business and property owners to maintain their lands and business 
interests in ways that are compatible with species conservation. The 
idea that one must choose between the environment and economy is simply 
an urban myth spread by wildlife opponents.

    Let me give you an example:

    John and Christine Deck along with their five children, raise cows, 
pigs, chickens, goats and sheep outside of Junction City, Oregon. The 
Decks are very thoughtful in how they ranch, aiming to create wildlife 
habitat and improve the land's productivity while minimizing inputs. 
The Decks' ranch runs along Owens Creek. The waters of Owens Creek flow 
into rivers home to Upper Willamette River steelhead and Chinook 
salmon. Both are listed as threatened under the Endangered Species Act. 
The Decks made the choice to go beyond current Government required 
protections and help ensure their farm does not harm these already-
compromised fish.
    When they moved onto the farm, the Decks made a number of land 
management changes to be more sustainable. For example, their pasture 
was dependent on chemical inputs to maintain its vigor. With support 
from the Natural Resources Conservation Service, which is an arm of the 
U.S. Department of Agriculture, the Decks eliminated the inputs and 
built up organic matter by recapturing manure.
    The Decks' actions were simple; they fenced off the adjoining creek 
from livestock and restored the riparian habitat by planting native 
trees. Since then they have seen a noticeable improvement in the water 
clarity. They also doubled the phosphorus levels in their soil on 
ground where the practice grazing with chickens, creating naturally 
vigorous pastures.
    The Decks understand the need to balance environmental protections 
with support for farmers. As John states, ``Sustainable forestry and 
agriculture are the goals. Incentives for improving soil, sequestering 
carbon, and building sustainable systems will help reach that goal. 
Still, when harvesting degrades the land appreciably we need to rely on 
environmental protections.''
    There are hundreds of other examples of FWS working with other 
agencies, businesses and property owners to find ways to allow economic 
development that is compatible with species conservation. CCAs, CCAAs, 
HCPs, Safe Harbor and No Surprise policies all do just that. States and 
private individuals worked to ensure the Sand Dunes Lizard was not 
listed and are working to prevent the listings of Lesser Prairie 
Chicken, Gunnison and Greater Sage Grouse etc.--because these species 
are finally moving toward listing decisions. Thus, the ESA listing 
process actually encourages this behavior.
    According to FWS, of the more than 219,000 projects reviewed under 
the ESA between 1998 and 2001, less than \1/10\ of 1 percent (367 
projects) were found to potentially jeopardize endangered wildlife. 
Almost all of these projects, 99.7 percent either occurred on public 
land or required some type of Federal action to go forward. Most of the 
projects were allowed to go forward after taking steps to limit harm to 
species.\1\
---------------------------------------------------------------------------
    \1\ U.S. Fish and Wildlife Service, ``Consultations with Federal 
Agencies, section 7 of the Endangered Species Act,'' February 2002.
---------------------------------------------------------------------------
    Question. This year, the Majority has used delays in the 
development of water resources projects as an excuse to short circuit 
the ESA and NEPA processes, when there is NO evidence that these delays 
are caused by anything other than a lack of funding. Still, they press 
on arguing that they are not undermining environmental laws, only 
trying to ensure that decisions get made in a timely fashion. While we 
all support timely decisions, it seems that this support, for some, 
only applies when the goal is to develop natural resources, but not 
when it comes to protecting them. In 2007, for example, the Washington, 
DC District Court noted that the average delay in listing a candidate 
species was 10.6 years. So, the question is, does it seem reasonable to 
set hard, and often very short, deadlines for NEPA and ESA reviews that 
agencies must comply with when it comes to building a dam for example, 
but then to not expect that the agencies should also live by hard 
deadlines when it comes to making a determination related to the 
listing of a species?
    Answer. It has always struck us as unreasonable, not to mention 
logically inconsistent, to demand very strict timetables for developing 
natural resources but not when it comes to protecting them. As cited 
above lack of funding is often the determining factor for projects not 
moving forward. For example, in California the two biggest water 
impoundments built in the last 20 years are Los Vaqueros Reservoir in 
Contra Costa County, and Diamond Valley reservoir in Riverside County. 
Los Vaqueros serves the people of eastern S.F. area, and Diamond Valley 
is a metropolitan Water District impoundment serving the L.A. basin. 
Both of these went through normal NEPA and ESA compliance review, and 
were built primarily because the agencies involved paid for them. Other 
actions related to water here, namely the Klamath basin settlement 
agreements have been waiting for 4 years for funding, mainly from the 
Federal Government. They, too, have passed NEPA and ESA compliance 
reviews. These projects were not blocked by ESA or NEPA compliance, but 
by lack of funding.
    On developing natural resources and streamlining environmental 
reviews:
    The National Environmental Policy Act and coordination with 
agencies like the U.S. Fish and Wildlife Service disclose the true 
environmental and economic costs of projects and allow decisionmakers 
and the public to determine whether those projects are deserving of 
investment by Federal taxpayers. They produce better, less damaging 
projects and have prevented fundamentally ill-conceived projects from 
advancing. This has saved hundreds of millions in taxpayer dollars 
while protecting wetlands vital to flood protection, migratory 
waterfowl, and clean water. In the face of increasing fiscal 
challenges, severe storms, floods, droughts, and sea level rise, we 
simply cannot afford to undermine these critical safeguards.
    Streamlining environmental reviews as seen in bills like the 
Transportation bill, Water Resources Development Act and Restoring 
Healthy Forest for Healthy Communities Act are deeply concerning. While 
the majority of the streamlining is focused on NEPA, it is not limited 
to it and could include streamlining of ESA consultations and 
biological opinions. Project acceleration could apply to huge water 
projects including dams, draining wetlands and estuaries, beach 
renourishment, bridges, river and stream channel alterations of all 
sizes, harbor construction and maintenance, river and harbor channel 
dredging, and other environmentally devastating projects.
    Many of the areas where these projects are proposed are home to 
endangered and threatened species. Without proper evaluations of 
impacts to habitat and species survival, hundreds of species could face 
considerable negative impacts over time. Not only could species and 
their long term survival be directly undermined by streamlining 
provisions, but its wide range and permanent implications could have 
overarching impacts to biodiversity as a whole.
    Finally, these streamlining provisions would set an extremely 
dangerous precedent and open the door to similar streamlining 
provisions in other bills that would similarly weaken NEPA, the ESA and 
other Federal environmental statutes with respect to other Federal 
projects and actions, thereby allowing for more development, and more 
habitat impacts. For example, Sen. Murkowski (R-AK) has already 
suggested implementing the exact same streamlining language for energy 
development projects. This would undermine ESA review for huge energy 
related projects including transcontinental pipelines, wind turbines, 
coal mining, and major on and off shore oil drilling and exploration 
projects. Eventually all development and infrastructure will have 
streamlined environmental review.
    Environmental reviews are often blamed for delays, however, 
according to Michael Replogle of the Institute for Transportation and 
Development Policy, only 3 percent of Federal highway projects actually 
undergo an environmental impact statement process. He says efforts to 
reduce delays should focus on diminishing unnecessary and redundant 
bureaucracy and improving cost-effectiveness. The same could be said of 
the listing process for threatened and endangered species.
    These are just a few examples of the general pattern . . . wherein 
the really long delays in completion of Federal development projects, 
especially water projects, is not because of the mandated environmental 
reviews--which are neither costly nor particularly time-consuming (as 
compared with actual construction monies). Rather, and quite often, 
delays after those crucially important reviews occur because of a lack 
of Federal funding, politics and bureaucracy--not because of the 
reviews necessary to protect our lands and waters. We can furnish more 
examples of this general pattern if necessary.
                                 ______
                                 
    The Chairman. Thank you very much, Mr. Evans, for your 
testimony. And now, for purposes of introduction, I recognize 
Mr. Stewart from Utah for purpose of introduction.
    Mr. Stewart?
    Mr. Stewart. Thank you, Mr. Chairman, and thank you for 
letting me visit your committee, once again. It is good to be 
among friends who share the same interests as I do. And it is 
my pleasure to introduce one of my constituents, and a good 
friend, and a great leader, Mr. Carl Albrecht from Garkane 
Cooperative Energy.
    He has been employed there for more than 40 years. He has 
been the CEO for 21 years. And Garkane serves 14,000 customers, 
has over 400 miles of transmission lines, 2,200 miles of 
distribution lines. They serve six counties in south-central 
Utah, and two counties in northern Arizona.
    Interestingly, as he will indicate in his testimony, they 
also serve four national parks, two national monuments, three 
national forests, besides BLM lands, and two Native American 
tribes. It is a great example of American innovation and 
resourcefulness.
    And, Mr. Albrecht, as I have said, I have reviewed your 
testimony. As you indicated, is an example of a Keystone Cops 
scenario of really bad public policy, policy which makes it 
harder for working families, policy which makes it hard to 
create jobs, and frankly--and I think worst of all--in some 
cases it is policy that destroys the trust between American 
people and the Government. And I look forward to your 
testimony, sir, and thank you for being with us.
    And, Mr. Chairman, I yield back.
    The Chairman. I thank the gentleman for the introduction.
    And, Mr. Albrecht, you are recognized for 5 minutes.

 STATEMENT OF CARL ALBRECHT, CEO AND GENERAL MANAGER, GARKANE 
                       ENERGY, LOA, UTAH

    Mr. Albrecht. Thank you, Chairman Hastings, and the 
committee, and Congressman Stewart, for the opportunity to 
visit with you this morning. My name is Carl Albrecht. I am the 
CEO for Garkane Energy, a rural electric co-op serving 
customers in south-central Utah and northern Arizona. We will 
celebrate our 75th anniversary next year. I believe we have the 
distinction of serving more national parks and monuments than 
any utility in the Nation. Our power lines enable the National 
Park Service to showcase these spectacular areas to people from 
throughout the world.
    Each day we face the challenge of striving to balance 
between environmental desires and economic realities. We take 
very seriously the impact on the animals we live and work 
around, and believe it is important to protect the wildlife in 
our areas. The Endangered Species Act, a well-intended law, 
has, through the years, altered rural economies and 
communities. I started working at Garkane the year before 
Congress passed the ESA, and it seems to have occupied much of 
my career, ever since.
    Not long ago, Garkane had an incident where we had acquired 
the right of way to build a power line, primarily on private 
and State lands. We were abruptly ordered to stop construction 
when it was determined that 2 acres of Utah prairie dog habitat 
were within a 350-foot buffer of the project's right of way. 
The habitat was on private land adjacent to a major highway, 
and was not mapped by the State Department of Wildlife 
Resources. Work was delayed 9 months, until consultants for the 
Fish and Wildlife Service, paid for by our customers, could 
complete a prairie dog survey. To restart work on the project, 
Garkane agreed to pay $20,000 to the National Wildlife Defense 
Fund, and hire a biologist to monitor all the work within the 
350 feet of the prairie dog habitat.
    Last month, as part of the construction of a transmission 
line which took 7 years and $2 million to permit, we were 
required to fly in by helicopter 7 power poles to locations 
that were within yards of an existing public access road. This 
happened because the sites were contained in a prairie dog 
conservation area. Placing the power line in a prairie dog 
conservation area because a sage grouse lek, a potential 
strutting ground, was identified along the most economic 
alternative route for the line studied in an EIS. The resulting 
shift in routes required poles to be set with a helicopter and 
meant an additional single day expense for Garkane of over 
$150,000.
    Realize that while we tiptoe between a sage grouse lek and 
a prairie dog conservation area, there are existing roads and 
power lines all around us. It simply becomes a real-life 
version of the old floor game, Twister. Recognize this all 
takes place while private land owners can obtain permits to 
kill prairie dogs on their land, and sage grouse are hunted and 
killed by sportsmen in Utah.
    Recently, the Fish and Wildlife Service identified nearly 
150 new species as candidates for the Endangered Species Act. 
The entire Nation can expect more and more listings as the Fish 
and Wildlife Service works its way through a backlog of 
candidates being considered for protection. If folks in your 
State have not been hit by the ever-escalating cost of doing 
business and dealing with the ESA, just wait. Your phone will 
soon be ringing.
    Compared to the dollars authorized by Congress here in 
Washington, DC, the costs incurred by Garkane to comply with 
the ESA regulations would be lost in congressional cafeteria 
cash registers. But when those costs end up in the electric 
rates for Garkane customers, it becomes real money. The few 
customers at Garkane and similarly affected utilities end up 
paying all the freight for litigation activities designed to 
safeguard various species for protection by the Government 
acting on behalf of all the citizens.
    Garkane and other co-ops across the Nation believe that in 
this 40th year of the act, we must look at some type of reform 
to alleviate the ever-escalating burden placed on the backs of 
a few. Garkane's locally elected board of directors finds 
itself constantly asking why they, along with their friends and 
neighbors, are with increasing frequency being asked to pay 
more and more to meet ESA regulations, and wondering why, if 
the intent is to protect a species on behalf of all the 
Americans, the rest of the Nation's citizens don't share in the 
cost for protection.
    Locally owned electric co-ops across the country continue 
to work to keep the electricity flowing to millions of homes at 
a price homeowners can afford. Seventy-five years ago, the 
Federal Government worked with us to turn the lights on in part 
of Utah and Arizona by bringing electricity to their homes. 
Garkane's power lines today follow the same general paths they 
have taken all these years, yet the Federal Government appears 
more inclined to hinder and delay, rather than help and 
develop.
    I believe it is time we looked back at what it means to 
have electricity in our homes, and other things that made this 
Nation great, and a more rational approach to the ESA. Thank 
you.
    [The prepared statement of Mr. Albrecht follows:]
 Prepared Statement of Carl Albrecht, CEO, Garkane Energy Cooperative, 
                            Inc., Loa, Utah
    Thank you for the opportunity to visit with you this morning. My 
name is Carl Albrecht. I'm the CEO for Garkane Energy, a rural electric 
cooperative serving customers in south-central Utah and northern 
Arizona. Garkane will celebrate its 75th anniversary next year. I 
believe we may have the distinction of serving more national parks and 
national monuments than any other utility in the Nation. The power 
lines that serve these areas have enabled the National Park Service to 
showcase to the world these spectacular places. Each day we face the 
challenge of striving for balance between environmental desires and 
economic realities. We take very seriously the impact on the animals we 
live and work around and believe it's important to protect and live in 
harmony with the wildlife in our areas.
    The Endangered Species Act [ESA], a well-intended law, has through 
the years altered rural economies and communities. I started working at 
Garkane the year before Congress passed the ESA and it seems to have 
occupied much of my career ever since!
    Not long ago, Garkane had an incident where we had already acquired 
the right of way to build a power line primarily on private property 
and State owned lands. A small portion of the line was on Bureau of 
Land Management [BLM] property where a National Environmental Policy 
Act [NEPA] analysis had been completed. We were abruptly ordered to 
stop construction when it was determined that 2 acres of Utah Prairie 
Dog [UPD] habitat were within a 350, buffer of the project's right of 
way. The habitat was on private land, adjacent to a major U.S. Highway 
and was not mapped by the State Department of Wildlife Resources. Work 
was delayed for 9 months until consultants for the U.S. Fish and 
Wildlife Service [USFWS] (paid for by Garkane customers) could complete 
a UPD survey. To restart work on the project, Garkane agreed to pay 
$20,000 to the National Wildlife Defense Fund and hire a biologist to 
monitor all the work within 350, of the UPD habitat.
    Last month as part of the construction of a transmission line, 
which took us 7 years and $2 million to permit, we were required to fly 
in, by helicopter, 7 power poles to locations that were within yards of 
an existing public access road. This happened because the sites were 
contained in a Utah Prairie Dog conservation area. Placing the power 
line in a Prairie Dog conservation area happened because a sage grouse 
``lek'' (a potential strutting ground) was identified along the most 
economical alternative route for the transmission line studied in an 
Environmental Impact Statement. The resulting shift in routes, 
requiring poles to be set with a helicopter, meant an additional single 
day expense for Garkane of over $150,000. Realize that while we tip toe 
between a Sage Grouse lek and a Prairie Dog Conservation Area, there 
are existing access roads and existing power lines all around us. It 
simply becomes a real-life version of the old floor game ``Twister.'' 
And recognize this all takes place while private landowners can obtain 
permits to kill prairie dogs on their land and Sage Grouse are hunted 
and killed by sportsmen in Utah.
    Recently the U.S. Fish and Wildlife Service identified nearly 150 
new species as candidates for endangered species act protection. The 
Service looks at protecting America's most at-risk wildlife as one of 
their highest priorities. The entire Nation can expect more and more 
listings as the USFWS works its way through a backlog of candidates 
being considered for protection. If folks in your State have not yet 
been hit by the ever escalating costs of doing business and dealing 
with the ESA, just wait, your phone will soon be ringing. Federal 
agencies begin treating some species as threatened before they are ever 
listed under the ESA. Such is the case with the Sage Grouse in our 
area. Some scientific documents on Sage Grouse released by the 
Department of the Interior have raised serious questions about the data 
and analysis used in the reports along with concerns over potential 
conflicts of interest among peer reviewers of the documents. 
Nevertheless, we continue incurring expenses to mitigate impacts based 
on the information derived from these reports.
    Compared to the dollars authorized by Congress here in Washington, 
DC, the costs incurred by Garkane to comply with ESA regulations would 
be lost in congressional cafeteria cash registers. But when those costs 
end up in electric rates for Garkane customers, it becomes real money. 
The few customers at Garkane, and at similarly affected utilities, end 
up paying all the freight for mitigation activities designed to 
safeguard various species selected for protection by the U.S. 
Government acting on behalf of all U.S. citizens.
    Garkane and other rural electric cooperatives across the Nation 
believe that, in this the 40th year of the act, we must look at some 
type of reform to alleviate the ever escalating economic burden being 
placed on the backs of the few. Garkane's locally elected board of 
directors finds itself constantly asking why they, along with their 
friends and neighbors, are with increasing frequency, being asked to 
pay more and more to meet ESA obligations and wondering why, if the 
intent is to protect a species on behalf of all Americans, the rest of 
the Nation's citizens don't share in the costs for protection.
    In the rural electric cooperative world we often quote a farmer 
giving witness in a rural Tennessee church in the early 1940s when he 
said, ``Brothers and sister, I want to tell you this. The greatest 
thing on earth is to have the love of God in your heart, and the next 
greatest thing is to have electricity in your house.'' Locally owned 
Rural Electric Co-ops across the country continue working to keep 
electricity flowing to millions of homes--at a price homeowners can 
afford.
    Seventy-five years ago the Federal Government worked with Garkane 
to turn the lights on in rural parts of Utah and improve the lives of 
its citizens by bringing electricity to their homes. For the most part, 
Garkane's power lines today follow the same general paths they have 
taken for all those years, yet now the Federal Government appears more 
inclined to hinder and delay rather than help and develop, unless 
you're a prairie dog or a sage grouse, or a goshawk, or a pygmy rabbit 
. . . the list goes on and on. I believe It's time we look back at what 
it means to have electricity in our homes, and other things that make 
this Nation great, and return to a sense of reason and a more rational 
approach to the Endangered Species Act.
    Thank you for the opportunity to testify, I would be pleased to 
answer your questions.
                                 ______
                                 
    The Chairman. Thank you very much, Mr. Albrecht, for your 
testimony. And last, but certainly not least, I want to welcome 
Ms. Megan Maxwell, an independent biologist from Broomfield, 
Colorado. Ms. Maxwell, you are recognized for 5 minutes.

 STATEMENT OF MEGAN MAXWELL, CONSULTING BIOLOGIST, BROOMFIELD, 
                            COLORADO

    Ms. Maxwell. Thank you, Mr. Chairman and members of the 
committee. I appreciate the opportunity to share my view with 
you. I am a consulting biologist, and I have conducted an in-
depth review of BLM's sage grouse national technical team 
report, the NTT Report. As part of my review, I compared the 
peer review comments on the draft report to the final report, 
to see if the concerns raised during the peer review period had 
been addressed. I thank the Chairman for his letter to 
Secretary Salazar, which led to partial release of the peer 
review comments, and which helped me in my review of the NTT 
Report.
    I would like to bring to your attention three key issues 
with regards to the NTT Report.
    First, peer review of the NTT Report and internal emails 
between NTT members obtained through a FOIA request by Idaho 
Governor Otter's office suggests that the report does not 
represent the best available science, but rather, a policy 
document that hastily and selectively applied scientific 
studies, and consists of invalid assumptions, 
mischaracterization and misrepresentation of sources, omission 
of existing programs that benefit sage grouse, personal 
opinions substituted in place of science, unachievable required 
design features and best management practices, and policy 
inconsistent with FLPMA and its associated regulations.
    The second is with regard to the scale and the one-size-
fits-all approach advanced in the NTT Report. BLM manages 47 
million acres of sage grouse habitat, which is located across 
11 Western States, and which consists of highly varied 
ecological conditions, as well as varied threats to sage grouse 
and its habitat. The NTT Report provides habitat 
recommendations for sage grouse across its entire range, 
including specific habitat prescriptions or goals which would 
apply to all sage grouse seasonal habitats.
    Although this one-size-fits-all management approach may be 
convenient for BLM to administer, it is completely 
inappropriate for sage grouse, because of their broad 
ecological range, variations in population traits and 
characteristics across their range, and the variability and 
habitat conditions and threats within the range. These 
variations make managing sage grouse and their habitat a 
complex task that must consider site-specific conditions and 
variables.
    Simplifying sage grouse management by creating range-wide 
habitat prescriptions or percent disturbance thresholds fails 
to target specific sub-regional and population scale factors, 
as well as seasonal habitat preferences. The simplistic one-
size-fits-all approach advanced in the NTT Report completely 
fails to recognize this variation and complexity, which is a 
critical flaw. Consequently, the habitat management 
recommendations in the NTT Report will likely fail to protect 
sage grouse and sage grouse habitat range-wide, and could even 
result in unintended adverse consequences, like increased risk 
of catastrophic fire and habitat destruction in areas already 
under extreme threat of wildlife.
    The third issue is the NTT Report fails to adequately 
address the primary threat to sage grouse, range-wide, and the 
principal threat in the western portion of its range, which is 
the fire and invasive species cycle, and, instead, focuses its 
attention on activities that BLM already regulates, without 
giving a regard to the degree to which these activities are 
present across the entire range. The threat of fire and 
invasive species cannot be ignored. It does not make sense to 
apply conservation measures which are not specifically designed 
to address this primary threat.
    If protection of sage grouse and its habitat are going to 
be effective, then properly identifying what the threats are, 
where they are present, and to what degree they are present 
would be the obvious first step. Only then can the most 
effective conservation measures be implemented. The failure by 
BLM to appropriately identify the threats to each population, 
and then apply tailored conservation measures to address the 
identified threats, will lead to implementation of ineffective 
conservation measures, which will not likely provide Fish and 
Wildlife with the data it needs to make a ``not warranted'' 
finding during the upcoming listing process.
    All that said, there is an opportunity to remedy the 
problem associated with the NTT Report: (1) Fully and evenly 
implement its existing policy manual, 6840, which Fish and 
Wildlife identified as having potential to adequately protect 
sage grouse in its warranted but precluded determination; (2) 
properly identify the threats at a population level, and then 
consider the various conservation strategies available; and, 
(3) take the opportunity to consider more recent studies, as 
well as suggestions made by two other DOI agencies, the USGS 
Sage Grouse Baseline Report, and Fish and Wildlife's COT 
Report, which emphasized scale-appropriate and threat-specific 
conservation measures, and collaboration with stakeholders, 
including land users, private parties, and State and local 
governments.
    A species as complex as the greater sage grouse requires 
this level of collaboration, and all interested parties should 
have a seat at the table, given the broad implications if 
improper management is carried forward.
    Thank you.
    [The prepared statement of Ms. Maxwell follows:]
Prepared Statement of Megan Maxwell, Consulting Biologist, Broomfield, 
                                Colorado
                    i. introduction and background:
    On March 23, 2010 the United States Fish and Wildlife Service 
[USFWS] issued a Warranted but Precluded [WBP] determination for the 
Greater sage-grouse (sage-grouse). Loss of habitat and fragmentation 
due to wildfire, energy development, urbanization, agriculture, and 
infrastructure development were cited as the primary threats to the 
species (75 Fed. Reg. 13910 at 13924, 13927-28, 13931). The Bureau of 
Land Management [BLM] was identified as having a unique opportunity to 
conserve the sage-grouse through its resource management plans [RMPs] 
i.e. land use plans, because approximately 52 percent of the sage-
grouse habitat is under the BLM's jurisdiction (75 Fed. Reg. 13910). 
Then on September 9, 2011 USFWS entered into a court-approved 
settlement agreement with several environmental groups which formalized 
a schedule for making listing determinations for 251 candidate species 
nationwide, including the sage-grouse. The court-approved schedule 
indicates that a decision on whether to list or remove sage-grouse 
range-wide is due by September 2015 (USFWS, ``Endangered Species Act 
Workplan Fiscal Year 2013 to Fiscal Year 2018--MDL Packages and Other 
Court Settlement Agreements,'' at 12) and which seems to be fueling 
BLM's response to the WBP determination.
    In response to the WBP determination to list sage-grouse as a 
candidate species, BLM chartered the Sage-Grouse National Technical 
Team [NTT] which was charged with developing policy and management 
actions in order to manage sage-grouse conservation and protection 
under its jurisdiction. A Report on National Greater Sage-Grouse 
Conservation Measures (NTT Report) was subsequently published on 
December 21, 2011. Then 6 days later, on December 27, 2011 the 
Department of the Interior [DOI] issued Instruction Memorandum [IM] 
2012-044 to provide direction to BLM for considering sage-grouse 
conservation measures, identified in the NTT Report, during the land 
use planning/National Environmental Policy Act [NEPA] process which was 
already underway in accordance with the 2011 National Greater Sage-
Grouse Planning Strategy. IM 2012-044 directs BLM to ``consider all 
applicable conservation measures when revising or amending its RMPs in 
Greater Sage Grouse habitat. The conservation measures developed by the 
NTT . . . must be considered and analyzed, as appropriate . . . and 
incorporated into at least one alternative in the land use planning 
process.'' IM 2012-044 also provides for adjustments to the 
conservation measures in order to take into account local conditions 
(Department of the Interior, Instruction Memorandum 2012-044 ``BLM 
National Greater Sage-Grouse Land Use Planning Strategy.'' December 27, 
2011).
    On November 20, 2012 in the U.S. District Court of Idaho in a 
hearing on remedies following a decision made on summary judgment in 
Western Watershed Project v. Salazar, No. 4:08-CV-516-BLW, U.S. 
District Court of Idaho, 2011, docket no. 131 (hereafter WWP v. 
Salazar), the court found during a 3 day evidentiary hearing that BLM's 
NTT Report represented the ``best available science.'' Then on March 
11, 2013 BLM's Assistant Director Edwin Roberson entered a declaration 
in the U.S. District Court of Idaho indicating that the conservation 
measures recommended in the NTT Report are being incorporated into 79 
RMPs, across 10 States (Western Watershed Project v. Salazar, 2013, 
Roberson declaration). Because this declaration was made while the NEPA 
process was (and still is) underway to evaluate the impacts associated 
with implementing the conservation measures in the NTT Report on 
millions of acres of the public domain, and uses ranging from 
recreation, to grazing, to mineral and energy development, this 
declaration was pre-decisional and therefore contrary to the act and 
its implementing regulations at 40 CFR Sec. Sec. 1502.2(f), 1500.1(b).
                           ii. the ntt report
    The NTT Report provides habitat management recommendations for 
sage-grouse priority habitat across its entire range, including 
prescriptive restrictions on access and use of lands within priority 
habitat including:

   Three percent limit on surface disturbance;
   A 50-70 percent sagebrush cover threshold;
   No surface occupancy [NSO];
   One disturbance per section (640 acres);
   Right-of-Way [ROW] exclusion and avoidance areas;
   Mineral withdrawals.

    BLM maintains the NTT conservation measures are required to respond 
to the WBP determination and describes BLM's interpretation of USFWS' 
finding in the WBP determination that BLM lacks adequate regulatory 
tools to conserve sage-grouse, and therefore new regulatory mechanisms 
must be developed. However, throughout the WBP determination USFWS 
repeats over and over its inability to assess BLM's then existing 
regulatory mechanisms because of how the information was reported to 
them, and because of the uneven application and implementation across 
BLM offices:

        ``. . . the BLM data call reported information at a different 
        scale than was used for their landscape mapping. Therefore, we 
        lack the information necessary to assess how this regulatory 
        mechanism effects sage-grouse conservation . . .'' (Id. at 
        13976).

    USFWS also identified BLM's 2008 Manual 6840: Special Status 
Species Management as potentially having adequate regulatory 
protections for the sage-grouse:

        ``As a designated sensitive species under BLM Manual 6840, 
        sage-grouse conservation must be addressed in the development 
        and implementation of RMPs on BLM lands . . . if an RMP 
        contains specific direction regarding sage-grouse habitat, 
        conservation, or management, it represents a regulatory 
        mechanism that has potential to ensure that the species and its 
        habitats are protected . . . during decisionmaking on BLM lands 
        . . . However, the information provided to us by BLM did not 
        specify what requirements, direction, measures, or guidance has 
        been included in the newly revised RMPs to address threats to 
        sage-grouse and sagebrush habitat. Therefore, we cannot assess 
        their value or rely on them as regulatory mechanisms for the 
        conservation of sage-grouse . . . Although RMPs, AMPs, and the 
        permit renewal process provide an adequate regulatory 
        framework, whether or not these regulatory mechanisms are being 
        implemented in a manner that conserves sage-grouse is unclear'' 
        (75 Fed. Reg. 13910 at 13975-77, emphasis added).

    USFWS goes on to discuss how it is unable to assess fire management 
and invasive species management, again, because of the uneven 
application and implementation across BLM offices (See Id. at 13977). 
It seems clear from the above-cited sections of the USFWS' WBP 
determination that the agency was seeking evidence that the then 
current regulatory mechanisms would be implemented and documentation of 
the effectiveness of those mechanisms. USFWS did not say BLM's 
regulatory mechanisms were inadequate; nor did the agency demand that 
BLM develop new regulatory mechanisms. Rather the ``Factor D-inadequate 
regulatory mechanisms'' finding was made because of incomplete data 
given to the agency during the listing process.
    The primary objective of the NTT Report is ``to protect sage-grouse 
habitats from anthropogenic disturbances that will reduce distribution 
or abundance of sage-grouse'' (NTT Report at 7). However this objective 
inappropriately assumes that anthropogenic disturbances are the primary 
threat to sage-grouse range-wide, are universally negative-regardless 
of whether impact minimization and mitigation practices are utilized, 
and that sage-grouse will respond positively to a decrease in 
anthropogenic disturbances, without providing data to support the 
assumption. Most importantly, the NTT Report fails to adequately 
address the fire and invasive species cycle--one of the main threats to 
sage-grouse habitat range-wide (75 Fed. Reg. 13910 at 13931-4) and the 
principal threat in the western part of the range.
                     iii. review of the ntt report
    Peer-review of the NTT Report conducted prior to its issuance 
suggests that it does not in fact represent the ``Best Available 
Science'' and instead consists of (NTT Peer Review Comments attached 
herewith):

   Invalid assumptions;
   Mischaracterization and misrepresentation of sources;
   Omission of existing programs that benefit sage-grouse;
   Personal opinion substituted in place of science;
   Unachievable required design features/best management 
        practices; and
   Policy inconsistent with Federal Land Policy and Management 
        Act of 1976 (FLPMA, 43 U.S.C. 1701 et. seq.) and associated 
        regulations.

    The NTT Report also relies on studies which have been criticized 
for significant mischaracterization of previous research; substantial 
errors and omissions; lack of independent authorship and peer review; 
methodological bias; a lack of reproducibility; invalid assumptions and 
analysis; and inadequate data, leading to considerable flaws in the 
recommendations contained in the NTT Report (Maxwell 2013, hereafter 
Maxwell and attached herewith).
    Other deficiencies present in the NTT Report and associated studies 
are the lack of independent authorship, methodological issues, and 
misleading use of citations. For example, three of the authors of the 
NTT Report are also the authors, researchers, and editors of three of 
the most cited sources in the NTT Report. This reliance on a select and 
limited group of authors is highly questionable because it does not 
ensure objectivity or consider multiple scientific observations and 
conclusions, a critical component of the scientific analysis and peer-
review process.
    Other data quality issues range from failure to identify limiting 
factors, inadequate sampling, and use of inferior equipment. The 
significance of these deficiencies is described in detail in R.R. 
Ramey, Review of Data Quality Issues in A Report on National Greater 
Sage-Grouse Conservation Measures Produced by the BLM Sage-Grouse 
National Technical Team [NTT], Dated December 21, 2011. Unpublished 
Report, September 19, 2013, hereafter Ramey 2013.
    All of the above mentioned issues call into question the validity 
of the NTT Report as a whole. Without sound science, and sound 
application of the science the NTT Report is effectively a species-
centric advocacy document. Of particular concern is the ``one-size-
fits-all'' application of the conservation measures which is not the 
best approach to sage-grouse conservation and may overlook important 
opportunities to protect and enhance sage-grouse habitat. As described 
below, particular attention and criticism needs to focus on scale, 
habitat characterization, disturbance thresholds, and lack of 
independent peer review.
a. Scale
    The NTT Report proposes conservation measures and goals that are 
range-wide in scale, including 70 percent canopy cover, 3 percent 
disturbance cap, and 15-25 percent canopy cover in all sage-grouse 
habitats. Recommending a ``one-size-fits-all approach'' is not 
optimal--if not completely inappropriate and counter-productive at a 
range-wide scale, because the distribution of sage-grouse populations 
is vast, encompassing different ecological zones in which there are 
different kinds of risks to the sage-grouse and its habitat, which must 
be managed differently. Additionally, sage-grouse behavior indicates 
sagebrush cover preference differs between seasons, and thus using a 
single percent cover is inappropriate. As one peer reviewer of the NTT 
Report states:

        ``. . . if this document is to be effective in defining 
        conservation measures on a range-wide basis, it must take into 
        account the considerable large-scale variation in plant 
        community ecology present within the range of the sage-grouse. 
        Otherwise we are faced with species-centric generalizations of 
        the effects of ecological processes that may or may not 
        represent the ecological reality'' (NTT Peer Review Comments at 
        4).

    The concern related to scale and ``one-size-fits-all'' management 
contained in the NTT Report was expressed in a letter dated May 16, 
2013 to Secretary Jewell from the Western Association of Fish and 
Wildlife Agencies [WAFWA]:

    ``. . . Simply put, we believe it would represent a setback to 
sage-grouse conservation . . . Applying a ``one-size-fits-all'' 
approach focusing solely on the NTT report is not appropriate for 
management of the variations that occur across the sage-grouse range . 
. . Our concern is that using the NTT, in vacuum, would undermine sage-
grouse conservation range-wide.''

    In an effort to help inform management and conservation strategies 
so that they are consistent within ecological regions rather than State 
boundaries, WAFWA delineated seven Management Zones [MZs] based on 
ecological and geographical similarities (See USGS Report at 10); 
however the NTT did not recommend use of MZs as an appropriate scale in 
the NTT Report. The reason why ``one-size-fits-all'' management is 
inappropriate for sage-grouse is because of their broad ecological 
range, variations in population traits and characteristics across their 
range, and the variability in habitat conditions and threats within 
this range. These variations make managing sage-grouse a complex task 
that must consider site-specific conditions and variables. Simplifying 
sage-grouse management by creating range-wide habitat prescriptions or 
percent thresholds fails to target the specific sub-regional and 
population scale factors which are important because the various 
sagebrush biomes which support sage-grouse vary, and sage-grouse have 
varying seasonal habitat requirements within those biomes. For example 
dense cover and low-growing types of sagebrush might be preferred 
during nesting, but significantly less dense sagebrush cover and 
abundance in forbs and grasses might be preferred for late brood-
rearing. Additionally, it is important to consider that sagebrush may 
not be as densely distributed in drier regions than wetter regions as a 
result of natural processes. The ``one-size-fits-all'' approach 
advanced in the NTT Report completely fails to recognize this variation 
and complexity which is a critical flaw (See the attached map to 
provide context for the large area that would be subject to the NTT 
Report).

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

b. Habitat Requirements/Thresholds
    To achieve its primary objective the NTT sets forth sub-objectives 
in the NTT Report. Two of the four sub-objectives assert that a minimum 
range of 50-70 percent of the acreage in sagebrush cover is required 
for long-term persistence of sage-grouse, and that discrete 
anthropogenic disturbances in priority habitat must be limited to less 
than 3 percent of the total sage-grouse habitat regardless of ownership 
(NTT Report at 6-7). These objectives are not supported by the 
literature. Limiting disturbance to less than 3 percent of the total 
habitat is arbitrary. The NTT fails in its Report to show how the 
``one-size-fits-all'' goal of 50-70 percent sagebrush cover in priority 
habitat and the 3 percent disturbance cap are necessary, reasonable, 
achievable, would actually benefit sage-grouse, and not result in 
unintended adverse consequences to sage-grouse or other species.
    Additionally, two of the most frequently used sources with respect 
to vegetative habitat requirements, provide that ``adequate'' 
vegetative cover for sage-grouse, ranges from 15 percent to 25 percent 
sagebrush cover, greater than 10 percent forbs, greater than 10 percent 
grass canopy, and even smaller percentages depending on the season or 
ecological location (Connelly et. al. 2000, and Hagen et. al. 2007). 
These studies do not include data that support the NTT's conclusion 
that 50-70 percent sagebrush canopy is required by sage-grouse range-
wide or within all seasonal habitats in order to persist.
    In addition, the 70 percent canopy cover goal disregards the 
importance of healthy understories required for sage-grouse to survive 
and rear broods, and fails to consider the fact that not all sagebrush 
habitats are suitable; without healthy understories a sagebrush 
dominated landscape may in fact be unsuitable to support sage-grouse. 
This is a significant omission that must be addressed in order for the 
conservation measures to be scientifically sound. As the NTT Report 
stands now, omitting discussion of understory health will result in 
unintended, adverse consequences to sage-grouse and the sagebrush 
ecosystem, including increased risk of fire (See Maxwell at 5-6).
    In addition to the potential for increased fire resulting from 
inadequate management of understory vegetation, there is substantial 
scientific authority showing the importance of understory to sage-
grouse. Grass height and cover are important for adequate nesting 
habitat. Early brood-rearing habitats are best when they contain 
abundant forbs and insects for foraging, with a 14 percent sagebrush 
canopy cover (Connelly et. al. 2000).
    In a report published by the United States Geological Survey [USGS] 
at the request of the BLM, and in response to the WBP determination, 
USGS indicates that habitat fragmentation ``generally begins to have 
significant effects on wildlife when suitable habitat becomes less than 
30 to 50 percent of the landscape'' (Manier et al 2013 at 26, hereafter 
USGS Report). The corollary is that non-suitable habitat, does not have 
a significant effect on wildlife until it reaches 50-70 percent of the 
landscape, which directly contradicts the NTT Report's 70 percent cover 
threshold.
    The USGS Report further calls into question the sagebrush cover 
objective in the NTT Report with this statement:

        ``The natural variation in vegetation, the dynamic nature of 
        sagebrush habitats, and the variation in the habitats selected 
        by sage-grouse across a landscape imply that characterizing 
        habitats using a single value or narrow range of values, for 
        example, 15- to 25-percent sagebrush-canopy cover in breeding 
        habitat (Citation omitted), is insufficient to describe sage-
        grouse habitat requirements. The differing seasonal habitat 
        requirements of sage-grouse dictate that multiple vegetation 
        attributes, across the landscape and in particular sites, are 
        important, reinforcing emphasis that combinations of shrub 
        overstory and herbaceous understory, which are both important 
        as habitat components during different seasons, are important 
        in combination and across scales'' (USGS Report at 24, internal 
        citation omitted).

    The 3 percent disturbance cap is not supported by the data either, 
and instead represents the authors' opinions in the cited studies. 
Outside review of the studies indicate that three of the sources cited 
in favor of a 3 percent disturbance cap (Johnson et al. 2011; Naugle et 
al. 2011a, b; and Walker et al. 2007), only represented partial review 
of the available literature while omitting important factors and other 
studies, and utilized weak and/or flawed study parameters (See Ramey 
2013).
    Interestingly, the scientific validity of the 70 percent cover goal 
and 3 percent disturbance threshold were called into question by 
Department of the Interior [DOI] employees during the preparation of 
the NTT Report, yet the team chose to recommend the arbitrary 
thresholds anyway (italics used for emphasis):

        ``. . . Science says 30-50 percent in non-sagebrush cover is OK 
        (see quote below [underlined]), but the NTT Report says 3 
        percent in anthropogenic features is the NTT recommended 
        maximum . . . Am I missing something, is it worded poorly, or 
        is this a misapplication of professional judgment and science . 
        . . The report now makes this scientifically based assertion: 
        Within priority habitat, a minimum range of 50-70 percent of 
        the acreage in sagebrush cover is required for long-term sage-
        grouse persistence (Aldridge et al. 2008, Doherty et al. 2010, 
        Wisdom et al. 2011). That leaves an allowance of 30-50 percent 
        in non-sage-brush cover. So how was the 3 percent maximum cap 
        on surface anthropogenic features derived based on 
        ``professional judgment''? (See footnote) 3 percent is a long 
        way from 30-50 percent? . . .'' (Email correspondence from Jim 
        Perry to Raul Morales and Dwight Fielder, December 22, 2011. 
        Information was obtained from a FOIA response by Department of 
        the Interior, Bureau of Land Management, and Office of the 
        Solicitor to a request by Idaho Governor Otter's office, 
        hereafter FOIA Response).

    Mr. Perry goes on to state through email correspondence ``The NTT 
bullet points above (regarding 3 percent anthropogenic disturbance 
caps) need to be removed from the report as it conflicts with science'' 
(FOIA Response, December 22, 2011).
    The USGS Report further challenges the NTT Report's broad assertion 
that disturbance negatively impacts sage-grouse and sagebrush habitats 
in all instances, and instead acknowledges that:

        ``[t]hough the presence and distribution of suitable sagebrush 
        habitats is limited at landscape scales, precluding the need 
        for disturbances to intact sagebrush communities . . . 
        maintenance of healthy sagebrush communities includes some 
        localized disturbance in many regions'' (USGS Report at 79, 
        internal citation omitted).

    The NTT Report recommends several ``one-size-fits-all'' regulatory 
prescriptions (i.e. 4 mile buffers, 3 percent disturbance threshold, 
and Best Management Practices), and makes no allowance for 
recommendations to include local level sage-grouse conservation plans 
which are tailored to local conditions, including unique habitat and 
threats, and socio-economic conditions. Local conditions and local 
efforts are factors which should be considered when designing a 
conservation strategy to better ensure effectiveness. For example, 
requiring surface use restrictions in an area where fire and invasive 
species are the primary threats may not benefit sage-grouse as much as 
fire suppression and invasive species eradication mechanisms.
c. Failure To Incorporate or Recognize Current Regulatory and 
        Conservation Measures
    The lack of discussion related to current State and local level 
sage-grouse plans, and other conservation efforts that are protective 
in nature represents a departure from the notion that States are the 
experts in managing and regulating wildlife within their boundaries. An 
example of the NTT's failure to consider existing conservation and 
regulatory efforts is demonstrated by the omission of the State of 
Wyoming's EO 2008-2 in the NTT Report. The WBP determination recognized 
this EO for providing ``substantial regulatory protection for sage-
grouse in previously undeveloped areas on Wyoming State lands'' (75 
Fed. Reg. 13910 at 13974). These protections would also apply to energy 
development and permitting on all lands located within the State; 
however they were not mentioned anywhere in the NTT Report. One of the 
NTT's main conservation strategies is to prevent future energy 
development in priority habitat (NTT Report at 21). For this reason, 
the NTT's failure to consider current protections that are recognized 
in the WBP decision to ``ameliorate threats'' to sage-grouse (from new 
energy development) once fully implemented, is inappropriate.
    Significant literature exists regarding the importance of voluntary 
conservation measures by private citizens and industries, and other 
voluntary incentive based programs with respect to the recovery of ESA 
species, yet the NTT seems ardent in continuing ``command and control'' 
management, which has largely failed, as evidenced by the few species 
that have been de-listed (See, Ramey 2013; USGS Report).
    On the other hand, USFWS in its March 2013 report titled Greater 
Sage-grouse (Centrocercus urophasianus) Conservation Objectives: Final 
Report (hereafter COT Report) recommends that State conservation plans/
strategies be deferred to when they are effective, and that proactive 
measures be taken by Federal agencies to initiate voluntary incentive 
based programs (COT Report at 33-36).
    The NTT Report provides no discussion of current regulatory 
mechanisms available to BLM including the considerable provisions 
contained in Manual 6840: BLM's Special Status Species Management and 
the unnecessary and undue degradation provisions under Sec. 302(b) of 
FLPMA and associated regulations.
    The NTT Report fails to explain or analyze how existing 
conservation measures put in place pursuant to Manual 6840, FLPMA 
Sec. 302(b) are either adequate or inadequate to conserve sage-grouse, 
nor does it explain the need for an entirely new regulatory approach. 
If the inadequacies are a result of failure or uneven implementation of 
conservation measures, the NTT inappropriately discards an existing 
agency policy and on-the-ground efforts (assuming BLM followed its own 
policy) without ever justifying the changes advanced in the NTT Report. 
Further, if BLM failed to implement conservation efforts pursuant to 
Manual 6840 or other regulatory mechanisms, it could be considered 
``agency action unreasonably delayed,'' and BLM should be compelled to 
implement its own policy (WWP v. Salazar, ``the Court found that the 
Craters EIS violated NEPA and FLPMA by failing to adequately address . 
. . BLM's own Special Status Species Policy . . .'' at 2).
    In addition, the NTT Report's conservation measures are 
inappropriate because both the USFWS and USGS have published new data 
and recommendations, which post-date and in some cases conflict with 
the recommendations in the NTT Report.
d. Legal Issues
    The NTT Report is fraught with substantial legal and scientific 
flaws, which again, were recognized by DOI employees and discussed in 
internal emails questioning the legality of some of the conservation 
measures recommended in the NTT Report:

        ``. . . But, does the NTT really want to recommend something 
        that is blatantly illegal?'' (FOIA Response, email 
        correspondence from Dwight Fielder, December 21, 2011)

    Peer Review of the NTT Report also recognized misrepresentation of 
sources:

        ``This seems a strange blend of policy loosely backed by 
        citations, with no analysis of the science.'' (NTT Peer Review 
        Comments at 2)

    Regrettably, DOI decisionmakers did not heed warnings like this 
from DOI staff and peer reviewers and proceeded with publishing the NTT 
Report knowing that there were significant internal concerns about the 
report.
    The NTT Report creates policies that assume that sage-grouse 
conservation is the highest and best use of the land (See NTT Report at 
6-7), while subordinating other interests, without adequate analysis of 
the economic impacts these policies will have on communities, small 
businesses, and industry, and ultimately creates a species-centric 
policy on BLM lands, which is contrary to the multiple use and 
sustained yield provisions under FLPMA (43 U.S.C. Sec. 1712(c)). DOI 
employees who were involved with developing the NTT Report recognized 
some of these flaws in internal emails between them:

        ``. . . Overall, the NTT Report conservation measures (planning 
        prescriptions) are complete game-changers for any actions 
        within the Priority Habitats where there are valid existing 
        rights and showstoppers for those actions where there are no 
        valid existing rights . . .'' (FOIA Response, email 
        correspondence from Jim Perry, December 20, 2011).
            1. FLPMA
    In enacting FLPMA in 1976, Congress directed the Secretary of the 
Interior to consider a broad range of resource issues, land 
characteristics, and public needs and values in determining how public 
lands should be managed. FLPMA directs BLM to manage public lands for 
multiple uses and to consider a wide range of resource values including 
the need to protect wildlife and quality of the environment. Section 
102(a)(8) requires BLM to manage the public lands in a ``manner that 
will protect the quality of scientific, scenic, historical, ecological, 
environmental . . . values'' (U.S.C. 1701(a)(8), emphasis added), while 
section 102(a)(7) establishes multiple use and sustained yield land 
management directives and requires the Secretary to develop'' . . . 
goals and objectives (that are) established by law as guidelines for 
public land use planning, and that management be on the basis of 
multiple use and sustained yield unless otherwise specified by law'' 
(U.S.C. 1701(a)(7)). In defining the term ``multiple use'' FLPMA 
section 103(c) directs the Secretary to ensure:

        ``. . . the management of the public lands and their various 
        resource values so that they are utilized in the combination 
        that will best meet the present and future needs of the 
        American people; making the most judicious use of the land for 
        some or all of these resources . . . to conform to changing 
        needs and conditions; the use of some land for less than all of 
        the resources; a combination of balanced and diverse resource 
        uses that takes into account the long-term needs of future 
        generations for renewable and nonrenewable resources, 
        including, but not limited to, recreation, range, timber, 
        minerals, watershed, wildlife and fish, and natural scenic, 
        scientific and historical values.'' (43 U.S.C. Sec. 1702(c)).

    Therefore, under the multiple use and sustained yield requirements, 
BLM must strike an appropriate balance between potentially competing 
interests while considering the needs for all species, and land 
management objectives. This balance is to be achieved in the section 
102 land use planning process and the resulting RMPs. FLPMA does not 
authorize the subordination of any of these uses in preference for a 
single land use such as sage-grouse habitat conservation. Thus applying 
an emphasis on one resource, sage-grouse, across 47 million acres of 
sage-grouse habitat is not consistent with FLPMA; BLM must consider how 
the sage-grouse centric management contained in the NTT Report is 
appropriate in the context of other special status species, especially 
the habitat prescriptions and, fire and invasive species management.
    IM 2012-044, the implementing mechanism for the NTT Report, asserts 
that:

        ``When considering the conservation measures in (the NTT 
        Report) 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'' (emphasis added).

    The ``one-size fits-all'' habitat prescriptions is not consistent 
with FLPMA's specific directive pertaining to protecting quality of 
environmental and ecological values described above because it assumes 
what is good for northeastern Montana is good for western Nevada, 
despite their ecological differences.
            1. NEPA
    The principle of informed decisionmaking is the primary purpose of 
NEPA, and is intended to be used as a tool during the planning and 
decisionmaking process. As such, an EIS should not be used to justify 
decisions that have already been made and ``[a]gencies shall not commit 
resources prejudicing selection of alternatives before making a final 
decision'' (40 CFR Sec. Sec. 1502.2(f), emphasis added). Nevertheless, 
BLM has already decided to incorporate the NTT conservation measures 
into 79 of its RMPs prior to issuance of the Final EIS documents (See 
WWP v. Salazar, Roberson Decl.). BLM's failure to include consideration 
and detailed analysis of conservation measures other than those in the 
NTT Report represents a pre-determined decision by BLM to implement the 
NTT conservation measures without giving proper and detailed analysis 
to alternative conservation measures or policy including the specific 
directives contained in Manual 6840, which seems odd in light of the 
decision made in WWP v. Salazar where the Court found that BLM violated 
NEPA and FLPMA by disregarding existing BLM policy.
                             iv. conclusion
    The technical and policy flaws contained in the NTT Report are 
considerable and must be addressed before it is fully implemented as 
the ``one-size-fits-all'' approach will produce misguided land 
management policies that will not benefit sage-grouse range-wide. Such 
policies will not provide the best approach to sage-grouse habitat 
conservation and enhancement because sage-grouse conservation measures 
must be custom-tailored to reflect site-specific conditions. In some 
situations--especially in the case of the invasive species, fuel and 
fire-management, the NTT Report does not adequately address the primary 
threat to sage-grouse habitat in the western part of the range (e.g., 
the invasive species--wildfire cycle), which is currently an under-
managed problem on public lands. The failure to address this problem in 
the NTT Report could result in ecologically devastating consequences, 
while broad application could conflict with FLPMA and other laws.

Attachments

    NTT Peer Review Comments.
    Maxwell, M. BLM's NTT Report: Is It the Best Available Science or a 
Tool to Support a Pre-Determined Outcome?, Northwest Mining Association 
(2013).
    BLM Planning Units and Sage-Grouse Occurrence Map.

Works Cited

    42 U.S.C. Sec. 4321 et. seq. National Environmental Policy Act.
    43 U.S.C. 1712(c) Federal Land Management Policy Act
    75 FR 13910. 2010. Endangered and Threatened Wildlife and Plants: 
12-month Finding for Petitions to List the Greater Sage-Grouse as 
Threatened or Endangered.
    Connelly, J. W., Schroeder, M., Sands, A., & Braun, C. (2000). 
Guidelines to Manage Sage-grouse Populations and Their Habitats. 
Wildlife Society Bulletin 28:967-985.
    Hagen, C., Connelly, J., & Schroeder, M. (2007). A Meta-Analysis 
for Greater Sage-Grouse Nesting and Brood Rearing Habitats. Wildlife 
Biology 13 (Supplement 1), 42-50.
    Manier, D.J., Wood, D.J.A., Bowen, Z.H., Donovan, R.M., Holloran, 
M.J., Juliusson, L.M., Mayne, K.S., Oyler-McCance, S.J., Quamen, F.R., 
Saher, D.J., and Titolo, A.J., 2013, Summary of science, activities, 
programs, and policies that influence the rangewide conservation of 
Greater Sage-Grouse (Centrocercus urophasianus): U.S. Geological Survey 
Open-File Report 2013-1098, 170 p., http://pubs.usgs.gov/of/2013/1098/.
    Maxwell, M. BLM's NTT Report: Is It the Best Available Science or a 
Tool to Support a Pre-Determined Outcome?, Northwest Mining Association 
(2013).
    Ramey II, R. R. Review of Data Quality Issues in A Report on 
National Greater Sage-Grouse Conservation Measures Produced by the BLM 
Sage-Grouse National Technical Team (NTT), Dated December 21, 2011, 
Unpublished Report, September 2013.
    U.S. Department of the Interior. A Report on National Greater Sage-
Grouse. Sage-Grouse National Technical Team. December 2011.
    U.S. Department of the Interior, Instruction Memorandum 2012-044 
``BLM National Greater Sage-Grouse Land Use Planning Strategy.'' 
December 27, 2011; Available at: http://www.blm.gov/wo/st/en/info/
regulations/Instruction_Memos_
and_Bulletins/national_instruction/2012/IM_2012-044.html.
    U.S. Fish and Wildlife Service, ``Endangered Species Act Workplan 
Fiscal Year 2013 to Fiscal Year 2018--MDL Packages and Other Court 
Settlement Agreements,'' 12; available at http://www.fws.gov/
endangered/improving_ESA/FY13-18_ESA_Listing_workplan.pdf.
    U.S. Fish and Wildlife Service, Greater Sage-grouse (Centrocercus 
urophasianus) Conservation Objectives: Final Report. U.S. Fish and 
Wildlife Service, Denver, CO. February 2013; available at http://
www.fws.gov/mountain-prairie/species/birds/sagegrouse/COT/COT-Report-
with-Dear-Interested-Reader-Letter.pdf.
                                 ______
                                 

BLM's NTT Report: Is It the Best Available Science or a Tool to Support 
                       a Pre-determined Outcome?

                               __________
                            (Megan Maxwell)
                               5/20/2013

THIS DOCUMENT WAS PREPARED FOR USE BY THE NORTHWEST MINING ASSOCIATION. 
                    NOTHING IN THIS REPORT SHOULD BE CONSTRUED AS LEGAL 
                    ADVICE.

QUESTIONS OR COMMENTS REGARDING THIS DOCUMENT SHOULD BE DIRECTED TO: 
                    MEGAN MAXWELL



                           Table of Contents

Executive Summary................................................    45

Introduction.....................................................    46

A. Peer Review Comments..........................................    46

    1. Habitat Requirements/Threshold Values.....................    47

    2. Scale.....................................................    47

        a. Inadequacies of the Science...........................    48

    3. Failure to Incorporate or Recognize Current Regulatory and 
      Conservation Measures......................................    50

        a. Existing Regulatory Measures..........................    50

            1) BLM Manual 6840...................................    50

            2) 2004 National Sage-Grouse Habitat Conservation 
              Strategy...........................................    52

        b. PECE Considerations...................................    52

            1) Arbitrary and Capricious Standard of Review.......    54

        c. NEPA Considerations...................................    54

B. Technical Errors..............................................    55

    1. Source Mischaracterization................................    55

C. Conclusions and Recommendations...............................    56

Works Cited

Appendix A: NTT Peer Review Comments

Appendix B: Manual 6840

Appendix C: 2004 Guidance

Appendix D: Author

                                 ______
                           executive summary
    On March 23, 2010 the United States Fish and Wildlife Service 
[USFWS] issued a Warranted But Precluded (WPB) determination for the 
Greater sage-grouse, and gave the bird a Listing Priority Number [LPN] 
of 8, where 1 represents species with the most dire need for listing 
and 12 representing species with substantially less priority. Loss of 
habitat and fragmentation due to wildfire, energy development, 
urbanization, agriculture, and infrastructure development were cited as 
the primary threats to the species (75 Fed. Reg. 13910). The annual 
Candidate Notice of Review, allows the USFWS to change the LPN of 
candidate species in response to varying circumstances. The 2012 
Candidate Notice of Review maintained a LPN of 8 for the Greater sage-
grouse (77 Fed. Reg. 69994, Nov. 21, 2012 @ 70015).
    The 2010 listing determination identifies the habitat management 
and species conservation measures in the Bureau of Land Management's 
[BLM's] 2008 Manual 6840: Special Status Species Management as 
potentially having adequate regulatory protections for the Greater 
sage-grouse:

        ``If an RMP contains specific direction regarding sage-grouse 
        habitat, conservation, or management, it represents a 
        regulatory mechanism that has potential to ensure that the 
        species and its habitats are protected . . . during 
        decisionmaking on BLM lands'' (75 Fed. Reg. 13910 at 13976, 
        emphasis added).

    Manual 6840 if implemented properly into Resource Management Plans 
[RMPs] and if the results of the conservation measures were adequately 
documented, would constitute an adequate regulatory mechanism, 
satisfying the provisions under the Endangered Species Act [ESA]. 
Further, RMPs that include conservation measures pursuant Manual 6840, 
and that provide for proper implementation and monitoring of the 
conservation measures, as well as adaptive management protocols to 
adjust for conservation measures that are not meeting the desired on-
the-ground effect, could and should be subject to the Policy for the 
Evaluation of Conservation Efforts [PECE]. However, USFWS apparently 
could not consider these measures during the listing process, including 
the WBP determination for the Greater sage-grouse, due to a lack of 
certainty of how the conservation efforts would be implemented into 
RMPs (See Generally, 75 Fed. Reg. 13910):

        ``. . . However, the information provided to us by BLM did not 
        specify what requirements, direction, measures, or guidance has 
        been included in the newly revised RMP's to address threats to 
        sage-grouse and sagebrush habitat. Therefore, we cannot assess 
        their value or rely on them as regulatory mechanisms for the 
        conservation of sage-grouse . . .'' (75 Fed. Reg. 13910 at 
        13976).

    In response to the WBP determination to list Greater sage-grouse as 
a candidate species, BLM published, A Report on National Greater Sage-
Grouse Conservation Measures [NTT] and started the National 
Environmental Policy Act process to amend numerous RMP's throughout 11 
Western States to evaluate the impacts associated with implementing the 
conservation measures recommended in the NTT. BLM maintains the NTT 
conservation measures are required to respond to the WBP determination 
and describes USFWS' finding in the WBP determination that BLM lacks 
adequate regulatory tools to conserve Greater sage-grouse. The NTT does 
not use Manual 6840 or ESA as a foundation upon which to build. In 
fact, it never even references Manual 6840 or the ESA, nor does it 
explain the need for an entirely new regulatory approach. As such, it 
inappropriately discards an existing agency policy without ever 
justifying the radical change advanced in the NTT, and is thus 
arbitrary and capricious.
    Prior to USFWS' determination that the Greater sage-grouse 
warranted listing as a candidate species, and prior to BLM's issuance 
in 2008 of Manual 6840, the BLM had issued a 2004 guidance document 
that specifically addressed the management of sagebrush habitats, and 
how to integrate conservation measures that would be consistent with 
its management mandate under the Federal Land Policy Management Act and 
the National Environmental Policy Act. A reasonable response to the WBP 
determination by BLM would have been to simply implement Manual 6840 
and the 2004 guidance, and then provide the USFWS with evidence of 
their implementation and effectiveness pursuant to PECE. Instead, BLM 
responded with the NTT. The NTT does not appear to be based on 
reasonable consideration of the regulatory tools BLM already has, like 
Manual 6840, multiple authorities to require project-specific wildlife 
protection and habitat enhancement measures, and private-on-the-ground 
conservation efforts.
    The NEPA process requires an agency to rigorously explore and 
objectively evaluate all reasonable alternatives so that decisionmakers 
and the public are fully informed and is intended to be used as a tool 
during the planning and decisionmaking process (40 CFR 
Sec. Sec. 1502.14(a), 1502.14(b), (d)). Substantial case law exists 
regarding the range of alternatives that need to be included in an 
Environmental Impact Statement [EIS], and ``[t]he existence of a viable 
but unexamined alternative renders an environmental impact statement 
inadequate (Resources Ltd. v. Robertson, 35 F.3d 1300, 1307 (9th Cir. 
1993)). To that end, failing to include full implementation of Manual 
6840 and the 2004 Guidance as an alternative in the Draft EIS documents 
is arbitrary and capricious, and the Draft EIS documents should not be 
published for public review until full analysis of this alternative is 
included. Further, an EIS should not be used to justify decisions that 
have already been made and ``[a]gencies shall not commit resources 
prejudicing selection of alternatives before making a final decision'' 
(40 CFR Sec. Sec. 1502.2(f), 1500.1(b)) (emphasis added). Nevertheless, 
BLM has already decided to incorporate the NTT conservation measures 
into 79 of its RMP's prior to issuance of the FEIS and is in direct 
violation of NEPA (Western Watershed Project v. Salazar, No. 4:08-CV-
516-BLW, U.S. District Court of Idaho, 2013, decl.).
    During the peer-review period for the NTT multiple peer reviewers 
criticized the applicability of the NTT due to misapplication of the 
science and omission of existing Federal and State regulatory programs 
that could be used to conserve sage-grouse and its habitat. As a result 
the NTT would not likely withstand scrutiny under PECE.
    Additional research shows inadequacies in the science itself. 
Limited analysis of the science used in creating the NTT, as well as 
the science used in the WBP determination has shown that there has 
been:

   Significant mischaracterization of past research;
   Methodological bias;
   Substantial errors and omissions;
   Lack of independent authorship and peer review; and
   Substantial technical errors.

    These issues call into question whether the ``Best Available 
Science'' was in fact used to establish the conservation measures in 
the NTT, and the validity of the NTT as a whole. To that end, flawed 
science will lead to flawed species-centric policy, like that in the 
NTT.
                              introduction
    On March 23, 2010 the U.S. Fish and Wildlife Service [USFWS] issued 
a Warranted but Precluded [WBP] determination for the Greater sage-
grouse (sage-grouse) after repeated and successful litigious activities 
regarding the status of the species. Loss of habitat and fragmentation 
due to wildfire, energy development, urbanization, agriculture, and 
infrastructure development were cited as the primary threats to the 
species (75 Fed. Reg. 13910 at 13924, 13927-28, 13931). The Bureau of 
Land Management [BLM] was identified as having a unique opportunity to 
conserve the sage-grouse through its resource management plans [RMP's] 
i.e. land use plans, because reportedly 51 percent of the sage-grouse 
habitat is under the BLM's jurisdiction (75 Fed. Reg. 13910 at 13975). 
In response to the potential listing, BLM chartered the Sage-Grouse 
National Technical Team who was charged with developing policy on how 
to manage sage-grouse conservation and protection under its 
jurisdiction, and against which all BLM activities would be measured. A 
Report on National Greater Sage-Grouse Conservation Measures [NTT] was 
subsequently published on December 21, 2011. Then on March 11, 2013 
BLM's Assistant Director Edwin Roberson entered a declaration in the 
U.S. District Court of Idaho (Western Watershed Project v. Salazar, No. 
4:08-CV-516-BLW, U.S. District Court of Idaho, 2013, decl.) indicating 
that the NTT conservation measures are being incorporated into 79 
RMP's, across 10 States affecting millions of acres of the public 
domain, and uses ranging from recreation, to grazing, to mineral and 
energy development.
    During the peer-review period for the NTT, multiple reviewers 
criticized the applicability of the NTT, especially with respect to 
habitat requirements/threshold values, scale, and failure to 
incorporate existing regulatory and conservation efforts into the NTT, 
including lack of consideration of the Policy for the Evaluation of 
Conservation Efforts [PECE]. Additional research shows inadequacies in 
the science used to support decisions made in the NTT, 
mischaracterization, and insufficient reference citations. These issues 
call into question, both whether the ``Best Available Science'' was in 
fact used, and the overall validity of the NTT.
                        a. peer review comments
    The peer reviewer comments and issues can be categorized into three 
main areas of concern: (1) habitat requirements/threshold values; (2) 
scale; and (3) failure to incorporate existing regulatory and 
conservation efforts into the NTT. The peer review comments may be 
reviewed in their entirety in Appendix A (attached herewith).
1. Habitat Requirements/Threshold Values
    The NTT authors attempted to resolve the peer reviewers' issue 
related to habitat and scale by adding ``Appendix A'' to the report 
which was intended to provide ``context'' for the conservation 
measures. ``Appendix A'' is an excerpt from the WBP determination 
describing the life history requirements of sage-grouse. The peer 
reviewers were particularly concerned about the threshold values 
present throughout the NTT, because they represent a one-size-fits-all 
approach. In terms of ecology, one-size-fits-all is not considered 
sound, because there are variable risks and limiting factors present 
across the range, which would warrant different conservation 
approaches. The information contained in ``Appendix A'' does not 
provide any information to support the threshold values contained in 
the NTT, and might even produce contrary results if applied across the 
range. For example, one peer reviewer notes that 20 percent sagebrush 
cover is not necessarily ``healthier'' than an area that has 10 percent 
sagebrush cover and good grass densities. Another peer reviewer states, 
``[i]n many areas site potential will be below 15 percent so this 
blanket statement seems a little irrelevant. Why not say the sagebrush 
will not be reduced below site potential . . .'' (NTT Peer Review 
Comments at 16).
    The primary objective of the NTT is ``to protect sage-grouse 
habitats from anthropogenic disturbances that will reduce distribution 
or abundance of sage-grouse'' (NTT at 7). To achieve the primary 
objective the NTT sets forth sub-objectives. Two of the four sub-
objectives assert that 70 percent of the range within priority habitat 
needs to provide ``adequate'' sagebrush habitat to meet sage-grouse 
needs, and that discrete anthropogenic disturbances in priority habitat 
be limited to less than 3 percent of the total sage-grouse habitat 
regardless of ownership (NTT at 7). These objectives are not supported 
by the literature.\1\ Two of the most frequently used sources with 
respect to vegetative habitat requirements, provide that ``adequate'' 
vegetative cover for sage-grouse, ranges from 15 percent to 25 percent 
sagebrush cover, >10 percent forbs, >10 percent grass canopy, and even 
smaller percentages depending on the season or ecological location 
(Connelly et. al. 2000, Hagen et. al. 2007). Absent from these studies 
is data to support the NTT's conclusion that 70 percent of the range 
within priority habitat must provide ``adequate'' habitat in order for 
sage-grouse to persist. Limiting disturbance to less than 3 percent \2\ 
of the total habitat is not scientifically supported, nor is it 
reasonable to assume this limit is even possible given the likely 
variances in ownership and jurisdiction across the total habitat, and 
it also creates issues in terms of PECE review, discussed below.
---------------------------------------------------------------------------
    \1\ The NTT uses three sources to support its 70 percent threshold. 
However, the NTT has mischaracterized the results of these studies. The 
misuse of these studies is discussed in detail, infra Section B.
    \2\ Based on the reviewer comments, it appears that this threshold 
value was originally set at 2.5 percent. However, the reviewer states 
that 2.5 percent is not supported by research, and that the only 
percentage value he knew of was 1 percent.
---------------------------------------------------------------------------
    The peer reviewers concerns related to the lack of discussion on 
limiting habitat does not appear to have been adequately addressed, and 
is a significant omission because it fails to provide a mechanism for 
prioritizing management efforts and assumes the same risks are 
representative across the entire range. The NTT and ``Appendix A'' fail 
to provide reason or support for consolidating all \3\ sage-grouse 
seasonal habitat range-wide, regardless of relative importance or 
quality to sage-grouse populations.
---------------------------------------------------------------------------
    \3\ Sage-grouse habitat varies seasonally. Habitat used in the 
winter has different vegetative requirements than breeding, nesting, or 
brood-rearing habitats, for example. Thus assuming that all habitats 
should be treated the same, with a one-size-fits-all approach is 
improper.
---------------------------------------------------------------------------
2. Scale
    The NTT appears to have added a short discussion on spatial and 
temporal scales in an attempt to address the peer reviewers' concerns, 
but again, it falls short. When choosing what scale to use in aiding 
management decisions, it is important to limit the size, as to reduce 
variables, which is why using a range-wide scale is inappropriate. 
However using too small a scale is also problematic because it can be 
too limiting, as in the case of the NTT, where the discussion focuses 
on measuring disturbance at the priority habitat scale and each 1-mile 
section within a priority area. Measurements taken at these scales 
ignore the concerns by the peer reviewers related to the applicability 
of range-wide conservation measures, and instead appears to provide 
some kind of justification for using specific, one-size-fits-all 
disturbance thresholds. All that said if a spatial scale were at a 
management zone level as opposed to a priority habitat level, it would 
still limit the ecological variables otherwise present range-wide, and 
could still provide managers with specific conservation measures that 
might be applicable at a broader management zone scale, while still 
allowing some use that might otherwise be restricted at a smaller 
scale.
    The issue of scale is repeatedly identified throughout the 
reviewers' comments, with particular concern for the broad application 
and one-size-fits-all approach toward conservation. This presents a 
major issue because the distribution of sage-grouse populations is 
vast, encompassing different ecological zones which have different 
risks to the sage-grouse and its habitat. For example, in the Great 
Basin invasive plants and altered fire regime have resulted in loss of 
habitat (75 Fed. Reg. 13190 at 13933). The conservation measures that 
are best suited to deal with these issues should not be assumed to be 
necessary where these risks do not exist, like in Wyoming where habitat 
fragmentation due to energy development is considered the greatest 
threat. As one reviewer states:

        ``If this document is to be effective in defining conservation 
        measures on a range-wide basis, it must take into account the 
        considerable large-scale variation in plant community ecology 
        present within the range of the sage-grouse. Otherwise we are 
        faced with species-centric generalizations of the effects of 
        ecological processes that may or may not represent the 
        ecological reality'' (NTT Peer Review Comments at 4).

    Again, the peer reviewers warn against the rigidness of the NTT's 
conservation measures and their applicability range-wide. The NTT has 
not addressed these concerns nor has it provided scientific authority 
supporting its decisions as noted by one reviewer:

        ``This seems a strange blend of policy loosely backed by 
        citations, with no analysis of the science'' (NTT Peer Review 
        Comments at 2, emphasis added).

    To that end, analysis of the science would show that conclusions 
were made on the basis of improper interpretation of the data, 
especially with respect to policy and management recommendation's, 
calling even more question to the validity of the NTT's policies.
            a. Inadequacies of the Science
    Research and analysis of the science used in creating the NTT as 
well as the science used in the WBP determination have shown that there 
has been significant mischaracterization of past research, 
methodological bias, substantial errors and omissions, and lack of 
independent authorship and peer review; leading to considerable flaws 
in the science (See Generally, Science or Advocacy? Ecology and 
Conservation of Greater Sage-Grouse: A Landscape Species and its 
Habitats: An Analysis of the four most influential chapters of the 
monograph Center for Environmental Science, Accuracy and Reliability, 
hereafter CESAR 2012).
    Understanding the problems with the WBP determination is important 
because it is one of the most frequently cited sources in the NTT, and 
analysis has shown that the science used in making the WBP 
determination is considerably flawed. The CESAR report reviewed and 
analyzed four of the most frequently cited sources used by USFWS in its 
WBP determination. Each source is a chapter derived from the Cooper 
Ornithological Society's Monograph: Studies in Avian Biology 
(monograph). The CESAR report indicates that this monograph was 
specifically developed to aid the USFWS in its WBP determination for 
the sage-grouse, raising the question whether the monograph was written 
to push a specific agenda: listing the sage-grouse as threatened or 
endangered. The CESAR report makes several alarming conclusions that 
the WBP listing determination is based on:

   Significant mischaracterization of previous research;
   Substantial errors and omissions;
   Lack of independent authorship and peer review;
   Methodological bias;
   A lack of reproducibility;
   Invalid assumptions and analysis; and
   Inadequate data.

    Like the WBP determination, the NTT relied heavily on the monograph 
to support its choices. In fact, the NTT uses 16 of the monograph's 
chapters, 3 of which the CESAR report included in its analyses.\4\ 
Specifically, the Knick et. al. chapter titled, Ecological Influence 
and Pathways of Land Use in Sagebrush, was frequently cited in the NTT. 
The CESAR report found that in this chapter, omission of limiting 
factors, mischaracterization of previous research, and lack of 
reproducibility was present and states ``Knick et al. do not accurately 
represent the results of cited authors but rather substitute their own 
values to delineate the effect area for each type of human activity.'' 
CESAR concludes its analysis on this chapter with, ``this study also 
fails the litmus test of sound scientific research since the results 
are not repeatable and verifiable.''
---------------------------------------------------------------------------
    \4\ While the CESAR report did not analyze all the chapters of the 
monograph, the same conclusions are expected to be present throughout 
the monograph, primarily due to methodological bias and lack of 
authorship and peer review which undermines the process significantly. 
The publication dates of the monograph differ between the CESAR report 
and the NTT due to draft publication and final publication. Reportedly, 
only minor changes were made between the draft and final monograph, no 
substantive content was changed. Therefore the CESAR conclusions remain 
accurate.
---------------------------------------------------------------------------
    Other examples of the deficiencies noted in CESAR that are 
replicated in the NTT and associated studies are the lack of 
independent authorship, methodological issues, and misleading use of 
citations. For example, three of the authors of the NTT are also the 
authors, researchers, and editors on three of the most cited sources in 
the NTT. This reliance on a select and limited group of authors is 
highly questionable because it does not allow for objectivity or 
multiple scientific observations and conclusions, a critical component 
of the scientific analysis and peer-review process.
    The policy conclusions drawn from the research are also 
questionable due to methodological flaws in the research of sage-
grouse. For example, a study where analysis evaluates relative 
importance of breeding areas to one another conducted on high density 
populations, cannot yield reliable conclusions on low density 
populations, which one study \5\ used by the NTT attempts to do. This 
is also true when small sample populations are used to draw conclusions 
to be applied range-wide.
---------------------------------------------------------------------------
    \5\ See Kevin Doherty et. al., Energy Development and Conservation 
Tradeoffs: Systematic Planning for Greater Sage-Grouse in Their Eastern 
Range. Pages 505-516 in S.T. Knick and J.W. Connelly (editors). Greater 
Sage-Grouse: ecology and conservation landscape species and its 
habitats. Studies in Avian Biology (Vol. 38), University of California 
Press, Berkeley, Ca (2011).
---------------------------------------------------------------------------
    Other frequent omissions in the research of sage-grouse fail to 
incorporate limiting factors into the analyses. The significance of 
limiting factors is important because scientifically drawn conclusions 
that would support a particular policy choice cannot be confidently 
made without recognition of what might be producing an observed result. 
Identifying limiting factors is typically one of the first steps in 
identifying a problem, but if those are not recognized then there can 
be little confidence that the proposed ``answer,'' in this case 
conservation measure, will be successful. For example, a study which 
seeks to provide information on survival rates of nestlings must 
consider outside influences that might affect survival rates such as 
drought, natural predation, and temperature; all are limiting factors 
that may exacerbate or yield results that would show a low survival 
rate. If these limiting factors are not considered, then a conclusion 
showing that low survival rate is influenced by energy development, 
would not be sufficiently reliable \6\ on which to base a policy 
choice.
---------------------------------------------------------------------------
    \6\ The NTT attempts to provide justification for the science used 
in the report by providing Appendix B: Scientific Inference. While 
inference is commonly made in scientific research the methodology used 
in the study must be sound.
---------------------------------------------------------------------------
    The NTT also omits discussion on the importance of understory to 
sagebrush ecosystems and sage-grouse, with a focus on sagebrush canopy. 
This is a significant omission that must be addressed in order for the 
conservation measures to be scientifically sound. As the NTT stands 
now, omitting discussion of understory health will result in unintended 
consequences. As some reviewers note:

        ``. . . Remember, good long lived perennial grass densities are 
        the best way to suppress cheatgrass fuel loads that is critical 
        in protecting sagebrush habitats. The 20 percent big sagebrush 
        cover may very well be suppressing the much needed long-lived 
        perennial grasses . . .'' (NTT Peer Review Comments at 10).

        ``. . . If the result of no grazing is increased risk of fire, 
        then it might be worth reconsidering.'' \7\  (NTT Peer Review 
        Comments at 14).
---------------------------------------------------------------------------
    \7\ The reviewer in this instance was commenting on retiring 
grazing privileges. However responsible grazing practices can improve 
understory health and reduce fire.

        ``Are you going to sit back and have catastrophic wildfires 
        dictate your outcome? . . . Are winter ranges a constant 
        vegetation type? No, so why would you state such an objective? 
        . . . This type of passive management is helping further 
        degrade critical habitats . . .'' \8\ (NTT Peer Review Comments 
        at 17).
---------------------------------------------------------------------------
    \8\ The reviewer was commenting on the conservation measure that 
provides, ``no treatments will be allowed in known winter range.''

        ``. . . The removal of livestock will most likely result in 
        bunchgrass/fuel loads in the mountain brush habitat. These fuel 
        loads will probably result in increased wildfires in these 
        habitats and will burn critical sagebrush communities'' \9\ 
        (NTT Peer Review Comments at 12).
---------------------------------------------------------------------------
    \9\ The reviewer was commenting on the conservation measure that 
would retire grazing privileges. However responsible grazing practices 
can improve understory health and reduce fire.

        ``. . . This may be fine for high elevation sites, but I 
        strongly disagree for low elevation sites, where annual grasses 
        are the biggest threat to ecological integrity ...'' \10\ (NTT 
        Peer Review Comments at 4).
---------------------------------------------------------------------------
    \10\ The reviewer was commenting on the provision under Emergency 
Stabilization and Rehabilitation section of the NTT where it states, 
``Re-establishment of sagebrush over-stories shall be the highest 
priority for rehabilitation . . .''

    In addition to the reviewers concerns related to the potential for 
increased fire resulting from inadequate management of understory 
vegetation, there is substantial scientific authority showing the 
importance of understory to sage-grouse. In fact, grass height and 
cover are important for adequate nesting habitat, and early brood-
rearing habitats are best when they are abundant in forbs and insects 
for foraging, with a 14 percent sagebrush canopy cover (Connelly et. 
al. 2000). However, the NTT implies that restoring sagebrush canopy to 
15-25 percent is appropriate in all habitats, all the time (See 
Generally NTT), which is simply not true.
    The CESAR findings, questionable methodologies used in other 
studies cited in the NTT, and inappropriate application of the science 
raise significant questions as to the validity of policy decisions in 
the NTT. Without sound science and sound application of the science, 
the NTT report is effectively a species-centric advocacy document.
3. Failure to Incorporate or Recognize Current Regulatory and 
        Conservation Measures
    The peer reviewers recognized the lack of discussion related to 
current State level sage-grouse plans, and other regulatory mechanisms 
that are protective in nature, as well as the complete disregard of 
Federal Land Policy Management Act [FLPMA] and PECE considerations. The 
NTT report failed to address these concerns in any way except to say 
that management actions taken by the BLM would be in concert with other 
agencies, State and local governments, and private owner actions (NTT 
at 4).
            a. Existing Regulatory Measures
    An example of BLM's failure to consider existing conservation and 
regulatory efforts is demonstrated by the NTT's omission of the State 
of Wyoming's EO 
2008-2. The WBP determination recognized this EO for providing 
``substantial regulatory protection for sage-grouse in previously 
undeveloped areas on Wyoming State lands;'' (75 Fed. Reg. 13910 at 
13974) these protections would also apply to energy development and 
permitting on all lands located within the State; however it was not 
mentioned anywhere in the NTT. One of the NTT's main conservation 
strategies is to prevent future energy development in priority habitat 
(NTT at 21). For this reason, the NTT's failure to consider current 
protections that are recognized in the WBP decision to ``ameliorate 
threats'' to sage-grouse (from new energy development) once fully 
implemented, is inappropriate.
    The NTT states that ``management priorities will need to be shifted 
and balanced to maximize benefits to sage-grouse habitats and 
populations in priority habitats'' (NTT at 6-7, emphasis added). 
Throughout the NTT there are instances like this where there is an 
assumption that the protection of sage-grouse is the highest and best 
use of the land and ultimately creates a species-centric policy on BLM 
lands, which is contrary to the multiple use and sustained yield 
provisions, and criteria that must be considered when developing land 
use plans provided for under FLPMA (43 U.S.C. Sec. Sec. 1712(c)).
    One reviewer calls attention to the USDA-NRCS National Conservation 
Practices Guide (used for grazing practices) that could be used with a 
focus on sage-grouse habitat, or address grazing threats to sage-grouse 
habitat through allotment management plans, instead of reinventing the 
wheel for grazing practices through the NTT. But perhaps more 
importantly, is the lack of discussion related to BLM's Manual 6840 
(Manual).
            1) BLM Manual 6840
    Manual 6840 was revised and re-issued in December 2008. The purpose 
of the Manual is to establish policy for the management of species 
listed or proposed for listing under the Endangered Species Act [ESA] 
and for ``sensitive species'' on BLM lands. It contains guidance on how 
to designate and ensure for the conservation of ``sensitive species'' 
(i.e.; ``special status species,'' like sage-grouse). One of the 
objectives in the Manual is to ``initiate proactive conservation 
measures that reduce or eliminate threats to Bureau sensitive species 
to minimize the likelihood of and need for listing of these species 
under the ESA'' (Manual 6840 at .01). In order to meet this objective 
the Manual seeks to:

        Ensure ``that when the BLM engages in the planning process, 
        land use plans and subsequent implementation-level plans 
        identify appropriate outcomes, strategies, restoration 
        opportunities, use restrictions, and management actions 
        necessary to conserve and/or recover listed species, as well as 
        provisions for the conservation of Bureau sensitive species. In 
        particular, such plans should address any approved recovery 
        plans and conservation agreements.'' (Manual 6840 at .04D2, 
        emphasis added)

    As such, conservation of the sage-grouse must be addressed in the 
development and implementation of Resource Management Plans [RMPs], the 
mechanism USFWS indicated was a good tool for conserving sage-grouse. 
In fact, USFWS states:

        ``. . . BLM Manual 6840 further requires that RMPs . . . should 
        consider all site-specific methods and procedures needed to 
        bring species and their habitats to the condition under which 
        management under the Bureau sensitive species policies would no 
        longer be necessary (quoting Manual 6840, citation omitted). As 
        a designated sensitive species under BLM Manual 6840, sage-
        grouse conservation must be addressed in the development and 
        implementation of RMPs on BLM lands . . . if an RMP contains 
        specific direction regarding sage-grouse habitat, conservation, 
        or management, it represents a regulatory mechanism that has 
        potential to ensure that the species and its habitats are 
        protected . . . during decisionmaking on BLM lands . . . 
        However, the information provided to us by BLM did not specify 
        what requirements, direction, measures, or guidance has been 
        included in the newly revised RMPs to address threats to sage-
        grouse and sagebrush habitat. Therefore, we cannot assess their 
        value or rely on them as regulatory mechanisms for the 
        conservation of sage-grouse . . . Although RMPs, AMPs, and the 
        permit renewal process provide an adequate regulatory 
        framework, whether or not these regulatory mechanisms are being 
        implemented in a manner that conserves sage-grouse is unclear'' 
        (75 Fed. Reg. 13910 at 13975-77, emphasis added).

    What this means is that USFWS was not looking for new regulatory 
mechanisms. What they needed was evidence the current regulatory 
mechanisms would be implemented and documentation of the effectiveness 
of those mechanisms. In other words, all BLM needs to do is monitor and 
implement its own policy with regards to ``special status species'' 
under the Manual and provide data to USFWS in a useable format so that 
they can show reliable, quantifiable trends relating to the 
effectiveness of the Manual's provisions in RMPs to the USFWS.
    The Manual's provisions are designed to be in compliance with the 
requirements for agencies pursuant the ESA. The ESA is the single-most 
protective Federal legislation for threatened and endangered species; 
the Manual uses the requirements of the ESA as a starting point from 
upon which to build, in order to adequately protect at risk or listed 
species. The ``special status species'' provisions in the Manual (which 
are distinct from the provisions for threatened and endangered species 
under the Manual) are consistent with those required for listed species 
under the ESA. As such, the Manual requires the same level of 
protection for candidate species as it does for species listed as 
threatened or endangered.\11\
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    \11\ The main difference between the protections awarded actual 
listed species under the ESA, and candidate/special status species 
under the Manual is procedural. The ESA requires agency consultation 
with the USWS or NOAA (Services) when an agency action may affect a 
listed species. After a consultation is conducted, the Services will 
then issue biological opinion, which may or may not place further 
restrictions on the given agency. The Manual does not require 
consultation with the Services for candidate species.
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    The Manual requires monitoring of ``special status species'' in 
order to determine whether management objectives are being met and 
evaluate whether or not the conservation strategies implemented are 
effective (Manual 6840 at .2A1). If this provision of the Manual had 
been or would be implemented, it would provide the quantifiable 
information required by the USFWS. Additionally, if the monitoring data 
revealed that the conservation measures were not having the desired 
effect, BLM could have made appropriate adjustments to the conservation 
measures pursuant to the Manual.
    The Manual also provides for the protection of all ESA listed, 
candidate, proposed species, and their habitat for a period of 5 years 
following delisting, which is consistent with provisions under the ESA 
for species listed as threatened or endangered (Manual 6840 at .2), but 
not for candidate species. Thus, this provision in Manual 6840 provides 
more protection for candidate species than the ESA.
    The WBP determination was issued in March 2010, less than a year 
and a half after the Manual was revised in 2008. At 75 FR 13910, the 
USFWS recognized that sage-grouse conservation must be addressed in 
RMPs under the Manual, and RMPs that address sage-grouse conservation 
consistent with Manual 6840 would provide an adequate regulatory 
mechanism (See Generally at 13975-77). Accordingly, the Manual already 
provides the necessary protective measures for the sage-grouse, as 
recognized by the USFWS, and simply needs to be implemented, followed 
by appropriate monitoring to document the effectiveness of the 
conservation measures in the Manual.
    The Manual goes beyond what the ESA requires for candidate species, 
like the sage-grouse, and is a significant formalized conservation 
effort, if it is implemented properly. Curiously the NTT completely 
fails to include any discussion of the Manual or even recognize its 
existence (it is not included in the Literature Cited section of the 
NTT). The failure of the NTT to use or amend the Manual is particularly 
perplexing since the Manual is designed to be as protective, if not 
more, protective as the ESA. Instead, the BLM mischaracterized what the 
USFWS stated in its WBP determination and set aside adequate existing 
regulatory and conservation mechanisms pursuant the Manual in favor of 
the NTT, without providing a reasonable explanation for doing so, and 
may in fact be arbitrary and capricious. The Manual can be reviewed in 
its entirety in Appendix B.
            2) 2004 National Sage-Grouse Habitat Conservation Strategy
    In addition to the Manual, in November 2004 the BLM issued The 
National Sage-Grouse Habitat Conservation Strategy: Guidance for 
Addressing Sagebrush Habitat Conservation in BLM Land Use Plans 
(Guidance). Pursuant to the Guidance, each State Director was to 
``develop a process and schedule to update deficient land use plans to 
adequately address sage-grouse and sagebrush conservation needs,'' by 
April 2005 (Guidance at 2). The Guidance provides land managers with 
the steps to incorporate ``sagebrush considerations'' into the 
preparation of land use plans and National Environmental Policy Act 
[NEPA] analysis. Section 4 of the Guidance explicitly states ``that 
each alternative [in the NEPA analyses] contain[s] considerations for 
sagebrush habitat conservation by (1) developing one or more goals 
related to sagebrush habitat with emphasis on sage-grouse habitat that 
will apply to all alternatives . . .'' (Guidance at 5, emphasis added). 
The Guidance also provides for the development of goals and objectives 
intended for the protection/maintenance, restoration and rehabilitation 
of sagebrush habitat. The Guidance also suggests that when developing 
considerations, i.e. conservation measures, that the PECE is taken into 
account, which would ensure that the conservation efforts stipulated in 
the land use plan's would be adequately considered during the USFWS 
ESA-listing process. The Guidance may be reviewed in its entirety in 
Appendix C.
    The Guidance is not referenced in the WBP determination, and it is 
unclear whether the Guidance was even implemented. What is clear is 
that the ``deficient'' land use plans were to be revised by April 2005 
(Guidance at 2) and were to incorporate the provisions of the Guidance 
document and Manual 6840.\12\ If this were implemented as intended, 
then it is difficult to conceive a reasonable manager would not inform 
USFWS of its existence during the listing evaluation process for the 
sage-grouse or in conjunction with the data provided to USFWS for 
listing decisions. However, this does not appear to have occurred, 
given the lack of reference in the WBP determination. Moreover, if this 
did not occur, it might be considered agency action that was 
``unreasonably delayed'' and the BLM should be compelled to use the 
policy and regulatory tools they already have available to them, as 
opposed to using scientifically questionable conservation measures like 
those in the NTT.
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    \12\ Manual 6840 was revised in 2008; however there was an earlier 
version in existence in 2004-05.
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            b. PECE Considerations
    The PECE is a policy designed to provide guidance to the USFWS and 
National Oceanic and Atmospheric Administration Fisheries (Services) 
when making listing decisions under the ESA. Section 4(b)(1)(A) of the 
ESA requires the Service to: (1) consider various threats affecting a 
species; and (2) consider any formalized conservation efforts, even 
those efforts that are not specific to a species but are still 
beneficial to the species, when making listing decisions. The intent of 
the PECE policy is to provide consistency in the methods used to 
evaluate whether formalized conservation efforts identified in a 
conservation agreement, conservation plan, management plan, or similar 
document that have not yet been implemented, or have yet to show 
effectiveness, can be considered in making a listing determination. It 
can also be used to provide guidance to other Federal agencies, States 
and local governments, tribal governments and, private entities in 
developing conservation plans and/or agreements for the protection of 
an at risk species prior to ESA-listing (68 Fed. Reg. 15100, Mar.28, 
2003).
    Under the PECE, the criteria used to determine whether formalized 
conservation efforts that have yet to be implemented or to show 
effectiveness contribute to making listing a species as threatened or 
endangered unnecessary, the Services must find that there is: (1) 
certainty that the conservation efforts will be implemented; and (2) 
certainty that the efforts will be effective. In addition to the two 
main criteria, the policy provides specific factors used to review a 
specific conservation effort. In evaluating whether a specific effort 
will be implemented the underlying factors considered include whether 
there is sufficient funding or other resources available to carry out 
the effort, and do the parties have the authority to implement it.\13\ 
In evaluating whether a specific conservation effort will be effective, 
the factors considered include whether there is a schedule for 
completing the effort, does the effort establish specific conservation 
objectives, and are there performance measures established to monitor 
success (68 Fed. Reg. 15101).\14\
---------------------------------------------------------------------------
    \13\ Other underlying factors are also considered during the PECE 
review process for whether or not a conservation effort will be 
implemented; however only a few are discussed in this paper.
    \14\ Other underlying factors are also considered during the PECE 
review process for whether or not a conservation effort is likely to be 
effective; however only a few are discussed in this paper.
---------------------------------------------------------------------------
    The main tenet of PECE is the certainty that a conservation measure 
will be implemented and effective. The NTT peer reviewers expressed 
concern that many of the stipulations in the NTT will not in fact 
withstand this level of scrutiny. One reviewer states, ``. . . [this] 
seems like very weak guidance that is a long way from any instruction 
that would lead to these actions'' (NTT Peer Review Comments at 7).\15\ 
Another reviewer questions the use of plant measurements to quantify 
rangeland health due to the high level of error involved in the 
methodology, which goes back to the reviewers concern relating to scale 
and threshold values. Yet another reviewer comments on the proposed 
land exchange measures and questions ``how achievable'' it would 
actually be given the reality of local mentalities toward property and 
mineral rights. One reviewer states:
---------------------------------------------------------------------------
    \15\ The reviewer was commenting on the stipulation regarding the 
removal, burial, or modification of existing power lines.

        ``All activity plans should address PECE considerations . . . 
        Given the budget situation for the foreseeable future, plan 
        projections of a rosy success are often nothing more than happy 
---------------------------------------------------------------------------
        bullroar . . .'' (NTT Peer Review Comments at 3).

    Consideration of budget is particularly important to Federal 
agencies since it is difficult to guarantee the funds to implement the 
conservation measures will be approved for the long-term. BLM has made 
unrealistic assumptions that the conservation measures articulated in 
the NTT will be fully funded by Congress for the foreseeable future, 
and disregards the reality of obtaining the necessary funds to 
implement the NTT conservation measures. If the conservation measures 
in the NTT are not effective because they were applied improperly due 
to disregard of scale, or they fail to ensure for adequate funding, 
especially with respect to land exchanges and fire management, then it 
is likely that the NTT's conservation measures will not survive PECE 
analysis during the 12-month listing process for the sage-grouse 
beginning in September 2014
    Conversely, the provisions of the Manual are designed to be in 
compliance with the ESA, and to conserve species so that listing under 
the ESA is no longer necessary. As such, RMPs that include the 
conservation measures pursuant the Manual and the 2004 Guidance which 
provide for: (1) the proper design and implementation of the 
conservation measures; (2) effective monitoring to determine whether 
the conservation measures are having the desired on-the-ground effect; 
and (3) require adaptive management to adjust the conservation measures 
in response to the monitoring data could have and should be subject to 
PECE. A reasonable response by BLM to the WBP determination would have 
been to simply implement Manual 6840 and the 2004 Guidance and then 
provide USFWS with monitoring data in a useable format to show 
effectiveness. Instead BLM's response with the NTT appears to be 
completely absent of rationale between the facts found in the WBP 
determination and the choice made to commission the NTT, and instead 
creates an entirely new regulatory tool, which raises the question of 
whether the BLM acted arbitrarily and capriciously.
            1) Arbitrary and Capricious Standard of Review
    Under the Administrative Procedure Act (5 U.S.C. Sec. 706(2)(A)) 
\16\ the court is authorized to ``set aside agency action . . . found 
to be . . . arbitrary, capricious, an abuse of discretion, or otherwise 
not in accordance with law.'' Under this standard of review ``the 
agency . . . must articulate a satisfactory explanation for its action 
including a rational connection between the facts found and the choice 
made'' (Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 
463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983)).\17\ In 
reviewing the agency explanation, the court must ``consider whether the 
decision was based on a consideration of the relevant factors and 
whether there has been a clear error of judgment.''(Id.).\18\ BLM's 
response to the WBP determination with the NTT appears to be completely 
absent of rationale between the facts found in the WBP determination 
and the choice made to commission the NTT, and thus raises the question 
of whether BLM acted arbitrarily and capriciously. Moreover, the 
provisions in the NTT lead to a species-centric policy that assumes 
conservation of sage-grouse is the highest and best use of the land 
which directly violates FLPMA's multiple-use mandate (43 U.S.C. 
Sec. 1701(a)(7)). BLM should be compelled to provide a reasonable 
explanation for ignoring Manual 6840 and the 2004 Guidance and 
replacing them with the NTT in light of USFWS' findings regarding 
Manual 6840 in the WBP determination.
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    \16\ Under the APA agency action is only judicially reviewable if 
there is a question of law and not limited to questions of fact. So 
there needs to be a ``substantive legal standard'' set out in a statute 
like NEPA or FLPMA in order for an arbitrary and capricious standard of 
review to be upheld by the court.
    \17\ Citing Burlington Truck Lines v. United States, 371 U.S. 156, 
168, 83 S.Ct. 239, 245-246, 9 L.Ed.2d 207 (1962).
    \18\ Citing Bowman Transp. Inc. v. Arkansas-Best Freight System, 
419 U.S., at 285, 95 S.Ct., at 442; Citizens to Preserve Overton Park 
v. Volpe, 401 U.S., at 416, 91 S.Ct., at 823(1971).
---------------------------------------------------------------------------
    Also under the arbitrary and capricious standard of review, if an 
agency completely fails to consider an important aspect of a problem, 
like the fact that USFWS found that Manual 6840 could provide adequate 
conservation measures if implemented properly through RMP's, the court 
may find that the agency acted arbitrarily and capriciously (Motor 
Vehicle Mfrs.). The NTT does not use Manual 6840 as a foundation from 
which to build upon. In fact, it never even references Manual 6840 or 
explains the need for an entirely new regulatory approach. As such, it 
inappropriately discards an existing agency policy without ever 
justifying the radical change advanced in the NTT.
            c. NEPA Considerations
    NEPA was enacted in 1969 and creates a procedural obligation upon 
Federal agencies to consider the environmental impacts likely to occur 
as a result of major Federal agency action, significantly affecting the 
quality of the human environment (42 U.S.C.A. Sec. Sec. 4321-4070a). 
NEPA requires that agencies document their analysis and findings in an 
Environmental Impact Statement [EIS]. An EIS must address the 
environmental impacts of the proposed action, unavoidable adverse 
affects, secondary and cumulative impacts, alternatives to the proposed 
action, and mitigation designed to minimize the adverse impacts of the 
proposed action.
    The ``alternatives'' portion of the EIS has long been considered 
the ``heart'' of the NEPA process and requires an agency to rigorously 
explore and objectively evaluate all reasonable alternatives so that 
decisionmakers and the public are fully informed (40 CFR 
Sec. 1502.14(a)).\19\ Substantial case law exists regarding the range 
of alternatives that need to be included in an EIS. For instance in 
Natural Resource Defense Council v. Morton, 458 F. 2d 827 (D.C. Cir. 
1972) the court found that an agency must look at reasonable 
alternatives sufficient to allow for a reasoned decision, and it is not 
appropriate to disregard an alternative merely because it does not 
offer a complete solution to a broad problem. In Dubois v. USDA, 102 F. 
3d 1273 (1st Cir. 1997) the court held that the Forest Service acted 
arbitrarily and capriciously when its FEIS did not sufficiently explore 
all reasonable alternatives, and that an ``agency has duty to study all 
alternatives that appear reasonable and appropriate for study . . ., as 
well as significant alternatives suggested by other agencies or public 
during the comment period.'' \20\ Further, in Resources Ltd. v. 
Robertson, 35 F.3d 1300, 1307 (9th Cir. 1993) the court held ``The 
existence of a viable but unexamined alternative renders an 
environmental impact statement inadequate.'' \21\ To that end, failing 
to include full implementation of Manual 6840 and the 2004 Guidance as 
an alternative in the Draft EIS documents is arbitrary and capricious, 
and the Draft EIS documents should not be published for public review 
until full analysis of this alternative is included.
---------------------------------------------------------------------------
    \19\ See also Sec. 1502.14(b), (d)) ``Devote substantial treatment 
to each alternative considered in detail including the proposed action 
so that reviewers may evaluate their comparative merits.'' (``Include 
the no action alternative.'')
    \20\ Quoting Roosevelt Campobello Int'l Park Comm'n v. USEPA, 684 
F. 2d. 1041, 1047 (1st Cir. 1982).
    \21\ Quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 
1519 (9th Cir. 1992). See also, NRDC v. Callaway, 524 F.2d 79, 92 (2d 
Cir. 1975) (citation omitted) ``It is absolutely essential to the NEPA 
process that the decisionmaker be provided with a detailed and careful 
analysis of the relative environmental merits and demerits of the 
proposed action and possible alternatives, a requirement that we have 
characterized as `the linchpin of the entire impact statement.' '' 
(emphasis added); Silva v. Lynn, 482 F.2d at 1285; All Indian Pueblo 
Council v. United States, 975 F.2d 1437, 1444 (10th Cir. 1992) (holding 
that a thorough discussion of the alternatives is ``imperative'').
---------------------------------------------------------------------------
    In addition, the principle of informed decisionmaking is the 
primary purpose of NEPA, and is intended to be used as a tool during 
the planning and decisionmaking process. As such, an EIS should not be 
used to justify decisions that have already been made and ``[a]gencies 
shall not commit resources prejudicing selection of alternatives before 
making a final decision'' (40 CFR Sec. Sec. 1502.2(f), emphasis 
added).\22\ Nevertheless, the BLM has already decided to incorporate 
the NTT conservation measures into 79 of its RMP's prior to issuance of 
the FEIS, as Assistant Director Edwin Roberson indicated in his 
declaration in the U.S. District Court of Idaho (Western Watershed 
Project v. Salazar, No. 4:08-CV-516-BLW, U.S. District Court of Idaho, 
2013, decl.), and is in direct violation of NEPA.
---------------------------------------------------------------------------
    \22\ See also, 1500.1(b), ``NEPA procedures must insure that 
environmental information is available to public officials and citizens 
before decisions are made and before actions are taken.'' (emphasis 
added)
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                          b. technical errors
    In addition to the concerns and issues articulated by the peer 
reviewers, substantial technical errors are present throughout the NTT, 
in the form of misleading use of citations and use of citations that 
are not verifiable because they are not provided in the ``Literature 
Cited'' section. If the NTT's claims cannot be scientifically verified, 
it cannot be considered the ``Best Available Science.''
1. Source Mischaracterization
    The work of one researcher, J.W. Connelly, is cited 12 times in the 
NTT; however, 25 percent of the time Connelly was referenced there was 
not a corresponding source available to review. This also is true for 
B.L. Walker who is cited 11 times, and 45 percent of the time there was 
not a corresponding source to review.\23\ Together, these researchers 
work was improperly used 34 percent of the time. Whether this is a 
result of poor editing or intentional misuse of authority, it does not 
change the reality that it limits the ability of outside reviewers or 
the public to verify the claims presented, which is critical to the 
review process, and which reduces the NTT's scientific credibility even 
further. Oddly, there are articles listed in the ``Literature Cited'' 
that are not used within the document itself, again, creating 
credibility issues for the NTT.
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    \23\ Comprehensive, quantifiable review of all the sources used in 
the NTT was not conducted. These authors are highlighted because of how 
frequently they were used within the NTT. It is possible that this same 
type of error is present with other researcher's works.
---------------------------------------------------------------------------
    Another example of source mischaracterization is misleading use of 
authority. In the NTT, the BLM stipulates that a full reclamation bond, 
which would result in full restoration of priority habitat,\24\ be 
included in the terms and conditions of approved RMP's that allow for 
oil and gas leases (NTT at 23). However, the first source cited, 
Connelly et. al. 2000, does not directly support this conservation 
measure. Connelly et. al. 2000 instead provides that in breeding 
habitat only, the rangeland should be restored to a condition that will 
provide suitable breeding habitat. Moreover, Connelly et. al. 2000 only 
recommends this level of restoration for areas where there has been at 
least 40 percent loss of habitat, it does not necessarily apply range-
wide, like the NTT implies. With respect to winter habitat restoration, 
the discussion in Connelly et. al. 2000 is limited to managing 
prescribed burns and reseeding techniques, and does not establish the 
level of restoration required in winter habitat.
---------------------------------------------------------------------------
    \24\ The NTT classifies breeding habitat, early brood-rearing 
habitat, late brood-rearing habitat, and wintering habitat as priority 
habitat.
---------------------------------------------------------------------------
    The NTT also stipulates that with regard to fuel management, 
sagebrush canopy should not be reduced to less than 15 percent (NTT at 
26). However Connelly et. al 2000, the source cited, does not support 
this proposition. What Connelly et. al. 2000 does say is that land 
treatments should not be based on schedules, targets, and quotas 
(Connelly et. al. 2000 at 77). The 15 percent threshold across the 
range is not supported, as Connelly et al. distinguish between types of 
habitat and then provide corresponding sagebrush canopy percentages 
which vary from 10 percent to 30 percent depending on habitat function 
and quality.
    As previously discussed, the NTT stipulates that in order to 
maintain or increase sage-grouse populations, priority habitat must be 
managed so that 70 percent of sage-grouse habitat is ``adequate'' (NTT 
at 7). However on page 6, the NTT claims that 50-70 percent of the 
range must be adequate to persist, and then provides three sources to 
support its proposition. Two of the three sources were reviewed and do 
not support this assertion.\25\ At best, one study suggests that 
``preferably'' 65 percent is necessary for sage-grouse to persist, but 
the results of this study give measurements related to range 
persistence and how that correlates to extirpation and only provides 
this threshold anecdotally. In essence, if occupied habitat was 
converted to a crop field, for example, the sage-grouse population 
closest to the converted area was less likely to persist than 
populations located in suitable habitat farther away from the crop-
field. These results do not indicate that 70 percent or even 65 percent 
of the habitat must be suitable, only that fringe populations are more 
likely to be extirpated.\26\
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    \25\ We were unable to obtain the following source. As such, any 
conclusions that are drawn in this report relating to this source are 
subject to change: M.J. Wisdom et.al., Factors Associated with 
Extirpation of Sage-grouse, 2011. Pages 451-472 in S.T. Knick and J.W. 
Connelly (editors). Greater Sage-grouse: Ecology and Conservation of a 
Landscape Species and Its Habitats. Studies in Avian Biology (Vol. 38). 
University of California press, Berkeley, California, USA.
    \26\ See C.L. Aldridge et al., Range-wide Patterns of Greater Sage-
grouse Persistence. Pages 983-994. Diversity and Distributions (Vol. 
7). 2008.
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                   c. conclusions and recommendations
    During the peer-review period for the NTT, multiple peer reviewers 
criticized the applicability of the NTT due to misapplication of the 
science and omission of existing regulatory programs that could be used 
to conserve sage-grouse and its habitat. As a result the NTT would not 
likely withstand scrutiny under PECE.
    Additional research shows inadequacies in the science itself. 
Limited analysis of the science used in creating the NTT, as well as 
the science used in the WBP determination, has shown that there has 
been:

   Significant mischaracterization of past research;
   Methodological bias;
   Substantial errors and omissions;
   Lack of independent authorship and peer review; and
   Substantial technical errors.

    These issues call into question whether the ``Best Available 
Science'' was in fact used to establish the conservation measures in 
the NTT, and the validity of the NTT as a whole. To that end, flawed 
science will lead to flawed species-centric policy, like that in the 
NTT. Manual 6840 is designed to be in compliance with the ESA, and to 
conserve species so that listing under the ESA is no longer necessary. 
As such, RMPs that include the conservation measures pursuant the 
Manual and the 2004 Guidance and which provide for: (1) the proper 
design and implementation of the conservation measures; (2) effective 
monitoring to determine whether the conservation measures are having 
the desired on-the-ground effect; and (3) require adaptive management 
to adjust the conservation measures in response to the monitoring data 
is sufficient to preclude listing of the sage-grouse if implemented 
properly. However, the NTT does not use Manual 6840 as a foundation 
upon which to build. In fact, it never even references Manual 6840, nor 
does it explain the need for an entirely new regulatory approach. As 
such, it inappropriately discards an existing agency policy without 
ever justifying the radical changes advanced in the NTT, and is thus 
arbitrary and capricious.
    The NEPA process requires an agency to rigorously explore and 
objectively evaluate all reasonable alternatives so that decisionmakers 
and the public are fully informed (40 CFR Sec. Sec. 1502.14(a), 
1502.14(b), (d)). Failing to include full implementation of Manual 6840 
and the 2004 Guidance as an alternative in the Draft EIS documents is 
arbitrary and capricious, the Draft EIS documents should not be 
published for public review until full analysis of this alternative is 
included.\27\
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    \27\ See discussion, supra page 13.
---------------------------------------------------------------------------
    NEPA is intended to be used as a tool during the planning and 
decisionmaking process. As such, an EIS should not be used to justify 
decisions that have already been made. Therefore, the inclusion of the 
NTT conservation measures into 79 of BLM's RMPs \28\ prior to issuance 
of the FEIS is in direct violation of NEPA (40 CFR Sec. Sec. 1502.2(f), 
1500.1(b)) and is arbitrary and capricious (5 U.S.C. Sec. 706(2)(A)).
---------------------------------------------------------------------------
    \28\ See Western Watershed Project v. Salazar, No. 4:08-CV-516-BLW, 
U.S. District Court of Idaho, 2013, decl.
---------------------------------------------------------------------------
    The policy and technical flaws in the NTT are considerable and must 
be addressed before it is fully implemented as it could result in 
ecologically devastating consequences, and conflicts with FLPMA's 
multiple use mandate. Consideration of its ability to withstand PECE 
scrutiny is especially important because USFWS has already indicated 
that Manual 6840 is an adequate conservation effort if implemented 
through RMP's. Therefore, the BLM must consider fully implementing 
Manual 6840 and the 2004 guidance into its RMPs that contain sagebrush 
ecosystems. The BLM should also provide a reasonable explanation for 
replacing Manual 6840 and the 2004 Guidance with the NTT in light of 
USFWS' findings about the Manual in the WBP determination.

                              WORKS CITED

68 FR 15100-15115. 2003. Policy for Evaluation of Conservation Efforts 
        When Making Listing Decisions.
16 U.S.C. 1531-1544, 87 Stat. 884. Endangered Species Act of 1973.
42 U.S.C. Sec. 4321 et. seq. National Environmental Policy Act.
43 U.S.C. 1712(c) Federal Land Management Policy Act.
5 U.S.C. 500 et seq. Administrative Procedure Act.

75 FR 13910. 2010. Endangered and Threatened Wildlife and Plants: 12-
        month Finding for Petitions to List the Greater Sage-Grouse as 
        Threatened or Endangered.
Aldridge, C., S.E. Nielson, H.L. Beyer, M.S. Boyce, J.W. Connelly, S.T. 
        Knick, et al. (2008). Range-Wide Patterns of Greater Sage-
        grouse Persistence.
Center for Environmental Science, Accuracy and Reliability (CESAR). 
        (2012). Science or Advocacy? Ecology and Conservation of 
        Greater Sage-Grouse: A Landscape Species and its Habitats: An 
        analysis of the four most influential chapters of the 
        monograph.
Connelly, J. W., Schroeder, M., Sands, A., & Braun, C. (2000). 
        Guidelines to Manage Sage-grouse Populations and Their 
        Habitats. Wildlife Society Bulletin 28:967-985.
Doherty, K., D.E. Naugle, H.E. Copeland, A. Pocewicz, & J.M. Kiesecker. 
        (2011). Energy Development and Conservation Tradeoffs: 
        Systematic Planning for Greater Sage-Grouse in Their Eastern 
        Range.
Hagen, C., Connelly, J., & Schroeder, M. (2007). A Meta-Analysis for 
        Greater Sage-Grouse Nesting and Brood Rearing Habitats. 
        Wildlife Biology 13 (Supplement 1), 42-50.
Knick., S., S.E. Hanser, R.F. Miller, D.A. Pyke, M.J. Wisdom, S.P. 
        Finn, et al. (2009). Ecological Influence and Pathwasy of Land 
        Use in Sagebrush. in S.T. Knick and J.C. Connelly (editors), 
        Greater Sage-Grouse: Ecology and Conservation of a Landscape 
        Species and Its Habitats. Studies in Avian Biology (vol. 38), 
        203-251.
U.S. Department of the Interior. (2004, November). Bureau of Land 
        Management National Sage-Grouse Habitat Conservation Strategy: 
        1.31 Guidance for Addressing Sagebrush Habitat Conservation.
U.S. Department of the Interior. (2011, December 21). A Report on 
        National Greater Sage-Grouse. Sage-Grouse National Technical 
        Team.
U.S. Department of the Interior, Bureau of Land Management. (2008). 
        Manual 6840: Special Status Species Management.
                                 ______
                                 

           Conservation Measures/Proposed Planning Decisions

              Independent Review of Conservation Measures

                  Reviewer Comments--December 18, 2012
I) Introductory comments by reviewers

  a) R1--First of all, putting together range-wide recommendations for 
        sage-grouse conservation measures is an unenviable and 
        difficult task fraught with ecological complexities, strong and 
        diverse opinions, and judicial and political realities. To that 
        end my hat is off to those in the spotlight, and I wish you the 
        best going forward. That said, the impact of this document will 
        be substantial and long-lasting; realistically it could be the 
        standard that governs most land management activities on much 
        of the public land in 11 Western States. With that in mind I 
        have done my best to critically evaluate the utility of the 
        current draft and provide constructive comments for its 
        improvement.
  b) R2--I have reviewed the ``Conservation Measures/Proposed Planning 
        Decisions'' document. It is easily the most far-reaching sage 
        grouse conservation strategy that BLM has ever considered, and 
        they should be commended for its development. There are areas 
        where I believe the strategy can be strengthened, and/or blow 
        back minimized which will make the strategies more effective.
  c) R3--I will preface my comments by saying that I am not entirely 
        sure about the intent or expected outcomes associated with the 
        document, and that I focused on the Range Management, Fire and 
        Fuels Management, and Habitat Restoration sections. The letter 
        from Ken Mayer provided a clue as to the intent (``. . . to 
        help BLM develop a set of conservation options that BLM field 
        managers will apply in the resulting Instruction Memorandum 
        (IM)''). If the goal here is to outline conservation options 
        for sage-grouse, then the document seems to fall short in my 
        view. The shortcomings I see fall into several categories:
    1)  There is no introduction as to the intent of the document, it 
            reads as a laundry list of items. There is no discuss ion 
            of the seasonal requirements of sage-grouse to provide 
            managers a context for their actions. There are limited 
            references to the state-level sage-grouse plans. A good 
            deal of effort went into these plans and they contain 
            valuable information that should be incorporated into the 
            planning process.
    2)  There seems to be no focus on identifying the limiting habitats 
            as a first step. How can managers be expected to prioritize 
            their efforts if there is no analysis of which habitats are 
            most limiting?
    3)  If we are to maintain sage-grouse habitat it will be critical 
            to identify and understand the risks to each particular 
            habitat type. There seems to be limited discussion of risk 
            analysis in the sections [ reviewed.
    4)  If the document is to be applied across the sage-grouse range 
            it does not make sense to use specific numbers (15 percent 
            sagebrush cover or 12 inches of precipitation) on plant 
            communities that vary tremendously over even small 
            distances. Use concepts that make ecological sense (site 
            potential or risk factor), rather than trying to simplify 
            our complex landscapes.
    5)  It seems that everyone familiar with the subject recognizes 
            that sage-grouse require large intact landscapes, yet there 
            is no mention of a landscape perspective or spatial scale 
            in the document. For example, a series of 5 acre projects 
            may sound good on paper, but may do nothing to help the 
            bird.

        In summary, the approach taken in the document is rather short-
            term and narrow, and it seems to miss the opportunity to 
            take a more holistic and long-term view of sage-grouse 
            management. Since the IM is to be used to revise or amend 
            Resource Management Plans, which are long-term in nature, 
            it seems to me that a broader discussion in this document 
            would be of more value.
  d) R4--No Comments
  e) R5--No Comments
  f) R6--Opening paragraph. I don't really see any habitat and 
        population objectives.

2) Comments on Structure

  a)  R1--They develop a list of conservation strategies that apply to 
        priority habitat and don't define it? The definition they gave 
        could be changed to ``to be determined.'' The devil is 
        completely in that detail. Even using core area is inadequate, 
        in that many ``cores'' are based only on leks, and mayor may 
        not include other important seasonal habitat. I understand the 
        need and desire to have a flexible definition to accommodate 
        variation across the range, but far better to have a base 
        definition to which States can append other criteria as 
        necessary, than to defer the definition.
  b)  R2--The document states at the beginning that the ``following 
        conservation measures are designed to achieve population and 
        habitat objectives stated in this report'', yet no population 
        or habitat objectives were stated. I assume they are in another 
        part of the document I did not see. The document is an odd mix 
        of scientific citations and policy decisions, with no real tie 
        between the two. I expected a science document that reviewed 
        the literature, laid out what is known about program area 
        impacts to sage grouse, and where the uncertainties lie. The 
        science review would lead to a range of numbers and alternative 
        approaches, which would then segue into a policy document that 
        described the approach chosen. The science team would develop 
        the science document, the program managers the policy outcome 
        emanating from it. This seems a strange blend of policy loosely 
        backed by citations, with no analysis of the science. Because 
        there is no iteration of the rational scientific basis for the 
        very prescriptive strategies, I would anticipate strong 
        blowback by Industry and by Environmental groups, the former 
        finding it over-reaching and the latter inadequate.
  c) R3--No Comments
  d)  R4--The organization could be more consistent. Various sections 
        address high-priority areas and general areas, some don't 
        include both (i.e., only address high-priority), and some 
        points are repeated over in several activities. There should be 
        a section containing provisions common to all activities for 
        both high-priority and general areas (such as for reclamation/
        restoration, roads, other infrastructure). Then the separate 
        activities can have activity-specific provisions.
    i)  Are the habitat references to occupied habitat, unoccupied 
            habitat, both? One of my concerns is that actions may be 
            taken in presently unoccupied habitat that can compromise 
            its value for sage-grouse. That needs to be explicitly 
            addressed. Unoccupied habitat can still be a high-priority 
            area.
    ii)  There is no activity section for Fish/Wildlife/Special Status 
            Plants actions as they may otherwise affect sage-grouse 
            (e.g., rehab projects for species other than sage-grouse). 
            Also, such a section (or Range) should contain provisions 
            for identifying seed reserves to be managed for seed 
            collection.
    iii)  There should be a Planning-specific section/provision/
            umbrella for all of these sections. One provision would be 
            that ``No planning effort will be initiated until a 
            complete HAF evaluation has been completed for the entire 
            planning area under consideration and adjacent sage-grouse 
            habitats that may be impacted by activities in the planning 
            area under consideration.'' Further, All BLM land use plans 
            should contain a section about relevant or associated LWG 
            plans and their applicability to BLM actions and provisions 
            in the area addressed by the LUP.
    iv)  Soil productivity needs to be explicitly addresses when 
            considering alternatives for activity plans and plans of 
            operation. Burying of lines, constructing roads, installing 
            livestock facilities, etc. All seek to exploit the deepest, 
            most productive soils which can have the most detriment to 
            habitat productivity.
    v)  All activity plans should explicitly address PECE 
            considerations, i.e., the certainty of implementation and 
            certainty of effectiveness. Given the budget situation for 
            the foreseeable future, plan projections of rosy success 
            are often nothing more than happy bullroar. I've seen it 
            too many times before.
  e) R5--No Comments

  f) R6--No Comments

3) General Comments

  i) R1--Space and time
    (1) A central premise in ecology is the notion that ecological 
            processes unfold in both space and time. Lack of 
            consideration of space, and particularly (in this document) 
            time is a critical mistake that, to me, renders this 
            document problematic, if not dangerous. Let's consider both 
            dimensions and how they might influence the current 
            document.

      As written, there is essentially no consideration of the temporal 
            dynamics of plant communities that provide sage-grouse 
            habitat. For example, let's consider a mountain big 
            sagebrush community with high abundance of perennial 
            grasses and shrubs. Furthermore, let's say that there are 
            numerous small (< 1-m tall) western juniper plants present. 
            If we forget about time, then we might look at this 
            community and say that it would provide great habitat for 
            specific life history stages of sage-grouse and thus it 
            should be ``left alone'' from a management standpoint. 
            However, given what we know about juniper encroachment, if 
            we leave it alone for long enough (perhaps 70 to 90 years) 
            it will eventually transition to juniper dominance and the 
            shrub (and perhaps perennial grass) component will be lost. 
            At that point it is no longer sage-grouse habitat. An 
            alternative would be to bum the plant community while it is 
            still in the early stages of juniper encroachment. This 
            would remove the shrub component and dramatically reduce 
            quality of or eliminate (depending on bum size) sage-grouse 
            habitat at the site. However, grouse habitat would improve 
            as sagebrush abundance recovered over time; based on 
            available literature this process might take two decades. 
            So, at the end of 20 years, we could either have a 
            recovered sage-grouse habitat without juniper (i.e., with 
            fire) or be well on our way to losing this site as sage-
            grouse habitat (i.e., juniper dominance in the absence of 
            fire or other management action). The point of all this is 
            that in ecological systems that operate in both space and 
            time, we cannot categorize either disturbance or management 
            actions in the absence of considering the temporal 
            component. Overlooking the temporal aspects of ecological 
            disturbances such as fire promotes a species-centric focus 
            in which disturbance effects are characterized using the 
            intellectually pedestrian notions of ``good'' or ``bad'' 
            without consideration of the specific temporal context 
            within which these disturbances unfold. This, in turn, 
            reinforces a focus on sage-grouse, rather than a focus on 
            the ecology of the ecosystems to which the integrity of 
            sage-grouse habitat is subservient.

      The current document does a better job with space (as compared to 
            time) but I think the document needs to more explicitly 
            consider the spatial context within which sage-grouse 
            management is set. You need to better incorporate spatial 
            variability in site potential via the use of ecological 
            site descriptions and realize the interrelationships 
            between ESD's and the effects of management actions. For 
            example, under ``Emergency Stabilization and 
            Rehabilitation'', you state, in part: ``. . . Re-
            establishment of sagebrush overstories shall be the highest 
            priority for rehabilitation efforts based onsite 
            potential.'' This may be fine for high elevation sites, 
            but, I strongly disagree for low-elevation sites where 
            annual grasses are biggest threat to ecological integrity. 
            The ``highest priority'' on these sites should be 
            maintaining ecological integrity of the site by having 
            something other than annual grasses present. The highest 
            probability treatment in this case is to seed perennial 
            grass species, which are, at present, the best defense 
            (once established) against annual grass invasion. Shrubs 
            are harder to establish on these sites and restoration of 
            that component should take place after or in conjunction 
            with securing the ecological integrity of the site. Thus, 
            the appropriate management actions, and in this case the 
            order of appropriate management actions, is strongly tied 
            to ecological site. This concept needs to be specifically 
            addressed to avoid on-the-ground problems for BLM. I would 
            recommend either 1) sufficiently vague language to allow 
            for flexibility at more local scales, 2) explicitly 
            recognizing the need for reliance on ESDs, or, ideally, 3) 
            both.

      The document also misses the mark when it comes to larger scale 
            variation associated with inter and intraregional variation 
            in plant community ecology. This is a serious omission. For 
            example, the present-day disturbance ecology of relatively 
            low elevation big sagebrush communities is in stark 
            contrast to that of higher elevation big sagebrush 
            communities. Using southeast Oregon as an example, too much 
            fire has been associated with proliferation and spread of 
            annual grasses in lower elevation plant communities; 
            arguably the single greatest threat to sage-grouse habitat 
            at lower elevations. At higher elevations, too little fire 
            is associated with encroachment of native conifers (namely 
            western juniper) into sagebrush/bunchgrass habitats to the 
            extent that conifer-associated loss of sagebrush habitat is 
            now the greatest threat (as defined by the state-level 
            sage-grouse working group) to sage-grouse habitat in the 
            State. If this document is to be effective in defining 
            conservation measures on a range-wide basis, it must take 
            into account the considerable large-scale variation in 
            plant community ecology present within the range of sage-
            grouse. Otherwise, we are faced with species-centric 
            generalizations of the effects of ecological processes that 
            mayor may not represent ecological reality.

  ii) Native vs. introduced grasses
    (1)  Exotic annual grasses are a serious and ongoing threat to low 
            elevation sage-grouse habitat throughout the range of the 
            species. At present, our ability deal with annual grasses 
            at large spatial scales is very limited. The best 
            management option currently available involves 
            establishment of perennial grasses, which inevitably brings 
            up the discussion of native vs. introduced species. Re-
            seeding with either group can be difficult at low 
            elevations. However, the bulk of the peer-review literature 
            clearly indicates that introduced perennial grasses (namely 
            crested wheatgrass and its affiliates) are the highest 
            probability choice. My point is that maintaining the 
            ecological integrity of these sites through establishment 
            of perennial vegetation should be the first priority, and 
            the best shot at making that happen at low elevations is 
            with introduced species. I say this in full recognition of 
            the fact that subsequent conversion of these introduced 
            communities back to native has proven incredibly difficult 
            and with present technology is simply not feasible at large 
            spatial scales.

  iii) Climate change
    (1)  I would suggest that language directing managers to consider 
            future climate change in determining seeded species be 
            taken out. Present knowledge of climate change is not at 
            the stage (i.e. accurate enough) where we can predict 
            future climate to the extent that we are designing seed 
            mixes based on those predictions and we have enough 
            problems to worry about with restoration success in the 
            present climate.

  iv) Other thoughts
    (1)  What happens when potential of the ecological site is at odds 
            with stated sage-grouse habitat requirements? This could be 
            clarified by specifically incorporating Ecological Site 
            Descriptions and not using cutoff values such as 15 percent 
            sagebrush canopy cover.
    (2)  The notion that grazing privileges in sage-grouse areas should 
            be retired when base property is transferred or a current 
            operator is willing to retire such privileges assumes 
            grazing is automatically a problem and can't be used as a 
            tool for habitat management. It also assumes that grouse 
            are the highest and best use of the land . . . this HAS to 
            be addressed before these guidelines become policy or 
            serious problems will arise. What about FLPMA . . . where 
            does it fit into the picture?
    (3)  The notion that no treatments will be allowed in known winter 
            range seems a bit draconian. What if winter habitat is also 
            breeding habitat? Dave Dahlgren's research has demonstrated 
            how small patch-scale sagebrush reduction treatments can be 
            used to create beta diversity that improves grouse habitat 
            while retaining sagebrush dominance at large scales. Again, 
            the issue of spatial scale.
    (4)  Document suggests not using fire to treat sagebrush in less 
            than 12-inch precipitation zones. I generally agree with 
            this, but at the same time I have a problem with making 
            these broad generalizations about ecosystems, the 
            properties of which vary strongly across sites and over 
            time.
  b)  R2--Almost all of the emphasis is on preventing additional 
        habitat loss or degradation on BLM land, with relatively little 
        effort spent on strategies to improve existing habitat. BLM has 
        huge opportunities to remove fences, close roads, control 
        weeds, eliminate crested wheat grass, develop springs, etc., to 
        make degraded habitats better, and this should be emphasized as 
        much as not making things worse.

    i)  The document suffers from a I-size fits all approach that lacks 
            context. Lumping all sage grouse seasonal habitats in all 
            locations across the range regardless of population size or 
            relative importance of the population into either 
            ``priority sage grouse habitats'' or ``general sage grouse 
            habitats'' strikes me as tremendously over simplistic. When 
            combined with very prescriptive direction, it may lead to 
            strong opposition, which may lead to weak application of 
            the IM.

    ii)  The document does not define either ``priority'' or 
            ``general'' sage grouse habitat. Without a definition the 
            conservation measures have no meaning. I asked for a 
            definition, and what I was given was this:

                (a) Preliminary Priority Habitat [PPH] is the area 
                identified as having the highest conservation value 
                relative to maintaining sustainable Greater Sage-Grouse 
                populations. The PPH are being identified by State 
                wildlife agencies and the BLM (these may also be 
                referred to as ``core areas'' in some States).

                (b) Preliminary General Habitat [PGH] is occupied 
                habitat outside of PPH as identified by State wildlife 
                agencies and/or the BLM.

    iii)  The definition for priority habitat is circular, in that 
            ``highest conservation value to maintain sustainable 
            Greater sage grouse populations'' is also not defined. 
            There are as many definitions for core areas as there are 
            States, most at present are lek-based and therefore don't 
            consider brood rearing or winter habitats un less they 
            occur within whatever buffer is used. The definition for 
            general habitat is occupied habitat, so in that case why 
            not just use occupied habitat? I would expand that however 
            to include ``unoccupied but potentially suitable habitat.''
    iv)  Priority habitat must be defined before this document goes out 
            for wider review, rather than kicking that can down the 
            road. The elements that must be included would be lek/
            nesting habitat (rather than using arbitrary buffers may 
            want to include proportions of nesting hens included and 
            let the buffer vary with habitat quality and local 
            characteristics), late brood-rearing habitats, and winter 
            concentration areas. It would be far preferable to have a 
            base definition that is amended locally, than to have no 
            definition and allow each State and potentially Field 
            Office to develop their own.
    v)  There is no performance aspect or adaptive management 
            component. The document begins by stating that the 
            following conservation measures are designed to achieve 
            population and habitat objectives stated in this report, 
            yet that is the only time population and habitat objectives 
            are mentioned. What happens if the conservation measures 
            don't achieve population and habitat objectives? Some type 
            of rigorous adaptive management must be the final 
            conservation strategy, where the effectiveness of these 
            measures, and the degree to which sage grouse habitat and 
            populations are conserved by these measures (in the face of 
            other threats), are constantly evaluated and reassessed. 
            There is a sentence on monitoring that says a monitoring 
            strategy for sage-grouse and sagebrush will be developed 
            for adaptive management purposes, but this ignores the 
            critical feedback aspect of adaptive management, where data 
            collections feed back to change management strategies where 
            necessary.

  c) R3--No Comments.

  d) R4--No Comments.

  e) R5--No Comments.
Travel and Transportation

1) Priority sage-grouse habitat areas

  a) R1--No Comments.

  b) R2--This is a good example where opportunities to make things 
        better as opposed to not making them worse exist. The document 
        talks about completing activity level plans within 5 years and 
        ``where appropriate'' designating routes within priority 
        habitats as administrative access only. Routes that are 
        adjacent (within \1/4\ to \1/2\ mile?) to leks should be moved 
        away from leks or closed, and seasonal closures should be 
        considered within lek areas similar to what Gunnison County has 
        done in Colorado. Travel management plans should be reviewed 
        within some reasonable timeframe to consider de-designating and 
        closing routes near leks or brood areas.

    The ROW exclusion in priority habitats is good, but the exception 
        is troubling. Simply excusing new road construction within 
        priority habitats by requiring off-site mitigation if it causes 
        surface disturbance to exceed 2.5 percent is not adequately 
        protective. I don't know where 2.5 percent comes from, I 
        percent surface disturbance in core areas is the number I've 
        seen from Naugle's work. It also matters greatly whether that 
        road is \1/4\ mile or 3 miles from a lek (or merely crosses 
        nesting habitat), and whether that lek has 5 males or 300; one-
        size fits all is not the right model here. The purpose of the 
        ROW matters as well; oil and gas rigs vs. mountain bikes. You 
        can't mitigate loss of a 100 bird lek if frequent traffic 
        caused abandonment.

    ``Take advantage of opportunities'' to remove, bury or modify 
        existing power lines seems to be very weak guidance that is a 
        long way from any instruction that would lead to these actions. 
        This should be recast as actions that field offices must take.
  c) R3--No Comments.
  d) R4--I don't see anything about seasonal closures in this section. 
        At the end of the first point is the phrase ``at a minimum.'' 
        What else would quality?

    With respect to the 2.5 percent surface disturbance, this should be 
        changed to something like ``if the total infrastructure 
        footprint to sage-grouse habitat would exceed 2.5 percent, then 
        off-site mitigation at least equal to the total footprint will 
        be required.'' Although a powerline, road, etc., may only 
        physically impact a small area that would not cause an area to 
        exceed 2.5 percent, the effective habitat impacts (footprint) 
        could affect much more than the 2.5 percent physical 
        disturbance area.
  e) R5--No Comments.
  f) R6--No Comments.
Recreation

1) Special Recreation Permits
  a) No Comments.
2) Recreational Management Areas
  a) No Comments.
Lands/Realty
Rights of Way

1) General Comments on Lands/Realty
  a) R4--re: ``entire footprint''--is this only the physical footprint 
        or the effective habitat footprint? Same point to be made 
        regarding the phrase ``existing disturbance.'' Second point, 
        re: ``disturbance exceeds 2.5 percent'' See previous comment 
        (earlier email) regarding physical versus habitat disturbance. 
        Third point (evaluate and take advantage of . . . ) This should 
        apply generally, not just to priority areas. Insert ``and 
        proposed'' between ``existing power'' so it reads ``existing 
        and proposed power lines.'' Under ``Planning Direction Note,'' 
        to the last sentence, after ``during the planning process'' add 
        ``. . . resulting in it becoming an exclusion area not subject 
        to the exceptions described above.''
  b) R5--Why address only those disturbances that are larger than 2.5 
        percent of the area? All disturbances should be addressed. The 
        inability to address small areas usually leads to bigger 
        problems (i.e. weed infestations).

    Removing, burying, or altering power lines will most likely add 
        disturbances to the plant community that will be very difficult 
        to rehabilitate in many habitat types and thus decrease 
        suitable habitat and increase weed infestations in sage grouse 
        habitats
Land Tenure Adjustment

2) Priority sage-grouse habitat areas and general habitat areas
  a) R1--No Comments.
  b) R2--Retaining priority habitat in public ownership seems to be a 
        good strategy both as a conservation measure to protect against 
        conversion and to shift the burden of management of a 
        potentially listed species to the government. I do think the 
        language about acquisition of privately held habitat is a bit 
        open ended, and would suggest modifying that to reflect 
        acquisition of in-holdings or key parcels that are contiguous 
        to public ground so as not to appear like a Federal land grab. 
        I wouldn't also allow for the sale of BLM land to private 
        conservation organizations (land trusts) or State agencies as 
        long as there are conservation easements or other protections 
        in place to ensure sage grouse habitat is preserved in 
        perpetuity. There are situations where taking land out of 
        multiple use mandates may well be in the best interest of sage 
        grouse.
  c) R3--No Comments.
  d) R4--Land Tenure Adjustment: this section only addresses priority 
        sage-grouse habitat areas. It should also address general sage-
        grouse habitat areas. Also the point made in the draft is only 
        about ownership patterns. The priority should be placed on 
        acquiring/managing/consolidating sage-grouse habitat. That's 
        probably intended, but as worded it is only inferred, not 
        explicitly stated.
  e) R5--Land exchange part appears to me to be very difficult. Private 
        land owners own much of the water on arid western lands. In my 
        experience they hold those properties in high regard and do not 
        want to give those holdings up, especially to the government.

    Again, the mineral rights are more sacred than the riparian areas, 
        mineral rights are seldom sold, but rather quick deeded from 
        generation to generation. Working in Nevada I commonly hear 
        ``you never sale mineral rights'', so with this mentality how 
        achievable would this be.
    f) R6--No Comments.
Proposed Land Withdrawals

3) Priority sage-grouse habitat areas

  a)  R2--'' Lands within priority sage-grouse habitat areas will be 
        proposed for mineral withdrawal.'' I understand and support 
        what withdraw means in this context, but don't understand what 
        proposed means? What happens after the proposal, and what 
        guidance is provided relative to appeals etc.?
  b)  R4--The example given (military range buffer area) seems like an 
        isolated situation, not something more likely to be encountered 
        across sage-grouse range. Can a better example be provided? Is 
        the buffer example one that is already under active 
        consideration? Fantasizing (again, think the present budget 
        situation), what if bases are closed and habitat reverts to the 
        BLM? How would restoration be conducted and who would pay?
Range Management

1) General
  a) R1--No Comments.
  b) R2--These strategies seem pretty tepid and largely reflect 
        commitments that BLM has already made. The statement ``Consider 
        at least one alternative in the NEPA document required for 
        permit renewal, if an effective deferred system that meets 
        sage-grouse habitat requirements are not already in place'' 
        doesn't seem to make sense as written since there is always 
        more than one alternative considered. I believe it is supposed 
        to say ``consider at least one deferred grazing alternative'' 
        as opposed to consider at least one alternative. Non-use for 
        some period should also be explicitly mentioned as a management 
        action that should be considered when sage grouse habitat 
        elements are not met by sites capable of meeting them. While 
        non-use or denial of permit applications may be possible 
        outcomes under ``grazing decisions'', neither are listed as one 
        of the five management actions to be considered, all of which 
        assume some level of grazing use.

    There is too much emphasis on protecting crested wheat grass 
        seedings (``introduced perennial grass seedings''). 
        Understanding they may concentrate grazing pressure, the 
        reality is there is an opportunity cost associated with the 
        potential sage grouse habitat those stands could be providing 
        and are not, that is ignored here. Sage grouse would be better 
        off if large tracts of crested wheat are converted back to sage 
        grouse/native grass and forb communities, with AUMs reduced if 
        necessary if loss of crested wheat stands reduces forage 
        availability. This is also true of large burns within occupied 
        range, which should be explicitly mentioned as targets for 
        sagebrush re-establishment.

    Structural range improvements, including fencing, corrals, 
        livestock handling structures etc., are prohibited within 
        priority habitats unless they conserve, enhance or restore sage 
        grouse habitat. It is impossible to determine whether they 
        conserve, enhance or restore sage grouse habitat or not without 
        some explicit criteria as to when they do and when they don't 
        that is context and scale relevant. For instance I can't 
        envision a situation where a fence line that goes through a lek 
        would on balance conserve, enhance or restore sage grouse 
        habitat regardless of offsetting gains from a livestock 
        management perspective. If the fence simply went through winter 
        range and excluded livestock from important brood habitat, I 
        could.
  c) R3--No Comments.
  d) R4--Change ``or'' to ``and''. Third point; last sentence. In the 
    last sentence, use of the term ``productive'' implies that Connelly 
    et al. and Hagen et al. included unproductive recommendations in 
    the publications.
  e) R5--I have always had a problem with this ``Rangeland Health'' 
    thing. I understand it to a point, but the reality is that the 
    health is in the eye of the beholder. Is a big sagebrush/bunchgrass 
    habitat with 10 percent sagebrush cover and good perennial grass 
    densities less healthier than 20 percent sagebrush cover and less 
    perennial grasses? Remember, good long-lived perennial grass 
    densities are the best way to suppress cheatgrass fuel loads that 
    is critical in protecting sage grouse habitats. The 20 percent big 
    sagebrush cover may very well be suppressing the much needed long-
    lived perennial grasses. Also, plant measurements taken by numerous 
    individuals, even with a strict protocol, have high error, so in 
    many cases the data you analyze does not represent on-the-ground 
    situations. You risk not achieving stated goals and objectives due 
    to this disconnect between data collected and on-the-ground 
    realities.

  Managing vegetation composition and understanding on-the-ground site 
    potential is very good!

  It is very difficult to modify grazing systems in the arid west. With 
    such variations in forage productions the climate does not offer 
    annual predictions, therefore livestock are put out on the range 
    during drought years in the same manner as during rare wet years. 
    Our rangelands simply do not provide the flexibility to accommodate 
    the livestock producer without some kind of financial hardship. 
    Most livestock producers are lacking winter allotments and have to 
    feed or supplement their stock at a high cost, therefore they are 
    chewing at the bit to get their livestock back on the range early 
    and keep them out their as long as possible. One of the best ways 
    to manage livestock is to get the cowboy back on the horse and to 
    focus on the distribution part of the management.

  Perhaps using programs that help pay for this labor could be 
    addressed. On three ranch operations that I work with closely, 
    there is an average of 1 cow/200 + acres, yet we have hot spots 
    from improper grazing management because the rancher is now a 
    farmer/mechanic and trying to produce winter forage for his stock. 
    Placing the cowboy back on the horse and manually moving their 
    stock will be much more beneficial and less time consuming than 
    sitting down at the table and trying to change their numbers and 
    seasons of use. You want this effort to be achievable then be 
    careful when placing the livestock industry on the defensive, the 
    only ones that make out are the lawyers. I once had a livestock 
    operator in Colorado tell me that it was ``hard to swallow someone 
    coming in and decreasing his equity in such a closed minded 
    fashion, how would they like it if I came in and took out a bedroom 
    and bathroom out of their home''. He ended up selling his property 
    to a developer. If this mentality is consistent out there, wildlife 
    in general could pay a price.
  e) R6--No Comments.

2) Implemelltillg Management Actions after Land Health and Habitat 
Evaluations

  a) R1--No Comments.
  b) R2--See comments above.

  c) R3--Maybe this makes sense to folks internal to BLM, but I did not 
    really understand the point of this paragraph. This is the only 
    place where ESDs are mentioned and that is probably a mistake. ESDs 
    should probably be the basis for many of the evaluations and 
    actions taken by BLM. That would provide for some consistency 
    across the county.

     ``BLM will manage for vegetation composition and structure 
            consistent with site potential (based on ESDs) to achieve 
            sage-grouse seasonal habitat objectives.'' This sentence 
            (as modified) seems to cover the topic pretty well.

     Implement management actions (grazing decisions, AMP/
            Conservation Plan development, or other agreements) to 
            modify grazing management to meet seasonal sage-grouse 
            habitat requirements. Consider singly or in combination 
            changes in: 1) Season or timing of use, 2) Numbers of 
            livestock, 3) Distribution of livestock use, 4) Intensity 
            of Use, and 5) Type of Livestock (e.g., cattle, sheep, 
            horses, llamas, alpacas and goats). Reviewer comment 
            ``Doesn't BLM have a reference document on grazing 
            management? If not it might be worth saying that mangers 
            should use the approach outlined in USDA-NRCS National 
            Conservation Practices Guide for prescribed grazing (using 
            grazing to achieved specific vegetation objectives) with a 
            focus on specific sage-grouse habitat needs.''

  d) R4--Under ``Implementing Management Actions after . . . 
    Evaluations'', second sentence; insert the phrase ``sage-grouse 
    conservation'' after ``at least one'', and change ``deferred'' to 
    ``grazing''. It doesn't matter what the new system is if it is 
    effective (recognizing that the deferment period could conceivably 
    be for several years). Change ``are'' to ``is''.

  e) R5--See comments above.

  f) R6--No comments.

3) Riparian Areas and Wet Meadows

  a) R1--No Comments.
  b) R2--See Comments above.
  c) R3--Analyze springs, seeps and associated pipelines to determine 
        if modifications are necessary to maintain the continuity of 
        the predevelopment riparian area within priority sage-grouse 
        habitats. Make modifications where necessary, considering 
        impacts to other water uses when such considerations are 
        neutral or beneficial to sage-grouse.
                Reviewer Comment: Woody plant encroachment is a major 
                threat to riparian systems in the western part of the 
                range (juniper species primarily in OR, ID, and NV), 
                but I imagine there is pine encroachment in higher 
                elevation meadows in other parts of the range as well. 
                There areas are lost as habitat if nothing is done.
  d) R4--First point, lead sentence. These areas should be managed 
    everywhere for PFC, period. That's a fundamental tenet of land 
    management.

  Third point re: water development; wells and stock ponds should be 
    included among the types of developments allowable only when sage-
    grouse habitat would benefit. Water developments almost always 
    exploiting vegetation on the most highly productive soils to 
    increase or otherwise facilitate livestock grazing. There are also 
    almost always invasive species issues associated with livestock 
    facilities, and the analysis horizon for EAs and LUPs is generally 
    only 10 years, which is not nearly long enough (my opinion). It's 
    only a matter of time until a new invader arrives or climatic 
    parameters become suitable for invasives establishment in, or 
    expansion from disturbed areas. The impact area(s) for livestock 
    facilities can include areas well away from the immediate 
    facilities, such as underneath stands of trees (e.g., mountain 
    mahogany) when livestock use the trees for shading and hammer the 
    vegetation and soils as a result of prolonged presence These areas 
    become sources for invasive establishment and spread and it's only 
    a matter of time before they expand by one or more mechanisms into 
    adjacent higher-quality vegetation stands. Lots of examples in the 
    Owyhees, Jarbidge where I have taken photos of such areas where 
    cheatgrass has become well-established and is lying in wait for the 
    right conditions and already fingering out along cowpaths.

  e) R5--How many of these wet meadows are private? How does this 
    affect the ability to meet these management goals? Here they are 
    discussing building fences, earlier they discussed removing 
    fencing. Is fencing harmful to sage grouse? Again, simply placing a 
    cowboy back on the range will reduce hot season grazing! Building a 
    fence around so many riparian areas will only increase maintenance 
    and repair which may add disturbances to the overall area and in 
    most cases place the livestock producer in a position where they 
    are spending time repairing fence on top of farming/mechanic duties 
    rather than moving and actively managing livestock. Don't these 
    fences just add perches for predators?

  Remember, site potential is important as stated earlier, but don't 
    forget the inherent potential of plant species to germinate, sprout 
    and establish in the face of such exotic species such as 
    cheatgrass. The best known method to suppress cheatgrass is through 
    the establishment of long-lived perennial grasses such as bluebunch 
    wheatgrass and crested wheatgrass. In the more arid locations of 
    the Great Basin the return of Wyoming big sagebrush back into these 
    disturbed habitats is more successful following the decrease in 
    wildfire frequencies that can be achieved through seeding of 
    introduced species such as crested wheatgrass. This is important 
    because the open window of seeding following a Wyoming big 
    sagebrush wildfire is that 1st fall season following the 
    wildfire event. If the seeding fails because of the choice to seed 
    species with less inherent potential, the window closes and then 
    some more aggressive, costly methodology to rehabilitate the 
    habitat is then needed. This latter approach is of high risk and 
    lower returns; don't fail during this open window! By highly 
    preferring native species that have little or no chance of 
    achieving the stated goals, which leads to further degradation in 
    many circumstances.

  Is the Federal Government going to go into the business of managing 
    their own livestock? In the part about retiring grazing permits I 
    have this question: Only about 7 percent of Nevada is considered 
    mountain brush habitat, whereas Wyoming big sagebrush is the major 
    plant community. Where is the fuels management? The removal of 
    livestock will most likely result in increased bunch grasses/fuel 
    loads in the mountain brush habitats. These fuel loads will 
    probably result in increased wildfires in these habitats that will 
    burn critical sagebrush communities. In the Wyoming big sagebrush 
    communities, the perennial bunch grasses are largely gone and 
    cheatgrass is now the dominant herbaceous vegetation. Whether 
    cheatgrass is 1" high or 12" high it will still produce seed and 
    build seed banks. Even though wildfires occur with the presence of 
    livestock, the reduction of such grazing would result in extreme 
    buildups of fuel loads. Again, resulting in further loss of 
    critical shrub communities. The simple removal of livestock will 
    not result in the return of healthy big sagebrush/bunchgrass 
    communities, especially in Wyoming big sagebrush communities. So, 
    how do you plan on managing these fuel loads?

  Also, these string meadow systems will have increase in herbaceous 
    grass species and decrease the forb component, how do you manage 
    the meadows to increase the critical forb component without some 
    type of grazing management? Yes horses can achieve that, but they 
    are not managed and therefore many meadow systems will not receive 
    this treatment and the risk of decreasing critical sage grouse 
    habitat needs also increases. This is not effective management.

  f) R6--No Comments.

4) Treatments to Increase Forage for Livestock/wild ungulates

  a) R1--No Comments.
  b) R2--See comments above.
  c) R3--For example: Some introduced grass seedings are an integral 
    part of a livestock management plan and reduce grazing use in 
    important sagebrush habitats or serve as a strategic fuels 
    management area.

  Reviewer Comment: Be careful here--we have had limited success 
    converting crested wheatgrass stands to natives in the Great Basin 
    and if this sort of approach is attempted in the wrong setting 
    there is a risk of conversion to annual invasive grasses and entry 
    into short fire return cycles.
  d) R4--No Comments.
  e) R5--See Comments above.
  f) R6--No Comments.

5) Structural Range Improvements and Livestock Management

  a) R1--No Comments.
  b) R2--See comments above.
  c) R3--Modify first sentence: Any new structural range improvements 
    and location of supplements (salt or protein blocks) will be 
    designed to conserve, enhance, or restore sage-grouse habitat 
    through an improved grazing management system relative to sage-
    grouse objectives. (Structural range improvements include but are 
    not limited to: cattleguards, fences, enclosures, corrals or other 
    livestock handling structures; pipelines, troughs, storage tanks 
    [including moveable tanks used in livestock water hauling), 
    windmills, ponds/reservoirs, solar panels and spring developments.)

  d) R4--Third point ``Evaluate existing structural . . .'' Ensure that 
    such evaluations address potential invasives as I discuss above. 
    Monitoring programs should include regular statistical sampling and 
    photo monitoring of invasive islands to document whether or not 
    incremental creeping from the disturbed areas is taking place.

  e) R5--See comments above.

  f) R6--No Comments.

6) Retirement of Grazing Privileges

  a) R1--No Comments.
  b) R2--No Comments.
  c) R3--Seems like the first thing to do is to assess the effects of 
    retiring the grazing. If the result of no grazing is increased risk 
    of fire, then it might be worth reconsidering.
  d) R4--This should also include retirements outside of high-priority 
    areas so that livestock use within high-priority areas can be 
    shifted out of the high-priority areas when desired.
  e) R5--No Comments.
  f) R6--No Comments.

Wild Horse and Burros Management
I) General Comments.
  a) R1--No Comments.
  b) R2--Woefully inadequate measures. While managing wild horses and 
    burros to AML levels in priority sage grouse habitats would be a 
    good start, the AML levels themselves must be re-evaluated and in 
    almost all cases lowered to conserve sage grouse habitat.
  c) R3--No Comments.
  d) R4--No Comments.
  e) R5--Pretty short addressing of the horses/burros issue. If you are 
    going to mention fencing, water hole dispersal etc., with livestock 
    then even with a proper management level of horses you need to 
    address hot season use and the degradation of these water holes by 
    horses and burros.
  f) R6--On-going section: Prioritize gathers? not sure what this is in 
    priority sage-grouse habitat, unless removals are necessary in 
    other areas to prevent catastrophic environmental issues, including 
    herd health impacts.
Minerals

1) General Comments

  a) R1--No Comments.

  b) R2--Closing priority habitats to mineral development and not 
    renewing existing leases in priority habitats is a huge 
    conservation measure, depending of course on the definition of 
    priority habitat that is ultimately settled on. Applying a NSO 
    stipulation within 3.1 miles of a lek, and within winter 
    concentration areas is also a big step. I also support the 
    requirement that Master Development Plans be required in priority 
    habitats, as opposed to individual APDs. In the Master Development 
    Planning process, some consideration should be given to waivers 
    within 3.1 miles of peripheral/small leks, in exchange for 
    maintaining NSO near true ``core'' lek areas. In other words, leks 
    of a half dozen males that are isolated are less important to sage 
    grouse conservation than core areas where the 3.1 mile buffer may 
    encompass several leks and hundreds of grouse.

  The exception to the NSO stipulation when the entire lease area is 
    within 3.1 miles is reasonable considering property rights conveyed 
    with existing leases, but new leases should not be granted on 
    parcel sizes so small as to make this likely. The full 3.1 mile 
    buffer contains almost 20,000 acres, which is likely an 
    unreasonable minimum lease size, but lease minimums of at least 
    1,000 acres should be instituted so keeping disturbance to within 
    less than 1 percent of the surface within breeding areas can be 
    accomplished.

  I do think some additional flexibility is called for. The exceptions 
    to the NSO state that if the entire lease is within 3.1 miles of a 
    lek or a winter concentration area (which will not be uncommon), 
    then the pad must be placed in the ``most distal'' part of the 
    lease. Depending on topography and other habitat aspects, the most 
    distal portion of the lease mayor may not be the best place to put 
    the pad from a sage grouse perspective, and some exception that is 
    demonstrably beneficial to sage grouse should be allowed.

  I think another conservation strategy that should be considered is to 
    not lease Federal mineral under State Wildlife Areas or private 
    ground that is managed for the benefit of sage grouse. In the 
    latter case a conservation easement and sage grouse management plan 
    should be required.

  Again I question whether less than or equal to 2.5 percent surface 
    area disturbance with no more than I pad per section is adequately 
    protective of sage grouse. Need to ensure that if infill 
    development is allowed under these circumstances it is restricted 
    to existing pads/roads only.

  One protection needs additional clarification, namely ``a seasonal 
    restriction will be applied that prohibits surface-disturbing 
    activities during the nesting and early brood-rearing season in all 
    priority sage-grouse habitat during this period''. Again, without a 
    definition of priority habitat it is not clear what this means. If 
    priority habitat includes winter range, which it should, then 
    breeding season timing stipulations would not be appropriate there. 
    I would suggest a buffer around leks (0.6 miles?), to which could 
    be added early brood-rearing habitat not contained within that 
    buffer. Seasonal timing stipulations have generally not been 
    effective sage grouse conservation strategies for a variety of 
    reasons, and are particularly vexing to industry given huge 
    directional drilling rigs that are expensive to operate and 
    difficult and expensive to move. If the net effect of timing 
    stipulations is to push drill rigs to private land that may be 
    better habitat, sage grouse are likely to be negatively impacted. 
    Master Management Plans should be developed that allow for 
    exceptions to seasonal timing stipulations when impacts are 
    mitigated by other conservation strategies.

  I generally support the BMPs as mandatory conditions of approval, but 
    the process needs to recognize that Industry frequently finds 
    better ways to do things more quickly than BMPs are modified, so 
    any mandatory aspect needs to allow for better approaches to be 
    approved.

  Prioritizing offsite mitigation to priority habitat areas, and to the 
    population impacted makes sense, but the whole question of when 
    mitigation is required, to what degree, and even what constitutes 
    mitigation needs a great deal more development. This document is 
    silent on that, which leaves it entirely to field discretion. The 
    currency of mitigation needs to be developed, with credit given for 
    mitigation over and above that required.

  Requiring that sage-grouse habitat objectives are incorporated into 
    reclamation planning is good, but evaluation must be outcome based. 
    Applying good practices is not adequate, industry must continue to 
    manage reclaimed sites until sage-grouse habitat is restored to 
    required levels.

  c) R3--No Comments.

  d) R4--Best Management Practices; I'd like to see a provision that 
    whenever possible everything, including structures traditionally 
    left above ground, such as well trees, will be buried. In some 
    cases it would be necessary to dig pits to get structures below 
    grade. Cost is seemingly the primary issue, but if it is 
    technologically possible, it should be considered. It would be good 
    somewhere to establish a sizable pilot area where non-traditional 
    practices could be implemented and evaluated. Cam Aldridge and I 
    have talked in the past about facilities being totally buried on 
    the Sheffield military training area in Canada, and it seems to 
    work well, without compromising the military mission or raising 
    havoc with the buried facilities.

  e) R5--No Comments.

  f) R6--Alternative B I don't follow the Alternative A and Alternative 
    B? Is one to be deleted? A is better for the species than is B?

    What is Appendix A?

  Reviewer suggests adding: A seasonal restriction will be applied that 
    prohibits surface-disturbing activities during the lekking, nesting 
    and early brood-rearing season in all priority sage-grouse habitat 
    during this period.

   Require unitization? not sure what this is when deemed 
        necessary for proper development? and operation of an area 
        (with strong oversight and monitoring) to minimize adverse 
        impacts to sage-grouse according to the Federal Lease Form, 
        3100-11, sections 4 and 6. I don't understand this one--it 
        seems confusing.

  Under BMPs on page 11: Roads These are all duplicates of those on 
    page 8 and;

  Operations: These are mostly duplicates--why the redundancy? Can't 
    the statements about roads and Operations be numbered and stated 
    once and then later mentioned by number in appropriate sections?

  Page 12: Reclamation Redundant; Locatable misspelled.
Fire and Fuels Management
1) Fuels Management
  a) Rl--No Comments.
  b) R2--Prohibiting Fuels Management treatments in known winter range 
    is too restrictive. There may be situations where the fuels 
    treatment is small enough or in higher precipitation zones with 
    ample forage where treatments will be beneficial (i.e., where 
    winter range is also brood habitat). Similarly, excluding fire in 
    areas with less than 12-inches of annual precipitation is also too 
    restrictive, as size of treatment definitely matters.
  c) R3--

     Do not reduce sagebrush canopy cover to less than 15 
            percent (Connelly et al. 2000, Hagen et al. 2007) unless 
            the fuels management objective requires additional 
            reduction in sagebrush cover to meet strategic protection 
            of priority sage-grouse habitat. Closely evaluate the 
            benefits of the fuel break against the additional loss of 
            sagebrush cover in the EA process. Reviewer comment: In 
            many areas site potential will be below 15 percent, so this 
            number seems a little irrelevant. Why not say the sagebrush 
            will not be reduced below site potential unless required 
            for strategic reasons? There is a need to insert some 
            language about reducing the risk of wildfire and post-fire 
            expansion of invasive species.

     No treatments will be allowed in known winter range. 
            Reviewer comment: Seems a little extreme--what if there is 
            a risk of loss of winter range that might require some 
            treatment?

     Do not use fire to treat sagebrush in less than 12-inch 
            precipitation zones (e.g., Wyoming big sagebrush or other 
            xeric sagebrush species; Connelly et al. 2000, Hagen et al. 
            2007, Beck et al. 2009). Reviewer comment: This sort of 
            blanket statement is bound to create unintended negative 
            consequences. Again, I would suggest referring to site 
            potential. Site potential in a 12" precipitation zone in 
            eastern Wyoming is different from a 12" zone in eastern 
            Oregon. The western port of the sage-grouse range in 
            dominated by a winter precipitation climate, the eastern 
            part of the range has much more summer precipitation. 
            Temperature and thus evaporation potential during the 
            period precipitation comes can have a big impact onsite 
            potential. Along the some lines, north slopes have a very 
            different site potential and set of risk factors than south 
            slopes even in the same precipitation lone.

     Reviewer suggests: It might be better to include a 
            statement to the effect that treatments must be analyzed 
            with regard to the risk of invasive species expansion.

  d) R4--Clarify/define the terms ``native seeds'' and ``non-native 
    seeds''. Does this mean locally collected seeds, the same species 
    of seeds collected from anywhere (BLM has had problems in the past 
    with, for example, sagebrush seed being planted that was collected 
    hundreds of miles away from where it was collected. Not good.), or 
    truly exotic species?

  In the third point, change ``etc.'' to ``or other activities'', and 
    delete the last phrase ``that benefits sage-grouse''. That's the 
    reason it's being done in the first place.

  e) R5--``No treatments will be allowed in known winter range''. Are 
    you going to sit back and have a catastrophic wildfire dictate your 
    outcome? Wouldn't you rather implement a fuels management plan that 
    can reduce the chances of a wildfire taking out an entire mountain 
    range (e.g. Montana's). Or would you rather close the lid to the 
    tool box and take the chance that back to back years of above 
    precipitation occurs that buildup cheatgrass and other fuels and 
    just wait for a dry lightning storm and see another mountain range 
    burn completely. The wildfire storms of 1999 are not that long ago! 
    Again this holds true for PJ encroachment as well.

  Are winter ranges a constant vegetation type? No, so why would you 
    state such an objective? These plant communities are continually 
    changing, no matter how subtle they appear. This type of passive 
    management is helping further degrade critical habitats. Be pro-
    active and vision what the habitat needs will be in 20-25 years 
    down the road and approach the issue in this manner rather than 
    letting outside forces dictate the destructive outcome that is sure 
    to happen by being passive.

  If a wildfire burns a cheatgrass dominated landscape, what is 
    protecting the site from grazing for 2 years going to accomplish, 
    other than the buildup of more cheatgrass biomass? Does someone 
    magically think that the system will restore itself? Where the hell 
    is the evidence of this? Is your management promoting fuel loads? 
    Remember, with each fire season comes a cheatgrass fueled wildfire 
    that destroys more and more unburned sagebrush islands.

  Where is the table or data that suggests the probability of native 
    seeds versus introduced seeds for fuels management or restoration/
    rehabilitation? How do you accomplish your goals and objectives 
    without such information?

  f) R6--Page 15
     Do not reduce sagebrush canopy cover to less than 15 
            percent. Reviewer comment; Why reduce it in the first 
            place? There should be strong evidence to reduce any 
            sagebrush canopy given the great variety of negative things 
            that can happen during and after ``reduction activity'' 
            (Connelly et al. 2000, Hagen et al. 2007) unless the fuels 
            management objective requires additional reduction in 
            sagebrush cover to meet strategic protection of priority 
            sage-grouse habitat. Closely evaluate the benefits of the 
            fuel break against the additional loss of sagebrush cover 
            in the EA process.

  Page 16

     Do not use fire to treat sagebrush in less than 12-inch 
            precipitation zones. Reviewer comment: I'd prefer no use of 
            fire in any sagebrush in a priority sagebrush area (e.g., 
            Wyoming big sagebrush or other xeric sagebrush species; 
            Connelly et al. 2000, Hagen et al. 2007, Beck et al. 2009).

     Monitor and control. Reviewer comment: How is monitoring 
            to be done? And only the Lord knows how to control 
            invasives post-treatment, biologists sure don't invasive 
            vegetation post-treatment. Does anyone really think this 
            will happen on the ground?

3) Emergency Stabilization and Rehabilitation (ES&R)

  a) R1--No Comments.
  b) R2--No Comments.
  c) R3--
     Consider potential changes in climate when proposing post-
            fire seedings using native plants. Selecting native plants 
            adapted to a warmer climate with more variable 
            precipitation should be considered given the longevity of 
            native plants. Reviewer comment: There is no basis for this 
            suggestion. To date there is no research I am aware of 
            showing that plant species are changing their ranges. And 
            the movements are likely to be so slow that managers will 
            be able to adapt without introducing new species (in other 
            words those species will have become part of the system by 
            the time we need to actively consider them in seeding 
            mixes). We have enough trouble establishing the existing 
            native species on most sites. I know Interior is under 
            pressure to ``respond'' to climate change, so if you must, 
            put in a statement to the effect that species mixes will be 
            adjusted as information on changes in species ranges 
            becomes available.

  d) R4--No Comments.

  e) R5--No Comments.

  f) R6--No Comments.
Habitat Restoration
  a) R1--No Comments.
  b) R2--No Comments.
  c) R3--
   Habitat restoration objectives should include sage-grouse 
        habitat parameters as defined by Connelly et al. 2000, Hagen et 
        al. 2007 or if available, appropriate local information. 
        Reviewer comment: (State sage-grouse plans for example?) 
        Meeting these objectives within priority sage-grouse habitat 
        areas would be the highest priority.

   Consider potential changes in climate when proposing 
        restoration projects using native plants. Selecting native 
        plants adapted to a warmer climate with more variable 
        precipitation will be considered given the longevity of native 
        plants. Reviewer comment (bad idea-see above)

  d) R4--No Comments.

  e) R5--No Comments.

  f) R6--No Comments.
Monitoring Strategy
  a) R1--No Comments.
  b) R2--No Comments.
  c) R3--
     Long-term monitoring strategy of sage-grouse and sagebrush 
            will be developed and implemented for adaptive management. 
            Regular updates would reflect changes in distribution in 
            priority habitats once functional habitat is restored and 
            used by sage-grouse.

  I know invasive species can be considered a part of most sections, 
    but given their importance relative to grouse and grouse habitat, 
    it seems odd that the coverage of this issue is so sparse.

  d) R4--Page 17, Sixth point ``Work as an interdisciplinary team . . 
    .'' Again, this is a fundamental tenet for BLM as a management 
    agency. It shouldn't be necessary to remind people to do what their 
    jobs already require. And if it's going to be mentioned under one 
    activity, it should be mentioned in all. A final side note here: 
    Not all that many years ago, Fire Management was an entity unto 
    itself and, in fact, did not always work closely with other 
    disciplines. It may be that mentioning this here harkens back to 
    that time and some folks may want to keep it.

  e) R5--This section needs to be titled Restoration/Rehabilitation 
    since the use of non-native seeds are an option.

  It is very theoretical to suggest using species that are more adapted 
    to warmer or drier climates (assisted succession) in a management 
    plan. Are you suggesting seeding Wyoming big sagebrush in a 
    mountain big sagebrush zone? This approach, which we have worked 
    with for 10+ years, suggests that it works. Do you really want to 
    make management decisions of this magnitude off of a theory?

  This is not restoration, but rather revegetation. There is nothing 
    wrong with testing this theory further, but it should probably be 
    under fuels management, not restoration.

  There is an underlying tone to use native seeds in the argument of 
    ``native''. It would be a mistake to go to a site and try and 
    restore it without understanding the risks of such efforts. You 
    could use needle-and-threadgrass or Thurber's needlegrass in a 
    restoration effort @ $135/lb and not add any value to your outcome 
    because the lack of understanding. It is very difficult for this 
    species to be successfully seeded, but yet we did it under the 
    ``native'' argument. Far too often seed mixes are put together 
    under what looks good on paper or someone's ecological site 
    description, rather than what are the chances we can get this 
    species established and help prevent further degradation! After 
    all, this effort is to protect and enhance sage grouse habitat, 
    right?

  In the effort to restore sagebrush densities, it should be noted that 
    there are levels of big sagebrush which are detrimental to big 
    sagebrush itself. Once the big sagebrush reaches higher percent 
    covers, long-lived perennial grasses will decrease, cheatgrass will 
    then be the void and fire will follow. It always amazes me how many 
    folks miss the point that cheatgrass starts under the shrub, 
    excellent safe-site with litter and moisture, and then mines the 
    site out into the inter-spaces. Sagebrush does not suppress 
    cheatgrass. Sagebrush over-stories should be more defined and 
    managed by the local resource managers specific to the site since 
    it is of ``highest priority''. I truly see the concern because we 
    are not very good at restoring or protecting sagebrush, but sitting 
    back and hoping that the sagebrush community is not destroyed has 
    not worked. We aged big sagebrush communities (both mountain and 
    Wyoming) and found the ages from 20-75 yrs of age. Mountain big 
    sagebrush built small numbers of seed banks but really not enough 
    to sustain itself without some type of outside help. No seed banks 
    were recorded from Wyoming big sagebrush communities. The return of 
    Wyoming big sagebrush on our 28 year old plots is absent, yet the 
    mountain big sagebrush community had various return rates from 15 
    percent cover in 10 years to only 8 percent cover in 15 years at 
    another site. These goals and objectives need to be flexible and 
    more lenient or they will never be achieved for some habitats. The 
    reality is that in many of these habitats we would be ecstatic to 
    have 10 percent sagebrush cover!

  f) R6--No Comments.
Literature Cited

    Endangered first citation misspelled.

    Many citations are not in this document. Assume they are in 
accompanying document.
                                 ______
                                 
           Questions Submitted for the Record to Megan Maxell
   Questions Submitted for the Record from the Committee on Natural 
                               Resources
    Question. Are the policies and procedures in instruction Memorandum 
No. 2012-043 legally binding on the BLM?
    Answer. Instruction Memoranda (IM) are internal operating policies 
for the BLM, and it is my expectation that the BLM will follow them.
    Question. Will States be exempted from the applicability of the 
Instruction Memorandum 2012-043? If yes, please explain the exemption 
process in detail.
    Answer. It is possible for a BLM field office to be ``exempted'' 
from IM 2012-043. The process is outlined in the IM itself, which 
exempts BLM field offices from its effect when a State or local 
conservation mechanism has been developed with the concurrence of the 
Fish and Wildlife Service and the State sage-grouse plan has been 
adopted by the BLM State office through issuance of a state-level IM.
    Question. If the FWS concurs with a State's management plan, will 
the BLM defer to tile FWS in determining whether the State will be 
exempted from the applicability of Instruction Memorandum No. 2012-043, 
and will that plan be treated as a ``preferred alternative'' in the 
NEPA analysis?
    Answer. The ``exemption'' process, including the role of the FWS, 
is addressed in the IM itself and in response to Question 2 above. It 
would be premature to identify a preferred alternative at this point; 
rather, one will be selected at the appropriate stage in the NEPA 
process for the resource management planning effort currently underway 
to address conservation measures to benefit the Greater Sage-Grouse. As 
part of that planning effort, the BLM will consider a State management 
plan in its development of alternatives.
    Question. How will the Department ensure a consistent approach 
between State BLM offices?
    Answer. The Department has established a collaborative structure to 
guide the Greater Sage-Grouse planning effort-including numerous teams 
involving representatives from various Federal and State agencies, 
including each affected Governor's office. For example, the Sage-Grouse 
Task Force is led by Governors Hickenlooper and Mead, the BLM Director, 
the BLM's National Policy and Regional Management Teams, and State 
Planning Teams. The Department believes that this unprecedented level 
of collaboration will ensure a consistent approach among the BLM State 
offices.
    Question. How do the Instruction Memorandums [IM] and National 
Technical Team Report [NTT Report] comply with the multiple-use mandate 
of the Federal Land Policy and Management Act?
    Answer. The IMs do not require any particular action on-the-ground; 
rather, they require the BLM to incorporate certain procedures and 
consider certain management actions during the NEPA process in 
accordance with FLPMA's multiple use mandate. During the applicable 
NEPA process, the BLM will consider a variety of factors, including 
whether a particular measure or combination of measures is appropriate 
in the context of its multiple use mission. Our goal is to develop and 
implement effective Greater Sage-Grouse conservation measures so we can 
maintain the maximum level of management flexibility on the lands we 
manage.
    Question. How does BLM intend to use the NTT Report and IM No. 
2012-044 in the NEPA analysis?
    Answer. As outlined in IM 2012-044, through the land use planning 
and NEPA processes that are currently underway, the BLM will consider, 
in at least one alternative, all of the applicable conservation 
measures in the NTT Report.
    Question. Is BLM relying on IM No. 2012-043 and/or the NTT Report 
to authorize the grazing restrictions, allotment closures, and drought 
management measures they are imposing in Nevada?
    Answer. The BLM refers to all applicable policy and best available 
science in its management decisions. The drought related management 
measures referred in your letter are based on overall drought 
conditions and the impact to overall rangeland health. The drought 
measures in Nevada include voluntary livestock removals and subsequent 
requests for grazing changes, including non-use, in 2013. The requests 
are limited to intact native vegetation and riparian zones. While 
Greater Sage-Grouse habitat, if present, would be considered with the 
best available science, the drought measures are not specific to the 
Greater Sage-Grouse.
    Question. Does the Department intend that the IMs, NTT Report or 
BLM's preliminary mapping efforts will require the conservation of 
sage-grouse to the exclusion of other resource uses, including the 
rights of locators or claims under the Mining Law of 1872, or other 
mining rights pursuant to other laws?
    Answer. The land use planning amendment effort currently underway 
is aimed at implementing conservation measures to benefit the Greater 
Sage-Grouse. Through this process, the BLM hopes to strike the 
appropriate balance of resource uses and resource conservation to 
ensure the short- and long-term sustainability of Greater Sage-Grouse 
habitat and populations in a manner that promotes a healthy economy, 
protects valid existing rights, and provides a promising future for 
both the public and the Greater Sage-Grouse. The BLM will consider 
incorporating appropriate conservation measures into all of its land 
use plans covering occupied Greater Sage-Grouse habitat. The BLM 
believes that no single set of conservation objectives will apply 
across the entire multi-state range, or even within the area of a 
single State. Greater Sage-Grouse conservation efforts need to be 
defined at a local scale and be supported by the best available 
science.
    Question. Have the IMs, NTT Report or the Bureau's preliminary 
mapping effort ever been used to delay, deny, or alter final 
determination on BLM authorizations? Please explain each such instance 
in detail.
    Answer. The BLM is aware of some authorizations that have been 
delayed while our planning process is underway but a comprehensive list 
has not been developed. I have asked the BLM to conduct a field data 
call so we can assemble this detailed information.
    Question. Was the NTT Report document peer reviewed according to 
the Department's Data Quality Act requirements? If yes, please provide 
copies of all peer review documents.
    Answer. The BLM followed the Department's Data Quality Act policy 
and sought a peer review commissioned by the Nevada Department of 
Wildlife Director, Mr. Ken Mayer. Mr. Mayer serves on the National 
Greater Sage-Grouse Planning Strategy National Policy Team. Mr. Mayer 
commissioned an outside review of the conservation measures in a draft 
version of the NTT Report by six scientists. A report of their comments 
is enclosed. A subset of the National Technical Team members met in 
Phoenix from December 6-8, 2011, to address many of these scientists' 
comments and further articulate and document the scientific basis for 
the recommended conservation measures. These were incorporated into the 
final NTT Report.
    Question. How will the BLM incorporate the NTT Report into its 
ongoing Land Use Planning Strategy?
    Answer. As explained in response to Question 6 above, the BLM will 
incorporate the NTT Report into its analysis as outlined in IM 2012-
044.
    Question. Does the Service believe that the NTT Report represents 
the baseline for conserving the species?
    Answer. The NTT Report provides a summary of the best available 
scientific information for the conservation of Sage-Grouse within the 
framework of the BLM's planning process. As such, it is an excellent 
reference. As noted in the NTT Report, in some cases conservation 
measures identified in the Report will need to be modified based on 
local ecological conditions or new information.
                                 ______
                                 
    The Chairman. Thank you very much for your testimony, Ms. 
Maxwell. We will now start the questioning process, and I will 
recognize myself first for 5 minutes.
    It occurs to me, in the number of hearings that we have 
had, where we have had both proponents and opponents of the 
Endangered Species--I shouldn't say ``opponents,'' but people 
have different views of the Endangered Species Act. In 
testimony that we have heard thus far, I have never, never 
heard anybody say that we should totally repeal the Endangered 
Species Act.
    In fact, if there is one common thread that I have heard in 
all these discussions, it centers in two areas. It centers on 
process of implementing the Endangered Species Act, which we 
heard here today, and we hear about the transparency of the 
data used to make these decisions. Those seem to be the areas 
where people have a concern.
    Now, in my State of Washington, we have been impacted, I 
think, greatly by listings of the Endangered Species Act. And 
it is interesting, Dr. Roman, you alluded to the gray wolf as 
being a success story. But let me tell you how stupid it is in 
my State as to how that listing works. In my State of 
Washington, specifically in Okanogan County, on the east side 
of Highway 97 they are delisted. On the west side of Highway 97 
they are not. Now, I know that the wolf is supposed to be a 
very intelligent animal, but I don't think the wolf reads 
highway signs.
    Now, this is the dumb stuff of the implementation. And yet 
we come in front of these committees all the time, and we hear 
about all of the wonderful things that can come from savings 
species. Nobody is arguing about that. I have never heard a 
proponent at any of these hearings talk about the 
implementation from their perspective. It is always from people 
that are trying to improve the act. This is where we are. And 
it disturbs me.
    And as far as the transparency is concerned, there are a 
lot of questions regarding transparency. Mr. Evans, as you 
know, this committee requires public disclosure of Federal 
grants and so forth in contracts that you may have. You listed 
those in your application today. And your organization, the 
Endangered Species Coalition, has received or has finalized 
over $44,000, as I understand, in Federal contracts with the 
U.S. Fish and Wildlife Service, just during the Obama 
administration in the last 3 years. Is that correct?
    Mr. Evans. I don't have the details, but I think it is 
generally correct. And it is to celebrate the 40th anniversary 
of the Endangered Species Act.
    The Chairman. Well, I am just asking about the 
transparency.
    Now, you mentioned in your opening statement that your 
Endangered Species Coalition is made up of a number of 
organizations. I understand that the Center for Biological 
Diversity and the Wild Earth Guardians are part of that, that 
makes up your group. Is that correct?
    Mr. Evans. Correct.
    The Chairman. That is correct. Well, it seems to me those 
two groups were the two groups that entered into this mega-
settlement that I alluded to in my opening statement that has 
caused so much consternation around the country with this mega-
settlement. Would not the fact that your group, of which these 
groups are part of it, getting Federal grants seem to be a 
conflict of interest in this whole process?
    Mr. Evans. It doesn't seem to me, Mr. Chairman, because of 
the way our coalition works. It really is a coalition. Each 
organization--which is members entitled to make its own 
decisions. And, matter of fact, our own board can make its own 
decisions, too. We don't file lawsuits as a coalition.
    For example, if they want to do whatever they want to do 
according to their own internal processes, it really has 
nothing to do with whatever grant we might get from, say, Fish 
and Wildlife Service to help celebrate the 40th anniversary of 
the Endangered----
    The Chairman. OK, well, let me say, then--so you say from 
your--you don't see a conflict with your organization. But 
would you see--potentially see that there is a conflict if a 
organization that was receiving Federal grants brought a 
lawsuit against the Federal Government? Don't you think there 
would be a conflict there?
    Mr. Evans. I guess I don't. I am a lawyer, myself. But I 
don't think it is any more of a conflict than a consulting 
biologist doing work for an agency or a county government and 
having their own opinion about what things might be.
    The Chairman. Well, my time is expiring, and I just want to 
point out that those are the facts that we have seen. And there 
are some--there are some, including this Member--that believes 
that there is potential conflict when you have people on one 
hand receiving taxpayer dollars and, on the other hand, suing 
the Federal Government. There seems to be a distinct conflict. 
This is part of the problem that I see of process, as the 
implementation of the Endangered Species Act.
    My time has expired, and I recognize Mr. Grijalva for 5 
minutes.
    Mr. Grijalva. Thank you very much, Mr. Chairman. And just 
following along with the Chairman's point, Ms. Maxwell, in the 
analysis that you provide us, provided the committee, as an 
independent biologist, consulting biologist, that work was in 
an independent effort on your part, or was it work provided to 
a client?
    Ms. Maxwell. No, it was work provided to a client. I was 
asked to review the NTT Report for Northwest Mining 
Association.
    Mr. Grijalva. OK. I don't see it as a conflict that you can 
get paid by a client that has a particular interest in how ESA 
is implemented, and I don't see a conflict in organizations 
that have an interest in protecting the Endangered Species Act 
or critical habitats being able to use the process to litigate.
    Anyway, Mr. Roman, in your testimony you mentioned that 
protecting endangered species protects our economy. The 
rhetoric coming from people who oppose ESA would lead one to 
believe that keeping species from going extinct is destroying 
our economy. What is that--what are they missing?
    Dr. Roman. Well, thank you. As I had mentioned, it is the 
idea of natural capital and natural infrastructure, that these 
wild areas, including endangered species and the ecosystems 
that they depend on, provide services and benefits to the 
community. So it is not just about costs, it is not going to 
destroy our economy.
    In fact, working in the field of ecological economics, as I 
do, the economy and the ecology are the same thing. I mean the 
economy is part of the broader ecology. We need to work with 
nature in that regard. And we will find lots of benefits, as we 
have when we have protected rivers. You get fisheries, you get 
recreation, you get all kinds of benefits from that protection, 
by building this natural infrastructure. We can really 
protect--also protect our coastlines. Natural infrastructure, 
what we might call horizontal levees, instead of building 
large, concrete structures, are more resilient and more long-
lasting. So that is one of the many ways that we might be able 
to look at it.
    Mr. Grijalva. Yes, when we hear the cost analysis of the 
Endangered Species Act, it is always on the loss side of the 
ledger. And the benefit side, whether it is flood control 
protection, drinking water, economic benefit to communities, in 
terms of visitations, those are never quite--don't have the 
prominence, unfortunately, to what the benefit side of that 
ledger is.
    One more question, Mr. Roman. Indicator species often feel 
the effects of a changing environment way, way ahead of humans. 
And we have seen this play out as earth's climate is warmed. 
Mr. Foley talks in his testimony about the threat of drought 
both to Lesser Prairie Chicken and to the Kansas economy. Do 
you believe we need to heed or ignore the signals that 
endangered species are sending us about how climate change 
influences drought, fire risk, and the productivity, in 
general, of an area?
    Dr. Roman. Absolutely. So, as we have heard today, 
endangered species are often surrogates for their ecosystems. 
When we say that the red cockaded woodpecker is endangered, we 
really mean that long-leaf pine forests are gone. And now, 
endangered species are showing us something temporal, something 
that is changing about the entire world. As many species such 
as the polar bear, which is disappearing in the Arctic, or 
coral reefs, corals are disappearing around the world, they are 
clear warnings that things are changing in the oceans and the 
climate. We need to heed that and to act on it: one, by 
reducing greenhouse gases, but also by mitigating or helping 
them to adapt.
    Mr. Grijalva. Thank you. And a couple things for the 
record. Eighty percent of the litigation, of the lawsuits right 
now filed regarding the Endangered Species Act, are opponents, 
opposed to the implementation or opposed to the Endangered 
Species Act.
    So, as we do the equation about all this litigation is 
killing the economy and keeping the process from moving 
forward, I think it is only fair to point the finger where the 
finger needs to be pointed.
    I also like to point out that the Chairman of the U.S. Farm 
Bureau has sued the Federal Government on behalf of farmers 
representing many of them who, if I am not mistaken, many of 
them--on the Endangered Species Act who receive farm subsidies 
all the time. That is taxpayer's money, as I see it, as well.
    With that, let me yield back. And thank you, Mr. Chairman.
    The Chairman. The time of the gentleman has expired, but I 
thank him for yielding back.
    I understand Mr. Lamborn is going to let Mr. Bishop go 
first, so Mr. Bishop is recognized for 5 minutes.
    Mr. Bishop. Thank you very much. He just wants to get rid 
of me faster.
    I appreciate all the testimony that has been given here. I 
just have to make one comment at the beginning. Any program 
that is passed unanimously by the Senate and signed by Richard 
Nixon has got to be a priori evidence that this is a screwed-up 
program.
    [Laughter.]
    Mr. Bishop. Mr. Albrecht, let me first start with you. You 
mentioned several of the issues that you were facing in Garkane 
Power. And it is good to see you again, Carl. Are the other 
Utah co-ops facing similar situations to Garkane?
    Mr. Albrecht. Yes. There are six co-ops based in Utah. Two 
others have sage grouse issues, and I believe one other one has 
prairie dog issues.
    Mr. Bishop. OK. How much have you actually spent on ESA and 
mitigation in the last 3 years?
    Mr. Albrecht. Well, I just went through and did a 
calculation on legal and environmental work on transmission 
lines for the past 3 years, and I came up with $624,000, which 
amounts to about $54.22 per customer. Those are real dollars. I 
mean these folks in southern Utah don't make a lot of money. 
They are not inside the beltway, so their income is quite low. 
And they are struggling. Ten percent of the land is privately 
owned, and so those farms, they don't make a lot of money, yet 
they are impacted by our regulations. And any amount on the 
power bill is going to be an increase.
    Mr. Bishop. We came up with co-ops in the first place back 
decades ago, because of the additional expense it was for 
electrification in rural areas.
    Let me ask you one last question also about what is 
happening. You gave in your testimony some of the hurdles you 
have to jump to go through things. In your experience, does the 
ESA provide you with flexibility to make common-sense 
decisions, or is it a rigidity that stops you from making 
common-sense decisions?
    Mr. Albrecht. Well, there is very little flexibility.
    Mr. Bishop. That answers it, right there.
    Ms. Maxwell, if I can hit you up on a couple things. NTT 
stands for what?
    Ms. Maxwell. National Technical Team.
    Mr. Bishop. So, is there a conflict here? FLPMA tells us 
that we have to manage these lands for multiple use. That is 
the goal. But NTT has a different goal. Doesn't it put a 
different ecological value above anything else that is there?
    Ms. Maxwell. Yes, that is true. Their primary objective is 
to decrease anthropogenic disturbances, which then makes their 
objective inconsistent with FLPMA, because it puts all 
ecological preferences above other uses.
    Mr. Bishop. All right. I appreciate your references to the 
FOIA request that Governor Otter got. I thought you were too 
kind to Fish and Wildlife in the way you presented it.
    What those internal memos simply told us is that normally 
you would assume people would look at the science, make some 
best guesses, and then come up with a decision. What I think 
those memos told us is the agency was making a decision, then 
trying to find some science to back it up. And then, when they 
couldn't find that, then they filled in the gaps with their 
best guesses, which means we have reversed this entire process 
with this particular agency. And I think those memos that were 
uncovered by Governor Otter are extremely significant at this 
particular time.
    I want to emphasize some of the problems we have with the 
administration that is supposedly trying to work with the 
States, but does not do it. The State of Utah has a wonderful 
sage grouse plan. I think it is even better than Wyoming's. But 
the difference is our BLM has retarded the effort of the State 
to try and implement that plan, where they have worked with 
other States in a different manner. It is frustrating.
    We have a grand penstemon, or whatever it is. It is a 
flower that, ironically, grows over oil shale only. But it can 
only be determined by the bloom. Otherwise, it looks like other 
flowers. Fish and Wildlife has said local governments can come 
up with a mitigation plan if they can identify it by March. The 
unfortunate thing this coming year, the unfortunate thing is 
the bloom doesn't take place until May or June, which means we 
have to come up with a mitigation plan before we can find out 
what the hell the plants are, and where they are. That is the 
kind of problem that this administration is placing on States 
who actually can do the work.
    And I don't even have time to go into the John Gochner 
story, but some day we will----
    The Chairman. Will the gentleman yield?
    Mr. Bishop. I will be happy to yield.
    The Chairman. This sounds very consistent with what I was 
talking about, was the implementation of the plan. I mean every 
time we bring up these sort of things--this is a case of 
implementing a law. I will yield back to the gentleman.
    Mr. Bishop. And I will yield back to you, because my time 
is out.
    The Chairman. I noticed that. Next I recognize Mr. Huffman 
from California.
    Mr. Huffman. Thank you very much, Mr. Chair. Just one quick 
question.
    Dr. Roman, in your testimony I notice that you talked about 
the economic value of species, the charismatic mega-fauna, the 
whales, the manatees, and the eagles. And certainly, we have 
come to appreciate that iconic species like that have a lot of 
economic value, through tourism and other things. But I wonder 
if you could speak a bit about the fact that those charismatic 
iconic species are also part of a bigger ecosystem that depends 
on lesser species.
    And I know that a favorite tactic of critics of the ESA is 
always to pick out some obscure flower or some non-charismatic 
species, and to sort of ridicule it as not being important or 
not being significant. So I guess this question also brings up 
the broader value of biodiversity and functioning ecosystems, 
which clearly were an inherent value in the Endangered Species 
Act, which has been supported for so long with bipartisan 
majorities, and of course, remains very, very popular with the 
people of the United States.
    So, it is a rather open-ended question, but I think you 
understand what I am asking for.
    Dr. Roman. Absolutely. And I chose those species because 
they are familiar. But equally important--perhaps more 
important--are plants. And the primary producers in these 
ecosystems are essential. Nothing is going to exist without 
them. We have managed to--a lot of carnivores, the larger 
animals, have declined more quickly than the smaller ones--we 
thought so, at least in the beginning--because they were 
hunted. That was the main threat to a lot of species until 
about the past 50 years, when habitat became the big issue.
    So, by focusing on habitat, one way to look at it is to 
look at the plant diversity. And you find lots of diversity in 
these areas. And to me, they are equally important to those 
charismatic animals, whether it is a mussel, a plant, or a 
snail. We need to protect all of them. There are spiritual/
moral reasons for that, but there are also very good economic 
reasons and reasons why it is good for our health and well-
being, as well.
    Mr. Huffman. All right. Thank you. I will yield the 
balance----
    The Chairman. Will the gentleman yield to me?
    Mr. Huffman. Certainly, certainly.
    The Chairman. I appreciate the gentleman yielding. And the 
gentleman talked about plants. Let me tell you again, following 
the same line of reasoning that I was using earlier about the 
implementation, and I mentioned specifically the bladderpod in 
the State of Washington. Let me be more specific. It is in the 
county I live in, just north of where I live.
    Now, the listing did not include any input from any local 
farmers or anybody. But it said that if it were to be 
implemented, it would impact private property as well as 
Federal property.
    Now, the farmers were kind of, ``Where did this all come 
from?'' And so they got permission to test the DNA on the 
bladderpod in Franklin County with bladderpods in other parts 
of Washington State and two other States. And they had a 
geneticist or an agronomist from the University of Idaho look 
at that, and they said the DNA is exactly the same in all of 
these areas.
    Now, wouldn't logic say, ``Boy, maybe we ought to have a 
re-look at this?'' Now, this happened about 6 months ago. There 
has been no re-look. Does this not suggest that the process 
someplace here, where everybody is upset about, needs to be 
looked at? So I very much appreciate the gentleman yielding to 
me to make that point, because nobody--as I have mentioned 
earlier; I think you were here when I said that--has said, 
``Eliminate the Endangered Species Act.'' And I will yield back 
to the gentleman, if he wants to continue.
    Mr. Huffman. Well, thank you very much, Mr. Chair, and 
maybe that is an occasion to ask Dr. Roman an additional 
question.
    If the science is wrong on a listing, and that can be 
demonstrated, is there a fix for that, and a remedy for that, 
under the Endangered Species Act?
    Dr. Roman. Absolutely. Species are delisted because of 
taxonomic error.
    Mr. Huffman. OK.
    Dr. Roman. They have been in the past. So there are 
opportunities for that, for them to be revisited, if that is 
the case.
    Mr. Huffman. I am not a plant geneticist, but I do think it 
is important to make the point that if they are correct, your 
constituents are correct, hopefully the system will work, and 
the mechanism will be available to them.
    The Chairman. Well, if the gentleman will yield, since 
there is a little bit of time, I just want to make the point. 
Nobody locally in my home county of Franklin was contacted 
regarding this listing. Nobody was. And then they raise money 
themselves to test the DNA. This was 6 months ago. And still no 
response.
    I mean I am looking to see what is going to happen. I am in 
the air, just like they are, on something that has proven by 
DNA--now, I don't know if DNA is absolutely the best test, but 
it has got to be a pretty good test, it seems to me.
    I thank the gentleman for yielding.
    Mr. Huffman. Thank you, Mr. Chair.
    The Chairman. Next I will recognize Mr. Fleming from 
Louisiana.
    Dr. Fleming. Thank you, Mr. Chairman. First of all, I would 
like to echo the statements of the Chairman that some of our 
panel members argue about the ESA as though there are Members 
here who actually oppose that we have protection for endangered 
species. Nothing could be further from the truth. And we hear 
name-dropping of a Republican President, former President 
Nixon. He signed that into law. And it is true that protection 
of endangered species is popular among the American people.
    What isn't popular is the disruption to people's lives and 
to commerce that is happening through its implementation. So 
that is really what we are here to talk about today, not to 
debate whether or not it should have been signed into law some 
40 years ago.
    I have a question for Mr. Sikes and Ms. Maxwell. In 2007, 
the Fish and Wildlife Service approved guidelines to comply 
with the Information Quality Act. Page two of those guidelines 
state the following: ``The quality of the information that the 
FWS disseminates is always important, but that certain factors 
such as court-ordered deadlines may limit applicability of 
these deadlines.''
    So, my question is this. Is it concerning to you that court 
deadlines, including the mega-settlements, could limit the 
quality of the ESA information FWS disseminates to the public?
    Ms. Maxwell. I think it can, because it facilitates a rush 
to science. And in a lot of instances, that underlying data of 
these reports or studies isn't then made available, not even to 
Fish. So it can be a problem.
    Dr. Fleming. Right. And I heard you say earlier that, often 
times, opinion is substituted for science. And that is 
problematic in a lot of the things that we deal with here, 
where it seems like the facts, the data, is hidden in the 
shadows, and get, instead, opinion, which--of course, opinion 
is often biased, and that is OK. But the important thing are 
the facts. That should be most transparent.
    And Mr. Sikes?
    Mr. Sikes. Yes. I mean I agree that they do--they don't 
provide any information, as far as I can tell from Arkansas' 
experience. I think I said in my comments we didn't know 
anything about the settlement, we didn't know anything about 
the science that was being brought forward, we didn't know--had 
we not participated in this process on this--making comments on 
the critical habitat designation, no one would have ever had 
any idea, really, what was going on in the State of Arkansas.
    As a matter of fact, we missed the first deadline. And it 
was only through good fortune and the work of our delegation 
that we were able to get an extension so that we could do 
something. But there wouldn't have been any information 
provided whatsoever, as far as I could tell.
    Dr. Fleming. Well, then, to follow up on the question, 
wouldn't that undermine the purpose of the information quality 
provisions?
    Mr. Sikes. I would think so.
    Dr. Fleming. OK. Also, Mr. Sikes, Mr. Albrecht, and Mr. 
Foley, many environmental groups have called the Endangered 
Species Act ``99 percent effective.'' How would you 
characterize the law's effectiveness?
    Mr. Sikes. Well, now, I am not an expert on it. Here in the 
last couple of years I have tried to bring myself up to speed. 
But from my perspective, from working with folks from out 
West----
    Dr. Fleming. Just real quickly, because I have to get to 
all three. How would you characterize it?
    Mr. Sikes. Broken, completely.
    Dr. Fleming. OK. Mr. Albrecht?
    Mr. Albrecht. Not very effective in its implementation. We 
have gone too far to one extreme. As is it now, it is affecting 
rural economies, people who have private land they want to 
develop prairie dogs on, they can't. Grazing, from the farmers 
and ranchers. Power line right-of-ways.
    Just to give you an example, in the power business we have 
found that the northern goshawk, which is a species in our 
area, actually uses a power line right-of-way as a feeding 
alley. They can see the mice, the rabbits, whatever, better. 
And so they use those for feeding. It is just too far extreme 
the wrong way. It is affecting commerce, as you said.
    Dr. Fleming. Right. And, real quickly, Mr. Foley?
    Mr. Foley. I would concur with the Chairman, as far as I 
believe that the process is broken and needs work.
    Dr. Fleming. Thank you. I yield back.
    Mrs. Lummis [presiding]. I thank the gentleman. Panel, our 
Chairman has had to leave. Doc Hastings had another commitment. 
My name is Cynthia Lummis. I am from Wyoming. And I would now 
like to recognize the gentleman from Michigan, Mr. Benishek, 
for 5 minutes.
    Dr. Benishek. Thank you, Madam Chair.
    Ms. Maxwell, I find it sort of amazing--I am a doctor, OK? 
So I am familiar with peer review and critical analysis of 
studies. And I am just a little bit concerned about the fact 
that, from what I understand of the hearing and the testimony, 
that many of the scientific analyses--the reasoning is not open 
for review. Could you tell me about that? Because it seems to 
me it should all be on the Internet, we should all be able to 
look it up. Why is this species being made endangered? What is 
the data that indicate that it needs to be done?
    Ms. Maxwell. Well----
    Dr. Benishek. Can you kind of go through that process a 
little bit with me?
    Ms. Maxwell. Well, some of the studies are just independent 
researchers, or researchers with the university, not 
necessarily with the Federal agencies. And they will withhold 
the data for proprietary reasons.
    Dr. Benishek. So it is not published, then. This is data 
that is not published.
    Ms. Maxwell. That is correct.
    Dr. Benishek. And----
    Ms. Maxwell. So, like, the raw data.
    Dr. Benishek. People don't get a chance to see what the 
data is that these decisions are being made on?
    Ms. Maxwell. Sometimes they don't. I know for the sage 
grouse specifically, there is one study that is heavily relied 
on, as far as showing population decline. And the researcher 
involved with this modeling has refused to release the 
information to other researchers, to peer review, to Fish and 
Wildlife. He----
    Dr. Benishek. How can data like that be used?
    Ms. Maxwell. It shouldn't.
    Dr. Benishek. Is this a common practice? I mean, to me, I 
am very wary of data--I mean I would do operations in my 
practice, and I certainly don't change the operation that I do 
based on somebody's report, saying that there is a better 
operation, without it being copied and analyzed many times, 
because you don't want to do something somebody says is great, 
versus something you have been doing for 20 years. Do you 
understand what I mean?
    And it is very much concerning to me that many of the 
decisions that we make in the--basically all through government 
research, is more political than it is science. Do you find 
that same skepticism that I have?
    Ms. Maxwell. It certainly seems that way with the sage 
grouse. A lot of the underlying data hasn't been made 
available, or Fish hasn't even requested it. And it is 
necessary, part of the scientific method, to be able to look at 
these, this data, and try to prove it and disprove it.
    Mr. Albrecht. Congressman, if I could just add to what she 
said, in Utah those maps of those occupied areas and 
conservation areas, they are very closely held by the DWR and 
the Fish and Wildlife Service, and they are kind of considered 
confidential. They are only willing to share those for specific 
projects.
    In other words, if we had a project for a new power line, 
they would share that with us. But----
    Dr. Benishek. Why is it confidential? I don't understand.
    Mr. Albrecht. I don't know. I have been trying to figure 
that out.
    Dr. Benishek. What would be the proprietary value of it? I 
mean how would somebody lose the value if this information was 
made public? I mean they say the reason is because it is 
proprietary, right? It must have some value. So what is the 
value of keeping this information secret?
    Mr. Albrecht. [No response.]
    Dr. Benishek. You don't understand it. That is why I was 
hoping to ask Mr. Roman. Don't you think that the information 
and the data that we use should be open to analysis?
    Dr. Roman. Usually it is. I don't know----
    Dr. Benishek. Can you think of any reason why this 
information would be proprietary, and people wouldn't want to 
release it?
    Dr. Roman. In this particular case, I don't know, yes.
    Dr. Benishek. OK. Thank you very much.
    Mrs. Lummis. I thank the gentleman from Michigan. The Chair 
now recognizes the gentleman from Colorado, Mr. Lamborn, for 5 
minutes.
    Mr. Lamborn. OK. Thank you, Madam Chairman. Dr. Roman, let 
me ask you more of a theoretical, philosophical question. If 
there were an animal--and I am going to say polar bear, but any 
animal--that were rare in Alaska, and their population was 
declining, but across the national boundary in Canada it was 
increasing and thriving in population, would that Alaska 
population need to be protected, in your opinion, under the 
Endangered Species Act?
    Dr. Roman. Well, this being completely hypothetical, the 
law would say if it is considered a distinct population 
segment. So if there was genetic evidence, there was some 
evidence that it was separate, then absolutely, it should be 
protected.
    Mr. Lamborn. But if it was identical?
    Dr. Roman. If it was identical to the others, I can't 
answer that hypothetical question. But----
    Mr. Lamborn. Why would it need to be protected in Alaska, 
if the Canadian population allowed for the propagation of the 
genetic heritage of that animal?
    Dr. Roman. Because part of the historic range, I would say, 
in this hypothetical case.
    Mr. Lamborn. OK. Well, I don't--OK.
    Dr. Roman. It is hard for me to answer that without having 
some details. I would be happy to consider it----
    Mr. Lamborn. Well, you are a professor. I thought you would 
know these things.
    OK, let me ask you another sort of theoretical question. If 
an animal is released into the wild--and, for instance, 
Colorado has a situation where they have been raising fish in 
captivity that are endangered or threatened, and releasing them 
into the Colorado River. Is there any problem with that, in 
your opinion, even if the habitat issues would be something you 
would--you would wish for habitat to be restored for that fish, 
but there is enough fish being released from captivity into the 
wild to keep that species going, you know, and thriving?
    Dr. Roman. Well, the law is clear that you protect the 
endangered species and the ecosystems that they depend on. So, 
if it is just coming from fishery, I suspect not. In other 
words, coming from a hatchery. But, again, it is hard to--I am 
not an expert in this area. And I may be a professor, but I 
don't necessarily have the answers to some of these questions.
    Mr. Lamborn. OK. That is interesting, because I do have a 
suspicion that some people in the environmental community are 
really more after grabbing the habitat, and they really don't 
care about the species. They want the land tied up and 
preserved for their reasons.
    One more question, and then I have a question for Megan. 
But I am not a bird expert, but I know among birdwatchers there 
is a division, a controversy at times, between what is called 
the lumpers and the splitters, people that lump species or 
subspecies together into one, and those that consider these 
populations actually separate.
    Is the science always absolutely crystal clear, or is there 
sometimes subjectivity, or even arbitrariness in the scientific 
decisions that are made as to where one species leaves off and 
another one begins?
    Dr. Roman. Well, the law, again, is clear here. It should 
be made by the best available science. So you bring in experts 
in that field, and they make that decision. It should not be 
arbitrary. It should be transparent, and it should be a 
decision made by consensus among scientists and experts.
    Mr. Lamborn. OK. And, Megan, I am going to switch to you, 
now. He mentioned transparency, which I agree, is a vital 
issue. Is the data that the Fish and Wildlife Service or NMFS 
uses always transparent, or is it sometimes held close by that 
agency?
    Ms. Maxwell. I think that Fish, the studies that they are 
relying on, at least when it comes to sage grouse, are 
generally available. But the underlying data isn't. So I don't 
know that I would say Fish is necessarily holding it back. It 
might be Fish in some instances. It might be the researcher in 
others.
    Mr. Lamborn. Well, in any cases. I don't mean just Fish, 
but in any cases.
    Ms. Maxwell. Oh.
    Mr. Lamborn. I mean I have heard that--and I am, actually, 
pretty much aware that they do hold that information sometimes. 
You mentioned data is sometimes held. That leads to a suspicion 
on my part that sometimes they don't want to be second-guessed.
    Ms. Maxwell. I----
    Mr. Lamborn. That is why they are not releasing it.
    Ms. Maxwell. I agree.
    Mr. Lamborn. OK.
    Ms. Maxwell. Yes.
    Mr. Lamborn. Thank you. And then, also in Colorado, a 
Washington Times article recently quoted Governor Hickenlooper 
as saying that slanted advice is being given by the Fish and 
Wildlife staff on whether the Gunnison sage grouse should be 
listed. Do you agree or disagree with that statement of the 
Governor's?
    Ms. Maxwell. Well, I agree that Fish relies on certain 
scientists over others, even though they are experts in a 
field. They have preferences. And those preferences can, in 
some cases, lead to slanted opinions and observations.
    Mr. Lamborn. Thank you.
    Mrs. Lummis. I thank the gentleman. And now, with my 
apologies to my neighbor to the North, the gentleman from 
Montana, for taking my neighbor to the South out of order--it 
was not meant as a slight or preference; I love both of my 
neighboring States--I now recognize the gentleman from Montana 
for 5 minutes, Mr. Daines.
    Mr. Daines. Thank you, Madam Chairman. A question for Dr. 
Roman. It was mentioned in your testimony that the ESA is one 
of the strongest pieces of environmental legislation in the 
country. I have been in business for 20 years, looking at 
results. I think we have listed over 2,000 species, and 
recovery of around 1 percent. So how can we say that is the 
strongest environmental legislation in the country, with, 
frankly, some pretty poor results?
    Dr. Roman. Well, it depends on how you look at it. In that 
case, there has been some very good recovery efforts made on 
several species that I discussed, such as the gray whale and 
the bald eagle and the gray wolf. Many other species have been 
saved from extinction. I can't give you the exact numbers, but 
I will give you a ballpark estimate.
    Approximately 35 species went extinct since the ESA was 
passed. And the expectation was, the estimate was, without the 
ESA, if we hadn't had those protections, we would have lost 
several hundred. Again, I don't have the exact numbers in hand, 
but I would be happy to give it to you. To me, that is a good 
indication that we are having success. We are protecting both 
species and their habitats.
    Mr. Daines. My experience, too, as a fifth-generation 
Montanan, is the ESA is about listing species more so than it 
is actually about recovery. We used the example of the wolf. It 
took an act of Congress to get that removed, versus objective, 
sound science. I am a chemical engineer by degree. I like to 
look at numbers, and so forth, and have clear goals. And it 
seems like the goal posts tend to keep moving here.
    And I am going to pivot over here and talk about grizzly 
bears for a moment, as well. We love grizzly bears in Montana. 
Their populations are expanding, since they have been listed. 
But I also am aware of the fact that we have schools in Montana 
that are protected by high fences to protect the kids from the 
grizzly bears, as the bears now are clearly starting to thrive 
in my home State of Montana.
    In pivoting over here to talk about the Kootenai National 
Forest, and we are just going to go back to Ms. Maxwell here, 
and we are going to talk about the sage grouse in a minute. 
But, as background, in Montana the ESA affects our daily lives. 
In fact, there are, in this mega-settlement discussion, the 
topic of today, there are seven species under review today. The 
Greater sage grouse, the wolverine and the Canadian lynx are a 
few. But the grizzly bear has been listed as threatened for 
decades. I remember backpacking as a kid. You wouldn't see a 
grizzly bear in the back country. Today, when you are out in 
the back country, you carry bear spray usually on your left hip 
and your right hip, because we have got a lot of grizzly bears.
    Moreover, Montana has been managing their lives around this 
species, and its population, as I mentioned, is becoming 
actually dangerous to towns nearby grizzly bear habitat. Just 
last month the record of decision for the final EIS of the 
Kootenai Forest plan was released. Now, the Kootenai is a 
beautiful forest, 2.2 million acres. And the community is 
there. They love to fish, they love to hunt, they love to 
recreate around this forest. This area, though, used to be 
bustling with a logging industry, and it is now struggling with 
double-digit unemployment. I met with a couple for dinner here 
recently, and they said, ``We describe our area, the State, now 
as 'poverty with a view','' and that is what it has become.
    The Forest Service decided to allow timber harvesting on 
only 793,000 acres. In 1987, the plan had over a million acres 
suitable for harvest, the same time the grizzly bears are 
recovering.
    Now, Ms. Maxwell, I am going to pivot over now to sage 
grouse, because it is relevant. Hundreds of thousands of acres 
across the West would be severely impacted under a potential 
listing of the sage grouse as an endangered species, in spite 
of outstanding local efforts to conserve the species which we 
hunt today in Montana--it is a two-bird bag limit--reflect the 
highest level of scientific integrity. In your view, how does 
the BLM's NTT Report fail to meet the standard of sound 
science? Because, in my view, it is a lot of political science 
versus sound science. And how does this report undermine 
legitimate scientific study being conducted at the local level?
    Ms. Maxwell. Well, I will start with how it is undermining 
local activities. Specifically, it really doesn't take into 
account State plans, individual conservation plans, like CCAs, 
or local working group plans, and how those are working. It is 
assuming that they are getting no protection. And so they have 
to have all this protection only from BLM, in order to have the 
sage grouse survive and persist.
    And, for instance, in Wyoming, Fish and Wildlife Service 
actually said that the various Governor EOs have the potential 
to ameliorate threats to the bird. And BLM totally failed to 
recognize this, which is a big deal. You need to take those 
into account.
    I am sorry, what was your other question?
    Mr. Daines. Well, it is just getting back to the sound 
science here, and the recovery.
    Ms. Maxwell. OK.
    Mr. Daines. Right, on the----
    Ms. Maxwell. Well, they are relying on studies that have 
had a lot of criticism, ranging from invalid conclusions to the 
source--the conservation measures that are being proposed, the 
sources being listed don't even reference the conservation 
measure restriction as necessary. It wasn't a part of the 
study. The study was on population dynamics, and then they are 
proposing a one disturbance per acre threshold. And it just 
doesn't support the assertion at all.
    Mr. Daines. All right, thank you----
    Mrs. Lummis. The gentleman's time has expired.
    Mr. Daines. Thank you.
    Mrs. Lummis. And I--the Chair would comment that, as the 
gentleman from Montana indicated, it took acts of Congress to 
accomplish delisting of wolves, and they were listed under the 
non-essential experimental population component of the 
Endangered Species Act. So they were not even listed as 
endangered. They were non-essential and experimental. And yet, 
even then, we had to use acts of Congress to get them delisted 
after objectives had long since been met. And I thank the 
gentleman for his questions.
    The Chair now recognizes the gentleman from Colorado, Mr. 
Tipton, for 5 minutes.
    Mr. Tipton. Thank you, Madam Chair, and thank the panel for 
taking the time to be able to be here. This is an important 
issue for all Western States, very important, I know, for our 
district, in Colorado.
    And, Ms. Maxwell, you are a Coloradoan, great to be able to 
have another one here. You are pretty familiar with the 
topography that we have unique to the State of Colorado, and 
the ecology in the different regions. Very diverse.
    Ms. Maxwell. Very.
    Mr. Tipton. You have spoken to this, but to be able to get 
it site-specific in Colorado, has the BLM, when they are 
designating critical habitat, taken in good, sound science in 
terms of designating areas of critical habitat for the greater 
sage grouse and Gunnison sage grouse?
    Ms. Maxwell. Well, as far as I know, they are relying on 
the State's maps for the priority areas, and then they have 
expanded the area to include corridors, at least as far as it 
is in the RMP revision that is going on up there. And then they 
have expanded it, and there is not a whole lot of science or 
research out there on these migratory corridors, and whether 
they are even present.
    Mr. Tipton. Yes. You are a biologist, and I appreciated, 
actually, in your testimony you seemed to be able to have a 
passion for having actual science. You want to be able to have 
it peer reviewed, to be able to have it analyzed, to be able to 
make sure that we are actually trying to do the right thing. 
But you seem to be indicating that the BLM actually is doing a 
fairly sloppy job, when it comes to designating these areas.
    Ms. Maxwell. Well, the critical habitat areas, a lot of it 
is correlated with the State's information. But the 
conservation measures, and the one-size-fits-all approach they 
are taking is what is going to really be damaging, because, as 
you said, the ecology of just Colorado alone is huge, let alone 
across 11 States and the----
    Mr. Tipton. Now, do you see a lot of other inconsistencies 
between the different agencies that are involved when we are 
talking about the Gunnison sage grouse, greater sage grouse? 
Are there inconsistencies in terms of the policies that they 
have for trying to be able to preserve habitat and to be able 
to reinvigorate the species?
    Ms. Maxwell. Between the State and BLM?
    Mr. Tipton. Right.
    Ms. Maxwell. Yes. The States generally have better data--
from a local level--and BLM is trying to go in and require 3 
percent disturbance thresholds, which may not be appropriate at 
that local level. And the State and the local working groups 
are the ones that have that information.
    Mr. Tipton. Now, is it your experience, have you seen--if 
we go into Colorado, we look at the MOU that was put through in 
southwest Colorado, southeast Utah. I believe we have 11 
different counties that are all trying to be able to put 
together a program of conservation, to be able to do the right 
thing. This is not in dispute.
    Are you seeing that the Federal Government is ignoring 
these policies, I believe it has been something like $40 
million in public-private sector funds have been addressed, 
that it is just more about trying to drive an agenda, as 
opposed to actually reinvigorate the species?
    Ms. Maxwell. As it is reflected in the NTT, and as I have 
seen in the DRMP's, they haven't been taking into account the 
local level MOUs and plans.
    Mr. Tipton. They haven't taken into account the local 
levels and the local plans that are going on.
    Ms. Maxwell. Yes.
    Mr. Tipton. Yes. And we have actually seen--I have been 
onsite. We are seeing remarkable efforts that are being made at 
the State and the local levels. Do you think actually, when we 
are getting ready to make policy that comes out of Washington, 
DC--would it be useful maybe for Secretary Jewell--we have 
extended the invitation in this committee--for her to be able 
to come out to Colorado, out to Wyoming, Montana, to be able to 
come onsite and actually visit, and to be able to see what our 
Governors, our State legislatures, our local farmers and 
ranchers are doing, rather than a one-size-fits-all program out 
of Washington?
    Ms. Maxwell. I think that would be very useful for her to 
see the differences and what is going on out there.
    Mr. Tipton. I don't know if they are listening in today, 
but we will extend that invitation once again. And I know the 
Governor of Colorado has extended an invitation, as well. And I 
would love to be able to get them over into Utah, because there 
are certainly a lot of challenges.
    I think one thing that concerns me, as well, is the short 
shrift that is being given on the impact of these rules and 
regulations on private property, impacting real lives. We have 
a report that came out from the Western Governors Association, 
saying it will have dramatic negative impacts with some of this 
designation, economically, the people in my region that are 
struggling to be able to provide for their families.
    Is there any science--any concern for that one other part 
of the environment, the humans that actually live there?
    Ms. Maxwell. No. The NTT Report doesn't take into account 
impacts to humans. Its only concern is the sage grouse and 
protecting sage grouse at, really, any cost.
    Mr. Tipton. And I have got to tell you I have got some 
families that are having a tough time making ends meet right 
now, and they are seeing their livelihoods being threatened by 
some of these policies that are not being backed up by sound 
science, and it is going to hurt their prospects for their 
future, as well.
    So I see my time has expired. Thank you, Madam Chair.
    Mrs. Lummis. I thank the gentleman from Colorado. The Chair 
now recognizes the return of our Ranking Member, and I 
recognize him for 5 minutes, the gentleman from Oregon, Mr. 
DeFazio.
    Mr. DeFazio. I thank the Chair. I was trying to defend U.S. 
interests in the Aviation Committee, but now I am back. Thank 
you.
    I guess when I spoke at the beginning I was saying how we 
need to move toward dealing with multiple species in innovative 
ways. And although I am hearing complaints about it, it seems 
to me--and I will direct it first to Mr. Evans, and then to one 
of the other panel members--that this multi-State agreement on 
the lesser prairie chicken is kind of in that model.
    Isn't it, Mr. Evans? Don't you think that shows some 
fairly--a good outcome?
    Mr. Evans. Well, I don't know the details of that one, Mr. 
Ranking Member, but I do know that the act is very flexible, 
and wants people to get together, shareholders and 
stakeholders, and do that. I have been listening to all the 
testimony from everybody here. It is very, very interesting. 
Because there is one thought that runs through my mind all the 
time. We have starved the Fish and Wildlife Service from doing 
its job under the Endangered Species Act.
    It is a very straightforward regulatory process of sending 
out notice, trying to involve everybody, holding meetings. They 
may not even have enough money to hire more than one scientist 
at a time to review things. They do it, and they do the best 
job they can under best available science. What if they had all 
the money they were funded, even 4 or 5 years ago? We could 
have a much more comprehensive process, perhaps, that people 
wouldn't be so concerned about, because they would do all these 
things.
    I think they are doing them anyhow, as far as I know, but 
they could do it even more so, with this. The act does 
encourage these things, does want people to be consulted, and 
work things out together. And the prairie chicken probably is a 
very good example of that. I don't know the details. From what 
I have heard of the sage grouse issue, that is another very 
good example. This is what we would like.
    And so, I think it is there, it just needs to get better 
funding somehow, we hope, before it is too late.
    Mr. DeFazio. Well, it is sort of like a habitat 
conservation plan, but it is different. It is under a special 
4(d) rule.
    And, Mr. Foley, you expressed some concerns about 
agriculture in Kansas. But my understanding that this 4(d) rule 
exempts row-crop agriculture and take, due to normal 
agricultural activities. So wouldn't this actually alleviate or 
address your concerns? And isn't this a good agreement? It 
seems like this worked pretty well.
    Mr. Foley. Well, this plan, as far as the multi-State plan, 
was originated and built with the impetus of a voluntary plan, 
in lieu of a listing. It has definitely components for 75 
percent of habitat, basically an opportunity to acquire 
different areas for habitat of short or mid-term contracts, 25 
percent long-term contracts--it has a lot of components in it.
    Within that plan--there are other plans that are out there, 
as well. Those burdens--we definitely support--Wildlife and 
Parks has been in that plan. We think it is a tool.
    However, those voluntary measures aren't voluntary if your 
carrot and your stick is so short, and your carrot that is 
hanging there, they can see the huge axe behind your back. If 
it is followed up with a subsequential listing of a species, 
will you get the volunteers to participate to make the plan 
work? That is our concern. And when you have all these people 
get together to work and say, ``We can solve this problem, we 
can do this, look at this plan, this is what we support and we 
push forward, let us do this in lieu of this''----
    Mr. DeFazio. But----
    Mr. Foley [continuing]. It is so difficult----
    Mr. DeFazio [continuing]. If I could, reclaiming my time, I 
am reading the documents here. And it says, even if they go on 
to listing, they can't preclude something from being listed if 
it still meets the criteria for listing. But what they are 
doing is mitigating the impacts of any listing ahead of time, 
because they would still exempt take incidental to landowner 
participation in the initiative that has been adopted.
    So, it was developed cooperatively, as a voluntary plan. 
But it will protect people if it goes on to a listing. I mean 
what would you do, have nothing in place, and then wait for 
them to mandate rules regarding take? I mean I have been 
through that in the Northwest with forestry. You don't want to 
go through that.
    Mr. Foley. We believe in voluntary, incentive-based 
programs. And we have been in conservation--I have been, my 
entire career of 25 years. Whether it is any natural 
resources--and we are looking for tools. We want the 
opportunity for tools to be successful. And regardless of that 
position, that was the intent. And when I am discussing these 
points, I am discussing it for the ability or the opportunity 
to succeed.
    And with addressing those success factors, there is more 
than row crop agriculture in agriculture, whether it is 
agribusiness--there are so many different venues, whether it is 
development of grain bins, development of all of these 
different practices, those are all--will they be covered under 
the 4(d) rule? That is subject to interpretation. No, in my 
opinion.
    So, these other things that cost a lot of money in this--
even these voluntary strategies, that is the issue that we are 
talking about, just from the agricultural perspective, not 
talking about the wind, oil, gas.
    Mr. DeFazio. OK, thank you. My time has expired. Thank you.
    Mrs. Lummis. I thank the gentleman. The Chair now 
recognizes herself for 5 minutes.
    I would like to return to a line of questioning that was 
begun by Mr. Tipton from Colorado. My question is for Ms. 
Maxwell.
    You responded to a question by Mr. Tipton to say that the 
NTT Report does assume that people are the primary threat to 
the sage grouse. So does the report consider how human impacts 
can be minimized or mitigated?
    Ms. Maxwell. It doesn't take into account minimization 
efforts or mitigation measures. It proposes restrictions. It 
does have BMPs that it offers to be included in whatever 
permitting process might be going on, but some of those aren't 
even achievable BMPs.
    Mrs. Lummis. If the BLM chooses to conserve the sage grouse 
through the NTT, what is the end result for both species and 
people? And can we do better by embracing plans like Wyoming's 
plan? Or is the NTT the sort of top-down, one-size-fits-all 
approach, is it better?
    Ms. Maxwell. I think that if the NTT were to be implemented 
across the entire range, it would cause major disasters, 
especially in areas where the threat of fire and invasive 
species is prominent, because it is focusing its efforts on 
decreasing the threats of human disturbances, when that is not 
the threat. So, if you are not going to mitigate or minimize 
the actual threat, you are only hurting the species.
    Mrs. Lummis. Did the NTT address fire and invasive species?
    Ms. Maxwell. It has fire and invasive species in a 
subsection. However, the way it deals with it is not as--it 
deals with it in more of a passive management way, and it puts, 
actually, sage grouse protection above that of humans. It says 
on high fire season days, or days where they think there might 
be some more fire, they would move fire resources to the sage 
grouse habitat, which would mean you are moving it away from 
structures and human developments.
    Mrs. Lummis. Thank you. Mr. Foley, question for you. I want 
to add my echo to those of the Chairman, Mr. Hastings, when he 
started this meeting, and others who have spoken, that I 
support the Endangered Species Act. I am concerned about the 
manner in which it has been implemented and litigated. And the 
litigation is driving its management and implementation, rather 
than public policy and science.
    So, I would like to hear from you about what would be a 
better way to deal with the Federal hammers, like litigation 
and listing deadlines, to create boots-on-the-ground 
conservation?
    Say I am somebody who likes flowers better than flowery 
language, and I really do want to conserve an endangered 
flower. What would be a better way to do that?
    Mr. Foley. Thank you, Madam Chair. I believe a better way--
or getting the toolbox that we have--and let's just take the 
conservation reserve program under the Farm Service Agency, for 
example. There are other Federal agencies here that have tools. 
Incentive it, prioritize it under our existing acreage caps. We 
can go in there, place the rank, the priority high enough, 
raise the incentive rates high enough within these types of 
conservation programs. Just re-prioritize and direct these 
areas where we don't have that regulatory hammer--continue the 
participation, deal with those enrollments, deal with other 
issues such as drought, where we have not only had reduction in 
all--whether it is pheasants, quail, all of our upland game, 
whether it is greater or lesser prairie chickens----
    Mrs. Lummis. Mr. Foley, I want to sneak another question in 
before I run out of time----
    Mr. Foley. OK.
    Mrs. Lummis [continuing]. For Mr. Sikes.
    Should State and local governments have input before the 
Federal Government signs court settlement agreements that drive 
ESA policy?
    Mr. Sikes. Absolutely. We are living through this one right 
now, where we had no idea what was going on, had no input 
whatsoever. And it is just suddenly forced down our throats.
    And could I make one other point?
    Mrs. Lummis. Quickly.
    Mr. Sikes. Very quickly. On the programs that you can do at 
home, we put together an unpaved roads working group in 
Arkansas before any of this stuff really went into effect, 
tried to mitigate the damages of sedimentation caused by 
unpaved roads, because we understand that is the majority of 
sedimentation for our aquatic species that are under threat, 
and that is State, Federal, local, public, private. We have 
gotten some money to do a couple of demonstration projects, and 
we have gone back to our legislature, and we expect to get a 
larger pilot program going. So we are not just focusing on 
complaining about litigation, we are actually trying to do 
something about it.
    Mrs. Lummis. I thank the panel. My time has expired. And I 
yield to the gentleman from California, Mr. McClintock.
    Mr. McClintock. Thank you, Madam Chairman. This first 
question will be for Mr. Sikes and Mr. Albrecht and Ms. 
Maxwell, all of whom seem to have some practical experience 
with this. The U.S. Fish and Wildlife Service is proposing to 
declare about 2 million acres in the Sierra Nevada Mountains as 
a critical habitat for the Sierra yellow-legged frog and the 
Yosemite toad. That is pretty much the entire footprint of the 
Sierra Nevada Mountains.
    Now, we are told the designation was going to have no 
impact on private property owners, it will only have a 
negligible impact on the public's access to the public's land. 
Mr. Sikes, is that true?
    Mr. Sikes. That is not my understanding. Certainly not how 
the litigation goes with the designation of critical habitat.
    Mr. McClintock. Mr. Albrecht, is that true?
    Mr. Albrecht. Not to my knowledge.
    Mr. McClintock. Ms. Maxwell?
    Ms. Maxwell. I think designating that large of an area will 
definitely have impacts.
    Mr. McClintock. OK. Well, Mr. Sikes, what should I tell 
private property owners to expect if this designation is 
imposed?
    Mr. Sikes. I think you could tell them they have probably 
got a bulls eye drawn on them.
    Mr. McClintock. What does that mean, exactly, in----
    Mr. Sikes. Well----
    Mr. McClintock [continuing]. Terms?
    Mr. Sikes [continuing]. I think what they can expect is--I 
will give you an example of one of the bad effects of it. 
Because the ESA provides for private right of action, we have 
actually got two property owners in a critical habitat area 
just above Little Rock that are suing each other, and have 
brought in the Fish and Wildlife Service, because one property 
owner is trying to outspend another one to force him to sell 
him his property. And one property owner owns the property 
above him and below him, so he is trying to get that property 
in the middle. And he turned him in for doing some dirt work on 
his property that he said would impact the yellowcheek darter. 
So----
    Mr. McClintock. But if the designation has no impact on 
private property, what is the beef?
    Mr. Sikes. I mean there you have it. I mean it does have 
impact on private property.
    Mr. McClintock. Mr. Albrecht, what can you advise me to 
tell these folks what to expect?
    Mr. Albrecht. Well, I think you need to tell them that if 
the trees are infected with the western pine beetle, it might 
be good to cut some of them for fire protection and protect 
their properties.
    This is the problem with the whole ESA. We don't sit down 
and look at all the impacts across the board. We need to bring 
some common sense into it. Yes, maybe they can clear some 
property for this frog. But maybe they can also do some good 
for the property owners, if there is some beetle-killed timber 
in the area.
    Mr. McClintock. Well, again, this is 2 million acres.
    Mr. Albrecht. That seems a little extreme.
    Mr. McClintock. Well, yes.
    [Laughter.]
    Mr. McClintock. By the way, what can you tell us to expect, 
as far as the impact on the public's access to the public's 
land? This is an area that desperately depends upon tourism and 
public visitors coming to the area to recreate.
    Mr. Albrecht. Look from a distance.
    Mr. McClintock. Basically it will be look, but don't touch?
    Mr. Albrecht. Yes.
    Mr. McClintock. Well, that doesn't sound like a lot of fun. 
I am afraid we might not have the kind of tourism that we once 
had under that kind of----
    Mr. Albrecht. The older people won't have access, the 
younger ones that can hike in will.
    Mr. McClintock. Ms. Maxwell, anything to add?
    Ms. Maxwell. No, I agree with Mr. Albrecht.
    Mr. McClintock. For you, we have heard many examples in 
this committee of politically driven junk science that is 
masquerading under the phrase ``best available science,'' and I 
mean stunning gaps in data that--anything that is contrary to 
predetermined policy outcomes seems to be omitted, quite 
deliberately, from these studies. There have been basic math 
errors.
    In your written testimony you mentioned a number of 
examples: invalid assumptions, mischaracterization, or 
misrepresentation of sources, omission of existing programs 
that benefit the sage grouse, personal opinion substituted in 
place of science. Is this problem isolated, or are we seeing it 
systemically throughout the system?
    Ms. Maxwell. Well, my expertise, I guess, is in sage grouse 
and the NTT and what is going on there. But I guess I wouldn't 
be surprised if it was going on elsewhere, because it seems to 
be a management problem.
    Mr. McClintock. Are we making policy based on pre-
determined outcomes?
    Ms. Maxwell. On the sage grouse, definitely.
    Mr. McClintock. And, if that is the case, then how can we 
trust the validity of any of these designations?
    Ms. Maxwell. Exactly.
    Mr. McClintock. On hatchery issues, I think it was Mr. 
Roman mentioned the great success of breeding programs for 
eagles, for example. Yet captive breeding isn't allowed to be 
included in many of these decisions involving endangered 
species, despite the fact it is often infinitely cheaper and 
more effective than other measures that can end up being 
ordered.
    On the Klamath, in my old district, we had a situation 
where they are pushing to tear down four perfectly good hydro-
electric dams because of what they describe as a catastrophic 
decline in salmon population on the Klamath. I asked them, 
well, why doesn't somebody build a fish hatchery, and we were 
told, well, as a matter of fact, there is a fish hatchery at 
the Iron Gate Dam that produces 5 million salmon smolts a year, 
17,000 return annually as fully grown adults to spawn. The 
problem is, they don't allow us to count them in any of the 
population counts for ESA. And then, to add insult to insanity, 
when they tear down the dams, the fish hatchery goes with it.
    Wouldn't it be more practical to allow captive breeding 
programs in all cases involving the ESA to not only mitigate 
the damage, but also use the product of these breeding programs 
to assess whether these species are still endangered, Ms. 
Maxwell?
    Mrs. Lummis. I ask the answer to be brief.
    Ms. Maxwell. OK. I think that allowing breeding as part of 
a program for ESA would be great.
    Mr. McClintock. Thank you.
    Mrs. Lummis. I thank the gentleman from California, and now 
recognize another of our fine gentlemen from California, Mr. 
LaMalfa, for 5 minutes.
    Mr. LaMalfa. Thank you, Madam Chairman. Following on Mr. 
McClintock's question and statement there--we share much of 
that eastern side of California, Sierra Nevada area, so the 
frog and toad designation, the dam removal, those area issues 
that we have both been intimately involved with over our time.
    And the flaw in the thinking here is that, for example, on 
the fish designation, whether we are replacing with hatchery 
fish or other grown species, and it was mentioned earlier with 
other species, that there is no DNA difference between them, 
given their geography or where they came from, yet we are not 
allowed to count that as a recovery.
    I mean the bottom line--in the minds, I think, of the 
American public, they care about species. They care about being 
able to see it or knowing that it exists. And so, when you show 
that there is no difference in the species, depending where it 
came from or how it got there, but that they are still around 
to enjoy or view or see in picture books, what have you, that 
is part of the problem of the thinking.
    It was alluded to earlier, I think, on the gray wolf. Now, 
some of the thinking in our region is that there has to be 
mating pairs in basically almost every county, or something 
like that, as part of a plan, a recovery act, or what have you.
    Now, the compatibility with the gray wolf with livestock, 
with communities--I mean I don't think the counties surrounding 
Portland or surrounding Redding, California really want to have 
the gray wolf in their back yard. But if we can all just know, 
as Americans, that the gray wolf is doing well in the upper-
middle States along the Canadian border or in Canada, we know 
we have the North American gray wolf as a species, it is still 
around. It doesn't have to be everywhere. And I am just glad 
that we don't have a plan for the recovery of the T-Rex or the 
velociraptor to have to be in our neighborhoods.
    But I am frustrated that, when we lay out these goals under 
ESA, that, although there may be some number that is pointed to 
for a species being threatened or endangered, that there is 
never a number of when we have reached our goal. What is the 
goal? What is the target we are shooting for, so that we have 
recovered it, that we can remove it from threatened or 
endangered?
    It was mentioned earlier about the ESA being 99 percent 
effective. By whose measure is it being that? Because we are 
seeing that in the 40 years of the ESA, we have recovered 20 or 
less species of the hundreds and hundreds listed. Twenty 
percent or less have been removed from the list. We have great 
frustration in my neighborhood, with one called the Valley 
longhorn elderberry beetle. It has held up critical flood 
control projects that have been needed for many years in the 
area, not because of the beetle itself, but because of the 
critical habitat designation, which is fraught with problems, 
as we mentioned, everywhere. Two million acres for the toad and 
the frog.
    Here we have a problem where, if you have an elderberry 
bush growing on a levee--maybe a beetle has not visited that 
bush ever, or in years--you can't touch the bush in order to 
fix the levee. And so, subsequently, a couple decades ago, a 
massive blow-out was had on the levee, lives were lost, 
hundreds of millions of dollars worth of damage, the State of 
California lost a lawsuit, having to reward over $400 million 
because they couldn't fix the levee because of a habitat 
designation for something the species is not even using.
    We have much to do on critical habitat designation, and 
that is really one of the bigger flaws. Because I don't think 
there is anybody on this panel that doesn't care about trying 
to take a truly endangered species and figure out where to go 
with it. On the other hand, I heard a statement earlier that 
somewhere along the line somebody said we shall not--we, as 
people, shall not permit any species to go extinct. Well, we 
have only been industrialized, truly, as a country, for 
probably maybe 150 years or so, 150 recent years, that we would 
have any kind of sizable impact on changing an environment. And 
yet species have been going extinct for all of the existence of 
the earth.
    And so, for mankind to think, in his arrogance, that we are 
going to single-handedly stop the natural evolution of the God-
made system, to the extent it is being done, to the headstands 
that we are taking to spend money, to take people's property 
rights, and, indeed, the recovery rate of an Endangered Species 
Act over 40 years that has been spending hundreds of millions 
or more of tax dollars, and billions taking away from the 
people to get such poor results, a major re-thinking is needed 
of this act, one that is going to be effective for species that 
people care about.
    Because if regular people heard what the gentleman from 
Utah was talking about with putting a pole line adjacent to a 
regularly traveled roadway or dirt road or gravel road, 
whatever it is, and having these helicopters to haul them 20 
yards because of prairie dog habitat, which has a season on it, 
and everybody else in the neighborhood is using their four-
wheelers and vehicles like that to do their farming and other 
practices, it really comes down to ridiculous. That is what the 
public doesn't hear about. All they hear about is the bleating 
from the environment groups, like, ``Oh, we are going to lose 
all these species,'' except they are not hearing what it is 
really costing them in jobs in this bad economy and everything 
else that is going on.
    And so, Madam Chairman, I yield back, but we have much to 
do on this, and much to overcome with misinformation on this 
act. Thank you.
    Mrs. Lummis. I thank the gentleman and recognize the 
gentleman from Florida, Mr. Southerland.
    Mr. Southerland. Thank you, Madam Chair. Dr. Roman, I had 
some questions. You alluded in your testimony to my particular 
region, northwest Florida, you made reference to Apalachicola. 
I had some questions regarding an issue that is very important 
to our folks there, the Apalachicola River Basin and the river.
    In your testimony you said it appeared that several of the 
mussels which you alluded to--appeared that they were in direct 
conflict with human activities in our region. Define human 
activities for me.
    Dr. Roman. I am sorry if I was vague in the testimony. So, 
in that regard, it was Atlanta drawing off water----
    Mr. Southerland. It was what?
    Dr. Roman. It was Atlanta drawing water upriver and 
lowering the water table in that regard.
    Mr. Southerland. OK. So you agree----
    Dr. Roman. That is the conflict I know.
    Mr. Southerland. So you agree--because, as I read through 
your testimony, you referred to a drought in 2007. And you 
referred to flooding forests, and the need for flooding 
forests. But nowhere did you specify the water flow issue.
    Dr. Roman. So that would have been an error on my part. 
That was my intent, was looking at that water flow issue, and 
talking about the fact that residents of Florida were in equal 
state as they were with the two endangered mussels, the purple 
bankclimber and the fat threeridge, in that they both depended 
on water.
    Mr. Southerland. They both what?
    Dr. Roman. They both depended on water flow----
    Mr. Southerland. Yes.
    Dr. Roman [continuing]. Getting into the Apalachicola 
estuary. So I was saying that the water unites both groups in 
that way.
    Mr. Southerland. Sure, OK. Well, then, you and I agree 
there. I mean I look at when you have had 50 percent reduction 
in water flows, it is having a--you did allude to the oyster 
industry down in Apalachicola. That is the heart of my 
district. And so, if you look at that area, our folks and 
families down there are being crushed because of the water flow 
issue.
    Earlier in your testimony you mentioned spiritual and moral 
reasons regarding the ESA. I am just curious. Rarely do I have 
someone testify and inject spiritual and moral reasons why we 
do things. And, as a spiritual person, I locked on to that. I 
mean is it spiritually or morally valid to exacerbate the pain 
and the suffering on habitat and humans downriver by the Corps' 
continual ignoring those needs, and not addressing water flows 
down the ACF, the Apalachicola, Chattahoochee, Flint River 
system?
    Dr. Roman. I agree with you completely. No, I don't think 
it is moral at all. I think that water should flow there, as I 
had said, for the wildlife that is there, for the flooding 
forests, for your residents in your district. I have met with 
the oystermen, I have been down there, as well--the 1,200 
oystermen that work there. I have seen the folks that harvest 
Tupelo honey, as well, dependent on those flooding forests that 
provide storm protection. I argue and agree with you that water 
should be coming to Florida, and should be coming to the 
endangered species that are there, and the residents of that 
area.
    Mr. Southerland. I find it ironic that I am able to--
perhaps you and I may disagree on many things, but I find it 
ironic that you and I agree, I believe, in our stance that we 
think that the Corps of Engineers, on this issue, is immoral, 
because of what they are doing. And I am very frustrated by a 
50-year battle.
    And we are prioritizing human recreation at the expense of 
total devastation to a community where 60 percent of its 
property is owned by government, so, therefore, they have 
little to no ability to raise a tax base to protect its 
citizens. And I find that this is an area where government and 
those who appropriate dollars from the public treasury are, in 
fact, immoral and lack the spiritual direction that I think the 
good people of our region expect. So, I think it is ironic that 
you and I agree on this.
    Dr. Roman. I am glad we do.
    Mr. Southerland. And I thank you for your testimony. One 
thing we may--I am going to shift real quick. You also alluded 
to the fact of the long-leaf pine in the Apalachicola area in 
our region--and I know I am losing my time, so I will ask 
quickly. You talk about how 99 percent of the native long-leaf 
pine forests were cut down, endangering many of its residents, 
including the red cockaded woodpecker.
    Where is the incentive on the protection of this particular 
species, where is the incentive? Because of the ESA, for a land 
owner to harvest his marketable long-leaf pine, to replant his 
property with seedlings to produce another long-leaf pine 
forest--if knowing that habitat is going to usher in the 
stripping of his property rights?
    Dr. Roman. So the ESA now has safe harbor. And your 
resident should know about this. So you can go on and register 
your land. If you don't have any red cockaded woodpeckers on 
your land then the Fish and Wildlife Service will come out and 
say, ``OK, there are none there,'' then you can plant that area 
and not have to worry about those restrictions if you register 
early on. Or if you have one there, that you won't have to 
worry about more coming in.
    So, that is an issue that has been a concern to biologists 
for a long time, and I think it is being addressed.
    Mr. Southerland. Well, God help them if, after the 
registering, a red cockaded woodpecker might irresponsibly find 
its way on to that property owner's property. So----
    Dr. Roman. It is intended to protect them for that.
    Mr. Southerland. Yes, I understand. All right, I apologize 
for going over time, Madam Chair. I yield back.
    Mrs. Lummis. I thank the gentleman. And now, with 
recognition of the patience of the gentleman from Kansas, he is 
now recognized for 5 minutes. Mr. Huelskamp, the floor is 
yours.
    Mr. Huelskamp. Thank you, Madam Chairman, and particular 
thanks to the committee for allowing me to join here today, as 
I am not a member of this committee. And I appreciate the 
Kansan that is here. I have a few questions for Mr. Foley and 
others.
    First, there has been some discussion in your testimony on 
the lesser prairie chicken. What has happened with the 
population of the lesser prairie chicken in Kansas in the last 
decade?
    Mr. Foley. In the last decade, as you aware, Mr. Huelskamp 
and Congressman--I appreciated the opportunity to work with you 
over the years--we have had multiple counts and the counts 
range--I think the most current count was around--the 
populations of those were about 17,000. It goes back to 
validating data and some of the other discussions today, with 
target ranges in that 46,000 to 67,000--it depends who you 
read, as well.
    We have had peaks and dales. I think it has been greater 
over time. And then, with our 3 years of consecutive drought in 
your congressional district, it has probably had some declines, 
just like everything else.
    Mr. Huelskamp. But the numbers have increased or decreased 
in the last decade or so?
    Mr. Foley. In the last decade we went from very low numbers 
to very high numbers, 30,000 to 40,000. And if we are in the 
20,000 range now, it has kind of increased, decreased a little 
bit----
    Mr. Huelskamp. Even with the decrease now, are the numbers 
still higher than they were----
    Mr. Foley. Yes.
    Mr. Huelskamp [continuing]. A decade ago?
    Mr. Foley. Yes.
    Mr. Huelskamp. And that was without a listing, and the 
numbers have still increased?
    Mr. Foley. Yes.
    Mr. Huelskamp. What do you attribute that to?
    Mr. Foley. Well, we believe it was to the Federal program, 
the conservation reserve program. A lot of those particular 
habitats, we have had a lot of conservation reserve acres that 
is in my testimony throughout the years that we had a lot of 
habitat, a lot of voluntary conservation measures and managers 
out there providing that habitat.
    Mr. Huelskamp. What do you think a response--I know you 
worked with a lot of farmers and ranchers over the last 20 
years--in your experience, what would be the response if there 
was a listing and, instead of voluntary, it all became 
mandatory? How helpful and interested in progress of the lesser 
prairie chicken would Kansas farmers and ranchers be, in your 
opinion?
    Mr. Foley. Well, Congressman, it is definitely a concern of 
mine. And I believe the response will be pushing the other 
direction to disenroll, to move the lands out of programs that 
were put there to benefit wildlife and----
    Mr. Huelskamp. Yes, that would be my guess, there would be 
a reaction the other way, especially after all the progress 
that has been made, a tremendous amount of progress, without 
the Federal Government or the courts dictating this.
    When the settlement was reached in the courtroom, I think 
it was a secret agreement. When was the State of Kansas 
informed about this settlement for the requirement that a 
listing decision be made by March?
    Mr. Foley. I would have to look at our testimony. It was 
early on. Basically, when they announced the notice of 
publication, when we----
    Mr. Huelskamp. Were you in the room when the settlement was 
made?
    Mr. Foley. No, sir.
    Mr. Huelskamp. Do you know who was in the room?
    Mr. Foley. No, I do not.
    Mr. Huelskamp. Do you think we should know who was in the 
room?
    Mr. Foley. I think it would be important for the American 
public to know, yes.
    Mr. Huelskamp. Yes. Do you think, though, that the State 
should have the authority to pre-approve these type of secret 
settlements?
    Mr. Foley. I think the State should be involved in any 
settlement that affects their land.
    Mr. Huelskamp. Yes. Recently my office received official 
notice from Fish and Wildlife Service saying that they intend 
to release the Topeka shiner minnow--this was last week--
endangered species in Logan County, Kansas. Do you know what 
caused this, or who has the authority to do this? And was the 
State involved in this?
    Mr. Foley. To release the minnow?
    Mr. Huelskamp. Yes.
    Mr. Foley. In a very, very arid climate? Where are they 
going to put it, I guess, would be my first question. Where are 
you going to find the water? We don't have a lot of surface 
waters in northwest Kansas. I am not aware of that.
    Mr. Huelskamp. OK.
    Mr. Foley. We have had other reintroduction in Logan 
County, with the black-footed ferret, which is a different 
issue.
    Mr. Huelskamp. For folks that are--and, Mr. Evans, you are 
obviously very familiar with this law. There is nothing in the 
law that would require or justify letting the State know that 
there is the intention, in this particular case, in a very dry, 
arid climate, to reintroduce a species that has not existed 
there for years?
    Mr. Evans. It was very interesting, Mr. Congressman. I 
never heard this before. Generally, we know the law tries to do 
everything possible to notify everybody. I don't know what 
happened here in this specific detail. But, of course, it is a 
good idea for the State to know in advance, especially if this 
is an arid place like it is. And I would like to know more 
detail, because it sounds unusual in my whole experience.
    Mr. Huelskamp. And, actually, in my experience, 
particularly in northwest Kansas, this is par for the course 
with the Fish and Wildlife Service, as we demonstrated with 
discussion of the lesser prairie chicken. The intent to proceed 
ahead without notification, without working with local folks, 
without working with the State--I guess I was somewhat thankful 
they have actually agreed to actually review the lesser prairie 
chicken reintroduction plan.
    But what is interesting--and I will say this, and I 
apologize for going over time, Madam Chairman--but the Director 
was asked about the fact that Kansas still has a hunting 
season, the lesser prairie chicken, because we have done such a 
good job, and was asked, ``Do you plan on allowing the hunting 
season to continue in Kansas,'' and his answer was yes. I think 
everybody in the room thought that's the silliest thing we have 
ever heard. Of course, my constituents think the same.
    But the more silly answer was when asked about the fact the 
Kansas population is going down. Actually, the New Mexico--or 
Kansas is going up, New Mexico is going down. The Director was 
asked a question, ``What about catching the birds in Kansas 
that you are going to hunt, and instead, releasing them in New 
Mexico? Would that help meet the goals of this listing?'' And 
he said, ``We are considering that option.''
    I mean that is the foolishness that Kansans see in these 
approaches from Fish and Wildlife Service. We are making 
progress, Greg. I appreciate the efforts in Kansas.
    I yield back, Madam Chairman.
    Mrs. Lummis. I might note that on my very own ranch the 
swift fox was captured for reintroduction elsewhere with our 
full cooperation. And so those activities have continued for a 
long time. And in Wyoming, as well, there is a hunting season 
on the sage grouse, even though they are headed in other parts 
of the State for a difficult sailing.
    I thank the gentleman from Kansas for being with us today. 
And, in recognition of the impeccable timing of the gentleman 
from Pennsylvania, I now recognize Mr. Thompson for 5 minutes.
    Mr. Thompson. Well, I thank the gentlelady, and I thank the 
gentleman from Kansas for going over, which allowed me to get 
back here in time from the House Floor. And I thank the panel. 
I apologize, I was here for a fair amount of the beginning, and 
I apologize, I had to leave.
    My observation of where we have gone with the EPA, like 
sometimes other areas--I do believe when the ESA--when the 
Endangered Species Act was put in place, it was put in place by 
folks who were strictly scientists, and not advocates. And, for 
me, I think the difference is a scientist uses scientific 
methodology, a scientist does not have a bias.
    Advocates--and I have a lot of advocates come to my office 
every day to see me--they have a strict bias coming in. And 
this is just--I am not looking for a response, but just my 
observation on this is we have way too many advocates in our 
agencies today, and not enough scientists who really go based 
on pure scientific methodology.
    And at the risk of--and I am a huge supporter of higher 
education. So, Dr. Roman, a question for you--more of a 
reflection in terms of the state of--you are kind of a 
representative for higher education, and a lot of great 
researchers that we have out there, it kind of reflects on some 
of the discussion I heard early on, in terms of proprietary 
information, and how that is not made available.
    And specifically, the underlying data that would be so 
helpful, in terms of explaining rationale, help to guide better 
policy development, but a lot of that--unfortunately, I see a 
lot of government-funded research that we don't see a return on 
investment from, from investing in to with our researchers, 
because too much of that is held back, and too much 
proprietary--and I am wondering how much of that do you see the 
role of that, of specifically where it is basically, it is held 
back and considered proprietary because it is the basis for 
securing future government funding for research, versus doing 
what it truly should do, make it transparent, roll it out for 
the greater public good.
    I don't know if you are prepared to comment on that, or 
your thoughts.
    Dr. Roman. Well, personally, any time I have gotten public 
funding, I have published that. So it has always been on public 
record.
    Mr. Thompson. I appreciate that.
    Dr. Roman. And, in fact, we make it available to the public 
for free.
    Mr. Thompson. And I wasn't really looking specifically at 
you, but your observation is academia, as a whole----
    Dr. Roman. Yes.
    Mr. Thompson [continuing]. Research----
    Dr. Roman. To my knowledge, the vast majority of decisions 
under the Endangered Species Act, and broadly in conservation, 
are available online.
    Mr. Thompson. Well, the testimony that I witnessed earlier 
talked about a lot of underlying data not being--OK. I just was 
interested----
    Dr. Roman. I can't address that specific case.
    Mr. Thompson. All right.
    Dr. Roman. But I would say, in general, it is available.
    Mr. Thompson. OK. Ms. Maxwell, in 2010--and I apologize if 
I am kind of re-plowing ground, since I wasn't here for some of 
the questions--specifically to the greater sage grouse, which I 
obviously don't have a problem with in Pennsylvania, and 
thankful of it, though I do enjoy grouse season, ruffed grouse 
season, in Pennsylvania, hunting season, it was identified by 
Fish and Wildlife as a listing priority.
    I was just kind of curious of the switch from priority 
eight to priority two. In your opinion, was that driven by 
science--just kind of curious what your observations were.
    Ms. Maxwell. Well, I wasn't aware that it had been lowered 
to two. But between----
    Mr. Thompson. I may have that flipped around, actually. It 
was moved to a higher priority, whatever way the----
    Ms. Maxwell. That is the way it goes. That is the way--it 
goes down to go up.
    Mr. Thompson. OK.
    Ms. Maxwell. But between 2010 and now, there have been a 
lot of new studies coming out. Some of the ones that I have 
seen are actually showing it is more accurate science. And from 
some of the studies I am seeing, it shouldn't have been 
lowered, because the populations seem to be responding well to 
mitigation, especially in areas where it was heavily studied 
that they are declining, like in the Pinedale area. That was 
where a lot of the studies are showing a decrease in 
population.
    But now there are newer studies coming out where it is 
showing that is not necessarily the case any more. So I would 
be surprised for it to have been lowered.
    Mr. Thompson. Mr. Foley, thanks for your service to 
agriculture. As the Agriculture Subcommittee Chairman, greatly 
appreciate it, your work in Kansas.
    I find that better public policy occurs when we don't do it 
in a vacuum, when we get out--certainly outside the beltway, or 
outside the agencies, and we have a spirit of collaboration 
with looking at full impact on communities, on the biosphere, 
everything. And, quite frankly, I would argue that the most 
endangered species we have today are individuals who live in 
rural communities and rural communities themselves can be on 
the line--be on the way to being ghost towns, as a result of 
regulations.
    Your thoughts, in terms of--should we be doing a better job 
at getting that collaboration, the Federal Government reaching 
out to the States, to the communities?
    Mr. Foley. Thank you for your kind comments. I think it is 
critical. I really believe it. Obviously, we have 105 counties 
in Kansas, we have a lot of sparsely populated counties. I am 
talking 3,000 to 5,000 people in a county that is 30 miles 
square. So a lot of land mass. And we have low populations in 
it.
    Everything that has an economic impact to your engine--and 
our engine is agriculture--is relative to schools, is relative 
to how do you keep your function, your grocery store, open. Are 
you willing to truck your kids 75 miles? Are you going to move 
them to a city where they can be educated? That is the reality 
of when we start doing things that have this significant of an 
impact, and you start reducing that tax resource, whether it 
was from agricultural lands, and you change the use value of 
those acres of land. It is critical.
    If I had a row crop irrigated use value, or a dry land use 
value, then it is on the tax rolls, part of what we are paying 
in for our school infrastructure. It is all relative. It is all 
relative. And everything that impacts that engine, the trickle 
impacts, whether it is the agribusiness deal or the selling 
tractors or fertilizer or seed or the packing plants where we 
are feeding the cattle, we are taking our corn to the feed 
lots, all of those things are relative to these activities.
    And our concern, in addition to that, is that we are a 
price-taker economy. In our economics, in agriculture, we don't 
have the opportunity to set the price for our product. So if 
Illinois, or even in the rest of Kansas, they didn't have these 
additional costs, then you just moved production. So it lends 
right to your ghost town theory. They just move out of there, 
because I can't afford it, because I can't say, ``Well, I had 
an additional cost of $12 per unit, I will raise my price.'' It 
doesn't happen that way. That is our passion, our concern about 
agriculture.
    Mr. Thompson. Very good. Thank you to the panel. Thank you, 
Madam Chair.
    Mrs. Lummis. I want to thank the Members, particularly the 
panelists, for your extraordinary participation, for your 
expertise, and for your thoughtful commentary. I want to thank 
our guests and our staff, both sides of the aisle. And everyone 
on the panel today, I believe, has the same stated goals.
    And I could relate, as Mr. Southerland said, to the 
reference that there are spiritual and moral reasons to be good 
stewards and good caretakers of our land and our water, and to 
the species of the earth. So our goals are the same. And it is 
my view that, since the Endangered Species Act was enacted in 
1973, those goals have become embedded in the American psyche.
    But the problem is we are still administering it and 
enforcing this law by a 20th century litigation model. It is 
like using an Edsel in 1913--or rather, in 2013. We really have 
moved beyond the Edsel, in terms of our understanding of the 
technology of the automobile. And I would assert that we have 
moved beyond 1973 in terms of our ability to save species. We 
understand the scale of the habitat that is required. We 
understand the science that is useful to recovering species, 
what activities, and what specific people on the ground are 
best able to recover those species.
    I believe it is time that the law and the rules and 
regulations caught up with our ability, as Americans, to 
conserve and preserve species. So I am hopeful that, as we move 
forward with this effort, to have a 21st century conservation 
model that recognizes that these values and goals are embedded 
in the American people, will actually allow us to implement 
boots-on-the-ground conservation, and not just flowery language 
in courtrooms about the importance of the Endangered Species 
Act.
    With that conclusion, I once again want to thank our 
panelists for their extraordinary testimony. This hearing is 
now adjourned.
    [Whereupon, at 12:41 p.m., the committee was adjourned.]

             [Additional Material Submitted for the Record]

      Letter Submitted for the Record by Mark N. Salvo, Director,
                        Federal Lands Conservation,
                                     Defenders of Wildlife,
                                 Washington, DC, December 26, 2013.
The Honorable Doc Hastings,
Committee on Natural Resources,
U.S. House of Representatives,
1324 Longworth House Office Building,
Washington, DC 20515.

The Honorable Edward Markey,
Committee on Natural Resources,
U.S. House of Representatives,
1329 Longworth House Office Building,
Washington, DC 20515.

    Dear Chairman Hastings and Ranking Member Markey:

    I am writing on behalf of Defenders of Wildlife to submit comments 
in response to testimony presented at the recent oversight hearing, 
``ESA Decisions by Closed-Door Settlement: Short-Changing Science, 
Transparency, Private Property, and State and Local Economies,'' held 
by the Committee on Natural Resources on December 12, 2013. We are 
concerned about the veracity of statements by majority witnesses 
concerning the potential listing of the lesser prairie-chicken under 
the Endangered Species Act [ESA] (16 U.S.C. Sec. 1531 et seq.) and 
conservation planning for the greater sage-grouse. Defenders of 
Wildlife is a national, non-profit, public interest conservation 
organization with expertise on both species and related administrative 
processes. We respectfully request the committee to include our 
submission in the record for the oversight hearing.
                         lesser prairie-chicken
    The witness (Greg Foley, Executive Director, Division of 
Conservation Kansas Department of Agriculture) who testified on the 
possible listing of lesser prairie-chicken (Tympanuchus pallidicinctus) 
understated the need to protect the bird under the ESA and overstated 
the potential effects of listing on use of private property in his oral 
testimony.

    The lesser prairie-chicken has been reduced to less than 10 percent 
of its historic distribution and populations have experienced long-term 
declines.

    The witness gave an overly optimistic report of the species' status 
in Kansas. Using the best available science, the U.S. Fish and Wildlife 
Service (Service) found that despite existing conservation programs, 
the ``current statewide trend (in Kansas) in lesser prairie-chicken 
abundance between 2004 and 2009 indicates a declining population'' (77 
Fed. Reg. 73848). A subsequent population survey conducted in August 
2013 for the Western Association of Fish and Wildlife Agencies 
documented further population declines, finding that the species' 
abundance had plummeted approximately 50 percent range-wide during the 
previous year (McDonald et al. 2013, unpublished report).

    Listing lesser prairie-chicken would have negligible effects on use 
of private property.

    The witness overstated the potential impacts to ``food and fiber 
production'' and ``personal property rights'' from Federal listing of 
the lesser-prairie chicken. On December 11, 2013, the Service proposed 
a special ``4(d) rule'' that would exempt a host of activities from 
having to comply with the ESA's prohibition on ``take'' of the species 
if it is listed (78 Fed. Reg. 75306). Exempt activities include most 
``routine agricultural practices'' on currently cultivated lands and 
almost all ordinary ranching and farming practices on privately owned 
agricultural lands enrolled in the U.S. Department of Agriculture's 
Lesser Prairie-Chicken Initiative.
                          greater sage-grouse
    The witness (Megan Maxwell, Consulting Biologist) who testified 
about the current Federal planning process to conserve greater sage-
grouse (Centrocercus urophasianus) made numerous incorrect assertions 
and mischaracterized the science, law and purpose of the planning 
effort in her written testimony. We respond to her relevant contentions 
as follows.

    The National Technical Team's report on sage-grouse conservation 
measures represents ``best available science'' on sage-grouse.\1\
---------------------------------------------------------------------------
    \1\ Defenders of Wildlife has also identified additional agency and 
peer-reviewed science that augments and fills the gaps in conservation 
measures in the NTT report.

    In 2011, the Bureau of Land Management [BLM] convened a National 
Technical Team of sage-grouse experts and land managers to develop ``A 
Report on National Greater Sage-grouse Conservation Measures'' (NTT 
report). The report includes management recommendations for conserving 
and restoring sage-grouse and their habitat. BLM planning teams are 
considering the recommendations in draft management plans and sub-
regional environmental impact statements [EISs] produced as part of the 
National Greater Sage-Grouse Planning Strategy, an unprecedented effort 
to update dozens of Federal land use plans with sage-grouse 
conservation measures.
    The NTT report was created to provide the best available science to 
Federal planners (NTT 2011: 4) and the BLM has declared in court 
proceedings that the NTT report represents best available science on 
sage-grouse, as the witness acknowledged in her testimony (Maxwell 
testimony: 2). Nevertheless, she glibly asserts that the NTT report 
``does not in fact represent the `Best Available Science' '' on sage-
grouse (Maxwell testimony: 3), which also disregards the deliberative 
process and quality of information used to develop the report. The NTT 
report was written by 23 sage-grouse experts and land managers. The 
team also consulted with additional agency and non-agency scientists. 
The report cites dozens of scientific references on sage-grouse and 
sagebrush steppe, including chapters from Greater Sage-Grouse: Ecology 
and Conservation of a Landscape Species and Its Habitats, a sage-grouse 
monograph written by the top 38 sage-grouse and sagebrush experts in 
the world, edited by S. Knick and J. Connelly (experts on sagebrush and 
sage-grouse ecology), technically edited by C. Braun (sage-grouse 
expert), published by Studies in Avian Biology (Cooper Ornithological 
Society) and printed by the University of California Press.

    The Bureau of Land Management's determination that the NTT report 
represents ``best available science'' on the species does not violate 
the National Environmental Policy Act.

    The witness contends that the BLM's declaration that the NTT report 
represents the ``best available science'' on sage-grouse violates the 
National Environmental Policy Act [NEPA] because it is ``pre-
decisional'' for the national planning process for sage-grouse (Maxwell 
testimony: 2). Her assertion is without merit. NEPA prohibits Federal 
agencies, like BLM, from predetermining the outcome of a NEPA planning 
process such as the National Greater Sage-Grouse Planning Strategy--and 
BLM hasn't predetermined the outcome of its NEPA process by developing 
the NTT report--rather, the agency has developed conservation 
recommendations that it has committed to consider in at least one 
management alternative in draft management plans and sub-regional EISs 
that comprise the planning strategy.
    The witness seems to acknowledge this point where she wrote ``on 
December 27, 2011 the Department of the Interior [DOI] issued 
Instruction Memorandum [IM] 2012-044 to provide direction to BLM for 
considering sage-grouse conservation measures, identified in the NTT 
Report, during the land use planning/National Environmental Policy Act 
[NEPA] process which was already underway in accordance with the 2011 
National Greater Sage-Grouse Planning Strategy. IM 2012-044 directs BLM 
to `consider all applicable conservation measures when revising or 
amending its RMPs in Greater Sage Grouse habitat. The conservation 
measures developed by the NTT . . . must be considered and analyzed, as 
appropriate . . . and incorporated into at least one alternative in the 
land use planning process' '' (Maxwell testimony: 1, emphasis 
original). It is not a NEPA violation for BLM to require planners to 
consider an alternative ``as appropriate'' in a planning document; it 
would be a NEPA violation only if BLM required that a certain 
alternative be selected during the planning process.
    Additionally, the determination that the NTT report represents the 
``best available science'' on sage-grouse was confirmed by a Federal 
court (as the witness acknowledged; Maxell testimony: 2). NEPA does 
require agencies to use ``high quality'' information in planning (40 
CFR Sec. 1500.1(b)) and the BLM's own sensitive species policy commits 
the agency to ``obtain and use the best available information deemed 
necessary to evaluate the status of special status species in areas 
affected by land use plans'' (BLM Manual 6840.22A), and so it would be 
a violation for BLM not to consider the NTT report in its sage-grouse 
plans (see also BLM NEPA Handbook H-1790-1, 6.8.1.2 (January 2008), 
``Use the best available science to support NEPA analysesa . . .'').
    Finally, while BLM has considered the NTT report recommendations in 
draft management plans and sub-regional EISs released to date, the 
agency has declined to adopt the recommendations as the preferred 
alternative in any of these plans.

    Anthropogenic disturbance threatens sage-grouse throughout their 
range.

    The witness, ignoring an exceptional amount of research on the 
subject, falsely contends that the NTT report ``inappropriately assumes 
that anthropogenic disturbances are the primary threat to sage-grouse 
range-wide'' (Maxwell testimony: 3). Multiple compendiums of science 
document the myriad effects of human activities and disturbance on 
sage-grouse, including Connelly et al. (2004); Stiver et al. (2006); 
Knick and Connelly (eds.) (2011) and, most recently, Manier et al. 
(2013) (also cited by the witness). The Service cited many of these 
references and dozens of other peer-reviewed scientific articles 
documenting the impacts of anthropogenic disturbance on sage-grouse in 
its ``warranted, but precluded'' determination in 2010 (75 Fed. Reg. 
13910). The NTT report was developed in response to the Service's 
determination that human activities are threatening the species and 
that BLM's current regulatory framework for managing sage-grouse 
habitat was unclear, inconsistent, inadequate, and haphazardly applied.

    The NTT report recommends scientifically valid conservation 
measures to minimize the effects of anthropogenic disturbance on sage-
grouse.

    The witness claims certain NTT report recommendations are not 
supported in scientific literature, including prescriptions to (1) 
retain 70 percent of vegetation cover in sagebrush steppe in sage-
grouse habitat and (2) limit anthropogenic disturbance to no more than 
3 percent of land surface in priority habitat areas (Maxwell testimony: 
5). In fact, scientific research does support these objectives, as well 
as the professional judgment of sage-grouse experts:
   Retain 70 percent land cover in sagebrush steppe. Connelly 
        et al. (2000: 977, Table 3) recommend retaining > 80 percent of 
        sage-grouse breeding and winter habitat in desired habitat 
        conditions. The NTT report, citing Aldridge et al. (2008), 
        Doherty et al. (2010), Wisdom et al. (2011), recommends 
        maintaining a minimum range of 50-70 percent of priority 
        habitat areas in sagebrush cover. The Oregon sage-grouse 
        conservation assessment and strategy is predicated on 
        preserving/restoring  70 percent of sage-grouse habitat in 
        advanced successional stages of sagebrush steppe (the remaining 
        30 percent to include degraded areas that might also be 
        restored to habitat capable of supporting sage-grouse) (Hagen 
        2011: 74). Knick et al. (2013: 5-6) found that 79 percent of 
        the area within 5 km of remaining active sage-grouse leks was 
        in sagebrush cover.
   Limit anthropogenic disturbance to  3 percent of land 
        surface. Knick et al. (2013) recently confirmed that remaining 
        active sage-grouse leks were in landscapes with  3 percent 
        anthropogenic surface disturbance within 5 km of the lek. In 
        comparison, Copeland et al. (2013), modelling  5 percent 
        surface disturbance, predicted that the higher rate would only 
        slow and not stop population declines in Wyoming.

    NTT report recommendations to conserve sage-grouse habitat and 
limit the effects of anthropogenic disturbance on the species are not 
inconsistent.

    Both the witness and internal agency review of the draft NTT report 
questioned how the recommendation to retain 70 percent of vegetation 
cover as sagebrush steppe in priority sage-grouse habitat comports with 
the 3 percent cap on anthropogenic disturbance. The question was 
presented by BLM staff in an email, which the witness excerpted in her 
testimony:

        Science says 30-50 percent in non-sagebrush cover is OK (see 
        quote below), but the NTT Report says 3 percent in 
        anthropogenic features is the NTT recommended maximum (see 
        quote below).

        Am I missing something, is it worded poorly, or is this a 
        misapplication of professional judgment and science?

        The report now makes this scientifically based assertion: 
        Within priority habitat, a minimum range of 50-70 percent of 
        the acreage in sagebrush cover is required for long-term sage-
        grouse persistence (Aldridge et al. 2008, Doherty et al. 2010, 
        Wisdom et al. 2011).

        That leaves an allowance of 30-50 percent in non-sage-brush 
        cover. So how was the 3 percent maximum cap on surface 
        anthropogenic features derived based on ooprofessional 
        judgmentoo? (see footnote) 3 percent is a long way from 30-50 
        percent[.]

(SGNTT emails, p. 235)

    Both the witness and the BLM reviewer fail to understand the 
distinction between the recommendation that management retain 70 
percent of sage-grouse habitat in sagebrush steppe and the recommended 
3 percent cap on anthropogenic disturbance. Retaining 70 percent of 
vegetation in sagebrush steppe does not imply that the remaining 30 
percent is not important to sage-grouse. In fact, those remaining areas 
should consist of other natural habitats (e.g., pinyon-juniper, aspen 
groves, riparian zones, early successional sagebrush steppe) or areas 
that could be restored to sagebrush steppe. Research also separately 
shows that within an entire landscape, sage-grouse can only tolerate 3 
percent of discrete anthropogenic disturbance (e.g., drilling pads, 
mines, roads, wind turbines, utility corridors, etc.) that permanently 
eliminates sagebrush steppe and reduces the value of surrounding 
habitat to the species.
    So the 70 percent retention standard and the 3 percent disturbance 
cap are not inconsistent, but together provide a baseline for managing 
the last best sage-grouse habitat in the West. A scientist offered this 
explanation in the same email communication excerpted above (which the 
witness failed to mention in her testimony):

        Anthropogenic feature[s] are being limited to 3 percent to 
        limit direct impacts to sagebrush habitat loss but more 
        importantly impacts to sage grouse (direct or indirect) as a 
        result of these features on the landscape.

        The 50-70 percent sagebrush cover is really a minimum range for 
        healthy habitats and that if the remaining habitat were all 
        anthropogenic then the 50-70 percent would not be effective to 
        sustainable [sic] SG populations. If the remaining 30-50 
        percent was in some other plant seral stage (recent burn or 
        annual grassland) at least there is still habitat to be 
        reclaimed or evolve over time back to a sagebrush ecosystem.

(SGNTT emails, p. 240)

    The purpose of the NTT report is to provide recommendations to 
Federal planners to consider in the National Greater Sage-Grouse 
Planning Strategy.

    The witness criticizes the NTT report for failing to consider 
current protections, including local sage-grouse conservation efforts, 
in its management prescriptions (Maxwell testimony: 7). However, such a 
criticism is misplaced because it conflates the NTT report, which 
provides scientific recommendations to conserve sage-grouse, with an 
Endangered Species Act listing determination, which evaluates the 
effectiveness of conservation measures to protect and recover an 
imperiled species. It is not the purpose of the NTT report to evaluate 
existing conservation measures for sage-grouse, although the report 
does include among its recommendations some prescriptions originally 
developed by States, local sage-grouse working groups and others.
    The witness similarly notes that the NTT report fails to consider 
socio-economic conditions in its management recommendations (Maxwell 
testimony: 7), but, again, that is the purpose of other processes, not 
the NTT report. In this case, the NEPA planning strategy process is 
considering socio-economic issues related to sage-grouse conservation 
and the multitude of draft plans and sub-regional EISs produced to date 
include extensive analysis of these concerns.

    NTT report recommendations are a baseline for conserving sage-
grouse and their habitat.

    The witness criticizes the NTT report for attempting to impose a 
``one-size-fits-all'' approach on sage-grouse management plans in the 
West (Maxwell testimony: 4-5, 9, 10). This misconstrues the report, and 
the contention is otherwise mooted by the current planning process. 
Conservation measures in the NTT report are recommended to conserve and 
recover sage-grouse populations. The BLM is considering these 
prescriptions in draft management plans and sub-regional EISs as part 
of the national planning strategy to improve sage-grouse conservation 
on public lands. The prescriptions do not ``predetermine'' the outcome 
of the planning process, and considering them in draft plans is not 
``illegal,'' as the witness otherwise suggests (Maxwell testimony: 8). 
In fact, while the BLM has analyzed the NTT report recommendations in 
many of the draft management plans and sub-regional EISs released as 
part of the planning process, none of the preferred alternatives in 
those plans would implement the NTT report prescriptions. Rather, the 
agency has created different preferred alternatives for each plan, 
based on local considerations and input, bucking the assertion that the 
BLM has adopted a one-size-fits-all approach to conserve sage-grouse.
    As the witness recognized (Maxwell testimony: 1), the BLM has a 
unique opportunity to conserve sage-grouse on millions of acres of 
public lands. But the agency has also acknowledged that reversing long-
term population declines will require a ``new paradigm'' (NTT 2011: 6) 
in land management that protects essential habitat and concentrates 
future land use and development in peripheral and non-habitat areas. 
The NTT report recommendations are intended to help the agency to 
achieve this goal.
    Thank you for this opportunity to submit information to the record 
for the oversight hearing.
            Sincerely,
                                   Mark N. Salvo, Director,
                                         Federal Lands Conservation
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Connelly, S. T. Knick, M. A. Schroeder. 2008. Range-wide patterns of 
Greater Sage-grouse persistence. Diversity and Distrib. 14(6): 983-994.
    Connelly, J. W., M. A. Schroeder, A. R. Sands, C. E. Braun. 2000. 
Guidelines to manage sage-grouse populations and their habitats. Wildl. 
Soc'y Bull. 28(4): 967-985.
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