[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
HEARING TO REVIEW THE IMPACTS OF
ENDANGERED SPECIES ACT AND RELATED
LITIGATION ON NATIONAL FOREST SYSTEM MANAGEMENT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CONSERVATION, ENERGY,
AND FORESTRY
OF THE
COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
MARCH 26, 2013
__________
Serial No. 113-10
Printed for the use of the Committee on Agriculture
agriculture.house.gov
______
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COMMITTEE ON AGRICULTURE
FRANK D. LUCAS, Oklahoma, Chairman
BOB GOODLATTE, Virginia, COLLIN C. PETERSON, Minnesota,
Vice Chairman Ranking Minority Member
STEVE KING, Iowa MIKE McINTYRE, North Carolina
RANDY NEUGEBAUER, Texas DAVID SCOTT, Georgia
MIKE ROGERS, Alabama JIM COSTA, California
K. MICHAEL CONAWAY, Texas TIMOTHY J. WALZ, Minnesota
GLENN THOMPSON, Pennsylvania KURT SCHRADER, Oregon
BOB GIBBS, Ohio MARCIA L. FUDGE, Ohio
AUSTIN SCOTT, Georgia JAMES P. McGOVERN, Massachusetts
SCOTT R. TIPTON, Colorado SUZAN K. DelBENE, Washington
ERIC A. ``RICK'' CRAWFORD, Arkansas GLORIA NEGRETE McLEOD, California
SCOTT DesJARLAIS, Tennessee FILEMON VELA, Texas
CHRISTOPHER P. GIBSON, New York MICHELLE LUJAN GRISHAM, New Mexico
VICKY HARTZLER, Missouri ANN M. KUSTER, New Hampshire
REID J. RIBBLE, Wisconsin RICHARD M. NOLAN, Minnesota
KRISTI L. NOEM, South Dakota PETE P. GALLEGO, Texas
DAN BENISHEK, Michigan WILLIAM L. ENYART, Illinois
JEFF DENHAM, California JUAN VARGAS, California
STEPHEN LEE FINCHER, Tennessee CHERI BUSTOS, Illinois
DOUG LaMALFA, California SEAN PATRICK MALONEY, New York
RICHARD HUDSON, North Carolina JOE COURTNEY, Connecticut
RODNEY DAVIS, Illinois JOHN GARAMENDI, California
CHRIS COLLINS, New York
TED S. YOHO, Florida
VANCE M. McALLISTER, Louisiana
______
Nicole Scott, Staff Director
Kevin J. Kramp, Chief Counsel
Tamara Hinton, Communications Director
Robert L. Larew, Minority Staff Director
______
Subcommittee on Conservation, Energy, and Forestry
GLENN THOMPSON, Pennsylvania, Chairman
MIKE ROGERS, Alabama TIMOTHY J. WALZ, Minnesota,
BOB GIBBS, Ohio Ranking Minority Member
SCOTT R. TIPTON, Colorado GLORIA NEGRETE McLEOD, California
ERIC A. ``RICK'' CRAWFORD, Arkansas ANN M. KUSTER, New Hampshire
REID J. RIBBLE, Wisconsin RICHARD M. NOLAN, Minnesota
KRISTI L. NOEM, South Dakota MIKE McINTYRE, North Carolina
DAN BENISHEK, Michigan KURT SCHRADER, Oregon
VANCE M. McALLISTER, Louisiana SUZAN K. DelBENE, Washington
(ii)
C O N T E N T S
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Page
Thompson, Hon. Glenn, a Representative in Congress from
Pennsylvania, opening statement................................ 1
Submitted report............................................. 52
Walz, Hon. Timothy J., a Representative in Congress from
Minnesota, opening statement................................... 3
Prepared statement........................................... 4
Witnesses
Pena, Jim, Associate Deputy Chief, U.S. Forest Service, U.S.
Department of Agriculture, Washington, D.C..................... 5
Prepared statement........................................... 6
Supplementary material....................................... 51
Larence, Eileen R., Director, Homeland Security and Justice, U.S.
Government Accountability Office, Washington, D.C.............. 8
Prepared statement........................................... 10
Hopkins III, Alva J. ``Joe'', President, Forest Landowners
Association, Folkston, GA...................................... 20
Prepared statement........................................... 22
Schildwachter, Ph.D., Greg, President, Watershed Results,
Arlington, VA.................................................. 24
Prepared statement........................................... 26
HEARING TO REVIEW THE IMPACTS OF
ENDANGERED SPECIES ACT AND RELATED
LITIGATION ON NATIONAL FOREST SYSTEM MANAGEMENT
----------
TUESDAY, MARCH 26, 2014
House of Representatives,
Subcommittee on Conservation, Energy, and Forestry,
Committee on Agriculture,
Washington, D.C.
The Subcommittee met, pursuant to call, at 10:03 a.m., in
Room 1300 of the Longworth House Office Building, Hon. Glenn
Thompson [Chairman of the Subcommittee] presiding.
Members present: Representatives Thompson, Tipton,
Crawford, Ribble, Noem, Benishek, McAllister, Walz, Nolan, and
Schrader.
Staff present: Brent Blevins, DaNita Murray, Debbie Smith,
John Goldberg, Mary Nowak, Nicole Scott, Tamara Hinton, Anne
Simmons, Keith Jones, Lisa Shelton, Liz Friedlander, John
Konya, and Riley Pagett.
OPENING STATEMENT OF HON. GLENN THOMPSON, A REPRESENTATIVE IN
CONGRESS FROM PENNSYLVANIA
The Chairman. Good morning everyone. This hearing of the
Subcommittee on Conservation, Energy, and Forestry to review
the impacts of the Endangered Species Act and related
litigation on National Forest System management will come to
order. I want to thank everybody and want to welcome everyone
to today's Subcommittee hearing which will focus on the impacts
of litigation stemming from the Endangered Species Act and
related laws. This Subcommittee has held several hearings
examining ways in which Congress can ensure that the Forest
Service is better able to manage our Federal, state and private
forests, and today's hearing continues that effort.
Beginning last May, I had the privilege of serving on a
Republican Congressional working group led by Chairman Doc
Hastings of the Natural Resource Committee and Representative
Cynthia Lummis examining a variety of issues concerning the
Endangered Species Act. A copy of the final report has been
distributed to all Members, and without objection it is going
to be included in the record of this hearing.
[The document referred to is located on p. 52.]
The Chairman. I recognize that this Subcommittee does not
have legislative jurisdiction over the Endangered Species Act.
The interaction between the law and others within our
jurisdiction as well as the implications of this law for our
foresters, our farmers and our private landowners is
significant. The ESA was first enacted in 1973 to preserve,
protect and recover key domestic species and has certainly
enjoyed many successes. Forty years later as we have identified
many strengths of the law, we have likewise identified many
weaknesses. The working group report details many of these
deficiencies and lays out a roadmap for what I am hopeful will
be a bipartisan effort to review, to reform and to strengthen
the law. Now, while any hearing on the Endangered Species Act
could include a laundry list of items, today the panel will
just focus its attention on issues related to the cost of
litigation. One of the most frequent statutes used for
litigation has been the Endangered Species Act. And during
several of our hearings on forest management, a recurring theme
among witnesses has been how frivolous litigation has delayed
needed forest management activities.
Unlike many of our laws, the ESA includes a citizen
supervision which authorizes citizens to enforce compliance
with any provision of the Act. In a citizen suit, the court may
grant an injunction and award attorney fees and litigation
costs to any prevailing or partially prevailing party whenever
the court determines such an award is appropriate. Now, citizen
suits have been and continue to be a useful tool in checking
the actions of the Executive Branch. However, these lawsuits
can have far-reaching negative consequences when abused. Today
we will examine how citizen suits have impacted our private and
public forests.
Throughout the 40 year history of the Endangered Species
Act, the Forest Service perhaps more than any other Federal
land management agency has adopted policies and procedures
which have greatly enhanced the scientific approach taken to
manage resources under the Service's care. Now likewise, the
Forest Service has gone to great lengths to improve the
transparency in the public partnership and its decision-making
process. Despite these tremendous efforts, the Service
continues to be stymied by an increasing number of frivolous
lawsuits. A recent study published by the Journal of Forestry
examined 1,162 lawsuits filed against the Forest Service
between 1989 and 2008. Though the Forest Service prevailed in
most of these cases, I think we will hear today that neither
the Service nor the supporting agency it relies on have any way
of tracking the man hours and budgetary resources diverted from
essential activities--and I would argue activities to make sure
our forests are managed in a healthy way--to defend against
these frivolous claims. This resource drain is a flagrant abuse
of taxpayer dollars.
We will also hear from private landowners whose day-to-day
businesses are negatively impacted by these lawsuits. When this
Subcommittee tends to focus on the economic impacts of farmers
and foresters, we would be remiss if we didn't also examine the
implication of these lawsuits on the species that we are trying
to protect. When the Forest Service is prevented from
implementing timely management decisions to sustain forest
health, how can we assume that we are complying with the goals
of the Act to preserve, protect and recover threatened and
endangered species?
This is a complex issue. I don't expect us to enact the
necessary reforms overnight, but I expect the attention of the
Subcommittee and now look forward to the testimony of the
witnesses who will share their expertise on this topic.
Thank you to the panel for taking time to be here today,
and I now yield to the Ranking Member for his opening
statement.
OPENING STATEMENT OF HON. TIMOTHY J. WALZ, A REPRESENTATIVE IN
CONGRESS FROM MINNESOTA
Mr. Walz. Well, I thank the Chairman, and I want to thank
each of you for taking time out in helping us understand this
complex issue.
This Committee has a long, storied history of
bipartisanship. We have proven we can do it. We got a farm bill
done when many didn't think so, and I am proud of that work we
have done. But I would be remiss if I didn't say I am a little
frustrated with today's hearing. The working group that the
Chairman speaks about is an interesting and exciting proposal.
But we received no invitation to join that, and there are many
Members on this side of the aisle that would have gladly taken
that opportunity because we understand the complexity of this
issue. We certainly understand the impact and legitimate
concerns on private property owners. And with 80 percent of
those species being the species that we are talking about being
on those private lands, we need partners that we are working
hand in hand with. We also respect biological diversity.
And so our frustration is that this is a broad issue. There
are jurisdictional issues here. Not being included in this ESA
working group puts up unnecessary partisanship where it doesn't
need to be. You are going to find sympathetic ears who
understand this issue on both sides of this dais. My good
colleague from Oregon is an expert on this and a champion of
making this work right, and these are folks that want to be
included.
So we have been rushed with this hearing. We had witnesses
that we wanted to bring on this side and did not have the
opportunity to do so. And again, it is not for the sake of
trying to create a partisan issue. We simply weren't invited,
Mr. Chairman. So hopefully in the future you would know many of
us on this side have over the years developed strong,
bipartisan credentials and a willingness to solve the issues
with ESA.
I will submit my entire opening statement for the record.
As we approach this large topic there are things that we can do
better. ESA is not perfect, but I also think when I see some of
the language coming up that only one percent of species have
been delisted, the intent of this law is to not have species go
extinct and 99.5 percent that were put on there have not.
So my perspective on this is of trying to strike that
balance between private landownership and economic activity
which is an absolute legitimate concern. We must make sure
there are not onerous burdens put on those landowners but also
looking at areas where we have an agreement. Do we wish to have
biodiversity and protection of species? That is a legitimate
point if you do not believe in the purpose of ESA. But, don't
use the guise of saying that it is ineffective because we have
delisted because I would offer this up: The Florida Panthers
Recovery Plan is 114 years long. I will probably be long gone
before that one is delisted. It doesn't mean it was a failure.
So with that, I look forward to your testimony. I look
forward in the future to playing an active role in this. We
want to. We need to. My landowners want us to, and I am more
than willing to do that. Just ask us, and we will be there.
With that, I yield back.
[The prepared statement of Mr. Walz follows:]
Prepared Statement of Hon. Timothy J. Walz, a Representative in
Congress from Minnesota
I thank the Chairman, and I want to thank each of you for taking
time out of your day to testify before this Subcommittee. The
Agriculture Committee has a long, storied history of bipartisanship.
We've proven we can do it. We got a farm bill done when many didn't
think so and I'm proud of the work we've done in the areas of
conservation, energy and forestry.
I would be remiss if I didn't say I'm a little frustrated with
today's hearing. The working group that the Chairman speaks about is an
interesting and exciting proposal, but we received no invitation to
join even though there are many Members on this side of the aisle that
would have gladly taken that opportunity because we understand the
complexity of this issue.
The perspective being presented today is of trying to strike a
balance between conservation and private land ownership and economic
activity. This is an absolute legitimate concern. We need to make sure
there are not onerous burdens put on land owners. But we also have to
ask the question; do we wish to have biodiversity and protection of
species and to what extent? It's a legitimate point if you do not
believe in the need for critical wildlife protection in this context,
but it shouldn't be under the guise of trying to say that the law is
ineffective because of the percentage of species delisted, because I
would offer this up: The Florida Panther's recovery plan is 114 years
long. I'll probably be long gone before that one's delisted. It doesn't
mean the ESA is a failure. In fact the Center for Biological Diversity
performed a study on this very topic and found that 90 percent of
species are recovering at the rate specified by their Federal recovery
plan. Another metric of importance is the fact that 99% of the species
listed on the ESA have not gone extinct. These are species that were on
the verge of collapse. This includes the American Bald Eagle which has
made a dramatic recovery under the ESA.
We certainly understand the impact and legitimate concerns on
private property owners and with 80% of those species being on those
private lands, we need partners that we work hand in hand with. We also
respect biological diversity and wildlife habitat. The benefits of
conserving both are immense. Yearly sportsmen and women spend over $90
billion into the U.S. economy and so our frustration is that this is a
broad issue with many competing perspectives that need to be heard.
Also, there are jurisdictional issues here. The House Agriculture
Committee does not have jurisdiction over the ESA so it is confusing as
to why a Committee known for bipartisanship would hold a partisan
hearing on a law outside our jurisdiction. At the end of the day, not
being included puts up unnecessary partisanship where it doesn't need
to be. We can work on these issues together.
You're going to find sympathetic ears, on our side of the aisle,
who understand this issue. My good colleague from Oregon is an expert
on this and a champion of making this work right, these are folks that
want to be included. We have witnesses that we wanted to bring on this
side and did not have the opportunity to do so. And again, it's not for
the sake of trying to create a partisan issue. We simply weren't
invited, Mr. Chairman.
So I hope in the future you'd know many of us on this side have
over years developed strong bipartisan credentials and a willingness to
discuss the complex issues in good faith. Perhaps instead of arguing
over what is the most effective measurement of success under the ESA,
we should concentrate our efforts on policies which are designed to
ensure that species never need to be listed in the first place. In 2000
Congress created the State and Tribal Wildlife Grants program to assist
states and their partners with the conservation of more than 12,000
species of fish and wildlife that are at-risk. This is the only Federal
program with the explicit goal of preventing endangered species
listings. In February of 2011 the Republican House passed H.R. 1 which
would have completely eliminated funding for the SWG program. We fought
back with wildlife conservation groups and restored funding to $62
million. Unfortunately, as a 31% cut to the program, it was a
bittersweet victory. I find it very disheartening that my friends on
the other side of the aisle would cut funding to the lone program
designed to prevent listing and then complain that too many species are
being listed. The ESA is far from perfect, but if we wish to engage in
a discussion to fix imperfections, this discussion must be broad,
bipartisan and fact based. We must take into consideration the entire
toolbox of laws at our disposal to conserve habitat while maintaining
its economic growth potential. Coming at the problem from a singular
point of view only risks calcifying opposition on either side of the
debate.
So with that I look forward to your testimony. I look forward in
the future to playing an active role in this. We want to, we need to.
My landowners want us to, my wildlife advocates and sportsmen want us
to and I am more than willing to do that. Just ask us and we'll be
there. With that I yield back.
The Chairman. All right. I thank the gentleman and just
note, in terms of our Committee, we have been working on forest
health, and this is really our first, within the Agriculture
Committee and this Subcommittee, this is really the beginning
of this process for us. Any working group that happened in the
jurisdiction of another committee just gives us an opportunity
to make sure our forests are healthy. So this is the start of
the process for us.
The chair would request that other Members submit their
opening statements for the record so the witnesses may begin
their testimony and to ensure that there is ample time for
questions.
And I would like to welcome our panel of witnesses to the
table: Mr. Jim Pena, Associate Deputy Chief, U.S. Forest
Service, and Ms. Eileen Larence, Director, Homeland Security
and Justice, U.S. Government Accountability Office. Mr. Alva
Joe Hopkins, President of the Forest Landowners Association
from Folkston, Georgia, and Dr. Greg Schildwachter, President
of the Watershed Results in Arlington, Virginia.
Written statements from the witnesses will be made part of
the record. And Mr. Pena, please begin when you are ready. We
have a light system in front of us. You will see as we get--it
will be green and kind of give you a heads up when you have
about a minute to go and it will turn yellow and red. We just
ask that--whatever thoughts you are on--you just smoothly wrap
up that thought at that point. Thank you, sir. Go ahead and
proceed.
STATEMENT OF JIM PENA, ASSOCIATE DEPUTY CHIEF, U.S. FOREST
SERVICE, U.S. DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C.
Mr. Pena. Thank you. Good morning, Chairman Thompson,
Ranking Member Walz, and Members of the Committee. I appreciate
the opportunity to discuss the Forest Service's role in
implementing the Endangered Species Act, ESA.
The ESA's purpose is to conserve threatened and endangered
species and their habitat. Managing species' habitat including
threatened and endangered species is an integral part of the
Forest Service mission. About 20 percent of the ESA's listed
species have habitat within the 193 million acres of the
National Forest and Grasslands that we manage. There are costs
associated with protecting and recovering listed species. We
have direct costs implementing the ESA and costs associated
with litigation. Sometimes there are indirect costs such as
project delays or cancellations.
The Forest Service's role in implementing the ESA is
ensuring that relevant sections of the Act are integrated into
forest plans and project decisions. The Forest Service assists
in conserving and recovering listed species under the ESA
specifically by undertaking recovery efforts as defined by the
Fish and Wildlife Service and the National Marine Fisheries
Service for listed species under Section 4 and consulting on
actions where the agency determines that the action may affect
a listed species or designate a critical habitat and to lessen
the impacts of incidental take under Section 7.
In addition to ESA, the Forest Service operates under many
other laws passed by Congress. These laws give us not only the
authority to manage our National Forests and Grasslands, they
guide us in how we manage them. Within our authorities we
manage a wide variety of resources for multiple uses, and
sometimes it is difficult to strike a balance. Sometimes
litigation results from trying to strike a balance.
According to a recent study by Miner, et al. in 2014, the
Journal of Forestry article, analyzing a 20 year period between
1989 and 2008, the majority of cases filed against the Forest
Service concern vegetation management projects alleging
violations of many laws. Cases citing ESA violations comprised
about 18 percent of all Forest Service land management cases.
During this period, the Forest Service prevailed in 52 percent
of the cases involving ESA.
The Forest Service measures some costs associated with
litigation. For example, we can account for costs associated
with the Equal Access to Justice Act which is about $875,000
per year for all land management litigation in the agency.
Other costs such as redirecting staff from other priority work
and the resulting delays or cancellations of projects are not
tracked by the agency.
The Forest Service is committed to managing the National
Forests and Grasslands on which many species depend as part of
the natural legacy that we leave for future generations.
This concludes my testimony, Mr. Chairman, and I am happy
to respond to any questions that you or other Members of the
Committee have regarding our implementation of the ESA.
[The prepared statement of Mr. Pena follows:]
Prepared Statement of Jim Pena, Associate Deputy Chief, U.S. Forest
Service, U.S. Department of Agriculture, Washington, D.C.
Introduction
Good morning, Chairman Thompson, Ranking Member Walz, and Members
of the Committee. I am Jim Pena, Associate Deputy Chief of the National
Forest System of the U.S. Forest Service, at the Department of
Agriculture (Agriculture).
Mr. Chairman, I appreciate the opportunity to discuss the Forest
Service's role in implementing the Endangered Species Act (ESA).
December 28, 2013 marked the 40th anniversary of the Endangered
Species Act (ESA). The purpose of the ESA is to conserve threatened and
endangered species and their habitat. Congress passed the ESA in 1973,
recognizing the natural heritage of the United States was of
``aesthetic, ecological, educational, recreational, and scientific
value to our nation and its people.'' Over the past 4 decades, the ESA
has effectively promoted the recovery of numerous species, such as the
Bald Eagle, the grey wolf in the Northern Rocky mountains and the
western Great Lakes, the Grizzly bear, and many others. Currently,
about 1,500 species and populations in the United States are listed as
threatened or endangered under the ESA. A species is considered
endangered if it is in danger of extinction throughout all or a
significant portion of its range. A species is listed as threatened if
it is determined that it is likely to become endangered in the
foreseeable future. About 20 percent of the ESA's listed species have
habitat within the 193 million acres of the National Forests and
Grasslands that we manage.
The Forest Service's role in implementing the ESA is ensuring that
relevant sections of the Act are integrated in our core activities,
such as forest plans and projects. Managing habitat for threatened and
endangered species is an integral part of the Forest Service mission.
In implementing the ESA, the Forest Service must work with the U.S.
Fish and Wild Service (USFWS) and National Oceanic and Atmospheric
Administration's (NOAA) Fisheries, sometimes referred to as National
Marine Fisheries Service (NMFS), who administer the Act. There are
costs associated with protecting and recovering listed species; we have
direct costs implementing the ESA in our processes and ancillary costs
associated with litigation, and sometimes there are indirect costs,
such as project delays or cancellations. I will outline briefly our
role in implementing the ESA, some of our experiences with its costs,
and close with our commitment to protecting habitat.
Forest Service Role in Implementing the ESA
The Forest Service assists in the conservation and recovery of
listed species by: undertaking recovery efforts as defined by USFWS or
NMFS for listed species (section 4); and consulting with USFWS or NMFS
on actions that the agency determines may affect a listed species or
its designated critical habitat, including, as appropriate, how to
lessen the impacts of potential take incidental to such actions
(section 7).
Land management plans under the National Forest Management Act
(NFMA) and proposed management actions utilize extensive environmental
analysis to inform our decisions. National Environmental Policy Act
(NEPA) documents are prepared by the Forest Service at the programmatic
level for forest plans, and at the site-specific level for project
decisions. Forest Service environmental analysis and decision-making
also involves compliance with several other Federal statutes such as
the Clean Air Act, Clean Water Act, and the National Historic
Preservation Act. ESA compliance plays an integral role in our NEPA
documentation requirements.
ESA is administered by USFWS and NMFS which establish the
procedural mechanisms through which ESA's substantive goals are
achieved, such as the section 7 consultation process with other Federal
agencies. The ESA implementation regulation establishes formal or
informal consultation process (section 7) between the Forest Service
and USFWS or NMFS to ensure that proposed Forest Service actions do not
jeopardize the continued existence of any listed species or its
designated critical habitat. The Forest Service makes a determination
regarding how a proposed action affects a listed species through
completion of a biological evaluation or biological assessment (e.g.,
``no effect''; ``is not likely to adversely affect''; ``is likely to
adversely affect''), and then the consultation process is initiated if
there may be an effect on this species. Consultation occurs on proposed
projects, as well as on the issuance of forest plans or plan
amendments.
The Forest Service works closely with USFWS, NMFS, and state and
local partners when listed species are at issue, particularly when a
species occurs over multiple jurisdictions. For example, earlier this
year the Oregon chub was the first endangered fish species in the
United States to meet its recovery goals under ESA and was delisted by
the USFWS. When the Oregon chub was listed in 1993 the population had
declined to under 1,000 fish in eight known locations. Now, the Oregon
chub's populations have grown to approximately 160,000 fish in 83
locations. This success was due to collaboration among private
landowners, nonprofit organizations, and state and Federal agencies.
The Forest Service's Willamette National Forest, which manages several
populations of Oregon chub in the upper Middle Fork and Coast Fork
Willamette River sub-basins has been part of this success story by
enhancing and restoring Oregon chub populations, ensuring long-term
survival on National Forest System (NFS) lands.
ESA-Related litigation
Forest Service decisions are sometimes challenged by industry,
environmental organizations, states, Tribes, local governments, or
individual citizens. Only about two percent of all agency decisions are
challenged in litigation. About 18 percent of cases filed against the
agency allege ESA violations.
According to a recently published study \1\ examining a 20 year
period from 1989-2008, the Forest Service won completely 53.8 percent
of their land management cases (plan and project), losing on some issue
in 23.3 percent and settling 22.9 percent. The Forest Service prevailed
fully in 51.8 percent of cases involving the ESA.
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\1\ Miner, A.M., R.W. Malmshiemer, and D.M. Keele. 2014. Twenty
years of Forest Service land management litigation. Journal of Forestry
p.32-40. *Note: This study measured a win for the Forest Service
conservatively, counting a case as a loss if there was any issue on
which the Forest Service did not prevail.
---------------------------------------------------------------------------
Direct and Indirect Litigation Costs
The total economic impact of all litigation, and particularly ESA-
related litigation, is hard to discern and is not tracked by the
agency. Direct and indirect litigation costs may result from judicial
orders requiring payment of attorney fees and costs to a successful
litigant. Liability for such costs and fees may arise through either
the Equal Access to Justice Act (EAJA) or the ESA. These costs result
in part from the EAJA, which allows qualified, prevailing litigants to
be reimbursed by the Federal Government for attorney fees and court
costs. The ESA authorizes courts to ``award costs of litigation
(including reasonable attorney and expert witness fees) to any party,
whenever the court determines such award is appropriate.'' \2\ The
agency also incurs costs in defending litigation, such as redirecting
staff from other priority work to prepare administrative records and
review legal briefs, but figures on such ESA-specific litigation costs
are not available. In addition, every lawsuit filed requires the
Federal Government to pay for the Department of Justice lawyers,
departmental counsel, and the Federal court system necessary to address
the case.
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\2\ 16 U.S.C. 1540(g).
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Indirect costs associated with changing, delaying, creating new, or
canceling projects due to losses in court or reaching settlement might
exceed direct litigation costs, but there is no formal accounting of
these costs.
Canada Lynx
In 2000, the USFWS added the Canada lynx to the list of threatened
species under the ESA. In 2007, the Forest Service added the Northern
Rockies Lynx Amendments to the forest plans of 18 National Forests in
the Northern Rocky Mountains. The amendments set broad standards for
protection of Canada lynx habitat. The Forest Service formally
consulted with USFWS on the adoption of the Lynx Amendments, and USFWS
issued a Biological Opinion concluding that the Lynx Amendments would
not jeopardize the continued existence of the Canada lynx.
In 2009, the USFWS expanded the designated critical habitat for the
lynx on lands in Idaho, Montana, and Wyoming. This area encompasses
parts of 11 National Forests with plans that include the Lynx
Amendments. In 2013, applying 1994 Ninth Circuit precedent, the Federal
district court for the District of Montana ruled that the 2009 critical
habitat designation requires the Forest Service to re-initiate
consultation with USFWS on the amended plans, and ordered the Forest
Service to do so. The government has appealed the district court's
decision to the Ninth Circuit. On March 11, the Ninth Circuit granted
the government's request to stay the district court's order. In
separate litigation, Forest Service ecological restoration projects
have been enjoined based on the Montana court's ruling.
In contrast, the Tenth Circuit, relying on Supreme Court precedent,
held in 2007 that re-initiation of consultation on plans is not
required. The conflict between these cases is an example of some of the
challenges that the Forest Service faces in implementing ESA.
Conclusion
The Forest Service is committed to making the ESA work for the
American people and to carrying out ESA's purpose of conserving
threatened and endangered species. Extinctions globally are occurring
at a rate that is unprecedented in human history. In passing the ESA,
Congress recognized we face an extinction crisis. The Forest Service
faces challenges with implementing the ESA and other laws. The agency
must weigh the many uses the American people want from NFS lands. Thus,
within our authority, we manage a wide variety of habitats for multiple
species and multiple uses, in many instances on the same acreage. The
Forest Service is committed to carefully managing our National Forests
and Grasslands on which many species depend, as part of the natural
legacy that we leave for future generations.
That concludes my testimony, Mr. Chairman. I am happy to respond to
any questions you and the other Members of the Subcommittee have
regarding ESA implementation.
The Chairman. Thank you, sir. Ms. Larence, you are
recognized for 5 minutes.
STATEMENT OF EILEEN R. LARENCE, DIRECTOR, HOMELAND SECURITY AND
JUSTICE, U.S. GOVERNMENT
ACCOUNTABILITY OFFICE, WASHINGTON, D.C.
Ms. Larence. Thank you. Chairman Thompson, Ranking Member
Walz, and Members of the Subcommittee, I am pleased to discuss
the results from our April 2012 report with some recent updates
on attorney fee claims and payments.
Mr. Chairman, as you know, select laws such as the
Endangered Species Act and more generally the Equal Access to
Justice Act, in part provide that the Federal Government
reimburse parties for attorney fees and costs when the parties
win a lawsuit against the government. Payments are made either
out of the Treasury Judgment Fund, which is a permanent and
indefinite appropriation, or from the respective agency's
appropriations.
The intent was to level the playing field, to make sure
that individuals or parties are not discouraged from suing
agencies for unreasonable program activities for fear of the
costs of doing so. However, as you recognize, Mr. Chairman,
some in Congress were also concerned that parties such as
environmental groups were using taxpayer dollars from agencies'
limited funding to sue the government.
We were asked to determine the extent to which the
Departments of Agriculture and Interior had information
available on attorney fee claims and payments for Fiscal Years
2000 through 2010. My testimony today summarizes our findings
in the Agriculture Department.
In a nutshell, all but four of Agriculture's 33 agencies
and offices in our review did not track these attorney fees,
costs and payments. Therefore, neither we nor Agriculture could
comprehensively answer Congress' questions about how many
payments parties claimed, how much Agriculture paid out, to
whom and under what statute. Agencies said they did not track
these data generally because they weren't required to. They
didn't have many of these lawsuits, payments were minimal and
they did not need the data on payments to manage.
On the other hand, the four entities that did track or
compile these data said that doing so increased transparency
and accountability and provided these entities with data to
develop budget estimates among other things. We know that the
Congress has also considered legislative proposals aimed at
increasing the transparency and accountability over such fees,
costs and payments.
Focusing more specifically now on the four entities that
did track or compile these data, even their information was
incomplete. These entities did not always know the amount of
claims denied, who received payments, the amounts paid, which
could differ from the amounts awarded and the authorizing
statute.
Nevertheless, we were able to report some limited data. For
example, a manager within the Forest Service collected portions
of these data in an electronic spreadsheet to help the agency
track and assist the claims and payments, such as determining
if fee amounts for new claims were reasonable based on past
claims. We reported that the Forest Service faced about $16.3
million in attorney fees and costs in 241 environmental cases
during the 11 years in our review.
The Forest Service did not track the associated statutes,
but representatives surmise that most claims were likely under
the National Environmental Policy Act, the National Forest
Management Act or the Endangered Species Act. Individual award
amounts ranged from $350 to about $500,000, and payments could
have come from either of the four services' appropriations or
the Judgment Fund.
Beginning in Fiscal Year 2009 in response to an
Appropriations Committee request, the Forest Service now uses a
unique code within Agriculture's financial management system to
attract attorney fee payments under the Equal Access to Justice
Act that come from the agency appropriations. The Forest
Service in its Fiscal Year 2014 budget justification reported
that it had annual payments of about $1.5 million, $\1/2\
million, and $1.6 million respectively from Fiscal Years 2011
to 2013 under that Act.
We also reported that over 10 years through September 2010
Treasury made 187 payments totaling about $16.9 million from
its Judgment Fund on behalf of Agriculture. The highest
payments were about $9 million under the Equal Credit
Opportunity Act, $4.4 million under the Civil Rights Act and
$1.6 million under the Endangered Species Act.
Finally, we recognize that litigation costs are broader
than attorney fees, and they include costs such as damages
awarded and hours that agency personnel spend preparing for a
case. While these costs were not a focus in our prior review,
we have learned that USDA and the Forest Service likewise
tracks some but not all of these broader costs.
Mr. Chairman, this concludes my testimony, and I would be
happy to answer any questions.
[The prepared statement of Ms. Larence follows:]
Prepared Statement of Eileen R. Larence, Director, Homeland Security
and Justice, U.S. Government Accountability Office, Washington, D.C.
USDA Litigation_Limited Data Available on USDA Attorney Fee Claims and
Payments
GAO Highlights
Highlights of GAO-14-458T (http://www.gao.gov/products/GAO-14-
458T), a testimony before the Subcommittee on Conservation, Energy, and
Forestry, Committee on Agriculture, House of Representatives
Why GAO Did This Study
In the United States, parties involved in Federal litigation
generally pay their own attorney fees. There are many exceptions to
this general rule where ``fee-shifting'' statutes authorize the award
of attorney fees to a successful, or prevailing, party. Some of these
provisions also apply to the Federal Government when it loses a case.
In 1980, Congress passed EAJA to allow parties that prevail in cases
against Federal agencies to seek reimbursement from the Federal
Government for attorney fees, where doing so was not previously
authorized. Although all Federal agencies are generally subject to, and
make payments under, attorney fee provisions, some in Congress have
expressed concerns about the use of taxpayer funds to make attorney fee
payments with agencies' limited funding. These concerns include that
environmental organizations are using taxpayer dollars to fund lawsuits
against the government, including against USDA.
This statement addresses the extent to which USDA had information
available on attorney fee claims and payments made under EAJA and other
fee-shifting statutes for Fiscal Years 2000 through 2010. This
statement is based on GAO's April 2012 report on USDA and the
Department of Interior attorney fee claims and payments and selected
updates conducted in March 2014. To conduct the updates, among other
things, GAO reviewed Forest Service budget documents for Fiscal Years
2014 and 2105 and interviewed Forest Service officials.
View GAO-14-458T (http://www.gao.gov/products/GAO-14-458T). For
more information, contact Eileen R. Larence at (202) 512-8777 or
[email protected].
What GAO Found
In April 2012, GAO found that the Department of Agriculture (USDA)
did not report any aggregated data on attorney fee claims and payments
made under the Equal Access to Justice Act (EAJA) and other fee-
shifting statutes for Fiscal Years 2000 through 2010, but USDA and
other key departments involved--the Departments of the Treasury and
Justice--maintained certain data on individual cases or payments in
several internal agency databases. However, collectively, these data
did not capture all claims and payments. USDA officials stated at the
time that given the decentralized nature of the department and the
absence of an external requirement to track or report on attorney fee
information, the information was not centrally tracked and decisions
about whether to track attorney fee data and the manner in which to do
so were best handled at the agency level. Officials from 29 of the 33
USDA agencies GAO contacted for its April 2012 report stated that they
did not track or could not readily provide GAO with this information.
The remaining four USDA agencies had mechanisms to track information on
attorney fees, were able to compile this information manually, or
directed GAO to publicly available information sources. GAO found that
the Forest Service was the only program agency within USDA that was
able to provide certain attorney fee data across the 11 year period.
GAO reported in April 2012 that about $16.3 million in attorney fees
and costs in 241 environmental cases from Fiscal Years 2000 through
2010 was awarded against or settled by the Forest Service (see fig.
below).
Attorney Fees and Costs Awarded against the Forest Service in
Environmental Cases and Number of Cases, Fiscal Years 2000
through 2010
Source: GAO analysis of Forest Service data.
Note: Forest Service data may include attorney fees authorized
by underlying statutes, EAJA subsection (b), and EAJA
subsection (d); as such, some funds may have been paid by the
Judgment Fund, as opposed to agency appropriations.
However, the extent to which the four USDA agencies had attorney
fee information available for the 11 year period varied. Given this
limitation as well as others, such as inconsistent availability of
payment data, GAO concluded that it was difficult to comprehensively
determine the total number of claims filed for attorney fees, who
received payments, in what amounts, and under what statutes. GAO did
not make any recommendations in its April 2012 report.
Chairman Thompson, Ranking Member Walz, and Members of the
Subcommittee:
Thank you for the opportunity to discuss our work on attorney fee
claims and payments resulting from litigation involving the Department
of Agriculture (USDA) and, in particular, the Forest Service. In the
United States, parties involved in Federal litigation generally pay
their own attorney fees. There are many exceptions to this general rule
where statutes authorize the award of attorney fees to a successful, or
prevailing, party. Some of these provisions also apply to the Federal
Government when it loses a case. In 1980, Congress passed the Equal
Access to Justice Act (EAJA) to allow parties that prevail in cases
against Federal agencies to seek reimbursement from the Federal
Government for attorney fees, where doing so was not previously
authorized.\1\ The premise of EAJA was to help ensure that decisions to
contest governmental actions are based on the merits and not the cost
of litigation, and, in enacting the law, Congress found that because of
the greater resources and expertise of the Federal Government, the
standard for an award of fees against it should be different from the
standard governing an award against a private litigant, in certain
situations. Although all Federal agencies are generally subject to, and
make payments under, attorney fee provisions, some in Congress have
expressed concerns about the use of taxpayer funds to make attorney fee
payments with agencies' limited funding. These concerns include that
environmental organizations are using taxpayer dollars to fund lawsuits
against the government, particularly against the USDA, the Department
of the Interior (Interior), and the Environmental Protection Agency
(EPA).\2\
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\1\ Pub. L. No. 96-481, tit. II, 94 Stat. 2321, 2325 (1980)
(codified as amended at 5 U.S.C. 504; 28 U.S.C. 2412).
\2\ See for example, GAO, Private Attorneys: Selected Attorneys'
Fee Awards Against Nine Federal Agencies in 1993 and 1994, GAO/GGD-96-
18 (http://www.gao.gov/products/GAO/GGD-96-18) (Washington, D.C.: Oct.
31, 1995), and Equal Access to Justice Act: Its Use in Selected
Agencies, GAO/HEHS-98-58R (http://www.gao.gov/products/GAO/HEHS-98-58R)
(Washington, D.C.: Jan. 14, 1998).
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My testimony today addresses the extent to which USDA had
information available on attorney fee claims and payments made under
EAJA and other fee-shifting statutes for Fiscal Years 2000 through
2010.\3\ This statement is based on our April 2012 report on USDA
Interior attorney fee claims and payments made under EAJA and other
fee-shifting statutes and selected updates conducted in March 2014.\4\
To conduct the updates, including assessing the reliability of the
updated Forest Service data, we reviewed the Forest Service's Fiscal
Years 2014 and 2015 budget justifications to obtain Fiscal Year 2011
though 2013 EAJA data and interviewed Forest Service officials to
confirm that the Forest Service continues to use the same methods to
track attorney fee payments that we reported in April 2012. In
addition, we reviewed an August 2011 GAO report on environmental
litigation involving EPA.\5\ Information about the scope and
methodology of the prior GAO reports is included in the April 2012 and
August 2011 reports. We conducted this work in accordance with all
sections of GAO's Quality Assurance Framework that were relevant to our
objective. The framework requires that we plan and perform the
engagement to obtain sufficient and appropriate evidence to meet our
stated objectives and to discuss any limitations in our work. We
believe that the information and data obtained, and the analysis
conducted, provide a reasonable basis for any findings and conclusions
in this product.
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\3\ A ``fee-shifting'' statute allows for the payment of attorney
fees by a losing party to a prevailing party.
\4\ GAO, Limited Data Available on USDA and Interior Attorney Fee
Claims and Payments, GAO-12-417R (http://www.gao.gov/products/GAO-12-
417R) (Washington, D.C.: Apr. 12, 2012).
\5\ GAO, Environmental Litigation: Cases against EPA and Associated
Costs over Time, GAO-11-650 (http://www.gao.gov/products/GAO-11-650)
(Washington, D.C.: Aug. 1, 2011).
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Background
USDA has a broad and far-reaching mission--including improving farm
economies and the nation's nutrition, enhancing agriculture trade, and
protecting the nation's natural resource base and environment--and the
department may face the prospect of litigation over its regulations and
other actions. As with other Federal agencies, where USDA is engaged in
judicial litigation--cases brought in a court, including those that are
settled--as a plaintiff or a defendant, the Department of Justice (DOJ)
generally provides legal representation,\6\ and USDA provides technical
and subject matter expertise and assists with the case, such as by
drafting documents for DOJ to file and conducting research.\7\
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\6\ According to DOJ officials, three divisions litigate on behalf
of USDA: (1) the Environment and Natural Resources Division handles
most of the work on environmental litigation cases; (2) the Civil
Division handles a broad range of litigation, including commercial,
personnel, torts, and consumer protection litigation; and (3) the
Executive Office for United States Attorneys liaises with DOJ and the
94 U.S. Attorneys Offices that represent the United States in civil and
criminal matters across the nation and its territories. The cases that
the Attorneys' Offices handle overlap in some areas of law with those
of the other two divisions.
\7\ The default rule is that DOJ is responsible for all litigation
on behalf of the United States and its administrative agencies. 28
U.S.C. 516, 519; 5 U.S.C. 3106. There are agencies, however, that
have independent litigation authority.
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The types of actions that involve USDA are varied. For example,
lawsuits may involve challenges to certain agency actions--such as
under provisions of the Endangered Species Act, which permits parties
to file challenges to government actions affecting threatened and
endangered species, or under the National Environmental Policy Act,
which requires Federal agencies to prepare a statement identifying the
environmental effects of major actions they are proposing or ones for
which third parties seek Federal approval or funding and that
significantly affect the environment. Cases may involve other statutes,
such as title VII of the Civil Rights Act, which prohibits
discrimination in employment. Additionally, the Administrative
Procedure Act authorizes challenges to certain agency actions that are
considered final actions, such as rulemakings and decisions on permit
applications.
With respect to the payment of attorney fees, in the context of
judicial cases, the law generally provides for three ways that
prevailing parties can be eligible for the payment of attorney fees by
the Federal Government.\8\ First, many statutes contain provisions
authorizing the award of attorney fees from a losing party to a
prevailing party; many of these provisions apply to the Federal
Government. Second, where there is a fee-shifting statute that allows
for the payment of attorney fees by a losing party to a prevailing
party but is not independently applicable to the Federal Government,
EAJA provides that the government is liable for reasonable attorney
fees to the same extent as a private party (i.e., claims paid under
EAJA subsection (b)).\9\ Under these first two ways, when a party
prevails in litigation against the government and is awarded attorney
fees under court order or settlement,\10\ the amounts generally are
paid from the Department of the Treasury's (Treasury) Judgment Fund (a
permanent, indefinite appropriation that pays judgments against Federal
agencies that are not otherwise provided for by other
appropriations).\11\ Third, EAJA provides that in any civil action
where there is no fee-shifting statute, prevailing parties generally
shall be awarded attorney fees when the government cannot prove that
its action was substantially justified (i.e., claims paid under EAJA
subsection (d)).\12\
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\8\ Under 28 U.S.C. 2414, except as otherwise provided by law,
compromise settlements of claims referred to the DOJ for defense of
imminent litigation or suits against the United States or its agencies,
shall be settled and paid in a manner similar to judgments. Thus, when
DOJ settles cases on behalf of a Federal agency, out-of-court and
court-approved settlements may provide for payment of attorney fees and
costs, depending on the underlying claims.
\9\ This provision provides that the United States is liable for
such fees and expenses to the same extent that any other party would be
liable under the common law or the terms of any statute that
specifically provides for such an award. 28 U.S.C. 2412(b).
\10\ For purposes of this statement, we use ``awarded'' to reflect
attorney fees that are awarded by administrative or court decision as
well as those provided in settlements.
\11\ 31 U.S.C. 1304. Regarding payments of attorney fees under
the statutory fee-shifting provisions independently applicable to the
Federal Government, these are generally paid from the Judgment Fund
unless the statute at issue provides otherwise. Regarding EAJA
subsection (b) payments, an exception is that where a court finds an
agency acted in bad faith, the payment cannot be made from the Judgment
Fund.
\12\ In these cases, EAJA limits the prevailing plaintiff's
eligibility to receive payment by defining (at the time the lawsuit is
filed) an eligible party as either an individual with a net worth of $2
million or below or a business owner or any partnership, corporation,
association, local government, or organization with a net worth of $7
million or below and 500 or fewer employees. However, tax-exempt
nonprofit organizations and certain agriculture cooperative
associations are considered eligible parties regardless of net worth.
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In adversary administrative adjudications--generally, proceedings
that are brought in a special agency forum, rather than in a court, and
in which the government position is represented--a separate provision
of EAJA applies. Specifically, EAJA provides that in adversary
adjudications, the government is liable to a prevailing party for
reasonable attorney fees when the government cannot prove that its
action was substantially justified. These awards or settlements are
paid from the losing agency's appropriation.\13\ When such fees are
awarded or agreed to in a settlement, they are generally paid from the
agency's appropriated funds.\14\
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\13\ 5 U.S.C. 504(a), (b)(1)(C).
\14\ Certain statutes, such as the Small Claims Act, 31 U.S.C.
3723(c), and Federal Tort Claims Act, 28 U.S.C. 2672, authorize the
payment of administrative claims from the Judgment Fund. However, in
our April 2012 report, we did not identify any attorney fee payments
that were paid under these statutes.
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In this statement, we refer to attorney fees anytime fees were
paid, regardless of the source of law authorizing the payment--
independently applicable statutory fee-shifting provisions, EAJA
subsections (b) or (d), or EAJA's adversarial adjudication provisions--
and whether awarded by a court or administrative forum or provided in a
settlement. The payment process differs, however, based on the statute
involved and whether the award was made at the administrative level or
through the courts, as shown in Figure 1.
Figure 1: Typical Process for Administrative and Judicial Cases
Resulting in Attorney Fee Payments
Source: GAO analysis of DOJ, Treasury, USDA, and Interior
information.
Note: According to the Department of Agriculture, in some
instances fees are paid initially out of the Judgment Fund but
ultimately out of agency appropriations through a reimbursement
to the Judgment Fund.
Most USDA Agencies Did Not Have Readily Available Attorney Fee
Information
In April 2012, we found that USDA did not report any aggregated
data on attorney fee claims and payments made under EAJA and other fee-
shifting statutes for Fiscal Years 2000 through 2010, but USDA and
other key departments involved--Treasury and DOJ--maintained certain
data on individual cases or payments in several internal agency
databases.\15\ However, collectively, these data did not capture all
claims and payments. USDA officials stated at the time that given the
decentralized nature of the department and the absence of an external
requirement to track or report on attorney fee information, the
information was not centrally tracked and decisions about whether to
track attorney fee data and the manner in which to do so were best
handled at the agency level.\16\
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\15\ GAO-12-417R (http://www.gao.gov/products/GAO-12-417R).
\16\ From 1981 through 1995, EAJA provided for government-wide
reporting on claims paid under EAJA in the form of two annual reports
to Congress. In 1995, EAJA reporting requirements were repealed.
Federal Reports Elimination and Sunset Act of 1995, Pub. L. No. 104-66,
1091, 3003, 109 Stat. 707, 722, 734. The financial management system
for USDA includes information on litigation costs. However, the
information in the system does not isolate attorney fees and costs from
damages (i.e., payments awarded to prevailing parties as a result of
the case, which are not related to attorney fees or costs).
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Accordingly, for our April 2012 report, we contacted 33 agencies
within USDA to obtain their available attorney fee information.\17\ In
response, officials from 29 of the 33 USDA agencies told us that they
did not track or could not readily provide us with this information.
These officials generally stated that this is because their agencies
deal with few or no attorney fee cases, the payment amounts are
minimal, another agency within the department tracked this, or the
agency did not need this information for internal management purposes.
For example, an Acting Director in the USDA Farm Service Agency stated
that because so few cases are filed against the agency, there is little
value in tracking the data. We reported that the remaining four USDA
agencies we contacted either had mechanisms to track information on
attorney fees, or were able to compile this information manually using
hard copy files, or directed us to publicly available sources where we
could obtain the information. These four agencies were: (1) the
National Appeals Division (NAD), an agency that conducts hearings of
administrative appeals of adverse actions by certain USDA agencies; (2)
the Office of Assistant Secretary for Civil Rights (OASCR) an agency
that adjudicates employee discrimination complaints; (3) USDA's Office
of Administrative Law Judges (OALJ); \18\ and (4) the Forest Service,
which is responsible for managing its lands for various purposes--
including recreation, grazing, and timber harvesting--while ensuring
that such activities do not impair the lands' long-term productivity.
In our April 2012 report, we identified one program agency at USDA--the
Forest Service--that maintained attorney fee data. The Forest Service
maintained the data in two different information sources: (1) a
spreadsheet that tracked the amounts of attorney fees and costs awarded
or settled, among other items, for environmental litigation, including
cases filed under the National Environmental Policy Act, the National
Forest Management Act, and the Endangered Species Act; and (2) a
separate accounting code in the USDA financial database.\19\ We discuss
these two sources in further detail below. We reported that the
attorney information maintained by these four agencies varied with
respect to the time frame for which data were available, whether the
agency had information on the amount awarded versus the amount paid,
and the statutes under which the cases were brought, among other
information.
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\17\ USDA agencies and offices are referred to as agencies for
purposes of this statement.
\18\ OALJ directed us to publicly available sources on cases.
\19\ This is USDA's budget object classification code 4236.
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Further, in April 2012, we reported that given the differences in
attorney fee information available across the four USDA agencies and
the limitations identified below, it was difficult to comprehensively
determine (1) the total number of claims filed for attorney fees, (2)
who received payments, (3) in what amounts, and (4) under which
statutes. Specifically, we found:
The total number of claims filed for attorney fees could not
be determined. Two USDA agencies--NAD and OALJ--that provided
information on attorney fee data did not maintain data about
claims for attorney fees that were filed but denied. As a
result, we concluded that the number of claims filed may be
understated for these agencies.
Information on who received the payment was not always
recorded. Payment of attorney fees may be made to one or more
parties or directly to the attorney. Agencies that had
information on attorney fees sometimes identified a particular
party in the case, as opposed to everyone who received
payments. For example, we reported that the Forest Service
spreadsheet listed 241 cases with attorney fees all of which
identified the first-named party in the case, but 46 cases did
not identify the payee. Given that attorney fees may be paid to
the first named party, to other parties in the case, or to
attorneys, we concluded that the first named party may not
reliably identify who actually received the attorney fee
payment.\20\
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\20\ For example, for our April 2012 report, we reviewed 32
attorney fee and cost payments within the Forest Service's financial
database. For 22 of the 32 payments, the payee did not match the first
named party identified in the Forest Service spreadsheet. We could not
make a determination for two payments because the data did not include
sufficient information. Another payment was excluded from the analysis
because it pertained to an administrative case. In the remaining seven
payments, the payee and party matched.
Data on actual attorney fee payments made were not
consistently available. We also reported that two of the four
agencies--NAD and OALJ--provided information on award or
settlement amounts rather than attorney fee payment
amounts.\21\ Amounts awarded reflect the attorney fee award
included in a decision or settlement, and amounts paid reflect
the actual amount the agency paid. According to DOJ officials
at the time, award or settlement amounts may differ from
payment amounts because award amounts may increase because of
added interest expense before payment is disbursed. Moreover,
DOJ and agency officials stated that award or settlement
amounts may increase or decrease as a result of subsequent
legal proceedings (e.g., a prevailing party could appeal the
award amount, and an appeal could change the amount the agency
ultimately paid). In addition, decisions and settlement
agreements may not separate attorney fees and costs from
damages, a fact that prevents agencies and Treasury from
knowing exactly how much was allocated for each purpose.\22\ We
concluded that in these instances, the attorney fee amounts
cannot be determined.
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\21\ The Forest Service spreadsheet data included award, not
payment, amounts. However, the Forest Service also began capturing EAJA
attorney fee payment data in the USDA financial database in Fiscal Year
2009. OASCR maintained data on both award or settlement amounts and
attorney fee payments during Fiscal Years 2005 through 2010.
\22\ Damages are a distinct type of monetary award from attorney
fees or costs. Some cases are resolved by settlements or decisions that
provide for damages and attorney fees and costs as one lump sum.
Statutes under which the case was brought were not always
recorded. Last, we found that the Forest Service did not track
information on the statutes underlying the award or payment
because the Forest Service financial database does not have a
statute field, and according to the official who collected the
spreadsheet data, he did not research statute information
because of time constraints. However, the Forest Service
official estimated that between \2/3\ and \3/4\ of the Forest
Service natural resource cases involve challenges under the
National Environmental Policy Act, the National Forest
Management Act, the Endangered Species Act, or a combination of
---------------------------------------------------------------------------
these Acts.
In our April 2012 report, we found that the Forest Service was the
only program agency that was able to provide us with attorney fee data
across the 11 year period and gathered information on attorney fees and
cost awards associated with cases from three sources--Forest Service
regional officials, a Forest Service-commissioned university study, and
publicly available court documents. Forest Service officials maintained
this information in a spreadsheet that tracked the amounts of attorney
fees and costs awarded or settled, among other items, for environmental
litigation, including cases filed under the National Environmental
Policy Act, National Forest Management Act, and Endangered Species Act.
Forest Service officials told us at the time that they undertook the
effort to compile information on cases resulting in attorney fee and
cost awards to provide internal guidance to Forest Service management.
For example, we reported that the information on attorney fee and cost
awards helped the agency make informed decisions on whether proposed
fees in ongoing cases were reasonable in light of recent cases
involving similar challenges. We also reported on several limitations
of the data that were identified by the official who developed the
spreadsheet. Specifically:
The list of cases was not intended to be a definitive list
of all attorney fee and cost payments and the payments should
be considered in totality rather than case by case.
The data include only environmental cases. Accordingly, non-
environmental cases, such as those brought under the Freedom of
Information Act (FOIA), Equal Employment Opportunity Act, and
other civil rights statutes, were not included.
Not all of the attorney fees and costs included in the
spreadsheet were paid from Forest Service appropriations, as
Treasury may have paid some of the attorney fees and costs from
its Judgment Fund.\23\
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\23\ Although the Judgment Fund database generally identifies
portions of a payment attributed to attorney fees, costs, and other
categories, in conducting our review for the April 2012 report, we
could not match the Forest Service spreadsheet data with the Judgment
Fund in order to isolate attorney fees because the data sets did not
have a common identifier. Additionally, the Forest Service spreadsheet
did not include the source of the attorney fee payments.
In some instances, award or settlement amounts may be
overstated. Specifically, court documents Forest Service
officials reviewed to compile the data do not always break out
award amounts to be paid by separate defendants. For example,
if a party sued the Forest Service and Interior's U.S. Fish and
Wildlife Service and prevailed, both agencies might need to pay
attorney fees and costs if they lost, but the court might not
specify the amount each agency is to pay. In these instances,
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the data assumed the Forest Service paid the total amount.
Using the Forest Service's spreadsheet data, we reported that about
$16.3 million in attorney fees and costs in 241 environmental cases
from Fiscal Years 2000 through 2010 was awarded against or settled by
the Forest Service.\24\ Figure 2 shows the amounts of attorney fees
awarded and number of cases at the Forest Service by fiscal year.
---------------------------------------------------------------------------
\24\ Unless otherwise noted, all figures reported in this statement
are in constant 2010 dollars.
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Figure 2: Attorney Fees and Costs Awarded Against the Forest Service in
Environmental Cases and Number of Cases, Fiscal Years 2000
Through 2010
Source: GAO analysis of Forest Service data.
Note: Forest Service data may include attorney fees authorized
by underlying statutes, EAJA subsection (b), and EAJA
subsection (d); as such, some funds may have been paid by the
Judgment Fund, as opposed to agency appropriations.
Figure 2 shows that the greatest number of cases was concluded in
Fiscal Year 2006 (31 cases), and the awards against the Forest Service
were greatest in 2007 ($2.3 million). Additionally, we reported that
the awards ranged from $350 to about $500,000, and that larger awards
may skew the data for the year in which the Forest Service made those
awards or settlements. For example, in 2010, one payment accounted for
over $400,000 of the $1.1 million (about 36 percent) in total awards.
Our April 2012 report found that in March 2009, the Forest Service
began tracking EAJA payments under a separate accounting code in the
USDA financial database, in addition to the Excel spreadsheet. These
data show that the Forest Service paid about $2.3 million in 32 cases
from March 2009 through September 2010.\25\ In April 2013, the Forest
Service publicly reported information on the agency's EAJA attorney fee
payments.\26\ Specifically, in its Fiscal Year 2014 budget
justification, the Forest Service reported that it had 15 EAJA cases in
Fiscal Year 2011 (awarding about $1.5 million) and 11 cases in 2012
(awarding about $565,000). According to the Forest Service's Fiscal
Year 2015 budget justification, the agency had 18 EAJA cases in 2013,
awarding about $1.6 million.
---------------------------------------------------------------------------
\25\ Most payments (29 of 32) in the Forest Service financial
database were also included with the 241 cases in the spreadsheet.
\26\ The Forest Service began publicly reporting EAJA attorney fee
payments in response to the House report accompanying the Department of
the Interior, the Environmental Protection Agency, and Related Agencies
appropriations bill for Fiscal Year 2012, which directed Forest
Service, Interior bureaus, and EPA to provide to the House and Senate
Committees on Appropriations and the public specific information
related to attorney fee payments made under EAJA. H.R. Rep. No. 112-
151, at 8-9 (2011). See also H.R. Rep. 112-331, at 1046 (2011) (Conf.
Rep.).
---------------------------------------------------------------------------
In April 2012, we also reported that Treasury maintains certain
data on some USDA cases involving attorney fee payments. In judicial
cases where payments from the Judgment Fund are authorized, DOJ
officials submit the payment information to Treasury using standardized
forms, and Treasury processes the payment and typically informs
relevant agencies when it releases the payment to the payee.
Specifically, we found that Treasury made 187 payments totaling $16.9
million on behalf of USDA from March 2001 through September 30, 2010.
These payments were most frequently made in connection with litigation
brought under the Equal Credit Opportunity Act, Title VII of the Civil
Rights Act of 1964, FOIA, or the Endangered Species Act, as shown in
Table 1. Treasury made 88 of the 187 payments as a result of a class
action lawsuit on behalf of black farmers alleging discrimination.\27\
---------------------------------------------------------------------------
\27\ See Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999), aff'd
206 F.3d 1212 (D.C. Cir. 2000); see also, Congressional Research
Service, The Pigford Cases: USDA Settlement of Discrimination Suits by
Black Farmers (2011).
Table 1: Statute Under Which Case Was Brought, Amount Paid, and Number
of Payments Paid by Treasury from the Judgment Fund on Behalf of USDA,
March 2001 Through September 2010
------------------------------------------------------------------------
Attorney fees Number of
Statute under which case was brought a and costs payments
------------------------------------------------------------------------
Equal Credit Opportunity Act, 15 U.S.C. $9,190,168 92
1691e
Civil Rights Act Title VII, 42 U.S.C. 4,444,604 39
2000e-16
Endangered Species Act, 16 U.S.C. 1540 1,628,215 16
Freedom of Information Act, 5 U.S.C. 449,614 21
552
Clean Water Act, 33 U.S.C. 1365 366,992 5
Tucker Act (inverse condemnation & other 343,687 1
claims), 28 U.S.C. 1491
Fair Labor Standards Act, 29 U.S.C. 282,093 1
216
Payments for which statute could not be 93,909 6
determined
Rehabilitation Act (disability 51,934 2
discrimination), 29 U.S.C. 791, 794a
Bandelier National Monument 50,000 1
Administrative Improvement and
Watershed Protection Act of 1998, 16
U.S.C. 698v-2, 40 U.S.C. 3114
Tucker Act, 28 U.S.C. 1346 12,154 1
Back Pay Act, 5 U.S.C. 5596 6,429 1
Privacy Act, 5 U.S.C. 552a 6,170 1
-------------------------------
Total $16,925,969 187
------------------------------------------------------------------------
Source: GAO analysis of Treasury data.
a Statutes are as reported in Treasury's Judgment Fund Internet Claims
System. For payments associated with inverse condemnation claims (an
action brought by a property owner for compensation from a
governmental entity that has taken the owner's property without
bringing formal condemnation proceedings), statutes are as identified
in publicly accessible court records.
In April 2012, we also reported on the amount and number of
payments Treasury made on behalf of USDA, by fiscal year, as shown in
Figure 3.
Figure 3: USDA Attorney Fees Paid and Number of Payments from
Treasury's Judgment Fund, Fiscal Years 2001 Through 2010
Source: GAO analysis of Treasury data.
Specifically, Figure 3 shows that Treasury made the greatest number
of payments on behalf of USDA in Fiscal Year 2005 (24 payments) and
Treasury paid the highest amount of attorney fees and costs on behalf
of USDA in 2003 ($3 million). We found that the payments ranged from
about $175 to about $1.1 million, and that larger payments may skew the
data for the year in which Treasury made those payments. For example,
in 2008, one payment totaling about $1.1 million accounted for about
half of the $2.3 million in total payments. Further, 11 of the 13
Fiscal Year 2010 cases were payments stemming from a class action
lawsuit filed by black farmers and made up about $1.5 million of the
$1.6 million in payments for that year.\28\
---------------------------------------------------------------------------
\28\ Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999).
---------------------------------------------------------------------------
In addition, we found in April 2012 that DOJ maintains certain data
on some USDA cases involving attorney fee payments, but DOJ's data are
not readily retrievable or complete. In particular, DOJ has internal
agency databases that capture information on individual court cases,
but officials stated at the time that these databases do not reliably
capture attorney fees and costs.\29\ For example, we reported that DOJ
officials said that their databases were designed for internal
management purposes and not for agency-wide statistical tracking. Over
time, some EAJA data have been entered into the databases; however, the
agency does not have a mechanism for determining what percentage of
total EAJA awards is in the database or if the data were entered
consistently. According to a senior DOJ official, DOJ is not required
to enter EAJA award data into its database. We concluded that because
DOJ handled tens of thousands of cases over the 11 year period on
behalf of USDA, we could not readily or systematically review all of
the case files for our April 2012 review to determine the attorney fee
awards.
---------------------------------------------------------------------------
\29\ Specifically, DOJ officials said at the time that they are not
in the best position to collect and report information on attorney fees
and costs because they are often not aware of administrative cases.
---------------------------------------------------------------------------
Litigation costs are broader than attorney fees; they may include
damages awarded to the prevailing party, personnel hours that USDA
program staff and attorneys spent, and DOJ attorney costs. Our April
2012 report on USDA attorney fee payments did not address the extent to
which USDA and DOJ are capturing these broader costs because we focused
specifically on attorney fee claims and payments. However, through the
course of our review, we found that some information on these broader
costs is available. For example, we reported that USDA has an
accounting code in its financial database for tracking the costs of
litigation. This code (4230) captures information on litigation costs,
including attorney fees awards, damages and other costs.\30\ Like
USDA's code that captures attorney fee payment information described
earlier (4236), this code does not differentiate the statute under
which agencies made such payments. In March 2014, Forest Service
officials confirmed that the agency is using these codes and also
stated that the agency does not track other litigation costs, such as
the cost or time associated with the support provided to DOJ in
preparation for litigation, because the litigation specialists who
assist DOJ with these cases are salaried employees. In addition, in
August 2011, we reported that DOJ maintains some data on the number of
hours attorneys devote to environmental litigation defending EPA.\31\
Specifically, the Environment and Natural Resources Division's case
management system contains information on the number of hours the
division's attorneys spent working on environmental litigation
defending EPA. However, we reported that the U.S. Attorneys' Office's
database does not contain information on attorney hours worked by case,
which meant that in our prior report on EPA litigation, we could not
determine the time these attorneys spent on each case.
---------------------------------------------------------------------------
\30\ Other costs includes court costs, such as filing fees and
reporting fees, and attorney expenses, such as the cost for expert
witnesses, telephone, postage, travel, copying, and computer research.
\31\ GAO-11-650 (http://www.gao.gov/products/GAO-11-650).
Chairman Thompson, Ranking Member Walz, and Members of the
Subcommittee, this completes my prepared statement. I would be happy to
respond to any questions you may have at this time.
Contacts and Acknowledgments
For further information on this statement, please contact Eileen R.
Larence at (202) 512-8777 or [email protected]. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this statement. Individuals making key contributions
to this statement include Maria Strudwick (Assistant Director), Paul
Hobart, Ron La Due Lake, Jessica Orr, Janet Temko, and Ellen Wolfe.
The Chairman. Thank you, Ms. Larence. I appreciate it. Mr.
Hopkins, you are now recognized for 5 minutes.
STATEMENT OF ALVA J. ``JOE'' HOPKINS III, PRESIDENT, FOREST
LANDOWNERS ASSOCIATION, FOLKSTON, GA
Mr. Hopkins. Good morning. The Forest Landowners
Association are landowners who own and operate over 40 million
acres of private land in the United States. I am the manager of
our family timberland, some of which have been owned for over
100 years.
As recently as 2 weeks ago, a coalition of prominent
activist groups sent letters to 19 forest landowners and timber
companies whom the activists believed might be considering the
purchase of five parcels of forestland that were for sale. The
seven-page letter warns that if you purchase any of these
parcels, we intend to commence litigation to obtain an
injunction to prevent you from taking any action that would
result in harm to or take of a threatened or endangered
species. The letter also states that in the event of such
litigation, the groups will seek to recover their costs and
fees as well as the fees of their expert witness under the
citizen enforcement provisions of the ESA.
These threats were made despite the fact that, as the
letter concedes, the listed species had not been located on
more than \1/2\ the parcels of land. Needless to say, the cost
to a private landowner of defending such a lawsuit, let alone
facing the prospect of future litigation over the other side's
costs and fees is daunting.
Now such tactics will increase in my part of the country is
also a real concern to forest landowners. The Southeast
Regional Office of U.S. Fish and Wildlife Service has been
swamped by lawsuits from activist groups that are designed to
trigger the obligation to make the decisions about whether to
list a species under the inflexible and very tight time-frames
provided for by the ESA. Presently, the Southeast Region is
obligated to make decisions regarding whether or not to list
more than 400 species in over 12 states in the Southeast.
Massive decisions are being faced by the Fish and Wildlife
regions across the country. Very little is known or publicly
available about many of the species. In fact, in many cases,
simply finding and making a proper identification of the
species in the wild requires a Ph.D. in biology. Yet, upon the
listing of any of these species, the full range of severe civil
and criminal penalties provided by the ESA come into play, both
for harm to the species itself as well as its critical habitat,
even though the species itself is not present in that habitat.
In short, private forest landowners are greatly concerned
that the Draconian one-size-fits-all approach of the ESA has
resulted in it being used primarily as a powerful tool in the
hands of those who would halt land management activities while
the actual needs of the species, including humans who inhabit
the land, have become secondary.
On a more personal note, in March of 2000 we had a
devastating wildfire that destroyed a portion of our family
timberland that contained a colony of red-cockaded woodpeckers.
Most of the trees were killed that day. The rest will die over
the next few months. And the woodpecker cavity trees were
killed. I immediately sought help from the Fish and Wildlife
Service to determine what I could do to avoid a taking and was
able to recover some type of income by selling the dead and
dying timber. In response I was sent the recovery guidelines. I
explained that recovery was not a possibility since all the
trees were either dead or dying. I needed information to
prevent me from performing an activity that would cause a
taking. Due to the threat of litigation beyond our ability to
finance and the risk of Federal prosecution, we harvested what
we legally could do, left the remaining timber until it could
be established that no woodpeckers remained in the stand, and
then we salvaged some of the wood as pulpwood and the rest we
pushed up and burned. As a result, my family business suffered
great economic loss just beyond the damage from the fire to the
tune of several hundred thousand dollars. We currently have RCW
clusters on other parts of our property which require
management on anywhere from 60 to 300 acres per cluster. Due to
the presence of the list of species who now own the timber, we
have a loss of timber income on 600 acres of our land that
equates to roughly $36,000 a year in annual growth income, plus
the cost of the required management services. Although
management has been voluntary and self-financed, the Supreme
Court has ruled that this is a partial taking and there is no
compensation. Anyone including those in this room who has a
portion of their income taken away would probably think
different.
The ESA process and litigation are not about saving
species, it is about land control. Certainty the Federal
Government can find a better way to help private forest
landowners who provide so many public benefits rather than
lining the pockets of environmental groups and their pro bono
attorneys and spending money on a program that by Federal
Government's data is a complete failure.
In closing, no one, including myself, is questioning the
importance of protecting endangered species. Indeed, in my
particular case, I wound up with colonies of listed woodpeckers
on my land that I consider and account for in my management
activities without any Federal or state funding. If the ESA
cannot be reformed to help ease the concern of litigation
placed upon private landowners, then the tsunami of listings
and the heavy-handed tactics used by some groups threaten to do
real harm to generations of forest landowners who have been and
remain good stewards of the land as well as to the species and
their habitat. The public good should be financed by the public
and not a few----
I will take any questions. Thank you.
[The prepared statement of Mr. Hopkins follows:]
Prepared Statement of Alva J. ``Joe'' Hopkins III, President, Forest
Landowners Association, Folkston, GA
Good morning. I would like to begin my testimony by telling how the
Forest Landowners Association, of which I am the current President, was
formed. The founder of the Forest Landowners Association was a
gentleman by the name of Bill Oettmeier who was a forester in Georgia
with a forestry degree from Penn State. He was concerned by the lack of
funding for forestry research in the South and traveled to Washington,
D.C. to ask Congress for money. They asked him whom he represented and
he replied, ``I represent myself.'' Needless to say he didn't get
anywhere. So he left Washington and went back to Georgia to organize
the Forest Farmers Association in 1941. The 1940s were a time when the
best interests of timberland owners were threatened by unfavorable
legislative action in Congress. Well, you could say things have not
changed much in the last 74 years. And hence the reason I am here
speaking to you today.
The Forest Farmers Association, which is now called the Forest
Landowners Association, represents family landowners who own and
operate more than 40 million acres of forestland in 48 states. The
majority of timberland owners in the U.S. have had their property in
their family for multiple generations. For more than 100 years my
family has owned and been good stewards for private working forests in
southern Georgia. Today I am the manager of our family timberland
operation.
If one deliberately set out to create a law that would do enormous
damage to wildlife and financially punish the landowners who provide
the vast majority of their habitat, it would be hard to top the ESA.
Over 1,900 species of plants and animals are currently considered by
the Federal Government to be in danger of extinction. Once a species is
listed, they are subject to a variety of conservation efforts. However,
these conservation efforts rarely, if ever, consider the total costs of
species recovery to Federal, state or local governments, and especially
to private landowners. Of the ESA habitat listed, 78 percent are on
private land. And the private landowner is in large part footing the
bill for the flawed and failing ESA.
There are many, many, many stories from private forest landowners
who have been impacted and in some cases devastated by the Endangered
Species Act. This morning, I will share with you my own personnel story
and how the ESA has financially impacted my family business.
In March of 2000 we had a devastating wildfire that destroyed a
portion of our family timberland. This particular tract of timber
contained a colony of red cockaded woodpeckers, which are on the
endangered species list. The result of the fire was that most of trees
were killed or were dying and the woodpeckers were destroyed.
I immediately sought help from the Fish and Wildlife Service to
determine what to do to avoid a taking and to be able to recover some
type of income by selling the down timber. In response, the Fish and
Wildlife Service sent me the recovery guidelines. I explained that
recovery on this site was not going to be possible since all of the
trees were either dead or dying and I needed information to prevent me
from performing an activity that would cause a taking under the
Endangered Species Act. We wound up harvesting what we could and
leaving the remaining timber until it could be established that no
woodpeckers were still in this stand. We salvaged some of the wood as
pulpwood and the rest we pushed up and burned. As a result of lack of
guidance from the Fish and Wildlife Service in providing clear
direction as how to proceed, my family business suffered even greater
economic loss beyond the damage from the fire. The economic loss to us
as a result of not being able to sell the wood on the ground while
waiting on direction from the Fish and Wildlife Service was $250,000-
$300,000.
We currently have active red cockaded woodpeckers clusters on other
parts of our property and when you have active clusters, under the ESA,
you're required to manage the timber on anywhere from 60 to up to 300
acres per cluster depending on the basal area of the stand. Due to the
presence of the listed species, I have a loss of timber income on 600
acres of my land that equates to roughly $36,000 in annual growth rate
income. This means I have 600 acres of land that are not only non-
income producing, but it is costing me due to the required active
management activities that have to be performed under the ESA. This is
known as a partial taking.
The U.S. Supreme Court has ruled that a partial taking of your
property rights is not to be compensated under the constitutional
protection provided to private property ownership. I would suggest that
anyone who was told that they were going to have a portion of their
annual income taken away would have a different opinion. When a
timberland owner has a tract of land that they are not allowed to
timber that equates to loss of income. I am sure that no one in this
room would like to be told by the government that they are going to
have a partial taking of their income go towards the public benefit of
endangered species.
To take this scenario even further and demonstrate yet another area
of weakness under the ESA, the area of my land that I am not allowed to
timber in order to ``save'' the red cockaded woodpeckers does not have
enough breeding pairs to be scientifically viable. A recovery area
according to the current science states that it requires 250 active
breeding pairs to have a genetically viable population. On our property
we will only have a few pairs in a colony, nowhere near the needed 250
pairs. This means that eventually this colony will die off because of
the lack of genetic diversity. All I am doing is delineating the
cemetery boundary for these particular birds.
In 1996 I began harvesting a tract of mature planted pines adjacent
to the Okefenokee National Wildlife Refuge. I received a letter from
the Fish and Wildlife Service advising me that although I was an
adjacent landowner with known red cockaded woodpecker foraging habitat,
the service believed that my timber sale as currently planned would not
adversely impact the refuge red cockaded woodpecker groups and I would
be allowed to continue my harvest. The birds were not even on my
property. This example shows however, that the Fish and Wildlife
Service could have deemed my adjacent property to be off limits to
timbering activity because a listed species existed adjacent to the
property, but not on it.
Unfortunately some of the more radical environmental groups have
abused and are currently abusing the Endangered Species Act. They have
nominated hundreds of species to be listed, flooding the U.S. Fish and
Wildlife Service with applications and then using the sue and settled
method to get species listed and habitat protected. It is not about
species protection, but rather land control. Some of the species
currently being proposed to be listed have extensive habitat ranges in
the southern United States, and would devastate the forest economy if
listed which could ultimately result in timber owners having to sell
their land, yet again resulting in a negative impact on the proposed
species rather than helping it.
To summarize, there are three main areas that financially impact
landowners:
(1) Uncertainty: ESA processes leads to a tremendous amount of
uncertainty for landowners trying to both manage their land
prudently and meet the terms of the law. To comply with
immunity landowners often must engage a wildlife biologist to
help develop safe harbor agreements and habitat conservation
plans. The alternatives provided to landowner are both costly
and time consuming to obtain; the cost of the process is borne
by the landowner without any reimbursement from the government.
(2) Flawed Science coupled with poor or conflicting management
options: The problems with the Endangered Species Act have been
written about for decades yet the Fish and Wildlife Service is
looking to list many new species as a result of several law
suites filed against them. In the South many of the terrestrial
species that are being considered for listing as threatened or
endangered live in fire dependent ecosystems. Yet prescribed
burning as a management tool is becoming cost prohibitive in
many areas do to the liability that smoke can cause on local
highways and near residential areas. This creates a tremendous
concern that the Fish and Wildlife Service will rush to list
species without adequate research into feasible management
strategies for recovery.
(3) No Compensation: When a species is listed it often takes years
for the FWS to come up with feasible management strategies.
This was certainly the case for the Red Cockaded Woodpecker and
the Gopher Tortoise. While the alternatives are being debated
the law forces landowners to protect the species potentially
causing significant economic harm to their property in the mean
time. Neither the cost of compliance nor the loss in economic
value because of the loss of potential other uses of the land
are paid to the landowner.
No one, myself included, is questioning the importance of
protecting endangered species. If our government however is of the
opinion and passes laws that determine it is in the public interest to
deprive American citizens of the use of their property to perform these
functions, then it should compensate them for their loss. A public good
should be financed by the public and not by a few unfortunate private
landowners. Otherwise it is simply a matter of stealing private
property and no matter what the cause, however worthy, that is not
justified.
In my particular case I have wound up with colonies of birds that
have become de facto owners of a portion of my timber. It is no
different than me going into the woods and discovering that someone has
stolen some of my timber. Actually I would rather the latter be the
case since I have at least an opportunity to locate the criminals and
get compensated for the timber. There is however no chance of getting
paid for the timber that the Endangered Species Act steals.
Unfortunately government views one method of taking as a wonderful law
and views the other method as a criminal offense.
In response to the ESA's poor record recovering species and to harm
caused by the law's penalties, the Fish & Wildlife Service, Congress
and others have offered cosmetic reforms to improve the Act's
effectiveness. Yet these reforms are tacit admissions that the Act's
punitive approach has failed and that new approaches are needed.
Unfortunately, these new approaches are largely superficial. They do
not remove the ESA's perverse incentives (penalties) that fundamentally
undermine the Act. These initiatives include Safe Harbors, Habitat
Conservation Plans, Candidate Conservation Agreements, No Surprises,
financial incentives, and requirements to use sound science.
While I am here, I would also like to bring to the Committee's
attention another issue that greatly impacts private forest landowners
ability to maintain and manage their timber. Congress has long
recognized that growing forests have unique economic attributes that do
not necessarily match easily with general tax principles. It can take
between 20 and 80 years before a forest stand is harvestable. This
investment in forests ties up large amounts of capital in the land, but
the forest owner must also bear substantial annual costs to maintain
the forest (including fire prevention, road maintenance and pest
control) to improve the growth and productivity of the trees.
Additional costs are incurred for replanting after harvest as well as
for environmental protections and set-asides for wetlands, protected
species and other significant resources. Moreover, healthy forests
provide significant societal value by consuming carbon dioxide,
curtailing erosion, creating wildlife habitat, sourcing drinking water
and maintaining natural open space for human recreation for which the
forest owner receives little or no compensation. In response, Congress
has crafted specific provisions in the Internal Revenue Code to reflect
this unique economic framework and challenge, known as timber tax
provisions. These timber tax provisions have well-served the nation,
consumers and manufacturers, forest owners and the environment. As
Congress examines various options for tax reform, on behalf of more
than 11 million private forest landowners, I strongly urge you to
consider, as Congress has long recognized, that timber is a long-term
investment, decisions to invest in timber were made decades ago, and
changing the tax treatment would significantly and negatively impact
investments in working forests that contribute to economic growth,
environmental quality and diversity of species.
The only substantive way to reform the ESA is to remove the Act's
punishing provisions. Common sense and economics indicate that if you
want more of something you reward it. At the very least, you don't
punish people for providing it.
Thank you.
The Chairman. Thank you, Mr. Hopkins. Dr. Schildwachter,
you are recognized for 5 minutes.
STATEMENT OF GREG SCHILDWACHTER, Ph.D., PRESIDENT, WATERSHED
RESULTS, ARLINGTON, VA
Dr. Schildwachter. Thank you, Mr. Chairman, Ranking Member
Walz, Members of the Committee, and thank you especially for
adding to the renewed attention to this topic, especially
Ranking Member Walz, relative to your comments, I am eager to
take you up on making this a larger serious, good-faith effort
to renew attention to the Endangered Species Act. In that
regard, I also would like to thank Congressman Schrader. He is
working with Cynthia Lummis, one of the co-chairs of that House
ESA working group on a bill, H.R. 2919, passed by voice vote
from the Judiciary Committee that would get us better data on
these lawsuits.
But the House ESA working group, as well as some voices
from environmentalism, have recently raised ideas that could
finally break the gridlock on the Endangered Species Act.
Others as well. The Conservation Leadership Council which is
made of conservative leaders from across the country from the
highest levels of government and advocacy and industry are also
reviving the issue in a positive way. On the ground helping to
find solution are sportsmen conservation groups like the Boone
and Crockett Club, the Wild Sheep Foundation, National Wild
Turkey Federation, Appalachian Wildlife Foundation and the
Ruffed Grouse Society. These groups are ideal partners for
their focus on real results, ecological expertise and
appreciation of the risks and trade-offs involved in
stewardship, and I ask to submit for the record a
recommendation from these and other sportsmen groups from the
American Wildlife Conservation Partners.
The Chairman. Without objection.
Dr. Schildwachter. These are the experts and advocates who
know that better results for wildlife and people come from
working things out ahead of a decision instead of litigating
them afterwards. The failure to work things out and the routine
of litigation shows that central planning doesn't work any
better for governing ecosystems than it does for governing
economies.
This is the core vulnerability of the Forest Service. It is
working under relic laws of old ideas from the last century,
and even if we perfected the Endangered Species Act, we would
still have to update some of those authorities.
But as today's agenda is on the Endangered Species Act,
here are four ideas that could move us all toward working
things out on the ground instead of hashing them out in the
courtroom. First, because species' listings force the Forest
Service to reconsider its plans and policies, there should be a
schedule for which species be considered for listing each year,
5 years out. We have a sort of tentative schedule like this now
because the Fish and Wildlife Service agreed to one in a
settlement agreement. We should have a certain schedule
authorized in law, decided in public based on science. This way
the Forest Service and everyone else would know what is coming
and when and could prepare for it, would not need to sue to
push a decision, and this cramming that goes on is under way
right now, especially in eastern forests trying to catch up
with the long-eared bat. I would note also in this regard a new
bill this week from Congressman Neugebauer. It is House Bill
4284 which also presents intriguing ideas for solving this
backlog problem.
Second, for similar reason, the achievement of recovery
goals should be a cause for delisting, not just a consideration
in that. Litigators are raising new issues at delisting now
such as we are seeing with the grizzly bear in Yellowstone.
Third, we should remove deterrents and encourage active
recovery efforts. Ironically, if the Forest Service or anyone
else intends to help a species today, it must go through
additional process to get authority to help over and above what
is required to merely avoid harming a species.
And fourth and finally, we need to give states the formal
role to coordinate wildlife population management on Federal
lands. This is possible under the Sikes Act. Unused provisions
of that authority could be brought to bear.
And in closing, I just want to note with regard to the
politics again, we need more workable politics. We must be able
to address the issues. Some people avoid them by rejecting all
improvements. Other people attack flaws without committing to
improvements. I think we can do better. I think this hearing is
a step in the right direction.
I thank you, and I look forward to your questions.
[The prepared statement of Dr. Schildwachter follows:]
Prepared Statement of Greg Schildwachter, Ph.D., President, Watershed
Results, Arlington, VA
This hearing and other recent attention to the Endangered Species
Act (ESA) is important. It can draw together a larger, serious, good-
faith examination by focusing on topics that promote improvement
without disregarding the purposes of each law. One way to do this
appears in the recommendation from the American Wildlife Conservation
Partners that I submit for the record.
Below are ideas focusing on listing species, delisting species,
and, in between those two steps, how the Forest Service could
contribute to species recovery.
Forest management itself could stand its own review and should.
Creating a more effective ESA would not cure all that ails forest
management. Central planning is more pronounced in forest policy than
ESA. The planning approach has driven the Forest Service into detailed
specialties in planning and process at the same time its traditional
field expertise has retired.
``Implications'' is a good banner for this hearing, because many of
the problems with ESA are in how things work, and not obvious from how
they are written. Working from the implications is a good approach both
for tracing out the cold policy logic and also for navigating the hot
rhetoric. To have a serious review means addressing strong opinions,
and means there must be a good-faith effort to acknowledge improvement
as a good idea from those who prefer the status quo and also, from
those who would amend the Act, a commitment to the legitimacy of the
goals of the ESA.
Implication on Species Listing
ESA does not say but implies that the Forest Service policy of
producing multiple uses is conditional. The intent of ESA is ``to halt
and reverse the trend toward species extinction, whatever the cost''
(TVA v. Hill, 437 U.S. 153 (1978). ESA does not say this, but implies
it, according to the Supreme Court. Therefore, forest policy that says
National Forests will produce ``multiple use'' and ``sustained yield''
(16 U.S.C. 528-531), and that makes these among the ``required
assurances'' of Forest Service plans (16 U.S.C. 1604), are, by
implication, secondary to species conservation.
A species listing forces the Forest Service to reconsider any
settled plan or policy considered harmful to listed species. Right now
this revision is underway for the long-eared bat. Known to the Fish and
Wildlife Service (FWS) since 1985--almost 30 years ago--as possibly
qualifying for protection under ESA, the long-eared bat was one of many
species to be put on a schedule for listing as a result of the 2011
court settlement agreement in the U.S. District Court for the District
of Columbia. This is also known as the Multi-District Litigation
Settlement, or ``mega-settlement'' involving hundreds of species. FWS
proposed listing the bat last Fall, promising to complete that decision
in 1 year. During that year, the Forest Service must learn what it can
about the bat and revise its own policies accordingly.
These do-overs of forest policy would be better done in a process
that did not span 30 years and cram the work in the last of those
years.
The schedule for listing decisions now in place (somewhat) under
the multi-district litigation settlement was worked out by FWS and
litigators behind closed doors. As melting down the system in court
produces a schedule, why not skip the melt-down and create a schedule
in an open public decision?
There is a reason, which goes back to the intent of Congress as
read by the Supreme Court in TVA v. Hill: because FWS must protect
whatever the cost, it cannot set priorities according the limits on
their spending. Fixing this will take amending ESA.
An actual schedule developed through public process and standing in
place of today's across-the-board deadlines for listing decisions would
end the chaos of deadline lawsuits and enable the Forest Service better
to know what species to consider as plans are written.
Implication on Delisting
At delisting--the other end of the ESA process--is a similar
situation. Lawsuits opposing delisting on procedural grounds have
raised new issues forcing changes on Forest Service management.
In the dispute over delisting the Yellowstone grizzly bear, when
the population reached recovery goals, lawsuits prompted the addition
of habitat goals. Once these were met, more lawsuits followed raising
the possibility the Forest Service may be called upon to produce more
whitebark pine before the bear is returned to the care of state
agencies.
This happens because ESA does not allow FWS to use recovery goals
and state conservation plans as causes for delisting, but as
considerations only. This is another implication that warrants serious
discussion. When deciding a species delisting, FWS must consider the
same five factors required during the original listing. None of these
gives weight to recovery goals having been met.
Implication for Helping Recovery
Between listing and delisting is the time when the Forest Service
could be helping with active species conservation, but is obstructed by
a central irony of ESA, which is that by insisting on passive
protections, ESA limits active recovery.
This implies that stopping harms is enough to recover species.
Attempts to act positively to promote recovery are deterred because the
necessary handling of individuals of the species, and managing habitats
require more process for approval. This blunts a great potential the
Forest Service has in stewardship contracting to produce cash from
forest habitat management that can pay for recovering species.
Implication for Another Law: Sikes Act
These issues in listing, delisting, and using stewardship contracts
to promote recovery outline a set of ESA ideas for a serious review of
that law.
As to other laws with implications for forest management, consider
the Sikes Act. This requires a formal arrangement between the Forest
Service (and other agencies) and state wildlife agencies to coordinate
population and habitat management. This has not been made a practical
reality. If it were, the Forest Service could give state wildlife
agencies the role of expert on the wildlife issues now used against the
Forest Service for political purposes.
As we know from the admission of old-growth advocates that they
used the spotted owl as a surrogate to change forest policy (Yaffee,
S.L. 1994. The Wisdom of the Spotted Owl. Island Press. pp. 215-216),
and as we have seen that approach leave the species in danger to
another threat, it would be better to focus species policy on species.
State wildlife agencies are species experts responsible for wildlife
populations. Activating a formal role as such through the Sikes Act
could create more effective coordination with the Forest Service and
its habitat management responsibilities.
Closing: Implication of Gridlock
In closing, there is a final implication in the ESA and other laws
concerning the politics of gridlock. The problems of ESA and the
National Forests are wedged between a central-planning system that
serves some people perfectly well on one side and, on another side, a
vision for smaller command-and-control government (or even
privatization). The implication is that these are our only choices:
government or less government, even private ownership. This is a false
choice according to what is clear from the many ways people succeed in
keeping common-property in agreeable condition. The third way is a way
to break gridlock.
Economist Elinor Ostrom and colleagues have found that between
wholly-governmental ownership such as a National Forest and a less-
regulated or even private ownership there are ways that collaboration
can play a formal role if authorized to do so. The main ingredients are
information, rules for resolving conflict, incentives for compliance,
and infrastructure (Dietz, T. et al. 2003. The Struggle to Govern the
Commons. Science 302(5652):1907-1912).
Each of these ingredients is currently available in the central-
planning system. They could be broken out and reconfigured to make a
real place for state-local governance in National Forest Management. It
will not necessarily be any simpler than the current situation, but
experience shows it will be more effective in supplying more of the
demands of more people. In doing so it would be a 21st century
contribution to Gifford Pinchot's 100 year old vision for the greatest
good for the greatest number over the long term.
I urge Congress to make a serious and good-faith effort to pursue
these and other ideas. Escaping gridlock requires good-faith commitment
to improvements and to a goal for actual, active species recovery.
Thank you.
Attachment
The Chairman. I thank the gentleman. I thank all the
witnesses for their testimony and something that I rarely see
in a little over the 5 years I have been here, they all had
time to spare at the end of the testimony. So that speaks to
the fact you have confidence in your written testimony, and we
appreciate that, and we will try to follow suit I hope in this
next phase.
The chair would like to remind Members that they will be
recognized for questioning in the order of seniority for
Members who were here at the start of the hearing, and after
that, Members will be recognized in order of arrival. And I
appreciate Members' understanding.
I want to take the liberty of recognizing myself for the
first 5 minutes. Mr. Pena, as the Forest Service has grappled
with a long-term increase in the amount of cases that are
saddled on land management, especially vegetative and salvaged
management, please characterize how any settlements on cases
involving the Endangered Species Act may have impacted the
decision-making regarding the changes in use of National
Forests over the past 20 years.
Mr. Pena. I think the way we look at settlements, we aren't
going to settle a case if we think we are going to win it. And
so if we are going to--if we enter into a settlement, it is
because we have evaluated, like in our case, and there is a
weakness and that we want to go back and tighten it, so in my
view the settlements have resulted in us tightening up our
understanding how better to respond to and document, probably
more important document, how we are providing for provisions of
restoring and maintaining habitat for listed species.
The Chairman. Thank you. Ms. Larence, though your study
focused on reimbursement of attorney's fees, you indicate that
you found some information on the broader costs associated with
environmental lawsuits. To the extent any of the USDA's
agencies were using an accounting code to track other
litigation costs, are you able to estimate a total cost to
taxpayers?
Ms. Larence. We did not have that data in our report, sir,
but we do note that USDA has a code in there for natural
management system tracking payments, and this code does track
some costs in addition to attorney fees such as damages. But it
doesn't track all associated litigation costs.
The Forest Service has a separate code that tracks
specifically attorney fees and under the Equal Access to
Justice Act because the Appropriations Committee requested
that. So we did not have an opportunity to report on total
litigation costs.
The Chairman. Okay. Thank you. Mr. Hopkins, you mentioned
the challenges you face owning land beside a National Wildlife
Refuge in terms of conducting timber sales. Can you relate any
stories from your membership about individuals who own land
adjoining a National Forest and face related management
challenges or even the threat of litigation due to the
Endangered Species Act?
Mr. Hopkins. Since our land adjoins a U.S. Wildlife Refuge,
I can tell you in 1996 we were harvesting a stand of 38 year
old planted pines, heavy dense planted pines. By all
definitions of RCW (red-cockaded woodpecker) foraging, it was
not foraging habitat. In the process of the harvest, I received
a letter from the U.S. Fish and Wildlife Service advising me
that I would be allowed to continue my harvest because they had
determined that the birds that were on their property had
sufficient foraging, that I was not damaging the critical
habitat. By every definition, it was not critical habitat. That
is the uncertainty that scares people like me, that I thought I
was doing absolutely nothing wrong. I could have been subject
to not only extensive litigation but Federal criminal
prosecution. I might be able to survive the financial end, but
I am not sure I can do the time.
So there is an economic cost, and there is also the fear of
criminal prosecution is a very serious threat to us.
The Chairman. Thank you. Dr. Schildwachter, to what extent
have lawsuits filed against the Forest Service under the guise
of protecting endangered species impacted on the ability of the
Forest Service to make management decisions designed to recover
those species?
Dr. Schildwachter. Mr. Chairman, as has been mentioned, the
Endangered Species Act itself is not really the mainstay of the
litigation against the Forest Service. There are lots of causes
for action against the Forest Service. But typically what
happens is first the Forest Service is forced into revising
plans and policies to update them for a new listing. Sometimes
then there will be challenges that those revisions are
inadequate. Then there will be challenges that the process used
to reach those revisions was inadequate, and then there will be
challenges claiming that the decision in the end of the process
was arbitrary and capricious.
The Chairman. Thank you. I will yield back and am pleased
to recognize my good friend from Oregon, Mr. Schrader, for 5
minutes.
Mr. Schrader. Thank you, Mr. Chairman. I appreciate the
witnesses' being here today for this very important hearing.
Just in listening to the witnesses so far, there seem to be two
main thrusts that I can identify. One is the takings issue on
private landowners with the Endangered Species Act and the
different listings. And then in my neck of the woods, which is
mostly Federal land, it is the use of endless litigation to
deny the Forest Service the opportunity to do what they are
supposed to do which is consider all multiple uses. We rarely,
rarely get to a point where there is any ability to do any
harvesting in any way, shape or form where I come from.
So the opening question, if I could, Mr. Pena, is would you
suggest that the ESA application, as it pertains to U.S. Forest
Service and BLM land is broken, and is not working perhaps as
well as it should?
Mr. Pena. Well, I would be hard pressed to say that it is
perfect in its application. I think because of that, the Forest
Service is putting a lot of time into working with Fish and
Wildlife Service and NPS on how we can more efficiently
implement the requirements of the Act together. I think those
types of discussions, particularly in Oregon and Washington in
Region 6 have resulted in a lot of improvement in
implementation of the Act which leads to us having plans that
are more effective in responding to the Act and by extension,
not quite as vulnerable to litigation.
Mr. Schrader. I guess I might disagree----
Mr. Pena. The fact that it is not as vulnerable----
Mr. Schrader. I might disagree respectfully in terms of
being effective. We have a spotted owl issue in my state that
has virtually shut down any harvest on Federal forests. It is
maybe a \1/10\ of what it was 15 or 20 years ago, and we have
set aside critical habitat. I haven't heard so much on the
private land, but I am going to pay a little closer attention
after Mr. Hopkins' testimony. But on Federal land, even that
after 10 or 15 years, it has made zero difference. The spotted
owl is still decreasing in numbers. Studies in Northern
California and other parts of the country have shown that the
barred owl is actually preying on the spotted owl, and yet only
now are we getting a little opportunity to do some taking, if
you will, of the barred owl to prevent the extinction of the
spotted owl. And yet, the Forest Service's response to that was
to set aside more land that made no difference to begin with.
So I don't see where that is working.
We have a seal issue we are trying to fix. Where I come
from, salmon or iconic species that we try and recover, not
only the salmon broken down by species and subspecies and by
geographic rivers they swim up, which as a veterinarian and a
scientist, I believe, it has nothing to do with species. That
is just a human application and an environmental application.
What the original law was about makes it very difficult for
recovery, and we now have seals that are actually eating salmon
in great numbers in our dam structures that we cannot take out,
even though seals are largely recovered.
So I just would respectfully suggest that you look at that
again, and the goal of the Forest Service is to encourage
multiple uses, not just recovery of species. They have to be
balanced. That is the goal, that is the statute, and that is
not the case. Way too much time is spent on the Endangered
Species Act and basically it has shut down and crippled the
rural communities in my state.
I would like to talk with Dr. Schildwachter a little bit on
the recovery issues. It would seem to me that, as I have
alluded to in a couple of cases, species have been recovered--
we have the wolf populations recovered in my state in addition
to some others, and yet that is not enough. There is this
endless litigation that goes on, and if you could comment on
why recovery alone shouldn't be the criteria and what we could
do here in Congress to make sure it is the criteria.
Dr. Schildwachter. Thank you, sir. I agree it should be. I
can tell you why it is not, which is that the way the law is
written, there are five factors the Service must consider when
it is deciding the status of the species, whether that means if
it needs to be listed or delisted. None of those five factors
gives any binding credibility to recovery goals or a recovery
plan. In fact, recovery plans themselves are optional under the
law.
So what happens then is the Service basically goes through
the same analysis it did when it listed the species, and
litigants can raise new issues that had not come up during the
recovery process, and that is how they move the goal post as
they say. The fix just--I know we are over time here, but the
fix would simply be to make regulatory or amendments to the
statute that would give recovery goals more weight.
Mr. Schrader. Thank you. I yield back. I hope there is
another opportunity, Mr. Chairman. Thank you.
The Chairman. We will have. Thank you, Mr. Schrader. I now
recognize the gentleman from Colorado, Mr. Tipton, for 5
minutes.
Mr. Tipton. Thank you, Mr. Chairman. I would like to thank
our panel for taking the time to be able to be here. Mr. Pena,
I just want to be able to make sure that I have some clarity.
When we have had testimony, Chief Tidwell came in, presented
his budget, proposed budget to the Natural Resources Committee.
The Forest Service does not track costs associated with ESA
litigation, is that correct?
Mr. Pena. That is correct. We don't have a mechanism to
track any specific costs related to any of the litigation.
Mr. Tipton. I am just a business guy. Would that be a
sensible thing to do, to track some of those costs? Because
this is certainly diverting resources that are necessary to be
able to recover a species under the goal of the Endangered
Species Act. Would that be accurate?
Mr. Pena. We are having to apply to Resources to respond to
litigation, and I guess from our perspective, if we--knowing
the amount it is costing us to do litigation isn't going to
change the fact we have to respond to litigation.
Mr. Tipton. But if you can certainly----
Mr. Pena. The cost of doing business----
Mr. Tipton.--get a response out these committees if we know
how many dollars, if we want to recover these species. I think
we all see the value, knowing how many dollars are being
diverted that could actually be used to achieve the goal. That
is the point I guess. So you would agree that it would be
useful for the Forest Service to actually examine that and find
out what the real costs are associated not only with litigation
but also with costs associated with manpower that is required
to be able to get the information available?
Mr. Pena. We would be happy to investigate what it would
take to be able to report on the costs.
Mr. Tipton. You should have it on your books, shouldn't
you?
Mr. Pena. Excuse me?
Mr. Tipton. You should have it on your books. Somebody is
writing a check.
Mr. Pena. Well, the cost of litigation is beyond the
payment that we may do for an award.
Mr. Tipton. But you certainly know what you are directing
your people to do.
Mr. Pena. The fact that we are directing people to do work,
we don't have the ability in our accounting system to finely
account for everything a person does throughout the day. It is
budgeted, and they do many things. Our employees do multiple
things in any given day. And to be able to account for that
hourly, we didn't believe and we don't believe would be
effective use of our time administratively.
Mr. Tipton. Interesting perspective. I will tell you, in
the private sector, we do that on a regular basis in terms of
some of that analysis.
But to the goal of actually being able to achieve recovery
of a species, in the State of Colorado right now we have the
threatened listing of the Gunnison sage grouse, the greater
sage grouse. In our state, working with our governor, working
with local landowners, we have great recovery programs that are
in place right now to be able to actually help protect the
species, to be able to enhance the habitat that is going on.
Wouldn't it be a sensible approach rather than having a one-
size-fits-all program going across the West, to be able to
encourage these local conservation efforts?
Mr. Pena. Well, I believe that we are attempting to do
that. I think when we look at what is----
Mr. Tipton. Actually, the listing is still being threatened
by the Federal Government. Why aren't we taking opportunity to
be able to have those local conservation efforts, the state
efforts, to be preeminent as opposed to the one-size-fits-all
coming in from the Federal Government?
Mr. Pena. I don't know that that is the case, sir.
Mr. Tipton. No, it actually is. That is the real threat
that is going on.
Mr. Pena. My experience with that and sage grouse listing
is the Fish and Wildlife Service is taking into account the
actions on private land as well as on public land, and they are
trying to make a determination on the adequacy of those plans
in concert. And so it is, from my understanding, the
conservation efforts that are being planned on private land,
non-Federal land, does have a bearing and is significantly
taken into account by Fish and Wildlife Service on their
decisions.
Mr. Tipton. You know, just on kind of a personal note, when
I was listening to Mr. Hopkins, does it concern you when
Federal policy is effectively taking land and being able to
control that land? We have something called the Fifth Amendment
to the Constitution that requires just compensation in the
event of taking. We just heard some testimony that that is
being impacted. Is there a real concern when we look at the
litigation in some of the policy going on that it is an
overreach?
Mr. Pena. I don't believe I can respond to that because the
litigation that we encounter is focused on Federal lands. It is
not focused on private lands.
Mr. Tipton. I think that we are seeing that policy actually
impact those private lands. Doctor, maybe you can answer. When
we use hatcheries, do those count to recovery goals?
Dr. Schildwachter. I believe there is a factor for the
number of individuals produced with hatcheries, especially--and
again, Mr. Schrader knows more about this I think. What I know
about it is from his part of the world. But the concern there
is that hatchery fish that are released at an older age, then
the embryos and hatchling fish that are growing up wild survive
differently. So they don't give credit I don't think for all
the hatchery fish but for some.
Mr. Tipton. Thank you. I yield back.
The Chairman. The gentleman's time has expired. I now
recognize the gentleman from Wisconsin, Mr. Ribble, for 5
minutes.
Mr. Ribble. Thank you, Mr. Chairman. I want to thank the
panel as well for being here. I would like to follow up, Mr.
Pena, to some of the conversations that Representative Schrader
talked about a little bit. Could you help me understand on the
recovery of species? You have had some successes, obviously the
American bald eagle, very popular in Wisconsin, as well as the
grey wolf has done really well in Wisconsin.
I live in what I would describe as an exurban and suburban
area of Wisconsin along the shores of Lake Winnebago, a
relatively robust residential area. And the bald eagle really
is pretty active in that area. I can sit at my dining room
table and watch them fish in the morning while I am having my
coffee.
It seems to me that there is an impression by some of the
outside environmental groups that they believe that animals are
not able to adapt to any change in circumstances, and yet I
will take you right downtown Appleton in the middle of the city
of 80,000 people and you can watch the bald eagles fish over
the Fox River. And so it seems to me that animals are in fact
adaptive. Can you talk a little bit about that and on recovery?
Mr. Pena. I wish I could. I don't have that much of a
background on the adaptability, but I would say that we have
examples of species occurring in habitats that you wouldn't
think they would as well as species being more resilient than
what common knowledge would indicate. The question I believe
comes down to whether or not that is a norm for them being
able, across the range, to being able to continue to survive.
I can't defend the instance of bald eagles or any kind of
listed species that have to interact with increasing
urbanization and how they adapt. I would suspect, like you
observe because I have observed similar things, that it
happens. To the extent that it happens, how does that relate to
continuing existence across the full range is a different
question.
Mr. Ribble. Yes, to a certain degree it is, and if we look
across the range and we pivot from the bald eagle to the grey
wolf, Chequamegon-Nicolet National Forest of Northern
Wisconsin, they are all over the place now. I mean, it used to
be when I was a youngster doing recreation in those forests,
you would never see a grey wolf. I hardly can go up there now
without seeing them.
And so there has been this recovery inside relatively
populated areas, and also out of the National Forests into
private managed lands they have recovered quite nicely
actually. And my point being, I am wondering how much research
is being done because it seems to me that when you look at the
spotted owl, you look at some of these other species, recovery
is happening in areas where there is a lot of human intrusion,
and yet, we are preventing someone like Mr. Hopkins from doing
really managed intrusion to think that these animals have no
ability with which to adapt and recover in areas that are even
closely managed. Mr. Hopkins, can you expound on that just a
little bit?
Mr. Hopkins. Being adjacent to the refuge, of course they
do actively manage on their property for them which is they are
not managing for timber protection, they are managing for
wildlife. That is their task. That is what they should be
doing.
In our case, it has caused me to have stands that I cannot
do any timbering activity in, again, all at my own personal
financial loss because there is no compensation for that.
Mr. Ribble. Yes, and without regard to the compensation
issue, do you believe that you could manage those areas and
also have a robust wildlife environment?
Mr. Hopkins. Yes.
Mr. Ribble. Okay. I want to give you one opportunity
because I was struck in your written testimony. You included
some information on tax reform or tax policy that you felt
would help you continue to manage the forest better. I am going
to give you a few seconds here at the end of the questioning to
expound on that a little bit because you did talk about it.
Mr. Hopkins. I guess the best way I could describe that
would be that I will take a stand of my timber that has the
woodpeckers in it. If it can be thinned down to the standards
that they need to have and then tax policy would be such that
it would provide money instead of defending litigation, provide
money for landowners who are actively managing for these
species, it just seems to me that would be a whole lot better
expenditure of tax money than to spend it defending lawsuits
which wind up with what I have termed regulation by litigation.
And to me that is about the worst way you can regulate anything
is to regulate it by litigation.
Mr. Ribble. And I would agree with you in that regard.
Thank you. Mr. Chairman, I yield back.
The Chairman. I thank the gentleman. I now recognize the
gentleman from Arkansas, Mr. Crawford, for 5 minutes.
Mr. Crawford. Thank you, Mr. Chairman. While we were
talking to Mr. Hopkins, I have a quick question for you. You
mentioned the red-cockaded woodpecker that nests in areas where
you harvest timber. I have a question about the downed timber.
Is that a viable habitat for woodpecker?
Mr. Hopkins. Once the timber is on the ground, they can't
utilize it anymore. It has to be standing--when I was trying to
determine what to do with the burned timber, most of it was
still standing. Some of it was on the ground. And the cavity
trees, four of the cavity trees actually fell the day of the
fire and I had two more that stood. And the answers I got was
that they had documented a red-cockaded woodpecker for 435 days
in a dead pine tree, dead cavity tree. So I just continued to
try to monitor the site as best I could until I finally
determined there were no more red-cockaded woodpeckers out
there--which I was told to do, and by the time that came, what
I had was some beautiful long-leaf hard pine timber that I
wound up instead of being sold for paneling and doors and
flooring, it wound up going to make paper.
Mr. Crawford. So that wasn't a viable habitat, and yet you
waited 435 days you said?
Mr. Hopkins. I didn't wait that long, but I waited almost a
year. I was able to document that the woodpeckers were no
longer there.
Mr. Crawford. And you mentioned that you made the
determination about whether or not the woodpecker was present
or did----
Mr. Hopkins. Yes. I went out and did daily documentation on
them until I could determine that there were no more
woodpeckers on the----
Mr. Crawford. And your determination was sufficient? I
mean, I am just asking, were they looking over your shoulder
and questioning? Could they come back later and fine you if
your determination was viewed to be insufficient?
Mr. Hopkins. I guess they could have. They did not. They
did come out and take the cavity trees and cut cavities out of
them to use for displace, but other than that, the rest of it
was some letter-writing and verbal conversations with the U.S.
Fish and Wildlife Service, trying to direct me as to what I
could and could not do.
Mr. Crawford. Okay. Thank you. Mr. Pena, I want to go back
to visit with you a little bit. Looking at a study over the
last 20 years, it looks like, and there has been documentation
that shows that the Forest Service has prevailed in roughly
about \1/2\ of the lawsuits that you have been involved in. Do
you have any mechanism to calculate or have you been able to
recoup any of the costs associated with that litigation, any
mechanism to track that?
Mr. Pena. Recoup costs? No, we haven't recouped any costs
of litigation.* If we prevail, there is no mechanism to recoup
costs, and obviously if we don't prevail, then we are subject
to paying out, well, potentially damages but costs to the
plaintiff, according to the statutes that would cover the
situation.
[The witness provided clarification for the record, the
information is located on p. 51.]
Mr. Crawford. So what you shared with my colleague, Mr.
Tipton, you don't have a mechanism in place to track man hours
on litigation and now you are saying you don't have any kind of
a mechanism to recoup costs or to track any kind of costs? That
seems problematic to me, I mean particularly when agencies come
and lay out their budget requests and so on and you can't
account accurately for the man hours that are spent in given
endeavor? Don't you think it would be good to revisit that
policy?
Mr. Pena. Well, if you characterize the man hours to
accomplish the endeavor, the cost of the litigation becomes
part of the cost of accomplishing the endeavor. If we have a
timber sale that is litigated, to ultimately resolve that, the
cost of the appeals--the cost of planning, the cost of layout,
the cost of the appeals, the cost of any litigation that may
occur is all the cost of that project. And so obviously we are
not going out there--well, hopefully it is obvious that we are
not going out there to get litigated. We are going out there,
and we are planning to implement that project to the best of
our ability, to the best of our scientific ability and
collaborative ability in order to achieve the objectives of the
project. And so for us to say that here is the cost of doing
business or because of the litigation, we haven't been able to
understand how that changes the overall outcome of what is
going on.
Mr. Crawford. Okay. Let me stop you real quick right there.
The study, which covered 20 years, shows that you prevailed in
roughly \1/2\ or maybe a little more than \1/2\. So over the
last 20 years you haven't taken into consideration--as you just
said, we are not going out there with the assumption that we
are going to be in litigation. But you have a 20 year history
of being involved in litigation. So shouldn't you assume that
there is going to be litigation going forward?
Mr. Pena. So what we----
Mr. Crawford. Are you going to be able to calculate those
costs?
Mr. Pena. Yes. What we have invested our time in rather
than tracking cost is tracking how we can better deal with the
issues that were raised in litigation. And so we focused our
time more on how we deal with the science questions that are
generally at the root of the non-procedural causes for loss. So
questions around the science and then improving our procedurals
because we are trying to implement about 82 different laws that
guide land management. Each one of those laws have an
opportunity for litigation.
And generally, when you look at our litigation, there is a
mix of cause for litigation. It is a pretty complex system that
we have created, we being the Federal Government. And so it is
difficult to make sure we hit the right seam so that it is
perfect upon review at a court. And that is what we put our
time into.
Mr. Crawford. Thank you. My apologies for the extra time
there.
The Chairman. No problem. The gentleman's time has expired.
Now I recognize Mr. McAllister for 5 minutes.
Mr. McAllister. Thank you, Chairman. I am just sitting here
thinking. First, I want to thank you all for coming. I am just
trying to wrap my head around it. You know, our job up here is,
one, to be good stewards of the taxpayers' dollars, and second,
protect our taxpayers. And I guess my question to you, Mr.
Pena, is I come from business. And I understand you may not be
tracking it, but I mean, there are obviously attorney fees,
there is scheduling and everything that goes with it. Do you
budget for litigation every year? Do you have a certain amount
that you put in that you expect to either lose or help to fight
against with?
Mr. Pena. No.
Mr. McAllister. So over 20 years we have had all these
different lawsuits, and obviously you prevailed in over \1/2\
of them. But we have no way to track the costs of what is
associated with where our taxpayer dollars are being spent,
whether we think it was being wasted or not, over lawsuits
whether they be frivolous or not? You are saying we have no
mechanism in place for tracking the cost?
Mr. Pena. Other than with the Forest Service for the cost
of Equal Access to Justice Act, we don't track those other
costs.
Mr. McAllister. Okay. You said that, too, when you do win a
lawsuit, you have no way of recouping any costs. Is there no--
we are not following lawsuits back for recovering costs when we
are being found innocent?
Mr. Pena. There is no mechanism in statute for us to do
that.
Mr. McAllister. Okay. All right. This seems kind of not the
way the normal world works. If somebody sues you, for instance,
we ought to have some mechanism that we can recoup the costs to
stop of these small suits to know that they can't sue for no
reason.
I am really frustrated with some of the stuff you are going
through, Mr. Hopkins. You sat here and waited all that time,
knowing the land was not viable for woodpeckers. But what is
the reason you think you are not given a timely answer on what
to do? I understand the habitat and all, but it seems to me
there would be some kind of working and all that you could do
to continuing managing, such as you have said the trees that
you had to waste for wood that didn't go for premier timber,
which it would have went for paneling and flooring and all
that. What do you think the cause for such long delay is? In
your opinion, do you think the agency is worried about
litigation on their part if they act too quick?
Mr. Hopkins. I am not sure that I can answer that question.
I know it cost us somewhere in the range of several hundred
thousand dollars in lost income on that. I feel like there is a
hesitancy on their part to send letters out telling you exactly
what you can do because there would be some exposure on their
part. And obviously the foraging issue that I mentioned
earlier, by definition, my land was not foraging but by U.S.
Fish and Wildlife Service's understanding of the definition is
it was foraging. So there is a lot of uncertainty, and the sad
thing is the damage and the penalties that can occur, and the
cost of litigation and getting sued are quite severe for that
much uncertainty.
Mr. McAllister. Okay. Yes, I guess what I am having a hard
time wrapping around is, I mean, obviously you timber guys are
great conservationists and you believe in protecting what is
your tool, which is what you make your living by. But how do we
go about incentivizing for you not to be aggravated and--it is
almost like we set up a system to where you want to circumvent
the process because you don't want to deal with the option of
losing your land, losing your resources. I don't know, it is
pretty frustrating sitting from here just what the bureaucracy
has done to the individual taxpayers at the end of the day. It
is our job to try to figure out a way to fix that. I would be
open to any suggestion that you think would make--you are the
guy on the ground. You are the one that is facing it every day,
and I believe that you truly don't want to see any species
being endangered and lost from planet Earth from here on out
and do your part to preserve it. But where do you see the areas
that we could really improve to try to make things work for
both sides? Because I see a lot of taxpayers' dollars being, I
don't want to say wasted, but being spent on costly frivolous
lawsuits that if we were managing a little bit more properly,
maybe that would not be the case.
Mr. Hopkins. I just think if the law would incentivize as
opposed to punish, that would be a great start in the right
direction. If I were to be economically made whole and the
woodpeckers that I still have on some of my property that I am
having to actually manage for, and if I would just be made
economically whole, I would be one of the best woodpecker
managers that you would have. But the process is such that when
that woodpecker comes in and lights and builds a nest, he takes
my timber away from me. The Supreme Court said it is not a
taking, it is only partial. And so I have lost income. So
landowners have a fear that the better they manage their land,
the greater risk they are going to have that a species is going
to move onto it. And so it goes contra to even trying to have
good forest land management, especially long term. There is a
great initiative right now trying to restore a lot of longleaf
pine in our area, and some of you may be aware of that. Some
landowners have a fear that if they establish some beautiful
longleaf wiregrass ecosystem, the next thing they are going to
know is it is now going to be occupied by an endangered species
and they are going to lose the control of the management of
their property.
Mr. McAllister. Well I, sir, appreciate your testimony. And
I don't think we want to start having breeders of red-cockaded
woodpeckers, but obviously, it needs to go hand in hand and not
be so costly to you that it damages you at the end of the day.
So I yield back my time, Chairman.
The Chairman. I thank the gentleman. I now recognize the
gentleman from Michigan, Mr. Benishek, for 5 minutes.
Mr. Benishek. Thank you, Mr. Chairman. Mr. Pena, would the
Forest Service support changes to the Environmental Species Act
that would put more emphasis on recovery and limit the ability
for all this litigation? Should we address this in Congress? I
mean, would you be in favor of that?
Mr. Pena. I would have to say that the Administration
doesn't support amendments or changes to the ESA. I think the
Forest Service would be happy to work with the Committee on
ways to make it be more efficient in implementing the Act.
Mr. Benishek. Well, it doesn't seem to me to be very
efficient. I mean, some of the things that we have brought up
here this morning shows a lot of inefficiencies. Number one,
regulation by litigation doesn't seem to be a very good way of
doing things, especially in view of the fact that these costs
are coming out of your budget. I mean, from my understanding it
basically comes into the cost of selling the timber.
Mr. Pena. Yes, sir.
Mr. Benishek. And to my understanding, the Forest Service
doesn't really make a profit on timber sales because of the
fact that there are all these others costs in there. As a
landowner myself, it is hard to imagine someone who didn't have
to buy the land not being able to sell the timber to make a
profit, or show a return to the American taxpayer because it is
the taxpayer's land that you are managing for us.
Mr. Pena. Yes.
Mr. Benishek. And you can't do it at a profit or a return,
so our school districts get a share of the money. I know it is
a real problem in my rural district in northern Michigan where
there is a lot of Federal land, and school districts depend on
a portion of the timber sales to keep their schools open. And
yet, you guys can't figure out a way to do it and return money
to the school districts. It is really a frustrating process,
and it has led to the fact basically that there are not as many
timber sales going on in the Federal forests in my district. I
mean, most of the contractors that I know have given up even
bidding on Federal land because of all the issues dealing with
Federal laws and their risk.
So to me, the whole way the Forest Service is managed needs
to be reformed in some way so that it is actually doing the job
it is supposed to be doing, in other words managing a resource
for the people of America which doesn't seem to be working very
well right now. So you would be in favor of reforming that in
some way? I guess you say the Administration is not in favor of
any reforms to the Endangered Species Act, is that correct?
Mr. Pena. Yes, sir, and I would say that the comment I made
earlier about the Forest Service has about 82 laws that it has
to comply with in managing the National Forest. ESA is one of
those.
Mr. Benishek. Well, it is obviously way too complex to
figure it out in a rational fashion.
Mr. Hopkins, let me ask you a question. We have a lot of
private timber in my area. I represent the northern half of
Michigan. So we have a lot of private landowners as well. We
have at least 10,000 jobs directly related to forest and
timber. But we have some issues with the Canadian lynx as an
endangered species. If an additional species are proposed for
listing in our area, what impact do you expect this is going to
have on our businesses from your experience?
Mr. Hopkins. I think it has the potential to be just as
devastating as it was in Mr. Schrader's area. There is talk now
about listing the eastern diamond back rattlesnake and the
gopher tortoise which inhabits almost all the coastal plains of
the southeastern United States. If that becomes threatened or
critical habitat, then we could be looking at a situation just
as serious as the northern spotted owl was for the Pacific
Northwest. And it is easy to do the math on the damage it did
up there, and I would envision it doing equal damage in our
area.
Mr. Benishek. To what effect--Mr. Schrader pointed out that
the reason for the loss of the owl was not at all what we had
thought, you know what I mean? And so that management was
occurring with a lack of scientific basis, from what I can
understand. Does that tend to happen a lot, Mr. Hopkins, as far
as you are concerned?
Mr. Hopkins. I think a lot of it is based on flawed
science, and a good example is the colonies that I have on my
property that I have to manage for the sciences, and we need
250 active breeding pairs to have a viable genetic colony. I
have about six pair. So all I have done is defined the boundary
of the graveyard where those birds are going to die out,
whereas what to me would make good sense based on the science
would be to come in and take my offspring from these birds for
the next 10 years, move them to a recovery site and then tell
me I can do with what I want to with my property because I have
done something to try to help carry on a viable colony of these
woodpeckers. Because when you have the science coming a little
late as in the northern spotted owl, unfortunately we decimated
the forest industry up there before we found out the true cause
of the problem with the northern spotted owl.
Mr. Benishek. Thank you. I am out of time.
The Chairman. I thank the gentleman. Now I recognize the
gentlelady from South Dakota, Mrs. Noem, for 5 minutes.
Mrs. Noem. Thank you, Mr. Chairman, for holding this
hearing. I certainly appreciate it. Mr. Pena, could you tell me
a little bit about how an animal becomes listed on the
Endangered Species Act?
Mr. Pena. It is my understanding that there are two ways
that it could happen is it can be proposed for listing by the
agency, the Fish and Wildlife Service, or it could be
petitioned by a member of the public or an organization.
Mrs. Noem. Is it necessarily--are there qualifications that
it has to meet? Is population a consideration?
Mr. Pena. Yes.
Mrs. Noem. Numbers?
Mr. Pena. Yes.
Mrs. Noem. But my understanding based on----
Mr. Pena. It is numbers and habitat. If the habitat is at
risk, that could be a basis for listing as well.
Mrs. Noem. Okay. I had read some articles, and it was a
little while ago, but it referenced what Mr. Hopkins was
talking about with the eastern diamondback rattlesnake, that it
was being proposed to be included in ESA because it was
considered a threatened species, that because of some of the
activities that happened in western states, that not
necessarily the population was down, that the numbers weren't
being threatened. We weren't worried about it becoming extinct.
It was that because of activities that were happening to the
areas that the diamondback rattlesnake were included on and
where it was living was threatened, maybe even because of some
of the western towns having rattlesnake roundups that that was
a consideration for putting it on the Endangered Species Act.
Are you familiar with that?
Mr. Pena. No, ma'am, I am not. I am sorry.
Mrs. Noem. I will tell you, in western South Dakota, we
have a lot of concerns with the grouse as well, the sage
grouse, but also looking at that kind of a proposal that could
be a picture into our future. They are very concerned that
where this could go and where it could lead, that any animal
that is perceived by some activity to be harmed or by some
outside group to be harmed that it could be listed and
therefore change our entire way of life. You know, if you are
going to brand a calf, is the calf then able to be listed on
the Endangered Species Act? That is really where the
conversations go because it really sees no bounds as to what
the qualifications are to be included in that Act--Dr.
Schildwachter, when he was talking about--you state in your
testimony that stopping harms is enough to recover the species,
but the lawsuits are designed to prevent management decisions
to stop perceived harm. Is that something that you concur with
that you testified to as well?
Dr. Schildwachter. Yes, the point there, Congresswoman, is
that for most of the species on the list, simply trying not to
get in its way isn't good enough. You have to actively manage a
species population just like you got to actively manage a
forest if you want it to look like something that it doesn't
look like today.
Mrs. Noem. Well, my concern is that with saying that the
Forest Service and the Administration has no recommendations
for changes to ESA, that we are saying that the route that we
are going down is appropriate, by not putting qualifiers as to
the extinction of a species or lowering of the population could
allow us to, in the future, have any single animal, no matter
how many there are and what use they are to the landowners and
people that are utilizing that land, could be drawn in and that
could be extremely detrimental to our way of life and even the
economies and a lot of the United States.
So for my area, that is extremely concerning that we would
say that this is being implemented properly when we are
spending millions and millions of dollars fighting these
lawsuits and also seeing what is happening to the general
population of people trying to make a living off of this land.
I come from South Dakota where we fight the pine beetle
epidemic that is going on in the Black Hills, and that has been
slowed down, that effort, by lawsuits and by frivolous lawsuits
that don't allow us to do our permitting on time, don't allow
us to get out there and actively manage the land and make sure
that we are protecting the people that live in those hills and
allowing the wildlife to really utilize the acres that they
need to to really thrive and survive.
Chief Tidwell came out to the Black Hills before we had the
farm bill signed into law, and he talked about--we showed him
some areas of the Black Hills that we have actively managed.
And he talked about what a success story that it was. He also
talked about the fact that we needed to look at thousands of
acres when we are managing our forests rather than looking at
hundreds or even just dozens of acres as we have in the past.
We were able in the farm bill to get some categorical
exclusions that was a bigger win as far as management practices
than what we have had in the past, and Chief Tidwell has told
us that it is potentially one of the strongest forestry titles
that we have ever seen.
I would hope that in the future when we look at managing
these lands and recognizing the value that timber harvest
brings into thinning of these areas, not only to the wildlife
and how they have benefited from that, but to the local
communities, to the people that have the ability to be safe in
their homes because they don't have dead and dying timber
surrounding them, that that certainly would be a consideration
into the future. And when we write policy, when we write
legislation that you are working with us to make sure that it
is of benefit, not only to the people living there and to the
wildlife but to the economy as well.
We used to make money off of our Forest Service land in
this country. Now it costs us money, and it costs us millions
of millions of dollars to continue on fighting these frivolous
lawsuits that many times we are just allowing to happen by
looking the other way. Absolutely, I think one of the things we
need to look at is having you be a little bit more accountable
within the Forest Service and within our government agencies as
to how much money we spend on litigation to make sure we write
better policy in the future.
With that, I will yield back, Mr. Chairman.
The Chairman. I thank the gentlelady, and we are going to
do just a real quick second round, if there are additional
questions. I will recognize my good friend from Oregon, Mr.
Schrader for an additional 5 minutes.
Mr. Schrader. I appreciate the Chairman's indulgence here,
and I don't want to belabor everyone's time. But this is a
really, really important issue. It is clear from listening to
my colleagues here and to some of the panelists that the ESA,
at least as it pertains to forests in this great country, is no
longer an Act to help the survival of species. It is meant to
shut down forestry. That is the real world, whether it is on
private land or whether it is in Federal forests where I come
from. That is the goal for some of the extreme environmental
communities out there. And that is a shame. They made
originally a good law bad, and it begs the point that some
Members are raising here to look at ESA and try and put a
little bit of fairness back into it, or at least get it back to
its original goal which is to recover species. That really is
what it is all about, not shutting down forestry because you
have an ideological agenda and don't care about the communities
in a big part of the rural areas of our country. I think it is
a shame.
There have been comments that the Forest Service doesn't
have a plan to change ESA. Well, that certainly shouldn't
preclude Congress, which is the legislative-making body, from
suggesting some changes to ESA to put a little bit of fairness
back into it and frankly get back to the multiple use mandate
that we are supposed to have on our forest lands, and I would
argue, most of our public land around the country.
And to that end, I guess I would ask Ms. Larence a little
bit about the Equal Access to Justice Act. What was the
original problem they were trying to cure there, and is there
opportunity to have a loser pay for services under certain
criteria that might discourage at least some of these frivolous
lawsuits? No offense, to Mr. Pena, but the Forest Service has a
terrible record of only getting 50 percent of the judgements.
That is failure in my school district. But it does indicate
that they are winning at least 50, and that might discourage
some people from at least the more frivolous lawsuits.
Ms. Larence. Yes, sir. It is our understanding that part of
the intent of the Equal Access to Justice Act was to level the
playing field, in other words, to make sure that individuals or
parties weren't discouraged from suing the government for
unreasonable actions or decisions. Because they feared the
government was so big, they wouldn't be able to afford the cost
of litigation. But it is our understanding there aren't
provisions to necessarily go the other way if the government
wins.
Since I am with the Government Accountability Office, I
feel an obligation to say, ``We always push agencies to try to
track data on the results and impacts of the laws and programs
that they are implementing because we think it is important to
know what those results are.'' And sometimes it identifies
unintended consequences and its important management data for
the agencies and the Congress to have to be able to make
decisions about whether or not you need to make changes: has
the law played out as Congress intended initially? So I just
wanted to make sure and make that point.
Mr. Schrader. I appreciate that. I for one am going to
look--at as least as it relates to our Forest Service and BLM
lands--some sort of equity in the access to lawsuits and who
pays at the end of the day. It is fair. I don't want to
discourage lawsuits, legitimate lawsuits, any more than the
next person but it should be that the loser pays provisions.
That would put a little balance back and encourage good
lawsuits and discourage bad lawsuits.
I guess I asked Mr. Pena a couple of questions. I know you
have made some changes on this. Are you aware of Senator
Wyden's bill that talks about getting rid of survey and
management criteria, changing standing, maybe formalizing some
of the original changes that the Forest Service has done? And,
in talking about ecological forestry and how that applies,
whether or not you think there is an opportunity for some
sufficiency language to get at preserving species by doing
things the right way by using best practices and then calling
that sufficient for ESA listing? Because as I listen, Americans
and scientists would be hard pressed to have all the answers
about what constitutes the exact perfect way. And maybe by
leaving portions of the forest intact, let nature take its
course, albeit with some assistance from us by practicing good
forestry practices.
Mr. Pena. So yes, we have been working with the Senator on
his bill, and we are trying to work with him so that we can
support that, yes.
Mr. Schrader. Well, the Senator has a good opportunity for
us to balance some of the problems out there. The one thing he
doesn't address to a great degree, is ESA, and that is why I
asked about the sufficiency language. We were talking about
some of the ecological forestry stuff as perhaps being
sufficient for dealing with ESA.
Mr. Pena. So we would be happy to have some further
discussions on that topic. Like I said earlier, the
Administration isn't supporting any specific changes, but that
doesn't mean we wouldn't want to talk about that and see what
could work.
Mr. Schrader. I appreciate that, and I will yield back.
The Chairman. I recognize Mrs. Noem, an additional 5
minutes.
Mrs. Noem. Mr. Pena, when the Forest Service puts together
a Forest Management plan, is the public allowed to make comment
and stakeholders in the area?
Mr. Pena. Yes, they are encouraged.
Mrs. Noem. And how long is that comment period generally?
Mr. Pena. It varies, anywhere from 30, 45, 60 days, 90
days.
Mrs. Noem. And what causes that comment period length to
vary?
Mr. Pena. Complexity of the plan, the stage at which the
planning is at.
Mrs. Noem. Okay. And then Mr. Hopkins and Dr.
Schildwachter, are landowners and stakeholders that you are
aware of allowed to provide input as well and have you done
that in the past?
Mr. Hopkins. I have not done that, so I can't comment on
that.
Dr. Schildwachter. Many times. The problem, though, is that
this is still a central planning exercise. There is no way for
the people affected by those plans locally or nationally to
deliberate over those plans. You throw in your best comments,
you leave it up to the Forest Service and you hope that the
experts back in headquarters----
Mrs. Noem. So in your experience----
Dr. Schildwachter.--get them.
Mrs. Noem.--are environmental groups allowed to make
comments during this comment time as well?
Dr. Schildwachter. Yes. The problem is everyone is allowed,
but there is no give and take over the tradeoffs or the kind of
costs that fall through the cracks of the accounting system,
that fall through the cracks of the communities. There is no
way to weigh the effects of one forest management strategy
versus another one as to what it means for the school system.
These things are not deliberated. They are simply commented on,
and the Forest Service tries to strike the balance for everyone
else. This is central planning. This is why it doesn't work.
Mrs. Noem. Do you see a better way that could be
implemented rather than----
Dr. Schildwachter. Absolutely. There are examples around
the world. A lot of them are in fishery management where there
are mixed-governance models. They are not necessarily any
simpler in process than what we have now, but there are ways
for example that authority could be shared with local
government so that there is more of a deliberation between
national interests and local interests instead of trying to
strike a balance in some sort of expert process.
Mrs. Noem. Do you believe that we would have less frivolous
lawsuits after the fact if we had that process put in place
rather than just a comment period?
Dr. Schildwachter. I think you would, but part of the new
process would have to be different rules for how we resolve
disputes.
Mrs. Noem. Okay. Yes, that is good. That is my concern is
that some of these same environmental groups that do make
comments come in later at different points and file these
lawsuits, and then the Forest Service has to use taxpayer
dollars to defend those actions in court. And if they win, they
lose time, they lose money, you lose dollars, and there are a
lot of unintended consequences that happens. But better process
to help eliminate that I think would be very helpful. I don't
think anybody minds. You know, in our area we certainly run
into problems when forest management contracts and plans take a
long period of time when you are constantly fighting a disease
and insect battle, and you have to make sure that you have
something in place far beyond the time period when they are
going to fly and spread. But for me the key is to look at
bigger contracts, to look at bigger plans. I think we have been
very short-sighted and made too small of areas that we are
willing to address because of fear of these lawsuits, but we
haven't comprehensively looked at how we can stop the lawsuits
and better serve and actively manage our forests.
So thank you for that. I certainly appreciate that
clarification, and we will see if Congress can weigh in in the
future. I appreciate it. Mr. Chairman, I yield back.
The Chairman. I thank the gentlelady. I will take the
liberty of 5 additional minutes or hopefully less than that. We
will see.
The Endangered Species Act, as you have heard from Members
on both sides of the aisle, we all recognize that the original
Congressional intent of that, that it is important in terms of
recovering species, and that is the right thing to do.
Obviously, there is significant concern of how the law has been
utilized, I believe anyway. I have concerns with that and the
frivolous lawsuits. And at least part of that blame is put on
where the Equal Access to Justice Act has been utilized. I have
the advantage of having a chief of staff that was actually here
at that point and a part of that process.
And so Ms. Larence, you had mentioned a couple things. You
used words such as Congress intended, and that is always
important. You know, Congressional intent gets lost at times.
Within your review, within the scope and the ability that you
had to review this issue, another word that you used was
reasonable. And I have to wonder whether--and also in terms of
you identified folks who would use that--my belief that the
original intent of Congress was folks with standing, people
that had--landowners, specifically, that had to defend
themselves against the deep pockets of the Federal Government.
And yet, this law seems like it has been hijacked by
environmental groups that use it for different purposes. And I
don't know if there was anything that you found in terms of any
judgments that you have made in terms of what you looked at as
it has been utilized. Has it been reasonable? And clearly, who
has standing under the practice today compared to perhaps what
the original intent of the Equal Access to Justice Act was?
Ms. Larence. Sir, we did not answer that question in our
prior review, but we think that, sir, if you had data for
example, basic data, about who actually got the payments, you
could start to look at patterns and trends about who is
bringing the litigation, who is getting the bulk of the
compensation or reimbursements, and that could give you
important information to determine how the law is playing out,
and maybe you need to make changes to your strategy.
The Chairman. I would agree completely. I throw this out to
the panel for anybody that wants to respond to it. The
Endangered Species Act as originally intended serves an
incredibly important purpose. And frivolous lawsuits have
resulted, though I believe in making it so that our forests,
which is the jurisdiction of this Committee, are not able to be
managed in a healthy way, both public and private lands.
And I have to wonder, and I don't know if there were any
thoughts on this, that it is to the detriment of many more
species because being an outdoorsman, being somebody, a
Scoutmaster for 30 years, most species require a diversity of
forests. I relate a healthy forest to a healthy church. If I
walk into a church and I see everybody with my hairline or gray
hair, I know that is not a healthy church. If I go into a
forest and it is all mature standing timber that hasn't been
actively managed, that is not a healthy forest. And the wrong-
headed perhaps interpretation and application of not just the
Endangered Species Act but many other Federal regulations and
laws have created some real unhealthy forests, and we are
talking about few critters, species, to make the Endangered
Species List. How many more are we putting on that pathway
because we take away their habitat? And that was a long-winded
question. I will open it up for a response at this point.
Please.
Dr. Schildwachter. Sir, it is great insight, and I mean,
the thing is that we found out 5 years after we passed the
Endangered Species Act when the Supreme Court read it for the
first time that it implied something that is not expressed in
the law which is that the intent of Congress was to protect
species, whatever the cost. To some that sounds like a noble
sentiment, to some it sounds crazy, but the fact is, it is
impossible. There has to be priorities, and the point that you
raise is probably the greatest way to make the point, which is
if among the species that are on the list, only a fraction have
an active recovery program. And if all the money that we spend
on recovery goes to a fraction of that, then there are a host
of other species that are either getting no attention or
haven't even been added to the list yet for lack of an ability
to set priorities, which is why something like the scheduling
of listing decisions is so important. We have to embrace the
fact that not all these situations are equal, and in order to
look at the optimal set of situations, we are going to have to
be able to set priorities. But that is going to take a new law.
The Chairman. Very good. Any other----
Mr. Pena. If I could respond also?
The Chairman. Yes, sir.
Mr. Pena. First off, I would like to thank the Chairman and
the Committee for the success in passing the farm bill and the
forestry section. I think that some of the things that you
provided to us in that is going to help us deal with once we do
make these decisions related to ESA being able to implement
them more effectively.
When I think of the point that you raise, that is the
central dilemma that we have when we come to implement ESA on
the National Forest. The species mix in any given area is not
simple, and the way that we have been driven to this point with
ESA is we get driven into single-species management. And that
makes it extremely difficult for us to maintain our mandate for
ESA let alone NFMS to manage for viable populations across the
board.
You have very good insight into the challenge that the
implementing agencies have and private landowners have on
trying to make the law work as it requires us to protect all
species. And it is a dilemma that is difficult. The northern
spotted owl, I spent 20 years of my career in Region 6. So I am
very familiar with the transition because of the northern
spotted owl. We can talk about motives and all of that, but
when it comes down to ESA, the challenge is when you have
habitat that is going away, there are--and these are more
complex questions than what--we always have science to support.
And that where the rub hits. When there is uncertainty, that
makes it difficult for an agency to be able to cover all the
bases and make a decision that isn't going to be viewed as
arbitrary and capricious.
So that is not an ESA thing per se, but it certainly is
triggered by some of the questions that ESA would cause us to
raise.
Mr. Hopkins. Mr. Chairman, I would just say, if you want to
have a healthy forest, you have to manage it with multi-faceted
management. You can't manage it for one particular species and
expect the forest to stay healthy.
The Chairman. That sounds like a word of wisdom for a good
closing there. I want to thank the witnesses and all the
Members for this hearing which I think was helpful as we
continue our commitment as a Subcommittee toward healthy
forests because quite frankly, I probably couldn't live any
further away from Mr. Schrader, my home in Pennsylvania, in
Oregon. I guess I would really have to move to New Jersey, huh?
But the fact is that this is a coast-to-coast issue that we
need. We want healthy forests because with healthy forests come
healthy rural economies, and everybody wins.
Before we adjourn, I would invite Mr. Schrader to make any
closing remarks that he has.
Mr. Schrader. I am good, sir. Thank you.
The Chairman. All right. On closing, I just want to thank
the witnesses once again and also just to note that this
Subcommittee which is just--I want to thank the Members of the
Subcommittee for the work that it did with the farm bill. I do
believe, and I think Mr. Schrader as well, that the forestry
title which was designed around healthy forests is probably one
of the strongest forestry titles that was written. I think that
is just a--it shows you when you have good, bipartisan
teamwork, and this would be an issue that we continue to work
and look at as a Subcommittee in that fashion.
So under the rules of the Committee, the record of today's
hearing will remain open for 10 days to receive additional
material and supplementary written responses from the witnesses
to any question posed by a Member. This hearing of the
Subcommittee of Conservation, Energy, and Forestry is now
adjourned.
[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
Supplementary Information Submitted by Jim Pena, Associate Deputy
Chief, U.S. Forest Service, U.S. Department of Agriculture
Mr. Crawford. Okay. Thank you. Mr. Pena, I want to go back to
visit with you a little bit. Looking at a study over the last
20 years, it looks like, and there has been documentation that
shows that the Forest Service has prevailed in roughly about
\1/2\ of the lawsuits that you have been involved in. Do you
have any mechanism to calculate or have you been able to recoup
any of the costs associated with that litigation, any mechanism
to track that?
Mr. Pena. Recoup costs? No, we haven't recouped any costs of
litigation.* If we prevail, there is no mechanism to recoup
costs, and obviously if we don't prevail, then we are subject
to paying out, well, potentially damages but costs to the
plaintiff, according to the statutes that would cover the
situation.
However, certain costs may be taxed in conformity with the
provisions of Federal Rules of Civil Procedure Rule 54 and 28 U.S.C.
1920-1923 and such other provisions of law as may be applicable and
such directives as the courts may from time to time issue. The Forest
Service has on occasion been granted an award of certain taxable costs
pursuant to 28 U.S.C. 1920. The Forest Service does not maintain a
record of such court awards.
For the Committee's convenience, a more detailed explanation of
``Costs Recoverable by the United States'' is maintained online by the
Department of Justice in the U.S. Attorneys, Civil Resource Manual,
Sec. 222, see attachment or http://www.justice.gov/usao/eousa/
foia_reading_room/usam/title4/civ00222.htm.
ATTACHMENT
United States Attorneys' Manual
Title 4 Civil Resource Manual
222. Costs Recoverable by the United States
The United States can recover costs in litigation on the same basis
as any private party. 28 U.S.C. 2412(a); Pine River Logging Co. v.
United States, 186 U.S. 279, 296 (1902). Costs are recoverable by the
United States as a matter of course, unless the court exercises
discretion under 28 U.S.C. 1923 (``may be taxed'') and Fed. R. Civ.
P. 54(d) (``unless the court otherwise directs'') and denies recovery.
See United States v. Bowden, 182 F.2d 251, 252 (10th Cir. 1950) (remand
to permit trial court to consider allowance in exercise of its
discretion); see Farmer v. Arabian American Oil Co., 379 U.S. 227
(1964). While a government employee may not collect a witness fee when
testifying on behalf of the United States, his/her travel and
subsistence expenses, provided for in 28 U.S.C. 1821, may be
recovered by the United States as a part of its costs. See 6 Moore's
Federal Practice 54.77. If adverse counsel multiplies the
proceedings, or increases costs unreasonably and vexatiously, the
excess costs may be taxed against him/her personally. See 28 U.S.C.
1927; Weiss v. United States, 227 F.2d 72, 73 (2d Cir. 1955), cert.
denied, 350 U.S. 936 (1956); 12 A.L.R.Fed. 910. See F.R.A.P. 30(b);
United States v. Deaton, 207 F.2d 726, 727 (5th Cir. 1953) (as to
recovery of the costs of unnecessarily encumbering the record on
appeal).
When considering moving for costs as the prevailing defendant in
litigation, discretion should be exercised in determining whether a
request for the assessment of costs or a reduction in the amount of
costs is appropriate. Although it is difficult to establish any set
rules for determining under what circumstances costs should not be
sought, there may be cases, for example, when the plaintiff's financial
situation at the time the litigation was initiated or as a result of
the litigation, warrant a request for a reduction in costs or a waiver
of costs.
A. Fees of United States Marshal and Clerk, Charges of Court
Stenographer, Printing Expenses. The fees of the United States
Marshal in effecting service are taxable as costs. 28 U.S.C.
1920(1). His/her fees for the service of subpoenas are also
taxable as costs, as are the United States Marshal's necessary
travel expenses. See 28 U.S.C. 1921. The allowance of the
fees of the clerk of the court are specifically covered by 28
U.S.C. 1920(1).
Section 1920(2) of Title 28 of the United States Code permits
taxation of the fees of the court reporter for all or any part
of the stenographic transcript ``necessarily obtained for use
in the case.'' This does not cover the court's ordering a
transcript for its own use, since the statutory salary of the
reporter compensates him/her for this copy. Texas City Tort
Claims v. United States, 188 F.2d 900, 902 (5th Cir. 1951); cf.
Miller v. United States, 317 U.S. 192 (1942). If opposing
counsel orders a copy of the transcript for his/her own use,
the cost is not recoverable. See Firtag v. Gendleman, 152 F.
Supp. 226 (D.D.C. 1957). However, if the court advises counsel
that it will be necessary for counsel to furnish a transcript
before a decision can be rendered because of the length and
complexity of the trial, and certifies that the transcript was
``necessarily obtained for use in the case,'' the costs may be
recoverable. Wax v. United States, 183 F. Supp. 163, 164
(E.D.N.Y. 1960). Printing expenses necessarily incurred may be
taxed as costs under 28 U.S.C. 1920(3).
B. Witness Fees and Expenses, Deposition Expenses,
Exemplification of Papers. See 28 U.S.C. 1821, as to witness
fees and expenses. Wages lost by a witness may not be taxed as
costs. See Andresen v. Clear Ridge Aviation, Inc., 9 F.R.D. 50,
52 (D. Neb. 1949). Nor is the real party in interest entitled
to a witness fee for his/her own testimony. Nominal parties or
witnesses who have only an incidental interest in the suit are
entitled to attendance fees and allowances, and these items may
be taxed. See 6 Moore's Federal Practice, 55.77(5.-1), p. 54-
432 (2d ed. 1987). Witness fees and subsistence may be taxable
as costs in some instances in which the witness did not
testify, as where last minute admissions made the testimony
unnecessary. Mueller v. Powell, 115 F. Supp. 744, 746 (W.D. Mo.
1953). Witness fees and subsistence are not restricted to the
actual day the witness testifies, but are allowable for each
day the witness necessarily attends. Bennett Chemical Co. v.
Atlantic Commodities, Ltd., 24 F.R.D. 200, 204 (S.D.N.Y. 1959).
Additional sums paid as fees or compensation to expert
witnesses, over and above the statutory fees applicable with
respect to fact witnesses, may not be recovered. See Henkel v.
Chicago, St. Paul, Minn. & Omaha Ry. Co., 284 U.S. 444, 447
(1931).
Deposition expenses are not taxable as costs, where the
depositions were taken essentially for purposes of
investigation or preparation. When the taking of a deposition
was reasonably necessary, even though it may not have been
actually used at trial, the costs recoverable by the prevailing
party may include the reasonable fee of the officer before whom
the deposition was taken, the cost of notarial certificate and
postage if the deposition was mailed, reasonable stenographic
expense in taking and transcribing the deposition (but not the
cost of an extra copy), fees and mileage allowances of
witnesses, and, in a proper case, an interpreter's fee. See 6
Moore's Federal Practice 54.77(4) (2d ed. 1982). The party's
attorney's fees in connection with the taking of a deposition
are not recoverable. 6 Moore's Federal Practice 54.77(2) (2d
ed. 1974). The expenses of counsel in attending a deposition at
a distant point may be imposed on the opposition as a condition
of taking a deposition, rather than as a court cost. See North
Atlantic & Gulf S.S. Co. v. United States, 209 F.2d 487, 489-90
(2d Cir. 1954).
C. Expenses of Investigation, Consultants, etc. The expenses
of investigation, including trial preparation and travel
expenses of counsel, are not chargeable as costs. 6 Moore's
Federal Practice, 54.77(4), (6), (8) (2d ed. 1982). The same
is true with respect to long distance calls, costs of preparing
lists of exhibits, and other items of overhead. Brookside
Theatre Corp. v. Twentieth Century-Fox Film Corp., 11 F.R.D.
259, 265-66 (W.D. Mo. 1951), modified & aff'd, 194 F.2d 846
(8th Cir.), cert. denied, 343 U.S. 942 (1952). The moving party
under Federal Rules of Civil Procedure 34, generally must bear
that cost of copying or photographing. See 76 A.L.R.2d 953,
972. The expense of using experts as consultants at the trial
cannot be charged as costs. Braun v. Hassenstein Steel Co., 23
F.R.D. 163, 168 (D.S.D. 1959); American Steel Works v. Hurley
Construction Co., 46 F.R.D. 465, 468 (D. Minn. 1969). Costs of
models are generally not taxable as costs, even though the
models are introduced in evidence. See 6 Moore's Federal
Practice, 54.77(6) (2d ed. 1982).
______
Submitted Report by Hon. Glenn Thompson, a Representative in Congress
from Pennsylvania
Endangered Species Act Congressional Working Group: Report, Findings,
and Recommendation
February 4, 2014
Rep. Doc Hastings (WA-04), Co-Chair
Rep. Cynthia Lummis (WY-At large), Co-Chair
Rep. Mark Amodei (NV-02)
Rep. Rob Bishop (UT-01)
Rep. Doug Collins (GA-09)
Rep. Andy Harris (MD-01)
Rep. Bill Huizenga (MI-02)
Rep. James Lankford (OK-05)
Rep. Blaine Luetkemeyer (MO-03)
Rep. Randy Neugebauer (TX-19)
Rep. Steve Southerland (FL-02)
Rep. Glenn Thompson (PA-05)
Rep. David Valadao (CA-21)
Website: http://esaworkinggroup.hastings.house.gov
Executive Summary
Thirteen Members of the House of Representatives from across the
United States formed the Endangered Species Act (ESA) Working Group in
May 2013 to examine a variety of questions related to ESA
implementation.
The ESA has existed for over 40 years, and in light of the fact
that ESA has not been updated by Congress in over a quarter century,
the Working Group sought to answer questions related to whether the Act
has been or will continue to be effective and if the Act reflects
scientific advancements and societal needs of the 21st century. Upon
answering these and other questions, the Working Group's overall goal
was to improve, if necessary, the ESA for both species and people.
In short, the Working Group found that the ESA, while well-
intentioned from the beginning, must be updated and modernized to
ensure its success where it matters most: outside of the courtroom and
on-the-ground. A two percent recovery rate of endangered species is
simply not acceptable.
Americans who live near, work on and enjoy our lands, waters and
wildlife show a tremendous commitment to conservation that is too often
undermined and forgotten by the ESA's litigation-driven model. Species
and people should have the right to live and prosper within a 21st
century model that recognizes the values of the American people and
fosters, not prohibits, a boots on-the-ground conservation philosophy
that is working at many state and local levels. The ESA can be
modernized to more successfully assist species that are truly in
danger. It can be updated so species conservation does not create
conflicts with people. All the while, the ESA should promote greater
transparency in the way our Federal Government does business.
This Report summarizes the findings of the Working Group and
answers key questions related to those findings. The Report
acknowledges the continued need for the ESA, but recommends
constructive changes in the following categories:
Ensuring Greater Transparency and Prioritization of ESA with
a Focus on Species Recovery and Delisting
Reducing ESA Litigation and Encouraging Settlement Reform
Empowering States, Tribes, Local Governments and Private
Landowners on ESA Decisions Affecting Them and Their Property
Requiring More Transparency and Accountability of ESA Data
and Science
While there are certainly other ideas for reform, this Report is
intended to be a starting point for positive, targeted improvements
that can truly benefit species and people.
Statement of the ESA Working Group's Mission and Purpose
The Endangered Species Act (ESA) was created over 40 years ago in
1973 to preserve, protect and recover key domestic species. Since that
time, over 1,500 U.S. domestic species and sub-species have been
listed. Most species remain on the list and hundreds more could
potentially be added within the just the next 2 years. The ESA was last
reauthorized in 1988, prompting questions about whether Congress should
update and modernize the law.
On May 9, 2013, Members of the House of Representatives,
representing a broad geographic range of the United States, announced
the creation of the Endangered Species Act (ESA) Working Group. Led by
House Natural Resources Committee Chairman Doc Hastings and Western
Caucus Co-Chair Cynthia Lummis, the Group included: Representative Mark
Amodei (Nevada, 2nd District); Representative Rob Bishop (Utah, 1st
District); Representative Doug Collins (Georgia, 9th District);
Representative Andy Harris (Maryland 1st District); Representative Bill
Huizenga, (Michigan, 2nd District); Representative James Lankford,
(Oklahoma, 5th District); Representative Blaine Luetkemeyer (Missouri,
3rd District); Representative Randy Neugebauer (Texas, 19th District);
Representative Steve Southerland (Florida, 2nd District);
Representative Glenn Thompson (Pennsylvania, 5th District); and
Representative David Valadao (California, 21st District).
The Working Group sought to examine the ESA from a variety of
viewpoints and angles; receive input on how the ESA was working and
being implemented and how and whether it could be updated to be more
effective for both people and species. Despite sometimes intrinsic
differences on the means, there appears wide agreement that
improvements to the 40 year old ESA are not only possible, but
desirable. A few months ago, the Obama Administration's Director of the
U.S. Fish and Wildlife declared that the ESA can be improved.\1\ We
agree.
---------------------------------------------------------------------------
\1\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (statement of Dan Ashe, Member, U.S. Fish
and Wildlife Service, at 56) (Editor's Note (1)).
---------------------------------------------------------------------------
During its deliberations, the Working Group focused on asking and
receiving answers from a variety of perspectives to the following
questions:
How is ESA success defined?
How do we measure ESA progress?
Is the ESA working to achieve its goals?
Is species recovery effectively prioritized and efficient?
Does the ESA ensure the compatibility of property and water
rights and species protection?
Is the ESA transparent, and are decisions open to public
engagement and input?
Is litigation driving the ESA? Is litigation helpful in
meeting ESA goals?
What is the role of state and local government and
landowners in recovering species?
Are changes to the ESA necessary?
This report analyzes answers to these questions in depth below,
summarizes the findings of the Working Group and concludes with several
key recommendations to present to the 113th Congress relating to the
ESA.
Description of the Activities of the ESA Working Group
The Working Group received hundreds of comments from outside
individuals and heard from numerous ESA experts throughout last year.
In addition, the Working Group reviewed formal written testimony
submitted by more than 50 witnesses appearing at nine full and
Subcommittee ESA hearings of the House Natural Resources Committee over
the last 3 years.\2\
---------------------------------------------------------------------------
\2\ Testimony of witnesses and archived video of ESA-related
hearings held Dec. 6, 2011; May 21, 2012; June 19, 2012; July 24, 2012;
June 6, 2013; Aug. 1, 2013; Sept. 4, 2013; and Dec. 12, 2013 are
available from the House Committee on Natural Resources website: http:/
/naturalresources.house.gov.
---------------------------------------------------------------------------
On October 10, 2013, the Working Group convened a forum titled,
``Reviewing 40 Years of the Endangered Species Act and Seeking
Improvement for People and Species.'' The forum featured seventeen
witnesses from across the nation representing private landowners,
agriculture, sportsmen, electric utilities, timber, labor unions, state
and local government, chambers of commerce, research and policy
organizations, energy producers, and environmental and conservation
groups.\3\
---------------------------------------------------------------------------
\3\ Endangered Species Act Congressional Working Group Forum, U.S.
House of Representatives (Oct. 10, 2013) (http://
esaworkinggroup.hastings.house.gov/).
---------------------------------------------------------------------------
Overview of the Endangered Species Act Since 1973
Congress passed the Endangered Species Act in 1973 with the goal of
conserving and recovering animal and plant species facing
extinction.\4\ Specifically, the conference report described the Act's
purposes as: ``to provide for the conservation, protection,
restoration, and propagation of threatened and endangered species of
fish, wildlife, and plants, and for other purposes.'' \5\
---------------------------------------------------------------------------
\4\ Endangered Species Act of 1973, 16 U.S.C. 1531(b) (1973)
(http://www.law.cornell.edu/uscode/text/16/1531).
\5\ 1973 U.S.C.C.A.N, 3001.
---------------------------------------------------------------------------
In general, the law provides authority for Federal agencies to list
species as either threatened or endangered (section 3), and requires
them to use their respective authorities to conserve listed species and
avoid actions that may affect listed species or their federally-
designated habitat (section 7).\6\
---------------------------------------------------------------------------
\6\ A History of the Endangered Species Act of 1973, United States
Fish and Wildlife Service (http://www.fws.gov/endangered/esa-library/
pdf/history_ESA.pdf).
---------------------------------------------------------------------------
This mandate has been interpreted broadly and affects private
entities and individuals by covering Federal ``actions'' such as
funding, permitting, licensing, and the granting of easements and
rights-of-ways.\7\ The ESA also establishes prohibitions on the taking
of listed species (section 9), which applies directly to private
individuals without the requirement of a Federal nexus.\8\
---------------------------------------------------------------------------
\7\ 50 CFR 402.02 (most recent regulation defining agency
``action'' for ESA purposes)
(http://www.nmfs.noaa.gov/pr/pdfs/laws/sec7regs.pdf).
\8\ The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H. Comm.
On Natural Resources, 112th Cong. (2011) (testimony of Karen Budd-
Falen, Budd-Falen Law Offices, LLC., at 10) (Editor's Note (2)).
---------------------------------------------------------------------------
Congress' most significant amendments to the ESA occurred in 1978,
1982, and 1988.\9\ Despite these targeted changes to the law, the
``overall framework of the 1973 Act'' has remained ``essentially
unchanged'' according to the U.S. Fish and Wildlife Service (FWS).\10\
Under the current framework, the ESA charges the FWS and the National
Oceanic and Atmospheric Administration's National Marine Fisheries
Service (NMFS) to field petitions to list species as threatened or
endangered and to designate critical habitat, using the ``best
scientific and commercial data available.'' \11\ In addition, ESA
requires the implementing Federal agencies to ``cooperate to the
maximum extent practicable with the States'' in implementing ESA,
including ``consultation with the States concerned before acquiring any
land or water, or interest therein, for the purpose of conserving any
endangered species or threatened species.'' (section 6).\12\
---------------------------------------------------------------------------
\9\ A History of the Endangered Species Act of 1973, United States
Fish and Wildlife Service (http://www.fws.gov/endangered/esa-library/
pdf/history_ESA.pdf).
\10\ Id.
\11\ The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H. Comm.
On Natural Resources, 112th Cong. (2011) (testimony of Karen Budd-
Falen, Budd-Falen Law Offices, LLC., at 9) (Editor's Note (2)).
\12\ Endangered Species Act of 1973, 16 U.S.C. 1531-1544 (1973)
(http://www.epw.senate.gov/esa73.pdf).
---------------------------------------------------------------------------
Litigation and threats of litigation on both substantive and
procedural grounds have significantly increased in recent years, and
legitimate questions are being raised over petitions, listings, the
rigid time-frames, and transparency of data supporting decisions
regarding the priorities of the two agencies that administer ESA.\13\
---------------------------------------------------------------------------
\13\ Id.
---------------------------------------------------------------------------
In addition, though the Federal Government annually awards
attorneys' fees to plaintiffs who file ESA-related lawsuits, the exact
amount spent by American taxpayers on ESA litigation and attorneys'
fees is unattainable. Even the former Interior Secretary acknowledged
at a 2012 budget hearing that he could not identify how much money his
agency spent on ESA-related litigation.\14\
---------------------------------------------------------------------------
\14\ Department of Interior Spending and the President's Fiscal
Year 2013 Budget Proposal: Oversight Hearing Before H. Comm. On Natural
Resources. 112th Cong. (2011) (statement of Ken Salazar, Secretary of
U.S. Department of the Interior, at 38-39) (Editor's Note (3)).
---------------------------------------------------------------------------
The last authorization for Federal appropriations to fund ESA
occurred in 1988, with specified appropriation caps for each fiscal
year from 1988 through 1992.\15\ In each subsequent year since,
Congress has appropriated funds for the continued implementation of
ESA-related activities despite the expiration of the express statutory
authorization.\16\
---------------------------------------------------------------------------
\15\ Pub. L. No. 100-478, Title I, 1009, 102 Stat. 2312 (http://
uscode.house.gov/statutes/1988/1988-100-0478.pdf).
\16\ Id.
---------------------------------------------------------------------------
Questions and Answers Regarding the Endangered Species Act
At the formation of the ESA Working Group, several key questions
were posed in relation to the ESA's past and current effectiveness, and
to help determine the scope and type of possible improvements that may
be needed going forward. The Working Group examines each of these in
detail below.
How is ESA ``Success'' Defined, and How is Progress Measured?
Working Group Conclusion: With less than 2% of species removed from
the ESA list in 40 years, the ESA's primary goal to recover and protect
species has been unsuccessful. Progress needs to be measured not by the
number of species listed, especially as a result of litigation, but by
recovering and delisting those that are currently listed and working
cooperatively on-the-ground to prevent new ones from being listed.
The Center for Biological Diversity (CBD) alleges that ``the ESA is
99.9 percent effective in preventing extinction.'' \17\ A
representative from the WildEarth Guardians (WEG) bluntly stated,
``Species on the list receive the Act's protections while unlisted
species do not,'' and ``increasing the rate of recovery will require
more, not less, protective regulations--the type of regulations that
have the potential to affect economic activity.'' \18\
---------------------------------------------------------------------------
\17\ The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H. Comm.
On Natural Resources, 112th Cong. (2011) (testimony of Kieran Suckling,
Center for Biological Diversity, at 19) (Editor's Note (2)).
\18\ The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H. Comm.
On Natural Resources, 112th Cong. (2011) (written testimony of James
Tuchton, WildEarth Guardians, at 32-33) (Editor's Note (2)).
---------------------------------------------------------------------------
State Species for Listing Under U.S. FWS Settlement Agreements
Source: House Natural Resources Committee derived from data
from FWS settlements.
Certain conservation biologists and some environmental groups have
extolled a ``human-caused extinction crisis,'' and have opined that
without ESA listing, ``half of the species on earth'' could be lost to
global climate change and other forces affecting habitat.\19\ WEG
opines that an ``estimated 6,000 to 9,000 species are at risk and
should be granted legal protection,'' and that ``species extinction are
ripping a hole in the web of life.'' \20\ Further, because they believe
a species ``truly is in emergency room status before it can even get on
the endangered species list,'' \21\ these groups have instilled a sense
of urgency that delaying listing of species ``makes conservation more
difficult'' and causes species to ``go extinct while waiting for status
determinations.'' \22\
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\19\ Defining Species Conservation Success: Tribal, State and Local
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (testimony of Patrick Parenteau, Vermont Law School, at 27)
(Editor's Note (4)).
\20\ Press Release, WildEarth Guardians, Group Seeks Federal
Protection for 475 Southwestern Endangered Species: Largest Listing
Petition Filed in Thirty Years (June 21, 2007) (http://
www.wildearthguardians.org/site/News2?news_iv_ctrl=-
1&page=NewsArticle&id=5701#.
Utg1c6Mo45s).
\21\ ESA Decisions by Closed-Door Settlement: Short-Changing
Science, Transparency, Private Property, and State & Local Economies:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (written testimony of Brock Evans, Endangered Species Coalition,
at 2) (Editor's Note (5)).
\22\ ESA Decisions by Closed-Door Settlement: Short-Changing
Science, Transparency, Private Property, and State & Local Economies:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (written testimony of Dr. Joe Roman, University of Vermont, at
5) (Editor's Note (6)).
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It is in this perspective that these groups, taking advantage of
strict and unworkable statutory deadlines in the ESA, have filed
literally hundreds of ESA lawsuits and thousands of petitions, and in
essence, have overtaken the ESA priorities of the FWS and NMFS.
In May and July 2011, the Obama Administration, through the FWS,
negotiated and agreed to two litigation settlements involving petitions
by two national environmental organizations, the CBD and the WEG to
make hundreds of species listings and designate critical habitat
decisions under the ESA through more than 85 lawsuits and legal
actions.\23\ These settlements mandate that over 250 candidate species
must be reviewed for final listing as either threatened or endangered
within specific deadlines.
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\23\ WildEarth Guardians v. Salazar (2011) (http://www.fws.gov/
endangered/improving_esa/
joint_motion_re_settlement_approval_filed.pdf); Center for Biological
Diversity v. Salazar (2011) (http://www.biologicaldiversity.org/
programs/biodiversity/species_agreement/pdfs/
proposed_settlement_agreement.pdf).
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The settlements combined thirteen Federal court cases filed in
several Federal district courts by either WEG or CBD. Over the last 2
years, FWS has attempted to cast these settlements in a positive light,
going so far as to say that the settlements would ``enable the agency
to systematically, over a period of 6 years, review and address the
needs of more than 250 candidate species to determine if they should be
added'' to the list.\24\
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\24\ Endangered Species Program: Improving ESA Implementation, U.S.
Fish and Wildlife Service (http://www.fws.gov/endangered/improving_ESA/
listing_workplan.html).
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However, the settlements actually include actions impacting 1,053
species. While the FWS claims the settlements don't require that
listing will occur, the overwhelming decisions so far have resulted in
the vast majority going toward new listings, which is the goal of these
groups. In just the past 2 years, over 80 percent (210 of the over 250)
decisions involving these species were either listings or proposals to
list by the FWS.\25\
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\25\ 78 CFR 226 70113, 70114 (Nov. 2013) (http://www.fws.gov/
endangered/esa-library/pdf/2013_11_22_CNOR.pdf); and 77 CFR. No. 225,
7004-7007 (http://www.gpo.gov/fdsys/pkg/FR-2012-11-21/pdf/2012-
28050.pdf).
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Additionally, the settlements do not apply to any other special
interest groups that are still free to file lawsuits. Indeed, the
settlements do not even limit WEG or CBD from filing additional
petitions for any myriad of other species. After these settlements were
signed, it did not take the organizations long to start filing
additional petitions. In July 2012, CBD touted filing the ``Largest
Petition Ever'' targeting amphibians and reptiles for 53 species in 45
states. The FWS admitted in response that it was ``disappointed that
[CBD] filed another large, multi-species petition. Fifty-three is a
large number, and the species are spread across the country. They have
a right to do that; [the settlement] did not give away that right. But
the service now has our priorities set through the settlement.'' \26\
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\26\ Allison Winter, Petitions for new species protection wobble
balance in FWS settlement, agency says, E&E News, Aug. 7, 2012 (http://
www.eenews.net/login?r=%2Fgreenwire%2F
2012%2F08%2F07%2Fstories%2F1059968495).
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In summary, lawsuits to list species under strict statutory
deadlines only end up impeding recovery efforts for truly endangered
species. Serial litigation actually makes ESA success even harder to
accomplish. More listed species do not necessarily equate to ESA
progress.
Is the ESA Working to Achieve its Goals?
Working Group Conclusion: Current implementation of ESA is focused
too much on responding to listing petitions and unattainable statutory
deadlines, litigation threats and ESA regulatory mandates, rather than
on defensible policies, science or data to recover and delist species.
This slows or halts a multitude of public and private activities, even
those that would protect species.
As referenced above, litigation and associated settlements to list
species under the ESA's statutory timelines have an impact on the
agencies charged with implementing ESA. As a state lands commissioner
testified:
``The FWS is faced with a no-win situation; they are
overwhelmed by environmental groups with hundreds of candidate
listings that the agency cannot possibly respond to in the
statutory timeline specified; they then find themselves in
violation of that statute and subsequently sued by these same
groups who filed to protect the species. These groups create
the problem by purposely overwhelming the agency, knowing that
they will be unable to respond and then dictate an outcome
because the agency settles rather than being able to follow the
appropriate proves, including the study of scientific evidence.
Listing a species without adequate scientific data, just to
settle a lawsuit is capricious.'' \27\
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\27\ Taxpayer-Funded Litigation: Benefitting Lawyers and Harming
Species, Jobs and Schools: Oversight Hearing Before the H. Comm. On
Natural Resources, 112th Cong. (2012) (written testimony of Jerry
Patterson, State of Texas, at 15) (Editor's Note (7)).
One outdoors writer and widely known environmentalist commented
that the Federal Government ``could recover and delist three dozen
species with the resources they spend responding to the CBD's
litigation.'' \28\ Recently, WEG declared that since ``only'' 94 listed
species out of the total 2,097 listed species are in the ocean, ``a
historic imbalance needs to be righted,'' and, as a result, petitioned
NMFS to list 81 new species to ``stem the extinction crisis in the
world's oceans.'' \29\
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\28\ Ted Williams, Extreme Green, High Country News, May 31, 2011
(http://www.hcn.org/wotr/extreme-green).
\29\ WildEarth Guardians Launches Major Campaign to Protect Marine
Biodiversity, WildEarth, July 8, 2013 (http://
www.wildearthguardians.org/site/News2?page=NewsArticle&id=
8679&news_iv_ctrl=1194#.UuF5UrQo671).
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ESA litigation has also increased the Federal Government's
inability to control catastrophic wildfires. The four Federal land
management agencies (the U.S. Forest Service, Bureau of Land
Management, National Park Service, and the FWS) are responsible for
managing over 600 million acres of land or nearly \1/3\ of the United
States. Decades of failed Federal forest management have created
unhealthy and overstocked forests, placing 73 million acres of National
Forest lands and 397 million acres of forest land nationwide at risk of
severe wildfire.\30\
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\30\ Fire and Fuels Buildup, U.S. Forest Service (http://
www.fs.fed.us/publications/policy-analysis/fire-and-fuels-position-
paper.pdf).
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Fires are destroying species habitat and ESA itself is creating
obstacles that are counter-productive to fighting wildfires, including
use of heavily mechanized equipment, use of aerial retardant and
restricted use of water due to concerns about potential impacts to
other ESA-listed species, such as salmon.\31\ State and tribal lands
adjoining Federal forest lands are increasingly at risk of wildfires
partly because of ESA.\32\
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\31\ The Impact of Catastrophic Forest Fires and Litigation on
People and Endangered Species: Time for Rational Management of our
Nation's Forests: Oversight Hearing Before the H. Comm. On Natural
Resources, 112th Cong. (2012) (testimony of Rick Dice, State of Texas,
at 20) (Editor's Note (8)).
\32\ The Impact of Catastrophic Forest Fires and Litigation on
People and Endangered Species: Time for Rational Management of our
Nation's Forests: Oversight Hearing Before the H. Comm. On Natural
Resources, 112th Cong. (2012) (statement of Alison Berry, The Sonoran
Institute, at 23) (Editor's Note (8)).
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The Forest Service's self-described ``analysis paralysis,''
excessive appeals on timber sales, ESA-related litigation, statutory
and administrative land designations (such as wilderness, roadless
areas and critical habitat) all serve to delay or outright block
management activities necessary to reduce hazardous fuels and improve
forest health and habitat.
For example, in northwestern Montana, the Kootenai National Forest
Supervisor approved an Environmental Impact Statement to proceed with
the Grizzly Vegetation Management project on 2,360 acres. The proposed
activities included timber harvest, fuels reduction, prescribed
burning, pre-commercial thinning, wildlife habitat improvement, and
watershed rehabilitation. In late 2009, several environmental groups
filed suit under the ESA, claiming these activities would harm grizzly
bear habitat. A Federal district court judge granted an injunction in
2010, which effectively blocked the management activities, and awarded
the plaintiff's attorneys' fees in the amount of $56,000. This area was
recently identified by the National Interagency Fire Center as being at
a ``significant risk of wildfire.'' Over the past 2 fiscal years alone,
26 lawsuits, notices of lawsuits, and appeals were filed in the Idaho
and Montana region of the U.S. Forest Service to block timber thinning
and other vegetation management in areas at high risk of wildfire.\33\
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\33\ Vegetation Management Litigation Trends in Region 1, U.S.
Forest Service (http://naturalresources.house.gov/uploadedfiles/
2013_04_07_lit_briefing_memo_r1.pdf).
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Endangered species habitat destruction was a reality last year,
when the Arizona Game and Fish Department noted that two major fires
resulted in the destruction of 20 percent of Mexican spotted owl nests
known to exist in the world.\34\ In addition, biologists scrambled last
year to protect endangered fish in New Mexico from the Whitewater-Baldy
Complex fire, which consumed almost 300,000 acres.\35\ Some have
pointed out that ESA's regulatory requirements work to hinder other
much needed efforts to protect the environment, such as control of
aquatic invasive species that threaten the Great Lakes and its local
water bodies.\36\
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\34\ Bonnie Stevens, An era of mega fires, Arizona Daily Sun, May
15, 2012 (http://azdailysun.com/news/science/an-era-of-mega-fires/
article_a14f3c7d-7a36-5c12-a48e-75a8ea4e3fff.html).
\35\ Susan Montoya Bryan, Raging New Mexico Fire prompts rescue of
threatened fish, San Jose Mercury News, June 16, 2012 (http://
www.mercurynews.com/ci_20872934/raging-new-mexico-fire-prompts-rescue-
threatened-fish).
\36\ Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th Cong.
(2013) (written testimony of Senator Tom Casperson, Michigan State
Senate, at 3) (Editor's Note (9)).
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ESA implementation and litigation continue to have tremendous
negative impacts on a host of activities that could protect or improve
habitat. For example, a rural public utility district sought to
construct a wind project on state-owned land and spent $4 million over
5 years in consultation with the FWS to develop an environmental
assessment of the potential impacts on the ESA-listed marbled murrelet,
purchasing over 260 acres of land as habitat for the bird. Though the
analyses determined the project would have negligible impact on
endangered species, the utility ultimately withdrew from the project
when the FWS insisted on additional peer review and $10 million as
additional habitat and other requirements.\37\ In addition, the 1998
construction of an elementary school in San Diego was delayed by ESA
litigation and FWS mitigation requirements to protect a 2 inch shrimp.
Construction is finally slated to go forward as a result of an
agreement by the school district to spend $5 million in ESA mitigation
expenses, all of which will be passed on to local citizens.\38\
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\37\ The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H. Comm.
On Natural Resources, 112th Cong. (2011) (written testimony of Doug
Miller, Public Utility District No. 2 of Pacific County, at 15-18)
(Editor's Note (2)).
\38\ Taxpayer-Funded Litigation: Benefitting Lawyers and Harming
Species, Jobs and Schools: Oversight Hearing Before the H. Comm. On
Natural Resources, 112th Cong. (2012) (written testimony of John A.
Stokes, San Diego Unified School District, at 19) (Editor's Note (7)).
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ESA-related surveys can result in significant delays and costly
project modifications; for example, surveys may be required for some
listed species that are not present for months out of the year, and
existing Federal permits, licenses or authorizations could be subject
to re-initiation of ESA consultation upon new listings of
information.\39\
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\39\ Taxpayer-Funded Litigation: Benefitting Lawyers and Harming
Species, Jobs and Schools: Oversight Hearing Before the H. Comm. On
Natural Resources, 112th Cong. (2012) (written testimony of Kent
Holsinger, Holsinger Law, LLC, at 29) (Editor's Note (7)).
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Discovery of species can hamper activities on lands owned by local
entities that have limited resources and must comply with strict
seasonal ``work windows'' to accomplish their activities. For example,
because an orchid-like, ESA-listed plant (Ute-ladies' tresses) was
spotted in a small Utah town, Federal regulations require a survey for
all ``suitable habitat,'' slowing down development permits in the
county for a year.\40\ In San Antonio, Texas, despite extensive permits
and environmental analyses approved by the FWS and the Federal Highway
Administration, after a biologist sited a dime-sized spider not seen in
the area for over 30 years, construction of a $15 million highway
project was halted.\41\ Over a year later, the Texas Department of
Transportation has been forced to completely redesign the highway
project design and submit it for Federal approval.\42\ A few months
after its discovery, the same spider halted completion of an $11
million water pipeline project.\43\
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\40\ Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th Cong.
(2013) (written testimony of Issa A. Hamud, City of Logan, Utah, at 1-
2) (Editor's Note (10)).
\41\ Rob Gordon, GORDON: Little meshweaver brings San Antonio to a
screeching stop, The Washington Times, Oct. 17, 2012 (http://
www.washingtontimes.com/news/2012/oct/17/gordon-little-meshweaver-
brings-san-antonio-to-a-s/).
\42\ Karen Grace, Drivers frustrated with construction projected to
halt endangered spider, KEN5 San Antonio, Oct. 21, 2013 (http://
www.kens5.com/news/Drivers-frustrated-with-construction-projected-
halted-by-endangered-spider-228683431.html).
\43\ Colin McDonald and Vianna Davila, Rare spider again bites
construction, My San Antonio, Feb. 25, 2013 (http://
www.mysanantonio.com/news/environment/article/Rare-spider-again-bites-
construction-4307810.php).
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In Montana, a mining project that had gone through environmental
reviews and received all required permits in 1993 is being required to
spend millions of dollars to update environmental impact statements;
and the mining company has been told by the FWS that it will need to
pay for contractors to help them complete a biological opinion related
to grizzly bears, without any assurance the project will be
approved.\44\ A rural electric cooperative in Utah that sought to
construct a power line primarily on private and state-owned lands
completed an extensive NEPA process, but was 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.
This resulted in a 9 month delay in order for the FWS to conduct a
survey and the work was only re-started after the electric co-op agreed
to pay $20,000 to the National Wildlife Defense Fund and hire a
biologist to monitor the impacts of the project on prairie dogs.\45\
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\44\ Taxpayer-Funded Litigation: Benefitting Lawyers and Harming
Species, Jobs and Schools: Oversight Hearing Before the H. Comm. On
Natural Resources, 112th Cong. (2012) (statement of Rep. John Duncan,
Member, H. Comm. on Natural Resources, at 45) (Editor's Note (7)).
\45\ ESA Decisions by Closed-Door Settlement: Short-Changing
Science, Transparency, Private Property, and State & Local Economies:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (written testimony of Carl Albrecht, Garkane Energy, at 1-2)
(Editor's Note (6)).
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Is Species Recovery Effectively Prioritized and Efficient?
Working Group Conclusion: Current implementation of ESA does not
clearly identify what is needed to recover and delist species,
resulting in a lack of incentives, for state and private conservation,
costly mandates, and wasted resources even in light of increased
Federal funding.
Listing Species Has Become the Federal Overarching Priority, not
Avoiding Listing or Recovery of Species
The legislative history of the ESA stated that its purpose is to
provide a mechanism to recover species, not simply put them on a
list.\46\ Yet, the 2011 ``mega-settlements'' are exclusively devoted to
listing species, rather than more productive goals of developing more
current and better data and working cooperatively with states,
localities and private landowners to avoid listings.\47\
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\46\ The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H. Comm.
On Natural Resources, 112th Cong. (2011) (testimony of Karen Budd-
Falen, Budd-Falen Law Offices, LLC., at 6) (Editor's Note (2)).
\47\ Id, at 6.
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The FWS states that its ESA recovery program ``oversees development
and implementation of strategic recovery plans that identify,
prioritize, and guide actions designed to reverse the threats that were
responsible for species' listing. This allows the species to improve,
recover, and ultimately be removed from the ESA's protection (i.e.,
delisted).'' \48\ However, even one litigious advocacy group's director
acknowledges that the average Federal recovery plan requires 42 years
of a species listed under ESA.\49\ Another environmental activist
acknowledges that some species ``could take a century or more, if
ever'' to be totally delisted.\50\
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\48\ Fiscal Year 2013 Budget Justification, U.S. Fish and Wildlife
Service (http://www.fws.gov/budget/2013/
FY%202013%20FWS%20Greenbook%20Final.pdf).
\49\ The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H. Comm.
On Natural Resources, 112th Cong. (2011) (testimony of Kieran Suckling,
Center for Biological Diversity, at 18) (Editor's Note (2)).
\50\ Defining Species Conservation Success: Tribal, State and Local
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (testimony of Patrick Parenteau, Vermont Law School, at 28)
(Editor's Note (4)).
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Despite litigious groups' inflated claims that 90 percent of 110
selectively-chosen endangered species are ``advancing toward
recovery,'' \51\ the FWS' own statistics simply don't match this claim.
Unfortunately, the FWS acknowledges in its most recent review of its
own recovery efforts that less than five percent of the over 1,500
domestic species on the ESA list are improving.\52\ NMFS reports that a
little over \1/3\ of its 70 listed species are improving.\53\ This is
concerning considering many of the species listed have been on the list
for up to 40 years and has cost tens of billions of dollars in direct
spending and untold amounts of indirect costs to Americans.
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\51\ Kieran Suckling, Noah Greenwald, and Tierra Curry, On Time, On
Target: How the Endangered Species Act is Saving America's Wildlife,
Center for Biological Diversity, 2012 (http://www.esasuccess.org/
report_2012.html).
\52\ Report to Congress on the Recovery of Threatened and
Endangered Species Fiscal Years 2009-2010, U.S. Fish and Wildlife
Service (http://www.fws.gov/endangered/esa-library/pdf/
Recovery_Report_2010.pdf).
\53\ Recovering Threatened and Endangered Species FY 2011-2012
Report to Congress, National Oceanic and Atmospheric Administration
Fisheries (http://www.nmfs.noaa.gov/pr/laws/esa/
noaa_esa_report_072213.pdf).
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Even when Federal agencies have little or no data, they are
defaulting to listing species under ESA, despite other ongoing
conservation activities. In 1998, NMFS determined that ongoing state
and Federal protective measures undertaken by Atlantic States were
sufficient to preclude an ESA listing of the Atlantic sturgeon, an
anadromous species of fish present in 32 rivers in the eastern U.S.
from Maine to Florida. However, following a 2009 petition by the
Natural Resources Defense Council, NMFS proposed to list five distinct
population segments of Atlantic sturgeon, without a single stock
assessment or population estimate for any of the ``distinct population
segments.'' \54\
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\54\ The Atlantic Fisheries Statutes Reauthorization Act of 2012:
Hearing on H.R. 6096 Before the S. Comm. on Fisheries, Wildlife,
Oceans, and Insular Affairs, 112th Cong. (2012) (written testimony of
Gregory DiDomenico, Garden State Seafood Assoc., at 2) (http://
naturalresources.house.gov/uploadedfiles/didomenicotestimony07-19-
12.pdf).
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Even military budgets and operations have been significantly
affected by species conservation activities that ultimately appear to
lead to Federal listings anyway. In western Washington, the Department
of Defense and other Federal agencies have invested more than $12.6
million to acquire and protect properties designed to mitigate impacts
of the settlement-driven, proposed listings of six subspecies of
gophers. These costs do not include over $250,000 spent by local
entities, school districts, ports and private landowners as part of the
FWS listing process and development of a conservation plan.\55\
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\55\ ESA Decisions by Closed-Door Settlement: Short-Changing
Science, Transparency, Private Property, and State & Local Economies:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (submission for the record of Thurston County, Washington)
(http://naturalresources.house.gov/uploadedfiles/
lettertochairman1_14_14.pdf).
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Biological Opinions and other Measures Required by ESA Force Open-
Ended, Expensive and Questionable Measures
Under ESA, anyone can submit unlimited petitions to the FWS or NMFS
to list species as ``threatened'' or ``endangered.'' There is no
requirement that the agencies considering these petitions actually
count the species populations prior to listing.\56\ Thus, there is no
real measurable numerical goalpost to justify the agencies'
determination that a species deserves to be listed or to justify what
would be needed to recover them once they are listed.
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\56\ The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H. Comm.
On Natural Resources, 112th Cong. (2011) (written testimony of Karen
Budd-Falen, Budd-Falen Law Offices, LLC., at 9) (Editor's Note (2)).
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One witness' testimony noted that alternative approaches authorized
by ESA to recover listed species, such as use of artificial
propagation, are often ignored in favor of scapegoating human
activity.\57\ Another pointed out that agricultural crop protection
products that already undergo extensive regulation under one Federal
statute must go through consultation with FWS and NMFS, which have
little expertise, resulting in consultation delays and litigation.\58\
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\57\ The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H. Comm.
On Natural Resources, 112th Cong. (2011) (statement of Brandon
Middleton, Pacific Legal Foundation, at 67) (Editor's Note (2)).
\58\ Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th Cong.
(2013) (written testimony of Kevin Kolevar, Conservation Leadership
Conference, at 1) (Editor's Note (11)).
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When Species Should be delisted, the Process is Uncertain and Rare
According to FWS' data, in the 40 years since ESA was enacted, only
30 U.S. and foreign species have been delisted.\59\ However, a recent
review of this information reveals that more than 30% of all
``delisted' species were removed from the ESA list due to data errors,
indicating that they should never have been listed in the first
place.\60\ In one case, a Texas plant was listed on petition
information data that 1,500 species remained, when in reality more than
four million existed, and it took FWS more than a decade to remove the
improperly listed plant from the ESA list.\61\
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\59\ Delisting report, U.S. Fish and Wildlife Service (http://
ecos.fws.gov/tess_public/DelistingReport.do).
\60\ Reed Hopper, Inflated Endangered Species Act `success stories'
revealed, Pacific Legal Foundation, June 5, 2012 (http://
blog.pacificlegal.org/2012/inflated-endangered-species-act-success-
stories-revealed/).
\61\ 76 Fed. Reg. 206 (Oct. 25, 2011) (http://www.gpo.gov/fdsys/
pkg/FR-2011-10-25/pdf/2011-27372.pdf).
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Two Utah counties and private landowners have been unable to
control an influx of prairie dogs that have destroyed private lands
because the FWS only counts prairie dogs found on public lands, not
private lands, for recovery purposes.\62\ This interpretation has cost
one rural electric cooperative over $150,000 to airlift transmission
poles around Federal lands that have been designated for Utah prairie
dogs, despite private landowners being able to obtain permits to kill
them on nearby lands.\63\
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\62\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (statement of Rep. Chris Stewart, Member,
H. Comm. on Natural Resources, at 63) (Editor's Note (1)).
\63\ ESA Decisions by Closed-Door Settlement: Short-Changing
Science, Transparency, Private Property, and State & Local Economies:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (written testimony of Carl Albrecht, Garkane Energy, Inc., at 2)
(Editor's Note (12)).
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The FWS and NMFS rarely act to delist or downlist a species, even
when they acknowledge the species merits delisting or downlisting.\64\
For example, in 1999, the FWS announced the recovery of the iconic bald
eagle and formally proposed to delist it from ESA, yet took 8 years to
act, and only acted after having been forced to by court order.\65\
Last year, court actions were filed to force the FWS to follow through
on its own recommendations to delist or downlist six California
species.\66\
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\64\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (written testimony of Damien Schiff,
Pacific Legal Foundation, at 1) (Editor's Note (13)).
\65\ 72 Fed. Reg. 37346 (July 9, 2007) (http://www.gpo.gov/fdsys/
granule/FR-2007-07-09/07-4302/content-detail.html); and Contoski v.
Scarlett, 2006 WL 2331180 (D. Minn. Aug. 10, 2006) (http://www.gpo.gov/
fdsys/pkg/USCOURTS-mnd-0_05-cv-02528/pdf/USCOURTS-mnd-0_05-cv-02528-
0.pdf).
\66\ Petition of Pacific Legal Foundation, et al. before The U.S.
Department of the Interior and the U.S. Fish and Wildlife Service,
(Dec. 9, 2011) (http://www.pacificlegal.org/document.doc?id=761).
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The FWS has taken the position that it is not required to act on
delisting of a species unless and until an ``interested party''
petitions for action and then follows up with a lawsuit.\67\ Because
most citizens do not desire or are not in a position to file petitions
or lawsuits against the Federal Government, many species continue to be
listed under ESA even when it may not be necessary.
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\67\ Coos County Bd. Of County Comm'rs v. Kempthorne, 531 F.3d 792
(9th Cir. 2008)
(http://caselaw.findlaw.com/us-9th-circuit/1103985.html).
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Even when a species has been deemed recovered, certain groups
continue litigating to keep the species on the list.\68\ A prime
example of this is in the State of Wyoming, where gray wolf populations
exceeded the FWS' stated recovery goals for twelve consecutive years
before it was delisted Thereafter, the agency faced three separate
lawsuits filed by fourteen litigious organizations opposing the
delisting.\69\
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\68\ The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H. Comm.
On Natural Resources, 112th Cong. (2011) (written testimony of Karen
Budd-Falen, Budd-Falen Law Offices, LLC., at 7) (Editor's Note (2)).
\69\ Defining Species Conservation Success: Tribal, State and Local
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (testimony of Steve Ferrell, State of Wyoming, at 33) (Editor's
Note (4)).
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State and tribal representatives have expressed concern that
Federal proposed recovery time-frames are too lengthy and lack
incentives for local, state and tribal entities to delist species.\70\
They also are concerned that Federal ESA recovery goals are being set
too high, and that they include objectives unrelated to species, such
as greenhouse gas emission targets.\71\
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\70\ Defining Species Conservation Success: Tribal, State and Local
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (written testimony of N. Kathryn Brigham, Columbia River Inter-
Tribal Fish Commission, at 19) (Editor's Note (4)).
\71\ Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th Cong.
(2013) (written testimony of Doug Vincent-Lang, Alaska Department of
Fish and Game, at 3) (Editor's Note (14)).
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Federal ESA Budgets are Not under-funded, and More Funding Won't
Resolve Entrenched Problems of ESA Implementation
Despite frequent claims that ESA would be much more effective if it
only received greater funding, the amount of Federal funding has
increased for the ESA. FWS and NMFS received in excess of $360
million--an increase compared to the prior Fiscal Year (2013).\72\
According to data made available since the beginning of the Obama
Administration, Federal and state expenditures have continued to rise
steadily, totaling $6.2 billion between Fiscal Years 2009 and 2012.\73\
These costs do not include the soaring direct and indirect costs on
local governments and the private sector.\74\
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\72\ Fiscal Year 2014 Budget Justification, U.S. Fish and Wildlife
Service (http://www.fws.gov/budget/2014/
FWS%202014%20Budget%20Justifications.pdf); and Fiscal Year 2014 Budget
Summary, National Oceanic and Atmospheric Administration (http://
www.corporateservices.noaa.gov/nbo/fy14_bluebook/
FINALnoaaBlueBook_2014_Web_Full.pdf).
\73\ Fiscal Year 2012 Federal And State Endangered And Threatened
Species Expenditures, U.S. Fish and Wildlife Service (http://
www.fws.gov/endangered/esa-library/pdf/2012.EXP.FINAL.pdf); Fiscal Year
2011 Federal And State Endangered And Threatened Species Expenditures,
U.S. Fish and Wildlife Service (http://www.fws.gov/endangered/esa-
library/pdf/2011.EXP.final.pdf); Fiscal Year 2010 Federal And State
Endangered And Threatened Species Expenditures, U.S. Fish and Wildlife
Service (http://www.fws.gov/endangered/esa-library/pdf/
2011.EXP.final.pdf); and Fiscal Year 2009 Federal And State Endangered
And Threatened Species Expenditures, U.S. Fish and Wildlife Service
(http://www.fws.gov/endangered/esa-library/pdf/2009_EXP_Report.pdf).
\74\ John Shadegg and Robert Gordon, Environmental Conservation:
Eight Principles of the American Conservation Ethics, The Heritage
Foundation, 2012 (http://thf_media.s3.amazonaws.com/2012/
EnvironmentalConservation/Chapter6-The-Endangered-Species-Act.pdf).
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The FWS' FY 2013 budget allocated $20.9 million for endangered
species listings and critical habitat designations, and it acknowledges
that 86 full time employees are devoting their attention to complying
with court orders or settlement agreements resulting from
litigation.\75\
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\75\ Spending for the National Oceanic and Atmospheric
Administration, the Council on Environmental Quality, the Office of
Insular Affairs, the U.S. Fish and Wildlife Service and the President's
Fiscal Year 2014 Budget Request for these Agencies: Oversight Hearing
Before the H. Subcomm. on Fisheries, Wildlife, Oceans and Insular
Affairs of the H. Comm. on Natural Resources, 113th Cong. (2013)
(question for the record response of Dan Ashe, U.S. Fish and Wildlife
Service) ((Editor's Note (15)). See also: Endangered Species Act
Congressional Working Group Forum: Forum Before the Endangered Species
Act Working Group, 113th Cong. (2013) (written testimony of Matthew
Hite, U.S. Chamber of Commerce, at 4) ((Editor's Note (16)).
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Some have raised the point that the FWS, the NMFS and other Federal
entities are not spending funds wisely relating to ESA recovery. For
example, in 2013, as near-record runs of salmon returned, and after
more than fifteen years and several billions of taxpayer and
electricity ratepayer dollars have been spent on ESA-listed salmon and
steelhead recovery in the Pacific Northwest, including extensive
habitat, hatchery, and hydropower improvements, NMFS announced plans to
spend between $200,000 to $300,000 to conduct interviews aimed at
``identifying key challenges facing the recovery effort and helping
inform solutions'' for listed salmon and steelhead.\76\
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\76\ Wash. Congressman Seeks Review Of NOAA Fish Recovery
Assessment, NW Fishletter, Feb. 12, 2013 (http://www.newsdata.com/
fishletter/313/9story.html); and Letter from Rep. Doc Hastings,
Chairman, H. Comm. on Natural Resources, to Jane Lubchenco,
Administrator, National Oceanic and Atmospheric Administration (Feb. 4,
2013) (http://hastings.house.gov/uploadedfiles/
hastingsltrresalmonassessment02-04-13.pdf).
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Another recent, egregious example is the FWS's handling of the
endangered Desert Tortoise, some of which were housed in a $1 million
budgeted conservation center at the southern edge of Las Vegas Valley
in Nevada. Though the tortoise has been ESA-listed since 1990, when
available funds to operate the conservation reserve center decreased,
the FWS began plans to actually kill hundreds of tortoises rather than
finding other protection methods. ``It's the lesser of two evils, but
it's still evil,'' said the FWS program recovery coordinator.\77\
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\77\ Hannah Dreier, Desert Tortoise Faces Threat From Its Own
Refuge, AP, Aug. 25, 2013 (http://bigstory.ap.org/article/desert-
tortoise-faces-threat-its-own-refuge).
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Does the ESA Ensure Property and Water Rights are Compatible with
Species Protection?
Working Group Conclusion: The ESA punishes private property owners
and water rights holders and fails to properly account for huge
economic and regulatory burdens that also hinder species conservation.
The ESA also advances the agendas of groups seeking land and water
acquisition and control.
Private Property Owners Lack Incentives to Conserve under current ESA
Implementation
A continuing controversy generated by ESA and related regulations
is the conflict between government regulation and private property
rights and water rights after a species has been listed. If a property
owner has a protected species on their land, the government can limit
or ban activities on that land or water source, which may harm the
species. Under section 9 of the ESA, individuals are subject to
criminal penalties if they ``take'' or ``harm'' a threatened or
endangered species.\78\ The definition of ``harm'' includes any
activity that could ``significantly impair essential behavioral
patterns, including, breeding, spawning, rearing, migrating, feeding or
sheltering'' of a species.\79\
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\78\ Endangered Species Act of 1973, 16 U.S.C. 1538(a) (http://
www.law.cornell.edu/uscode/text/16/1538), 1533(d) (http://
www.law.cornell.edu/uscode/text/16/1533) (1973).
\79\ 50 CFR 222.102 (NMFS' ``harm'' rule) (http://www.gpo.gov/
fdsys/pkg/CFR-2010-title50-vol7/pdf/CFR-2010-title50-vol7-sec222-
102.pdf); see also 50 CFR 17.3 (FWS' ``harm'' rule) (http://
www.gpo.gov/fdsys/pkg/CFR-2002-title50-vol1/pdf/CFR-2002-title50-vol1-
sec17-3.pdf).
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According to one property rights expert, ``the ESA penalizes people
for being good stewards of their land. Landowners whose management
practices create and preserve habitat for an endangered plant or animal
open their land to being regulated under ESA. And contrary to what many
environmental pressure groups claim, ESA regulations do not simply
prevent development or changes in land use. Customary land uses and
practices, such as farming, livestock grazing, and timber production
have regularly been prohibited, even when such practices help to
maintain the species' habitat.'' \80\
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\80\ Myron Ebell, An Update on Endangered Species Act Reform,
Competitive Enterprise Institute, May 5, 2005 (http://cei.org/op-eds-
and-articles/update-endangered-species-act-reform).
---------------------------------------------------------------------------
While the Fifth Amendment to the U.S. Constitution provides that
government cannot take private property unless it provides ``just
compensation'' to the owner, many private property rights advocates are
concerned that courts have not favorably ruled on the onerous effect of
ESA regulations that amount to ``regulatory takings'' allowing for just
compensation to property owners.
One witness remarked that the ESA puts the needs of species over
people when describing the impact it had on California farmers and
workers.\81\ Another testified that it creates a ``regulatory
straightjacket'' and disincentive to landowners, standing in the way of
good conservation work, and can actually result in harm to species.\82\
Another private landowner testified that the FWS' 2012 proposed
expansion of critical habitat for the Northern Spotted Owl would not
compensate landowners for use of their private lands to protect public
resources.\83\
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\81\ The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H. Comm.
On Natural Resources, 112th Cong. (2011) (testimony of Brandon
Middleton, Pacific Legal Foundation, at 40) ((Editor's Note (2)).
\82\ Taxpayer-Funded Litigation: Benefitting Lawyers and Harming
Species, Jobs and Schools: Oversight Hearing Before the H. Comm. On
Natural Resources, 112th Cong. (2012) (written testimony of Kent
Holsinger, Holsinger Law, LLC, at 27) ((Editor's Note (7)).
\83\ Failed Federal Forest Policies: Endangering Jobs, Forests and
Species: Oversight Field Hearing Before the H. Comm. On Natural
Resources, 112th Cong. (2012) (written testimony of Kelly Kreps, Kreps
Ranch LLC, at 48) ((Editor's Note (17)).
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Aggressive ESA enforcement by Federal officials fuels mistrust both
in Federal ESA implementation and the law. For example, the FWS
defended trespass of a FWS enforcement officer arriving in plain
clothes onto a private landowner's property that was alleged to be in
the midst of critical habitat.\84\
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\84\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (statement of Dan Ashe, U.S. Fish and
Wildlife Service, at 59) ((Editor's Note (1)).
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In 1982, Congress amended the ESA to authorize Federal approval of
``habitat conservation plans,'' including a new permit process meant to
give incentives to non-Federal land managers and private landowners to
protect listed and unlisted species, while still allowing for economic
development.\85\ Unfortunately, this process has proven unduly
cumbersome and expensive for some private landowners who are seeking
certainty to utilize their land. For example, a private landowner of 45
acres of timber land testified that despite investment of over $4
million and over fifteen years of process, the FWS and NMFS has still
not provided written approval of the habitat conservation plan to allow
him to harvest timber on the land and protect spotted owl and murrelet
habitat.\86\
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\85\ Endangered Species Act D A History of the Endangered Species
Act of 1973 D 1982 ESA Amendment, U.S. Fish and Wildlife Service
(http://www.fws.gov/endangered/laws-policies/esa-1982.html).
\86\ Failed Federal Forest Policies: Endangering Jobs, Forests and
Species: Oversight Field Hearing Before the H. Comm. On Natural
Resources, 112th Cong. (2012) (testimony of Tom Fox, Family Forest
Foundation, at 11) ((Editor's Note (17)).
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Critical Habitat Rules/Executive Orders Do Not Adequately Quantify the
Significant Economic Impacts to Private Property Owners and
Water Rights Holders and Comes too Late in Process
In practice, though Federal officials downplay its significance
(for example, the Director of FWS stated ``it may likely mean
nothing''),\87\ designation of critical habitat can have a significant
negative economic impact on property values. For example, the FWS
itself estimated the annual economic impact of critical habitat for the
California gnatcatcher to be over $113 million.\88\
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\87\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (statement of Dan Ashe, U.S. Fish and
Wildlife Service, at 59) ((Editor's Note (1)).
\88\ 72 Fed. Reg. 243, 72010 (2007) (http://www.gpo.gov/fdsys/pkg/
FR-2007-12-19/html/07-6003.htm).
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The Obama Administration has designated new critical habitat, and
revised previously designated critical habitat that is increasingly and
more directly affecting private property, including areas not even
occupied by the listed species the habitat is designed to protect. For
example, in 2010, the FWS revised a 2005 designation of critical
habitat for ESA-listed bull trout, found in streams in Washington,
Oregon, Idaho, Nevada and Montana, expanding the stream habitat by
nearly 500%, including additional areas where no bull trout currently
exist, and increasing the negative economic impact by $7 million per
year.\89\
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\89\ Final Bull Trout Critical Habitat Designation, U.S. Fish and
Wildlife Service (http://www.fws.gov/pacific/bulltrout/
FinalCH2010.html).
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In April 2013, as part of the 2011 mega-settlement, FWS proposed to
list the Sierra Nevada yellow-legged frog as endangered, and proposed
to designate over 2.1 million acres as critical habitat for the frog,
including over 82,000 acres of private property.\90\ The FWS'
designation of critical habitat for the elderberry longhorn beetle,
native to California's Central Valley, has imposed significant economic
and other costs, including $4.2 million in mitigation costs for one
local flood control agency that maintains levees along a river where
the FWS designated the critical habitat.\91\
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\90\ 78 Fed. Reg. 80, 24516 (2013) (http://www.gpo.gov/fdsys/pkg/
FR-2013-04-25/html/2013-09598.htm).
\91\ Endangered and Threatened Wildlife and Plants: Removal of the
Valley Elderberry Longhorn Beetle from the Federal List of Endangered
and Threatened Wildlife, U.S. Fish and Wildlife Service (http://
www.regulations.gov/#!documentDetail;D=FWS-R8-ES-2011-0063-0029).
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Concerns have been raised that ESA does not ensure that economic
impacts are fairly quantified at the time of listing, despite at least
one circuit court of appeals mandate to this effect.\92\ Instead,
recent regulations finalized by the Obama Administration will require
only that the Federal Government is required to analyze economic
impacts of a critical habitat designation rule itself.\93\
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\92\ N.M. Cattlegrower Ass'n v. U.S. Fish & Wildlife Serv., 248
F.3d 1277 (10th Cir. 2001) (http://caselaw.findlaw.com/us-10th-circuit/
1054225.html).
\93\ Improving ESA Implementation, U.S. Fish and Wildlife Service
(http://www.fws.gov/endangered/improving_ESA/CH_Econ.html).
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Critical habitat designations have also created a litigious
atmosphere surrounding the ESA. Even the former Deputy Interior
Secretary under the Obama Administration, Mr. David Hayes, declared
that critical habitat designations have been ``fish in the barrel
litigation for folks.'' \94\
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\94\ Environmental Law & Policy Annual Review, Vanderbilt Law
School, Mar. 22, 2013
(http://law.vanderbilt.edu/academics/academic-programs/environmental-
law/environmental-law-policy-annual-review/).
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ESA Being used to Forward Extreme Groups' Agendas
An additional concern is that current implementation of ESA is
bowing to out-of-the mainstream and unjustified agendas of certain
groups. The CBD's 2010 annual report states ``where humans multiply
extinction follows, and that the planet cannot continue to sustain both
an exponentially growing human population and the healthy abundance of
other species.'' \95\ One biologist went so far as to defend his
statement that ``the collective needs of non-human species must take
precedence over the needs and desires of humans.'' \96\ Another stated
that ``humanity threatens to turn the earth into a planet of weeds.''
\97\ These groups and many conservation biologists believe the primary
reason for lawsuits is ``to hold the government accountable'' on
forcing habitat protection and acquisition from private landowners for
species.\98\
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\95\ The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H. Comm.
On Natural Resources, 112th Cong. (2011) (statement of Rep. Doug
Lamborn, Member, H. Comm. on Natural Resources, at 75) ((Editor's Note
(2)).
\96\ Defining Species Conservation Success: Tribal, State and Local
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (statement of Rep. Raul Labrador, Member, H. Comm. On Natural
Resources, at 74) ((Editor's Note (4)).
\97\ Id.
\98\ Defining Species Conservation Success: Tribal, State and Local
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (written testimony of Patrick Parenteau, Vermont Law School, at
28) ((Editor's Note (4)).
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In 2009, CBD's Executive Director stated: ``When we stop the same
timber sale three or four times running, the timber planners want to
tear their hair out. They feel like their careers are being mocked and
destroyed--and they are. Psychological warfare is a very
underappreciated aspect of environmental campaigning.'' \99\
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\99\ Tony Davis, Firebrand ways, A visit with one of the founders
of the Center for Biological Diversity, High Country News, Dec. 21,
2009 (http://www.hcn.org/issues/41.22/firebrand-ways).
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While certainly heartfelt, these statements foster a contentious
atmosphere that creates unnecessary conflicts between humans and
species, rather than encouraging cooperative efforts to aid species.
Is the ESA Transparent, and Are Decisions Open to Public Engagement and
Input?
Working Group Conclusion: The ESA promotes a lack of data
transparency and science guiding ESA-related decisions, and there are
conflicts of interest and bias in ``peer review'' of Federal ESA
decisions.
``Best Available Scientific and Commercial Data'' Not Clearly Defined,
and Not being Implemented as Defined
President Obama directed all Federal agencies in a 2009 Executive
Order to ``create an unprecedented level of openness.'' \100\ Relating
to ESA, this directive has been ignored. Five years later, most of the
Federal agencies that administer ESA are unable to make basic and
legitimate data used for listings and critical habitat available to the
public, and the Obama Administration is more frequently resorting to
the use of executive orders and closed-door settlements on ESA.
---------------------------------------------------------------------------
\100\ 74 Fed. Reg. 4686 (Jan. 26, 2009) (http://www.gpo.gov/fdsys/
pkg/FR-2009-01-26/pdf/E9-1777.pdf).
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Concerns have been raised that while the ESA requires decisions to
be made solely on the basis of the best available data, the FWS and
NMFS base their ESA decisions increasingly upon unpublished reports or
professional opinions.\101\ In the words of Mr. Dan Ashe, the current
FWS Director, ``if there is little information available, then often
times we go to the experts and we ask experts for their best
professional judgment.'' \102\ In the case of the BLM's National
Technical Team (NTT) Report for Greater Sage Grouse, this has resulted
in concerns that professional opinions are offered first, and then
``science'' is found to justify the opinions.\103\
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\101\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (written testimony of Dr. Rob Roy Ramey,
at 2) ((Editor's Note (18)).
\102\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (statement of Dan Ashe, U.S. Fish and
Wildlife Service, at 36)(Editor's Note (19)).
\103\ Id.
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Last year, a Federal district court even ruled that data and
conclusions included in a 482-page NMFS ESA biological opinion were
``arbitrary and capricious,'' stating, ``In sum, the Fisheries
Service's November 2008 BiOp relied on a selection of data, tests, and
standards that did not always appear to be logical, obvious, or even
rational.'' The Court also noted that NOAA's BiOp lacked required
analyses of economic or technological feasibility of its proposed
mitigation measures.\104\
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\104\ Dow AgroSciences LLC v. National Marine Fisheries Service,
4th Cir., No. 11-2337, (Feb. 2013) (http://caselaw.findlaw.com/us-4th-
circuit/1622864.html).
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Many believe that modern scientific data methods, such as DNA
testing, are superior to Federal agencies' reliance on unpublished
studies or professional opinions.\105\ Federal agencies nevertheless
are resistant to using DNA. In one recent example, despite actual DNA
results showing one proposed listing of a subspecies of plant was
genetically indistinguishable from other similar plants found in three
other states, the FWS defended studies that it stated required the
plant be listed as a separate subspecies.\106\
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\105\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (statement of Kent McMullen, Franklin
County Natural Resources Advisory Committee, at 32) ((Editor's Note
(20)).
\106\ Geoff Folsom, Bladderpod to be listed as protected species on
Federal lands, Tri-City Herald, Dec. 19, 2013 (http://www.tri-
cityherald.com/2013/12/19/2738671/bladderpod-to-be-listed-as-
protected.html).
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An Alaska official raised concerns about the overuse of the
``precautionary principle'' in listing decisions, use of modeling
rather than observational science, and other methods that have the
effect of removing species from state jurisdiction and extending the
period of ``foreseeable future'' into the far distant future. In one
such example, the NMFS listed the beluga whale as endangered based on
modeling that showed the population had a greater than one percent
chance of going extinct beyond 50 years, based on modeled extinction
projections to 300 years.\107\
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\107\ Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th Cong.
(2013) (written testimony of Doug Vincent-Lang, Alaska Department of
Fish and Game, at 2) ((Editor's Note (14)).
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Data Not Used or Available to Increase Confidence in Decisions
The American people pay for data collection and research relating
to threatened and endangered species through grants, contracts,
cooperative agreements and administration of research permits. Concerns
have been raised that despite Federal transparency and data quality
guidelines, agencies are not required to make data relating to their
ESA decisions publicly accessible, thus eliminating legitimate
scientific inquiry and debate and to allow independent parties to
reproduce the results.\108\
---------------------------------------------------------------------------
\108\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (written testimony of Dr. Rob Roy Ramey,
at 2) ((Editor's Note (18)).
---------------------------------------------------------------------------
For example, the 2010 decision by FWS that Greater Sage Grouse
warrants ESA listing is based primarily on a 2009 taxpayer-funded FWS
study by Edward O. Garton and others. This study was cited 62 times in
the FWS' listing decision. Yet, the data used in the Garton study still
has not been made publicly available. Another scientist's written
requests for the data have been refused.\109\
---------------------------------------------------------------------------
\109\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (statement of Dr. Rob Roy Ramey, at 38)
((Editor's Note (1)).
---------------------------------------------------------------------------
Counties that questioned the accuracy of a map developed for sage
grouse habitat in Colorado have been refused by the FWS in their
requests to verify data used by the FWS in its NTT report.\110\ In more
than one case, a court order has been required to obtain the data from
Federal officials, even though the data was obtained through taxpayer-
funded studies.\111\
---------------------------------------------------------------------------
\110\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (written testimony of Tom Jankovsky, Garfield
County, Colorado, at 39) ((Editor's Note (4)).
\111\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (testimony of Dr. Rob Roy Ramey, at 27)
((Editor's Note (1)).
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Many reports and studies used to justify ESA decisions have been
found to have mathematical errors, missing data, errors of omission,
biased sampling, undocumented methods, simulated data in place of more
accurate empirical data, discrepancies between reported results and
data, inaccurate mapping, selective use of data, subjective
interpretation of results, fabricated data substituted for missing
data, and even no data at all.\112\
---------------------------------------------------------------------------
\112\ Id.
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Litigious groups are petitioning for new species that lack even
common names or descriptions, citing from a database called
NatureServe, which is not reliable as an accurate or complete source of
data.\113\ Too often, the ``science'' included in citizen listing
petitions is directly relied upon in the 90 day findings and is then
codified as ``fact'' by the time the 12 month review is completed, and
12 month reviews are sometimes subjected to ad hoc and informal peer
reviews that may amount to no more than an e-mail distribution of the
document with informal comments received.\114\
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\113\ Taxpayer-Funded Litigation: Benefitting Lawyers and Harming
Species, Jobs and Schools: Oversight Hearing Before the H. Comm. On
Natural Resources, 112th Cong. (2012) (testimony of Kent Holsinger,
Holsinger Law, LLC, at 26) ((Editor's Note (7)).
\114\ The Endangered Species Act: Reviewing the Nexus of Science
and Policy: Oversight Hearing Before the H. S. Comm. On Investigations
and Oversight, 112th Cong. (2011) (written testimony of Dr. Neal
Wilkins, Texas A&M Institute of Renewable Natural Resources, at 5)
((Editor's Note (21)).
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Lack of transparency can lead to policies that invite further
controversy and conflicts. For example, though ESA carefully
circumscribes authority to list only species, subspecies and distinct
population segments of species,\115\ NMFS created and has used a
different means to quantify and classify populations of fish. NMFS
characterizes populations of salmon and steelhead as ``evolutionary
significant units,'' \116\ whereas the FWS utilizes ``distinct
population segments'' as defined by ESA under section 4. Some have
suggested that FWS and NMFS have used less-than-transparent processes
to ensure that they can list a population of species, even though
doubts have been raised about the science underlying a listing
proposal.\117\
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\115\ 16 U.S.C. 1532(16) (http://www.gpo.gov/fdsys/pkg/USCODE-
2011-title16/pdf/USCODE-2011-title16-chap35-sec1532.pdf).
\116\ 56 Fed. Reg. 58612 (1991) (http://www.nmfs.noaa.gov/pr/pdfs/
fr/fr56-58612.pdf).
\117\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (written testimony of Damien Schiff,
Pacific Legal Foundation, at 6) ((Editor's Note (13)).
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Peer Review Open to Federal Agency Conflicts and Bias
Concerns have been raised that while well-intended, ``peer review''
of ESA decisions should not be substituted for public access to
underlying data. Unfortunately, most peer reviews rarely are provided
access to the data that the study was based on, and often peer
reviewers miss errors. In addition, they can be biased and subject to
financial and ideological conflicts of interest.\118\
---------------------------------------------------------------------------
\118\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (written testimony of Dr. Rob Roy Ramey,
at 4) ((Editor's Note (18)).
---------------------------------------------------------------------------
To obtain peer reviews, the Federal agencies often turn to
individuals who work closely on a specific species and have many others
who tend to agree with them, and thus, they have ``confirmation bias''
for a certain opinion relating to ESA.\119\
---------------------------------------------------------------------------
\119\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (written testimony of Dr. Rob Roy Ramey,
at 36-37) ((Editor's Note (1)).
---------------------------------------------------------------------------
In addition to the inherent lack of transparency of ESA data and
science, the Obama Administration's use of executive orders and
rulemaking relating to ESA is exacerbating concerns about the lack of
transparency and implementation by Federal agencies. One example is the
policy interpreting ``significant portion of the range'' of ESA-listed
species, which some believe could actually undermine the use of
conservation tools and resources invested by states and local entities
for species.\120\
---------------------------------------------------------------------------
\120\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (written testimony of Steve Ferrell, State of
Wyoming, at 37) ((Editor's Note (4)).
---------------------------------------------------------------------------
In addition, certain environmental groups appear more interested in
advancing an anti-development agenda than in supporting policies to
ensure the best science or data is used for ESA decisions. In a 2009
interview, the executive director of the CBD, in response to a question
of whether he was concerned that his organization hired activists
lacking scientific credentials, stated:
``No. It was a key to our success. I think the
professionalization of the environmental movement has injured
it greatly. These kids get degrees in environmental
conservation and wildlife management and come looking for jobs
in the environmental movement. They've bought into resource
management values and multiple use by the time they graduate.
I'm more interested in hiring philosophers, linguists and
poets. The core talent of a successful environmental activist
is not science and law. It's campaigning instinct. That's not
only not taught in the universities, it's discouraged.'' \121\
---------------------------------------------------------------------------
\121\ David Blackmon, The Sue and Settle Racket, Forbes, May 27,
2013 (http://www.forbes.com/sites/davidblackmon/2013/05/27/the-sue-and-
settle-racket/).
Such agendas can have real world consequences. A college student
doing biological surveys funded by FWS Section ten recovery permits
falsely reported seeing an endangered species on privately-owned
property in his survey area, but the FWS did not immediately report it.
The student later said it was ``a joke'' but this incident nevertheless
resulted in a gravel company having to modify its operations under
ESA.\122\
---------------------------------------------------------------------------
\122\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (statement of Rep. Rob Bishop, Member, H.
Comm. on Natural Resources, at 65) ((Editor's Note (1)).
---------------------------------------------------------------------------
Once an ESA listing or critical habitat decision has been made,
there is enormous resistance to utilize new, more accurate information
or to reconsider any of the ``science'' used to support the original
decision.\123\ According to the FWS and NMFS, ESA requires them to
conduct ``status reviews'' of each listed species every 5 years.\124\
Few of these status reviews result in downlisting or delisting of
species.
---------------------------------------------------------------------------
\123\ The Endangered Species Act: Reviewing the Nexus of Science
and Policy: Oversight Hearing Before the H. S. Comm. On Investigations
and Oversight, 112th Cong. (2011) (written testimony of Dr. Neal
Wilkins, Texas A&M Institute of Renewable Natural Resources, at 3-4)
((Editor's Note (21)).
\124\ Five-Year Status Reviews Under the Endangered Species Act,
U.S. Fish and Wildlife Service (http://www.fws.gov/endangered/what-we-
do/pdf/5-yr_review_factsheet.pdf).
---------------------------------------------------------------------------
Is Litigation Driving the ESA? Is Litigation Helpful in Meeting ESA's
Goals?
Working Group Conclusion: ESA is increasingly becoming a tool for
litigation and taxpayer-funded attorneys' fees. The Obama
Administration's use of closed-door settlements undermines transparency
and involvement of affected stakeholders and drives arbitrary mandates
and deadlines that do little to recover species.
Lawsuits and Threats of Litigation & Petitions Proliferate
Many view the ESA as being driven by litigation, or threats of
litigation, which in turn distracts from species conservation and
recovery. The FWS Director acknowledged that ``when the Service is sued
for missing deadlines, we have no defense.'' \125\
---------------------------------------------------------------------------
\125\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (written testimony of Dan Ashe, U.S. Fish
and Wildlife Service, at 1) ((Editor's Note (19)).
---------------------------------------------------------------------------
Publicly available court documents reveal that ESA litigation has
risen dramatically over the past few years. In 2012, the Department of
Justice (DOJ) provided the House Committee on Natural Resources case
information on 613 total cases. Each of these cases was at least
partially devoted to litigating some aspect of the ESA. Of these, 573
(93%) were cases where Federal agencies were sued under the ESA.\126\
That amounts to an average of at least three cases a week dealing just
with citizen suits under the ESA.\127\ In analyzing the data provided
by DOJ, some trends were immediately apparent. Organized and well-
funded special interest groups (primarily a few prominent environmental
organizations) were significantly more likely to file multiple lawsuits
than individual citizens, and much more likely to be awarded attorney's
fees.
---------------------------------------------------------------------------
\126\ The other 40 cases included criminal cases, defensive cases
not within the purview of the Wildlife Section, and six affirmative
cases.
\127\ Citizen suits are discussed below at section [Editor's Note:
this footnote was incomplete in the final printed version of this
document.]
---------------------------------------------------------------------------
According to the California Forestry Association, environmentalists
filed more than 50 appeals in just one county to block thinning
projects that sought to protect the Northern Spotted Owl habitat that
had been destroyed by fire.\128\ In addition, a lawsuit filed by one
group led to a Federal court order last year that could block state
allocation of existing water rights.\129\
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\128\ The Impact of Catastrophic Forest Fires and Litigation on
People and Endangered Species: Time for Rational Management of our
Nation's Forests: Oversight Hearing Before the H. Comm. On Natural
Resources, 112th Cong. (2012) (statement of Rep Jeff Duncan, Member, H.
Comm. on Natural Resources, at 32) ((Editor's Note (8)).
\129\ The Aransas Project v. Shaw, 930 F.Supp.2d 716 (5th Cir.
2013) (issuing injunction requiring Texas Commission on Environmental
Quality to apply for incidental take permit that would lead to
development of Habitat Conservation Plan, potentially abrogating state
allocation of water) (http://law.justia.com/cases/federal/district-
courts/texas/txsdce/2:2010cv00075/738780/354).
---------------------------------------------------------------------------
Even efforts by Federal agencies to streamline the ESA consultation
process for Federal fire management plans have been challenged by
environmentalists. In 2003, the Forest Service, Bureau of Land
Management, FWS, the National Park Service, the Bureau of Indian
Affairs and NMFS issued joint regulations that would expedite National
Fire Plan actions not likely to adversely impact critical habitat.\130\
The Defenders of Wildlife and other groups filed suit under ESA, and a
Federal district court first upheld the regulations, and then reversed
itself.\131\
---------------------------------------------------------------------------
\130\ 68 Fed. Reg. 68254 (2003) (http://
www.endangeredspecieslawandpolicy.com/uploads/file/NFP%20Regs.pdf).
\131\ Defenders of Wildlife, et al. v. Salazar, Case No. 04-1230,
Feb. 6, 2012 (http://www.endangeredspecieslawandpolicy.com/uploads/
file/Kessler%20Opinion.pdf).
---------------------------------------------------------------------------
Furthermore, the number of petitions to list has greatly
proliferated from an average of 20 petitions from 1994 to 2006 to more
than 1,200 since 2009.\132\ While FWS states the mega-settlements have
helped them manage the workload, it acknowledged the settlements have
not stopped the CBD, WildEarth Guardians or other litigious groups from
filing even more petitions or ESA lawsuits since the settlements, and
indeed they have done just that.\133\
---------------------------------------------------------------------------
\132\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (statement of Rep. Chris Stewart, Member, H. Comm.
on Natural Resources, at 54) ((Editor's Note (4)).
\133\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (statement of Rep. Cynthia Lummis,
Member, H. Comm. on Natural Resources, at 39-40) ((Editor's Note (1)).
---------------------------------------------------------------------------
Settlements Not Transparent, Set Arbitrary Deadlines
In response to document requests by both House Members and Senators
relating to the mega-settlements, the Department of the Interior has
refused to disclose adequate information, claiming that Federal court
rules prohibit them from disclosing ``any written or oral communication
made in connection with or during any mediation session.'' \134\ The
Department of Interior also acknowledged that the settlement agreements
require the Federal officials to meet annually to review the status of
the settlements with the environmental groups, but that these meetings
are closed to the public.\135\ States have voiced concerns that the
Interior Department failed to consult with them prior to entering into
ESA settlements with litigious groups, and this hampers their own
planning and resource priorities.\136\ The Federal courts approving the
settlements retain jurisdiction over the process until at least 2018,
thereby binding future FWS officials to follow the requirements set by
these two settlements. The FWS itself cannot change any of the terms of
the settlements (i.e., extending a deadline for rulemaking, amendments
due to new information or data) without first obtaining the consent of
the litigating plaintiffs.\137\
---------------------------------------------------------------------------
\134\ Spending for the National Oceanic and Atmospheric
Administration, the Office of Insular Affairs, the U.S. Fish and
Wildlife Service and the President's Fiscal Year 2013 Budget Request
for these Agencies: Oversight Hearing Before the H. Subcomm. on
Fisheries, Wildlife, Oceans and Insular Affairs of the H. Comm. on
Natural Resources, 112th Cong. (2012) (question for the record response
of Dan Ashe, U.S. Fish and Wildlife Service) ((Editor's Note (15)).
\135\ Id.
\136\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (statement of Tyler Powell, State of Oklahoma, at
47) ((Editor's Note (4)).
\137\ Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th Cong.
(2013) (written testimony of Matthew Hite, U.S. Chamber of Commerce, at
5) ((Editor's Note (16)).
---------------------------------------------------------------------------
Some groups deny that ``sue and settle'' is a problem at all and
believe batch listings like those agreed to in the mega-settlement are
actually more efficient than listing species one by one, because it
helps them work quicker to get them on the list.\138\ Yet, in 2011, the
FWS Director requested the House Interior Appropriations Subcommittee
to cap the amount the FWS could spend to process ESA petitions,
acknowledging it would help them manage endangered species more
effectively.\139\
---------------------------------------------------------------------------
\138\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (written testimony of Patrick Parenteau, Vermont Law
School, at 32) ((Editor's Note (4)).
\139\ Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on Endangered
Species and People: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (statement of Rep. Cynthia Lummis,
Member, H. Comm. on Natural Resources, at 39) ((Editor's Note (1)).
---------------------------------------------------------------------------
Local jurisdictions are concerned that FWS is short-changing
transparency and confirming best available science to meet settlement
deadlines. In western Washington, the FWS included a deadline of
December 2013 to make listing determinations for six sub-species of
gophers as part of the settlements, yet is refusing to utilize genetic
science and data in another part of the country that led to a decision
not to list gopher subspecies.\140\ Moreover, the FWS refused a local
Chamber of Commerce Freedom of Information Act request to view data and
results from a Federal study justifying the western Washington listing
decision.\141\
---------------------------------------------------------------------------
\140\ 78 Fed. Reg. 220 at 68660 (2013) (http://www.gpo.gov/fdsys/
pkg/FR-2013-11-14/html/2013-27196.htm).
\141\ ESA Decisions by Closed-Door Settlement: Short-Changing
Science, Transparency, Private Property, and State & Local Economies:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (submission for the record of Thurston County, Washington)
(http://naturalresources.house.gov/uploadedfiles/
lettertochairman1_14_14.pdf).
---------------------------------------------------------------------------
Settling Groups Receive Tax-Payer Funded Attorneys' Fees
According to a 2012 GAO Report of cases brought against the
Departments of Agriculture (``USDA'') and the Interior between 2000 and
2010, the ESA was the third most expensive and litigious statute for
the USDA (costing taxpayers $1.63 million in attorneys' fees and
costs), and the most expensive and litigious statute for the entire
Interior Department (costing the taxpayers $22 million in attorneys'
fees and costs).\142\
---------------------------------------------------------------------------
\142\ GAO-12-417R, Report to Congressional Requesters; Subject:
Limited Data Available on USDA and Interior Attorney Fee Claims and
Payments, U.S. Government Accountability Office, 28-30 (2012) (http://
www.gao.gov/assets/600/590084.pdf).
---------------------------------------------------------------------------
According to information provided by the Justice Department, the
CBD was responsible for 117 ESA lawsuits filed against the Federal
Government between October 2009 and April 2012.\143\ WEG had the second
highest with 55 ESA cases, and the Sierra Club and Defenders of
Wildlife were fighting for third place with 30 and 29 filed ESA cases,
respectively (see Figure 1).
---------------------------------------------------------------------------
\143\ This number includes all cases open in DOJ's case management
system between October 2009 and April 2012. Some of the cases were
opened prior to 2009, and were closed prior to 2012 but the case
management system included all cases open in the time range.
---------------------------------------------------------------------------
Figure 1. Number of Active Federal ESA-Related Cases Brought by Non-
Governmental Entities, FY 2009-12
Source: Department of Justice.
For all of these cases, DOJ acknowledged there is no accounting
available for the amount of Federal funds spent to pay the DOJ, the
Department of the Interior or other Federal agency attorneys assigned
as subject matter experts on each of these cases, or the administrative
costs associated with engaging in settlement discussions for these
cases. Also, according to a 2012 Government Accountability Office (GAO)
report, most Federal agencies within the Departments of the Interior
and Agriculture do not keep detailed records of the litigation,
including the cases where they are required to pay attorneys' fees, or
even the type of the cases that involve particular statutes such as the
ESA.\144\
---------------------------------------------------------------------------
\144\ GAO-12-417R, Report to Congressional Requesters; Subject:
Limited Data Available on USDA and Interior Attorney Fee Claims and
Payments, U.S. Government Accountability Office, 9 (2012) (http://
www.gao.gov/assets/600/590084.pdf).
---------------------------------------------------------------------------
Because there is no statutory requirement to maintain this
information, the House Natural Resources Committee was told that DOJ
and other departments do not keep records of these expenditures. DOJ
did track some payments to organizations for attorneys' fees and court
costs. A graph representing the top 15 payees of attorney fees for ESA
litigation between Fiscal Year 2009 and Fiscal Year 2012 is shown
below.
Figure 2. Non-Governmental Entities' Receipts of Federal Attorneys'
Fees on ESA-Related Cases, FY 2009-12
Source: Department of Justice.
As Figure 2 illustrates, several organizations filing ``citizen
suits'' have received millions of dollars in attorneys' fees from the
Federal Government. According to DOJ documents, ESA has cost American
taxpayers more than $15 million in attorneys' fees alone--in just the
past 4 years. These groups--and their lawyers--are making millions of
taxpayer dollars by suing the Federal Government, being deemed the
``prevailing party'' by Federal courts, and being awarded fees either
through settlement with DOJ or by courts.
According to the documents provided by DOJ, some attorneys
representing nongovernmental entities have been reimbursed at rates as
much as $500 per hour, and at least two lawyers have each received over
$2 million in attorneys' fees from filing ESA cases. With regard to the
mega-settlements, according to documents filed in the case, taxpayers
are on the hook for $128,158 in attorneys' fees to the CBD \145\ and
$167,602 to WildEarth Guardians.\146\
---------------------------------------------------------------------------
\145\ In Re Endangered Species Act Section 4 Deadline Litigation,
1:10-mc-00377, Feb. 2, 2012, MDL Dkt. No. 2165, Document 65 (http://
grazingforgrouse.com/sites/default/files/10-cv-
377%20Court%20Docket.pdf).
\146\ In Re Endangered Species Act Section 4 Deadline Litigation,
1:10-mc-00377, Feb. 2, 2012, MDL Dkt. No. 2165, Document 66 (http://
grazingforgrouse.com/sites/default/files/10-cv-
377%20Court%20Docket.pdf).
---------------------------------------------------------------------------
An expert who testified before the House Natural Resource Committee
calculated the estimated process-related costs to taxpayers associated
with the ``mega-settlements'' using the median administrative cost for
the Federal Government to prepare and publish ESA-related rules and
notices in the Federal Register, would be over $206 million.\147\
---------------------------------------------------------------------------
\147\ The Endangered Species Act: How Litigation is Costing Jobs
and Impeding True Recovery Efforts: Before the H. Comm. on Natural
Resources, 112th Cong., Dec. 6, 2011 (written testimony of Karen Budd-
Falen, Budd-Falen Law Offices, LLC., 6) (Editor's Note (22)).
---------------------------------------------------------------------------
FWS acknowledged that these ESA-related attorneys' fees have
already been paid from the Judgment Fund, which does not place a cap on
the amount of hourly fees that attorneys may receive. The U.S. Chamber
of Commerce recently reported that between 2009 and 2012, a total of 71
lawsuits were settled under circumstances that can be categorized as
``sue and settle,'' and have resulted in more than 100 new Federal
rules, many of which are major rules with compliance price tags of more
than $100 million annually.\148\
---------------------------------------------------------------------------
\148\ Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th Cong.
(2013) (written testimony of Matthew Hite, U.S. Chamber of Commerce, at
4) (Editor's Note (16)).
---------------------------------------------------------------------------
The Equal Access to Justice Act (``EAJA''), enacted in 1980, allows
the award of attorneys' fees in suits by or against the United States
in two situations: (1) where the prevailing party would be entitled to
attorneys' fees under common law, and (2) in all civil actions brought
by or against the United States unless the Federal Government proves
that its position was ``substantially justified,'' or that special
circumstances made an award unjust.\149\ EAJA was intended to provide
the financial means for individuals and small businesses to seek
judicial redress when harmed by the Federal Government. The law set
several hurdles to ensure that taxpayer reimbursement of attorneys'
fees is kept in check.
---------------------------------------------------------------------------
\149\ 5 U.S.C. 504 (http://www.gpo.gov/fdsys/granule/USCODE-2011-
title5/USCODE-2011-title5-partI-chap5-subchapI-sec504/content-
detail.html) and 28 U.S.C. 2412(d) (http://www.gpo.gov/fdsys/pkg/
USCODE-2012-title28/pdf/USCODE-2012-title28-partVI-chap161-
sec2412.pdf); see also Henry Cohon, et al., Cong. Research Serv.,
Awards of Attorneys' Fees by Federal Courts and Federal Agencies, Order
Code 94-970 (2008) (http://www.fas.org/sgp/crs/misc/94-970.pdf).
---------------------------------------------------------------------------
For example, the law makes individuals with a net worth of over $2
million, and for profit businesses with a net worth of over $7 million
ineligible for EAJA reimbursement. However, the law sets no such cap on
nonprofit organizations. The effect is large, deep-pocketed
environmental groups with annual revenues well over $100 million are
reaping taxpayer reimbursements from a law intended for the ``little
guy.'' Additionally, while there is a loose fee cap of $125 per hour
embedded in EAJA, environmental attorneys routinely argue that their
legal expertise is ``specialized'' and just as routinely avoid the $125
fee cap. As a result, environmental legal shops can and do charge the
taxpayer upwards of $300, $400, even $500 per hour using a law written
for those who have no legal shops at all.\150\
---------------------------------------------------------------------------
\150\ Henry Cohon, et al., Cong. Research Serv., Awards of
Attorneys' Fees by Federal Courts and Federal Agencies, Order Code 94-
970 (2008) (http://www.fas.org/sgp/crs/misc/94-970.pdf). See also:
Lowell E. Baier, Reforming the Equal Access to Justice Act, Journal of
Legislation, Notre Dame Law School, Vol. 38 (2012).
---------------------------------------------------------------------------
Unlike EAJA, the ESA has no restriction that attorneys' fees be
paid only to prevailing parties, and no limit to the amount of
attorneys' fees that can be awarded. In determining attorney fees for
ESA cases, the courts use a lodestar approach in setting the rate of
fees--determining the number of hours reasonable expended multiplied by
a reasonable hourly rate. Courts have determined that a reasonable
hourly rate takes into account ``the rate prevailing in the community
for similar services by lawyers of reasonably comparable skill,
experience, and reputation.'' \151\ This approach allows exorbitant
attorneys' fees rates paid by large private sector corporations to be
imposed by courts for litigious groups acting in the ``public
interest,'' and reimbursed by the taxpayers.
---------------------------------------------------------------------------
\151\ Conservation Law Found. of New England, Inc. v. Watt, 654 F.
Supp. 706 (D. Mass 1984) (https://casetext.com/case/conservation-law-
found-of-new-england-v-watt-2/).
---------------------------------------------------------------------------
In addition to the lucrative source of federally-funded attorneys'
fees, several of the most litigious environmental groups have also been
rewarded Federal grants by the very Federal agencies they sue. During
the Obama Administration, according to the FWS, the Defenders of
Wildlife was awarded three grants totaling $25,000, WEG was awarded two
grants totaling $100,000 and the National Wildlife Federation was
awarded 11 grants totaling $376,106.\152\ Money is fungible, and these
organizations, as a result of these Federal taxpayer-funded grants,
have been afforded more available resources to target lawsuits against
Federal agencies.
---------------------------------------------------------------------------
\152\ Spending for the National Oceanic and Atmospheric
Administration, the Office of Insular Affairs, the U.S. Fish and
Wildlife Service and the President's Fiscal Year 2013 Budget Request
for these Agencies: Oversight Hearing Before the H. Subcomm. on
Fisheries, Wildlife, Oceans and Insular Affairs of the H. Comm. on
Natural Resources, 112th Cong. (2012) (question for the record response
of Dan Ashe, U.S. Fish and Wildlife Service) (Editor's Note (15)).
---------------------------------------------------------------------------
Deadline Lawsuits on Process Not Substance
In addition to filing lawsuits, litigious groups have filed
increasing numbers of petitions under the ESA, seeking to list species
as endangered or threatened under the Act. Under the Act, the FWS or
NMFS must make a finding within 90 days of receiving a petition as to
whether there is ``substantial information'' indicating whether the
petitioned listing may be warranted.
After this 90 day finding, there are many statutorily prescribed
deadlines and decisions that the agency must make regarding each
petition.\153\ While the statute may be well-intentioned in formulating
a timeline for agency decision making, special interest groups
attempting to list hundreds of species at a time was not what was
intended and serves only as a vehicle for an award of attorneys' fees,
as the deadlines become impossible to meet.
---------------------------------------------------------------------------
\153\ Decisions to be made include ``substantial information'' or
``not substantial information'' that the listing may be warranted, a 12
month finding from the date of the petition or statue review that can
either be ``not warranted finding,'' ``warranted finding,'' or
``warranted but precluded finding.'' Depending on the finding, there is
an additional timeframe (60 days) for additional decisions to be made
whether to list the species, and additional timelines for publishing
information in the Federal Register, only to then require a decision of
whether critical habitat should be designated for the species--which
has its one timelines and decision trees.
---------------------------------------------------------------------------
Even proponents of current implementation of ESA will admit that
mega-petitions and endless lawsuits do not serve the purpose of the
statute. Mr. Gary Frazer, FWS's assistant director for the Endangered
Species Program recently conceded that these ``mega-petitions'' can be
problematic. When asked about CBD's July 10, 2012 petition to list 53
amphibians and reptiles, Frazer stated, ``[w]e're a field-based
organization. The people that have expertise in these species are going
to be scattered across the whole country. Just the coordination
required within that initial review is a substantial effort.'' \154\
Frazer earlier stated, ``[t]hese mega-petitions are putting [the FWS]
in a difficult spot, and they're basically going to shut down our
ability to list any candidates in the foreseeable future.'' \155\
---------------------------------------------------------------------------
\154\ Helen Thompson, Citizen provision found beneficial to U.S.
Endangered Species Act, Nature News Blog, Aug. 16, 2012 (http://
blogs.nature.com/news/2012/08/citizen-provision-found-beneficial-to-us-
endangered-species-act.html).
\155\ Todd Woody, Wildlife at Risk Face Long Line at U.S. Agency,
N.Y. Times, Apr. 20, 2011 (http://www.nytimes.com/2011/04/21/science/
earth/21species.html?pagewanted=all&_r=0).
---------------------------------------------------------------------------
These multi-species petitions are filed without regard to the
ability of FWS and NMFS to actually complete the task requested. In
fact, it appears as though it is precisely because these agencies will
be unable to complete the requested task that the suits are filed--
thereby guaranteeing a ``successful'' decision and a likely award of
attorneys' fees.
Documents received by the House Natural Resources Committee from
the FWS show the incredibly broken system, with environmental groups
filing notices of intent to sue if the government does not make
species-specific findings on more than 400 species within a 3 month
time-frame. In one example, Forest Guardians (the predecessor
organization to WEG) submitted a petition to FWS in June 2007 to list
569 species. By October 2007, the Service had ``only'' listed 94.
Forest Guardians threatened a lawsuit if FWS if it did not make the
required ESA 90 day finding on their 475-species listing petition
within sixty days.\156\
---------------------------------------------------------------------------
\156\ A Petition to List All Critically Imperiled or Imperiled
Species in the Southwest United States as Threatened or Endangered
Under the Endangered Species Act, Forest Guardians, June 18, 2007
(http://www.wildearthguardians.org/support_docs/petition_protection-
475-species_6-21-07.pdf).
---------------------------------------------------------------------------
For the 4 years leading up to the mega-settlements, the FWS
received petitions to list more than 1,230 species,\157\ with dozens of
Notices of Intent to sue based on the ESA. These petitions often number
thousands of pages in length.
---------------------------------------------------------------------------
\157\ Todd Woody, Wildlife at Risk Face Long Line at U.S. Agency,
N.Y. Times, Apr. 20, 2011 (http://www.nytimes.com/2011/04/21/science/
earth/21species.html?pagewanted=all&_r=0).
---------------------------------------------------------------------------
Witnesses have testified that time-frames provided currently under
ESA are not feasible, and that groups are litigating not over whether a
species ought to be listed, but that the Federal Government can't
comply with rigid 90 day or 12 month time-frames set by ESA.\158\ As a
result of FWS' focus on listings, others have complained that
opportunities for public comment and engagement, and accessibility to
scientific data supporting significant ESA proposals have been short-
changed, often with the Federal agencies citing deadlines from the
mega-settlement as the excuse.\159\
---------------------------------------------------------------------------
\158\ The Endangered Species Act: How Litigation is Costing Jobs
and Impeding True Recovery Efforts: Oversight Hearing Before the H.
Comm. On Natural Resources, 112th Cong. (2011) (statement of Karen
Budd-Falen, Budd-Falen Law Offices, LLC., at 50) (Editor's Note (2)).
\159\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (statement of Tom Jankovsky, Garfield County,
Colorado, at 59) (Editor's Note (4)).
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What are the Roles of State, Tribal and Local Governments and Private
Landowners in Recovering Species?
Working Group Conclusion: ESA shuts out states, tribes, local
governments, and private landowners not only in key ESA decisions but
in actual conservation activities to preserve and recover species.
States and Local Government Not Involved in Decisions to Accept
Petitions to List or in Settlements with Litigious Groups
The ESA includes a specific section that was intended to ensure a
prominent role for states in species conservation and recovery. Section
6(a) of the ESA contemplates conservation of species that involves a
strong Federal-state partnership, and provides that ``in carrying out
the program authorized by the Act, the Secretary shall cooperate to the
maximum extent practicable with the States.'' \160\ However, the
bipartisan Western Governors' Association, representing 22 states and
American Samoa, has raised concerns that states' role of species
management under ESA and its current implementation ``is largely
optional and has been provided by the Federal Government
inconsistently.'' \161\
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\160\ Endangered Species Act D Section 6, U.S. Fish and Wildlife
Service (http://www.fws.gov/endangered/laws-policies/section-6.html).
\161\ Endangered Species Act Policy Resolution 13-08, Western
Governors' Association (http://naturalresources.house.gov/
uploadedfiles/westerngovernorsesa.pdf).
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One state official testified that the FWS' handling of settlements
and responses to listing petitions has not been conducive to state
participation.\162\ Once a Federal listing occurs, states and local
entities note that the Federal Government takes over all coordination
of the species and related activities.\163\ However, even a well-
intended cooperative agreement to consolidate two permitting processes
into one between a state and the FWS, utilizing section 6 of ESA,\164\
was threatened with a 60 day Notice of Intent to sue.\165\ Heralded as
the ``first of its kind'' by the Florida Commission's Executive
Director and the FWS Regional Director, and viewed as ``a positive step
forward . . . freeing up resources to better conserve this state's
treasured fish and wildlife,'' \166\ the agreement was targeted for
lawsuit by the CBD and the Conservancy of Southwest Florida.\167\
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\162\ Taxpayer-Funded Litigation: Benefitting Lawyers and Harming
Species, Jobs and Schools: Oversight Hearing Before the H. Comm. On
Natural Resources, 112th Cong. (2012) (statement of Jerry Patterson,
State of Texas, at 30) (Editor's Note (7)).
\163\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (statement of Tyler Powell, State of Oklahoma, at
50) (Editor's Note (4)).
\164\ Cooperative agreement between U.S. Fish and Wildlife Service
and Florida Fish and Wildlife Conservation Commission, May 14, 2012
(http://www.fws.gov/northflorida/Guidance-Docs/FWC_Section_6/
20120514_ca_FWS_FWC_2012_S6_CA_signed_web.pdf).
\165\ Letter from Jason Totoiu, General Counsel, Everglades Law
Center, to Ken Salazar, Secretary, U.S. Department of the Interior; Dan
Ashe, Director, U.S. Fish and Wildlife Service; Cindy Dohner, Southeast
Regional Director, U.S. Fish and Wildlife Service (Mar. 28, 2013)
(http://www.biologicaldiversity.org/programs/biodiversity/
endangered_species_act/pdfs/2013_03_28_FL_Section_6_Agreement_60-
Day_Letter.pdf).
\166\ Nick Wiley and Cindy Dohner, Column: Joining forces to
protect Florida fish, wildlife, Tampa Bay Times, Apr. 11, 2013 (http://
www.tampabay.com/opinion/columns/column-joining-forces-to-protect-
florida-fish-wildlife/2114590).
\167\ Press Release, Illegal Delegation of Federal Permitting
Authority to State Weakens Endangered Species Act in Florida!, Center
for Biological Diversity; Conservancy of Southwest Florida (2013)
(http://www.conservancy.org/document.doc?id=560).
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States and Local Governments are often at Odds with Federal Government
on Management/Conservation Priorities within their own Borders
Representatives of states have testified on multiple occasions that
states are best equipped to manage resources within their own
boundaries,\168\ and that Federal plans can complicate species
conservation because they are often inconsistent with state and local
plans.\169\ States, tribal and local governments are devoting hundreds
of millions of dollars annually in on-the-ground species protection
actions, and are leveraging those funds with private conservation
efforts. For example, the State of Texas has in place nearly 8,000
wildlife management plans covering 30 million acres of privately-owned
land in the state.\170\ At the same time, litigious groups are devoting
little to on-the-ground species conservation or recovery.\171\
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\168\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (testimony of Tyler Powell, State of Oklahoma, at 9)
(Editor's Note (4)).
\169\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (statement of Tyler Powell, State of Oklahoma, at
61) (Editor's Note (4)).
\170\ Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th Cong.
(2013) (written testimony of Ross Melinchuk, Texas Parks and Wildlife
Department, at 1) ((Editor's Note (23)).
\171\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (statement of Steve Ferrell, State of Wyoming, at
68-69) (Editor's Note (4)).
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The goal of these efforts is to manage species at the state level
without the need for a Federal ESA listing, and to ensure better
cooperation. In June 2012, the FWS reversed its earlier determination
to list the Dunes Sagebrush Lizard as endangered, following approval of
the Texas-developed State Conservation Plan, which allowed for adaptive
management to protect both the lizard and the state's economic
activities in an area that produces fourteen percent of the nation's
oil, and 47,000 jobs.\172\ Not satisfied with this, CBD and Defenders
of Wildlife sued the FWS, forcing the State of Texas Comptroller to
seek permission in Federal district court to intervene in the lawsuit
just to defend the state's own conservation plan and the determination
that an ESA listing of the lizard was not warranted.\173\
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\172\ Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th Cong.
(2013) (written testimony of Roger Marzulla, Marzulla Law LLC, at 7)
(Editor's Note (24)); 77 Fed. Reg. 26872 (June 2012) (http://
www.gpo.gov/fdsys/pkg/FR-2012-11-02/html/2012-26872.htm).
\173\ Neena Satija, Judge Allows Comptroller to Intervene in Lizard
Lawsuit, The Texas Tribune, Nov. 7, 2013 (http://www.texastribune.org/
2013/11/07/judge-allows-comptroller-intervene-lizard-lawsuit/).
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It would seem that a clear reading of section 6 would lead to
promoting examples where states and the Federal Government can
effectively manage ESA-listed species cooperatively. However, last
year, a state's attempt to negotiate cooperative agreements with the
FWS under section 6 to improve species management and streamline
permitting processes, resulted in a lawsuit by CBD and other
groups.\174\ States view this as a ``huge chilling effect'' for other
states and private landowners desiring to enter into agreements for
constructive conservation without being sued.\175\
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\174\ Press Release, Illegal Delegation of Federal Permitting
Authority to State Weakens Endangered Species Act in Florida!, Center
for Biological Diversity; Conservancy of Southwest Florida (2013)
(http://www.conservancy.org/document.doc?id=560).
\175\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (statement of Steve Ferrell, State of Wyoming, at
77) (Editor's Note (4)).
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Since states are often developing more current and better data than
Federal agencies for species conservation, they also are developing
their own defensible recovery goals and plans for species, and in
certain cases, doing so because the Federal agencies failed to do
it.\176\
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\176\ Taxpayer-Funded Litigation: Benefitting Lawyers and Harming
Species, Jobs and Schools: Oversight Hearing Before the H. Comm. On
Natural Resources, 112th Cong. (2012) (statement of Kent Holsinger,
Holsinger Law, LLC, at 42) (Editor's Note (7)).
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Recent appropriations language directed Federal agencies to use
state wildlife data and analyses `` `as a principle source' to inform
their land use, land planning and related natural resource decisions,
to not duplicate analysis of raw data previously prepared by the
states, and that Federal agencies should provide their data to state
wildlife managers to ensure that the most complete data is available to
be incorporated into all decision support systems.'' \177\ This action
would help address concerns that significant Federal ESA decisions lack
sufficient or unjustified data.
---------------------------------------------------------------------------
\177\ H.R. Rep. No. 113-, at 13 (http://appropriations.house.gov/
uploadedfiles/hrpt-113-hr-fy2014-interior.pdf).
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In addition to states' concerns about Federal ESA implementation,
local counties similarly are legitimately concerned that FWS and NMFS
are ignoring clear statutory requirements to coordinate and resolve
inconsistencies with counties' plans and ensure public involvement on
ESA actions that impact county and tribal land use.
For example, Section 202(c)(9) of the Federal Land Policy
Management Act requires the Secretary of the Interior:
``to coordinate . . . with the land use planning and management
programs
of . . . the States and local governments'' and ``shall, to the
extent he finds practical, keep apprised of State, local, and
tribal land use plans; assure that consideration is given to
those State, local, and tribal plans that are germane in the
development of land use plans for public lands; assist in
resolving, to the extent practical, inconsistencies between
Federal and non-Federal Government plans, and shall provide for
meaningful public involvement of State and local government
officials, both elected and appointed, in the development of
land use programs, land use regulations, and land use decisions
for public lands, including early public notice of proposed
decisions which may have a significant impact on non-Federal
lands.'' \178\
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\178\ 43 U.S.C. 1712, Sect. 202(c)(9) (http://www.law.cornell.edu/
uscode/text/43/1712).
Nine Colorado counties have developed their own local sage grouse
habitat plans and have sought the Federal agencies' to coordinate and
reconcile their locally-developed maps and data. They remain concerned
both that the BLM has refused to resolve clear policy differences
between the Federal and local plans, and that ultimately, the FWS will
impose a ``one size fits all'' habitat model that is highly restrictive
and does not match their own plan for sage grouse.\179\ One county
official testified that his rural Washington county was forced to file
formally for legal recognition as a ``cooperating agency'' to ensure
the Forest Service and FWS consulted with them on their habitat plans
for listed spotted owl.\180\
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\179\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (testimony of Tom Jankovsky, Garfield County,
Colorado, at 38) (Editor's Note (4)).
\180\ Failed Federal Forest Policies: Endangering Jobs, Forests and
Species: Oversight Field Hearing Before the H. Comm. On Natural
Resources, 112th Cong. (2012) (testimony of Paul Pearce, Skamania
County, Washington, at 8) (Editor's Note (17)).
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In an example where the rush to meet mega-settlement deadlines can
lead to errors and poor consequences for local governments and private
landowners, the FWS failed to properly notify a local county and
private landowners on a proposal to list a plant subspecies, including
designation of over 400 acres of private irrigated farmland. The FWS
was forced to seek permission from the CBD to amend the original
settlement deadline to list, and refused to further study DNA data
provided to them which completely contradicted the FWS' science in its
ESA listing. The FWS nevertheless proceeded to list the plant within
the settlement deadline.\181\
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\181\ Geoff Folsom, Bladderpod to be listed as protected species on
Federal lands, Tri-City Herald, Dec. 19, 2013 (http://www.tri-
cityherald.com/2013/12/19/2738671/bladderpod-to-be-listed-as-
protected.html); Transparency and Sound Science Gone Extinct?: The
Impacts of the Obama Administration's Closed-Door Settlements on
Endangered Species and People: Oversight Hearing Before the H. Comm. On
Natural Resources, (Editor's Note (1)) 113th Cong. (2013) (testimony of
Kent McMullen, Franklin County Natural Resources Advisory Committee, at
21).
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Case Studies
The Greater Sage Grouse
Perhaps the most prominent and likely most sweeping potential
listing under the mega-settlements is the Greater Sage Grouse (GSG).
The GSG is found in Washington, Oregon, Idaho, Montana, North Dakota,
California, Nevada, Utah, Colorado, South Dakota and Wyoming. Listing
the GSG would directly impact land management, economies and domestic
energy supplies and production in these states.
Litigious environmental groups, through numerous lawsuits dating
back to 2003, have sought Federal ESA protection for the greater sage-
grouse for years.\182\ Between 1999 and 2003, environmental groups
filed eight petitions to list the GSG. FWS responded with a finding in
2005 that an ESA listing was ``not warranted.'' Five lawsuits against
the FWS were filed in multiple courts challenging FWS'
determination.\183\
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\182\ American Lands Alliance, et al. v. Norton, et al., 242 F.
Supp. 2d 1 (2003) (http://www.leagle.com/decision/
2003243242FSupp2d1_1243.xml/AMERICAN%20LANDS%20ALLIANCE%20v.%20NORTON).
\183\ Overview of the Greater Sage-Grouse and Endangered Species
Act Activities, U.S. Fish and Wildlife Service (http://www.fws.gov/
mountain-prairie/species/birds/sagegrouse/
Primer4SGOverviewESAActivities.pdf).
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Source: Bureau of Land Management.
In 2010, FWS reversed its determination, finding that an ESA
listing of sage grouse was ``warranted, but precluded'' by higher
priority species activities. On March 8, 2010, 3 days after the FWS's
announcement, the Western Watersheds Project (WWP) filed a lawsuit
challenging the government's decision to not list the GSG.\184\ On June
28, 2010 the WWP, the CBD and WEG filed an amended complaint to force
the agency to promptly publish a proposed ESA listing for the GSG.\185\
Then, as part of the May 2011 ``mega settlement'' with WEG, the FWS
agreed to review the ESA status of hundreds of candidate species,
including the GSG. The settlement stipulates that FWS review and make a
listing determination for the GSG no later than 2015.\186\
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\184\ Western Watersheds Project v. U.S. Fish and Wildlife Service,
No. 06-cv-277-BLW (D. Idaho Mar. 8, 2010) (http://plf.typepad.com/
files/sage-grouse-complaint.pdf).
\185\ Western Watersheds Project et al. v. U.S. Fish and Wildlife
Service, No. 10-cv-229-BLW (D. Idaho June 28, 2010) (http://
www.biologicaldiversity.org/species/birds/
Mono_Basin_area_greater_sage_grouse/pdfs/
Sage_Grouse_WBP_amended_complaint.pdf).
\186\ In re Endangered Species Act Section 4 Deadline Litigation,
Stipulated Settlement Agreement, MDL Docket No. 2165 (May.10, 2010)
(http://www.fws.gov/endangered/improving_ESA/
exh_1_re_joint_motion_FILED.PDF).
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A GSG listing would likely harm economies throughout the West. The
potential impact of a sage grouse listing is so great that it has
caused at least one industry group to refer to it as ``the spotted owl
on steroids.'' \187\ Most areas where sage grouse have been identified
are managed by the BLM, which is required by Federal law to manage
these areas for ``multiple use and sustained yield''.\188\ A study by
the Policy Analysis Center for Western Public Lands found that,
``[p]ublic land is an important seasonal source of forage for western
ranches. Thus, eliminating BLM grazing to improve habitat for sage
grouse would have a significant impact on the economic viability of
affected ranches.'' \189\ Additionally, earlier this year, the BLM
announced it was delaying for 2 years a decision whether to approve a
wind project that would cross 30,000 acres of BLM-owned land.\190\
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\187\ Effect of the President's FY 2013 Budget and Legislative
Proposals for the Bureau of Land Management and the U.S. Forest
Service's Energy and Minerals Programs on Private Sector Job Creation,
Domestic Energy and Minerals Production and Deficit Reduction: Hearing
Before the Subcomm. on Energy and Mineral Res. Of the H. Comm. on
Natural Resources, 112th Cong., (2012) (written testimony of Laura
Skaer, Northwest Mining Association, at 8) (Editor's Note (25)).
\188\ Pub. L. No. 94-579 (http://www.blm.gov/flpma/FLPMA.pdf).
\189\ L. Allen Torell, Ranch-Level Impacts of Changing Grazing
Policies on BLM Land to Protect the Greater Sage-Grouse: Evidence from
Idaho, Nevada and Oregon, Policy Analysis Center for Western Public
Lands (http://www.ag.uidaho.edu/aers/PDF/naturalresource/Sage-
grouseEcon.pdf).
\190\ Scott Streater, In Idaho, sage grouse vs. major wind project
is no contest, E&E News, Mar. 9, 2012 (http://www.eenews.net/eenewspm/
2012/03/09/1).
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In a FWS' press release issued prior to the mega-settlement,
Interior Secretary Ken Salazar stated: ``we must find common-sense ways
of protecting, restoring, and reconnecting the Western lands that are
most important to the species' survival while responsibly developing
much-needed energy resources. Voluntary conservation agreements,
Federal financial and technical assistance and other partnership
incentives can play a key role in this effort.'' \191\ Efforts by
states to conserve the GSG also predate the mega-settlement and go back
as far as 2008.\192\ Several western states have subsequently embarked
on range-wide efforts to protect sage grouse habitat in an effort to
avoid Federal listing.\193\ The investment of time and resources at the
state level has been considerable and according to one state wildlife
manager, amounts to ``numbers that we have never seen before in my
profession being committed by a State to a single species.'' \194\
Nonetheless, despite former Secretary Salazar's comments and because of
the looming ``mega-settlement'' deadline, these state efforts still
face the uncertainty of a listing that could undermine state efforts to
conserve the GSG and discourage similar state efforts in the
future.\195\
---------------------------------------------------------------------------
\191\ News Release, U.S. Department of the Interior, Interior
Expands Common-Sense Efforts to Conserve Sage Grouse Habitat in the
West (Mar. 5, 2010) (http://www.fws.gov/mountain-prairie/species/birds/
sagegrouse/PressReleaseDOI03052010.pdf).
\192\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (testimony of Steve Ferrell, State of Wyoming, at
35) (Editor's Note (4)).
\193\ Id. at 35-36
\194\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (statement of Steve Ferrell, State of Wyoming, at
68) (Editor's Note (4)).
\195\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (testimony of Steve Ferrell, State of Wyoming, at
36) (Editor's Note (4)).
---------------------------------------------------------------------------
State-led conservation efforts also face uncertainty as the BLM and
FWS pursue of GSG-related regulatory actions in anticipation of the
mega-settlement deadline. In fact, the BLM issued internal regulatory
memoranda that threatened to severely restrict activities through 79
BLM Resource Management Plans affecting nearly 250 million acres.\196\
Areas identified as ``priority'' or ``critical'' habitat for sage
grouse could delay or completely shut down mining, timber, grazing,
energy development, and other activities in millions of acres in the
interior West.\197\ In addition, BLM issued a December 2011 National
Technical Team (NTT) report advocating stringent GSG habitat
protections throughout its range in the eleven states.\198\
---------------------------------------------------------------------------
\196\ Memorandum from the Director, U.S. Bureau of Land Management,
to All Field Office Officials (Dec. 22, 2012) (http://www.blm.gov/wo/
st/en/info/regulations/Instruction_Memos_and_Bulletins/
national_instruction/2012/IM_2012-043.html); See also Memorandum from
the Director, U.S. Bureau of Land Management, to All Field Office
Officials (Dec. 27, 2012) (http://www.blm.gov/wo/st/en/info/
regulations/Instruction_Memos_and_Bulletins/national_instruction/2012/
IM_2012-044.html).
\197\ Taxpayer-Funded Litigation: Benefitting Lawyers and Harming
Species, Jobs and Schools: Oversight Hearing Before the H. Comm. On
Natural Resources, 112th Cong. (2012) (written testimony of Kent
Holsinger, Holsinger Law, LLC, at 28) (Editor's Note (7)).
\198\ Memorandum from the Director, U.S. Bureau of Land Management,
to All Field Office Officials (Dec. 27, 2012) (http://www.blm.gov/wo/
st/en/info/regulations/Instruction_Memos_and_Bulletins/
national_instruction/2012/IM_2012-044.html).
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One of the main contributing factors listed by FWS for the decline
of GSG populations is wildfire destruction of sagebrush habitat. The
BLM has noted that ``Wildfires are a leading cause of sagebrush loss.''
\199\ Land managers throughout the west are concerned that habitat loss
to wildfire could push a sage-grouse listing. Nevada State Forester
Pete Anderson recently stated, ``Virtually every time we're getting a
fire we're getting some impact to sage-grouse habitat.'' \200\
Ironically, ESA litigation, as noted earlier has, in many cases,
contributed to the poor forest health conditions that create greater
risk of wildfire.
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\199\ BLM Fire and Aviation, Sage-grouse Conservation Efforts, U.S.
Bureau of Land Management (http://www.blm.gov/pgdata/etc/medialib/blm/
wo/Communications_Directorate/public_affairs/sage-grouse_planning/
documents.Par.25064.File.dat/SageGrouseFire.pdf).
\200\ Jeff DeLong, Big fire season further threat to Nevada's sage
grouse habitat, Reno Gazette Journal, July 6, 2012 (http://www.rgj.com/
apps/pbcs.dll/article?AID=2012
307030055&nclick_check=1).
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Recently, the Governor of Colorado, in a letter to the BLM,\201\
raised concerns over measures included in the NTT and advocated his own
state's plan for conserving GSG over a ``one size fits all''
approach.\202\ The NTT Report has generated criticism, not only from
states that have complained the report would ``setback to sage grouse
conservation,'' \203\ but from other scientists.\204\
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\201\ John Stroud, Governor urges consideration of local sage-
grouse alternative, The Post Independent, Jan. 15, 2014 (http://
www.postindependent.com/news/9761689-113/blm-plan-governor-colorado).
\202\ Valerie Richardson, Colorado governor: Interior bureaucrats
biased on species issue, The Washington Times, Nov. 25, 2013 (http://
www.washingtontimes.com/blog/inside-politics/2013/nov/25/colo-gov-
interior-bureaucrats-biased-species-issue/).
\203\ Letter from James Douglas, President, Western Association of
Fish and Wildlife Agencies, to Sally Jewell, Secretary, The Department
of the Interior (May 16, 2013) (http://esawatch.org/wp-content/uploads/
2013/05/Scientist-Sign-On-Response-Letter-051613.pdf).
\204\ Dorothy Kosich, NWMA study challenges BLM sage grouse
management report validity, Mineweb, May 22, 2013 (http://
www.mineweb.com/mineweb/content/en/mineweb-sustainable-
mining?oid=190998&sn=Detail).
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According to peer review of the NTT Report conducted prior to its
release, it does not represent the ``best available science;'' imposes
``one-size-fits-all'' regulatory prescriptions; and includes a number
of invalid assumptions, mischaracterization and misrepresentation of
sources; omission of existing programs that benefit GSG, and injection
of personal opinion over science; contains unachievable measures; and
is inconsistent with agency multiple-use regulations.\205\ The NTT
Report also fails to adequately address the main threats to GSG: fire
and invasive species.\206\ One peer reviewer stated the report ``seems
a strange blend of policy loosely backed by citations, with no analysis
of science,'' and that requirements called for in the report appear not
to have any ``rational scientific basis.'' \207\ Other industry
interests have noted that the NTT Report has been used to justify 4
mile buffers around areas it identifies as ``leks,'' a standard that
could shut down access to large swaths of economic and energy
activities in the interior west.\208\
---------------------------------------------------------------------------
\205\ Megan Maxwell, BLM's NTT Report: Is it the Best Available
Science or a Tool to Support a Pre-Determined Outcome?, May 20, 2013
(http://www.nwma.org/wp-content/uploads/NWMA-Review-of-NTT-Report-May-
2013.pdf).
\206\ 75 Fed. Reg. 13910 at 13931-4 (https://
www.federalregister.gov/articles/2010/03/23/2010-5132/endangered-and-
threatened-wildlife-and-plants-12-month-findings-for-petitions-to-list-
the-greater); and ESA Decisions by Closed-Door Settlement: Short-
Changing Science, Transparency, Private Property, and State & Local
Economies: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (written testimony of Megan Maxwell, at 3)
(http://naturalresources.house.gov/uploadedfiles/maxwelltestimony12-12-
13.pdf).
\207\ Megan Maxwell, BLM's NTT Report: Is it the Best Available
Science or a Tool to Support a Pre-Determined Outcome?, May 20, 2013
(http://www.nwma.org/wp-content/uploads/NWMA-Review-of-NTT-Report-May-
2013.pdf).
\208\ Letter from Kathleen Sgamma, Vice President of Government and
Public Affairs, Western Energy Alliance, to Sally Jewell, Secretary,
The Department of the Interior (Nov. 19, 2013) (Editor's Note: (26)).
---------------------------------------------------------------------------
Turning to the FWS, the agency created a ``Conservation Objectives
Team'' (COT), made up of Federal and state technical advisors, who
released a Report in March 2013 designed to encourage states, local and
private landowners ``to take conservation action,'' such as ``modifying
or amending regulatory frameworks to ensure the long-term conservation
of the species by avoiding, minimizing, or mitigating the threats to
the species.'' \209\ The COT Report has also drawn criticism from many
in that it does not include any independent data or analyses, and omits
any accounting for the major causes of decline for the sage grouse,
including hunting and drought.\210\ In addition, individuals who were
tasked with peer reviewing the report received lucrative contracts and
grants to study the GSG from the U.S. Geological Service and the FWS,
an apparent conflict of interest. Further, the COT Report omitted
important scientific studies and failed to use the most current state
and local maps.\211\
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\209\ Greater Sage-Grouse Conservation Objectives Team Report, U.S.
Fish and Wildlife Service (http://www.fws.gov/nevada/nv_species/
documents/sage_grouse/Greater_Sage-grouse_Fact_Sheet_MPR082312.pdf).
\210\ Letter from Kathleen Sgamma, Vice President of Government and
Public Affairs, Western Energy Alliance, to Sally Jewell, Secretary,
The Department of the Interior (Nov. 19, 2013) (Editor's Note (26)).
\211\ Id.
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Despite all of these criticisms, the FWS released proposed rules on
October 28, 2013 to list a population of GSG between northwest Nevada
and northeast California as threatened, and to designate critical
habitat on close to 2 million acres in parts of three California
counties and eight Nevada counties. The FWS is seeking to finalize a
separate population of Gunnison sage grouse found in Utah and Colorado
by March 2014.
Meanwhile, the BLM, working jointly with the Forest Service, has
the stated goals of preparing Environmental Impact Statements to
address the effects of implementing proposed GSG conservation measures
for all of the states, issuing draft revised Resource Management Plans
in Spring 2014, and finalizing these documents in Fall 2014.\212\ BLM
acknowledges it has rushed to meet deadlines set by the mega-
settlements to avoid listing the GSG. The BLM's website states: ``Given
the tight time frames in which the FWS must make its listing decision,
it's crucial that we get this done right and done quickly.'' \213\
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\212\ News and Information, U.S. Bureau of Land Management (http://
www.blm.gov/wo/st/en/prog/more/sagegrouse/news_and_information.html).
\213\ Memorandum from the Director, U.S. Bureau of Land Management,
to All Field Office Officials (Dec. 27, 2012) (http://www.blm.gov/wo/
st/en/info/regulations/Instruction_Memos_and_Bulletins/
national_instruction/2012/IM_2012-044.html).
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In summary, the GSG is a case study of how the current
implementation of the ESA through litigation is not working well for
either species or people. While states, local governments, and other
private landowners have invested significant resources to conserve the
GSG and ensure its population remains healthy, the Federal Government
appears to be reacting to its own ESA settlement deadlines and threats
of future litigation, in the meantime basing its decisions on data that
has been seriously questioned. The FWS' litigation-driven reversal of
its 2005 determination that an ESA listing of GSG was not warranted
undermines multiple state and local efforts to protect the sage grouse.
In addition, the Federal Government's failure to manage Federal lands
at risk of catastrophic wildfires and invasive species that threaten
the GSG, is putting the states and their citizens in a `no win'
situation. Further, the GSG is an example of how lack of accessible and
transparent data undermines the credibility of Federal ESA efforts.
The Lesser Prairie Chicken
The Lesser Prairie Chicken (LPC), found throughout 62,000 square
miles on the prairies of Kansas, Colorado, Oklahoma, Texas and New
Mexico, is one of the most sweeping listings included in the 2011 mega-
settlements.
State fish and wildlife agencies estimate the population in the
five-state region has varied over the past twelve years between 37,000
to 84,000.\214\ Of the habitat currently occupied by the LPC, 95
percent of that is on privately-owned lands. The FWS attributes the
main causes of prairie chicken decline on ``overutilization by domestic
livestock, oil and gas development, wind energy development, loss of
native rangelands to cropland conversion, herbicide use, fire
suppression and drought.'' \215\
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\214\ The Lesser Prairie-Chicken Range-Wide Conservation Plan,
Western Association of Fish and Wildlife Agencies, Oct. 2013 (http://
www.wafwa.org/documents/2013LPC
RWPfinalfor4drule12092013.pdf).
\215\ Questions and Answers for the Lesser-Prairie Chicken, U.S.
Fish and Wildlife Service, July 2012 (http://www.fws.gov/southwest/es/
Documents/R2ES/LPC_FAQ_18July2012.pdf).
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Source: U.S. Fish and Wildlife Service.
In October 1995, the Biodiversity Legal Foundation filed a petition
to list the LPC under the ESA, and in 1998, the FWS determined a
listing of LPC was ``warranted, but precluded by higher priority
species.'' \216\ Until 2007, the FWS categorized LPC near the bottom of
priority for listing. In 2008, without cooperating with the states, FWS
changed the priority status from an ``8'' (low priority) to a ``2''
(high priority) due to ``increasing and ongoing threats'' to the
species. In 2010, WEG filed a lawsuit against FWS to force a listing of
the LPC, and it was included in the 2011 mega-settlement with
provisions requiring FWS to make a determination in Fiscal Year 2012.
The FWS subsequently announced a proposal to list the LPC as
``threatened'' in December 2012, and is slated to make a final
determination in March 2014.\217\
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\216\ 63 Fed. Reg. 110, 31400 (1998) (http://ecos.fws.gov/docs/
federal_register/fr3634.pdf).
\217\ 77 Fed. Reg. 238, 72828 (2012) (http://www.gpo.gov/fdsys/pkg/
FR-2012-12-11/pdf/2012-29331.pdf).
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A significant amount of resources has already been devoted at the
state level for LPC conservation. A 2012 bipartisan letter signed by
over 20 House Members and Senators to the FWS advocating that ESA
listing was not warranted for the LPC, pointed out that more than $50
million in conservation, research and other activities had been devoted
across the five-state region.\218\ For example, the State of Oklahoma
has spent over $26 million on lesser prairie chicken habitat
conservation, research, land acquisition and development of habitat
conservation plans. Oklahoma undertook this effort with the philosophy
that conservation should be facilitated by the state, but developed in
a cooperative fashion with private landowners, and a coalition of state
agriculture, oil and gas, wind energy, and transportation industries
that all have a stake and that have a common goal of developing a plan
allowing both for species conservation and land use and
development.\219\
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\218\ Press Release, U.S. Senate Comm. On Environment and Public
Works, Bipartisan, Bicameral Letter Urges FWS to Make 'Not-Warranted'
Decision on Lesser Prairie Chicken (July 17, 2012) (http://
www.epw.senate.gov/public/index.cfm?FuseAction=Minority.PressReleases&
ContentRecord_id=96e8b405-802a-23ad-4a8f-
ad7669f36b56&Region_id=&Issue_id=87be918e-7e9c-9af9-7bce-c09203f891db).
\219\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (testimony of Tyler Powell, State of Oklahoma, at 8)
(Editor's Note (4)).
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Similarly, in Kansas, thousands of volunteers and 105 conservation
districts in every county have enrolled more than 2.3 million acres in
the USDA's Conservation Reserve Program, and private landowners are
concerned that a listing of the LPC could actually decrease
participation in voluntary programs designed to protect the
species.\220\ In Texas, the state has over 500,000 acres of land
voluntarily enrolled in a ``candidate conservation agreement with
assurances'' (CCAA) for the LPC with the goal of keeping it off the
list.\221\ Other entities in the affected states have spent significant
time and resources on CCAAs to avoid listing have raised concerns that
the FWS has indicated these voluntary efforts may not even be
considered in its decision whether or not to list the LPC.
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\220\ ESA Decisions by Closed-Door Settlement: Short-Changing
Science, Transparency, Private Property, and State & Local Economies:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (written testimony of Greg Foley, Kansas Department of
Agriculture, at 3) (Editor's Note (27)).
\221\ Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th Cong.
(2013) (written testimony of Ross Melinchuk, Texas Parks and Wildlife
Department, at 2) (Editor's Note (23)).
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This raises concerns that the FWS appears to be giving more
deference to litigious groups and settlement deadlines than to the
state wildlife agencies that have been doing the studies and on-the-
ground work.\222\
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\222\ Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th Cong.
(2013) (written testimony of Roger Kelley, Continental Resources, at 3)
(http://hastings.house.gov/uploadedfiles/kelleytestimony10-10-
2013.pdf).
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The states have been concerned that the FWS' approach of proposing
a ``4(d) rule''--a provision of ESA that authorizes FWS or NMFS to
define what activities are prohibited for species listed as
``threatened'' under ESA \223\--is premature, since the rule was
proposed months before FWS has stated it must make a final decision.
Many believe the FWS' proposed 4(d) rule indicates that the FWS has
already made up its mind to list the LPC.\224\ The states are also
concerned that a listing of LPC would result in a loss of the trust
relationships they have built with private landowners. A coalition of
32 Kansas counties affected by the potential listing of LPC prepared
its own plan and submitted it to the FWS. These counties have objected
to the FWS' settlement-driven deadlines to list species without proper
coordination with county governments where proposed ESA listings
occur.\225\
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\223\ Questions and Answers: Revised Proposed Special Rule for the
Lesser-Prairie Chicken, U.S. Fish and Wildlife Service, Dec. 10, 2013
(https://www.fws.gov/southwest/es/Documents/R2ES/
LPC_rev_4d_FAQs_FINAL_12-10-2013.pdf).
\224\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (testimony of Tyler Powell, State of Oklahoma, at 9)
(Editor's Note (4)).
\225\ Mike Corn, Counties set to talk chickens, The Hays Daily
News, Nov. 1, 2013 (http://hdnews.net/outdoors/LEPC-KNRC110113).
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On October 28, 2013, the FWS ``endorsed'' the five-state plan,
stating the plan ``provides a model for State leadership in
conservation of a species proposed for listing under the ESA.'' \226\
While some were encouraged that the FWS endorsement could lead to a
decision not to list the LPC, the FWS publicly has stated the
endorsement ``is not a decision . . . that implementing the plan will
preclude the need to protect the lesser prairie chicken under the
ESA.'' \227\
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\226\ Press Release, U.S. Fish and Wildlife Service, U.S. Fish and
Wildlife Service Endorses Western Association of Fish and Wildlife
Agencies Lesser Prairie-Chicken Range-Wide Conservation Plan (Oct. 23,
2013) (http://www.fws.gov/news/ShowNews.cfm?ID=E6267BFC-E38A-E402-
8295AE3A5FD77DF1).
\227\ Id.
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In short, this is another example of the FWS' mega-settlement
deadlines driving a sweeping potential listing decision over multiple
states' and landowners' good faith efforts to develop data and protect
species while also protecting other important economic and private
property interests. The FWS' escalating the priority of an LPC listing
this year raises questions about how states and private property owners
could ever prevent species listings.
The Northern Spotted Owl
The history of the Spotted Owl in the Northwest is a poster child
for ESA litigation crippling forest management, costing jobs, and
harming communities and species habitat. The Northern Spotted Owl was
listed as threatened under ESA on June 26, 1990.\228\ This listing and
a number of subsequent lawsuits led to mass shutdown of timber
harvesting activity in the Pacific Northwest. More than 30 timber sales
by the Forest Service and the BLM in Washington and Oregon were blocked
shortly after the Northwest Forest Plan became law due to management of
the spotted owl.\229\
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\228\ Northern Spotted Owl, U.S. Fish and Wildlife Service (http://
www.fws.gov/arcata/es/birds/NSO/ns_owl.html).
\229\ Oregon Natural Resources Council v. U.S. Forest Service, 59
F.Supp. 2d. 1085 (W.D. Wash. 1999), the court granted an injunction
against 9 timber sales (https://casetext.com/case/oregon-natural-
resources-council-v-us-forest/).
Comparison of Northern Spotted Owl critical habitat, 2005 vs.
2012.
Source: U.S. Fish & Wildlife Service.
``The Northern Spotted Owl is the wildlife species of choice to
act as a surrogate for old-growth protection, and I've often
thought that thank goodness the spotted owl evolved in the
Northwest, for it hadn't, we'd have to genetically engineer it.
It's the perfect species to use as a surrogate.'' \230\
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\230\ Brian E. Gray, The Endangered Species Act: Reform or
Refutation?, p. 7, 13 Hastings W.--Nw. J. Envtl. L. & Pol'y 1 (2007)
(http://repository.uchastings.edu/faculty_scholarship/178).
Shortly following the listing, the Federal Government, through the
Clinton Administration's Northwest Forest Plan, administratively
withdrew nearly 24 million acres of Federal land \231\--resulting in no
access to nearly 85% of the area available for timber harvest--from
active management and restricted harvest levels.\232\ As a result, over
400 lumber mills have closed across Oregon, Washington, Idaho, Montana,
and California, terminating over 35,000 direct jobs and countless more
indirect jobs \233\ (timber harvest activity results in approximately
29 indirect jobs for every million board feet of timber harvested).
This shift in Federal forest management policy directly impacted rural
timber-dependent counties and communities that had previously been
utilizing timber receipts for schools and roads for decades.
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\231\ 59 Fed. Reg. 76, (1994) (http://www.gpo.gov/fdsys/pkg/FR-
1994-04-20/html/94-9511.htm).
\232\ Failed Federal Forest Policies: Endangering Jobs, Forests and
Species: Oversight Field Hearing Before the H. Comm. On Natural
Resources, 112th Cong. (2012) (written testimony of Tom Nelson, Sierra
Pacific Industries, at 52) (Editor's Note (17)).
\233\ Paul F. Ehinger & Associates, Summary Description of Mill
Closure Data from 1990-2010, Dec. 15, 2010 (http://www.amforest.org/
images/pdfs/Mill_Closures.pdf).
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In February 2012, as a result of ongoing litigation, the FWS
announced a proposal to revise an earlier agency decision and designate
nearly 14 million acres in Oregon, Washington and northern California
as ``critical habitat'' for the Northern Spotted Owl. The proposal
would increase areas designated for Northern Spotted Owl habitat by 62%
over that designated in the FWS' plan issued in 2008.\234\ The entire
boundary of one Oregon county is included within the expanded critical
habitat designation, yet FWS declined the county's request to enter
into a coordination agreement with the Federal Government on managing
the owl.\235\
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\234\ Failed Federal Forest Policies: Endangering Jobs, Forests and
Species: Oversight Field Hearing Before the H. Comm. On Natural
Resources, 112th Cong. (2012) (written testimony of Stephen Mealey,
Boone and Crockett Club, at 25) (Editor's Note (17)).
\235\ Letter from Don Skundrick, Chair of the Jackson County,
Oregon Board of Commissioners, to U.S. Department of the Interior (Aug.
17, 2012) (http://naturalresources.house.gov/uploadedfiles/
jacksoncountyltr.pdf).
---------------------------------------------------------------------------
Percentage of Sites Where Owls Were Found
Source: U.S. Fish & Wildlife Service.
Ironically, not only has the Northern Spotted Owl populations
continued to decline (estimates range the decline as high as 40 percent
since 1990), but the Pacific Northwest has also witnessed a dramatic
decline in overall forest health. In fire-prone forests, unabated fuel
accumulation leads to uncharacteristic wildfires that can ultimately
harm listed species, habitat and water quality.
Catastrophic wildfire has now become the major threat to the
spotted owl, consuming 87% of habitat lost between 1994 and 2004, while
timber harvest attributed to less than \2/10\ of 1 percent. However,
the amount of old growth habitat increased by approximately 2% each
year over that same timeframe, including all losses. In addition, even
the Federal Government acknowledges that the continued declines in
spotted owl populations are not due to forest habitat loss, but rather,
the invasion of a larger, predatory species--the Barred Owl.\236\
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\236\ Revised Recovery Plan for the Northern Spotted Owl, I-8, U.S.
Fish and Wildlife Service, June 28, 2011 (http://www.fws.gov/arcata/es/
birds/NSO/documents/USFWS2011Revised
RecoveryPlanNorthernSpottedOwl.pdf).
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It would seem that after 20 years, efforts to better manage and
reduce fuel buildup in the Northwest's Federal forests would be non-
controversial given the risk to the Northern Spotted Owl's habitat.
However, environmental groups have continued to file lawsuits to block
expansions of ski resorts,\237\ mining activities,\238\ closure of
recreational trails,\239\ and Federal forest management timber thinning
projects and sales, including projects designed to reduce the risk of
catastrophic wildfires that would destroy spotted owl habitat.\240\
According to experts that track Federal ESA litigation, at least 69
timber or salvage sales were challenged in Federal court just between
2008 and 2010.\241\
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\237\ Oregon Natural Resources Council v. Goodman, 505 F.3d 884
(2007) (http://www.leagle.com/decision/20071389505F3d884_11386).
\238\ Karuk Tribe of California v. U.S. Forest Service, 681 F.3d
1006 (2012) (http://scholar.google.com/
scholar_case?case=11771938237862345250&hl=en&as_sdt=6&as_vis=1&
oi=scholarr).
\239\ Letter from Chris Horgan, Executive Director, Stewards of the
Sequoia, to the ESA Working Group (May 9, 2013) (http://
esaworkinggroup.hastings.house.gov/uploadedfiles/
stewardsofthesequoialtr05-09-13.pdf).
\240\ See Gifford Pinchot Task Force v. U.S. Fish & Wildlife
Service, 378 F.3d 1059 (2004)
(http://caselaw.findlaw.com/us-9th-circuit/1105214.html); Earth Island
Institute v. U.S. Forest Service, 442 F.3d 1147 (2006) (post-fire
restoration projects would ``have significant negative effects on
California spotted owl'') (http://www.leagle.com/decision/
20061589442F3d1147_11589.xml/
EARTH%20ISLAND%20INST.%20v.%20U.S.%20FOREST%20
SERVICE); Oregon Natural Resources Council v. Allen, 476 F.3d 1031
(2007) (incidental take permit for 75 timber sales on 64,006 acres in
Rogue River Basin rendered invalid) (http://www.leagle.com/decision/
20071507476F3d1031_11506); Oregon Natural Resources Council v. Brong,
492 F.3d 1120 (2007) (BLM timber salvage logging project after forest
fire violated NEPA and FLPMA) (http://www.leagle.com/decision/
20071612492F3d1120_11601.xml/OREGON%20
NATURAL%20RESOURCES%20COUNCIL%20FUND%20v.%20BRONG); Wildlands v. U.S.
Forest Service, 791 F.Supp.2d 979 (Dist. Ct. Ore. 2011) (https://
www.casetext.com/case/wildlands-v-united-states-forest-serv/).
\241\ The Endangered Species Act: How Litigation is Costing Jobs
and Impeding True Recovery Efforts: Oversight Hearing Before the H.
Comm. On Natural Resources, 112th Cong. (2011) (written testimony
attachment of Karen Budd-Falen, Budd-Falen Law Offices, LLC) (http://
naturalresources.house.gov/UploadedFiles/
Budd_Falen_case_type_chart.pdf).
---------------------------------------------------------------------------
These lawsuits have also resulted in hundreds of thousands of
dollars of attorneys' fees awarded to environmental groups either by
court order or through settlement with the Federal Government. For
example, after several years of public process, the BLM released forest
management plans in 2008 for western Oregon that would allow for
reasonable timber harvests in overgrown areas and areas that are at
high risk of catastrophic wildfire. In 2009, more than a dozen
environmental groups filed four separate lawsuits to block
implementation of the BLM's plans under the ESA and NEPA.\242\ The
Oregon Federal district court, approving the Justice Department's 2009
settlement with the environmental plaintiffs, awarded the plaintiffs
$12,500 in attorneys' fees under the Judgment Fund.
---------------------------------------------------------------------------
\242\ Oregon Wild, et al. v. Shepard, et al., (Cause No. 03:09-cv-
00060-PK, Dist. Ct. Ore 2009) (http://law.justia.com/cases/federal/
district-courts/oregon/ordce/3:2011cv00442/102221/72).
---------------------------------------------------------------------------
The U.S. Forest Service estimates that 60 percent of all National
Forests in Washington, Oregon, and California have been placed off-
limits to harvests as a result of policies relating to the Northern
Spotted Owl.\243\ This is due largely from litigation and threats of
litigation. The trend of paralysis has only intensified under the Obama
Administration. Recently, despite a court upholding a Forest Service
timber sale in the Gifford Pinchot National Forest, the Forest Service
failed to defend the sale when appealed by environmentalists.\244\
Timber companies have been forced to turn to states, private lands and
even outside of the U.S. for timber supply as a result of the Federal
forests' small harvests. Though states are managing much smaller
amounts of forest lands, they are producing significantly more in
receipts than the Federal Government.\245\
---------------------------------------------------------------------------
\243\ Failed Federal Forest Policies: Endangering Jobs, Forests and
Species: Oversight Field Hearing Before the H. Comm. On Natural
Resources, 112th Cong. (2012) (statement of Kent Connaughton, U.S.
Forest Service, at 54) (Editor's Note (17)).
\244\ Failed Federal Forest Policies: Endangering Jobs, Forests and
Species: Oversight Field Hearing Before the H. Comm. On Natural
Resources, 112th Cong. (2012) (statement of Rep. Herrera Beutler,
Member, H. Comm. on Natural Resources, at 55) (Editor's Note (17)).
\245\ Failed Federal Forest Policies: Endangering Jobs, Forests and
Species: Oversight Field Hearing Before the H. Comm. On Natural
Resources,112th Cong. (2012) (statement of Rep. Doc Hastings, Chairman,
H. Comm. on Natural Resources, at 58) (Editor's Note (17)). For
example, Region 6 of the U.S. Forest Service holds in excess of 52
million acres of forest lands, compared to the Washington Department of
Natural Resources' 2 million, and sold 575 million board feet to
Washington's 550 million board feet.
---------------------------------------------------------------------------
Pacific Salmon and Steelhead
Another example of how ESA has become a cottage industry for
attorneys and an unclear goalpost is NMFS' salmon and steelhead
listings. Since 1991, NMFS has listed 28 populations of salmon as
endangered in Washington, Oregon, Idaho and California.\246\ These
listings impact 176,000 square miles--about 61% of the land mass of
Washington and 49% of Oregon's--they also impact significant portions
of California and Idaho. Because of these listings, NMFS conducted over
1,000 major consultations on a host of projects and activities, which
impose significant direct and indirect costs to private entities, and
local and state taxpayers.\247\
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\246\ West Coast Salmon and Steelhead Listings, National Oceanic
and Atmospheric Administration (http://
www.westcoast.fisheries.noaa.gov/protected_species/salmon_steelhead/
salmon_and_steelhead_listings/salmon_and_steelhead_listings.html).
\247\ Public Consultation Tracking System, National Oceanic and
Atmospheric Administration (https://pcts.nmfs.noaa.gov/pcts-web/
homepage.pcts).
---------------------------------------------------------------------------
Land Area Affected by Endangered Species Act Listings of Salmon &
Steelhead
Source: National Oceanic and Atmospheric Administration.
Despite near-record and record numbers of returning salmon in many
areas over the past few years,\248\ and even with NMFS' own recent
report to Congress that the status of \2/3\ of the listed salmon runs
are either ``stable'' or ``increasing,'' \249\ the agency has approved
only 9 out of 28 salmon recovery plans.\250\ NMFS' most recent required
status review of the listings made no changes to downlist or delist any
of the 28 species.\251\
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\248\ AP, Fall Chinook salmon run on Columbia River largest in
decades, The Oregonian, Sep. 14, 2013 (http://www.oregonlive.com/
pacific-northwest-news/index.ssf/2013/09/fall_chinook_
salmon_run_on_col.html); Quinton Smith, Sockeye salmon run sets record
for Columbia River, The Oregonian, Aug. 1, 2010 (http://
www.oregonlive.com/outdoors/index.ssf/2010/08/
sockeye_salmon_run_sets_record.html); Ben Romans, Record Numbers Of
Chinook Salmon Are Running Up The Columbia River, Field and Stream,
Oct. 10, 2013 (http://www.fieldandstream.com/blogs/field-notes/2013/10/
record-numbers-chinook-salmon-are-running-columbia-river); Adam
Spencer, Record Salmon Run Expected, Del Norte Triplicate, Aug. 15,
2012 (http://www.triplicate.com/News/Local-News/Record-salmon-run-
expected).
\249\ ESA Biennial Report to Congress, National Oceanic and
Atmospheric Administration (http://www.nmfs.noaa.gov/pr/laws/esa/
biennial.htm).
\250\ Salmon Recovery Plans and Supporting Documents, National
Oceanic and Atmospheric Administration--West Coast Region (http://
www.westcoast.fisheries.noaa.gov/protected_species/salmon_steelhead/
recovery_planning_and_implementation/recovery_plans_supporting_
documents.html).
\251\ National Oceanic and Atmospheric Administration--West Coast
Region (http://www.nwr.noaa.gov/ESA-Salmon-Listings/5-yr-sums.cfm).
---------------------------------------------------------------------------
Nevertheless, litigious groups have continued filing or threatening
lawsuits and appeals relating to ESA salmon implementation, from
challenging permitted activities that occur in rivers or adjacent lands
to blocking use of salmon hatcheries designed to actually recover them,
to Federal agencies' failure to properly consult on registration of
crop protection products, to removing or breaching dams.
Most prominent of these is litigation, beginning in 1998, governing
the operation of several Federal hydropower dams on the Columbia and
Snake Rivers.\252\ The Columbia River basin is North America's fourth
largest, draining about 250,000 square miles and extending throughout
the Pacific Northwest and into Canada. There are more than 250
reservoirs and about 150 hydroelectric projects in the basin, including
18 mainstem dams on the Columbia and Snake Rivers.\253\
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\252\ NWF, et al. v. NMFS, 254 F. Supp. 2d 1196 (D. Or. 2003)
(http://caselaw.findlaw.com/us-9th-circuit/1225228.html); NWF v. NMFS,
524 F.3d 917 (9th Cir. 2008) (http://caselaw.findlaw.com/us-9th-
circuit/1157444.html); NWF v. NMFS, 41 ELR 20247, No. 01-00640, (D.
Or., 08/02/2011) (http://www.critfc.org/tribal-treaty-fishing-rights/
policy-support/public-documents/).
\253\ Svend Brandt-Erichsen, Close, but No Cigar: More Work Needed
on Salmon and the Columbia Hydro System, Marten Law, Aug. 9, 2011
(http://www.martenlaw.com/newsletter/20110809-salmon-and-columbia-
hydro-system#sthash.5Rp286mm.dpuf).
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These lawsuits and the resulting Federal ESA mitigation actions
have taken a significant toll on Northwest energy output, and have
provided encouragement to certain groups that seek to remove four
Federal dams in the lower Snake River. According to some Northwest
power customers, over an average of 1,000 megawatts (or enough
electricity for one million homes) has been lost due to ESA lawsuits
and mitigation. Over the past decade, Northwest electricity ratepayers
have paid an average of $750 million per year in indirect and direct
costs associated with complying with endangered salmon requirements. In
the coming year, the Bonneville Power Administration's fish and
wildlife program, which is largely driven by ESA compliance, will
account for approximately \1/3\ of Federal wholesale electricity rates
in the FCRPS system.\254\
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\254\ Electricity Prices and Salmon: Finding a Balance: Oversight
Field Hearing Before the H. Subcomm. on Water and Power of the H. Comm.
On Resources, 109th Cong. (2006) (written testimony of Stephen Wright,
Administrator, Bonneville Power Administration, at 47) (http://
www.gpo.gov/fdsys/pkg/CHRG-109hhrg28557/pdf/CHRG-109hhrg28557.pdf).
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In addition, to satisfy ESA requirements for salmon, non-Federal
utilities with dams have paid millions over several years to obtain and
implement habitat conservation plans and long-time certainty necessary
to license and operate their dams.\255\ Meanwhile, the environmental
plaintiffs have been awarded close to $2 million in taxpayer and
ratepayer funding for their legal fees.\256\
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\255\ Chelan PUD Says HCP Working At 10-Year Check-In, NW
Fishletter, Mar. 7, 2013 (http://www.newsdata.com/fishletter/314/
7story.html).
\256\ Federal Hydro System Biological Opinion Ruling and
Implementation, Northwest RiverPartners, Mar. 2012 (http://
nwriverpartners.org/images/stories/BiOp_ruling_and_
implementation-3-2012.pdf).
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Aside from the litigation involving the Northwest hydropower
system, the lack of clarity of the ESA and how it relates to the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in the
regulation of these products has posed a significant threat to
economically vital industries such as agriculture in the Pacific
Northwest, California and the rest of the nation. It also has been the
subject of continual lawsuits, including one filed by the CBD seeking
to eliminate 380 agricultural, forestry, and mosquito-controlling
pesticides and crop protection products used in 49 states on more than
112 million acres.\257\
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\257\ Press Release, Center for Biological Diversity, Landmark
Lawsuit Re-filed Against EPA to Protect Dozens of Endangered Species
From Pesticides (June 2, 2013) (http://www.biologicaldiversity.org/
news/press_releases/2013/pesticides-06-06-2013.html).
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In 2008, NMFS concluded in biological opinions that all 28
populations of salmon would be jeopardized by continued use of these
products, long registered and labeled by the EPA. NMFS' requirements
included nearly a \1/4\ mile buffer around water bodies that would
affect as much as 60 percent of agricultural lands in Washington alone,
and according to an estimate by the Department of Agriculture, could
result in lost revenues of over $580 million.\258\ These measures were
strongly questioned by state agriculture agencies who were concerned
that NMFS failed to utilize current state data and information and to
allow transparency and review and revise to ensure the best available
science.\259\ The former director of the EPA office with authority and
responsibility for scientific review of hundreds of pesticides found
over 14 significant flaws in NMFS' biological opinions.\260\
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\258\ At Risk: American Jobs, Agriculture, Health and Species: The
Costs of Federal Regulatory Dysfunction: Joint Oversight Field Hearing
Before the H. Comm. On Natural Resources and H. Comm. On Agriculture,
112th Cong. (2011) (written testimony of Joseph Glauber, U.S.
Department of Agriculture, at 15) (Editor's Note (28)).
\259\ At Risk: American Jobs, Agriculture, Health and Species: The
Costs of Federal Regulatory Dysfunction: Joint Oversight Field Hearing
Before the H. Comm. On Natural Resources and H. Comm. On Agriculture,
112th Cong. (2011) (statement of Dan Newhouse, Washington State
Department of Agriculture, at 146) (Editor's Note (28)).
\260\ At Risk: American Jobs, Agriculture, Health and Species: The
Costs of Federal Regulatory Dysfunction: Joint Oversight Field Hearing
Before the H. Comm. On Natural Resources and H. Comm. On Agriculture,
112th Cong. (2011) (written testimony of Dr. Debra Edwards, Exponent
Engineer and Scientific Consulting, at 118-120). (Editor's Note (28))
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Last year, a Federal district court ruled that data and conclusions
used in NMFS pesticide/ESA biological opinion were ``arbitrary and
capricious,'' failed to rely on logical or rational data, and lacked
analyses of the economic or technological feasibility of its proposed
measures.\261\ In 2013, the NAS issued a report that recommended
changes to how NMFS' and the FWS evaluate risks to salmon species in
its pesticide consultation process.\262\ However, the report failed to
address several important questions relating to the lack of peer review
of the biological opinions themselves, the use of available scientific
data, and analyses of the economic and technological feasibility of
NMFS' biological opinions, and a bipartisan group of 30 members of
Congress wrote to House appropriators in 2011 supporting language to
compel the National Academy of Sciences to study these specific issues.
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\261\ Dow AgroSciences LLC v. National Marine Fisheries Service,
4th Cir., No. 11-2337, (Feb. 2013) (http://www.leagle.com/decision/
In%20FCO%2020130221091).
\262\ National Research Council. Assessing Risks to Endangered and
Threatened Species from Pesticides. Washington, D.C.: The National
Academies Press, 2013.
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While an improvement over the previous modeling that was used,
there is still no clarity within the law on the nexus between Section 7
of ESA and FIFRA in regulating these products. In addition, the Federal
agencies refused to revisit the biological opinions that have already
been released and are still threatening implementation of the measures
questioned in the first place.
Another source of litigation has been the use of salmon hatcheries
to recover ESA-listed salmon populations. Though tribal hatchery
managers have successfully utilized hatchery supplementation to enhance
salmon and steelhead recovery for several years, NOAA and other
environmental activists continue to oppose any efforts to utilize
hatcheries as a means to count and seek delisting of ESA-listed salmon
and steelhead. The Snake River fall Chinook run, for example, has
rebounded to record levels with the hatchery programs, expanding from
500 adult fish in 1975 to more than 41,000 in 2010.\263\
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\263\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (written testimony of N. Kathryn Brigham, Columbia
River Inter-Tribal Fish Commission, at 17) (Editor's Note (4)).
---------------------------------------------------------------------------
According to tribal officials, the only way hatchery and naturally-
spawning salmon can be distinguished is through a clip on the adipose
fin, and the progeny of hatchery fish are virtually indistinguishable
from naturally spawning fish, leading some to question why hatchery
fish are not counted for purposes of ESA recovery goals.\264\ Though a
court ordered the NMFS in 2001 that it must consider hatchery salmon in
populations proposed for ESA listing, the agency issued a revised
policy that emphasized the ``negative impacts'' of hatchery fish on
naturally spawning fish, but ignored the positive benefits that
hatchery fish clearly are having on recovering salmon in the
Northwest.\265\
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\264\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (statement of N. Kathryn Brigham, Columbia River
Inter-Tribal Fish Commission, at 66) (Editor's Note (4)).
\265\ Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009)
(https://www.casetext.com/case/trout-unlimited-v-lohn); 70 Fed. Reg.
37204 (http://www.nmfs.noaa.gov/pr/pdfs/fr/fr70-37204.pdf).
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The Gray Wolf
The gray wolf was one of the first species listed as ``endangered''
under ESA, and was originally listed by FWS in the entire lower 48
states.\266\ Since then, the status of the wolf has shifted from:
conservation in the 1970's and 1980's; reintroduction of ``experimental
populations'' to three parts of the U.S. in the early 1990's; to
breaking the wolf into separate populations, reclassifying and
delisting wolves where they have surged in recent years.\267\ In
general, the gray wolf's recovery has succeeded and the species is
currently in the classification of ``least concern'' globally for risk
of extinction, according to a prominent international scientific group
of experts.\268\
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\266\ 39 Fed. Reg. 3, 1171 (1974) (http://www.fws.gov/mountain-
prairie/species/mammals/wolf/FR01041974.pdf).
\267\ Gray Wolf Species Profile, U.S. Fish and Wildlife Service
(http://ecos.fws.gov/speciesProfile/profile/
speciesProfile.action?spcode=A00D).
\268\ Canis lupus, The IUCN Red List of Threatened Species (http://
www.iucnredlist.org/details/3746/0).
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Source: U.S. Fish and Wildlife Service.
Nonetheless, at every juncture that the FWS has sought to change
the wolf's ESA status, environmental groups have filed lawsuits
opposing state management and seeking to enforce Federal ESA listings.
Take, for example, the 1996 reintroduction of wolves as an experimental
population into the northern Rocky Mountain Region. A total of 31
wolves were introduced with the recovery goal of 300 wolves and 30
breeding pairs between Idaho, Montana and Wyoming.\269\ Wolves in the
northern Rocky Mountains increased rapidly and dispersed well beyond
the original recovery area, meeting Federal delisting criteria in 2002.
Yet continual lawsuits and threats of lawsuits delayed FWS action to
delist the wolf until 2012.\270\
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\269\ Defining Species Conservation Success: Tribal, State and
Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (written testimony of Steve Ferrell, State of
Wyoming, at 35) (Editor's Note: (4)).
\270\ Wolves in Wyoming, Wyoming Game and Fish Department (http://
gf.state.wy.us/web2011/wildlife-1000380.aspx).
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Figure 6a. Northern Rocky Mountain Wolf Population Trends by Recovery
Area, 1982-2012
(Excludes Oregon and Washington)
Source: U.S. Fish and Wildlife Service.
In the meantime, as a result of inconsistent Federal court rulings
of the wolf's ESA status, Congress included a provision in the enacted
Fiscal Year 2011 Continuing Resolution to delist the wolf in Montana,
Idaho, and parts of eastern Washington, eastern Oregon and north-
central Utah.\271\ In December 2011, the FWS delisted wolves in the
Western Great Lakes area. On September 30, 2012, wolves in Wyoming were
delisted by the FWS, but only after twelve consecutive years of
exceeding recovery goals. The Wyoming delisting process included
thorough review by the FWS and was peer reviewed two times by
independent wolf scientists.\272\
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\271\ P.L. 112-10, Sect. 1713 (http://www.congress.gov/cgi-lis/
bdquery/R?d112:FLD002:
@1(112+10)).
\272\ Gray Wolves in the Northern Rocky Mountains, U.S. Fish and
Wildlife Service (http://www.fws.gov/mountain-prairie/species/mammals/
wolf/FR01041974.pdf).
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Similar to FWS-approved plans for the States of Montana and Idaho,
Wyoming's post-delisting management framework seeks to maintain at
least 150 wolves and fifteen breeding pairs within the state's borders.
The Service expects the Greater Yellowstone Area wolf population to
maintain a long-term average of around 300 wolves, while the entire
Northern Rocky Mountains Distinct Population Segment is expected to
achieve a long-term average of around 1,000 wolves.\273\
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\273\ News Release, U.S. Fish and Wildlife Service, Service
Declares Wyoming Gray Wolf Recovered Under the Endangered Species Act
and Returns Management Authority to the State (Aug. 31, 2012) (http://
www.fws.gov/mountain-prairie/pressrel/2012/08312012_Wyoming_Wolf.html).
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The most recent official minimum wolf population estimate shows
that the northern Rocky Mountain wolf population contains more than
1,774 adult wolves and more than 109 breeding pairs. Most of the
suitable habitat across this region is now occupied and likely at, or
above, long-term carrying capacity. This population has exceeded
recovery goals for twelve consecutive years. At the end of 2011, an
estimated 328 wolves were in Wyoming, including 48 packs and 27
breeding pairs.\274\
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\274\ Wyoming Wolf FAQs, Wyoming Game and Fish Department (http://
gf.state.wy.us/web2011/news-1001287.aspx).
---------------------------------------------------------------------------
Shortly after the Wyoming delisting was final, four environmental
groups (the Defenders of Wildlife, the CBD, the Sierra Club and the
Natural Resources Defense Council) filed suit against FWS seeking to
have the delisting reversed, claiming Wyoming's wolf management plan
``is too aggressive and does not protect wolves in 85 percent of the
state.'' \275\
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\275\ Press Release, Defenders of Wildlife, Suit Filed Against
Wyoming's Kill-at-Will Wolf Policy (Nov. 13, 2012) (http://
www.defenders.org/press-release/suit-filed-against-wyoming's-kill-at-
will-wolf-policy).
---------------------------------------------------------------------------
FWS' overall review of gray wolf populations in 2012 found few gray
wolves outside of the delisted areas, leading to a proposal in 2013 to
delist the species nationwide. This determination has also become the
target of litigation. Recently, six environmental groups (the Defenders
of Wildlife, CBD, Earthjustice, Endangered Species Coalition, Natural
Resources Defense Council and the Sierra Club) sent a letter to
Interior Secretary Sally Jewell asking her to reconsider its proposal
to delist the wolf nationwide.\276\ Moreover, while the FWS has
proposed delisting the wolf nationwide, they have refused to delist the
Mexican wolf, which the agency considers to be a still-endangered
subspecies.
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\276\ Letter from Kieran Suckling, Executive Director, Center for
Biological Diversity, to Sally Jewell, Secretary, The Department of the
Interior (May 9, 2013) (http://www.biologicaldiversity.org/campaigns/
gray_wolves/pdfs/CEO-Letter-Opposing-National-Wolf-Delisting-to-
Secretary-Jewel-5-9-13.pdf).
---------------------------------------------------------------------------
The gray wolf saga under the ESA demonstrates the tremendous lack
of certainty on what is necessary to actually delist species once they
are recovered and no longer threatened with extinction. In the twelve
years since gray wolf recovery, states and private property owners
dealt with serious impacts of the wolf's unfettered expansion beyond
the recovery area, including harm to livestock and populations of big
game animals. That delisting has been held hostage to litigation and
forced Congress to legislate narrow delistings. This has resulted in a
disjointed gray wolf policy where the entire species has recovered, yet
the only difference between a listed gray wolf or a delisted gray wolf
is separation by highways or imaginary state or international
boundaries (See Map above). This is particularly true as the FWS in its
most recent management rule notes there is no distinctive genetic or
behavioral difference between wolves found in Canada and the western
delisted regions of the U.S.\277\
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\277\ 50 CFR Part 17 (http://www.regulations.gov/
#!documentDetail;D=FWS-HQ-ES-2013-0073-0001).
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374 Mussel and Aquatic Species in the Midwest and Gulf Coast
The 2011 mega-settlements have led to other potential listings and
habitat designations of literally hundreds of aquatic species in
several Midwest and Gulf states, such as the Rabbitsfoot Mussel (listed
as threatened), and the Neosho Mucket, (listed as endangered).\278\ In
an unprecedented move the FWS in September 2011 announced that it was
reviewing the status of 374 aquatic species that in its view ``may
warrant'' listing under ESA. This followed petitions and threats of
lawsuits from CBD, which launched a new campaign to address the
``southeast freshwater extinction crisis.'' \279\ The proposal drew an
outcry because of the size and scope of the proposal, that it could
undermine public involvement and result in a legally deficient
administrative record, and would require the FWS to review all 374
listing determinations in twelve months.\280\
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\278\ Press Release, Center for Biological Diversity, Two Midwest
and Southeast Mussels for Endangered Species Act Protection With 2,000
Protected River Miles (Oct. 15, 2012) (http://
www.biologicaldiversity.org/news/press_releases/2012/2-mussels-5-fish-
10-15-2012.html).
\279\ News Release, U.S. Fish and Wildlife Service, U.S. Fish and
Wildlife Service Finds 374 Aquatic-dependent Species May Warrant
Endangered Species Act Protection (Sep. 26, 2011) (http://www.fws.gov/
southeast/news/2011/11-063.html); and The Southeast Freshwater
Extinction Crisis, Center for Biological Diversity (http://
www.biologicaldiversity.org/programs/biodiversity/1000_species/
the_southeast_freshwater_extinction_crisis/).
\280\ Letter from Leslie James, Chair, NESARC, to Dan Ashe,
Director, U.S. Fish and Wildlife Service (Nov. 8, 2011) (http://
nesarc.org/nesarc-files-extension-request-with-fws-for-review-of-
southeastern-species).
Rabbitsfoot Mussel Range Map
Source: U.S. Fish and Wildlife Service.
The flood of hundreds of listing petitions at one time has
undermined FWS' ability to conduct a rational science-driven process
for prioritizing listing decisions. FWS itself has acknowledged that
due to the large number of species involved, stating it is ``only able
to conduct cursory reviews of the information in our files and the
literature cited in the petition. For many of the narrowly endemic
species included in the 374 species, we had no additional information
in our files and relied solely on the information provided in the
petition and provided through NatureServe.'' \281\
---------------------------------------------------------------------------
\281\ 76 Fed. Reg. 187, 59836-59862 (http://www.gpo.gov/fdsys/pkg/
FR-2011-09-27/html/2011-24633.htm).
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As part of its settlement deadlines, in October 2012, FWS proposed
2,138 river miles as critical habitat for the mussels in twelve Midwest
and Southeast states,\282\ including 42% of Arkansas' geographical
area, spanning 31 counties and 769 river miles (see Map). The FWS also
issued an economic impact analysis of its critical habitat
designation.\283\
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\282\ Press Release, Center for Biological Diversity, Two Midwest
and Southeast Mussels for Endangered Species Act Protection With 2,000
Protected River Miles (Oct. 15, 2012) (http://
www.biologicaldiversity.org/news/press_releases/2012/2-mussels-5-fish-
10-15-2012.html).
\283\ News Release, U.S. Fish and Wildlife Service, U.S. Fish and
Wildlife Service Lists Neosho Mucket as Endangered and Rabbitsfoot as
Threatened (Sep. 16, 2013) (http://www.fws.gov/southeast/news/2013/
061.html).
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After originally allowing just 30 days for the public to comment on
these sweeping regulations, the FWS was forced to re-open the comment
period for another 60 days.\284\ The Arkansas Governor, Attorney
General and Arkansas Legislature, local counties and private landowners
raised concerns that in addition to under-valuing the true economic
impact of the designation, the proposed critical habitat would have
widespread impacts to rural portions of Arkansas, potentially impacting
farmers, ranchers, timber producers, oil and gas producers, utility
providers, county and municipal governments, school districts,
irrigation districts and small businesses. Every Member of the Arkansas
Congressional Delegation released statements condemning the proposed
critical habitat,\285\ and a letter that called into question the lack
of transparency and science, the closed-door nature of the settlements
that resulted in these actions, the flawed process, and called on the
FWS to reconsider the critical habitat designations, based upon a
flawed process.\286\
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\284\ News Release, U.S. Fish and Wildlife Service, Service Re-
opens Review of Draft Economic Analysis for the Proposed Critical
Habitat Designation for Two Freshwater Mussels (Aug. 26, 2013) (http://
www.fws.gov/southeast/news/2013/051.html).
\285\ Press Release, Association of Arkansas Counties, Entire
Arkansas Congressional delegation members release statements regarding
U.S. Fish and Wildlife Services proposed critical habitat designations
in Arkansas (Nov. 8 2013) (http://www.arcounties.org/news/55/entire-
ark-congressional-delegation-releases-statement-on-esa).
\286\ Letter from Arkansas Congressional Delegation, to Dan Ashe,
Director, U.S. Fish and Wildlife Service (Jan. 9, 2014) (http://
www.pryor.senate.gov/public/_cache/files/e17413cf-6ff8-4f91-a4a2-
b55eb3a5ce5e/ESA%20Critical%20Habitat%20Designation%20Letter.pdf).
---------------------------------------------------------------------------
These designations resulted in the creation of a coalition,
spearheaded by the Association of Arkansas Counties, that proposed
decreasing critical habitat designations by approximately 38% to 477
miles of river. The FWS dismissed concerns as exaggerated, and that
``for most landowners, the designation of critical habitat will have no
impact,'' and that the designations ``will not prohibit a farmer from
allowing cattle to cool down in a river, or from driving a vehicle
through a stream on their property.'' \287\ However, FWS acknowledged
that critical habitat could impact property in some cases. Without
further action, FWS will finalize the critical habitat designations for
the Rabbitsfoot Mussel and Neosho Mucket by March 2014.
---------------------------------------------------------------------------
\287\ AP, Arkansas' congressional delegation opposes mussel plan,
Arkansas Online, Jan. 10, 2014 (http://www.arkansasonline.com/news/
2014/jan/10/arkansas-congressional-delegation-opposes-mussel-p/).
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Recommendations for Improving ESA and Removing Impediments to Recovery
The main goal of the ESA is to recover species. This is a laudable
and worthy goal. However, as has been demonstrated in this report, the
ESA, Federal implementation of it, and seemingly never-ending
litigation are creating increasing impediments towards reaching that
goal. Only by removing these impediments can the ESA be improved for
the benefit of saving species.
After more than 40 years, sensible, targeted reforms would not only
improve the eroding credibility of the Act, but would ensure it is
implemented more effectively for species and people. The Working Group
heard several common themes on areas for improvement that fall into
four categories: (1) greater transparency and prioritization of ESA
implementation to ensure more focus on species recovery and delisting;
(2) ESA litigation and settlement reforms; (3) empowering states,
local, tribes and private landowners on ESA; and (4) improving
transparency and accountability of ESA scientific data.
1. Ensure Greater Transparency and Prioritization of ESA Decisions:
More Focus on Species Recovery and Delisting than Listing
The Working Group received many comments that raised serious
concerns about Federal implementation of the ESA, the lack of
prioritization of resources, and a seeming-fixation with listing
species versus ensuring species recovery and compatibility to other
vital economic and private property priorities. Some areas of
improvement could include:
Ensure Prioritization of Species Protection. Rather than
listing hundreds or thousands of new subspecies of plants,
animals and fish, the focus and priority of the Federal
Government should be protecting those species most imperiled or
found to be at the brink of extinction.
Require Numerical Goals Needed for Species Recovery_
Upfront. Federal agencies that implement ESA should not list
species unless and until they are able to identify actual
recovery and numerical goals for healthy species populations
upfront--before, or at the time of any proposed rule involving
listing a species. Recovery plans should be drafted and
completed and approved before listing or critical habitat is
designated, not as an afterthought, years later, or not at all.
Require ESA Listing and delisting Petitions to be based
on Actual, Accessible Data. Rather than basing decisions on
vague trends showing decline or improvement or ``professional
opinions,'' ESA listing/delisting petitions should not be
accepted by Federal ESA implementing agencies unless they are
based upon actual data relating to the species' condition. Data
used for listing and delisting decisions should be made
publicly available, especially if the data and related studies
are being financed by the American taxpayer.
Require delisting and Downlisting as Data Supports.
Instead of having to guess when (or even whether) the Federal
Government will make decisions to remove species from the ESA
list that are healthy or have met required recovery goals,
Federal agencies should be required to issue actual rules to
delist and remove or downlist species from the ESA list where
supported by data.
Authorize Flexibility of ESA Statutory Deadlines.
Federal agencies should have discretion to extend 12 month or
90 day deadlines relating to species listing or critical
habitat determinations, without fear of spurious litigation.
Rather than force Federal agencies to accept every petition
with equal weight no matter how lacking the science and data,
agencies should be allowed to incorporate the best and most
current data to allow for better prioritization. The ESA must
keep its eye on those species at the brink of extinction or
most imperiled. Agencies' Listing Priority Guidance (48 Fed.
Reg. 43098) should supersede any conflicting 12 month or 90 day
deadline set by rule, settlement or other action.
Codify Policy for Evaluating Conservation Efforts
(PECE). To ensure ongoing species conservation efforts are
given proper authority and consideration under the law, the
Policy for Evaluating Conservation Efforts (PECE) (found at 68
Fed. Reg. 15100) should be codified.
Clarify and Define ESA Terms to Ensure Consistency.
Several terms in the law have become magnets for
misinterpretation, conflicting interpretations, or even
litigation, and should be clarified, including, for example:
``foreseeable future''; ``significant portion of the range,''
``jeopardy'' to a species, the technological and economic
feasibility of ``reasonable and prudent alternatives/
measures,'' and ``maximum extent practicable'' relating to
mitigation.
2. ESA Litigation and Settlement Reform
The Working Group received many comments that ESA decisions need to
be made less susceptible to litigation, which has served to be a
significant hurdle in prioritizing the recovery of truly endangered
species and created rush to judgments that lack transparency. In times
of tight fiscal budgets and escalating national debt, the first
priority of the Federal Government's endangered species protection and
recovery programs should be on species--not lawyers or prepping
biologists for court.
Moreover, the Federal Government should not be rewarding those that
have made a business out of suing the Federal Government on ESA to
receive taxpayer-funded Federal grants or funding through other
programs. Here are three areas the Working Group recommends ESA should
be addressed:
Transparency and Flexibility of Closed-Door Settlements/
Deadlines. ESA listing and habitat designation deadlines
(agreed to by the Department of the Interior in its 2011
``mega-settlements'' with two litigious groups, the WildEarth
Guardians and the Center for Biological Diversity), should not
supersede the Federal Government's ESA responsibilities to
American private property owners, states, tribes and local
governments, or further incentivize these and other groups to
litigate and settle. Federal agencies should be required to
disclose all details of consent decrees to Congress and an
appropriate NEPA process should be applied for settlements to
ensure public input in ESA decisions, and to ensure they
include best scientific data.
ESA Litigation Transparency and Reform. Litigious groups
and plaintiffs should be discouraged from filing procedural
challenges against agencies simply because they do not agree
with the agency's decisions, (such as delisting determinations,
findings of species listing not warranted). Litigants should be
required to pay their own way to curb repeated litigation and
foster court cases only on substantive matters. To discourage
forum shopping by frequent ESA-litigation-plaintiffs, ESA
lawsuits should not be permitted in Federal courts other than
in a state a species is primarily located.
Federal agencies, (including the Departments of Justice, Interior,
Forest Service, and NOAA), should be required to maintain and make
publicly available and report to Congress on the complete and accurate
records of Federal funds spent annually for ESA-related litigation,
payment of attorneys' fees, settlements, and consent decrees for the
Judgment Fund and the Equal Access to Justice Act.
Curbing Excessive Taxpayer Funding of ESA Attorneys'
Fees. Hourly fees paid by the Federal Government to litigious
attorneys for ESA litigation should be capped like other
Federal statutes to prevent lucrative payment of attorneys'
fees. Courts should no longer view ``settling'' parties as
``prevailing'' or entitled to taxpayer-funded attorneys' fees.
Parties that engage in settlement negotiations and settlements
should bear their own costs. In addition, non-governmental
organizations or individuals that file ESA-related lawsuits
against the Federal Government should be barred from receiving
Federal taxpayer-funded grants. Since money is fungible,
litigation should not be subsidized by taxpayers.
3. Empower States, Tribes, Local Governments and Private Landowners on
ESA Decisions Affecting Them and Their Property
The Working Group has found both the capability and willingness of
states, tribes, localities and private landowners to conserve and
recover species. Multiple parties have identified impediments and
deficiencies in Federal ESA implementation, including misguided
priorities and fear of litigation, which undermines species protection
and conservation while simultaneously ensuring multiple use, protection
of economies, private property and water rights. In this regard,
several areas are recommended:
Strengthen States' Authority and Role in ESA Policy.
Section 6(a) should be strengthened to ensure that states'
roles in ESA policy provisions have meaning and are
enforceable. Agreements to delegate authority between the
Federal Government and states for management of activities
involving listed species should not be subject to excessive
litigation. States that have approved species conservation
plans and agreements should be given presumption by Federal
agencies that ESA listing is not warranted.
Require State, Tribe, and Local Approval of ESA
Settlements. In addition, states (as well as tribes and other
local governments) should be afforded legal standing and be
consulted with on Federal ESA-related court settlements
impacting their jurisdictional borders. The ESA should provide
local, tribal and state governments a voice in closed-door
settlements where such settlements impact their land.
Require Involvement of State, Tribe, Local Data and Peer
Reviews. States, tribes, local governments, private landowners
and other entities, in many cases, have more current and
accurate data, which should be given the highest consideration
and presumption in ESA decisions. No ESA petition or listing
determination should be approved without incorporating and
analyzing data provided by states, tribes, local governments
and private landowners. In addition, Federal ESA agencies
should be directed to include states, tribes and local
governments in the design, selection and scope of peer reviews
of major ESA-related decisions.
Strengthen and Simplify HCPs and CCAAs and Exempt them
from Critical Habitat. To encourage and give validity to
voluntary Habitat Conservation Plans or Candidate Conservation
Agreements with Assurances, these agreements should be exempt
from critical habitat designations. In addition, the process to
obtain such HCPs and CCAAs, which now can be cumbersome,
expensive and out of reach, should be simplified and codified
to incentivize individuals undertaking voluntary conservation
efforts.
Authorize Reconsideration of Listing/Critical Habitat
Decisions that Significantly Harm Private Landowners. Property
owners have no recourse in certain cases where their property
is significantly devalued or subject to regulatory taking. The
Secretaries of the Interior and Commerce should be authorized
in certain circumstances to reconsider and reevaluate, without
judicial review, any critical habitat or listing decision where
evidence shows significant economic harm or other justification
warrants it.
Require Real Economic Analyses Up Front for ESA. The
Obama Administration's finalization last year of a rule
changing the way ESA economic impact analyses are conducted to
only include ``baseline'' costs should be replaced with a rule
that codifies a 10th Cir. Court of Appeals ruling requiring
agencies to analyze all economic costs of an ESA listing.
Moreover, critical habitat economic analyses should be required
at the time of any proposed listing, making it publicly
available.
Authorize Private Funding of ESA Permit Processing. To
improve processing of Federal ESA consultations, non-Federal
contractors should be authorized to privately funded by an ESA
permit applicant to prepare biological opinions, similar to
documents now authorized under NEPA by third-party contractors.
In addition, ``action agencies'' should be permitted to prepare
a biological opinion subject to review and approval by FWS and
NMFS.
4. Transparency and Accountability of ESA Data and Science
Finally, the Working Group heard from a number of experts and
witnesses on the need to ensure that ESA science and data are
transparent, publicly available, and not driven by individuals with
conflicts of interests. The Working Group recommends improvements could
be made to this area as follows:
Modernize and Clarify ``Best Available Scientific and
Commercial Data''. Data, including DNA, should be preferred to
support ESA determinations over unpublished reports or
professional opinions. ESA-related data should be required to
meet Data Quality Act guidelines. In addition, Federal agencies
should be required to justify why data relied upon for ESA
decision is the ``best available'' and why such data is deemed
``accurate'' and ``reliable.''
Transparency and Accessibility of Data in Federal ESA
Decisions. Data used by Federal agencies for ESA decisions
should be made publicly available and, when possible,
reviewable through online access on the Internet. This includes
data or information that may be contrary to Federal agencies'
own data. A public repository of data should be required for
all ESA decisions.
Reform, Transparency and Accountability of ESA-related
Peer Reviews. To ensure accountability, ESA-related peer
reviews that do not comply with the Data Quality Act should be
deemed ``arbitrary and capricious,'' and all ESA-related peer
reviews should be made publicly available and available online
on the Internet. In addition, peer reviewers selected should
not have a financial or other conflict of interest. FWS and
NMFS should be required to consult with the National Academy of
Sciences and affected states, tribes and local governments, to
develop list of qualified peer reviewers on each controversial
ESA action.
Editor's Notes
In order to maximize the printed space the hyperlinks for the
following publications will be listed here:
(1) Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on
Endangered Species and People: Oversight Hearing Before the H.
Comm. On Natural Resources, 113th Cong. (2013) (http://
www.gpo.gov/fdsys/pkg/CHRG-113hhrg82446/pdf/CHRG-
113hhrg82446.pdf)
(2) The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Oversight Hearing Before the H.
Comm. On Natural Resources, 112th Cong. (2011) (http://
www.gpo.gov/fdsys/pkg/CHRG-112hhrg71642/pdf/CHRG-
112hhrg71642.pdf).
(3) Department of Interior Spending and the President's Fiscal Year
2013 Budget Proposal: Oversight Hearing Before H. Comm. On
Natural Resources. 112th Cong. (2011) (http://www.gpo.gov/
fdsys/pkg/CHRG-112hhrg72938/pdf/CHRG-112hhrg72938.pdf).
(4) Defining Species Conservation Success: Tribal, State and Local
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle
Practices: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (http://www.gpo.gov/fdsys/pkg/
CHRG-113hhrg81318/pdf/CHRG-113hhrg81318.pdf).
(5) ESA Decisions by Closed-Door Settlement: Short-Changing
Science, Transparency, Private Property, and State & Local
Economies: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (written testimony of Brock
Evans, Endangered Species Coalition) (http://
naturalresources.house.gov/uploadedfiles/evanstestimony12-12-
13.pdf).
(6) ESA Decisions by Closed-Door Settlement: Short-Changing
Science, Transparency, Private Property, and State & Local
Economies: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (written testimony of Dr. Joe
Roman, University of Vermont) (http://
naturalresources.house.gov/uploadedfiles/romantestimony12-12-
13.pdf)
(7) Taxpayer-Funded Litigation: Benefitting Lawyers and Harming
Species, Jobs and Schools: Oversight Hearing Before the H.
Comm. On Natural Resources, 112th Cong. (2012) (http://
www.gpo.gov/fdsys/pkg/CHRG-112hhrg74665/pdf/CHRG-
112hhrg74665.pdf).
(8) The Impact of Catastrophic Forest Fires and Litigation on
People and Endangered Species: Time for Rational Management of
our Nation's Forests: Oversight Hearing Before the H. Comm. On
Natural Resources, 112th Cong. (2012) (http://www.gpo.gov/
fdsys/pkg/CHRG-112hhrg75279/pdf/CHRG-112hhrg75279.pdf).
(9) Endangered Species Act Congressional Working Group Forum: Forum
Before the Endangered Species Act Working Group, 113th Cong.
(2013) (written testimony of Senator Tom Casperson, Michigan
State Senate) (http://hastings.house.gov/uploadedfiles/
capersontestimony10-10-2013.pdf).
(10) Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th
Cong. (2013) (written testimony of Issa A. Hamud, City of
Logan, Utah) (http://hastings.house.gov/uploadedfiles/
hamudtestimony10-10-2013.pdf).
(11) Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th
Cong. (2013) (written testimony of Kevin Kolevar, Conservation
Leadership Conference) (http://hastings.house.gov/
uploadedfiles/kolevartestimony10-10-2013.pdf).
(12) ESA Decisions by Closed-Door Settlement: Short-Changing
Science, Transparency, Private Property, and State & Local
Economies: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (written testimony of Carl
Albrecht, Garkane Energy, Inc.) (http://
naturalresources.house.gov/uploadedfiles/albrechttestimony12-
12-13.pdf).
(13) Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on
Endangered Species and People: Oversight Hearing Before the H.
Comm. On Natural Resources, 113th Cong. (2013) (written
testimony of Damien Schiff, Pacific Legal Foundation) (http://
naturalresources.house.gov/uploadedfiles/schifftestimony08-02-
13.pdf).
(14) Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th
Cong. (2013) (written testimony of Doug Vincent-Lang, Alaska
Department of Fish and Game)
(http://hastings.house.gov/uploadedfiles/vincent-langtestimony-
10-10-13.pdf).
(15) Spending for the National Oceanic and Atmospheric
Administration, the Council on Environmental Quality, the
Office of Insular Affairs, the U.S. Fish and Wildlife Service
and the President's Fiscal Year 2014 Budget Request for these
Agencies: Oversight Hearing Before the H. Subcomm. on
Fisheries, Wildlife, Oceans and Insular Affairs of the H. Comm.
on Natural Resources, 113th Cong. (2013) (question for the
record response of Dan Ashe, U.S. Fish and Wildlife Service)
(http://naturalresources.house.gov/uploadedfiles/house_nr-
sc_fy_2014_budget_qfrs_final.pdf).
(16) Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th
Cong. (2013) (written testimony of Matthew Hite, U.S. Chamber
of Commerce) (http://hastings.house.gov/uploadedfiles/
hitetestimony10-10-2013.pdf).
(17) Failed Federal Forest Policies: Endangering Jobs, Forests and
Species: Oversight Field Hearing Before the H. Comm. On Natural
Resources, 112th Cong. (2012) (http://www.gpo.gov/fdsys/pkg/
CHRG-112hhrg74531/pdf/CHRG-112hhrg74531.pdf).
(18) Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on
Endangered Species and People: Oversight Hearing Before the H.
Comm. On Natural Resources, 113th Cong. (2013) (written
testimony of Dr. Rob Roy Ramey) (http://
naturalresources.house.gov/uploadedfiles/rameytestimony08-02-
13.pdf).
(19) Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on
Endangered Species and People: Oversight Hearing Before the H.
Comm. On Natural Resources, 113th Cong. (2013) (statement of
Dan Ashe, U.S. Fish and Wildlife Service) (http://
naturalresources.house.gov/uploadedfiles/ashetestimony08-02-
13.pdf).
(20) Transparency and Sound Science Gone Extinct?: The Impacts of
the Obama Administration's Closed-Door Settlements on
Endangered Species and People: Oversight Hearing Before the H.
Comm. On Natural Resources, 113th Cong. (2013) (statement of
Kent McMullen, Franklin County Natural Resources Advisory
Committee) (http://naturalresources.house.gov/uploadedfiles/
mcmullentestimony08-02-13.pdf).
(21) The Endangered Species Act: Reviewing the Nexus of Science and
Policy: Oversight Hearing Before the H. S. Comm. On
Investigations and Oversight, 112th Cong. (2011) (written
testimony of Dr. Neal Wilkins, Texas A&M Institute of Renewable
Natural Resources) (http://science.house.gov/sites/
republicans.science.house.gov/files/documents/hearings/
101311_Wilkins.pdf).
(22) The Endangered Species Act: How Litigation is Costing Jobs and
Impeding True Recovery Efforts: Before the H. Comm. on Natural
Resources, 112th Cong., Dec. 6, 2011 (written testimony of
Karen Budd-Falen, Budd-Falen Law Offices, LLC.) (http://
naturalresources.house.gov/uploadedfiles/buddfalentestimony
12.06.11.pdf).
(23) Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th
Cong. (2013) (written testimony of Ross Melinchuk, Texas Parks
and Wildlife Department) (http://hastings.house.gov/
uploadedfiles/melinchuktestimony10-10-2013.pdf).
(24) Endangered Species Act Congressional Working Group Forum:
Forum Before the Endangered Species Act Working Group, 113th
Cong. (2013) (written testimony of Roger Marzulla, Marzulla Law
LLC) (http://hastings.house.gov/uploadedfiles/
marzullatestimony10-10-2013.pdf)
(25) Effect of the President's FY 2013 Budget and Legislative
Proposals for the Bureau of Land Management and the U.S. Forest
Service's Energy and Minerals Programs on Private Sector Job
Creation, Domestic Energy and Minerals Production and Deficit
Reduction: Hearing Before the Subcomm. on Energy and Mineral
Res. Of the H. Comm. on Natural Resources, 112th Cong., (2012)
(written testimony of Laura Skaer, Northwest Mining
Association) (http://naturalresources.house.gov/uploadedfiles/
skaertestimony03.20.12.pdf).
(26) Letter from Kathleen Sgamma, Vice President of Government and
Public Affairs, Western Energy Alliance, to Sally Jewell,
Secretary, The Department of the Interior (Nov. 19, 2013)
(file:///C:/Users/Dell/Desktop/Western-Energy-Alliance-Letter-
to-Sec-Jewell-on-GSG-11-19-13.) [This is the hyperlink used in
the final document.]
(27) ESA Decisions by Closed-Door Settlement: Short-Changing
Science, Transparency, Private Property, and State & Local
Economies: Oversight Hearing Before the H. Comm. On Natural
Resources, 113th Cong. (2013) (written testimony of Greg Foley,
Kansas Department of Agriculture) (http://
naturalresources.house.gov/uploadedfiles/foleytestimony12-12-
13.pdf).
(28) At Risk: American Jobs, Agriculture, Health and Species: The
Costs of Federal Regulatory Dysfunction: Joint Oversight Field
Hearing Before the H. Comm. On Natural Resources and H. Comm.
On Agriculture, 112th Cong. (2011)
(http://www.gpo.gov/fdsys/pkg/CHRG-112hhrg66204/pdf/CHRG-
112hhrg66204.pdf).