[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


                                 ______

                   U.S. GOVERNMENT PRINTING OFFICE 
87-400                     WASHINGTON : 2014
____________________________________________________________________________ 
For sale by the Superintendent of Documents, U.S. Government Printing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202ï¿½09512ï¿½091800, or 866ï¿½09512ï¿½091800 (toll-free). E-mail, [email protected].  


                        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

                              ----------                              
                                                                   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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \2\ 16 U.S.C. 1540(g).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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, 
---------------------------------------------------------------------------
        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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \24\ Endangered Species Program: Improving ESA Implementation, U.S. 
Fish and Wildlife Service (http://www.fws.gov/endangered/improving_ESA/
listing_workplan.html).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \30\ Fire and Fuels Buildup, U.S. Forest Service (http://
www.fs.fed.us/publications/policy-analysis/fire-and-fuels-position-
paper.pdf).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \89\ Final Bull Trout Critical Habitat Designation, U.S. Fish and 
Wildlife Service (http://www.fws.gov/pacific/bulltrout/
FinalCH2010.html).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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/).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
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)).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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/).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).



---------------------------------------------------------------------------
        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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).



---------------------------------------------------------------------------
        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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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))
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).



---------------------------------------------------------------------------
        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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \277\ 50 CFR Part 17 (http://www.regulations.gov/
#!documentDetail;D=FWS-HQ-ES-2013-0073-0001).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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/).
---------------------------------------------------------------------------
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).

                                  
